WAREHOUSE LEASE
DATED AS OF: _______________, 199___
BETWEEN: TIMOTHY P. BOYLE and GERTRUDE BOYLE,
as tenants in common
c/o 6600 N. Baltimore
P.O. Box 83239
Portland, OR 97382-0239 LANDLORD
AND: COLUMBIA SPORTSWEAR COMPANY,
an Oregon corporation
6600 N. Baltimore
P.O. Box 83239
Portland, OR 97382-0239 TENANT
Tenant wishes to lease from Landlord and Landlord wishes to lease to Tenant
the following property (the "Property") located in the State of Oregon and
described as follows:
Certain real property and the building and other
improvements, including, without limitation, the related
parking and access areas ("Building") located at 8638 North
Crawford Street in the City of Portland, Multnomah County,
Oregon, consisting of a parcel of land containing
approximately 40,000 square feet and a Building containing
approximately 24,468 sq. ft. of gross area; commonly known
as the Columbia Sportswear North Crawford Street Warehouse,
Portland, Oregon, together with all appurtenances, easements
and rights of way related thereto.
NOW, THEREFORE, Landlord hereby leases the Property to Tenant on the
following terms:
1. Term; Possession.
1.1 Term. The term of this Lease shall commence on the Commencement
Date described below and continue for sixty (60) full calendar months (plus the
partial month, if any, in which this Lease commences), unless sooner terminated
or extended as provided in this Lease. As used in this Lease, "Commencement
Date" shall mean the date first set forth above.
1.2 Acceptance of Property. Tenant has been in occupancy of the
Property for a considerable period prior to the Commencement Date and accepts
the land and Property in its present condition, AS IS, WHERE IS. Landlord shall
not be required to perform or pay for any work to ready or keep the Property for
Tenant's occupancy.
1.3 Extension Options. So long as Tenant is not then in default under
this Lease, Tenant will have an option to extend the term of this Lease for an
additional period of five (5) years, commencing upon the otherwise scheduled
expiration of the initial term. In the event an option is not exercised, such
option automatically shall be extinguished. The other terms and conditions of
this Lease will remain the same during the extension period. Exercise of the
extension option shall be by notice given not more than one hundred eighty (180)
days nor less than ninety (90) days prior to expiration of the initial term.
2. Rental.
2.1 Base Rental. During the term, as the same may be extended, Tenant
will pay to Landlord on a monthly basis a monthly base rent of $4,404.00 per
month, subject to adjustment as provided below.
2.2 Time and Place of Payment. Rent will be paid in advance on the
first day of each month to Landlord at the address for Landlord set forth in
this Lease (or such other address as Landlord may direct by notice to Tenant),
without offset, abatement or deduction. Rent is uniformly apportionable
day-to-day. Rent for the partial month (if any) in which the Lease term
commences shall be prorated and paid at commencement of the Lease term.
2.3 Interest on Late Payments. All rent and other payments owed by
Tenant to Landlord under this Lease not paid when due shall bear interest from
the due date until fully paid at the rate specified in paragraph 11.3 below.
2.4 Net Lease Provision. This is intended to be an absolutely net
lease, meaning that Tenant shall pay all expenses of every type relating to its
operation of the Property during the Lease term or otherwise related to Tenant's
occupancy.
2.5 Adjustment of Monthly Base Rent. On each annual anniversary date
of the Commencement Date of this Lease, Lessor shall increase the monthly base
rent in the same percentage as the increase, if any, in the Consumer Price Index
(the "Index") published by the United States Department of Labor, Bureau of
Labor Statistics, not to exceed an increase of five percent (5%) for any payment
period over the monthly base rent for the immediately prior period. The change
shall be computed by comparing the schedule entitled "U.S. City Average, All
Items, All Urban Consumers, 1982-84=100" for the latest available month
preceding the month in which the Lease term commenced with the same figure for
the same month in the year immediately preceding the commencement of the period
for which the adjustment is computed.
