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EHIBIT 10.12
LEASE
THIS LEASE is made this 12th day of May, 1997, by and between SOUTH HILL
VILLAGE LIMITED PARTNERSHIP, a Washington limited partnership ("Landlord"), and
G.I. JOE'S, INC., an Oregon corporation ("Tenant").
RECITALS
A. Landlord is the owner of good and marketable fee simple title in and to
certain real property situated in Puyallup, Xxxxxx County, Washington, being
more particularly described on EXHIBIT A attached hereto and made a part hereof,
upon which real property Landlord currently operates a shopping center (the
"Shopping Center") substantially as shown on the site plan attached hereto as
EXHIBIT B and made a part hereof (the "Site Plan").
B. Landlord has constructed upon a certain portion of land within the
Shopping Center, as outlined in red on the Site Plan (the "Land"), a certain
building containing an agreed-upon floor area of fifty-two thousand three
hundred (52,300) square feet (the "Building").
C. Landlord desires to lease to Tenant, and Tenant desires to lease from
Landlord, the Land and the Building, including the loading dock and trash
compactor areas adjacent to or used in connection with the Building (the "Leased
Premises"), in order to operate a G.I. Joe's store on the Leased Premises.
NOW, THEREFORE, in consideration of the aforementioned recitals which are
incorporated herein, and the mutual covenants, promises and agreements
hereinafter set forth, Landlord hereby grants, demises and leases to Tenant, and
Tenant hereby accepts, acquires and leases from Landlord, the Leased Premises,
together with a nonexclusive and perpetual easement in, through and over all
parking areas, all access areas and any Common Areas (as defined in Section 31.1
hereof) of the Shopping Center, as shown on the Site Plan, for parking and
pedestrian and vehicular ingress to and egress from the Leased Premises to the
public streets and/or highways adjacent to the Shopping Center, at all times,
for Tenant and its customers, invitees, guests and employees and for all trucks,
automobiles and other vehicles delivering merchandise to the Leased Premises, in
common with other occupants of the Shopping Center, in accordance with all the
terms, covenants and conditions hereinafter set forth, all as set forth in the
following documents (collectively, "Declaration of Covenants"): (i) the
Declaration of Covenants, Conditions and
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Restrictions for South Hill Village dated December 14, 1994, and recorded under
Xxxxxx County Auditor's File No. 9412150225 and (ii) the Construction, Operation
and Reciprocal Easement Agreement recorded under Xxxxxx County Auditor's File
No. 9406200693 as amended by First Amendment to Construction, Operation and
Reciprocal Easement Agreement recorded under Xxxxxx County Auditor's File No.
0000000000.
AGREEMENT
1. Term
1.1 Initial Term
The initial term of this Lease shall be twenty (20) years, beginning on the
Lease Commencement Date (as hereinafter defined) and ending twenty (20) years
thereafter; provided, however, if the Lease Commencement Date would otherwise be
a date other than the first day of the month, the Lease Commencement Date shall
be the first day of the following month.
1.2 Lease Commencement Date
The Lease Commencement Date of the initial term of this Lease shall be
October 1, 1997, and Tenant shall use reasonable efforts to open for business by
the Lease Commencement Date; provided, however, if the date on which the Leased
Premises are opened for business is delayed due to any act or omission of
Landlord, avoidable and unavoidable casualties (except those intentionally
caused by Tenant), severe weather, strikes, lockouts, unavailability of
materials, governmental restrictions or any other causes beyond Tenant's
control, then the Lease Commencement Date shall be extended by a period equal to
such delay. Notwithstanding the foregoing, the Lease Commencement Date shall be
postponed for a period not exceeding three (3) months at Tenant's option if the
Lease Commencement Date would otherwise occur in November, December or January,
in which event the Lease Commencement Date shall be a date not later than
February 1.
1.3 Option to Renew
Provided that Tenant is not then in default under the terms of this Lease,
Tenant shall have the option to renew this Lease for two (2) additional periods
of five (5) years each from and after the date of expiration of the initial term
hereof, or any renewal terms hereof, upon the same terms, covenants and
conditions herein set forth,
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except for rent which shall be determined pursuant to the schedule hereinafter
set forth. Landlord shall endeavor to give written notice to Tenant not earlier
than one year in advance of expiration of the initial term or extended term, as
the case may be, and ask whether Tenant intends to exercise its renewal option.
If Landlord fails to provide this notice, the time period for Tenant's exercise
of the option to extend the term is not altered or extended. If Tenant elects to
exercise said option to renew, Tenant shall do so by giving Landlord written
notice thereof not less than one hundred eighty (180) days prior to the end of
the term or extended term, as the case may be. Tenant's written notice to
Landlord exercising the option to renew shall be sufficient to make this Lease
binding for the renewal term without further act of the parties.
2. Base Rent
Tenant shall pay to Landlord each month, as base rent for the Leased
Premises, the following:
Lease Years Amount Per Month
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1 through 5 $48,750.00
6 through 10 $53,625.00
11 through 15 $60,328.17
16 through 20 $67,869.14
21 through 25 (Option Period 1) $76,352.78
26 through 30 (Option Period 2) $85,896.88
The base rent shall be paid, in advance, on or before the first day of each
calendar month beginning on the Rent Commencement Date and on the first day of
each month thereafter during the term of this Lease. The Rent Commencement Date
shall be October 1, 1997 unless the Lease Commencement Date is postponed as
provided in Section 1.2 above, in which event the Rent Commencement Date shall
be the earlier of (i) the date on which Tenant opens for business or (ii) the
date which is five (5) months following the date of this Lease plus the period
of postponement described in Section 1.2 above. If Tenant postpones the Lease
Commencement Date because it would otherwise occur in November, December or
January, the Rent Commencement Date shall be the date Tenant opens for business
or February 1, whichever first occurs. If Tenant opens for business on a day
after October 1, 1997 other than the first day of the month, the base rent will
be prorated for the month in which the opening occurs and shall be due and
payable on opening.
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3. Percentage Rent
3.1 Gross Sales
Tenant agrees, within thirty (30) days after the end of each fiscal year of
Tenant (February 1 through January 31), commencing at the end of Tenant's fiscal
year beginning on February 1 of the year immediately following the Rent
Commencement Date, to determine and report to Landlord Tenant's gross sales from
its use or occupancy of the Leased Premises ("Gross Sales"). The term "Gross
Sales" shall exclude any sales to employees under company plans, transfers of
merchandise between G.I. Joe's stores, receipts from the sale of event tickets
(except that portion of such sales representing commissions or fees received by
Tenant or its affiliates), the amount of returns and refunds, discounts actually
made or given in the ordinary course of business, carrying charges included in
the selling price on conditional sales contracts, financing charges on credit
card sales where the financing charge is not collected at the Leased Premises,
and the amount of any sales tax or other excise tax imposed upon said sales and
charges if such sales tax, excise tax or similar tax is billed to the purchaser
as a separate item, but, except as excluded above, shall include, among other
things, all gross income, fees or commissions from any other operations in, at
or upon the Leased Premises, all deposits received by Tenant at the Leased
Premises and not refunded, all orders received at the Leased Premises by
telephone or mail due to catalog or other canvassing methods, and the selling
price of all goods, wares and merchandise sold, leased or licensed or services
rendered in, on or from the Leased Premises or Tenant's activities in the
Shopping Center, directly by Tenant or through its sublessees, licensees and
concessionaires. The percentage rent shall be equal to one and one-half percent
(1.5%) of Gross Sales in excess of the Breakpoint (as hereinafter defined)
during each fiscal year of Tenant occurring during the term of this Lease,
including any renewal periods. The "Breakpoint" shall be as follows:
Lease Years Breakpoint
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1 - 5 $19,500,000
6 - 10 $21,450,000
11 - 15 $24,131,250
16 - 20 $27,147,656
21 - 25 $30,541,113
26 - 30 $34,358,753
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Tenant agrees to pay Landlord such percentage rent (if any is due), as
additional rent, April 1 of each lease year commencing at the end of the first
fiscal year of Tenant which starts after the Rent Commencement Date. Percentage
rent for any lease month occurring after the Rent Commencement Date but prior to
the start of Tenant's first fiscal year shall be prorated on the basis of, and
paid at the same time as, the percentage rent payable during such first fiscal
year. Furthermore, in the event the term of this Lease ends on a date other than
the ending date of Tenant's fiscal year, percentage rent for that fiscal year
shall be prorated on the basis of percentage rent paid by Tenant in the previous
fiscal year and shall be paid to Landlord within thirty (30) days of the end of
the term of this Lease.
