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<PAGE>
Exhibit 10.32
FIRST AMENDMENT
TO
MULTI-TENANT INDUSTRIAL TRIPLE NET LEASE
THIS FIRST AMENDMENT (the "First Amendment") is made and entered
into this
30 day of June, 2006, by and between CATELLUS OPERATING LIMITED
PARTNERSHIP, a
Delaware Limited Partnership, successor in interest to Catellus
Development
Corporation ("Landlord"), and SYNETICS SOLUTIONS, INC., an Oregon
corporation
("Tenant").
RECITALS
A. Landlord and Tenant entered into a Multi-Tenant Industrial
Triple Net
Lease dated as of December 15, 2000 (the "Lease"), pursuant to
which Landlord
leased to Tenant certain premises located at Southshore Corporate
Park -
Building C, 4293 NE 185th Avenue; Gresham, Oregon 97230, as more
particularly
described in the Lease.
B. Landlord and Tenant desire to amend the Lease and provide for a
Security
Deposit in the amount of $23,564.42 and delete from the Lease,
Section 3.3
Letter of Credit, to become effective on June 30, 2006; on the
terms and
conditions below
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
contained herein, the parties, intending to be legally bound, agree
as follows:
1. Amendment to Section 3.3. Subject to the terms and conditions
stated,
Section 3.3 Letter of Credit of the Lease is deleted and replaced
with the
following:
"3.3 Security Deposit. Upon the execution of this First
Amendment,
Tenant shall pay to Landlord the Security Deposit, in the amount
of
$23,564.42. The Security Deposit shall secure the full and
faithful
performance of each provision of the Lease to be performed by
Tenant.
Landlord shall not be required to pay interest on the Security
Deposit or
to keep the Security Deposit separate from Landlord's own funds. If
Tenant
fails to perform fully and timely on all or any of Tenant's
covenants and
obligations hereunder, Landlord may, but without obligation, apply
all or
any portion of the Security Deposit toward fulfillment of
Tenant's
unperformed covenants and/or obligations. If Landlord does so apply
any
portion of the Security Deposit, Tenant shall immediately pay
Landlord
sufficient cash to restore the Security Deposit to the amount of
the then
current Base Rent per month. After Tenant vacates the Premises,
upon the
expiration or sooner termination of this Lease, if Tenant is not
then in
default, Landlord shall return to Tenant any unapplied balance of
the
Security Deposit. If a change in control of Tenant occurs during
this Lease
and following such change the financial condition of Tenant is,
in
Landlord's reasonable judgment, reduced, Tenant shall deposit
such
additional monies with Landlord as Landlord and Tenant shall agree
in good
faith to be sufficient to cause the Security Deposit to be at a
commercially reasonable level based on said change in financial
condition."
2. Effect of Lease. Except as expressly amended herein, all other
terms,
conditions and covenants of the Lease shall remain binding and in
full force
and effect.
IN WITNESS WHEREOF, the parties have caused this First Amendment to
be
executed on the respective dates set forth below, effective of the
day and year
first above written.
LANDLORD: TENANT:
CATTELLUS OPERATING LIMITED SYNETICS SOLUTIONS, INC., an Oregon
PARTNERSHIP, corporation
A DELAWARE LIMITED PARTNERSHIP
BY: PALMTREE ACQUISITION CORPORATION, BY: /s/ Akira Hijikuro
A DELAWARE CORPORATION, ITS GENERAL
------------------------------------
PARTNER SUCCESSOR IN INTEREST TO NAME: Akira Hijikuro
CATELLUS DEVELOPMENT CORPORATION, TITLE: TreasureR
DATE:
--------------------
<PAGE>
BY: /s/ W. Scott Lamson
---------------------------------
NAME: W. SCOTT LAMSON
TITLE: SENIOR VICE PRESIDENT
DATE:
-------------------
Page 2 - FIRST AMENDMENT TO MULTI-TENANT INDUSTRIAL TRIPLE NET
LEASE
<PAGE>
LEASE GUARANTY
The undersigned (collectively the "Guarantor") hereby absolutely
and
unconditionally, jointly and severally, guarantees the prompt,
complete, and
full and punctual payment, observance, and performance of all the
terms,
covenants, and conditions provided to be paid, kept, and performed
by the tenant
under that certain Lease Agreement (such lease, as amended, being
herein
referred to as the "Lease"), dated July 20, 2000, between Catellus
Operating
Limited Partnership, a Delaware Limited Partnership, as Landlord
("Landlord"),
and Synetics Solutions Inc., an Oregon Corporation, as Tenant
("Tenant"),
covering the premises located at 18870 NE Riverside Parkway,
Gresham, OR 97230.
United States of America and all renewals, amendments, expansions,
and
modifications of the Lease. This Guaranty shall include any
liability of Tenant
which shall accrue under the Lease for any period preceding as well
as any
period following the term of the Lease.
The obligation of the Guarantor is primary and independent of
Tenant's
obligations under the Lease and may be enforced directly against
the Guarantor
independently of and without proceeding against the Tenant or
exhausting or
pursuing any remedy against Tenant or any other person or entity.
Guarantor
waives any requirement that Landlord mitigate damages under the
Lease.
This instrument may not be changed, modified, discharged, or
terminated
orally or in any manner other than by an agreement in writing
signed by
Guarantor and the Landlord.
The obligations of Guarantor under this Guaranty shall not be
released or
otherwise affected by reason of any sublease, assignment, or other
transfer of
the Tenant's interest under the Lease, whether or not Landlord
consents to such
sublease, assignment, or other transfer.
Any act of Landlord, or the successors or assigns of Landlord,
consisting
of a waiver of any of the terms or conditions of said Lease, or the
giving of
any consent to any manner or thing relating to said Lease, or the
granting of
any indulgences or extensions of time to Tenant, may be done
without notice to
Guarantor and without releasing the obligations of Guarantor
hereunder.
The obligations of Guarantor hereunder shall not be released by
Landlord's
receipt, application, or release of security given for the
performance and
observance of covenants and conditions in said Lease contained on
Tenant's part
to be performed or observed nor by any modification of such Lease;
but in case
of any such modification, the liability of Guarantor shall be
deemed modified in
accordance with the terms of any such modification of the
Lease.
Guarantor waives any defense or right arising by reason of any
disability
or lack of authority or power of Tenant and shall remain liable
hereunder if
Tenant or any other party shall not be liable under the Lease for
such reason.
Until all the covenants and conditions in said Lease on Tenant's
part to be
performed and observed are fully performed and observed, Guarantor
(i) shall
have no right of subrogation against Tenant by reason of any
payments or acts of
performance by the Guarantor, in compliance with the obligations of
the
Guarantor hereunder; (ii) waives any right to enforce any remedy
which Guarantor
now or hereafter shall have against Tenant by reason of any one or
more payments
or acts of performance in compliance with the obligations of
Guarantor
hereunder; and (iii) subordinates any liability or indebtedness of
Tenant now or
hereafter held by Guarantor to the obligations of Tenant to the
Landlord under
said Lease.
The liability of Guarantor hereunder shall not be released or
otherwise
affected by (i) the release or discharge of Tenant in any
insolvency,
bankruptcy, reorganization, receivership, or other debtor relief
proceeding
involving Tenant (collectively "proceeding for relief); (ii) the
impairment,
limitation, or modification of the liability of Tenant or the
estate of the
Tenant in any proceeding for relief, or of any remedy for the
enforcement of
Tenant's liability under the Lease, resulting from the operation of
any law
relating to bankruptcy, insolvency, or similar proceeding or other
law or from
the decision in any court; (iii) the rejection or disaffirmance of
the Lease in
any proceeding for relief; or (iv) the cessation from any cause
whatsoever of
the liability of Tenant.
This Guaranty shall continue to be effective or be reinstated, as
the case
may be, if at any time any payment by Tenant to Landlord under the
Lease is
rescinded or must otherwise be returned by Landlord upon the
insolvency,
bankruptcy, reorganization, receivership, or other debtor relief
proceeding
involving Tenant, all as though such payment had not been made.
This Guaranty is executed and delivered for the benefit of Landlord
and its
successors and assigns, and is and shall be binding upon Guarantor
and its
successors and assigns, but Guarantor may not assign its
obligations hereunder
without the prior written consent of Landlord, which may be
withheld in
Landlord's sole discretion.
GUARANTOR AND LANDLORD WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE
IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN
LANDLORD AND GUARANTOR ARISING OUT OF THIS GUARANTY OR ANY OTHER
DOCUMENT OR
INSTRUMENT EXECUTED IN CONNECTION HEREWITH OR ANY TRANSACTION
RELATED TO THIS
GUARANTY.
Guarantor agrees to pay all costs and expenses, including
reasonable
attorneys' fees, incurred by Landlord in enforcing the terms of
this Guaranty.
This Guaranty shall be governed by and construed in accordance with
the
internal laws of the State which governs the Lease excluding any
principles of
conflicts of laws. For the purpose solely of litigating any dispute
under this
Guaranty, the undersigned submits to the jurisdiction of the courts
of said
state.
<PAGE>
if the Guarantor is more than one person or entity, the liability
of each such
Guarantor shall be joint and several.
WITNESS THE EXECUTION hereof this _____ day of June, 2006.
GUARANTOR:
Brooks Automation, Inc.
By: /s/ Edward C. Grady
------------------------------------
Name: Edward C. Grady
Title: President & CEO
<PAGE>
FIRST AMENDMENT TO
MULTI-TENANT INDUSTRIAL TRIPLE NET LEASE
AND COMMENCEMENT DATE MEMORANDUM
THIS FIRST AMENDMENT TO MULTI-TENANT INDUSTRIAL TRIPLE NET LEASE
AND
COMMENCEMENT DATE MEMORANDUM ("Amendment") is made and entered into
as of the
19th day of December, 2000, by and between CATELLUS DEVELOPMENT
CORPORATION, a
Delaware corporation ("Landlord"), and SYNETICS SOLUTIONS, INC., an
Oregon
corporation ("Tenant").
RECITALS:
A. Landlord and Tenant are parties to that certain Multi-Tenant
Industrial
Triple Net Lease dated as of July 20, 2000 (the "Lease"), pursuant
to which
Landlord leased to Tenant certain premises located at Southshore
Corporate Park
- Building A, 18870 NE Riverside Parkway, Gresham, Oregon, as more
particularly
described in the Lease.
B. Landlord and Tenant desire (a) to acknowledge, among other
things, the
Commencement Date (as such term is defined in the Lease) and the
rentable square
footage of the Premises and (b) to amend the Lease on the terms and
conditions
set forth below.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
herein contained and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby amend
the Lease and Landlord and Tenant agree as follows:
1. INCORPORATION; DEFINED TERMS. The Lease, including all exhibits
and
schedules attached thereto, is incorporated into this Amendment by
this
reference. All capitalized terms used and not otherwise defined in
this
Amendment, but defined in the Lease, shall have the meaning set
forth in the
Lease.
2. CONFIRMATION OF COMMENCEMENT DATE AND BASE RENT. Notwithstanding
any
provision to the contrary contained in the Lease, Tenant's
obligation to pay
Shell Base Rent (as set forth in the Basic Lease Information) under
the Lease,
but subject to the terms of this Paragraph 2, commenced on December
12, 2000.
Concurrently with the execution of this Amendment, Tenant shall pay
to Landlord
the amount of Twenty Two Thousand Two Hundred Twenty Nine and
38/100 Dollars
($22,229.38) as Shell Base Rent for the month of December 2000.
Tenant shall be
under no obligation to pay the First Allowance Rent or the Second
Allowance Rent
for December 2000. In no event shall Landlord's acceptance of Shell
Base Rent
for the month of December accelerate the Commencement Date which
shall be
<PAGE>
conclusively deemed to be January 1, 2001, and, notwithstanding any
provision to
the contrary contained in the Lease, the Term of the Lease shall
commence on
such date. In accordance with the foregoing, rather than enter into
a separate
Commencement Date Memorandum ("Memorandum"), as contemplated in
Section 2 of the
Lease, the parties desire to incorporate the provisions of the
Memorandum herein
as follows:
(a) The Commencement Date, as defined in the Lease, is January
1,
2001.
(b) The Premises contains 109,906 rentable square feet.
(c) Base Rent is payable on the Commencement Date (i.e.,
January
1, 2001) in accordance with the following rent schedule:
<TABLE>
<CAPTION>
Months Shell Base Rent First Allowance Rent Second Allowance Rent*
Total Base Rent
------ --------------- -------------------- ----------------------
---------------
<S> <C> <C> <C> <C>
1-24 $36,269.00 $5,343.00 $11,535.00 $53,147.00
25-48 $38,487.00 $5,343.00 $11,535.00 $55,365.00
49-72 $40,821.00 $5,343.00 $11,535.00 $57,699.00
73-96 $43,307.00 $5,343.00 $11,535.00 $60,185.00
97 -120 $45,944.00 $5,343.00 $11,535.00 $62,822.00
121-144+ $48,742.00 $ 0 $ 0 $48,742.00
145-168+ $51,710.00 $ 0 $ 0 $51,710.00
169-180+ $54,859.00 $ 0 $ 0 $54,859.00
</TABLE>
* Subject to prepayment pursuant to Section 9(d) of the Work
Letter
+ Subject to the provisions of the Option to Extend set forth in
Section 19
of the Addendum to Lease
3. RIGHT OF FIRST OFFER ON ADJACENT SPACE. A new Section 20 is
hereby added
to the Addendum to Lease as follows:
"20. Right of First Offer
20.1 Provided that (i) no Event of Default has occurred and is
continuing under the Lease, (ii) Tenant is in occupancy of at
least
ninety percent (90%) of the Premises, (iii) Landlord has not
given
more than two (2) notices of default in any twelve (12) month
period
for nonpayment of monetary obligations, if at any time prior to
the
last twelve (12) months of the Term Landlord intends to offer
the
approximately 55,094 square feet portion of the Building not
occupied
by Tenant pursuant to the Lease (the "Additional Premises") for
lease
to third parties or to accept an offer of a third party to lease
the
Additional Premises, Landlord shall first give written notice
to
Tenant of the rental rate and other material terms upon which
Landlord
is willing to lease the Additional Premises ("Landlord's Lease
Notice"). Landlord's Lease Notice shall constitute an offer to
lease
the Additional Premises to Tenant at the rental rate and upon
the
terms and conditions contained in Landlord's Lease Notice and
shall
state the anticipated date of availability of the Additional
Premises.
