ASSIGNMENT AND ASSUMPTION OF LEASE AND GUARANTY
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND GUARANTY
("Assignment") is made and entered into this 22 day of December,
2005 by and among SILVER CAPITAL NET LEASE FUND I, LLC, a Virginia
limited liability company ("Assignor") and AEI INCOME & GROWTH FUND
25 LLC, a Delaware limited liability company, as to an undivided
sixty (60.0%) percent interest as a tenant in common, and AEI FUND
MANAGEMENT XVII, INC., a Minnesota corporation, as to an undivided
forty (40.0%) percent interest as a tenant in common (together
collectively referred to as "Assignee").
RECITALS
WHEREAS, Gart Bros. Sporting Goods Company, a Colorado
corporation (collectively "Tenant") is the tenant under that
certain lease, dated as of December 10, 2001 (as the same may have
been modified, supplemented, amended or assigned, the "Lease"),
between Edgemark Development LLC, a Colorado limited liability
company ("Original Landlord") and Tenant and pursuant to which
Lease, Tenant leases that certain premises described on Exhibit A
attached hereto and incorporated herein by this reference, in
Sedgwick County, Kansas (the "Premises").
WHEREAS, Gart Sports Company ("Guarantor") has executed a
Unconditional Guaranty of Lease dated December 10, 2001 (the
"Guaranty");
WHEREAS, a Short Form Memorandum of Lease was recorded on
March 12, 2002 in Deed Book 2399, page 0916, in the Sedgwick
County Recorder's Office;
WHEREAS, Edgemark Development LLC, a Colorado limited
liability (predecessor to the Landlord) assigned the Lease to
Sports Wichita LLC, a Kansas limited liability company by that
Assignment and Assumption of Lease dated January 22, 2002;
WHEREAS, Original Landlord conveyed the Premises to Assignor
on July 1, 2003 in that certain Special Warranty Deed recorded on
July 2, 2003 in Deed Book 2728, page 3492, in the Sedgwick County
Recorder's Office, and assigned the Lease to Assignor by that
Assignment and Assumption of Lease dated July 1, 2003.
WHEREAS, on the date hereof, Assignor is conveying the
Premises to Assignee pursuant to the terms and conditions of that
certain Agreement of Purchase and Sale Agreement dated as of
December___, 2005 between Assignor, as Seller, and AEI Fund
Management, Inc. (predecessor-in-interest to Assignee), as
Purchaser (as subsequently amended, collectively the "Purchase
Agreement").
WHEREAS, in connection with Assignor's conveyance of the
Premises, Assignor desires to assign its right, title and interest
in and to the Lease and the Guaranty to Assignee and Assignee
desires to accept the assignment thereof and assume Assignor's
right, title and interest in and to the Lease and the Guaranty.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Assignor
and Assignee agree as of the date hereof (the "Effective Date"), as
follows:
1. As of the Effective Date, Assignor hereby gives, grants,
bargains, sells, conveys, transfers and sets over unto Assignee,
its successors and assigns, all of Assignor's right, title and
interest in and to the Lease and the Guaranty.
2. Assignee hereby accepts the foregoing assignment, and hereby
assumes and agrees to be bound by and perform all of Assignor's
obligations and liabilities to be performed and/or occurring
under the Lease or the Guaranty on or after the Effective Date.
3. Assignor hereby agrees to indemnify, defend and hold
Assignee harmless from any liability, loss, cost or expense
arising out of a failure to perform the obligations of Landlord
under the Lease accruing prior to the Effective Date. Assignee
hereby agrees to indemnify, defend and hold Assignor harmless
from any liability, loss, cost or expense arising out of a
failure to perform the obligations of Landlord under the Lease
accruing from and after the Effective Date.
4. Assignee hereby agrees that Assignor may, at Assignor's
election and expense, proceed at law or equity to collect any
delinquent rents accruing under the Lease prior to the Effective
Date. Assignor hereby agrees that Assignee shall have no
obligation to collect any rent due prior to the Effective Date
under the Lease; provided, however, that in the event Assignee is
paid rent from a tenant that has delinquent rent accruing prior
to the Effective Date, and such payment is in excess of current
rent due and payable under the Lease and any collection costs
incurred by Assignee to collect such rents, then Assignee agrees
to pay such excess amount to Assignor as soon as reasonably
practicable after the date of receipt by Assignee. In the event
that Assignor is paid any rents after the Effective Date,
Assignor agrees to pay such to Assignee as soon as reasonably
practicable after the date of receipt by Assignor.
5. If any action is instituted by Assignor or Assignee for the
purpose of enforcing or interpreting any provision of this
Assignment, the prevailing party in such action shall be entitled
to its reasonable attorneys' fees, costs and other expenses,
provided, however, there shall be no prevailing party in a
pretrial motion, voluntary dismissal, favorable settlement or
otherwise, other than entry of a final judgment and such fees,
costs and expenses may be recovered in the same action or in a
separate proceeding.
6. This Assignment shall be governed and construed in
accordance with the laws of the State of Kansas.
7. This Assignment shall be binding on the parties hereto and
their respective successors and assigns.
8. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date and year first above written.
"ASSIGNOR"
SILVER CAPITAL NET LEASE FUND I,
LLC, a Virginia limited liability company
By: Silver Capital Net Lease
Fund Manager, LLC, a Virginia
limited liability company,
Manager
By: Silver Capital, LLC, a
Delaware limited liability
company, Manager
By: /s/ Xxxxx D Silver
Name: Xxxxx D Silver
Title: President/CEO
STATE OF_______________ )
) SS.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ___
day of December, 2005, by ______________________, of Manager of
Silver Capital Net Lease Fund I, a Virginia limited liability
company, on behalf of the company.
WITNESS my hand and official seal.
Signature
(Seal)
Notary Public
"ASSIGNEE" AEI INCOME & GROWTH FUND 25 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its
Managing Member
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X Xxxxxxx
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The foregoing was acknowledged before me this ____ day of
December, 2005, by Xxxxxx X Xxxxxxx, in his capacity as the
President of AEI Fund Management XXI, Inc., a Minnesota
corporation, the Managing Member of AEI Income & Growth Fund 25
LLC, a Delaware limited liability company, who acknowledged the
execution of the foregoing instrument to be the voluntary act and
deed of said corporation by authority of its board of directors
on behalf of the company.
[Seal] /s/ Xxxxx X Xxxxxxxxx
Print Name: Xxxxx X Xxxxxxxxx
My Commission Expires: 1-31-10
AEI FUND MANAGEMENT XVII, INC.
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X Xxxxxxx
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The foregoing was acknowledged before me this ____ day of
December, 2005, by Xxxxxx X Xxxxxxx, in his capacity as the
President of AEI Fund Management XVII, Inc., a Minnesota
corporation, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation
by authority of its board of directors on behalf of the company.
[Seal] /s/ Xxxxx X Xxxxxxxxx
Print Name: Xxxxx X Xxxxxxxxx
My Commission Expires: 1-31-10
EXHIBIT A
(Legal Description)
Parcel 1:
Xxx 0, Xxxxx 0, Xxxxxx & Recreation Addition to Wichita, Sedgwick
County, Kansas, more specifically described as follows:
Beginning at the Northeast corner of Xxx 0, Xxxxx 0, Xxxxxx &
Recreation Addition to Wichita, Sedgwick County, Kansas; thence,
South 0 degrees 00'00" East a distance of 500.00 feet to the
Southeast corner of said Lot 2; thence North 90 degrees 00'00"
West a distance of 490.90 feet to the Southwest corner of said
Lot 2; thence North 0 degrees 00'00" East a distance of 500.00
feet to the Northwest corner of said Lot 2; thence, North 90
degrees 00'00" East a distance of 490.90 feet to the point of
beginning.
Parcel 2:
A non-exclusive easement for the benefit of Parcel 1 as created
by the instrument dated October 10, 1994 and recorded November
17, 1994, on Film 1489, Page 1020, for the purpose of joint
ingress and egress over and across the north 75 feet of the east
25 feet of Xxx 0, Xxxxx 0, Xxxxxx & Recreation Addition to
Wichita, Sedgwick County, Kansas.
Parcel 3:
A non-exclusive easement for the benefit of Parcel 1 as created
by the instrument dated November 6, 1996 and recorded November 8,
1996, on Film 1652, Page 1358, for the purpose of vehicular (and
pedestrian) ingress, egress, passage and delivery and
installation, construction, repair and maintenance of utilities
over, under, and across the following described premises:
Commencing at the Northeast corner of Xxx 0, Xxxxx 0, Xxxxxx &
Recreation Addition to Wichita, Sedgwick County, Kansas; thence
South along the East line of said Lot 1 a distance of 75.00 feet
for the point of beginning; thence continuing South without
deflection 381.94 feet; thence with a deflection angle 89,a57'01"
right-West 140.43 feet; thence following the arc of a curve to
the left having a radius of 63.00 feet Southwesterly 48.77 feet;
thence continuing tangent from said curve 10.21 feet to the
Westerly line of said Lot 1; thence with a deflection angle
90,a00'00" right-Northwesterly along the Westerly line of said
Lot 1 a distance of 30.00 feet; thence with a deflection angle
90,a00'00" right-Northeasterly 10.21 feet; thence following the
arc of a curve to the right having a radius of 93.00 feet
Northeasterly 72.00 feet; thence continuing tangent from said
curve 95.48 feet; thence following the arc of a curve to the left
having a radius of 30.00 feet Northeasterly 47.10 feet; thence
continuing tangent from said curve and parallel with the East
line of said Lot 1 a distance of 321.98 feet; thence with a
deflection angle 90,a00'00" right-East parallel with the North
line of said Lot 1 a distance of 15.00 feet to the point of
beginning.
Parcel 4:
A non-exclusive easement for the benefit of Parcel 1 as created
by the instrument dated October 10, 1994 and recorded November
17,1994 on Film 1489, Page 1019, for the purpose of constructing,
maintaining, and repairing a drainage system, over, along, and
under the following described tracts of land to-wit: The
centerline of a 10 foot drainage easement described as follows:
Beginning at a point on the East line and 15 feet South of the
Northeast corner of Xxx 0, Xxxxx 0, of said Addition; thence
West, parallel to and 15 feet South of the North line of said Lot
1, 305 feet; thence Northwesterly to a point on the West line and
5 feet South of the Northwest corner of said Lot 1; AND The
centerline of a 10 foot drainage easement described as follows:
Beginning at a point on the East line and 39 feet North of the
Southeast corner of Xxx 0, Xxxxx 0, of said Addition; thence
Southwesterly to a point on the West line and 46.03 feet
Northwest of the Southwest corner of said Lot 1.
Parcel ID #: 113070210100100A
Common Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxx
LEASE
BETWEEN
EDGEMARK DEVELOPMENT LLC,
A COLORADO LIMITEDLIABILITY COMPANY
LANDLORD
AND
GART BROS. SPORTING GOODS COMPANY,
A COLORADO CORPORATION
TENANT
DATE: DECEMBER 10, 2001
COMMERCIAL LEASE
THIS LEASE made and entered into as of the 10th day of
December, 2001 by and between EDGEMARK DEVELOPMENT LLC, a
Colorado limited liability company, having an office at 000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (hereinafter called
the "Landlord"), and GART BROS. SPORTING GOOPS COMPANY, A
COLORADO CORPORATION having an office at 0000 X Xxxxxxx Xxx,
Xxxxxxxxx Xxxxxxxx, 00000 (hereinafter called the "Tenant").
WITNESSETH
WHEREAS, Landlord is or is about to become the owner of
certain land ("Land") legally described in Exhibit A attached
hereto, upon which sits a retail building (the "Building");
WHEREAS. Landlord desires to lease to Tenant and Tenant
desires to lease from Landlord, upon the telms and conditions
hereinafter set forth, the Premises and all appurtenant rights
thereto.
NOW, THEREFORE, .in consideration of the mutual covenants
and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged the parties hereto covenant and agree as follows:
SECTION 1 DEFINITIONS
1.1 "Commencement Date" is defined in Section 2.2.
1.2 "Common Areas" means all those portions of the
Development which have been designated and improved for common
use, including; without being limited to: all parking areas;
access roads; sidewalks; passageways; landscaped areas; statuary
and other works; of art; ramps and walks, and the like.
1.3 "Default Rate" shall mean twelve percent (12%).
1.4 "Development" means the Land and all improvements
located thereon, including, without limitation, the Building.
1.5 "Floor Area" means the actual number of square feet of
floor space within the exterior walls of all floors of the
Building, measured to the exterior surface of the exterior walls,
including any basements, and including stairs, interior
elevators, escalators, air conditioning and other interior
equipment rooms; but excluding loading docks and platforms,
transformer vaults, utility penthouses or utility enclosures and
any mezzanine space.
1.6 "Gross Sales Break Point" means the product resulting
from dividing the minimum annual rent by 0.02.
1, 7 "Land" means the property legally described on
Exhibit A hereto.
1.8 "Landlord" as used in this Lease means only the owner
or owners at the time in question of the Premises, and in the
event of any transfer or conveyance of title to the Premises. the
seller's respective successors or assigns shall be deemed to be
"Landlord" hereunder.
1.9 "Lease Year" is defined in Section 7.3,
1.10 "Mortgage" shall be deemed to include a mortgage
or deed of trust
1.11 "Mortgagee" shall be deemed to include the mortgage,
trustee or beneficiary of a deed of trust or mortgage.
1.12 "Premises" shall be deemed to mean the area defined in
Section 2.1.
1.13 "Rent" shall be deemed to include the minimum annual rent,
percentage rent, additional rent and any other sums due from
Tenant to Landlord hereunder.
1.14 "Rent Commencement Date" shall be March 1, 2002.
1.15 "Tenant" as used in this Lease means only the
owner or owners at the time in question of the Tenant's interest
in this Lease, and in the event of any transfer or permitted
assignment of such interest, the assignee or transferee shall be
deemed to be, Tenant" hereunder; however, Tenant's continued
liability hereunder in the event of a transfer shall be
determined pursuant to Section 18 hereof.
