ASSIGNMENT AND ASSUMPTION OF LEASE
Brownsville, TX
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
is made and entered into as of the 17th day of February,
2006, by and between XXXXX-XXXXX DEVELOPMENT GROUP, LTD., a
Texas limited partnership ("Assignor"), and AEI INCOME &
GROWTH FUND 25 LLC, a Delaware limited liability company
("Assignee").
RECITALS:
A. Assignor and Assignee are parties to that certain
Commercial Purchase and Sale Contract dated November 4,
2005, (the "Agreement"), pursuant to which Assignee is
acquiring from Assignor the real property, and improvements
located on such property, more particularly described on
EXHIBIT A attached hereto and incorporated herein by this
reference (the "Premises").
B. Pursuant to the terms of the Agreement, Assignor
desires to sell, assign, convey, transfer and set over to
Assignee and Assignee desires to assume all of Assignor's
interest in that certain Lease dated February 7, 2005 (the
"Lease") by and between Assignor and Advance Stores Company,
Incorporated (the "Tenant"), as evidenced by that certain
Memorandum of Lease dated _____________, 2006, which was
filed and recorded as of the date hereof as Volume _____,
Page ________ in the Official Public Records of Cameron
County, Texas, including all rents prepaid for any period
subsequent to the date of this Assignment, subject to the
terms and conditions set forth below.
C. Assignor is the Landlord under the Lease with full
right and title to assign the Lease, and the "Rent" (as
defined below) to Assignee as provided herein. The Lease is
in full force and effect and has not been modified or
amended. So far as is known to Assignor, there is no
default by Tenant under the Lease, and no Rent has been
waived, anticipated, discounted, compromised or released.
NOW, THEREFORE, in consideration of the Recitals, which
are hereby made a part hereof, for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, Assignor and Assignee
hereby agree as follows:
1. Assignor hereby irrevocably and unconditionally sells,
assigns, conveys, transfers and sets over unto Assignee, its
heirs, successors and assigns as of the date hereof (the
"Effective Date"), all of Assignor's right, title and
interest in, to and under: (i)
the Lease, and (ii) any and all rents prepaid as of the
Effective Date, held by Assignor in connection with the Lease
(the "Rent").
2. Except as otherwise set forth in Paragraph 4 hereof,
Assignee hereby assumes and shall be liable for any and all
liabilities, claims, obligations, losses and expenses,
including reasonable attorneys' fees arising in connection
with the Lease, which are actually incurred, and which arise
by virtue of acts or omissions occurring thereunder on or
after the Effective Date. Assignor shall indemnify and hold
Assignee harmless from any and all liabilities, claims,
obligations, losses and expenses, including reasonable
attorneys' fees arising in connection with the Lease which are
actually incurred, and which arise by virtue of acts or
omissions occurring thereunder, prior to the Effective Date.
Except as otherwise set forth in Paragraph 4 hereof, Assignee
shall indemnify and hold Assignor harmless from any and all
liabilities, claims, obligations, loss and expenses, including
reasonable attorneys' fees, arising in connection with the
Lease or as a result of Assignee's failure to fulfill the
landlord's duties and obligations accruing under the Lease on
or after the Effective Date. Assignee shall be entitled to
receive all income arising from the Lease from and after said
Effective Date. Assignor shall be entitled to receive all
income accruing from the Lease prior to the Effective Date.
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.
3. Assignor shall direct the Tenant and any successor tenant
under the Lease to pay to Assignee the Rent and all other
monetary obligations due or to become due under the Lease for
the period beginning on the Effective Date.
4. Notwithstanding anything contained herein or implied
hereby to the contrary, Assignor shall remain liable for the
performance of the obligations of the "Landlord" under the
Lease with respect to Landlord's obligations under Section 2
of the Lease.
5. This Assignment shall be governed by and construed in
accordance with the laws of the state in which the Property is
located.
6. All rights and obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit of
Assignor, Assignee and the heirs, successors and assigns of
each such party.
7. This Assignment may be executed in any number of
counterparts, each of which shall be effective only upon
delivery and thereafter shall be deemed an original, and all
of which shall be taken to be one and the same instrument, for
the same effect as if all parties hereto had signed the same
signature page. Any signature page of this Assignment may be
detached from any counterpart of this Assignment without
impairing the legal effect of any signatures thereon and may
be attached to another counterpart of this Agreement identical
in form hereto but having attached to it one or more
additional signature pages.
8. Whenever the context so requires in this Assignment, all
words used in the singular shall be construed to have been
used in the plural (and vice versa), each gender shall be
construed to include any other genders, and the word "person"
shall be construed to include a natural person, a corporation,
a firm, a partnership, a joint venture, a trust, an estate or
any other entity.
IN WITNESS WHEREOF, Assignor and Assignee have executed
this Assignment effective as of the day and year first above
written.
ASSIGNOR:XXXXX-XXXXX DEVELOPMENT GROUP, LTD.,
a Texas limited partnership
By: DSL Management, L.L.C.,
a Texas limited liability company,
its General Partner
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Its: President
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXXX )
This instrument was acknowledged before me on the 16th
day of February 2006, by XXXX XXXXX, acting in his capacity as
President of DSL Management, L.L.C., General Partner of Xxxxx-
Xxxxx Development Group, Ltd., A Texas Limited Partnership,
and on behalf of said Partnership.
[Notarial Seal]
/s/ Xxxxxxx X Xxxxx
Notary Public, State of Texas
My Commission Expires:
[SIGNATURES TO CONTINUE ON FOLLOWING PAGE]
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
Xxxxxx X. Xxxxxxx, its President
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The foregoing was acknowledged before me this ____ day of
February, 2006, 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/ Xxxxxxxx X Xxxxxxxx
Print Name: Xxxxxxxx X Xxxxxxxx
My Commission Expires: 01/31/2010
EXHIBIT A
Legal Description
LOT TWO (2), BLOCK (1), M-L 802 AND 48 SUBDIVISION, A
SUBDIVISION IN THE CITY OF BROWNSVILLE, CAMERON COUNTY, TEXAS,
ACCORDING TO THE MAP THEREOF RECORDED IN CABINET 1, SLOT 0000-
X XXX XXXXXXX XX XXXXXXX XXXXXX, XXXXX and also known as 0000
Xxxx Xxxxx Xxxxxx Xxxxxxxxx
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made as of
February 7th, 2005 (the "Commencement Date"), between XXXXX-
XXXXX DEVELOPMENT GROUP, LTD., a Texas limited partnership
("Landlord"); and ADVANCE STORES COMPANY, INCORPORATED, a
Virginia corporation ("Tenant").
In consideration of their mutual covenants and other
valuable consideration, the adequacy and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1) LEASED PREMISES. Subject to and in accordance with the
terms hereof, Landlord hereby leases to Tenant, and Tenant
leases from Landlord, the premises situated at Xxxxxxx 000,
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxx consisting of approximately
0.815 acres which is outlined in red on a survey dated August
26, 2004, prepared by Ambiotec Group (the "Survey"), which
Survey is attached hereto as Exhibit "A" and is incorporated
herein by this reference (together with all appurtenances,
rights, interest, easements and privileges in any way
pertaining thereto, the "Land"), together with the
improvements to be constructed on the Land by Landlord
pursuant to this Lease, such improvements to consist of a
building space of approximately 7,000 square feet of gross
leasable floor area (the "Building") and the surrounding
parking, landscape and sidewalk areas (including any and all
striping of such parking areas) (collectively, the "Other
Improvements"), all as identified on the site plan attached
hereto as Exhibit "B," Attachment 1 and incorporated herein by
this reference (the "Site Plan"). The Land, the Building and
the Other Improvements, together with the "Tenant's
Improvements" (as hereinafter defined), if any, shall
hereinafter be collectively referred to as the "Leased
Premises."
2) CONSTRUCTION OF LEASED PREMISES. Landlord shall, at its
sole cost and expense, perform the "Work" (as defined in the
Construction Provisions) in accordance with the construction
provisions attached hereto as Exhibit "B" (the "Construction
Provisions").
3) USE.
a) Tenant may use the Leased Premises for the display,
storage and sale of automotive parts, accessories,
supplies and/or maintenance items or for any and all
other lawful uses; provided, however, in no event shall
the Leased Premises be used for any of the following
(collectively, the "Prohibited Uses"):
i) trailer court, junk yard, waste material collection
facility, or auction house;
ii) establishments providing adult-type entertainment or
displays of a variety involving or depicting nudity or lewd
acts;
iii) a massage parlor; a funeral home;
v) a facility for the sale of paraphernalia for use
with illicit drugs;
vi) a facility for the sale or display of pornographic
(as determined by community standards for the area in
which the Leased Premises is located) material;
vii) overnight parking of campers, mobile homes, boats or
tractor trailers, except for such trailers as are a part
of Tenant's business operations;
viii) any exploration, drilling or similar operation
of any kind;
ix) dance hall, bar, restaurant, off-track betting
business, billiard or pool hall, bingo or similar games
of chance, game arcade, nightclub or flea market;
x) any use which involves the raising, breeding or
keeping of any animals or poultry;
xi) any dangerous or unsafe uses;
xii) any industrial uses, including, without limitation,
any manufacturing, smelting, rendering, brewing,
refining, chemical manufacturing or processing, or other
manufacturing uses;
xiii) any mining or mineral exploration or
development except by non-surface means;
xiv) drug or alcohol rehabilitation or treatment center;
xv) abortion clinic; or
xvi) any place of religious worship such as a church,
temple, synagogue, mosque, or the like.
b) Tenant may operate its business at the Leased Premises
under any name of its choosing or permitted by law and
may set its hours and days of operation, if any, in its
sole discretion. Notwithstanding anything contained
herein to the contrary, (i) nothing in this Lease shall
constitute an agreement of Tenant (express or implied),
directly or indirectly, to open or operate a business in
the Leased Premises, the rentals received hereunder
constituting the entire consideration for Landlord's
entering into this Lease, and (ii) Tenant may, at any
time during the "Term" (as hereinafter defined), without
Landlord's consent, cease business operations at and/or
remove any and all of Tenant's "Personal Property" (as
hereinafter defined) from the Leased Premises.
4) TERM/EXTENSIONS.
a) The initial term of this Lease (the "Initial Term")
shall commence on the Commencement Date and shall
terminate on the last day of the month in which occurs
the fifteenth (15th) annual anniversary of the "Rent
Commencement Date" (as hereinafter defined). The Rent
Commencement Date shall be the earlier to occur of (i)
the date that is forty-five (45) days following the
"Completion Date" (as defined in the Construction
Provisions) or (ii) the date on which Tenant opens for
business to the public at the Leased Premises.
Notwithstanding the foregoing, in the event the following
conditions have not been satisfied prior to such Rent
Commencement Date, then Tenant may, at Tenant's option,
pay no Basic Rent or any other charges due under this
Lease to Landlord until such time as such conditions have
been satisfied or waived (whereupon Tenant shall pay all
accrued Basic Rent and/or other charges due hereunder at
the time of such satisfaction or waiver):
(i) Landlord has delivered to Tenant all applicable
subordination, non-disturbance and attornment agreements
executed by any and all Mortgagees and/or Ground Lessors with
respect to the Leased Premises in the form attached to this
Lease as Exhibit "C"; and
(ii) Landlord has delivered to Tenant, and Tenant has
approved, those certain easement agreements, declarations,
covenants, restrictions, rules, regulations and other
documents or agreements affecting the Leased Premises set
forth in Exhibit "H" as Permitted Encumbrances, and Landlord
has placed of record and delivered a certified copy to Tenant
of all such agreements and documents.
