ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
made this 15 day of July, 2004, by and between TRANSUGAR LIMITED
PARTNERSHIP, a Nevada limited partnership ("Assignor"), having an
address at 1605 Lake Las Vegas Parkway, Henderson, Nevada 89011,
and AEI Income & Growth Fund XXII Limited Partnership, a
Minnesota limited partnership, and AEI Accredited Investor Fund
2002 Limited Partnership, a Minnesota limited partnership (as
tenants in common, together collectively referred to as
"Assignee"); having an address of 1300 Wells Fargo Place, 30
Seventh Street East, St. Paul, Minnesota 55101.
W I T N E S S E T H:
WHEREAS, Assignor is the owner of certain real property
located at 16010 Kensington Drive, Sugar Land, TX (the
"Property") as further described on Exhibit A attached hereto and
made a part hereof;
WHEREAS, Assignor has leased the Property to Sterling
Jewelers Inc., a Delaware corporation ("Sterling"), pursuant to
that certain Lease Agreement dated December 1, 2000, as amended
by that certain First Amendment to Lease dated December 5, 2000,
as further amended by that certain Second Amendment to Lease
Agreement dated April 5, 2001 (together collectively, the
"Lease"); and
WHEREAS, Assignor desires to assign its right, title and
interest in and to the Lease to AEI Income & Growth Fund XXII
Limited Partnership, an undivided forty percent (40%) interest as
a tenant in common; and AEI Accredited Investor Fund 2002 Limited
Partnership, an undivided sixty percent (60%) interest as a
tenant in common, and Assignee desires to assume Assignor's
right, title and interest in and to the Lease;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged by each of
the parties hereto, Assignor and Assignee do hereby agree as
follows:
1. ASSIGNMENT. Assignor hereby gives, grants, bargains,
sells, conveys, transfers and sets over unto Assignee, its
successors and assigns, as of the date first above written (the
"Effective Date"), all of Assignor's right, title and interest in
and to the Lease.
2. ACCEPTANCE OF ASSIGNMENT AND ASSUMPTION. 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
on or after the Effective Date, including, without limitation,
the obligations for return of security deposits as provided in
the Lease and/or required by law, and any and all obligations for
any and all leasing commissions, brokerage fees and similar
payments which become due and payable after the Effective Date,
including, without limitation, any and all leasing commissions,
brokerage fees and similar payments which become due and payable
in connection with the exercise of any option or right under the
Lease.
3. INDEMNIFICATION. (a) Assignor hereby indemnifies
Assignee, and agrees to defend and hold harmless Assignee from
and against any and all liability, loss, damage and expense,
including without limitation reasonable attorneys' fees, which
Assignee may or shall incur under the Lease by reason of any
failure or alleged failure of Assignor to have complied with or
to have performed, before the Effective Date, the obligations of
the landlord thereunder which were to be performed before the
Effective Date.
(b) Assignee hereby indemnifies Assignor, and agrees
to defend and hold harmless Assignor from and against any and all
liability, loss, damage and expense, including without limitation
reasonable attorneys' fees, which Assignor may or shall incur
under the Lease by reason of any failure or alleged failure of
Assignee to comply with or perform, on or after the Effective
Date, all the obligations of the landlord thereunder which are to
be performed on or after the Effective Date.
4. SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns.
5. RETAINED RIGHTS. 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.
[Signatures continue on the following page]
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the day and year first set
forth above.
ASSIGNOR: TRANSUGAR LIMITED PARTNERSHIP,
a Nevada limited partnership
By: TranSugar Management Corporation,
a Nevada corporation, its managing
member
By: /s/ John R Plunkett Jr.
John R Plunkett Jr President
ASSIGNEE: AEI INCOME & GROWTH FUND XXII
Limited Partnership, a Minnesota limited
partnership
By: AEI FUND MANAGEMENT XXI, INC.,
a Minnesota corporation,
its General Partner
By: /s/ Patrick Keene
Patrick W. Keene,
its Chief Financial Officer
AEI ACCREDITED INVESTOR FUND 2002
Limited Partnership,
a Minnesota limited partnership
By: AEI FUND MANAGEMENT XVIII, INC.,
a Minnesota corporation,
its General Partner
By: /s/ Patrick Keene
Patrick W. Keene,
its Chief Financial Officer
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
The foregoing was acknowledged before me this 9 day of July,
2004, by John R. Plunkett, Jr., in his capacity as President of
TranSugar Management Corporation, a Nevada corporation, the
general partner of TranSugar Limited Partnership, a Nevada
limited partnership.
/s/ Paula M Callory
Notary Public
[notary seal]
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this day of
2004, by Patrick W. Keene, the Chief Financial Officer of AEI
FUND MANAGEMENT XXI, INC., a Minnesota corporation, the General
Partner of AEI INCOME & GROWTH FUND XXII Limited Partnership, a
Minnesota limited partnership, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal in the County and State of aforesaid, the day
and year last above-written.
/s/ Jennifer L Schreiner
Notary Public
[notary seal]
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this day of
, 2004, by Patrick W. Keene, the Chief Financial Officer of AEI
FUND MANAGEMENT XVIII, INC., a Minnesota corporation, the General
Partner of AEI Accredited Investor Fund 2002 Limited Partnership,
a Minnesota limited partnership, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal in the County and State of aforesaid, the day
and year last above-written.
/s/ Jennifer L Schreiner
Notary Public
[notary seal]
EXHIBIT A
Legal description
Being a 0.8936 acre tract of land located in the S.M. Williams
League, A-97, Fort Bend County, Texas: said 0.8936 acre tract
being all of Commercial Reserve "N" of Town Center Lakeside Phse
2, a 17.8414 acre subdivision recorded in Slide Number 2079A and
2079B of the Plat Records of Fort Bend County, Texas: said 0.8936
acre tract being more particularly described by metes and bounds
as follows (all bearings are referenced to the northwest line of
said Reserve "N"):
Beginning at an "X" found scribed in concrete for the most
northerly corner of said Reserve "N", same being the most
easterly corner of Commercial Reserve "M" of said Town Center
Lakeside Phase 2, same being on the southwest right-of-way line
of State Highway 6 (width varies) recorded Clerk's File Number
2000061504 of the Official Records of Fort Bend County, Texas and
Volume 1053, Page 58 of the Deed Records of Fort Bend County,
Texas:
1. Thence, with said southwest right-of-way line, the
northeast line of said Reserve "N", and the southwest line of
Reserve "K" (restricted to right-of-way purposes only, in the
plat of Town Center Lakeside Phase 1 recorded on Slide Numbers
1941A and 1941B of the Plat Records of Fort Bend County, Texas),
South 69 degrees 12 minutes 52 seconds East, a distance of 143.43
feet to a 5/8-inch iron rod with cap stamped "COSTEELO INC RPLS
4416" found for the northwest end of the southwest right-of-way
return at the intersection of said State Highway 6 and Kensington
Drive (width varies) recorded on Slide Number 1941AQ and 1941B of
the Plat of Records of Fort Bend County, Texas:
2. Thence, with said right-of-way return, 63.41 feet along
the arc of a curve to the right, said curve having a central
angle of 90 degrees 49 minutes 50 seconds, a radius of 40.00 feet
and a chord that bears South 23 degrees 47 minutes 57 seconds
East, a distance of 56.98 feet to a 5/8-inch iron rod with cap
stamped "COSTELLO INC RPLS 4416" found for the southeast end of
said right-of-way return, same being on the northwest right-of-
way line of said Kensington Drive:
Thence, with the southeast line of aforesaid Reserve "N" and said
northwest right-of-way line, the following four (4) courses and
distance:
3. 44.79 feet along the arc of a curve to the right, said
curve having a central angle of 03 degrees 12 minutes 29 seconds,
a radius of 800.00 feet and a chord that bears South 23 degrees
13 minutes 12 seconds West, a distance of 44.79 feet to a 5/8-
inch iron rod with cap stamped "COSTELLO INC RPLS 4416" found:
4. 11.62 feet along the arc of a curve to the left, said
curve having a cental angle of 01 degrees 18 minutes 20 seconds,
a radius of 510.00 feet and a chord that bears South 24 degrees
10 minutes 16 seconds West, a distance of 11.62 feet to a 5/8-
inch iron rod with cap stamped "COSTELLO INC RPLS 4416" found:
5. South 23 degrees 30 minutes 58 seconds West, a distance
of 76.51 feet to a 5/8-inch iron rod with cap stamped "COSTELLO
INC RPLS 4416" found:
6. 45.08 feet along the arc of a curve to the right, said
curve having a central angle of 05 degrees 16 minutes 18 seconds,
a radius of 490.00 feet and a chord that bears South 26 degrees
09 minutes 07 seconds West, a distance of 45.07 feet to an "X"
found scribed in concrete for the most southerly corner of
aforesaid Reserve "N", same being the most easterly corner of
Commercial Reserve "0-1" of Town Center Lakeside Phase 2 Replat
of Unrestricted Reserves "o & P" Amending Plat:
7. Thence, with the southwest line of said Reserve "N" and
the northeast line of said Reserve "0-1", North 69 degrees 14
minutes 29 seconds West, a distance of 172.88 feet to the most
westerly corner of said Reserve "N", same being the most
southerly corner of aforesaid Reserve "M" (monument not set, fell
on top of grate top inlet):
8. Thence, with the northwest line of said Reserve "N" and
the southeast line of said Reserve "M", North 20 degrees 45
minutes 31 seconds East, a distance of 218.30 feet to the Point
of Beginning and containing 0.8936 acres of land.
Sterling Master Form Lease
11/07/00
November 7, 2000
LEASE
BETWEEN
TRANSUGAR LIMITED PARTNERSHIP,
a Nevada limited partnership
AND
STERLING JEWELERS INC.,
a Delaware corporation
Dated: December 1, 2000
Sterling Master Form Lease
11/07/00
LEASE
In consideration of the rents and covenants set forth below,
Landlord (as hereinafter defined) hereby leases to Tenant
(as hereinafter defined), and Tenant hereby leases from
Landlord, the Premises (as hereinafter defined), upon the
following terms and conditions:
ARTICLE 1
FUNDAMENTAL LEASE PROVISIONS
The provisions in this Article shall be referred to in this
Lease as the "Fundamental Lease Provisions."
1.1 Exhibits to Lease. The following exhibits are
attached to and made a part of this Lease, and are
incorporated herein by reference:
Exhibit "A". The description of the Premises.
Exhibit "B". The site plan showing the location of
the Premises and the Building, the adjacent buildings,
parking areas, driveways and common area and containing
other general information relative to the development of the
Premises Site (the "Site Plan").
Exhibit "C". A list of the plans and specifications
prepared and provided by Tenant and approved by Landlord,
wherein are detailed Landlord's Work (as hereinafter
defined) in the Premises. Exhibit "C" shall include the
plans and specifications for Tenant's satellite dish.
Exhibit "C-l ". The list of items which comprise
Tenant's Work (as hereinafter defined).
Exhibit "D". The plans and specifications prepared
and provided by Tenant and approved by Landlord, wherein are
detailed Tenant's exterior sign(s).
