ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this
"Assignment") is made and entered into effective as of
this 22 nd day of May, 2009, by and between Bradford
Landing South LLC ("Assignor"), and AEI Net Lease Income &
Growth Fund XX Limited Partnership and AEI Income & Growth
Fund 27 LLC ("Assignee").
RECITALS:
A. Assignor and Assignee are parties to
that certain
Purchase and Sale Agreement dated February 24, 2009, as it
may have been amended (the "Agreement"), pursuant to which
Assignee is acquiring from Assignor the real property and
improvements, located on property
more particularly
described on EXHIBIT A attached hereto and
incorporated
herein by this reference (the "Property").
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 September 26,
2007,
(the "Lease"), by and between Assignor and
Staples the
Office Superstore East, Inc. (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.
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 pledged,
modified or
amended. So far as is known to Assignor,
there is no
default by Tenant under the Lease and no Rent (as defined
below) 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 which are actually incurred,
and which arise by virtue of acts or omissions
occurring
thereunder, 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
attorney's 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.
Notwithstanding the foregoing, Assignor shall continue to
be obligated to: (a) correct any defects in
Landlord's
Work and/or Landlord's Completion Work (as such terms are
defined in the Lease), arising on or before
October 4,
2009, subject to the terms of Section 2.5.6 of the Lease,
provided that Assignee delivers to Assignor written notice
of such claims of Tenant on or before October 9, 2009; and
(b) with respect to latent defects, enforce the rights of
Owner under that certain AIA
Document A111 between
Assignor, as Owner, and Weiss Builders, Inc, as Contractor
dated November 27, 2007 (the "Construction Contract") for
Lot 2 on behalf of Assignee and at Assignee's expense for
correction of such latent defects (If the remedy of
such
matters shall take beyond the
aforementioned date,
Assignor agrees to undertake the remedy until completion).
Assignor shall indemnify and hold Assignee harmless
from
any and all liabilities, claims, obligations
(including
reasonable attorney's fees for the enforcement
of this
provision to the extent actually incurred) resulting from
Assignor's failure to fulfill its obligations under
this
paragraph.
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.
IN WITNESS WHEREOF, Assignor and Assignee
have
executed this Assignment effective as of the day and
year first above written.
ASSIGNOR: BRADFORD LANDING SOUTH
LLC, an Illinois limited
liability company
By: Bradford Real Estate
Services Corp., its manager
By:/s/
CHAD JONES
Name: Chad Jones
Its: Treasurer and Assistant
Secretary
ASSIGNEE: AEI NET LEASE INCOME &
GROWTH FUND XX LIMITED
PARTNERSHIP, a Minnesota
limited partnership
By:
AEI Fund Management XX, Inc.,
a Minnesota corporation,
Its corporate general
partner
By: /s/ ROBERT P JOHNSON
Robert P Johnson, Its President
AEI INCOME & GROWTH FUND 27
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 ILLINOIS )
) ss
COUNTY OF
COOK )
The forgoing instrument was acknowledged before
me
this
day of May,
2009, by Chad Jones, as Treasurer/Assistant Secretary of
Bradford Real Estate Services Corp., the manager of
Bradford Landing South LLC, an Illinois limited liability
company, on behalf of said corporation.
WITNESS my hand and official seal.
Notary Public
My commission expires
ACKNOWLEDGEMENT
STATE OF MINNESOTA
)SS.
COUNTY OF RAMSEY
BEFORE ME, the undersigned Notary Public,
duly
commissioned and qualified within and for the State and
County aforesaid,
Personally came and appeared, Robert P.
Johnson, that
he is the President of AEI Fund
Management XX, Inc.,
corporate general partner of AEI Net Lease Income & Growth
Fund XX Limited Partnership, and that as such officer and
on behalf of and in the name of such corporation, on
May
20 , 2009, he signed and executed the above and foregoing
instrument, and said appearer acknowledged said instrument
to be the free act and deed of said corporation, for the
purposes and considerations therein expressed on behalf
of the limited partnership.
IN WITNESS WHEREOF, this instrument is
executed in
the presence of the undersigned witnesses and me, a Notary
Public, on this 20th day of May, 2009.
/s/ Marissa M Kim
Notary Public
[notary seal]
ACKNOWLEDGEMENT
STATE OF MINNESOTA
)SS.
COUNTY OF RAMSEY
BEFORE ME, the undersigned Notary Public,
duly
commissioned and qualified within and for the State and
County aforesaid,
Personally came and appeared, Robert P.
Johnson, that
he is the President of AEI Fund Management
XXI, Inc.,
managing member of AEI Income & Growth Fund 27
LLC, and
that as such officer and on behalf of and in the name
of
such corporation, on May 20 , 2009, he signed and executed
the above and foregoing instrument, and
said appearer
acknowledged said instrument to be the free act and
deed
of said corporation, for the purposes and
considerations
therein expressed on behalf of the
limited liability
company.
IN WITNESS WHEREOF, this instrument is
executed in
the presence of the undersigned witnesses and me, a Notary
Public, on this 20th day of May, 2009.
/s/ MARISSA M KIM
Notary Public
[notary seal]
EXHIBIT A
Legal Description
Real property in the City of Vernon Hills, County of
Lake,
State
of Illinois, described as follows:
Parcel 1:
Lot 2 in the Shoppes at Gregg's Landing Subdivision of parts
of Section 28 and 33, Township 44 North, Range 11 East of the
Third Principal Meridian, according to the Plat thereof
recorded October 11, 2007 as document 6255002, in Lake County,
Illinois.
Parcel 2:
Easement for the benefit of Parcel 1 for access, ingress and
egress as created by the Declaration of Easements, Covenants,
Restrictions, Rights and Obligations by and between Bank of
America N.A., John F. Cuneo, Jr., Consuela Cuneo McAlister,
and William G. Myers, as successor trustees under Declaration
of Trust dated August 12, 1935, Bradford Landing South LLC, an
Illinois limited liability company, and Lowe's Home Centers,
Inc., a North Carolina corporation, recorded October 11, 2007
as document 6255007 as set forth on the Site Plan attached
thereto as Exhibit A.
