ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this
"Assignment") is made and entered into as of the 31st day of May,
2006, by and between BLUE ▇▇▇▇ PARTNERS, LLC, an Ohio limited
liability company, ("Assignor") and AEI INCOME & GROWTH FUND 24
LLC, a Delaware limited liability company, as to an undivided
forty-five percent (45%) interest as a tenant in common, and AEI
INCOME & GROWTH FUND 26 LLC, a Delaware limited liability
company, as to an undivided fifty-five percent (55%) interest as
a tenant in common, both having a mailing address at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(together, collectively referred to as "Assignee").
RECITALS:
A. Assignor and Assignee (successor-in-interest to AEI
Fund Management, Inc.) are parties to that certain Purchase and
Sale Agreement dated March 9, 2006, as it may have been amended
(the "Agreement"), pursuant to which Assignee is acquiring from
Assignor the real property and improvements, located at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇, as more particularly
described on EXHIBIT A attached hereto and incorporated herein by
this reference (the "Property").
B. Pursuant to the terms of the Agreement, Assignor desires
to sell, assign, convey, transfer and set over to Assignee and
Assignee desires to assume all of Assignor's interest in that
certain Lease Agreement dated July 22, 2004 (the "Lease"), by and
between Assignor and Advance Stores Company, Incorporated, a
Virginia corporation (the "Tenant"), including all rents prepaid
for any period subsequent to the date of this Assignment, subject
to the terms and conditions set forth below.
C. Assignor is the Landlord under the Lease with full right
and title to assign the Lease and the Rent to Assignee as provided
herein. The Lease is valid, in full force and effect and has not
been modified or amended. So far as is known to Assignor, there
is no default by Tenant under the Lease and no Rent has been
waived, anticipated, discounted, compromised or released.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties, Assignor and Assignee hereby agree as follows:
1 Assignor hereby irrevocably and unconditionally sells,
assigns, conveys, transfers and sets over unto Assignee, its
heirs, successors and assigns as of the date hereof (the
"Effective Date"), all of Assignor's right, title and interest
in, to and under: (i) the Lease, together with any and all
guaranties thereof, if any, and (ii) any and all rents prepaid as
of the Effective Date, held by Assignor in connection with the
Lease (the "Rent").
2. Assignee hereby assumes and shall be liable for any and
all liabilities, claims, obligations, losses and expenses,
including reasonable attorneys' fees arising in connection with
the Lease which are actually incurred, and which arise by virtue
of acts or omissions occurring thereunder, on or after the
Effective Date. Assignor shall indemnify and hold Assignee
harmless from any and all liabilities, claims, obligations,
losses and expenses, including reasonable attorneys' fees arising
in connection with the Lease or as a result of Assignor's failure
to fulfill the landlord's duties and obligations accruing under
the Lease prior to the Effective Date. Assignee shall indemnify
and hold Assignor harmless from any and all liabilities, claims,
obligations, loss and expenses, including reasonable attorneys'
fees, arising in connection with the Lease or as a result of
Assignee's failure to fulfill the landlord's duties and
obligations accruing under the Lease on or after the Effective
Date. Assignee shall be entitled to receive all income arising
from the Lease from and after said Effective Date. Assignor shall
be entitled to receive all income accruing from the Lease prior
to the Effective Date.
3. Assignor shall direct the tenant and any successor
tenant under the Lease to pay to Assignee the Rent and all other
monetary obligations due or to become due under the Lease for the
period beginning on the Effective Date.
4. This Assignment shall be governed by and construed in
accordance with the laws of the state in which the Property is
located.
5. All rights and obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit of
Assignor, Assignee and the heirs, successors and assigns of each
such party.
6. This Assignment may be executed in any number of
counterparts, each of which shall be effective only upon delivery
and thereafter shall be deemed an original, and all of which
shall be taken to be one and the same instrument, for the same
effect as if all parties hereto had signed the same signature
page. Any signature page of this Assignment may be detached from
any counterpart of this Assignment without impairing the legal
effect of any signatures thereon and may be attached to another
counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
7. Whenever the context so requires in this Assignment,
all words used in the singular shall be construed to have been
used in the plural (and vice versa), each gender shall be
construed to include any other genders, and the word "person"
shall be construed to include a natural person, a corporation, a
firm, a partnership, a joint venture, a trust, an estate or any
other entity.
[Signatures are on the following page]
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Lease as of the day and year first
above written.
ASSIGNOR:
BLUE ▇▇▇▇ PARTNERS, LLC
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
Its: Authorized Member
Date: 5-31-06
STATE OF OHIO )
) ss.
COUNTY OF ▇▇▇▇▇▇▇▇ )
On this 30th day of May, 2006, before me, the undersigned, a
Notary Public in and for said State, personally appeared ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, personally known to me to be the person who executed
the within instrument as the Authorized Member of Blue ▇▇▇▇
Partners, LLC, an Ohio limited liability company , on behalf of
said Company.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Notary Public
[Notary Seal]
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
ASSIGNEE:
AEI INCOME & GROWTH FUND 24 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
On this ____ day of ________, 2006, before me, the undersigned, a
Notary Public in and for said State, personally ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, personally known to me to be the person who executed the
within instrument as the President of AEI Fund Management XXI,
Inc., a Minnesota corporation, the managing member of AEI Income
& Growth Fund 24 LLC, a Delaware limited liability company, on
behalf of said company.
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
Notary Public
[Notary Seal]
AEI INCOME & GROWTH FUND 26 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
On this ____ day of ________, 2006, before me, the undersigned, a
Notary Public in and for said State, personally ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, personally known to me to be the person who executed the
within instrument as the President of AEI Fund Management XXI,
Inc., a Minnesota corporation, the managing member of AEI Income
& Growth Fund 26 LLC, a Delaware limited liability company, on
behalf of said company.
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
Notary Public
[Notary Seal]
EXHIBIT "A"
Legal Description
DESCRIPTION FOR,: Core Resourees,Inc
LOCATION: University
Boulevard, City of
Middletown Lot 20
1.58
0.8801 Acres
Situate in ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇ of
Middletown, Third ▇▇▇▇, ▇▇▇▇▇▇ County, Ohio, and
being all of Consolidated Lot No. 2,0158, consisting
of part of Lot 692 and all of Lots 693, 694, 695,
696, 697 and 698 of the Plat of the City of
Middletown, and being more particularly described as
follows:
Beginning in 5/8" iron pin existing in the northwest
corner of said Lot 20158, said iron pin being in the
intersection of the south right of way line of
Manchester Avenue and the east right of way line of
University Boulevard; thence
in said south right of way line of .Manchester
Avenue, South 76 14'46" East, 202.44 feet to a
5/8" iron pin set in the northeast corner of said
Lot 20158, said iron pin also being in the
northwest corner of Lot 20159; thence
in said west ▇▇▇▇ ▇▇ said Lot 20139 and in the cast
line of said ▇▇▇ ▇▇▇.▇▇, ▇▇▇▇▇ ▇▇ ▇▇'▇▇" ▇▇▇▇, 180.18
feet to a fling nail set in the southeast corner of
Lot 20138, said rung nail also being in the north
right of way line of a 16' wide alley; thence
in said north right of way line of a 16 wide alley,
North 76"00'09" West, 178.03 feet to a 5/8" iron
pill existing in i ▇▇▇▇▇ of a right of way take as
shown in the City of Middletown, Ohio, University
Boulevard, Grand Avenue to Miami Avenue, No. A-21-3
Right of Way Plans; thence
in the right of way lines of said Right of Way Plans, the
following five courses:
1. North 1359'51" East, 1.74-feet to a 5/8" iron pin existing.,
thence
2. North 76 00'09" West, 19:53 feet to a cross notch existing;
thence
3. along an arc deflecting to the right, having a radius of
40.00 feet, an arc distance of
26.53 feet, said arc bears North 41'08'13" West, 26.05
feet to a cross notch existing,
thence
4. along an arc deflecting to the left, having a radius of
64:00 feet, an .arc distance of 22.33 feet, said arc bears
North 18 43'24" East, 22.22 feet to a cross notch existing;
thence
5. along an arc deflecting to the right, having a radius of
292.00 feet, an arc distance of 84.37 feet, said arc bears
North 17'00'18" East, 84.0'7 feet to a cross notch existing;
thence
6. North 64 43'03" West, 1.00 feet to a cross notch existing in
the west line of aforesaid Lot 20158; thence
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇ Fax: ▇▇▇.▇▇▇.▇▇▇▇
In the west line of said ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇"▇▇'▇▇" ▇▇▇▇, 57.50 feet to the point of
beginning. Containing +/- 0.8801 acres, or 38,337
square feet of land.
Subject to all easements, covenants and restrictions of
record.
The above description is the result of a field
survey supervised by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ of Preferred
Surveying Company, Inc., Ohio Registered Surveyor
No. 7181, dated 12-January 2004.
The above described real estate is a part of the same
premises conveyed to :▇▇▇▇▇ Holdings, Ltd, by (Iced recorded
in Official Record 6050, Page 1640, of the ▇▇▇▇▇▇ County,
Ohio Recorder's Office.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇ Fax: ▇▇▇.▇▇▇.▇▇▇▇
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made as of January
16, 2004 (the "Commencement Date"), between BLUE ▇▇▇▇ PARTNERS,
LLC, an Ohio limited liability company ("Landlord"); and ADVANCE
STORES COMPANY, INCORPORATED, a Virginia corporation ("Tenant").
In consideration of their mutual covenants and other
valuable consideration, the adequacy and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1) LEASED PREMISES. Subject to and in accordance with the terms
hereof, Landlord hereby leases to Tenant, and Tenant leases from
Landlord, the premises situated at University Boulevard, in the
City of Middletown, ▇▇▇▇▇▇ County, Ohio consisting of part of lot
number 692, entire lots number 693, 694, 695, 696, 697, and 698
as the same are known and designated on the recorded plat of the
City of Middletown, ▇▇▇▇▇▇ County, Ohio of which is outlined in
red on a survey dated December 10, 2003, prepared by Preferred
Surveying Company, Inc. (the "Survey"), which Survey is attached
hereto as Exhibit "A" and is incorporated herein by this
reference (together with all appurtenances, rights, interest,
easements and privileges in any way pertaining thereto, the
"Land"), together with the improvements to be constructed on the
Land by Landlord pursuant to this Lease, such improvements to
consist of a building space of approximately 7,000 square feet of
gross leasable floor area (the "Building") and the surrounding
parking, landscape and sidewalk areas (including any and all
striping of such parking areas) (collectively, the "Other
Improvements"), all as identified on the site plan attached
hereto as Sheet 2 in Exhibit "B," Attachment 1 and incorporated
herein by this reference (the "Site Plan"). The Land, the
Building and the Other Improvements, together with the "Tenant's
Improvements" (as hereinafter defined), if any, shall hereinafter
be collectively referred to as the "Leased Premises."
2) CONSTRUCTION OF LEASED PREMISES. Landlord shall, at its sole
cost and expense, perform the "Work" (as defined in the
Construction Provisions) in accordance with the construction
provisions attached hereto as Exhibit "B" (the "Construction
Provisions").
