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EXHIBIT 10.2
LEASE BETWEEN:
Lessor:
Milestone Properties, Inc.,
a Delaware corporation
and
Lessee:
G.I. Joe's, Inc.
an Oregon corporation
May 16, 1997
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ARTICLE I
DEMISED PREMISES
Section 1.01 - Demised Premises ...............................................1
Section 1.02 - Use of Additional Areas ........................................1
ARTICLE II
TERM
Section 2.01 - Commencement Date ..............................................1
Section 2.02 - Length of Term .................................................1
Section 2.03 - Lease Year .....................................................2
ARTICLE III
RENT
Section 3.01 - Payment of Rent ................................................2
Section 3.02 - Fixed Minimum Rent .............................................2
Section 3.03 - Percentage Rent ................................................2
Section 3.04 - Gross Sales ....................................................3
ARTICLE IV
RECORDS AND ACCOUNTING
Section 4.01 - Records ........................................................4
Section 4.02 - Statements by Lessee ...........................................4
Section 4.03 - Audit ..........................................................5
Section 4.04 - Failure to Furnish Statements ..................................5
ARTICLE V
IMPROVEMENTS
Section 5.01 - Improvements by Lessor .........................................6
Section 5.02 - Improvements by Lessee .........................................6
Section 5.03 - Description ....................................................6
Section 5.04 - Installation of Fixtures .......................................6
Section 5.05 - Parking Areas ..................................................6
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ARTICLE VI
COMMON AREAS AND OPERATING COSTS
Section 6.01 - Common Areas: ..................................................7
Section 6.02 - Operating Costs ................................................8
ARTICLE VII
MERCHANT'S ASSOCIATION OR MARKETING FUND
Section 7.01 - Merchant's Association ........................................11
Section 7.02 - Marketing Fund ................................................11
ARTICLE VIII
CONDUCT OF BUSINESS BY LESSEE
Section 8.01 - Use of Demised Premises........................................11
Section 8.02 - Restrictions on Use ...........................................12
Section 8.03 - Restrictions on Lessor ........................................12
ARTICLE IX
MAINTENANCE AND REPAIRS
Section 9.01 - Maintenance by Lessee .........................................12
Section 9.02 - Maintenance by Lessor .........................................12
Section 9.03 - Alterations ...................................................13
Section 9.04 - Waiver Claims .................................................13
Section 9.05 - Lessor's Right to Inspect .....................................14
Section 9.06 - Cleanliness and Waste .........................................14
ARTICLE X
INSURANCE
Section 10.01 - Insurance by Lessee ..........................................14
Section 10.02 - Insurance by Lessor ..........................................15
Section 10.03 - Indemnity for Accidents ......................................15
Section 10.04 - Destruction by Fire or Casualty...............................16
Section 10.05 - Dram Shop Liability ..........................................16
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ARTICLE XI
TITLE
Section 11.01 - Possession by Lessee .........................................17
Section 11.02 - Sublease .....................................................17
Section 11.03 - Mortgages by Lessor ..........................................18
Section 11.04 - Surrender of Premises ........................................18
Section 11.05 - Eminent Domain ...............................................19
Section 11.06 - Attornment ...................................................19
ARTICLE XII
SIGNS, LIGHTING, AND UTILITIES
Section 12.01 - Signs ........................................................20
Section 12.02 - Lighting .....................................................20
Section 12.03 - Utilities and Services .......................................20
ARTICLE XIII
DEFAULT
Section 13.01 - Default by Lessee ............................................21
Section 13.02 - Lien of Lessor for Rent, Taxes, and Other Sums ...............23
Section 13.03 - Default by Lessor ............................................25
ARTICLE XIV
TAXES
Section 14.01 - Real Estate Taxes.............................................25
Section 14.02 - Personal Property Taxes and Assessments ......................27
ARTICLE XV
MISCELLANEOUS
Section 15.01 - Notices ......................................................28
Section 15.02 - Waiver .......................................................28
Section 15.03 - Relationship of Parties ......................................28
Section 15.04 - Governing Law ................................................28
Section 15.05 - Savings Clause ...............................................28
Section 15.06 - Marginal Headings ............................................28
Section 15.07 - Covenant to Bind Successors ..................................29
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Section 15.08 - Credit Reports ...............................................29
Section 15.09 - Letter of Estoppel ...........................................29
Section 15.10 - Exculpation ..................................................29
Section 15.11 - Force Majeure ................................................29
Section 15.12 - Entire Agreement .............................................29
Section 15.13 - Negotiation and Execution ....................................30
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ATTACHMENTS
RIDER I
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - SITE PLAN
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LEASE
THIS LEASE, made and entered into this 3rd day of June, 1997 by and between
Milestone Properties, Inc., a Delaware corporation (hereinafter referred to as
"Lessor"), and G. I. Joe's, Inc. a(n) Oregon corporation (hereinafter referred
to as "Lessee");
WITNESSETH: THAT
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of Lessee to be observed and performed, the
Lessor demises and leases to the Lessee, and Lessee takes, accepts and rents
from Lessor, the premises hereinafter described, for the period, at the rental,
and upon the terms and conditions hereinafter set forth.
ARTICLE I
DEMISED PREMISES
Section 1.01 - Demised Premises: The Lessor demises and leases to the
Lessee, and the Lessee rents from Lessor, those certain premises, now erected in
the City of Bend, County of Deschutes, and State of Oregon, which Demised
Premises consist of a store space containing an area of approximately
thirty-four thousand nine hundred sixty-four (34,964) square feet of floor area,
herein referred to as the "Demised Premises".
Section 1.02 - Use of Additional Areas: The use and occupancy by the Lessee
of the Demised Premises shall include the use in common with others entitled
thereto of the common areas, and other facilities as may be designated from time
to time by the Lessor, subject, however, to the terms and conditions of this
agreement, and to reasonable rules and regulations for the use thereof, as
prescribed from time to time by the Lessor.
ARTICLE II
TERM
Section 2.01 - Commencement Date: The term of this Lease shall commence on
February 1, 1998.
Section 2.02 - Length of Term: The term of this Lease shall commence on the
Commencement Day and end on January 31, 2018 unless otherwise terminated or
extended as provided herein.
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Section 2.03 - Lease Year: The term "Lease Year", as used herein, shall
mean the period beginning with the commencement of the term of this Lease as
hereinbefore determined in Section 2.01, and ending on January 31 and each
successive twelve (12) month period thereafter or during the term of this Lease.
ARTICLE III
RENT
Section 3.01 - Payment of Rent: Lessee hereby covenants and agrees to pay
rent, to Lessor, which said rent shall be in the form of "Fixed Minimum Rent",
"Percentage Rent" and "Additional Rent" as hereinafter provided. The payment of
said Fixed Minimum Rent shall begin on the Commencement Date, and thereafter the
Fixed Minimum Rent shall be paid in equal monthly installments on the first day
of each and every month in advance. Said Rent shall be paid to the office of the
Lessor at, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at
such other place as may be designated in writing from time to time by Lessor.
Section 3.02 - Fixed Minimum Rent:
A. Lessee shall pay to Lessor for each and every Lease Year of the leased
term, without any prior demand therefore, and without any deduction or setoff
whatsoever, a Fixed Minimum Rent of two hundred fifteen thousand five hundred
dollars & 00/100 ($215,500.00), payable in equal monthly installments of
seventeen thousand nine hundred fifty-eight dollars & 33/100 ($17,958.33), in
advance on the first day of each and every calendar month, as provided in
Section 3.01 hereof.
B. Late fee: Any payment not received by Lessor by the tenth (10th) day of
the month shall be considered in arrears and in default of the terms hereof and
shall be subject to an applicable late charge in the amount of $500.00 and
$150.00 every fifth (5th) day thereafter, which Lessee agrees to pay along with
the late rent in the form of a cashier's check, certified check or money order.
C. Returned Checks: In the event that Lessee's check is returned for any
reason, Lessee agrees to pay Lessor $250.00 as a handling charge in addition to
any applicable late charge. Returned checks must be redeemed by cashier's check
or money order. In the event that more than one (1) check is returned, Lessee
agrees to pay all subsequent rents and charges by cashier's check, certified
check or money order.
Section 3.03 - Percentage Rent:
A. In addition to the payment of the Fixed Minimum Rent, as hereinbefore
provided, Lessee shall pay to Lessor, in the manner, and upon the conditions,
and at the time hereinafter set forth, during each year of the term hereof, as
additional rent, a
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sum equivalent to the amount, if any, determined by multiplying one and one-half
percent (1.5%) by the gross annual sales, as hereinafter defined, from all
business done on and from the premises, in excess of seven million two hundred
seventy thousand dollars & 00/100 ($7,270,000.00) ("Break Point"). Said
Percentage Rent shall be paid without any prior demand therefore, and without
any setoff or deduction whatsoever.
B. The said Percentage Rent shall become due and payable on or before
thirty (30) days after the close of each and every month commencing with the
month in any Lease Year when Lessee first becomes obligated to pay Percentage
Rent.
C. In the event that the Lessee is actually engaged in business prior to
the commencement of the term, then the period prior to the commencement of the
term when the Lessee is actually engaged in business (which shall not exceed one
[1] month) shall be added to and included in the first Lease Year of this term,
it being the intention of the parties that Percentage Rent shall be paid on all
gross sales in excess of the specified amounts, whether made from the Demised
Premises prior to or during the first Lease Year. If in any Lease Year, Lessee
is actually engaged in business for less than a full Lease Year, the Percentage
Rent Break Point shall be reduced proportionately. If Fixed Minimum Rent for any
Lease Year should be reduced or abated or if Lessee discontinues its business
operations for more than ten (10) continuous days, the Break Point shall
likewise be reduced proportionately.