Tenant shall have five (5)
-2-
<PAGE>
business days after receipt of Landlord's Lease Notice to accept
such
offer. Tenant shall accept such offer, if at all, only by delivery
to
Landlord of Tenant's irrevocable written commitment to lease
the
Additional Premises at the rental rate and upon the terms and
conditions contained in Landlord's Lease Notice (the "Expansion
Commitment"). Notwithstanding the foregoing, such first offer right
of
Tenant shall commence only following the expiration or earlier
termination of the initial lease of the Additional Premises,
including
any renewal, extension or expansion rights set forth in such
leases,
regardless of whether such renewal, extension or expansion rights
are
executed strictly in accordance with their terms, or pursuant to
a
lease amendment or a new lease (collectively, the "Superior
Right
Holders") with respect to such Additional Premises. Tenant's right
of
first offer shall be on the terms and conditions set forth in
this
Section 20.
20.2 Provided that no Superior Right Holder wishes to lease the
Additional Premises, if Tenant delivers to Landlord the
Expansion
Commitment within such five (5) business day period, all (but
not
part) of the Additional Premises shall be leased to Tenant
commencing
on the date Landlord delivers possession of the Additional Premises
to
Tenant and continuing for a period of time coterminous with the
remaining Term of the Lease, including any options to extend the
Term.
Tenant shall lease the Additional Premises upon the same terms,
conditions and covenants as are contained in the Lease except that
(i)
the Base Rent for the Additional Premises shall be at the rate
set
forth in Landlord's Lease Notice, and (ii) any terms and
conditions
set forth in Landlord's Lease Notice that are inconsistent with
the
terms and conditions of the Lease shall control.
20.3 Except as otherwise set forth in Landlord's Lease Notice,
possession of the Additional Premises shall be delivered to Tenant
on
an "as-is" basis and the construction of improvements in the
Additional Premises shall comply with the terms of Section 10
and
Exhibit G of this Lease. Landlord shall prepare and Landlord
and
Tenant shall execute and deliver a written agreement modifying
and
supplementing the Lease and specifying that the Additional
Premises
are part of the Premises and, except as otherwise specified in
Landlord's Lease Notice, subject to all of the terms and conditions
of
the Lease.
20.4 Time is of the essence with respect to the exercise by
Tenant of its rights granted hereunder. In the event Tenant fails
to
deliver to Landlord Tenant's Expansion Commitment within the five
(5)
business day period prescribed above, all rights of Tenant to
lease
the Additional Premises shall terminate and Landlord shall have
no
further obligation to notify Tenant of any proposed leasing of
the
Additional Premises, and Landlord shall thereafter have the
unconditional right to lease the Additional Premises to third
parties
or to accept offers from third parties to lease the Additional
Premises without further obligation to Tenant. The rights granted
to
Tenant under this Section shall not apply to any sales or
similar
transfers of the Additional Premises. Notwithstanding anything to
the
contrary contained herein, Tenant must elect to exercise its right
of
first offer, if at all, with
-3-
<PAGE>
respect to all of the space offered by Landlord to Tenant at
any
particular time, and Tenant may not elect to lease only a
portion
thereof.
20.5 The rights granted to Tenant under this Section 20 are
personal to Tenant, may not be exercised by or assigned to any
person
or entity other than Tenant, and shall terminate and be of no
further force or effect upon any assignment of this Lease or
subletting of the Premises unless specifically agreed and consented
to
in writing by Landlord in connection with any such sublease or
assignment."
4. PAYMENT OF ABOVE-STANDARD TENANT IMPROVEMENT COSTS. Pursuant to
Section
5(b) of the Work Letter, Landlord and Tenant have previously
approved the Work
Cost Estimate dated December 18, 2000, attached hereto as Exhibit A
(the "Work
Cost Statement"). The Work Cost Statement provides that the total
costs
associated with the completion of the Tenant Improvements are to
be
approximately Six Million Six Hundred Eighty Thousand Nine Hundred
Twenty Seven
Dollars ($6,680,927.00) (the "Total TI Costs"). In connection with
the payment
of the Total TI Costs, Landlord and Tenant hereby acknowledge that
(i) the
Allowance of One Million Two Hundred Thousand Dollars
($1,200,000.00) has been
applied toward the Total TI Costs, and (ii) Tenant has previously
paid to
Landlord the Tenant Contribution pursuant to Section 9(a) of the
Work Letter in
the amount of Five Million Dollars ($5,000,000.00) which has also
been applied
toward the Total TI Costs. As of the date of this Amendment, the
unpaid balance
of the Total TI Costs set forth in the approved Work Cost Statement
is Four
Hundred Eighty Thousand Nine Hundred Twenty Seven Dollars
($480,927.00).
Landlord and Tenant hereby agree that, notwithstanding any
provision to the
contrary contained in the Lease (including, without limitation,
Section 9(b) of
the Work Letter), Tenant shall pay to Landlord the balance of the
Total TI Costs
(which the parties estimate to be approximately $480,927.00) in
accordance
with the following schedule:
(a) On or before January 15, 2001, Tenant shall pay to Landlord
in Immediately Available Funds the amount of Four Hundred Twenty
Thousand
Nine Hundred Twenty Seven Dollars ($420,927.00).
(b) On or about February 15, 2001, Tenant shall pay to Landlord
in Immediately Available Funds the balance of the Total TI Costs,
which the
parties currently estimate to be approximately Sixty Thousand
Dollars
($60,000.00), all in accordance with the terms and conditions set
forth in
the Lease; provided, however, any cost savings or cost increases
shall be
reconciled in connection with this final installment of the Total
TI Costs.
If an any time Tenant does not timely make any installment of the
outstanding
Total TI Costs to Landlord in accordance with the foregoing, such
failure shall
constitute a Tenant Delay and Landlord may, but shall not be
obligated to,
instruct the Contractor to stop all Work until such time as Tenant
has fulfilled
its obligations hereunder to make payment(s) to Landlord. Tenant's
failure to
pay any installment of the Total TI Costs in accordance with
schedule set forth
above shall constitute an Event of Default under the Lease.
-4-
<PAGE>
5. MISCELLANEOUS.
(a) Effect of Amendments. Except to the extent the Lease is
modified
by this Amendment, the remaining terms and provisions of the Lease
shall remain
unmodified and in full force and effect. In the event of conflict
between the
terms of the Lease and the terms of this Amendment, the terms of
this Amendment
shall prevail.
(b) Entire Agreement. This Amendment embodies the entire
understanding
between Landlord and Tenant with respect to its subject matter and
can be
changed only by an instrument in writing signed by Landlord and
Tenant.
(c) Counterparts. This Amendment may be executed in counterparts,
each
of which shall be deemed an original, but all of which, together,
shall
constitute one in the same Amendment.
(d) Corporate and Partnership Authority. If Tenant is a corporation
or
partnership, or is comprised of either or both of them, each
individual
executing this Amendment for the corporation or partnership
represents that he
or she is duly authorized to execute and deliver this Amendment for
the
corporation or partnership and that this Amendment is binding upon
the
corporation or partnership in accordance with its terms.
(e) Attorneys' Fees. The provisions of the Lease respecting payment
of
attorneys' fees shall also apply to this Amendment.
"LANDLORD" "TENANT"
CATELLUS DEVELOPMENT SYNETICS SOLUTIONS, INC.,
CORPORATION, a Delaware corporation an Oregon corporation
By: Catellus Commercial Group, LLC, By: /s/ Greg Marvell
a Delaware limited liability
------------------------------------
company Name: GREG MARVELL
Its: Duly Authorized Agent Its: PRESIDENT
By: By: /s/ Koki Nakamura
---------------------------------
------------------------------------
Name: Ted Antenucci Name: KOKI NAKAMURA
Its: Executive Vice President Its: Chairman & CEO
-5-
<PAGE>
SYNETICS
WORK COST ESTIMATE FOR LEASED PREMISES
LOCATED AT 18870 NE RIVERSIDE PARKWAY, GRESHAM, OR
<TABLE>
<CAPTION>
6/14/00 12/18/00
------------- -------------
<S> <C> <C>
ARCHITECTURAL/ENGINEERING GROUP MACKENZIE/INTERFACE ENG.
Architectural/Interiors $ 87,000.00 $ 87,000.00
Structural $ 27,000.00 $ 27,000.00
Mechanical/Electrical $ 132,000.00 $ 132,000.00
Reimbursable Expenses(prints, copying, faxing, mileage) $ 16,500.00
$ 16,500.00
Add. Design/Project mgmt. Fees(attached letter of 07/18/00) $
24,220.00 $ 24,220.00
Interior design and finish services $ 9,100.00
Delete powder coat and metal fab. Misc. revisions $ 11,700.00
SUBTOTAL $ 286,720.00 $ 307,520.00
PRELIM. PERMIT FEES(ACTUAL FEES MAY VARY)
Building $ 20,939.00 $ 20,939.00
Mechanical $ 6,176.00 $ 6,176.00
Plumbing $ 1,815.00 $ 1,930.00
Electrical $ 6,066.00 $ 5,427.00
Fire Alarm TBD TBD
Low Voltage $ 43.00 $ 475.00
Fire Sprinklers $ 532.00 $ 533.00
Traffic Impact Fee- add. 2nd floor $ 19,373.00 $ 19,373.00
SUBTOTAL $ 54,944.00 $ 54,853.00
CDC ADMINISTRATIVE AND COORDINATION FEE
5% of design, permit and construct Tenant Improvement Work $
286,817.00 $ 316,567.95
CONSTRUCTION COST FROM MCCORMACK PACIFIC $5,187,177.00
$5,217,821.00
Allowance for Powder Coat, Metal Fab and Mech Systems $ 200,000.00
N.A.
Change order No. 1 Approved 8/24/00 $ 148,686.00
Change order No. 2 Approved 9/30/00 $ 344,934.00
Change order No. 3 Approved 10/26/00 $ 188,222.00
Change order No. 4 Approved 11/13/00 $ 20,643.00
Change order No. 5 Approved 11/28/00 $ (24,505.00)
Contingency $ 259,358.00 $ 60,000.00
Testing and Inspections $ 7,500.00 $ 13,185.00
Subtotal $5,654,035.00 $5,968,986.00
POTENTIAL ADDITIONAL COST
Front Entry Allowance (formerly carried at $100,000) By
Synetics
Misc. revisions still being estimated (Allowance) $ 33,000.00
Subtotal $ 33,000.00
Est. Total Work Cost: Design, permits, Const., CDC. Poten. Costs
$6,282,516.00 $6,680,926.95
Synetics'$5MM prog. pay received and Catellus $1.2MM contribution
($6,200,000)
Amount due per terms of lease $ 480,926.95
-------------
Partial progress payment for project work completed $ 420,927
-------------
Synetics to pay any remaining balance upon final const. accounting
Approx. $ 60,000.00
-------------
Final costs should be done in early Feb.2001
</TABLE>
EXHIBIT A
<PAGE>
EXHIBIT I
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Beneficiary
Metropolitan Life Insurance Company
c/o Preston Gates and Ellis, LLP
One Maritime Plaza, Suite 2400
San Francisco, California 94111
Attn: Susan Reid, Esq. )
Space above for Recorder's Use
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
RESULTS
IN YOUR LEASEHOLD ESTATE BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE
LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
This Subordination, Nondisturbance and Attornment Agreement
("Agreement")
is entered into as of the ________ day of March, 2001 by and among
SYNETICS
SOLUTIONS INC., an Oregon corporation ("Tenant"), Catellus
Development
Corporation, a Delaware corporation ("Borrower") and Metropolitan
Life Insurance
Company (Beneficiary).
FACTUAL BACKGROUND
A. Borrower owns certain real property in the County of Multnomah,
State of
Oregon, more particularly described in the attached Schedule 1 term
"Property"
herein means that real property together with all improvements
(the
"Improvements") located on it.
B. Beneficiary has made or agreed to make a loan to Borrower in
the
principal amount of Two Hundred Million and no/100 Dollars
($200,000,000.00)
(the "Loan") as provided in a loan application (the "Loan
Application"). The
Loan is or will be evidenced by a promissory note (the "Note")
which is or will
be secured by a deed of trust encumbering the Property (the "Deed
of Trust")
with an assignment of rents. The Note, the Deed of Trust, this
Agreement and all
other documents and instruments identified in the Deed of Trust as
"Loan
Documents" shall be collectively referred to herein as the "Loan
Documents".
C. Tenant and Borrower (as landlord) entered into a lease dated
December
15, 2000 (the "Lease") under which Borrower leased to Tenant a
portion of the
Improvements located within the Property and more particularly
described in the
Lease (the "Premises").
D. It is a requirement of the Loan to Borrower that Tenant agree,
among
other things, to subordinate Tenant's rights under the Lease to the
lien of the
Loan Documents and to attorn to Beneficiary on the terms and
conditions of this
Agreement. Tenant is willing to agree to such subordination and
attornment and
other conditions, provided that Beneficiary agrees to a
nondisturbance
provision, all as set forth more fully below.
EXHIBIT I
-1-
<PAGE>
AGREEMENT:
Therefore, the parties agree as follows:
1. Subordination. The Loan Documents and all supplements,
amendments,
modifications, renewals, replacements and extensions of and to them
shall
unconditionally be and remain at all times a lieu on the Property
prior and
superior to the Lease, to the leasehold estate created by it, and
to all rights
and privileges of Tenant under it. The Lease and leasehold estate,
together with
all rights and privileges of Tenant under that Lease, are hereby
unconditionally
made subordinate to the lien of the Loan Documents in favor of
Beneficiary.
Tenant consents to Borrower and Beneficiary entering into the Deed
of Trust and
the other Loan Documents. Tenant further declares, agrees and
acknowledges that
in making disbursements under the Loan Documents Beneficiary has no
obligation
or duty to, nor has Beneficiary represented that it will, see to
the application
of such proceeds by the person or persons to whom they are
disbursed by
Beneficiary, and any application or use of such proceeds for
purposes other than
those provided for in the Loan Documents shall not defeat the
subordination made
in this Agreement, in whole or in part.
2. Definitions of "Transfer of the Property" and "Purchaser". As
used
herein, the term "Transfer of the Property" means any transfer of
Borrower's
interest in the Property by foreclosure, trustee's sale or other
action or
proceeding for the enforcement of the Deed of Trust or by deed in
lieu thereof.
The term "Purchaser", as used herein, means any transferee,
including
Beneficiary, of the interest of Borrower as a result of any such
Transfer of the
Property and also includes any and all successors and assigns,
including
Beneficiary, of such transferee.
