LEASE AGREEMENT
(COMMERCIAL)
This Lease Agreement is made and entered into to be effective as of the 1st
day of November, 1996, by and between Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxx, as
Co-Trustees, or their successors in trust, of the Xxxxxx X. Xxxxxx Trust U/T/A
dated October 9, 1975 and as amended ("Landlord"), and Coldwater Creek, Inc., an
Idaho Corporation ("Tenant") (the "Lease").
WITNESSETH:
WHEREAS, Landlord is the owner of that certain real property and
improvements consisting of a basement, ground floor and partial second floor at
the location commonly known as 00 X. Xxxxxxxx, Xxxxxxx, Wyoming, and more
particularly described as the westerly portion of Xxx 0, Xxxxx 0, xx xxx Xxxxx
Xxxxx Addition to the Town of Xxxxxxx, Teton County, Wyoming, as depicted on
Exhibits "A" and "B" attached hereto and by this reference made a part hereof
(the "Leased Premises"); and
WHEREAS, the parties hereto desire to enter into a written lease agreement
providing the terms, covenants and conditions for the occupancy of the Leased
Premises by Tenant.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
undertakings and benefits to the parties, the parties agree as follows:
1. LEASE OF LEASED PREMISES. Landlord agrees to lease to Tenant and
Tenant agrees to lease from Landlord the Leased Premises according to the terms
and conditions of this Lease.
2. TERM OF LEASE. The term of the Lease shall be for a term of ten (10)
years, commencing on the 1st day of November, 1996, and terminating on the 31st
day of October, 2006, unless sooner terminated or extended under the provisions
of the Lease.
3. RENT AND PAYMENT.
(a) BASE RENT. Tenant covenants and agrees to pay Landlord each year
during the first five (5) years of the initial term of the Lease, net
rent totaling Two Hundred Fifty Thousand Dollars ($250,000.00),
subject to credits as hereinafter provided. The net rent for the
second five years of the initial term hereof shall increase effective
the 1st day of November, 2001, by
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ten percent (10%) to a net annual rent of Two Hundred Seventy-Five
Thousand Dollars ($275,000.00).
Tenant shall pay to Landlord, on the 1st day of each month during
the term of this Lease, the sum equivalent to one-twelfth (1/12) of
the total sum due, after credits, for the particular Lease year. Rent
payments shall commence on the earlier of January 1, 1997 or the date
Tenant opens for business, and on the 1st day of each month
thereafter, and shall be made payable to Landlord as follows: Xxxxxx
X. Xxxxxx Trust, c/o Hawkins, Kominsky, XxXxxxx & Associates, P.0.
Xxx 0, Xxxxxxx, Xxxxxxx, 00000, until directed, otherwise.
(b) PERFORMANCE DEPOSIT. Upon execution of this Lease, Tenant shall
deposit funds in the amount of One Hundred Thousand Dollars
($100,000.00) in an escrow account subject to an escrow agreement
approved by Landlord and Tenant, or shall deliver to Landlord, a bank
Irrevocable Letter of Credit in the face amount of One Hundred
Thousand Dollars ($100,000.00), payable to Landlord and in a form
acceptable to Landlord and Tenant, which escrow deposit or Irrevocable
Letter of Credit shall secure, in favor of Landlord, Tenant's
obligations pursuant to this Lease Agreement from the date of
execution through the first six (6) months of the term of this Lease.
Upon six months' satisfactory performance by Tenant of all of the
terms and conditions of the Lease, the escrowed funds or the
Irrevocable Letter of credit shall be released.
(c) ADDITIONAL PERCENTAGE RENTAL. On or before the 15th day of each
quarter, the Tenant shall mail to or deliver to the Landlord a sworn
statement showing the Gross Sales, as defined hereafter, made in, out,
through or from the Leased Premises during the preceding three (3)
months. At the end of the first quarter of each calendar year during
the term of this Lease, gross sales shall be calculated by adding the
total gross sales for that quarter and the preceding three quarters.