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All comparisons shall be made using Index figures derived from the same base
period and in no event shall this provision operate to decrease the monthly base
rent for the Property below the monthly base rent in place for the period
immediately preceding the adjustment date. If the Index cited above is revised
or discontinued during the Lease term, then the index that is designated to
replace it by the Portland Association of Building Owners and Managers, or its
successor, shall be used, or, if none, a comparable index selected by Landlord
reasonably estimated to reflect the change in earning power of American
consumers.
3. Use of Property.
3.1 Permitted Use. Tenant shall use the Property only for conducting
the following business and for no other purpose without Landlord's written
consent: receiving, warehousing, distribution and related, incidental uses
consistent with applicable laws, ordinances, regulations, covenants, conditions
and restrictions of record affecting the Property.
3.2 Compliance with Laws and Restrictions. In connection with its use,
Tenant shall comply, at its expense, with all applicable laws, regulations and
requirements of all public authorities, and any private restrictions, covenants
and conditions of record affecting the Property, including, without limitation,
those regarding maintenance, operation and use of the Property and equipment and
appliances on the Property (including signs), except that Tenant may withhold
compliance in connection with a good faith dispute so long as Landlord's
property interest is not jeopardized and Landlord is not subject to any criminal
or civil liability with respect thereto. In addition to Tenant's other
responsibilities, Tenant has been and remains solely responsible for the
surveying, monitoring and record keeping and all other work, education,
disclosures and other requirements related to the presence or possible presence
of asbestos or asbestos containing materials in the Property. In so doing,
Tenant shall perform or cause to be performed such disclosure, work and training
and such keep and maintain such records as are required by applicable law
(including, without limitation, OSHA requirements) and, upon demand by Landlord
or its designated lender, shall provide Landlord and, if requested, its
designated lender(s) with true copies of all such surveys, disclosures, reports
and other information and records. In any event, Tenant shall provide Landlord
with true and complete copies of all such materials upon the expiration or
earlier termination of this Lease.
3.3 Hazardous Substances. Tenant shall comply fully with all laws
pertaining to the protection of human health and the environment related to
Tenant's use and occupancy of the Property and all laws regarding the use,
generation, storage, transportation, treatment, disposal or other handling of
hazardous substances. Tenant shall exercise extreme care in handling any
hazardous substances and shall not cause or permit hazardous substances to be
spilled, leaked, disposed of or otherwise released on or about the Property by
Tenant or any invitee or permittee of Tenant. In the event Tenant learns of any
such spill, leak, disposal or release, Tenant shall immediately notify Landlord
of such occurrence and shall remediate (or cause remediation of) such spill,
leak, disposal or release in accordance with applicable law
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within a reasonable time after Tenant discovers the presence of such material,
not to exceed the period required or allowed by applicable law, rule or order.
The term "hazardous substances" is used in its very broadest sense, and refers
to materials which, because of their quantity, concentration, or physical,
chemical, or infectious characteristics, may cause or pose a present or
potential hazard to human health or the environment when improperly handled,
treated, stored, transported, disposed of or otherwise managed. The term shall
include, but is not limited to, all hazardous substances, hazardous materials
and hazardous wastes listed by the U.S. Environmental Protection Agency and the
state in which the Property is located under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), the Resource Conservation and
Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), and the Federal
Water Pollution Control Act (FWPCA) and comparable state statutes. As between
Landlord and Tenant, Tenant shall also be responsible for any existing
contamination of the Property arising during or related to the period of
Tenant's occupancy of the Property prior to the Commencement Date of this Lease.
3.4 No Nuisance. Tenant shall not conduct or permit any activities on
the Property that create a nuisance or violate the applicable covenants,
restrictions and conditions of record affecting the Property.
3.5 Signs. Signs will be designed and constructed in compliance with
applicable city and county sign codes and covenants, conditions and restrictions
affecting the Property.
4. Maintenance and Alterations.
4.1 Tenant's Obligations. Tenant, at its expense, shall keep the
Property and every portion thereof, structural and nonstructural, exposed and
unexposed, including, without limitation, the land, parking areas, sidewalks,
landscaping, Building, improvements, roof, HVAC system, fixtures, and all
personal property, trade fixtures and equipment in good repair, operating
condition, working order and appearance, and shall make all exterior and
interior repairs, renewals, and replacements necessary to that end. Landlord
shall have no obligation to pay for or make any repairs or perform any
maintenance on the Property.
