ARTICLE 1 -- BASIC LEASE TERMS EXHIBIT 10.47
THIS LEASE is dated for reference purposes only January 1, 1995.
1.1 General Location and
Shopping Center Size:
(a) Location:
Sportmart Plaza
Southwest corner of Harlem Avenue
and Xxxxxxxx Street
Niles, Illinois
(Section 2.1(q))
(b) Size: 120,808 square feet.
(Section 2.1(j))
1.2 Parties and Notice Addresses:
Landlord: H-C Developers, as Agent for
American National Bank and Trust
Company of Chicago, as Trustee
under Trust Agreement dated December 1,
1970, and known as Trust No. 30426,
c/o Xxxxx Xxxxxxxx
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Tenant: SPORTMART, INC., a Delaware corporation
Attn: Legal Department
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
(Sections 3.1 and 31.1)
With copies of all notices to be sent to:
SPORTMART, INC., a Delaware corporation
Attn: Vice President, Real Estate
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
1.3 Size of Store: The Store ("Mart") consists of 59,380 square
feet as depicted on the Site Plan attached hereto as Exhibit B.
(Sections 2.1(r) and 3.2)
1.4 Intentionally Omitted
1.5 Term: Initial Termination Date: August 31, 2013.
1.6 Options: One (1) additional five (5) year period.
(Section 6.1)
1.7 Minimum Rent: Minimum Rent shall be as set forth on Exhibit D,
attached hereto and made a part hereof.
(Article 7)
1.8 Intentionally Omitted.
1.9 Intentionally Omitted.
1.10 Contents of Lease:
This lease (the "Lease") consists of:
Pages 1 through
Sections 1.1 through
EXHIBITS
A. Part I: Legal Description
B. Site Plan
C. Memorandum of Lease
D. Minimum Rent
ARTICLE 2 -- DEFINITIONS
2.1 The terms defined in this Article 2 shall for all purposes
of this Lease and all agreements supplemental hereto have the meanings
herein specified unless expressly stated otherwise.
(a) All Risk Policy: A policy of fire and other property
insurance in the form commonly referred to in the industry as "all
risk" with extended endorsement (false arrest, libel, slander,
assault, battery, invasion of privacy, theft, vandalism and malicious
mischief coverage) and including broad form water damage, or if such
policy is no longer issued, such other policy as would cover the same
risks and perils. Landlord may elect to include coverage for flood
and earthquake but Tenant shall not be required to pay any part of the
premium allocable to such coverages.
(b) Commencement Date: January 1, 1995.
(c) Common Area Charges: Costs incurred by Landlord for
supervision of ongoing maintenance and repair of the Common Areas (but
in no event shall the charge for such supervision exceed fifteen
percent (15%) of the total Common Area Charges exclusive of taxes and
insurance), repairing or resurfacing the parking area provided such
resurfacing is not a capital expenditure as defined below, repainting
and restriping the parking areas, cleaning, sweeping and other
janitorial services, sanitation, maintenance of refuse receptacles,
replanting landscaping directional signs and other markers, upkeep of
lighting and other utilities). In no event shall the term "Common
Area Charges", as defined herein, include any capital expenditures.
"Capital Expenditures" means those expenditures which, in accordance
w i t h generally accepted accounting principles, are not fully
chargeable to current account in the year the expenditure is incurred
as well as any single Landlord expenditure in excess of $5,000.00.
(d) Common Areas: Those portions of, and facilities
within, the Shopping Center or greater land area of which the Store
forms a part, which are intended for the common non-exclusive use of
the occupants, their customers, agents and employees including,
without limitation, parking areas, driveways, malls, walkways, loading
zones and landscaping.
(e) Intentionally Omitted.
(f) Intentionally Omitted.
(g) Gross Sales: The selling price of all merchandise sold
in or from the Store by Tenant, its subtenants, licensees and
concessionaires, whether for cash or for credit, excluding, however,
the following: (i) the sales price of all merchandise returned and
accepted for full credit or the amount of the cash refund or allowance
made thereon; (ii) the sums and credits received in settlement of
claims for loss or damage to merchandise; (iii) the consideration
received in connection with a sale of inventory which occurs other
than in the ordinary course of Tenant's business; (iv) sales taxes, so
called luxury taxes, excise taxes, gross receipt taxes, and other
taxes now or hereafter imposed upon the sale or value of merchandise
or services, whether added separately to the selling price of the
merchandise or services and collected from customers or included in
the retail selling price; (v) receipts from public telephones, vending
machines, sales of tickets and passes, sales of money orders, fees for
fishing/hunting licenses and the collection of public utility bills;
(vi) interest, carrying charges, or other finance charges in respect
of sales made on credit; (vii) sales of fixtures, trade fixtures, or
personal property that are not merchandise held for sale at retail;
(viii) sales to employees at discount, not exceeding three percent
(3%) of total Gross Sales: (ix) labor charges or fees for bowling
ball drilling, racquet restringing, ice skate sharpening, bicycle
assembly, golf club regripping and installation of ski bindings, ski
tuning (including sharpening and waxing) and other similar customer
services; (x) Tenant's accounts receivable, not to exceed two percent
(2%) of Gross Sales, which have been determined to be uncollectible
for federal income tax purposes during the Lease Year provided,
however, that if such accounts are actually collected in a later year,
the amount shall be included in the Gross Sales for such later Lease
Year; (xi) rents, subrents or other consideration received in
connection with an assignment, sublet, license, concession or other
transfer of any portion of the store (however Gross Sales of any such
transferee shall be included); (xii) sales of merchandise ordered by
catalogue regardless of place of order or delivery; (xiii) exchanges
of merchandise between stores where such exchanges are made solely for
the convenient operation of Tenant's business and not for the purpose
of consummating a sale which has been made at, in or from the
Premises; (xiv) receipts from the sale of fishing and hunting
licenses; and (xv) receipts in respect of instructional programs (but
not including merchandise sold in respect thereto).
(h) Intentionally Omitted.
(i) Landlord's Parcel: That certain parcel of land
described in Exhibit "A", together with all appurtenances thereunto
belonging.
(j) Leasable Floor Area: All areas available, or held for
the exclusive use and occupancy of occupants or future occupants of
the Shopping Center, measured from the interior surface of exterior
walls (and from extensions thereof in the case of openings) and from
the center of interior demising partitions. For purposes of computing
Tenant's obligations based upon Leasable Floor Area, the Leasable
Floor Area of the Shopping Center shall be not less than the size
specified in Section 1.1(b). Mezzanines, if any, shall not be
included within the definition of Leasable Floor Area.
(k) Lease Year: The first Lease Year shall extend from the
Commencement Date to the first January 31st following commencement.
Subsequent Lease Years (other than the final Lease Year) shall
commence on February 1st and terminate the following January 31st.
The final Lease Year shall commence on February 1st and terminate on
the expiration or earlier termination of this Lease.
