Exhibit 10.116
LEASE
A. Lessor:
Name: Davis Partnership
Address: c/o Robert Davis
1244 North Shore Road
Lake Oswego, OR 97034
B. Lessee: United Stationers Supply Co.
an Illinois corporation qualified to do business in Oregon.
Address: United Stationers Supply Co.
2200 East Golf Road
Des Plaines, IL 60016-1267
C Date of execution of Lease September 20, 1996
D. Address of premises
4409 S.E. 24th Avenue, Portland, OR 97202
E. Legal description
Spantons Add TL3 of Lots 6-11 and 20-25 Block 6 Map 3432 plus TL1
of Block 6 Map 3432 plus the south 35@ feet of Lot 18 Block 3 and
the north 24 1/2 feet of Lot 19 Block 3 Map 3432, all per the
Multnomah County Assessor's tax maps for 1995-96.
F. Commencement date of Lease: March 1, 1997
G. Expiration date of Lease: February 28, 2002
H. Initial rental: $ 21,5B2.00 per month.
J. Lease deposit $ none
K. Rental adjustments: See First Addendum
L. Lessee's use of premises: Office and Warehouse
M. Additional provisions regarding repairs: See First Addendum
N. Liability insurance coverages to be provided by Lessee:
Injury to one person: $ 0ne Million
Injuries arising out of a single occurrence: $ Five Mi11ion
Property damage: $ Full Replacement Value
P. Term of payment for business interruption: 12 months at 100% occupancy
Q. Permitted period for display of Lessor's signs: 180 days
R. Liquidated damages for holding over: $ Double the latest rent, prorated
on a daily basis.
S. Additional terms and conditions: See First Addendum
Davis Partnership United Stationers Supply Co.
By: By:
Title: Title:
Lessor Lessee
THIS AGREEMENT AND LEASE was made and entered into by and between the
"Lessor" identified at paragraph A. above and the "Lessee" identified at
Paragraph B. above on the date set forth at Paragraph C. above.
Lessor does hereby lease, demise and let unto Lessee the premises
located and described in Paragraphs D. and E. above for a term commencing at
12:01 a m on the date set forth at Paragraph F. above and expiring at
midnight on the date set forth at Paragraph G. above.
1. TENANT'S ACCEPTANCE OF PROPERTY. The Lessee accepts the building,
improvements, and personalty on the leased premises (all of which are
hereinafter referred to as "the Leased Property".) in their present state and
without any representation or warranty by the Lessor as to the condition of
such property or as to the use which may be made thereof, except as stated in
the first addendum. The lessee acknowledges that the Leased Property, the
title thereto, the streets, sidewalks, driveways, parking areas, curbs,
utilities and structures adjoining the same, any subsurface conditions
thereof, and the present use and non-uses thereof have been examined by the
Tenant. The Lessor shall not be responsible for any later defect or change
of condition in the Leased Property and the rent hereunder shall in no case
be withheld or diminished on account of any defect in the Leased Property and
change in conditions thereof, any damage occurring thereto, or the existence
with respect thereto of any violations of the laws or regulations of any
government authority except as may be otherwise specifically provided herein.
The obligation of the Lessee to pay the full rent herein reserved shall not
be affected by any future act of omission on the part of the Lessor with
respect to the tenantability of the Leased Property, or the building of which
it is a part, except as otherwise specifically provided herein. The taking
of possession of the Leased Property by the Lessee shall be conclusive
evidence that the Lessee accepts the same "as is" and that the Leased
Property and the building and land of which the same form a part were in good
condition at the time possession was taken.
2. RENTAL. The initial rent to be paid by the Lessee to the Lessor is
the sum set forth at Paragraph H. above, said sum to be due and payable
monthly commencing on the commencement date set forth at Paragraph F. above
and paid monthly thereafter on the first day of each month during the term
hereof.
3. LEASE DEPOSIT. Concurrently with the execution of this Lease, the
Lessee has deposited with the Lessor the sum set forth at Paragraph J. above
as security for the performance by the Lessee of all the conditions required
to be performed by the Lessee under this Lease.
4. RENT REVISION. At the time or times, and in accordance with the
terms et forth in Paragraph K. above, the rental set forth in Paragraph H.
above shall be adjusted for the remaining term of the Lease.
