ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
FOR VALUABLE CONSIDERATION, the
receipt and sufficiency of
which are hereby acknowledged, CM COLUMBIA
SC, LLC, a
Delaware
limited liability company ("ASSIGNOR"), does hereby assign,
transfer and set over unto AEI INCOME &
GROWTH FUND 23
LLC, a
Delaware limited liability company, as to
an undivided
thirteen
and a half percent (13.5%) interest as a
tenant in common,
AEI
ACCREDITED INVESTOR FUND V LP, a Minnesota
limited
partnership,
as to an undivided forty-five percent
(45%) interest as a tenant
in common, and AEI ACCREDITED INVESTOR FUND 2002 LIMITED
PARTNERSHIP, a Minnesota limited
partnership, as to an
undivided
forty-one and a half percent (41.5%) interest as
a tenant in
common, (collectively, "ASSIGNEE"), all of Assignor's right,
title, interest, claim and estate as
landlord in and to the Lease
Agreement set forth on EXHIBIT A attached
hereto (the "LEASE
AGREEMENT"), which demise any part of that
certain real
property
situated in the Columbia, South Carolina, and
more particularly
described in EXHIBIT B attached hereto (the
"PROPERTY"), or
any
improvements thereon, PROVIDED, HOWEVER, that,
notwithstanding
anything to the contrary set forth herein
or in the Agreement (as
defined below): (i) Assignor shall retain any and
all rights and
claims under the Lease Agreement with
respect to any indemnities
or similar rights to payment (whether in the
form of additional
rent or otherwise) with respect to events or circumstances
occurring or existing prior to the date hereof,
whenever such
indemnities or similar rights arise, and
(ii) Assignor shall
remain liable for any claims against the
landlord under the Lease
for indemnity obligations (whether payable
as damages, as a
setoff under the Lease, or otherwise) arising
from events or
circumstances occurring prior to the
Closing Date, whenever
such
indemnities arise. Assignee shall cooperate with
Assignor, at
Assignor's request and expense, in
collecting payment of any such
indemnity or similar right to payment against
the tenant under
the Lease Agreement or otherwise.
Capitalized
terms used in this
Assignment or the
exhibits
attached hereto and not otherwise defined
herein shall have
the
meanings ascribed to them in that certain
Purchase Agreement,
dated as of August 1, 2005 (as amended, the
"AGREEMENT"), by
and
between Assignor, as Seller, and AEI Fund
Management, Inc..
(who
assigned its rights under such Agreement to
Assignee), as Buyer.
Assignor
represents and
warrants to Assignee that Assignor
has full power, authority and right to
execute and deliver
this
Assignment.
Assignee
hereby assumes all of the obligations on the
Assignor's part to be observed and
performed from and
after the
date hereof by the landlord under the
Lease Agreement.
Assignee
hereby agrees to indemnify and hold
harmless Assignor from
and
against any and all liability, claims,
loss, costs, damage
and
expense (including reasonable attorneys' fees
and costs, and
court costs) directly or indirectly arising
out of or related
to
any breach or default in Assignee's
obligations under the
Lease
Agreement or in Assignee's obligations
hereunder, from and
after
the date of this Assignment.
Assignor
hereby agrees to indemnify and hold harmless
Assignee from and against any and all liability,
claims, loss,
costs, damage and expense (including
reasonable attorneys'
fees
and costs, and court costs) directly or
indirectly arising out of
or related to any breach or default in
Assignor's
obligations
under the Lease Agreement, prior to the
date of this Assignment.
This
Assignment
shall be construed
under and enforced
in
accordance with the laws of the State of
South Carolina.
This
Assignment
and Assumption of
Lease Agreement may
be
relied upon as conclusive proof that each
and all of the
Lease
Agreement have been transferred to
Assignee.
This
Assignment and
Assumption of Lease Agreement shall be
binding upon Assignor, Assignee and their respective legal
representatives, successors and
assigns.
In the event any
action or suit is brought by a party hereto
against another party hereto by reason of
any breach of any
of
the covenants, conditions, agreements
or provisions on the
part
of such other party arising out of this Assignment, the
prevailing party shall be entitled to have
and recover
of and
from the other party all costs and expenses
of the action or
suit, including reasonable attorneys'
fees.
