This Instrument Prepared By:
John W. Steele, Attorney At Law
Hirschler Fleischer
701 E. Byrd Street
Richmond, Virginia 23219
ASSIGNMENT AND ASSUMPTION OF LEASE
This
Assignment and
Assumption of Lease, dated as of March
18, 2005, by and between SILVER CAPITAL NET
LEASE FUND II, LLC, a
Virginia limited liability company, having
an address c/o
Larry
D. Silver, 6001 Broken Sound Parkway
NW, Suite 600, Boca
Raton,
Florida 33487 ("Assignor") to AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota limited
partnership, as to
an
undivided twenty percent (20.0%) interest
as a tenant in
common,
AEI INCOME & GROWTH FUND 24 LLC, a Delaware
limited liability
company, as to an undivided fourteen
percent (14.0%) interest as
a tenant in common, AEI INCOME & GROWTH
FUND 25 LLC, a Delaware
limited liability company, as to an
undivided forty-five percent
(45.0%) interest as a tenant in common, and
AEI PRIVATE NET LEASE
MILLENNIUM FUND LIMITED PARTNERSHIP, a Minnesota limited
partnership, as to an undivided twenty-one percent (21.0%)
interest as a tenant in common, having an address 30 East
Seventh Street, Suite 1300, St. Paul, MN
55101 (collectively,
"Assignee").
W I T N E S S E T H
WHEREAS,
CarMax, Inc., a
Virginia corporation (collectively
"Tenant") is the tenant under that certain
lease, dated
as of
July 28, 2003 (as the same may have
been modified, supplemented,
amended or assigned, the "Lease"), between
Wilmington Trust
FSB,
a federal savings bank, not in its individual capacity, but
solely as co-trustee of the GECBAF Real
Estate Trust 2002-O under
Trust Agreement dated as of November 1, 2002, as amended
("Original Landlord") and Tenant, and
pursuant to which
Lease,
Tenant leases that certain premises described on Exhibit A
attached hereto and made a part hereof, in Lithia Springs,
Georgia (the "Premises");
WHEREAS,
a Memorandum of Lease was recorded
on August 1,
2003, in Deed Book 13808, page 1851, in
the Cobb County, Georgia
records, and in Deed Book 1799, page 374,
in the Douglas
County,
Georgia records;
WHEREAS,
the Lease was assigned
to CarMax Auto Superstores,
Inc., by Assignment of Lease dated July 28,
2003, as recorded
on
August 1, 2003, in Deed Book 13808, page
1855, in the Cobb
County, Georgia records, and in Deed Book
1799, page 378, in
the
Douglas County, Georgia records;
WHEREAS,
Original Landlord conveyed the Premises to Assignor
on November 21, 2003, and assigned the Lease
to Assignor by
Assignment and Assumption of Lease dated as
of November 21, 2003,
as recorded on December 8, 2003, in
Deed Book 13898, page
1491,
in the Cobb County, Georgia records,
and in Deed Book 1881, page
613, in the Douglas County, Georgia
records;
WHEREAS, on this
date, Assignor has conveyed the Premises to
Assignee; and
WHEREAS,
in connection with Assignor's
conveyance of
the
Premises to Assignee, Assignor desires to
assign its interest
in
and to the Lease to Assignee and Assignee desires
to assume
Assignor's interest in and to the
Lease.
NOW THEREFORE, in consideration of Ten
and 00/100
($10.00)
Dollars and other good and valuable
consideration, the
receipt
and sufficiency of which are hereby acknowledged,
the parties
agree as of the date hereof (the "Effective
Date"), as follows:
1. Effective on the date
hereof, Assignor hereby assigns, sets
over, conveys, delivers and transfers to Assignee all of
Assignor's right, title and interest as
landlord in and to
the
Lease.
2. Assignee hereby assumes and
agrees to perform all of the
terms, covenants and conditions of the
Lease on the part of
Assignor, as landlord, to be performed on
and after the date
hereof.
3. The Assignee hereby
indemnifies and agrees to hold the
Assignor harmless from all claims and
liabilities incurred,
including reasonable attorneys' fees, in
connection with events
or defaults occurring under the Lease from
and after the
Effective Date. The Assignor hereby indemnifies
and agrees to
hold the Assignee harmless from all claims
and liabilities
incurred, including reasonable attorneys'
fees, in connection
with events or default occurring under the
Lease prior to the
Effective Date.
4. This Assignment shall be
construed in accordance with the
laws of the State of Georgia.
5. This Assignment may be
executed in any number of
counterparts, each of which so executed
shall be deemed original;
such counterparts shall together constitute
but one agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have
executed this
Assignment as of the day and year first
above written.
Signed, delivered, and notarized
ASSIGNOR:
in the presence of:
SILVER CAPITAL NET LEASE FUND II,
LLC, a Virginia limited liability company
/s/Patricia A Costa (SEAL)
Signature of Unofficial
By: SILVER CAPITAL
MANAGER, LLC
Witness
a Virginia limited liabilty company
its Manager
/s/ Patricia A Costa (SEAL)
By: /s/ Paul S Elkin
Signature of Notary Public
Paul S Elkin
Executive Vice President
[SEAL]
My commission expires:
Signed, delivered, and notarized
ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf
AEI INCOME & GROWTH FUND XXI
Signature of Unofficial Witness
LIMITED PARTNERSHIP, a
Minnesota
limited partnership
/s/ Jennifer L Schreiner
By: AEI Fund
Management XXI, Inc.,
Signature of Notary Public
its General Partner
[SEAL]
By: /s/ Robert P
Johnson
Robert P Johnson, its President
My commission expires:
Signed, delivered, and notarized
ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf
AEI INCOME & GROWTH FUND 24 LLC
Signature of Unofficial Witness
a Delaware limited
liability company
/s/ Jennifer L Schreiner
By: AEI Fund
Management XXI,Inc.,
Signature of Notary Public its
Managing Member
[SEAL]
By: /s/ Robert P
Johnson
Robert P Johnson, its President
My commission expires:
Signed, delivered, and notarized
ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf
AEI INCOME & GROWTH FUND 25 LLC
Signature of Unofficial Witness
a Delaware limited
liability company
/s/ Jennifer L Schreiner
By: AEI Fund
Management XXI,Inc.,
Signature of Notary Public its
Managing Member
[SEAL]
By: /s/ Robert P
Johnson
Robert P Johnson, its President
My commission expires:
Signed, delivered, and notarized
ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf
AEI PRIVATE NET LEASE MILLENNIUM
Signature of Unofficial Witness
FUND LIMITED
PARTNERSHIP a
Minnesota limited partnership
/s/ Jennifer L Schreiner
By: AEI Fund
Management XVIII,Inc.,
Signature of Notary Public its
Managing Member
[SEAL]
By: /s/ Robert P
Johnson
Robert P Johnson, its President
My commission expires:
EXHIBIT A
(1977 Thornton Road, Lithia
Springs, Douglas County and Cobb
County, Georgia)
Legal Description:
ALLTHAT TRACT or parcel of land lying and
being in Land Lots
421
and 482 of the 18th District of Douglas and Cobb Counties,