In the event that six percent (6%) of the resulting calculation of
total gross sales for the preceding four quarters exceeds the base
rent paid during the said preceding four quarters, Tenant shall pay to
the Landlord on or before the 1st day of April of each year of the
term of this Lease, a sum
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equivalent to such excess. "Gross Sales" includes all sales
(regardless of delivery point) of merchandise and services made in,
out, through or from the Leased Premises (whether by Tenant,
sub-tenants, concessionaires or other assigns of Tenant) for cash or
on credit, whether paid or unpaid, collected or uncollected, less all
credits for returned merchandise, exchanged and refunded. Unless
otherwise agreed in writing, the only revenue excluded from Gross
Sales shall be the amount of sales tax or excise tax based on sales
imposed by any governmental taxing authorities and bonafide discounted
sales to Tenant and Tenant's employees.
The Tenant shall keep full, complete and proper books, records
and accounts of its daily, weekly, monthly, quarterly and annual Gross
Sales, both for cash and on credit, of Tenant and each subtenant and
concessionaire at any time operating in the Leased Premises. The
Landlord and its agents and employees shall have the right upon five
(5) days written notice, during regular business hours in Teton
County, to examine and inspect all of the books and records of the
Tenant, including any sales tax reports and income tax returns
pertaining to the business of the Tenant conducted in, out, upon or
from the Leased Premises, for the purpose of investigating and
verifying the accuracy of any statement of Gross Sales. The Landlord
may, once in any lease year, cause an audit of the business of Tenant
to be made by a certified public accountant of Landlord's selection
and, if any statement of Gross Sales previously made to Landlord shall
be found to be inaccurate, then and in that event, there shall be an
adjustment and one party shall pay to the other on demand such sums
as may be necessary to settle in full the accurate amount of said
percentage rent that should have been paid to Landlord for the period
or periods covered by such inaccurate statement or statements. If
said audit shall disclose an inaccuracy reflecting an understatement
of greater than two percent (2%) error with respect to the amount of
Gross Sales reported by Tenant for the period of said report, then the
Tenant shall immediately pay to Landlord the cost of such audit;
otherwise, the cost of such audit shall be paid by Landlord.
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(d) LEASEHOLD EXPENSE REIMBURSEMENTS. Tenant agrees to pay and/or
reimburse Landlord for all of Landlord's reasonable and necessary
operating and maintenance expenses, pertaining to the Leased Premises,
including, but not limited to, real estate taxes, insurance expenses,
real estate assessments, and any reasonable and necessary maintenance
costs paid by Landlord, all as set forth in paragraphs 10, 12 and 14
of this Lease Agreement. Any such charges and sums shall be deemed to
be rent and shall be payable in the manner provided and recoverable as
rent, and Landlord shall have all rights specified in this Lease
against Tenant for default in the payment thereof as in the case of
arrears of rent.
(e) PAYMENT OF LEASEHOLD EXPENSE REIMBURSEMENTS. Landlord has estimated
the amount of additional rent by way of leasehold expense
reimbursement to be paid to Landlord by Tenant for the first year's
term of this Lease (based on the last twelve months' experience) to be
___________________________________________________________Dollars
($_______). Concurrently with the payment of the base rent each
month, Tenant shall pay to Landlord one twelfth (1/12) of such
estimated amount ($_______). If at any time or times it appears to
Landlord that the amount payable as leasehold expense reimbursement
for the current lease year will vary from its estimate by more than
10%, Landlord shall, by written notice to Tenant, revise its estimate
for such twelve month period, and subsequent payments by Tenant for
such year shall be based upon such revised estimate.
Within ninety (90) days after the close of each lease year of
this Lease, using November as the first month of each lease year,
Landlord shall deliver to Tenant a statement of amounts payable as
leasehold expense reimbursements for such year, certified by an
accountant designated by Landlord, and such certified statement shall
be final and binding upon Landlord and Tenant. If such statement
shows an amount owing by Tenant that is more than the estimated
payments for such lease year previously made by Tenant, Tenant shall
pay the deficiency to Landlord within thirty (30) days after delivery
of the statement.