3) USE.
a) Tenant may use the Leased Premises for the display,
storage and sale of automotive parts, accessories, supplies
and/or maintenance items or for any and all other lawful
uses; provided, however, in no event shall the Leased
Premises be used for any of the following (collectively, the
"Prohibited Uses"):
i) trailer court, junk yard, waste material collection
facility, or auction house;
ii) establishments providing adult-type entertainment or
displays of a variety involving or depicting nudity or lewd acts;
iii) a massage parlor;
iv) a funeral home;
v) a facility for the sale of paraphernalia for use with
illicit drugs;
vi) a facility for the sale or display of pornographic (as
determined by community standards for the area in which the
Leased Premises is located) material;
vii) overnight parking of campers, mobile homes, boats or tractor
trailers, except for such trailers as are a part of Tenant's
business operations;
viii) any exploration, drilling or similar operation of any
kind;
ix) dance hall, bar, restaurant, off-track betting business,
billiard or pool hall, bingo or similar games of chance, game
arcade, nightclub or flea market;
x) any use which involves the raising, breeding or keeping of
any animals or poultry;
xi) any dangerous or unsafe uses;
xii) any industrial uses, including, without limitation, any
manufacturing, smelting, rendering, brewing, refining, chemical
manufacturing or processing, or other manufacturing uses;
xiii) any mining or mineral exploration or development except
by non-surface means;
xiv) drug or alcohol rehabilitation or treatment center;
xv) abortion clinic; or
xvi) any place of religious worship such as a church, temple,
synagogue, mosque, or the like.
b) Tenant may operate its business at the Leased Premises under
any name of its choosing or permitted by law and may set its
hours and days of operation, if any, in its sole discretion.
Notwithstanding anything contained herein to the contrary, (i)
nothing in this Lease shall constitute an agreement of Tenant
(express or implied), directly or indirectly, to open or operate
a business in the Leased Premises, the rentals received hereunder
constituting the entire consideration for Landlord's entering
into this Lease, and (ii) Tenant may, at any time during the
"Term" (as hereinafter defined), without Landlord's consent,
cease business operations at and/or remove any and all of
Tenant's "Personal Property" (as hereinafter defined) from the
Leased Premises.
4) TERM/EXTENSIONS.
a) The initial term of this Lease (the "Initial Term")
shall commence on the Commencement Date and shall terminate
on the last day of the month in which occurs the fifteenth
(15th) annual anniversary of the "Rent Commencement Date"
(as hereinafter defined). The Rent Commencement Date shall
be the earlier to occur of (i) the date that is forty-five
(45) days following the "Completion Date" (as defined in the
Construction Provisions) or (ii) the date on which Tenant
opens for business to the public at the Leased Premises.
Notwithstanding the foregoing, in the event the following
conditions have not been satisfied prior to such Rent
Commencement Date, then Tenant may, at Tenant's option, pay
no Basic Rent, Percentage Rent or any other charges due
under this Lease to Landlord until such time as such
conditions have been satisfied or waived (whereupon Tenant
shall pay all accrued Basic Rent, Percentage Rent and/or
other charges due hereunder at the time of such satisfaction
or waiver):
(i) Landlord has delivered to Tenant all applicable
subordination, non-disturbance and attornment agreements executed
by any and all Mortgagees and/or Ground Lessors with respect to
the Leased Premises in the form attached to this Lease as Exhibit
"C"; and
(ii) Landlord has delivered to Tenant, and Tenant has approved,
those certain easement agreements, declarations, covenants,
restrictions, rules, regulations and other documents or
agreements affecting the Leased Premises set forth in Exhibit "H"
as Permitted Encumbrances, and Landlord has placed of record and
delivered a certified copy to Tenant of all such agreements and
documents.
Landlord and Tenant shall confirm the Rent Commencement Date
by a supplemental commencement date agreement, the form of
which agreement is attached hereto as Exhibit "D". The
period of time from the Commencement Date until the Rent
Commencement Date shall hereinafter be referred to as the
"Construction Term."
b) In addition to the Initial Term, Tenant shall have the
option (each such right referred to herein as a "Renewal
Option") to renew and extend this Lease for three (3)
consecutive five (5) year periods (each such period referred
to as an "Option Period" and collectively as the "Option
Periods") immediately following the Initial Term, during
which Option Period(s) all the provisions, conditions and
covenants of this Lease shall continue in full force and
effect except that (i) "Basic Rent" (as hereinafter defined)
payable for the Option Period(s) shall be as set forth in
Section 5(a) of this Lease and (ii) "Percentage Rent" (as
hereinafter defined) payable for the Option Period(s) shall
be as set forth in Section 5(b) of this Lease. Each Renewal
Option shall be deemed exercised automatically unless Tenant
shall give Landlord written notice of its election not to
exercise any such Renewal Option at least one hundred eighty
(180) days prior to the expiration of the Initial Term or
any then-current Option Period, as applicable.
c) From and after the date on which a Renewal Option is
exercised, references to the words "Term" in this Lease
shall include the Option Period(s) by which the Term shall
have been extended. In the event this Lease is canceled or
terminated, the expiration date of this Lease shall be that
date on which this Lease is canceled or terminated. The term
"Lease Year" shall mean each successive period of twelve
(12) consecutive calendar months, commencing on the
anniversary of the Rent Commencement Date, except that the
first Lease Year shall commence on the Rent Commencement
Date.
5) RENT.
a) Basic Rent. Commencing on the Rent Commencement Date,
during each Lease Year, Tenant shall pay Landlord the
following monthly sums ("Basic Rent") which shall be
payable, in advance, on the first day of each month:
Initial Term:
Years 1-10 $10,860.50 per month
Years 11-15 $11,946.58 per month
First Option Period $12,543.92 per month
Second Option Period $13,171.08 per month
Third Option Period $13,829.58 per month
If the Rent Commencement Date shall be a day other than the
first day of a month, the amount of Basic Rent shall be
prorated for the balance of such month on a per diem basis,
and the prorated Basic Rent for such month shall be due and
payable on the Rent Commencement Date.
b) Percentage Rent. In addition to the Basic Rent, in the
event that Tenant's "Gross Sales" (as hereinafter defined)
during any calendar year exceed the applicable breakpoint set
forth in the table below, commencing on the Rent Commencement
Date, Tenant shall pay to Landlord a sum equal to two and one-
half percent (2.5%) of Tenant's Gross Sales in excess of the
applicable breakpoint (such payment being hereinafter
referred to as "Percentage Rent"):
Term Breakpoint
Initial Term:
Years 1-10 $5,213,040.00
Years 11-15 $5,734,360.00
First Option Period $6,021,080.00
Second Option Period $6,322,120.00
Third Option Period $6,638,200.00
Within ninety (90) days after the end of each calendar year
or the end of the Term, whichever shall first occur, Tenant
shall deliver to Landlord, at the place then fixed for the
payment of rent, an annual statement of Gross Sales for the
preceding calendar year and the full Percentage Rent payable
hereunder, if determined to be payable.
Tenant shall prepare and keep at its principal offices, until at
least the date that is twelve (12) months following the end of
each calendar year, an accurate account of its Gross Sales
disclosing the cash receipts and such other information as may be
reasonably necessary to determine the Gross Sales, including all
such sales records which would normally be examined by an
independent accountant pursuant to generally accepted accounting
principles if an audit of Tenant's Gross Sales were to be
performed. Landlord may, at its option and expense, acting alone
or through its duly authorized representatives, inspect and audit
Tenant's record of sales made from the Leased Premises at any
time or from time to time, provided such inspection and audit
covering a calendar year (i) is made within twelve (12) months
following receipt of Tenant's statement for such calendar year
and (ii) is performed by Landlord's employees or regularly
employed certified public accountants whose fees shall not be
charged on a contingent fee or similar basis. Any claim by
Landlord for revision of any statement of Gross Sales or for
additional Percentage Rent for any calendar year must be made in
writing to Tenant within fifteen (15) months after the receipt of
Tenant's statement for such calendar year. If such inspection and
audit shall disclose a deficiency in Percentage Rent paid for
such calendar year, Tenant shall promptly pay to Landlord the
amount of such deficiency. Furthermore, notwithstanding anything
contained herein to the contrary, if such inspection and audit
shall disclose that the Gross Sales stated in the previously
submitted annual statement of Gross Sales of Tenant were less
than ninety-five percent (95%) of the actual Gross Sales, and
that Percentage Rent has thus been erroneously underpaid, Tenant
shall pay or reimburse Landlord for all reasonable costs and
expenses of the certified public accountant selected to perform
such inspection and audit. Landlord agrees to hold in confidence
all information obtained from Tenant during any inspection and
audit of Tenant's books and records; provided, however, Landlord
may disclose Tenant's Gross Sales to Landlord's "Mortgagee(s)"
(as hereinafter defined) if such disclosure is required by such
Mortgagee(s) and if such Mortgagee(s) agree to hold such
information in confidence.
The term "Gross Sales" as used in this Lease shall mean the
actual sales price for all goods, wares and merchandise sold by
Tenant upon or from the Leased Premises, including sales and
charges for cash or credit (subject to collection, as limited by
subsection (12) below) and including, but not limited to, such
sales and services where the orders therefore originate in, at or
from the Leased Premises; provided, however, that the following
transactions shall be expressly excluded from the term "Gross
Sales": (1) service charges paid by customers or other charges
for extending credit to customers, and amounts in excess of
Tenant's cash sales price charged to customers on sales made on
credit or under a time payment plan; (2) sales to employees of
Tenant at discount; (3) returns to and refunds made by Tenant;
(4) exchanges of merchandise between stores or warehouses of
Tenant or any affiliate or subsidiary of Tenant where such
exchange is made solely for the convenient operation of the
business of Tenant and not for the purpose of consummating a sale
which has been made at the Leased Premises; (5) city, county,
state or federal sales, luxury or excise taxes (if otherwise
included in the calculation of Gross Sales) on such sales which
are both added to the selling price (or absorbed therein) and
paid to the taxing authority by Tenant (but not by Tenant's
vendor); (6) sums and credits received in the settlement of
claims for loss of or damage to
merchandise; (7) receipts for incidental items, such as
cigarettes and candy, from snack bars, cafeterias and
vending machines operated primarily for the use of Tenant's
employees and receipts from public or private pay
telephones; (8) charges for repair and/or servicing of
merchandise, including sales of service contracts; (9)
delivery and installation charges relating to work performed
outside the Leased Premises; (10) exchanges of merchandise,
but only to the extent of the value of the merchandise
returned for exchange; (11) sales of Personal Property used
at the Leased Premises and not sold in the ordinary course
of business; (12) sales which are uncollectible and written
off Tenant's books as uncollectible; (13) allowances on
merchandise claimed to be defective or unsatisfactory; (14)
service charges on bad checks; (15) revenues generated from
video games, vending machines, shampoo machines, in-store
automatic teller machines, telefax and telecopy machines or
other similar machinery and equipment; (16) sales of lottery
tickets; (17) revenues generated from coupon processing;
(18) accommodation check cashing fees and accommodation
sales, such as sales of postage stamps, government bonds or
savings stamps or similar items; and (19) returns of
merchandise to shippers or manufacturers.
Tenant makes no representations or warranties as to the
sales, if any, which it expects to make in the Leased
Premises, and Landlord acknowledges that the Percentage
Rent, if any, is in the nature of a bonus, the amounts of
which, if any, may fluctuate from year to year. Landlord and
Tenant agree that if Tenant should assign, sublease or
vacate the Leased Premises prior to the expiration of the
Term, Tenant's liability for rent due after Tenant has
assigned, subleased, or vacated the Leased Premises shall be
limited to Basic Rent and shall not include Percentage Rent.
c) Tenant shall have no obligation to pay Basic Rent,
Percentage Rent or any other charges due under this Lease to
any party other than Landlord unless and until Tenant has
received notice of a change given pursuant to Section 24
below. In the event such notice is given in connection with a
transfer or sale of Landlord's interest in the Leased
Premises and/or this Lease, such notice shall not be binding
upon Tenant until Tenant has received (i) a copy of the
instrument assigning or transferring Landlord's interest,
(ii) a letter specifying the addresses to which rent and
notices are to be forwarded to such assignee or transferee
and (ii) a W-9 form executed by the assignee or transferee.