Georgia, and being more particularly
described as follows:
COMMENCING at the intersection of the
northerly right of
way of
Thornton Road (290 foot right of way) and
the west line of
Land
Lot 482; thence south 50 degrees 55 minutes
15 seconds east
for
41.76 feet, to a 1/2 inch rebar set, and
the Point of
Beginning:
thence departing the right of way of Thornton
Road, north 25
degrees 55 minutes 10 seconds east, for
1,140.63 feet, to a
1/2
rebar on the southerly bank of Carroll
Creek; thence
continuing
along said line, north 25 degrees 55
minutes 10 seconds
east, a
distance of 11.52 feet, to the centerline
of Carroll Creek; thence
along the centerline of Carroll Creek the
following bearing
and
distances: south 78 degrees 11 minutes 32
seconds east, for
56.74
feet; thence north 83 degrees 11 minutes 55
seconds east, for
184.43 feet; thence south 47 degrees 35
minutes 48 seconds
east,
for 342.71 feet; thence north 61 degrees 34
minutes 57
seconds
east, for 46.11 feet; thence south 30 degrees
29 minutes 28
seconds east, for 159.12 feet; thence
south 78 degrees 35 minutes
46 seconds east, for 229.72 feet, to the east
line of Land
Lot
421; thence departing the centerline of Carroll Creek and
continuing along the easterly line of Land
Lots 421 and 482, south
07 degrees 36 minutes 22 seconds west,for
22.76 feet,to a 1/2 inch
rebar; thence south 07 degrees 36 minutes 22
seconds west,
for
231.54 feet, to a metal fence post in
concrete cut off at
ground
level; thence departing the easterly line
of Land Lot 482,
south
66 degrees 36 minutes 20 seconds west, for
1,286.85 feet, to a 1/2
inch rebar on the northerly right of way of
Thornton Road
(290
foot right of way); thence continuing along
the northerly right of
way of Thornton Road the following
bearings and distances: north
48 degrees 41 minutes 08 seconds west, for 46.51
feet; thence
north 49 degrees 46 minutes 25 seconds west, for
103.93 feet;
thence north 50 degrees 55 minutes 15 seconds
west, for 16.51
feet, to the Point of Beginning,
containing 806,639 square feet,
or 18.518 acres, more or less, as shown on
ALTA/ACSM Land
Title
Survey for AEI Fund Management, Inc., and
its affiliated entities;
and Chicago Title Insurance Company,
made by Greenhorne & O'Mara,
Inc., bearing the seal of John B.
Commander, Ga R.L.S. No. 2852,
dated February 23, 2005, revised March 3,
2005.
#651361 v3
018622.03274
Deed Book 13808 Pg 1855
Filed and Recorded Au-01-2003 09:55
2003-0185290
/s/ Jay C. Stephenson
Jay C Stephenson
Clerk of Superior Court Cobb Cty. Ga.
Return to Shirley Herren
Trinity Title Ins. Agency
437 E. Ponce De Leon Ave:
Decatur GA 30030-1938
PREPARED BY AND WHEN RECORDED, PLEASE
RETURN TO: 4740902,
T. Craig Harmon
McGuire Woods, L.L.P.
One James Center
Richmond, Virginia 23219
Lithia Springs, Georgia
ASSIGNMENT OF LEASE
THIS
ASSIGNMENT is made as
of the 28th day of Ju1y, 2003 by
CARMAX, INC., a Virginia corporation (the"
Assignor"), to .CARMAX
AUTO SUPERSTORES, INC., a Virginia
corporation (the "Assignee")
RECITALS
1. Pursuant to Lease
Agreement dated as of July , 2003,
between Assignor and Wilmington Trust FSB,
a federal savings bank,
not in its individual capacity, but
solely as co- trustee of the
GECBAF Real Estate Trust 2002-0 under Trust
Agreement dated as
of
November 1, 2002, as amended (the "Lease"), Assignor leased
certain property in Cobb and Douglas
Counties, located
at 1977
Thornton Road, Lithia Springs, Georgia (the
"Property").
2. Assignor now desires
to assign its interest m the Lease
to Assignee. NOW, THEREFORE, for and
in consideration of the sum
of One Dollar ($l.00) and other valuable
consideration, receipt of
which is hereby acknowledged, Assignor hereby assigns and
transfers to Assignee all of Assignor's
right; title and
interest
as tenant in and to the Lease. Assignee hereby assigns and
agrees
to be bound by all of the obligations of the
tenant under
the
Lease to be paid or performed during the
period beginning on
the
date hereof
IN WITNESS
WHEREOF. Assignor and Assignee have caused this
instnm1ent. to be executed by their
respective officers. duly
authorized.
Signed, sealed and delivered CARMAX,
INC
in the presence of:
By: /s/ Thomas W Reedy Jr
/s/ Molly Busch
Name: Thomas W Reedy Jr
Unofficial Witness
Title: Vice President
and Treasurer
ATTEST:
By: Stuart A
Heaton
/s/ Leslie D Frame
Name: Stuart A Heaton
Notary Public
Title Secretary
My Commission Expires September 30,
2006
[Notary Seal]
[Corporate Seal]
Signed, sealed and delivered CARMAX AUTO
SUPERSTORES INC
in the presence of:
By: /s/ James C Wilson
/s/ Molly Busch
Name: James C Wilson
Unofficial Witness
Title: Assistant
Secretary
ATTEST:
By: Stuart A
Heaton
/s/ Leslie D Frame
Name: Stuart A Heaton
Notary Public
Title Secretary
My Commission Expires September 30,
2006
[Notary Seal]
[Corporate Seal]
Location 37243
1977
Thornton Road
Lithia Springs, GA
LEASE
Between
CARMAX, INC.,
a Virginia corporation,
as TENANT
and
WILMINGTON TRUST
FSB, a federal savings bank, not in its
individual capacity, but solely as
co-trustee of the GECBAF REAL
ESATE TRUST 2002-O under Trust
Agreement dated as of November 1,
2002, as amended
as Landlord
Date July 28, 2003
TABLE OF CONTENTS
1. CERTAIN DEFINITIONS
1
2. DEMISE OF PREMISES
4
3. TERM
4
4. RENT
5
5. NET LEASE; TRUE LEASE
7
6. TITLE AND CONDITION
8
7. TAXES
9
8. USE
9
9. MAINTENANCE AND REPAIR
12
10. LIENS
13
11. ALTERATIONS
13
12. CONDEMNATION
14
13. INSURANCE
15
14. DAMAGE, DESTRUCTION
17
15. RESTORATION
18
16. SUBORDINATION TO FINANCING
19
17. ASSIGNMENT, SUBLEASING
20
18. PERMITTED CONTESTS
24
19. DEFAULT
25
20. LANDLORD'S REMEDIES
26
21. NOTICES
28
22. MEMORANDUM OF LEASE; ESTOPPEL
CERTIFICATES
28
23. SURRENDER
29
24. NO MERGER OF TITLE
29
25. LANDLORD EXCULPATION
30
26. HAZARDOUS SUBSTANCES
30
27. ENTRY BY LANDLORD
32
28. STATEMENTS
32
29. NO USURY
32
30. BROKER
32
31. WAIVER OF LANDLORD'S LIEN
33
32. NO WAIVER; CONSENTS
33
33. SEPARABILITY
33
34. INDEMNIFICATIONS
33
35. EASEMENTS, ZONING AND ENTITLEMENTS
34
36. HEADINGS
35
37. MODIFICATIONS
35
38. SUCCESSORS, ASSIGNS
35
39. COUNTERPARTS
35
40. GOVERNING LAW
35
41. WAIVER OF JURY TRIAL
35
42. ATTORNEYS' FEES
35
43. EXPANSION REIMBURSEMENT AGREEMENT
35
44. EXCULPATION OF TRUSTEE
37
THIS
LEASE AGREEMENT is
made as of this
day of July, 2003,
by and between WILMINGTON TRUST FSB,
a federal savings bank, not
in its individual capacity, but solely as
co-trustee of the GECBAF
REAL ESTATE TRUST 2002-0 under Trust Agreement dated as of
November 1, 2002, as amended, with offices at
1100 North Market
Street, Wilmington, Delaware 19890; Attention:
Corporate Trust
Administration ("Landlord"), and CARMAX, INC., a Virginia
corporation, having its principal office at
4900 Cox Road,
Glen
Allen, Virginia 23060-3317 ("Tenant").
