INDUSTRIAL LEASE AGREEMENT
THIS LEASE is entered into this 22nd day of August, 2000, in consideration
of the covenants and undertakings of each of the parties hereto by and between
Xxxx Investco GP, a Tennessee general partnership, hereinafter referred to as
"Landlord", and Xxxxxxx Sports, Inc., , a Delaware corporation, hereinafter
referred to as "Tenant";
WITNESSETH:
Landlord owns, operates or controls certain real property located in the
City of Xxxxxxxx, County of Shelby and State of Tennessee located at 0000
Xxxxxxx Xxxx (the "Property"); and
WHEREAS, Tenant desires to lease from Landlord space within the development
or building described above, which is more particularly shown on Exhibit A
hereto and is more particularly described in Part 1 below.
NOW, THEREFORE, Landlord and Tenant agree as follows:
PART 1
PREMISES
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In consideration of the rent and other agreements contained in this Lease,
Landlord leases to Tenant and Tenant rents from Landlord the premises
(hereinafter the "Premises") described as follows:
Located at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx. The Premises contain
approximately 205,277 square feet of area.
The Premises are designated on Exhibit A hereto for the purpose of setting
forth the configuration and approximate dimensions of the space and shall be
improved or otherwise prepared for occupancy by Tenant in accordance with
Exhibit C which sets out any work improvements to be implemented by Landlord and
the cost, if any, to Tenant. In the absence of any specific requirements set
forth on Exhibit C, Tenant shall be deemed to have accepted the Premises "as
is", except for provisions specifically noted elsewhere in this Lease as to
acceptance of the space upon Landlord's delivery of the Premises to Tenant.
PART 2
TERM
----
Subject to the terms and conditions contained herein, this Lease shall be
effective on the date of complete execution hereof by Landlord and Tenant, but
the term of this Lease and the payment of Base Rental and Additional Charges (as
defined in Exhibit B) shall begin on the commencement date (the "Commencement
Date") which shall be the earlier of (i) November 1, 2000, (ii) the date on
which Tenant occupies the Premises, or (iii) fifteen (15) days after Landlord
tenders delivery of the Premises to Tenant. Tender of delivery shall have
occurred on the date Landlord notifies Tenant that Landlord has either (i)
substantially completed any improvements to be implemented by Landlord pursuant
to Exhibit C subject to minor punchlist items, or (ii) determined that
Landlord's work pursuant to Exhibit C has progressed sufficiently such that
Tenant may commence and complete Tenant's work while portions of Landlord's work
are still being completed. If the Commencement Date occurs on the first day of a
month, the term shall expire without notice on the last day of the previous
calendar month ten (10) years hence, and if the Commencement Date occurs on a
day other than the first day of a month, the term shall expire without notice on
the last day of the calendar month in which the Commencement Date occurs ten
(10) years hence.
Any access by Tenant to the Premises prior to the Commencement Date shall be
upon all of the terms, covenants and conditions of this Lease, except only the
payment of Base Rental and Additional Charges. Tenant shall pay all utility
charges for their portion of the building related to the Premises which accrue
from and after Landlord's tender of possession.
Landlord and Tenant agree that, upon the demand of the other party, each
shall execute an amendment to this Lease, in recordable form, setting forth the
Commencement Date and the termination date of the Lease term.
PART 3
RENT, TAXES AND INSURANCE
-------------------------
Tenant covenants and agrees that without demand, notice or set off, Tenant
shall pay to Landlord minimum annual rental (hereinafter the "Base Rental") in
the amounts as follows:
Base Rental shall be payable in advance on or before the first day of each
month throughout the term of this Lease without deduction, abatement or set off
except where otherwise provided for in this Lease in the following amounts:
YEARS ANNUAL RENTAL MONTHLY RENTAL
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1-5 ($4.00 psf) $821,108.00 $68,425.67
5-10 ($4.20 psf) $862,163.40 $71,846.95
Additionally, Tenant shall pay to Landlord its Proportionate Share (as
defined in the General Lease Provisions) of Real Estate Taxes and Assessments
(as defined in the General Lease Provisions) and shall pay to Landlord its
Proportionate Share of Landlord's annual insurance premiums which amounts shall
be paid as provided in Article 1 of the General Lease Provisions.
All rental payments and payments of Additional Charges hereunder shall be
sent to:
Xxxx Investco GP
Attn.: Accounts Receivable Department
P. O. Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000-0000
or to such other addresses as Landlord may direct in writing from time to time.
PART 4
USE AND OPERATION
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The Premises shall be opened for business, kept open for business and used
continuously only for the following use: general office and
warehouse/distribution, light assembly of apparel.
PART 5
NOTICES
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All notices required or provided for under this Lease shall be given in the
manner as prescribed by the notice requirements of the General Lease Provisions,
addressed to the following addresses:
To Landlord: To Tenant:
Xxxx Investco XX Xxxxxxx Sports, Inc.
x/x Xxxx Xxxxxxxxxxx 0000 Xxxxxxx Lake Drive
000 Xxxxxxx Xxxxx, Xxxxx 0000 Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000 Xxxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxx ATTN: Xxxx Xxxx
or to such other addresses as Landlord or Tenant may direct in writing from time
to time.
PART 6
REAL ESTATE AGENT
-----------------
This Lease was negotiated by Xxxx Realty Company, L.L.C., represented by
Xxxxxx X. Xxxxxx acting as agent for Landlord and Trezevant Properties
represented by Xxx Xxxxxxxx acting as agents for Tenant. Landlord agrees to pay
Trezevant Properties a commission in accordance with the agreement between
Landlord and Trezevant Properties.
PART 7
OPTION TO RENEW
---------------
It is agreed and understood that Tenant, if not in default and if open and
operating, shall have the right to extend this Lease Agreement for one
additional period of five (5) years at the base
rental of $4.41 per square foot for the additional term.. If Tenant shall elect
to extend, Tenant shall give to Landlord not less than twelve (12) months'
written notice prior to the expiration of the original term of this Lease
Agreement.
PART 8
OPTION TO EXPAND
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Tenant, if not in default and is continuously operating for business in the
Premises and, subject to existing Tenant's rights, shall be entitled to exercise
a one time option to expand into the space located adjacent to the Premises
("Adjacent Space"). Should Tenant elect to exercise this option, it should give
Landlord no less than sixty (60) days prior written notice of its intent. The
Base Rental for the Adjacent Space shall be at the then Fair Market rate but in
no event less than the then Base Rental currently being paid by Tenant. This
option cannot be exercised by Tenant within the last three (3) years of any
term. If within thirty (30) days after receipt of such notice, Landlord and
Tenant have not agreed upon the Fair Market Rental rate for the respective term,
then Tenant and Landlord shall each appoint a knowledgeable real estate broker
or appraiser familiar with commercial property of the type in the Memphis
metropolitan area. The two appointees shall designate a third real estate broker
or appraiser and the majority decision of the three shall be binding upon Tenant
and Landlord, but under no circumstances shall the rental during any extended
term be less than the rental paid during the preceding term. The cost of
arbitration shall be borne equally by Landlord and Tenant.
PART 9
ENTIRE AGREEMENT
This Lease includes the Lease Agreement, Exhibit A (drawing or description
of the Property showing the general location of the Premises), Exhibit B
(General Lease Provisions), Exhibit C (which delineates the construction
requirements of the parties, if any) and Exhibit D (sign criteria). The
foregoing constitute all of the agreements and conditions made between the
parties hereto, and no representations or statements claimed to have been made
and not herein contained shall modify this Lease in any way.
IN TESTIMONY WHEREOF the above named Landlord and the above named Tenant
have executed this and four (4) other original instruments of identical year and
date, on the day and year set forth on page 1 of this Lease.
LANDLORD: Xxxx Investco GP
By: URCO, INC. (Managing Partner)
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Vice President
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx, Vice President
TENANT: Xxxxxxx Sports, Inc.