The instrument assigning or transferring Landlord's interest
shall evidence the fact that such assignee or transferee has
assumed all of Landlord's obligations under this Lease and
has acquired sufficient title to the Leased Premises to
enable such assignee or transferee to perform such
obligations; provided, however, this provision shall not be
applicable to any transfer given as security for a loan, and
no transfer shall release a prior Landlord from any liability
hereunder that accrued during the period of such prior
Landlord's ownership of the Leased Premises.
6) WARRANTIES
a) Landlord warrants and represents that, as of the
Commencement Date and during the Term:
i) Landlord (1) is an Ohio limited liability company duly
formed, validly existing and in good standing under the law of
the State of Ohio is qualified to do business in and is in good
standing under the laws of the State of Ohio which the Land is
located (the "State"), and (3) has full right and power to
execute and perform this Lease and to grant the estate demised
herein; Landlord's Member, who is acting as its signatory for
this Lease, is duly authorized and empowered to act for and on
behalf of the limited liability company, and this Lease,
including its execution by Landlord, is enforceable and binding
upon Landlord and has been authorized by all requisite action on
behalf of the limited liability company. Upon request by Tenant,
Landlord shall furnish to Tenant (i) written evidence of
Landlord's authority to complete this transaction and empowering
those executing documents on Landlord's behalf to do so and (ii)
Landlord's certificate of good standing in the State;
ii) Landlord is either currently the owner of the Land in fee
simple absolute or will become such owner; this Lease is and
shall be a first lien on the Leased Premises subject only to any
"Mortgage" (as hereinafter defined) or "Ground Lease" (as
hereinafter defined) to which this Lease may be subordinated as
set forth in Section 20 below; and neither the "Permitted
Encumbrances" (as hereinafter defined) nor any other encumbrances
grant any other party the rights to use any parking spaces
located on the Leased Premises;
iii) Neither the execution and delivery by Landlord of this Lease
nor the performance by Landlord of the terms hereof will (x)
conflict with or violate any other agreement or instrument or any
writ, order or decree to which Landlord is a party or by which
Landlord is bound or (y) be precluded by or cause a breach of any
agreement, mortgage, contract or other instrument or document to
which Landlord is a party or which encumbers or otherwise
adversely affects the Leased Premises; and
iv) This Lease represents the valid, binding obligation of
Landlord, enforceable against Landlord in accordance with its
terms.
b) Landlord warrants and represents that, as of the Commencement
Date:
i) The Leased Premises is presently, or will be prior to
commencement of the Work, properly subdivided in compliance with
all applicable laws and regulations and constitutes a tax parcel
separate from any other real property; the zoning classification
of, and all other governmental regulations pertaining to, the
Leased Premises shall permit the construction by Landlord as
provided by this Lease and the use of the Leased Premises by
Tenant in accordance with the terms of this Lease; and the number
of parking spaces totaling forty-five (45) spaces as shown on the
Site Plan shall be provided in the parking area;
ii) Landlord's fee simple interest in the Leased Premises is
free and clear of any mortgages, deeds, encumbrances,
declarations, easements, agreements, leases,tenancies,
restrictions, rules or regulations which affect or restrict or
could affect or restrict the use or intended use of the Leased
Premises by Tenant, its employees, customers, invitees,
successors and/or assigns, except those matters set forth on
Exhibit "H" attached hereto and entitled "Permitted Encumbrances"
(the "Permitted Encumbrances"); and
iii) The execution and delivery of this Lease by
Landlord has been duly authorized by all required
corporate action.
c) Tenant represents and warrants to Landlord that:
i) Tenant (1) is a corporation duly formed, validly existing
and in good standing under the law of the Commonwealth of
Virginia and (2) is qualified to do business in and is in good
standing under the laws of the State;
ii) Neither the execution by Tenant of this Lease nor the
performance by Tenant of the terms hereof will conflict with or
violate any other agreement or instrument or any writ, order or
decree to which Tenant is a party or by which Tenant is bound;
and
iii) The execution and delivery of this Lease by Tenant has been
duly authorized by all required corporate action, and this Lease
represents the valid, binding obligation of Tenant, enforceable
against Tenant in accordance with its terms.
7) TENANT'S FURNISHINGS, FIXTURES, EQUIPMENT AND OTHER PERSONAL
PROPERTY. Tenant, at its sole cost and expense, may supply and
install anywhere in or on the Leased Premises any furnishings,
fixtures, equipment and/or other personal property, including a
satellite dish and any necessary cables or supporting equipment
(collectively, "Personal Property"), which it deems necessary
for its use of the Leased Premises; provided, however, that
Tenant shall repair, at its own expense, any damage to the
Leased Premises occasioned by such installation. Landlord and
Tenant recognize that Tenant may commence the installation of
its Personal Property prior to the Completion Date, as defined
in the Construction Provisions. Any such Personal Property
supplied and installed in the Leased Premises, except that which
is permanently attached, shall be and remain the property of
Tenant. Such delivery, installation and placement of Personal
Property in the Leased Premises by Tenant shall not constitute
final acceptance or actual possession of the Leased Premises by
Tenant, and shall not obligate Tenant to pay Basic Rent,
Percentage Rent or other charges prior to the Rent Commencement
Date set forth in Section 4(b) of this Lease. It is agreed by
Landlord and Tenant that upon and during delivery of such
Personal Property by Tenant, Landlord shall provide Tenant with
a secure structure and access to the Leased Premises.
Any damage to the Leased Premises occasioned by the removal of
such Personal Property shall be repaired by Tenant at its sole
cost and expense, unless such damage is caused by Landlord's
negligence, intentional misconduct, or willful acts, or the
negligence, intentional misconduct, or willful acts of
Landlord's agents or contractors, in which event such damage
shall be repaired by
Landlord at its sole cost and expense. Risk of loss as to such
Personal Property shall remain with Tenant at all times prior to
and during the Term. Tenant shall indemnify, defend, and save
Landlord harmless from and against all claims, suits, liabilities
and expenses, including reasonable attorneys' fees, for damage or
injury to persons or property directly resulting from Tenant's
negligent installation of Personal Property in the Leased
Premises, except to the extent that such claim, suit, liability
or expense is caused, in whole or in part, by Landlord's
negligence, intentional misconduct, or willful acts, or the
negligence, intentional misconduct, or willful acts of Landlord's
employees, agents or contractors.
8) TENANT'S ALTERATIONS AND SIGNS.
a) Tenant shall have the right, but not the obligation, at its
sole cost and expense and at any time, without Landlord's
consent, to make non-structural improvements, alterations and
replacements in, on or to the Leased Premises. Tenant agrees that
such improvements, alterations, additions and replacements will
(i) be made in a good and workmanlike manner by licensed
contractors and (ii) comply with all applicable laws, and Tenant
shall defend, indemnify and hold Landlord harmless from any and
all costs, damages and expenses resulting therefrom, except to
the extent that such costs, damages or expenses are caused by
Landlord's negligence, intentional misconduct, or acts or
omissions, or the negligence, intentional misconduct, or acts or
omissions of Landlord's agents or contractors. Tenant shall not
make any structural improvements, alterations, additions or
replacements without first obtaining Landlord's written consent
thereto, which consent shall not be unreasonably withheld,
conditioned or delayed. If Landlord's consent is required and if
plans and specifications for such work must be prepared in order
for Tenant to obtain a building permit for such work, then
conceptual plans and specifications for such work shall be
provided to Landlord prior to commencement of any such work.
Landlord shall be deemed to have consented to such work if
written notice of disapproval, with reasons specified, is not
received by Tenant within fifteen (15) days following Tenant's
delivery of such plans and specifications to Landlord. Without
cost or expense to Landlord, Landlord shall cooperate with Tenant
in Tenant's efforts to obtain any and all licenses, building
permits, certificates of occupancy or other governmental
approvals which may be required in connection with any such
improvements, alterations, additions and replacements, and
Landlord shall execute, acknowledge and deliver any documents
reasonably required in furtherance of such purposes.
b) Tenant may erect, at its cost and in its sole discretion, an
announcement sign on the Leased Premises, the location, size and
style of which shall be in Tenant's sole and absolute discretion,
announcing Tenant's future business at the Leased Premises.
Tenant may, at its cost and in its sole discretion, but subject
to compliance with all applicable governmental regulations,
install (1) any and all exterior signs on the exterior walls
and/or roof of the Leased Premises as it deems necessary and (2)
any and all pylon or monument signs on the Leased Premises as it
deems necessary. Tenant's ability to erect at the Leased Premises
no less than 225.66 square feet of exterior signage in the
color(s), size(s) and location(s) shown on page 7 of the
Prototypical Plans and Exhibit "I-1" (as defined in the
Construction Provisions) and no less than a 60 square foot pylon
sign in the
size(s) and location(s) shown on page 7 of the Prototypical
Plans and Exhibit "I-1" (as defined in the Construction
Provisions) and no less than a 60 square foot monument sign
in the color(s), size(s) and location(s) shown in ▇▇▇▇▇▇▇ "▇-
▇" ▇▇▇▇▇▇▇▇ hereto and on the Site Plan is a condition
precedent to its obligations under this Lease and, in that
regard, Tenant shall apply for all necessary governmental
permits for its desired signage within a reasonable period
of time after the Commencement Date of this Lease and shall
reasonably diligently pursue such application thereafter. In
the event Tenant does not receive all necessary governmental
permits for Tenant's desired signage by the date Landlord
has received the "Approvals" (as defined in Section 3(a) of
the Construction Provisions), Tenant, at its option, may
terminate this Lease by giving written notice to Landlord.
If local laws do not permit the signage that Tenant desires
to erect, then Tenant may, at its expense, seek a sign code
variance to allow Tenant's signage. Landlord shall execute
any documents, forms or applications necessary for Tenant to
obtain all necessary zoning approvals, variances or special
exceptions for any and all of Tenant's signage and shall
promptly execute all documents required in connection
therewith. Notwithstanding anything contained herein to the
contrary, Tenant shall be entitled, without Landlord's
consent, but subject to compliance with all applicable
governmental regulations, to replace any and all of its
signs with signage consistent with Tenant's then-current
prototypical sign plans. In the event of an assignment or
subletting as a result of which Tenant is no longer
occupying any portion of the Leased Premises, Tenant's signs
may be replaced by signs identifying the appropriate
assignee or subtenant, provided that the specific design of
such signage shall be subject to Landlord's consent, which
consent shall not be unreasonably withheld, conditioned or
delayed.
c) Any alterations made by Tenant to the Leased Premises
shall hereinafter be referred to as the "Tenant's
Improvements." Except for Tenant's Personal Property, the
Tenant's Improvements that are permanently attached or
affixed to the Leased Premises shall become the property of
Landlord upon the expiration of this Lease.
