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EXHIBIT 10.5
SUBLEASE
THIS AGREEMENT TO SUBLEASE, Entered into this 28th day of March, 1984, by
and between XXXXXX X. XXXXX, XX. and XXXXXX X. XXXXXXXX, doing business as THE
XXXXX-XXXXXXXX COMPANY, hereinafter called "Landlord", and G.I. JOE'S, INC., an
Oregon corporation, hereinafter called "Tenant":
W I T N E S S E T H:
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PREMISES AND TERM
Landlord is the "Ground Tenant" under that certain ground lease dated March
28, 1984 by and between XXXXXXXXXXXX, XXXXXXXXXX & XXXXXXXXXXXX, a partnership,
(Ground Landlord), and THE XXXXX-XXXXXXXX COMPANY, (Ground Tenant), attached
hereto and marked Exhibit "A", hereof which lease includes the Premises
described in this Building Lease.
In consideration of the covenants and agreements herein contained to be
kept and performed by Tenant, and the rentals hereinafter covenanted to be paid
by Tenant, Landlord does hereby sublease, demise and sublet unto Tenant for the
term hereinafter specified, those certain leased Premises located in Medford,
Xxxxxxx County, Oregon, described in Exhibit "B" attached hereto ("the
Premises"), to have and to hold unto
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said Tenant the above described leased Premises, together with all
appurtenances, rights, privileges, and easements thereto belonging upon the
terms and conditions, covenants, and agreements hereinafter set forth for a term
commencing on the commencement date as hereinafter defined and ending October
14, 2009, unless sooner terminated or extended as provided hereinafter.
This demise is subject to:
(a) Conditions, restrictions, and limitations, if any, now appearing
of record;
(b) Zoning ordinances of any municipality, Xxxxxxx County, Oregon,
Medford, Oregon, including the Land Conservation and Development Commission, and
any other governmental body now existing or which may hereafter exist by reason
of any legal authority during the life of this Lease;
(c) Any questions of survey, Tenant having satisfied itself as to the
boundary lines and contents of the lease Premises;
(d) Such declaration and establishment of Protective Covenants,
Conditions and Restructions, and Grants of Easements or Reciprocal Easement
Agreements affecting the lease Premises as may now or hereafter be filed of
record, and amendments thereto.
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II
RENT
1. From the commencement date (as hereinafter defined) of this Lease
through October 14, 2009, Tenant shall pay to Landlord, as basic monthly rent
for the lease Premises the following amounts under the following conditions:
(a) If Tenant elects to occupy the Premises on or before April 1,
1985, (which election shall be conveyed to the Landlord not later than July 15,
1984), the basic monthly rent shall be $24,840.
(b) If Tenant elects to occupy the Premises after April 1, 1985, but
before April 1, 1986, (which election shall be conveyed to the Landlord not
later than July 15, 1984) then the basic monthly rent shall be determined by:
(i) Adding the "actual building construction costs" as defined in
subparagraph (d), in excess of $974,000 to the actual construction loan
interest costs in excess of $39,000 and
(ii) Multiplying the total of (i) times .1584, and
(iii) Adding $313,920, and
(iv) Dividing the total of the foregoing computations by 12.
(b) Basic rent payments shall commence on the commencement date as
hereinafter defined. In the event the commencement date occurs on any date other
than the first day of a calendar month, the basic monthly rent for that month
shall be prorated on a daily basis.
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(c) Thereafter, the basic monthly rent shall be payable in advance on
or before the first day of each and every calendar month.
(d) "Actual building construction costs," as used in this Article,
shall mean construction contract price, or prices for the construction of the
building described in Exhibit "C" attached to this Lease; provided that "actual
building construction costs", as used in this computation shall not be less than
the $974,000 above mentioned. "Actual construction loan interest costs," as used
in this Article, shall mean interest costs assessed by the construction lender
during the term of construction in the normal course of construction.
(e) After completion of the construction set forth in Article III,
Landlord shall submit to Tenant a statement setting forth the construction costs
and interest costs and the amount of the initial basic rent. Such statement
shall be itemized in reasonable detail and shall detail the basis of the
computation of the construction cost and initial basic rent.
2. In addition to the basic rent specified above, for each year or part
thereof of the lease term Tenant shall pay to Landlord, as percentage rent, an
amount equal to One and One-half Percent (1-1/2%) of Tenant's aggregate gross
receipts for that calendar year in excess of the annual exclusion. (I.e.,
Percentage Rent=(1-1/2% x Gross Receipts)-(Annual Exclusion)). The term "annual
exclusion" shall for the purpose of this Lease be defined as the amount which is
equal to the basic rent for the first full year divided by .03. The annual
exclusions for the first and last years of this
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Lease shall be prorated from the first day of the first full month and to the
last day of the last full month of the lease term, respectively. Payments of
percentage rent shall be made annually, on or before the Fifteenth (15th) day of
January of the following year. Percentage rent shall be determined by applying
the above percentage to the aggregate gross receipts for the calendar year in
excess of the annual exclusion. A statement setting forth how the percentage
rent is computed, and-reconciled with the payment actually made, shall be
submitted to the Landlord with said annual payment or by January 15, regardless
of whether any such percentage rent shall be payable hereunder. On or before
February 15th of each year, Tenant shall submit to Landlord an unaudited
statement for the preceding year showing Tenant's total gross receipts from the
leased Premises, the aggregate percentage rent payable, and the amount actually
paid, if any. Any deficiency shall be paid upon submission of the annual
statement. Any excess shall be reimbursed to Tenant by Landlord within Thirty
(30) days after receipt of the annual statement unless, within that time,
Landlord or Ground Landlord requests an audit, as hereafter provided.
3. The term "gross receipts" means the amount paid or payable for all goods
sold or services rendered upon or from any part of the leased Premises by Tenant
or by any other person, whether at retail or wholesale, and including credit
transactions. Goods transferred to Tenant's other places of business for bona
fide business reasons, and not to avoid percentage rent, are excluded. Amounts
paid by Tenant as a sales tax or other excise tax on account of sales, and
amounts refunded or
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cancelled on goods returned or on which adjustments have been made, are
excluded. Amounts deemed uncollectable on credit sales in accordance with
generally accepted accounting principles shall be deducted in the year in which
they are so shown on Tenant's books and records, provided, however, such amounts
shall be deducted only to the extent they have been included in an annual
statement of aggregate gross receipts pursuant to paragraph 2 above.
