1
EXHBIIT 10.15
XXXXXXXXXX XX XXXXXX XXXXXXX
Xxxxxxxxx, Xxxxxx
LEASE
Between
PACIFIC REALTY ASSOCIATES, L.P.
a Delaware limited partnership,
as Landlord
and
G.I. JOE'S, INC.
an Oregon corporation,
as Tenant
Dated: 1/28, 1998
2
LEASE SUMMARY
NOTE: This Lease Summary is provided solely as a convenience to Landlord to
summarize certain Lease provisions and is not to be given to or relied on by
Tenant. It is not a complete summary of all material terms and conditions of
this Lease. In the event of any inconsistency between any information shown on
this Lease Summary and the provisions of this Lease, the provisions of this
Lease govern.
Date of Lease: January 28, 1998
Landlord: PACIFIC REALTY ASSOCIATES, L.P., a Delaware limited partnership
Tenant: G.I. JOE'S, INC., an Oregon corporation
Tenant's Trade Name: G.I. Joe's
Type of Business: Retail sale of sporting goods, automobile parts and supplies
and related goods and products.
Gross Leasable Area of Premises: A building containing approximately 55,120
square feet plus an Seasonal Sales Area of approximately 2,400 square feet for a
total of 57,520 square feet
Minimum Business Hours: Monday to Saturday 10 a.m. to 7 p.m.
Sunday 12 p.m. to 6 p.m.
Address of Premises: Crossroads at Xxxxxx Xxxxxxx
Xxxx XXX-00
Xxxxxxxxx, Xxxxxx
Term Commencement Date: See Section 1.27 hereof
Term: Twenty (20) years with four (4) five (5) year options.
Monthly Fixed Minimum Rent (estimated): not to exceed $48,963.00
Percentage Rent: $ -0-
Security Deposit: $ -0-
Notice Address of Landlord: PacTrust
Attn: General Counsel
00000 X.X. Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
PAGE 1
3
Notice Address of Tenant: G.I. Joe's, Inc.
Attn: Xxxx Xxxxxxx, President
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Tenant's Proportionate Share: Tenant's Share of Common Area Costs and other
charges allocable of the tenants of the Shopping Center, calculated as set forth
in Section 1.19 hereof.
PAGE 2
4
LEASE
THIS LEASE (this "Lease") is made and entered into as of January 28, 1998,
by and between PACIFIC REALTY ASSOCIATES, L.P., a Delaware limited partnership
("Landlord"), and G.I. JOE'S, INC., an Oregon corporation ("Tenant").
IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED HEREIN,
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS.
The terms set forth in this Section 1 shall have the meanings set forth
below for each such term. Other terms used in this Lease and the Exhibits hereto
not defined in this Section 1 shall have the meanings set forth elsewhere in
this Lease and the Exhibits hereto.
1.1. Building. The Building designated "G.I. Joe's" which is a portion of
the Premises and is situated in the Shopping Center as shown on Exhibit A.
1.2. Common Area. All areas and facilities within the Shopping Center not
appropriated to the exclusive occupancy of tenants, including all Parking Area,
sidewalks, pedestrian ways, driveways, drive-through lanes, signs, service
delivery facilities, common storage areas, landscape areas, common utility
facilities, and all other areas in the Shopping Center established by Landlord
for non-exclusive use.
1.3. Common Area Maintenance Costs. The total of all costs and expenses
paid or incurred by Landlord in connection with the operation, maintenance,
ownership, repair, and replacement of the Common Area and Useable Open Space.
Without limiting the generality of the foregoing, Common Area Maintenance Costs
include the Management Fee and all costs of and expenses for:
(i) The maintenance of all paved surfaces and curbs in a smooth and
evenly covered condition which maintenance shall include, without
limitation, cleaning, sweeping, restriping, repairing, resealing and
resurfacing. For the purposes of this Section, any overlay of the drive and
parking area shall be considered a repair or maintenance item.
(ii) The periodic removal of all papers, debris, filth, refuse, ice
and snow, including sweeping as necessary to keep the Common Area and
Useable Open Space in a first-class, clean and orderly condition. All
sweeping shall be conducted at appropriate intervals and during such times
so as to minimize
PAGE 3
5
interference with the conduct of business or use of the Common Area by
Tenant and other occupants of the Shopping Center.
(iii) The placing, cleaning, keeping in repair, replacing and
repainting any and all appropriate directional signs or markers, including
any handicapped parking signs.
(iv) The operation, repair, cleaning and replacing when necessary of
Common Area lighting facilities as may be reasonably required.
(v) The cleaning and maintaining of all landscaped areas, including
landscaping and planters adjacent to exterior walls of buildings; repairing
automatic sprinkler systems or water lines in the Common Area and Useable
Open Space; irrigating, weeding, pruning, fertilizing and replacing shrubs,
planting outside flowers and other landscaping as necessary.
(vi) The maintaining, cleaning, and repairing of any and all common
storm drains, utility lines, sewers and other utility systems and services
located in the Common Area and Useable Open Space which are necessary for
the operation of the Common Area and Useable Open Space, and the
maintenance and replacement of the trunk line portion of utility lines
serving the Building Areas in the Shopping Center.
(vii) The cleaning (including washing and/or steam cleaning),
maintenance and repair of all sidewalks, including those adjacent and
contiguous to buildings located within the Shopping Center and Useable Open
Space. Sidewalks shall be cleaned at appropriate intervals during such
times so to minimize interference with the conduct of business or use of
the Common Area and Useable Open Space by Tenant and other occupants of the
Shopping Center.
(viii) The obtaining of comprehensive general liability insurance
coverage for the Common Area in accordance with the requirements of Section
6.2.
(ix) The installation and maintenance of outside decorations.
1.3.1 For purposes of this Agreement, Common Area Maintenance Costs
shall not include: (i) any late charges or fees, provided Tenant has timely paid
its Proportionate Share of Common Area Maintenance Costs and Management Fee
pursuant to Section 12.1; (ii) any costs to clean up or repair the Common Area
resulting from construction, maintenance or replacement of buildings (which
shall be the sole obligation of the party owning such building(s); (iii)
Landlord's profit,
PAGE 4
6
administrative and overhead costs (such as rent, legal, supplies, utilities and
wages or salaries paid to management or supervisory personnel), except for the
Management Fee, it being further agreed that if a person is involved with
matters in addition to Common Area operational maintenance at the Shopping
Center, then Landlord shall allocate such person's time to properly reflect the
various duties; (iv) entertainment, transportation, meals, and lodging of
anyone; (v) amounts paid to persons or entities affiliated with, controlled by,
controlling of, or under common control with the Landlord, except as
specifically approved in advance by Tenant after full disclosure of the nature
of the relationship, and then only in amounts not greater than those which would
have been changed by an unaffiliated party in an arms-length transaction; and
(vi) any debt service.
1.4. CPI. The Consumer Price Index, All Items, for the Portland,
Oregon/Vancouver, Washington Geographic Area, All Urban Consumers, published by
the Bureau of Labor Statistics of the United States Department of Labor
(1982-1984 equals 100). If the Base Year of the CPI is changed, then all
calculations pursuant to this Lease which require the use of the CPI shall be
made by using the appropriate conversion factor published by the Bureau of Labor
Statistics (or successor agency) to correlate to the Base Year of the CPI herein
specified. If no such conversion factor is published, then Landlord shall, if
possible, make the necessary calculation to achieve such conversion. If such
conversion is not in Landlord's judgment possible, or if publication of the CPI
is discontinued, or if the basis of calculating the CPI is materially changed,
then the term "CPI" shall mean (i) comparable statistics on the cost of living,
as computed by an agency of the United States Government performing a function
similar to the Bureau of Labor Statistics, or (ii) if none, by a substantial and
responsible periodical or publication of recognized authority most closely
approximating the result which would have been achieved by the CPI, as may be
determined by Landlord in the exercise of its reasonable good faith business
judgment.
1.5. Core Area. That portion of the Shopping Center outlined by dashed line
on the Site Plan attached hereto as Exhibit A and consisting of approximately
Seven Hundred Twenty Thousand Four Hundred Twenty-one (720,421) square feet of
land.
1.6. ECR. That certain Construction, Operation and Reciprocal Easement
Agreement affecting the Shopping Center, made and entered into as of November
26, 1997, by and between Landlord and Waremart, Inc., as amended from time to
time.
1.7. Environmental Laws. All statutes, ordinances, orders, rules, and
regulations of all federal, state, or local governmental agencies relating to
the use, generation, manufacture, installation, Release, discharge, storage, or
disposal of Hazardous Materials.
PAGE 5
7
1.8. Event of Default. The occurrence of any of the following:
1.8.1. Vacation or Abandonment. Vacation or abandonment of the
Premises for a continuous period in excess of sixty (60) days.
1.8.2. Nonpayment of Money. Failure to pay when due Fixed Minimum
Rent, Common Area Maintenance Costs, Taxes, or any other charge or sum due and
payable by Tenant under this Lease.
1.8.3. Prohibited Assignment or Subletting. Any assignment or
subletting by Tenant in contravention of the terms and conditions of Section 13.
1.8.4. Insolvency. The admission by Tenant in writing of its inability
to pay its debts as they become due; the filing by Tenant of a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future statute, law, or
regulation; the filing by Tenant of an answer admitting or failing timely to
contest a material allegation of a petition filed against Tenant in any such
proceedings or, if within thirty (30) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future statute, law, or regulation, such proceeding shall not have been
dismissed; the appointment of a receiver or trustee to take possession of all or
substantially all of the assets of Tenant; a general assignment by Tenant for
the benefit of creditors; any action or proceeding commenced by Tenant under any
insolvency or bankruptcy act or under any other statute or regulation having as
its purpose the protection of creditors, or any such action commenced against
Tenant and not discharged within thirty (30) days after the date of
commencement; or the attachment, execution, or other judicial seizure of all or
substantially all of Tenant's assets or the Premises, if such attachment or
other seizure remains undismissed or undischarged for a period of ten (10) days
after the levy thereof.
1.8.5. Failure to Perform Other Obligations. Failure to perform any
other term, obligation, covenant, or agreement under this Lease.
1.9. Exhibits. The following exhibits, which are attached hereto and made a
part of this Lease:
Exhibit A - Site Plan
Exhibit B - Legal Description of Shopping Center
Exhibit C - Scope of Landlord's Work and Tenant's Work
Exhibit D - Form of Certificate of Commencement of Term
Exhibit E - Rules and Regulations
Exhibit F - Rent Calculations
PAGE 6
8
1.10. Gross Leasable Area. The number of square feet of all areas in the
Shopping Center appropriated to the exclusive use or occupancy of the respective
Shopping Center tenants or owner/occupants, including free-standing structures
and uses, whether or not such areas are actually leased or occupied, measured
from the exterior surface of exterior walls (and extensions thereof for
openings), and/or from the center line of party or common walls or demising
partitions. Notwithstanding the foregoing, Landlord may exclude from such Gross
Leasable Area any portion of the Shopping Center so as long as such exclusion
does not increase the costs of Tenant hereunder and such portions are owned and
maintained by a third party.
1.11. Gross Sales. The entire gross amount of the price, fee, commission,
charge, or other consideration charged or received, whether wholly or partly for
cash or on credit or otherwise, for all goods, wares, merchandise, services, or
other business activities sold, leased, licensed, delivered, performed, or made,
in, at, upon, or from any part of, or through any use of, the Premises by
Tenant, or by means of any mechanical or vending device, or from orders secured
or received in the Premises by telephone, mail, house to house, or other
canvassing by personnel operating from, reporting to, or under the supervision
of, any employee, agent, or representative of Tenant located at or operating out
of the Premises, or which Tenant, in the normal and customary course of its
operations, would credit or attribute to its business in the Premises, or by
other means, whether or not filled elsewhere.
1.12. Hazardous Materials. Petroleum, asbestos, polychlorinated biphenyls,
radioactive materials, radon gas, or any chemical, material, or substance
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous waste", "restricted
hazardous waste", "toxic substances", or words of similar import, under any
applicable laws, including but not limited to, Federal Water Pollution Act, as
amended (33 U.S.C. 1251 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. 6901 et seq.), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. 1801 et seq.), and
all similar statutes, rules, regulations, ordinances, and orders of the District
of Columbia.
1.13. Interest. The per annum rate equal to the greater of (i) eighteen
percent (18%) or (ii) the prime rate, reference rate, or succeeding similar
index, as published in the Wall Street Journal, in effect from time to time plus
two percent (2%), but not to exceed the maximum rate allowed by applicable usury
law.
1.14. Lease Year. Each period during the Term commencing on January 1 and
ending on December 31 next succeeding, except that the first Lease Year shall
PAGE 7
9
commence on the first day of the Term and end on December 31 next succeeding,
and the last Lease Year shall end on the last day of the Term.
1.15. Management Fee. The management and administrative fee equal to ten
percent (10%) of the total Common Area Maintenance Costs (after deducting
therefrom all sums paid for taxes, insurance and capital expenditures exceeding
Ten Thousand Dollars [$10,000.00])for the Lease Year in question. The Management
Fee shall be paid to Landlord as reimbursement for its direct internal
administration and overhead costs incurred in the operation and management of
the Common Area hereunder (such as wages and salaries paid by Landlord to its
employees engaged in property management or accounting) and no such costs shall
be included in Common Area Maintenance Costs.
1.16. Month. Each full calendar month during the Term.
1.17. Seasonal Sales Area. That portion of the Premises designated
"Seasonal Sales Area" and shown as cross-hatched on Exhibit A hereto.
1.18. Parking Area. All Common Area (except sidewalks and service delivery
facilities) now or hereafter designated by Landlord for the parking or access of
motor vehicles, including roads, traffic lanes, drive-through lanes, vehicular
parking spaces, landscaped areas, and walkways.
1.19. Premises. The Building containing approximately fifty-five thousand
one hundred twenty (55,120) square feet of Gross Leasable Area, located in the
Shopping Center substantially where depicted as single-hatched on Exhibit A,
together with the exterior covered sales area containing approximately two
thousand four hundred (2,400) square feet substantially where depicted as
cross-hatched on Exhibit A and all other appurtenances specifically granted to
Tenant in this Lease. For purposes of calculating Tenant's Proportionate Share
as set forth in Section 1.19 below, the Premises shall be deemed to contain
fifty-seven thousand five hundred twenty (57,520) square feet of Gross Leasable
Area, plus an amount equal to five percent (5%) of such Gross Leasable Area to
reimburse Landlord for all costs incurred in connection with the installation of
the Useable Open Space requirement of the City of Hillsboro, Oregon, maintenance
and repair of the Useable Open Space requirement imposed by the City of
Hillsboro, Oregon.
1.20. Proportionate Share. Unless otherwise specified in this Lease,
whenever Tenant is required to pay its Proportionate Share, such Proportionate
Share shall be equal to the ratio (expressed as a percentage) which the number
of square feet of Gross Leasable Area in the Premises (including the five
percent (5%) Useable Open Space requirement) as defined in Section 1.18 above
bears to the total number of square feet of Gross Leasable Area in the Shopping
Center. If the Shopping Center
PAGE 8
10
is expanded or contracted, then as of the date of completion of such expansion
or contraction, Tenant's Proportionate Share shall be adjusted, pursuant to the
foregoing formula, to reflect any increased or decreased amount of Gross
Leasable Area contained in the Shopping Center. Within fifteen (15) days of the
Term Commencement Date, Landlord shall deliver to Tenant a letter establishing
the Tenant's Proportionate Share. In no event shall Tenant's Proportionate Share
of the Common Area Maintenance Costs be greater than forty two percent (42%).
1.21. Protective Covenants: That certain Protective Covenants Agreement
effecting the Shopping Center and certain adjacent property made and entered
into as of _______, 1998 by Landlord, as amended from time to time.
1.22. Release. As used in Section 25 ("Hazardous Materials"), disposal or
placement or existence of any Hazardous Materials in, on, about, or under the
Premises or Shopping Center in violation of any Environmental Laws.
1.23. Rent. Fixed Minimum Rent, Common Area Maintenance Costs, Taxes, and
all other sums and amounts payable by Tenant hereunder as additional rent.
1.24. Shopping Center. The real property described in Exhibit B, together
with all improvements from time to time or at any time located thereon.
1.25. Substantial Completion: The date that an architect employed by the
party performing any work hereunder certifies to that party in writing that all
work to be performed by such party pursuant to this Agreement is substantially
complete, except for punch list items and construction items to be completed as
part of the Initial Shopping Center and/or part of the Initial Premises that
would not prevent the other party from performing its work in the Premises or,
in the case of Tenant, opening for business in the Premises and except for any
of such parties work which cannot be feasibly performed prior to completion by
the other party of its work.
1.26. Taxes. The following: (i) all real estate taxes and assessments and
all other taxes relating to or levied, assessed, or imposed on the Shopping
Center or any portion thereof or interest therein (including, but not limited to
the Useable Open Space allocated to the Shopping Center, whether located within
the Shopping Center or on real property subject to the Protective Covenants) but
excluding that portion of the Shopping Center shown as shaded on Exhibit A,
attached hereto; (ii) all other taxes, assessments, charges, levies, fees, or
penalties, general or special, ordinary or extraordinary, unforeseen as well as
foreseen, of any kind and nature imposed, levied, assessed, charged, conformed,
or collected by any governmental authority or other entity either directly or
indirectly (A) for public improvements, user, maintenance, or development fees,
services, or benefits, (B) upon or with respect to the development, possession,
leasing, operation, management, maintenance, alteration, repair, use, or
PAGE 9
11
occupancy of, or business operations in, the Shopping Center, (C) upon, against,
or measured by the area of the Shopping Center or uses made thereof or leases
made to tenants thereof, and (D) for environmental matters or as a result of the
imposition of mitigation measures, including parking taxes, employer parking
regulations, or fees, charges, or assessments as a result of the treatment of
the Shopping Center, or any portion thereof or interest therein, as a source of
pollution or storm water runoff, (iii) any tax or excise, however described,
imposed in addition to, or in substitution partially or totally of, any or all
of the foregoing taxes, assessments, charges, or fees; and (iv) any and all
costs, expenses, and attorneys' fees paid or incurred by Landlord in connection
with any proceeding or action to contest in whole or in part, formally or
informally, the imposition, collection, or validity of any of the foregoing
taxes, assessments, charges, or fees. If by law any Tax may be paid in
installments at the option of the taxpayer, then Landlord shall include within
Taxes hereunder only those installments (including interest, if any) which would
become due by exercise of such option. Taxes shall not include any taxes,
assessment fees, or charges for which Tenant is directly responsible under
Section 7.2 or taxes payable by Landlord measured by Landlord's net income, or
as franchise or inheritance taxes.
1.27. Term. The period commencing on the Term Commencement Date and ending
(unless sooner terminated as provided in this Lease) on the Term Expiration Date
(the "Original Term"), including any "Extended Term," as defined in Section 3.6.
1.28. Term Commencement Date. The earlier of (i) the date forty-five (45)
calendar days after Landlord "substantially completes" "Landlord's Work"
pursuant to Exhibit C (or would have "substantially completed" Landlord's Work
had Landlord not been prevented from so doing due to delays caused by Tenant),
or (ii) the date on which Tenant first opens for business in the Premises.
1.29. Term Expiration Date. The last day of the Two Hundred Fortieth
(240th) Month after the Term Commencement Date, unless Tenant has timely
exercised an option to extend this Lease, in which event, the last day of the
Extended Term then in effect.
1.30. Useable Open Space. The City of Hillsboro, Oregon requires that five
percent (5%) of the total land area of the Shopping Center be designated and
established as "Useable Open Space" and that such Useable Open Space be
landscaped, developed and maintained in accordance with the administrative
requirements of the City of Hillsboro and the Protective Covenants. Landlord has
set aside and will develop certain real property as Useable Open Space in
conjunction with the development of the Shopping Center and other adjacent
property which may
PAGE 10
12
be located, in whole or in part, within the Shopping Center or on real property
adjacent to the Shopping Center, as Landlord reasonably determines.
2. LEASE OF PREMISES.
2.1. Lease and Hiring. Landlord leases to Tenant, and Tenant rents from
Landlord, the Premises for the Term, at the Rent, and upon the terms, covenants,
and conditions contained herein.
3. TERM.
3.1. Duration. This Lease, and the terms, covenants, and conditions
contained herein, shall be effective as of the date hereof.
3.2. Certificate. Within fifteen (15) days following the Term Commencement
Date, Tenant shall execute and deliver to Landlord a certificate in the form
attached hereto as Exhibit D and incorporated herein by reference setting forth
the Term Commencement Date and the Term Expiration Date. Tenant's failure to
deliver the certificate hereunder shall not affect the Term Commencement Date
nor the Term Expiration Date but, at Landlord's option, shall constitute an
Event of Default by Tenant hereunder.
3.3. Termination for Delay. Notwithstanding anything to the contrary
contained herein and subject to force majeure delay, in the event Landlord is
unable to substantially complete the construction of the Premises by September
15, 1998, Tenant may elect by written notice to Landlord to cause Tenant's
obligation to pay Fixed Minimum Monthly Rent as set forth herein to be abated
until the earlier of (a) the date Tenant accepts possession of the Premises or
(b) February 1, 1999 (the "Abatement Period"). During the Abatement Period,
Tenant shall pay Landlord monthly all Additional Rent required by this Lease
plus a sum equal to one twelfth (1/12) of the product obtained when nine percent
is multiplied by all construction costs then incurred by Landlord in performing
Landlord's Work as defined herein. Fixed Minimum Rent as calculated pursuant to
Exhibit F and hereunder shall, in any event, commence no later than February 1,
1999.