3. Nondisturbance. The enforcement of the Deed of Trust shall not
terminate
the Lease or disturb Tenant in the possession and use of the
Premises unless at
the time of foreclosure Tenant is in significant default under the
Lease or this
Agreement beyond any applicable grace or cure periods, and
Beneficiary or
Purchaser so notifies Tenant in writing by the later of (i) 120
days prior to or
after the Transfer of the Property, or (ii) if Beneficiary and
Purchaser did not
have notice of the pre-foreclosure default, within 120 days of
notice of the
default that the Lease will be terminated by foreclosure because of
such
default. The nondisturbance herein granted is subject to Section 5
below. To the
extent that the Lease is extinguished by law as a result of the
foreclosure, a
new lease shall automatically go into effect upon the same
provisions as
contained in the Lease, as modified by this Agreement, for the
unexpired term of
the Lease. This nondisturbance applies to any option to extend or
renew the
Lease term which is set forth in the Lease as of the date of this
Agreement.
4. Attornment. Subject to Section 3 above, if any Transfer of the
Property
should occur, Tenant shall and hereby does attorn to Purchaser,
including
Beneficiary if it should be the Purchaser, as the landlord under
the Lease, and
Tenant shall be bound to Purchaser under all of the terms,
covenants and
conditions of the Lease for the balance of the Lease term and any
extensions or
renewals of it which may then or later be in effect under any
validly exercised
extension or renewal option contained in the Lease, all with the
same force and
effect as if Purchaser had been the original landlord under the
Lease. This
attornment shall be effective and self-operative without the
execution of any
further instruments upon Purchaser's succeeding to the interest of
the landlord
under the Lease.
5. Subordination of Options and Rights of First Refusal. The Loan
Documents
and all supplements, amendments, modifications, renewals,
replacements and
extensions of and to them shall unconditionally be and remain at
all times a
lien on the Property prior and superior to any existing or future
right of
Tenant, whether arising out of the Lease or otherwise, to exercise
any option or
right of first refusal to:
(a) purchase the Premises or the Property or any interest or
portion in or
of either of them; or
(b) expand into other space in the Improvements.
Tenant specifically agrees and acknowledges that upon any Transfer
of the
Property, any such purchase or expansion option or right of first
refusal,
whether now existing or in the future arising, shall terminate and
be
inapplicable to the Property notwithstanding the nondisturbance
granted to
Tenant in Section 3 above. If any option or right of first refusal
to purchase
is exercised prior to a Transfer of the Property, any title so
acquired to all
or any part of the Property shall be subject to the lien of the
Loan Documents,
which lien shall in no way be impaired by
EXHIBIT I
-2-
<PAGE>
the exercise of such option or right of first refusal. Beneficiary
specifically
reserves all of its rights to enforce any accelerating transfer,
due on sale,
due on encumbrance or similar provision in the Deed of Trust or any
other Loan
Document.
6. Notices of Default; Material Notices; Beneficiary's Rights to
Cure
Default. Tenant shall send a copy of any notice of default or
similar statement
with respect to the Lease to Beneficiary at the same time such
notice or
statement is sent to Borrower. In the event of any act or omission
by Borrower
which would give Tenant the right to terminate the Lease or to
claim a partial
or total eviction, Tenant shall not exercise any such right or make
any such
claim until it has given Beneficiary written notice of such act or
omission and
has given Beneficiary either thirty (30) days to cure the default
if the default
is monetary or a reasonable time for Beneficiary to cure the
default if the
default is nonmonetary. Nothing in this Agreement, however, shall
be construed
as a promise or undertaking by Beneficiary to cure any default of
Borrower.
7. Limitation on Beneficiary's Performance. Nothing in this
Agreement shall
be deemed or construed to be an agreement by Beneficiary to perform
any covenant
of Borrower as landlord under the Lease. Tenant agrees that if
Beneficiary
becomes Purchaser then, upon subsequent transfer of the Property by
Beneficiary
to a new owner, Beneficiary shall have no further liability under
the Lease
after said transfer.
8. Limitation on Liability. No Purchaser who acquires title to the
Property
shall have any obligation or liability beyond its interest in the
Property.
Purchaser shall not have any obligations or liability with respect
to the
completion of improvements which were part of the initial tenant
improvements at
the commencement of the Lease.
9. Tenant's Covenants. Tenant agrees that during the term of the
Lease,
without Beneficiary's prior written consent, Tenant shall not:
(a) pay any rent or additional rent more than one month in advance
to
any landlord including Borrower; or
(b) cancel, terminate or surrender the Lease, except at the
normal
expiration of the Lease term or as provided in Section 6 above;
or
(c) enter into any material amendment, modification or other
agreement
relating to the Lease; or
(d) assign or sublet any portion of the Lease or the Premises,
except
as expressly permitted in the Lease.
10. Beneficiary Not Obligated. Beneficiary, if it becomes the
Purchaser or
if it takes possession under the Deed of Trust, and any other
Purchaser shall
not (a) be liable for any damages or other relief attributable to
any act or
omission of any prior Landlord under the Lease including Borrower;
or (b) be
subject to any offset or defense which Tenant may have against any
prior
landlord under the Lease; or (c) be bound by any prepayment by
Tenant of more
than one month's installment of rent; or (d) be obligated for any
security
deposit not actually delivered to Purchaser; (e) be bound by any
modification or
amendment of or to the Lease unless the amendment or modification
shall have
been approved in writing by Beneficiary or (f) be liable to Tenant
or any other
party for any conflict between the provisions of the Lease and the
provisions of
any other lease affecting the Property which is not entered into by
Purchaser;
or (g) be liable with respect to any representation, warranty or
indemnity not
made by Purchaser. Borrower agrees to deliver to Purchaser any
security deposits
in its possession at the time Purchaser takes possession of the
Property.
11. Tenant's Estoppel Certificate.
(a) True and Complete Lease. Tenant represents and warrants to
Beneficiary that Schedule 2 accurately identifies the Lease and
all
amendments, supplements, side letters and other agreements and
memoranda
pertaining to the Lease, the leasehold and/or the Premises.
EXHIBIT I
-3-
<PAGE>
(b) Tenant's Option Rights. Tenant has no right or option of
any
nature whatsoever, whether arising out of the Lease or otherwise,
to
purchase the Premises or the Property, or any interest or portion
in or of
either of them, to expand into other space in the Improvements or
to extend
or renew the term of the Lease, except as described in the
attached
Schedule 3.
(c) No Default. As of the date of this Agreement, Tenant
represents
and warrants that to the best of Tenant's knowledge there exist no
events
of default or events that with notice or the passage of time or
both would
be events of default under the Lease on either the Tenant's part or
the
Borrower's, nor is there any right of offset against any of
Tenant's
obligations under the Lease, except as described in the attached
Schedule
4. Tenant represents and warrants that the Lease is in full force
and
effect as of the date of this Agreement.
(d) Hazardous Substances. Tenant represents and warrants that it
has
not used, generated, released, discharged, stored or disposed of
any
Hazardous Substances on, under, in or about the Property other
than
Hazardous Substances used in the ordinary and commercially
reasonable
course of Tenant's business in compliance with all applicable laws.
Except
for such legal and commercially reasonable use by Tenant, Tenant
has no
actual knowledge that any Hazardous Substance is present or has
been used,
generated, released, discharged, stored or disposed of by any party
on,
under, in or about the Property. As used herein "Hazardous
Substance" means
any substance, material or waste (including petroleum and
petroleum
products), which is designated, classified or regulated as being
"toxic" or
"hazardous" or a "pollutant" or which is similarly designated,
classified
or regulated under any federal, state or local law, regulation
or
ordinance.
12. Integration; Etc. This Agreement integrates all of the terms
and
conditions of the parties' agreement regarding the subordination of
the Lease to
the Loan Documents, attornment, nondisturbance and the other
matters contained
herein. This Agreement supersedes and cancels all oral negotiations
and prior
and other writings with respect to (a) such subordination (only to
such extent,
however, as would affect the priority between the Lease and the
Loan Documents),
including any provisions of the Lease which provide for the
subordination of the
Lease to a deed of trust or to a mortgage and (b) such
attornment,
non-disturbance and other matters contained herein. If there is any
conflict
between the terms, conditions and provisions of this Agreement and
those of any
other agreement or instrument, including the Lease, the terms,
conditions and
provisions of this Agreement shall prevail. This Agreement may not
be modified
or amended except by a written agreement signed by the parties or
their
respective successors in interest. This Agreement may be executed
in
counterparts, each of which is an original but all of which shall
constitute one
and the same instrument.
13. Notices. All notices given under this Agreement shall be in
writing and
shall be given by personal delivery, overnight receipted courier or
by
registered or certified United States mail, postage prepaid, sent
to the party
at its address appearing below. Notices shall be effective upon
receipt (or on
the date when proper delivery is refused). Addresses for notices
may be changed
by any party by notice to all other parties in accordance with this
Section.
Service of any notice on any one Borrower shall be effective
service on Borrower
for all purposes.
To Beneficiary: Metropolitan Life Insurance Company
400 South El Camino Real, 8th Floor
San Mateo, California 94402
Attn: Vice President-Real Estate
Investments
To Borrower: Catellus Development Corporation
201 Mission Street
San Francisco, California 94105
Attn: Asset Management
EXHIBIT I
-4-
<PAGE>
To Tenant: Synetics Solutions Inc.
18870 NE Riverside Pkwy.
Tigard, Oregon 97224
Attn: Koki Nakamura
14. Attorneys' Fees. If any lawsuit, judicial reference or
arbitration is
commenced which arises out of or relates to this Agreement, the
prevailing party
shall be entitled to recover from each other party such sums as the
court,
referee or arbitrator may adjudge to be reasonable attorneys' fees,
including
the costs for any legal services by in-house counsel, in addition
to costs and
expenses otherwise allowed by law.
15. Miscellaneous Provisions. This Agreement shall inure to the
benefit of
and be binding upon the parties and their respective successors and
assigns.
This Agreement is governed by the laws of the State of Oregon
without regard to
the choice of law rules of that State. This Agreement satisfies any
condition or
requirement in the Lease relating to the granting of a
nondisturbance agreement
by Beneficiary. As used herein, the word "include(s)" means
"inciude(s) without
limitation," and the word "including" means "including but not
limited to."
Beneficiary, at its sole discretion, may but shall not be obligated
to record
this Agreement.
EXHIBIT I
-5-
<PAGE>
NOTICE: THIS AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE
PERSON
OBLIGATED ON YOUR LEASE TO OBTAIN A LOAN, A PORTION OF WHICH MAY BE
EXPENDED FOR
PURPOSES OTHER THAN IMPROVEMENT OF THE PROPERTY.
"TENANT" SYNETICS SOLUTIONS INC.,
an Oregon corporation
By: /s/ Koki Nakamura
------------------------------------
Name: Koki Nakamura
Title: CEO & Chairman
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"BORROWER" CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation
By: Catellus Commercial Group, LLC,
a Delaware limited liability company
Its: Duly Authorized Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"BENEFICIARY" Metropolitan Life Insurance Company,
a New York corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT I
-6-
<PAGE>
STATE OF Oregon )
)ss.
COUNTY OF Multnomah )
On March 27, 2001, before me, Sarah Culver, a Notary Public in and
for said
state, personally appeared Koki Nakamura, personally known to me
(or proved to
me on the basis of satisfactory evidence) to be the person whose
name is
subscribed to the within instrument and acknowledged to me that
he/she executed
the same in his/her authorized capacity, and that by his/her
signature on the
instrument, the person, or the entity upon behalf of which the
person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Sarah M. Culver
----------------------------------------
Notary Public in and for said State
(STAMP)
(SEAL)
STATE OF _________________ )
)ss.
COUNTY OF _________________ )
On _____________________, before me,
_____________________________________,
a Notary Public in and for said state, personally appeared
_____________________
___________________________________________________, personally
known to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name
is subscribed to the within instrument and acknowledged to me that
he/she
executed the same in his/her authorized capacity, and that by
his/her signature
on the instrument, the person, or the entity upon behalf of which
the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-7-
<PAGE>
STATE OF _________________ )
)ss.
COUNTY OF _________________ )
On ______________, before me, ______________________, a Notary
Public in
and for said state, personally appeared
_____________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
STATE OF _________________ )
)ss.
COUNTY OF _________________ )
On ____________, before me, ____________________, a Notary Public
in and
for said state, personally appeared
__________________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-8-
<PAGE>
STATE OF _________________ )
)ss.
COUNTY OF _________________ )
On _________________, before me, _____________________________, a
Notary
Public in and for said state, personally appeared
___________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
STATE OF _________________ )
)ss.
COUNTY OF _________________ )
On ___________________, before me,
________________________________, a
Notary Public in and for said state, personally appeared
_______________________
________________________________________, personally known to me
(or proved to
me on the basis of satisfactory evidence) to be the person whose
name is
subscribed to the within instrument and acknowledged to me that
he/she executed
the same in his/her authorized capacity, and that by his/her
signature on the
instrument, the person, or the entity upon behalf of which the
person acted,
executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-9-
<PAGE>
SCHEDULE 1
PROPERTY DESCRIPTION
Lot 2, Southshore Corporate Park, in the City of Gresham, County
of
Multnomah and State of Oregon, Plat Book 1243 Pages 12 through 18
inclusive.
SCHEDULE 1 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 2
IDENTIFY LEASE AND LIST ALL AMENDMENTS,
SUPPLEMENTS, SIDE LETTERS AND OTHER AGREEMENTS
AND MEMORANDA PERTAINING TO LEASE, PREMISES OR PROPERTY
1) Multi-Tenant Industrial Triple Net Lease dated December 15, 2000
between
Borrower and Tenant.
SCHEDULE 2 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 3
LIST OF PURCHASE, EXPANSION, FIRST REFUSAL
EXTENSION AND RENEWAL OPTIONS
1) One (1) five (5) year option to extend the term of the Lease
pursuant to
Section 19 of the Addendum to Lease.
SCHEDULE 3 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 4
LIST ANY EXISTING DEFAULTS OR OFFSETS UNDER LEASE
None.