9) ASSIGNMENT AND SUBLEASING. Tenant shall have the right to
sublet, assign, transfer, reassign and grant concessions or
licenses (a "Transfer") in all or any part of the Leased
Premises and any of Tenant's rights and obligations under this
Lease, without Landlord's consent. In the event of such a
Transfer, Tenant shall remain liable for all of Tenant's
obligations to Landlord arising hereunder (except for the
payment of Percentage Rent) so long as this Lease is not
changed, modified or amended in any respect by Landlord and any
transferee. Should Tenant wish to be relieved of its obligations
hereunder upon a Transfer, Landlord's prior consent to a
Transfer shall be required, which consent shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding
the immediately preceding sentence, in the event any assignee
hereunder or assignee's guarantor subsequent to an assignment
has a net worth calculated in accordance with generally accepted
accounting principles equal to or greater than the net worth of
Advance Stores Company, Incorporated, as of the end of the
fiscal year in which the Commencement Date of this Lease occurs,
Landlord's consent to such assignment shall not be necessary,
and Tenant shall thereafter automatically (and without any
action by Landlord) be relieved of any further obligations under
this Lease. Landlord acknowledges and agrees that Landlord's
conditioning of the granting of its consent upon obtaining (i) a
material amendment or modification to the terms of this Lease or
(ii) monetary compensation, shall be deemed
unreasonable. In the event Tenant shall be reorganized, merged or
consolidated with any other corporation, limited liability
company or other business entity, or shall sell all or
substantially all of its assets, any resulting or surviving
corporation, limited liability company or other business entity,
or any other person, which shall, as a result of such
reorganization, merger, consolidation or sale, succeed to
substantially all of the assets or the business of Tenant, and
which shall assume all of the liabilities and obligations of
Tenant under this Lease, shall automatically and without the
necessity of further assignment or any other act become and be
Tenant under this Lease in accordance with and subject to all of
the terms, provisions and conditions hereof. Tenant shall give
Landlord notice of any Transfer, such notice to include a copy of
the original instrument evidencing such Transfer; provided,
however, that Tenant's failure to provide such notice shall not
be an "Event of Default" (as hereinafter defined) by Tenant
hereunder or give Landlord the right to exercise any right or
remedy against Tenant hereunder.
10) MAINTENANCE AND REPAIRS:
a) Subject to Landlord's repair and restoration obligations
described in Sections 10(b) and 14 below, Tenant shall, at
its cost, during the Term (excluding the Construction Term):
i) Maintain, repair and/or replace, in good condition, ordinary
wear and tear excepted, each and every portion of the Leased
Premises (including, without limitation, all exterior signs
related to safety required by law [including handicapped parking
signs and fire lane signs] and the exterior of the Building)
except for any items the maintenance, repair or replacement of
which are Landlord's responsibility hereunder; and
ii) Keep the Leased Premises in a reasonably clean and neat
condition and not permit the accumulation of any trash, rubbish
or garbage (except as accumulated in containers awaiting
collection or disposal) in, on or about any part of the Leased
Premises and arrange for collection or disposal of accumulated
trash, rubbish and garbage from the Leased Premises.
b) Notwithstanding the provisions of Section 10(a) above and
anything contained herein to the contrary, Landlord shall be
responsible, at its sole cost and expense, for the following
maintenance, repairs and/or replacements to the Leased
Premises during the Term:
i) any and all maintenance, repairs and/or replacements to the
slab, foundation and structure of the Leased Premises (including,
without limitation, repairing any cracks or other damage thereto,
but specifically excluding painting of the exterior walls unless
painting is required as a result of Landlord's failure to
maintain, repair and/or replace the slab, foundation or structure
as provided herein);
ii) any and all maintenance, repairs and/or replacements to the
parking area of the Leased Premises in the event that Landlord
fails to deliver the certificate as to the parking area of the
Leased Premises as required by Section 2(c) of the Construction
Provisions or fails to construct the parking area in accordance
with the design standards therefor as required by Section
2(b) of the Construction Provisions;
iii) any and all maintenance, repairs and/or replacements to the
roof of the Leased Premises, in the event that Landlord fails to
deliver the certificates and warranties as to the roof of the
Leased Premises required by Section 2(e) of the Construction
Provisions;
iv) any and all maintenance, repairs and/or replacements to the
heating, ventilation and air-conditioning system of the Leased
Premises (the "HVAC"), in the event that Landlord fails to
deliver the certificates as to the HVAC as required by Section
2(f) of the Construction Provisions;
v) any and all maintenance, repairs or replacements which
become necessary as a result of Landlord's negligence,
intentional misconduct, or acts or omissions, or the negligence,
intentional misconduct, or acts or omissions of Landlord's agents
or contractors; and
vi) any and all maintenance, repairs and/or replacements to the
Leased Premises which (i) are required during the first Lease
Year of the Term due to the original construction of the Leased
Premises or (ii) are made necessary by reason of defects in the
workmanship or materials used in the construction of any portion
of the Leased Premises (except for any portion of the. Leased
Premises that was constructed by Tenant) or are due to the
settling of the Leased Premises.
c) With regard to those items which are Landlord's responsibility
under Section 10(b) above, if an emergency situation occurs,
Tenant shall make all reasonable efforts to contact Landlord by
telephone or facsimile to advise Landlord of the need for such
maintenance, repair or replacement. If after making reasonable
efforts to contact Landlord, either Tenant is unable to contact
Landlord or if Tenant succeeds in contacting Landlord, and
Landlord fails to undertake action to correct the emergency
situation within twenty-four (24) hours, Tenant may perform such
maintenance, repair or replacement as Tenant deems necessary.
Within thirty (30) days after written notice from Tenant
(accompanied by an invoice or other reasonable evidence of the
costs to be reimbursed), Landlord shall pay Tenant an amount
equal to the actual, out-of-pocket costs incurred by Tenant in
the performance of such maintenance, repair and/or replacement.
If Landlord fails to pay to Tenant such costs within such thirty
(30) day period, then Tenant may deduct the amount of such costs
from Basic Rent and any other charges owed by Tenant to Landlord.
For purposes of this Section 10(c), an "emergency situation"
means a condition or state of facts which if not corrected would
result in further damage to the Leased Premises or its contents
or personal injury or damage to any other property or which would
in any way prevent Tenant from conducting its business at the
Leased Premises in its customary manner. The provisions of this
Section 10(c) shall control over any conflicting provisions
contained in this Lease.
d) Landlord shall protect, defend, indemnify and hold Tenant
harmless from all losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs)
incurred for work, labor, repairs, alterations, improvements,
services and/or materials supplied to the Leased Premises by or
at the direction of Landlord, or which may occur, result from or
arise out of the failure of Landlord during the Term to make
properly any required repairs or perform any maintenance which is
the responsibility of Landlord under this Lease, except to the
extent that such losses, damages, liabilities, costs and/or
expenses arise out of Tenant's negligence, intentional
misconduct, or acts or omissions, or the negligence, intentional
misconduct, or acts or omissions of Tenant's agents or
contractors. Tenant shall protect, defend, indemnify and hold
Landlord harmless from all losses, damages, liabilities, costs
and expenses (including reasonable attorneys' fees and court
costs) incurred for work, labor, repairs, alterations,
improvements, services and/or materials supplied to the Leased
Premises by or at the direction of Tenant, or which may occur,
result from or arise out of the failure of Tenant during the Term
to make properly any required repairs or perform any maintenance
which is the responsibility of Tenant under this Lease, except to
the extent that such losses, damages, liabilities, costs and/or
expenses arise out of Landlord's negligence, intentional
misconduct, or acts or omissions, or the negligence, intentional
misconduct, or acts or omissions of Landlord's agents or
contractors.
e) Landlord hereby assigns to Tenant all of Landlord's interest
in, and rights under (including rights to enforce), all
warranties and guaranties received in connection with the Work or
any other work, maintenance, repairs and/or replacements
performed by, or at the direction of, Landlord in, on or at the
Leased Premises; provided, however, that Landlord shall retain
such interest in and rights under such warranties and guaranties
as are necessary or desirable for Landlord to complete any
maintenance, repairs and/or replacements to the Leased Premises
which (i) are required during the first Lease Year of the Term
due to the original construction of the Leased Premises or (ii)
are made necessary by reason of defects in the workmanship or
materials used in the construction of any portion of the Leased
Premises (except for any portion of the Leased Premises that was
constructed by Tenant) or are due to the settling of the Leased
Premises, as provided in Section 10(b)(vi) above.
11) UTILITIES. Tenant agrees to pay the charges and all required
deposits for all utility services furnished to and used by Tenant
in the Leased Premises during the Term directly to the utility
companies providing such services, excluding any and all
connection fees, hook-up charges, impact fees and other similar
costs related to the initial start-up expenses for providing such
services to the Leased Premises, all of which costs and expenses
shall be paid by Landlord. Subject to applicable law, Tenant
shall be entitled to select the utility service provider which
shall provide water, electric, gas, cable and telecommunication
services to the Leased Premises.
12) INSURANCE; INDEMNIFICATION.
a) During the Term (excluding the Construction Term),
Tenant shall, at its sole cost and expense, obtain and
maintain property insurance covering the Leased
Premises in an amount not less than the full
replacement cost thereof, with such deductibles and
retentions as determined by Tenant in its sole and absolute
discretion. Such insurance shall be provided by companies
authorized to do business in the State.
b) During the Term (excluding the Construction Term) Tenant
shall maintain with respect to the Leased Premises a policy of
commercial general liability insurance, which insurance shall
stipulate limits of liability of not less than $2,000,000 each
occurrence, single limit bodily injury and/or property damage
combined (with such deductibles and retentions as determined by
Tenant in its sole and absolute discretion), and shall be
provided by companies authorized to do business in the State.
c) Tenant shall, within fifteen (15) days after receipt of
written request therefor by Landlord, provide Landlord with (i)
evidence of such property insurance and (ii) a certificate of
such commercial general liability insurance, each naming Landlord
and Landlord's Mortgagee as additional insureds or loss payees,
as applicable, and providing that the applicable coverage shall
not be cancelled without thirty (30) days notice to the holder of
such evidence or certificate, as applicable.
d) Notwithstanding anything to the contrary contained herein,
Tenant shall have the right to self-insure against any of the
risks or portions thereof set forth in this Section 12, provided
Tenant then has a reported net worth (calculated in accordance
with generally accepted accounting principles), as of the end of
Tenant's most recent quarterly reporting period, of not less than
One Hundred Million Dollars ($100,000,000).
e) Landlord shall maintain with respect to the Leased Premises
a policy of commercial general liability insurance, which
insurance shall stipulate limits of liability of not less than
$2,000,000 each occurrence, single limit bodily injury and/or
property damage combined, and shall be provided by companies
authorized to do business in the State. Such policies of
insurance shall name Tenant as an additional insured. Landlord
shall, within a reasonable period of time after receipt of
written request therefor by Tenant, provide a certificate of such
commercial general liability insurance evidencing Tenant as an
additional insured on such policy and providing that the
applicable coverage shall not be cancelled or modified without
thirty (30) days notice to the holder of such certificate.
f) During any period in which Landlord or Tenant is conducting
construction activities at, in or on the Leased Premises, such
party shall keep, or cause its general contractor to keep, in
full force and effect, with regard to the Leased Premises, in
form reasonably acceptable to the other party, at least the
minimum insurance coverages set forth below:
i) Worker's Compensation - Statutory Limits; Employers
Liability -$2,000,000;
ii) Automobile Liability for all vehicles with limits of
$1,000,000; and
iii) Commercial General Liability to include premises
operations and products/completed operations coverage with
limits of $3,000,000.
