ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this
"Assignment") made this 6 day of February, 2004, by and
between TRANSGATE, L.L.C., a Nevada limited liability
company ("Assignor"), having an address at 0000 Xxxx Xxx
Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxx 00000, and AEI INCOME &
GROWTH FUND 25 LLC, a Delaware limited liability company,
and AEI ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, a
Minnesota limited partnershipAEI INCOME & GROWTH FUND 23
LLC, a Delaware limited liability company, AEI INCOME &
GROWTH FUND 25 LLC, a Delaware limited liability company,
and AEI ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, a
Minnesota limited partnership (as tenants in common,
together collectively referred to as "Assignee"collectively,
"Assignee"), having an address of 0000 Xxxxx Xxxxx Xxxxx, 00
Xxxxxxx Xxxxxx Xxxx, Xx. Xxxx, Xxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Assignor is the owner of certain real property
located at 000 Xxx Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxxx (the "Property");
WHEREAS, Assignor has leased the Property to Sterling
Jewelers Inc., a Delaware corporation ("Sterling"), pursuant
to that certain Lease Agreement dated February 22, 2001, as
amended on November 1, 2001 (as amended, the "Lease"); and
WHEREAS, Assignor desires to assign its right, title
and interest in and to the Lease to AssigneeAEI Income &
Growth Fund 25 LLC, an undivided twenty-five percent (25.0%)
interest as a tenant in common; and AEI Accredited Investor
Fund 2002 Limited Partnership, an undivided seventy-five
percent (75.0%) interest as a tenant in common, and Assignee
desires to assume Assignor's right, title and interest in
and to the Lease;
NOW, THEREFORE, in consideration of the mutual
agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which
are acknowledged by each of the parties hereto, Assignor and
Assignee do hereby agree as follows:
1. Assignment. Assignor hereby gives, grants,
bargains, sells, conveys, transfers and sets over unto
Assignee, its successors and assigns, as of the date first
above written (the "Effective Date"), all of Assignor's
right, title and interest in and to the Lease.
2. Acceptance of Assignment and Assumption. Assignee
hereby accepts the foregoing assignment, and hereby assumes
and agrees to be bound by and perform all of Assignor's
obligations and liabilities to be performed and/or occurring
under the Lease on or after the Effective Date, including,
without limitation, the obligations for return of security
deposits as provided in the Lease and/or required by law,
and any and all obligations for any and all leasing
commissions, brokerage fees and similar payments which
become due and payable after the Effective Date, including,
without limitation, any and all leasing commissions,
brokerage fees and similar payments which become due and
payable in connection with the exercise of any option or
right under the Lease.
3. Indemnification. (a) Assignor hereby indemnifies
Assignee, and agrees to defend and hold harmless Assignee
from and against any and all liability, loss, damage and
expense, including without limitation reasonable attorneys'
fees, which Assignee may or shall incur under the Lease by
reason of any failure or alleged failure of Assignor to have
complied with or to have performed, before the Effective
Date, the obligations of the landlord thereunder which were
to be performed before the Effective Date.
(b) Assignee hereby indemnifies Assignor, and
agrees to defend and hold harmless Assignor from and against
any and all liability, loss, damage and expense, including
without limitation reasonable attorneys' fees, which
Assignor may or shall incur under the Lease by reason of any
failure or alleged failure of Assignee to comply with or
perform, on or after the Effective Date, all the obligations
of the landlord thereunder which are to be performed on or
after the Effective Date.
4. Successors and Assigns. The terms and conditions
of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective
successors and assigns.
5. Retained Rights. Assignee hereby agrees that Assignor
may, at Assignor's election and expense, proceed at law or
equity to collect any delinquent rents accruing under the
Lease prior to the Effective Date. Assignor hereby agrees
that Assignee shall have no obligation to collect any rent
due prior to the Effective Date under the Lease; provided,
however, that in the event Assignee is paid rent from a
tenant that has delinquent rent accruing prior to the
Effective Date, and such payment is in excess of current
rent due and payable under the Lease and any collection
costs incurred by Assignee to collect such rents, then
Assignee agrees to pay such excess amount to Assignor as
soon as reasonably practicable after the date of receipt by
Assignee.
6. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and
the same instrument.
[The remainder of this page has been intentionally left
blank. Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the day and year first set
forth above.
ASSIGNOR: TRANSGATE, L.L.C.,
a Nevada limited liability company
By: TransGate Management Corp.,
a Nevada corporation, its
managing member
By:/s/ Xxxx X Xxxxxxxx
Name: Xxxx X Xxxxxxxx
Title: President
STATE OF NEVADA )
) ss.
COUNTY OF )
The foregoing was acknowledged before me this 29th day
of January, 2004, by Xxxx X Xxxxxxxx Xx, the President of
TransGate Management Corp., a Nevada corporation, the
manager of TransGate, LLC, a Nevada 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.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State of
aforesaid, the day and year last above-written.
/s/ Xxxxxx X Xxxxxx
Notary Public
[notary stamp]
ASSIGNEE: AEI INCOME & GROWTH FUND 25 LLC,
a Delaware limited liability
company
By: AEI FUND MANAGEMENT XXI, INC.,
a Minnesota
corporation, its General Partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its
President
AEI ACCREDITED INVESTOR FUND 2002
LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI FUND MANAGEMENT XVIII, INC.,
a Minnesota corporation,
its General Partner
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
January, 2004, by Xxxxxx X. Xxxxxxx, the President of AEI
FUND MANAGEMENT XXI, INC., a Minnesota corporation, the
General Partner 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.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State of
aforesaid, the day and year last above-written.
/s/ Xxxxxxxx X Xxxxxxxxx
Notary Public
[notary stamp]
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The foregoing was acknowledged before me this ___ day
of January, 2004, by Xxxxxx X. Xxxxxxx, the President of AEI
FUND MANAGEMENT XVIII, INC., a Minnesota corporation, the
General Partner of AEI Accredited Investor Fund 2002 Limited
Partnership, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State of
aforesaid, the day and year last above-written.
/s/ Xxxxxxxx X Xxxxxxxxx
Notary Public
[notary stamp]
EXHIBIT A
Legal Description
Tract I:
Being a parcel of land in the Tenth Civil District of
Nashville, Davidson County, Tennessee, and being Lot F & a
portion of reserved parcel (81) on the Plat of Resubdivision
of Lots D,E, and F Rivergate Park of record in Plat Book
4300, page 107 and a portion of the Access, Drainage,
Utilities Easement on the Plan of Rivergate Park of record
in Plat Book 4175, page 107, Register's Office Said County
and more particularly described according to a survey by
Xxxxxx X Xxxxx RLS #1139 made December 8, 2003 as follows:
Beginning at a PK Nail (found) located in the east right-of-
way line of Two Mile Parkway (92 foot right of way), being
the southwest corner of Two Mile Partners of record in Deed
Book 6697, page 347 and being Lot E of said Plat of said
Plat of Resubdivision of Lots D, E, F Rivergate Park; Thence
with said Two Mile Partners South Line North 71 deg 23 min
11 sec East 169.98 feet to a railroad spike (found); Thence
with a cruve to te left having a central angle of 19 deg 29
min 00 sec a radius of 87.50 feet, an arc length of 29.75
feet, and a chord bearing and distance of North 61 deg 38
min 41 sec East 29.61 feet to a railroad spike (round);
Thence North 51 deg 54 min 11 sec East 16.63 feet to a
railroad spike (found); Thence North 51 deg 52 min 35 sec
East 17.50 feet to an iron pin (found) in the South Line of
the Tennessee District Council of The Assemblies of God,
Inc. of record in Deed Book 7799, page 21 and being on the
centerline of the Access, Drainage, and Utilities Easement
on said plat of Rivergate Park Plat Book 4175 page 107
Thence with said South Line of the Tennessee District
Council of The Assemblies of God, Inc. and a curve to the
left having a central angle of 36 deg 24 min 41 sec a
radius of 117.50 feet an arc length of 74.67 feet, and a
chord bearing an distance of South 56 deg 19 min 46 East
73.42 feet to an iron pin (found); Thence South 74 deg 32
min 07 sec East 54.56 feet to an ion pin (found); Thence
with a curve to the left having a central angle of 02 deg 26
min 31 sec a radius of 67.50 feet, an arc length of 2.88
feet, to an iron pin (found) said iron pin being the
northwest corner of TRU Realty Corporation of record in Deed
Book 5947 page 464 Thence with said TRU Realty Corporation
northwest line South 13 deg 01 min 22 sec West 17.50 feet to
an iron pin (found) being the northwest corner of Xxx 0 xx
xxx Xxxx xx Xxxxxxxxx Xxxx corner of record in Plat Book
5200 page 498 Thence south 35 deg 12 min 30 sec West 105.63
feet to a PK Nail (found) Thence North 54 deg 34 min West
264.43 feet to a punch hole in walk (found) in East right of
way line of said Two Mile Parkway said punch hole being
South 06 deg 52 min 08 sec West 2.11 feet from an iron pin
(found) Thence with sadi East right of way line North 18 deg
35 min 00 sec West 284.93 feet tot the point of beginning
containing 1.252 acres more or less.
Tract II:
The access, drainage and utility easements, including a
privately owned circulation road, all as shown on the
recorded play of Rivergate Park of record in Book 4175, page
107 in the Office of Register of Deeds for Davidson County,
Tennessee.
Store No
000 Xxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx
LEASE
BETWEEN
TransGate, LLC
a Nevada limited liability company
AND
STERLING JEWELERS INC
a Delaware corporation
LEASE
In consideration of the rents and covenants set forth
below, Landlord (as hereinafter defined) hereby leases to
Tenant (as hereinafter defined), and Tenant hereby leases
from Landlord, the Premises (as hereinafter defined), upon
the following terms and conditions:
ARTICLE 1
FUNDAMENTAL LEASE PROVISIONS
The provisions in this Article shall be referred to in this
Lease as the "Fundamental Lease Provisions."
1.1 Exhibits to Lease. The following exhibits are
attached to and made a part of this Lease, and are
incorporated herein by reference:
Exhibit " A ". The description of the Premises.
Exhibit "B". The site plan showing the location of the
Premises and the Building, parking areas, driveways and
common area and containing other general information
relative to the development of the Premises Site (the .'Site
Plan").
...Exhibit "C". A list of the plans and specifications
prepared and provided by Tenant and approved by Landlord,
wherein are detailed Landlord's Work (as hereinafter
defined) in the Premises. Exhibit "C" shall include the
plans and specifications for Tenant's satellite dish.
Exhibit "C- I ". The list of items which comprise
Tenant's Work (as hereinafter defined).
Exhibit "D". The plans and specifications prepared and
provided by Tenant and approved by Landlord, wherein are
detailed Tenant's exterior sign(s).
Exhibit "E". The projected cost to perform Landlord's
Work.
Exhibit "f". Tenant's Trade Fixtures which shall remain
the personal property of Tenant and may be removed upon
expiration or termination of this Lease.
1.2 Definitions. Unless otherwise defined herein,
capitalized terms used in this Lease shall have the meanings
listed in the Fundamental Lease Provisions.
Assignment Agreement: shall mean that certain
agreement between Tenant, as
assignor, and Landlord, as
assignee, whereby Tenant has
assigned to Landlord all of its
rights and interest in and to the
Contract of Purchase and Sale and
Landlord has agreed to Lease the
Premises to and develop and
construct the Premises for Tenant.
Building: shall mean the
building containing approximately
6,000 square feet of floor area and
all improvements thereto (including
Tenant's Work) to be constructed on
the Premises and as identified on
Exhibit "B" attached hereto.
Commencement Date: shall mean the earlier
of sixty (60) days after the
Delivery Date or the day that
Tenant opens for and conducts
business in the Premises.
Construction Period: shall mean the one
hundred fifty (150) day period
immediately following the date of
the closing on the acquisition of
the Premises.
