1
EXHIBIT 10.6
STANDARD INSURANCE COMPANY Dated: January 20, 1983
P. 0. BOX 711
PORTLAND, OREGON 97207
RE: Lease dated: October 9, 1980
Landlord: Xxxxxx Xxxxxxx
Tenant: G. 1. Joe's, Inc.
Premises: 0000 X. Xxxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxx 00000
Minimum Rent: $26,490.86 per month
Percentage Rent: 1 1/2% of the gross receipts in excess of
$10,000,000.
Lease Term: 20 years with 2, 5-year options
Gentlemen:
The undersigned, Tenant in the above described lease, hereby confirms, as of the
date hereof, the following:
1. That it is in full and complete possession of the demised premises,
such possession having been delivered by the landlord and having been
accepted by the undersigned.
2. That the improvements and space required to be furnished by the terms
of the Lease have been completed in all respects to the satisfaction
of the undersigned and are open for the use of the undersigned, its
customers, employees and invitees.
3. That all duties of an inducement nature required of the Landlord in
said Lease have been fulfilled.
4. That said Lease is in full force and effect; that there is no existing
default on the part of the Landlord in the terms thereof; and that
said Lease has not been amended, modified, supplemented or superseded,
except as follows:
5. That no rents have been prepaid except as provided by said Xxxxx; that
undersigned does not have or hold any claim against Landlord which
might be set off or credited against future accruing rents.
6. That undersigned has received no notice of a prior sale, transfer,
assignment, hypothecation, or pledge of the said Lease or of the rents
secured therein, except to you.
2
7. That rents provided in said Lease commenced to accrue on the 21st day
of July, 1981.
8. That undersigned will give prompt written notice to Standard Insurance
Company at its address above, in the event of Lessor's default or
omission under the terms of any covenant contained in said Lease,
which notice shall apprise Lender of the nature of such default or
omission. Prior to terminating the Lease for any reason whatsoever
before expiration of the specified term, it shall allow lender thirty
(30) days after receipt of notice to rectify or cure the default,
omission or condition constituting the basis for such termination.
Very truly yours,
/s/
3
XXXXXX XXXXXXX
INDEX TO BUILDING LEASE
Page
ARTICLE 1 - PREMISES 1
ARTICLE 2 - CONSTRUCTION 1
ARTICLE 3 - TERM 2
ARTICLE 4 - OPTIONS 2
ARTICLE 5 - RENT 3
ARTICLE 6 - GROSS RECEIPTS DEFINED 6
ARTICLE 7 - RECORDS AND REPORTING 7
ARTICLE 8 - TAXES AND INSURANCE 9
ARTICLE 9 - USE OF PREMISES 10
ARTICLE 10 - OPERATION OF BUSINESS AND OBLIGATION TO OPERATE 10
ARTICLE 11 - STORAGE, OFFICE SPACE 10
ARTICLE 12 - PARKING AREAS 11
ARTICLE 13 - FIXTURES 11
ARTICLE 14 - SIGNS, AWNINGS AND CANOPIES 11
ARTICLE 15 - TENANT SHALL DISCHARGE ALL LIENS 11
ARTICLE 16 - MAINTENANCE BY TENANT 12
ARTICLE 17 - SURRENDER OF PREMISES 12
ARTICLE 18 - RULES AND REGULATIONS 12
ARTICLE 19 - INDEMNIFICATION AND LIABILITY INSURANCE 13
ARTICLE 20 - FIRE AND OTHER CASUALTY 14
ARTICLE 21 - PLATE GLASS 15
ARTICLE 22 - EMINENT DOMAIN 15
ARTICLE 23 - WORKMEN'S COMPENSATION 16
ARTICLE 24 - UTILITIES AND GARBAGE 16
ARTICLE 25 - SUBORDINATION 16
4
Index continued ....
ARTICLE 26 - INVOLUNTARY ASSIGNMENT 17
ARTICLE 27 - CONSENT REQUIRED 18
ARTICLE 28 - WASTE OR NUISANCE 18
ARTICLE 29 - GOVERNMENTAL REGULATIONS 18
ARTICLE 30 - ADVERTISING 19
ARTICLE 31 - RIGHT OF ENTRY 19
ARTICLE 32 - TAXES ON LEASEHOLD 19
ARTICLE 33 - LOSS AND DAMAGES 20
ARTICLE 34 - HOLDING OVER 20
ARTICLE 35 - SUCCESSORS 21
ARTICLE 36 - WAIVER AND CONSENT 21
ARTICLE 37 - ACCORD AND SATISFACTION 21
ARTICLE 38 - ENTIRE AGREEMENT 21
ARTICLE 39 - NO PARTNERSHIP 22
ARTICLE 40 - NOTICES 22
ARTICLE 41 - USE WORDS 22
ARTICLE 42 - PARTIAL INVALIDITY 22
ARTICLE 43 - NO OPTION 23
ARTICLE 44 - RECORDING 23
ARTICLE 45 - ATTORNEY'S FEES 23
ARTICLE 46 - OWNER'S LIEN 23
ARTICLE 47 - DEFAULT 24
ARTICLE 48 - DEFINITIONS 25
5
BUILDING LEASE
This lease is made October 9, 1980, between XXXXXX XXXXXXX, a joint venture
("Owner"), whose address is 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxx
00000 and G.I. Xxx's, Inc., ("Tenant"), whose address is P.O. Box 11037,
Portland, Oregon.
In consideration of the rents, covenants and conditions herein set forth,
Owner and Tenant agree as follows:
ARTICLE 1. PREMISES
1.1. Owner leases to Tenant and Tenant leases from Owner the premises
("Premises") located in the City of Portland, Multnomah County, State of Oregon,
in the Xxxxxx Xxxxxxx Shopping Center, and further described in Exhibit "A",
which exhibit is attached to and made a part of this lease.
ARTICLE 2. CONSTRUCTION
2.1. The building and other improvements that are a part of the Premises
shall be constructed by Owner in accordance with mutually agreed upon plans and
specifications which shall be attached hereto, marked Exhibit "B" and made a
part of this lease.
2.2. Owner shall notify Tenant of the expected date for substantial
completion of Owner's construction obligations at least 30 days before that
date. After Owner notifies Tenant of the date, Xxxxxx shall have the right to
enter the Premises to commence equiping and fixturing as long as such entry does
not interfere with Owner or Owner's contractor.
2.3. Tenant shall take possession of the Premises immediately upon notice
from Owner of substantial completion of Owner's construction obligations
required by this lease. When Xxxxxx enters the Premises or takes possession as
provided in this Article, all the provisions of this lease shall be in full
force and effect except the rent provisions and except as otherwise expressly
provided in this lease, notwithstanding Article 3. Term below. Tenant will not
be required to take possession of the premises between September 1 and December
31 of any year.
2.4. Within thirty days after Owner has notified Tenant that the building
and other improvements that are a part of the Premises have been substantially
completed, Tenant shall give Owner a list of any contended defects or variances
from Owner's
Page 1 - BUILDING LEASE
6
construction obligations. Owner will immediately commence to complete or correct
the items that it believes are justified. If Xxxxxx does not deliver the list
within the thirty day period, Tenant shall be deemed to have accepted the
Premises. If Xxxxxx gives Owner a list within the thirty day period, Tenant
shall be deemed to have accepted the Premises subject to such defects or
variances.
2.5. If Owner is unable to substantially complete the Premises by June 30,
1983 as a result of causes beyond Owner's reasonable control, Owner shall not be
liable for any damage caused for failing to deliver possession. If owner does
not substantially complete the Premises by June 30, 1983, Tenant can elect to
terminate this lease by giving notice to Owner at any time before the date Owner
delivers possession of the Premises to Tenant.
2.6. If Owner by June 1, 1981 can not gain governmental approvals for
construction of the premises according to plans and specifications of this lease
and approvals for construction of the Xxxxxx Xxxxxxx development, either party
can elect to terminate this lease by giving the other party 30-day written
notice.
ARTICLE 3. TERM
3.1. The term of this lease shall commence 60 days following Owner's notice
to Tenant of substantial completion of Owner's construction obligations under
this lease, or upon opening of the Premises for business, whichever first
occurs, and shall expire on the last day of the 240 month following the date of
commencement. If the date of commencement is not the first day of a month, the
first partial month shall be excluded for the purpose of determining the
expiration date only.
