(The Above Space for Recorder's Use Only)
ASSIGNMENT AND
ASSUMPTION OF LEASE AND GUARANTY
THIS
ASSIGNMENT
AND ASSUMPTION OF LEASE AND GUARANTY
("Assignment") is made and entered into
this 22 day of
November,
2005 by and among LAFAYETTE VILLAGE,
L.L.C., a Virginia limited
liability company ("Assignor") and AEI AEI
INCOME & GROWTH
FUND
25 LLC, a Delaware limited liability
company ("Assignee").
RECITALS
WHEREAS,
Captec Ster Aurora, LLC, a Illinois limited
liability company (collectively "Tenant") is
the tenant under
that certain lease, dated as of October 14,
1999 (as the same may
have been modified, supplemented, amended or assigned, the
"Lease"), between Duke-Weeks Realty Limited Partnership, an
Indiana limited partnership ("Original
Landlord") and Tenant
and
pursuant to which Lease, Tenant leases that
certain premises
described on Exhibit A attached hereto and
incorporated herein by
this reference, in Aurora, DuPage County, Illinois (the
"Premises").
WHEREAS,
Sterling Jewelers Inc., a Delaware corporation
("Guarantor") has executed a Unconditional
Guaranty of Lease
dated October 8, 1999 (the "Guaranty");
WHEREAS, a
Memorandum of Lease was recorded on June 12, 2000
as Document R2000-087967, in the DuPage
County Recorder's Office;
WHEREAS,
Tenant merged with Commercial Net
Lease Realty,
Inc., a Maryland corporation, and
Commercial Net Lease
Realty,
Inc. is now Tenant under the Lease because
of such merger.
WHEREAS,
Original Landlord conveyed the Premises to Assignor
on March 27, 2003 in that certain
Special Warranty Deed recorded
on April 4, 2003 at R2003-127961, in the
DuPage County Recorder's
Office, and assigned the Lease to Assignor
by that Assignment and
Assumption of Lease dated March 27,
2003.
WHEREAS,
on the date hereof, Assignor is
conveying the
Premises to Assignee pursuant to the terms
and conditions of that
certain Agreement of Purchase and Sale Agreement
dated as of
September 21, 2005 between Assignor, as
Seller, and Assignee,
as
Purchaser (as subsequently amended, collectively
the "Purchase
Agreement").
WHEREAS,
in connection with
Assignor's conveyance
of the
Premises, Assignor desires to assign its right, title and
interest in and to the Lease and the Guaranty
to Assignee
and
Assignee desires to accept the assignment
thereof and assume
Assignor's right, title and interest in and
to the Lease and
the
Guaranty.
NOW,
THEREFORE,
for good and valuable
consideration, the
receipt and sufficiency of which is hereby
acknowledged, Assignor
and Assignee agree as of the date
hereof (the "Effective Date"),
as follows:
1. As of the Effective Date,
Assignor hereby gives, grants,
bargains, sells, conveys, transfers and sets over unto
Assignee,
its successors and assigns, all of Assignor's right, title and
interest in and to the Lease and the Guaranty.
2. Assignee hereby accepts the
foregoing assignment, and hereby
assumes and agrees to be bound by and perform all of Assignor's
obligations and liabilities to be performed and/or occurring
under the Lease or the Guaranty on or after the Effective Date.
3. Assignor hereby agrees to indemnify, defend
and hold
Assignee harmless from any liability, loss, cost or expense
arising out of a failure to perform the obligations of Landlord
under the Lease accruing prior to the Effective Date. Assignee
hereby agrees to indemnify, defend and hold Assignor harmless
from any liability, loss, cost or expense arising out of a
failure to perform the obligations of Landlord under the Lease
accruing from and after the Effective Date.
4. Assignee hereby agrees that
Assignor may, at Assignor's
election and expense, proceed at law or equity to collect any
delinquent rents accruing under the Lease prior to the
Effective
Date.
Assignor hereby agrees
that Assignee shall have no
obligation to collect any rent due prior to the Effective Date
under the Lease; provided, however, that in the event Assignee
is
paid rent from a tenant that has delinquent rent accruing prior
to the Effective Date, and such payment is in excess of current
rent due and payable under the Lease and any collection costs
incurred by Assignee to collect such rents, then Assignee
agrees
to pay such
excess amount to Assignor as soon as reasonably
practicable after the date of receipt by Assignee. In the event
that Assignor is paid any rents after the Effective Date,
Assignor agrees to pay such to Assignee as soon as reasonably
practicable after the date of receipt by Assignor.
5. If any action is instituted
by Assignor or Assignee for the
purpose of enforcing or interpreting any provision of this
Assignment, the prevailing party in such action shall be
entitled
to its reasonable attorneys' fees, costs and other expenses,
provided, however, there shall be no prevailing party in a
pretrial motion, voluntary dismissal, favorable settlement or
otherwise, other than entry of a final judgment and such fees,
costs and expenses may be recovered in the same action or in a
separate proceeding.
6. This Assignment shall be governed and construed in
accordance with the laws of the State of Illinois.
7. This Assignment shall be
binding on the parties hereto and
their respective successors and assigns.
8. This Agreement may be
executed in several counterparts, each
of which shall be deemed an original, and all of which together
shall constitute one and the same instrument.
IN WITNESS
WHEREOF, Assignor and Assignee have executed this
Assignment as of the date and year first
above written.
"ASSIGNOR"
LAFAYETTE VILLAGE, LLC,
a Virginia limited liability company
By: /s/ Larry D
Silver
Larry D. Silver, Member/CEO
STATE OF Virginia
)
) ss.