4.2 Alterations. Tenant shall not make any alterations or additions to
the Property that are structural or change the character of the Property or
lessen its value, without Landlord's prior written consent. All alterations
shall be made in a good and workmanlike manner, and in compliance with
applicable laws and building codes.
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5. Taxes; Utilities.
5.1 Personal Property Taxes. Tenant shall pay all personal property
taxes assessed against all personal property, equipment or trade fixtures on the
Property.
5.2 Real Property Taxes and Assessments. Tenant shall pay before
delinquency all taxes, assessments and public charges of every description on
the Property. Taxes and assessments for any partial year at the commencement the
Lease term shall be the responsibility of Tenant and those for any partial tax
year at the expiration of the Lease term shall be prorated between the parties
based on the portion of such tax year relative to the Lease term. Tenant may use
any available installment payment plans for special assessments and, in such
case, shall be obligated to pay only those installments coming due during the
term of this Lease.
5.3 Payment of Utilities Charges. Tenant shall pay all charges for
services and utilities incurred in connection with the use, occupancy, operation
and maintenance of the Property, including, but not limited to, charges for
fuel, water, gas, electricity, sewage disposal, power, refrigeration, air
conditioning, telephone and janitorial services.
6. Liability to Third Persons.
6.1 Liens. Tenant shall pay all claims for work done on or for
services rendered or material furnished to the Property by or for Tenant, and
shall keep the Property free from any liens created by or through Tenant, except
that Tenant may withhold payment of any such claim in connection with a good
faith dispute over the obligation to pay, so long as Landlord's property
interest is not jeopardized and Landlord is not subject to civil or criminal
liability. Subject to paragraph 6.2 below, if Tenant fails to pay such claim or
to discharge any lien within the period (including the cure period) allowed by
this Lease, Landlord may do so and collect such amount as additional rent.
Amounts paid by Landlord hereunder shall bear interest and be repaid by Tenant
as provided in paragraph 11.3 below. Such payment by Landlord shall not
constitute a waiver of any right or remedy Landlord may have because of Tenant's
default.
6.2 Contest by Tenant. If Tenant withholds payment of a claim
described in paragraph 6.1 above and a lien is filed as a result of such
nonpayment, Tenant shall secure the discharge of the lien or deposit with
Landlord cash or sufficient corporate surety bond or other security satisfactory
to Landlord in an amount sufficient to discharge the lien plus any costs,
attorneys' fees and other charges that could accrue as a result of a foreclosure
or sale under the lien and such lien is discharged from the Property before the
earlier to occur of twenty (20) days before foreclosure of the lien and
forty-five (45) days after the lien is filed.
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6.3 Indemnification of Landlord. Tenant shall indemnify, reimburse and
(at Landlord's demand, with counsel satisfactory to and in consultation with
Landlord) defend Landlord for, from and against any actual or alleged claim,
loss, damage, fine, penalty, action, proceedings or other liability arising out
of or related to any action or inaction of Tenant or its invitees, any condition
of the Property which is the responsibility of the Tenant under this Lease, or
any breach of this Lease by Tenant to the extent such does not arise out of and
is not related to the intentional misconduct or gross negligence of Landlord.
For the purposes of this Lease, as between Landlord and Tenant, Tenant shall be
responsible for any and all conditions of the Property and occurrences thereon,
whether or not caused by Tenant and whether or not arising during or before the
term of this Lease to the extent such does not arise out of and is not related
to the intentional misconduct or gross negligence of Landlord.
6.4 Landlord's Liability. Landlord shall have no responsibility or
liability to Tenant for acts of any third party not under the direct control of
Landlord, or for any defect in the Property, or for any interruption or failure
in the supply of utilities or services to the Property.