SECTION 2 PREMISES AND TERM
2.1 PREMISES: Landlord hereby leases and demises unto
Tenant and Tenant hereby leases and takes from Landlord, for the
term, at the rental, and upon the covenants, terms and conditions
hereinafter set forth inside portion of the Building containing
approximately 51,683 square feet of Floor Area, as defined below.
During the term hereof and subject to the terms hereof, Tenant
shall also have the non-exclusive right to use the Common Areas.
Landlord covenants that it has not and will not grant to anyone
other than Tenant any right to use the Common Areas other than
(i) pursuant to the Permitted Exceptions (as defined in Section
19.1); or (ii) to another tenant, owner or occupant of the
Development after Landlord has effected a Recapture (as defined
in Section 18.1).
2.2 TERM: Except as otherwise provided herein the term of
this Lease shall commence (the "Commencement Date'} on the date
Landlord acquires the Premises, and the Termination Date shall be
February 28, 2017. Landlord shall have no obligations for the
completion or remodeling of the Premises, and Tenant shall accept
the Premises in their, "as is", condition on the date that the
Premises are delivered to Tenant. Tenant, by taking possession
of the premises shall be deemed to have inspected the Premises
and all of its systems and other improvements and agreed that the
Premises were, as of the date of taking possession, in good order
repair and condition. No promise of Landlord to alter, remodel,
decorate, clean, or improve the Premises or other parts of the
Development and no representation or warranty, express or
implied, respecting the condition of the Premises or other .parts
of the Development has been made by Landlord to Tenant, unless
the same is contained herein or made a part hereof.
SECTION 3 OPTIONS TO RENEW
3.1 RENEWAL OPTIONS: Tenant shall have, and is hereby
granted, three (3) separate options to extend the initial term of
this Lease upon the terms covenants, and provisions herein
contained, for successive periods of five (5) years each so long
as Tenant is not in default under this Lease at the time of the
exercise of the applicable renewal option. Each such option shall
be exercisable by Tenant's giving notice to Landlord of Tenant's
intention to exercise the same not less than six (6) months prior
to the expiration date of the then current term provided,
however, that. if Tenant shall fail to give any such notice of
exercise within the aforesaid time limit, Tenant's right to
exercise its option shall nevertheless continue until 30 days
after Landlord shall have given Tenant written notice of
Landlord's election to terminate such option and Tenant may
exercise its option at any time until the expiration of said 30
day period. If Tenant does not exercise its option by giving
Landlord written notice thereof on or before the end of said
thirty (30) day period, then Tenant's right to extend the Lease
as provided in this Section shall terminate and be of no further
force or effect.
SECTION 4 TENANT'S USE OF BUILDING
4.1 USE OF BUILDING: Tenant may use the Premises for the
operation of a retail sporting goods store or any other retail
use permitted under applicable zoning ordinances and under the
Permitted Exceptions. Landlord covenants and agrees that, so long
as Tenant operates the Premises for the general sale of sporting
goods it will not lease any other space in the Development or in
any real property adjacent to the Development owned by Landlord
to any person whose primary purpose is (i) the general sale of
sporting goods, (ii) the sale of brand name athletic clothing,
(iii) the sale of athletic shoes or (iv) operating a sporting
goods specialty store (the "Exclusive'}. The Exclusive shall
permanently terminate upon thirty (30) days written notice to
Tenant in the event that Tenant ceases to actively operate the
Premises for the general sale of sporting goods as its primary
purpose and Tenant fails to reopen the Premises prior to the end
of said 30 day notice period (excluding such discontinuance due
to damage or destruction of the Premises, Remediation Work
pursuant to Section 20, restoration of the Building pursuant to
Section 14, or other causes described in Section 27.7 hereof).
SECTION 5 LEASE SUPPLEMENT
5.1 ACCEPTANCE OF BUILDING: Upon commencement of the term
of this Lease, at the request of either party, Landlord and
Tenant shall execute a supplement to this Lease confirming the
Commencement Date of the original term of this Lease, the
termination date of the original term of this Lease, the Floor
Area of the Premises, and such other matters as Landlord or
Tenant may reasonably request.
SECTION 6 CONSTRUCTION
6.1 TENANT'S ALTERATIONS: Tenant covenants and agrees not
to make any alterations in or additions to the Premises (all such
alterations are referred to herein collectively as "Alterations")
without in each such instance first obtaining the Written consent
of Landlord, which shall not be unreasonably withheld or delayed.
Landlord's consent to any Alterations by Tenant or Landlord's
approval of the plans, specifications and working drawings for
Tenant's Alterations shall create no responsibility or liability
on the part of Landlord for their completeness, design
sufficiency, or compliance with all laws, rules and regulations
of governmental agencies or authorities now in effect or which
may hereafter be in effect. Tenant, at its expense, shall pay all
engineering and design costs incurred by Landlord attributable to
the Alterations and obtain all necessary governmental permits and
certificates required for any Alterations to which Landlord has
consented and shall cause such alterations to be completed in
compliance therewith and with all applicable laws and
requirements of public authorities and all applicable
requirements of Landlord's insurance carriers. All Alterations
which Tenant is permitted to make shall be performed in a good
and workmanlike manner, using new or like new materials and
equipment at least equal in quality to the original installations
in the Premises. All repair and maintenance work required to be
performed by Tenant pursuant to the provisions of this Section 6
and any Alterations permitted by Landlord pursuant to the
provisions hereof, shall be done at Tenant's expense by persons
requested by Tenant and authorized in Writing by. Landlord. If
Landlord authorizes persons requested by Tenant to perform such
work, prior to the commencement of any such work on request,
Tenant shall deliver to Landlord certificates issued by insurance
companies qualified to do business in the State of Kansas,
evidencing that workmen's compensation, public liability
insurance, and property damage insurance, all in the amounts,
with companies and on forms satisfactory to Landlord, are in
force and effect and maintained by all contractors and
subcontractors engaged by Tenant to perform such work. All such
policies shall name Landlord and any Mortgagee as an additional
insured, and any Mortgagee as a loss payee. Each such certificate
shall provide that the same may not be cancelled or modified
without ten (10) days' prior written notice to Landlord and such
Mortgagee. Further, Landlord and such Mortgagee shall have the
right to post notices in the Premises, including, but not limited
to, notice of Landlord's nonresponsibility for construction of,
alteration or repair to, the Premises, in locations which will be
visible by parties performing any work on the Premises stating
that Landlord is not responsible for the payment for such work
and setting forth such other information as Landlord may deem
necessary. Upon the expiration or earlier termination of this
Lease, except for Alterations approved by Landlord in writing,
Landlord shall have the right to require that Tenant remove all
or any of the Alterations, and in such event, Tenant shall
promptly remove at Tenant's expense the Alterations specified by
Landlord and restore the Premises to their condition prior to the
making of the same, reasonable wear and tear and casualty
excepted. Notwithstanding the foregoing, Tenant shall be allowed
to make interior, nonstructural changes to the Premises without
Landlord's prior written consent; however, for all Alterations
costing in excess of $250,000.00 in any consecutive twelve (12)
month period, Tenant shall provide Landlord with fourteen (14)
days' advance written notice of said changes. Tenant's schedule
for completing the same, and any information relating to the
Alterations reasonably requested by Landlord.
6. 1.1 Tenant shall keep the Development in as good
order, condition, and repair and in an orderly state, as when
they were entered upon loss by fire or other casualty and at the
end of the term, reasonable wear and tear excepted. Subject to
Landlord's obligation to make repairs in the event of certain
casualties as set forth in Section 14 below, and Landlord's
obligation to perform certain repairs pursuant to Sections
8.1,15.1 and 15.2, Landlord shall have no obligation for the
repair or replacement of any portion of the Development which is
damaged or wears out during the term "hereof regardless of the
cause therefore, including but not limited to, the roof, parking
lot, and heating, ventilating, air conditioning systems or any of
Tenant's property or betterments in the Development.
6.1.2 In addition, Tenant agrees to indemnify,
protect and hold Landlord, its contractors, agents and employees
harmless from and against any and all claims losses costs
liabilities, suits, actions, damages or expenses (including
without limitation, consequential damages and attorneys' fees and
costs) arising from or in any way related to the construction of
the Alterations.
During the term of the lease as extended, Landlord shall pay the
cost of Tenant's Alterations that improve the building on the
Development and remain Landlord's property upon the expiration or
termination of this Lease (which may include the cost of
architectural and engineering plans for the same), up to a
minimum of Five Hundred Thousand and No/100 Dollars ($500,000.00)
(the "Allowance"). The cost of all Alterations in excess of the
Allowance to which Tenant is entitled as set forth above shall be
at Tenant's expense. The Allowance will be paid promptly
following Tenant's written demand therefore accompanied by lien
releases, evidence of completion of Alterations and any other
information relating to the Alterations reasonably requested by
Landlord. Any unused portions of the Allowance following July 1,
2002 shall be forfeited by Tenant. The Allowance shall be paid in
a maximum number of five (5) installments, including the final
installment requesting payment of retainage. Any amount of the
Allowance remaining after the fifth (5th) installment payment
shall be forfeited by Tenant.
Prior to each payment of the Allowance, the following
information shall have been obtained by the Tenant, at its
expense, and submitted to the Landlord, which information shall
be in form and -substance satisfactory to the Landlord, (a) a
request for payment signed by the Tenant, accompanied by billing
statements, vouchers and invoices, which request for payment
shall expressly warrant that the work for which the payment is
requested has been performed in accordance with the approved
plans and specifications; (b) proof that all invoices for labor
and materials have been .paid, except those contained in the
current request for payment; (c) final lien waivers from all
payees (contractors, subcontractors and material suppliers) under
previous requests for advances and conditional lien waivers from
all payees (contractors, subcontractors and material suppliers)
under the current request for payment (the form of lien waiver
shall be acceptable to Landlord and its title company); (d) a
report from the architect which shall specify the percentage of
completion of construction. and provide detailed comments on
specific work performed since the date of the last such report;
and ( e) evidence satisfactory to Landlord that prior to the
final payment, 10% retainage has been withheld by Tenant under
its construction contract. Prior to the commencement of Tenant's
initial improvements to the Premises to which the Allowance shall
apply, Tenant shall provide Landlord with a copy of its general
contractors construction contract, and any other related
documents requested by Landlord for Landlord's prior review and
written approval. At Landlord's request, Landlord shall be made a
third party beneficiary of said general contractors contract. No
changes shall be made to said construction contract without
Landlord's prior written approval, except for changes (i) that do
not affect Landlord's rights or Tenant's obligations hereunder,
or (ii) involving individual (or a series of, related) change
orders with a net increase of $250,000 or less, provided the same
do not involve the structural portions of the Building or
exterior of the Building, in which event Landlord's approval
shall be required
6.2 MECHANICS; LIENS: Tenant shall payor cause to be paid
all costs for work done by Tenant or caused to be done by Tenant
on the Development of a character which will or may result in
liens on Landlord's interest therein, and Tenant will keep the
Development free and clear of all mechanics' liens, and other
liens on account of work done for Tenant or persons claiming
under it. Tenant hereby agrees to indemnify, defend, and save
Landlord harmless of and from all liability, loss, damage, costs,
or expenses. including attorneys' fees, on account of any claims
of any nature whatsoever including claims or liens of laborers or
materialmen or others for work performed for or materials or
supplies furnished to Tenant or persons claiming under Tenant.
Should any liens be filed or recorded against the Development or
any action affecting the title thereto be commenced as a result
of such work (which term includes the supplying of materials),
Tenant shall cause such liens to be removed of record within five
(5) days after notice from Landlord. If Tenant desires to contest
any claim of lien, Tenant shall either (i) post a bond as
required by applicable law, which causes the lien to be removed
as a lien against all or part of the Development, or (ii) furnish
to Landlord adequate security of at least one hundred fifty
percent (150%) or the amount of the claim, plus estimated costs
and interest and. if a final judgment establishing the validity
or existence of any lien for any amount is entered. Tenant shall
pay and satisfy the same at once. If Tenant shall be in default
in paying any charge for which a mechanic's lien or suit to
foreclose the lien has been recorded or filed and shall not have
given Landlord security as aforesaid, Landlord may (but without
being required to do so) pay such lien or claim and any costs,
and the amount so paid, together with interest thereon at the
Default Rate and reasonable attorney's fees incurred in connection
therewith, shall be immediately due from Tenant to Landlord.
6.3 COMPLIANCE WITH NEW OR MODIFIED GOVERNMENTAL
REGULATIONS;
Notwithstanding anything in this Lease to the contrary, except as
provided in the last sentence of this Section 6.3, it is
expressly agreed by Tenant and Landlord that: (i) except in
connection with any new leaseable area -constructed by Landlord
for a party other than Tenant, Tenant shall be responsible for
any modifications to the Development required by any local, state
and federal laws, ordinances, codes and regulations or matters of
record (including but not limited to the Americans With
Disabilities Act) as such are in effect on the Commencement Date
of this Lease, and (ii) that any improvements to the Development,
including without limitation, the Building or Common Areas
required by any modification of or addition to any existing
local, state or federal law, ordinance,- code or regulation or
matters or record where such modification or addition occurred,
was enacted, or was put into effect before or after the
Commencement Date of this Lease (including but not limited to new
or modified provisions of the Americans With Disabilities Act)
shall De performed by Tenant at its sole cost and expense.
Landlord shall be responsible to perform any modifications to the
structural portions of the Development required by any local,
state and federal laws, ordinances, codes and regulations or
matters of record at its sole cost and expense, except for
modifications resulting directly or indirectly as a result of
any. Alterations performed by or at the request of Tenant.
SECTION 7 RENT
7.1 MINIMUM ANNUAL RENT
7.1.1 Commencing with the Rent Commencement Date and
throughout the initial term and each and every renewal term,
Tenant shall pay to Landlord a minimum annual rent as
follows:
Period Rate PSF Minimum Minimum
Annual Rent Monthly
3/1/02- $ 9.00 $465,147.00 $38,762.25
2/28/07
3/1/07- $ 9.90 $511,661.70 $42,638.48
2/28/12
3/1/12- $ 10.89 $562,827.87 $46,902.32
2/28/17
3/1/17- $ 11.98 $619,110.66 $51,592.55
2/28/22
3/1/22- $ 13.18 $681,021.72 $56,751.81
2/28/27
3/1/27- $ 14.49 $749,123.89 $62,426.99
2/28/32
Minimum annual rent shall not change if it is determined
that the Floor Area is greater or less than 51 ,683 square feet.
