ASSIGNMENT AND ASSUMPTION OF LEASE
Harlingen, TX
THIS ASSIGNMENT AND
ASSUMPTION OF LEASE (this "Assignment")
is made and entered into as of the 17th day of
February,
2006, by and between MEYER-LAMPH DEVELOPMENT GROUP, LTD.,
a
Texas limited partnership ("Assignor"), and to AEI NET LEASE
INCOME &
GROWTH FUND XIX
LIMITED PARTNERSHIP, a
Minnesota
limited partnership ("Assignee").
RECITALS:
A.
Assignor
and Assignee are parties to that certain
Commercial Purchase
and Sale Contract
dated November
16,
2005, (the
"Agreement"), pursuant
to which Assignee is
acquiring from
Assignor the real property, and improvements
located on
such property, more
particularly described
on
EXHIBIT A attached
hereto and incorporated herein by this
reference (the "Premises").
B.
Pursuant
to the terms of the Agreement, Assignor
desires to sell,
assign, convey, transfer and set over to
Assignee and
Assignee desires to
assume all of
Assignor's
interest in that
certain Lease dated January 28, 2005 (the
"Lease") by and between Assignor and Advance Stores Company,
Incorporated (the
"Tenant"), as evidenced by that certain
Memorandum of
Lease dated
_____________, 2006,
which was
filed and recorded as of the date hereof in
Volume ____,
Page _____ in the Official Public Records of Cameron County,
Texas, including all rents prepaid for any period subsequent
to the date of this Assignment, subject
to the terms
and
conditions set forth below.
C.
Assignor is the
Landlord under the Lease with full
right and title to assign the Lease, and
the "Rent" (as
defined below) to Assignee as provided herein. The Lease is
in full force and effect and has not been modified or
amended. So
far as is known to Assignor, there is no
default by
Tenant under the
Lease, and no Rent
has been
waived, anticipated, discounted, compromised or released.
NOW,
THEREFORE, in consideration of the Recitals, which
are hereby made a part
hereof, for other good and valuable
consideration, the
receipt and
sufficiency of
which are
hereby acknowledged by
the parties, Assignor
and Assignee
hereby agree as follows:
1.
Assignor hereby
irrevocably and unconditionally sells,
assigns, conveys, transfers and sets over unto Assignee, its
heirs, successors and
assigns as of the date
hereof (the
"Effective Date"),
all of Assignor's right, title and
interest in,
to
and
under:
(i)
the Lease,
and (ii) any and all
rents prepaid as
of the
Effective Date,
held by Assignor in
connection
with the
Lease (the "Rent").
2.
Except as
otherwise set forth in Paragraph 4 hereof,
Assignee hereby assumes and shall be liable for any and
all
liabilities, claims,
obligations,
losses and expenses,
including reasonable
attorneys' fees arising in connection
with the Lease, which are actually incurred, and which arise
by virtue of acts or
omissions occurring thereunder on or
after the Effective Date. Assignor shall indemnify and hold
Assignee harmless
from any and all liabilities, claims,
obligations, losses
and expenses, including reasonable
attorneys' fees
arising in connection with the Lease which
are actually incurred, and which arise by virtue of acts
or
omissions occurring thereunder, prior to the Effective Date.
Except as otherwise set forth in Paragraph 4 hereof,
Assignee shall indemnify and hold Assignor harmless from any
and all liabilities, claims, obligations, loss and expenses,
including reasonable
attorneys' fees, arising in connection
with the Lease or as a result of Assignee's
failure to
fulfill the landlord's duties and obligations accruing under
the Lease on or after the Effective Date. Assignee shall be
entitled to receive
all income arising from the Lease from
and after said Effective Date. Assignor shall be entitled to
receive all
income accruing from
the Lease prior
to the
Effective Date.
In the event
that Assignor is
paid any
rents after the Effective Date, Assignor agrees to pay such
to Assignee as soon as reasonably practicable after the date
of receipt by Assignor.
3.
Assignor shall
direct the Tenant and any successor
tenant under the Lease
to pay to Assignee the Rent and all
other monetary
obligations due or to become due under the
Lease for the period beginning on the Effective Date.
4.
Notwithstanding
anything contained herein or implied
hereby to the contrary, Assignor shall remain liable for the
performance of the obligations of the "Landlord" under the
Lease with respect to Landlord's obligations under Section 2
of the Lease.
5.
This Assignment
shall be governed by and construed in
accordance with the laws of the state in which the Property
is located.
6.