If for any reason other than the default of Tenant, this Lease
shall terminate on a day other than the last day of a lease year, the
amount of increase,
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if any, in leasehold expense reimbursement payments payable by Tenant
applicable to the lease year in which such termination shall occur,
shall be prorated on the basis of the ratio determined by dividing the
number of days from the commencement of the calendar year to and
including the termination date by 365.
4. RENEWAL OPTION. In the event Tenant is not in default of the terms
and conditions of this Lease at the time for notice of exercise of intent to
renew as hereinafter provided, or at the time for commencement of the renewal
option period, the Tenant shall have the right to renew this Lease for one (1)
additional term of five (5) years, provided that Tenant shall give Landlord not
less than 120 days notice in writing of its intent to exercise such renewal
option. In default of the giving of such notice, this renewal option shall fail
and shall be of no force or effect. Base rent for the five-year renewal option
term shall be increased by an amount equal to the percentage increase in the
Consumer Price Index for all items from moderate income families in large cities
as determined by the United States Department of Labor, Bureau of Labor
Statistics (CPI-Universal), or in the event such index should no longer be
published, then by the increase in its most comparable successor index. In
determining the percentage increase, the base month for the beginning figure
shall he the month of November, 1996. The rental increase shall be determined
by multiplying the annual rental for the first year of the lease term by the
percentage increase in said Consumer Price Index, with that resulting dollar
amount to be added to the rental amount for the first year of the term of this
Lease. The increased rental amount shall be due and payable thereafter in equal
monthly installments over the five year renewal term as in this Lease
hereinabove provided.
5. REQUIRED IMPROVEMENTS, FEE PAYMENTS AND RENTAL CREDIT. Tenant will
undertake, at its sole cost and expense, any and all necessary changes to the
roof structure of the Leased Premises and shall be solely responsible for the
conduct of such work and any and all damage to the Leased Premises resulting
from such work. In addition, Tenant will pay any and all required fees in lieu
of parking and fees in lieu of providing employee housing assessed by the Town
of Xxxxxxx to permit the conversion of a portion of the Leased Premises to
additional retail space to be utilized by Tenant. Fees in lieu of parking and
fees in lieu of employee housing are estimated, but not warranted, to be
approximately One Hundred Thousand Dollars ($100,000.00). Tenant shall be
entitled to reimbursement for up to Fifty Thousand
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Dollars ($50,000.00) in expenses for roof repairs and/or replacement and fifty
percent (50%) of all fees in lieu of parking and fees in lieu of employee
housing paid by Tenant. Such reimbursement shall be by full offset in
percentage rents payable up to the total reimbursement provided herein, or by a
minimum of one-fifth (1/5) of the total sum per year to be offset against base
rents, or a combination of offsets against base rent in the amount of one-fifth
of the total in each of the first five years and additional percentage rent
until the Tenant has been reimbursed in full for such costs. Upon termination
of this Lease for any reason, including expiration of the term hereof, all
credits with the Town of Xxxxxxx for parking and/or employee housing shall
belong to and be the property of Landlord, without further reimbursement to
Tenant.
6. LATE RENT CHARGES. In the event the monthly rent payments are not paid
within ten (10) clays of the due date, a late charge of two percent (2%) shall
be paid by Tenant. Additionally, said late rent payments shall automatically
accrue interest at an interest rate of twelve percent (12%) from the due date,
which accrual of interest shall continue until the rent payment, together with
accrued interest, is paid. Such interest shall begin to accrue automatically on
all delinquent rent payments (not paid within the ten (10) day grace period) and
shall be payable on demand without notice to Tenant.
7. USE OF THE LEASED PREMISES. The use of the Leased Premises shall be
restricted to retail and catalog sales and offices and such other uses as
Landlord shall approve in writing, which approval will not be unreasonably
withheld, provided that use for food and/or beverage services shall be
prohibited. Furthermore, the Leased Premises shall be used and occupied by
Tenant in a careful, safe and proper manner and Tenant shall pay on demand for
any damage to the Leased Premises caused by the misuse of same by it, its
agents, employees, licensees and invitees. Tenant shall use the Leased Premises
only for purposes not prohibited by the laws, regulations, covenants and
ordinances of the United States, the State of Wyoming and the Town of Xxxxxxx.