Exhibit "E". The projected cost to perform
Landlord's Work.
Exhibit "F". Tenant's Trade Fixtures which shall
remain the personal property of Tenant and may be removed
upon expiration or termination of this Lease.
Exhibit "G". The Future Easement Agreement to be
executed at the closing of the Earnest Money Contract.
Sterling Master Form Lease
11/07/00
1.2 DEFINITIONS. Unless otherwise defined herein,
capitalized terms used in this
Lease shall have the meanings
listed in the Fundamental Lease
Provisions.
Assignment Agreement: shall mean that certain
agreement between Tenant, as
assignor, and Landlord, as
assignee, whereby Tenant has
assigned to Landlord all of its
rights and interest in and to the
Earnest Money Contract and Landlord
has agreed to Lease the Premises to
and develop and construct the
Premises for Tenant.
Building: shall mean the building containing
approximately 5,856 square feet of
floor area and all improvements
thereto (including Tenant's Work)
to be constructed on the Premises
and as identified on Exhibit "B"
attached hereto.
Commencement Date: shall mean the earlier of sixty
(60) days after the Delivery Date
or the day that Tenant opens for
and conducts business in the
Premises.
Construction Period: shall mean the one hundred
fifty (150) day period immediately
following the date of the closing
on the acquisition of the Premises.
Delivery Date: shall mean the date that Landlord
delivers the Premises to Tenant
with Landlord's Work substantially
complete such that Tenant may
reasonably enter the Premises to
perfoffi1 Tenant's Work.
Earnest Money Contract: shall mean the contract
between Town Center Lakeside, LTD.,
as seller, and Tenant, as
purchaser, dated July 28, 2000,
whereby Tenant has the right to
purchase the Premises.
Feasibility Period: shall mean that period beginning on
the date this Lease is executed and
ending on November 9,2000, as the
same may be extended by agreement
between Town Center Lakeside, LTD.
and Tenant under the Earnest money
Contract.
Fixed Monthly Rent: 12% of the Premises Cost (as
detailed on Exhibit "E") divided by
twelve, subject to proration and
adjustment as provided in Section
2.3.
Force Majeure: shall mean the occurrence of one of
the below listed events which
prevents, delays or hinders the
performance of any act required
hereunder: strikes, lockouts,
inability to procure materials,
failure of power, restrictive
governmental laws or regulations,
riots, insurrection, war, or any
other reason of a like nature not
the fault of the party delayed in
performing work or doing any act
required under the terms of this
Lease.
Sterling Master Form Lease
11/07/00
Future Easement Agreement: that certain easement
agreement to be executed by
Landlord at closing on the Earnest
Money Contract, in substantially
the form as attached Exhibit "G",
whereby Landlord agrees to dedicate
and convey certain additional
public utility easement agreements
over, across and under the Premises
to Town Center Lakeside, LTD. upon
its prior written request.
Gross Leasable Area: shall mean the number of
square feet of the Building.
Increase Date: fifth (5th) anniversary of the
Commencement Date, and every five
(5) years thereafter, including
Renewal Terms
Increase Percentage: ten percent (10%).
Initial Term: twenty (20) years, commencing
on the Commencement Date.
Kensington Driveway: shall mean the paved driveway
from Kensington Boulevard to
Tract One (as shown on the Site
Plan) across the Premises.
Landlord: Transugar Limited Partnership
1600 Lake Las Vegas Parkway
Henderson, Nevada 89011
Attention: John R. Plunkett, Jr.
FAX: (702) 564-9886
With a copy to:
Stephen Shapiro, Esq.
420 East Carrillo Street
Santa Barbara, California 93102
FAX: (805) 965-8726
Landlord's Work: shall mean the work to be performed
by or at the direction of Landlord
in constructing the Premises, the
Building and related improvements,
as more particularly specified in
Article 15 below and Exhibit "C".
Lease Year: shall mean a period of twelve (12)
consecutive calendar months during
the Term, the first of which shall
begin on the first day of February
next following the Commencement
Date, (unless the Commencement Date
shall be the first day of February,
in which event the first lease year
shall begin on the Commencement
Date ) and ending on the following
January 31.
Sterling Master Form Lease
11/07/00
Permitting Period: shall mean the period beginning on
the date Landlord executes this
Lease and ending on the date of the
closing on the Earnest Money
Contract.
Permitted Uses: shall mean the display and sale, at
retail, of gold, silver, diamonds,
colored gemstones and other fine
jewelry, watches, and clocks,
crystal, porcelain, and related
items norn1ally sold in Tenant's
other stores and, as incidental
thereto, the repair and/or
appraisal of the same.
Plans and Specifications: shall mean the plans and
specifications for the construction
of the Premises, a list of which is
attached hereto as Exhibit "C", as
the same may be modified by written
agreement by and between Landlord
and Tenant.
Premises: that certain real property more
particularly described in Exhibit
"A" together with all improvements
thereon, located in the City of
Sugar Land, County of Fort Bend,
State of Texas.
Premises Cost: shall mean the cost to perform
Landlord's Work, which cost is
computed on Exhibit "E" attached
hereto and made a part hereof,
subject to adjustment as provided
in Article 2.3.
Premises Site: shall mean the land described
on Exhibit " A ".
REA's: shall mean the reciprocal access
agreement(s) to be agreed upon by
Landlord, Tenant and Town Center
Lakeside Ltd. for reciprocal access
across the Premises by way of the
Kensington Driveway and the Shared
Driveway.
Shared Driveway: shall mean the paved driveway from
State Highway 6 to the Premises and
Tract One and Tract Two (as shown
on the Site Plan).
Renewal Terms: two (2) terms of five (5) year(s)
each.
Sign Drawings: shall mean the plans and
specifications for Tenant's
exterior sign(s) on the Premises,
in the form of Exhibit "D", as the
same may be modified by written
agreement by and between Landlord
and Tenant.
Sterling Master Form Lease
11/07/00
Tenant: Sterling Jewelers Inc. 375 Ghent
Road
Akron, Ohio 44333
Attn: Real Estate Department
FAX: (330) 668-5050
With copies to:
Brouse McDowel1 LP A
1001 Lakeside Avenue, Suite 1600
Cleveland, Ohio 44114
Attn: David A. Lum, Esq.
FAX: (216) 830-6807
Tenant's Work: shall mean the work, if any, to be
performed by or at the direction of
Tenant in fixturing the Premises as
more specifically identified on
Exhibit "C-1 ", attached hereto.
Trade Fixtures: those items listed on attached
Exhibit "F", which are and shall
remain the personal property of
Tenant.
ARTICLE 2
TERM AND RENT
2.1 TERM. The Initial Term of this Lease shall be as
set forth in the Fundamental Lease Provisions. Provided
Tenant is not then in default under this Lease, Tenant shall
have the option to extend the Initial Term by the number of
successive Renewal Terms described in the Fundamental Lease
Provisions by giving Landlord written notice of its election
to extend the term of this. Lease by the succeeding Renewal
Term not less than one hundred eighty (180) days prior to
expiration of the Initial Term or the then-running Renewal
Term, as the case may be. Excepting the amount of the Fixed
Monthly Rent, as adjusted, the terms and conditions of this
Lease shall apply during each Renewal Term. The Initial
Term, as it may be extended by one or more Renewal Terms,
shall be hereinafter referred to as the "Lease Term."
2.2 Intentionally Omitted.
2.3 Fixed Monthly Rent. For the use and occupancy
of the Premises, Tenant shall pay Landlord the Fixed Monthly
Rent, in advance and without demand, commencing on the
Commencement Date and continuing on the first day of each
calendar month thereafter during the Lease Term, without any
offset or deduction except as specifically provided for
herein. The Fixed Monthly Rent in effect immediately prior
to the Increase Date shall increase by the Increase
Percentage on each Increase Date. Should the Lease Term
commence on a day other than the first day of a calendar
month, then the rental for such first fractional month shall
be computed on a daily basis for the period from the
Commencement Date to the end of such
Sterling Master Form Lease
11/07/00
calendar month at an amount equal to 1/30th of the Fixed
Monthly Rent for each day. Should the Lease Term end on a
day other than the last day of a calendar month, then the
rental for such fractional month shall be computed on a
daily basis at an amount equal to 1/30th of the Fixed
Monthly Rent for each day. Tenant shall pay Landlord the
Fixed Monthly Rent in lawful money of the United States at
the address for Landlord set forth in the Fundamental Lease
Provisions, or to such other persons or at such other places
as Landlord ma)' designate in writing to Tenant. Landlord
and Tenant acknowledge that the Premises Cost computation on
Exhibit "E" is an estimate, and agree to supplement and/or
amend Exhibit "E" after the Premises Cost is actually
determined. Landlord and Tenant shall retroactively adjust
the Fixed Monthly Rental payments once the computation of
Exhibit "E" has been finalized. In the event the cost of
developing and constructing the Premises, including the
Building and related improvements, increases as a result of
a change in the Plans and Specifications requested by Tenant
or an unforeseen event or circumstance beyond the control of
the parties hereto, such increase in cost shall, at the
option of Tenant, (i) be paid by Tenant; or (ii) be added to
the Premises Cost and Fixed Monthly Rent shall be adjusted
accordingly; provided, however, that if the additional cost
of developing and constructing the Premises is due to the
gross negligence or willful misconduct of Landlord, then
Tenant shall have no liability therefor and the Premises
Cost and Fixed Monthly Rent shall not be increased as a
result thereof, such cost being the sole responsibility of
Landlord.
2.4 Additional Rent. In addition to the Fixed Monthly
Rent, as increased, Tenant shall pay to the parties
respectively entitled thereto all insurance premiums, Taxes
(as defined in Article 4), operating charges, maintenance
charges, construction costs, reasonable accounting and legal
fees, and any other charges, costs and expenses which arise
or may be contemplated under any provision of this Lease
during the Lease Term (collectively, the " Additional
Rent"). Tenant shall furnish to Landlord, promptly after
payment of any Taxes or insurance premiums, and, with
respect to any other Additional Rent, promptly upon request
of Landlord, official receipts or other satisfactory proof
evidencing payment of such Additional Rent. Upon Tenant's
failure to pay such Additional Rent on more than one
occasion during any twelve month period, where after written
notice thereof from Landlord to Tenant such second event of
failure shall continue for a period often (10) days,
Landlord shall have the option to require Tenant to deposit
with Landlord (i) funds sufficient for the payment of the
current Additional Rent required to be paid by Tenant
hereunder, and (ii) one-twelfth of the current annual or
annualized Additional Rent, as the case may be (or those of
the preceding years if the current amounts thereof have not
been fixed), in advance and on the same day upon which the
Fixed Monthly Rent is due.
2.5 Late Charge. If any installment of the Fixed
Monthly Rent, or any other payment provided for under this
Lease which is payable by Tenant, is not received by
Landlord within ten (10) days after written notice from
Landlord to Tenant that such payment is overdue, Tenant
shall pay Landlord an amount equal to 4% of the overdue
amount as a late charge (the "Late Charge"). Landlord and
Tenant agree that the Late Charge represents a fair and
reasonable estimate of the costs that Landlord will incur by
reason of any such late payment by Tenant. Acceptance of the
Late Charge by Landlord shall not constitute a waiver of
Tenant's default, if any, with respect to the overdue
amount, nor prevent Landlord from exercising any other
rights and remedies available to Landlord under this Lease.
