BASIC LEASE INFORMATION
PRIVATE
LEASE DATE: July 14, 1997
LANDLORD: SPIEKER PROPERTIES, L.P.
a California limited partnership
ADDRESS OF LANDLORD: Spieker Properties
4380 S.W. Macadam Avenue, Suite 100
Portland, Oregon 97201
TENANT: Contour Medical, Inc.
a Nevada corporation
PREMISES: Airport Way Commerce Park
14135 N.E. Airport Way
Portland, OR 97230
Paragraph 1
Premises: Approximately 39,375 square feet in Building B of an approximate
123,750 square foot building (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 in red on the plan attached hereto as
Exhibit A, and being part of the real property described in Exhibit B attached
hereto. The measurements of the Premises and the Project is approximate, but
binding on the parties for all purposes of this Lease.
Paragraph 1
Lease Term: Commencing on the "Commencement Date" as hereinafter defined and
ending 72 months thereafter except that in the event the Commencement Date is
a date other than the first day of a calendar month, said term shall extend
for said number of days in addition to the remainder of the calendar month
following the Commencement Date.
Paragraph 1
Scheduled Term Commencement Date: September 1, 1997
Paragraph 2
Monthly Base Rent: September 1, 1997 - August 31, 1998 $12,469.00
September 1, 1998 - August 31, 1999 $12,843.00
September 1, 1999 - August 31, 2000 $13,228.00
September 1, 2000 - August 31, 2001 $13,625.00
September 1, 2001 - August 31, 2002 $14,034.00
September 1, 2002 - August 31, 2003 $14,455.00
Paragraph 2B Security Deposit: $0.00
Paragraph 4A Tenant's Initial Monthly Escrow Payment
for Taxes and Other Charges: $ 1,358.00
Paragraph 7 Tenant's Initial Monthly Common Area
Maintenance Charge: $ 1,536.00
Paragraph 13B Tenant's Initial Monthly Insurance
Escrow Payment: $ 59.00
Tenant's Initial Monthly Payment Total: $15,422.00
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 information. In the event of
any conflict between any Basic Lease Information and the Lease, the former
shall control.
Please Initial
Tenant DFF
Landlord JBS
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between SPIEKER PROPERTIES,
L.P., a California Limited Partnership hereinafter referred to as "Landlord",
and CONTOUR MEDICAL, INC., a Nevada corporation hereinafter 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 in red on Exhibit
"A" attached hereto (hereinafter referred to as the "Premises") and
incorporated herein by reference, together with all rights, privileges,
easements, appurtenances, and amenities belonging to or in any way
appertaining to the Premises and together with the buildings and other
improvements situated or to be situated upon land described in Exhibit "B"
attached hereto.
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, attached hereto, (the "Lease Term"),
provided, however, that, in the event the "Commencement Date" is a date other
than the first day of a calendar month, said term shall extend for said number
of months in addition to the remainder of the calendar month following the
"Commencement Date".
C. The "Commencement Date" shall be the Scheduled Term Commencement Date
shown in the Basic Lease Information, attached hereto and incorporated herein
by reference. 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 and the rent commencement date, in recordable
form.
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord Base Rent for the Premises, in
advance, without demand, deduction or set off, for the entire Lease Term
hereof at the rate specified in the Basic Lease Information, payable in
monthly installments. One such monthly installment shall be due and payable
on the date hereof and a like monthly installment shall be due and payable on
or before the first day of each calendar month succeeding the Commencement
Date recited above during the Lease Term, except that the rental payment for
any fractional calendar month at the commencement or end of the Lease period
shall be prorated on the basis of a 30-day month.
3. USE. The Premises shall be used only for the purpose of general office,
receiving, storing, shipping, assembly, light manufacturing, and selling
medical related products, materials and merchandise made and/or distributed by
Tenant and for such other lawful purposes as may be incidental thereto.
