ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this
"Assignment") made this 5 day of February, 2004, by and
between TRANSLAKEWOOD, LLC, a Nevada limited liability
company ("Assignor"), having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and AEI REAL ESTATE
FUND XVIII LIMITED PARTNERSHIP, a Minnesota limited
partnership, and AEI NET LEASE INCOME & GROWTH FUND XIX
LIMITED PARTNERSHIP, a Minnesota limited partnership (as
tenants in common, together collectively referred to as
"Assignee"), having an address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Assignor is the owner of certain real property
located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Property");
WHEREAS, Assignor has leased the Property to Sterling
Jewelers Inc., a Delaware corporation ("Sterling"), pursuant
to that certain Lease Agreement dated August 6, 2002 (the
"Lease"); and
WHEREAS, Assignor desires to assign its right, title
and interest in and to the Lease to AEI Real Estate Fund
XVIII Limited Partnership, an undivided fifty percent
(50.0%) interest as a tenant in common; and AEI Net Lease
Income & Growth Fund XIX Limited Partnership, an undivided
fifty percent (50.0%) interest as a tenant in common, and
Assignee desires to assume Assignor's right, title and
interest in and to the Lease;
NOW, THEREFORE, in consideration of the mutual
agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which
are acknowledged by each of the parties hereto, Assignor and
Assignee do hereby agree as follows:
1. Assignment. Assignor hereby gives, grants,
bargains, sells, conveys, transfers and sets over unto
Assignee, its successors and assigns, as of the date first
above written (the "Effective Date"), all of Assignor's
right, title and interest in and to the Lease.
2. Acceptance of Assignment and Assumption. Assignee
hereby accepts the foregoing assignment, and hereby assumes
and agrees to be bound by and perform all of Assignor's
obligations and liabilities to be performed and/or occurring
under the Lease on or after the Effective Date, including,
without limitation, the obligations for return of security
deposits as provided in the Lease and/or required by law,
and any and all obligations for any and all leasing
commissions, brokerage fees and similar payments which
become due and payable after the Effective Date, including,
without limitation, any and all leasing commissions,
brokerage fees and similar payments which become due and
payable in connection with the exercise of any option or
right under the Lease.
3. Indemnification. (a) Assignor hereby indemnifies
Assignee, and agrees to defend and hold harmless Assignee
from and against any and all liability, loss, damage and
expense, including without limitation reasonable attorneys'
fees, which Assignee may or shall incur under the Lease by
reason of any failure or alleged failure of Assignor to have
complied with or to have performed, before the Effective
Date, the obligations of the landlord thereunder which were
to be performed before the Effective Date.
(b) Assignee hereby indemnifies Assignor, and
agrees to defend and hold harmless Assignor from and against
any and all liability, loss, damage and expense, including
without limitation reasonable attorneys' fees, which
Assignor may or shall incur under the Lease by reason of any
failure or alleged failure of Assignee to comply with or
perform, on or after the Effective Date, all the obligations
of the landlord thereunder which are to be performed on or
after the Effective Date.
4. Successors and Assigns. The terms and conditions
of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective
successors and assigns.
5. Retained Rights. Assignee hereby agrees that Assignor
may, at Assignor's election and expense, proceed at law or
equity to collect any delinquent rents accruing under the
Lease prior to the Effective Date. Assignor hereby agrees
that Assignee shall have no obligation to collect any rent
due prior to the Effective Date under the Lease; provided,
however, that in the event Assignee is paid rent from a
tenant that has delinquent rent accruing prior to the
Effective Date, and such payment is in excess of current
rent due and payable under the Lease and any collection
costs incurred by Assignee to collect such rents, then
Assignee agrees to pay such excess amount to Assignor as
soon as reasonably practicable after the date of receipt by
Assignee.
6. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and
the same instrument.
[The remainder of this page has been intentionally left
blank. Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the day and year first set
forth above.
ASSIGNOR: TRANSLAKEWOOD, LLC,
a Nevada limited liability company
By: TransLakewood Management
Corporation,
a Nevada corporation, its
managing member
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇
Title: President
STATE OF NEVADA )
) ss.
COUNTY OF ▇▇▇▇▇ )
The foregoing was acknowledged before me this 29th day
of January, 2004, by ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇, the President of
TransLakewood Management Corp., a Nevada corporation, the
manager of TransLakewood, LLC, a Nevada limited liability
company, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said
corporation by authority of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State of
aforesaid, the day and year last above-written.
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Notary Public
[notary stamp]
ASSIGNEE: AEI REAL ESTATE
FUND XVIII LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI FUND MANAGEMENT XVIII, INC.,
a Minnesota corporation, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
AEI NET LEASE INCOME & GROWTH
FUND XIX LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI FUND MANAGEMENT XIX, INC.,
a Minnesota corporation, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The foregoing was acknowledged before me this day of
January, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the President of AEI
Fund Management XVIII, INC., a Minnesota corporation, the
General Partner of AEI Real Estate Fund XVIII Limited
Partnership, a Minnesota limited partnership, who
acknowledged the execution of the foregoing instrument to be
the voluntary act and deed of said corporation by authority
of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State of
aforesaid, the day and year last above-written.
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Notary Public
[notary stamp]
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The foregoing was acknowledged before me this day of
January, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the President of AEI
Fund Management XIX, INC., a Minnesota corporation, the
General Partner of AEI NET LEASE INCOME & GROWTH FUND XIX
LIMITED PARTNERSHIP, a Minnesota limited partnership, who
acknowledged the execution of the foregoing instrument to be
the voluntary act and deed of said corporation by authority
of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal in the County and State of
aforesaid, the day and year last above-written.
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Notary Public
[notary stamp]
EXHIBIT A
Legal Description
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of
Jefferson, State of Colorado, as shown on the plat recorded
on December 21, 2001, in Plat Book 164, at Map 47, and at
Reception No. F1385925.
Store No. 422
Colorado ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ County, Colorad
LEASE
BETWEEN
TRANSLAKEWOOD LLC
a Nevada limited liability company
AND
STERLING JEWELERS INC
a Delaware corporation
Dated August 6, 2002
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 I
FUNDAMENTAL LEASE PROVISIONS
The provisions in this Article shall be referred to in
this Lease as the "Fundamental Lease Provisions."
1.1 Exhibits to Lease. The following exhibits are
attached to and made a part of this Lease, and are
incorporated herein by reference:
Exhibit " A ". The description of the Premises.
Exhibit "B". The site plan showing the location of the
Premises (parcel D-2 or Lot 2) and the Building, parking
areas, driveways and common area and containing other
general information relative to the development of the
Premises Site (the "Site Plan").
Exhibit "C". A list of the plans and specifications
prepared and provided by Tenant and approved by Landlord,
wherein are detailed Landlord's Work (as hereinafter
defined) in the Premises. Exhibit "C" shall include the
plans and specifications for Tenant's satellite dish.
Exhibit "C-l ". The list of items which comprise
Tenant's Work (as hereinafter defined).
Exhibit "D". The plans and specifications prepared and
provided by Tenant and approved by Landlord, wherein are
detailed Tenant's exterior sign(s).
Exhibit "E". The projected cost to perform Landlord's
Work.
Exhibit "F". Tenant's Trade Fixtures which shall remain
the personal property. of Tenant and may be removed upon
expiration or termination of this Lease.
Exhibit "G". The Prohibited Uses.
Exhibit "H". The certification of gross sales.
1.2 Definitions. Unless otherwise defined herein,
capitalized terms used in this Lease shall have the meanings
listed in the Fundamental Lease Provisions.
Building: shall mean the building containing
approximately 6,000 square feet of floor
area and all improvements thereto
(including Tenant's Work) to be
constructed on the Premises and as
identified on Exhibit "B" attached
hereto.
Colorado ▇▇▇▇▇ Purchase
and Sale Agreement: shall mean that certain
.agreement between Colorado ▇▇▇▇▇
Residual Limited Partnership, as Seller,
and Landlord, as buyer, entered into on
or about April 24, 2002 whereby Landlord
has the right to purchase the Premises.
Commencement Date: shall mean the earlier of sixty
(60) days after the Delivery Date or
.the day that Tenant opens for and
conducts business in the Premises.
Construction Period: shall mean the period
commencing upon the execution of this
Lease and ending one hundred fifty (150)
days following the date of the Permit
Approval Notice
Cross Access Areas: shall have the same meaning as set
forth in the Deed Restrictions.
Deed Restrictions: shall mean those certain
restrictions contained in the Deed which
transferred the Premises from Colorado
▇▇▇▇▇ Residual Limited Partnership to
Landlord pursuant to the Colorado ▇▇▇▇▇
Purchase and Sale Agreement.
Delivery Date: shall mean the date that
Landlord delivers the Premises to Tenant
with Landlord's :Work substantially
complete such that Tenant may reasonably
enter the Premises to perform Tenant's
Work.
Fixed Monthly Rent: 12% of the Premises Cost (as
detailed on Exhibit "E") divided by
twelve, subject to proration and
adjustment as provided in Section 2.3.
Force Majeure: shall mean the occurrence of
one of the below listed events which
prevents, delays or hinders the
performance of any act required
hereunder: strikes, lockouts, inability
to procure materials, fai1ure of power,
restrictive governmental laws or
regulations, riots, insurrection, war,
or any other reason of a like. nature
not the fault of the party delayed in
performing work or doing any act
required under the terms of this Lease.
Gross Leasable Area: shall mean the number of
square feet of the Building.
Increase Date: fifth (5th) anniversary of the
Commencement Date, and every five (5)
years thereafter, including Renewal
Teffi1s ten percent (10%) twenty (20)
Lease Years and any Partial Lease Years,
commencing on the Commencement Date.
Landlord: TransLakewood, LLC,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
F AX: (▇▇▇) ▇▇▇-▇▇▇▇
Landlord's Work: shall mean the work to be
perfoffi1ed by or at the direction of
Landlord in constructing the Premises,
the Building and related improvements,
as more particularly specified in
Article 15 below and Exhibit "C".
Lease Year: shall mean a period of twelve
(12) consecutive calendar months during
the Term, the first of which shall begin
on the first day of February next
following the Commencement Date, (unless
the Commencement Date shall. be the
first day of February; in which event
the first lease year shall begin on the
Commencement Date ) and ending on the
following January 31.
Maintenance Assessments: shall Have the' same meaning as is
set forth in the Deed Restrictions. .
Master Declaration: shall mean that certain Master
Declaration of Easements, Covenants,
Conditions and Restrictions made by
Colorado ▇▇▇▇▇ Limited PaI:1nership and
Colorado ▇▇▇▇▇ Residual Partnership and
recorded on November 13, 2001 in the
records of Jefferson County, Colorado at
Reception Number F1357452.
Partial Lease Years: 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.
Permitting Period: shall mean the period beginning on
the date Landlord executes this Lease
and ending on June 20, 2002.
Permitted Uses: shall mean a retail jewelry store
operating under the trade name "Jared,
The Galleria of Jewelry" and which is
substantially identical (including,
without limitation, with respect to
store design, inventory and operations)
to those certain Jared, The Galleria of
Jewelry stores currently operating in
the Denver, Colorado region; provided,
however, Tenant may operate the Premises
under a different trade name so long as
all Jared, The Galleria of Jewelry
stores in the Denver, Colorado region
are operating under such modified trade
name; or such other uses as permitted by
Section 3.1.
Plans and Specifications: shall mean the plans and
specifications for the construction of
the Premises, a list of which is
attached hereto as Exhibit "C", as the
same may be modified by written
agreement by and between Landlord and
Tenant.