Sterling Master Form Lease
11/07/00
2.6 Interest on Overdue Amounts. The Fixed Monthly
Rent, the Additional Rent and all other amounts due Landlord
under this Lease which are not paid when due shall bear
interest at a per annum rate equal to the prime rate of
interest charged by the then largest chartered bank in the
state where the Premises is located plus 2% from the date
due until paid; provided, however, that if such rate shall
exceed the lawful rate of interest which Landlord is
entitled to charge under applicable law, then the per annum
rate of interest on any such overdue amounts shall be the
maximum rate pern1itted by applicable law.
2.7 Net Lease. This Lease is what is commonly called a
"triple net lease," it being understood that Landlord shall
receive the Fixed Monthly Rent free and clear of any and all
Taxes, other Additional Rent, liens, charges, liabilities or
expenses of any nature whatsoever incurred in connection
with the ownership and operation of the Premises.
ARTICLE 3
USE OF THE PREMISES
3.1 Use of the Premises. Tenant shall use the Premises
solely for the Permitted Uses or any other lawful purpose;
provided, however, that any such use shall be subject to all
matters of record and shall not diminish the value of the
Premises or violate any existing exclusive uses then in
effect with respect to the Premises.
3.2 Condition of Premises. Subject to the due
diligence periods and contingency periods "provided in this
Lease, except as otherwise provided in this Lease including,
but not limited to, Article 15 hereof, Tenant accepts the
Premises in its "as is" condition and acknowledges that
Landlord makes no warranty with respect to the Premises.
3.3 Compliance With Law.
3.3.1 Tenant shall, at Tenant's sole expense,
comply in all material respects with all applicable laws,
ordinances, orders, rules, or regulations of any
governmental authorities and with any directive of any
public officer which shall impose any violation, order or
duty upon Landlord or Tenant with respect to the Premises or
the use or occupation thereof or signage thereon, including,
without limitation, any governmental law or statute, rule,
regulation, ordinance, code, policy or rule of common law
now or hereafter in effect relating to the environment,
health or safety.
3.3.2 Tenant shall not use or penT1it the Premises
to be used in any manner which will result in waste,
reasonable wear and tear and casualty damage (to the extent
not required to be repaired or restored by Tenant pursuant
to this Lease) excepted, or the creation of a nuisance, and
Tenant shall maintain the Premises free of any objectionable
noises, odors, or disturbances.
3.4 Environmental Compliance. Excepting acts or
omissions of Landlord or its
Sterling Master Lease Form
11/07/00
agents, for which Tenant shall have no liabilities, Tenant
acknowledges the following:
3.4.1 Tenant shall, at its sole cost and expense at
all times during the Term, comply in all respects with the
Environmental Laws (as defined below) in its use and
operation of the Premises.
3.4.2 Tenant shall not use the Premises for the
purpose of storing Hazardous Materials (as defined below),
except those Hazardous Materials commonly used in the type
of business being conducted by Tenant on the Premises and
provided such use and storage is in full compliance with the
Environmental Laws and other applicable law, and shall not
cause the release of any Hazardous Materials.
3.4.3 Tenant shall notify Landlord promptly and in
reasonable detail in the event that Tenant becomes aware of
or suspects (i) the presence of any Hazardous Materials on
the Premises (other than any Permitted Hazardous Materials,
as defined below), or (ii) a violation of the Environmental
laws on the Premises.
3.4.4 If tenant uses or permits the Premises to be
used so as to subject Tenant, Landlord or any occupant of
the Premises to a claim of violation of the Environmental
Laws (unless contested in good faith by appropriate
proceedings), Tenant shall, at its sole cost and expense,
immediately cease or cause cessation of such use or
operations and shall remedy and fully cure any conditions
arising therefrom.
3.4.5 At its sole cost and expense, Tenant shall
(i) immediately pay, when due, the cost of compliance with
the Environmental Laws within the Premises required as a
result of any acts or omissions of Tenant, or as otherwise
required by this Lease, and (ii) keep the Premises free of
any liens imposed pursuant to the Environmental Laws. Tenant
shall, at all times, use, handle and dispose of any
Permitted Hazardous Material in a commercially reasonable
manner and in compliance with the Environmental Laws and
applicable industry standards. Tenant shall cooperate with
Landlord in any program between Landlord and any
governmental entity for proper disposal and/or recovery of
any Permitted Hazardous Material.
3.4.6 Tenant shall indemnify, save and hold
Landlord harmless from and against any claim, liability,
loss, damage or expense (including, without limitation,
reasonable attorneys' fees and disbursements) arising out of
any violation of the covenants of Tenant contained in this
Section by Tenant, or out of any violation of the
Environmental Laws by Tenant, its owners, employees, agents,
contractors, customers, guests and invitees, which indemnity
obligation shall survive the expiration or termination of
this Lease.
3.4.7 In the event that Tenant fails to comply with
the any of the foregoing requirements of this Section, after
the expiration of the cure period permitted under the
Environmental Laws, if any, Landlord may, but shall not be
obligated to (i) elect that such failure constitutes a
default under this Lease; and/or (ii) take any and all
actions, at Tenant's sole cost and expense, that Landlord
deems necessary or desirable to cure any such noncompliance.
Tenant shall reimburse Landlord for any costs incurred by
Landlord in exercising its options
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under this subsection within five (5) days after receipt of
a bill therefor .
3.4.8 Landlord shall indemnify, save and hold
Tenant harn1less from and against any claim, liability,
loss, damage or expense (including, without limitation,
reasonable attorneys' fees and disbursements) arising out of
or in any way relating to any violation of the Environmental
Laws by or the existence or presence of Hazardous Materials
on the Premises due to the acts or omissions of Landlord,
its owners, employees, agents, contractors, invitees or
representatives, which indemnity obligation shall survive
the expiration or termination of this Lease.
3.4.9 Landlord acknowledges and covenants that in
the event that through no fault of Tenant, Tenant's use,
occupancy and enjoyment of the Premises ("Occupancy") shall
be materially interfered with by reason of the existence or
remediation of any Hazardous Materials for a period of two
(2) years or more, then Tenant shall have the right to
terminate this Lease by giving written notice to Landlord of
its election to do so, whereupon this Lease shall
automatically terminate and end effective as of the date of
such notice and neither party shall have any further
obligations hereunder; PROVIDED, HOWEVER, Landlord may
nullify Tenant's notice of tern1ination if at the time such
notice is given Landlord shall be diligently prosecuting the
rectification of such Hazardous Materials interference and
thereafter completes the rectification in accordance with
all applicable governmental laws, codes, regulations and
requirements within one (1) year after the date of Tenant's
termination notice, whereupon this Lease shall continue in
full force and effect in accordance with its terms. During
any time period where Tenant's Occupancy is so interfered,
Landlord and Tenant agree to work together and cooperate
with one another to rectify and remediate any Hazardous
Materials existing on the Premises and to recover any and
all costs and expenses related thereto from the party
responsible for such Hazardous Materials.
3.4.10 The provisions of this Section shall survive
the expiration or tern1ination of the Lease Term.
Capitalized terms used in this Section and not
otherwise defined herein shall have the following meanings.
"Hazardous Materials" means any of the
following as defined by the Environmental Laws:
solid wastes; medical or nuclear waste or
materials; toxic or hazardous substances; natural
gas, liquefied natural gas or synthetic fuel gas;
petroleum products or derivatives, wastes or
contaminants (including, without limitation,
polychlorinated biphenyls); paint containing lead;
urea-foffi1aldehyde foam insulation; asbestos
(including, without limitation, fibers and friable
asbestos); explosives; discharges of sewage or
effluent; and any other substance, gas or other
material regulated by federal, state, local or
other governmental laws, ordinances, or
restrictions.
"Environmental Laws" means all requirements
of environmental, ecological, health, or
industrial hygiene laws or regulations or rules of
common law related to the Property, including all
requirements imposed by any law, rule, order, or
regulation of any federal, state, or local
executive, legislative, judicial, regulatory , or
administrative
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agency, board, or authority, which relate to (i)
noise; (ii) pollution or protection of the air,
surface water, ground water, or land; (iii) solid,
gaseous, or liquid waste generation, treatment,
storage, disposal, or transportation; (iv)
exposure to Hazardous Materials; or (v) regulation
of the manufacture, processing, distribution and
commerce, use, or storage o f Hazardous Materials.
"Permitted Hazardous Material" means any
Hazardous Materials which are necessary and
commercially reasonable for the provision of any
good or service related to the Pem1itted Uses,
provided the use and storage thereof is in full
compliance with the Environmental Laws and other
applicable laws.
3.5 Permits and Licenses. After Tenant's
acceptance of Landlord's delivery of the Premises,
Tenant shall be solely responsible to apply for and
secure any building permit or pem1ission of any duly
constituted authority for the purpose of doing any of
the things which Tenant is required or permitted to do
under the provisions of this Lease.
ARTICLE 4
TAXES AND UTILITIES
4.1 Payment of Taxes. Tenant shall pay the Taxes
(as defined in the following Section) applicable to the
Premises during the Lease Term. Landlord shall provide
Tenant with copies of any tax bills applicable to the
Premises promptly after receipt of such bills. All such
payments shall be made at least ten (10) days prior to
the delinquency date of such payment. Tenant shall
promptly furnish Landlord with satisfactory evidence
that such Taxes have been paid. If any such Taxes paid
by Tenant shall cover any period of time prior to, or
after the expiration of, the Lease Term, Landlord shall
reimburse Tenant to the extent required. If Tenant
shall fail to pay any such Taxes, Landlord shall have
the right (but not the obligation) to pay the same, in
which case Tenant shall repay such amount plus any
penalties and interest resulting therefrom to Landlord
within five (5) days after receipt of a bill therefor.
4.2 Definition of "Taxes"." As used herein, the
term "Taxes" shall include:
4.2.1 any form of real estate tax or
assessment, special taxes and assessments, ad valorem
tax or gross receipts tax imposed by any authority
having the direct or indirect power to tax, including
any city, county, state, or federal government, or any
school, agricultural, sanitary, fire, street, drainage,
or other improvement district thereof, on, against or
with respect to the Premises, this Lease, any legal or
equitable interest of Landlord or any superior landlord
in the Premises, or in the real property of which the
Premises are a part, Landlord's right to rent or other
income therefrom and Landlord's business of leasing the
Premises;
4.2.2 any tax, fee, levy, assessment, penalty,
interest or other charge (i) in substitution
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of, partially or totally, any tax, fee, levy),
assessment or charge hereinabove included within this
definition of Taxes, or (ii) any tax or increase in any
tax which is imposed as a result of a transfer, either
partial or total, of Landlord's interest in the
Premises to Tenant, or (iii) ally tax or increase in
tax which is imposed by reason of this transaction, any
modifications or changes hereto, or any transfers
hereof; and
4.2.3 all inspection fees, taxes, bonds, permits,
certificates, assessments and sales, use, property or
other taxes, fees or tolls of any nature w 1atsoever
(together with any related interest or penalties) now
or hereafter imposed against Landlord or Tenant by any
federal, state, county or local governmental authority
upon or with respect to the Premises, or the use
thereof, or upon the possession, leasing, use,
operation or other disposition thereof, or upon the
rents, receipts or earnings arising therefrom or upon
or with respect to this Lease; and
4.2.4 all taxes assessed against and levied
upon trade fixtures, furnishings, equipment, and all
other personal property of Tenant contained fn the
Premises or elsewhere, which Tenant shall cause to be
separately assessed and billed directly to Tenant.
