1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the
1st day of March, 1997, by and between BEALE STREET REALTY, LLC hereinafter
called "Landlord"; and HIGH PERFORMANCE SPORTS MARKETING, INC. hereinafter
called "Tenant".
AGREEMENT:
In consideration of the mutual covenants and agreements contained in
this Lease, the parties agree for themselves, their successors and assigns, as
follows:
1. DESCRIPTION OF PREMISES.
Landlord leases to Tenant, and Tenant accepts and rents from Landlord,
the premises located at 149 Gasoline Alley Drive, Mooresville, Iredell County,
North Carolina (the "Premises"), which Premises are more particularly described
on Exhibit A attached hereto and incorporated by this reference.
2. TERM; RENEWAL.
The term of this Lease shall commence on March 1, 1997 (the
"Commencement Date") and shall end at midnight on February 28, 2012 (the
"Expiration Date").
3. RENTAL.
During the full term of this Lease, including any Renewal Term, Tenant
shall pay to Landlord, without notice, demand, reduction (except as may be
applicable pursuant to paragraph entitled "Damage or Destruction of Premises"
or the paragraph entitled "Eminent Domain" of this Lease), setoff or any
defense, a total rental (the "Rent"), in advance, on the first day of each
month, of Sixteen Thousand One Hundred Sixtynine and 14/100 Dollars
($16,169.14) per month, subject to annual escalation as provided in clause (c)
below.
(a) Late Payment.
If any monthly installment of Rent or any other sum due and payable
pursuant to this Lease remains due and unpaid fifteen (15) days after said
amount becomes due, Tenant shall pay as additional rent hereunder a late
payment charge equal to the greater of (i) fifty and No/100 Dollars ($50.00) or
(ii) a sum equal to five percent (5%) of the unpaid rent or other payment. All
unpaid rent and other sums of whatever nature owed by Tenant to Landlord under
this Lease shall bear interest from the fifteenth (15th) day after the due date
until paid, at the lesser of twelve percent (12%) per annum or the maximum
interest rate per annum allowed by law. Acceptance by Landlord of any payment
from Tenant under this Lease in an amount less than that which is currently due
shall in no way affect Landlord's rights under this Lease and shall in no way
constitute an accord and satisfaction.
(b) Documentary Tax.
In the event that any documentary stamp tax, sales tax or any other
tax or similar charge (exclusive of any income tax payable by Landlord) levied
on the rental, leasing or letting of the
2
Premises, whether local, state or federal, is required to be paid due to the
execution of this Lease or otherwise with respect to this Lease or the payments
due under this Lease, the cost shall be borne by Tenant and shall be paid
promptly and prior to same becoming past due. Tenant shall provide Landlord
with copies of all paid receipts such tax or charge promptly after payment of
same.
(c) Annual Escalation of Rent.
The amount of the monthly Rent shall be increased annually during the
term of this Lease on March 1, 1998 and on each March 1 thereafter, for the
one-year period beginning on such March 1, if the CPI (as defined in this
Lease) for the month of January next preceding such March 1 shall be greater
than the CPI for the month of January in the previous year. Such increased Rent
shall be an amount equal to the monthly Rent in effect immediately prior to
such March 1 multiplied by a fraction, the numerator of which is the CPI for
the month of January next preceding such March 1 and the denominator of which
is the CPI for the month of January in the previous year. "Consumer Price
Index" means the monthly Consumer Price Index, All Urban Consumers, All Items,
U.S. City Average (1982-84=100), published by the U.S. Bureau of Labor
Statistics and generally referred to as the "CPI-U," or, if such index is no
longer published, the most nearly comparable index published by Federal
authorities which reflects changes in the cost of living. If information
necessary to compute the change in the CPI is not available on any March 1, the
previous monthly Rent shall continue until such information becomes available,
at which time appropriate retroactive adjustment shall be made to reflect the
increased monthly Rent from such March 1.
