SUBLEASE AGREEMENT
The parties to this Sublease Agreement dated April 1, 1998 are Jenkon
International, Inc. hereinafter referred to as Sublessee and S & P Company,
hereinafter referred to as Sublessor
RECITALS.
The Premises are presently being leased by S&P Company ("S&P") pursuant to
the following: On March 15, 1994 S&P, as tenant, entered into a Lease with
Dan J. Agnew, an Individual, as Landlord. On December 31, 1995, Dan J. Agnew
as representative of the Estate of Sam J. Agnew, assigned, transferred, and
conveyed all of its rights, title, and interests in the leases pertaining to
the Building including, but not limited to, the above referenced lease to
ALCO Limited Partnership, an Oregon limited partnership. On March 1, 1997
ALCO Limited Partnership, an Oregon limited partnership, assigned,
transferred, and conveyed all of its rights, title, and interests in the
leases pertaining to the Building including, but not limited to, the above
referenced lease to ALCO Holdings L.L.C., an Oregon limited liability
company, hereinafter referred to as Lessor.
ALCO Holdings L.L.C., an Oregon limited liability company ("ALCO") is the
Lessor and owner of the premises located at 7600 NE 41st Street, Suite 300,
Vancouver, WA 98662, situated in Clark County and consisting of approximately
10,239 gross rentable square feet of office improved area. The real estate,
building, common areas and improvements are commonly known as One Park Place
at the Park Place Corporate Center, Vancouver, WA 98662 ("the Premises"). The
Premises are shown on Exhibit A attached hereto and incorporated herein by
this reference.
The Lease dated March 15, 1994 by and between S & P Company and ALCO
(collectively the Lease) is attached hereto as Exhibit B.
Whereas S&P Company ("Sublessor") wishes to sublease the Premises to Jenkon
International, Inc. ("Sublessee"). In order to sublease on acceptable terms
and conditions, Sublessor and Sublessee need ALCO's ("Lessor") consent to
sublease. Lessor is willing to grant such consent, subject to the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
SECTION 1. Sublessor hereby subleases the Premises to Sublessee,
AGREEMENT and Sublessee hereby subleases the Premises from
TO SUBLEASE Sublessor (the "Sublease"). The term of the Sublease
shall be for 22 months commencing May 15, 1998 and
expiring on March 14, 2000.
SECTION 2. Sublessee shall pay Sublessor as base sublease rent
RENT the sum of Fifteen Thousand Seven Hundred Eighty
Five and 00/100 dollars ($15,785) per month for 22
months commencing May 15, 1998 and expiring March 14,
2000. Rent for the first month of the Sublease term
shall be pro-rated and due upon Sublease execution.
Rent shall be payable in advance on the first day of
each subsequent month during the Sublease term. No
deductions or pro-rates to rent shall be made without
first obtaining Sublessor and Lessor approval.
Possession of Premises shall be effective May 1,
1998. Sublessor shall pay as additional rent its
proportionate share of the amount by which operating
expenses for the Building exceed $6.24 per square
foot of gross leasable area. This amount shall be
called the "Expense Stop". Effective January 1 of
each year Lessor shall estimate the amount by which
operating expenses are expected to increase, if any,
over those incurred in the base year. Monthly rental
for that year shall be increased by one-twelfth of
Sublessor's share of the estimated increase.
Following the end of each calendar year, Lessor
shall compute the actual increase in operating
expenses and bill Sublessor for any deficiency or
credit Sublessor with any excess collected. As used
herein, "operating expenses" shall mean all costs of
operating and maintaining the Building as determined
by standard real estate accounting practice,
including, but not limited to: all property taxes,
all water and sewer charges; the cost of natural gas
and electricity provided to the building; janitorial
and
- --------------------------------------------------------------------------------
Page 1 of 5 A107
[ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
------------- ------------- -------------
Sublessor Sublessee Lessor
cleaning supplies and services; administration costs
and management fees; superintendent fees; security
services, if any; insurance premiums; licenses;
permits for the operation and maintenance of the
Building and all of its component elements and
mechanical systems; the annual amortized capital
improvement cost (amortized over such a period as
Lessor may select but not shorter than the period
allowed under the Internal Revenue Code and at a
current market interest rate) for any capital
improvements to the Building required by any
governmental authority or those which have a
reasonable probability of improving the operating
efficiency of the Building. Sublessee agrees to all
terms and conditions of the Lease and shall
faithfully perform all covenants therein, including
but not limited to, payment of all pro-rata (see
paragraph 19.1 of the Lease) additional
rent-operating expense adjustments, as defined in
paragraph 19.2, "Additional Rent-Operating Expense
Adjustment", of the Lease and as adjusted in Section
2 of this Sublease. This Sublease shall not relieve,
dismiss, discharge, absolve or release Sublessor
from any terms and conditions of the Lease.
SECTION 3. Sublessee may use the Premises for General Office
USE OF PREMISES use as it relates to Sublessee's business. Sublessee
shall not use the Premises in any manner which would
constitute a violation of the Lease.