COUNTY Fredericksburg )
The foregoing instrument was
acknowledged before me this 28 day
of October, 2005, by Larry D. Silver,
Member/CEO, of
LaFayette
Village, L.L.C., a Virginia limited
liability company, on
behalf
of said company.
[Seal]
/s/ Joyce B Marsh
Print Name: Joyce B
Marsh
My Commission Expires: 10-31-05
"ASSIGNEE"
AEI INCOME & GROWTH FUND 25 LLC,
a Delaware limited liability company
By: AEI Fund
Management XXI, Inc.,
a Minnesota
corporation,
its
Managing Member
By: /s/ Robert P
Johnson
Name: Robert P
Johnson
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY
)
The foregoing was acknowledged before me this ____ day of
November, 2005, by Robert P Johnson, in
his/her capacity as
the
President of AEI Fund Management XXI, Inc., a Minnesota
corporation, the Managing Member of AEI
Income & Growth
Fund 25
LLC, a Delaware limited liability
company, who acknowledged the
execution of the foregoing instrument to be
the voluntary act and
deed of said corporation by authority of
its board of directors
on behalf of the company.
[Seal]
/s/ Jennifer L Schreiner
Print Name: Jennifer L Schreiner
My Commission Expires: 1-31-2010
EXHIBIT A
(Legal Description)
Parcel 1:
Lot 1 in Meridian Business Campus Phase 2
Unit 8, being a
Subdivision in Section 16, Township 38
North, Range 9, East of
the Third Principal Meridian, according to
the Plat thereof
recorded October 30, 1998 as Document
R98-226549, in DuPage
County, Illinois.
Parcel 2:
Easement for the benefit of Parcel 1 as
created by Declaration of
Covenants, Conditions and Restrictions
recorded January 6, 1999
as Document R99-002872 made by MBC
Partners, L.P. for access
between adjoining lots and public highways
as shown as 32'
ingress and egress easement on the Plat
recorded October 30, 1998
as Document R98-226549, in DuPage County,
Illinois.
(Building and improvements excluded)
PIN 07-16-400-026
Common Address: 1016 North Route 59
Aurora, Illinois
NET GROUND LEASE
DUKE WEEKS RALTY LIMITED PARTNERSHIP
An Indiana limited partnership
"LANDLORD"
and
CAPTEC STER AURORA LLC
An Illinois limited liability company
Index
ARTICLE I -LEASE OF PREMISES
1
Section 1.01
Basic Lease
Provisions
Section 1.02
Lease of
Premises.
ARTICLE 2 -TERM, DELIVERY AND
POSSESSION
Section 2.01
Tenn.
Section 2.02.
Option to Renew
Section 2.03.
Landlord's Delivery
Obligations
Section 2.04.
Holding Over
ARTICLE 3
-TENANT'S CONSTRUCTION WORK
Section 3.01.
Inspection Period.
Section 3.02.
Plan Approval
Period.
Section 3.03.
Construction 7
Section 3.04.
Ownership of
Improvements upon Lease
Tennination. :
ARTICLE 4 -RENT
Section 4.01.
Minimum Annual
Rent
Section 4.02.
Late Charges.
Section 4.03.
Partial Payment.
Section 4.04.
Net Lease.
ARTICLE 5 -PAYMENT OF TAXES, ASSESSMENTS,
ETC 10
Section 5.01.
Tenant's Payment
Obligations.
Section 5.02.
Taxation Method.
Section 5.03.
Payment Statement.
Section 5.04.
Contesting
Impositions.
ARTICLE 6- SURRENDER
Section 6.01.
Condition of Leased
Premises
Section 6.02.
Repair
Obligations.
Section 6.03.
Abandonment.
Section 6.04.
Survival.
ARTICLE 7 -INSURANCE
Section 7.01.
Pre-construction and Construction
Requirements.
Section 7.02.
Lease Tenn Requirements.
Section 7.03.
Mortgagees
ARTICLE 8 -LANDLORD'S RIGHT TO PERFORM
TENANT'S COVENANTS
Section 8.01.
Landlord's Rights.
Section 8.02.
Mortgagees' Rights
ARTICLE 9- REPAIR AND MAINTENANCE OF THE
LEASED PREMISES
Section 9.01.
Tenant's Obligations
Section 9.02.
Landlord's Non-responsibility.
ARTICLE 10- COMPLIANCE WITH LA WS,
ORDINANCES, ETC
Section 10.01.
Compliance
with Applicable Laws and
Ordinances
Section 10.02.
Compliance
with Insurance Policies.
ARTICLE 11 DISCHARGE OF LIENS
Section 11.01.
Liens
Prohibited. ,
Section 11.02.
Discharge
of Liens.
ARTICLE 12 USE OF LEASED PREMISES
Section 12.01.
Use
Allowed.
Section 12.02.
Uses Not
Allowed.
Section 12.03.
Exclusive
Use.
ARTICLE 13 -UTILITIES
ARTICLE 14- AL TERA TIONS TO THE LEASED
PREMISES
Section 14.01.
Alterations.
Section 14.02.
Tenant
Requirements
ARTICLE 15 .LANDLORD'S ENTRY
Section 15.01.
Inspection, Repairs, and Compliance
ARTICLE 16 -INDEMNIFICA TION
Section 16.01.
Indemnification.
Section 16.02.
Obligation
to Defend
ARTICLE 17 CONDEMNATION AND CASUAL TY
Section 17.01.
Award
Section 17.02.
Termination of Lease
Section 17.03.
Partial
Taking.
Section 17.04.
Repair
Obligations.
ARTICLE 18 .ASSIGNMENT
Section 18.01.
Landlord's
Consent Required.
Section 18.02.
Documentation.