4. DELIVERY OF POSSESSION.
Landlord will deliver the Premises to Tenant on the Commencement Date.
5. ALTERATIONS AND IMPROVEMENTS BY TENANT.
Tenant shall make no structural changes respecting the Premises and
shall make no changes of any kind respecting the Premises that are visible from
the exterior of the Premises. Any other nonstructural changes or other
alterations, additions, or improvements to the Premises shall be made by or on
behalf of Tenant only with the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. All alterations, additions or
improvements, including without limitation all partitions, walls, railings,
carpeting, floor and wall covering and other fixtures (excluding, however,
Tenant's trade fixtures as described in the paragraph entitled "Trade Fixtures
and Equipment" below) made by, for, or at the direction of Tenant shall, when
made, become the property of Landlord, at Landlord's sole election, and shall,
at Landlord's sole election, remain upon the Premises at the expiration or
earlier termination of this Lease.
6. USE OF PREMISES.
(a) Tenant shall use the Premises only for office and warehouse
purposes and for no other purposes. Tenant shall comply with all laws,
ordinances, orders, regulations or zoning classifications of any lawful
governmental authority, agency or other public or private regulatory authority
(including insurance underwriters or rating bureaus) having jurisdiction over
the Premises. Tenant shall not do any act or follow any practice relating to
the Premises which shall constitute a nuisance or detract in any way from the
reputation of the Premises. Tenant's duties in this regard
2
3
shall include allowing no noxious or offensive odors, fumes, gases, smoke,
dust, steam or vapors, or any loud or disturbing noise or vibrations to
originate in or emit from the Premises.
(b) Without limiting the generality of (a) above, the Premises shall
not be used for the treatment, storage, transportation to from, use or disposal
of toxic or hazardous wastes, materials, or substances, or any other substance
that is prohibited, limited or regulated by any governmental or
quasi-governmental authority or that, even if not so regulated, could or does
pose a hazard to the health and safety of the occupants of the Premises or
surrounding property.
(c) Tenant shall exercise due care in its use and occupancy of the
Premises and shall not commit or allow waste to be committed on any portion of
the Premises; and at the expiration or earlier termination of this Lease,
Tenant shall deliver the Premises to Landlord in as good condition as existed
on the date they were received by Tenant, ordinary wear and tear and acts of
God alone excepted.
(d) Tenant shall save Landlord harmless from any claim, liabilities,
penalties, fines, costs, expenses or damages resulting from the failure of
Tenant to comply with the provisions of this paragraph 6. This indemnification
shall survive the termination or expiration of this Lease.
7. TAXES.
Tenant shall pay any taxes, documentary stamps or assessments of any
nature imposed or assessed upon this Lease, Tenant's occupancy of the Premises
or Tenant's trade fixtures, equipment, machinery, inventory, merchandise or
other personal property located on the Premises and owned by or in the custody
of Tenant as promptly as all such taxes or assessments may become due and
payable without any delinquency, and shall pay all ad valorem property taxes
which are now or hereafter assessed upon the Premises during the term of this
Lease.
8. FIRE AND EXTENDED COVERAGE INSURANCE.
Tenant shall maintain and pay for fire insurance, with extended
coverage, covering the Premises in an amount equal to the replacement cost.
Landlord shall be named as the insured owner in such policy. Tenant shall
deliver such policy to Landlord prior to Commencement Date. Such policy shall
contain a provision that at least thirty (30) days' prior written notice of any
cancellation be give to Landlord; shall provide that all payments for losses
under such policy be made to Landlord; and shall provide that no act or
omission of Tenant shall be a basis for denial of Landlord's coverage under the
policy. Tenant shall not do or cause to be done or permit on the Premises
anything deemed extrahazardous on account of fire, and Tenant shall not use the
Premises in any manner which will cause an increase in the premium rate for any
insurance in effect on the Premises or a part of the Premises. If, because of
anything done, caused to be done, permitted or omitted by Tenant or its agents,
contractors, employees, invitees, licensees, servants, subcontractors or
subtenants, the premium rate for any kind of insurance in effect on the
Premises or any part of the Premises shall be raised, Tenant shall pay the
amount of any such increase in premium. Tenant shall maintain and pay for all
fire and extended coverage insurance on its contents in the Premises, including
trade fixtures, equipment, machinery, merchandise or other personal property
belonging to or in the custody of Tenant.
