MMD2013-00008 NOTICE OF TYPE I DECISION
MINOR MODIFICATION (MMD) 2013 -00008 !hi 19
COMCAST CABLE TIGARD
120 DAYS = 6/14/2013
SECTION I. APPLICATION SUMMARY
FILE NAME: Comcast Cable
CASE NO.: Minor Modification (MMD) MMD2013 -00008
PROPOSAL: The proposed minor modification to existing development includes interior and
exterior improvements to the existing commercial building, and adjustments to the
parking lot, landscaping, sidewalks and storm water drainage system.
APPLICANT: Comcast Cable
C/O Lease Crutcher Lewis
Paul Riso
550 SW 12 Ave
Portland, OR 97205
OWNER: Then Benenson 68 Parkway Key LLC
C/O Benenson Capital Partners, LLC
708 Third Ave, 28 Floor
New York, NY 10017
LOCATIONS: 11308 SW 68 Parkway
WCTM 1S136DA, Tax Lot 00100.
ZONING
DESIGNATION: MUE: Mixed 11,se Employment. This zoning district permits a wide range of
uses including major retail goods and services, business /professional offices,
civic uses and housing; the latter includes multi- family housing at a maximum
density of 25 units /acre, equivalent to the R -25 zoning district. A wide range of
uses, including but not limited to community recreation facilities, medical
centers, schools, utilities and transit- related park- and -ride lots, are permitted
conditionally.
APPLICABLE
REVIEW
CRITERIA: Community Development Code Chapters 18.360.060.0
SECTION II. DECISION
Notice is hereby given that the City of Tigard Community Development Director's designee has
APPROVED WITH CONDITIONS the above request. The findings and conclusions on which the
decision is based are noted in Section IV.
\@I1)2013 -00008 COMCAST CABLE Pagc 1 of 3
1. Applicant shall comply with applicable 2010 Oregon Fire Code (OFC) standards, as noted in
February 12, 2013 letter from Tualatin Valley Fire & Rescue.
THIS APPROVAL SHALL BE VALID FOR 18 MONTHS
FROM THE EFFECTIVE DATE OF THIS DECISION.
SECTION III. BACKGROUND INFORMATION
Site Information:
The project is located at 11308 SW 68 Parkway, east of 68 Parkway and west Interstate 5. The entire
site is approximately 9 acres in size and is developed with an 88,125 square foot commercial /office
building, associated parking lots and landscaping (SDR88 -16). In 2003, a minor modification was
approved for the placement of a generator unit and displacement of parking spaces. The site has
approximately 331 spaces and only 238 spaces are required for the office use (a surplus of 93 spaces).
Proposal Description:
The applicant intends to perform tenant improvements in the existing building. The parking lot will be
restriped to accommodate service trucks, landscape islands will be adjusted to maintain a 24 foot -wide
drive aisle, and existing accessible spaces will be restriped and reconstructed to meet grade
requirements. The existing parking lot will also be expanded by 8 feet to allow for 11 new spaces and a
drive aisle. Two new security gates and an 8 -foot high chain link fence are proposed along the southern
edge of the property and a utility pole training yard will be installed in the existing landscape area. A
new concrete sidewalk ramp leading from the north end of the building to the parking lots will be
constructed. As part of the parking modifications, three new maple trees will be planted to replace the
three removed maple trees. Lastly, the two large pavement areas will utilize subsurface drainage
collection pipes to convey infiltrated storm water to the existing in -site storm drain system. The site
will have 316 parking spaces after the modification and the code only requires 238 spaces (2.7/1,000sq
ft); therefore additional parking is not required. The proposed modifications are detailed on site plan
sheet "EX C ".
SECTION IV. APPLICABLE REVIEW CRITERIA AND FINDINGS
MINOR MODIFICATION OF SITE DEVELOPMENT REVIEW:
The proposed change in use requires a Minor Modification to approved plans or existing
development. Section 18.360.060.0 states that a minor modification shall be approved,
approved with conditions or denied following the Director's review and as follows:
1. The proposed development is in compliance with all applicable requirements of this
title; and
FINDING: Upon review of the proposal's plans and narrative, staff fords that all applicable
requirements of this title are satisfied. This includes but is not limited to
building height, setbacks, and parking requirements. This criterion is met.
2. The modification is not a major modification.
FINDING: Staff fords that the changes listed in TDC18.360.050.B.1 -11 are either satisfied
or do not apply. Therefore, the proposed development is not a major
modification. This criterion is met.
CONCLUSION: The proposal is a minor modification of existing site development and is in
compliance with the applicable requirements of this title.
NIMD2013 -00008 CONIC \ST CAB1.13 Page 2 of 3
SECTION V. AGENCY COMMENTS
Tualatin Valley Fire & Rescue stated the applicant shall comply with all applicable OFC standards,
including but not limited to aerial fire apparatus access, gates securing fore apparatus roads, reflective
hydrant markers, installation of a knox box, etc. These are detailed in a letter dated February 12, 2013
(attached).
STAFF RESPONSE: This information was passed along to the applicant. Applicant may contact TVFD
regarding compliance.
SECTION VI. PROCEDURE AND APPEAL INFORMATION
Notice:
Notice was posted at City Hall and mailed to:
X The applicant and owners
X Affected government agencies
Final Decision:
A Minor Modification is a Type I procedure. As such, the Director's decision is final on the date it is
mailed or otherwise provided to the applicant, whichever occurs first. The Director's decision may not
be appealed locally and is the final decision of the City.
THIS DECISION IS FINAL ON FEBRUARY 14, 2013.
AND BECOMES EFFECTIVE ON FEBRUARY 15, 2013.
Questions:
If you have any questions, please call Agnes Kowacz at the City of Tigard Planning Division, Tigard
City Hall, 13125 SW Hall Boulevard, Tigard, Oregon at (503) 639 -4171.
. 7
4124
February 14. 2013
APPRO D BY: Agnes Kowacz DATE
Associate Planner
503- 718 -2427
agnesk(a,tigard- or.gov
MMD2013 -00008 COMC.IST C:1B1,1? Pagc 3 of 3
RECEIVED
JAN 31 2013
I II 4 City of Tigard CITY OF TIGARD
Minor Modificat — Type I Application
TIGARD
Type 1 1
■ f
GENERAL INFORMATION
Property Address /Location(s): 113 0 8 SW 6 8th Pkwy In addition, the Director must find that the proposed
Tigard, OR 97223 change is in compliance with all applicable requirements of
Tax Map & Tax Lot #(s): Title 18 of the Tigard Development Code. To complete
1 S 13 6 DA0 010 0 this review, the Applicant's proposal must include a
Site Size: 9 - 87 ac discussion indicating how the site expansion /change will
continue to comply with the maximum setback, building
Applicant*:Comcast Cable, c/o Lease Crutcher Lewis height, parking, and landscaping standards. Other
Address: 550 SW 12th Ave requirements of this title such as clear vision, solid waste
City /State: Portland, OR zip 97205 storage, non - conforming situations, signs, and tree
Primary Contact: Paul Riso removal may also be applicable depending on the type and
Phone: 503 - 223 -0500 Fax: 503 - 223 -2874 location of the proposed modifications.
E -Mail: Paul.Riso @lewisbuilds.com
1
Property Owner /Deed Holder(s)*:
(Attach list if more than one)
«The Benenson 68 Parkway Key TIC)) 212.867.0990 REQUIRED SUBMITTAL ELEMENTS
c'o Benenson CapitalPartners, LLC Phone:
«708 Third Avenue, 28`�Floon> (Applications will not be accepted without the
«New York, New York 10017» gyp' following required submittal elements)
* When the owner and the applicant are different people, the !421 Application Form
applicant must be the purchaser of record or a lessee in 421 Owner's Signature /Written Authorization
possession with written authorization from the owner or an Title Transfer Instrument or Deed
agent of the owner. The owner(s) must sign this application 1 . „
in the space provided on the back of this form or submit a Site Plan (4 Large Plans & One - Reduced to 8 z x 11")
written authorization with this application. 421 Applicant's Statement /Narrative (4 copies)
Filing Fee $627.00
Minor Modifications:
Minor Modifications are processed for permitted uses and
conditional uses. To review a modification as a Minor
Modification, the Director must first find that the expansion
or change does not invoke one or more of the criteria
discussed within Section 18.360.050(B) - Site Development FOR STAFF USE ONLY
Review or Section 18.330.020(B)(2) - Conditional Use. If the �
�IA
modification exceeds the maximum allowed under any one or Case No.(s):
more of the criteria, a Major Modification review is required.
Major Modifications are processed in the same manner as a Other Case No.(s):
new Site Development Review or Conditional Use Permit. I '1(.� Z g
Receipt No
Applicant's Statement. Date: � , l I3
The applicant's statement must include a summary of the
proposed changes. Criteria in either 18.360.050(B) or Application Accepted By:
18.330.020(B)(2) must be addressed with a detailed response Date Determined Complete: "15113
to each criterion. Failure to provide the information needed Reused 7/1112
to process the application would be reason to consider an ' `curpin`,masters land use applications ,minor modification app dots
application incomplete and delay review of the proposal.
City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503- 718 -2421 I www.tigard- or.gov I Page 1 of 2
To consider an application complete, you will need to submit ALL of the REQUIRED SUBMITTAL ELEMENTS as
described on the front of this application in the "Required Submittal Elements" box.
(Detailed Submittal Requirement Information sheets can be obtained, upon request, for all types of Land Use Applications.)
THE APPLICANT(S) SHALL CERTIFY THAT:
• The above request does not violate any deed restrictions that may be attached to or imposed upon the subject
property.
• If the application is granted, the applicant will exercise the rights granted in accordance with the terms and subject to all the
conditions and limitations of the approval.
• All of the above statements and the statements in the site plan, attachments, and exhibits transmitted herewith, are true; and
the applicants so acknowledge that any permit issued, based on this application, and may be revoked if it is found that any such
statements are false.
♦ The applicant has read the entire contents of the application, including the policies and criteria, and understands the
requirements for approving or denying the application.
SIGNATURES of each owner of the subject property.
DATED this 22nd d o f January , 20 13
Owner's Sig re 1. . �ti .r i�►` 4 /41 I Owner's Signature
cp,
Owner's Signature Owner's Signature
Owner's Signature Owner's Signature
City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 ' 503 -718 -2421 I www.tigard - or.gov I Page 2 of 2
1 111 CITY OF TIGARD RECEIPT
= 13 125 SW Hall Blvd., Tigard OR 97223
503.639.4171
TIGARD
Receipt Number: 190078 - 01/31/2013
CASE NO. FEE DESCRIPTION REVENUE ACCOUNT NUMBER PAID
MMD2013 -00008 Minor Modification to an Approved Plan 100 - 0000 -43116 $546.00
MMD2013 -00008 Minor Modification to an Approved Plan - 100 - 0000 -43117 $81.00
LRP
Total: $627.00
PAYMENT METHOD CHECK # CC AUTH. CODE ACCT ID CASHIER ID RECEIPT DATE RECEIPT AMT
Check 12489 AKOWACZ 01/31/2013 $627.00
Payor: Lease Crutcher Lewis
Total Payments: $627.00
Balance Due: $0.00
Page 1 of 1
G R
MACKENZIE' •
TABLE OF CONTENTS
Project Summary 1
II. Introduction 2
III. Proposed Development 2
IV. Evaluation Criteria 4
V. Conclusion 6
ATTACHMENTS
1. Exhibit A: Tax Map
2. Exhibit B:. Zoning Map Minor Modification
3. Exhibit C: Site Plan Type I Application
Applicant's Statement
To
City of Tigard
For
Comcast Technical
Operations Center West
Submitted
January 18, 2013
Project Number
2120451.01
GROUP MACKENZIE
Since 1960
RiverEast Center I PO Box 14310 I Portland, OR 97293
1515 SE Water Ave. Suite 100 I Portland, OR 97214
T 503.224.9560 I F 503.228.1285 I www.grpmack.com
GRQLIP
MACKENZIE'
I. PROJECT SUMMARY
Applicant: Comcast Cable
c/o Lease Crutcher Lewis
550 SW 12 Avenue
Portland, OR 97205
Contact: Paul Riso
(503) 223 -0500
Applicant Representative: Group Mackenzie
1515 SE Water Avenue, Suite 100
Portland, OR 97214
Contact: Brent Nielsen, PE
(503) 224-9560
Site: 11308 SW 68 Parkway
Tigard, OR 97223
Tax Lot: Map 1 S 136DA, Tax Lot 100
Acreage: 9.87 acres
Zoning: CG — General Commercial
MUE — Mixed -Use Employment
Comprehensive Plan
Designation: CG — General Commercial
MUE — Mixed Use Employment
Project Description: Tenant improvements with minor parking lot repairs and
modifications.
Request: Minor Modification — Type I Application
Code Sections Addressed: Section 18.360.050(B) — Site Development Review
H: \ Projects \212045101 \WP \13011 &Minor Mod Type I App.docx 1
G R O l!_P
MACKENZIE'
II. INTRODUCTION
The Lessor and applicant, Comcast Cable (Comcast), is proposing to improve the
existing commercial building, including minor adjustments and repairs to the site
exterior, at the subject site. The site and surrounding area is shown in the aerial photo
below. The affected tax lot includes Lot 100 of Map 1 S 136DA as shown on the
attached Tax map (Exhibit • A). The proposed development is intended to be
constructed in one phase. The subject site is zoned CG- General Commercial, and
MUE- Mixed -Use Employment, as shown on the attached Zoning Map (Exhibit B).
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H:\ Projects \212045101 \WP \130118 -Minor Mod Type I App.docx 2
G R QLIP
MACKENZIE'
III. PROPOSED DEVELOPMENT
The development proposed with this application includes site construction and
adjustments associated with interior tenant improvements at the existing commercial
building on the subject site. The proposed development includes adjustments to the
existing parking lot, landscaping, sidewalks, and stormwater drainage system. These
adjustments are identified in the attached site plan (Exhibit C).
PARKING LOT MODIFICATIONS
Comcast proposes to restripe two sections of the existing parking lot to accommodate
service trucks that have larger vehicle footprints than what the existing automobile
parking spaces will allow. In the north end of the parking lot, approximately 20
existing parking spaces will be restriped for 15 truck spaces. To accommodate the
longer parking spaces, the landscape islands just south of the truck spaces will be
adjusted to maintain a 24 -foot wide drive aisle to meet City of Tigard standards.
Near the southwest corner of the site, approximately 10 existing parking spaces will
be re- striped for 6 truck spaces. The existing parking lot will be expanded by
approximately 8 feet to allow for 11 new car parking spaces and a 24 -foot wide drive
aisle.
Existing accessible parking spaces will be re- striped at two locations near the
northeast corner of the building. Additionally, 6 existing accessible parking spaces
near the southeast corner of the building that are too steep will be reconstructed to
bring them into compliance with current code requirements.
Two new secure entry gates are proposed at the entrances to the parking lot just south
of the building. An 8 -foot high chain link fence will be added along the southern edge
of the parking area to secure the building perimeter.
SIDEWALK MODIFICATIONS
The applicant proposes to construct a concrete sidewalk ramp leading from the service
entrance door at the north end of the building to the north parking lot. The ramp will
be 5 -feet wide and designed to meet current ADA standards for ramp slope and
handrail requirements.
LANDSCAPING MODIFICATIONS
As noted above, the north parking lot modification will require adjusting three
existing landscape islands to maintain a 24 -foot wide drive aisle in front of the new
truck spaces. The landscape modifications will result in removing approximately
600 SF of island area, as well as 3 maple trees. The applicant proposes to plant three
new 2.5" minimum caliper maple trees in the adjusted planters to replace the removed
trees.
Additional minor landscape revisions will be made around the service entrance
sidewalk ramp. Approximately three existing small deciduous trees will be removed to
accommodate the new ramp and slope adjustments. Disturbed areas around the ramp
will be seeded to re- establish ground cover.
H: \ Projects \212045101 \WP \13011 &Minor Mod Type I App.docx 3
•
GROUP
' MACKENZIE'
Finally, a utility pole training yard will be installed in the existing sloped landscape
area south of the building. This facility will primarily be mulched or bark - covered and
will feature utility poles set in the ground for employee training purposes. The
existing topography and surface drainage patterns will be generally maintained.
STORMWATER DRAINAGE MODIFICATIONS
For the proposed parking lot adjustments that require new or reconstructed pavement,
pervious asphalt pavement will be used. The two large pavement areas at the
accessible parking area and southern parking expansion will utilize subsurface
drainage collection pipes to convey infiltrated stormwater to the existing on -site storm
drain system.
The proposed site improvements will result approximately 970 SF of new or
redeveloped impervious surface, primarily due to the new concrete sidewalk ramp.
Since this area is less than the 1,000 SF limit which requires new stormwater
treatment under Clean Water Services standards, no additional stormwater
modifications are proposed.
H: \Projects \212045101 \SNP\ 130118 -Minor Mod Type I App.docx 4
G R Q.. P
' MACKENZIE
IV. EVALUATION CRITERIA
This section of the narrative provides detailed responses to the approval criteria
associated with the requested Minor Modification Application, as listed in Section
18.360.050.
1. An increase in dwelling unit density, or lot coverage for residential development.
Response: This requirement applies to residential development. The proposed
development is for commercial property. This standard does not apply.
2. A change in the ratio or number of different types of dwelling units.
Response: The proposed building improvements do not include dwelling units. This
standard does not apply.
3. . A change that requires additional on -site parking in accordance with Chapter
18.765.
Response: The proposed building improvements do not include expansion of an
existing use (18.765.020.B), nor constitute a proposed change in use for the site
(18.765.020.C). The proposed parking revisions will result in a net reduction of
approximately 9 spaces. Additional parking changes are not required; therefore this
standard is met.
4. A change in the type of commercial or industrial structures as defined by the
Uniform Building Code.
Response: The proposed building improvements will not change the structure type.
This standard is met.
5. An increase in the height of the building(s) by more than 20 %.
Response: The proposed building improvements will not change the structure height.
This standard is met.
6. A change in the type and location of accessways and parking areas where off -site
traffic would be affected.
Response: The proposed site improvements will not change the type or location of the
existing driveway. The proposed parking lot improvements will modify the drive
aisles at two locations, but the surrounding pavement areas will be modified to
accommodate 24 -foot drive aisle widths meeting the requirements for compact spaces
based on Section 18.765.040. This standard is met.
7. An increase in vehicular traffic to and from the site and the increase can be
expected to exceed 100 vehicles per day.
Response: The proposed improvements will not result in a substantial increase in
vehicle trips. A specific traffic impact study has not been conducted for the proposed
development, but since the proposed use is not changing there is not expected to be a
substantial change from existing traffic patterns at the site. This standard is met.
8. An increase in the floor area proposed for a nonresidential use by more than
10% excluding expansions under 5,000 square feet.
Response: The proposed development does not include building expansions. This
standard is met.
H:\ Projects \212045101 \WP \130118 -Minor Mod Type I App.docx 5
GRQ.U_P
MACK ENZIE
9. A reduction in the area reserved for common open space and /or usable open
space which reduces the open space area below the minimum required by this
code or reduces the open space area by more than 10 %.
Response: The proposed development does not include reduction in the common or
usable open space on site. This standard is met.
10. A reduction of project amenities below the minimum established by this code or
by more than 10% where specified in the site plan:
a. Recreational facilities;
b. Screening; and /or
c. Landscaping provisions.
Response: The proposed development will not affect recreational facilities or existing
screening. Approximately 3,900 SF of on -site landscaping area will be removed,
which constitutes less than 1% of the total site. The remaining landscape area on site
exceeds the required minimum 10% coverage. This standard is met.
11. A modification to the conditions imposed at the time of site development review
approval which are not the subject of Subsections B.1 through 10 above of this
section.
Response: The proposed development does not affect areas of the site that are covered
by additional conditions of review from the original site development. This standard is
met.
H: \Projects \212045101 \WP \1301 18 -Minor Mod Type I App.docx 6
GRG_ .P
MACKENZIE
V. CONCLUSION
The applicant requests Minor Modification Approval for the proposed site and
building improvements at the property located at 11308 SW 68th Parkway in Tigard,
Oregon. As described in the previous narrative, the proposed development meets the
applicable City of Tigard standards for a Minor Modification Type 1 Development and
warrants approval.
H:\ Projects \212045101 \WP \130118 -Minor Mod Type I App.docx 7
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1 I Summary I Environmental Reds I Wetlands I Habitat I Sensitive Lands I Tree Groves I Tree Permits I Annexations 1 2035 TSP I CIP I I
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Planning Summary
Tax Lot Summary
L Tax ID Owner Owner 2 Owner 3 Owner Address Owner Owner Owner Acres
Number City State ZIP
BENENSON 68TH PARKWAY BY PROVIDENCE HEALTH ATIN: PROPERTY 1235 NE 47TH
15136DA00100 KEY LLC, T SYSTEM MANAGEMENT STE 160 PORTLAND OR 97213 9.87
Tigard Zoning
L Zoning Description Type Overlay
MUE Mixed Use Employment MU
C -G General Commercial COM
Tigard Comp Plan
L Corn Plan Designation Description
MUE Mixed Use Employment
CG General Commercial
Community Plan Areas
I- Name '
Tigard Triangle District
A or B Parking Zone
L Parking Zone
B
A
Subdivisions Partitions
L Project Year Lots Average House Original Sensitive Acres Buildable
Type Case No Name Name Approved Approved Acres Zoning Lot Size Demolished Lots Lands Reivew Lands Inv
MLP MLP1999- MLP1999- POLLOCK 0 0.00 0 0 0 0.00
00011 00011 PARTITION
CWS FEMA 100 Yr Flood: No
RLIS Slopes Greater than 25 %: Yes
Tigard Local Wetland Inventory EXHIBIT B
I- No records found.
CWS Potential Impact: Yes ZONING MAP
wvw .ti /mox6_multimap/ index .cfm?fuseaction = planning.summar 1/2
/10/13 City of Tigard, Oregon
CWS'Vegetated Corridor: Yes
Goal 5 Safe Harbor: No
Goal 5 Sig Hab Areas
L Restriction Level
Moderately Limit
Lightly Limit •
Sewer Reimbursement District
•
L No records found.
Forest Deferral: No
CONTACT US
City of Tigard, 13125 SW Hall Blvd, Tigard, OR 97223, 503- 639 -4171
Map and Directions I Location and Hours of Operation
AFTER -HOURS CONTACT
Public Works/Water: 503- 639 -1554 I Police Non - Emergency: 503- 629 -0111
Questions, comments, suggestions? Fill out the feedback form.
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RECEIVED
JAN 31 2013
CITY OF TIGARD
PLANNING /ENGINEE
LEASE
LESSOR: THE BENENSON 68 PARKWAY KEY LLC
LESSEE: COMCAST OF TUALATIN VALLEY, INC.
PROPERTY: 11038 SW 68 PARKWAY
TIGARD, OREGON
Jay
DATED: JUNE- /? , 2012
GOLDFARB & FLEECE LLP
345 PARK AVENUE
NEW YORK, NEW YORK 10154
00277970.12
TABLE OF CONTENTS
1. Leased Property; Term of Lease; Net Lease 5
2. Basic Rent. 7
3. Additional Rent 8
4. No Right to Set -Off, Lessee to Remain Obligated, etc 8
5. Invalidity of Particular Provisions 9
6. Use of the Property 9
7. Lessee's Equipment 9
8. Alterations and Additions by Lessee 10
9. Impositions. 12
10. Compliance with Legal and Insurance Requirements, etc 13
11A.Condition of Property; Repairs, etc 14
11B. Lessor Work. 16
12. Replacement of Equipment 17
13. No Claims Against Lessor 18
14. Discharge of Liens, etc 18
15. Contests 18
16. Utilities and Services 19
17. Insurance. 19
18. Policy Provisions, Delivery of Policies, etc. 20
19. Damage and Destruction; Restoration. 22
20. Proceeds Held By Depositary. 23
21. Condemnation or Eminent Domain. 24
22. Indemnification of Lessor. 26
23. Assignment and Subletting. 27
24. No Usury. 31
25. Intentionally Omitted 31
26. Performance on Behalf of Lessee. 31
27. Entry by Lessor 32
28. Events of Default/Remedies. 32
29. Repossession, Reletting, etc., by Lessor. 35
30. Survival of Lessee's Obligations 35
31. Lessee's Waiver of Rights. 35
32. No Waiver, etc., by Lessor. 35
33. No Adverse Possession 36
34. Lessor's and Lessee's Remedies Cumulative, etc. 36
35. Subordination, Attornment. 36
36. Surrender of Property 37
37. Quiet Enjoyment. 38
38. Definition and Exculpation of Lessor/Limitation of Liability. 38
39. Estoppel Certificate by Lessee 39
40. Estoppel Certificate by Lessor 39
41. Acceptance of Surrender 40
42. Notices, etc. 40
43. Late Charge. 41
00277970.12 1
44. Miscellaneous. 41
45. Broker. • 42
46. Separability. 42
47. Lessee to Comply with Covenants, etc. 42
48. Headings. 42
49. Trustee Exculpation. 42
50. Lessee's Renewal Options 42
51. Extension of Time for Unavoidable Delays. 46
52. Laws of Oregon 47
53. Financial Statements. 47
54. Actions by Holder. 47
55. Hazardous Substances 47
56. Lessor's Defaults. • 48
57. Intentionally Omitted. 49
58. Lessee Work Allowances 49
59. Lessor's Additonal Contribution. 54
•
00277970.12 I1
•
-) t#f�
LEASE, dated as of Jae l' , 2012, between The Benenson 68 Parkway Key LLC, having
an office at c/o The Benenson Capital Partners, LLC, 708 Third Avenue, 28th Floor, New York,
New York 10017 (referred to herein as "Lessor ") and Comcast of Tualatin Valley, Inc., a an
Oregon corporation having an address at 9605 SW Nimbus Avenue, Beaverton, Oregon 97008
(referred to herein as "Lessee ").