Contract of Purchase
And Sale: shall mean that
certain agreement between Shoney's,
Inc., as seller, and Tenant, as
buyer, entered into on or about
January 22, 2001, whereby Tenant
has the right to purchase the
Premises.
Delivery Date: shall mean the date that
Landlord delivers the Premises to
Tenant with Landlord's Work
substantially complete such that
Tenant may .reasonably enter the
Premises to perform Tenant's Work.
Fixed Monthly Rent: 12% of the Premises Cost
(as detailed on Exhibit "E")
divided by twelve, subject to
proration and adjustment as
provided in Section 2.3.
Force Majeure: shall mean the occurrence
of one of the below listed events
which prevents, delays or hinders
the performance of any act required
hereunder: strikes, lockouts,
inability to procure materials,
failure of power, restrictive
governmental laws or regulations,
riots, insurrection, war, or any
other reason of a like nature not
the fault of the party delayed in
performing work or doing any act
required under the terms of this
Lease.
Gross Leasable Area: shall mean the number of
square feet of the Building.
Increase Date: fifth (5th)
anniversary of the Commencement
Date, and every five (5) years
thereafter, including Renewal
Terms.
Increase Percentage: ten percent {10%).
Initial Term: twenty (20) Lease
Years, and any Partial Lease Years,
commencing on the Commencement
Date.
Landlord: TransGate, L.L.C.
0000 Xxxx Xxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
FAX: (000) 000-0000
Landlord's Work: shall mean the work to be
performed by or at the direction of
Landlord in constructing the
Premises, the Building and related
improvements, as more particularly
specified in Article 15 below and
Exhibit "C".
Lease Year: shall mean a period
of twelve (12) consecutive calendar
months during the Term, the first
of which shall begin on the first
day of February next following the
Commencement Date, (unless the
Commencement Date shall be the
first day of February, in which
event the first lease year shall
begin on the Commencement Date) and
ending on the following January 31.
Partial Lease Year: shall mean the period, if
any, of fewer than twelve (12)
consecutive calendar months between
the Commencement Date and the first
day of the first Lease Year and the
period, if any, of less than twelve
(12) consecutive calendar months
between the last day of the Lease
Year and the expiration of the Term
Permitting Period: shall mean the sixty (60)
days immediately following the date
Landlord executes this Lease.
Permitted Uses: shall mean the display
and sale, at retail, of gold,
silver, diamonds, colored gemstones
and other fine jewelry, watches,
and clocks, crystal, porcelain, and
related items normally sold in
Tenant's other stores and, as
incidental thereto, the repair
and/or appraisal of the same.
Plans and Specifications: shall mean the plans and
specifications for the construction
of the Premises, a list of which is
attached hereto as Exhibit "C", as
the same may be modified by written
agreement by and between Landlord
and Tenant.
Premises: certain real
property more particularly
described in Exhibit A together
with all improvements thereon,
located at 000 Xxx Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxx-
Premises Cost: shall mean the cost to
perform Landlord's Work, which cost
is computed on Exhibit "E" attached
hereto and made a part hereof,
subject to adjustment as provided
in Article 2.3,
Premises Site: shall mean the land
described on Exhibit " A ". Renewal
Terms: two (2) terms of five (5)
year(s) each. Seller:
Sign Drawings: shall mean the plans and
specifications for Tenant's
exterior sign(s) on the Premises,
in the form of Exhibit "D' as the
same may be modified by written
agreement by and between Landlord
and Tenant.
Tenant: Sterling Jewelers Inc.
000 Xxxxx Xxxx
Xxxxx, Xxxx 00000
Attn: Real Estate Department
FAX: (000) 000-0000
With copies to:
Xxxxxx XxXxxxxx XX A
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxx, Esq.
FAX: (000) 000-0000
Tenant's Work: shall mean the work, if
any, to be performed by. or at the
direction of Tenant in fixturing
the Premises as more specifically
identified on Exhibit "C-1",
attached hereto.
Trade Fixtures: those items listed on
attached Exhibit "F", which are and
shall remain the personal property
of Tenant.
ARTICLE 2
TERM AND RENT
2.1 Term. The Initial Term of this Lease shall be as
set forth in the Fundamental Lease Provisions. Provided
Tenant is not then in default under this Lease, Tenant shall
have the option to extend the Initial Term by the number of
successive Renewal Terms described in the Fundamental Lease
Provisions by giving Landlord written notice of its election
to extend the
term of this Lease by the succeeding Renewal Term not less
than one hundred eighty (180) days prior to expiration of
the Initial Term or the then-running Renewal Term, as the
case may be. Excepting the amount of the Fixed Monthly Rent,
as adjusted, the terms and conditions of this Lease shall
apply during each Renewal Term. The Initial Term, as it may
be extended by one or more Renewal Terms, shall be
hereinafter referred to as the "Lease Term."
2.2 Intentionally Omitted.
2.3 Fixed Monthly Rent. For the use and occupancy of
the Premises, Tenant shall pay Landlord the Fixed Monthly
Rent, in advance and without demand, commencing on the
Commencement Date and continuing on the fIrst day of each
calendar month thereafter during the Lease Term, without any
offset or deduction except as specifically provided for
herein. The Fixed Monthly Rent in effect immediately prior
to the Increase Date shall increase by the Increase
Percentage on each Increase Date. Should the Lease Term
commence on a day other than the first day of a calendar
month, then the rental for such first fractional month shall
be computed on a daily basis for the period from the
Commencement Date to the end of such calendar month at an
amount equal to 1/30th of the Fixed Monthly Rent for each
day. Should the Lease Term end on a day other than the last
day of a calendar month, then the rental for such fractional
month shall be computed on a daily basis at an amount equal
to 1/30th of the Fixed Monthly Rent for each day. Tenant
shall pay Landlord the Fixed Monthly Rent in lawful money of
the United States at the address for Landlord set forth in
the Fundamental Lease Provisions or to such other persons or
at such other places as Landlord may designate in writing to
Tenant Landlord and Tenant acknowledge that the Premises
Cost computation on Exhibit "E" is an estimate, and agree to
supplement and/or amend Exhibit "E" after the Premises Cost
is actually determined. Landlord and Tenant shall
retroactively adjust the Fixed Monthly Rental payments once
the computation of Exhibit "E" has been finalized. In the
event the cost of developing and constructing the Premises,
including the Building and related improvements, increases
as a result of a change in the Plans and Specifications
requested by Tenant or an unforeseen event or circumstance
beyond the control of the parties hereto, such increase in
cost shall, at the option of Tenant, (i) be paid by Tenant;
or (ii) be added to the Premises Cost and Fixed Monthly Rent
shall be adjusted accordingly; provided, however, that if
tile additional cost of developing and constructing the
Premises is due to the gross negligence or willful
misconduct of Landlord, then Tenant shall have no liability
therefor and the Premises Cost and Fixed Monthly Rent shall
not be increased as a result thereof, such cost being the
sole responsibility of Landlord.
2.4 Additional Rent. In addition to the Fixed Monthly
Rent, as increased, Tenant shall pay to the parties
respectively entitled thereto all insurance premiums, Taxes
(as defined in Article 4), operating charges, maintenance
charges, construction costs, reasonable accounting and legal
fees, and any other charges, costs and expenses which arise
or may be contemplated under any provision of this Lease
during the Lease Term (collectively, the " Additional
Rent"). Tenant shall furnish to Landlord, promptly after
payment of any Taxes or insurance premiums, and, with
respect to any other Additional Rent, promptly upon request
of Landlord, official receipts or other satisfactory proof
evidencing payment of such Additional Rent. Upon Tenant's
failure to pay such Additional Rent on more than one
occasion during any twelve month period, where after written
notice thereof from Landlord to Tenant such second event of
failure shall
continue for a period often (10) days, Landlord shall have
the option to require Tenant to deposit with Landlord (i)
funds sufficient for the payment of the current Additional
Rent required to be paid by Tenant hereunder, and (ii) one-
twelfth of the current annual or annualized Additional Rent,
as the case may be (or those of the preceding years if the
current amounts thereof have not been fixed), in advance and
on the same day upon which the Fixed Monthly Rent is due.
2.5 Late Charge. If any installment of the Fixed
Monthly Rent, or any other payment provided for under this
Lease which is payable by Tenant, is not received by
Landlord within ten (10) days after written notice from
Landlord to Tenant that such payment is overdue, Tenant
shall pay Landlord an amount equal to 4% of the overdue
amount as a late charge (the "Charge"). Landlord and Tenant
agree that the Late Charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of
any such late payment by Tenant. Acceptance of the Late
Charge by Landlord shall not constitute a waiver of Tenant's
default, if any, with respect to the overdue amount, nor
prevent Landlord from exercising any other rights and
remedies available to Landlord under this Lease.
2.6 Interest on Overdue Amounts. The Fixed Monthly
Rent, the Additional Rent and all other amounts due Landlord
under this Lease which are not paid when due shall bear
interest at a per annum rate equal to the prime rate of
interest charged by the then largest chartered bank in the
state where the Premises is located plus 2% from the date
due until paid; provided, however, that if such rate shall
exceed the lawful rate of interest which Landlord is
entitled to charge under applicable law, then the per annum
rate of interest on any such overdue amounts shall be the
maximum rate permitted by applicable law.
2. 7 Net Lease. This Lease is what is commonly called a
"triple net lease," it being understood that Landlord shall
receive the Fixed Monthly Rent free and clear of any and all
Taxes, other Additional Rent, liens, charges, liabilities or
expenses of any nature whatsoever incurred in connection
with the ownership and operation of the Premises.
ARTICLE 3
USE OF THE PREMISES
3.1 Use of the Premises. Tenant shall use the Premises
solely for the Permitted Uses or any other lawful purpose;
provided, however, that any such use shall be subject to all
matters of record and shall not diminish the value of the
Premises or violate any existing exclusive uses then in
effect with respect to the Premises.
3.2 Condition of Premises. Subject to the due diligence
periods and contingency periods provided in this Lease,
except as otherwise provided in this Lease including, but
not limited to, Article 15 hereof, Tenant accepts the
Premises in its ''as is" condition and acknowledges that
Landlord makes no warranty with respect to the Premises.
3.3 Compliance With Law.
3.3.1 Tenant shall, at Tenant's sole expense, comply in
all material respects with all applicable laws, ordinances,
orders, rules, or regulations of any governmental
authorities and with any directive of any public officer
which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises or the use
or occupation thereof or signage thereon, including, without
limitation, any governmental law or statute, rule,
regulation, ordinance, code, policy or rule of common law
now or hereafter in effect relating to the environment,
health or safety.
3.3.2 Tenant shall not use or permit the Premises to be
used in any manner which will result in waste, reasonable
wear and tear and casualty damage (to the extent not
required to be repaired or restored by Tenant pursuant to
this Lease) excepted, or the creation of a nuisance, and
Tenant shall maintain the Premises free of any objectionable
noises, odors, or disturbances.
3.4 Environmental Compliance. Excepting acts or
omissions of Landlord or its agents, for which Tenant shall
have no liabilities, Tenant acknowledges the following:
3.4.1 Tenant shall, at its sole cost and expense at all
times during the Term, comply in all respects with the
Environmental Laws (as defined below) in its use and
operation of the Premises.
3.4.2 Tenant shall not use the Premises for the purpose
of storing Hazardous Materials (as defined below) except
those Hazardous Materials commonly used in the type of
business being conducted by Tenant on the Premises and
provided such use and storage is in full compliance with the
Environmental Laws and other applicable law, and shall not
cause the release of any Hazardous Materials.
3.4.3 Tenant shall notify Landlord promptly and in
reasonable detail in the event that Tenant becomes aware of
or suspects (i) the presence of any Hazardous Materials on
the Premises (other than any Permitted Hazardous Materials,
as defined below), or (ii) a violation of the Environmental
Laws on the Premises.
3.4.4 If Tenant uses or permits the Premises to be used
so as to subject Tenant, Landlord or any occupant of the
Premises to a claim of violation of the Environmental Laws
(unless contested in good faith by appropriate proceedings),
Tenant shall, at its sole cost and expense, immediately
cease or cause cessation of such use or operations and shall
remedy and fully cure any conditions arising therefrom.