3
4
9. LANDLORD'S COVENANT TO REPAIR AND REPLACE.
(a) During the term of this Lease, Landlord shall be responsible only
for repairs or replacements to the roof, exterior walls, and structural members
(including foundation and subflooring of the Premises). Landlord's repairs and
replacements shall be made within a reasonable time, not to exceed one hundred
twenty (120) days after receiving written notice from Tenant of the need for
repairs. If Landlord cannot, using due diligence, complete its repairs within
one hundred twenty (120) days after receiving written notice from Tenant, then
(unless the need for such repairs or replacements is the result of the
negligence, misconduct or intentional acts or omissions of Tenant, its agents,
contractors, employees invitees, licensees, servants, subcontractors, or
subtenants, in which event Tenant shall not be entitled to terminate this
Lease) either party may terminate this Lease effective upon thirty (30) days'
prior written notice, without prejudice to Landlord's rights or receive payment
from Tenant for uninsured damages caused directly or indirectly by Tenant as
stated below. If the need for such repairs or replacements is the result of the
negligence, misconduct or intentional acts or omissions of Tenant, its agents,
contractors, employees, invitees, licensees, servants, subcontractors, or
subtenants, and the expense of such repairs or replacements are not fully
covered. Landlord's duty to repair or replace as prescribed in this paragraph
shall be Tenant's sole remedy and shall be in lieu of all other warranties or
guaranties of Landlord, express or implied.
(b) Landlord shall not be liable for any failure to make any repairs
or to perform any maintenance required of Landlord under this Lease unless such
failure shall persist for an unreasonable period of time after written notice
from Tenant setting forth the need for such repairs or replacements in
reasonable detail has been received by Landlord. Except as set forth in the
paragraph of this Lease entitled "Damage or Destruction of Premises", there
shall be no abatement of rent. There shall be no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, replacements, alterations or improvements to any portion
of the Premises, or to fixtures, appurtenances and equipment. To the extent
permitted under applicable law, Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
10. TENANT'S COVENANT TO REPAIR.
Tenant shall be responsible for the repair, replacement and
maintenance in good order and condition of all parts and components of the
Premises, other than those specified for repair, replacement and maintenance by
Landlord above, including, without limitation, the plumbing, wiring, electrical
systems, heating systems, air conditioning systems, glass and plate glass,
equipment and machinery constituting fixtures, unless such repairs or
replacements are required as a result of the negligence, misconduct or
intentional acts or omissions of Landlord, its agents, contractors, employees,
invitees, or subcontractors, in which event Landlord shall be responsible for
such repairs. At the end of the term of this Lease, Tenant shall return the
Premises to Landlord in as good condition as they were when received, excepting
only normal wear and tear, acts of God and repairs required to be made by
Landlord under this Lease. Tenant's duty to maintain the heating and air
conditioning systems shall specifically include the duty to perform the routine
and periodic maintenance and regular inspection of such heating and air
conditioning systems, the replacement of filters as recommended and the
performance of other recommended periodic servicing in accordance with
applicable manufacturer's standards and recommendations.