7. Insurance and Damage.
7.1 Liability Insurance. Tenant shall obtain and continuously
maintain, at its expense, comprehensive general liability insurance with a
combined single limit of not less than $2,000,000, or such other commercially
reasonable limits as Landlord may reasonably require consistent with prudent
insurance practices for similar properties and uses in the Portland metropolitan
area. In the event of any dispute as to the amount of such insurance, the
direction of Landlord's insurance broker or agent shall prevail. Among other
things, such insurance shall be noncontributing, primary and written on an
occurrence, not a claims made, basis and shall name Landlord as an additional
insured and shall contain a contractual liability endorsement referring to this
Lease. The policies shall be in form, amounts and with companies reasonably
acceptable to Landlord. Certificates evidencing such insurance and bearing
endorsements requiring ten (10) days' written notice to Landlord prior to any
change or cancellation shall be furnished to Landlord at or prior to the
Commencement Date.
7.2 Property Damage Insurance. Tenant shall be responsible for
insuring the Property and Building and its personal property, equipment and
trade fixtures located on the Property under an all risk special forms policy of
insurance, or such other coverages and in such amounts and with such
endorsements as may be required by Landlord or Landlord's designated lender
under any loan to which this Lease is subordinated. Neither party shall be
liable to the other for any loss or damage caused by water damage or any of the
risks covered by a standard fire insurance policy with extended coverage
endorsements, and there shall be no subrogated claim by one party's insurance
carrier against the other party arising out of any such loss. Landlord and
Landlord's designated lender (under a standard lender's loss payable endorsement
approved by such lender) shall be named as additional loss payees, as their
interests may appear. The policies shall be in form, amount and with companies
reasonably acceptable to Landlord and
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its designated lender. Tenant will deliver to Landlord and its designated lender
originals of the policies or ACORD 27 certificates of coverage acceptable to
Landlord and its lender, if any, reflecting the requirements of this Lease and
bearing endorsements requiring thirty (30) days' written notice to Landlord and
such lender prior to any cancellation or reduction of coverage.
7.3 Restoration of Damage. During the initial term or any extended or
renewal term of this Lease, in the event of a fire or other casualty causing
damage to the Building or balance of the Property (each a "Casualty"), Tenant
shall immediately notify Landlord. For purposes of this Section, a "Minor
Casualty" means, with respect to the Building, a Casualty which causes damage to
less than fifty percent (50%) (in terms of square footage of floor area) of the
Building and a "Major Casualty" means a Casualty which causes damage to fifty
percent (50%) or more (in terms of square footage of floor area) of the
Building. In the event of a Minor Casualty, so long as Landlord's lender makes
the insurance proceeds available for such work, Tenant shall promptly restore
the damage to the Building and Property. Any restoration, rebuilding or repair
shall be at Tenant's expense and shall comply with the provisions of this Lease,
provided that the insurance proceeds payable with respect to such Casualty shall
be made available to Tenant for such purpose as restoration progresses in a
manner similar to that in which a prudent commercial lender would distribute
loan proceeds for similar work, subject to the requirements of Landlord's
lender. The restored Building and Property shall be at least equal in value,
quality and use to the Building and Property immediately before the Casualty. In
the event of a Major Casualty, Tenant shall, within six (6) months after the
date of the Casualty (or such earlier time required by applicable law) either
terminate this Lease, by written notice to Landlord, or restore or replace the
damaged portion of the Building and balance of the Property. If Tenant elects to
restore or replace the damaged portion of the Building and Property, the
restored or replaced Building and Property shall be at least equal in value,
quality and use to the Building and Property immediately before the Casualty. If
Tenant elects to terminate this Lease, then the insurance proceeds related to
the damage to the Building and Property arising from the Casualty shall be
allocated to Landlord, except for the unamortized cost of Tenant's improvements
as described below. In the event of such termination, all rent and other amounts
payable by Tenant under this Lease shall abate as of the date of casualty. In
the event of termination of this Lease by reason of casualty, Tenant shall be
entitled to recover, in addition to Tenant's other rights under this Lease, an
amount equal to that portion of the Tenant's cost of improvements to the
Building made by Tenant after the date of this Lease (with Landlord's consent,
where required by this Lease) that remains unamortized on Tenant's corporate
books using Tenant's historic accounting method consistently applied to the
extent Landlord recovers insurance proceeds related to such improvements in
excess of amounts due to Landlord's lender, and any prepaid amounts attributable
to periods following the date of such casualty, including, without limitation,
prepaid rent, additional rent and security deposit, if any. There shall be no
abatement of rent or other charges payable by Tenant hereunder in the event of
any Casualty except upon termination of this Lease as provided in this Section
7.3.