The minimum annual rent payable under this Section 7.1 shall
be payable to Landlord with no setoff or deduction therefrom,
except as specifically set forth herein, and in addition to all
other amounts due under this Lease, in equal, monthly
installments in advance, on or before the 1st day of each month,
at the address for Landlord set forth in Section 27.6 hereof or
at such other address as Landlord shall from time to time
designate by notice to Tenant.
7.2 PERCENTAGE RENT: Tenant shall pay with no setoff or
deduction therefrom, and in addition to all other amounts due
under thic5 Lease, as additional rent for the Premises, a
percentage rent equal to two percent (2%) of the amount by which
Tenant's Gross Sales in each Lease Year exceed the Gross Sales
Break Point). The percentage rent shall be payable on an annual
basis as set forth in Section 7.6, at the office of Landlord or
at such other place as
Landlord may designate, and without any prior demand therefor and
without any setoff or deduction whatsoever.
7.3 DEFINITION' OF LEASE YEAR: The term "Lease Year" as
used in this Lease shall refer to a 52 week year ending on
January 31 of each calendar year. The period from the
Commencement Date (if other than February 1) to the following
January 31, and, if this Lease shall expire or be terminated on a
date which is other than the last day of Tenant's then fiscal
year, the period beginning at the end of the last preceding Lease
Year and ending on the date of such expiration or termination,
shall be considered a partial Lease Year. Upon any change in
Tenant's fiscal year, at the option of Tenant, exercisable by
notice given to Landlord at any time (but no more often then once
in a twelve (12) month period), the term "Lease Year" shall mean
the new fiscal year of Tenant, then observed by Tenant in the
conduct of its business and used by Tenant for federal income tax
purposes. In the event the Lease Year is so changed, the period
from the last preceding Lease Year to the commencement of the new
fiscal year of Tenant shall be considered a separate partial
Lease Year. Notice of any change in the Lease Year shall be given
by Tenant to Landlord not less than 30 days prior to the
effective date of such change. For any partial Lease Year, the
Gross Sales Break Points referred to in Section 7.2 hereof shall
be reduced to that portion of the Gross Sales Break Points which
the number of days in such partial Lease Year bears to 365 and
the "Gross Sales" attributable to such partial Lease Year and
used in calculating percentage rent due under Section 7.2 shall
be equal to the product of the actual Gross Sales for the 12
month period ending on the last day of such partial Lease Year
multiplied by a fraction, the numerator of which is the number of
days in such partial Lease Year and the denominator of which is
365; PROVIDED, HOWEVER, that if the first or last Lease Year
shall be less than twelve (1.2) full calendar months, then (a)
for the purpose of computing percentage rent for the first Lease
Year (i) the Gross Sales made in the first Lease Year shall be
added to the Gross Sales for such number of days (including
Sundays and holidays) following the first Lease Year as shall
make up 365 days in total, (ii) the aggregate Gross Sales for
such 365 day period shall be divided by 365 to determine the
average daily Gross Sales and (iii) such average daily Gross
Sales shall be multiplied by the actual number of days in the
first Lease Year to determine adjusted Gross Sales for the first
Lease Year and (b) for the purpose of computing percentage rent
for the last Lease Year (i) the Gross Sales made in the last
Lease Year shall be added to the Gross Sales for such number of
days (including Sundays and holidays) preceding the last Lease
Year as shall make up 365 days in total, (ii) the aggregate Gross
Sales for such 365 day period shall be divided by 365 to
determine the average daily Gross Sales and (iii) such average
daily Gross Sales shall be multiplied by the actual number of
days in the last Lease Year to determine adjusted Gross Sales for
the last Lease Year. Notwithstanding the foregoing, the Gross
Sales for the aforesaid number of days following the first Lease
Year is to be included in detern1ining Gross Sales for the full
Lease Year following the first Lease Year.
7.4 DEFINITION OF GROSS SALES: The term "Gross Sales" as
used in this Lease means the actual sale price of all goods,
wares and merchandise sold in, upon or from any part of the
Premises, including actual receipts from services rendered by
Tenant as well as the total actual sales and services rendered by
any licensee, subtenant or concessionaire occupying any portion
of the Premises, all of which Tenant covenants shall be recorded
on the books of Tenant provided, however, that the term "Gross
Sales" shall not be deemed to mean and there shall be deducted or
excluded, as the case may be, from "Gross Sales" amounts
representing:
7.4.1 Sales of merchandise for which cash has been
refunded on merchandise which is defective.
7.4.2 Amounts of any sales, use, excise, gross
receipts or any similar tax imposed by any governmental authority
directly on sales and collected from Tenant of its customers.
7.4.3 Exchanges of merchandise between stores of
Tenant, if any, where such exchanges are made solely for the
convenient operation of the business of Tenant.
7.4.4 Orders sold at other stores of Tenant even if
said orders are filled from the Premises (orders sold at the
Premises shall be included within Gross Sales even if said orders
are filled from other than the Premises).
7.4.5 . Receipts from the sale of "leader items" not
exceeding $100,000 per year. "Leader items" shall be defined as
those items of merchandise advertised as promotional items to.
attract customers to the Premises and sold at either no profit or
a profit margin less than six percent (6%).
7.4.6 Sales of fixtures; operating equipment or
other property used by Tenant in the operation of its business
and not acquired by it for the purpose of sale.
7.4.7 Employee sales at discount except to the
extent the same exceed two percent (2%) of Gross Sales (as
defined excluding employee sales at discount).
7.4.8 Receipts from the sale of hunting, fishing
and/or game licenses 7.4.9. Receipts from licenses, park permits
and camp stamps. 7.4.10 Receipts from migrant bird pets.
7.4.11 Receipts from sales of airline tickets, ski
lift tickets, tickets for sporting events and all Datatix,
Ticketmaster or other similar ticket sales.
7.4.12 Receipts from sales of tickets for events
conducted not for purposes of profit.
7.4.13 Amounts of any Interest, Finance, Service or
Sales Carrying Charges, .however denominated, paid by customers
for extension of credit on sales and Dot included in the
merchandise cash sales price.
7.4.14 Credit Card fees
7.4.15 Income from vending machines maintained for
the convenience of employees and income from coin-operated
telephones used primarily by employees.
7.4.16 Charges for services rendered primarily to
accommodate customers or employees and on which Tenant makes no
profit; charges for making deliveries, shipments or transfers of
merchandise (provided such services are incidental to Tenant's
business and are performed in furtherance of good customer
relations).
7.4.17 Gift certificates, or like vouchers, until
such time as the same shall have been redeemed at the Premises
for merchandise or services.
7.4.18 Team sales.
7.4.l9. Fees from automatic teller cash dispensing
machine placements.
Sales shall be deemed to have been made when merchandise has
been shipped or delivered, and services shall be deemed to have
been rendered when completed, or when such sales or services, as
the case may be, have been charged against the purchaser or
customer on the books of Tenant, whichever of such events shall
be the first to occur. Transactions shall be included in Gross
Sales whether for cash or on credit and whether the amount
thereof is collected or uncollected. Tenant makes no
representation or warranty as to the amount of Gross Sales which
it expects to make in the Premises.
7.5 BOOKS AND RECORDS/AUDIT: Tenant covenants that, for the
purpose of ascertaining the amount payable to Landlord as
percentage rent, Tenant will keep in accordance with generally
accepted accounting principles consistently applied, accurate
books and records containing all gross sales during each month of
the term hereof and all supporting records such as excise tax
reports, state sales tax"(business and occupation tax and gross
income tax reports and receipts, including ST-1 gross receipts
tax reporting forms filed by Tenant during the most recent Lease
Year, at its headquarters office currently located at Denver,
Colorado, which shall, for the purpose of verifying the
percentage rent, be subject to examination by Landlord, its
authorized representatives or accountants at reasonable times
during business hours upon at least fourteen (14) days written
notice, and in a manner which does not unreasonably interfere
with the conduct of business. Such records shall be retained for
at least three (3) years after receipt by Landlord of the yearly
statement (hereinafter referred to) certified by the chief
financial officer or President or Treasurer of Tenant. Tenant
shall retain for at least one (1) year after the expiration of
each Lease Year all original sales records and sales slips. At
the expiration of such three (3) year period Tenant may dispose of
such records unless Landlord shall have asserted a claim against
Tenant with respect to percentage rent for such year, in which
event such records shall be retained until disposition of such
claim: Any claim by Landlord for a revision of any statement of
Gross Sales which is not made to Tenant within three (3) years
after receipt of the yearly statement shall be deemed and hereby
is waived by Landlord. If any such examination discloses that Gross
Sales transacted by Tenant exceed those reported, Tenant shall
immediately pay to Landlord such additional percentage rent as
may be so shown to be payable by said examination, and interest
on such deficiency at the Default Rate, from the date of
underpayment to the date such deficiency is paid. If such
examination discloses that Gross Sales transacted by Tenant are
less than those reported, Tenant shall be entitled to a credit
against rent next owing. All examinations of Tenant's books and
records shall be solely at Landlord's expense; provided, however,
that if Tenant's statement of Gross Sales shall be understated by
three percent (3%) or more, Tenant shall promptly reimburse
Landlord for Landlord's reasonable expenses of examination.
Landlord agrees to hold in confidence all sales figures and other
information obtained from Tenant's records and yearly statement
except to the extent that it may be necessary to divulge them to
prospective purchasers, for the purpose of obtaining financing,
in compliance with subpoenas or judicial orders, or to enforce
Landlord's rights hereunder.
7.6 STATEMENT: Within ninety (90) days after the end of
each Lease Year, Tenant shall furnish Landlord a statement,
certified to by the chief financial officer or President or
Treasurer of Tenant; showing the Gross Sales during such Lease
Year, together with a copy of state sales tax receipts. If any
percentage rent shall be due to Landlord with respect to such-
Lease Year, Tenant shall pay to Landlord such amount as may be
due to Landlord at the time such yearly statement is furnished to
Landlord.
7.7 LATE CHARGE: Other remedies for nonpayment of Rent
notwithstanding if the monthly minimum rental payment additional
rent payment or percentage rent payment for any particular month,
is not received by Landlord on or before the tenth (10th) day of
the month for which said payment is due, then a late payment
charge of two percent (2%) of such past due amount shall, as
liquidated damages and compensation for Landlord's additional
administrative expenses incurred, become due and payable as
additional rent in addition to such amounts owed under this
Lease. Landlord and Tenant expressly covenant and agree that in
the event of such late payment(s) by Tenant the damages so
resulting to Landlord will be difficult to ascertain precisely,
and that the foregoing charge constitutes a reasonable good faith
estimate by the parties of the extent of such damages.
7.8 PERSONAL PROPERTY AND LEASEHOLD TAXES: Tenant shall
pay, as they become due and payable and before they become
delinquent, all taxes levied or assessed against its leasehold
interest in this Lease and against the fixtures, equipment,
merchandise and other personal property located in upon, about or
affixed to the Premises.
7.9 LICENSE FEES: Tenant shall pay, as they become due and
payable and before they become delinquent, all fees, charges and
expenses required for licenses and/or permits, if any, required
for Tenant's use of the Development during the term of this Lease
or any renewal or extension thereof. Tenant shall bear all risks
and obligations associated with the procurement of any permits or
licenses necessary to conduct business. If requested by Tenant,
Landlord will cooperate with Tenant at Tenant's sole cost and
expense, in zoning matters relating to the Development.
SECTION 8 DEVELOPMENT
8.1 MAINTENANCE OF DEVELOPMENT: Except for Landlord's
responsibilities and obligations set forth in Section 1 5.1
hereof, during the term hereof, Tenant agrees, at no cost or
expense to Landlord to police and maintain the Development in
good operating condition, order and repair at all times, and to
make all replacements and repairs to the Development as and when
necessary, including, but without limitation, repairing and
replacing any surface paving whenever necessary, repairing
replacing and maintaining landscaping in the Development keeping
the same properly drained and reasonably free of snow, ice, water
and rubbish and in a neat clean orderly and sanitary condition,
providing security as necessary to protect the property and
persons of those properly using the Development, maintaining
suitable and adequate lighting in exterior portions of the
Development (and keeping same lighted during, and for at least
one- half hour after, Tenant's business hours), maintaining such
directional signs, markers and painted lines as may from time to
time be necessary or proper for the control of parking and
traffic in the Development, maintaining adequate access ways
connecting all parking areas with the public streets abutting the
Development, and satisfying the repair maintenance, and replacement
obligations of Landlord on the Development that are set forth in
the Permitted Exceptions. Notwithstanding the foregoing, in the
event of a Recapture, as defined below, from and after the
effective date of such event, Landlord shall be responsible for
maintaining the Common Areas, roof and exterior portions of the
Building, pursuant to this Section 8.1, and Tenant shall be
responsible to pay Landlord its pro rata share of all costs and
expenses incurred by Landlord in connection therewith, including
without limitation a management fee equal to ten percent (10%)
multiplied by said costs and expenses (excluding taxes). Tenant's
pro rata share shall be determined by dividing the leaseable
Floor Area of the Premises after Recapture, by the leaseable
Floor Area of the Development. Landlord may estimate (which
estimate may be revised from time to time. upon thirty (30) days
written notice to Tenant, but not more than one time per calendar
year in addition to a revision following Landlord initial annual
estimate) the annual cost of maintenance pursuant to Section 8.1
and Tenant shall pay to Landlord monthly on or before the first
day of each month, with and as part of the minimum monthly rent,
its pro rata share of such annual cost divided by 12. Each Lease
Year Landlord will endeavor within 90 days of the end of such
Lease Year to provide Tenant with a statement of the cost of
maintenance of the development pursuant to this Section 8.1 with
backup materials reasonably requested by Tenant. Within 30 days
of receipt of such annual statement and reasonable backup
materials, Tenant will pay to Landlord or Landlord will reimburse
to Tenant, as appropriate, any overage or underage versus the
estimated payments made by Landlord.