WITNESSETH:
Definitions
•
For the purposes of this Lease, unless the context otherwise require s, the following words
and phrases shall have the following meanings:
Basic Rent: as defined in Section 2.
Commencement Date: The date which is the later to occur of: (a) the
date which is the earlier to occur of (i) Substantial Completion (as defined
below) of Lessee's Initial Installation (as defined in Section 8) and (ii) one
hundred fifty (150) days after the Delivery Date (as defined below); and
(b) Substantial Completion of Lessor's Work. However, if the Substantial
Completion of Lessor's Work is delayed due to the act or omission of
Lessee (a "Lessee Delay "), Lessor's Work shall be deemed Substantially
Completed on the date Lessor's Work reasonably would have been
completed absent such Lessee Delay. Lessor shall notify Lessee of the
occurrence of any Lessee Delay within two (2) business days of the
occurrence thereof.
CPI: The Consumer Price Index, All Urban . Consumers, Portland - Salem,
Oregon for all items, published by the United States Department of Labor,
Bureau of Labor Statistics, in which 1967 equals one hundred (100)
( "Price Index "). If the Price Index is changed so that the Basic year is
altered, the Index will be converted in accordance with the conversion
factor published by the United. States Department of Labor, Bureau of
Labor Statistics. If the Price Index is discontinued or revised during the
term, then the government index or computation with which it is replaced
will be used in order to obtain substantially the same result as would be
obtained if the Price Index has not been discontinued or revised.
Delivery Date: The date upon which Lessor delivers possession of the
Property to Lessee. The projected Delivery Date is January 2, 2013.
Depositary: the Holder or an entity selected by the Holder or, if there is
at the time no Mortgage, any trust company, national title insurance
company (or state branch thereof) or federally or state chartered bank
00277970.12 I •
mutually and reasonably acceptable to Lessor and Lessee.
Environmental Laws: shall include all Legal Requirements (along with
common law or strict liability provisions, and any judicial or
administrative interpretations thereof, including any applicable judicial or
administrative orders or judgments) relating to health, safety, industrial
hygiene, Hazardous Materials, pollution, the environment, or related
matters including, but not limited to each of the following, as enacted as of
the date hereof or as hereafter amended; the Comprehensive
Environmental Response, Compensation and Liability Act of 198Q, 42
U.S.C. §9601 et seq.; the Resource Conservation and Recovery Act of
1976, 42 U.S.C. §6901 et seq.; the Toxic Substance Control Act, 15
U.S.C. §2601 et seq.; the Water Pollution Control Act (also known as the
Clean Water Act), 33 U.S.C. §1251 et seq.; the Clean Air act, 42 U.S.C.
§7401 et seq.; and the Hazardous Materials Transportation Act, 49 U.S.C.
§1801 et seq.
Event of Default, Events of Default: as defined in Section 28.
Guarantor: Comcast Corporation, a Pennsylvania corporation.
Guaranty: The Guaranty of Lease executed by Guarantor on Rift ,e
2012 whereby Guarantor guaranteed the payment and performance of
Lessee's obligations under this Lease.
Hazardous Materials: means any hazardous or toxic waste, hazardous or
toxic substance, pollutant, contaminant, asbestos, oil or petroleum product,
or other solid, liquid, or gaseous substance or product that is currently or
hereafter listed, regulated, or designated as, or is determined to be (in
whole or in part), toxic, hazardous, or harmful (or words of similar
meaning and regulatory effect), or with respect to which governmental
regulatory obligations (including, without limitation, recordkeeping,
remedial or closure obligations) may be imposed, under any
Environmental Laws.
Mortgage: as defined in Section 35A. The term Mortgage shall include a
deed of trust, and the beneficiary thereof shall be deemed the holder of the
Mortgage.
Holder: The holder(s) or beneficiary(ies) from time to time of the
Mortgage.
Impositions:. all taxes (including real, ad valorem and personal property
taxes), all general and special assessments (including, without limitation,
assessments for public improvements or benefits whether or not
commenced or completed during the Demised Term), water, sewer and
00277970.12 2
•
other rents, rates and charges, excises, levies, inspection and license fees,
permit fees and other authorization fees and all other charges whether of a
like or different nature (in each case whether general or special, ordinary
or extraordinary, or foreseen or unforeseen), of every character (including
all penalties and interest thereon) which at any time prior to, during or in
respect of the Demised Term (hereinafter defined) may be assessed,
levied, confirmed or imposed on or in respect of or be a lien upon (a) the
Property or any part thereof or any rent therefrom or any estate, right or
interest therein, or (b) any occupancy, use or possession of the Property or
any part thereof, or (c) the revenues, rents, issues, income and profits
arising from the Property. Impositions shall not include any franchise,
excise, corporate, estate, inheritance, succession or capital levy or similar
tax of Lessor or any income tax of Lessor determined on the basis of its
income.
Improvements: as defined in Section 1A.
Insurance Requirements: all terms of each insurance policy required to
be carried by Lessee (or if applicable, Lessor) under this Lease and the
requirements of the issuer of such policy, and all orders, rules, regulations
and other requirements of The Insurance Services Office ( "ISO ") (or any
other body exercising functions applicable to the establishment of rates of
insurance premiums and coverage terms not addressed by ISO) applicable
to or covering the Property or any part thereof or any use or condition
thereof, and whenever Lessee shall be engaged in making any alterations,
the term "Insurance Requirements" shall be deemed to include a
requirement that all insurance policies shall contain an . endorsement
referring to such alterations.
Legal Requirements: all statutes, codes, laws, acts, ordinances, by -laws,
orders, judgments, decrees, injunctions, rules, regulations, permits,
licenses, authorizations, directions and requirements of all federal, state,
county, municipal and other governments, departments, commissions,
boards, courts, authorities, officials and officers, foreseen or unforeseen,
ordinary or extraordinary (including, without limitation, those relating to
pollution or the protecting of the environment), which now or at any time
hereafter may be applicable to the Property or any part thereof, or any of
the streets, alleys, passageways, sidewalks, curbs, gutters, vaults and vault
spaces, and railroad sidings adjoining the Property or any part thereof, or
•
any use, manner of use or condition of the Property or any part thereof,
whether or not the condition is in existence at the commencement of the
Demised Term and, in addition, the procurement and maintenance during
the Demised Term of each and every permit, license, certificate or other
authorization required in connection with the lawful and proper use of the
Property or required in connection with any Improvements now or
hereafter erected.
00277970.t2 • 3
•
•
Lessee's Equipment: all machinery and fixtures (whether or not affixed
to the Property), furniture, furnishings and other personal property (a)
installed by Lessee or its permitted sublessees or permitted occupants in,
on or about the Property, and (b) not used or procured for use in
connection with the operation, maintenance and protection of the Property,
as such, but used or procured for use directly in connection with the
business conducted thereon. Excluded , from the term "Lessee's
Equipment" are such of the foregoing items which are presently on or in
the Property, including air conditioning equipment hereafter placed on or
in the Property by Lessee or Lessor (such excluded items being referred to
herein as "Lessor's Equipment ").
Lessee's Existing Lease: That certain Lease dated March 11, 2003 by
and between CH Realty III/Portland Industrial, L.L.C. (the "Existing
Landlord ") and Lessee, as amended by Amendment No. 1 dated
November 11, 2004, Amendment No. 2 dated January 11, 2007 and
Amendment No. 3 dated , 2012 for 43,363
square feet of space in the building located at 10831 SW Cascade Avenue,
Tigard, Oregon.
Lessor's Equipment: as defined in the immediately preceding sentence
and, in addition, all right, title and interest of Lessor in and to those
fixtures, machinery and equipment used or procured for use in connection
with the operation, maintenance and protection of the Property including,
without limiting the generality thereof, plumbing, heating, lighting,
ventilating and air conditioning systems, but excluding therefrom any
additional or supplemental systems installed to meet Lessee's special
requirements in operating Lessee's business on the Property, as
distinguished from operation of the Property.
Lessor's Work: As defined•in Section 11B.
Permitted Exceptions: the permitted exceptions referred to in Section 1.
Prime Rate: the rate of interest announced publicly by Citibank, N.A. or
its successor, from time to time, as Citibank, N.A.'s or such successor's
Basic rate, or if there is no such Basic rate, then the rate of interest
charged by Citibank, N.A. or such successor to its most credit worthy
customers on commercial loans having a ninety (90) day duration.
Property: as defined in Section 1B.
Substantial Completion: As to any construction performed by any party,
"Substantial Completion" or "Substantially Completed" means that such
work has been completed, as reasonably determined by the architect which
00277970.12 4
designed the work, in accordance with (a) the provisions of this Lease
applicable thereto, (b) the plans and specifications for such work, and (c)
all applicable Legal Requirements, except for minor details of
construction, decoration and mechanical adjustments, if any, the
noncompletion of which does not materially interfere with Lessee's use of
the Property or which in accordance with good construction practice
should be completed after the completion of other work in the Property
( "Punch List Items "), and that Lessee has received a certificate of
occupancy (either temporary or permanent) for the Property authorizing
the occupancy thereof by Lessee for the Primary Use.
Taking: a taking of all or part of the Property or any interest therein or
right accruing thereto, as the result of, or in lieu or in anticipation of,
condemnation or eminent domain proceedings, or a change of grade
affecting the Property or any part thereof, pursuant to any general or
special law or because of the temporary requisition of the use or
occupancy of the Property or any part thereof by any civil or military
governmental authority.
Threshold Sum: Two Hundred Fifty Thousand and 00 /100
($250,000.00) Dollars, which amount shall be increased each January 1st
during the Demised Term by percentage increase in CPI over the prior
January 1St
1. Leased Property: Term of Lease; Net Lease.
A. Upon and subject to the terms and conditions herein set forth,
Lessor leases and demises to Lessee, and Lessee rents from Lessor, the following property (the
"Property "), which shall include:
the real property described on Exhibit A annexed hereto and made a part
hereof commonly known as 11038 SW 68 Parkway, Tigard, Oregon,
together with all improvements and betterments, including, without
limitation, the existing building located thereon (the "Building ") (which
the parties stipulate and agree contains 87,250 rentable square feet) all
building systems, Lessor's Equipment, Lessee's Equipment, boilers and
machinery, and all landscaping, parking areas and sidewalks and other
improvements now or hereafter located on such real property (sometimes
referred to herein as the "Improvements ").
B. This Lease shall be for an initial term (the "Demised Term ")
commencing on the Commencement Date, and expiring at midnight on the day which is the day
immediately prior to the ten (10) year and six (6) month anniversary of the Commencement Date
(referred to herein as the "Expiration Date "), unless sooner terminated pursuant to the terms,
covenants and conditions of this Lease or pursuant to law. In the event Lessee exercises its
rights to renew the Demised Term for a Renewal Term, such Renewal Term shall be deemed
00277970.12 5
apart of the Demised Term. Upon request of either party hereto, after the Commencement Date
has been established, Lessor and Lessee shall execute and deliver a memorandum confirming the
Delivery Date, the Commencement Date, and the Expiration Date. All of Lessee's obligations
under this Lease shall be effective and binding upon Lessee from and after the Delivery Date,
excluding only Lessee's obligations to pay Basic Rent, which shall commence on the
Commencement Date.
C. It is the intention of the parties hereto that the obligations of Lessee
hereunder shall be separate and independent covenants and agreements, and that Basic Rent,
additional rent and all other sums payable by Lessee hereunder shall continue to be payable in all
events, and that the obligations of Lessee hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated pursuant to an express
provision of this Lease. This is a net Lease and Basic Rent, additional rent and all other sums
payable hereunder by Lessee shall be paid without notice or demand, and without setoff,
counterclaim, recoupment, abatement, suspension, deferment, diminution, deduction, reduction
or defense, except as otherwise specifically set forth herein. This Lease shall not terminate and
Lessee shall not have any right to terminate this Lease, during the Demised Term (except as
otherwise expressly provided herein).
D. This Lease and Lessor's rights hereunder are subject to all liens,
charges, encumbrances, encroachments, agreements, and other matters of title as of the date of
this Lease and all such other matters from and after the date hereof to which Lessee shall have
consented (all of the aforesaid items shall be referred to in this Lease as "Permitted Exceptions ").
Lessor represents and warrants to Lessee that none of the Permitted Exceptions prohibit or
adversely affect Lessee's occupancy of the Property for the Primary Uses hereunder, and to the
knowledge of Lessor, there are no material violations or defaults under the Permitted Exceptions.
E. If, for any reason, the Delivery Date has not occurred by June 1,
2013, in such event, Lessee shall have the right, but not the obligation, as its sole and exclusive
remedy, to terminate this Lease ( "Lessee's Outside Date Termination Right ") upon thirty (30)
days notice to Lessor and if the Delivery Date does not occur by the end of such thirty (30) day
period, this Lease shall terminate on the date set forth in Lessee's notice, in which event this
Lease shall be null and void and neither Lessor nor Lessee shall have any further rights,
liabilities or obligations hereunder. If Lessee elects to terminate this Lease pursuant to this
paragraph, then Lessor shall reimburse Lessee within thirty (30) days of written demand for up to
$200,000.00 of all actual soft costs, fees and expenses (including reasonable attorneys' fees) of
any type or nature whatsoever which lessee has incurred in connection with the preparation and
negotiation of this Lease and with respect to all design and, development work relating to the
preparation of the Property for Lessee's use and occupancy (collectively, the "Lessee's Pre-
Development Costs "), subject to receipt of invoices by Lessor in reasonably sufficient detail with
respect to the foregoing actual soft costs, fees and expenses. The foregoing reimbursement
obligation shall survive the termination of this Lease. Notwithstanding the foregoing, neither
Lessor nor any guarantor, shall be obligated to reimburse Lessee for any Lessee's Pre -
Development Cost exceeding $200,000.00 in the aggregate.
F. In consideration of Lessee's agreement to delay the Delivery Date
00277970.12 6
until January 2, 2013, Lessor shall reimburse Lessee for the (i) Base Rent and (ii) additional rent
with respect to Operating Expenses (only) becoming due and payable under Lessee's Existing
Lease from the Commencement Date of this Lease through and including the expiration of the
term of the Existing Lease, which is December 31, 2013 (the `Existing Lease Rent
Reimbursement Obligation "). Lessor shall not be obligated to reimburse Lessee for any Base
Rent in excess of $28,468 per month or any additional rent with respect to Operating Expenses in
excess of $7,000 per month. No other items of rent or other charges under the Lessee's Existing
Lease shall be reimbursable by Lessor. Lessor shall so reimburse Lessee within 30 days
following demand therefore, which shall be made monthly and accompanied by copies of the
applicable bills or invoices from the Existing Landlord. Lessor and Lessee acknowledge and
agree that the Base Rent under the Existing Lease for the period of January 1, 2013 through
December 31, .2013 is currently fixed at $28,468 per month and the reasonably estimated
additional rent on account of Operating Expenses is $6,976 per month during such period. In the
event Lessor fails to reimburse Lessee within such thirty (30) day period and such failure
coptinues for ten (10) business days following notice to Lessor of such failure, Lessee may offset
such unreimbursed amount against the next installments of Basic Rent coming due under this
Lease.
2. Basic Rent.
A. Lessee will pay to Benenson Capital Partners, LLC, as agent for
Lessor (and who may act on behalf of Lessor in all instances), without notice or demand, in such
coin or currency of the United States of America as at the time shall be legal tender for the
payment of public and private debts, at the address of such agent listed in Section 42, or at such
other place or to such agent as Lessor or Benenson Capital Partners, LLC from time to time may
designate in writing, a net basic rental (referred to herein as the "Basic Rent ") during the
Demised Term at the annual rental rates set forth below. The First "Lease Year" shall
commence on the Commencement Date and end on the last day of the calendar month preceding
the month in which the first anniversary of the Commencement Date shall occur. Each
succeeding "Lease Year" shall commence on the day following the end of the preceding Lease
Year and shall extend for twelve (12) consecutive months; provided the last Lease Year shall end
on the Expiration Date. If the Commencement Date or the Expiration Date shall occur on a date
other than the first (1st) day of a calendar month, Basic Rent for such month shall be pro -rated
based on a thirty (30) day month.
Rental Period Basic Rent (Annually) Basic Rent (Monthly)
1 Lease Year $1,134,250.00 . $94,520.83
2nd Lease Year $1,162,606.25 $96,883.85
3` Lease Year $1,191,671.41 $99,305.95
4 Lease Year $ 1,221,463.19 $101,788.60
5 Lease Year $1,251,999.77 $104,333.31
6 Lease Year $1,283,299.77 $106,941.65
00277970.12 7
•
•
7 Lease Year $1,315,382.26 $109,615.19
• 8 Lease Year $1,348,266.82 $112,355.57
9 Lease Year $1,381,973.49 $115,164.46
10 Lease Year $1,416,522.82 $118,043.57
1 1th Lease Year (partial Lease $1,451,935.90 $120,994.66
Year)
First Renewal Term See Section 50 See Section 50
(Lease Years 11 -15
Second Renewal Term See Section 50 See Section 50
(Lease Years 16 — 20)
B. Within thirty (30) days following Lessee's receipt of a fully
executed copy of this Lease, Lessee shall pay to Lessor an amount equal to $47,260.42 as
Lessee's payment of the 1 s month's Basic Rent (as reduced pursuant to the conditional rent
abatement described below) due under this Lease. Provided Lessee is not then in monetary
default beyond all applicable notice and cure periods, Lessee shall be entitled to a conditional
rent abatement of the Monthly Basic Rent (only) in the amount of fifty (50 %) percent of the
Monthly Basic Rent due for . each of the first twelve (12) full calendar months of the Demised
Term following the Commencement Date (i.e., Lessee shall only be required to pay fifty (50 %)
percent of the Monthly Basic Rent for each of the first twelve (12) full calendar months of the
Demised Term) but during such period Lessee shall otherwise be required to comply with all of
the other terms, covenants and conditions of this Lease on Lessee's part to be observed and
performed, including, but not limited to, the obligation to pay all Impositions and make all other
payments pursuant to the -provisions of this Lease. If at any time during the Demised Term
Lessee an Event of Default shall occur, then the total sum of the Basic Rent so conditionally
abated by operation of the foregoing provisions of this paragraph shall become immediately due
and payable by Lessee to Lessor.
3. Additional Rent.
Lessee will also pay, as additional rent, all other reasonable amounts,
costs, expenses, liabilities and . obligations which Lessee herein assumes or agrees to pay, and
will reimburse Lessor for any payments thereof made by Lessor, and, in the event of any failure
by Lessee to pay any of the same, Lessor shall have all rights, powers and remedies provided for
herein as in the case of nonpayment of the Basic Rent.
4. No Right to Set -Off, Lessee to Remain Obligated, etc.
Lessee will pay the Basic Rent and all additional rent and other sums
payable hereunder without notice or demand, without regard to any counterclaim, right of set -off,
deduction or defense Lessee may have against Lessor or any other party (including any holder of
the Mortgage), and without abatement, suspension, deferment, diminution or reduction by reason
of, and the obligations of Lessee hereunder shall not be in any way affected by (a) any
restriction, prevention or curtailment of or interference with any use of the Property or any part
00277970.12 8
thereof as a result of any Legal Requirement or Taking or otherwise (except as expressly
provided herein); or (b) any damage to or destruction of the Improvements or any part thereof
(except as expressly provided herein).
5. Invalidity of Particular Provisions.
If any term of this Lease or any application thereof shall be invalid or
unenforceable, the remainder of this Lease and any other application of such term shall not be
affected thereby.
6. Use of the Property.
Lessee may use the Property only for general office use, a data and
telecommunications center (the "Primary Use ") and/or an employee training center for job
functions performed by Lessee's employees, and any other uses permitted by law (the Primary
Use, the use for the training center and such other uses permitted by law, the "Permitted Use ")
and for no other use or purpose whatsoever. Lessor acknowledges that Lessee will have the
exclusive use of all parking areas on the Property and the right to install fencing and gates to
service the parking areas. Further, Lessee may use a portion of the Property of approximately
four hundred (400) square feet for training Lessee's employees how to safely climb utility poles
and install and maintain equipment on such poles (the "Pole Training Use "). Lessee shall have
the right to select its own telecommunications provider and the right to install its own fiber optic
and broadband network on the Property provided all such work is performed in accordance with
the terms of this Lease and in compliance with all Legal Requirements. Except as expressly set
forth in this Lease, Lessor makes no representation or warranty with respect to the condition of
the Property or its fitness or availability for any particular use, and Lessor shall not be liable for
any Iatent or patent defect therein. Lessee will not at any time use or occupy or permit any
occupancy or use of any part of the Property which violates any Legal Requirement or
reasonable Insurance Requirement. Lessee's right to use the Property for the Permitted Uses and
the Pole Training Use shall be subject to Lessee's compliance with all Legal Requirements and
Permitted Exceptions. Notwithstanding the foregoing or anything to the contrary contained in
this Lease, Lessee shall not use the Property or permit the use of the Property for any of the uses
or purposes described in Exhibit E attached hereto (or of a nature which are similar to such use)
(the "Prohibited Uses ") or any use which is substantially similar to the Prohibited Uses.
7. Lessee's Equipment.
All Lessee's Equipment shall remain the property of Lessee, provided that
any of Lessee's Equipment not removed by Lessee at its expense within 5 business days after
any termination of this Lease shall be considered abandoned by Lessee and may be appropriated,
sold, destroyed or otherwise disposed of by Lessor without notice to Lessee and without
obligation to account therefor, and Lessee will. pay Lessor upon demand all reasonable costs and
expenses incurred by Lessor in removing, storing or disposing of the same. Lessee will promptly
repair at its expense all damage to the Property caused by any removal of Lessee's Equipment
therefrom, whether effected by Lessee or Lessor. Lessor shall not be responsible for any loss of
or damage to Lessee's Equipment.
00277970.12 9
8. Alterations and Additions by Lessee.
A. Lessee, at its expense, may make any alterations of and additions
to the Improvements and may erect or install in or upon or in connection with the Property,
buildings, structures, improvements, fixtures, machinery, apparatus and equipment, provided that
in all cases (including alterations or additions involved in any repair pursuant to this Section or
Sections 11, 19 or 21 E) the alteration, addition, erection or installation (herein collectively called
the "alteration" or "alterations ") (a) shall not reduce the gross square foot floor area of the
Improvements, (b) shall not adversely affect the structural soundness of the Improvements, (c)
shall be effected with due diligence, in a good and workmanlike manner and not in violation of
any Legal Requirement or Insurance Requirement in any material respect, subject however to the
provisions of the second paragraph of Section 10 hereof with respect to violations of an
immaterial respect, or any Permitted Exception, (d) shall be promptly and fully paid for by
Lessee, and (e) shall be made, in the case of (i) structural alterations or (ii) any other alterations
requiring a building permit which pursuant to Legal Requirements must be signed by Lessor and
the aggregate estimated cost of which in any one instance exceeds the Threshold Sum (any
alteration described in the foregoing clauses (i) or (ii), a "major alteration "), in accordance with
the detailed plans and specifications approved by Lessor and the Holder (which approval shall
not be unreasonably withheld, conditioned or delayed so long as all of the foregoing
requirements have been satisfied). All alterations requiring a building permit shall be performed
under the supervision of an architect or engineer reasonably satisfactory to Lessor and Holder.
Lessee shall reimburse Lessor for all reasonable out -of- pocket costs and expenses incurred by
Lessor in reviewing Lessee's plans and specifications for any major alterations, including,
without limitation, architects' and engineers' fees and said cost shall not exceed $2,000.00 in the
aggregate. Any alterations affecting the roof of the building shall be deemed major alterations
and shall be performed by Lessor's designated roofing contractor and in such a manner so as to
not affect Lessor's roof warranty with the exception of the Roof Work (as defined in Section
8B). All alterations (other than those involving Lessee's Equipment) shall become the property
of Lessor upon the Expiration Date or sooner termination of the Demised Term under the
provisions hereof, unless Lessee shall remove such alterations prior to the Expiration Date, in
which event Lessee shall, at its own cost and expense, repair all damage to the Property caused
by the removal and restore the affected portions to a reasonably good order and condition.
Lessee shall give Lessor at least thirty (30) days' prior notice in writing before commencing
construction of any kind on the Property so that Lessor may post and maintain notices of
nonresponsibility on the Property. Promptly following the Substantial Completion of each major
alteration, Lessee shall • deliver to Lessor final "as- built" plans for such major alteration,
including, without limitation, any expansion of the Building. Lessee shall not make any
alteration (excluding the Lessee's Initial Installation) at a cost for labor and materials (as
reasonably, estimated by Lessor's architect, engineer or contractor) in excess of One Million
Dollars ($1,000,000.00), either individually or in the aggregate with any other alterations
constructed in any particular period of twelve (12) consecutive months, prior to Lessee's
delivering to Lessor, such security for the timely payment by Lessee for such alterations as may
be reasonably required by Lessor or any Holder. Notwithstanding the foregoing, Lessee shall not
be required to provide any such security so long as (i) Lessee maintains a tangible net worth of at
least one hundred (100x) times the reasonably estimated cost of the alteration or (ii) the Guaranty
given by Guarantor (or its successor) remains in full force and effect.