By: /s/ Xxxx Xxxx
-----------------------------------------
Xxxx Xxxx, Chief Operating Officer
Exhibits: A. Site Plan and/or Floor Plan
B. General Lease Provisions
C. Construction Exhibit (if applicable)
D. Sign Criteria
TABLE OF CONTENTS
TO
EXHIBIT B TO
INDUSTRIAL LEASE AGREEMENT
ARTICLE 1 RENT AND OTHER PAYMENTS 2
Section 1. Base Rental 2
Section 2. Additional Charges 2
(i) Common Areas Charges 2
(ii) Real Estate Taxes and Assessments 3
(iii) Other Taxes 3
(iv) Insurance 3
(v) Tenant's Proportionate Share 3
(vi) Payment 3
Section 0.Xxxxxxxx Deposit 4
ARTICLE 2 USE AND OPERATION 4
Section 1. Permitted Use 4
Section 2. Parking, Etc 5
Section 3. Lawful and Moral Use 5
Section 4. Additional Tenant Covenants 5
ARTICLE 3 ASSIGNMENT AND SUBLETTING 5
ARTICLE 4 ALTERATIONS, INSTALLATIONS AND REMOVAL OF IMPROVEMENTS
BY TENANT 6
ARTICLE 5 INSURANCE AND RELATED MATTERS 6
Section 1. Loss or Damage to Tenant's Property 6
Section 2. Tenant's Required Insurance 6
Section 3. Landlord's Insurance 7
Section 4. Waiver of Recovery 7
Section 5. Hold Harmless and Indemnification 7
Section 6. Invalidation of Insurance/Increased Premiums 7
ARTICLE 6 REPAIRS 7
ARTICLE 7 MECHANIC'S LIEN 8
ARTICLE 8 DAMAGE OR DESTRUCTION BY FIRE 8
ARTICLE 9 RIGHT OF ENTRY, ETC 8
ARTICLE 10 DEFAULT 9
ARTICLE 11 INSOLVENCY OF TENANT 10
ARTICLE 12 DELIVERY AT END OF LEASE 10
ARTICLE 13 EXTENSION; PARTIAL PAYMENT; NO ACCORD AND SATISFACTION 10
ARTICLE 14 SUBORDINATION; ATTORNMENT; ESTOPPEL; LANDLORD'S
COVENANT AS TO TITLE 10
ARTICLE 15 GRAPHICS 11
ARTICLE 16 CONDEMNATION 11
ARTICLE 17 UTILITIES 11
ARTICLE 18 ENVIRONMENTAL MATTERS 11
ARTICLE 19 FIRE PROTECTION 12
ARTICLE 20 PERSONAL LIABILITY 12
ARTICLE 21 NOTICES 13
ARTICLE 22 RULES AND REGULATIONS 13
ARTICLE 23 REAL ESTATE AGENT 14
ARTICLE 24 COVENANTS RUN TO HEIRS 14
ARTICLE 25 SHORT FORM LEASE 14
ARTICLE 26 CORPORATE TENANTS 14
ARTICLE 27 ENTIRE AGREEMENT 14
EXHIBIT B TO
INDUSTRIAL LEASE AGREEMENT
GENERAL LEASE PROVISIONS
ARTICLE 1
RENT AND OTHER PAYMENTS
Section 1. BASE RENTAL
Tenant shall, without demand or notice, pay to Landlord minimum annual
rental ("Base Rental") in the amount as is set forth in the Lease Agreement
which amounts shall be paid in equal monthly installments (or in the manner
prescribed by Part 3 of the Lease to which this is an Exhibit) without
deduction, abatement or setoff in advance on or before the first day of each
month throughout the term of this Lease(1). Base Rental for any partial calendar
month shall be prorated at a daily rate based upon the number of days in the
respective calendar year. Tenant shall not prepay any Base Rental more than one
(1) month in advance of its due date.
Section 2. ADDITIONAL CHARGES
In addition to the Base Rental Tenant agrees, commencing on the
Commencement Date, to pay to Landlord, at the times hereinafter set forth,
without deduction, setoff or abatement, the following additional charges, as
additional rent, the nonpayment of which shall be subject to all provisions of
this Lease and of law as to default in the payment of rent or money (hereinafter
referred to as the "Additional Charges"):
(i) COMMON AREAS CHARGES. Tenant shall pay Tenant's Proportionate
Share (as hereinafter defined) of Landlord's total annual costs and expenses
("Common Areas Charges") of operating, maintaining, repairing, upgrading and
supervising the Common Areas (as hereinafter defined) which costs and expenses
shall be calculated on an accrual basis and include, but not be limited to,
cleaning, gardening and landscaping the Common Areas including the replacement
and installation of landscaping; sanitary control to and for the Common Areas;
any security or traffic control forces or equipment provided for the Common
Areas; repairs and replacements of the paving, curbs, walkways, and all other
Common Areas and facilities; line painting; attending the parking areas; any
governmental charges, surcharges, fees, or taxes on the parking areas or on cars
parking therein; costs of all utilities used or consumed in the Common Areas
including, without limitation, electricity, water and gas consumed in parking
areas and other Common Areas as well as sewer fees and sprinkler monitoring
fees; repair and/or replacement of on-site gas lines, water lines, sanitary
sewer lines, storm sewer lines, drainage facilities, light poles, bulbs, and any
other utility lines, pipes, wires, facilities and related appurtenances serving
the Common Areas or more than one tenant premises; any changes made in the
Common Areas to comply with legal requirements; inspection; depreciation of
equipment and facilities used in connection with the Common Areas; amortization
of charges which Landlord elects to charge over more than one year which
Landlord could have charged in one year; costs of signs, sign maintenance and
sound systems; all personal property and similar taxes; the cost of all Common
Areas equipment, machinery, tools, supplies and other personal property and
facilities and replacements thereof; the cost of personnel (including benefits
and taxes) to implement such services; the cost of any contracts entered into
for the performance of any such services or functions; and similar services and
functions; plus(1) (15%) of all of the foregoing costs and expenses for
Landlord's administration expenses. The Common Areas shall be defined as
landscaping, paving, curbs, walkways, driveways, parking areas, and any other
areas not reserved for the use of a single tenant.(3)
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1(1)..."except for as otherwise provided herein"....
2(2)..."ten percent (10%)"....
3(3)..."If Tenant ever occupies the entire Building of which the Premises is a
part, Tenant shall have the option to maintain Common Areas of the
Building."....
4(4)...."Notwithstanding the above, Common Area Charges shall not
include the following: a) costs of alterations of any premises or Common Areas
in the Building for other tenants of the Building; b) costs of capital
improvements to the building, except that operating expenses shall include; i)
the cost of any capital improvement completed after the first calendar year of
the term which is primarily intended to reduce any component of operating
expenses; ii) and the cost of paving lot resurfacing amortized over the useful
life of the improvement as reasonably determined by Landlord; c) the cost of any
capital improvement which is made by Landlord to keep the land or building in
compliance with all governmental rules and regulations first enacted or made
applicable to the building following the Commencement Date, excluding those
specifically associated with bringing the building into compliance with the
Americans with Disabilities Act and Clean Air Act as they exist on the date this
Lease is executed, in each case as evenly amortized over the useful life of each
such capital improvement; d) interest and principal payments on mortgages; e)
ground rental payments; f) leasing commissions or fees; g) cost of repairs,
alterations or replacements caused by casualty losses or other events to the
extent actually insure or self-insured against by Landlord or required to be
insured against by Landlord pursuant to this Lease, provided that the deductible
portion of any such costs under any insurance policy shall be included in
operating expenses; h) cost of repairs or alterations or replacements caused by
the exercise of rights of eminent domain; i) depreciation and amortization of
any improvements except as specifically set forth above; j) legal fees and court
(ii) REAL ESTATE TAXES AND ASSESSMENTS. Tenant shall pay to Landlord
Tenant's Proportionate Share (as hereinafter defined) of the real property taxes
and Assessments (general and special, ordinary and extraordinary, foreseen and
unforeseen) levied against the land, building and improvements constituting the
Property in which the Premises are located or property of which the Premises are
a part or property included in Landlord's real property tax and assessment bills
for the building in which the Premises are located ("Real Property Taxes and
Assessments").
"Real Property Taxes and Assessments" shall include all costs and fees
including consultant's and similar fees incurred by Landlord in contesting or
defending taxes and assessments or negotiating with public authorities. A copy
of Landlord's tax xxxx shall be conclusive evidence of the amount of Real
Property Taxes and Assessments assessed or levied.
(iii) OTHER TAXES. Should any governmental authority having
jurisdiction impose a tax and/or assessment of any kind or nature upon, against,
or with respect to the rentals or other payments payable to Landlord or on the
gross receipts of Landlord either by way of substitution for all or any part of
the Real Property Taxes and Assessments levied or assessed against such land,
buildings and improvements, or in addition thereto, then such shall be deemed to
be a Real Property Tax and Assessment and Tenant shall be obligated to pay said
tax. Tenant shall pay said tax directly to the taxing authority or, if Landlord
is obligated to pay the taxing authority, Tenant shall pay to Landlord Tenant's
Proportionate Share thereof.
(iv) INSURANCE. Tenant shall pay to Landlord Tenant's Proportionate
Share of Landlord's annual premiums for insurance carried by Landlord in
accordance with the requirements of Article 5 of these General Lease Provisions
for "all risk" insurance coverage; commercial general liability insurance; rent
loss insurance; boiler and machinery insurance; and all other insurance and the
loss deductibles maintained by Landlord for the building and Common Areas from
time to time.
(v) TENANT'S PROPORTIONATE SHARE. In the event the Premises are a part
of a building with multiple tenants, "Tenant's Proportionate Share" shall be
defined as being a fraction, the numerator of which is the number of leaseable
square feet in the Premises and the denominator of which is the leasable square
footage of the area within the building in which the Premises are located.
(vi) PAYMENT. The foregoing amounts, unless the amount and time for
payment are fixed, may be separately invoiced by Landlord and in such event
shall be paid by Tenant within 5 fifteen (15) days after the date of such
invoice. Said amounts may be estimated by Landlord in which event Landlord shall
notify Tenant from time to time of Landlord's estimate. Tenant shall pay said
estimate (as said estimate may be revised) in advance on the first day of each
and every calendar month with Tenant's Base Rental without further notice. When
Landlord has calculated the exact amount actually payable by Tenant for each
item, Landlord shall notify Tenant. Any deficiency in payment by Tenant for any
item shall be paid by Tenant to Landlord upon receipt of the notice in respect
to such item. Any overpayment by Tenant shall be credited against the next
ensuing installments of Landlord's estimate of that item.
