North Carolina-Harrisburg-Hudspeth Road and Morehead Road Lease - Performance Park Partners LLC and Sports Image Inc.
STATE OF NORTH CAROLINA
LEASE AGREEMENT
COUNTY OF CABARRUS
THIS LEASE AGREEMENT is made and entered into as of the 9th day of
July, 1997, by and between Performance Park Partners, LLC a North Carolina
limited liability company with offices in Charlotte, North Carolina ("Landlord")
and Sports Image, Inc. an Arizona corporation ("Tenant").
PRELIMINARY STATEMENT
A. Landlord is the owner of that certain parcel of land (the "Land")
containing approximately 16.3 acres located on Hudspeth Road (S.R. 1302) near
its intersection with Morehead Road (S.R. 1300) in Cabarrus County, North
Carolina. The Land is depicted on the boundary and division survey dated June 2,
1997 attached hereto as Exhibit A.
B. Landlord shall construct on the Land an office warehouse building
(the "Building") containing approximately 113,755 square feet of floor area,
together with associated improvements such as parking areas, sidewalks,
landscaped areas and utility facilities (collectively, with the Building, the
"Improvements") on the Land. Tenant intends to occupy the Building and use the
other Improvements for office, warehouse and related purposes.
C. The Land, the Building and the other Improvements are referred to
collectively in this Lease as the "Premises." In order to evidence their
agreement regarding Tenant's lease of the Premises, the parties are entering
into this Lease Agreement (this "Lease").
LEASE
NOW, THEREFORE, in consideration of $1.00 paid in hand by Tenant to
Landlord, the mutual covenants and conditions contained in this Lease, including
the covenant to pay rent, and other good and valuable consideration, Landlord
and Tenant hereby agree, for themselves, their successors and assigns, as
follows:
1. Premises. Landlord leases to Tenant and Tenant leases from Landlord
the Premises, for the term and on the terms and conditions set forth in this
Lease.
2. Term. The term of this Lease shall begin on the date that the
substantially completed Premises are delivered to Tenant, as provided in
paragraph 5, and shall end at midnight on the last day of the Two Hundred Fortieth
(240th) complete calendar month following the commencement date.
3. Renewal. Provided Tenant is not in default under this Lease, Tenant
shall have the right to renew this Lease for four (4) periods of five (5) years
each. Each renewal period shall be on the same terms and conditions set forth in
this Lease except that Tenant shall have no further renewal rights after the
final renewal period. All references in this Lease to the term of this Lease
shall be deemed to include the renewal periods provided for herein unless the
context clearly indicates a different meaning.
4. Exercise of Renewal. The right of Tenant to renew this Lease shall
be exercised by written notice delivered to Landlord in the manner provided in
paragraph 25 below not less than ninety (90) days prior to the expiration of the
initial term or the then current renewal period, as applicable, after which
Tenant's renewal right shall expire, time being of the essence. Notwithstanding
the foregoing, Tenant's right to exercise its renewal option shall not expire
until ten (10) days after Landlord has delivered notice to Tenant that Tenant
has failed to timely exercise its option to renew.
5. Delivery of Premises. Landlord shall deliver the Premises to Tenant
when the Premises are substantially completed. Landlord and Tenant expect the
Premises to be substantially completed within nine (9) months after commencement
of construction, and Landlord and Tenant agree to exercise reasonable efforts to
meet the expectation. If, however, the Premises are not substantially completed
by the end of the twelfth (12th) month after commencement of construction, and
if such failure to achieve substantial completion is not due to force majeure or
to delays caused by Tenant, Tenant may terminate this Lease by written notice to
Landlord and neither party shall have any further rights or obligations under
this Lease. In this lease, the Premises shall be deemed to be "substantially
completed" on the date the last of the following occurs:
(a) Landlord's contractor states in writing for the benefit of
Tenant that the Premises have been substantially completed in accordance with
the nine (9) page Scope of the Work Specifications of G.L. Wilson Building
Company (the "Contractor") dated May 28, 1997 and the five (5) page site plan,
floor plan, elevation and main and upper level enlarged plan of the Contractor
both attached as Exhibit B to this Lease, subject only to minor punchlist items
that do not materially impair the use of the Premises for their intended
purpose; and
(b) A temporary certificate of occupancy is issued for the
Premises by the appropriate authority, subject only to conditions that do not
materially impair the use of the Premises for their intended purpose.