All rights and
obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit
of
Assignor, Assignee and the heirs, successors and assigns
of
each such party.
7.
This
Assignment may be executed in any number of
counterparts, each
of which shall be
effective only
upon
delivery and thereafter shall be deemed an original, and all
of which shall be taken to be one and the
same instrument,
for the same effect as
if all parties hereto had signed the
same signature page.
Any signature page of this Assignment
may be detached from any counterpart of
this Assignment
without impairing the legal effect of any signatures thereon
and may be attached to another counterpart of this Agreement
identical in form
hereto but having attached to it one or
more additional signature pages.
8.
Whenever the
context so requires in this Assignment,
all words used in the
singular shall be construed to have
been used in the
plural (and vice versa), each gender shall
be construed
to include any other
genders, and
the word
"person" shall be
construed to include a natural person, a
corporation, a
firm, a partnership,
a joint venture, a
trust, an estate or any other entity.
ASSIGNOR:
MEYER-LAMPH DEVELOPMENT GROUP, LTD.,
a Texas limited partnership
By: DSL
Management, L.L.C.,
a Texas limited
liability company,
its General Partner
By: /s/ Dale Meyer
Name: Dale Meyer
Its: President
STATE OF TEXAS
)
) ss.
COUNTY OF HIDALGO)
This
instrument was
acknowledged before me on the 16
day of February, 2006, by DALE MEYER, acting in his capacity
as President of DSL
Management, L.L.C., General Partner of
Meyer-Lamph
Development Group,
Ltd., A Texas Limited
Partnership, and on behalf of said Partnership.
[Notarial Seal]
/s/ Matthew L Jones
Notary Public, State
of Texas
My Commission Expires:
[SIGNATURES TO CONTINUE ON FOLLOWING PAGE]
ASSIGNEE: AEI
Net Lease Income &
Growth
Fund XIX Limited Partnership,
a
Minnesota
limited
partnership
By: AEI Fund
Management XIX,
Inc.,
a Minnesota
corporation,
its General Partner
By: /s/ Robert P Johnson
Robert P. Johnson,
its President
STATE OF MINNESOTA
)
) ss.
COUNTY OF RAMSEY
)
The foregoing was
acknowledged before me this ____ day of
February, 2006, by Robert P. Johnson, in his capacity as the
President of
AEI Fund Management XIX, Inc.,
a Minnesota
corporation, the General Partner of AEI Net Lease Income &
Growth Fund
XIX Limited Partnership, a Minnesota
limited
partnership, who acknowledged the execution of the foregoing
instrument to
be the voluntary act and deed of said
corporation by authority of its board of directors on behalf
of the company.
[Seal]
/s/ Jennifer L Shcriner
Print Name: Jennifer L Schriner
My Commission Expires:
1/31/2010
EXHIBIT A
Legal Description
BEING A 0.689 ACRE (30,024 SQ.FT.) TRACT
OF LAND MORE
OR
LESS, COMPRISED OF THE
APPROXIMATE NORTH HALF OF A 200.00
FT. WIDE CANAL BEING PORTIONS OF A 0.68
ACRE TRACT
(VOL.
1292, PG. 541, C.C.D.R.) AND A 0.0935 ACRE TRACT (VOL. 146,
PG. 837, C.C.O.R.) AND 0.063 ACRE FROM THE SOUTH PORTION
OF
LOT FIVE (5) AND ALL OF LOTS SIX (6) AND
SEVEN (7), BLOCK
EIGHT (8), WINDSOR
PLACE ADDITION, AN ADDITION TO THE CITY
OF HARLINGEN, CAMERON
COUNTY, TEXAS, AS RECORDED IN MAP OR
PLAT THEREOF
IN VOLUME 6, PAGE 21, CAMERON COUNTY MAP
RECORDS; SAID
0.689 ACRE TRACT BEING MORE PARTICULARLY
LOCATED AND DESCRIBED AS FOLLOWS;
COMMENCING AT THE A POINT ON THE WEST LINE OF A 20.00 ALLEY
SAID POINT
BEING THE NORTHEAST
CORNER OF LOT FIVE (5)
OF
SAID WINDSOR PLACE
ADDITION, THENCE ALONG THE EAST UNE OF
SAID LOT FIVE (5) AND WEST LINE OF SAID
20.00 ALLEY,
DUE
SOUTH AT 27.29 FT. FOR THE NORTHEAST CORNER
AND POINT OF
BEGINNING OF THIS TRACT;
THENCE, ALONG THE EAST LINE OF LOTS SIX (6) AND SEVEN (7) OF
SAID WINDSOR
PLACE ADDITION, SAME
BEING THE WEST LINE
OF
SAID 20.00 FT. ALLEY, DUE SOUTH, A DISTANCE OF 114.63 FT. TO
A ONE-HALF INCH IRON
ROD WITH AN ORANGE PLASTIC CAP STAMPED
"AMBIOTEC RPLS 5301'"
SET FOR THE SOUTHEAST CORNER OF LOT
SEVEN (7) AND A CORNER OF THIS TRACT;
THENCE, NORTH 70 DEG.