Parcel 3:
Easement for the benefit of Parcel 1 for ingress and egress
as created by Easements, Covenants, Conditions and
Restrictions by and between Bradford Landing South LLC, an
Illinois limited liability company and Lowe's Home Centers,
Inc., a North Carolina corporation, recorded October 11, 2007
as document 6255006, as set forth in Exhibit A attached
thereto.
Parcel 4:
Easement for the benefit of Parcel 1 for access as created by
Declaration of Easements and Maintenance Agreement made by
Bradford Landing South LLC, an Illinois limited liability
company, dated October 9, 2007, recorded October 11, 2007 as
document 6255008, as amended by First Amendment to Declaration
of Easements and Maintenance Agreement made by Bradford Landing
South LLC, an Illinois limited liability company, dated and
recorded as of even date herewith.
LEASE
between
BRADFORD LANDING SOUTH LLC
and
STAPLES THE OFFICE SUPERSTORE EAST, INC.
Dated September , 2007
for
premises located at
The Shoppes at Gregg's Landing
Vernon Hills, Illinois
The preparation, revision or
delivery of this Lease for
examination and discussion shall in no event be deemed to be an
offer to lease the Premises but shall be merely a part
of the
negotiations between Landlord and Tenant. Neither party
hereto
shall have any obligation or liability to the other
whatsoever
at law or in equity (including any
claims for detrimental
reliance or promissory estoppel) unless and until such time
as
both parties shall have executed and delivered this Lease.
Table of Contents
Article I. Basic
Data
1
2
Article IL Lease of
Premises
Section 2.1. Premises
2
Section 2.2. Building and
Center
2
Section 2.3. Common
Facilities
3
Section 2.4.
Possession
4
Section 2.4.1. Delivery
of
4
Possession
Section 2.4.2. Date of
Delivery
4
Section 2.4.3. Condition of
Premises
4
Section 2.4.4. Landlord's Completion
5
Work
Section 2.4.5. Certificate
of
6
Occupancy
Section 2.5. Landlord's
Work
6
Section 2.5.1. Intentionally
Omitted
6
Section 2.5.2. Plans
and
6
Specifications
Section 2.5.3. Landlord's
Work
6
Schedule; Permits
Section 2.5.4. Performance of Work
7
Section 2.5.5. Tenant's
Inspection
7
Section 2.5.6. Landlord's
Guarantee
8
of Construction
Section 2.6. Tenant's
Work
8
Section 2.7.
Construction
8
Representatives
Section 2.8 Adjustment of
Areas
8
Article III.
Term
9
Section 3.1. Commencement Date;
Term
9
Section 3.2.
Options
9
Section 3.3. Lease
Years
9
Article IV. Rent and
Additional
10
Charges
Section 4.1. Base
Rent
10
Section 4.2.
Taxes
10
Section 4.2.1. Tenant's Tax
Payments
10
Section 4.2.2. Definition
of
10
Property Taxes
Section 4.2.3. Tax
Reductions
11
Section 4.3. Insurance
Contribution
11
Section 4.4. Common Facilities
Costs
11
Section 4.4.1. Tenant's
Obligation
11
Section 4.4.2. Definition of
Common
11
Facilities Costs
Section 4.4.3. Payment of
Common
11
Facilities Costs
Vernon Hills, IL (RKH) 7-20-07
Section 4.4.4. Records; Audit
Right
12
Section 4.5. Shared Driveway
Costs
12
Section 4.5.1. Tenant's
Obligation
12
Section 4.5.2. Definition of Slared Driveway Costs 12
Section 4.5.3. Payment of Shared Driveway Costs
12
Section 4.5.4. Records; Audit
Right
12
Section 4.6.
Payments
12
Article V.
Use
13
Section 5.1. Permitted
Use
13
Section 5.2. Exclusive, Prohibited and Restricted
Uses
13
Section 5.2.1. Exclusive
Use
13
Section 5.2.2. Prohibited
Uses
14
Section 5.3. Covenants in
General
15
Section 5.4.
Recapture
15
Section 5.4.1. Termination
Payment
16
Section 5.5. Obligation to
Open
16
Article VI. Alterations;
Signs
16
Section 6.1. Compliance with
Law
16
Section 6.2. Tenant's
Alterations
16
Section 6.2.1. Satellite Antennae
17
Section 6.3. Tenant's Pei
MIAS
17
Section 6.4.
Liens
17
Section 6.5. Trade
Fixtures
17
Section 6.6. Compactors and
Dumpsters
17
Section 6.7.
Signage
18
Section 6.7.1. Initial
Signage
18
Section 6.7.2. Future
Signage
18
Section 6.7.3. Initial Pylon
Signage
18
Article VII.
Insurance
18
Section 7.1. Landlord's
Insurance
18
Section 7.1.1. Liability
Insurance
18
Section 7.1.2. Property
Insurance
19
Section 7.2. Tenant's
Insurance
19
Section 7.2.1. Liability
Insurance
19
Section 7.2.2. Sole Risk of
Tenant
19
Section 7.2.3.
Self-Insurance
19
Section 7.3. General
Requirements
19
Section 7.3.1. Provisions of
Policies
19
Section 7.3.2. Release; Waiver of
Subrogation 20
Section 7.3.3. Increases in
Insurance
20
Section 7.4.
Indemnity
20
Section 7.4.1. Landlord's
Indemnity
20
Section 7.4.2. Tenant's
Indemnity
20
Section 7.4.3. Environmental
Indemnities
20
Article VIII. Maintenance, Repairs and Utilities 21
Section 81 Tenant's
Obligations
21
Section 8.2. Landlord's
Obligations
22
Section 8.3. Utilities and
HVAC
23
Section 8.3.1.