Premises that certain real property
more particularly described in Exhibit A
which is generally depicted as Parcel D-
2 on the Site Plan, together with all
improvements thereon, located in
Jefferson County, Colorado. The
Premises shall include the right of
Tenant, together with its employees,
agents, customers, business invitees,
business guests and licensees, to use
that certain non-exclusive, perpetual
easement for pedestrian and vehicular
traffic, ingress and egress, and access
to, from and between the Premises and
that certain tract or parcel of land
designated on the Site Plan as Parcel D-
l, the- Shared Driveway and the Cross
Access Area, and all access drives,
access roads and other improvements
installed for purposes of affording
access, ingress and egress which are
located from time to time on the
Premises and Parcel D-l.
Premises Cost: shall mean the cost to
perfonl1 Landlord's Work, which cost is
computed on Exhibit "E" attached hereto
and made a part hereof, subject to
adjustment as provided in Article 2.3.
Premises Site: shall mean the land described
on Exhibit " A ".
Promotion Assessment: shall mean the annual
assessment for the purpose of
advertising and promoting businesses to
be conducted upon the Premises and the
other properties in the development
where the Premises are located as
provided in Article 7 of the Master
Declaration.
Renewal Terms: two (2) terms of five (5) year(s)
each.
Seller: shall mean Colorado ▇▇▇▇▇ Residual
Limited Partnership.
Shared Driveway: shall have the same meaning as set
forth in the Deed Restrictions.
Sign Drawings: shall mean the plans and
specifications for Tenant's exterior
sign (s) on the Premises, in the form of
Exhibit "D", as the same may be modified
by written agreement by and between
Landlord and Tenant
Study Period: shall mean that period of time
commencing on the Effective Date of the
Colorado ▇▇▇▇▇ Purchase and Sale
Agreement (as defined therein) and
ending sixty (60) days thereafter.
Tenant: Sterling Jewelers Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Department
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇ McD.owell LP A
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇, Esq.
F AX: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant's Work: shall mean the work, if any,
to be perfonl1ed by or at the direction
of Tenant in fixturing the Premises as
more specifically identified on Exhibit
"C-l ", attached hereto.
Title Commitment: shall have the same meaning as set
forth in the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement.
Title Matter: shall have the same meaning as
set forth in the Colorado ▇▇▇▇▇ Purchase
and Sale Agreement.
Title Review Period: shall mean the time period up
to and including June 7, 2002.
Trade Fixtures: those items listed on attached
Exhibit "F", which are and shall remain
the personal property of Tenant.
ARTICLE 2
TERM AND RENT
2.1 Term. The Initial Term of this Lease shall be as
set forth in the Fundamental Lease Provisions. Provided
Tenant is not then in default under this Lease Tenant shall
have the option to extend the Initial Term by the number of
successive Renewal Terms described in the Fundamental Lease
Provisions by giving Landlord written notice of its election
to extend the term of this Lease by the succeeding Renewal
Term not less than one hundred eighty (180) days prior to
expiration of the Initial Term or the then-running Renewal
Term as the case may be. Excepting the amount of the Fixed
Monthly Rent, as adjusted, the terms and conditions of this.
Lease shall apply during each Renewal Tenn. The Initial
Term, as it may be extended by one or more Renewal Terms,
shall be hereinafter referred to as the "Lease Term".
2.2 Intentionally Omitted.
2.3 Fixed Monthly Rent. For the use and occupancy of
the Premises, Tenant shall pay Landlord the Fixed Monthly
Rent, in advance and without demand, commencing on the
Commencement Date and continuing on the first day of each
calendar month thereafter during the Lease Term, without any
offset or deduction except as specifically provided for
herein. The Fixed Monthly Rent in effect immediately prior
to the Increase Date shall increase by the Increase
Percentage on each Increase Date. Should the Lease Term
commence on a day other than the first day of a calendar
month, then the rental for such first fractional month shall
be computed on a daily basis for the period from the
Commencement. Date to the end of such calendar month at an.
amount equal to 1/30th of the Fixed Monthly Rent for each
day. Should the Lease Term end on a day other than the last
day of a calendar month, then the rental for such fractional
month shall be computed on a daily basis at an amount equal
to 1/30th of the Fixed Monthly Rent for each day. Tenant
shall pay Landlord the Fixed Monthly Rent in lawful money of
the United States at the address for Landlord set forth in
the Fundamental Lease Provisions, or to such other persons
or at such other places as Landlord may designate in writing
to Tenant. Landlord and Tenant acknowledge that the Premises
Cost computation on Exhibit "E" is an estimate, and agree to
supplement and/or amend Exhibit "E" after the Premises Cost
is actually determined. Landlord and Tenant shall
retroactively adjust the Fixed .Monthly Rental payments once
the computation of Exhibit "E" has been finalized. In the
event the cost of developing and
constructing the Premises, including the Building and
related improvements, increases as a result of a change in
the Plans and Specifications requested by Tenant or an
unforeseen event or circumstance beyond the control of the
parties hereto, such increase in cost shall, at the option
of Tenant, (i) be paid by Tenant; or (ii) be added to the
Premises Cost and Fixed Monthly Rent shall be adjusted
accordingly; provided, however, that if the additional cost
of developing and constructing the Premises is due to the
gross negligence or willful misconduct of Landlord, then
Tenant shall have no liability therefor and the Premises
Cost and Fixed Monthly Rent shall not be increased as a
result thereof, such cost being the sole responsibility of
Landlord.
2.4 Additional Rent. In addition to the Fixed Monthly
Rent, as increased, Tenant shall pay to the parties
respectively entitled thereto all insurance premiums, Taxes
(as defined in Article 4), the Maintenance Assessments (as
defined in Section 2.8), the Promotion Assessment ( as
defined in Section 2.8), operating charges, maintenance
charges, construction costs, reasonable accounting and legal
fees, and any other charges, costs and expenses which arise
or may be contemplated under any provision of this Lease
during the Lease Term (collectively , the "Additional
Rent"). Tenant shall furnish to Landlord, promptly after
payment of any Taxes or insurance premiums, and, with
respect to ally other Additional Rent, promptly upon request
of Landlord, official receipts or other satisfactory proof
evidencing payment of such Additional Rent. Upon Tenant's
failure to pay such Additional Rent on more than one
occasion during any twelve month period, where after written
notice thereof from Landlord to Tenant such second event of
failure shall continue for a period of ten (10) days,
Landlord shall have the option to require Tenant to deposit
with Landlord (i) funds sufficient for the payment of the
current. Additional Rent required to be paid by Tenant
hereunder, and (ii) one-twelfth of the current annual or
annualized Additional Rent, as the case may be ( or those of
the preceding years if the current amounts thereof have not
been fixed), in advance and on the same day upon which the
Fixed Monthly Rent is due.
2.5 Late Charge. If any installment of the Fixed
Monthly Rent, or any other payment provided for under this
Lease which is payable by Tenant, is not received by
Landlord within ten (10) days after written notice from
Landlord to Tenant that such payment is overdue, Tenant
shall pay Landlord an amount equal to 4% of the overdue
amount as a late charge (the "Charge"). Landlord and Tenant
agree that the Late Charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of
any such late payment by Tenant. Acceptance of the Late
Charge by. Landlord shall not constitute a waiver of
Tenant's default, if any, with respect to the overdue
amount, nor prevent Landlord from exercising ;any other
rights and remedies available to Landlord under this Lease.
2.6 Interest on Overdue Amounts. The Fixed Monthly
Rent, the Additional Rent and all other amounts due Landlord
under this Lease which are: not paid when due shall bear
interest at a per annum rate equal to the prime rate of
interest charged by the then largest chartered bank in the
state where the Premises is located plus 2% from the date
due until paid; provided, however, that if such rate sha1J
..exceed the lawful rate of interest which, Landlord is
entitled to , charge under applicable law, then the per
annum rate of interest on any such overdue amounts shall be
the maximum rate permitted by applicable law.
2. 7 Net Lease. This Lease is what is commonly called a
"triple net lease," it being understood that Landlord shall
receive the Fixed Monthly Rent free and clear of any and all
Taxes, other Additional Rent, liens, charges, liabilities or
expenses of any nature whatsoever incurred in connection
with the ownership and operation of the Premises.
2.8 Maintenance Assessments and Promotion Assessment:
Public Improvement Fees. Landlord and Tenant understand and
acknowledge that there may be a certain Maintenance
Assessments and Promotion Assessment (the " Assessments")
and certain public improvement fees ("PIF") against the
Premises pursuant to the Deed Restrictions, Master
Declaration or other documents affecting the Premises. Such
Assessments and PIF shall be the sole responsibility of
Tenant during the term of this Lease and shall be paid by
Tenant as and when such Assessments and PIF become due and
payable. The rights and responsibilities pursuant to such
Assessments and PIF shall "pass-through" to Tenant and shall
be binding on and inure to the benefit of Tenant. Landlord
shall cooperate with Tenant to seek enforcement of any
rights or remedies with respect to such Assessments and PIP.
2.9 Intentionally omitted.
ARTICLE 3
USE OF THE PREMISES
3.1 Use of the Premises. Tenant shall use the Premises
solely for the Permitted Uses ,: or any other lawful
purpose; provided, however, that any such use shall be for a
single commercial purpose only, shall be subject to all
matters of record, and shall not diminish the value of the
Premises or violate any applicable zoning codes, the Master
Declaration, the Prohibited Uses (as set forth on attached
Exhibit "a"), or any existing exclusive or restrictive uses
which Seller or its affiliates may grant for the benefit of
another owner or occupant of the development of which the
Premises are a part. This Lease is and shall be subject to
the terms and provisions of the Master Declaration and the
Deed Restrictions (including, without limitation, Seller's
rights to re-enter the Premises pursuant to Paragraph 5 of
the Deed Restrictions).
3.2 Condition of Premises. Subject to the due diligence
periods and contingency periods provided in this Lease,
except as otherwise provided in this Lease including, but
not limited to, Article 15" hereof, Tenant accepts the
Premises "in .its ''as is'.' condition. and acknowledges
thai Landlord makes no warranty with respect to the
Premises.
3.3 Compliance With Law.
3.3.1 Tenant shall, at Tenant's sole expense, comply in
all material respects with all applicable laws, ordinances,
orders, rules, or regulations of any governmental
authorities and with any directive of any public officer
which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises or the use
or occupation thereof or signage thereon, including, without
limitation, any governmental law or statute, rule,
regulation, ordinance, code, policy or rule of common law
now or hereafter in effect relating to the environment,
health or safety .
3.3.2 Tenant shall not use or permit the Premises to be
used in any manner which will result in waste, reasonable
wear and tear and casualty damage (to the extent not
required to be repaired or restored by Tenant pursuant to
this Lease) excepted, or the creation of a nuisance, and
Tenant shall maintain the Premises free of any objectionable
noises, odors, or disturbances.
3.4 Environmental Compliance. Excepting acts or
omissions of Landlord or its agents, for which Tenant shall
have no liabilities, Tenant acknowledges the following:
3.4.1 Tenant shall, at its sole cost and expense at all
times during the Term, comply in all respects with the
Environmental Laws (as defined below) in its use and
operation of the Premises.
3.4.2 Tenant shall not use the Premises for the purpose
of storing Hazardous Materials (as defined below) except
those Hazardous Materials commonly used in the type of
business being conducted by Tenant on the Premises and
provided such use and storage is in full compliance with the
Environmental Laws and other applicable law, and shall not
cause the release of any Hazardous Materials.
3.4.3 Tenant shall notify Landlord promptly and in
reasonable detail in the event that Tenant becomes aware of
or suspects (i) the presence of any Hazardous Materials on
the Premises (other than any Permitted Hazardous Materials,
as defined below), or (ii) a violation of the Environmental
Laws on the Premises.