ARTICLE 19 DEFAULT AND REMEDIES
Section 19.01.
Events of
Default
Section 19.02.
Remedies.
ARTICLE 20. TRANSFERS BY LANDLORD
Section 20.01.
Sale of
the Leased Premises.
Section 20.02.
Subordination and Estoppel Certificate.
Section 20.03.
limitation
of Landlord's liability.
ARTICLE 21- TENANT'S AND LANDLORD'S
RESPONSIBILITY REGARDING
ENVIRONMENTAL
LAWS AND HAZARDOUS SUBSTANCES
Section 21.01.
Environmental Definitions.
Section 21.02.
Compliance.
Section 21.03.
Restrictions on Tenant :
Section 21.04.
Notices,
Affidavits, Etc.
Section 21.05.
Landlord's
Rights
Section 21.06.
Indemnification.
Section 21.07.
Existing
Conditions.
ARTICLE 22- MORTGAGE FINANCING
Section 22.01.
Leasehold
Mortgage
Section 22.02.
Rights of
Leasehold Mortgagee
Section 22.03.
Tenant's
Mortgage Obligations
ARTICLE 23 -MISCELLANEOUS
Section 23.01.
Benefit of
Landlord and Tenant.
Section 23.02.
Governing
Law.
Section
23.03. Guaranty.
Section 23.04.
Examination of Lease.
Section 23.05.
Indemnification for Leasing Commissions.
Section 23.06.
Notices
Section 23.07.
Partial
Invalidity; Complete Agreement
Section 23.08.
Financial
Statements.
Section 23.09.
Representations and Warranties.
Section 23. 10.
Agency Disclosure.
Section 23./1.
Memorandum
of Lease.
Section 23.12.
Security
Deposit.
Section
23. 13.
Development Common Areas.
Section 23.14.
Quiet
Enjoyment
Section 23.15.
Easement
for Ingress and Egress
Section 23.16.
Costs and
Attorneys' Fees.
Section 23.17.
Cooperation
Section 23.18.
Representations and Covenants of Landlord.
Section 23.19.
Breach of
Covenant by the Parties.
Section
23.20. Tenants
Continuous Use Obligation.
Section 23.21.
Force
Majeure
Section 23.22.
Tenant's
Continuous Use Obligation.
Exhibits
Exhibit A: Site Plan
Exhibit A-I : Leased Premises Legal Description
(to be attached
after Lease execution)
Exhibit B: Initial Estoppel
Certificate
Exhibit C: Declaration
Exhibit D: [Intentionally
Omitted.]
Exhibit E: Unconditional
Guaranty of Lease
Exhibit F: Tenants
Prototypical Plans and Specifications
NET GROUND LEASE
THIS NET GROUND
LEASE ("Lease"), made this 14th day of
October 1999, by and between DUKE- WEEKS
REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership
("Landlord"), and
CAPTEC STER AURORA LLC, an Illinois limited
liability company
("Tenant").
WITNESSETH:
ARTICLE 1 -LEASE OF PREMISES --
SECTION 1.01. BASIC LEASE PROVISIONS.
The following constitute the "Basic Lease
Provisions" of this
Lease:
A. Development Name and
Address: Meridian Shopping Center
Northwest comer of Route 59
and Meridian Pkwy.
Aurora, IL 60504
B. Leased Premises: Certain
real estate consisting of
approximately
2.1 acres, as further described in Section
1.02 below
C. Lease Term: The Lease Term
shall consist of the Preliminary
Term, the
Initial Term, and any Extension Terms pursuant to
Section
2.02:
Preliminary Term: The period commencing on the
Lease
Commencement Date and expiring on the Rental
Commencement Date unless earlier terminated as
provided in Section 3.01D;
Initial Term: The period commencing on the
Rental Commencement
Date and expiring twenty (20) years and zero (0)
months thereafter unless earlier terminated as
provided herein;
C-l. Options to
Renew: Four (4) options to renew for periods
of five (5) years each;
D. Minimum Annual Rent:
Preliminary Term:
See Item E below;
Initial Term: Years 1-5
$120,000.00 per year;
Years 6-10 $132,000.00 per
year;
Years 11-15 $145,200.00 per
year;
Years 16-20 $159,720.00 per
year;
Extension Terms: Years
21-25
$175,692.00 per year;
Years 26-30 $193,261.20 per
year;
Years 31-35 $212,587.32 per
year;
Years 36-40 $233,846.05 per
year;
E. Monthly Rental
Installments:
Preliminary
Term:
Lease
Commencement Date to Rental Commencement Date: $0.00
per month;
Initial Term:
Months 1-60
$10,000.00 per month;
Months 61-120
$11,000.00 per month;
Months 121-180 $12,100.00
per month;
Months 181-240 $13,310.00
per month;
Extension Terms: Months 241-300 $14,641.00
per month;
Months 301-360 $16,105.10
per month;
Months 361-420 $17,715.61
per month;
Months 421-470 $19,487.17
per month;
F . LEASE COMMENCEMENT DATE:
The date
on which the later of
the parties hereto executes this Lease;
G. RENTAL COMMENCEMENT DATE:
The date which is the earlier of
(i) the initial
opening of Tenant's business on the Leased
Premises, or
(ii) one hundred twenty (120) days after
expiration of
the Inspection Period, as hereinafter defined;
H. SECURITY DEPOSIT: None;
I. BROKERS: Duke- Weeks Realty Limited
Partnership
representing
Landlord and Allen R. Joffe, Baum Realty Group,
Inc./Pacific
Realty Partners representing Tenant;
J. PERMITTED USE: The
construction of not more than two
(2) retail
buildings, which buildings shall not exceed
10,000 total
square feet, for the retail sale of jewelry,
diamonds, gold,
silver, colored gemstones, watches, clocks,
crystal,
porcelain and gift items, and such other related
items normally
sold in other "Jared-The Galleria of Jewelry"
stores, and, as
incidental thereto, the repairs, handling,
and/or the
appraisal of the same, or any lawful retail use
which does not
conflict with any existing exclusive uses or
the restrictions
set forth in the declaration affecting the
Leased Premises
attached hereto and incorporated herein as
Exhibit C
("Declarations"). Notwithstanding the foregoing,
in no event
shall the Leased Premises be used for the
operation of a
restaurant.