Tenant shall pay when due, and indemnify and hold
Landlord harmless from and against, any Taxes.
Notwithstanding the foregoing, the term "Taxes" shall not
include any general income taxes, inheritance taxes, and
estate taxes imposed upon Landlord.
4.3 Tenant's Right to Contest Taxes.
4.3.1 Tenant shall have the right, at its sole
cost and expense, to contest the amount or validity, in
whole or in part, of any Taxes by appropriate
proceedings diligently conducted in good faith, but no
such contest shall be carried on r maintained by Tenant
after the time limit for the payment of any Taxes
unless Tenant shall (i) pay the amount involved under
protest; (ii) procure and maintain a stay of all
proceedings to enforce any collection of any Taxes,
together with all penalties, interest, costs and
expenses, by a deposit of a sufficient sum of money, or
by such undertaking, as may be required or permitted by
law to accomplish such stay; or (iii) deposit with
Landlord, as security for the performance by Tenant of
its obligations hereunder with respect to such Taxes,
120% of such contested amount or such other reasonable
security as may be reasonably demanded by Landlord to
insure payment of such contested Taxes and all
penalties, interest, costs and expenses which may ac
rue during the period of the contest. Upon the
termination of any such proceedings, Tenant s all pay
the amount of such Taxes or part thereof, as finally
determined in such proceedings, together with any
costs, fees (including all reasonable attorneys' fees
and expenses), penalties or other liabilities in
connection therewith; provided, however, that if Tenant
has deposited cash or cash equivalents with Landlord as
security under clause (iii) above, then, so long as no
default exists under this Lease, Landlord shall arrange
to pay such Taxes (or part thereof) together with the
applicable costs, fees and liabilities as described
above out of such cash or cash equivalents and return
any unused balance, if any, to Tenant. Otherwise,
Landlord shall return t Tenant all amounts, if any,
held by or on behalf of Landlord which were deposited
by Tenant in accordance with such clause (iii). In the
event enforcement proceedings are commenced with
respect to any unpaid Taxes during a contest by Tenant,
Landlord shall have the right to pay all amounts which
are subject to such
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enforcement proceedings and Tenant shall reimburse Landlord
for such amounts within five (5) days after receipt of
written demand therefor from Landlord. Tenant shall
indemnify and hold harmless Landlord from any increase in
Taxes re tilting from Tenant's exercise of its right to
contest Taxes.
4.3.2 Tenant shall have the right, at its cost
and expense, to seek a reduction in the valuation of
the Premises as assessed for tax purposes and to
prosecute any action or proceeding in connection
therewith. Provided Tenant is not in default hereunder,
Tenant shall be authorized to retain any tax refund of
any tax paid by Tenant.
4.3.3 Landlord agrees that whenever Landlord's
cooperation is required in any proceeding brought by
Tenant to contest any tax, Landlord will reasonably
cooperate therein, provided same shall not entail any
cost, liability or expense to Landlord. Tenant shall
pay, indemnify and save Landlord harmless of and from,
any and all liabilities, losses, judgments, decrees,
costs and expenses (including all reasonable attorneys'
fees and expenses) in connection with any such contest
and shall, promptly after the final settlement, fully
pay and discharge the amounts which shall be levied,
assessed, charged or imposed or be determined to be
payable therein or in connection therewith, and Tenant
shall perform and observe all acts and obligations, the
performance of which shall be ordered or decreed as a
result thereof. No such contest shall subject Landlord
to the risk of any civil liability or the risk of any
criminal liability, and Tenant shall give such
reasonable indemnity or security to Landlord as may
reasonably be demanded by Landlord to insure compliance
with the foregoing provisions of this Section.
4.4 Payment of Utilities. Tenant shall ay to the
utility companies or other parties entitled to payment
the cost of all water, heat, air conditioning, gas,
electricity, telephone, and other utilities and
services provided to or for t e Premises, including,
without limitation, connection fees (unless provided
for on Exhibit "F" and taxes thereon.
ARTICLE 5
INSURANCE AND IND MNIFICA TION
5.1 Tenant's Insurance. From and after taking
possession of the Premises, Tenant shall carry and
maintain, at its sole cost and expense, the following
types and amounts of Insurance:
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Insurance Type Amount of Coverage Risks Covered
Commercial General $1,000,000 per occurrence and personal injury,
bodily injury,
Liability $2,000,000 in the aggregate property damage and
contractual liability
Property Damage full replacement value "all risk", including
(including earthquake sprinkler damage
and flood if required
by Landlord)
Business Interruption not less than 12 loss of earnings by at
installments of least the perils of fire
Fixed Monthly Rent and lightning, extended
coverage, vandalism,
malicious mischief and
sprinkler leakage
Worker's compensation as required by law
Boiler and Machinery in an amount reasonably
acceptable to Landlord
5.2 Policy Form.
5.2.1 Tenant shall obtain all policies of
insurance required by Section 5.1 from insurance
companies reasonably acceptable to Landlord which are
qualified and admitted to-do business in the
jurisdiction where the Premises are situated. All such
policies shall be issued in the names of Landlord and
Tenant, and, if request d by Landlord, any mortgagee or
beneficiary of Landlord or such other parties as
required unde any matter of record, as additional
insureds. In addition, all such policies providing
coverage r physical damage shall include loss payee and
mortgagee endorsement in favor of Landlord and
Landlord's mortgagee or beneficiary, respectively and
as applicable. The Tenant shall use copies of such
policies of insurance or originally executed
certificates thereof to be de1ive ed to Landlord prior
to Landlord's execution of this Lease, and not less
than thirty (30) days prior to any renewal thereof. As
often as any such policy shall expire or terminate,
Tenant shall procure and maintain renewal or additional
policies with like terms. None of such policies shall
contain any co-insurance requirements and all such
policies shall provide for written notice to landlord
and any mortgagee or beneficiary of Landlord not less
than thirty (30) days prior to any notification,
cancellation, lapse, or reduction in the amounts of
insurance, and shall further provide that any loss
otherwise payable thereunder shall be payable
notwithstanding any act or negligence of Landlord or
Tenant which might, absent such provision, result in a
forfeiture of all or art of the payment of such loss.
All general liability, property damage, and other
casualty policies shall be written on an occurrence
basis as primary policies, not contributing with or in
excess of coverage which Landlord may carry. The
insurance limits set forth in this Article 5 are
subject to such reasonable increases as requested by
Landlord, provided that Landlord shall have no right to
request such an increase more than once every ten (10)
years.
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5.2.2 Tenant's obligations to carry the
insurance provided for above may be brought within the
coverage of an "umbrella" policy or policies of
insurance carried and maintained by Tenant; provided,
however, that such policy or policies shall (i) have
limits of not less than $5,000,000, (ii) name Landlord
and any mortgage or beneficiary of Landlord as
additional insureds as their interests may appear, and
(iii) provide that the coverage afforded Landlord will
not be reduced or diminished by reason of the use such
blanket policies. Tenant agrees to permit Landlord at
all reasonable times to inspect any policies of
insurance of Tenant which Tenant has not delivered to
Landlord. .
5.3 Subrogation- Waiver. Landlord (for itself and
its insurer) hereby waives any rights, including rights
of subrogation, and Tenant (or itself and its insurer)
hereby waives any rights, including rights of
subrogation, each may have against the other on account
of any loss or damage occasioned to Landlord or Tenant,
as the case may be, to their respective property, the
Premises or its contents that are caused by or result
from risks insured against under any insurance policies
required to be carried by the parties under this Lease
or carried by the parties hereto and in force at the
time of any such damage. he foregoing waivers of
subrogation shall be operative only so long as
available in the jurisdiction where the Premises are
located and so long as no policy of insurance is
invalidated thereby.
5.4 Payment of Insurance. In the event that
Tenant shall fail to obtain the insurance policies
required hereunder or to pay the premium due for the
insurance policies required hereby, Landlord shall have
the right, but not the obligation, to pay the same in
which case Tenant shall repay such amount plus any
penalties or additional amounts resulting therefrom to
Landlord within five (5) days after receipt of a bill
therefor.
5.5 Insurance Use Restrictions. Tenant hall not
carry any stock or goods or do anything in, on, or
about the Premises which will substantially increase
the insurance rates upon the building of which the
Premises are a part.
5.6 Indemnification.
5.6.1 Subject to Subsection 5.6.3 below,
Tenant shall indemnify Landlord for, defend Landlord
against, and save Landlord harmless from any liability,
loss, cost, injury, damage or other expense or risk
whatsoever, including reason le attorneys' fees, that
may occur or be claimed by or with respect to any
person(s) or property on or about the Premises and
resulting directly or indirectly from:
(a) the use, occupancy, possession, operation,
maintenance or management of the Premises by
Tenant or other persons claiming through or
under Tenant, or their respective agents,
employees, licensees invitees, guests or
other such persons;
(b) any work or thing done by Tenant, its
employees, agents or licensees, in respect of
construction of, in or to the Premises or any
part of the improvements now or hereafter
constructed on the Premises ( there than work
by Landlord);
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(c) the condition, including environmental
conditions (unless such conditions were pre-
existing or caused by a party other than
Tenant), of the Premises or any part thereof;
(d) any negligence on the part of Tenant or any
of its agents, contractors, servants,
employees, licensees or invitees
(e) any accident, injury or damage to any person
or property occurring in, on or about the
Premises or any part thereof including any
sidewalk adjacent thereto.
5.6.2 [Intentionally Omitted]
5.6.3 Landlord shall indemnify and save Tenant
harmless from and against any and all claims, demands,
actions, damages, liability and expense, including
reasonable attorneys' fees, in connection with the
loss, damage, or injury to person or property whether
for injuries to persons or loss of life, or damage to
property, arising in connection with the negligence or
intentional misconduct of the Landlord, Landlord's
agents, employees, or contractors.
ARTICLE 6
MAINTENANCE AND REPAIRS
6.1 Tenant's Obligations.
6.1.1 Tenant shall, at its sole cost and
expense, maintain in good repair, order, and
serviceable condition the Premises and every part
thereof, including, without limitation, every part of
the interior and exterior portions of the Building,
including its roof, walls, all windows, doors,
storefronts, plate glass, interior walls, and
structural elements thereof and all painting thereof;
all plumbing, ventilation, heating, air conditioning,
and electrical systems and equipment in, on, or
exclusively serving the Premises; and all exterior
improvements including, without limitation,
landscaping, light poles, signage and parking lot areas
which are part of the Premises. Tenant shall be
obligated to make replacements at the Premises when
reasonably necessary and such replacements shall be, to
the extent reasonably practicable, with materials of a
quality comparable to those initially installed.