In the event Landlord is unable to complete construction of the Premises by
June 1, 1999, as its sole and exclusive remedy, Tenant shall have the right, by
written notice to Landlord to terminate this Lease.
Notwithstanding anything to the contrary contained herein, in the event
either (i) Tenant has not commenced "Tenant's Work" in the Premises pursuant to
Exhibit C within fifteen (15) days after substantial completion by Landlord of
Landlord's Work; or (ii) Tenant fails to prosecute diligently Tenant's Work to
substantial completion in
PAGE 11
13
accordance with Exhibit C, Landlord shall have the right, by written notice to
Tenant, to terminate this Lease.
Upon any Lease termination pursuant to this Section 3.3, neither party
shall have any further right, obligation or liability to the other party under
this Lease.
3.4. Holding Over. If Tenant should remain in possession of the Premises
after the expiration of the Term with the express written consent of Landlord
and without executing a new lease, then such holding over shall be deemed a
tenancy from month-to-month, subject to all conditions, provisions, and
obligations of this Lease, except that the Fixed Minimum Rent then in effect
shall be increased to an amount equal to one hundred ten percent (110%) of such
Fixed Minimum Rent.
3.5. Option to Extend this Lease. Provided there exists no Event of Default
on the date of Tenant's notice to Landlord, Tenant shall have the right to
extend this Lease for four (4) separate and additional consecutive periods of
five (5) years each ("Extended Term") by giving Landlord written notice of its
intention to so extend at least one hundred eighty (180) days before the end of
the Original Term or any Extended Term then in effect.
4. RENT.
4.1. Fixed Minimum Monthly Rent for the Original Term. Tenant shall pay to
Landlord "Fixed Minimum Monthly Rent" for the first sixty (60) months of the
Original Term, which shall be determined as set forth in Exhibit F, attached
hereto and incorporated herein by reference.
4.2. Adjustment in Fixed Minimum Monthly Rent During Original Term. The
Fixed Minimum Monthly Rent set forth in Section 4.1 shall be increased on the
first (1st) day of the fifth (5th) Lease Year, and thereafter on the first (1st)
day of the tenth (10th) and fifteenth (15th) Lease Year by an amount equal to
the product obtained when the Fixed Minimum Monthly Rent on the date of last
adjustment (the "Adjustment Date") is multiplied by ten percent (10%). For the
purpose of adjusting Fixed Minimum Monthly Rent on the first (1st) Adjustment
Date, the Fixed Minimum Monthly Rent as of the Term Commencement Date shall be
multiplied by ten percent (10%). On each Adjustment Date, the Fixed Minimum
Monthly Rent then in effect shall be increased, but not decreased, by
multiplying such Fixed Minimum Monthly Rent by ten percent (10%). Upon
Landlord's determination thereof, Landlord shall give written notice of the
amount of the Fixed Minimum Monthly Rent as so adjusted and the basis of
computation thereof.
4.3. Fixed Minimum Monthly Rent During Extended Term(s), If Any. In the
event Tenant has duly exercised its option to extend the Term hereof for a first
PAGE 12
14
Extended Term, the Fixed Minimum Monthly Rent for each month of such first
Extended Term shall be equal to the product obtained when the Fixed Minimum
Monthly Rent for the last month of the Original Term is multiplied by One
Hundred Ten percent (110%). If Tenant has duly exercised its option to extend
the Term hereof for the second Extended Term, the Fixed Minimum Monthly Rent for
the second Extended Term shall remain the same as the Fixed Minimum Monthly Rent
during the first Extended Term. If Tenant has duly exercised its option to
extend the Term hereof for the third Extended Term, the Fixed Minimum Rent for
each month of such third Extended Term shall be equal to the product obtained
when the Fixed Minimum Monthly Rent for the last month of the second Extended
Term is multiplied by One Hundred Ten percent (110%). If Tenant has exercised
its option to extend the Term hereof for the fourth Extended Term, the Fixed
Minimum Monthly Rent for the fourth Extended Term shall remain the same as the
Fixed Minimum Monthly Rent during the third Extended Term.
4.4. Payment and Proration of Fixed Minimum Monthly Rent. Fixed Minimum
Monthly Rent shall be paid without notice, deduction, or offset in advance on or
before the first day of each Month during the Term, unless the Term commences on
a day other than the first day of a Month, in which event Tenant shall pay to
Landlord on the first day of the Term, as Fixed Minimum Monthly Rent for such
first partial calendar month of the Term, a pro rata portion of the Fixed
Minimum Monthly Rent for the first month of the Original Term set forth in
Exhibit F equal to the product of (i) the quotient obtained when the Fixed
Minimum Monthly Rent for the first month of the Original Term set forth in
Exhibit F multiplied by twelve (12) is divided by three hundred sixty-five
(365), times (ii) the number of days of such first partial calendar month of the
Term.
4.5. Reports of Gross Sales. On or before the sixtieth (60th) day following
each Lease Year, Tenant shall furnish to Landlord a true and accurate statement
of all Gross Sales for such Lease Year, showing in detail all items, deductions,
exclusions, and additions included in the calculation of such Gross Sales. Such
statement shall otherwise be in such form as Landlord may from time to time
reasonably prescribe and shall be certified as correct by an authorized
representative of Tenant.
4.6. Additional Rent. For all purposes under this Lease, all sums and other
amounts payable by Tenant to Landlord or otherwise hereunder which are not
specifically denominated as "rent" shall be payable as and shall be deemed to be
additional rent. Such sums and amounts shall be payable as and when provided
under this Lease, unless no date is specified, in which case such sums shall be
payable together with each installment of Fixed Minimum Rent payable hereunder.
PAGE 13
15
4.7. Late Charge; Rent Notices; Address for Payment of Rent. Tenant hereby
acknowledges that late payment by Tenant to Landlord of Rent and other sums due
under this Lease will cause Landlord to incur additional costs not contemplated
by this Lease, the exact amount of which will be extremely difficult or
impossible to ascertain. Such additional costs include processing and accounting
charges and late charges which may be imposed upon Landlord by the terms of any
mortgage or deed of trust covering the Premises. Therefore, if any installment
of Rent or any other sum due from Tenant shall not be received by Landlord
within ten (10) days after the date that such amount is due, Tenant shall pay to
Landlord a late charge equal to five percent (5%) of the overdue amount. The
parties hereby acknowledge, warrant, and represent that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge by Landlord
shall in no event constitute a waiver of an Event of Default with respect to
such overdue amount or prevent Landlord from exercising any or all of the other
rights and remedies granted under this Lease. Landlord may, as a matter of
convenience, provide to Tenant from time to time xxxxxxxx or invoices for Rent
or other sums due under this Lease, but Tenant's failure to receive any such
billing or invoice, or Landlord's omission or cessation of any such billing or
invoice shall not excuse Tenant's obligation for the timely payment of Rent and
other sums due in accordance with this Lease. Tenant shall pay the Rent by check
or draft payable to:
PacTrust
Attn: Accounting; Facility No. COS/02
00000 X.X. Xxxxxxx Xxxx., #000
Xxxxxxxx, XX 00000
or as otherwise may be designated in writing by Landlord.
5. PERMISSIBLE USE; TENANT'S CONDUCT OF BUSINESS.
5.1. Use Restrictions.
5.1.1. Use; Trade Name. Tenant shall use the Premises solely for the
following purpose: the retail sale of sporting goods, including boats and
boating supplies, outdoor and activewear, footwear, after market automobile
parts, supplies and accessories and merchandise incidental to the foregoing
together with no more than twenty-five hundred (2,500) square feet of Gross
Leasable Area for sales and display of food for off-Premises consumption and for
such other retail uses as may be reasonably approved by Landlord in writing.
Tenant shall conduct its business in the Premises solely under the trade name of
GI Joe's. Tenant shall not use or permit the Premises to be used for any other
purpose or under any other trade name whatsoever.
5.1.2. Prohibited Uses. Tenant covenants and agrees that it shall not
PAGE 14
16
include or permit in the use of the Premises for any use which violates the ECR,
the Protective Covenants, any exclusive right of any other tenant of the
Shopping Center of which Landlord has provided written notice to Tenant and
which exclusive does not violate Tenant's use as set forth in Section 5.1.1
above, and/or any of the following uses, whether incidental to the use of the
Premises or otherwise: (i) the sale of food and/or beverages for on or
off-premises consumption (including consumption at outdoor seating) except as
permitted in Section 5.1.1 above; (ii) the sale of merchandise which, under the
laws of the State of Oregon, is required to be dispensed by or under the
supervision of a registered or licensed pharmacist; (iii) except as set forth
below, the sale of alcoholic beverages for on- or off-premises consumption; (iv)
the sale of lottery tickets or drug paraphernalia; (v) check cashing services;
(vi) self-service laundry or car wash; (vii) a beauty salon, xxxxxx shop, or wig
shop; (viii) an office, other than an administrative office necessary to the
operation of Tenant's retail business; (ix) veterinarian's services; (x) tax
preparation services; (xi) a church or other place of worship; (xii) a training
or educational facility; (xiii) an entertainment or recreational facility; (iv)
any coin or token-operated vending machines or similar device for the sale or
leasing to the public of any goods, wares, merchandise, food, beverages, and/or
service, including pay telephones, pay lockers, pay toilets, scales, video
games, or other amusement devices; or (xv) a thrift shop, flea market, or store
selling used products. As used in this Lease, a "training or educational
facility" includes, without limitation, a beauty school, xxxxxx college, place
of instruction, or any other operation catering to students or trainees rather
than to customers, and an "entertainment or recreational facility" includes,
without limitation, an amusement center; electronic or mechanical games arcade;
pool or billiard hall; betting parlor or bingo parlor; health or aerobic spa or
studio; gymnasium; massage parlor; pornographic shop; adult book store; or any
other place of public or private amusement. Notwithstanding the foregoing,
Tenant may utilize no more than five hundred (500) square feet of the Gross
Leasable Area of the Premises for sale of packaged alcoholic beverages for
off-Premises consumption and, subject to having obtained all governmental
permits for and Landlord's reasonable consent as to location, size, design and
method of attachment, may install two (2) telephone units each on the exterior
wall and on the interior walls of the Premises and may install two (2) vending
machines on the sidewalk immediately in front of the Premises. In no event shall
any such telephones or vending machines interfere with the safe ingress, egress
and passage of pedestrian in the Shopping Center.
5.2. Continuous And Full Operation. Tenant shall open for business in the
Premises within sixty (60) days after Landlord "substantially completes"
"Landlord's Work" pursuant to Exhibit C (or would have "substantially completed"
Landlord's Work had Landlord not been prevented from so doing due to delays
caused by Tenant) and shall remain open for business continuously and
uninterruptedly during
PAGE 15
17
the first three (3) years of the Term thereafter, during at least the following
minimum business hours:
Monday to Saturday 10 a.m. to 7 p.m.
Sunday 12 p.m. to 6 p.m.
In no event however shall such hours be fewer than the hours of the majority of
other businesses in the Shopping Center, or fewer than the hours of comparable
businesses in the Portland, Oregon, Metropolitan Area. Tenant shall occupy and
use the entire Premises for the purpose or purposes specified herein and shall
continuously fully merchandise the Premises (except during times when the
Premises may be untenable by reason of fire or other casualty), subject only to
the provisions of this Section 5. Tenant shall continue to operate its business
to the extent reasonably practicable during any period of reconstruction or
repair. Tenant shall not vacate or abandon the Premises at any time during the
Term.
5.2.1. Landlord's Right to Terminate Lease. In addition to any other
remedy of Landlord set forth herein, if Tenant fails to operate its business in
the Premises at any time during the Term for a period of more than six (6)
consecutive months for reasons other than force majeure matters as set forth in
Section 26.5 hereof, then Landlord may, by delivering ninety (90) days prior
written notice, elect to terminate the Lease, which termination shall be
effective on the ninety-first (91st) day following receipt of such notice by
Tenant; provided, however, that Tenant may nullify Landlord's right of
termination by reopening its store for business within the ninety (90) day
period. If Landlord terminates the Lease as set forth herein, neither party
shall have any further right or obligation hereunder.
5.3. Insurance Requirements; Compliance With Laws. Tenant shall not do or
permit anything to be done in or about the Premises, or bring or keep anything
therein, which will increase the rate of any insurance on the Shopping Center,
or any portion thereof or interest therein. Tenant shall, at its sole cost and
expense, comply with any and all orders and requirements imposed by any
insurance company providing casualty (including fire and extended coverage) or
public liability insurance to Tenant or Landlord and covering the Shopping
Center, or any portion thereof or interest therein. Tenant shall promptly comply
with any and all laws, ordinances, rules, regulations, and orders applicable to
the Premises. Tenant's obligations hereunder shall include the making of
alterations, additions, and improvements and the installation of additional
facilities required for the conduct or continuance of Tenant's business on the
Premises, including (without limitation) any alterations, additions, or
improvements to the Premises or the installation of additional facilities at the
Premises required by the Americans with Disabilities Act. Tenant shall not use,
or permit the use of, any portion of the Premises for any unlawful or immoral
purpose.
PAGE 16
18
Tenant may contest or review, by procedures permitted by applicable law or
insurance policies, at its own expense, any such order, requirement, law,
ordinance, rule, or regulation, and may delay compliance therewith if permitted
by such law or policy, provided that Landlord or any other tenant, occupant, or
owner of the Shopping Center is not subject to civil liability or criminal
prosecution as a result thereof and Landlord's title to or interest in, or such
tenant's, occupant's or owner's business in or title to, the Shopping Center, or
any portion thereof, is not subjected to forfeiture, involuntary sale, loss, or
closure as a result thereof. Tenant shall indemnify, defend, protect, and hold
Landlord and such other tenants, occupants, and owners harmless from and against
any and all liability, loss, cost, damage, or expense (including attorneys'
fees) resulting from or in connection with any contest hereunder. Any contest
shall be conducted with all due diligence. Tenant shall diligently comply with
any final, non-appealable decision in any such contest.
5.4. Use Limitations and Requirements. Tenant shall not conduct or allow
any auction, fire, going out of business, or bankruptcy sales in or from the
Premises. Tenant shall not perform any acts or conduct any practices which may
injure the Shopping Center, or any portion thereof, or which may injure the
reputation of the Shopping Center, or constitute a nuisance, annoyance, or
menace to other tenants of the Shopping Center, or disturb their quiet
enjoyment. Tenant shall keep the Premises, front and rear walkways adjacent to
the Premises, and any service delivery facilities allocated for the use of
Tenant (whether or not exclusive) clean and free from rubbish and dirt at all
times, shall store all trash and garbage within the Premises, and shall arrange
for the regular pickup of such trash and garbage at Tenant's expense, unless
garbage pick-up is included in Common Area Maintenance Costs pursuant to Section
12.2. Tenant shall not burn any trash or garbage of any kind in or about the
Premises or Shopping Center. All plumbing facilities within or serving the
Premises shall be used only for the purposes for which they are installed, and
no foreign substance of any kind shall be thrown therein; any and all costs and
expenses resulting from misuse of such plumbing facilities in violation of the
foregoing by Tenant or any other person shall be borne by Tenant. Neither Tenant
nor its employees, agents, or contractors shall xxxx or deface any walls,
ceilings, partitions, floors, wood, stone, or iron within or about the Premises.
Tenant: (i) shall warehouse, store, and/or stock in the Premises only such
goods, wares, and merchandise as Tenant intends to offer for retail sale in, on,
at, or from the Premises within a reasonable time after receipt thereat; (ii)
shall use for office, clerical, or other non-selling purposes only such space as
is from time to time reasonably required for Tenant's business therein; and
(iii) shall not perform therein any such functions for any other store or
business of Tenant, or any affiliate of Tenant.
5.5. ECR and Protective Covenants. Tenant acknowledges receipt of a copy of
the ECR and the Protective Covenants. During the Term, Tenant, and its permitted
PAGE 17
19
sublessees, concessionaires and licensees, shall not violate any of the
provisions of the ECR or the Protective Covenants. Tenant shall indemnify,
protect and hold Landlord harmless from and against any and all losses, costs,
actions, claims, expenses (including reasonable attorney's fees) and liabilities
arising out of or related to any act or omission by Tenant or its permitted
sublessees, concessionaires, licensees or invitees (whether or not said act or
omission is consented to by Tenant) which constitutes a violation of the ECR or
the Protective Covenants or puts Landlord in violation of the ECR or the
Protective Covenants. If requested by Landlord, Tenant shall, at its sole cost
and with counsel chosen by Landlord, undertake the defense of any action against
Landlord as a consequence of such violation.
5.6. Outside Merchandising. Notwithstanding anything to the contrary
contained herein, Tenant may conduct seasonal or promotional sales of
merchandise from a portion of the Common Area in front of the Premises at the
location described in the ECR (the "Seasonal Sales Area") subject to the
following restrictions: (i) any sale from the Seasonal Sale Area shall be
limited to not more than fourteen (14) days per calendar year during the month
of July of any year; (ii) all sales activities shall be limited to the greater
of no more than twenty-two (22) parking spaces or an area not to exceed a total
of 7,200 square feet within the Seasonal Sales Area; (iii) all booths, stands,
displays or other structures erected in connection therewith shall be promptly
removed by Tenant upon the termination of such sales activity; and (iv) the use
of the Seasonal Sales Area shall not unreasonably interfere with the free
movement of vehicular or pedestrian traffic within the Shopping Center or with
access to or from the Shopping Center.
5.7. Enforcement of Rules and Regulations. Landlord shall use its such
efforts to enforce the rules and regulations attached hereto as Exhibit E as
Landlord deems reasonable in its sole discretion. In the event Tenant provides
Landlord with written notice specifying a breach of such rules and regulations
by another tenant of the Shopping Center and Landlord fails or refuses to
enforce such rules and regulations, Landlord shall be deemed to have assigned to
Tenant the right to enforce such rules and regulations against such other
breaching tenant and Tenant shall indemnify and hold Landlord harmless from and
against any and all damage, claim, loss or expense incurred by Landlord as the
result of such enforcement by Tenant.
6. INSURANCE.
6.1. Tenant's Insurance. At its sole cost and expense, Tenant shall
maintain in full force and effect as of the date of this Lease and continuing
throughout the Term, the following policies of insurance:
PAGE 18
20
6.1.1. Liability Insurance. Comprehensive General Liability Insurance
or Commercial General Liability Insurance, insuring against liability for bodily
injury or death to persons, property damage and personal injury, covering the
Premises and the business of Tenant, with a combined single limit of liability
not less than Two Million Dollars ($2,000,000.00) per occurrence per location,
such coverage to be in a commercial general liability form with at least the
following endorsements: (i) deleting any employee exclusion on personal injury
coverage; (ii) including coverage for injuries to or caused by employees; (iii)
providing for blanket contractual liability coverage (including Tenant's
indemnity obligations contained in this Lease), broad form property damage
coverage and products completed operations, owner's protective and personal
injury coverage; (iv) providing for coverage of employers automobile
non-ownership liability; and (v) if required by Landlord, providing liquor
liability coverage. All such insurance: (i) shall be primary and
non-contributory; (ii) shall provide for severability of interests; (iii) shall
provide that an act or omission of one of the named insureds shall not reduce or
avoid coverage to the other named insureds; and (iv) shall afford coverage for
all claims based on acts, omissions, injury or damage which occurred or arose
(or the onset of which occurred or arose) in whole or in part during the policy
period. If, in the opinion of Landlord's insurance advisor, the amount or scope
of such coverage is deemed inadequate at any time during the Term, Tenant shall
increase such coverage to such reasonable amounts or scope as Landlord's advisor
deems adequate.
6.1.2. Plate Glass Insurance. Tenant shall be required to carry plate
glass insurance at such time as plate glass insurance becomes available in the
State of Oregon at commercially reasonable rates.
6.1.3. Tenant's Insurance on Fixtures. Fire insurance, with standard
extended coverage, sprinkler leakage, vandalism, and malicious mischief
endorsements on all of Tenant's fixtures and equipment in the Premises, in an
amount not less than one hundred percent (100%) of their full insurable value,
the proceeds of which shall, so long as this Lease is in effect, be used for the
repair or replacement of the fixtures and equipment so insured.
6.1.4. Tenant's Worker's Compensation Insurance. Worker's Compensation
Insurance in the manner and to the extent required by applicable law and with
limits of liability not less than the minimum required under applicable law,
covering all employees of Tenant having any duties or responsibilities in or
about the Premises.
6.2. Landlord's Insurance. Landlord shall, as of the date of this Lease and
continuing throughout the Term, maintain in full force and effect a policy or
policies of fire insurance covering the buildings within the Shopping Center,
including the
PAGE 19
21
Building with standard extended coverage, vandalism, malicious mischief, and
sprinkler leakage endorsements, and such other insurance in such amounts and
covering such other liability or hazards as deemed appropriate by Landlord. The
amount and scope of coverage of Landlord's insurance hereunder shall be
determined by Landlord from time to time in its sole discretion and shall be
subject to such deductible amounts as Landlord may elect. Landlord shall have
the right to reduce or terminate any insurance or coverage called for by this
Section 6.2. to the extent that any such coverage is not reasonably available in
the commercial insurance industry from recognized carriers. Tenant shall
reimburse Landlord, as additional rent, the full amount of the costs of all
insurance maintained by Landlord hereunder, or otherwise on all or any portion
of the Building. The amount of such costs which Tenant is required to reimburse
shall be prorated on the basis of a 365-day year to account for any fractional
portion of the period for which said costs are paid which is included in the
Term at its commencement or expiration (or sooner termination). Tenant shall so
pay Landlord within thirty (30) days after receipt of notice from Landlord of
the amount due. The cost of all insurance maintained by Landlord hereunder, or
otherwise on all or any portion of the Shopping Center other than the Building,
shall be included in Common Area Maintenance Costs. All insurance proceeds
payable under Landlord's casualty insurance carried hereunder shall be payable
solely to Landlord, and Tenant shall have no interest therein.