4
5
11. TRADE FIXTURES AND EQUIPMENT.
So long as Tenant is not in default under this Lease, any trade
fixtures installed in the Premises at Tenant's expense shall remain Tenant's
personal property and Tenant shall have the right at any time during the term
of this Lease to remove such trade fixtures. Upon removal of any trade
fixtures, Tenant shall immediately restore the Premises to substantially the
same condition as they were when received by Tenant, ordinary wear and tear and
acts of God alone excepted. Any trade fixtures not removed by Tenant at the
expiration or an earlier termination of the Lease shall become, at Landlord's
sole election, either (i) the property of Landlord, in which event Landlord
shall be entitled to handle and dispose of same in any manner Landlord deems
fit without any liability or obligation to Tenant or any other third party with
respect thereto, or (ii) subject to Landlord's removing such property from the
Premises and storing same, all at Tenant's expense and without any recourse
against Landlord with respect thereto. Without limiting the generality of the
foregoing, the following property shall in no event be deemed to be "trade
fixtures" and Tenant shall not remove any such property from the Premises under
any circumstances, regardless of whether installed by Landlord or Tenant: (a)
any air conditioning, air ventilating or heating fixtures or equipment; (b) any
lighting fixtures or equipment; (c) any carpeting or other permanent floor
coverings; (d) any paneling or other wall coverings; (e) plumbing fixtures and
equipment; or (f) permanent shelving.
12. UTILITIES.
Tenant shall pay for all utilities or services related to its use of
the Premises including without limitation electricity, gas, heat, water, sewer,
telephone and janitorial services.
13. DAMAGE OR DESTRUCTION OF PREMISES.
If the Premises are damages by fire or other casualty, but are
rendered untenantable for Tenant's business, either in whole or in part, Tenant
shall cause such damage to be repaired without unreasonable delay and the Rent
shall not be abated. If by reason of such casualty the Premises are rendered
untenantable for Tenant's business, either in whole or in part, Tenant shall
cause the damage to be repaired or replaced without unreasonable delay, and, in
the interim, the Rent shall be proportionately reduced as to such portion of
the Premises as is rendered untenantable. Any such abatement of rent shall not,
however, create an extension of the term of this Lease. Provided, however, if
by reason of such casualty, the Premises are rendered untenantable in some
material portion, and the amount of time required to repair the damage using
due diligence is in excess of one hundred eighty (180) days, then either party
shall have the right to terminate this Lease by giving written notice of
termination within sixty (60) days after the date of casualty, and the Rent
shall abate as of the date of such casualty in proportion to the part of the
Premises rendered untenantable. Tenant shall give Landlord immediate notice of
any fire or other casualty in the Premises.
14. GOVERNMENTAL ORDERS.
Tenant agrees, at its own expense, to comply promptly with all
requirements of any legally constituted public authority that may be in effect
from time to time made necessary by reason of Tenant's use or occupancy of the
Premises.
5
6
15. MUTUAL WAIVER OF SUBROGATION.
For the purpose of waiver of subrogation, the parties mutually release
and waive unto the other all rights to claim damages, costs or expenses for any
injury to persons (including death) or property caused by a casualty of any
type whatsoever in, on or about the Premises if the amount of such damage, cost
or expense has been paid to such damaged party under the terms of any policy of
insurance. All insurance policies carried with respect to this Lease, if
permitted under applicable law, shall contain a provision whereby the insurer
waives, prior to loss, all rights of subrogation against either Landlord or
Tenant.
16. SIGNS AND ADVERTISING.
Tenant may, at Tenant's sole cost and expense, install identification
signs on the Premises, subject to Landlord's approval as to size, location,
illumination, configuration, and materials of construction, such approval not
to be unreasonably withheld.
17. INDEMNIFICATION AND LIABILITY INSURANCE.
(a) Tenant shall indemnify and save Landlord harmless against any and
all claims, suits, demands, actions, fines, damages, and liabilities, and all
costs and expenses (including, without limitation, reasonable attorneys' fees)
arising out of injury to persons (including death) or property occurring in, on
or about, or arising out of the Premises if caused or occasioned wholly or in
part by any acts or omissions of Tenant, its agents, contractors, employees,
invitees, licensees, servants, subcontractors or subtenants, except if caused
by any acts or omissions on the part of Landlord. The non-prevailing party
shall also pay all costs, expenses and reasonable attorneys' fees that may be
incurred by the prevailing party in enforcing the agreements of this Lease,
whether incurred as a result of litigation or otherwise. Tenant shall give
Landlord immediate notice of any such happening causing injury to persons or
property.