3.2 Gross Sales Records
Tenant covenants for the purpose of ascertaining the amount of such Gross
Sales for any fiscal year as hereinabove provided that it and its sublessees,
licensees and concessionaires will keep accurate books of account that clearly
and accurately show all Gross Sales as aforesaid and maintain an accurate
accounting system in such manner that it can be checked and audited by a
competent accountant for a period of four (4) years. Landlord shall have
reasonable access to such books, accounts, records and reports of Tenant
pertaining to its business conducted at said location and the business of any of
its sublessees, licensees and concessionaires, and Tenant shall permit Landlord
or agents of Landlord to inspect the same at all reasonable times during normal
business hours. Upon ten (10) days' prior written notice to Tenant, Landlord
may, once in any lease year, during reasonable business hours, cause an audit of
the business of Tenant relating to sales from the Leased Premises during any of
the preceding three (3) years to be made by an independent certified public
accountant selected by Landlord and approved by Tenant, and if the statement of
Gross Sales previously made to Landlord for any of the previous three (3) years
shall be found to be understated or overstated, then and in that event there
shall be an adjustment, and one party shall pay to the other, on demand, such
sums as may be necessary to settle in full the accurate amount of said
percentage rent that should have been paid to Landlord for the period or periods
covered by such statement or statements. If said audit shall disclose an
understatement of greater than two percent (2%) of the amount of Gross Sales
reported by Tenant for the period of said audit, then Tenant shall immediately
pay to Landlord the reasonable cost of such audit; otherwise, the reasonable
cost of such audit shall be paid by Landlord.
3.3 No Joint Venture
Landlord is not, by virtue of this Section 3, a partner or joint venturer
with Tenant in connection with the business carried on under this Lease, and
Landlord
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shall have no obligation with respect to Tenant's debts or other liabilities,
and no interest in Tenant's profits.
4. Payment of Rent
Except as expressly provided herein, all rental payments provided for
herein shall be made by check payable to Landlord in U.S. dollars, without
deduction or offset, and paid to Landlord's managing agent as follows:
Seattle Pacific Realty, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
or other such place as Landlord may designate by written notice to Tenant.
5. Taxes
Tenant shall pay, as additional rent, before any fine, penalty, interest or
cost may be added thereto for the nonpayment thereof, all ad valorem taxes,
assessments, and other governmental levies and charges of any kind which are
assessed or imposed upon the Leased Premises, including both the land and
improvements thereon, or any part thereof, or which become payable during the
term of this Lease and any extensions hereof. In the event the Leased Premises
are not assessed and taxed separately from the Shopping Center, then Tenant
shall pay its pro rata share of such taxes and assessments of the Shopping
Center as provided in Section 31.3 hereof. In the event that any assessments are
assessed, Landlord shall elect, if permitted to do so, to pay the amount of such
assessments in installments. In such event, Tenant shall pay when due only the
amount of such installments falling due during the term of this Lease. All taxes
and assessments that are assessed prior to but payable in whole or in
installments after the Lease Commencement Date and all taxes and assessments
that are assessed during the term but payable in whole or in installments after
the end of the term shall be adjusted and prorated so that Landlord shall pay
its prorated share for the periods prior and subsequent to the term of this
Lease, and Tenant shall pay its prorated share for the term of this Lease.
6. Use
Tenant may use the Leased Premises for the primary purposes of the sale of
sporting goods, outdoor and active apparel, footware, after-market automobile
and truck parts, supplies and accessories and merchandise incidental to the
foregoing and for the secondary purpose of the sale of unrelated merchandise,
provided the sale area
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of such unrelated merchandise does not exceed two thousand five hundred (2,500)
square feet for each category of such merchandise. Tenant shall use the Leased
Premises for no other primary purpose during the term of this Lease without the
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Landlord shall not permit any other Tenant in the Shopping Center to
use its premises for the sale of sporting goods or automobile or truck parts,
supplies and accessories unless the merchandise occupies no more than ten
percent (10%) of such tenant's sales area or two thousand five hundred (2,500)
square feet, whichever is less. Tenant's use shall at all times comply with the
Declaration of Covenants and with noncompete restrictions in leases of other
Shopping Center tenants which were recorded prior to March 26, 1997. Landlord
will not object to Tenant conducting sidewalk or parking lot sales and special
promotions.
7. Compliance With Laws
Tenant shall neither make nor knowingly permit any unlawful use of the
Leased Premises, or any portion thereof, which will, in any way, tend to create
a nuisance or to disturb any persons in the Shopping Center, or to unduly create
or cause a fire hazard, or to increase the fire insurance on the Leased
Premises, or to permit any nuisance which shall in any manner be a violation of
the statutes and laws of the United States, the State of Washington or the laws
and ordinances of any political subdivision thereof. Tenant covenants and agrees
to comply with all applicable rules, orders, notices and regulations of any
municipal, state or other authority respecting the Leased Premises.
8. Waste
Tenant agrees to keep and maintain all of the Leased Premises in a clean
and sanitary condition and not to suffer or permit any strip or waste thereof.
9. Utilities
Tenant shall pay for all heat, light, power, water, sewage, garbage and
other services or utilities used by Tenant on the Leased Premises and shall pay
the charges therefor as the same become due. Landlord shall not be liable for
the quality, quantity, failure or interruption of any utility service to the
Leased Premises.
10. Repairs
Landlord shall maintain, repair and replace when necessary the roof and
roof drainage systems, floor slab, exterior walls, foundation and structural
members of the
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Building, the utility lines to the point of connection to the Leased Premises
and the sidewalk. Except for the foregoing and repairs due to damage by fire or
other insured peril or condemnation, Landlord shall not be required to make any
repairs, alterations, or improvements to or upon the Leased Premises during the
term of this Lease. Except for repairs to be made by Landlord, Tenant shall
maintain the floor covering, ceiling, Building lighting, interior finish, doors,
windows, plumbing fixtures, sprinkler systems and alarms, plumbing, electrical
and utility services from the point of connection at the Leased Premises,
heating and cooling systems and other equipment or appliances used for the
exclusive benefit of Tenants, in good order and repair during the term of this
Lease at Tenant's own cost and expense, reasonable wear and tear, fire and other
causes beyond Tenant's reasonable control excepted. If either party refuses or
neglects to make repairs as required as soon as reasonably possible after
written notice describing the proposed repairs and the estimated cost thereof,
the other party, at its option, may make such repairs, and, upon completion of
the repairs and presentation of a xxxx therefor, the cost of such repairs shall
be deemed additional rent if paid by Landlord, or deducted from rent if paid by
Tenant.
11. Inspections
Tenant agrees to permit Landlord and Landlord's agents to enter upon the
Leased Premises or any part thereof at all reasonable times during normal
business hours upon advance notice to Tenant and for any reasonable purpose,
including examining the condition of the Leased Premises and making repairs
which Landlord is either required or may desire to make to the Leased Premises,
provided that such entry does not unreasonably interfere with Tenant's use and
enjoyment of the Leased Premises.
12. Alterations
Except as provided in Section 29.1 hereof, Tenant may make alterations to
the interior of the Leased Premises without Landlord's consent. Tenant may make
alterations to (but not demolish) the floor slab and penetrations of the roof
and exterior walls with the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. Tenant shall make no other
structural alterations to the Leased Premises without the prior written consent
of Landlord, which consent shall be discretionary with Landlord. All trade
fixtures and other fixtures not referred to above, and all machinery, equipment
and/or other items of personal property placed in or upon the Leased Premises by
Tenant and paid for by Tenant may be removed by Tenant at any time. All other
improvements made to the Leased Premises during the term of this Lease shall
become the property of Landlord and surrendered with the Leased Premises at the
expiration or earlier termination of this Lease.