-2-
Tenant shall inspect the Premises within thirty (30)days after delivery
thereof and submit a written punchlist of construction defects to Landlord. If
Tenant does not submit such punchlist on or before the thirtieth (30th) day
after delivery of the Premises, Tenant shall be deemed to have accepted the
Premises "as is". If Tenant omits any item from such punchlist, Tenant shall be
deemed to have accepted such item "as is". Tenant acknowledges that Landlord
makes no representations or warranties as to the condition of the Premises or
their suitability for any particular purpose, and that Landlord shall have no
responsibility to make any repairs or alterations to the Premises prior to or
after their delivery to Tenant. Tenant shall look to the contractor and not to
Landlord for corrections of punchlist items. Landlord shall assign to Tenant all
of Landlord's rights in, to and under any warranties affecting the Premises.
6. Rent. Tenant shall pay to Landlord as monthly rent the applicable
amount stated below in this paragraph 6, payable in advance on the first day of
each calendar month without deduction or setoff, commencing on the commencement
date of the term of this Lease and continuing throughout the term of this Lease.
If the commencement date falls on a day other than the first day of a calendar
month, the installment of rent payable for the initial partial calendar month
shall be payable on the first day of the following calendar month. All rent
shall be paid to Landlord at the address to which notices to Landlord are given
as set forth in paragraph 25 below, and shall be paid without demand, setoff or
deduction. Rent for any partial month shall be prorated on a daily basis. All
past due rent shall bear interest at the rate of twelve percent (12%) per annum
from the date due until the date paid. The following are the amounts of rent
applicable to the respective portions of the terms of this Lease:
113,755 sq.ft. Years
Monthly Rent Annual Rent (Annual Rent/sq.ft.) -----
------------ ----------- --------------------
1-2 $ 57,833.33 $688,000 $ 5.69 3-4
$ 61,833.33 $736,000 $ 6.09 5-6
$ 65,833.33 $784,000 $ 6.49 7-8
$ 69,833.33 $832,000 $ 6.88 9-10 $
73,833.33 $880,000 $ 7.28
Annual rent for each of years 11-20 of the term of this Lease be adjusted as of
the first day of each such year and shall equal the greater of (a) the sum of
(i) annual rent for the immediately preceding year plus (ii) three percent (3%)
of annual rent for the immediately preceding year, or (b) the sum of (i) annual
rent for the immediately preceding year plus (ii) annual rent for the preceding
year multiplied by the percentage increase in "CPI" during the immediately
preceding year, stated as a decimal. "CPI" on each rent adjustment date shall be
measured by the U.S. Department of Labor Consumer Price Index for all Urban
Consumers (U.S. City Average, 1982-84=100) most recently published prior to
-3- each such date; or if such index is
not then in use, by the index most nearly comparable thereto. Tenant shall
pay to Landlord as monthly rent for each of years 11-20 of the term of this Lease
an amount equal to one-twelfth (1/12) of the applicable annual rent, payable in
advance on the first day of each calendar month without deduction or setoff. Rent
for each year of each renewal period, if any, exercised during the term of this
Lease shall be calculated and paid in the same manner as for years 11-20 of the
term of this Lease.
7. Additional Rent. If Tenant does not pay such expenses directly as
provided in this Lease, Tenant shall pay to Landlord, as additional rent, the
following operating expenses incurred by Landlord with respect to the Premises
during the term of this Lease:
(a) All real estate taxes and assessments levied or assessed
against the Premises;
(b) The premiums for all policies of casualty and liability
insurance maintained by Landlord with respect to the Premises;
(c) The cost of all utility services provided to the Premises,
including but not limited to electricity, natural gas, water and sewer
services and trash removal;
(d) The cost of all repairs to the Premises, including any
alterations, structural or otherwise, necessary to comply with
applicable laws; and
(e) All other costs incurred by Landlord in operating and
maintaining the Premises, including but not limited to the cost of
janitorial services, security services, maintenance of landscaped and
paved areas, maintenance of utility systems and other similar
expenditures.