Utilities
23
Section 8.3.2. HVAC
Maintenance
23
Section 8.4.
Performance
23
Article IX.
Assignment
23
Section 9.1. Permitted
Assignment
23
Section 9.2.
Recognition
24
Article X. Casualty;
Restoration
24
Section 10.1.
Restoration
24
Section 10.2. Substantial
Casualty
24
Section 10.3. Rent Abatement; Suspension of Term 25
Article XI. Eminent
Domain
25
Section 11.1.
Total
25
Section 11.2.
Partial
25
Section 11.3. Rent
Abatement
26
Section 11.4.
Award
26
Article XII. Defaults;
Remedies
26
Section 12.1. Tenant's
Defaults
26
Section 12.2.
Remedies
26
Section 12.3.
Disputes
27
Section 12.4. Self
Help
27
Article XIII. Representations and Warranties;
Quiet
Enjoyment
27
Section 13.1. Landlord's Representations
and
Warranties
27
Section
13.2. Quiet
Enjoyment
28
Section 13.3. Subordination;
Non-Disturbance 28
Section 13.4. Memorandum of
Lease
29
Section 13.5. Landlord
Waiver
29
Section 13.6. The
CCRs
29
Section 13.6. I. Grant of Rights
Section 13.6.2. Priority of
OEA
29
Article XIV. General
Provisions
30
Section 14.1.
Broker
30
Section 14.2. Rent Refund;
Reimbursement
30
Section 14.3.
Notices
30
Section 14.4 Holding Over
30
Section 14.5.
Waiver/Remedies
30
Section 14.6.
Successors
31
Section 14.7.
Interpretation
31
Section 14.8. Consents and
Approvals
31
Section 14.9. Force
Majeure
31
Section 14.10. Partial
Invalidity
31
Section 14.11. Attorney
Fees
32
Section 14.12.
Certificates
32
Section 14.13. Entire
Agreement
32
Section 14.14.
Interest
32
Section 14.15. Effect of
Lease
32
Section 14.16.
CPI
32
Section 14.17. Waiver of Consequential
Damages 32
Section 14.18.
Exculpation
32
Section 14.19. Co-Tenancy
33
Section 14.20. Acquisition
Contingency
33
Signatures
35
Exhibits
37
Exhibit A. Plan of
Center
37
Exhibit B-1. Legal Description of
Premises 38
Exhibit B-2. Legal Description of
Center
39
Exhibit C. Landlord's
Work
40
Exhibit D. Tenant's
Work
41
Exhibit E. Prototypical Signage and Exhibit
Criteria
42
Exhibit E-1. Building
Elevations
43
Exhibit E-2.
Pylon/Monument
Signage
44
Exhibit F. Existing
Exclusives
45
Exhibit G. The
CCRs
46
Schedules
47
Schedule 1. Commencement Date
Agreement
47
Schedule 2A. Subordination, Non-Disturbance
and Attornment
Agreement
48
Schedule 2B. Recognition and Attornment Agreement 51
Schedule 3. Memorandum of
Lease
53
LEASE
THIS LEASE is made as of
September , 2007 by and between
BRADFORD LANDING SOUTH LLC, an Illinois limited liability
company
("Landlord"), and STAPLES THE OFFICE SUPERSTORE
EAST, INC., a
Delaware corporation- "Tenant")
Article I. Basic Data
Each reference in this Lease to any of the
terms contained in
this Article or otherwise defined herein shall be construed to
incorporate the definitions or data stated under that term.
Premises Address: The Shoppes at Gregg's
Landing Milwaukee Avenue and
Gregg's Parkway Vernon Hills,
IL
Term:
Initial Term: 10 Lease Years
Extended Term: 3 options for 5 additional
Lease Years, followed by one
additional option for 4
Base Rent:
Lease Year Lease Years and 11 calendar months
P.S.F.*
Annually Monthly
1-10 $23.00
$440,450.00 $36,704.17
11-15 $24.50
$469,175.00 $39,097.92
16-20 $26.00
$497,900.00 $41,491.67
21-25 $27.50
$526,625.00 $43,885.42
26-30 $29.00
$555,350.00 $46,279.17
* P.S.F. is defined as per square foot of leaseable area within
the
Building.
As defined in Section
2.8 hereof As defined
in Section 2.8 hereof
Environmental Report Date: As of the date
hereof
Final Specifications Date: November 30,2007
Work Commencement Date: November 1, 2007
Delivery
Date:
June 30, 2008
Outside Delivery Date: October 30, 2008
LandLord address
c/o Bradford Real Estate
Services Corp.
10
South Wacker Drive, Suite 2935
Chicago, IL 60606
Attention: Chief Financial Officer
Landlord's Federal ID #: 20-5983784
Landlord's Property Management
Representative: Mr. James Toutman,
Chief
Financial Officer Bradford Real
Estate Services Corp.
10 South Wacker Drive, Suite 2935
Chicago, IL 60606
Phone: (312) 755-8003
Tenant Address: P.O. Box 9271
500 Staples Drive
Framingham, MA 01701-9271
Attention: Lease Administrator
with a copy to: Attention:
Legal Department Reference:
Vernon Hills, IL
Construction
Representatives: Landlord: Mr. Eric
Dams
Tenant: Mr. John Lynch or Mr. Larry Bellomy
Article IL Lease of Premises
Section 2.1.
Premises. In consideration of
the mutual
covenants and agreements herein contained, Landlord
hereby leases
to Tenant the premises of approximately 1.93
acres of land (the
"Premises") located at the Premises Address which is
designated as
"PREMISES" on Exhibit A and is legally described on
Exhibit B-1,
with all improvements, structures and buildings located
thereon.