In the event of a dispute regarding payment, the burden of proof of
payment of any monthly installments of Base Rental or Additional Charges
hereunder shall be upon Tenant.
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costs other than those incurred in any dispute regarding application of
governmental requirements to the general occupancy, maintenance and operation of
the building; k) any costs including any management fee paid to affiliates of
Landlord or Landlord's management agent which are in excess of customary market
amounts; l) extra costs of insurance or alterations of the extent such extra
costs are attributable to any special use of the building, by or special
condition of the building due to the acts of Landlord, Landlord's management
agent, a tenant other than Tenant or any other occupan______t; m) all material
costs, interest and fines arising by reason of violation by Landlord of any
contract or legal requirement applicable to the building; n) land trust fees; o)
salaries of all Landlord employee's above the level of property manager; p) any
and all expenses associated with marketing and/or leasing the Property. If any
operational expense, though paid in one year, relates to more than one calendar
year, such operating expense shall be proportionately allocated among such
related calendar years. If any operating e____At; m) all material costs,
interest and fines arising by reason of violation by Landlord of any contract or
legal requirement applicable to the building; n) land trust fees; o) salaries of
all Landlord employee's above the level of property manager; p) any and all
expenses associated with marketing and/or leasing the Property. If any
operational expense, though paid in one year, relates to more than one calendar
year, such operating expense shall be proportionately allocated among such
related calendar years. If any operating expense relates to more than on
building or parcel or property on the Property, such operating expense shall be
allocated among all such buildings or parcels of property to which it
relates."... (5)...."thirty (30)"...
All Base Rental, Additional Charges and other amounts required to be
paid shall be paid to Landlord, at the notice address as is set forth in the
Lease Agreement or at such other place or places as Landlord may from time to
time designate in writing. Tenant shall pay all such amounts when due and
payable, without any setoff, deduction or prior demand therefor whatsoever. If
Tenant shall fail to pay any amounts required to be paid under the terms of this
Lease(6) within (7) days after the same is due, Tenant shall be obligated to pay
a late payment charge equal to the greater of One Hundred Dollars ($100.00)
or(8) of any payment not paid when due to reimburse Landlord for its additional
administrative costs. In addition any Base Rental or Additional Charge which is
not paid within (9) Days after the same is due shall bear interest at a rate
equal to the lesser of (i)(10) per annum or (ii) the highest contract rate
allowable by the state in which the Premises are located from the first day due
until paid. Any assessments pursuant to this Section which shall become due
shall be payable, unless otherwise provided herein, with the next installment of
Base Rental. Any payment by Tenant or acceptance by Landlord of a lesser amount
than shall be due from Tenant to Landlord shall be treated as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
Section 3. SECURITY DEPOSIT.
ARTICLE 2
USE AND OPERATION
Section 1. PERMITTED USE
The Premises shall be opened for business, kept open for business and,
except as provided in Part 4 of the Lease Agreement, used continuously only for
a general office and for the storage and distribution of products manufactured,
warehoused or distributed by Tenant, none of which shall be Hazardous Substances
(as defined in Article 18 hereof) or otherwise create a risk which may adversely
affect Landlord's insurance or impose additional risks to the building in which
the Premises are located. Tenant agrees that it will not use or permit or suffer
the Premises or any part thereof to be used for any business or purpose other
than specifically defined and permitted by the Lease Agreement or this
paragraph.
Tenant will obtain all permits required for its occupancy other than
building permits which are required in connection with improvements which
Landlord is required to make pursuant to this Lease Agreement.(11)
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6(6)...."after Tenant has received written notice"....
7(7)...."fifteen (15)"...
8(8)...."five percent (5%)"....
9(9)...."thirty (30)"....
10(10).."ten percent (10%)"....
11(11).."Notwithstanding the foregoing, Landlord agrees to be responsible for
any initial demands made by Shelby County for a Use and Occupancy Permit with
respect to Tenant's initial occupancy of the Premises prior to any Tenant's
improvements therein. In the event Shelby County makes any demands in accordance
with the foregoing with respect to Tenant's initial occupancy of the Premises
prior to any Tenant improvements to the Premises, Landlord will satisfy same at
Landlord's expense. Tenant acknowledges that Landlord is delivering the Premises
to Tenant in its "As Is", "Where Is" condition with all operative systems
serving the Premises in good working order as of the delivery date of the
Premises by Landlord to Tenant.".....
Section 2. PARKING, ETC.
Landlord shall provide areas during the term of this Lease for parking
and other uses, in common with others, by Tenant's customers and employees,
together with the right of ingress to and egress from the Premises over the
Common Areas. Landlord reserves the right to establish and impose from time to
time reasonable rules and regulations as to the occupancy of the Premises and
uniform operation of the building in which the Premises are located and may
require that delivery trucks or similar vehicles be parked in designated areas.
In no event will disabled vehicles be kept within the Common Areas and in no
event will the Common Areas be used for vehicle repair.
Section 3. LAWFUL AND MORAL USE.
The Premises shall, during the term of this Lease, be used only and
exclusively for lawful and moral purposes, and no part of the Premises or
improvements thereon shall be used in any manner whatsoever for any purposes in
violation of the ordinances and laws of any governmental authority having
jurisdiction over the Premises, and Tenant will save and hold the Landlord
harmless from any such violations.
Tenant, at Tenant's expense, shall comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of federal, state,
county and municipal authorities, now in force or which may hereafter be in
force, which shall impose any duty upon Landlord or Tenant with respect to the
use, occupation or alteration of the Premises.
Section 4. ADDITIONAL TENANT COVENANTS.
Tenant, at Tenant's expense, shall keep the plate glass within the
Premises clean and clear of any debris and litter; keep any garbage, trash,
rubbish or refuse in rat-proof containers within the interior of the Premises
until removed, have such garbage, trash, rubbish and refuse removed on a regular
basis; keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the Premises; keep any vestibules or entries to the Premises
and the sidewalks, driveways, parking areas, rear service areas and loading
areas and other areas adjacent to the Premises free of all trash, refuse or
other articles; not permit any accumulations of garbage, trash, refuse, or
rubbish within or outside of the Premises; remove its personal property from the
Common Areas; not cause or permit objectionable odors to emanate from the
Premises; and not distribute handbills, printed materials, or advertising
outside its Premises or within the Common Areas or solicit business in the
parking areas or other Common Areas.
ARTICLE 3
ASSIGNMENT AND SUBLETTING
This Lease shall not be assigned, encumbered or in any other manner
transferred by Tenant, voluntarily or involuntarily, by operation of law or
otherwise, nor shall the Premises or any part thereof be sublet, licensed,
granted or used or occupied by anyone other than Tenant without first obtaining
the written consent of Landlord12
A change in the control of Tenant or any guarantor of this Lease whose
stock is not publicly held and traded shall be deemed to be an assignment for
all purposes of this Lease 13
In the event that Landlord consents to said subletting or assignment,
any amounts received by or payable to Tenant (other than the reasonable value
paid to Tenant in repayment for trade fixtures and other personal property of
Tenant) above the amounts payable by Tenant to Landlord hereunder, shall be
deemed "real estate profit" and shall be paid to Landlord.
If Landlord permits any such assignment, change or subletting, Tenant
agrees to pay Landlord's reasonable legal fees in connection therewith. If
Tenant shall at any time during the term of this Lease sublet all or any part of
said Premises or assign this Lease, Tenant shall nevertheless remain fully
liable under all of the terms, covenants, and conditions of this Lease. If this
Lease is assigned, or if the Premises or any part thereof are subleased or
occupied by anybody other than Tenant, Landlord may collect from the assignee,
sublessee or occupant any rent or other charges payable by Tenant under this
Lease and apply the amount collected to the rent and other charges herein
reserved, but such collection by Landlord shall not be deemed an acceptance of
the assignee, sublessee or occupant as a tenant nor a release of Tenant from the
performance by Tenant under this Lease.
Notwithstanding Landlord's consent to any assignment, subletting,
occupation or use by another person, any subsequent assignment, subletting,
occupation or use by another person shall require Landlord's prior written
consent 14.
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12(12)...."which consent shall not be unreasonably withheld"....
13(13)...."however, all parties agree that a change in ownership or control due
to any entity acquiring the stock of Tenant, shall not be deemed an assignment,
even if such acquisition creates a new private company."....
14(14)...."which shall not be unreasonably withheld."....
ARTICLE 4
ALTERATIONS, INSTALLATIONS AND
REMOVAL OF IMPROVEMENTS BY TENANT
Tenant shall have no right during the continuance of this Lease to
make any interior alterations, changes and improvements to the Premises without
first obtaining the prior written consent of Landlord15. In the event Landlord
consents to any interior alterations, Tenant shall in such event (i) pay all
costs and expenses thereof; (ii) make such alterations, changes and improvements
in a good and workmanlike manner; (iii) obtain all required permits; and (iv) do
all work in conformity with all legal requirements. Tenant shall hold Landlord
harmless from any penalty, damage or injury of whatever kind arising out of
failure of Tenant's work to so conform.