SCHEDULE 4 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 5
MODIFIED LEASE TERMS
None
SCHEDULE 5 to EXHIBIT I
-1-
<PAGE>
EXHIBIT I
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Beneficiary
Metropolitan Life Insurance Company
c/o Preston Gates and Ellis, LLP
One Maritime Plaza, Suite 2400
San Francisco, California 94111
Attn: Susan Reid, Esq. )
Space above for Recorder's Use
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
RESULTS
IN YOUR LEASEHOLD ESTATE BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE
LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
This Subordination, Nondisturbance and Attornment Agreement
("Agreement")
is entered into as of the ______ day of March, 2001 by and
among
SYNETICS SOLUTIONS INC., an Oregon corporation ("Tenant"), Catellus
Development
Corporation, a Delaware corporation ("Borrower") and Metropolitan
Life Insurance
Company (Beneficiary).
FACTUAL BACKGROUND
A. Borrower owns certain real property in the County of Multnomah,
State of
Oregon, more particularly described in the attached Schedule 1 term
"Property"
herein means that real property together with all improvements
(the
"Improvements") located on it.
B. Beneficiary has made or agreed to make a loan to Borrower in
the
principal amount of Two Hundred Million and no/100 Dollars
($200,000,000.00)
(the "Loan") as provided in a loan application (the "Loan
Application"). The
Loan is or will be evidenced by a promissory note (the "Note")
which is or will
be secured by a deed of trust encumbering the Property (the "Deed
of Trust")
with an assignment of rents. The Note, the Deed of Trust, this
Agreement and all
other documents and instruments identified in the Deed of Trust as
"Loan
Documents" shall be collectively referred to herein as the "Loan
Documents".
C. Tenant and Borrower (as landlord) entered into a lease dated
December
15, 2000 (the "Lease") under which Borrower leased to Tenant a
portion of the
Improvements located within the Property and more particularly
described in the
Lease (the "Premises").
D. It is a requirement of the Loan to Borrower that Tenant agree,
among
other things, to subordinate Tenant's rights under the Lease to the
lien of the
Loan Documents and to attorn to Beneficiary on the terms and
conditions of this
Agreement. Tenant is willing to agree to such subordination and
attornment and
other conditions, provided that Beneficiary agrees to a
nondisturbance
provision, all as set forth more fully below.
EXHIBIT I
-1-
<PAGE>
AGREEMENT:
Therefore, the parties agree as follows:
1. Subordination. The Loan Documents and all supplements,
amendments,
modifications, renewals, replacements and extensions of and to them
shall
unconditionally be and remain at all times a lien on the Property
prior and
superior to the Lease, to the leasehold estate created by it, and
to all rights
and privileges of Tenant under it. The Lease and leasehold estate,
together with
all rights and privileges of Tenant under that Lease, are hereby
unconditionally
made subordinate to the lien of the Loan Documents in favor of
Beneficiary.
Tenant consents to Borrower and Beneficiary entering into the Deed
of Trust and
the other Loan Documents. Tenant further declares, agrees and
acknowledges that
in making disbursements under the Loan Documents Beneficiary has no
obligation
or duty to, nor has Beneficiary represented that it will, see to
the application
of such proceeds by the person or persons to whom they are
disbursed by
Beneficiary, and any application or use of such proceeds for
purposes other than
those provided for in the Loan Documents shall not defeat the
subordination made
in this Agreement, in whole or in part.
2. Definitions of "Transfer of the Property" and "Purchaser". As
used
herein, the term "Transfer of the Property" means any transfer of
Borrower's
interest in the Property by foreclosure, trustee's sale or other
action or
proceeding for the enforcement of the Deed of Trust or by deed in
lieu thereof.
The term "Purchaser", as used herein, means any transferee,
including
Beneficiary, of the interest of Borrower as a result of any such
Transfer of the
Property and also includes any and all successors and assigns,
including
Beneficiary, of such transferee.
3. Nondisturbance. The enforcement of the Deed of Trust shall not
terminate
the Lease or disturb Tenant in the possession and use of the
Premises unless at
the time of foreclosure Tenant is in significant default under the
Lease or this
Agreement beyond any applicable grace or cure periods, and
Beneficiary or
Purchaser so notifies Tenant in writing by the later of (i) 120
days prior to or
after the Transfer of the Property, or (ii) if Beneficiary and
Purchaser did not
have notice of the pre-foreclosure default, within 120 days of
notice of the
default that the Lease will be terminated by foreclosure because of
such
default. The nondisturbance herein granted is subject to Section 5
below. To the
extent that the Lease is extinguished by law as a result of the
foreclosure, a
new lease shall automatically go into effect upon the same
provisions as
contained in the Lease, as modified by this Agreement, for the
unexpired term of
the Lease. This nondisturbance applies to any option to extend or
renew the
Lease term which is set forth in the Lease as of the date of this
Agreement.
4. Attornment. Subject to Section 3 above, if any Transfer of the
Property
should occur, Tenant shall and hereby does attorn to Purchaser,
including
Beneficiary if it should be the Purchaser, as the landlord under
the Lease, and
Tenant shall be bound to Purchaser under all of the terms,
covenants and
conditions of the Lease for the balance of the Lease term and any
extensions or
renewals of it which may then or later be in effect under any
validly exercised
extension or renewal option contained in the Lease, all with the
same force and
effect as if Purchaser had been the original landlord under the
Lease. This
attornment shall be effective and self-operative without the
execution of any
further instruments upon Purchaser's succeeding to the interest of
the landlord
under the Lease.
5. Subordination of Options and Rights of First Refusal. The Loan
Documents
and all supplements, amendments, modifications, renewals,
replacements and
extensions of and to them shall unconditionally be and remain at
all times a
lien on the Property prior and superior to any existing or future
right of
Tenant, whether arising out of the Lease or otherwise, to exercise
any option or
right of first refusal to:
(a) purchase the Premises or the Property or any interest or
portion
in or of either of them; or
(b) expand into other space in the Improvements.
Tenant specifically agrees and acknowledges that upon any Transfer
of the
Property, any such purchase or expansion option or right of first
refusal,
whether now existing or in the future arising, shall terminate and
be
inapplicable to the Property notwithstanding the nondisturbance
granted to
Tenant in Section 3 above. If any option or right of first refusal
to purchase
is exercised prior to a Transfer of the Property, any title so
acquired to all
or any part of the Property shall be subject to the lien of the
Loan Documents,
which lien shall in no way be impaired by
EXHIBIT I
-2-
<PAGE>
the exercise of such option or right of first refusal. Beneficiary
specifically
reserves all of its rights to enforce any accelerating transfer,
due on sale,
due on encumbrance or similar provision in the Deed of Trust or any
other Loan
Document.
6. Notices of Default; Material Notices; Beneficiary's Rights to
Cure
Default. Tenant shall send a copy of any notice of default or
similar statement
with respect to the Lease to Beneficiary at the same time such
notice or
statement is sent to Borrower. In the event of any act or omission
by Borrower
which would give Tenant the right to terminate the Lease or to
claim a partial
or total eviction, Tenant shall not exercise any such right or make
any such
claim until it has given Beneficiary written notice of such act or
omission and
has given Beneficiary either thirty (30) days to cure the default
if the default
is monetary or a reasonable time for Beneficiary to cure the
default if the
default is nonmonetary. Nothing in this Agreement, however, shall
be construed
as a promise or undertaking by Beneficiary to cure any default of
Borrower.
7. Limitation on Beneficiary's Performance. Nothing in this
Agreement shall
be deemed or construed to be an agreement by Beneficiary to perform
any covenant
of Borrower as landlord under the Lease. Tenant agrees that if
Beneficiary
becomes Purchaser then, upon subsequent transfer of the Property by
Beneficiary
to a new owner, Beneficiary shall have no further liability under
the Lease
after said transfer.
8. Limitation on Liability. No Purchaser who acquires title to the
Property
shall have any obligation or liability beyond its interest in the
Property.
Purchaser shall not have any obligations or liability with respect
to the
completion of improvements which were part of the initial tenant
improvements at
the commencement of the Lease.
9. Tenant's Covenants. Tenant agrees that during the term of the
Lease,
without Beneficiary's prior written consent, Tenant shall not:
(a) pay any rent or additional rent more than one month in advance
to
any landlord including Borrower; or
(b) cancel, terminate or surrender the Lease, except at the
normal
expiration of the Lease term or as provided in Section 6 above;
or
(c) enter into any material amendment, modification or other
agreement
relating to the Lease; or
(d) assign or sublet any portion of the Lease or the Premises,
except
as expressly permitted in the Lease.
10. Beneficiary Not Obligated. Beneficiary, if it becomes the
Purchaser or
if it takes possession under the Deed of Trust, and any other
Purchaser shall
not (a) be liable for any damages or other relief attributable to
any act or
omission of any prior Landlord under the Lease including Borrower;
or (b) be
subject to any offset or defense which Tenant may have against any
prior
landlord under the Lease; or (c) be bound by any prepayment by
Tenant of more
than one month's installment of rent; or (d) be obligated for any
security
deposit not actually delivered to Purchaser; (e) be bound by any
modification or
amendment of or to the Lease unless the amendment or modification
shall have
been approved in writing by Beneficiary or (f) be liable to Tenant
or any other
party for any conflict between the provisions of the Lease and the
provisions of
any other lease affecting the Property which is not entered into by
Purchaser;
or (g) be liable with respect to any representation, warranty or
indemnity not
made by Purchaser. Borrower agrees to deliver to Purchaser any
security deposits
in its possession at the time Purchaser takes possession of the
Property.
11. Tenant's Estoppel Certificate.
(a) True and Complete Lease. Tenant represents and warrants to
Beneficiary that Schedule 2 accurately identifies the Lease and
all
amendments, supplements, side letters and other agreements and
memoranda
pertaining to the Lease, the leasehold and/or the Premises.
EXHIBIT I
-3-
<PAGE>
(b) Tenant's Option Rights. Tenant has no right or option of
any
nature whatsoever, whether arising out of the Lease or otherwise,
to
purchase the Premises or the Property, or any interest or portion
in or of
either of them, to expand into other space in the Improvements or
to extend
or renew the term of the Lease, except as described in the
attached
Schedule 3.
(c) No Default. As of the date of this Agreement, Tenant
represents
and warrants that to the best of Tenant's knowledge there exist no
events
of default or events that with notice or the passage of time or
both would
be events of default under the Lease on either the Tenant's part or
the
Borrower's, nor is there any right of offset against any of
Tenant's
obligations under the Lease, except as described in the attached
Schedule
4. Tenant represents and warrants that the Lease is in full force
and
effect as of the date of this Agreement.
(d) Hazardous Substances. Tenant represents and warrants that it
has
not used, generated, released, discharged, stored or disposed of
any
Hazardous Substances on, under, in or about the Property other
than
Hazardous Substances used in the ordinary and commercially
reasonable
course of Tenant's business in compliance with all applicable laws.
Except
for such legal and commercially reasonable use by Tenant, Tenant
has no
actual knowledge that any Hazardous Substance is present or has
been used,
generated, released, discharged, stored or disposed of by any party
on,
under, in or about the Property. As used herein "Hazardous
Substance" means
any substance, material or waste (including petroleum and
petroleum
products), which is designated, classified or regulated as being
"toxic" or
"hazardous" or a "pollutant" or which is similarly designated,
classified
or regulated under any federal, state or local law, regulation
or
ordinance.
12. Integration; Etc. This Agreement integrates all of the terms
and
conditions of the parties' agreement regarding the subordination of
the Lease to
the Loan Documents, attornment, nondisturbance and the other
matters contained
herein. This Agreement supersedes and cancels all oral negotiations
and prior
and other writings with respect to (a) such subordination (only to
such extent,
however, as would affect the priority between the Lease and the
Loan Documents),
including any provisions of the Lease which provide for the
subordination of the
Lease to a deed of trust or to a mortgage and (b) such
attornment,
non-disturbance and other matters contained herein. If there is any
conflict
between the terms, conditions and provisions of this Agreement and
those of any
other agreement or instrument, including the Lease, the terms,
conditions and
provisions of this Agreement shall prevail. This Agreement may not
be modified
or amended except by a written agreement signed by the parties or
their
respective successors in interest. This Agreement may be executed
in
counterparts, each of which is an original but all of which shall
constitute one
and the same instrument.
13. Notices. All notices given under this Agreement shall be in
writing and
shall be given by personal delivery, overnight receipted courier or
by
registered or certified United States mail, postage prepaid, sent
to the party
at its address appearing below. Notices shall be effective upon
receipt (or on
the date when proper delivery is refused). Addresses for notices
may be changed
by any party by notice to all other parties in accordance with this
Section.
Service of any notice on any one Borrower shall be effective
service on Borrower
for all purposes.
To Beneficiary: Metropolitan Life Insurance Company
400 South El Camino Real, 8th Floor
San Mateo, California 94402
Attn: Vice President-Real Estate Investments
To Borrower: Catellus Development Corporation
201 Mission Street
San Francisco, California 94105
Attn: Asset Management
EXHIBIT I
-4-
<PAGE>
To Tenant: Synetics Solutions Inc.
18870 NE Riverside Pkwy.
Tigard, Oregon 97224
Attn: Koki Nakamura
14. Attorneys' Fees. If any lawsuit, judicial reference or
arbitration is
commenced which arises out of or relates to this Agreement, the
prevailing party
shall be entitled to recover from each other party such sums as the
court,
referee or arbitrator may adjudge to be reasonable attorneys' fees,
including
the costs for any legal services by in-house counsel, in addition
to costs and
expenses otherwise allowed by law.
15. Miscellaneous Provisions. This Agreement shall inure to the
benefit of
and be binding upon the parties and their respective successors and
assigns.
This Agreement is governed by the laws of the State of Oregon
without regard to
the choice of law rules of that State. This Agreement satisfies any
condition or
requirement in the Lease relating to the granting of a
nondisturbance agreement
by Beneficiary. As used herein, the word "include(s)" means
"include(s) without
limitation," and the word "including" means "including but not
limited to."
Beneficiary, at its sole discretion, may but shall not be obligated
to record
this Agreement.
EXHIBIT I
-5-
<PAGE>
NOTICE: THIS AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE
PERSON
OBLIGATED ON YOUR LEASE TO OBTAIN A LOAN, A PORTION OF WHICH MAY BE
EXPENDED FOR
PURPOSES OTHER THAN IMPROVEMENT OF THE PROPERTY.
"TENANT" SYNETICS SOLUTIONS INC.,
an Oregon corporation
By: /s/ Koki Nakamura
------------------------------------
Name: KOKI NAKAMURA
Title: CEO & Chairman
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"BORROWER" CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation
By: Catellus Commercial Group, LLC,
a Delaware limited liability company
Its: Duly Authorized Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"BENEFICIARY" Metropolitan Life Insurance Company,
a New York corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT I
-6-
<PAGE>
STATE OF Oregon )
)ss.