Tenant shall reimburse Landlord for each of the foregoing expenses
within ten (10) days after receipt of a written statement from Landlord,
detailing the expense incurred by Landlord. This paragraph 7 shall not be deemed
either to obligate Landlord to pay any such amounts or to constitute consent by
Landlord to Tenant's failure to pay such amounts directly as required in the
other provisions of this Lease, but this paragraph 7 is intended only to provide
an alternate remedy for the protection of Landlord exercisable by Landlord at
Landlord's sole option and at Landlord's sole discretion in case of Tenant's
failure to pay such amounts directly.
8. Repair and Maintenance. Tenant shall maintain in good condition and
repair the entire Premises, including without
-4- limitation the Building and other
Improvements on the Premises, and all roofs and exterior walls, landscaping, driveways
and parking areas, and shall make all necessary repairs to the building structure
and concealed systems (including without limitation plumbing, electrical, heating
and air conditioning) within or servicing the Premises. Tenant shall also make any
modifications to the Premises required to comply with applicable legal requirements,
including without limitation the Americans with Disabilities Act.
9. Alterations and Personal Property. Tenant shall have no right to
make any alterations in the Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld, conditioned or delayed.
Tenant shall submit to Landlord a written request for consent to alterations,
and such request shall include a complete description of the proposed scope and
schedule of work, together with complete plans and specifications. Landlord may
withhold, condition or delay its consent if the alterations will decrease the
value of Premises or will violate any applicable laws, ordinances or
restrictions affecting the Premises. If Landlord approves any such alterations,
Tenant must obtain advance written approval from Landlord of plans and
specifications for the work, and shall keep the Premises free and clear of any
lien or claim of lien arising out of any such work occurring, or allegedly
occurring, by, through or under Tenant. Tenant shall immediately pay and
discharge any such lien or claim of lien that is filed. Notwithstanding the
foregoing, Landlord's approval of plans and specifications shall not be required
for any interior, non-structural alteration costing less than $50,000.00.
All trade fixtures and furnishings installed in or attached to the
Premises by and at the expense of Tenant may be removed by Tenant at any time
during the Lease term provided Tenant is not in default hereunder, and provided
that such removal will not damage the Premises or that any damage caused by such
removal will be promptly repaired by Tenant at its expense. Any such property
not so removed before the expiration of the term of this Lease or the earlier
termination of this Lease shall, as Landlord's option, become the property of
Landlord, or shall be removed by Tenant. Tenant shall repair any damage caused
by removal, and these obligations shall survive termination of this Lease or
expiration of the Lease term. All personal property, equipment and trade
fixtures owned by Tenant shall be brought onto the Premises at Tenant's sole
risk, and Tenant hereby releases Landlord from any liability for damage to such
property, no matter how caused.
10. Taxes. Tenant shall pay, prior to delinquency, all real estate
taxes and assessments that are levied or assessed against the Premises during
the term of this Lease. Tenant also shall pay, prior to delinquency, all taxes,
assessments, license fees and other charges of any nature whatsoever that are
levied or assessed against any personal property or equipment of Tenant or are
-5- otherwise based on Tenant's operations
within the Premises during the term of this Lease. On demand by Landlord,
Tenant shall furnish Landlord with satisfactory evidence of the payments.
All real estate taxes and assessments for the year in which the term of this Lease
commences shall be prorated between Tenant and Landlord.
11. Utilities and Services. Tenant shall make all arrangements for and
pay for all utilities and services furnished to the Premises, including, without
limitation, gas, electricity, water, sewer and telephone service, and for all
charges for initiation of service therefor. Landlord represents and warrants
that all utilities used by Tenant at the Premises are, or will be at the
commencement of the term of this Lease, separately metered from any other
property.