(b) At all times during the term of this Lease, Tenant shall at its
own expense keep in force adequate public liability insurance in such amounts
(at a minimum) and with such companies as shall from time to time be acceptable
to Landlord (and to any lender having a mortgage interest in the Premises) and
naming Landlord as an additional insured. The amounts of such coverage, until
changed at Landlord's reasonable request, shall be not less than $500,000.00
with respect to bodily injury or death of one person, $1,000,000.00 with
respect to bodily injury or death of more than one person as a result of any
one accident and $100,000.00 with respect to damage to property. Tenant shall
first furnish to Landlord copies of policies or certificates of insurance
evidencing the required coverage prior to the Commencement Date and thereafter
prior to each policy renewal date. All policies required of Tenant under this
Lease shall contain a provision whereby the insurer is not allowed to cancel or
change materially the coverage without first giving thirty (30) days' written
notice to Landlord and shall contain specific coverage for contractual
liability.
18. LANDLORD'S RIGHT OF ENTRY.
Landlord, and those persons authorized by it, shall have the right to
enter the Premises at all reasonable times and upon reasonable notice for the
purposes of making repairs, making connections, installing utilities, providing
services to the Premises or for any other tenant, making inspections or showing
the same to prospective purchasers and/or lenders, as well as at any time in
6
7
the event of emergency involving possible injury to property or persons in or
around the Premises. Further, during the last six (6) months of the initial or
of any extended term, Landlord and those persons authorized by it shall have
the right at reasonable times and upon reasonable notice to show the Premises
to prospective tenants.
19. EMINENT DOMAIN.
If any substantial portion of the Premises is taken under the power of
eminent domain (including any conveyance made in lieu thereof) or if such
taking shall materially impair the normal operation of Tenant's business, then
either party shall have the right to terminate this Lease by giving written
notice of such termination within thirty (30) days after such taking. If
neither party elects to terminate this Lease, Landlord shall repair and restore
the Premises to the best possible tenantable condition, and the Rent shall be
proportionately and equitably reduced. All compensation awarded for any taking
(or the proceeds of a private sale in lieu thereof) shall be the property of
Landlord whether such award is for compensation for damages to the Landlord's
or Tenant's interest in the Premises, and Tenant assigns all of its interest in
any such award to Landlord; provided, however, Landlord shall not have any
interest in any separate award made to Tenant for loss of business, moving
expense or the taking of Tenant's trade fixtures or equipment if a separate
award for such items is made to Tenant and if such separate award does not
reduce the award to Landlord.
20. EVENTS OF DEFAULT AND REMEDIES.
(a) Upon the occurrence of any one or more of the following events
(the "Events of Default," any one an "Event of Default"), the party not in
default shall have the right to exercise any rights or remedies available in
this Lease, at law or in equity. Events of Default shall be:
(i) Tenant's failure to pay when due any rental or other sum
of money payable under this Lease and such failure is not cured within
ten (10) days after written notice of such failure; provided, however,
that Landlord shall not be required to give notice more than twice
during any twelve month period;
(ii) Failure by either party to perform any other of the
terms, covenants or conditions contained in this Lease if not remedied
within thirty (30) days after receipt of written notice of such
failure; or if such default cannot be remedied within such period,
such party does not within thirty (30) days after written notice of
such failure commence such act or acts as shall be necessary to remedy
the default and shall not thereafter complete such act or acts within
a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any
debtor proceedings, or file pursuant to any statute a petition in
bankruptcy or insolvency or for reorganization, or file a petition for
the appointment of a receiver or trustee for all or substantially all
of Tenant's assets and such petition or appointment shall not have
been set aside within sixty (60) days from the date of such petition
or appointment, or if Tenant makes an assignment for the benefit of
creditors, or petitions for or enters into an arrangement; or
(iv) Tenant vacates, abandons or fails to operate in the
Premises or any substantial part of the Premises or allows its
leasehold estate to be taken under any writ of execution and such writ
is not vacated or set aside within thirty (30) days.