22 MIN. 07 SEC. EAST, A DISTANCE OF
21.23 FT. TO A ONE-HALF INCH IRON ROD WITH AN ORANGE PLASTIC
CAP STAMPED
"AMBIOTEC RPLS 5301"
SET ON THE EAST LINE
OF
SAID 20.00 ALLEY FOR
THE SOUTHWEST CORNER OF LOT EIGHT (8)
OF SAID WINDSOR PLACE ADDITION AND A CORNER OF THIS TRACT;
THENCE, SOUTH O6 DEG.
19 MIN. 28 SEC. EAST, A DISTANCE OF
99.73 FT. FOR THE SOUTHEAST CORNER OF THIS TRACT;
THENCE ALONG
THE NORTH LINE OF A 0.889 ACRE
TRACT (VOL.
6328, PG. 215, C.C.O.R.), SOUTH 75 DEG. 30
MIN. 48 SEC.
WEST, A DISTANCE OF
164.80 FT. T0 A ONE-HALF INCH IRON ROD
WITH AN ORANGE PLASTIC CAP STAMPED "AMBIOTEC RPLS 5301"
SET
ON THE EAST
RIGHT-OF-WAY LINE OF SUNSHINE STRIP (BUS. HWY.
77) (R.O.W. VARIES)
FOR THE SOUTHWEST CORNER OF THIS TRACT;
THENCE, ALONG
THE EAST RIGHT-OF-WAY
LINE OF SAID
SUNSHINE
STRIP (BUS. HWY 77),
NORTH 04 DEG. 15 MIN. 45 SEC. EAST, A
DISTANCE OF 90.00 FT.
TO A ONE-HALF INCH IRON ROD WITH AN
ORANGE PLASTIC CAP
STAMPED "AMBIOTEC RPLS 5301" SET ON THE
SOUTH LINE OF LOT SEVEN (7) FOR A CORNER OF THIS TRACT;
EXHIBIT A (cont'd)
Legal Description
THENCE, ALONG THE SOUTH LINE OF SAID LOT SEVEN (7), NORTH 70
DEG. 22 MIN. 07 SEC.
EAST, A DISTANCE OF 0.40 FT. T0 A ONE-
HALF INCH IRON ROD WITH AN ORANGE PLASTIC CAP STAMPED
"AMBIOTEC RPLS 5301" SET ON THE EAST RIGHT-
OF-WAY LINE
OF SAID SUNSHINE STRIP
(BUS. HWY. 77)
(R.O.W.
VARIES) FOR THE SOUTHWEST CORNER OF SAID LOT SEVEN (7),
FOR
A CORNER OF THIS TRACT;
THENCE, ALONG THE EAST LINE OF SAID SUNSHINE STRIP (BUS HWY.
77) AND ALONG A CURVE TO THE LEFT WITH A RADIUS OF 11,519.16
FT., AN ARC DISTANCE
OF 158.33 FT. TO AN "X" MARK SET ON A
CONCRETE SLAB FOR THE NORTHWEST CORNER OF THIS TRACT;
THENCE, LEAVING THE
EAST RIGHT-OF-WAY LINE OF SAID SUNSHINE
STRIP (BUS. HWY. 77), DUE EAST, A DISTANCE OF 120.90 FT.
TO
THE POINT OF BEGINNING
CONTAINING 0.689 ACRE (30,024 SQ.FT.) OF LAND MORE OR LESS.
LEASE AGREEMENT
THIS
LEASE AGREEMENT (this "Lease") is made
as of January
28, 2005
(the
"Commencement
Date"), between MEYER-LAMPH
DEVELOPMENT-GROUP, LTD, a Texas limited partnership
("Landlord");
and ADVANCE STORES
COMPANY, INCORPORATED, a Virginia corporation
("Tenant").