Subject to Landlord's satisfaction of the conditions
set forth in Section 6.2.1, Tenant shall not make any
claim or demand upon or bring any action against
Landlord for any loss, cost, injury, damage r expense
caused by any failure or defect, structural or non-
structural, of the Premises or any part thereof.
6.2 Landlord's Obligations. Excepting Landlord's
duties and obligations under Article 15 hereof,
Landlord shall have no obligation to repair and
maintain the Premises, nor any improvements or
equipment thereon, whether interior or exterior,
structural or nonstructural, ordinary or extraordinary.
Except as otherwise provided in this Lease, Tenant
expressly waives
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the benefit of any statute or law now or hereafter in effect
which would otherwise afford Tenant the right to terminate
this Lease because of Landlord's failure to keep the
Premises in good order, condition, and repair, or the right
to repair and offset the cost related thereto against rent.
6.2.1. Landlord shall obtain in the name of
Tenant and Landlord warranties, to the extent
available, on all materials, fixtures, and equipment
incorporated in or on the Premises (the "Warranties").
Further, in the event Tenant is not deemed a third-
party beneficiary or a direct assignee of the
contract(s) Landlord enters into with its contractors
("Landlord's Contractor's") in connection with
Landlord's Work, Landlord shall take such action as may
be reasonably necessary to enable Tenant to make any
demand upon or claim upon or bring any action against
Landlord's Contractors (i) for any loss, cost, injury,
damage or other expense caused by any failure or
defect, structural or non-structural, of the Premises
or any part thereof or (ii) to enforce the Warranties.
6.3 Landlord' s Rights. If Tenant refuses or
neglects to make repairs or maintain the Premises, or
any part thereof, in a manner reasonably satisfactory
to Landlord, without prejudice to any other remedy
Landlord may have hereunder, upon giving Tenant ten
(10) days prior written notice, Landlord shall have the
right to enter the Premises and perform such
maintenance or make such repairs on behalf of and for
the account of Tenant. In the event Landlord so elects,
Tenant shall pay the cost of such repairs, maintenance,
or replacements within five (5) days following receipt
of a bill therefor. Tenant agrees to permit Landlord or
its agent to enter the Premises, upon reasonable notice
to Tenant and in the presence of Tenant's store manager
during nom1al business hours, for the purpose of
inspecting the Premises. Provided Landlord uses its
best efforts to notify Tenant, Landlord shall have the
right to enter the Premises in the event of an
emergency.
ARTICLE 7
ALTERATIONS
7 .1 Consent to Alterations. Tenant may make
any interior non-structural alterations, replacements,
additions, changes and improvements to the Premises
that Tenant, in its sole discretion, deems advisable.
Subject to the prior written consent of Landlord, which
consent shall not be unreasonably withheld, Tenant may,
at its sole cost and expense, make any alterations,
replacements, additions, changes, and improvements
(collectively referred to in this Article as "
Alterations") to the Premises, other than interior non-
structural Alterations, as it may find necessary or
convenient for its purposes, together with copies of
all architectural plans and specifications relating to
any such Alteration. Notwithstanding the foregoing,
Landlord's consent with respect to any structural
Alterations to the Premises, including the foundations,
structural walls, roof, roof membrane, utilities and/or
building systems, may be conditioned upon Tenant's
removing any such Alterations upon the expiration or
termination of the Lease Term and restoring the
Premises to the condition which existed on the date
Tenant took possession, subject to normal wear and
tear.
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7.2 Removal of Alterations. Except a set forth in
Subsection 7.2.1 below, all Alterations made on the
Premises shall become the property of Landlord at the
expiration or termination of the Lease Term and shall
be surrendered with the Premises.
7.2.1 All signs, furnishings, trade fixtures,
inventory , equipment and other removable property,
including but not limited to Tenant's Trade Fixtures,
as listed on Exhibit "F" attached hereto, installed in
or on the Premises by Tenant, shall remain the personal
property of Tenant, shall not be subject to any
Landlord's lien or lien or security interest against
the property of Landlord, and shall be removed by
Tenant not later than fifteen (15) days after the
termination or expiration of this Lease, provided that
Tenant shall repair any damage caused by removal of its
personal property or vault or which is structural in
nature. If, however, any such personal property of
Tenant is not removed on or before the fifteenth (l5th)
day following the termination of this Lease, Landlord
shall provide written notice to Tenant and if such
property is not removed within ten (10) days of receipt
of such notice such property, Landlord may remove and
store such property at Tenant's cost and expense.
7.3 Alterations Required by Law. Subsequent to
Tenant's acceptance of Landlord's delivery of the
Premises, Tenant shall, at its sole cost and expense,
make any Alteration, structural or otherwise, to or on
the Premises, or any part thereof, which may be
necessary or required by reason of any law, rule,
regulation, or order promulgated by competent
government authority.
7.4 General Conditions Relating to Alterations.
Any Alteration shall be subject to the following
conditions:
7.4.1 No Alteration shall be undertaken until
Tenant shall have procured and paid for all required
permits and authorizations of all municipal departments
and governmental subdivisions having jurisdiction.
7.4.2 [Intentionally Omitted]
7.4.3 Any Alteration shall be made promptly
and in a good workmanlike manner, by properly qualified
and licensed personnel, and in compliance with all
applicable permits and authorizations and building and
zoning laws and all laws, and in accordance with the
orders, rules and regulations of the Board of Fire
Insurance Underwriters and any other body hereafter
exercising similar functions having or asserting
jurisdiction over the Premises.
7.4.4 No Alteration shall tie-in or connect,
the Premises or any improvements thereon with any
property outside the Premises without the prior written
consent of Landlord.
7.4.5 No Alteration shall reduce the value of
the Premises or impair the structural integrity of any
building comprising a part of the Premises.
7.4.6 [Intentionally Omitted]
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7.5 Liens In connection with Alterations or
otherwise, Tenant shall do all things reasonably
necessary to prevent the filing of any liens or
encumbrances against the Premises, or any part thereof,
or upon any interest of Landlord or any mortgagee or
beneficiary under a deed of trust or any ground or
underlying lessor in any portion of the Premises, by
reason of labor, services or materials supplied or
claimed to have be n supplied to Tenant, or anyone
holding the Premises, or any part thereof, through or
under Tenant. If any such lien or encumbrance shall at
any time be filed against all or any portion of the
Premises, Tenant shall either cause same to be
discharged of record within twenty (20) days after the
date of filing of same or Tenant's receipt of written
notice from Landlord or, if Tenant in good faith
determines that such lien should be contested, Tenant
shall either (i) bond over such lien in accordance with
applicable law in an amount sufficient to remove the
subject liens as a matter of record, or (ii) furnish
such security as Landlord shall determine to be
necessary and/or required to prevent any foreclosure
proceedings against all or any portion of the Premises
during the pendency of such contest. If Tenant shall
fail to discharge or bond over such lien or encumbrance
or fail to furnish such security within such period,
then, in addition to any other right or remedy of
Landlord resulting from said default of Tenant,
Landlord may, but shall not be obligated to, discharge
the same either by paying the amount claimed to be due
or by procuring the discharge of such lien by giving
security or in such other manner as is or may be
prescribed by law, and Tenant agrees to reimburse
Landlord within five (5) days after demand for all
costs, expenses, and other sums of money spent in
connection therewith.
7.6. Signs. Tenant shall have the right to install
and maintain a sign or signs on all fascia of the
Premises. In addition, Tenant shall have the right to
install a sign on the rear of the Premises. Tenant
shall also have the right to install one concrete base
monument sign, to be approximately four feet by seven
feet in size, in he area generally shown on the Site
Plan attached hereto as Exhibit "B". All such signs
shall comply with all requirements of (i) appropriate
governmental authorities; and (ii) agreements or
restrictions of record (or disclosed to Tenant before
its execution of this Lease) running with the Premises.
All necessary permits, licenses or approvals required
by agreements or restrictions identified in item (ii)
of the previous sentence shall be obtained by Tenant.
Tenant shall maintain its signs in good condition and
repair at all times, and shall save the Landlord
harmless from injury to person or property arising from
the erection and maintenance of said signs. Upon
vacating the Premises, Tenant shall remove all signs
from the Building and the monument and repair all
damage caused by such removal including restoring areas
occupied by the Signs to the extent reasonably
practicable to the condition existing prior to such
removal. Landlord covenants and warrants that it has
approved Tenant's signs and the Sign Drawings attached
hereto as Exhibit "D" prior to or simultaneously with
its execution of this Lease.
ARTICLE 8
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD
8.1 Obligation to Rebuild. If any portion of the
Premises is damaged or destroyed by fire or other
casualty, Tenant shall forthwith give notice thereof to
Landlord. Tenant shall
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promptly obtain an estimate from a licensed architect
or contractor of the cost to complete such repair,
restoration, rebuilding or replacement, and tenant
shall, at its sole cost and expense, promptly repair,
restore, rebuild or replace the damaged or destroyed
improvements, fixtures or equipment, and complete the
same as soon as reasonably possible, to the condition
they were in prior to such damage or destruction,
except for such changes in design or materials as may
then be required by law. In such event, Landlord shall,
to the extent and at the times the proceeds of the
insurance are made available to Landlord, and only so
long as Tenant shall not be in default under this
Lease, reimburse Tenant for the costs of making such
repairs, restoration, rebuilding and replacements as
they are completed, but not more often than once each
month, upon receipt of a written request therefor,
which request shall be accompanied by a certification
from Tenant's architect certifying as to completion of
the work for which reimbursement is being requested. To
the extent, if any, that the proceeds of insurance made
available by Landlord are insufficient to pay the
entire cost of making such repairs, restoration,
rebuilding and replacements, Tenant shall pay the
remainder. Any surplus of insurance proceeds over the
cost of restoration, net of all reasonable expenses
incurred by Landlord in connection with the
administration thereof, shall be promptly paid over to
Landlord. Tenant hereby waives any statutory right
relating to casualties, it being understood and agreed
by the parties that the provisions of this Article 8
shall govern and control in all events.
8.1.1 Notwithstanding the foregoing, in the
event Tenant is unable to obtain any necessary
governmental approvals, authorizations or permits,
despite Tenant's diligent pursuit of same, three
hundred sixty (360) calendar days from the date of such
fire or casualty (such period not to include
unreasonable delays caused b Tenant), Tenant shall have
the option to terminate this Lease. In the event Tenant
elects to so terminate, Tenant shall pay to Landlord
the difference, if any, between the insurance proceeds
received by Landlord and the unamortized portion of the
Premises Cost.
8.2. Casualty During Last Eighteen 18 months.
Notwithstanding anything to the contrary in this
Article 8, if the Premises is damaged or destroyed by
fire or other casualty during the last eighteen (18)
months of the Initial Term or the then-running Renewal
Term such that twenty-five percent (25%) or more of the
Premises are rendered unuseable by Tenant, Tenant may
elect not to rebuild and to terminate this Lease;
provided that Landlord shall receive insurance proceeds
in the full amount of the casualty loss and the
difference, if any, between the insurance proceeds
received by Landlord and the unamortized portion of the
Premises Cost.
