ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
is made and entered into as of the 1st day of December, 2005, by
and between LOUDON ROAD N.H. RTE. 9 DEVELOPMENT, LLC, a New York
limited liability company ("Assignor"), and AEI INCOME & GROWTH
FUND 25 LLC, a Delaware limited liability company ("Assignee").
RECITALS:
A. Assignor and Assignee (predecessor-in-interest to AEI Fund Management,
Inc.) are parties to that certain Purchase and Sale Agreement dated October
7, 2005, (the "Agreement"), pursuant to which Assignee is acquiring from
Assignor the real property, and improvements located on such property, more
particularly described on EXHIBIT A attached hereto and incorporated herein
by this reference (the "Premises").
B. Pursuant to the terms of the Agreement, Assignor desires to sell, assign,
convey, transfer and set over to Assignee and Assignee desires to assume all
of Assignor's interest in that certain Lease dated June 30, 2005 (the "Lease")
by and between Assignor and Sterling, Inc. (the "Tenant"), including all rents
prepaid for any period subsequent to the date of this Assignment, and all of
Assignor's interest in that certain Guaranty dated June 24, 2004 by and
between Assignor and Sterling Jewelers, Inc. (the "Guarantor") subject to the
terms and conditions set forth below.
C. Assignor is the Landlord under the Lease and Guaranty with full right and
title to assign the Lease, the Guaranty, and the "Rent" (as defined below) to
Assignee as provided herein. The Lease and Guaranty are in full force and
effect and have not been modified or amended. So far as is known to Assignor,
there is no default by Tenant under the Lease, and no Rent has been waived,
anticipated, discounted, compromised or released.
NOW, THEREFORE, in consideration of the Recitals, which are
hereby made a part hereof, for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, Assignor and Assignee hereby agree
as follows:
1. Assignor hereby irrevocably and unconditionally sells, assigns, conveys,
transfers and sets over unto Assignee, its heirs, successors and assigns as
of the date hereof (the "Effective Date"), all of Assignor's right, title and
interest in, to and under: (i) the Lease, (ii) the Guaranty, and (iii) any
and all rents prepaid as of the Effective Date, held by Assignor in connection
with the Lease (the "Rent").
2. Except as otherwise set forth in Paragraph 4 hereof, Assignee hereby
assumes and shall be liable for any and all liabilities, claims, obligations,
losses and expenses, including reasonable attorneys' fees arising in
connection with the Lease or the Guaranty which are actually incurred, and
which arise by virtue of acts or omissions occurring thereunder on or after
the Effective Date. Assignor shall indemnify and hold Assignee harmless from
any and all liabilities, claims, obligations, losses and expenses, including
reasonable attorneys' fees arising in connection with the Lease or the
Guaranty which are actually incurred, and which arise by virtue of acts or
omissions occurring thereunder, prior to the Effective Date. Except as
otherwise set forth in Paragraph 4 hereof, Assignee shall indemnify and hold
Assignor harmless from any and all liabilities, claims, obligations, loss and
expenses, including reasonable attorneys fees, arising in connection with the
Lease or as a result of Assignee's failure to fulfill the landlord's duties
and obligations accruing under the Lease, or the Guaranty on or after the
Effective Date. Assignee shall be entitled to receive all income arising from
the Lease from and after said Effective Date. Assignor shall be entitled to
receive all income accruing from the Lease prior to the Effective Date.
3. Assignor shall direct the Tenant and any successor tenant under the
Lease to pay to Assignee the Rent and all other monetary obligations due
or to become due under the Lease for the period beginning on the Effective
Date.
4. Notwithstanding anything contained herein or implied hereby to the
contrary, Assignor shall remain liable for the performance of the obligations
of the "Landlord" under the Lease with respect to Landlord's obligations under
Section 15 of the Lease.
5. This Assignment shall be governed by and construed in accordance with the
laws of the state in which the Property is located.
6. All rights and obligations of Assignee and Assignor hereunder shall be
binding upon and inure to the benefit of Assignor, Assignee and the heirs,
successors and assigns of each such party.
7. This Assignment may be executed in any number of counterparts, each of
which shall be effective only upon delivery and thereafter shall be deemed an
original, and all of which shall be taken to be one and the same instrument,
for the same effect as if all parties hereto had signed the same signature
page. Any signature page of this Assignment may be detached from any
counterpart of this Assignment without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this
Agreement identical in form hereto but having attached to it one or more
additional signature pages.
8. Whenever the context so requires in this Assignment, all words used in
the singular shall be construed to have been used in the plural (and vice
versa), each gender shall be construed to include any other genders, and
the word "person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate or
any other entity.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment effective as of the day and year first above written.
ASSIGNOR:LOUDON ROAD N.H. RTE 9 . DEVELOPMENT, LLC, a
New York limited liability company
By:Westlake Holding, Inc., a New York corporation
Its: Sole member
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
STATE OF NEW YORK )
) ss.
COUNTY OF ONONDAGA )
The forgoing instrument was acknowledged before me this
29 day of November, 2005, by ▇▇▇▇▇▇ ▇. ▇▇▇▇, as President of
Westlake Holding, Inc., sole member of Loudon Road N.H. Rte. 9
Development, LLC, a New York limited liability company, on behalf
of said limited liability company.
WITNESS my hand and official seal.
My commission expires
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Notary Public
[Notarial Seal]
ASSIGNEE: AEI INCOME & GROWTH FUND 25 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
A Minnesota corporation
Its: Managing Member
By:/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
STATE OF MINNESOTA )
) ss.
CITY/COUNTY OF ▇▇▇▇▇▇ )
The forgoing instrument was acknowledged before me this 1st day of
December, 2005, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as President of AEI Fund Management XXI,
Inc., Managing Member of AEI INCOME & GROWTH FUND 25 LLC, a Delaware limited
liability company, on behalf of said limited liability company.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
[Notarial Seal]
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASE AND GUARANTY
Legal Description
A certain tract of land with any buildings and improvements
thereon, situated in the City of Concord, County of Merrimack,
State of New Hampshire, being shown as Lot 1 on a plan of land
entitled, "Subdivision Plat of land of Berkshire-Concord, LLC Map
111E, Block 1, ▇▇▇▇ ▇, ▇, ▇ & ▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 2, Lot 8" dated
February 15, 2005 revised through June 8, 2005 by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ & Associates, LLC, which Plan is recorded with the
Merrimack County Registry of Deeds as Plan No. 17480 (the
"Plan"), being, more particularly bounded and described as
follows:
Commencing at a steel pin set on the northerly sideline of Loudon
Road, said pin marking
the southeasterly most corner of the lot herein described; thence
By a curve to the left, having a central angle of 47 21'09" and a
radius of 39.50 feet, a
distance of 32.65 feet to a point; thence
By a curve to the right, having a central angle of 24 22'03" and
a radius of 184.50 feet, a
distance of 78.47 feet to a steel pin; thence
▇▇▇ ▇▇'▇▇"▇ a distance of 105.40 feet to a steel pin; thence
S54 25'40"W a distance of 145.50 feet to a steel pin; thence
S35 33'45"E a distance of 185.26 feet to a steel pin on said
sideline of Loudon Road; thence
N 63 53' 05" E a distance of 93.60 feet to the point of
beginning.