Landlord's approval of the plans, specifications and working drawings
for any of Tenant's alterations shall create no responsibility or liability on
the part of Landlord for their completeness, design sufficiency, or compliance
with all laws, rules and regulations of governmental authorities or agencies.
If Landlord shall send a notice to Tenant not later than thirty (30)
days after the later of (i) the expiration date of the Term or (ii) the date on
which Tenant completely vacates the Premises, Tenant within three (3) business
days thereafter shall remove any alterations, changes and improvements made to
the Premises by Tenant with or without the consent of Landlord and shall repair
and restore the Premises to its condition prior to the making of such
alterations, changes and/or improvements. Any alterations, changes and
improvements which Landlord does not require to be removed shall remain the
property of Landlord without compensation by Landlord to Tenant therefor.
Except as otherwise provided, all furnishings, trade fixtures and
other equipment installed in the Premises by Tenant shall remain the property of
Tenant and shall be removed by Tenant upon the termination of this Lease. Tenant
shall repair any damage caused by the removal of such property and the
restoration of the Premises provided in the paragraph above. Notwithstanding the
foregoing, all light fixtures, all carpeting, linoleum or other floor covering,
nailed, cemented or otherwise adhesively attached to the Premises, sinks and
vanities and the complete electrical ((16) emergency generators, if
any), plumbing, air conditioning and heating systems, including ducts,
diffusers, grills and control systems, shall be and remain in the Premises at
all times for the benefit of Landlord unless Landlord shall direct Tenant to
remove any of the foregoing within the period set forth in the preceding
paragraph. Tenant shall pay before delinquencies all taxes assessed against
Tenant's fixtures, trade fixtures, equipment and leasehold improvements placed
in or about the Premises.
ARTICLE 5
INSURANCE AND RELATED MATTERS
Section 1. LOSS OR DAMAGE TO TENANT'S PROPERTY.
Tenant acknowledges that Landlord does not insure Tenant's personal
property, fixtures, improvements or equipment. Accordingly, in order to
contractually allocate risk of loss relative to all of such property Tenant
agrees that it shall store its property in and shall occupy the Premises and use
all other portions of the property of which the Premises are a part, at its own
risk. Irrespective of fault, Landlord and Landlord's agents and employees shall
not be liable for, and Tenant waives all claims against them for, loss or damage
to Tenant's business or damage to person(s) or property sustained by Tenant or
any person claiming by, through or under Tenant resulting from any accident or
occurrence in or upon the Premises or the building of which they are a part, or
any part thereof 17. The provisions of this section shall also apply to the
period prior to the commencement of the Lease term where any permission is given
by Landlord to Tenant for Tenant to perform any of its work and install any of
its fixtures or otherwise prior to commencement of the Lease term.
Section 2. TENANT'S REQUIRED INSURANCE.
Tenant shall, during the term, at its sole expense obtain and keep in
force, (i) commercial general liability insurance coverage, personal injury,
bodily injury, broad form property damage, operations hazard, owner's protective
coverage, contractual liability and products and completed operations liability
in limits not less than $1,000,000.00 inclusive (the aggregate limits of such
insurance to apply specifically to the Premises and not to multiple locations)
with Landlord and , if required by Landlord, mortgagees of Landlord, each named
as an additional insured as their respective interests may appear; and (ii) "All
Risk" Physical Damage Insurance for Tenant's property (personal property,
fixtures and leasehold improvements in excess of building standard) in or on the
Premises for the full insurable value thereof, including an endorsement
providing for "loss of income" coverage. Tenant shall furnish evidence
satisfactory to Landlord of the existence of and maintenance of such insurance
prior to or contemporaneous with the commencement of the term and thereafter on
the date on which such policy is required to be renewed. Tenant shall obtain a
written obligation on the part of each insurance company to notify Landlord at
least thirty (30) days prior to the cancellation of such insurance. Tenant shall
also obtain worker's compensation insurance covering all person employed,
directly or indirectly, in connection with any finish work performed by Tenant
or any repair or alteration authorized by this Lease or consented to by
Landlord, as required by the law of the state where the Premises are located.
Landlord reserves the right to require that Tenant increase the limits
of such insurance required pursuant to the paragraph above in such amounts as
Landlord determines prudent within generally accepted business practices for
comparable
-------------------------
15(15)...."which consent shall not be unreasonably withheld"....
16(16)...."excluding"....
17(17)....", unless such losses are due to Landlord's or Landlord's agent's
negligence."....
businesses. All policies required to be maintained by Tenant pursuant to this
Article shall be issued in a form acceptable to Landlord by insurance companies
having and maintaining at least an A-X rating in the most currently available
"Best's Rating Guide," and qualified to do business in the state in which the
Premises are located. In no event shall such policy or policies provide for a
deductible amount for any type of coverage in excess of $1,000.00.
Section 3. LANDLORD'S INSURANCE.
Landlord shall, during the term, obtain and keep in force commercial
general liability insurance coverage and "All Risk" Property Damage Insurance
covering the building of which the Premises are a part (including exterior
walls, downspouts, gutters and roof) excluding all improvements and fixtures
required to be insured by Tenant pursuant to Article 5, Section 2, in such
amounts and with such deductible amounts as(18). Landlord may also insure such
other risks as Landlord may from time to time determine and with any such
deductibles as Landlord may from time to time determine. Landlord's insurance
cost for maintaining the insurance coverage referred to in this Article shall be
subject to reimbursement by Tenant to the extent provided elsewhere in this
Lease.
Section 4. WAIVER OF RECOVERY.
Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant each hereby waives any and all rights of recovery, claim, action or cause
of action, against the other, its agents, officers or employees, for any loss or
damage that may occur to the Premises, or any improvements thereto, or the
building in which the Premises are located, or any personal property of such
party therein, by reason of fire, the elements, or any other cause which is
insured against or is required to be insured against under the terms of the "All
Risk" Property Damage Insurance coverage referred to in Sections 2 and 3 above,
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers or employees. Landlord's and Tenant's insurance policies
shall each contain a waiver of subrogation.
Section 5. HOLD HARMLESS AND INDEMNIFICATION.
Irrespective of the adequacy of said insurance, Tenant shall indemnify
and save Landlord free and harmless from all liability for injury or damage to
any person(s), firm(s), corporation(s) or property occurring on or about the
Premises, or arising out of any accident or any other occurrence on the Premises
or due directly or indirectly to the use of said Premises or any part thereof by
Tenant, its agents, subtenants or assignees (including all costs, expenses,
court reporter fees, expert fees and attorney fees incurred by Landlord in
defense of any such claims).(19)
Section 6. INVALIDATION OF INSURANCE/INCREASED PREMIUMS.
Tenant shall not do anything or engage in any activity or permit any
condition to exist on or about the Premises which will cause the cancellation of
or invalidate any insurance which Landlord may now or hereafter have on the
building in which the Premises are located or the Premises. Further, Tenant
shall not permit any condition or activity which may result in increased
premiums payable by Landlord.
ARTICLE 6
REPAIRS
Except as otherwise provided in this Lease, within a reasonable time
after Landlord receives written notice from Tenant of the necessity thereof,
Landlord will repair the roof, structural portions and exterior of the Premises
(exclusive of doors, plate glass or entrances which shall be maintained and
repaired by Tenant); provided, however, that Tenant, not Landlord, shall at
Tenant's sole cost and expense make all repairs and replacements necessitated by
reason of (a) the neglect, fault or default of Tenant, or Tenant's agents,
employees, contractors, invitees, or customers and (b) the structural and
exterior work done or installed by Tenant. Further, and notwithstanding anything
in this Lease to the contrary, Tenant shall make all repairs and replacements to
the property which Landlord is required to maintain which are required as the
result of repairs, alterations, other improvements or installations made by
Tenant or any occupant of the Premises or the agents of any of them.
All maintenance, repairs and replacements to the Premises not
specifically the obligation of Landlord under this Lease shall be made by
Tenant. Tenant, at Tenant's expense, shall make all repairs and replacements to
keep and maintain the interior of the Premises in good condition and repair,
including, but not limited to, the heating, electrical, air conditioning
(whether located within or without the Premises), sprinkler and other mechanical
installations serving the Premises, the plumbing and sewer systems serving the
Premises, the exterior and interior portions of all doors including door checks
and hardware, and all windows, frames and glass; and Tenant shall promptly
replace all broken and cracked glass. Any replacements Tenant is required to
make under this Lease shall be of equal or better quality, type and style as the
item being replaced. Tenant shall be responsible for all painting and decorating
of the Premises. Tenant will maintain and keep in good condition and repair all
------------------
18(18)...."are prudent and in accordance with the practices of comparable
businesses.".... 1919)... "except for injury or damage resulting from Landlord's
negligence or intentional misconduct or that of its employees or agents."
