Commercial Lease of premises at 1266 SW Lake Blvd, Redmond, OR
Exhibit 10.11
COMMERCIAL LEASE SUMMARY
EFFECTIVE DATE: LANDLORD:
January 1, 2022
CHARRON PROPERTIES INCORPORATED, A California
Corporation
TENANT:
PREMISES:
YOZAMP PRODUCTS COMPANY, LLC, an Oregon limited liability company, dba Expion 360 Corporation
1266 SW Lake Blvd, Redmond, Oregon, 97756
COMMENCEMENT DATE (Section 1.3): January 1, 2022
LEASE TERM (Section 1.1): 7 years
INITIAL BASE RENT (Section 2.1): Months 1-12@ $31,425.00 per month+
NNN and any excess TI over $100,000.00 to be repaid and amortized over 12 months starting January 1, 2022.
SECURITY DEPOSIT PAID (Section 2.4): $31,425.00 Due in Two Payments;
November 1, 2021 =$15,712.50; December
1, 2021 = $16,712.50
PAYMENT ADDRESS: Charron Properties Inc.
6930 Fairview Road
Hollister, CA 95023
RENEWAL OPTIONS: One (1) term of three (3) years
LATE FEE/INTEREST (Sections 2.6 and 17.7): 5% of the amount if Rent (or any other
payment) is not received by Landlord within 5 days after it is due; plus interest at the Default Rate from the due date until paid.
PERMITTED USES (Section 3.1): Manufacturing solar panels and batteries,
distribution, and related office uses.
This summary is not intended to replace the terms of the lease. If there is a conflict between this summary and the lease, the lease shall control. The submission of this lease for examination does not constitute an option or offer to lease space. This lease shall have no binding effect on the parties unless executed by both Landlord and Tenant.
COMMERCIAL LEASE
EFFECTIVE DATE:
PARTIES:
January 1, 2022
CHARRON PROPERTIES INCORPORATED, ("Landlord")
A California Corporation
6930 Fairview Road
Hollister, CA 95023
AND: YOZAMP PRODUCTS COMPANY, LLC, an
Oregon limited liability company
dba Expion360 Corporation
1266 SW Lake Blvd Redmond, OR 97756
("Tenant")
RECITALS
A. Landlord is the owner of real property on 2.99 Acres described as follows: two industrial commercial buildings of approximately 31,425 square foot (building A-16,350 square feet Industrial/office and building B-15,075 square feet industrial); building C-2,345 square feet dry storage; and a covered storage structure; commonly known as 1266 SW Lake Road, Redmond, OR 97756, Deschutes County, Oregon (the "Building"). For purposes of this Lease, the term "Premises" means the Building, and all pieces or parcels of real property (and any improvements located thereon) underlying the Building, all as legally described on the attached Exhibit A.
B. By the execution of this Commercial Lease (this "Lease"), Landlord leases to Tenant and Tenant leases from Landlord the Premises subject to these terms and conditions contained herein.
C. Lease Contingency. Notwithstanding that Landlord may execute this Lease, this Lease shall be contingent upon Landlord's close of escrow and taking title of the Premises.
AGREEMENT
| 1. | Occupancy |
| 1.1 | Term. The Term and Tenant's obligation to pay Rent (as defined below) shall |
commence on the Commencement Date (defined below), and shall continue, subject to the terms and conditions provided in this Lease, until the last day of the month that is 84 full calendar months after the Commencement Date (the "Term"), unless sooner terminated as provided in this Lease. For purposes of this Lease, the "Term" means the initial 84-month Lease Term and any extensions or renewals thereof.
1.2 Effective Date. Landlord and Tenant agree and acknowledge that they shall be bound in accordance with the terms of this Lease from and after the date of the parties' mutual execution of this Lease (the "Effective Date"). Landlord and Tenant agree and acknowledge that, except as stated in this Lease, including, without limitation, the Work Agreement attached as Exhibit B, there are no preconditions to the effectiveness of this Lease or the performance of its terms.
1.3 Commencement Date and Possession. Prior to the Commencement Date, Landlord shall complete the improvements to the Premises described in the Work Letter Agreement, attached as Exhibit B (the "Tenant Improvements"). The Lease Term and Tenant's right of possession shall commence upon substantial completion of the Tenant Improvements and on the date that the Premises and the Building are otherwise in the Delivery Condition (as defined in the Work Letter Agreement) and the Premises are made available to Tenant for occupancy (the "Commencement Date").
1.4 Parkin&: Area. The Premises has a parking area consisting of unassigned, on-site parking spaces (including ADA accessible space(s) and drive aisles (the "Parking Area"). Landlord shall not be liable for any damage or destruction of any nature to, or any theft of, vehicles, or contents therein, in or about the Parking Area.
1.5 Renewal Option. If Tenant is not then in default under this Lease beyond applicable notice and cure periods, Tenant shall have the option (the "Extension Option") to extend the Lease Term for one (1) term of three (3) years. Tenant shall exercise the Extension Option by providing Landlord written notice (the "Extension Notice") not less than 180 days prior to the last day of the Term. Giving the Extension Notice shall be sufficient to make this Lease binding for one (1) additional term of three (3) years without further act of the parties. The renewal term shall commence on the day immediately following the expiration of the Term. The terms and conditions for the renewal term shall be identical with the initial Term except for Base Rent (defined below). Base Rent for the renewal term shall be as provided in Section 2.7, below.
1.6 Tenant's Excess TI Payment. Following the Commencement Date, and subject to the other provisions of this Lease, Tenant shall pay Tenant's Excess TI Payment to Landlord, if any, as Additional Rent, as provided in the Work Letter Agreement. The initial amount of Tenant's Excess TI Payment will be memorialized on the Commencement Date, or as seen thereafter as reasonably possible.
| 2. | Rent, Deposit, Taxes, Fees, and Charges |
2.1 Base Rent. During the first twelve (12) months of the Term, Tenant shall pay Landlord guaranteed base monthly rent, without offset, of $31,425.00 ("Base Rent"), calculated by multiplying the approximate leasable area of the Premises by $1 per square foot, per month. Base Rent due for any partial month in which the Commencement Date occurs shall be paid in advance and shall be prorated based upon the number of days in the month. Beginning on the first anniversary of the Commencement Date, and thereafter on each anniversary of that date during the Term, Base Rent shall escalate by three percent (3%) over the Base Rent payable during the preceding 12-month period.
2.2 Rent Due Date. Rent shall be due and payable to Landlord, without any deduction or offset whatsoever, commencing on the Commencement Date. Rent shall be due and payable on or before the first day of each subsequent month, in advance and without notice or invoice to Tenant, at such place as may be designated by Landlord, except that rent for the first and last months has been paid on execution of this Lease, and Landlord acknowledges receipt of this sum. On the Commencement Date, Tenant shall pay Landlord a prorated amount of Base Rent and Operating Expenses for the remainder of the month in which the Commencement Date occurs.
2.3 Additional Rent. All taxes, insurance costs, utility charges (e.g., electricity, telephone, etc.), Operating Expenses (as defined below), Tenant's Excess TI Payment, and any other sums Tenant is required to pay to Landlord or any third party shall be deemed "Additional Rent." For purposes of this Lease, "Rent" shall mean both Base Rent and Additional Rent.
| 2.4 | Security Deposit. Tenant shall pay to Landlord the sum of $31,425.00 (the |
"Security Deposit") in two payments; November 1, 2021 =$15,712.50 and December 1, 2021 =
$16.712.50, which amount shall secure Tenant's compliance and performance of each and every term and obligation of Tenant under this Lease. Landlord may commingle the Security Deposit with its funds and Tenant shall not be entitled to interest on the Security Deposit. Landlord shall have the right to offset against the Security Deposit any sums owing from Tenant to Landlord not paid when due, any damages caused by Tenant's default, the cost of curing any default by Tenant, should Landlord elect to do so, and the cost of performing any repair or cleanup that is Tenant's obligation under this Lease. Offset against the Security Deposit shall not be Landlord's exclusive remedy under this Lease but may be invoked by Landlord, at Landlord's option, in addition to any other remedy provided by law or this Lease for Tenant's breach or nonperformance of any tem1 or condition contained in this Lease. Landlord shall give notice to Tenant each time an offset is claimed against the Security Deposit and unless this Lease is terminated, Tenant shall, within 10 days following Tenant's receipt of such notice, deposit with Landlord a sum equal to the amount of the offset so that the balance of the Security Deposit shall remain constant throughout the Term.
2.5 Tenant's Obligation for Operating Expenses. Tenant shall pay or reimburse Landlord for all Operating Expenses (as defined below) attributable to the Premises.