00277970.12 10
B. From and after the Delivery Date, Lessee may, at Lessee's cost and
expense (but subject to the Contributions as set forth in Section 58 of this Lease), perform
various alterations to the Property and the Building as Lessee deems necessary for Lessee's
occupancy and use of the Property and the Building and conduct of its business therein. Such
alterations (referred to as "Lessee's Initial Installation ") shall be deemed major alterations . and .
shall be made and performed in accordance with the provisions of this Lease, including, without
limitation, the provisions of this Section 8. Lessee shall prosecute Lessee's Initial Installation to
completion with all reasonable diligence. Further, concurrently with the performance of
Lessee's Initial Installation Lessee shall perform certain major repairs to the roof of the Building
or replace the roof of the Building (such major repairs or replacement of the roof, the "Roof
Work "), in either case, which repairs or replacement shall be accompanied by a commercially
reasonable warranty. The Roof Work shall be deemed a major alteration. Lessee shall be solely
responsible, at Lessee's sole cost and expense, for the repair, maintenance and if necessary,
replacement of the roof (including, without limitation, membranes and all roofing systems)
throughout the Demised Term (as may be extended or renewed). Notwithstanding anything to
the contrary contained herein, if Lessee shall be unable to procure any governmental permit
and /or authorizations required in order to perform Lessee's Initial Installation due to any
violation of any Legal Requirement which is of record as of the Delivery Date (a "Pre- existing
Violation "), then (a) Lessor shall, with reasonable diligence, take such actions which are
necessary in order to cure such Pre - existing Violation, and (b) if such Pre - existing Violation
prevents Lessee from performing Lessee's Initial Installation, the 150 day period set forth in the
definition of the Commencement Date shall be extended one (1) day for each day that Lessee is
prevented from performing Lessee's Initial Installation solely due to the existence of a Pre-
existing Violation until the earlier of (x) the date on which such Pre - Existing Violation is cured
by Lessor or (y) the date on which Lessee shall commence or resume construction of Lessee's
Initial Installation.
C. Lessor hereby approves the performance of such major alterations
by Lessee so as to expand the existing Building, subject however to requirements and terms of
this Lease, including this Section 8 and in compliance with all Legal Requirements and
Permitted Exceptions and Lessor's review and approval of Lessee's detailed plans and
specifications therefor. Such expansion work shall be deemed a major alteration. Lessee shall
not be required to pay any additional Basic Rent with respect to the additional rentable area
created by an expansion of the Building.
D. Lessee may install a sign upon the exterior of the Building and on
a monument sign on the Property without Lessor's consent provided the same comply with all
Legal Requirements and are first -class and professionally prepared in all respects. Lessee shall
not install any such signs without first obtaining the prior approval of all applicable
governmental authorities, to the extent required.
E. If Lessor fails to respond to a request for approval of Lessee's
plans and specifications (or revisions thereto) for any alteration or Lessee fails to respond to
Lessor's request for revisions to Lessee's plans and specifications within ten (10) business days,
the requesting party shall provide the other party with a second written request for approval (a
00277970.12 11
"Second Request "), which shall specifically identify the plans and specifications to which such
request relates, and set forth in bold capital letters of at least 14 point font the following
statement, as the case may be: "LESSOR MUST COMPLETE ITS REVIEW AND
APPROVE OR DISAPPROVE THESE PLANS AND SPECIFICATIONS jOR
REVISIONS THERETO] WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF
THIS NOTICE. FAILURE TO DO SO WILL BE DEEMED TO BE LESSOR'S
APPROVAL OF SUCH PLANS AND SPECIFICATIONS" OR "LESSEE MUST SUBMIT
REVISED PLANS AND SPECIFICATIONS WITHIN FIVE (5) BUSINESS DAYS
AFTER RECEIPT OF THIS NOTICE. FAILURE TO DO SO WILL BE DEEMED TO
BE LESSEE'S APPROVAL OF LESSOR'S REQUESTED REVISIONS OF SUCH
PLANS AND SPECIFICATIONS ". If the requesting party sends a Second Request and the
non - requesting party fails to respond to a Second Request within five (5) business days after
receipt thereof, the plans and specifications (or revisions thereto) previously submitted to
the non - requesting party and identified in the Second Request shall be deemed to be approved by
the non - requesting party. As used herein with respect to a notice sent by Lessee, the term
"respond" shall mean approve or disapprove and, in the case of any disapproval, the reasons
therefor. As used herein with respect to a notice sent by Lessor, the term "respond" shall mean
submission or resubmission of Lessee's plans and specifications.
F. Notwithstanding anything to the contrary contained in this Lease,
Lessee shall have no obligation to remove or restore any of its alterations (including Lessee's
Initial Installation) at the expiration or earlier termination of the Demised Term. However,
Lessee agrees that Lessee shall remove at the expiration or earlier termination of the Demised
Term (i) all poles installed for the Pole Training Use and fill the resulting holes in the ground and
(ii) all of its trade fixtures, furniture and other items of personal property.
9. Impositions.
A. From and after the Commencement Date and thereafter through
Demised Term (including any Renewal " Term, if applicable) (such period, the "Imposition
Payment Period "), Lessee shall pay all Impositions. Subject to the provisions of Section 15
relating to contests, Lessee shall pay all Impositions thirty (30) days before any interest, penalty,
fine or cost may be added for nonpayment, provided that (a) if by law any Imposition may at the
option of the taxpayer be paid in installments," Lessee may exercise such option, and in such
event Lessee shall give Lessor prompt written notice of such exercise and shall pay all such
installments (and interest, if any) becoming due during the Imposition Payment Period as the
same become due and before any further interest or any penalty, fine or cost may be added
thereto, and (h) any Imposition relating to a fiscal period of the taxing authority, a part of which
is included within the Imposition Payment Period and a part of which applies to a period prior to
the Commencement Date or part of which extends beyond the Expiration Date (as extended by
any applicable Renewal Term), shall be apportioned between Lessor and Lessee as of the
Commencement Date or as of the Expiration Date, as the case may be. In the event during the
Imposition Payment Period any assessment is levied against the Property, and provided that any
statute or ordinance relating to such assessment allows for installment payments, Lessee may
elect to pay the assessment in installments and Lessee shall only be responsible for the
installment payments payable during the Imposition Payment Period. In the event the bill for
00277970.12 12
any such Impositions is sent directly to Lessee, Lessee will furnish to Lessor and/or the Holder
for inspection, at least thirty (30) days prior to the date when any Imposition (unless being
contested in conformity with Section 15) would become delinquent, official receipts of the
appropriate taxing authority, or other proof satisfactory to the Holder and Lessor, evidencing the
payment of such Imposition. In the event the bill for any such Impositions or notice of
assessment or notice of assessment proceedings is sent to Lessor, then Lessor shall promptly
forward a copy of such bill or notice to Lessee and Lessee will submit to Lessor an amount equal
to all Impositions evidenced by such bill at least thirty (30) days prior to the time any
Impositions would become delinquent or a copy of any protest or notice of election with respect
to any assessment concurrently with its delivery to the body levying the assessment. Within
thirty (30) days following demand, Lessee shall pay to Lessor an amount equal to all Impositions
previously paid by Lessor relating to the period commencing on Commencement Date and
ending on the last day of the applicable fiscal period of the applicable governmental authority
imposing such Impositions. Notwithstanding the foregoing, Impositions with respect to water
and sewer usage shall be paid by Lessee from and after the Delivery Date.
B. Lessor at Lessor's option, but subject nevertheless to Lessee's right
to pay assessments in installments as provided above, may elect to pay any or all Impositions and
require Lessee to reimburse Lessor on an escrow basis as provided below. If Lessor so elects,
Impositions shall be paid by Lessee to Lessor in equal monthly installments on the first day of
each calendar month of the Imposition Payment Period in an amount equal to one- twelfth
(1 /12 of Lessor's reasonable estimate of such Impositions for the applicable fiscal year, which
estimate Lessor shall have the right to change, from time to time, upon written notice to Lessee.
Within ninety (90) days after Lessor's receipt of the applicable bill from the governmental
authority imposing the Imposition, Lessor shall furnish Lessee with a copy of the applicable bill
together with a written statement in reasonable detail showing the actual amount of said
Imposition for the preceding fiscal year ( "Actual Imposition "). If the Actual Imposition exceeds
the aggregate of Lessee's monthly payments for the fiscal year, Lessee shall pay to Lessor any
deficiency due Lessor within thirty (30) days after receipt of said statement by Lessee. If
Lessee's aggregate monthly payments exceed the Actual Impositions, then provided Lessee is
not in default of its obligations hereunder, (i) any surplus paid by Lessee shall be credited against
the next ensuing monthly installment(s) of Lessor's estimate of Impositions, or (ii) if any such
excess remains at the end of the Demised Term such excess shall be refunded to Lessee within
thirty (30) days following the expiration of the Demised Term. The obligations of Lessor and
Lessee to make the foregoing adjustment shall survive the expiration or earlier termination of
this Lease.
10. Compliance with Legal and Insurance Requirements. etc.
Subject to Section 15 relating to contests, Lessee, at its expense, (a) will
promptly comply with all Legal Requirements and Insurance Requirements with respect to the
use, maintenance, operation, repair and condition of the Property and the Improvements,
including, without limitation, the Building, in all material respects, and in any immaterial respect
if (i) any violation of any Legal Requirement might result in Lessor or Holder being in any
danger of civil or criminal liability or sanctions or (ii) any violation of any Insurance
Requirement might invalidate or affect in any manner the obligations of the insurer under any
00277970.12 13
insurance required to be carried by Lessee hereunder, whether or not compliance therewith shall
require alterations on the Property or in the Improvements, and (b) will procure and maintain all
permits, licenses and other authorizations required for any Lessee's use of the Property or any
part thereof, and for the lawful and proper construction of all alterations, installations, operation
and maintenance of all equipment and appliances necessary or appropriate for the operation and
maintenance of the Property, excluding those permits and authorizations for Lessor's Work and
Lessor's obligations provided for in Section 11(A)(2)(d). Lessor will procure and maintain all
permits and other authorizations required for Lessor's Work and Lessor's obligations provided
for in Section 11(A)(2)(d).
11A. Condition of Property; Repairs, etc.
(1) (a) Lessee is fully familiar with the physical condition
of the Property and all Improvements (including, without limitation, the Building). Lessee
agrees that it takes the Property and Improvements (including, without limitation, the Building)
"as is," without any such representation or warranty except as expressly provided in this Lease
and Lessor shall have no obligation to alter, improve, decorate or otherwise prepare the Property
and Improvements for Lessee's occupancy except that Lessor shall perform Lessor's Work and
the Generator Removal Work. If Lessor is unable to deliver possession of the Property and
Improvements for any reason, Lessor shall not be subject to any liability for failure to give
possession of the Property and Improvements and the validity of this Lease shall not be impaired
under such circumstances, nor shall the same be construed in any way to extend the Demised
Term. The taking of possession of the Property and Improvements by Lessee shall be deemed a
delivery of the Property by Lessor and an absolute and unconditional acceptance of same by
Lessee. Except as expressly provided in this Lease, Lessor has made no representation as to the
condition of the Property or the Improvements or the fitness or availability thereof for any
particular use and none shall be implied from this Lease, and Lessor shall not be liable for any
latent or patent defect therein, but shall be responsible for repair of such defects as provided in
Section 11 A(2)(d).
(b) Lessor represents and warrants to Lessee as follows:
(i) Lessor is the legal and beneficial owner of
the Property and has full power and authority to enter into this Lease. Lessor has good and
marketable title to the Property (subject to the Permitted Exceptions), free and clear of any
Mortgages (as defined in Section 35A of this Lease), other than the Existing Mortgage (as
defined in Section 35D).
(ii) To Lessor's actual knowledge, the use of the
Property for the Primary Use is permitted by applicable zoning and land use laws.
(2) (a) Except for. Lessor's obligations as expressly
provided in Section 11A(2)(d), Lessee shall at all times put, keep and maintain the Property and
all Improvements, including, without limitation, the Building, landscaping, parking areas, walls,
roof (including, without limitation, membranes and all roofing systems), and structural
components of the Building (as it may be expanded or altered by Lessee) and all building
00277970.12 14
systems in good repair and appearance, and shall promptly make all repairs and replacements
(substantially equivalent in quality and workmanship to the original work) of every kind and
nature, whether foreseen or unforeseen, which may be required to be made upon or in connection
with any of the Improvements in order to keep and maintain the Property and all Improvements
in good order of repair, except for ordinary wear and tear. Except as expressly set forth in this
Section 11A(2)(a) and Section 11A(2)(d) below, Lessor shall not be required to make any repair,
whether foreseen or unforeseen, or to maintain any of the Property or Improvements in any way.
Lessee shall, in all events, make all repairs for which it is responsible hereunder promptly, and
all repairs shall be in a good, proper and workmanlike manner. Without limiting the foregoing,
Lessee shall be responsible for the repair, maintenance and, if necessary, replacement of the New
HVAC System (as such term is defined below). Lessee shall be responsible for the repair,
maintenance, but not replacement of the Existing HVAC System (as such term is defined below).
Lessee, at its sole costs and expense shall obtain and keep in full force and effect during the
entire Demised Term (as may be extended or renewed) a commercially reasonable service
contract reasonably acceptable to Lessor, with a contractor or contractors reasonably approved
by Lessor, to maintain and regularly service the Existing HVAC Equipment and the New HVAC
System. Lessee shall deliver to Lessor a duplicate copy of each such service contract within
thirty (30) days after the Delivery Date, and shall renew each such contract, and deliver a
duplicate copy of such renewal to Lessor, prior to the expiration of the term of each contract. So
long as Lessee maintains the service contract and diligently performs all required minor repairs
and maintenance, during the initial Demised Term (without giving effect to any Renewal Term.)
only, Lessor shall reimburse Lessee within thirty (30) days of written demand therefor
(accompanied by copies of bills and invoices) for all required repairs or replacements (where
repair is impossible or commercially impractical, as determined by an independent third party
consultant mutually acceptable to Lessor and Lessee) of the Existing HVAC Equipment, which,
in either case, cost in excess of $5,000 per occurrence and are not covered under the standard
annual or monthly fees for Lessee's HVAC maintenance contract. Lessor will assign to Lessee
all warranties for the New HVAC System, or, if such warranties are not assignable, Lessor shall
enforce such warranties for Lessee's benefit. Such $5,000 amount shall be increased each
January 1s during the Demised Term or any Renewal Term. Lessor shall replace the Existing
HVAC Equipment with HVAC equipment sufficient to heat and cool the entire Building, at its
sole cost and expense, if the repair thereof is impossible or commercially impractical, as
determined by an independent third party consultant mutually acceptable to Lessor and Lessee.
(b) If Lessee shall be in default under any of the
provisions of this Section 11, Lessor or Holder may, after thirty (30) days written notice to
Lessee and failure of Lessee to commence to cure during said period or to diligently prosecute
such cure to completion once begun, but immediately upon notice in the event of an emergency
(that is, imminent danger of injury to persons or property), do whatever is necessary to cure such
default as may be reasonable under the circumstances for the account of and at the expense of
Lessee. In the event of an emergency, before Lessor or Holder may avail itself of its rights under
this paragraph, Lessor or Holder, as the case may be, shall, if practical at the time, send notice to
lessee of the situation by phone or other available communication, provided that such oral or
other available communication is immediately followed by written notice in accordance with
Section 42. All actual and reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) so incurred by Lessor or Holder, together with interest
00277970.12 15
•
thereon at the Prime Rate plus two (2 %) percent from the date of payment or incurring the
expense, shall constitute Additional Rent payable by Lessee under this Lease and shall be paid
by Lessee to Lessor or Holder (as applicable) within thirty (30) days after, written demand
therefor together with reasonable evidence of such costs and expenses. Lessor and Lessee agree
that, in the event of an emergency, expenditures which might otherwise be unreasonable (such as
overtime) may nevertheless be reasonable under the circumstances.
(c) Without limiting the foregoing, Lessee shall from
time to time replace with other similar operational equipment or parts any of the Building
mechanical systems or other equipment included in the Improvements (excluding the Existing
HVAC System) which shall have become worn out, obsolete or unusable for the purpose for
which it is intended, been taken by a Taking, subject nevertheless to the provisions of Section 21,
or been lost, stolen, damaged or destroyed as provided in Section 19. Lessee shall repair at its
sole cost and expense all damage to the Property and Improvements caused by the removal of
equipment or any other personal property of Lessee at any time, including upon expiration or
earlier termination of this Lease.
(d) Lessor will at its sole cost and expense (except as
provided below) and throughout the Demised Term make necessary capital replacement (as
defined below) and major structural repairs (as defined below) to the Building's foundation,
footings, floor slabs (but not flooring) and structural portions of structural walls (excluding
cosmetic aspects of such walls and wall coverings, sheetrock (or similar materials), glass and
doors) of the Building, and, to the extent not maintained by the applicable utility company, the
existing utility lines to their point of connection to the Building (any new or additional utility
lines installed by or on behalf of Lessee being Lessee's obligation, to maintain, repair and
replace). If any such repair or replacement is required or necessitated by reason of any
alterations performed by or on behalf of Lessee, by any Legal Requirement triggered by an
alteration performed by or on behalf of Lessee or by Lessee's particular use of the Property, or
Lessee's fault or negligence or the fault or negligence of any of its contractors, agents, invitees,
delivery trucks, vendors, distributors, employees or other person using the Property with
Lessee's consent, express or implied, or Lessee's failure to perform any of its obligations under
this Lease, then Lessee shall be responsible to make such repair or replacement or, Lessor may,
at its option, make such repair and Lessee shall reimburse Lessor for the reasonable costs of such
repairs within thirty (30) days after receipt of written demand therefor together with reasonable
evidence of such costs and expenses. Lessor's obligations to make such repairs and
replacements as set forth above shall only apply to the Building as it exits as of the Delivery
Date, not any expansion or alterations performed by or on behalf of Lessee. As used herein,
"major structural repairs" shall mean repairs costing in excess of $20,000.00, which amount shall
be increased by 2.5% on each January 1 occurring during the Demised Term or any Renewal
Term. As used herein, the term "capital replacement" shall mean the required (where repair is
impractical or impossible, as determined by a third party consultant mutually acceptable to
Lessor and Lessee) replacement of such items the cost of which may be amortized over the
useful life of such item as provided under Generally Accepted Accounting Principles, .
consistently applied.
11B. Lessor Work.
00277970.12 16
(1) Notwithstanding anything to the contrary contained in
Section 11A above, prior to the Commencement Date, Lessor shall Substantially Complete the
following work (referred to herein as "Lessor's Work "): (i) perform the work . described in
Exhibit C -1 to install a new HVAC system (the "New HVAC System ") to serve the portion of
the second (2 " floor of the Building which is being used as a data center by the existing lessee
of the Building as of the date of this Lease and (ii) deliver the existing HVAC equipment at the
Building as described on Exhibit C -2 annexed hereto (the "Existing HVAC Equipment ") in
working order and condition as confirmed by an independent third party consultant mutually
acceptable to Lessor and Lessee. Lessor and Lessee shall use their reasonable efforts in good
faith cooperation to complete such inspection of the Existing HVAC Equipment during the
period of August 15, 2012 to October 15, 2012. In addition to Lessor's Work, Lessor shall
remove (or cause to be removed) the existing 2000 KW Cat generator located on a pad outside
the building and restore to a blacktop condition those areas under the generator which were
blacktopped prior to the installation of the generator (the "Generator Removal Work ") as soon as
reasonably possible following the date the existing lessee of the Building vacates the Building,
but in no event later than the date which is thirty (30) days following the Commencement Date.
Except for Lessor's performance of Lessor's Work, the parties agree that Lessee shall be solely
responsible for performing any alteration or other work necessary or desired by Lessee for its
occupancy of the Property and Improvements.
(2) Lessor's Work required to be performed and made by
Lessor pursuant to the provisions of this Section 11B shall constitute a single, non - recurring
obligation on the part of Lessor. In the event that this Lease is renewed or extended for a further
term by agreement or operation of law, Lessor's obligation to perform such work shall not apply
to such renewal or extension.
(3) Lessor's Work and the Generator Removal Work shall be
performed simultaneously with Lessee's Initial Installation. Lessor and Lessee and their
respective contractors shall work together in good faith to cooperate and coordinate Lessor's
Work and Lessee's Initial Installation such that all work may be completed on a timely basis.
Lessee acknowledges and agrees that Lessor's Work to install the New HVAC System shall be
performed and substantially completed by Lessor before Lessee may perform any work in the
affected areas. Lessor may enter the Property to perform the foregoing work and installations,
and entry by Lessor, its agents, servants, employees or contractors for such purpose shall not
constitute an actual or constructive eviction, in whole or in part, or entitle Lessee to any
abatement or diminution of rent, or relieve Lessee from any of its obligations under this Lease, or
impose any liability upon Lessor, or its agents, by reason of inconvenience or annoyance to
Lessee, or injury to, or interruption of Lessee's business or otherwise. Lessor agrees, however,
to perform said work with reasonable diligence without any obligation, however, to employ
contractors or labor at overtime or other premium pay rates.
12. Replacement of Equipment.
Lessee may, from time to time, remove and dispose of Lessor's
Equipment constituting part of the Property, provided that Lessee shall promptly replace such
00277970.12 17
equipment with other equipment at least equal in value and general utility to that removed, unless
the removed equipment has become obsolete and neither it nor any substitute is needed, in which
case it need not be replaced; however, if the replacement cost thereof exceeds Twenty-Five
Thousand and 00/100 ($25,000.00) Dollars, Lessor's reasonable approval of Lessee's decision
not to replace the same shall be obtained, which approval shall not be unreasonably withheld,
conditioned or delayed.
13. No Claims Against Lessor.
Nothing contained in this Lease shall constitute the consent or request of
Lessor, express or implied, for the performance of any labor or the furnishing of any materials or
other property in respect of the Property or any part thereof, or as giving Lessee any authority to
contract for' or permit the rendering of any services or the furnishing of any materials or other
property so as to permit the making of any claim against Lessor.
14. Discharge of Liens. etc.
Subject to Section 15 relating to contests, Lessee will not create or permit
to be created or to remain, and will discharge promptly (but not later than fifteen (15) days
following Lessee's knowledge thereof), any lien, encumbrance or charge on account of any
Imposition or any mechanic's, laborer's, materialman's, vendor's or other lien or chattel
mortgage, conditional sale or other title retention agreement, upon the Property or any part
thereof arising from Lessee's (or its agent's) actions. Lessee shall provide Lessor with a copy of
any notice of lien within seven (7) business days after Lessee's receipt of such notice of lien.
15. Contests.
After prior written notice to Lessor, Lessee may contest (in the name of
Lessor if legally required) by appropriate legal proceedings diligently conducted in good faith to
a final conclusion, the amount, validity or application, in whole or in part, of any Imposition or
other Legal Requirement; and may defer compliance therewith pending such contest provided
that (a) in the case of any unpaid Imposition, such proceedings shall operate to suspend the
collection of the Imposition (including the ability of any governmental authority to place a lien
against the Property) from Lessor and the Property, or any part thereof, and shall not interfere
with the use or occupancy of the Property or any part thereof or interest therein or the payment of
the Basic Rent or other sums payable hereunder, (b) in case of any Legal Requirement, neither
Lessor nor the Holder would be in any danger of civil or criminal liability or sanctions for failure
to comply therewith, (c) neither the Property or any part thereof or interest therein nor the Basic
Rent or any other sums payable hereunder would be in any danger of being sold, forfeited or lost
by reason of such proceedings, or (d) Lessee shall have furnished such security, if any, as may be
required in the proceedings or by any Holder. Any tax refund with respect to Impositions paid
by Lessee shall be paid to and be the property of Lessee. Lessor, without expense to it, shall
cooperate with Lessee and execute any documents or pleadings required for any such contest
provided that such cooperation shall not impose any obligation on Lessor and Lessor shall be
reasonably satisfied that the facts set forth in such documents or pleadings are accurate. Lessee
agrees that it will promptly after the final determination of such contest, (i) with respect to any
Imposition, fully pay and discharge the amounts which shall be levied, assessed, charged or
imposed or be determined to be payable therein together with all fines, penalties, interests, costs
00277970.12 18
and expenses thereon or in connection therewith, and (ii) with respect to any Legal Requirement,
forthwith comply therewith as determined in any such contest.
16. Utilities and Services.
A. Lessee will pay or cause to be paid all charges for public or private
utility services and all sprinkler- systems and protective services, if any, at any time rendered to
or in connection with the Property or any part thereof and will comply with all contracts relating
to any such services, and will do all things required for the maintenance and continuance of all
such services.
B. Nothing contained in this Lease shall in any way obligate Lessor to
provide any services to the Property or to perform any work or incur any costs in order to
maintain and continue such services.
17. Insurance.
Lessee, at its expense (but subject to the second immediately following
grammatical paragraph), will maintain: (a) insurance with respect to the Improvements on the
Property now existing or to be added, against loss or damage or destruction as may be included
in the broadest form of "Special Form" policy or endorsement (including endorsements for
earthquake and terrorism insurance), in amounts sufficient to prevent either Lessor or Lessee
from becoming a co- insurer under the applicable policies, and in any event in amounts not less
than full replacement cost of the Improvements, as determined from time to time, but not more
frequently than once in any 36 month period, at Lessee's expense, when requested by Lessor or
the Holder, by the insurer or insurers or by an appraiser approved by Lessor and the Holder and
naming Lessor as an additional insured; (b) commercial general liability insurance which shall be
written on a primary non - contributing basis, and on a so -called "occurrence basis" and shall
provide minimum protection in a single limit and in the aggregate of not less than Ten Million
and 00 /100 ($10,000,000.00) Dollars (or in such increased limits from time to time to reflect
declines in the purchasing power of the dollar as Lessor may reasonably request) dedicated to the
Property which insurance shall cover claims for bodily injury, or property damage occurring on,
in or about the Property, and any elevators or escalators therein and any vehicles operated or
located thereon and on, in or about the adjoining streets, sidewalks and railroad siding, including
comprehensive form, Property- operations, operations hazard, broad form property damage and
blanket additional insured endorsements (on forms at least as broad as CG 20 -10 11/85 (or
equivalent) and which endorsements shall not limit the scope of coverage beyond that provided
to the named insured and such additional insured coverage shall likewise apply on a primary
non - contributing basis up to the full $10,000,000 limit and shall be prohibited from seeking
contribution or participation from any other coverage available to Lessor) and contractual
coverage insuring the Lessee's indemnification obligations under this Lease; (c) statutory
workers compensation for statutory benefits and employer's liability coverage in an amount of
One Million and 00 /100 ($1,000,000.00) Dollars per occurrence, but no less than the minimum
amount required by Legal Requirements, evidencing a waiver of subrogation rights and statutory
immunity as to Lessor and Holder covering all persons employed in connection with any work
done on or about the Property for which . claims for bodily injury could be asserted against
00277970.12 19
Lessor, Lessee, the Holder or the Property; (d) umbrella and following form excess policy on a
per occurrence basis having a combined single limit of at least Ten Million DOLLARS
($10,000,000.00) (or in such increased limits from time to time to reflect declines in the
purchasing power of the dollar as Lessor may reasonably request) for bodily injury and property
damage on a primary and non - contributing basis prohibiting contribution or participation from
any other coverage available to the Lessor and (e) commercial automobile liability insurance
covering all owned, hired and non -owned vehicles with a combined single limit or not less than.