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13. Mechanics' Liens
Tenant shall not suffer or permit any mechanic's lien to be filed against
the fee of the Leased Premises or against Tenant's leasehold interest in said
premises by reason of work, labor, services or materials supplied or claimed to
have been supplied to Tenant or anyone holding the Leased Premises or any part
thereof through or under Tenant, and nothing contained in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration or repair
of or to the Leased Premises or any part thereof, or as giving Tenant any right,
power or authority to contract for or permit the rendering of any services or
the furnishing of any materials that would give rise to the filing of any
mechanic's lien against the fee of the Leased Premises. If any such mechanic's
lien shall at any time be filed against the Leased Premises, Tenant shall cause
the same to be discharged of record or "bonded over" in a manner reasonably
satisfactory to Landlord within ninety (90) days after the date of filing the
same.
14. Insurance
14.1 Landlord's Policies
Landlord shall, at all times during the term of this Lease, maintain with
insurers authorized to issue insurance in the State of Washington, the following
policies of insurance in effect with respect to the Leased Premises and the
Shopping Center:
14.1.1 Property
Fire, lightning, hail, windstorm and such other normally insured perils
included under a policy of property/casualty insurance, with endorsements for
earthquake, earth movement and flood if in a flood hazard zone, in the amount of
one hundred percent (100%) of the full replacement cost of the Building (except
for Tenant's improvements) with a so-called "agreed value" endorsement, naming
Tenant, Landlord and any mortgagee or beneficiary under any first mortgage or
first deed of trust, as additional insureds or loss payees, as their interests
may appear.
14.1.2 Liability
Comprehensive general liability insurance, of no less than Five Million
Dollars ($5,000,000) combined single-limit coverage, naming Tenant as an
additional insured thereunder. The limits of such policy shall be reviewed each
five (5) years and
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increased as commercially reasonable, but no less than increases in the Consumer
Price Index.
14.2 Tenant's Policies
Tenant shall at all times during the term of this Lease maintain, with
insurers authorized to issue insurance in the State of Washington, comprehensive
general liability insurance of no less than Five Million Dollars ($5,000,000)
combined single-limit coverage for the Leased Premises, naming Landlord as an
additional insured. The limits of such policy shall be reviewed each five (5)
years and increased as commercially reasonable, but no less than increases in
the Consumer Price Index. Tenant shall be responsible for insuring or
self-insuring its improvements to the Leased Premises and its inventory and
equipment. Landlord shall have no liability for damage to Tenant's improvements
to the Leased Premises or Tenant's inventory or equipment from fire, lighting,
hail, windstorm and such other perils insured or normally insurable under a
policy of property/casualty insurance, including earthquake and earth movement,
flood and sprinkler damage.
14.3 Waiver of Subrogation/Certificates
All such policies, to the extent obtainable, shall provide for waiver of
subrogation against Landlord and Tenant and shall contain an agreement by the
insurers that such policies shall not be canceled without at least thirty (30)
days' prior written notice to Landlord and Tenant and to any such mortgagee or
beneficiary named as a loss payee or an additional insured thereunder. The
original of such policy or policies shall remain in possession of the primary
insured; provided, however, that the additional insured shall have the right to
receive a certificate evidencing such insurance or, upon written demand, a
duplicate policy or policies of any such insurance.
15. Damage or Destruction
15.1 Partial Damage
If the Leased Premises are partially damaged by fire or other peril against
which Tenant is insured and are rendered partially untenantable thereby, but
such damage does not unreasonably impair Tenant's use or occupancy of the Leased
Premises, then Landlord shall, at Landlord's own expense, using any proceeds of
insurance payable on account of such loss, promptly cause the damage to be
repaired, and the rent shall be abated in proportion to the portion of the
Premises rendered unusable for Tenant's business.
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15.2 Total Destruction
If the Leased Premises are destroyed or damaged by fire or other peril and
are rendered wholly untenantable thereby, or such damage unreasonably impairs
Tenant's use or occupancy thereof, Landlord shall, as promptly as possible after
the occurrence of such damages or destruction, repair or replace the damaged
improvements so as to be in the same condition as before such damage and
destruction, to the extent of available proceeds of insurance. If the damage and
destruction occurs within the last five years of the initial or any option term,
or if the available proceeds are insufficient to enable Landlord to repair or
replace the damaged improvements to the condition existing prior to such damage
or destruction and Landlord elects not to contribute its own funds for the
completion of the repairs, then Tenant may, at its option, terminate this Lease.
Rent and other sums payable by Tenant under this Lease shall be totally abated
until Landlord completes such repairs and Tenant reopens for business.
15.3 Tenant's Improvements
Tenant shall be responsible for repair or replacement of its improvements
in the event of partial destruction under Section 15.1 above or in the event
Landlord makes the repairs or replacements pursuant to Section 15.2 above,
unless Tenant terminates this Lease as therein provided.
16. Condemnation
16.1 Complete Taking
If a condemning authority takes all the Leased Premises, or a portion
thereof sufficient to render the remaining premises reasonably unsuitable for
the use which Tenant was making of the Leased Premises prior to such taking,
then this Lease shall terminate as of the date title vests in the condemning
authority, and the proceeds from the condemnation shall be apportioned (a)
first, to Tenant in an amount equal to the unamortized value of Tenant's
improvements to the Leased Premises and (b) any remaining balance to Landlord.
16.2 Partial Taking
If a portion of the Leased Premises is taken and the remaining premises are
reasonably suitable for the use Tenant was making of the Leased Premises prior
to such taking, then this Lease shall continue, and the value of all of Tenant's
improvements to the Leased Premises plus that portion of the proceeds of
condemnation reasonably required to make the premises suitable for Tenant's
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continued use in a condition as comparable as reasonably practicable to that
existing at the time of condemnation shall be allocated to Tenant and applied by
Tenant for such purpose. All the balance of the award shall be allocated to
Landlord. Rent shall be abated to the extent the Leased Premises are
untenantable during the period of alteration and repair. As of the date title
vests in the condemning authority, the base rent due hereunder shall be reduced
commensurately with the amount of the award allocated to Landlord.
16.3 Common Areas
In the event any of the Common Areas are taken such that parking for the
Leased Premises, or access or visibility to or from the Leased Premises to a
publicly dedicated street or highway, is materially impaired, then if such
taking (a) renders the Leased Premises reasonably unsuitable for the use which
Tenant was making thereof prior to such taking, then such taking shall be deemed
a complete taking, as described in Section 16.1 hereof, and administered in
accordance with the provisions thereof or (b) leaves the Leased Premises
reasonably suitable for the use which Tenant was making thereof prior to such
taking, then such taking shall be deemed a partial taking and any award payable
thereby shall be paid to Landlord, and Landlord shall be obligated to restore
the balance of the Common Areas to the same condition and utility, as reasonably
practicable, as existed immediately prior to such taking.
16.4 Sale in Lieu of Condemnation
For purposes of this Lease, a taking by a condemning authority shall
include any purchase or other acquisition in lieu of condemnation.
17. Indemnification of Landlord
Tenant shall indemnify, defend and hold Landlord harmless from liability
and claims for damages by reason of any injury to any person or persons,
including Tenant, or property, upon or in any way connected with the Leased
Premises during the term of this Lease, any renewal hereof or any occupancy
hereunder, except for the negligence or willful misconduct of Landlord or its
employees or agents. Tenant shall have the right, in the name of Landlord, to
contest the validity of any and all such claims, of any kind or character and by
whomsoever claimed, and, at Tenant's expense, to defend, settle and/or
compromise any and all such claims.
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18. Quiet Enjoyment
Provided that Tenant keeps, observes and performs all the covenants,
agreements, conditions and provisions herein to be kept, observed or performed
by Tenant, Tenant shall and may at all times during the term hereby granted
peaceably, quietly and exclusively have, hold and enjoy the Leased Premises.