3.4.4 If Tenant uses or permits the Premises to be used
so as to subject Tenant Landlord or any occupant of the
Premises to a claim of violation of Environmental Laws
(unless contested in good faith by appropriate proceedings),
Tenant shall, at its sole cost and expense, immediately
cease 9r cause cessation of such use or operations and shall
remedy and fully cure any conditions arising therefrom.
3.4.5 At its sole cost and expense, Tenant shall (i)
immediately pay, when due, the cost of compliance with the
Environmental Laws within the Premises required as a result
of any acts or omissions of Tenant, or as otherwise required
by this Lease, and (ii) keep the Premises free of any liens
imposed pursuant to the Environmental Laws. Tenant shall, at
all times, use, handle and dispose of any Permitted
Hazardous Material in a commercially reasonable manner and
in compliance with the Environmental Laws and applicable
industry standards. Tenant shall
cooperate with Landlord in any program between Landlord and
any governmental entity for proper disposal and/or recovery
of any Permitted Hazardous Material.
3.4.6 Tenant shall indemnify, save and hold Landlord
harmless from and against any claim, liability, loss, damage
or expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of any
violation of the covenants of Tenant contained in this
Section by Tenant, or out of any violation of the
Environmental Laws by Tenant, its owners, employees, agents,
contractors, customers, guests and invitees, which indemnity
obligation shall survive the expiration or termination of
this Lease.
3.4.7 In the event that Tenant fails to comply with the
any of the foregoing requirements of this Section, after the
expiration of the cure period permitted under the
Environmental Laws, if any, Landlord may, but shall not be
obligated to (i) elect that such failure constitutes a
default under this Lease; and/or (ii) take any and all
actions, at Tenant's sole cost and expense, that Landlord
deems necessary or desirable to cure any such noncompliance.
Tenant shall reimburse Landlord for any costs incurred by
Landlord in exercising its options under this subsection
within five (5) days after receipt of a ▇▇▇▇ therefor.
3.4.8 Landlord shall indemnify, save and hold Tenant
harmless from and against any claim, liability, loss damage
or expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of or in any
way relating to any violation of the Environmental Laws by
or the existence or presence of Hazardous Materials on the
Premises due to the acts or omissions of Landlord, its
owners, employees, agents, contractors, invitees or
representatives, which indemnity obligation shall survive
the expiration or termination of this Lease.
3.4.9 Landlord acknowledges and covenants that in the
event that through no fault of Tenant, Tenant's use,
occupancy and enjoyment of the Premises ("Occupancy") shall
be materially interfered with by reason of the existence or
remediation of any Hazardous Materials for a period of two
(2) years or more, then Tenant shall have the right to
terminate this Lease by giving written notice tc Landlord of
its election to do so, whereupon this Lease shall
automatically terminate and end effective as of the date of
such notice and neither party shall . have any further
obligations hereunder; PROVIDED, HOWEVER, Landlord may
nullify Tenant's notice of termination if at the time such
notice is given Landlord shall be diligently prosecuting the
rectification of such Hazardous Materials interference and
thereafter completes the rectification in accordance with
all applicable governmental laws, codes, regulations and. .
requirements within one (1) year after the date of Tenant's
termination notice, whereupon this Lease shall continue in
full force and effect in accordance with its terms. During
any time period where Tenant's Occupancy is so interfered,
Landlord and Tenant agree to work together and cooperate
with one another to rectify and remediate any Hazardous
Materials existing on the Premises and to recover any and
all costs and expenses related thereto from the party
responsible for such Hazardous Materials.
3.4.10 The provisions of this Section shall survive
the expiration or termination of the Lease Tenn.
Capitalized terms used in this Section and not
otherwise defined herein shall have the following meanings.
"Hazardous Materials" means any of the following as
defined by the Environmental Laws: solid wastes; medical or
nuclear waste or materials; toxic or hazardous substances;
natural gas, liquefied natural gas or synthetic fuel gas;
petroleum products or derivatives, wastes or contaminants
(including, without limitation, polychlorinated biphenyls);
paint containing lead; urea-fonnaldehyde foam insulation;
asbestos (including, without limitation, fibers and friable
asbestos); explosives; discharges of sewage or effluent; and
any other substance, gas or other material regulated by
federal, state, local or other governmental laws,
ordinances, or restrictions.
"Environmental Laws" means all requirements of
environmental, ecologicial, health, or industrial hygiene
laws or regulations or rules of common law related to the
Property, 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, provided the use and storage thereof is in
full compliance with the Environmental Laws and other
applicable laws.
3.5 Pern1its and Licenses. After Tenant's acceptance of
Landlord's delivery of the Premises, Tenant shall be solely
responsible to apply for and secure any building permit or
permission of any duly constituted authority for the purpose
of doing any of the things which Tenant is required or
permitted to do under the provisions of this Lease
ARTICLE 4
TAXES AND UTILITIES
4.1 Pavment of Taxes. Tenant shall pay 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 bills applicable to the Premises promptly
after receipt of such bills. All such payments shall be made
at least ten (10) days prior to the delinquency date of such
payment. Tenant shall promptly furnish Landlord with
satisfactory evidence that such Taxes have been. i paid. If
any such Taxes paid by Tenant shall cover any period of
time prior to, or after the
expiration of, the Lease Tern1, 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:
4.2.1 any forn1 of real estate tax or assessment,
special taxes and assessments, ad valorem tax or gross
receipts tax imposed by any authority having the direct or
indirect power to tax, including any city, county, state, or
federal government, or any school, agricultural, sanitary,
fire, street, drainage, or other improvement district
thereof, on, against or with respect to the Premises, this
Lease, any legal or equitable interest of Landlord or any
superior landlord in the Premises, or in the real property
of which the Premises are a part, Landlord's right to rent
or. other income therefrom and Landlord's business of
leasing the Premises;
4.2.2 any tax, fee, levy, assessment, penalty, interest
or other charge (i) in substitution of, partially or
totally, any tax, fee, levy, assessment, or charge
hereinabove included within this definition of Taxes, or
(ii) any tax or increase in any tax which is imposed as a
result of a transfer, either partial or total, of Landlord's
interest in the Premises to Tenant, or (iii) any tax or
increase in tax which is imposed by reason of this
transaction, any modifications or changes hereto, or any
transfers hereof; and
4.2.3 all inspection fees, taxes, bonds, permits,
certificates, assessments and sales, use, property or other
taxes, fees or tolls of any nature whatsoever (together with
any related interest 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, and indemnify and hold Landlord
harmless from and against, any .Taxes. Notwithstanding the
foregoing, the term "Taxes" shall not include. any general
income taxes, inheritance taxes, and estate taxes imposed
upon Landlord.
4.3 Tenant's Right to Contest Taxes.
4.3.1 Tenant shall have the right, at its sole cost and
expense, to contest the amount or validity, in whole or in
part, of any Taxes by appropriate proceedings diligently
conducted in good faith, but no such contest shall be
carried on or maintained by Tenant after the time limit for
the payment of any Taxes unless Tenant shall (i) pay the
amount involved under protest; (ii) procure and maintain a
stay of all proceedings to enforce any collection of any
Taxes, .together with. all penalties, interest, costs and
expenses, by a deposit of a sufficient sum of money, or by
such undertaking, as may be required or permitted by law to
accomplish such stay; or (iii) deposit with Landlord, as
security for the performance by Tenant of its obligations
hereunder with respect to such Taxes, 120% of such contested
amount or such other reasonable security as may be
reasonably demanded by Landlord to insure payment of such
contested Taxes and all penalties, interest, costs and
expenses which may accrue during the period of the contest.
Upon the termination of any such proceedings, Tenant shall
pay the amount of such Taxes or part thereof, as finally
determined in such proceedings, together with any costs,
fees (including all reasonable attorneys' fees and
expenses), penalties or other liabilities in connection
therewith; provided, however, that if Tenant has deposited
cash or cash equivalents with Landlord as security under
clause (iii). above, then, so long as no default exists
under this Lease, Landlord shall arrange to pay such Taxes
(or part thereof) together with the applicable costs, fees
and liabilities as described above out of such cash or cash
equivalents and return any unused balance, if any, to
Tenant. Otherwise, Landlord shall return to .Tenant all
amounts, if any, held by or on behalf of Landlord which were
deposited by Tenant in accordance with such clause (iii). In
the event enforcement proceedings are commenced with respect
to any unpaid Taxes during a contest by Tenant, Landlord.
shall have the right to pay all amounts which are subject to
such enforcement proceedings and Tenant shall reimburse
Landlord for such amounts within five (5) days after receipt
of written demand therefor from Landlord. Tenant shall
indemnify and hold harmless Landlord from any increase in
Taxes resulting from Tenant's exercise of its right to
contest Taxes
4.3.2 Tenant shall have the right, at its cost and
expense, to seek a reduction in the valuation of the
Premises as assessed for tax purposes and to prosecute any
action or proceeding in connection therewith. Provided
Tenant is not in default hereunder, Tenant shall be
authorized to retain any tax refund of any tax paid by
Tenant.
4.3.3 Landlord agrees that whenever Landlord's
cooperation is required in any proceeding brought by Tenant
to contest any tax, Landlord will reasonably cooperate
therein, provided same shall not entail any cost, liability
or expense to Landlord. Tenant shall pay, indemnify and save
Landlord harmless of and from, any and all liabilities,
losses, judgments, decrees, costs and expenses (including
all reasonable attorneys' fees and expenses) in connection
with any such contest and shall, promptly after the final
settlement, fully pay. and. discharge the . amounts which
shall be levied, assessed; charged or imposed or be
determined to be payable therein or in connection therewith,
and Tenant shall perform and observe all acts and
obligations, the performance of which shall be ordered or
decreed as a result thereof. No such contest shall subject
Landlord to the risk of any civil liability or the risk of
any criminal liability , and Tenant shall give such
reasonable indemnity or security to Landlord as may
reasonably be demanded by Landlord to insure compliance with
the foregoing provisions of this Section.
4.4 Payment of Utilities. Tenant shall pay to the
utility companies or other parties entitled to payment the
cost of all water, heat, air conditioning, gas, electricity,
telephone, and other utilities and services provided to or
for the Premises, including, without limitation, connection
fees (unless provided for on Exhibit "F") and taxes thereon.
ARTICLE 5
INSURANCE AND INDEMNIFICATION
5.1 Tenant's Insurance. From and after taking
possession of the Premises, Tenant shall carry and maintain,
at its sole cost and expense, the following types and
amounts of Insurance:
Insurance Type Amount of Coverage Risks Covered
Commercial General $1,000,000 per occurrence and personal injury, bodily
Liability $2,000,000 in the aggregate injury property damage and
per location contractual liability
Property Damage full replacement value "all risk",including sprinkler
(including earthquake damage
and flood if required by
Landlord)
Business Interruption not less than 12 installments loss of earnings by at least
Fixed of Monthly Rent the least the perils of fire
and lightning,extended
coverage, vandalism,
malicious mischief and
sprinkler leakage
Worker's compensation as required by law
Boiler and Machinery in an amount reasonably acceptable
to Landlord
5.2. Policy Form
5.2.1 ,.Tenant shall obtain all policies .of insurance
required by Section 5.1 from insurance companies reasonably
acceptable to Landlord which are qualified and admitted to
do business in the jurisdiction where the Premises are
situated. All such policies shall be issued in the name of
Tenant, and, if requested by Landlord, Landlord, and any
mortgagee or beneficiary of Landlord of such other parties
as required under any matter of record, shall also be named
as additional insureds. In addition, all such policies
providing coverage for physical.damage shall include loss
payee and mortgagee endorsement in favor of Landlord and
Landlord's mortgagee or beneficiary, respectively and as
applicable. The Tenant shall cause copies of such policies
..of insurance or originally executed certificates thereof to
be delivered to Landlord prior to . Landlord's execution of
this Lease, and not less than thirty (30) days prior to any
renewal thereof. As often as any such policy shall expire or
terminate, Tenant shall procure and maintain renewal or
additional policies with like terms. None of such policies
shall contain any co- insurance requirements' and all such
policies shall provide for written notice to Landlord and.
any mortgagee or beneficiary of Landlord not less than
thirty (30) days prior to any modification,
cancellation, lapse, or reduction in the amounts of
insurance, and shall further provide that any loss otherwise
payable thereunder shall be payable notwithstanding any act
or negligence of Landlord or Tenant which might, absent such
provision, result in a forfeiture of all or part of the
payment of such loss. All general liability, property
damage, and other casualty policies shall be written on an
occurrence basis as primary policies, not contributing with
or in excess of coverage which Landlord may carry. The
insurance limits set forth in this Article 5 are subject to
such reasonable increases as requested by Landlord.