K. ADDRESS FOR PAYMENTS AND
NOTICES AS FOLLOWS:
Landlord:
Duke-Weeks
Realty Limited Partnership
Attn: Retail Property Management
4555 Lake Forest Drive, Suite 400
Cincinnati, OH 45242
With a Copy to: Duke-Weeks
Realty Limited Partnership
Attn: Legal Department
8888 Keystone Crossing, Suite 1200
Indianapolis, IN 46240
With Rental
Payments to:
Duke-Weeks Realty Services Limited Partnership
P .0. Box 66259
Indianapolis, IN 46266
Tenant:
Captec Ster Aurora LLC
Attn: Gary Bruder, Senior Vice President
24 Frank Lloyd Wright Drive
Lobby L 4th Floor
P.O. Box 544
Ann Arbor, MI 48106-0544
With a Copy to: Baker &
Hostetler LLP
Attn: William L. Arnold, Esq.
3200 National City Center
1900 East North Street
Cleveland, OH 44114
Sterling Jewelers Inc.
Attn: Real Estate Department
375 Ghent Road
Akron, OH 44333
Turner, Brown & Knezevic PC
Attn: David A. Lum, E,sq. -
12th Floor National City'Bank Building 629
Euclid A venue
Cleveland, OH 44114
SECTION 1.02. LEASE OF PREMISES.
Landlord
hereby leases to
Tenant and Tenant
hereby leases
from Landlord, subject to all of the terms and conditions
hereinafter set forth, certain real estate
located in the City of
Aurora,
DuPage County, lllinois, consisting of
approximately 2.1 acres as
designated on the "Site Plan" attached
hereto as Exhibit A
(the
"Leased Premises"), the legal description
of which is
attached
hereto as Exhibit A-l. The Leased Premises
are part of Landlord's
development commonly known as Meridian Shopping Center (the
"Development").
ARTICLE 2 .TERM. DELIVERY AND POSSESSION
Section 2.01. Term.
The term of this Lease (the "Original
Term") shall be
the
period of time specified in Section 1.01(C). The Rental
Commencement Date and the "Expiration Date"
shall be confirmed by
Tenant in writing within thirty (30) days after the Rental
Commencement Date by Tenant's execution of an
Initial Estoppel
Certificate in substantially the same
form as that attached
hereto as Exhibit B.
Section 2.02. Option to Renew
Provided Tenant
is not then in default beyond any applicable
notice and cure period, Tenant shall have
the option to
extend
the Term of this Lease for periods of five (5) years each
("Extension Term(s)") for up to four (4) Extension Terms if
Tenant delivers to Landlord on or before the one hundred
eightieth (180th) day prior to the
expiration of the Initial Term
or an .c Extension Term, as the case may
be, notice of its
election to extend this Lease. The terms
and conditions for
each
Extension Term shall be the same terms and
conditions
contained
in this Lease for the immediately
preceding Term except that (A)
this provision giving four (4) extension
options shall be amended
to reflect the remaining options to
extend, if any, and (B) the
Minimum Annual Rent shall be adjusted as set
forth in Section
1.01(D). If Tenant does not properly
exercise its right to extend
this Lease, this Lease, as it may be
amended from time to
time,
shall automatically terminate on the expiration of the then
current Term or Extension Term.
Section 2.03. Landlord's Delivery
Obligations.
In the event Tenant does not terminate
this Lease pursuant
to Section 3.01(D), Landlord shall deliver
the Leased Premises to
Tenant upon expiration of the Inspection Period in as-is
condition with all utilities as shown on the
Survey (hereinafter
defined) and with all access drives serving
the Leased
Premises
as shown on the Site Plan fully
constructed and open subject to
the following:
(i) The Inspection Period.
(ii)
The Notice of Objection (hereinafter defined).
(iii)
Any
matters which would be disclosed by an
accurate survey of the Leased Premises.
.
-4-
(iv)
Present and
future zoning laws, ordinances,
resolutions, and regulations of the City of
Aurora, Illinois, and
all present and future ordinances,
laws, regulations and
orders
of all boards, bureaus, commissions
and bodies of any municipal,
county, state, or federal sovereigns now
or hereafter having
or
acquiring jurisdiction of the Leased
Premises and the
use and
improvement thereof.
(v) All taxes, assessments,
water charges and sewer rents,
accrued or unaccrued, fixed or not fixed, subject to
apportionment as provided herein.
(vi)
Condition and
state of repair of the Leased
Premises as the same may be on the date
hereof with respect
to
which Tenant does not object or waives
the right to object.
THE
LEASED PREMISES IS LEASED SUBJECT TO ITS CONDITION
AS OF THE
COMMENCEMENT OF THIS LEASE AND WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND BY LANDLORD EXCEPT AS
EXPRESSLY PROVIDED
HEREIN .