If Tenant shall dispute the amount of an annual statement of
maintenance costs submitted by Landlord or the proposed estimated
increase or decrease on the basis of which Tenant's rent is to be
adjusted as provided in subparagraph above; Tenant shall give
Landlord written notice of such dispute within (i) three (3)
years after Landlord delivers such annual statement, or (ii)
ninety (90) days after Landlord advises Tenant of such proposed
increase or decrease. If Tenant does not give Landlord such
notice within such time, Tenant shall have waived its right to
dispute the amounts so determined. If Tenant timely objects,
Tenant or its authorized representatives or accountants shall
have the right to inspect or audit Landlords books and records
concerning maintenance costs for the purpose of verifying the
accuracy of the statement complained of or the reasonableness of
the estimated increase or decrease. If Tenant determines that an
error has been made, Landlord and Tenant shall endeavor to agree
upon the matter, failing which the parties shall submit such
matter to an independent certified public accountant selected by
Landlord and reasonably acceptable to Tenant for a determination
which shall be final conclusive and binding upon Landlord and
Tenant. All costs incurred by Tenant in obtaining its own
representatives or accountants shall be paid for by Tenant unless
Tenant's inspection or audit disclose an error, acknowledged by
Landlord (or found to have occurred in by the independent
certified public accountant described above) of more than three
percent (3%) in the computation of the total amount of operating
expenses as set forth in the statement submitted by Landlord
which is challenged, in which event Landlord shall pay the
reasonable costs incurred by Tenant in obtaining such inspection
or audit. Notwithstanding the dependency of any dispute over any
particular statement, Tenant shall continue to pay Landlord the
amount of the adjusted monthly installments of rent detem1ined by
Landlord until the adjustment has been determined to be incorrect
as aforesaid. If it shall be determined that any portion of the
operating expenses were not properly chargeable to Tenant, then
Landlord shall promptly credit or refund the appropriate sum to
Tenant.
8.2 RESTRICTIONS ON LANDLORD: Except as (i) required
herein, (ii) reasonably necessary for Landlord to fulfill its
right and obligations set forth herein or (iii) required by laws,
roles and regulations of governmental agencies or authorities now
in effect or which may hereafter be in effect, Landlord shall
not, without the prior written consent of Tenant, which consent
may be withheld in Tenant's sole discretion, make any material
change to or alteration of the Development.
SECTION 9 OPERATION OF DEVELOPMENT
9.1 QUALITY OF OPERATION: Throughout the term of this
Lease, the Tenant shall maintain the Development in accordance
with commercially reasonable standards, attractive both in its
physical characteristics and appearance and in its appeal to
customers and trade. Tenants obligations pursuant to this Section
9.1 are subject to Landlord's obligations pursuant to Section
15.1 and, in the event of a Recapture, Section 8.1.
9.2 PROHIBITED ACTS: Tenant shall not without the prior
written consent of Landlord, at any time; (i) conduct or permit
any bankruptcy sale unless directed by order of a court of
bankruptcy or other court of competent jurisdiction; (ii) use, or
permit to be used, any sound broadcasting system or amplifying
device which can be heard outside of the Premises, except systems
or device's located within the Premises which are intended for
hearing within the; Premises and are not audible more than 25
feet outside of the Premises or (iii) use or permit the
Development to be used in violation of the Permitted Exceptions
or applicable law. Tenant shall not permit any objectionable or
unpleasant odors to emanate from the Premises or place or permit
any radio, television, loudspeaker or amplifier on the roof or
outside the Premises or where the same can be seen or heard from
outside the Premises. No dogs, cats, fowl, or other animals shall
be brought into or kept in or about the Premises or Development
by Tenant. Tenant shall not place, install or operate on the
Building or in any part of the; Development any engine or
machinery, or conduct mechanical operations thereon or therein,
or place or use in or about the Building or Development any
explosives, gasoline, oil, acids causties or any flammable,
explosive or hazardous material, other than the Excluded
Materials, as herein defined.
9.3 SIGNAGE: No sign, symbol or advertisement shall be placed
or maintained on or adjacent to the exterior walls of, or above,
any building or structure in the Development, except signs
complying will all applicable laws, rules, regulations and
ordnances of all governmental agencies and authorities and
complying with the Permitted Exceptions. Tenant shall, at its
own expense, keep all sign in good condition and in proper
operating order at all times. All signage for Tenant's business
shall be installed, maintained, operated, changed and removed at
Tenant's sole expense, and Tenant shall hold Landlord harmless
from all claims for damage, loss or injury, either to person or
persons or property or for the loss of property sustained by
Tenant, or by any other person, persons or entities as a result
of the installation maintenance operation changing or removal of
any of Tenant's signage. Tenant shall have the right to use any
pylon or monument sigh for the use of the Development. Should
Tenant install a pylon or monument sighm Tenant shall not be
required to remove such sigh structure but shall only be required
to remove Tenant's sigh faces a the termination of the Lease. In
the event of a Recapture (i) the location of Tenant's signage my
be reasonably adjusted by Landlord and Tenant in the event of a
Recapture, (ii) Landlord shall be entitled to place its new
tenant on a pro rata portion of any pylon or monument signage,
provided, that if Tenant has constructed a new pylon or monument
sign, Landlord reimburses Tenant for its pro rata share thereof.
SECTION 10 TAXES
10.1 REAL ESTATE TAXES: In addition to and not in lieu
of any other rent due hereunder, Tenant shall pay, commencing
with the Commencement Date and throughout the term of this Lease,
as additional rent, one hundred percent (100%) of the real estate
taxes (as hereinafter defined) which are assessed and levied
against the Development. For the purposes of this Lease, real
estate taxes shall be deemed to correspond to the calendar year
in which such real estate taxes are levied. Real estate taxes
for the calendar years in which the term of this Lease commences
and ends shall be prorated based upon the ration that the number
of days of the term of this Lease falling within such calendar
year bears to 365. Upon the expiration or earlier termination of
this Lese, Tenant shall ay Landlord it pro rata share of the
taxes for the current year, which are due and payable at a
subsequent date. In the event of a Recapture, from and after the
effective date of such event, Tenant shall only be responsible
for payment of Tenant's pro rata share of the real estate taxes.
Tenant's prorate share shall be determined by dividing the
leaseable Floor Area of the Premises retained by Tenant by the
leaseable Floor Area of the Development. Should the leaseable
Floor Area constructed on the Development change, Tenant's
prorate share shall be appropriately adjusted.
10.2 TENANT'S PAYMENT OF TAXES: Landlord shall deliver a
tax xxxx to Tenant no later than thirty (30) days prior to the
date due hereunder or direct the county to send said xxxx
directly to Tenant. Tenant shall pay the real estate taxes
directly to the taxing authorities and provide evidence of the
same reasonably acceptable to Landlord no later than ten(10) days
prior to the date that said Taxes are due and payable, but in no
event shall Tenant be required to pay the taxes sooner than 20
days from receipt of the tax xxxx from Landlord. If such real
estate taxes may be pain on an installment basis, Tenant shall
not be required to pay more than the installment then due.
Tenant shall pay all interest, penalties and other costs arising
on real estate taxes caused by Tenant's failure to timely pay the
real estate taxes as provided herein. The term "real estate
taxes" as used in this Section shall not include any capital
stock, franchise, estate inheritance, devolution. succession,
transfer, or gift tax. The term real estate taxes shall include
any taxes, assessments, surcharges, or service or other fees of a
nature not presently in effect which shall hereafter be levied on
the Development as a result of the use, ownership or operation of
the Development or for any other reason whether in lieu of or in
addition to, any current real estate taxes and assessments; provided,
however, any taxes which shall be levied on the rentals of the Development
shall be determined as if the 'Development were Landlord's only
property and. provided further, that in no event shall the term
"real estate taxes", as used herein, include any net federal or
state income taxes levied or assessed on Landlord unless such
taxes are a specific substitute for real property taxes. Such
term shall, however, include gross taxes on rentals. The term
"real estate taxes" shall, also include: (i) special assessments
(a "New. Assessment"), (ii) interest on a New Assessment, (iii)
all other charges certified into the annual real estate taxes or
real estate tax statement, (iv) all other taxes duties and
charges in the same category imposed by any governmental or
public authority which shall be assessed against the Land or any
part thereof and any buildings or other improvements thereon and
any appurtenances thereto or fixtures therein and any tax charge
or duty which may be imposed, levied or be or become a charge in
lieu of any such present tax, charge or duty including any
license tax, business license fee, business license tax,
commercial rental tax, levy, charge penalty or tax imposed by any
authority having the direct power to tax, including any city,
county, state or federal government or any school agriculture,
lighting, water drainage or other improvement or special district
thereof, and (v) any other charges which Landlord is obligated to
pay under Section 10.3 below. If a New Assessment is payable in
installments Tenant shall be responsible for such New Assessment
only to the extent such installments are payable and accrue
during the term of this Lease commencing with the Commencement
Date unless said New Assessment relates in any manner to
improvements installed by or at the request or approval of Tenant
in which event Tenant shall be responsible for paying the entire
New Assessment before the expiration or termination of the Lease.
10.3 LANDLORD'S PAYMENT OF TAXES: Provided that Tenant
is not in default in the payment of real estate taxes due and
payable under this Lease then throughout the term of this Lease,
Landlord shall pay, or cause to be paid all real estate taxes for
which Tenant is not responsible in the event of a Recapture. All
such taxes shall be paid before they become delinquent and
Landlord agrees to provide to Tenant receipted bills or other
evidence of payment of such faxes from time to time as such taxes
are paid.
10.4 CONTESTING OF TAXES: Provided timely notice is
given by Tenant to Landlord and-further provided that Tenant is
not in default of this Lease, Tenant may contest in good faith by
appropriate proceedings, or in any other manner permitted by law,
at Tenant's sole expense in Landlord's name, any taxes assessed
or levied against the Land and Landlord agrees to cooperate with
Tenant and to execute any documents reasonably required for such
purpose. The cost of such contest shall be prorated among Tenant
and any other tenant in the Development, to the extent of and
based upon each party's relative benefit from said contest. Such
contest may include appeals from any judgments, decrees or orders
until a final determination shall be made by a court or
government department or authority having final jurisdiction in
the matter. In the event of such contest of taxes, Tenant shall,
nonetheless, before. such taxes become delinquent, pay to
Landlord or the taxing authority , with no offset or deduction
therefrom, the amount of real estate taxes due in a timely manner
as set forth in Section 10.2. Provided Tenant is not fu default
of this Lease, any tax refund shall be paid to Tenant (i) to
reimburse Tenant for its reasonable costs of collection, and (ii)
pro rata to Landlord and Tenant to the extent applicable to real,
estate taxes paid by the owner and Tenant, respectively. All
submissions, offers, and correspondence to any taxing entity by
or on behalf of Tenant and relating to the Development shall be
subject to Landlord's prior review and written approval, which
shall not be unreasonably withheld. All correspondence, offers
acceptances and related written communications from any taxing
authority to Tenant or its agent shall be promptly delivered to
Landlord.
10.5 TAX ESCROW: Upon the occurrence of any default by
Tenant hereunder or if Landlord is required under any mortgage
covering part or all of the Development to escrow real estate
taxes, Landlord may require Tenant to deposit into said escrow,
on such periodic basis as may be required by Landlord or its
Mortgagee or lender, the amount required by Landlord or said
Mortgagee or lender to be deposited with respect to all estate
taxes against the Development provided that Tenant shall not
escrow real estate taxes for greater than fourteen ( 14) months
at any time Tenant's obligations under this Section 10 shall
survive the expiration or sooner termination of this Lease.
SECTION 11 RIGHT OF ENTRY
11.1 DEVELOPMENT: Landlord reserves the right to enter
the Development during normal business hours upon at least 48
hours prior written notice to Tenant to inspect the same.
Landlord further reserves the right, upon at least 48 hours prior
written notice, to Tenant (except in the case of emergencies, in
which event Landlord shall only be obligated to give such notice
as is practical under the circumstances), to enter the
Development for the purpose of maintaining, repairing or
replacing those portions of the Development and/or Building for
which Landlord is responsible hereunder and for the purpose of
performing any obligations of Tenant hereunder which Tenant has
failed to perform after appropriate notice and right to cure
provided Landlord shall use commercially reasonable efforts to
minimize any disruption to Tenants business on the Development.
If any maintenance, repairs or replacements performed by Landlord
to the foundation or structural components of the improvements
comprising the Building shall be so extensive that in Tenant's
reasonable discretion, it is not commercially practicable for
Tenant to conduct business upon all or any portion of the
Premises, there shall be a just abatement of rent for the period
during which Tenants business is so interrupted which abatement
shall begin following two (2) business days written notice to
Landlord of Tenant's determination of such commercial
impracticableness and Landlord's failure to minimize said
disruption so that it is commercially practicable for Tenant to
conduct its business.
SECTION 12 UTILITIES
12.1 UTILITIES: Throughout the term of this Lease
Tenant agrees to pay for all water natural gas electricity and
other utility services furnished to or consumed by Tenant in the
Premises or due with respect to the Property prior to the
Commencement Date. Tenant's obligations under this Section 12
shall survive the expiration or sooner termination of this Lease.
Unless caused by the gross negligence or intentional misconduct
of Landlord or Landlord's agents or employees, Landlord shall not
be liable to Tenant or any other person or entity for any loss,
damage or expense which may be sustained if the quality or
character of electric service other utility service furnished to
the Premises is changed, or such service is no longer available
or suitable for Tenant's requirements or if the service ceases or
is interrupted or impaired by fire other casualty or Act of God
the making of necessary repairs or Improvements or by any causes
beyond Landlord's control.