(l) Minimum Rent: The amounts specified in Section 1.7.
(m) Percentage Rent: The term "Percentage Rent" is defined
in Section 8.1.
(n) Intentionally Omitted.
(o) Intentionally Omitted.
(p) Intentionally Omitted.
(q) Shopping Center: Those certain premises with all
appurtenances located as set forth in Section 1.1(a) hereof and
described with particularity in Part I of Exhibit "A".
(r) Store: That portion of the Shopping Center as so
delineated on the site plan attached to this Lease as Exhibit "B"
having the dimensions and containing the Leasable Floor Area specified
in Section 1.3 hereof. Tenant refers to the Store as "Mart" for
internal operation purposes.
(s) Term: References to "Term" of this Lease shall include
the original term and any extension of such Term. The original Term
of this Lease shall start on the Commencement Date and, unless earlier
terminated, expire on the Initial Termination Date specified by
Section 1.5.
ARTICLE 3 -- PREMISES
3.1 The landlord identified in Section 1.2 ("the Landlord")
hereby leases to the tenant identified in Section 1.2 (the "Tenant")
and the Tenant hires from the Landlord, the Store, together with all
appurtenances (collectively, the "Premises"). Tenant has entered into
this Lease in reliance upon the agreement of the Landlord that the
Shopping Center is and will remain retail in character, and, further,
no part of which shall be used as a nightclub, bar, theater,
auditorium, meeting hall, school, or other place of public assembly,
gymnasium (excluding aerobics studios and weight clinics of less than
3,000 square feet), dance hall, billiard or pool hall, massage parlor,
video game arcade, bowling alley, skating rink, car wash, night club
or adult book or adult video tape store, (which are defined as stores
a substantial portion of the inventory of which is not available for
sale or rental to children under 15 years old because it explicitly
deals with or depicts human sexuality). No restaurant (except the
Ponderosa Steak House presently located in the Shopping Center) shall
be permitted in the Shopping Center within five hundred (500) feet of
the Store or in any other portion of the Shopping Center without prior
Tenant consent.
3.2 The Store thus demised and leased unto the Tenant is not a
separate parcel of real property. In the event the Store is less than
the size specified in Section 1.3, Minimum Rent and other charges
shall be proportionately reduced, but this shall not be construed as
permitting a material variance in dimensions or area.
3.3 Landlord warrants that the site plan attached hereto as
Exhibit "B" (the "Site Plan") depicts the land described in Exhibit
"A" Part I and the improvements thereon. The buildings depicted
thereon contain no more than one (1) story (but mezzanines having
Leasable Floor Area not in excess of one third (1/3) of the occupant's
ground floor Leasable Floor Area, when not used for sales floor
p u rposes shall be permitted). The Site Plan is a material
consideration for the Tenant entering into this Lease, and no change,
alteration, or addition shall be made to the Site Plan, including but
not limited to the configuration of the Common Areas, methods of
ingress and egress, direction of traffic, lighting, curbing and
building heights and stories without the express written consent of
the Tenant.
3.4 No construction shall be permitted in the Shopping Center,
except for emergency repairs diligently pursued, during the period
from October 1st to December 31st of any year, without the prior
written consent of the Tenant, which consent may include conditions
designed to eliminate interference with the operation of the Shopping
Center or the effect of such construction upon the Tenant's business.
3.5 Upon execution of this Lease, that certain lease between
Landlord and Tenant dated December 30, 1972, as previously amended
from time to time, shall be cancelled, terminated, discharged and
superseded.
ARTICLE 4 -- INTENTIONALLY OMITTED
ARTICLE 5 -- LEASE TERM
5.1 The Term of this Lease shall commence on the Commencement
Date and, unless earlier terminated, shall expire as specified in
Section 1.5, subject to the Tenant options to extend the term as
provided in the following Article 6. Upon request of the Tenant,
Landlord shall execute a written acknowledgment of the Commencement
Date.
ARTICLE 6 -- OPTION PERIODS
6.1 By notice to Landlord not less than ninety (90) days prior
to the expiration of the Term, the Tenant may extend the original term
of this Lease for one (1) additional period of five (5) years as
designated in Section 1.6 hereof, on the terms and conditions set
forth herein. Should Tenant neglect to exercise the option by the
date specified above, Tenant's right to exercise shall not expire
until thirty (30) days after notice from Landlord of Tenant's failure
to exercise the option.
ARTICLE 7 -- MINIMUM RENT
7.1 During the Term of this Lease, the Minimum Rent shall be as
specified in Section 1.7. Each monthly installment of rental shall be
payable in advance on or before the tenth (10th) day of each calendar
month during the Term. If the Lease commences other than on the first
day of a calendar month, the first month's Minimum Rent shall be
prorated accordingly and paid within the Minimum Rent for the first
full month. All rent and other payments to be made by Tenant to
Landlord shall be sent to the place to which notices are required to
be sent, unless otherwise directed by the Landlord in writing.
ARTICLE 8 -- PERCENTAGE RENT
8.1 (a) Percentage Rent for each Lease Year during the Term
which contains twelve (12) full calendar months shall be a sum equal
to the amount by which two and one-half percent (2.5%) of Tenant's
Gross Sales made during each Lease Year exceeds the Minimum Rent paid
for such year.
(b) The Percentage Rent for any Lease Year having less than
twelve (12) full months shall be based upon Gross Sales for the twelve
(12) months immediately preceding the Commencement Date (as to the
first Lease Year) and for the twelve (12) month period immediately
preceding the expiration or earlier termination of the Lease (as to
the final Lease Year). The Percentage Rent due for such period shall
be established by multiplying the Percentage Rent which would have
been due for such twelve (12) month period by a fraction, the
numerator of which is the number of days in such Lease Year and the
denominator or which is 365.
8.2 Within seventy-five (75) days after the close of each Lease
Year, Tenant shall submit to Landlord a statement indicating the
amount of its Gross Sales for the previous Lease Year and the amount
expended for the above mentioned expenses which are to be deducted and
which relate to the Lease Year in question. Percentage Rent due, if
any, shall accompany such statement.
8.3 (a) Tenant shall maintain adequate records for a period of
one, year after the close of each Lease Year for the purpose of
allowing Landlord to verify the reported Gross Sales for such year.
At any time within said one year, Landlord or its agents may audit
such records during normal business hours at Tenant's records center
after not less than fifteen (15) days' prior written notice to Tenant.
Audit shall be conducted in manner least apt to interfere with
Tenant's business operations and audit or inspection of records other
than pertaining to Premises is prohibited. Landlord shall not conduct
such an audit of Tenant's records more than once in any given Lease
Year. Failure of Landlord to conduct audit within one (1) year
following provision to Landlord of annual Gross Sales statement shall
constitute waiver by Landlord of right to dispute Tenant's Gross Sales
as specified within such annual Gross Sales statement.