3.4.5 At its sole cost and expense, Tenant shall (i)
immediately pay, when due, the cost of compliance with the
Environmental Laws within the Premises required as a result
of any acts or omissions of Tenant, or as otherwise required
by this Lease, and (ii) keep the Premises free of any liens
imposed pursuant to the Environmental Laws. Tenant shall, at
all times, use, handle and dispose of any Permitted
Hazardous Material in a commercially reasonable manner and
in compliance with the Environmental Laws and applicable
industry standards. Tenant shall
cooperate with Landlord in any program between Landlord and
any governmental entity for proper disposal and/or recovery
of any Permitted Hazardous Material.
3.4.6 Tenant shall indemnify, save and hold Landlord
harmless from and against any claim, liability, loss, damage
or expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of any
violation of the covenants of Tenant contained in this
Section by Tenant, or out of any violation of the
Environmental Laws by Tenant, its owners, employees, agents,
contractors, customers, guests and invitees, which indemnity
obligation shall survive the expiration or termination of
this Lease.
3.4.7 In the event that Tenant fails to comply with the
any of the foregoing requirements of this Section, after the
expiration of the cure period permitted under the
Environmental Laws, if any, Landlord may, but shall not be
obligated to (i) elect that such failure constitutes a
default under this Lease; and/or (ii) take any and all
actions, at Tenant's sole cost and expense, that Landlord
deems necessary or desirable to cure any such noncompliance.
Tenant shall reimburse Landlord for any costs incurred by
Landlord in exercising its options under this subsection
within five (5) days after receipt of a xxxx therefor.
3.4.8 Landlord shall indemnify, save and hold Tenant
harmless from and against any claim, liability, loss damage
or expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of or in any
way relating to any violation of the Environmental Laws by
or the existence or presence of Hazardous Materials on the
Premises due to the acts or omissions of Landlord, its
owners, employees, agents, contractors, invitees or
representatives, which indemnity obligation shall survive
the expiration or termination of this Lease.
3.4.9 Landlord acknowledges and covenants that in the
event that through no fault of
Tenant, Tenant's use, occupancy and enjoyment of the
Premises ("Occupancy") shall be materially interfered with
by reason of the existence or remediation of any Hazardous
Materials for a period of two (2) years or more, then Tenant
shall have the right to terminate this Lease by giving
written notice to Landlord of its election to do so,
whereupon this Lease shall automatically terminate and end
effective as of the date of such notice and neither party
shall have any further obligations hereunder; PROVIDED,
HOWEVER, Landlord may nullify Tenant's notice of termination
if at the time such notice is given Landlord shall be
diligently prosecuting the rectification of such Hazardous
Materials interference and thereafter completes the
rectification in accordance with all applicable governmental
laws, codes, regulations and requirements within one (I)
year after the date of Tenant's termination notice,
whereupon this Lease shall continue in full force and effect
in accordance with its terms. During any time period where
Tenant's Occupancy is so interfered, Landlord and Tenant
agree to work together and cooperate with one another to
rectify and remediate any Hazardous Materials existing on
the Premises and to recover any and all costs and expenses
related thereto from the party responsible for such
Hazardous Materials.
3.4.10 The provisions of this Section shall survive the
expiration or termination of the
Lease Term
Capitalized terms used in this Section and not
otherwise defined herein shall have the following meanings.
"Hazardous Materials" means any of the following as
defined by the Environmental Laws: solid wastes; medical or
nuclear waste or materials; toxic or hazardous substances;
natural gas, liquefied natural gas or synthetic fuel gas;
petroleum products or derivatives, wastes or contaminants
(including, without limitation, polychlorinated biphenyls);
paint containing lead; urea-formaldehyde foam insulation;
asbestos (including, without limitation, fibers and friable
asbestos); explosives; discharges of sewage or effluent; and
any other substance, gas or other material regulated by
federal, state, local or other governmental laws,
ordinances, or restrictions.
"Environmental Laws" means all requirements of
environmental, ecological, health, or industrial hygiene
laws or regulations or rules of common law related to the
Property, including all requirements imposed by any law,
rule, orders or regulation of any federal, state, or local
executives legislative, judicial, regulatory, or
administrative agency, board, or authority which relate to
(i) noise; (ii) pollution or protection of the air, surface
water, ground water, or land; (iii) solid, gaseous, or
liquid waste generation, treatment, storage, disposal, or
transportation; (iv) exposure to Hazardous Materials; or (v)
regulation of the manufacture, processing, distribution and
commerce, use, or storage of Hazardous Materials.
"Permitted Hazardous Material" means any Hazardous
Materials which are necessary and commercially reasonable
for the provision of any good or service related to the
Permitted Uses, provided the use and storage thereof is in
full compliance with the Environmental Laws and other
applicable laws.
3.5 Permits and Licenses. After Tenant's acceptance of
Landlord's delivery of the Premises, Tenant shall be solely
responsible to apply for and secure any building permit or
permission of any duly constituted authority for the purpose
of doing any of the things which Tenant is required or
permitted to do under the provisions of this Lease.
ARTICLE 4
TAXES AND UTILITIES
4.1 Payment of Taxes. Tenant shall pay the Taxes (as
defined in the following Section) applicable to the Premises
during the Lease Term. Landlord shall provide Tenant with
copies of any tax bills applicable to the Premises promptly
after receipt of such bills. All such payments shall be made
at least ten (10) days prior to the delinquency date of such
payment. Tenant shall promptly furnish Landlord with
satisfactory evidence that such Taxes have been paid. If any
such Taxes paid by Tenant shall xxxxx any period of time
prior to, or after the expiration of, the Lease Term,
Landlord shall reimburse Tenant to the extent required. If
Tenant
shall fail to pay any such Taxes, Landlord shall have the
right (but not the obligation) to pay the same, in which
case Tenant shall repay such amount plus any penalties and
interest resulting therefrom to Landlord within five (5)
days after receipt of a xxxx therefor.
4.2 Definition of "Taxes". As used herein, the term
shall include:
4.2.1 any form of real estate tax or assessment,
special taxes and assessments, ad valorem tax or gross
receipts tax imposed by any authority having the direct or
indirect power to tax, including any city, county, state, or
federal government, or any school, agricultural, sanitary,
fire, street, drainage, or other improvement district
thereof, on, against or with respect to the Premises, this
Lease, any legal or equitable interest of Landlord or any
superior landlord in the Premises, or in the real property
of which the Premises are a part, Landlord's right to rent
or other income therefrom and Landlord's business of leasing
the Premises;
4.2.2 any tax, fee, levy, assessment, penalty, interest
or other charge (i) in substitution of, partially or
totally, any tax, fee, levy, assessment, or charge
hereinabove included within this definition of Taxes, or
(ii) any tax or increase in any tax which is imposed as a
result of a transfer, either partial or total, of Landlord's
interest in the Premises to Tenant, or (iii) any tax or
increase in tax which is imposed by reason of this
transaction, any modifications or changes hereto, or any
transfers hereof; and
4.2.3 all inspection fees, taxes, bonds, permits,
certificates, assessments and sales, use, property .or other
taxes, fees or tolls of any .nature whatsoever (together
with any related interest to or penalties) now or hereafter
imposed against Landlord or Tenant by any federal, state,
county or local governmental authority upon or with respect
to the Premises, or the use thereof, upon earnings arising
therefrom or upon or with respect to this Lease; and
4.2.4 all taxes assessed against and levied upon trade
fixtures, furnishings, equipment, and all other personal
property of Tenant contained In the Premises or elsewhere,
which Tenant , shall cause to be separately assessed and
billed directly to Tenant.
Tenant shall pay when due, and indemnify and hold Landlord
harmless from and against, any Taxes. Notwithstanding the
foregoing, the term shall not include any general income
taxes, inheritance taxes, and estate taxes imposed upon
Landlord.
4.3 Tenant's Right to Contest Taxes.
4.3.1 Tenant shall have the right, at its sole cost and
expense, to contest the amount or validity, in whole or in
part, of any Taxes by appropriate proceedings diligently
conducted in good faith, but no such contest shall be
carried on or maintained by Tenant after the time limit for
the payment of any Taxes unless Tenant shall (i) pay the
amount involved under protest; (ii) procure and maintain a
stay of all proceedings to enforce any collection of any
Taxes, together with all penalties, interest, costs and
expenses, by a deposit of a sufficient sum of money, or by
such undertaking, as may be required or permitted by law to
accomplish such stay; or (iii)
deposit with Landlord, as security for the performance by
Tenant of its obligations hereunder with respect to such
Taxes, 120% of such contested amount or such other
reasonable security as may be reasonably demanded by
Landlord to insure payment of such contested Taxes and all
penalties, interest, costs and expenses which may accrue
during the period of the contest. Upon the termination of
any .such proceedings, Tenant shall pay the amount of such
Taxes or part thereof, as finally determined in such
proceedings, together with any costs, fees (including all
reasonable attorneys' fees and expenses), penalties or other
liabilities in connection therewith; provided, however, that
if Tenant has deposited cash or cash equivalents with
Landlord as security under clause (iii) above, then, so long
as no default exists under this Lease, Landlord shall
arrange to pay such Taxes (or part thereof) together with
the applicable costs, fees and liabilities as described
above out of such cash or cash equivalents and return any
unused balance, if any, to Tenant. Otherwise, Landlord shall
return to Tenant all amounts, if any, held by or on behalf
of Landlord which were deposited by Tenant in accordance
with such clause (iii). In the event enforcement proceedings
are commenced with respect to any unpaid Taxes during a
contest by Tenant, Landlord shall have the right to pay all
amounts which are subject to such enforcement proceedings
and Tenant shall reimburse Landlord for such amounts within
five (5) days after receipt of written demand therefor from
Landlord. Tenant shall indemnify and hold harmless Landlord
from any increase in Taxes resulting from Tenant's exercise
of its right to contest Taxes.
4.3.2 Tenant shall have the right, at its cost .and
expense, to seek a reduction in the valuation of the
Premises as assessed for tax purposes and to prosecute any
action or proceeding, in connection therewith. Provided
Tenant is not in default hereunder, Tenant shall be
authorized to retain any tax refund of any tax paid by
Tenant.
4.3.3 Landlord agrees that whenever Landlord's
cooperation is required in any proceeding brought by Tenant
to contest any tax, Landlord will reasonably cooperate
therein, provided same shall not entail any cost, liability
or expense to Landlord. Tenant shall pay, indemnify and save
Landlord harmless of and from, any and all liabilities,
losses, judgments, decrees, costs and expenses (including
all reasonable attorneys' fees and expenses) in connection
with any such contest and shall, promptly after the final
settlement, fully pay and discharge the amounts which shall
be levied, assessed, charged or imposed or be determined to
be payable therein or in connection therewith, and Tenant
shall perform and observe all acts and obligations, the
performance of which shall be ordered or decreed as a result
thereof. No such contest shall subject Landlord to the risk
of any civil liability or the risk of any criminal
liability, and Tenant shall give such reasonable indemnity
or security to Landlord as may reasonably be demanded by
Landlord to insure compliance with the foregoing provisions
of this Section.
4.4 Payment of Utilities. Tenant shall pay to the
utility companies or other parties entitled to payment the
cost of all water, heat, air conditioning, gas, electricity,
telephone, and other utilities and services provided to or
for the Premises, including, without limitation, connection
fees (unless provided for on Exhibit "F") and taxes thereon.