Section 2.2. Building
and Center. The Building containing
approximately 19,150 square feet of space (the
"Building") is or
will be located on a portion of
the Premises and is shown
approximately on Exhibit A. The Premises is located on
a portion
of that certain tract of land which is
shown approximately on
Exhibit A, contains approximately 21.89 acres of land,
is legally
described on Exhibit B-2, and is commonly
referred to as The
Shoppes at Gregg's Landing (the "Center"). Landlord
may increase
the size of the Center by adding land adjacent
thereto and may
decrease the size of the Center by disposing of any
part thereof;
provided, however, the provisions of clauses (a)
through (e) of
Section 2.3 hereof and the provisions of Sections 5.2,
5.3, 6.1,
7.1, 7.3, 7.4, 8.2, 11.2 and the last sentence of
Section 10.1,
all as contained in this Lease, shall
continue to apply, or
thereafter shall apply, to the land in
question notwithstanding
the fact that it may no longer be part of the Center
(except that
the provisions of Section 2.3(b) shall not apply to land
added to
the Center). Notwithstanding the foregoing, it is
understood that
the "Center" shall initially consist of Phase I consisting of
Lots
1, 2, 3 and 4 and Outlot A, all as depicted on Exhibit
A. In the
event Landlord, in Landlord's sole discretion,
hereafter acquires
all (or a portion) of the remaining
Lots shown in Exhibit A
("Phase II"), Phase II (or
the portion so acquired) shall
thereafter be deemed to be included within the definition
of
the Center for all purposes hereunder, without notice to
Tenant.
Notwithstanding the foregoing, at Landlord's option, Lot 5
as
shown on Exhibit A may be part of either Phase I or Phase
II.
Section 2.3. Common
Facilities. Landlord grants to Tenant,
its employees and invitees, in common only
with other tenants
and their business invitees;
the non-exclusive right and-
easement to use all of the sidewalks, driveways,
parking areas,
alleys, service areas including loading and
unloading facilities
(other than the loading area, if any, which is
designed for use
with the Premises or other premises within
the Center), Center
signs (with Tenant's rights to same being governed
under Section
6.7 hereof), landscaping, if any, septic systems,
cesspools and
other facilities of the Center designed for use by
all occupants
of the Center (the "Common
Facilities"). Landlord grants to
Tenant the exclusive right to use that
portion of the service
area, including loading areas, designed for use with
the Building
and the right to use the sidewalks adjacent to and
immediately in
front of the Building for the storage of shopping
carts. Landlord
agrees to:
(a) allow
uninterrupted use of the Common Facilities, and
unobstructed pedestrian and vehicular
access to the Common
Facilities from other areas of the Center and from Milwaukee
Avenue
and Gregg's Parkway and from other public ways (including all
means
of ingress and egress shown on Exhibit A), at
all times except
during reasonable periods of time required to
provide necessary
maintenance or repairs or to prevent
public dedication (which
periods Landlord shall give advanced notice of and use best
efforts
to minimize) provided, however, that Landlord shall not
perform or
allow other tenants in the Center to perform any repair,
non-routine
maintenance or other work in the Common Facilities
located within
Tenant's Protected Area depicted on Exhibit A other
than initial
construction and emergencies from August 1 through
September 15,
April 1 through July 4, or from November 20 through January 7
of any
Lease Year;
(b) not (i) construct or allow
any buildings, free-standing signs,
kiosks, other structures or outdoor sales areas within Phase
I of
the Center other than as shown on Exhibit A,
(ii) increase the
height of any outparcel or pad site buildings in the
Center above
that allowed under the CCRs, (iii) except as
expressly provided
herein, construct or allow any signage or other improvement
upon the
exterior walls or roof of the Building, or (iv) modify the
exterior
of the Building from that shown on Exhibit E;
(c) not otherwise change the
Common Facilities located within
Tenant's Protected Area in any manner without the consent of
Tenant;
(d) except to the extent
Landlord is incapable of complying with
the following due solely to the proper exercise of eminent
domain,
not reduce the number of parking spaces serving the Center
below a
ratio of 4 spaces per 1000 square feet of Center leaseable
area, or
reduce the number. of spaces or change the arrangement
of parking
spaces in the Tenant's Protected Area designated on Exhibit
A, or
impose a parking fee;
(e) to the extent permitted
under applicable law, maintain a no
solicitation policy within the Center (but Landlord shall
have no
obligation to enforce same). Tenant shall have the right,
but not
the obligation, to enforce such no
solicitation policy against
violators located
anywhere within the Center and Tenant agrees to indemnify
Landlord
for all costs, claims and liabilities arising out of any
such
enforcement action taken by Tenant; and
(f)prior to and during any
construction of improvements on any
of the parcels within
Ph II-of the Center; Landlord agrees-to erect-and maintain -
at i
ts sole--cost-tempotaly fences around
such parcels until such
construction is substantially completed. Further, no
construction
materials, debris and/or equipment in connection
with any such
future construction shall be stored
within Tenant's Protected
Area.
With respect to property which is not owned by
Landlord but is
subject to the CCRs, it is understood that any rights
granted to
Tenant hereunder by Landlord and/or any obligations
hereunder of
Landlord shall only be to the extent of
Landlord's rights under
the CCRs; Landlord hereby agreeing to use reasonable
efforts and
all due diligence to enforce such rights under the CCRs.
Section 2.4. Possession
Section 2.4.1. Delivery of Possession. Upon
completion
of Landlord's Work, Landlord will put
Tenant in complete and
exclusive actual possession of the Premises in the
condition and
on the terms set forth herein ("Delivery of Possession").
Landlord
shall give Tenant at least 30 days' prior notice
(in accordance
with Section 14.3 of this Lease and
to Tenant's Construction
Representative) of the date of Delivery of
Possession and, upon
receipt of such notice by Tenant, the
Delivery Date hereunder
shall thereafter be deemed to be the earlier of (i)
the original
Delivery Date set forth in Article I hereof, or (ii) the
date set
forth in Landlord's notice. Upon Delivery of
Possession, Landlord
shall give Tenant an additional notice
thereof in the manner
aforesaid.