Tenant shall not use or keep any substance or material in or about the Leased
Premises which may vitiate or endanger the validity of the insurance on the
Leased Premises or increase the hazard of the risk.
8. ACCEPTANCE OF LEASED PREMISES. Taking possession of the Leased
Premises by Tenant shall be conclusive evidence as against the Tenant that such
premises were in good and
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satisfactory condition when possession of same was taken. Tenant has inspected
the Leased Premises and accept the same in "as is" condition.
9. SUBORDINATION TO MORTGAGE. This Lease shall be and is hereby made
subordinate to any mortgages or other security instruments which may now or
hereafter encumber the Leased Premises, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination need be required by
any mortgagee or security holder. Tenant shall, at Landlord's request, promptly
execute any appropriate estoppel certificate, subordination agreement or
instrument that Landlord may reasonably request in this regard.
10. TAXES AND ASSESSMENTS. Landlord shall pay all real estate taxes, real
estate assessments, and any and all other governmental charges, assessments or
taxes payable in respect to the Leased Premises or any part thereof during the
term of this Lease, but subject to reimbursement as provided in paragraph 5 of
this Lease. Tenant shall be liable for taxes levied against its personal
property, trade fixtures and other property placed by Tenant in, on or about the
Leased Premises.
11. UTILITIES. Tenant shall pay for the use of all the water, sewage,
electrical, gas, telephone, cable television, garbage and other utility services
to or used by and in connection with the Leased Premises. Tenant shall
establish and maintain all utilities accounts in its name.
12. REPAIR AND MAINTENANCE. Tenant acknowledges that the Leased Premises
are in good repair and working order, with the exception of the roof which
Tenant shall undertake to repair or replace. Tenant shall, at its sole expense,
maintain the interior and exterior of the Leased Premises (including, without
limitation, all electrical, plumbing and mechanical systems) in as good order
and repair as it was at the date of the commencement of this Lease, reasonable
wear and tear excepted. Tenant shall not knowingly commit or willingly permit
to be committed any act or thing contrary to the rules and regulations of any
federal, state, municipal or quasi-governmental authority.
Tenant shall permit Landlord, or its representatives, to inspect upon
reasonable notice the Leased Premises and to make repairs to the' Leased
Premises as Landlord may now or hereafter deem to be necessary and/or
appropriate for the Leased Premises. All such repairs shall be done, so far as
practicable, to avoid
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interference with Tenant's occupancy and use of the Leased Premises, provided
that Tenant shall not be entitled to compensation for unavoidable interference
with its occupancy and use.
13. ALTERATIONS. Landlord shall have the right at any time to enter the
Leased Premises to make such additions, repairs or alterations as it may deem
necessary or proper for the safety or preservation of the Leased Premises.
Tenant shall make no alterations in or additions to the Leased Premises
without first obtaining the written consent of the Landlord, and all additions
or improvements made by Tenant shall be deemed a part of the Leased Premises and
permanent structure thereon and shall remain upon and be surrendered with the
Leased Premises at the termination of this Lease by lapse of time or otherwise.
Landlord acknowledges Tenant's intent to remodel the interior and the exterior
of the Leased Premises subject to review and approval of plans by Landlord,
which approval will not be unreasonably withheld.
14. INSURANCE. Landlord shall maintain fire and extended "all-risk"
coverage insurance upon the Leased Premises. Such insurance shall be maintained
with an insurance company authorized to do business in Wyoming in an amount not
less than ______________________________Thousand Dollars ($______) during the
term of the Lease, subject to reimbursement by Tenant as provided in paragraph 5
of this Lease.
Tenant shall maintain at its expense fire and extended coverage insurance
on all of its personal property, including trade fixtures and on all additions
and improvements made by Tenant not required to be insured by Landlord.
Tenant shall, at Tenant's expense, maintain a policy or policies of
comprehensive general liability insurance with the premiums thereon fully paid
on or before due date, issued by and binding upon an insurance company with a
Best Rating Guide A plus Class 15 Rating, such insurance to afford minimum
protection of not less than a single limit of One Million Dollars
($1,000,000.00) in respect to personal injury and/or death to one or more
persons and for property damage. The insurance policy shall name Landlord as an
additional insured and shall cover all risks incident to Tenant's use of the
Leased Premises and business in connection therewith.