SECTION 4. Sublessee accepts the leased Premises in an "as is"
CONDITION OF PREMISES condition, provided the space is delivered in a
broom swept condition.
SECTION 5. Sublessee at its own expense and with prior written
IMPROVEMENTS Lessor and Sublessor consent, whose consent shall
not be unreasonably withheld, may perform tenant
improvements to the Premises, provided all materials
used conform to Building Standard Tenant Improvements.
SECTION 6. Sublessor warrants that Sublessor will pay to the
SUBLESSOR'S Lessor on the Lease, as and when due, all rents
REPRESENTATIONS required to be paid by the terms of the Lease and
that Sublessor will not otherwise do any act which
would cause the Lease to become in default.
SECTION 7. Sublessee acknowledges the existence of the Lease
SUBLESSEE'S and agrees to take the leased Premises subject to
REPRESENTATIONS all the terms and conditions of the Lease, to use
the Premises within the restrictions provided by the
Lease and this Sublease, and to perform any and all
obligations required to be performed by Sublessor as
Lessee under the Lease, except for the payment of
rentals due thereunder which Sublessor shall
continue to pay to Lessor. Sublessee agrees to
protect, defend and hold Sublessor harmless from and
against any loss or claim arising out of or
attributable to Sublessee's use of the Premises or
Sublessee's breach of any provision of the Lease,
the performance or observance of which is
Sublessee's responsibility. Sublessee warrants that
it is authorized to enter into this Sublease.
SECTION 8. Sublessee will provide Sublessor with a certificate
INSURANCE PRIOR TO of insurance evidencing commercial liability coverage
COMMENCEMENT OF THE of One Million dollars and naming Lessor and
SUBLEASE TERM Sublessor as additional insureds.
SECTION 9. As between Sublessor and Sublessee, and unless this
MUTUAL RIGHTS provision conflicts with an express provision of
AND OBLIGATIONS this Sublease, Sublessor shall be deemed to have all
of the rights and obligation of the Lessor under the
Lease, and Sublessee shall be deemed to have all of
the rights and obligations of the Lessee under the
Lease, except that Sublessee may not renew this
Sublease beyond March 14, 2000 unless otherwise
permitted by Sublessor and Lessor in writing.
SECTION 10. Any addendum attached hereto and either signed or
ADDENDUM initialed by the parties shall be deemed a part of
this Sublease.
- --------------------------------------------------------------------------------
Page 2 of 5 A107
[ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
------------- ------------- -------------
Sublessor Sublessee Lessor
SECTION 11. Lessor and Sublessor shall not be required to
DUTIES OF LESSOR make any alterations, additions, improvements
AND SUBLESSOR to or on the Premises during the Term of this
Sublease, except as may be outlined in the
Lease.
SECTION 12. Sublessee shall maintain in good condition the
DUTIES OF premises, save normal wear and tear.
SUBLESSEE
SECTION 13. Time is of the essence of each obligation of
TIME OF THE ESSENCE Sublessee and Sublessor and Lessor under this
Sublease.
SECTION 14. If litigation is instituted in respect to this
ATTORNEY FEES Sublease, the prevailing party shall be
entitled to recover from the non-prevailing
party its reasonable attorneys' fees and court
costs, both at trial and upon appeal.
SECTION 15. Sublessee shall promptly yield and deliver to
SURRENDER OF Sublessor possession of the Premises upon
POSSESSION expiration of the Sublease in the same
condition as when subleased save normal wear
and tear, or as may be amended in accordance
with Section 20 "Alterations." Any furniture,
fixtures, equipment or improvements of
Sublessee not removed from the Premises upon
such expiration of the Term or earlier
termination of the Sublease, whether Sublessor
or Lessor has requested the removal of the same
pursuant to this Sublease or the Lease or not,
may be removed by Sublessor or Lessor and
stored or disposed of in Sublessor or Lessor's
sole discretion, and Sublessee shall reimburse
Sublessor or Lessor for all costs of such
removal, storage and/or disposal within ten
(10) days following Sublessee's receipt from
Sublessor or Lessor of notice of such costs.
Sublessee's obligation pursuant to the
foregoing sentence shall survive the expiration
of the Term or earlier termination of this
Sublease.
SECTION 16. Any holding over by Sublessee after the
HOLDING OVER expiration of the Term or earlier termination
of the Sublease shall be construed to be a
tenancy at sufferance on all of the terms and
conditions set forth herein to the extent not
inconsistent with a tenancy at sufferance;
provided, that the minimum Rent for such
hold-over period shall be an amount equal to
the last monthly rent received during the
Sublease Term (subject to adjustment as
provided herein and prorated on a daily basis
based on a thirty (30) day month). Acceptance
by Sublessor or Lessor of rent or any other sum
payable hereunder after such expiration or
earlier termination shall not result in an
extension or renewal of this Sublease. If
Sublessee fails to surrender the Premises upon
the expiration of the Term or earlier
termination of this Sublease, Sublessee shall
indemnify, defend and hold harmless Sublessor
from all loss, damage, cost, liability or
expense (including, without limitation,
attorneys' fees and expenses) resulting from,
relating to or founded upon such failure to
surrender the Premises, including, without
limitation, any claim made by any succeeding
tenant.