Outside storage, including without limitation, trucks and other vehicles, is
prohibited without Landlord's prior written consent which shall not be
unreasonably withheld. Tenant shall at its own cost and expense obtain any
and all licenses and permits necessary for its use of the Premises. Tenant
shall comply with all governmental laws, ordinances and regulations applicable
to the use 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. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises, nor take any other action which would constitute a
nuisance or would disturb or endanger any other tenants of the building in
which the Premises are situated or unreasonably interfere with their use of
their respective Premises. In addition to any other remedies Landlord may
have for a breach by Tenant of the terms of this Section 3, Landlord shall
have the right to have Tenant evicted from the Premises. Without Landlord's
prior written consent, which shall not be unreasonably withheld, Tenant shall
not receive, store or otherwise handle any product, material or merchandise
which is explosive or highly flammable. 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. Landlord warrants the
Tenant's usage of the Premises, as described above, is in compliance with
Landlord's insurance guidelines. In the event Tenant's misuse of Premises
shall result in an increase in insurance premiums, Tenant shall be solely
responsible for said 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, license fees and
other charges of any kind and nature whatsoever, payable by Landlord 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 real estate described in Exhibit
"B" attached hereto, 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 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 rental 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 pro rata 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 pro rata share of the Charges, unless the Lease is
expired, in which case such overages shall be returned immediately to Tenant,
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 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 may be adopted.
B. If Tenant should fail to pay any Escrow Payments 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 so much additional rental owing by Tenant to Landlord and due and
payable upon demand as additional rental plus 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 of 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 hereof.
(2) Tenant may, alone or along with other tenants of the building
containing the Premises, in its or their own name(s) dispute and contest any
Charges by appropriate proceedings diligently conducted in good faith, but
only after Tenant and all other tenants, if any, joining with Tenant in such
contest have deposited with Landlord the amount so contested and unpaid or
their proportionate shares thereof as the case may be, 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, and Tenant's share of any
excess shall be returned to Tenant. Tenant further agrees to pay to Landlord
upon demand Tenant's share (as among all Tenants who participated in the
contest) of all court costs, interest, penalties and other liabilities
relating to such proceedings. Tenant hereby indemnifies and agrees to hold
harmless the Landlord from and against any cost, damage or expense (including
attorney's fees) in connection with any such proceedings only to the extent
that Tenant has supported such action. The prevailing party shall receive all
courts costs, interest penalties, and other liabilities relating to such
proceedings from the other party.
(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 repair 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, heating and air conditioning systems,
dock boards, truck doors, dock bumpers, paving repairs, plumbing work and
fixtures, termite and pest extermination, regular removal of trash and debris,
keeping the parking areas, driveways, alleys and the whole of the Premises in
a clean and sanitary condition. Tenant shall not be obligated to repair any
damage caused by fire, tornado, or other casualty covered by the insurance to
be maintained by Landlord pursuant to subparagraph 13(A) below, except that
Tenant shall be obligated to repair all wind damage to glass except with
respect to tornado or hurricane damage.
B. Tenant shall not damage any demising wall or disturb the integrity
and support provided by any demising wall and shall, at its sole cost and
expense, promptly repair any damage or injury to any demising wall caused by
Tenant or its employees, agents, licensees or invitees.
C. Tenant and its employees, customers and licensees 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 Tenant's exclusive
parking rights against any third parties, although Landlord will make all
reasonable efforts to assist Tenant's parking situation. If Tenant or any
other particular tenant of the building can be clearly identified as being
responsible for obstructions or stoppage of a common sanitary sewage line,
then Tenant, if Tenant is responsible, or such other responsible Tenant, shall
pay the entire cost thereof, 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.
6. LANDLORD'S REPAIRS. After reasonable notice from Tenant, Landlord shall
repair the roof, exterior walls and foundations, and the cost thereof shall be
borne by the Landlord. 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 of defect or 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 to the cost of such repairs or
maintenance or the curing of such defect.
7. MONTHLY COMMON AREA MAINTENANCE CHARGE. Tenant agrees to pay as an
additional charge each month for its proportionate share of the cost of
operation and maintenance of the Common Area which shall be defined from time
to time by Landlord. Common Area costs which may be incurred by Landlord at
its reasonable discretion, shall include, but not 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, repair or replacement of downspouts and gutters, and
other like charges, and Landlord's fee for supervision and administration of
the items set forth in this paragraph, currently at 10%. Landlord shall
maintain the Common Areas in reasonably good condition and repair. The
proportionate share to be paid by Tenant of the cost of operation and
maintenance of the Common Area shall be computed on the ratio that the gross
leasable square feet of the Premises bears to the total applicable gross
leasable square footage or such other equitable apportionment as may be
adopted. 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 fiscal 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 rental as provided herein. The
amount of the initial monthly Common Area Maintenance Charge shall be as
specified in the Basic Lease Information. Operating expenses will not include
refinancing costs, management fees in excess of 3% of gross receipts,
administrative salaries above Building Manager, advertising, promotional
costs, and brokerage fees, repairs or improvements required to bring the
property in compliance with Federal, State, or Local Codes, Acts, Ordinances
in effect prior to Lease Commencement Date, income, franchise or inheritance
taxes, repairs of any latent defects, and/or the costs of any environmental
remediation not resulting from Tenant's operation at the Premises.
8. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises (including but not limited to roof and wall
penetrations) without the prior written consent of Landlord which shall not be
unreasonably withheld. 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, any or all alterations, additions, improvements and
partitions as elected by Landlord 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 primary structure or structural qualities of the buildings and
other improvements situated on the Premises.
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 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. Tenant and
sub-Tenant shall be allowed signage above their space similar to other tenants
within the park.
10. INSPECTION.
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, and only when accompanied by a representative of Tenant, 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. 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 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 repairs and restoration. It shall be the responsibility of
Tenant, prior to vacating the Premises, to clean and repair the Premises and
restore them to the condition in which they were in upon delivery of the
Premises to Tenant at the Commencement Date, reasonable wear and tear
excepted. Cleaning, repair and restoration shall include, but not be limited
to, removal of all trash, where necessary, cleaning of carpet and flooring,
replacement of light bulbs and tubes, cleaning and wiping down of all
fixtures, and all similar work, which shall be done at the latest practical
date prior to vacation of the Premises. Tenant shall be required to repair
all heating and air conditioning systems if they have not been kept up per the
Maintenance Contract.
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 in no event be liable for any
interruption or failure of utility services on the Premises.
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, to any other company, under this Lease without the prior written
consent of Landlord. In the event Tenant applies to Landlord for consent to
assign, convey, transfer or sublet the Premises, Landlord may condition such
consent upon 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. 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 giving its
consent by notice 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. In the event that Landlord shall not elect to recapture and shall
thereafter give its consent, Tenant shall pay Landlord a reasonable fee, not
to exceed $500.00, to reimburse Landlord for processing costs incurred in
connection with such consent. Tenant may sublet or assign space to any
subsidiary of Contour Medical or Sun Health without Landlord's written consent
which shall not be unreasonably withheld.
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 herein specified 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 hereunder.
13. INSURANCE, FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of which
the Premises are a part in an amount not less than one hundred percent (100%)
(or such greater percentage as may be necessary to comply with the provisions
of any co-insurance clauses of the policy) of the "replacement cost" thereof
as such term is defined in the Replacement Cost Endorsement to be attached
thereto, insuring against the perils of Fire, Lightning, Extended Coverage,
Vandalism and Malicious Mischief, extended by Special Extended Coverage
Endorsement to insure against all other Risks of Direct Physical Loss, such
coverages and endorsements to be as defined, provided and limited in the
standard bureau forms prescribed by the insurance regulatory authority for the
State in which the Premises are situated for use by insurance companies
admitted in such state for the writing of such insurance on risks located
within such state. Subject to the provisions of subparagraph 13, C, D, E
below, such insurance shall be for the sole benefit of Landlord and under its
sole control. In the event the insurance policy shall contain a deductible,
Tenant shall be liable for and pay its proportionate share of the deductible
withheld from insurance proceeds or payable under the terms of the insurance
policy in the event of a claim or insured loss thereunder. Tenant's
proportionate share is total square feet of Premises divided by total project
size of 205,000 square feet and will be capped at said share at $10,000.00.
B. Tenant agrees to pay its proportionate share of Landlord's cost of
carrying fire and extended coverage insurance ("Insurance") on the building.
During each month of the term of this Lease, Tenant shall make a monthly
escrow deposit with Landlord equal to one-twelfth of its proportionate share
of the Insurance on the buildings and grounds which will be due and payable
for that particular year. Tenant authorizes Landlord to use the funds
deposited by him 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
rental as provided herein. The initial share of the estimated Insurance for
the year in question, and the 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 pro
rata share of the Insurance, Tenant shall pay to Landlord upon demand the
difference; if the total Insurance Escrow Payments of Tenant are more than
Tenant's actual pro rata share of the Insurance, Landlord shall promptly
refund the balance of such excess to Tenant after first crediting the excess
to the next monthly payment by Tenant for its proportionate share of Taxes and
Insurance unless the Lease is expired, in which case such overages shall be
returned immediately 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. 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.