19. Subordination, Nondisturbance and Attornment
Upon written request or notice by Landlord or any first mortgagee or
beneficiary under a first deed of trust of Landlord encumbering the Shopping
Center, the Leased Premises or the Common Areas, Tenant agrees to subordinate
its rights under this Lease to the lien of any such first mortgage or deed of
trust, and to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, replacements and extensions thereof, provided the
mortgagee or beneficiary named in said mortgage or deed of trust shall agree to
recognize this Lease of Tenant and shall further agree not to disturb this Lease
or any rights of Tenant hereunder in the event of foreclosure or Trustee's sale,
if Tenant is not in default hereunder. Tenant also agrees that any such first
mortgagee or beneficiary may elect to have this Lease made prior to the lien of
its mortgage or deed of trust, and in the event of such election and upon
notification by such mortgagee or beneficiary to Tenant to that effect, this
Lease shall be deemed prior in lien to the said mortgage or deed of trust,
whether this Lease is dated prior to or subsequent to the date of said mortgage
or deed of trust. Tenant agrees that, upon the request of Landlord or any
mortgagee or any beneficiary named in such mortgage or deed of trust, Tenant
will execute and deliver an instrument confirming such purposes. Tenant, in the
event of the sale or assignment of Landlord's interest in the Shopping Center or
in the event of any proceedings brought for the foreclosure of such mortgage or
deed of trust, or in the event of the exercise of the power of sale under any
such deed of trust, shall attorn to and recognize such purchaser, mortgagee or
beneficiary as Landlord under this Lease. Landlord shall use its best efforts to
obtain nondisturbance and attornment agreements in which the holders of all
existing mortgages and deeds of trust on the Leased Premises agree not to
disturb this Lease or any rights of Tenant hereunder in the event of foreclosure
or Trustee's sale, if Tenant is not in default hereunder.
20. Defaults
20.1 Defaults Defined
The following events shall be deemed to be events of default by Tenant
under this Lease:
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(a) If Tenant shall fail to pay any installments of rent, or any other
charge designated herein to be paid as rent, on the date that same is due, and
such failure shall continue for a period of fifteen (15) days after Landlord
gives Tenant written notice thereof.
(b) If Tenant shall fail to comply with any term, condition or
covenant of this Lease, other than the payment of rent, and shall not cure such
failure within thirty (30) days after written notice thereof to Tenant; or if
such failure cannot reasonably be cured within the said thirty (30) days, Tenant
shall not have commenced to cure such failure within thirty (30) days after
written notice thereof by Landlord to Tenant and Tenant shall not with
reasonable diligence and good faith proceed in the curing of such failure.
(c) If Tenant shall become insolvent or shall make an assignment for
the benefit of creditors, or if Tenant files a petition under any chapter of the
U.S. Bankruptcy Code seeking to be adjudicated a bankrupt, or if any other party
files a petition under any section of the U.S. Bankruptcy Code seeking to have
Tenant adjudicated a bankrupt and Tenant fails to have such petition dismissed
within ninety (90) days of filing, or if a receiver or beneficiary shall be
appointed for all or substantially all the assets of Tenant. Tenant agrees that
the Leased Premises is part of a "shopping center" as that term is currently
used in Section 365(b)(3) of the Bankruptcy Code, 11 U.S.C. ss. 365(b)(3).
20.2 Remedies
Upon the occurrence of any of the foregoing events of default, Landlord
shall, without any notice or demand whatsoever, have the option to:
(a) Without terminating this Lease, enter upon and take possession of
the Leased Premises and expel or remove Tenant and any other person who may be
occupying said premises or any part thereof, and attempt to relet the premises
and receive rent therefor; and Tenant agrees to pay to Landlord, on demand, any
deficiency that may arise by reason of such reletting, and all other loss or
damage which Landlord may suffer, including, without limitation, reasonable
alterations to the Leased Premises, reasonable brokerage and marketing expenses,
reasonable attorneys' fees and any concessions granted a new tenant of the
Leased Premises.
(b) Terminate this Lease and enter upon and take possession of the
Leased Premises and expel or remove Tenant and any other person who may be
occupying said premises or any part thereof, and demand and receive from Tenant,
in lump sum, damages in the amount by which the rent provided for herein for the
entire
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remainder of the term discounted to its present cash value at the time of
such reentry exceeds the fair rental value of the Leased Premises for the
remainder of the term as of the time of said reentry discounted to its present
cash value, plus any and all other loss or damage which Landlord may suffer,
including, without limitation, reasonable alterations to the Leased Premises,
brokerage and marketing expenses, reasonable attorneys' fees and any concessions
granted a new tenant of the Leased Premises.
(c) Enter upon the Leased Premises and do whatever Tenant is obligated
to do under the terms of this Lease, and Tenant agrees to reimburse Landlord, on
demand, for expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, and Tenant further agrees that Landlord
shall not be liable for any damage resulting to Tenant from such action caused
by Landlord, except for damage caused by Landlord's gross negligence or willful
misconduct.
20.3 Remedies Cumulative
Landlord may pursue any of the foregoing remedies singly or cumulatively
and in addition any other remedies provided by law; pursuit of any remedy herein
provided shall not constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, conditions and covenants herein contained; no termination or
cancellation shall include a cancellation of Tenant's obligations hereunder for
any deficiency or damage upon reletting subsequent to said termination or
cancellation, such obligations being independent and such covenants surviving
said termination or cancellation.
21. Surrender
Upon the expiration of the term of this Lease or any sooner termination
hereof, Tenant covenants and agrees that Tenant shall, without notice, promptly
and peaceably surrender possession of the Leased Premises to Landlord, broom
clean, in as good a condition as at the time of Tenant's entry thereon,
reasonable wear and tear, and damage from causes beyond Tenant's reasonable
control excepted.
22. Holdover
If Tenant shall hold over and remain in possession of the Leased Premises
after the expiration of the term or extended term herein granted, Tenant shall
remain bound by all the terms, covenants and agreements hereof, except that such
holding over shall be construed to be a tenancy from month to month which may be
terminated at any time by Landlord or Tenant upon thirty (30) days' written
notice. If the holding over
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is with Landlord's written consent, the base rent shall be increased by twelve
and one-half percent (12.5%). If the holding over is without the consent of
Landlord, then the base rent shall be increased to one hundred fifty percent
(150%) of the then current amount.
23. Waiver
Any waiver of any breach of covenants herein contained to be kept and
performed hereunder shall not be deemed or considered as a continuing waiver and
shall not operate to bar or prevent Landlord or Tenant from declaring a default
for any succeeding breach, either of the same condition or covenant or
otherwise. The acceptance of rent by Landlord hereunder shall never be construed
to be a waiver of any term of this Lease. No payment by Tenant or receipt by
Landlord of a lesser amount than shall be due according to the terms of this
Lease shall be deemed or construed to be other than on account of the earliest
rent due.
24. Notices
All notices required or permitted to be given hereunder shall be in writing
and shall be deemed given upon personal service or three (3) days after deposit
in the U.S. mail, postage prepaid, certified or registered, return receipt
requested and addressed as follows:
If to Landlord: South Hill Village Limited Partnership
ANKA Developments, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, 0000, Xxxxxxxxx
with a copy to: Xxxx X. Xxxx
Xxxxxx & Xxxx
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
with a copy to: Seattle Pacific Realty, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
If to Tenant: G.I. Joe's, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00000
Attn.: Xxxx Xxxxxxx, President
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with a copy to: Xxxxxx Xxxxxxxx & Associates
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxx X. Xxxxxx
Xxxxxxx Coie
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
with a copy to: Xxxxx Xx Xxxxxx
Brownstein, Rask, Arenz, Sweeney, Xxxx & Grim
0000 X.X. Xxxx Xxxxxxxx
Xxxxxxxx, Xxxxxx 00000
The foregoing addresses may be changed by written notice given in accordance
with the terms of this Section 24.