3.2. Upon the request of either party following commencement of the term,
the parties shall immediately execute an amendment to this lease stating the
date of commencement of the term.
ARTICLE 4. OPTIONS
4.1. Tenant shall have the option to renew this lease for a period of 60
calendar months upon the same terms and conditions as provided herein. Tenant
will be required to give Owner 180 days written notice of such intention to
renew the lease.
4.2. Tenant shall have the option to renew this lease after the first
option renewal for a period of 60 calendar months upon the same terms and
conditions except for the rental. Tenant will be required to give Owner 180 days
notice of such intention to renew the lease. If the parties are unable to agree
upon the rent to be paid by Xxxxxx during the renewal term prior to the 90th day
preceding the expiration of the then lease term, and the extended term, the rent
shall be determined by a qualified, independent
Page 2 - BUILDING LEASE
7
real property manager in the Portland metropolitan area approved by the Portland
Realty Board chosen by Xxxxxx from a list of not fewer than three such
individuals submitted by Owner. If Xxxxxx does not make the choice within ten
days after submission of the list, Owner may do so. If Owner does not submit
such a list within ten days after written request from Tenant to do so, Tenant
may name as such appraiser any such real property manager approved by the
Portland Realty Board. Within 30 days after his appointment, the appraiser shall
return his decision which shall be final and binding upon both parties. The cost
of the appraisal shall be borne equally by both parties.
ARTICLE 5. RENT
5.1. Tenant shall pay to Owner as monthly minimum rent, without deduction
or setoff, sums determined in accordance with this Section 5.1. in advance on
the first day of each month during the term of this lease. Monthly minimum rent
for the first month or portion of it shall be paid on the date the term
commences and shall be prorated for a partial month. If this lease terminates
before the expiration date for reasons other than Tenant's default, monthly
minimum rent shall be prorated to the date of termination and Owner shall repay
to Tenant all monthly minimum rent then prepaid and unearned.
5.1.1. The initial monthly minimum rent shall be $27100.00,
5.1.2. Beginning the first day of the third full month of the term, minimum
monthly rent shall be adjusted up or down as necessary to equal a sum computed
by Owner to be one twelveth of the total of:
5.1.2.1. The product of eleven percent, three dollars and the square foot
area of the Premises (11% x $3.00 x area); and
5.1.2.2. The product of the Actual Cost of Construction and the sum of an
estimated Loan Constant and thirty-five one hundredth (Actual Cost of
Construction x [estimated Loan Constant + .35]).
5.1.3. Beginning the first day of the first full month in which documents
evidencing permanent financing of the Premises are recorded, minimum monthly
rent shall be adjusted up or down as necessary to equal a sum computed by Owner
to be one twelveth of the total of:
5.1.3.1. The product of eleven percent, three dollars and the square foot
area of the Premises (11% x $3.00 x area); and
Page 3 - BUILDING LEASE
8
5.1.3.2. The product of the Actual Cost of Construction and the sum of the
Loan Constant and thirty-five one-hundredth (Actual Cost of Construction x [Loan
Constant + .35]);
5.1.3.3. Owner will not use an affiliated interest for borrowing purposes.
5.1.4. If the permanent financing includes a variable interest rate, the
minimum monthly rent determined under paragraph 5.1.3. shall be adjusted up or
down as necessary to reflect the change in the loan constant occasioned by the
change in interest rate from time to time. Such adjustments shall be effective
on the first day of the first full month in which the new interest rate is in
effect.
5.2. Owner will give Tenant notice of the adjusted minimum monthly rent at
least 30 days in advance of the effective date of the adjustment. Tenant may
review any of Owner's records used by Owner to determine Actual Construction
Cost, bids by contractors, estimated Loan Constant or Loan Constant, including
subsequent adjustments to Loan Constant. Such review shall occur at Owner's
offices during normal business hours unless otherwise agreed by Owner.
5.3. The Actual Cost of Construction shall be the sum of the following:
5.3.1. Payments made to contractors and subcontractors performing
construction work in connection with the building and other improvements to be
constructed on the real property that is a part of the Premises. It is
understood that Owner may utilize contractors and subcontractors that are
affiliated with Owner;
5.3.2. Other costs of onsite and offsite improvements, which are only a
part of the premises.
5.3.3. Fees for building permits, licenses, and inspection;
5.3.4. Fees of engineers, surveyors, architects, attorneys, and others
providing professional or extra services in connection with the construction of
the building and other improvements that are a part of the Premises, or the
supervision of the construction;
5.3.5. Insurance premiums paid by Owner during the construction period that
are not payable by Tenant under this lease;
5.3.6. Premiums for contractor's faithful performance and for mechanics'
xxxx xxxxx;
5.3.7. Costs of bringing utilities to the Premises, including, without
limitation, connection service fees;
Page 4 - BUILDING LEASE
9
5.3.8. Interest paid by Owner on interim financing for the construction.
The interest shall not exceed the prime lending rate plus 1%;
5.3.9. Xxxxxx's fees for interim and permanent financing, including,
without limitation, takeout and standby fees and points with respect to
permanent financing;
5.3.10. Costs to Owner for mortgage brokerage fees in connection with
interim and permanent financing;
5.3.11. Recording costs and filing fees;
5.3.12. Fees for foundation, topographic survey and engineering reports
reasonably necessary for construction on the real property that is a part of the
Premises.
5.3.13. Costs of grading and filling in connection with the Premises; and
5.3.14. Such other costs as reasonably may be incurred by Owner in
connection with the construction of the real property that is a part of the
Premises.
5.3.15. Tenant shall have the right to approve all bids and change orders
unless waived by Tenant prior to acceptance.
5.3.16. If Owner is the general contractor, Owner shall not charge fees for
Owner's personnel or overhead not directly affiliated with the construction.
Prior to the time the minimum monthly rent is adjusted under paragraph
5.1.3. (permanent financing), any of the items of cost that are not finally
ascertainable shall be based upon Owner's reasonable estimate and agreed to by
the Tenant. All other items shall be based upon actual costs.
5.4. The Loan Constant shall be the annual cost of each dollar financed by
permanent financing based upon the interest rate and amortization period of the
permanent financing as determined from standard loan constant tables. Permanent
and interim financing may include other property in the Xxxxxx Xxxxxxx Shopping
Center in addition to a part or all of the real property that is a part of the
Premises. For the purpose of determining minimum monthly rent under paragraph
5.1.2. the Loan Constant shall be estimated by Owner based upon Owner's
judgement of the Loan Constant that would be realized if permanent financing
were obtained at that time, provided that if Owner has obtained a permanent
financing committment the terms of the committment shall establish the estimated
Loan Constant.
5.5. Tenant shall pay to Owner as percentage rent a sum equivalent to 1.5%
of the Gross Receipts as defined in Article 6 in excess of $10,000,000 for a
lease year.
Page 5 - BUILDING LEASE
10
Percentage rent shall be paid annually commencing on the 45th day after the
conclusion of the first lease year and the 45th day of each lease year
thereafter. The last payment of percentage rent shall be made on the 45th day
after the expiration or termination of the term of this lease and shall be for a
rent period ending on the last day of the lease term.
5.6. For the purpose of computing the amounts payable as percentage rent
for the first lease year, the Gross Receipts received during the first partial
month, if any, shall be added to the Gross Receipts for the first lease year.
The amount of the last payment of percentage rent, if for less than a full lease
year, shall be a sum equivalent to the percentage designated above reduced
proportionate to the number of months remaining to complete a full lease year.
5.7. Rent shall not be paid more than 90 days in advance of the times
provided for payment in this lease.
5.8. All rent and other sums payable by Tenant to Owner under this lease
shall bear interest at the rate of 9% per annum from the date due until paid.
ARTICLE 6. GROSS RECEIPTS DEFINED
6.1. The term "Gross Receipts" as used in this lease means receipts from
gross sales of Tenant and of all licensees, concessionaires and tenants of
Tenant, from all business conducted upon or from the Premises by Tenant and by
all licensees, concessionaires and tenants of Tenant, and whether such sales be
evidenced by check, credit, charge account, exchange or otherwise, and shall
include, but not be limited to, the amounts received from the sale of goods,
wares and merchandise and for services performed on or at the Premises, together
with the amount of all orders taken or received at the Premises, whether such
orders be filled from the Premises or elsewhere, and whether such sales be made
by means of merchandise or other vending devices in the Premises.