ARTICLE 5
INSURANCE AND INDEMNIFICATION
5.1 Tenant's Insurance. From and after taking
possession of the Premises, Tenant shall carry and maintain,
at its sole cost and expense, the following types and
amounts of Insurance:
Insurance Type Amount of Coverage Risks Covered
Commercial General $1,000,000 per occurrence and personal injury, bodily
Liability $2,000,000 in the aggregate injury property damage and
per location contractual liability
Property Damage full replacement value "all risk",including sprinkler
(including earthquake damage
and flood if required by
Landlord)
Business Interruption not less than 12 installments loss of earnings by at least
Fixed of Monthly Rent the least the perils of fire
and lightning,extended
coverage, vandalism,
malicious mischief and
sprinkler leakage
Worker's compensation as required by law
Boiler and Machinery in an amount reasonably acceptable
to Landlord
5.2 Policy Form.
5.2.1 Tenant shall obtain all policies of insurance
required by Section 5.1 from insurance companies reasonably
acceptable to Landlord which are qualified and admitted to-
do business in the jurisdiction where the Premises are
situated. All such policies shall be issued in the name of
Tenant, and, if requested by Landlord, Landlord, and any
mortgagee or beneficiary of Landlord or such other parties
as required under any matter of record, shall also be named
as additional insureds. In addition, all such policies
providing coverage for physical damage shall include loss
payee and mortgagee endorsement in favor of Landlord and
Landlord's mortgagee or beneficiary, respectively and as
applicable. The Tenant shall cause copies of such policies
of insurance or originally executed certificates thereof to
be delivered to Landlord prior to Landlord's execution of
this Lease, and not less than thirty (30) days prior to any
renewal thereof. As often as any such policy shall expire or
terminate, Tenant shall procure and maintain renewal or
additional policies with like terms. None of such policies
shall contain any co- insurance requirements and all such
policies shall provide for written notice to Landlord and
any mortgagee or beneficiary of Landlord not less than
thirty (30) days prior to any modification,
cancellation, lapse, or reduction in the amounts of
insurance, and shall further provide that any loss otherwise
payable thereunder shall be payable notwithstanding any act
or negligence of Landlord or Tenant which might, absent such
provision, result in a forfeiture of all or part of the
payment of such loss. All general liability, property
damage, and other casualty policies shall be written on an
occurrence basis as primary policies, not contributing with
or in excess of coverage which Landlord may carry. The
insurance limits set forth in this Article 5 are subject to
such reasonable increases as requested by Landlord.
5.2.2 Tenant's obligations to carry the insurance
provided for above may be brought within the coverage of an
"umbrella" policy or policies of insurance carried and
maintained by Tenant; provided, however, that such policy or
policies shall (i) have limits of not less than $10,000,000,
(ii) name Landlord and any mortgagee or beneficiary of
Landlord as additional insureds as their interests may
appear, and (iii) provide that the coverage afforded
Landlord will not be reduced or diminished by reason of the
use of such blanket policies. Tenant agrees to permit
Landlord at all reasonable times to inspect any policies of
insurance of Tenant which Tenant has not delivered to
Landlord.
5.3 Subrogation-Waiver. Landlord (for itself and its
insurer) hereby waives any rights, including rights of
subrogation, and Tenant (for itself and its insurer) hereby
waives any rights, including rights of subrogation, each may
have against the other on account of any loss or damage
occasioned to Landlord or Tenant, as the case may be, to
their respective property, the Premises or its contents that
are caused by or result from risks insured against under any
insurance policies required to be carried by the parties
under this Lease or carried by the parties hereto and in
force at the time of any such damage. The foregoing waivers
of subrogation shall be opera~e only so long as available in
the jurisdiction where the Premises are located and so long
as no policy of insurance is invalidated thereby.
5.4 Payment of Insurance. In the event that Tenant
shall fail to obtain the insurance policies required
hereunder or to pay the premiums due for the insurance
policies required hereby, Landlord shall have the right, but
not the obligation, to procure or to pay the same in which
case Tenant shall repay such amount plus any penalties or
additional amounts resulting therefrom to Landlord within
five (5) days after receipt of a xxxx therefor.
5.5 Insurance Use Restrictions. Tenant shall not carry
any stock or goods or do anything in, on, or about the
Premises which will substantially increase the insurance
rates upon the building of which the Premises are a part.
5.6 Indemnification.
5.6.1 Subject to Subsection 5.6.3 below, Tenant shall
indemnify Landlord for, defend Landlord against, and save
Landlord harmless from any liability, loss, cost, injury,
damage or other expense or risk whatsoever, including
reasonable attorneys' fees, that may occur or be claimed by
or with respect to any person(s) or property on or about the
Premises and resulting directly or indirectly from:
(a) the use, occupancy, possession, operation,
maintenance or management of the Premises by
Tenant or other persons claiming through or under
Tenant, or their respective agents, employees,
licensees, invitees, guests or other such persons;
(b ) any work or thing done by Tenant, its
employees, agents or licensees, in respect of
construction of, in or to the Premises or any part
of the improvements now or hereafter constructed
on the Premises ( other than work by Landlord);
(c) the condition, including environmental conditions
(unless such conditions were pre-existing or
caused by a party other than Tenant), of the
Premises or any part thereof;
(d) any negligence on the part of Tenant or any of its
agents, contractors, servants, employees,
licensees or invitees;
(e) any accident, injury or damage to any person or
property occurring in, on or about the Premises or
any part thereof including any sidewalk adjacent
thereto.
5.6.2 [Intentionally Omitted]
5.6.3 Landlord shall indemnify and save Tenant,
harmless from and against any and all claims, demands,
actions, damages, liability and expense, including
reasonable attorneys' fees, in connection with the loss,
damage, or injury to persons or property whether for
injuries to persons, or loss of life, or damage to property,
arising in connection with the negligence or intentional
misconduct of the Landlord, Landlord's agents, employees, or
contractors.
ARTICLE 6
MAINTENANCE AND REP AIRS
6.1 Tenant's Obligations.
6.1.1 Tenant shall, at its sole cost and expense,
maintain in good repair, order, and serviceable condition
the Premises and every part thereof, including, without
limitation, every part of the interior and exterior portions
of the Building, including its roof, walls, all windows,
doors, storefronts, plate glass, interior walls, and
structural elements thereof and all painting thereof; all
plumbing, ventilation, heating, air conditioning, and
electrical systems and equipment in, on, or exclusively
serving the Premises; and all exterior improvements
including, without limitation, landscaping, light poles,
signage and parking lot areas which are part of the
Premises. Tenant shall be obligated to make replacements at
the Premises when reasonably necessary and such replacements
shall be, to the extent reasonably practicable, with
materials of a quality comparable to those initially
installed. Subject to Landlord's satisfaction of the
conditions set forth in Section 6.2.1, Tenant shall not make
any claim or demand upon or bring any action
against Landlord for any loss, cost, injury, damage or
expense caused by any failure or defect, structural or non-
structural, of the Premises or any part thereof,
6.2 Landlord's Obligations, Excepting Landlord's duties
and obligations under Article 15 hereof, Landlord shall have
no obligation to repair and maintain the Premises, nor any
improvements or equipment thereon, whether interior or
exterior, structural or nonstructural, ordinary or
extraordinary. Except as otherwise provided in this Lease,
Tenant expressly waives the benefit of any statute or law
now or hereafter in effect which would otherwise afford
Tenant the right to terminate this Lease because of
Landlord's failure to keep the Premises in good order,
condition, and repair, or the right to repair and offset the
cost related thereto against rent.
6,2.1. Landlord shall obtain in the name of Tenant and
Landlord warranties to the, extent available, on all
materials, fixtures, and equipment incorporated in or on the
Premises (the "Warranties"). Further, in the event Tenant is
not deemed a third-party beneficiary or a direct assignee of
the contract(s) Landlord enters into with its contractors
("Landlord's Contractor's") in connection with Landlord's
Work, Landlord shall take such action as may be reasonably
necessary to enable Tenant to make any demand upon or claim
upon or bring any action against Landlord's Contractors (i)
for any loss, cost, injury, damage or other expense caused
by any failure or defect, structural or non-structural, of
the Premises or any part thereof or (ii) to enforce the
Warranties.
6.3 Landlord's Rights. If Tenant refuses or neglects to
make repairs or maintain the Premises, or any part thereof,
in a manner reasonably satisfactory to Landlord, without
prejudice to any other remedy Landlord may have hereunder,
upon giving Tenant ten (10) days prior written notice,
Landlord shall have the right to enter the Premises and
perform such maintenance or make such repairs on behalf of
and for the account of Tenant. In the event Landlord so
elects, Tenant shall pay the cost of such repairs,
maintenance, or replacements within five (5) days following
receipt of a xxxx therefor. Tenant agrees to permit Landlord
or its agent to enter the Premises, upon reasonable notice
to Tenant and in the presence of Tenant's store manager
during normal business hours, for the purpose of inspecting
the Premises. Provided Landlord uses its best efforts to
notify Tenant, Landlord shall have the right to enter the
Premises in the event of an emergency.
ARTICLE 7
ALTERATIONS
7 .1 Consent to Alterations. Tenant may make any
interior non-structural alterations, replacements,
additions, changes and improvements to the Premises that
Tenant, in its sole discretion, deems advisable. Subject to
the prior written consent of Landlord, which consent shall
not be unreasonably withheld, Tenant may, at its sole cost
and expense, make any alterations, replacements, additions,
changes, and improvements (collectively referred to in this
Article as "Alterations") to the Premises, other than
interior non-structural Alterations, as it may find
necessary or convenient for its purposes, together with
copies of all architectural plans and
specifications relating to any such Alteration.
Notwithstanding the foregoing, Landlord's consent with
respect to any structural Alterations to the Premises,
including the foundations, structural walls, roof, roof
membrane, utilities and/or building systems, may be
conditioned upon Tenant's removing any such Alterations upon
the expiration or termination of the Lease Term and
restoring the Premises to the condition which existed on the
date Tenant took possession, subject to normal wear and
tear.
7.2 Removal of Alterations. Except as set forth in
Subsection 7.2.1 below, all Alterations made on the Premises
shall become the property of Landlord at the expiration or
termination of the Lease Term and shall be surrendered with
the Premises.
7.2.1 All signs, furnishings, trade fixtures,
inventory, equipment and other removable property, including
but not limited to Tenant's Trade Fixtures, as listed on
Exhibit "F" attached hereto, installed in or on the Premises
by Tenant, shall remain the personal property of Tenant,
shall not be subject to any Landlord's lien or lien or
security interest against the property of Landlord, and
shall be removed by Tenant not later than fifteen (15) days
after the termination or expiration of this Lease, provided
that Tenant shall repair any damage caused by removal of its
personal property or vault or which is structural in nature.
If, however, any such personal property of Tenant is not
removed on or before the fifteenth (15th) day following the
termination of this Lease, Landlord shall provide written
notice to Tenant and if such property is not removed within
ten (10) days of receipt of such notice such property,
Landlord may remove and store such property at Tenant's cost
and expense.
7.3 .Alterations Required by Law. Subsequent to
Tenant's acceptance of Landlord's delivery of the Premises,
Tenant shall, at its sole cost and expense, make any
Alteration, structural or otherwise, to or on the Premises,
or any part thereof, which may be necessary or required by
reason of any law, rule, regulation, or order promulgated by
competent government authority.
7.4 General Conditions Relating to Alterations-. Any
Alteration shall be subject to the following conditions:
7.4.1 No Alteration shall be undertaken until Tenant
shall have procured and paid for all required permits and
authorizations of all municipal departments and governmental
subdivisions having jurisdiction.
7.4.2 [Intentionally Omitted]
7.4.3 Any Alteration shall be made promptly and in a
good workmanlike manner, by properly qualified and licensed
personnel, and in compliance with all applicable permits and
authorizations and building and zoning laws and all laws,
and in accordance with the orders, rules and regulations of
the Board of Fire Insurance Underwriters and any other body
hereafter exercising similar functions having or asserting
jurisdiction over the Premises.
7.4.4 No Alteration shall tie-in or connect the
Premises or any improvements thereon with any property
outside the Premises without the prior written consent of
Landlord.
7.4.5 No Alteration shall reduce the value of the
Premises or impair the structural integrity of any building
comprising a part of the Premises.