TOGETHER WITH rights under that certain Reciprocal Easement
Agreement dated July 15, 2005,
by and between Loudon Road N.H. Rte.9 Development, LLC and
Berkshire-Concord, LLC recorded
with the Merrimack County Registry of Deeds at Book 2801, Page
786.
LEASE
BETWEEN
▇▇▇▇▇▇ ROAD N.H. RTE. 9 DEVELOPMENT, LLC
a New York limited liability company
AND
STERLING INC.,
an Ohio, corporation
Dated: June 30, 2005
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 ~s Lease, and are incorporated herein by
reference:
EXHIBIT "A". The description of the Premises.
EXHIBIT "B". The site plan showing the layout of
the Shopping Center, and the location of the Premises and
the Building, parking areas, driveways, common areas, the
Protected Area and other improvements to be constructed in
the Shopping Center (the "Site Plan").
EXHIBIT "C". The list of Tenant's prototypical
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-1" . The list of items which comprise
Tenant's Work (as hereinafter defined).
EXHIBIT "D". Tenant's exterior sign drawings
prepared and provided by Tenant and approved by Landlord,
wherein are detailed Tenant's exterior sign(s).
EXHIBIT "E". The Premises Cost.
EXHIBIT "F". Tenant's Trade Fixtures which shall
remain the personal property of Tenant and which Tenant may
remove upon expiration or termination of this Lease.
EXHIBIT "G" The existing exclusives for which
the Premises may not be used.
EXHIBIT "H". The form of Guaranty of Lease to be
executed by Sterling Jewelers Inc.
1.2 DEFINITIONS. Unless otherwise defined
herein, capitalized terms used in this Lease shall have
the meanings listed in the Fundamental Lease
Provisions.
1
Building: shall mean the building containing
approximately 5,996 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 thirty (30)
days after the Delivery Date or the day
that Tenant opens for and conducts
business in the Premises.
Construction Period: shall mean that period commencing
on the date of execution of this Lease
and ending on October 31, 2005.
Delivery Date: shall mean the date that Landlord
delivers the Premises to Tenant with
Landlord' s Work fully complete
(excepting the Punchlist Items (as
hereinafter defined)).
Fixed Monthly Rent: 11% of the Premises Cost (as
detailed on Exhibit "E") divided by
twelve, subject to proration as provided
in Section 2.3, which for Lease Years 1-
5 shall be Twenty-three Thousand Eight
Hundred Seventy-four and 58/lOO Dollars
($23,874.58) per month ($286,495.00 per
annum).
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 (other than the
payment of money): 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 n~t 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, plus any
Partial Lease Years, commencing on the
Commencement Date.
Landlord: Loudon Road N ,H. Rte. 9
Development, LLC
c/o Westlake Development, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇'▇▇▇▇ ▇▇▇▇▇
2
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
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 Y ear: 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 last Lease Year and the expiration
of the Lease Term.
Permitting Period: shall mean the period commencing on
the date of this Lease and ending on June 30,2005.
Proposed Use: 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 prototypical
plans and specifications for the
construction of the Premises which were
previously delivered to and approved by
Landlord, a list of which is set forth
on attached Exhibit "C" as the same may
be modified only by written agreement by
and between Landlord and Tenant.
Premises: shall mean that certain real
property having .60 acres as more
3
particularly described in Exhibit " A "
together with all improvements to be
constructed thereon, located at the
Shopping Center Site in the city of
Concord, County of Merrimack, State of
New Hampshire, and having the street
address ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, together with
all appurtenances, rights and easements
(including the benefit of all rights
under the "Easement Agreement" defined
in Section 13.6 below) and exclusive
rights, if any, granted herein
applicable to the Premises, as further
depicted on the Site Plan.
Premises Cost: shall mean the agreed upon cost to
perform Landlord's Work, which cost is
computed on Exhibit "E" attached hereto
and made a part hereof.
Premises Site: shall mean the land described
on Exhibit "A".
Public Entity: shall mean the Federal, State, County,
municipal or other governmental unit
however denominated, and any agency,
division, department or public official
thereof, now or hereafter having
jurisdiction, in any respect, over the
Premises.
Punchlist Items: shall mean such minor, incomplete items
of Landlord's Work which do not
materially deviate from the Plans and
Specifications or materially interfere
with Tenant's ability to open or operate
the Premises.
Purchase Agreement shall mean that certain Purchase and
Sale Agreement between Berkshire-Concord
LLC -and Landlord' s affiliate entity,
▇▇▇▇▇▇▇▇▇ Development, LLC ("
Affiliate"), entered into on March
15,2005 whereby Landlord shall obtain
fee simple title to the Premises.
Renewal Terms: four (4) additional terms of
five{5) year(s) each.
Shopping Center shall mean the Patriot's Place Shopping
Center located at 295- ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, N.H., consisting of a tenant
building" A " having approximately
50,000 square feet and tenant building
"B" having approximately 22,200 square
feet, the Premises, Building, and the
Common Areas, and other improvements
located upon the Shopping Center Site as
further depicted on the Site Plan.
Shopping Center Site shall mean the land shown on
Exhibit "B", on which the Shopping Center is located.
4
Shopping Center Owner Berkshire-Concord, LLC, its
successors and assigns.
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 only by written
agreement by and between Landlord and
Tenant.
Tenant: Sterling Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Department
F AX: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ A
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇, Esq .
F AX: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant's Work: shall mean the work to be performed by
or at the direction of Tenant in
fixturing the Premises as more
specifically identified on Exhibit "C-
1", attached hereto.
Tenant's 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 for the succeeding Renewal
Term not less than one hundred eighty (180) days prior to
the expiration of the Initial Term or the thel1-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
5
pay Landlord the Fixed Monthly Rent, in advance, 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 payable under
this Lease shall increase by the Increase Percentage on each
Increase Date. Should the Lease TeI1D 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 sh'a1l 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 based on Landlord's review
of the prototypical Plans and Specifications. Within thirty
(30) days after receipt of the final Plans and
Specifications from Tenant, Landlord shall notify Tenant in
writing of any differences between the prototypical Plans
and Specifications and the final Plans and Specifications
which increase the Premises Cost set forth on attached
Exhibit "E", together with at least three (3) bids which
support such increase. Within fifteen (15) days after
receipt of such notice from Landlord, Tenant shall have the
right to object to Landlord's proposed increase by providing
written notice to Landlord, including a bid to support
Tenant's objection. Landlord and Tenant shall thereafter
cooperate with each other to resolve such dispute including
obtaining an independent bid to resolve such discrepancy if
necessary. Upon final resolution of the Premises Cost, but
in any event prior to Landlord's commencement of Landlord's
Work, Landlord and Tenant shall enter into a Supplemental
Lease Agreement prepared by Tenant which modifies and
replaces the Premises Cost set forth on Exhibit "E". In the
event there is no modification of the Premises -- Cost, or
upon execution of a Supplemental Lease Agreement modifying
the Premises Cost, Landlord and Tenant agree that the
Premises Cost shall be deemed to be final and not subject to
any further adjustment, and that Tenant shall not be
responsible for any other costs associated with Landlord's
Work except for change orders which have been initiated,
requested and approved by Tenant.
2.4 ADDITIONAL RENT. In addition to the Fixed Monthly
Rent, as increased, Tenant shall pay to the parties
respectively entitled thereto all Additional Rent,
including, but not limited to, insurance premiums, Taxes (as
defined in Article 4), 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.