6.2. Gross sales shall not include sales of tobacco products. Gross sales
shall not include sales of merchandise for which cash has been refunded, and
allowances made on merchandise claimed to be defective or unsatisfactory may be
deducted from gross sales to the extent they have been included in gross sales;
and there shall be deducted from gross sales the sales price of merchandise
returned by customers for exchange, provided that the sales price of merchandise
delivered to the customer in exchange shall be included in gross sales. Gross
Receipts shall not include the amount of any sales, use or excise tax imposed by
any federal, state, municipal or governmental authority directly on gross sales
and collected from customers, provided that the amount thereof is added to the
selling price or absorbed therein, and paid by the Tenant to such governmental
authority. Layaway sales shall be treated as a cash
Page 6 - BUILDING LEASE
11
sale whenever cash is received. No franchise or capital stock tax and no income
or similar tax based upon income or profits as such shall be deducted from gross
receipts in any event whatever for purposes of this computation. Each charge or
sale upon installment or credit shall be treated as a sale for the full price in
the month during which such charge or sale shall be made, irrespective of the
time when Tenant shall receive payment (whether full or partial) therefor. Gross
Receipts shall include any discount paid or payable to any firm or person for
the use of any credit system.
ARTICLE 7. RECORDS AND REPORTING
7.1. For the purpose of ascertaining the amount payable as rent, Xxxxxx
agrees to prepare and keep at its central office for a period of not less than
two years following the end of each lease year adequate records which shall
include a record of inventories and receipts of merchandise at the Premises, and
daily detailed tabulations of all Gross Receipts and other transactions on or
from the Premises by Tenant and any licensees, concessionaires and tenants of
Tenant conducting any business upon or from the Premises. Tenant shall record at
the time of sale, in the presence of the customer, all receipts from sales or
other transactions whether for cash or credit in a cash register or in cash
registers having a cumulative total which shall be sealed in a manner approved
by Owner, and having such other features as shall be reasonably required by
Owner to effectuate the accurate tabulation of Gross Receipts. Xxxxxx further
agrees to keep at its central office for at least two years following the end of
each lease year the gross income, sales and occupation tax returns with respect
to said lease years and all pertinent original sales records. Pertinent original
sales records shall include: (a) cash register tapes, including tapes from
temporary registers; (b) serially numbered sales slips; (c) the originals of all
mail orders at and to the Premises; (d) the original records of all telephone
orders at and to the Premises; (e) settlement report sheets of transactions with
tenants, concessionaires and licensees of Tenant; (f) memorandum receipts or
other records of merchandise taken out on approval; (g) such other sales
records, if any, which would normally be examined by an independent accountant
pursuant to accepted auditing standards in performing an audit of Tenant's
sales; and (h) the records specified in (a) and (g) above of tenants,
concessionaires or licensees of Tenant. Owner and Owner's authorized
representative shall have the right to examine Xxxxxx's records aforesaid during
regular business hours.
7.2. Tenant shall submit to Owner on or before the day specified in Section
5.5. for payment of percentage rent at the place then fixed for the payment of
rent, a written statement signed by Xxxxxx, and certified by Tenant to be true
and correct showing in reasonably accurate detail, satisfactory in scope to
Owner, the amount of Gross Receipts during the preceding lease year, which
certification shall be one which is satisfactory to Owner in scope and
substance. The statements referred to
Page 7 - BUILDING LEASE
12
herein shall be in such form and style and contain such details and breakdown as
the Owner may reasonably request.
7.3. The acceptance by the Owner of payments of percentage rent shall be
without prejudice to the Owner's right to an examination of the books and
records required to be kept by Tenant hereunder at the Premises in order to
verify the amount of Gross Receipts reported by Xxxxxx.
7.4. At its option, owner may cause, at any reasonable time upon 15 days
prior written notice to Xxxxxx, a complete audit to be made of Tenant's business
affairs and records relating to the Premises for the period covered by any
reporting period of the Tenant as above described. If such audit shall disclose
a liability for rent to the extent of five percent or more in excess of the
rentals theretofore reported and paid by Tenant for the period or periods in
question, Tenant shall promptly pay to Owner the cost of said audit in addition
to the deficiency, which deficiency shall be payable in any event. Any
information obtained by the Owner as a result of such audit shall be held in
strict confidence by Owner to the extent permitted by law.
ARTICLE 8. TAXES AND INSURANCE
8.1. Beginning on the date that monthly minimum rent begins and continuing
during the term of this lease, Tenant shall pay all real estate taxes and
assessments which may be levied or assessed against the leased premises. Taxes
and assessments for fractional calendar years of the lease term, being the first
and last years, shall be prorated between Owner and Tenant on a daily basis. The
amount of taxes payable by Tenant shall be determined as follows:
8.1.1. Owner shall make every reasonable effort to have the leased
premises, and the land thereunder, segregated and taxed separately, in which
case Tenant shall pay the real estate taxes and assessments directly to the
taxing authority when due and before delinquency. Tenant shall promptly furnish
Owner with copies of receipts evidencing such payments.
8.1.2. In the event the Owner is unable, after reasonable effort, to have
the leased premises segregated and taxed separately and the premises are a part
of a larger parcel of real property which is assessed as one property for real
property tax purposes, Owner shall pay the real estate taxes and assessments on
the leased premises and Tenant shall reimburse Owner for the proportionate share
of the taxes so paid within ten (10) days after Owner presents to Tenant
evidence of Owner's payment of the same and Owner's calculation of Xxxxxx's
proportionate share of said taxes. Tenant's proportionate share of said taxes
and assessments shall be the taxes and assessments attributable to the leased
premises and the land thereunder, and shall be computed as follows:
Page 8 - BUILDING LEASE
13
8.1.2.1. If the taxing authority will supply a breakdown of the assessment,
providing an assessed valuation of the leased premises separately, then the
figures of the taxing authority shall be conclusive and Tenant's proportionate
share of the taxes and assessments shall be that portion of the total taxes and
assessments paid as the assessed valuation of the leased premises and the land
thereunder bears to the total assessed valuation of the larger parcel.
8.1.2.2. If no breakdown of the assessment can, after reasonable effort, be
obtained from the taxing authority, then Tenant shall reimburse Owner for a
portion of the taxes so paid, said portion being determined by the following
formula:
A x T x [C + E] = P
----- --- ---
B [D F]
where:
A equals the area of the leased premises
T equals the total taxes paid on the larger parcel B equals the
total assessed valuation of the larger parcel
C equals the total assessed valuation of all improvements on the
larger parcel
D equals the total area of all buildings and structures on the
larger parcel
E equals the total assessed valuation of all the land (without
improvements) on the larger parcel
F equals the total area of land on larger parcel
P equals Xxxxxx's portion of the taxes attributable to the leased
premises
8.2. If local improvement district assessments or other special assessments
may be paid in annual installments, Tenant shall pay only such annual
installments as may be due and payable during the term of this lease, prorated
to the term of this lease on a daily basis.
8.3. Tenant shall pay to Owner the annual cost of any fire and extended
coverage insurance maintained by Owner on the Premises. Such payment shall be
made within thirty days of notice given by Owner to Tenant of the amount of such
insurance cost. If Tenant can insure for less than Owner's cost of insurance
Tenant will then use its own insurance carrier to insure the premises. The
insurance coverage will be the same as Owner's policy.
Page 9 - BUILDING LEASE
14
8.4. If at any time during the term of this lease the State of Oregon or
any political subdivision of the state, including any county, city, city and
county, public corporation, district or any other political entity or public
corporation of this state levies or assesses against Owner a tax, fee or excise
on rents, on the square footage of the premises, on the act of entering into
this lease or on the occupancy of Tenant, or any other tax, fee, or excise,
however described, as a direct substitution in whole or in part for, or in
addition to, any real property taxes, Tenant shall pay before delinquency that
tax, fee or excise on rents. Tenant's share of any such tax, fee or excise shall
be substantially the same as Tenant's proportionate share of Real Property Taxes
as provided in this lease.
ARTICLE 9. USE OF PREMISES
9.1. Tenant shall use the Premises solely for the purpose of conducting the
business of general retail sales. Tenant will not use, or permit the use of, the
Premises for any other business or purpose.