Section 3.04 - Gross Sales: The term "Gross Sales" as used herein is hereby
defined to mean Gross Sales of Lessee, from all business conducted upon or from
the Demised Premises, and whether such business be conducted by Lessee or by any
licensees, concessionaires or sublessees of Lessee, and whether such sales be
evidenced by check, credit, charge account, exchange or otherwise, and shall
include, but not be limited to, the amount received from the sale of goods,
wares and merchandise and for services performed on or at the Demised Premises
together with the amount of all orders taken or received at the Demised
Premises, whether such order be filled from the Demised Premises or elsewhere,
and whether such sales be made by means of merchandise or other vending devices
in the Demised Premises, or sidewalk sales from outside the Demised Premises. If
any one (1) or more departments or other divisions of the Lessee's business
shall be sublet by Lessee or conducted by any person, firm or corporation other
than Lessee, then there shall be included in Gross Sales for the purpose of
fixing the Percentage Rent payable hereunder all the Gross Sales of such
departments or divisions, the same manner and with the same effect as if the
business or sales of such departments and divisions of Lessee's business had
been conducted by Lessee itself. Gross Sales shall not include sales of
merchandise for which cash has been refunded, or allowances made on merchandise
claims to be defective or unsatisfactory provided they shall have been included
in Gross Sales; and there shall be deducted from Gross Sales the price of
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merchandise returned by customers for exchange, provided that the sales price of
merchandise delivered to the customer in exchange shall be included in Gross
Sales. Gross receipts shall not include the amount of any sales, use or gross
receipts tax imposed by any federal, state, municipal or governmental authority
directly on sales and collected from customers, provided that the amount thereof
is added to the selling price or absorbed therein, and paid by Lessee to such
governmental authority. No franchise or capital stock tax and no income tax or
similar tax based upon income or profits as such shall be deducted from gross
receipts, in any event whatsoever.
ARTICLE IV
RECORDS AND ACCOUNTING
Section 4.01 - Records: For the purpose of ascertaining the amount payable
as rent, Lessee agrees to prepare and keep on the Demised Premises or corporate
headquarters for a period of not less than three (3) years, following the end of
each Lease Year, adequate records which shall show inventories and receipts of
merchandise at the Demised Premises, and daily receipts from all sales and other
transactions on the Demised Premises or corporate headquarters by Lessee and any
other persons conducting any business upon said premises. Adequate records shall
include, without limitation, cash receipts and/or sales journals; general
ledgers; sales tax returns; federal, state, and local income tax returns;
financial statements; and cash register tapes. Lessee shall record at the time
of sale, in the presence of the customer all receipts from sales or other
transactions whether for cash or credit in a cash register or in cash registers
having a cumulative total which shall be sealed in a manner approved by Lessor.
Lessee further agrees to keep on the Demised Premises or corporate headquarter
for at lease three (3) years following the end of each Lease Year all pertinent
original sales records.
Section 4.02 - Statements by Lessee: Lessee shall submit to Lessor on or
before the fifteenth (15th) day following each one (1) month period during the
term hereof (including the fifteenth (15th) day of the month following the end
of the term) at the place then fixed for the payment of rent, together with the
remittance of monthly Percentage Rent, a written statement signed by Lessee, and
certified by it to be true and correct, showing in
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reasonably accurate detail the amount of Gross Sales for each month during the
preceding one (1) month and fractional month, if any, prior to the commencement
of the term of this Lease. Such statement shall be accompanied by a facsimile
copy of Lessee's quarterly or monthly state sales tax report where applicable.
Lessee shall submit to the Lessor on or before the thirtieth (30) day following
the end of each Lease Year at the place then fixed for the payment of rent a
written statement signed by Lessee and certified to be true and correct, showing
in reasonably accurate detail the amount of Gross Sales during the preceding
Lease Year, and duly certified to Lessee by an independent public accountant.
The statements referred to herein shall be in such form and style acceptable to
Lessor and showing in reasonable detail the elements and amounts of Gross Sales
during the preceding monthly period, or fraction thereof. If such statement
shows Gross Sales to be other than as previously reported, Lessee and Lessor
shall make appropriate adjustments.
Section 4.03 - Audit: The acceptance by the Lessor of payments of
Percentage Rent shall be without prejudice to the Lessor's right to an
examination of the Lessee's books and records of its Gross Sales and inventories
of merchandise on the Demised Premises in order to verify the amount of annual
gross receipts received by the Lessee in and from the Demised Premises. At its
option, Lessor may cause, at any reasonable time, upon fifteen (15) days prior
written notice to the Lessee, a complete audit to be made of the Lessee's
business affairs and records relating to the Demised Premises for a period
covered by any statement issued by the Lessee as set forth in Section 4.02
hereof. Lessor shall have the right within three (3) years from the date of
delivery of such statement to Lessor to have an accountant selected by the
Lessor commence a special audit at the end of such fifteen (15) day written
notice. If such audit shall disclose an underreporting of Gross Sales of greater
than three percent (3%) of Gross Sales, whether or not Percentage Rent is due,
Lessee shall pay the cost of the audit. If such audit shall disclose a liability
for rent in excess of two percent (2%) of the rentals theretofore computed and
paid by Lessee, Lessee shall promptly pay to the Lessor the cost of the audit,
in addition to the deficiency. In addition, Lessor shall have the further remedy
of terminating the term of this Lease upon thirty (30) days written notice to
Lessee. In the event there is no deficiency disclosed as a result of the special
audit, the cost thereof shall be paid by the Lessor. It is further agreed that
such special audit as may be performed by an accountant elected by the Lessor
shall be conclusive and binding upon the parties.
Section 4.04 - Failure to Furnish Statements: If Lessee shall fail to
prepare and deliver within the time hereinabove specified any statement of Gross
Sales or if Lessee fails to maintain and/or furnish books and records required
hereunder, Lessor may elect to treat Lessee's said failure as a breach of this
Lease, entitling Lessor to terminate the term of this Lease or Lessee's right to
possession of the Demised Premises, or both, but only after Lessor has given to
the Lessee twenty (20) days notice in writing to submit said statement. If
Lessee fails to prepare and deliver said statement, or if Lessee fails to
maintain and/or furnish books and records after receiving said twenty (20) days
notice, Lessor may also, or in the alternative, elect to make an audit of all
book and records of Lessee, including Lessee's bank accounts, which in any way
pertain to or show Gross Sales, and to prepare or construct the statements or
records which Lessee has failed to prepare and deliver. Such audit shall be made
and the statements or records shall be prepared by an accountant selected by
Lessor, and shall be conclusive on Lessee. The Lessee shall pay on demand all
expenses of such audit and of the preparation or construction of any such
statements or records and all sums as may be shown by such audit to be due as
Percentage Rent.
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ARTICLE V
IMPROVEMENTS
Section 5.01 - Improvements by Lessor: Lessor shall not be responsible for
any improvements to the Demised Premises. Lessee takes the Demised Premises in
an "as is" condition, subject to those items set forth on Rider I.
Section 5.02 - Improvements by Lessee: Except as set forth on Rider I,
Lessee, at its own cost and expense, shall be responsible for all improvements
to the Demised Premises. Providing, however, before any such improvements are
made, Lessee shall submit its plans, drawings and specifications to Lessor for
Lessor's approval which approval shall not be unreasonably withheld. All bills
shall be paid for in full, and Lessee does hereby indemnify and hold harmless
Lessor from any liens, claims or demands. If any liens are placed against the
Demised Premises or the Shopping Center itself, Lessee shall be responsible for
clearing all such liens immediately, and, to the extent Lessor incurs any
expenses (including attorney fees), Lessee shall be responsible for
reimbursement.
Section 5.03 - Description: The Shopping Center is commonly known as the
Mountain View Mall. The legal description, if any, is shown on attached Exhibit
"A", and the boundaries and location of the Demised Premises are outlined in
"red" on the site plan marked Exhibit "B". The purpose of Exhibit "B" attached
hereto is to show the approximate location of the Demised Premises. The Lessor
reserves the right, at any time, to relocate the various lessees at the expense
of Lessor. The Lessor also reserves the right raze the existing buildings, add
to existing buildings or add additional buildings, and alter automobile parking
areas from that which is shown on Exhibit "B", provided such renovations do not
unreasonably impact Lessee's day to day business operation.
Section 5.04 - Installation of Fixtures: Lessee may enter upon the Demised
Premises for the purpose of installing trade fixtures and furnishings, provided,
however, such activity on the part of the Lessee shall be done only in such
manner as not to interfere with the normal operations of the Shopping Center or
any work being done by Lessor and that Lessor shall not be liable for damage to
or loss of such fixtures, equipment or furnishings. Any equipment or work done
which the Lessor installs or constructs in the Demised Premises on the Lessee's
behalf shall be paid for by the Lessee before such work, as outlined above, is
performed by the Lessor. All such additional work shall be billed to Lessee, in
advance, at Lessor's cost. It is mutually agreed that all work requested by the
Lessee shall be subject to the approval of Lessor's architect, mechanical and
electrical engineers.
Section 5.05 - Parking Areas: Lessor shall, at its own expense, maintain at
all times during the term of this Lease, the parking area on that portion of the
premises on
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which the Shopping Center is erected, and designated as "parking area" on the
site plan hereto attached and marked Exhibit "B" attached hereto and made a part
hereof. Said parking common area, which may be enlarged, altered or reduced,
from time to time, shall be for the joint use of all lessees of the Lessor in
the Shopping Center and for the use of the customers, employees, visitors, and
invitees of said lessees for driveway, walkway, or parking purposes. The parking
area shall be kept in reasonable order and repair and reasonably free from snow,
ice, and obstructions by the Lessor. All work or improvements made herein shall
be undertaken by Lessor so as not to unreasonably impact Lessee's day to day
business operations.