" 2.5 INTEREST AND LATE CHARGES If during the Lease
Term, Tenant fails to pay the full amount of any Fixed
Monthly Rent or Additional Rent within seven (7) days after
receipt of written notice from Landlord that the same is due
and payable, then Tenant shall pay to Landlord ... (a)
interest at the monthly rate of one percent (I %) per month
on the unpaid amount from and
6
after the date on which any such sum shall be due and
payable ("Interest"); and (b ) a late charge of fifty
dollars ($50.00) to cover the extra expense involved in
handling such delinquency ("Late Charge"). In the event
Landlord has issued one (1) such notice to Tenant within any
Lease Year, Interest and a Late Charge shall automatically
accrue on any Fixed Monthly Rent or "Additional Rent which
Tenant fails to pay when due during such Lease Year without
Landlord being required to issue any further notices during
such Lease Year. Any payment to be made by Tenant under this
Lease shall be deemed to have been paid upon the date that
it is received by Landlord. The provision for Interest and a
Late Charge as set forth herein shall not be deemed to grant
Tenant any grace period or extension of time or prevent
Landlord from exercising any of its other rights under this
Lease.
2.6 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
for the Proposed Use or any other lawful purpose as long as
such use does not diminish the value of the Premises or
violate any existing exclusive uses then in effect with
respect to the Premises including, but not limited to, the
existing exclusive uses set forth on attached Exhibit "G";
provided, however, that Landlord shall not grant or consent
to any additional exclusive uses other than as set forth on
Exhibit "G" without Tenant's prior written consent which
Tenant shall not unreasonably withhold.
3.2 COMPLIANCE WITH LAW.
3.2.1 As of the Delivery Date, Tenant shall, at
Tenant's sole expense, comply in all 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 .
3.2.2 Tenant shall not use or permit the Premises
to be used in any manner which will result in waste,
reasonable wear and tear (subject to Tenant's obligations
under Section 6.1) and casualty excepted, or the creation of
a nuisance, and Tenant shall maintain the Premises free of
any objectionable noises, odors, or disturbances.
3.3 TENANT'S ENVIRONMENTAL COMPLIANCE. Excepting acts
or omissions of Landlord or
7
its employees, contractors or agents, for which Tenant shall
have no liabilities, Tenant acknowledges and agrees to the
following:
3.3.1 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.
3.3.2 Tenant shall not use the Premises for the
purpose of storing Hazardous Materials (as defined below)
except in full compliance with the Environmental Laws and
other applicable law, and shall not cause the release of any
Hazardous Materials.
3.3.3 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.
3.3.4 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.
3.3.5 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 due to
the acts or omissions of Tenant, or its employees,
contractors or agents. 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.
3.3.6 Without limiting any other agreement of
indemnity by Tenant of Landlord, Tenant hereby agrees to
indemnify, save and hold Landlord harmless from and against
any and all claims, losses, liabilities, damages, penalties,
fines and expenses of whatever kind or nature (including,
without limitation, reasonable attorneys' fees and
disbursements) arising from, out of or by reason of any
violation of Tenant's covenants and obligations contained in
this Section by Tenant, or out of any violation of the
Environmental Laws by Tenant, its owners, employees, agents,
or contractors, which indemnity obligation shall survive the
expiration or te1111ination of this Lease.
3.3.7 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, b~t 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
8
and expense, that Landlord deems necessary or desirable to
cure any such noncompliance. Tenant shall reimburse Landlord
as Additional Rent for any costs incurred by Landlord in
exercising its options under this subsection within five (
5) days after receipt of a ▇▇▇▇ therefor.
3.3.8 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 one
(1) year or more, then from and after such one (1) year
period of interference, a fair and just proportion of the
rents and other charges payable hereunder, taking into
account the nature of the interference to Tenant's
Occupancy, shall be abated until Tenant's Occupancy is no
longer so interfered. If Tenant's Occupancy shall be so
materially interfered with for a period of one (1) year or
more in the last three (3) years of the Lease Term or any
Renewal Term, 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. 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 from the party responsible for such
Hazardous Materials.
3.3.9 The provisions of this Section shall survive
the expiration or termination of the Lease Term.
3.4 LANDLORD'S ENVIRONMENTAL COMPLIANCE. Excepting
acts or omissions of Tenant or its employees, invitees,
contractors or agents, for which Landlord shall have no
liabilities, Landlord acknowledges the following:
3.4.1 Landlord shall not cause or permit any
Hazardous Materials to be sold, used, stored, brought upon,
released, discharged or disposed of (collectively a "Use")
in, on, under or about the Premises without in each case
obtaining all necessary permits required in connection
therewith, and complying with all permit requirements and
Environmental Laws, and otherwise taking all appropriate
steps and making adequate arrangements to assure that such
Use is in the ordinary course of business and will be
performed safely, without contamination of the Premises or
any portion thereof and fully in compliance with all
applicable laws.
3.4.2 Without limiting any other agreement of
indemnity by Landlord of Tenant, Landlord hereby agrees to
indemnify, save and hold Tenant harmless from and against
any and all claims, losses, liabilities, damages, penalties,
fines and expenses of whatever kind or nature (including,
without limitation, reasonable attorneys' fees and
disbursements) arising from, out of or by reason of any
violation of Landlord's covenants and obligations. contained
in this Section by Landlord, any violation of the
Environmental Laws by Landlord, its owners, employees,
agents, or contractors, any pre-existing Hazardous
Materials, or the release or discharge of Hazardous
Materials on the Premises if caused by Landlord, its
contractors, agents, employees, or any other person acting
under Landlord, which indemnity obligation shall survive the
expiration or earlier termination of this Lease.
9
3.4.3 The provisions of this Section shall survive
the expiration or termination of the Lease Tenn.
3.5 DEFINITIONS. Capitalized terms used in this
Article 3 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, and discharges of sewage
or effluent.
"ENVIRONMENTAL LAWS" means all requirements of
environmental, ecological, health, or industrial
hygiene laws or regulations or rules of common law
related to the Premises, including all requirements
imposed by any law, rule, order, or regulation of any
federal, state, or local executive, 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 and which are used,
stored and disposed of in compliance with all
Environmental Laws.
ARTICLE 4
AXES AND UTILITIES
4.1 PAYMENT OF TAXES. Tenant shall pay, as Additional
Rent,' the Taxes (as defined in the following Section)
applicable to the Premises during the Lease Tenn. Landlord
shall provide Tenant with copies of any tax bins applicable
to the Premises promptly after receipt of such bins. 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 cover
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 ▇▇▇▇
therefor.
4.2 DEFINITION OF "TAXES". As used herein, the term shall include:
10
4.2.1 any-form of real estate tax or assessment, ad
valorem tax or gross receipts tax imposed by any authority
having the direct or indirect power to tax, including, but
not limited to, any town, county, state, or federal
government, or any school, agricultural, sanitary, fire,
lighting, sewer, 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 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, or upon the possession;
leasing, use, operation or other disposition thereof, or
upon the rents, receipts or 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, or reimburse 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, business profit tax, business
enterprise tax, 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 if such contest would threaten
Landlord's interest in the Premises and 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,
11
costs and expenses which may accrue during the period of the
contest. Upon the ten11ination 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).
