EXHIBIT 10.6
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
OFFICE LEASE AGREEMENT
BETWEEN
OR-BF PLAZA LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP
("LANDLORD")
AND
UMPQUA BANK, AN OREGON STATE CHARTERED BANK
("TENANT")
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "LEASE") is made and entered into as of
the _____ day of ___________, 2004, by and between OR-BF PLAZA LIMITED
PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("LANDLORD") and UMPQUA BANK, AN
OREGON STATE CHARTERED BANK ("TENANT"). The following exhibits and attachments
are incorporated into and made a part of this Lease: EXHIBIT A-1 (Outline and
Location of Suite 100), EXHIBIT A-2 (Outline and Location of Suite 1200),
EXHIBIT A-3 (Outline and Location of First Must-Take Space), EXHIBIT A-4
(Outline and Location of Suite 1900 Offering Space), EXHIBIT A-5 (Outline and
Location of ATM/Night Depository Area), Exhibit B (Expenses and Taxes), EXHIBIT
C (Work Letter), EXHIBIT D (Commencement Letter), EXHIBIT E (Building Rules and
Regulations), EXHIBIT F (Additional Provisions), EXHIBIT F-1 (Location of
Customer Parking Spaces), Exhibit G (Form of Guaranty), EXHIBIT H (Janitorial
Specifications) and EXHIBIT I (Suite 900 Lease Termination Agreement).
1. BASIC LEASE INFORMATION.
1.01 "BUILDING" shall mean the building located at ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, commonly known as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza.
"RENTABLE SQUARE FOOTAGE OF THE BUILDING" is deemed to be 271,573
square feet.
1.02 "PREMISES" shall mean the area shown on EXHIBIT A to this Lease. The
Premises is located on the first (1st) and twelfth (12th) floors and
known as suites 100 and 1200. If the Premises include one or more
floors in their entirety, all corridors and restroom facilities
located on such full floor(s) shall be considered part of the
Premises. The "RENTABLE SQUARE FOOTAGE OF THE PREMISES" is deemed to
be 25,184 square feet, as follows: Suite 100 contains 8,020 rentable
square feet, and Suite 1200 contains 17,164 rentable square feet.
Landlord and Tenant stipulate and agree that the Rentable Square
Footage of the Building and the Rentable Square Footage of the
Premises are correct. The parties acknowledge that pursuant to
Section 5 of EXHIBIT F attached hereto, Tenant is obligated to
expand the Premises to include additional space, defined in EXHIBIT
F as the "First Must Take Space", on or about May 1, 2006.
1.03 "BASE RENT":
(a) Suite 100:
ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
------------------------------------ --------------- ----------
DECEMBER 1, 2004 - JULY 31, 2009 $20.00 $13,366.67
AUGUST 1, 2009 - NOVEMBER 30, 2010 $23.00 $15,371.67
DECEMBER 1, 2010 - NOVEMBER 30, 2012 $23.92 $15,986.53
DECEMBER 1, 2012 - NOVEMBER 30, 2014 $24.88 $16,628.13
DECEMBER 1, 2014 - NOVEMBER 30, 2016 $25.88 $17,296.47
Notwithstanding anything in the schedule set forth in this Section
1.03(a) to the contrary, so long as Tenant is not in default under
this Lease, Tenant shall be entitled to an abatement of Base Rent in
the amount of $13,366.67 per month for 7 consecutive full calendar
months of the Term, beginning with the 1st full calendar month of
the Term (the "Suite 100 Base Rent Abatement Period"). The total
amount of Base Rent abated during the Suite 100 Base Rent Abatement
Period shall equal $93,566.69 (the "Suite 100 Abated Base Rent"). If
Tenant defaults at any time during the Term and fails to cure such
default within any applicable cure period under the Lease, all then
(i.e., as of the date of the default) unamortized Suite 100 Abated
Base Rent (assuming amortization of Suite 100 Abated Base Rent over
the Term on a straight-line basis) shall immediately become due and
payable. The payment by Tenant of the unamortized Suite 100 Abated
Base Rent in the event of a default shall not limit or affect any of
Landlord's other rights, pursuant to this Lease or at law or in
equity. During the Suite 100 Base Rent Abatement Period, only Base
Rent shall be abated, and all Suite 100 Additional Rent and other
costs and charges specified in this Lease shall remain as due and
payable pursuant to the provisions of this Lease.
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(b) Suite 1200:
ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
------------------------------------ --------------- ----------
DECEMBER 1, 2004 - NOVEMBER 30, 2006 $22.50 $32,182.50
DECEMBER 1, 2006 - NOVEMBER 30, 2008 $23.40 $33,469.80
DECEMBER 1, 2008 - NOVEMBER 30, 2010 $24.34 $34,814.31
DECEMBER 1, 2010 - NOVEMBER 30, 2012 $25.31 $36,201.74
DECEMBER 1, 2012 - NOVEMBER 30, 2014 $26.32 $37,646.37
DECEMBER 1, 2014 - NOVEMBER 30, 2016 $27.37 $39,148.22
Notwithstanding anything in the schedule set forth in this Section
1.03(b) to the contrary, so long as Tenant is not in default under
this Lease, Tenant shall be entitled to an abatement of Base Rent in
the amount of $32,182.50 per month for 6 consecutive full calendar
months of the Term, beginning with the 1st full calendar month of
the Term (the "Suite 1200 Base Rent Abatement Period"). The total
amount of Base Rent abated during the Suite 1200 Base Rent Abatement
Period shall equal $193,095.00 (the "Suite 1200 Abated Base Rent").
If Tenant defaults at any time during the Term and fails to cure
such default within any applicable cure period under the Lease, all
then (i.e., as of the date of the default) unamortized Suite 1200
Abated Base Rent (assuming amortization of Suite 1200 Abated Base
Rent on a straight-line basis over the Term) shall immediately
become due and payable. The payment by Tenant of the unamortized
Suite 1200 Abated Base Rent in the event of a default shall not
limit or affect any of Landlord's other rights, pursuant to this
Lease or at law or in equity. During the Suite 1200 Base Rent
Abatement Period, only Base Rent shall be abated, and all Additional
Rent and other costs and charges specified in this Lease shall
remain as due and payable pursuant to the provisions of this Lease.
1.04 "TENANT'S PRO RATA SHARE": 9.2734%.
1.05 "BASE YEAR" for Taxes (defined in EXHIBIT B): 2005; "BASE YEAR" for
Expenses (defined in EXHIBIT B): 2005.
1.06 "TERM": A period of 144 months. The Term shall commence
(retroactively) on December 1, 2004 (the "COMMENCEMENT DATE") and,
unless terminated early in accordance with this Lease, end on
November 30, 2016 (the "TERMINATION DATE").
1.07 "ALLOWANCE": $30.00 multiplied by the Rentable Square Footage of the
Premises (inclusive of the First Must-Take Space) per EXHIBIT C
(Work Letter).
1.08 "SECURITY DEPOSIT": None.
1.09 "GUARANTOR(S)": Umpqua Holdings Corporation, an Oregon corporation.
Concurrent with Tenant's execution and delivery of this Lease,
Tenant shall cause each Guarantor, if any, to execute and deliver a
guaranty in favor of Landlord on the form attached hereto as EXHIBIT
G.
1.10 "BROKER(S)": Landlord: ▇▇▇▇ ▇▇▇▇ & Associates.
Tenant: ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇.
1.11 "PERMITTED USE": General office use; provided that, in no event
shall any portion of the Premises located on the 10th floor of the
Building be used for the operation of a business offering accounting
services or consulting services, so long as an existing (as of the
date of this Lease) lessee's prohibition on accounting services or
consulting services on the 10th floor of the Building survives.
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1.12 "NOTICE ADDRESS(ES)":
Landlord: Tenant:
OR-BF Plaza Limited Partnership Umpqua Bank
c/o Equity Office Management, L.L.C. _________________________
One SW Columbia _________________________
▇▇▇▇▇ ▇▇▇ _________________________
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ___________________
Attn: Property Manager
With a copy to:
Umpqua Holdings Corp.,
▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Executive Vice President
and CFO
A copy of any notices to Landlord shall be sent to Equity Office,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: Seattle Regional Counsel.
1.13 "BUSINESS DAY(S)" are Monday through Friday of each week, exclusive
of New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("HOLIDAYS"). Landlord may
designate as additional Holidays, national or state holidays that
are commonly recognized by a substantial number of other office
buildings in the area where the Building is located. "BUILDING
SERVICE HOURS" are 7:00 A.M. to 6:00 P.M. on Business Days and 8:00
A.M. to 1:00 P.M. on Saturdays.
1.14 "LANDLORD WORK" means the work that Landlord is obligated to perform
in the Premises pursuant to a separate agreement (the "WORK
LETTER"), attached to this Lease as EXHIBIT C.
1.15 "PROPERTY" means the Building and the parcel(s) of land on which it
is located and, the parking facilities and other improvements, if
any, serving the Building and the parcel(s) of land on which they
are located.
2. LEASE GRANT.
The Premises are hereby leased to Tenant from Landlord, together with the
right to use any portions of the Property that are designated by Landlord for
the common use of tenants and others (the "COMMON AREAS").
3. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
3.01 The Landlord Work shall be deemed to be "SUBSTANTIALLY COMPLETE" on
the date that all Landlord Work has been performed, other than any details of
construction, mechanical adjustment or any other similar matter, the
non-completion of which does not materially interfere with Tenant's use of the
Premises. The parties expressly acknowledge that the Commencement Date is
anticipated to occur prior to the Substantial Completion of the Landlord Work or
Tenant's occupancy of the Premises.
3.02 Subject to Landlord's obligation, if any, to perform Landlord Work,
the Premises are accepted by Tenant in "as is" condition and configuration
without any representations or warranties by Landlord. By taking possession of
the Premises, Tenant agrees that the Premises are in good order and satisfactory
condition. Landlord shall not be liable for a failure to deliver possession of
the Premises or any other space due to the holdover or unlawful possession of
such space by another party, however Landlord shall use reasonable efforts to
obtain possession of the space. The commencement date for the space, in such
event, shall be postponed until the date Landlord delivers possession of the
Premises to Tenant free from occupancy by any party. If Tenant takes possession
of the Premises before the Commencement Date, such possession shall be subject
to the terms and conditions of this Lease and Tenant shall pay Rent (defined in
Section 4.01) to Landlord for each day of possession before the Commencement
Date. However, except for the cost of services requested by Tenant (e.g. freight
elevator usage), Tenant shall not be required to pay Rent for any days of
possession before the Commencement Date during which Tenant, with the approval
of Landlord, is in possession of the Premises for the sole purpose of performing
improvements or installing furniture, equipment or other personal property.
3.03 Notwithstanding the foregoing, if Landlord has not delivered the
Premises to Tenant for the commencement of Tenant's Initial Alterations (as
described in EXHIBIT C) on or before March 31, 2005 (the "Outside Delivery
Date"), Tenant, as its sole remedy, may terminate this Lease by giving Landlord
written notice of termination on or before the earlier to occur of: (i) 5
Business Days after the Outside Delivery Date; and (ii) the date Landlord so
delivers the Premises to Tenant. In such event, this Lease shall be deemed null
and void and of no further force and effect and Landlord shall promptly refund
any prepaid rent previously advanced by Tenant under this Lease and, so long as
Tenant has not previously
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defaulted under any of its obligations under the Work Letter, the parties hereto
shall have no further responsibilities or obligations to each other with respect
to this Lease. The Outside Delivery Date shall be postponed by the number of
days the date of Substantial Completion of the Landlord Work is delayed due to
(i) the acts omissions of Tenant or (ii) events of Force Majeure.
Notwithstanding anything herein to the contrary, if Landlord determines in good
faith that it will be unable to deliver the Premises to Tenant by the Outside
Delivery Date, Landlord shall provide Tenant with written notice (the "Delivery
Date Extension Notice") of such inability, which Delivery Date Extension Notice
shall set forth the date on which Landlord reasonably believes that the date of
delivery will occur. Upon receipt of the Delivery Date Extension Notice, Tenant
shall have the right to terminate this Lease by providing written notice of
termination to Landlord within 5 Business Days after the date of delivery of the
Delivery Date Extension Notice. If Tenant does not terminate this Lease within
such 5 Business Day period, the Outside Delivery Date automatically shall be
amended to be the date set forth in Landlord's Delivery Date Extension Notice.
4. RENT.
4.01 Tenant shall pay Landlord, without any setoff or deduction, unless
expressly set forth in this Lease, all Base Rent and Additional Rent due for the
Term (collectively referred to as "RENT"). "ADDITIONAL RENT" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord under this
Lease. Tenant shall pay and be liable for all rental, sales and use taxes (but
excluding income taxes), if any, imposed upon or measured by Rent. Base Rent and
recurring monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand, provided that
the installment of Base Rent for the first full calendar month of the Term, and
the first monthly installment of Additional Rent for Expenses and Taxes, shall
be payable upon the execution of this Lease by Tenant. All other items of Rent
shall be due and payable by Tenant on or before 30 days after billing by
Landlord. Rent shall be made payable to the entity, and sent to the address,
Landlord designates and shall be made by good and sufficient check or by other
means acceptable to Landlord. Tenant shall pay Landlord an administration fee
equal to 5% of all past due Rent, provided that Tenant shall be entitled to a
grace period of 5 Business Days for the first 2 late payments of Rent in a
calendar year. In addition, past due Rent shall accrue interest at 12% per
annum. Landlord's acceptance of less than the correct amount of Rent shall be
considered a payment on account of the earliest Rent due. Rent for any partial
month during the Term shall be prorated. No endorsement or statement on a check
or letter accompanying payment shall be considered an accord and satisfaction.
Tenant's covenant to pay Rent is independent of every other covenant in this
Lease.
4.02 Tenant shall pay Tenant's Pro Rata Share of Taxes and Expenses in
accordance with EXHIBIT B of this Lease.
5. COMPLIANCE WITH LAWS; USE.
The Premises shall be used for the Permitted Use and for no other use
whatsoever. Tenant shall comply with all statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity whether in effect
now or later, including the Americans with Disabilities Act ("ADA") ("LAW(S)"),
regarding the occupation of the Premises and the use, condition, configuration
and occupancy of the Premises. In addition, Tenant shall, at its sole cost and
expense, promptly comply with any Laws that relate to the "Base Building"
(defined below), but only to the extent such obligations are triggered by
Tenant's use of the Premises, other than for general office use, or Alterations
or improvements in the Premises performed or requested by Tenant. As of the date
hereof, Landlord has not received any currently applicable notice from any
governmental agencies that the Building is in violation of applicable Laws
(including, without limitation, Title III of the ADA). Except to the extent
properly included in Expenses, Landlord shall be responsible for the cost of
correcting any violations of applicable Laws, including Title III of the ADA,
with respect to the Common Areas of the Building. Notwithstanding the foregoing,
Landlord shall have the right to contest any alleged violation in good faith,
including, without limitation, the right to apply for and obtain a waiver or
deferment of compliance, the right to assert any and all defenses allowed by Law
and the right to appeal any decisions, judgments or rulings to the fullest
extent permitted by Law. Landlord, after the exhaustion of any and all rights to
appeal or contest, will make all repairs, additions, alterations or improvements
necessary to comply with the terms of any final order or judgment. "BASE
BUILDING" shall include the structural portions of the Building, the public
restrooms and the Building mechanical, electrical and plumbing systems and
equipment located in the internal core of the Building on the floor or floors on
which the Premises are located. Tenant shall promptly provide Landlord with
copies of any notices it receives regarding an alleged violation of Law. Tenant
shall comply with the rules and regulations of the Building attached as EXHIBIT
E and such other reasonable rules and regulations adopted by Landlord from time
to time, including rules and regulations for the performance of Alterations
(defined in Section 9).
6. SECURITY DEPOSIT.
The Security Deposit, if any, shall be delivered to Landlord upon the
execution of this Lease by Tenant and held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a
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measure of damages. Landlord may use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any Default (defined in Section 18) by Tenant.
If Landlord uses any portion of the Security Deposit, Tenant shall, within 5
days after demand, restore the Security Deposit to its original amount. Landlord
shall return any unapplied portion of the Security Deposit to Tenant within 45
days after the later to occur of: (a) determination of the final Rent due from
Tenant; or (b) the later to occur of the Termination Date or the date Tenant
surrenders the Premises to Landlord in compliance with Section 25. Landlord may
assign the Security Deposit to a successor or transferee and, following the
assignment, Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the Security Deposit
separate from its other accounts.
7. BUILDING SERVICES.
7.01 Landlord shall furnish Tenant with the following services:
(a) water for use in the Base Building lavatories;
(b) customary heat and air conditioning in season during Building
Service Hours. Tenant shall have the right to receive HVAC service during hours
other than Building Service Hours by paying Landlord's then standard charge for
additional HVAC service and providing such prior notice as is reasonably
specified by Landlord; as of the date hereof, Landlord's charge for after hours
HVAC service is $42.50 per hour, per floor, subject to change from time to time;
any such increase in Landlord's charge for after-hours HVAC shall be reasonably
consistent with the charges for similar services incorporated by owners of other
class "A" buildings in Portland, Oregon for after-hours HVAC service and shall
be based upon (x) the actual cost incurred by Landlord to supply such
after-hours HVAC on an hourly basis and (y) increased wear and tear and
depreciation of equipment to provide such after-hours HVAC, as reasonably
estimated by Landlord in good faith;
(c) standard janitorial service on Business Days in accordance with
the cleaning specifications attached hereto as EXHIBIT H, or such other
reasonably comparable specifications designated by Landlord from time to time;
(d) Elevator service;
(e) Electricity in accordance with the terms and conditions in
Section 7.02;
(f) Access to the Building for Tenant and its employees 24 hours per
day/7 days per week, subject to the terms of this Lease and such security or
monitoring systems as Landlord may reasonably impose, including, without
limitation, sign-in procedures and/or presentation of identification cards; and
(g) such other services as Landlord reasonably determines are
necessary or appropriate for the Property. Subject to Force Majeure, the
interruption described in Section 7.03 below, and the damage described in
Article 16, and to the provisions of Section 7.02 below regarding excessive
electrical consumption, electrical service, lighting, water and elevator service
will be available 24 hours per day, 7 days per week. Landlord additionally will
provide for garbage and recycling pick-up as required by the City of Portland.
7.02 Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (a) through inclusion in Expenses (except
as provided for excess usage); (b) by a separate charge payable by Tenant to
Landlord; or (c) by separate charge billed by the applicable utility company and
payable directly by Tenant. Without the consent of Landlord, Tenant's use of
electrical service shall not exceed, either in voltage, rated capacity, use
beyond Building Service Hours or overall load, that which Landlord reasonably
deems to be standard for the Building. For purposes hereof, the "electrical
standard" for the Building is an overall load of 5 ▇▇▇▇▇ per square foot of
usable floor area for all building standard overhead lighting located within the
Premises which requires a voltage of 480/277 volts and all equipment located and
operated within the Premises which requires a voltage of 120/208 volts single
phase or less, it being understood that electricity required to operate the Base
Building HVAC system is not included within or deducted from such 5 ▇▇▇▇▇ per
square foot. Landlord shall have the right to measure electrical usage by
commonly accepted methods. If it is determined that Tenant is using excess
electricity, Tenant shall pay Landlord for the cost of such excess electrical
usage as Additional Rent.
7.03 Landlord's failure to furnish, or any interruption, diminishment or
termination of services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations, utility
interruptions or the occurrence of an event of Force Majeure (defined in Section
26.03) (collectively a "SERVICE FAILURE") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an abatement
of Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a material portion of the Premises, are
made untenantable for a period in excess of 3 consecutive Business Days as a
result of a Service Failure that is reasonably within the control of Landlord to
correct, then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on the day the
service has been restored. If the entire
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Premises have not been rendered untenantable by the Service Failure, the amount
of abatement shall be equitably prorated.
8. LEASEHOLD IMPROVEMENTS.
All improvements in and to the Premises, including any Alterations
(collectively, "LEASEHOLD IMPROVEMENTS") shall remain upon the Premises at the
end of the Term without compensation to Tenant; provided, however, that trade
fixtures of Tenant which are affixed to the Premises may be removed by Tenant on
or before the end of the Term, so long as Tenant, at Tenant's sole cost, repairs
any damage caused by the removal of such trade fixtures to Landlord's reasonable
satisfaction. Landlord, however, by written notice to Tenant at least 30 days
prior to the Termination Date, may require Tenant, at its expense, to remove (a)
any Cable (defined in Section 9.01) installed by or for the benefit of Tenant,
and (b) any Landlord Work or Alterations that, in Landlord's reasonable
judgment, are of a nature that would require removal and repair costs that are
materially in excess of the removal and repair costs associated with standard
office improvements (collectively referred to as "REQUIRED REMOVABLES").
However, it is agreed that Required Removables shall not include any usual
office improvements such as gypsum board, partitions, ceiling grids and tiles,
fluorescent lighting panels, Building standard doors and non-glued down
carpeting. Required Removables shall include, without limitation, internal
stairways, raised floors, personal baths and showers, vaults, the ATM (defined
in EXHIBIT F), rolling file systems and structural alterations and
modifications. The designated Required Removables shall be removed by Tenant
before the Termination Date. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to perform its
obligations in a timely manner, Landlord may perform such work at Tenant's
expense. Provided that Tenant, in Tenant's request for approval of any Leasehold
Improvements, expressly requests that Landlord designate whether any of the
proposed Leasehold Improvement will constitute Required Removables, Landlord
will advise Tenant in writing as to which portions, if any, of the subject
Leasehold Improvements are Required Removables concurrently with Landlord's
approval of proposed plans and specifications describing any such Leasehold
Improvements.