(20)Irrespective of the adequacy of said insurance, Landlord shall indemnify and
hold harmless Tenant from all liability for injury or damage to any person(s) or
property occurring on or about the Common Areas or arising out of any accident
in the Common Areas (including all costs, expenses and reasonable attorney's
fees incurred by Tenant in defense of any such claims), unless such injury or
damage results from the negligence or intentional misconduct of Tenant, its
employees, agents, subtenants, assignees or contractors.
structural and exterior work done or installed by Tenant. Tenant shall not
permit any waste, damage or injury to the Premises and shall, at its sole cost
and expense, xxxxx any nuisance upon, or emanating from, the Premises, keep the
Premises neat, clean and in an orderly and sanitary condition free of offensive
odors, vermin, rodents, bugs, insects and other pests. Tenant shall keep in full
force and effect a maintenance contract with a reputable heating contractor
providing for at least(20) inspection and maintenance of the heating and air
conditioning systems serving the Premises. Upon request Tenant shall provide or
require its contractor to provide copies of all maintenance and service records
to Landlord. Tenant shall obtain approval from Landlord of its heating and air
conditioning contractor and, additionally, shall obtain approval of any other
contractor which may require access to the roof for the purpose of
implementation of any repairs or improvements. Tenant shall in no event
perforate or do any work on or affecting the roof of the Premises without
Landlord's prior written consent and if consented to, shall only use contractors
approved by Landlord.
ARTICLE 7
MECHANIC'S LIEN
Tenant shall have no authority to create or place any lien or
encumbrances of any kind or nature whatsoever upon, or in any manner to bind,
the interest of Landlord in the Premises or to charge the rentals payable
hereunder for any claim in favor of any person or entity dealing with Tenant,
including those who may furnish materials or perform labor for any construction
or repairs, and each such claim shall affect and each such lien shall attach to,
if at all, only the leasehold interest granted to Tenant by this instrument. If
Tenant shall make repairs or improvements to the Premises, Tenant shall, in
making such repairs or improvements, act solely for its own benefit and not as
an agent of Landlord, and Landlord's interest in the Premises, and the building
or the overall development of which the Premises are a part, shall not be
subject to any mechanic's, furnisher's or materialmen's liens.
Tenant covenants and agrees that it will pay or cause to be paid all
sums due and payable by it on account of any labor performed or materials
furnished in connection with any work performed on the Premises on which any
lien is or can be validly and legally asserted against its leasehold interest in
the Premises or the improvements thereon. Tenant will save and hold Landlord
harmless from any and all loss, cost or expense, including attorneys' fees,
based on or arising out of asserted claims or liens against the leasehold estate
or against the rights, title and interest of the Landlord in the Premises or
under the terms of this Lease. Tenant shall discharge by payment or satisfactory
bond pursuant to statutory procedures any lien arising out of work performed or
materials furnished on the Premises by, through or under Tenant within thirty
(30) days after the filing of same.
ARTICLE 8
DAMAGE OR DESTRUCTION BY FIRE
In the event the Premises shall be damaged or destroyed either (i) by
an insured casualty within Landlord's all-risk insurance policies to such extent
that Landlord cannot make necessary repairs or rebuild within ninety (90) days
from the date of such damage or destruction; or (ii) by any uninsured casualty,
or (iii) by an insured casualty with respect to which Landlord's mortgagee
requests that the insurance proceeds be applied to the indebtedness, then at
Landlord's option, this Lease Agreement may be terminated in which event Tenant
shall be allowed an abatement of rent from the date of such damage or
destruction.(21)
If the Premises shall be damaged or destroyed by fire or other causes
and Landlord elects to repair the Premises and continue this Lease,(22) then
this Lease Agreement shall not terminate, the Premises shall be repaired or
rebuilt by Landlord at its own expense, the Base Rental and Additional Charges
shall xxxxx proportionately until the repairs or rebuilding are completed and
possession thereof given to Tenant, and the term of this Lease Agreement shall
be extended for a period equal to such period of rent abatement but not
otherwise affected. Tenant shall in all events restore or repair its additions
and improvements to the Premises. Tenant shall, in case of damage or
destruction, give immediate notice in writing to Landlord.
Should fifty percent (50%) or more of the total leasable area of the
building in which the Premises are located at any time be damaged or destroyed
by fire or any other cause, Landlord(23) may elect not to rebuild and may
forthwith terminate this Lease Agreement by written notice(24) election to so
terminate.
In the event of a casualty loss or damage which arises out of or in
connection with the use, misuse, or occupancy of the Premises by Tenant, or
results from the acts or omissions of Tenant, its employees, or agents, Tenant
shall indemnify Landlord for any claims, loss or damage not covered under
Landlord's standard insurance coverage, including the deductible portion of such
insurance.
ARTICLE 9
RIGHT OF ENTRY, ETC.
Landlord reserves the right during the term of this Lease to enter the
Premises at reasonable hours for the purposes of inspecting and showing the
Premises and to make such repairs as Landlord may deem necessary for their
protection and
------------------
21(20)...."semiannual"....
22(21)...."Notwithstanding the foregoing, in the event that Landlord has not
terminated the Lease pursuant to the foregoing provision, but has not completed
the repair or rebuilding of the Premises by the date that is ninety (90) days
after the date of damage or destruction, Tenant shall have the right to
terminate the Lease on written notice to Landlord."...
23(22)...."as provided above,"....
24(23)...."or Tenant"....
25(24)...."of either party's"....
preservation, and additionally may enter at any time in the event of an
emergency, provided that these rights shall not be construed as expanding
Landlord's repair obligation beyond that as stated herein.
ARTICLE 10
DEFAULT
Tenant shall be in default hereunder if Tenant shall (i) fail to pay
rent or any other sums of money required to be paid by Tenant and such failure
shall continue for (25) days after Landlord gives Tenant written notice thereof;
or (ii) fail to perform or comply with any other covenant, condition, term or
provision of this Lease and such failure shall continue for (26) days after
Landlord gives Tenant written notice thereof. In the event of any such default,
in addition to all other remedies given to Landlord in law or in equity,
Landlord may by written notice to Tenant terminate this Lease or without
terminating this Lease and without notice re-enter the Premises by summary
proceedings or otherwise and in any event may dispossess Tenant.
Tenant, notwithstanding such termination, shall be and remain liable
for all rent and other charges and sums due hereunder for the remainder of the
term, which liability shall survive the termination of this Lease, the re-entry
by Landlord and the commencement of any action to secure possession of the
Premises. Landlord shall have the right to maintain successive actions against
Tenant for recovery of all damages, including, without limitation, amounts equal
to the rents and other charges and sums payable hereunder as and when said rents
and other charges and sums are payable hereunder and Landlord shall not be
required to wait to begin such actions or legal proceedings until the date this
Lease would have expired.
In the event of such re-entry, Landlord may enter as agent for Tenant
or in its own name, without being obligated to do so, and re-let the whole or
any portion of said Premises (with or without any improvements made by Tenant
thereon), or the whole or any portion thereof with additional space, for any
period equal to, greater or less than the remainder of the term of this Lease,
for any sum (including any rental concessions and rent-free occupancy) which it
may deem reasonable, to any tenant which it may deem suitable and satisfactory,
and for any use and purpose which it may deem appropriate. Landlord's damages
shall include, without limitation, attorneys' fees incurred by reason of
Tenant's default, commissions and the cost of repair or alteration of the
Premises ("Costs of Re-letting") and, in the event of any reletting, Landlord
may apply the rent therefrom first to the payment of Landlord's expenses,
including Costs of Re-letting, and then to the payment of rent and all other
sums due from Tenant hereunder, Tenant remaining liable for any deficiency.
All remedies available to Landlord in this Lease, in law or equity are
declared to be cumulative and concurrent. No termination of this Lease nor any
taking or recovering of possession of the Premises shall deprive Landlord of any
of its rights, remedies or actions against Tenant including, without limitation,
the right to receive all past due rents and damages equal to future rents and
other charges accruing under this Lease, which rights shall survive the
termination of this Lease or taking of possession of the Premises.
If this Lease be terminated for any reason whatsoever or if Landlord
should re-enter the Premises as a result of any breach of Tenant hereunder
without terminating the Lease, Tenant covenants, any other covenant herein to
the contrary notwithstanding (except where this Lease is terminated following
eminent domain proceedings) that the Premises shall then be in the condition
prescribed for delivery at the expiration of the term of this Lease.
In the event Tenant violates any of the provisions, covenants,
conditions or promises set forth in this Lease Agreement, and further in the
event Landlord determines in its exercise of its sole discretion that such
default is susceptible of a cure by Landlord, then in addition to any and all
other remedies provided for in this Lease, Landlord shall have the right (but
shall not be obligated) to cure such default and implement such corrective
measures as Landlord deems reasonably necessary to correct such default. In the
event Landlord exercises the right of "self help" as set forth in the preceding
sentence, then Tenant covenants and agrees that it shall within five (5) days
after notice from Landlord pay to Landlord the cost incurred by Landlord in
connection with implementation of such corrective measures (27), it being the
intent to permit Landlord to recover a reasonable administrative fee in addition
to the actual cost incurred.