SECTION 17 It is hereby understood that Wicklund &
AGENCY DISCLOSURE. Associates Commercial Brokerage Company,
represents both parties to this transaction and
both parties hereby acknowledge and agree to
same
SECTION 18 Sublessee represents and warrants to Sublessor
NO BROKERS. that it has not engaged any broker, finder or
other person who would be entitled to any
commission or fees in respect of the
negotiation, execution or delivery of this
Sublease and shall indemnify and hold harmless
Sublessor against any loss, cost, liability or
expense incurred by Sublessor as a result of
any claim
- -------------------------------------------------------------------------------
Page 3 of 5 A107
[ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
--------- --------- ---------
Sublessor Sublessee Lessor
asserted by any such broker, finder or other
person on the basis of any arrangements or
agreements made or alleged to have been made by
or on behalf of Sublessee. The provisions of
this Section shall not apply to brokers with
whom Sublessor has an express written brokerage
agreement.
SECTION 19. All notices or tenders required or permitted
NOTICES hereunder shall be made and given in writing to
the parties at the addresses set forth
hereinbelow by either facsimile (with hard copy
sent via regular U.S. Mail postage prepaid),
certified mail return receipt requested or
overnight courier such as Federal Express. If
notice be given by facsimile or overnight
courier it shall be deemed received on the next
business day following mailing and if by
certified mail, it shall be deemed received on
the third business day following mailing.
Notice to Sublessee may always be delivered to
the Premises. Rent shall be payable to
Sublessor at the address seen below, but shall
be considered paid only when received. Either
party may change its address for notice
purposes by giving written notice of such
change in accordance with the provisions of
this paragraph. Notices shall be addressed as
follows:
SUBLESSEE: SUBLESSOR:
Mr. Bernard Orsi, Mr. Steve McKeag
Vice President Chief Financial Officer
100 Shoreline Highway, Jenkon International, Inc.
Building B 7600 NE 41st Street,
Suite 395 Suite 350
Mill Valley, CA 94945 Vancouver, WA 98662
SECTION 20: Sublessee shall not perform any alterations to
SUBLESSOR'S ALTERATIONS Premises without first obtaining Lessor's and
prior written consent and whose consent shall
not be unreasonably withheld.
SECTION 21. The premises is a smoke free environment.
SMOKING Sublessee shall prohibit its employees, agents,
assigns, and invitees from smoking in the
premises. This shall include, but not be
limited to, cigarette, cigar and pipe smoking.
SECTION 22: All rent shall be paid by Sublessee to
RENT WITHOUT OFFSET Sublessor monthly in advance on the first day
LATE CHARGE of every calendar month, at the address shown
below, or such other place as Sublessor may
designate in writing from time to time. All
rent shall be paid without prior demand or
notice and without any deduction or offset
whatsoever. All rent shall be paid in lawful
currency of the United States of America.
Proration of rent due for any partial month
shall be calculated by dividing the number of
days in the month for which rent is due by the
actual number of days in that month and
multiplying by the applicable monthly rate.
Sublessee acknowledges that late payment by
Sublessee to Sublessor of any rent or other
sums due under the Sublease will cause
Sublessor to incur costs not contemplated by
this Sublease, the exact amount of such cost
being extremely difficult and impractical to
ascertain. Such costs include, without
limitation, processing and accounting charges
and late charges that may be imposed on
Sublessor by the terms of any encumbrance or
note secured by the Premises. Therefore, if any
rent or other sum due from Sublessee is not
received when due, Sublessee shall pay to
Sublessor an additional sum equal to 10% of
such overdue payment. Sublessor and Sublessee
hereby agree that such late charge represents a
fair and reasonable estimate of the costs that
Sublessor will incur by reason of any such late
payment and that the late charge is in addition
to any and all remedies available to the
Sublessor and that the assessment and/or
collection of the late charge shall not be
deemed a waiver of any other default.
Additional, all such delinquent rent or other
sums, plus this late charge, shall bear
interest at the rate of 18 percent per annum.
Any payments of any kind returned for
insufficient funds will be subject to an
additional handling charge of $25.00,
- -------------------------------------------------------------------------------
Page 4 of 5 A107
[ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
--------- --------- ---------
Sublessor Sublessee Lessor
and thereafter. Sublessor may require Sublessee
to pay all future payments of rent or other
sums due by money order or cashier's check.
SECTION 23 Upon request of Lessor or Sublessor, Sublessee
FINANCIAL STATEMENTS. shall provide a copy of its most recent annual
report to shareholders as evidence of its
financial qualifications to duly perform under
this Sublease.
IN WITNESS WHEREOF, the undersigned have caused this agreement to be executed.