7.4.6 [Intentionally Omitted]
7.5 In connection with Alterations or otherwise,
Tenant shall do all things reasonably necessary to prevent
the filing of any liens or encumbrances against the
Premises, or any part thereof, or upon any interest of
Landlord or any mortgagee or beneficiary under a deed of
trust or any ground or underlying lessor in any portion of
the Premises, by reason of labor, services or materials
supplied or claimed to have been supplied to Tenant, or
anyone holding the Premises, or any part thereof, through or
under Tenant. If any such lien or encumbrance shall at any
time be filed against all or any portion of the Premises,
Tenant shall either cause same to be discharged of record
within twenty (20) days after the date of filing of same or
Tenant's receipt of written notice from Landlord or, if
Tenant in good faith determines that such lien should be
contested, Tenant shall either (i) bond over such lien in
accordance with applicable law in an amount sufficient to
remove the subject liens as a matter of record, or (ii)
furnish such security as Landlord shall determine to be
necessary and/or required to prevent any foreclosure
proceedings against all or any portion of the Premises
during the pendency of such contest. If Tenant shall rail to
discharge or bond over such lien or encumbrance or fail to
furnish such security within such period, then, in addition
to any other right or remedy of Landlord resulting from said
default of Tenant, Landlord may, but shall not be obligated
to, discharge the same either by paying the amount claimmed
to be due or by procuring the discharge of such lien by
giving security or in such other manner as is or may be
prescribed by law, and Tenant agrees to reimburse Landlord
within five (5) days after demand for all costs, expenses,
and other sums of money spent in connection therewith.
7.6 Signs. Tenant shall have the right to install and
maintain a sign or signs on all fascia of the Premises. In
addition, Tenant shall have the right to install a sign on
the rear of the Premises. All such signs shall comply with
all requirements of (i) appropriate governmental
authorities; and (ii) agreements or restrictions of record
(or disclosed to Tenant before its execution of this Lease)
running with the Premises. All necessary permits, licenses
or approvals required by agreements or restrictions
identified in item (ii) of the previous sentence shall be
obtained by Tenant. Tenant shall maintain its signs in good
condition and repair at all times, and shall save the
Landlord harmless from injury to person or property arising
from the erection and maintenance of said signs. Upon
vacating the Premises, Tenant shall remove all signs and
repair all damage caused by such removal including restoring
areas occupied by the Signs to the extent reasonably
practicable to the condition existing prior to such removal.
Landlord covenants and warrants that it has approved
Tenant's signs and the Sign Drawings attached hereto as
Exhibit D prior to or simultaneously with its execution of
this Lease.
ARTICLE 8
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD
8.1 Obligation to Rebuild. If any portion of the
Premises is damaged or destroyed by fire or other casualty,
Tenant shall forthwith give notice thereof to Landlord.
Tenant shall promptly obtain an estimate from a licensed
architect or contractor of the cost to complete such repair,
restoration, rebuilding or replacement, and Tenant shall, at
its sole cost and expense, promptly repair, restore, rebuild
or replace the damaged or destroyed improvements, fixtures
or equipment, and complete the same as soon as reasonably
possible, to the condition they were in prior to such damage
or destruction, except for such changes in design or
materials as may then be required by law. In such event,
Landlord shall, to the extent and at the times the proceeds
of the insurance are made available to Landlord, and only so
long as Tenant shall not be in default under this Lease,
reimburse Tenant for the costs of making such repairs,
restoration, rebuilding and replacements as they are
completed, but not more often than once each month, upon
receipt of a written request therefor, which request shall
be accompanied by a certification from Tenant's architect
certifying as to completion of the work for which
reimbursement is being requested. To the extent, if any,
that the proceeds of insurance made available by Landlord
are insufficient to pay the entire cost of making such
repairs, restoration, rebuilding and replacements, Tenant
shall pay the remainder. Any surplus of insurance proceeds
over the cost of restoration, net of all reasonable expenses
incurred by Landlord in connection with the administration
thereof, shall be promptly paid over to Landlord. Tenant
hereby waives any statutory right relating to casualties, it
being understood and agreed by the parties that the
provisions of this Article 8 shall govern and control in all
events.
8.1.1 Notwithstanding the foregoing, in the event
Tenant is unable to obtain any necessary; governmental
approvals, authorizations or permits, despite Tenant's
diligent pursuit of same, three hundred sixty (360) calendar
days from the date of such fire or casualty (such period not
to include unreasonable delays caused by Tenant), Tenant
shall have the option to terminate this Lease. In the event
Tenant elects to so terminate, Tenant shall pay to Landlord
the difference, if any, between the insurance proceeds
received by Landlord and the unamortized portion of the
Premises Cost
8.2 Casualty During Last Eighteen (18) Months.
Notwithstanding anything to the contrary in this Article 8,
if the Premises is damaged or destroyed by fire or other
casualty during the last eighteen (18) months of the Initial
Term or the then-running Renewal Term such that twenty-five
percent (25%) or more of the Premises are rendered unuseable
by Tenant, Tenant may elect not to rebuild and to terminate
this Lease; provided that Landlord shall receive insurance
proceeds in the full amount of the casualty loss and the
difference, if any, between the insurance proceeds received
by Landlord and the unamortized portion of the Premises
Cost.
8.3 Intentionally Omitted.
8.4 Insurance Proceeds. Notwithstanding anything to the
contrary contained herein, any reference to casualty
insurance and/or insurance proceeds shall mean insurance
payable with respect to the Building on the Premises. Any
insurance with respect to Tenant's Trade Fixtures
or other personal property of Tenant shall be, and remain,
the property of Tenant, notwithstanding anything to the
contrary herein.
ARTICLE 9
EMINENT DOMAIN
9.1 Total Taking. If the entire Premises are taken
under the power of eminent domain by any public or quasi-
public authority, this Lease shall terminate and expire as
of the date of such taking, and upon Tenant's payment to
Landlord of all rents accruing through such date, Landlord
and Tenant shall each thereafter be released from any
further liability accrued under this Lease. In the event
that Tenant shall have paid any rent for any period beyond
the date of such taking, Landlord shall reimburse same, pro
rata.
9.2 Partial Taking. In the event that (i) more than 25%
of the Gross Leasable Area of the Premises, including the
parking area serving the Premises, is taken under the power
of eminent domain by any public or quasi-public authority,
(ii) by reason of any appropriation or taking, regardless of
the amount so taken, the remainder of the Premises is not
one undivided parcel of property, or (iii) as a result of
any taking, regardless of the amount so taken, the remainder
of the Premises is rendered unsuitable for the continued
operation of Tenant's business, either Landlord or Tenant
shall have the right to terminate this Lease as of the date
Tenant is required to vacate a portion of the Premises, by
giving the other notice of such election within thirty (30)
days after receipt by Tenant from Landlord of written notice
that the Premises have been so appropriated or taken.
Landlord agrees immediately after learning of any
appropriation or taking to give to Tenant notice in writing
thereof. In the event of such termination, upon Tenant's
payment to Landlord of all rents accruing through such date,
both Landlord and Tenant shall thereupon be released from
any liability thereafter accruing hereunder. If both parties
elect not to terminate this Lease, Tenant shall remain in
that portion of the Premises not so taken and Tenant, at
Tenant's sole cost and expense, shall restore the remaining
portion of the Premises as soon as possible to a complete
unit of like quality and character as existed prior to such
taking. Landlord agrees to reimburse Tenant for the cost of
restoration, but in no event shall Landlord's obligation to
reimburse Tenant for the cost of restoring the remaining
portion of the Premises exceed the amount of award of
compensation that Landlord receives for a partial taking of
that portion of the Premises resulting in the need for
restoration. So long as this Lease is not terminated in the
manner provided above, there shall be an equitable
adjustment of the rent payable by Tenant hereunder by reason
of such partial taking. Tenant hereby waives any statutory
rights of termination which may arise by reason of any
partial taking of the Premises under the power of eminent
domain.
9.3 Distribution of Award. The entire award or
compensation in such eminent domain proceeding, whether for
a total or partial taking or for diminution in the value of
the leasehold or for the fee, shall be distributed to
Landlord; provided however, that Tenant may apply for award
of the value of Tenant's Trade Fixtures or other personal
property, loss of income, relocation costs, improvements and
the value of the leasehold interest created hereby,
according to the law in effect in the jurisdiction where the
Premises are located, so long as such
award does not diminish the value of Landlord's award. In
the event that a separate award is not made to Tenant,
Tenant shall be entitled to share in any award made to
Landlord, as long as Landlord first receives the fair market
value of the real property upon which the Premises are
located plus the unamortized Premises Cost.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 Right of Assignment and Subletting.
10.1.1 Tenant shall have the free right to assign this
Lease or sublet the Premises provided Tenant remains liable
under this Lease and provided that the proposed assignee's
intended use does not violate any protected, exclusive or
restricted uses then in effect with respect to the Premises.
Notwithstanding the foregoing, Tenant shall not mortgage,
pledge or hypothocate this Lease or Tenant's interest in and
to the Premises or any part thereof without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld.
10.1.2 Any permitted assignee, subtenant, transferee,
licensee, concessioner, or mortgagee shall be bound by, and
shall assume and perform all of the terms, covenants, and
conditions of this Lease from and after the date of any such
transfer.
10.2 No Release of Tenant. No assignment shall release
Tenant of Tenant's obligation or alter the primary liability
of Tenant to pay the rent and to perform all other
obligations to be perfonne8by Tenant hereunder. The
acceptance of rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision
hereof. fu the event of default by any assignee of Tenant,
or any successor Tenant, in the performance of any of the
terms hereof, Landlord may, subject to Landlord's duty to
mitigate and take all reasonable efforts to relet the
Premises, proceed directly against Tenant without the
necessity of exhausting remedies against such assignee.
ARTICLE 11
DEFAULT; REMEDIES
11.1 Default. The occurrence of anyone or more
constitute a default by Tenant under this Lease:
11.1.1 [Intentionally Omitted]
11.1.2 The failure by Tenant to make any payment of
Fixed Monthly Rent, Additional Rent or any other payment
required to be made by Tenant hereunder, where after written
notice
thereof from Landlord to Tenant, such failure shall continue
for a period often (10) days.
11.1.3 Except as otherwise provided in this Lease, the
failure by Tenant to observe or perform any of the non-
monetary covenants, conditions, or provisions of this Lease
to be observed or performed by Tenant, where such failure
shall continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's noncompliance is
such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said 30-day
period and thereafter diligently prosecutes such cure to
completion and, in any event, completes the cure within
ninety (90) days.
11.1.4 Institution by or against Tenant of any
bankruptcy, insolvency, reorganization, receivership or
other similar proceeding involving the creditors of Tenant,
which, if instituted against Tenant, is not dismissed within
sixty (60) days after the commencement thereof.
11.1.5 The issuance or filing of any judgment,
attachment, levy, garnishment or the commencement of any
related proceeding or the commencement of any other judicial
process upon or with respect to all or substantially all of
the assets of Tenant, or the Premises.
11.1.6 [Intentionally Omitted]
11.1.7 Bankruptcy, dissolution, termination of
existence, insolvency, business failure or assignment for
the benefit of creditors of or by Tenant. In the event of
bankruptcy by Tenant, this Lease will be governed in
accordance with the determinations of the Bankruptcy Court.
11.1.8 Any statement, representation or information
made or furnished by or on behalf of Tenant to Landlord in
connection with or to induce Landlord to enter into this
Lease which is proved to be materially false or misleading
when made or furnished.
11.2 Remedies. Upon the occurrence of a default by
Tenant pursuant to the foregoing Subsection or otherwise
under this Lease, Landlord may at any time thereafter, with
or without notice or demand and without limiting Landlord in
the exercise of any right or remedy' which Landlord may have
by reason of such default:
11.2.1 Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease and
the term hereof shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such
event, Landlord shall be entitled to recover from Tenant all
damages permitted by applicable law.