6.3. Policy Requirements. All insurance policies required to be carried
under this Lease shall be issued by financially sound qualified insurers,
approved to do business in the State of Oregon. All Tenant's insurance (other
than Worker's Compensation) shall name Landlord, Landlord's managing agent, and
such other persons or entities as Landlord may from time to time designate, as
additional insureds and shall not contain deductibles in excess of Five Thousand
Dollars ($5,000.00). Tenant's Worker's Compensation Insurance shall contain an
employer's contingent liability endorsement. Prior to the Term Commencement Date
and thereafter not less frequently than annually, Tenant shall deliver to
Landlord certificates of all insurance required to be carried by Tenant
hereunder, showing that such policies are in full force and effect in accordance
with this Section 6. Tenant shall obtain written undertakings from each insurer
under policies maintained by Tenant hereunder to notify Landlord, and any other
additional insured thereunder, at least thirty (30) days prior to cancellation,
amendment or reduction in coverage under any such policy.
6.4. Blanket Coverage. Any policy required to be maintained hereunder by
either party may be maintained under a so-called "blanket policy", insuring
other parties and other locations, so long as the amount of insurance required
to be provided hereunder is not thereby diminished.
PAGE 20
22
6.5. Waiver of Subrogation. To the extent permitted by law and without
affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
on account of any and all claims Landlord or Tenant may have against the other
with respect to any risk insured against by insurance actually carried, or
required to be carried hereunder, to the extent of the proceeds realized from
such insurance coverage. Each casualty insurance policy carried by Landlord or
Tenant hereunder, or which either may obtain with respect to the Premises or the
Shopping Center independent of obligations hereunder, shall provide that the
insurer waives all rights of recovery by way of subrogation against Landlord or
Tenant in connection with all matters included within the scope of the waiver of
recovery contained in this Section 6.5.
7. TAXES.
7.1. Tenant's Payment of Taxes. Commencing on the Term Commencement Date
and thereafter throughout the Term, Tenant shall pay to Landlord, as part of
Common Area Maintenance Costs, Tenant's Proportionate Share of Taxes.
7.2. Tenant's Payment of Taxes Relating to the Premises. In addition to
payment by Tenant of its Proportionate Share of Taxes, Tenant shall pay any and
all taxes, assessments, levies, license fees, business taxes, impositions,
in-lieu taxes or fees, excises, or charges, of any kind or character, general or
special, ordinary or extraordinary, unforeseen as well as foreseen, which are:
(i) levied against, upon, measured by, or attributable to any and all leasehold
improvements to the Premises over and above the base Building shell, whether
installed or paid for by Landlord or Tenant, and upon any and all fixtures,
equipment, and personal property installed or located in the Premises, or levied
upon, measured by, or reasonably attributable to the cost or value of any of the
foregoing; (ii) levied upon or measured by the Fixed Minimum Rent, Percentage
Rent, or any other amounts payable by Tenant hereunder, including any gross
income taxes, excise tax, or value-added tax levied by any governmental
authority or other entity with respect to the receipt or making of such
payments; (iii) levied upon or with respect to the development, possession,
leasing, operation, management, maintenance, alteration, repair, use, or
occupancy by Tenant of, or business operations of Tenant in, the Premises or any
portion thereof; (iv) levied upon or with respect to the transaction under this
Lease, any document to which Tenant is a party creating or transferring any
interest or an estate in the Premises, or any leases, subleases, licenses, or
concessions made to Tenant, any subtenant, or other occupant of the Premises; or
(v) enacted by way of substitution for or in addition to all or any part of the
foregoing. Tenant shall make payment of all amounts hereunder before delinquency
directly to the levying authority and shall provide Landlord receipts evidencing
such payments. If any of the foregoing taxes, assessments, fees, or charges are
included in tax bills to Landlord for Taxes, then Tenant shall pay to
PAGE 21
23
Landlord the amount attributable to the taxes, fees, assessments, or charges so
included immediately upon demand by Landlord and prior to the payment date
required with respect to such tax xxxx.
8. CONSTRUCTION.
8.1. Initial Shopping Center Construction; Landlord's and Tenant's Work.
The design, construction, and development of the Shopping Center and/or the
design and construction of the Building, and the design and construction of the
Premises and "Landlord's Work" and "Tenant's Work" therein, shall be undertaken
in accordance with this Section 8 and the provisions of Exhibit C.
8.2. Landlord's Work. Landlord shall, prior to the commencement of the
Term, at Landlord's sole cost and expense, construct the Building and all Common
Area improvements in the Core Area in accordance with such design and
construction criteria and methods as Landlord and Tenant shall mutually
determine as necessary or appropriate. The Premises shall be constructed in
substantial accordance with the outline specifications set forth under
"Landlord's Work" on Exhibit C and with Landlord's Plans (as defined below).
8.3. Governmental Approval. Promptly after the date this Lease is executed
by Landlord and Tenant, or such other date as Landlord and Tenant shall mutually
agree, Landlord shall, at Landlord's sole cost and expense, commence preparation
of Landlord's Plans (as defined below) necessary to apply for all permits and
approvals required by appropriate governmental authorities to permit the
construction of Landlord's Work ("Governmental Approvals"), and once Landlord's
Plans have been prepared, to apply for all necessary Governmental Approvals. If
Landlord, despite Landlord's use of commercially reasonable efforts, is unable
to obtain all necessary Governmental Approvals within two hundred seventy (270)
days after Landlord and Tenant have approved Landlord's Plans pursuant to
Section 8.3, subject to extension for delays due to events or causes over which
Landlord has no control (including, without limitation, governmental delays),
either party may terminate this Lease upon ten (10) days written notice to the
other party, which notice shall be given no later than thirty (30) days after
the end of such two hundred seventy (270) day period. In the event both parties
fail to provide the written notice required hereunder, the parties shall be
deemed to have waived their right to terminate this Lease in accordance with
this Section 8.2 and the Lease shall continue in full force and effect.
8.4. Landlord's Plans.
8.4.1. The Building and all Common Area improvements in the Core Area
will be constructed in accordance with plans and specifications (the "Landlord's
Plans") which have been prepared by an architect selected and employed by
Landlord
PAGE 22
24
("Architect") and have been approved by Tenant. Tenant's architect has provided
Landlord with prototype plans and specifications which have been used for the
design of the interior of the Building and the Seasonal Sales Area.
8.4.2. The architects have prepared Landlord's Plans based upon the
description of Landlord's Work as set forth in part A of Exhibit C and Tenant's
Work in part B of Exhibit C. The completed plans have been submitted to and
approved by Landlord and Tenant. The parties agree that such completed plans
shall be subject to such minor revisions.
8.4.3. If Landlord has not approved Tenant's Plans within fifteen (15)
days after they have been submitted to Landlord for approval, Landlord and
Tenant shall meet and confer in good faith for a period of thirty (30) days in
the attempt to resolve any dispute concerning Tenant's Plans. If the parties are
unable to reasonably resolve any such dispute within such thirty (30) day
period, Tenant or Landlord may terminate this Lease upon ten (10) days written
notice to the other party which notice shall be given no later than thirty (30)
days after the end of such forty-five (45) day period or such right of
termination shall be deemed waived and this Lease shall remain in full force and
effect.
8.5. Performance of Landlord's Work.
8.5.1. Promptly after the execution of this Lease by Landlord and
Tenant, Landlord and Tenant shall agree upon a construction schedule. Landlord
will commence performance of Landlord's Work in accordance with such schedule at
such time as Landlord deems appropriate taking into account weather and other
factors beyond Landlord's reasonable control. Landlord shall cause Landlord's
Work to be diligently prosecuted to completion and performed in a good and
workmanlike manner in accordance with all applicable legal requirements and good
construction practices. Not less than ninety (90) days prior to the date
Landlord anticipates delivering the Premises to Tenant in the condition required
under Section 1.25, Landlord shall notify Tenant of such anticipated delivery
date (the "Anticipated Delivery Date").
8.5.2. Landlord will give Tenant at least seven (7) days prior written
notice of the completion of Landlord's Work (the "Work Notice") and will deliver
vacant possession of the Building and the Premises to Tenant with Landlord's
Work substantially complete subject only to minor punch list items. The date
which is fifteen (15) days after Landlord delivers possession of the Building
and the Premises to Tenant as required herein is the Term Commencement Date.
Landlord shall use Landlord's reasonable efforts to deliver possession of the
Building and the Premises to Tenant on or before October 15, 1998. In no event
shall Landlord deliver possession of the Building to Tenant between the period
commencing on October 16, 1998 and
PAGE 23
25
ending on January 31, 1999 without Tenant's prior written consent, which consent
may be withheld by Tenant in Tenant's sole discretion.
8.5.3. Notwithstanding acceptance of possession of the Premises by
Tenant, Landlord must fully complete all of Landlord's Work. By accepting
possession of the Premises, Tenant does not waive any failure of Landlord to
fully complete all of Landlord's Work. Upon opening for business in the
Premises, Tenant shall be deemed to have accepted the Premises with Landlord's
Work completed.
8.6. Tenant's Plans and Construction. Tenant shall prepare, furnish to
Landlord, and obtain Landlord's prior written approval (which Landlord shall not
unreasonably withhold) of all necessary drawings and specifications for Tenant's
proposed improvements to the Premises and shall thereafter construct such
improvements pursuant to the provisions under "Tenant's Work" in Exhibit C.
Provided that Tenant has obtained the insurance required by Section 6 above and
Exhibit C, then Tenant shall, upon receipt of Landlord's Work Notice, have the
right to enter the Premises to construct and complete Tenant's Work and to
install all Tenant's fixtures, sign faces, equipment and merchandise at the
Premises. Tenant's entry into the Premises hereunder shall be at Tenant's own
risk and without interference with any remaining work which must be performed by
Landlord in the Premises or to the balance of the Shopping Center. Tenant shall
use all due diligence to construct and complete Tenant's Work and shall complete
Tenant's Work, the installation of all Tenant's fixtures, sign faces, equipment,
and merchandise and open for business in the Premises within sixty (60) days
after the date of Landlord's Work Notice hereunder. Tenant shall design and
construct Tenant's Work hereunder at Tenant's sole cost and expense. Any and all
fixtures and equipment which Tenant may install or otherwise employ on the
Premises shall be new and shall not have been previously utilized at other
locations.
8.7. Compliance With Codes and Regulations. Tenant and its agents,
employees, and contractors shall diligently prosecute Tenant's Work to
completion and shall perform Tenant's Work in a first-class manner using new
materials of good quality, and in compliance with all applicable codes, laws,
ordinances, rules, and regulations of all governmental and quasi-governmental
authorities with jurisdiction, including (without limitation) the Americans with
Disabilities Act.
8.8. Tenant's Acceptance. The opening by Tenant of its business in the
Premises shall constitute acknowledgment by Tenant that the Premises, the
Building, and the Common Area are then in the condition called for by this Lease
and that Landlord has performed all of Landlord's Work with respect thereto.
Failure of Landlord to complete any work of construction or improvement called
for hereunder within the time and in the condition provided for in this Lease
shall not give rise to
PAGE 24
26
any claim for damages by Tenant against Landlord or against Landlord's
contractors or architects, and Tenant hereby waives any such claims.
8.9. Warranties. Landlord shall obtain from all prime contractors a
one-year written warranty (beginning upon the Term Commencement Date) against
defects in materials or workmanship, except that Landlord will obtain a two-year
written warranty against defects and materials or workmanship of the roof.
Concurrently with Tenant's acceptance of the Premises, or as soon thereafter as
is reasonably possible, Landlord will deliver to Tenant all warranties relating
to those items which Tenant is obligated to maintain and repair under this
Lease. Landlord agrees to reasonably cooperate with Tenant in enforcing any such
warranty.
8.10. Site Plan Approval. The Site Plan showing the Shopping Center and the
Premises attached as Exhibit "A" and Landlord and Tenant confirm approval of
said Site Plan.
9. REPAIRS AND MAINTENANCE; ALTERATIONS.
9.1. By Tenant. Tenant, at Tenant's sole cost and expense, shall at all
times keep the Premises and all elements thereof, including the exterior
foundations, exterior walls, canopy, roof, downspouts, and gutters of the
Building, all glass, plate glass, show cases, storefront parts, and moldings,
doors, doorjambs, door closers, door hardware, fixtures, equipment, and
appurtenances thereof, floors, partitions, all electrical, lighting, heating,
plumbing, and sprinkler systems, fixtures and equipment, and any air
conditioning system serving the Premises in good order, condition, and repair,
including replacements, reasonable periodic painting as determined by Landlord,
and repair of leaks around ducts, pipes, vents, or other parts of the air
conditioning, heating, or plumbing systems which protrude through the roof or
floor. Landlord shall have no obligation for the performance of any maintenance,
repair or replacement of all or any portion of the Building or the Premises and
Tenant hereby releases Landlord from all such obligations. Tenant shall also be
responsible for the repair of any and all damage caused to the Building or any
other portion of the Shopping Center by any act, neglect, or omission of Tenant
or its employees, agents, invitees, licensees, contractors, or subtenants; the
repair of any such damage shall be made at Tenant's cost and expense. Tenant
shall maintain in force at Tenant's expense a service and preventative
maintenance contract with an authorized air-conditioning service company
covering all heating and air conditioning equipment serving the Premises, and
shall provide Landlord with a copy thereof prior to commencement of the Term.
9.2. Alterations by Tenant. Tenant shall make no alterations, improvements,
or additions in, upon, to, or about the structure, roof or exterior of the
Premises
PAGE 25
27
without Landlord's prior written consent. Unless otherwise specified by Landlord
pursuant to Section 22.1., all alterations, additions, or improvements, to the
Premises, including air conditioning and heating equipment, mechanical systems,
floor coverings, and fixtures, other than Tenant's trade fixtures, which may be
made or installed by either of the parties in, upon, or about the Premises shall
be the property of Landlord, and at the termination of this Lease shall remain
upon and be surrendered with the Premises.
9.3. Construction Requirements. Any and all alterations, additions, or
improvements made by Tenant under this Section 9 shall be designed by a
competent licensed architect or structural engineer and shall be made under the
supervision of such architect or engineer by financially sound, bondable
contractors of good reputation in accordance with plans and specifications
approved in writing by Landlord hereunder before commencement of any work.
Landlord may require in connection with its consent to any alterations,
additions, or improvements hereunder, that any contractor, or major
subcontractors, provide payment and completion bonds in such amounts and with
sureties acceptable to Landlord. All alterations, additions, and improvements
made by Tenant hereunder shall be performed in a good and workmanlike manner,
diligently prosecuted to completion, and using new materials. Tenant shall
notify Landlord at least twenty (20) days prior to commencement of any work,
alteration, addition, or improvement hereunder so that Landlord may post, file,
and/or record any notice of non-responsibility or other notice required under
applicable mechanic's lien laws. Upon completion of any work hereunder, Tenant
shall record in the Office of the Recorder of Deeds for Washington County,
Oregon a notice of completion or any other notice required or permitted by
applicable mechanic's lien law to commence the running of, or terminate, any
period for the filing of liens or claims, and shall deliver to Landlord as-built
drawings of such alteration, addition or improvement, any certificate of
occupancy or other equivalent evidence of completion of such work in accordance
with the requirements of applicable law and evidence that Landlord has been
named an additional beneficiary under any and all warranties provided by any
contractor of Tenant for any alteration, addition or improvement to the
Building, including Tenant's Work. Tenant shall perform or cause performance of
all work hereunder in accordance with such rules and regulations as Landlord may
from time to time prescribe with respect thereto, and in such manner so as not
to obstruct or interfere with access to the Premises of any other tenant or
owner of the Shopping Center, the business of any such tenant or owner conducted
therein, or any portion of the Common Area. Prior to commencing any work
hereunder, Tenant shall supply to Landlord evidence that its contractor or
contractors have procured such insurance as Landlord may prescribe in connection
with such work.
PAGE 26
28
9.4. Liens. Tenant shall pay, or cause to be paid, all sums, costs, and
expenses due for, or purporting to be due for, any work, labor, services,
materials, supplies, or equipment furnished, or claimed to be furnished, to or
for Tenant in, upon, or about the Premises, and shall keep the Premises and the
Shopping Center free of all mechanic's, materialmen's, or other liens arising
therefrom. Tenant may contest any such lien, if Tenant first procures and posts,
records, and/or files a bond or bonds issued by a financially sound, qualified
corporate surety, in conformance with the requirements of applicable law for the
release of such lien from the Premises and/or Shopping Center. Tenant shall pay
and fully discharge any contested claim of lien within five (5) days after entry
of final judgment adverse to Tenant in any action to enforce or foreclose the
same; notwithstanding any such contest, Landlord shall have the absolute right
at any time to pay any lien imposed hereunder if in Landlord's reasonable good
faith judgment such payment is necessary to avoid the forfeiture, involuntary
sale, or loss of any interest of Landlord or any other tenant or owner in the
Shopping Center, or any portion thereof. Tenant shall indemnify, defend,
protect, and hold Landlord harmless of and from any and all loss, cost,
liability, damage, injury, or expense (including attorneys' fees) arising out of
or in connection with claims or liens for work, labor, services, materials,
supplies, or equipment furnished or claimed to be furnished to or for Tenant in,
upon, or about the Premises or the Shopping Center.
10. UTILITIES.
10.1. Tenant To Pay for Utilities and Utility Connections. Tenant shall pay
for the cost of connecting all utilities to the Premises, including water,
sewage, gas, electricity and telephones. Tenant shall promptly pay, as the same
become due and payable, all bills, charges, fees, assessments, and exactions for
all water, gas, electricity, heat, refuse pickup, sewer service, telephone, and
any other utilities, materials, and services furnished to or used by Tenant in,
on, or about the Premises. If any utility, material, or service is not
separately charged or metered to the Premises, Tenant shall pay to Landlord,
within ten (10) days after written demand therefor, Tenant's pro rata share of
the total cost thereof as may be determined by Landlord; if any utility,
material, or service is included as part of the maintenance of the Common Area
and/or the Useable Open Space under Section 12, then the cost thereof shall be
included in Common Area Maintenance Costs and Tenant shall pay its share thereof
in accordance with Section 12.3.
10.2. Landlord to Provide Mains and Conduits; No Liability for Interruption
of Service. Landlord shall provide and maintain the necessary mains, conduits,
and cables to bring water, telephone, electricity and/or gas, and remove sewage
from, the exterior wall of the Building containing the Premises. In no event
shall Landlord be
PAGE 27
29
liable for any interruption or failure of any utility services for any cause,
whether or not within Landlord's control or due to Landlord's act or neglect.
11. ADVERTISING, SIGNS AND DISPLAYS.
11.1. Signs and Other Advertising Media. Within forty-five (45) days of the
date hereof, Landlord shall deliver to Tenant Landlord's Sign Criteria for
Tenant's signs and which sign criteria shall specify the areas, location, size
and type of signage permitted in the Shopping Center. Within thirty (30) days
after receipt by Tenant of Landlord's Sign Criteria, Tenant shall deliver to
Landlord Tenant's Sign Proposal which shall conform to Landlord's Sign Criteria
and which shall specify the areas, location, size and description of all signage
proposed by Tenant for its use in the Shopping Center. Within ten (10) days of
receipt of Tenant's Sign Proposal, Landlord shall either approve or disapprove
Tenant's Sign Proposal. In the event Landlord disapproves Tenant's Sign
Proposal, Landlord shall specify in reasonable detail the reasons for any such
disapproval and the parties shall thereafter reasonably negotiate Tenant's final
signage in good faith. Other than those signs described on Tenant's Sign
Proposal which Landlord has approved, Tenant shall not erect or install in,
upon, or about the Premises any exterior or interior signs or advertising media
or window or door lettering or placards, without Landlord's consent.
Notwithstanding the foregoing, Landlord hereby approves the use by Tenant on the
front and, if permitted by governmental authority, or the rear of the Premises
of Tenant's current standard logo identification, inclusive of G.I. Joe's name,
"Sports and Auto Identifier and Boat Identifier." All such signs and media shall
conform to Landlord's sign criteria provided to Tenant or otherwise prescribed
from time to time by Landlord and shall otherwise comply with all applicable
laws, ordinances, rules, and regulations. Tenant shall properly and promptly
maintain and repair its signs, and keep them in a neat and clean condition. Upon
expiration of this Lease, Tenant shall promptly remove all signs installed
hereunder, unless otherwise specified by Landlord pursuant to Section 22.1., and
shall "cap off" the electrical wiring thereto. Tenant shall not use any
advertising media or other media that is objectionable to Landlord, or which can
be heard outside the Premises, such as loudspeakers, phonographs, or radio
broadcasts.