12. Damage by Casualty or Fire. If the Building or other Improvements
are totally or partially damaged or destroyed by casualty, explosion or fire,
however caused, or by the elements, or by any other casualty covered by a
standard "all-risk" policy of casualty insurance, then the same shall be
promptly restored by Tenant to their previous condition. Such destruction shall
not terminate this Lease. In case of any such damage or destruction, there shall
be no abatement or reduction of rent. Notwithstanding the foregoing, if the
Building is damaged or destroyed to an extent greater than fifty percent (50%)
of the replacement cost thereof during the last two (2) years of the initial
term of this Lease or during the last two (2) years of any renewal period, and
the insurance proceeds available with respect to that damage equal or exceed the
replacement cost of the Building and other Improvements at the time of such
damage or destruction, then Tenant shall have the right to terminate this Lease
by delivery of written notice of such termination to Landlord within thirty (30)
days after such damage or destruction. Upon any such termination, Landlord shall
be entitled to receive all insurance proceeds payable with respect to such
damage or destruction, excluding the proceeds of any separate policy of
insurance maintained by Tenant on its personal property, equipment or trade
fixtures.
13. Insurance. Tenant shall maintain, throughout the term of this
Lease, a policy of "all-risk" property insurance on the Improvements in an
amount equal to the full replacement cost of the Improvements. Tenant also shall
maintain a policy of general public liability insurance with a single limit of
liability of not less than $1,000,000 per occurrence, and shall maintain on all
its personal property, business fixtures and equipment a policy of standard fire
and extended coverage, with vandalism and malicious mischief endorsements, in an
amount sufficient to meet the co-insurance requirements of such policy. All
insurance to be maintained by Tenant under this paragraph 13 shall name Landlord
and the holder of any deed of trust on the Premises as additional insureds, as
their interests may appear. Tenant shall provide Landlord upon request with
certificates (or upon request, copies)
-6- of the insurance policies required
to be maintained under this paragraph 13.
14. Taking for Public Use. If the entire Premises are taken for any
public or any quasi-public use under any statute or by right of eminent domain,
or by private purchase in lieu thereof, then this Lease shall automatically
terminate as of the date that title is vested in the condemning authority. If
any part of the Premises is so taken and Tenant determines in its reasonable
business judgment that the remainder thereof is unusable for the purposes for
which the Premises are leased, then Tenant shall have the right to terminate
this Lease by delivery of written notice to Landlord within ninety (90) days
after the date of such taking, time being of the essence.
If any part of the Premises is so taken and this Lease is not
terminated under the provisions of the preceding paragraph, then the rent shall
be apportioned according to the ratio of the square footage of the floor area of
the Building, if any, taken to the square footage of the floor area of the
Building immediately prior to such taking, and Landlord shall, to the extent
possible with any award of damages from such taking, restore the remaining
portion of the Premises to the extent necessary to render it reasonably suitable
for the purposes for which it is leased, and shall make all repairs to any
Building damaged by such taking to the extent necessary to constitute the
Building a complete architectural unit.
All compensation awarded or paid upon such a total or partial taking of
the Premises shall belong to and be the property of Landlord without any
participation by Tenant; provided, however, that nothing contained herein shall
be construed to preclude Tenant from prosecuting any claim directly against the
condemning authority in such condemnation proceedings for the lost value of
Tenant's leasehold, for loss of business, or for depreciation to, damage to, the
cost of removal of, or the value of stock, trade fixtures, furniture, and other
personal property belonging to Tenant; provided, further, that no such claim
shall diminish or otherwise adversely affect Landlord's award.
15. Indemnity and Waiver. Each party shall protect, indemnify, defend
and save the other party harmless from and against any and all claims, demands,
causes of action and other expenses of any nature whatsoever (including
attorneys' fees), for injury to or death of persons, or loss of or damage to
property, occurring on or about the Premises, or in any manner growing out of or
connected with such party's use and occupancy of said Premises, when not a
result of the negligence or intentional misconduct of the party being
indemnified.
Tenant hereby releases and waives all claims against Landlord, its
agents and employees, for injury or damage to person, property or business
sustained in or about the Premises by Tenant, its
-7- agents or employees. Landlord shall
not be responsible or liable for any event, act or omission to the extent covered
by insurance maintained by Tenant, or required by this Lease to be maintained
by Tenant, and Tenant shall require its insurers to include in Tenant's insurance
policies effective waivers of subrogation rights for the benefit of Landlord,
its agents and employees.