COUNTY OF Multnomah )
On March 27, 2001, before me, Sarah Culver, a Notary Public in and
for said
state, personally appeared Koki Nakamura, personally known to me
(or proved to
me on the basis of satisfactory evidence) to be the person whose
name is
subscribed to the within instrument and acknowledged to me that
he/she executed
the same in his/her authorized capacity, and that by his/her
signature on the
instrument, the person, or the entity upon behalf of which the
person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Sarah M. Culver
----------------------------------------
Notary Public in and for said State
(STAMP)
(SEAL)
STATE OF __________ )
)ss.
COUNTY OF _________ )
On ___________, before me, ___________, a Notary Public in and for
said
state, personally appeared ______________________, personally known
to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name
is subscribed to the within instrument and acknowledged to me that
he/she
executed the same in his/her authorized capacity, and that by
his/her signature
on the instrument, the person, or the entity upon behalf of which
the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-7-
<PAGE>
STATE OF __________ )
)ss.
COUNTY OF _________ )
On ___________, before me, ___________, a Notary Public in and for
said
state, personally appeared ______________________, personally known
to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name
is subscribed to the within instrument and acknowledged to me that
he/she
executed the same in his/her authorized capacity, and that by
his/her signature
on the instrument, the person, or the entity upon behalf of which
the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
STATE OF __________ )
)ss.
COUNTY OF _________ )
On ___________, before me, ___________, a Notary Public in and for
said
state, personally appeared ______________________, personally known
to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name
is subscribed to the within instrument and acknowledged to me that
he/she
executed the same in his/her authorized capacity, and that by
his/her signature
on the instrument, the person, or the entity upon behalf of which
the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-8-
<PAGE>
STATE OF __________ )
)ss.
COUNTY OF _________ )
On ___________, before me, ___________, a Notary Public in and for
said
state, personally appeared ______________________, personally known
to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name
is subscribed to the within instrument and acknowledged to me that
he/she
executed the same in his/her authorized capacity, and that by
his/her signature
on the instrument, the person, or the entity upon behalf of which
the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
STATE OF __________ )
)ss.
COUNTY OF _________ )
On ___________, before me, ___________, a Notary Public in and for
said
state, personally appeared ______________________, personally known
to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name
is subscribed to the within instrument and acknowledged to me that
he/she
executed the same in his/her authorized capacity, and that by
his/her signature
on the instrument, the person, or the entity upon behalf of which
the person
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-9-
<PAGE>
SCHEDULE 1
PROPERTY DESCRIPTION
Lot 2, Southshore Corporate Park, in the City of Gresham, County
of
Multnomah and State of Oregon, Plat Book 1243 Pages 12 through 18
inclusive.
SCHEDULE 1 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 2
IDENTIFY LEASE AND LIST ALL AMENDMENTS,
SUPPLEMENTS, SIDE LETTERS AND OTHER AGREEMENTS
AND MEMORANDA PERTAINING TO LEASE, PREMISES OR PROPERTY
1) Multi-Tenant Industrial Triple Net Lease dated December 15, 2000
between
Borrower and Tenant.
SCHEDULE 2 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 3
LIST OF PURCHASE, EXPANSION, FIRST REFUSAL
EXTENSION AND RENEWAL OPTIONS
1) One (1) five (5) year option to extend the term of the Lease
pursuant to
Section 19 of the Addendum to Lease.
SCHEDULE 3 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 4
LIST ANY EXISTING DEFAULTS OR OFFSETS UNDER LEASE
None.
SCHEDULE 4 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 5
MODIFIED LEASE TERMS
None
SCHEDULE 5 to EXHIBIT I
-1-
<PAGE>
TENANT ESTOPPEL CERTIFICATE
__________, 2001
Metropolitan Life Insurance Company
400 S. El Camino Real, 8th Floor
San Mateo, California 94402
Gentlemen:
The undersigned, Synetics Solutions, Inc., an Oregon
corporation
("Tenant"), as tenant under a lease (the "Lease") of certain
premises dated July
20, 2000 executed by Tenant and Catellus Development Corporation, a
Delaware
corporation, ("Landlord"), does hereby state, declare, represent
and warrant as
follows:
1. The copy of the Lease attached hereto as Exhibit A is a true
and
correct copy of the Lease and the Lease is in full force and effect
and has not
been amended, supplemented or changed, except as follows [if none,
so state]:
First Amendment to Lease dated December 19, 2000.
2. Tenant has accepted possession of the premises demised under
the
Lease, and all items of an executory nature have been completed
under the terms
of the Lease, including, but not limited to, completion of
construction of the
demised premises (and all other improvements required under the
Lease) in
accordance with applicable plans and specifications and within the
time periods
set forth in the Lease and otherwise in accordance with the Lease,
and payment
of any improvement allowance or other funds owing by Landlord to
Tenant. Tenant
further acknowledges that the term commenced on January 1, 2001 and
shall expire
on December 31, 2010 unless sooner terminated or extended in
accordance with the
terms of the Lease.
3. No default or event that with the passing of time or the giving
of
notice, or both, would constitute a default (referred to herein
collectively as
a "default") on the part of the undersigned exists under the Lease
in the
performance of the terms, covenants and conditions of the Lease
required to be
performed on the part of the undersigned.
4. No default on the part of Landlord exists under the Lease in
the
performance of the terms, covenants and conditions of the Lease
required to be
performed on the part of Landlord.
5. Tenant has no option or right to purchase the property of which
the
premises are a part, or any part thereof.
6. No rentals are accrued and unpaid under the Lease.
<PAGE>
7. No prepayments of rentals due under the Lease have been made and
no
security or deposits as security have been made thereunder, except
as set forth
in the Lease.
8. The undersigned has no defense as to its obligations under
the
Lease and claims no setoff or counterclaim against Landlord.
9. The undersigned has not received notice of any assignment,
hypothecation, mortgage, or pledge of Landlord's interest in the
Lease or the
rents or other amounts payable thereunder.
10. The undersigned agrees to notify you of any default on the part
of
Landlord under the Lease which would entitle the undersigned to
cancel the Lease
or to abate the rent payable thereunder, and further agrees
that,
notwithstanding any provisions of the Lease, no notice or
cancellation thereof
shall be effective unless you have received said notice and have
failed within
thirty (30) days after the expiration of the cure period provided
to Landlord
under the Lease to cure or commence to cure the default which gave
rise to the
notice of cancellation.
11. The undersigned understands and acknowledges that you are about
to
make a loan to Landlord and receive as part of the security for
such loan (i) a
Deed of Trust, Security Agreement and Fixture Filing encumbering
Landlord's fee
interest in the property of which the leased premises are a portion
and the
rents, issues and profits of the Lease and (ii) an Assignment of
Leases which
affects the Lease, and that you are relying upon the
representations and
warranties contained herein in making such loan.
Synetics Solutions, Inc.,
An Oregon corporation
By /s/ Koki Nakamura
-------------------------------------
Name: KOKI NAKAMURA
Its: CEO & Chairman
By
-------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
2
<PAGE>
EXHIBIT A
TO TENANT ESTOPPEL CERTIFICATE
Copy of Lease and Amendments to Lease
4
<PAGE>
TENANT ESTOPPEL CERTIFICATE
__________, 2001
Metropolitan Life Insurance Company
400 S. El Camino Real, 8th Floor
San Mateo, California 94402
Gentlemen:
The undersigned, Synetics Solutions, Inc., an Oregon
corporation
("Tenant"), as tenant under a lease (the "Lease") of certain
premises dated
December 15, 2000 executed by Tenant and Catellus Development
Corporation, a
Delaware corporation, ("Landlord"), does hereby state, declare,
represent and
warrant as follows:
1. The copy of the Lease attached hereto as Exhibit A is a true
and
correct copy of the Lease and the Lease is in full force and effect
and has not
been amended, supplemented or changed, except as follows [if none,
so state]:
None
2. Tenant has accepted possession of the premises demised under
the
Lease, and all items of an executory nature have been completed
under the terms
of the Lease, including, but not limited to, completion of
construction of the
demised premises (and all other improvements required under the
Lease) in
accordance with applicable plans and specifications and within the
time periods
set forth in the Lease and otherwise in accordance with the Lease,
and payment
of any improvement allowance or other funds owing by Landlord to
Tenant. Tenant
further acknowledges that the term commenced on January 1, 2001 and
shall expire
on December 31, 2011 unless sooner terminated or extended in
accordance with the
terms of the Lease.
3. No default or event that with the passing of time or the giving
of
notice, or both, would constitute a default (referred to herein
collectively as
a "default") on the part of the undersigned exists under the Lease
in the
performance of the terms, covenants and conditions of the Lease
required to be
performed on the part of the undersigned.
4. No default on the part of Landlord exists under the Lease in
the
performance of the terms, covenants and conditions of the Lease
required to be
performed on the part of Landlord.
5. Tenant has no option or right to purchase the property of which
the
premises are a part, or any part thereof.
6. No rentals are accrued and unpaid under the Lease.
<PAGE>
7. No prepayments of rentals due under the Lease have been made and
no
security or deposits as security have been made thereunder, except
as set forth
in the Lease.
8. The undersigned has no defense as to its obligations under
the
Lease and claims no setoff or counterclaim against Landlord.
9. The undersigned has not received notice of any assignment,
hypothecation, mortgage, or pledge of Landlord's interest in the
Lease or the
rents or other amounts payable thereunder.
10. The undersigned agrees to notify you of any default on the part
of
Landlord under the Lease which would entitle the undersigned to
cancel the Lease
or to abate the rent payable thereunder, and further agrees
that,
notwithstanding any provisions of the Lease, no notice or
cancellation thereof
shall be effective unless you have received said notice and have
failed within
thirty (30) days after the expiration of the cure period provided
to Landlord
under the Lease to cure or commence to cure the default which gave
rise to the
notice of cancellation.
11. The undersigned understands and acknowledges that you are about
to
make a loan to Landlord and receive as part of the security for
such loan (i) a
Deed of Trust, Security Agreement and Fixture Filing encumbering
Landlord's fee
interest in the property of which the leased premises are a portion
and the
rents, issues and profits of the Lease and (ii) an Assignment of
Leases which
affects the Lease, and that you are relying upon the
representations and
warranties contained herein in making such loan.
Synetics Solutions. Inc.,
An Oregon corporation
By /s/ Koki Nakamura
-------------------------------------
Name: KOKI NAKAMURA
Its: CEO & Chairman
By
-------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
2
<PAGE>
EXHIBIT A
TO TENANT ESTOPPEL CERTIFICATE
Copy of Lease and Amendments to Lease
3
<PAGE>
EXHIBIT I
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Beneficiary
Metropolitan Life Insurance Company
c/o Preston Gates and Ellis, LLP
One Maritime Plaza, Suite 2400
San Francisco, California 94111
Attn: Susan Reid, Esq. )
Space above for Recorder's Use
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
RESULTS
IN YOUR LEASEHOLD ESTATE BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE
LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
This Subordination, Nondisturbance and Attornment Agreement
("Agreement")
is entered into as of the __________ day of March, 2001 by and
among SYNETICS
SOLUTIONS INC., an Oregon corporation ("Tenant"), Catellus
Development
Corporation, a Delaware corporation ("Borrower") and Metropolitan
Life Insurance
Company (Beneficiary).
FACTUAL BACKGROUND
A. Borrower owns certain real property in the County of Multnomah,
State of
Oregon, more particularly described in the attached Schedule 1 term
"Property"
herein means that real property together with all improvements
(the
"Improvements") located on it.
B. Beneficiary has made or agreed to make a loan to Borrower in
the
principal amount of Two Hundred Million and no/100 Dollars
($200,000,000.00)
(the "Loan") as provided in a loan application (the "Loan
Application"). The
Loan is or will be evidenced by a promissory note (the "Note")
which is or will
be secured by a deed of trust encumbering the Property (the "Deed
of Trust")
with an assignment of rents. The Note, the Deed of Trust, this
Agreement and all
other documents and instruments identified in the Deed of Trust as
"Loan
Documents" shall be collectively referred to herein as the "Loan
Documents".
C. Tenant and Borrower (as landlord) entered into a lease dated
December
15, 2000 (the "Lease") under which Borrower leased to Tenant a
portion of the
Improvements located within the Property and more particularly
described in the
Lease (the "Premises").
D. It is a requirement of the Loan to Borrower that Tenant agree,
among
other things, to subordinate Tenant's rights under the Lease to the
lien of the
Loan Documents and to attorn to Beneficiary on the terms and
conditions of this
Agreement. Tenant is willing to agree to such subordination and
attornment and
other conditions, provided that Beneficiary agrees to a
nondisturbance
provision, all as set forth more fully below.
EXHIBIT I
-1-
<PAGE>
AGREEMENT:
Therefore, the parties agree as follows:
1. Subordination. The Loan Documents and all supplements,
amendments,
modifications, renewals, replacements and extensions of and to them
shall
unconditionally be and remain at all times a lien on the Property
prior and
superior to the Lease, to the leasehold estate created by it, and
to all rights
and privileges of Tenant under it. The Lease and leasehold estate,
together with
all rights and privileges of Tenant under that Lease, are hereby
unconditionally
made subordinate to the lien of the Loan Documents in favor of
Beneficiary.
Tenant consents to Borrower and Beneficiary entering into the Deed
of Trust and
the other Loan Documents. Tenant further declares, agrees and
acknowledges that
in making disbursements under the Loan Documents Beneficiary has no
obligation
or duty to, nor has Beneficiary represented that it will, see to
the application
of such proceeds by the person or persons to whom they are
disbursed by
Beneficiary, and any application or use of such proceeds for
purposes other than
those provided for in the Loan Documents shall not defeat the
subordination made
in this Agreement, in whole or in part.
2. Definitions of "Transfer of the Property" and "Purchaser". As
used
herein, the term "Transfer of the Property" means any transfer of
Borrower's
interest in the Property by foreclosure, trustee's sale or other
action or
proceeding for the enforcement of the Deed of Trust or by deed in
lieu thereof.
The term "Purchaser", as used herein, means any transferee,
including
Beneficiary, of the interest of Borrower as a result of any such
Transfer of the
Property and also includes any and all successors and assigns,
including
Beneficiary, of such transferee.