25. Attorneys' Fees
In the event any action or suit or proceeding is brought to collect the
rent due or to become due hereunder, or any portion thereof, or any other
monetary obligation hereunder, or to obtain possession of the Leased Premises,
or to enforce compliance with this Lease, or for failure to observe any of the
covenants of this Lease, the prevailing party in such suit, action or proceeding
may recover from the other party herein such sum or sums as the trial and/or
appellate court may adjudge reasonable as attorneys' fees to be allowed in said
suit, action or proceeding, or appeal therefrom, in addition to their costs and
disbursements, excepting, however, attorneys' fees and costs in connection with
any arbitration provided for in this Lease.
26. Modification
The terms and conditions of this Lease shall be incapable of modification,
change or amendment, except in writing and bearing the separate signatures in
execution thereof by the parties hereto or their successors in interest.
27. Recordation/Supplement
This Lease shall not be recorded except by agreement of both parties, but,
upon request by either party, the parties shall execute a short form of this
Lease, in form suitable for recording, which shall contain the description of
the Leased Premises, the provisions relating to the term of this Lease,
including all renewals hereof, and a
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reference to this Lease. Landlord and Tenant shall execute a supplement to this
Lease setting forth the Lease Commencement Date and the Rent Commencement Date.
28. Binding Effect
This Lease shall be binding upon the parties hereto, their legal
representatives, heirs and successors and, as far as this Lease is assignable by
the terms hereof, the assigns of such parties. The words "Landlord" and
"Tenant," wherever used in this Lease, shall apply equally and be binding
jointly and severally upon all Landlords and Tenants, whether one or more, and,
together with the accompanying verbs and pronouns, shall apply to all persons,
firms or corporations who may be or become parties as Landlords or Tenants
hereto.
29. Tenant's Improvements
29.1 Plans and Specifications
Landlord shall use best efforts and due diligence to deliver possession of
the Leased Premises to Tenant on or before May 1, 1997 so that Tenant may
construct its improvements and remodel. Tenant shall have a licensed architect
prepare plans and specifications for remodeling the Building and constructing
Tenant's improvements therein. The plans and specifications, once complete,
shall be delivered to Landlord for review. Landlord shall, upon receipt thereof,
promptly review and comment upon the same to Tenant. Tenant shall cooperate with
Landlord and incorporate Landlord's reasonable comments into the final plans and
specifications (the "Plans and Specs"), which shall be completed by June 15,
1997. In the event Landlord and Tenant cannot agree on the Plans and Specs by
such date, then Tenant may terminate this Lease.
29.2 Signs
Tenant shall design, construct and install, at its own cost and in
compliance with all laws, exterior signage for the identification of its
business, subject to Landlord's prior approval, which approval shall not be
unreasonably withheld or delayed. Tenant shall have the right to place its sign
on the two existing Shopping Center pylons in the space formerly occupied by the
sign for BEST Products and on future pylon signs on the same basis as other
tenants in the Shopping Center. Tenant shall have the right to place its sign on
the third pylon now being built upon payment to Landlord of Two Thousand Eight
Hundred Dollars ($2,800).
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29.3 Construction of Tenant's Improvements
Upon approval of the Plans and Specs, Tenant shall apply for a building
permit and, upon issuance thereof, shall commence and complete construction, at
its own expense, of Tenant's improvements of the Building, substantially in
accordance with the Plans and Specs. Said construction will be prosecuted with
due diligence and Tenant will use due diligence and reasonable efforts to stock
the Leased Premises and open for business by a date not later than the Lease
Commencement Date.
30. Hazardous Substances
30.1 Landlord's Representation
Landlord represents and warrants to Tenant that, to the best of its
knowledge, hazardous substances have not been stored or disposed of on or in the
Leased Premises or the Shopping Center. Furthermore, Landlord covenants with
Tenant that it shall not generate, store or discharge any hazardous substances
in the Shopping Center, nor (by lease or by contract which Landlord shall
enforce) permit the same by any third party.
30.2 Tenant's Covenants
Tenant covenants with Landlord that hazardous substances shall not be
generated or disposed of in the Building or on the Leased Premises by Tenant,
nor shall the same be unlawfully transported to or over the Building or the
Leased Premises by Tenant. Tenant also covenants that any hazardous substances
sold by Tenant in lawful containers or used by Tenant in connection with its
business, such as cleaning agents and the like, shall be used and stored only in
accordance with applicable laws and regulations. Landlord has the right, from
time to time, during normal business hours upon advance notice, to enter the
Leased Premises at reasonable times to conduct tests so as to monitor Tenant's
compliance with the foregoing covenants.
30.3 Definition
"Hazardous substances" shall be interpreted broadly to mean any substance,
waste or material defined or designated as hazardous or toxic waste, hazardous
or toxic material, hazardous, toxic or radioactive substance or other similar
term by any federal, state or local environmental law, regulation or rule
presently in effect or promulgated in the future, as such laws, regulations or
rules may be amended from time to time, and it shall be interpreted to include,
but not be limited to, asbestos.
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30.4 Violations
In the event of any violation of law in regard to hazardous substances,
Landlord, in addition to all other remedies provided herein, shall have the
right to cure the violation and add all costs and expenses associated with such
cure (including reasonable attorneys' fees) as additional rent, which additional
rent will be due and payable by Tenant immediately after Tenant receives notice
thereof. Furthermore, in the event of an illegal and substantial release of
hazardous substances, Tenant shall immediately notify Landlord.
30.5 Mutual Indemnification
Landlord and Tenant shall indemnify, defend and hold harmless the other
from any breach of these representations, warranties or covenants for any
claims, judgments, damages, penalties, fines, costs (including cleanup costs,
environmental consultant's fees and reasonable attorneys' fees), liabilities or
losses (including, without limitation, the diminution in the value of the Leased
Premises, damages for the loss or restriction on the use, marketability or any
other amenity of the Building or the Leased Premises) which arise during or
after the term of this Lease as a result of release, discharge or contamination
of the Leased Premises by any hazardous substances.
31. Common Areas
31.1 Defined
For purposes of this Lease, "Common Areas" shall mean all areas of the
Shopping Center outside the exterior walls of the buildings located thereon
which are not reserved for the exclusive use of Landlord, Tenant or any other
tenant or occupant of the Shopping Center as described in the Declaration of
Covenants. Common Areas shall include automobile parking areas, access roads,
driveways, sidewalks, pedestrian walkways and stairways, landscaped areas and
utility lines and systems. Common Areas shall not include the interior space of
any building located in the Shopping Center or any area immediately appurtenant
to such building which is reserved for the exclusive use of such building, such
as loading docks.
31.2 Landlord's Obligations
Landlord shall, at all times during the term of this Lease, keep the Common
Areas in good maintenance and repair, and shall
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(a) maintain suitable means of illumination sufficient to illuminate
the parking areas during all twilight and night hours that Tenant's store is
open for business and is in operation;
(b) maintain and keep the parking areas, driveways, sidewalks and
access roads in good condition and repair, with a hard surface pavement and
properly striped;
(c) clean and remove debris and, where reasonably practicable, ice and
snow from the parking areas, driveways and access roads;
(d) clean and maintain sidewalks and other pedestrian walkways and
stairways and remove debris and, where reasonably practicable, ice and snow
therefrom; provided, however, that Tenant shall keep the sidewalk immediately in
front of the Leased Premises clean and free from debris, ice and snow;
(e) maintain and keep in good condition all landscaping and irrigation
systems;
(f) maintain all pylon signs;
(g) keep the exterior of all buildings in the Shopping Center in good
repair and paint as necessary;
(h) maintain all other portions of the Common Areas in good order and
repair; and
(i) obtain and maintain insurance insuring both Landlord and Tenant as
herein provided.