Sublessor: By: /s/ [ILLEGIBLE] By:
S&P Company --------------------- -----------------------
Title: [ILLEGIBLE] Title:
------------------ ---------------------
Date: 4/2/98 Date:
------------------- ---------------------
Telephone No. (415)
Fax No. (415) 332-0567
Address:
100 Shoreline Hwy., Bldg. B, Suite 395
Mill Valley, CA 94945
Sublessee: By: /s/ [ILLEGIBLE] By:
Jenkon International Inc. --------------------- ------------------
Title: President Title:
------------------ ---------------
Date: 4/15/98 Date:
------------------- ----------------
Telephone No. (360) 256-4400
Fax No. (360) 256-9623
Address:
7600 NE 41st Street, Suite 350
Vancouver, WA 98662
Lessor: ALCO Holdings L.L.C. By: [ILLEGIBLE] By:
an Oregon limited liability company ---------------- ----------------
Date: 4/18/98 Date:
-------------- --------------
Telephone No. (503) 274-9990
Address: 3601 NW Yeon Avenue
Portland, OR 97210
SUBLESSOR, SUBLESSEE AND LESSOR HAVE CAREFULLY READ AND REVIEWED THIS
SUBLEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION
OF THIS SUBLEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE
SUBLESSOR AND SUBLESSEE HEREBY AGREE THAT, AT THE TIME THIS SUBLEASE IS
EXECUTED, THE TERMS OF THIS SUBLEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF SUBLESSOR AND SUBLESSEE WITH RESPECT TO
THE PREMISES.
- -------------------------------------------------------------------------------
Page 5 of 5 A107
[ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
--------- --------- ---------
Sublessor Sublessee Lessor
ADDENDUM TO SUBLEASE
Dated April 1, 1998
By and Between
S&P Company Sublessor
And
Jenkon International, Inc., Sublessee
RECITALS:
In reference to the master lease (see Exhibit B of the Sublease) by and
between Dan J. Agnew, Landlord and S&P Company, Tenant dated March 15,
1994, two clauses found therein, 13.1 "Regulations" and 14.3 "Parking"
respectively, become null and void as a result of this Sublease. Any salvage
costs associated with the removal of the installed "Smoke-eater" shall
belong to Jenkon International.
The Landlord reserves the right to convert the former S&P Company reserved
parking stalls to either customer/visitor parking or to unassigned parking
for the benefit of all tenants in the Building.
13.1 REGULATIONS Intentionally deleted.
14.3 PARKING Intentionally deleted.
- -------------------------------------------------------------------------------
Page 6 of 6 A107
[ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
--------- --------- ---------
Sublessor Sublessee Lessor
EXHIBIT B
OFFICIAL LEASE
This lease, made and entered into at Vancouver, Washington, this
15th day of March, 1994, by and between Dan J. Agnew, an individual,
as Landlord, and S & P Company, as Tenant.
Landlord hereby leases to Tenant the following: Approximately
10,239 rentable square feet of office space (9,325 usable square feet
x 1.12% building load factor to compensate for the common area shared
by all tenants) located on the 3rd floor of premises, see Exhibit A,
Space Plans, attached hereto and by this reference made a part of the
office lease, to be known as Suite #300 (the Premises) in the ONE
PARK PLACE building (the building) at 7600 NE 41st Street, Vancouver,
Clark County, Washington 98662, for a term of six (6) years,
commencing, March 15, 1994 and continuing through March 14, 2000; at
a Base Rental of $12,798.75 (U.S.) per month payable in advance on
the 1ST day of each month commencing March 15, 1994.
Landlord and Tenant covenant and agree as follows:
1.1 DELIVERY OF Tenant is in possession of the premises. Tenant
POSSESSION accepts the premises "AS IS" and agrees that Landlord
is not responsible for providing any Tenant Improvements
whatsoever.
2.1 RENT PAYMENT Tenant shall pay the Base Rent for the Premises
and any additional rent provided herein without
deduction or offset. Rent for any partial month during
the lease term shall be prorated to reflect the number
of days during the month that Tenant occupies the
Premises. Additional rent means amounts determined
under paragraphs 19.1 and 19.2 of this Lease and any
other sums payable by Tenant to Landlord under this
Lease. Rent not paid when due shall bear interest at the
rate of one-and-one-half percent per month until paid.
Landlord may at its option impose a late charge of
$.05 for each $1 of rent for rent payments made more
than 10 days late in lieu of interest for the first
month of delinquency, without waiving any other
remedies available for default. Base rental shall not
be increased during the term of this lease.
3.1 LEASE Upon execution of the lease Tenant has paid the
CONSIDERATION Base Rent for the first full month of the lease term
for which rent is payable and in addition has paid the
sum of $12,798.75 as lease consideration. Landlord may
apply the lease consideration to pay the cost of
performing any obligation which Tenant fails to
perform within the time required by this lease, but
such application by Landlord shall not be the
exclusive remedy for Tenant's default. If the lease
consideration is applied by Landlord, Tenant shall on
demand pay the sum necessary to replenish the lease
consideration to its original amount. To the extent not
applied by Landlord to cure defaults by Tenant, the lease
consideration shall be applied against the rent
payable for the last month of the term. The lease
consideration shall not be refundable.