Additionally, such party shall keep or require its general
contractor to keep in full force and effect a policy of builder's
risk insurance covering loss or damage to the Leased Premises for
the full replacement cost of all such construction. To the
fullest extent the other party has an insurable interest, such
liability policy shall name the other party as an additional
insured and such builder's risk policy shall name the other party
as a loss payee.
g) Any insurance coverage enumerated in this Lease may be
effected by a blanket policy or policies of insurance or under so-
called "multi-peril" or "package" insurance policies, provided
that the total amount of insurance available with respect to the
Leased Premises and Tenant's or Landlord's liability hereunder
shall be at least the equivalent of separate policies in the
amounts herein required, and provided further that in other
respects any such policy or policies shall comply with the
provisions of this Lease. Landlord shall not be entitled to self-
insure any of the insurance coverages recited herein. An
"umbrella" policy may be provided and utilized by either party to
increase the limit provided by any individual or blanket policies
in lower amounts, and the combined occurrence and aggregate
limits provided by all such policies with respect to the Leased
Premises and Tenant's or Landlord's liability hereunder shall be
satisfactory provided that the terms and conditions of such
policies otherwise comply with the provisions of this Lease.
h) Notwithstanding anything to the contrary contained herein,
Landlord and Tenant hereby release each other, to the extent of
their agreed-upon insurance coverage, from any and all liability
for any loss or damage caused by fire or any other casualty
insured against, even if such fire or other casualty shall be
brought about by the fault or negligence of the other party, or
any persons claiming under such other party.
i) Landlord hereby agrees to exonerate, protect, defend,
indemnify and hold Tenant and its officers, directors,
stockholders, members, beneficiaries, partners, representatives,
agents and employees harmless from and against any and all
losses, damages, claims, suits or actions, judgments and costs
(including reasonable attorneys' fees) arising out of any injury
to or death of persons or damage to property on or about the
Leased Premises caused by the intentional or negligent acts or
omissions of Landlord or its employees, agents or contractors.
Tenant agrees to exonerate, protect, defend, indemnify and hold
Landlord and its officers, directors, stockholders, members,
beneficiaries, partners, representatives, agents and employees
harmless from and against any and all losses, damages, claims,
suits or actions, judgments and costs (including reasonably
attorneys' fees) arising out of any injury to or death of persons
or damage to property on or about the Leased Premises caused by
the intentional or negligent acts or omissions of Tenant or its
employees, agents or contractors.
13) REAL ESTATE TAXES.
a) Commencing on the Rent Commencement Date, during the Term,
Tenant shall reimburse Landlord for all "Real Estate Taxes" (as
hereinafter defined). If the Rent Commencement Date occurs or the
Term terminates during any part of a calendar year, Tenant shall
be responsible for such Real Estate Taxes for only that portion
of the calendar year for which Tenant is responsible to pay Basic
Rent hereunder. However, the amount of Real Estate Taxes
attributable to the Leased Premises for which Tenant shall
reimburse Landlord in part shall be less any abatements,
discounts or refunds thereon. In paying such Real Estate Taxes,
Landlord agrees to take full advantage of any and all available
discounts, and Tenant shall not be obligated to pay any portion
of any penalty or interest for delinquent payment, nor shall
Tenant be obligated to pay any portion of sums owed by Landlord
due to failure of Landlord to take advantage of any discount.
Tenant shall reimburse Landlord for such Real Estate Taxes within
thirty (30) days of receipt from Landlord of a receipted tax ▇▇▇▇
(or in the alternative copy of the tax ▇▇▇▇ and a copy of
Landlord's check to the appropriate governmental agency or
authority) evidencing Landlord's payment thereof to the taxing
authority.
b) Tenant shall have the right, at Tenant's sole expense, to
contest the amount or validity, or otherwise seek an exemption or
abatement, of any Real Estate Taxes or to seek a reduction in the
valuation of the Leased Premises assessed for purposes of Real
Estate Taxes by appropriate proceedings diligently conducted in
good faith, provided that (i) Tenant shall first have notified
Landlord in writing of its intent to do so and (ii) such contest
will not result in the foreclosure, loss or forfeiture of the
Leased Premises, or any portion thereof In any instance where any
such action or proceeding is being undertaken by Tenant, Landlord
shall (i) cooperate with Tenant, (ii) execute any and all
documents required in connection therewith and (iii) if required
by any law, rule or regulation of the taxing authority, shall
join with Tenant in the prosecution thereof Upon the termination
of the proceedings set forth above (unless the taxing authority
requires that Real Estate Taxes be paid under protest prior to
commencement of such proceedings), Tenant shall pay the
applicable Real Estate Taxes as finally determined in such
proceedings, the payment or partial payment of which may have
been deferred during the prosecution of such proceedings. Tenant
shall be entitled to a refund of any overpayment of Real Estate
Taxes relating or allocable to the Leased Premises, as well as a
reimbursement from the appropriate taxing authority of all costs,
fees and expenses it incurs in such protest or reassessment.
c) For purposes of this Lease, the term "Real Estate Taxes"
shall mean all general real estate taxes and assessments and
other ad valorem taxes, rates and levies paid upon or with
respect to the Leased Premises for a calendar year or a portion
thereof to any governmental agency or authority and all charges
specifically imposed in lieu of any such taxes, but specifically
excluding "roll-back" taxes or other similar land use charges.
Nothing contained in this Lease shall require Tenant to pay any
local, county, municipal, state or federal income, franchise,
corporate, estate, inheritance, succession, capital levy,
business or transfer tax of Landlord, or any local, county,
municipal, state or federal
income, profits, gross receipts, sales or renewal tax or
charge upon the rent or other charges payable by Tenant
under this Lease.
d) Landlord and Tenant understand and acknowledge that
certain credits, exemptions, refunds or abatements against
tax obligations of Tenant and/or Landlord, whether with
respect to Real Estate Taxes, personal property taxes, sales
taxes, use taxes, gross receipts taxes, income taxes,
payroll taxes, value added taxes or other taxes
(collectively, "tax benefits"), as well as incentive
payments or credits directly or indirectly from governmental
authorities ("incentive payments") may become available as a
result of the construction, use, occupancy or conduct of
Tenant's business at the Leased Premises, or the decision of
Tenant to establish and/or operate a business at the Leased
Premises. The full amount of such tax benefits and incentive
payments shall be the property of Tenant. In the event that
any such tax benefit or incentive payment is paid to,
accrues to the benefit of, or is otherwise received by
Landlord, at Tenant's option:
i) Landlord shall immediately account for and pay over the full
amount of such tax benefit or incentive payment to Tenant; or
ii) Tenant may offset the full amount of such tax benefit or
incentive payment against Basic Rent, Percentage Rent and any
other charges payable by Tenant to Landlord hereunder.
Landlord shall cooperate with Tenant and execute any
documents, forms, or applications as reasonably requested by
Tenant in order to enable Tenant to obtain any tax benefits
or incentive payments directly available to Tenant.
14) DAMAGE OR DESTRUCTION.
a) If, during the Term, a fire or other casualty shall
render the whole or any portion of the Leased Premises
untenantable, in Tenant's reasonable judgment, and if, in
Tenant's reasonable judgment, the Leased Premises can
reasonably be expected to be restored to substantially the
same condition existing immediately prior to such casualty
within one hundred eighty (180) days from the date of such
casualty, Landlord shall repair and restore the Leased
Premises to substantially the same condition existing
immediately prior to such casualty within such one hundred
eighty (180) day period (subject to any delays caused by a
"Force Majeure Event" [as hereinafter defined]). In the
event that Landlord timely completes such repair and/or
restoration, this Lease shall remain in full force and
effect. During the period during which such repair and/or
restoration is being performed, rent otherwise payable
hereunder shall ▇▇▇▇▇ in the proportion that the area of the
Leased Premises rendered untenantable bears to the entire
area of the Leased Premises until the Leased Premises is
completely restored, repaired, or replaced to the
satisfaction of Tenant; provided, however, that no rent
shall be payable for any portion of the Leased Premises
unless Tenant is able to conduct its usual business on that
portion of the Leased Premises that remains tenantable. In
the event that Landlord shall undertake to perform such
repair and restoration of the Leased Premises, Tenant
shall, prior to Landlord commencing such repair and restoration,
provide Landlord with
(i) all insurance proceeds and (ii) the amount of the difference
between the insurance proceeds and the full replacement cost of
the Leased Premises.
b) If, during the Term, a fire or other casualty shall render
the whole or any portion of the Leased Premises untenantable, in
Tenant's reasonable judgment, and if, in Tenant's reasonable
judgment, the Leased Premises cannot reasonably be expected to be
repaired and restored within one hundred eighty (180) days from
the date of such casualty, then Tenant may, by written notice to
Landlord sent within sixty (60) days from the date of such
casualty, terminate this Lease, which termination shall be
effective as of the date of such casualty.
c) If any such fire or other casualty which renders the whole
or any portion of the Leased Premises untenantable occurs during
the final Lease Year of the Initial Term or of any Option Period,
Tenant may, within thirty (30) days after the date of such
casualty, give written notice to Landlord of Tenant's intention
to extend the Term pursuant to the next applicable Renewal Option
provided for in Section 3 of this Lease, in which event Landlord
shall be obligated to repair and/or restore the Leased Premises
as provided in this Section 14. In the event Tenant shall not so
elect to extend the Term, both Landlord and Tenant shall each
have the option to terminate this Lease by written notice from
the terminating party to the other party given within sixty (60)
days after the date of such casualty and, in such event, this
Lease shall terminate as of the date of such casualty.
d) If this Lease is terminated pursuant to this Section 14,
Landlord shall promptly pay to Tenant any prepaid but unearned
Basic Rent and other charges paid by Tenant, or Tenant shall
promptly pay to Landlord any Basic Rent and other charges earned
and unpaid, and Landlord shall have the right to (i) the amount
of all insurance proceeds and
(ii) the amount of the difference between the insurance proceeds
and the full replacement cost of the Leased Premises.
e) If, during the Term, a fire or other casualty shall damage
or destroy any portion of the Leased Premises but shall not
render the Leased Premises untenantable, in Tenant's reasonable
judgment, Tenant shall repair all such damage or destruction
except to the extent fire or other casualty damages or destroys
any structural elements of the Leased Premises (as set forth in
Section 10(b)). Landlord shall repair any damage or destruction
to the structural elements of the Leased Premises (as set forth
in Section 10(b)) within sixty (60) days from the date of such
casualty; Tenant shall provide Landlord with (i) all insurance
proceeds associated with such damage or destruction of the
structural elements of the Leased Premises and (ii) the amount of
the difference between the insurance proceeds and the cost to
repair any such damage or destruction of the structural elements
of the Leased Premises.
f) If Landlord is required to repair and restore the Leased
Premises pursuant to this Section 14, the applicable provisions
of Section 2 above and the Construction Provisions shall apply
with respect to Landlord's construction work related to such
repair or restoration. However, if the nature of the damage is
such that it would be impractical to
apply some or all of the provisions of Section 2 and the
Construction Provisions to Landlord's construction work as
mutually and reasonably determined by Landlord and Tenant,
then Landlord and Tenant shall agree on an alternative
provision or provisions which shall be incorporated into a
written agreement executed by both Landlord and Tenant.