4. At any time after Tenant's statement of receipts is due, whether or not
it has been submitted and whether or not Landlord has accepted the payment shown
to be due thereon, either Landlord or Ground Landlord may request an audit of
Tenant's gross receipts by a certified public accountant selected by the party
requesting the audit. The accountant shall take such steps as the accountant
deems necessary to determine Tenant's gross receipts. The accountant's
determination of Tenant's gross receipts shall be final and binding upon all
parties, and payments required to make adjustments in rent to conform to the
accountant's determination shall be made within Ten (10) days after receipt of
the accountant's written determination by the party obligated to make the
payment. The cost of the accountant's determination shall be borne by either
Landlord or Tenant, depending upon the difference in percentage rent shown to be
due, as follows: Less than Five Percent (5%) additional due, by Landlord; Five
Percent (5%) additional or more due, by Tenant.
5. Tenant shall keep in the leased Premises or, upon Twenty-one (21) days'
notice, agrees to prepare and make available to Landlord or Ground Landlord, as
the
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case may be, at the leased Premises, a permanent, accurate set of books and
records pertaining to gross receipts derived from business conducted on or from
the leased Premises during each day of the term hereof, and all supporting
records and such pertinent records shall be kept, retained, and preserved for at
least Three (3) years after the expiration of each lease year. Tenant shall
keep, retain, and preserve for at lease Two (2) years after the expiration of
each lease year all original sales records and sales slips or sales checks and
any other pertinent, original sales records, including cash register tapes. All
such books and records shall be open to inspection and audit by Landlord, Ground
Landlord and/or their agents at all reasonable times during ordinary business
hours.
6. Tenant shall occupy the lease Premises continuously for the purpose
stated in this Lease and carry on business during the hours customary in
comparable businesses similarly situated. This shall not prevent Tenant from
closing for brief periods when reasonably necessary for inventory, repairs,
remodeling (when permitted), or other legitimate purposes related to the
business carried on, or when closure is the result of a labor dispute, or other
factors not within Tenant's control.
7. Landlord is not, by virtue of this Article, a partner or joint venturer
with Tenant in connection with the business carried on under this Lease, and
Landlord shall have no obligation with respect to Tenant's debts or other
liabilities, and no interest in Tenant's profits.
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8. It is the intent of Landlord and Tenant that the rent herein specified
and reserved shall be absolutely net to Landlord, so that this Lease shall,
except as hereinafter provided to the contrary, yield net to Landlord the basic
rent and percentage rent specified herein during the term of this Lease.
9. In the event any rent is not paid when due, interest at the rate of one
percent (1%) per month, but not to exceed the maximum legal rate then allowable
by law, shall accrue thereon until all unpaid rent and interest has been paid in
full. Any acceptance by Landlord of a partial payment of rent and interest shall
not constitute a waiver of any remaining unpaid rent and/or interest which may
have accrued at that time or which may accrue thereafter.
10. All rents described herein shall be paid to Landlord without deduction
or offset at the office of the Landlord in Salem, Oregon or at such other place
as the Landlord or its authorized agent may, from time to time, designate in
writing.
11. Tenant hereby agrees to directly reimburse the Ground Lessor,
Xxxxxxxxxxxx Development, for the additional costs incurred in the relocation of
Tenant's Premises to the most northerly portion of Poplar Square, such
additional costs include redesign, replatting, additional site work other
relocation expenses; provided, however, that Tenant's liability for relocation
costs is limited to a maximum of Fifty Thousand Dollars ($50,000.00). Tenant
shall make payment directly to Ground Lessor within thirty (30) days of receipt
of a billing from Ground Lessor for such expenses.
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III
CONSTRUCTION
1. Landlord shall construct, at its sole cost and expense, upon the leased
Premises, a retail sales building in accordance with the plans and
specifications as described in Exhibit "C" attached hereto excepting nonmaterial
changes. In addition, Landlord shall construct parking areas and common area
improvements adjacent to the lease Premises substantially in-accordance with
plans and specifications, including the site plan attached hereto as Exhibit
"D."
2. Landlord shall forthwith apply for and obtain all necessary permits for
the construction of the building and improvements and shall hereupon cause said
construction to be commenced and pursued to completion in an expeditious manner.
Any material changes in the plans and specifications, or any material change
orders in the construction contract or contracts which may become necessary or
desirable during the course of construction shall be approved in writing by
Landlord and Tenant.
3. On completion, Landlord shall deliver to Tenant copies of the following:
(a) A certificate of completion by the architect who supervised the
construction stating that all work and construction has been substantially
completed in accordance with the approved plans and specifications, including
all approved changes or modifications, if any; and
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(b) Any certificate of occupancy, or equivalent permit or certificate,
which may be required by any governmental authority prior to issuance of any
business license required for Tenant's commencement of business on the lease
Premises.
4. All signs or symbols placed in the windows or doors of the leased
Premises, or upon any exterior part of the building by Tenant, shall be subject
to the approval of Landlord or Landlord's agents. Any signs placed on the leased
Premises shall be so placed upon the understanding and agreement that Tenant
will remove same at the termination of the tenancy herein created and repair any
damage or injury to the leased Premises caused thereby, and if not so removed by
Tenant then Landlord may have same so removed at Tenant's expense.
IV
COMMENCEMENT DATE
1. The commencement date of this Lease shall occur on the date Tenant opens
for business or Sixty (60) days after the delivery to Tenant of the certificates
described in Paragraph 3 of Article III above, which ever first occurs.
2. Tenant may enter the Premises prior to the commencement date for the
purposes of fixturing and stocking inventory, provided Tenant's fixturing and
stocking does not interfere with any construction work then remaining to be
done.
3. It is the intention of the parties that the commencement date of this
Lease, as defined in Paragraph 1 of this Article, shall occur on or before April
1,
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1986, and that Tenant shall be allowed access to the building for purposes of
fixturing and stocking, on or before February 1, 1986. If the commencement date
is delayed beyond April 1, 1986 because Landlord is unable to complete its work
(unless that inability results from Acts of God, delay by Tenant, matters beyond
the control of Landlord, or labor disputes) Landlord shall pay to Tenant, as a
penalty for such delay, the sum of One Thousand Dollars ($1,000) per day up to
the actual commencement date.