In
consideration
of their mutual covenants and other
valuable consideration, the adequacy and sufficiency of which
are
hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1) LEASED
PREMISES. Subject to and in accordance with the terms
hereof, Landlord hereby leases to Tenant, and Tenant leases
from
Landlord, the premises
situated at Business Highway 77 (a.k.a.
Sunshine Strip),
Cameron County, Harlingen, Texas consisting of
approximately 0.726
which is outlined in red on a survey dated
October 11, 2004 and
last revised December 8, 2004, prepared by
Ambiotec Civil
Engineering Group,
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
'~"), together with the improvements to be
constructed on the Land by Landlord pursuant to this Lease,
such
improvements to
consist of a building
space of approximately
7,000 square feet of
gross leasable floor area (the "Building")
and the
surrounding
parking, landscape and sidewalk areas
(including any
and all striping of such parking areas)
(collectively, the
"Other Improvements"), all as identified on
the site plan attached hereto as Exhibit
"B" Attachment 1
and
incorporated herein
by this reference (the
"Site Plan"). The
Land, the Building and the Other Improvements, together with
the
"Tenant's
Improvements" (as hereinafter defined), if any, shal1
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
al1 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;
1
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.
2
I
4)
TERM/EXTENSIONS.
a)
The
initial term of this Lease (the "Initial
Term")
shall commence on the
Commencement Date and shall terminate
on
the last day of the month in which
occurs the fifteenth
(15th) annual
anniversary of the
"Rent Commencement
Date"
(as
hereinafter
defined)')'The Rent Commencement Date shall
be
the earlier to occur of (i) the date
that is forty-five
(45)
days following the "Completion Date" (as defined in the
Construction
Provisions) or (ii) the date on which Tenant
opens for business to the public at the
Leased Premises.
Notwithstanding the
foregoing, in the event the following
conditions have
not been satisfied prior to such Rent
Commencement Date, then Tenant may, at Tenant's option,
pay
no
Basic Rent or any
other charges due under this Lease to
Landlord until
such time as such conditions have been
satisfied or waived (whereupon Tenant shall pay all accrued
Basic Rent and/or other charges due hereunder at the time of
such
satisfaction or waiver):
(i) Landlord
has delivered to
Tenant all
applicable
subordination,
non- disturbance
and attornment
agreements executed by
any and all Mortgagees
and/or
Ground Lessors with
respect to the Leased Premises in
the form attached to this Lease as Exhibit "C" and
(ii) Landlord has
delivered to Tenant, and Tenant has
approved,
those
certain easement
agreements,
declarations, covenants,
restrictions, rules,
regulations and other documents or agreements affecting
the Leased
Premises set forth in Exhibit "H" as
Permitted
Encumbrances, and
Landlord has
placed of
record and delivered a certified copy to Tenant of all
such agreements and documents.
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 Tern1, Tenant shall have the
option (each
such right referred to
herein as a
"Renewal
Option") to
renew and extend this Lease for three (3)
consecutive five (5) year periods (each such period referred
to
as an "Option Period" and collectively
as the "Option
Periods") immediately
following the Initial
Term, during
which Option
Period(s) all the
provisions, conditions
and
covenants of
this Lease shall
continue in full force
and
effect except
that "Basic Rent" (as hereinafter
defined)
payable for the Option
Period(s) shall be as set forth in
Section 5(a)
of this Lease. Each
Renewal Option shall
be
deemed exercised
automatically unless
Tenant shall give
Landlord written notice of its election not to exercise
any
such
Renewal Option at
least one hundred eighty (180) days
prior to the expiration of the Initial Term
or any then-
current Option Period, as applicable.
c)
From
and after the date on
which a Renewal Option
is
exercised, references
to the words "Term"
in this Lease
shall include the
Option Period(s) by which the Term shall
have
been extended. In the
event this Lease is canceled or
terminated, the expiration date
3
of
this Lease shall be that date on which this
Lease is
canceled or
tern1inated. The term "Lease Year" shall mean
each
successive period of
twelve (12) consecutive calendar
months,
commencing on
the anniversary of the Rent
Commencement Date,
except that the first Lease Year shall
commence on the Rent Commencement Date.