5. USE OF PREMISES.
(i) The Lessee shall use the Leased Property for the conduct of the
business described at Paragraph L. above and for no other purposes whatsoever
without the Lessor's prior written consent.
(ii) The Lessee will not make any unlawful, improper or offensive use of
the Leased Property; he will not suffer any strip or waste thereof; he will
not permit an objectionable noise or odor to escape or to be emitted from the
Leased Property or do anything or permit anything to be done upon or about
the Leased Property in any way tending to create a nuisance.
(iii) The Lessee will not allow the Leased Property at any time to fall
into such a state of repair or disorder as to increase the fire hazard
thereon; he shall not install any power machinery on the Leased Property
except under the supervision and with written consent of the Lessor; he shall
not store gasoline or other highly combustible materials on the Leased
Property in such a way or for such a purpose that the fire insurance rate on
the building in which the Leased Property is locates is thereby increased or
that would prevent the Lessor from taking advantage of any rulings of the
Insurance Rating Bureau of the state in which the Leased Property is situated
which would allow the Lessor to obtain reduced premium rates for long term
fire insurance policies.
(iv) The Lessee shall comply at the Lessee's own expense with all laws
and requiations of any municipal, county, state, federal or other public
authority respecting the use of the Leased Property, including the Americans
With Disabilities Act.
(v) The Lessee will not overload the floors of the Leased Property in
such a way as to cause any undue or serious stress or strain upon the
building in which the Leased Property is located, or any part thereof, and
the Lessor shall have the right, at any time, to call upon any competent
engineer or architect whom the Lessor may choose to decide whether or not the
floors of the Leased Property, or any part thereof, are being overloaded so
as to cause any undue or serious stress or strain on said building, or any
part thereof, and the decision of said engineer or architect shall be final
and binding upon the Lessee; and in the event that the engineer or architect
so called upon shall decide that in his opinion the stress or strain is such
as to endanger or injure said building, or any part thereof, then and in that
event the Lessee agrees immediately to relieve said stress or strain either
by reinforcing the building or by lightening the load which causes such
stress or strain in a manner satisfactory to the Lessor.
6. UTILITIES. The Lessee shall pay for all heat, light, water, power,
garbage and other services of utilities used in the Leased Property during
the term of this Lease.
7. REPAIRS AND IMPROVEMENTS.
(i) The Lessor shall not be required to make any repairs, alterations,
additions or improvements to or upon the Leased Property during the term of
his Lease, except only those hereinafter specifically provided for; the
Lessee hereby agrees to maintain and keep the Leased Property including, but
not limited to, all interior and exterior doors, heating, ventilating and
cooling systems, interior wiring, plumbing and drain pipes to sewers or
septic tank, in good order and repair during the entire term of the Lease at
the Lessee's own cost and expense, and to replace all glass which may be
broken or damaged during the term hereof in the windows and doors of the
Leased Property with glass of as good or better quality as that now in use;
the Lessee hereby agrees to keep and maintain the sidewalks, driveways and
parking areas immediately adjoining the Leased Property in a safe and orderly
condition.
(ii) Except as otherwise provided in Paragraph M. above, the lessor
agrees to maintain in good order and repair during the term of this Lease the
exterior walls, roof, gutters, downspouts and foundations of the building in
which the Leased Property is situated. It is understood and agreed that the
Lessor reserves and at any and all times shall have the right to alter,
repair or improve the building of which the Leased Property is a part, or to
add thereto, and for that purpose at any time may erect scaffolding and all
other necessary structures upon the Leased Property, and the Lessor and
Lessor's representatives, contractors and workmen for the aforedescribed
purposes may, upon reasonable advance notice, enter in or about the Leased
Property with such materials and equipment as Lessor may deem necessary
therefore. Lessee waives any claim to damages, including loss of business
resulting therefrom.
8. RIGHT OF ENTRY. It shall be lawful for the Lessor, his agents and
representatives, at any reasonable time upon reasonable notice, except in the
case of emergency, to enter into or upon the Leased Property for the purpose
of examining into the condition thereof,
or any other lawful purpose. If during the last month of the term the Lessee
shall have removed all, or substantially all, of the Lessee's property from
the Leased Property, the Lessor may immediately enter and alter, renovate,
and redecorate the Leased Property, without elimination or abatement of rent
without liability to the Lessee for any compensation, and such acts shall
have no effect upon this Lease.