(b) In the event an inaccuracy is disclosed after any audit
of Tenant's Gross Sales, an adjustment shall thereupon be made.
(c) Any information obtained by Landlord as a result of any
audit shall be held in strict confidence by Landlord excepting such
may be disclosed by Landlord to proposed lender or purchaser with
respect to a prospective sale, mortgage, lease or sale-leaseback of
the Shopping Center or when Landlord is required to comply with lawful
orders of a court or governmental agency.
8.4 The Minimum Rent provided for in this Lease is acknowledged
by the parties to be sufficient consideration for the leasehold
granted hereby and the Percentage Rent specified herein is in addition
to such adequate consideration.
ARTICLE 9 -- USE
9.1 The Store may be used for any lawful retail use including
but not limited to the following specific uses: the retail sale of
sporting goods, sports apparel and active wear (including without
limitation athletic footwear and athletic uniforms of all kinds) and,
such other merchandise as may be sold from time to time in Tenant's
similarly merchandised stores. Tenant agrees to comply with all
applicable laws and ordinances in its operations at the Premises; not
to create hazardous or noxious conditions that would constitute a
nuisance or would increase the premiums payable for casualty insurance
coverage of the Shopping Center; and not to conduct liquidation,
bankruptcy or sidewalk sales at the Premises without Landlord's
consent. Tenant shall operate under the trade name "Sportmart", and
neither Tenant nor any person, firm or entity affiliated with Tenant
shall open, operate or acquire any financial interest in any store
under that name or any other similar store selling similar merchandise
within a three (3) mile radius of the Store. Tenant shall,
continuously and uninterruptedly during the Term, during usual
business hours and on such days as comparable businesses in the
Shopping Center and elsewhere in the area are open for business,
occupy and use the entire Store for the purposes stated herein.
9.2 Landlord warrants to Tenant that Tenant, while operating a
store for the above use(s), will not be in violation of (a) any
exclusives or other agreements which Landlord may have with other
occupants, lessees, lenders, governmental authorities or any others,
or (b) restrictions imposed by any governmental authority or body.
Landlord shall hold Tenant harmless from any claims to the contrary
including loss suffered by reason thereof.
9.3 Landlord agrees that Landlord shall not suffer any Leasable
Floor Area within the Shopping Center to be used for the sale of
sporting goods, sports apparel and/or athletic footwear, provided,
however, that Landlord shall be permitted to lease other premises in
the Shopping Center to retailers whose use of the premises includes
the "Incidental Sale" of such merchandise. "Incidental Sale" of such
merchandise is defined as the sale or display of not more than (a)
1000 square feet of retail display space in another tenant's premises,
or (b) twenty-five percent (25%) of the total square footage of
another tenant's premises, whichever is less, used for the display of
such merchandise. Landlord will fully cooperate with Tenant in any
and all of Tenant's efforts to enforce the exclusive use provisions of
this Lease.
ARTICLE 10 -- REAL ESTATE TAXES
10.1 (a) Landlord shall pay, on or before the due date, all
taxes and assessments levied against the Store or the real property of
which the Store forms a part, including land and all Common Areas.
(b) In addition to all rental herein reserved, Tenant shall
pay to Landlord its pro-rata share of the difference between (i) real
estate taxes levied upon and assessed against the Shopping Center for
each tax year of the Term, and (ii) real estate taxes levied against
the Shopping Center for the tax year 1973. Such taxes shall be
payable not later than fourteen (14) days prior to delinquency,
provided Landlord has previously provided Tenant with a copy of the
Tax xxxx and written notice to pay same. Tenant's schedule of
payments (annual or semi-annual) shall be concurrent with and
proportionate to Landlord's schedule of payments to the taxing
authority. Landlord shall furnish Tenant with proof of payment of
Taxes within thirty (30) days after the delinquency date thereof. If
Landlord fails to provide such proof of payment, Tenant may withhold
from sums coming due under this Lease amounts sufficient to recover
Tenant's tax payment to Landlord. In the event of assessments which
may be paid in installments by reason of bonding or otherwise,
Landlord may elect to make payment under the installment plan. In any
event, Tenant's payment obligations under this Article shall be as if
Landlord made payment over the longest period of time permitted by the
assessment and Tenant shall bear no liability as to installments due
following the expiration or earlier termination of this Lease.
(c) For all purposes of this Lease, the Tenant's pro-rata
share is defined as that fraction in which the numerator is the
Leasable Floor Area in the Store and the denominator of which is the
Leasable Floor Area in the Shopping Center. Such computation shall be
made separately for each tax year.
(d) Should the Tenant be in occupancy during only a portion
of the first or final tax year, Tenant shall be responsible to
Landlord for a pro-rata portion of its tax obligation as described
herein, based on the portion of such tax year included in the Term of
this Lease. This Article includes the Tenant's total responsibility
for taxes both for the Store and Common Areas.
10.2 There shall be excluded from the tax xxxx to which Tenant
contributes for the purposes of computing Tenant's share (a) income,
excess profits, estate, single business, inheritance, succession,
transfer, franchise, capital or other tax or assessment upon Landlord
or the rentals payable under this Lease; (b) assessments (not ad
valorem taxes) relating to the initial construction of the Shopping
Center or capital improvements (but not replacements) subsequently
constructed therein or with respect thereto; (c) any charge, such as a
water meter charge and the sewer rent based thereon, which is measured
by the consumption of the actual user of the item or service for which
such charge is made; and (d) any increase in taxes caused by a "change
of ownership" as defined in Section 60, California Revenue and
Taxation Code.
10.3 Any rebates, refunds, or abatements of real estate taxes
received by the Landlord subsequent to payment of taxes by the Tenant
shall be refunded to Tenant on a pro rata basis within ten (10) days
of receipt thereof by Landlord. Any such rebate, refund or abatement
realized by the Landlord prior to payment by the Tenant shall result
in an immediate reduction in the Tenant's proportionate share of taxes
then due to the Landlord.
10.4 In the event the real property taxes on the Common Areas and
the improvements thereon are separately assessed from the buildings of
which the Store forms a part, then in that event, Tenant shall be
responsible for its pro-rata share as described in Section 10.1(c), of
the taxes on the Common Areas and the improvements thereon.
10.5 Tenant shall have such rights to contest the validity or
amount of real estate taxes as are permitted by law, either in its own
name or in the name of the Landlord, in either case with the
Landlord's full cooperation. Any resultant refund, rebate or
reduction shall be used first to repay the expenses of obtaining such
relief. Landlord shall provide Tenant with government notices of
assessment (or reassessment) in time sufficient to reasonably permit
Tenant, at Tenant's election, to make contest; and if Landlord fails
to do so, then there shall be excluded from the tax xxxx to which
Tenant contributes, any increased taxes resulting from such assessment
(or reassessment). The term "contest" as used in this Section 10.6
means contest, appeal, howsoever denominated.