31.3 Tenant's Pro Rata Share
(a) Beginning on the Rent Commencement Date, Tenant shall pay to
Landlord, in the manner provided below, Tenant's pro rata share of Landlord's
actual costs of maintaining and operating the Common Areas during the term of
the Lease. "Actual costs of maintaining and operating the Common Areas" shall be
limited only to items of expense, and not capitalized, as determined under
generally accepted accounting principles and shall include, but not be limited
to, the following: all necessary amounts paid by Landlord as actual costs for
maintaining and repairing the Common Areas, including, without limitation,
cleaning; snow and ice removal; costs and expenses of planting, replanting and
replacing flowers, shrubs and landscaping; water and sewage charges;
maintenance, repair and replacement of lights, light
LEASE PAGE 11
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standards, utility systems, electricity, drainage systems and other utility
charges; repair, maintenance and upkeep of the parking areas, driveways, access
roads, sidewalks and pedestrian walkways, including the costs of paving,
repaving, surfacing, resurfacing, striping and restriping the same; operation
and maintenance of signs for the Shopping Center or rental for such signs if
leased; installation, replacement, repair and maintenance of traffic control and
directional signs and devices; premiums for insurance as herein provided;
existing and future real property taxes and assessments (in the event such
assessments are assessed, Landlord shall elect, if permitted to do so, to pay
the amount of such assessments in installments, and, thereafter, only the amount
of the installment paid shall be included in the actual costs of maintaining and
operating the Common Areas); personal property taxes on equipment and materials
used to maintain the Common Areas; and policing the Common Areas, including
controlling trespassing, picketing, demonstrations, assemblies, vandalism and
thefts and affording security and fire protection therefor. "Actual costs of
maintaining and operating the Common Areas" shall also include an administrative
fee of ten percent (10%) of the above-described costs; provided, that, in
computing said administrative fee, all capital items and all replacement items
in excess of Ten Thousand Dollars ($10,000) per annum, real estate taxes and
assessments and insurance premiums shall be excluded. Items of expense shall not
include management fees, depreciation, reserves for replacement or items of
capital improvements exceeding Ten Thousand Dollars ($10,000) per annum without
Tenant's prior written consent. Landlord agrees to expend only the monies
reasonably necessary for such operation and maintenance in order to keep the
Common Areas in good repair and clean condition and to operate the same on a
nonprofit basis. Costs attributable to a contract between Landlord and an
affiliated party shall not be included, unless that contract is previously
approved in writing by Tenant. Tenant's approval shall not be unreasonably
withheld.
(b) Tenant's pro rata share of the necessary actual costs of
maintaining and operating the Common Areas limited as provided above shall be a
percentage computed by dividing the interior floor area of the Leased Premises,
which is hereby agreed to be fifty-two thousand three hundred (52,300) square
feet at the Lease Commencement Date, by the total floor area of all buildings in
the Shopping Center. At the Lease Commencement Date, Tenant's pro rata share is
as follows: 32.5662% of the actual costs of maintaining and operating the Common
Areas as described in Section 31.1, except real estate taxes and assessments and
insurance premiums; 36.8318% of real estate taxes and assessments and
casualty/property insurance premiums including earthquake coverage; and 32.5662%
of liability insurance premiums. If Tenant approves a change in the Site Plan
which increases or decreases the floor area of the Building relative to the
aggregate floor area of the other
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buildings to be constructed in the Shopping Center, then Tenant's pro rata share
shall be adjusted accordingly.
(c) The annual charge to Tenant shall be paid in monthly installments,
in advance, at the time of the base rent payment, in an amount estimated by
Landlord. On or before April 1 of each calendar year (and within ninety (90)
days after the termination of this Lease), Landlord shall furnish Tenant with a
statement in reasonable detail of the actual costs of maintaining and operating
the Common Areas actually paid or incurred by Landlord during such period, and,
thereupon, there shall be an adjustment between Landlord and Tenant, with
payment to or repayment by Landlord, as required, so that Landlord shall receive
the entire amount of Tenant's pro rata share of such costs for such period.
31.4 Rules and Regulations
Subject to the provisions of the Declaration of Covenants and grant of
easements which may now or hereafter (with Tenant's prior written consent) be
filed of record with respect to the Leased Premises and the Common Areas, the
Common Areas will be maintained for the common use of all lessees and sublessees
of Landlord, their customers, visitors, employees, business invitees and
licensees and persons dealing with lessees, sublessees and Landlord. Neither
Tenant nor Landlord shall do any act to unreasonably prevent or obstruct such
common use and free ingress to and egress from the Common Areas; provided,
however, that Landlord may make such rules and regulations governing the use of
the Common Areas as may be reasonably necessary to regulate the use of such
Common Areas, and may restrict the use of or access to any portion of the Common
Areas when such restriction is necessary or advisable for purposes of security
or safety, or for the construction, reconstruction, repair, maintenance or
preservation of the Common Areas or any buildings located in the Shopping
Center. Notwithstanding anything to the contrary herein contained, Tenant shall
have the right to use the sidewalk in front of the Building and/or certain
portions of the parking areas, from time to time, for sidewalk sales, parking
lot sales, special events, or product demonstrations, provided that such use
does not materially violate the Declaration of Covenants.
32. Protective Covenants
Landlord and Tenant agree that the Shopping Center shall be subject to the
Declaration of Covenants. Landlord covenants that the Leased Premises shall not
be denied access to, or have the view unreasonably obstructed from, any publicly
dedicated street or highway adjoining the Shopping Center, except as shown on
the Site Plan. Landlord shall have the right to convey portions of the Shopping
Center
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to third parties, provided such third parties agree to be bound by the
Declaration of Covenants. Landlord shall not consent to any amendment of the
Declaration of Covenants without Tenant's prior written consent.
33. Assignment and Subletting
Tenant may, without the prior written consent of Landlord, license any
concession or sublet any portion at the Leased Premises not exceeding two
thousand five hundred (2,500) square feet to any single concessionaire or
subtenant, so long as the primary use of the Leased Premises is not changed.
Tenant may also assign all of its interest under this Lease, or sublet all or
any portion of the Leased Premises, if the proposed assignee or sublessee has a
net worth greater than or equal to Tenant on the date hereof and the use of the
Leased Premises by the proposed assignee or sublessee shall be for a primary
purpose or purposes then permitted under this Lease. Tenant may, in all other
cases, assign all of its interest under this Lease, or sublet all or any part of
the Leased Premises, only with the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
34. Zoning; Permitted Uses
Landlord hereby represents and warrants to Tenant that the use of the
Leased Premises as a G.I. Joe's store does not breach any protective covenants,
agreements or exclusivity rights granted by Landlord to other tenants in the
Shopping Center or binding upon the Leased Premises, which were not recorded as
of March 26, 1997.
35. Structure
Landlord represents and warrants to Tenant that the structural elements of
the Building, including the roof and floor slab, are in good condition and
repair, ready for construction of Tenant's improvements, except as disclosed in
writing to Tenant prior to execution of this Lease.
36. Assessments
Landlord represents and warrants to Tenant that it has no actual knowledge
of any pending tax assessments or formation of special taxing districts
affecting the Shopping Center.
37. Brokerage
Landlord and Tenant agree that neither has dealt with any broker other than
Seattle Pacific Realty, Inc. and Xxxxxx Xxxxxxxx & Associates with respect to
the
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negotiation or execution of this Lease. Landlord covenants and agrees to pay
to Seattle Pacific Realty, Inc. the sum of Fifty-Two Thousand One Hundred
Twenty-Five Dollars ($52,125) commission, which will be paid in nine (9) equal
monthly installments of Five Thousand Seven Hundred Ninety-One and 67/100
Dollars ($5,791.67) beginning on the Rent Commencement Date. Landlord covenants
and agrees to pay Xxxxxx Xxxxxxxx & Associates Seventy-Eight Thousand Two
Hundred Twenty-Five Dollars ($78,225) commission, which shall be paid in nine
(9) equal monthly installments of Eight Thousand Six Hundred Ninety-One and
67/100 Dollars ($8,691.67) beginning on the Rent Commencement Date. Furthermore,
Landlord shall indemnify, defend and hold harmless Tenant from and against any
loss, damage, claim, cost or expense which Tenant may incur as the result of a
failure by Landlord to pay such brokerage commissions.