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
appropriate 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 deten11ined 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. Beginning on the Delivery
Date, Tenant shall pay to the utility companies or other
parties entitled to payment the cost of all water, heat, mr
conditioning, gas, electricity, telephone, and other
utilities and services provided to or for the Premises. If
any utility service is interrupted for a period in excess of
seventy-two (72) hours due to the negligence or intentional
misconduct of Landlord, its agents, contractors or
employees, Fixed Monthly Rent shall ▇▇▇▇▇ until such time as
such utility service resumes.
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:
12
Insurance Type Amount of Coverage Risks Covered
Commercial General $1,000,000 per occurrence and bodily injury, property
Liability $2,000,000 in the aggregate damage and contractual
liability
Property Damage full replacement value of the "all risk", including
Building and all improvements sprinkler
damage and flood insurance
located on the Premises
Business Interruption not less than 12 installments of loss of earnings by at
Fixed Monthly Rent least the perils of fire
and lighting extended
coverage, vandalism,
malicious mischief
and sprinkler
leakage
Worker's compensation as required by law
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 to do business in
the jurisdiction where the Premises are situated and which
have an "A-" or higher claims paying rating as ascribed by
Standard & Poor's rating service. All such policies shall be
issued, in the names of Landlord and Tenant, and, if
requested by Landlord, any mortgagee or beneficiary of
Landlord, 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. 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.
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 $5,000,000,
(ii) name Landlord and any mortgagee or beneficiary of
Landlord as additional insureds as their interests may
appear, (iii) provide that the coverage afforded Landlord
will not
13
be reduced or diminished by reason of the use of such
blanket policies; and (iv) otherwise comply with the
provisions of this Article V. Tenant agrees to permit
Landlord at all reasonable times to inspect any policies of
insurance of Tenant which Tenant has not delivered to
Landlord. Tenant also shall comply with all insurance
requirements of the Easement Agreement ( as defined in
Section 13.6).
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 carried by the parties hereto and in
force at the time of any such damage. The foregoing waivers
of subrogation shall be operative 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 pay the same in which case Tenant
shall repay such amount plus any penalties or additional
amounts resulting therefrom to Landlord as Additional Rent
within five (5) days after receipt of a ▇▇▇▇ therefor.
5.5 INDEMNIFICATION.
5.5.1 Subject to Subsection 5.5.2 below and without
limiting any other agreement of indemnity by Tenant of
Landlord set forth in this Lease, Tenant shall indemnify
Landlord for, defend Landlord against, and save Landlord
harn1less from any liability, loss, cost, injury, damage or
other expense or risk whatsoever 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
14
the Premises or any part thereof including any sidewalk
adjacent thereto.
5.5.2 Subject to Subsection 5.5.1 above, and
without limiting any other agreement of indemnity by
Landlord of Tenant set forth in this Lease, Landlord shall
indemnify and save Tenant harmless from and against any and
all claims, demands, actions, damages, liability and expense
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 REPAIRS
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, lig4t poles,
signage and parking lot areas which are part of the
Premises. 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 whatsoever to repair and maintain
the Premises or the Building, 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 rig4t to terminate
this Lease because of Landlord's failure to keep the
Premises or the Building in good order, condition, and
repair, or the rig4t to repair and offset the cost related
thereto against rent.
6.2.1. WARRANTIES. Landlord shall obtain in the name
of Tenant and Landlord all warranties specified in the Plans
and Specifications (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 claw 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.
15
6.3 LANDLORD'S RIGHTS. If Tenant refuses or neglects
to make repairs or maintain the Premises or the Building, 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 to Landlord as
Additional Rent the cost of such repairs, maintenance, or
replacements within five (5) days following receipt of a
▇▇▇▇ 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.
ARTICLE 7
ALTERATIONS
7 .1 CONSENT TO ALTERATIONS. Tenant may make any
interior non-structural alterations, replacements,
additions, changes and improvements to the Building 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 Building and the Premises,
other than interior non-structural Alterations, as it may
find necessary or convenient for its purposes, so long as
complete copies of all architectural plans and
specifications relating to any such Alterations are
delivered to Landlord at the time of Tenant's request for
Landlord's consent. Landlord shall respond within ten (10)
days of Tenant's request for such Alterations and Landlord
shall not unreasonably withhold its consent thereto.
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 property of Tenant which by
its nature is readily removable from the Premises, 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 the
foregoing. 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 shall be deemed abandoned.
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
16
required by reason of any law, rul~, 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 Any Alteration shall be made promptly and in
a good worlm1anlike 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.
7.4.3 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.
7.4.4 No Alteration shall reduce the value of the
Premises or impair the structural integrity of any building
comprising a part of the Premises.
7.5 LIENS. 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 thirty (30) days after the date of filing of same 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, or (ii) furnish such
security as Landlord shall determine to be necessary and/or
required to prevent any foreclosure proceedings against ~ll
or any portion of the Premises during the pendency of such
contest. If Tenant shall fail 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
m~y, but shall not be obligated to, discharge the same
either by paying the amount claimed 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, as Additional Rent,
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
17
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 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. 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, which approval shall not in any way
be construed as a waiver of Tenant's obligation to obtain
all necessary permits, licenses and approvals required for
such signs. Tenant's failure to obtain all necessary
permits, licenses and approvals for Tenant's signs shall in
no way affect any of Tenant's obligations hereunder nor
entitle Tenant to terminate this Lease.
ARTICLE 8
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD
8.1 OBLIGATION TO REBUILD. In the event of damage to
or destruction of the Premises, or any portion thereof, by
casualty or any other cause whatsoever, then Tenant, and not
Landlord, shall be obligated to complete the restoration and
repair thereof in accordance with the terms of this Section
8.1; provided, however, that Tenant shall have the right to
use the casualty insurance proceeds for such restoration and
repair in accordance with the terms set forth herein and
shall be obligated to repair the Premises only to their
condition on the Delivery Date pursuant to the Plans and
Specifications (subject to alterations thereof required by
changes in any governmental codes). Tenant shall have the
sole right to negotiate, prosecute and adjust any clain1 for
casualty insurance proceeds. Any repair or restoration of
the Premises shall be commenced by Tenant within sixty (60)
days after receipt of casualty insurance proceeds and all
necessary approvals for repair and restoration (but in no
event greater than two hundred seventy (270) days following
the casualty , not including delays in obtaining the
necessary approvals for repair and restoration which are
beyond Tenant's control) and Tenant shall make diligent
efforts to complete the repair and restoration within one
hundred eighty (180) days following commencement of the
restoration. Within thirty (30) days after an event of
damage or destruction, Tenant shall deliver to Landlord
notice of the anticipated period of restoration. Unless this
Lease is terminated in accordance with Section 8.2 below,
all casualty insurance proceeds for the Premises shall be
paid into a construction escrow account to ensure that the
Premises will be restored as required herein to be held by a
title company selected jointly 'by Landlord, Landlord's
lender and Tenant. The construction escrow account shall be
released to Tenant to restore or rebuild the Premises
pursuant to the terms of an agreement to be agreed to by
Landlord, Landlord's lender and Tenant, all acting
reasonably, allowing for draws by Tenant on at least a
monthly basis as construction proceeds and requiring the'
customary presentation of architects certifications, title
policy updates and lien waivers or releases for the
disbursement of money from such construction escrow account.
Upon Tenant's completion of any repair or restoration as
required herein and certification by Tenant's architect that
such repair and restoration has been completed in accordance
with the plans and specifications for such restoration,
Tenant's obligation to repair or
18
restore following the casualty shall be satisfied and
thereafter Tenant shall have no further obligation or
liability to Landlord with respect to the condition of the
Premises and the Building other than as specifically set
forth in this Lease.