Notwithstanding anything to the contrary set forth in this
Section 12, Landlord hereby agrees that if there is an
interruption or discontinuance of gas, water, sewer or electric
utilities to the Premises that renders the Premises untenantable
and such interruption or discontinuance is Within Landlord's
reasonable control (other than an interruption resulting from a
casualty as described in, Section 14 hereof) and continues for a
period of two (2) or more consecutive business days after
Landlord receives notice thereof from Tenant (hereinafter
referred to as an "Unauthorized Interruption"), Tenant's minimum
annual rent shall xxxxx commencing at the end of said 2-day
period and continuing until such time as the Premises is rendered
tenantable if Landlord has failed to correct or remediate the
cause of such Unauthorized Interruption (or has failed to
commence to cure such cause or remediate such interruption if it
cannot be fully cured or reasonably remediated within such 2-day
period). In any case if the Unauthorized Interruption is the
result of any misconduct or negligent acts on the part of Tenant
its agents or employees, or due to Tenant's failure to comply
with the provisions hereof. Tenant's rent shall not xxxxx except
to the extent of Landlord's recovery with regard to the Premises
under its rental insurance if Tenant continues to nonetheless use
any part of the Premises for conducting its business, the rent
shall xxxxx only in proportion to the part rendered untenantable
and not so used.
SECTION 13 INSURANCE
13.1 FIRE AND CASUALTY INSURANCE: Landlord at all times
during the term of this Lease, shall cause all buildings and
other improvements excluding Tenant's trade fixtures; personal
and other property, located within the Development to be insured
against loss or damage by fire, lightning earthquake, wind and
such other risks as are from time to time included in extended
coverage endorsements in the State of Kansas, in an amount and
form so that the proceeds thereof are sufficient to provide for
actual replacement in full of the buildings and improvements
within the Premises not including Tenant's trade fixtures or
personal property, (said amount may exclude foundation and
excavation costs and costs of underground flues pipes and
drains); such coverage to include "Comprehensive Boiler and
Machinery" coverage, if applicable, as part of one or more policies
of insurance. In addition, Landlord way, during the entire term of
this Lease and any renewals or extensions thereof, purchase loss
of rent coverage in an amount not more them the total of the
minimum annual rent and other Rent hereunder calculated for a one
(1) year period. In addition to and not in lieu of any other Rent
due hereunder, Tenant shall pay to Landlord as additional rent
within thirty (30) days after Tenant's receipt from Landlord of a
xxxx for same, the cost of the insurance premiums for the above-
described insurance coverages. Notwithstanding the above, if,
acceptable to Landlord's lender, as determined in its sole
discretion and if Tenant can obtain casualty insurance coverage
("Replacement Insurance"), (i) which is no less comprehensive
than that obtained by Landlord, including, without limitation
rental loss coverage, if previously carried by Landlord, (ii)
notwithstanding anything herein the contrary, which names
Landlord as the named insured, (iii) which provides Landlord with
no less protection than the insurance previously maintained by
Landlord (reasonably determined by Landlord), and (iv) at a lower
cost, as evidenced in writing by Tenant's insurer, then Tenant
shall have the right to obtain said Replacement Insurance for the
Premises, by giving Landlord written notice at least ninety (90)
days before the renewal date of the current insurance policy in
effect, whereupon Tenant shall pay all costs incurred in
obtaining such Replacement Insurance for the Premises. Tenant may
elect to carry a higher deductible than Landlord was carrying,
but not more than the maximum set forth in Section 13.1 without
Landlord's prior written approval. Upon any insured loss, Tenant
shall pay to Landlord an amount equal to the deductible amount
which sum shall be held and disbursed in the same manner as
insurance proceeds are held and disbursed hereunder. Tenant may,
at any time, elect to stop insuring the Premises by giving
Landlord at least ninety (90) days prior written notice,
whereupon Landlord shall obtain insurance coverage for the
Premises as called for herein and Tenant shall resume paying
Landlord for such insurance expenses for the Premises. In the
event of a Recapture from and after the effective date of such
event, Tenant shall only be responsible for payment of Tenant' s
pro rata share of the insurance costs. Tenant's pro rata share
shall be determined by dividing the leaseable Floor Area of the
Premises retained by Tenant by the leaseable Floor Area
constructed on the Development. Should the leaseable Floor Area
constructed on the Development change, Tenant's pro rata share
shall be appropriately adjusted.
13.2 LIABILITY INSURANCE: Commencing with the date
of this Lease Tenant, at Tenant's sole cost shall maintain or
cause to be maintained general public liability insurance against
claims for contractual liability as well as personal injury or
death and property damage occurring within the Premises and upon,
in or about the Development. Each such insurance shall afford
protection to the limit of not less than $5,000,000.00 combined
single limit for personal injuries including bodily injury or
death (which limit may be included in an excess lines policy) and
property damage to any number of persons arising out of any one
occurrence. Landlord may require Tenant to increase the amount
and scope of insurance to be carried hereunder upon periodic
reviews of the same, provided Landlord shall not require changes
more than one (1) time in any consecutive three (3) year period
and said changes shall be commercially reasonable. Upon any
insured loss, Tenant shall pay to Landlord an amount equal to the
deductible amount, which sum shall be held and disbursed in the
same manner as insurance proceeds are held and disbursed
hereunder.
13.3 MISCELLANEOUS INSURANCE PROVISIONS: All insurance
provided for in this Section shall be effected under valid and
enforceable policies issued by insurers of recognized
responsibility with a minimum Xxxxxx X. Best Company, Inc. (or
any successor ratting organization) general policyholder's Rating
of B+X, which shall contain a deductible of no more than
$100,000.00 per occurrence for the term hereof or, if the
property policy required by Section 13.1 is carried by Landlord,
no more than $25,000.00 per occurrence for such policy (which
maximum deductibles may be adjusted for inflation) and shall be
primary and noncontributing. Any liability insurance required to
be maintained by Tenant may be taken out under a blanket
insurance policy or policies covering other premises, property or
insureds in addition to the Development and the parties hereto,
provided such policy or policies otherwise comply with this
Section. The original of the initial policies or renewal
policies, if any, as the case may be, shall be delivered to the
primary named insured, and certificates thereof or duplicate
policies at the other party's option, shall be delivered to the
other party upon request. Any insurance required to be maintained
by either party (the "insured party") shall name the other party
(the "other party") as additional insured as its respective
interest may appear. Any policy required by this Section shall
provide that such policy shall not be' cancelled or materially
changed without at least thirty (30) days prior written notice to
the other party to this Lease. If a party fails to maintain insurance
in accordance with the provisions of this Section and if such party fails
to correct such default after thirty (30) days notice from the other party
hereto, such other party may purchase such insurance for such
defaulting Party, provided the term of such Insurance does not
exceed one (1) year, and the defaulting party shall pay the cost
thereof and interest at the Default Rate thereon upon demand.
13.4 INSURANCE ESCROW: Upon the Occurrence of any
default by Tenant hereunder, or if Landlord is required under any
mortgage covering part or all of the Development to escrow for
insurance, Landlord may require Tenant to deposit into said
escrow, on such periodic oasis as may be required by Landlord or
its Mortgagee or lender, the amount required by Landlord or said
Mortgagee or lender to be deposited with respect to insurance,
which is paid for by Tenant hereunder, provided that Tenant shall
not escrow greater than fourteen (14) months of insurance escrow
payments at anyone time.
13.5 WAIVER OF SUBROGATION: Anything in this Lease to
the contrary notwithstanding, Landlord and Tenant each hereby
waives any and all rights of recovery, claim, action or cause of
action, against the other, its agents (including partners, 'both
general and limited), officers, directors, shareholders or
employees, for any loss or damage that may occur to the Premises,
or any improvements thereto, or the Development, or any
improvements thereto, or any property of such party therein by
reason of fire, the elements, or any other cause which could be
insured against under the terms of the fire and extended coverage
insurance policy to be carried pursuant to this Lease, regardless
of cause or origin, including negligence of the other party
hereto, its agents, officers or employees' and covenants that no
insurer shall hold any right of subrogation against such other
party. Each of the parties shall, upon obtaining the policies of
insurance required by this Lease, notify the insurance carrier
that the foregoing waiver is contained in this Lease and shall
require such carrier to include an appropriate waiver of
subrogation provision in the policies.
13.6 LANDLORD HELD HARMLESS: Tenant agrees to defend,
indemnify and save Landlord harmless from all injury, loss claims
or damage (including attorneys' fees and disbursements incurred
by Landlord in conducting an investigation and preparing for and
conducting a defense) by reason of injury to any person or
property occurring on or at the Development or arising from,
related to, or in any way connected with the use or occupancy of
the Development or the conduct or operation of Tenant's business.
Landlord and Landlord's agents and employees shall not be
liable to Tenant or any other person or entity whomsoever for any
injury to person or damage to property caused by the Development
becoming out of repair or by defect in or failure of equipment,
pipes or wiring, or broken glass, or by the backing up of drains,
or by gas, water, steam electricity or oil leaking escaping or
flowing into the Development, nor shall Landlord be liable to
Tenant or any other person or entity whomsoever for any loss or
damage that may be occasioned by or through the acts or omissions
of any persons or entities whomsoever, excepting only duly
authorized employees and agents of Landlord. With respect to
latent or patent defects in the Development, Landlord shall have
no liability, except as otherwise set forth in Section 2.2.
Tenant shall indemnify and hold Landlord harmless from any loss,
cost, expense or claims arising out of such injury or damage
referred to in this Section.
In the event of a Recapture Landlord agrees to defend,
indemnify and save Tenant harmless from all injury, loss, claims
or damage (including attorneys' fees and disbursements incurred
by Tenant in conducting an investigation and preparing for and
conducting a defense) by reason of injury to any person or
property occurring on the Development resulting from Landlord's
negligent performance of its obligations to maintain and repair
the Common Areas, roof or exterior portions of the Building.
SECTION 14 DAMAGE AND DESTRUCTION
14.1 DESTRUCTION: If the Premises shall be damaged by
fire, the elements or other casualty and the same is covered by
insurance required to be carried hereunder; such that the
Premises is not thereby rendered untenantable in whole or in
part, Landlord shall promptly at its expense cause such damage to
be repaired, without abatement of rent. If the Premises shall be
rendered wholly or partially untenantable and the same is covered
by insurance required to be carried hereunder, Landlord shall
promptly at its expense cause the damage to be repaired, and the
aggregate minimum annual rent and additional rent meanwhile shall
be abated proportionately as to the portion of the Premises rendered
untenantable Landlord shall notify Tenant within ninety (90) days
of any damage to the Premises of the estimated time for
completion of repair.
14.2 TENANT'S RIGHT TO TERMINATE: Notwithstanding
anything contained herein to the contrary if (i) less than two
(2) years remains in the term of the Lease as it may have been
extended, (ii) more than twenty-five percent (25%) of the Floor
Area of the Premises is damaged or destroyed by fire or other
casualty, and (iii) the time to restore the damage or destruction
(as reasonably estimated by Landlord) is greater than one hundred
eighty (180) days. then Tenant or Landlord. shall have the right
to terminate this Lease by giving the other written notice of
such termination within thirty (30) days after the date of such
casualty or Landlords notification to tenant of the estimated
time for completion of restoration. whichever is later.
specifying a termination date of at least thirty (30) and not
more than ninety (90) days after the date of such notice 0f
termination. whereupon this Lease and the tenancy hereby created
shall cease as of the date of said termination. the rent to be
adjusted and prorated as of such date (if . both Landlord and
Tenant give notice, the first notice shall be determinative with
regard to the effective date of termination).However, if
Landlord gives such a notice and if Tenant then has an
unexercised option to extend the Term pursuant to Section 3.1,
Tenant may defeat Landlords notice by exercising such option
within ten (10) days after delivery of Landlord's notice of
termination, in which case this Lease will remain in full force
and effect and Landlord will proceed to repair and restore the
Premises. If Tenant or Landlord does not give notice of
termination within such thirty (30) day period, each shall be
deemed to have waived such right of termination and, except as
otherwise provided herein, Landlord shall remain obligated to
repair and restore the Premises in accordance with the terms
hereof and shall commence construction of said repairs within one
hundred eighty (180) days of said casualty. If Landlord does not
substantially complete the repairs required to be made by
Landlord pursuant to this Section 14 within three hundred sixty
(360) days of the date of said casualty, then Tenant shall have
the right to terminate this Lease by giving Landlord thirty (30)
days written notice of termination following said three hundred
sixty (360) day period. However, in the event that Landlord
substantially completes said work during said thirty (30) day
period, then said right to terminate and termination notice shall
be void and of no force or effect.
14.3 NOTICE OF CASUALTY: Tenant shall give prompt
written notice to Landlord of any damage caused to the Premises
by fire or casualty as soon as Tenant is aware of such damage.
SECTION 15 REPAIRS. ALTERATIONS IMPROVEMENTS AND REPLACEMENTS
15.1 LANDLORD'S RESPONSIBILITIES: Throughout the term
of this Lease, Landlord, at Landlord's sole expense except as
herein provided, shall keep the foundation and all structural
components of the Premises in good condition and shall be
responsible for any and .all maintenance repairs and/or
replacements thereof. Notwithstanding anything in this Lease to
the contrary, any maintenance repairs and/or replacements of
damage or abnormal wear and tear to the foundation or structural
components of the Premises, caused by the improper act or
negligence of Tenant, its employees, agents, invitees,
contractors or customers, shall be performed by Landlord at
Tenant's expense, after a thirty (30) day notice and opportunity
to cure the same. All repairs and replacements made pursuant to
this Section shall be at least equal in quality and workmanship
to the original work.
15.2 TENANT'S RESPONSIBILITES: Except as set forth in
Section 15.1, hereof, subject to' the provisions of Section 14
and Section 22, hereof, and in addition to Tenant's
responsibilities set forth in Section 8.1, hereof, Tenant shall,
at its sole expense, keep the Development (including, without
limitation HVAC, roof (excluding the steel joist portions of the
roof, which are Landlord's responsibility pursuant to Section
15.1, and subject to Landlord's responsibilities in the event of
a Recapture), parking facilities, exterior walls, and
landscaping) in good condition and repair, as when they were
entered upon, and shall be responsible for any and all
maintenance, repairs and replacements thereto, loss by fire or
other casualty and at the end of the term, reasonable wear and
tear excepted. Notwithstanding anything in this Lease to the
contrary, any maintenance, repairs and/or replacements of damage
or abnormal wear and tear to the foundation or structural
components of the Premises, caused by the improper act or
negligence of Landlord, its employees, agents, invitees,
contractors or customers, shall be performed by Tenant at
Landlord's expense, after a thirty'(30) clay notice and opportunity
to cure the same.