Further, in the event Tenant is not conducting a going business within
the Premises or vacates or abandons the Premises (the cessation of operation of
a business within the Premises for a period in excess of seven (7) days to be
conclusive evidence of Tenant's intent to abandon or vacate the Premises) then
Landlord shall have the right (but shall not be obligated) to enter the Premises
after providing notice to Tenant for the purpose of inspection and
implementation of such repairs, maintenance or other improvements to the
Premises which may be required, in Landlord's opinion, to preserve the overall
appearance of the Premises or to mitigate the adverse impact of the appearance
of the Premises upon the Property. Landlord shall additionally have the right to
change the exterior locks on the Premises for security purposes but shall not be
obligated to do so. In the event Landlord does change the exterior locks, then
Tenant shall, upon request, be provided with a key to the Premises. In no event
shall any of the foregoing actions by Landlord be considered an eviction,
constructive or otherwise, of Tenant, it being the intent of the parties to
permit Landlord a reasonable right of access to the Premises for the purposes
set forth herein and to minimize any adverse impact resulting from an
abandonment of the Premises or cessation of operation by Tenant. Entry by
Landlord pursuant to this paragraph shall in no event be construed, interpreted
or otherwise determined to be an eviction of Tenant or a termination of this
Lease absent notification to the contrary by Landlord.(28)
----------------------
26(25)...."ten (10)"....
27(26)...."thirty (30)"....
28(27)...."together with interest thereon at ten percent (10%) per annum"....
29(28)...."Both parties agree, however, that vacating the Premises alone will
not constitute default if Tenant remains current on monetary and other
obligations set forth in this Lease."....
In the event an attorney is employed by either party in order to
secure compliance by the other party with the provisions of this Lease (whether
or not litigation is involved), the non-prevailing party shall pay to the
prevailing party the reasonable attorneys' fees and costs of collection or
enforcement of the provisions of this Lease incurred by the prevailing party,
including filing fees and court costs.
ARTICLE 11
INSOLVENCY OF TENANT
In the event of the insolvency of Tenant, or the filing of a
proceeding by or against Tenant or any partner of Tenant or guarantor of this
Lease under the Bankruptcy Code or if relief is sought by Tenant under any
similar debtor relief laws or proceedings including an offer in or out of court
for the compromise of Tenant's debts, or any substantial part thereof, Landlord
in addition to any rights available to it at law or equity shall have the right
and privilege to immediately terminate this Lease. Landlord shall have the right
to immediately re-enter into possession of the Premises for the purpose of
leasing same.
ARTICLE 12
DELIVERY AT END OF LEASE
Tenant agrees that on the last day of the term it shall without notice
or demand deliver the Premises, including all improvements and fixtures
permanently attached, and replacements thereto (except those which Tenant may
within thirty (30) days after the expiration date of the term be directed to
remove) to Landlord, or Landlord's agent or assignee, in good order and
condition. Tenant shall have repaired all damage to the Premises, ordinary wear
and tear excepted.
If Tenant remains in possession of the Premises after the expiration
of the tenancy created hereunder and without the execution of a new lease or
other written agreement, Tenant shall be deemed to be occupying the Premises as
a tenant from month to month and subject to all of the rents and provisions of
this Lease in effect on the day before the expiration of the tenancy, except
those relating to term and except that the Base Rental shall be increased to the
amount which is the greater of (i) double the amount payable during the last
month of the Lease or (ii) one hundred (29) of the fair rental value of the
Premises as of the expiration of the term, without prejudice to any claim for
damages or otherwise which Landlord may have against Tenant for failure of
Tenant to vacate the Premises at expiration of the term. For the purpose of this
provision "fair rental value" shall be defined as being the amount which
Landlord is then receiving for comparable space in the building or project in
which the Premises are located or in comparable properties in the same city.
ARTICLE 13
EXTENSION; PARTIAL PAYMENT;
NO ACCORD AND SATISFACTION
It is agreed that, should Landlord, at its option, either extend the
time of payment or accept partial payment on one or more of the Base Rental
installments or other monetary obligations hereunder, such shall not be
construed as altering the terms of payment of any subsequent installments or
obligations. After the service of any notice or commencement of any suit, or
final judgment therein, Landlord may receive and collect any rent due and such
collection or receipt shall not operate as a waiver of nor affect such notice,
suit or judgment.
No payment by Tenant or receipt by Landlord of a lesser amount shall
be other than on account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction. Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such rent or pursue any other remedy provided for in this Lease or available at
law or in equity.
In the event that any of Tenant's checks payable to Landlord or
Landlord's agent shall be returned for insufficient funds, Landlord shall have
the right to demand from Tenant that all future rent payments be made by
certified check or money order, Tenant shall pay to Landlord a returned check
fee of $20.00, and Landlord shall not be required to accept any check from
Tenant which does not so conform.
ARTICLE 14
SUBORDINATION; ATTORNMENT; ESTOPPEL;
LANDLORD'S COVENANT AS TO TITLE
Upon payment by Tenant of the rent and other charges herein provided,
and upon the observance and performance of all the covenants, terms and
conditions on Tenant's part to be observed and performed, Tenant shall peaceably
and quietly hold and enjoy the Premises for the term hereof without hindrance or
interruption by Landlord or others legally claiming title thereto by, through or
under Landlord, subject, nevertheless, to the terms and conditions of this
Lease.
Tenant's leasehold estate shall always be subordinate to any mortgage
loan, deed of trust, or underlying or ground lease, including, without
limitation, any refinancing, replacement, renewal, modification, extension or
consolidation thereof which is placed upon the Premises from time to time by
Landlord. This provision shall be self operative and no further instrument of
subordination shall be required.
------------------
30(29)...."twenty-five percent (125%)"....
Tenant agrees that it will attorn to and recognize the purchaser at
any foreclosure sale or at any sale under a power of sale contained in any
mortgage or deed of trust upon the property in which the Premises are located
and the grantee of any conveyance made in lieu of foreclosure or power of sale
as landlord under this Lease. Tenant agrees, further, that in the event any
proceedings are brought for the termination of any ground or underlying lease
affecting the Premises, upon such termination, if the lessor thereunder elects
or is obligated to recognize Tenant, Tenant shall attorn to such lessor and
recognize such lessor as Landlord under this Lease.
Tenant covenants and agrees that within five (5) days after receipt of
notice Tenant shall execute in recordable form and deliver upon demand of
Landlord whatever instruments may be required to acknowledge and further
evidence the subordinations, agreements to attorn and priorities, referred to in
this Section. Tenant shall additionally, within five (5) days after receipt of
notice, execute an "Estoppel" certificate confirming that the Lease is in full
force and effect, that there are no Landlord defaults (or delineating with
specificity the nature of such Landlord's defaults, if any), the rental and
other amounts required to be paid by Tenant, and such other information as is
reasonably requested by a prospective purchaser or mortgagee.
ARTICLE 15
GRAPHICS
Tenant shall not place or permit to be placed on the exterior of the
Premises, upon the roof, on any exterior door or wall, or on the exterior or
interior window, any sign, advertising matter, decoration, lettering or other
thing of that kind without the written consent of Landlord first had and
obtained. In no event shall temporary or portable signs or banners be utilized,
installed or displayed at or about the Premises. All signs and directories shall
conform to the specifications which Landlord requires in the exercise of its
sole discretion.
ARTICLE 16
CONDEMNATION
The parties hereby agree that should the Premises, or such portion
thereof as will make the Premises unusable for the purposes herein leased, be
taken or condemned for public or quasi-public use, then this Lease shall
terminate from the date when possession of the part so taken shall be required.
If the Lease continues after a partial taking, the Base Rental and Additional
Charges shall xxxxx proportionately as to the part taken. All compensation
awarded for such taking of the Premises, or any part thereof, the fee and the
leasehold shall belong to and be the property of Landlord provided, however,
that Landlord shall not be entitled to any portion of any award made to Tenant
for the value of Tenant's trade fixtures. Tenant shall not be entitled to any
damages for the unexpired portion of the term of this Lease, or injury to its
leasehold interest.
ARTICLE 17
UTILITIES
Tenant is to obtain and pay for all utilities, including electricity,
gas, other fuel, water, garbage fee, sewer fee, sprinkler monitoring fees and
other special fees on or for the Premises during the term of this Lease. If
there is a master meter source provided by or through the Landlord, Tenant will
pay Landlord for said utility usage as additional rent promptly upon
presentation of statements for said usage, based upon Landlord's determination
from time to time of Tenant's consumption. Said amounts may be estimated by
Landlord in which event Tenant shall pay said estimate, as may be revised from
time to time, in advance on the first day of each and every month with Tenant's
Base Rental without further notice. Landlord will have the right in its
discretion to adjust utility costs among tenants on other than a pro rata basis
based upon its determination of tenants' usage.(30)
ARTICLE 18
ENVIRONMENTAL MATTERS
Tenant shall not cause or permit any Hazardous Substance to be used,
stored, generated, disposed of or released on or in the Premises or the Property
or the land on which the Property is located or the underlying acquifer on which
the Property is located. Further, Tenant shall not cause or permit any materials
or substances which are commonly deemed to be explosive or flammable to be used,
stored, generated, released or disposed of on or in the Premises or the Property
in which the Premises are located by Tenant, Tenant's agents, employees,
contractors, or invitees without first obtaining Landlord's written consent. If
Hazardous Substances are used, stored, generated, or disposed of on or in the
Premises or the Property except as permitted above, or if the Premises or the
Property become contaminated in any manner for which Tenant is legally liable,
Tenant shall indemnify and hold harmless Landlord from any and all claims,
damages, fines judgments, assessments, penalties, costs, liabilities, or losses
(including, without limitation, a decrease in value of the Premises or the
Property, damages caused by loss or restriction of rentable or usable space, or
any damages caused by adverse impact on marketing of the space, and any and all
sums paid for settlement of claims, attorneys' fees, consultant's fees, and
expert's fees) arising during or after the Lease term and arising as a result of
that contamination by Tenant. This indemnification includes, without limitation
any and all costs incurred because of any investigation of the site or any
cleanup, removal, or restoration mandated by a federal, state, or local agency
or political subdivision. Without limitation of the foregoing, if Tenant causes
or permits the presence of any Hazardous Substance on the Premises or the
Property and that results in contamination, Tenant shall promptly, at its sole
expense, take any and all necessary actions to return the Premises or the
Property to the condition existing prior to the presence of any such Hazardous
Substance on the Premises or the Property. Tenant shall notify Landlord if any
governmental regulatory agent cites or notifies it
----------------------
31(30)...."If Landlord leases the remaining unoccupied portion of the building
to another third party Tenant, Landlord will bear the expense to separate
utilities, meters, HVAC, electrical, sprinkler, etc.,"....
of a violation of environmental laws, rules or regulations and shall keep
Landlord informed of all acts or actions taken by Tenant with respect thereto.