This
Assignment
may be executed in
counterparts, each
of
which shall be deemed an original, but all of
which, together,
shall constitute one and the same
instrument.
IN WITNESS WHEREOF, this Assignment
and Assumption of Lease
Agreement has been executed as of September
__, 2005.
WITNESSES:
ASSIGNOR:
CM COLUMBIA SC, LLC, a Delaware
/s/ Esmael Hill
limited liability company
(Witness #1)
By: SunTrust Equity Funding,
/s/ Sarah Hughes
LLC, a Delaware limited
(Witness #2)
liability company, its
manager
By: /s/ R Todd
Shutley
Name: R. Todd
Shutley
Title: Senior Vice
President
and Manager
ATTEST:
(Assistant) Secretary
WITNESSES:
ASSIGNEE:
/s/ M. Lattimore
AEI INCOME & GROWTH FUND 23,
(Witness #1)
LLC, a Delaware limited
liability company
/s/ Jennifer L Shcrinner
(Witness #2)
By: AEI Fund
Management XXI,
Inc., a Minnesota
corporation, its Managing
Member
By: /s/ Robert P
Johnson
Name: Robert P.
Johnson
Title: President
WITNESSES:
AEI ACCREDITED INVESTOR FUND V
LP, a Minnesota limited
/s/ M Lattimore
partnership
(Witness #1)
/s/ Jennifer Schreiner
By: AEI Fund
Management XVIII,
(Witness #2)
Inc., a Minnesota
corporation, its General
Partner
By: /s/ Robert P Johnson
Name: Robert P.
Johnson
Title: President
WITNESSES:
AEI ACCREDITED INVESTOR FUND
2002 LIMITED PARTNERSHIP, a
/s/ M Lattimore
Minnesota limited partnership
(Witness #1)
/s/ Jennifer L Schriner
By: AEI Fund Management XVIII,
(Witness #2)
Inc., a Minnesota
corporation, its General
Partner
By: /s/ Robert P
Johnson
Name:
Robert P. Johnson
Title:
President
STATE OF GEORGIA
COUNTY OF FULTON
Personally
appeared before me Esmael Hill (Witness #1), who
made oath that s/he saw the seal of the
within named R. Todd
Shutley, Senior Vice President and Manager
of SunTrust Equity
Funding, LLC, the manager of CM Columbia
SC, LLC, affixed to the
foregoing instrument and that s/he with
Sarah Hughes (Witness #2)
witnessed the execution and delivery
thereof as the act and deed
of said company.
Sworn to before
me, this 15 day of September, 2005.
/s/ Sarah Hughes
(SEAL)
/s/ Esmael Hill
Witness #2 [Is also Notary Public]
(Witness #1)
My commission expires: _________
STATE OF MINNESOTA )
COUNTY OF RAMSEY )
Personally
appeared before me Marni Lattimore (Witness #1),
who made oath that s/he saw the seal of the
within named Robert
P. Johnson, President of AEI Fund
Management XXI, Inc., the
Managing Member of AEI Income & Growth
Fund 23 LLC, affixed to
the foregoing instrument and that s/he with
Jennifer L. Schreiner
(Witness #2) witnessed the execution and
delivery thereof as the
act and deed of said company.
Sworn to before
me, this 15 day of September, 2005.
/s/ Jennifer L
Schreiner (SEAL)
/s/ M. Lattimore
Witness #2 [Is
also Notary Public]
(Witness #1)
My commission
expires: _________
STATE OF MINNESOTA )
COUNTY OF RAMSEY )
Personally
appeared before me Marni Lattimore (Witness #1),
who made oath that s/he saw the seal of the
within named Robert
P. Johnson, President of AEI Fund
Management XVIII, Inc., the
General Partner of AEI Accredited Investor
Fund V LP, affixed to
the foregoing instrument and that s/he with
Jennifer L. Schreiner
(Witness #2) witnessed the execution and
delivery thereof as the
act and deed of said company.
Sworn to before
me, this 15 day of September, 2005.
/s/ Jennifer L
Schreiner (SEAL)
/s/ M Lattimore
Witness #2 [Is
also Notary Public]
(Witness #1)
My
commission expires: _________
STATE OF MINNESOTA )
COUNTY OF RAMSEY )
Personally
appeared before me Marni Lattimore (Witness #1),
who made oath that s/he saw the seal of the
within named Robert
P. Johnson, President
___________________________ of AEI Fund
Management XVIII, Inc., the General Partner
of AEI Accredited
Investor Fund 2002 Limited Partnership,
affixed to the foregoing
instrument and that s/he with Jennifer L.