Section 2.4.2. Date of Delivery. Landlord will use
its
good faith, diligent and
commercially reasonable efforts to
complete Landlord's Work and to have Delivery of
Possession occur
by the Delivery Date. If Delivery of Possession does
not occur by
the Delivery Date for any reason except to the extent
delayed due
to an Event of Force Majeure (as defined in Section
14.9), Tenant
shall be given 2 days of Base Rent and additional charges
free for
every day after the Delivery Date Delivery of Possession
does not
occur. If Delivery of Possession does not occur
by the Outside
Delivery Date, Tenant may terminate this Lease by notice
any time
prior to Landlord's actual Delivery of Possession.
Notwithstanding
the reason for late Delivery of
Possession, if Delivery of
Possession occurs after October 21 of any
calendar year, then
Tenant shall have the option, in Tenant's
sole discretion, to
delay Delivery of Possession until February 1 of
the immediately
subsequent calendar year and Delivery of Possession
shall not be
deemed to occur until such date for all purposes under this
Lease.
Tenant reserves any and all rights it has under
this. Lease or
otherwise for Delivery of Possession occurring after
the Delivery
Date (as the same may be revised pursuant to this
Section 2.4.2)
whether Tenant terminates this Lease or receives the above
credit.
Section 2.4.3. Condition of
Premises. Landlord warrants that
upon Delivery of Possession
(i) Landlord's Work shall be
substantially complete except for such portions of Landlord's
Work
which cannot be completed until Tenant has
completed its work
(provided
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Landlord shall promptly complete such portions of
Landlord's Work
as soon as reasonably possible after completion of Tenant's
Work);
(ii) the HVAC system, the sprinkler system, the electrical
system,
the plumbing system, all other mechanical systems of
the Building
and the roof and structural components of the Building will
be in
good order and condition; (iii) the Building will be
weathertight,
(iv) the-Building will be free from asbestos; (v) the
Premises and
to Landlord s knowledge
and belief (but without limiting
Landlord's obligations under Section 7.4.3 and 8.2(e)), the
Common
Facilities, will be in compliance with all Environmental
Laws (as
defined in Section 7.4.3); (vi) except as
expressly provided in
Section 2.4.4, all Common Facilities shown on Exhibit A
will have
been substantially completed and will have been
constructed in a
good and workmanlike manner, using
materials of first class
quality; (vii) all construction debris, materials,
equipment and
trailers shall be removed from Tenant's Protected Area;
(viii) all
contingencies within Landlord's reasonable control (and not
within
Tenant's reasonable control) required by governmental
authorities
as a condition to Tenant obtaining
permits and approvals for
Tenant's Work shall have been fulfilled; and (ix)
Landlord shall
have provided Tenant with an accurate
street address for the
Premises. For the purposes hereof,
"substantial completion" of
Landlord's Work shall mean completion in accordance with the
Final
Specifications except for Punchlist items (as defined below)
which
are capable of completion within 30
days and which will not
interfere with Tenant's Work; provided, however, in no event
shall
Landlord's Work be deemed substantially completed
until Landlord
entirely completes construction of all items which would
interfere
with the operation of Tenant's business in the
Premises. Promptly
following Delivery of Possession, Tenant shall furnish to
Landlord
a written statement setting forth any such uncompleted
portions of
Landlord's Work (the "Punchlist").
Landlord shall diligently
complete the Punchlist items and if Landlord fails to
complete the
Punchlist items within 30 days after delivery of the
Punchlist to
Landlord, Tenant may complete any of such Punchlist
items and if
not paid by Landlord within 30 days after notice
from Tenant to
Landlord of such cost (including copies of invoices),
then Tenant
may immediately set-off the
reasonable third party cost and
expense of such completion, together with
Interest, against all
rent and additional charges due or to
become due hereunder in
accordance with Section 12.4 hereof (but without the
necessity of
any further notices to Landlord which might
be required under
Section 12.4).
Section 2.4.4.
Landlord's Completion
Work.
Notwithstanding anything contained in this Lease to the
contrary,
Landlord will use its commercially reasonable efforts to
complete,
or cause to be completed, the striping of all parking areas
within
the Premises, all landscaping, and the performance of
Item 4 on
Exhibit C ("Landlord's Completion Work")
within 30 days after
Delivery of Possession (the "Completion
Date"), and Landlord's
Completion Work shall not be a
requirement for Delivery of
Possession. If Landlord fails to complete
Landlord's Completion
Work by the Completion Date, Tenant shall be given 2
days of Base
Rent and additional charges
free for every day after
the
Completion Date Landlord
fails to so complete Landlord's
Completion Work. If Landlord
fails to complete Landlord's
Completion Work by the date Tenant desires to
open for business
within the Premises ("Tenant's Opening Date"),
Tenant shall be
given 3 days of Base Rent and additional charges
free for every
day after Tenant's Opening Date Landlord
fails to so complete
Landlord's Completion Work. Tenant shall give
Landlord 30 days
prior notice of such Tenant's Opening Date
which shall be no
sooner than the Completion Date.
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Section 2.4.5. Certificate
of Occupancy. If a
certificate of occupancy (or its
equivalent) cannot be issued
after Tenant's Work is complete due
to incompleteness of or
defects in Landlord's Work or due to any other
condition within
the Center within Landlord's reasonable control
(and in either
event not due to the act or omission of
Tenant) and Tenant is
precluded from opening for business
within the remises as a
result thereof, then Tenant shall be given-2 days
of Base Rent
and additional charges free for
every day until Tenant is
permitted to open for business
with the public within the
Premises; provided, however, that if a temporary
certificate is
issued, Landlord shall procure
a renewal of such temporary
certificate or permanent certificate prior to the
expiration of
the temporary certificate.
Section 2.5. Landlord's Work. Prior
to Delivery of
Possession, Landlord shall perform the work described in
this
Section 2.5 as follows ("Landlord's Work"):
Section 2.5.1. Intentionally Omitted.