9. REPAIRS AND ALTERATIONS.
9.01 Tenant shall promptly provide Landlord with notice of any such
conditions. Tenant shall, at its sole cost and expense, perform all maintenance
and repairs to the Premises that are not Landlord's express responsibility under
this Lease, and keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair and maintenance obligations include, without
limitation, repairs to: (a) floor covering; (b) interior partitions; (c) doors
(including exterior doors); (d) the interior side of demising walls; (e)
electronic, phone and data cabling and related equipment that is installed by or
for the exclusive benefit of Tenant (collectively, "CABLE"); (f) supplemental
air conditioning units, kitchens, including hot water heaters, plumbing, and
similar facilities exclusively serving Tenant; and (g) Alterations. For
avoidance of doubt, Tenant is not responsible for the day to day maintenance of
ductwork, cabling and utility lines above the dropped ceiling in the Premises
which ductwork, cabling and utility lines serve the Building and/or Common Areas
generally, as opposed to the Premises specifically. To the extent Landlord is
not reimbursed by insurance proceeds (so long as such lack of reimbursement is
not due to Landlord's failure to maintain the insurance coverage required under
Article 14 below), Tenant shall reimburse Landlord for the cost of repairing
damage to the Building caused by the acts of Tenant, Tenant Related Parties and
their respective contractors and vendors. If Tenant fails to commence any
repairs to the Premises for more than 15 days after notice from Landlord
(although notice shall not be required in an emergency), and thereafter to
diligently prosecute such repairs to completion, Landlord may make the repairs,
and Tenant shall pay the reasonable cost of the repairs, together with an
administrative charge in an amount equal to 5% of the cost of the repairs.
9.02 Landlord shall keep and maintain in good repair and working order,
commensurate with the maintenance levels of other "Class A" office buildings in
Portland, Oregon, the: (a) structural elements of the Building; (b) mechanical
(including HVAC), electrical, plumbing and fire/life safety systems serving the
Building in general (including (x) utility lines to the point of entry to the
Premises, regardless of whether such utility lines serve the Premises
exclusively); and (y) ductwork and utility lines within the Premises which serve
the Building generally); (c) Common Areas; (d) roof of the Building; (e)
exterior windows of the Building; and (f) elevators serving the Building.
Landlord shall promptly make repairs for which Landlord is responsible.
9.03 Tenant shall not make alterations, repairs, additions or improvements
or install any Cable (collectively referred to as "ALTERATIONS") without first
obtaining the written consent of Landlord in each instance, which consent shall
not be unreasonably withheld or delayed. However, Landlord's consent shall not
be required for any Alteration that satisfies all of the following criteria (a
"COSMETIC ALTERATION"): (a) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (b) is not visible from
the exterior of the Premises or Building; (c) will not affect the Base Building;
and (d) does not require work to be performed inside the walls or above the
ceiling of the Premises. Cosmetic Alterations shall be subject to all the other
provisions of this Section 9.03. Prior to starting work, Tenant shall furnish
Landlord with plans and specifications; names of contractors reasonably
acceptable to Landlord (provided that Landlord may designate specific
contractors with
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respect to Base Building); required permits and approvals; evidence of
contractor's and subcontractor's insurance in amounts reasonably required by
Landlord and naming Landlord as an additional insured; and any security for
performance in amounts reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its approval. Alterations
shall be constructed in a good and workmanlike manner using materials of a
quality reasonably approved by Landlord. Tenant shall reimburse Landlord for any
sums reasonably paid by Landlord for third party examination of Tenant's plans
for non-Cosmetic Alterations. In addition, Tenant shall pay Landlord a fee for
Landlord's oversight and coordination of any non-Cosmetic Alterations equal to
5% of the cost of the Alterations. Upon completion, Tenant shall furnish
"as-built" plans for non-Cosmetic Alterations, completion affidavits and full
and final waivers of lien. Landlord's approval of an Alteration shall not be
deemed a representation by Landlord that the Alteration complies with Law.
10. ENTRY BY LANDLORD.
10.01 Landlord may enter the Premises to inspect, show or clean the
Premises or to perform or facilitate the performance of repairs, alterations or
additions to the Premises or any portion of the Building. Except in emergencies
or to provide Building services, Landlord shall provide Tenant with reasonable
prior notice of entry (which notice may be telephonic except in the case of
scheduled, non-emergency repairs or inspections, in which event written notice
will be provided) and shall use reasonable efforts to minimize any interference
with Tenant's use of the Premises, including using reasonable efforts to ensure
that Landlord's construction activities (including scaffolding) do not block
access to the Premises or Tenant's signage. If reasonably necessary, Landlord
may temporarily close all or a portion of the Premises to perform repairs,
alterations and additions. However, except in emergencies, Landlord will not
close the Premises if the work can reasonably be completed on weekends and after
Building Service Hours. Entry by Landlord shall not constitute a constructive
eviction or entitle Tenant to an abatement or reduction of Rent. Notwithstanding
the foregoing, if Landlord temporarily closes the Premises as provided above for
a period in excess of 3 consecutive Business Days, Tenant, as its sole remedy,
shall be entitled to receive a per diem abatement of Base Rent during the period
beginning on the 4th consecutive Business Day of closure and ending on the date
on which the Premises are returned to Tenant in a tenantable condition. Tenant,
however, shall not be entitled to an abatement if the repairs, alterations
and/or additions to be performed are required as a result of the acts or
omissions of Tenant, its agents, employees or contractors, including, without
limitation, a default by Tenant in its maintenance and repair obligations under
the Lease.
10.02 Notwithstanding the provisions of Section 10.01 above, Tenant, at
its own expense, may provide its own locks to an area within the Premises such
as vaults and data processing rooms ("Secured Area"). Tenant need not furnish
Landlord with a key (unless the fire department requires that a key be furnished
for the lock box maintained by Landlord for fire department access, in which
event Tenant will furnish to Landlord such key or keys as may be so required,
which Landlord will retain in the Building's lock box solely for fire department
use), but upon the Termination Date or earlier expiration or termination of
Tenant's right to possession, Tenant shall surrender all such keys to Landlord.
If Landlord must gain access to a Secured Area in a non-emergency situation,
Landlord shall contact Tenant, and Landlord and Tenant shall arrange a mutually
agreed upon time for Landlord to have such access. Landlord shall comply with
all reasonable security measures pertaining to the Secured Area. If Landlord
determines in its sole discretion that an emergency in the Building or the
Premises, including, without limitation, a suspected fire or flood, requires
Landlord to gain access to the Secured Area, Tenant hereby authorizes Landlord
to forcibly enter the Secured Area. In such event, Landlord shall have no
liability whatsoever to Tenant, and Tenant shall pay all reasonable expenses
incurred by Landlord in repairing or reconstructing any entrance, corridor, door
or other portions of the Premises damaged as a result of a forcible entry by
Landlord. Landlord shall have no obligation to provide either janitorial service
or cleaning in any Secured Area.
11. ASSIGNMENT AND SUBLETTING.
11.01 Except in connection with a Permitted Transfer (defined in Section
11.04), Tenant shall not assign, sublease, transfer or encumber any interest in
this Lease or allow any third party to use any portion of the Premises
(collectively or individually, a "TRANSFER") without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed if Landlord does not exercise its recapture rights under Section 11.02.
If the entity which controls the voting shares/rights of Tenant changes at any
time, such change of ownership or control shall constitute a Transfer unless
Tenant is an entity whose outstanding stock is listed on a recognized securities
exchange or if at least 80% of its voting stock is owned by another entity, the
voting stock of which is so listed. Any attempted Transfer in violation of this
Section is voidable by Landlord. In no event shall any Transfer, including a
Permitted Transfer, release or relieve Tenant from any obligation under this
Lease.
11.02 Tenant shall provide Landlord with financial statements for the
proposed transferee, a fully executed copy of the proposed assignment, sublease
or other Transfer documentation and such other information as Landlord may
reasonably request. Within 15 Business Days after receipt of the required
information and documentation, Landlord shall either: (a) consent to the
Transfer by execution of a consent agreement in a form reasonably designated by
Landlord; (b) reasonably refuse to consent to the Transfer in writing; or (c) in
the event of an assignment of this Lease or a subletting of any portion of the
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Premises used as retail space (except, in each case, with respect to a Permitted
Transfer), recapture the portion of the Premises that Tenant is proposing to
Transfer. If Landlord exercises its right to recapture, this Lease shall
automatically be amended (or terminated if the entire Premises is being assigned
or sublet) to delete the applicable portion of the Premises effective on the
proposed effective date of the Transfer. Tenant shall pay Landlord a review fee
of $1,500.00 for Landlord's review of any Permitted Transfer or requested
Transfer.
11.03 Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of the Rent
payable to Landlord for the portion of the Premises and Term covered by the
Transfer. Tenant shall pay Landlord for Landlord's share of the excess within 30
days after Tenant's receipt of the excess. Tenant may deduct from the excess, on
a straight-line basis, all reasonable and customary expenses directly incurred
by Tenant attributable to the Transfer. If Tenant is in Default, Landlord may
require that all sublease payments be made directly to Landlord, in which case
Tenant shall receive a credit against Rent in the amount of Tenant's share of
payments received by Landlord.
11.04 Tenant may assign this Lease to a successor to Tenant by purchase,
merger, consolidation or reorganization (an "OWNERSHIP CHANGE") or assign this
Lease or sublet all or a portion of the Premises to an Affiliate without the
consent of Landlord, provided that all of the following conditions are satisfied
(a "PERMITTED TRANSFER"): (a) Tenant is not in Default; (b) in the event of an
Ownership Change, Tenant's successor shall own substantially all of the assets
of Tenant and have a net worth which is equal to or greater than the Minimum Net
Worth (defined below); (c) the use to which the transferee under the Permitted
Transfer would put Suite 150 or any retail space in the Premises is the
Permitted Use applicable to Suite 150 or any such retail space; and (d) Tenant
shall give Landlord written notice at least 15 Business Days prior to the
effective date of the Permitted Transfer. Tenant's notice to Landlord shall
include information and documentation evidencing the Permitted Transfer and
showing that each of the above conditions has been satisfied. If requested by
Landlord, Tenant's successor shall sign a commercially reasonable form of
assumption agreement. "AFFILIATE" shall mean an entity controlled by,
controlling or under common control with Tenant. As used herein, the "Minimum
Net Worth" shall initially mean $100,000,000.00. Notwithstanding the foregoing
to the contrary, the Minimum Net Worth shall be subject to adjustment, as of
each anniversary of the Commencement Date (each an "Adjustment Date") to equal
the initial Minimum Net Worth, described above, increased by the percentage
increase in the CPI (defined below) most recently issued as of the date
immediately preceding the applicable Adjustment Date (an "Adjustment Index")
over the CPI issued most recently prior to the Commencement Date (the "Base
CPI"). For example, if the Base CPI is 100, and the Adjustment CPI applicable to
the third (3rd) anniversary of the Commencement Date is 114, then the Minimum
Net Worth applicable to the fourth (4th) year of the Term shall be the Initial
Minimum Net Worth, increased by fourteen percent (14%). As used herein, the
"CPI" shall mean the Consumer Price Index, for All Urban Consumers (CPI-U), U.S.
City Average, 1982-84=100; if said index is no longer published, Landlord will
have the right to select, in good faith, a suitable replacement index.
12. LIENS.
Tenant shall not permit mechanics' or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for the benefit of Tenant or its
transferees. Tenant shall give Landlord notice at least 15 days prior to the
commencement of any work in the Premises to afford Landlord the opportunity,
where applicable, to post and record notices of non-responsibility. Tenant,
within 10 days of notice from Landlord, shall fully discharge any lien by
settlement, by bonding or by insuring over the lien in the manner prescribed by
the applicable lien Law. If Tenant fails to do so, Landlord may bond, insure
over or otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord, including, without limitation, reasonable attorneys'
fees.
13. INDEMNITY AND WAIVER OF CLAIMS.
Tenant hereby waives all claims against and releases Landlord and its
trustees, members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagees (defined in Section 23) and agents (the "LANDLORD RELATED
PARTIES") from all claims for any injury to or death of persons, damage to
property or business loss in any manner related to (a) Force Majeure, (b) acts
of third parties, (c) the bursting or leaking of any tank, water closet, drain
or other pipe, (d) the inadequacy or failure of any security services, personnel
or equipment, or (e) any matter not within the reasonable control of Landlord.
Notwithstanding the foregoing, except as provided in Section 15 to the contrary,
Tenant shall not be required to waive any claims against Landlord (other than
for loss or damage to Tenant's business) where such loss or damage is due to the
negligence or willful misconduct of Landlord or any Landlord Related Parties.
Nothing herein shall be construed as to diminish the repair and maintenance
obligations of Landlord contained elsewhere in this Lease. Except to the extent
caused by the negligence or willful misconduct of Landlord or any Landlord
Related Parties, Tenant shall indemnify, defend and hold Landlord and Landlord
Related Parties harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses, including, without
limitation, reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law) (collectively referred to as "LOSSES"), which may
be imposed upon, incurred by or asserted against
8
Landlord or any of the Landlord Related Parties by any third party and arising
out of or in connection with any damage or injury occurring in the Premises or
any acts or omissions (including violations of Law) of Tenant, the Tenant
Related Parties or any of Tenant's transferees, contractors or licensees. Except
to the extent caused by the negligence or willful misconduct of Tenant or any
Tenant Related Parties, Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners, officers, directors,
employees and agents ("TENANT RELATED PARTIES") harmless against and from all
Losses which may be imposed upon, incurred by or asserted against Tenant or any
of the Tenant Related Parties by any third party and arising out of or in
connection with the acts or omissions (including violations of Law) of Landlord
or the Landlord Related Parties.
14. INSURANCE.
Tenant shall maintain the following insurance ("TENANT'S INSURANCE"): (a)
Commercial General Liability Insurance applicable to the Premises and its
appurtenances providing, on an occurrence basis, a minimum combined single limit
of $2,000,000.00; (b) Property/Business Interruption Insurance written on an All
Risk or Special Perils form, with coverage for broad form water damage including
earthquake sprinkler leakage, at replacement cost value and with a replacement
cost endorsement covering all of Tenant's business and trade fixtures,
equipment, movable partitions, furniture, merchandise and other personal
property within the Premises ("TENANT'S PROPERTY") and any Leasehold
Improvements performed by or for the benefit of Tenant; (c) Workers'
Compensation Insurance in amounts required by Law; and (d) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing Tenant's
Insurance shall have an A.M. Best rating of not less than A-VIII. All Commercial
General Liability Insurance policies shall name as additional insureds Landlord
(or its successors and assignees), the managing agent for the Building and any
Mortgagee, and their respective successors and assigns, as the interests of such
designees shall appear. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any cancellation, termination, material
change or lapse of insurance. Tenant shall provide Landlord with a certificate
of insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the
Premises, and thereafter as necessary to assure that Landlord always has current
certificates evidencing Tenant's Insurance. Landlord shall maintain the
following insurance ("Landlord's Insurance"), the premiums of which will be
included in Expenses: (1) Commercial General Liability insurance applicable to
the Property, Building and Common Areas providing, on an occurrence basis, a
minimum combined single limit of at least $2,000,000.00; (2) All Risk Property
Insurance on the Building at replacement cost value; (3) Worker's Compensation
insurance as required by the state in which the Building is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence.
15. SUBROGATION.
Landlord and Tenant hereby waive and shall cause their respective
insurance carriers to waive any and all rights of recovery, claims, actions or
causes of action against the other for any loss or damage with respect to
Tenant's Property, Leasehold Improvements, the Building, the Premises, or any
contents thereof, including rights, claims, actions and causes of action based
on negligence, which loss or damage is (or would have been, had the insurance
required by this Lease been carried) covered by insurance.
16. CASUALTY DAMAGE.
16.01 If all or any portion of the Premises becomes untenantable by fire
or other casualty to the Premises (collectively a "CASUALTY"), Landlord, with
reasonable promptness, shall cause a general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required using standard working methods to Substantially Complete the repair and
restoration of the Premises (excluding any Leasehold Improvements, the repair of
which will be carried by Tenant) and any Common Areas necessary to provide
access to the Premises ("COMPLETION ESTIMATE"). If the Completion Estimate
indicates that the Premises or any Common Areas necessary to provide access to
the Premises cannot be made tenantable within 270 days from the date of
casualty, then either party shall have the right to terminate this Lease upon
written notice to the other within 10 days after receipt of the Completion
Estimate; if the ground floor retail portion of the Premises (i.e., Suite 100
and, after the expiration of the Suite 150 Lease (as defined in EXHIBIT F),
Suite 150 (as defined in EXHIBIT F) is the only portion of the Premises that is
affected by a Casualty but, pursuant to the Completion Estimate, the damage
cannot be repaired within 270 days following the date of Casualty, Tenant will
have the right to terminate this Lease with respect to the ground floor retail
portion of the Premises only, by written notice delivered in accordance with the
preceding sentence. If Tenant so terminates this Lease with respect to the
ground floor portion of the Premises, Landlord will promptly prepare an
amendment to this Lease removing the ground floor of the Premises from the
Premises, and the parties will mutually execute such amendment. Tenant, however,
shall not have any right to terminate this Lease if the Casualty was caused by
the gross negligence or intentional misconduct of Tenant or any Tenant Related
Parties. In addition, Landlord, by notice to Tenant within 90 days after the
date of the Casualty, shall have the right to terminate this Lease if: (1) the
Premises have been materially damaged and there is less than 2
9
years of the Term remaining on the date of the Casualty; (2) any Mortgagee
requires that the insurance proceeds be applied to the payment of the mortgage
debt; or (3) a material uninsured loss to the Building occurs (Landlord's
failure to maintain the insurance coverage required hereunder cannot be used as
a basis for establishing an uninsured loss). Landlord's termination of this
Lease pursuant to this Section 16.01 will be conditioned on Landlord similarly
terminating the leases of all Building tenants (x) who are similarly affected by
such damage and (y) pursuant to whose leases Landlord has a termination right
substantially similar to the termination right set forth herein. Notwithstanding
the foregoing to the contrary, if Landlord elects to terminate this Lease
pursuant to clause (1) above, and Tenant, within ten (10) Business Days
following delivery of Landlord's termination notice, delivers an Initial Renewal
Notice pursuant to Section 3 or 4 of EXHIBIT F attached hereto (and provided
Tenant is not precluded from exercising the applicable Renewal Option pursuant
to the provisions of Section 3.A or 4.A of EXHIBIT F [the restrictions on early
notice provided in Sections 3.A.(1) and 4.A.(1) of EXHIBIT F being waived solely
in the circumstances described in this sentence], Landlord's exercise of the
right to terminate this Lease pursuant to clause (1) above will be null and
void; however, (x) the foregoing will not preclude Landlord from exercising any
other termination option described in this Section 16.01 and (y) if Tenant's
exercise of any Renewal Option as described herein is subsequently rendered null
and void as described in the final sentence of Section 3.C or 4.C of EXHIBIT F,
Landlord will once again have the right to terminate this Lease.
16.02 If this Lease is not terminated, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, restore the Premises (excluding
Leasehold Improvements) and Common Areas. Such restoration shall be to
substantially the same condition that existed prior to the Casualty and prior to
the installation of any Leasehold Improvements, except for modifications
required by Law or any other modifications to the Common Areas deemed desirable
by Landlord. Landlord shall not be liable for any inconvenience to Tenant, or
injury to Tenant's business resulting in any way from the Casualty or the repair
thereof. Provided that Tenant is not in Default, during any period of time prior
to the completion of Landlord's repair obligations as set forth herein, that all
or a material portion of the Premises is rendered untenantable as a result of a
Casualty, the Rent shall ▇▇▇▇▇ for the portion of the Premises that is
untenantable and not used by Tenant.
17. CONDEMNATION.
Either party may terminate this Lease if any material part of the Premises
is taken or condemned for any public or quasi-public use under Law, by eminent
domain or private purchase in lieu thereof (a "TAKING"). Additionally,
Landlord's termination of this Lease pursuant to this Section 17.01 will be
conditioned on Landlord similarly terminating the leases of all Building tenants
(i) who are similarly affected by such Taking and (ii) pursuant to whose leases
Landlord has a termination right substantially similar to the termination right
set forth herein. Landlord shall also have the right to terminate this Lease if
there is a Taking of any portion of the Building or Property which would have a
material adverse effect on Landlord's ability to profitably operate the
remainder of the Building. The terminating party shall provide written notice of
termination to the other party within 45 days after it first receives notice of
the Taking. The termination shall be effective on the date the physical taking
occurs. If this Lease is not terminated, Base Rent and Tenant's Pro Rata Share
shall be appropriately adjusted to account for (x) any reduction in the square
footage of the Premises which is available for Tenant's use during any period of
repair or reconstruction necessitated by such Taking and (y) any reduction in
the square footage of the Building or Premises. All compensation awarded for a
Taking shall be the property of Landlord. The right to receive compensation or
proceeds are expressly waived by Tenant, however, Tenant may file a separate
claim for Tenant's Property and Tenant's reasonable relocation expenses,
provided the filing of the claim does not diminish the amount of Landlord's
award. If only a part of the Premises is subject to a Taking and this Lease is
not terminated, Landlord, with reasonable diligence, will restore the remaining
portion of the Premises as nearly as practicable to the condition immediately
prior to the Taking.