V
COMMON AREA
1. For the purposes of this Lease, "common area" shall mean all areas of
the real property described in Exhibit "D" outside the exterior walls of the
buildings located thereon which are not reserved for the exclusive use of Tenant
or Landlord. Common area shall include automobile parking areas, access roads,
driveways, sidewalks, pedestrian walkways and stairways, landscaped areas,
utility lines and systems. Common area shall not include the interior space of
any building located on Exhibit "D" nor any area immediately appurtenant to such
buildings which is reserved for the exclusive use of such building, such as
loading docks.
2. Landlord will, at all times during the term of this Lease, keep the
common area in good maintenance and repair, and shall:
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(a) Maintain suitable means or illumination sufficient to illuminate
the parking areas during all twilight and evening hours that the Tenant's store
is open for business and is in operation;
(b) Maintain and keep the parking areas, driveways, and access roads
in good condition and repair, with a hard surface pavement and properly striped;
(c) Clean and remove debris, 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, 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 all other portions of the common area in good order and
repair; and
(f) Obtain and maintain liability insurance insuring both Landlord and
Tenant against all liability for personal injury, death, or property damage
arising on or about the operations of the common area, in an amount of not less
than Two Hundred Thousand Dollars ($200,000.00) for death or injury to one
person, not less than Five Hundred Thousand Dollars ($500,000.00) for death or
injury arising out of one accident, and not less than One Hundred Thousand
Dollars ($100,000.00) for property damage.
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3. (a) 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 area during the lease term. "Actual costs of maintaining and operating
the common area shall include the following: All amounts paid by Landlord as
actual costs for maintaining and repairing the common area, 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 utility systems, electricity,
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, painting, and repainting the same;
installation, replacement, repair, and maintenance of traffic control and
directional signs and devices; premiums for liability and extended all-risks
insurance; real property taxes and assessments; personal property taxes on
equipment and materials used to maintain the common area; and policing the
common area and affording security and fire protection therefor. "Actual costs
of maintaining and operating the common area" shall also include a management
fee of ten percent (10%) of the above described costs; provided, that, in
computing said management fee, all capital items and all replacement items in
excess of One Thousand Dollars ($1,000), real estate taxes and insurance
premiums shall be excluded. Landlord agrees to expend only the monies reasonably
necessary for such
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operating and maintenance in order to keep the common area in good repair and
clean condition and to operate the same on a nonprofit basis to the end that the
expense in connection therewith shall be kept at a minimum. Costs attributable
to a contract between Landlord and an affiliated party shall not be included,
unless that contract is previously approved by Tenant. Tenant's approval shall
not be unreasonably withheld.
(b) Tenant's pro rata share of the actual costs of maintaining the
common area shall be a percentage equal to the gross leasable area of the
buildings on Tenant's Premises divided by the total gross leasable area of all
buildings (except the common area structures) located on the real property which
was jointly assessed. The gross leasable area of each building shall be
calculated by measuring the ground floor of such building from the outside
walls.
(c) The annual charge to the Tenant shall be paid in monthly
installments, in advance, at the time of the monthly rent payment, in an amount
estimated by Landlord. On or before April 1st 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 common area costs and
expenses 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 and expenses for such
period.
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4. Subject to the provisions of any declaration and establishment of
Protective Covenants, Conditions and Restrictions, and Grants of Easements which
may now or hereafter be filed of record with respect to the Premises and the
common area, the common area is maintained for the common use of all tenants,
subtenants and Landlord, their customers, visitors, employees, business
invitees, licensees and persons dealing with tenants, subtenants 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 area; provided,
however, that Landlord may make such rules and regulations governing the use of
the common area as may be reasonably necessary to regulate the use of such
common area, and may restrict the use of or access to any portion of the common
area 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 area or any buildings located on the real property
described in Exhibit "B".
VI
REAL PROPERTY TAXES
1. Tenant shall pay promptly and before delinquency any and all real
property taxes and assessments, of whatsoever kind or nature, levied or assessed
against the land, buildings, or other improvements constituting the leased
Premises or attributable thereto during the term of this Lease. Tenant shall
deliver to Landlord copies of receipts or other evidences of payment evidencing
payment of all such real
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property taxes and assessments when due. All real property taxes and assessments
payable for a period part of which shall be within the lease term and part of
which shall be before or after the lease term shall be prorated on a daily
basis.
2. In the event the leased Premises are not taxed separately and are part
of a larger parcel which is assessed as one parcel for property tax purposes,
Tenant shall pay only that portion of such taxes and assessments which are
attributable to the land, buildings, and other improvements constituting the
leased Premises. For purposes of determining the portion of such taxes and
assessments attributable to the leased Premises, the figures supplied by the
Land County Department of Assessment and Taxation or other similar taxing
authority as to the breakdown of said taxes and assessments shall be conclusive.
3. If no breakdown of the assessment can, after reasonable effort, be
obtained from the taxing authority, then Tenant shall reimburse Landlord for
Tenant's pro rata share of the taxes so paid, said pro rata share being a
percentage equal to the gross leaseable area of the buildings on Tenant's
Premises divided by the gross leaseable area of all buildings located on the
real property described in Exhibit "D."
4. Tenant shall have the right at its own cost and expense to contest, in
good faith, in any proper proceeding and in the name of Landlord if necessary,
the assessed valuation of the leased Premises or the amount, payment or
satisfaction of any tax or assessment agreed to be paid by Tenant if the
validity, amount, or right to assess or collect the same is disputed by Tenant
and Landlord agrees to cooperate
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with Tenant in this regard; provided, however, that Landlord in its sole
discretion may require Tenant to deposit with a suitable escrow company, in
order to secure to Landlord Tenant's performance of its obligations hereunder
with respect to such tax or assessment, a bond or cash deposit (or other
securities satisfactory to Landlord) sufficient to cover not less than one
hundred percent (100%) of the amount of the contested tax or assessment together
with interest, costs and penalties for the period during which such contest is
reasonably expected to be maintained, or Tenant may pay such contested
imposition or charge under protest. Landlord agrees to give reasonable
cooperation to Tenant in any such proceeding; provided, however, Tenant shall
hold Landlord harmless from, and shall reimburse Landlord for, any and all loss,
costs and expenses, including attorneys' fees, incurred by Landlord in
connection with any such proceedings.