ARTICLE VI
COMMON AREAS AND OPERATING COSTS
Section 6.01 - Common Areas: All common areas and other common facilities
(hereinafter collectively called "common areas") made available by Lessor in,
on, over or about the Shopping Center shall be subject to the exclusive control
and management of Lessor, expressly reserving to Lessor, without limitation, the
right to erect, install, lease and remove within the malls or the parking areas,
kiosks, planters, pools, sculpture, free-standing buildings, additional
buildings, additional stories to buildings or otherwise, wherever and howsoever
located, provided all work or improvements hereunder shall be undertaken so as
not to unreasonably impact Lessee's day to day business operations. Common areas
(as initially constructed or as the same may be enlarged or reduced at any time
thereafter) shall mean all areas, space, facilities, equipment, signs and
special services from time to time made available by Lessor for the common and
joint use and benefit of Lessor, Lessee and other lessees and occupants of the
Shopping Center and their respective employees, agents, sublessees,
concessionaires, licensees, customers and invitees, which may include (but shall
not be deemed a representation as to their availability) the sidewalks, parking
areas, (including employee parking areas), access roads, driveways, landscaped
areas, truck serviceways, tunnels, loading docks, pedestrian malls (enclosed or
open), courts, stairs, ramps, elevators, escalators, comfort and first aid
stations, public washrooms, community hall or auditorium and parcel pick-up
stations. Lessor hereby expressly reserves the right from time to time, to
construct, maintain, operate and remove lighting and other facilities, equipment
and signs on all or any of the common areas; to police the same; to change the
area, level, location and arrangement of the parking areas and other facilities
forming a part of said common areas; to build multi-story parking facilities; to
restrict parking by Lessees an other occupants of the Shopping Center and their
employees, agents, sublessees, concessionaires and licensees; to enforce parking
charges (by operation of meters or otherwise), but in such event the net
proceeds from such charges (except for proceeds from multi-story parking
facilities), after deducting the cost of enforcing the same or charges thereon
by governmental authority, shall be applied in reduction of the cost of
maintaining the common areas; to close temporarily all or any portion of the
common
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areas for the purpose of making repairs or changes thereof and to discourage
non-customer parking; to establish, modify and enforce reasonable rules and
regulations with respect to the common areas and the use to be made thereof; and
to grant individual lessees and others the right to conduct sales in the common
areas. Lessor may operate, manage, equip, light and maintain the common areas in
such manner as Lessor may from time to time determine, and Lessor shall have the
right and exclusive authority to employ and discharge all personnel with respect
thereto. Lessee is hereby given a non-exclusive license to use during the Term
the common areas of the Shopping Center if and as they may now or at any time
during the Term exist, provided, however, that if the size, location or
arrangement of such common areas or the type of facilities at any time forming a
part thereof be changed or diminished, Lessor shall not be subject to any
liability therefor, nor shall Lessee be entitled to any compensation or
diminution or abatement of rent therefor, nor shall such change or diminution of
such areas be deemed a constructive or actual eviction. Lessor reserves the
right to grant to third persons the non-exclusive right to cross over and use in
common with Lessor and all Lessees of the Shopping Center the common areas as
designated from time to time by Lessor. In order to establish that the Shopping
Center and any portion thereof is and will continue to remain private property
and to prevent a dedication thereof or the accrual of any rights of any person
or the public therein, Lessor hereby reserves the unrestricted right to close to
the general public for one (1) day in each calendar year all or any portion of
the Shopping Center owned, leased or controlled by Lessor, and, in connection
therewith, to seal off all entrances to the Shopping Center, or any portion
thereof. Lessee hereby acknowledges, consents and agrees that any and all
services, facilities, and access by the public to the Demised Premises and/or to
the Shopping Center may be suspended in whole or in part during such temporary
times as any of the department stores in the Shopping Center are not open for
business, on legal holidays, or such other days as may be declared by local,
state or federal authorities as days of observance and/or during any periods of
actual or threatened civil commotion, insurrection or other circumstances beyond
Lessor's control.
Section 6.02 - Operating Costs:
(a) Lessor shall, during the entire term of this lease, operate
and maintain or cause to be operated or maintained the common area, including,
without limiting the generality of the foregoing, the surface, lighting, marking
and landscaping thereof, and keep the same or cause the same to be kept as clean
as reasonably proper. The cost of such operation and maintenance shall include
without limiting the generality of the foregoing, the cost for lighting, snow
removal, marking, cleaning, (including depreciation, interest, insurance,
repairs and fuel for mechanical equipment) landscaping, policing, wages,
supplies, insurance, repairs, 10% of the foregoing to cover Lessor's
administrative cost, and personal property taxes shall be designated herein as
"common area maintenance cost". Lessee agrees to pay unto Lessor, in
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addition to all other rental in the lease provided during each rent year of the
term of this lease, Lessee's proportionate share of said common area maintenance
cost not to exceed 10.1% of such costs. Lessee's proportionate share shall be
the ratio which the sum of all ground floor area in the Demised Premises is to
the sum of all leasable ground floor area of each completed building intended
for lease in the Shopping Center, including the leased premises hereunder. For
the purpose of this section, all motor vehicle parking areas, (including
employee parking areas) roadways, walkways, truck ways, loading docks, delivery
areas, landscaped areas, and malls (excluding the enclosed mall) shall be deemed
a portion of the common area. Buildings and other facilities for commercial use
shall not be deemed a portion of said common area.
(b) Lessee agrees to pay unto Lessor, in addition to all other rental in
this lease provided, as its share of the "cost of maintenance of the enclosed
mall" (hereinafter defined) an amount determined by multiplying the entire
amount of the cost of maintenance of the enclosed mall by a fraction having as
its numerator the number of Lessee's store front linear feet which abut said
enclosed mall and as its denominator the number of store front linear feet of
the enclosed mall, which abut all buildings on said enclosed mall. Neither
Lessee's Demised Premises nor the Lessor's enclosed mall premises shall unduly
drain conditioned air from the other party's premises.
The term "maintenance of enclosed mall", as used in this section, shall
mean the actual costs incurred in connection with the operation, maintenance,
and repair of the enclosed mall and all machinery, equipment, and facilities
used in connection therewith. The said term shall include but shall not be
limited to the following elements of costs:
Charges for power, electricity and other utilities used for lighting and
for operating air conditioning and heating equipment;
Premiums for fire, extended coverage, vandalism, public liability, property
damage, and plate glass insurance covering or applicable to the enclosed
mall;
Maintenance, repair and replacement of air conditioning and heating
equipment and machinery;
Maintenance, repair and replacement of automatic door openers, lighting
fixtures (including replacement of tubes and bulbs), sprinkler systems, and
all other machinery, equipment, tools and facilities used exclusively in
connection with the operation of the enclosed mall;
Maintenance, repair and cleaning of the structural portions of the enclosed
mall, including floors, ceilings, roofs, skylights and windows;
Security protection for the enclosed mall (excluding security of Lessee's
property within its Demised Premises which shall be the sole responsibility
of Lessee);
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Maintenance, repair, renewal and replacement of landscaping, including
pruning, watering and fertilization.
Generally, the expenses to be taken into consideration in determining the
cost of maintenance of the enclosed mall shall be customary and reasonably
necessary; but shall in no event include the original cost of construction of
the enclosed mall, interest on Lessor's investment, compensation of executives,
overhead, office rental, or profit, except that Lessor shall be entitled to a
reasonable annual allowance for Lessor's supervision of the maintenance of the
enclosed mall not exceeding 10% of the annual total cost of maintenance of the
enclosed mall.
The Lessor shall have the right to provide all or any part of the foregoing
elements of the maintenance of the enclosed mall by an independent contractor or
contractors and the amounts paid to such contractor or contractors shall
constitute elements of expense within the definition of "cost of maintenance of
enclosed mall".
Lessor agrees that the services to be rendered in operating and maintaining
the enclosed mall shall be furnished in as economical a manner as is reasonably
possible consistent with proper performance of Lessor's obligations in the
management and operation of said enclosed mall, and Lessor agrees to keep and
maintain accurate, separate and complete records of Lessor's costs in connection
with the enclosed mall.
(c) "Common area maintenance costs" and "cost of maintenance of the
enclosed mall" are collectively defined as "Operating Costs". Lessee's annual
share of the Operating Costs for each full calendar year and partial calendar
year shall be paid in monthly installments on the first day of each calendar
month, in advance, in an amount estimated by Lessor from time to time. Lessor
shall have the right, at any time and from time to time during each calendar
year, to increase said estimate based on change, circumstances or additional
facts. Subsequent to the end of each full calendar year or partial calendar
year, Lessor shall notify Lessee of Lessee's proportionate share of Operating
Costs for such full calendar year or partial calendar year. If the payment made
by Lessee pursuant to this Section for any full or partial calendar year shall
be less than the actual amount due from Lessee for such year as shown on such
notice, Lessee shall pay to Lessor the difference between the amount paid by
Lessee and the actual amount due, within ten (10) days after receipt of such
notice. If the total amount paid by Lessee for any full or partial calendar year
shall exceed the actual amount due from Lessee for such full or partial calendar
year, such excess shall be credited against the next payment for Operating Costs
due from Lessee to Lessor pursuant to this Section. If the Term commences on a
day other than the first day of the calendar year, then Lessee's proportionate
share of Operating Costs shall be billed and adjusted on the basis of such
fraction of a calendar year. Lessee shall have the right within sixty (60) days
of receipt of Lessor's notice of Lessee's proportionate shares of Operating
Costs to undertake an audit, at Lessee's expense, of
10 May 16, 1997
17
such Operating Costs. If such audit discloses a discrepancy of greater than five
percent (5%), then Lessor shall reimburse Lessee the cost of such audit.
ARTICLE VII
MERCHANT'S ASSOCIATION OR MARKETING FUND
Section 7.01 - Merchant's Association:
(a) The Lessee will be a member of, participate fully in, and remain in
good standing in the Merchant's Association limited to tenants occupying
premises in the Shopping Center, and abide by the regulations of such
Association. Each member tenant shall have one vote and the Lessor shall also
have one vote in the operation of said Association. The object of such
Association shall be to encourage its members to deal fairly and courteously
with their customers, to follow ethical business practices, to assist the
business of the tenants by sales promotions and center-wide advertising, and in
particular to help the interest of members of said Association. The Lessee
agrees to pay minimum dues to the Merchant's Association in the amount of
$350.00 per month.