9. RIGHTS OF ASSIGNMENT. The Lessee will not assign, transfer, pledge,
hypothecate, surrender or dispose of this Lease, or any interest herein, or
permit any other person or persons whomsoever to occupy the Leased Property
without the written consent of the Lessor being first obtained in writing.
This Lease is personal to the Lessee. Lessor interest, in whole or in part,
cannot be sold, assigned, transferred, seized or taken by operation at law,
or under or by virtue of any execution or legal process, attachment
proceedings instituted against Lessee, or under or by virtue of any
bankruptcy or insolvency proceedings had in regard to the Lease or in any
other manner, except as above mentioned. Subject to the foregoing, all
rights, remedies and liabilities herein given or imposed upon either of the
parties hereto, shall extend to, inure to the benefit of, and bind, as the
circumstances may require, the heirs, personal representative, successors
and, so far as this Lease is assignable by the terms hereof, the assigns of
all parties.
10. LIENS. The Lessee will not permit any lien of any kind, type or
description to be placed or imposed upon the Leased Property or any part
thereof.
11. ICE, SNOW AND DEBRIS. If the Leased Property is located at street
level, then at all times Lessee shall keep the sidewalks, curbs, driveways,
and parking spaces immediately adjoining the building (whether or not they
are included herein as Leased Property), in front thereof free and clear of
ice, snow, rubbish, debris and obstructions and if the Lessee occupies the
entire building, he will not permit rubbish, debris, ice or snow to
accumulate on the roof of said building so as to stop up or obstruct gutter
downspouts or cause damage to said roof,
12. ADVERTISING SIGNS. The lessee will not use the outside walls of the
Leased Property, or allow signs or devices of any kind to be attached thereto
or suspend therefrom, for advertising or displaying the name or business of
the Lessee or for any purpose whatsoever without the written consent of the
Lessor.
13. INSURANCE COVERAGES. The Lessee shall, at all times during the term
hereof, at his own expense, keep in effect, furnish and deliver to the Lessor
insurance policies (or certificates evidencing same,) in form and with an
insurer satisfactory to the Lessor insuring:
(I) Both the Lessor and Lessee against all liability for damage to
personal property in or about said Leased Property. The amount of said
liability insurance shall be not less than the amount set forth in Paragraph
N. above.
(ii) The Lessor against the damage or destruction of the Leased Property
by fire or other casualty under a standard fire insurance policy with
standard specific extended form coverage endorsement to 100% of the full,
current replacement value.
(iii) The Lessor against business interruption including the payment of
rental to the Lessor for the period set forth in Paragraph P. above.
The renewal forms of each such policy or certificate shall be delivered
to the Lessor not less than 30 days prior to the expiration of the current
policy. Each policy shall provide that it cannot be canceled as to the Lessor
with less than 15 days' notice to it.
14. INDEMNIFICATION. The Lessee agrees to and shall indemnify and hold
the Lessor harmless against any and all claims and demands arising from,
(i)the negligence of the Lessee, his officers, agents, invitees and/or
employees; (ii)the failure by the Lessee to perform any covenant required to
be performed by the Lessee hereunder, (iii)accident, injury, or damage which
shall happen in or about the Leased Property or appurtenances, or on or under
the adjoining streets, sidewalks, driveways, parking areas, or curbs, or
resulting from the condition, maintenance, or operation of the Leased
Property or of the adjoining streets, sidewalks, driveways, parking areas or
curbs. Lessee's failure to comply with any requirements of any governmental
authority; and (iv)any mechanic's lien, or security agreement, filed against
the Leased Property as a result of the acts of the Lessee. The Lessee shall
at his own expense defend the Lessor against any and all suits or actions
arising out of the aforedescribed acts or acts, and all appeals therefrom and
shall satisfy and discharge any judgment which may be awarded against Lessor,
including but not limited to, the Lessor's attorney in any such suit or
action.