(a) Operating Expenses. Except as otherwise provided in this Lease, "Operating Expenses" shall mean any and all costs and expenses paid or incurred by Landlord (or on Landlord's behalf) necessary or appropriate, as reasonably determined by Landlord, for the effective and efficient operation, maintenance, or repair of the Premises including, without limitation, the following: (i) any and all real property taxes and related charges and assessments levied against the Premises pursuant to Section 7.1 below; (ii) the cost of property insurance for the Building and Premises pursuant to Section 6.1 below; (iii) costs and expenses of maintaining and repairing the Building and Premises allowed pursuant to Section 4.1 below; (iv) the annual amortization (amortized over the useful life but in no event less than 5 years) of costs incurred by Landlord after the Commencement Date for any improvements, replacements, or equipment installed or paid for by Landlord (or on Landlord's behalf), including, without limitation, upgrades to the Building or Premises required by any new (or changes in) the Legal Requirements enacted after the Commencement Date; (v) all other charges, costs, or expenses commonly incurred by landlords of comparable buildings for the operation, repair, and maintenance of the Building, including personnel costs and expenses; and (vi) any other charges identified as Operating Expenses in this Lease. Operating Expenses shall also include any utilities and services that the parties mutually agree are to be provided by Landlord.
(b) Operating Expense Exclusions. Except as otherwise provided in this Lease, Operating Expenses shall not, without limitation, include: (i) depreciation or amortization (except as otherwise provided in Section 2.S(a)); (ii) interest on and amortization of debts; (iii) refinancing costs; (iv) damages recoverable by Tenant due to violation by Landlord of any of the terms and conditions of this Lease; (v) repairs occasioned by fire, windstorm, or other casualty or structural defect; (vi) leasing commissions and any other costs incurred in marketing or leasing the property, including, without lin1itation, legal, accounting and other professional fees, incurred in connection with lease negotiations, disputes and other transactions with individual present or prospective tenants; (vii) ground rent; (viii) costs incurred in connection with upgrading the Premises to comply with any Legal Requirements in effect prior to, and the interpretation of said Legal Requirements as of, the Commencement Date, including penalties or damages incurred due to such noncompliance; (ix) costs and expenses of repairs and replacements, which, in accordance with generally accepted accounting principles, should be classified as capital expenditures (except for the amortization of such items permitted by Section 2.5(a)); and (x) any other expenses which, in accordance with generally accepted accounting principles, would not normally be treated as a normal maintenance or Operating Expenses by comparable landlords in comparable buildings. Operating Expenses shall not include any item to the extent paid directly by Tenant.
(c) Written Statement of Estimate. Landlord will furnish Tenant with a written estimate of the Operating Expenses to be paid by Landlord for the forthcoming calendar year on or before March 31st of each calendar year. On the first day of each calendar month, Tenant will pay one-twelfth (1/12) of the Operating Expenses shown on Landlord's written estimate. The late delivery of any written estimate by Landlord will not relieve Tenant of its obligation to make estimated payments for Operating Expenses. If Landlord delivers the written statement late, Tenant will continue to pay Landlord the monthly amount of estimated Operating Expenses for the immediately preceding lease year until Landlord furnishes the written estimate, at which time any deficiency for the expired portion of the current lease year (based on Tenant's actual payments during such time) will be paid by Tenant in equal installments as Additional Rent over the remainder of the current lease year; any excess payments made by Tenant will, at Tenant's option, be credited to the next due payment of Rent from Tenant or refunded to Tenant. Tenant's estimated Operating Expenses for the remainder of the first calendar year of the initial Term is $200.00 per month. Tenant's estimated Operating Expense payment does not include separately-metered utility charges paid directly by Tenant.
(d) Accounting. On or before April 1st of each year, Landlord will complete an accounting of the Operating Expenses included in Additional Rent during the prior calendar year. If Landlord's accounting determines that Tenant has paid less than the Operating Expenses incurred by Landlord during the preceding calendar year, Tenant will pay to Landlord the balance of its proportionate share of the Operating Expenses within thirty (30) days of Tenant's receipt of notice from Landlord. If Landlord's accounting determines that Tenant has paid more than its proportionate share of the Operating Expenses during the preceding calendar year, Landlord shall, at Tenant's option, provide Tenant a credit in the amount of Tenant's overpayment against Rent next coming due or pay a refund to Tenant in the amount of the overpayment. Landlord's accounting referred to herein need not be audited but must contain sufficient detail to enable Tenant to verify the calculation of the Operating Expenses.
(e) Disputes. Each accounting provided by Landlord pursuant to Section 2.5(d) shall be conclusive and binding upon Tenant unless, within one-hundred eighty (180) days after Tenant's receipt of such accounting, Tenant notifies Landlord that it disputes the correctness of the accounting, specifying the particular respects in which the accounting is claimed to be incorrect. If such disputes shall not have been settled by agreement, either party, within sixty
(60) days after Tenant's receipt of such accounting, may pursue its available legal remedies; provided, however, Tenant hereby agrees that the dispute over the accounting, any error by Landlord in interpreting or applying the provisions of this Lease regarding Operating Expenses, or in calculating the amounts in the accounting, shall not constitute a breach of this Lease by Landlord and even if any legal proceeding over the accounting is resolved against Landlord, this Lease shall remain in full force and effect and Landlord shall not be liable for any consequential damages. Pending the determination of such dispute, Tenant shall, within ten (10) days of receipt of such accounting, pay Additional Rent in accordance with the accounting, without prejudice to Tenant's position. If the dispute shall be determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment of Rent resulting from compliance with the accounting. If any examination, audit or dispute by Tenant reveals that Tenant was overcharged by five percent (5%) or more, Landlord shall reimburse Tenant for its reasonable cost of audit or dispute.
2.6 Late Fee on Rent and Other Charges. If Rent (or other payment due from Tenant) is not received by Landlord within ten (5) days after it is due, Tenant shall pay a late fee equal to five percent (5%) of the past due payment (the "Late Fee"). Subject to the terms and conditions of this Lease, Landlord may levy and collect the Late Fee in addition to all other remedies available for Tenant's failure to pay Rent (or other payment due from Tenant). All Late Fees shall be payable as Additional Rent. Additionally, all such delinquent Rent or other sums, plus the Late Fee, shall accrue interest at the Default Rate (as defined below), from the date first due until the date paid in full. Any payments of any kind returned for insufficient funds will be subject to an additional handling charge of $50.00 and, in the event more than two payments of any kind are returned for insufficient funds in any 12-month period, Landlord may require Tenant to make all future payments by cashier's check or other immediately collectible method.
2.7 Renewal Term Base Rent. If Tenant exercises an Extension Option, Base Rent for the first year of the renewal term will be the fair market rental rate for such renewal term, as mutually determined by Landlord and Tenant. If Landlord and Tenant are unable to agree on the fair market rental rate for the Premises, the fair market rental rate shall be determined by a qualified independent commercial real estate broker familiar with commercial rental values in Redmond, Oregon. Tenant shall choose the commercial real estate broker from a list of not fewer than three (3) qualified, independent commercial real estate brokers provided by Landlord. If Tenant shall fail to choose a commercial real estate broker from Landlord's list within ten (10) business days after receipt, Landlord may name any commercial real estate broker from Landlord's list. Within thirty (30) days of his or her appointment, the commercial real estate broker shall return his or her decision as to the fair market rental rate of the Premises, together with a discussion of the facts, considerations, and opinions on which the determination is based. The cost and expense of the commercial real estate broker shall be borne by the parties equally. The commercial real estate broker's determination of the fair market rental rate for the Premises will take into account the relative obligations of Landlord and Tenant pursuant to the terms of this Lease and shall be binding on Landlord and Tenant. Once the Base Rent for the renewal term has been established, Base Rent shall escalate on each anniversary of the Commencement Date, as provided in Section 2.1.
| 3. | Use Of The Premises |
3.1 Permitted Use. Tenant shall use the Premises for manufacture, storage and distribution of solar panels, related batteries, and related office uses (collectively, the "Business"), and for no other purpose without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Operation of the Business shall be subject to all Legal Requirements (as that term is defined in Section 3.2(a) below). If Tenant's permitted use is prohibited by Legal Requirements or any other applicable restrictions or rules affecting the Premises, Tenant shall have the option, on notice to Landlord, to terminate this Lease, and, in such event, all rights and obligations of the parties shall cease as of the date of termination. Tenant acknowledges and agrees that neither Landlord nor any of Landlord's members, managers, officers, sureties, agents, contractors, representatives, or employees (collectively, "Landlord's Agents") have made any warranties or representations, whether express or implied, concerning the permitted use that may be made of the Premises or the Building under any Legal Requirements, including the present comprehensive plan of the city or county in which the Premises are located, zoning ordinances, and any other existing or future restrictions that pertain to the Premises. For avoidance of any doubt and without limitation, Landlord is obligated to obtain a certificate of occupancy or temporary certificate of occupancy for the Premises prior to the Commencement Date (and to obtain a certificate of occupancy for the Premises prior to the expiration of any temporary certificate of occupancy), and neither the foregoing nor any other provision of this Lease excuses Landlord from Landlord's obligations to do so.
| 3.2 | Restrictions on Use. In connection with Tenant's use of the Premises, Tenant |
shall:
(a) Conform and comply with any and all Legal Requirements. Tenant shall correct, at Tenant's own expense, any failure of compliance created through Tenant's fault or by reason of Tenant's use of the Premises, but Tenant shall not be required to make any structural changes to effect such compliance. For purposes of this Lease, the term "Legal Requirements" means any and all applicable covenants, conditions, restrictions, easements, declarations, laws, statutes, ordinances, orders, codes, rules, and regulations of any public authority affecting the Building or the Business, including the Americans with Disabilities Act of I 990 (and the rules and regulations promulgated thereunder), and the Environmental Laws (defined below), all as now in force and as may hereafter be amended, modified, enacted, or promulgated.