7
8
(b) In addition to its other remedies, Landlord, upon an Event of
Default by Tenant, shall have the immediate right, after any applicable grace
period expressed in this Lease, to terminate and cancel this Lease and/or to
reenter and remove all persons and properties from the Premises and dispose of
such property as it deems fit, all without being guilty of trespass or being
liable for any damages caused. If Landlord reenters the Premises, it may either
terminate this Lease or, from time to time without terminating this Lease, make
such alterations and repairs as may be necessary or appropriate to relet the
Premises and relet the Premises upon such terms and conditions as Landlord
deems advisable without any responsibility on Landlord whatsoever to account to
Tenant for any surplus rents collected. No retaking of possession of the
Premises by Landlord shall be deemed as an election to terminate this Lease
unless a written notice of such intention is given by Landlord to Tenant at the
time of reentry; but, notwithstanding any such reentry or reletting without
termination, Landlord may at any time thereafter elect to terminate for such
previous default. In the event of an elected termination by Landlord, whether
before or after reentry, Landlord may recover from Tenant damages, including
the costs of recovering the Premises, and Tenant shall remain liable to
Landlord for the total Rent (which may at Landlord's election be accelerated to
be due and payable in full as of the Event of Default and recoverable as
damages in a lump sum) as would have been payable by Tenant under this Lease
for the remainder of the term less the rentals actually received from any
reletting or, at Landlord's election, less the reasonable rental value of the
Premises for the remainder of the term. If any rent owing under this Lease is
collected by or through an attorney, Tenant agrees to pay Landlord's reasonable
attorneys' fees to the extent allowed by applicable law.
21. SUBORDINATION.
This Lease is subject and subordinate to any and all mortgages or
deeds of trust now or hereafter placed on the property of which the Premises
are a part, and this clause shall be self-operative without any further
instrument necessary to effect such subordination; however, if requested by
Landlord, Tenant shall promptly execute and deliver to Landlord any such
certificate(s) as Landlord may reasonably request evidencing subordination of
this Lease to or the assignment of this Lease as additional security for such
mortgages or deeds of trust. Provided, however, in each case the holder of the
mortgage or deed of trust shall agree that this Lease shall not be divested by
foreclosure or other default proceedings so long as Tenant shall not be in
default under the terms of this Lease beyond any applicable cure period set
forth in this Lease. Tenant shall continue its obligations under this Lease in
full force and effect notwithstanding any such default proceedings under a
mortgage or deed of trust and shall attorn to the mortgagee, trustee or
beneficiary of such mortgage or deed of trust, and their successors or assigns,
and to the transferee under any foreclosure or default proceedings. Tenant
will, upon request by Landlord, execute and deliver to Landlord or to any other
person designated by Landlord, any instrument or instruments required to give
effect to the provisions of this paragraph.
22. ASSIGNING AND SUBLETTING.
Tenant shall not assign, sublet, mortgage, pledge or encumber this
Lease, the Premises, or any interest in the whole or in any portion, directly
or indirectly, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. If Tenant makes any such
assignment, sublease, mortgage, pledge or encumbrance with Landlord's written
consent, Tenant will still remain primarily liable for the performance of all
terms of this Lease. Landlord's consent to one assignment or sublease will not
waive the requirement of its consent to any subsequent assignment or sublease
as required in this Lease.
8
9
23. TRANSFER OF LANDLORD'S INTEREST.
If Landlord shall sell, assign or transfer all or any part of its
interest in the Premises or in this Lease to a successor-in-interest which
expressly assumes the obligations of Landlord under this Lease, then Landlord
shall be released or discharged from all covenants and obligations under this
Lease, and Tenant shall look solely to such successor-in-interest for
performance of all of Landlord's obligations. Tenant's obligations under this
Lease shall in no manner be affected by Landlord's sale, assignment, or
transfer of all or any part of such interests of Landlord, and Tenant shall
thereafter attorn and look solely to such successor-in-interest as the Landlord
under this Lease.