In consideration of the rents and provisions herein
stipulated to be paid and performed, Landlord
and Tenant hereby
covenant and agree as follows:
1. CERTAIN DEFINITIONS.
(a) "Additional
Rent" shall mean all sums required to be
.paid by Tenant
to Landlord hereunder other than Basic Rent,
which sums sha1l
constitute rental hereunder.
(b ) "Affiliate"
shall mean any person or entity that is
directly or
indirectly controlled or owned by Tenant or
Landlord, as
applicable. For purposes of this Lease, the term
"control" shall
mean the ownership of fifty percent (50%) or
more of the
stock or other voting interest of the controlled
entity.
(c) "Alteration" or ,"Alterations"
shall mean any or all
changes,
additions or improvements to or of any of the
Improvements,
both interior or exterior, and ordinary and
extraordinary;
provided, however, installation and
replacements of
any existing wall covering, floor covering or
ceiling
coverings, fixtures and equipment of any of the
Improvements
shall not be deemed an Alteration.
(d) "Award"
shall mean the entire
award payable to
Trustee by reason of a Condemnation.
(e) "Basic Rent" shall
mean the annual rent payable in
monthly installments in advance on the
first day of
each month
during each year of the Term, as such Term may
be extended in
accordance with Paragraph 3, and as such annual rent may be
escalated in accordance with Paragraph 4(b
).
(f)
"Commencement Date"
shall mean the
Commencement
Date as defined in Paragraph 3
(g)
"Condemnation" shall
mean a Taking and/or a
Requisition
(h) "Default Rate" shall mean an
annual rate of interest
equal to the
lesser of (i) the Prime Rate plus five hundred
(500) basis
points or (ii) twelve percent (12%).
(i) "Discount
Rate," with. respect to the calculation
of the present value of any future
payment, means a rate equal to
the interpolated rate of yield for
U.S. Treasury
obligations as
listed on the Bloomberg :financial web
site currently located
at
http://llwww.bloomberg.com/marketslrateslindex.html. (or
if such
site ceases to exist, the successor to
such site or a
comparable
site) and having the same maturity as the date
at which such
future payment is to be made.
(j) "Environmental
Requirements" shall mean
Environmental Requirements as defined in
Paragraph 26(a).
(k)
"Environmentally
Hazardous Business"
shall mean
Environmentally Hazardous Business as
defined in Paragraph 8(a).
(l) "Event of Default" shall mean an
Event of Default as
defined in
Paragraph 19.
(m) "Hazardous Materials" shall mean
Hazardous Materials as
defined in
Paragraph 26(a).
(n) "Insurance Requirement" or
"Insurance Requirements"
shall mean, as
the case may be, anyone or more of the terms
of each
insurance policy required to be carried by Tenant
under this Lease
and the requirements of the issuer of such
policy, and
whenever Tenant shall be engaged in making any
Alteration or
Alterations, repairs or construction work of
any kind
(collectively, "Work"), the term "Insurance
Requirement" or
"Insurance Requirements" shall be deemed to
include a
requirement that Tenant obtain or cause its
contractor to
obtain completed value builder's risk insurance
when the
estimated cost of the Work in anyone. instance
exceeds the sum
of One Hundred Thousand Dollars ($100,000.00)
and that Tenant
or its contractor shall obtain worker's
compensation
insurance or other adequate insurance coverage
covering all
persons employed in connection with the Work,
whether by
Tenant, its contractors or subcontractors and with
respect to whom
death or bodily injury claims could be
asserted against
Landlord. .
(o) "Inventory" shall mean all items
of personal property
offered for
sale, rental or lease by Tenant at or on the
Leased Premises,
including, without limitation. all
automobiles and
automobile parts and accessories.
(P) "Law" shall mean any constitution,
statute, ordinance,
regulation or
rule of law.
(q) "Legal Requirement" or "Legal
Requirements" shall mean,
as the case may
be, anyone or more of all present and future
laws, codes,
ordinance (including, without limitation, zoning
ordinances and
land use requirements), orders, judgments,
decrees,
injunctions, rules, regulations and requirements,
even if
unforeseen or extraordinary, of every duly
constituted
governmental authority or agency (but excluding
those which by
their terms are not applicable to and to not
impose any
obligation on Tenant, Landlord or the Leased
Premises) and
all covenants, restrictions and conditions now
or hereafter of record which may
be applicable to Tenant, to
Landlord or to
any of the Leased Premises, or to the use,
manner of use,
occupancy, possession, operation, maintenance,
alteration,
repair or reconstruction of any of the Leased
Premises, even if
compliance therewith (i) necessitates
structural
changes or improvements (including changes
required to
comply with the; " Americans with Disabilities
Act") or results
in interference with the use or enjoyment of
any of the
Leased Premises or (ii) requires Tenant to carry
insurance other
than as required by the provisions of this
Lease.