16. Default. The occurrence of any one of the following shall
constitute a default by Tenant:
(a) Failure to pay rent or any other amount payable under this
Lease within ten (10) days after written notice that such amount is
past due; or
(b) Failure to perform any other provision of this Lease if
the failure to perform is not cured within thirty (30) days after
notice thereof has been given to Tenant; provided, however, that if the
default is not reasonably capable of being cured in thirty (30) days,
Tenant shall not be in default if it commences the cure within that
thirty (30) day period and diligently prosecutes the cure to
completion.
17. Landlord's Remedies. Landlord shall have the following remedies if
Tenant defaults. These remedies are not exclusive; they are cumulative in
addition to any remedies now or later allowed by law.
(a) Landlord shall have the right to terminate Tenant's right
of possession of the Premises without terminating this Lease, and as
long as Landlord does not terminate this Lease, collect rent when due.
Tenant shall surrender possession of the Premises to Landlord and
Landlord shall have the right to enter the Premises after notice to
vacate and after obtaining an order of ejectment or other legal
authority and relet them. Tenant shall be liable immediately to
Landlord for all costs Landlord shall incur in reletting the Premises
including, without limitation, broker's commissions, expenses for
remodeling required by the reletting, and like costs. Reletting can be
for a period shorter or longer than the remaining term of the Lease.
Tenant shall pay to Landlord the rent due under this Lease on the date
that the rent is due, less the rent Landlord receives from any
reletting. No act by Landlord allowed by this paragraph or surrender of
possession of the Premises pursuant to this paragraph shall terminate
this Lease unless Landlord notifies Tenant that Landlord elects to
terminate this Lease. Landlord shall use reasonable efforts to relet
the Premises upon reasonable terms. Tenant shall be responsible only
for the costs of such items as carpet, paint and repair and maintenance
-8-
items for which Tenant was responsible with respect to any reletting
under this paragraph.
(b) Landlord shall have the right to terminate this Lease
without notice to vacate (any right to which is hereby waived by
Tenant) and Tenant's rights to possession of the Premises at any time,
and reenter the Premises as described in subparagraph (a) hereinabove.
No act by Landlord other than the giving notice of termination to
Tenant shall terminate this Lease. Upon termination, Landlord shall
have the right to pursue its remedies at law or in equity to recover of
Tenant all amounts of rent then due or thereafter accruing and such
other damages as are caused by Tenant's default. In particular, but not
by way of limitation, Landlord may choose to accelerate rent due under
this Lease after termination, with the measure of such accelerated rent
being equal to the difference, if any, produced by subtracting the
then-current market rent for the Premises from the rent reserved in
this Lease, multiplying the positive difference, if any, by the
remaining term of this Lease and reducing the product to present value
at the rate paid for United States Treasury Notes in the most recently
completed auction.
Without limiting the foregoing, Tenant shall pay, upon demand, all cost
and expenses, including reasonable attorneys' fees, incurred by Landlord in
enforcing Tenant's obligations under this Lease. Landlord hereby waives all
statutory and common law landlord lien rights with respect to Tenant's personal
property, trade fixtures and inventory.
18. Assignment and Subleasing. Tenant shall not sell, assign, pledge or
hypothecate this Lease or sublease the Premises or any part thereof without the
prior written consent of Landlord, which shall not be unreasonably withheld,
conditioned or delayed. Any sale of the stock of Tenant which effects a change
in the ownership thereof from such ownership as of the date of this Lease shall
be deemed a violation of the foregoing provision unless Landlord consents to the
sale in writing. Consent by Landlord to one assignment or subleasing shall not
destroy or operate as a waiver of the prohibitions contained in this paragraph
as to future assignments or subleases, and all such later assignments or
subleases shall be made only with Landlord's prior written consent. In the event
any assignment of this Lease or sublease of the Premises or any part thereof is
made by Tenant, whether or not the same is consented to by Landlord, Tenant
shall remain directly and primarily liable to Landlord for payment of all rent
and other charges provided in this Lease, and for the faithful performance of
all of the covenants and conditions of this Lease by any assignee or subtenant
to the same extent as if the Lease had not been assigned or the Premises had not
been subleased.