(iii) Landlord has delivered to Tenant a certified copy of
the Easement to be recorded described in Exhibit "H" in the
form of Exhibit "H-1" attached hereto.
Landlord and Tenant shall confirm the Rent Commencement
Date by a supplemental commencement date agreement, the
form of which agreement is attached hereto as Exhibit
"D". The period of time from the Commencement Date until
the Rent Commencement Date shall hereinafter be referred
to as the "Construction Term."
b) In addition to the Initial Term, Tenant shall have the
option (each such right referred to herein as a "Renewal
Option") to renew and extend this Lease for three (3)
consecutive five (5) year periods (each such period
referred to as an "Option Period" and collectively as the
"Option Periods") immediately following the Initial Term,
during which Option Period(s) all the provisions,
conditions and covenants of this Lease shall continue in
full force and effect except that "Basic Rent" (as
hereinafter defined) payable for the Option Period(s)
shall be as set forth in Section 5(a) of this Lease. Each
Renewal Option shall be deemed exercised automatically
unless Tenant shall give Landlord written notice of its
election not to exercise any such Renewal Option at least
one hundred eighty (180) days prior to the expiration of
the Initial Term or any then-current Option Period, as
applicable.
c) From and after the date on which a Renewal Option is
exercised, references to the words "Term" in this Lease
shall include the Option Period(s) by which the Term
shall have been extended. In the event this Lease is
canceled or terminated, the expiration date of this Lease
shall be that date on which this Lease is canceled or
terminated. The term "Lease Year" shall mean each
successive period of twelve (12) consecutive calendar
months, commencing on the anniversary of the Rent
Commencement Date, except that the first Lease Year shall
commence on the Rent Commencement Date.
5) RENT.
a) Basic Rent. Commencing on the Rent Commencement Date,
during each Lease Year, Tenant shall pay Landlord the
following monthly sums ("Basic Rent") which shall be payable,
in advance, on the first day of each month:
Initial Term:
Years 1-10 $9,164.42 per month
Years 11-15 $10,080.86 per month
First Option Period $10,584.90 per month
Second Option Period $11,114.15 per month
Third Option Period $11,669.85 per month
If the Rent Commencement Date shall be a day other than
the first day of a month, the amount of Basic Rent shall
be prorated for the balance of such month on a per diem
basis, and the prorated Basic Rent for such month shall
be due and payable on the Rent Commencement Date.
b) Tenant shall have no obligation to pay Basic Rent or any
other charges due under this Lease to any party other than
Landlord unless and until Tenant has received notice of a
change given pursuant to Section 24 below. In the event such
notice is given in connection with a transfer or sale of
Landlord's interest in the Leased Premises and/or this Lease,
such notice shall not be binding upon Tenant until Tenant has
received (i) a copy of the instrument assigning or
transferring Landlord's interest, (ii) a letter specifying the
addresses to which rent and notices are to be forwarded to
such assignee or transferee and (ii) a W-9 form executed by
the assignee or transferee. The instrument assigning or
transferring Landlord's interest shall evidence the fact that
such assignee or transferee has assumed all of Landlord's
obligations under this Lease and has acquired sufficient title
to the Leased Premises to enable such assignee or transferee
to perform such obligations; provided, however, this provision
shall not be applicable to any transfer given as security for
a loan, and no transfer shall release a prior Landlord from
any liability hereunder that accrued during the period of such
prior Landlord's ownership of the Leased Premises.
a) Landlord warrants and represents that, as of the
Commencement Date and during the Term:
i) Landlord (1) is a limited partnership duly formed,
validly existing and in good standing under the law of the
State of Texas, (2) is qualified to do business in and is in
good standing under the laws of the State of Texas in which
the Land is located (the "State"), and (3) has full right and
power to execute and perform this Lease and to grant the
estate demised herein; Landlord's General Partner, DSL
Management, L.L.C., a Texas limited liability company
("General Partner"), who is acting as its signatory for this
Lease, is duly authorized and empowered to act for and on
behalf of the General Partner, and this Lease, including its
execution by Landlord, is enforceable and binding upon
Landlord and has been authorized by all requisite action on
behalf of the General Partner. General Partner (i) is a
limited liability company duly formed, validly existing and
in good standing under the law of the State of Texas, (2) is
qualified to do business in and is in good standing under the
laws of the State of Texas in which the Land is located (the
"State"), and (3) has full right and power to execute and
perform this Lease and to grant the estate demised herein;
General Partner's President, who is acting as General
Partner's signatory for this Lease is duly authorized and
empowered to act for and on behalf of General Partner. Upon
request by Tenant, Landlord shall furnish to Tenant (i)
written evidence of Landlord's authority to complete this
transaction and empowering those executing documents on
Landlord's behalf to do so and (ii) Landlord's certificate of
good standing in the State;
ii) Landlord is either currently the owner of the Land in
fee simple absolute or will become such owner; this Lease is
and shall be a first lien on the Leased Premises subject only
to any "Mortgage" (as hereinafter defined) or "Ground Lease"
(as hereinafter defined) to which this Lease may be
subordinated as set forth in Section 20 below; and neither
the "Permitted Encumbrances" (as hereinafter defined) nor any
other encumbrances grant any other party the rights to use
any parking spaces located on the Leased Premises;
iii) Neither the execution and delivery by Landlord of this
Lease nor the performance by Landlord of the terms hereof
will (x) conflict with or violate any other agreement or
instrument or any writ, order or decree to which Landlord is
a party or by which Landlord is bound or (y) be precluded by
or cause a breach of any agreement, mortgage, contract or
other instrument or document to which Landlord is a party or
which encumbers or otherwise adversely affects the Leased
Premises; and
iv) This Lease represents the valid, binding obligation of
Landlord, enforceable against Landlord in accordance with its
terms.
b) Landlord warrants and represents that, as of the
Commencement Date:
i) The Leased Premises is presently, or will be prior to
commencement of the Work, properly subdivided in compliance
with all applicable laws and regulations and constitutes a tax
parcel separate from any other real property; the zoning
classification of, and all other governmental regulations
pertaining to, the Leased Premises shall permit the
construction by Landlord as provided by this Lease and the use
of the Leased Premises by Tenant in accordance with the terms
of this Lease; and the number of parking spaces totaling
thirty-six (36) spaces as shown on the Site Plan shall be
provided in the parking area;
ii) Landlord's fee simple interest in the Leased Premises is
free and clear of any mortgages, deeds, encumbrances,
declarations, easements, agreements, leases, tenancies,
restrictions, rules or regulations which affect or restrict or
could affect or restrict the use or intended use of the Leased
Premises by Tenant, its employees, customers, invitees,
successors and/or assigns, except those matters set forth on
Exhibit "H" attached hereto and entitled "Permitted
Encumbrances" (the "Permitted Encumbrances"); and
iii) The execution and delivery of this Lease by Landlord has
been duly authorized by all required corporate action.
c) Tenant represents and warrants to Landlord that:
i) Tenant (1) is a corporation duly formed, validly existing
and in good standing under the law of the Commonwealth of
Virginia and (2) is qualified to do business in and is in good
standing under the laws of the State;
ii) Neither the execution by Tenant of this Lease nor the
performance by Tenant of the terms hereof will conflict with
or violate any other agreement or instrument or any writ,
order or decree to which Tenant is a party or by which Tenant
is bound; and
iii) The execution and delivery of this Lease by Tenant has
been duly authorized by all required corporate action, and
this Lease represents the valid, binding obligation of Tenant,
enforceable against Tenant in accordance with its terms.
7) TENANT'S FURNISHINGS, FIXTURES, EQUIPMENT AND OTHER
PERSONAL PROPERTY. Tenant, at its sole cost and expense, may
supply and install anywhere in or on the Leased Premises any
furnishings, fixtures, equipment and/or other personal
property, including a satellite dish and any necessary cables
or supporting equipment (collectively, "Personal Property"),
which it deems necessary for its use of the Leased Premises;
provided, however, that Tenant shall repair, at its own
expense, any damage to the Leased Premises occasioned by such
installation. Landlord and Tenant recognize that Tenant may
commence the installation of its Personal Property prior to
the Completion Date, as defined in the Construction
Provisions. Any
such Personal Property supplied and installed in the Leased
Premises, except that which is permanently attached, shall be
and remain the property of Tenant. Such delivery, installation
and placement of Personal Property in the Leased Premises by
Tenant shall not constitute final acceptance or actual
possession of the Leased Premises by Tenant, and shall not
obligate Tenant to pay Basic Rent or other charges prior to
the Rent Commencement Date set forth in Section 4(b) of this
Lease. It is agreed by Landlord and Tenant that upon and
during delivery of such Personal Property by Tenant, Landlord
shall provide Tenant with a secure structure and access to the
Leased Premises.
Any damage to the Leased Premises occasioned by the removal of
such Personal Property shall be repaired by Tenant at its sole
cost and expense, unless such damage is caused by Landlord's
negligence, intentional misconduct, or willful acts, or the
negligence, intentional misconduct, or willful acts of
Landlord's agents or contractors, in which event such damage
shall be repaired by Landlord at its sole cost and expense.
Risk of loss as to such Personal Property shall remain with
Tenant at all times prior to and during the Terra Tenant shall
indemnify, defend, and save Landlord harmless from and against
all claims, suits, liabilities and expenses, including
reasonable attorneys' fees, for damage or injury to persons or
property directly resulting from Tenant's negligent
installation of Personal Property in the Leased Premises,
except to the extent that such claim, suit, liability or
expense is caused, in whole or in part, by Landlord's
negligence, intentional misconduct, or willful acts, or the
negligence, intentional misconduct, or willful acts of
Landlord's employees, agents or contractors.
8) TENANT'S ALTERATIONS AND SIGNS.
a) Tenant shall have the right, but not the obligation,
at its sole cost and expense and at any time, without
Landlord's consent, to make non-structural improvements,
alterations and replacements in, on or to the Leased
Premises. Tenant agrees that such improvements,
alterations, additions and replacements will (i) be made
in a good and workmanlike manner by licensed contractors
and (ii) comply with all applicable laws, and Tenant
shall defend, indemnify and hold Landlord harmless from
any and all costs, damages and expenses resulting
therefrom, except to the extent that such costs, damages
or expenses are caused by Landlord's negligence,
intentional misconduct, or acts or omissions, or the
negligence, intentional misconduct, or acts or omissions
of Landlord's agents or contractors. Tenant shall not
make any structural improvements, alterations, additions
or replacements without first obtaining Landlord's
written consent thereto, which consent shall not be
unreasonably withheld, conditioned or delayed. If
Landlord's consent is required and if plans and
specifications for such work must be prepared in order
for Tenant to obtain a building permit for such work,
then conceptual plans and specifications for such work
shall be provided to Landlord prior to commencement of
any such work. Landlord shall be deemed to have consented
to such work if written notice of disapproval, with
reasons specified, is not received by Tenant within
fifteen (15) days following Tenant's delivery of such
plans and specifications to Landlord. Without cost or
expense to Landlord, Landlord shall cooperate with Tenant
in Tenant's efforts to obtain any and all licenses,
building permits, certificates of occupancy or other
governmental approvals which may be required in
connection with any such improvements, alterations,
additions and replacements, and Landlord shall execute,
acknowledge and deliver any documents reasonably required
in furtherance of such purposes.