Section 2.5.2. Plans and Specifications. Landlord shall
perform the work described on Exhibit
C, including the work
contemplated by the schedule of performance
specifications and
preliminary plans ("Performance Specifications").
Prior to the
Final Specifications Date, Landlord
will submit for Tenant's
approval detailed plans,
working drawings and
detailed
specifications ("Final
Specifications"),
which Final
Specifications shall be in
conformity with the Performance
Specifications. Tenant agrees to approve or comment upon
any such
submittals by Landlord within 10 days after submission
thereof to
Tenant, which submission
to Tenant shall expressly
and
prominently state the consequences of
Tenant's non-response as
set forth in this Section 2.5.2. If Tenant does not so
approve or
comment upon such submittals within 10 days after
submission to
Tenant together with the requisite statement in
the notice, the
same shall constitute a
"Tenant Delay", with the
Work
Commencement Date and the Delivery Date being
extended one day
for each day after the expiration of
said 10-day period that
Tenant fails to so approve or
comment upon such submittals.
Further, the Outside Delivery Date shall be extended
one day for
each day of actual delay caused by Tenant's failure to
so approve
or comment upon such
submittals within said 10-day period
(Landlord hereby agreeing to use commercially
reasonable efforts
to minimize any such delay).
The Final Specifications shall
become a part of this Lease upon approval by Tenant.
Approval of
the Final Specifications shall not be deemed to
be an agreement
that they are in compliance with law
nor shall such approval
impose any liability on Tenant; the party preparing the
plans has
sole responsibility for compliance with all
building codes and
other applicable laws and requirements. Tenant
shall reasonably
cooperate with Landlord in Landlord's obtaining
of governmental
approval of plans and specifications.
Section 2.5.3. Landlord's Work
Schedule; Permits.
Landlord's Work will be
commenced on or before
the Work
Commencement Date but not before mutual
approval of the Final
Specifications and receipt of all necessary permits and
approvals
for Landlord's Work, which permits and approvals
Landlord shall
diligently proceed to obtain. All building permits,
temporary and
permanent certificates of
occupancy and other governmental
approvals required to construct and to permit
occupancy of the
Premises for Tenant's intended use shall be obtained
by Landlord
at Landlord's expense (except for
particular licenses or use
permits normally obtained by Tenant
for the conduct of its
business). If Landlord does not obtain all governmental
permits
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and approvals for Landlord's Work and Landlord's
Completion Work
and does not commence those aspects of Landlord's
Work directly
pertaining to the Premises by the Work Commencement
Date for any
reason except to the extent due to an Event of Force
Majeure, or
Tenant Delays (as defined in
Section 2.5.2) or Tenant may
terminate this Lease by notice to Landlord any time
prior to the
actual commencement of Landlord's Work.
Notwithstanding anything
to the contrary contained herein, Landlord shall
not be required
to commence its work hereunder unless and until
the earlier to
occur of the date Landlord has received a waiver of Tenant's
right
of termination contained in
Section 2.6 or the date such
termination right expires in accordance with the express
terms of
Section 2.6. If Tenant has not provided Landlord
with a notice
indicating Tenant's decision as to
such waiver by the date
Landlord is ready or about ready to commence work,
Landlord shall
request such notice from Tenant.
Section 2.5.4. Performance of Work. Landlord's Work and
Landlord's Completion Work will be prosecuted to
completion with
due diligence and will be done at Landlord's expense,
except that
(i) promptly following receipt by Landlord of
any change order
request by Tenant after
approval by Tenant of the
Final
Specifications or any change
requested by Tenant to
the
Performance Specifications after the date hereof,
Landlord shall
provide Tenant, for Tenant's
approval, Landlord's good faith
estimate as to the delay (if any) and the increase in cost
in the
performance of Landlord's Work likely to be caused by
such change
order (Tenant hereby agreeing to respond
within 10 days after
receipt of Landlord's estimate), (ii) any increase in the
cost to
Landlord caused solely by such approved
change order made by
Tenant shall be borne by Tenant and shall be paid to
Landlord on
or before 30 days after bills
are rendered therefor, (iii)
provided Tenant authorizes the performance of such
change order,
the Work Commencement Date, the Delivery
Date and the Outside
Delivery Date shall be extended one day for each
day of actual
delay in the performance of Landlord's Work reasonably
incurred by
Landlord and caused by such change order (Landlord hereby
agreeing
to use reasonable efforts to minimize any such delay), and
(iv) to
the extent such approved change
orders made by Tenant delay
Delivery of Possession in the aggregate by more than 14
days, the
75-day period set forth in Section 3.1 hereof shall
be shortened
by one day for each day over said 14-day period that
Delivery of
Possession is delayed on account of said change orders
by Tenant
(but in no event shall such 75-day period be
shortened by more
than 45 days). Landlord's Work and/or Landlord's
Completion Work
shall not be commenced until after the Final
Specifications for
such work have been approved, shall be performed
in a good and
workmanlike manner in compliance with the
Final Specifications
(other than in non-material areas,
e.g. minor deviations in
measurements that have no actual
effect on Tenant's use or
enjoyment of the Premises) with only such subsequent
modifications
as may be approved by Tenant, and shall be in
compliance with all
building codes and other applicable
laws and regulations of
governmental authorities or boards of fire insurance
underwriters
or the like. Landlord shall keep the
Premises and the Common
Facilities free of liens as provided in Section 6.4.
Section 2.5.5. Tenant's Inspection. Tenant may enter the
Premises to inspect the progress
of Landlord's Work and to
determine if the work is being performed in
accordance with the
requirements of the Lease without being
deemed to have taken
possession or having obligated itself to pay Base Rent,
additional
charges or other charges, provided, however, that
Tenant agrees
that it shall not unreasonably interfere with Landlord's
Work.
-7-
Section 2.5.6. Landlord's Guarantee of
Construction.
