ORAL OR
WRITTEN, HERETOFORE MADE BETWEEN THE PARTIES HERETO ARE MERGED IN THIS LEASE,
WHICH, TOGETHER WITH THAT CERTAIN SIDE-LETTER AGREEMENT BETWEEN LANDLORD AND
TENANT DATED AS OF THE EFFECTIVE DATE (THE "SIDE-LETTER AGREEMENT"), FULLY AND
COMPLETELY EXPRESS THE AGREEMENT BETWEEN LANDLORD (AND ITS BENEFICIARIES, IF
ANY, AND THEIR AGENTS) AND TENANT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY, UPON THE EXECUTION AND DELIVERY OF THIS LEASE AND THE SIDE-LETTER
AGREEMENT BY LANDLORD AND TENANT, (A) THIS LEASE AND THE SIDE-LETTER AGREEMENT
SHALL SUPERSEDE ANY PREVIOUS DISCUSSIONS, AGREEMENTS AND/OR TERM OR COMMITMENT
LETTERS RELATING TO THIS LEASE AND THE SIDE-LETTER AGREEMENT OR THE TRANSACTION,
INCLUDING WITHOUT LIMITATION, THAT CERTAIN LETTER OF INTENT DATED MARCH 31,
2006, BETWEEN SKO GROUP HOLDING CORP., ON BEHALF OF TENANT, AND SPIRIT FINANCE
CORPORATION, ON BEHALF OF LANDLORD, (B) THE TERMS AND CONDITIONS OF THIS LEASE
AND THE SIDE-LETTER AGREEMENT SHALL CONTROL NOTWITHSTANDING THAT SUCH TERMS ARE
INCONSISTENT WITH OR VARY FROM THOSE SET FORTH IN ANY OF THE FOREGOING
AGREEMENTS, AND (C) THIS LEASE AND THE SIDE-LETTER AGREEMENT MAY ONLY BE AMENDED
BY A WRITTEN AGREEMENT EXECUTED BY LANDLORD AND TENANT. THE PROVISIONS OF THIS
SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.
31.10
FORCE MAJEURE. IF EITHER PARTY FAILS TO PERFORM TIMELY ANY OF THE
TERMS, COVENANTS AND CONDITIONS OF THIS LEASE ON SUCH PARTY'S PART TO BE
PERFORMED AND SUCH FAILURE IS DUE IN WHOLE OR IN PART TO ANY STRIKE, LOCKOUT,
CIVIL DISORDER, INABILITY TO PROCURE MATERIALS AT COMMERCIALLY REASONABLE RATES,
PROLONGED FAILURE OF POWER, RIOTS, INSURRECTIONS, WAR, FUEL SHORTAGES,
ACCIDENTS, CASUALTIES, ACTS OF GOD, ACTS CAUSED DIRECTLY OR INDIRECTLY BY THE
OTHER PARTY (OR SUCH OTHER PARTY'S AGENTS, EMPLOYEES, CONTRACTORS, LICENSEES OR
INVITEES) OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF SUCH PARTY
(EXPRESSLY EXCLUDING, HOWEVER, THE OBLIGATIONS IMPOSED UPON TENANT WITH RESPECT
TO BASE RENT AND ANY OTHER RENT TO BE PAID HEREUNDER) ("FORCE MAJEURE"), THEN
SUCH PARTY SHALL NOT BE DEEMED IN DEFAULT UNDER THIS LEASE AS A RESULT OF SUCH
FAILURE AND ANY TIME FOR PERFORMANCE BY SUCH PARTY PROVIDED FOR HEREIN SHALL BE
EXTENDED BY THE PERIOD OF DELAY RESULTING FROM SUCH CAUSE.
31.11
MEMORANDUM OF LEASE. THIS LEASE SHALL NOT BE RECORDED. HOWEVER, A
MEMORANDUM OF THIS LEASE IN THE FORM ATTACHED HERETO AS EXHIBIT G SHALL BE
EXECUTED, IN RECORDABLE FORM, BY BOTH PARTIES CONCURRENTLY HEREWITH AND MAY BE
RECORDED BY TENANT, AT TENANT'S EXPENSE, WITH THE OFFICIAL CHARGED WITH
RECORDATION DUTIES FOR ANY OF THE COUNTIES IN WHICH A PROPERTY LOCATION IS
LOCATED, WITH DIRECTIONS THAT IT BE RETURNED TO TENANT. IF, AND WHEN, AN
ORIGINAL MEMORANDUM OF LEASE IS RETURNED TO TENANT FOLLOWING RECORDING, TENANT
SHALL FURNISH A COPY OF SAME TO LANDLORD.
53
31.12
NO CONSTRUCTION AGAINST PREPARER. THIS LEASE HAS BEEN PREPARED BY
TENANT AND ITS PROFESSIONAL ADVISORS AND REVIEWED BY LANDLORD AND ITS
PROFESSIONAL ADVISORS. LANDLORD, TENANT AND THEIR SEPARATE ADVISORS BELIEVE THAT
THIS LEASE IS THE PRODUCT OF THEIR JOINT EFFORTS, THAT