(b) Refrain from any activity that would make it impossible to insure the Premises against casualty, would increase the insurance rate, or would prevent Landlord from taking advantage of any ruling of the Oregon Insurance Rating Bureau or its successor allowing Landlord to obtain reduced premium rates for long-term fire insurance policies, unless Tenant pays the additional costs of the insurance.
(c) Subject to noise and other matters typically associated with Tenant's use of the Premises permitted by Section 3.1 above, refrain from any use which would be reasonably offensive to Landlord or owners or users of neighboring property, or which would tend to create a nuisance or damage the reputation of the Premises.
(d) Refrain from loading the floors beyond the point considered safe by a competent engineer or architect selected by Landlord.
(e) Refrain from making any marks on or attaching any sign, insignia, antenna, aerial, or other device to the exterior or interior walls, windows, or roof of the Building (including the Premises) without the prior written consent of Landlord.
(t) Refrain from conducting any business involving the manufacture, distribution or sale of: (i) cannabis; or (ii) any other substance in violation of applicable federal or state law.
(g) Subject to Tenant's use of the Premises permitted by Section 3.1 above and Tenant's reasonable business needs, Tenant acknowledges and agrees that Landlord shall be permitted to adopt reasonable rules and regulations concerning use of the Premises and may reasonably amend such rules and regulations from time to time as Landlord determines. Any such adoption or amendment of permissible rules and regulations shall be effective 30 days after Landlord provides Tenant notice of such adoption or amendments.
| 3.3 | Hazardous Substances; Indemnification. |
(a) Tenant shall refrain from causing or permitting any Hazardous Substances (as defined below) to be spilled, leaked, disposed of, or otherwise released on or under the Premises. Without otherwise limiting the immediately preceding sentence, Tenant may use, store, or otherwise handle on the Premises only those Hazardous Substances typically used, stored, sold, or handled in the prudent and safe operation of the Business. Tenant shall comply with all Environmental Laws and shall exercise the highest degree of care in the use, handling, and storage of Hazardous Substances, and shall take all practicable measures to minimize the quantity and toxicity of Hazardous Substances used, handled, or stored on the Premises. Upon the earlier of the termination or expiration of this Lease, Tenant shall remove, at its sole cost and expense, all Hazardous Substances from the Premises placed or caused to be placed on the Premises by Tenant, its employees, agents, contractors or invitees. For purposes of this Lease, the term "Environmental Law(s)" shall mean any federal, state, or local statute, regulation, or ordinance, or any judicial or other governmental order pertaining to the protection of health, safety, or the environment. The term "Hazardous Substance(s)" shall mean any hazardous, toxic, infectious, or radioactive substance, waste, or material as defined or listed by any Environmental Law, and shall include petroleum oil and its fractions.
(b) Tenant shall indemnify, defend, and hold Landlord, Landlord's Agents, trustees, trustors, beneficiaries, and their successors, and assigns harmless for, from, and against any and all losses, costs, expenses, claims, and liabilities (including reasonable attorney fees and costs) resulting from or arising out of, whether directly or indirectly: (i) any breach of Tenant's obligations in Section 3(a) above; or (ii) any violation of any Environmental Law affecting the Building or any other portion of the Premises or the land beneath any of them to the extent resulting from the activities of Tenant or Tenant's agents, employees or invitees. Tenant assumes full responsibility for, and shall pay the entire cost to remedy: (1) any and all such breaches; (2) any and all such violations of Environmental Laws; (3) the existence or presence of any such Hazardous Materials to the extent resulting from the activities of Tenant or Tenant's agents, employees or invitees; and (4) the removal of any such Hazardous Materials; except to the extent such violation of Environmental Laws or presence of Hazardous Materials is caused by Landlord or Landlord's Agents. Tenant's indemnification obligations provided in this Section 3.3(b) shall survive the termination of this Lease and are in addition to, and not in limitation of, Tenant's other indemnity obligations under this Lease. Tenant agrees that it shall execute, at Landlord's request, all affidavits, representations, certifications and the like concerning Tenant's best knowledge and belief regarding Hazardous Substances and compliance with Environmental Laws.
(c) Landlord represents, warrants and covenants to Tenant that neither the Building nor any other portion of the Premises, nor the land beneath any of them, contains, or will contain (except to the extent caused by Tenant or any of Tenant's agents, employees or invitees) any Hazardous Substances or has been used in violation of any Environmental Laws.
(d) Landlord shall defend, indemnify and hold Tenant and Tenant's members, directors, officers, shareholders, sureties, agents, contractors, representatives, and employees, and their respective successors and assigns, harmless for, from and against any and all losses, costs, expenses, claims, and liabilities (including, without limitation, reasonable attorney fees and costs) resulting from or arising out of, whether directly or indirectly: (i) any breach of any representation, warranty or covenant of Landlord in Section 3.3(c) above; (ii) any violation of any Environmental Law affecting the Building or any other portion of the Premises or the land beneath any of them, except to the extent covered by Tenant's indemnity obligations under Section 3.3(b) above; or (iii) the existence or presence of any Hazardous Materials on or in the Building or any other portion of the Premises, or the land beneath any of them (except to the extent covered by Tenant's indemnity obligations under Section 3.3(b) above). Landlord assumes full responsibility for, and shall pay the entire cost to remedy: (1) any and all such breaches; (2) any and all such violations of Environmental Laws; (3) the existence or presence of any such Hazardous Materials; and (4) the removal of any such Hazardous Materials; except to the extent such violation of Environmental Laws or presence of Hazardous Materials is caused by Tenant or Tenant's agents, employees or invitees. Landlord's indemnification obligations provided in this Section 3.3(d) shall survive the termination of this Lease and are in addition to, and not in limitation of, Landlord's other indemnity obligations under this Lease. Landlord agrees that it shall execute, at Tenant's request, all affidavits, representations, certifications and the like concerning Landlord's best knowledge and belief regarding Hazardous Substances and compliance with Environmental Laws.
3.4 Safety Requirements. Tenant will conduct its operations, activities, and duties under this lease in a safe manner and in compliance with all safety standards imposed by applicable federal, state, and local laws and regulations. Tenant will require the observance of the foregoing by all subcontractors and all other persons transacting business with or for the Tenant in any way connected with the conduct of Tenant under this lease. Tenant will exercise due and reasonable care and caution to prevent and control fire on the Premises [and to that end will maintain fire suppression equipment within the Premises installed by Landlord] and provide and maintain other fire protection equipment as may be required under applicable governmental laws, ordinances, statutes, and codes for the pw-pose of protecting the improvements adequately and restricting the spread of any fire from the Premises to any property adjacent to the Premises, all at Tenant's sole cost and expense. Tenant will be solely responsible for provision and maintenance of fire extinguishers. [Tenant will also maintain sprinkler systems. Tenant will, however, promptly notify Landlord if Tenant observes any problems relating to the sprinkler system and will do nothing to damage or disable the sprinkler system or any smoke detectors located within the Premises.]
3.5 Labor Laws. Tenant must at all times, including during construction, comply with all applicable state and federal laws pertaining to wage and hour and health and safety regulations. Tenant will also comply with all its own collective bargaining requirements to avoid labor disturbances in the Premises. Tenant should promptly notify Landlord in the event of any threatened labor action. Tenant will also reasonably cooperate with any direction of Landlord to mitigate the impact of labor disturbance on access to the Landlord's adjacent property and operations within such property, regardless of the source of the labor dispute.
3.6 Security. Tenant is solely responsible for any and all its property located on the Premises or within the property in which the Premises is located. Tenant waives any claim against Landlord for any loss or damage to Tenant's property. Landlord will not be responsible for the actions of any third parties who may come onto the Premises.
3.7 Hand line of Trash. Tenant will be responsible for the adequate sanitary handling of all trash and other debris for the Premises and will provide for its timely removal to the holding area designated by Landlord. Tenant will gather, sort, and transport all garbage, refuse, and recyclable materials as needed from the Premises. Tenant will provide and use suitable fireproof receptacles for all trash and other refuse temporarily stored on the Premises. Tenant will not permit boxes, cartons, barrels, pallets, scrap piles, or other similar items to be piled or stored within view of the buildings surrounding the Premises unless otherwise approved, in writing, by Landlord. Tenant will not allow trash or debris of any nature to accumulate on the Premises and will store all trash and debris in a manner that will prevent it from being a health or safety hazard or creating an unsightly condition in and around the Premises.