(b) Lessee further agrees to participate not less than once each month in a
printed newspaper advertisement jointly with the other tenants of the Shopping
Center in which Lessee's participation shall be not less than payment for a
statement of the name under which it does business, a general description of its
merchandise and its location in the Shopping Center.
Section 7.02 - Marketing Fund: In lieu and instead of a Merchant's
Association, Lessor at its option may establish a Marketing Fund for the
Shopping Center and, if established, Lessee agrees to contribute to such Fund
$350.00 per month. The failure of any other Lessee in the Shopping Center to
participate in the Merchant's Association or Marketing Fund, as the case may be,
shall not in any way release Lessee from Lessee's obligations hereunder, such
obligations being separate and independent covenants of this Lease.
ARTICLE VIII
CONDUCT OF BUSINESS BY LESSEE
Section 8.01 - Use of Demised Premises: Lessee shall occupy and use the
Demised Premises for maintenance and operation of a sporting goods department
store and automotive aftermarket association and parts and for no other purpose,
under the trade name G.I. JOE'S. Lessee shall continuously and uninterruptedly
during the term of this Lease conduct its customary business activity therein
during all normal business days and hours. Lessor reserves the right to dictate
to Lessee reasonable hours to stay open during a seven (7) day week, unless
prevented from so doing by union contract, strikes, fire, casualty or other
causes beyond Lessee's control
11 May 16, 1997
18
and except during reasonable periods for repairing, cleaning and decorating the
Demised Premises. Lessee shall not directly or indirectly engage in any similar
or competing business to that conducted by Lessee in the Demised Premises within
a radius of five (5) miles from the Demised Premises. It is the intention of
this Paragraph to avoid any merchandising conflicts between the lessees in this
Shopping Center.
Section 8.02 - Restrictions on Use: Lessee shall not use nor permit the
Demised Premises to be used for any purpose other than that set forth in Section
8.01 above, and further covenants and agrees to execute and comply promptly with
all statues, ordinances, rules, orders, regulations and requirements of federal,
state, county and city governments regulating the use by Lessee of the Demised
Premises. Lessee will not use, or permit the use of the Demised Premises in any
such manner that will tend to create a nuisance or tend to disturb other Lessees
or occupants of the Shopping Center. The restrictions set forth in this
Paragraph shall extend to all agents and employees of the Lessee. No auctions,
fire or bankruptcy sales may be conducted in the Demised Premises without the
previous written consent of the Lessor. Lessee shall not use nor permit in
excess of 3,200 square feet to be used for the sale of electronics and video
appliances and merchandise, or books and magazines.
Section 8.03 - Restrictions on Lessor: Lessor agrees to not lease 10,000
square feet or more of building area in the Shopping Center to a retailer
selling sporting goods or after market auto parts and supplies.
ARTICLE IX
MAINTENANCE AND REPAIRS
Section 9.01 - Maintenance by Lessee: Lessee shall at all times keep the
Demised Premises, in good order, condition and repair, including, but not
limited to, the maintenance, repair and replacement of the roof, structural
portions of the premises, exterior entrances, sidewalks, all glass in show
windows, moulding, partitions, doors, fixtures, equipment and appurtenances and
all heating, air conditioning, periodic painting as may be required, lighting
and plumbing fixtures, any damage by unavoidable casualty excepted. To the
extent Lessor receives any roof warranties, same shall be assigned to Lessee.
Section 9.02 - Maintenance by Lessor: If Lessee refuses or neglects to
repair promptly the Demised Premises as required in Section 9.01 above, in a
reasonable time after written demand by the Lessor, the Lessor may make such
repairs without liability to Lessee for any loss or damage that may accrue to
Lessee's merchandise, fixtures and/or other property; or to the loss of business
occasioned by reason thereof; and, further, upon completion of such repairs,
Lessee shall pay Lessor's incurred costs occasioned by such repairs, plus twenty
percent (20%) for overhead upon presentation
12 May 16, 1997
19
of the ▇▇▇▇ so incurred. It is further agreed and understood that said billing
of costs so incurred shall include interest at the rate of ten percent (10%) per
year from the date of completion of the repairs by the Lessor.
Section 9.03 - Alterations:
(a) Lessee shall not make any alterations or additions to the Demised
Premises, nor make any contract therefore, without first procuring Lessor's
written consent. All alterations, additions and improvements made by Lessee to
or upon the Demised Premises, except light fixtures, signs, electrical
equipment, cases, counters or other removable trade fixtures shall as between
Lessor and Lessee at once when made or installed be deemed to have attached to
the freehold and to have become the property of Lessor; provided, however, if
prior to termination of this Lease, or within fifteen (15) days thereafter,
Lessor so directs by written notice to Lessee, Lessee shall promptly remove the
additions, improvements, fixtures, trade fixtures and installations which were
placed in the Demised Premises by the Lessee and which are designated in said
notice and shall repair any damage occasioned by such removal, and, in default
thereof, Lessor may effect said removals and repairs at Lessee's expense.
(b) Lessee may from time to time (if Lessee shall not then be in default
under this Lease), at its own expense, alter, renovate, or improve the Demised
Premises in accordance with the terms hereof the same to be performed in a good
workmanlike manner, in accordance with accepted building practices and
applicable laws (including, but not limited to, building codes and zoning
ordinances), and so as not to weaken or impair the strength, or lessen the
value, of the building in which the Demised Premises are located or the Shopping
Center. No changes, alterations or improvements affecting the exterior of the
Demised Premises or the structure of the building or the Shopping Center shall
be made by Lessee without the prior written consent of Lessor. Prior to
commencement of all such work, Lessee shall obtain Lessor's prior written
approval of the plans and specifications therefor and shall cause Lessor's
requirements for bonding, insurance and other contractor requirements to be
satisfied. Any work done by Lessee under the provisions of Sections 5.01 and
9.01 shall not interfere with the use by the other lessees of their premises in
the Shopping Center.
Section 9.04 - Waiver Claims: Notwithstanding anything set forth in this
Lease to the contrary, Lessor and Lessee do hereby waive any and all rights of
recovery, claim, action or cause of action against the other, their respective
agents, officers and employees for any loss or damage that may occur to the
Demised Premises or any addition or improvements thereto, or any contents
therein, by reason of fire, the elements or any other cause for which the
waiving party is reimbursed by either party thereto, regardless of cause or
origin, including the negligence of Lessor or Lessee, or their respective
agents, officers and employees. In addition, all
13 May 16, 1997
20
insurance policies carried by either party covering the Demised Premises
including, but not limited to contents, shall permit the waiving of any right on
the part of the insured against the other party for damage to or destruction of
the Demised Premises and/or the building thereon or contents therein resulting
from the acts, omissions or negligence of the other party. Lessee waives all
claims for damage to property sustained by Lessee or any occupant of the Demised
Premises or any equipment or appurtenance becoming out of repair, or resulting
from any accident in or about the Demised Premises or resulting directly or
indirectly from any act or neglect of any Lessee or occupant or of any other
person, including Lessor's agents or servants. This Paragraph shall apply
especially, but not exclusively, to the flooding of basements or other
subsurface areas, and to damage caused by refrigerators, roof leaks, air
conditioning apparatus, sprinkling devices, water, snow, frost, steam, excessive
heat or cold, failing plaster, broken glass, sewage, gas odors or noise, or the
bursting or leaking of pipes or plumbing fixtures and shall apply equally
whether any such damage results from the act or neglect of Lessor or of other
lessees, occupants or servants in the Shopping Center or of any other person and
whether such damage be caused or result from any thing or circumstances above
mentioned or referred to, or any other thing or circumstances, whether of a like
nature or of a wholly different nature. All property belonging to Lessee or any
occupant of the Demised Premises or the Shopping Center shall be there at the
risk of Lessee or such other person only, and Lessor shall not be liable for
damage thereto or theft or misappropriation thereof.
Section 9.05 - Lessor's Right to Inspect: Lessor and its agents shall have
free access to the Demised Premises during all reasonable hours for the purpose
of examining same and to ascertain if they are in good repair, to make
reasonable repairs which the Lessor may be required to make hereunder and to
exhibit the same to prospective purchasers, lenders or lessees.
Section 9.06 - Cleanliness and Waste: Lessee shall keep the Demised
Premises and the interior and exterior walks adjacent thereto at all times in a
neat, clean and sanitary condition, free from snow, ice, waste or debris and
shall neither commit nor permit any waste or nuisance thereon.
ARTICLE X
INSURANCE
Section 10.01 - Insurance by Lessee: Lessee agrees that, at its own cost
and expense, it shall procure and continue in force, in the names of the Lessor
and Lessee, general liability insurance against any and all claims for injuries
to persons occurring in, upon, or about the Demised Premises, including all
damages from signs, glass, awnings, fixtures, or other appurtenances, now or
hereafter erected upon the Demised Premises, during the term of this Lease; such
insurance, at all times, shall be in an amount not less than One Million
($1,000,000) Dollars combined single limit per
14 May 16, 1997
21
occurrence. Lessee shall in the first instance obtain and maintain insurance
upon the Demised Premises, inclusive of all leasehold improvements against loss
or damage by fire and other risks included under "extended coverage" policies,
in the amount of the full replacement value thereof. Such insurance shall be
written on a company or companies authorized to engage in the business of
general liability insurance in the State in which the Demised Premises are
located, and there shall be delivered to the Lessor, upon the commencement of
this Lease and annually thereafter, customary certificates evidencing such
paid-up insurance, which certificates are to be issued by the insurance
companies.