(vii)
Future
easements to be
granted by
Landlord or
current easements to benefit the rest of the Development,
including but not limited to, ingress and
egress, and
parking
easements and more specifically, the II
Access Drives," and
the
"Utility Easement Area," all as generally
designated on the
Site
Plan. If any such future easements shall
affect Tenant's use
or
occupancy of the Leased Premises or impose any additional
financial obligation on Tenant, Landlord must first obtain
Tenant's consent, which consent shall not be unreasonably
withheld, conditioned or delayed, before
granting such easement.
Section 2.04. Holding Over.
If Tenant retains possession of the Leased
Premises after
the
expiration or earlier termination of this Lease,
Tenant shall
become a tenant from month to month at
One Hundred Fifty Percent
( 150% ) of the Monthly Rental Installment
for the Leased
Premises in effect upon the date of such
expiration or
earlier
termination, and otherwise upon the terms, covenants and
conditions herein specified, so far as
applicable. Acceptance
by
Landlord of rent after such expiration or earlier
termination
shall not result in a renewal of this
Lease. In the event of
a
holdover consented to by Landlord, Tenant shall vacate and
surrender the Leased Premises to Landlord
upon Tenant being given
thirty (30) days' prior written notice
from Landlord to
vacate
whether or not said notice is given on the
rent paying date. This
Section 2.04 shall in no way constitute a
consent by Landlord
to
any holding over by Tenant upon the expiration or earlier
termination of this Lease, nor limit
Landlord's remedies in
such
event.
ARTICLE 3 -TENANT'S CONSTRUCTION WORK
Section 3.01. Inspection Period.
A. Landlord's
Materials.
Within fifteen
(15) days of the
execution of this Lease, Landlord shall deliver
to Tenant all
documents and information respecting the
Leased Premises
within
its possession including its existing survey, title policy,
environmental report and geotechnical
report
-5-
(collectively the "Materials"). Within thirty (30) days of
Tenant's receipt of the Materials, Tenant
shall provide
written
notice to Landlord describing any title
objections or objections
regarding the environmental report.
B. Inspection
of the Leased
Premises. Tenant and
its agents
shall have the right to enter upon the
Leased Premises and
make
all engineering, environmental and
other tests and
inspections
deemed necessary to satisfy Tenant as to the
condition of
the
Leased Premises upon the date first to
occur of the
following:
(i) Tenant executes a right of entry and indemnification
agreement, or (ii) this Lease is fully
executed. All such
tests
shall be at Tenant's cost and expense. Tenant agrees to
immediately repair any and all damage to the Leased Premises
arising or resulting from such inspection by Tenant or its
agents, and Tenant shall defend, indemnify
and hold the Landlord
harmless from all claims arising or resulting from such
inspection or from the entry of Tenant or its
agents onto
the
Leased Premises for any purpose.
C. Title
and Survey. During the Inspection Period (as
hereinafter defined), Tenant, at its expense, may obtain a
leasehold policy of title insurance (the
"Title Commitment"), and
may, at its expense, obtain a staked boundary
survey of the
Leased Premises (the "Survey") prepared by
a registered land
surveyor selected by Tenant. In the' event
Tenant obtains a Title
Commitment and/or Survey pursuant to this
Section, Tenant
shall
provide written notice of any objections
to the Title Commitment
and Survey pursuant to Section 3.01(E). Notwithstanding the
foregoing, Tenant may only object to matters that: (i) in
Tenant's sole discretion, adversely affect the
Leased Premises
or. Tenant's use or occupancy
thereof; and (ii) did not appear
in the Materials.
D. Inspection Period. Tenant's
obligations under this Lease are
subject to Tenant's inspection and review
of the Leased Premises.
The term "Inspection Period" shall
mean and refer to the
period
commencing on the Lease Commencement Date and expiring on
December 31,1999. Prior to the expiration of the Inspection
Period, Tenant shall satisfy or waive any
conditions relating
to
governmental consents, approvals, and permits needed in
connection with Tenant's construction of
improvements
on the
Leased Premises or Tenant's use thereof or
terminate the Lease as
provided below. At any time before the expiration of the
Inspection Period, in the event Tenant is
unable to obtain
the
governmental consents, approvals, or
permits needed in connection
with Tenant's construction of improvements
on the Leased Premises
or Tenant's use thereof Tenant may notify
Landlord in
writing
that this Lease is terminated. Upon
Landlord's receipt of notice
of termination on or before the expiration of
the Inspection
Period, this Lease shall become null and
void and neither
party
shall have any further liabilities or obligations
under this
Lease except for those which, as expressly provided herein,
survive the termination of this Lease. If
Tenant does not
notify
Landlord in writing of its election to
declare this Leas~
null
and void on or before the expiration of the
Inspection Period,
this Lease shall no longer be contingent upon Tenant's
satisfaction of any conditions relating to
governmental consents,
approvals, and permits needed in connection with Tenant's
construction of improvements on the Leased
Premises or
Tenant's
use thereof .
E. Notice of Objection. At any time before
the expiration of
the Inspection Period, Tenant may notify
Landlord in writing
("Notice of objection") that Tenant objects
to any matters
which
prevent Tenant, in its sole discretion,
from using or
occupying
the Leased Premises as intended
hereunder. Landlord may, within
thirty (30) days after receipt of a Notice of
Objection,
use
reasonable efforts to
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resolve such objection or, if such
objection concerns any
matter
disclosed on the Title Commitment or Survey
(a "Title
Defect"),
obtain affirmative title insurance coverage insuring and
defending against any loss, cost or expense
arising out
of or
related thereto to the satisfaction of Tenant ("Affirmative
Coverage"). If Landlord is unable to correct or obtain
satisfactory Affirmative Coverage over all
defects set forth
in
the Notice of Objection to Tenant's reasonable satisfaction
within said thirty (30) days, then
Landlord shall, at any
time
before the end of said thirty-day period, so
notify Tenant
in
writing, and Tenant shall, within ten (10) days after the
Landlord has given said written notice, notify Landlord in
writing that it shall either (i) waive
said defect(s), or
(ii)
terminate this Lease. Upon Landlord's
timely receipt of notice of
termination (whether after Notice of Objection
or otherwise),
this Lease shall become null and void and no
party shall be
liable to the other for damages or
otherwise, and neither
party
shall have any further liabilities or obligations
under this
Lease except for those which, as expressly provided herein,
survive the termination of this Lease.