3.8 Smoking Strictly Prohibited. Absolutely NO SMOKING or use of an open flame is permitted within the Premises or any prope11y of Landlord adjacent to the Premises, except inside of a person's vehicle. All cigarette butts or other lighted/burning materials must be fully extinguished and properly disposed of. Tenant shall post NO SMOKING signs in visible and reasonable locations on the Premises and adopt a written policy issued to Tenant's employees, contractors, invitees, and agents who will enter the Premises or any property of Landlord adjacent to the Premises. Tenant is solely responsible for enforcing this no-smoking policy.
| 4. | Repairs and Maintenance; Services |
4.1 Landlord's Obligations. The following repair and maintenance obligations will be Landlord's responsibility, and will, subject to the provisions of Section 2.5(b) and Section 8 below related to destruction, be included in Operating Expenses:
(a) Repair and maintenance of the Building's roof and gutters, exterior walls (including painting), bearing walls, structural members, and foundation.
(b) Repair and maintenance of exterior water, sewage, gas, and electrical services up to the point of entry to the Building.
| (c) | Repair and maintenance of sidewalks, driveways, curbs, and Parking Area. |
4.2 Tenant's Obligations. Subject to the provisions of Sections 2.5(a), 2.5(b) and 4.1 above, and Section 8 below related to destruction, Tenant will, at Tenant's cost and expense, maintain the Premises in good condition, repair, working order, and appearance, ordinary wear and tear excepted, and will not commit nor permit waste. To this end, Tenant has the following nonexclusive repair and maintenance obligations, which Tenant will complete at Tenant's cost and expense:
(a) Repair and maintain all interior walls, ceilings, doors, windows, and related hardware, light fixtures, switches, wiring, and plumbing from the point of entry to the Premises, including repainting of all interior walls of the Premises.
(b) Any repairs necessitated by the negligence of Tenant, its agents, employees, and invitees, except as provided in Section 6.3, below, dealing with waiver of subrogation.
(c) Maintenance of the heating ventilating and air conditioning (HVAC) equipment serving only the Premises. Tenant shall contract with a licensed HVAC contractor to maintain the HVAC system on a not less than quarterly basis, and shall provide Landlord with a copy of such contract. Notwithstanding the foregoing, Tenant shall be responsible for the replacement of the HVAC system and all appurtenances thereto or the major components thereof. Landlord shall be under no obligation to make any repairs, replacements, reconstruction, alterations or improvements to or upon the Premises or the mechanical equipment exclusively serving the Premises, except as expressly provided for in this Lease.
(d) Snow removal service for the Parking Area, Premises walkways, and, if necessary, the Building roof. Tenant shall not allow snow to be piled against the Building as a result of its snow-removal activities. Maintenance and repair of all landscaping areas on the Premises.
(e) All glass, both exterior and interior to the Premises, is at the sole risk of Tenant, and any broken glass shall be promptly replaced by Tenant with glass of the same size, kind, and quality.
| (f) | All Tenant signs on the exterior of the Premises including any monument |
sign.
(g) Subject to the provisions of Section 3.2, any repairs or alterations required under Tenant's obligation to comply with Legal Requirements as set forth in Section 3.2 above.
(h) All other maintenance of, or repairs to, the interior of the Premises that Landlord is not expressly required to make under this Lease.
| 4.3 | Reimbursement for Repairs and Maintenance Assumed. If either party fails or |
refuses to complete any repair or perform any maintenance that is required by this Section 4, the other party may make the repair or perform the maintenance and charge the actual costs of repair or maintenance to the first party. Such expenditures by either party shall be reimbursed by the non-performing party, on demand, together with interest at the Default Rate from the date of invoice until paid. Except in an emergency creating an immediate risk of personal injury or property damage, neither party may perform repairs or maintenance which are the obligation of the other party (and charge the other party for the resulting expense) unless, at least 30 days before work is commenced, the other party is given written notice outlining with reasonable particularity the repair or maintenance required, and such party fails within that time to initiate such repair or maintenance in good faith.
4.4 Utility and other Services. Tenant shall pay when due all charges for the following services and utilities for the Premises: (i) electrical and natural gas or propane services, (ii) janitorial services, (iii) hot and cold water and sanitary sewer service, (iv) garbage removal and recycling services, (v) snow removal (as provided in Section 4.2(d), (vi) telecommunications and fire monitoring services, and (vii) HVAC service. Tenant shall also be responsible for paying for such other services as Tenant requires for the operation of the Business.
4.5 Landlord's Interference with Tenant. In performing any repairs, replacements, alterations, or other work performed on or around the Premises, Landlord shall not cause unreasonable interference with use of the Premises by Tenant.
| 5. | Alterations |
5.1 Alterations Prohibited. Tenant shall make no additions, improvements, modifications, or alterations on or to the Premises of any kind or nature whatsoever, including the installation of any improvements, fixtures, or other devices on the roof of the Building or the installation of computer and telecommunications wiring, cables, and conduit (collectively, "Alterations") without first obtaining Landlord's written consent, which shall not be unreasonably withheld, and otherwise complying with any reasonable conditions imposed by Landlord including, without limitation, submitting plans for such Alterations for Landlord's review and approval. Alterations approved by Landlord shall be made in a good and workmanlike manner, in compliance with applicable Legal Requirements, and at Tenant's sole cost and expense. Tenant shall further be responsible for the cost and performance of any additional work on the Premises or Building, including ADA compliance upgrades, required because of any Alterations made by Tenant.
5.2 Ownership and Removal of Alterations. Notwithstanding any other provision of this Lease: (i) Alterations performed or installed on the Premises by either Landlord or Tenant, except trade fixtures installed by Tenant, shall be the property of Landlord when installed and will remain on the Premises and not be removed by Tenant unless Landlord and Tenant specifically agree otherwise in writing; and (ii) trade fixtures installed by Tenant will, unless Landlord and Tenant specifically agree otherwise in writing, be and remain the property of Tenant, may be removed by Tenant at any time, and are to be removed from the Premises by Tenant at the expiration or earlier termination of this Lease.
5.3 Signage. Subject to Landlord's prior written consent, Tenant shall be permitted to erect and maintain such signage as may be permitted under the Legal Requirements applicable to the Building (including City of Redmond sign regulations). Signage installed by Tenant shall be maintained by Tenant during the Term and shall be removed by Tenant on the termination of this Lease and the sign location restored to its former state, ordinary wear and tear excepted, unless the parties mutually agree otherwise in writing. All Tenant signage, including installation, maintenance, and removal, shall be at Tenant's sole cost and expense.
| 6. | Insurance |
6.1 Property Insurance. Landlord shall keep the Premises insured against the perils covered by a special form building and personal property policy, including coverage for loss of rents, with limits adequate to replace the Building (as the cost of such replacement may change from time to time), and shall provide Tenant with proof of such coverage on Tenant's request. Tenant shall maintain, at Tenant's cost and expense, a special form property insurance policy covering Tenant's personal property, which includes the furniture, trade fixtures, equipment, inventory and Tenant Improvements belonging to Tenant located on the Premises, at replacement cost value.
6.2 Liability Insurance. Tenant shall obtain and continuously maintain in force, for the duration of this Lease, a commercial general liability insurance policy. This policy shall be on an occurrence form with an insurance company authorized to operate in the State of Oregon. There shall be no exclusions on the policy with respect to any operations on the subject Premises. Tenant's commercial general liability insurance policy shall insure the performance of Tenant's indemnification obligations under this Lease. Such insurance shall protect Tenant against the claims of the Landlord on account of the obligations assumed by Tenant under Section 6.5 of this Lease and shall name Landlord as an additional insured. Landlord shall be named as an additional insured on Tenant's liability insurance policies. Tenant's liability insurance will have a provision stating that it is primary and non-contributory to any other insurance. The limits of commercial general liability insurance required shall be not less than
$2,000,000 per occurrence, with an aggregate limit of not less than $4,000,000. These limits may be met with a primary commercial general liability insurance policy and an excess liability policy, if necessary. Certificates evidencing the required liability shall bear endorsements requiring 10 days' written notice to Landlord prior to any change or cancellation of such insurance, and shall be furnished to Landlord, together with copies of the additional insured endorsement, on or before the Commencement Date.
6.3 Waiver of Subrogation. Notwithstanding anything in this Lease to the contrary, Landlord and Tenant release each other from any claims and demands of whatever nature for damage, loss or injury to the Premises or the Building, or to the other's property in, on or about the Premises or the Building, that are caused by or result from risks or perils insured against under any property insurance policies required by the Lease to be carried by Landlord or Tenant and in force at the time of any such damage, loss or injury. Each of Tenant and Landlord covenants that, to the fullest extent permitted by law and by their respective insurers, no insurer shall hold any right of subrogation against the other. Each party will advise its insurers of the foregoing and agrees to obtain such an agreement from its insurer if the policy does not expressly permit a waiver of subrogation. Neither Landlord nor Tenant shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy required by the Lease. IF A PREMISES PARTIAL DAMAGE (AT WHICH TENANT SHALL MAKE THE REPAIRS AT TENANT'S EXPENSE) OR TOTAL DESTRUCTION OCCURS AND IS CAUSED BY A NEGLIGENT OR WILLFUL ACT OF TENANT, THE LANDLORD WAIVER OF SUBROGATION IS VOID (DOES NOT APPLY)AND LANDLORD SHALL HAVE THE RIGHT TO RECOVERY AGAINST TENANT, OFFICERS, EMPLOYEES, AGENTS REPRESENTATIVES, AND INSURANCE CARRIER OF TENANT FOR LOSS OR DAMAGE TO PREMISES.