The policies of insurance provided herein are to be provided by the Lessee,
and shall be for a period of not less than one (1) year, it being understood and
agreed that fifteen (15) days prior to the expiration of any policy of
insurance, the Lessee will deliver to the Lessor a renewal or new policy to take
the place of the expiring policy, with the further understanding that, should
the Lessee fail to furnish policies, as is provided in this Lease, and at the
times herein provided, the Lessor may obtain such insurance, and the premiums on
such insurance shall be deemed additional rental to be paid by the Lessee unto
the Lessor upon demand. Lessee shall make no claim for recovery against Lessor
and expressly waives any right of recovery against Lessor for damage to or loss
of the Demised Premises or improvements thereon, which damage or loss may arise
by fire or any other peril covered by any policy of insurance containing a
waiver of subrogation right against the Lessor in which said policy the Lessee
is or may be the insured and when said loss is caused by or results from any
acts of carelessness or negligence of the Lessor, its officers, employees or
other persons under is control. Lessee further covenants and agrees to apply to
its insurers for waiver of subrogation against Lessor, its agents and employees,
and to obtain same if Lessee's insurers will issue such waiver without cost.
Section 10.02 - Insurance by Lessor: Lessor shall procure at its own cost
and expense during the term of this Lease, common area public liability
insurance, fire, windstorm, and extended coverage insurance on the buildings
composing the Shopping Center; provided, Lessee shall reimburse Lessor for its
share of the actual net cost and expense to Lessor for such insurance for each
Lease Year in accordance with the formula established for Operating Costs in
Article VI.
Section 10.03 - Indemnity for Accidents: Lessee covenants and agrees that
it will protect and save and keep the Lessor forever harmless and indemnified
against and from any penalty or damage or charges imposed for any violation of
any laws or ordinances, whether occasioned by the neglect of Lessee or those
holding under Lessee, and that Lessee will at all times protect, indemnify and
save and keep harmless the Lessor against and from any and all claims, loss,
cost, damage or expense, arising out of or from any accident or other occurrence
on or about the Demised Premises, causing injury to any person or property
whomsoever or
15 May 16, 1997
22
whatsoever and will protect, indemnify and save and keep harmless the Lessor
against and from all claims, loss, cost, damage or expense arising out of any
failure of Lessee in any respect to comply with and perform all the requirements
and provisions of this Lease. The indemnity herein provided shall not extend to
any claim or charges which are caused or arise from any act or omission of
Lessor or a condition, in on or under the Demised Premises, not caused or
contributed to by the Lessee its employees, invites, customers, contractors or
agents.
Section 10.04 - Destruction by Fire or Casualty: The Lessee shall give
immediate notice to Lessor in case of fire or other casualty in or about the
Demised Premises or the building of which the Demised Premises is a part. In the
event the Demised Premises shall be damaged by fire, explosion, windstorm or any
other casualty, the Lessor, utilizing the proceeds of the insurance claims
payable under Lessee's policy described in paragraph 10.01, shall repair such
damages and put the Demised Premises in good condition as rapidly as reasonably
possible, and Lessee shall be entitled to an equitable abatement of the Fixed
Minimum Rent, unless Lessor shall establish that such damage was occasioned by
the acts of Lessee, its agents or employees.
In the event that fifty percent (50%) or more of the area of the Demised
Premises shall be damaged or destroyed by a fire or other cause, Lessor shall
have the right, to be exercised by notice in writing to be delivered within
sixty (60) days from the date of the occurrence, to elect to cancel and
terminate this lease. Upon the giving of such notice to the Lessee, the terms of
this lease shall expire by lapse of time upon the thirtieth day after such
notice is given, and the Lessee shall vacate the Demised Premises and surrender
the same to the Lessor. If Lessor does not elect to cancel this lease, Lessor
will rebuild the Demised Premises to the extent of the insurance proceeds
received by Lessor and/or Lessee.
Notwithstanding any other provisions of this Paragraph to the contrary, if
the Demised Premises shall be damaged during the last two (2) years of the Lease
term, and such damage shall be to the extent of more than twenty-five percent
(25%) of the value of the Demised Premises at the time of such damage, then
Lessor may, at its election, upon notice to Lessee, within ninety (90) days
after such damage, terminate this Lease as of the date of such damage.
Section 10.05 - Dram Shop Liability: In the event that at any time during
the term of this Lease, or any extensions or renewals thereof, beer, wines, or
other alcoholic liquors or beverages are sold or given away upon or from the
Demised Premises (it being understood and agreed, however, that the foregoing
provision shall not authorize the use of the Demised Premises for such purposes
without the express consent of the Lessor being set forth otherwise in this
Lease), Lessee shall, at its sole expense, obtain, maintain and keep in force
adequate Dram Shop insurance protecting
16 May 16, 1997
23
both Lessee and Lessor in connection therewith with policy limits covering the
full amount of potential liability provided for from time to time under the laws
of the state where the Demised Premises is located. Said policies shall be with
such companies as are authorized to write such coverage in the state where the
Demised Premises is located, shall be acceptable to Lessor and/or its Lender
(which shall be named an additional insured if requested in writing) and copies
shall be maintained on file with Lessor, and shall contain non-cancelable
clauses unless Lessor is given at least ten (10) days prior written notice of
such proposed cancellation. In the event Lessee shall fail to procure such
insurance, where applicable, Lessor may procure the same and in the event Lessor
shall be unable to procure the same (all at Lessee's expense), then sales of the
foregoing products shall be suspended until such coverage is again in force.
ARTICLE XI
TITLE
Section 11.01 - Possession by Lessee: Lessor covenants and warrants that is
has full right and authority to enter into this Lease for the full term hereof.
Lessor further covenants that Lessee, upon paying the Fixed Minimum Rent,
Percentage Rent and Additional Rent provided for herein and upon performance of
the covenants and agreements of this Lease to be performed by said Lessee, will
have, hold and enjoy quiet possession of the Demised Premises.
Section 11.02 - Sublease: Lessor shall have first refusal right to
recapture the premises, on a request by Lessee to sublease or assign to be
exercised within fifteen (15) days of receipt of such request. If Lessor does
not desire to recapture the premises, then Lessee shall not sublease, sublet or
assign the Demised Premises to assignees or sublessees except by written
permission and consent of Lessor. Lessor reserves the right to impose such
conditions upon assignment or subletting as in the circumstances may be
reasonable and necessary. Any such subleasing or assignment, even with the
approval of the Lessor, shall not relieve the Lessee from liability for payment
of the rent and any other monies due Lessor herein provided for or from the
obligation to keep and be bound by the terms conditions and covenants of this
Lease. The acceptance of rent from any other person shall not be deemed to be a
waiver of any of the provisions of this Lease or a consent to the assignment or
subletting of the Demised Premises. Any change in fifty percent (50%) or more of
the equitable or beneficial ownership of Lessee shall be deemed an assignment of
the Lease, except not as to the right to recapture herein provided. Lessee shall
pay Lessor a fee of $300 for the review of any proposed sublease or assignment
instrument and if such sublease or assignment is permitted and results in
rentals in excess of those rentals hereunder, Lessee shall pay fifty percent
(50%) of such excess rent to Lessor as Additional Rent as and when received by
Lessee.
17 May 16, 1997
24
Section 11.03 - Mortgages by Lessor:
A. Lessee agrees that, except as hereinafter provided with respect to
Lessee's right to possession of the Demised Premises, Lessee's rights under this
Lease are and shall always be subordinate to the lien of any mortgage or
mortgages or trust deed now or hereafter placed from time to time upon the land
and building of which the Demised Premises are a part, and to all advances
hereafter made from time to time upon the security thereof. Lessee shall, upon
written demand from Lessor, execute such other and further instruments or
assurances subordinating this Lease to the lien or liens of any such mortgage or
mortgages or trust deeds, or Lessor may execute such instrument on Lessee's
behalf and Lessee does hereby appoint Lessor as its attorney in fact in such
instances and towards such end, provided that if Lessor is not in default after
expiration of any applicable notice and grace period, Lessor acknowledges on
behalf of itself and any successors or assigns that this tenancy shall not be
terminated or materially modified nor shall Lessee's occupancy of the Demised
Premises be disturbed or interfered with as a result of any default under such
underlying mortgage or trust deed. If any mortgagee or trustee under a trust
deed elects to have Lessee's interest in this Lease superior to any such
interest by notice to Lessee, then this Lease shall be deemed superior to any
such mortgage or trust deed whether this Lease was executed before or after such
mortgage or trust deed.
B. The Lessee agrees to an assignment of rentals by the Lessor to a present
or future mortgagees, notification of which shall be given to Lessee. If
assignment is made by Lessor, then Lessee agrees to deliver to said mortgagee a
copy of any request for performance made upon the Lessor, or any notice of a
default made upon Lessor. In the event Lessor fails to cure any default, the
Lessee will give said mortgagee a reasonable period of time to cure said defect,
which period of time shall be no less than that allowed Lessor. The mortgagee's
reasonable period of time will begin following the last day which the Lessor
could have cured such default before the Lessee could exercise any remedy by
reason of such default unless such mortgagee is notified simultaneously with
Lessor in which event mortgagee's right shall be coterminous with Lessor of such
default.
Section 11.04 - Surrender of Premises: Lessee shall, upon the expiration
date or sooner termination of this Lease, surrender to Lessor the Demised
Premises, together with all replacements thereto, in good order, condition and
repair, except for ordinary wear and tear and loss by fire or other casualty, as
the same are now or may hereafter be found during the term of this lease. If
Lessee fails to surrender the Demised Premises as required herein, except with
the consent of Lessor, Lessee may be deemed a month to month Lessee and shall
pay Lessor, as holdover rent, twice the monthly rental amount as was payable in
the last month of the lease term in addition to all other Additional Rent
required under this Lease Agreement, for the duration of such holdover period.