11.2. Exterior Displays; Illumination of Window Displays. Tenant shall not
keep or display any merchandise on, or otherwise obstruct in any manner, the
sidewalks or areaways adjacent to the Premises without Landlord's consent made
in Landlord's sole discretion. Tenant shall maintain its display windows and
show cases of the Premises in a neat and clean condition, and shall also keep
them well lighted from dusk until such time as Landlord may determine from time
to time during each and every day of the Term. No exposed fluorescent tubes or
incandescent bulbs, except in factory built track lighting fixtures approved by
Landlord, shall be used for
PAGE 28
30
the illumination of display windows. If (i) a pylon sign is permitted in the
Shopping Center by governmental authority and (ii) Landlord elects to construct
such pylon sign and (iii) Landlord allows any occupant of the Shopping Center a
sign face thereon, then Landlord shall allow Tenant a space on such pylon sign
so long as Tenant first agrees to pay its prorata share (based on the area of
all sign panels on such pylon sign) of all costs of construction, monthly
maintenance and monthly utilities of such pylon sign plus the entire cost of
Tenant's sign panel and the installation and permitting thereof.
12. COMMON AREA AND USEABLE OPEN SPACE
12.1. Maintenance and Repair. Landlord shall, throughout the Term, maintain
in good order, condition and repair (ordinary wear and tear, damage due to
casualty and condemnation or taking excepted) all Common Area in the Shopping
Center and Useable Open Space, where ever it may be located. Landlord may at any
time delegate such maintenance, or any portion thereof, to any other third
party, affiliated or non-affiliated, upon such terms and conditions as Landlord
deems compensatory, necessary, or appropriate. Any use of the Common Area and
Useable Open Space shall be subject to such reasonable rules and regulations as
Landlord may from time to time or at any time promulgate.
12.2. Payment by Tenant of Proportionate Share of Common Area Maintenance
Costs. Commencing with the Term Commencement Date and thereafter throughout the
Term, Tenant shall pay to Landlord in the manner hereinafter provided, Tenant's
Proportionate Share of Common Area Maintenance Costs, except that Taxes shall be
paid by Tenant under Section 7.
12.2.1. Method of Payment. On the first day of each Month during each
Lease Year, Tenant shall pay in advance one-twelfth (1/12th) of the amount which
Landlord estimates as Tenant's Proportionate Share of Common Area Maintenance
Costs for such Lease Year. In the event the Term commences on a day other than
the first day of a Month, Tenant shall pay to Landlord on the first day of the
Term, as Tenant's estimated Proportionate Share of Common Area Maintenance Costs
for such first partial calendar month of the Term, a pro rata portion of
Tenant's estimated Proportionate Share of Common Area Maintenance Costs based on
a thirty (30) day month. Within sixty (60) days after the end of each Lease
Year, or as soon thereafter as practicable, Landlord shall furnish to Tenant a
statement of the actual amount of Tenant's Proportionate Share of Common Area
Maintenance Costs. If the amount paid by Tenant during such Lease Year is less
than Tenant's Proportionate Share of Common Area Maintenance Costs as shown by
Landlord's statement, then Tenant shall pay the difference within twenty (20)
days after the date of Landlord's statement; if the amount paid by Tenant during
such Lease Year is more than Tenant's
PAGE 29
31
Proportionate Share of Common Area Maintenance Costs as shown by such statement,
then Tenant shall receive a credit on future payments of Common Area Maintenance
Costs hereunder for the amount of such excess.
12.2.2. Adjustments During Lease Year. If at any time it appears to
Landlord that Common Area Maintenance Costs for any Lease Year may exceed
Landlord's estimate thereof, then Landlord shall have the right by notice to
Tenant to revise the estimated monthly amount payable by Tenant hereunder, and
subsequent payments of Tenant's estimated Proportionate Share of Common Area
Maintenance Costs hereunder shall be increased based upon such revised
statement.
12.2.3. Prorations. For the Lease Years in which the Term commences
and ends, Common Area Maintenance Costs shall be prorated based on the number of
days of the calendar year the Term is in effect.
12.3. Grant of Non-Exclusive Rights in Common Area; Rules and Regulations.
Subject to the terms and conditions of this Lease, and such reasonable rules and
regulations as Landlord may from time to time promulgate with respect thereto,
until termination of this Lease, Landlord hereby grants to Tenant, and its
invitees and licensees, the non-exclusive right to use the Common Area for
ingress and egress to and from the Premises. Tenant and its invitees and
licensees shall observe all rules and regulations which Landlord may from time
to time or at any time promulgate with respect to the use, operation, and
maintenance of the Common Area or any other portion of the Shopping Center. Any
such rules and regulations shall be binding upon Tenant and its licensees and
invitees upon Landlord's delivery of a copy thereof to Tenant. Tenant shall not
use the Common Area, or any other portion of the Shopping Center, for any
purpose, or allow therein any use, other than that specifically allowed
hereunder or under any reasonable rules and regulations promulgated by Landlord
hereunder. Tenant's use of the Common Area is granted hereunder as a revocable
license and, if Landlord revokes such license or if the amount of Common Area or
Tenant's use thereof hereunder is diminished, altered, damaged, or modified,
Landlord shall not be subject to any liability or claims of any kind or
character, nor shall Tenant be entitled to any compensation, damages, or rental
abatement on account thereof, nor shall any such diminution, alteration, change,
or modification be deemed a constructive or actual eviction of Tenant, and all
such rights and remedies are hereby waived by Tenant.
12.4. Receiving and Deliveries. All receiving of goods and materials at the
Premises, all delivery of goods and merchandise to the Premises, and all removal
of garbage and refuse from the Premises shall be made only by way of Tenant's
rear service door, if any, or the service delivery facilities designated by
Landlord for Tenant's use. Landlord hereby grants to Tenant and Tenant's
employees, invitees and
PAGE 30
32
licensees, the non-exclusive right, during the Term, to use, in common with
others entitled to the use thereof, the service delivery facilities most
immediately adjacent to the Premises, subject to the terms and conditions of
this Lease and any rules and regulations as Landlord may from time to time or at
any time promulgate hereunder.
12.5. Tenant Parking. Tenant and its officers, agents, contractors, and
employees shall park their motor vehicles only in that portion of the Parking
Area which Landlord may from time to time designate hereunder. Tenant shall not
at any time park, or permit the parking of, motor vehicles in truck passageways
or adjacent to any loading area or service delivery facility so as to interfere
in any way with the use thereof by others, nor shall Tenant at any time park, or
permit the parking of, motor vehicles of its suppliers or vendors in the Parking
Area. If required by Landlord, Tenant shall cause its employees to display
stickers on their vehicles indicating that they are entitled to park in those
portions of the Parking Area designated as employee parking by Landlord.
12.6. Changes to Shopping Center. So long as such changes do not materially
interfere with the conduct by Tenant of its business in the Premises, Landlord
shall have the right, at any time or from time to time, to designate or change,
alter, modify, or improve any portion of the Shopping Center as Common Area
and/or Parking Area; may change the shape, size, location, number, and extent of
the improvements shown on Exhibit A; and may eliminate or add any property or
improvements to the Shopping Center, including one or more parking decks or
parking structures.
12.7. Seasonal Sales Area. Notwithstanding anything to the contrary
contained in this Section 12, Landlord hereby grants Tenant, and its invitees
and licensees, the exclusive right to use the Seasonal Sales Area. At any time
Tenant occupies or utilizes the Seasonal Sales Area, Tenant shall maintain such
Seasonal Sales Area in good order, condition and repair.
13. ASSIGNMENT AND SUBLETTING.
13.1. Lease as Personal to Tenant. Tenant acknowledges that Landlord has
entered into this Lease based on Tenant's qualifications to operate Tenant's
business under its trade name as specified in Section 5.1.1 above pursuant to
the information given and representations made by Tenant to Landlord with
respect thereto. As such, this Lease is intended by the parties to create a
leasehold estate personal to Tenant to enable Tenant to so operate its business
in the Premises under such trade name. Tenant acknowledges that Landlord is the
owner of the Shopping Center and has bargained for and entered into this Lease
in order to derive the economic and other benefits of such ownership, and that
Tenant has no intention of profiting from an increase in the value of the
leasehold estate created hereunder so as to deprive
PAGE 31
33
Landlord of the benefits of its ownership of the Shopping Center. The parties
have agreed to the provisions of this Section 13 in order to effectuate the
foregoing understandings.
13.2. Landlord Consent Required; Notice. Tenant shall not assign this
Lease, or any rights, duties, or obligations hereunder, and Tenant shall not
sublet all or any portion of the Premises, without Landlord's prior written
consent to such assignment or sublease, which consent Landlord shall not
unreasonably withhold or delay, and then only upon and subject to the terms and
conditions hereinafter set forth. In considering any request for consent to a
proposed assignment or sublease, Landlord shall make its decision based on the
standards and criteria set forth in Section 13.5. Prior to effectuating any such
assignment or sublease, Tenant shall notify Landlord in writing of the name and
address of the proposed assignee or sublessee, and deliver to Landlord with such
notice a true and complete copy of the proposed assignment agreement or
sublease, financial statements from such proposed assignee or sublessee, such
other information or documents as may be necessary or appropriate to enable
Landlord to determine the qualifications of the proposed assignee or sublessee
and the compliance of such transaction with the requirements of this Section 13,
and a request that Landlord consent thereto ("Tenant's Notice"). Within thirty
(30) days after the receipt of Tenant's Notice, Landlord shall either: (i)
consent in writing to such proposed assignment or sublease, subject to the terms
and conditions hereinafter set forth; or (ii) notify Tenant in writing that
Landlord refuses such consent; or (iii) terminate this Lease with respect to the
portion of the Premises which Tenant desires to assign or sublease. Upon such
termination of this Lease with respect to the portion of the Premises which
Tenant desires to assign or sublease, the Fixed Minimum Rent then payable by
Tenant to Landlord hereunder and Tenant's Proportionate Share shall be reduced
in the proportion that the number of square feet of Gross Leasable Area in such
portion of the Premises bears to the total number of square feet of Gross
Leasable Area of the Premises then leased by Tenant under this Lease.
13.3. Payment of Consideration to Landlord. If Landlord consents to any
assignment of this Lease or to a sublease Thirteen Thousand (13,000) square feet
or more of the Premises hereunder, then Tenant shall pay to Landlord immediately
upon Tenant's receipt thereof, any and all consideration received by Tenant on
account of such transaction, howsoever the same may be denominated, to the
extent that such consideration exceeds the unamortized cost of any leasehold
improvements to the Premises made and paid for by Tenant, and in the case of
subleases, to the extent that such consideration exceeds the pro rata portion of
the Fixed Minimum Rent and other charges payable by Tenant hereunder
attributable to the sublet portion of the Premises, based on the Gross Leasable
Area of the Premises and the Gross Leasable Area of the Premises sublet. As used
herein "consideration" includes any payments
PAGE 32
34
received by Tenant on account of such assignment or subletting, rent, and other
payments received by Tenant on account thereof, payments made in consideration
of the operation of Tenant's business in the Premises, good will,
non-competition covenants, or any other amounts payable either directly or
indirectly in connection with such transaction.
13.4. Recapture Option. Any time during the thirty (30)-day period
following Landlord's receipt of Tenant's Notice, Landlord may give written
notice to Tenant that Landlord elects to: (i) terminate this Lease, if Tenant
has proposed to assign its interest hereunder; (ii) terminate this Lease with
respect to the portion of the Premises which Tenant desires to sublet, if Tenant
has proposed to sublet Thirteen Thousand (13,000) square feet or more of the
Premises. If Landlord elects to terminate this Lease with respect only to a
portion of the Premises, then this Lease shall be modified to reflect the
smaller square footage of the remaining Premises, including a pro rata
adjustment of rent and other charges due hereunder. If Landlord acts to
terminate this Lease with respect to the entire Premises, then neither Landlord
nor Tenant shall be liable to the other for any reason having to do with this
Lease from and after the date of such termination, except for matters which
shall have arisen prior to such date and except for the obligations of Tenant
under the Lease with respect to the condition of the Premises upon termination
or expiration of this Lease.
13.5. Parameters of Landlord's Consent. Landlord shall have the right to
base its consent to any assignment or sublease hereunder upon such factors and
considerations as Landlord, in its good faith business judgment, deems relevant
or material to the proposed assignment or sublease transaction and the best
interest of the Shopping Center operations. Without limiting the generality of
the foregoing, Tenant acknowledges that it shall be reasonable for Landlord to
withhold its consent to any assignment or sublease transaction hereunder if
Tenant has not demonstrated to Landlord's complete satisfaction, within the
exercise by Landlord of its good faith business judgment, that: (i) the proposed
assignee or sublessee is financially responsible, with sufficient net worth and
net current assets, properly and successfully to operate its business in the
Premises and meet the financial and other obligations of this Lease; (ii) the
proposed assignee or sublessee possesses sound and good business judgment,
reputation, and experience, and proven management skills in the operation of a
business or businesses substantially similar to the uses permitted in the
Premises under Section 5.1.1.; (iii) the use of the Premises proposed by such
assignee or sublessee conforms to the permitted uses specified under Section
5.1.1. above and does not include any of the prohibited uses specified under
Section 5.1.2. above and otherwise conforms with Landlord's tenant-mix
requirements then pertaining in the Shopping Center; (iv) the Percentage Rent
theretofore paid by Tenant under this Lease will not be reduced or adversely
affected as a result of the assignment or sublease transaction; and (v) the
assignment or sublease would not breach any covenant of
PAGE 33
35
Landlord respecting radius, location, use, or exclusivity in any other lease,
financing agreement, or other agreement relating to the Shopping Center or
contained in this Lease.
13.6. Other Terms and Conditions. Each assignment or sublease hereunder
shall be effected by an instrument in writing in form and substance satisfactory
to Landlord, and shall be executed by both Tenant and the assignee or sublessee,
as the case may be. One (1) executed copy of such written instrument shall be
delivered to Landlord concurrently with the consummation of such assignment or
sublease transaction. Each assignee or sublessee in any assignment or sublease
transaction hereunder shall agree in such written instrument to assume and be
bound by all of the terms, covenants, conditions, and obligations of this Lease.
Every sublease shall be subject and subordinate to the provisions of this Lease.
In the event of an assignment or sublease, Tenant shall remain liable for all
its obligations and liabilities under this Lease, including the payment of Fixed
Minimum Rent, Percentage Rent, Common Area Maintenance Costs, and Taxes. No
consent by Landlord to any modification, amendment, or termination of this
Lease, or extension, waiver, or modification of payment or any other obligations
under this Lease, or any other action of Landlord with respect to any assignee
or sublessee, or the insolvency, bankruptcy, or default of any such assignee or
sublessee, shall affect the continuing liability of Tenant for its obligations
and liabilities hereunder, and Tenant waives any defense arising out of or based
thereon. Tenant shall reimburse Landlord for all costs and expenses incurred in
connection with any proposed assignment or sublease transaction hereunder,
including attorneys' fees and lease administration fees incurred by Landlord in
connection with the processing and documentation of any requested assignment or
subletting, regardless of whether such transaction is actually consummated.
Landlord may also require, as a condition of any assignment or subletting, that
Tenant not then have committed an Event of Default.
13.7. Landlord Rights and Remedies. Any assignment or sublease made without
Landlord's prior written consent hereunder shall, at Landlord's sole election,
be void and shall constitute an Event of Default by Tenant under this Lease. No
consent to any assignment or sublease shall constitute a waiver of the
provisions of this Section 13 with respect to any subsequent assignment or
sublease, and each assignment or sublease by Tenant hereunder shall require
Landlord's prior written consent pursuant to this Section 13. If Tenant purports
to assign this Lease, or sublease all or any portion of the Premises, or permit
any person or persons other than Tenant to occupy the Premises, without
Landlord's prior written consent given hereunder, Landlord may collect rent from
the person or persons then or thereafter occupying the Premises and apply the
net amount collected to the Rent hereunder, but no such collection shall be
deemed a waiver of this Section 13, or the acceptance of
PAGE 34
36
any such purported assignee, sublessee, or occupant, or a release of Tenant from
the further performance by Tenant of covenants on the part of Tenant herein
contained.
13.8. Exempt Transfers. Notwithstanding anything to the contrary contained
herein, Tenant shall have the right to assign its interest under this Lease, or
sublet the Premises or any portion thereof, without the consent of Landlord, to
any corporation: (i) with which it may merge or consolidate; (ii) which acquires
a majority of Tenant's other stores or a majority of Tenant's stores in Oregon
or all or substantially all of the shares of stock or assets of Tenant; (iii)
which is a parent or subsidiary of Tenant; or (iv) which is the successor
corporation to Tenant in the event of corporate reorganization. In the event of
any of the transfers described above, Tenant shall give Landlord sixty (60) days
prior written notice of such proposed transfer, and shall provide Landlord with
all documentation reasonably required by Landlord in order to verify that the
proposed transfer falls within the parameters of this Section 13.8.
13.9. Encumbrances. Tenant shall not encumber, hypothecate, or transfer as
security (whether by conditional assignment or sublease, or otherwise) this
Lease, or any Tenant's rights, duties or obligations hereunder.
13.10. No Release of Tenant. Should Tenant either assign its interest under
this Lease or sublet the Premises as permitted in this Section 13, Tenant shall
nevertheless remain liable to Landlord for full payment of the rent and other
charges and full performance of Tenant's other obligations under this Lease. No
consent by Landlord to any modification, amendment or termination of this Lease
or extension, waiver or modification of payment or performance of any other
obligation under this Lease, or any other action of Landlord with respect to any
assignee or sublessee of Tenant, or the insolvency, bankruptcy or default of any
such assignee or sublessee of Tenant shall effect the continuing liability of
Tenant for its obligations and liabilities hereunder, and Tenant waives any
defense arising out of or based thereon.
14. ACCESS.
14.1. Access to Premises. Landlord and its designees shall, after providing
reasonable prior notice to Tenant, have the right to enter upon the Premises at
all reasonable hours (and in emergencies at all times) without diminution, or
abatement of Rent or liability to Tenant: (i) to inspect the same or show the
same to prospective lenders or buyers; (ii) to make repairs, improvements,
additions, or alterations to the Premises, the Building, or any property owned
or controlled by Landlord (and for such purposes erect scaffolding and other
necessary structures where required by the character of the work to be
performed); (iii) to serve or post any notice required or permitted under the
provisions of this Lease or by law; and (iv) for any other lawful purposes. In
the event any activities performed by Landlord at or to the Premises
PAGE 35
37
which are not the result of the request of Tenant or specifically related to
Landlord's obligations with respect to Tenant hereunder and as a result of
Landlord's gross negligence, such activities materially and substantially
interfere with the operation of Tenant's business from the Premises, then Tenant
shall have the right to make claim against Landlord for actual damages sustained
by Tenant as a result of such gross negligence. In no event shall Landlord be
liable to Tenant for consequential damages, indemnification or diminution or
abatement of rent payable hereunder.
14.2. Excavations. If an excavation is made upon the land adjacent to the
Premises or the Building, Tenant shall permit entry to the Premises by all
persons performing such work as Landlord may deem necessary or appropriate to
shore or underpin to preserve the Premises or the Building from injury or
damage, or otherwise. If Landlord is grossly negligent Tenant shall only have a
claim against Landlord for actual damages, but Landlord shall not be liable
under any circumstances to Tenant for consequential damages, indemnification, or
diminution or abatement of Rent payable hereunder, and Tenant waives any such
right or remedy.
15. EMINENT DOMAIN.
15.1. Entire or Substantial Taking. If the Building or the Shopping Center,
or any portion of or interest in either, is taken for any public or quasi-public
use under any statute or by right of eminent domain, or by purchase in lieu
thereof, so that in the reasonable judgment of Landlord and Tenant a reasonable
amount of reconstruction of the Building and/or Shopping Center will not result
in the Premises being reasonably suited for Tenant's continued occupancy for the
uses and purposes for which the Premises are leased, then this Lease shall
terminate as of the date that possession of the Building or Shopping Center, or
part thereof, or interest therein is taken.
15.2. Partial Taking. If any part of or interest in the Building or the
Shopping Center is so taken and the remaining part thereof or interest therein
is, in the reasonable judgment of Landlord and Tenant, after reconstruction of
the remaining Building or Shopping Center, reasonably suitable for Tenant's
continued occupancy for the purposes and uses for which the Building are leased,
then this Lease shall, as to the part of the Building so taken, terminate as of
the date possession of such part is taken, and the Fixed Minimum Rent then in
effect and Tenant's Proportionate Share shall be reduced in the proportion that
the Gross Leasable Area of the part taken (less any additions thereto by reason
of any reconstruction) bears to the original Gross Leasable Area of the
Building. Landlord shall, at its own cost and expense, make necessary repairs or
alterations to the remaining Building and/or Shopping Center, so as to
constitute the remaining Building (or the Building) a complete architectural
unit, provided that (i) the cost of such work does not exceed the amount of the
award available to Landlord as a result of the taking, and (ii) the scope of
such work shall
PAGE 36
38
not exceed that done by Landlord in originally constructing the Building and/or
the Shopping Center. A just part of the Fixed Minimum Rent shall be abated
during such restoration to the extent that such restoration substantially and
materially interferes with the conduct of Tenant's business in the Premises.
15.3. Disposition of Award. All compensation or damages awarded or paid for
any taking hereunder shall belong to and be the property of Landlord, whether
such compensation or damages are awarded or paid as compensation for diminution
in value of the leasehold, the fee, or otherwise, except that Landlord shall not
be entitled to any award made to Tenant for loss of business or the unamortized
cost of Tenant's stock, trade fixtures, or leasehold improvements paid by
Tenant. Tenant waives all right to any portion of the award belonging to
Landlord hereunder, and grants to Landlord all of Tenant's rights therein.