ARTICLE 10. OPERATION OF BUSINESS AND OBLIGATION TO OPERATE
10.1. Tenant shall maintain and operate the business during the entire term
of this lease with due diligence and in a first-class, top-flight manner, so as
not only to produce the maximum rent to Owner under the percentage rent
provisions hereof from Tenant's operation and the operations of other tenants of
Owner at Xxxxxx Xxxxxxx but also to maintain and enhance property values for all
property owned by Owner at Xxxxxx Xxxxxxx. Subject to inability by reason of
strikes or labor disputes, Tenant shall carry at all times in the Premises a
stock of merchandise of such size, character and quality as is customary for
such type of business in the Portland Metropolitan area as shall be reasonably
designed to produce maximum sales.
ARTICLE 11. STORAGE, OFFICE SPACE
11.1. Tenant shall warehouse, store or stock in the Premises only such
goods, wares and merchandise as Tenant intends to offer for retail sale at, in,
from or upon the Premises. This shall not preclude occasional emergency
temporary transfer of merchandise from or to the other stores of Tenant, if any,
not located in the Xxxxxx Xxxxxxx. Tenant shall use for office, clerical or
other non-selling purposes only such space in the Premises as is from time to
time reasonably required for Tenant's business in the Premises. No auction, fire
or bankruptcy sales may be conducted in the Premises without the previous
written consent of Owner.
Page 10 - BUILDING LEASE
15
ARTICLE 12. PARKING AREAS
12.1. The Owner reserves to itself and its other tenants and visitors to
Xxxxxx Xxxxxxx, the right to use for parking purposes that portion of the
demised premises designated for parking provided that Tenant shall have priority
over the use thereof in the event of any conflicts of use. Tenant may utilize
parking areas of Owner or other tenants on other property on Xxxxxx Xxxxxxx,
provided that Owner shall have priority over the use thereof in the event of any
conflicts of use.
ARTICLE 13. FIXTURES
13.1. Tenant shall not make nor cause to be made any alterations, additions
or improvements to the Premises, including the store front, nor install nor
cause to be installed on the demised premises any trade fixtures, exterior
signs, floor covering, interior or exterior lighting, plumbing fixtures, shades
or awnings or other fixtures without first obtaining Owner's written approval
and consent. Tenant shall present to the Owner plans and specifications for such
work at the time approval is sought. All alterations, additions and improvements
made by Tenant, or made by the Owner on the Tenant's behalf by agreement under
this lease and all fixtures, of whatever kind or type, (except moveable trade
fixtures) shall become and remain the property of Owner upon installation
thereof and shall be surrendered to Owner upon the expiration or termination of
this lease.
ARTICLE 14. SIGNS, AWNINGS AND CANOPIES
14.1. Tenant will neither place nor suffer to be placed or maintained on
any exterior door, wall or window of the Premises any sign, decoration, awning
or canopy, or advertising matter or other thing of any kind, or place or
maintain any decoration, lettering or advertising matter on the glass of any
window or door of the demised premises unless placed in a reasonable manner
consistent with its merchandising programs in other G.I. Joe's stores. Tenant
further agrees to maintain such sign, awning, canopy, decoration, lettering,
advertising matter or other thing as may be approved in good condition and
repair at all times.
ARTICLE 15. TENANT SHALL DISCHARGE ALL LIENS
15.1. Tenant shall pay all costs for construction done by it or caused to
be done by it on the Premises as permitted by this lease. Tenant shall keep the
premises free and clear of all construction liens resulting from construction
done by or for Tenant.
15.2. Tenant or Owner shall have the right to contest the correctness or
the validity of any such lien.
Page 11 - BUILDING LEASE
16
ARTICLE 16. MAINTENANCE BY TENANT
16.1. Tenant shall at all times keep the Premises (including maintenance of
exterior entrances, parking area, all glass and show window moldings), except
for structural portions thereof which Owner shall maintain, and all partitions,
doors, fixtures, trade fixtures, equipment and appurtenances thereof (including
lighting, heating and plumbing fixtures, and any heating, ventilating and air
conditioning system) in good order, condition and repair (including periodic
painting as reasonably determined by Owner), damage by fire or unavoidable
casualty alone excepted. If owner is required to make repairs to structural
portions by reason of Xxxxxx's negligent acts or omission to act, Owner may add
the cost of such repairs to the rent which shall become due upon billing by
Owner therefor. Owner's obligation to maintain the structural portions of the
Premises is intended solely to fix financial responsiblity for structural repair
but Tenant shall be obligated to inspect and notify Owner of structural defects.
16.2. If Tenant refuses or neglects to repair property as required
hereunder to the reasonable satisfaction of Owner as soon as reasonably possible
after written demand, Owner may make such repairs without liability to Tenant
for any loss or damage that may accrue to Tenant's merchandise, fixtures, or
other property or to Tenant's business by reason thereof, and upon completion
thereof, Tenant shall pay Owner's costs for making such repairs, upon
presentation of a bill therefor. Tenant's obligation to repair is absolute and
not conditioned upon Owner's notice as above provided.
ARTICLE 17. SURRENDER OF PREMISES
17.1. At the expiration or termination of the lease Tenant shall surrender
the Premises in the same condition as Xxxxxx is required to maintain same
hereunder broom clean, reasonable wear and tear and damage by fire and
unavoidable casualty alone excepted, and shall surrender all keys for the
Premises to Owner at the place then fixed for the payment of rent and shall
inform Owner of all combinations on locks, safes and vaults, if any, in the
Premises. Tenant shall remove all of its personal property and moveable trade
fixtures before surrendering the Premises as aforesaid and shall repair any
damage to the Premises caused thereby. Tenant's obligation to observe or perform
this condition shall survive the expiration or other termination of the term of
this lease.
ARTICLE 18. RULES AND REGULATIONS
18.1. The rules and regulations that are presently adopted by Owner as
described by Exhibit "C", are made a part of this lease. Xxxxxx agrees to comply
with and observe the same. Xxxxxx's failure to keep and observe said rules and
regulations
Page 12 - BUILDING LEASE
17
shall constitute a breach of the terms of this lease in the same manner as if
they were contained herein as conditions. Owner reserves the right from time to
time to revoke, amend or supplement said rules and regulations and to adopt and
promulgate additional rules and regulations applicable to the Premises and the
Shopping Center.
ARTICLE 19. INDEMNIFICATION AND LIABILITY INSURANCE
19.1. Xxxxxx agrees to indemnify and save Owner harmless from all claims
and demands of any and every character that may be made, presented, or allowed
against Owner by reason or on account of any injuries or damage received or
sustained from the date hereof by any person or property arising out of or
related to any activity of Tenant on the Premises, or any condition of the
Premises in the possession of or under the control of Tenant excluding any such
claim, loss or liability which may be solely caused by or attributed to by
Owner's negligence or failure to effect any repair or maintenance required by
this lease; and in the event that any suit or action for damages resulting
therefrom shall be brought against Owner by any person whomsoever, Xxxxxx agrees
at Xxxxxx's own cost and expense to defend owner against any such suit or action
and all appeals therefrom, to satisfy and discharge any judgment or decree that
may be awarded against Owner in any such proceeding, and to pay all costs,
expenses and reasonable attorney fees incurred on any appeal in such litigation.
19.2. Tenant shall, at its own cost and expense, procure and maintain in
effect during the entire term of this lease public liability and property damage
insurance against liability for injuries to persons and property with respect to
the Premises and the business operated by Tenant and by any Licensees,
concessionaires and tenants of Tenant, with a single limit of $1,000,000 for any
one occurrence. Such insurance policy or policies of Tenant shall also include
products liability coverage protecting Owner and Tenant against any and all
claims of patrons, employees, laborers, and any other person arising out of
merchandise, food, products, or other property sold, served or prepared by
Tenant or employees, licensees, concessionaires or tenants of Tenant.
19.3. The policy or policies shall name Owner and any persons, firms, or
corporations designated by Owner as additional insureds and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving Owner ten days prior written notice. The insurance shall be in an
insurance company approved by Owner and Tenant shall file with Owner original or
certified copies of such insurance policies or certificates of insurance showing
that the required coverage conforming with the foregoing is afforded under
blanket policies. Owner may require Tenant to increase the aforesaid maximum
limit of coverage to keep pace with the trend in insurance coverage during the
term of this lease.