24. COVENANT OF QUIET ENJOYMENT.
Landlord represents that it has full right and authority to lease the
Premises, and Tenant shall peacefully and quietly hold and enjoy the Premises
for the full term of this Lease so long as Tenant does not default in the
performance of any of the terms of this Lease.
25. ESTOPPEL CERTIFICATES.
Within ten (10) days after a request by Landlord, Tenant shall deliver
a written estoppel certificate, in form supplied by or acceptable to Landlord,
certifying any facts that are then true with respect to this Lease, including
without limitation that this Lease is in full force and effect, that no default
exists on the part of Landlord or Tenant, that Tenant is in possession, that
Tenant has commenced the payment of rent, and that Tenant claims no defenses or
offsets with respect to payment of rentals under this Lease. Likewise, within
ten (10) days after a request by Tenant, Landlord shall deliver to Tenant a
similar estoppel certificate covering such matters as are reasonably required
by Tenant.
26. PROTECTION AGAINST LIENS.
Tenant shall do all things necessary to prevent the filing of any
mechanics', materialmen's or other types of liens whatsoever, against all or
any part of the Premises by reason of any claims made by, against, through or
under Tenant. If any such lien is filed against the Premises, Tenant shall
either cause the same to be discharged of record within twenty (20) days after
filing or, if Tenant in its discretion and in good faith determines that such
lien should be contested, it shall furnish such security as may be necessary to
prevent any foreclosure proceedings against the Premises during the pendency of
such contest. If Tenant shall fail to discharge such lien within said time
period or fail to furnish such security, then Landlord may at its election, in
addition to any other right or remedy available to it, discharge the lien by
paying the amount claimed to be due or by procuring the discharge by giving
security or in such other manner as may be allowed by law. If Landlord acts to
discharge or secure the lien, then Tenant shall immediately reimburse Landlord
for all sums paid and all costs and expenses (including reasonable attorneys'
fees) incurred by Landlord involving such lien, together with interest on the
total expenses and costs at the maximum lawful rate.
9
10
27. MEMORANDUM OF LEASE.
If requested by Tenant, Landlord shall execute a recordable Memorandum
or Short Form Lease, prepared at Tenant's expense, specifying the exact term of
this Lease and such other terms as the parties shall mutually determine.
28. FORCE MAJEURE.
In the event Landlord or Tenant shall be delayed, hindered or
prevented from the performance of any act required under this Lease, by reason
of governmental restrictions, scarcity of labor or materials, strikes, fire, or
any other reasons beyond its reasonable control, the performance of such act
shall be excused for the period of delay, and the period for performance of any
such act shall be extended as necessary to complete performance after the delay
period. However, the provisions of this paragraph shall in no way be applicable
to Tenant's obligations to pay Rent or any other sums, monies, costs, charges
or expenses required by this Lease.
29. REMEDIES CUMULATIVE -- NONWAIVER.
Unless otherwise specified in this Lease, no remedy of Landlord or
Tenant shall be considered exclusive of any other remedy, but each shall be
distinct, separate and cumulative with other available remedies. Each remedy
available under this Lease or at law or in equity may be exercised by Landlord
or Tenant from time to time as often as the need may arise. No course of
dealing between Landlord and Tenant or any delay or omission of Landlord or
Tenant in exercising any right arising from the other party's default shall
impair such right or be construed to be a waiver of a default.