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7.4 Repair of Tenant's Property. Repair, replacement or restoration of
any fixtures, equipment and personal property owned by Tenant or otherwise
located on or used in connection with the Property shall be the responsibility
of Tenant.
8. Condemnation.
8.1 Notice/Consent. In the event either Landlord or Tenant receives
any notice of an intended taking affecting the Property or any portion thereof,
or is served with a complaint in condemnation, then such party shall promptly
provide a copy of such notice or complaint to the other party. No sale,
transfer, agreement or settlement with the condemning authority shall be made
without the prior consent of both Landlord and Tenant. For purposes of this
Lease, taking or condemnation includes the sale to a purchaser with the power of
eminent domain in the face of a threat or the probability of the exercise of the
power of eminent domain.
8.2 Right to Termination on Major Taking. If the Property or any
portion thereof is taken as a result of the exercise of the power of eminent
domain, this Lease shall terminate as to such portion which is so taken on the
date the condemning authority takes possession. If Tenant determines in good
faith that the remaining portion does not feasibly permit the economic
continuation of the operation of the Property by Tenant for its intended purpose
(in which case the taking shall be deemed a "Major Taking"), Tenant shall have
the right to terminate this Lease within forty-five (45) days after the full
extent of such intended condemnation is ascertained and fixed. The termination
shall be effective as of the date that the condemning authority takes
possession.
8.3 Allocation of Award on Major Taking. In the event of a Major
Taking giving rise to a termination of this Lease as provided above, the entire
condemnation award shall be allocated to Landlord, except for any award that may
be allocable to permanent improvements to the Building made by Tenant (with
Landlord's consent, where required by this Lease) that remains unamortized on
Tenant's corporate books using Tenant's historic accounting method consistently
applied to the extent Landlord recovers condemnation proceeds related to such
improvements in excess of amounts due to Landlord's lender and any award made to
Tenant expressly for the taking of Tenant's trade fixtures located on the
Property and Tenant shall have no claim for any portion of the unexpired term of
this Lease.
8.4 Minor Taking/Restoration. In the event of a taking other than a
Major Taking giving rise to termination of this Lease as provided above (a
"Minor Taking"), the condemnation award shall be allocated as follows: (a) first
to restore the remainder of the Property to as close to its utility for Tenant's
purposes and condition immediately before such taking as is possible in the
circumstances; (b) then to the reasonable cost of obtaining the condemnation
award; and (c) then to Landlord and Tenant as their respective interests may
appear, provided that Tenant shall not be entitled only to amounts awarded for
taking of its trade fixtures and not to any award related to the unexpired term
of this Lease or the Property.
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8.5 Inverse Condemnation. In the event of any inverse condemnation or
regulatory taking, either party shall be free to pursue its own claim for
damages resulting from such event. Each party shall reasonably cooperate with
the other in connection with the pursuit of any such claim by the other party,
provided neither party shall be obligated to incur unreimbursed out-of-pocket
expenses in so doing.
8.6 Abatement of Rent. In the event of a Minor Taking, rent shall be
abated during any period of restoration and shall be reduced for the remainder
of the Lease term to the extent and in the same proportion as the reduction in
the reasonable rental value of the Property for Tenant's use caused by the
condemnation.