15.4. Further Assurance. Each party shall execute and deliver to the other
all documents or instruments that may be necessary or appropriate to effectuate
the provisions hereof.
16. DAMAGE OR DESTRUCTION.
16.1. Landlord to Rebuild. If the Building is damaged or destroyed by fire
or other casualty insured under Landlord's casualty insurance carried under
Section 6.2., then Landlord shall repair the damaged or destroyed portions of
the Building, using reasonable diligence, unless Landlord elects not to repair
as hereinafter provided. If such damage or destruction substantially interferes
with the conduct of Tenant's business in the Building, then a just part of the
Fixed Minimum Rent shall be abated, to the extent of such interference
reasonably attributable to such damage or destruction, until substantial
completion of such repairs.
16.2. Landlord's Options to Terminate. If (i) fifty percent (50%) or more
of the Gross Leasable Area of the Building or the Shopping Center is damaged or
destroyed by fire or other casualty insured under Landlord's casualty insurance
carried under Section 6.2. (notwithstanding that the Building may sustain no
material damage), or (ii) the Building is damaged or destroyed by casualty so
insured and the cost of repair or replacement equals or exceeds thirty-three and
one-third percent (33-1/3%) of the actual replacement cost thereof, or (iii) the
Building, and/or the Shopping Center, or any portion thereof, are damaged or
destroyed in whole or in part from any cause or casualty for which Landlord does
not actually receive insurance proceeds sufficient to fund the cost of repair
and restoration, then, in any such event, Landlord may elect, in its sole
discretion, to (a) repair or rebuild the damaged or destroyed portion of the
Building or Shopping Center or (b) terminate this Lease by giving written notice
of such termination to Tenant. Landlord shall make its election
PAGE 37
39
within thirty (30) days after any such damage or destruction. If Landlord elects
to repair or rebuild, then it shall proceed with reasonable diligence to make
such repairs or rebuilding. Unless Landlord elects to terminate this Lease
hereunder, any damage or destruction to the Building and/or the Shopping Center
shall have no effect on this Lease and this Lease shall remain in full force and
effect, the parties waiving the provisions of any statute or law to the
contrary.
16.3. Extent of Landlord's Repair and Rebuilding Obligations. If Landlord
elects to repair and rebuild hereunder, then its obligation for such repair and
rebuilding shall be limited to a scope of work not exceeding the original scope
of work for the portions of the Shopping Center repaired and reconstructed
hereunder and Landlord's Work as set forth in Exhibit C, to the end that
Landlord shall restore those portions of the Building constructed by Landlord as
part of Landlord's Work to their condition immediately prior to such damage or
destruction. All costs and expenses for such repair and rebuilding shall be
borne by Landlord. If Landlord elects to repair and rebuild hereunder, then
Tenant shall forthwith replace or repair those portions of the Building
constructed by Tenant as part of Tenant's Work to their condition immediately
prior to such damage or destruction, as well Tenant's signs, trade fixtures,
equipment, display cases, and all other installations made or installed by
Tenant under this Lease, regardless of whether paid for by Landlord or Tenant.
Tenant shall prosecute its work of repair and reconstruction hereunder with all
due diligence and shall re-open for business in the Premises at the earliest
possible time after the event of damage or destruction, so that Landlord will be
deprived of the benefits of Tenant's business operations in the Premises for as
short a time as possible.
16.4. Tenant Waivers. Tenant hereby waives any right at law or in equity
which it might have to terminate this Lease on account of any damage or
destruction to the Building and/or the Shopping Center. In the event of any such
damage or destruction, the rights, duties, and obligations of the parties shall
be governed solely by the applicable provisions of this Lease with respect
thereto.
17. WAIVER OF CLAIMS; INDEMNITY.
17.1. Waiver of Claims. Landlord shall not be liable to Tenant, or to any
other person or entity, from or for any event, occurrence, act, neglect,
omission, loss, damage, injury, or death, howsoever caused or whenever
occurring, including damages occasioned by falling plaster; electricity;
plumbing; gas; water; steam; sprinkler or other pipe and sewage system; or by
the bursting, running, or leaking of any tank, washstand, closet, or waste or
other pipes in or about the Premises, the Building, or the Shopping Center;
damages occasioned by water being upon or coming through the roof, skylight,
vent, trapdoor, or otherwise of any portion of the Building; damages arising
from any act or neglect of tenants, owners, or other
PAGE 38
40
occupants of the Shopping Center, or of adjacent property, or of their
employees, agents, contractors, licensees, or invitees, or the public; or
damages for any failure to furnish, or interruption of, service of any security
personnel or system, water, gas, electricity, and/or telephone; or caused by
fire, accident, riot, strike, labor disputes, acts of God, or the making of or
failure to make any repairs or improvements.
17.2. Tenant's Indemnity. Tenant shall indemnify, defend, protect, and hold
Landlord harmless from and against any and all claims, proceedings, damages,
causes of action, liability, costs, or expense (including attorneys' fees)
arising from or in connection with or caused by: (i) any act, omission, or
negligence of Tenant or any subtenant of Tenant, or their respective
contractors, licensees, invitees, agents, servants, or employees, wheresoever
the same may occur; or (ii) any accident, injury, death, or damage to any person
or property occurring in, on, or about the Premises, or any part thereof, the
sidewalks adjoining the same and any service delivery facilities used by Tenant.
17.3. Landlord's Indemnity. Except as set forth in Section 17.1 above,
Landlord shall indemnify, defend, protect, and hold Tenant harmless from and
against any and all claims, proceedings, damages, causes of action, liability,
costs, or expense (including attorneys' fees) arising from or in connection with
or caused by: (i) any act, omission, or negligence of Landlord or its respective
contractors, licensees, invitees, agents, servants, or employees, wheresoever
the same may occur; or (ii) any accident, injury, death, or damage to any person
or property occurring in, on, or about the Common Area of the Shopping Center.
18. NOTICES.
18.1. Procedure. All notices, consents, waivers, or other communications
which this Lease requires or permits either party to give to the other shall be
in writing and shall be given by personal delivery (including delivery by any
messenger or carrier service which requires a signed receipt) or by registered
or certified mail, or Express Mail, return receipt requested, postage prepaid
(or by facsimile, telecopier, or other equivalent means if personal delivery or
mail delivery is concurrently effected), addressed if to Landlord at Landlord's
address shown below, and addressed if to Tenant at Tenant's address shown below
or to the Premises. Either party may change its mailing address at any time by
giving written notice of such change to the other party in the manner provided
herein, provided that the notified party shall have at least ten (10) days after
receipt of such notice to reflect such change of address in its records. Rent
and other charges required by this Lease to be paid by Tenant to Landlord shall
be delivered to Landlord at Landlord's Eastern Division address set forth below,
or to such other address as Landlord may from time to time specify by written
notice to Tenant. All notices under this Lease shall be deemed given,
PAGE 39
1
41
received, made, or communicated on the date personal delivery is effected or
refused or, if mailed, on the delivery date or attempted delivery date shown on
the return receipt. Notices sent by facsimile, telecopier, or equivalent means
shall not be deemed given, made, received, or communicated until mailing or
personal delivery is complete as provided in this Section.
Notice Address of Landlord: PacTrust
Attn: General Counsel/Unit COS/02
00000 X.X. Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Notice Address of Tenant: G.I. Joe's, Inc.
Attn: Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
18.2. Multiple Tenants; Receipt. If there is more than one (1) person or
entity comprising Tenant, then all notices, consents, waivers, or other
communications under this Lease may be given by or to any one of such persons or
entities, and when so served, shall have the same force and effect as if given
or served upon each such person or entity, and each such person or entity hereby
designates each other such person or entity as its agent for service of such
notices in accordance herewith.
19. DEFAULT; REMEDIES.
19.1. Notice to Tenant. Upon the occurrence of any Event of Default,
Landlord shall give Tenant written notice thereof, specifying the Event of
Default and the provisions of this Lease breached by Tenant, and Tenant shall
have the right to cure such Event of Default within the time periods, if any,
hereinafter specified.
19.1.1. Vacation or Abandonment. For vacation or abandonment of the
Premises, within ten (10) days after Landlord's notice.
19.1.2. Nonpayment of Money. For failure to pay Fixed Minimum Rent,
Percentage Rent, Common Area Maintenance Costs, Taxes, or any other charge or
sum, within ten (10) days after Landlord's notice, unless Tenant has failed more
than two (2) times during a given Lease Year timely to pay any Rent so that
Landlord has been required to give notice hereunder, in which event, on the
third (3rd) and any subsequent failure to timely pay Fixed Minimum Rent,
Percentage Rent, Common Area Maintenance Costs, Taxes, or any other charge or
sum during such Lease Year, Landlord, at its option, may elect to pursue its
rights and remedies under this Lease without giving Tenant written notice or the
opportunity to cure such failure to timely pay such amounts.
PAGE 40
42
19.1.3. Failure to Perform Other Obligations. For failure to perform
any obligation, agreement, or covenant under this Lease, other than nonpayment
of monies and the replacement of glass, plate glass, and storefront parts,
within thirty (30) days after Landlord's notice, unless Tenant has defaulted in
the performance of any obligation, agreement, or covenant more than two (2)
times during the Term and notice of such Event of Default has been given by
Landlord in each instance, in which event no notice or cure period shall
thereafter be required or applicable hereunder. Notwithstanding the foregoing
thirty (30)-day period, if such obligation, agreement, or covenant is of such a
nature that it cannot be cured within thirty (30) days after Landlord's notice,
then Tenant shall not be in default provided that it has commenced to perform
such obligation, agreement, or covenant within such thirty (30)-day period and
is diligently pursuing performance thereof.
19.1.4. Failure to Replace Plate Glass. For failure to replace glass,
plate glass, or storefront parts, within fifteen (15) days after Landlord's
notice, unless Tenant has defaulted in the performance of such obligation more
than two (2) times during the Term and notice of such Event of Default has been
given by Landlord in each instance, in which event no notice or cure period
shall thereafter be required or applicable hereunder.
19.1.5. No Notice. No notice or cure period shall be required or
applicable hereunder for any Event of Default specified in Sections 1.6.3 or
1.6.4.
19.2. Remedy Upon Occurrence of Event of Default. On the occurrence of an
Event of Default which Tenant fails to cure after notice and expiration of the
cure period, if any, specified above, Landlord shall have the right either (i)
to terminate this Lease, and at any time thereafter recover possession of the
Premises, or any part thereof, and expel and remove therefrom Tenant and any
other person occupying the same, by any lawful means, and again repossess and
enjoy the Premises without prejudice to any of the remedies that Landlord may
have under this Lease or at law or in equity by reason of the Event of Default
or of such termination, or (ii) to continue this Lease in effect for so long as
Landlord does not so terminate Tenant's right to possession, and enforce all
Landlord's rights and remedies under this Lease, including the right to recover
Fixed Minimum Rent as it becomes due, or relet the Premises at such rental and
upon such terms and conditions as Landlord, in its sole discretion, may deem
advisable. Acts of maintenance, preservation, or efforts to lease the Premises,
the appointment of a receiver upon application of Landlord to protect Landlord's
interest under this Lease, or re-entry or taking of possession of the Premises
by Landlord hereunder, shall not constitute an election to terminate Tenant's
right to possession unless specific written notice of such termination is given
to Tenant hereunder. Landlord may store any property of Tenant located in the
Premises in a public warehouse, storage facility, or elsewhere at Tenant's
expense or otherwise
PAGE 41
43
dispose of such property in the manner provided by law. If Landlord does not
terminate this Lease hereunder, then Tenant shall continue to pay currently all
amounts payable by Tenant under this Lease, together with the cost of obtaining
possession of and reletting the Premises, any repairs and alterations necessary
to prepare the Premises for reletting, and brokerage commissions and attorneys'
fees incurred in connection therewith, less the rents, if any, received from
such reletting. Any and all monthly deficiencies so payable by Tenant shall be
paid on each due date for Fixed Minimum Rent herein specified. Notwithstanding
any reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease pursuant to this Section 19.2.
19.3. Damages Upon Termination. If Landlord terminates this Lease pursuant
to Section 19.2., then Landlord may exercise all rights and remedies available
to a landlord at law or in equity, including the right to recover from Tenant:
(i) the worth at the time of award of the unpaid Rent and other amounts payable
by Tenant hereunder which had been earned at the time of termination; (ii) the
worth at the time of award of the amount by which the unpaid Rent and such other
amounts which would have been earned after termination until the time of the
award exceeds the amount of loss of Rent and such other amounts that the Tenant
proves could have been reasonably avoided; (iii) the worth at the time of award
of the amount by which the unpaid Rent and such other amounts for the balance of
the term after the time of the award exceeds the amount of loss of Rent and such
other amounts that the Tenant proves could be reasonably avoided; and (iv) any
other amount necessary to compensate Landlord for all the detriment proximately
caused by Tenant's failure to perform its obligations under this Lease or which,
in the ordinary course of things, would be likely to result therefrom. The
"worth at the time of award" of the amounts referred to in clauses (i) and (ii)
shall be computed with Interest. The "worth at the time of award" of the amount
referred to in clause (iii) shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of Baltimore, Maryland, plus one
percent (1%). As used herein, "time of award" shall mean either the date upon
which Tenant pays to Landlord the amount recoverable by Landlord as hereinabove
set forth, or the date of entry of any determination, order, or judgment, of any
court or other legally constituted body determining the amount recoverable,
whichever first occurs.
19.4. Computation of Rent and Other Amounts for Purposes of Default. For
purposes of Section 19.3, unpaid Rent and other amounts which would have accrued
and become payable under this Lease shall consist of the sum of: (i) the total
Fixed Minimum Rent for the balance of the Term, plus (ii) a computation of
Tenant's Proportionate Share of Taxes and Common Area Maintenance Costs for the
balance of the Term, the assumed Taxes and Common Area Maintenance Costs for the
Lease Year in which the Event of Default occurs and each future Lease Year to be
equal to
PAGE 42
4
44
the Taxes and Common Area Maintenance Costs for the Lease Year prior to the
Lease Year in which the Event of Default occurs, compounded at a per annum rate
equal to the mean average rate of inflation for the preceding five (5) Lease
Years as determined by the CPI, plus (iii) a computation of Percentage Rent for
the balance of the Term equal to the average Percentage Rent payable by Tenant
for the three (3) Lease Years immediately prior to the occurrence of the Event
of Default (or if less than three (3) Lease Years have then elapsed, the number
actually then elapsed), compounded at a per annum rate equal to the mean average
rate of inflation for such preceding three (3) Lease Years based on the CPI.
19.5. Waiver of Statutory Notice Periods. The notice periods after Events
of Default specified in Section 19.1. shall be exclusive of any other notice
period provided by law with respect to any such Event of Default, and Tenant
hereby waives any right under law to any other notice period now or hereinafter
enacted.
19.6. Landlord's Right to Perform on Tenant's Breach. In addition to any
other right or remedy of Landlord hereunder, upon the occurrence of an Event of
Default and without waiving or releasing Tenant from any obligation of Tenant
hereunder, Landlord may (but shall not be required to) cure such Event of
Default for the account of Tenant. Landlord shall not be responsible or liable
to Tenant for any loss or damage that may be caused to Tenant's stock or
business by reason of effecting cure hereunder. All sums paid by Landlord and
all costs and expenses incurred by Landlord in connection with such cure
(including attorneys' fees), together with Interest thereon from the respective
dates of Landlord's incurrence of each item of cost or expense, shall be payable
by Tenant on demand.
19.7. Receiver. If a receiver is appointed in any action by Landlord
against Tenant on account of any Event of Default, such receiver may take
possession of any personal property belonging to Tenant and used in the business
conducted on the Premises, and the entry or possession by such a receiver shall
not constitute an eviction of Tenant from the Premises or any portion thereof.
Tenant shall indemnify, defend, protect, and hold Landlord harmless from any
damages, causes of action, liability, cost, or expense (including attorneys'
fees) arising out of or in connection with the entry by such receiver and the
taking of possession of the Premises and/or such personal property. Neither the
application for the appointment of such receiver, nor the appointment itself,
shall constitute an election on Landlord's part to terminate this Lease, unless
written notice of such election is given by Landlord to Tenant hereunder.
PAGE 43
45
19.8. Landlord's Defaults.
19.8.1. Notice and Cure; Landlord's Liability. If Landlord fails to
perform any of its obligations under this Lease, then Tenant shall give Landlord
written notice thereof, specifying with particularity the breach claimed by
Tenant. Landlord shall have the right to cure such breach during the thirty
(30)-day period following receipt of Tenant's notice hereunder, unless such
breach cannot reasonably be cured within such thirty (30)-day period, in which
event Landlord shall not be in default under this Lease if Landlord commences
such cure within such thirty (30)-day period and thereafter diligently
prosecutes the same to completion. If the Premises, or any portion thereof, are
at any time subject to any mortgage or a deed of trust, and Landlord or the
mortgagee or beneficiary of such deed of trust shall have given Tenant a written
request to do so, Tenant shall serve on the mortgagee or beneficiary thereunder
concurrent copies of any notice of default served on Landlord hereunder. If
Landlord fails to cure any noticed breach hereunder within the time period
provided in this Section 19.8.1., then any such noticed mortgagee or beneficiary
shall have an additional thirty (30) days within which to cure Landlord's
breach, plus such additional time as may be necessary to perfect such
mortgagee's or beneficiary's rights and remedies under its mortgage or deed of
trust (including foreclosure proceedings or the appointment of a receiver) and
complete cure in fact. If and when such mortgagee or beneficiary has rendered
performance on behalf of Landlord, Landlord's breach shall be deemed cured, and
if for any reason Landlord's breach is not susceptible of cure, it shall
nevertheless be deemed cured upon such mortgagee's or beneficiary's taking of
possession of Landlord's interest in the Premises. Notwithstanding anything to
the contrary under applicable law, Tenant shall have no right to terminate this
Lease during the notice and cure periods hereunder. If Landlord fails to cure
its breach hereunder (or such breach is not cured by a mortgagee or beneficiary
as herein specified), Tenant may elect to cure such default on Landlord's behalf
and Landlord shall reimburse Tenant for the actual cost of such cure within ten
(10) days of receipt of written demand therefor. In any event, Landlord shall be
liable to Tenant only for Tenant's direct damages caused by Landlord's breach of
this Lease and Tenant waives any rights to recover consequential or punitive
damages on account thereof.
19.8.2. Certain Limitations on Tenant's Remedies. Landlord shall never
be personally liable under this Lease; Tenant shall look solely to Landlord's
interest in the Shopping Center for any recovery of damages for any breach by
Landlord of this Lease, or any recovery of any judgment from Landlord. None of
the members comprising Landlord (whether partners, shareholders, officers,
directors, trustees, employees, beneficiaries, or otherwise) shall ever be
personally liable for any such judgment. There shall be no levy of execution
against any assets of Landlord, other than the Shopping Center, or the assets of
such members on account of any liability of Landlord hereunder. Tenant hereby
waives any right of recovery or satisfaction of
PAGE 44
6
46
any judgment against Landlord or its members, except as to Landlord's interest
in the Shopping Center as herein specified.
19.9. Waiver; Remedies Cumulative. Failure of Landlord to declare an Event
of Default immediately upon the occurrence thereof, or delay in taking any
action in connection therewith, shall not waive such Event of Default, but
Landlord shall have the right to declare any such Event of Default at any time
thereafter. No waiver by Landlord of an Event of Default, or any agreement,
term, covenant, or condition contained in this Lease, shall be effective or
binding on Landlord unless made in writing and no such waiver shall be implied
from any omission by Landlord to take action with respect to such Event of
Default or other such matter. No express written waiver by Landlord of any Event
of Default, or other such matter, shall affect or cover any other Event of
Default, matter or period of time, other than the Event of Default, matter
and/or period of time specified in such express waiver. One or more written
waivers by Landlord of any Event of Default, or other matter, shall not be
deemed to be a waiver of any subsequent Event of Default, or other matter, in
the performance of the same provision of this Lease. Acceptance of Rent by
Landlord hereunder shall not, in and of itself, constitute a waiver of any Event
of Default or of any agreement, term, covenant, or condition of this Lease,
except as to the payment of Rent so accepted, regardless of Landlord's knowledge
of any concurrent Event of Default or matter. All of the remedies permitted or
available to Landlord under this Lease, or at law or in equity, shall be
cumulative and not alternative; invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted
or available right or remedy.
19.10. Interest. Any sum due and payable to Landlord under the terms of
this Lease which is not paid when due shall bear Interest from the date when the
same becomes due and payable by the provisions hereof until paid.
19.11. No Accord and Satisfaction. No payment by Tenant, or receipt by
Landlord, of a lesser amount than the Rent herein provided shall be deemed to be
other than on account of the earliest Rent due and payable hereunder, nor shall
any endorsement or statement on any check, or letter accompanying any check or
payment, as Rent be deemed an accord and satisfaction. Landlord may accept any
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other right or remedy provided in this Lease.
19.12. Waiver of Right of Redemption. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future law in
the event Tenant is evicted or dispossessed from the Premises for any cause, or
in the event Landlord obtains possession of the Premises by reason of the
commission by Tenant of an Event of Default or otherwise.