4.1 USE Tenant shall use the Premises as business offices
for GENERAL OFFICE USE and for no other purpose
without Landlord's written consent. In connection with
its use, Tenant shall at its expense promptly comply
with all applicable laws, ordinances, rules and
regulations of any public authority and shall not
annoy, obstruct, or interfere with the rights of other
tenants of the Building. Tenant shall create no
nuisance nor allow any objectionable fumes, noise, or
vibrations to be emitted from the Premises. Tenant
shall not conduct any activities that will increase
Landlord's insurance rates for any portion of the
Building or that will in any manner degrade or damage
the reputation of the Building.
4.2 EQUIPMENT Tenant shall install in the Premises only such
office equipment as customary for general office use
and shall not overload the floors or electrical
circuits of the Premises or Building or alter the
plumbing or wiring of the Premises or Building. Any
additional air conditioning required because of heat
generating equipment or special lighting installed by
Tenant shall be installed and operated at Tenant's
expense.
4.3 SIGNS No sign, awnings, antennas, or other apparatus
shall be painted on or attached to the Building or
anything placed on any glass or woodwork of the
Premises or positioned so as to be visible from
outside the Premises without Landlord's written
approval as to design, size, location, and color. All
signs installed by Tenant shall comply with Landlord's
standards for signs and all applicable codes and all
signs and sign hardware shall be removed upon
termination of this lease with the sign location
restored to its former state unless Landlord elects to
retain all or any portion thereof.
5.1 UTILITIES AND Landlord will furnish heat, electricity, elevator
SERVICES service, and if the Premises are air conditioned, air
conditioning during the normal Building hours of 8:00
AM to 6:00 PM, Monday through Friday, except holidays
and 8:00 AM to 12:00 noon Saturdays, except holidays.
Janitorial service will be provided in accordance with
the regular schedule of the Building, which schedule
and service may change from time to time. Tenant shall
comply with all government laws or regulations
regarding the use or reduction of use of utilities on
the Premises. Interruption of the services or
utilities shall not be deemed an eviction or
disturbance of Tenant's use and possession of the
Premises, render Landlord liable to Tenant for
damages, or relieve Tenant from performance of
Tenant's obligations under this lease, but Landlord
shall take all reasonable steps to correct any
interruptions in service. Electrical service furnished
will be 110 volts unless different service already
exists in the Premises.
5.2 EXTRA USAGE If Tenant uses excessive amounts of utilities or
services of any kind because of operation outside of
normal Building hours, high demands from office
machinery and equipment, nonstandard lighting, or any
other cause, Landlord may impose a reasonable charge
for supplying such extra utilities or services, which
charge shall be payable monthly by Tenant in
conjunction with rent payments. In case of dispute
over any extra charge under this paragraph, Landlord
shall designate a qualified independent engineer whose
decision shall be conclusive on both parties. Landlord
and Tenant shall each pay one-half of the cost of such
determination.
5.3 CONFERENCE Tenant shall have the FREE use of the 591 square
ROOM foot conference room. Landlord reserves the right to
schedule Tenant usage in order to avoid conflicts.
6.1 MAINTENANCE Landlord shall have no liability for failure to
AND REPAIR perform required maintenance and repair unless written
notice of the needed maintenance or repair is given by
Tenant and Landlord fails to commence efforts to
remedy the problem in a reasonable time and manner. If
Landlord fails to commence efforts to remedy the
problem in a reasonable time and manner or thereafter
fails to diligently pursue efforts to remedy the
problem, and if the maintenance or repair problem
prevents Tenant from substantially conducting its
business in the usual manner at the Premises, then
Tenant shall have the option to terminate this Lease
upon written notice to Landlord; Tenant's termination
option shall be its exclusive remedy for Landlord's
non-performance under this paragraph. In performing
maintenance or repairs Landlord shall have the right
to erect scaffolding and other apparatus necessary for
such maintenance or repairs. Notwithstanding the
foregoing, repair of damage caused by negligent or
intentional acts or breach of this lease by Tenant,
its employees or invitees, shall be at Tenant's
expense.
6.2 ALTERATIONS Tenant shall not make any alterations, additions,
or improvements to the Premises, change the color of
the interior, or install any wall or floor covering
without Landlords's prior written consent. Any such
additions, alterations, or improvements, except for
removable machinery and unattached movable trade
fixtures, shall at once become a part of the realty
and belong to Landlord. Landlord shall have the right
to approve the contractor used by Tenant for any work
in the Premises, and to post notices of
nonresponsibility in connection with any work being
performed by Tenant in the Premises.
