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 BELL 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 1300 Wells
Fargo Place, 30 East Seventh Street, Saint Paul, Minnesota
55101
(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 65
North
University
Blvd.,
Middletown, Ohio,
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 BELL PARTNERS, LLC
By: /s/ David A Kitzmiller
Its: Authorized
Member
Date: 5-31-06
STATE OF OHIO
)
) ss.
COUNTY OF HAMILTON
)
On
this 30th day of May, 2006, before me, the undersigned, a
Notary Public in and for said State, personally appeared David
A
Kitzmiller, personally known to me to be the person who
executed
the within
instrument as the
Authorized Member
of Blue Bell
Partners, LLC, an Ohio
limited liability company , on behalf of
said Company.
/s/ Ronald Glenn Smith
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/ Robert P Johnson
Name: Robert P
Johnson
Title:
President
STATE OF MINNESOTA
)
) ss.
COUNTY OF RAMSEY )
On this ____ day of ________, 2006, before me, the undersigned,
a
Notary Public
in and for said State, personally Robert P.
Johnson, 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/ Jennifer L Schriner
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/ Robert P Johnson
Name: Robert P
Johnson
Title: President
STATE OF MINNESOTA
)
) ss.
COUNTY OF RAMSEY )
On this ____ day of ________, 2006, before me, the undersigned,
a
Notary Public
in and for said State, personally Robert P.
Johnson, 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/ Jennifer L Schriner
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 Section 22, Town 2, Range
4, City of
Middletown,
Third Ward, Butler 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 muir ci said Lot 20139
and in the cast
line of said Lot
201.58, South 14 00'12" West, 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 comer 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
10172 International Boulevard Cincinnati, Ohio 45246
Tel: 513.942.9420 Fax: 513.860.8220
In the
west line of said Lot 20158, North
25"16'57"
East, 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 Patrick S. Finn 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 :Davis Holdings, Ltd, by (Iced recorded
in
Official Record 6050, Page 1640, of the Butler County,
Ohio
Recorder's Office.
10172 International Boulevard Cincinnati, Ohio 45246
Tel: 513.942.9420 Fax: 513.860.8220
LEASE AGREEMENT
THIS
LEASE AGREEMENT (this "Lease") is made
as of January
16, 2004 (the "Commencement Date"), between
BLUE BELL 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, Butler 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, Butler 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 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 (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) an