Landlord agrees to correct any defects in
Landlord's Work and/or
Landlord's Completion Work provided Tenant
gives notice of such
defects to Landlord
prior to the first anniversary
of the
Commencement Date. This time limitation shall
not apply to latent
defects in Landlord's Work
and/or Landlord's Completion. Work
which Tenant could not reasonably
have discovered prior to the
expiration of such time period. Landlord
shall maintain on file
warranties and guaranties pertaining to
contractors' work and the
mechanical systems of the
Premises. To the extent assignable,
Landlord shall assign all guaranties
and warranties to Tenant
which relate to equipment and
other portions of the Premises
Tenant is to maintain.
Section 2.6.
Tenant's Work. Tenant shall have the right to
perform the work to be done by
Tenant to ready the Premises for
Tenant's business ("Tenant's Work"),
including without limitation
the installation of fixtures
and other equipment, erection of
building signs and installation of
pylon/monument sign panels as
described on Exhibit E, and stocking of
merchandise and supplies
(Landlord hereby consenting to all of the
foregoing). Tenant shall
use reasonable efforts to obtain the
permits for Tenant's signage
and elevations depicted on Exhibit E
(Tenant hereby agreeing that
all submissions to the permitting authority
shall be in accordance
with applicable code except to the extent
shown on Exhibit E).
Landlord shall have the right, upon notice
to Tenant, to obtain
Tenant's such signage and elevation permits to
Tenant's reasonable
satisfaction. If, for any reason other
than Tenant's failure to
use
reasonable
efforts
Section
2.7. Construction Representatives. Each
party authorizes the other to rely
in connection with
plans and construction upon approval and
other actions
on the party's behalf by its
respective Construction
Representative or any
other or additional persons
hereafter designated.
Section
2.8. Adjustment of Areas. The
square
footage of the
Building and the Center
may be
remeasured by Landlord or Tenant from time
to time and
Base Rent, additional
charges, Tenant's Share and
Tenant's Tax Share
shall be adjusted accordingly.
Remeasurements shall be calculated
from the exterior
face of exterior walls and from the
centerline of party
or partition walls. References in this
Section 2.8 to
"leaseable square
footage" shall be construed to
include interior square footage that is
owned and used
by owners as well as area that is
leased and used by
tenants. Tenant's Share shall
be the fraction, the
numerator of which is the leaseable area of
the Building and the
denominator of which is the
leaseable area of the Center, including
outdoor sales
areas. Tenant's Tax Share shall be
the fraction, the
numerator of which is the square footage of land
within
the Premises and the denominator of
which is square
footage of all land located on the
separately assessed
tax parcel containing the Premises.
Notwithstanding the
foregoing, in no event
shall-the yearly Base-Rent,
Tenant's Share or Tenant's Tax Share
(except as set
forth in the next sentence) be based on
square footage
within the Building greater than as set forth in
Section
2.2 hereof or on square footage within Phase
I of the
Center less than 90% of that shown on Exhibit A.
In the
event any tenant or owner occupying a
building located
within the Center performs its own
Common Facilities
maintenance or obtains the casualty insurance on its
own
building, the leaseable area contained in such
building
shall be excluded from the denominator of Tenant's
Share
for the purposes of calculating the applicable additional
rent hereunder, so long as no charges
associated with
said building (or the Common Facilities surrounding same)
are included in the Common Facilities Costs or Landlord's
Premiums to be contributed to by Tenant hereunder.
Article III. Term
Section 3.1. Commencement Date;
Term. The Term shall
begin (the "Commencement Date") on the earlier to
occur
of (i) the date Tenant opens for business with the public
within the Premises, or (ii) the 75th day
following the
later of Delivery of Possession or Tenant's
receipt of
all building and signage permits (but in no event
shall
the Commencement Date be deemed to have
occurred later
than 180 days after Delivery of
Possession). The Term
shall end on the last day of the Initial Term, unless the
Term is extended or earlier terminated. Upon commencement
of the Term, the parties will execute a Commencement Date
Agreement in substantially the form of Schedule "1".
Section 3.2. Options. Provided the
Lease is in full
force and effect and Tenant is not
then in material
default of this Lease (after the expiration of all notice
and cure periods) and Landlord is then actively
pursuing
a remedy on account of such default, Tenant
may extend
the Term for the Extended Term(s) by
giving Landlord
notice of its election to do so no less
than 9 months
prior to the beginning of such Extended Term. If
Tenant
fails to give notice by such date, Tenant's time to
give
notice of its election shall continue
until the date
which is 60 days after Landlord
notifies Tenant that
Tenant has failed to make such election. If Landlord does
not give such notice to Tenant on or before the 90th
day
before the then effective expiration date of
the Term,
the Term will extend automatically past such
expiration
date to the date 90 days after
the earlier of (a)
Landlord's notice to Tenant of
Tenant's failure to
exercise its option (subject to Tenant's
right within
such 60-day period to extend the Term), or (b)
Tenant's
notice to Landlord that it will not exercise its
option
to extend the Term.
Section 3.3. Lease Years. The first
Lease Year shall
be the period of approximately
12 months from the
Commencement Date through the last day of
the calendar
month in which the anniversary of the
Commencement Date
occurs. Subsequent Lease Years shall be
periods of 12
months each.
-9-
Article IV. Rent and Additional Charges
Section 4.1. Base Rent. Tenant shall
pay Base Rent
during the Term in accordance with the Base Rent schedule
set forth in Article I and such Base Rent shall
be paid
in equal monthly installments, in advance, on or
before
the first day of each month of the
Term. Base Rent
shall be pro rated for any Lease Year that
is not 12
months long based on the number of actual
days elapsed
and a 365 day year.
Section 4.2. Taxes.
Landlord shall pay all taxes
levied or assessed against those portions of the
Center
owned by Landlord (other than the Premises to the
extent
the Premises are separately assessed) before such
taxes
become delinquent.
