EXHIBIT 10.5
THIS LEASE AGREEMENT made and entered into by and between XXXXXX XXXXXXX
hereinafter referred to as "Landlord," and ATHLETIC SUPPLY OF DALLAS, INC.
hereinafter referred to as "Tenant",
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord the
following described premises (hereinafter referred to as the "demised premises")
situated within the County of Dallas, State of Texas:
Xxx 0, Xxxxxxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxx, Xxxxx, also known as
10810, 10812, and 00000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000.
together with all rights, privileges, easements and appurtenances belonging to
or in any way pertaining to the demised premises and together with the building
and other improvements now situated or to be erected upon the demised premises.
TO HAVE AND TO HOLD the same for a term of six (6) years beginning on
November 1, 1986, upon the following terms, conditions and covenants:
1. RENT. Tenant agrees to pay the Principal REALTOR(R) named herein,
without offset or deduction, for the account of Landlord rent for the demised
premises at the rate of $5.00 per square foot ($99,000 per year) for the first 3
years of the lease term and $5.50 per square foot ($108,900 per year) for the
second 3 years of the lease* one such monthly installment shall be due and
payable on or before the beginning date of this lease, and a like monthly
installment shall be due and payable on or before the first day of each
succeeding calendar month during the terms hereof; provided that, in the event
the term hereof shall commence or end during a calendar month, the rent for any
fractional calendar month following the commencement or preceding the end of the
term of this lease shall be pro rated by days. (If percentage rent is to be
payable to Landlord, refer to Exhibit A attached to this lease. In such case
Exhibit A shall be incorporated into and become a part of this lease when
physically attached hereto).
Tenant has deposited with Landlord, upon delivery of this lease, Eight
Thousand Two Hundred Fifty Dollars and No/100 ($8,250.00) to be applied as
follows:
(a) $8,250.00 for rent for November, 1986 Tenant or Tenant's
covenants and obligations under this lease. The security deposit is not an
advance payment of rental or the full measure of liquidated damages in case of
default by Tenant. Upon the occurrence of any event of default, Landlord may,
from time to time, without prejudice to any other remedy provided herein or
provided by law, use the security deposit to the extent necessary to make good
any arrears of rent and any other damage, injury, expense or liability caused to
Landlord by such event of default. Following any such application of the
security deposit, Tenant shall pay to Landlord, on demand, the amount so applied
in order to restore the security deposit to its original amount. If Tenant is
not in default, hereunder, any remaining balance of such deposit shall be
returned by Landlord to Tenant upon expiration or termination of this lease.
__________________
* Term, payable in equal monthly installments in advance.
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2. ACCEPTANCE OF PREMISES.
Tenant acknowledges that it has fully inspected the demised premises and
accepts the demised premises, and any buildings and improvements situated
thereon, as suitable for the purposes for which the same are leased in their
present condition, except
(If this lease provides for a building to be constructed for Tenant, refer to
Exhibit B attached to this lease. In such case this paragraph 2 shall become
inapplicable, and Exhibit B shall be incorporated into and become a part of this
lease when physically attached hereto.)
3. USE OF PREMISES.
The demised premises shall be used and occupied only for the purpose of
mail order facilities for a retail sporting goods company, and not otherwise.
Tenant shall at its own expense obtain any and all governmental licenses and
permits necessary for such use.
4. COMPLIANCE WITH LAW.
Tenant shall comply with all governmental laws, ordinances and regulations
applicable to the use of the demised premises, and shall promptly comply with
all governmental orders and directives for the correction, prevention and
abatement of nuisances in or upon, or connected with the demised premises, all
at Tenant's sole expense.
5. REAL ESTATE TAXES.
(a) Tenant agrees to pay before they become delinquent all taxes (both
general and special), assessments or governmental charges of any kind and nature
whatsoever (hereinafter collectively referred to as the "taxes"), levied or
assessed against the premises or any part thereof. Tenant shall furnish to
Landlord not later than twenty (20) days before the date any such taxes become
delinquent, official receipts of the appropriate taxing authority or other
evidence satisfactory to Landlord evidencing payment thereof. If Tenant shall
fail to pay any taxes, assessments, or governmental charges required to be paid
by Tenant hereunder, in addition to any other remedies provided herein, Landlord
may if it so elects pay such taxes, assessments, and governmental charges. Any
sums so paid by Landlord shall be deemed to be so much additional rental owing
by Tenant to Landlord and due and payable on written demand by Landlord together
with interest thereon at the rate of ten percent (10%) per annum from date paid
by Landlord to date of repayment by Tenant.