$1,000,000.00 (or in such increased limits from time to time to reflect declines in the purchasing
power of the dollar as Lessor may reasonably request) for each accident or person.
In the event of any alterations, Lessee shall cause its contractors and
subcontractors to carry the following insurance: (i) commercial general liability insurance which
shall be written on a primary non - contribution basis, and on a so- called "occurrence basis" and
shall provide minimum protection in a single limit and in the aggregate of not less than TEN
MILLION and 00 /100 ($10,000,000.00) DOLLARS ($3,000,000.00 with respect to
subcontractors) (in either case, in such increased limits from time to time to reflect declines in
the purchasing power of the dollar as Lessor may reasonably request) and containing a broad
form property damage endorsement; (ii) Builder Risk Insurance in the estimated value of the
alterations; (iii) statutory workers compensation for statutory benefits and employers liability
coverage in the minimum amount required by Legal Requirements; and (iv) commercial
automobile liability insurance covering all owned, hired and non -owned vehicles with a
combined single limit or not less than $1,000,000.00 for each accident or person.
Notwithstanding the foregoing, Lessor shall reimburse Lessee for the
actual out -of- pocket insurance premiums paid by Lessee to maintain the insurance required
under this Lease for the period commencing on the Delivery Date and ending on the
Commencement Date, however, Lessor shall not be obligated to reimburse Lessee for any such
insurance premiums in excess of $12,000. In the event any such insurance premiums cover any
period prior to the Delivery Date or after the Commencement Date, such premiums shall be
equitably pro -rated such that Lessor is only responsible to reimburse Lessee for the portion of the
insurance premiums related to the period commencing on the Delivery Date and ending on the
Commencement Date. Lessor shall reimburse Lessee within thirty (30) days following demand
therefore, which shall be accompanied by copies of the applicable bills or invoices for the
insurance premiums. In the event Lessor fails to reimburse Lessee within such thirty (30) day
period and such failure continues for ten (10) business days following notice to Lessor of such
failure, Lessee may offset such unreimbursed amount against the next installments of Basic Rent
coming due under this Lease
18. Policy Provisions, Delivery of Policies, etc.
A. (1) All insurance policies maintained by Lessee and/or
Lessee's contractors and subcontractors pursuant to Section 17 shall (a) name the Lessor and the
Holder, if any, and such other parties as may be reasonably designated in writing by Lessor
and/or the Holder, as additional insureds as set forth in Section 17 (on a primary and non-
contributing basis up to the full policy limit and shall be prohibited from seeking contribution
from any other coverage available to the Lessor and shall be on a form at least as broad as CG
00277970.12 20
20 -10 11/85 (or equivalent) and shall not include any exclusions that limit the scope of coverage
beyond that provided to the named insured) and also, except for insurance provided for in
Section 17(c), shall be payable under a standard Lender's Loss Payable clause to the Holder, if
any, it being agreed, however, that insurance proceeds shall be made available to Lessee and
Lessor for restoration under the provisions of this Lease; (b) provide that losses shall be payable
notwithstanding any act or negligence of Lessee; (c) provide that at least thirty (30) days (fifteen
(15) days in the case of cancellation for non- payment) prior written notice of cancellation shall
be given to Lessor and to the Holder; and (d) shall be issued by insurers which are rated A -NII
or better by A. M. Best Company or its successor (or, in the event there is no successor, an
equivalent rating by a national rating organization) and are licensed to do business in the state
where the Property is located.
(2) Such policies also shall provide that all insurance proceeds
(other than in case of contractor's general liability insurance) for losses in an amount equal to the
Threshold Sum or less shall (i) if affecting any item Lessor is, obligated to repair pursuant' to
Section 11 A(2)(d), be adjusted by Lessor, subject to the reasonable approval of Lessee and paid
to Lessor and Lessee in relation to the restoration work required to be performed by each party or
(ii) otherwise be adjusted by and paid to Lessee alone. Such policies also shall provide that all
insurance proceeds for losses in an amount of more than the Threshold. Sum (i) if affecting any
item Lessor is obligated to repair pursuant to Section 11A(2)(d), be adjusted by Lessor, subject
to the reasonable approval of Lessee and the Holder and paid to the Depositary or (ii) otherwise
shall be adjusted by Lessee, subject to the reasonable approval of Lessor and the Holder, and
paid to the Depositary.
(3) Insurance proceeds which are payable to Lessee alone in
accordance with the provisions of this Lease shall be held in trust and used by Lessee to pay for
the cost of making repairs and doing such work as may be necessary to protect the Property
against further injury. If the proceeds of insurance payable to Lessee alone shall exceed such
costs, such excess shall belong to and be retained by Lessee as its own property.
(4) The insurance proceeds which are payable to the
Depositary in accordance with the provisions of this Lease shall be held in trust for the purpose
of paying for the cost of the work required to be performed by Lessee and Lessor under Section
19 and the cost of making repairs and doing such work as may be necessary to protect the
Property against further injury and shall be disbursed as provided in Section 20. The Depositary
shall be entitled to reasonable compensation payable out of such funds. If the insurance proceeds
held by the Depositary shall exceed such cost, such excess shall belong to and be paid over to
Lessee upon the completion of and payment for such work.
(5) Upon the Delivery Date and thereafter not at least ten (10)
days before the expiration dates of the expiring policies theretofore delivered pursuant to this
Section, Lessee will deliver to Lessor and the Holder, upon request of Lessor, evidencing
coverage required by this Lease
(6) Lessee may maintain any of its required insurance
coverages under blanket policies of insurance covering said Property and any other Property of
00277970.12 21
Lessee, or companies affiliated with Lessee, provided that the coverage afforded will not be
reduced or diminished by reason of the use of such blanket policy.
B. Lessee and Lessor hereby waives any and all rights of recovery
against the other and Holder, or against their respective officers, employees, agents or
representatives, for loss of or damage to Property, Improvements other property of Lessee or
Lessor or the property of others under its control or claiming by through or under the waiving
party, if such loss or damage is covered by any insurance policy (whether or not described in this
Lease) in force, or required by the terms of this Lease to be in force at the time of such loss or
damage. Lessee shall obtain for the benefit of Lessor and Holder on any property insurance
policy required hereunder a waiver of any right of subrogation which the insurer might otherwise
acquire against Lessor or Holder (or such party's officers, employees, agents or representatives)
by virtue of the payment of any loss covered by insurance or otherwise.
19. Damage and Destruction; Restoration.
A. In case of any damage to or destruction of the Property or any part
thereof which Lessor is not obligated to repair or restore pursuant to Section 11 A(2)(d), Lessee
will promptly give notice thereof to Lessor (unless the cost of repairing such damage shall be
less than the Threshold Sum) and, subject to the right of reimbursement under Section 20, Lessee
will, at Lessee's expense, whether or not (a) there are insurance proceeds or (b) the insurance
proceeds shall be sufficient for the purpose, promptly commence and complete with due
diligence the restoration of the damaged or destroyed portion of the Property to as nearly as
possible its value, condition and character immediately prior to such damage or destruction,
subject to the applicable Legal Requirements and Insurance Requirements then in effect, with
such alterations, if any, as Lessee may elect to make pursuant to Section 8. In the case of any
damage to or destruction of the Property or any part thereof which Lessor is obligated to repair
or restore pursuant to the provisions of Section 11A(2)(d), Lessee will promptly give notice
thereof to Lessor. Lessor shall, at Lessor's expense, provided there are available insurance
proceeds which are sufficient for the purpose, promptly commence and complete with due
diligence the restoration of the damaged or destroyed portion of the Property which Lessor is
obligated to repair or restore pursuant to Section 11A(2)(d) to as nearly as possible its value,
condition and character immediately prior to such damage or destruction, subject to the
applicable Legal Requirements and Insurance Requirements then in effect, with such alterations,
if any, as Lessee may approve, such approval not to be unreasonably withheld. In such case,
following Lessor's completion of Lessor's restoration work, Lessee' shall promptly commence
and diligently pursue the repair and restoration of the remainder of the Property as provided
above. Notwithstanding the foregoing, in the event that Lessee fails to maintain the insurance
required pursuant to this Lease (and Lessor has not elected to maintain such insurance pursuant
to Section 17), and, as a result there are insufficient proceeds available to Lessor to perform its
restoration work, Lessee shall pay to Lessor such amounts as are necessary for Lessor to perform
such restoration work, and until Lessee pays such amounts Lessor shall have no obligation to
restore any portion of the Property.
B. If, at any time during the last twelve (12) months of the Demised
Term or any renewal term, the Improvements shall be so damaged or destroyed that the cost of
00277970.12 22
restoration shall exceed fifty percent (50 %) of the replacement value thereof immediately prior
to such damage, either party hereto may, within thirty (30) days of such damage, or destruction
give notice of its election to terminate this Lease and, subject to the further provisions of this
Section 19B, this Lease and any further renewal or right of renewal shall cease and come to an
end on the date of the expiration of ten (10) days from the delivery of such notice with the same
force and effect as if such date were the Expiration Date, and the Basic Rent shall be apportioned
and paid to the time of such termination. In such event neither Lessor nor Lessee, shall have any
obligation to repair or rebuild, and the entire insurance proceeds shall be and remain the outright
property of Lessor except as to insurance proceeds payable on account of loss or damage to
Lessee's personal property and movable equipment.
C. Any notice to terminate given by Lessor under Section 19B during
any renewal term, shall, however, be of no force or effect if (a) Lessee shall have theretofore
duly exercised its said right to renew this Lease for an additional term or (b) Lessee shall, within
forty (40) days following the occurrence of such fire or other casualty, exercise a right to renew
the Lease for an additional term pursuant to the provisions of Section 50 hereof, which right is
hereby conferred upon Lessee in the event of an election by Lessor to terminate as hereinabove
provided. The provisions contained in this Section 19C shall not be construed as giving Lessee
any right of renewal other than those set forth in Section 50 hereof.
20. Proceeds Held By Depositary.
A. All net proceeds of insurance received by the Depositary, as
•
provided in Section 18, shall, after (i) reimbursement of all reasonable expenses incurred by, and
reasonable compensation paid to, the Depositary in connection therewith, (ii) reimbursement of
all reasonable expenses incurred by the Holders, Lessor and Lessee in connection therewith and
(iii) payment of all proceeds to Lessor which are necessary for Lessor to perform all restoration
work which Lessor is required to perform, be paid by the Depositary to Lessee or to the persons
designated by Lessee, as the work of restoration required under Section 19 progresses, upon
Lessee's request and against:
(i) a certificate by Lessee dated not more than 15 days prior to
the request, setting forth the following: (i) that the sum then requested either has been paid by
Lessee or is justly due to contractors, subcontractors, materialmen, engineers, architects or other
persons who have rendered services or furnished materials for the work therein specified, and
giving a brief description of such services and materials and the several amounts so paid or due
to each of said persons in respect thereto, (ii) that the cost, as estimated by the person signing
such certificate, of the work required to be done subsequent to the date of such certificate in
order to complete the work, does not exceed the funds remaining in the hands of the Depositary
after payment of the sum requested in such certificate; and
(ii) evidence reasonably satisfactory to the Depositary, to the
effect that there has not been or may not be filed with respect to the Property or any part thereof'
any vendor's, mechanic's, laborer's, materialman's or other like lien which has not been
discharged of record except such as will be discharged by payment of the amount requested or is
being contested by Lessee in accordance with the provisions of Section 15.
00277970.12 23
B. Any work required to be performed by Lessee under the provisions
of Section 19 which involves a cost equal to or greater than the Threshold Amount (as estimated
by a licensed architect selected by Lessee, reasonably satisfactory to the Holder and Lessor) shall
be performed under the supervision of such architect, and the aforesaid certificate shall also be
signed by such architect.
•
21. Condemnation or Eminent Domain.
A. Lessee hereby irrevocably assigns to Lessor any award or payment
to which Lessee may be or become entitled because of any Taking of the Property or any part
thereof, in or by condemnation or other eminent domain proceedings pursuant to any general or
special law or because of the temporary requisition of the use or occupancy of the Property or
any part thereof, by any civil or military governmental authority, whether the same shall be paid
or payable for Lessee's leasehold interest, or otherwise.
B. If:
(i) there shall be a Taking of the entire Property (a "True Total
Taking "), or
(ii) there shall be any Taking of at least fifteen (15 %) percent
of the square foot area of the Improvements and Lessee shall give notice
(the "Unsuitability Notice ") to Lessor within sixty (60) days of such
Taking, that such Taking is, in Lessee's reasonable business judgment,
sufficient to render the remaining portion unsuitable for Lessee's
continued use or occupancy for Lessee's business purposes and with such
notice shall deliver to Lessor a certificate of Lessee, signed by an officer
of Lessee stating that, in Lessee's reasonable business judgment, the
portion of the Property remaining after the Taking is unsuitable for
Lessee's continued use and occupancy for Lessee's business purposes and
that Lessee does not intend to repair, rebuild or restore the Property and
that Lessee has discontinued the use of the Property or will discontinue
such use no later than ninety (90) days after the Taking (an "Unsuitability
Taking");
then, in the event of either a True Total Taking or an Unsuitability Taking, this Lease shall,
except as otherwise hereinafter provided, terminate on the date (the "Termination Date ") which
shall be later of (a) the date of such Taking or (b) the date that Lessee shall vacate from the
Property, and the entire award shall be paid to and belong to Lessor.
C. In the event that during any renewal term Lessee shall serve
Lessee's Termination Notice upon Lessor, this Lease and the term hereof shall terminate on the
Termination Date. In such event the entire award made in any expropriation proceeding shall be
paid to the Holder, or to Lessor, in that order.
00277970.12 24
D. If this Lease shall terminate as provided in Section 21B, Lessee
shall be entitled to collect any separate payment for moving expenses, personal property and
trade fixtures belonging to Lessee and removable by Lessee at the expiration of the Demised
Term or any Renewal Term, as provided hereunder and any other loss which may be granted to
Lessee by reason of the Taking, provided, however, that such payment (i) shall be separate from
and shall not be part of the award for the Taking of the Property or any part thereof, (ii) shall not
reduce in any manner the amount of the award for the Taking of the Property or any part thereof;
(iii) shall not reduce the amount of the award which Lessor would have been entitled to receive
as a result of such Taking had no such payment been made to Lessee, and (iv) the amount
payable to Lessee under this Section 21C shall be subject and subordinate to the amount of the
award payable to the Holder whether or not this Lease is subject to the lien of the Mortgage.
E. If there shall . be a Taking of a portion of the Property and this
Lease shall not terminate as provided in Section 21B, Lessee, at its own expense, shall
commence and proceed with reasonable diligence to repair or reconstruct the Improvements on
the remaining Property as nearly as possible, to the condition and character immediately prior to
the Taking, including temporary repairs (all such work being herein referred to as "Restoration "),
subject to applicable Legal Requirements and Insurance Requirements then in effect; and the
total awards and proceeds of the Taking shall be apportioned and paid, to the extent available, in
the following order of priority:
{i) First Lessor, Lessee and the Holder shall be entitled to all
reasonable expenses and charges, including, without limitation, reasonable
attorneys' fees incurred in connection with the Taking.
(ii) - Lessee next shall be entitled to an amount equal to the cost
of Restoration.
(iii) The balance of the award shall be paid to Lessor (the "Net
Surplus Award ").
F. If the cost of Restoration shall be an amount equal to the Threshold
Sum or less, it shall be paid to Lessee and if more than an amount equal to the Threshold Sum, it
shall be paid to the Depositary and disbursed by the Depositary, as the work progresses,
substantially in the same manner and subject to the same conditions as is provided in Section 20
for the disbursement of insurance proceeds. If the cost of Restoration exceeds the amount of the
award available therefor, Lessee shall only be required to restore to the extent of the award
available to Lessee.
G. If there shall be a Taking of a portion of the Property and this
Lease shall not terminate as provided in Section 21B, the annual Basic Rent under this Lease
shall not be reduced or abated in any way.
H. (1) In the event of a Taking of all or any portion of the
Property for temporary use (not more than 365 days), the foregoing provisions of this Section
shall be inapplicable thereto, this Lease shall continue in full force and effect without reduction
00277970.12 25
or abatement of Basic Rent or additional rent and Lessee, alone, shall be entitled to make claim
for, recover and retain any award recoverable in respect of such temporary use whether in the
form of rental or otherwise. Any award paid for any period beyond the Demised Term shall be
paid to the Holder or Lessor in that order. If the award is made in a lump sum covering a period .
beyond the expiration of the Demised Term, Lessor and the Holder also shall be entitled to make
claim for and participate in the award proportionately. If the award is made in a lump sum
covering the entire period, or substantially the entire period of such temporary use and if it
includes the amount of Basic Rent and additional rent for such period, such portion of the lump
sum as shall represent the Basic Rent and additional rent shall be paid to Lessor or Holder to be
held in escrow and disbursed for the payment of Basic Rent and additional rent as they become
due and the balance thereof shall belong to and be paid to Lessor.
(2) If any portion of the award for such temporary use is
intended to cover the cost of restoring the Property to the condition it was in prior to such
temporary use or to make repairs occasioned by or resulting from such temporary use, such
portion, if in excess of an amount equal to the Threshold Sum, shall be paid to the Depositary
and held until the termination of the temporary use and then disbursed by the Depositary (in the
same manner and subject to the same conditions as is provided in Section 20 for the
disbursement of insurance proceeds), to cover the cost of such restoration and repair, which
restoration and repair shall be made by Lessee; and any balance remaining shall belong to and be
paid to Lessee, except that if the temporary use shall be for a period extending beyond the
expiration of the term hereof, such entire portion of the award shall be paid to the Holder or
Lessor, in that order.
22. Indemnification of Lessor.
A. Subject to the terms of Section 18B, to the fullest extent permitted
by law, except to the extent caused by the negligence or willful misconduct of Lessor, Lessee
will defend, protect, indemnify and save harmless Lessor, the Holder and the trustee named in
the Leasehold Mortgage (collectively, the "Indemnitees ") from and against all liabilities,
obligations, damages, penalties, claims, causes of action, costs, charges and expenses, including
reasonable attorneys' fees and expenses, which may be imposed upon or incurred by or asserted
against the Indemnitees by reason of (a) any accident, injury or damage to any person or property
occurring on or about the Property or any part thereof, (b) any use, non -use or condition of the
Property or any part thereof; including, without limitation, the presence of any hazardous
substances, wastes or materials or toxic substances and the negligence or willful misconduct of
Lessee, (c) any failure on the part of Lessee to perform or comply with this Lease, (d) any claim
for the performance of labor or the furnishing of materials or other property, at Lessee's request
or at the request of anyone claiming under Lessee, or performed by Lessor and/or the Holder
under the provisions of Section 26, in respect of the Property or any part thereof, and (e) any
action or proceeding, to which Lessor and /or the Holder are made a party or in which it becomes
necessary in the judgment of Lessor and/or the Holder, to defend or uphold the validity of the
interest of Lessor and/or the Holder which action or proceeding arises out of the breach by
Lessee of a provision of this Lease or other act or wrongful omission of Lessee. In case any
action or proceeding is brought against Lessor and/or Holder by reason of any such occurrence,
Lessee, upon Lessor's or Holder's request, will, at Lessee's expense, resist and defend such
00277970.12 26
action or proceeding, or cause the same to be resisted and defended, either by counsel designated
by Lessee and approved by Lessor (and if any holder of the Mortgage is named in the action or
proceeding, the Holder), such approval not to be unreasonably withheld, conditioned or delayed,
or, where such occurrence is covered by liability insurance, by counsel designated by the insurer.
The recovery of attorneys' fees, costs, court costs, expenses and disbursements hereunder shall
include all those attorneys' fees, court costs,_ expenses and disbursements incurred in defense of
any underlying claim, in the enforcement of this indemnity agreement, in the prosecution of any
claim for indemnification hereunder and the pursuit of any claim for insurance coverage required
under this Lease. Lessee shall purchase and maintain such insurance as will protect it from the
costs and expenses relating to the foregoing, including without limitation contractual coverage
including coverage for the foregoing indemnity obligations. The aforesaid indemnification shall
operate whether or not the Lessee has placed and maintained the insurance specified under this
Lease. The obligations of Lessee under this Section shall survive any termination of this Lease.
B. Subject to the terms of Section 18B and the other terms of this
Lease, to the fullest extent permitted by law, except to the extent caused by the negligence or
willful misconduct of Lessee, Lessor will defend, protect, indemnify and save harmless Lessee,
from and against all liabilities, obligations, damages, penalties, claims, causes of action, costs,
charges and expenses, including reasonable attorneys' fees and expenses, which may be imposed
upon or incurred by or asserted against the Lessee by reason of (a) the negligence or willful
misconduct of Lessor, (b) any claim for the performance of labor or the furnishing of materials
or other property performed by Lessor in respect of the Property or any part thereof, (c) any
failure on the part of Lessor to perform or comply with this Lease, and (d) any action or
proceeding, to which Lessee is made a party or in which it becomes necessary in the judgment of
Lessee, to defend or uphold the validity of the interest of Lessee which action or proceeding
arises out of the breach by Lessor of a provision of this Lease or other act or wrongful omission
of Lessor. In case any action or proceeding is brought against Lessee by reason of any such
occurrence, Lessor, upon Lessee's request, will, at Lessor's expense, resist and defend such
action or proceeding, or cause the same to be resisted and defended, either by counsel designated
by Lessor and approved by Lessee, such approval not to be unreasonably withheld, conditioned
or delayed, or, where such occurrence is covered by liability insurance, by counsel designated by
the insurer. The recovery of attorneys' fees, costs, court costs, expenses and disbursements
hereunder shall include all those attorneys' fees, court costs, expenses and disbursements
incurred in defense of any underlying claim, in the enforcement of this indemnity agreement, in
the prosecution of any claim for indemnification hereunder and the pursuit of any claim for
insurance coverage required under this Lease. The obligations of Lessor under this Section shall
survive any termination of this Lease
23. Assignment and Subletting.
A. Except in connection with a Permitted Transfer or an Ownership
Change (defined in Section 23F.), Lessee shall not assign, mortgage, pledge, encumber, or
otherwise transfer this Lease, whether by operation of law or otherwise, or sublease, transfer or
encumber any interest in this Lease or allow any third party to use any portion of the Property
(collectively or individually, a "Transfer ") without the prior written consent of Lessor, which
consent by Lessor shall not be unreasonably withheld, conditioned or delayed provided the
00277970.12 27
requirements of this Section 23 are satisfied. If. Lessee is a legal entity, the transfer (by one or
more transfers), directly or indirectly, by operation of law or otherwise, of a majority or
controlling interest of the stock, membership, partnership or other beneficial ownership interest
in Lessee (collectively "Ownership Interests ") shall be deemed a Transfer; provided, however,
that the provisions of this Section 23 shall not apply to the transfer of ownership Interests in
Lessee if and so long as Lessee is publicly traded on a nationally recognized stock exchange.
Any attempted Transfer in violation of this Section is void and shall not be enforceable upon
Lessor. In no event shall any Transfer, including a Permitted Transfer or Ownership Change,
release or relieve Lessee from any obligation under this Lease, which shall continue as the
obligations of a principal and not as the obligations of a surety or a guarantor. Furthermore, no
such assignment of Lessee's interest in this Lease as whether consented to by Lessor or made
pursuant to a Permitted Transfer or Ownership Change shall be valid or binding on Lessor,
unless and until, Lessee shall deliver to Lessor (I) a duplicate original instrument of assignment
duly executed by Lessee, acknowledged before a notary public, in which Lessee, shall assign to
assignee all its right, title and interest in and to the Lease; (II) an instrument duly executed by the
proposed assignee, acknowledged before a notary public, in which such proposed assignee shall
assume observance and performance of, and agree to be personally bound by, all of the terms,
covenants and conditions of this Lease on Lessee's part to be performed; and (III) an instrument
duly executed by Guarantor (or its successor), in which Guarantor acknowledges that the
Guaranty shall remain and continue in full force and effect notwithstanding such assignment.
The joint and several liability of Lessee named herein (i.e., Comcast of Tualatin Valley, Inc.) and
any immediate and remote successor in interest of Lessee (by assignment or otherwise), and the
due performance of the obligations of this Lease on Lessee's part to be performed or observed,
shall not in any way be discharged, released or impaired by the assignment of this Lease or any
subletting of the Premises.
B. In the event that Lessee seeks Lessor's consent to a Transfer (other
than a Permitted Transfer or Ownership Change), Lessee shall provide Lessor with financial
statements for any proposed assignee, a fully executed copy of the proposed assignment,
sublease or other Transfer documentation, or a signed term sheet summarizing all material
business terms of the proposed Transfer, and such other information as Lessor may reasonably
request including current and adequate information regarding the financial status of the proposed
assignee and business of the proposed Transferee, together with information regarding the
principals or manager of the proposed Transferee (such information and summary the "Proposed
Transfer Statement "). Within thirty (30) days after receipt of the required information and
documentation, Lessor shall either: (a) consent to the Transfer by execution of a consent
agreement in a form reasonably designated by Lessor or (b) refuse to consent to the Transfer in
writing. Lessee shall indemnify Lessor from all loss, cost, liability, damage and expense,
including, but not limited to, reasonable counsel fees and disbursements, arising from any claims
against Lessor by any broker or other person, for a brokerage commission or other similar
compensation in connection with any such proposed Transfer, in the event (a) Lessor shall fail or
refuse to consent to any proposed Transfer, or (b) any proposed Transfer shall fail to be
consummated for any reason whatsoever. If Lessor fails to consent to the Transfer or disapprove
of the Transfer within said thirty (30) day period, and such failure continues for an additional
five (5) business days following notice from Lessee to Lessor, Lessor shall be deemed to have
consented to such Transfer. Lessor shall have no right to recapture all or any portion of the
00277970.12 28
•
Property in connection with a Transfer. Lessee shall reimburse Lessor on demand for any
reasonable costs or expense that may be incurred by Lessor's review of any Proposed Transfer
Statement or in connection with any . Transfer consented to by Lessor, including, without
limitation, reasonable attorneys' fees and disbursements and the reasonable costs of making
investigations as to the acceptability of the proposed transferee, all of which fees shall not exceed
an aggregate of $2,000.00.