D. 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 reasonable estimation
be completed within one hundred and twenty (120) days after the date upon
which Landlord is notified by Tenant of such damage, this Lease shall
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 thirty (30) days following the date of the occurrence of such
damage.
E. If the building, of which the Premises are a part, should be damaged
by any peril covered by the Insurance to be provided by Landlord under
subparagraph 13(A) above, but only to such extent that rebuilding or repairs
can in Landlord's estimation be completed within one hundred and twenty (120)
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 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 as may be fair and reasonable under all of the
circumstances. In the event that Landlord shall fail to complete such repairs
and rebuilding within one hundred and twenty (120) days after the date upon
which Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this Lease by delivering written notice of termination to Landlord
as Tenant's exclusive remedy, whereupon all rights and obligations hereunder
shall cease and terminate.
G. 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 thereunder 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 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 negligence
or misconduct of Tenant its employees, agents, servants, guests, invitees 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 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, and visitors from any loss liability, claims, suits, costs,
expenses, including without limitation attorney's fees and damages, both real
and alleged, arising out of any such damage or injury; except injury to
persons or damage to property the sole cause of which is the negligence of
Landlord or the failure of Landlord to repair any part of the Premises which
Landlord is obligated to repair and maintain hereunder within a reasonable
time after the receipt of written notice from Tenant of needed repairs.
Tenant shall procure and maintain throughout the term of this Lease a policy
or policies of Insurance, at its sole cost and expense, insuring both Landlord
and Tenant against all claims, demands or actions arising out of or in
connection with: (i) the Premises; (ii) the condition of the Premises; (iii)
Tenant's operations in and maintenance and use of the Premises; and (iv)
Tenant's liability assumed under this Lease, the limits of such policy or
policies to be in the amount of not less than $1,000,000 per occurrence in
respect of injury to persons (including death) and in respect of property
damage or destruction, including loss of use thereof. All such policies shall
be procured by Tenant from responsible Insurance companies satisfactory to
Landlord. 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. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be canceled or changed to reduce insurance provided thereby.
15. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken
for any public or quasi-public use under government 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, 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 the subparagraph above, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all
of the circumstances.
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 in any condemnation proceedings which does not reduce
the amount of Landlord's award, for the value of any furniture, furnishing and
fixtures installed by and at the sole expense of Tenant.
16. HOLDING OVER. Tenant will, at the termination of this Lease by lapse of
time or otherwise, yield up immediately 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 thirty (30)
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 Base
Rent in effect on the termination date, or such lesser rental as Landlord and
Tenant may agree upon if the hold over will not cause a delay in another
tenant moving into the space, 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. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the Premises, good fee or leasehold title to
the Premises, free and clear of all liens and encumbrances, excepting only the
lien for current taxes not yet due, such mortgage or mortgages as are
permitted by the terms of this Lease, zoning ordinances and other building and
fire ordinances and government regulations relating to the use of such
property, and easements, restrictions and other conditions or record. In the
event this Lease is a sublease, then Tenant agrees to take the Premises
subject to the provisions of the prior leases. Landlord represents and
warrants that it has full right and authority to enter into this Lease and
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 or
molestation 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 ten (10) days after receiving such
written notice from Landlord.
B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of
the United States or any State thereof; or Tenant shall be adjudged bankrupt
or insolvent in proceedings filed against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant.
E. Tenant shall desert or vacate any substantial portion of the Premises
and Tenant fails to make any rental payments.
F. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph 18), and shall not cure
such failure within thirty (30) days after written notice thereof 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 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 agrees to 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.
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
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 reasonable 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. Landlord shall have no obligation
to relet the Premises or any part thereof 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) incurred by Landlord, plus interest thereon from the date of
expenditure until fully repaid at the rate of eighteen percent (18%) per
annum.
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; and the failure to pay such amount
within ten (10) days after written demand therefore shall be an event of
default hereunder. 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.
G. 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 non-exclusive, 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 and covenants herein contained. No
act or thing done by the Landlord or its agents during the Lease Term hereby
granted 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 said 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 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. If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any reasonable attorney's fees so incurred.
20. 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, including without limitation the right to sell the property
described in this Paragraph 20 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.