15.3 PERMITS/SALVAGE/LAWS: Landlord shall cooperate
with Tenant in securing any building or other permits or
authority necessary from time to time for any repair, alteration,
change or improvement required or permitted to be performed by
Tenant in on, to or of the Premises. Subject to Tenant's
obligations under Section 21.1 hereof and the rights of any
insurance company providing the insurance required hereunder, all
salvage work done at any time by Tenant pursuant to the
provisions of this Section 15 shall belong to Tenant who shall
not be accountable therefor 10 Landlord" Any repair, alteration,
change or improvement shall be executed in a good and workmanlike
manner in accordance with all applicable laws, building codes,
ordinances, statutes, regulations and requirements of any
national, state or local government.
SECTION 16 TRADE FIXTURE
16.1 INSTALLATION AND REMOVAL: Subject to the terms and
conditions of this Lease, including, without limitation; Section
6, Tenant may at any time during the term of this Lease install
upon the Premises any and all trade fixtures and operating
equipment which it may deem necessary or advisable in connection
with the conduct of its business. Any and all of such fixtures
and equipment may a1 any time and from time to time during the
term of this Lease be removed by Tenant from the Premises,
without any obligation on the part of Tenant to replace said
fixtures and equipment. Tenant agrees to repair, at its expense,
any damage caused to the Premises by reason of such removal.
16.2 TENANT'S USE OF ROOF: Subject to the terms and
conditions of this Lease, including, without limitation, Section
6, Tenant may plan, design, construct, supervise and maintain
upon the roof any air conditioning and electrical equipment,
alarm bells and equipment, antennas, satellite dishes and similar
facilities which may protect or, service the Premises
(collectively "Roof Facilities"), provided that the, same do not
unreasonably interfere with the operation of the Development, do
not impair the structural integrity of the Building, are
reasonably screened from public view and comply with all
applicable governmental codes, ordinances, rules, regulations and
laws. Any such Roof Facility, and any temporary signage or
advertising items, which shall be installed or erected shall
unless and until Tenant shall remove the same be maintained by
Tenant at Tenant's own cost and expense and shall be removed by
Tenant and any damage to the Building repaired, at Tenant's
expense, upon the expiration or earlier termination of the term
of this Lease.
Tenant shall be responsible for all maintenance costs
incurred in collection with the Roof Facilities and related
equipment and flashing installed around the bases and all
reasonable measures taken to prevent leakage there from Tenant
hereby agrees to cooperate in any roof repair, replacement,
maintenance and insta11ation as required by Landlord from time to
time and shall at Tenant's sole cost and expense relocate or
temporarily remove and or all of the Roof Facilities in
connection with such repair or replacement of the roof. Upon the
termination hereof, the Tenant may remove, or Landlord may
require Tenant to remove, the Roof Facilities and any and all
damage to the roof caused by said removal shall be repaired by
Tenant.
16.3 ROOF PENETRATIONS: Subject to the terms and
conditions of this Lease, including, without limitation, Section
6, Tenant shall submit detailed plans to Landlord for, approval
prior to any penetrations or alterations being made in the roof
system. Conduits, pipes or wires must be concealed between the
ceiling and the bottom of the roof deck and shall not be allowed
to run across the roof surface. The roofing contractor, who shall
be subject to Landlord's prior review and approval, which shall
not be unreasonably withheld, shall properly install pitch pans
and roof curbs at all roof penetrations and provide in writing
either a l5 year complete water tight guarantee covering the work
performed or a guarantee that the existing roof warranty has not
been voided or compromised in any way as a result of Tenant's
work. Tenant hereby agrees to indemnify, defend and hold Landlord
hann1ess from any damage 'to the Building resulting, directly or
indirectly, from Tenant's venting, opening, sealing,
waterproofing or in any other way altering the roof unless such a
guarantee from Landlord's roofing contractor (if applicable) or
an authorized contractor has been delivered to Landlord promptly
following the time said Alterations on the roof were performed.
SECTION 17 SUBORDINATION/NONDISTURBANCE
17.1 SUBORDINATION/NONDISTURBANCE: Tenant agrees that
this Lease is and shall be subordinate or superior, at the option
of Landlord, to the lien of any mortgage or other security
instrument now or hereafter placed upon Landlord's interest in
the, Development; provided, that (a) no default by Landlord under
any such mortgage or other security instrument shall affect
Tenant's rights under this Lease, so long as Tenant is not in
default hereunder, and (b) any Mortgagee of a mortgage or holder
of any other security instrument encumbering Landlord's interest
in the Development shall execute a Subordination, Nondisturbance
and Attornment Agreement on a form which is approved by Tenant
and Tenant's counsel, which approval shall not be unreasonably
withheld. At or prior to the date of Landlord's Notice of
Commencement, Landlord shall cause to be delivered to Tenant a
separate Subordination, Nondisturbance and Attornment Agreement
for each mortgage, deed of trust ground lease or similar
encumbrance shown on the title insurance commitment delivered to
Tenant in accordance with Section 19.2 hereof and for any
unrecorded mortgage or deed of trust affecting the Development,'
duly executed by the holder of each such mortgage or deed of
trust or lessor of such ground lease. Subject to delivery to
Tenant of such nondisturbance agreement, Tenant hereby agrees to
provide to Landlord,' within ten (10) days of demand, a
Subordination or Attornment agreement for any mortgage or deed of
trust affecting the Development.
SECTION 18 SUBLETTING ASSIGNING 18.1 TENANT ASSIGNMENT:
18.1 TENANT ASSIGNMENT
18.1 Provided that Tenant is not in default under this
Lease, Tenant shall have the right, at any time, to assign this
Lease or sublet all or any part of the Premises to any entity;
provided that (i) Tenant continues to remain primarily liable on
its obligations set forth herein; (ii) any such subtenant and/or
assignee shall assume and be bound by all obligations of Tenant
for payment of all amounts of rental and other sums and the
performance of all covenants required by Tenant pursuant to this
Lease Agreement; (iii) any such subtenant and/or 'assignee
intends to operate the Development in accordance with the usage
restrictions of this Lease; and (iv) not less than ten (10) days
prior to the effective date of such transaction, Tenant provides
Landlord with copies of the documents evidencing such transaction
and such evidence as Landlord may reasonably require to establish
that such transaction falls within the terms and provisions of
this paragraph.
18.1.2 If Tenant or an entity that owns all of the
outstanding equity interests of Tenant is not publicly traded,
(i) a sale by Tenant of all or substantially all of its assets or
all or substantially all of its stock. (ii) a merger of Tenant
with another corporation, (iii) the transfer of twenty-five
percent (25%) or more of the stock in a corporate tenant, or (iv)
the transfer of twenty-five percent (25%) or more of the
beneficial ownership interests in a noncorporate tenant, shall
constitute an assignment hereunder.
18.1.3 Notwithstanding anything contained in this
Paragraph 18 to the contrary, thirty (30) days prior to any
assignment or subletting, or amendment or extension to any
existing assignment or subletting, Tenant shall notify Landlord
(the,"Tenant Notice"), provide Landlord with a copy of said
assignment or subletting, and Landlord, within ten (10) days
thereafter, shall have the right to reduce the Premises as to the
portion of the Premises to be assigned or sublet (a "Recapture")
by delivering Tenant with written notice thereof (a "Recapture
Notice"). In the event Landlord provides the Recapture Notice,
(i) such reduction shall be effective as of the date set forth in
a written notice from Landlord to Tenant, which date shall in no
event be more than thirty (30) days following the Tenant Notice,
(ii) Tenant's minimum annual rent shall be proportionately
reduced, and (iii), at Landlord's option, if set forth in the
Recapture notice, Tenant shall assign Landlord the assignment (or
sublet agreement if Landlord does not deliver the Recapture
Notice, the Premises shall not be reduced, Tenant shall remain
liable for the entire Premises and minimum annual rent, and
Tenant shall be free to enter into said assignment or recapture
within ten (10) days thereafter. Landlord's exercise or failure
to exercise a Recapture shall not eliminate Tenant's obligation
to renotice Landlord of any future sublettings or assignments, or
amendments thereto.
Notwithstanding anything to the contrary contained in this
Paragraph 18.1.3 herein, Tenant shall, have the right, without
being obligated to deliver a Tenant Notice and provide Landlord
the right to deliver a Recapture Notice, to assign or sublease all
or any portion of the Premises to the following parties on the following
conditions:
1. Any subsidiary or affiliate of Tenant, provided
Tenant owns a substantial interest in such affiliate or
subsidiary
2. Any parent corporation of Tenant;
3. Any subsidiary or affiliate of Tenant's parent
corporation if such parent owns a substantial interest in such
subsidiary or affiliate; or
4. Any corporation into which Tenant may be merged
or consolidated or which purchases all or substantially all of
the assets or stock of Tenant; provided that the resulting
corporation has a net worth at least equal to Tenant's net worth
as of the date hereof or as of tl1e date prior to said merger and
provided that:
(A) Tenant continues to remain primarily liable on
its obligations set forth herein, unless Tenant no longer exists,
due to its dissolution in connection with a merger
(B) Any such assignee shall assume and be bound by
all obligations of Tenant for payment of all amounts of rental
and other sums and the performance of all covenants required by
Tenant pursuant to this Lease. Any such subtenant shall agree not
to violate the obligations of Tenant or the covenants required by
Tenant pursuant to this Lease Agreement; and
(C) Any such subtenant and/or assignee intends to
operate the Premises in accordance with the usage restrictions of
this Lease.
Not less then ten (10) days prior to the effective date of such
transaction, Tenant provides Landlord with copies of the
documents evidencing such transaction and such evidence as
Landlord may reasonably require to establish that such
transaction falls within the terms and provisions of this
subparagraph.
18.2 LANDLORD ASSIGNMENT: Landlord shall have the right
to sell, transfer or assign, in whole or in part, its rights and
obligations under this Lease and in the Premises. Notwithstanding
anything in this Lease to the contrary, any such sale, transfer
or assignment shall operate to release Landlord from any and all
subsequent liabilities under this Lease and shall result
automatically in tl1e purchaser or assignee assuming and agreeing
to carry out all the covenants and obligations of Landlord
herein. Landlord may also assign this Lease to an entity created
by or on behalf of Landlord to purchase the Property.
SECTION 19 QUIET ENJOYMENT
19.1 QUIET ENJOYMENT: Landlord covenants that; provided
Tenant is not in default under this Lease, Tenant shall peaceably
and quietly have, hold and enjoy the Premises, during the full
term of this Lease, free and clear of all liens and encumbrances
except as reflected in the Title Report, as defined below, as
amended ("Permitted Exceptions").
19.2 TITLE INSURANCE: If requested by Tenant in writing
prior to Landlord's purchase of the Premises, Landlord shall
request that the title company deliver to Tenant at Tenant's sole
cost, a leasehold owner's title insurance policy, insuring
Tenant's leasehold interest under this Lease in an amount to be
agreed upon by Landlord and Tenant, which policy shall be free
and clear of all liens and encumbrance except the Permitted
Exceptions and written by a title insurance company licensed by
the State of Kansas.
SECTION 20 ENVIRONMENTAL MATTERS
20.1 ENVIRONMENTAL REPORT: Landlord represents and
covenants to Tenant that Landlord does not have actual knowledge
of the existence of any hazardous waste materials, toxic
substances, underground storage tanks and/or asbestos (except as
may be disclosed in an environmental report to be delivered and
certified to Tenant) at the Development
20.2 HAZARDOUS MATERJALS: Except for Excluded Materials
(hereinafter defined), Tenant shall not, without the prior
written consent of Landlord which may be withheld in Landlord's
sole discretion knowingly cause or permit any Hazardous
Material(s) (hereinafter defined) to be brought or remain upon,
stored, generated, kept, used, discharged, leaked, or emitted in
or about, or treated at the Building or the Development. As used
in this Lease, "Hazardous Material(s)" shall include, but not be
limited to, any hazardous, toxic or radioactive substance,
material, matter or waste which is or becomes regulated by any
federal, State or local law, ordinance, order, rule, regulation,
code or any other governmental restriction or requirement, and
shall include asbestos, petroleum products and the terms
"Hazardous Substance," "Hazardous Waste," "Toxic Substances," or
other similar designations as defined in the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA
") as amended, 42 U.S.C, 9601 et seq., the Resource Conservation
and Recovery .Act ("RCA"), as amended, 42 U:S.C. 690l et seq.,
the Toxic Substances Control Act, 15 U.S.C. Section 2601, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., and any other federal, state or local
governmental statutes, laws, ordinances, rules, regulations and
precautions "Excluded Materials" shall mean Hazardous Materials
(1) which may be present in: (i) paints, glues, fuels, photocopy
equipment, photographic chemicals and supplies, building
materials, maintenance supplies, cleaning agents and solvents,
and propane and gun powder, so long as Tenant is engaged in the
sale of primarily sporting goods and said items are kept in
quantities necessary for Tenant's retail operation, (ii) oil,
gasoline or other fluid deposits released from passenger cars or
maintenance vehicles parked at the Development, or (iii)
fertilizer, herbicides, insecticides, and pesticides applied by
Tenant within the Development. Should Landlord consent in writing
to Tenant bringing, using, storing or treating any Hazardous
Material(s) in or upon the Building or the Development or if
Tenant is allowed to bring, use, store or treat Hazardous
Materials in or upon the Building pursuant to this Section,
Tenant shall strictly obey and adhere to any and all federal)
state or local laws, ordinances, orders, rules regulations codes
or any other governmental restrictions or requirements (including
but not limited to those federal and state statutes referred to
in this Section) which in any way regulate) govern or impact
Tenant's possession, use, storage, generation treatment or
disposal of said Hazardous Material(s). In addition Tenant
represents and warrants to Landlord that (1) Tenant shall apply
for and remain in compliance with any and all federal, state or
local permits in regard to Hazardous Materials; (2) Tenant shall
reopen to any and all applicable governmental authorities any
release by it of reportable quantities of any Hazardous
Material(s) as required by any and all federal, state or local
laws, ordinances, orders, rules, regulations, codes or any other
governmental restrictions or requirements, with a copy thereof to
Landlord; (3) Tenant, within five (5) days of receipt, shall send
to Landlord a copy of any notice, order, inspection report, or
other document issued by any governmental authority relevant to
the Tenant's compliance status with environmental or health and
safety laws; and) (4) Tenant shall remove from the Development
all of Tenant's Hazardous Materials, as hereinafter defined, at
the earlier of (a) the termination of this Lease, or (b) when
required by any and all federal, State or local laws, ordinances,
orders, rules, regulations, codes or any other governmental
restrictions or requirements.