Page 13 - BUILDING LEASE
18
ARTICLE 20. FIRE AND OTHER CASUALTY
20.1. If the Premises are less than fifty percent destroyed by fire or
other casualty, the property shall be repaired as follows:
20.1.1. If the damage is caused by a risk which would be covered by a
standard fire insurance policy with an endorsement for extended coverage, repair
shall be at the expense of the Owner whether or not the damage occurred as a
result of fault on the part of Tenant or the licensees, concessionaires or
tenants of Tenant.
20.1.2. If the damage occurred from a risk which would not be covered by
insurance of the kind described in paragraph 20.1.1. above, repairs shall be at
the expense of the Owner unless the damage was the result of the fault of Tenant
or the licensees, concessionaires or tenants of Tenant, in which case Tenant
shall have the obligation to repair.
20.1.3. The monthly minimum rent provided for under Section 5.1. shall be
partially abated in proportion to the extent of the Premises rendered
untenantable subsequent to the damage and during the period of repair except
when damage occurs because of the fault of Tenant or the licensees,
concessionaires or tenants of Tenant.
20.2. If the Premises are fifty percent or more destroyed by fire or other
casualty, the parties shall proceed as follows:
20.2.1. Owner may elect to terminate the lease as of the date of the damage
or destruction by notice given to Tenant in writing not more than 60 days
following the date of damage.
20.2.2. If Owner shall not elect to terminate as provided in said paragraph
20.2.1. above, Owner shall proceed to restore the Premises to substantially the
same form as prior to the damage or destruction so as to provide for Tenant
useable space similar in quantity and character to that before the damage.
20.2.3. In either event, the minimum monthly rent provided for in Section
5.1. shall be abated from the date of damage except when the damage occurs
because of the fault of the Tenant or the licensees, concessionaires or tenants
of Tenant and the Owner elects to rebuild.
20.3.1. Repairs required by either party under this Article shall be
accomplished with all reasonable dispatch and both parties shall cooperate with
each other to effectuate repair and restoration. The party charged with the duty
of rebuilding shall not be liable or responsible for any delays in rebuilding or
repairing due to strikes, riots, acts of God, national emergency, acts of public
enemy, governmental laws or regulations, inability to procure materials or labor
or both, or any causes beyond its control.
Page 14 - BUILDING LEASE
19
20.3.2. Unless specifically stated, nothing in this Article shall be
construed to permit the abatement in whole or in part of any rent provided for
in this lease.
20.3.3. Tenant shall obtain broad form boiler insurance naming Owner as an
additional insured if the Premises contain improvements that are normally the
subject of such insurance.
20.3.4. The Tenant agrees that it will not keep, use, sell or offer for
sale in or upon the Premises any article which may be prohibited by the standard
form of fire insurance policy with extended coverage insurance. Tenant agrees to
pay any difference between the rate of premiums for fire and extended coverage
insurance which may be carried by Owner on the Premises resulting from the use
of the Premises made by Tenant, whether or not Owner has consented to the same,
and the rate charged for such insurance for the least hazardous type of
occupancy legally permitted in the Premises. In the determination of whether
increased premiums were the result of Tenant's use of the Premises, a schedule,
issued by the organization making the insurance rate of the Premises, showing
the various components of such rate, shall be conclusive evidence of the several
items and charges which make up the fire insurance rate on the Premises.
ARTICLE 21. PLATE GLASS
21.1. Tenant shall replace, at the expense of Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the
Premises.
ARTICLE 22. EMINENT DOMAIN
22.1. The term "takes by (or taken or taking by) eminent domain" shall
include the exercise of any power of condemnation, whether by public authority
or private corporation and any purchase or other acquisition in lieu of
condemnation. The expression "date of taking" means the date the order
adjudicating public use becomes final or the date the authority exercising its
right of "eminent domain" shall agree to the purchase price in lieu of
condemnation.
22.2. If a condemning authority takes by eminent domain all of the Premises
or a portion thereof sufficient to render the remaining premises reasonably
unsuitable for the use which Tenant was then making of the Premises, the term of
the lease shall terminate as of the date of taking. Neither Tenant, nor the
licensees, concessionaires or tenants of Tenant shall have any claim against
Owner or the condemning authority for the value of any unexpired term of this
lease.
Page 15 - BUILDING LEASE
20
22.3. If a portion of the Premises is taken by eminent domain which is not
extensive enough to render the Premises unsuitable for the business of Tenant,
then Owner shall promptly restore the Premises to a condition comparable to its
condition on the date of taking less the portion lost in the taking, and this
lease shall continue in full force and effect without any reduction or abatement
of rent.
22.4. Although all damages in the event of any condemnation are to belong
to the Owner whether such damages are awarded as compensation for diminution in
value of the leasehold or to the fee of the leased premises, tenant shall have
the right to claim and recover from the condemning authority, but not from
Owner, such compensation as may be separately awarded or recoverable by Xxxxxx
in Tenant's separate right on account of any and all damage to Tenant's business
by reason of the condemnation and for or on account of any cost or loss to which
Tenant might be put in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment.
ARTICLE 23. WORKMEN'S COMPENSATION
23.1. Tenant shall procure such Workmen's Compensation Insurance as is
required by Oregon law and shall promptly pay the premiums therefor. If Owner is
required to remove any lien for Tenant's failure to pay such premiums, Owner, in
addition to its other remedies, may discharge such lien, and charge Tenant
therefor as additional rent.
ARTICLE 24. UTILITIES AND GARBAGE
24.1. Tenant shall be solely responsible for and promptly pay all charges
for garbage collection services, heat, water, sewer, gas, electricity or any
other utility used or consumed in the Premises. Owner has the right to supply
garbage collection services, heat, water, sewer, gas, electricity or any other
utility used or consumed in the Premises. Xxxxxx agrees to purchase and pay for
the same at the rates charged other users on Xxxxxx Xxxxxxx.
ARTICLE 25. SUBORDINATION
25.1. This lease shall be subject and subordinate to any mortgage and to
any extensions or renewals thereof that are now or hereafter may be placed upon
the whole or any part of the Shopping Center and which include the Premises. The
Tenant will execute and deliver any instrument which may be reasonably required
by the Owner in confirmation of such subordination promptly upon the Owner's
request, and without expense to the Tenant and if the Tenant shall fail at any
time to execute and deliver any such subordination, the Owner, in addition to
any other remedy available to it in consequence thereof, may execute and deliver
such instrument as the attorney-in-fact
Page 16 - BUILDING LEASE
21
for that purpose; provided, however, that so long as the Tenant is not in
default in the payment of rent or additional rent or in the performance of any
of the terms of the Lease, Xxxxxx's possession of the Premises and the Tenant's
rights and privileges under the lease or any renewal thereof shall not be
diminished or interfered with by the mortgagee. In the event the mortgage is
foreclosed for any reason and the mortgaged Premises is sold as upon execution
in the manner provided by law, the Tenant shall be bound to the purchaser at
such execution sale under all of the terms of the lease for the balance of the
term thereof remaining with the same force and effect as if such purchaser was
the Owner under the lease, and the Tenant hereby atorns to such purchaser as its
landlord, such atornment to be effective and self-operative without the
execution of any further instrument on the part of either of the parties hereto
immediately upon such purchaser succeeding to the interest of the Owner under
the lease. In the event the mortgage is foreclosed for any reason and during the
pendency of such foreclosure suit, there is appointed by the court a receiver
for the property of which the Premises is a part, Tenant hereby atorns to the
receiver as its landlord during the pendency of such foreclosure proceeding,
such atornment to be effective and self-operative without the execution of any
further instrument on the part of either of the parties hereto immediately upon
the appointment of the receiver and his qualification as such.
25.2. Tenant recognizes that the lease provisions must be approved by the
institutional lender that finances the construction of the building and other
improvements that are a part of the Premises. If, as a condition to financing,
the institutional lender requires modification of the lease provisions, Tenant
shall approve and execute the required modification, other than a modification
that substantially changes the size, dimensions, or location of the building and
other improvements that are a part of the Premises, increases the rent Tenant is
obligated to pay under the lease, or adversely changes any of Tenant's
obligations.