(b) All real estate taxes and assessments on the demised premises owned by
Landlord shall be prorated between Landlord and Tenant with respect to the tax
years in which this lease commences or terminates. Tenant shall pay that part
of the real estate taxes attributable to the portion of the tax year covered by
this lease.
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(c) In the event the premises constitute a portion of a multiple occupancy
building, in lieu of Tenant paying the "taxes" as above provided, Landlord
agrees to pay before they become delinquent all "taxes" lawfully levied or
assessed against such building and the grounds, parking areas, driveways and
alleys around the said building, and Tenant agrees to pay to Landlord upon
written demand the amount of Tenant's "proportional share" of all such "taxes"
paid by landlord. Tenant's "proportionate share", as used throughout this
lease, shall mean a fraction, the numerator of which is the space occupied by
Tenant and the denominator of which is the entire gross space contained in the
building.
(d) Tenant may, alone or along with any other tenants of said building, at
its or their sole cost and expense, in its or their own name(s) and/or in the
name of the Landlord, dispute and contest any "taxes" by appropriate proceedings
diligently conducted in good faith, but only after Tenant and all other tenants,
if any, joining with Tenant in such contest have deposited with Landlord the
amount so contested and unpaid, or their proportionate shares thereof as the
case may be, which shall be held by Landlord without obligations for interest
until the termination of the proceedings, at which time the amount(s) deposited
shall be applied by Landlord toward the payment of the items held valid (plus
any court costs, interest, penalties and other liabilities associated with the
proceedings), and Tenant's share of any excess shall be returned to Tenant.
Tenant further agrees to pay to Landlord upon demand Tenant's share (as among
all tenants who participated in the contest) of all court costs, interest,
penalties and other liabilities relating to such proceedings. Tenant hereby
indemnifies and agrees to hold harmless the Landlord from and against any cost,
damage or expense, including attorney's fees, in connection with any such
proceedings.
(e) If at any time during the term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments, levies or charges levied, assessed or imposed on real estate and
the improvements thereon there shall be levied, assessed or imposed on Landlord
a capital levy or other tax directly on the rents received therefrom and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents or the present or any future building or buildings on the
premises, then all such taxes, assessments, levies or charges, or the part
thereof measured or based, shall be deemed to be included within the term
"taxes" for the purpose hereof.
6. REPAIRS AND MAINTENANCE.
(a) Tenant shall at its own cost and expense keep, maintain and take good
care of the premises and make all necessary repairs thereto, interior and
exterior, structural and non-structural, ordinary and extraordinary, and shall
suffer no waste or nuisance; provided, however, that the cost of maintenance and
repair of any common party wall (any wall, divider, partition or any other
structure separating the premises from any adjacent premises occupied by other
tenants) shall be shared equally by Tenant and the Tenant occupying adjacent
premises. Tenant shall not damage any party wall or disturb the integrity and
support provided by any party wall and shall, at its cost and expense, promptly
repair any damage or injury to any party wall caused by Tenant or its employees,
agents or invitees. At the end of the term or other termination of this lease,
Tenant shall deliver the premises with all improvements thereon in good repair
and condition, reasonable wear and tear only excepted.
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(b) Tenant shall at its own cost and expense care for the grounds around
the buildings on the premises, including the regular mowing of grass, care of
shrubs and general landscaping, and maintenance of the parking areas, driveways,
alleys and shall maintain the whole of the premises in a clean and sanitary
condition,
(c) In the event the premises constitute a portion of a multiple occupancy
building, Tenant and its employees, customers, and licensees shall have the
nonexclusive right to use, in common with the other parties occupying said
building, the parking areas, driveways and alleys adjacent to said building,
subject to such reasonable rules and regulations as Landlord may from time to
time prescribe, and Tenant shall, in lieu of the obligations set forth under
subparagraph (b) above, be liable for its proportionate share of the cost and
expense of the care for the grounds around the said building, including but not
limited to, the mowing of grass, care of shrubs, general landscaping, and
maintenance of parking areas, driveways and alleys. Tenant shall at Landlord's
option either (i) pay when due its proportionate share of such costs and
expenses along with the other tenants of the building directly to the persons
performing such work, or (ii) reimburse Landlord upon demand for the amount of
its proportionate share of such costs and expenses in the event Landlord elects
to perform or cause to be performed such work.