3. Nondisturbance. The enforcement of the Deed of Trust shall not
terminate
the Lease or disturb Tenant in the possession and use of the
Premises unless at
the time of foreclosure Tenant is in significant default under the
Lease or this
Agreement beyond any applicable grace or cure periods, and
Beneficiary or
Purchaser so notifies Tenant in writing by the later of (i) 120
days prior to or
after the Transfer of the Property, or (ii) if Beneficiary and
Purchaser did not
have notice of the pre-foreclosure default, within 120 days of
notice of the
default that the Lease will be terminated by foreclosure because of
such
default. The nondisturbance herein granted is subject to Section 5
below. To the
extent that the Lease is extinguished by law as a result of the
foreclosure, a
new lease shall automatically go into effect upon the same
provisions as
contained in the Lease, as modified by this Agreement, for the
unexpired term of
the Lease. This nondisturbance applies to any option to extend or
renew the
Lease term which is set forth in the Lease as of the date of this
Agreement.
4. Attornment. Subject to Section 3 above, if any Transfer of the
Property
should occur, Tenant shall and hereby does attorn to Purchaser,
including
Beneficiary if it should be the Purchaser, as the landlord under
the Lease, and
Tenant shall be bound to Purchaser under all of the terms,
covenants and
conditions of the Lease for the balance of the Lease term and any
extensions or
renewals of it which may then or later be in effect under any
validly exercised
extension or renewal option contained in the Lease, all with the
same force and
effect as if Purchaser had been the original landlord under the
Lease. This
attornment shall be effective and self-operative without the
execution of any
further instruments upon Purchaser's succeeding to the interest of
the landlord
under the Lease.
5. Subordination of Options and Rights of First Refusal. The Loan
Documents
and all supplements, amendments, modifications, renewals,
replacements and
extensions of and to them shall unconditionally be and remain at
all times a
lien on the Property prior and superior to any existing or future
right of
Tenant, whether arising out of the Lease or otherwise, to exercise
any option or
right of first refusal to:
(a) purchase the Premises or the Property or any interest or
portion
in or of either of them; or
(b) expand into other space in the Improvements.
Tenant specifically agrees and acknowledges that upon any Transfer
of the
Property, any such purchase or expansion option or right of first
refusal,
whether now existing or in the future arising, shall terminate and
be
inapplicable to the Property notwithstanding the nondisturbance
granted to
Tenant in Section 3 above. If any option or right of first refusal
to purchase
is exercised prior to a Transfer of the Property, any title so
acquired to all
or any part of the Property shall be subject to the lien of the
Loan Documents,
which lien shall in no way be impaired by
EXHIBIT I
-2-
<PAGE>
the exercise of such option, or right of first refusal. Beneficiary
specifically
reserves all of its rights to enforce any accelerating transfer,
due on sale,
due on encumbrance or similar provision in the Deed of Trust or any
other
Loan Document.
6. Notices of Default; Material Notices; Beneficiary's Rights to
Cure
Default. Tenant shall send a copy of any notice of default or
similar statement
with respect to the Lease to Beneficiary at the same time such
notice or
statement is sent to Borrower. In the event of any act or omission
by Borrower
which would give Tenant the right to terminate the Lease or to
claim a partial
or total eviction, Tenant shall not exercise any such right or make
any such
claim until it has given Beneficiary written notice of such act or
omission and
has given Beneficiary either thirty (30) days to cure the default
if the default
is monetary or a reasonable time for Beneficiary to cure the
default if the
default is nonmonetary. Nothing in this Agreement, however, shall
be construed
as a promise or undertaking by Beneficiary to cure any default of
Borrower.
7. Limitation on Beneficiary's Performance. Nothing in this
Agreement shall
be deemed or construed to be an agreement by Beneficiary to perform
any covenant
of Borrower as landlord under the Lease. Tenant agrees that if
Beneficiary
becomes Purchaser then, upon subsequent transfer of the Property by
Beneficiary
to a new owner, Beneficiary shall have no further liability under
the Lease
after said transfer.
8. Limitation on Liability. No Purchaser who acquires title to the
Property
shall have any obligation or liability beyond its interest in the
Property.
Purchaser shall not have any obligations or liability with respect
to the
completion of improvements which were part of the initial tenant
improvements at
the commencement of the Lease.
9. Tenant's Covenants. Tenant agrees that during the term of the
Lease,
without Beneficiary's prior written consent, Tenant shall not:
(a) pay any rent or additional rent more than one month in advance
to
any landlord including Borrower; or
(b) cancel, terminate or surrender the Lease, except at the
normal
expiration of the Lease term or as provided in Section 6 above;
or
(c) enter into any material amendment, modification or other
agreement
relating to the Lease; or
(d) assign or sublet any portion of the Lease or the Premises,
except
as expressly permitted in the Lease.
10. Beneficiary Not Obligated. Beneficiary, if it becomes the
Purchaser or
if it takes possession under the Deed of Trust, and any other
Purchaser shall
not (a) be liable for any damages or other relief attributable to
any act or
omission of any prior Landlord under the Lease including Borrower,
or (b) be
subject to any offset or defense which Tenant may have against any
prior
landlord under the Lease; or (c) be bound by any prepayment by
Tenant of more
than one month's installment of rent; or (d) be obligated for any
security
deposit not actually delivered to Purchaser; (e) be bound by any
modification or
amendment of or to the Lease unless the amendment or modification
shall have
been approved in writing by Beneficiary or (f) be liable to Tenant
or any other
party for any conflict between the provisions of the Lease and the
provisions of
any other lease affecting the Property which is not entered into by
Purchaser;
or (g) be liable with respect to any representation, warranty or
indemnity not
made by Purchaser. Borrower agrees to deliver to Purchaser any
security deposits
in its possession at the time Purchaser takes possession of the
Property.
11. Tenant's Estoppel Certificate.
(a) True and Complete Lease. Tenant represents and warrants to
Beneficiary that Schedule 2 accurately identifies the Lease and
all
amendments, supplements, side letters and other agreements and
memoranda
pertaining to the Lease, the leasehold and/or the Premises.
EXHIBIT I
-3-
<PAGE>
(b) Tenant's Option Rights. Tenant has no right or option of
any
nature whatsoever, whether arising out of the Lease or otherwise,
to
purchase the Premises or the Property, or any interest or portion
in or of
either of them, to expand into other space in the Improvements or
to extend
or renew the term of the Lease, except as described in the
attached
Schedule 3.
(c) No Default. As of the date of (his Agreement, Tenant
represents
and warrants that to the best of Tenant's knowledge there exist no
events
of default or events that with notice or the passage of time or
both would
be events of default under the Lease on either the Tenant's part or
the
Borrower's, nor is there any right of offset against any of
Tenant's
obligations under the Lease, except as described in the attached
Schedule
4. Tenant represents and warrants that the Lease is in full force
and
effect as of the date of this Agreement.
(d) Hazardous Substances. Tenant represents and warrants that it
has
not used, generated, released, discharged, stored or disposed of
any
Hazardous Substances on, under, in or about the Property other
than
Hazardous Substances used in the ordinary and commercially
reasonable
course of Tenant's business in compliance with all applicable laws.
Except
for such legal and commercially reasonable use by Tenant, Tenant
has no
actual knowledge that any Hazardous Substance is present or has
been used,
generated, released, discharged, stored or disposed of by any party
on,
under, in or about the Property. As used herein "Hazardous
Substance" means
any substance, material or waste (including petroleum and
petroleum
products), which is designated, classified or regulated as being
"toxic" or
"hazardous" or a "pollutant" or which is similarly designated,
classified
or regulated under any federal, state or local law, regulation
or
ordinance.
12. Integration; Etc. This Agreement integrates all of the terms
and
conditions of the parties' agreement regarding the subordination of
the Lease to
the Loan Documents, attornment, nondisturbance and the other
matters contained
herein. This Agreement supersedes and cancels all oral negotiations
and prior
and other writings with respect to (a) such subordination (only to
such extent,
however, as would affect the priority between the Lease and the
Loan Documents),
including any provisions of the Lease which provide for the
subordination of the
Lease to a deed of trust or to a mortgage and (b) such
attornment,
non-disturbance and other matters contained herein. If there is any
conflict
between the terms, conditions and provisions of this Agreement and
those of any
other agreement or instrument, including the Lease, the terms,
conditions and
provisions of this Agreement shall prevail. This Agreement may not
be modified
or amended except by a written agreement signed by the parties or
their
respective successors in interest. This Agreement may be executed
in
counterparts, each of which is an original but all of which shall
constitute one
and the same instrument.
13. Notices. All notices given under this Agreement shall be in
writing and
shall be given by personal delivery, overnight receipted courier or
by
registered or certified United States mail, postage prepaid, sent
to the party
at its address appearing below. Notices shall be effective upon
receipt (or on
the date when proper delivery is refused). Addresses for notices
may be changed
by any party by notice to all other parties in accordance with this
Section.
Service of any notice on any one Borrower shall be effective
service on Borrower
for all purposes.
To Beneficiary:
Metropolitan Life Insurance Company
400 South El Camino Real, 8th Floor
San Mateo, California 94402
Attn: Vice President-Real Estate Investments
To Borrower: Catellus Development Corporation
201 Mission Street
San Francisco, California 94105
Attn: Asset Management
EXHIBIT I
-4-
<PAGE>
To Tenant: Synetics Solutions Inc.
18870 NE Riverside Pkwy.
Tigard, Oregon 97224
Attn: Koki Nakamura
14. Attorneys' Fees. If any lawsuit, judicial reference or
arbitration is
commenced which arises out of or relates to this Agreement, the
prevailing party
shall be entitled to recover from each other party such sums as the
court,
referee or arbitrator may adjudge to be reasonable attorneys' fees,
including
the costs for any legal services by in-house counsel, in addition
to costs and
expenses otherwise allowed by law.
15. Miscellaneous Provisions. This Agreement shall inure to the
benefit of
and be binding upon the parties and their respective successors and
assigns.
This Agreement is governed by the laws of the State of Oregon
without regard to
the choice of law rules of that State. This Agreement satisfies any
condition or
requirement in the Lease relating to the granting of a
nondisturbance agreement
by Beneficiary. As used herein, the word "include(s)" means
"include(s) without
limitation," and the word "including" means "including but not
limited to."
Beneficiary, at its sole discretion, may but shall not be obligated
to record
this Agreement.
EXHIBIT I
-5-
<PAGE>
NOTICE: THIS AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE
PERSON
OBLIGATED ON YOUR LEASE TO OBTAIN A LOAN, A PORTION OF WHICH MAY BE
EXPENDED FOR
PURPOSES OTHER THAN IMPROVEMENT OF THE PROPERTY.
"TENANT" SYNETICS SOLUTIONS INC.,
an Oregon corporation
By: /s/ Koki Nakamura
------------------------------------
Name: KOKI NAKAMURA
Title: CEO & Chairman
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"BORROWER" CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation
By: Catellus Commercial Group, LLC,
a Delaware limited liability company
Its: Duly Authorized Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"BENEFICIARY" Metropolitan Life Insurance Company,
a New York corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT I
-6-
<PAGE>
STATE OF Oregon )
) ss.
COUNTY OF Multnomah )
On March 27, 2001, before me, Sarah Culver, a Notary Public in and
for said
state, personally appeared Koki Nakamura, personally known to me
(or proved to
me on the basis of satisfactory evidence) to be the person whose
name is
subscribed to the within instrument and acknowledged to me that
he/she executed
the same in his/her authorized capacity, and that by his/her
signature on the
instrument, the person, or the entity upon behalf of which the
person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Sarah M. Culver
----------------------------------------
Notary Public in and for said State
(STAMP)
(SEAL)
STATE OF _______________)
) ss.
COUNTY OF ______________)
On _____________________, before me, _______________________, a
Notary
Public in and for said state, personally appeared
__________________, personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the
person whose name is subscribed to the within instrument and
acknowledged to me
that he/she executed the same in his/her authorized capacity, and
that by
his/her signature on the instrument, the person, or the entity upon
behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-7-
<PAGE>
STATE OF _______________)
) ss.
COUNTY OF ______________)
On _______________________, before me, _____________________, a
Notary
Public in and for said state, personally appeared
______________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
STATE OF _______________)
) ss.
COUNTY OF ______________)
On _______________________, before me, _______________________, a
Notary
Public in and for said state, personally appeared
_______________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-8-
<PAGE>
STATE OF ___________________________ )
)ss.
COUNTY OF __________________________ )
On _______________, before me, ____________________, a Notary
Public in and
for said state, personally appeared
________________________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
STATE OF ___________________________ )
)ss.
COUNTY OF __________________________ )
On _________________, before me, __________________, a Notary
Public in and
for said state, personally appeared
________________________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her
authorized capacity,
and that by his/her signature on the instrument, the person, or the
entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said State
(SEAL)
EXHIBIT I
-9-
<PAGE>
SCHEDULE 1
PROPERTY DESCRIPTION
Lot 2, Southshore Corporate Park, in the City of Gresham, County
of
Multnomah and State of Oregon, Plat Book 1243 Pages 12 through 18
inclusive.
SCHEDULE 1 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 2
IDENTIFY LEASE AND LIST ALL AMENDMENTS,
SUPPLEMENTS, SIDE LETTERS AND OTHER AGREEMENTS
AND MEMORANDA PERTAINING TO LEASE, PREMISES OR PROPERTY
1) Multi-Tenant Industrial Triple Net Lease dated December 15, 2000
between
Borrower and Tenant.
SCHEDULE 2 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 3
LIST OF PURCHASE, EXPANSION, FIRST REFUSAL
EXTENSION AND RENEWAL OPTIONS
1) One (1) five (5) year option to extend the term of the Lease
pursuant to
Section 19 of the Addendum to Lease.
SCHEDULE 3 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 4
LIST ANY EXISTING DEFAULTS OR OFFSETS UNDER LEASE
None.
SCHEDULE 4 to EXHIBIT I
-1-
<PAGE>
SCHEDULE 5
MODIFIED LEASE TERMS
None
SCHEDULE 5 to EXHIBIT I
-1-
<PAGE>
MULTI-TENANT INDUSTRIAL TRIPLE NET LEASE
Effective Date: December 15, 2000
(the date set forth below Landlord's signature)
BASIC LEASE INFORMATION
Landlord: CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation
Landlord's Address For 201 Mission Street
Notice: San Francisco, California 94105
Attn: Asset Management & Office of General Counsel
Telephone: (415)974-4500
Fax: (415)974-4687
With a Copy to: CB Richard Ellis
1300 SW 5th Avenue, Suite 2600
Portland, Oregon 97201
Attn: Property Management
Telephone: (503)221-1900
Fax: (503)221-4873
Landlord's Address For File # 1918
Payment of Rent: P.O. Box 61000
San Francisco, California 94161-1918
Tenant: SYNETICS SOLUTIONS INC.,
an Oregon corporation
Tenant's Address For 7440 S.W. Bonita Avenue
Notice: Tigard, Oregon 97224
Attn: Koki Nakamura
Telephone: (503) 670-9934
Fax: (503)639-2264
Project: Those portions of "Southshore Corporate Park" located
in the City of Gresham, County of Multnomah, State of
Oregon. A conceptual plot plan of Southshore Corporate
Park (the "Site Plan") is attached hereto as Exhibit
A-1 (which indicates thereon the approximate location
of the Premises and other parcels of land within
Southshore Corporate Park as presently contemplated by
Landlord). Tenant acknowledges that Exhibit A-1 is
intended to be used only for illustrative purposes and
nothing contained therein shall constitute a
representation or warranty by Landlord.