15. TAXES AND ASSESSMENTS. The Lessee shall pay all real property
taxes, assessments (general and special) and other public charges levied,
assessed or otherwise imposed upon the Leased Property, all promptly before
the same or any part thereof become past due; provided, however, that any
municipal, county or state assessment over $2,000.00 total which become or
may become a lien on the premises, may be bonded by the Lessee as provided by
law, and the Lessee shall pay all installment on principal and interest on
such bonds during his tenancy, but shall be released from all obligation for
payment of installments becoming due after the end of the lease herein
reserved without proration. The Lessee shall also pay promptly, when due, all
taxes levied against his own personal property and all taxes, assessments and
public charges whatsoever arising in respect to, and because of, the Lessee's
occupancy, use or possession of the leased property. Such real property
taxes for which the commencement and expiration of the term of this Lease
shall fall shall be appropriately pro-rated and adjusted between the Lessor
and the Lessee. The Lessee shall furnish to the Lessor, within 30 days after
the date any amount is payable by the Lessee, as provided in this Paragraph,
copies of official receipts of the appropriate taxing authority or other
proof satisfactory to the Lessor evidencing payment.
16. LESSEE'S ALTERATIONS AND IMPROVEMENTS. No alteration, addition, or
improvement to the Leased Property shall be made by the Lessee without the
written consent of the Lessor. Any alteration, addition, or improvement made
by the Lessee after such consent shall have been given, and any fixtures
installed as part thereof, (except Lessee movable trade fixtures), shall at
the Lessor's option, become the property of the Lessor upon the expiration or
other sooner termination of this Lease; provided, however, the Lessor shall
have the right to require the Lessee to remove such fixtures at the Lessee's
cost upon such termination of this Lease.
17. DAMAGE BY CASUALTY OR FIRE AND DUTY TO REPAIR. If all or any part
of the Leased Property is damaged or destroyed by fire or other casualty
subject to coverage under the standard fire insurance policy with standard
special or extended form coverage endorsement applicable to the Leased
Property, the Lessor shall, except as otherwise provided herein, repair and
rebuild the Leased Property with reasonable diligence. If there is a
substantial interference with the operation of the Lessee's business in the
leased Property, the then applicable rental shall be equitably apportioned
for the duration of such repairs. Notwithstanding the foregoing provisions,
if at any time within eighteen months prior to the end of the initial or any
renewal term, and provided the Lessee shall not have served upon the Lessor
notice of renewal or extension as herein provided, the Leased Property is
completely destroyed or so damaged by fire or other casualty covered by
insurance as to render it unfit for the use as set forth at Paragraph L.
above, the Lessor may terminate this Lease on 30 days' written notice tot he
Lessee. If all or any substantial part of the Leased Property is damaged or
destroyed by casualty which
is not subject to coverage under the standard fire insurance policy with
standard special or extended form coverage endorsement applicable to the
Leased Property, or if subject to such coverage, the loss is, in fact, not
covered to within 100% of replacement, the Lessor may terminate this Lease
upon 30 days' written notice to the Lessee. If the Lessor shall terminate
this Lease as provided herein, all rent shall be apportioned to the date of
termination and all insurance proceeds shall belong to the Lessor. Except to
the extent provided for in the Paragraph, neither the rent payable by the
Lessee nor any of the Lessee's other obligations under any provision of this
Lease shall be affected by any damage to or destruction of the Leased
Property by any cause whatsoever, and the Lessee hereby expressly waives any
and all additional rights it might otherwise have under any law or statute.
18. WAIVER OF SUBROGATION RIGHTS. Neither the Lessor nor the Lessee
shall be liable to the other for loss arising out of damage to, or
destruction of, the Leased Property or the contents thereof, when such loss
is caused by any of the perils which are or could be included within or
insured against by a standard fire insurance policy with standard extended or
special form coverage endorsement, including sprinkler leakage insurance and
business interruption insurance, if any. All such claims for any and all
loss, however caused, hereby are waived. Said absence of liability shall
exist whether or not the damage or destruction is caused by the negligence of
either Lessor or Lessee or by any of their respective agents, servants or
employees. Neither the Lessor nor the Lessee shall have any interest or claim
in the other's insurance policy or policies or the proceeds thereof, unless
specifically covered therein as a joint assured and notwithstanding any
provision hereof requiring the Lessee to furnish such coverages on behalf of
the Lessor. If the Lessee, at any time, is unable to obtain inclusion of any
of the matters set forth above in any of its policies, the Lessee shall, at
its own expense, have the Lessor named in such policies as one of the
insureds.