b) Tenant may erect, at its cost and in its sole discretion,
an announcement sign on the Leased Premises, the location,
size and style of which shall be in Tenant's sole and absolute
discretion, announcing Tenant's future business at the Leased
Premises. Tenant may, at its cost and in its sole discretion,
but subject to compliance with all applicable governmental
regulations, install (1) any and all exterior signs on the
exterior walls and/or roof of the Leased Premises as it deems
necessary and (2) any and all pylon or monument signs on the
Leased Premises as it deems necessary. Tenant's ability to
erect at the Leased Premises no less than 133.66 square feet
of exterior signage in the color(s), size(s) and location(s)
shown on Exhibit B, Attachment II (the "Elevations") and
Exhibit "I-1" and no less than a 147 square foot pylon sign in
the color(s), size(s) and location(s) shown in Exhibit "I-2"
attached hereto and on the Site Plan is a condition precedent
to its obligations under this Lease and, in that regard,
Tenant shall apply for all necessary governmental permits for
its desired signage within a reasonable period of time after
the Commencement Date of this Lease and shall reasonably
diligently pursue such application thereafter. In the event
Tenant does not receive all necessary governmental permits for
Tenant's desired signage by the date Landlord has received the
"Approvals" (as defined in Section 3(a) of the Construction
Provisions), Tenant, at its option, may terminate this Lease
by giving written notice to Landlord. If local laws do not
permit the signage that Tenant desires to erect, then Tenant
may, at its expense, seek a sign code variance to allow
Tenant's signage. Landlord shall execute any documents, forms
or applications necessary for Tenant to obtain all necessary
zoning approvals, variances or special exceptions for any and
all of Tenant's signage and shall promptly execute all
documents required in connection therewith. Notwithstanding
anything contained herein to the contrary, Tenant shall be
entitled, without Landlord's consent, but subject to
compliance with all applicable governmental regulations, to
replace any and all of its signs with signage consistent with
Tenant's then-current prototypical sign plans. In the event of
an assignment or subletting as a result of which Tenant is no
longer occupying any portion of the Leased Premises, Tenant's
signs may be replaced by signs identifying the appropriate
assignee or subtenant, provided that the specific design of
such signage shall be subject to Landlord's consent, which
consent shall not be unreasonably withheld, conditioned or
delayed.
c) Any alterations made by Tenant to the Leased Premises
shall hereinafter be referred to as the "Tenant's
Improvements." Except for Tenant's Personal Property, the
Tenant's Improvements that are permanently attached or affixed
to the Leased Premises shall become the property of Landlord
upon the expiration of this Lease.
9) ASSIGNMENT AND SUBLEASING. Tenant shall have the right to
sublet, assign, transfer, reassign and grant concessions or
licenses (a "Transfer") in all or any part of the Leased
Premises and any of Tenant's rights and obligations under this
Lease, without Landlord's consent. In the event of such a
Transfer, Tenant shall remain liable for all of Tenant's
obligations to Landlord arising hereunder so long as this
Lease is not changed, modified or amended in any respect by
Landlord and any transferee. Should Tenant wish to be relieved
of its
obligations hereunder upon a Transfer, Landlord's prior
consent to a Transfer shall be required, which consent shall
not be unreasonably withheld, conditioned or delayed.
Notwithstanding the immediately preceding sentence, in the
event any assignee hereunder or assignee's guarantor
subsequent to an assignment has a net worth calculated in
accordance with generally accepted accounting principles equal
to or greater than the net worth of Advance Stores Company,
Incorporated, as of the end of the fiscal year in which the
Commencement Date of this Lease occurs, Landlord's consent to
such assignment shall not be necessary, and Tenant shall
thereafter automatically (and without any action by Landlord)
be relieved of any further obligations under this Lease.
Landlord acknowledges and agrees that Landlord's conditioning
of the granting of its consent upon obtaining (i) a material
amendment or modification to the terms of this Lease or (ii)
monetary compensation, shall be deemed unreasonable. In the
event Tenant shall be reorganized, merged or consolidated with
any other corporation, limited liability company or other
business entity, or shall sell all or substantially all of its
assets, any resulting or surviving corporation, limited
liability company or other business entity, or any other
person, which shall, as a result of such reorganization,
merger, consolidation or sale, succeed to substantially all of
the assets or the business of Tenant, and which shall assume
all of the liabilities and obligations of Tenant under this
Lease, shall automatically and without the necessity of
further assignment or any other act become and be Tenant under
this Lease in accordance with and subject to all of the terms,
provisions and conditions hereof Tenant shall give Landlord
notice of any Transfer, such notice to include a copy of the
original instrument evidencing such Transfer; provided,
however, that Tenant's failure to provide such notice shall
not be an "Event of Default" (as hereinafter defined) by
Tenant hereunder or give Landlord the right to exercise any
right or remedy against Tenant hereunder.
10) MAINTENANCE AND REPAIRS:
a) Subject to Landlord's repair and restoration
obligations described in Sections 10(b) and 14 below,
Tenant shall, at its cost, during the Term (excluding the
Construction Term):
i) Maintain, repair and/or replace, in good condition,
ordinary wear and tear excepted, each and every portion of the
Leased Premises (including, without limitation, all exterior
signs related to safety required by law [including handicapped
parking signs and fire lane signs] and the exterior of the
Building) except for any items the maintenance, repair or
replacement of which are Landlord's responsibility hereunder;
and
ii) Keep the Leased Premises in a reasonably clean and neat
condition and not permit the accumulation of any trash,
rubbish or garbage (except as accumulated in containers
awaiting collection or disposal) in, on or about any part of
the Leased Premises and arrange for collection or disposal of
accumulated trash, rubbish and garbage from the Leased
Premises.
b) Notwithstanding the provisions of Section 10(a)
above and anything contained herein to the contrary,
Landlord shall be responsible, at its sole cost and
expense, for the
following maintenance, repairs and/or replacements to the
Leased Premises during the Term:
i) any and all maintenance, repairs and/or replacements
to the slab, foundation and structure of the Leased
Premises (including, without limitation, repairing any
cracks or other damage thereto, but specifically
excluding painting of the exterior walls unless painting
is required as a result of Landlord's failure to
maintain, repair and/or replace the slab, foundation or
structure as provided herein);
ii) any and all maintenance, repairs and/or replacements
to the parking area of the Leased Premises in the event
that Landlord fails to deliver the certificate as to the
parking area of the Leased Premises as required by
Section 2(c) of the Construction Provisions or fails to
construct the parking area in accordance with the design
standards therefor as required by Section 2(b) of the
Construction Provisions;
iii) any and all maintenance, repairs and/or replacements
to the roof of the Leased Premises, in the event that
Landlord fails to deliver the certificates and warranties
as to the roof of the Leased Premises required by Section
2(e) of the Construction Provisions;
iv) any and all maintenance, repairs and/or replacements
to the heating, ventilation and air-conditioning system
of the Leased Premises (the "HVAC"), in the event that
Landlord fails to deliver the certificates as to the HVAC
as required by Section 2(0 of the Construction
Provisions;
v) any and all maintenance, repairs or replacements
which become necessary as a result of Landlord's
negligence, intentional misconduct, or acts or omissions,
or the negligence, intentional misconduct, or acts or
omissions of Landlord's agents or contractors; and
vi) any and all maintenance, repairs and/or replacements
to the Leased Premises which (i) are required during the
first Lease Year of the Term due to the original
construction of the Leased Premises or (ii) are made
necessary by reason of defects in the workmanship or
materials used in the construction of any portion of the
Leased Premises (except for any portion of the Leased
Premises that was constructed by Tenant) or are due to
the settling of the Leased Premises.
c) With regard to those items which are Landlord's
responsibility under Section 10(b) above, if an emergency
situation occurs, Tenant shall make all reasonable
efforts to contact Landlord by telephone or facsimile to
advise Landlord of the need for such maintenance, repair
or replacement. If after making reasonable efforts to
contact Landlord, either Tenant is unable to contact
Landlord or if Tenant succeeds in contacting Landlord,
and Landlord fails to undertake action to correct the
emergency situation within twenty-four (24) hours, Tenant
may perform such maintenance, repair or
replacement as Tenant deems necessary. Within thirty (30)
days after written notice from Tenant (accompanied by an
invoice or other reasonable evidence of the costs to be
reimbursed), Landlord shall pay Tenant an amount equal to
the actual, out-of-pocket costs incurred by Tenant in the
performance of such maintenance, repair and/or
replacement. If Landlord fails to pay to Tenant such
costs within such thirty (30) day period, then Tenant may
deduct the amount of such costs from Basic Rent and any
other charges owed by Tenant to Landlord. For purposes of
this Section 10(c), an "emergency situation" means a
condition or state of facts which if not corrected would
result in further damage to the Leased Premises or its
contents or personal injury or damage to any other
property or which would in any way prevent Tenant from
conducting its business at the Leased Premises in its
customary manner. The provisions of this Section 10(c)
shall control over any conflicting provisions contained
in this Lease.
d) Landlord shall protect, defend, indemnify and hold
Tenant harmless from all losses, damages, liabilities,
costs and expenses (including reasonable attorneys' fees
and court costs) incurred for work, labor, repairs,
alterations, improvements, services and/or materials
supplied to the Leased Premises by or at the direction of
Landlord, or which may occur, result from or arise out of
the failure of Landlord during the Term to make properly
any required repairs or perform any maintenance which is
the responsibility of Landlord under this Lease, except
to the extent that such losses, damages, liabilities,
costs and/or expenses arise out of Tenant's negligence,
intentional misconduct, or acts or omissions, or the
negligence, intentional misconduct, or acts or omissions
of Tenant's agents or contractors. Tenant shall protect,
defend, indemnify and hold Landlord harmless from all
losses, damages, liabilities, costs and expenses
(including reasonable attorneys' fees and court costs)
incurred for work, labor, repairs, alterations,
improvements, services and/or materials supplied to the
Leased Premises by or at the direction of Tenant, or
which may occur, result from or arise out of the failure
of Tenant during the Term to make properly any required
repairs or perform any maintenance which is the
responsibility of Tenant under this Lease, except to the
extent that such losses, damages, liabilities, costs
and/or expenses arise out of Landlord's negligence,
intentional misconduct, or acts or omissions, or the
negligence, intentional misconduct, or acts or omissions
of Landlord's agents or contractors.
e) Landlord hereby assigns to Tenant all of Landlord's
interest in, and rights under (including rights to
enforce), all warranties and guaranties received in
connection with the Work or any other work, maintenance,
repairs and/or replacements performed by, or at the
direction Landlord in, on or at the Leased Premises;
provided, however, that Landlord shall retain such
interest in and rights under such warranties and
guaranties as are necessary or desirable for Landlord to
complete any maintenance, repairs and/or replacements to
the Leased Premises which (i) are required during the
first Lease Year of the Term due to the original
construction of the Leased Premises or (ii) are made
necessary by reason of defects in the workmanship or
materials used in the construction of any portion of the
Leased Premises (except for any portion of the Leased
Premises that was constructed by Tenant) or are due to
the settling of the Leased Premises, as provided in
Section 10(b)(vi) above.
11) UTILITIES. Tenant agrees to pay the charges and all
required deposits for all utility services furnished to and
used by Tenant in the Leased Premises during the Term directly
to the utility companies providing such services, excluding
any and all connection fees, hook-up charges, impact fees and
other similar costs related to the initial start-up expenses
for providing such services to the Leased Premises, all of
which costs and expenses shall be paid by Landlord. Subject to
applicable law, Tenant shall be entitled to select the utility
service provider which shall provide water, electric, gas,
cable and telecommunication services to the Leased Premises.