5. Should there be in effect during the lease term (or any extension
thereof) any law, statute or ordinance which levies, assesses or imposes any tax
(other than an income tax) upon rents, Tenant shall pay such tax as may be
attributed to the rents under this lease or shall reimburse Landlord for any
such taxes attributable to this Lease as are paid by Landlord.
VII
USE OF PREMISES
1. Landlord is leasing the leased Premises for use as a retail store, and
Tenant shall use the leased Premises for no other purpose during the term of
this
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Lease without the written consent of Landlord, which consent shall not be
unreasonably withheld.
2. Tenant shall neither make nor knowingly permit any unlawful, improper,
immoral, or offensive use of said Premises, or any portion thereof, which will,
in any way, tend to create a nuisance or to disturb any persons in the
neighborhood of the leased Premises, or to unduly create or cause a fire hazard,
or to increase the fire insurance on the leased Premises, or permit any nuisance
which shall in any way be a violation of the statutes and laws of the State of
Oregon or the laws and ordinances of any political subdivision thereof.
3. 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.
4. Tenant shall, at all times, avoid any act or omission that would cause
Landlord to be in default of its obligations under the provisions of the Ground
Lease attached hereto as Exhibit "A".
VIII
UTILITIES
1. Tenant shall pay for all heat, light, power, water, sewage, and other
services or utilities used by Tenant on the leased Premises, and shall pay the
charges therefor as the same become due.
2. Landlord shall not be liable for any interruption or failure in the
supply of any utility to the leased Premises unless caused by negligence of
Landlord.
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3. Tenant's obligation to pay for utilities used on or about the leased
Premises shall begin when the leased Premises are substantially complete and are
available to Tenant for tenant fixturing and stocking.
IX
REPAIRS AND MAINTENANCE
1. Tenant shall maintain the leased Premises in good order and repair
during the term of this Lease, at Tenant's cost and expense. Tenant's duty to
maintain and repair includes but is not limited to: Maintaining exterior and
interior walls, including painting, interior and exterior entrances and fronts;
the roof and ceilings; all glass windows; doors; fixtures; wiring; lighting;
heating; air conditioning; plumbing fixtures; and foundations; provided,
however, that Landlord warrants the foundation, footings, roof and structural
members of the building against patent defects for a period of 60 months
beginning with the commencement date as defined in Article IV hereof; and
provided further that Landlord warrants all such work against latent defects for
a period of one (1) year beginning at the time of substantial completion of
construction as evidenced by the architect's certificate of completion described
in Paragraph 3(a) of Article III above. Tenant's remedy under this warranty
shall be limited to repair or replacement, at Landlord's option. If Tenant
refuses to make repairs as required, as soon as reasonably possible after
written demand, Landlord may, at its option, make such repairs, without
liability for interruption of the conduct of the business on the Premises, and,
upon completion of the repairs and the
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presentation of a xxxx, the costs of such repairs plus Fifteen Percent (15%) for
Landlord's overhead shall be paid by Tenant. At Landlord's election, such sums
owed by Tenant may be deemed additional rent.
2. Tenant shall have the right, from time to time, to make such alterations
and improvements to and decoration of the interior of the leased Premises as
shall be reasonably necessary or appropriate in Tenant's judgment for the
conduct of Tenant's business, provided that (a) the structural integrity shall
not be affected or diminished; (b) the value of the building and/or leased
Premises is not thereby diminished; (c) Landlord's written approval of all
alterations exceeding the cost of Fifty Thousand Dollars ($50,000) be first
obtained, which approval will not be unreasonably withheld; and (d) all fees,
costs, taxes, assessments and expenses relating to any such alterations,
improvements or additions shall be borne by Tenant. Tenant shall promptly pay
when due all such fees, costs and expenses and Tenant shall defend and hold
Landlord harmless from all costs, damages, liens, and expenses related thereto.
3. Tenant shall make no alterations or changes in the exterior of the
leased Premises without the express written approval of Landlord, which approval
shall not be unreasonably withheld; provided, however, that any such alteration
or change shall be subject to the conditions set forth in Paragraphs 2(a)
through (d) above.
4. All alterations or additions which cannot be removed from the leased
Premises without irreparable damage thereto shall also constitute a part of the
leased Premises and shall also remain thereon. Such other alterations,
additions, or
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improvements as are made and paid for by Tenant, and which are removable without
irreparable damage to the Premises, may be removed by Tenant at any time, and
Tenant shall repair any damage so incurred at the time of such removal. 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.
5. Tenant shall hold harmless and indemnify Landlord from and against any
costs, expenses, and liabilities from any mechanics', laborers', or
materialmen's liens which are caused or incurred by any act or omission of
Tenant or which may be filed against the Premises during the term of this Lease.
Whenever and as often as any mechanics', laborers', or materialmen's lien shall
have been filed against the leased Premises and/or building, based upon any act
or interest of Tenant or anyone claiming through Tenant, Tenant shall forthwith
take such action by bonding, deposit or payment as will remove or satisfy the
lien, and in default thereof after five (5) days' notice to Tenant, Landlord
without waiver of Landlord's rights may pay the amount of such lien or discharge
the same by deposit, and the amount so paid or deposited, with interest thereon,
shall be deemed additional rent reserved under this Lease, and shall be payable
with interest at the rate of one percent (1%) per month from the date of such
payment or deposit, and Landlord shall have the remedies herein provided for
default for Tenant's failure to pay such amount with interest thereon within
five (5) days after Landlord's written notice of the amount due.
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6. Tenant shall permit Landlord or Landlord's agents or lenders to inspect
or examine the leased Premises at such time and in such manner as to cause the
least possible interference with the conduct of Tenant's business.