6.4 Worker's Compensation. Tenant shall carry worker's compensation and employers liability insurance as required by Oregon law, with coverage of not less than the statutory limits. Upon execution of this Lease, and thereafter from time to time, at Landlord's request, Tenants shall furnish to Landlord a certificate of insurance of other evidence satisfactory to Landlord that the foregoing insurance is in effect.
6.5 Tenant's Indemnification. Tenant shall indemnify, defend, and hold Landlord and Landlord's shareholders, members, employees, contractors, trustees, trustors, beneficiaries, agents, successors, and assigns (collectively, the "Protected Parties") harmless for, from, and against any claim, loss, or liability arising out of or resulting from: (i) any activity of Tenant, its agents, employees or invitees on or at the Premises, (ii) any condition of the Premises in the possession or under the control of Tenant or otherwise caused by Tenant's negligence, willful misconduct, legal violation or breach of duty; or (iii) any claim, loss, or liability incurred by the Protected Parties or which is asserted against or imposed upon the Protected Parties, their successors and assigns, by any party (including any governmental entity) arising out of or resulting from Tenant's breach of any provision of this Lease. The Protected Parties shall have no liability to Tenant for any injury, loss, or damage caused by third parties, or by any condition of the Premises (except to the extent caused by Landlord's gross negligence, intentional misconduct, or any breach of duty under this Lease). The Protected Parties shall have no liability for the failure or interruption of utilities and in no event for lost profits or consequential damages. Tenant's indemnification obligations will survive any expiration or termination of this Lease and are in addition to, and not in limitation of, Tenant's other indemnity obligations under this Lease.
| 7. | Taxes; Utilities |
7.1 Property Taxes. Tenant shall pay as due all taxes on its personal property located on the Premises. Landlord shall pay any and all general real property taxes levied against the Premises, including any special assessments levied and allocable to the Premises, all of which general real property taxes and special assessments shall be reimbursed by Tenant to Landlord within fifteen (15) days of receiving an invoice from Landlord. Any savings on the an1ount of real property taxes owing as a result of enterprise zone authorization will be passed on to the Tenant such that the amow1t reimbursed by Tenant to Landlord shall equal the reduced amount owing due to enterprise zone qualification. For purposes of this Lease, "general real property taxes" shall mean any fee or charge relating to the ownership, use, or rental of the Premises and the Building, other than taxes on the net income of Landlord or Tenant. Tenant shall be permitted to contest the amow1t of any tax or assessment as long as such contest is conducted in a manner that does not cause any risk that Landlord's interest in the Premises will be foreclosed for nonpayment. Landlord shall cooperate in any reasonable manner with such contest by Tenant. Tenant's share of real property taxes and assessments for the years in which this Lease commences or terminates shall be prorated based on the p01iion of the tax year that this Lease is in effect.
7.2 Special Assessments. If an assessment for a public improvement is made against the Premises or the Building, Landlord may elect to cause such assessment to be paid in installments in which case all of the installments payable with respect to the Lease shall be treated the san1e as general real property taxes for the purposes of this Section 7.
7.3 Payment of Utility and Service Char es. When not included as part of the Operating Expenses, Tenant shall pay when due all charges for services and utilities incurred in connection with the use, occupancy, operation, and maintenance of the Premises, including charges and expenses for telephone, internet, and in-suite janitorial services.
7.4 Triple Net Lease. Landlord and Tenant agree and acknowledge that this Lease is to be construed and interpreted as a "triple net lease." Accordingly, all charges, costs, and expenses directly or indirectly related to the use, occupation, operation, management, or lease of the Premises will be payable by Tenant unless expressly provided otherwise in this Lease.
| 8. | Damage and Destruction |
8.1 Partial Damage. If the Premises are partially damaged and Section 8.2 does not apply, Landlord shall, within a reasonable amount of time after the date of the damage, repair and restore the Premises to as near the same condition as the Premises existed prior to such damage. Repairs shall be accomplished with all reasonable dispatch subject to any Force Majeure Event.
8.2 Destruction. If the Premises are destroyed or damaged such that the cost of repair or replacement exceeds fifty percent (50%) of the replacement value of the Premises before the damage, Landlord shall so notify Tenant in writing and either party may elect to terminate this Lease as of the date of the damage or destruction by written notice given to the other not more than 45 days following the date of Landlord's notice to Tenant. In such event, all rights and obligations of the parties shall cease as of the date of termination and Tenant shall have no further Rent payment obligations. If neither party elects to terminate, Landlord shall proceed to restore the Premises to substantially the same form as prior to the damage or destruction. Work shall be commenced as soon as reasonably possible and thereafter shall proceed without interruption, subject to any Force Majeure Event.
8.3 Rent Abatement. If the Premises are partially damaged or destroyed, Rent shall be abated for the period during which such damage or destruction is being repaired in proportion to the degree to which the Premises are untenantable and Tenant shall have the option of extending the original Term by the length of time the Premises are untenantable.
8.4 Dama2e Late in Term. If damage or destruction to which Section 8.2 would apply occurs within 6 months prior to the end of the Term, Tenant may elect to terminate this Lease by written notice to Landlord given within 30 days after the date of the damage. Such termination shall have the same effect as termination under Section 8.2.
| 9. | Eminent Domain |
9.1 Partial Takin2. If a portion of the Premises is condemned and Section 9.2 does not apply, this Lease shall continue on the following terms:
(a) The parties will be entitled to share in the condemnation proceeds in proportion to the values of their respective interests in the Premises (including, without limitation, the value of the Tenant Improvements). Tenant may also claim dislocation damages and compensation for damages to Tenant's property. Except for Tenant's rights under this Section 9, Tenant shall have no claim against Landlord as a result of the condemnation.
(b) Landlord shall proceed as soon as reasonably possible to make any repairs and alterations to the Premises necessary to restore the remaining Premises to a condition as comparable as reasonably practicable to that existing at the time of the condemnation.
(c) After the date on which title vests in the condemning authority, or an earlier date on which alterations or repairs are commenced by Landlord to restore the balance of the Premises in anticipation of taking, Base Rent and Tenant's Excess TI Payment(s) shall be reduced in prop01tion to the reduction in value of the Premises as an economic unit on account of the partial taking.
(d) If a portion of Landlord's property not included in the Premises is taken, and severance damages are awarded on account of the Premises, or an award is made for detriment to the Premises as a result of activity by a public body not involving a physical taking of ai1y portion of the Premises, this shall be regarded as a partial condemnation to which Sections 9.l(a) and 9.l(b) apply, and Base Rent and Tenant's Excess TI Payment(s) shall be reduced to the extent of reduction in rental value of the Premises as though a portion had been physically taken.
9.2 Total Takin2. If a condemning authority takes all of the Premises, or a portion sufficient to render the remaining po1tion of the Premises reasonably unsuitable for the use that
Tenant was then making of the Premises, this Lease shall terminate as of the date title vests in the condemning authorities. Termination of this Lease pursuant to this Section 9.2 shall have the same effect as termination by Landlord under Section 8.2 (except that the provisions of Section
8.5 will not apply). The parties will be entitled to share in the condemnation proceeds in proportion to the values of their respective interests in the Premises (including, without limitation, the value of the Tenant Improvements). Tenant may also claim dislocation damages and compensation for damages to Tenant's property.
9.3 Sale in Lieu of Condemnation. Sale of all or part of the Premises to a purchaser with the power of eminent domain in the face of a threat or probability of the exercise of the power of eminent domain shall be treated for the purposes of this Section 9 as a taking by condemnation.
Liability and Indemnity
10.1 Liens. Except with respect to activities for which Landlord is responsible, Tenant shall pay as and when due all claims for work done on and for services rendered or material furnished to the Premises and shall keep the Premises free from any and all liens. If Tenant shall fail to pay any such claims or to discharge any lien, Landlord may do so and collect the costs as Rent. Any amow1t so added shall bear interest at the Default Rate from the date expended by Landlord and shall be payable on demand. Landlord's payment of Tenant's claims or discharge of any Tenant lien shall not constitute a waiver of any other right or remedy which Landlord may have on account of Tenant's default. If a lien is filed as a result of nonpayment, Tenant shall, within ten (10) days after knowledge of the filing, secure the discharge of the lien or deposit with Landlord cash or sufficient corporate surety bond or other surety satisfactory to Landlord in an amount sufficient to discharge the lien plus any costs, attorney fees, and other charges that could accrue as a result of a foreclosure or sale under the lien. Landlord may require Tenant to furnish a lien and completion bond, or other reasonable financial assurances, before the commencement of any work.
10.2 Indemnification. Tenant shall indemnify, defend, and hold Landlord and Landlord's trustees, trustors, beneficiaries, shareholders, members, managers, employees, contractors, agents, successors, and assigns harmless for, from, and against any claim, loss, or liability arising out of Tenant's failure to comply with Section 10.1.
| 11. | Quiet Enjoyment |
11.1 Tenant's Quiet Enjoyment. Landlord warrants that it is the owner of the Premises and has the right to lease the Premises to Tenant. Landlord shall defend Tenant's right to quiet enjoyment of the Premises from the claims of all persons during the Term.