12) INSURANCE: INDEMNIFICATION.
a) During the Term (excluding the Construction Term), Tenant
shall, at its sole cost and expense, obtain and maintain
property insurance covering the Leased Premises in an amount
not less than the full replacement cost thereof, with such
deductibles and retentions as determined by Tenant in its sole
and absolute discretion. Such insurance shall be provided by
companies authorized to do business in the State.
b) During the Term (excluding the Construction Term) Tenant
shall maintain with respect to the Leased Premises a policy of
commercial general liability insurance, which insurance shall
stipulate limits of liability of not less than $2,000,000 each
occurrence, single limit bodily injury and/or property damage
combined (with such deductibles and retentions as determined
by Tenant in its sole and absolute discretion), and shall be
provided by companies authorized to do business in the State.
c) Tenant shall, within fifteen (15) days after receipt of
written request therefor by Landlord, provide Landlord with
(i) evidence of such property insurance and (ii) a certificate
of such commercial general liability insurance, each naming
Landlord and Landlord's Mortgagee as additional insureds or
loss payees, as applicable, and providing that the applicable
coverage shall not be cancelled without thirty (30) days
notice to the holder of such evidence or certificate, as
applicable.
d) Notwithstanding anything to the contrary contained
herein, Tenant shall have the right to self-insure against any
of the risks or portions thereof set forth in this Section 12,
provided Tenant then has a reported net worth (calculated in
accordance with generally accepted accounting principles), as
of the end of Tenant's most recent quarterly reporting period,
of not less than One Hundred Million Dollars ($100,000,000).
e) Landlord shall maintain with respect to the Leased
Premises a policy of commercial general liability insurance,
which insurance shall stipulate limits of liability of not
less than $2,000,000 each occurrence, single limit bodily
injury and/or property damage combined, and shall be provided
by companies authorized to do business in the State. Such
policies of insurance shall name Tenant as an additional
insured. Landlord shall, within a reasonable period of time
after receipt of written request therefor by Tenant, provide a
certificate of such commercial general liability insurance
evidencing Tenant as an additional insured on such policy and
providing that the applicable coverage shall not be cancelled
or modified without thirty (30) days notice to the holder of
such certificate.
During any period in which Landlord or Tenant is
conducting construction activities at, in or on the
Leased Premises, such party shall keep, or cause its
general contractor to keep, in full force and effect,
with regard to the Leased Premises, in form reasonably
acceptable to the other party, at least the minimum
insurance coverages set forth below:
i) Worker's Compensation - Statutory Limits; Employers
Liability -$2,000,000;
ii) Automobile Liability for all vehicles with limits of
$1,000,000; and
iii) Commercial General Liability to include premises
operations and products/completed operations coverage
with limits of $3,000,000.
Additionally, such party shall keep or require its
general contractor to keep in full force and effect a
policy of builder's risk insurance covering loss or
damage to the Leased Premises for the full replacement
cost of all such construction. To the fullest extent the
other party has an insurable interest, such liability
policy shall name the other party as an additional
insured and such builder's risk policy shall name the
other party as a loss payee.
g) Any insurance coverage enumerated in this Lease may
be effected by a blanket policy or policies of insurance
or under so-called "multi-peril" or "package" insurance
policies, provided that the total amount of insurance
available with respect to the Leased Premises and
Tenant's or Landlord's liability hereunder shall be at
least the equivalent of separate policies in the amounts
herein required, and provided further that in other
respects any such policy or policies shall comply with
the provisions of this Lease. Landlord shall not be
entitled to self-insure any of the insurance coverages
recited herein. An "umbrella" policy may be provided and
utilized by either party to increase the limit provided
by any individual or blanket policies in lower amounts,
and the combined occurrence and aggregate limits provided
by all such policies with respect to the Leased Premises
and Tenant's or Landlord's liability hereunder shall be
satisfactory provided that the terms and conditions of
such policies otherwise comply with the provisions of
this Lease.
h) Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby release each other, to
the extent of their agreed-upon insurance coverage, from
any and all liability for any loss or damage caused by
fire or any other casualty insured against, even if such
fire or other casualty shall be brought about by the
fault or negligence of the other party, or any persons
claiming under such other party.
i) Landlord hereby agrees to exonerate, protect,
defend, indemnify and hold Tenant and its officers,
directors, stockholders, members, beneficiaries,
partners, representatives, agents and employees harmless
from and against any and all losses, damages, claims,
suits or actions, judgments and costs (including
reasonable attorneys' fees) arising out of
any injury to or death of persons or damage to property
on or about the Leased Premises caused by the intentional
or negligent acts or omissions of Landlord or its
employees, agents or contractors. Tenant agrees to
exonerate, protect, defend, indemnify and hold Landlord
and its officers, directors, stockholders, members,
beneficiaries, partners, representatives, agents and
employees harmless from and against any and all losses,
damages, claims, suits or actions, judgments and costs
(including reasonably attorneys' fees) arising out of any
injury to or death of persons or damage to property on or
about the Leased Premises caused by the intentional or
negligent acts or omissions of Tenant or its employees,
agents or contractors.
13) REAL ESTATE TAXES.
a) Commencing on the Rent Commencement Date, during the
Term, Tenant shall reimburse Landlord for all "Real Estate
Taxes" (as hereinafter defined). If the Rent Commencement Date
occurs or the Term terminates during any part of a calendar
year, Tenant shall be responsible for such Real Estate Taxes
for only that portion of the calendar year for which Tenant is
responsible to pay Basic Rent hereunder. However, the amount
of Real Estate Taxes attributable to the Leased Premises for
which Tenant shall reimburse Landlord in part shall be less
any abatements, discounts or refunds thereon. In paying such
Real Estate Taxes, Landlord agrees to take full advantage of
any and all available discounts, and Tenant shall not be
obligated to pay any portion of any penalty or interest for
delinquent payment, nor shall Tenant be obligated to pay any
portion of sums owed by Landlord due to failure of Landlord to
take advantage of any discount. Tenant shall reimburse
Landlord for such Real Estate Taxes within thirty (30) days of
receipt from Landlord of a receipted tax xxxx (or in the
alternative copy of the tax xxxx and a copy of Landlord's
check to the appropriate governmental agency or authority)
evidencing Landlord's payment thereof to the taxing authority.
b) Tenant shall have the right, at Tenant's sole expense, to
contest the amount or validity, or otherwise seek an exemption
or abatement, of any Real Estate Taxes or to seek a reduction
in the valuation of the Leased Premises assessed for purposes
of Real Estate Taxes by appropriate proceedings diligently
conducted in good faith, provided that (i) Tenant shall first
have notified Landlord in writing of its intent to do so and
(ii) such contest will not result in the foreclosure, loss or
forfeiture of the Leased Premises, or any portion thereof. In
any instance where any such action or proceeding is being
undertaken by Tenant, Landlord shall (i) cooperate with
Tenant, (ii) execute any and all documents required in
connection therewith and (iii) if required by any law, rule or
regulation of the taxing authority, shall join with Tenant in
the prosecution thereof. Upon the termination of the
proceedings set forth above (unless the taxing authority
requires that Real Estate Taxes be paid under protest prior to
commencement of such proceedings), Tenant shall pay the
applicable Real Estate Taxes as finally determined in such
proceedings, the payment or partial payment of which may have
been deferred during the prosecution of such proceedings.
Tenant shall be entitled to a refund of any overpayment of
Real Estate Taxes relating or allocable to the Leased
Premises, as well as a reimbursement from the appropriate
taxing authority of all costs, fees and expenses it incurs in
such protest or reassessment.
c) For purposes of this Lease, the term "Real Estate Taxes"
shall mean all general real estate taxes and assessments and
other ad valorem taxes, rates and levies paid upon or with
respect to the Leased Premises for a calendar year or a
portion thereof to any governmental agency or authority and
all charges specifically imposed in lieu of any such taxes,
but specifically excluding "roll-back" taxes or other similar
land use charges. Nothing contained in this Lease shall
require Tenant to pay any local, county, municipal, state or
federal income, franchise, corporate, estate, inheritance,
succession, capital levy, business or transfer tax of
Landlord, or any local, county, municipal, state or federal
income, profits, gross receipts, sales or renewal tax or
charge upon the rent or other charges payable by Tenant under
this Lease.
d) Landlord and Tenant understand and acknowledge that
certain credits, exemptions, refunds or abatements against tax
obligations of Tenant and/or Landlord, whether with respect to
Real Estate Taxes, personal property taxes, sales taxes, use
taxes, gross receipts taxes, income taxes, payroll taxes,
value added taxes or other taxes (collectively, "tax
benefits"), as well as incentive payments or credits directly
or indirectly from governmental authorities ("incentive
payments") may become available as a result of the
construction, use, occupancy or conduct of Tenant's business
at the Leased Premises, or the decision of Tenant to establish
and/or operate a business at the Leased Premises. The full
amount of such tax benefits and incentive payments shall be
the property of Tenant. In the event that any such tax benefit
or incentive payment is paid to, accrues to the benefit of, or
is otherwise received by Landlord, at Tenant's option:
i) Landlord shall immediately account for and pay over the
full amount of such tax benefit or incentive payment to
Tenant; or
ii) Tenant may offset the full amount of such tax benefit or
incentive payment against Basic Rent and any other charges
payable by Tenant to Landlord hereunder.
Landlord shall cooperate with Tenant and execute any
documents, forms, or applications as reasonably requested
by Tenant in order to enable Tenant to obtain any tax
benefits or incentive payments directly available to
Tenant.
14) DAMAGE OR DESTRUCTION.
a) If, during the Term, a fire or other casualty shall
render the whole or any portion of the Leased Premises
untenantable, in Tenant's reasonable judgment, and if, in
Tenant's reasonable judgment, the Leased Premises can
reasonably be expected to be restored to substantially
the same condition existing immediately prior to such
casualty within one hundred eighty (180) days from the
date of such casualty, Landlord shall repair and restore
the Leased Premises to substantially the same condition
existing immediately prior to such casualty within such
one hundred eighty (180) day period (subject to any
delays caused by a "Force Majeure Event" [as hereinafter
defined]). In
the event that Landlord timely completes such repair
and/or restoration, this Lease shall remain in full force
and effect. During the period during which such repair
and/or restoration is being performed, rent otherwise
payable hereunder shall xxxxx in the proportion that the
area of the Leased Premises rendered untenantable bears
to the entire area of the Leased Premises until the
Leased Premises is completely restored, repaired, or
replaced to the satisfaction of Tenant; provided,
however, that no rent shall be payable for any portion of
the Leased Premises unless Tenant is able to conduct its
usual business on that portion of the Leased Premises
that remains tenantable. In the event that Landlord shall
undertake to perform such repair and restoration of the
Leased Premises, Tenant shall, prior to Landlord
commencing such repair and restoration, provide Landlord
with
(i) all insurance proceeds and (ii) the amount of the
difference between the insurance proceeds and the full
replacement cost of the Leased Premises.
b) If, during the Term, a fire or other casualty shall
render the whole or any portion of the Leased Premises
untenantable, in Tenant's reasonable judgment, and if, in
Tenant's reasonable judgment, the Leased Premises cannot
reasonably be expected to be repaired and restored within
one hundred eighty (180) days from the date of such
casualty, then Tenant may, by written notice to Landlord
sent within sixty (60) days from the date of such
casualty, terminate this Lease, which termination shall
be effective as of the date of such casualty.
c) If any such fire or other casualty which renders the
whole or any portion of the Leased Premises untenantable
occurs during the final Lease Year of the Initial Term or
of any Option Period, Tenant may, within thirty (30) days
after the date of such casualty, give written notice to
Landlord of Tenant's intention to extend the Term
pursuant to the next applicable Renewal Option provided
for in Section 3 of this Lease, in which event Landlord
shall be obligated to repair and/or restore the Leased
Premises as provided in this Section 14. In the event
Tenant shall not so elect to extend the Term, both
Landlord and Tenant shall each have the option to
terminate this Lease by written notice from the
terminating party to the other party given within sixty
(60) days after the date of such casualty and, in such
event, this Lease shall terminate as of the date of such
casualty.