Tenant shall furnish Landlord with certificates and copies of all insurance
policies to be maintained by Tenant with evidence of payment of the premiums
thereon. All such insurance policies shall contain a clause or endorsement to
the effect that
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they may not be terminated or materially amended during the term of this Lease
except after fifteen (15) days written notice thereof to Landlord.
15. ASSIGNMENT, SUBLEASE AND MORTGAGE BY TENANT. Tenant shall not assign
or create a security interest in, pledge or encumber this Lease or the Leased
Premises, in whole or in part, or sublet the whole or permit the use of the
whole or any part thereof by any sub-tenant, licensee or concessionaire, unless
Tenant first obtains landlord's written consent. In the event of any such
assignment, subletting, licensing or granting of a concession, Tenant shall
never-the-less remain liable for the performance of all the terms, conditions
and covenants of this Lease (including, without limitation, the covenant to pay
rent).
16. SIGNS. Tenant shall have the right to erect and maintain signs in, on
or about the Leased Premises, provided, that same shall comply with governing
laws, regulations, covenants and ordinances of the United States, State of
Wyoming and the Town of Xxxxxxx.
17. TENANT'S COVENANTS. Tenant covenants that it shall:
(a) Comply with all laws, orders, regulations, rules, ordinances and
covenants of any state or federal statute or local ordinance or
regulation applicable to Tenant and/or its use of the Leased Premises.
(b) Give to Landlord prompt written notice of any accident, fire or damage
occurring on or to the Leased Premises.
(c) Keep the Leased Premises sufficiently heated to prevent freezing of
pipes, waterlines and fixtures.
(d) Keep the Leased Premises orderly, clean, sanitary and free from
objectionable odors and insects, vermin, pets, pests or nuisances.
(e) Do all things reasonably possible to prevent filing of any mechanics'
or other liens against the Leased Premises or any part thereof by
reason of work, labor, services or materials furnished or claimed to
have been furnished to Tenant, or anyone holding the Leased Premises
or any part thereof, through or under Tenant. If any such lien shall
be filed against the Leased Premises, Tenant shall either cause the
same to be discharged of record within twenty (20) days after the date
of the filing of same, or if the Tenant, in Tenant's discretion and in
good faith, determines the lien should be contested, Tenant shall
furnish such security as may be necessary or required to prevent any
foreclosure against Tenant's or Landlord's interest in the Leased
premises. If tenant shall fail to discharge such lien within such
period, or fail to furnish adequate security, then in addition to any
other right of remedy of Landlord, Landlord may but shall not be
obligated to discharge the lien either by paying the
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amount claimed to be due or by procuring the discharge of such lien by
obtaining security or in any other manner available to Landlord.
Nothing herein contained shall imply any consent or agreement on the
part of Landlord to subject Landlord's interest in the Leased Premises
to liability under any mechanics' or other lien law.
(f) Repay Landlord, as additional rent, on demand, all sums disbursed or
deposited by Landlord pursuant to the provisions of this section,
including Landlord's costs, expenses and reasonable attorneys' fees
incurred by Landlord in connection therewith.
(g) Permit no one other than employees, agents, servants and business
invitees to remain in or loiter upon the Leased Premises.
(h) Comply with all reasonable rules and regulations that may be
established, from time to time, by Landlord. Tenant covenants that it
shall not do or suffer to be done anything objectionable to the fire
insurance companies, whereby the fire insurance or any other insurance
now in force or hereafter to be placed on the Leased Premises or any
part thereof shall become void or suspended, or be rated as a more
hazardous risk than at the date when Tenant receives possession
hereunder. In the event of breach of this covenant, in addition to
all other remedies of Landlord, Tenant shall pay to Landlord as
additional rent any increase in insurance premiums.
18. LANDLORD'S COVENANTS OF QUIET ENJOYMENT. The Landlord covenants that
the Tenant, upon paying the rentals and performing the covenants upon its part
to be performed herein, shall peacefully and quietly have, hold and enjoy the
Leased Premises during the term hereof.