18. EVENTS OF DEFAULT.
Each of the following occurrences shall be a "DEFAULT": (a) Tenant's
failure to pay any portion of Rent when due, if the failure continues for 5
Business Days after written notice to Tenant ("MONETARY DEFAULT"); (b) Tenant's
failure (other than a Monetary Default) to comply with any term, provision,
condition or covenant of this Lease, if the failure is not cured within 20 days
after written notice to Tenant provided, however, if Tenant's failure to comply
cannot reasonably be cured within 20 days, Tenant shall be allowed additional
time (not to exceed 120 days) as is reasonably necessary to cure the failure so
long as Tenant begins the cure within 10 days and diligently pursues the cure to
completion; (c) Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts when due or forfeits or loses its right
to conduct business and does not restore its right to do business within 10 days
following such loss; (d) the leasehold estate is taken by process or operation
of Law; (e) in the case of any ground floor or retail portion of the Premises,
Tenant does not take possession of or abandons or vacates all or any portion of
the ground floor or retail portion of the Premises located on the ground floor
(unless associated with the performance of Alterations therein); or (f) Tenant
is in default beyond any notice and cure period under
10
any other lease or agreement with Landlord at the Building or Property. If
Landlord provides Tenant with notice of Tenant's failure to comply with the same
specific provision of this Lease on 3 separate occasions during any 12 month
period, Tenant's subsequent violation of such provision shall, at Landlord's
option, be an incurable Default by Tenant. All notices sent under this Section
shall be in satisfaction of, and not in addition to, notice required by Law.
19. REMEDIES.
19.01 Upon Default, Landlord shall have the right to pursue any one or
more of the following remedies:
(a) Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender the
Premises, Landlord, in compliance with Law, may enter upon and take
possession of the Premises and remove Tenant, Tenant's Property and any
party occupying the Premises. Tenant shall pay Landlord, on demand, all
past due Rent and other losses and damages Landlord suffers as a result of
Tenant's Default, including, without limitation, all Costs of Reletting
(defined below) and any deficiency that may arise from reletting or the
failure to relet the Premises. "COSTS OF RELETTING" shall include all
reasonable costs and expenses incurred by Landlord in reletting or
attempting to relet the Premises, including, without limitation, legal
fees, brokerage commissions, the cost of alterations and the value of
other concessions or allowances granted to a new tenant. Notwithstanding
the above, if Landlord relets the Premises for a term (the "Relet Term")
that extends past the Termination Date of this Lease (without
consideration of any earlier termination pursuant to this Article 19), the
Costs of Reletting which may be included in Landlord's damages under this
Lease shall be limited to a prorated portion of the Costs of Reletting,
based on the percentage that the length of the Term remaining on the date
Landlord terminates this Lease or Tenant's right to possession bears to
the length of the Relet Term. For example, if there are 2 years left on
the Term at the time that Landlord terminates possession and, prior to the
expiration of the 2 year period, Landlord enters into a lease with a Relet
Term of 10 years with a new tenant, then only 20% of the Costs of
Reletting shall be included when determining Landlord's damages.
(b) Terminate Tenant's right to possession of the Premises and, in
compliance with Law, remove Tenant, Tenant's Property and any parties
occupying the Premises. Landlord may (but shall not be obligated to) relet
all or any part of the Premises, without notice to Tenant, for such period
of time and on such terms and conditions (which may include concessions,
free rent and work allowances) as Landlord in its absolute discretion
shall determine. Landlord may collect and receive all rents and other
income from the reletting. Tenant shall pay Landlord on demand all past
due Rent, all Costs of Reletting and any deficiency arising from the
reletting or failure to relet the Premises. The re-entry or taking of
possession of the Premises shall not be construed as an election by
Landlord to terminate this Lease.
19.02 In lieu of calculating damages under Section 19.01, Landlord may
elect to receive as damages the sum of (a) all Rent accrued through the date of
termination of this Lease or Tenant's right to possession, and (b) an amount
equal to the total Rent that Tenant would have been required to pay for the
remainder of the Term discounted (using the discount rate of the Federal Reserve
Bank of San Francisco at the time of the event, plus 1%) to present value, minus
the then present fair rental value of the Premises for the remainder of the
Term, similarly discounted, after deducting all anticipated commercially
reasonable Costs of Reletting. If Tenant is in Default of any of its
non-monetary obligations under the Lease, Landlord shall have the right to
perform such obligations. Tenant shall reimburse Landlord for the cost of such
performance upon demand together with an administrative charge equal to 5% of
the cost of the work performed by Landlord. The repossession or re-entering of
all or any part of the Premises shall not relieve Tenant of its liabilities and
obligations under this Lease. No right or remedy of Landlord shall be exclusive
of any other right or remedy. Each right and remedy shall be cumulative and in
addition to any other right and remedy now or subsequently available to Landlord
at Law or in equity.
19.03 Landlord agrees to use reasonable efforts to mitigate damages,
provided that those efforts shall not require Landlord to relet the Premises in
preference to any other space in the Building or to relet the Premises to any
party that Landlord could reasonably reject as a transferee pursuant to Section
11.
20. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE
LESSER OF (A) THE INTEREST OF LANDLORD IN THE PROPERTY, OR (B) THE EQUITY
INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY WERE ENCUMBERED BY
THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY. TENANT
SHALL LOOK SOLELY TO LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER
LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
11
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD
OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO
OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE.
BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE
LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED
DEFAULT.
21. RELOCATION. [INTENTIONALLY OMITTED]
22. HOLDING OVER.
If Tenant fails to surrender all or any part of the Premises at the
termination of this Lease, occupancy of the Premises after termination shall be
that of a tenancy at sufferance. Tenant's occupancy shall be subject to all the
terms and provisions of this Lease, and Tenant shall pay an amount (on a per
month basis without reduction for partial months during the holdover) equal 125%
of the Base Rent due for the period immediately preceding such holdover for the
initial 30 days of such holdover, and an amount equal to 150% of the Base Rent
due for the period immediately preceding the holdover thereafter during any such
holdover plus, in each case, 100% of applicable Additional Rent. No holdover by
Tenant or payment by Tenant after the termination of this Lease shall be
construed to extend the Term or prevent Landlord from immediate recovery of
possession of the Premises by summary proceedings or otherwise. If Landlord is
unable to deliver possession of the Premises to a new tenant or to perform
improvements for a new tenant as a result of Tenant's holdover and Tenant fails
to vacate the Premises within 15 days after notice from Landlord, Tenant shall
be liable for all damages that Landlord suffers from the holdover.
23. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "MORTGAGE").
The party having the benefit of a Mortgage shall be referred to as a
"MORTGAGEE". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. As an alternative, a Mortgagee shall have
the right at any time to subordinate its Mortgage to this Lease. Upon request,
Tenant, without charge, shall attorn to any successor to Landlord's interest in
this Lease. Landlord and Tenant shall each, within 10 days after receipt of a
written request from the other, execute and deliver a commercially reasonable
estoppel certificate to those parties as are reasonably requested by the other
(including a Mortgagee or prospective purchaser). Without limitation, such
estoppel certificate may include a certification as to the status of this Lease,
the existence of any defaults and the amount of Rent that is due and payable.
Notwithstanding the foregoing in this Section 23 to the contrary, as a condition
precedent to the future subordination of this Lease to a future Mortgage,
Landlord shall be required to provide Tenant with a non-disturbance,
subordination, and attornment agreement in favor of Tenant from any Mortgagee
who comes into existence after the Commencement Date. Such non-disturbance,
subordination, and attornment agreement in favor of Tenant shall provide that,
so long as Tenant is paying the Rent due under the Lease and is not otherwise in
default under the Lease beyond any applicable cure period, its right to
possession and the other terms of the Lease shall remain in full force and
effect. Such non-disturbance, subordination, and attornment agreement may
include other commercially reasonable provisions in favor of the Mortgagee,
including, without limitation, additional time on behalf of the Mortgagee to
cure defaults of the Landlord and provide that (a) neither Mortgagee nor any
successor-in-interest shall be bound by (i) any payment of the Base Rent,
Additional Rent, or other sum due under this Lease for more than 1 month in
advance or (ii) any amendment or modification of the Lease made without the
express written consent of Mortgagee or any successor-in-interest; (b) neither
Mortgagee nor any successor-in-interest will be liable for (i) any act or
omission or warranties of any prior landlord (including Landlord), (ii) the
breach of any warranties or obligations relating to construction of improvements
on the Property or any tenant finish work performed or to have been performed by
any prior landlord (including Landlord), or (iii) the return of any security
deposit, except to the extent such deposits have been received by Mortgagee; and
(c) neither Mortgagee nor any successor-in-interest shall be subject to any
offsets or defenses which Tenant might have against any prior landlord
(including Landlord).
24. NOTICE.
All demands, approvals, consents or notices (collectively referred to as a
"NOTICE") shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Section 1. Each notice shall be deemed to have been received on the earlier to
occur of actual delivery or the date on which delivery is refused, or, if Tenant
has vacated the Premises or any other Notice Address of Tenant without providing
a new Notice Address, 3 days after notice is deposited in the U.S. mail or with
a courier service in the manner described above. Either party may, at any time,
change its Notice
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Address (other than to a post office box address) by giving the other party
written notice of the new address.
25. SURRENDER OF PREMISES.
At the termination of this Lease or Tenant's right of possession, Tenant
shall remove Tenant's Property from the Premises, and quit and surrender the
Premises to Landlord, broom clean, and in good order, condition and repair,
ordinary wear and tear and damage which Landlord is obligated to repair
hereunder excepted. If Tenant fails to remove any of Tenant's Property within 5
Business Days after termination of this Lease or Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred. If Tenant fails to remove Tenant's Property from the Premises or
storage, within 30 days after notice, Landlord may deem all or any part of
Tenant's Property to be abandoned and title to Tenant's Property shall vest in
Landlord.
26. MISCELLANEOUS.
26.01 This Lease shall be interpreted and enforced in accordance with the
Laws of the state or commonwealth in which the Building is located and Landlord
and Tenant hereby irrevocably consent to the jurisdiction and proper venue of
such state or commonwealth. If any term or provision of this Lease shall to any
extent be void or unenforceable, the remainder of this Lease shall not be
affected. If there is more than one Tenant or if Tenant is comprised of more
than one party or entity, the obligations imposed upon Tenant shall be joint and
several obligations of all the parties and entities, and requests or demands
from any one person or entity comprising Tenant shall be deemed to have been
made by all such persons or entities. Notices to any one person or entity shall
be deemed to have been given to all persons and entities. Tenant represents and
warrants to Landlord that each individual executing this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant and that Tenant is not, and
the entities or individuals constituting Tenant or which may own or control
Tenant or which may be owned or controlled by Tenant are not, among the
individuals or entities identified on any list compiled pursuant to Executive
Order 13224 for the purpose of identifying suspected terrorists.
26.02 If either party institutes a suit against the other for violation of
or to enforce any covenant, term or condition of this Lease, the prevailing
party shall be entitled to all of its costs and expenses, including, without
limitation, reasonable attorneys' fees. Landlord and Tenant hereby waive any
right to trial by jury in any proceeding based upon a breach of this Lease.
Either party's failure to declare a default immediately upon its occurrence, or
delay in taking action for a default, shall not constitute a waiver of the
default, nor shall it constitute an estoppel.
26.03 Whenever a period of time is prescribed for the taking of an action
by Landlord or Tenant (other than the payment of the Security Deposit or Rent),
the period of time for the performance of such action shall be extended by the
number of days that the performance is actually delayed due to strikes, acts of
God, shortages of labor or materials, war, terrorist acts, civil disturbances
and other causes beyond the reasonable control of the performing party ("FORCE
MAJEURE").
26.04 Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the Building and
Property. Upon transfer Landlord shall be released from any further obligations
hereunder and Tenant agrees to look solely to the successor in interest of
Landlord for the performance of such obligations, provided that, any successor
pursuant to a voluntary, third party transfer (but not as part of an involuntary
transfer resulting from a foreclosure or deed in lieu thereof) shall have
assumed Landlord's obligations under this Lease.
26.05 Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only and the delivery of it does not constitute an offer to Tenant or an
option.
(a) Tenant represents that it has dealt directly with and only with
the Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless from
all claims of any other brokers claiming to have represented Tenant in
connection with this Lease. Landlord agrees to indemnify and hold Tenant
and the Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this Lease.
(b) Pursuant to the requirements of OAR ▇▇▇-▇▇-▇▇▇, disclosure is
hereby made that Landlord or an affiliate of Landlord, holds an Oregon
real estate license and, to the extent applicable, is only representing
Landlord in this Lease transaction.
26.06 Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension or termination rights granted to Landlord or
Tenant. The expiration of the Term, whether by lapse of time, termination or
otherwise, shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or termination of this
Lease.
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26.07 Tenant may peacefully have, hold and enjoy the Premises, subject to
the terms of this Lease, provided Tenant pays the Rent and fully performs all of
its covenants and agreements. This covenant shall be binding upon Landlord and
its successors only during its or their respective periods of ownership of the
Building.
26.08 This Lease does not grant any rights to light or air over or about
the Building. Landlord excepts and reserves exclusively to itself any and all
rights not specifically granted to Tenant under this Lease. This Lease
constitutes the entire agreement between the parties and supersedes all prior
agreements and understandings related to the Premises, including all lease
proposals, letters of intent and other documents; with respect to Suite 150, as
described in Section 1 of EXHIBIT F, this Lease does not supercede the Suite 150
Lease. Neither party is relying upon any warranty, statement or representation
not contained in this Lease. This Lease may be modified only by a written
agreement signed by an authorized representative of Landlord and Tenant.
26.09 Landlord represents to Tenant that, as of the date of this Lease,
Landlord is the fee owner of the Building, and there is no Mortgage encumbering
the Building.
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
OR-BF PLAZA LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP
By: EOP-QRS Trust, a Maryland real
estate investment trust, its
general partner
By: _____________________________
Name: ___________________________
Title: __________________________
TENANT:
UMPQUA BANK, AN OREGON STATE CHARTERED
BANK
By: _________________________________
Name: _______________________________
Title: ______________________________
Tenant's Tax ID Number (SSN or FEIN):
_____________________________________
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EXHIBIT ▇-▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
1
EXHIBIT ▇-▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
1
EXHIBIT A-3
OUTLINE AND LOCATION OF FIRST MUST-TAKE SPACE
1
EXHIBIT ▇-▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ OFFERING SPACE
1
EXHIBIT A-5
OUTLINE AND LOCATION OF ATM/NIGHT DEPOSITORY AREA
1
EXHIBIT B
EXPENSES AND TAXES
This Exhibit is attached to and made a part of the Lease by and between OR-BF
PLAZA LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Landlord") and
UMPQUA BANK, AN OREGON STATE CHARTERED BANK ("Tenant") for space in the Building
located at One SW Columbia, Portland, Oregon.
1. PAYMENTS.
1.01 Tenant shall pay Tenant's Pro Rata Share of the amount, if any, by
which Expenses (defined below) for each calendar year during the Term exceed
Expenses for the Base Year (the "EXPENSE EXCESS") and also the amount, if any,
by which Taxes (defined below) for each calendar year during the Term exceed
Taxes for the Base Year (the "TAX EXCESS"). If Expenses or Taxes in any calendar
year decrease below the amount of Expenses or Taxes for the Base Year, Tenant's
Pro Rata Share of Expenses or Taxes, as the case may be, for that calendar year
shall be $0. On or about January 1 of each calendar year, Landlord shall provide
Tenant with a good faith estimate of the Expense Excess and of the Tax Excess
for each calendar year during the Term. On or before the first day of each
month, Tenant shall pay to Landlord a monthly installment equal to one-twelfth
of Tenant's Pro Rata Share of Landlord's estimate of both the Expense Excess and
Tax Excess. If Landlord determines that its good faith estimate of the Expense
Excess or of the Tax Excess was incorrect by a material amount, Landlord may, no
more often than twice per year, provide Tenant with a revised estimate, but not
more often than twice per calendar year. After its receipt of a revised
estimate, Tenant will pay to Landlord any reconciliation payment necessary to
account for any underpayment of Expense Excess or Tax Excess by Tenant during
such calendar year (or Landlord will credit against Rent next due and payable
under the Lease the amount of any year to date overpayment of Expense Excess or
Tax Excess and thereafter Tenant's monthly payments shall be based upon the
revised estimate. If Landlord does not provide Tenant with an estimate of the
Expense Excess or the Tax Excess by January 1 of a calendar year, Tenant shall
continue to pay monthly installments based on the previous year's estimate(s)
until Landlord provides Tenant with the new estimate.
1.02 As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses and
Expense Excess and the actual Taxes and Tax Excess for the prior calendar year
("Landlord's Statement"). Landlord shall use reasonable efforts to furnish
Landlord's Statement on or before June 1 of the calendar year immediately
following the calendar year to which the statement applies. If the estimated
Expense Excess or estimated Tax Excess for the prior calendar year is more than
the actual Expense Excess or actual Tax Excess, as the case may be, for the
prior calendar year, Landlord shall either provide Tenant with a refund or apply
any overpayment by Tenant against Additional Rent due or next becoming due,
provided if the Term expires before the determination of the overpayment,
Landlord shall refund any overpayment to Tenant after first deducting the amount
of Rent due. If the estimated Expense Excess or estimated Tax Excess for the
prior calendar year is less than the actual Expense Excess or actual Tax Excess,
as the case may be, for such prior year, Tenant shall pay Landlord, within 30
days after its receipt of the statement of Expenses or Taxes, any underpayment
for the prior calendar year.
2. EXPENSES.
2.01 "EXPENSES" means all costs and expenses incurred in each calendar
year in connection with operating, maintaining, repairing, and managing the
Building and the Property. Expenses include, without limitation: (a) all labor
and labor related costs, including wages, salaries, bonuses, taxes, insurance,
uniforms, training, retirement plans, pension plans and other employee benefits;
(b) management fees, however, in no event shall the management fees for the
Building (expressed as a percentage of gross receipts for the Building) exceed
the prevailing market management fees (expressed as a percentage of gross
receipts), plus 1% of such gross receipts, for comparable third party management
companies offering comparable management services in office buildings similar to
the Building in class, size, age and location; (c) the cost of equipping,
staffing and operating an on-site and/or off-site management office for the
Building, provided if the management office services one or more other buildings
or properties, the shared costs and expenses of equipping, staffing and
operating such management office(s) shall be equitably prorated and apportioned
between the Building and the other buildings or properties; (d) accounting
costs; (e) the cost of services; (f) rental and purchase cost of parts,
supplies, tools and equipment; (g) insurance premiums and deductibles; (h)
electricity, gas and other utility costs; and (i) the amortized cost of capital
improvements (as
1
distinguished from replacement parts or components installed in the ordinary
course of business) made subsequent to the Base Year which are: (1) performed
primarily to reduce current or future operating expense costs, upgrade Building
security or otherwise improve the operating efficiency of the Property; or (2)
required to comply with any Laws that are enacted, or first interpreted to apply
to the Property, after the date of this Lease. The cost of capital improvements
shall be amortized by Landlord over the lesser of the Payback Period (defined
below) or the useful life of the capital improvement as reasonably determined by
Landlord. The amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate paid (or which would be paid) by
Landlord on any funds borrowed for such expenditures from an unaffiliated
third-party financial institution (not to materially exceed the market rate of
interest consistently paid on such borrowed funds for such purposes). "PAYBACK
PERIOD" means the reasonably estimated period of time that it takes for the cost
savings resulting from a capital improvement to equal the total cost of the
capital improvement. Landlord, by itself or through an affiliate, shall have the
right to directly perform, provide and be compensated for any services under
this Lease. If Landlord incurs Expenses for the Building or Property together
with one or more other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared costs and
expenses shall be equitably prorated and apportioned between the Building and
Property and the other buildings or properties.
2.02 Expenses shall not include:
(a) the cost of capital improvements (except as set forth above);
(b) depreciation;
(c) principal payments of mortgage and other non-operating debts
of Landlord;
(d) lease concessions, rental abatements and construction
allowances granted to specific tenants;
(e) costs incurred in connection with the sale, financing or
refinancing of the Building;
(f) fines, interest and penalties incurred due to the late payment
of Taxes or Expenses;
(g) organizational expenses associated with the creation and
operation of the entity which constitutes Landlord;
(h) any penalties or damages that Landlord pays to Tenant under
this Lease or to other tenants in the Building under their
respective leases;
(i) the costs of operating any parking facility serving the
Building to the extent covered by parking revenues;
(j) management fees in excess of the levels described in Section
2.01(b) above;
(k) interest (except as provided above for the amortization of
capital improvements);
(l) amortization and interest arising from mortgages, deeds of
trust, similar security instruments and other non-operating
debts of Landlord.