X
SUBROGATION
1. Landlord hereby releases Tenant from any and all liability and waives
Landlord's right of recovery against Tenant, its agents and employees, for any
loss or damage to Landlord's property resulting from any hazard insurable under
a landlord's fire and extended coverage policy of insurance, including, but not
limited to, theft, fire, smoke, explosion, or water damage, and Landlord hereby
waives the subrogation rights of its insurance carriers under Landlord's
policies of insurance providing coverage against loss or damage by any such
hazard. Landlord shall take such steps as are necessary to inform its insurance
carriers of this provision and to have endorsements, if necessary, placed on
said insurance policies to carry into effect the provisions of this Paragraph.
2. Tenant hereby releases Landlord from any and all liability and waives
Tenant's rights of recovery against Landlord, its agents and employees, for any
loss or damage to Tenant's property resulting from any hazard insurable under a
tenant's fire and extended coverage policy of insurance, including, but not
limited to, theft, fire, smoke, explosion, or water damage, and Tenant hereby
waives the subrogation rights of its insurance carriers under Tenant's policies
of insurance providing coverage
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against loss or damage by any such hazard. Tenant shall take such steps as are
necessary to inform its insurance carriers of this provision and to have
endorsements, if necessary, placed on said insurance policies to carry into
effect the provisions of this Paragraph.
3. All of the above notwithstanding, the foregoing releases and waivers
shall be effective and applicable only if such releases and waivers are allowed
by the insurers of both Landlord and Tenant. Landlord and Tenant agree to make
their best efforts to obtain agreement to such releases and waivers.
XI
INSURANCE
1. (a) Tenant shall, at all times during the term of this Lease, keep all
buildings, improvements, and fixtures on the Premises insured to the extend of
One Hundred Percent (100%) of the full insurable value thereof, which for
purposes hereof shall be replacement cost, against loss or damage from fire, and
such policy or policies shall be New York standard form policies and shall
contain extended coverage provisions with loss of rents endorsement or such
other forms of coverage as may be approved by Landlord in writing. Tenant may
satisfy the foregoing loss of rents insurance requirement by maintaining
business interruption insurance in an amount satisfactory to Landlord and
assigning to Landlord the proceeds thereof which are attributable to the rents,
taxes, costs and other charges due hereunder. Such policies shall be taken out
with such reasonable and solvent insurance company or
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companies authorized to do business in Oregon as Tenant shall determine and as
Landlord shall reasonably approve. The proceeds of such policies shall be
payable to Landlord, Ground Landlord, Landlord's lender and Tenant as their
interests may appear.
(b) All such policies shall, to the extent obtainable, contain an
agreement by the insurers that such policies shall not be cancelled without at
least Ten (10) days' prior notice to Landlord. The original of such policy or
policies shall remain in possession of Tenant unless required by Landlord's
lender; provided, however, that Landlord shall have the right to receive from
Tenant, upon written demand, a duplicate policy or policies of any such
insurance.
2. Tenant covenants and agrees that it will at all times during the term of
this Lease indemnify, protect, defend and save Landlord harmless from and
against any and all claims, demands, losses, damages, costs, charges,
liabilities and attorneys' fees arising from damage or injury, actual or
claimed, of whatsoever kind or character, to persons or property occurring in,
on or about the leased Premises or other areas exclusively used by Tenant;
provided, however, nothing herein shall require Tenant to indemnify, protect,
defend or save Landlord harmless from the consequences of Landlord's sole
negligence or the sole negligence of any of Landlord's agents or employees. In
furtherance of said protection, Tenant agrees, at all times during the term of
this Lease, at Tenant's expense, to carry comprehensive general public liability
and property damage insurance with an insurer satisfactory to Landlord, insuring
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Landlord, its officers, employees and agents, Ground Landlord, and Tenant, and
any persons designated by Landlord, against all liability for personal injury,
disease or death or for injury to or damage to property occurring upon, in or
about the leased Premises or other areas exclusively used by Tenant, in an
amount of not less than Three Million Dollars ($3,000,000) for personal injury,
sickness, disease or death to one person, not less than Three Million Dollars
($3,000,000) for injuries arising out of any accident, and not less than one
Million Dollars ($1,000,000) for property damage; provided, however, the limits
hereinabove provided shall be the base and shall be increased as of January 1,
1986 and each succeeding fifth (5th) anniversary of each year of this Lease or
any extension thereof by a percentage equal to seventy-five percent (75%) of the
increase of the Average Index in the same manner as provided in Article XXVI.
The policy shall contain a clause that the insurer will not cancel or change the
insurance without giving Landlord Thirty (30) days' prior notice. A certificate
of such insurance shall be delivered to Landlord, and, if required by Landlord's
lender, the original of such policy shall be delivered to such lender.
XII
DESTRUCTION OF PREMISES
1. In the event of damage to or destruction of the leased Premises by
fire or other casualty, Tenant, at Tenant's sole expense, shall promptly restore
the leased Premises as nearly as possible to its condition prior to such damage
or destruction. All insurance proceeds received by Landlord pursuant to the
provisions of this Lease,
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less the cost, if any, of such recovery, shall be held in trust and applied by
Landlord to the payment of such restoration, as such restoration progresses.
2. If the proceeds of insurance are insufficient to pay the full cost of
repair or restoration, Tenant shall pay the deficiency. If the insurance
proceeds exceed such cost, the excess shall be paid to Tenant.
3. If any insurance proceeds are paid to a mortgagee, then any disbursement
of insurance proceeds by such mortgagee shall be deemed to have been made by
Landlord. If any such mortgagee shall refuse to disburse any portion of
insurance proceeds to which Tenant is entitled, Landlord shall provide an
equivalent sum from other sources.
4. If the leased Premises or any part thereof, or the furniture,
furnishings, and fixtures therein, shall be destroyed or damaged, Tenant's
obligations for the payment of basic rent and other charges hereinabove set
forth shall be abated to the extent the leased Premises are untenantable during
the period of repair, provided, however, Landlord shall be entitled to insurance
proceeds under the policy for loss of rents or business interruption.
5. Notwithstanding anything contained in subparagraphs 1 through 4 of this
Article, if the leased Premises are substantially destroyed during the final
five years of the lease term, Landlord shall not be required to rebuild unless
Tenant extends the remaining term of the lease for ten years from the date of
the destruction.