18 May 16, 1997
25
Section 11.05 - Eminent Domain: In the event the Demised Premises, or any
part thereof, shall be taken or condemned for public purposes by any competent
authority, the entire compensation awarded therefore shall belong to the Lessor,
without any deduction therefrom for any present or future estate of Lessee;
provided, however that in the event any part of the Demised Premises itself or
more than twenty percent (20%) of the land described in Exhibit "A" shall be so
taken or condemned, then either the Lessor or Lessee shall have the option of
terminating this Lease upon giving the other written notice of such election
within thirty (30) days after possession of the part condemned has been taken by
proper authorities, whereupon the term of this Lease shall be terminated, as of
the date on which possession is so taken. If neither Lessor or Lessee elects to
terminate the term of this Lease, the Lessor, at its own expense, shall repair
and restore the premises not affected by the taking and thereafter if a part of
Demised Premises itself has been taken or condemned, the Fixed Minimum Rent to
be paid by the Lessee shall be equitably and proportionately reduced. To the
extent recoverable, Lessee shall be entitled to pursue its own claim against the
condemning authority for relocation benefits, business loss or loss of personal
property, provided such claim does not reduce any amount awarded to Lessor.
Section 11.06 - Attornment: If, at any time prior to the termination of
this Lease, the holder of any mortgage referred to in Paragraph 11.03(A) (or any
person or such person's successors or assigns, who acquires the interest of
Lessor under this Lease through foreclosure action or an assignment or deed in
lieu of foreclosure) shall succeed to the rights of Lessor under this Lease
through possession or foreclosure or delivery of a new lease or deed or
otherwise, Lessee agrees at the election and upon request of any such person, to
fully and complete attorn, from time to time, to and recognize such person as
Lessee's Lessor under this Lease upon the then executory term of this Lease.
Upon such attornment this Lease shall continue in full force and effect as a
direct lease between Lessee and such successor Lessor except that such successor
Lessor shall not be:
(i) liable for any previous act or omission of any prior Lessor
(including Lessor);
(ii) subject to any offsets or defenses which may have theretofore
accrued to Lessee against any prior Lessor (including Lessor); or
(iii) bound by any previous prepayment of Basic Rent or Additional
Rent for a period greater than one month in advance.
19 May 16, 1997
26
ARTICLE XII
SIGNS, LIGHTING, AND UTILITIES
Section 12.01 - Signs: Without Lessor's prior consent and approval, which
shall not be unreasonably withheld, Lessee shall not (a) install any exterior
lighting, under-canopy signs, awnings or shades, or any exterior decorations or
painting, or build any fences or make any changes to the store front; (b) erect
or install any exterior or interior window or door signs or advertising media,
window or door lettering or placards; (c) keep or display any merchandise on, or
otherwise obstruct the sidewalks to areaways adjacent to the Demised Premises;
(d) fail to maintain the show windows and signs in a neat and clean condition.
Lessee shall not use any advertising or other media objectionable to Lessor
and/or local codes governing same, such as loudspeakers, phonographs or radio
broadcasts that can be heard outside the Demised Premises.
It is the intention of this Section, as related to signs, to effectively
originate and maintain an overall sign control and design for the protection of
all lessees. In this connection, Lessee further agrees to furnish and install a
sign that will meet the sign standards that may be required.
All signs must conform with the Lessor's sign specifications and/or be
approved by Lessor prior to installation.
Section 12.02 - Lighting: Lessee shall keep the display windows in the
Demised Premises well lighted from dusk until such reasonable hour as may be
determined by Lessor, which reasonable hour will be determined from time to
time, during each and every weekday, except Sundays and Holidays, during the
term of this Lease unless prevented by cause or causes beyond the control of the
Lessee.
Section 12.03 - Utilities and Services:
(a) Lessee shall pay promptly, as and when the same become due and payable,
all water rents, rates and charges, all sewer rents and all charges for
electricity, gas, heat, steam, hot and/or chilled water, air conditioning,
ventilating, lighting systems, and other utilities supplied to the Demised
Premises whether by Lessor, a governmental unit or utility company, or
otherwise. If any such utilities are not separately metered or assessed or are
only partially separately metered or assessed and are used in common with other
Lessees in the Shopping Center, Lessee will pay to Lessor a proportionate share
of such charges for utilities used in common based on square footage of floor
space leased to each Lessee using such common facilities, in addition to
Lessee's payments of the separately metered charges. Lessor shall in no event be
liable for the quality, quantity, or interference of such services.
20 May 16, 1997
27
(b) Lessor may install re-registering meters and collect any and all
charges aforesaid from Lessee, making returns to the proper public utility
company or governmental unit, provided that Lessee shall not be charged more
than the rates it would be charged for the same service if furnished directly to
the Demised Premises for such companies or governmental units.
(c) Notwithstanding anything else contained in this Lease to the contrary,
Lessor shall have the right, at any time and from time to time, to cause one or
more utilities (including, without limitation, any heating, ventilating, air
conditioning, and/or lighting systems serving the Demised Premises and/or any
other Shopping Center areas) to be furnished by means of a central energy system
(whether so-called "total energy" or otherwise) in lieu of the direct furnishing
of the same to Lessee and other occupants of the Shopping Center from the
appropriate utility company, and Lessee agrees in any such case, to accept any
such utility from such alternative source in lieu of the appropriate utility
company directly, and to pay Lessor and/or such alternative source or other
designee as Lessor shall determine all costs and charges therefor provided that
the same shall not result in any additional cost or expense for the energy to
Lessee over and above that which it would pay if it purchased same directly from
the appropriate utility company, plus an additional ten (10%) percent for
Lessor's overhead costs; and provided further that same is in compliance with
all law, regulation, ordinances and other governmental requirements. Lessor
shall have no liability to Lessee for the quality, quantity, failure or
disruption of any utility service, and in no event shall such disruption
constitute constructive eviction or entitle Lessee to an abatement of rent or
other charges. Any such charges for service supplied by Lessor shall be due and
payable on the first day of each calendar month throughout the Term along with
all other payments made hereunder, or if separately billed within ten (10) days
after ▇▇▇▇▇▇▇▇ therefor are rendered to Lessee.
ARTICLE XIII
DEFAULT
Section 13.01 - Default By Lessee: All of the right and remedies of Lessor
herein enumerated shall be cumulative, and none shall exclude any other right or
remedy allowed by Law. It is agreed that in the event:
(i) That the Lessee shall fail, neglect or refuse to pay any
installment of Fixed Minimum Rent or Percentage Rent or Additional Rent at the
time, and in the amount as herein provided, or to pay any other monies agreed by
it to be paid promptly when and as the same shall become due and payable under
the terms hereof, if such failure to pay exceeds a period of more than ten (10)
days after notice thereof in writing is given to Lessee (provided such notice is
not required if such notice were previously given in any twelve (12) month
period), or if the Lessee shall vacate or abandon the Demised Premises during
the term hereof;
21 May 16, 1997
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(ii) That any voluntary petition or similar pleading, under any
section or sections of any bankruptcy act, shall be filed by or against Lessee,
or any voluntary or involuntary proceeding in any court or tribunal shall be
instituted to declare Lessee insolvent, or unable to pay Lessee's debts, and the
same shall not be dismissed or discharged within thirty (30) days after notice
thereof in writing, given to the Lessee by Lessor;
(iii) That the Lessee shall fail, neglect or refuse to keep and
perform any of the other covenants conditions, stipulations or agreements herein
contained and covenants and agrees to be kept and performed by it, and in the
event any such default shall continue, for a period of more than thirty (30)
days after notice thereof in writing given to the Lessee, by the Lessor;
provided, however, that if the cause for giving such notice involves the making
of repairs, or other matters reasonably requiring a longer period of time than
the period of such notice, the Lessee shall be deemed to have complied with such
notice so long as it has commenced to comply with said notice within the period
set forth in the notice, and is diligently prosecuting compliance with said
notice, or has taken proper steps or proceedings, under the circumstances, to
prevent the seizure, destruction, alteration or other interference with said
Demised Premises by reason of non-compliance with the requirements of any law or
any ordinance or with the regulations, rules or directions of any government
authority, as the case may be;
(iv) That the Lessee makes any assignment of its property for the
benefit of creditors, or should the Demised Premises be taken under a levy of
execution or attachment, in action against the Lessee, and such levy, attachment
or assignment is not dismissed and discharged within thirty (30) days after
written notice thereof to Lessee by Lessor;
The Lessee does hereby authorize and fully empower said Lessor or Lessor's
agent to cancel or annul this Lease at once and to re-enter and take possession
of said Demised Premises immediately, and by force if necessary, without any
previous notice to re-enter and remove all persons and their property therefrom,
and to use such force and assistance in effecting and perfecting such removal as
said Lessor may deem necessary and advisable to recover at once full and
exclusive possession of all of said Demised Premises, whether in possession of
said Lessee or of their persons or otherwise, and relet the Demised Premises,
and Lessee agrees to pay to Lessor, on demand, any deficiency that may arise by
reason of such reletting. Alternatively, at Lessor's option, Lessor may declare
all installments of Minimum Rent and Additional Rent as adjusted at the time of
default for the remainder of the lease term, to be immediately due and payable
(the "Lump Sum") whereupon the same shall become immediately due and payable.
Should Lessor elect such option and subsequently Lessor relets the Demised
Premises whereupon rent is payable by a new lessee prior to January 31, 2018,
then Lessor will (to the extent the new rent is equal to or greater
22 May 16, 1997
29
than the rent payable by Lessee) refund, as received, to Lessee that portion of
the Lump Sum that is equal to the rents that would be payable by such new lessee
through January 31, 2018 (the "Refund"). To the extent rentals payable by the
new lessee are less than the rents required under this Lease, then the Refund
will be reduced for the total of such difference through January 31, 2018.