(d) In the event the premises constitute a portion of a multiple occupancy
building, Landlord shall be responsible for coordinating any repairs and other
maintenance of any rail tracks serving or to serve the building, and Tenant
shall reimburse Landlord for Tenant's proportionate share of the costs of such
repairs and maintenance and any other sums specified in any agreement to which
Landlord is a party respecting such tracks.
(e) In the event Tenant shall fail to maintain the demised premises or any
paving, landscaping or railroad siding in accordance with this paragraph 6,
Landlord shall have the right (but not the obligation) to cause all repairs or
other maintenance to be made and the reasonable costs therefore expended by
Landlord shall be paid by Tenant on written demand.
7. ALTERATIONS, ADDITIONS AND IMPROVEMENTS.
Tenant shall not create any openings in the roof or exterior walls, or make
any alterations, additions or improvements to the demised premises without prior
written consent of Landlord. Consent for non-structural alterations, additions
or improvements shall not be unreasonably withheld by Landlord. Tenant shall
have the right to erect or install shelves, bins, machinery, air conditions or
heating equipment and trade fixtures, provided that Tenant complies with all
applicable governmental laws, ordinances and regulations. At the expiration or
termination of this lease, Tenant shall have the right to remove such items so
installed, provided Tenant is not in default at the time of such removal and
provided further that Tenant shall, at the time of removal of such items, repair
in a good and workmanlike manner any damage caused by installation or removal
thereof.
Tenant shall pay for all costs incurred or arising out of alterations,
additions or improvements in or to the demised premises and shall not permit a
mechanic's or materialmen's lien to be asserted against the demised premises.
Upon request by Landlord, Tenant shall deliver
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to Landlord proof of payment reasonably satisfactory to Landlord of all costs
incurred or arising out of any such alterations, additions or improvements.
All alternations, additions or improvements in or to the demised premises
shall become the property of Landlord at the expiration or termination of this
lease, however, Landlord may direct the removal of alterations, additions or
improvements by giving written notice to Tenant prior to the expiration or
termination of this lease. At the direction of Landlord, Tenant shall promptly
remove all alterations, additions and improvements and any other property placed
in the demised premises by Tenant and Tenant shall repair in good and
workmanlike manner any damage caused by such removal.
8. SIGNS.
Tenants shall not place or affix any signs or other objects upon or to the
roof or exterior walls of the demises premises or paint or otherwise deface the
exterior walls of the demised premises without the prior written consent of
Landlord. Any signs installed by Tenant shall conform with applicable laws and
deed and other restrictions. Tenant shall remove all signs at the termination
of this least and shall repair any damage and close any holes caused or revealed
by such removal.
9. INSURANCE, FIRE AND CASUALTY DAMAGE.
(a) Landlord agrees to maintain insurance covering the building of which
the demised premises are a part in an amount not less than 90% (or such greater
percentage as may be necessary to comply with the provisions of any co-insurance
clauses of the policy) of the "replacement cost" thereof as such term is defined
in the Replacement Cost Endorsement to be attached thereto, insuring against the
perils of Fire, Lightning, Extended Coverage, Vandalism and Malicious Mischief,
extended by Special Extended Coverage Endorsement to insure against all other
Risks of Direct Physical Loss, such coverages and endorsements to be as defined,
provided and limited in the standard bureau forms prescribed by the insurance
regulatory authority for the State in which the demised premises are situated
for use by insurance companies admitted in such state for the writing of such
insurance on risks located within such state. Subject to the provisions of
subparagraphs 9 (b) and 9 (e) below, such insurance shall be for the sole
benefit of Landlord and under its sole control. Tenant agrees to pay Landlord's
cost of maintaining such insurance on said building (or, in the event the
premises constitute a portion of a multiple occupancy building, Tenant's full
proportionate share of such cost). Said payments shall be made to Landlord
within ten days after presentation to Tenant of Landlords statement setting
forth the amount due. Any payment to be made pursuant to this subparagraph (a)
with respect to the year in which this lease commences or terminates shall bear
the same ratio to the payment which would be required to be made for the full
year as that part of such year covered by the term of this lease bears to a full
year.