19. EMINENT DOMAIN.
(i) If the whole of the Leased Property shall be taken for any public or
any quasi-public use under any statute or by right of eminent domain, or by
private purchase in lieu thereof, then the Lease shall automatically
terminate as of the date that title shall be taken. If any part of the Leased
Property shall be so taken as to render the remainder thereof unusable for
the purposes for which the Leased Property was leased as set forth in
Paragraph L., then the Lessor and the Lessee shall each have the right to
terminate this Lease on 30 days' notice to the other given not later than the
date of such taking. In the event that this Lease shall terminate or be
terminated, the rental shall, if and as necessary, be equitably adjusted.
(ii) If a part of the Leased Property shall be taken as provided in
Subparagraph (i) above, without so rendering the remainder of the Leased
Property unusable, then the Lessor shall rebuild and restore the Leased
Property with reasonable diligence, and if there is a substantial
interference with the operation of the Lessee's business in the Leased
Property the then applicable rental shall be equitably apportioned for the
duration of such rebuilding and restoration; provided, however, that the cost
of such work shall not exceed the proceeds of its condemnation award; and
provided, further, that if such taking occurs within 18 months prior to the
end of the initial or any renewal term, the Lessor may upon 30 days' notice
given to the Lessee on or before the date of such taking elect not to so
rebuild or restore the Leased Property.
(iii) All compensation awarded or paid upon such a total or partial
taking of the Leased Property shall belong to and be the property of the
Lessor without any participation by the Lessee; provided, however, that
nothing contained herein shall be construed to preclude the Lessee from
prosecuting any claim directly against the condemning authority in such
condemnation proceedings for loss of business, or depreciation to damage to,
or cost of removal of, or for the value of stock, trade fixtures, furniture,
and other personal property belonging to he Lessee; provided, further,
however, that no such claim shall diminish or otherwise adversely affect the
Lessor's award or the award of any fee mortgagee.
20. LESSOR'S SIGNS. During the periods specified in Paragraph Q. above,
the Lessor may post on the Leased Property, including the windows thereof,
signs of moderate size notifying the public that the premises are "for sale"
or "for rent" or "for lease".
21. SURRENDER UPON TERMINATION. At the expiration of this term of the
Lease or upon any sooner termination hereof, the Lessee will quit and deliver
up said Leased Property and all future erections or additions to or upon the
same, broom clean, to the Lessor or those having Lessor's estate in the
premises, peaceably quiet, and in a good order and condition, reasonable use
and wear thereof, damage or loss excused pursuant to the terms hereof
excepted, as the same are now in or hereafter may be put in by the Lessor and
Lessee.
22. LIQUIDATED DAMAGES. In the event that the Lessee shall fail to
deliver up the Leased Property as above agreed, he shall become liable for
the payment, at the option of the Lessor, of a sum for each and every day
which he holds possession and fails to deliver over possession in the amount
set forth at Paragraph R. above. The lessor by availing itself of the rights
and privileges granted by this provision and the acceptance of said
liquidated rental shall not be deemed to have waived any of the rights and
privileges granted in other parts of this Lease, but the rights granted under
this provision shall be considered, in any event, as in addition to, and not
in exclusion of, such rights and privileges.
23. HOLDING OVER. In the event the Lessee for any reason shall hold
over after the expiration of this Lease, such holding over shall not be
deemed to operate as a renewal or extension of this Lease, but shall only
create a tenancy from month-to-month which may be terminated at will at any
time by the Lessor.
24. ATTORNEY'S FEES AND COURT COSTS. In case suit, action, or
arbitration is instituted to enforce compliance with any of the terms,
covenants or conditions of this Lease, or to collect the rental which may
become due hereunder, or any portion thereof or to enforce any right of
Lessor while Lessee is holding over after expiration hereof, the losing party
agrees to pay such sum as the trial court or arbitrators may adjudge
reasonable as attorney's fees to be allowed the prevailing party in such
suit, action, or arbitration and in the event any appeal is taken from any
judgment or decree in such suit or action , the losing party agrees to pay
such further sum as the appellate court shall adjudge reasonable as
prevailing party's attorney's fees on such appeal.