d) If this Lease is terminated pursuant to this Section
14, Landlord shall promptly pay to Tenant any prepaid but
unearned Basic Rent and other charges paid by Tenant, or
Tenant shall promptly pay to Landlord any Basic Rent and
other charges earned and unpaid, and Landlord shall have
the right to (i) the amount of all insurance proceeds and
(ii) the amount of the difference between the insurance
proceeds and the full replacement cost of the Leased
Premises.
e) If, during the Term, a fire or other casualty shall
damage or destroy any portion of the Leased Premises but
shall not render the Leased Premises untenantable, in
Tenant's reasonable judgment, Tenant shall repair all
such damage or destruction except to the extent fire or
other casualty damages or destroys any structural
elements of the Leased Premises (as set forth in Section
10(b)). Landlord shall repair any damage or destruction
to the structural elements of the Leased Premises (as set
forth in Section 10(b)) within sixty (60) days from the
date of such casualty; Tenant shall provide Landlord with
(i) all
insurance proceeds associated with such damage or
destruction of the structural elements of the Leased
Premises and (ii) the amount of the difference between
the insurance proceeds and the cost to repair any such
damage or destruction of the structural elements of the
Leased Premises.
f) If Landlord is required to repair and restore the
Leased Premises pursuant to this Section 14, the
applicable provisions of Section 2 above and the
Construction Provisions shall apply with respect to
Landlord's construction work related to such repair or
restoration. However, if the nature of the damage is such
that it would be impractical to apply some or all of the
provisions of Section 2 and the Construction Provisions
to Landlord's construction work as mutually and
reasonably determined by Landlord and Tenant, then
Landlord and Tenant shall agree on an alternative
provision or provisions which shall be incorporated into
a written agreement executed by both Landlord and Tenant.
15) CONDEMNATION.
a) If the whole of the Leased Premises shall be acquired or
taken by eminent domain, condemnation or private purchase
under threat thereof or in lieu thereof, including, without
limitation, the physical occupation of the Leased Premises or
any portion thereof or the filing of eminent domain or
condemnation papers by appropriate authorities (a "Taking"),
then this Lease and the Term shall automatically cease and
terminate as of the date on which the condemning authority or
private purchaser shall have the right to possession of the
Leased Premises or any portion thereof (the "Taking Date").
b) If any part of the Leased Premises shall be so taken and
such partial Taking shall render that portion not so taken
unsuitable, as determined by Tenant in its reasonable
discretion, for the purposes for which the Leased Premises
were leased, or if any access, curb cut or other access point
on or to the Leased Premises is modified in a manner which
adversely and materially affects Tenant's business or is lost
as a result of any Taking, then Tenant shall have the right to
terminate this Lease by written notice sent to Landlord within
twelve (12) months after the Taking Date. If any part of the
Leased Premises shall be so taken and this Lease shall not be
so terminated, then this Lease shall continue in full force
and effect except that the Basic Rent and all other charges
payable by Tenant shall be reduced in the same proportion that
the gross leasable area of the portion of the Leased Premises
that has been taken bears to the total gross leasable area of
the entire Leased Premises and Landlord shall, within thirty
(30) after the Taking Date, commence to make all necessary
repairs and alterations to restore the untaken portion of the
Leased Premises to as near its former condition as practicable
such that the untaken portion of the Building will be a
complete architectural unit. In its performance of such repair
and/or restoration work pursuant to this Section 15, the
applicable provisions of Section 2 above and the Construction
Provisions shall apply with respect to Landlord's construction
work related to such repair or restoration. However, if the
nature of the damage is such that it would be impractical to
apply some or all of the provisions of Section 2 and the
Construction Provisions to Landlord's construction work as
mutually and reasonably determined by
Landlord and Tenant, then Landlord and Tenant shall agree
on an alternative provision or provisions which shall be
incorporated into a written agreement executed by both
Landlord and Tenant.
c) If this Lease is terminated as provided in this Section
15, Landlord shall promptly pay to Tenant any prepaid but
unearned Basic Rent and other charges, or Tenant shall
promptly pay to Landlord any Basic Rent and other charges
earned and unpaid.
d) In the event of a Taking, whether permanent or temporary,
of any pylon or monument sign (as contemplated by Section 8(b)
above) on which Tenant has installed identification panels,
Tenant shall provide a substitute site (reasonably acceptable
to Tenant) therefor, within a reasonable period of time after
such Taking. If Landlord shall receive compensation from the
condemning authority for such Taking of any such sign,
Landlord shall pay said compensation to Tenant within fifteen
(15) days after Landlord's receipt thereof.
e) In the event of a Taking as described in this Section 15,
Tenant shall be entitled to claim compensation from the
condemning authority for (i) the value of its leasehold estate
in the Leased Premises and (ii) damages occurring by reason of
the Taking, including but not limited to loss of good will or
future profits or in respect of Tenant's Personal Property,
the cost or expense for the repair and removal of such
Personal Property, moving or relocation expenses, and any
other items to which Tenant may be entitled under applicable
law.
16) TENANT'S DEFAULT:
a) The following shall constitute an event of default by
Tenant hereunder (an "Event of Tenant Default");
i) Tenant's failure to make any payment of money required by
this Lease (including, without limitation, Basic Rent or Real
Estate Taxes) (subject to Tenant's right of good faith
contest), within ten (10) days after Tenant's receipt of
written notice from Landlord to Tenant that same is overdue;
or
ii) Tenant's failure to observe or perform any other material
provision of this Lease within thirty (30) days after Tenant's
receipt of written notice from Landlord to Tenant specifying
such default and demanding that the same be cured; provided
that if such default cannot with due diligence be wholly cured
within such thirty (30) day period, Tenant shall have such
longer period as is reasonably necessary to cure the default,
so long as Tenant proceeds promptly to commence the cure of
same within such thirty (30) day period and diligently
prosecutes the cure to completion.
b) Upon the occurrence of an Event of Tenant Default, at
Landlord's option, in addition to any and all other
remedies which it may have at law and/or in equity
(except as provided below), and without its actions being
deemed an election of remedies or a
cure of Tenant's default, Landlord may (a) terminate this
Lease or (b) re-enter the Leased Premises by judicial
proceeding, expel Tenant and remove all property from the
Leased Premises, and relet the Leased Premises at the
best possible rent obtainable and receive the rent
therefrom. In the event Landlord relets the Leased
Premises, all rentals received by Landlord shall be
applied, first, to the payment of any indebtedness other
than Basic Rent and other charges due hereunder from
Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, excluding tenant upfit
costs; third, to the payment of Basic Rent and other
charges due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of
any future Basic Rent and/or other charges due and unpaid
hereunder. Tenant shall remain liable to Landlord for the
deficiency, if any, between the Basic Rent and all other
charges payable by Tenant pursuant to this Lease and the
rent and all other charges payable by the new tenant
pursuant to the new lease obtained by Landlord on
reletting. In the event this Lease shall be terminated as
provided above, Landlord, its agents, servants or
representatives may immediately or at any time thereafter
peaceably re-enter and resume possession of the Leased
Premises and remove all persons and property therefrom,
by summary dispossession proceedings. The various rights
and remedies reserved to Landlord herein are cumulative,
and Landlord may pursue any and all such rights and
remedies, whether at the same time or otherwise (to the
extent not inconsistent with specific provisions of this
Lease); provided that Landlord shall have the duty in any
instance to mitigate its damages with respect to any
Event of Tenant Default. Notwithstanding anything herein
to the contrary, (i) Landlord expressly waives its right
to forcibly dispossess Tenant from the Leased Premises,
whether peaceably or otherwise, without judicial process,
such that Landlord shall not be entitled to any
"commercial lockout" or any other provisions of
applicable law which permit landlords to dispossess
tenants from commercial properties without the benefit of
judicial review and (ii) Landlord shall in no event have
any right to accelerate the Basic Rent or any other
charges payable by Tenant hereunder.
17) LANDLORD'S DEFAULT.
a) The following shall constitute an event of default by
Landlord hereunder (an "Event of Landlord Default"):
(i) Landlord's failure to make any payments of money due
Tenant or any third party, including but not limited to the
payment of the brokerage commissions pursuant to Section 29(s)
below, within ten (10) days after the receipt of written
notice from Tenant that same is overdue; or
(ii) Landlord's failure to perform any nonmonetary obligation
of Landlord hereunder within thirty (30) days after receipt of
written notice from Tenant to Landlord specifying such default
and demanding that the same be cured; provided that, if such
default cannot with due diligence be wholly cured within such
thirty (30) day period, Landlord shall have such longer period
as may be reasonably necessary to cure the default, so long as
Landlord proceeds promptly to commence the cure of same within
such thirty (30) day period and diligently prosecutes the cure
to completion and provided further that in the case of an
emergency, Tenant shall be required to give only such
notice as is reasonable under the circumstances.
b) Upon the occurrence of an Event of Landlord Default,
at Tenant's option, in addition to any and all other
remedies which it may have at law and/or in equity, and
without its actions being deemed an election of remedies
or a cure of Landlord's default, Tenant may do all or any
of the following:
(i) pay or perform such obligations and offset Tenant's
actual cost of performance, including any and all transaction
costs and attorneys' fees, against the Basic Rent and any and
all other amounts and charges due Landlord hereunder; or
(ii) withhold Basic Rent and any other payments due to
Landlord under this Lease until such Event of Landlord
Default, transaction costs and attorneys' fees specified in
subsection (i) above, is cured by Landlord; or
(iii) terminate this Lease and/or xxx for damages,
including transaction costs and attorneys' fees specified in
subsection (i) above.
With respect to a breach by Landlord of the
provisions of Section 18 below, Tenant shall be entitled
to any remedies provided therein, in addition to those
remedies provided herein.
The various rights and remedies reserved to Tenant
herein are cumulative, and Tenant may pursue any and all
rights and remedies, whether at the same time or
otherwise. Notwithstanding the foregoing, a delay by
Tenant in exercising its cure rights or other remedies
hereunder shall not be deemed a Force Majeure Event for
purposes of extending the date(s) established for
performance by Landlord.
c) Any offset made by Tenant against Basic Rent or any
other charges otherwise due by Tenant hereunder shall be
without liability to Tenant, shall not constitute a
default on behalf of Tenant and shall not affect any
other rights or remedies Tenant may have against Landlord
for failure to comply with the provisions herein.
18) NON-COMPETITION.
a) Neither Landlord nor any stockholder, member, partner,
beneficiary, successor, assign, personal representative,
heir, subsidiary or affiliate of Landlord, nor any
person(s) or entity(ies) having a direct or indirect
interest in Landlord, shall, for as long as this Lease
remains in force and effect, either directly or
indirectly, own, occupy or operate, or sell, lease or
otherwise transfer to any person or entity, or permit any
person or entity to occupy, any land, building, premises
or space, whether presently owned or hereafter acquired,
located within two (2) miles of the Leased Premises for
the purpose of (i) conducting thereon a business similar
to that being conducted by Tenant on the Leased Premises
or (ii) the sales, display or rental of automotive parts,
accessories, supplies
and/or maintenance items. In addition, neither Landlord
nor any stockholder, member, partner, beneficiary,
successor, assign, personal representative, heir,
subsidiary or affiliate of Landlord, nor any person(s) or
entity(ies) having a direct or indirect interest in
Landlord, shall lease, sell or otherwise transfer or
convey any such premises adjacent to and/or contiguous
with the Leased Premises without imposing thereon a
restriction to secure compliance herewith, or permit any
tenant or occupant of any such premises or any part
thereof to sublet or assign in any manner, directly or
indirectly, any part thereof to any person, firm,
corporation or other entity engaged in any such business
described above, without the prior written consent of
Tenant, which consent may be withheld by Tenant in
Tenant's sole discretion.
b) Tenant shall, in the event that there is a breach of
any of the provisions of this Section 18, have the
following rights and remedies, none of which shall be
exclusive of the other remedies or any other remedy
otherwise available to Tenant:
i) Tenant may institute proceedings to enjoin the violation;
ii) If such breach continues for a period of thirty (30) days
after written notice thereof shall have been given by Tenant
to Landlord, Tenant may, at any time thereafter, elect to
terminate this Lease and, on such election, this Lease shall,
on the date stated in the notice of such election, be
terminated, and Tenant shall be released and discharged of and
from any and all further liability hereunder;
iii) Landlord shall protect, defend, indemnify and hold Tenant
harmless from all losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys'
fees and court costs) sustained or incurred in connection with
any proceedings instituted by Tenant as a result of any such
breach.