(b) If the buildings situated upon the premises should be damaged or
destroyed by any peril covered by the insurance to be provided by Landlord under
subparagraph 9 (a) above, Tenant shall give immediate notice thereof to Landlord
and Landlord shall at its sole cost and expense thereupon proceed with
reasonable diligence to rebuild and repair such buildings to
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substantially the condition in which they existed prior to such damage or
destruction, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, mixtures, additions or other improvements
which may have been placed in, on or about the premises by Tenant and except
that Tenant shall pay to Landlord upon demand any applicable deductible amounts
specified under Landlord's insurance. The rent payable hereunder shall in no
event xxxxx by reason of any damage or destruction.
(c) If the buildings situated upon the premises should be damaged or
destroyed by a casualty other than a peril covered by the insurance to be
provided by Landlord under subparagraph 9(a) above, or if any other improvements
situated on the demised promises should be in any manner damaged or destroyed,
Tenant shall at its sole cost and expense thereupon proceed with reasonable
diligence to rebuild and -repair such buildings and/or improvements to
substantially the condition in which they existed prior to such damage or
destruction, subject to Landlord's approval of the plans and specifications for
such rebuilding and repairing, which approval shall not be unreasonably
withheld. Tenant's obligation hereunder shall not include destruction of the
premises by war, riot, civil disobedience, or flood.
(d) Tenant covenants and agrees to maintain insurance on all alterations,
additions, partitions and improvements erected by, or on behalf of, Tenant in,
on or about the demised premises in an amount not less than 90% (or such greater
percentage as may be necessary to comply with the provisions of any co-insurance
clause of the policy) of the "replacement cost" thereof as such term is defined
in the Replacement Cost Endorsement to be attached thereto. Such insurance
shall insure against the perils and be in form, including stipulated
endorsements, as provided in subparagraph 9 (b) hereof. Such insurance shall be
for the sole benefit of Tenant and under its sole control. All such policies
shall be procured by Tenant from responsible insurance companies satisfactory to
Landlord. certified copies of policies of such insurance, together with receipt
evidencing payment of premiums therefor shall be delivered to Landlord prior to
the commencement date of this lease. Not less than fifteen (15) days prior to
the expiration date of any such policies, Certified copies of renewals thereof
(bearing notations evidencing this payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be canceled or changed to reduce insurance provided thereby.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises required that the insurance proceeds be applied to such indebtedness
then the Landlord shall have the right to terminate this lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
10. WAIVER OF SUBROGATION.
Each party hereto waives any and every claim which arises or may arise in
its favor against the other party hereto during the term of this lease or any
renewal or extension thereof for any and all loss of, or damage to, any of its
property located within or upon, or constituting a part of, the demised
premises, which loss or damage is covered by valid and collectible fire and
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extended coverage insurance policies, to the extent that such loss or damage is
recoverable under such insurance policies. Such mutual waivers shall be in
addition to, and not in limitation or derogation of, any other, waiver or
release contained in this lease with respect to any loss of, or damage to,
property of the parties hereto. Inasmuch as such mutual waivers will preclude
the assignment of any aforesaid claim by way of subrogation or otherwise to an
insurance company (or any other person), each party hereby agrees immediately to
give to each insurance company which has issued to its policies of fire and
extended coverage insurance, written notice of the terms of such mutual waivers,
and to cause such insurance policies to be properly endorsed, if necessary to
prevent the invalidation of such insurance coverages by reason of such waivers.
Landlord and its authorized agents shall have the right, during normal
business hours, to enter the demised premises (a) to inspect the general
condition and state of repair thereof, (b) to make repairs required or permitted
under this lease, (c) to show the premises to any prospective tenant or
purchaser or (d) for any other reasonable purpose.
During the final 150 days of the lease term, Landlord and its authorized
agents shall have the right to erect and maintain on or about the demised
premises customary signs advertising the property for lease or for sale.