8.3 Intentionally Omitted.
8.4 Insurance Proceeds. Notwithstanding anything
to the contrary contained herein, any reference to
casualty insurance and/or insurance proceeds shall mean
insurance payable with respect to the Building on the
Premises. Any insurance with respect to Tenant's Trade
Fixtures or other personal property of Tenant shall be
and remain, the property of Tenant, notwithstanding
anything to the contrary herein.
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ARTICLE 9
EMINENT DOMAIN
9.1 Total Taking. If the entire Premises are
taken under the power of eminent domain by any public
or quasi-public authority, this Lease shall terminate
and expire as of the date of such taking, and upon
Tenant's payment to Landlord of all rents accruing
through such date, Landlord and Tenant shall each
thereafter be released from any further liability
accrued under this Lease. In the event that Tenant
shall have paid any rent for any period beyond the date
of such taking, Landlord shall reimburse same, pro
rata. .
9.2 Partial Taking. In the event that (i) more
than 25% of the Gross Leasable Area of the Premises,
including the parking area serving he Premises, is
taken under the power of eminent domain by any public
or quasi-public authority, (ii) by reason of any
appropriation or taking, regardless of the amount so
taken, the remainder of the Premises is not one
undivided parcel of property, or (iii) as a result of
any taking, regardless of the amount so taken, the
remainder of the premises is rendered unsuitable for
the continued operation of Tenant's business, either
Landlord or Tenant shall have the right to terminate
this Lease as of the date Tenant is required to vacate
a portion of the Premise, by giving the other notice of
such election within thirty (30) days after receipt by
Tenant from Landlord of written notice that the
Premises have been so appropriated or taken. Landlord
agrees immediately after learning of any appropriation
or taking to give to Tenant notice in writing thereof.
In the event of such termination, upon tenant's payment
to Landlord of all rents accruing through such date,
both Landlord and Tenant shall thereupon be released
from any liability thereafter accruing hereunder. If
both parties elect not to terminate this lease, Tenant
shall remain in that portion of the Premises not s
taken and Tenant, at Tenant's sole cost and expense,
shall restore the remaining portion f the Premises as
soon as possible to a complete unit of like quality and
character as existed prior to such taking. Landlord
agrees to reimburse Tenant for the cost of restoration,
but in o event shall Landlord's obligation to reimburse
Tenant for the cost of restoring the remaining portion
of the Premises exceed the amount of award of
compensation that Landlord receives for a partial
taking of that portion of the Premises resulting in the
need for restoration. So long as this Lease is not
terminated in the manner provided above, there shall be
an equitable adjustment of the rent payable by Tenant
hereunder by reason of such partial taking. Tenant
hereby waives any statutory rights of termination which
may arise by reason of any partial taking of the
premises under the power of eminent domain.
9.3 Distribution of Award. The entire award or
compensation in such eminent domain proceeding, whether
for a total or partial taking or for diminution in the
value of the leasehold or for the fee, shall be
distributed to Landlord; provided however, that Tenant
may apply for award of the value of Tenant's Trade
fixtures or other personal property, loss of income,
relocation costs, improvements and the value of the
leasehold interest created hereby, according to the law
in effect in the jurisdiction where the Premises are
located, so long as such award does not diminish the
value of Landlord's award. In the event that a separate
award is not made to Tenant, Tenant shall be entitled
to share in any award made to Landlord, as long as
Landlord first receives the fair market value of the
real property upon which the Premises are located plus
the unauthorized Premises Cost.
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ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 Right of Assignment and Subletting.
10.1.1 Tenant shall have the free right to
assign this Lease or sublet the Premises provided
Tenant remains liable under this Lease and provided
that the proposed assignee's intended use does not
violate any protected, exclusive or restricted uses
then in effect with respect to the Premises.
Notwithstanding the foregoing, Tenant shall not
mortgage, pledge or hypothocate this Lease or Tenant's
interest in and to the Premises or any part thereof
without the prior written consent of Landlord, which
consent shall not be unreasonably withheld.
10.1.2 Any permitted assignee, subtenant,
transferee, licensee, concessioner, or mortgagee shall
be bound by, and shall assume and perform all of the
terms, covenants, and conditions of this Lease from and
after the date of any such transfer.
10.2 No Release of Tenant. No assignment
shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant
hereunder. The acceptance of rent by Landlord from any
other person shall not be deemed to be a waiver by
Landlord of any provision hereof. In the event of
default by any assignee of Tenant, or any successor
Tenant, in the performance of any of the terms hereof,
Landlord may, subject to Landlord's duty to mitigate
and take all reasonable efforts to relet the Premises,
proceed directly against Tenant without the necessity
of exhausting remedies against such assignee.
ARTICLE 11
DEFAULT; REMEDIES
11.1 Default. The occurrence of anyone or
more of the following events shall constitute a default
by Tenant under this Lease:
11.1.1 [Intentionally Omitted]
11.1.2 The failure by Tenant to make any
payment of Fixed Monthly Rent, Additional Rent or any
other payment required to be made by tenant hereunder,
where after written notice thereof from Landlord to
Tenant, such failure shall continue for a period of ten
( 10) days.
11.1.3 Except as otherwise provided in this
Lease, the failure by Tenant to observe or perform any
of the non-monetary covenants, conditions, or
provisions of this Lease to be
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observed or performed by Tenant, where such failure
shall continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant;
provided, however, that if the nature of Tenant's
noncompliance is such that more than thirty (30) days
are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant commences such
cure within said 30-day period and thereafter
diligently prosecutes such cure to completion and, in
any event, completes the cure within ninety (90) days.
11.1.4 Institution by or against Tenant of any
bankruptcy, insolvency, reorganization, receivership or
other similar proceeding involving the creditors of
Tenant, which, if instituted against Tenant, is not
dismissed within sixty (60) days after the commencement
thereof.
11.1.5 The issuance or filing of any judgment,
attachment, levy, garnishment or the commencement of
any related proceeding or the commencement of any other
judicial process upon or with respect to all or
substantially all of the assets of Tenant, or the
Premises.
11.1.6 [Intentionally Omitted]
11.1.7 Bankruptcy, dissolution, termination of
existence, insolvency, business failure or assignment
for the benefit of creditors of or by Tenant. In the
event of bankruptcy by Tenant, this Lease will be
governed in accordance with the determinations of the
Bankruptcy Court.
11.1.8 Any statement, representation or
information made or furnished by or on behalf of Tenant
to Landlord in connection with or to induce Landlord to
enter into this Lease which is proved to be materially
false or misleading when made or furnished.
11.2 Remedies. Upon the occurrence of a
default by Tenant pursuant to the foregoing Subsection
or otherwise under this Lease, Landlord may at any time
thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any right
or remedy which Landlord may have by reason of such
default:
11.2.1 Terminate Tenant's right to possession
of the Premises by any lawful means, in which case this
Lease and the term hereof shall terminate and Tenant
shall immediately surrender possession of the Premises
to Landlord. In such event, Landlord shall be entitled
to recover from Tenant all damages permitted by
applicable law.
11.2.2 Maintain Tenant's right to possession of
the Premises by any lawful means, in which case this
Lease and the term hereof shall continue in effect
whether or not Tenant shall have vacated or abandoned
the Premises. In such event Landlord shall be entitled
to enforce all of Landlord's rights and remedies under
the Lease, including the right to recover the rent as
it becomes due hereunder. Notwithstanding the
foregoing, the Landlord shall use reasonable efforts to
mitigate its damages to the extent required by law.
11.2.3 If Tenant, after taking possession of
the Premises, defaults under this Lease, Tenant shall
pay Landlord Fixed Monthly Rent until such time as
Landlord relets the Premises, so long as Landlord makes
all reasonable efforts to mitigate its damage and relet
the Premises.
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Further, from the date Landlord relets the Premises
until the expiration of the Term, or the then running
renewal term, Tenant shall pay Landlord the present
value, if any, of the difference between the then
current fair market rental amount for the Premises
(provided such reletting is a commercially reasonable
"arms-length" transaction, otherwise the fair rental
value of the Premises) and the Fixed Monthly Rent.
Present value shall be calculated based on the discount
rate of the Federal Reserve Branch serving the area in
which the Premises is located plus one percent.
11.2.4 Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial
decisions of the jurisdiction where the Premises are
located.
11.2.5. Recover from Tenant, as an element of
its damages, the cost of reletting the Premises,
including, but not limited to, reasonable brokerage
fees, attorneys' fees, retrofit costs and other
expenses of mitigation.
11.3 Cumulative Remedies. Except as
specifically provided herein to the contrary, no remedy
or election, hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other
remedies provided in this Article or otherwise
available at law or in equity.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES; FINANCIAL REPORTING
12.1 Representations and Warranties. To
induce Landlord to enter into this Lease, Tenant
represents and warrants to Landlord as follows:
12.1.1 This Lease is an enforceable obligation
of Tenant.
12.1.2 Tenant is not a foreign corporation,
foreign partnership, foreign trust or foreign estate
(as such term are defined in the Internal Revenue Code
of 1986, as amended, and the regulations promulgated
thereunder).
12.1.3 The financial statements of Tenant
delivered to Landlord are true and correct in all
material respect, have been prepared in accordance with
generally accepted accounting principles, and fairly
present the respective financial conditions of the
subjects thereof as of the respective dates thereof. No
materially adverse change has occurred in the financial
conditions reflected therein since the respective dates
thereof.
12.1.4 There are no actions, suits or
proceedings pending, or to the best of Tenant's
knowledge, threaten d, against or affecting it or the
Premises which, if adversely determined, would
materially impair the ability of Tenant to satisfy
their obligations under or relating to this Lease.
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12.1.5 Tenant is not in default under any
obligation for the payment of borrowed money, for the
deferred purchase price of property or for the payment
of any rent under any lease agreement, which, either
individually or in the aggregate, would adversely
affect the financial condition of Tenant, or the
ability of Tenant to perform its obligations hereunder,
or comply with the terms of this Lease.
12.2 Financial Statements. Tenant has furnished
certain financial statements to Landlord, which
statements completely and accurately present the
financial condition of Tenant on the dates thereof.
There has been no material adverse change in business,
property or condition of Tenant since the date of such
financial statements. Tenant is not insolvent within
the meaning of Section 548(a)(2)(B) of the United
States Bankruptcy Code or any other federal or state
law using or defining such term, and will not be
rendered insolvent by the transactions contemplated by
this Lease.
ARTICLE 13
[Intentionally Omitted)
ARTICLE 14
DUE DILIGENCE AND CONDITIONS PRECEDENT
14.1 Due Diligence. Landlord and Tenant shall work
together to obtain and review the title commitment
relating to the Premises, including all recorded
documents set forth therein, and the survey, and to
perform all necessary tests, inspections, surveys and
studies of the Premises (the "Due Diligence Materials")
prior to the expiration of the Feasibility Period and
in accordance with the Earnest Money Contract. Tenant
shall have the right, in its sole and absolute
discretion, to terminate this Lease for any reason
relating to the Due Diligence Materials by providing
Landlord with notice in writing prior to the expiration
of the Feasibility Period, in which event this Lease
shall terminate and be null and void and of no further
force and effect; provided, however, that Tenant shall
have no right to terminate this Lease in accordance
with this Section 14.1 after the Feasibility Period. In
no event shall Landlord terminate the Earnest Money
Contract as a result of any of the Due Diligence
Materials without the prior written consent of Tenant
which Tenant may withhold in its sole and absolute
discretion.