Land: Approximately 10.2 acre parcel of land shown on the
Site Plan attached hereto as Exhibit A-1.
(i)
<PAGE>
<TABLE>
<S> <C>
Building: An office/manufacturing/warehouse building
located on the Land and containing
approximately 180,000 rentable square feet.
Premises: Approximately 44,930 rentable square feet
located within the Building as shown on Exhibit
A-2.
Premises Address: Southshore Corporate Park - Building C
Street: 4293 NE 189th Avenue
City and State: Gresham, Oregon 97230
Term: One Hundred Twenty (120) months
Possession Date: December 15, 2000
Commencement Date: January 1, 2001
Monthly Base Rent: Monthly
Months Base Rent
------- ------------
1-24 $16,399.45
25-48 $17,383.42
49-72 $18,462.42
73-96 $19,532.00
97-120 $20,703.93
121-144+ $21,946.16
145-168+ $23,262.93
169-180+ $24,658.71
+ Subject to the provisions of the Option to
Extend set forth in Section 19 of the
Addendum to Lease
Tenant's Share of Building 24.96%
Operating Expenses:
Tenant's Share of Project 10.01%
Operating Expenses:
Letter of Credit: $98,394.00, subject to adjustment pursuant to
Section 3.3
Broker: Landlord's Broker: CB Richard Ellis
Tenant's Broker: Macadam Forbes, Inc.
</TABLE>
(ii)
<PAGE>
<TABLE>
<S> <C>
Lease Year: Shall refer to each twelve (12) month period
during the Term commencing on the Commencement
Date.
Permitted Uses: The manufacturing, warehousing and distribution
of mini-clean room environment equipment and
other related activities, together with
collateral office space, all to the extent
consistent with the character of the Project as
a first-class industrial project. No other uses
shall be permitted without the prior written
consent of Landlord, which may be given or
withheld in Landlord's sole and absolute
discretion. In no event shall any use of the
Premises violate the Prohibited Uses set forth
in Exhibit E attached hereto or the terms of
the CC&Rs (defined in Section 11 of the Lease)
and all uses of the Premises shall at all times
comply with and be consistent with all of the
provisions of this Lease (including, without
limitation, the Rules and Regulations attached
hereto as Exhibit F) and applicable law.
Parking Spaces: Forty-Eight (48) unreserved parking spaces,
subject to the terms of Section 1.4
Rentable Square Feet of Shall mean (a) the total square footage of
the
Premises: Premises, measured from the outside of the
exterior walls of the Building and to the
center of any demising walls separating the
Premises from other premises in the Building,
plus (b) a pro rata share of any common utility
rooms and/or electrical vaults located in the
Building that do not exclusively serve the
Premises or other premises leased to other
tenants of the Building (which pro rata share
shall be the same percentage as Tenant's Share
of Building Operating Expenses).
Rentable Square Feet of Shall mean the total square footage of
the
Building: Building, measured from the outside of the
exterior walls of the Building to the center
thereof.
Option to Extend: One (1) five (5) year Option to Extend in
accordance with Section 19 in the Addendum to
Lease.
</TABLE>
ADDENDUM
EXHIBITS
A-1 Site Plan
A-2 Premises
B Work Letter
C Commencement Date Memorandum
D Insurance Certificate
E Prohibited Uses
F Rules and Regulations
G Requirements for Improvements or Alterations by Tenant
H Estoppel Certificate
I Subordination, Non-Disturbance and Attornment Agreement
J Arbitration Procedures
K Form of Letter of Credit
(iii)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. PREMISES
.......................................................... 1
1.1 Premises ...................................................
1
1.2 Common Area ................................................
1
1.3 Reserved Rights ............................................
1
1.4 Parking ....................................................
1
2. TERM
..............................................................
2
2.1 Commencement Date ..........................................
2
2.2 Intentionally Deleted ......................................
2
2.3 Early Entry ................................................
2
3. RENT
..............................................................
2
3.1 Rent .......................................................
2
3.2 Late Charge and Interest ...................................
3
3.3 Letter of Credit ...........................................
3
4. UTILITIES
......................................................... 4
5. TAXES
............................................................. 4
5.1 Real Property Taxes ........................................
4
5.2 Definition of Real Property Taxes ..........................
4
5.3 Personal Property Taxes ....................................
5
6. OPERATING EXPENSES
................................................ 5
6.1 Operating Expenses .........................................
5
6.2 Definition of Operating Expenses ...........................
5
7. ESTIMATED EXPENSES
................................................ 6
7.1 Payment ....................................................
6
7.2 Adjustment .................................................
6
7.3 Audit Right ................................................
6
8. INSURANCE
......................................................... 7
8.1 Landlord ...................................................
7
8.2 Tenant .....................................................
7
8.3 General ....................................................
8
8.4 Indemnity ..................................................
8
8.5 Exemption of Landlord from Liability .......................
9
9. REPAIRS AND MAINTENANCE
........................................... 9
9.1 Tenant .....................................................
9
9.2 Landlord ...................................................
10
9.3 Landlord's Failure to Perform ..............................
10
10. ALTERATIONS
....................................................... 11
10.1 Trade Fixtures; Alterations ................................
11
10.2 Damage; Removal ............................................
11
10.3 Liens ......................................................
12
10.4 Standard of Work ...........................................
12
11. USE
...............................................................
12
12. ENVIRONMENTAL MATTERS
............................................. 13
12.1 Hazardous Materials ........................................
13
12.2 Tenant's Indemnification ...................................
13
12.3 Pre-existing Conditions and Indemnification ................
14
13. DAMAGE AND DESTRUCTION
............................................ 14
13.1 Casualty ...................................................
14
13.2 Tenant's Fault .............................................
16
</TABLE>
(v)
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
13.3 Uninsured Casualty .........................................
16
13.4 Waiver .....................................................
16
14. EMINENT DOMAIN
.................................................... 16
14.1 Total Condemnation .........................................
16
14.2 Partial Condemnation .......................................
16
14.3 Award ......................................................
17
14.4 Temporary Condemnation .....................................
17
15. DEFAULT
........................................................... 17
15.1 Events of Defaults .........................................
17
15.2 Remedies ...................................................
17
15.3 Cumulative .................................................
18
16. ASSIGNMENT AND SUBLETTING
......................................... 19
17. ESTOPPEL, ATTORNMENT AND SUBORDINATION
............................ 19
17.1 Estoppel ...................................................
19
17.2 Subordination ..............................................
20
17.3 Attornment .................................................
20
18. MISCELLANEOUS
..................................................... 20
18.1 General ....................................................
20
18.2 Signs ......................................................
21
18.3 Waiver .....................................................
21
18.4 Financial Statements .......................................
21
18.5 Limitation of Liability ....................................
22
18.6 Notices ....................................................
22
18.7 Brokerage Commission .......................................
22
18.8 Authorization ..............................................
22
18.9 Holding Over; Surrender ....................................
22
18.10 Join and Several ...........................................
23
18.11 Convenants and Conditions ..................................
23
18.12 Auctions ...................................................
23
18.13 Consents ...................................................
23
18.14 Force Majeure ..............................................
23
18.15 Mortgage Protection ........................................
23
18.16 Hazardous Substance Disclosure .............................
24
18.17 ADA Compliance .............................................
24
18.18 Addenda ....................................................
24
</TABLE>
(vi)
<PAGE>
1. PREMISES
1.1 Premises. Landlord hereby leases to Tenant that portion of the
Building
as shown on Exhibit A-2 attached hereto (the "Premises"), but
excluding the
Common Area (defined below) and any other portion of the Building,
the Land
and/or the Project. Tenant has determined that the Premises are
acceptable for
Tenant's use and Tenant acknowledges that, except as set forth in
the Work
Letter attached hereto as Exhibit B (the "Work Letter"), neither
Landlord nor
any broker or agent has made any representations or warranties in
connection
with the physical condition of the Premises or their fitness for
Tenant's use
upon which Tenant has relied directly or indirectly for any
purpose. By taking
possession of the Premises, Tenant accepts the Premises "AS-IS" and
waives all
claims of defect in the Premises, except as set forth herein or in
the Work
Letter. Tenant shall be responsible for confirming the street
address of
Premises with the City.
1.2 Common Area. Tenant may, subject to rules made by Landlord, use
the
following areas on the Land or within the Building ("Building
Common Area") in
common with Landlord and other tenants of the Building: hallways,
stairwells,
entranceways, restroom facilities, refuse facilities, landscaped
areas,
driveways necessary for access to the Premises, parking spaces and
other common
facilities located in the Building and/or on the Land designated by
Landlord
from time to time for the common use of all tenants of the
Building. Tenant may,
subject to the CC&Rs (as defined in Section 11 below) and any
rules or
regulations made by Landlord, use the following areas of the
Project ("Project
Common Area") in common with Landlord, tenants of the Building
and/or other
owners or lawful users of the Project: refuse facilities,
landscaped areas,
roads, driveways necessary for access to the Premises, parking
spaces, retention
basins and other common facilities designated by Landlord from time
to time for
the common use of all tenants and owners of the Project. The
Building Common
Area and the Project Common Area are collectively referred to
herein as the
"Common Area".
1.3 Reserved Rights. Landlord reserves the right to enter the
Premises for
any reason upon reasonable notice to Tenant (or without notice in
case of an
emergency) and/or to undertake the following all without abatement
of rent or
liability to Tenant: inspect the Premises and/or the performance by
Tenant of
the terms and conditions hereof; make such alterations, repairs,
improvements or
additions to the Premises as required or permitted hereunder;
change boundary
lines of the Land so long as such change does not materially and
adversely
impact Tenant's use of the parking area and/or access to the
Premises; install,
use, maintain, repair, alter, relocate or replace any pipes, ducts,
conduits,
wires, equipment and other facilities (including, without
limitation, cabling
and conduit for telecommunications facilities of any kind) in the
Common Area or
the Building; install, maintain and operate conduit cabling within
the utility
and/or conduit ducts and risers within the Building, as well as,
grant lease,
license or use rights to third parties, to utilize the foregoing
grant easements
or licenses on the Land and/or the Project; dedicate for public use
portions of
the Land and/or the Project and record covenants, conditions and
restrictions
affecting the Land and/or the Project and/or amendments to existing
CC&Rs (as
defined below in Section 11 below) which do not unreasonably
interfere with
Tenant's use of the Premises or impose additional material monetary
obligations
on Tenant; change the name of the Building and/or the Project;
affix reasonable
signs and displays on the Building and/or the Land; and, during the
last six (6)
months of the Term, place signs for the rental of, and show the
Premises to
prospective tenants.
1.4 Parking. So long as this Lease is in effect and provided Tenant
is not
in default hereunder, Landlord grants to Tenant and Tenant's
customers,
suppliers, employees and invitees ("Tenant's Authorized Users") a
non-exclusive
license to use up to forty-eight (48) parking spaces in the areas
designated by
Landlord as parking facilities for the Building. All visitor
parking will be on
a non-exclusive, in common basis with all other visitors and guests
of the
Project Tenant will not use or allow any of Tenant's Authorized
Users to use any
parking spaces which have been specifically assigned by Landlord
for other uses
such as visitor parking or which have been designated by any
governmental entity
as being restricted to certain uses. Landlord may assign any
unreserved and
unassigned parking spaces and/or make all or any portion of such
spaces
reserved, if Landlord reasonably determines that it is necessary
for orderly and
efficient parking or for any other reasonable reason. Tenant and
Tenant's
Authorized Users shall comply with all rules and regulations
regarding parking
set forth in Exhibit F attached hereto and Tenant agrees to cause
Tenant's
Authorized Users to comply with such rules and regulations.
Landlord reserves
the right from time to time to modify and/or adopt such other
reasonable and
non-discriminatory rules and regulations for the parking facilities
as it deems
reasonably necessary for the operation of the parking facilities,
but in no
event shall Landlord be entitled to charge fees for parking without
the prior
written consent of Tenant, which is not to be unreasonably withheld
or delayed.
Tenant may, at Tenant's sole cost and expense,
<PAGE>
provide for the striping of additional parking spaces in the paved
areas
adjacent to Tenant's loading docks and the fifty foot (50') wide
concrete dock
apron, provided that (i) the addition of such spaces in the loading
dock and
apron areas is in compliance with all applicable laws and (ii) any
and all costs
associated with providing such parking spaces in the loading dock
areas shall be
at Tenant's sole cost and expense, including, without limitation,
any
landscaping requirements imposed by the City.
2. TERM
2.1 Commencement Date. The Term of the Lease shall commence
("Commencement
Date") on January 1, 2001; provided, however, Tenant's obligation
to pay Rent
(as defined in Section 3.1 below) shall commence on December 15,
2000 (the
"Possession Date"). Rent shall be paid for the period between the
Possession
Date and the Commencement Date (e.g., December 15 to January 1,
2001) at the
rate stated in the Basic Lease Information, prorated on the basis
of a thirty
(30) day month, and shall be due and payable to Landlord on or
before the
Possession Date. Concurrently with the execution of this Lease,
Tenant shall
execute and deliver to Landlord the Commencement Date Memorandum
attached hereto
as Exhibit C acknowledging (i) the Commencement Date, (ii) the
Possession Date,
and (iii) the final square footage of the Premises.