11.2.2 Maintain Tenant's right to possession of the
Premises by any lawful means, in which case this Lease and
the term hereof shall continue in effect whether or not
Tenant shall have vacated or abandoned the Premises. In such
event Landlord shall be entitled to enforce all of
Landlord's rights and remedies under the Lease, including
the right to recover the rent as it becomes due hereunder.
Notwithstanding the foregoing, the Landlord shall use
reasonable efforts to mitigate its damages to the extent
required by law.
11.2.3 If Tenant, after taking possession of the
Premises, defaults under this Lease, Tenant shall pay
Landlord Fixed Monthly Rent until such time as Landlord
relets the Premises, so long as Landlord makes all
reasonable efforts to mitigate its damage and relet the
Premises. Further, from the date Landlord relets the
Premises until the expiration of the Term, or the then
running renewal term, Tenant shall pay Landlord, as it
becomes due, the difference between the rental amount
obtained by Landlord upon such reletting the Premises (which
rental amount shall be upon commercially reasonable terms)
and the Fixed Monthly Rent. In the event the rental amount
obtained by Landlord upon such reletting is greater than the
Fixed Monthly Rent, such excess amount shall be for the
benefit of Tenant and applied to any future amounts owed by
Tenant.
11.2.4 Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions
of the jurisdiction where the Premises are located.
11.2.5. Recover from Tenant, as an element of its
damages, the cost of reletting the Premises, including, but
not limited to, reasonable brokerage fees, attorneys' fees,
retrofit costs and other expenses of mitigation.
11.3 Cumulative Remedies. Except as specifically
provided herein to the contrary, no remedy or election
hereunder shall be deemed exclusive but shall, wherever
possible, be cumulative with all other remedies provided in
this Article or otherwise available at law or in equity
ARTICLE 12
REPRESENTATIONS AND WARRANTIES; FINANCIAL REPORTING
12.1 Representations and Warranties. To induce Landlord
to enter into this Lease, Tenant represents and warrants to
Landlord as follows:
12.1.1 This Lease is an enforceable obligation of
Tenant.
12.1.2 Tenant is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as such terms
are defined in the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder).
12.1.3 The financial statements of Tenant delivered to
Landlord are true and correct in all material respects, have
been prepared in accordance with generally accepted
accounting principles, and fairly present the respective
financial conditions of the subjects thereof as of the
respective dates thereof. No materially adverse change has
occurred in the financial conditions reflected therein since
the respective dates thereof.
12.1.4 There are no actions, suits or proceedings
pending, or to the best of Tenant's knowledge, threatened,
against or affecting it or the Premises which, if adversely
determined,
would materially impair the ability of tenant to satisfy
their obligations under or relating to this Lease.
12.1.5 Tenant is not in default under any obligation
for the payment of borrowed money, for the deferred purchase
price of property or for the payment of any rent under any
lease agreement, which, either individually or in the
aggregate would adversely affect the financial condition of
Tenant, or the ability of Tenant to perform its obligations
hereunder, or Comply with the terms of this Lease.
12.2 Financial Statements. Tenant has furnished certain
financial statements to Landlord, which statements
completely and accurately present the financial condition of
Tenant on the dates thereof. There has been no material
adverse change in business. property or condition of Tenant
since the date of such financial statements. Tenant is not
insolvent within the meaning of Section 548(a)(2)(B) of the
United States Bankruptcy Code or any other federal or state
law Using or defining such teI111, and will not be rendered
insolvent by the transactions contemplated by this Lease.
ARTICLE 13
[Intentionally Omitted]
-ARTICLE 14
[IntentionallyOmitted]
ARTICLE 15
CONSTRUCTION
15.1 Permits. Landlord shall use its diligent efforts
to obtain all necessary governmental and quasi-governmental
permits and approvals (collectively the "Permits") on or
before the expiration of the Permitting Period. Once
Landlord has secured all necessary Permits it shall provide
Tenant with written notice (the "Permit Approval Notice").
15.2 Landlord's work After having obtained the Permits,
Landlord shall construct the Premises and related
improvements on the Premises Site on a turnkey basis at no
Cost to Tenant, in accordance with the Plans and
Specifications attached hereto as and in accordance with the
zoning, building, environmental, health and safety codes of
the governmental units in which the Premises are situated
("Landlord's Work"). Landlord's Work shall be substantially
completed, excepting Punchlist Items (as hereinafter
defined), and Possession of the completed Premises shall be
delivered to Tenant for the commencement of Tenant's Work
within the
Construction Period, delays due to Force Majeure events
excepted. Tenant shall be deemed to have accepted the
Premises provided Landlord's Work is substantially complete,
excepting Punchlist Items which Landlord shall be obligated
to complete as set forth in Section 15.4, and provided
further that Tenant is able to perform Tenant's Work without
unreasonable interference by Landlord. Conditioned upon
Tenant's providing Landlord reasonable assurance that
Tenant's placement of a satellite dish on the roof of the
Premises will not void applicable roof warranties, Tenant
shall have the right to install on the roof of the Premises
a satellite dish in accordance with plans and specifications
set forth on Exhibit "C". Upon expiration or earlier
termination of this Lease, Tenant shall remove any satellite
dish and related equipment installed on the roof of the
Premises and repair any damage caused in connection
therewith.
15.3 Delivery Date Notice. Landlord shall give Tenant
written notice of the Delivery Date not less than ten (10)
days before the Delivery Date (the "Delivery Date Notice").
Upon receipt of Landlord's Delivery Date Notice, Tenant
shall have access to the Premises for inspection and
performance of Tenant's Work. In no event shall Tenant be
required to accept delivery of the Premises unless and until
all conditions to the occurrence of the Delivery Date have
been satisfied.
15.4 Punchlist Work. Notwithstanding anything to the
contrary in this Lease, within five (5) days after Landlord
has provided Tenant with the Delivery Date Notice, Tenant
and a representative of Landlord, at a mutually agreeable
time, shall inspect the Premises and shall compile a list of
items which have not been completed as required in Exhibit
"C" (the "Punchlist Items"). Tenant shall have the right to
supplement the list of Punchlist Items during the first .I
forty-five (45) days following the Delivery Date. Landlord
shall use reasonable efforts to complete the Punchlist Items
by the Delivery Date or as soon as possible after Landlord's
receipt of a supplemental list of Punchlist Items, as the
case may be. In the event Landlord is unable to complete
such Punchlist Items within thirty (30) days after the
Delivery Date or within thirty (30) days after receipt of a
supplemental list, Tenant shall have the right, but not the
obligation, to complete such Punchlist Items at Landlord's
cost and expense and to either request reimbursement from
Landlord or to offset the cost thereof against rent. Upon
Landlord's completion of all Punchlist Items, Landlord shall
have no further obligation with respect to the construction
of the Premises.
15.5 Pre-Completion Acceptance. If the Delivery Date
has not occurred within the Construction Period, Tenant
shall have the right, but shall not be obligated, to accept
delivery of the Premises, without relieving Landlord of any
obligation to fully complete Landlord's Work. If Tenant
accepts delivery of the Premises prior to the completion of
Landlord's Work, Landlord shall complete Landlord's Work,
including completing any Punchlist Items, as soon as
possible, and in so doing shall not unreasonably interfere,
and shall cause its contractors not to unreasonably
interfere, with the fixturing, furnishing, equipping and
stocking of the Premises by Tenant and its contractors.
Notwithstanding the foregoing, once (i) Tenant has taken
possession of the Premises and Landlord has completed
Landlord's Work, (ii) all Punchlist Items have been
completed, and (iii) all warranties have been assigned to
Tenant, Landlord shall have no further construction
obligations hereunder.
15.6 Failure to Deliver. Notwithstanding any provision
of this Lease to the contrary, if the Delivery Date has not
occurred within thirty (30) days after the Construction
Period (delays due to the occurrence of Force Majeure events
excepted) (the "Cancellation Date"), Tenant shall have the
right, in addition to and not in lieu of any and all other
rights and remedies available at law or equity, to cancel
this Lease by giving written notice to Landlord at any time
thereafter but before the Delivery Date (the "Notice of
Cancellation"). Tenant must provide its Notice of
Cancellation to Landlord within thirty (30) days after the
Cancellation Date. If Tenant fails to provide a Notice of
Cancellation within such thirty (30) day period, Tenant
shall be deemed to have waived its right to cancel pursuant
to this section 15.6. If Tenant provides timely Notice of
Cancellation, Tenant shall be relieved of all obligations
hereunder and Tenant shall not be liable to Landlord in
damages or otherwise.
15. 7 Liquidated Damages. In the event Landlord does
not deliver the Premises to Tenant in the condition as
herein required by the end of the Construction Period,
Landlord shall pay to Tenant the sum of Two Hundred Dollars
($200.00), for each day between the last day of the
Construction Period and the Delivery Date, or, if Tenant
exercises its right to cancel for Landlord's failure to
deliver, for each day between the last day of the
Construction Period and Tenant's Notice of Cancellation
(delays due to the occurrence of Force Majeure events
excepted). If Landlord fails to pay Tenant as aforesaid,
then Tenant shall have the right (without limiting any other
right or remedy of Tenant) to deduct such amount from rent
and other payments due Landlord. The liability of Landlord
under this paragraph shall be in addition to all other
claims which Tenant may have against Landlord. Landlord
agrees that the amount provided or in this section
constitutes a reasonable estate of damages that Tenant is.
likely to incur m the event of a breach by Landlord as
herein provided, and shall not constitute a penalty .
ARTICLE 16
GENERAL PROVISIONS
16.1 Quiet Enjoyent. Subject to the terms and
conditions of this Lease, Tenant shall have the quiet and
peaceful possession of the Premises.
16.2 Definition of Rent. All monetary obligations of
Tenant to Landlord under the terms of this Lease, including,
without limitation, the Taxes, insurance premiums and other
Additional Rent payable hereunder, shall be deemed to be
"rent".
16.3 Subordination. This Lease shall be subordinate to
the lien of any superior lease, mortgage, deed of trust, or
any other hypothecation or security now existing or
hereafter placed upon the Premises, and to any and all
advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, and extensions
thereof, and Tenant hereby agrees, upon request by Landlord,
to execute and deliver to Landlord and its lender(s) a
subordination, non-disturbance and attornment agreement in a
form reasonably acceptable to Tenant prescribed by such
lender(s) with respect to any such superior lease, mortgage,
deed of trust, hypothecation, or security; provided,
however, that no such instrument shall materially limit
Tenant's rights or materially expand Tenant's obligations
under this Lease. Such agreement shall be executed by
Tenant within thirty (30) days after receipt of written
request from Landlord. Landlord agrees to obtain a non-
disturbance and attornment agreement from the holder of any
mortgage given with respect to the Premises existing at the
time of the execution of this Lease or the recording of a
Memorandum Lease or at such other times as may be reasonably
requested by Tenant.
16.3.1 It is a condition, however, of the subordination
provisions of Section 16.3 above that Landlord shall procure
from any such mortgagee an agreement in writing, which shall
be delivered to Tenant, providing in substance that (i) so
long as Tenant shall faithfully discharge the obligations on
its part to be kept and performed under the terms of this
Lease, Tenant's tenancy will not be disturbed nor this Lease
affected by any default or foreclosure under such mortgage,
and that the mortgagee agrees that this Lease shall remain
in full force and effect even though Default in and
foreclosure under the mortgage may occur; and (ii) such
mortgagee shall permit insurance proceeds or condemnation
awards, as the case may be, to be used for any restoration
and repaid as required by the provisions of this Lease as
set forth in Sections 8 and 9. The word "mortgage" as used
herein means (i) any lease of land only or of land and
buildings in a sale-lease-back transaction involving all or
any part of the Premises, or (ii) any mortgage, deed of
trust or other similar security instruments constituting a
lien upon all or any part of the Premises, whether the same
shall be in existence as of the date hereof or created
hereafter, and any modifications, extensions, renewals and
replacements thereof. "Mortgagee" as used herein means a
party having the benefit of a Mortgage, whether as lessor,
mortgagee, trustee or note- holder.