9. Transfers by Tenant.
9.1 Prohibition of Transfer. Except as provided below, Tenant shall
not assign, mortgage, pledge or encumber the Property or Tenant's leasehold
estate, or otherwise transfer any interest in the Property, without the prior
written consent of Landlord. Any attempted transfer without such consent, where
required, shall be null and void and, at the option of Landlord, will be deemed
a default under this Lease. Notwithstanding the above, Tenant shall have the
right, without Landlord's further consent, to assign or otherwise transfer its
interest under this Lease to any person or entity acquiring all or substantially
all of the assets of Tenant or to any person or entity controlled by,
controlling or under common control with Tenant and to sublet to or allow the
use of all or any portion of the Property by third parties, subject to the other
terms and conditions of this Lease; provided that, so long as a lienholder or
security interest holder, or its successor or assigns, holds any lien or
security interest in the Landlord's interest in the Property, this Lease or the
rents accruing hereunder, which lien or security interest documentation requires
such lienholder's approval or consent to any encumbrance, transfer or assignment
of Tenant's interest under this Lease, Tenant shall not encumber, assign or
transfer its interest in this Lease without the express, prior written consent
of such lienholder. In the event that during the term of this Lease, as it may
be renewed or extended, any person hereafter holding both the Landlord's and
Tenant's interest in the Property, this Lease shall not be deemed to have merged
into the fee so long as any lienholder of a lien to which Tenant's interest in
this Lease has been subordinated, or its successor or assigns, holds any lien or
security interest in this Lease or the rents accruing hereunder, without the
express, prior written consent of such lienholder.
9.2 Obligations After Transfer. The giving of such consent in one
instance shall not preclude the need for Tenant to obtain Landlord's consent to
further transfers where required by this Lease. If Tenant is permitted to make
any transfer, Tenant shall not be relieved of its obligations, but shall remain
liable to Landlord for performance of all such obligations.
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10. Tenant Default. The following shall be events of default:
10.1 Payment Default. Tenant fails to make any rent or other payment
under this Lease within ten (10) days after written notice to Tenant from
Landlord that it is past due.
10.2 Default in Other Covenants. Tenant fails to comply with any other
term or condition or fulfill any other obligation of this Lease within thirty
(30) days after written notice by Landlord specifying the nature of the default
with reasonable particularity. If the default is of such a nature that it cannot
be remedied fully within the 30-day period, this requirement shall be satisfied
if Tenant begins correction of the default within the 30-day period and
thereafter proceeds with reasonable diligence and in good faith to effect the
remedy as soon as practicable.
10.3 Insolvency Defaults. Dissolution, termination of existence of
Tenant; the commencement by Tenant of a voluntary case under the federal
bankruptcy laws or under any other federal or state law relating to insolvency
or debtor's relief; the entry of a decree or order for relief against Tenant in
an involuntary case under the federal bankruptcy laws or under any other
applicable federal or state law relating to insolvency or debtor's relief; the
appointment of or the consent by Tenant to the appointment of a receiver,
trustee or custodian of the Property; an assignment for the benefit of creditors
by Tenant.
11. Remedies on Default. Upon default, Landlord may exercise any one or
more of the following remedies, or any other remedy available under applicable
law:
11.1 Retake Possession. Landlord may re-enter and retake possession of
the Property, either by summary proceedings, force, any other applicable action
or proceeding, or otherwise, in conformity with applicable law . Landlord may
use the Property for Landlord's own purposes or relet it upon any reasonable
terms without prejudice to any other remedies that Landlord may have by reason
of Tenant's default. None of these actions will be deemed an acceptance of
surrender by Tenant.
11.2 Damages for Default. Whether or not Landlord retakes possession
or relets the Property, Landlord may recover all damages caused by the default
(including, but not limited to, unpaid rent, attorneys' fees relating to the
default, and costs of reletting reasonably incurred by Landlord). Landlord may
sue periodically to recover damages as they accrue during the remainder of the
Lease term without barring a later action for further damages. Landlord may at
any time bring an action for accrued damages plus damages for the remaining
Lease term equal to the difference between the rent specified in this Lease and
the reasonable rental value of the Property for the remainder of the term,
discounted to the time of judgment at the rate of nine percent (9%) per annum.