19. DAMAGE OR DESTRUCTION TO LEASED PREMISES. If the Leased Premises
shall be damaged by fire, the elements, unavoidable accident or other casualty,
without the fault or negligence of Tenant, or Tenant's servants, employees,
agents, visitors, licensees, invitees or sub-tenants, and the Leased Premises
are not thereby rendered untenantable in whole or in part, Landlord shall, at
its expense, cause such damage to be repaired, and the rent shall not be abated.
If, by reason of such occurrence, the Leased Premises shall be rendered
untenantable only in part, Landlord shall promptly cause the damage to be
repaired and the rent, during such period of repair, shall be abated
proportionately to the portion of the Leased Premises rendered untenantable.
If, by reason of such occurrence, the Leased Premises shall be rendered wholly
untenantable, Landlord shall cause such damage to be repaired and the rent,
during such period of repair, shall be abated in whole. There shall be no
extension of the term of this Lease by reason of such abatement. Notwithstanding
the foregoing provisions, if
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the Leased Premises shall be rendered wholly untenantable by reason of such
occurrence and the Leased Premises cannot be repaired within three (3) months
from the date such damage occurs, Landlord or Tenant shall, at their option,
have the right to declare the balance of the term of this Lease to be null and
void.
If any such damage or destruction occurring to the Leased Premises, whether
partial or complete, shall occur as the result of the fault or any negligence of
Tenant or Tenant's servants, employees, agents, business invitees, licensees or
sub-tenants, there shall be no apportionment or abatement of rent during the
term of this Lease.
20. DEFAULT BY TENANT. The Tenant agrees to observe and perform the
conditions and covenants set forth in this Lease, and further agrees that if
default be made in the payment of any rent and such payment default continues
for ten (10) days following the due date for such payment, or if Tenant shall
fail to observe or perform any of the other conditions or covenants and such
other default shall continue for more than thirty (30) days after written notice
of such default, then and in that event, and as often as the same may happen, it
shall be lawful for Landlord, at its election, with or without previous notice,
to terminate this Lease or to re-enter and repossess itself of the Leased
Premises without termination, with or without legal proceeding, using such force
as may be necessary, and to remove therefrom any personal property belonging to
Tenant without prejudice to any claim for rent or for breach of the covenants
hereof, or without being guilty of any manner of trespass or forcible entry and
detainer. The foregoing described rights shall be non-exclusive and shall be in
addition to any and all of the rights and remedies Landlord may have pursuant to
governing law.
21. PAYMENT AFTER TERMINATION. No payments of money by Tenant to Landlord
after the termination of this Lease, in any manner or after the giving of any
notice by Landlord to Tenant shall reinstate, continue or extend the term of
this Lease or affect any notice given to Tenant prior to the payment of such
money.
22. ABANDONMENT OF LEASED PREMISES. If Tenant shall abandon or vacate the
Leased Premises or close the business opened on the Leased Premises for any
period longer than forty-five (45) consecutive days before the end of the term
of this Lease, or if Landlord re-enters the Leased Premises without termination,
the Landlord may, at its option and without notice
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to Tenant, enter the Leased Premises, and re-let the same, or any part thereof,
as it may see fit, without thereby voiding or terminating this Lease, and, for
the purpose of such re-letting, Landlord is authorized to make any repairs,
changes, alterations or additions in or to the Leased Premises, as may, in the
sole discretion of Landlord, be necessary or desirable for the purpose of such
re-letting, and if a sufficient sum shall not be realized from such re-letting
each month to equal the monthly rental under the provisions of this Lease, then
Tenant agrees to pay such deficiency.
23. INDEMNIFICATION. Tenant shall indemnify Landlord and save it harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury or damage to property occurring in
or about, or arising out of or from the Leased Premises and adjacent sidewalks
and loading areas, or the occupancy or use of the Leased Premises by Tenant or
its sub-tenants, or occasioned wholly or in part by any act or omission of
Tenant, its agents, licensees, business invitees, concessionaires, contractors,
customers, employees or sub-tenants.