5.2.2 Tenant's obligations to carry the insurance
provided for above may be brought within the coverage of an
"umbrella" policy or policies of insurance carried and
maintained by Tenant; provided, however, that such policy or
policies shall (i) have limits of not less than $10,000,000,
(ii) name" Landlord and any mortgagee or beneficiary of
Landlord as additional insureds as their interests may
appear, and (iii) provide that the coverage afforded
Landlord will not be reduced or diminished by reason of the
use of such blanket policies. Tenant agrees to permit
Landlord at all reasonable times to inspect any policies of
insurance of Tenant which Tenant has not delivered to
Landlord.
5.3 Subrogation-Waiver. Landlord (for itself and its
insurer) hereby waives any rights, including rights of
subrogation, and Tenant (for itself and its insurer) hereby
waives any rights, including rights of subrogation, each may
have against the other on account of any loss or damage
occasioned to Landlord or Tenant, the case may be, to their
respective properly, the Premises or its contents that are
caused by or result from risks insured against under any,
insurance policies required to be carried by the parties
under this Lease or carried by the parties hereto and in
force at the time of any such damage. The foregoing waivers
of subrogation shall be 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 procure or to pay the same in which
case Tenant shall repay such amount plus any penalties or
additional amounts resulting therefrom to Landlord. within
five (5) days after receipt of a ▇▇▇▇ therefor.
5.5 Insurance Use Restrictions. Tenant shall not carry
any stock or goods or do anything in, on, or about the
Premises which will substantially increase the insurance
rates upon the building of which the Premises are a part.
5.6 Indemnification.
5.6.1 Subject to Subsection 5.6.3 below, Tenant shall
indemnify Landlord for, defend Landlord against, and save
Landlord harmless from any liability, loss, cost, injury,
damage or other expense or risk whatsoever, including
reasonable attorneys' fees, that may occur or be claimed by
or with respect to any person(s) or property on or about the
Premises and resulting directly or indirectly from:
(a) the use, occupancy, possession, operation,
maintenance or management of the Premises by
Tenant or other persons claiming through or under
Tenant, or their respective agents, employees,
licensees, invitees, guests or other such persons;
(b) any work or thing done by Tenant, its employees,
agents or licensees, in respect of construction
of, in or to the Premises or any part of the
improvements now or hereafter constructed on the
Premises (other than work by Landlord);
(c) the condition, including environmental conditions
(unless such conditions were : pre-existing or
caused by a party other than Tenant), of the
Premises or any part thereof;
( d) any negligence on the part of Tenant or any
of its agents, contractors, servants, employees,
licensees or invitees;
( e) any accident, injury or damage to any person
or property occurring in, on or about the Premises
or any part thereof including any sidewalk
adjacent thereto.
5.6.2 [Intentionally Omitted]
5.6.3 Landlord shall indemnify and save Tenant harmless
from and against any and all claims, demands, actions,
damages, liability and expense, including reasonable.
attorneys' fees, in connection with the loss, damage, or
injury to persons or property whether for injuries to
persons or loss of life, or damage to property, arising in
connection with the negligence or intentional misconduct of
the Landlord, Landlord's agents, employees, or contractors.
ARTICLE 6
MAINTENANCE AND REP AIRS
6.1 Tenant's Obligations.
6.1.1 Tenant shall, at its sole cost and expense,
maintain in good repair, order, and serviceable condition
the Premises and every part thereof, including, without
limitation, every part of the interior and exterior portions
of the Building, including its. roof, walls, .all windows,
doors; storefronts, plate glass, interior walls, and
structural elements thereof and all painting thereof; all
plumbing, -ventilation, heating, air conditioning, and
electrical systems and equipment in, on, or exclusively
serving the Premises; and all exterior improvements
including, without limitation, landscaping, light poles;
signage and parking lot .areas which are part of the
Premises. Tenant shall be obligated to make replacements at
the Premises when reasonably necessary and such replacements
shall be, to the extent reasonably practicable, with
materials of a quality comparable to those initially
installed. Subject to Landlord's satisfaction of the
conditions set forth in Section 6.2.1, Tenant shall not make
any claim or demand upon or bring any action' against
Landlord for any loss, cost, injury, damage or expense
caused by any failure or defect, structural or non-
structural, of the Premises or any part thereof.
6.2 Landlord's Obligations. Excepting Landlord's
duties and obligations under Article 15 hereof, Landlord
shall have no obligation to repair and maintain the
Premises, nor any Improvements or equipment thereon, whether
interior or exterior, structural or nonstructural ordinary
or extraordinary. Except as otherwise provided in this
Lease, Tenant expressly waive~ the benefit of any statute or
law now or hereafter in effect which would otherwise afford
Tenant the right to terminate this Lease because of
Landlord's failure to keep the Premises in good order,
condition, and repair, or the right to repair and offset the
cost related thereto against rent.
6.2.1. Landlord shall obtain in the name of Tenant and
Landlord warranties, to the extent available, on all
materials, fixtures, and equipment incorporated in or on the
Premises (the "Warranties"). Further in the event Tenant is
not deemed a third-party beneficiary or a direct assignee of
the contract(s) Landlord enters into with its contractors
("Landlord's Contractor's") in connection with Landlord's
Work, Landlord shall take such action as may be reasonably
necessary to enable Tenant to make any demand upon or claim
upon or bring any action against Landlord's Contractors (i)
for any loss, cost, injury, damage or other expense caused
by any failure or defect, structural or non-structural, of
the Premises or any part thereof or (ii) to enforce the
Warranties.
6.3 Landlord's Rights. If Tenant refuses or neglects to
make repairs or maintain the Premises, or any part thereof,
in a manner reasonably satisfactory to Landlord, without
prejudice to any other remedy Landlord may have hereunder,
upon giving Tenant ten (10) days prior written notice,
Landlord shall have the right to enter the Premises and
perform such maintenance or make such repairs on behalf of
and for the account of Tenant. In the event Landlord so
elects, Tenant shall pay the cost of such repairs,
maintenance, or replacements within five (5) days following
receipt of a ▇▇▇▇ therefor. Tenant agrees to permit Landlord
or its agent to enter the Premises, upon reasonable notice
to Tenant and in the presence of Tenant's store manager
during normal business hours, for the purpose of inspecting
the Premises. Provided Landlord Uses its, best efforts to
notify Tenant, Landlord shall have the right to enter the
Premises in the event of an emergency.
ARTICLE 7
ALTERATIONS
7 .1 Consent to Alterations. Tenant may make any
interior non-structural alterations,
replacements additions chancres and improvements: to 1he
Premises that Tenant, in its sole, discretion, deems
advisable. Subject to the prior written consent of Landlord,
which consent shall not be unreasonably withheld, Tenant may
at its "sole cost and .expense, make any alterations,
replacements, additions, changes, and improvements
(collectively referred to in this Article as "Alterations")
to the Premises, other than interior non-structural
Alterations, as it may find necessary or convenient for its
purposes, together with copies of all architectural plans
and specifications relating to any such Alteration.
Notwithstanding the foregoing Landlord's consent with
respect to any structural Alterations to the Premises,
including the foundations, structural walls, roof, roof
membrane, utilities and/or building systems, may be
conditioned upon
Tenant's removing any such Alterations upon the expiration
or termination of the Lease Term and restoring the Premises
to the condition which existed on the date Tenant took
possession subject to normal wear and tear.
7.2 Removal of Alterations. Except as set forth in
Subsection 7.2.1 below, all Alterations made on the Premises
shall become the property of Landlord at the expiration or
termination of the Lease Term and shall be surrendered with
the Premises.
7.2.1 All signs, furnishings, trade fixtures,
inventory, equipment and other removable property including
but not limited to Tenant's Trade Fixtures, as listed on
Exhibit "F" attached hereto, installed in or on the Premises
by Tenant, shall remain the personal property of Tenant
shall not be subject to any Landlord's lien or lien or
security interest against the property of Landlord, and
shall be removed by Tenant not later than fifteen (15) days
after the termination or expiration of this Lease, provided
that Tenant shall repair any damage caused by removal of its
personal property or vault or which is structural in nature.
If, however, any such personal property of Tenant is not
removed on or before the fifteenth (15th) day following the
termination of this Lease, Landlord shall provide written
notice to Tenant and if such property is not removed within
ten (10) days of receipt of such notice such property,
Landlord may remove and store such property at Tenant's cost
and expense.
7.3 Alterations Required by Law. Subsequent to Tenant's
acceptance of Landlord's delivery of the Premises, Tenant
shall, at its sole cost and expense, make any Alteration
structural or otherwise, to or on the Premises, or any part
thereof, which may be necessary or required by reason of any
law, rule, regulation, or order promulgated by competent
government authority.
7 4 General Conditions Relating to Alterations. Any
Alteration shall be subject to the following conditions:
7.1 No Alteration shall be undertaken until Tenant
shall have procured and paid for all required permits and
authorizations of all municipal departments and governmental
subdivisions having jurisdiction.
7.4.2 [Intentionally Omitted]
7.4.3 Any Alteration shall be made promptly and in a
good workmanlike manner, by properly qualified and licensed
personnel, and in compliance with all applicable permits
and. authorizations and building and zoning laws and all
laws, and in accordance with orders, rules and regulations
of the Board of Fire Insurance Underwriters and any-other
body hereafter exercising similar functions having or
asserting jurisdiction over the Premises.
7.4.4 No A1teration shall tie-in or connect the
Premises or any improvements thereon with any property
outside the Premises without the prior written consent of
Landlord.
7.4.5 No Alteration shall reduce the value of the
Premises or impair the structural integrity of any building
comprising a part of the Premises.
7.4.6 [Intentionally Omitted]
7.5 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 twenty"(20) days after the date of filing of same or
Tenant's receipt of written notice from Landlord or, if
Tenant in good faith determines that such lien should be
contested, Tenant shall either (i) bond over such lien in
accordance with applicable law in an amount sufficient to
remove the subject liens as a matter of record, or (ii)
furnish such security as Landlord shall determine to be
necessary and/or required to prevent any foreclosure
proceedings against all or any portion of the Premises
during the pendency of such contest. If Tenant shall 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 may, 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
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;
provided, however, that any exterior signage shall not
represent more than one trade name: In addition, Tenant
shall have the right to install a sign on the rear of the
Premises. Tenant shall also have the right to install one
sign panel on the shared pylon sign. constructed or to be
constructed Seller, and one sign panel on each face of the
shared ground mounted monument sign to be constructed by
Landlord on or adjacent to the Premises. All such' signs
shall comply with all requirements of (i) appropriate
governmental authorities; and (ii) agreements or
restrictions. of record (or disclosed to Tenant before its
execution of this Lease) running with the Premises: All
necessary permits, licenses or approvals required by
agreements or restrictions identified ill item (ii) of the
previous sentence shall be obtained by Tenant. Tenant shall
maintain its signs in good condition and repair at all
times, and shall save the Landlord harmless from injury to
person or property arising from the erection and maintenance
of said signs. Upon vacating the Premises, Tenant shall
remove all signs and repair all damage caused by such
removal including restoring areas occupied by the Signs to
the extent reasonably practicable to the condition existing
prior to such removal. Landlord covenants and warrants that
it has approved Tenant's signs and the Sign Drawings
attached hereto as Exhibit "D" prior to or simultaneously
with its execution of this Lease.