-9-
19. Quiet Enjoyment. Provided Tenant performs all its covenants,
agreements and obligations hereunder, Landlord will warrant and defend Tenant in
the peaceful and quiet enjoyment of the Premises, subject to enforceable
easements, restrictive covenants and rights of way, if any, against the lawful
claims of all persons claiming under Landlord.
20. Use Clause/Compliance by Tenant with Legal Requirements. Tenant
shall use the Premises only for general office and warehouse purposes. Tenant
shall not change the use of the Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld, conditioned or delayed.
Landlord may withhold, condition or delay consent to any change of use which
would violate any applicable law, ordinance, rule or restriction or which would
pose an increased risk of injury or damage to persons or property, including,
without limitation, an increased risk of introduction into or onto the Premises
of Hazardous Materials. Tenant shall obey and comply with all laws, rules,
regulations, ordinances and other legal requirements of all legally constituted
authorities existing at any time during the Lease term. Tenant shall not cause
or permit a nuisance to exist on or about the Premises, and shall at all times
maintain the Premises in clean and attractive condition, properly dispose of all
trash, refrain from burning anything on or about the Premises, refrain from
engaging in any dangerous, illegal or immoral activities on or about the
Premises and obey such other reasonable rules that Landlord may issue from time
to time regarding Tenant's use of the Premises, provided that such rules shall
not materially increase Tenant's obligations under this Lease or impair Tenant's
use of the Premises in accordance with this Lease.
21. Hazardous Materials. Tenant shall not use, generate, manufacture,
produce, store, release, discharge or dispose of on, in, or under the Premises,
or transport to or from the Premises, any Hazardous Materials (as defined
below), or allow any other person or entity to do so, other than in the ordinary
course of Tenant's business on the Premises and in compliance with all local,
state and federal laws, ordinances and regulations relating to Hazardous
Materials. Tenant shall comply with all local, state and federal laws,
ordinances and regulations relating to Hazardous Materials on, in, under or
about the Premises.
Tenant shall promptly notify Landlord should Tenant receive notice of,
or otherwise become aware of, any: (a) pending or threatened environmental
regulatory action against Tenant or the Premises; (b) claims made or threatened
by any third party relating to any loss or injury resulting from any Hazardous
Material; or (c) release or discharge, or threatened release or discharge, of
any Hazardous Material in, on, under or about the Premises.
Tenant agrees to indemnify, defend and hold Landlord harmless from and
against any and all liabilities, claims, demands, costs
-10- and expenses of every kind and nature
(including attorneys' fees) directly or indirectly attributable to Tenant's
failure to comply with this paragraph, including, without limitation: (a) all
consequential damages; and (b) the costs of any required or necessary repair, cleanup
or detoxification of the Premises, and the preparation and implementation of
any closure, remedial or other required plan. The indemnity contained in
this paragraph 21 shall survive the termination or expiration of this Lease.
As used in this paragraph 21, the term "Hazardous Materials" shall mean
any element, compound, mixture, solution, particle or substance which is
dangerous or harmful or potentially dangerous or harmful to the health or
welfare of life or environment, including but not limited to explosives,
petroleum products, radioactive materials, hazardous wastes, toxic substances or
related materials, including, without limitation: (1) any substances defined as
or included within the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "toxic substances," "hazardous pollutants" or "toxic
pollutants," as those terms are used in the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, the Hazardous Materials Transportation Act, the Toxic Substances Control
Act, the Clean Air Act and the Clean Water Act, or any amendments thereto, or
any regulations promulgated thereunder, and any other law or regulation
promulgated by any federal, municipal, state, county or other governmental or
quasi governmental authority and/or agency or department thereof; (2) any "PCBs"
or "PCB items" (as defined in 40 C.F.R. ss.761.3); or (3) any "asbestos" (as
defined in 40 C.F.R. ss.763.63).
22. Limitation on Liability. Tenant shall look solely to the estate and
interest of Landlord in the Premises for the collection of any judgment
requiring the payment of money by Landlord for default or breach by Landlord
under this Lease. Landlord shall be released from any further liability under
this Lease upon a sale of the Premises.