11.2 Estoppel Certificate. Either party shall, within 20 days after notice from the other, execute and deliver to the other party a certificate stating whether or not this Lease has been modified and is in full force and effect and specifying any modifications or alleged breaches by the other party. The certificate shall also state the amount of monthly Base Rent, the dates to which Rent has been paid in advance, the amount of any security deposit or prepaid Rent, that all conditions under the Lease to be performed by Landlord (including any construction obligations or tenant improvement allowance payments) have been satisfied (or specifying those conditions that Landlord has not satisfied), and any other information relating to the Lease reasonably requested by the other party. Failure to deliver the certificate within the specified time shall be conclusive on the party from whom the certificate was requested that the Lease is in full force and effect and has not been modified except as represented in the notice requesting the certificate.
| 12. | Assignment and Sublease |
12.1 Assignment and Sublease. Tenant shall not sell, assign, mortgage, sublet, lien, convey, encumber, or otherwise transfer (whether directly, indirectly, voluntarily, involuntarily, or by operation of law) all or any part of Tenant's interest in this Lease or in the Premises (collectively, "Transfer") without Landlord's prior written consent, which consent shall, as provided in Section 12.2 below, not be unreasonably withheld. For purposes of this Lease, a "Transfer" shall be deemed to include the sale, assignment, encumbrance, or transfer - or series of related sales, assignments, encumbrances, or transfers - of fifty percent (50%) or more of the shares or other ownership interest of Tenant regardless of whether the sale, assignment, encumbrance, or transfer occurs voluntarily, involuntarily, by operation of law by operation of law, or by any act or occurrence. Tenant shall provide Landlord thirty (30) days' advance written notice of its desire to Transfer its interest in the Premises, or any portion thereof, and such notice shall state the name and address of the proposed transferee. Tenant shall include in Tenant's notice of transfer a true and complete copy of the proposed transfer instrument, which transfer instrument shall expressly include that the transferee shall comply and be bound by all of the terms, covenants, conditions, and provisions of this Lease. Any Transfer which does not comply with this Lease shall be void and shall constitute a breach of this Lease.
12.2 Conditions to Landlord's Consent. Landlord's consent to any proposed Transfer by Tenant shall not be unreasonably withheld, but may be conditioned on (in addition to any other condition that Landlord may reasonably impose) the following: (i) Tenant demonstrating (to Landlord's reasonable satisfaction) that the transferee's condition (financial and otherwise) and business reputation is equivalent to that of Tenant, that Tenant's operations on and use of the Premises would be in compliance with the terms of this Lease, and that Landlord's interest in the Premises would not be adversely affected (for the avoidance of doubt any
cannabis-related use may be denied in Landlord's sole and absolute discretion); (ii) Landlord obtaining financial statements reasonably satisfactory to Landlord from any entity that is the transferee; (iii) Tenant reimbursing Landlord for all reasonable costs and expenses incurred by Landlord in connection with its review of any Transfer documents or otherwise related to its determination as to whether to consent to the proposed Transfer, including reasonable attorney fees; and (iv) the transferee(s) agreeing in writing to comply with and be bound by all of the terms, covenants, conditions, provisions, and agreements of this Lease (Tenant shall deliver to Landlord, promptly after execution, an original executed copy of all documentation pertaining to the Transfer in form reasonably acceptable to Landlord). In the event of any sublease or assignment of this Lease, Landlord shall be entitled to any excess rent (however calculated) actually paid to Tenant as a result of such sublease or assignment. Tenant acknowledges and agrees that Landlord's conditioning of its consent to any Transfer on Tenant's satisfaction of the conditions contained in this Section 12.2 is reasonable under this Lease.
| 12.3 | Effect of Transfer. If Landlord consents to a Transfer, the following shall apply: |
(a) the terms and conditions of this Lease (or any Personal Guaranty hereof) shall in no way be deemed to have been waived or modified; (ii) consent shall not be deemed consent to any further Transfer by Tenant or any transferee; and (iii) the acceptance of Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease. An approved Transfer shall relieve Tenant from liability under this Lease. Landlord may consent to subsequent assignments, subletting of this Lease, or amendments or modifications to this Lease with assignees of Tenant without notifying Tenant, or any successor of Tenant, and without obtaining its or their consent.
| 13. | Default |
13.1 Tenant Default. The occurrence of any of the following events shall constitute a default under this Lease (each an "Event of Default"):
(a) Default in Payment of Rent or Other Char es. Failure of Tenant to pay Rent or any other charge, cost, or expense within 5 days after such payment is past due.
(b) Default in Other Covenants. Failure of Tenant to comply with any term or condition or fulfill any obligation of this Lease (other than the payment of Rent or other charges) within 30 days after written notice from Landlord specifying the nature of the default. If the default is of such a nature that it cannot be completely remedied within the 30-day period, this Section 13.l(b) shall be deemed complied with if Tenant begins correction of the default within the 30-day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable.
(c) Insolvency. Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, as amended from time to time; an assignment by Tenant for the benefit of creditors; the filing by Tenant of a voluntary petition in bankruptcy; an adjudication that Tenant is bankrupt or the appointment of a receiver of the properties of Tenant; the filing of any involuntary petition of bankruptcy and failure of Tenant to secure a dismissal of the petition within 120 days after filing; attachment of or the levying of execution on the leasehold interest and failure of Tenant to secure discharge of the attachment or release of the levy of execution within 30 days. If Tenant consists of 2 or more individuals or business entities, the Events of Default specified in this Section 13.l(c) shall apply to each individual unless within 30 days after an Event of Default occurs the remaining individuals produce evidence satisfactory to Landlord that they have unconditionally acquired the interest of the one causing the default.
(d) Abandonment. The vacation or abandonment of the Premises by Tenant for 10 or more consecutive days at any time following delivery of possession of the Premises to Tenant, as evidenced by Tenant's failure to consistently operate its business during normal Business Hours on normal Business Days, unless such failure is excused under other provisions of this Lease.
13.2 Landlord Default. No act or omission of Landlord shall be considered a default under this Lease until Landlord has received 30 days' prior written notice from Tenant specifying the nature of the default with reasonable particularity. Commencing from Landlord's receipt of such default notice, Landlord shall have 30 days to cure or remedy the default before Landlord shall be deemed in default of this Lease; provided, however, that if the default is of such a nature that it cannot be completely remedied or cured within the 30 day period, there shall not be a default by Landlord under this Lease if Landlord begins correction of the default within the 30 day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practical.
| 14. | Remedies on Default |
14.1 Termination. Upon the happening of an Event of a Default, this Lease may be terminated at the option of Landlord by notice to Tenant. If this Lease is not terminated by the election of Landlord, Landlord shall be entitled to recover damages from Tenant for the default. Regardless of whether this Lease is terminated, Tenant's liability to Landlord for any damages shall survive such termination, and Landlord may reenter, take possession of the Premises, and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages.
14.2 Relettin2. Following reentry or abandonment, Landlord may relet the Premises, and in that connection may make any suitable alterations or refurbish the Premises (or both), or change the character or use of the Premises, but Landlord shall not be required to relet for any use or purpose other than that specified in this Lease or which Landlord may reasonably consider injurious to the Premises, or to any tenant which Landlord may reasonably consider objectionable. Landlord may relet all or part of the Premises, alone or in conjunction with other properties, for a term longer or shorter than the Term, upon any reasonable terms and conditions, including the granting of some rent-free occupancy or other rent concession.
14.3 Dama2es. In the event of termination or retaking of possession following an Event of Default, Landlord shall be entitled to recover immediately, without waiting until the due date of any future Rent or until the date fixed for expiration of this Lease, and in addition to any other damages recoverable by Landlord, the following amounts as dan1ages:
(a) The loss of reasonable rental value from the date of default until a new tenant has been, or with the exercise of reasonable efforts could have been, secured.
| (b) | The reasonable costs of reentry and reletting including the cost of any |
clean-up, refurbishing, removal of Tenant's property and fixtures, or any other expense occasioned by Tenant's failure to quit the Premises upon termination and to leave the Premises in the required condition, including any remodeling costs, attorney fees, court costs, broker commissions, and advertising costs.
(c) The unamortized portion, during the initial Term, of any concessions (e.g. free rent or tenant improvement allowance) granted, and any brokerage commissions incurred, by Landlord in connection with this Lease.
(d) Any excess of the value of the Rent and all of Tenant's other obligations under this Lease over the reasonable expected return from the Premises for the period commencing on the earlier of the date of trial or the date the Premises are relet, and continuing through the end of the then current Term. The present value of future amounts will be computed using a discount rate equal to the prime loan rate of major Oregon banks in effect on the date of trial, or if no trial, on the date the Premises were relet.
14.4 Ri2ht to Sue More Than Once. Landlord may sue periodically to recover damages during the period corresponding to the remainder of the Term, and no action for damages shall bar a later action for damages subsequently accruing.