12. UTILITY SERVICES.
Tenant shall pay the cost of all utility services, including but not
limited to initial connection charges, all charges for gas, water and
electricity used on the demised premises, and for all electric lights, lamps and
tubes.
13. ASSIGNMENT AND SUBLEASING.
Tenant shall not, without the prior written consent of Landlord, assign
this least or sublet the demised or any portion thereof. Any assignment or
subletting shall be expressly subject to all terms and provisions of this lease,
including the provisions of paragraph 3 pertaining to the use of the demised
premises. In the event of any assignment or subletting, Tenant shall remain
fully liable for the full performance of all Tenant's obligations under this
lease. Tenant shall not assign his rights hereunder or sublet the premises
without first obtaining a written agreement from assignee or sublessee whereby
assignee or sublessee agrees to be bound by the terms of this lease. No such
assignment or subletting shall constitute a novation. In the event of the
occurrence of an event of default while the demised premises are assigned or
sublet, Landlord, in addition to any other remedies provided herein or by law,
may at Landlord's option, collect directly from such assignee or subtenant all
rents becoming due under such assignment of subletting and apply such rent
against any sums due to Landlord hereunder. No direct collection by Landlord
from any such assignee or subtenant shall release Tenant from the performance of
its obligations hereunder.
14. INDEMNITY AND PUBLIC LIABILITY INSURANCE.
(a) Landlord, shall not be liable to Tenant or Tenant's employees, agents,
patrons or visitors, or to any other person whomsoever, for, any injury to
person or damage to property on
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or about the premises caused by the negligence or misconduct of Tenant, its
agents, servants or employees, or of any other person entering upon the premises
under express or implied invitation of Tenant, or caused by the buildings and
improvements located on the premises becoming out of repair, or caused by
leakage of gas, oil, water or steam or by electricity emanating from the
premises, or due to any cause whatsoever, and Tenant agrees to indemnify
Landlord and hold it harmless from any loss, expenses or claims including
attorney's fees, arising out of any such damage or injury; except injury to
persons or negligence of the Landlord.
(b) Tenant shall procure and maintain throughout the term of this lease a
policy or policies of insurance, at its sole cost and expense, insuring both
Landlord and Tenant against all claims, demands, or actions arising out of or in
connection with: (i) the premises; (ii) the condition of the premises, the
limits of such policy or policies to be in the amount of not less than $300,000
per person and $1,000,000 per occurrence in respect of injury to persons
(including death), and in the amount of not less than $50,000 per occurrence in
respect to property damage or destruction, including loss of use thereof. All
such policies, shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing of premiums therefor, shall be delivered to payment Landlord
prior to the commencement date of this lease. Not less than fifteen (15) days
prior to the expiration date of any such policies, certified copies of the
renewals thereof (bearing notations evidencing the payment of renewal premiums)
shall be delivered to Landlord. Such policies shall further provide that no
less than thirty (30) days written notice shall be given to Landlord before such
policy may be canceled or changed to reduce insurance provided thereby.
(c) If Tenant should fail to comply with the foregoing requirements
relating to insurance, Landlord may obtain such insurance, and Tenant shall pay
to Landlord on demand, as additional rental hereunder, the premium cost thereof
plus interest at the rate of ten percent (10%) per annum from the date of
payment by Landlord until repaid by Tenant.
15. CONDEMNATION.
A. If, during the term of this lease or any extension or renewal thereof,
all or a substantial part of the demised premises should be taken for any public
or quasi-public use under any governmental law, ordinance regulation or by right
of eminent domain, or should be sold to the condemnity authority under threat of
a condemnation, this lease shall terminate and the rent shall be abated during
the unexpired portion of this lease, effective from the date of taking of the
demised premises by the condemnity authority.
B. If less than a substantial part of the demised premises is taken for
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain, or is sold to the condemnity authority under
threat of condemnation, Landlord, at its option, may by written notice terminate
this lease or shall forthwith at its sole expense restore and reconstruct the
buildings and improvements (other than leasehold improvements made by Tenant or
any assignee, subtenant or other occupant of the demised premises) situated on
the demised premises in order to make the same reasonably tenantable and
suitable for the uses for which the demised
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premises are leased as defined in paragraph 3. The rent payable hereunder during
the unexpired portion of this lease shall be adjusted equitable.