19) ENVIRONMENTAL:
a) As used herein, the term "Hazardous Substance" includes
petroleum, natural or synthetic gas products and any
hazardous, toxic or dangerous waste, pollutant, contaminant,
substance or material defined as such in, or for the purposes
of, the "Enviromnental Laws" (as hereinafter defined). For the
purposes of this Lease, the term "Environmental Laws" means
any environmental, health or safety law, rule, regulation,
ordinance, order or decree, including, without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act, as amended, the Resource Conservation and
Recovery Act, as amended, any "Superfund" or "Super Lien" law
or any other federal, state, county or local statute, law,
ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability or standards of conduct
concerning any petroleum, natural or synthetic gas products
and/or hazardous, toxic or dangerous waste pollutant or
contaminant, substance or material as may now or any time
hereinafter be in effect.
b) Landlord represents, warrants and covenants that:
(i) to the best of Landlord's knowledge and belief, the
Leased Premises is in compliance with all Environmental
Laws and no Hazardous Substances have been released or
threatened to be released upon, in, at, around or under
the Land or off-site locations within one (1) mile of the
Land that are owned, operated or controlled by Landlord
or any party related to Landlord to any degree, except as
disclosed in the Phase I Report (as defined in Section
19(c));
(ii) to the best of Landlord's knowledge and belief,
there is not now, pending or threatened, any action,
suit, investigation or proceeding against Landlord or the
Land, or against any other property relating to the Land,
seeking to enforce a right or remedy under common law or
under any of the Environmental Laws;
(iii) Landlord has, to the best of Landlord's
knowledge and belief, complied with and will continue to
comply with all applicable Environmental Laws relating to
or affecting the Leased Premises including, without
limitation, Landlord's business operations upon or off
the Leased Premises (including, without limitation, all
Environmental Laws with respect to the registration,
testing and upgrading of underground or above ground
storage tanks);
(iv) Landlord has not, to the best of Landlord's
knowledge and belief, and will not engage in any
activities that constitute spilling, leaking, emitting,
discharging, injecting, dumping or disposing of any
Hazardous Substances into the environment on, above,
below or surrounding the Leased Premises;
(v) to the best of Landlord's knowledge and belief,
there is no asbestos-containing material on the Leased
Premises;
(vi) Landlord has, to the best of Landlord's knowledge
and belief, obtained, and will at all times continue to
obtain and maintain, all required environmental licenses
and permits under the Environmental Laws that are
necessary for the ownership of the Leased Premises (the
"Environmental Permits"), and Landlord has, to the best
of Landlord's knowledge and belief, complied with and
will comply with all other governmental or regulatory
requirements necessary to comply with the Environmental
Laws. Landlord is, to the best of Landlord's knowledge
and belief, in full compliance with the terms and
provisions of the Environmental Permits and will continue
to comply with the terms and provisions of the
Environmental Permits; and
(vii) to the best of Landlord's knowledge and belief,
there are no Hazardous Substances located on, in, at or
under the Leased Premises that exceed action levels.
Landlord agrees to indemnify and hold Tenant
harmless from any and all claims, damages, fines,
judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for
settlement of claims, attorneys' fees, consultants'
fees, and expert fees) arising at any time from or in
connection with (i) the presence or release, or suspected
presence or release, of Hazardous Substances or asbestos-
containing materials at, in or on the Leased Premises
unless the Hazardous Substances or asbestos-containing
materials are present solely as a result of the breach by
Tenant of the provisions of Section 19(d) below or (ii)
the violation of any Environmental Laws unless such
violation is due solely as a result of the breach by
Tenant of the provisions of Section 19(d) below. Without
limiting the foregoing, this indemnification (i) shall
include any and all costs incurred due to any
investigation of the Leased Premises or any cleanup,
removal, or restoration mandated by any governmental
authorities and (ii) shall specifically include any and
all costs due to Hazardous Substances that flow, diffuse,
migrate, or percolate into, onto, or under the Leased
Premises.
c) Tenant's obligations under this Lease are
conditioned upon (i) the Land being in compliance with
all Environmental Laws and (ii) the Land being free from
any and all Hazardous Substances. In order to determine
preliminarily such compliance with Environmental Laws and
the lack of Hazardous Substances, Landlord shall within
thirty (30) days of the date of this Lease obtain and
provide Tenant with a copy of a Phase I environmental
report (the "Phase I Report") to be prepared at
Landlord's sole cost and expense. In the event the Phase
I Report reflects (i) any potential non-compliance with
Environmental Laws and/or (ii) the potential existence of
Hazardous Substances on or under the Land, and the Phase
I Report recommends further study, Landlord shall, within
thirty (30) days of the date of the Phase I Report, order
a Phase H environmental report (the "Phase II Report"
and, together with the Phase I Report, the "Environmental
Reports") to be prepared at its sole cost and expense.
The Environmental Reports shall be prepared by a
qualified environmental firm reasonably acceptable to
Tenant and shall be addressed and certified to both
Landlord and Tenant such that both Landlord and Tenant
shall be entitled to rely thereon. In the event the
Environmental Reports reflect that (i) the Land is not in
compliance with the Environmental Laws and/or (ii) the
Land is not free from any and all Hazardous Substances,
this Lease shall be null and void on the later of the
thirtieth (30th) day after Tenant receives a copy of the
most recent of the Environmental Reports or the thirtieth
(30th day) after the Commencement Date unless (i) Tenant
expressly waives, in writing, such nullification or (ii)
Landlord elects, by written notice given to Tenant prior
to the expiration of such thirty (30) day period, to have
the non-compliance condition and/or the presence of
Hazardous Substances remediated. If Landlord elects to
undertake any such remediation, Landlord shall diligently
perform such remediation and this Lease shall remain in
effect for a period of one hundred and twenty (120) days
subsequent to the thirty (30) day period described in the
previous sentence (the "Remediation Period") to permit
such remediation, but if such remediation has not been
completed by the end of the Remediation Period, this
Lease may be terminated by Tenant upon written notice to
Landlord.
d) Tenant covenants that, during the period of its
possession of the Leased Premises, Tenant and its
employees shall comply with all Environmental Laws that
are applicable to Tenant's use of the Leased Premises.
Tenant agrees to indemnify and hold Landlord harmless
from any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses (including,
without limitation, any and all sums paid for settlement
of claims,
attorneys' fees, consultants' fees, and expert fees)
arising at any time solely as a result of the violation
by Tenant and/or its employees of the foregoing covenant.
Without limitation of the foregoing, this indemnification
shall include any and all costs incurred by Landlord due
to any investigation of the Leased Premises or any
cleanup, removal, or restoration mandated by any
governmental authorities.
20) SUBORDINATION ESTOPPELS.
a) Simultaneously with the execution hereof, Landlord shall
deliver to Tenant, with regard to any and all "Ground Leases"
(as hereinafter defined) and any and all "Mortgages" (as
hereinafter defined) encumbering the Leased Premises as of the
Commencement Date of this Lease, a subordination, non-
disturbance and attornment agreement in the form attached
hereto as Exhibit "C", executed by the lessor under any such
Ground Lease ("Ground Lessor") or the holder of such Mortgage
("Mortgagee"), as applicable. Tenant shall have no obligation
to pay Basic Rent or other charges hereunder until such
subordination, non-disturbance and attomment agreement(s) are
delivered to Tenant, whereupon Tenant shall pay all accrued
Basic Rent and other charges due hereunder at the time of such
delivery. In addition, throughout the Term, Landlord shall
deliver to Tenant a subordination, non-disturbance and
attomment agreement in the form attached hereto as Exhibit "C"
executed by any Ground Lessor or Mortgagee (as applicable)
with regard to all future Ground Leases and Mortgages and with
regard to all renewals, modifications, replacements and
extensions of such Ground Leases or Mortgages. Upon Tenant's
receipt of the executed subordination, non-disturbance and
attomment agreement, this Lease shall be subordinate to the
corresponding Ground Lease or Mortgage. Landlord shall cause
any present or future Mortgagee to deliver a subordination,
non-disturbance and attomment agreement in accordance with
this Section 20(a) at or prior to the time which the lien of
the Mortgage is filed against record title to the Leased
Premises. As used in this Lease, the term "Mortgage" shall
mean any mortgage, deed to secure debt, deed of trust, trust
deed or other collateral conveyance of, or lien or encumbrance
against, all or any portion of the Leased Premises, and the
term "Ground Lease" shall mean any ground lease or master
lease affecting all or any portion of the Leased Premises.
b) Tenant shall, at all reasonable times, upon at least
thirty (30) days' prior written notice from Landlord, provide
Landlord with an estoppel certificate in the form attached
hereto as Exhibit "E."
c) No Personal Property of Tenant shall be subject to
mortgage liens of Landlord.
21) TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN. All of
Tenant's Personal Property, except that which is permanently
attached, and inventory shall be and remain the personal
property of Tenant and shall be removable by Tenant any time
prior to the expiration or earlier termination of this Lease.
Notwithstanding anything contained herein to the contrary,
Landlord expressly waives its statutory or common law
landlord's liens (as same may be enacted or may exist from
time to time) and any and all rights granted under any present
or future laws to levy or distrain for rent (whether in
arrears or in advance) against the Personal
Property and further agrees to execute any reasonable
instruments evidencing such waiver, at any time or times
hereafter upon Tenant's request.
22) TENANT'S FINANCING. Notwithstanding any other provisions
of this Lease, Tenant may, without Landlord's consent, from
time to time, secure financing or general credit lines and
grant the lenders thereof, as security therefor, (i) a
security interest in the Personal Property, (ii) the right to
enter the Leased Premises to realize upon any Personal
Property so pledged, and/or (iii) a collateral assignment of
Tenant's leasehold interest in the Leased Premises, with
rights of reassignment; provided, however, such collateral
assignment may be made solely for the purpose of securing
Tenant's indebtedness.
23) COMPLIANCE WITH APPLICABLE LAWS AND PERMITTED
ENCUMBRANCES. During the Term, Landlord and Tenant shall
comply with (i) all lawful requirements of the local, county
and state health boards, police and fire departments,
municipal and state authorities and any other governmental
authorities with jurisdiction over the Leased Premises and
(ii) any covenants, restrictions and requirements contained in
the Permitted Encumbrances, respecting Tenant's use and
occupancy of the Leased Premises.
24) NOTICES. Notices under this Lease shall be in writing and
shall be deemed properly served and received: (i) two (2)
business days after being deposited in the United States mail,
as certified or registered mail, return receipt requested,
bearing adequate postage, (ii) one (1) business day after
being deposited with a reputable overnight delivery carrier
(e.g. Federal Express, Airborne, UPS, Express Mail) for
guaranteed next day delivery with a request that the addressee
sign a receipt evidencing delivery or (iii) upon receipt if
personally delivered. Rejection or other refusal to accept or
the inability to deliver because of changed address of which
no notice was given shall be deemed to be receipt of the
notice as of the date of such rejection, refusal or inability
to deliver. Notices shall be addressed as follows:
To Landlord at: Xxxxx-Xxxxx Development Group, LTD.