5) RENT.
a)
Basic
Rent. Commencing on the Rent Commencement Date,
during each
Lease Year, Tenant shall pay Landlord the
following monthly
sums ("Basic Rent") which shall be
payable, in advance, on the first day of each month:
Initial Term:
Years 1-10
$9,267.50 per month
Years 11-15
$10,194.25 per month
First Option Period
$10,704.00 per month
Second Option Period
$11,239.17 per month
Third
Option Period
$11,801.08 per month
If
the Rent Commencement
Date shall be a day other than the
first day of a month, the amount of Basic Rent
shall be
prorated for the balance of such month on a per diem basis,
and
the prorated Basic
Rent for such month shall be due and
payable on the Rent Commencement Date.
b)
Tenant
shall have no obligation to pay Basic Rent or
any
other charges due under this Lease to
any party other
than Landlord unless
and until Tenant has received notice of
a
change given pursuant to Section 24
below. In the
event
such
notice is given in
connection with a transfer or sale
of
Landlord's interest in
the Leased Premises
and/or this
Lease, such
notice shall not be
binding upon Tenant
until
Tenant has received
(i) a copy of the instrument assigning
or
transferring
Landlord's
interest, (ii) a letter
specifying the addresses to which rent and notices are to be
forwarded to such
assignee or transferee and (ii) a W -9
form
executed by the
assignee or transferee. The instrument
assigning or transferring Landlord's interest shall evidence
the
fact that such assignee or transferee has assumed all of
Landlord's obligations
under this Lease and
has acquired
sufficient title
to the Leased Premises to enable such
assignee or
transferee
to perform such obligations;
provided, however, this provision shall not be applicable to
any
transfer given as
security for a loan, and no transfer
shall release a prior
Landlord from any liability hereunder
that
accrued during the period of such prior Landlord's
ownership of the Leased Premises.
6) W
ARRANTIES,
a)
Landlord
warrants and represents that, as of the
Commencement Date and during the Term:
i) Landlord (1)
is a limited par1nership duly formed,
validly existing and in good standing under the law of
the State of Texas, (2) is qualified to do business
4
in and is in good
standing under the laws of the State
of Texas in which the Land is located (the
"~"), and
(3) has full right and power to execute
and perform
this Lease
and to grant the estate demised herein;
Landlord's General Partner, DSL Management, L.L.C., a
Texas limited
liability company
("General
Partner"),
who is acting as its
signatory for this Lease, is duly
authorized and
empowered to act for and on behalf of
the General
Partner, and this Lease, including its
execution by Landlord, is enforceable and binding upon
Landlord and
has been authorized by all requisite
action on behalf of the General Partner. General
Partner (i) is a limited liability company duly formed,
validly existing and in good standing under the law of
the State of Texas, (2) is qualified to do business in
and is in good standing under the laws of the State of
Texas in which the
Land is located (the "~"), and (3)
has full right and power to execute and
perform this
Lease and to grant the
estate demised herein;
General
Partner's President, who is acting as General Partner's
signatory for
this Lease is duly authorized and
empowered to act for and on behalf of General Partner.
Upon request
by Tenant, Landlord shall furnish to
Tenant (i) written evidence of Landlord's authority to
complete this
transaction
and empowering those
executing documents on Landlord's behalf to do so and
(ii) Landlord's
certificate of good
standing in
the
State;
ii) Landlord is either
currently the owner of the Land
in fee simple absolute
or will become such owner; this
Lease is and shall be a first lien on the Leased
Premises subject only to any "Mortgage" (as hereinafter
defined) or "Ground Lease" (as hereinafter defined) to
which this Lease may
be subordinated as set
forth in
Section 20
below;
and neither the "Permitted
Encumbrances" (as
hereinafter defined) nor any other
encumbrances grant any
other party the rights
to use
any parking spaces located on the Leased Premises;
iii)
Neither the
execution and delivery by
Landlord of this Lease
nor the performance by Landlord
of the terms hereof
will (x) conflict with or- violate
any other agreement or instrument or any writ, order or
decree to which Landlord is a party or by which
Landlord is bound or
(y) be precluded by or
cause a
breach of any
agreement, mortgage, contract or other
instrument or document to which Landlord is a party or
which encumbers
or otherwise adversely affects the
Leased Premises; and
iv} This
Lease
represents
the valid, binding
obligation of Landlord, enforceable against Landlord in
accordance with its terms.
b}
Landlord
warrants and
represents t11at,
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
5
Lease and the use of
the Leased Premises by Tenant in
accordance with the terms of this Lease; and the number
of parking spaces
totaling thirty-four (34) 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
(I) 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 win
conflict with
or violate any other agreement or
instrument or any writ, order or decree to which Tenant
is a party or by which Tenant is bound; and
iii) The
execution and delivery of this Lease by
Tenant has
been duly authorized by all required
corporate action, and this Lease represents the valid,
binding
obligation of
Tenant, enforceable against
Tenant in accordance with its terms.