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XIII
CONDEMNATION
1. If a condemning authority takes all of the leased Premises, or a portion
sufficient to render the remaining Premises reasonably unsuitable for the use
which Tenant was making of the leased Premises, this Lease shall terminate as of
the date title vests in the condemning authority. Landlord, Tenant and Ground
Landlord shall be entitled to all of the proceeds from the condemnation, as
their interests may appear.
2. 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,
this Lease shall continue, and Landlord shall immediately make such repairs and
alterations to the Premises as are necessary to restore the remaining Premises
to a condition as comparable as reasonably practicable to that existing at the
time of condemnation. Basic 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 basic rent due hereunder shall
be reduced in the proportion that the number of square feet taken by the
condemning authority bears to the original square footage leased hereunder.
3. For purposes of this Lease, a taking by a condemning authority shall
include any purchase or other acquisition in lieu of condemnation.
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XIV
SUBLEASE AND ASSIGNMENT
This Lease is personal to Tenant, and Tenant may not assign or sublet all
or any portion thereof or permit any other person or persons to occupy the
leased Premises or any portion thereof without the prior written consent of
Landlord, which consent shall not unreasonably be withheld. The interest of
Tenant or such assignee cannot be sold, assigned, transferred, seized, or taken
by operation of law or under or by virtue of any execution or other process,
attachment, or proceeding instituted against Tenant, or under or by virtue of
any bankruptcy or insolvency proceeding had in regard to Tenant, or in any other
manner, except as above specified; and any violation of the provisions thereof
by Tenant, whether voluntary or involuntary, shall constitute a breach of this
Lease. No assignment or sublease shall accomplish a novation, and Tenant shall
not be released from performing any of the terms, covenants, and conditions of
this Lease.
XV
SUBORDINATION
1. Upon request of Landlord, Tenant will subordinate its rights hereunder
to the lien of any first mortgage (which shall for purposes of this Lease be
deemed to include a Deed of Trust) now or hereafter in force against the land
and buildings of which the leased Premises are a part or upon any building
hereafter placed upon the land of which the leased Premises is a part, and to
all advances made or hereafter to
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be made upon the security thereof. This Article shall be self-operative, and no
further instrument of subordination shall be required from Tenant. Tenant hereby
constitutes Landlord as its attorney in fact to execute any subordination
agreement required by Landlord's mortgagee on Tenant's behalf. Nothing contained
in this Article shall require Tenant to agree to any subsequent modification in
the term of this Lease, nor shall any mortgagee succeeding to Landlord's
interest have any greater rights hereunder than Landlord.
2. Upon the request by Landlord, Tenant agrees to provide an Estoppel
Certificate to Landlord's mortgagee, in substantially similar form to Exhibit
"E", attached hereto, but amended, as necessary, to reflect the facts as of the
date each such Estoppel Certificate is requested.
3. If Landlord can obtain financing only upon the basis of amending this
Lease for lender's protection, Landlord and Tenant shall amend this Lease to the
extent necessary to protect lender; provided that all such amendments shall be
limited to lease provisions relating to protection of the lender, and further
provided that no amendment shall increase any obligation of the Tenant
(including, but not limited to Tenant's obligation for basic rent, percentage
rent or other payments hereunder) or restrict or limit any right of Tenant
hereunder.
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XVI
DEFAULT
1. The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) If Tenant shall fail to pay any installments of the rent, or any
other charge designated herein to be paid, on the date that same is due, and
such failure shall continue for a period of Ten (10) days after written notice
from Landlord.
(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 and
Tenant shall not have commenced to 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 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 a transfer in
fraud of creditors, or shall make an assignment for the benefit of creditors, or
if any petition under any section or chapter of the National Bankruptcy Act
shall be filed to subject Tenant's affairs to the same, or if a receiver or
trustee shall be appointed for all or substantially all of the assets of Tenant.
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2. Upon the occurrence of any of the foregoing events of default, Landlord
shall, without any notice or demand whatsoever, have the option to:
(a) Terminate this Lease upon written notice to Tenant, in which event
this Lease and the term thereby demised shall expire and terminate on the date
specified in such notice; and all rights of Tenant under this Lease shall on
such date expire and terminate. Upon such expiration Tenant shall immediately
quit and peacefully surrender the Premises and building to Landlord, and, if
Tenant fails to do so, Landlord may enter upon and take possession of the leased
Premises and building and expel or remove Tenant, and any other person who may
be occupying said Premises, or any part thereof, and Tenant agrees to pay to
Landlord, on demand, the amount of all loss and damage which Landlord may suffer
by reason of such termination, whether through inability to relet the Premises
on satisfactory terms or otherwise.
(b) 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 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. No reentry by Landlord shall be deemed an acceptance of a
surrender of this Lease or shall absolve or discharge Tenant from any liability
under this Lease.
(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
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Landlord, on demand, for expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease.
3. Landlord may pursue any of the foregoing remedies singly or cumulatively
and, in addition, any other remedies provided by law; nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder, nor shall any termination and cancellation include a
cancellation of Tenant's obligations hereunder for any deficiency upon reletting
subsequent to said termination or cancellation, such obligations being
independent covenants surviving said termination or cancellation. In the event
of any such expiration or termination, whether or not the leased Premises and
buildings, or any part thereof, shall have been relet, Tenant shall pay to
Landlord the entire rent and all other charges required to be paid by Tenant up
to the time of such expiration or termination of this Lease, and thereafter
Tenant, until the end of what would have been the term of this Lease in the
absence of such expiration or termination, shall be liable to Landlord, and
shall pay to Landlord, as and for liquidation and agreed current damages for
Tenant's default;
(a) The amount of fixed rent, percentage rent and other charges which
would be payable under this Lease by Tenant if this Lease were still in effect,
less:
(b) The net proceeds of any reletting, after deducting all of
Landlord's reasonable expenses in connection with such reletting, including,
without
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limitation, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, alteration costs, and expenses of preparation for such
reletting.