38. Estoppels
Landlord or Tenant shall, at any time and from time to time, upon not less
than ten (10) business days' prior written notice from the other, execute,
acknowledge and deliver to Landlord or Tenant, as the case may be, a statement
in writing (a) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect) and the date to
which the rental and other charges are paid in advance, if any; (b)
acknowledging that, to Landlord's or Tenant's knowledge, there are no uncured
defaults on the part of Landlord or Tenant, as the case may be, or specifying
such defaults if any are claimed; and (c) setting forth the date of commencement
of rents and expiration of the term hereof. Any such statement may be relied
upon by the prospective purchaser or encumbrancer of all or any part of the
Shopping Center.
39. Survey
Landlord promptly shall furnish to Tenant a copy of Landlord's as-built
survey of the Leased Premises.
40. Configuration of Shopping Center
Landlord shall at all times, and from time to time, have the right and
privilege of making changes to the configuration of the Shopping Center,
including the size and location of building pads, Common Areas and parking
areas, the location and relocation of driveways, entrances, exits and parking
spaces, the direction and flow of traffic, the installation of prohibited areas,
landscaped areas, and all other facilities thereof, so long as no such
reconfiguration (a) materially impairs access to or from, or
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visibility of the Leased Premises from, any publicly dedicated street or
highway, (b) materially reduces the amount or location of parking available for
the Leased Premises, or (c) materially increases Tenant's pro rata share of the
actual costs of maintaining and operating the Common Areas.
41. Arbitration
All disputes between Landlord and Tenant under this Lease, other than
nonpayment of rent, shall be arbitrated and decided by a single arbitrator
mutually agreed to by the parties under such terms as the parties may agree
upon. If the parties cannot agree upon an arbitrator or the terms of
arbitration, either party may apply to the American Arbitration Association for
appointment of a qualified, disinterested arbitrator and the arbitration will be
conducted pursuant to the commercial rules of the American Arbitration
Association. All costs of the arbitrator shall be shared equally by Landlord and
Tenant.
42. Operating Covenant
Tenant covenants that it will not cease operation in the Leased Premises
for any period exceeding one hundred eighty (180) days in any one-year period,
excluding periods in which operations are discontinued for remodeling or repair
following damage from casualty loss or loss of utilities, parking or access to
the Shopping Center or Leased Premises. In the event one or more tenants
comprising fifty thousand (50,000) square feet or more of gross floor area in
the Shopping Center cease operating, then Tenant shall have the right to cease
operating until such tenant or tenants reopen for business.
43. Effective Date
Notwithstanding the references herein to the Lease Commencement Date and
the Rent Commencement Date, this Lease shall be binding upon Landlord and Tenant
upon execution and delivery hereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this instrument on the date
first above written.
Landlord:
SOUTH HILL VILLAGE LIMITED PARTNERSHIP,
a Washington Limited Partnership
By ANKA Developments, Inc.
General Partner
By /s/ XXXX X. XXXX
----------------------------------
Name: Xxxx X. Xxxx
---------------------------
Title: Authorized Signator/Agent
--------------------------
Tenant:
G.I. JOE'S, INC., an Oregon corporation
By /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------
Title: President
------------------------------
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 21st day of May, 1997, before me, the undersigned, a Notary Public
in and for the State of Washington, duly commissioned and sworn, personally
appeared Xxxx X. Xxxx, to me known to be the person who signed as authorized
signator/agent of ANKA DEVELOPMENTS, INC., the corporation acting as general
partner of South Hill Village Limited Partnership, the limited partnership that
executed the within and foregoing instrument, and acknowledged said instrument
to be the free and voluntary act and deed of ANKA Development, Inc. and South
Hill Village Limited Partnership for the uses and purposes therein mentioned;
and on oath stated that he/she was duly elected, qualified and acting as an
officer of the corporation, that he/she was authorized to execute said
instrument on behalf of the corporation and that the corporation was authorized
to execute said instrument on behalf of the limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
/s/ XXXXX X. XXXXXXX
-----------------------------------------
(Signature of Notary)
Xxxxx X. Xxxxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at Seattle. My
Appointment Expires: 8/29/98.
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STATE OF OREGON )
) ss.
COUNTY OF CLACKAMAS )
On this 13th day of May, 1997, before me, the undersigned, a Notary Public
in and for the State of Oregon, commissioned and sworn, personally appeared Xxxx
Xxxxxxx, to me known to be the person who signed as President of G.I. JOE'S,
INC., the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that
he was duly elected, qualified and acting as said officer of the corporation,
that he was authorized to execute said instrument and that the seal affixed, if
any, is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
/s/ XXXXXXX XXXXXXX
-----------------------------------------
(Signature of Notary)
Xxxxxxx Xxxxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Oregon, residing at Tigard. My
Appointment Expires: 3-12-99.
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EXHIBIT A
TO
LEASE
SOUTH HILL VILLAGE LIMITED PARTNERSHIP/
G.I. JOE'S, INC.
PARCEL #1:
Commencing at the Northeast corner of the Northwest quarter of the Southwest
quarter of SECTION 3, TOWNSHIP 19 NORTH, RANGE 4 EAST of the Willamette
Meridian;
Thence along the North line of said subdivision, North 88 degrees 34 minutes 04
seconds West, 769.89 feet;
Thence South 00 degrees 56 minutes 36 seconds West, 27.00 feet to the Southerly
margin of 31st Avenue Southeast, as conveyed to the City of Puyallup by deed
recorded under A.F.N. 9406200692,
and the true point of beginning;
Thence North 88 degrees 34 minutes 04 seconds West, along said margin, 442.03
feet;
Thence South 03 degrees 58 minutes 13 seconds East 0.22 feet to a point on a
non-tangent curve concave to the Southeast, the radius point of which bears
South 04 degrees 37 minutes 19 seconds East, 40.00 feet;
Thence Southwesterly, along said curve through a central angle of 85 degrees 17
minutes 17 seconds for an arc distance of 59.54 feet to the Easterly margin of
Meridian Street as established by City of Puyallup Vacation Ordinance No. 2406
and recorded under Auditor's Fee No. 9409130085;
Thence along said Easterly margin, South 00 degrees 05 minutes 24 seconds West
127.47 feet to the P.C. of a curve concave to the Northwest having a radius of
196.45 feet;
Thence Southwesterly, along said curve through a central angle of 18 degrees 31
minutes 51 seconds for an arc distance of 63.54 feet;
Thence South 18 degrees 37 minutes 15 seconds West, 48.83 feet to the P.C. of a
curve concave to the Northwest having a radius of 268.18;
Thence Southwesterly, along said curve through a central angle of 05 degrees 12
minutes 48 seconds for an arc distance of 24.40 feet;
Thence South 23 degrees 50 minutes 03 seconds West 159.49 feet;
Thence South 00 degrees 56 minutes 32 seconds West, 175.15 feet to the Northerly
margin of SR 512-5N;
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Thence along said Northerly margin South 40 degrees 13 minutes 03 seconds East,
132.28 feet;
Thence South 25 degrees 14 minutes 05 seconds East 64.54 feet;
Thence South 14 degrees 48 minutes 43 seconds East 70.32 feet;
Thence South 12 degrees 43 minutes 50 seconds East 46.47 feet;
Thence South 06 degrees 40 minutes 55 seconds East 242.20 feet;
Thence leaving said margin South 89 degrees 03 minutes 24 seconds East 144.21
feet;
Thence South 00 degrees 54 minutes 36 seconds West 83.53 feet to a point of
curvature;
Thence Southwesterly, along a curve concave to the right with a radius of 35.00
feet, through a central angle of 94 degrees 31 minutes 35 seconds for an arc
distance of 57.74 feet;
Thence North 84 degrees 31 minutes 49 seconds West 79.17 feet to a point of
curvature;
Thence Northwesterly, through a curve concave to the right with a radius of
35.00 feet, through a central angle of 99 degrees 10 minutes 32 seconds for an
arc distance of 60.58 feet to the Easterly margin of SR 161;
Thence along said Easterly margin South 14 degrees 38 minutes 43 seconds West
53.94 feet to the Northerly margin of 35th Avenue Southeast as conveyed to the
City of Puyallup by deed recorded under A.F.N. 9406200691;
Thence South 69 degrees 55 minutes 13 seconds East, along said Northerly margin,
30.27 feet;
Thence South 84 degrees 31 minutes 49 seconds East, along said Northerly margin,
119.98 feet;
Thence South 89 degrees 03 minutes 24 seconds East, along said Northerly margin,
136.24 feet;
Thence North 00 degrees 56 minutes 36 seconds East 560.00 feet;
Thence, parallel with said Northerly margin, South 89 degrees 03 minutes 24
seconds East 125.09 feet;
Thence North 00 degrees 56 minutes 36 seconds East 709.56 feet to the Southerly
margin of 31st Avenue Southeast as conveyed to the City of Puyallup by deed
recorded under A.F.N. 9406200692, and the true point of beginning.