C. If Lessee's interest in this Lease is assigned, whether or not in
violation of the provisions hereof, Lessor may collect Basic Rent and additional rent from the
assignee. If the Property or any part thereof is sublet to, or occupied by, or used by, any person
other than Lessee, whether or not in violation hereof, Lessor may, after default by Lessee under
this Lease and while such default may remain uncured, collect Basic Rent and additional rent
from the subtenant, user or occupant. In either case, no such assignment or sublease shall affect
or reduce Lessee's obligations hereunder, and Lessor shall apply the net amount collected to the
Basic Rent and additional rent reserved in this Lease.
D. Each sublease of the Property any part thereof shall be (and the
sublease shall expressly so state) subject to and subordinate to the provisions of this Lease, and,
except in the case of a Permitted Transfer, a duplicate original thereof shall be delivered to
Lessor fifteen (15) days prior to the commencement date of such sublease. Lessee agrees that in
the case of an assignment consented to by Lessor (other than Permitted Transfers and Ownership
Changes), Lessee shall, within fifteen (15) days prior to the effective date of any such
assignment, deliver to Lessor the documents required pursuant to Section 23A above. Except in
the case of a Permitted Transfer, any sublease consented to by Lessor must conform in all
material respects to the information contained in the Proposed Transfer Statement. All subleases
shall expressly provide that (a) in the event of the termination, re -entry or dispossess of Lessee
by Lessor under this Lease, Lessor may, at its option, take over all of the right, title and interest
of Lessee, as sublessor under the sublease, and such subtenant shall, at Lessor's option, attom to
Lessor pursuant to the then executory provisions of such sublease, except that Lessor shall not (i)
be liable for any act or omission of Lessee under such sublease prior to such attornment by
subtenant, (ii) be subject to any offset which accrued to such subtenant against Lessee, (iii) be
bound by any previous modification of such sublease or by any previous prepayment of more
than one month's rent unless such modification or prepayment was previously approved by
Lessor, (iv) be bound by any covenant to undertake or complete any construction of the
subleased premises, or any portion thereof, demised by such sublease and (v) be bound by any
obligation to make any payment to or on behalf of the subtenant, except for services, repairs,
maintenance and restoration provided for under the sublease to be performed after the date of
such termination, re -entry or dispossess by Lessor under this Lease and to which Lessor is
expressly required to perform under this Lease with respect to the subleased space at Lessor's
expense, it being expressly understood, however, that Lessor shall not be bound by any
obligation to make payment to or on behalf of a subtenant with respect to construction performed
by or on behalf of such subtenant in the subleased premises and (c) (i) the sublease is subject and
subordinate in all respect to this Lease and at Lessor's option, exercised in its sole discretion,
may be terminated if the event of an Event of Default under this Lease, and (ii) subtenant shall
not violate any of the terms and conditions of this Lease to be observed or performed by Lessee,
and (iii) Lessor may collect the sublease rent directly from the subtenant upon the occurrence of
00277970.12 29
•
an Event of Default.
E. Except in the case of a Permitted Transfer or Ownership Change, if
Lessee enters into any assignment or sublease (or other occupancy agreement) consented to by
Lessor, Lessee shall, promptly following the determination thereof, deliver to Lessor a list of
Lessee's reasonable third -party brokerage fees, legal fees and architectural fees paid or to be paid
in connection with such transaction and, in the case of any sublease, any actual costs incurred by
Lessee in separately demising the sublet space (collectively, "Transaction Costs "). Lessee shall
deliver to Lessor evidence of the payment of any Transaction Costs within 30 days after the same
are paid. Except in the case of a Permitted Transfer or Ownership Change, in consideration of
such assignment or subletting (or other occupancy agreement), Lessee shall pay to Lessor:
(i) In the case of an assignment, within thirty (30) days
following Lessee's receipt thereof, fifty (50 %) percent of all sums and other consideration paid
to Lessee by the assignee for or by reason of such assignment (excluding sums paid for the sale
or rental of Lessee's personal property) after first deducting the Transaction Costs; or
(ii) In the case of a sublease (or other occupancy agreement),
fifty (50 %) percent of any consideration payable under the sublease to Lessee by the Transferee
which exceeds on a per square foot basis the Basic Rent and Impositions payable by Lessee
accruing during the term of the sublease (or other occupancy agreement) in respect of the sublet
(or occupied) space after first deducting Transaction Costs. The sums payable under this clause
shall be paid by Lessee to Lessor within thirty (30) days following when paid by the subtenant
(or occupant) to Lessee.
If there exists an Event of Default, Lessor may require that all sublease
payments be made directly to Lessor, in which case, notwithstanding anything in this Lease to
the contrary, Lessor shall be entitled to receive one hundred (100 %) percent of all rent and other
consideration due, or paid to Lessee or any person affiliated with Lessee, pursuant to any and all
subleases or other occupancy agreements pertaining to the Property.
F. Notwithstanding anything to the contrary contained in this Section
23, Lessee may assign this Lease to a successor to Lessee by purchase, merger, consolidation or
reorganization (an "Ownership Change ") or assign this Lease or sublet all or any portion of the
Property to an Affiliate (as defined below) without the consent of Lessor, provided that all of the
following conditions are satisfied (a "Permitted Transfer "): (a) there does not exist an Event of
Default; (b) in the event of an Ownership Change, Lessee's successor shall own substantially all
of the assets of Lessee; (c) the permitted use does not allow the Property to be used in any
manner except as expressly provided in this Lease and (d) Lessee shall give Lessor written notice
of such transaction as soon as reasonably possible following the effective date thereof, but in no
later than sixty (60) days following the effective date thereof, and no such transaction shall be
binding upon Lessor until Lessee has notified Lessor thereof. Lessee's notice to Lessor shall
include (i) information and documentation evidencing the Permitted Transfer or Ownership
Change and showing that each of the above conditions has been satisfied and the (ii) the
documentation required pursuant to Sections 23A and D. "Affiliate" shall mean an entity
controlled by, controlling or under common control with Lessee.
00277970.12 30
G. If at any time after an assignment by Lessee named herein (i.e.,
Comcast of Tualatin Valley, Inc.), this Lease is not affirmed or is rejected in any bankruptcy
proceeding or any similar proceeding, or upon a termination . of this Lease due to any such
proceeding, Lessee named herein, upon request of Lessor given after such disaffirmance,
rejection or termination (and actual notice thereof to Lessor in the event of a disaffirmance or
rejection or in the event of termination other than by act of Lessor), shall (a) pay to Lessor all
Basic Rent, Impositions and other rents due and owing by the assignee to Lessor under this
Lease to and including the date of such disaffirmance, rejection or termination, and (b) as
"Lessee," enter into a new lease of the Property with Lessor for a term commencing on the
effective date of such disaffirmance, rejection or termination and ending on the Expiration Date,
at the same rents and upon the then executory terms, covenants and conditions contained in this
Lease, except that (i) the rights of Lessee named herein under the new lease shall be subject to
the possessory rights of the assignee under this Lease and the possessory rights of any persons or
entities claiming through or under such assignee or by virtue of any statute or of any order of any
court, (ii) such new lease .shall require all defaults existing under this Lease to be cured by
Lessee named herein with due diligence, and (iii) such new lease shall require Lessee named
herein to pay all rents which, had this Lease not been so disaffirmed, rejected or terminated,
would have become due under the provisions of this Lease after the date of such disaffirmance,
rejection or termination with respect to any period prior thereto. If Lessee named herein defaults
in its obligations to enter into such new lease for a period of thirty (30) days after receipt of
Lessor's request, then, in addition to all other rights and remedies by reason of default, either at
law or in equity, Lessor shall have the same rights and remedies against Lessee named herein as
if it had entered into such new lease and such new lease had thereafter been terminated as of the
commencement date thereof by reason of Lessee's default thereunder.
24. No Usury.
The intention of the parties being to conform strictly to the usury laws
now in force, whenever any provision herein provides for payment by Lessee to Lessor of
interest at a rate in excess of the legal rate permitted to be charged, such rate herein provided to
be paid shall be deemed reduced to such legal rate.
25. Intentionally Omitted.
26. Performance on Behalf of Lessee.
If Lessee defaults in the performance of its obligations under this Lease,
Lessor or Holder or any designee of either, without waiving such default, may perform such
obligations at Lessee's expense: (a) immediately, and without notice (but immediately followed
by written notice), in the case of emergency or if the default (i) results in a violation of any Legal
Requirement, or (ii) results or will result in a cancellation of any insurance policy maintained by
Lessor, and (b) in any other case if Lessee has not commenced to cure (and thereafter diligently
pursue such cure to completion) such default within ten (10) business days after the date Lessor
gives notice of Lessor's intention to perform the defaulted obligation. All reasonable costs and
expenses incurred by Lessor or Holder as a result of any default by Lessee under this Lease or in
00277970.12 31
connection with any such performance by it and all reasonable costs and expenses, including
reasonable counsel fees and disbursements, incurred by Lessor as a result of any default by
Lessee under this Lease or in any action or proceeding (including any unlawful detainer
proceeding) brought by Lessor or in which Lessor is a party to enforce any obligation of Lessee
under this Lease and/or right of Lessor in or to the Property, shall be paid by Lessee to Lessor on
demand, with interest thereon at the Prime Rate plus two (2 %) percent from the date incurred by.
Lessor.
27. Entry by Lessor.
Lessor and its authorized representatives, including, but not limited to the
Holder, shall have the right to enter the Property at all reasonable times and upon notice as
provided below (a) for the purpose of inspecting the same or for the purpose of doing any work
under Section 26 or otherwise permitted to be performed by Lessor hereunder, and may take all
such action thereon as may be necessary or appropriate for any such purpose (but nothing
contained in this Lease or otherwise shall create or imply any duty upon the part of Lessor to
make any such inspection or do any such work), and (b) for the purpose of showing the Property
to prospective purchasers and mortgagees and, at all reasonable times within twelve (12) months
prior to the expiration of the Demised Term for the purpose of showing the same to prospective
lessees, and (c) for the purpose of performing any work required to be performed by Lessor
hereunder. No such entry shall constitute an eviction of Lessee. Any such entry shall be subject
to the reasonable security requirements and procedures of Lessee and Lessor shall minimize
interference with Lessee's operations on the Property, and, except in an emergency, after not less
than two (2) business days written notice to the Lessee.
28. Events of Default/Remedies.
A. Each of the following occurrences shall constitute and be deemed
"Events of Default" or an "Event of Default ":
(i) if default shall be made in the payment of any Basic Rent,
when and as the same shall become due and payable and such default shall continue for a period
of five (5) business days after written notice by Lessor or the Holder to Lessee of such default; or
(ii) if default shall be made in the payment of any additional
rent or other sum payable under this Lease, when and as the same shall become due and payable,
and such default shall continue for a period of ten (10) days after written notice by Lessor or the
Holder to Lessee; or
(iii) if default shall be made by Lessee in the performance of or
compliance with any of the terms of this Lease other than those referred to in the foregoing
subdivisions (a) and (b), and such default shall continue for a period of thirty (30) days (or ten
(10) business days with respect to a default under the provisions of Section 18 hereof) after
written notice thereof by Lessor or the Holder to Lessee or where such default cannot be cured
within such thirty (30) day period, if Lessee, within such thirty (30) day period, shall not have
commenced and is not diligently proceeding to cure it; or
00277970.12 32
•
(iv) if Lessee named herein or any succeeding Lessee shall file
a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement, composition or readjustment, or
similar relief for itself or themselves under any present or future federal, state or other statute,
law or regulation, or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of such Lessee of all or any substantial part of its or their properties or of
the Property, or shall make any general assignment for the benefit of creditors or shall admit in
writing its or their inability to pay its debts generally as they become due; or
(v) if a petition shall be filed against Lessee named herein or
any succeeding Lessee or seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future federal, state or other statute,
law or regulation, and shall remain undismissed or unstayed for a period of ninety (90) days, or if
in connection with any such event any trustee, receiver or liquidator of such Lessee or of all or
any substantial part of any of their properties or of the Property shall be appointed without the
consent or acquiescence of such Lessee, as the case may be, and such appointment shall remain
unvacated or unstayed for a period of ninety (90) days.
B. (1) In the event of any Event of Default, then in addition to any
other remedies available to Lessor at law or equity, but no such remedies shall exceed those
remedies permitted pursuant to Oregon law, Lessor may exercise the following remedies:
(i) Lessor, upon five (5) days prior written notice, may
terminate Lessee's right to possession of the Property by any lawful means, in which case this
Lease shall terminate and Lessee shall immediately surrender possession of the Property to
Lessor. Such termination shall not affect any accrued obligations of Lessee under this Lease.
Upon termination, Lessor shall have the right to reenter the Property and remove all persons and
property. Lessor shall also be entitled to recover from Lessee:
(a) The worth at the time of award of the unpaid
rent and additional rent which had been earned at the time of termination;
(b) The worth at the time of award of the
amount by which the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that Lessee proves could
have been reasonably avoided;
(c) The worth at the time of award of the
amount by which the unpaid rent and additional rent for the balance of the Term after the time of
award exceeds the amount of such loss that Lessee proves could be reasonably avoided;
(d) Any other amount reasonably necessary to
compensate Lessor for all the detriment proximately caused by Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be likely to result
from Lessee's default, including, but not limited to, the cost of recovering possession of the
00277970.12 33
Property, commissions and other reasonable expenses of reletting, including necessary repair,
renovation, improvement and alteration of the Property for a new lessee, reasonable attorneys'
fees, and any other reasonable costs; and
(e) At Lessor's election, all other amounts in
addition to or in lieu of the foregoing as may be permitted by Oregon law. The term "rent" as
used in this Lease shall be deemed to mean the Basic Rent and all other sums required to be paid
by Lessee to Lessor pursuant to the terms of this Lease, including without limitation Impositions.
Any sum, other than Basic Rent, shall be computed on the basis of the average monthly amount
accruing during the twenty -four (24) month period immediately prior to default, except that if it
becomes necessary to compute such rental before the twenty -four (24) month period has
occurred, then the computation shall be on the basis of the average monthly amount during the
shorter period. As used in subparagraphs (1) and (2) above, the "worth at the time of award"
shall be computed by allowing interest at the rate of ten (10 %) percent per annum. As used in
subparagraph (3) above, the "worth at the time of award" shall be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one (1%) percent.
(ii) Lessor may elect not to terminate Lessee's right to
possession of the Property, in which event Lessor may continue to enforce all of its rights and
remedies under this Lease, including the right to collect all rent as it becomes due. Efforts by the
Lessor to maintain, preserve or relet the Property, or the appointment of a receiver to protect the
Lessor's interests under this Lease, shall not constitute a termination of the Lessee's right to
possession of the Property.
(2) The various rights and remedies reserved to Lessor in this
Lease or otherwise shall be cumulative and, except as otherwise provided by Oregon Law,
Lessor may pursue any or all of its rights and remedies at the same time. No delay or omission
of Lessor to exercise any right or remedy shall be construed as a waiver of the right or remedy or
of any breach or default by Lessee. The acceptance by Lessor of rent shall not be a (i) waiver of
any preceding breach or default by Lessee of any provision of this Lease, other than the failure of
Lessee to pay the particular rent accepted, regardless of Lessor's knowledge of the preceding
breach or default at the time of acceptance of rent, or (ii) a waiver of Lessor's right to exercise
any remedy available to Lessor by virtue of the breach or default. The acceptance of any
payment from a debtor in possession, a trustee, a receiver or any other person acting on behalf of
Lessee or Lessee's estate shall not waiver or cure of Lessee's default. No payment by Lessee or
receipt by Lessor of a lesser amount than the rent required by this Lease shall be deemed to be
other than a partial payment on account of the earliest due stipulated rent, nor shall any
endorsement or statement on any check or letter be deemed an accord and satisfaction and Lessor
shall accept the check or payment without prejudice to Lessor's right to recover the balance of
the rent or pursue any other remedy available to it. Lessee hereby waives any right or
redemption or relief from forfeiture under any present or future Oregon law, in the event this
Lease is terminated by reason of any default by Lessee. No act or thing done by Lessor or
Lessor's agents during the Term shall be deemed an acceptance of a surrender of the Property,
and no agreement to accept a surrender shall be valid unless in writing and signed by Lessor. No
employee of Lessor or of Lessor's agents shall have any power to accept the keys to the Property
00277970.12 34
• I
prior to the termination of this Lease, and the delivery of the keys to any employee shall not
operate as a termination of the Lease or a surrender of the Property.
29. Repossession, Reletting, etc., by Lessor.
At any time after any such expiration or sooner termination of the
Demised Term pursuant to Section 28 of this Lease, or pursuant to law, Lessor, without further
notice and with no liability to Lessee, may repossess the Property by any means provided by law,
including, but not limited to, summary or eviction proceedings, ejectment or otherwise, and may
remove Lessee and all other persons and any and all property from the same. At any time or
from time to time after any such expiration or sooner termination, Lessor may (but shall be under
no obligation to) relet the Property or any part thereof for the account of Lessee, in the name of
Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the balance of the
Demised Term) and on such conditions (which may include concessions or free rent) and for
such purposes as Lessor, in its uncontrolled discretion, may determine, and may collect and
receive the rents therefor. Lessor shall not be liable for any failure to relet or collect any rent due
upon any such reletting.
30. Survival of Lessee's Obligations.
No termination of the Demised Term pursuant to Section 28 of this Lease,
or pursuant to law, shall relieve Lessee of its liability and obligations under this Lease, all of
which shall survive any such termination.
31. Lessee's Waiver of Rights.
In the event of any .expiration or sooner termination of the Demised Term
pursuant to Section 28 or otherwise, Lessee, so far as permitted by law, waives any right of
redemption or reentry or repossession or to restore the operation of this Lease. Lessor and
Lessee each waives any right to a trial by jury in the event of or any proceedings in connection
with this Lease.
32. No Waiver, etc., by Lessor.
No failure by Lessor to insist upon the strict performance of any term of
this Lease or to exercise any right, power or remedy consequent upon a breach thereof, and no
acceptance of full or partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this
Lease, which shall continue in full force and effect with respect to any other then existing or
subsequent breach.
No failure by Lessee to insist upon the strict performance by Lessor of any
term of this Lease or to exercise any right, power or remedy consequent upon a breach thereof,
and no payment of full or partial rent during the continuance of any such breach shall constitute a
00277970.12 35 •
•
•
waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this
Lease, which shall continue in full force and effect with respect to any other then existing or
subsequent breach by Lessor.
33. No Adverse Possession.
Lessee shall not suffer or permit the Property or any part or parts thereof
to be used by the public, as such, without restriction or in such manner as might reasonably tend
to impair Lessor's title to the Property or any portion thereof, or in such manner as might
reasonably make possible a claim or claims of adverse usage or adverse possession by the public
as such, or of implied dedication of the Property or any portion thereof.
•
34. Lessor's and Lessee's Remedies Cumulative, etc.
Each right, power and remedy of Lessor provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power or remedy provided for in this
Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise
or beginning of the exercise by Lessor of any one or more of the rights, powers or remedies
provided for in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Lessor of any or all other such
rights, powers or remedies.
Each right, power and remedy of Lessee provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and
concurrent and, except as provided in this Lease by Lessee's waiver or otherwise, shall be in
addition to every other right, power or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or beginning of the
exercise by Lessee of any one or more of the rights, powers or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude
the simultaneous or later exercise by Lessee of any or all other such rights, powers or remedies,
except as provided in this Lease by Lessee's waiver or otherwise.
35. Subordination, Attornment.
A. Subject to the terms of paragraph F below, this Lease and all rights
of Lessee under this Lease are, and shall remain, subject and subordinate in all respects, to the
present mortgage or deed of trust and to any future mortgages or deeds of trust affecting the
Property and to all advances made or hereafter to be made under such mortgage or deed of trust,
and to all renewals, modifications, consolidations, correlations, replacements and extensions of,
and substitutions for such mortgage or deed of trust (all ' of such mortgage, deed of trust,
renewals, modifications, consolidations, correlations, replacements, extensions and substitutions
being referred to collectively as the "Mortgage ").
•
B. Notwithstanding the provisions of Section 35A, the Holder of any
Mortgage to which this Lease is subject and subordinate, as provided in said Section 35A, shall
00277970.12 36
have the right, at its sole option, at any time, to subordinate and subject its mortgage, in whole or
in part, to this Lease by recording a unilateral declaration to such effect.
C. At any time prior to the expiration of the Demised Term, Lessee
agrees, at the election and upon demand of any Holder, if the Holder is in possession of the
Property, to attorn, from time to time, to any such Holder upon the then executory terms and
conditions of this Lease, including, but not limited to, making payments for the remainder of the
Demised Term, provided that such Holder or Holders as the case may be shall then be entitled to
possession of the Property. The provisions of this Section shall inure to the benefit of any such
Holder and shall apply notwithstanding that, as a matter of law, this Lease may terminate upon
the foreclosure of any such Mortgage, shall be self - operative upon any such demand, and no
further instrument shall be required to give effect to said provisions. Lessee, however, upon
demand of any such Holder, agrees to execute, from time to time, instruments in confirmation of
the foregoing provisions of this Section, reasonably satisfactory to any such Holder and Lessee,
acknowledging such attornment and setting forth the terms and conditions of its tenancy.
Nothing contained in this Section shall be construed to impair any right otherwise exercisable by
any such Holder or Holders. It is agreed that Lessee shall not be required to execute such
requested instruments on more than four (4) occasions in any one calendar year.
D. Lessor represents that as of the date hereof, the only Holder is The
Benenson Capital Company LLC, as the beneficiary of a deed of trust (the "Existing Mortgage ")
on Lessor's fee interest in the Property (the "Existing Holder "). Prior to the Commencement
Date, as condition to Lessee's agreement hereunder to subordinate Lessee's interest in this Lease
to the Existing Mortgage, Lessor shall obtain for signature by Lessee from the Existing Holder a
subordination, non - disturbance, recognition and attomment agreement (an "SNDRA ") in a form
reasonably acceptable to Lessee, Lessor and the Existing Holder. Without limiting the
foregoing, the SNDRA shall provide that in the event the Existing Holder succeeds to Lessor's
interest in and to this Lease, any Lessor's Work, Generator Removal Work, Contributions and
Space Planning Contribution that remain to be performed and/or paid as of the date of attornment
shall be the obligation of the Existing Holder. As a condition to Lessee's agreement hereunder
to subordinate Lessee's interest in this Lease to any future Mortgage made between Lessor and
any Holder, Lessor shall obtain for signature by Lessee from each such future Holder an SNDRA
in the standard form customarily employed by such future Holder with such commercially
reasonable modifications as Lessee may request and which are acceptable to the Holder. The
form of SNDRA executed by and between Lessee and the Existing Holder shall not be binding
on any future Holder or Lessee. If Lessee shall fail or refuse, for any reason, to execute and
deliver to Lessor an SNDRA in proper form within ten (10) business days after delivery thereof
to Lessee, then, if such failure continues for five (5) business days after Lessee's receipt of a
second written request, Lessee's interest under this Lease shall be subordinate to the Mortgage in
question, provided, that the provisions of this sentence shall not apply if the Holder and Lessee
are in good faith negotiating the terms of an SNDRA.
36. Surrender of Property.
Upon any expiration or earlier termination of this Lease, Lessee shall
peaceably vacate and surrender to Lessor the Property in good order, condition and repair, except
00277970.12 3 7
for reasonable wear and tear, and as otherwise permitted by Sections 19 and 21 hereof. Any
holding over by Lessee of the Property after the expiration or earlier termination of the term of
this Lease or any extensions thereof, with the consent of Lessor, shall operate and be construed
as tenancy from month to month only, for the first ninety (90) days of such holdover at one
hundred twenty -five (125 %) percent of the Basic Rent reserved herein and upon the same terms
and conditions as contained in this Lease and thereafter at one hundred fifty (150 %) percent of
the Basic Rent reserved herein and upon the same terms and conditions as contained in this
Lease. Notwithstanding the foregoing, any holding over without Lessor's consent shall entitle
Lessor, in addition to collecting Basic Rent at a rate of (i) for the first ninety (90) days of such
holdover at one hundred twenty -five (125 %) percent of the Basic Rent reserved herein and upon
the same terms and conditions as contained in this Lease and (ii) thereafter one hundred fifty
(150 %) percent thereof, and, to exercise all rights and remedies provided by law or in equity,
including the remedies of Article 28. Notwithstanding anything to the contrary contained in this
Lease, Lessee shall have no obligation to remove or restore any of its alterations (including
Lessee's Initial Installation) at the expiration or earlier termination of the Demised Term.
However, Lessee agrees that Lessee shall remove at the expiration or earlier termination of the
Demised Term (i) all poles installed for the Pole Training Use and fill the resulting holes in the
ground and (ii) all of its trade fixtures, furniture and other items of personal property.
37. Quiet Enjoyment.
Lessor covenants that Lessee, upon paying the Basic Rent and all
additional rent and other sums payable hereunder and performing and complying with all the
terms hereof, shall, subject to the terms of this Lease, lawfully, peaceably and quietly hold,
occupy, possess and enjoy the Property during the Demised Term, without hindrance or .
molestation by Lessor or others claiming through Lessor, subject, however, to the terms of this
Lease.