PAGE 45
47
20. SUBORDINATION AND ATTORNMENT; ESTOPPEL CERTIFICATES.
20.1. Subordination. This Lease, and all of Tenant's rights and interest in
the leasehold estate hereunder, shall be subject and subordinate to any
mortgages or deeds of trust that now encumber, or may hereafter be placed upon,
the Premises, and to the rights of the mortgagees or beneficiaries thereunder,
any and all advances made or to be made thereunder, the interest thereon, and
all modifications, renewals, replacements and extensions thereof so long as such
mortgagee or beneficiary has first executed a non-disturbance agreement in form
and content reasonably acceptable to Tenant. If any such mortgagee or
beneficiary so elects in writing, then this Lease shall be superior to the lien
of the mortgage or deed of trust held by such mortgagee or beneficiary, whether
this Lease is dated or recorded before or after such mortgage or trust deed.
Upon request, Tenant shall promptly execute and deliver to Landlord, or any such
mortgagee or beneficiary, any documents or instruments required by any of them
to evidence subordination of this Lease hereunder or to make this Lease prior to
the lien of any mortgage or deed of trust as herein specified. If Tenant fails
or refuses to do so within ten (10) days after written request therefor by
Landlord or such mortgagee or beneficiary, such failure or refusal shall
constitute an Event of Default by Tenant, but shall in no way affect the
validity or enforceability of the subordination to or by the mortgage or deed of
trust held by such mortgagee or beneficiary. As used herein, the terms
"mortgage" and "deed of trust" include any sale and leaseback transaction in
which Landlord sells and simultaneously leases back all or any portion of its
interest in the Shopping Center.
20.2. Attornment by Tenant. Upon enforcement of any rights or remedies
under any mortgage or deed of trust to which this Lease is subordinated
(including proceedings for judicial foreclosure or a trustee's sale pursuant to
a power of sale, or deed in lieu of foreclosure delivered by Landlord to the
mortgagee or beneficiary thereunder), and so long as such mortgagee or
beneficiary has first executed a non-disturbance agreement in form and content
reasonably acceptable to Tenant, Tenant shall, at the election of the purchaser
or transferee under such right or remedy, attorn to and recognize such purchaser
or transferee as Tenant's landlord under this Lease. Tenant shall execute and
deliver any document or instrument required by such purchaser or transferee
confirming the attornment hereunder.
20.3. Subordination to Covenants and Easements. This Lease, and all of
Tenant's rights and interest in the leasehold estate hereunder, is and shall be
subject and subordinate to the ECR and to any and all amendments or
modifications at any time made thereto. Tenant shall promptly upon request
execute and deliver to Landlord any documents or instruments required to
evidence the subordination of this Lease to the ECR and any amendment thereto.
PAGE 46
48
20.4. Estoppel Certificates. Landlord and/or Tenant shall, at any time and
from time to time, upon not less than twenty (20) days prior written request by
the other party, execute, acknowledge and deliver to such party, or such party's
designee, a statement in writing certifying: (i) the date of this Lease, and
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same are in full force and effect as modified and
stating the date[s] and identifying the nature of the modification[s]); (ii) the
amounts of pre-paid Rent and other charges (if any) and the dates to which such
Rent and other charges have been paid, if applicable; (iii) and confirming
Tenant's acceptance of the Premises and the Term Commencement Date; (iv) that
neither Landlord nor Tenant is in default under this Lease; that no notice has
been received by or delivered to either party of any Event of Default which has
not been cured, except as to Events of Default specified in the certificate; and
that no event has occurred which, but for the giving of required notice or
expiration of an applicable grace period, would constitute an Event of Default
by either party under this Lease; (v) that Landlord is not in default in the
performance of any of its obligations under this Lease; that neither party has
given notice of default to the other; and that no event has occurred which, but
for the giving of required notice or expiration of an applicable grace period,
would constitute a default by either party hereunder, and (vi) such other
matters as may be reasonably requested by either party or any designee of such
party. Any statement delivered pursuant to this Section 20.4. may be relied upon
by any prospective purchaser, investor, encumbrancer, mortgagee, or assignee of
any encumbrancer or mortgagee, of the Premises or the Shopping Center, or any
portion of or interest in either. Upon not less than ten (10) days prior written
request by Landlord, Tenant shall execute, acknowledge, and deliver to any
lender supplying financing to the Shopping Center, or any portion thereof or
interest therein, an estoppel certificate on such lender's standard form. If
Tenant fails or refuses to give a statement or certificate within the time
provided hereunder after proper notice and request, then the information
contained in such statement or certificate shall be deemed correct for all
purposes.
21. SECURITY DEPOSIT. [Intentionally omitted.]
22. SURRENDER OF PREMISES.
22.1. Condition of Premises. On the last day or sooner termination of the
Term, Tenant shall quit and surrender the Premises to Landlord, broom clean, in
good order, condition, and repair (reasonable wear and tear and damage by
insured casualty excepted) as required by Section 9.2., together with all
alterations, additions, and improvements made in, to, or on the Premises, except
movable furniture and Tenant's trade fixtures installed at the expense of
Tenant. On or before the end of the Term, Tenant shall remove all its personal
property from the Premises, and all property of Tenant not removed hereunder
shall be deemed, at Landlord's option, to be abandoned
PAGE 47
49
by Tenant and Landlord may store such property in Tenant's name at Tenant's
expense, and/or dispose of the same in any manner permitted by law. Tenant shall
repair any and all damage to the Premises caused by Tenant's removal of its
furniture, trade fixtures, or property hereunder. If the Premises are not
surrendered as of the end of the Term in the manner and condition herein
specified, Tenant shall indemnify, defend, protect, and hold Landlord harmless
from and against all loss, liability, cost, or expense (including attorneys'
fees) resulting from or caused by Tenant's delay or failure in so surrendering
the Premises, including any claims made by any succeeding tenant due to such
delay or failure.
22.2. Effect of Surrender on Subleases. The voluntary or other surrender of
this Lease by Tenant, or a mutual cancellation thereof, or a termination of this
Lease prior to the expiration of the Term, shall not work a merger and shall, at
the sole option of Landlord, either terminate any or all existing subleases or
subtenancies, or operate as an assignment to it of all or any such subleases or
subtenancies.
23. SALE OF PREMISES BY LANDLORD.
23.1. Release of Landlord. In the event of any sale or exchange by the
Landlord of its interest in the Premises and assignment by Landlord of this
Lease, Landlord shall be released and relieved of all liability under any and
all of its covenants and obligations contained in or derived from this Lease
accruing after the consummation of such sale or exchange and assignment.
24. BROKERS.
24.1. Warranty. Tenant and Landlord each warrants and represents to the
other party that each warranting party has not had any dealings with any
realtor, broker or agent, other than Xxxxxxx Xxxxxxx of HSM Commercial Real
Estate Brokerage ("Xxxxxxx") in connection with the negotiation of this Lease
and shall pay, indemnify, defend, protect, and hold the other party harmless
from and against any cost, expense, or liability (including attorneys' fees) on
account of or in connection with any compensation, commissions, or charges
claimed by any other realtor, broker, or agent with respect to this Lease and/or
the negotiation thereof resulting from any breach of this warranty. Landlord
shall pay a real estate commission of One Hundred Ten Thousand Dollars
($110,000) to Xxxxxxx in accordance with a separate agreement between Xxxxxxx
and Landlord.
25. HAZARDOUS MATERIALS
25.1. Landlord's Representations. Landlord represents and warrants to
Tenant that as of the Term Commencement Date, the Premises and the Shopping
Center shall be free of all Hazardous Materials.
PAGE 48
50
25.2. Tenant's Obligations.
25.2.1. Covenants. If Tenant obtains knowledge of the actual or
suspected Release of Hazardous Materials on, about, under, or in the Premises or
the Shopping Center, then Tenant shall promptly notify Landlord of same. Neither
Tenant nor its agents, employees, or contractors, shall cause or permit
Hazardous Materials to be brought upon, kept, or used in, on, or about the
Premises or the Shopping Center except in the normal conduct of its business and
then in strict compliance with all Environmental Laws. Tenant shall immediately
notify Landlord of any inquiry, test, investigation, or enforcement proceeding
by or against Tenant involving the Premises and/or the Shopping Center and a
Hazardous Material.
25.2.2. Indemnification. If Tenant breaches any obligation set forth
in this Section or if a Release is caused or permitted by Tenant or its agents,
employees, or contractors, and results in contamination of the Premises or the
Shopping Center, then Tenant shall indemnify, defend, protect, and hold
Landlord, its lenders, employees, agents, partners, partners of partners,
officers and directors, harmless from and against any and all claims, actions,
suits, proceedings, losses, costs, damages, liabilities (including without
limitation sums paid in settlement of claims), deficiencies, fines, penalties,
punitive damages, or expenses (including, without limitation, reasonable
attorneys' fees and consultants' fees, investigation and laboratory fees, court
costs, and litigation expenses) which arise during or after the Term as a result
of such breach or contamination. This indemnity shall include, without
limitation (i) any damage, liability, fine, penalty, punitive damage, cost, or
expense arising from or out of any claim, action, suit, or proceeding for
personal injury (including sickness, disease, or death), tangible property
damage, nuisance, pollution, contamination, leak, spill, Release, or other
effect on the environment, and (ii) the cost of any required or necessary
investigation, repair, clean-up, treatment, or detoxification of the Premises or
the Shopping Center and the preparation and implementation of any closure,
disposal, remediation, or other required actions in connection with the Premises
or the Shopping Center.
26. GENERAL PROVISIONS.
26.1. Relationship. Nothing contained in this Lease shall be deemed or
construed by the parties or by any third person to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any
association between Landlord and Tenant, and neither the method of computation
of Rent, nor any other provision contained in this Lease, nor any acts of the
parties shall be deemed to create any relationship between Landlord and Tenant,
other than the relationship of landlord and tenant.
PAGE 49
51
26.2. Binding on Successors. Subject to the provisions of Section 13
regarding assignment and subletting by Tenant, all of the provisions, terms,
covenants, and conditions of this Lease shall be binding upon and inure to the
benefit of the parties and their respective heirs, executors, administrators,
successors and assigns.
26.3. Litigation Expenses. If either party brings any action or proceeding
against the other (including any cross-complaint, counterclaim, or third party
claim) to enforce or interpret this Lease, or otherwise arising out of this
Lease, the prevailing party in such action or proceeding shall be entitled to
its costs and expenses of suit, including reasonable attorneys' fees, expert
witness fees, and accountants' fees, which shall be payable whether or not such
action or proceeding is prosecuted to judgment. "Prevailing party" within the
meaning of this Section 26.3. shall include a party who dismisses an action for
recovery hereunder in exchange for payment of the sums allegedly due,
performance of covenants allegedly breached, or consideration substantially
equal to the relief sought in the action.
26.4. Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Oregon.
26.5. Excuse for Non-Performance. If either party is delayed in the
performance of any covenant of this Lease because of acts of the other party,
unusual action of the elements, war, riot, strikes, lockouts, labor disputes,
inability to procure or general shortage of labor or materials in the normal
channels of trade, or delay in governmental action or inaction where action is
required, or any other condition (excluding financial inability, imprudent
management, or negligence) beyond the reasonable control of such party, then
such performance shall be excused for the period of the delay and the period of
such performance shall be extended for a period equivalent to the period of such
delay, except that the foregoing shall in no way affect or apply to (i) Tenant's
obligation to pay Rent or any other sums or amounts hereunder, (ii) the length
of the Term, or (iii) Tenant's covenants contained in Section 5 or any other
provision of this Lease which obligates Tenant to open and/or operate its
business in the Premises, or use due diligence so to do. Nothing herein
contained shall excuse a party from exercising all due diligence and taking all
necessary actions possible under the circumstances to terminate any delaying
cause herein specified at the earliest feasible time.
26.6. Construction and Interpretation. Except in Section 1 ("Definitions")
and the Table of Contents, the headings or titles to the sections of this Lease
are not a part of this Lease and shall have no effect upon the construction or
interpretation of any part thereof. The use in this Lease of the words
"including," "such as," or words of similar import when following any general
term, statement, or matter shall not be construed to limit such statement, term,
or matter to the specific items or matters,
PAGE 50
52
whether or not language of non-limitation such as "without limitation" is used
with reference thereto, but rather shall be deemed to refer to all other items
or matters that could reasonably fall within the broadest possible scope of such
statement, term, or matter. All provisions of this Lease have been negotiated by
Landlord and Tenant at arm's length and neither party shall be deemed the
scrivener of this Lease. This Lease shall not be construed for or against either
party by reason of the authorship or alleged authorship of any provision hereof
or by reason of the status of the respective parties as Landlord or Tenant.
26.7. Entire Agreement and Amendment. This Lease, together with the
Exhibits hereto, contains all the representations and the entire understanding
between the parties with respect to the subject matter hereof. The Exhibits to
this Lease are fully incorporated herein by reference. Any prior negotiations,
correspondence, memoranda, agreements, representations, or warranties are
replaced in total by this Lease and the Exhibits hereto. All reliance with
respect to representations and warranties is solely upon the representations and
warranties contained in this Lease. This Lease may be modified or amended only
by an agreement in writing signed by each of the parties.
26.8. References. All references herein to a given section, subsection or
Exhibit refer to the sections, subsections, and Exhibits of this Lease.
References to a party or parties shall refer to Landlord or Tenant, or both, as
the context may require.
26.9. Warranty of Authority to Enter into Lease. Tenant warrants and
represents to Landlord that Tenant has the full right, power, and authority to
enter into this Lease and has obtained all necessary consents and approvals from
its partners, officers, board of directors, or other members required under the
documents governing its affairs in order to consummate the leasing transaction
contemplated hereby. The persons executing this Lease on behalf of Tenant have
the full right, power, and authority so to do and affirm the foregoing warranty
on behalf of Tenant and on their own behalf.
26.10. Severability of Provisions. If any term or provision of this Lease,
or the application thereof to any person or circumstance, shall be invalid or
unenforceable, then the remainder of this Lease, or the application of such term
or provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby.
26.11. Lease Modifications in Connection with Financing. If Landlord
finances the construction of improvements on and to the Shopping Center, or
otherwise procures financing secured by the Shopping Center, or any portion
thereof or interest therein, then the terms and provisions of this Lease may be
subject to
PAGE 51
53
review and approval by the financial source providing such financing. If any
such financial source should require, as a condition to such financing, any
modification of the terms and provisions of this Lease (other than the Fixed
Minimum Rent or Percentage Rent and the location of the Premises), Tenant shall
execute any and all documents desired by Landlord to effect the modification. If
Tenant should refuse to approve and execute any documents so desired, then
Landlord shall have the right by notice to Tenant to terminate this Lease.
26.12. Other Tenancies. Landlord reserves the absolute right to effect such
other tenancies in the Shopping Center as Landlord, in the exercise of its sole
discretion, determines may best promote the interests of the Shopping Center.
Landlord does not warrant, represent, or covenant, expressly or impliedly, that
any specific lease or leases now or hereafter in effect between Landlord and any
third parties will be continued in effect for any period of time, that any other
tenant or tenants, or owner, shall during the Term continue to occupy any space
in the Shopping Center; Tenant, in entering into this Lease, has not relied upon
the continued existence or operation of any other tenant or tenants or owner
within the Shopping Center, notwithstanding any other lease or leases in
existence at the time of execution hereof or commencement of the Term.
Notwithstanding the foregoing, so long as Tenant occupies and uses the Premises
for the Primary Purpose (as hereinafter defined), 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 (the "Primary
Purpose") unless such Primary Purpose occupies no more than ten percent (10%) or
two thousand five hundred (2,500) square feet, whichever is greater, of such
tenant's premises.
26.13. Time of Essence. Time is of the essence with respect to the
performance of each of the covenants and agreements contained in this Lease.
26.14. Non-Discrimination. Tenant covenants by and for itself and its
heirs, executors, administrators, and assigns, and all persons claiming under or
through Tenant, and this Lease is made and accepted upon and subject to the
following conditions:
There shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the Premises nor shall Tenant itself,
nor any person claiming under or through Tenant, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the Premises.
PAGE 52
54
26.15. Co-Tenancy Agreement. Landlord reserves the absolute right to effect
such other tenancies in the Shopping Center as Landlord, in the exercise of its
sole discretion, determines may best promote the interest of the Shopping
Center. Except with respect to the occupancy of Waremart, Inc. ("Waremart"), an
Idaho corporation, Landlord does not warrant, represent or covenant, expressly
or impliedly, that any specific lease or leases now or hereafter in effect
between Landlord and any third parties will be continued in effect for any
period of time, or that any other tenant or tenants, or owner, shall during the
Term continue to occupy any space in the Shopping Center. Except with respect to
Waremart, Tenant, in entering into this Lease, has not relied upon the continued
existence or operation of any other tenant or tenants or owner within the
Shopping Center, notwithstanding any other lease or leases in existence at the
time of execution hereof or commencement of the Term.
With respect to Waremart, Tenant's obligations hereunder shall be
conditioned upon (i) the acquisition by Waremart of fee title to a portion of
the Shopping Center on or before March 31, 1998, and (ii) the opening by
Waremart of a grocery store of at least sixty-five thousand (65,000) square
feet. If for any reason, Waremart does not acquire fee title to a portion of the
Shopping Center on or before March 31, 1998, Landlord and Tenant shall have a
one-time right to terminate this Lease by delivering notice to the other party
as set forth herein. If for any reason, Waremart does not open for business in
the Shopping Center on or before February 1, 1999, Tenant shall have the
one-time right to terminate this Lease by delivering written notice to Landlord
as set forth below. Any notice required under this Section 26.15 exercise a
Right of Termination shall only be effective if delivered by the terminating
party to the other party at least ninety (90) days prior to the date of such
termination. If, as to Warmer's failure to acquire fee title to a portion of the
Shopping Center, the terminating party fails to provide the other party with
notice of such termination on or before May 1, 1998, and as to Waremart's
failure to open for business in the Shopping Center, if Tenant fails to provide
Landlord with notice of termination on or before March 1, 1999, that party shall
be deemed to have waived its right to terminate this lease as aforesaid. If for
any reason Waremart does not open for business in the Shopping Center on or
before February 1, 1999, Tenant shall have the one-time right to terminate this
Lease by delivering to Landlord ninety (90) days prior written notice (the
"Termination Notice") exercising such right. If Tenant fails to provide Landlord
with the Termination Notice on or before March 1, 1999, Tenant shall be deemed
to have waived its right to terminate this Lease as a result of Waremart's
failure to open.
26.16 Landlord Waiver. Upon receipt thirty (30) days prior written request
therefore, Landlord shall deliver to Tenant a document in form and content
reasonably satisfactory to Landlord wherein Landlord waives any claim Landlord
may thereafter have to levy against Tenant's furniture, fixtures, equipment or
other personal property
PAGE 53
14
55
in the Premises and shall deliver such document to Tenant within such thirty
(30) day period.
IN WITNESS WHEREOF, the parties have entered into this Lease on the
respective dates set opposite their signatures below, but this Lease on behalf
of such parties shall be deemed to have been dated as of the date first above
written.
LANDLORD:
PACIFIC REALTY ASSOCIATES, L.P., a
Delaware limited partnership
By PacTrust Realty, Inc.,
a Delaware corporation,
its General Partner
Date: 1/28, 1998 By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
-----------------------------------------
(typed or printed name)
Its President
-------------------------------------
TENANT:
G.I. JOE'S, INC.,
an Oregon corporation
Date: 1/28, 1998 By /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx
-----------------------------------------
(typed or printed name)
Its President & CEO
-------------------------------------
By
---------------------------------------
-----------------------------------------
(typed or printed name)
Its
--------------------------------------
PAGE 54
56
EXHIBIT F
RENT CALCULATION
------------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT COSTS - CURRENT RENT@ 11% RENT PER
SQ. FT.
--------
XXXXX 2,832,103
A&E 57,910
TIF See Below
TAX 1,685
INTEREST See Below
PERMITS 177,162 3,068,860
XXXXX 444,116
LANDSCAPE 93,771
OPEN SPACE 47,748 585,635
DEVELOPMENT INTEREST 84,566
OFF SITE 267,848
R. E. COMMISSION 110,256
LESS PAY DOWN (500,000)
----------------------------------------------------------------------------------------------------------------
TOTAL DEVELOPMENT COSTS 3,617,165 $397,888
----------------------------------------------------------------------------------------------------------------
LAND
55,120 SF /.25 = 220,480 SF @ $6.00 1,322,880
11,024 SF USEABLE OPEN SPACE @ $6.00 66,144
----------------------------------------------------------------------------------------------------------------
TOTAL LAND VALUE 1,389,024 $152,793
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
TOTAL ANNUAL RENT $550,681 $9.57
------------------------------------------------------------------------------------------------------------------------------
ADD 5% CONTINGENCY ON XXXXX & XXXXX 163,811 $18,019
ADD TIF 171,390 $18,853
----------------------------------------------------------------------------------------------------------------
TOTAL CONTINGENCY RENT $36,872
------------------------------------------------------------------------------------------------------------------------------
TOTAL RENT IF CONTINGENCY & TIF SPENT $587,553 $10.21
------------------------------------------------------------------------------------------------------------------------------
PAGE 1
57
EXHIBIT F
Initial Estimate of Off-Site Improvement Work
and Construction Costs
Description of Work Estimated Cost G.I. Joe's Percentage G.I. Joe's Estimated Cost
(See Attached Exhibit E-1 Share of Costs of Improvements
for Location of Improvements)
I. Public Street Improvements
A. ALOCLEK DRIVE
1. Signal at Cornell* $ 175,000 11% $ 19,250
2. Left Turn Lanes/Median Modification* 63,500 11% 6,985
3. Addition of Two Right Turn Lanes on Cornell 49,000 11% 5,390
Eastbound
4. Three Lane Road from Cornell to Xxxxxxxxx Pass 766,500 11% 84,315
5. Signal at Xxxxxxxxx Pass 175,000 11% 19,250
-------
TOTAL COST $1,229,000 11% $135,190
*If Fairfield as developer of Ronler Green contributes
to cost of items I.A.1 or 2, the total will be reduced
accordingly.