16.3.2 No change in ownership of all or any portion of
the Premises, or assignment of this Lease, or the rentals
provided for herein, shall be binding upon Tenant for any
purpose until after Tenant has been furnished with written
notice from Landlord notifying Tenant of a change in
ownership or assignment.
16.3.3 In the event Tenant receives a written notice
from any party claiming a collateral interest in this Lease
or in the rentals hereunder and, by reason thereof, a
present entitlement to collect the rentals under this Lease,
Tenant shall have the right either (i) to pay such rentals
to such party which payment shall satisfy any and all
liabilities of Tenant to Landlord with respect to such
payment without obligation on the part of Tenant to make
further inquiry but subject to such party's providing to
Tenant a copy of the instrument pursuant to which such party
claims such entitlement and to such claim being plausible on
the face of such instrument; or (ii) to withhold such
rentals pending the determination by a court of competent
jurisdiction of the entitlement thereto.
16.4 Surrender of Premises. Except for changes
resulting from eminent domain proceedings, at the expiration
or sooner termination of the Lease Term, Tenant shall
surrender the Premises in the same condition as the Premises
were in upon delivery of possession thereto under this
Lease, reasonable wear and tear and damage due to casualty
(to the extent not required to be repaired or restored by
Tenant under this Lease) excepted, and shall surrender all
keys for the Premises to Landlord at the place then fixed
for the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the
Premises. Tenant shall at such time remove all of Tenant's
Trade Fixtures including, but not limited to, equipment,
signs,
furnishings, inventory, machinery, and other personal
property, as well as any alterations or improvements, and
shall repair any damage to the Premises caused thereby. Any
or all of such property not so removed shall, at Landlord's
option, become the exclusive property of Landlord or be
disposed of by Landlord, at Tenant's sole cost and expense,
if not removed by Tenant after receipt of written notice
from Landlord pursuant to Section 7.2.1. In the event Tenant
shall fail to pay the cost of any such repair, Landlord may
do so and Tenant shall reimburse Landlord for the amount
thereof within five (5) days after receipt of a xxxx
therefore. If Tenant shall so surrender the Premises, Tenant
shall indemnify Landlord against loss or liability resulting
from the delay by Tenant in so surrendering the Premises
including, without limitation, any claims made by any
succeeding occupant founded on such delay. Tenant's
obligation to observe or perform this covenant shall survive
the expiration or other termination of the Lease Tenn.
16.5 Estoppel Certificates. Each party (each a
"Responding Party") shall at any time upon not less than ten
(10) days prior written notice from the other party (each a
"Requesting") execute, acknowledge, and deliver to the
Requesting party a statement in a form prescribed by
Landlord and reasonably acceptable to Tenant certifying and
acknowledging the following: (i) that this Lease represents
the entire agreement between Landlord and Tenant, and is
unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect) and
the date to which the Fixed Monthly Rent and other charges
are paid in advance, if any; (ii) that there are not, to the
Responding Party's knowledge, any uncured defaults on the
part of the RequestiI1g Party, or specifying such defaults
if any are claimed; and (iii) any other information
reasonably requested by the requesting Party. Any. such
statement may be conclusively relied upon by prospective
purchaser or encumbrancer of the Premises or of the business
of the Requesting Party.
16.6 Severability. The invalidity of any provision of
this Lease as determined by a court of competent
jurisdiction shall in no way affect the validity of any
other provision hereof.
16. 7 Entire Agreement. This Lease constitutes the
entire agreement between Landlord and Tenant and supersedes
all prior agreements between them with respect to the
Premises, whether written or oral.
16.8 Notices. Any notice required or permitted to be
given hereunder shall be in writing and may be given by
facsimile (provided a copy is immediately sent by one of the
other methods of providing notice), personal delivery,
certified mail, return receipt requested, or by nationally
recognized overnight courier service delivered to Tenant or
to Landlord, as the case may be, at the F AX numbers or
addresses for each set forth in the Fundamental Lease
Provisions. Either party may by notice to the other specify
a different F AX number or address for notice purposes. A
copy of all notices required or permitted to be given to
Landlord hereunder shall be concurrently transmitted to such
party or parties at such addresses as Landlord may from time
to time hereafter designate by notice to Tenant.
16.9 Waivers. No waiver by Landlord or Tenant of any
provision hereof shall be deemed a waiver of any other
provision hereof or of any subsequent default by Landlord or
Tenant of the same of any other provision. Landlord's
consent to, or approval of, any act shall not be deemed to
render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of
rent hereunder by Landlord shall not be a waiver of any
preceding default by Tenant hereunder, other than the
failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding default
at the time of acceptance of such rent.
16.10 Recording. Either Landlord or Tenant shall, upon
request of the other, execute, acknowledge, and deliver to
the other a "short fonn" memorandum of this Lease for
recording purposes. Such memorandum shall be in the form
reasonably prescribed by Landlord. In addition, any
termination agreement or quitclaim deed shall be similarly
recorded, which agreement shall survive the termination of
this Lease. The cost of recording shall be borne by the
party requesting such recording.
16.10.1 At the time that the Commencement Date of the
term of this Lease is firmly established, the parties shall
promptly enter into a Supplemental Lease Agreement, setting
forth the actual commencement and expiration of the Initial
Term and any extensions thereof and describing the Premises,
but containing no further provisions of this Lease, which
Supplemental Lease Agreement may be recorded by either
party. If the Commencement Date is finally established
before a short form lease or memorandum of lease has been
executed by the parties, the short form lease or memorandum
of lease and the Supplemental Lease Agreement may be
consolidated into a single recordable document.
16.11 Holding Over. If Tenant remains in possession of
the Premises or any part thereof after the expiration or
termination of the Lease Term, such occupancy shall be a
tenancy from month-to-month upon all the provisions of this
Lease pertaining to the obligations of Tenant and Tenant
shall thereby waive its rights of notice to quit, but
Tenant's right as to any Renewal Term shall terminate. The
monthly rent due during such hold-over period shall be equal
to 125% of the Fixed Monthly Rent then in effect, and Tenant
shall continue to be obligated to pay all Additional Rent
and other amounts required to be paid by the terms of this
Lease. Notwithstanding the foregoing, in the event that
Landlord and Tenant are engaged in good faith negotiations
for a new lease at the expiration or termination of the
Lease Term, Tenant's continuing possession shall not
constitute holding over for so long as such negotiations
continue. However, Landlord shall in its sole discretion
have the right to notify Tenant in writing, that Landlord
elects to terminate such negotiations whereupon thirty (30)
days after Tenant's receipt of such notice the monthly rent
due thereafter shall be equal to 150% of the Fixed Monthly
Rent then in effect.
16.12 Choice of Law. The laws of the jurisdiction in
which the Premises are located shall govern the validity,
performance, and enforcement of this Lease.
16.13 Attorneys' Fees. Should either party institute
any action or proceeding to enforce any provision hereof or
for a declaration of such party's rights or obligations
hereunder, the prevailing party shall be entitled to receive
from the losing party such amounts as the court may adjudge
to be reasonable attorneys' fees and expenses for services
rendered to the party
prevailing in any such action or proceeding, and such fees
shall be deemed to have accrued upon the announcement of
such action or proceeding and shall be enforceable whether
or not such action or proceeding is prosecuted to judgment.
16.14 Waiver of Jury Trial. LANDLORD AND TENANT EACH
HEREBY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY CLAIM,
ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER LANDLORD OR
TENANT AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN
ANY W A Y CONNECTED WITH THIS LEASE, THE RELATIONSHIP QF
LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUP ANCY OF
THE PREMISES.
16.15 Liability of Landlord. In the event of any sale
or other transfer of Landlord's interest in the Premises,
Landlord shall be relieved of all liabilities and
obligations of Landlord hereunder arising after the date of
such transfer. Notwithstanding anything contained herein to
the contrary, neither Landlord nor its officers, directors,
members, agents, representatives, employees or affiliates,
shall have no personal liability in respect of any of the
tenns, covenants, conditions or provisions of this Lease. In
the event of a breach or default by Landlord of any of its
obligations under this Lease, Tenant, and any persons
claiming by, through or under Tenant, shall look solely to
the equity of the Landlord in the Premises for the
satisfaction of Tenant's and/or such persons' remedies and
claims for damages.
16.16 No Merger. There shall be no merger of this
Lease, or the leasehold estate created by this Lease, with
any other estate or interest in the Premises, or any part
thereof, by reason of the fact that the same person, rum,
corporation or other entity may acquire or own or hold,
directly or indirectly, (i) this lease or the leasehold
estate created by this Lease or any interest this Lease or
in any such leasehold estate; and (ii) any such other estate
or interest in the Premises or any part thereof. No such
merger shall occur unless and until all persons,
corporations, firms and other entities having an interest
(including a security interest) in (1) this Lease or the
leasehold estate created by this Lease; and (2) any such
other estate or interest in the Premises, or any part
thereof, shall join in a written instrument effecting such
merger and shall duly record the same.
16.17 Interpretation The captions by which the Articles
and Sections of this Lease are identified are for
convenience only and shall have no effect upon the
interpretation of this Lease. Whenever the context so
requires, singular numbers shall include the plural, the
plural shall refer to the singular, the neuter gender shall
include the masculine and feminine genders, and the terms
"Landlord" and "Tenant" and "person" shall include
corporations, limited liability companies, partnerships,
associations, other legal entities, and individuals.
16.18 Relationship of the Parties. Nothing in this
Lease shall create a partnership, joint venture, employment
relationship, borrower and lender relationship, or any other
relationship between Landlord and Tenant, other than the
relationship of landlord and tenant.
16.19 Successors. This Lease shall be binding upon and
inure to the benefit of the parties hereto and their
respective personal and legal representatives, heirs,
successors, and
assigns.
16.20 Modifications. This Lease may not be altered,
amended, changed, waived, terminated, or modified in any
manner except by a written instrument executed by Landlord
and Tenant.
16.21 Brokerage Fees. Landlord and Tenant each
represent and warrant that they have not employed a broker
in connection with the execution of this Lease. Landlord and
Tenant shall each indemnify and hold the other harmless from
and against any claim or claims for brokerage or other
commissions arising from such party having employed a broker
contrary to its representation in this Section.
16.22 Waiver of Redemption. To the extent permitted by
law, Tenant hereby waives any and all rights of redemption
with respect to this Lease. Tenant hereby waives any rights
it may have to any notice to cure or vacate or to quit
provided by any current or future law; provided that the
foregoing shall not be deemed to waive any notice expressly
provided in this Lease.
16.23 Not Binding Until Executed. This Lease does not
constitute an "offer" and is not binding until fully
executed and delivered by Landlord.
16.24. Reasonable Consent. Wherever Landlord's consent
or approval shall be required herein, consent or approval
shall not be unreasonably or arbitrarily withheld or delayed
unless otherwise set forth to the contrary in this Lease.
16.25 No Continuous Operation. Notwithstanding anything
contained in this Lease, expressly or impliedly, to the
contrary, and notwithstanding the agreement herein contained
for the payment by Tenant of rent, it is specifically and
expressly understood and agreed that Tenant shall be under
no duty or obligation, either express or implied, to open,
or thereafter to continuously conduct, its business in the
Premises at any time during the Term. Further, Tenant's
failure to open for business in the Premises shall not
otherwise entitle Landlord to commence or to maintain any
action, suit, or proceeding, whether in law or in equity,
relating in any way to Tenant's failure to open or
thereafter to continuously conduct its business in the
Premises. Without limiting the generality of the foregoing,
Tenant shall have the right to close two partial days per
year to take inventory and shall, at Tenant's option, be
closed Thanksgiving Day, Christmas Day, New Years Day, and
Easter.
16.26 Matters of Record. This Lease is expressly
subject to all matters of record and Tenant hereby agrees to
comply with the terms of all agreements and other matters of
record. The rights of Tenant set forth herein are subject to
the rights of other parties under agreements of record, and
the exercise of such rights by such parties shall not
constitute a breach under this Lease.