ARTICLE 26. INVOLUNTARY ASSIGNMENT
26.1. No interest of Tenant in this lease shall be assignable by operation
of law (including, without limitation, the transfer of this lease by testacy or
intestacy). Each of the following acts shall be considered an involuntary
assignment:
26.1.1. If Tenant is or becomes bankrupt or insolvent, makes an assignment
for the benefit of creditors, or institutes a proceeding under the Bankruptcy
Act in which Tenant is the bankrupt; or, if Tenant is a partnership or consists
of more than one person or entity, if any partner of the partnership or other
person or entity is or becomes bankrupt or insolvent, or makes an assignment for
the benefit of creditors:
Page 17 - BUILDING LEASE
22
26.1.2. If the interest of Tenant in this lease is sold under execution or
other legal process.
26.1.3. If, in any proceeding or action to which Xxxxxx is a party, a
receiver is appointed with authority to take possession of the Premises.
26.2. An involuntary assignment shall constitute a default by Tenant and
Owner shall have the right to elect to terminate this lease, in which case this
lease shall not be treated as an asset of Tenant.
ARTICLE 27. CONSENT REQUIRED
27.1. Tenant shall not voluntarily assign or encumber its interest in this
lease or in the Premises, or sublease all or any part of the premises, or allow
any other person or entity to occupy or use all or any part of the Premises,
without first obtaining Owner's written consent. Any assignment, encumbrance,
sublease, occupancy or use without consent shall be voidable and, at Owner's
election, shall constitute a default. No consent to any assignment, encumbrance,
sublease, occupancy or use shall constitute a further waiver of the provisions
of this Article.
27.2. Tenant immediately and irrevocably assigns to Owner as security for
Tenant's obligations under this lease, all rent from any assignment, subletting
of all or a part of the Premises, encumbrance, occupancy or use, and Owner, as
assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed
on Owner's application, may collect such rent and apply it toward Tenant's
obligations under this lease; except that, until Owner exercises its option to
declare Tenant in default, Tenant shall have the right to collect rent.
ARTICLE 28. WASTE OR NUISANCE
28.1. Tenant shall permit no damage to or defacement of the Premises nor
shall Tenant commit or suffer to be committed any waste upon the Premises or
permit any nuisance or other act or thing which may disturb the quiet enjoyment
of any other property in the Xxxxxx Xxxxxxx Shopping Center, or which may
disturb the quiet enjoyment of any person outside of the boundaries of the
Xxxxxx Xxxxxxx Shopping Center.
ARTICLE 29. GOVERNMENTAL REGULATIONS
29.1. Tenant shall, at Tenant's sole cost and expense, comply with and
faithfully observe, all of the requirements of all county, municipal, state,
federal and other applicable governmental authorities, now in force, or which
may hereafter be in force, pertaining to the Premises or the use thereof.
Page 18 - BUILDING LEASE
23
ARTICLE 30. ADVERTISING
30.1. Tenant shall spend not less than one percent of Tenants's Gross
Receipts from the premises each lease year in advertising its merchandise or
services and the Premises location in newspapers, magazines, radio, television
or any other advertising media generally used to advertise Tenant's merchandise
or services at Tenant's other locations.
ARTICLE 31. RIGHT OF ENTRY
31.1. Owner or Owner's agents shall have the right to enter the Premises at
all times to examine the same, to make such repairs as Owner may deem necessary
or desirable and Owner shall be allowed to take all material into and upon the
Premises that maybe required therefor without the same constituting an eviction
of Tenant in whole or in part and Tenant specifically hereby waives any claim
for damages for loss of business or otherwise, resulting from such repairs.
Notwithstanding the foregoing, owner shall not materially interferes with
Tenant's operation during any repair of the Premises and if Owner materially
interferes with Tenant's operation during any repair, the minimum monthly rent
provided in Section 5.1. shall be partially abated in proportion to the extent
of the premises rendered untenable during the period of repair.
31.2. During the six months prior to the expiration of the term of this
lease Owner may place upon the Premises the usual "for rent" notices advertising
the availability of the Premises for lease which notices Tenant shall permit to
remain thereon without molestation.
31.3. If Tenant shall not be personally present to open and permit an entry
into the Premises, at any time, when for any reason an entry therein shall be
necessary Owner or Owner's agents may enter the same by a master key, or may
forcibly enter the same, without rendering Owner or such agents liable therefor,
and without in any manner affecting the obligations and covenants of this lease.
Nothing herein contained, however, shall be deemed or construed to impose upon
Owner any obligation, responsiblity or liability whatsoever, for the care,
maintenance or repair of the building or any part thereof, except as otherwise
herein specifically provided.
ARTICLE 32. TAXES ON LEASEHOLD
32.1. Tenant shall be responsible for and shall pay before delinquency all
municipal, county or state taxes assessed during the term of this lease against
any leasehold interest or personal property of any kind, owned by or placed in,
upon or about the Premises by the Tenant.
Page 19 - BUILDING LEASE
24
32.2. If any taxes on Tenant's personal property are levied against Owner
or Owner's property, or if the assessed value of the building and other
improvements in which the Premises are located is increased by the inclusion of
a value placed on Tenant's personal property, and if Owner pays the taxes on any
of these items or the taxes based on the increased assessment of these items,
Tenant, on demand, shall immediately reimburse Owner for the sum of the taxes
levied against Owner or the proportion of the taxes resulting from the increase
in Owner's assessment.
ARTICLE 33. LOSS AND DAMAGES
33.1. Owner shall not be liable for any damage to property of Tenant or of
others located on the Premises, nor for the loss of or damage to any property of
Tenant or of others by theft or otherwise. Owner shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, or other
casualty, falling plaster, steam, gas, electricity, water, rain or snow or leaks
from any part of the Premises or from the pipes, appliances or plumbing works or
from the roof, street or sub-surface or from any other place or by dampness or
by any other cause of whatsoever nature. Owner shall not be liable for any such
damage caused by other tenants or persons in the Premises, caused by occupants
of adjacent property, caused by members of the public, or caused by operations
in construction of any private, public or quasi-public work. Owner shall not be
liable for any latent defect in the Premises or in the building of which they
form a part except for a period of twelve months from the date Tenant takes
possession of the Premises. All property of Tenant kept or stored on the
Premises shall be so kept or stored at the risk of Tenant only and Tenant shall
hold Owner harmless from any claims arising out of damage to the same.
33.2. Each of the parties hereto does hereby waive its entire right of
recovery against the other for any damages caused by an occurrence insured
against by such party, and the rights of any insurance carrier to be subrogated
to the rights of the insured under the applicable policy.
ARTICLE 34. HOLDING OVER
34.1. Any holding over after the expiration or termination of the term
hereof, with the written consent of Owner, shall be construed to be a tenancy
from month to month at the rents herein specified (prorated on a monthly basis)
and shall otherwise be on the terms and conditions herein specified, so far as
applicable, but no such holding over shall be deemed to vest any rights in
Tenant to a renewal of this lease unless specifically agreed to in writing by
Owner.
Page 20 - BUILDING LEASE
25
ARTICLE 35. SUCCESSORS
35.1. This lease shall be binding on and inure to the benefit of the
parties and their successors, assignees, transferees, personal representatives,
heirs, or other persons or entities succeeding lawfully and pursuant to the
provisions of this lease to the rights or obligations of either party.
ARTICLE 36. WAIVER AND CONSENT
36.1. The waiver by Owner of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent hereunder by Owner
shall not be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this lease, other than the failure of Tenant to
pay the particular rental so accepted, regardless of Owner's knowledge of such
preceding breach at the time of acceptance of such rent.
36.2. No covenant, term or condition of this lease shall be deemed to have
been waived by Owner, nor any consent by Owner given, unless such waiver of
consent be in writing by Owner. Owner agrees not to withhold its consent
unreasonably when consent is requested by Xxxxxx pursuant to the terms of this
lease.
ARTICLE 37. ACCORD AND SATISFACTION
37.1. No payment by Tenant or receipt by Owner of a lesser amount than the
rent and other charges herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent and other charges, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Owner may accept such
check or payment without prejudice to Owner's right to recover the balance of
such rent or other charges or pursue any other remedy in this lease provided.
ARTICLE 38. ENTIRE AGREEMENT
38.0. This lease and the Exhibits attached hereto and forming a part hereof
set forth all the covenants, promises, agreements, conditions and understandings
between Owner and Tenant concerning the Premises and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them other than herein set forth. Except as herein otherwise provided,
no subsequent alteration, amendment, change or addition to this lease shall be
binding upon Owner or Tenant unless reduced to writing and signed by them.