C. Landlord and Tenant shall be entitled to receive and retain such
separate awards and portions of lump sum awards as may be allocated to their
respective interests in any condemnation proceedings. The termination of this
lease shall not affect the rights of the respective parties to such awards.
16. HOLDING OVER.
Should Tenant, or any of its successors in interest fail to surrender the
demised premises or any part thereof, on the expiration of the term of this
lease, such holding over shall constitute a tenancy from month to month, at a
monthly rental equal to 150% of the rent paid for the last month of the term of
this lease unless otherwise agreed in writing.
17. DEFAULT BY TENANT.
The following events shall be deemed to be events of default under this
lease;
A. Failure of Tenant to pay any installment of the rent or other sum
payable to Landlord hereunder on the date that same is due and such failure
shall continue for a period of 10 days.
B. Failure of Tenant to comply with any term, condition or covenant of
this lease, other than the payment of rent or other sum of money, and such
failure shall not be cured within 30 days after written notice thereof to
Tenant.
C. Insolvency, the making of a transfer in fraud of creditors, or the
making of an assignment for the benefit of creditors by Tenant or any guarantor
of Tenant obligations.
D. Filing of a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the United
States or any State thereof by Tenant or any guarantor of Tenant's obligations
or adjudication as a bankrupt or insolvent in proceedings filed against Tenant
or such guarantor.
E. Appointment of a receiver or trustee for all or substantially all of
the assets of Tenant or any guarantor of Tenant's obligation hereunder.
F. Abandonment by Tenant of any substantial portion of the demised
premises or cessation of the use of the demised premises for the purpose leased.
18. REMEDIES OF LANDLORD:
Upon the occurrence of any of the events of default listed in Section 19,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
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A. Terminate this lease, in which event Tenant shall immediately
surrender the demised premises to Landlord. If Tenant fails to so surrender such
premises, Landlord may, without prejudice to any other remedy which it may have
for possession of the demised premises or arrearages in rent, enter upon and
take possession of the demised premises and expel or remove Tenant and any other
person who may be occupying such premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim for damages
therefor. Tenant shall pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether through
inability to relet the demised premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the demised premises, by force if
necessary, without terminating this lease and without being liable for
prosecution or for any claim for damages therefor, and expel or remove Tenant
and any other person who may be occupying such premises or any part thereof.
Landlord may relet the demised premises and receive the rent therefor. Tenant
agrees to pay to Landlord monthly or on demand from time to time any deficiency
that may arise by reason of any such reletting. In determining the amount of
such deficiency, the brokerage commission, attorney's fees, remodeling expenses.
and other costs of reletting shall be subtracted from the amount of rent
received under such reletting.
C. Enter upon the demised premises, by force, if necessary, without
terminating this lease and without being liable for any prosecution or for any
claim for damages therefor and do whatever Tenant is obligated to do under the
terms of this lease. Tenant agrees to pay Landlord on demand for expenses which
Landlord may incur in this effecting compliance with Tenant's obligations under
this lease, together with interest thereon at the rate of 10% per annum from the
date expended until paid. Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by negligence of
Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, conditions and covenants herein
contained,
19. LANDLORDS LIEN.
In addition to the statutory Landlord's lien, Tenant hereby grants to
Landlord a security interest to secure payment of all rent and other sums of
money becoming due hereunder from Tenant, upon all goods, wares, equipment,
fixtures, furniture and other personal property of Tenant situated in or upon
the demised premises, together with the proceeds from the sale or lease thereof.