(m) costs in connection with leasing space in the Building,
including brokerage commissions; lease concessions, including
rental abatements, the cost of tenant installations and
decorations incurred in connection with preparing space for
any Building tenant and construction allowances, granted to
specific tenants as well as the cost (including imputed rent)
of any leasing office;
(n) fixed or other rent under ground leases, master leases or
other instruments, if any, having superior title rights to
this Lease;
(o) wages, salaries and benefits paid to any persons above the
level of general manager;
2
(p) any penalties or damages that Landlord pays to Tenant under
this Lease or to other tenants in the Building under their
respective leases (as opposed to the cost of performing
Landlord's obligations under such leases);
(q) legal, accounting, court and other fees and expenses incurred:
(i) in disputes with tenants, prospective tenants or other
occupants of the Building (including fees incurred in any
tenant's bankruptcy proceedings), Building employees,
management agents or leasing agents; (ii) in disputes with
purchasers, prospective purchasers, mortgages or prospective
mortgages of the Building or the Property, or persons or
entities owning an interest in Landlord or any part of the
Building or the Property; and (iii) in actions or
documentation in connection with the negotiation, review and
preparation of leases, contracts of sale, mortgages, deeds of
trust or other security instruments, termination of leases or
other occupancy agreements, and the sublease or assignment of
other Building tenants' leases;
(r) any increase (by penalty or interest or similar charge) in
utility bills and other costs incurred as a result of Landlord
or its agent failing to make such payments when due;
(s) costs that are reimbursed out of insurance, warranty or
condemnation proceedings or from any other source for which
Landlord actually receives reimbursement from any source other
than pursuant to a fixed expense escalation clause in tenant
leases;
(t) fines, penalties and/or legal, accounting, court and other
fees and expenses incurred as a result of violation by
Landlord of any applicable Laws (as determined by written
admission, stipulation, final judgment or arbitration award).
(u) sums (other than management fees, it being agreed that the
management fees included in Expenses are as described in
clause (b) of Section 2.01 above) paid to subsidiaries or
other affiliates of Landlord for services on or to the
Property, Building and/or Premises, but only to the extent
that the costs of such services materially exceed the
competitive cost for such services rendered by persons or
entities of similar skill, competence and experience.
(v) appraisal, advertising, public relations and promotional
expenses in connection with the leasing, financing or sale of
the Building and tenant retention efforts;
(w) costs incurred in connection with the removal, encapsulation
or other treatment of asbestos or any other Hazardous
Materials (as defined hereinafter and classified as such on
the Commencement Date) existing in the Premises as of the date
hereof. "Hazardous Materials" means any explosive or
radioactive materials, hazardous wastes, or hazardous
substances, including without limitation, asbestos containing
materials, PCB's, CFC's, or substances defined or regulated as
hazardous substances or hazardous materials in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601-9657
(and any similar successor laws or regulations); the Hazardous
Materials Transportation Act of 1975, 42 U.S.C. Section
1001-1012 (and any similar successor laws or regulations), the
Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6901-6987 (and any similar successor laws or
regulations); or any other Federal, State or local law,
ordinance or regulation defining, regulating, restricting or
otherwise governing the storage, use, generation, release or
disposal of Hazardous Materials, except to the extent such
handling, treatment, containing, removing or abating is
related to the ordinary general repair and maintenance of the
Building Common Areas or Property (for example, the removal of
and disposal of oil from Building machinery in the course of
typical building maintenance and not as a response to any
action of any tenant or occupant of the Building or release of
Hazardous Materials);
(x) any fines, penalties or interest resulting from the negligence
or willful misconduct (as determined by written admission,
stipulation, final judgment or arbitration award) of the
Landlord or its agents, contractors, or employees;
(y) contributions to political or charitable organizations;
3
(z) costs relating to another tenant's or occupant's space which
(A) were incurred in rendering any service or benefit to such
tenant that Landlord was not required, or were for a service
in excess of the service that the Landlord was required, to
provide Tenant hereunder and (B) were in excess of the
Building standard services then being provided by Landlord to
all tenants or other occupants in the Building, whether or not
such other tenant or occupant is actually charged therefor by
Landlord;
(aa) costs of repairing, replacing or otherwise correcting defects
in the initial construction of the Building or the parking
garage serving the Building;
(bb) the cost of services provided to other tenants which costs are
incorporated into such tenants' base rent, when Tenant is not
provided similar services on a similar basis; provided,
however, the fact that any tenant does not pay Expenses during
its base year shall not, for the purposes of this sentence,
mean that service costs that comprise Expenses are "included"
in that tenant's base rent; and
(cc) any item excluded from Taxes under this Lease.
2.03 If at any time during a calendar year the Building is not at least
95% occupied or Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building, Expenses shall be determined as if the
Building had been 95% occupied and Landlord had been supplying services to 95%
of the Rentable Square Footage of the Building. If Expenses for a calendar year
are determined as provided in the prior sentence, Expenses for the Base Year
shall also be determined in such manner. Notwithstanding the foregoing, Landlord
may calculate the extrapolation of Expenses under this Section based on 100%
occupancy and service so long as such percentage is used consistently for each
year of the Term (inclusive of the Base Year). The extrapolation of Expenses
under this Section shall be performed in accordance with the methodology
specified by the Building Owners and Managers Association, and only those
Expenses which vary with variations in the Building's occupancy levels will be
subject to adjustment as described herein.
3. "TAXES" shall mean: (a) all real property taxes and other assessments on
the Building and/or Property, including, but not limited to, gross receipts
taxes, assessments for special improvement districts and building improvement
districts, governmental charges, fees and assessments for police, fire, traffic
mitigation or other governmental service of purported benefit to the Property,
taxes and assessments levied in substitution or supplementation in whole or in
part of any such taxes and assessments and the Property's share of any real
estate taxes and assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Property; (b) all personal
property taxes for property that is owned by Landlord and used in connection
with the operation, maintenance and repair of the Property; (c) the applicable
Portland, Oregon business license fee (which is not based on Landlord's revenue)
and (d) all costs and fees incurred in connection with seeking reductions in any
tax liabilities described in (a), (b) and (c), including, without limitation,
any costs incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income, capital
levy, transfer, capital stock, gift, estate or inheritance tax. If a change in
Taxes is obtained for any year of the Term during which Tenant paid Tenant's Pro
Rata Share of any Tax Excess, then Taxes for that year will be retroactively
adjusted and Landlord shall provide Tenant with a credit, if any, based on the
adjustment. Likewise, if a change is obtained for Taxes for the Base Year, Taxes
for the Base Year shall be restated and the Tax Excess for all subsequent years
shall be recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata
Share of any such increase in the Tax Excess within 30 days after Tenant's
receipt of a statement from Landlord.
4. AUDIT RIGHTS.
4.01 Landlord grants to Tenant a right to inspect and/or audit Landlord's
books and records with respect to the Expenses and Taxes for the period covered
in a given Landlord's Statement, as follows: Tenant may, within one hundred
twenty (120) days after receiving Landlord's Statement, give Landlord written
notice ("Review Notice") that Tenant intends to review Landlord's records of the
Expenses and/or Taxes for that calendar year. Within a reasonable time after
receipt of the Review Notice, Landlord shall make all pertinent records
available for inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the office of the
Building, Tenant may either inspect the records at such other location or pay
for the reasonable cost of copying and shipping the records. If Tenant retains
an agent to review Landlord's records, the agent must be with a CPA
4
firm licensed to do business in the state or commonwealth where the Property is
located. Tenant shall be solely responsible for all costs, expenses and fees
incurred for the audit and any dispute resolution process, unless it is
determined (by the process set forth hereinafter) that Landlord overstated
Expenses or Taxes by more than four percent (4.0%) in total for such calendar
year in which case Landlord shall pay the Tenant's reasonable third-party fees
and expenses incurred in any dispute resolution procedure, and shall reimburse
to Tenant its reasonable third-party audit costs. Within ninety (90) days after
the records are made available to Tenant, Tenant shall have the right to give
Landlord written notice (an "Objection Notice") stating in reasonable detail any
objection to Landlord's Statement for the relevant year. If Tenant fails to give
Landlord an Objection Notice within the ninety (90) day period or fails to
provide Landlord with a Review Notice within the one hundred twenty (120) day
period described above, Tenant shall be deemed to have approved Landlord's
Statement and shall be barred from raising any claims regarding the Expenses and
Taxes for that year. If Tenant provides Landlord with a timely Objection Notice,
the parties shall use their good faith efforts to resolve such dispute within
thirty (30) days following Tenant's delivery of such Objection Notice to
Landlord. If Landlord and Tenant determine that Expenses for the calendar year
are less than reported, Landlord shall provide Tenant with a credit against the
next installment of Rent in the amount of the overpayment by Tenant until
exhausted, or if this Lease shall have expired or been terminated, any excess
shall be paid to Tenant by check within thirty (30) days after such expiration
or termination, less any amount retained by Landlord and deemed reasonably
necessary to cure any then-existing default on the part of Tenant (i.e., beyond
the giving of applicable notice and the passage of applicable grace periods);
such excess repayment obligation shall survive the expiration or earlier
termination of this Lease. Likewise, if Landlord and Tenant determine that
Expenses for the calendar year are greater than reported, Tenant shall pay
Landlord the amount of any underpayment within thirty (30) days. The records
obtained by Tenant shall be treated as confidential. In no event shall Tenant be
permitted to examine Landlord's records or to dispute any statement of Expenses
unless Tenant has paid and continues to pay all Rent when due.
4.02 If Landlord and Tenant, working together in good faith, are unable
within thirty (30) days following Landlord's receipt of a timely Objection
Notice from Tenant to resolve the discrepancy between Landlord's Statement and
Tenant's review and/or audit ("Discrepancy"), either party, by written notice
(the "Arbitration Notice") to the other within ten (10) Business Days after the
expiration of such thirty (30) day period, shall have the right to have the
Discrepancy determined by binding arbitration in accordance with the procedures
set forth below. If Landlord and Tenant cannot agree upon the resolution of the
Discrepancy and neither party elects to invoke its right of arbitration,
Tenant's Objection Notice shall be deemed to be null and void and of no further
force and effect. If the right of arbitration is invoked, Landlord and Tenant,
within ten (10) Business Days after the date of the Arbitration Notice, shall
each simultaneously submit to the other, in a sealed envelope, its good faith
analysis and resolution of the Discrepancy (collectively referred to as the
"Proposed Discrepancy Resolutions"). If the higher of such Proposed Discrepancy
Resolutions is not more than one hundred five percent (105%) of the lower of
such Proposed Discrepancy Resolutions, then the resolution of the Discrepancy
shall be the average of the two Proposed Discrepancy Resolutions. If the
Discrepancy is not resolved by the exchange of the proposed Discrepancy
Resolutions, Landlord and Tenant, within seven (7) days of the exchange of the
Proposed Discrepancy Resolutions, shall select as an arbitrator a mutually
acceptable licensed CPA firm with experience in and familiarity with general
industry practice with respect to the operation of and accounting for a first
class office building in Portland, Oregon, and whose compensation shall in no
way be contingent upon or correspond to the financing impact on Landlord or
Tenant resulting from the review and/or audit. If the parties cannot agree on an
arbitrator, then within a second period of seven (7) days, each shall select an
independent licensed CPA firm meeting the aforementioned criteria, and within a
third period of seven (7) days, the two appointed licensed CPA firms shall
select a third licensed CPA firm meeting the aforementioned criteria, and the
third licensed CPA firm shall determine the resolution of the Discrepancy. If
one party shall fail to make such an appointment within said second seven (7)
day period, then the licensed CPA firm chosen by the other party shall be the
sole arbitrator. If the two appointed licensed CPA firms are unable to agree
upon such third licensed CPA firm, then either party, on behalf of both, may
request appointment of such a qualified licensed CPA firm by the then Chief
Judge of the United States District Court having jurisdiction over the Building,
acting in his private non-judicial capacity. Request for appointment shall be
made in writing with a copy given to the other party. Each party agrees that
said Judge shall have the power to make the appointment. Once the arbitrator has
been selected as provided for above, then, as soon thereafter as practicable but
in any case within fourteen (14) days, the arbitrator shall select one of the
two Proposed Discrepancy Resolutions submitted by the Landlord and Tenant, which
must be the one that is closer to the resolution of the Discrepancy as
determined by the arbitrator. The selection of the arbitrator shall be rendered
in writing to both Landlord and
5
Tenant and shall be final and binding upon them. If the arbitrator believes that
expert advice would materially assist him, he may retain one or more qualified
persons to provide such expert advice. Any fees of any counsel or experts
engaged directly by Landlord or Tenant, however, shall be borne by the party
retaining such counsel or expert.
6
EXHIBIT C
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and between OR-BF
PLAZA LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Landlord") and
UMPQUA BANK, AN OREGON STATE CHARTERED BANK ("Tenant") for space in the Building
located at ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
As used in this Workletter, the "Premises" shall be deemed to mean the Premises,
as initially defined in the attached Lease, but inclusive of Suite 150, as
described in Section 1 of EXHIBIT F attached to the Lease, and the First Must
Take Space, as described in Section 5 of EXHIBIT F attached to the Lease.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, following the delivery of the Premises by Landlord and the
full and final execution and delivery of the Lease to which this
Exhibit is attached and all Suite 150 prepaid rental and security
deposits required under such agreement, shall have the right to
perform alterations and improvements in the Premises (the "INITIAL
ALTERATIONS"). Notwithstanding the foregoing, Tenant and its
contractors shall not have the right to perform Initial Alterations
in the Premises unless and until Tenant has complied with all of the
terms and conditions of Section 9 of the Lease, including, without
limitation, approval by Landlord of the final plans for the Initial
Alterations and the contractors to be retained by Tenant to perform
such Initial Alterations. Tenant shall be responsible for all
elements of the design of Tenant's plans (including, without
limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the
premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of Tenant's plans shall in no
event relieve Tenant of the responsibility for such design.
Landlord's approval of the contractors to perform the Initial
Alterations shall not be unreasonably withheld. The parties agree
that Landlord's approval of the general contractor to perform the
Initial Alterations shall not be considered to be unreasonably
withheld if any such general contractor (i) does not have trade
references reasonably acceptable to Landlord, (ii) does not maintain
insurance as required pursuant to the terms of this Lease, (iii)
does not have the ability to be bonded for the work in an amount of
no less than 150% of the total estimated cost of the Initial
Alterations, (iv) does not provide current financial statements
reasonably acceptable to Landlord, or (v) is not licensed as a
contractor in the state/municipality in which the Premises is
located. Tenant acknowledges the foregoing is not intended to be an
exclusive list of the reasons why Landlord may reasonably withhold
its consent to a general contractor.
B. 1. Provided Tenant is not in default, Landlord agrees to
contribute the sum of $1,270,440.00 (i.e., $30.00 per rentable
square foot of the Premises), inclusive of the First Must Take
Space (the "ALLOWANCE") toward the cost of performing the
Initial Alterations in preparation of Tenant's occupancy of
the Premises. The Allowance may only be used for the cost of
preparing design and construction documents and mechanical and
electrical plans for the Initial Alterations and for hard
costs (including the installation of Cable) in connection with
the Initial Alterations. The Allowance may be allocated by
Tenant towards the cost of Initial Alterations in any portion
of the Premises (i.e., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ or the
First Must Take Space) in such manner as Tenant elects.
2. The Allowance shall be paid to Tenant (or, at Landlord's
option, if necessary to remove a lien, to the order of the
general contractor that performs the Initial Alterations) in
periodic disbursements within 30 days after receipt of the
following documentation: (i) an application for payment and
sworn statement of contractor substantially in the form of AIA
Document G-702 (or such other substantially similar form
acceptable to Landlord in Landlord's reasonable discretion)
covering all work for which disbursement is to be made to a
date specified therein; (ii) a certification from an AIA
architect substantially in the form of the Architect's
Certificate for Payment which is located on AIA Document G702,
Application and Certificate of Payment (or such other
substantially similar
1
form acceptable to Landlord in Landlord's reasonable
discretion); (iii) Contractor's, subcontractor's and material
supplier's waivers of liens which shall cover all Initial
Alterations for which disbursement is being requested and all
other statements and forms required for compliance with the
mechanics' lien laws of the state in which the Premises is
located, together with all such invoices, contracts, or other
supporting data as Landlord or Landlord's Mortgagee may
reasonably require; (iv) [INTENTIONALLY OMITTED]; (v) plans
and specifications for the Initial Alterations, together with
a certificate from an AIA architect that such plans and
specifications comply in all material respects with all laws
affecting the Building, Property and Premises; (vi) copies of
all construction contracts for the Initial Alterations,
together with copies of all change orders, if any; and (vii) a
request to disburse from Tenant containing an approval by
Tenant of the work done and a good faith estimate of the cost
to complete the Initial Alterations. Upon completion of the
Initial Alterations, and prior to final disbursement of the
Allowance, Tenant shall furnish Landlord with: (1) general
contractor and architect's completion affidavits, (2) full and
final waivers of lien, (3) receipted bills covering all labor
and materials expended and used, (4) as-built plans of the
Initial Alterations, and (5) the certification of Tenant and
its architect that the Initial Alterations have been installed
in a good and workmanlike manner in accordance with the
approved plans, and in accordance with applicable Laws. In no
event shall Landlord be required to disburse the Allowance
more than one time per month. If the Initial Alterations
exceed the Allowance, Tenant shall be entitled to the
Allowance in accordance with the terms hereof, but each
individual disbursement of the Allowance shall be disbursed in
the proportion that the Allowance bears to the total cost for
the Initial Alterations, less the 10% retainage referenced
above. Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to disburse any portion of the
Allowance during the continuance of an uncured default under
the Lease, and Landlord's obligation to disburse shall only
resume when and if such default is cured.
C. If the cost of the Initial Alterations is less than the Allowance,
Tenant, provided it is not in default under the Lease, shall be
entitled to apply such unused Allowance toward (i) the cost of
moving from its existing location(s) into the Premises, as well as
(ii) the cost of telephone, data and computer cabling, consulting
fees, acquisition and installation and/ or moving of Tenant's
furniture, trade fixtures and equipment and other personal property
into the Premises (collectively, "Moving and Relocation Costs").
Such portion of the unused Allowance which Tenant is entitled to
apply toward its Moving and Relocation Costs is referred to herein
as the "Moving Allowance". Any unused portion of the Allowance that
is in excess of the Moving Allowance shall accrue to the sole
benefit of Landlord, it being understood and agreed that Tenant
shall not be entitled to receive any credit or abatement in
connection therewith. Landlord shall disburse the Moving Allowance,
or applicable portion thereof, to Tenant within forty-five (45) days
after receipt of paid invoices from Tenant with respect to Tenant's
actual Moving and Relocation Costs.
D. Landlord, at Landlord's cost (not to be applied against the
Allowance), agrees that Landlord will demolish the existing ceiling
system on both the 12th and 14th floors of the Building (in
accordance with a construction schedule agreed upon by and between
Landlord and Tenant) and replace the same with a Building-standard
ceiling system, including Building-standard lights and all necessary
seismic upgrades to the sprinkler and HVAC supports (the "Landlord
Work"). The estimated cost of such work, per rentable square foot,
is as follows:
COST PER
ITEM OF WORK RENTABLE SQUARE FOOT
------------------ --------------------
Ceiling demolition $0.75
Seismic Costs $1.50
Lights $1.10
Ceiling $2.25
-----
Total $5.60
=====
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Notwithstanding the foregoing, Tenant shall have the right, to be
exercised by written notice delivered to Landlord, to elect to
install an above-standard ceiling as opposed to a Building-standard
ceiling, as described above, in the 12th and/or the 14th floors. In
such event, Landlord will provide a credit, to be added to the
Allowance, in the amount of the cost of the Building-standard
ceiling system which Landlord would have otherwise constructed on
such floor(s), which credit is estimated to be $4.10 per rentable
square foot. Additionally, in any such event, Landlord will remain
responsible for the performance of seismic upgrades to the sprinkler
and HVAC supports in connection with such ceiling replacement. As
part of the Landlord Work, Landlord will retain a mutually
acceptable asbestos consultant (tentatively PBS Environmental of
Portland) to survey the 12th and 14th floors of the Building during
the course of performance of the Landlord Work in order to determine
whether such floor(s) contain asbestos containing construction (or
other) materials; said consultant will also survey Suite 100 (such
survey of the 12th and 14th floors and Suite 100 being referred to
herein as the "Asbestos Survey"). The cost of the Asbestos Survey
shall be borne by Tenant; provided, Tenant shall be consulted on its
scope and design. The results of the Asbestos Survey will be made
available by Landlord to Tenant provided Tenant executes a
confidentiality agreement in form and substance reasonably
acceptable to Landlord. If the results of the Asbestos Survey show
that there is asbestos containing construction (or other) material
in or on the 12th or 14th floors, or in ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, at
Landlord's cost (not to be deducted from the Allowance) shall, as
part of the Landlord Work, ▇▇▇▇▇ or encapsulate such asbestos
consistent with applicable Laws (documentation of such work shall be
available for Tenant's review in the Building' management office).