X. XXXXXX STREET
1. Signal at Cornell - Note: This is in addition to Allow $ 75,000 11% $ 8,250
previously installed signal. The cost included
with commercial project would be controller/sensor
adjustments and pole, arm and head installation.
2. Add an additional thru/right turn lane west of 35,500 11% 3,905
Cornell
3. Xxxxxx Thru Property
a. Five Lane plus Wide Median/Left Turn Lane (West 224,000 11% 24,646
1/4 Section)
b. Four Lane Plus Parking (N. side only) (Mid 1/4 219,000 11% 24,090
Section)
$214,000 $ 23,540
-------- --------
Sub Total $767,500 11% 72,270
c. Three Lane (East 1/2 Section) 175,000 11% 19,250
32,000 11% 3,520
--------- ---------
4. Signal at Xxxxxxxxx
PAGE 1
58
5. Add Left Turn Lane Westbound on Amberglen/Old $974,500 11% $107,195
Cornell East of Xxxxxxxxx Pass
TOTAL
X. XXXXXXX ROAD: These are additional
improvements that occur other than at Aloclek Road
or Xxxxxx.
1. Two Right Turn In and Out Only Intersections 98,000 11% 10,780
2. Add Second Exclusive Left Turn Lane Eastbound at 149,000 11% 16,390
-------- -------
Xxxxxxxxx Pass
TOTAL $247,000 11% 27,170
X. XXXXXXXXX PASS ROAD: These are 1/2 street improvements
to complete MSTIP County road project on west side
(adjacent to property).
1. Left Turn Lane Northbound at Aloclek 18,000 11% 1,980
2. Left Turn Lane Northbound at Xxxxxx (Included in 0
County Project)
3. Balance of 1/2 street improvements on Xxxxxxxxx $232,500 11% $ 25,250
-------- --------
Pass Road along property frontage (to Aloclek)
TOTAL $250,500 11% $27,555
E. 231 ST/BASELINE ILLUMINATION: This is a potential Allow $25,000 11% $ 2,750
safety priority index system (SPIS) improvement
required. Requirements unknown.
II. "OFF-SITE" Storm, SANITARY, WATER AND
DRIVE IMPROVEMENTS: "Off-site" is defined as
external to the property boundary or within the property
to provide main line system lineage (see map). This
does not include systems in Xxxxxx or Aloclek Drive.
These improvements are included in the Public Street
Improvements.
A. Storm Drain Improvements in Xxxxxxxxx south of $234,000 11% $25,740
Southern Road
B. Sanitary Sewer and Storm Drain Improvements in 24,000 11% 2,640
Aloclek/Southern Road
PAGE 2
59
C. North/South Internal Main Drive from Southern Road to $342,000 17% $ 58,140
-------- --------
Xxxxxx
TOTAL $600,000 86,520
CONSTRUCTION GRAND TOTAL $3,326,000 $386,380
NOTES: Verify on-site or off-site tie-ins for storm drainage, sanitary and water
needs other than those provided in above systems. Also add consultant/City fees.
Verify signal/controller locations (C2 costs).
III. The following costs are not included but will be added when determined:
1. Landscaping
2. Entry Features
3. Special Pavement/Intersection Treatment
4. Electrical, Telephone, Cable and Gas System Costs
5. Import/Export or Soil Amendment Costs
6. Water Quality Facilities (to be included in property site improvements)
PAGE 3
60
EXHIBIT A
TO
CROSSROADS AT ORENCO STATION LEASE
[MAP OF ORENCO COMMERCIAL CENTER HERE]
61
EXHIBIT B
Shopping Center Legal Description
The Shopping Center Legal Description is Comprised of
Orenco Commercial Tracts 3, 4 and 5
62
OCTOBER 14, 1997
LEGAL DESCRIPTION
ORENCO COMMERCIAL TRACT 3 JOB NO. 381-010
A TRACT OF LAND LOCATED IN THE SOUTHWEST ONE-QUARTER OF SECTION 26, TOWNSHIP 1
NORTH, RANGE 2 WEST, WILLAMETTE MERIDIAN, AND ALSO LOCATED IN THE XXXXX XXXXXX
D.L.C. NO. 48, IN THE CITY OF HILLSBORO, WASHINGTON COUNTY, OREGON, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH RIGHT OF WAY LINE OF X.X. XXXXXXX ROAD (COUNTY ROAD 2662,
BEING 114.00 FEET WIDE) AT ITS POINT OF INTERSECTION WITH THE CENTERLINE OF
VACATED X.X. XXXXXXX ROAD (COUNTY ROAD 1149); THENCE NORTH 86(degree)10'30"
EAST, ALONG SAID CENTERLINE, 1508.04 FEET; THENCE NORTH 03(degree)49'30" EAST,
30.32 FEET TO A POINT ON A SPIRAL CURVE ON THE SOUTH LINE OF THAT TRACT OF LAND
DESCRIBED IN DEED DOCUMENT NO. 84-035094, WASHINGTON COUNTY DEED RECORDS, SAID
POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 03(degree)49'30" WEST,
146.01 FEET; THENCE NORTH 86(degree)10'32" EAST, 6.00 FEET; THENCE NORTH
03(degree)49'30" WEST, 190.00 FEET; THENCE SOUTH 86(degree)10'30" WEST, 71.67
FEET; THENCE NORTH 03(degree)49'30" WEST, 404.50 FEET; THENCE NORTH
86(degree)10'30" EAST, 418.00 FEET; THENCE NORTH 03(degree)49'30" WEST, 120.56
FEET; THENCE NORTH 75(degree)35'18" EAST, 40.69 FEET; THENCE SOUTH
03(degree)49'30" EAST, 831.18 FEET TO THE SOUTH LINE OF THE LAND DESCRIBED IN
DEED DOCUMENT NO. 84-035094; THENCE WESTERLY, ALONG SAID SOUTH LINE, 7.51 FEET
ON THE ARC OF A NONTANGENT 686.20 FOOT RADIUS CURVE CONCAVE TO THE NORTH THROUGH
A CENTRAL ANGLE OF 00(degree)37'37" (THE LONG CHORD BEARS SOUTH 69(degree)49'51"
WEST, 7.51 FEET) TO A POINT OF SPIRAL CURVATURE; THENCE 386.80 FEET MORE OR LESS
ON THE ARC OF A SPIRAL CURVE TO THE RIGHT (THE LONG CHORD BEARS SOUTH
80(degree)56'39" WEST, 386.74 FEET TO THE TRUE POINT OF BEGINNING, CONTAINING
313,870 SQUARE FEET, OR 7.21 ACRES, MORE OR LESS.
REFERENCE SURVEY- XXXX XX XXXXXX XXXX XXXXXX 0000, XXXXXXXXXX XXXXXX SURVEY
RECORDS.
63
OCTOBER 13, 1997
LEGAL DESCRIPTION
ORENCO COMMERCIAL TRACT 4 JOB NO. 381-010
A TRACT OF LAND LOCATED IN THE SOUTHWEST ONE-QUARTER OF SECTION 26, TOWNSHIP 1
NORTH, RANGE 2 WEST, WILLAMETTE MERIDIAN, AND ALSO LOCATED IN THE XXXXX XXXXXX
D.L.C. NO. 48, IN THE CITY OF HILLSBORO, WASHINGTON COUNTY, OREGON, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH RIGHT OF WAY LINE OF X.X. XXXXXXX ROAD (COUNTY ROAD 2662,
BEING 114.00 FEET WIDE) AT ITS POINT OF INTERSECTION WITH THE CENTERLINE OF
VACATED X.X. XXXXXXX ROAD (COUNTY ROAD 1149); THENCE NORTH 86(degree)10'30"
EAST, ALONG SAID CENTERLINE, 847.86 FEET TO THE TRUE POINT OF BEGINNING; THENCE
NORTH 03(degree)49'30" WEST, 64.78 FEET; THENCE NORTH 10(degree)12'41" EAST,
74.94 FEET; THENCE NORTH 03(degree)49'30" WEST, 264.47 FEET; THENCE NORTH
34(degree)03'05" EAST, 467.32 FEET; THENCE NORTH 86(degree)10'30" EAST, 212.15
FEET TO A POINT OF CURVATURE; THENCE 39.18 FEET ALONG THE ARC OF A 25.00 FOOT
RADIUS CURVE TO THE LEFT THROUGH A CENTRAL ANGLE OF 89(degree)47'49" (THE LONG
CHORD BEARS NORTH 41(degree)16'35" EAST, 35.29 FEET); THENCE NORTH
03(degree)37'18" WEST, 76.10 FEET TO A POINT OF CURVATURE; THENCE 23.75 FEET
ALONG THE ARC OF A 60.00 FOOT RADIUS CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE
OF 22(degree)40'34" (THE LONG CHORD BEARS NORTH 07(degree)30'47" EAST, 23.59
FEET); THENCE NORTH 18(degree)51'00" EAST, 20.83 FEET; THENCE 168.65 FEET ALONG
THE ARC OF A NONTANGENT 358.00 FOOT RADIUS CURVE CONCAVE TO THE NORTH THROUGH A
CENTRAL ANGLE OF 26(degree)59'27" (THE LONG CHORD BEARS SOUTH 82(degree)55'12"
EAST, 167.09 FEET); THENCE NORTH 83(degree)35'04" EAST, 174.86 FEET; THENCE
NORTH 86(degree)01'45" EAST, 115.25 FEET; THENCE NORTH 75(degree)35'12" EAST,
3.39 FEET; THENCE SOUTH 03(degree)49'30" EAST, 120.56 FEET; THENCE SOUTH
86(degree)10'30" WEST, 418.00 FEET; THENCE SOUTH 03(degree)49'30" EAST, 404.50
FEET; THENCE NORTH 86(degree)10'30" EAST, 71.67 FEET; THENCE SOUTH
03(degree)49'30" EAST, 190.00 FEET; THENCE SOUTH 86(degree)10'32" WEST, 6.00
FEET; THENCE SOUTH 03(degree)49'30" EAST, 146.01 FEET TO A POINT ON A SPIRAL
CURVE ON THE SOUTH LINE OF THAT TRACT OF LAND DESCRIBED IN DEED DOCUMENT NO.
84-035094; THENCE 3.53 FEET ALONG THE ARC OF A NONTANGENT SPIRAL CURVE CONCAVE
TO THE NORTH (THE SPIRAL CHORD BEARS SOUTH 80(degree)56'42" WEST, 3.53 FEET) TO
THE NORTH RIGHT OF WAY LINE OF X.X. XXXXXXX ROAD (COUNTY ROAD NO. 1149, BEING
60.00 FEET WIDE); THENCE, ALONG SAID XXXXX XXXXX XX XXX XXXX, XXXXX
00(xxxxxx)00'00" WEST, 528.32 FEET TO THE WEST END OF THE UNVACATED XXXXXXX XX
XXXX XXXXXX XXXX XX. 0000; THENCE SOUTH 03(degree)49'30" EAST, 30.00 FEET TO XXX
XXXXXXXXXX XX XXXX XXXXXX XXXX XX. 0000; THENCE SOUTH 86(degree)10'30"
64
WEST, 128.34 FEET TO THE TRUE POINT OF BEGINNING, CONTAINING 458,422 SQUARE FEET
OR 10.52 ACRES, MORE OR LESS.
REFERENCE SURVEY- XXXX XX XXXXXX XXXX XXXXXX 0000, XXXXXXXXXX XXXXXX SURVEY
RECORDS.
65
OCTOBER 13, 1997
LEGAL DESCRIPTION
ORENCO COMMERCIAL TRACT 5 JOB NO. 381-010
A TRACT OF LAND LOCATED IN THE SOUTHWEST ONE-QUARTER OF SECTION 26, TOWNSHIP 1
NORTH, RANGE 2 WEST, WILLAMETTE MERIDIAN, AND ALSO LOCATED IN THE XXXXX XXXXXX
D.L.C. NO. 48, IN THE CITY OF HILLSBORO, WASHINGTON COUNTY, OREGON, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTHEASTERLY RIGHT OF WAY LINE OF X.X. XXXXXXX ROAD (COUNTY
ROAD 2662) AT ENGINEER'S STATION 78+32.62/57.00 FEET RIGHT AS SHOWN ON XXX XXXX
XX XXXXXX XXXX XX. 0000, XXXXXXXXXX XXXXXX SURVEY RECORDS; THENCE CONTINUING ON
SAID RIGHT XX XXX XXXX, XXXXX 00(xxxxxx)00'00" EAST, 558.02 FEET; THENCE,
LEAVING SAID RIGHT XX XXX XXXX, XXXXX 00(xxxxxx)00'00" EAST, 38.58 FEET; THENCE
SOUTH 56(degree)07'48" EAST, 182.44 FEET TO A POINT OF CURVATURE; THENCE 83.07
FEET ALONG THE ARC OF A 358.00 FOOT RADIUS CURVE TO THE LEFT THROUGH A CENTRAL
ANGLE OF 13(degree)17'41" (THE LONG CHORD BEARS SOUTH 62(degree)46'39" EAST,
82.88 FEET); THENCE SOUTH 18(degree)51'00" WEST, 20.83 FEET TO A POINT OF
CURVATURE; THENCE 23.75 FEET ALONG THE ARC OF A 60.00 FOOT RADIUS CURVE TO THE
LEFT THROUGH A CENTRAL ANGLE OF 22(degree)40'34" (THE LONG CHORD BEARS SOUTH
07(degree)30'46" WEST, 23.59 FEET); THENCE SOUTH 03(degree)37'18" EAST, 76.10
FEET TO A POINT OF CURVATURE; THENCE 39.18 FEET ALONG THE ARC OF A 25.00 FOOT
RADIUS CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF 89(degree)47'49" (THE LONG
CHORD BEARS SOUTH 41(degree)16'35" WEST, 35.29 FEET); THENCE SOUTH
86(degree)10'30" WEST, 212.15 FEET; THENCE SOUTH 34(degree)03'05" WEST, 467.32
FEET; THENCE SOUTH 03(degree)49'30" EAST, 264.47 FEET; THENCE SOUTH
10(degree)12'41" WEST, 74.94 FEET; THENCE SOUTH 03(degree)49'30" EAST, 23.28
FEET; THENCE SOUTH 86(degree)10'30" WEST, 45.00 FEET TO A POINT OF CURVATURE;
THENCE 313.47 FEET ALONG THE ARC OF A 328.00 FOOT RADIUS CURVE TO THE RIGHT
THROUGH A CENTRAL ANGLE OF 54(degree)45'28" (THE LONG CHORD BEARS NORTH
66(degree)26'46" WEST, 301.68 FEET); THENCE NORTH 39(degree)04'02" WEST, 61.34
FEET; THENCE NORTH 04(degree)53'28" EAST, 27.77 FEET TO THE SOUTHEASTERLY RIGHT
OF WAY LINE OF SAID X.X. XXXXXXX ROAD; THENCE CONTINUING ON SAID RIGHT OF WAY
LINE, 483.82 FEET ALONG THE ARC OF A NONTANGENT 1507.00 FOOT RADIUS CURVE TO THE
LEFT THROUGH A CENTRAL ANGLE OF 18(degree)23'41" (THE LONG CHORD BEARS NORTH
39(degree)39'10" EAST, 481.74 FEET) TO THE POINT OF BEGINNING, CONTAINING
256,837 SQUARE FEET, OR 5.90 ACRES MORE OR LESS.
66
REFERENCE SURVEY- XXXX XX XXXXXX XXXX XXXXXX 0000, XXXXXXXXXX XXXXXX SURVEY
RECORDS.
67
EXHIBIT C
TO
CROSSROADS AT ORENCO STATION LEASE
SCOPE OF LANDLORD'S WORK
AND TENANT'S WORK
I. LANDLORD'S WORK
A. Design and Construction of Tenant's Building
1. Description of Landlord's Work. Landlord shall furnish all labor
and materials to construct and complete in a good, workmanlike manner the
Tenant's Building in a dry, "vanilla shell" condition including the following:
(i) interior walls - framed and sheetrocked; (ii) floors - hard troweled
concrete; (iii) ceilings - exposed framing and joist bay panels; (iv) doors and
windows, including doors for interior offices and bathrooms; (v) electrical,
service, panels, wall plugs, switches, j-boxes, overhead lights, and room
fluorescent ceiling fixtures; (vi) plumbing, water service with separate meter,
xxxxx, stub outs, under-slab vents, and fixtures for two bathrooms; (vii)
mechanical, HVAC packaged units, roof penetrations, gas piping, water heater,
and associated vents; (viii) fire protection, as required per code, including
emergency lighting, exit signs, smoke and heat detectors, and sprinkler system
with stub-outs into Tenant improvement areas. Landlord's work shall not include:
finishes, trade fixtures, generator and switching, low-voltage wiring,
communication equipment, security system, floor electrical, architectural
specialties, additional items described in Tenant's Plans, and any modification
or addition to Landlord's Work required as the result of Tenant's specific use
of Tenant's Building, all as described in the Final Plans (as hereinafter
defined) for the G.I. Joe's store ("Tenant's Store). Such work is hereinafter
referred to as "Landlord's Work". Landlord shall supervise and direct all
Landlord's Work. Landlord shall be solely responsible for all construction means
and methods, techniques, sequences and procedures, and for coordinating all
portions of the Landlord's Work. All Landlord's Work shall be performed in
accordance with the Lease to which this Exhibit C is attached.
2. Prototype Plans and Shell Plans. Landlord has previously received
Tenant's prototype plans and specifications for a typical G.I. Joe's store, and
Landlord provided Tenant with a Site Plan of the Shopping Center, and exterior
elevations and Shell Plans for Tenant's Store. Tenant hereby confirms that
Tenant has reviewed and approved the Shell Plans and elevations.
3. Final Plans. The Final Plans shall consist of the Shell Plans and
Improvement Plans including any modifications mutually agreed upon by Tenant and
Landlord. Final Plans shall be prepared by Landlord's architect and submitted to
Landlord
PAGE 1
68
and Tenant for approval. Landlord and Tenant shall each have five (5) business
days following receipt of the Final Plans to approve or disapprove the Final
Plans. Any disapproval by either Landlord or Tenant must be accompanied by a
specific description of the revisions that the disapproving party would require
in order to approve the Final Plans. Landlord's architect shall incorporate into
the Final Plans any suggested revisions received from Landlord or Tenant and
resubmit the Final Plans to both Landlord and Tenant for approval within five
(5) days following receipt of a notice of disapproval. Any site plan included in
the Final Plans shall conform generally to Exhibit "A" of this Lease. The Final
Plans shall include without limitation plans for grading, driveways, parking
areas, exterior elevations, and landscaping, as well as the Tenant's Store. The
Tenant's Store shall contain approximately the number of square feet as set
forth in this Lease. The Final Plans shall set forth the construction to be done
by each party, it being understood that trade fixtures, furnishings and
equipment, and other improvements provided in Tenant's Plans, shall be the
responsibility of the Tenant.
4. Approvals. Any disapproval or proposed revisions hereunder shall be
on reasonable grounds and supported by a detailed written statement thereof. An
untimely, unreasonable or unsupported disapproval or a failure to respond within
the time allowed shall be deemed an approval for all purposes hereof. Time is of
the essence hereof.
5. Within thirty (30) days after approval of the Final Plans, Landlord
shall select a general contractor who shall use commercially reasonable efforts
to obtain bids from at least three (3) subcontractors in each category of
Landlord's Work, all of which subcontractors shall be mutually acceptable to
Landlord and Tenant. Landlord's Work shall be performed by the lowest
responsible bidder. Landlord shall provide Tenant with copies of all bids for
Tenant's Building delivered by subcontractors.
6. Change Orders. Any changes to the Final Plans desired by Tenant
subsequent to the approval of such plans by both parties shall be requested in
writing. Landlord agrees to use its best efforts to incorporate plan changes
requested in writing by Tenant and to notify Tenant immediately of any cost
increase or potential delay caused by such changes. On the Delivery Date, Tenant
shall reimburse Landlord in cash for the net cost increase, if any, caused by
plan changes requested in writing by Tenant. If the net effect of Tenant's
changes is a cost savings, the Development Costs and Fixed Minimum Monthly Rent
shall be adjusted as set forth in Exhibit "F" of the Lease.
B. Design and Construction of Common Area
1. All Common Areas within the Core Area of the Shopping Center (as shown
on the Site Plan) shall be appropriately completed (including paving and
striping of parking areas, installation of light standards and landscapings,
etc.) in accordance with the ECR.
PAGE 2
69
C. General Provisions Concerning Landlord's Work.
If Tenant requests any changes or modifications to Landlord's Work, or if
Tenant requests that Landlord delay construction of any improvements to
accommodate Tenant's Work, Landlord shall advise Tenant in writing of the date
the Premises would otherwise be available for occupancy and Tenant's obligation
to pay Rent and all other sums due under the Lease shall commence on the earlier
of: (i) thirty (30) days after such date, notwithstanding that Tenant has not
opened for business and/or the Landlord's Work is not completed, or (ii) the
date on which Tenant first opens for business in the Premises.