38. Definition and Exculpation of Lessor/Limitation of Liability.
A. The term "Lessor" as used in this Lease, so far as covenants or
obligations on the part of Lessor are concerned, shall be limited to mean and include only the
owner or owners of the Property and the rents therefrom or holders of the Mortgage in
possession at the time in question of the Property and in the event of any transfer or transfers of
the title of the Property, the Lessor herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and relieved from and after the date
of such transfer and conveyance of all personal liability as respects the performance of any
covenants or obligations on the part of Lessor contained in this Lease thereafter to be performed,
provided that Lessor (or the transferee) has provided Lessee with the legal name and address of
the transferee.
B. • Notwithstanding anything contained in the preceding paragraph or
in any other provision hereof, Lessee shall look solely to the estate and interest of Lessor, its
successors and assigns, in the Property and/or any proceeds of insurance under policies carried
by Lessee for the collection of any judgment recovered against Lessor based upon the breach by
Lessor of any of the terms, conditions or covenants of this Lease on the part of Lessor to be
00277970.12 38
performed, and no other property or assets of Lessor or any direct or indirect partner, member,
manager, shareholder, equity holder, director, officer, principal, employee or agent of Lessor
(collectively, "Lessor Parties ") shall be subject to levy, execution or other enforcement
procedures for the satisfaction of Lessee's remedies under or with respect to either this Lease, the
relationship of Lessor and Lessee hereunder, or Lessee's use and occupancy of the Property and
neither Lessor nor the Lessor Parties shall be personally liable hereunder.
C. Wherever in this Lease Lessor's consent or approval is required, if
Lessor refuses to grant such consent or approval, whether or not Lessor expressly agreed that
such consent or approval would not be unreasonably withheld, delayed or conditioned Lessee
shall not make, and Lessee hereby waives, any claim for money damages (including any claim
by way of set -off, counterclaim or defense) based upon Lessee's claim or assertion that Lessor
unreasonably withheld, conditioned or delayed its consent or approval unless it shall be
determined by a court of competent jurisdiction that Lessor acted in so called "bad faith ".
Lessee's sole remedy shall be an action, proceeding or arbitration to enforce such provision, by
specific performance, injunction or declaratory judgment unless it shall be determined by a court
of competent jurisdiction that Lessor acted in so called "bad faith ". In no event shall Lessor be
liable for, and Lessee, on behalf of itself and all others claiming by, through or under Lessee,
hereby waives any claim for, any indirect, consequential or punitive damages, including loss of
profits or business opportunity, arising under or in connection with this Lease.
D. In no event shall Lessor or Lessee be liable for, and Lessee and
Lessor, on behalf of itself and all others claiming by, through or under it, hereby waives any
claim for, any indirect, consequential or punitive damages, including loss of profits or business
opportunity, arising under or in connection with this Lease.
39. Estoppel Certificate by Lessee.
Lessee shall, without charge, execute, acknowledge and deliver to Lessor
and/or the Holder, as the case may be, within ten (10) business days after request therefor (but no
such request shall be made more frequently than twice in any one calendar year by Lessor nor
more frequently than twice in any one calendar year by anyone Holder), a certificate certifying as
of the date thereof (a) that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the Lease is in full force and effect, as modified, and stating the
modifications), (b) the date, if any, to which the Basic Rent, had been paid, (c) whether or not
there are, to the best of Lessee's knowledge, then existing any defaults under this Lease or any
offsets or defenses against the enforcement of any term hereof on the part of Lessee to be
performed or complied with (and, if so, specifying the same) and (d) that no notice has been
received by Lessee of any default which has not been cured, or if any default for which notice
has been received has not been cured, specifying the nature and period of existence thereof and
what action Lessee is taking or proposed to take with respect thereto and (e) such other matters
as may be reasonably requested by Lessor or Holder.
40. Estoppel Certificate by Lessor.
Lessor will, without charge, execute, acknowledge and deliver to Lessee,
00277970.12 39
within ten (10) business days after request therefor, (but no such request shall be made more
frequently than twice in any one calendar year) a certificate certifying as of the date thereof (a)
that this Lease is unmodified and in full force and effect (or, if there have been modifications,
that this Lease is in full force and effect as modified and stating the modifications), (b) the date,
if any, to which the Basic Rent has been paid and (c) whether or not there are, to the best of
Lessor's knowledge, then existing any defaults under this Lease, and (d) such other matters as
may be reasonably requested by Lessee.
41. Acceptance of Surrender.
No surrender to Lessor of this Lease or of the Property or any part thereof or of
any interest therein by Lessee prior to the Expiration Date shall be valid or effective unless
required by the terms of this Lease or unless agreed to and accepted in writing by Lessor. Lessee
shall have the right to leave the Property vacant during the Demised Term or any renewal or
extension thereof provided that all of the provisions of this Lease are complied with by Lessee.
42. Notices, etc.
Each delivery, notice, demand, consent, request, certificate and other instrument
and communication required or permitted to be made or given under this Lease (collectively,
"Notices ") shall be in writing, and shall be considered properly given if sent by United States •
registered or certified mail, return receipt requested, postage prepaid, or by reputable next
business day delivery service requiring acknowledgement of receipt such as Federal Express
addressed (a) if to Lessor as follows:
c/o Benenson Capital Partners, LLC, as agent for Lessor
708 Third Avenue, 28th Floor
New York, New York 10017
Attention: Richard Kessler, COO
with a copy to:
Goldfarb & Fleece LLP
345 Park Avenue, 33rd Floor
New York, New York 10154
Attn: Partner -in- Charge, Benenson Capital
or at such other address as Lessor shall have furnished to Lessee in writing, or (b) if to Lessee as
follows:
Comcast of Tualatin Valley, Inc.
9605 SW Nimbus Avenue
Beaverton, OR 97008
Attn: Lease Administrator
00277970.12 40
with a copies to:
Comcast Cable Communications, LLC
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103 -2838
Attention: General Counsel
and
Comcast Corporation
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103 -2838
Attention: General Counsel
or at such other address as Lessee shall have furnished to Lessor in writing; and shall be deemed
to have been made or given on the date which is three (3) business days after it shall have been
mailed or one (1) business day after deposit with a reputable next business day delivery service,
as aforesaid.
Notwithstanding any other provision hereof, duplicate original copies of all
Notices made or given by Lessee (including, without limitation, any Termination Notice) shall
be made or given to the Holder as set forth in a notice sent by Holder to Lessee.
43. Late Charge.
If Lessee shall fail to make payment of any installment of Basic Rent or
any payment of additional rent as provided in this Lease within ten (10) days after such payment
is past due, Lessee shall pay to Lessor, in addition to such installment of Basic Rent or such
additional rent, interest thereon at the lesser of the following rates: (i) two (2 %) percent per
annum above the then current Prime Rate, or (ii) the maximum rate of interest permitted to be
charged by applicable law, such interest to be computed from the date such payment was due to
and including the date of payment.
44. Miscellaneous.
Neither this Lease nor any term hereof may be changed, waived,
discharged, amended, modified, extended or terminated orally, but only by an instrument in
writing signed by the party against which the enforcement of the change, waiver, discharge or
termination is sought. This Lease shall bind and inure to the benefit of Lessor and its successors
and assigns and Lessee and its successors and, except as herein otherwise provided, its assigns.
This Lease may be executed in any number of counterparts, each of' which shall be an original,
but all of which shall constitute one and the same instrument. All pronouns or any variation
thereof in this Lease shall be deemed to refer to masculine, feminine, neuter, singular or plural as
the identity of the person or persons may require. All of the provisions of this Lease shall be
00277970.12 - 41
deemed and construed to be "conditions" as well as "covenants" as though the words specifically
expressing or importing covenants and conditions be used in each separate provision hereof.
45. Broker.
Lessor and Lessee each represent and warrant to the other that Grubb &
Ellis Company and Apex Real Estate Partners (collectively, "Broker ") is the sole broker with
whom either party has negotiated or otherwise dealt with in connection with the Property or in
bringing about this Lease. Lessor and Lessee shall indemnify . each other from all loss, cost,
liability, damage and expense, including, but not limited to, reasonable counsel fees and
disbursements, arising from any breach of the foregoing representation and warranty. Lessor
shall pay any commission or compensation due hereunder pursuant to a separate agreement(s)
with Broker.
46. Separability.
Each and every covenant and agreement contained in this Lease is, and
shall be construed to be, a separate and independent covenant and agreement, and the breach of
any such covenant or agreement by Lessor shall not discharge or relieve Lessee from its
obligation to perform the same. If any term or provision of this Lease or the application thereof
to any person or circumstance shall to any extent be invalid and unenforceable, the remainder of
this Lease, or the application of such term or provision to a person or circumstance other than
that as to which it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to the extent permitted by law.
47. Lessee to Comply with Covenants, etc.
Lessee agrees that it will not use the Property, or any part thereof, nor
suffer nor permit the same to be used nor suffer nor do anything upon the Property, or any part
thereof, in any manner which may violate any of the Permitted Exceptions, and Lessee agrees
that it will observe and perform and will comply with and carry out the provisions of the
Permitted Exceptions required therein to be observed and performed by Lessor, excluding,
however, making any payments required to be made by the Lessor of the Property thereunder.
48. Headings.
The headings to the various sections of this Lease have been inserted for
convenience of reference only and shall not limit or otherwise affect the meaning thereof.
49. Trustee Exculpation.
Any trustee executing this Lease in a trust capacity shall be liable only in
such capacity and not individually or otherwise.
• 50. Lessee's Renewal Options.
00277970.12 42
A. Grant of Lessee Renewal Option: Provided the Lease is in force
and effect and there is then no monetary Event of Default, Lessee shall have the option to extend
the Demised Term (the "Renewal Option ") for two (2) additional renewal periods of five (5)
years (each such renewal period is referenced to herein as a "Renewal Term" and collectively as
the "Renewal Terms ") upon all of the executory terms and conditions of the Lease except as
otherwise provided for in this Section 50. The first such Renewal Term shall commence on the
day next following the Expiration Date of the initial Demised Term and ending on the 5
anniversary of the Expiration Date and the second such Renewal Period shall commence on the
date next following the last day of the first Renewal Term and ending on the fifth (5
anniversary of the last day of the first Renewal Term, provided that in order for Lessee to
exercise the each Renewal Option the following shall apply:
(i) Lessor receives Lessee's notice of exercise of the
applicable Renewal Option (a "Lessee's Renewal Notice ") on the date (the "Last Renewal
Notice Date ") which is not less than nine (9) full calendar months prior to the expiration of the
initial Demised Term or, if applicable, the last day of the first Renewal Term and not more than
24 full calendar months prior to the expiration of the initial Demised Term or, if applicable, the
last day of the first Renewal Term, which Lessee's Renewal Notice shall be accompanied by an
instrument duly executed by the Guarantor (or its successor), in which Guarantor acknowledges
that the Guaranty shall remain and continue in full force and effect during the applicable
Renewal Term (the "Guaranty Affirmation "). Time is of the essence with respect to the giving
of the Lessee's Renewal Notice and the Guaranty Affirmation on or before the applicable Last
Renewal Notice Date and any notice purporting to exercise the Renewal Option or not
accompanied by the Guaranty Affirmation after the Last Renewal Notice Date shall be void and
of no force or effect;
(ii) The Lease shall be in force and effect on the giving of such
Lessee's Renewal Notice and the commencement date of each Renewal Term;
(iii) There is then no monetary Event of Default under the Lease
at the time that Lessee delivers the Lessee's Renewal Notice or at the time Lessee delivers
Lessee's Binding Notice (as defined below);
(iv) The Lease has not been assigned or transferred (other than
pursuant Permitted Transfers or Ownership Changes) prior to the date that Lessee delivers
Lessee's Renewal Notice or prior to the date Lessee delivers Lessee's Binding Notice; and
(v) With respect to the second Renewal Term, Lessee shall
have exercised the Renewal Option for the first Renewal Term.
B. Terms Applicable to Property During Each Renewal Term:
(1) The Basic Rent for the Property for each applicable
Renewal Term shall equal ninety -five (95 %) percent of the fair market rent for the Property (as
more particularly defined in Section 50.F. below, the "Fair Market Rent "), provided, however,
00277970.12 43
that notwithstanding anything contained herein to the contrary, such Basic Rent shall not be less
than the aggregate amount of Basic Rent in effect on the Expiration Date, or if applicable . in the
last day of the first Renewal Period (such Basic Rent referred to herein as the "Minimum
Renewal Rent ").
(2) Lessee shall continue to pay all Impositions and other rents
and charges payable under this Lease during the applicable Renewal Term in accordance with
the terms of this Lease.
(3) If the Fair Market Rent has not been determined by the
commencement date of the applicable Renewal Term, Lessee shall pay Basic Rent upon the
terms and conditions in effect during the last month of the initial Demised Term, or if applicable
the last month of the first Renewal Term, until such time as the Fair Market Rent and Basic Rent
have been determined. Upon such determination, the Basic Rent for the Property shall be
retroactively adjusted to the commencement of the applicable Renewal Term for the Property. If
such adjustment results in an underpayment of Basic Rent by Lessee, Lessee shall pay Lessor the
amount of' such underpayment within thirty (30) days after the determination thereof.
(4) Lessee shall accept possession of the Property for each
Renewal Term, "As Is" without any obligation of Lessor to prepare the Property for Lessee and
Lessor shall have no obligation to perform any of Lessor's Work with respect therefor.
(5) If Lessee shall exercise its Renewal Option then the
Demised Term shall be extended for the applicable Renewal Term upon all of the executory
terms and conditions of this Lease except as specifically provided in this Section 50 and the
Expiration Date shall be extended for the last day of such Renewal Period unless the Demised
Term shall otherwise earlier expire pursuant to the provisions of this Lease or pursuant to law.
C. Procedure for Determining Fair Market Rent: Within 30 days
after receipt of Lessee's Renewal Notice, Lessor shall advise Lessee of Lessor's calculation the
applicable Fair Market Rent for the Property for the applicable Renewal Term, provided that
same is not less than the Minimum Renewal Rent (such Lessor's notice "Lessor's Fair Market
Rent Notice" and the Fair Market Value so presented by Lessor "Lessor's Fair Market Rent ").
Lessee, within 15 days of its receipt of Lessor's Fair Market Rent Notice, shall either (i) give
Lessor final binding written notice ( "Lessee's Binding Notice ") of Lessee's exercise of Lessee's
Renewal Option and acceptance of Lessor's Fair Market Rent proposed by Lessor in Lessor's
Fair Market Rent Notice, or (ii) if Lessee disagrees with Lessor's Fair Market Rent, then provide
Lessor with written notice of rejection of Lessor's proposed Fair Market Rent and Lessee shall
make a counter offer of its determination of the applicable Fair Market Rent (such notice of
Lessee the "Lessee's Rejection Notice" and the Fair Market Value so presented by Lessee
"Lessee's Fair Market Rent"). If Lessee fails to provide Lessor with either Lessee's Binding
Notice or Lessee's Rejection Notice within such 15 day period, then Lessee shall be deemed to
have accepted Lessor's Fair Market Rent and the Demised Term shall be extended for Renewal
Term based on Lessor's Fair Market Rent. If Lessee provides Lessor with Lessee's Rejection
Notice, Lessor and Lessee shall work together in good faith to agree upon the Fair Market Rent
for the Property for the applicable the Renewal Term. Notwithstanding the foregoing, if Lessor
00277970.12 44
and Lessee are unable to agree upon the Fair Market Rent for the Property for the applicable
Renewal Term within 30 days after the date Lessee provides Lessor with Lessee's Rejection
Notice, then either Lessor or Lessee, by written notice to the other (such notice the "Arbitration
Notice ") within 15 days after the expiration of such 30 day period, shall have the right to have
the Fair Market Rate determined by binding arbitration in accordance with the procedures
described below.
D. Arbitration Procedure -- Renewal Rent: In the event that either
Lessor or Lessee give such Arbitration Notice, then such Fair Market Rent shall be determined
by binding arbitration as follows:
(i) . Within thirty (30) days after notice by either party
requesting arbitration of the issue (i) the parties shall agree upon a single arbitrator to determine
such Fair Market Rent. If Lessor and. Lessee shall. have failed to agree upon such single
arbitrator within such period of thirty (30) days, then, upon the request of either Lessor or
Lessee, such single arbitrator shall be appointed by the American Arbitration Association, or its
successor pursuant to its rules for commercial matters;
(ii) The arbitrator to be selected, or appointed as above
provided, as the case may be, shall be a real estate appraiser or broker having at least twenty (20)
years of experience in determination of rents in the Tigard, Oregon area, with working
knowledge of current rental rates and practices, and shall be independent of and not employed or
affiliated with either Lessor or Lessee or any of their affiliates within the preceding five (5)
years;
(iii) Within ten (10) days following the selection or appointment
of the single arbitrator Lessor shall deliver to such arbitrator Lessor's Fair Market Rent Notice
and the Lessor's Fair Market Rent and Lessee shall deliver to such arbitrator Lessee's Rejection
Notice and the Lessee's Fair Market Rent;
(iv) The arbitrator, selected or appointed as aforesaid, forthwith
shall determine the applicable Fair Market Rent for the applicable Renewal Term and render its
decision as promptly as practicable solely by choosing either Lessor's Fair Market Rent or
Lessee's Fair Market Rent, and if only one (1) party submits a Fair Market Rent to the arbitrator
then the arbitrator shall choose the Fair Market Rent so submitted. The decision of such
arbitrator shall be in writing and shall be final and binding upon Lessor and Lessee whether or
not a judgment shall be entered in any court. Duplicate original counterparts of such decision
shall be sent by the arbitrator to both Lessor and Lessee; and •
(v) The arbitrator, in arriving at its decision as to which Fair
Market Rent to accept, shall be entitled to consider all testimony and documentary evidence
which may be presented at any hearing as well as facts and data which the arbitrator may
discover by investigation and inquiry outside of such hearings. The arbitrator shall be bound by
the provisions of this Lease and shall not add to, subtract from, or otherwise modify such
provisions. The cost and expense of such arbitration shall be borne equally by Lessor and
Lessee, except that each party shall pay its own counsel fees and expenses.
00277970.12 45
E. Renewal Amendment:
If Lessee is entitled to and properly exercises its Renewal Option, then this
Lease and the Term shall be extended for the applicable Renewal Period upon all of the
executory terms and conditions of the Lease upon the Basic Rent as determined by the provisions
of this Section 50. - Accordingly, Lessor shall prepare an amendment (the "Renewal
Amendment ") to reflect changes in the Basic Rent, Demised Term, Expiration Date with respect
to the applicable Renewal Term and other appropriate terms as agreed to by Lessor and Lessee.
The Renewal Amendment shall be sent to Lessee within a reasonable time after the
determination of the Fair Market Rent for the applicable Renewal Tenn, and, if the form and
substance of the Renewal Amendment is satisfactory to Lessee, Lessee shall execute and return
the Renewal Amendment to Lessor within 15 days after Lessee's receipt of same, but, upon the
failure of Lessee or Lessor to execute the Renewal Amendment shall not effect the renewal of
the Demised Term for the applicable Renewal Term, which shall be fully effective whether or
not the Renewal Amendment is executed.
F. Definition of Fair Market Rent:
For Purposes of the Renewal Option, the "Fair Market Rent" shall mean
the arms length fair market annual rental rate per rentable square foot under renewal leases and
amendments entered into on or about the date on which the Fair Market Rent is being determined
hereunder for property and improvements comparable to the Property and Improvements
assuming that such space is vacant and is leased in "as is" condition. The determination of Fair
Market Rent shall take into account all relevant factors, including any material economic
differences between the terms of this Lease and any comparison lease or amendment, such as
rent abatements, construction costs, tenant improvement allowance, broker fees and other
concessions and the manner, if any, in which the lessor under any such lease is reimbursed for
operating consideration and any reasonably anticipated changes in the Fair Market Rent from the
time such Fair Market Rent is being determined and the time such Fair Market Rent will become
effective under this Lease.
51. Extension of Time for Unavoidable Delays.
If any work or act required to be performed by Lessor or Lessee, as the
case may be, under this Lease shall be delayed by reason of unavoidable delays, the time within
which Lessor or Lessee shall perform such work or act shall be extended for the period of time
that Lessor or Lessee shall have been so delayed. The term "unavoidable delays" as used herein
means (a) the future enactment of any law or issuance of any governmental order, rule or
regulation (i) prohibiting or restricting construction of buildings or performance of work of the
character permitted or required to be constructed or performed by Lessor or Lessee under this
Lease, or (ii) establishing rationing or priorities in the use of materials, or (iii) restricting the use
of labor and (b) strikes, lockouts, acts of God, inability to obtain labor or materials, enemy
action, civil commotion, fire, .unavoidable casualty or other causes beyond the control of Lessor
or Lessee.
00277970.12 46
52. Laws of Oregon.
This Lease and the terms and provisions hereof shall be governed by and
construed inn accordance with the laws of Oregon.
53. Financial Statements.
Lessee shall submit to Lessor within 90 days of the end of each fiscal year
financial statements for Lessee. and Guarantor, certified by an independent public accountant.
The obligations of Lessee shall continue whether or not this Lease shall have been assigned. So
long as the Lessee under the Lease is the original named Tenant (i.e., Comcast of Tualatin
Valley, Inc.) or any successor pursuant to an Ownership Change or Permitted Transfer, Lessee •
shall not be required to submit such financial statement for Lessee (but shall continue to be
obligated to provide such financial statement for Guarantor) if such financial statements are not
regularly prepared for Lessee. In addition, so long as Lessee and Guarantor are public
companies listed on a public securities exchange and such statements are readily available to the
general public (e.g., published on such entities public website), Lessee shall not be required to
submit the same to Lessor.
54. Actions by Holder.
Whenever there is an Event of Default hereunder which is outstanding or
Lessee receives a written notice from the Holder that an Event of Default under the Mortgage is
outstanding, then (i) the Holder or its agent shall have the right, in the name and on behalf of
Lessor, to take all actions, and make all decisions, which Lessor is entitled to take or make under
the Lease, (ii) any actions taken or decisions made by such Holder or its agent in the name and
on behalf of Lessor (including, but not limited to, actions taken and decisions made pursuant to
Sections 28, 29 and 30), shall be deemed in all respects to constitute actions taken or decisions
made by Lessor and (iii) any such actions taken or decisions made by Lessor itself shall be
deemed void and of no force and effect unless Lessee receives written consent to such actions
from such Holder or its agent. Lessor hereby releases and discharges Lessee of and from any
liability to Lessor resulting from actions taken by Holder pursuant to this Section.
55. Hazardous Substances.
A. Lessee represents and warrants that it will not on, about, in or
under the Property make, treat or dispose of any Hazardous Materials, but the foregoing shall not
prevent the use of any such substances as are used in the normal conduct of Lessee's business on
the Property for the Primary Uses and are used and stored in accordance with Environmental
Laws and Lessee represents and warrants that it will at all times comply with the Environmental
Laws and any other federal, state or local laws, rules or regulations governing Hazardous
Materials. Hazardous Materials as used herein shall include, without limitation: hazardous
substances, all chemicals, petroleum, crude oil or any fraction thereof, hydrocarbons,
polychlorinated biphenyls (PCBs), asbestos, asbestos - containing materials and/or products, urea
formaldehyde, or any substances which are classified as "hazardous" or "toxic" under the Act;
hazardous waste, as defined under the Solid Waste Disposal Act, as amended 42 U.S.C. §6901;
00277970.12 47
air pollutants regulated under the Clean Air Act, as amended, 42 U.S.C. §7401, et seq.; pollutants
as defined under the Clean Water Act, as amended, 33 U.S.C. §1251, et seq.; any pesticide as
defined by Federal Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. § 136, et
seq.; any hazardous chemical substance or mixture or imminently hazardous substance or
mixture regulated by the Toxic Substances Control Act, as amended, 15 U.S.C. §2601, et seq.,
any substance listed in the United States Department of Transportation Table at 45 CFR 172.101;
any chemical included in regulations promulgated under the above listed statutes; any explosive,
any radioactive material, and any chemical regulated by state statutes similar to the federal
statutes listed above and regulations promulgated under such state statutes.
B. Supplementing the provisions of Section 22, to the fullest extent
permitted by law, Lessee will defend, protect, indemnify and save harmless, Lessor from and
against all liabilities, obligations, damages, penalties, claims, causes of action, costs, charges and
expenses, including reasonable attorneys' fees and expenses which may be imposed upon or
incurred by or asserted against Lessor by reason of the presence of the Hazardous Materials on
the Property after the Delivery Date which were introduced to the Property by or on behalf of
Lessee, its agents, contractors or employees.
C. Lessee represents and warrants that it will not install any
underground storage tank without specific, prior written approval from Lessor. Lessee will not
store combustible or flammable materials on the Property in violation of the Act and any other
federal, state or local laws, rules or regulations governing Hazardous Materials.
D. Supplementing the provisions of Section 22, to the fullest extent
permitted by law, Lessor will defend, protect, indemnify and save harmless, Lessee from and
against all liabilities, obligations, damages, penalties, claims, causes of action, costs, charges and
expenses, including reasonable attomeys' fees and expenses which may be imposed upon or
incurred by or asserted against Lessee by reason of the presence of the Hazardous Materials on
the Property prior to the Delivery Date. Without limiting the foregoing, so long as Tenant is not
utilizing the existing 10,000 gallon diesel fuel underground storage tank, Landlord agrees, at its
sole cost and expense, to be responsible for any and all remediation work required with respect
thereto.