4. For purposes of this Article, the amount of the percentage rent that
would be payable under this Lease by Tenant if this Lease were still in effect
shall be computed for the twelve (12) consecutive months which produced the
highest percentage rent of the twenty-four (24) month period (or any lesser
period if the termination requiring this computation takes place less than
twenty-four (24) months after the commencement date) next preceding the month in
which the occurrence requiring such computation takes place. Tenant shall pay
such current damages (hereinafter called "deficiency") to Landlord monthly on
the days on which rent would have been payable under this Lease if the term of
this Lease were still in effect, and Landlord shall be entitled to recover from
Tenant each monthly deficiency as the same shall arise.
5. At any time after such expiration or termination whether or not Landlord
shall have collected any deficiencies as aforesaid, Landlord, at its option,
shall be entitled to recover from Tenant, and Tenant shall pay to Landlord, on
demand, as and for liquidated and agreed final damages for Tenant's default, an
amount equal to the difference between the rent reserved hereunder (including
percentage rent determined as herein provided) for the unexpired portion of the
term demised (as of the date of such demand) and the then fair and reasonable
rental value of the leased Premises and building for the same period. In
computation of such final damages the difference
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between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the leased Premises and
building for the period for which such installment was payable shall be
discounted from the date of payment of such final damages at the rate of ten
percent (10%) per annum.
6. If Tenant shall default in its covenant to pay the rental as provided
for herein, Landlord shall have a lien for such sums upon the personal property
of Tenant located upon the leased Premises and may enter the same and take
possession of said personal property and sell it at a public or private sale,
and apply the proceeds thereof, after deducting the expenses of said sale, upon
the monies due to Landlord prompting the same. Any public or private sale shall
be held in a commercially reasonable manner.
XVII
QUIET ENJOYMENT
1. Conditioned upon Tenant's paying the rent herein provided and performing
and fulfilling all the covenants, agreements, conditions, and provisions herein
to be kept, observed, or performed by Tenant, and except as hereinafter provided
in this paragraph, the Tenant shall and may, at all times during the term hereby
granted, peaceably, quietly, and exclusively have, hold, and enjoy the leased
Premises; provided, however, Landlord shall not be responsible for the
compliance of Ground Landlord with the provisions of Section 20.2 of the Ground
Lease, attached hereto as Exhibit A, nor shall Landlord be responsible for any
dispossession resulting
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therefrom. It is understood that the Premises are owned by the Ground Landlord
as above set forth. Prior to or at the time of the commencement of this Lease,
Ground Landlord, Landlord and Tenant shall enter into an attornment and
nondisturbance agreement, which agreement will provide in part as follows: (a)
that the rights of Tenant will be recognized and (b) that, in the event of
default by Landlord and/or foreclosure of the mortgage, this Sublease will
remain in effect according to its terms, with substitution of Ground Landlord or
the purchaser at the foreclosure sale as Landlord; in accordance with this
section, Landlord and Tenant shall execute the attornment and nondisturbance
agreement attached hereto as Exhibit F prior to the commencement of this Lease.
XVIII
COMPLIANCE WITH THE LAW
1. Tenant shall pay promptly when due and before delinquency all taxes
assessed upon Tenant's fixtures, furnishings, equipment, stock, inventory,
leasehold interest, or other personal property in or about the leased Premises.
2. Tenant shall comply with all applicable laws, orders, and regulations of
federal, state, or municipal authorities and with any direction of any public
officer, pursuant to law, which shall impose any duty upon Tenant with respect
to the leased Premises. Tenant, at Tenant's sole expense, shall obtain all
licenses or permits which may be required for the conduct of Tenant's business,
or for the making of repairs,
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alterations, improvements, or additions. Landlord, when necessary, will join
with Tenant in applying for such permits and licenses.
XIX
SURRENDER
1. If Tenant shall hold over and remain in possession of the leased
Premises after the expiration of the 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.
2. Upon the expiration of the term of this Lease or any sooner termination
thereof, Tenant covenants and agrees that Tenant shall, without notice, promptly
and peaceably surrender possession of the leased Premises to Landlord in as good
a condition as at the time of Tenant's entry thereon, reasonable wear and tear,
fire, and other insured or unavoidable causes excepted.
3. If Tenant is not then in default as to any of the terms of this Lease,
Tenant shall have the right to remove all trade fixtures erected or attached to
the Premises by Tenant upon the expiration or termination of this Lease or any
extension thereof, provided that Tenant shall repair any physical damage to the
leased Premises resulting from such removal.
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XX
NONWAIVER
Any waiver of any breach of covenants herein contained to be kept and
performed by Tenant shall not be deemed or considered as a continuing waiver,
and shall not operate to bar or prevent Landlord from declaring a forfeiture 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.
XXI
NOTICES
All notices provided for in this Lease to be served upon the other party
shall be done in writing and by Certified Mail, return receipt requested,
postage prepaid, and, if served upon Landlord, shall be addressed to Landlord at
The Xxxxx-Xxxxxxxx Company, 0000 Xxxxxxxxx Xxxxx X.X., Xxxxx, Xxxxxx 00000,
Attention: Xxxxxx X. Xxxxx, Xx., Partner, and, if served upon Tenant, shall be
addressed to Tenant at G.I. Joe's Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxx
00000; provided, however, that either party may designate a different address by
giving the other party written notice thereof. Such notice shall be deemed to
have been served within Forty-Eight (48) hours after it has been deposited in
any United States Post Office in Washington or
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Oregon, postage prepaid, certified mail, return receipt requested, which shall
be valid and sufficient service of notice for all purposes; or if notice is
personally delivered or otherwise given, such notice shall be deemed to have
been served at the time of delivery thereof.
XXII
ATTORNEYS' FEES
1. 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 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.
XXIII
MODIFICATION
1. The terms and conditions of this Lease shall be incapable of
modification, change, or amendment, except by endorsement, in writing, attached
hereto and bearing the separate signature in execution thereof by the parties
hereto, or their successors in interest.
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XXIV
RECORDATION
1. A memorandum of lease in the form attached hereto as Exhibit G shall be
recorded upon the commencement of this lease.
XXV
SUCCESSION
1. This Lease shall be binding upon the parties hereto, their legal
representatives, heirs, successors, and, as far as this Lease is assignable by
the terms hereof, to 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 Tenants and Landlords, 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.