Such property shall not be removed without the consent of Landlord until all
arrearages in rent and other sums of money then due to Landlord hereunder shall
first have been paid and discharged. Upon the occurrence of any event of
default, Landlord may, in addition to any other remedies provided herein or by
law, enter upon the demised premises and take
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possession of any and all goods, wares, equipment, fixtures, furniture and other
personal property of Tenant situated on the premises without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any such sale. Unless otherwise required by law, notice
to Tenant of such sale shall be deemed sufficient if given in the manner
prescribed in this lease at least 10 days before the time of the sale. Any
public sale made under this paragraph shall be deemed to have been conducted in
a commercially reasonable manner if held in the demised premises or where the
property is located, after the time, place and method of sale and a general
description of the types of property to be sold have been advertised in a daily
newspaper published in Dallas County, Texas, for five consecutive days before
the date of the sale. Landlord or its assigns may purchase at a public sale and,
unless prohibited by law, at a private sale. The proceeds from any disposition
dealt with in this paragraph, less any and all expenses connected with the
taking of possession, holding and selling of the property (including reasonable
attorney's fees and legal expenses), shall be applied as a credit against the
indebtedness secured by the security interest granted herein. Any surplus shall
be paid to Tenant or as otherwise required by law; Tenant shall pay any
deficiencies forthwith. Upon request by Landlord, Tenant agrees to execute and
deliver to Landlord a financing statement in form sufficient to perfect the
security interest of Landlord in the aforementioned property and proceeds
thereof under the provisions of the Uniform Commercial Code in force in the
State of Texas. The statutory lien for rent is expressly reserved; the security
interest herein granted is in addition and supplementary thereto.
20. ATTORNEYS' FEES.
If, on account of any breach or default by Landlord or Tenant of their
respective obligations under this lease, it shall become necessary for the other
to employ an attorney to enforce or defend any of its rights or remedies
hereunder, and should such party prevail, it shall be entitled to any reasonable
attorneys' fees incurred in such connection.
21. QUIET ENJOYMENT.
Landlord warrants that it has full right and power to execute and perform
this lease and to grant the estate demised herein and that Tenant, on payment of
rent and performing the covenants herein contained, shall peaceably and quietly
have, hold and enjoy the demised premises during the full term of this lease and
any extension or renewal hereof; provided, however, that Tenant accepts this
lease subject and subordinate to any recorded mortgage, deed of trust or other
lien presently existing upon the demised premises. Landlord is hereby
irrevocably vested with full power and authority to subordinate Tenant's
interest hereunder to any mortgage, deed of trust or other lien hereafter placed
on the demised premises, and Tenant agrees upon demand to execute such further
instruments subordinating this lease as Landlord may request, provided such
further subordination shall be upon the express condition that this lease shall
be recognized by the mortgagee and that the rights of Tenant shall remain in
full force and effect during the term of this lease so long as Tenant shall
continue to perform all of the covenants of this lease.
11
22. WAIVER OF DEFAULT.
No waiver by the parties hereto of any default or breach of any term,
condition or covenant of this lease shall be deemed to be waiver of any
subsequent default or breach of the same or any other term, condition or
covenant contained herein.
23. REALTOR'S(R) COMMISSIONS:
24. CERTIFICATE OF OCCUPANCY.
Tenant may, prior to the commencement of the term of this lease, apply for
a Certificate of Occupancy to be issued by the municipality in which the demised
premises are located, but this lease shall not be contingent upon issuance
thereof. Nothing herein contained shall obligate Landlord to install any
additional electrical wiring, plumbing or plumbing fixtures which are not
presently existing in the demised premises, or which have not been expressly
agreed upon by Landlord in writing.
25. FORCE MAJEURE.
In the event performance by Landlord of any term, condition or covenant in
this lease is delayed or prevented by any Act of God, strike, lockout, shortage
of material or labor restriction by any governmental authority, civil riot,
flood and any other cause not within the control of Landlord, the period for
performance of such term, condition or covenant shall be extended for a period
equal to the period Landlord is so delayed or hindered.
26. EXHIBITS.
All exhibits, attachments, annexed instruments and addenda referred to
herein shall be considered a part hereof for all purposes with the same force
and effect as if copied at full length herein.
27. USE OF LANGUAGE.
Words of any gender used in this lease shall be held and construed to
include any other gender and words in the singular shall be held to include the
plural, unless the context otherwise requires.
28. CAPTIONS.
The captions or headings of paragraphs in this lease are inserted for
convenience only, and shall not be considered in construing the provisions
hereof if any question of intent should arise.
29. SUCCESSORS.
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The terms, conditions and covenants contained in this lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto and their
respective successors in interest and legal representatives except as otherwise
herein expressly provided. All rights, powers, privileges, immunities and
duties of Landlord under this lease, including, but not limited to, any notices
required or permitted to be delivered by Landlord to Tenant hereunder, may, at
Landlord's option, be exercised or performed by Landlord's agent or attorney.