(r) "Lender"
shall mean the entity identified "to
Tenant as such in writing, which makes a
Loan to Landlord, secured
in whole or in part by a Mortgage and
evidenced by a Note or Notes
or which is the holder of a Mortgage
and Note as a result
of an
assignment thereof, and when a Mortgage secures
multiple Notes
held by one or more noteholders, the
trustee acting on behalf of
such holders, provided such trustee has
been identified as such in
writing to Tenant.
(s) "Loan"
shall mean a loan made by a Lender to
Landlord secured in whole or in part by a
Mortgage and
evidenced
by a Note or Notes.
(t) "Mortgage" shall mean a mortgage
or similar security
instrument
hereafter executed covering the Leased Premises
from Landlord to
Lender.
(u) "Note" or
"Notes" shall mean a promissory note or
notes hereafter executed from Landlord
to Lender, which Note
or
Notes will be secured in whole or in part by
a Mortgage and
an
assignment of leases and rents.
(v)
"Permitted
Encumbrances"
shall mean
those
covenants, restrictions,
reservations, liens, conditions,
encroachments, easements and other matters of
title that
affect
the Leased Premises as of Landlord's acquisition thereof,
excepting, however, any such matters arising
from the acts of
Landlord (such as liens arising as a result
of judgments
against
Landlord).
(w) "Prime Rate"
shall mean the prime rate of interest
as published in the Wall Street Journal
from time to time.
(x) "Proceeds" shall mean the entire
proceeds paid by any
third party insurer under
any property casualty insurance
maintained
pursuant to Paragraph 13(a).
(y) "Purchase
Offer Event" shall
mean Purchase
Offer
Event as defined in Paragraph 8(a)
(z) "Requisition" shall mean any
temporary condemnation or
confiscation of
the use or occupancy of any of the Leased
Premises by any
governmental authority, civil or military,
whether pursuant
to an agreement With such governmental
authority in
settlement of or under threat of any such
requisition or
confiscation, or otherwise.
(aa)
"Restoration" shall mean the restoration of the
Leased Premises
after any Taking or damage by casualty as
nearly as
possible to their value, condition and character
existing
immediately prior to such Taking or damage,
including the
actual expenses of Tenant.
(bb)
"State" shall mean the State or Commonwealth in
which the Leased
Premises are situated.
(cc)
"Takinng" shall mean any taking of any of the
Leased Premises
in or by condemnation or other eminent domain
proceedings
pursuant to any law, general or special, or by
reason of any
agreement with any condemnor in settlement of
or under threat
of any such condemnation or other eminent
domain
proceedings or by any other means, or any de facto
condemnation.
(dd)
"Tangible Net Worth"
shall mean
Tenant's.
equity (or capital, as applicable), less
officer and
affiliate
receivables; less intangibles, in accordance with generally
accepted accounting principles
("GAAP').
(ee )
"Taxes" shall mean taxes of every kind and nature
(including real,
ad valorem and personal property, income,
franchise,
withholding, profits and gross receipts taxes),
.all charges
and/or taxes for any easement or agreement
maintained for
the benefit of any of the Leased Premises,
all general and
special assessments, levies, permits,
inspection and
license fees, all utility charges, all ground
rents, and all
other public charges and/or taxes whether of
a like or
different nature, even if unforeseen or
extraordinary ,
imposed upon or assessed, prior to or during
the Term,
against Landlord, Tenant or any of the Leased
Premises as a
result of or arising in respect of the
.occupancy,
leasing, use, maintenance, operation,
management,
repair or possession thereof, or any activity
conducted on the
Leased Premises, or the Basic Rent or
Additional Rent,
including without limitation, ~y gross
income tax,
sales tax, occupancy tax or excise tax levied by
any governmental
body on or with respect to such Basic Rent
or Additional
Rent.
(ff)
"Term" shall mean the initial term of this Lease,
as extended
pursuant to any renewal that has become
effective.
(gg)
"Termination Date" shall mean the Termination Date
as defined in
Paragraph 12(b).
(hh)
"Trade Fixtures" shall mean the items of
personality,
which are owned by Tenant and used in the
operation of the
business conducted on the Leased Premises
as described in
Exhibit .'C" attached hereto.
2. DEMISE OF PREMISES. Landlord
hereby demises and lets to
Tenant and Tenant hereby takes and leases
from Landlord for
the
Tenn. and upon the provisions hereinafter
specified the following
described property (collectively, the
"Leased Premises") (i)
the
premises described in Exhibit " A "
attached hereto and
made a
part hereof together with the easements,
rights and appurtenances
thereto belonging or appertaining (collectively,
the "Land");
(ii) the buildings, structures, fixtures
and other improvements
constructed and to be constructed on the
Land (collectively,
the
"Improvements"), together with all additions and accessions
thereto, substitutions therefor and replacements thereof
permitted by this Lease excepting therefrom Tenant's Trade
Fixtures and all property that does not
constitute real property
under the laws of the State.
3. TERM. Tenant shall have and hold the
Leased Premises
for an initial term (the "Initial
Term") commencing on the date
hereof (the "Commencement Date") and ending
on July 31,2018
(the
"Expiration Date"). The Initial Term, any Extended Term (as
defined below) and any renewal terms (as
provided below) may
be
referred to collectively as the "Term".
Provided the Lease
shall
not have been terminated pursuant to
the provisions hereof, this
Lease and the Term thereof shall be
automatically extended
for
four (4) renewal terms of five (5) years
each upon condition that
Tenant may cancel any renewal term by giving notice, in
accordance with the provisions of Paragraph
21, to Landlord
at
least six (6) months prior to the
expiration of the then current
Term. If, prior to such six (6) month
period, Tenant does
not
give Landlord written
notice of its intent to cancel the then
applicable renewal term,
Tenant's right to cancel such renewal term
shall continue until
ten (10) business days after Landlord has
given Tenant written
notice of Landlord's election to continue
the renewal term, during
which ten (10) business day period Tenant
may exercise its right
to cancel such renewal term whereupon the
Teffi1 of this Lease
shall be terminated as if such cancellation
notice had been given
prior to such six (6) month period
described above. Upon the
giving of such notice of cancellation by
Tenant, this Lease and
the Term thereof shall terminate and come
to an end on the
Expiration bate of the then current Term.
Any such extension or
renewal of the Term shall be subject to all
of the provisions of
this Lease, and all such provisions shall
continue in full force
and effect. In the event that Tenant
exercises its option to
cancel any renewal Term as hereinabove
provided, then Landlord
shall have the right in addition to any
rights granted in
Paragraph 27, during the remainder of the
Term then in effect to
(i) advertise the availability of the
Leased Premises for sale or
for reletting, and (ii) show the Leased
Premises to prospective
purchasers, lenders or tenants at such
reasonable times during
noffi1al business hours as Landlord may
select. If Tenant shall
timely give such notice of its election to
cancel any renewal
option, then all options with regard to
subsequent extensions or
renewals of the Term shall expire and be
null and void.