Section 3.02. Plan Approval Period.
Prior
to the expiration of the Inspection
Period, Tenant
shall submit to Landlord for Landlord's approval
a full and
complete set of the architectural and landscape plans and
specifications for the building shell (the
"Shell") and the
site
work for the building (the "Site Work")
which shall include
a
site dimension plan, site grading plan, site lighting plan,
proposed building pad elevations, and exterior building
elevations for Tenant's building, parking lot layout, and
pavement design, which plans and specifications shall be
substantially similar to Tenant's
prototypical plans for a "Jared-
The Galleria of Jewelry" store as
attached hereto as
Exhibit F
(the "Preliminary Plans"). Landlord
shall review the Preliminary
Plans and return the same to Tenant marked with Landlord's
reasonable objections within fifteen (15) days of Landlord's
receipt thereof from Tenant (the "Plan
Approval Period").
Tenant
shall make reasonable changes to address
Landlord's
objections
and return the revised Preliminary Plans to Landlord for
Landlord's final review and approval. If
Landlord shall fail
to
return the Preliminary Plans to Tenant with
marked changes before
the expiration of the Plan Approval Period,
the Preliminary Plans
as submitted by Tenant shall be
deemed approved by Landlord. The
plans and specifications for the building
Shell and Site Work
as
approved by Landlord shall be referred to
as the "Final
Plans."
For purposes of this Section 3.02, "reasonable
changes" shall
include changes that are necessary so that
Tenant's
Preliminary
Plans do not (i) materially reduce the
market value of the Leased
Premises or the Development below its value
immediately before
such work, (ii) adversely affect the
usefulness of the
Leased
Premises or the Development, or (iii) are
in compliance with
the
Declarations. In the event Landlord and Tenant
are unable to
agree on the Preliminary Plans, after
good faith efforts by
the
parties, then either party shall have the
right to terminate this
Lease prior to the expiration of the
Inspection Period.
Section 3.03. Construction
A. Tenant, at its sole
cost and expense, shall construct in a
good workmanlike manner all of the
improvements and
supply all
work~ labor, materials and equipment necessary
to complete the
Shell and Site Work and all improvements
in accordance with
the
Final Plans. All building and parking
improvements shall be self-
contained within the Leased Premises. All
architectural and
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engineering costs associated with the site design, public
improvements, and the Shell and Site Work
shall be paid
for by
Tenant.
B. Tenant shall, at its sole cost and
expense, construct
the
improvements for Tenant's use and occupancy of the Leased
Premises other than the Shell and Site Work
(the "Finish
Work")
including without limitation interior finishes, electric,
plumbing and heating, ventilating and air-
conditioning
work,
architectural and engineering fees for
space and all other
work,
labor and materials necessary to complete
the Finish Work, all as
more particularly set forth in plans and
specifications to
be
prepared by Tenant and delivered to Landlord (the "Interior
Plans"). Tenant represents that the Shell
and Site Work and
the
Finish Work (together, "Tenant's Work")
shall be constructed
and
shall be in compliance with all applicable
local, state and
federal laws, rules, orders, regulations,
ordinances, the
Final
Plans, and the Interior Plans.
C. Subject to Force
Majeure (as hereinafter defined), Tenant's
Work shall be completed and Tenant's
business shall be opened by
October 31, 2000.
D. Tenant shall have the right to make
changes from time
to
time in the Interior Plans without
Landlord's consent so long as
such changes shall not have a material adverse
affect on the
value of the Leased Premises. Tenant shall
not make any
other
changes to the Final Plans without Landlord's
prior review and
written approval, which approval shall not be unreasonably
withheld or delayed.
E. Tenant shall deliver to Landlord copies
of as-built plans
and specifications showing the reasonable detail of major
improvements after completion of such
improvements.
F. On completion of any building, or of
any other improvement
requiring the same, Tenant will procure a final
Certificate of
Occupancy and deliver to Landlord a copy
thereof.
G. Upon completion of
Tenant's Work, Tenant shall restore any
and all portions of the Development damaged
during performance of
Tenant's Work by Tenant or its contractors,
agents or
employees
to substantially the same condition as existed
before Tenant
commenced Tenant's Work.
Section 3.04. Ownership of Improvements
upon Lease Termination.
Any and all buildings, structures,
alterations, addition~
and
improvements (specifically excluding
Tenant's personal
property,
inventory, trade fixtures and signage) upon
the Leased
Premises
(the "Improvements") shall be the
property of Landlord and shall
be surrendered to Landlord in
accordance with the provisions of
Article 6 hereof.
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ARTICLE 4-RENT Section 4.01
Minimum Annual Rent.
Commencing on the Rental Commencement Date,
Tenant shall pay
to
Landlord as Minimum Annual Rent for the
Leased Premises the
sum
specified in Item D of the Basic Lease Provisions
payable in
equal consecutive Monthly Rental
Installments as
specified in
Item E of the Basic Lease Provisions in
advance and, except
as
otherwise provided herein, without demand, deduction,
counterclaim or offset and without relief
from valuation and
appraisement laws, on or before the first
day of each and
every
calendar month during the term of this
Lease. If the Rental
Commencement Date shall be a day other than
the first day
of a
calendar month or the Expiration Date shall
be a day other
than
the last day of a calendar month, the
Monthly Rental Installment
for such first or last fractional
month shall be prorated on the
basis of the number of days during the
month this Lease was
in
effect in relation to the total number of
days in such month.