The Lessor may, however, at its option, at any time after such default or
violation of condition or covenant, re-enter and take possession of said Demised
Premises without such re-entering working a forfeiture of the rents to be paid
and the covenants, agreements and conditions to be kept and performed by said
Lessee for the full term of this Lease. In such event, the Lessor shall have the
right, but not the obligation, to divide or subdivide the Demised Premises in
any manner the Lessor may determine and to lease or let the same or portions
thereof for such periods of time and at such rentals and for such use and upon
such covenants and conditions as Lessor may elect, applying the net rentals from
such letting first to the payment of the Lessor's expenses incurred in
dispossessing the Lessee and the costs and expenses of making such improvements
in the Demised Premises as may be necessary in order to enable the Lessor the
relet the same, and to the payment of any brokerage commissions or other
necessary expenses of the Lessor in connection with such reletting. The balance,
if any, shall be applied by the Lessor from time to time, but in any event not
less than once each month, on account of the payments due or payable by the
Lessee hereunder, with the right reserved to Lessor to bring such actions or
proceedings for the recovery of any deficits remaining unpaid as it may deem
advisable from time to time, without being obligated to await the end of the
term hereof for a final determination of the Lessee's account and the
commencement or maintenance of one (1) or more actions shall not bar the Lessor
from bringing other or subsequent actions for further accruals pursuant to the
provisions of this Paragraph. Any balance remaining, however, after full payment
and liquidation of Lessor's account, as aforesaid, shall be paid to the Lessee
from time to time with the right reserved to the Lessor at any time to give
notice in writing to the Lessee of Lessor's election to cancel and terminate
this Lease and all Lessee's obligations hereunder and upon the giving of such
notice and simultaneous payment by Lessor to Lessee of any credit balance in
Lessee's favor that may at the time be owing to Lessee shall constitute a final
and effective cancellation and termination of this Lease and the obligations
thereunder on the part of either party to the other.
A monthly delinquency charge may be imposed upon the delinquent Lessee and
shall be paid by Lessee. Collection costs and reasonable attorneys' fees,
totaling a) the greater of the actual costs or b) no more than fifteen percent
(15%) of the unpaid balance, shall also be paid if delinquencies are referred
for collection.
Section 13.02 - Lien of Lessor for Rent, Taxes, and Other Sums: Lessor
shall have, and Lessee hereby grants, a security interest in any furnishings,
equipment,
23 May 16, 1997
30
fixtures, inventory, accounts receivable, or other personal property of any kind
belonging to Lessee, or the equity of Lessee therein, on the Demised Premises.
The security interest is granted for the purpose of securing the payment of
rent, other charges, assessments, penalties and damages herein covenanted to be
paid by Lessee and for the purpose of securing the performance of all other
obligations of Lessee under this Lease. Upon Lessee's default or breach of any
covenants of this Lease, Lessor shall have all remedies available under the
Uniform Commercial Code enacted in the State where the Demised Premises are
located and all other laws of said State, including, but not limited to the
right to take possession of the above mentioned property and dispose of it by
public or private sale in a commercially reasonable manner. Lessee shall execute
and deliver, from time to time, Financing Statements at Lessor's request for the
purpose of perfecting and maintaining the priority of the security interest
granted to Lessor under this Section 13.02 in the manner provided by law. Lessee
shall, upon demand, reimburse Lessor for all filing and recording fees and taxes
incurred in connection with filing and recording such Financing Statements. Any
statutory lien for rent is not hereby waived, the express contractual lien
herein granted being in addition and supplementary thereto. Any Lessor lien
herein provided or statutory lien, to the extent permitted by law, for Lessee's
fixtures, equipment or inventory, may be subordinated to any institutional
lender ("Lender") such fixture, equipment ("Collateral") or inventory, provided
that
Lessor's security interest in and to the Collateral is hereby subordinated
to Lenders interest therein and it will only assert against the Collateral any
statutory, contractual, or possessory liens, including without limitation,
rights of levy or distraint for rent, subject to Lender's priority interest and
further provided:
(a) none of the Collateral located on the Demised Premises shall be
fixtures;
(b) it will notify Lender if Borrower defaults on its lease obligations to
the Lessor and allow Lender thirty (30) days from its receipt of notice in which
to cure or cause Borrower to cure any such defaults;
(c) if, for any reason whatsoever, the Lessor either deems itself entitled
to redeem or to take possession of the Demised Premises during the term of
Borrower's lease, the Lessor will notify Lender thirty (3) days before taking
such action;
(d) if Borrower defaults on its obligations to Lender and, as a result,
Lender undertakes to enforce its security interest in the Collateral located on
the Demised Premises, will permit Lender to remain on the Demised Premises for
thirty (3) days after Lender undertakes to enforce its security interest in the
Collateral, if Lessor is paid the rent provided under the lease that is
attributable only to the number of days that Lender remains on the Demised
Premises, or, at Lender's option to remove the
24 May 16, 1997
31
Collateral from the Demised Premises within a reasonable time, not to exceed
thirty (30) days after lender undertakes to enforce its security interest in the
Collateral, if Lessor is paid rent provided under the lease that is attributable
only to the number of days that Lender remains on the Demised Premises, and will
not hinder Lender's actions in enforcing its liens on the Collateral, provided:
(1) The Lender shall notify the Lessor in writing, in advance, of its
intentions to enter upon the Demised Premises;
(2) The Lender shall indemnify, defend and hold the Lessor harmless from
any and all claims, loss, liability, damage, cost and expense arising out of the
entry upon the Demised Premises, removal of Collateral therefrom and all other
actions in or about the Demised Premises by the Lender, its agents or employees,
which cause injury or damage to any person or property in or about the Demised
Premises and/or the shopping center of which the Premise is a part; and
(3) The Lender shall carry out all such acts at such time and in such a
manner as to not interfere with the normal activity of the said shopping center.
Section 13.03 - Default by Lessor: Lessor shall in no event be charged with
default in the performance of any of its obligations unless and until Lessor
shall have failed to perform such obligations within thirty (30) days (or such
additional time as is reasonably required to correct any such defaults) after
notice by Lessee to Lessor properly specifying wherein Lessor has failed to
perform any such obligation.
ARTICLE XIV
TAXES
Section 14.01 - Real Estate Taxes:
(a) Lessee shall pay to Lessor its proportionate share of real estate taxes
for the Demised Premises, the Shopping Center and all common areas thereof.
Lessee's proportionate share shall be the ratio which the sum of all ground
floor area in the Demised Premises is to the sum of all leasable ground floor
area of each completed building intended for lease in the Shopping Center,
including the leased premises hereunder.
(b) The term "real estate taxes" shall mean all taxes and assessments and
other governmental charges and levies, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind and nature (including
interest on such assessments whenever the same are payable in installments),
levied or assessed directly or indirectly against all or any portion of the
Shopping Center (including without limitation, land, buildings, and/or
improvements, as the same may be enlarged or reduced from time to time), and
other taxes arising out of the use
25 May 16, 1997
32
and/or occupancy of the Shopping Center or any part thereof, imposed by federal,
state or local governmental authority or any other taxing authority having
jurisdiction over the Shopping Center or any part thereof, including expenses
incurred by or on behalf of Lessor in contesting the validity of, in seeking a
reduction in, or in seeking to prevent an increase in any such tax(es) or
assessment(s), but shall exclude franchise, capital stock income, estate or
inheritance taxes personal in nature to Lessor.
(c) Lessor shall pay all real property taxes and assessments levied or
payable during the term hereof, by the county and municipality upon the Demised
Premises, building and other improvements making up the Shopping Center;
provided, however, that Lessee shall reimburse Lessor for its share of such
payment of real property taxes and assessments. Reimbursement by Lessee to
Lessor for its share of real property taxes, shall be made on the basis of the
tax year July 1 to the following June 30 as the same may be changed from time to
time.
(d) Lessor shall pay taxes on an annual basis within 30 days of receiving
property tax invoice from Lessee. Lessor shall have the right, at any time and
from time to time during each calendar year, to increase said estimate based on
changed circumstances or additional facts. After the end of each calendar year,
Lessor shall furnish Lessee a statement of the actual real estate taxes,
prepared in accordance with sound accounting practices by Lessor's accounting
department, and there shall be an adjustment between Lessor and Lessee, with
payment to Lessor, or credit to Lessee against the next payment for real estate
taxes due from Lessee to Lessor under this Section, as the case may require, to
the end that Lessor shall receive taxes for such period. If the Term commences
on a day other than the first day of the calendar year, then Lessee's
proportionate share of real estate taxes shall be billed and adjusted on the
basis of such fraction of a calendar year.
(e) If any taxing authority includes in such real estate taxes the value of
any machinery, equipment, fixtures, inventory or other personal property or
assets of Lessee, then Lessee agrees to pay the entire taxes attributable to
such items in addition to, but not in duplication of, the real estate taxes
referred to in this Section.
(f) Lessor shall promptly furnish Lessee with copies of any notice of
increased assessed value of the leased premises of the Shopping Center. Lessee
at its expense shall have the right to contest the amount of validity of all or
part of the taxes for which it is required to reimburse Lessor pursuant hereto,
and for that purpose, Lessee shall have the right to file in the name of Lessor
all such protests or other instruments, and institute and prosecute proceedings
it may deem necessary for the purpose of such contest, Lessee hereby agreeing
that it shall indemnify Lessor against any loss or liability by reason of such
contest. Any refund of any tax or assessment for which Lessee has reimbursed
Lessor shall belong to Lessee, and Lessor agrees to
26 May 16, 1997
33
pay the same to Lessee promptly in the event payment thereof is initially made
to Lessor.
Section 14.02 - Personal Property Taxes and Assessments:
(a) The Lessee shall pay, before delinquent, any and all taxes, licenses,
fees and public charges levied, assessed or imposed, and which become payable
during the lease term upon Lessee's fixtures, furniture, appliances and personal
property, located or installed in the Demised Premises. Lessee shall pay
promptly when due, or make reimbursement to Lessor upon demand, for all taxes
imposed upon Lessee's rent, lease and business operation including, without
limitation, any and all documentary stamps or similar taxes assessed upon this
Lease and/or the consideration to be received by Lessor by reason of this Lease
(except any franchise, estate, inheritance, capital stock, income or excess
profits taxes personal in nature to Lessor) and upon all personal property of
Lessee.