ARTICLE 11 -- FIRE INSURANCE
11.1 Landlord will maintain at all times during the Term an All
Risk Policy insuring against damage to any portion of the Store and
the Shopping Center (including the store fronts), and appurtenances
thereto. Such insurance shall be in (be full amount of replacement
value, without deduction for physical depreciation and shall provide
that the proceeds of any loss shall be payable in the manner provided
for in this Lease. Landlord shall, at least ten (10) days prior to
the Commencement Date, and thereafter upon request of Tenant, provide
Tenant with a certification of such insurance coverage from an insurer
licensed to do business within the state in which the Store is
located, and which insurer is rated A and XII or better in Best's
Insurance Guide, which certificate shall indicate, among other things,
that the Tenant is an additional insured along with the Landlord and
that the Store and all the improvements and Landlord's fixtures
appurtenant thereto, have been insured to their full replacement
value, without deduction for physical depreciation.
11.2 The Tenant shall be responsible to reimburse the Landlord
its pro-rata share of the premium costs of the insurance described in
Section 11.1 above. Tenant's schedule of payments for reimbursement
shall be established in the same manner as described in Section
10.1(b) above for taxes. Tenant's pro-rata share for purposes of this
Article shall be that fraction the numerator of which is the Leasable
Floor Area of the Store and the denominator of which is the Leasable
Floor Area in the entire Shopping Center, or improved structure,
covered by the insurance policy which is the subject of the premium
provided, however, at Tenant's election, Tenant's pro-rata share shall
depend on the size and value of the Store and other improvements
insured by the policy of insurance and the rate basis applicable to
each.
11.3 Intentionally omitted.
11.4 In lieu of Landlord's assuming the obligation specified in
Section 11.1 above, subject to Tenant's reimbursement all as described
in Sections 11.1 and 11.2 hereof, Tenant may, at its option, elect to
carry such insurance on the Store and the Shopping Center, including
such other endorsements as the Tenant in its judgment deems prudent
under the circumstances, all at Tenant's sole costs and expense in
which event Tenant shall not be responsible for reimbursement under
Section 11.2, and Landlord shall, to the extent Tenant has, at
Tenant's own expense, purchased casualty insurance coverage for the
entire Shopping Center, pay over to Tenant any and all real insurance
premium reimbursements collected by Landlord from any of the other
Shopping Center tenants and shall otherwise reimburse Tenant or cause
Tenant to be reimbursed for any and all costs of the Shopping Center's
casualty insurance in excess of Tenant's pro rata share of such costs.
11.5 (a) As used in this Section, the term "Lender" means the
holder of indebtedness secured by a first lien upon the Exhibit "A"
Part I real property, whether the interest creating such lien be
denominated as mortgage, deed of trust, security agreement, vendor's
lien or otherwise, but only if Lender (a) is a financial institution,
such as a bank, savings and loan, insurance company, or other entity
regularly engaged in making loans secured by real property, and (b)
has fifty million dollars ($50,000,000) of such loans outstanding.
(b) Insurance proceeds for damage or destruction to the
Store ("Proceeds"), if under one dollar ($1.00) per square foot of
Leasable Floor Area in the Store shall be paid directly to Landlord.
If in excess of such amount, the Proceeds shall be deposited with
Lender provided Lender agrees to apply the Proceeds in the manner
described herein. If Lender does not so agree, or there is no Lender,
then the Proceeds shall be deposited with a bank, trust company, or
title insurance company (collectively with Lender referred to as
"Stakeholder") designated by Tenant and approved by Landlord, for use
as provided in Article 20. Stakeholder shall disburse the same to the
party performing restoration upon certification by the architect in
charge of restoration that the amounts requested have been paid in
connection with such restoration or shall be due to contractor,
subcontractors, materialmen, architects or other persons who have
rendered services or have furnished materials for such restoration and
upon the completion of such restoration the remaining balance of any
of such proceeds shall be paid to Landlord upon demand.
ARTICLE 12 -- LIABILITY INSURANCE
12.1 Tenant shall at all times during the Term keep in force a
policy or policies of public liability insurance, or an endorsement on
a blanket liability insurance policy or policies, against claims for
personal injuries, death or property damage, occurring on, in or about
the Shopping Center, with a combined single limit of not less than ONE
MILLION DOLLARS ($1,000,000). Said policy or policies shall contain
Contractual Liability Insurance recognizing the liability assumed in
Section 23.1 hereof.
12.2 Landlord shall pay over to Tenant any and all sums paid to
Landlord by other tenants of the Shopping Center as reimbursemnts for
the costs of liability insurance coverage for the Shopping Center and
shall otherwise reimburse Tenant or cause Tenant to be reimbursed for
any and all costs of the Shopping Center's liability insurance in
excess of Tenant's pro rata share of such costs.
12.3 Each policy of insurance herein maintained by the Tenant
shall provide that: (a) the same is not contributory with the
coverage which the other party may carry and is primary insurance
coverage and not excess insurance coverage or overage insurance
coverage; and (b) the company writing said policy will give at least
twenty (20) days' notice in writing of any cancellation, lapse, or
failure to renew, to the party designated on the insurance certificate
as the holder thereof.
12.4 Tenant agrees to deliver to the Landlord a certificate of
insurance evidencing the existence in force of the policies of
insurance described in this Article. The certificate shall provide
that such insurance shall not be canceled or materially amended unless
ten (10) days' prior written notice of such cancellation or amendment
is given to the Landlord.
ARTICLE 13 -- WAIVER OF SUBROGATION
13.1 Tenant and Landlord hereby waive and release any and all
right of recovery against the other, including employees and agents,
arising during the Term for any and all loss or damage to any property
located within or constituting a part of the Shopping Center which
loss or damage arises from the perils covered by an All Risk Policy or
which right of recovery arises from loss of earnings or rents
resulting from damage caused by such a peril. This mutual waiver is
in addition to any other waiver or release contained in this Lease.
Landlord and Tenant shall give written notice to its insurers of the
provisions of this waiver and release and have its insurance policies
endorsed, if required, to prevent invalidation of insurance coverage
by reason of this waiver and release.
ARTICLE 14 -- MAINTENANCE & REPAIR BY TENANT
14.1 Subject to Article 20, Tenant shall, at its expense,
maintain the Store and the entire Common Areas of the Shopping Center
in good repair and good condition throughout the Term of this Lease.
Landlord shall pay over to Tenant any and all sums collected by
Landlord from other tenants of the Shopping Center as reimbursements
for the costs of maintaining the Common Areas and shall otherwise
reimburse Tenant or cause Tenant to be reimbursed for any and all
costs of maintaining and repairing the Common Areas in excess of
Tenant's pro rata share of such costs.