Notwithstanding the foregoing, Tenant shall
have the right to
extend the Initial Term of the Lease (the
"Extension Option") at
any time within the first five (5) years of
the Initial Term by
the period of time necessary to make the
then remaining Initial
Term extend for fifteen (15) years from the
date of Tenant's
exercise of the Extension Option (the
"Extended Term"). At the end
of such Extended Term, the Lease shall
renew for the renewal terms
as set forth above. Notwithstanding the
provisions of Section 4
below, the Rent for the first five (5)
years of the Extended Term
(beginning on the date Tenant exercises the
Extension Option and
terminating on the 5th anniversary thereof)
shall be the Rent
amount in effect on the date Tenant
exercises the Extension
Option. After the expiration of such
initial five (5) year period
of the Extended Term, Rent shall escalate
as set forth in Section
4 below, and the date Tenant exercised the
Extension Option shall
act as the Commencement Date for purposes
of setting the Basic
Rent Adjustment Date pursuant to Section
4.(b )(ii).
4. RENT
(a) BASIC RENT.
The initial Basic Rent will be as set
forth in Exhibit "B" From and after the
Commencement Date, Tenant
shall pay the Basic Rent in equal
monthly installments in advance
on the .first day of each month (each a "Basic
Rent "Payment
Date") during each Lease year. If the
Commencement Date is not the
first day of a month, then the Basic Rent from
the Commencement
Date until the first day of the
following month shall be prorated
on a per diem basis at the rate of one
thirtieth (1/30) of
the
monthly installment of the Basic Rent
payable during
the first
Lease Year, and Tenant shall pay such
prorated installment of the
Basic Rent on the Commencement Date. All
sums payable by
Tenant
under this Lease, including but not limited to, Basic Rent,
Additional Rent (as hereinafter defined) or
otherwise, shall
be
paid to Landlord in legal tender of the
United States,
without
setoff, deduction or demand, by check, ACH
transfer or direct
deposit wire transfer of immediately available funds to the
following bank account, or to such other
party or address as
Landlord may designate in writing:
DEUTSCHE BANK
TRUST COMPANY - AMERICAS
Post Office Box
318
Church Street
Station
New York; New
York 10008-0318
Credit to the
Account of GE Capital BAF
ABA
#021001033
Account
No.50-261-508
RE:#
Notify: Susan
Nunmaker at (425) 450-3516
Landlord's acceptance of Basic Rent of
Additional Rent after
it
shall have become due and payable shall not
excuse a delay
upon
any subsequent occasion or constitute a waiver of any of
Landlord's rights hereunder.
(b) BASIC RENT
ESCALATION.
(i) For the purpose of
this Section, the following
definitions
shall apply: (A) the ten1i "Base Month" shall
mean the
calendar month which is five (5) years prior to the
applicable Basic
Rent Adjustment Date (as hereinafter
defined) and (B)
the term "Price Index" shall mean the
"Consumer Price
Index-United States City Average-All Urban
Consumers-all
items-not seasonally adjusted" published by the
Bureau of Labor
Statistics of the United States Department of
Labor (1982-84 =
100), or, in the event such index is
discontinue4 or
no longer readily available, any renamed
local index
covering the metropolitan area in which the
Premises are
located or any other successor or substitute
index
appropriately adjusted
(ii)
Effective as of: (A) the fifth (5th) anniversary of
the commencement
Date; and (B) each fifth (5th) year
anniversary date
thereafter throughout the Term (each, a
"Basic Rent
Adjustment Date"), the Basic Rent then in effect
shall
immediately be increased by the lesser of (i) seven and
one half percent
(7.5%) of the then current Basic Rent or
(ii) 200% of the
amount by which the Price Index in effect
immediately
prior to the applicable Basic Rent Adjustment
Date has
increased over the Price Index in effect for the
month preceding
the Base Mont4; provided that in no event
shall the Basic
Rent be decreased on any Basic Rent
Adjustment Date
(but provided that the Basic Rent may remain
the same).
(iii) If
the Price Index for the calendar month
immediately preceding the applicable Basic
Rent Adjustment Date is
not available as of any Basic Rent Adjustment
Date, then the
calculation set forth in Subparagraph (ii) of
this Section shall
be made using the most current available Price
Index (and
re-
calculated as soon as the Price Index for
the calendar month
immediately preceding the applicable Basic
Rent Adjustment
Date
becomes available). In no event shall any
adjustment made pursuant
to this Section, or any decrease in
the Price Index, ever
result
in a decrease in the Basic Rent (as
previously increased).
(c ) LATE
:PAYMENT. If any installment of Basic
Rent is not paid on the date due, Tenant
shall pay Landlord
interest on such overdue payment at-the
Default Rate,
accruing
from the due date of such payment until the
same is paid.
(d) ADDITIONAL
RENT. Tenant shall pay
and discharge
before the imposition of any fine, lien,
interest or penalty
may
be added thereto for late payment thereof,
as Additional
Rent,
all other an1ounts and obligations which
Tenant assumes or agrees
to payor discharge pursuant to this Lease,
together with
every
fine, penalty, interest and cost which
may be added by the party
to whom such payment is due for nonpayment or late payment
thereof. In the event of any failure by
Tenant to payor discharge
any of the foregoing, Landlord shall have
all, rights, powers and
remedies provided herein, by law or
otherwise, in the
event of
nonpayment of Basic , Rent.
(e) LATE FEE. If
Tenant fails to make any payment
of Basic Rent,
Additional Rent or any other sum on or before
the date that is
five (5) days after Tenant's receipt of
written notice
from Landlord that the same is past due, then
Tenant shall pay
to Landlord a late charge of five percent
(5%) of the
amount of such payment; provided, however, that
nothing
contained herein shall be construed as permitting
Landlord to
charge or receive interest in excess of the
maximum rate
allowed by law. Such late charge shall
constitute
Additional Rent due hereunder without any notice
or demand. .
5 NET LEASE: TRUE
LEASE.
(a) NET
LEASE. It is the intention of
the parties
hereto that the obligations of Tenant
hereunder shall be separate
and independent covenants and agreements, and that
Basic Rent
Additional Rent and all other sums payable by
Tenant hereunder
shall continue to be payable in all events, and that the
obligations of Tenant hereunder shall
continue unaffected, unless
the requirement to pay or perform the same shall have been
terminated pursuant to an express provision
of this Lease.
This
is a net Lease and Basic Rent
Additional Rent and all other sums
payable hereunder by Tenant shall be paid without notice or
demand and without setoff, counterclaim, recoupment
abatement
suspension, deferment din1inution, deduction, reduction or
defense, except as otherwise specifically
set forth herein.