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11.3 Cure of Tenant's Default. Without prejudice to any other remedy
for default, Landlord may perform any obligation or make any payment required to
cure a default by Tenant in the event Tenant fails to do so after notice and
opportunity to cure as provided in this Lease. The reasonable cost of such
performance, including attorneys' fees and all disbursements, shall be repaid by
Tenant upon demand, together with interest from the date of expenditure until
fully paid at the rate of nine percent (9%) per annum, but not in any event at a
rate greater than the maximum rate of interest permitted by law.
12. Surrender at Expiration.
12.1 Condition of Property. Upon expiration of the Lease term or
earlier termination on account of default, Tenant shall deliver all keys to
Landlord and surrender the leased Property and each component thereof in good,
safe and serviceable condition and broom clean; provided that ordinary
depreciation and wear from ordinary use for the purpose for which the Property
was let, casualty loss covered by the waiver of subrogation or casualty loss
provisions of this Lease need not be restored, but all repair, restoration and
maintenance for which Tenant is responsible shall be completed to the latest
practical date prior to such surrender.
12.2 Fixtures. Upon the expiration or earlier termination of this
Lease, Tenant shall remove all of its furnishings, furniture and trade fixtures
and restore all damage caused by such removal.
12.3 Holdover. If Tenant does not vacate the Property at the time
required by this Lease, Landlord shall have the option to treat Tenant as a
tenant from month to month, subject to all of the provisions of this Lease
(except that the term will be month to month) or to eject Tenant from the
Property and recover damages caused by wrongful holdover. Failure of Tenant to
remove furniture, furnishings or trade fixtures which Tenant is required to
remove under this Lease shall constitute a failure to vacate to which this
paragraph shall apply if the Tenant's property not removed substantially
interferes with occupancy of the Property by another tenant or with occupancy by
Landlord for any purpose, including preparation for a new tenant. If a
month-to-month tenancy results from a holdover by Tenant, the tenancy shall be
terminable at the end of any monthly rental period on written notice from
Landlord given not less than thirty (30) days prior to the termination date
which shall be specified in the notice. Tenant waives any notice which would
otherwise be provided by law with respect to month-to-month tenancy.
13. Warranty of Quiet Enjoyment. So long as Tenant complies with this
Lease, Tenant shall be entitled to peaceable possession of the Property under
this Lease free from any interference by Landlord and those claiming through
Landlord, subject to the terms and conditions of this Lease.
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14. General Provisions.
14.1 Time of Essence. Time is of the essence of the performance of
each obligation under this Lease.
14.2 Modifications. This Lease may not be modified except by
endorsement in writing attached to this Lease, dated and signed by the parties.
14.3 Nonwaiver. Waiver of performance of any provision of this Lease
shall not be a waiver of nor prejudice the party's right otherwise to require
performance of the same provision or any other provision.
14.4 Succession. Subject to the limitations on transfer of Tenant's
interest, this Lease shall bind and inure to the benefit of the parties, their
respective heirs, successors and assigns.
14.5 Inspection. Landlord and its authorized representatives may enter
at any reasonable time upon reasonable prior written notice (except in the case
of an emergency) to determine Tenant's compliance with this Lease, to make
necessary repairs or, during the final ninety (90) days of a term if Tenant has
not exercised its right to extend the Lease for a subsequent period, to show the
Property to any prospective tenants.
14.6 Attornment. In the event any proceedings are brought for
termination of any ground lease or foreclosure of any mortgage or deed of trust,
or in the event of the exercise of the power of sale under any ground lease,
mortgage or trust deed made by Landlord covering the Property, Tenant shall
attorn to the ground lessor or purchaser upon any such termination, foreclosure
or sale and recognize such ground lessor or purchaser as Landlord under this
Lease.