ARTICLE 15 -- INTENTIONALLY OMITTED
ARTICLE 16 -- REPAIRS REQUIRED BY GOVERNMENTAL AUTHORITIES
16.1 Any repairs, alterations or other improvements required by
governmental authority which results from the particular retail use of
the Tenant, shall be done by the Tenant at its sole cost and expense.
Any such work, however, which is required of the Shopping Center in
general, or of all similar buildings in the area of the Shopping
Center, shall be done by Tenant at the sole cost and expense of the
Landlord.
ARTICLE 17 -- ALTERATIONS
17.1 The Tenant may make non-structural alterations and
improvements to the interior of the Store in a good and workmanlike
manner, in conformity with all law, ordinances and regulations of
public authorities having jurisdiction. Tenant shall not make any
alterations to the foundation, roof, or any structural portions of the
Store without first obtaining the written approval of the Landlord.
Such approval may not be unreasonably withheld and shall be deemed
granted if Tenant is not notified in writing of a reasonable basis for
withholding such approval within ten (10) days of notifying Landlord
thereof. It is further agreed that upon termination of this Lease,
Tenant may, provided no structural damage to the Store will be caused
thereby, remove its furniture, fixtures and equipment and the Landlord
will accept the Store as altered without any obligation upon the
Tenant to restore the Store to its former condition.
17.2 Tenant may place on and about the Premises, and on the
s h opping center roof, equipage used in its ordinary business
operations, such as without limitation HVAC, dumpster, and devices
used for the reception and transmission of signals through the
atmosphere, such as satellite dish.
17.3 Landlord shall cooperate with Tenant efforts to obtain such
government permits, licenses, variances, authorizations and approvals
as may be required so as conduct retail business within the Store, and
from time to time perform the alterations contemplated by this
Article, as well as to construct the signage authorized by Article 32
of this Lease. To the extent necessary or convenient for such
p u rpose, Tenant may prosecute such efforts, including signing
applications, in the name of Landlord.
ARTICLE 18 -- COMMON AREAS
18.1 Tenant, as well as its agents, employees and customers
(collectively, "Customers"), shall have and is granted complete,
nonexclusive and undisturbed access to, and use of all Common Areas.
Landlord shall use best efforts to prevent Common Area use by other
than Shopping Center occupants and their Customers. In no event shall
Customer use of Common Areas be conditioned upon payment of parking or
other charge by Tenant or Tenant's customers. As provided in Section
14.1 hereof, the Tenant shall maintain all Common Areas in good
condition, repair and cleanliness, including ice and snow removal, and
free of any impediments to easy and safe movement within the Common
Areas, including having the areas well lighted during Tenant's normal
business hours and until 11:00 P.M. every day (and until midnight
during the month of December).
18.2 In no event shall Tenant be responsible for payment of any
part of the initial cost of improvements made by Landlord to Common
Areas.
ARTICLE 19 -- UTILITIES
19.1 Landlord agrees to provide that the Tenant's Store shall at
all times have available to it necessary utilities services including
electric, water, gas, telephone and other necessary utility lines, as
well as refuse collection service and sewerage lines capable of
adequately providing for Tenant's needs, but in no event of less
capacity than on the first day of the Term of this Lease. Tenant
agrees to pay all use charges for all utilities serving the Store
during the Term.
ARTICLE 20 -- CASUALTY
20.1 Partial. In the event that the Store shall be partially or
totally destroyed, by fire or other casualty insurable under fire and
extended risk insurance, so as to become partially or totally
untenantable the same shall be repaired as speedily as reasonably
possible at the expense of Landlord, unless Landlord shall elect not
to rebuild as hereinafter provided, and during the period of said
repair or restoration, the rent hereunder shall xxxxx to the extent of
that portion of the Premises that is untenantable.
20.2 Percent of Damage and Option to Terminate. If more than 25%
of the Store shall be destroyed or so damaged, by fire or other
casualty insurable under fire and extended risk coverage, as to become
(as to said 25%) wholly untenantable, or in the event the Store shall
be partially or totally destroyed by a cause or casualty other than
those covered by fire and extended risk insurance, then in any such
event, Landlord may , if it so elects, rebuild the Store or restore
the Store to a condition good and fit for occupancy wiyhin a
reasonable time after such destruction or damage, or may give notice
to Tenant within 90 days after such damage or destruction terminating
this Lease as of the date of such damage or destruction. If Landlord
elects to repair or restore the Store, it shall, within 90 days after
such damage or destruction, give Tenant notice of Landlord's intention
to repair and proceed with reasonable speed to effect such repairs.
Unless Landlord elects to terminate this Lease as aforesaid, this
Lease shall remain in full force and effect and rent shall xxxxx
hereunder during the period of such repair and construction to the
extent of that portion of the Store that is untenantable.
20.3 Landlord's Obligation of Restoration. If Landlord elects or
is obligated to repair the Store under the terms of this Article,
Landlord's obligation to repair shall in no event include the
obligation to rebuild, repair or replace Tenant's stock in trade,
fixtures, furniture, furnishings, floor coverings and equipment. The
parties waive such rights of Lease termination as are granted to them
under the laws of the state wherein the Store is located, it being
their agreement that the rights of termination in the event of
casualty, as set forth herein, shall be exclusive.
ARTICLE 21 -- CONDEMNATION
21.1 Total. In the event that the whole of the Premises, or such
portion of the Premises as will render the balance thereof incapable
of being restored to an economic unit reasonably suitable for the
Tenant's continued occupancy for the purposes and uses for which the
Premises are leased, shall be permanently taken or condemned for a
public or quasi-public use or purpose by any competent authority, then
and in either of those events, the Term of this Lease shall terminate
from the date when possession of the Premises shall be required for
such public use or purpose.
21.2 Partial. In the event only a part of the Premises
shall be taken or condemned for a public or quasi-public use or
purpose by any competent authority and the balance thereof can be
restored to an economic unit reasonably suitable for Tenant's purposes
by the expenditure of a sum not in excess of the award, this Lease
shall not terminate and Landlord, at its cost and expense, shall
within a reasonable time, repair and restore the Premises. Any award
paid as a consequence of such taking or condemnation shall be paid to
Landlord, and shall be applied, as far as necessary, to the cost of
repair and restoration. Any sums remaining unexpended after such
application shall be retained by and belong to Landlord. From the
date such part of the Premises is actually taken, there shall be
equitable reduction of the Minimum Rent, and during the period of such
repair and restoration, Minimum Rent will xxxxx as to that portion of
the Premises which is untenantable.