Section 4.02. Late Charges.
In the event any Monthly Installment Rent
or any other monetary
obligation required to be paid by Tenant to
Landlord under
this
Lease is not received by Landlord within
five (5) days of
the
date the same shall be due and payable,
Tenant shall pay a
late
charge to Landlord in the amount of five
percent (5%) per
month
of any overdue amount. In addition,
in the event that any
check
or other deposit item given by Tenant to
Landlord is
returned
unpaid or dishonored by the financial
institution upon which
it
is drawn, Tenant shall pay to Landlord, upon
demand, a service
charge of One Hundred Dollars ($100.00).
Landlord and
Tenant
agree that the above- stated charges are
designed to
reimburse
Landlord for additional costs and expenses
incurred by
Landlord
in connection with the collection, handling and
processing
of
overdue installments of Rent and
additional rent and of returned
deposit items;
Section 4.03. Partial Payment.
No payment by Tenant or receipt and
acceptance by Landlord of a
lesser amount than the Minimum Annual
Rent or other payments
to
Landlord required hereunder shall be deemed
to be other than part
payment on account of the full amount then
due and payable,
nor
shall any endorsement or statement on any
check or any
letter
accompanying any check, payment of rent
or other payment be
deemed an accord and satisfaction; and
Landlord may accept
such
part payment without prejudice to
Landlord's right to recover the
balance due and payable or pursue any other
remedy in this
Lease
or at law provided.
Section 4.04. Net Lease.
It is the purpose and intent of
Landlord and Tenant that this is
a net lease and that the Minimum
Annual Rent and all other sums
payable by Tenant under this Lease shall, except as herein
otherwise provided, be absolutely net to
Landlord so that
this
Lease shall yield, net, to Landlord all sums
specified to be
received by Landlord, and that all costs, expenses and
obligations of every kind and nature
whatsoever relating to
the
Leased Premises or any improvements thereon,
except as herein
otherwise provided, which may arise or
become due during the term
of this
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Lease Term shall be paid by Tenant and that
Landlord shall
be
indemnified and saved harmless by Tenant from and
against the
same.
ARTICLE 5 -PAYMENT OF TAXES. ASSESSMENTS. ETC.
Section 5.01. Tenant's Payment
Obligations.
Tenant
shall payor cause to be paid, before any fine,
penalty, interest or cost may be added thereto
for the non-
payment thereof, all taxes (or service
payments made in lieu
of
taxes), assessments, water and sewer
rents, rates and
charges,
license fees or rentals, levies, and permit fees and other
governmental charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any
kind and nature
whatsoever (all such taxes, assessments,
water and sewer
rents,
rates and charges, levies, license and
permit fees
and other
governmental charges being hereinafter referred to as
"Impositions" and any of the same being
hereinafter referred to .
as an "Imposition") which at any time
during the term of
this
Lease are incurred or becom6 due and
payable out of or in respect
of the Leased Premises or any part
thereof or any
improvements
thereon.
Section 5.02. Taxation Method.
If at any time during the Lease Term the
methods of
taxation
prevailing at the commencement of the Lease
Term hereof shall
be
altered so that in lieu of or as a
substitute for the
whole or
any part of the Impositions imposed on real
estate and the
improvements thereon, there shall be
levied, assessed and imposed
an Imposition or charge, wholly or
partially as a capital levy or
otherwise, on the rents received there from,
or measured by
or
based in whole or in part upon the Leased
Premises and
imposed
upon Landlord, then all such
Impositions or charges or the part
thereof so measured or based, shall be deemed
to be included
within the term "Impositions" for the
purpose hereof, and Tenant
shall pay and discharge the same as
herein provided with respect
of the payment of Impositions. Tenant
shall, in addition to
the
foregoing, pay any new tax of a nature not
presently in
effect
but which may be hereafter levied, if such
tax shall be based
on
or arise out of the ownership, use or
operation of the
Leased
Premises. Notwithstanding the above,
nothing herein contained
shall require Tenant to pay (i) any transfer,
documentary,
or
stamp tax of Landlord; (ii) any tax upon
the income, profits,
or
business of Landlord, or (iii) any personal
taxes, payroll taxes,
capital levy, franchise taxes,
inheritance, or estate
taxes of
Landlord, even though such taxes may become
a lien against
the
Leased Premises or the Development.
Section 5.03. Payment Statement.
Tenant shall furnish to Landlord ( or if
requested by
Landlord,
to any fee mortgagee) at least ten (10)
days prior to the
date
when any Imposition on the Leased Premises would become
delinquent, evidence reasonably
satisfactory to Landlord or such
mortgagee, evidencing the payment
thereof.
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Section 5.04. Contesting Impositions.
Notwithstanding Section 5.03, Tenant shall
have the right to
contest in good faith by appropriate
proceedings, at
Tenant's
expense, the amount or validity in whole
or in part of any
Imposition on the Leased Premises; and Tenant
may defer payment
thereof to the extent that such deferral is
permitted by law.
If
such deferral is not permitted by law
then Tenant shall pay such
Imposition prior to contesting it.
ARTICLE 6-SURRENDER
Section 6.01. Condition of Leased
Premises.