Additionally, Landlord agrees that at Tenant's request, Landlord
will perform a similar Asbestos Survey at Tenant's cost and, will,
at Landlord's cost, ▇▇▇▇▇ or encapsulate any asbestos containing
construction (or other) materials, with respect to (i) the Second
Must-Take Space (defined in Section 6 of Exhibit F to the Lease)
prior to Tenant's occupancy of such space, (ii) the Suite 1900
Offering Space (defined in Section 7.A of Exhibit F to the Lease) if
Tenant exercises its Right of First Offer with respect to Suite 1900
and (iii) the "Offering Space", if Tenant exercises its Second Right
of First Offer pursuant to Section 7.B of Exhibit F to the Lease.
G. Notwithstanding any of the foregoing provisions of this Exhibit C or
the Lease to the contrary:
(i) If, as a condition to the issuance of a permit for the
construction of the Initial Alterations to be performed by
Tenant within Suites 100 and 1200 (12th floor), the City of
Portland ("City") requires that the Building undergo seismic
retrofit or upgrade work on a "building-wide" or other
"outside-the-Premises" basis, as opposed to or in addition to
the seismic ceiling work described above (and provided such
requirement is not triggered by a specific type of
non-standard improvement proposed by Tenant, such as the
installation of a vault, as opposed to general office
construction), the parties agree to cooperate in good faith in
an effort to obtain a waiver of such requirement from City and
Tenant agrees to reasonably cooperate with Landlord, in making
such revisions to Tenant's plans as may be reasonably
necessary to achieve such waiver. If, however, City has not
agreed to waive such condition within thirty (30) days
following the parties' request of waiver of such requirement
and the cost of such seismic retrofit or upgrade work exceeds
$200,000, Landlord may terminate the Lease by written notice
to Tenant, such notice to be given within ten (10) business
days following the expiration of such thirty (30) day period.
If Landlord does not exercise such termination option,
Landlord will be deemed to have agreed to assume the
responsibility for any such "building-wide" or other "outside
the Premises" seismic upgrade work so required by City as a
condition to the issuance of such construction permit. The
cost of such work shall not be included in Expenses pursuant
to Section 2 of Exhibit B.
(ii) If, subsequent to the completion of the Initial Alterations in
Suites 100 and 1200, as a condition to the issuance of a
permit for the construction of Tenant's Alterations to the
14th Floor, the Second Must-Take Space, the Suite 1900
Offering Space, or the other Offering Space, City requires
pursuant to Current Code (defined below) that the Building
undergo
3
seismic retrofit or upgrade work on a "building-wide" or other
"outside-the-Premises" basis, as opposed to or in addition to
the seismic ceiling work described above (again, provided such
requirement is not triggered by a specific, non-standard
improvement proposed by Tenant), then the parties agree to
cooperate in good faith in an effort to obtain a waiver of
such requirement from City and Tenant agrees to reasonably
cooperate with Landlord, in making such revisions to Tenant's
plans as may be reasonably necessary to achieve such waiver.
If, however, City has not agreed to waive such condition
within thirty (30) days following the parties' request of
waiver of such requirement, Landlord shall be deemed to have
agreed to assume the responsibility for any such
"building-wide" or "outside-the-Premises" seismic upgrade work
so required by City as a condition to the issuance of such
construction permit. The cost of such work shall not be
included in Expenses pursuant to Section 2 of Exhibit B.
(iii) Further, if at any time during the Term or any extension
thereof, City or other governmental jurisdiction requires that
the Building undergo seismic retrofit or upgrade work on a
"building-wide" or other "outside-the-Premises" basis and such
retrofit or upgrade is imposed to bring the Building closer to
or in full compliance with Zone III or current State of Oregon
Structural Specialty Code or other similar earthquake
standards currently (circa December 1, 2004) applicable to new
buildings in the City ("Current Code") and if the performance
of such retrofit or upgrade would otherwise be properly
included in Expenses pursuant to Section 2 of Exhibit B,
recoverable from Tenant albeit on an amortized basis with
interest, such recovery or pass through of such cost
(including imputed or actual interest thereon) from Tenant
shall not exceed (i.e., shall be capped at) $1.00 per square
foot of the Premises per year; provided, however that no such
cap shall be imposed on the pass through of costs as Expenses
for seismic work to the extent the work is required to comply
with laws, rules or regulations first enacted or interpreted
above and beyond the Current Code.
H. Except as expressly set forth herein, this Exhibit shall not be
deemed applicable to any additional space added to the Premises at
any time or from time to time, whether by any options under the
Lease or otherwise (with the exception of the First Must-Take
Space), or to any portion of the original Premises or any additions
to the Premises in the event of a renewal or extension of the
original Term of the Lease, whether by any options under the Lease
or otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
I. In addition to the Landlord Work, Landlord agrees to (i) make
certain cosmetic upgrades to the Building's parking garage (i.e.,
clean garage surfaces and paint vertical surfaces and add additional
lighting where necessary) and (ii) upgrade the finishes within the
existing freight elevator which accesses the plaza level space of
the Building so as to more readily approximate the finishes in a
passenger elevator. Upgrades to the entrance area of the parking
garage and the freight elevator shall be completed prior to Tenant's
occupancy of the Premises (which the parties acknowledge is expected
to occur later than the Commencement Date). Landlord's cosmetic
upgrades of the lower levels of the Building's parking garage shall
be completed no later than June 30, 2006. Additionally, Landlord
agrees to upgrade the external facade above the entrances on the
ground floor of the Building by painting the existing metal
spandrels to match the existing exterior finishes and by installing
thereon brass lettering identifying Tenant (such lettering to be
supplied by Tenant at Tenant's cost and approved by Landlord);
Landlord shall meet and confer with Tenant in good faith, in an
effort to reach a mutually acceptable design for such facade
upgrades.
4
EXHIBIT D
COMMENCEMENT LETTER
(EXAMPLE)
Date ______________________
Tenant ______________________
Address ______________________
______________________
______________________
Re: Commencement Letter with respect to that certain Lease dated as of the
_____ day of __________, _____, by and between OR-BF PLAZA LIMITED
PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP, as Landlord, and UMPQUA BANK,
AN OREGON STATE CHARTERED BANK, as Tenant, for Premises initially
containing 25,184 rentable square feet on the 1st and 12th floors of the
Building, designated as Suite 100 and 1200, respectively, and subsequently
to include additional space on the 1st floor consisting of 4,303 rentable
square feet and designated as Suite 150 located at ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date with respect to the ___________ space is
________________________;
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
Sincerely,
________________________
Authorized Signatory
Agreed and Accepted:
Tenant: ______________________
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
1
EXHIBIT E
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking facilities (if any), the Property and the
appurtenances. In the event of a conflict between the following rules and
regulations and the remainder of the terms of the Lease, the remainder of the
terms of the Lease shall control. Capitalized terms have the same meaning as
defined in the Lease. If there is a conflict between this Lease and any rules
and regulations enacted after the date of this Lease, the terms of this Lease
shall control. The rules and regulations shall be generally applicable, and
generally applied in the same manner, to all tenants of the Building.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas
or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees shall be paid for by Tenant and Landlord shall not be responsible
for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such color,
size, style and in such places as are first approved in writing by
Landlord. Landlord will not unreasonably withhold its approval of Umpqua
Bank's standard design. All tenant identification and suite numbers at the
entrance to the Premises shall be installed by Landlord, at Tenant's cost
and expense, using the standard graphics for the Building. Except in
connection with the hanging of lightweight pictures and wall decorations,
no nails, hooks or screws shall be inserted into any part of the Premises
or Building except by the Building maintenance personnel without
Landlord's prior approval, which approval shall not be unreasonably
withheld.
4. Landlord shall provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Subject to the provisions of Article 10 of the Lease regarding any Secured
Area, Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent, which consent shall not
be unreasonably withheld, and Landlord shall have the right at all times
to retain and use keys or other access codes or devices to all locks
within and into the Premises. A reasonable number of keys to the locks on
the entry doors in the Premises shall be furnished by Landlord to Tenant
at Tenant's cost and Tenant shall not make any duplicate keys. All keys
shall be returned to Landlord at the expiration or early termination of
the Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval, which approval shall not be unreasonably withheld, and shall be
required to comply with Landlord's standard rules, regulations, policies
and procedures, which may be revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours reasonably designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the activity,
which approval shall not be unreasonably withheld. If approved by
Landlord, the activity shall be under the supervision of Landlord and
performed in the manner required by Landlord. Tenant shall assume all risk
for damage to articles moved and injury to any persons resulting from the
activity. If equipment, property, or personnel of Landlord or of any other
party is damaged or injured as a result of or in connection with the
activity, Tenant shall be solely liable for any resulting damage, loss or
injury.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises, which approval
shall not be unreasonably
1
withheld. Damage to the Building by the installation, maintenance,
operation, existence or removal of Tenant's Property shall be repaired at
Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) without
the prior written approval of Landlord (not to be unreasonably withheld)
solicit business or distribute or cause to be distributed, in any portion
of the Building, handbills, promotional materials or other advertising; or
(3) conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance. Notwithstanding the
provisions of clause (2) above, Landlord acknowledges that Tenant desires
to have a "brand specific" presence in the lobby of the Building from time
to time. Tenant shall present to Landlord, for Landlord's approval,
detailed descriptions of any proposed activity to be carried out by Tenant
within the Building lobby (including a description of any physical
placement Tenant desires to install), and Landlord shall, in good faith,
diligently cooperate with Tenant in attempting to arrive at a mutually
acceptable set of guidelines with respect to the same. Landlord agrees to
promptly review and confer with Tenant with respect to any such proposed
submission.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property, except
for those substances as are typically found in similar premises used for
general office purposes and are being used by Tenant in a safe manner and
in accordance with all applicable Laws. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of, within or about the Premises or any other portion
of the Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or subsequently considered toxic or hazardous under
the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental Law which may now or later be in effect. Tenant shall comply
with all Laws pertaining to and governing the use of these materials by
Tenant and shall remain solely liable for the costs of abatement and
removal.
13. Tenant shall not use, or permit any part of the Premises to be used for
lodging, sleeping or for any illegal purpose.
14. Tenant shall not knowingly take any action which would violate Landlord's
labor contracts or which would cause a work stoppage, picketing, labor
disruption or dispute or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person
lawfully in the Building ("LABOR Disruption"). If a Labor Dispute occurs
due to Tenant's acts or omissions, Tenant shall take the actions necessary
to resolve the Labor Disruption, and shall have pickets removed and, at
the request of Landlord, immediately terminate any work in the Premises
that gave rise to the Labor Disruption, until Landlord gives its written
consent for the work to resume. Tenant shall have no claim for damages
against Landlord or any of the Landlord Related Parties nor shall the
Commencement Date of the Term be extended as a result of the above
actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electric or gas heating devices, without Landlord's prior written
consent.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees and invitees.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by Landlord.
2
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building and Property, its occupants, entry,
use and contents. Tenant, its agents, employees, contractors, guests and
invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building by Tenant in any publicity of Tenant; for so long as the Tenant
is Umpqua Bank and the Building is named after Umpqua Bank, this Rule No.
19 shall not apply. Upon written notice from Landlord, Tenant shall
refrain from and discontinue such publicity immediately.
20. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless a portion of the
Common Areas have been declared a designated smoking area by Landlord, nor
shall the above parties allow smoke from the Premises to emanate into the
Common Areas or any other part of the Building. Landlord shall have the
right to designate the Building (including the Premises) as a non-smoking
building.
21. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
22. Deliveries to and from the Premises shall be made only at the times in the
areas and through the entrances and exits reasonably designated by
Landlord. Tenant shall not make deliveries to or from the Premises in a
manner that might interfere with the use by any other tenant of its
premises or of the Common Areas, any pedestrian use, or any use which is
inconsistent with good business practice.
23. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
3
EXHIBIT F
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease by and between OR-BF
PLAZA LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Landlord") and
UMPQUA BANK, AN OREGON STATE CHARTERED BANK ("Tenant") for space in the Building
located at One SW Columbia, Portland, Oregon.
1. EXISTING LEASES.
A. Generally. The parties acknowledge that Tenant currently (as of the
date of this Lease) occupy space in the Building as follows:
1. Suite 150 Lease. Pursuant to the provisions of that certain
Lease dated as of April 5, 1999 (the "Suite 150 Lease"),
Landlord (as successor in interest to ▇▇▇▇▇▇▇ Properties,
L.P.) leases to Tenant (as successor in interest to Centennial
Bancorp) certain space located on the first (1st) floor of the
Building, consisting of 5,303 rentable square feet and
designated as ▇▇▇▇▇ ▇▇▇ ("▇▇▇▇▇ ▇▇▇"). Tenant occupies Suite
150 pursuant to the Suite 150 Lease, Tenant occupies Suite 150
for the purpose of transacting commercial and retail banking
services. The Suite 150 Lease is scheduled to expire, unless
sooner terminated pursuant to the terms of the Suite 150
Lease, as of June 30, 2009.
2. Suite 900 Lease. Pursuant to the provisions of that certain
Lease dated as of April 5, 1999, as said Lease has been
amended by a First Amendment dated as of June 18, 1999 (the
"Suite 900 Lease"), Landlord (as successor in interest to
▇▇▇▇▇▇▇ Properties, L.P.) leases to Tenant (as successor in
interest to Centennial Bank) certain space located on the
ninth (9th) floor of the Building, consisting of approximately
6,588 rentable square feet and designated as ▇▇▇▇▇ ▇▇▇ ("▇▇▇▇▇
▇▇▇").
B. Addition of Suite 150. Effective as of July 1, 2009 (the "Suite 150
Expansion Effective Date"), Suite 150 shall be added to and become a
part of the Premises. From and after the Suite 150 Expansion
Effective Date, the Premises (as then expanded to include the First
Must-Take Space, as well as any other additional space added to the
Premises pursuant to the provisions of Section 7 below) and the
Suite 150, collectively, shall be deemed the "Premises", as defined
in the Lease. The term for Suite 150 shall commence on the Suite 150
Expansion Effective Date and end on the Termination Date. Tenant's
occupancy of Suite 150 from and after the Suite 150 Expansion
Effective Date, shall be subject to all the terms and conditions of
the Lease except as expressly modified in this Section 1(b), it
being acknowledged, however, that Tenant shall not be entitled to
receive any allowances, abatements or other financial concessions
granted with respect to the original Premises unless such
concessions are expressly provided for herein with respect to Suite
150.
1. Base Rent for Suite 150. From and after the Suite 150
Expansion Effective Date, the schedule of Base Rent payable
with respect to Suite 150 for the balance of the Term shall be
the following:
ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
------------------------------------ --------------- ----------
JULY 1, 2009 - NOVEMBER 30, 2010 $24.34 $10,756.25
DECEMBER 1, 2010 - NOVEMBER 30, 2012 $25.31 $11,184.91
DECEMBER 1, 2012 - NOVEMBER 30, 2014 $26.32 $11,631.25
DECEMBER 1, 2014 - NOVEMBER 30, 2016 $27.37 $12,095.26
2. Tenant's Pro Rata Share for Suite 150. From and after the
Suite 150 Expansion Effective Date, Tenant's Pro Rata Share
shall be increased by 1.9527% to reflect the addition to the
Premises of Suite 150.
3. Expenses and Taxes. For the period commencing with the Suite
150 Expansion Effective Date, Tenant shall pay for Tenant's
Pro Rata Share of Expenses and Taxes applicable to Suite 150
in accordance with the
1
terms of the Lease, and the Base Year with respect to Suite
150 shall be the same as the Base Year for the initial
Premises.
4. "As-Is" Acceptance. Tenant shall accept Suite 150 in its then
"as-is" condition, without any agreements, representations,
understandings or obligations on the part of Landlord to
perform any alterations, repairs or improvements therein.
5. Use. Effective as of the Suite 150 Expansion Effective Date:
(a) Use Generally. Section 1.11 of the Lease shall be
revised to read as follows:
"General office use and, with respect to Suite 150 only, the
operation of a retail banking facility; provided that, in no
event shall any portion of the Premises located on the 10th
floor of the Building, be used for the operation of a business
offering accounting services or consulting services, so long
as an existing (as of the date of this Lease) lessee's
prohibition on accounting services or consulting services on
the 10th floor of the Building survives."
(b) ATM. The following provisions shall be deemed added to
the Lease. Tenant shall have the right to maintain the
existing one (1) automatic teller machine ("ATM") and
one (1) night depository "NIGHT DEPOSITORY" in the
Building, accessible from the exterior of the Building
which ATM and Night Depository shall be subject to all
the terms and conditions of the Lease (including,
without limitation, the Guaranty), except as noted
below.
(i) ATM/Night Depository Area. The area (the "ATM /
NIGHT DEPOSITORY AREA") within 3 feet of the ATM
and Night Depository, as such ATM and Night
Depository are shown on EXHIBIT A-5, shall be
deemed to comprise a portion of the Premises, as
defined in the Lease, for the purposes of Tenant's
insurance obligations under section 14 of the
Lease.
(ii) Permitted Use. With respect to the ATM / Night
Depository Area only, the Permitted Use, as
defined in the Lease, is modified to mean the
operation of (a) an ATM: dispensing cash,
processing withdrawals, deposits, transfers and
advances, facilitating inquiries and requests
about a user's account, and such other
transactions as Landlord may permit in Landlord's
sole and absolute discretion, and for no other use
or purpose whatsoever, and (b) a Night Depository
accepting deposits.
(iii) As-Is Condition. Landlord leases the ATM / Night
Depository Area to Tenant and Tenant leases the
ATM / Night Depository Area from Landlord in as-is
condition and configuration. Tenant agrees that
Landlord has made no representations or warranties
about the ATM / Night Depository Area, including,
but not limited to representations about
installation, signage, utility connections and
availability (if applicable), and security.
(iv) Signage, Appearance. Signage for the ATM and/or
Night Depository, if any, shall be subject to
Landlord's prior approval in accordance with
Section (x) below. Tenant shall keep the ATM and
Night Depository in good operating order, and
shall at all times keep the ATM, Night Depository,
and ATM / Night Depository Area in a neat, clean
and sanitary condition to the reasonable
satisfaction of Landlord.
(v) Electrical Services. Landlord agrees to furnish
Tenant electricity to the ATM / Night Depository
Area only in accordance with, and subject to the
terms and conditions
2
in the Lease. Landlord's failure to furnish, or
any interruption or termination of services due
to the application of Laws, the failure of any
equipment, the performance of repairs,
improvements or alterations, or the occurrence of
any event or cause beyond the reasonable control
of Landlord shall not render Landlord liable to
Tenant, constitute a constructive eviction of
Tenant, give rise to an abatement of Rent nor
relieve Tenant from the obligation to fulfill any
covenant or agreement. Electricity used by Tenant
in the ATM / Night Depository Area shall, at
Landlord's option, be paid for by Tenant by
either a separate charge payable by Tenant to
Landlord within 30 days after billing by
Landlord, or by separate charge billed by the
applicable utility company and payable directly
by Tenant. Tenant's use of electrical service for
the ATM / Night Depository Area shall not exceed,
either in voltage, rated capacity, use beyond
Normal Business Hours or overall load, that which
Landlord deems to be standard for the Building.
(vi) Ownership of Improvement Repairs. All
improvements to the ATM and Night Depository in
the ATM / Night Depository Area shall be owned by
Tenant. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and
repairs to the ATM and Night Depository and shall
keep the same in good condition and repair.
Tenant shall not make alterations, additions or
improvements to the ATM / Night Depository Area
without first obtaining the written consent of
Landlord in accordance with Section 9.03 of the
Lease in each instance, which consent may be
withheld at Landlord's sole and absolute
discretion.
(vii) Indemnification. Except to the extent caused by
the negligence or willful misconduct of Landlord
or any Landlord Related Parties, Tenant shall
indemnify, defend and hold Landlord and Landlord
Related Parties harmless against and from all
Losses, which may be imposed upon, incurred by or
asserted against Landlord or any of the Landlord
Related Parties by any third party and arising
out of or in connection with any damage or injury
occurring as a result of or in connection with
the existence or use of the ATM or the Night
Depository.
(viii) Assignment and Subletting. Tenant shall not
effect a Transfer of the ATM / Night Depository
Area separate or apart from the Transfer of the
Premises, without the prior written consent of
Landlord, which consent may be withheld at
Landlord's sole and absolute discretion.
(ix) Surrender. At the expiration or earlier
termination of the Lease or Tenant's right of
possession, or in the event Tenant elects to
sooner surrender the ATM / Night Depository Area,
Tenant, at Tenant's sole cost, shall remove the
ATM structure, the Night Depository structure,
its property and all other property from the ATM
/ Night Depository Area, and quit and surrender
the ATM / Night Depository Area to Landlord,
after first returning them to good order,
condition and repair to Landlord's reasonable
satisfaction, including, without limitation,
replacement of any glass panels removed from the
exterior wall of the Building/Premises as part of
the installation of the ATM and/or Night
Depository. If Tenant fails to do so within 30
days after written notice, (a) Landlord may deem
all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall
be deemed to be immediately vested in Landlord,
and (b) Landlord may perform such work as may be
required to return the ATM / Night
3
Depository area to such good order, condition and
repair at Tenant's expense.