ARTICLE 8
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD
8.1 Obligation to Rebuild. If any portion of the
Premises is damaged or destroyed by fire or other casualty
Tenant shall forthwith give notice thereof to Landlord.
Tenant shall promptly obtain an estimate from a licensed
architect or contractor of the cost to complete such repair,
restoration, rebuilding or replacement, and Tenant shall, at
its sole cost and expense, promptly repair, restore, rebuild
or replace the damaged or destroyed improvements, fixtures
or equipment, and complete the same as soon as reasonably
possible, to the condition they were in prior to such damage
or destruction, except for such changes in design or
materials as may then be required by law. In such event,
Landlord shall, to the extent and at the times the proceeds
of the insurance are made available to Landlord, and only so
long as Tenant shall not be in default under this Lease,
reimburse Tenant for the costs of making such repairs,
restoration, rebuilding and replacements as they are
completed, but not more often than once each month, upon
receipt of a written request therefor, which request shall
be accompanied by a certification from Tenant's architect
certifying as to completion of the work for which
reimbursement is being requested. To the extent, if any,
that the proceeds of insurance made available by Landlord
are insufficient to pay the entire cost of making such
repairs, restoration, rebuilding and replacements, Tenant
shall pay the remainder. Any surplus of insurance proceeds
over the cost of restoration, net of all reasonable expenses
incurred by Landlord in connection with the administration
thereof, shall be promptly paid over to Landlord. Tenant
hereby waives any statutory right relating to casualties, it
being understood and agreed by the parties that the
provisions of this Article 8 shall govern and control in all
events.
8.1.1 Notwithstanding the foregoing, in the event
Tenant is unable to obtain any necessary governmental
approvals, authorizations or permits, despite Tenant's
diligent pursuit of same, three hundred sixty (360) calendar
days from the date of such fire or casualty (such period not
to include unreasonable delays caused by Tenant), Tenant
shall have the option to terminate this Lease. In the event
Tenant elects to so terminate, Tenant shall pay to Landlord
the difference, if any, between the insurance proceeds
received by Landlord and the unamortized portion of the
Premises Cost.
8.2 Casualty During Last Eighteen (18) months..
Notwithstanding anything to the contrary in this Article 8,
if the Premises is damaged or destroyed by fire or other
casualty during the last eighteen. (18) months of the
Initial Term or the then-running Renewal Term such that
twenty-five percent (25%) or more of the Premises are
rendered unuseable by Tenant, Tenant may elect not to
rebuild and to terminate this Lease; provided that Landlord
shall receive insurance proceeds in the full amount of the
casualty loss and the difference., if any, between the
insurance proceeds received by Landlord and the unamortized
portion of the Premises Cost.
8.3 Intentionally Omitted.
8.4 Insurance Proceeds. Notwithstanding anything to
the. contrary. contained herein, any reference to casualty
insurance and/or insurance proceeds shall mean insurance
payable with respect to the Building on the Premises. Any
insurance with respect to Tenant's Trade Fixtures or other
personal property of Tenant shall be, and remain, the
property of Tenant, notwithstanding anything to the contrary
herein.
ARTICLE 9
EMINENT DOMAIN
9.1 Total Taking. If the entire Premises are taken
under the power of eminent domain by any public or quasi-
public authority, this Lease shall terminate and expire as
of the date of such taking, and upon Tenant's payment to
Landlord of all rents accruing through such date, Landlord
and Tenant shall each thereafter be released from any
further liability accrued under this Lease. In the event
that Tenant shall have paid any rent for any period beyond
the date of such taking, Landlord shall reimburse same, pro
rata.
9.2 Partial Taking. In the event that (i) more than 25%
of the Gross Leasable Area of the Premises, including the
parking area serving the Premises, is taken under the power
of eminent domain by any public or quasi-public authority,
(ii) by reason of any appropriation or taking, regardless of
the amount so taken, the remainder of the Premises is not
one undivided parcel of property, or (iii) as a result of
any taking, regardless of the amount so taken, the remainder
of the Premises is rendered unsuitable for the continued
operation of Tenant's business, either Landlord or Tenant
shall have the right to terminate this Lease as of the date
Tenant is required to vacate a portion of the Premises, by
giving the other notice of such election within thirty (30)
days after receipt by Tenant from Landlord of written notice
that the Premises have been so appropriated or taken.
Landlord agrees immediately after learning of any
appropriation or taking to give to Tenant notice in writing
thereof. In the event of such termination, upon Tenant's
payment to Landlord of all rents accruing through such date,
both Landlord and Tenant shall thereupon be released from
liability thereafter accruing hereunder. If both parties
elect not to terminate this Lease, Tenant shall remain in
that portion of the Premises not .so taken and Tenant, at
Tenant's sole cost and expense, shall restore the remaining
portion of the Premises as soon as possible to a complete
unit of like. quality and character as existed prior to such
taking. Landlord agrees to reimburse Tenant for the cost of
restoration, but in no event shall Landlord's obligation to
reimburse Tenant for the cost of restoring the remaining.
portion of the Premises exceed the amount of award of
compensation that Landlord receives for a partial taking of
that portion of the Premises resulting in the need for
restoration. So long as this Lease is not terminated in the
manner provided above, there sha1l be an equital
adjustment of the rent payable by Tenant hereunder by
reason of such partial taking Tenant hereby waives any
statutory rights of termination which may arise by reason of
any partial taking of the Premises under the power of
eminent domain. .
9.3 Distribution of Award. The entire award or
compensation in such eminent domain proceeding, whether for
a total or partial taking or for diminution in the value of
the leasehold or for the fee, shall. be distributed to
Landlord; provided however, that Tenant may apply for award
of the value of Tenant's Trade Fixtures or other personal
property, loss of , income, relocation costs, improvements
and the value of the leasehold interest created hereby,
according to the law in effect in the jurisdiction where the
Premises are located, so long as such award does not
diminish the value of Landlord's award. In the event that a
separate award is not made to Tenant, Tenant shall be
entitled to share in any award made to Landlord, as long as
Landlord first receives the fair market value of the real
property upon which the Premises are located plus the
unamortized Premises Cost.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 Right of Assignment and Subletting.
10.1.1 Tenant shall have the free right to assign this
Lease or sublet the Premises provided Tenant remains liable
under this Lease and provided that the proposed assignee's
intended use does not violate any protected, exclusive or
restricted uses then in effect~ with respect to the
Premises. Notwithstanding the foregoing, Tenant shall not
mortgage, pledge or hypothocate this Lease or Tenant's
interest in and to the Premises or any part thereof without
the prior written consent of Landlord, which consent shall
not be unreasonably withheld.
10.1.2 Any permitted assignee, subtenant, transferee,
licensee, concessioner, or mortgagee shall be bound by, and
shall assume and perform all of the terms, covenants, and
conditions of this Lease from and after the date of any such
transfer
10.2 No Release of Tenant No assignment shall release
Tenant of Tenant's obligation or alter the primary liability
of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The
acceptance of rent 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
mitigate and take all reasonable efforts to relet the
Premises, proceed directly against Tenant without the
necessity of exhausting remedies against such assignee.
ARTICLE 11
DEFAULT; REMEDIES
11.1 Default. The occurrence of anyone or more of the
following events shall constitute a default by Tenant under
this Lease:
11.1.1 [Intentionally Omitted]
11.1.2 The failure by Tenant to make any payment of
Fixed Monthly Rent, Additional \ Rent or any other payment
required to be made by Tenant hereunder where after written
notice thereof from Landlord to Tenant, such failure shall
continue for a period often (10) days.
11.1.3 Except as otherwise provided in this Lease, the
failure by Tenant to observe or perform any of the non-
monetary covenants, conditions, or provisions of this Lease
to be observed or performed by Tenant, where such failure
shall continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's noncompliance is
such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said 30-day
period and thereafter diligently prosecutes such cure to
completion and, in any event, completes the cure within
ninety (90) days.
11.1.4 Institution by or against Tenant of any
bankruptcy, insolvency, reorganization, receivership or
other similar proceeding involving the creditors of Tenant,
which, if instituted against Tenant, is not dismissed within
sixty (60) days after the commencement thereof.
11.1.5 The issuance or filing of any judgment,
attachment, levy, garnishment or the commencement of any
related proceeding or the commencement of any other judicial
process upon or with respect to all or substantially all of
the assets of Tenant, or the Premises.
11.1.6 [Intentionally Omitted]
11.1.7 Bankruptcy, dissolution, termination of
existence, insolvency, business failure or assignment for
the benefit of creditors of or by Tenant. In the event of
bankruptcy by Tenant, this Lease will be governed in
accordance with the determinations of the Bankruptcy Court.
11.1.8 Any statement, representation or information
made or furnished by or on behalf of Tenant to Landlord in
connection with or to induce Landlord to enter into this
Lease which is proved to be materially false or misleading
when made or furnished.
11.2 Remedies. Upon the occurrence of a default by
Tenant pursuant to the foregoing Subsection or otherwise
under this lease, Landlord may at any time thereafter, with
or without notice or demand and without limiting Landlord in
the exercise of any right or remedy which Landlord may have
by reason of such default:
11.2.1 Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease and
the term hereof shall terminate "and Tenant shall
immediately .surrender possession of the Premises to
Landlord. In such event, Landlord shall be entitled to
recover from Tenant all damages permitted by applicable law.
11.2.2 Maintain Tenant's right to possession of the
Premises by any lawful means, in which case this Lease arid
the term hereof shall continue in effect whether or not
Tenant shall have vacated or abandoned the Premises. In such
event Landlord shall be entitled to enforce .all .of
Landlord's rights and remedies under the Lease, including
the right to recover the rent as it becomes due hereunder.
Notwithstanding the foregoing, the Landlord shall use
reasonable efforts to mitigate its damages to the extent
required by law.
11.2.3 If Tenant, after taking possession of the
Premises, defaults under this Lease, Tenant shall pay
Landlord Fixed Monthly Rent until such time as Landlord
relets the Premises, so long as Landlord makes all
reasonable efforts to mitigate its damage and relet the
Premises. Further, from the date Landlord relets the
Premises until the expiration of the Term, or the then
running renewal term, Tenant shall pay Landlord, as it
becomes due, the difference between the rental amount
obtained by Landlord upon such reletting the Premises (which
rental amount shall be upon commercially reasonable terms)
and the Fixed Monthly Rent. In the event the rental amount
obtained by Landlord upon such reletting is greater than the
Fixed Monthly Rent, such excess amount shall be for the
benefit of Tenant and applied to any future amounts owed by
Tenant.
11.2.4 Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions
of the jurisdiction where the Premises are located.
11.2.5. Recover from Tenant, as an element of its
damages, the cost of reletting the Premises, including, but
not limited to, reasonable brokerage fees, attorneys' fees,
retrofit costs and other expenses of mitigation.
11.3 Cumulative Remedies. Except as specifically
provided herein to the contrary, no remedy or election
hereunder shall be deemed. exclusive but shall, wherever
possible, be cumulative with all other remedies provided in
this Article or otherwise available at law or in equity
ARTICLE 12
REPRESENTATIONS AND WARRANTIES; FINANCIAL REPORTING
12.1 Representations and Warranties. To induce Landlord
to enter into this Lease, Tenant represents and warrants to
Landlord as follows:
12.1.1 This Lease is an enforceable obligation of
Tenant.