Tenant shall, on the last day of the term or
upon any earlier
termination of this Lease, promptly and
peaceably surrender
and
deliver up the Leased Premises to Landlord in good order,
condition and repair (normal wear and tear, casualty and
condemnation excepted), free and clear of all lettings and
occupancies, and free and clear of all liens
and encumbrances
other than those, if any, of Landlord's
or existing at the Lease
Commencement Date, without any payment or
allowance whatever
by
Landlord on account of any improvements which
may be on the
Leased Premises.
Section 6.02. Repair Obligations.
Any trade fixtures installed on the Leased
Premises by Tenant
at
its own expense, such as movable
partitions, counters, shelving,
showcases, mirrors, furniture and the like,
may be removed on the
expiration or earlier termination of this Lease,
provided that
Tenant bears the cost of such removal,
and repairs at
its own
expense any and all damage to the Leased
Premises resulting
from
such removal.
Section 6.03. Abandonment.
Any personal property or trade
fixtures of Tenant which remains
in the Leased Premises after the
termination of this Lease and
the removal of Tenant from the Leased
Premises may, in Landlord's
sole discretion and upon five (5) days'
written notice to Tenant,
be deemed to have been abandoned by Tenant
and retained by
Landlord as its property or disposed of by
Landlord, without
accountability to Tenant, in such manner as
Landlord sees
fit.
Upon written notice to Tenant to such
effect, any such
disposal
shall be at Tenant's sole cost and expense-
Landlord shall not be
responsible for any loss or damage
occurring to any such property
owned by Tenant or any other person or
entity which remains
on
the Leased Premises after the expiration or
earlier termination
of this Lease, regardless of whether such loss
is caused by
negligence of Landlord or its employees,
officers, licensees,
invitees or contractors, but Landlord shall be
responsible for
its intentional misconduct or those of
its employees,
officers,
or contractors.
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Section 6.04. Survival.
The provisions of this Article 6 shall
survive any termination of
this Lease.
ARTICLE 7-INSURANCE
Section 7 .01. Pre-construction and
Construction Requirements.
Before commencing construction of the
improvements on the Leased
Premises in accordance with the provisions
of this Lease,
Tenant
shall procure and keep in effect during the period of such
construction insurance as will protect it and Landlord from
claims for damages, including coverage for
premises/operations,
underground explosion, collapse hazard, completed operations,
contractual liability and all risk property
damage with a
single
combined public liability limit of not less
than Three
Million
and 00/100 Dollars ($3,000,000.00), and property. damage
liability limits of not less than Three Million and 00/100
Dollars ($3,000,000.00), whether such
operations be by
Tenant,
its contractor or by any subcontractor,
materialmen or
anyone
directly or indirectly employed by any of
them.
Section 7.02. Lease Term Requirements.
A. All Risk Insurance. Tenant shall at
all times during
the
term of this Lease carry a policy of
insurance which insures the
Leased Premises and all improvements of any
kind and nature
(including but not limited to any additions, replacements,
alterations or improvements made fr9m time
to time), against loss
or damage by fire or other casualty
(namely, the perils
against
which insurance is afforded by a
standard fire insurance policy
and extended coverage, " All Risk" endorsement)
for the full
replacement value thereof. Tenant shall cause
Landlord and
its
mortgagee of which Tenant has been given notice, if any
("Landlord's Mortgagee"), to be named as a loss payee and
additional insured on such insurance and
shall provide that
such
insurance may not be cancelled on less than
thirty (30)
days'
prior written notice to Landlord or
Landlord's Mortgagee. Tenant
shall provide Landlord with a certificate
of insurance evidencing
such coverage.
B. Liability Insurance. Tenant shall
at all times during
the
term of this Lease carry, at its own expense, one or more
policies of general public liability and property damage
insurance, issued by one or more insurance
companies licensed
to
do business in the State of Illinois,
with the following minimum
coverages against loss of or damage or injury to any person
(including death resulting therefrom) or
property occurring
in,
on" or about the Leased Premises:
(i) Worker's Compensation
minimum statutory amount.
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(ii) Commercial General
not less than $3,000,000
Liability
Insurance,
Combined Single
Limit
including
Blanket,
for both bodily injury
Contractual
Liability
and property damage.
Broad Form
Property
Damage, Personal
Injury
Completed
Operations,
Products
Liability,
Fire Damage.
(iii) Fire
and Extended Coverage,
Vandalism and
Malicious
Mischief, and Sprinkler Leakage insurance,
for the full cost
of
replacement of Tenant's Property.
(iv) Boiler and Machinery limits
reasonably required
Insurance
by Landlord from time
to
time.
C. Such insurance policy
or policies shall protect Tenant and
Landlord as their interests may appear, naming Landlord and
Landlord's Mortgagee as additional insureds
and shall provide
that they may not be cancelled on less than
thirty (30)
days'
prior written notice to Landlord. Tenant
shall furnish
Landlord
with Certificates of Insurance
evidencing such coverage. Should
Tenant fail to carry such insurance required
to be obtained by
Tenant hereunder and furnish Landlord with certificates of
insurance after a request to do so,
Landlord shall have the right
to obtain such . insurance and collect the cost
thereof from
Tenant as additional rent.
D. Waiver of Subrogation.
Notwithstanding any provision to the
contrary, Landlord and Tenant do hereby
waive any and all
right
of recovery, claim, action or cause
of action against the other,
their respective agents and employees,
for any loss
or damage
that may occur to the Leased Premises
or the Development or
any
additions or improvements thereto, or any
contents therein,
by
reason of fire, the elements or any other
cause which is or would
be covered by any insurance required
to be maintained under this
Lease, regardless of cause or origin,
including the negligence of
Landlord or Tenant, or their respective
agents and employees. All
insurance policies carried by either party
covering the
Leased
Premises and/or the Development, including
but not limited to
contents, fire and other casualty insurance,
shall expressly
w