0000 Xxxxx XxXxxx Xxxx
XxXxxxx, XX 00000
To Tenant at: Advance Stores Company, Incorporated
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Real Estate Department
for overnight delivery: 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Real Estate Department
With a copy to: Advance Stores Company, Incorporated
0000 XxxxxxxXxxx
Xxxxxxx, XX 00000
Attn: Legal Department
or to any other address furnished in writing by any of the
foregoing. However, any change of address furnished shall
comply with the notice requirements of this Section 24 and
shall include a complete outline of all current addresses to
be used for all parties.
25) NO LIENS. Should any lien of any nature be filed against
the Leased Premises, the party on account of whose actions
such lien has been filed shall, within thirty (30) days after
receipt of written notice of such lien, cause such lien to be
removed, or otherwise protected against execution during good
faith contest, by substitution of collateral, posting a bond
therefor, escrowing of adequate funds to cover the claim and
related transaction costs or such other method as may be
permissible under applicable title insurance regulations and
reasonably acceptable to the other party hereto.
26) COVENANT OF QUIET ENJOYMENT. Landlord covenants, warrants
and represents that Tenant, upon paying the rent herein
reserved and performing the covenants and agreements hereof,
shall peaceably and quietly have, hold and enjoy the Leased
Premises during the Term. No third party has the right to
prohibit Tenant's tenancy hereunder, to prohibit Tenant or its
employees, customers and/or invitees from using the Leased
Premises in accordance with the terms of this Lease or to
consent to or approve (excepting governmental agencies) any
feature of the Leased Premises or Tenant's signage. There
shall be no restrictions of any kind during the Term that
could prevent, limit or restrict the use of the Leased
Premises in accordance with the terms of this Lease,
including, without limitation, (x) the operation of a retailer
of automotive parts, accessories, supplies and/or maintenance
items and (y) truck deliveries to the Leased Premises during
Tenant's business hours. No signboards or other construction
which obstructs the view of the Leased Premises from adjoining
public streets shall be erected during the Term upon any
property owned, leased, operated or otherwise controlled by
Landlord or any stockholder, member, partner, beneficiary,
successor, assign, personal representative, heir, subsidiary
or affiliate of Landlord, or any person(s) or entity(ies)
having a direct or indirect interest in Landlord.
Notwithstanding the foregoing, in the event that an
intentional or negligent act or omission or violation of any
applicable law, rule or regulation by Tenant, or any assignee
(to the extent Tenant remains liable under this Lease
subsequent to an assignment pursuant to Section 9) or
subtenant of Tenant results in the limitation or restriction
of its use of the Leased Premises, neither Tenant nor any such
assignee or subtenant shall be able to claim such limitation
or restriction to be an Event of Landlord Default hereunder.
27) SURRENDER; HOLDING OVER
a) Upon expiration of this Lease, or its earlier
termination, Tenant will surrender possession of the Leased
Premises (except for any and all of Tenant's Personal Property
removed from the Leased Premises) to Landlord in broom clean
condition, except for ordinary wear and tear and loss by fire
or other casualty or by a "Taking" (as hereinafter defined).
b) If Tenant shall remain in possession of the Leased
Premises or any part thereof after expiration of the Term
without an agreement in writing between Landlord and Tenant
with respect thereto, Tenant shall be deemed a tenant from
month to month upon the same terms and conditions as contained
in this Lease. Notwithstanding the foregoing, Tenant shall pay
Landlord, as rental on the Leased Premises for any period that
Tenant
remains in possession of the Leased Premises after
expiration of the Term, an amount equal to one hundred
ten percent (110%) of the Basic Rent which Tenant would
otherwise have paid if the Term had not expired for each
month or any portion thereof in which Tenant occupies the
Leased Premises after the expiration of the Term.
28) EASEMENT. Landlord shall be solely responsible for
complying with all obligations imposed upon the Leased
Premises or the owner or occupant thereof by the Easement, as
hereinafter defined, including, but not limited to, all
insurance and indemnification. Tenant shall be responsible for
maintenance under the Easement provided that Landlord delivers
the certificate as to the parking area of the Leased Premises
as required by Section 2(c) of the Construction Provisions and
constructs the parking area in accordance with the design
standards therefor as required by Section 2(b) of the
Construction Provisions. Landlord shall promptly provide
Tenant with a copy of any notice Landlord receives in
connection with the Easement. Landlord shall not consent to
any amendment to or modification of the Easement without first
notifying Tenant of such proposed amendment in writing and
receiving Tenant's written consent to such amendment, such
consent not to be unreasonably withheld. Landlord shall
indemnify and hold harmless Tenant from all damages, claims,
liabilities or expenses, including reasonable and actual
attorney's fees (through all levels of proceedings), arising
in connection with the Easement or any obligation imposed or
right granted therein.
29) MISCELLANEOUS PROVISIONS.
a) TIME OF ESSENCE. Time is of the essence with respect to
any time periods or dates referenced in this Lease with
respect to both Landlord and Tenant.
b) CONFIDENTIALITY. Except for documents that are or will be
a matter of public record or information which the other party
has agreed to in writing may be disclosed, the parties hereto,
including, but not limited to, their heirs, successors,
assigns and legal representatives, agree to use their best
reasonable efforts to maintain the confidentiality of, and
shall not disclose to any third party (except to an
accountant, attorney, potential purchaser, tax preparer for
tax return preparation or lender to the extent such person
agrees to be bound by this confidentiality provision), any
terms of this Lease or any correspondence, documents and/or
things relating to this Lease, unless such terms,
correspondence, documents and/or things are legally required
to be disclosed. This confidentiality agreement extends to any
developers, bankers, lawyers, accountants, employees, agents
or any other persons acting on behalf of the parties hereto.
Notwithstanding anything contained herein to the contrary, any
breach of this confidentiality agreement shall constitute an
automatic Event of Default without notice or cure provided,
for which either party may recover damages as their sole
remedy and for which neither party can terminate this Lease.
c) IDENTITY OF INTEREST. Nothing contained in this Lease
shall be construed to make Landlord and Tenant partners or
joint venturers or to render either party liable for the debts
or the obligations of the other. The only relationship created
by this Lease between the parties is that of landlord and
tenant.
d) THIRD PARTY BENEFICIARIES. Except as herein
specifically provided, no person, subtenant, customer,
employee or invitee or any other third party shall be
deemed to be a third party beneficiary of any of the
provisions herein.
e) PARTIAL INVALIDITY. If any section, paragraph,
subparagraph, sentence, clause or phrase of this Lease
shall be declared or judged invalid or unconstitutional,
such declaration or adjudication shall not affect the
other sections, paragraphs, subparagraphs, sentences,
clauses or phrases of this Lease, all of which shall
remain in full force and effect.
f) MEMORANDUM OF LEASE; DECLARATION. Simultaneously with
the execution of this Lease, Landlord shall (i) cause to
be prepared and executed, at its expense, a short form or
memorandum of this Lease in the form attached hereto as
Exhibit "F" (the "Lease Memorandum") and (ii) submit
same to Tenant. In the event a Lease Memorandum cannot be
recorded in the State or locality in which the Leased
Premises is located due to legal or financial
considerations, as determined by Tenant in its sole
discretion, after consultation with Landlord concerning
the requirements of said State or locality, Landlord
shall (i) cause to be prepared and executed, at its
expense, a Declaration of Covenants, Conditions and
Restrictions encumbering the Leased Premises and any
other real property owned, leased, operated or otherwise
controlled by Landlord and/or related entities and
located adjacent to or within two (2) miles of the Leased
Premises, the form of which Declaration is attached
hereto as Exhibit "G" (the "Declaration") and (ii) submit
same to Tenant. Landlord shall record, at Tenant's
expense, such Lease Memorandum or Declaration, as
applicable. The provisions of this Lease shall control
with regard to any omissions from, or provisions hereof
which may be in conflict with, the Lease Memorandum or
the Declaration. Notwithstanding the foregoing, this
Lease shall not be recorded in any office or place of
public record, and if either party shall record this
Lease or cause or permit the same to be recorded, such
act may be treated as a breach of this Lease by such
recording party. Upon the expiration or earlier
termination of this Lease, the parties hereto shall
execute a mutually acceptable agreement terminating the
Lease Memorandum or the Declaration, as applicable.
g) NOTICES AFFECTING THE LEASED PREMISES. Landlord
shall promptly forward to Tenant any notice or other
communication affecting the Leased Premises received by
Landlord from any owner of property adjoining, adjacent
or nearby to the Leased Premises or from any municipal or
governmental authority, in connection with any hearing or
other administrative procedure relating to the use or
occupancy of the Leased Premises or any such neighboring
property.
h) HEADINGS: GENDER. The section headings are for
convenience and are not a part of this Lease. The
masculine, feminine or neuter gender and the singular or
plural number shall be deemed to include the others
whenever the context so requires or indicates.
i) NO WAIVER. The failure of either party to insist in
any one or more instances upon a strict performance of
any covenant of this Lease or to exercise any option or
right herein contained shall not be construed as a waiver
or relinquishment for the future
enforcement of such covenant, right or option, but the
same shall remain in full force and effect, unless the
contrary is expressed in writing by such party.
j) FORCE MAJEURE. Except as otherwise specifically
contemplated in this Lease, in the event that Landlord or
Tenant shall be delayed or hindered in, or prevented
from, the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to
procure materials, delay by the other party, failure of
power or unavailability of utilities, riots,
insurrection, war, terrorism or other reason of a like
nature not the fault of such party or not within its
control (each, a "Force Majeure Event"), then performance
of such act shall be excused for the period of delay, and
the period for the performance of any such act shall be
extended for a period equivalent to the period of such
delay; provided, however, the party claiming a delay by
reason of a Force Majeure Event shall notify the other
party within five (5) business days following the onset
of the Force Majeure Event.
k) PRE-EXISTING CONDITIONS. Nothing contained in this
Lease shall be construed to impose any responsibility
upon Tenant with regard to any loss, injury or other
claim arising as a result of any condition that existed
on the Leased Premises at the time of Tenant's taking
possession thereof.
1) NO OFFER. Tenant's delivery to a prospective landlord
of this form of Lease shall not be deemed an offer to
lease even though such form may have been completed in
every respect.
m) CHOICE OF LAW. This Lease shall be construed in
accordance with and governed by the laws of the State.
n) BINDING EFFECT. This Lease shall inure to the
benefit of and be binding upon Landlord and Tenant and
their respective heirs, executors, legal representatives,
successors and assigns.
o) NO CONSTRUCTION AGAINST DRAFTING PARTY. This Lease
has been prepared by Tenant and its professional advisors
and reviewed by Landlord and its professional advisors.
Tenant, Landlord and their separate advisors believe that
this Lease is the product of all of their efforts, that
it expresses their agreement, and that it should not be
interpreted in favor of either Tenant or Landlord or
against either Tenant or Landlord merely because of their
efforts in preparing it.