21.3 Landlord's Option to Terminate. In the event only a
part of the Premises shall be taken or condemned for or a public or
quasi-public use or purpose by any competent authority, and the
balance thereof can be restored to an economic unit suitable for
Tenant's purposes, but only by the expenditure of a sum in excess of
the award, or in the event any portion of the premises shall be so
taken or condemned at such time as the then remaining Term of this
Lease is less than 25% of the original Lease Term, then in either
event Landlord shall have the option of electing to repair and restore
the Premises or terminate this Lease. If the Landlord elects to
terminate this Lease, it shall do so by notice in writing to Tenant
within 60 days of the rendition of the award and (in the event it is
terminated for the former reason) shall accompany such notice with the
certification of a duly licensed architect specifying the minimum cost
of restoration (which specified cost shall be in excess of the amount
of such award). Failure of the Landlord to serve such notice shall
constitute election to restore and repair the Premises. In the event
of the Lease termination pursuant to this paragraph, the termination
shall be effective as of the date when possession of the portion of
the Premises was required by the taking authority, and current rental
shall in such case be apportioned as of the date of such termination,
and the award shall belong solely to Landlord.
21.4 Distribution of Award. All compensation awarded or paid
upon such a total or partial taking of the Premises shall belong to
and be the sole property of Landlord, whether such compensation be
awarded or paid as compensation for diminution in value of the
leasehold or to the fee; provided, however, that Landlord shall not be
e n titled to any award made to Tenant for loss of business,
depreciation to, and cost of removal of stock and fixtures. Each
party agrees to execute and deliver to the other all instruments that
may be required to effectuate the provisions of this Article 21.
ARTICLE 22 -- MECHANIC LIENS
22.1 Neither Tenant nor Landlord shall permit any mechanic's,
materialman's or other lien against the Store or the Shopping Center
in connection with any labor, materials or services furnished or
claimed to have been furnished. If any such lien shall be filed
against the Store or Shopping Center, the party charged with causing
the lien will cause the same to be discharged, provided, however, that
either party may contest any such lien, so long as the enforcement
thereof is stayed.
ARTICLE 23 -- INDEMNIFICATION
23.1 With respect to its use and occupancy of the Store, Tenant
agrees to save Landlord harmless from and indemnify and defend
Landlord against any and all injury, loss, damage, liability (or any
c l a ims in respect of the aforementioned), costs or expenses
(including, without limitation, attorney's fees, reasonable
investigative and discovery costs), of whatever nature, to any person
or property caused or claimed to be caused by or resulting from any
act, omission or negligence of Tenant or agent of Tenant, provided
that the Landlord shall, upon becoming aware of such claim or damage,
promptly notify Tenant. Tenant's obligation hereunder shall be
limited to the amount in excess of any insurance proceeds in event of
casualty damage.
23.2 With respect to its maintenance of the Store, its operation
and maintenance of the Common Areas, the manner of design and
construction of the Shopping Center, and the manner of construction
and design of the Common Areas, Landlord agrees at Tenant's option, to
save Tenant harmless from and indemnify and defend Tenant against any
and all injury, loss, damage, liability (or any claims in respect of
the aforementioned), costs or expenses (including, without limitation,
attorney's fees, reasonable investigation and discovery costs), of
whatever nature, to any person or property caused or claimed to be
caused by or resulting from any act, omission or negligence of the
Landlord or its employees or agents, provided that Tenant, upon
becoming aware of such claim or damage, shall promptly notify Landlord
as soon as reasonably possible.
23.3 The provisions of this Article as to property damage shall
be subject to the provisions of Article 13 regarding Waiver of
Subrogation.
ARTICLE 24 -- QUIET ENJOYMENT & NONDISTURBANCE
24.1 Landlord agrees to promptly place Tenant in possession of
the Store in accordance with the time provisions of this Lease as a
condition to Tenant's obligation to pay rent hereunder. Landlord
further represents and warrants that it has full authority to execute
and perform this Lease and to grant the subject leasehold estate to
Tenant. Additionally, it is agreed that Tenant shall peaceably and
quietly have, hold and enjoy the Store with all appurtenances during
the Term and without any manner of hindrance or interference with its
quiet enjoyment, possession and use.
24.2 Landlord may, at reasonable times and upon notice to Tenant,
conduct reasonable inspections of the Store.
24.3 Nondisturbance - Existing Loans. Landlord covenants to
obtain from each lender, each lessor ("Overlessor") and each Litigant
Claimant whose interest in the Shopping Center is paramount to
Landlord's at the time of execution hereof, or at any time prior to
the recordation of the Memorandum of Lease specified herein, an
executed nondisturbance agreement assuring Tenant that notwithstanding
any default by the Landlord to the lender or Overlessor, or any
foreclosure or deed in lieu thereof (or Overlessor's termination
proceedings), or any exercise of right by Litigant Claimant, Tenant's
rights under this Lease shall continue in full force and effect and
its possession of the Store shall remain undisturbed except in
accordance with the provisions of this Lease so long as Tenant is not
in default hereunder so as to permit Lease termination. Such
agreement(s) must be satisfactory in form and content to counsel for
Tenant. As used in this Article the term "lender" means each holder
of indebtedness secured by a lien upon the Exhibit "A" real property,
whether the interest creating such lien be denominated as mortgage,
deed of trust, security agreement, vendor's lien or otherwise. As
used herein the term "Litigant Claimant" means each entity which has
established or at any time prior to recordation of the Memorandum of
Lease specified herein establishes actual or constructive notice that
it claims an interest in the Shopping Center and/or the Store which is
paramount to Landlord's at the time of execution hereof, or at any
time prior to the recordation of the Memorandum of Lease specified
herein whether notice of such interest be established by Lis Pendens,
Notice of Mechanics Lien or otherwise.
24.4 Tenant shall upon Landlord's request, subordinate this Lease
in future to any first lien placed by Landlord upon the Store, or the
Shopping Center or building of which the Store forms a part, with an
insurance company, bank or any other institutional lender, provided
that such lender executes a Nondisturbance Agreement providing that if
Tenant is not then in default under this Lease so as to justify Lease
termination, this Lease shall not terminate as a result of the
foreclosure of such lien, or conveyance in lien thereof, and the
Tenant's rights under this Lease shall continue in full force and
effect and its possession be undisturbed except in accordance with the
provisions of this Lease. Tenant will, upon request of the
lienholder, be a party to such an agreement, and will agree that if
such lienholder succeeds to the interest of the Landlord, Tenant will
recognize said lienholder (or successor in interest of the lienholder)
as its Landlord under the terms of this Lease. Such agreement must be
satisfactory in form and content to counsel for Tenant.
24.5 Within ten (10) days of a written request therefor by either
party hereto, the party receiving such request shall provide to the
requesting party a written statement acknowledging the commencement
date of this Lease, that this Lease is in full force and effect (if
the same be true), that this Lease has not been modified (or, if it
has, stating such modifications) and providing such other information
as requesting party reasonably requests.