7.1 INDEMNITY Tenant shall not allow any liens to attach to the
Building or Tenants' interest in the Premises as a
result of its activities. Each party shall indemnify
and defend the other party from any claim, liability,
damage, or loss occurring on the Premises, arising out
of any activity by the party, its agents, or invitees
or resulting from said party's failure to comply with
any term of this lease. Landlord shall have no
liability to Tenant because of loss or damage caused
by the acts or omissions of other Tenants of the
Building.
7.2 INSURANCE Both parties shall carry liability insurance
with the following limits: $1,000,000 CSL, which
insurance shall have an endorsement naming the other
party as an insured and covering the liability insured
under paragraph 7.1 of this lease. Each party shall
furnish a certificate evidencing such insurance which
shall state that the coverage shall not be canceled or
materially changed without 10 days advance notice to
the other party, and a renewal certificate shall be
furnished at least 10 days prior to expiration of any
policy. Landlord shall provide all risk insurance
coverage for the building, including Tenant
improvements and Tenant shall provide insurance
coverage for its personal property, furnishing and
fixtures.
8.1 FIRE OR "Major Damage" means damage by fire or other casualty
CASUALTY to the Building or the Premises which causes the Premises
or any substantial portion of the Building to be unusable,
or which will cost more that 25 percent of the pre-damage
value of the Building to repair, or which is not covered by
insurance. In case of Major Damage, Landlord may elect to
terminate this lease by notice in writing to Tenant within
30 days after such date. If this lease is not terminated
following Major Damage, or if damage occurs which is not
Major Damage, Landlord shall promptly restore the Premises
and Tenant improvements to the condition existing just prior
to the damage. Rent shall be reduced from the date of damage
until the date restoration work being performed by Landlord
is substantially complete, with the reduction to be in
proportion to the area of the premises not useable by Tenant.
8.2 WAIVER OF Tenant shall be responsible for insuring its personal
SUBROGATION property and trade fixtures located on the premises. Landlord
shall be liable to the Tenant for any loss or damage caused
by water damage, sprinkler leakage, or any of the risks that
are or could be covered by a standard all risk insurance
policy with an extended coverage endorsement, or for any
business interruption.
9.1 EMINENT If a condemning authority takes title by eminent domain
DOMAIN or by agreement in lieu thereof to the entire Building or
a portion sufficient to render the Premises unsuitable for
Tenant's use, then either party may elect to terminate this
lease effective on the date that possession is taken by the
condemning authority. Rent shall be reduced for the
remainder of the term in an amount proportionate to the
reduction in area of the Premises caused by the taking. All
condemnation proceeds shall belong to Landlord, and Tenant
shall have no claim against Landlord or the condemnation
award because of the taking.
10.1 ASSIGNMENT This lease shall bind and inure to the benefit of the
AND parties, their respective heirs, successors, and assigns,
SUBLETTING provided that Tenant shall not assign its interest under
this lease or sublet all or any portion of the Premises
without first obtaining Landlord's consent in writing. This
provision shall apply to all transfers by operation of law
including but not limited to mergers and changes in control
of Tenant. No assignment shall relieve Tenant of its
obligation to pay rent or perform other obligations required
by this lease, and no consent to one assignment or
subletting shall be a consent to any further assignment or
subletting. Landlord shall not unreasonably withhold its
consent to any assignment, or to subletting provided the
subrental rate or effective rental paid by the assignee is
not less than the current scheduled rental rate of the
Building for comparable space and the proposed Tenant is
compatible with Landlord's normal standards for the Building.
If Tenant proposes a subletting or assignment to which
Landlord is required to consent under this paragraph,
Landlord shall have the option of terminating this lease and
dealing directly with the proposed subtenant or assignee, or
any third party. If an assignment or subletting is permitted,
any cash profit, or the net value of any other consideration
received by Tenant as a result of such transaction shall be
paid to Landlord promptly following its receipt by Tenant.
Tenant shall pay any costs incurred by Landlord in connection
with a request for assignment or subletting, including
reasonable attorneys' fees not to exceed $500.00.
11.1 DEFAULT Any of the following shall constitute a default by
Tenant under this lease:
(a) Tenant's failure to pay rent within 10 days after
it is due, or failure to comply with any other term or
condition within 30 days following written notice from
Landlord specifying the noncompliance. If such noncompliance
cannot be cured within the 30-day period, this provision
shall be satisfied if Tenant commences correction within such
period and thereafter proceeds in good faith and with
reasonable diligence to effect compliance as soon as
possible.
(b) Tenant's insolvency, business failure or
assignment for the benefit of its creditors. Tenant's
commencement of proceedings under any provision of any
bankruptcy or insolvency law or failure to obtain dismissal
of any petition filed against it under such laws within the
time required to answer; or the appointment of a receiver for
Tenant's properties.
11.2 REMEDIES FOR In case of default as described in paragraph 11.1,
DEFAULT Landlord shall have the right to the following remedies
which are intended to be cumulative and in addition to any
other remedies provided under applicable law:
(a) Landlord may terminate the lease and retake
possession of the Premises. Following such retaking of
possession, efforts by Landlord to relet the Premises shall
be sufficient if Landlord follows its usual procedures for
finding tenants for the space at rates not less than the
current rates for other comparable space in the Building.