XXVI
RENEWAL OPTION
1. (a) At the expiration of the original term of this Lease, if Tenant is
not then in default under any of the provisions hereof, Landlord hereby grants
to Tenant the option to extend the term of this Lease for Two (2) consecutive
periods of Five (5) years each (each of such periods being hereafter referred to
as the "extended term"), upon condition that, at the time each such renewal
option is exercised, the Lease is then in effect and there is then no default in
the performance of any condition
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hereof. Such extension shall be upon the terms and conditions of this Lease in
effect during the original term hereof except as set forth below.
(b) (i) The rent during each extended term hereof shall include both
basic rent and percentage rent as provided in this Lease, except that the
basic monthly rent for the first extended term shall be the amount payable
as basic monthly rent in 1999 multiplied by a fraction the numerator of
which is the Average Index (as hereinafter defined) as published the month
during which such extended term shall commence and the denominator of which
is the Average Index as published for October 1999. "Average Index" as used
herein shall mean the average of (A) the "Consumer Price Index (United
States City Average for All Urban Consumers)--All Items (Reference Base:
1967 = 100)" and (B) the "Consumer Price Index (United States City Average
for Urban Wage Earners and Clerical Workers (Revised))--All Items
(Reference Base: 1967 = 100)," each published by the United States
Department of Labor, Bureau of Labor Statistics. In the event the Average
Index or any constituent index thereof shall hereafter be converted to a
different standard reference base or otherwise revised, the determination
of the percentage increase shall be made with the use of such conversion
factor, formula or table for converting such indexes as may be published by
the Bureau of Labor Statistics or, if such bureau shall not publish the
same, then with the use of such conversion factor, formula or table as may
be published by Prentice Hall, Inc. or any other
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nationally recognized publisher of similar statistical information. In the
event any such index shall cease to be published, then for the purposes of
this Article XXVI, there shall be substituted such other index as Landlord
and Tenant shall agree upon and if they are unable to agree within ninety
(90) days after any such index ceases to be published, such matter shall be
determined by arbitration in accordance with the rules of the American
Arbitration Association for the purpose of establishing the most nearly
equitable alternative index to accomplish the purposes set forth herein.
(ii) The basic rent during each succeeding extended term shall be
the amount payable as basic monthly rent for the immediately preceding
extended term multiplied by a fraction the numerator of which is the
Average Index as published for the last month of the immediately preceding
extended term and the denominator of which is the Average Index as
published for the first month of the immediately preceding extended term.
(iii) All of the above notwithstanding, nothing herein to the
contrary shall be construed as at any time requiring Tenant to pay to
Landlord a sum less than the average annual rental for the last three (3)
years of the preceding term which has not recently expired. (It is the
intent of this proviso that Landlord shall receive the basic rent according
to the formula herein or an average of the last three (3) years' rent,
whichever is greater.)
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(c) Tenant shall exercise the option for each such extended term by
notifying Landlord in writing and not less than thirty (30) months prior to the
last day of the term of this Lease or each such renewal period.
(d) All of the above notwithstanding, the term of this Lease shall not
be renewable with respect to any period of time during which Landlord does not
hold a leasehold estate in the leased Premises.
XXVII
CONDITIONS PRECEDENT TO LIABILITY
1. If Landlord is unable, after using its best efforts, to obtain any
necessary zone changes, or the building permits, land use and design approvals,
or other similar governmental authorizations to commence construction of the
leased Premises by October 1, 1984, either party may thereafter give notice to
the other of the immediate rescission of this Lease.
XXVIII
PERSONAL PROPERTY
All personal property of every kind or description that may at any time be
in the leased Premises shall be at Tenant's sole risk or at the risk of those
claiming under Tenant, and Landlord shall not be liable for any damage to said
property or loss to the business or occupation of Tenant caused in any manner
whatsoever, except as may result from and be caused by the sole negligence of
Landlord or its agents or employees.
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XXIX
EFFECT OF INVALIDITY
If any term or provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of the terms and provisions to
persons and circumstances other than those to which it had been held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
Landlord:
THE XXXXX-XXXXXXXX COMPANY
By /s/ XXXXXX X. XXXXX, XX.
--------------------------------------
Xxxxxx X. Xxxxx, Xx.
By /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxxx
Tenant:
G.I. JOE'S, INC., an Oregon corporation
By /s/ XXXXX X. XXXXXXX
--------------------------------------
Its Secretary/Treasurer
STATE OF OREGON )
) ss.
COUNTY OF CLACKAMAS )
On this 28th of March, 1984, before me, the undersigned, a Notary Public in
and for the State of Oregon, commissioned and sworn, personally appeared Xxxxx
X. Xxxxxxx and _______________________, to me known to be the persons who signed
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as Secretary-Treasurer and ___________________, respectively, 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
they were duly elected, qualified and acting as said officers of the
corporation, that they were authorized to execute said instrument and that the
seal affixed, if any, is the corporate seal of said corporation.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ XXXXXXX XXXXXXX
-----------------------------------------
NOTARY PUBLIC in and for the State
of Oregon, residing at Lake Oswego
My commission expires: 0-00-00
XXXXX XX XXXXXX )
) ss.
COUNTY OF CLACKAMAS )
On this 28th of March, 1983, before me, a Notary Public in and for the
State of Oregon, duly commissioned and sworn, personally appeared Xxxxxx X.
Xxxxx, Xx., to me known to be the individual who executed the within and
foregoing instrument, and acknowledged said instrument to be his free and
voluntary act and deed, for the uses and purposes therein mentioned.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ XXXXXXX XXXXXXX
-----------------------------------------
NOTARY PUBLIC in and for the State
of Oregon, residing at Lake Oswego
My commission expires: 0-00-00
XXXXX XX XXXXXX )
) ss.
COUNTY OF CLACKAMAS )
On this 28th of March, 1983, before me, a Notary Public in and for the
State of Oregon, duly commissioned and sworn, personally appeared Xxxxxx X.
Xxxxxxxx, to me known to be the individual who executed the within and foregoing
instrument, and
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acknowledged said instrument to be his free and voluntary act and deed, for the
uses and purposes therein mentioned.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ XXXXXXX XXXXXXX
-----------------------------------------
NOTARY PUBLIC in and for the State
of Oregon, residing at Lake Oswego
My commission expires: 3-12-87
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