(x) Signs and Advertising. Tenant shall not place or
permit to be placed on the exterior of the
Premises or the door, window or roof, within any
display window space or within 5 feet behind the
entry to the Premises or otherwise visible from
outside the Building or the Common Area, any sign,
decoration, lettering, advertising matter or
descriptive material without Landlord's prior
written approval, which shall not be unreasonably
withheld or delayed, except that Tenant may
utilize such material within the Premises on a
temporary basis to advertise special sales or
promotional events without Landlord's approval
provided that such material is professionally
made, in good taste and is not taped to any window
of the Premises. Tenant shall submit to Landlord
reasonably detailed drawings of its proposed signs
(other than such temporary signs described in the
preceding sentence) for review and approval by
Landlord prior to utilizing same. All signs,
awnings, canopies, decorations, lettering,
advertising matter or other items used by Tenant
shall conform to the standards of design, motif,
and decor established by Landlord for the Building
from time to time and shall be insured and
maintained at all times by Tenant in good
condition, operating order and repair. Flashing
signs, credit card signs and hand lettered signs
visible from outside the Building or the Common
Areas are prohibited. Landlord shall have the
right, without notice to Tenant and without any
liability for damage to the Premises reasonably
caused thereby, to remove any items displayed or
affixed in or to the Premises which Landlord
determines to be in violation of the provisions of
this section. If any damage is done to Tenant's
signs, Tenant shall commence to repair same within
5 days after such damage occurs, and upon Tenant's
failure to commence the repair work within said 5
day period and to diligently prosecute the same to
completion, Landlord may, after notice to Tenant,
repair such damage and Tenant shall pay Landlord,
as additional Rent upon demand, Landlord's costs
and expenses in connection therewith.
6. Parking. Upon the addition of Suite 150 to the Premises,
Tenant shall lease from Landlord an additional four (4)
Unreserved Spaces (defined in Section 2.(a) below).
C. Termination of Suite 900 Lease. Pursuant to the provisions of a
Lease Termination Agreement in the form of EXHIBIT I attached to the
Lease entered into concurrently with the parties' mutual execution
and delivery of this Lease, the Suite 900 Lease will be terminated
effective as of Tenant's occupancy of Suite 100.
2. PARKING.
A. During the initial Term, Tenant shall lease from Landlord, and
Landlord agrees to lease to Tenant, a total of ten (10) unreserved
parking spaces (the "Unreserved Spaces") and nine (9) reserved
spaces (the "Reserved Spaces") (the Unreserved Spaces and the
Reserved Spaces being collectively referred to herein as the
"Spaces") in the Building garage (the "Parking Facility") for the
use of Tenant and its employees; six (6) of the Reserved Spaces
shall be marked as reserved for Tenant's customers and will be
located near the entry to the Parking Facility, as described in
EXHIBIT F-1 attached hereto; three (3) of the Reserved Spaces will
be marked as reserved for Umpqua Bank (or successor thereto). Tenant
shall not have the right to lease or otherwise use more than the
number of reserved and unreserved Spaces set forth above. As
described in Sections 1.B.5 above, 5.B.5 and 6.B.5 below, as used
when Tenant occupies each of Suite 150, the First Must Take Space
and the Second Must Take Space (or any other additional Space in the
Building occupied by Tenant), Tenant will be
4
entitled to lease additional Spaces in the Parking Facility on the
basis of .75 Unreserved Spaces for each 1,000 rentable square foot
added to the Premises.
B. During the initial Term, Tenant shall pay to Landlord, as Additional
Rent in accordance with Section 4 of the Lease, the sum of (i)
$185.00 per month, plus applicable tax thereon, if any, for each
Unreserved Space and (ii) $225.00 per month, plus additional tax
therein, for each Reserved Space, as such rates may be adjusted from
time-to-time to reflect the then current rates for parking in the
Parking Facility. No deductions or allowances shall be made for days
when Tenant or any of its employees does not utilize the Parking
Facility or for Tenant utilizing less than all of the Spaces.
C. Except for Reserved Spaces and areas designated by Landlord for
reserved parking, all parking in the Parking Facility shall be on an
unreserved, first-come, first-served basis.
D. Landlord shall not be responsible for money, jewelry, automobiles or
other personal property lost in or stolen from the Parking Facility
regardless of whether such loss or theft occurs when the Parking
Facility or any areas therein are locked or otherwise secured.
Except as caused by the negligence or willful misconduct of Landlord
and without limiting the terms of the preceding sentence, Landlord
shall not be liable for any loss, injury or damage to persons using
the Parking Facility or automobiles or other property therein, it
being agreed that, to the fullest extent permitted by law, the use
of the Spaces shall be at the sole risk of Tenant and its employees.
E. Landlord shall have the right from time to time to designate the
location of the Spaces (other than the Reserved Spaces for Tenant's
customers, which shall be located near the entrance of the Parking
Facility) and to promulgate reasonable rules and regulations
regarding the Parking Facility, if any, the Spaces and the use
thereof, including, but not limited to, rules and regulations
controlling the flow of traffic to and from various parking areas,
the angle and direction of parking and the like. Tenant shall comply
with and cause its employees to comply with all such rules and
regulations as well as all reasonable additions and amendments
thereto.
F. Tenant shall not store or permit its employees to store any
automobiles in the Parking Facility without the prior written
consent of Landlord; however, Tenant may park Tenant's executive
cars overnight within the Reserved Spaces which are marked for
Umpqua Bank (or successor thereto). Except for emergency repairs,
Tenant and its employees shall not perform any work on any
automobiles while located in the Parking Facility or on the
Property. If it is necessary for Tenant or its employees to leave an
automobile in the Parking Facility overnight, Tenant shall provide
Landlord with prior notice thereof designating the license plate
number and model of such automobile.
G. Landlord shall have the right to temporarily close the Parking
Facility or certain areas therein in order to perform necessary
repairs, maintenance and improvements to the Parking Facility or any
portion thereof; Landlord will use reasonable efforts to schedule
the performance of any such work on weekends or after Building
Service Hours. If the Parking Facility is closed for more than two
(2) days in any thirty (30) day period, then the parking fees
payable shall be prorated based upon the number of days the Parking
Facility is open during such thirty (30) day period.
H. Tenant shall not assign or sublease any of the Spaces without the
consent of Landlord which will not be withheld unreasonably if such
assignment or sublease is in connection with a Transfer carried out
in accordance with the terms of the Lease (and will not be required
in the case of a Permitted Transfer). Landlord shall have the right
to terminate the parking agreement set forth in this Section 2 with
respect to any Spaces that Tenant subleases or assigns without
Landlord's consent (other than the sublease or assignment of spaces
in connection with a Permitted Transfer).
I. Landlord may elect to provide parking cards or keys to control
access to the Parking Facility. In such event, Tenant shall be
provided with one card or key for each Space that Tenant is leasing
hereunder, provided that Landlord shall have
5
the right to require Tenant or its employees to place a deposit on
such access cards or keys and to pay a fee for any lost or damaged
cards or keys.
J. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for all or any portion of the
Parking Facility (a "Parking Facility Operator"). In such event,
Tenant, upon request of Landlord, shall enter into a parking
agreement with such Parking Facility Operator and pay such Parking
Facility Operator the monthly charge established hereunder, and
Landlord shall have no liability for claims arising through acts or
omissions of any Parking Facility Operator unless caused by
Landlord's negligence or willful misconduct. It is understood and
agreed that the identity of any Parking Facility Operator may change
from time to time during the Term. In connection therewith, any
parking lease or agreement entered into between Tenant and any
Parking Facility Operator shall be freely assignable by such Parking
Facility Operator or any successors thereto.
3. FIRST RENEWAL OPTION.
▇. ▇▇▇▇▇ of Option; Conditions. Tenant shall have the right to extend
the Term (the "First Renewal Option") for one additional period of
five (5) years commencing on the day following the Termination Date
of the initial Term and ending on the fifth (5th) anniversary of the
Termination Date (the "First Renewal Term"), if:
1. Landlord receives notice of exercise ("Initial Renewal
Notice") not less than 12 full calendar months prior to the
expiration of the initial Term and not more than 15 full
calendar months prior to the expiration of the initial Term;
and
2. Tenant is not in default under the Lease beyond any applicable
cure periods at the time that Tenant delivers its Initial
Renewal Notice or at the time Tenant delivers its Binding
Notice (as defined below); and
3. [INTENTIONALLY OMITTED]
4. The Lease has not been assigned (other than pursuant to a
Permitted Transfer) prior to the date that Tenant delivers its
Initial Renewal Notice or prior to the date Tenant delivers
its Binding Notice.
B. Terms Applicable to Premises During First Renewal Term.
1. The initial Base Rent rate per rentable square foot for the
Premises during the First Renewal Term shall equal the
Prevailing Market (hereinafter defined) rate per rentable
square foot for the Premises. Base Rent during the First
Renewal Term shall increase, if at all, and shall include a
tenant improvement allowance competitive for comparable
renewal transactions for Class "A" office buildings in the
City of Portland Central Business District ("Renewal
Allowance") in accordance with the increases assumed in the
determination of Prevailing Market rate. Base Rent
attributable to the Premises shall be payable in monthly
installments in accordance with the terms and conditions of
the Lease.
2. Tenant shall pay Additional Rent (i.e. Taxes and Expenses) for
the Premises during the First Renewal Term in accordance with
the terms of the Lease, and the manner and method in which
Tenant reimburses Landlord for Tenant's share of Taxes and
Expenses and the Base Year, if any, applicable to such matter,
shall be some of the factors considered in determining the
Prevailing Market rate for the First Renewal Term.
C. Initial Procedure for Determining Prevailing Market. Within 30 days
after receipt of Tenant's Initial Renewal Notice, Landlord shall
advise Tenant of the applicable Base Rent rate for the Premises for
the First Renewal Term including any increases during the First
Renewal Term, and the amount of the Renewal Allowance ("First
Renewal Provisions"). Tenant, within 15 days after the date on which
Landlord advises Tenant of the applicable First Renewal Provisions,
shall either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its First Renewal Option,
or (ii) if Tenant disagrees with Landlord's determination, provide
Landlord with written notice of rejection (the "Rejection Notice").
If Tenant fails to provide Landlord with either a Binding Notice or
6
Rejection Notice within such 15 day period, Tenant's First Renewal
Option shall be null and void and of no further force and effect. If
Tenant provides Landlord with a Binding Notice, Landlord and Tenant
shall enter into the Renewal Amendment (as defined below) upon the
terms and conditions set forth herein. If Tenant provides Landlord
with a Rejection Notice, Landlord and Tenant shall work together in
good faith to agree upon the Prevailing Market rate for the Premises
during the First Renewal Term. Upon agreement, Landlord and Tenant
shall enter into the Renewal Amendment in accordance with the terms
and conditions hereof. Notwithstanding the foregoing, if Landlord
and Tenant fail to agree upon the Prevailing Market rate within 30
days after the date Tenant provides Landlord with the Rejection
Notice, Tenant, by written notice to Landlord (the "Arbitration
Notice") within 10 days after the expiration of such 30 day period,
shall have the right to have the Prevailing Market rate determined
in accordance with the arbitration procedures described in Section
3.D below. If Landlord and Tenant fail to agree upon the Prevailing
Market rate within the 30 day period described and Tenant fails to
timely exercise its right to arbitrate, Tenant's First Renewal
Option shall be deemed to be null and void and of no further force
and effect.
D. Arbitration Procedure.
1. If Tenant provides Landlord with an Arbitration Notice,
Landlord and Tenant, within 5 days after the date of the
Arbitration Notice, shall each simultaneously submit to the
other, in a sealed envelope, its good faith estimate of the
Prevailing Market rate for the Premises during the First
Renewal Term (collectively referred to as the "Estimates"). If
the higher of such Estimates is not more than 105% of the
lower of such Estimates, then Prevailing Market rate shall be
the average of the two Estimates. If the Prevailing Market
rate is not resolved by the exchange of Estimates, then,
within 7 days after the exchange of Estimates, Landlord and
Tenant shall each select an appraiser to determine which of
the two Estimates most closely reflects the Prevailing Market
rate for the Premises during the First Renewal Term. Each
appraiser so selected shall be certified as an MAI appraiser
or as an ASA appraiser and shall have had at least 5 years
experience within the previous 10 years as a real estate
appraiser working in Portland, Oregon, with working knowledge
of current rental rates and practices. For purposes hereof, an
"MAI" appraiser means an individual who holds an MAI
designation conferred by, and is an independent member of, the
American Institute of Real Estate Appraisers (or its successor
organization, or in the event there is no successor
organization, the organization and designation most similar),
and an "ASA" appraiser means an individual who holds the
Senior Member designation conferred by, and is an independent
member of, the American Society of Appraisers (or its
successor organization, or, in the event there is no successor
organization, the organization and designation most similar).
Any Estimate will include assumptions regarding the increase
(if any) in Base Rent payable during the course of the First
Renewal Term, as described in Section 3.B.1 above.
2. Upon selection, Landlord's and Tenant's appraisers shall work
together in good faith to agree upon which of the two
Estimates most closely reflects the Prevailing Market rate for
the Premises. The Estimate chosen by such appraisers shall be
binding on both Landlord and Tenant as the Base Rent rate for
the Premises during the First Renewal Term. If either Landlord
or Tenant fails to appoint an appraiser within the 7 day
period referred to above, the appraiser appointed by the other
party shall be the sole appraiser for the purposes hereof. If
both Landlord and Tenant fail to select an appraiser within
such 7 day period, the 7 day period shall be extended until
such time as one of the parties selects an appraiser and gives
notice thereof to the other party and such other party shall
have 5 days thereafter to select its appraiser. If the two
appraisers cannot agree upon which of the two Estimates most
closely reflects the Prevailing Market within 20 days after
their appointment, then, within 10 days after the expiration
of such 20 day period, the two appraisers shall select a third
appraiser meeting the aforementioned criteria. Once the third
appraiser (i.e. arbitrator) has been selected as provided for
above, then, as soon thereafter as practicable but in any case
within 14 days, the arbitrator shall make his determination of
which of the two Estimates
7
most closely reflects the Prevailing Market rate and such
Estimate shall be binding on both Landlord and Tenant as the
Base Rent rate for the Premises. If the arbitrator believes
that expert advice would materially assist him, he may retain
one or more qualified persons to provide such expert advice.
The parties shall share equally in the costs of the arbitrator
and of any experts retained by the arbitrator. Any fees of any
appraiser, counsel or experts engaged directly by Landlord or
Tenant, however, shall be borne by the party retaining such
appraiser, counsel or expert.
3. If the Prevailing Market rate has not been determined by the
commencement date of the First Renewal Term, Tenant shall pay
Base Rent upon the terms and conditions in effect during the
last month of the initial Term for the Premises until such
time as the Prevailing Market rate has been determined. Upon
such determination, the Base Rent for the Premises shall be
retroactively adjusted to the commencement of the First
Renewal Term for the Premises. If such adjustment results in
an underpayment of Base Rent by Tenant, Tenant shall pay
Landlord the amount of such underpayment within 30 days after
the determination thereof. If such adjustment results in an
overpayment of Base Rent by Tenant, Landlord shall credit such
overpayment against the next installment of Base Rent due
under the Lease and, to the extent necessary, any subsequent
installments, until the entire amount of such overpayment has
been credited against Base Rent.
E. Renewal Amendment. If Tenant is entitled to and properly exercises
its Renewal Option, Landlord shall prepare an amendment (the
"Renewal Amendment") to reflect changes in the Base Rent, Term,
Termination Date and other appropriate terms. The Renewal Amendment
shall be sent to Tenant within a reasonable time after receipt of
the Binding Notice and Tenant shall execute and return the Renewal
Amendment to Landlord within 15 days after Tenant's receipt of same,
but, upon final determination of the Prevailing Market rate
applicable during the Renewal Term as described herein, an otherwise
valid exercise of the Renewal Option shall be fully effective
whether or not the Renewal Amendment is executed.
F. Prevailing Market. For purposes hereof, "Prevailing Market" shall
mean the arms length fair market annual rental rate per rentable
square foot, as well as the tenant improvement allowance which is
provided to tenants, under renewal leases and amendments entered
into on or about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Premises in the
Building and other Class "A" office buildings in the City of
Portland Central Business District and will include a Renewal
Allowance. The determination of Prevailing Market shall take into
account any material economic differences between the terms of this
Lease and any comparison lease or amendment, such as rent
abatements, construction costs and allocations and other concessions
and the manner, if any, in which the landlord under any such lease
is reimbursed for operating expenses and taxes.
4. SECOND RENEWAL OPTION.
▇. ▇▇▇▇▇ of Option; Conditions. Tenant shall have the right to extend
the Term (the "Second Renewal Option") for one additional period of
five (5) years commencing on the day following the Termination Date
of the First Renewal Term and ending on the fifth (5th) anniversary
of the Termination Date (the "Second Renewal Term"), if:
1. Landlord receives notice of exercise ("Initial Renewal
Notice") not less than 12 full calendar months prior to the
expiration of the First Renewal Term and not more than 15 full
calendar months prior to the expiration of the First Renewal
Term; and
2. Tenant is not in default under the Lease beyond any applicable
cure periods at the time that Tenant delivers its Initial
Renewal Notice or at the time Tenant delivers its Binding
Notice (as defined below); and
3. [INTENTIONALLY OMITTED]
8
4, The Lease has not been assigned (other than pursuant to a
Permitted Transfer) prior to the date that Tenant delivers its
Initial Renewal Notice or prior to the date Tenant delivers
its Binding Notice.
B. Terms Applicable to Premises During Second Renewal Term.
1. The initial Base Rent rate per rentable square foot for the
Premises during the Second Renewal Term shall equal the
Prevailing Market (hereinafter defined) rate per rentable
square foot for the Premises. Base Rent during the Second
Renewal Term shall increase, if at all, and shall include a
tenant improvement allowance competitive for comparable
renewal transactions for Class "A" office buildings in the
City of Portland Central Business District ("Renewal
Allowance") in accordance with the increases assumed in the
determination of Prevailing Market rate. Base Rent
attributable to the Premises shall be payable in monthly
installments in accordance with the terms and conditions of
the Lease.
2. Tenant shall pay Additional Rent (i.e. Taxes and Expenses) for
the Premises during the Second Renewal Term in accordance with
the terms of the Lease, and the manner and method in which
Tenant reimburses Landlord for Tenant's share of Taxes and
Expenses and the Base Year, if any, applicable to such matter,
shall be some of the factors considered in determining the
Prevailing Market rate for the Second Renewal Term.
C. Initial Procedure for Determining Prevailing Market. Within 30 days
after receipt of Tenant's Initial Renewal Notice, Landlord shall
advise Tenant of the applicable Base Rent rate for the Premises for
the Second Renewal Term including any increases during the Second
Renewal Term, and the amount of the Renewal Allowance ("Second
Renewal Provisions"). Tenant, within 15 days after the date on which
Landlord advises Tenant of the applicable Second Renewal Provisions,
shall either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its Second Renewal
Option, or (ii) if Tenant disagrees with Landlord's determination,
provide Landlord with written notice of rejection (the "Rejection
Notice"). If Tenant fails to provide Landlord with either a Binding
Notice or Rejection Notice within such 15 day period, Tenant's
Second Renewal Option shall be null and void and of no further force
and effect. If Tenant provides Landlord with a Binding Notice,
Landlord and Tenant shall enter into the Renewal Amendment (as
defined below) upon the terms and conditions set forth herein. If
Tenant provides Landlord with a Rejection Notice, Landlord and
Tenant shall work together in good faith to agree upon the
Prevailing Market rate for the Premises during the Second Renewal
Term. Upon agreement, Landlord and Tenant shall enter into the
Renewal Amendment in accordance with the terms and conditions
hereof. Notwithstanding the foregoing, if Landlord and Tenant fail
to agree upon the Prevailing Market rate within 30 days after the
date Tenant provides Landlord with the Rejection Notice, Tenant, by
written notice to Landlord (the "Arbitration Notice") within 10 days
after the expiration of such 30 day period, shall have the right to
have the Prevailing Market rate determined in accordance with the
arbitration procedures described in Section 4.D below. If Landlord
and Tenant fail to agree upon the Prevailing Market rate within the
30 day period described and Tenant fails to timely exercise its
right to arbitrate, Tenant's Second Renewal Option shall be deemed
to be null and void and of no further force and effect.
D. Arbitration Procedure.
1. If Tenant provides Landlord with an Arbitration Notice,
Landlord and Tenant, within 5 days after the date of the
Arbitration Notice, shall each simultaneously submit to the
other, in a sealed envelope, its good faith estimate of the
Prevailing Market rate for the Premises during the Second
Renewal Term (collectively referred to as the "Estimates"). If
the higher of such Estimates is not more than 105% of the
lower of such Estimates, then Prevailing Market rate shall be
the average of the two Estimates. If the Prevailing Market
rate is not resolved by the exchange of Estimates, then,
within 7 days after the exchange of Estimates, Landlord and
Tenant shall each select an appraiser to determine which of
the two Estimates most closely reflects the Prevailing Market
rate for the Premises during the Second Renewal Term. Each
appraiser so selected shall be certified as an MAI appraiser
or as an ASA appraiser and shall have had at least 5
9
years experience within the previous 10 years as a real estate
appraiser working in Portland, Oregon, with working knowledge
of current rental rates and practices. For purposes hereof, an
"MAI" appraiser means an individual who holds an MAI
designation conferred by, and is an independent member of, the
American Institute of Real Estate Appraisers (or its successor
organization, or in the event there is no successor
organization, the organization and designation most similar),
and an "ASA" appraiser means an individual who holds the
Senior Member designation conferred by, and is an independent
member of, the American Society of Appraisers (or its
successor organization, or, in the event there is no successor
organization, the organization and designation most similar).