2.2 Intentionally Deleted
2.3 Early Entry. Subject to the following provisions of this
Section 2.3,
Tenant shall have the right to enter the Premises no earlier than
fifteen (15)
days prior to the Possession Date to install phone systems,
furniture, fixtures
and equipment, etc. and such early entry for such purposes shall
not constitute
occupancy for operation of Tenant's business and shall not trigger
the
Possession Date or the Commencement Date. Tenant agrees (i) any
such early entry
by Tenant shall be at Tenant's sole risk, (ii) Tenant shall not
interfere with
Landlord or Landlord's contractors completing work within the
Premises or cause
any labor difficulties; Tenant, together with its employees, agents
and
independent contractors will be subject to and will work under the
direction of
Landlord's contractor, (iii) Tenant shall comply with and be bound
by all
provisions of this Lease during the period of any such early entry
except for
the payment of Rent, (iv) prior to entry upon the Premises by
Tenant, Tenant
agrees to pay for and provide to Landlord certificates evidencing
the existence
and amounts of liability insurance carried by Tenant, which
coverage must comply
with the provisions of this Lease relating to insurance, (v) Tenant
and its
agents and contractors agree to comply with all applicable laws,
regulations,
permits and other approvals required to perform its work during the
early entry
on the Premises, and (vi) Tenant agrees to indemnify, protect,
defend and save
Landlord and the Premises harmless from and against any and all
liens,
liabilities, losses, damages, costs, expenses, demands, actions,
causes of
action and claims (including, without limitation, attorneys' fees
and legal
costs) arising out of the early entry, use, construction, or
occupancy of the
Premises by Tenant or its agents, employees or contractors.
3. RENT
3.1 Rent. Tenant shall pay to Landlord, at Landlord's Address for
Payment
of Rent designated in the Basic Lease Information, or at such other
address as
Landlord may from time to time designate in writing to Tenant for
the payment of
Rent, the Base Rent, without notice, demand, offset or deduction,
in advance, on
the first day of each calendar month. Landlord shall have no
obligation to
notify Tenant of any increase in Rent and Tenant's obligation to
pay all Rent
(and any increases) when due shall not be modified or altered by
such lack of
notice from Landlord. It is intended that this Lease be a "triple
net lease,"
and that the Rent to be paid hereunder by Tenant will be received
by Landlord
without any deduction or offset whatsoever by Tenant, foreseeable
or
unforeseeable. Except as expressly provided to the contrary in this
Lease,
Landlord shall not be required to make any expenditure, incur any
obligation, or
incur any liability of any kind whatsoever in connection with this
Lease or the
ownership, construction, maintenance, operation or repair of the
Premises or the
Project Upon the execution of this Lease, Tenant shall pay to
Landlord the first
month's Base Rent. If the Term commences (or ends) on a date other
than the
first (or last) day of a month, Base Rent shall be prorated on the
basis of a
thirty (30) day month. All sums other than Base Rent which Tenant
is obligated
to pay under this Lease shall be deemed to be additional rent due
hereunder
("Additional Rent"), whether or not such sums are designated
Additional Rent
and, together with the Base Rent, shall be due and payable to
Landlord
commencing on the Possession Date. The term "Rent" means the Base
Rent and all
Additional Rent payable hereunder.
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<PAGE>
3.2 Late Charge and Interest. The late payment of any Rent will
cause
Landlord to incur additional costs, including administration and
collection
costs and processing and accounting expenses and increased debt
service
("Delinquency Costs"). If Landlord has not received any installment
of Rent
within five (5) days after such amount is due, Tenant shall pay a
late charge of
five percent (5%) of the delinquent amount, which is agreed to
represent a
reasonable estimate of the Delinquency Costs incurred by Landlord.
In addition,
all such delinquent amounts shall bear interest from the date such
amount was
due until paid in full at a rate per annum ("Applicable Interest
Rate") equal to
the lesser of (a) the maximum interest rate permitted by law or (b)
five
percent (5%) above the rate publicly announced by Bank of America,
N.A. (or if
Bank of America, N.A. ceases to exist, the largest bank then
headquartered in
the State of California) ("Bank") as its "Reference Rate". If the
use of the
announced Reference Rate is discontinued by the Bank, then the term
Reference
Rate shall mean the announced rate charged by the Bank which is,
from time to
time, substituted for the Reference Rate. Landlord and Tenant
recognize that the
damage which Landlord shall suffer as a result of Tenant's failure
to pay such
amounts is difficult to ascertain and said late charge and interest
are the best
estimate of the damage which Landlord shall suffer in the event of
late payment.
If a late charge becomes payable for any three (3) installments of
Rent within
any twelve (12) month period, then the Rent shall automatically
become due and
payable quarterly in advance.
3.3 Letter of Credit
3.3.1 Form of Letter of Credit. Concurrently with Tenant's
execution
and delivery of this Lease, Tenant shall deliver to Landlord an
unconditional,
irrevocable, standby letter of credit (the "Letter of Credit") with
an
expiration date no earlier than twelve (12) months from the date of
issuance in
the amount of Ninety Eight Thousand Three Hundred Ninety Four and
No/100 Dollars
($98,394.00). The Letter of Credit shall be in the same form as
Exhibit K
attached hereto. The Letter of Credit shall secure the full and
faithful
performance of each provision of this Lease to be performed by
Tenant. The
Letter of Credit shall be issued by a money-center bank, or another
financial
institution acceptable to Landlord in its sole discretion. The
Letter of Credit
must be presentable in San Francisco, California. If Tenant fails
to pay Rent or
otherwise defaults with respect to any provision of this Lease and
fails to cure
any such default within any applicable notice and cure period
provided in this
Lease, then Landlord may execute one or more drafts on the Letter
of Credit for
the payment of any Rent, or for the payment of any other sum for
which Landlord
may become obligated by reason of Tenant's default, or for any
payment to which
Landlord may become entitled by reason of Tenant's default, or for
payment to
Landlord for any loss or damage which Landlord may suffer thereby.
The Letter of
Credit shall contain language allowing Landlord to draw upon the
Letter of
Credit upon presentation to the issuer of the Letter of Credit of
Landlord's
written statement that Landlord is entitled to the funds
represented by such
Letter of Credit in accordance with the terms hereof. If Landlord
so uses or
applies all or any portion of the amount represented by the Letter
of Credit,
then Tenant shall, within ten (10) days after written demand
therefor, at
Landlord's sole option, (i) deposit cash with Landlord in lieu of
the Letter of
Credit in the amount drawn, or (ii) deliver a replacement letter of
credit in
the amount drawn so that the total amounts represented by the
Letter of Credit
and the replacement letter of credit equals Ninety Eight Thousand
Three Hundred
Ninety Four and No/100 Dollars ($98,394.00), and Tenant's failure
to do so shall
be an Event of Default
3.3.2 Annual Renewals. The Letter of Credit shall provide for
automatic annual renewals throughout the Term of this Lease unless,
at least
sixty (60) days prior to any such date of expiration, the issuing
bank shall
have given written notice to Landlord, by certified mail, return
receipt
requested and at the Landlord's Address stated in the Basic Lease
Information or
such other address as Landlord shall have given to the issuing
bank, that the
Letter of Credit will not be renewed. Tenant shall, no later than
thirty (30)
days prior to the expiration of the Letter of Credit or any
replacement or
renewal thereof, deliver a new Letter of Credit substantially in
the same form
as the then existing Letter of Credit except that the expiration
date set forth
in such new Letter of Credit shall not be earlier than twelve (12)
months after
the expiration date set forth in the Letter of Credit which is then
being
replaced, and the issuer may be changed by Tenant to a financial
institution
acceptable to Landlord in its sole discretion. If Tenant fails to
deliver a new
Letter of Credit as required herein, then Landlord shall have the
right, at its
sole option, to draw upon and present the then existing Letter of
Credit for the
entire amount available thereunder. Until such time as Tenant shall
thereafter
deliver a new Letter of Credit in the form and substance required
hereunder,
Landlord shall retain possession of the funds so drawn as a
security deposit to
secure Tenant's obligations under this Lease. Any such replacement
Letter of
Credit shall satisfy and be subject to the provisions set forth in
subparagraph
(a) above. Should the Letter of Credit then in effect be revoked or
should the
creditworthiness of the issuer of the Letter of Credit then in
effect become
impaired (in Landlord's sole judgment), then Tenant shall deliver a
replacement
Letter of Credit in the form and substance required hereunder.
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<PAGE>
3.3.3 Changes. If the Permitted Use is amended (in Landlord's sole
and
absolute discretion) to accommodate a change in the business of
Tenant or to
accommodate a subtenant or assignee approved by Landlord, Landlord
shall have
the right to increase the amount of the Letter of Credit to the
extent
necessary, in Landlord's reasonable judgment, to account for any
increased risk
to the Premises or increased wear and tear that the Premises may
suffer as a
result thereof. If a change in control of Tenant occurs during this
Lease and
following such change the financial condition of Tenant is, in
Landlord's
reasonable judgment, reduced, Tenant shall cause the amount of the
Letter of
Credit to be increased to an amount reasonably determined by
Landlord based on
said change in financial condition.
3.3.4 Return of Letter of Credit. After Tenant vacates the
Premises,
upon the expiration or sooner termination of this Lease, if Tenant
is not then
in default or breach of any provision of this Lease, Landlord shall
return to
Tenant the Letter of Credit and any unapplied cash balance of the
Letter of
Credit that bad been previously drawn upon.
4. UTILITIES. Tenant shall pay all charges for heat, water, gas,
electricity,
telephone and any other utilities used on or provided to the
Premises. Landlord
shall not be liable to Tenant for interruption in or curtailment of
any utility
service, nor shall any such interruption or curtailment constitute
constructive
eviction or grounds for rental abatement. In the event the Premises
is not
separately metered, Tenant shall have the option, subject to
Landlord's prior
written consent and the terms of this Lease, to cause the Premises
to be
separately metered at Tenant's cost and expense. If Tenant does not
elect to
cause the Premises to be separately metered, Tenant shall pay a
reasonable
proration of utilities, as determined by Landlord. Notwithstanding
any provision
to the contrary contained in this Lease, in no event shall Tenant
use or be
entitled to use more than 3,000 amps of power within the
Premises.
Notwithstanding any provision of this Lease to the contrary,
Landlord shall be
under no obligation to provide or cause to be provided any
electrical service to
the Premises prior to the Commencement Date.
5. TAXES
5.1 Real Property Taxes. Tenant shall pay to Landlord Tenant's
Share of
Real Property Taxes (as defined in Section 5.2) as a part of
Operating Expenses
for each full or partial calendar year during the Lease Term in
accordance with
the terms and provisions of Section 7.1 below.
5.2 Definition of Real Property Taxes. "Real Property Taxes" shall
be the
sum of the following: all real property taxes, assessments,
supplementary taxes,
escape taxes, possessory-interest taxes, business or license taxes
or fees,
service payments in lieu of such taxes or fees, annual or periodic
license or
use fees, excises, transit and traffic charges, housing fund
assessments, open
space charges, childcare fees, school, sewer and parking fees or
any other
assessments, levies, fees, exactions or charges, general and
special, ordinary
and extraordinary, unforeseen as well as foreseen (including fees
"in-lieu" of
any such tax or assessment) which are assessed, levied, charged,
conferred or
imposed by any public authority upon the Land, the Building or any
other
improvements located on the Land and/or Project (or any real
property comprising
any portion thereof) or its operations, together with all taxes,
assessments or
other fees imposed by any public authority upon or measured by any
Rent or other
charges payable hereunder, including any gross receipts tax or
excise tax levied
by any governmental authority with respect to receipt of rental
income, or upon,
with respect to or by reason of the possession, leasing, operation,
management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or
any portion thereof, or documentary transfer taxes upon this
transaction or any
document to which Tenant is a party creating or transferring an
interest in the
Premises, together with any tax imposed in substitution, partially
or totally,
of any tax previously included within the aforesaid definition or
any additional
tax the nature of which was previously included within the
aforesaid definition,
together with any and all costs and expenses (including, without
limitation,
attorneys', administrative and expert witness fees and costs) of
challenging any
of the foregoing or seeking the reduction in or abatement,
redemption or return
of any of the foregoing, but only to the extent of any such
reduction,
abatement, redemption or return. All references to Real Property
Taxes during a
particular year shall be deemed to refer to taxes accrued during
such year,
including supplemental tax bills regardless of when they are
actually assessed
and without regard to when such taxes are payable. Real Property
Taxes shall
expressly include One Hundred Percent (100%) of any increase or
supplemental
assessments accruing as a result of the construction of the
Building, or any
other improvements located on the Land. In addition to Tenant's
Share of Real
Property Taxes (paid as a part of Operating Expenses), Tenant shall
pay to
Landlord One Hundred Percent (100%) of any increase in the assessed
value of the
Land directly attributable to the value of any Tenant Improvements
(as defined
in the Work Letter, if
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<PAGE>
any). The obligation of Tenant to pay Real Property Taxes
(including any
supplemental taxes) for the last full and/or partial year(s) of the
Term shall
survive the expiration or early termination of this Lease. In no
event shall
Tenant or any Tenant Party (as defined in Section 12.1) be entitled
to file any
property tax assessment appeal; provided, however, Tenant may
appeal any
personal property taxes assessed on personal property which (x) is
owned by
Tenant, (y) is not affixed to any portion of the Premises and (z)
is not deemed
to be a fixture under the laws of the State of Oregon. Nothing
contained in this
Lease shall require Tenant to pay any franchise, corporate, estate
or
inheritance tax of Landlord, or any income, profits or revenue tax
or charge
upon the net income of Landlord. Subject to the terms of this
Section 5.2, Real
Property Taxes for partial years, if any, falling within the Term
shall be
prorated.
5.3 Personal Property Taxes. Prior to delinquency, Tenant shall pay
all
taxes and assessments levied upon trade fixtures, alterations,
additions,
improvements, inventories and other personal property located
and/or installed
on the Premises by Tenant; and Tenant shall provide Landlord copies
of receipts
for payment of all such taxes and assessments. To the extent any
such taxes are
not separately assessed or billed to Tenant, Tenant shall pay the
amount thereof
as invoiced by Landlord.
6. OPERATING EXPENSES
6.1 Operating Expenses. Tenant shall pay to Landlord Tenant's Share
of the
Building Operating Expenses and Tenant's Share of Project Operating
Expenses for
each full or partial calendar year during the Lease Term, as
provided in Section
7.1 below.
6.2 Definition of Operating Expenses. "Operating Expenses" shall
mean
collectively the "Building Operating Expenses" and the "Project
Operating
Expenses" as defined in this Section 6.2.
6.2.1 "Building Operating Expenses" means the total costs and
expenses
incurred by Landlord in the ownership, operation, maintenance,
repair and
management of the Building, the Land and/or the Building Common
Area, including,
but not limited to: (a) repair, replacement, maintenance, utility
costs and
landscaping o
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