Section 4.2.1. Tenant's
Tax Payments.
Commencing on the Commencement Date, as
an additional
charge, Tenant shall pay to Landlord the
Tenant's Tax
Share of Property Taxes for each tax year
of the Term
("Tenant's Tax Payment"); provided, however, that if
the
Premises is in and of itself a separately
tax parcel,
Tenant's Tax Share shall be 100% and Tenant
shall make
Tenant's Tax Payment directly to the assessing authority.
Property Taxes shall be pro rated for any
partial tax
year within the Term based on the actual number
of days
elapsed. Promptly after receipt of a Property Tax
bill,
Landlord shall provide Tenant with a statement
(a "Tax
Statement") consisting of (a) a
copy of such bill
indicating the prior payment was
made, together with
reasonable evidence of the property to which it
relates,
(b) a computation of Tenant's Tax Share of such
Property
Taxes, (c) the manner in which Tenant's Tax
Share was
calculated (including a statement of the square
footage
of all land in the
separately assessed tax parcel
containing the Premise's), and (d) a statement of whether
Landlord will contest such Property Taxes. Tenant
shall
pay Tenant's Tax Payment by the later to occur of 30 days
after receipt of the Tax Statement or 30 days
prior to
when such Center Tax is
deemed delinquent by the
assessing authority; however,
Tenant will not be
responsible for any portion of Property Taxes for
which
Landlord has not presented Tenant with a
Tax Statement
within one year after such Center Taxes were due.
Section 4.2.2. Definition of Property Taxes. "
Property Taxes" means the real estate taxes levied on the
separately assessed tax parcel containing the
Premises.
In the event (and only in the event) the Premises are not
in and of itself a separately
assessed tax parcel,
Property Taxes shall (a) exclude (i)
assessments and
taxes based on the assessed
valuation of land not
improved with commercial buildings or Common
Facilities,
and (ii) any interest or penalty
charges payable by
Landlord with respect to any such taxes so long as Tenant
made Tenant's Tax Payment
within the time periods
contained in Section 4.2.1 hereof, and (b)
reflect any
discount available to Landlord by prompt payment of
such
tax regardless of whether such prompt payment is actually
made but only so long as Tenant made Tenant's Tax Payment
to Landlord within the
applicable discount period.
Property Taxes shall also
include any tax, excise,
surcharge or assessment
hereafter levied by any
governmental taxing authority upon or against the
rents
payable hereunder by Tenant in lieu
of any Property
Taxes. Notwithstanding the foregoing, Tenant
shall have
no obligation to pay any income
taxes, sales taxes,
excess profit
taxes, franchise, capital
stock,
inheritance or estate taxes, license
fees, inspection
fees or permit fees levied against Landlord.
Landlord's
reasonable costs incurred in protesting
or contesting
Center Taxes, including
without limitation, the
reasonable fees and expenses of Landlord's attorneys,
accountants and appraisers, shall be included within
the
definition of "Center Taxes", provided that the amount of
such costs included within Center Taxes shall not
exceed
the amount of the refund or savings achieved through such
contest.
Section Reductions. If Landlord receives a
reduction of
any Property Taxes included in
Tenant's Tax Payment,
within 30 days Landlord shall pay Tenant's Tax
Share of
such reduction, after deduction of Landlord's
reasonable
out-of-pocket costs, if any, of obtaining such reduction,
to Tenant. If after request by Tenant, Landlord does
not
contest any Property Tax,
Tenant may contest such
Property Tax in its own or in Landlord's name.
Landlord
agrees to provide Tenant with all reasonable
assistance
in such contest, including
joining in and signing
pleadings. Any reduction of Property Taxes obtained shall
be paid to Landlord after payment of reasonable
out-of-
pocket costs and reimbursement of Tenant's Tax
Share of
such Property Tax reduction to the extent already paid to
Landlord.
Section 4.3. Insurance Contribution. Landlord shall pay all
premiums for the insurance required to be maintained by
Landlord under Section 7.1 ("Landlord's Premiums").
Commencing on the Commencement Date, Tenant shall reimburse
Landlord for Tenant's Share of Landlord's Premiums incurred
with respect to the insurance to be maintained under Section
7.1.1 hereof and 100 of Landlord's Premiums incurred with
respect to the insurance to be maintained under Section
7.1.2 hereof, within 30 days after receipt of a statement,
in a form reasonably satisfactory to Tenant, consisting of
(i) a copy of the premium bill indicating the applicable
policy and coverage, and (ii) a statement of Tenant's Share
of such Landlord's Premium, and the manner in which Tenant's
Share was calculated. Landlord's Premiums shall be limited
to reasonable and competitive amounts actually paid by
Landlord, and shall be pro rated for any partial calendar
year within the Term based on the actual number of days
elapsed. Tenant will not be responsible for any portion of
Landlord's Premiums for which Landlord has not presented
Tenant with a statement within one year after the applicable
calendar year.
Section 4.4. Common Facilities Costs.
Section 4.4.1. Tenant's Obligation. Commencing on the Commencement
Date, as
an additional charge, Tenant shall reimburse Landlord for Tenant's
Share of
the Common Facilities Costs for each calendar year. The Common
Facilities
Costs shall be pro rated for any partial year during the Term based
on the
actual number of days elapsed.
Section 4.4.2. Definition of Common Facilities Costs. "Common
Facilities
Costs" means the charges assessed against Landlord pursuant to
Setif of the
Lowe's CCRs (as defined in Section 13.6 hereof), including (or plus
if not
assessed under the Lowe's CCRs) costs incurred in connection with
the storm
water drainage from Lot 2 into the off-site pond located west of
Lowe's.
Section 4.4.3. Payment of Common Facilities Costs. Promptly after
receipt
of a Common Facilities Costs bill pursuant to the Lowe's CCRs,
Landlord
shall provide Tenant with a statement (a "CFC Statement")
consisting of
(a) a copy of such bill and any