14.2 Conditions Precedent. This Lease is
contingent upon the occurrence of the following
conditions ("Conditions Precedent"):
14.2.1 Approval of the Site Plan, together with
the Building and other improvements to be constructed
on the Premises in accordance with the Plans and
Specification, by Town Center Lakeside, LTD., the City
of Sugar Land, Texas (the "City") and the New
Construction
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Committee of the First Colony Community Services
Association, Inc. prior to the expiration of the
Feasibility Period.
14.2.2 Agreement on the form and content of the
REA's for the Shared Driveway and
the Kensington Driveway, and the form and content of an
escrow agreement for the escrowing of shared costs relating
thereto, prior to the expiration of the Feasibility Period
to be executed by Landlord and Town Center Lakeside, Ltd. at
the closing on the Earnest Money Contract. In no event shall
Landlord execute the REA 's or an escrow agreement relating
thereto without Tenant's prior written consent.
14.2.3 The Premises being zoned in a manner
permitting Tenant to operate the Premises for the
Permitted Uses.
14.2.4 Obtaining from the necessary parties or
utility providers prior to the expiration of the
Feasibility Period appropriate assurances that
sufficient utility capacity will be available to the
Premises.
14.2.5 Agreement on the form and content of an
escrow agreement for the escrowing of funds necessary
to construct certain improvements required by the City
to the Premises and State Highway 6 in connection with
the development or the Premises. In no event shall
Landlord execute such an escrow agreement without
Tenant's prior written consent.
In the event the Conditions Precedent do not occur
prior to the expiration of the Feasibility Period, Tenant
shall have the right to terminate this Lease by providing
Landlord written notice thereof; in which event this Lease
shall be null and void and of no further force and effect.
ARTICLE 15
CONSTRUCTION
15.1 Permits. Landlord shall use its diligent
efforts to obtain all necessary governmental and quasi-
governmental permits and approvals (collectively the
"Permits") on or before the expiration of the
Permitting Period. Once Landlord has secured all
necessary Permits it shall provide Tenant with written
notice (the "Permit Approval Notice"). In the event the
Permits are not obtained such that the closing on the
Earnest Money Contract does not occur, this Lease shall
terminate and become null and void and of no further
force and effect.
15.2 Landlord's Work. After having obtained
the Permits, Landlord shall construct the Premises and
related improvements on the Premises Site on a turnkey
basis at no cost to Tenant, in accordance with the
Plans and Specifications attached hereto as Exhibit "C"
and in accordance with the zoning, building,
environmental, health an safety codes of the
governmental units in which the Premises are situated
("Landlord's Work"). Landlord's Work shall be
substantially completed, excepting Punchlist Items (as
hereinafter defined), and possession of the completed
Premises shall be delivered to Tenant for the
commencement of Tenant's Work within the Construction
Period, delays due to Force Majeure events excepted.
Tenant shall be deemed to
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have accepted the Premises provided Landlord's Work is
substantially complete, excepting Punchlist Items which
Landlord shall be obligated to complete as set forth in
Section 15.4, and provided further that Tenant is able
to perform Tenant's Work without unreasonable
interference by Landlord. Conditioned upon Tenant's
providing Landlord reasonable assurance that Tenant's
placement of a satellite dish on the roof of the
Premises will not void applicable roof warranties,
Tenant shall have the right to install on the roof or
the Premises a satellite dish in accordance with plans
and specifications set forth on Exhibit "C". Upon
expiration or earlier tern1ination of this Lease,
Tenant shall remove any satellite dish and related
equipment installed on the roof of the Premises and
repair any damage caused in connection therewith. .
15.3 Delivery Date Notice. Landlord shall
give Tenant written notice of the Delivery Date not
less than ten (10) day's before the Delivery Date (the
"Delivery Date Notice"). Upon receipt of Landlord's
Delivery Date Notice, Tenant shall have access to the
Premises for inspection and performance of Tenant's
Work. In no event shall Tenant be required to accept
delivery of the Premises unless and until all
conditions to the occurrence of the Delivery Date
have been satisfied
15.4 Punchlist Work. Notwithstanding anything
to the contrary in this Lease, within five (5) days
after Landlord has provided Tenant with the Delivery
Date Notice, Tenant and a representative of Landlord,
at a mutually agreeable time, shall inspect the
Premises and shall compile a list of items which have
not been completed as required in Exhibit "C" (the
"Punchlist Items"). Tenant shall have the right to
supplement the list of Punchlist Items during the first
forty-five (45) days following the Delivery Date.
Landlord shall use reasonable efforts to complete the
Punchlist Items by the Delivery Date or as soon as
possible after Landlord's receipt of a supplemental
list of Punchlist Items, as the case may be. In the
event Landlord is unable to complete such Punchlist
Items within thirty (30) days after the Delivery Date
or within thirty (30) days after receipt of a
supplemental list, Tenant shall have the right, but not
the obligation, to complete such Punchlist Items at
Landlord's cost and expense and to either request
reimbursement from Landlord or to offset the cost
thereof against rent. Upon Landlord's completion of all
Punchlist Items, Landlord shall have no further
obligation with respect to the construction of the
Premises.
15.5 Pre-Completion Acceptance. If the
Delivery Date has not occurred within the Construction
Period, Tenant shall have the right, but shall not be
obligated, to accept delivery of the Premises, without
relieving Landlord of any obligation to fully complete
Landlord's Work. If Tenant accepts delivery of the
Premises prior to the completion of Landlord's Work,
Landlord shall complete Landlord's Work, including
completing any Punchlist Items, as soon as possible,
and in so doing shall not unreasonably interfere, and
shall cause its contractors not to unreasonably
interfere, with the fixturing, furnishing, equipping
and stocking of the Premises by Tenant and its
contractors. Notwithstanding the foregoing, once (i)
Tenant has taken possession of the Premises and
Landlord has completed Landlord's Work, (ii) all
Punchlist Items have been completed, and (iii) all
warranties have been assigned to Tenant, Landlord shall
have no further construction obligations hereunder.
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15.6 Failure to Deliver. Notwithstanding any
provision of this Lease to the contrary, if the
Delivery Date has not occurred within thirty (30) days
after the Construction Period (delays due to the
occurrence of Force Majeure events excepted) (the
"Cancellation Date"), Tenant shall have the right, in
addition to and not in lieu of any and all other rights
and remedies available at law or equity, to cancel this
Lease by giving written notice to Landlord at any time
thereafter but before the Delivery Date (the "Notice of
Cancellation"). Tenant must provide its Notice of
Cancellation to Landlord within thirty (30) days after
the Cancellation Date. If Tenant fails to provide a
Notice of Cancellation within such thirty (30) day
period, Tenant shall be deemed to have waived its right
to cancel pursuant to this section 15.6. If Tenant
provides timely Notice of Cancellation, Tenant shall be
relieved of all obligations hereunder and Tenant shall
not be liable to Landlord in damages or otherwise.
15.7 Liquidated Damages. In the event
Landlord does not deliver the Premises to Tenant in the
condition as herein required by the end of the
Construction Period, Landlord shall pay to Tenant the
sum of Two Hundred Dollars ($200.00), for each day
between the last day of the Construction Period and the
Delivery Date, or, if Tenant exercises its right to
cancel for Landlord's failure to deliver, for each day
between the last day of the Construction Period and
Tenant's Notice of Cancellation (delays due to the
occurrence of Force Majeure events excepted). If
Landlord fails to pay Tenant as aforesaid, then Tenant
shall have the right (without limiting any other right
or remedy of Tenant) to deduct such amount from rent
and other payments due Landlord. The liability of
Landlord under this paragraph shall be in addition to
all other claims which Tenant may have against
Landlord. Landlord agrees that the amount provided for
in this section constitutes a reasonable estimate of
the damages that Tenant is likely to incur in the event
of a breach by Landlord as herein provided, and shall
not constitute a penalty.
ARTICLE 16
GENERAL PROVISIONS
16.1 Quiet Enjoyment. Subject to the terms
and conditions of this Lease, Tenant shall have the
quiet and peaceful possession of the Premises.
16.2 Definition of Rent. All monetary
obligations of Tenant to Landlord under the terms of
this Lease, including, without limitation, the Taxes,
insurance premiums and other Additional Rent payable
hereunder, shall be deemed to be "rent".
16.3 Subordination. This Lease shall be
subordinate to the lien of any superior lease,
mortgage, deed of trust, or any other hypothecation or
security now existing or hereafter placed upon the
Premises, and to any and all advances made on the
security thereof and to all renewals, modifications,
consolidations, replacements, and extensions thereof,
and Tenant hereby agrees, upon request by Landlord, to
execute and deliver to Landlord and its lender(s) a
subordination, non-disturbance and attornment agreement
in a form reasonably acceptable to Tenant prescribed by
such lender(s) with respect to any such superior lease,
mortgage, deed of trust, hypothecation, or security;
provided, however, that no such instrument shall
materially limit Tenant's rights or materially expand
Tenant's obligations under this Lease. Such agreement
shall be executed by
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Tenant within thirty (30) days after receipt of written
request from Landlord. Landlord agrees to obtain a non-
disturbance and attornment agreement from the holder of
any mortgage given with respect to the Premises
existing at the time of the execution of this Lease or
the recording of a Memorandum Lease or at such other
times as may be reasonably requested by Tenant.
16.3.1 It is a condition, however, of the
subordination provisions of Section 16.3 above that
Landlord shall procure from any such mortgagee an
agreement in writing, which shall be delivered to
Tenant, providing in substance that (i) so long as
Tenant shall faithfully discharge the obligations on
its part to be kept and performed under the terms of
this Lease, Tenant's tenancy will not be disturbed nor
this Lease affected by any default or foreclosure under
such mortgage, and that the mortgagee agrees that this
Lease shall remain in full force and effect even though
Default in and foreclosure under the mortgage may
occur; and (ii) such mortgagee shall permit insurance
proceeds or condemnation awards, as the case may be, to
be used for any restoration and repaid as required by
the provisions of this Lease as set forth in Sections 8
and 9. The word "mortgage" as used herein means (i) any
lease of land only or of land and buildings in a sale-
lease-back transaction involving all or any part of the
Premises, or (ii) any mortgage, deed of trust or other
similar security instruments constituting a lien upon
all or any part of the Premises, whether the same shall
be in existence as of the date hereof or created
hereafter, and any modifications, extensions, renewals
and replacements thereof. "Mortgagee" as used herein
means a party having the benefit of a Mortgage, whether
as lessor, mortgagee, trustee or note- holder.
