ASSIGNMENT AND ASSUMPTION OF LEASE
Brownsville, 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 AEI INCOME &
GROWTH FUND
25 LLC, a Delaware limited liability
company
("Assignee").
RECITALS:
A.
Assignor
and Assignee are parties to that certain
Commercial Purchase
and Sale Contract
dated November 4,
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 February 7, 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 as 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.
IN
WITNESS WHEREOF, Assignor and Assignee have executed
this Assignment effective as of the day and year first above
written.
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 16th
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 INCOME
& GROWTH FUND 25 LLC,
a Delaware limited liability
company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
its Managing Member
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 XXI, Inc., a Minnesota
corporation, the Managing Member of AEI Income & Growth Fund
25 LLC, a Delaware limited liability company, who acknowledged
the execution of the
foregoing instrument to be the voluntary
act and deed of said corporation by authority of its board
of
directors on behalf of the company.
[Seal]
/s/ Jennifer L Schriner
Print Name: Jennifer L Schriner
My Commission Expires: 01/31/2010
EXHIBIT A
Legal Description
LOT TWO (2), BLOCK (1), M-L 802 AND 48 SUBDIVISION, A
SUBDIVISION IN THE CITY OF BROWNSVILLE, CAMERON COUNTY, TEXAS,
ACCORDING TO THE MAP THEREOF RECORDED IN CABINET 1, SLOT 2501-
B MAP RECORDS OF CAMERON COUNTY, TEXAS and also known as
5825
East Ruben Torres Boulevard
LEASE AGREEMENT
THIS
LEASE AGREEMENT (this "Lease") is made as of
February 7th, 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 Highway
802,
Cameron County, Brownsville, Texas consisting of approximately
0.815 acres which is
outlined in red on a survey dated August
26, 2004, prepared by Ambiotec Group (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 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; 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 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.
(iii) Landlord has
delivered to Tenant a certified copy of
the Easement to be
recorded described in Exhibit "H" in the
form of Exhibit "H-1" attached hereto.
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 "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 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
$9,164.42 per month
Years 11-15
$10,080.86 per month
First Option Period
$10,584.90 per month
Second Option Period
$11,114.15 per month
Third Option Period
$11,669.85 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.
a) Landlord warrants and represents
that, as of the
Commencement Date and
during the Term:
i)
Landlord (1) is
a limited partnership 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 "State"), 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
"State"), 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 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
thirty-six (36) 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 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 Terra 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 133.66 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 147 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,
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(0 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
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