15) CONDEMNATION.
a) If the whole of the Leased Premises shall be acquired or
taken by eminent domain, condemnation or private purchase under
threat thereof or in lieu thereof, including, without limitation,
the physical occupation of the Leased Premises or any portion
thereof or the filing of eminent domain or condemnation papers by
appropriate authorities (a "Taking"), then this Lease and the
Term shall automatically cease and terminate as of the date on
which the condemning authority or private purchaser shall have
the right to possession of the Leased Premises or any portion
thereof (the "Taking Date").
b) If any part of the Leased Premises shall be so taken and
such partial Taking shall render that portion not so taken
unsuitable, as determined by Tenant in its reasonable discretion,
for the purposes for which the Leased Premises were leased, or if
any access, curb cut or other access point on or to the Leased
Premises is modified in a manner which adversely and materially
affects Tenant's business or is lost as a result of any Taking,
then Tenant shall have the right to terminate this Lease by
written notice sent to Landlord within twelve (12) months after
the Taking Date. If any part of the Leased Premises shall be so
taken and this Lease shall not be so terminated, then this Lease
shall continue in full force and effect except that the Basic
Rent and all other charges payable by Tenant shall be reduced in
the same proportion that the gross leasable area of the portion
of the Leased Premises that has been taken bears to the total
gross leasable area of the entire Leased Premises and Landlord
shall, within thirty (30) after the Taking Date, commence to make
all necessary repairs and alterations to restore the untaken
portion of the Leased Premises to as near its former condition as
practicable such that the untaken portion of the Building will be
a complete architectural unit. In its performance of such repair
and/or restoration work pursuant to this Section 15, the
applicable provisions of Section 2 above and the Construction
Provisions shall apply with respect to Landlord's construction
work related to such repair or restoration. However, if the
nature of the damage is such that it would be impractical to
apply some or all of the provisions of Section 2 and the
Construction Provisions to Landlord's construction work as
mutually and reasonably determined by Landlord and Tenant, then
Landlord and Tenant shall agree on an alternative provision or
provisions which shall be incorporated into a written agreement
executed by both Landlord and Tenant.
c) If this Lease is terminated as provided in this Section 15,
Landlord shall promptly pay to Tenant any prepaid but unearned
Basic Rent and other charges, or Tenant shall promptly pay to
Landlord any Basic Rent and other charges earned and unpaid.
d) In the event of a Taking, whether permanent or temporary, of
any pylon or monument sign (as contemplated by Section 8(b)
above) on which Tenant has installed identification panels,
Tenant shall provide a substitute site (reasonably acceptable to
Tenant) therefor, within a reasonable period of time after such
Taking. If Landlord shall receive compensation from the
condemning authority for such Taking of any such sign, Landlord
shall pay said compensation to Tenant within fifteen (15) days
after Landlord's receipt thereof.
e) In the event of a Taking as described in this Section 15,
Tenant shall be entitled to claim compensation from the
condemning authority for (i) the value of its leasehold estate in
the Leased Premises and (ii) damages occurring by reason of the
Taking, including but not limited to loss of good will or future
profits or in respect of Tenant's Personal Property, the cost or
expense for the repair and removal of such Personal Property,
moving or relocation expenses, and any other items to which
Tenant may be entitled under applicable law.
16) TENANT'S DEFAULT:
a) The following shall constitute an event of default by
Tenant hereunder (an "Event of Tenant Default");
i) Tenant's failure to make any payment of money required by
this Lease (including, without limitation, Basic Rent, Percentage
Rent, or Real Estate Taxes) (subject to Tenant's right of good
faith contest), within ten (10) days after Tenant's receipt of
written notice from Landlord to Tenant that same is overdue;
Or
ii) Tenant's failure to observe or perform any other material
provision of this Lease within thirty (30) days after Tenant's
receipt of written notice from Landlord to Tenant specifying such
default and demanding that the same be cured; provided that if
such default cannot with due diligence be wholly cured within
such thirty (30) day period, Tenant shall have such longer period
as is reasonably necessary to cure the default, so long as Tenant
proceeds promptly to commence the cure of same within such thirty
(30) day period and diligently prosecutes the cure to completion.
b) Upon the occurrence of an Event of Tenant Default, at
Landlord's option, in addition to any and all other
remedies which it may have at law and/or in equity (except
as provided below), and without its actions being deemed an
election of remedies or a cure of Tenant's default,
Landlord may (a) terminate this Lease or (b) re-enter the
Leased Premises by judicial proceeding, expel Tenant and
remove all property from the Leased Premises, and relet the
Leased Premises at the best possible rent obtainable and
receive the rent therefrom. In the event Landlord relets
the Leased Premises, all rentals received by Landlord shall
be applied, first, to the payment of any indebtedness other
than Basic Rent and other charges due hereunder from Tenant
to Landlord; second, to the payment of any costs and
expenses of such reletting, excluding tenant upfit costs;
third, to the payment of Basic Rent and other charges due
and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of any future Basic Rent
and/or other charges due and unpaid hereunder. Tenant shall
remain liable to Landlord for the deficiency, if any,
between the Basic Rent and all other charges (except for
Percentage Rent) payable by Tenant pursuant to this Lease
and the rent and all other charges payable by the new tenant
pursuant to the new lease obtained by Landlord on reletting.
In the event this Lease shall be terminated as provided
above, Landlord, its agents, servants or representatives may
immediately or at any time thereafter peaceably re-enter and
resume possession of the Leased Premises and remove all
persons and property therefrom, by summary dispossession
proceedings. The various rights and remedies reserved to
Landlord herein are cumulative, and Landlord may pursue any
and all such rights and remedies, whether at the same time
or otherwise (to the extent not inconsistent with specific
provisions of this Lease); provided that Landlord shall have
the duty in any instance to mitigate its damages with
respect to any Event of Tenant Default. Notwithstanding
anything herein to the contrary, (i) Landlord expressly
waives its right to forcibly dispossess Tenant from the
Leased Premises, whether peaceably or otherwise, without
judicial process, such that Landlord shall not be entitled
to any "commercial lockout" or any other provisions of
applicable law which permit landlords to dispossess tenants
from commercial properties without the benefit of judicial
review and (ii) Landlord shall in no event have any right to
accelerate the Basic Rent or any other charges payable by
Tenant hereunder.
17) LANDLORD'S DEFAULT.
a) The following shall constitute an event of default by
Landlord hereunder (an "Event of Landlord Default"):
(i) Landlord's failure to make any payments of money due Tenant
or any third party, including but not limited to the payment of
the brokerage commissions pursuant to Section 28(s) below, within
ten (10) days after the receipt of written notice from Tenant
that same is overdue; or
(ii) Landlord's failure to perform any nonmonetary obligation of
Landlord hereunder within thirty (30) days after receipt of
written notice from Tenant to Landlord specifying such default
and demanding that the same be cured; provided that, if such
default cannot with due diligence be wholly cured within such
thirty (30) day period, Landlord shall have such longer period as
may be reasonably necessary to cure the default, so long as
Landlord proceeds promptly to commence the cure of same within
such thirty (30) day period and diligently prosecutes the cure to
completion and provided further that in the case of an emergency,
Tenant shall be required to give only such notice as is
reasonable under the circumstances.
b) Upon the occurrence of an Event of Landlord Default, at
Tenant's option, in addition to any and all other remedies
which it may have at law and/or in equity, and
without its actions being deemed an election of remedies or
a cure of Landlord's default, Tenant may do all or any of
the following:
(i) pay or perform such obligations and offset Tenant's actual
cost of performance, including any and all transaction costs and
attorneys' fees, against the Basic Rent, Percentage Rent, and any
and all other amounts and charges due Landlord hereunder; or
(ii) withhold Basic Rent, Percentage Rent, and any other payments
due to Landlord under this Lease until such Event of Landlord
Default, transaction costs and attorneys' fees specified in
subsection (i) above, is cured by Landlord; or
(iii) terminate this Lease and/or ▇▇▇ for damages, including
transaction costs and attorneys' fees specified in subsection (i)
above.
With respect to a breach by Landlord of the provisions
of Section 18 below, Tenant shall be entitled to any
remedies provided therein, in addition to those remedies
provided herein.
The various rights and remedies reserved to Tenant
herein are cumulative, and Tenant may pursue any and all
rights and remedies, whether at the same time or otherwise.
Notwithstanding the foregoing, a delay by Tenant in
exercising its cure rights or other remedies hereunder shall
not be deemed a Force Majeure Event for purposes of
extending the date(s) established for performance by
Landlord.
c) Any offset made by Tenant against Basic Rent or any other
charges otherwise due by Tenant hereunder shall be without
liability to Tenant, shall not constitute a default on
behalf of Tenant and shall not affect any other rights or
remedies Tenant may have against Landlord for failure to
comply with the provisions herein.
18) NON-COMPETITION.
a) Neither Landlord nor any stockholder, member, partner,
beneficiary, successor, assign, personal representative,
heir, subsidiary or affiliate of Landlord, nor any person(s)
or entity(ies) having a direct or indirect interest in
Landlord, shall, for as long as this Lease remains in force
and effect, either directly or indirectly, own, occupy or
operate, or sell, lease or otherwise transfer to any person
or entity, or permit any person or entity to occupy, any
land, building, premises or space, whether presently owned
or hereafter acquired, located within two (2) miles of the
Leased Premises for the purpose of (i) conducting thereon a
business similar to that being conducted by Tenant on the
Leased Premises or (ii) the sales, display or rental of
automotive parts, accessories, supplies and/or maintenance
items. In addition, neither Landlord nor any stockholder,
member, partner, beneficiary, successor, assign, personal
representative, heir, subsidiary or affiliate of Landlord,
nor any person(s) or entity(ies) having a direct or indirect
interest in Landlord, shall lease, sell or otherwise
transfer or convey any such premises adjacent to and/or
contiguous with the Leased Premises without imposing thereon
a restriction to
secure compliance herewith, or permit any tenant or occupant
of any such premises or any part thereof to sublet or assign
in any manner, directly or indirectly, any part thereof to
any person, firm, corporation or other entity engaged in any
such business described above, without the prior written
consent of Tenant, which consent may be withheld by Tenant
in Tenant's sole discretion.
b) Tenant shall, in the event that there is a breach of any
of the provisions of this Section 18, have the following
rights and remedies, none of which shall be exclusive of the
other remedies or any other remedy otherwise available to
Tenant:
i) Tenant may institute proceedings to enjoin the violation;
ii) If such breach continues for a period of thirty (30) days
after written notice thereof shall have been given by Tenant to
Landlord, Tenant may, at any time thereafter, elect to terminate
this Lease and, on such election, this Lease shall, on the date
stated in the notice of such election, be terminated, and Tenant
shall be released and discharged of and from any and all further
liability hereunder;
iii) As long as any such breach continues, Tenant's only
obligation with respect to the payment of rent or any other
charge payable under this Lease shall be the payment of
Percentage Rent only, in accordance with the terms and conditions
of Section 5(b) above, with no payment of Basic Rent or any other
charge payable under this Lease.
iv) Landlord shall protect, defend, indemnify and hold Tenant
harmless from all losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys'
fees and court costs) sustained or incurred in connection with
any proceedings instituted by Tenant as a result of any such
breach.
19) ENVIRONMENTAL:
a) As used herein, the term "Hazardous Substance" includes
petroleum, natural or synthetic gas products and any
hazardous, toxic or dangerous waste, pollutant, contaminant,
substance or material defined as such in, or for the
purposes of, the "Environmental Laws" (as hereinafter
defined). For the purposes of this Lease, the term
"Environmental Laws" means any environmental, health or
safety law, rule, regulation, ordinance, order or decree,
including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended, the Resource Conservation and Recovery Act, as
amended, any "Superfund" or "Super Lien" law or any other
federal, state, county or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating
to or imposing liability or standards of conduct concerning
any petroleum, natural or synthetic gas products and/or
hazardous, toxic or dangerous waste pollutant or
contaminant, substance or material as may now or any time
hereinafter be in effect.