This
Lease shall not terminate and Tenant shall
not have any right
to
terminate this Lease during the Term (except as otherwise
expressly provided herein). Tenant agrees that except as
otherwise expressly provided herein, it
shall not take any action
to terminate, rescind or avoid this Lease
notwithstanding (i) the
bankruptcy,
insolvency, reorganization,
composition,
readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Landlord (ii) the
exercise of any
remedy,
including foreclosure, under the Mortgage,
(iii) any action
with
respect to this Lease (including, the
disaffirmance hereof) which
may be taken by Landlord under the Federal
Bankruptcy 'Code or by
any trustee, receiver or liquidator of
Landlord or by any
court
under the Federal Bankruptcy Code or
otherwise, (iv) the
Taking
of the Leased Premises or any portion thereof (except as
specifically provided in Paragraph 12(b) below), (v) the
prohibition or restriction of Tenant's use
of the Leased Premises
under any Legal Requirement or otherwise,
(vi) the destruction of
the Leased Premises or any portion thereof,
(vii) the eviction of
Tenant from possession of the Leased
Premises, by paramount title
or otherwise, or (viii) default by Landlord
under any other
agreement between Landlord and Tenant.
Tenant waives all
rights
which are not expressly stated herein, but which
may now or
hereafter otherwise be conferred by law, to
quit terminate or
surrender this Lease or any of the Leased Premises; to any
setoff, counterclaim, recoupment abatement
suspension, deferment
diminution, deduction, reduction or defense
of or to Basic
Rent
Additional Rent or any other sums payable
under this Lease, and
for any statutory lien or offset right
against Landlord or
its
property, each except as otherwise
expressly provided herein.
(b) TRUE
LEASE. Landlord and
Tenant agree that
this
Lease is a true lease and does not represent a :financing
arrangement. Each party shall reflect the
transaction
represented
hereby in all applicable books, records and
reports (including
income tax. filings) in a manner consistent
with ,"true
lease"
treatment rather than "financing"
treatment.
(c )
UTILITIES. Tenant shall pay directly to the proper
authorities
charged with the collection thereof all charges
for water,
sewer, gas, oil, electricity, telephone and other
utilities or
services used or consumed on the Leased Premises
during the Term,
whether designated as a charge, tax,
assessment, fee
or otherwise, including, without limitation,
water and sewer
use charges and taxes, if any, all such
charges to be
paid as the same from time to tin1e become due.
It is understood
and agreed that Tenant shall make its own
arrangements for
the installation or provision of all such
utilities and
that Landlord shall be under no obligation to
furnish any
utilities to the Leas~ Premises and shall :not be
liable for any
interruption or failure in the supply of any
such utilities
to the Leased Premises.
6 TITLE AND
CONDITION.
(a) CONDITION. The Leased Premises are
demised and let
subject to the
Permitted Encumbrances and all Legal
Requirements and
Insurance Requirements, including any
existing
violation of any thereof, without representation or
warranty by
Landlord; it being understood and agreed,
however, that
the recital of the Permitted Encumbrances
herein shall not
be construed as a revival of any thereof
which for any
reason may have expired.
(b) NO REPRESENTATIONS Without
limiting the effect of
Landlord's
covenant set forth in Paragraph 8( c ), the
Landlord makes
no, and expressly hereby denies any,
representations
or warranties regarding the condition or
suitability of,
or title to; the Leased, Premises. Tenant
agrees that it
takes the Leased Premises ''as is," without
any such
representation or warranty.
(c) ASSIGGMENT OF GUARANTIES. Landlord
hereby conditionally
assigns, without
recourse or warranty whatsoever, to Tenant,
all warranties,
guaranties and indemnities, if any, express
or implied, and
similar rights which Landlord may have
against any
manufacturer, seller, engineer, contractor or
builder in
respect of any of the Leased Premises, including,
but not limited
to, any rights and remedies" existing under
contract or
pursuant to the Uniform Commercial Code as
adopted in the
State (collectively, the "Guaranties"). Such
assignment shall
remain in effect so long as no Event of
Default exists
hereunder or until the termination of this
Lease. Landlord
shall also retain the right to enforce any
Guaranties so
assigned in the name of Tenant upon the
occurrence of an
Event of Default hereunder. Landlord hereby
agrees to
execute and deliver, at Tenant's sole cost and
expense, such
further documents, including powers of
attorney, as
Tenant may reasonably request (and which in the
good faith
judgment of Landlord, do not adversely affect a
substantial
general interest of Landlord), in order that
Tenant may have
the full benefit of the assignment effected
or intended to
be effected by this Paragraph 6(c). Upon the
expiration or
termination of this Lease, the Guaranties shall
automatically
revert to Landlord. The foregoing provision of
reversion shall
be self-operative and no further
instrument of reassignment shall be required.
In confirmation of
such reassignment, Tenant shall execute
and deliver promptly
any
certificate or other instrument that Landlord
may request at
Tenant's sole cost and expense. Any monies
collected by
Tenant
under any of the Guaranties after the
occurrence of and during the
continuation of an Event of Default hereunder
shall be held in
trust by Tenant and promptly paid over to
Landlord
7. TAXES Tenant shall, subject to the provisions of
Paragraph 18 hereof relating to contests, before interest or
penalties are due thereon, pay and discharge all
Taxes. On or
before the Commencement Date, Landlord shall notify the
appropriate taxing authorities to deliver
directly to Tenant
all
statements and invoices for the Taxes, effective as of the
Commencement Date. Landlord shall cooperate
with Tenant
to the
extent necessary to effectuate the foregoing
notice and shall
endeavor to promptly deliver to Tenant any
bill or invoice it
receives with respect to any Taxes. If
Landlord fails to
timely
deliver to Tenant any bill or invoice it
receives with respect
to
any Taxes within five (5) business
days after Landlord's
receipt
of such bill or invoice or at least thirty (30)
business days
prior to the delinquency of such Taxes, whichever is later,
Landlord shall be responsible for any and
all interest, penalties
or fees that result from the late
payment of such Taxes by Tenant
if such payment is late due to such delay
in delivery of such bill
or invoice to Tenant. As soon as practicable
after the payment
thereof, Tenant shall deliver to Landlord
evidence of each
such
payment. To the extent that any such Taxes are imposed upon
Landlord, at Landlord's option, Tenant
shall either pay such Taxes
directly to the taxing authority or
reimburse Landlord for
such
Taxes. If the term expires or is terminated
on a day other
than
the first day or the last day of a tax year, then Tenant's
liability for Taxes for such tax year shall
be apportioned by
multiplying the amount of the Taxes for the
full tax year
by a
fraction, the numerator of which is the
number of days during such
tax year falling within the Term hereof,
and the denominator
of
which is three hundred sixty-five (365). Nothing
herein shall
obligate Tenant to pay, and the term "Taxes" shall exclude,
federal, state or local (i} franchise,
capital stock or
similar
taxes, if any, of Landlord, (ii) income,
excess profits or
other
taxes, if any, of Landlord, determined on
the basis of or measured
by its net income, or (iii) any estate,
inheritance, succession,
gift, capital levy or similar taxes
unless the taxes referred to
in clauses (i) and (ii) above are in
lieu of or a substitute for
any other tax or assessment upon or with
respect to any of
the
Leased Premises. which, if such other tax
or assessment were
in
effect at the commencement of the Term,
would be payable by
Tenant. In the event that any assessment
against any of the Leased
Premises may be paid in installments,
Tenant shall have the option
to pay such assessment in
installments; and in such event, Tenant
shall be liable only for those installments
(and all resulting
interest thereon) that become due and
payable prior
to and in
respect of the Term hereof Tenant shall
prepare and :file all
tax
reports required by governmental
authorities that relate to the
Taxes. Tenant shall deliver to Landlord,
within thirty (30)
days
of receipt of Landlord's request for the same,
copies of all
settlements and notices pertaining to the
Taxes which may be
issued by any governmental authority.