Schreiner (Witness #2)
witnessed the execution and delivery
thereof as the act and deed
of said company.
Sworn to before
me, this 15 day of September, 2005.
/s/ Jennifer L
Schreiner (SEAL)
/s/ M Lattimore
Witness #2 [Is
also Notary Public]
(Witness #1)
My
commission expires: _________
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION
OF LEASE AGREEMENT
That certain Lease Agreement, dated as of February
24, 2005,
between CM Columbia SC, LLC (Landlord) and CarMax, Inc.
(Tenant),, as evidenced by that certain
Memorandum
of Lease
recorded on February 25, 2005 in Record
Book 9932 at Page
234,
Office of the Register of Deeds for
Lexington County, said
lease
thereafter assigned to CarMax Auto Superstores, Inc., as
evidenced by that certain Assignment of
Lease recorded
February
25, 2005 in Record Book 9932 at Page
238, Office of the Register
of Deeds for Lexington County.
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION
OF LEASE AGREEMENT
Legal description
All that certain piece, parcel, lot or tract, with any
Improvements therein, situate, lying and
being near the City
of Columbia, County of Lexington,
State of South
Carolina,
being shown and delineated as 15.514
acres (675,793
square
feet) on a plat prepared for CarMax Auto
Superstores, Inc.,
by B.P. Barber & Associates, Inc.,
dated August 17,
2005,
and having the following metes & bounds
to-wit:
COMMENCING at a 1/2" rebar in 3" concrete at the
intersection of the eastern right-of-way of Chippenham
Circle and the southern right-of-way of Jamil Road (a
southwestern frontage road of I-26), thence
proceeding along
the southern right-of-way of Jamil Road the following
courses and distances: in a direction of
S84 07'24"E for
a
distance of 90.70' to a 1/2" rebar in 3"
concrete, thence in
a direction of S26 53' 14"E for a
distance of 46.20' to
a
5/8" rebar, and then in a direction of
N76 13'36"E
for a
distance of 76.14' to a 5/8" rebar, this
being the Point of
Beginning. Thence turning and proceeding
along the southern
right-of-way of Jamil Road the following courses and
distances: in a direction of N76
13'36"E for a distance
of
39.17' to a mag nail, thence in a direction
of S84 09'00"E
for a distance of 322.91' to a 5/8"
rebar, thence along
a
curve to the right in a direction of S80
53'19"E for a chord
distance of 67.78' to a 5/8" rebar (said
curve having an arc
distance of 67.81' and a radius of
636.62'), and then in
a
direction of S57 23'00"E for a distance of
386.50' to a
railroad spike; thence turning and proceeding along the
properties of Eugene Foust and Alexander
Washington Estate
in a direction of S64 45'36"W for a
distance of 563.31' to a
1/4" pipe; thence turning and
proceeding along the property
of Alexander Washington Estate the following
courses and
distances: in a direction of S75'5 1'55"W
for a distance of
85.00' to a 1/4" pinched top pipe, thence
in a direction of
S33 01'09"E for a distance of 185.82' to a
1/4" pipe, thence
in a direction of S23 24'01 "E for a
distance of 260.06' to
a 1/4" pipe, and then in a direction
of S27 11'40"E for
a
distance of 93.83' to a 5/8" rebar; thence turning and
proceeding along the property of CarMax Auto
Superstores,
Inc., the following courses and distances:
in a direction of
S66 32'20"W for a distance of 432.83' to a 5/8" rebar,
thence in a direction of N23 27'40"W for
a distance of
37.00' to a 5/8" rebar, and then in a direction of
S66 32'20"W for a distance of 180.35' to a 5/8" rebar;
thence turning and proceeding along the
property of
Grove
Park Development Company in a direction of
N25 10'25"W for a
distance of 538.46' to a 5/8" rebar;
thence turning and
proceeding along the property of CarMax Auto
Superstores,
Inc., the following courses and distances:
in a direction of
N66 32'20"E for a distance of 200.23' to
a 5/8'' rebar,
thence in a direction of N23 26'45"W for
a distance of
169.50' to a 5/8" rebar, thence in a direction of
N46 01'32"E for a distance of 202.19' to a 5/8" rebar,
thence in a direction of N28 50' 11 "E for a
distance of
220.73' to a 5/8" rebar, and then in a direction of
N12 49'41"E for a distance of 138.90' to a
5/8" rebar, this
being the Point of Beginning.