8.2 TERMINATION RIGHTS IN THE EVENT OF CASUALTY. In
the event 50% or more of the Premises is destroyed during
the last two (2) years of the Lease Term or of any Renewal
Term, Tenant shall have the right to terminate this Lease
upon thirty (30) days advance written notice to Landlord
and, in such event, Fixed Monthly Rent, Additional Rent and
any other charges under this Lease shall be abated as of the
date of such termination. If this Lease is so terminated,
then all insurance proceeds attributable to the casualty to
the Building or improvements on the Premises (excluding
insurance proceeds, if any, attributable to Tenant ' s Trade
Fixtures, which shall be and remain the property of Tenant)
shall be paid to Landlord and/or Landlord's lender.
ARTICLE 9
EMINENT DOMAIN
9.1 TAKING. If the whole of the Premises or the sole
direct access from the Premises to any adjacent street or
highway shall be taken by any public or quasi-public
authority under the power of eminent domain or condemnation,
then this Lease shall terminate on the date of taking of
possession by the condemning authority or the date title
vests in the condemning authority.
In the event that (i) Twenty Five (25%) percent or more
of the Building or the parking serving the Building shall be
taken or conveyed by the power of eminent domain or
condemnation or (ii) as a result of any taking, regardless
of the amount so taken, the remainder of the Premises is
rendered unsuitable in Tenant's opinion, reasonably
exercised, for the continued operation of Tenant's business,
then Tenant shall have the right to terminate this Lease
upon ten (10) days prior written notice given to Landlord
within thirty (30) days after receipt of written notice from
Landlord advising Tenant that a portion of the Premises has
been so taken.
If any part of the Premises is so taken or conveyed,
and the Lease is not terminated as set forth above, then:
(i) this Lease shall continue in full force and effect,
except that the Fixed Monthly Rent shall be reduced in the
same proportion that the portion of the Premises so taken or
conveyed bears to the area of the Premises leased to Tenant,
such reduction commencing as of the date that Tenant is
required to surrender possession of the part of the Premises
taken or conveyed; and (ii) Landlord shall make all
necessary repairs or alterations to restore that portion of
the Premises remaining as near to its former condition as
the circumstances will permit and to constitute the portion
of the Building not taken as a complete architectural unit.
9.2 RIGHTS ON TERMINATION. Upon any termination of this
Lease as a result of eminent domain or condemnation as
provided herein, (i) all Fixed Monthly Rent and Additional
Rent and charges of all type shall be adjusted and prorated
as of the date of such termination; and (ii) all other
rights and obligations of the parties hereunder shall be
terminated as of said date except for unsatisfied
obligations which accrued prior to the date of termination
and the distribution of any award or compensation for such
taking and as provided otherwise in this Lease; provided
that
19
Tenant shall be allowed a reasonable period of time to
remove its property from the Premises.
9.3 WAIVER OF RIGHT TO COMPENSATION. In the event of a
taking under the power of eminent domain of the Premises,
whether whole or partial, all compensation awarded for such
taking of the fee and leasehold estate, or consideration
paid for a conveyance in lieu of condemnation, as damages or
otherwise, shall belong to and be the property of Landlord,
except that Tenant shall be entitled to recover from the
condemning authority, such amounts as may be separately
awarded to Tenant for the value of Tenant's Trade Fixtures,
removal expenses, business dislocation damages, loss of
income, the unamortized cost of leasehold improvements paid
for by Tenant, and search and relocation expenses ("Tenant's
Costs"). In the event no such separate award is made for
Tenant's Costs, Tenant shall be entitled to receive from
Landlord that portion of Landlord's award specifically made
for Tenant's Costs so long as the same does not diminish the
award to which Landlord is otherwise entitled to receive.
Any award due Tenant as provided in this Section shall be
paid directly to Tenant by the condemning authority where
possible; where the award due Tenant is a portion of the
award paid to Landlord, Landlord shall hold such award in
trust for Tenant and shall pay over such portion as is due
Tenant promptly after receipt of such award from the
condemning authority.
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 entire Premises provided that in
any such case Tenant shall remain liable under this Lease
and further provided that the proposed assignee's or
sublessee's intended use does not violate any protected,
exclusive or restricted uses then in effect with respect to
the Premises or otherwise violate any other term, covenant
or condition contained in this Lease.
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.
10.2.1 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
performed by 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. .In 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 attempt to mitigate its
damages by using commercially reasonable efforts to relet
the Premises, proceed directly against Tenant without the
necessity of exhausting remedies against such assignee.
ARTICLE 11
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DEFAULT; REMEDIES
11.1 DEFAULT. The occurrence of anyone or more of
the following events shall constitute a default by Tenant
under this Lease:
11.1.1 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 Landlord to Tenant, such failure shall
continue for a period of ten (10) days.
11.1.2 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 thirty
(30) day period and thereafter diligently prosecutes such
cure to completion.
11.1.3 Institution by or against Tenant of any
bankruptcy, insolvency, reorganization, receivership or
other similar proceeding involving the creditors of Tenant,
which is not dismissed within ninety (90) days after the
commencement thereof.
11.1.4 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.
11.1.5 Dissolution, termination of existence, or
assignment for the benefit, of creditors of or by Tenant.
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 and re-enter the Premises by any lawful means, in
which case 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 including those damages set forth in
Subsection 11.2.2. Landlord shall use reasonable efforts to
attempt to mitigate its damages by making commercially
reasonable efforts to relet the Premises upon commercially
reasonable terms.
11.2.2 If Tenant defaults under this Lease and
Landlord elects to terminate Tenant's right to possession as
provided in Subsection 11.2.1, Tenant shall be liable to and
shall continue to pay Landlord Fixed Monthly Rent and all
Additional Rent as it becomes due until such time as
Landlord relets the Premises, so long as Landlord makes
commercially reasonable efforts to mitigate its damage and
relet the Premises as provided in Subsection 11.2.1.
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Landlord relets the Premises, Tenant shall, at Landlord's
option, either (a) pay Landlord, as it becomes due until the
expiration of the Term or the then running Renewal Term, the
difference between the rental amount and the amounts to be
paid for taxes, insurance premiums and other costs and
expenses obtained by Landlord upon such reletting of the
Premises (which rental amount shall be upon commercially
reasonable terms) and the Fixed Monthly Rent and Additional
Rent due from Tenant, with the excess amount, if any, being
applied to any future amounts owed by Tenant; or (b ) pay
Landlord the present value, if any, of the difference
between the rental amount and the amounts to be paid for
taxes, insurance premiums and other costs and expenses
obtained by Landlord upon such reletting of the Premises
(which rental amount shall be upon commercially reasonable
terms) and the Fixed Monthly Rent and Additional Rent due
from Tenant, in which event Tenant shall have no further
liability under the Lease. Present value shall be calculated
based on a five percent (5%) discount per annum.
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 reletting.