14.7 Subordination to Ground Leases and Mortgages. This Lease, at
Landlord's option, shall be subordinate to any ground lease hereinafter entered
into by Landlord with respect to the Building or Property, the lien of any trust
deed or mortgage subsequently placed upon the Building or Property, and to any
and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided,
however, that as to any such ground lease and the lien of any such trust deed or
mortgage, Tenant's right to quiet possession of the Property and enjoyment of
its rights under this Lease shall not be disturbed so long as Tenant is not in
default under this Lease. Tenant's agreement to subordinate its interest in this
Lease to any ground lease, mortgage or deed of trust is expressly conditioned
upon Tenant's continued right to quiet enjoyment of the Property and to the
exercise of the other rights granted Tenant under this Lease without
disturbance, interference or reduction, notwithstanding any termination of such
ground lease or the foreclosure or other action, so long as Tenant is not in
material default under this Lease and further provided that Tenant first
receives a written agreement to that effect reasonably
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satisfactory to Tenant from each such party to whom subordination is sought or
that holds an interest superior to this Lease.
14.8 Estoppel Certificates. Within ten (10) days after either party's
(or such party's lender's) written request, the other party shall deliver a
written statement stating the date to which the rent and other charges have been
paid, whether this Lease is unmodified and in full force and effect, and any
other matters that may reasonably be requested regarding the status of the
Lease.
14.9 Notices. Notices under this Lease shall be in writing, effective
when delivered, or, if mailed, effective on the second day after mailed, postage
prepaid to the address for the party stated in this Lease, or to such other
address as either party may specify by notice to the other. Rent shall be
payable to Landlord at the same address and in the same manner.
14.10 Attorneys' Fees. In the event suit or action is instituted to
interpret or enforce the terms of this Lease or to rescind this Lease, the
prevailing party shall be entitled to recover from the other party such sum as
the court may adjudge reasonable as attorneys' fees at trial, on appeal and on
any petition for review or other proceeding, including any bankruptcy case or
proceeding or arbitration, in addition to all other sums provided by law.
14.11 Applicable Law. This Lease shall be construed, applied and
enforced in accordance with the laws of the State of Oregon.
14.12 Prior Agreements. This Lease (including the exhibit(s)
incorporated in this Lease by this reference as though fully set forth in this
Lease) is the entire, final and complete agreement of the parties with respect
to the matters set forth in this Lease, and supersedes and replaces all prior
written and oral agreements between the parties or their representatives with
respect to such matters.
14.13 Validity of Provisions. If any provision in this Lease shall be
invalid, illegal or unenforceable in any respect, the validity of the remaining
provisions contained in this Lease shall not be affected.
14.14 Consents/Actions of Parties. Wherever this Lease calls for the
consent, approval, determination or exercise of judgment by either party, such
shall not be unreasonably withheld, delayed, conditioned, made or exercised. For
the purposes of this Lease, the consent, approval, determination or exercise of
judgment by either of the persons making up Landlord shall be binding upon all
persons making up Landlord.
14.15 Force Majeure. If by reason of force majeure Tenant is unable in
whole or in part to carry out its obligations under this Lease (excluding the
payment of rent or other amount payable by Tenant under this Lease), Tenant
shall not be deemed in default during the
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continuance of such force majeure, and Tenant's time for performance of such
obligation shall be delayed on a day for day basis for the period of such force
majeure, provided written notice thereof is given to Landlord. The term "force
majeure" as used herein shall mean the following: unusually adverse weather;
acts of God; acts of public enemies; injunctions; strikes; orders or restraints
of the United States of America or the State of Oregon, or their respective
departments, agencies or officials, or any civil or military authority;
insurrections; riots; or any other similar cause or event not reasonably within
the control of Tenant and to the extent not resulting from Tenant's negligence.
Tenant agrees, however, to proceed with all reasonable dispatch to perform its
obligations under this Lease after the cause or causes preventing Tenant from
carrying out its obligations under this Lease cease to exist.
14.16 Memorandum of Lease. At the option of either party, the parties
shall execute a memorandum of this Lease, in recordable form, for the purpose of
placing third parties on notice of Tenant's lease of the Property.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date first above written.
LANDLORD: TIMOTHY P. BOYLE
-----------------------------------------
Timothy P. Boyle
GERTRUDE BOYLE
-----------------------------------------
Gertrude Boyle
TENANT: COLUMBIA SPORTSWEAR COMPANY,
an Oregon corporation
By:
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Title:
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