20.3 TENANT'S INDEMNITY: Tenant shall forever defend,
completely indemnify and hold harmless Landlord, its mortgagees,
affiliates and their respective directors, shareholders,
officers, managers and agents (the "Landlord Indemnitees") from
and against, and shall reimburse Landlord and the Landlord
Indemnitees for, any and all liabilities, losses, costs, damages,
demands) fines, expenses (including, without limitation.
attorneys' fees and costs), suits, judgments, injunctive relief,
claims, injuries to person, property or natural resources,
actions or causes of action arising in connection with the
release of any Hazardous Materials, whether foreseeable or
unforeseeable, known or unknown, material or immaterial,
resulting from Tenant's or its agent's, employee's, invitee's,
sublessee's or licensee's actions or inactions (collectively
"Tenant's Hazardous Materials"). The foregoing indemnity
includes, without limitation: (A) all costs of removal,
remediation of any kind and disposal of Hazardous Materials; (B)
all costs of determining whether the Development is in
compliance, and of causing the Development to be in compliance,
with all applicable federal, state or local laws, rules,
ordinances or regulations governing Hazardous Materials all costs
associated with claims for damages to persons, property or
natural resources arising from a release of Hazardous Materials
by Tenant, its agents, employees, sublessees or licensees or
invitees; and (D) Landlord's or the Landlord's indemnitees
attorneys and consultants fees and costs arising from or related
to a violation of this Section or release of Hazardous Materials
by Tenant, its agents, employees. sublessees or licensees or
invitees. The indemnities of Tenant hereunder shall survive the
termination of this Lease. The rights of Landlord hereunder shall
be in addition to any other rights and remedies of Landlord at law,
in equity or by statute or contained herein Tenant shall promptly
report to and notify Landlord of the existence release or threatened
release of Hazardous Materials upon or at the Development once known by
Tenant and shall provide Landlord access to the Development,
subject to the requirements of Section 11.1, at all reasonable
times for the purpose of inspecting and/or testing the
Development for Hazardous Substances and or the removal of
Hazardous Substances from the Development.
20.4 REMEDIATION WORK: In case the Development or any
part thereof shall be subject to remediation, abatement,
containment or any other work (the "Remediation Work") mandated
or advised by any federal, state, local or other governmental
agency with respect to the Tenant's Hazardous Materials, the
Remediation Work shall be the responsibility of Tenant, unless
such mandate or advisement results solely from Landlord's use,
generation storage or disposal of Hazardous Materials, in which
case Landlord shall be responsible for the Remediation Work. In
no event shall Landlord be required to repair or replace Tenant's
stock in trade, leasehold improvements, fixtures, furniture,
furnishing or floor coverings and equipment. The Remediation Work
and any restoration and rebuilding of the Development shall be
completed within one hundred eighty (180) days of the date the
original notice of mandate or advisement was delivered. If
Landlord is responsible for the Remediation Work, all Remediation
Work done in and to the Building shall be made in accordance with
plans and specifications approved by Tenant, which such approval
shall not be unreasonably withheld or delayed. If Tenant is
responsible for the Remediation Work, all Remediation Work done
in and to the Development shall be made in accordance with plans
and specifications approved by Landlord, which such approval
shall not be unreasonably withheld or delayed. All Remediation
Work and any restoration performed in or on the Development shall
be performed in conformance with all applicable laws, statutes
and regulations. Upon completion of the Remediation Work,
Landlord shall give possession to Tenant of the same space in the
Building without diminution or change of location. If either
Landlord or Tenant is given notice of the mandate or advisement
described herein or of the release of any Hazardous Materials in
connection with the Development or of noncompliance with any
federal, state or local laws relating to Hazardous Materials in
connection with the Development, the party receiving such notice
shall advise the other party in writing within ten (10) days of
receipt of the notice.
20.5 USE OF DEVELOPMENT: Tenant its agents, employees,
contractors and invitees shall use the Building and the
Development and conduct any operations thereon in compliance with
all applicable federal, state and local environmental statutes,
regulations, ordinances and any permits, approvals or judicial or
administrative orders issued thereunder to Landlord or Tenant
20.6 LANDLORD'S INDEMNITY: Landlord shall forever
defend, completely indemnify and hold harmless Tenant, its
mortgagees, affiliates and their respective directors,
shareholders, officers, managers and agents (the "Tenant
Indemnitees") from and against, and shall reimburse Tenant and
the Tenant Indemnitees for, any and all liabilities, losses,
costs, damages, demands, fines, expenses (including, without
limitation attorneys' fees and costs), suits, judgments,
injunctive relief, claims, injuries to person property or natural
resources, action or causes of action arising in connection with
the release of any hazardous Materials, whether foreseeable or
unforeseeable, known or unknown, material or immaterial,
resulting from Landlord's or its agent's or employee's actions or
inactions (collectively "Landlord's Hazardous Materials"). The
foregoing indemnity includes, without limitation: (A) all costs
of removal, remediation of any kind and disposal of Hazardous
Materials; (B) all costs of determining whether the Development
is in compliance, and of causing the Development to be in
compliance, with all applicable federal, state or local laws;
rules, ordinances or regulations governing Hazardous materials;
(C) all costs associated with claims for damages to persons,
property or natural resources arising from a release of Hazardous
Materials by Landlord, its agents, employees, sublessees or
licensees; and (D) Tenant's or the Tenant's Indemnitees'
attorneys and consultants fees and costs arising from or related
to a violation of Ws Section or release of Hazardous Materials by
Landlord, its agents, employees, sublessees or licensees. The
indemnities of Landlord hereunder shall survive the termination
of this Lease. The rights of Tenant hereunder shall be in
addition to any other rights and remedies of Tenant at law, in
equity or by statute or contained herein: Landlord shall promptly
report to and notify Tenant of the existence, release or
threatened release of Hazardous Materials upon or at the
Development once known by Landlord termination notice and if, in fact,
Tenant reopens within such period or assigns the Lease within such
period, Landlord shall not have the right to terminate this Lease with
respect to such instance of Tenant ceasing to so operate. Such right of
termination shall be Landlord's sole remedy upon any
discontinuance of Operations by Tenant other than continued
enforcement of Tenant's obligations under this Lease (other than
Operation) if this Lease is not terminated. Upon termination,
Landlord and Tenant shall each be released from any obligations
accruing after the date of such termination, but each shall
remain liable for any obligations accruing hereunder prior to
such date of termination.
SECTION 25 MEMORANDUM OF LEASE
25.1 MEMORANDUM OF LEASE: If requested by either party,
the other agrees to execute and deliver a memorandum of lease in
the form attached hereto as Exhibit B in order to give notice of
this Lease; provided, however, that the relations between
Landlord and Tenant with respect to thee Premises shall be
governed solely by the provisions of this Lease and not by any
such memorandum of lease. The cost of recording such memorandum
of lease shall be paid by the requesting party. Tenant shall not
record this Lease, but may record the memorandum of Lease.
SECTION 26 ESTOPPEL CERTIFICATE
26.1 ESTOPPEL CERTIFICATES: Upon request of Landlord or
Tenant, the other party, within ten (10) days of the date of such
written request, agrees to execute and deliver to the party
requesting, without, charge, a written statement: (a) ratifying
this Lease; (b) certifying that this tease is in full force and
effect, if such is the case, and has not been modified, assigned,
supplemented or amended, except as shall be stated; (c)
certifying that all conditions and, agreements under this Lease
to be satisfied and performed have been satisfied and performed,
except as shall be stated; (d) reciting the amount of advance
rental, if any, paid by Tenant and the date to which rental, has
been paid; and (e) confirming such other provisions as are
reasonably requested by such party.
SECTION 27 MISCELLANEOUS
27.1 RELATIONSHIP OF PARTIES: It is the intention of
the parties to create the relationship of Landlord and Tenant and
no other relationship whatsoever and nothing herein shall be
construed to constitute the parties hereto partners or joint
venturers, or to render either party hereto liable for any of the
debts or obligations of the other party.
27.2 ENTIRE AGREEMENT/MODIFICATION: There are no oral
agreements or understandings between the parties hereto affecting
this Lease and this Lease supersedes and cancels any and all
previous negotiations arrangements, agreements and understandings
between Landlord and Tenant and none thereof shall be used to
interpret or construe this Lease. This Lease cannot be changed or
terminated orally but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change,
modification or discharge is sought.
27.3 COVENANT/CONDITION: This Lease shall be construed
as though the covenants herein between Landlord and Tenant are
independent and not dependent and Tenant shall not be entitled to
any setoff of the rent, except as set forth in Section 23.9
hereof, or other amounts owing hereunder against Landlord if
Landlord fails to perform its obligations set forth herein;
provided, however, the foregoing shall in no way impair the right
of Tenant to commence a separate action against Landlord for any
violation by Landlord of the provisions hereof so long as notice
is first given to Landlord and any holder of a mortgage or deed
of trust covering the Development or any portion thereof and an,
opportunity granted to Landlord and such holder to correct such
violation as provided in Section 23.9 above.
27.4 TERM OF THIS LEASE: The expressions "the term" and
"the terms" of this Lease are used interchangeably herein and
wherever used in this Lease shall be deemed to refer not 'only to
the initial term but to any and all extensions and renewals
thereof as well.
27.5 COUNTERPARTS: This Lease may be executed in
several counterparts, each of which shall be deemed an original,
and such counterparts shall constitute but one and the same
instrument.
27.6 NOTICE: "Notice" means any notice, demand,
request, or other communication or document to be provided under
this Agreement to a party to this Lease. All Notices shall be in
writing and shall be given to the party at its address or
telecopy number set forth below or such other address or telecopy
number as the party may later specify for that purpose by notice
to the other party. Each Notice shall, for all purposes, be
deemed given and received:
27.6.1 If given by telecopy, "v hen the telecopy is
transmitted to the party's telecopy number specified below and
confirmation of complete receipt is received by that transmitting
party during normal business hours or on the next business day if
not confirmed during normal business hours;
27.6.2 If hand delivered to a party against
receipted copy, when the copy of the notice is receipted;
27.6.3 If given by a nationally recognized and
reputable overnight delivery service, the day on which the notice
is actua1Iy received by the party and
27.6.4 If given by any other means or if given by
certified mail, return receipt requested postage prepaid, two (2)
days after it is posted with the United States Postal Service, at
the address of the party specified below:
If to Landlord: Edgemark Development LLC
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. XxXxxxx
Telecopy No. (000) 000-0000
With a copy to: Xxxxxxxxxx Hyatt & Xxxxxx, P.C.
000 x0xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention. Xxxxxx Xxxxxxxx
Telecopy No. (000) 000-0000
If to Tenant: GART BROS. SPORTING GOODS COMPANY
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Vice President -Real Estate
Telecopy No. (303) 863-225.8
With a copy to: GART BROS. SPORTING GOODS COMPANY
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
TelecopyNo. (000) 000-0000
If any Notice is sent by telecopy, the transmitting party
shall send a duplicate copy of the Notice to the other party by
regular mail. In all events, however, any Notice sent by telecopy
transmission shall govern all matters dealing with delivery of
the Notice, including the date on which the Notice is deemed to
have been received by the other party. The provisions above
governing the date on which a Notice is deemed to have been
received by a party to this Lease shall mean and refer to the
date on which a party to this Lease, and not its counselor other
recipient to which a copy of the Notice may be sent, is deemed to
have received the Notice. If Notice is tendered under the
provisions of this Lease and is refused by the intended recipient
of the Notice, the Notice shall nonetheless be considered to have
been given and shall be effective as of the date provided in this
Lease. The contrary notwithstanding, any Notice given in a manner
other than that provided in this Lease that is actually received
by the party to receive notice, shall .be effective on receipt of
the Notice. NOTWITSTANDING ANYTHING HEREIN TO THE CONTRARY,
NOTICES OF DEFAULT OR TERMINATION SHALL ONL Y BE GIVEN BY
CERTIFIED MAIL RETURN RECEIPT REQUESTED, POSTAGE PREPAID,
PURSUANT TO SECTION 27.6.4 HEREUNDER.
27.7 FORCE MAJEURE: In the event that Landlord or
Tenant are delayed or prevented from performing any of their
respective obligations during the term of this Lease because of
Acts of God, strikes, lockouts, labor troubles, inability to
procure materials, failure of power, governmental restrictions,
casualty or reasons of a like nature not the fault of the party
delayed in the performance of such obligation, then the period of
such delays shall be deemed added to the time herein provided for
the performance of any such obligation and the defaulting party
shall not be liable for losses or damages caused by such delays;
provided, however, that this Section shall not apply to the
payment of any sums of money required to be paid by Tenant
hereunder.
27.8 TENANT'S AUTHORITY: Tenant hereby warrants and
certifies to Landlord that Tenant is duly authorized to conduct
business in the state in which the Premises is located. Tenant
hereby further warrants arid certifies to Landlord that the
undersigned officers of Tenant, as such officers, are authorized
and empowered to bind the Tenant to the terms of this Lease by
their signatures hereto.