21. 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 mortgages, 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.
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. In
the event Landlord obtains a new mortgage on the property, Landlord shall
obtain and deliver to Tenant a Non-Disturbance Agreement from the holder of
such mortgage affecting the real estate in a form reasonably acceptable to
Tenant.
22. LANDLORD'S DEFAULT. In the event Landlord should become in default in
any payment due on any such mortgage described in Paragraph 21 hereof or in
the payment of taxes or any other item which might become a lien upon the
Premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease. Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant or
deducted by Tenant from next rent payment due, provided however, that Tenant
shall not be authorized and empowered to make any payment under the terms of
this Paragraph 22 unless the item paid shall be superior to Tenant's interest
hereunder. In the event Tenant pays any mortgage debt in full, in accordance
with this paragraph, it shall, at its election, be entitled to the mortgage
security by assignment or subrogation.
23. MECHANIC'S 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 interest of Landlord in 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, and each such claim shall affect and
each such lien shall attach to, if at all, only the leasehold interest granted
to Tenant by this instrument. 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 save and hold Landlord harmless from any and all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in
the Premises or under the terms of this Lease.
24. 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 hereinbelow 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 hereinbelow 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.
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, overnight carrier,
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:
Spieker Properties, L.P. Contour Medical
P.O. Box 5909 6025 Shiloh Road
Portland, OR 97228-5909 Alpharetta, GA 30005
Telephone: 503-221-5700 Telephone:
Facsimile: 503-221-8627 Facsimile:
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 some 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 some 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.
25. HAZARDOUS MATERIALS. Tenant hereby covenants and agrees not to cause or
permit the presence, use, generation, release, discharge, storage, disposal,
or transportation of any Hazardous Materials (as defined below) on, under, in,
above, to, or from the Premises, the Common Areas or any portion of the Park
other than in strict compliance with all applicable federal, state, and local
laws, regulations, and orders. For the purposes of this Lease the term
"Hazardous Materials" shall refer to any substances, materials, and wastes
that are or become regulated as hazardous or toxic substances under any
applicable local, state, or federal law, regulation, or order if Tenant is
conclusively proven to have caused such contamination under this provision.
Tenant shall indemnify, defend, and hold Landlord harmless from and against
(a) any loss, cost, expense, claim, or liability arising out of any
investigation, monitoring, clean-up, containment, removal, storage, or
restoration work ("Remedial Work") required by, or incurred by Landlord or any
non-governmental entity or person in a reasonable belief that such work is
required by, any applicable federal, state, or local law, governmental agency,
or political subdivision, and (b) any claims of third parties for loss,
injury, expense, or damage arising out of the presence, release, or discharge
of any Hazardous Material on, under, in, above, to, or from the Premises
during the term of this Lease, occurring as a result of Tenant's operations on
the Premises. In the event any Remedial Work is so required under any
applicable federal, state, or local law during the term of this Lease, Tenant
shall perform or cause to be performed the Remedial Work in compliance with
such law, regulation, or order. All Remedial Work shall be performed by one
or more contractors under the supervision of a consulting engineer, each
selected by Tenant and approved in advance in writing by Landlord. In the
event Tenant shall fail to commence the Remedial Work in timely fashion or
fail to prosecute diligently the Remedial Work to completion, Landlord may,
but shall not be required to, cause the Remedial Work to be performed, subject
fully to the indemnification provisions of this paragraph. The foregoing
indemnification obligation shall survive termination of this Lease.
Remediation or compliance for any contamination occurring prior to the
Commencement Date of this Lease shall be the responsibility of the Landlord.
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. 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.
C. 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.
D. 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 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. 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.
E. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All 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 25(F).
G. 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.
H. 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.
I. 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.
27. LIABILITY OF LANDLORD. Tenant agrees that no trustee, officer,
employee, agent or individual partner of Landlord, or its constituent
entities, shall be personally liable for any obligation of Landlord hereunder,
and that Tenant must look solely to the interests of Landlord, or its
constituent entities in the subject real estate, for the enforcement of any
claims against Landlord arising hereunder.
28. DISCLOSURE. The managing partners of Landlord and other related parties
are licensed real estate brokers or salespersons. This disclosure is made
pursuant to OAR 863-10-046.