7)
TENANT'S FURNISHINGS FIXTURES EQUIPMENT AND OTHER PERSONAL
PROPERTY. Tenant, at
its sole cost and expense, may supply and
install anywhere
in or on the Leased
Premises any
furnishings,
fixtures, equipment
and/or other personal property, including a
satellite dish and any
necessary cables or supporting equipment
(collectively, "Personal Property"), which it deems necessary
for
its use of the Leased Premises; provided,
however, that
Tenant
shall repair,
at its own expense, any damage
to the Leased
Premises occasioned
by such installation.
Landlord and
Tenant
recognize that
Tenant may commence the installation of its
Personal Property prior to the Completion Date, as defined in
the
Construction Provisions. Any such Personal Property supplied
and
installed in
the Leased Premises, except that which is
permanently attached, shall be and remain the property of
Tenant
Such delivery,
installation -and placement of Personal Property
in the Leased Premises by Tenant shall
not constitute final
acceptance or actual possession of the Leased Premises by
Tenant,
and shall not obligate
Tenant to pay Basic Rent or other charges
prior to the Rent Commencement Date set forth in Section 4(b)
of
this Lease.
It is agreed by
Landlord and Tenant that upon and
during delivery of such
6
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 haIm1ess
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 all announcement sign on the Leased Premises, the
location, size and style of which shall be in Tenant's sole
and
7
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
103.12 square feet of
exterior signage in the color(s
),
size(s) and location(s) shown on Exhibit B, Attachment II
(the
"Elevations") and Exhibit "I-1" and no less than a 108
square foot
pylon sign in the color(s), size(s) and
location(s) shown in
Exhibit "I-2" attached hereto and on
the
Site Plan is a condition precedent to
its obligations
under this Lease and, in that regard, Tenant shall apply for
all
necessary governmental
permits for its desired signage
within a reasonable period of time after
the Commencement
Date
of this Lease and shall reasonably
diligently pursue
such
application
thereafter. In the event Tenant does not
receive all
necessary governmental
permits for Tenant's
desired signage
by the date Landlord has received the
"Approvals" (as
defined in Section 3(a) of the Construction
Provisions), Tenant, at its option, may terminate this Lease
by
giving written notice
to Landlord. If local laws do not
permit the signage
that Tenant desires to erect, then Tenant
may,
at its expense, seek a sign code variance
to allow
Tenant's signage.
Landlord shall
execute any documents,
forms or applications necessary for Tenant
to obtain all
necessary zoning
approvals, variances or special exceptions
for
any and all of Tenant's signage and
shall promptly
execute all
documents required in connection therewith.
Notwithstanding anything contained herein to the contrary,
Tenant shall
be entitled, without
Landlord's consent,
but
subject to
compliance
with all applicable governmental
regulations, to
replace any and
all of its signs with
signage consistent
with Tenant's then-current prototypical
sign
plans. In the event of an assignment or subletting as a
result of which Tenant is no longer occupying any portion of
the
Leased Premises, Tenant's signs may be replaced by signs
identifying the appropriate assignee or subtenant, provided
that
the specific design of such signage shall be subject to
Landlord's consent,
which consent shall not be unreasonably
withheld, conditioned or delayed.
c)
Any
alterations made by
Tenant to the Leased Premises
shall
hereinafter be
referred to as the "Tenant's
Improvements." Except
for Tenant's Personal
Property, the
Tenant's Improvements
that are permanently attached or
affixed to the Leased Premises shall become the property
of
Landlord upon the expiration of this Lease.
9)
ASSIGNMENT AND SUBLEASING. Tenant shall have the right to
sublet, assign,
transfer, reassign
and grant concessions or
licenses (a "Transfer") in all or any part of the Leased
Premises
and any of Tenant's rights and obligations
under this
Lease,
without Landlord's
consent In the event
of such a Transfer,
Tenant shall
remain liable for all
of Tenant's
obligations to
Landlord arising
hereunder so long as this Lease is not changed,
modified or
amended in any respect by Landlord and any
transferee. Should
Tenant wish to be relieved of its obligations
hereunder upon a Transfer, Landlord's prior consent to a
Transfer
shall be required, which consent shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the
immediately
preceding sentence,
in the event any assignee hereunder or
assignee's guarantor subsequent to an assignment has a net
worth
calculated in
accordance
with generally accepted accounting
principles equal
to or greater than the
net worth of Advance
Stores Company,
8
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
9
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 HV AC as
required by Section
2(t) 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
10
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, liabilitie