(b) If at any time during the Term, a tax or excise in rents or other tax,
however described (except any franchise, estate, inheritance, capital stock,
income or excess profits taxes personal in nature to Lessor) is levied or
assessed against Lessor by any lawful taxing authority on account of the
Lessor's interest in this Lease or the rents expressly reserved hereunder as a
substitute in whole or in part, or in addition to, the real property taxes
hereinbefore described, Lessee shall pay to Lessor, as additional rent
hereunder, the amount of such tax, excise on rents or other tax, but only to the
extent of the amount thereof which is lawfully assessed or imposed as a direct
result of Lessor's ownership of this Lease or the rentals reserved hereunder. In
the event any such tax, excise on rents or other tax, however described, is
levied or assessed directly against Lessee by any lawful taxing authority on
account of Lessee's interest in this Lease or the leasehold estate hereby
created or the rents to be paid by Lessee hereunder, then Lessee shall be
responsible therefor and agrees to pay the same before delinquency. If any
lawful taxing authority requires that any such tax or excise on rents or other
tax, however described, for which Lessee is responsible hereunder, other than
the real property taxes levied or assessed against the Shopping Center, be paid
by Lessee, but collected by Lessor, for and on behalf of such taxing authority
and from time to time forwarded by the Lessor to such taxing authority, then the
same shall be paid by Lessee to Lessor at such times as such taxing authority
shall require and be collectible by Lessor and the payment thereof enforced in
the same fashion as provided for the enforcement of payment of rent hereunder
and for the purpose of enforcing payment thereof shall be deemed additional rent
hereunder.
27 May 16, 1997
34
ARTICLE XV
MISCELLANEOUS
Section 15.01 - Notices: Whenever under this Lease a provision is made for
any demand, notice or declaration of any kind, or where it is deemed desirable
or necessary by either party to give or serve any such notice, demand or
declaration to the other, it shall be in writing sent by overnight mail or
certified mail, return receipt requested, postage prepaid, if to the Lessee
addressed to the Lessee at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and if
to the Lessor, addressed to the Lessor at Milestone Properties, Inc. c/o Concord
Assets Management, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, and either party may, by like notice at any time and from time to time,
designate a different address to which notices shall be sent. Such notices,
demands or declarations shall be deemed sufficiently served or given for all
purposed hereunder at the time they shall be mailed or transmitted by overnight
delivery service or by United States certified mail, as aforesaid.
Section 15.02 - Waiver: One (1) or more waivers of any covenant, term or
condition of this Lease by either party shall not be construed by the other
party as a waiver of a subsequent breach of the same term, covenant, or
condition. The consent or approval of either party to or of any act by the other
party of a nature requiring consent or approval shall not be deemed to waive or
render unnecessary consent to or approval of any subsequent similar act.
Section 15.03 - Relationship of Parties: Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent or of partnership or of joint
venture or of any association whatsoever between Lessor and Lessee, it being
expressly understood and agreed that neither the method of computation of rent
nor any of the other provisions contained in this Lease nor any act or acts of
the parties hereto shall be deemed to create any relationship between Lessor and
Lessee other than the relationship of Lessor and Lessee.
Section 15.04 - Governing Law: The laws of the State in which the Demised
Premises is situated shall govern the validity, performance and enforcement of
this Lease.
Section 15.05 - Savings Clause: The invalidity or unenforceability of any
provision of this Lease shall govern the validity of any other provision.
Section 15.06 - Marginal Headings: The paragraph titles herein are for
convenience only and do not define, limit or construe the contents of such
paragraphs.
28 May 16, 1997
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Section 15.07 - Covenant to Bind Successors: It is agreed that the
provisions, covenants and conditions of this Lease shall be binding on the legal
representatives, heirs, successors and assigns of the respective parties hereto.
Section 15.08 - Credit Reports: The Lessee's performance under this Lease
Agreement may be reported to credit reporting agencies. The Lessor may also
obtain a consumer report of Lessee's credit history from a credit reporting
agency. Upon request, Lessee will be informed whether a consumer report was
obtained and if so, the name and address of the agency furnishing the report.
Section 15.09 - Letter of Estoppel: Within ten (10) days after request
therefore by Lessor, the Lessee shall provide an offset statement. Lessee agrees
to deliver in recordable form a certificate, prepared by or caused to be
prepared by Lessor, to any proposed mortgagee or purchaser, or to Lessor,
certifying (if such be the case) that this Lease is in full force and effect and
there are no defenses or offsets thereto, or stating those claimed by Lessee. In
the event Lessee should refuse to execute and deliver said statement and/or
certificate, the Lessor shall have the right to cancel this Lease by giving
Lessee an additional ten (10) days notice in writing, whereupon this Lease shall
be of no further force and effect.
Section 15.10 - Exculpation: Lessee agrees that Lessee shall look solely to
Lessor's interest in the Shopping Center property of which the Demised Premises
are part for the satisfaction of any claims, judgements or decrees requiring the
payment of money by Lessor based upon default hereunder. No other property or
assets of Lessor, its successors or assigns shall be subject to levy, execution
or other enforcement procedure.
Section 15.11 - Force Majeure: Lessor or Lessee shall not be required to
perform any term, condition or covenant in this Lease so long a such performance
is delayed or prevented by force majeure, which shall mean Acts of God, strikes,
lockouts, material or labor restriction by any governmental authority, civil
riot, floods, earthquake, hurricane and other cause not reasonably within the
control of Lessor or Lessee, and which by the exercise of due diligence Lessor
or Lessee is unable, wholly or in part, to prevent or overcome.
Section 15.12 - Entire Agreement: This Lease, and Exhibits and Rider, if
any, attached hereto and forming a part hereof, set forth all of the covenants,
promises, agreements, conditions and understandings between the Lessor and
Lessee governing the Demised Premises. There are no covenants, promises,
agreements, conditions and understandings, either oral or written, between them
other than those herein set forth. Except as herein provided, no subsequent
alterations, amendments, changes or additions to this Lease shall be binding
upon the Lessor or Lessee, unless reduced to writing and signed by both parties.
29 May 16, 1997
36
Section 15.13 - Negotiation and Execution: The furnishing of this Lease by
the Lessor to the prospective Lessee shall not be considered an offer to lease,
even though completed in every respect, until and unless the document has been
executed by the appropriate office of Lessor. No correspondence or other
communication respecting this Lease shall create any obligation to go forward
with this Lease until the Lease document is fully completed and executed by both
the Lessor and Lessee.
30 May 16, 1997
37
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first above written.
Signed and Acknowledged Lessor:
In the Presence of:
Milestone Properties, Inc., a Delaware
corporation
/s/ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------- -------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------- Senior Vice President
Lessee:
G.I. Joes, Inc., a __________ corporation
/s/ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- -------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- President and CEO
Federal Tax ID No.: ▇▇▇▇▇▇▇▇▇
(Must be filled in)
31 May 16, 1997
38
Rider I
Lessor Contributions:
a) New roof for the Demised Premises to be completed by September 1997.
b) Up to $30,000 allowance for new entrance doors upon presentation of
actual invoices certified by an officer of the Lessee.
c) Up to $52,450 allowance for new floor tile upon presentation of actual
invoices certified by an officer of the Lessee.
d) If available, Lessee will be provided with up to 2,500 square feet of
store space in the Shopping Center as close to its primary store as
then practical, for a period of up to ninety (90) days. During such
period, Lessee will be responsible for utilities servicing such store.
The space must be properly insured by Lessee and returned to Lessor in
good condition.
39
SHORT FORM OF LEASE AMENDMENT
THIS AMENDMENT is dated as of the 1st day of February 1998, by and between
Milestone Properties, Inc., a Delaware corporation, Lessor and G.I. Joe's, Inc.,
an Oregon corporation, Lessee.
WHEREAS, Lessor's predecessor in interest and Lessee entered into a Lease
dated June 8, 1978, for certain demised premises located in Bend, Oregon, more
particularly described on Exhibit "A" attached hereto; and
WHEREAS, a Short Form of said Lease was filed of record in Volume 279, Page
493, in the Deschutes County Deed Records.
NOW THEREFORE, Lessor and Lessee have agreed to the termination of said
original Lease and its replacement by a new Lease executed June 3, 1997, for a
term commencing on February 1, 1998, for a term of twenty (20) years.
Henceforth, this new lease shall supersede all references of record to the Lease
or Lease Agreement. All terms, conditions, provisions and covenants of said new
lease agreement are incorporated in this Amendment by reference, as though
written out at length herein and this Amendment shall be deemed to supersede the
Short Form Of Lease previously recorded.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and sealed as of February 1, 1998.
Milestone Properties, Inc.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
G.I. Joe's, Inc. an Oregon corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President & CEO
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇
The foregoing instrument was acknowledged before me this 27th day of
January 1998, by ▇▇▇▇▇▇ ▇▇▇▇▇▇, as President of Milestone Properties, Inc., a
Delaware corporation, on behalf of the corporation. He is personally known to me
or has produced a drivers license as identification.
Sign: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
NOTARIAL SEAL
Print: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
State of Florida at Large (SEAL)
My Commission Expires: February 20, 1999
------------------
STATE OF OREGON
COUNTY OF CLACKAMAS
The foregoing instrument was acknowledged before me this 28 day of January
1998, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as President & CEO of G.I. Joe's, Inc., an Oregon
corporation, on behalf of the corporation. He/she is personally known to me or
has produced a drivers license as identification.
Sign: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
NOTARIAL SEAL
Print: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
----------------------------------
My Commission Expires: 12-15-2000
------------------