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 W ARRANTIES OF LANDLORD
Landlord represents, warrants and covenants as follows:
(i) As of the Commencement Date, Landlord will be
the fee owner of the Premises and has the legal right
and power to lease the Premises to Tenant for Tenant's
operation of the Premises for the Proposed Use or such
other uses consistent with the Gateway Performance
District; and
(ii) As of the date of execution of this Lease,
Landlord hereby acknowledges receipt of the Plans and
Specifications, approves of the Plans and
Specifications, and agrees to construct the Building
and improvements for the Premises in accordance with
the final plans and specifications which are based on
the Plans and Specifications and which are agreed to by
Landlord and Tenant; and
(iii) As of the date of execution of this Lease,
the Premises is zoned to permit the use of the Premises
for those principal uses which are permitted in the
Gateway Performance District including, without
limitation, the Proposed Use, and there are no
restrictions applicable to, upon or within the
22
Premises which would limit or prevent Tenant's use of
the Premises for the Proposed Use; and
(iv) There shall be no change to the Site Plan;
provided, however, that Landlord may make minor, site
specific modifications, which are necessary for the
development of the Premises and which do not in any way
affect the construction of the Building in accordance
with the terms of this Lease, upon obtaining the prior
written consent of Tenant which consent shall not be
unreasonably withheld; and
(v) There shall be no change to the Plans and
Specifications without the prior written consent of
Tenant which may be withheld in Tenant's sole
discretion.
The foregoing representations, warranties and agreements are
material considerations and inducements to Tenant in executing
this Lease, the breach of which will cause irreparable and severe
harm to Tenant. Without limiting any other right or remedy of
Tenant under this Lease or available to Tenant at law or equity
by reason of the breach of the representations, warranties,
guaranties and agreements herein set forth, Tenant shall have the
right to terminate this Lease at any time during the period of
such breach by providing written notice to Landlord. If Landlord
fails to cure such breach within thirty (30) days after receipt
of such written notice from Tenant, this Lease shall
automatically terminate. Notwithstanding the foregoing, once the
conditions set forth in Section 15.5 are complete such that
Landlord has no further construction obligations under the Lease,
Tenant shall have no right to terminate this Lease in connection
with Subsection (iv) and (v) of this Article 12.
ARTICLE 13
CONDITIONS PRECEDENT
13.1 PERMITS. Tenant has entered into this Lease
subject to Landlord obtaining the necessary governmental or
quasi-governmental permits, variances, licenses, permissions
or other authorizations (collectively "Permits") from the
applicable Public Authorities necessary for the construction
and operation of the Premises and the Building, excluding
Tenant's signs and all improvements thereto, built in
accordance with the Plans and Specifications. In the event
Landlord is unable to obtain the Permits required to
construct and operate the Premises, the Building and all
improvements thereto by the end of the Permitting Period,
Tenant shall have the right to terminate this Lease upon
thirty (30) days prior written notice to Landlord (which
termination shall be nullified if Landlord obtains any
outstanding Permits within such thirty (30) day period) and
declare it null and void and of no further force and effect,
in which event Landlord and Tenant shall have no further
liability hereunder.
13.2 DUE DILIGENCE MATERIALS. Landlord has
provided Tenant with copies of the following tests, surveys
and reports applicable to the Premises which Landlord has
obtained: (a) the most recent title commitment for the
Premises dated March 22, 2005 with copies of the exception
documents; (b ) the Subdivision Plat for the Shopping Center
and the Premises dated
23
February 15, 2005; (c) Phase I Environmental Report; and (d)
Geotechnical Report (the "Due Diligence Materials"). As of
the date of this Lease, Tenant has reviewed the Due
Diligence Materials, has approved of the Due Diligence
Materials and shall have no right to terminate this Lease in
connection with anything contained therein.
13.3 ENVIRONMENTAL COMPLIANCE. The Lease is also
contingent upon Landlord delivering the Premises to Tenant
on the delivery Date free of all Hazardous Materials (as
previously defined) and in compliance with all Environmental
Laws (as previously defined).
13.4 NON-DISTURBANCE AND ATTORNMENT AGREEMENT.
This Lease is further contingent upon Landlord obtaining a
non-disturbance and attornment agreement in favor of Tenant,
in a form reasonably acceptable to Tenant, in accordance
with Section 16.3. In the event Landlord is unable to obtain
such an agreement in favor of Tenant within thirty (30) days
after the Delivery Date, Tenant shall have the right to
terminate the Lease and declare it null and void and of no
further force and effect, in which event Landlord and Tenant
shall have no further liability hereunder.
13.5 LANDLORD OBTAININE: FEE TITLE TO THE
PREMISES. This Lease is also contingent upon Landlord
obtaining fee title to the Premises pursuant to the Purchase
Agreement. In the event Landlord does not have fee title to
the Premises by July 6,2005, Tenant shall have the right to
terminate the Lease upon thirty (30) days prior written
notice to Landlord (which termination shall be nullified if
Landlord obtains fee title to the Premises within such
thirty (30) day period) and declare it null and void and of
no further force and effect.
13.6 CROSS-ACCESS AND PARKING AGREEMENT. This
Lease is contingent upon Landlord's Affiliate or Landlord
obtaining and filing of record a cross-access agreement with
the Shopping Center Owner in a form reasonably acceptable to
Tenant, whereby Tenant, together with its agents, employees,
customers, and invitees, has the right to vehicular and
pedestrian access over and across the parking, drive aisles,
and other paved areas of the Shopping Center Site for
ingress to and egress from the Premises and all public
streets and highways (the "Easement Agreement"). The
Easement Agreement shall also include a restriction upon the
Shopping Center Owner which provides that the Shopping
Center Owner shall not (a) add, construct, or place any
building, edifice, structure, or obstruction (whether
permanent or temporary), or add trees or change the
landscaping, in the Protected Area (as depicted on the Site
Plan); and (b) alter or relocate the Access Way as depicted
on the Site Plan; and ( c ) permit, while the Premises is
being used for the Proposed Use, any other part of the
Shopping Center to be used or occupied as a retail jewelry
store or for the primary use of the retail sale of jewelry.
Upon prior written request from Tenant, Landlord agrees to
join in and execute any reasonable documents, as reasonably
requested by Tenant, which Tenant believes is reasonably
necessary in order for Tenant to enforce the Easement
Agreement. If permissible under the Easement Agreement,
Landlord shall execute such documentation (including an
assignment of Landlord' s rights) to allow Tenant to enforce
the provisions of the Easement Agreement. The Easement
Agreement shall provide reciprocal rights to the Shopping
Center Owner, together with its agents, employees, customers
and invitees, for vehicular and pedestrian access over the
parking, drive aisles and other paved areas of the
Premises.' Landlord further agrees to obtain an appropriate
24
endorsement or other affirmative insurance in the title
policy for the Premises insuring the rights under the
Easement Agreement. In the event Landlord fails to obtain
and file of record the Easement Agreement, and obtain the
necessary title endorsement or other affirmative insurance
set forth herein, prior to July 6, 2005, Tenant shall have
the right to terminate the Lease upon thirty (30) days prior
written notice to Landlord (which termination shall be
nullified if Landlord files the Easement Agreement of record
or obtains the appropriate title endorsement or other
affirmative insurance within such thirty (30) day period)
and declare it null and void and of no further force and
effect, in which event Landlord and Tenant shall have no
further liability hereunder. Tenant agrees to pay directly
to Shopping Center Owner as Rent, any and all costs and
charges which become due under the Easement Agreement in
accordance with the terms of the Easement Agreement.