Page 21 - BUILDING LEASE
26
ARTICLE 39. NO PARTNERSHIP
39.1. Owner does not, in any way or for any purpose, become a partner of
Tenant in the conduct of its business, or otherwise, or joint venturer or a
member of a joint enterprise with Tenant. The provisions of this lease relating
to the percentage rent payable hereunder are included solely for the purpose of
providing a method whereby the rent is to be measured and ascertained.
ARTICLE 40. NOTICES
40.1. Any notice, demand, request or other instrument which may be or is
required to be given under this lease shall be sent by United States certified
mail, postage prepaid. Notice by mail may be addressed to Owner and to Tenant at
their addresses provided above or such other addresses as they may by written
notice to the other in the manner provided in this Article designate. Notice
sent by United States mail shall be deemed to have been received two days after
it has been deposited in the mails.
ARTICLE 41. USE OF WORDS
41.1. The word "Tenant" shall be deemed and taken to mean each and every
person or party mentioned as a Tenant herein, be the same one or more; and if
there shall be more than one Tenant, any notice required or permitted by the
terms of this lease may be given by or to any one thereof, and shall have the
same force and effect as if given by or to all thereof. The licensees,
concessionaires and tenants of Tenant shall be bound by the covenants and
restrictions imposed upon Tenant notwithstanding the absence of specific
reference to such persons. The titles to the Articles of this lease are not a
part hereof and shall have no effect upon the construction or interpretation of
any part of this lease. The use of the neuter gender or singular number is only
for simplicity in drafting and they shall be deemed a proper reference even
though Owner or Tenant may be an individual, a partnership, a corporation, or a
group of two or more individuals, or corporations.
ARTICLE 42. PARTIAL INVALIDITY
42.1. If any term, covenant or condition of this lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, neither the remainder of this lease, nor the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall be affected thereby and each
term, covenant or condition of this lease shall be valid and be enforced to the
fullest extent permitted by law.
Page 22 - BUILDING LEASE
27
ARTICLE 43. NO OPTION
43.1. The submission of this lease for examination does not constitute a
reservation of or option for the Premises and this lease becomes effective as a
lease only upon execution and delivery thereof by Owner and Tenant.
ARTICLE 44. RECORDING
44.1. Tenant shall not record this lease without the written consent of
Owner, however, upon the request of either party hereto the other party shall
join in the execution of a memorandum or so-called "short form" of this lease
for the purposes of recordation. Said memorandum or short form of this lease
shall describe the parties, the Premises and the duration of this lease and
shall incorporate this lease by reference.
ARTICLE 45. ATTORNEY'S FEES
45.1. In case suit or action shall be brought for an unlawful detainer of
the premises, for the recovery of any rent due under the provisions of this
lease or because of the breach of any other covenant or condition herein
contained on the part of Tenant or of the licensees, concessionaires or tenants
of Tenant to be kept and performed, or if either party shall bring legal
proceedings against the other based on or relating to the terms hereof, the
prevailing party shall be entitled to recover its reasonable attorney's fees in
any such action or proceeding including its reasonable attorney's fees on any
appeal therefrom. Xxxxxx also agrees to pay and discharge all of Owner's costs
and expenses, including Owner's attorney fees, that shall arise from enforcing
any provisions or covenants of this lease, including collection of any rent due,
even though no suit or action is instituted.
ARTICLE 46. OWNER'S LIEN
46.1. If tenant shall default in the payment of rent or any other payment
to be made by Tenant hereunder, Owner shall thereupon have a lien upon the real
and personal property of Tenant located on the Premises for the amount unpaid
and may enter the Premises and take possession of said property and sell the
same at public or private sale in accordance with the Uniform Commercial Code of
Oregon and apply the proceeds of said sale upon indebtedness of Tenant. Any
aforesaid lien shall survive the termination or expiration of this lease. Owner
shall be entitled to all the rights of a secured party under the Uniform
Commercial Code of Oregon.
Page 23 - BUILDING LEASE
28
ARTICLE 47. DEFAULT
47.1. If Tenant shall fail to pay any part of the rent or any other charges
required by it to be paid to Owner, for a period of ten days after notice after
such rent or other charges become due; or if default should be made in any of
the other covenants or conditions on Tenant's part herein contained and such
default is not cured within 30 days after written notice by Owner to Tenant
thereof (or if said default cannot be cured within 30 days, then, if Tenant does
not commence within said 30 day period to attempt to cure said default and
thereafter proceed with due diligence with the curing of the same), Owner shall
have the following rights and remedies, which are cumulative and in addition to
any other rights and remedies provided by law.
47.1.1. Owner shall have the immediate right of re-entry and may remove all
persons and property from the Premises, and such property may be removed and
stored in a public warehouse or elsewhere at the cost of, and for the account of
Tenant, and Owner may sell the same at public or private sale and apply the
proceeds of said sale upon unpaid rent, taxes, or insurance of Tenant owed to
Owner, all without service of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby. In the event of such resumption of possession under
this lease or by summary proceedings or any other means, the Owner may
dispossess and remove all persons and property from the Premises, without any
liability either in law or equity for any damage caused thereby.
47.1.2. Owner may from time to time, without terminating this lease, relet
for the account of Tenant the Premises or any part thereof to any person, firm
or corporation upon such term and for such length of time, whether lesser or
greater than the unexpired portion of the lease term, as Owner may reasonably
provide, with the right to the Owner to put the Premises in reasonably good
order and condition and to make alterations and repairs reasonably required for
said reletting at Tenant's expense. Owner shall receive such rentals for the
Premises applying them, first to the payment of the expense of recovering
possession of the Premises and the re-renting thereof, together with such
expenses as Owner may have incurred in putting the Premises in good condition or
in making alterations and repairs, and then to the payment of the rent due by
this lease and to the fulfillment of the covenants and conditions of Tenant; the
balance, if any, to be paid over to Tenant. If such rentals received from
reletting during any month be less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any such deficiency to Owner. Such deficiency
shall be calculated and paid monthly. For the purposes of this paragraph 47.1.2.
and 47.1.3. the rent reserved in this lease shall be deemed to be monthly rent
arrived at by adding to the monthly minimum rent (Section 5.1.) an amount equal
to the monthly average of all the percentage rent (Sections 5.5. and 5.6.),
taxes and insurance (Article 8) received by
Page 24 - BUILDING LEASE
29
or payable to Owner hereunder during the last preceding full lease year or if
the Tenant has not conducted business in the Premises for a full lease year,
then during the period that Tenant was conducting its business in the Premises.
Owner shall use its reasonable efforts to relet the Premises at the reasonable
rental value or as near thereto as is then reasonably possible under all the
circumstances then existing. No such re-entry or taking possession of the
Premises by Owner shall be construed as an election on its part to terminate
this lease unless a written notice of such intention be given to Tenant or
unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Owner may at any time
thereafter elect to terminate this lease for such previous breach.
47.1.3. Should Owner at any time terminate this lease for any breach, in
addition to any other remedies it may have, it may recover from Tenant all
damages it may incur by reason of such breach, including all sums then due from
Tenant pursuant to the provisions of this lease, the cost of recovering the
Premises, reasonable attorney's fees, and including the worth at the time of
such termination of the excess, if any, of the amount of rent reserved in this
lease for the remainder of the lease term over the then reasonable rental value
of the Premises for said period, all of which shall be immediately due and
payable from Tenant to Owner. "Worth at the time of such termination" shall mean
the sum of such net periodic payment after each payment is reduced by an amount
equal to six percent per annum simple interest to the due date of such payment
hereunder.
47.2. Owner shall not be deemed to be in default in the performance of any
of its obligations under this Lease until Owner shall have failed to perform an
obligation (except in the event of any emergency or material interference with
Tenant's business) within 30 days, or such additional time as is reasonably
required to correct such default, after notice in writing by Tenant to Owner
particularly specifying the nature of the default, provided, however, that if on
account of any breach by Owner of any of the provisions hereof, Tenant is
physically ejected from all or part of the Premises, or is restricted from the
use of all or any material part of the Premises, Owner shall not in any event
have more than five days within which to cause Tenant to be restored to
possession of the Premises or to the use of the Premises.
ARTICLE 48. DEFINITIONS
As used in this lease the following words and phrases shall have the
following meanings:
48.1. Expiration - the coming to the end of the time specified in Section
3.1. of this lease as its duration.