Landlord represents, warrants and covenants that:
(i) to the best of Landlord's knowledge and belief, the Leased
Premises is in compliance with all Environmental Laws and no
Hazardous Substances have been released or threatened to be
released upon, in, at, around or under the Land or off-site
locations within one (1) mile of the Land that are owned,
operated or controlled by Landlord or any party related to
Landlord to any degree, except as disclosed in the Phase I Report
(as defined in Section 19(c));
(ii) to the best of Landlord's knowledge and belief, there is not
now, pending or threatened, any action, suit, investigation or
proceeding against Landlord or the Land, or against any other
property relating to the Land, seeking to enforce a right or
remedy under common law or under any of the Environmental Laws;
(iii) Landlord has, to the best of Landlord's knowledge and
belief, complied with and will continue to comply with all
applicable Environmental Laws relating to or affecting the Leased
Premises including, without limitation, Landlord's business
operations upon or off the Leased Premises (including, without
limitation, all Environmental Laws with respect to the
registration, testing and upgrading of underground or above
ground storage tanks);
(iv) Landlord has not, to the best of Landlord's knowledge and
belief, and will not engage in any activities that constitute
spilling, leaking, emitting, discharging, injecting, dumping or
disposing of any Hazardous Substances into the environment on,
above, below or surrounding the Leased Premises;
(v) to the best of Landlord's knowledge and belief, there is no
asbestos-containing material on the Leased Premises;
(vi) Landlord has, to the best of Landlord's knowledge and
belief, obtained, and will at all times continue to obtain and
maintain, all required environmental licenses and permits under
the Environmental Laws that are necessary for the ownership of
the Leased Premises (the "Environmental Permits"), and Landlord
has, to the best of Landlord's knowledge and belief, complied
with and will comply with all other governmental or regulatory
requirements necessary to comply with the Environmental Laws.
Landlord is, to the best of Landlord's knowledge and belief, in
full compliance with the terms and provisions of the
Environmental Permits and will continue to comply with the terms
and provisions of the Environmental Permits; and
(vii) to the best of Landlord's knowledge and belief, there
are no Hazardous Substances located on, in, at or under the
Leased Premises that exceed action levels.
Landlord agrees to indemnify and hold Tenant harmless from
any and all claims, damages, fines, judgments, penalties, costs,
liabilities or losses (including, without
limitation, any and all sums paid for settlement of claims,
attorneys' fees, consultants' fees, and expert fees) arising at
any time from or in connection with (i) the presence or release,
or suspected presence or release, of Hazardous Substances or
asbestos-containing materials at, in or on the Leased Premises
unless the Hazardous Substances or asbestos-containing materials
are present solely as a result of the breach by Tenant of the
provisions of Section 19(d) below or (ii) the violation of any
Environmental Laws unless such violation is due solely as a
result of the breach by Tenant of the provisions of Section 19(d)
below. Without limiting the foregoing, this indemnification (i)
shall include any and all costs incurred due to any investigation
of the Leased Premises or any cleanup, removal, or restoration
mandated by any governmental authorities and (ii) shall
specifically include any and all costs due to Hazardous
Substances that flow, diffuse, migrate, or percolate into, onto,
or under the Leased Premises.
c) Tenant's obligations under this Lease are conditioned upon
(i) the Land being in compliance with all Environmental Laws and
(ii) the Land being free from any and all Hazardous Substances.
In order to determine preliminarily such compliance with
Environmental Laws and the lack of Hazardous Substances, Landlord
shall within thirty (30) days of the date of this Lease obtain
and provide Tenant with a copy of a Phase I environmental report
(the "Phase I Report") to be prepared at Landlord's sole cost and
expense. In the event the Phase I Report reflects (i) any
potential non-compliance with Environmental Laws and/or (ii) the
potential existence of Hazardous Substances on or under the Land,
and the Phase I Report recommends further study, Landlord shall,
within thirty (30) days of the date of the Phase I Report, order
a Phase II environmental report (the "Phase II Report" and,
together with the Phase I Report, the "Environmental Reports") to
be prepared at its sole cost and expense. The Environmental
Reports shall be prepared by a qualified environmental firm
reasonably acceptable to Tenant and shall be addressed and
certified to both Landlord and Tenant such that both Landlord and
Tenant shall be entitled to rely thereon. In the event the
Environmental Reports reflect that (i) the Land is not in
compliance with the Environmental Laws and/or (ii) the Land is
not free from any and all Hazardous Substances, this Lease shall
be null and void on the later of the thirtieth (30th) day after
Tenant receives a copy of the most recent of the Environmental
Reports or the thirtieth (30th day) after the Commencement Date
unless (i) Tenant expressly waives, in writing, such
nullification or (ii) Landlord elects, by written notice given to
Tenant prior to the expiration of such thirty (30) day period, to
have the non-compliance condition and/or the presence of
Hazardous Substances remediated. If Landlord elects to undertake
any such remediation, Landlord shall diligently perform such
remediation and this Lease shall remain in effect for a period of
one hundred and twenty (120) days subsequent to the thirty (30)
day period described in the previous sentence (the "Remediation
Period") to permit such remediation, but if such remediation has
not been completed by the end of the Remediation Period, this
Lease may be terminated by Tenant upon written notice to
Landlord.
d) Tenant covenants that, during the period of its possession
of the Leased Premises, Tenant and its employees shall comply
with all Environmental Laws that are applicable to Tenant's use
of the Leased Premises. Tenant agrees to indemnify and hold
Landlord harmless from any and all claims, damages, fines,
judgments, penalties, costs, liabilities,
or losses (including, without limitation, any and all
sums paid for settlement of claims, attorneys' fees,
consultants' fees, and expert fees) arising at any
time solely as a result of the violation by Tenant
and/or its employees of the foregoing covenant.
Without limitation of the foregoing, this
indemnification shall include any and all costs
incurred by Landlord due to any investigation of the
Leased Premises or any cleanup, removal, or
restoration mandated by any governmental authorities.
20) SUBORDINATION; ESTOPPELS.
a) Simultaneously with the execution hereof, Landlord shall
deliver to Tenant, with regard to any and all "Ground Leases" (as
hereinafter defined) and any and all "Mortgages" (as hereinafter
defined) encumbering the Leased Premises as of the Commencement
Date of this Lease, a subordination, non-disturbance and
attornment agreement in the form attached hereto as Exhibit "C",
executed by the lessor under any such Ground Lease ("Ground
Lessor") or the holder of such Mortgage ("Mortgagee"), as
applicable. Tenant shall have no obligation to pay Basic Rent or
other charges hereunder until such subordination, non-disturbance
and attornment agreement(s) are delivered to Tenant, whereupon
Tenant shall pay all accrued Basic Rent and other charges due
hereunder at the time of such delivery. In addition, throughout
the Term, Landlord shall deliver to Tenant a subordination, non-
disturbance and attomment agreement in the form attached hereto
as Exhibit "C" executed by any Ground Lessor or Mortgagee (as
applicable) with regard to all future Ground Leases and Mortgages
and with regard to all renewals, modifications, replacements and
extensions of such Ground Leases or Mortgages. Upon Tenant's
receipt of the executed subordination, non-disturbance and
attornment agreement, this Lease shall be subordinate to the
corresponding Ground Lease or Mortgage. Landlord shall cause any
present or future Mortgagee to deliver a subordination, non-
disturbance and attornment agreement in accordance with this
Section 20(a) at or prior to the time which the lien of the
Mortgage is filed against record title to the Leased Premises. As
used in this Lease, the term "Mortgage" shall mean any mortgage,
deed to secure debt, deed of trust, trust deed or other
collateral conveyance of, or lien or encumbrance against, all or
any portion of the Leased Premises, and the term "Ground Lease"
shall mean any ground lease or master lease affecting all or any
portion of the Leased Premises.
b) Tenant shall, at all reasonable times, upon at least thirty
(30) days' prior written notice from Landlord, provide Landlord
with an estoppel certificate in the form attached hereto as
Exhibit "E."
c) No Personal Property of Tenant shall be subject to mortgage
liens of Landlord.
21) TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN. All of
Tenant's Personal Property, except that which is permanently
attached, and inventory shall be and remain the personal
property of Tenant and shall be removable by Tenant any time
prior to the expiration or earlier termination of this Lease.
Notwithstanding anything contained herein to the contrary,
Landlord expressly waives its statutory or common law
landlord's liens (as same may be enacted or may exist from
time to time) and any and all rights granted under any
present or future laws to levy or distrain for rent (whether
in arrears or in advance) against the Personal
Property and further agrees to execute any reasonable
instruments evidencing such waiver, at any time or times
hereafter upon Tenant's request.
22) TENANT'S FINANCING. Notwithstanding any other provisions of
this Lease, Tenant may, without Landlord's consent, from time to
time, secure financing or general credit lines and grant the
lenders thereof, as security therefor, (i) a security interest in
the Personal Property, (ii) the right to enter the Leased
Premises to realize upon any Personal Property so pledged, and/or
(iii) a collateral assignment of Tenant's leasehold interest in
the Leased Premises, with rights of reassignment; provided,
however, such collateral assignment may be made solely for the
purpose of securing Tenant's indebtedness.
23) COMPLIANCE WITH APPLICABLE LAWS AND PERMITTED ENCUMBRANCES.
During the Term, Landlord and Tenant shall comply with (i) all
lawful requirements of the local, county and state health boards,
police and fire departments, municipal and state authorities and
any other governmental authorities with jurisdiction over the
Leased Premises and (ii) any covenants, restrictions and
requirements contained in the Permitted Encumbrances, respecting
Tenant's use and occupancy of the Leased Premises.
24) NOTICES. Notices under this Lease shall be in writing and
shall be deemed properly served and received: (i) two (2)
business days after being deposited in the United States mail, as
certified or registered mail, return receipt requested, bearing
adequate postage, (ii) one (1) business day after being deposited
with a reputable overnight delivery carrier (e.g. Federal
Express, Airborne, UPS, Express Mail) for guaranteed next day
delivery with a request that the addressee sign a receipt
evidencing delivery or (iii) upon receipt if personally
delivered. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was
given shall be deemed to be receipt of the notice as of the date
of such rejection, refusal or inability to deliver. Notices shall
be addressed as follows:
Blue ▇▇▇▇ Partners, LLC ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Advance Stores Company, Incorporated ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Department
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Real Estate Department
Advance Stores Company, Incorporated ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
or to any other address furnished in writing by any of the
foregoing. However, any change of address furnished shall
comply with the notice requirements of this Section 24 and
shall include a complete outline of all current addresses to
be used for all parties.
25) NO LIENS. Should any lien of any nature be filed against the
Leased Premises, the party on account of whose actions such lien
has been filed shall, within thirty (30) days after receipt of
written notice of such lien, cause such lien to be removed, or
otherwise protected against execution during good faith contest,
by substitution of collateral, posting a bond therefor, escrowing
of adequate funds to cover the claim and related transaction
costs or such other method as may be permissible under applicable
title insurance regulations and reasonably acceptable to the
other party hereto.