Landlord agrees that Landlord shall promptly deliver to
Tenant (a) all statements and supporting documentation for
reimbursement of costs and expenses under the Easement
Agreement; and (b ) copies of all notices received from the
Shopping Center Owner -in connection with the Easement
Agreement. Landlord further acknowledges and agrees that
Landlord shall not grant its consent to any changes or other
modifications of the Easement Agreement without Tenant's
prior written consent.
13.7 TENANT REIMBURSEMENT. If Tenant terminates
the Lease due to Landlord's failure to comply with Sections
13.5 and 13.6 of this Lease, Landlord shall be required to
reimburse Tenant within thirty (30) days after Tenant's
termination of the Lease for all of the actual costs and
expenses paid by Tenant for architectural drawings.
ARTICLE 14
[Intentionally Omitted]
ARTICLE 15
CONSTRUCTION
15.1 PERMITS. Landlord shall use its diligent
efforts to obtain the Permits (as previously defined) on or
before the expiration of the Permitting Period. In the event
Landlord fails to obtain the Permits by the end of the
Permitting Period, Tenant shall have the right to terminate
this Lease and declare it null and void and of no further
force and effect as provided in Section 13.1. Once Landlord
has secured all necessary Permits, Landlord shall provide
Tenant with written notice (the "Permit Approval Notice").
15.2 LANDLORD'S WORK. Upon providing the Permit
Approval Notice, Landlord shall construct the Premises and
related improvements on the Premises Site in accordance with
the Final Plans and Specifications at no cost to Tenant
(except as provided in Section 2.3), in a good and
workmanlike manner, in accordance with the Site Plan and the
Plans and Specifications attached hereto as Exhibit "C" 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 include causing the construction of all parking
areas, roads, drive aisles, and the main access way
necessary for access to and parking for the Premises so that
Tenant may open and operate from the Premises for the
Proposed Use, whether complete~ by Landlord or the Shopping
Center Owner in accordance with the Purchase
25
Agreement. Landlord's Work shall be completed, excepting
Punchlist Items, and possession of the completed Premises
shall be delivered to Tenant for the commencement of
Tenant's Work within the Construction Period, subject to
Force Majeure. Landlord and Tenant hereby agree that the
Construction Period is based on Tenant's delivery of the
final Plans and Specifications to Landlord by June 30,2005.
In the event Tenant fails to deliver the formal Plans and
Specifications by June 30, 2005, the Construction Period and
the November 23, 2005 date set forth in Section 15.6 shall
each be extended one day for each day after June 30, 2005
until Tenant delivers the final Plans and Specifications to
Landlord; provided, however, that such failure to deliver
the final Plans and Specifications shall in no way be deemed
to be a default by Tenant under this Lease. Tenant shall
have the right to install on the roof of the Premises a
satellite dish in accordance with all applicable laws and
provided such satellite dish is properly screened.
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. In
the event Landlord and Tenant are simultaneously performing
work on the Premises, Landlord and Tenant hereby agree to
cooperate with one another and work in good faith to
complete such work without unreasonably interfering with one
another in the completion of such work.
15.4 INSPECTION AND 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 (the "Inspection") and shall compile a list of
items which have not been completed as required in the Plans
and Specifications. If after the Inspection, there are any
items other than Punchlist Items which Landlord has failed
to complete or not properly completed in accordance with the
Plans and Specifications, Landlord's Work shall not be
deemed to be completed and Landlord shall promptly complete
such items within the Construction Period. If after the
Inspection, there are only Punchlist Items remaining,
Landlord's Work shall be deemed completed provided Landlord
completes such Punchlist Items within twenty-one (21) days
after the Delivery Date. Tenant shall have the right to
supplement the list of Punchlist Items during the first
twenty-one (21) days following the Delivery Date and
Landlord shall use reasonable efforts to complete such
supplemental Punchlist Items within twenty-one (21) days
after Landlord's receipt of a supplemental list of Punchlist
Items. If Landlord fails to complete the Punchlist Items or
the supplemental Punchlist Items within the time periods set
forth above, Tenant may elect to complete such Punchlist
Items for and on behalf of Landlord and at Landlord' s cost
and expense by providing prior written notice to Landlord.
If Landlord fails to complete the Punchlist Items within
five (5) days after the receipt of such notice, Tenant shall
have the right to complete the Punchlist Items and, at
Tenant's option, (a) recover the cost of completing such
Punchlist Items, including interest at the rate of twelve
percent (12%) per annum from the date of the advance of such
costs until the date of repayment; or (b ) set-off and
deduct the cost of completing the Punchlist Items, together
with interest as aforesaid, from Fixed Monthly Rent and
Additional Rent. In no event shall Tenant be required to
accept delivery of the Premises unless and until Landlord
has fully completed Landlord's Work (excepting Punchlist
Items) and all conditions to the occurrence of the Delivery
Date have been satisfied.
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15.5 PRE-COMPLETION ACCPECTANCE. 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 prior to Landlord's completion of
Landlord's Work ("Pre-Completion Acceptance"), 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 provided in Section 15.4, as soon as possible, and
in so doing shall not interfere, and shall cause its
contractors not to interfere, with the fixturing,
furnishing, equipping and stocking of the Premises by Tenant
and its contractors. In the event Tenant has opened for
business in the Premises and Landlord still has not fully
completed Landlord's Work (excepting the Punchlist Items),
Landlord shall still be obligated to complete Landlord's
Work and the Punchlist Items, and Tenant shall have the
right to offset or withhold Rent until such time as Landlord
has fully completed the same. Notwithstanding the foregoing,
once (i) Tenant has taken possession of the Premises; and
(ii) Landlord has fully completed Landlord's Work; and (iii)
all Punchlist Items have been completed, and (iv) the
Warranties (as previously defined) 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 Landlord has not
completed Landlord's Work and the Delivery Date has not
occurred by November 23, 2005 (subject to Force Majeure),
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"). If Tenant provides timely
Notice of Cancellation and Landlord does not deliver the
Premises to Tenant with Landlord's Work complete within
fifteen (15) days after receipt of the Notice of
Cancellation, this Lease shall terminate and be null and
void and of no further force and effect, 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 within 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 the effective date of Tenant's
Notice of Cancellation (subject to Force Majeure). 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 for in this Section constitutes a reasonable
estimate of the damages that Tenant is likely to incur in
the event of a breach by Landlord as herein provided, and
shall not constitute a penalty.
27
ARTICLE 16
GENERAL PROVISIONS
16.1 QUIET ENJOYMENT. Subject to the teffi1S 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, Fixed Monthly Rent, the
Taxes, insurance premiums and other Additional Rent payable
hereunder and all sums becoming due under the Easement
Agreement, shall be deemed to be "Rent".
16.3 SUBORDINATION. This Lease shall be subject and
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, within thirty
(30) days of written request by Landlord, to execute and
deliver to Landlord and its lender(s) a subordination, non-
disturbance and attornment agreement in a foffi1 ,
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 limit Tenant's rights or expand
Tenant's obligations under this Lease. Landlord if agrees to
obtain a non-disturbance and attornment agreement from the
holder of any mortgage ~ given with respect to the Premises
existing immediately following Landlord' s acquisition of
the I Premises or at such other times thereafter 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
perfoffi1ed 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 evidence,
including photostat or certified copy of deed or
28
assignment, showing 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 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.
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 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, 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 ▇▇▇▇ therefore. If Tenant shall not 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 Term.