25. WAIVER. Any waiver by either party of any breach of any covenant
herein contained to be kept and performed by the other party shall not be
deemed or considered as a continuing waiver, and shall not operate to bar or
prevent the party from declaring as forfeiture for any succeeding breach,
either of the same condition or covenant or otherwise.
26. NOTICES. Any notice required by the terms of this Lease to be given
by one party to the other or desired so to be given, shall be sufficient if
in writing contained in a sealed envelope, deposited in the U.S. Registered
or Certified Mails with postage fully prepaid, and if intended for the
Lessor, then if addressed to said Lessor at the address set forth in
Paragraph A. above and if intended for the Lessee, then if addressed to the
Lessee at the address set forth for it in Paragraph B. above.
27. DELAY OF POSSESSION. If the Lessor for any reason cannot deliver
possession of the Leased Property to the Lessee at the commencement of the
Lease term, this Lease shall not be void or voidable, nor shall the Lessor be
liable to the Lessee for any loss or damage resulting therefrom, but there
shall be an abatement of rent for the period between the commencement of the
Lease term and the time when the Lessor does deliver possession.
28. QUIET ENJOYMENT. The Lessee, upon the payment of the rent herein
reserved and upon the performance of, and subject to the provisions of this
Lease, shall at all times during the Lease term and during any extension or
renewal term peaceably and quietly enjoy the Leased Property without any
disturbance from the Lessor or from any other person claiming through the
Lessor.
29. PERFORMANCE OF LESSEE'S OBLIGATIONS. If the Lessee shall be in
default hereunder, the lessor may cure such default on behalf of the Lessee,
in which event the Lessee shall reimburse the Lessor for all sums paid to
effect such cure, together with interest at the highest legal rate. In order
to collect such reimbursement the Lessor shall have all the remedies
available under this Lease for a default in the payment of rent.
30. ARBITRATION. In the event of any controversy between the parties
over the application of Paragraphs 17., 19., or 27. hereof, the same shall be
settled by arbitration at Portland, Oregon in accordance with the then
existing rules of the American Arbitration Association, and judgment upon
the award rendered may be entered in any court having jurisdiction thereof.
31. DEFAULT.
(I) The Lessor may give the Lessee five days' notice of intention to
terminate this lease in any of the following circumstances:
1. If the Lessee shall be in default in the performance of any
covenant of the lease (other than the covenants for the payment of basic rent
or additional rent) and such is not cured within 15 days after written notice
thereof given by the Lessor; or, if such default shall be of such nature that
it cannot be cured completely within such 15-day period, if the Lessee shall
not have promptly commenced the cure within such 15-day period or shall not
thereafter proceed with reasonable diligence and in good faith to remedy such
default.
2. If the Lessee shall be adjudicated a bankrupt, make a general
assignment for the benefit of creditors, or the benefit of any insolvency
act, or if a permanent receiver or trustee in bankruptcy shall be appointed
for the Lessee's property and such appointment is not vacated within 90 days.
For these purposes the "Lessee" shall mean the tenant then in possession of
the Leased Property.
3. If the Leased Property becomes abandoned for a period of 30
days.
4. If this Lease shall be assigned or the Leased Property sublet
other than in accordance with the terms of this Lease and such default is not
cured within 15 days after notice.
(ii) The Lessor may give the Lessee 10 days written notice of intention
to terminate this Lease if the Lessee shall be in default in the payment of
the initial rent or any additional rent.
(iii) If the Lessor shall give the notice of intention to terminate
provided above, then at the expiration of such period this Lease shall
terminate as completely as if that were the date herein definitely fixed for
the expiration of the term of this Lease, and the Lessee shall then surrender
the Leased Property to the Lessor. If this Lease shall so terminate, it
shall be lawful for the Lessor, at its option, without formal demand or
notice of any kind, to re-enter the Leased Property by a forcible entry and
detainer action or by any other means, including force, and to remove the
Lessee and his possessions therefrom without being liable for any damages
therefor. Upon the termination of this Lease, as herein provided, the Lessor
shall have the right, at its election , to terminate any sublease then in
effect, without the consent of the sublessee concerned.
(iv) The Lessee shall remain liable for all its obligations under this
Lease despite the Lessor's re-entry, and the Lessor may re-rent or use the
Leased Property as agent for the Lessee, if the Lessor so elects. The Lessee
waives any legal requirement for notice of intention to re-enter and any
right of redemption.