ARTICLE 25 -- TENANT DEFAULT
25.1 The occurrence of either of the following shall constitute a
default by Tenant pursuant to this Lease: (i) a failure by Tenant to
pay rent within ten (10) business days of Tenant's receipt of written
notice from Landlord specifying such failure; or (ii) a failure by
Tenant to perform obligations pursuant to this Lease other than as
specified in (i) above, within thirty (30) days of Tenant's receipt of
written notice from Landlord specifying such failure or, if it
reasonably would require more than thirty (30) days to cure such
failure, within a time reasonably necessary to cure such failure after
Tenant's receipt of such written notice. Upon Tenant's default,
Landlord may, in addition to any other remedy available at law, upon
written notice, terminate this Lease and retake possession of the
Store and remove all persons and property therefrom.
25.2 It is expressly understood and agreed in the event Tenant
makes an assignment for the benefit of creditors, or if any
proceedings are commenced under the provisions of the Bankruptcy Act
whereby Tenant seeks to be, or would be, discharged of its debts, or
the payment of its debts are sought to be delayed, this Lease shall
not become an asset in such proceedings, however, the commencement of
such proceedings shall not affect this Lease or permit its termination
so long as all covenants on the part of the Tenant to be performed
shall be performed by Tenant or a party claiming under Tenant.
25.3 Landlord waives such liens, if any, to which it may have a
right with respect to the merchandise, furniture, trade fixtures and
other personal property of Tenant located on or about the Store and
shall from time to time execute such documents as Tenant may
reasonably request to acknowledge such waiver.
ARTICLE 26 -- LANDLORD DEFAULT
26.1 If Landlord should be in default in the performance of any
of its obligations under this Lease, which default continues for a
period of more than thirty (30) days after receipt of written notice
from Tenant specifying such default, or if such default is of a nature
to require more than thirty (30) days for remedy and continues beyond
the time reasonably necessary to cure (provided Landlord shall
undertake action to cure such default within such 30 day period and
diligently pursue such efforts to completion within a period not to
exceed a total of ninety (90) days), then Tenant shall have the right
to exercise any of the following rights (which shall be in addition to
any other rights or remedies available by law):
(a) To terminate this Lease and surrender possession of the
Store, whereupon Tenant's obligation for the payment of rent and all
other charges hereunder shall cease upon the date of surrender.
(b) To perform any act or contract for the performance
t h ereof and incur any expense reasonably related thereto and
thereafter deduct the same from the next installment or installments
of rent accruing hereunder.
ARTICLE 27 -- ATTORNEYS FEES
27.1 If either party becomes a party to any litigation concerning
this Lease, the Store or the Shopping Center by reason of any act or
omission of the other party or its authorized representatives, and not
by any act or omission of the party that becomes a party to that
litigation or any act or omission of its authorized representatives,
the party that causes the other party to become involved in the
litigation shall be liable to that party for reasonable attorney's
fees, court costs, investigation expenses, discovery costs and costs
of appeal incurred by it in the litigation.
27.2 If either party commences an action against the other party
arising out of or in connection with this Lease, the prevailing party
shall be entitled to have and recover from the losing party,
reasonable attorney's fees, costs of suit, investigation costs and
discovery costs, including costs of appeal. When this Lease imposes
upon a party an obligation to indemnify the other, the indemnification
obligation shall include the obligation to pay the indemnitees
reasonable attorney's fees, costs and disbursements, whether the
indemnitee be the plaintiff or defendant.
ARTICLE 28 -- ASSIGNMENT
28.1 Tenant may not assign this Lease, or sublet the Store, or
any portion thereof, without Landlord's prior, written consent, which
Landlord shall not unreasonably withhold. Upon any assignment or
sublease, Tenant shall remain principally obligated under the terms of
this Lease unless Tenant is specifically released from its obligations
hereunder by a written instrument duly authorized, executed and
delivered by Landlord. Without limiting any of the foregoing, upon
any assignment or sublet of this Lease or the Store by Tenant during
the Option Period provided for by Article 6 and Section 1.6 hereof,
Tenant shall pay to Landlord one half (1/2) of any and all profit
realized by Tenant as a result of such assignment or sublet.
ARTICLE 29 -- HOLDING OVER
29.1 If the Tenant shall remain in possession of the Store or any
portion thereof after the expiration of the Term in the absence of an
agreement in writing between the Landlord and Tenant, the party
remaining in possession shall be deemed a Tenant at sufferance, until
acceptance of rent by Landlord, at which time the person in possession
shall be come a Tenant from month-to-month at the same rental and
under the same terms and conditions as existed immediately prior to
the expiration of the Lease.
ARTICLE 30 -- SUCCESSORS IN INTEREST
30.1 The terms, conditions and covenants herein contained shall
inure to the benefit of and be binding upon the heirs, assigns and
other successors in interest to the parties hereto.
ARTICLE 31 -- NOTICES
31.1 Any notice to be given or served in connection with this
Lease shall be in writing and shall be served by certified mail or by
reputable air courier service which provides written evidence of
delivery, addressed as specified in Section 1.2 hereof, or to such
other address as requested by either party in writing. Service shall
be deemed effective seven (7) days after deposit in the U.S. mail in
accordance herewith or on the business day following deposit air
courier service in accordance herewith. Either party by written
notice to the other may designate two additional parties to receive
copies of notices sent to it. Such designees may be changed by
written notice.
ARTICLE 32 -- SIGNS
32.1 Tenant has erected and may maintain upon the exterior of the
Store and upon each pylon serving the Shopping Center a sign or signs
which are deemed appropriate to the conduct of its business. Landlord
is deemed to have consented to Tenant's existing building and pylon
signage upon execution of this Lease. Additionally, Tenant may
display in the windows of the Store, from time to time, signs of a
temporary nature advertising business transacted by Tenant in the
Store, so long as those window signs are professionally prepared. All
pylon signs at the Shopping Center will identify the Shopping Center
as "Sportmart Plaza."
ARTICLE 33 -- MEMORANDUM OF LEASE
33.1 This Lease shall not be recorded. However, a Memorandum
thereof in the form attached hereto as Exhibit "C" shall be executed,
in recordable form, by both parties concurrently herewith and recorded
by Landlord with the official charged with recordation duties for the
county in which the Shopping Center is located, with directions that
it be returned to Tenant. Upon expiration or earlier termination of
this Lease, Tenant shall cooperate with Landlord in executing a
Memorandum, in recordable form, acknowledging Tenant's release of its
leasehold interest in the Shopping Center.