(b) Landlord may recover all damages caused by
Tenant's default which shall include an amount equal to
rentals Landlord is able to reasonably demonstrate were
lost because of the default. Landlord may sue periodically to
recover damages as they occur throughout the lease term,
and no action for
accrued damages shall bar a later action for damages
subsequently accruing. Landlord may elect in any one action
to recover accrued damages plus damages attributable to the
remaining term of the lease. Such damages shall be measured
by the difference between the rent under this lease and the
reasonable rental value of the Premises for the remainder of
the term, discounted to the time of judgement at the
prevailing interest rate on judgements. Landlord shall be
obligated to make reasonable good faith efforts to mitigate
its damages.
(c) Landlord may make any payment or perform any
obligation which Tenant has failed to perform, in which case
Landlord shall be entitled to recover from Tenant upon demand
all amounts so in possession of the premises expended, plus
interest from the date of the expenditure at the rate of one
percent per month. Any such payment or performance by
Landlord shall not waive Tenant's default.
(d) Landlord shall be in default if it fails to
perform any of its obligations hereunder and Tenant shall be
entitled to all remedies available to Tenant at Law or in
equity.
12.1 SURRENDER On expiration or early termination of this lease
Tenant shall deliver all keys to Landlord and surrender the
Premises broom clean and in the same condition as at the
commencement of the term subject only to reasonable wear from
ordinary use and damage or destruction. Tenant shall remove
all of its furnishings and trade fixtures that remain its
property and restore all damage resulting from such removal.
Failure to remove shall be an abandonment of the property,
and Landlord may dispose of it in any manner without
liability. If Tenant fails to vacate the Premises when
required, including failure to remove all its personal
property, Landlord may elect either: (i) to treat the Tenant
as a tenant from month to month, subject to the provisions of
this lease except that rent shall be one-and-one-half times
the total rent being charged when the lease term expired; or
(iii) to eject Tenant from the Premises and recover damages
caused by wrongful holdover.
13.1 REGULATIONS Landlord shall have the right (but shall not be
obligated) to make, revise and enforce regulations or
policies consistent with this lease for the purpose of
promoting safety, order, economy, cleanliness, and good
service to all tenants of the Building. All such
regulations and policies shall be complied with as if part
of this lease. *SEE ADDENDUM
14.1 ACCESS During times other than normal Building hours Tenant's
officers and employees or those having business with
Tenant may be required to identify themselves or show
passes in order to gain access to the Building, Land-lord
shall have no liability for permitting or refusing to
permit access by anyone. Landlord shall have the right to
enter upon the Premises at any time by passkey or
otherwise to determine Tenant's compliance with this
lease, to perform necessary services, maintenance and
repairs to the Building or the Premises, or to show the
Premises to any prospective tenant or purchasers. Except
in the case of emergency such entry shall be at such
times and in such manner as to minimize interference with
the reasonable business use of the Premises by Tenant.
14.2 FURNITURE Tenant shall move furniture and bulky articles in and
AND BULKY out of the Building or make independent use of the elevators
ARTICLES only at times approved by Landlord following at least 24
hours' written notice to Landlord of the intended move.
Landlord will not unreasonably withhold its consent under
this paragraph.
14.3 PARKING Tenant shall have four (4) free parking spaces per
1,000 (one thousand) square feet of rentable space. *SEE
ADDENDUM
15.1 NOTICES Notices between the parties relating to this lease
shall be in writing, effective when delivered, or if mailed,
effective on the third day following mailing, postage
prepaid, via certified mail return receipt requested, to the
address for the party stated in this lease or to such other
address as either party may specify by notice to the other.
Notice to Tenant may always be delivered to the Premises.
Rent shall be payable to Landlord at the same address and in
the same manner, but shall be considered paid only when
received.
16.1 SUBORDINATION This lease shall be subject and subordinate to any
mortgages, deeds of trust, or landsale contracts (hereafter
collectively referred to as encumbrances) now existing
against the Building. At Landlord's option this lease shall
be subject to and subordinate to any future encumbrance
hereafter placed against the Building (including the
underlying land) or any modifications of existing
encumbrances, and Tenant shall execute such documents as may
reasonably be requested by Landlord or the holder of the
encumbrance to evidence this subordination.
TRANSFER OF If the Building is sold or otherwise transferred by
BUILDING Landlord or any successor, Tenant shall attorn to the
purchaser or transferee and recognize it as the Landlord
under this lease, and, provided the purchaser assumes all
obligations hereunder, the transferor shall have no further
liability hereunder.
16.3 ESTOPPELS Either party will within 20 days after notice
from the other execute, acknowledge and deliver to the
other party a certificate certifying whether or not
this lease has been modified and is in full force and
effect; whether there are any modifications or alleged
breaches by the other party; the dates to which rent
has been paid in advance, and the amount of any
security deposit or prepaid rent; and any other facts
that may reasonably be requested. Failure to deliver
the certificate within the specified time shall be
conclusive upon the party of whom the certificate was
requested that the lease is in full force and effect
and has not been modified except as may be
represented by the party requesting the certificate.