12.1.2 Tenant is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as such terms
are defined in the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder).
12.1.3 The financial statements of Tenant delivered to
Landlord. are true and correct in all material. respects,
..have .been prepared. in accordance with. generally accepted
accounting . principles, and fairly present the respective
financial conditions of the subjects thereof as of the
respective dates thereof. No materially adverse change has
occurred in the financial conditions reflected therein since
the respective dates thereof.
1.2.1.4 There are no actions, suits or proceedings
pending, or to the best of Tenant's knowledge, threatened,
against or affecting it or the Premises which, if adversely
determined would materially impair the ability of Tenant to
satisfy their obligations under or .relating to this .
Lease.
12.1.5 Tenant is not in default under any obligation
for the payment of borrowed money, for the deferred purchase
price of property or for the payment of any rent under any
lease agreement, which, either individually or in the
aggregate, would adversely affect the financial condition of
Tenant, or the ability of Tenant to perform its obligations
hereunder, or comply with the terms of this Lease.
12.2 Financial Statements. Tenant has furnished certain
financial statements to Landlord, which statements
completely and accurately present the financial condition of
Tenant on the dates thereof. There has been no material
adverse change in business, property or condition of Tenant
since the date of such financial statements. Tenant is not
insolvent within the meaning of Section 548( a) (2) (B) of
the United States Bankruptcy Code or any other federal or
state law using or defining such term, and will not be
rendered insolvent by the transactions contemplated by this
Lease.
ARTICLE 13
GROSS SALES STATEMENT
Within forty-five (45) days after the end of each
calendar year following the recording of the deed in
accordance with the terms of the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement, Tenant shall deliver to Seller or Seller's
designated representative a written statement in the form
attached hereto as Exhibit "H" certified to be correct by an
authorized officer of Tenant setting forth the amount of
gross sales received from or at the Premises including sales
of licensees or concessionaires operating at the Premises.
ARTICLE 14
TITLE, DUE DILIGENCE AND PERMITTING
14.1 Title Landlord and Tenant shall work together to obtain
and review the Title Commitment prior to the expiration of
the Title Review Period. If after a review of the Title
Commitment there is any Title Matter which is unacceptable
to Tenant ("Title Objections"), . Tenant shall notify
Landlord of any such Title Objections prior to the
expiration of the Title .Review Period and Landlord shall
notify Seller of such Title Objections in the manner and
time period as set forth in the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement. If Seller declines to .cure any such Title:
Objections .or fails to cure any such Title Objections
within the time period set forth in the Colorado ▇▇▇▇▇
Purchase and Sale Agreement, Landlord shall so notify Tenant
and Tenant shall have the right to waive such Title
Objections and proceed to closing, or to terminate this
Lease by providing written notice to Landlord in which event
this Lease shall be null and void and of no further force
and effect, all as set forth. more fully in the Colorado
▇▇▇▇▇ Purchase and Sale Agreement In addition, in the
event a Title Matter .arises which was not shown on the
Title Commitment Tenant shall have the right to determine if
such new Title Matter is a Title
Objection and the procedures set forth in the Colorado ▇▇▇▇▇
Purchase and Sale Agreement shall be followed to resolve the
same. In no event shall Landlord terminate the Colorado
▇▇▇▇▇ Purchase and Sale Agreement as a result of any Title
Objections without the prior written consent of Tenant which
Tenant may withhold in its sole and absolute discretion.
14.2 Due Diligence. Landlord and Tenant shall work
together to make and perform all necessary tests,
inspections, surveys and studies of the Premises, and to
confirm the size, configuration, feasibility and condition
(including all items referenced in Section 2.2 of the
Colorado ▇▇▇▇▇ Purchase and Sale Agreement) of the Premises
(the "Due Diligence") prior to the expiration of the Study
Period and in accordance with the terms of the Colorado
▇▇▇▇▇ Purchase and Sale Agreement. If after a performance of
the Due Diligence, Tenant determines in its sole discretion
that the Premises is not acceptable, Tenant shall have the
right to tern1inate this Lease by providing written notice
to Landlord at least seven (7) days prior to the expiration
of the Study Period in which event this Lease shall be null
and void and of no further force and effect. In no event
shall Landlord tern1inate the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement as a result of any information obtained from
the performance of the Due Diligence without the prior
written consent of Tenant which Tenant may withhold in its
sole and absolute discretion.
14.3 Permitting. Landlord shall use its diligent
efforts to obtain all necessary governmental, quasi-
governmental and other approvals necessary for the
performance of Landlord's Work (collectively, the "Permits")
on or before the expiration of the Permitting Period.
Landlord shall notify Tenant in writing at least five (5)
business days prior to the expiration of the Permitting
Period if Landlord is unable to obtain the Pern1its within
such time period, in which event Landlord shall take all
action necessary under the Colorado ▇▇▇▇▇ Purchase and Sale
Agreement to so extend the Permitting Period (the "Extended
Pern1itting Period") and shall notify Tenant in writing of
the anticipated date when Permits shall be obtained.
Landlord shall notify Tenant at least twenty-one (21) days
prior to the expiration of the Extended Pern1itting Period
if Landlord still is unable to obtain the Pern1its, despite
using diligent efforts. Within seven (7) days after receipt
of such notice, Tenant shall provide written notice to
Landlord of its election to either (i) proceed to closing
under the Colorado ▇▇▇▇▇ Purchase and Sale Agreement; or
(ii) terminate the Lease in which event this Lease will be
null and void and of no further force and effect (the
"Tenant Election Notice"). If Tenant fails to provide the
Tenant Election Notice within. the time period set forth
above, Tenant shall be deemed to have elected to terminate
the Lease. If Landlord is unable to obtain the Permits prior
to expiration of the Extended Permitting Period despite
using diligent efforts and Tenant elects to proceed to
closing as stated in (i) above, Landlord shall provide
written notice to tenant within seven (7) days after receipt
of the Tenant Election Notice of its election to either (i)
proceed to closing under the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement, obtain the Permits and complete Landlord's
Work; or (ii) terminate this Lease provided that Landlord
assigns to Tenant all of its right, title and interest in
and to the Colorado ▇▇▇▇▇ Purchase and Sale Agreement, and
all due diligence materials and other reports and
information obtained by Landlord in connection therewith, at
least seven (7) days prior to the expiration of the Extended
'Permitting Period (the . "Landlord Election Notice"). If
Landlord fails to provide the Landlord Election Notice
within the time period set forth above, Landlord shall be
deemed to. have elected to terminate the Lease and to assign
the necessary documents to Tenant. Within two (2) business
days after receipt of
Landlord's Election Notice (or expiration of the time period
to provide Landlord's Election Notice), Tenant shall have
the right by written notice to Landlord to request Landlord
to not assign the Colorado ▇▇▇▇▇ Purchase and Sale Agreement
and related due diligence materials and to terminate the
Colorado ▇▇▇▇▇ Purchase and Sale Agreement. In the event
Landlord elects option (ii) stated above and Tenant does not
request the termination of the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement within the two day period stated above,
Landlord shall assign the Colorado ▇▇▇▇▇ Purchase and Sale
Agreement and related documents to Tenant as stated above
and Tenant shall reimburse Landlord for all of its actual
out-of-pocket costs paid to third party providers incurred
in connection with the Colorado ▇▇▇▇▇ Purchase and Sale
Agreement (i.e. costs related to survey, title work,
environmental reports and other due diligence items and the
▇▇▇▇▇▇▇ money deposit paid in connection with the Colorado
▇▇▇▇▇ Purchase and Sale Agreement, but excluding any
development fee or related fee) within thirty (30) days
after receipt of a written invoice from Landlord which
invoice shall include all back-up data and documentation in
support of such costs. Except as provided above, in no event
shall Landlord terminate the Colorado ▇▇▇▇▇ Purchase and
Sale Agreement as a result of the inability to obtain the
Permits without the prior written consent of Tenant which
Tenant may withhold in its sole and absolute discretion
ARTICLE 15
CONSTRUCTION .1
15.1 Permits. Once Landlord has secured all necessary
Permits it shall provide Tenant with written notice (the
"Permit Approval Notice").
15.2 Landlord's Work. After having obtained the
Permits, Landlord shall construct the Premises and related
improvements on the Premises Site on a turnkey basis at no
cost to Tenant, in accordance with the Plans and
Specifications attached hereto as 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 also include the construction of the Shared Driveway
and the Cross Access Areas as set forth more fully in the
Deed Restrictions. One-half (1/2) of all costs related to
the initial construction of the Shared Driveway and a
proportionate share of the cost related to that portion of
the Cross Access Areas located on the Premises shall be
included in the Premises Cost for purposes of this Lease
and, as such, included in the determination of Fixed Monthly
Rent. Landlord shall be responsible for obtaining
reimbursement for any other costs for constructing the
Shared Driveway and the Cross Access Areas from the adjacent
landowner as .more specifically provided in the Deed
Restrictions. Landlord shall complete all foundations for
the principal building improvements to be constructed on the
Premises (to "Commence Construction" as defined in the
Colorado ▇▇▇▇▇ " Purchase and Sale Agreement) on "or before
three (3) months after the recording of the Deed.
Restrictions. Landlord's Work shall be substantially
completed, excepting Punchlist Items (as hereinafter
defined), and possession of the completed Premises shall be
delivered to Tenant for the commencement of Tenant's Work
within the Construction Period, delays due to Force ▇▇▇▇▇▇.
events excepted. Tenant shall be deemed to have accepted the
Premises provided Landlord's Work is substantially complete,
excepting punchlist Items which Landlord shall be
obligated to complete as set forth in Section 15.4, and
provided further that Tenant is able to perform Tenant's
Work without unreasonable interference by Landlord.
Conditioned upon Tenant's providing Landlord reasonable
assurance that Tenant's placement ofa satellite dish on the
roof of the Premises will not void applicable roof
warranties, Tenant shall have the right to install on the
roof of the Premises a satellite dish in accordance with
plans and specifications set forth on Exhibit "C". Upon
expiration or earlier termination of this Lease, Tenant
shall remove any satellite dish and related equipment
installed on the roof of the Premises and repair any damage
caused in connection therewith.
15.3 Delivery Date Notice. Landlord shall give Tenant
written notice of the Delivery Date not less than ten (10)
days before the Delivery Date (the "Delivery Date Notice").
Upon receipt of Landlord's Delivery Date Notice, Tenant
shall have access to the Premises for inspection and
performance of Tenant's Work. In no event shall Tenant be
required to accept delivery of the Premises unless and until
all conditions to the occurrence of the Delivery Date have
been satisfied.
15.4 Punchlist Work. Notwithstanding anything to the
contrary in this Lease, within five (5) days after Landlord
has provided Tenant with the Delivery Date Notice, Tenant
and a representative of Landlord, at a mutually agreeable
time, shall inspect the Premises and shall compile a list of
items which have not been completed as required in Exhibit
"C" (the "Punchlist Items"). Tenant shall have the right to
supplement the list of Punchlist Items during the first
forty five (45) days following the Delivery Date. Landlord
shall use reasonable efforts to complete the Punchlist Items
by the Delivery Date or as soon as possible after Landlord's
receipt of a supplemental list of Punchlist Items, as the
case may be. In the event Landlord is unable to complete
such Punchlist Items within thirty (30) days after the
Delivery Date or within thirty (30) days after receipt of a
supplemental list, Tenant shall have the right, but not the
obligation, to complete such Punchlist Items at Landlord's
cost and expense and to either request reimbursement from
Landlord or to offset the cost thereof against rent. Upon
Landlord's completion of all Punchlist Items, Landlord shall
have no further obligation with respect to the constructicn
of the Premises.