Tenant shall first obtain Landlord's approval for any such remedial action.
As used herein, "Hazardous Substance" means any substance that is
toxic, ignitable, reactive, or corrosive and that is regulated by any local
government, the state in which the Property is located, or the United States
Government. "Hazardous Substance" includes any and all material or substances
that are defined as "hazardous waste," "extremely hazardous waste," or a
"hazardous substance" pursuant to state, federal, or local governmental law.
"Hazardous Substance" includes, but is not restricted to, asbestos,
polychlorobiphenyls ("PCBs"), and petroleum.
(31) least forty-five (45) days prior to the expiration of the term
hereof, Tenant (32) furnish an environmental audit report prepared by an
environmental engineering firm reasonably acceptable to Landlord which shall
certify the absence of any Hazardous Substance on, under, at, or within the
Premises or the Property(33)
The provisions of this Article 18 shall survive any assignment,
transfer, amendment or termination of this Lease Agreement.
The provision of Article 18 shall apply to Tenant, its agents,
employees, contractors, invitees or others who obtain access to the Premises
during the term hereof.
ARTICLE 19
FIRE PROTECTION
Tenant has examined the Premises and fire protection/sprinkler system
in the Premises, if any. Tenant acknowledges that Landlord shall have no
responsibility for implementation of any modifications whatsoever to any fire
protection/sprinkler system in the Premises which Tenant has examined and with
which Tenant is satisfied. In the event that the Fire Marshal, Building
Department or other municipal authority requires any modifications to the
existing fire protection/sprinkler system, implementation of such modifications
and all costs thereof shall be the responsibility of Tenant. Further, in the
event such modifications are requested or required as a restriction of Tenant's
use or method of storage materials within the Premises, Tenant shall either
implement the required modifications to the fire protection/sprinkler system or
ventilation and/or Tenant shall modify its method of storage or use of the
Premises so as to comply with the permitted uses under the existing fire
protection/sprinkler system or ventilation configuration. The Premises shall in
no event be used for storage of "high-piled combustible stock" as defined in the
Building Code adopted from time to time by the governmental authority having
jurisdiction over the Premises, unless fire protection for such use has been
installed and is maintained in accordance with all applicable ordinances, laws,
rules, and regulations. Tenant agrees that it shall pay for sprinkler monitoring
fees through Common Area Charges as set forth in Article 1, Section 2,
Subsection (i), provided however, if the Premises consist of a building of which
Tenant is the sole occupant, Tenant may be billed for and shall pay sprinkler
monitoring fees directly.(34)
ARTICLE 20
PERSONAL LIABILITY
The liability of Landlord (and any partner, stockholder or officer of
Landlord) to Tenant for any default by Landlord under the terms of this Lease
shall be limited to the interest of Landlord in the Property and Landlord (and
any partner,
----------------------
32(31)...."If Landlord has a reason to believe that contamination has occurred,
Landlord may require Tenant at"....
33(32)...."to"....
34(33)...."Landlord warrants and represents that, to the best of Landlord's
knowledge, any use, storage, treatment, or transportation of Hazardous
Substances that has occurred in or on the Premises prior to the date hereof has
been in compliance with all applicable federal, state and local laws,
regulations or ordinances. Landlord additionally warrants and represents that to
the best of Landlord's knowledge, no release, leak, discharge, spill, disposal
or emission of Hazardous Substances has occurred in, on or under the Premises,
and that the Premises are free of Hazardous Substances as of the date hereof.
Landlord agrees to indemnify and hold harmless Tenant from any and all
claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for settlement of claims,
attorney's fees, consultant and expert fees) arising during or after the Lease
term from or in connection with the presence or suspected presence of Hazardous
Substances unless the Hazardous Substances are present as a result of the
negligence, willful misconduct, or other acts of Tenant, Tenant's agents,
employees, contractors, or invitees. Without limitation of the foregoing this
indemnification shall include any and all costs incurred due to any
investigation of the site or any cleanup, removal or restoration mandated by a
federal, state, or local agency or political subdivision. This indemnification
shall specifically include any and all costs due to Hazardous Substances that
flow, diffuse, migrate, or percolate into, onto or under the Premises after the
Lease term commences.
1(34)...."Any modifications required for a third party tenant's occupancy in the
building will be at Landlord's expense.".... 2
stockholder or officer of Landlord) shall not be personally liable for any
deficiency nor shall Landlord (or any partner, stockholder or officer of
Landlord) ever be liable under the terms of this Lease for consequential or
special damages. This paragraph shall not be deemed to limit or deny any
remedies which Tenant may have in the event of default by Landlord hereunder
which do not involve the personal liability of Landlord.
In the event of a sale of the Property, Tenant agrees that Landlord
shall thereupon be released from any obligations or liabilities accruing under
this Lease from and after the effective date of such conveyance.
ARTICLE 21
NOTICES
All notices required or provided for under this Lease shall be given
in writing either by (i) CERTIFIED MAIL, return receipt requested; (ii) hand
delivery by a reputable courier service requiring receipt on delivery; or (iii)
delivery by a national or regional overnight courier service. All notices shall
be addressed to Landlord or Tenant at the addresses set forth in the Lease
Agreement or to such other addresses as Landlord or Tenant may direct in writing
from time to time.
Notices shall be effective upon the earlier of actual receipt or forty
eight (48) hours after deposit in the U.S. Mail or permitted courier. Notices of
any default by Landlord shall be given by Tenant to any mortgagee of whom Tenant
has been notified in writing, and said mortgagee shall have the right to cure
said default.
ARTICLE 22
RULES AND REGULATIONS
Tenant and Tenant's agents, employees, invitees and visitors shall
comply fully with the requirements of the following rules and regulations. Such
rules and regulations may be changed or amended by Landlord at any time.
(i) All garbage and refuse shall be kept in approved type containers
and shall be placed at a location adjoining the Premises or other location
designated by Landlord, for collection at regular intervals (not less than
weekly); Tenant to pay the cost of removal of garbage and refuse.
(ii) The Tenant agrees that if the Premises are used for other than
the use contemplated by the Lease Agreement, or if the Fire Marshal requires,
Tenant, at its cost, shall provide the required additional automatic sprinkler
heads and/or other required modifications necessary to comply with the insurance
and fire department regulations; in all events Tenant shall provide for its
usage the necessary quantity and approved type and class fire extinguishers
within the Premises.
(iii) No radio, television, satellite, microwave dish or tower, or
other similar aerials or appurtenances (inside or outside) shall be installed
without first obtaining in each instance Landlord's consent in writing, (35)and
if such consent is given, no such device shall be used in a manner as to be
heard or seen outside of the Premises. Tenant shall be responsible for any
damage to Landlord's roof occasioned by such installation.
(iv) Tenant shall keep the Premises at a temperature sufficiently high
to prevent freezing of water in pipes and/or fixtures or equipment.
(v) Tenant shall during the lease term or any extension hereof, at
Tenant's costs, be responsible for pest extermination (including, but not
limited to, rodents and insects) at such intervals as are necessary to keep the
Premises free and clear of infestation.
(vi) Tenant shall not place, suffer or permit displays or storage on
the outside of the Premises or upon any of the Common Areas of the building of
which the Premises are a part nor shall Tenant install, maintain or permit any
vending machines, pay phones, or other property upon the Common Areas.
(vii) Tenant agrees at all times to comply with any governmental
energy conservation regulations and at all times to maintain temperatures in the
Premises consistent with the temperature as specified and set forth in any
governmental regulation.
(viii) The outside areas immediately adjoining the Premises shall be
kept clean and free from its rubbish by Tenant, and Tenant shall not place,
suffer or permit any obstructions or merchandise in such areas.
(ix) Tenant and its employees shall park their cars only in the
parking area designated for that purpose by Landlord; if Tenant or its employees
park in a manner that obstructs any fire lane or shall interfere with any of the
rights of Landlord or other tenant within the building(s) and their rights to
free and uninterrupted egress and ingress and loading, Tenant hereby authorizes
Landlord (at its option) to tow away such vehicles and Tenant shall be
responsible for all costs incurred in connection with such towing.