56. Lessor's Defaults.
It shall constitute a default hereunder if, from and after the date of this Lease,
Lessor fails to keep, observe or perform any of its obligations to be kept, observed or performed
under this Lease within thirty (30) days after Lessor's receipt of notice of nonperformance from
Lessee; provided, however, that if such breach cannot reasonably be cured within thirty (30)
days, then within such additional time, if any, as is reasonably necessary to complete such cure,
so long as Lessor has commenced such cure within the initial thirty (30) day period and
diligently pursues such cure to completion; and, provided further, that in the event of a breach
that will materially and adversely affect the operation of Lessee's business on the Property,
Lessee may, in its notice of breach, reduce the period for Lessor to commence to cure to any
shorter period reasonable under the circumstances (but in no event less than ten (10) business
days), so long as Lessee states in its notice the exact nature of the threat to the operation of its
business. If Lessor fails to cure such default within the applicable time period, then Lessee may
elect, in addition to any and all other rights and remedies available to Lessee hereunder or at law
or in equity, to cure such default on behalf of Lessor, but Lessee shall be under no obligation,
00277970.12 48
express or implied, to do so. In such latter event, within thirty (30) days following the
presentation to Lessor of reasonable evidence that Lessee has reasonably expended reasonable
sums to cure such default as a result of Lessor's failure to cure such default, Lessor shall
reimburse Lessee for such expended sums, with interest thereon at the Prime Rate plus two (2 %)
percent from the date incurred by Lessee. Furthermore, such reimbursement obligation shall
survive the Expiration Date or sooner termination of this Lease.
57. Intentionally Omitted.
58. Lessee Work Allowances.
A. (1) Subject to the provisions and requirements of this Section
58, and provided that there then shall be no monetary or material non - monetary Event of Default,
Lessor shall contribute the sum of not more than TWO MILLION EIGHT HUNDRED
THIRTY -FIVE THOUSAND SIX HUNDRED TWENTY -FIVE and 00 /100 ($2,835,625.00)
DOLLARS (i.e., $32.50 per rentable square foot of the Building as the same exists as of the date
of this Lease) in the aggregate (but subject to increase pursuant to subsection (4) below) toward
the cost and expense actually incurred by Lessee with respect to Lessee's Initial Installation.
Lessor's contribution on account of Lessee's Initial Installation is referred to as "Lessor's Work
Contribution ". Irrespective of the actual cost and expense of Lessee's Initial Installation, except
for the Electrical Work Contribution, the Roof Work Contribution and the Space Planning
'Contribution (as such terms are defined below), in no event shall Lessor's Work Contribution
exceed the aggregate sum of TWO MILLION EIGHT HUNDRED THIRTY -FIVE THOUSAND
SIX HUNDRED TWENTY -FIVE and 00 /100 ($2,835,625.00) DOLLARS. Except as expressly
set forth below, in no event shall any of Lessor's Work Contribution be applicable to so- called
"Soft Costs" or any of Lessee's moveable equipment, fixtures, furniture or other items of
personal property including, without limitation, all moving expenses incurred by Lessee in
connection therewith (as opposed to so- called "hard costs" of Alterations that shall become
permanently affixed to the Premises). Lessor's Work Contribution may also be applied to the
following "soft- costs ": reasonable architectural, engineering, designers, permits, costs of
preparing construction documents, and costs of voice and data wiring, including the wiring of
furniture systems. The Lessor's Work Contribution shall not be increased by any expansion or
reconfiguration of the Building. The Lessor's Work Contribution shall be available from and
after the Delivery Date, however, up to TWO HUNDRED THOUSAND and 00 /100 DOLLARS
($200,000.00) of Lessor's Contribution with respect to the aforementioned permitted soft costs
shall be available following the date of this Lease.
(2) Subject to the provisions and requirements of this Section
58, and provided that there then shall be no monetary or material non - monetary Event of Default,
Lessor shall contribute the sum of not more than ONE HUNDRED TWENTY -ONE
THOUSAND and 00 /100 ($121,000.00) DOLLARS solely toward the "hard" cost and expense
(only) actually incurred by Lessee with respect to the portion of Lessee's Initial Installation, if
any, made to reconfigure the electrical systems in the portion of the Building used by the existing
lessee as a data center and to replace non - working ballasts in the Building (the "Electrical Work
Contribution "). In no event shall any of the Electrical Work Contribution be applicable to so-
called "Soft Costs" or any of Lessee's moveable equipment, fixtures, furniture or other items of
00277970.12 49
personal property. In the event that Lessee does not perform such electrical work, Lessee shall
not be entitled to any portion of the Electrical Work Contribution.
(3) Subject to the provisions and requirements of this Section
58, and provided that there then shall be no monetary or material non - monetary Event of Default,.
Lessor shall contribute the sum of not more than ONE HUNDRED EIGHTY -SEVEN
THOUSAND and 00 /100 ($187,000.00) DOLLARS solely toward the "hard" cost and expense
(only) actually incurred by Lessee with respect to the Roof Work (the "Roof Work
Contribution "). In no event shall any of the Roof Work Contribution be applicable to so- called
"Soft Costs" or any of Lessee's moveable equipment, fixtures, furniture or other items of
personal property.
(4) Subject to the provisions and requirements of this Section
•
58, and provided that there then shall be no monetary or material non - monetary Event of Default,
with respect to any general refurbishment of the Building performed by Lessee at any time
following the sixth (6 ) anniversary of the Commencement Date, Lessor shall contribute the sum
of not more than FOUR HUNDRED THIRTY -SIX THOUSAND TWO HUNDRED AND
FIFTY and 00 /100 ($436,250.00) DOLLARS (i.e., $5.00 per rentable square foot of the Building
as the Building exists as of the date of this Lease) solely toward the "hard" cost and expense
(only) actually incurred by Lessee with respect to the general refurbishment of the Building (the
"Refurbishment Contribution "). In no event shall any of the Refurbishment Contribution be
applicable to so- called "Soft Costs" or any of Lessee's moveable equipment, fixtures, furniture
or other items of personal property. The Refurbishment Contribution shall not be increased by
any expansion or reconfiguration of the Building. Notwithstanding the foregoing, Lessee, at
Lessee's option, in Lessee's sole discretion may elect to apply the Refurbishment Contribution to
Lessee's Initial Installation, and, if Lessee so elects, for purposes of the payment to Lessee of the
Lessor's Work Contribution and the Refurbishment Contribution, the Lessor's Work
Contribution shall be deemed to be increased by the amount of the Refurbishment Contribution
such that the two (2) Contributions shall be administered as a single Contribution, and Lessee
shall no longer be entitled to that portion of the Refurbishment Contribution applied to the
Lessee Initial Installation following the sixth (6 anniversary of the Commencement Date as
provided above, it being understood and agreed, however, that Lessor shall not be obligated to
secure or guaranty (pursuant to paragraph B below or otherwise) the payment of any portion of
the Refurbishment Contribution not so applied to the Lessee Initial Installation. Lessee may
make such election at any time on or before December 1, 2012. If Lessee makes such election at
any time prior to August 1, 2012, the Refurbishment Contribution shall be deemed a portion of
Lessor's Secured Obligations (as defined below) and will be secured pursuant to the terms of
paragraphs 58B(5) and (6) below. If Lessee makes such election at any from and after August 1,
2012 and on or before December 1, 2012, the Refurbishment Contribution shall be available to
Lessee pursuant to the terms of this Section 58, but shall neither be a portion of Lessor's Secured
Obligations nor secured as provided in paragraphs 58B(5) and (6) below.
(5) Provided that there shall be no Event of Default, Lessor
shall contribute the sum of not more than EIGHT THOUSAND SEVEN HUNDRED AND
TWENTY -FIVE and 00 /100 ($8,725.00) DOLLARS (Le., $0.10 per rentable square foot of the
Building as the same exists as of the date of this Lease) in the aggregate solely toward fees
00277970.12 50
architectural incurred by Lessee's to prepare a space plan for Lessee's Initial Installation (the
"Space Plan Contribution "). Lessor shall pay the Space Plan Contribution to Lessee or Lessee's
architect, as directed in writing by Lessee, within thirty (30) days following the later to occur of
(i) the date of this Lease and (ii) Lessee's requisition therefore accompanied by a copy of the
space plan and Lessee's architect's bill therefor. In the event that Lessee does not prepare a
space plan, Lessee shall not be entitled to any portion of the Space Plan Contribution. The Space
Plan Contribution shall not be increased by any expansion or reconfiguration of the Building.
(6) Lessor's Work Contribution, the Electrical Work
Contribution, the Roof Work Contribution and the Refurbishment Contribution shall each
individually be referred to as a "Contribution" or collectively be referred to as the
"Contributions ".
•
B. Payment of Contributions.
(1) Subject to the following provisions, including paragraph (2)
below, and provided that there shall be no Event of Default, Lessor shall distribute each
Contribution on account of the applicable work as the work with respect thereto progresses, upon
Lessee's submission to Lessor of a requisition therefor signed and certified as true and correct by
an authorized officer of Lessee, which shall be accompanied by (i) with the exception of the first
requisition, copies of partial waivers of lien from all contractors, subcontractors and material
suppliers covering all work and materials which were the subject of previous progress payments
by Lessor and Lessee, (ii) copies of conditional waivers of lien from the general contractors, and
subcontractors (with contracts in excess of $10,000.00) covering all work and materials which
are the subject of the current requisition, (iii) paid receipts or other evidence of payment, in a
form reasonably acceptable to Lessor, for the materials and all permitted soft -costs which were
the subject of the prior requisition, (iv) a certification from Lessee's architect that the work for
which the requisition is being made has been completed substantially in accordance with the
plans and specifications approved by Lessor, (v) such other documents and information as Lessor
may reasonably request, (vi) completed AIA Documents G702 and G703 with respect to the
work which is the subject of the current requisition; and (vii) Lessee's direction to whom
payment shall be made, either to Lessee or Lessee's general contractor, contractors or
consultants, (i) through (vii), collectively, "Requisition Requirements "), provided however, that
at no time shall Lessor be required to pay more than the value of the work in place, and provided
further that any such work shall comply with the requirements of this Lease. Distributions of the
Contributions shall be made not more than monthly. Lessor will make payment of the amount
requested by Lessee in each requisition to Lessee or Lessee's general contractor, as directed by
Lessee, within thirty (30) days following Lessor's receipt of all of the Requisition Requirements
with respect thereto. In the event Lessor fails to pay any requisition meeting the Requisition
Requirements within such thirty (30) day period and such failure continues for ten (10) business
days following Lessee's giving to Lessor notice of such failure, Lessee may offset such unpaid
amounts against the next installments of Basic Rent due under this Lease.
•
(2) Notwithstanding the aforesaid, Lessor shall not be required
to disburse the last ten (10 %) percent of any Contribution until the occurrence of all of the
following: (i) completion of the applicable work in accordance with the plans and specifications
00277970.12 51
approved by Lessor and otherwise in accordance with the provisions of this Lease and a
certification by Lessee's architect or designer to that effect, (ii) proof in form reasonably
satisfactory to Lessor of complete payment by Lessee of the cost and expense of such work
(including copies of all paid bills and invoices from all material suppliers and with respect to
permitted soft -costs not previously delivered to Lessor and receipt of final waivers of mechanics
liens from all the general contractors, and subcontractors (with contracts in excess of
$10,000.00), (iii) proof that all consents, approvals or signoffs to be obtained by Lessee under
any Legal Requirements or as required by any governmental authority have been obtained and
(iv) Lessor's receipt from Lessee of final "as- built" plans and specifications for such work and
(v) completed AIA Documents G702 and G703 with respect to all of the applicable work; upon
compliance of the aforesaid, then, provided that no monetary or material non - monetary Event of
Default is then continuing the balance of the applicable Contribution shall thereafter be
distributed to Lessee or Lessee's general contractor, as directed by Lessee, in accordance with
the provisions of this Section 58.
(3) The making of each Contribution and the Space Plan
Contribution by Lessor shall each constitute a single nonrecurring. obligation on the part of
Lessor. In the event this Lease is renewed or extended for a further term by agreement or
operation of law, Lessor's obligation to give the Contributions and the Space Plan Contribution
or any part thereof shall not apply to any such renewal or extension. Any portion of the
Contributions (other than the Refurbishment Contribution, so long as Lessee has not elected to
include the same with Lessor's Work Contribution) or the Space Plan Contribution for which
Lessee has not made full and complete requisition meeting all of the Requisition Requirements
(other than the Space Plan Contribution which need not meet the Requisition Requirements) on
or before the date which is twelve (12) months following the Commencement Date shall be
retained by Lessor.
(4) The right to receive the Contributions and the Space Plan
Contribution is for the exclusive benefit of Lessee, and in no event shall such right be assigned to
or be enforceable by or for the benefit of any third party, including any contractor, subcontractor,
materialman, laborer, architect, engineer, attorney or other person or entity. Lessee
acknowledges and agrees that Lessor is merely acting on behalf of Lessee in connection with the
disbursement of the Contributions and the Space Plan Contribution in accordance with the
provisions of this Section 58 to Lessee for the contractors, subcontractors and material suppliers
employed in connection with the applicable work, and that Lessor shall have no obligation,
liability or responsibility to any of the contractors, subcontractors, materialmen, laborers,
architects, engineers, attorneys or other person or entity seeking any of the Contributions or
Space Plan Contribution pursuant to any of the aforesaid contracts or agreements with such
contractors, subcontractors, materialmen, laborers, architects, engineers, attorneys or other
person or entity or otherwise, provided that Lessor shall be obligated to disburse such
Contributions and the Space Plan Contribution only as expressly provided by the provisions of
this Section 58. Nothing contained in this Section 58 shall relieve Lessee of any obligations or
liabilities to such contractors, subcontractors, materialmen, laborers, architects, engineers,
attorneys or other person or entity under such contracts, agreements or otherwise. Lessee shall
indemnify Lessor and Lessor's Indemnitees from all loss, cost, liability and expense, . including
but not limited to reasonable counsel fees, incurred in connection with, or arising from, any
00277970.2 52
claims or actions by any contractors, subcontractors, materialmen, laborers, architects, engineers,
attorneys or other person or entity employed in connection with Lessee's Initial Installation, the
Roof Work, the Electrical Work, Refurbishment Work or any other applicable work or
alterations.
(5) In order to provide Lessee with security for the payment of
Lessor's obligations to pay Lessee's Pre - Development Costs, Lessor's Work Contribution, the
Electrical Work Contribution, the Roof Contribution, the Refurbishment Contribution (but only
if and to the extent Lessee elects to use the same for Lessee's Initial Installation prior to August
1, 2012), the Space Plan Contribution (if not previously paid to Lessee) and, if elected by Lessee
prior to August 1, 2012, Lessor's Additional Contribution (collectively, the "Lessor's Secured
Obligations "), prior to the December 1, 2012, Lessor shall deliver to Lessee (or perform) any one
(1) of the following in Lessor's sole discretion: (i) reasonable evidence that Lessor has obtained
financing from a third -party institutional lender providing for the funding of an amount at least
equal to Lessor's Secured Obligations pursuant to terms substantially consistent with the
Requisition Requirements (or with respect to Lessee's Pre - Development Costs and the Space
Plan Contribution, substantially consistent with the requirements for Lessor's payments of such
amounts pursuant to this Lease), and an SNRDA from such institutional lender which provides
for the lender's agreements to fund the Lessor's Secured Obligations and, in the event lender
succeeds to Lessor's interests as lessor under the Lease, to either recognize the Lessor's Secured
Obligations or to recognize Lessee's rights of offset if Lessor fails to timely pay the Lessor
Obligations; (ii) a clean, irrevocable, non - documentary and unconditional letter of credit in an
amount at least equal to the Lessor's Secured Obligations (the "Letter of Credit ") issued by and
drawable upon any Federal or State chartered commercial bank, trust company, national banking
association or savings and loan association (the "Issuing Bank ") or (iii) a guaranty from an entity
or person(s) reasonably acceptable to Lessee in the form of guaranty attached hereto as Exhibit
D. Upon the occurrence of the Delivery Date, Lessor's Secured Obligations shall no longer
include the Lessee's Pre- Development Costs and any such amounts shall be excluded from any
guaranty on the Delivery Date, or, if Lessor provides the Letter of Credit, Lessor may then
reduce the Letter of Credit by such amount.
(6) If Lessor elects to provide a Letter of Credit, the Letter of
Credit shall (a) name Lessee as beneficiary, (b) have a term expiring one year following the
Delivery Date, (c) permit multiple drawings, (d) be fully transferable by Lessee, (e) permit
Lessee to draw upon the Letter of Credit by overnight courier to the Issuing Bank's designated
office, and (f) otherwise be in a commercially reasonable form. If upon any transfer of the Letter
of Credit, any fees or charges shall be imposed, then such fees or charges shall be payable solely
by Lessee. If Lessor fails to pay any requisition of the Lessor's Secured Obligations within
thirty (30) days following Lessor's receipt of all of the Requisition Requirements (or within 30
days of submission of invoices with respect to Lessee's Pre - Development Costs as provided in
Paragraph 1E or within 30 days of Lessee's submission of Lessee's architect's bill and space
plan with respect to the Space Plan Contribution) with respect thereto, and such failure shall
continue for ten (10) business days following Lessee's giving of notice to Lessor of such failure,
Lessee shall have the right by sight draft to draw on the Letter of Credit to the extent required for
the payment of such amount(s) for which Lessee shall have made requisition satisfying the
Requisition Requirements (or invoices with respect to the Lessee's Pre - Development Costs or
00277970.12 53
•
Lessee's architect's bill and space plan with respect to the Space Plan Contribution) and which
Lessor shall have failed to so pay. Lessee shall retain the proceeds of such draw as payment for
the amount(s) which Lessor failed to so pay. The Letter of Credit shall be returned to Lessor
upon the date Lessor shall have paid to Lessee the entire Lessor's Secured Obligations. Lessor
shall have the right, from time -to -time, but not more frequently than once per month, to reduce
the amount of the Letter of Credit to an amount equal to the then aggregate amount of the
Lessor's Secured Obligations which has not been paid to Lessee and remains outstanding. At
any time from after the Delivery Date, the Letter of Credit may be reduced by an amount equal
to Lessee's Pre- Development Cost. At any time from and after the date which is one (1) year
following the Delivery Date, the Letter of Credit may be reduced by the amount of Lessor's
Secured Obligations for which Lessee has not made requisition meeting the Requisition
Requirements (or delivery of Lessee's architect's bill and space plan with respect to the Space
Plan Contribution). If such amount will reduce the Letter of Credit to zero, then the Letter of
Credit shall be returned to Lessor. The Letter of Credit may be reduced by Lessor either by
substitution of a new Letter of Credit in the reduced amount or an amendment to the existing
Letter of Credit. Lessee and promptly reasonably cooperate with Lessor and the Issuing Bank in
effecting such reduction.
(7) Within forty -five (45) business days following the
Substantial Completion of Lessee's Initial Installation, Lessee shall deliver to Lessor a statement,
certified by an authorized officer of Lessee, setting forth Lessee's actual costs and expenses
incurred with respect to Lessee's Initial Installation which are subject to reimbursement by
Lessor by payment of Lessor's Secured Obligations. Such statement shall (i) be accompanied by
supporting bills and invoices, (ii) separately allocate the applicable costs and expenses to the
applicable Lessor's Secured Obligation and (iii) identify all amounts by which each particular
Lessor's Secured Obligation exceeds the actual costs and expenses incurred by Lessee in •
performing the portion of Lessee's Initial Installation applicable to such Lessor's Secured
Obligation (such excess amounts, individually an "Excess Obligation" and collectively "Excess
Obligations "). In the event there exists any Excess Obligation, if Lessor elected to provide a
Letter . of Credit, Lessor may reduce the amount of the Letter of Credit by the amount of all
Excess Obligations. If such reduction reduces the amount of the Letter of Credit to zero, the
Letter of Credit shall be returned to Lessor. In the event that Lessee fails to timely deliver such
statement following the Substantial Completion of Lessee's Initial installation, Lessor shall have
no obligation to pay any outstanding or additional requisitions made by Lessee for payment of
any of the Lessor's Secured Obligations until such statement is delivered to Lessor.
59. Lessor's Additional Contribution.
A. In the event that that the total "hard" cost and expense of Lessee's
Initial Installation will exceed the sum of the aggregate amount of Lessor's Work Contribution,
the Electrical Contribution and, if applicable, the Refurbishment Contribution, as evidenced by
copies of Lessee's construction contracts for Lessee's Initial Installation and a certification from
an authorized officer of Lessee (such excess cost and expense as set forth on such certification
and as evidenced by such contracts, the "Lessee's Excess Initial Installation Cost "), . then at the
request of Lessee, by notice from Lessee given to Lessor on or before December 1, 2012,
provided there then exists no monetary or material non - monetary Event of Default, Lessor shall
00277970.12 54
provide to Lessee an additional contribution (which shall be repaid by Lessee to Lessor, with
interest, as provided below) toward the total "hard" cost and expense of Lessee's Initial
Installation in an amount equal to the Lessee's Excess Initial Installation Cost upon the terms and
conditions of this Section 59 (such contribution, "Lessor's Additional Contribution ". However,
notwithstanding the aforesaid, Lessor's Additional Contribution shall not exceed the sum of
Eight Hundred Seventy Thousand ($870,000.00) DOLLARS. If Lessee so requests Lessor's
Additional Contribution at any time prior to August 1, 2012, Lessor's Additonal Contribution
shall be deemed a portion of Lessor's Secured Obligations and will be secured pursuant to the
terms of paragraphs 58B(5) and (6). If Lessee so requests Lessor's Additional Contribution at
any from and after August 1, 2012 and on or before December 1, 2012, Lessor's Additonal
Contribution shall be available to Lessee pursuant to the terms of this Section 59 and Section 58,
but shall neither be a portion of Lessor's Secured Obligations nor secured as provided in
paragraphs 58B(5) and (6). Lessor shall disburse the Lessor's Additional Contribution to Lessee
only following the disbursement of the entire Lessor's Work Contribution, the Electrical
Contribution and, if applicable, the Refurbishment Contribution, and disbursement of the
Lessor's Work Contribution shall be pursuant to the same terms and conditions as for the
disbursement of a Contribution as if Lessor's Additional Contribution were a Contribution.
Lessee shall repay to Lessor Lessor's Additional Contribution in the certain number of
installments equal to the number of full calendar months remaining in the initial Demised Term
(without giving effect to any Renewal Term) following the date of Lessor's disbursement to
Lessee of Lessor's Additional Contribution. Such repayment shall begin on the first (1' day of
the month next following the month in which the Lessor's Additional Contribution is disbursed
to Lessee and shall thereafter be made on the first (1') day of each month thereafter until the
Lessor's Additional Contribution is repaid in full (such monthly installments the "Contribution
Repayment Installments "), provided that notwithstanding such monthly installments, such
Lessor's Additional Contribution shall be repaid in full to the extent otherwise provided for in
this Lease. In addition to the payments to Lessor of the Contribution Repayment Installments,
Lessee also shall pay to Lessor monthly interest on the outstanding amount of Lessor's
Additional Contribution which has not yet been repaid to Lessor at a rate equal to seven (7 %)
percent per annum and interest shall be paid together with the Contribution Repayment
Installments on the first 1 day of each month until the Lessor's Additional Contribution is
repaid in full (such monthly payments of interest the "Repayment Interest Payments "). The
Contribution Repayment Installments and the Repayment Interest Payments are collectively
referred to individually as a "Lessee's Repayment Payment" and collectively as the "Lessee's
Repayment Payments ". The Lessee's Repayment Payments shall be paid in the same manner as
Basic Rent to such entity as Lessor shall direct and Lessor shall have all of the same rights and
remedies with respect to any failure of Lessee to timely pay any Lessee Repayment Payment as
Lessor has with respect to the failure of Lessee to timely pay Basic Rent.
B. Payment of the Lessor's Additional Contribution . Lessee may
pay the entire amount of the Lessor's Additional Contribution which has not yet been repaid to
Lessor, together with any unpaid accrued interest thereon at any time. Lessee's obligation to
repay the full amount of Lessor's Additional Contribution and all interest thereon'as provided for
in this Section 59 shall survive the termination or expiration of the Lease and the Demised Term.
Lessee's obligation to repay the full amount of Lessor's Additional Contribution and all interest
thereon as provided for in this Section 59 shall be for the benefit of Lessor and its successor and
00277970.12 55
assigns. Lessor may collaterally assign the Lessee's Repayment Payments to a Holder. The
entire outstanding amount of the Lessor's Additional Contribution shall become immediately due
and payable upon the occurrence of any of the following: (i) this Lease shall terminate whether
pursuant to any of the provisions there of or pursuant to law, (ii) Lessee shall default in the
making of any Lessee's Repayment Payment when due and such default shall continue for more
than five (5) business days after Lessor's notice to Lessee of such default; (iii) if Lessee shall file
a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent,
or shall file any petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or any future federal
bankruptcy act or any other present or future applicable federal, state or other statute or law, or
shall make an assignment for the benefit of creditors, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of Lessee or of all or any part of Lessee's
property; or (iv) if, within ninety (90) days after the commencement of any proceeding against
Lessee, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the present or any
future federal bankruptcy act or any other present or future applicable federal, state or other
statute or law, such proceeding shall not have been dismissed, or if, within ninety (90) days after
the appointment of any trustee, receiver or liquidator of Lessee, or of all or any part of Lessee's
property, without the consent or acquiescence of Lessee, such appointment shall not have been
vacated or otherwise discharged, or if any execution or attachment shall be issued against Lessee
or . any of Lessee's property pursuant to which the Property shall be taken or occupied or
attempted to be taken or occupied.
(SIGNATURE PAGE FOLLOWS)
00277970.12 56
•
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the
day and year first above written.
LESSOR:
The Benenson 68 Parkway Key LLC,
By: Benenson Capi 1 Partners LLC, as agent
for Lessor
By:
Name: ctjcid /g• kej!
Title: /9 a #
LESSEE:
• Comcast of Tualatin Valley, Inc.
By:
me: rerald C. O'Brien
Title: Vice President - Real Estate
•
00277970.12 57
EXHIBIT A
(See Attached)
00277970.12 1
SCHEDULE A
•
•
The Land is located in the County of Washington and Stele of Oregon, and Is described as
' follows:
Description of a parcel of land situated in the Southeast one-quarter of Section 36, Township 1 .