8 USE
(a) USE. Tenant may use and occupy the
Leased Premises for
any lawful
purpose. subject to the restrictions set forth in
Section 8(b);
provided, however, that in no event shall the
Leased Premises
be used as a bingo parlor, off-track betting
or other
gambling or gaming establishment, an Environmentally
Hazardous
Business or any pornographic use, including but not
limited to the
sale or rental of sexually explicit materials.
"Environmentally
Hazardous Business" shall mean (i) on site dry cleaning
operations (exclusive of pickup and drop-off), (ii) gasoline
service stations, (iii) auto repair,
lubrication and
servicing
facilities, (iv) printing facilities using
solvent-based inks
or
(v) any other business utilizing above-ground
or underground
storage tanks for purposes of storing gasoline,
diesel fuel,
other petroleum products, solvents or
other substances regulated
under Environmental Laws when stored in above-ground or
underground storage tanks. The prohibition against any
Environmentally Hazardous Business does not
prohibit the use
of
the Premises for automobile sales with
ancillary facilities
for
the repair, lubrication, inspection and
servicing of automobiles,
or underground storage tank systems used
for fueling automobiles,
provided such fuel is not offered for sale
to the general public.
In the event Tenant desires to either
maintain facilities for the
repair, lubrication, inspection and servicing of automobiles
after the discontinuance of automobile
sales on the Premises as a
primary business or to operate a gasoline
service station for the
sale of petroleum products to the general
public, Tenant
shall
provide Landlord with written notice
requesting approval of
such
intended use. If Landlord does not notify
Tenant in writing
that
Landlord gives its approval within thirty
(30) days of receipt of
such notice, such use shall be deemed a
prohibited use under this
Paragraph 8(a). If the Landlord sends notice
within thirty (30)
days denying such use or fails to respond to
Tenant's request
within such thirty (30) day period, then
such denial or
failure
to approve shall be a "Purchase Offer Event"
and Tenant may
exercise its rights pursuant to Paragraph 8(
d). In no event
shall the Leased Premises be used for any purpose
that shall
violate any of the provisions of any recorded covenants,
restrictions or agreements applicable to the
Leased Premises.
Tenant agrees that with respect to any
such recorded
covenants,
restrictions or agreements, Tenant shall observe,
perform and
comply with and carry out the provisions
thereof required therein
to be observed and performed by
Landlord. If Tenant shall desire
to use the Leased Premises for any purpose prohibited or
restricted by this Section 8, Landlord's prior
written consent
shall be required for such use, and
Landlord may withhold
such
consent in its sole and absolute
discretion.
(b) RESTRICTIONS.
Tenant shall not permit any unlawful
occupation, business or trade; to be conducted
on any of the
Leased Premises and shall comply with all applicable Legal
Requirements and Insurance Requirements. Tenant
shall not use,
occupy or permit any of the Leased Premises
to be used or
occupied, nor do or permit anything to be
done in or on any
of
the Leased Premises, in a manner which would
(i) violate any
certificate of occupancy or equivalent
certificate affecting
any
of the Leased Premises, (ii) make
void or voidable any insurance
which Tenant is required hereunder to
maintain then in force with
respect to any of the Leased Premises,
(iii) affect in any manner
the ability of Tenant to obtain any insurance
which Tenant
is
required to furnish hereunder, (iv) cause
any injury or damage to
any of the Improvements unless
pursuant to alterations permitted
under Paragraph 11 hereof, (v) constitute a public
or private
nuisance or waste, or (vi) increase the
use, handling,
storage,
transportation, generation, or disposal of
Hazardous Materials on
the Leased Premises; provided, however, the prohibition in
Paragraph 8(b )(vi) does not limit the use
of the Premises
for
automobile sales with ancillary facilities for the repair,
lubrication, inspection and servicing of automobiles, or
underground storage tank systems used for fueling
automobiles,
provided such fuel is not offered for sale
to the general public.
(c) QUIET ENJOYMENT. Subject to all of
the provisions of
this Lease, so
long as no Event of Default exists hereunder,
Landlord
covenants that neither it nor any party claiming
by, through or
under it, shall do any act to disturb the
peaceful and quiet
occupation and
enjoyment of the Leased Premises by Tenant.
Landlord may
enter
upon and examine any of the Leased
Premises at reasonable
times
after reasonable notice and during
business hours and
exercise
any rights and privileges granted to Landlord under the
provisions of this Lease.
(d) PURCHASE OFFER. In the event of a
Purchase Offer Event,
Tenant may serve
notice upon Landlord of its desire to
purchase the
Property and terminate this Lease on the date
set forth in
such notice (the "Purchase Date"). Tenant
shdall, as part
of such notice, inform Landlord of its offer
to purchase the
Leased Premises for its appraised value (the
"Purchase
Price") (to be determined as set forth below) plus
all other
amounts which may be due and owing to Landlord by
reason of any
default by Tenant in complying with its
obligations
under this Lease (the "Additions to Purchase
Price").
Landlord shall reject or accept Tenant's purchase
offer in writing
within fifteen (15) days after receipt of
such purchase
offer. In the event Landlord accepts such
purchase offer,
Tenant and Landlord shall each select one
independent and
licensed MAI certified appraiser (the
"Initial
Appraisers") and the Initial Appraisers shall
together select
a third independent and licensed MAI
certified
appraiser to perform an appraisal of the Leased
Premises.