Any Estimate will include assumptions regarding the increase
(if any) in Base Rent payable during the course of the Second
Renewal Term, as described in Section 4.B.1 above.
2. Upon selection, Landlord's and Tenant's appraisers shall work
together in good faith to agree upon which of the two
Estimates most closely reflects the Prevailing Market rate for
the Premises. The Estimate chosen by such appraisers shall be
binding on both Landlord and Tenant as the Base Rent rate for
the Premises during the Second Renewal Term. If either
Landlord or Tenant fails to appoint an appraiser within the 7
day period referred to above, the appraiser appointed by the
other party shall be the sole appraiser for the purposes
hereof. If both Landlord and Tenant fail to select an
appraiser within such 7 day period, the 7 day period shall be
extended until such time as one of the parties selects an
appraiser and gives notice thereof to the other party and such
other party shall have 5 days thereafter to select its
appraiser. If the two appraisers cannot agree upon which of
the two Estimates most closely reflects the Prevailing Market
within 20 days after their appointment, then, within 10 days
after the expiration of such 20 day period, the two appraisers
shall select a third appraiser meeting the aforementioned
criteria. Once the third appraiser (i.e. arbitrator) has been
selected as provided for above, then, as soon thereafter as
practicable but in any case within 14 days, the arbitrator
shall make his determination of which of the two Estimates
most closely reflects the Prevailing Market rate and such
Estimate shall be binding on both Landlord and Tenant as the
Base Rent rate for the Premises. If the arbitrator believes
that expert advice would materially assist him, he may retain
one or more qualified persons to provide such expert advice.
The parties shall share equally in the costs of the arbitrator
and of any experts retained by the arbitrator. Any fees of any
appraiser, counsel or experts engaged directly by Landlord or
Tenant, however, shall be borne by the party retaining such
appraiser, counsel or expert.
3. If the Prevailing Market rate has not been determined by the
commencement date of the Second Renewal Term, Tenant shall pay
Base Rent upon the terms and conditions in effect during the
last month of the initial Term for the Premises until such
time as the Prevailing Market rate has been determined. Upon
such determination, the Base Rent for the Premises shall be
retroactively adjusted to the commencement of the Second
Renewal Term for the Premises. If such adjustment results in
an underpayment of Base Rent by Tenant, Tenant shall pay
Landlord the amount of such underpayment within 30 days after
the determination thereof. If such adjustment results in an
overpayment of Base Rent by Tenant, Landlord shall credit such
overpayment against the next installment of Base Rent due
under the Lease and, to the extent necessary, any subsequent
installments, until the entire amount of such overpayment has
been credited against Base Rent.
E. Renewal Amendment. If Tenant is entitled to and properly exercises
its Renewal Option, Landlord shall prepare an amendment (the "Second
Renewal Amendment") to reflect changes in the Base Rent, Term,
Termination Date and other appropriate terms. The Renewal Amendment
shall be sent to Tenant within a reasonable time after receipt of
the Binding Notice and Tenant shall execute and return the Renewal
Amendment to Landlord within 15 days after Tenant's receipt of same,
but, upon final determination of the Prevailing Market rate
applicable during the Second Renewal Term as described herein, an
10
otherwise valid exercise of the Second Renewal Option shall be fully
effective whether or not the Renewal Amendment is executed.
F. Prevailing Market. For purposes hereof, "Prevailing Market" shall
mean the arms length fair market annual rental rate per rentable
square foot, as well as the tenant improvement allowance which is
provided to tenants, under renewal leases and amendments entered
into on or about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Premises in the
Building and other Class "A" office buildings in the City of
Portland Central Business District and will include a Renewal
Option. The determination of Prevailing Market shall take into
account any material economic differences between the terms of this
Lease and any comparison lease or amendment, such as rent
abatements, construction costs and other concessions and the manner,
if any, in which the landlord under any such lease is reimbursed for
operating expenses and taxes.
5. FIRST MUST-TAKE SPACE.
A. Generally. Tenant hereby leases from Landlord and Landlord hereby
leases to Tenant the 17,164 square feet of rentable area described
as Suite No. 1400 on the 14th floor of the Building and shown on
EXHIBIT A-3 attached to the Lease (the "First Must-Take Space"). The
Term with respect to the First Must-Take Space shall commence on May
1, 2006 and will terminate on the Termination Date. Effective as of
the First Must-Take Space Commencement Date, the First Must-Take
Space shall be deemed to be a part of the Premises. Notwithstanding
the foregoing to the contrary, the First Must-Take Space
Commencement Date shall be delayed to the extent that Landlord fails
to deliver possession of the First Must-Take Space for any reason,
including but not limited to, holding over by prior occupants.
However, any delay in the First Must-Take Space Commencement Date
shall not subject Landlord to any liability for any loss or damage
resulting therefrom. If the First Must-Take Space Commencement Date
is delayed, the Termination Date shall not be similarly extended.
B. Terms. The First Must-Take Space is leased by Tenant pursuant to all
of the terms and conditions of the Lease, except that the financial
terms and conditions (i.e., Base Rent and Additional Rent) for the
First Must-Take Space shall be as follows:
1. Base Rent. Tenant shall pay Landlord Base Rent for the First
Must-Take Space as follows:
ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
------------------------------------ --------------- ----------
May 1, 2006 - November 30, 2006 $22.50 $32,182.50
December 1, 2006 - November 30, 2008 $23.40 $33,469.80
December 1, 2008 - November 30, 2010 $24.34 $34,814.31
December 1, 2010 - November 30, 2012 $25.31 $36,201.74
December 1, 2012 - November 30, 2014 $26.32 $37,646.37
December 1, 2014 - November 30, 2016 $27.37 $39,148.22
Landlord and Tenant acknowledge that the foregoing schedule is
based on the assumption that the First Must-Take Commencement
Date on the First Must-Take Space is May 1, 2006. If the First
Must-Take Space Commencement Date is other than May 1, 2006,
the schedule set forth above with respect to the payment of
any installment(s) of Base Rent for the First Must-Take Space
shall be appropriately adjusted on a per diem basis to reflect
the actual First Must-Take Space Commencement Date (dates of
adjustment in the Base Rent rate will not be changed, however)
11
and the parties will enter into a the commencement letter
agreement, to be prepared by Landlord, in the form attached as
EXHIBIT D to the Lease.
2. Additional Rent. Effective as of the First Must-Take Space
Commencement Date, Tenant shall pay Additional Rent (i.e.,
Expenses and Taxes) for the First Must-Take Space on the same
terms and conditions set forth in the Lease, provided that
effective as of the First Must-Take Space Commencement Date,
Tenant's Pro Rata Share shall increase by 6.32032%, account
for the addition of the First Must-Take Space.
3. Delay in Delivery. Notwithstanding any of the foregoing to the
contrary, if Tenant takes possession of the First Must-Take
Space prior to the First Must-Take Space Commencement Date for
any reason whatsoever (other than the performance of work in
the First Must-Take Space with Landlord's prior approval, not
to be unreasonably withheld), such possession shall be subject
to all the terms and conditions of the Lease, and Tenant shall
pay Base Rent and Additional Rent as applicable to the First
Must-Take Space to Landlord on a per diem basis at the initial
rate set forth in Section 5.B.1 above for each day of
occupancy prior to the First Must-Take Space Commencement
Date.
4. Improvements to Must-Take Space. Initial Improvements to the
First Must-Take Space will be constructed by Tenant, pursuant
to EXHIBIT C attached to the Lease.
5. Parking. Effective as of the First Must-Take Space
Commencement Date, Landlord shall lease to Tenant, in addition
to the Spaces being leased pursuant to Section 2 above, 13
Unreserved Spaces in the Parking Facility for the use of
Tenant and its employees. The Unreserved Spaces shall be
subject to the terms and conditions of Section 2 and this
EXHIBIT F.
6. SECOND MUST-TAKE SPACE.
A. Generally. Subject to the provisions of Section 7.C below, Tenant
hereby leases from Landlord and Landlord hereby leases to Tenant an
additional floor in the Building, to be identified by Landlord on or
before April 1, 2009 (the "Second Must-Take Space"). Landlord will
use reasonable efforts to designate a floor that is located within
two (2) floors of either the 12th or the 14th floors of the Building
as the Second Must-Take Space. The Second Must-Take Space shall
consist of approximately 17,164 rentable square feet (unless
Landlord designates the nineteenth (19th) floor of the Building as
the Second Must-Take Space, in which case the Second Must-Take Space
shall consist of 14,777 rentable square feet). The Term with respect
to the Second Must-Take Space shall commence on April 1, 2011 and
will terminate on the Termination Date. Effective as of the Second
Must-Take Space Commencement Date, the Second Must-Take Space shall
be deemed to be a part of the Premises. Notwithstanding the
foregoing to the contrary, the Second Must-Take Space Commencement
Date shall be delayed to the extent that Landlord fails to deliver
possession of the Second Must-Take Space for any reason, including
but not limited to, holding over by prior occupants. However, any
delay in the Second Must-Take Space Commencement Date shall not
subject Landlord to any liability for any loss or damage resulting
therefrom. If the Second Must-Take Space Commencement Date is
delayed, the Termination Date shall not be similarly extended.
B. Terms. The Second Must-Take Space is leased by Tenant pursuant to
all of the terms and conditions of the Lease, except that the
financial terms and conditions (i.e., Base Rent and Additional Rent)
for the Second Must-Take Space shall be as follows:
12
1. Base Rent. Tenant shall pay Landlord Base Rent for the Second
Must-Take Space as follows:
ANNUAL RATE
PERIOD PER SQUARE FOOT
------------------------------------ ---------------
April 1, 2011 - November 30, 2012 $25.31
December 1, 2012 - November 30, 2014 $26.32
December 1, 2014 - November 30, 2016 $27.37
Landlord and Tenant acknowledge that the foregoing schedule is
based on the assumption that the Second Must-Take Commencement
Date on the Second Must-Take Space is April 1, 2011. If the
Second Must-Take Space Commencement Date is other than April
1, 2011, the schedule set forth above with respect to the
payment of any installment(s) of Base Rent for the Second
Must-Take Space shall be appropriately adjusted on a per diem
basis to reflect the actual Must-Take Space Commencement Date
(dates of adjustment in the Base Rent rate will not be
changed, however) and the parties will enter into a the
commencement letter agreement in the form attached as EXHIBIT
D to be prepared by Landlord.
2. Additional Rent. Effective as of the Second Must-Take Space
Commencement Date, Tenant shall pay Additional Rent (i.e.
Expenses and Taxes) for the Second Must-Take Space on the same
terms and conditions set forth in the Lease, provided that
effective as of the Second Must-Take Space Commencement Date,
Tenant's Pro Rata Share shall increase to account for the
addition of the Second Must-Take Space.
3. Delay in Delivery. Notwithstanding any of the foregoing to the
contrary, if Tenant takes possession of the Second Must-Take
Space prior to the Second Must-Take Space Commencement Date
for any reason whatsoever (other than the performance of work
in the Second Must-Take Space with Landlord's prior approval,
not to be unreasonably withheld), such possession shall be
subject to all the terms and conditions of this Lease, and
Tenant shall pay Base Rent and Additional Rent as applicable
to the Second Must-Take Space to Landlord on a per diem basis
for each day of occupancy prior to the Second Must-Take Space
Commencement Date.
4. Improvements to Must-Take Space. Tenant shall be entitled to
receive an improvement allowance (the "Second Must Take
Allowance") equal to $22.00 per square foot of rentable area
of the Second Must Take Space. Additionally, Landlord agrees,
at Landlord's sole cost and expense, to upgrade the ceiling on
the floor in which the Second Must-Take Space is located, to a
then-current "Building-standard" ceiling (including the
performance of seismic upgrades to sprinkler and HVAC support,
provided that if Tenant elects to undertake the ceiling work,
Tenant shall be entitled to an increase in the Must-Take
Allowance in the amount of $6.05,
5. Parking. Effective as of the Second Must-Take Space
Commencement Date, Tenant shall lease from Landlord .75
Unreserved Spaces in the Parking Facility for every 1,000
rentable square feet in the Second Must-Take Space for the use
of Tenant and its employees. Said additional Unreserved Spaces
shall be subject to the terms and conditions of Section 2
above.
C. Option to Terminate Obligation to Lease Second Must-Take Space.
Tenant shall have the right, to be exercised by written notice
delivered to Landlord on or before October 31, 2009, to rescind
Tenant's obligation to lease the Second Must-Take Space (the "Second
Must-Take Termination Option"). If Tenant exercises the Second
Must-Take Termination Option, Tenant will be obligated to pay a fee
(the "Second Must-Take Termination Fee") equal to nine (9) months of
Base Rent which would have been payable with respect to the Second
Must-Take Space at the rate applicable for the Second Must-Take
Space as of April 1, 2011 (i.e., $25.31 per rentable square foot per
annum), subject to reimbursement pursuant to Section 7.C below.
Notwithstanding the foregoing, the Second Must-Take Termination Fee
will be subject to retroactive mitigation,
13
as follows: If and to the extent that the Second Must-Take Space
designated by Landlord is occupied by any tenant paying rent during
the period from the date of Tenant's exercise of the Second
Must-Take Termination Option through March 31, 2011, then the
aggregate Base Rent paid by any such tenant (or tenants) of the
Second Must-Take Space over such period shall be offset against the
Second Must-Take Termination Fee and paid by Landlord to Tenant (or,
at Landlord's option, applied against Base Rent next due and payable
by Tenant under the Lease) as of April 1, 2011; provided, however,
in no event shall the reduction in the Second Must-Take Termination
Fee exceed the amount of Base Rent that would otherwise have been
payable by Tenant for the Second Must-Take Space for a period of
three (3) months (i.e., in no event, following any such mitigation,
shall the Second Must-Take Termination Fee equal less than six (6)
months of Base Rent which would have otherwise been payable with
respect to the Second Must-Take Space by Tenant).
7. RIGHTS OF FIRST OFFER.
A. Right of First Offer - - Suite 1900.
1. Generally. Tenant shall have the one time right of first offer
with respect to the 14,777 rentable square feet on the 19th
floor of the Building known as Suite 1900 shown on the
demising plan attached to the Lease as EXHIBIT A-4 (the "Suite
1900 Offering Space"), when the Suite 1900 Offering Space
becomes "Available" for Lease. The Suite 1900 Offering Space
shall be deemed to be "Available for Lease" as follows: (i) if
the Suite 1900 Offering Space is under lease from time to time
to third parties, the Suite 1900 Offering Space shall be
deemed to be Available for Lease when Landlord has determined
that such third party will not extend or renew the term of its
lease or enter into a new lease for the Suite 1900 Offering
Space, or (ii) if the Offering Suite 1900 Space is not under
lease, the Suite 1900 Offering Space shall be deemed to be
Available for Lease when Landlord is ready to put such space
on the market for lease. Within a reasonable time after
Landlord has determined that the Suite 1900 Offering Space is
Available for Lease (but prior to leasing the Suite 1900
Offering Space to a third party), Landlord shall advise Tenant
(the "Advice") of the terms under which Landlord is prepared
to lease the Suite 1900 Offering Space to Tenant for the
remainder of the Term. Tenant may lease the Suite 1900
Offering Space in its entirety only, under such terms, by
delivering written notice of exercise to Landlord ("Notice of
Exercise") within ten (10) Business Days after the date of the
Advice, except that Tenant shall have no such Right of First
Offer and Landlord need not provide Tenant with an Advice, if:
a. Tenant is in default under the Lease at the time
Landlord would otherwise deliver the Advice; or
b. [INTENTIONALLY OMITTED]
c. the Lease has been assigned (other than to a Permitted
Transfer) prior to the date Landlord would otherwise
deliver the Advice; or
d. [INTENTIONALLY OMITTED]
e. fifty percent (50%) or more of the Suite 1900 Offering
Space is not intended for the exclusive use of Tenant;
or
2. Terms.
a. If Tenant timely exercises the Right of First Offer
granted herein, the term for the Suite 1900 Offering
Space shall commence upon the commencement date stated
in the Advice and thereupon the Suite 1900 Offering
Space shall be considered a part of the Premises,
provided that all of the terms stated in the Advice
shall govern Tenant's leasing of the Suite 1900 Offering
Space and only to the extent that they do not conflict
with the Advice, the terms and conditions of the Lease
shall apply to the Suite 1900 Offering Space.
14
b. Tenant shall pay Base Rent and Additional Rent for the
Suite 1900 Offering Space in accordance with the terms
and conditions of the Advice.
c. The Suite 1900 Offering Space (including improvements,
if any) shall be accepted by Tenant in its condition and
as-built configuration existing on the earlier of the
date Tenant takes possession of the Suite 1900 Offering
Space or as of the date the term for the Suite 1900
Offering Space commences (provided that Landlord will
deliver such space in broom-clean condition and free of
claims of possession of third parties), however if the
Advice specifies any allowance to be provided by
Landlord with respect to the Suite 1900 Offering Space,
Tenant may use such allowance to perform initial
Alterations in such space.
3. Expiration of Right of First Offer. The rights of Tenant
hereunder with respect to the Suite 1900 Offering Space shall
terminate on the earlier to occur of: (i) November 30, 2014;
(ii) Tenant's failure to exercise its Right of First Offer
within the ten (10) Business Day period provided in Paragraph
7.A.1. above, and (iii) the date Landlord would have provided
Tenant an Advice if Tenant had not been in violation of one or
more of the conditions set forth in Paragraph 7.A.1. above.
Notwithstanding the foregoing, Tenant shall once again have
the Right of First Offer with respect to the Suite 1900
Offering Space if (i) Tenant was entitled to exercise its
Right of First Offer, but failed to provide Landlord with a
Notice of Exercise within the ten (10) day period provided in
Section 7.A.1 above, and Landlord proposes to lease the Suite
1900 Offering Space to a prospective tenant on terms that are
substantially different than those set forth in the Advice.
For purposes hereof, the terms offered to a prospect shall be
deemed to be substantially the same as those set forth in the
Advice as long as there is no more than a five percent (5%)
reduction in the "bottom line" cost per rentable square foot
of the Suite 1900 Offering Space to the prospect when compared
with the "bottom line" cost per rentable square foot under the
Advice, considering all of the economic terms of the both
deals, respectively, including, without limitation, the length
of term, the net rent, any tax or expense escalation or other
financial escalation and any financial concessions.
4. Offering Amendment. If Tenant exercises the Right of First
Offer granted herein, Landlord shall prepare an amendment (the
"Offering Amendment") adding the Suite 1900 Offering Space to
the Premises on the terms set forth in the Advice and
reflecting the changes in the Base Rent, Rentable Area of the
Premises, Tenant's Pro Rata Share and other appropriate terms.
A copy of the Offering Amendment shall be (i) sent to Tenant
within a reasonable time after receipt of the Notice of
Exercise executed by Tenant, and (ii) executed by Tenant and
returned to Landlord within ten (10) days thereafter.
Notwithstanding the foregoing, if Tenant exercises its Right
of First Offer, but thereafter fails to timely execute and
deliver the Offering Amendment to Landlord, at Landlord's
option, Tenant's obligation to lease the Suite 1900 Offering
Space in accordance with the terms and conditions of the
Advice shall be final and binding on Tenant.
B. Right of First Offer - - 11th and 15th Floors.
1. Generally. Tenant shall have the right of first offer with
respect to any space that becomes Available for Lease
(hereinafter defined) on the 11th or (subject to the Mazama
Rights, defined below) 15th floors of the Building (the
"Offering Space"). Offering Space shall be deemed to be
"Available for Lease" as follows: (i) with respect to any
Offering Space that is under lease from time to time to third
parties, such Offering Space shall be deemed to be Available
for Lease when Landlord has determined that such third party
will not extend or renew the term of its lease or enter into a
new lease for the Offering Space, or (ii) with respect to any
Offering Space that is not under lease, such Offering Space
shall be deemed to be available when landlord is ready to put
such space on the market for lease. Within a reasonable time
after Landlord has determined that a particular portion of the
Offering Space is Available for
15
Lease (but prior to leasing such portion of the Offering Space
to a third party), Landlord shall advise Tenant (the "Advice")
of the square footage and location of such portion of the
Offering Space and the terms (i.e., Base Rent, Additional Rent
and improvement allowance, if any) under which Landlord is
prepared to lease such Offering Space to Tenant for the
remainder of the Term. Tenant may lease such portion of the
Offering Space in its entirety only, under such terms, by
delivering written notice of exercise to Landlord ("Notice of
Exercise") within ten (10) days after the date of the Advice,
except that Tenant shall have no such Right of First Offer and
Landlord need not provide Tenant with an Advice, if:
a. Tenant is in default under the Lease at the time
Landlord would otherwise deliver the Advice; or
b. [INTENTIONALLY OMITTED]
c. the Lease has been assigned (except in pursuant to a
Permitted Transfer) prior to the date Landlord would
otherwise deliver the Advice; or
d. with respect to Space on the 15th floor, the holder of
the Mazama Rights elects to exercise one or more of such
rights, in a manner which supercedes the Right of First
Offer with respect to such Space; or
e. the Offering Space is not intended for the exclusive use
of Tenant.