EXCEPT THEREFROM the following three parcels:
Commencing at a point 30 feet North and 30 feet West of the Southeast corner of
the Northwest quarter of the Southwest quarter of SECTION 3, TOWNSHIP 19 NORTH,
RANGE 4 EAST, X.X., Xxxxxx County, Washington;
Thence parallel with the South line of said subdivision, North 89 degrees 03
minutes, 24 seconds West 904 feet;
Thence North 00 degrees 56 minutes 36 seconds East 549.78 feet;
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Thence parallel with the South line of said subdivision, North 89 degrees 03
minutes 24 seconds West, 126.10 feet to the true point of beginning;
Thence continue North 89 degrees 03 minutes 24 seconds West, 179.81 feet;
Thence South 00 degrees 56 minutes 36 seconds West, 89.84 feet;
Thence South 35 degrees 23 minutes 29 seconds East, 68.32 feet;
Thence parallel with the South line of said subdivision, south 89 degrees 03
minutes 24 seconds East 139.33 feet;
Thence North 00 degrees 56 minutes 36 seconds East, 144.88 feet to the true
point of beginning.
Commencing at the Northeast corner of the Northwest quarter of the Southwest
quarter of SECTION 3, TOWNSHIP 19 NORTH, RANGE 4 EAST of the Willamette
Meridian;
Thence along the North line of said subdivision, North 88 degrees 34
minutes 04 seconds West, 769.89 feet;
Thence South 00 degrees 56 minutes 36 seconds West, 27.00 feet to the Southerly
margin of 31st Avenue Southeast, as conveyed to the City of Puyallup by deed
recorded under A.F.N. 9406200692;
Thence North 88 degrees 34 minutes 04 seconds West along said margin, 219.01
feet, and the true point of beginning;
Thence North 88 degrees 34 minutes 04 seconds West, along said margin, 223.02
feet;
Thence South 03 degrees 58 minutes 13 seconds East, 0.22 feet to a point on a
non-tangent curve concave to the Southeast, the radius point of which bears
South 04 degrees 37 minutes 19 seconds East, 40.00 feet;
Thence Southwesterly, along said curve through a central angle of 85 degrees 17
minutes 17 seconds for an arc distance of 59.54 feet to the Easterly margin of
Meridian Street as established by City of Puyallup Vacation Ordinance No. 2406
and recorded under Auditor's Fee No. 9409130085;
Thence along said Easterly margin, South 00 degrees 05 minutes 24 seconds West
127.47 feet to the P.C. of a curve concave to the Northwest having a radius of
196.45 feet;
Thence Southwesterly, along said curve through a central angle of 18 degrees 31
minutes 51 seconds for an arc distance of 63.54 feet;
Thence South 18 degrees 37 minutes 15 seconds West, 48.83 feet to the P.C. of a
curve concave to the Northwest having a radius of 268.18;
Thence Southwesterly, along said curve through a central angle of 05 degrees 12
minutes 48 seconds for an arc distance of 24.40 feet;
Thence South 23 degrees 50 minutes 03 seconds West 159.49 feet;
Thence South 00 degrees 56 minutes 32 seconds West, 175.15 to the Northerly
margin of SR 512-5N;
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Thence along said Northerly margin South 40 degrees 13 minutes 03 seconds East,
102.95 feet;
Thence, leaving said margin, South 89 degrees 03 minutes 24 seconds East 259.03
to a point of curvature;
Thence Northeasterly, along a 25.00 foot radius curve to the left, through a
central angle of 90 degrees for an arc distance of 39.27 feet;
Thence North 00 degrees 56 minutes 36 seconds East 672.76 feet to the Southerly
margin of 31st Avenue Southeast as conveyed to the City of Puyallup by deed
recorded under A.F.N. 9406200692, and the true point of beginning.
Commencing at a point 30.00 feet North and 30.00 feet West of the Southeast
corner of the Northwest quarter of the Southwest quarter of SECTION 3, TOWNSHIP
19 NORTH, RANGE 4 EAST of the Willamette Meridian;
Thence parallel with the South line of said subdivision, North 89 degrees 03
minutes 24 seconds West, 1027.74 feet;
Thence North 00 degrees 56 minutes 36 seconds East, 20.00 feet to the true point
of beginning;
Thence continuing North 00 degrees 56 minutes 36 seconds East 120.79 feet;
Thence South 89 degrees 03 minutes 24 seconds East, 110.58 feet;
Thence South 00 degrees 57 minutes 45 seconds West, 120.79 feet;
Thence North 89 degrees 03 minutes 24 seconds West, 110.54 feet to the true
point of beginning.
PARCEL #2:
Commencing at the Northeast corner of the Northwest quarter of the Southwest
quarter of SECTION 3, TOWNSHIP 19 NORTH, RANGE 4 EAST of the Willamette
Meridian;
Thence along the North line of said subdivision, North 88 degrees 34 minutes 04
seconds West, 769.89 feet;
Thence South 00 degrees 56 minutes 36 seconds West, 27.00 feet to the Southerly
margin of 31st Avenue Southeast, as conveyed to the City of Puyallup by deed
recorded under A.F.N. 9406200692;
Thence North 88 degrees 34 minutes 04 seconds West, along said margin, 219.01
feet, and the true point of beginning;
Thence North 88 degrees 34 minutes 04 seconds West, along said margin, 223.02
feet;
Thence South 03 degrees 58 minutes 13 seconds East, 0.22 feet to a point on a
non-tangent curve concave to the Southeast, the radius point of which bears
South 04 degrees 37 minutes 19 seconds East, 40.00 feet;
Thence Southwesterly, along said curve through a central angle of 85 degrees 17
minutes 17 seconds for an arc distance of 59.54 feet to the Easterly margin of
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Xxxxxxxx Xxxxxx as established by City of Puyallup Vacation Ordinance No. 2406
and recorded under Auditor's Fee No. 9409130085;
Thence along said Easterly margin, South 00 degrees 05 minutes 24 seconds West,
127.47 feet to the P.C. of a curve concave to the Northwest having a radius of
196.45 feet;
Thence Southwesterly along said curve through a central angle of 18 degrees 31
minutes 51 seconds for an arc distance of 63.54 feet;
Thence South 18 degrees 37 minutes 15 seconds West, 48.83 feet to the P.C. of a
curve concave to the Northwest having a radius of 268.18;
Thence Southwesterly, along said curve through a central angle of 05 degrees 12
minutes 48 seconds for an arc distance of 24.40 feet;
Thence South 23 degrees 50 minutes 03 seconds West, 159.49 feet;
Thence South 00 degrees 56 minutes 32 seconds West, 175.15 feet to the Northerly
margin of SR 512-5N;
Thence along said Northerly margin South 40 degrees 13 minutes 03 seconds East,
102.95 feet;
Thence leaving said margin, South 89 degrees 03 minutes 24 seconds East 259.03
feet to a point of curvature;
Thence Northeasterly, along a 25.00 foot radius curve to the left, through a
central angle of 90 degrees for an arc distance of 39.27 feet;
Thence North 00 degrees 56 minutes 36 seconds East 672.76 feet to the Southerly
margin of 31st Avenue Southeast as conveyed to the City of Puyallup by deed
recorded under A.F.N. 9406200692, and the true point of beginning.
ALL Situate in the County of Xxxxxx, State of Washington.
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EXHIBIT B
[Site Plan]
PAGE 1