South, Range 1 West, Willamette Meridian, City of.Tigard, County of Washington and State of
Oregon, said parcel being a part of that certain tract of land conveyed to Pordand General
yearn Company by Bargain and Sale Deed recorded January 29, 1962 in Book 456, Page 433,
Deed Records for Washington County, Oregon, said parcel more particularly described as
follows:
•
•
Beginning at a brass cap monument marling the East one.quarter corner of Section 36,
Township 1 South, Range 1 West, Willamette Meridian; thence North 87 West 474.15
feet to the iaidal point of "WAY LEE ", a recorded plan thence continuing North 87 °41'06'
West along the South line of said plat 188.60 feet to a point therein and the Northwest corner of
the aforesaid Portland General Electric Company tract of Land; thence South 01 °48'51" West •
along the West line of said tract 657,47 feet to the Northeast corner of that certain parcel of land
described in Washington County Recorder's Fee No. 87061375; thence North 88°11'35" West
along the North line thereof 78.28 feet to the Northwest corner thereof, said corer being la the
Easterly right of way line of S.W. 68th Parkway, a dedicated street 60.00 feet wide; thence
• along said line along the arc of a non- tangent 340.00 foot radius curve left 24.60 feet through a
central angle of 04 (the chord bears South 37°25'59° 'East 24.59 feet) to a point of
tangency; thence South. 39°30'20" East 114.11 feet to the beginning of a tangent 359.50 foot
rafius carve right; thence along the arc of said carve 42.04 feet through a central angle of
06 °42'03" (the chord bears South 36 °09'18" East 42.02 feet) to a point therein; thence leaving
said right of way line North 50°32'07" East 113.50 feet; thence South 84°27'53° East 314.61 .
feet to a point in the Westerly right of way line of Interstate 5; thence along said line North
. 06 °19'27" East 13.50 feet to a point 195.00 feet right of Engineers Centerline Station 34+00
P.O.S : thence continuing along said line North 25°22'42" East 562.74 feat to a point which
bears South 25°22'42" West 67.01 feet from a point 160.00 feet right of Engineers Centerline
Station 28 +00 P.O.C.; said point being in the East line of Seaton 36, aforesaid; thence along
said section line North 01 °31'36' East 205.82 feet to the point of beginning.
TOGETHER WITH the following ingress egress and underground utility easements, deserted
• as a strip of land 25.00 feet I width, for access and underground utility parposes situated in the
Southeast one-quarter of Section 36, Township 1. South, Range 1 West, Wilmette Meridian, •
Cry of Tigard, County of Washington and State of Oregon, described as follows:
• Commencing • at the Northwest comer of that certain parcel of land described in Washington
County Recorders Fee No, 87061375, said comer being in the Easterly right of way fine of S.W..
•
•
•
4
. 68th Pathway, a dedicated street 60.00 feet wide; thence along du Westerly line of said parcel
- (and the Easterly line of said street) along the arc of a non - tangent 340.00 foot radhrs curve left
24.60 feet, t a central angle of 04°08'42° (the chord bears South 3P29'59° East 24.59 .
feet) to a point of tangency; theme along the Easterly lice of said street South 39°30'20" Fast
114.11 feet to'the beginning of a tangent 359.50 foot radios nave to the right; thence along the
arc of said curve 42.04 feet through a central angle of 06 °42'03' (the chord bears South '
• 36°09'19' Fast 42.02 feet) to the true point of begiming of the hereinafter described easement;
them leaving said right of way line North S0°32'07° East I13.50 feet; thence South 84`27'53'
East 35.36 feet;• thence South 50°32'07" West 142.32 feet to a point on the Easterly right of way
lime of S.W. 68th Parkway, aforesaid; thence along•the are of a non-tangent 359.50 foot radius
carve left 25.29 feet through a central angle of•04 °01'53 • (du chord bears North 30 °47'21" •
West 25,29 feet) to the point of be • , . •
TOGETHER WITH all easements granted or referenced by that certain Declaration of
Restrictions recorded November 23, 1988, as Pee Number 88 -52298 for the benefit of the above
descrbed property, including, without limhadon the right to a second access road as described
therein.
•
•
•
•
•
•
•
•
•
•
EXHIBIT B
Intentionally Omitted
00277970.12 1
EXHIBIT C -1
NEW HVAC WORK
• Furnish and install fifty (50) tons of cooling via a variable air volume (VAV) system with roof
top mechanical unit(s) compatible with building standard Trane controls
• Furnish and install (20) VAV terminal units compatible with building standard Trane controls
• Furnish and install ductwork from roof top unit to VAV terminal units
• Includes all design/build mechanical and electrical as well as roof structure improvements
• Electrical connections to new HVAC equipment.
• All mechanical and electrical engineering as required to secure required permits
• Structural engineering, as required
• Structural upgrades to existing roof structure to accommodate new HVAC roof top unit(s)
• Roof patch involving new roof top units
• Permits and permitting
• Excludes:
o Ductwork and distribution downstream of VAV terminal units, supply and return air
diffusers and grilles
o Patching and /or repair of existing ceiling system(s)
o Relocation of fire sprinkler heads or lateral and branch lines
o Relocation of existing lighting
00277970.12 1
EXHIBIT C -2
EXISTING HVAC SYSTEM
• Two (2) Mammoth roof top units with 67 tons of cooling, and 31,000 cfm per each unit. In
addition, all associated ductwork, variable air volume (VAV) terminal units, grilles and diffusers,
and controls.
• Two (2) Trane YCD 180, packaged rooftop AC units with 15 tons of cooling and 5,300 am per
each unit. In addition, all associated ductwork, grilles and diffusers, and controls.
00277970.12 1
•
•
EXHIBIT D
GUARANTY OF CONTRIBUTIONS
GUARANTY OF LESSOR'S CONTRIBUTIONS
ARTICLE I. PARTIES
, a (hereinafter
"Guarantor "), as a material inducement to and in consideration of Comcast of Tualatin Valley,
Inc., an Oregon corporation (hereinafter "Lessee ") entering into a written lease (hereinafter, the
"Lease ") with The Benenson 68t Parkway Key LLC, a limited liability
company (hereinafter "Lessor "), of approximately even date herewith, for lease of that certain
space located at 11308 SW 68 Parkway, Tigard, Oregon, and more particularly described in the
Lease, pursuant to the provisions of this Guaranty of Contributions (this "Guaranty "),
unconditionally guarantees and promises to and for the benefit of Lessee, full payment (when
due and payable) by Lessor of the Lessee's Pre - Development Costs, Lessor's Work
Contribution, the Electrical Work Contribution, the Roof Work Contribution, the Refurbishment
Contribution (but only if and to the extent Lessee timely elects to use the same for Lessee's
Initial Installation prior to August 1, 2012) and the Space Plan Contribution (if not previously
paid by Lessor) and, if elected by Lessee prior to August 1, 2012, the full payment of Lessor's
Additional Contribution, as defined in and pursuant to the terms, covenants, and conditions of
Sections 1 and 58 of the Lease (collectively, the "Guaranteed Obligations "), all as more
specifically set forth in this Guaranty.
ARTICLE II. GUARANTOR'S DUTIES
Section 2.1. Guaranty of Lessor's Payment. Guarantor hereby unconditionally
guarantees and promises to and for the benefit of Lessee, full payment by Lessor of the
Guaranteed Obligations. No other obligations of Lessor are guaranteed hereunder. In the event
that Lessor shall fail to pay the Construction Allowance or the Lessee Improvement Loan, or any
portion thereof, due pursuant to the terms of said Lease, then within five (5) business days after
Guarantor receives written notice thereof from Lessee, Guarantor shall pay to Lessee or Lessee's
designated agent any and all such amounts as may be due and owing from Lessor by reason of
Lessor's failure to perform. Guarantor's guaranty of Lessor's payment of the Lessee's Pre -
Development Costs shall cease and be of no force or effect upon the occurrence of the Delivery
Date. Guarantor's guaranty of Lessor's payment of the other Guaranteed Obligations shall (x) be
reduced by the amount of all Excess Obligations, if any, and (y) cease and be of no force or
effect with respect to all amounts of the Guaranteed Obligations for which Lessee has not
submitted requisitions meeting the Requisition Requirements (or delivery of Lessee's architect's
bill and space plan with respect to the Space Plan Contribution) by the date which is one (1) year
following the Delivery Date.
•
ARTICLE III. GUARANTOR'S WAIVERS
Section 3.1. Guarantor's Waivers
00277970.12 1 •
Guarantor hereby waives:
(a) all defenses by reason of any disability of Lessor; .
(b) until such time as all of the Guaranteed Obligations have been satisfied in
full, any and all rights Guarantor may have for subrogation against, or re imbursement from,
Lessor with respect to any sums paid hereunder;
(c) all suretyship rights and defenses, including without limitation those
arising from or related to rights of subrogation, indemnification, reimbursement, contribution,
modification of obligations, election of remedies (including if any such election may or has
destroyed Guarantor's rights of subrogation and/or reimbursement); and
•
(d) notice of acceptance of this Guaranty and diligence of collecting any sums
due under Sections 58 and 59 of the Lease or the taking of any action, or failure to take action,
with reference to any default by Lessor with respect to the Guaranteed Obligations or to any
liability under this Guaranty.
ARTICLE IV. ALTERATION, MODIFICATION, OR ASSIGNMENT
Section 4.1. Effect of Extension, Modification, or Alteration of Lease
Guarantor understands and agrees that the obligations of Guarantor under this Guaranty
shall in no way be affected by any extension, modification, or alteration of the Lease or Lessor's
obligations thereunder, and no such extension, modification, or alteration of the Lease or
Lessor's obligations thereunder shall in any way release or discharge Guarantor from any of its
obligations accruing under this Guaranty. This Guaranty shall continue until all of the
Guaranteed Obligations under the Lease have been fully and completely performed. The term
"Lease" shall include all amendments, modifications, alterations and extensions of the Lease.
Section 4.2. Assignment
Guarantor understands and agrees that no sale or other conveyance of the real estate of
which the leased premises are part, nor assignment of the Lease, nor any rights or obligations
accruing thereunder, shall in any way affect or release Guarantor's obligations under this
Guaranty, unless agreed upon by Lessee.
Section 4.3. Delay in Enforcement
Guarantor understands and agrees that any failure or delay of Lessee to enforce any of its
rights under the Lease or this Guaranty shall in no way affect Guarantor's obligations under this
Guaranty.
ARTICLE V. LESSOR'S INSOLVENCY
00277970.12 2
Section 5.1. Liability upon Lessor's Insolvency
Guarantor understands and agrees that in the event Lessor shall become insolvent or be
adjudicated bankrupt, whether by voluntary or involuntary petition, or shall a petition for
organization, arrangement, or similar relief be filed against it, or if a receiver of any part of its
property or assets is appointed by any court, Guarantor will remain obligated under this
Guaranty. Lessee has no duty to disclose to Guarantor any information it receives regarding the
financial status of Lessor, whether or not such information indicates that the risk of Guarantor
under this Guaranty has been or may be increased. Guarantor acknowledges that it is fully aware
of all of Lessor's current financial circumstances and assumes full responsibility for being and
keeping informed of Lessor's financial condition and Lessor's performance under the Lease.
Further, in the event any payment by Lessor of the Guaranteed Obligations is held to constitute a
preference, fraudulent conveyance or similar voidable payment under any law now or hereafter
in effect, and is rescinded or otherwise required to be returned by Lessee, such payment by
Lessor shall not constitute a release of Guarantor from any liability hereunder and this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such
payment or payments.
Section 5.2. Effect of Operation of Law
To the extent permitted by law, any operation of any present or future debtor's relief act
or similar act or law, or decision of any court, shall in no way abrogate or otherwise limit the
obligation of Guarantor to perform any of the terms, covenants or conditions of this Guaranty.
ARTICLE VI. MISCELLANEOUS
Section 6.1. Notices
Any and all notices required under this Guaranty shall be made in writing, and shall be
sent by United States registered or certified mail, return receipt requested, postage prepaid, or
sent by reputable courier or overnight delivery service providing evidence of receipt, to the
respective party at its address listed below, or at such other place as may be designated by said
party upon written notice from time to time hereafter.
To Guarantor, to: [ENTITY TBD]
708 Third Avenue, 28 Floor
New York, New York 10017
Attn:
With a copy to:
Goldfarb & Fleece LLP
345 Park Avenue, 33 Floor
New York, NY 10154
Attn: Partner -in- Charge to Benenson Account
00277970.12 3
To Lessee, to: [TENANT TO PROVIDE]
With a copy to:
Comcast Cable Communications, LLC
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103 -2838
Attn: General Counsel
Notices shall be effective on (a) three (3) business days after it shall have been mailed or (b)
one (1) business day after deposit with a reputable courier or overnight delivery service.
Inability to deliver due to change of address for which no notice was given or refusal to
accept delivery shall be deemed delivery hereunder.
Section 6.2. Extent of Obligations
Notwithstanding anything to the contrary in this Guaranty, it is understood and agreed
that this Guaranty shall not extend to any obligations of Lessor under the Lease other than the
Guaranteed Obligations.
Section 6.3. Assignability
This agreement may be assigned in whole or in part by Lessee at any time to any
successor to Lessee's interest in the leased premises.
Section 6.4. Successors and Assigns
The terms and provisions of this Guaranty shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto.
Section 6.5. Modification of Guaranty
This Guaranty constitutes the full and complete agreement between the parties hereto,
and it is understood and agreed that the provisions hereof may only be modified by a writing
executed by both parties hereto.
Section 6.6. Number and Gender
As used herein the singular shall include the plural, and as used herein the masculine
shall include the feminine and neuter genders.
Section 6.7. Captions /Headings
00277970.12. 4
Any captions or headings used in this Guaranty are for reference purposes only and are in
no way to be construed as part of this Guaranty.
Section 6.8. Invalidity
If any term, provision, covenant or condition of this Guaranty is held to be void, invalid,
or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in
no way be affected, impaired, or invalidated.
Section 6.9. Jurisdiction
The validity of this agreement and of any of its terms or provisions, as well as the rights
and duties of the parties hereunder, shall . be interpreted and construed pursuant to and in
accordance with the laws of the State in which the leased premises are located.
Section 6.10. Joint and Several
Should more than one party execute this instrument as Guarantor, then the obligations of
each such party shall be joint and several.
Section 6.11. Attorney's Fees
In the event it becomes necessary to enforce any of the terms and provisions of this
Guaranty, whether or not suit be instituted, the prevailing party shall be entitled to its reasonable
costs and expenses incurred with respect thereto, including, but not limited to, reasonable
attorney's fees, and such other costs and expenses as may be allowed by law.
Section 6.12. Waiver of Jury Trial LESSEE AND GUARANTOR EACH
ACKNOWLEDGES THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL
OF ITS CHOICE WITH RESPECT TO ITS RIGHT TO TRIAL BY JURY, AND EACH
PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL
SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
(AND /OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR
SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY.
Section 6.13. Guaranty of Payment
It is understood and agreed that this Guaranty is unconditional and continuing, and a
guaranty of payment and not of collection.
Section 6.14. Independent Obligations
00277970.12 5
•
The obligations of Guarantor under this Guaranty are independent of the obligations of
Lessor and Lessee may directly enforce its rights under this Guaranty without proceeding against
or joining Lessor.
Section 6.15. Final Agreement
•
This Guaranty is the final, complete, and exclusive statement of the terms of the
agreement between the parties pertaining to Guarantor's guarantee of the Guaranteed Obligations
and supersedes any and all prior or contemporaneous understandings, agreements,
representations or communications between or among the parties, either oral or written,
concerning this Guaranty.
•
Section 6.16. Interest of Past Due Obligations
All amounts not paid when due hereunder shall bear interest, at the rate stated in the
Lease for the late or defaulted payments by Lessee, from the date due until paid.
Section 6.17. Time is of the Essence
Time is of the essence for the payment and performance of all obligations under the
Guaranty.
Section 6.18. Indemnification
Subject to Section 6.11 of this Guaranty, Guarantor agrees to indemnify, defend, protect
and hold harmless Lessee for all losses, liabilities, damages, claims, actions, suits, injuries, costs,
and expenses, including court costs and attorneys' fees, incurred or paid by Lessee arising from
or related to successfully enforcing this Guaranty.
Section 6.19. No Waiver
No breach of any of the provisions of this Guaranty shall be deemed consented to or
excused, nor shall the validity of the performance of any representation, promise or undertaking
herein be deemed waived, nor shall any delay or deviation from the time or manner of any
performance be deemed consented to unless such consent, excuse or waiver shall be in writing
and signed by Lessee. Any such consent, excuse or waiver shall not constitute a consent to,
waiver of, or excuse for any other similar or dissimilar breach, delay or deviation.
Section 6.20. Construction
Guarantor has been represented by counsel in the preparation and negotiation of
this Guaranty. This Guaranty shall be construed according to the fair meaning of its language.
The rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not be employed in interpreting this Guaranty.
Section 6.21. Defined Terms
00277970.12 6
•
Capitalized Terms not defined herein shall have the respective meaning ascribed
to such terms in the Lease.
00277970.12 7
ARTICLE VII. EXECUTION
IN WITNESS WHEREOF, the undersigned have executed this Guaranty and made it
effective this day of , 2012.
Guarantor:
By
Printed Name
Title
Lessee:
COMCAST OF TUALATIN VALLEY, INC.
By
Printed Name
Title
00277970.12 8
•
EXHIBIT E
PROHIBITED USES
1. An operation primarily used as a storage warehouse operation and any
assembling, manufacturing, distilling, refining, smelting, agricultural or mining operation.
2. Any mobile . home park, trailer court, labor camp, junkyard, or stockyard;
provided, however, this prohibition shall not be applicable to the temporary use of construction
trailers during periods of construction, reconstruction or maintenance.
3. Any dumping, disposing, incineration or reduction of garbage; provided, however,
this prohibition shall not be applicable to garbage compactors located near the rear of any
Building.
4. Any central laundry or dry cleaning plant.
5. Any automobile, truck, trailer or recreational vehicle repair, sales, leasing, display
or body shop repair operation.
6. Any mortuary or funeral home.
7. Any so called "adult bookstore" or other establishment engaged in the business of
selling, exhibiting or delivering pornographic or obscene materials as a substantial part of its
business.
8. Any establishment selling or exhibiting illegal drug - related paraphernalia or
which exhibits either live or by other means to any degree, nude or partially nude dancers or wait
staff.
9. Any gambling facility or operation, including but not limited to: off -track or
sports betting parlor; table games such as blackjack or poker; slot machines, video
poker/blackjack/keno machines or similar devices; or bingo hall. Notwithstanding the foregoing,
this prohibition shall not be applicable to government sponsored gambling activities or charitable
gambling activities, so long as such activities are incidental to the business operation being
conducted by the occupant.
10. Any hotel, motel, short or long term residential use, including but not limited to:
single family dwellings, townhouses, condominiums, other multi - family units, and other forms
of living quarters, sleeping apartments or lodging rooms.
11. Amusement park.
12. Carnival. •
13. Any so called illicit "massage parlors" or similar establishments
00277970.12 •
Agnes Kowacz
From: Paul Riso <Paul.Riso @lewisbuilds.com>
Sent: Thursday, February 07, 2013 1:55 PM
To: Agnes Kowacz
Cc: Scott Hohnstein; Kelly Nelson
Subject: RE: Comcast Cable- MMD
Hi Agnes,
I count 328 existing and 316 will be remaining.
Please let us know if you need any additional information.
Thanks,
•
Paul Riso
Project Executive — Special Projects Division
LEASE CRUTCHER LEWIS
550 SW 12` Avenue, Portland, OR 97205
D: 503.937.9142 T: 503.223.0500 l F: 503.223.2874
www.lewisbuilds.com
From: Agnes Kowacz [mailto:AgnesKCatigard- or.gov]
Sent: Thursday, February 07, 2013 9:23 AM
To: Paul Riso
Subject: Comcast Cable- MMD
Hi Paul -
Can you provide the number of parking spaces that currently exist on the site (the site plan just shows 'parking to
remain') and then the number of parking stalls after the modification? Thanks!
Agnes Kowacz I Associate Planner
City of Tigard
13125 SW Hall Blvd.
Tigard, OR 97223
503.718.2427
agnesk @tigard- or.gov
DISCLAIMER: E -mails sent or received by City of Tigard employees are subject to public record laws. If requested, e-mail
may be disclosed to another party unless exempt from disclosure under Oregon Public Records Law. E -mails are retained
by the City of Tigard in compliance with the Oregon Administrative Rules "City General Records Retention Schedule."
1
' t
www.tvfr.com
Tualatin Valley
Fire & Rescue
February 12, 2013
Comcast Cable/ Crutcher Lewis
SW 12 Ave
Portland, OR
Re: Comcast Minor Modification
Thank you for the opportunity to review the proposed site plan surrounding the above named development
project. Tualatin Valley Fire & Rescue endorses this proposal predicated on the following criteria and conditions
of approval:
1) AERIAL FIRE APPARATUS ACCESS: Buildings or portions of buildings or facilities exceeding 30 feet in height
above the lowest level of fire department vehicle access shall be provided with approved fire apparatus access
roads capable of accommodating fire department aerial apparatus. Overhead utility and power lines shall not be
located within the aerial fire apparatus access roadway. Fire apparatus access roads shall have a minimum
unobstructed width of 26 feet in the immediate vicinity of any building or portion of building more than 30 feet in
height. At least one of the required access routes meeting this condition shall be located within a minimum of 15
feet and a maximum of 30 feet from the building, and shall be positioned parallel to one entire side of the building.
(OFC D105)
2) FIRE APPARATUS ACCESS ROADS WITH FIRE HYDRANTS: Where a fire hydrant is located on a fire
apparatus access road, the minimum road width shall be 26 feet. (OFC D103.1)
3) NO PARKING SIGNS: Where fire apparatus roadways are not of sufficient width to accommodate parked
vehicles and 20 feet of unobstructed driving surface, "No Parking" signs shall be installed on one or both
sides of the roadway and in turnarounds as needed. Roads 26 feet wide or less shall be posted on both
sides as a fire lane. Roads more than 26 feet wide to 32 feet wide shall be posted on one side as a fire
lane. Signs shall read NO PARKING - FIRE LANE" and shall be installed with a clear space above grade
level of 7 feet. Signs shall be 12 inches wide by 18 inches high and shall have red letters on a white
reflective background. (OFC D103.6)
4) GATES: Gates securing fire apparatus roads shall comply with all of the following: Minimum unobstructed
width shall be 16 feet, or two 10 foot sections with a center post or island. Gates serving one- or two - family
dwellings shall be a minimum of 12 feet in width. Gates shall be set back at minimum of 30 feet from the
intersecting roadway. Gates shall be of the swinging or sliding type. Manual operation shall be capable by
one person. Electric automatic gates shall be equipped with a means for operation by fire department
personnel. Locking devices shall be approved. Electric automatic gates shall comply with ASTM 220 -5 and
UL 325. (OFC D103.6) Removable bollards are not an approved alternate to a swinging gate.
5) REFLECTIVE HYDRANT MARKERS: Fire hydrant locations shall be identified by the installation of
reflective markers. The markers shall be blue. They shall be located adjacent and to the side of the
centerline of the access road way that the fire hydrant is located on. In case that there is no center line,
then assume a centerline, and place the reflectors accordingly. (OFC 510.1)
6) PHYSICAL PROTECTION: Where fire hydrants are subject to impact by a motor vehicle, guard posts,
bollards or other approved means of protection shall be provided. (OFC 507.5.6)
North Operating Center Command & Business Operations Center South Operating Center Training Center
20665 SW Blanton Street and Central Operating Center 7401 SW Washo Court 12400 SW Tonquin Road
Aloha, Oregon 97007 -1042 11945 SW 70 Avenue Tualatin, Oregon 97062 -8350 Sherwood, Oregon 97140 -9734
503- 259 -1400 Tigard, Oregon 97223 -9196 503 - 259 -1500 503 - 259 -1600
503- 649 -8577
TV IF Aft www.tvfr.com
Tualatin Valley
Fire & Rescue
7) -CLEAR SPACE AROUND FIRE HYDRANTS: A 3 foot clear space shall be provided around the
circumference of fire hydrants. (OFC 507.5.5)
8) KNOX BOX: A Knox Box for building access is required for this building. Please contact the Fire Marshal's
Office for an order form and instructions regarding installation and placement. (OFC 506.1)
9) PREMISES IDENTIFICATION: Buildings shall have approved address numbers, building numbers or
approved building identification placed in a position that is plainly legible and visible from the street or road
fronting the property. These numbers shall contrast with their background. Address numbers shall be
Arabic numerals or alphabet numbers. Numbers shall be a minimum of 4 inches high with a' /z inch stroke.
(OFC 505.1)
10) FIRE DEPARTMENT ACCESS TO EQUIPMENT: Fire protection equipment shall be identified in an
approved manner. Rooms containing controls for HVAC, fire sprinklers risers and valves or other fire
detection, suppression or control features shall be identified with approved signs. (OFC 509.1)
If you have questions or need further clarification, please feel free to contact me at 503 - 259 -1504.
Sincerely,
ra& fars
John Wolff
Deputy Fire Marshal
Copy:
City of Tigard Attn: Agnes Kowacz
TVFR File
Page 1 2
Land Use Application
i k"
e COMPLETENESS REVIEW REQUEST
T ICA
TO: Greg Berry RETURN TO: Agnes Kowacz
John Wolff, TVFR
DATE SENT: February 5, 2013 REPLY REQUESTED BY: February 12, 2013
PROJECT NAME: Comcast Cable CASE NUMBER: MMD2013 -00008
PROJECT ADDRESS: 11308 SW 68 Pkwy
PROJECT DESCRIPTION: Minor Modification to existing development. Modification
includes alterations to the existing building, parking lots, landscaping, sidewalks and storm water
drainage system.
Project Planner Notes:
Complete? 'Yes ❑ No
Comments below or ❑ See Attached
a� ?J3 _i c_ S
to 0 u-Wr11.2 0, 3 4t4 7?'
(itt.,5,4 5crE R-g-44)001))
is \curpin \ masters \completeness review request.docx