16.27 Financial Assurance Provision. Notwithstanding
anything to the contrary contained in this Lease, if at any
time during the initial seven (7) years of the Term
(measured from the Commencement Date) (the " Financial
Assurance Period"), the tangible net worth " (as hereinafter
defined) of Tenant (as of the time any quarterly or annual
financial statement and/or calculation of tangible net worth
is due, as provided below) falls below the amount equal to
fifty percent (50%) of Tenant's tangible net worth as of
January 29, 2000 of Two Hundred Fifty-Five Million Three
Hundred Sixty-Four Thousand Dollars ($255,364,000.00) (a
...Financial Assurance Failure Event"), Tenant shall
immediately notify Landlord and, within ten (10) days
following such notice from Tenant (or, in the event Landlord
becomes aware of a Financial Assurance Failure Event prior
to such notice from Tenant, then within ten (10) days
following written notice from Landlord) remit to Landlord a
sum (in cash or other immediately available funds) equal to
the aggregate Fixed Monthly Rent payments scheduled to be
paid during the fmal twelve (12) months of the Initial Term
of this Lease (the " Financial Assurance Amount"). The
Financial Assurance Amount shall be promptly deposited by
Landlord in an interest bearing account selected by
Landlord, in Landlord's sole discretion. Notwithstanding
anything to the contrary contained herein, any interest
which accrues on the Financial Assurance Amount shall be
added to and included as part of the Financial Assurance
Amount for all purposes under this Section.
In connection with the foregoing, on or before the date
which is forty-five (45) days following the expiration of
each fiscal quarter (other than the last fiscal quarter) of
Tenant (it being understood and agreed that Tenant's fiscal
year shall end on the Saturday closest to January 31 in each
year) during or relating to the Financial Assurance Period
the dates which are thhree (3), six (6) and nine (9) months,
respectively, following the expiration of the previous
fiscal year of Tenant), Tenant shall furnish or cause to be
furnished to Landlord current financial statements and a
calculation of Tenant's then current tangible net worth, all
prepared in accordance with generally accepted accounting
principles (GAAP) and certified by the Chief Financial
Officer of Tenant. In addition, on or before the date which
is ninety (90) days following the expiration of each fiscal
year of Tenant during or relating to the Financial Assurance
Period, Tenant shall (i) furnish or cause to be furnished to
Landlord audited, current financial statements" prepared in
accordance with generally accepted accounting principles
(GAAP) and certified by a reputable accounting firm
reasonably acceptable to Landlord, and (ii) a calculation of
Tenant's then current tangible net worth (certified by
Tenant's Chief Financial Officer), prepared in accordance
with generally accepted accounting principles (GAAP).
Tenant's failure to timely provide any financial statement
required pursuant to this Section shall, without further
notice, constitute a default under this Lease.
Notwithstanding anything to the contrary herein, all
financial statements provided to Landlord pursuant to the
provisions of this Paragraph shall be subject to the
agreements regarding confidentiality set forth in that
certain letter agreement dated July 12, 2000 and executed by
Landlord's representative (Xxxx Xxxxxxxx) on July 13, 2000;
provided, however, and notwithstanding the foregoing or any
other contrary provision, Landlord may disclose such
financial statements to its accountants, attorneys and other
representatives and/or agents in
connection with the administration of this Lease (which
parties shall also maintain such financial statements as
confidential) and/or in connection with any litigation or
other dispute concerning this Lease (provided Landlord shall
not oppose or contest a motion by Tenant to have such
documents maintained under seal of the decisionmaking
authority).
The Financial Assurance Amount shall be held by
Landlord, subject to the following provisions of this
Section, as security for the faithful performance by Tenant
of all of the terms, covenants and conditions of this Lease
to be kept and performed by Tenant during the remainder of
the Lease Term. If Tenant defaults (beyond applicable notice
and cure periods) with respect to any provision of this
Lease, including but not limited to the provisions relating
to the payment of Fixed Monthly Rent, Additional Rent and
other charges payable to Landlord under this Lease, Landlord
may (but shall not be required to) use, apply or retain all
or any part of the Financial Assurance Amount for the
payment of any such sum in default or for the payment of any
amount which Landlord may spend or become obligated to spend
by reason of Tenant's default, or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason
of Tenant's default. Notwithstanding anything to the
contrary contained in this Lease, Landlord's receipt, use or
application of the Financial Assurance Amount shall in no
way limit any other right or remedy available to Landlord
under this Lease or applicable law or equity .
Provided Tenant is not then in default under this Lease
beyond applicable notice and cure periods, and Tenant has
not previously been in default under this Lease beyond
applicable notice and cure periods at any time during the
period in which Landlord was in receipt of the Financial
Assurance Amount (or any portion thereof), then on the first
(1) anniversary of the expiration of the Financial Assurance
Period (the "Disgorgement Commencement Date") and on each
anniversary of such date thereafter, Landlord shall disgorge
to Tenant an amount equal to one-seventh (1/7) of the amount
of the Financial Assurance Amount as of the Disgorgement
Commencement Date until the Financial Assurance Amount is
completely disgorged to Tenant; provided, however, and
notwithstanding the foregoing, the seventh (71h) such
payment by Landlord to Tenant shall include any remaining
portion of the Financial Assurance Amount. In the event
Landlord is not required to disgorge the Financial Assurance
Amount (or any remaining portion thereof) then, provided
such amount is not otherwise used or applied by Landlord in
accordance with the other provisions of this Section,
Landlord shall return to Tenant (or, at Landlord's option,
the last assignee of Tenant's interest hereunder) the
remaining balance of the Financial Assurance Amount within
thirty (30) days following the expiration of the Term of
this Lease.
For purposes of this Section, "tangible net worth" shall
mean shareholders' equity in Tenant, minus the value of
intangible assets, as defined under generally accepted
accounting principles (GAAP) (as such definition exists as
of November 30, 2000), such as, but not limited to,
goodwill, patents and trademarks.
16.28 Repurchase Agreement. Landlord and Tenant
acknowledge that they have entered into that certain
agreement, simultaneously with the execution of this Lease,
whereby if certain conditions are not satisfied (as set
forth more fully therein) Landlord shall have the right to
require Tenant to repurchase the Premises (the "Put Option")
for the Repurchase Price (as defined therein) (the
"Repurchase Agreement"). In the event Landlord exercises the
Put Option in accordance with the terms of the Repurchase
Agreement, this Lease shall automatically terminate and be
null and void and of no further force and effect.
IN WITNESS WHEREOF, the parties have executed this Lease as
of the 22nd day of February,2001.
WITNESS LANDLORD
/s/ Xxxxxx Xxxxxxxx TransGate, LLC
Print Name Xxxxxx Xxxxxxxx a Nevada limited liability company
By TransGate Management Corp
a Nevada corporation
Its Managing Member
By /s/ Xxxxx Xxxxxxxx
Its Treasurer
16.28 Repurchase Agreement. Landlord and Tenant
acknowledge that they have entered into that certain
agreement, simultaneously with the execution of this Lease,
whereby if certain conditions are not satisfied (as set
forth more fully therein) Landlord shall have the right to
require Tenant to repurchase the Premises (the "Put Option")
for the Repurchase Price (as defined therein) (the
"Repurchase Agreement"). In the event Landlord exercises the
Put Option in accordance with the terms of the Repurchase
Agreement, this Lease shall automatically terminate and be
null and void and of no further force and effect.
IN WITNESS WHEREOF, the parties have executed this Lease as
of the 22nd day of February,2001.
WITNESSES TENANT:
STERLING JEWELERS INC.
/s/ Xxxxxx X Xxxxxxxxxx By /s/ Xxxxxxx X Xxxxxx
Print Name Xxxxxx X Xxxxxxxxxx Its Executive Vice President
/s/ Xxxxxxxx X Xxxxxxx
Print Name Xxxxxxxx X Xxxxxxx
STATEOF NEVADA)
COUNTY OF XXXXX)
BEFORE ME, a Notary Public, in and for said County and State,
personally appeared Xxxxx Xxxxxxxx the Treasurer of TransGate
Management Corp., the Managing Member of TransGate, L.L.C., who
acknowledged that he did sign the foregoing instrument and that
the same is his free act and deed, and the free act and deed of
said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal this 21st day of February,2001.
/s/ Xxxxxxx X Xxxxxxxxx
Notary Public
[notary stamp]
STATE OF OHIO
COUNTY OF SUMMIT
BEFORE ME, a Notary Public, in and for said County and State,
personally appeared Xxxxxxx X Xxxxxx, the Exec Vice Pres of
Sterling Jewelers Inc. who acknowledged that he did sign the
foregoing instrument and that the same is his free act and deed,
and the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal this 21st day of February, 2001.
/s/ Xxxxxxxx X Xxxxxxx
Notary Public
[notary stamp]
EXHIBIT A
Legal Description of Property
TRACT I:
Land in the 10th Civil District of Davidson County, Tennessee.
bounded on the west by Two Mile Pike, located north of Gallatin
Road, being Lot "F" of the resubdivision of Rivergate Park, of
record in Book 4300, page 107, Register's Office for said County,
more particularly described as follows:
Beginning at a point on the easterly right of way of Two Mile
Pike, south 18 degrees 35' east 573.12 feet from the center line
of Bluebird Drive; thence north 71 degrees 25' east 169.98 feet
to a point, the beginning of a curve to the left; thence with
said curve having a radius of 87.50 feet and a central angle of
19 degrees 29', 30.04 feet to a point; thence north 51 degrees
56' east 16.63 feet to a point on the southerly margin of an
access easement; thence easterly along said easement and around a
curve having a radius of 135.00 feet and a central angle of 36
degrees 26' 85.84 feet to a point; thence south 74 degrees 30'
east 54.59 feet to a point, the beginning of a curve to the left;
thence along said curve having a radius of 85.00 feet and a
central angle of 2 degrees 27' 3.63 feet to a concrete monument;
thence south 35 degrees 18' west 105.49 feet to a point; thence
north 54 degrees 46' west 27.00 feet to a point; thence south 35
degrees 18' west 264.41 feet to a point on the easterly margin of
Two Mile Pike; thence along Two Mile Pike, north 18 degrees 35'
west 285.00 feet to the point of beginning containing 1.32 acres,
more or less.
Less and except any portions of such property conveyed or taken
for rights of way for public streets or roads.
Being the same property conveyed to TransGate, LLC by Special
Warranty Deed from Shoney's Inc., as of record in Instrument
No.20010223-0017124, Register's Office for Davidson County,
Tennessee.
TRACT II:
A triangular tract or parcel of land located in Davidson County.
Tennessee and being a portion of the "Reserved" Parcel as shown
on the plan of Lot "F" of Rivergate Park of record in Plat Book
4300, page 107, Register's Office of Davidson County, Tennessee,
and being more particularly described as follows:
Beginning at an iron pin on the easterly margin of Two Mile Pike,
said point of beginning being the south-western-most common
corner of Lot No. "F" and this reserved parcel as shown on the
aforesaid subdivision plan; thence leaving the margin of the said
road North 35 degrees 51' 47" East 264.58 feet to a point; thence
with the line of said Lot "F" North 55 degrees 07' 22" West 2.60
feet to an iron pin; thence continuing with said Lot "F" South 35
degrees 18' East 264.55 feet to an iron pin set on the easterly
margin of the aforesaid Two Mile Pike.
Less and except any portions of such property conveyed or taken
for rights of way for public streets or roads.
Being the same property conveyed to TransGate, LLC by Special
Warranty Deed from Shoney's Inc, as of record in Instrument No.
20010223-0017124, Register's Office for Davidson County,
Tennessee.
TRACT III:
All of Grantor's right, title and interest in and to the access,
drainage and utility easements, including a privately owned
circulation road, all as shown on the recorded plan of Rivergate
Park of record in Book 4175, page 107, in the office of the
Register of Deeds for Davidson County, Tennessee.