2. Terms.
a. If Tenant timely exercises the Right of First Offer
granted herein, the term for the Offering Space shall
commence upon the commencement date stated in the Advice
and thereupon such Offering Space shall be considered a
part of the Premises, provided that all of the terms
stated in the Advice shall govern Tenant's leasing of
the Offering Space and only to the extent that they do
not conflict with the Advice, the terms and conditions
of the Lease shall apply to the Offering Space.
b. Tenant shall pay Base Rent and Additional Rent for the
Offering Space in accordance with the terms and
conditions of the Advice.
c. The Offering Space (including improvements) shall be
accepted by Tenant in its condition and as-built
configuration existing on the earlier of the date Tenant
takes possession of the Offering Space or as of the date
the term for such Offering Space commences, provided
that such Offering Space shall be delivered to Tenant
vacant, broom clean and free of claims and possession of
third parties.
3. Expiration of Right of First Offer. The rights of Tenant
hereunder with respect to any portion of the Offering Space
for which Landlord provides Tenant with an Advice shall
terminate on the earlier to occur of: (i) November 30, 2014,
(ii) Tenant's failure to exercise its Right of First Offer
within the ten (10) day period provided in Paragraph 7.B.1.
above, and (ii) the date Landlord would have provided Tenant
an Advice if Tenant had not been in violation of one or more
of the conditions set forth in Paragraph 7.B.1 above. In
addition, if Landlord provides Tenant with an Advice that
contains expansion rights (whether such rights are described
as an expansion option, right of first refusal, right to first
offer or otherwise) and Tenant does not exercise its Right of
First Offer to lease the Offering Space described in the
Advice, and Landlord subsequently leases such Offering Space
to a third party pursuant to a lease containing all or some of
the expansion rights, Tenant's Right of First Offer shall be
thereafter subject and subordinate to all such expansion
rights contained in the third party lease. Notwithstanding the
foregoing, Tenant shall once again have the Right of First
Offer with respect to the Offering Space if (i) Tenant was
entitled to exercise its Right of First Offer, but failed to
16
provide Landlord with a Notice of Exercise within the ten (10)
day period provided in Section 7.B.1 above, and Landlord
proposes to lease the Offering Space to a prospective tenant
on terms that are substantially different than those set forth
in the Advice. For purposes hereof, the terms offered to a
prospect shall be deemed to be substantially the same as those
set forth in the Advice as long as there is no more than a ten
percent (10%) reduction in the "bottom line" cost per rentable
square foot of the Offering Space to the prospect when
compared with the "bottom line" cost per rentable square foot
under the Advice, considering all of the economic terms of the
both deals, respectively, including, without limitation, the
length of term, the net rent, any tax or expense escalation or
other financial escalation and any financial concessions.
4. Offering Amendment. If Tenant exercises the Right of First
Offer described herein, Landlord shall prepare an amendment
(the "Offering Amendment") adding the Offering Space to the
Premises on the terms set forth in the Advice and reflecting
the changes in the Base Rent, rentable area of the Premises,
Tenant's Pro Rata Share and other appropriate terms. A copy of
the Offering Amendment shall be (i) sent to Tenant within a
reasonable time after receipt of the Notice of Exercise
executed by Tenant, and (ii) revised by Landlord to address
any requested changes by Tenant that are necessary to
accurately reflect the terms and conditions hereof; (iii)
executed by Tenant and returned to Landlord within fifteen
(15)days thereafter. Notwithstanding the foregoing, if Tenant
exercises its Right of First Offer, but thereafter fails to
timely execute and deliver the Offering Amendment to Landlord,
at Landlord's option, Tenant's obligation to lease the
Offering Space in accordance with the terms and conditions of
the Advice shall nonetheless be binding upon Tenant.
C. Effect on Tenant's Obligation to Lease Second Must-Take Space. If
Tenant exercises either the Right of First Offer described in
Section 7.A above or exercises the Right of First Offer pursuant to
Section 7.B above with respect to all of either the 11th or 15th
floors (or a combination of spaces on such floor(s) which, when
aggregated, have a rentable square footage equal to or in excess of
the rentable square footage of all of either floor 11 or floor 15)
and occupies any such full floor (or such full-floor equivalent
space) on or before April 1, 2011, then Tenant shall have no
obligation to lease the Second Must-Take Space as described in
Section 6 above and if Tenant has exercised is Second Must-Take
Termination Option and paid the Second Must-Take Termination Fee,
Tenant shall be entitled to either (i) deduct the amount of the
Second Must-Take Termination Fee from the Base Rent next due under
this Lease for the Premises until such Second Must-Take termination
Fee paid has been reimbursed in full or (ii) to receive from
Landlord reimbursement of the Second Must-Take Termination Fee
within 30 days after written demand therefore delivered to Landlord
by Tenant.
D. Mazama Rights. As used herein, the "Mazama Rights" means the rights
currently held by Mazama Capital Management, Inc. ("Mazama"), a
current tenant of space on the 15th floor of the Building, to (i)
extend the term of its lease and/or (ii) to have a right of first
offer with respect to the portion of the 15th floor not occupied by
Mazama.
8. OTHER EXPANSION SPACE. If Tenant desires additional expansion space within
the Building in addition to the space described in Sections 5, 6 and 7 above,
Landlord will use good faith efforts to accommodate Tenant's expansion request
by providing space as close to the Premises as is feasible; the foregoing will
not be construed to require Landlord to relocate existing tenants in order to
accommodate Tenant, although Landlord may, in its sole discretion, elect to do
so.
9. TENANT IDENTITY.
A. Signage. Tenant shall have the right (i) to install (a) one (1) sign
on the east facade of the Building above the 19th floor and (b) one
(1) additional sign on the Building's exterior in an area to be
designated by Tenant but subject to Landlord's prior written
approval (each, a "Building Sign") and (ii) to maintain signage
identifying Tenant on two (2) monument signs serving the Building
(the "Monument Signs") (each of the foregoing Building Signs and
Monument Signs
17
being generically referred to herein as a "Sign" and together, the
"Signs"). The Signs will identify the initial Tenant named hereunder
(either "Umpqua" or "Umpqua Bank", an Oregon State Chartered Bank)
and shall not be used for any other purpose. The installation of
each of the Signs shall be subject to all applicable zoning codes,
rules or regulations, and the method of manufacture, design,
location and maintenance of the Signs shall be subject to Landlord's
prior written approval. The Building Signs may be illuminated
provided that Tenant pay all costs associated with such
illumination, such as the cost of installing and maintaining any
necessary utility infrastructure as well as the cost of utilities
consumed by such sign). Tenant, at its sole cost and expense, shall
obtain all necessary building permits and zoning and regulatory
approvals in connection with the Signs. All costs in connection with
the Signs, including any costs for the design, installation,
supervision of installation, wiring, maintenance, repair and removal
of the Signs, will be at borne solely by Tenant. Tenant shall submit
to Landlord reasonably detailed drawings of the proposed Building
Signs, including without limitation, the size, material, shape and
lettering, for review and approval by Landlord, which approval will
not be unreasonably withheld. The Building Signs shall conform to
the standards of design and motif established by Landlord for the
exterior of the Building. Tenant shall reimburse Landlord, within 10
Business Days following invoice therefore, for any costs associated
with Landlord's review and supervision in connection with Landlord's
approval of the Building Signs and their installation including, but
not limited to, engineers and other professional consultants. Tenant
will be responsible for the repair of any damage that the
installation of the Building Signs may cause to the Building. Tenant
may not change the size or location of either Monument Sign. Tenant
agrees upon the expiration date or sooner termination of this Lease,
upon Landlord's request, to remove the Signs and to repair and
restore any damage to the Building resulting from either the
installation or removal of the Signs, at Tenant's expense. In
addition, Landlord shall have the right to remove the Signs at
Tenant's sole cost and expense, if, at any time during the Term (1)
Tenant assigns the interest in the Lease, or (2) Tenant is in
Monetary Default under any term or condition of the Lease and fails
to cure such Monetary Default within any applicable grace period.
B. Building Name. Upon the Commencement Date, Landlord will cause the
Building to be renamed Umpqua Bank Plaza. Tenant acknowledges that
the Building naming rights are personal to the original Tenant named
hereunder (i.e., Umpqua Bank, an Oregon State Chartered Bank) and
may not be transferred in any manner to another entity or
individual. Additionally, the Building naming rights granted however
may, at Landlord's sole option, be rescinded if at any time Tenant
is in default under the Lease.
C. Flag Pole. The initial Tenant named herein will have the exclusive
right to the use of one (1) flagpole serving the Building and
designated by Landlord for the purpose of flying a flag which
identifies the initial Tenant named hereunder (i.e., Umpqua Bank, an
Oregon State Chartered Bank); provided that Landlord will have the
right to review and approve the proposed size and design of any such
flag (Landlord's approval not to be unreasonably withheld). All
costs associated with the use of such flagpole will be borne by
Tenant. Landlord will have the right to rescind Tenant's right to
the use of such flagpole if, at any time during the Term (1) Tenant
assigns its interest in the Lease (other than to a Permitted
Transferee retaining the name of the initial Tenant hereunder), or
(2) Tenant is in Monetary Default under any term or condition of the
Lease and fails to cure such Monetary Default within any applicable
grace period
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EXHIBIT F-1
LOCATION OF CUSTOMER PARKING SPACES
[TO FOLLOW]
1
EXHIBIT G
GUARANTY OF LEASE
FOR VALUE RECEIVED and in consideration for and as an inducement to OR-BF PLAZA
LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Landlord") to lease
certain real property to UMPQUA BANK, AN OREGON STATE CHARTERED BANK, as tenant
("Tenant"), pursuant to a lease dated ___________, 200__ (the "Lease") by and
between Landlord and Tenant, the undersigned, UMPQUA HOLDINGS CORPORATION, AN
OREGON BANKING CORPORATION ("Guarantor"), does hereby unconditionally and
irrevocably guarantee to Landlord the punctual payment of all Rent (as such term
is defined in the Lease) payable by Tenant under the Lease throughout the term
of the Lease and any and all renewals and extensions thereof in accordance with
and subject to the provisions of the Lease, and the full performance and
observance of all other terms, covenants, conditions and agreements therein
provided to be performed and observed by Tenant under the terms of the Lease,
for which the undersigned shall be jointly and severally liable with Tenant. If
any default on the part of Tenant shall occur under the Lease, the undersigned
does hereby covenant and agree to pay to Landlord in each and every instance
such sum or sums of money and to perform each and every covenant, condition and
agreement under the Lease as Tenant is and shall become liable for or obligated
to pay or perform under the Lease, together with the costs reasonably incurred
by Landlord in connection therewith, including, without limitation, reasonable
attorneys' fees. Such payments of Rent and other sums shall be made monthly or
at such other intervals as the same shall or may become payable under the Lease,
including any accelerations thereof, all without requiring any notice from
Landlord (other than any notice required by the Lease) of such non-payment or
non performance, all of which the undersigned hereby expressly waives.
The maintenance of any action or proceeding by Landlord to recover any sum
or sums that may be or become due under the Lease and to secure the performance
of any of the other terms, covenants and conditions of the Lease shall not
preclude Landlord from thereafter instituting and maintaining subsequent actions
or proceedings for any subsequent default or defaults of Tenant under the Lease.
The undersigned does hereby consent that without affecting the liability of the
undersigned under this Guaranty and without notice to the undersigned, time may
be given by Landlord to Tenant for payment of Rent and such other sums and
performance of said other terms, covenants and conditions, or any of them, and
such time extended and indulgence granted, from time to time, or Tenant may be
dispossessed or Landlord may avail itself of or exercise any or all of the
rights and remedies against Tenant provided by law or by the Lease, and may
proceed either against Tenant alone or jointly against Tenant and the
undersigned or against the undersigned alone without first prosecuting or
exhausting any remedy or claim against Tenant. The undersigned does hereby
further consent to any subsequent change, modification or amendment of the Lease
in any of its terms, covenants or conditions, or in the Rent payable thereunder,
or in the premises demised thereby, or in the term thereof, and to any
assignment or assignments of the Lease, and to any subletting or sublettings of
the premises demised by the Lease, and to any renewals or extensions thereof,
all of which may be made without notice to or consent of the undersigned and
without in any manner releasing or relieving the undersigned from liability
under this Guaranty.
The undersigned does hereby agree that the bankruptcy of Tenant shall have
no effect on the obligations of the undersigned hereunder. The undersigned does
hereby further agree that in respect of any payments made by the undersigned
hereunder, the undersigned shall not have any rights based on suretyship,
subrogation or otherwise to stand in the place of Landlord so as to compete with
Landlord as a creditor of Tenant, unless and until all claims of Landlord under
the Lease shall have been fully paid and satisfied.
Neither this Guaranty nor any of the provisions hereof can be modified,
waived or terminated, except by a written instrument signed by Landlord. The
provisions of this Guaranty shall apply to, bind and inure to the benefit of the
undersigned and Landlord and their respective heirs, legal representatives,
successors and assigns. The undersigned, if there be more than one, shall be
jointly and severally liable hereunder, and for purposes of such several
liability the word "undersigned" wherever used herein shall be construed to
refer to each of the undersigned parties separately, all in the same manner and
with the same effect as if each of them had signed separate instruments, and
this Guaranty shall not be revoked or impaired as to any of such parties by the
death of another party or by revocation or release of any obligations hereunder
of any other party. If Landlord should retain counsel and/or institute any suit
against Guarantor to enforce this Guaranty or any covenants or obligations
hereunder, then Guarantor shall pay to Landlord, upon demand, all reasonable
attorneys' fees, costs and expenses, including, without limitation, court costs,
filing fees, recording costs, and all other
1
costs and expenses incurred in connection therewith (all of which are referred
to herein as "Enforcement Costs"), in addition to all other amounts due
hereunder. This Guaranty shall be governed by and construed in accordance with
the internal laws of the state where the premises demised by the Lease are
located. For the purpose solely of litigating any dispute under this Guaranty,
the undersigned submits to the jurisdiction of the courts of said state.
Any notice or other communication to be given to Landlord or the
undersigned hereunder shall be in writing and sent in accordance with the notice
provisions of the Lease. Notices to Landlord shall be delivered to Landlord's
address set forth in the Lease. Notices to the undersigned shall be addressed as
follows: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. If Guarantor's notice address as set forth above changes,
Guarantor agrees to provide written notice to Landlord of such change in
address.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
date of the Lease.
GUARANTOR:
UMPQUA HOLDINGS CORPORATION,
AN OREGON BANKING CORPORATION
By:___________________________
Name:_________________________
Title:________________________
GUARANTOR ACKNOWLEDGMENTS
CORPORATION
STATE OF ____________)
COUNTY OF __________) ss:
On this the ___ day of ____________, 20__, before me a Notary Public duly
authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared __________________________ known to me to be
____________ President of ________________________, one of the parties described
in the foregoing instrument, and acknowledged that as such officer, being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
corporation by subscribing the name of such corporation by himself/herself as
such officer and caused the corporate seal of said corporation to be affixed
thereto, as a free and voluntary act, and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires: __________
2
EXHIBIT H
JANITORIAL SPECIFICATIONS
1
EXHIBIT I
SUITE 900 TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT ("TERMINATION AGREEMENT") is made as of
______________, 2004, by and between OR-BF PLAZA LIMITED PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP ("LANDLORD") and UMPQUA BANK, AN OREGON STATE CHARTERED BANK
("TENANT").
RECITALS:
A. Landlord (as successor in interest to ▇▇▇▇▇▇▇ Properties, L.P.) and Tenant
(as successor in interest to Centennial Bank) are parties to that certain
lease dated as of April 5, 1999, which lease has been previously amended
by instruments dated June 18, 1999 and May 25, 2000 (collectively, the
"LEASE") relating to approximately 6,588 rentable square feet, known as
Suite No. 900 (the "PREMISES") located on the 9th floor of the building
commonly known as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza, located at ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (the "BUILDING"), all as more particularly
described in the Lease.
B. The Term is scheduled to expire on July 31, 2009 (the "STATED TERMINATION
DATE"), and Landlord and Tenant desire to terminate the Lease prior to the
Stated Termination Date on the terms and conditions contained in this
Termination Agreement.
NOW, THEREFORE, in consideration of the above recitals which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. Effective as of the date that Tenant completes its "Initial Alterations"
in, and occupies the portion of the Building known as, Suite 100 pursuant to the
terms of that certain Office Lease of even date herewith by and between Landlord
and Tenant pursuant to which Tenant will initially occupy Suites 100 and 1200 in
the Building, which date is anticipated to occur on or about March 1, 2005 (the
"EARLY TERMINATION DATE") and subject to the agreements, representations,
warranties and indemnities contained in this Termination Agreement, the Lease is
terminated and the Term of the Lease shall expire with the same force and effect
as if the Term was, by the provisions thereof, fixed to expire on the Early
Termination Date.
2. Subject to the agreements, representations and warranties contained in
this Agreement, effective as of the Early Termination Date, (i) Tenant remises,
releases, quitclaims and surrenders to Landlord, its successors and assigns, the
Lease and all of the estate and rights of Tenant in and to the Lease and the
Premises, and (ii) Tenant forever releases and discharges Landlord from any and
all claims, demands or causes of action whatsoever against Landlord or its
successors and assigns arising out of or in connection with the Premises or the
Lease and (iii) forever releases and discharges Landlord from any obligations to
be observed or performed by Landlord under the Lease after the Early Termination
Date; provided that Landlord has satisfied, performed and fulfilled all of the
agreements set forth in this Termination Agreement, and each of the
representations and warranties set forth in Section 5 below are true and
correct.
3. Subject to the agreements, representations, warranties and indemnities
contained in this Termination Agreement, Landlord (i) agrees to accept the
surrender of the Lease and the Premises from and after the Early Termination
Date and, (ii) effective as of the Early Termination Date, forever releases and
discharges Tenant from any obligations to be observed and performed by Tenant
under the Lease after the Early Termination Date, provided that Tenant has
satisfied, performed and fulfilled all of the agreements set forth in this
Termination Agreement, and each of the representations and warranties set forth
in Section 5 below are true and correct.
4. On or prior to the Early Termination Date,
(a) Tenant shall:
(i) Fulfill all covenants and obligations of Tenant under the
Lease applicable to the period prior to and including the Early Termination
Date.
(ii) Completely vacate and surrender the Premises to Landlord in
accordance with the terms of the Lease. Without limitation, Tenant shall leave
the Premises in a broom-
1
clean condition and free of all movable furniture and equipment and shall
deliver the keys to the Premises to Landlord or Landlord's designee.
(b) Landlord shall fulfill all covenants and obligations of Landlord
under the Lease applicable to the period prior to and including the Early
Termination Date.
5. Tenant represents and warrants that (a) Tenant is the rightful owner of
all of the Tenant's interest in the Lease; (b) Tenant has not made any
disposition, assignment, sublease, or conveyance of the Lease or Tenant's
interest therein; (c) Tenant has no knowledge of any fact or circumstance which
would give rise to any claim, demand, obligation, liability, action or cause of
action arising out of or in connection with Tenant's occupancy of the Premises;
(d) no other person or entity has an interest in the Lease, collateral or
otherwise; and (e) there are no outstanding contracts for the supply of labor or
material and no work has been done or is being done in, to or about the Premises
which has not been fully paid for and for which appropriate waivers of
mechanic's liens have not been obtained. The foregoing representation and
warranty shall be deemed to be remade by Tenant in full as of the Early
Termination Date. Landlord represents to Tenant that(i) Landlord is the rightful
owner of all of Landlord's interest in the Lease, (ii) Landlord has not made any
disposition, assignment or conveyance of Landlord's interest in the Lease, and
(iii) Landlord has no knowledge of any fact or circumstance which would give
rise to any claim, demand, obligation, liability action or cause of action
arising out of or in connection with Landlord's interest with respect to the
Premises.
6. Notwithstanding anything in this Termination Agreement to the contrary,
Tenant shall remain liable for all year-end adjustments with respect to Tenant's
pro-rata share of Operating Expenses for that portion of the calendar year up to
and including the Early Termination Date. Such adjustments shall be paid at the
time, in the manner and otherwise in accordance with the terms of the Lease,
unless otherwise specified herein.
7. Section 6.1 of the Lease shall survive the termination of the Lease
pursuant to this Agreement, as described in said Section 6.1.
8. Each signatory of this Termination Agreement represents hereby that he or
she has the authority to execute and deliver the same on behalf of the party
hereto for which such signatory is acting.
9. This Termination Agreement shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective successors, assigns and related
entities.
2
IN WITNESS WHEREOF, Landlord and Tenant have executed this Termination
Agreement on the day and year first above written.
LANDLORD:
OR-BF PLAZA LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP
By: EOP-QRS Trust, a Maryland real
estate investment trust, its
general partner
By: __________________________
Name: __________________________
Title: __________________________
TENANT:
UMPQUA BANK, AN OREGON STATE
CHARTERED BANK
By: ______________________________
Name: ______________________________
Title: ______________________________
Tenant's Tax ID Number (SSN or FEIN):
_____________________________________
3