16.4.1 Tenant shall have the right, no earlier than
thirty (30) days before the date Tenant vacates the
Premises, to place a sign at the front of the Premises, in a
place visible to Tenant's customers, directing Tenant's
customers to another of Tenant's stores and/or providing
Tenant's customers with a telephone number as long as such
signage does not violate (i) applicable laws, ordinances,
orders, rules or regulations of any governmental authority;
or (ii) covenants running with the Premises. Tenant shall be
entitled to leave said sign at the front of the Premises
until the earlier to occur of (i) three months after Tenant
vacates the Premises, or (ii) the date a new tenant takes
possession of the Premises.
16.5 ESTOPPEL CERTIFICATES. Each party (each a
"Responding Party") shall at any time upon not less than
thirty (30) 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 the
Requesting Party and reasonably acceptable to the Responding
Party certifying and acknowledging the following: (i) that
this Lease represents the entire agreement between Landlord
and Tenant, and is unmodified and ~ full force and effect
(or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full
29
effect) and the date to which the Fixed Monthly Rent and
other charges are paid in advance, if any; and (ii) that
there are not, to the Responding Party's knowledge, any
uncured defaults on the part of the Requesting Party, or
specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any 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, 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 form" memorandum of this Lease for
recording purposes. Such memorandum shall be in the form
reasonably prescribed by Landlord, and the party requesting
same shall be responsible for all costs, fees and taxes
incident to recording same. In addition, any termination
agreement shall be similarly recorded, which agreement shall
survive the termination of this Lease. In no event shall any
such memorandum be recorded prior to Landlord's acquisition
of the Premises.
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, describing the Premises and
setting forth the Fixed Monthly Rent and annual Rent to be
paid by Tenant hereunder, but containing no further
provisions of this Lease, which Supplemental Lease Agreement
shall be prepared by Tenant and which may be recorded by
either party with the party
30
recording same to be responsible for all costs, fees and
taxes incident to recording same. If the Commencement Date
is firmly 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 active and good faith
negotiations for a new lease at the expiration or
termination of the Lease Term, then the Fixed Monthly Rent
payable by Tenant during Tenant's continuing possession
shall be at the rate last paid by Tenant hereunder, but only
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 125% 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 WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUPANCY 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 automatically 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
partners, members, officers, shareholders, principals or
employees shall have any personal liability in respect of
any of the terms, covenants, conditions or provisions of
this Lease. In the event of a breach or default by
31
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, and no other property or
assets of Landlord, or of its partners, members, officers,
shareholders, principals or employees shall be subject to
levy, execution or other enforcement procedures for the
satisfaction of Tenant's and/or such person's 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, fIrm,
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 in 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, firn1s 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.
16.1 7 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
pern1itted by law, Tenant hereby waives any and all rights
of redemption with respect to this Lease. Tenant hereby
waives any rights it
32
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. Unless specifically and
expressly stated to the contrary, wherever Landlord's
consent or approval shall be required herein, such consent
or approval shall not be unreasonably or arbitrarily
withheld or delayed.
16.25 NO CONTINUOUS OPERATION/LANDLORD'S RIGHT OF
RECAPTURE. (a) 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; (b ) If at any time during the Lease Term Tenant, or
its assignee or sublessee, if any, shall discontinue its
operations at the Premises for a period of greater than one
hundred eighty (180) consecutive days ( except as may result
from fire or other casualty, a taking under the power of
eminent domain or condemnation, or periods of remodeling),
Landlord may, at any time following such one hundred eighty
day (180) period, and prior to any recommencement of
operations, terminate this Lease upon sixty (66) days' prior
written notice to Tenant. If Tenant, or its assignee or
sublessee, if any, reopens for business or recommences its
operations within such sixty (60) day period, Landlord' s
right to terminate the Lease shall be nullified and of no
further force and effect. If Landlord elects to terminate
the Lease as provided herein, the Lease shall be null and
void and of no further force and effect, and the parties
hereto shall be released from any and all further unaccrued
liability with respect to this Lease from and after the
effective date of such termination.
16.26 FINANCIAL STATEMENTS. Within thirty (30) days
after receipt of written request from Landlord, but not more
often than once during any Lease Year, Tenant shall provide
to Landlord a copy of the financial statements for the most
recently completed year-end of Sterling Jewelers Inc.
("Tenant's Guarantor"), the guarantor of Tenant's
obligations under the Lease. Landlord's request for
financial statements for a given fiscal year must be sent at
least one hundred twenty (120) days after the end of such
fiscal year of Tenant's Guarantor. Notwithstanding the
foregoing, Landlord, and any lender or prospective purchaser
that requests such financial statements, must execute
Tenant's Guarantor's standard confidentiality agreement
prior to receiving such financial statements.
33
16.27 GUARANTY OF LEASE. This Lease is conditioned
on Tenant delivering to Landlord, simultaneously with the
execution copies of this Lease, four (4) copies of a
Guaranty of Lease executed by Tenant's Guarantor in the form
set forth on attached Exhibit "H".
[SIGNATURES CONTINUED ON NEXT PAGE]
34
IN WITNESS WHEREOF, the parties have executed this Lease as of
the 30th day of
June 2005
Wl'fNESSES
LANDLORD:
LOUDON ROAD N.H.
RTE. 9 DEVELOPMENT, LLC
a New York limited
liability company
/s/ ▇▇▇▇▇▇▇▇ J Ocreber By: Westlake Holding, Inc.
Print Name: ▇▇▇▇▇▇▇▇ J Ocreber Its: Sole Member
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
Print Name ▇▇▇▇▇ ▇▇▇▇▇
Its: President
TENANT:
STERLING INC
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ an Ohio corporation
Print Name ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ J Nagelleirk
Print Name ▇▇▇▇▇▇▇ J Nagellerik
STATE OF NEW YORK )
)SS:
COUNTY OF ONONDAGA )
BEFORE ME, a Notary Public, in and for said County and
State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇, the President of
Westlake Holding, Inc., the Sole Member of LOUDON ROAD N.H. RTE.
9 DEVELOPMENT, LLC, 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 30th day of June 2005
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Notary Public
[notary seal]
STATE OF OHIO )
)SS
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public, in and for said County and
State, personally appeared ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, the Executive Vice
President of Sterling 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 27th day of June 2005
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Notary Public
[notary seal]
36
EXJDBIT A
Legal Description of the Premises
Berkshire Development -London Road Concord Proposed Lot 1
Commencing at a steel pin on the northerly sideline of Loudon
Road, said steel pin marking the southeasterly most ▇▇▇▇▇ of the
lot herein described and being S63 53'05"W a distance of 145.97
feet from a granite bound marking the southeasterly ▇▇▇▇▇ of
other land of the Grantor and the southwesterly ▇▇▇▇▇ of land now
or formerly of Milano Real Estate Associates, LLC, thence S63 53
'05"W a distance of 89.18 feet, along said Loudon Road, to a
steel pin; thence N35 33' 45"W a distance of 185.26 feet to a
steel pin; thence ▇▇▇ ▇▇'▇▇"▇ a distance of 145.50 feet to steel
pin; thence S35 34 '20"E a distance of 105.40 feet to a steel
pin; thence by a curve to the left, having a central angle of 24
22'03" and a radius of 184.50 feet, a distance of 78.47 feet to a
point; thence by a curve to the right, having a central angle of
47 21 '09" and a radius of 39.50 feet, a distance of 32.65 feet
to the point of beginning Containing 26,055 square feet or 0.60
acres.
35