15.5 Pre-Completion Acceptance. If the Delivery Date
has not occurred within the Construction Period, Tenant
shall have the right, but shall not be obligated, to accept
delivery of the Premises, without relieving Landlord of any
obligation to fully complete Landlord's Work. If Tenant
accepts delivery of the Premises prior to the completion of
Landlord's Work, Landlord shall complete Landlord's Work,
including completing any P1;lnchlis.tJteins, as soon as
possible, and in so doing shall not .unreasonably interfere,
and shall cause its contractors not to unreasonably
interfere, wiith the fixturing, furnishing, equipping and
stocking of the Premises by Tenant and its contractors.
Notwithstanding the foregoing, once (i) Tenant has taken
possession of the Premises and Landlord has completed
Landlord's Work, (ii) all Punchlist Items have been
completed, and (iii) all warranties have been assigned to
Tenant, Landlord shall have no further construction
obligations hereunder .
.15.6 Failure to Deliver. Notwithstanding any provision
of this Lease to the contrary, if the Delivery Date has not
occurred within thirty (30) days after the Construction
Period (delays
due to the occurrence of Force Majeure events excepted) (the
"Cancellation Date"), Tenant shall have the right, in
addition to and not in lieu of any and all other rights and
remedies available at law or equity, to cancel this Lease by
giving written notice to Landlord at any time thereafter but
before the Delivery Date (the "Notice of Cancellation").
Tenant must provide its Notice of Cancellation to Landlord
within thirty (30) days after the Cancellation Date. If
Tenant fails to provide a Notice of Cancellation within such
thirty (30) day period, Tenant shall be deemed to have
waived its right to cancel pursuant to this section 15.6. If
Tenant provides timely Notice of Cancellation, Tenant shall
be relieved of all obligations hereunder and Tenant shall
not be liable to Landlord in damages or otherwise.
15. 7 Liquidated Damages. In the event Landlord does
not deliver the Premises to Tenant in the condition as
herein required by the end of the Construction Period,
Landlord shall pay to Tenant the sum of Two Hundred Dollars
($200.00), for each day between the last day of the
Construction Period and the Delivery Date, or, if Tenant
exercises its right to cancel for Landlord's failure to
deliver, for each day between the last day of the
Construction Period and Tenant's Notice of~ Cancellation
(delays due to the occurrence of Force Majeure events
excepted). If Landlord fails to pay Tenant as aforesaid,
then Tenant shall have the right (without limiting any other
right or remedy of Tenant) to deduct such amount from rent
and other payments due Landlord. The liability of Landlord
under this paragraph shall be in addition to all other
claims which Tenant may have against Landlord. Landlord
agrees that the amount provided 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 .
ARTICLE 16
GENERAL PROVISIONS
16.1 Quiet Enjoyment. Subject to the terms and
conditions of this Lease, Tenant shall have the quiet and
peaceful possession of the Premises.
16.2 Definition of Rent. All monetary obligations of
Tenant to Landlord under the terms of this Lease, including,
without limitation, the Taxes, insurance. premiums and.
other . Additional Rent payable hereunder, shall be deemed
to be "rent".
16.3 Subordination. This Lease shall be subor4inate to
the lien of .any superior lease, mortgage, deed of trust, or
any other hypothecation or security now existing or
hereafter placed upon the Premises, and to any and all
advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, and extensions
..thereof, and Tenant hereby agrees, upon equest by Landlord,
to execute and deliver to Landlord and its lender(s) a
subordination, non-disturbance and attornment agreement in a
form reasonably acceptable to Tenant prescribed by such
lender(s) with respect to any such superior lease, mortgage,
deed of trust, hypothecation, or security; provided,
however, that no such instrument shall materially limit
Tenant's rights or materially expand Tenant's obligations
under this Lease. Such agreement shall be executed by Tenant
within thirty (30) days after receipt of written request
from Landlord. Landlord agrees to obtain a non-disturbance
and attornment agreement from the holder of any mortgage
given with respect to the Premises existing at the time of
the execution of this Lease or the recording of a Memorandum
Lease or at such other times as may be reasonably requested
by Tenant.
16.3.1 It is a condition, however, of the subordination
provisions of Section 16.3 above that Landlord shall procure
from any such mortgagee an agreement in writing, which shall
be delivered to Tenant, providing in substance that (i) so
long as Tenant shall faithfully discharge the obligations on
its part to be kept and perfo"m1ed 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 ▇▇▇▇.▇▇▇▇▇ as
set forth in Sections 8 and 9. The word "mortgage" as. used
herein means (i) any lease of land only or of land and
buildings in a sale-lease-back transaction involving all or
any part of the Premises, or (ii) any mortgage, deed of
trust or other similar security instruments constituting a
lien upon all or any part of the Premises, whether the same
shall be in existence as of the date hereof or created
hereafter, and any modifications, extensions, renewals and
replacements thereof. "Mortgagee" as used herein means a
party having the benefit of a Mortgage, whether as lessor,
mortgagee, trustee or note- holder.
16.3.2 No change in ownership of all or any portion of
the Premises, or assignment of, this Lease, or the rentals
provided for herein, shall be binding upon Tenant for any
purpose until after Tenant has been furnished with written
notice from Landlord notifying Tenant of a change in
ownership or assignment.
16.3.3 In the event Tenant receives a written notice
from any party claiming a collateral interest in this Lease
or in the rentals hereunder and, by reason thereof, a
present entitlement to collect the rentals under this Lease,
Tenant shall have the right either (i) to pay such rentals
to such party which payment shall satisfy any and all
liabilities of Tenant to Landlord with respect to such
payment without obligation on the part of Tenant to make
further inquiry but subject to such party's providing to
Tenant a copy of the instrument pursuant to which such party
claims such entitlement and to such claim being plausible on
the face .of such instrument; or (ii) to withhold such
rentals pending the determination by a court of competent
jurisdiction of the entitlement thereto
16.4 Surrender of Premises. Except. for changes
resulting from. eminent domain proceedings, at the
expiration or sooner termination of the Lease Term, Tenant
shall surrender the Premises in the same condition as the
Premises were -in upon delivery of possession thereto under
this Lease, reasonable wear and tear an~ damage due to
casualty (to. the extent not required to be repaired or
restored by Tenant under this Lease) excepted, and shall
surrender all keys for the Premises to Landlord at the place
then fixed for the payment of rent and shall inform Landlord
of all combinations on locks, safes and vaults, if any, in
the Premises. Tenant shall at such time remove all of
Tenant's Trade Fixtures including, but not limited to,
equipment, signs., furnishings, inventory, machinery, and
other personal property, as well as any alterations or
improvements, and shall repair any damage to the Premises
caused thereby. Any or all of such property not so removed
shall, at Landlord's option, become the exclusive property
of Landlord or be disposed of by Landlord, at Tenant's sole
cost and expense, if not removed by Tenant after receipt of
written notice from Landlord pursuant to Section 7.2.1. In
the event Tenant shall fail to pay the cost of any such
repair, Landlord may do so and Tenant shall reimburse
Landlord for the amount thereof within five (5) days after
receipt of a ▇▇▇▇ therefore. If Tenant shall so surrender
the Premises, Tenant shall indemnify Landlord against loss
or liability resulting from the delay by Tenant in so
surrendering the Premises including, without limitation,
any claims made by any succeeding occupant founded on such
delay. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination
of the Lease Term.
16.5 Estoppel Certificates. Each party (each a
"Responding Party:") shall at any time upon not less than
ten (10) days prior written notice from the other party
(each a "Requesting Party") execute, acknowledge, and
deliver to the Requesting Party a statement in a form
prescribed by Landlord and reasonably acceptable to Tenant
certifying and acknowledging the following: (i) that this
Lease represents the entire agreement between Landlord and
Tenant, and is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force
and effect) and the date to which the Fixed Monthly Rent and
other charges are paid in advance, if any; (ii) that there
are not, to the Responding Party's knowledge, any uncured
defaults on the part of the Requesting Party, or specifying
such defaults if any are claimed; and (iii) any other
information reasonably requested by the Requesting Party.
Any such statement may be conclusively relied upon by 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 of oral.
16.8 Notices. Any notice required or permitted to be
given hereunder shall be in writing and may be given by
facsimile (provided a copy is immediately sent by one of the
other methods of providing notice, personal delivery;
certified mail, return receipt requested, or by. nationally
recognized overnight courier service delivered to Tenant or
to Landlord, as the case .may be, at the FAX numbers or
addresses for each set forth in the Fundamental. Lease
Provisions. Either party may by notice to the other specify
a different FAX 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 fault 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. In addition, any
termination agreement or quitclaim deed shall be similarly
recorded, which agreement shall survive the termination of
this Lease. The cost of recording shall be borne by the
party requesting such recording.
16.10.1 At the time that the Commencement Date of the
term of this Lease is firm1ly established, the parties shall
promptly enter into a Supplemental Lease Agreement, setting
forth the actual commencement and expiration of the Initial
Term and any extensions thereof and describing the Premises,
but containing no further provisions of this Lease, which
Supplemental Lease Agreement may be recorded by either
party. If the Commencement Date is 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 therefore going, in the event that
Landlord and Tenant are engaged in good faith negotiations
for a new lease at the expiration or termination .of the
Lease Term, Tenant's continuing possession shall not
constitute holding over for so long as such negotiations
continue. However, Landlord shall in its sole discretion
have the right to notify Tenant in writing, that Landlord
elects to terminate such negotiations whereupon thirty (30)
days after Teriant's -receipt' of such notice the monthly
Tent due thereafter shall be equal to 150% of the Fixed
Monthly Rent then in effect:
16.12 Choice of Law. The laws of the jurisdiction in
which the Premises are located shall govern the validity,
performance, and enforcement of this Lease
16.13 Attorneys' Fees. Should either party institute
any action or proceeding to enforce any provision hereof or
for a declaration of such party's rights or obligations
hereunder, the prevailing party shall be entitled to receive
from the losing party such amounts as the court may adjudge
to be .reasonable attorneys fees and expenses for services
rendered to the party prevailing in any such action or
proceeding, and such fees shall be deed to have accrued upon
the announcement of such action or proceeding and shall be
enforceable whether or not such action or proceeding is
prosecuted to judgment.
16.14 Waiver of Jury Trial. LANDLORD AND TENANT EACH
HEREBY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY CLAIM,
ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER LANDLORD OR
TENANT AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN
ANY W AY CONNECTED WITH THIS LEASE THE RELATIONSHIP OF
LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUP ANCY OF
THE PREMISES.
16.15 Liability of Landlord. In the event of any sale
or other transfer of Landlord's interest in the Premises,
Landlord shall be relieved of all liabilities and
obligations of Landlord hereunder arising after the date of
such transfer. Notwithstanding anything contained herein to
the contrary, neither Landlord nor its officers, directors,
members, agents, representatives, employees or affiliates,
shall have no personal liability in respect of any of the
terms, covenants, conditions or provisions of this Lease. In
the event of a breach or d~fau1t by Landlord of any of its
obligations under this Lease, Tenant, and any persons
clain1ing by, through or under Tenant shall look solely to
the equity of the Landlord in the Premises for the
satisfaction of Tenant's and/or such persons' remedies and
claims for damages.
16.16 No Merger. There shall be no merger of this
Lease, or the leasehold estate created by this Lease, with
any other estate or interest in the Premises, or any part
thereof, by reason of the fact that the same person, 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 firms and other entities having an interest
(including a security interest) in (1) this Lease or the
leasehold estate Created by this Lease; and (2) any such
other estate or interest in the Premises, or any part
thereof, shall join in a written instrument effecting such
merger and shall duly record the same.