This parcel contains 15.514 acres (675,793
square feet).
LEASE
Between
CARMAX, INC.,
as TENANT
and
CM COLUMBIA SC, LLC,
as Landlord
Date February 24, 2005
TABLE OF CONTENTS
1. CERTAIN DEFINITIONS
1
2. DEMISE OF PREMISES
4
3. TERM
4
4. RENT
5
5. NET LEASE; TRUE LEASE
6
6. TITLE AND CONDITION
7
7. TAXES
8
8. USE
9
9. MAINTENANCE AND REPAIR
10
10. LIENS
11
11. ALTERATIONS
11
12. CONDEMNATION
12
13. INSURANCE
13
14. DAMAGE, DESTRUCTION
14
15. RESTORATION
16
16. SUBORDINATION TO FINANCING
17
17. ASSIGNMENT, SUBLEASING
18
18. PERMITTED CONTESTS
21
19. DEFAULT
22
20. LANDLORD'S REMEDIES
23
21. NOTICES
25
22. MEMORANDUM OF LEASE; ESTOPPEL
CERTIFICATES
25
23. SURRENDER
26
24. NO MERGER OF TITLE
26
25. LANDLORD EXCULPATION
26
26. HAZARDOUS SUBSTANCES
27
27. ENTRY BY LANDLORD
28
28. STATEMENTS
28
29. CONFIDENTIALITY
28
30. NO USURY
28
31. BROKER
28
32. WAIVER OF LANDLORD'S LIEN
29
33. NO WAIVER; CONSENTS
29
34. SEPARABILITY
29
35. INDEMNIFICATIONS
29
36. EASEMENTS, ZONING AND ENTITLEMENTS
30
37. HEADINGS
31
38. MODIFICATIONS
31
39. SUCCESSORS, ASSIGNS
31
40. COUNTERPARTS
31
41. GOVERNING LAW
32
42. EXPANSION LAND
32
THIS LEASE AGREEMENT is made
as of this day of
February, 2005,
by and between CM BOLUMBIA SC, LLC, a
Delaware limited liability
company, having its principal office at c/o
SunTrust Equity Funding
LLC, 303 Peachtree Street, 24th Floor, Mail
Code 3951, Atlanta,
Georgia 30308 ("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 the
Prime Rate plus 200 hundred basis points.
(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/markets/rates/index.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) "Event of Default" shall mean an
Event of Default as
defined in
Paragraph 19.
(k) "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.
(l) "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.
(m) "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.
(n) "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.
(o) "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.
(p) "Mortgage" shall mean a mortgage
or similar security
instrument
hereafter executed covering the Leased Premises
from Landlord to
Lender.
(q)
"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.
(r)
"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).
(s) "Prime Rate"
shall mean the prime rate of interest
as published in the Wall Street Journal
from time to time.
(t) "Proceeds" shall mean the entire
proceeds paid by any
third party
insurer under any property casualty insurance
maintained
pursuant to Paragraph 13(a).
(u) "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.
(v)
"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.
(w) "State"
shall mean the State or Commonwealth in
which the Leased
Premises are situated.
(x) "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.
(y)
"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').
(z) "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.
(aa)
"Term" shall mean the initial term of this Lease,
as extended
pursuant to any renewal that has become
effective.
(bb)
"Termination Date" shall mean the Termination Date
as defined in
Paragraph 12(b).
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 February 28,
2020
(the "Expiration Date"). 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. 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 Date
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:
SunTrust Equity Funding, LLC
ABA #061000104
Acct#
Ref:
CarMax
Attn: Noelle Wilds
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 term "Base Month" shall
mean the
calendar month which is one (1) year 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: each anniversary of the Commencement
Date throughout
the Term (each, a "Basic Rent Adjustment Date")
the Basic Rent
then in effect shall
immediately be increased by
the lesser of
(i) three hundred percent (300%) 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 Month; 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.
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.
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