30. SUBLEASE.
If this lease is in fact a sublease, Tenant accepts this lease subject to
all of the terms and conditions of the lease under which Landlord holds the
demised premises as lessee. Tenant covenants that it will do no act or thing
which would constitute a violation by Landlord of its obligation under such
lease.
31. SEVERABILITY.
If any provision in this lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this lease shall not be affected thereby.
32. NOTICES.
Any notice or document required or permitted to be delivered hereunder may
be delivered in person or shall be deemed to be delivered, whether actually
received or not, when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the parties
at the addresses indicated below, or at such other addresses as may have
theretofore been specified by written notice delivered in accordance herewith.
LANDLORD:XXXXXX XXXXXXX TENANT:Athletic Supply of Dallas, Inc.
00000 Xxx Xxxxx Xxxxx 0000 Xxxxxxx Xxxx
Xxxxxx, Xxxx 00000 Xxxxxx, Xxxxx 00000
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33. SPECIAL CONDITIONS.
EXECUTED the day of 19 .
------ -----------------, ------
ATTEST
LANDLORD:XXXXXX XXXXXXX
-----------------------------
-----------------------------
By
-----------------------------
Title
ATTEST
:Athletic Supply of Dallas, Inc.
-----------------------------
SECRETARY
----------------------------------
By XXXXX X. XXXXXXXXXX, III
Chairman of the Board
----------------------------------
Title
14
Amendment
---------
The following will amend the lease agreement between Athletic Supply of
Dallas, Inc., (Tenant) and Xxxxxx Xxxxxxx (Landlord) and or assigns, dated
November 1, 1986.
Term of lease is extended until May 15, 1996.
Paragraph 1 Rent shall be $4.75 per square foot ($95,000 per year) for
the first two years and then $5.00 per square foot ($100,000
per year) for the last three years.
Paragraph 4 Is amended by the replacement with a comma of the period
following the word "expense" in the last line, and the
addition following the comma so placed, of the phrase
"except where such orders and directives shall involve
structural repairs, which shall be the sole expense of the
Landlord".
Paragraph 6(a) Is amended by striking the word "structural" following the
comma after the word exterior, and by adding the phrase "it
is understood that the landlord shall bear sole
responsibility and expense for structural repairs to the
premises".
Paragraph 7 Is amended by inserting the words "non-structural" to the
first sentence of the second paragraph between the words
"of" and "alterations".
In addition to the above amendments, it is expressly agreed between the
parties that no part of the equipment, fixtures, and machinery of the Tenant
shall be deemed to be improvements or betterments to the landlords property.
Such equipment and fixtures include, but not limited to, racks, shelves,
conveyors, computer floors and supplementary air conditioning for the computer
room, moveable partitions, furniture and packaging equipment, and loading and
unloading equipment. It will be the Tenants responsibility to pay for all
repairs and restoration to the building for damages caused by the removal of any
racks, conveyors, computer floors etc.
The maintenance and repairs of all Heating and Air Conditioning will be
paid by tenant.
1
All other terms and conditions of this agreement will remain in effect.
----------------------------------
Landlord
Xxxxxx Xxxxxxx
----------------------------------
Tenant
Xxxxxx X. Xxxxxxxx
Chairman of the Board
Athletic Supply
May 31, 1991
2
Amendment
---------
As approved unanimously at the January 12, 1996, Board of Directors
meeting, the following will amend the lease agreement between Athletic Supply of
Dallas, Inc., (Tenant) and Xxxxxx Xxxxxxx (Landlord) and or assigns, dated
November 1, 1986 and amended May 31, 1991.
Term of lease is extended until May 15, 2000.
Paragraph 1 Rent shall be $5.00 per square foot ($100,000 per year) for the
term of the lease.
All other terms and conditions of this agreement will remain in effect.
-----------------------------------
Landlord
Xxxx Xxxxxxx
-----------------------------------
Tenant
Xxxxx X. Xxxxxxx III
Vice President - Finance
Athletic Supply of Dallas, Inc.
March 15, 1996