I)) ENTIRE AGREEMENT; AMENDMENT. This Lease and the
attached exhibits constitute the entire agreement between
Landlord and Tenant with respect to the Leased Premises,
and all negotiations, considerations, representations and
understandings between Landlord and Tenant prior to the
execution of this Lease are incorporated herein. Neither
this Lease nor any of its provisions nor any of the
documents creating the Permitted Encumbrances set forth
in "Exhibit H" may be amended, modified, waived,
discharged or terminated except by an instrument in
writing signed by the parties hereto.
q) TRADEMARKS AND TRADE NAMES. All trademarks, trade
names, service marks, signs and all other marks of
identification used by Tenant in its business shall at
all times
remain the exclusive property of Tenant, and Landlord
shall have no right, interest in, or title to any of
Tenant's trademarks, trade names, service marks, signs or
other marks -of identification.
r) HOLIDAYS. If the day on which any rent or any other
payment due hereunder is payable falls on a Saturday or
Sunday or on a legal holiday, it shall be payable on the
following business day.
s) BROKERS. Tenant and Landlord warrant each to the
other that it has had no dealings with any broker or
agent in connection with this lease, and each party
covenants to pay, hold harmless and indemnify the other
from and against any and all costs, expenses or liability
for any compensation, commissions and charges claimed by
any broker or agent with respect to this lease or the
negotiation thereof.
t) COUNTERPARTS. This Lease may be executed in more
than one counterpart, each of which shall be deemed an
original but all of which together shall constitute one
and the same instrument.
u) EXHIBITS. The following Exhibits are attached hereto
and incorporated herein by this reference:
EXHIBIT "A" - Survey of Land
EXHIBIT "B" - Construction Provisions
EXHIBIT "C" - Subordination, Non-Disturbance and Attomment Agreement
EXHIBIT "D" - Commencement Agreement
EXHIBIT "E" - Estoppel Certificate
EXHIBIT "F" - Lease Memorandum
EXHIBIT "G" - Declaration
EXHIBIT "H" - Permitted Encumbrances
EXHIBIT "H-1" Easement
EXHIBIT "I-1" Exterior Sign
EXHIBIT "I-2" Pylon Sign
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be executed effective as of the day and year first written above.
LANDLORD:
XXXXX-XXXXX DEVELOPMENT GROUP LTD
a Texas limited partnership
BY: DSL Managment LLC
a Texas limited liability company
Its General Partner
By: /s/ Xxxx Xxxxx
Name Xxxx Xxxxx
Its President
Date 2/3/05
TENANT:
ADVANCE STORES COMPANY
INCORPORATED, a Virginia corporation
By: /s/ Jimmmie L Xxxx
Name Xxxxxx X Xxxx
Its President
Date 2/7/05
STATE OF TEXAS )
)SS
COUNTY OF XXXXXXX )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that Xxxx Xxxxx, personally known to me
to be the President of DSL Management, L.L. C., General Partner of
Xxxxx-Xxxxx Development Group, LTD., who acknowledged that he did sign
the foregoing instrument and that the same is the free act of and on
behalf of said limited liability company and said limited partnership and
the free act and deed of him personally and as such President, appeared
before me this day in person and acknowledged under oath that as such
President he signed and delivered the said instrument pursuant to
authority duly given to him by said limited liability company and
said limited partnership.
Given under my hand seal this 3rd day of February, 2005.
[Notary seal] /s/ Xxxx X Xxxxx
Notary Public
My Commission Expires March 3, 0000
XXXXXXXXXXXX XX XXXXXXXX )
)SS
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that Xxxxxx X Xxxx, President of
Advance Stores Company, Incorporated, a Virginia corporation, and
personally known to me to be the same person whose name is subscribed
to the foregoing instrument, appeared before me this day in person and
acknowledged under oath that as such President, he signed and delivered
the said instrument pursuant to authority duly given to him by said
corporation.
Given under my hand and seal this 7th day of February, 2005.
/s/ Xxxxx M Shaz
Notary Public
My Commission expires: 7-31-08
METES AND BOUNDS
BEING A 0.815 ACRE (35,500 SQ. FT.) TRACT, AND BEING ALL
OF LOT ONE (1), AND THE EAST FIFTY FEET (50') OF LOT TWO
(2), BLOCK ONE (1), RESACA GRANDE SUBDIVISION, SECTION I,
A SUBDIVISION IN THE CITY OF BROWNSVILLE, CAMERON COUNTY,
TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN
CABINET I, SLOT 1338-A AND 0000-X, XX XXX XXX XXXXXXX XX
XXXXXXX XXXXXX, XXXXX; SAID 0.815 ACRE TRACT BEING MORE
PARTICULARLY LOCATED AND DESCRIBED AS FOLLOWS;
BEGINNING AT A CONCRETE MONUMENT FOUND ON THE NORTH RIGHT-
OF-WAY LINE OF F.M. 802 (150 F.T. R.O.W.) SAID POINT BEING
THE SOUTHEAST CORNER OF LOT ONE (1) OF SAID RESACA GRANDE
SUBDIVISION, SECTION I AND THE SOUTHWEST CORNER OF LOT
FOUR (4) OF MADDEN RESUBDIVISION (CABINET I, PAGE 1375-A,
C.C.M.R.), FOR THE SOUTHEAST CORNER OF THIS TRACT;
THENCE, ALONG THE NORTH RIGHT-WAY LINE OF SAID F.M. 802
(150 FT. R.O.W.) WITH ALONG A CURVE TO THE LEFT'WITH A
RADIUS OF 1984.86 FT_ AT AN ARC DISTANCE OF 100.64 FT. TO
THE SOUTHWEST CORNER OF LOT 1, SAME. BEING THE SOUTHEAST
CORNER OF. XXX 0, X XXXXX XXXXXXXX XX 000.00 XX. (XX: N
5715.00"W 150.73 FT.) TO A ONE-HALF INCH IRON ROD WITH AN
ORANGE PLASTIC CAP STAMPED "AMBIOTEC RPLS 5301" SET FOR THE
SOUTHWEST CORNER OF THIS TRACT;
THENCE, LEAVING THE NORTH RIGHT-OF-WAY OF F.M. 802(150
FL R.O.W.), NORTH 27 DEG. 12 .MIN. 29 SEC. EAST, A
DISTANCE OF 173.01 FT. TO A POINT ON THE NORTH LINE OF
LOT TWO (2) OF SAID RESACA GRANDE SUBDIVISION, SECTION I,
TO A ONE-HALF INCH IRON ROD WITH AN ORANGE PLASTIC CAP
STAMPED "AMBIOTEC RPLS 5301" SET FOR THE NORTHWEST CORNER
OF THIS TRACT;
THENCE, ALONG THE NORTH LINE OF LOTS ONE (1) AND TWO (2),
OF SAID RESACA GRANDE SUBDIVISION, SECTION I, SOUTH 59 DEG.
59 MN. 23 SEC_ EAST, AT A DISTANCE OF 50.06 FT. TO THE
NORTHEAST CORNER OF XXX 0 XXXX XXXXX XXX XXXXXXXXX XXXXXX
XX XXX 0, AND A TOTAL DISTANCE OF 251.85 FT. TO A METAL
PIPE FOUND FOR THE SOUTHEASTCORNER OF LOT TWELVE (12) AND.
THE NORTHEAST CORNER OF LOT ONE (1) OF SAID RESACA GRANDE
SUBDIVISION, SECTION 1, FOR THE NORTHEAST CORNER OF THIS
TRACT;
THENCE, ALONG THE EAST UNE OF LOT ONE (1) OF SAID RESACA
GRANDE SUBDIVISION, SECTION I, SAME BEING THE WEST LINE OF
SAID XXX 0, XXXXXX XXXXXXXXXXXXX, XXXXX 00 XXX. 17 MIN. 35
SEC. WEST, A DISTANCE OF 202.53 FT. TO THE POINT OF
BEGINNING.
CONTAINING. 0.815 ACRE (35,500 SQ. FT.) OF LAND, MORE OR
LESS.
GENERAL NOTES:
1) THIS. TRACT LIES IN FLOOD ZONE "C" (OUTSIDE THE. 100-
YEAR FLOOD PLAIN). AS PER THE F.I.A. FLOOD INSURANCE
RATE MAP OF COMMUNITY NO. 480101, PANEL NO. 0350-B.
EFFECTIVE DATE SEPTEMBER 15, 1983.
MONUMENTATION FOUND ALONG THE NORTH RIGHT-OF-WAY UNE
OF F.M. 802 (150 FT. R.O.W.) WAS HEW FOR BASIS OF
BEARING.
3) THIS TRACT IS SUBJECT TO RESTRICTIONS RECORDED IN VOLUME
3486, PAGE 162, OFFICIAL RECORDS OF CAMERON COUNTY, TEXAS.
4) THIS TRACT IS CLASSIFIED: '4Ca- GENERAL RETAIL "'0"
AS PER THE CITY OF BROWNSVILLE
PLANNING it ZONING. DEPARTMENT.
CONTACT. PERSON: XXXXXX GUZUAN,
TELEPH. 000-000-0000
IN A -G"' AREA DISTRICT, YARD SHALL BE PROVIDE)
AS FOLLOWS:
THERE SHALL BE A.1-K NT YARD ALONG THE FRONT UNE OF THE
LOT. THE MINIMUM DEPTH OF EACH FRONT YARD SHALL BE 25
FEET.
THERE SHALL BE A REAR YARD ALONG THE REAR UNE OF THE
LOT. THE MINIMUM DEPTH OF SUCH SHALL BE REAR YARD SHALL
BE 13.5 FEET FOR A LOT ON AN ALLEY OR 3.5 FEET FOR A LOT
NOT ON AN ALLEY.
THERE SHALL. BE A SIDE YARD ALONG EACH SIDELINE OF THE
LOT. THE MINIMUM WIDTH OF EACH SIDE YARD SHALL BE 3.5
Ftk. I.
SEC. 348-813 HEIGHT.
IN A "T AREA DISTRICT, HEIGHT UNITS SHALL BE AS
FOLLOWS:
THE HEIGHT LIMIT SHALL BE TWO STORIES FOR A DWELLING,
APARTMENT HOUSE, OR OTHER RESIDENTIAL BUILDING.
THE HEIGHT UNIT SHALL BE 24 FEET FOR ANY OTHER STRUCTURE
EXCEPT THAT ANY PORTION OF SUCH STRUCTURE MAY BE ERECTED
HIGHER THAN THE UNIT, PROVIDED SUCH PORTION IS SET BACK
FROM ALL REQUIRED YARD LINES ONE FOOT FOR EACH FOOT OF
ITS HEIGHT ABOVE SUCH LIMIT
SEC. 348-814 LOT =TH.
IN A "G" AREA DISTRICT, LOT WIDTH SHALL BE AS
FOLLOWS:
THE MINIMUM AVERAGE WIDTH OF THE LOT SHALL BE 50 FEET.
HOWEVER, THE MINIMUM AVERAGE WIDTH OF THE LOT SHALL BE
25 Feet FOR ANY LOT RECORDED IN THE COUNTY MAP
RECORDED IN THE COUNTY MAP RECORDS PRIOR TO JULY 14,
1945.
SEC. 348-815. XXX XXXX.
XX X XXXX XXXXXXXX, XXX XXXX SHALL BE AS FOLLOWS:
THE. MINIMUM LOT AREA SHALL BE 5,000 SQUARE FEET.
HOWEVER. THE MINIMUM LOT AREA SHALL BE 5,000 SQUARE FEET
FOR A TWO-FAMILY DWELLING IN A DWELLING USE DISTRICT.
THE MINIMUM LOT AREA SHALL BE 2.500 SQUARE FEET FOR
ANY LOT RECORDED IN THE COUNTY MAP RECORDS PRIOR TO JULY
14, 1945.
SEC. 348-816 INTENSITY.
IN A AREA DISTRICT. INTENSITY SHALL BE AS
FOLLOWS:
THE MAXIMUM NUMBER OF DWELLING UNITS PER CROSS ACRE SHALL BE
12.5. THE MAXIMUM FLOOR-AREA RATIO. SHALL BE 0.8