(v) If this Lease shall terminate as provided in this Paragraph the
Lessor shall have the right, at its election at any time, to recover from the
Lessee the amount by which the rent and charges equivalent to rent reserved
herein for the balance of the term shall exceed the reasonable rental value
of the Leased Property for the same period.
32. ESTOPPEL CERTIFICATE. Each party, within ten (10) days after
notice from the other party, shall execute and deliver to the other party, in
recordable form a certificate stating that this Lease is unmodified and in
full force and effect, or in full force and effect as modified, and stating
the modifications. The certificate shall also state the day on which the term
of the Lease commenced, the date of expiration of the initial term of the
Lease, the amount of the minimum monthly rent, the dates to which the rent
has been paid in advance, and that the Lease represents the entire agreement
between the parties, that there are no defaults by the party to whom the
certificate is given not any defenses or offsets against such party, that all
amounts due as rental under the Lease have been paid through and including a
date specified in the certificate, and the amount of any security deposit or
prepaid rent. Failure to deliver the certificate within such ten (10) days
shall be conclusive upon the party failing to deliver the certificate for the
benefit of the party requesting the certificate that this Lease is in full
force and effect, that it has not been modified except as may be requested by
the party requesting the certificate, and that there are no defaults by or
offsets or defenses against the party requesting the certificate.
33. SUBORDINATION.
(a) This Lease , at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust or other security now or hereafter placed upon
the real property of which the premises are a party and to any and all
advances made on the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. Notwithstanding such
subordination, Lessee's right to quiet possession of the premises shall not
be disturbed if Lessee is not in default and so long as Lessee shall pay the
rent and observe and perform all of the provisions of this Lease, unless this
Lease is otherwise terminated pursuant to its terms . If any mortgagee,
trustee or ground lessee shall elect to have this Lease prior to the lien of
its mortgage, deed of trust or ground lease and shall give written notice
thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed of
trust or ground lease, whether this Lease is dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of recording
thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's
failure to execute such documents within 10 days after written demand shall
constitute a material default by Lessee hereunder.
34. MISCELLANEOUS PROVISIONS.
(i) Time is of the essence of this Lease with respect of performance by
each party of his obligations hereunder.
(ii) In construing this Lease, masculine or feminine pronouns shall be
substituted for those neuter in form and vice versa, and plural terms shall
be substituted for singular and singular for plural in any place in which the
context requires.
(iii) If there is more than one party tenant, the covenants of the
Lessee shall be the joint and several obligations of each such party, and, if
the Lessee is a partnership the covenants of the Lessee shall be the joint
and several obligations of each of the partners and the obligations of the
firm.
(iv) The parties agree to execute and deliver any instruments in writing
necessary to carry out any agreement, term, conditions, or assurance in this
Lease whenever occasion shall arise and request for such instruments shall be
made.
(v) The specified remedies to which the Lessor may resort under the
terms of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress, as provided herein or by law, to
which the Lessor may be lawfully entitled in case of any breach or threatened
breach by the Lessee of any provision or provisions of this Lease.
(vi) The captions of this Lease are inserted only as a matter of
convenience and for reference and in no way define, limit, or describe the
scope or intent of the Lease , nor in any way affect this Lease.
(vii) This Lease, together with any written agreements which shall have
been executed simultaneously herewith, contains the entire agreement and
understanding between the parties. There are no oral understandings, terms,
or conditions, and neither party has relied upon any representation, express
or implied, not contained in the Lease or the simultaneous writings
heretofore referred to. Al l prior understandings, terms, or conditions are
deemed merged in this Lease. This Lease cannot be changed or supplemented
orally.
(viii) If any provision of this Lease shall be declared invalid or
unenforceable, the remainder of this Lease shall continue in full force and
effect.
35. ADDITIONAL TERMS AND CONDITIONS. Additional terms and conditions
of this Lease are set forth at Paragraph S. above (and attached) and have the
same force and effect as if printed here; provided, however, that in the
event that any provisions of Paragraph S. conflict with any other provision
hereof, and both may not be given effect Paragraph S. shall control.