29. TENANT IMPROVEMENTS. After Tenant's approval of bids, Landlord will,
at its cost and expense, demise and build out the Premises according to the
construction drawings and specifications which shall be attached to and made
part of this Lease Agreement. Landlord shall contribute $125,000.00 towards
tenant improvements of the Premises. In addition to this amount, Landlord
shall also construct one (1) Kelley Model EOD-66 edge of dock leveler at one
(1) dock high door, an eye wash station and battery charge station in the
warehouse area, and seal the warehouse floor. Landlord warrants that all
heating, ventilation, air conditioning, electrical, plumbing, structural,
mechanical, and fire sprinklers are in good working order and in compliance
with all applicable codes and ordinances in effect at the time of the
commencement of this Lease.
30. RENEWAL OPTION. While this Lease is in full force and effect, provided
Tenant is not in material default of any of the terms, covenants, and
conditions thereof, Tenant shall have the option to extend the original term
of this Lease for an additional five (5) years. Such extension of the
original term shall be under the same terms and conditions as provided for in
the original Lease except for this paragraph and except that the rent during
the Extension Term shall be at then fair market value in effect for comparable
facilities in the Rivergate industrial market of Portland, Oregon. Notice of
the Tenant's intention to exercise the option must be given to Landlord, in
writing, at least one hundred eighty days prior to the expiration date of the
original term of this Lease. After notification from Tenant, Landlord will
have fifteen (15) days with which to present their proposed rental rate for
the renewal term. After receipt of this, Tenant shall have fifteen (15) days
to respond to the proposed rate. If Landlord and Tenant cannot agree within
fifteen (15) days following Landlord's receipt of Tenant's response, Tenant
shall, within fifteen (15) days thereafter, either rescind its notice of
exercise of the extension option in writing, or, if no such recission is given
by Tenant to Landlord, rent shall be determined as follows: Landlord and
Tenant shall each select, at their own cost and expense, as an Arbitrator, an
independent, certified MAI Appraiser familiar with commercial rental rates in
the Portland metropolitan area. The two Arbitrators so chosen shall each use
their good faith and judgment to agree upon a fair market rental for the
Premises during the renewal period. If they are unable to agree within thirty
(30) days after their appointment, then a third Arbitrator, having similar
qualifications, shall be chosen by the first two Arbitrators. The third
Arbitrator shall then select from the fair market rental values submitted by
the other two Arbitrators, the value of which the third Arbitrator deems to
more closely represent the fair market rental value. The fair market rental
value selected by the third Arbitrator shall be the rent for the ensuing five
year term. In no event will the rental rate for any Extension Term be less
than the rent for the previous term.
31. TERMINATION OPTION. Landlord shall allow the Tenant the right to
terminate this Lease at the end of the forty-eighth (48th) month of the Lease
Term. Landlord will require one hundred and twenty (120) days prior written
notice from the Tenant to exercise this option and a termination fee equal to
any unamortized brokerage fees, tenant improvements, and unamortized specialty
improvements to the Premises.
32. BROKER. Both parties acknowledge that Mohr Partners and West Coast
Investment Realty represent the Tenant solely and shall be compensated by the
Landlord solely, as per separate agreement.
33. PARKING. Tenant will be allowed forty (40) parking space.
34. DELAYS IN COMMENCEMENT. Except for Tenant caused delays, for each day
past the Commencement Date the construction is not substantially complete,
Landlord shall credit Tenant's rent 1/30th of the monthly rent. Substantial
completion shall be defined as (i) issuance of a Certificate of Occupancy for
the Premises, (ii) certification of substantial completion from Landlord's
Architect, and (iii) condition of the Premises must be otherwise ready for
Tenant to occupy and conduct its usual business. Tenant shall prepare
punchlists for submittal to Landlord within a short time after occupancy.
Landlord shall then have thirty (3) days to complete or repair punchlist
items. Such completions and/or repairs shall occur during non-business hours,
except to the extent that completion does not unreasonably interfere with
Tenant's conduct of its usual business within the Premises.
LANDLORD: TENANT:
Spieker Properties, L.P. Contour Medical, Inc.
a California limited partnership a Nevada corporation
By: Spieker Properties, Inc.
a Maryland corporation
Its: General Partner
By: /s/ John B. Souther, Jr. By: /s/ Donald F. Fox
John B. Souther, Jr.
Senior Vice President
Date: 7/18/97 Date: 7/17/97