14.5 Remedies Cumulative. The foregoing remedies shall be in addition to and shall not exclude any other remedy available to Landlord under applicable law.
14.6 Landlord's Ri2ht to Cure Defaults. If Tenant shall fail to perform any obligation under this Lease, Landlord shall have the option to do so after 30 days' written notice to Tenant specifying the nature of the default. Landlord's performance of any Tenant obligation under this Lease shall not waive any other remedy available to Landlord. All of Landlord's expenditures to correct the default shall be reimbursed by Tenant on demand with interest at the Default Rate from the date of expenditure by Landlord.
| 15. | Surrender at Expiration |
15.1 Condition of Premises. Upon the expiration or earlier termination of this Lease, Tenant shall surrender the Premises in good order and "broom clean" condition, reasonable wear and tear excepted. Alterations constructed by Tenant with permission from Landlord shall not be removed or restored to the original condition unless the terms of permission for the Alteration so require. Depreciation and wear from ordinary use for the purpose for which the Premises were leased need not be restored, but all maintenance and repairs for which the Tenant is responsible shall be completed to the latest practical date prior to such surrender. Tenant's obligations under this Section 15.1 shall be subordinate to the provisions of Section 8 related to destruction. Upon surrender, Tenant shall deliver all keys in Tenant's possession to Landlord, whether for interior or exterior Premises doors. Tenant shall reimburse Landlord for the cost of re-keying any Premises door for which a key is not delivered to Landlord.
| 15.2 | Fixtures. |
(a) Unless Landlord and Tenant agree otherwise in writing, following the expiration or earlier termination of this Lease: (i) all fixtures on the Premises owned by Landlord are to remain on the Premises; and (ii) Tenant shall remove, as provided in Section 15.2(b) below, all fixtures owned or placed on the Premises by Tenant (excluding any owned by Landlord, but specifically including all of Tenant's trade fixtures) and repair any physical damage resulting from the removal. If Tenant shall fail to remove such fixtures, Landlord may do so and charge the cost to Tenant with interest at the Default Rate from the date of expenditure.
(b) Prior to the expiration or termination of this Lease, Tenant shall remove all of Tenant's furnishings and furniture, and all fixtures that Tenant is required to remove under Section 15.2(a) above. If Tenant fails to do so, this shall constitute an abandonment of the property, and Landlord may retain the property and all rights of Tenant with respect to it shall cease or, by notice in writing given to Tenant within 10 days after removal was required, Landlord may elect to hold Tenant to its obligation of removal. If Landlord elects to require Tenant to remove, Landlord may effect a removal and place the property in public storage for Tenant's account. Tenant shall be liable to Landlord for the cost of removal, transportation to storage, and storage with interest at the Default Rate on all such expenses from the date of expenditure by Landlord.
| 15.3 | Holdover. |
(a) If Tenant does not vacate the Premises at the time required, Landlord shall have the option to treat Tenant as a tenant from month-to-month, subject to all of the provisions of this Lease (except the provisions for term), at a rental rate equal to 125% of the Base Rent last paid by Tenant. Failure of Tenant to remove fixtures, furniture, furnishings, or trade fixtures which Tenant is required to remove under this Lease shall constitute a failure to vacate to which this Section 15.3 shall apply if the property not removed substantially interferes with the occupancy of the Premises by another tenant or with the occupancy by Landlord for any purpose including preparation for a new tenant.
(b) If a month-to-month tenancy results from a holdover by Tenant under this Section 15.3, the tenancy shall be terminable at the end of any monthly rental period on written notice from Landlord given not less than 10 days prior to the termination date which shall be specified in the notice. Tenant waives any notice which would otherwise be provided by law with respect to a month-to-month tenancy.
| 16. | Subordination and Attornment; Mortgagee Protection |
16.1 Subordination. Landlord represents and warrants that the Premises are not encumbered or affected by any deed of trust, mortgage or other financial encumbrance. This Lease is and shall be prior to any mortgage or deed of trust ("Encumbrance") recorded after the date of this Lease and affecting the Premises. However, if any lender holding such an Encumbrance requires that this Lease be subordinate to the Encumbrance, then Tenant agrees that the Lease shall be subordinate to the Encumbrance if the holder thereof agrees in writing with Tenant that as long as Tenant performs its obligations under this Lease no foreclosure, deed given in lieu of foreclosure, or sale pursuant to the terms of the Encumbrance, or other steps or procedures taken under the Encumbrance shall affect Tenant's rights under this Lease. Tenant, Landlord and Landlord's lender shall execute and record a commercially reasonable subordination, no disturbance and attornment agreement ("SNDA") to memorialize the foregoing provisions.
16.2 Notice. If any act or omission of Landlord would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, to claim damages from Landlord, or to claim a partial or total eviction, Tenant will not exercise the right:
(i) until it has given written notice of the act or omission to Landlord; (ii) until any cure period under Section 13.2 of this Lease has expired; and (iii) until any noticed required to be provided to a lender under any SNDA has been provided.
16.3 Attornment. Any mortgagee, transferee, purchaser, lessor or beneficiary succeeding to Landlord's interest following any foreclosure, sale or transfer in lieu thereof, may be referred to as a "Successor Landlord". Tenant shall attorn to the Successor Landlord and the Successor Landlord will accept Tenant's attornment, assume Landlord's obligations under the Lease, and will agree in writing not to disturb Tenant's quiet possession of the Premises. Tenant will attorn to and recognize the Successor Landlord as Tenant's Landlord under this Lease, and Tenant and the Successor Landlord will promptly execute and deliver an instrument reasonably acceptable to the parties to evidence the attornment and non-disturbance. Upon the attornment, this Lease will continue in full force and effect as a direct lease between the Successor Landlord and Tenant on all of the terms, conditions, and covenants as are set forth in this Lease.
| 17. | Miscellaneous |
17.1 Non-waiver. Waiver by either party of strict performance of any provision of this Lease shall not be a waiver of or prejudice the party's right to require strict performance of the same provision in the future or of any other provision.
17.2 Attorney Fees. If any arbitration or litigation is instituted to interpret, enforce, or rescind this Lease, including any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim shall be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party's reasonable attorney fees and other fees, costs, and expenses of every kind, including the costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the
collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
17.3 Notices. All notices or other communications required or permitted by this Lease must be in writing, must be delivered to the parties at the addresses set forth below, or any other address that a party may designate by notice to the other parties, and shall be considered
delivered upon actual receipt if delivered personally or by fax or an overnight delivery service, or at the end of the 5th Business Day after the date deposited in the United States mail, postage pre- paid, certified, return receipt requested.
Landlord: Tenant:
Charron Properties Incorporated, A California Corporation
6930 Fairview Road
Hollister, CA 95023
Yozamp Products Company, LLC, an Oregon limited liability company
dba Expion 360 Corporation 1266 SW Lake Road Redmond, OR 97756
With a copy to:
17.4 Succession. Subject to the limitations concerning the transfer and assignment of this Lease under Section 12, this Lease will be binding upon and inure to the benefit of the parties, their respective successors and assigns.
17.5 Recordation. Tenant may record a memorandum of this Lease, and Landlord shall execute and acknowledge a memorandum of this Lease in a form suitable for recording if requested by Tenant, and shall otherwise reasonably cooperate with Tenant in connection with Tenant's rights under this paragraph.
17.6 Entry for Inspection. Landlord may, to determine Tenant's compliance with this Lease, to make necessary repairs to the Premises, or to show the Premises to any prospective tenant or purchaser, inspect the premises at a mutually convenient time on not less than 24-hour prior notice to Tenant. In addition, Landlord shall have the right, at any time during the last 6 months of the Term, to place and maintain upon the Premises notices for sale or leasing of the Premises. Upon expiration or earlier termination of this Lease, Tenant shall promptly supply Landlord with copies of keys for all doors and locks in the Premises.
17.7 Interest on Rent and Other Charges. Any Rent or other payment required to be paid by Tenant under this Lease (including a Late Fee under Section 2.6) shall, if not paid within 5 days after it is due, bear interest an annual rate equal to the prime rate of interest published in the Wall Street Journal plus 5% (provided that under no circumstances will the interest rate be less than 10% per annum) (the "Default Rate") from the due date until paid.
17.8 Severability. If a provision of this Lease is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Lease shall not be impaired.
17.9 Further Assurances. The parties shall sign such other documents and take such other actions as are reasonably necessary to further effect and evidence this Lease.
17.10 Governing Law. This Lease is governed by the laws of the State of Oregon, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing the Lease.
17.11 Standard for Discretion. When exercising Landlord's discretion under this Lease, or if this Lease is silent on the standard for any consent, approval, determination, or similar discretionary action by Landlord, the standard shall be Landlord's sole and absolute discretion.
17.12 Entire Agreement. This Lease contains the entire understanding of the parties regarding the subject matter of this Lease and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this Lease.
17.13 Signatures. This Lease may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Electronic signatures and copies of signature by electronic scan, facsimile or otherwise will be treated as original signatures.