In the event
Landlord accepts Tenant's purchase offer, title
shall close thirty (30) days after the Purchase Date (the
"Closing Date"), at such time and place as
the parties hereto may
agree upon, this Lease shall continue through
the Closing Date
(or, if applicable, the extended Closing Date hereinafter
described) and Tenant shall pay the
Purchase Price and
Additions
to Purchase Price by transferring
immediately available
federal
funds to such account or accounts and in
such bank or banks
as
Landlord shall designate, upon delivery of a
special warranty
deed conveying the Leased Premises and all other required
documents. The special warranty deed shall convey
a good and
clear record and marketable title, free
from encumbrances
other
than (i) Permitted Encumbrances, (ii) liens or encumbrances
created or suffered through or by Tenant
failing to observe
or
perform any of the terms, covenants or
agreements herein provided
to be observed and performed by Tenant,
(iii) any installments of
Taxes due and payable after the Closing Date,
and (iv) this
Lease. Such deed shall contain an agreement
by grantee to observe
and perform all of the covenants, conditions and
restrictions
contained in any instruments of record which
were assumed by
Landlord or deemed to have been assumed by Landlord on its
acquisition of title. The Purchase Price and Additions to
Purchase Price payable as hereinabove
provided shall be
charged
or credited, as the case may be, on
the Closing Date, to reflect
adjustments of Basic Rent paid or payable to
and including
the
Closing Date, apportioned as of the
Closing Date. The acceptance
of a deed by Tenant shall be deemed
to be a full performance and
discharge of every agreement and obligation
on the part of
Landlord to be performed pursuant to the provisions hereof.
Tenant shall pay all conveyance,
transfer, sales and like taxes
required in connection with the purchase.
If on the Closing Date,
there may be any liens or encumbrances which Landlord is
obligated to remove, Landlord shall use
reasonable efforts
to
remove the same, and the Closing Date shall
be extended for
a
reasonable period to permit Landlord to
discharge such liens
or
encumbrances. Landlord shall not be obligated to
discharge any
such lien or encumbrance if Tenant's title
insurance company
shall issue affirmative insurance to the
effect that the
same
shall not be collected from or enforced
against the insured
premises. If there be any liens or encumbrances
against the
Leased Premises which Landlord is
obligated to remove (that is,
any adverse title matters other than those to
which Landlord's
conveyance under special warranty deed may be
subject as set
forth in subparagraphs (i) through (iv)
above), upon request made
a reasonable time before the Closing
Date, Landlord shall provide at the Closing
separate funds for
the foregoing, payable to the holder of
such lien or encumbrances.
9. MAINTENANCE AND REPAIR
(a) MAINTENANCE.
Tenant shall at all times, including
any Requisition period, put, keep and maintain the Leased
Premises, including, without limitation, the
roof, landscaping,
walls (interior and exterior), footings,
foundations, parking lot
improvements and structural and mechanical
components
of the
Leased Premises in good repair and
appearance, and shall promptly
make all repairs and replacements
(substantially equivalent in
quality and workmanship to the original
work) of every kind
and
nature, whether foreseen or unforeseen,
which may be required
to
be made upon or in connection with
any of the Leased Premises in
order to keep and maintain the Leased
Premises in as good repair
and appearance as they were as of the
Commencement Date.
Tenant
shall do or cause others to do all shoring
of the Leased Premises
or of foundations and walls of the
Improvements and every other
act necessary or appropriate for
preservation and safety thereof,
by reason of or in connection with any excavation
or other
building operation upon any of the Leased
Premises, whether
or
not Landlord shall, by reason of any Legal Requirements or
Insurance Requirements, be required to take
such action
or be
liable for failure to do so. Landlord shall
not be required to
make any repair, whether foreseen or
unforeseen, or to maintain
any of the Leased Premises in any way, and Tenant hereby
expressly waives the right to make repairs
at the expense of
the
Landlord, which right may otherwise be
provided for in any
law
now or hereafter in effect. Nothing in the
preceding sentence
shall be deemed to preclude Tenant from
being entitled to
any
Proceeds or Awards for Restoration pursuant
to the terms of
this
Lease. Tenant shall, in all events, make
all repairs for which it
is responsible hereunder promptly, and all
repairs shall be in
a
good, proper and workmanlike manner. If
any such repair or
maintenance constitutes an "Alteration" as defined herein,
Paragraph 11 below shall govern Tenant's
completion thereof
with
respect to notices to and/or consents from
Landlord and. the
requirement for supervision by an architect
or engineer.
(b )
FAILURE TO MAINTAIN. If Tenant shall be in default
under any of the
provisions of this Paragraph 9, Landlord
may, after
thirty (30) days notice to Tenant and the failure
of Tenant to
commence to cure during said period or to
diligently
prosecute such cure to completion once begun. but
immediately upon
notice in the event of an emergency (that
is, imminent
danger of injury to persons or property), do
whatever is
necessary to cure such default as may be
reasonable under
the circumstances for the account of and at
the expense of
Tenant. In the event of an emergency, before
Landlord may
avail itself of its rights under this Paragraph
9(b), Landlord
shall give prior notice to Tenant of the
situation (which
notice may be given by phone or other
available
communication and need not be in writing as
otherwise
required by Section 21 below). All actual,
reasonable costs
and expenses (including, without
limitation,
reasonable attorneys' fees and expenses,
including
appellate fees and expenses) so incurred by
Landlord,
together with interest thereon at the. Default
Rate from the
date of payment or incurring the. expense,
shall constitute
Additional Rent payable by Tenant under
this Lease and
shall be paid by Tenant to Landlord on demand
Landlord and
Tenant agree that, in the event of an
emergency,
expenditures which might otherwise be
unreasonable
(such as overtime) may nevertheless be
reasonable under
the circumstances
(c)
REPLACEMENTS. Tenant
shall from
time to time
replace with other new or refurbished
equipment or parts any
of
the mechanical systems or other equipment included in the
Improvements which shall have become worn out, obsolete or
unusable for the purpose for which it is
intended, bee~ taken
by
a Condemnation as provided in Paragraph 12,
or been lost, stolen,
damaged or destroyed as provided in Paragraph
14. Tenant shall
repair at its sole cost and expense all damage
to the Leased
Premises caused by the removal of equipment
or any other personal
property of Tenant at any time, including upon
expiration
or
termination of the Lease.
10. LIENS Tenant shall not,
directly or indirectly, create
or permit to be created or to remain, and shall promptly
discharge, any lien on any of the Leased
Premises, on the
Basic
Rent, Additional Rent or on any other sums
payable by Tenant
under this Lease, other than the Mortgage
(and any assignment
of
leases, rents, profits or collateral in
connection
therewith),
the Permitted Encumbrances and any
mortgage, lien, encumbrance or
other charge created by or resulting from
any act or omission
by
Landlord or those claiming by, through or
under Landlord
11. ALTERATIONS.
(a) AS IS CONDITION. Tenant
acknowledges that it or its
Affiliate owned
and operated the Leased Premises immediately
prior to the
Commencement Date. Accordingly, Tenant shall
accept
possession of the Leased Premises in its ''as is"
condition as of
the Commencement Date. Landlord makes no
warranty or
representation, express or implied, with respect
to the Leased
Premises, either as to its fitness for use,
its design or
condition, or any particular use or purpose to
which the Leased
Premises may be fit, or otherwise, or as to
quality of the
material or workmanship therein, or the
existence of any
defects, latent or patent, it being agreed
that all such
risks are to be borne by Tenant. Landlord is
under no
obligation to make any alterations, expansions,
additions,
improvem