Landlord's Work shall be deemed to be "substantially completed" on the date
that Landlord's architect certifies to Landlord in writing (the "Architect's
Certificate") that all work to be performed by Landlord pursuant to this Exhibit
C is substantially complete, except for punch list items and construction items
to be completed as part of the Shopping Center and/or part of the Premises that
would not prevent Tenant from performing Tenant's Work, installing fixtures and
equipment in the Premises, or opening for business in the Premises, and except
for any of Landlord's Work which cannot be feasibly performed before Tenant
completes Tenant's Work, fixturing, or decorating.
Landlord shall provide Tenant with a copy of the Architect's Certificate,
and Tenant shall have ten (10) days from receipt of such certificate within
which to arrange a joint inspection of the Premises with Landlord, at which time
a written punch list shall be prepared specifying those items of Landlord's
Work, if any, which have not been satisfactorily completed as agreed upon by
Landlord and Tenant based on such joint inspection (the "Punch List Work").
Landlord shall have thirty (30) days after receipt of the Punch List Work to
complete the Punch List Work, or a reasonable time thereafter if any item of
Punch List Work is of such a nature that it cannot be completed within such
thirty (30) day period, provided Landlord completes such items of Punch List
Work in good faith and with reasonable diligence.
Upon the last to occur of the substantial completion of the Premises or the
completion of the Punch List Work, Tenant shall conclusively be deemed to have
accepted the Premises in their then existing condition, and Tenant hereby waives
any right or claim arising out of the condition of the Premises, the
appurtenances thereto, or the improvements, or equivalent, therein, including
Landlord's Work, and Landlord shall not be liable for any latent or patent
defects therein.
Tenant shall make no changes, modifications, or alterations in Landlord's
Work without the prior written consent of Landlord. Tenant shall pay, prior to
the commencement of Landlord's Work, any additional charges, expenses, or costs,
including fees for architectural, engineering, or other similar services,
arising by reason of any changes, modifications, or alterations in Landlord's
Work made at the request of Tenant.
PAGE 3
70
II. TENANT'S WORK
A. Design and Construction of Tenant's Work.
1. Description of Work. Tenant shall furnish all labor and materials
to construct and complete in a good, workmanlike manner the work described in
Tenant's Plans (as hereinafter defined) for Tenant's Building. Such work is
hereinafter referred to as "Tenant's Work". Tenant shall supervise and direct
all Tenant's Work. Tenant shall be solely responsible for all construction means
and methods, techniques, sequences and procedures, and for coordinating all
portions of the Tenant's Work. All Tenant's Work shall be performed in
accordance with the Lease to which this Exhibit C is attached.
Upon delivery of possession of Tenant's Building, Tenant, at its own
expense, shall immediately proceed with due diligence to perform Tenant's Work
and install Tenant's personal property, trade fixtures, equipment, and
merchandise ("Tenant's Property") in Tenant's Building, all without interference
with other work, if any, being done in the Shopping Center. Tenant's Work, and
the installation of Tenant's Property, shall be performed in compliance with all
reasonable rules which Landlord, its architect,, and its contractors may make.
Tenant shall, upon final completion of Tenant's Work, furnish Landlord with
copies of all certificates and approvals relating to any work or installations
done by Tenant that may be required by any governmental authority or insurance
company. Landlord shall have no responsibility for any loss of or damage to any
of Tenant's Property so installed or left in Tenant's Building. Tenant's entry
shall be subject to all of the provisions of the Lease other than the payment of
Rent and other charges to Landlord; at all times after such entry, Tenant shall
maintain or cause to be maintained in effect insurance complying with the Lease.
2. Tenant's Plans. Tenant shall deliver to Landlord a set of plans and
specifications ("Tenant's Plans") for Tenant's Work. Tenant's Plans shall
include any modifications mutually agreed upon by Tenant and Landlord. Tenant's
Plans shall be prepared by Tenant's architect and submitted to Landlord for
approval. Landlord shall have ten (10) business days following receipt of
Tenant's Plans to approve or disapprove Tenant's Plans. Any disapproval by
Landlord must be accompanied by a specific description of the revisions that the
disapproving party would require in order to approve Tenant's Plans. Tenant's
architect shall incorporate into Tenant's Plans any suggested revisions received
from Landlord and resubmit Tenant's Plans to both Landlord and Tenant for
approval within five (5) days following receipt of a notice of disapproval.
Tenant's Plans shall include without limitation plans for all interior
improvements to Tenant's Building, including, but not limited to wall paints or
coverings, floor coverings, and any modification to the HVAC, electrical or
plumbing systems required as the result of Tenant's use of Tenant's Building.
Tenant's Plans shall include the description and general location of Tenant's
trade fixtures, furnishings and equipment.
PAGE 4
71
3. Approvals. Any disapproval or proposed revisions hereunder shall be
on reasonable grounds and supported by a detailed written statement thereof. An
untimely, unreasonable or unsupported disapproval or a failure to respond within
the time allowed shall be deemed an approval for all purposes hereof. Time is of
the essence hereof.
4. Change Orders. Any changes to Tenant's Plans desired by Tenant
subsequent to the approval of such plans by both parties shall be requested in
writing. Tenant agrees to use its best efforts to incorporate plan changes
requested in writing by Landlord and to notify Landlord immediately of any
potential delay caused by such changes.
B. General Provisions Concerning Tenant's Work.
Any roof penetrations made by Tenant or its contractors shall first be
approved by and then patched by Landlord's roofing contractor, and Tenant shall
reimburse to Landlord the cost thereof.
All of Tenant's Work shall be designed by a competent licensed architect
and shall be performed under the supervision of such architect by financially
sound and bondable contractors of good reputation in accordance with plans and
specifications approved in writing by Landlord before commencement of any work.
All contractors performing Tenant's Work shall be subject to Landlord's prior
approval, and Tenant shall not use any contractor not approved in writing by
Landlord. In connection with its consent, Landlord may require that any
contractor, or major subcontractors, provide payment and completion bonds in
such amounts and with sureties acceptable to Landlord. All work shall be
performed in a good and workmanlike manner, diligently prosecuted to completion,
and using new materials of good quality. Tenant shall notify Landlord at least
twenty (20) days prior to the commencement of any work, so that Landlord may
post, file, and/or record a notice of non-responsibility or other notice
required under applicable mechanics' lien laws. Upon completion of any work
hereunder, Tenant shall record in the Office of the Recorder of Washington
County, Oregon, a notice of completion or any other notice required or permitted
by applicable mechanics' lien laws to commence the running of, or terminate, any
period for the filing of liens or claims, and shall deliver to Landlord any
certificate of occupancy or other equivalent evidence of completion of such work
in accordance with the requirements of applicable law. Tenant's Work shall be
performed in compliance with all applicable laws, codes, rules, and regulations
of all governmental and quasi-governmental authorities with jurisdiction. All
contractors performing any such work shall maintain insurance which meets the
requirements of Section 6.1 of the Lease.
With respect to any work performed by or at the direction of Tenant, Tenant
shall pay, or cause to be paid, all sums, costs, and expenses due for, or
purporting to be due for, any work, labor, services, materials, supplies, or
equipment furnished, or claimed to be furnished, to or for Tenant and shall keep
Tenant's Building and the Shopping Center free of all mechanics', materialmen's
or other liens arising therefrom. Tenant may contest any such lien, if Tenant
first procures and posts, records, and/or files a bond or bonds issued by a
PAGE 5
72
financially sound, qualified corporate surety, in conformance with the
requirements of applicable law for the release of such lien from Tenant's
Building and/or Shopping Center. Tenant shall pay and fully discharge any
contested claim of lien within five (5) days after entry of final judgment
adverse to Tenant in any action or enforce or foreclose the same;
notwithstanding any such contest, Landlord shall have the absolute right at any
time to pay any lien imposed hereunder if in Landlord's reasonable good faith
judgment such payment is necessary to avoid the forfeiture, involuntary sale or
loss of any interest of Landlord or any other tenant or owner in the Shopping
Center, or any portion thereof. Tenant shall indemnify, defend, protect, and
hold Landlord harmless of and from any and all loss, cost, liability, damage,
injury, or expense (including attorneys' fees) arising out of or in connection
with claims or liens for work, labor, services, materials, supplies, or
equipment furnished or claimed to be furnished to or for Tenant in, upon, or
about Tenant's Building or the Shopping Center.
PAGE 6
73
EXHIBIT D
TO
CROSSROADS AT ORENCO STATION LEASE
FORM OF CERTIFICATE
[Date]
PacTrust
Attn: General Counsel/COS-02
00000 X.X. Xxxxxxx Xxxx., #000
Xxxxxxxx, XX 00000
Gentlemen:
Re: Xxxx XXX-00, Xxxxxxxxxx Xxxxxxxx Xxxxxx at Orenco Station Hillsboro, Oregon
(the "Premises")
On or about __________, 199__, G.I. Joe's, Inc., an Oregon corporation, dba
"G.I. Joe's," as Tenant, and Pacific Realty Associates, L.P., a Delaware limited
partnership, as Landlord, entered into a Lease for the Premises.
Section 3.2 of the Lease requires that within fifteen (15) days following
the Term Commencement Date as defined therein, Tenant shall deliver a
certificate to Landlord confirming certain matters.
Therefore, by execution of this letter, Tenant confirms the following
facts:
1. That the Term Commencement Date is _________, 199__, that Tenant has
accepted the Premises and that the Premises are in the condition required by the
Lease;
2. That the Original Term of the at midnight on ________, 19__; and
3. That the payment of Rent commenced or, pursuant to the Lease, will
commence on ___________, 199__.
Very truly yours,
G.I. JOE'S, INC.,
an Oregon corporation
By:___________________________________________
Its:__________________________________________
By:___________________________________________
Its:__________________________________________
PAGE 1
74
EXHIBIT E
TO
CROSSROADS AT ORENCO STATION LEASE
RULES AND REGULATIONS
The following Rules and Regulations shall remain in full force and effect
until Tenant is notified in writing by Landlord of any changes or amendments to
the Rules and Regulations.
(1) Landlord's employees or agents shall not perform any work or do
anything outside of their regular duties for Tenant, unless under special
instructions from Landlord.
(2) All loading and unloading of goods, merchandise, supplies, and all
other items used, held, or stored by Tenant in connection with the Premises
shall be done only through the rear door of the Premises.
(3) No aerial or satellite dishes or antennas shall be erected on the roof
or exterior walls of the Premises or the Building of which the Premises are a
part without Landlord's consent not to be unreasonably withheld.
(4) Landlord reserves the right to require Tenant to discontinue any
display or demonstration in or from the Premises which, in Landlord's sole
opinion, interferes with the use of the public passageways of the Shopping
Center or constitutes a nuisance or an unhealthy or unsafe condition.
(5) Tenant shall at all times maintain an adequate number of suitable fire
extinguishers in good working order in the Premises for use in case of local
fires, including electrical or chemical fires.
(6) Tenant shall immediately notify Landlord of any breakage, injury, fire,
or disorder which comes to its attention which occurs in or about the Premises
or any of the Common Areas.
(7) Tenant shall not cause or permit any unusual or objectionable odors to
be produced or emanate from the Premises.
(8) Tenant shall not permit the use in the Premises of any device or
instrument, such as a sound reproduction system, television sets, phonographs or
radios or excessively bright, changing, flashing, flickering, moving or neon
lights, or other lighting devices or any similar devices, intended to be audible
or visible beyond the confines of the Premises, nor shall Tenant permit any act
or thing upon the Premises disturbing to normal sensibilities or other tenants
in the Shopping Center.
PAGE 1
75
(9) Tenant shall not, at any time, place any security gate or grille in
front of the entrance doors or storefront of the Premises.
(10) Canvassing, soliciting, and peddling in the Shopping Center is
prohibited, and Tenant shall not encourage same. Tenant shall not solicit
business in the parking area or other Common Areas, or distribute handbills or
other advertising matter in or upon automobiles parked in the Shopping Center,
provided that the foregoing shall not prohibit Tenant from using direct mail
solicitation or advertising in the regular communications media.
(11) Landlord reserves the right to exclude from the Shopping Center at any
time disorderly persons and any person who does not have sufficient reason for
being on or about the Shopping Center. If requested in writing by Landlord,
Tenant shall promptly furnish to Landlord an up-to-date list of Tenant's
employees and give reasonable advance notice to Landlord of invitees expected
outside of regular business hours.
(12) Employees of Landlord are prohibited from receiving any packages or
other articles delivered to the Shopping Center for Tenant and, should any such
employee receive any such package or article, he or she in so doing shall be the
agent of Tenant and not Landlord.
(13) Tenant shall insure that all entrance doors in the Premises shall be
locked when the Premises are not in use.
(14) Landlord shall not be responsible to Tenant for the non-observance or
violation of any of these Rules and Regulations at any time by any other tenant
of the Shopping Center.
(15) Tenant shall furnish and install all light bulbs for the Premises.
(16) Tenant and Tenant's employees shall park their cars only in those
portions of the parking areas which may be designated for that purpose by
Landlord from time to time. If requested in writing by Landlord, Tenant shall
promptly furnish Landlord with the automobile license numbers of the automobiles
used by Tenant and Tenant's employees and shall require its employees to place a
sticker on their vehicles indicating their right to park in the parking area if
such stickers are provided by Landlord. Tenant hereby authorizes Landlord to
remove or cause to be removed from the Shopping Center any of Tenant's car or
cars belonging to Tenant's employees which are not parked in designated areas.
Any such removal shall be at Tenant's sole cost and expense. Tenant hereby
waives and releases Landlord and hereby indemnifies and agrees to hold Landlord
harmless from all claims, liabilities, costs, and expenses which may result or
arise from such unauthorized parking.
(17) Tenant shall not place, hang, tape, install, or otherwise affix any
paper or other signage in or on the glass doors, show windows, or other
storefront areas of the Premises
PAGE 2
76
unless previously approved by Landlord, which approval shall not be unreasonably
withheld.
(18) Landlord may, upon written request by Tenant, waive the compliance by
Tenant of any of the foregoing Rules and Regulations, provided that (i) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent, (ii) any such waiver shall not relieve Tenant from the obligation to
comply with such Rule or Regulation in the future unless expressly consented to
by Landlord, and (iii) no waiver granted to Tenant shall relieve any other
tenant from the obligation of complying with the foregoing Rules and
Regulations, unless such other tenant has received a similar waiver in writing
from Landlord.
(19) The term "Tenant" as used herein shall also mean, in addition to the
Tenant under the Lease, any sublessee, assignee, agent, servant, contractor,
employee, invitee, or licensee of Tenant. All said parties are subject to
compliance with these Rules and Regulations.
PAGE 3
77
EXHIBIT F
TO
CROSSROADS AT ORENCO STATION LEASE
DETERMINATION OF FIXED MINIMUM MONTHLY RENT
1. Determination of Fixed Minimum Monthly Rent based on Cost of Development.
1.1 The Fixed Minimum Monthly Rent for the first sixty (60) months of the
Original Term shall be the sum of (i) eleven percent (11%) of the value of the
land on which the Premises is located, (ii) eleven percent (11 %) of the actual
Development Costs for the Premises and all improvements thereon (as defined
below) and (iii) the sum of (A) Tenant's Proportionate Share of the cost of the
real property dedicated by Landlord as Usable Open Space at Six Dollars ($6.00)
per square foot and (B) all costs incurred by Landlord in the development and
landscaping of such Usable Open Space, less Tenant's Share of Development Costs,
as hereinafter defined. The Fixed Minimum Monthly Rent is based upon the
assumption that the foregoing costs will be as follows:
1.1.1 Land value (including Usable Open Space) of $1,389,024.00 based
on a rate of $6.00 per square foot for the Premises Parcel [231,504 square
feet]; and
1.1.2 Development Costs of $4,452,366.00.
As used herein, "Development Costs" shall include the following:
architectural and engineering fees, soil testing, surveys, site work, pro rata
share of off-site improvement costs per Addendum No. 1 to this Exhibit F,
construction costs for Landlord's Work (including costs of developing and
landscaping the Usable Open Space), permits, construction period interest at
nine percent (9%) per annum through the Term Commencement Date, taxes and
insurance, any other reasonable costs directly related thereto, and any real
estate commissions paid in procuring this Lease.
1.2. If the chosen bid for construction of Landlord's Work causes
Development Costs to exceed Four Million Four Hundred Fifty-Two Thousand Three
Hundred Sixty-Six Dollars ($4,452,366.00) (including Landlord's most current
good faith estimate of other outstanding items to be included as Development
Costs), Tenant shall have the right to cancel this Lease by giving written
notice to Landlord within fifteen (15) days after the date of Landlord's receipt
and delivery of same to Tenant of the last bids for Landlord's Work. If Tenant
does not timely cancel this Lease, then Tenant shall be deemed to have elected
to continue this Lease in effect at the increased rental rate determined in
Section 1.5 below to reflect the increased Development Costs. Tenant's right of
cancellation shall be subject to Landlord's right within fifteen (15) days after
receipt of any such notice of written cancellation from the Tenant to elect, by
written notice to Tenant, to assume and pay the
PAGE 1
78
additional Development Costs in excess of Four Million Four Hundred Fifty-Two
Thousand Three Hundred Sixty-Six Dollars ($4,452,366.00) in which case Tenant's
notice of cancellation shall be automatically voided and this Lease shall
continue in full force and effect, but the Fixed Minimum Monthly Rent shall be
based upon Development Costs of Three Million Nine Hundred Fifty-Two Thousand
Three Hundred Sixty-Six Dollars ($3,952,366.00) instead of the actual
Development Costs.
1.3. If after a bid is chosen for construction of Landlord's Work, Landlord
requests a change order, the monetary cost of which results in Development Costs
exceeding Four Million Four Hundred Fifty-Two Thousand Three Hundred Sixty-Six
Dollars ($4,452,366.00) the Fixed Minimum Monthly Rent shall not be increased
pursuant to Section 1.4 below to reflect the increased Development Costs as a
result of such change order unless Landlord has obtained Tenant's prior written
consent to such change order. Prior to approving any necessary change order (as
determined by Landlord in its reasonable discretion), the monetary cost of which
will increase Development Costs by more than $5,000, on the Building or $15,000
on Common Area, Landlord shall use its best efforts to notify (by telephone or
fax) Tenant's construction representative (who will be designated by Tenant
prior to commencement of construction) of such change order. If Tenant's
construction representative notifies Landlord of an objection to the change
order and, provided the construction schedule is not delayed, Landlord will
negotiate in good faith with Tenant to resolve Tenant's objection. Prior to
approving any change order which is not a necessary change order, if the
monetary cost of such change order will increase Development Costs by more than
$5,000, on the Building or $15,000 on Common Area, Landlord shall not consent to
such change order unless Landlord has obtained Tenant's prior written consent to
such change order which Tenant shall not unreasonably withhold.
1.4 Should the actual Development Costs be less than or exceed Four Million
Four Hundred Fifty-Two Thousand Three Hundred Sixty-Six Dollars ($4,452,366.00)
but subject to Sections 1.2 and 1.3 regarding responsibility for increases in
the actual Development Costs, then the parties shall enter into a lease
modification agreement decreasing or increasing the annual Fixed Minimum Monthly
Rent set for Lease Years 1-5 by an amount equal to eleven percent (11%)
multiplied by the difference between the actual Development Costs and Four
Million Four Hundred Fifty-Two Thousand Three Hundred Sixty-Six Dollars
($4,452,366.00) (and the annual Fixed Minimum Monthly Rent for Lease Years 6-10
and Lease Years 11-15 shall be similarly adjusted to maintain a ten percent
(10%) increase in Fixed Minimum Monthly Rent from Lease Years 1-5 to Lease Years
6-10 and from Lease Years 6-10 to Lease Years 11-15);
1.5 Notwithstanding the foregoing, Tenant's Fixed Minimum Monthly Rent
shall not exceed Forty Eight Thousand Nine Hundred Sixty-Three Dollars
($48,963.00) per month unless Landlord and Tenant agreed upon a higher rent
after the preconstruction bids were completed.
PAGE 2
79
2. Payment of Tenant's Share of Development Costs.
Tenant agrees that within thirty (30) days of receipt from Landlord of
written notice that Landlord has completed at least fifty percent (50%) of
Landlord's Work, which notice shall be accompanied by the certificate of
Landlord's architect certifying such completion and an accounting and
itemization of such portion of Landlord's Work, Tenant shall deliver to Landlord
by wire transfer the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) as
Tenant's contribution to the Development Costs. Within thirty (30) days of
receipt by Tenant of Landlord's notice certifying that Landlord has
substantially completed all of Landlord's Work, which notice shall be
accompanied by the certificate of Landlord's architect confirming such
completion and an accounting and itemization of such portion of Landlord's Work,
Landlord shall provide Tenant with Landlord's calculation of the Fixed Minimum
Monthly Rent in accordance with Paragraph 1.1 above and Tenant shall deliver to
Landlord by wire transfer the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) which shall be Tenant's final payment of its contribution to the
Development Costs. Any breach of the requirement to pay Tenant's contribution to
the Development Costs as set forth in this Paragraph 2 shall be deemed a breach
of the Lease to which this Exhibit F is attached and shall entitle Landlord to
exercise any and all remedies as set forth in said Lease.