17.14 Representation. Landlord and Tenant each represent to the other that they have not dealt, directly or indirectly, in connection with the leasing of the Premises, with any broker or person entitled to claim a commission or leasing fees. Landlord and Tenant each will indemnify and hold each other harmless from any loss, liability, damage, or expense (including reasonable attorneys' fees) arising from any claim for a commission or leasing fee arising out of this transaction made by any unidentified broker or other person with whom such party has dealt.
17.15 Force Majeure. Any non-monetary obligation of Landlord or Tenant which is delayed or not performed due to Acts of God, strike, riot, shortages of labor or materials, war, governmental laws, regulations or restrictions, delays caused by the City of Redmond, or any other causes of any kind whatsoever which are beyond Landlord's or Tenant's reasonable control (each a "Force Majeure Event"), will not constitute a default hereunder and will be performed within a reasonable time after the end of such cause for delay or nonperformance. If Landlord or Tenant is delayed in constructing or reconstructing the Building or Premises due to a Force Majeure Event, then the time within which such construction or reconstruction is to be completed will be extended, day for day, by the number of days of such delay. No Force Majeure Event will commence or be deemed to have occurred unless, within ten (10) days of the event constituting the Force Majeure Event, the party claiming such delay has provided written notice to the other specifying the action, inaction or circumstance that the claiming party contends constitutes a Force Majeure Event.
17.16 Time. If the date for performance of an obligation or delivery of any notice hereunder falls on a day other than a Business Day, the date for such performance or delivery of such notice shall be postponed until the next ensuing Business Day.
17.17 Nonrecourse Lease & Limits on Claims. Tenant shall look only to Landlord's interest in the Building and the Premises (or the proceeds thereof) for the satisfaction of Tenant's remedies for the collection of a judgment (or other judicial process) requiring the payment of money by Landlord in the event of any default by Landlord hereunder and no other property or assets of Landlord or its trustees, trustors, beneficiaries, members or managers, whether disclosed or undisclosed, shall be subject to levy, execution, or other enforcement procedure for the satisfaction of Tenant's remedies under or with respect to this Lease, the relationship of Landlord and Tenant hereunder, or Tenant's use or occupancy of the Premises.
17.18 Authority. The undersigned each represent and warrant that they have the full right, power, and authority to execute, deliver, and perform this Lease on behalf of the party to which they are associated and that when this Lease is executed and delivered by the undersigned, this Lease shall constitute the valid and binding agreement of such party, enforceable in accordance with its terms.
17.19 Time of Essence. Time is of the essence with respect to all dates and time periods in this Lease.
17.20 Interpretation. All pronouns contained herein and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties or other context may require. The singular includes the plural and the plural includes the singular. The word "or" is not exclusive. The words "include," "includes," and "including" are not limiting. The term "person" means any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision, or any other entity. The titles, captions, or headings of the sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Lease. This Lease is the result of arms-length negotiations between the parties and will not be construed against landlord by reason of its preparation of this Lease document. Nothing contained in this Lease will be deemed or construed as creating a relationship of principal and agent, partners, joint venturers, or any other similar relationship between the parties hereto.
17.21 Consequential Damages. In no event shall Landlord be liable to Tenant, and Tenant hereby waives any claims against Landlord, for any consequential, special or punitive damages.
| 17.22 | Lease Not Binding: Until Fully Executed. The submission of this document for |
examination or negotiation does not constitute an offer to lease or a binding contract for the Lease of the Premises until such time as both the Landlord and Tenant execute this document and a fully executed original is delivered to Landlord. Further, so long as th.is document is not executed by Tenant and delivered to Landlord, Landlord may consider this document null and void and may offer the Premises to any other prospective Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this lease on the day and year first set forth above.
"Landlord" "Tenant"
CHARRON PROPERTIES
INCORPORATED, A California
Corporation
STEVEN A. CHARRON, President and CEO
YOZAMP PRODUCTS COMPAN
LLC, an Oregon limited liability company dba Expion 360 Corporation
Its
Page 27. COMMERCIAL LEASE 18195-001\1548354
Order No.: WT0225072
EXHIBIT "A"
Legal Description
Parcel I:
A parcel of land situate in a portion of the Southeast quarter of Section 16, Township 15 South, Range 13 East of the Willamette Meridian, City of Redmond, Deschutes County, Oregon, more particularly described as follows:
Commencing at a brass cap monumenting the Southeast comer of Section 16, Township 15 South, Range 13 East of the Willamette Meridian, the initial point; thence North 89°19'45" West along the South line of the Southeast 1/4 of said Section 16, 616.11 feet to an iron rod in concrete; thence North 01°17'15" East, 615.36 feet to a 5/8 inch rebar and the true point of beginning; thence North 01°17'15" East, 147.68 feet; thence South 89°19'45" East, parallel with said South line, 363.02 feet; thence North 01°17'15" East, 120 feet; thence South 89°19'45" East parallel with said South line, 115.74 feet to a 1/2 inch pipe; thence South 02°45'15" East, 268.14 feet to a 5/8 inch iron rod; thence North 89°19'45" West, parallel with said South line, 497.68 feet to the true point of beginning.
Parcel II:
A parcel of land situate in a portion of the Southeast quarter Section 16, Township 15 South, Range 13 East of the Willamette Meridian, City of Redmond, Deschutes County, Oregon, more particularly described as follows:
Commencing at a brass cap monumenting the Southeast comer of Section 16, Township 15 South, Range 13 East of the Willamette Meridian, the initial point; thence North 89°19'45" West along the South line of the Southeast 1/4 of said Section 16: 616.11 feet to an iron rod in concrete; thence North 01°17'15" East, 763.04 feet to the true point of beginning; thence South. 89°19'45" East, parallel with said South line, 363.02 feet; thence North 01°17'15" East, 120 feet; thence North 89°19'45" West parallel with said South line, 363.02 feet to a 1/2 inch pipe; thence South 01°17'15" West, 120.00 feet to the true point of beginning.
Page Al. COMMERCIAL LEASE - Exhibit A 18195-00I\1548354
Exhibit B
Work Letter Agreement
This Work Letter Agreement ("Agreement") is entered into effective November 1, 2021, between CHARRON PROPERTIES INCORPORATED, A California Corporation ("Landlord") and YOZAMP PRODUCTS COMPANY, LLC, an Oregon limited liability company dba Expion 360 Corporation ("Tenant"), in connection with the execution of the Commercial Lease between Landlord and Tenant of even date herewith (the "Lease"), who hereby agree as follows:
1. General. The purpose of this Agreement is to describe how the Premises will be improved with a Tenant Improvement allowance of $100,000. with consent of Landlord and Tenant. Any Tenant Improvements exceeding 100,000.00, after being mutually accepted by Landlord and Tenant will be amortized over 12 months commencing on the effective date of this Lease. The proposed Tenant Improvements (as defined below), and who will pay for the construction of additional Tenant Improvements. All capitalized terms used, but not defined, in this Agreement shall have the same meaning given to such terms in the Lease. The Tenant Improvements shall be constructed pursuant to this Agreement by Landlord. Landlord shall provide the Tenant Improvement Allowance (as defined in Section 4(a), below) and shall provide possession of the Premises to Tenant upon completion of the Tenant Improvements or when mutually agreed to by Tenant and Landlord in writing.
2. Tenant Improvements. Landlord and Tenant agree that the "Tenant Improvements" shall mean those items associated with the build-out of the Building's interior to suit Tenant's needs. Those items include: Building A-office wall demolition, repairing roll up doors, clean up walls, painting, carpeting and 1000 sq feet epoxy of floors; Building B-Epoxy of floors and repair roll up doors.
3. Construction/Delivery Condition/Warranty. The Tenant Improvements shall be undertaken and completed in a good, workmanlike manner.
| 4. | Tenant Improvement Allowance. |
(a) Amount. Landlord will allow the amount of $100,000.00 actual costs for the construction of the Tenant Improvements. Such construction costs, which include, without limitation any amounts paid to Landlord's contractor, permit fees and related governmental charges are referred to in this Agreement as the "Tenant Improvement Allowance." Landlord and Tenant agree that the Tenant Improvement Allowance shall not exceed $100,000.00 (the "TI Cap"), unless otherwise separately agreed to by Tenant and Landlord in writing. Tenant shall be solely responsible for all costs of the Tenant Improvements in excess of the TI Cap (the "Excess TI Allowance").
| (b) | Repayment of Excess TI Allowance. Tenant shall repay the Excess TI |
Page B 1. COMMERCIAL LEASE - Exhibit B 18195-001\1548354
Allowance in equal monthly installments ("Tenant's TI Payment"), with interest at 6% per annum, amortized over 12 months as Additional Rent. Notwithstanding anything in this Agreement to the contrary, Tenant may prepay all or any part of the Excess TI Allowance at any time without penalty.
"Landlord" "Tenant"
CHARRON PROPERTIES
YOZAMPPRODUCTSCOMPAN
LLC, an Oregon limited liability company dba Expion 360 Corporation
,;.:
;.:
STEVEN A. CHARRON, CEO &
President
Its
Page B 2. COMMERCIAL LEASE - Exhibit B !8]95-001\1548354