27.9 LANDLORD'S AUTHORITY: Landlord hereby warrants and
certifies to Tenant that Landlord is duly authorized to conduct
business in the state in which the Premises is located. Landlord
hereby further warrants and certifies to Tenant that the
undersigned officers of Landlord, as such officers, are
authorized and empowered to bind the Landlord to the terms of
this Lease by their signatures hereto.
27.10 GOVERNING LAW: The laws of the State of Kansas
shall govern the validity, performance and enforcement of this
Lease and any actions brought hereunder shall be heard in courts
located in said State. The invalidity or unenforceability of any
provision of this Lease shall not affect or impair any other
provision.
27.11 ATTORNEY'S FEES: Upon any dispute between Landlord
and Tenant under this Lease, the prevailing party shall be
entitled to recover from the nonprevailing party reasonable
attorneys fees and costs incurred in contesting such dispute.
27.12 RULE OF CONSTRUCTION: The rule of construction to
the effect that an instrument shall be construed against its
draftsman shall not apply to this Lease and shall not negate or
invalidate any provision of this Lease.
27.13 ACCORD AND SATISFACTION: No act or thing done by
Landlord or Landlord's agents during the term hereof, including,
but not limited to, any agreement to accept surrender of the
Premises or to amend or modify this Lease, shall be deemed to be
binding on Landlord, unless such act or thing shall be by a
partner or officer of Landlord, as the case may be, or a party
designated in writing by Landlord as so authorized to act. The
delivery of keys to Landlord, or Landlord's agents, employees, or
officers shall not operate as a termination of this Lease or a
surrender of the Premises. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent and all other
amounts owing, as herein stipulated, shall be deemed to be other
than on account of the earliest stipulated rent or other amounts
nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of
such rent or pursue any other remedy available to Landlord.
27.14 COMPLIANCE WITH LAWS, RULES AND REGULATIONS:
Tenant, at Tenant's sole cost and expense shall comply with all
laws, ordinances, orders, rules and regulations of state,
federal, municipal or other agencies or bodies and matters of
record, including, without limited -to the Permitted Exceptions,
now in effect, or which may hereafter be in effect, which shall
impose any duty upon Landlord or Tenant with respect to the use,
occupation or alteration of the Development. Tenant shall not
commit waste or suffer or permit waste to be committed or permit
any nuisance on or in the Development. Tenant agrees that it will
not store, keep, use sell, dispose of or offer for sale in. upon
or from the Development any article or substance which may be
prohibited by any insurance policy in force from time to time
covering the Development
Landlord and Tenant covenant and agree that, during the term
of this Lease and any extensions or renewals thereof, in no event
shall any portion of the Development be used for a Restricted
Use. As used herein, the term "Restricted Use" shall mean anyone
or more of the following uses full service sit down restaurant
(except in the event of a provision of a 10/1 parking ratio therefor),
bowling alley, pool hall, billiard parlor skating rink roller rink
amusement arcade, adult book store, adult theatre adult amusement
facility, any facility selling or displaying pornographic
'materials or having such displays second hand store auction
house or flea market. Restricted Uses shall not include the
operations of a video store such as a Blockbuster Video,
Hollywood Video, or the like (provided that such video store
shall be permitted to have only incidental sales or rental of
pornographic videos which are not advertised or visible from the
exterior of the video store premises).
27.15 CAPTIONS: The captions appearing in this Lease are
inserted only as a matter of convenience and in no way define,
limit construe or describe the scope or intent of any section
27.16 BROKERS: Landlord agrees to indemnify and hold
harmless Tenant from and against any liability or claim whether
meritorious or not arising with respect to any broker whose claim
arises by, through or on behalf of Landlord. Tenant agrees to
indemnify and hold harmless Landlord from and against any
liability or claim whether meritorious or not arising with
respect to any broker whose claim arises by, through or on behalf
of Tenant.
27.17 TIME: "Time is of the essence in this Lease and in
each of the provisions hereof.
27.18 LANDLORDS ABILTY TO MORTGAGE THE DEVELOPMENT:
Notwithstanding anything in this Lease to the contrary, nothing
contained in this Lease shall restrict or limit Landlords ability
to place mortgages against the Land. Building or any other part
of the Development at any time so long as Landlord complies with
the provisions of Section 17.1 of this Lease. Any such mortgage
and documents related thereto shall be considered a Permitted
Exception under this Lease.
27.19 CLOSING CONTINGENCY: Notwithstanding anything
contained in this tease to the contrary, Landlord or Tenant shall
have the right to terminate this Lease, if Landlord does not on
or before January 31. 2002 provide Tenant in form reasonably
satisfactory to Tenant, evidence that Landlord has effectuated
the purchase of the Development ("Notice of Commencement").
Tenant may exercise its right to terminate this Lease under this
Section by delivering thirty (30) days written notice of
termination to Landlord on or after January 31, 2002; however, in
the event that Landlord's purchase of the Development occurs on
or before the end of the aforementioned thirty (30) day period
then said notice and right to terminate shall be void and of no
further force or effect.
27.20 FINANCIAL STATEMENTS: Tenant will provide its
current financial statements within ten (10) days of Landlord's
request therefor, if Landlord requests the same in connection
with its actual or proposed transfer of the Premises or for
financing of the same.
27.21. PERMITTED EXCEPTIONS: The terms, conditions and
provisions of this Agreement are subject and subordinate to the
terms conditions and provisions of the Permitted Exceptions; any
conflict between this Lease and the Permitted Exceptions the
Permitted Exceptions shall prevail; and any failure of Tenant to
comply with the terms of the Permitted Exceptions shall be a
default hereunder, All sums owed by Landlord under the Permitted
Exceptions, whether due before or during the term hereof shall be
paid by Tenant as directed under the Permitted Exceptions, as
additional rent on or before the date due thereunder.
Notwithstanding the foregoing, in the event of a Recapture, from
and after the effective date of such event. Landlord shall be
responsible for its pro rata share of the cost of complying with
the Permitted Exceptions pursuant to this Section 27.21. So long
as Tenant has the benefit of the Exclusive, Landlord shall use
commercially reasonable efforts, at Tenant's direction and sole
cost and expense to enforce any similar exclusives available in
the Permitted Exceptions. Tenant shall indemnify defend and hold
Landlord harmless from and against all costs and expenses,
including, without limitation attorneys' fees, incurred by
Landlord in connection with said enforcement of exclusive rights.
27.22 SEVERABILITY: If any clause or provision of this
Lease is illegal, invalid, or unenforceable under present or
future laws effective during the term of this Lease, then and in
that event it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby and it is
also the intention of the parties to this. Lease that in lieu of
each clause or provision of this Lease that is illegal, invalid,
or unenforceable there be added as a part of this
Lease a clause or provision as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be possible
and be legal, valid, and enforceable.
27.23 SUCCESSORS: Except as herein specifically set
forth, all terms, conditions, and covenants to be observed and
performed by the parties hereto shall be applicable to and
binding upon their respective heirs, administrators, executors,
and assigns. The terms, conditions, and covenants hereof shall
also be considered to be covenants running with the land to the
fullest extent permitted by law.
27.24 SALE BY LANDLORD: The term "Landlord" as used in
this Lease, so far as covenants or obligations on the part of
Landlord are concerned, shall, be limited to mean and include
only the owner or owners of the Premises at the time in question
and, in the event of any transfer or transfers of the title
thereto, Landlord herein named (and in the case of any subsequent
transfers or conveyances, the then grantor) shall be
automatically released, from and after the date of such transfer
or conveyance, of all liability as respects the performance of
any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed, provided that any funds in
the hands of Landlord or the then grantor at the time of such
transfer in which Tenant has an interest shall be turned over to
the grantee and any amount then due and payable to Tenant by
Landlord or the then grantor under any provisions of this Lease
shall be paid to Tenant.
27.25 TERMINATION OF LEASE: The termination or mutual
cancellation of this Lease shall not work a merger, and such
termination or mutual cancellation shall, at the option of
Landlord, either terminate all subleases and subtenancies or
operate as an assignment to Landlord of any or all such subleases
or subtenancies.
27.26 LENDER MODIFICATIONS: Tenant agrees to, meke such
modification and amendments of this Lease as may hereafter be
required to conform to any lender's requirements, so long as such
modifications or amendments will not increase Tenant's
obligations hereunder or materially alter its rights as set forth
herein.
27.27 OUTDOOR SALES: Subject to the terms and conditions
of this Section, (upon advance written notice to Landlord if a
Recapture has occurred), and provided Tenant has not assigned or
sublet all or substantially all of the Premises, Tenant shall
have the right to conduct seasonal Christmas tree, Fourth of July
Fireworks sales, and sports equipment demonstrations in the
parking lot of the Development and sidewalk sales in front of the
Premises. Notwithstanding anything herein to the contrary, Tenant
shall indemnify, defend and hold Landlord harmless from and
against any and all loss, cost, damage, expense, or claim,
including, without limitation, attorneys' fees, relating to said
outside sales activities tenant shall repair all damage caused by
said activities and shall operate the same in first class and
professional manner. Tenant shall not operate said outdoor
activities, if such activities interfere with the parking for,
visibility of or access to any other tenants in the Development,
as determined by Landlord in its reasonable discretion.
27.28 BINDING EFFECT: Submission of this instrument for
examination or signature by Tenant does not constitute a
reservation of or an option for lease, and it is not effective as
a lease or otherwise until execution and delivery by both
Landlord and Tenant (the "Effective Date).
27.29 TENANT DUE DILIGENCE: Prior to Landlord's purchase
of the Development, Landlord shall deliver to Tenant (i) a title
report (the "Title Report") with copies of the recorded title
matters affecting the Development available from the title
company; (ii) a survey of the Development; and (iii) and phase I
environmental report regarding the Development (collectively, the
"Due Diligence Documents"). Tenant shall have four (4) business
days after its receipt of the Due Diligence Documents, and any
updates thereto, to terminate this Lease by delivering written
notice thereof to Landlord on or before the end of said four (4)
business day period. In the event of said termination, neither
party shall have any further obligation or liability to the other
hereunder, except that the obligations of the parties pursuant to
Section 27.16 hereof shall survive said termination. In the event
that Tenant does not deliver said written notice of termination,
its right to terminate pursuant to this section 27.29 shall be
null, void and of no further force or effect.
27.30 LEASE GUARANTY: This Lease is contingent upon the
delivery by Gart Sports Company, a Delaware corporation and
parent company of Tenant, of a fully executed copy of that
certain guaranty in the form attached hereto as ExbibitC.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be signed as of the day and year first above written.
LANDLORD: TENANT:
EDGEMARK DEVELOPMENT LLC GART BROS. SPOR11NG GOODS
a Colorado limited liability company COMPANY, a Colorado corporation
By:/s/ Xxxxxxx X Xxxxxx By: /s/ Xxxx X Xxxxxx
Name: Xxxxxxx X Xxxxxx Xxxx X Xxxxxx
Its: Manager Its: President
Exhibit A
Legal Description
Parcel One
Xxx 0, Xxxxx 0, Xxxxxx & Recreation Addition to Wichita, Sedgwick
County, Kansas, more specifically described as follows:
Beginning at the Northeast xxxxx of Lot 2. Block 1 Sports &
Recreation Addition to Wichita Sedgwick County Kansas; thence,
South 0 degrees 00' 00" East a distance of 500.00 feet to the
Southeast xxxxx of said Lot 2; thence North 90 degrees 00' 00"
West a distance of 490.90 feet to the Southwest corner of said
Lot 2; thence North 0 degrees 00' 00" East a distance of 500.00
feet to the Northwest xxxxx of said Lot 2; thence, North 90
degrees 00' 00" East a distance of 490.90 feet to the point of
beginning;
Parcel Two
Together with Easement for Joint Access over the North 75 feet of
the East 25 feet of Xxx 0, Xxxxx 0 Xxxxxx & Xxxxxxxxxx Addition
to Wichita, Sedgwick County Kansas as set forth on Film 1489,
page 1020.
Parcel Three
Together with Reciprocal Easement and Use Restriction Agreement
over the following described premises Commencing at the Northeast
xxxxx of Xxx 0, Xxxxx 0, Xxxxxx & Recreation Addition to Wichita
Sedgwick County, Kansas; thence South along the East line of said
Lot 1 a distance of 75.00 feet for the point of beginning; thence
continuing South without deflection 381.94 feet; thence with a
deflection angle 89 degrees 57' 01" right West 140.43 feet; thence
following the arc of a curve to the left having a radius of 63.00
feet Southwesterly 48.77 feet; thence continuing tangent from said
curve 10.21 feet to the Westerly line of said Lot 1; thence with a
deflection angle 90 degrees 00' 00" right Northwesterly along the
Westerly line of said Lot 1 at a distance of 30.00 feet; thence with
a deflection angle 90 degrees 00' 00" right Northeasterly 10.21
feet; thence following the arc of a curve to the right having a
radius of 93.00 feet Northeasterly 72.00 feet; thence continuing
tangent from said curve 95.48 feet; thence following the arc or a
curve to the left having a radius of30.00 feet Northeasterly
47.10 feet; thence continuing tangent from said Curve and
parallel with the East line of said Lot 1 at a distance of 321.98
feet; thence with a deflection angle 90 degrees 00' 00" right
East parallel with the North line of said Lot 1, a distance of
15.00 feet to the point of beginning, as set forth on Film 1652,
page 1358.
Parcel Four
Together with Private Drainage Easement over, along and under the
following described tract of land. The centerline of a 10 foot
drainage easement described as follows: Beginning at a point on
the East line and 15 feet South of the Northeast xxxxx of Xxx 0,
Xxxxx 0, of said Addition, thence West parallel to and 15 feet
South of the North line of said Lot 1,305 feet; thence
Northwesterly to a point on the West line and 5 feet South of the
Northwest corner of said Lot 1 and
The centerline of a 10 foot drainage easement described as
follows: Beginning at a point on the East line and 39 feet North
of the Southeast xxxxx of Xxx 0, Xxxxx 0, of said Addition;
thence South westerly to a point on the West line and 46.03 feet
Northwest of the Southwest xxxxx of said Lot 1.