If requested by the holder of any encumbrance, or any
ground lessor, Tenant will agree to give such holder
or lessor notice of and an opportunity to cure any
default by Landlord under this lease.
17.1 ATTORNEYS' In any litigation arising out of this lease, the
FEES prevailing party shall be entitled to recover
attorneys' fees at trial and on any appeal.
18.1 QUIET Landlord warrants that so long as Tenant
ENJOYMENT complies with all terms of this lease it shall be
entitled to peaceable and undisturbed possession of
the Premises free from any eviction or disturbance by
Landlord. Landlord shall have no liability to Tenant
for loss or damages arising out of the acts of other
Tenants of the Building or third parties, nor any
liability for any reason which exceeds the value of
its interest in the Building.
19.1 TENANT'S "Tenant's proportionate share" as used herein
PROPORTIONATE means the area of the Premises, divided by the total
SHARE area of the Building (not including basement storage
space), with area determined using one of the methods
of building measurement defined by the Building Owners
and Managers Association (BOMA). Tenant's
proportionate share as of the lease commencement date
shall be 15.14% percent.
19.2 ADDITIONAL Tenant shall pay as additional rent its
RENT-OPERATING proportionate share, as defined in 19.1, of the amount
EXPENSE by which operating expenses for the Building exceed
ADJUSTMENT $4.25 per square foot of gross leasable floor area.
This amount shall be called "the expense stop." As of
January 1 of each year Landlord shall estimate the
amount by which operating expenses are expected to
exceed, if any, the expense stop. Monthly rental for
the year shall be increased by one-twelfth of Tenant's
share of the estimated excess. Following the end of
each calendar year, Landlord shall compute the actual
operating expenses and bill Tenant for any deficiency
or credit Tenant with any excess collected over the
expense stop. As used herein, "operating expenses"
shall mean all costs of operating and maintaining the
Building as determined by standard real estate
accounting practice, including but not limited to: all
water and sewer charges, the cost of steam, natural
gas, electricity provided to the building; janitorial
and cleaning supplies and services; administration
costs and management fees; superintendent fees;
security services, if any; insurance premiums;
licenses, permits for the operation and maintenance of
the building and all of its component elements and
mechanical systems; the annual amortized capital
improvement cost (amortized over such a period as
Landlord may select by not shorter than the period
allowed under the Internal Revenue Service Code and at
a current market interest rate) for any capital
improvements to the building required by any
governmental authority or those which have a
reasonable probability of improving the operating
efficiency of the Building; and the real and personal
property taxes (and any tax levied wholly or partially
in lieu thereof) levied by any governmental authority
against the building and any personal property used in
its operation.
20.1 LIMITATION Any liability of Landlord to Tenant or any other
OF LANDLORD'S person shall be limited to the interest of Landlord in
LIABILITY the Building. Tenant and any other person claiming
through Tenant agrees to look solely to such interest
for the recovery of any judgement against Landlord, it
being intended by the parties that neither Landlord,
nor any assets of Landlord, other than the Building,
shall be liable for any such judgement. For purposes
of this provision "Landlord" includes all employees
and agents of Landlord and all heirs, successors and
assigns of Landlord.
21.1 COMPLETE This lease and the attached Exhibits and
AGREEMENT Schedules, if any, constitute the entire agreement of
the parties and supersede all prior written and oral
agreements and representations. Neither Landlord nor
Tenant is relying on any representations other than
those expressly set forth herein.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this lease as of the day and year first written above.
LANDLORD: By /s/ Dan J. Agnew
-------------------------------
Address for notices: 3601 NW Yeon Name: Dan J. Agnew
-------------------- ----------------------------
Portland, Oregon 97210 Title:
- ---------------------------------------- ---------------------------
TENANT: By /s/ John M. Schiess
-------------------------------
Address for notices: 7600 NE 41st St. #300 Name: JOHN M. SCHIESS
-------------------- ----------------------------
Vancouver, WA 98662 Title: Vice President
- ---------------------------------------- ---------------------------
EXHIBIT "A"
[MAP]
ONE PARK PLACE - THIRD FLOOR
ADDENDUM TO LEASE
Addendum to Office Lease Agreement dated March 15, 1994 by and between DAN J.
AGNEW, as Landlord, and S & P COMPANY, as Tenant.
13.1 REGULATIONS So long as S & P Company shall be the Tenant in
occupancy of the premises under this Lease, smoking
shall be permitted in Suite 300 as regulated by Tenant
unless otherwise prohibited by law and subject to the
provisions of Section 4.1 of the Lease.
14.3 PARKING So long as S & P Company shall be the Tenant in
occupancy of the premises under this Lease, S & P
Company, shall also have five (5) reserved parking
spaces as assigned on the date of this Lease.