26) COVENANT OF QUIET ENJOYMENT. Landlord covenants, warrants
and represents that Tenant, upon paying the rent herein reserved
and performing the covenants and agreements hereof, shall
peaceably and quietly have, hold and enjoy the Leased Premises
during the Term. No third party has the right to prohibit
Tenant's tenancy hereunder, to prohibit Tenant or its employees,
customers and/or invitees from using the Leased Premises in
accordance with the terms of this Lease or to consent to or
approve (excepting governmental agencies) any feature of the
Leased Premises or Tenant's signage. There shall be no
restrictions of any kind during the Term that could prevent,
limit or restrict the use of the Leased Premises in accordance
with the terms of this Lease, including, without limitation, (x)
the operation of a retailer of automotive parts, accessories,
supplies and/or maintenance items and (y) truck deliveries to the
Leased Premises during Tenant's business hours. No signboards or
other construction which obstructs the view of the Leased
Premises from adjoining public streets shall be erected during
the Term upon any property owned, leased, operated or otherwise
controlled by Landlord or any stockholder, member, partner,
beneficiary, successor, assign, personal representative, heir,
subsidiary or affiliate of Landlord, or any person(s) or
entity(ies) having a direct or indirect interest in Landlord.
Notwithstanding the foregoing, in the event that an intentional
or negligent act or omission or violation of any applicable law,
rule or regulation by Tenant, or any assignee (to the extent
Tenant remains liable under this Lease subsequent to an
assignment pursuant to Section 9) or subtenant of Tenant results
in the limitation or restriction of its use of the Leased
Premises, neither Tenant nor any such assignee or subtenant shall
be able to claim such limitation or restriction to be an Event of
Landlord Default hereunder.
27) SURRENDER, HOLDING OVER.
a) Upon expiration of this Lease, or its earlier termination,
Tenant will surrender possession of the Leased Premises (except
for any and all of Tenant's Personal Property removed from the
Leased Premises) to Landlord in broom clean condition, except for
ordinary wear and tear and loss by fire or other casualty or by a
"Taking" (as hereinafter defined).
b) If Tenant shall remain in possession of the Leased Premises
or any part thereof after expiration of the Term without an
agreement in writing between Landlord and Tenant with respect
thereto, Tenant shall be deemed a tenant from month to month upon
the same terms and conditions as contained in this Lease.
Notwithstanding the foregoing, Tenant shall pay Landlord, as
rental on the Leased Premises for any period that Tenant
remains in possession of the Leased Premises after
expiration of the Term, an amount equal to one hundred ten
percent (110%) of the Basic Rent which Tenant would
otherwise have paid if the Term had not expired for each
month or any portion thereof in which Tenant occupies the
Leased Premises after the expiration of the Term.
28) MISCELLANEOUS PROVISIONS.
a) Time of Essence. Time is of the essence with respect to any
time periods or dates referenced in this Lease with respect to
both Landlord and Tenant.
b) Confidentiality. Except for documents that are or will be a
matter of public record or information which the other party has
agreed to in writing may be disclosed, the parties hereto,
including, but not limited to, their heirs, successors, assigns
and legal representatives, agree to use their best reasonable
efforts to maintain the confidentiality of, and shall not
disclose to any third party (except to an accountant, attorney,
potential purchaser, tax preparer for tax return preparation or
lender to the extent such person agrees to be bound by this
confidentiality provision), any terms of this Lease or any
correspondence, documents and/or things relating to this Lease,
unless such terms, correspondence, documents and/or things are
legally required to be disclosed. This confidentiality agreement
extends to any developers, bankers, lawyers, accountants,
employees, agents or any other persons acting on behalf of the
parties hereto. Notwithstanding anything contained herein to the
contrary, any breach of this confidentiality agreement shall
constitute an automatic Event of Default without notice or cure
provided, for which either party may recover damages as their
sole remedy and for which neither party can terminate this Lease.
c) Identity of Interest. Nothing contained in this Lease shall
be construed to make Landlord and Tenant partners or joint
venturers or to render either party liable for the debts or the
obligations of the other. The only relationship created by this
Lease between the parties is that of landlord and tenant.
d) Third Party Beneficiaries. Except as herein specifically
provided, no person, subtenant, customer, employee or invitee or
any other third party shall be deemed to be a third party
beneficiary of any of the provisions herein.
e) Partial Invalidity. If any section, paragraph, subparagraph,
sentence, clause or phrase of this Lease shall be declared or
judged invalid or unconstitutional, such declaration or
adjudication shall not affect the other sections, paragraphs,
subparagraphs, sentences, clauses or phrases of this Lease, all
of which shall remain in full force and effect.
1) Memorandum of Lease; Declaration. Simultaneously with
the execution of this Lease, Landlord shall (i) cause to be
prepared and executed, at its expense, a short form or
memorandum of this Lease in the form attached hereto as
Exhibit "F" (the "Lease Memorandum") and (ii) submit same to
Tenant. In the event a Lease Memorandum cannot be recorded
in the State or locality in which the Leased Premises is
located due to
legal or financial considerations, as determined by Tenant in its
sole discretion, after consultation with Landlord concerning the
requirements of said State or locality, Landlord shall (i) cause
to be prepared and executed, at its expense, a Declaration of
Covenants, Conditions and Restrictions encumbering the Leased
Premises and any other real property owned, leased, operated or
otherwise controlled by Landlord and/or related entities and
located adjacent to or within two (2) miles of the Leased
Premises, the form of which Declaration is attached hereto as
Exhibit "G" (the "Declaration") and (ii) submit same to Tenant.
Landlord shall record, at Tenant's expense, such Lease Memorandum
or Declaration, as applicable. The provisions of this Lease shall
control with regard to any omissions from, or provisions hereof
which may be in conflict with, the Lease Memorandum or the
Declaration. Notwithstanding the foregoing, this Lease shall not
be recorded in any office or place of public record, and if
either party shall record this Lease or cause or permit the same
to be recorded, such act may be treated as a breach of this Lease
by such recording party. Upon the expiration or earlier
termination of this Lease, the parties hereto shall execute a
mutually acceptable agreement terminating the Lease Memorandum or
the Declaration, as applicable.
g) Notices Affecting the Leased Premises. Landlord shall
promptly forward to Tenant any notice or other communication
affecting the Leased Premises received by Landlord from any owner
of property adjoining, adjacent or nearby to the Leased Premises
or from any municipal or governmental authority, in connection
with any hearing or other administrative procedure relating to
the use or occupancy of the Leased Premises or any such
neighboring property.
h) Headings; Gender. The section headings are for convenience
and are not a part of this Lease. The masculine, feminine or
neuter gender and the singular or plural number shall be deemed
to include the others whenever the context so requires or
indicates.
i) No Waiver. The failure of either party to insist in any one
or more instances upon a strict performance of any covenant of
this Lease or to exercise any option or right herein contained
shall not be construed as a waiver or relinquishment for the
future enforcement of such covenant, right or option, but the
same shall remain in full force and effect, unless the contrary
is expressed in writing by such party.
j) Force Majeure. Except as otherwise specifically contemplated
in this Lease, in the event that Landlord or Tenant shall be
delayed or hindered in, or prevented from, the performance of any
act required hereunder by reason of strikes, lockouts, labor
troubles, inability to procure materials, delay by the other
party, failure of power or unavailability of utilities, riots,
insurrection, war, terrorism or other reason of a like nature not
the fault of such party or not within its control (each, a "Force
Majeure Event"), then performance of such act shall be excused
for the period of delay, and the period for the performance of
any such act shall be extended for a period equivalent to the
period of such delay; provided, however, the party claiming a
delay by reason of a Force Majeure Event shall notify the other
party within five (5) business days following the onset of the
Force Majeure Event.
k) Pre-existing Conditions. Nothing contained in this Lease shall
be construed to impose any responsibility upon Tenant with regard
to any loss, injury or other claim arising as a result of any
condition that existed on the Leased Premises at the time of
Tenant's taking possession thereof.
1) No Offer. Tenant's delivery to a prospective landlord of this
form of Lease shall not be deemed an offer to lease even though
such form may have been completed in every respect.
m) Choice of Law. This Lease shall be construed in accordance
with and governed by the laws of the State.
n) Binding Effect. This Lease shall inure to the benefit of and
be binding upon Landlord and Tenant and their respective heirs,
executors, legal representatives, successors and assigns.
o) No Construction Against Drafting Party. This Lease has been
prepared by Tenant and its professional advisors and reviewed by
Landlord and its professional advisors. Tenant, Landlord and
their separate advisors believe that this Lease is the product of
all of their efforts, that it expresses their agreement, and that
it should not be interpreted in favor of either Tenant or
Landlord or against either Tenant or Landlord merely because of
their efforts in preparing it.
p) Entire Agreement; Amendment. This Lease and the attached
exhibits constitute the entire agreement between Landlord and
Tenant with respect to the Leased Premises, and all negotiations,
considerations, representations and understandings between
Landlord and Tenant prior to the execution of this Lease are
incorporated herein. Neither this Lease nor any of its provisions
nor any of the documents creating the Permitted Encumbrances set
forth in "Exhibit H" may be amended, modified, waived, discharged
or terminated except by an instrument in writing signed by the
parties hereto.
q) Trademarks and Trade Names. All trademarks, trade names,
service marks, signs and all other marks of identification used
by Tenant in its business shall at all times remain the exclusive
property of Tenant, and Landlord shall have no right, interest
in, or title to any of Tenant's trademarks, trade names, service
marks, signs or other marks of identification.
r) Holidays. If the day on which any rent or any other payment
due hereunder is payable falls on a Saturday or Sunday or on a
legal holiday, it shall be payable on the following business day.
s) Brokers. Tenant and Landlord warrant each to the other that
it has had no dealings with any broker or agent in connection
with this lease, and each party covenants to pay, hold harmless
and indemnify the other from and against any and all costs,
expenses or liability for any compensation, commissions and
charges claimed by any broker or agent with respect to this lease
or the negotiation thereof.
t) Counterparts. This Lease may be executed in more than one
counterpart, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
u) Exhibits. The following Exhibits are attached hereto and
incorporated herein by this reference:
EXHIBIT "A" - Survey of Land
EXHIBIT "B" - Construction Provisions
EXHIBIT "C" - Subordination, Non-Disturbance and Attomment Agreement
EXHIBIT "D" - Commencement Agreement
EXHIBIT "E" - Estoppel Certificate
EXHIBIT "F" - Lease Memorandum
EXHIBIT "G" - Declaration
EXHIBIT "H" - Permitted Encumbrances
EXHIBIT "I-1" - Exterior
Sign EXHIBIT "I-2" -Monument Sign
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed effective as of the day and year first
written above.
LANDLORD:
BLUE ▇▇▇▇ PARTNERS,
LLC, an Ohio limited
liability company
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Member
Date: January 13, 2004
TENANT:
ADVANCE STORES COMPANY,
INCORPORATED ,a Virginia
corporation
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
Name ▇▇▇▇▇▇ ▇ ▇▇▇▇
Its: President
Date: 1-16-04
STATE OF OHIO )
SS)
COUNTY OF ▇▇▇▇▇▇▇▇ )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ personally known to
me to be the Member of Blue ▇▇▇▇ Partners, LLC an Ohio limited liability
company, and personally known to me to be the same person whose names are
subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged under oath that as such Member he signed and
delivered the said instrument pursuant to authority duly given to him by
said limited liability company.
Given under my hand and seal this 13 day of January 2004.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
My Commission Expires 10-14-2008
[Notary Seal]
COMMONWEALTH OF VIRGINIA )
SS)
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that ▇▇▇▇▇▇ ▇ ▇▇▇▇ personally known to
me to be the Member of Advance Stores Company Incorporate a Virginia
corporation, and personally known to me to be the same person whose name
are subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged under oath that as such Member he signed and
delivered the said instrument pursuant to authority duly given to him by
said limited liability company.
Given under my hand and seal this 16 day of January 2004.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
My Commission Expires February 23, 2007.