16.17 Interpretation. The captions by which the.
Articles and Sections of this Lease are identified are for
convenience only and shall have no effect upon the
interpretation of this Lease Whenever the context so
requires, singular numbers shall include the plural, the
plural shall refer to the singular, the neuter gender shall
include the masculine and feminine genders, and the terms
"Landlord" and "Tenant" and "person" shall include
corporations, limited liability companies, partnerships,
associations, other legal entities, and individuals.
16.18 Relationship of the Parties. Nothing in this
Lease shall create a partnership, joint venture, employment
relationship, borrower and lender relationship, or any other
relationship between Landlord and Tenant, other than the
relationship of landlord and tenant.
16.19 Successors. This Lease shall be binding upon and
inure to the benefit of the parties hereto and their
respective personal and legal representatives, heirs,
successors, and assigns.
16.20 Modifications. This Lease may not be altered,
amended, changed, waived, terminated, or modified in any
manner except by a written instrument executed by Landlord
and Tenant.
16.21 Brokerage Fees. Landlord and Tenant each
represent and warrant that they have not employed a broker
in connection with the execution of this Lease. Landlord and
Tenant shall each indemnify and hold the other harmless from
and against any claim or claims for brokerage or other
commissions arising from such party having employed a broker
contrary to its representation in this Section.
16.22 Waiver of Redemption. To the extent permitted by
law, Tenant hereby waives any and all rights of redemption
with respect to this Lease. Tenant hereby waives any rights
it may have to any notice to cure or vacate or to quit
provided by any current or future law; provided that the
foregoing shall not be deemed to waive any notice expressly
provided in this Lease.
16.23 Not Binding Until Executed. This Lease does not
constitute an "offer" and is not binding until fully
executed and delivered by Landlord
16.24. Reasonable Consent. Wherever Landlord's consent
or approval shall be required ) herein, such consent or
approval shall not be unreasonably or arbitrarily withheld
or delayed unless otherwise set forth to the contrary in
this Lease.
16.25 No Continuous Operation. Notwithstanding anything
contained in this Lease, expressly or impliedly, to the
contrary, and notwithstanding the agreement herein contained
for the payment by Tenant of rent it is specifically and
expressly understood and agreed that Tenant shall be under
no duty or obligation, either express or implied, to open,
or thereafter to continuously conduct, its business in the
Premises at any time during the Term. Further, Tenant's
failure to open for business in the Premises shall not
otherwise entitle Landlord to commence or to maintain any
action, suit, or proceeding, whether in law or in equity,
relating in any way to Tenant's failure to open or
thereafter to continuously conduct its business in the
Premises without limiting the generality of the foregoing,
Tenant shall have the right to close to partial days per
year to take inventory and shall, at Tenant's option, be
closed Thanksgiving Day, Christmas Day, New Years Day, and
Easter.
16.26 Matters of Record. This Lease is expressly
subject to all matters of record and Tenant hereby agrees to
comply with the terms of all agreements and other matters of
record. The rights of Tenant set forth herein are subject to
the rights of other parties under agreements of record, and
the exercise of such rights by such parties shall not
constitute a breach under this Lease.
16.27 Financial Assurance Provision. Notwithstanding
anything to the contrary contained in this Lease, if at any
time during the initial seven (7) years of the Term
(measured from the Commencement Date) (the "Financial
Assurance Period"), the "tangible net worth"
(as hereinafter defined) of Tenant (as of the time any
quarterly or annual financial statement and/or calculation
of tangible net worth is due, as provided below) falls below
the amount equal to fifty percent (50%) of Tenant's tangible
net worth as of January 29, 2000 of Two Hundred Fifty-Five
Million Three Hundred Sixty-Four Thousand Dollars
($255,364,000.00) (a "Financial Assurance Failure Event"),
Tenant shall immediately notify Landlord and, within ten
(10) days following such notice from Tenant (or, in the
event Landlord becomes aware of a Financial Assurance
Failure Event prior to such notice from Tenant, then within
ten (10) days following written notice from Landlord) remit
to Landlord a sum (in cash or other immediately available
funds) equal to the aggregate Fixed Monthly Rent payments
scheduled to be paid during the final twelve (12) months of
the Initial Term of this Lease (the " Financial Assurance
Amount"). The Financial Assurance Amount shall be promptly
deposited by Landlord in interest bearing account
selected by Landlord, in Landlord's sole discretion.
Notwithstanding anything to the contrary contained herein,
any interest which accrues on the Financial Assurance Amount
shall be added to and included as part of the Financial
Assurance Amount for all purposes under this Section.
In connection with the foregoing, on or before the date
which is forty-five (45) days following the expiration of
each fiscal quarter (other than the last fiscal quarter) of
Tenant (it being understood and agreed that Tenant's fiscal
year .shall end on the Saturday closest to January 31 in
each year) during or relating to the Financial Assurance
Period (ie, the dates) which are three (3), six (6) and nine
(9) months, respectively, following the expiration of the
previous fiscal year of Tenant), Tenant shall furnish or
cause to be furnished to Landlord current financial
statements and a calculation of Tenant's then current
tangible net worth, all prepared in accordance with
generally accepted accounting principles (GAAP) and
certified by the Chief Financial Officer of Tenant. In
addition, on or before the date which is ninety (90) days
following the expiration of each fiscal year of Tenant
during or relating to the Financial .Assurance Period,
Tenant shall (i) furnish or cause to be furnished to
Landlord audited, current financial statements prepared in
accordance with generally accepted accounting principles
(GAAP) and certified by a reputable accounting firm
reasonably acceptable to Landlord, and (ii) a calculation of
Tenant's then current tangible net worth (certified 'by
Tenant's .Chief Financial Officer), prepared in accordance
with generally accepted accounting principles (GAAP).
..Tenant's failure' to timely provide any financial statement
required , pursuant to this Section. shall, without further
notice, constitute a default under this Lease.
Notwithstanding anything to the contrary herein, all
financial statements provided to Landlord pursuant to the
provisions of this Paragraph shall be. subject to the.
agreements regarding confidentiality set forth in that
certain letter agreement dated July 12, .2000 and executed
by Landlord representative. (▇▇▇▇ ▇▇▇▇▇▇▇▇) on July 13,
2000; provided, however, and . notwithstanding the foregoing
or any other contrary provision Landlord may disclose such
financial statements to its accountants, attorneys and other
representatives and/or agents in connection with, the
administration of this Lease (which parties shall also
maintain such financial statements as confidential) and/or
in connection with any litigation or other dispute
concerning this Lease (provided Landlord shall not oppose or
contest a motion by Tenant to .have such documents
maintained under seal of the decisionmaking authority)
The Financial Assurance Amount shall be held by
Landlord, subject to the following provisions of this
Section, as security for the faithful performance by Tenant
of all of the terms, covenants and conditions of this Lease
to be kept and performed by Tenant during the remainder of
the Lease Term. If Tenant defaults (beyond applicable notice
and cure periods) with respect to any provision of this
Lease, including but not limited to the provisions relating
to the payment of Fixed Monthly Rent, Additional Rent and
other charges payable to Landlord under this Lease, Landlord
may (but shall not be required to) use, apply or retain all
or any part of the Financial Assurance Amount for the
payment of any such sum in default or for the payment of any
amount which Landlord may spend or become obligated to spend
by reason of Tenant's default, or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason
of Tenant's default. Notwithstanding anything to the
contrary contained in this Lease, Landlord's receipt, use or
application of the Financial Assurance Amount shall in no
way limit any other right or remedy available to Landlord
under this Lease or applicable law or equity .
Provided Tenant is not then in default under this Lease
beyond applicable notice and cure periods, and Tenant has
not previously been in default under this Lease beyond
applicable notice and cure periods at any time during the
period in which Landlord was in receipt of the Financial
Assurance Amount (or any portion thereof), then on the first
anniversary of the expiration of the Financial Assurance
Period (the "Disgorgement Commencement Date") and / on each
anniversary of such date thereafter, Landlord shall disgorge
to Tenant an amount equal to one-seventh (1/7) of the amount
of the Financial Assurance Amount as of the Disgorgement
Commencement Date until the Financial Assurance Amount is
completely disgorged to Tenant; provided, however, and
notwithstanding the foregoing, the seventh (7111) such
payment by Landlord to Tenant shall include any remaining
portion of the Financial Assurance Amount. In the event
Landlord is not required to disgorge the Financial Assurance
Amount (or any remaining portion thereof) then, provided
such amount is not otherwise used or applied by Landlord in
accordance with the other provisions of this Section,
Landlord shall return to Tenant (or, at Landlord's option,
the last assignee of Tenant's interest hereunder) the
remaining balance of the Financial Assurance Amount within
thirty (30) days following the expiration of the Term of
this Lease.
For purposes of this Section, "tangible net worth"
shall mean shareholders equity in Tenant, minus the value of
intangible assets, as defined under generally accepted
accounting principles (GAAP) (as such definition exists as
of November 30, 2000), such as, but not limited to,
goodwill, patents and trademarks
16.28 Seller's Recapture Rights.
Landlord and Tenant understand that Seller has certain
rights of recapture with respect to the Premises in
accordance with Section 7 of the. Deed Restrictions (herein
a Recapture Right). In the event Seller elects to exercise a
Recapture Right for the Premises as a result of a violation
of Section 7(A) or 7(B) of the Deed Restrictions, then i)
Tenant shall have no
further liability or obligation under this Lease or the
Repurchase Agreement, and ii Landlord, as its sole and
exclusive remedy, shall be entitled to any amounts to be
paid by Seller pursuant to the recapture right.
In the event Seller exercises its Recapture Right for
the Premises as a result of a violation of Section 7(C),
7(D) or 7(E) under the Deed Restrictions, Landlord, as its
sole and exclusive remedy shall be entitled to receive the
entire amount to be paid by Seller under the Deed
Restrictions for recapture of the Premises; in addition,
Tenant shall reimburse Landlord the difference, if any,
between a) the amount required to be paid by Seller under
the Deed Restrictions, and b) the sum of i) the purchase
price paid by Landlord for the Premises, plus ii) the
unamortized portion of the Development Costs (as defined in
the Deed Restrictions) for the Premises as of the date of
the recapture, based upon the straight-line method of
depreciation over a twenty year period. Upon such payment,
this Lease shall terminate and be of no further force and
effect. In the event of a recapture of the Premises by
Seller, Landlord and Tenant shall cooperate to maximize the
value received from Seller.
[Rest of Page Intentionally Left Blank with Signatures
Contained on Following Page]
IN WITNESS WHEREOF, the parties have executed this Lease as
of the 6th day of August 2002
WITNESS LANDLORD:
/s/▇▇▇▇▇ ▇▇▇▇▇▇ TRANSLAKEWOOD, L.L.C.,
Print Name ▇▇▇▇▇ ▇▇▇▇▇▇ a Nevada limited liability company
By: TransLakewood Management
Corporation,
a Nevada corporation
Its: Managing Member
By/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Jr
Its President
TENANT:
STERLING JEWELERS INC.
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Print Name ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ Its Executive Vice President
STATE OF NEVADA
COUNTY OF ▇▇▇▇▇
BEFORE ME a Notary Public, in and for said County and State,
personally appeared ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ the President of
TransLakewood Management Corporation a Nevada corporation
who acknowledged that he did sign the foregoing instrument
and that the same is his free act and deed, and the fee act
and deed of said limited liability company.
IN TESTIMONY WHEREOF I have hereunto set my hand and
official seal this 6th day of August 2002.
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Notary Public
[notary stamp]
STATE OF OHIO
COUNTY OF SUMMIT
BEFORE ME a Notary Public, in and for said County and State,
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ the Executive Vice
President of Sterling Jewlers Inc who acknowledged that he
did sign the foregoing instrument and that the same is his
free act and deed, and the fee act and deed of said
corporation.
IN TESTIMONY WHEREOF I have hereunto set my hand and
official seal this 18th day of July 2002.
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Notary Public
[notary stamp]