36. ENVIRONMENTAL MATTERS. Tenant warrants for itself, and for any
subtenant or assignee, that it does not and shall not during any time when
it, its subtenant or assignee is in possession of the Property allow,
possess, generate, sue, release, store or deposition, over or beneath the
Property any hazardous substances (as defined in ORS 466.540, et seq. and
regulations related thereto), any substances, materials or contaminants
regulated under 42 USC Section 3001, and regulations related thereto, or any
polychlorinated biphenyls, nor shall it install, use or decommission any
underground storage tank, except in accordance with governing federal, state
and local laws or regulations. The use of the premises for any activities
involving, directly or indirectly, the use, generation, treatment, storage or
disposal of any hazardous or toxic chemical material, substance or waster,
except as required or allowed in the normal course of each Tenant's business
in accordance with local, state or federal environmental protection laws and
regulations is hereby prohibited. Tenant agrees to indemnify Landlord and any
lender suing the Property as security from and against any and all costs,
expenses, including, without limitation, attorneys' fees for settlement, at
trial or on appeal; losses; actions; suits; claims, judgments and any other
liability whatsoever in connection with the breach by Tenant, tenant's
subtenant or assignee of any federal, state or local environmental protection
laws or regulations. Upon request from Landlord, Tenant will furnish an
environmental estoppel certificate in commercially reasonable form to
Landlord.
IN WITNESS WHEREOF, the Lessor identified at Paragraph A. above and the
Lessee identified at Paragraph B. above have executed this instrument in
duplicate, the day and year set forth at Paragraph C. above, any corporate
signature being by the authority of the board of directors of such
corporation.
FIRST ADDENDUM
LESSOR: Davis Partnership
LESSEE: United Stationers Supply Co.
LOCATION: 4409 S.E. 24TH Avenue, Portland, Oregon
RENTAL:
First year-$21,582.00 per month
(March 1, 1997-February 28, 1998)
Second year-$22,230.00 per month
(March 1, 1998-February 28, 1999)
Third year-$22,896.00 per month
(March 1,1999-February 29, 2000)
Fourth year-$23,583.00 per month
(March 1, 2000-February 28, 2001)
Fifth year-$24,291.00 per month
(March 1, 2001-February 28, 2002)
REPAIRS: Lessor shall be responsible for the maintenance of the
concrete floors if major settlements should occur to said
floors. Lessee shall be responsible for all other maintenance
of the concrete floors, except where major settlements occur.
IMPROVEMENTS: Lessor, at Lessor's sole cost and expense, shall perform those
tenant improvements listed on the attached exhibit entitled
"Tenant Improvements" unless the parties subsequently agree in
writing on additional improvements. The first $2,000 of cost
overrun in excess of $59,723 for the listed items shall be
paid by Lessor, but still cause the monthly rent to be increased
by an amount which shall permit such costs to be amortized over
the term of the lease assuming a nine (9) percent interest rate.
Any cost overruns over $2,000 shall be paid for by the Lessee.
Savings on any allowance item may be applied to overruns on
other items. Any net savings on allowance items will be applied
as a credit against rent at project completion. Lessor will use
best efforts to complete the Tenant Improvements as soon as
possible. All parties hereto acknowledge that the exterior
painting and parking lot striping will probably not be completed
until May or June of 1997.
If the parties subsequently agree to additional tenant
improvements, in writing, the cost of the additional
improvements will cause the rent to be increased by an amount
which shall permit such costs to be amortized over the terms
of the Lease assuming a nine (9) percent interest rate.
RIGHT TO CANCEL: The Lessee, upon not less than 180 days advance written
notice, may terminate the lease effective February 28, 1999
or any date thereafter. Lessee may only exercise this right of
termination if the reason for termination is the relocation of
Lessee's business to a new building in the states of Oregon or
Washington that is at least 150 percent larger than the building
that is the subject of this lease. As consideration for so
terminating this Lease, the Lessee agrees to pay as cost
reimbursement to Lessor an amount equal to the unamortized
portion of the Tenant Improvements and the unamortized portion
of a $20,000 real estate fee. Said amortization shall assume a
9 percent interest rate and five-year amortization period.
Lease cancellation fee must be paid at the time cancellation
notice if delivered.
CONSENT: Where the consent of either party is required, such consent shall
not be unreasonably withheld or delayed.
LESSOR'S
REPRESENTATIONS: Lessor represents and warrants to Lessee that the premises,
when originally built, was in compliance with the building code
in effect at that time.