In case Landlord shall be made a party to any litigation commenced by or
against Tenant, its agents, licensees, business invitees, concessionaires,
contractors, customers, employees or sub-tenants, Tenant shall protect and hold
Landlord harmless and shall pay all costs, expenses and reasonable attorneys'
fees incurred or paid by Landlord in connection with such litigation.
24. ATTORNEYS' FEES. In the event either party shall find it necessary to
obtain the services of an attorney to enforce any of the covenants and
conditions of this Lease, the prevailing party shall be entitled to
reimbursement for all costs and expenses, including reasonable attorneys' fees,
whether or not litigation is commenced.
25. TRADE FIXTURES. Trade fixtures installed by Tenant in the Leased
Premises shall remain the property of the Tenant and shall be removable at any
time by it on or before the termination of this Lease by lapse of time or
otherwise. Any damage caused to the Leased Premises that is the result of such
removal shall be repaired by Tenant at its expense. Any such trade fixtures not
removed at or prior to the termination shall become the property of Landlord.
Lighting fixtures, whether or not installed by Tenant, shall not be removable at
the expiration or earlier termination of this Lease, and shall become the sole
property of Landlord.
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26. LANDLORD'S ACCESS. Landlord and its agents, employees or other
representatives may enter the Leased Premises at any reasonable time after
reasonable notice for the purpose of (a) inspecting the Leased Premises to
ascertain Tenant's compliance with the terms and conditions of this Lease, (b)
in order to make repairs, additions or alterations as the Landlord deems
necessary, (c) to post notices of non-responsibility under mechanics' lien law,
(d) to exhibit the Leased Premises for sale, lease or mortgage financing, or (e)
for any other reasonable purposes.
27. NOTICES. Any notices required or permitted to be given or served by either
party to the other shall be deemed to have been duly given or served there if in
writing and forwarded by certified mail, postage prepaid, return receipt
requested, to the respective addresses set forth below. Such notices shall be
deemed given upon mailing of same.
Tenant: Coldwater Creek, Inc.
Xxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Landlord: Xxxxxx X. Xxxxxx Trust
c/o Hawkins, Kominsky, XxXxxxx & Associates
P.0. Xxx 0
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxx X. Xxxxxx
Xxxxxxxx, Xxxxxx & Swift
P.0. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
28. AMENDMENT OR MODIFICATION. Tenant acknowledges and agrees that it has
not relied upon any statement, representation, agreement or warranty, except
such as are expressly stated herein, and that no amendment or modification of
this Lease shall be valid or binding unless expressed in writing and executed by
the parties hereto in the same manner as the execution of this lease.
29. MEMORANDUM OF LEASE. The parties may execute a short-form memorandum
of this Lease in recordable form which may, at either parties' option, be placed
of record in the Teton County real estate records.
30. NO PARTNERSHIP. No partnership or joint venture is created by this
Lease. The Landlord and Tenant shall be construed to be that relationship of
landlord and tenant only.
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31. MISCELLANEOUS. Time is of the essence.
No waiver of any breach of any one or more of the conditions or covenants
in this Lease by Landlord shall be deemed to imply or constitute a waiver of any
succeeding or other breach hereunder.
This Lease and its provisions shall be construed and enforced in accordance
with and pursuant to governing Wyoming law.
The headings used in this Lease are for convenience only and are not to be
used in its construction.
Whenever used, the singular shall include the plural, the plural the
singular and the use of any gender shall include all genders.
If there is more than one person comprising the Tenant, the covenants,
agreements, undertakings, and obligations hereunder shall be the joint and
several obligations of all such persons.
This Lease may be executed in multiple counterparts, each of which shall be
deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have executed this Lease to be
effective as of the day and year first above written.
LANDLORD:
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, as Trustee of the
Xxxxxx X. Xxxxxx Trust
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, as Trustee of
the Xxxxxx X. Xxxxxx Trust
TENANT:
/s/ Xxx Xxxxxx
-----------------------------------
COLDWATER CREEK, INC., an Idaho
Corporation
BY: /s/ Xxxxxx Xxxxxx
--------------------------------
its Chief Financial Officer
ATTEST:
BY:
-------------------------------
its
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