ARTICLE 34 -- TENANT RIGHT OF FIRST OFFER
34.1 Tenant's Right of First Offer. If during the Term of this
Lease, Landlord intends to offer for sale the Store, the legal parcel
upon which the Store is located or the Shopping Center (collectively
referred to herein as the "subject property"), Landlord shall so
notify Tenant of that intention in writing, which notice shall contain
the terms and conditions (collectively "terms") that would be
acceptable to Landlord. If within ten (10) business days after
receipt of such notice, Tenant does not notify Landlord that Tenant
will purchase the subject property under the terms, Landlord, within
the ensuing six (6) month period shall be free to sell the subject
property to any third party named in the Third Party Offer on the
terms; provided, however, that a failure or refusal by Tenant to
purchase the subject property on the terms shall not relieve Landlord
(or any successor in interest to Landlord) of its obligations under
this Article in respect of subsequent instances of Landlord's (or its
successor's) desire to sell the subject property or any portion
thereof; and provided further that if Landlord shall, during the
aforsesaid six (6) month period, materially alter the terms to the
benefit of purchaser, or materially alter the description of the
subject property, Landlord shall so notify Tenant and afford Tenant an
additional five (5) business days within which Tenant may, by notice
to Landlord, elect to purchase the subject property on the terms as so
modified. If Tenant elects to purchase the subject property on the
terms, the terms shall constitute a binding agreement of purchase and
s a le between Landlord and Tenant and govern their subsequent
performance, provided however, time of performance shall be suitably
extended to take into account time elapsed between presentation to
Tenant of the terms and Tenant's acceptance.
ARTICLE 35 -- ACCORD AND SATISFACTION
35.1 No payment by Tenant or receipt by Landlord of a lesser
amount of Minimum Rent or Percentage Rent due hereunder shall be
deemed to be other than on account of the earliest rent due, nor shall
any endorsement or statement on any check or letter accompanying such
check or payment be deemed an accord and satisfaction, and Landlord
may accept such check without prejudice to Landlord's rights to
recover the balance of such rent or payment or pursue any other remedy
available in this Lease, at law or in equity.
ARTICLE 36 -- GENERAL CONDITIONS
36.1 Any sum accruing to the Landlord or Tenant under the
provisions of this Lease which shall not be paid within ten (10) days
following written notice that such sum is due ("Notice Period") shall
bear interest from the expiration of the Notice Period, at the rate of
ten percent (10%) per annum until paid.
36.2 If any term, covenant, condition or restriction of this
Lease is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the provisions hereof shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated thereby.
36.3 Nothing contained in this Lease shall be deemed or construed
by the parties hereto or by any third person to create the
relationship of principal and agent, or of partnership, or of joint
venture, or of any other association between the parties other than
Landlord and Tenant, or to prevent Landlord or Tenant from entering
into ventures in direct competition with the Shopping Center, or the
Store.
36.4 Time is of the essence of the performance of each provision
of this Lease.
36.5 The waiver of performance of any covenant, term or condition
of this Lease by Landlord or Tenant shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. The
various rights, options, elections, powers and remedies of the parties
contained in this Lease shall be construed as cumulative and no one of
them exclusive of any other or of any legal or equitable remedy which
either party might otherwise have in the event of a breach by the
other, and the exercise of one right or remedy by a party shall not in
anyway impair its right to any other right or remedy.
36.6 For purposes of computing dates for expirations, options,
rental adjustments or cancellations (except for those specifically
designated in Article 5 hereof), any partial month at the commencement
of the Term shall be disregarded.
36.7 Wherever in this Lease the Landlord or the Tenant is
required to give its consent or approval to any action on the part of
the other, such consent or approval shall not be unreasonably
withheld.
36.8 Except for corrections to Annual Statements required in
Section 18.4 hereof, all charges due from Tenant to Landlord for which
the Tenant must be billed by the Landlord, must be billed within one
(1) year of the date the charge is incurred by the Landlord or the
Landlord will have waived its right to reimbursement which may have
been established in any paragraph of this Lease.
36.9 Words of gender used in this Lease shall be deemed to
include other genders, and singular and plural words shall be deemed
to include the other, as the context may require.
36.10 Landlord and Tenant shall and do hereby indemnify,
defend, and hold the other harmless from all claims of brokerage
commission or finders fee arising through them. This covenant shall
survive the expiration, or earlier termination of the term of this
Lease.
36.11 Each of the covenants of this Lease shall be deemed
dependent upon each other covenant hereof.
36.12 Paragraph headings in this Lease are for convenience
only, are not a part of the agreement of the parties, and shall not
constitute an aid in interpreting this Lease.
36.13 This Lease shall be construed in accordance with and
governed by the laws of the state wherein the Store is located, except
as otherwise required by mandatory provisions of law.
36.14 In the event Landlord furnishes materials or services,
or contracts with another for materials or services to be furnished,
and Tenant under this lease must reimburse Landlord for all or part of
the cost thereof, Tenant payment obligations shall be no greater than
if the materials or services had been purchased or furnished at a
reasonable and customary price.
36.15 If Landlord is other than a natural person, each
individual executing this Lease on behalf of the named Landlord
represents and warrants that he is duly authorized to execute this
Lease on behalf of the named Landlord in accordance with a duly
adopted resolution of Landlord's board of directors and Landlord's
bylaws (if Landlord is a corporation) and in accordance with the
agreement of partnership (if Landlord is a partnership) and by
delivery hereof warrant that execution by no other signatory is
required and will hold Tenant harmless from any claim to the contrary
(and loss suffered by reason thereon.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the first day of January, 1995.
LANDLORD
H-C Developers, as agent as aforesaid
By: /S/ XXXXXX XXXXXXXX
Its:
TENANT
Sportmart, Inc.
By: /S/ XXXXXXXX XXXX
Its:
EXHIBIT D
Minimum Rent Schedule
For the period beginning on the Commencement Date through and
including August 31, 2003, Minimum Rent shall be $225,000.00 per
annum.
For the period beginning on September 1, 2003 through and
including August 31, 2008, Minimum Rent shall be the lesser of (a)
$250,000.00 per annum or (b) the Minimum Rent for the prior 60 month
period increased by five (5) times the increase in the CPI for the
immediately preceding 60 month period.
For the period beginning on September 1, 2008 through and
including August 31, 2013, Minimum Rent shall be the lesser of (a)
$275,000.00 per annum or (b) the Minimum Rent for the prior 60 month
period increased by five (5) times the increase in the CPI for the
immediately preceding 60 month period.
For the Option Period, Minimum Rent shall be the greater of (a)
$325,000.00 per annum or (b) the then prevailing fair market rental
for the Premises.
Minimum Rent shall be payable monthly, in the manner set forth in the
Lease.
For purposes of determining Minimum Rent hereunder and under the
Lease, the "increase in the CPI" in each of the foregoing calculations
shall be the result of a fraction, the numerator of which is the CPI
for the month of September preceding the effective date of the
applicable increase and the denominator of which is the CPI for the
month of September preceding the immediately preceding sixty (60)
month period.
"CPI" shall mean the Consumer Price Index-United States All Items for
All Urban Consumers published by the Bureau of Labor Statistics for
the U.S. Department of Labor. If the CPI shall become unavailable or
if it shall be substantially revised, the Landlord shall select and
substitute therefor a comparable index reflecting changes in the cost
of living or the purchasing power of the consumer dollar published by
any government agency, a major bank or financial institution, a
university or a recognized financial publication, which comparable
index shall take into account any changes in the methodology of
determining the CPI from that previously used.