Page 25 - BUILDING LEASE
30
48.2. Lease year - a consecutive twelve month period. The first lease year
shall commence on the date of commencement of the lease term unless such date is
not the first day of a month in which case the first lease year shall commence
on the first day of the month immediately following the month in which the lease
term commences. Succeeding lease years shall commence on the anniversary of the
first day of the first lease year. The last lease year shall end on the date the
term expires or terminates.
48.3. Month - a calendar month.
48.4. Term - the period of time during which Xxxxxx has a right to occupy
the Premises.
48.5. Termination - the ending of the term for any reason before
expiration.
Executed by the Owner and Tenant on the date first above written.
OWNER TENANT
XXXXXX XXXXXXX, a joint venture G.I. JOE'S, INC., an Oregon corporation
By: /s/ By: /s/
------------------------------- -------------------------------
vice-president
By: /s/ By: /s/
------------------------------- -------------------------------
Asst Sec sec/treas.
Page 26 - BUILDING LEASE
31
HAYDEN ISLAND INC.
Highway 5 at Xxxxxxx Beach
000 X. XXXXXXXX XXXXXX XXXXX x XXXXXXXX, XXXXXX 97217 o PHONE 000-0000
January 5, 1981
Xx. Xxxxx Xxxxxx, President
G.I. Joe's, Inc.
0000 X. Xxxxxxxxx
Xxxxxxxx, Xxxxxx 00000
RE: FIRST MODIFICATION TO LEASE
Dear Xxxxx:
With reference to the lease between XXXXXX XXXXXXX and G.I. XXX'S, INC. dated
October 9, 1980, the following constitutes the proposed modifications to the
lease:
1. ARTICLE 3. - TERM
3.2. Upon the request of either party following commencement of the term,
the parties shall immediately execute an amendment to this lease stating
the date of commencement of the term.
The lease term shall commence on February 1, 1982.
If this modification meets with your understanding, please indicate your
acceptance with your signatures in the spaces provided below.
Accepted on the 20 day of January, 1982.
OWNER TENANT
XXXXXX XXXXXXX G.I. JOE'S, INC.
By: /s/ By: /s/
------------------------------- -------------------------------
vice-pres sec/trea.
By: /s/ By: /s/
------------------------------- -------------------------------
asst corp. secretary
32
HAYDEN ISLAND INC.
Highway 5 at Xxxxxxx Beach
000 X. XXXXXXXX XXXXXX XXXXX x XXXXXXXX, XXXXXX 97217 o PHONE 000-0000
February 9, 1983
Xx. Xxxxx Xxxxxx
G. I. Joe's, Inc.
0000 X. Xxxxxxxxx
Xxxxxxxx, Xxxxxx 00000
RE: SECOND MODIFICATION TO LEASE
Dear Xxxxx:
With reference to the lease between XXXXXX XXXXXXX and G. I. XXX'S, INC., dated
October 9, 1980, the following constitutes the proposed modifications to the
lease:
1. ARTICLE 25. SUBORDINATION:
Notwithstanding any other provision in this agreement, no modification or
cancellation of this lease shall be valid or enforceable, unless such
modification or cancellation has been approved in writing by the lender
providing the financing for the building and other improvements that are a
part of the Premises.
If the modification meets with your understanding, please indicate your
acceptance with your signature in the space provided below.
Accepted on this 9 day of February, 1983.
OWNER TENANT
XXXXXX XXXXXXX G.I. JOE'S, INC.
By: /s/ By: /s/
------------------------------- -------------------------------
vice-pres
33
LEASE AMENDMENT
Xxxxxx Xxxxxxx, a joint venture, as "Owner" and G.I. Xxx's, Inc., as
"Tenant" under that lease dated October 9, 1980 and modified on January 20, 1982
and February 9, 1983, of certain premises in Portland, Oregon, hereby agree to
amend the lease in consideration of the mutual promises herein, as follows:
1. Sections 5.1, 5.2, 5.3 and 5.4 are deleted in their entirety and
replaced with the following:
"5.1 Tenant shall pay to Owner as monthly minimum rent, without
deduction or setoff, in advance on the first day of each month during
the term of this lease, the sum of $26,118.52. If this lease
terminates before the expiration date for reasons other than Tenant's
default, monthly minimum rent shall be prorated to the date of
termination and Owner shall repay to Tenant all monthly minimum rent
then prepaid and unearned."
2. This lease amendment shall be effective beginning the first day of
December, 1987. Executed on the dates stated below.
XXXXXX XXXXXXX, a G.I. JOE'S, INC., an
joint venture Oregon corporation
By: Hayden Corporation, partner By: /s/ XXXXX XXXXXXX
By: /s/ X. XXXXXX XXXXX --------------------------
--------------------------- Xxxxx Xxxxxxx
H. Xxxxxx Xxxxx Secretary-Treasurer
Senior Vice-President
Date: 11/18/87 Date: 11/17/87
----------------------------- ------------------------
34
G. I. XXX RENT CALCULATION
Based on five year loan at 13% interest with 30 year amortization.
Current cost (subject to audit $1,600,000
(1) Known added cost due to permanent loan:
Loan fee @ 1 1/2% 24,000
ALTA Title Insurance 3,800
Survey 400
Filing & Legal 1,200
MAI Appraisal 2,525
----------
Total Cost used prior to Audit. $1,631.925
Debt Constant = 13.28 + .35 = 13.63
163.63 X $1,631,925 = $222,431.37
Land Rent 95,459.00
Annual Minimum Rent $317,890.37 / 12 = $26,490.86
(1) Loan amount is $3,200,000 and these charges are based on 50% of the
anticipated and/or agreed upon charges.
00
XXXXXX XXXXXXX
000 Xxxxxxxx - Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 (000) 000-0000
(000) 000-0000 FAX
FOURTH LEASE AMENDMENT AND EXTENSION
XXXXXX XXXXXXX, a joint venture, as "Owner" and GI XXX'S, INC., as "Tenant"
under that certain lease dated October 9, 1980 at Portland, Oregon and modified
by written agreement January 20, 1982, February 9, 1983 and December 1, 1987 do
hereby agree to further amend and extend said lease in consideration of the
mutual promises herein, as follows:
1. Article 46 is amended to allow placement by Tenant of a Security
Agreement with Bank of America in an amount not to exceed $23,500,000.00
2. The term of the lease is extended to expire at 12:01am August 1, 2008
All other terms and conditions of the lease as written and as previously
amended to remain as agreed.
This Fourth Lease Amendment and extension shall become effective as of this
date of execution, 22 day of July 1993.
Xxxxxx Xxxxxxx, a joint venture GI Joe's, Inc., an Oregon
Xxxxxxx Land Partnership Corporation
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- --------------------------
Xxxxxx X. Xxxxx, Pres. XXXXX X. XXXXXX, CHRM.
D. Park Corp., Managing Partner
Date: July 22 1993 Date: July 23 1993
00
XXXXXX XXXXXXX
000 Xxxxxxxx - Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 (000) 000-0000
(000) 000-0000 FAX
FIFTH LEASE AMENDMENT
IT IS XXXXXX AGREED between Xxxxxx Xxxxxxx, a joint venture "Owner" and GI
Xxx's, Inc., "Tenant" under that certain lease dated October 9, 1980 as amended
January 20, 1982, February 9,1983 December 1,1987 and July 23, 1993, be further
amended as follows:
1. Article 5.5 Percentage Rent be amended for a period of 5 years
beginning February 1, 1994 and ending January 31, 1999 wherein percentage rent
due Owner on gross sales in excess of $15,000,000.00 to and including
$20,000,000.00 be excluded from payment to Owner. Gross sales less than
$15,000,000.00 and in excess of $20,000,000.00 shall be reported and paid in
accordance with the terms of said Article 5.5.
2 This amendment shall become effective following Owner written
approval of Tenant remodel plans for the Xxxxxx Xxxxxxx store in which building
construction and/or fixture replacement are to be performed in the year 1994.
3. This amendment shall expire as of February 1,1999 without further
action on the part of either Owner or Tenant.
EXECUTED this 22 day of July 1993 at Portland, Oregon.
Xxxxxx Xxxxxxx, a joint venture GI Joe's, Inc., an Oregon
Xxxxxxx Land Partnership Corporation
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- --------------------------
Xxxxxx X. Xxxxx, Pres. XXXXX X. XXXXXX, CHRM.
D. Park Corp., Managing Partner
Date: July 22 1993 Date: July 23 1993