(x) Tenant shall not burn trash or garbage in or about the Premises.
(xi) Tenant shall not conduct or permit to be conducted in the
Premises any auction, fire, bankruptcy or other distress sales without the prior
written consent of Landlord.
---------------------
35...."which shall not be unreasonably withheld,"....
ARTICLE 23
REAL ESTATE AGENT
Landlord and Tenant each represent and warrant to the other that no
agents were involved in the negotiation of this Lease except as is disclosed in
the Lease Agreement to which this is an exhibit. Each party agrees to indemnify
the other against claims for commission by individuals, entities or agents
claiming entitlement to commission by virtue of its representation of the
indemnifying party.
ARTICLE 24
COVENANTS RUN TO HEIRS
It is hereby covenanted and agreed between the parties hereto that all
covenants, conditions, agreements and undertakings in this Lease contained shall
extend to and be binding on, and inure to the benefit of (except as limited by
the terms hereof), the respective heirs, administrators, executors, successors
and permitted assigns of the respective parties hereto the same as if they were
in every case named and expressed also that the term Landlord and Tenant shall
be construed in the singular or plural number according as they respectively
represent one or more than one person.
ARTICLE 25
SHORT FORM LEASE
The parties have entered into a Short Form of this Lease Agreement
which may, at Landlord's option, be recorded. In no event shall this Lease
Agreement be recorded.
ARTICLE 26
CORPORATE TENANTS
In the event Tenant is a corporation, the persons executing this Lease
on behalf of Tenant hereby covenant and warrant that: Tenant is a duly
constituted corporation qualified to do business in the State in which the
Premises is located; all Tenant's franchise and corporate taxes have been paid
to date; all future forms, reports, fees and other documents necessary for
Tenant to comply with applicable laws will be filed by Tenant when due; and such
persons are duly authorized by the board of directors of such corporation to
execute and deliver this Lease on behalf of the corporation.
ARTICLE 27
ENTIRE AGREEMENT
This Lease includes the Lease Agreement, Exhibit A (drawing or
description of the Property showing the general location of the Premises), this
Exhibit B (General Lease Provisions) and Exhibit C (which delineates the
construction requirements of the parties if any). The foregoing constitute all
of the agreements and conditions made between the parties hereto, and no
representations or statements claimed to have been made and not herein contained
shall modify this Lease in any way.
Landlord: Xxxx Investco GP Tenant: Xxxxxxx Sports, Inc.
By: URCO, INC. (Managing Partner)
By By
------------------------------------ -------------------------------------
Xxxxxx X. Xxxxxx, Vice President Xxxx Xxxx, Chief Operating Officer
By
------------------------------------
Xxxxxx X. Xxxx, President
E X H I B I T "C" - W O R K T O B E D O N E
-------------------------------------------
XXXX INVESTCO GP- LANDLORD
XXXXXXX SPORTS, INC.- TENANT
The Tenant leases Premises in an "AS IS" condition and agrees to make
all improvements at its expense, including compliance with any ADA and handicap
requirements except that Landlord shall make those improvements as shown on the
attached Exhibit C, Plans and Specifications. Landlord warrants the operating
systems consisting of the plumbing, electrical, HVAC and sprinkler serving the
Premises shall be in good working order for the first year following the
Commencement Date of the Lease and Landlord shall repair, if necessary, or
replace at Landlord's sole discretion, any defects to same at Landlord's expense
if Landlord receives written notice of such defect prior to the expiration of
the first full lease year. The foregoing warranty is conditioned upon i)
Tenant's full compliance with AA4 and AA6 of Exhibit B of this Lease and ii)
such defects not being necessitated as a result of the negligent or willful acts
of Tenant, its lessee's and/or agents.
LANDLORD: Xxxx Investco GP
By: URCO, INC. (Managing Partner)
By:
--------------------------------------------
Xxxxxx X. Xxxxxx, Vice President
By:
--------------------------------------------
Xxxxxx X. Xxxx, President
TENANT: Xxxxxxx Sports, Inc.
By:
--------------------------------------------
Xxxx Xxxx, Chief Operating Officer
MEMORANDUM OF LEASE
-------------------
THIS LEASE, made and entered into as of the ___ day of ____________, 2000
by and between Xxxx Investco, GP, a Tennessee limited partnership, hereinafter
referred to as "Landlord", and Xxxxxxx Sports, Inc., a Delaware corporation,
hereinafter referred to as "Tenant":
WITNESSETH:
For and in consideration of One Dollar ($1.00) and other valuable
consideration paid and to be paid by the Tenant to the Landlord, the Landlord
does demise and let unto Tenant and the Tenant does lease and take from the
Landlord, upon the terms and conditions and subject to the limitations more
particularly set forth in a certain agreement between the Landlord and Tenant,
bearing even date herewith, to which Agreement reference is hereby made for all
of the terms and provisions thereof, which terms and provisions are made a part
hereof as fully and particularly as if set out verbatim herein, the premises
situated in the City of Memphis, County of Shelby, State of Tennessee,
consisting of land, together with improvements placed and/or to be placed
thereon, and more particularly described as follows:
An industrial space containing approximately 205,277 square feet located
within Bartlett, Tennessee and further municipally described as 0000
Xxxxxxx Xxxx.
TO HAVE AND TO HOLD the above demised premises unto the Tenant for the
period of ten (10) years, commencing on the first day of November 1, 2000 and
ending on the last day of the previous month ten (10) years thereafter.
A first lien is hereby expressly reserved by the Landlord and granted by
the Tenant upon the terms and conditions of this Lease and upon all interest of
the Tenant in this leasehold for the payment of rent and also for the
satisfaction of any cause of action which may accrue to the Landlord by the
provisions of this instrument. A first lien is also reserved by the Landlord and
granted by the Tenant upon all building and other physical improvements,
fixtures and equipment, erected or put in place or that may be erected or put in
place upon the premises by or through the Tenant or other occupants for the
payment of rent and also for the satisfaction of any cause of action which may
accrue to the Landlord by the provisions of this instrument.
It is agreed and understood that if the Tenant shall make certain
improvements to the demised premises, Tenant shall, in making such improvements,
act solely for its own benefit and not as an agent of Landlord and that
Landlord's interest in the demised premises the building of which the demised
premises are a part, and the overall development of which the demised premises
are a part, shall not be subject to any mechanical, furnishers or materialmen's
liens. Landlord does not consent to any contract for labor or materials within
the context of Section 00-00-000 et seq., Tennessee Code Annotated out of which
any such liens might arise. No contract for labor or material will be contracted
for by Tenant except with the express stipulation that any lien arising
therefrom shall not attach to Landlord's fee interest, but only to Tenant's
leasehold interest in the demised premises, building, or in the overall
development of which the demised premises is a part. Tenant shall defend and
save harmless Landlord from any and all loss, cost or expense, including
attorneys' fees, based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of Landlord in the
demised premises or under the terms of the Lease. Tenant shall discharge by
payment or furnish to Landlord a satisfactory bond pursuant to statutory
procedures any lien arising out of work performed or materials furnished on the
demised premises by, through or under Tenant within thirty (30) days after the
filing of same.
IN WITNESS WHEREOF, the parties through their duly authorized officers,
have executed this instrument, this the day and year first above written.
LANDLORD: Xxxx Investco, GP TENANT: Xxxxxxx Sports, Inc.
By: URCO, Inc. (Managing Partner)
By: By:
------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx, Vice President Xxxx Xxxx, Chief Operating Officer
By:
-----------------------------------
Xxxxxx X. Xxxx, President
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public of the State and County aforesaid, personally
appeared XXXXXX X. XXXXXX AND XXXXXX X. XXXX, VICE PRESIDENT AND PRESIDENT,
respectively, of URCO, INC., a Tennessee corporation, said corporation is the
managing partner of XXXX INVESTCO GP, a Tennessee general partnership, with whom
I am personally acquainted, and who, upon oath acknowledged that they are the
VICE PRESIDENT AND PRESIDENT, respectively, of URCO, INC., managing partner, of
XXXX INVESTCO GP, and that they as such VICE PRESIDENT AND PRESIDENT,
respectively, executed the foregoing instrument for the purpose therein
contained by signing the name of such partnership by such corporation, as the
managing partner by themselves as VICE PRESIDENT AND PRESIDENT, respectively, of
such corporation.
WITNESS my hand and Notarial seal, at office in Memphis, Tennessee, this,
the _____ day of __________, 2000.
-------------------------------------------
Notary Public
My Commission Expires:
---------------------
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public of the State and County aforesaid, personally
appeared XXXX XXXX with whom I am personally acquainted, (or proved to me on the
basis of satisfactory evidence) and who, upon oath, acknowledge himself to be
the CHIEF OPERATING OFFICER of XXXXXXX SPORTS, INC., the within named bargainor,
a Delaware corporation, and that he executed the foregoing instrument for the
purposes therein contained by signing the name of such corporation by himself as
such CHIEF OPERATING OFFICER.
Witness my hand, at office, this _____ day of ____________, ____.
-------------------------------
Notary Public
My Commission Expires .
----------