30. HOLDING OVER.
If Tenant remains in possession of the Premises or any part after the
expiration of the term of this Lease, whether with or without Landlord's
acquiescence, Tenant shall be deemed only a tenant at will and there shall be
no renewal of this Lease without a written agreement signed by both parties
specifying such renewal. The "monthly" rental payable by Tenant during any such
tenancy at will period shall be one hundred fifty percent (150%) of the monthly
installments of Rent payable during the final year immediately preceding such
expiration. Tenant shall also remain liable for any and all damages, direct and
consequential, suffered by Landlord as a result of any holdover without
Landlord's unequivocal written acquiescence.
31. NOTICES.
Any notice allowed or required by this Lease shall be deemed to have
been sufficiently served if the same shall be in writing and placed in the
United States mail, via certified mail or registered mail, return receipt
requested, with proper postage prepaid and addressed as follows:
AS TO LANDLORD: Beale Street Realty, LLC
5015 A W. Wt Harris Blvd.
Charlotte, NC 28269
Attention: Joey Tillman
10
11
AS TO TENANT: High Performance Sports Marketing,
Inc. 149 Gasoline Alley Rd.
Mooresville, NC 28115
Attention: Randy Baker
The addresses of Landlord and Tenant and the party, if any, to whose
attention a notice or copy of same shall be directed may be changed or added
from time to time by either party giving notice to the other in the prescribed
manner.
32. LEASING COMMISSION.
Landlord and Tenant represent and warrant each to the other that they
have not dealt with any broker(s) or any other person claiming any entitlement
to any commission in connection with this transaction. Landlord and Tenant
agree to indemnify and save each other harmless from and against any and all
claims, suits, liabilities, costs, judgments and expenses, including reasonable
attorneys, fees, for any leasing commissions or other commissions, fees,
charges or payments resulting from or arising out of their respective actions
in connections with this Lease.
33. MISCELLANEOUS.
(a) Limitation of Landlord's Liability.
If Landlord shall fail to perform any covenant, term or condition of
this Lease upon Landlord's part to be performed, and, as a consequence of such
default, Tenant shall recover a money judgment against Landlord, such judgment
shall be satisfied solely out of the proceeds of sale received upon execution
of such judgment levied thereon against the right, title and interest of
Landlord in the Premises as the same may then be encumbered; and neither
Landlord nor, if Landlord be a partnership, any of the partners comprising
Landlord shall have any personal liability for any deficiency. It is understood
and agreed that in no event shall Tenant or any person claiming by or through
Tenant have the right to levy execution against any property of Landlord other
than its interest in the Premises as hereinbefore expressly provided.
(b) Nature and Extent of Agreement.
This Lease, together with all exhibits hereto, contains the complete
agreement of the parties concerning the subject matter, and there are no oral
or written understandings, representations, or agreements pertaining thereto
which have not been incorporated herein. This Lease creates only the
relationship of landlord and tenant between the parties, and nothing herein
shall impose upon either party any powers, obligations or restrictions not
expressed herein. This Lease shall be construed and governed by the laws of the
state in which the Premises are located. Whenever the singular or plural
number, or the masculine, feminine or neuter gender is used in this lease, it
shall equally include the other.
11
12
(c) Binding Effect.
This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, successors and assigns. No amendment
or modification to this Lease shall be binding upon Landlord unless same is in
writing.
(d) Captions and Headings.
The captions and headings in this Lease are for convenience and
reference only, and they shall in no way be held to explain, modify, or
construe the meaning of the terms of this Lease.
34. SEVERABILITY.
If any term or provision of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected, and each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by law
notwithstanding the invalidity of any other term or provision of this Lease.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed under seal pursuant to authority duly given as of the day and year
first above written.
"LANDLORD"
BEALE STREET REALTY, LLC
By: /s/ Randy C. Baker
--------------------------------------
Title: Manager
"TENANT"
HIGH PERFORMANCE SPORTS MARKETING, INC.
By: /s / Randy C. Baker
--------------------------------------
Title: Randy C. Baker, President
12
13
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
BEING all of Lots 2 and 3 of Lakeside Park (Phase IV) as shown on plot
recorded in Map Book 26 at page 106 of the Iredell County, North Carolina
Public Registry.
13