23. Automatic Subordination. This Lease is and shall be subordinate to
any mortgage or deed of trust now of record or recorded after the date of the
Lease affecting the Premises. Tenant shall execute and deliver to Landlord and
Landlord's mortgagee any documentation requested by Landlord to confirm this
subordination within fifteen (15) days after request by Landlord or Landlord's
mortgagee. Landlord shall exercise reasonable efforts to obtain a written
agreement from the holder of any mortgage or deed of trust now of record
affecting the Premises by which such holder agrees not to disturb the tenancy of
Tenant under this Lease so long as Tenant is performing its obligations under
this Lease. In addition, Landlord shall obtain from the holder of any mortgage
or deed of trust recorded after the date of this Lease affecting the Premises a
written agreement by which such holder agrees not to disturb Tenant's tenancy
under this Lease so long as Tenant is
-11- performing its obligations under
this Lease, and Landlord shall exercise reasonable efforts to obtain in such
non-disturbance agreement such holder's agreement that condemnation and insurance
proceeds will be distributed as provided in this Lease.
24. Waiver. The waiver by Landlord of any breach of any covenant or
agreement herein contained shall not be a waiver of any other default concerning
the same or any other covenant or agreement herein contained. The receipt and
acceptance by Landlord of delinquent or partial rent shall not constitute a
waiver of that or any other default.
25. Notice. Any notice that either party desires or is required to give
the other party shall be in writing and shall be deemed to have been
sufficiently given if either served personally or sent by prepaid, registered or
certified mail, addressed to the other party at the address set forth below:
Landlord: 5257 Pit Road South
P.O. Box 880
Harrisburg, North Carolina 28075
Tenant:
Either party may change its address by notifying the other party of the
change of address in the foregoing manner. Notices may be given by counsel for a
party.
26. Surrender and Holding Over. Upon the expiration or earlier
termination of the Lease term, Tenant shall surrender possession of the Premises
in as good a condition as delivered to it, reasonable wear and tear and damage
by fire and other casualty excepted. If Tenant remains in possession of the
Premises following the expiration or earlier termination of this Lease term with
the consent of Landlord but without any written agreement between the parties,
Tenant shall be only a tenant at will, and there shall be no renewal of this
Lease or exercise of any option by operation of law.
27. Applicable Law. This Lease has been entered into under, and shall
be governed by, the laws of the State of North Carolina.
28. Integration and Binding Effect. The entire agreement, intent and
understanding between Landlord and Tenant is contained in the provisions of this
Lease and any stipulations, representations, promises or agreements, written or
oral, made prior to or contemporaneously with this Lease shall have no legal or
equitable effect or consequence unless reduced to writing
-12- herein. The terms "Landlord" and
"Tenant" and all pronouns relating thereto shall be deemed to mean and include
corporations, partnerships and individuals as may fit the context and the masculine
gender shall be deemed to include the feminine and the neuter and the singular
number the plural.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed and sealed in their names as of the day and year first above written.
PERFORMANCE PARK PARTNERS, LLC (SEAL)
By: __________________________(SEAL)
Its: _______________________, Manager
SPORTS IMAGE, INC.
By: _____________________________
Its: _____________________, President [CORPORATE
SEAL]
ATTEST:
____________________________
________ Secretary
-13- STATE OF ____________________
COUNTY OF ___________________
I, ________________________________________, a Notary Public for said
County and State, do hereby certify that ___________________________, manager of
Performance Park Partners, LLC, a North Carolina limited liability company,
personally appeared before me this day and acknowledged the due execution of the
foregoing instrument on behalf of the company.
WITNESS my hand and official seal, this the ______ day of
_______________, 1997.
___________________________________
Notary Public
My commission expires:
_____________________
[NOTARIAL SEAL]
STATE OF ____________________
COUNTY OF ___________________
This ______ day of _______________, 1997, personally came before me
___________________________________, who, being by me duly sworn, says that he
is the ________ President of Sports Image, Inc., an Arizona corporation, and
that the seal affixed to the foregoing instrument in writing is the corporate
seal of the company, and that said writing was signed and sealed by him, in
behalf of said corporation, by its authority duly given. And the said ________
President acknowledged the said writing to be the act and deed of said
corporation.
___________________________________
Notary Public
My commission expires:
_____________________
[NOTARIAL SEAL]
Exhibit B
Description of Plans and Specifications
(attached)