16.3.2 No change in ownership of all or any
portion of the Premises, or assignment of this Lease,
or the rentals provided for herein, shall be binding
upon Tenant for any purpose until after Tenant has been
furnished with written notice from Landlord notifying
Tenant of a change in ownership or assignment.
16.3.3 In the event Tenant receives a written
notice from any party claiming a collateral interest in
this Lease or in the rentals hereunder and, by reason
thereof, a present entitlement to collect the rentals
under this Lease, Tenant shall have the right either
(i) to pay such rentals to such party which payment
shall satisfy any and all liabilities of Tenant to
Landlord with respect to such payment without
obligation on the part of Tenant to make further
inquiry but subject to such party's providing to Tenant
a copy of the instrument pursuant to which such party
claims such entitlement and to such claim being
plausible on the face of such instrument; or (ii) to
withhold such rentals pending the determination by a
court of competent jurisdiction of the entitlement
thereto.
16.4 Surrender of Premises. Except for
changes resulting from eminent domain proceedings, at
the expiration or sooner termination of the Lease Term,
Tenant shall surrender the Premises in the same
condition as the Premises were in upon delivery of
possession thereto under this Lease, reasonable wear
and tear and damage due to casualty (to the extent not
required to be repaired or restored by Tenant under
this Lease) excepted, and shall surrender all keys for
the Premises to Landlord at the place then fixed for
the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the
Premises. Tenant shall at such time remove all of
Tenant's Trade Fixtures including, but not limited to,
equipment, signs,
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furnishings, inventory, machinery, and other personal
property, as well as any alterations or improvements,
and shall repair any damage to the Premises caused
thereby. Any or all of such property not so removed
shall, at Landlord's option, become the exclusive
property of Landlord or be disposed of by Landlord, at
Tenant's sole cost and expense, if not removed by
Tenant after receipt of written notice from Landlord
pursuant to Section 7.2.1. In the event Tenant shall
fail to pay the cost of any such repair, Landlord may
do so and Tenant shall reimburse Landlord for the
amount thereof within five (5) days after receipt of a
bill therefore. If Tenant shall so surrender the
Premises, Tenant shall indemnify Landlord against loss
or liability resulting from the delay by Tenant in so
surrendering the Premises including, without
limitation, any claims made by any succeeding occupant
founded on such delay. Tenant's obligation to observe
or perform this Covenant shall survive the expiration
or other termination of the Lease Term.
16.5 Estoppel Certificates. Each party (each
a "Responding Party") shall at any time upon not less
than ten (10) days prior written notice from the other
party (each a "Requesting Party") execute, acknowledge,
and deliver to the Requesting Party a statement in a
form prescribed by Landlord and reasonably acceptable
to Tenant certifying and acknowledging the following:
(i) that this Lease represents the entire agreement
between Landlord and Tenant, and is unmodified and in
full force and effect (or, if modified, stating the
nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and
the date to which the Fixed Monthly Rent and other
charges are paid in advance, if any; (ii) that there
are not, to the Responding Party's knowledge, any
uncured defaults on the part of the Requesting Party,
or specifying such defaults if any are claimed; and
(iii) any other information reasonably requested by the
Requesting Party. Any such statement may be
conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises or of the business of
the Requesting Party.
16.6 Severability. The invalidity of any
provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the
validity of any other provision hereof.
16. 7 Entire Agreement. This Lease constitutes
the entire agreement between Landlord and Tenant and
supersedes all prior agreements between them with
respect to the Premises, whether written or oral.
16.8 Notices. Any notice required or
permitted to be given hereunder shall be in writing and
may be given by facsimile (provided a copy is
immediately sent by one of the other methods of
providing notice), personal delivery, certified mail,
return receipt requested, or by nationally recognized
overnight courier service delivered to Tenant or to
Landlord, as the case may be, at the FAX numbers or
addresses for each set forth in the Fundamental Lease
Provisions. Either party may by notice to the other
specify a different FAX number or address for notice
purposes. A copy of all notices required or permitted
to be given to Landlord hereunder shall be concurrently
transmitted to such party or parties at such addresses
as Landlord may from time to time hereafter designate
by notice to Tenant.
16.9 Waivers. No waiver by Landlord or Tenant
of any provision hereof shall be deemed a waiver of any
other provision hereof or of any subsequent default by
Landlord or
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Tenant of the same of any other provision. Landlord's
consent to, or approval of, any act shall not be deemed
to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant.
The acceptance of rent hereunder by Landlord shall not
be a waiver of any preceding default by Tenant
hereunder, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's
knowledge of such preceding default at the time of
acceptance of such rent.
16.10 Recording. Either Landlord or Tenant
shall, upon request of the other, execute, acknowledge,
and deliver to the other a "short form" memorandum of
this Lease for recording purposes. Such memorandum
shall be in the form reasonably prescribed by Landlord.
In addition, any termination agreement or quitclaim
deed shall be similarly recorded, which agreement shall
survive the termination of this Lease. The cost of
recording shall be borne by the party requesting such
recording.
16.10.1 At the time that the Commencement Date of
the term of this Lease is firmly established, the
parties shall promptly enter into a Supplemental Lease
Agreement, setting forth the actual commencement and
expiration of the Initial Term and any extensions
thereof and describing the Premises, but containing no
further provisions of this Lease, which Supplemental
Lease Agreement may be recorded by either party. If the
Commencement Date is firmly established before a short
form lease or memorandum of lease has been executed by
the parties, the short form lease or memorandum of
lease and the Supplemental Lease Agreement may be
consolidated into a single recordable document.
16.11 Holding Over. If Tenant remains in
possession of the Premises or any part thereof after
the expiration or termination of the Lease Term, such
occupancy shall be a tenancy from month-to-month upon
all the provisions of this Lease pertaining to the
obligations of Tenant and Tenant shall thereby waive
its rights of notice to quit, but Tenant's right as to
any Renewal Term shall terminate. The monthly rent due
during such hold-over period shall be equal to 125% of
the Fixed Monthly Rent then in effect, and Tenant shall
continue to be obligated to pay all Additional Rent and
other amounts required to be paid by the terms of this
Lease. Notwithstanding the foregoing, in the event that
Landlord and Tenant are engaged in good faith
negotiations for a new lease at the expiration or
termination of the Lease Term, Tenant's continuing
possession shall not constitute holding over for so
long as such negotiations continue. However, Landlord
shall in its sole discretion have the right to notify
Tenant in writing, that Landlord elects to terminate
such negotiations whereupon thirty (30) days after
Tenant's receipt of such notice the monthly rent due
thereafter shall be equal to 150% of the Fixed Monthly
Rent then in effect.
16.12 Choice of Law. The laws of the
jurisdiction in which the Premises are located shall
govern the validity, performance, and enforcement of
this Lease.
16.13 Attorneys' Fees. Should either party
institute any action or proceeding to enforce any
provision hereof or for a declaration of such party's
rights or obligations hereunder, the prevailing party
shall be entitled to receive from the losing party such
amounts as the court may adjudge to be reasonable
attorneys' fees and expenses for services rendered to
the party
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prevailing in any such action or proceeding, and such
fees shall be deemed to have accrued upon the
announcement of such action or proceeding and shall be
enforceable whether or not such action or proceeding is
prosecuted to judgment.
16.14 Waiver of Jury Trial. LANDLORD AND
TENANT EACH HEREBY WAIVE ALL RIGHT TO A TRIAL BY JURY
IN ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BY
EITHER LANDLORD OR TENANT AGAINST THE OTHER ON ANY
MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT,
AND/OR TENANT'S USE OCCUPANCY OF THE PREMISES.
16.15 Liability of Landlord. In the event of
any sale or other transfer of Landlord's interest in
the Premises, Landlord shall be relieved of all
liabilities and obligations of Landlord hereunder
arising after the date of such transfer.
Notwithstanding anything contained herein to the
contrary, neither Landlord nor its officers, directors,
members, agents, representatives, employees or
affiliates, shall have no personal liability in respect
of any of the teffi1s, covenants, conditions or
provisions of this Lease. In the event of a breach or
default by Landlord of any of its obligations under
this Lease, Tenant, and any persons claiming by,
through or under Tenant, shall look solely to the
equity of the Landlord in the Premises for the
satisfaction of Tenant's and/or such persons' remedies
and claims for damages.
16.16 No Merger. There shall be no merger of
this Lease, or the leasehold estate created by this
Lease, with any other estate or interest in the
Premises, or any part thereof, by reason of the fact
that the same person, firm, corporation or other entity
may acquire or own or hold, directly or indirectly, (i)
this lease or the leasehold estate created by this
Lease or any interest in this Lease or in any such
leasehold estate; and (ii) any such other estate or
interest in the Premises or any part thereof. No such
merger shall occur unless and until all persons,
corporations, firms and other entities having an
interest (including a security interest) in (1) this
Lease or the leasehold estate created by this Lease;
and (2) any such other estate or interest in the
Premises, or any part thereof, shall join in a written
instrument effecting such merger and shall duly record
the same.
16.17 Intepretation. The captions by which the
Articles and Sections of this Lease are identified are
for convenience only and shall have no effect upon the
interpretation of this Lease. Whenever the context so
requires, singular numbers shall include the plural,
the plural shall refer to the singular, the neuter
gender shall include the masculine and feminine
genders, and the terms "Landlord" and "Tenant" and
"person" shall include corporations, limited liability
companies, partnerships, associations, other legal
entities, and individuals.
16.18 Relationship of the Parties. Nothing in
this Lease shall create a partnership, joint venture,
employment relationship, borrower and lender
relationship, or any other relationship between
Landlord and Tenant, other than the relationship of
landlord and tenant.
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16.19 Successors. This Lease shall be binding
upon and inure to the benefit of the parties hereto and
their respective personal and legal representatives,
heirs, successors, and assigns.
16.20 Modifications. This Lease may not be
altered, amended, changed, waived, terminated, or
modified in any manner except by a written instrument
executed by Landlord and Tenant.
16.21 Brokerage Fees. Landlord and Tenant each
represent and warrant that they have not employed a
broker in connection with the execution of this Lease.
Landlord and Tenant shall each indemnify and hold the
other harmless from and against any claim or claims for
brokerage or other commissions arising from such party
having employed a broker contrary to its representation
in this Section.
16.22 Waiver of Redemption. To the extent
permitted by law, Tenant hereby waives any and all
rights of redemption with respect to this Lease. Tenant
hereby waives any rights it may have to any notice to
cure or vacate or to quit provided by any current or
future law; provided that the foregoing shall not be
deemed to waive any notice expressly provided in this
Lease.
16.23 Not Binding Until Executed. This Lease
does not constitute an "offer" and is not binding until
fully executed and delivered by Landlord.
16.24. Reasonable Consent. Wherever Landlord's
consent or approval shall be required herein, such
consent or approval shall not be unreasonably or
arbitrarily withheld or delayed unless otherwise set
forth to the contrary in this Lease.
16.25 No Continuous Operation. Notwithstanding
anything contained in this Lease, expressly or
impliedly, to the contrary, and notwithstanding the
agreement herein contained for the payment by Tenant of
rent, it is specifically and expressly understood and
agreed that Tenant shall be under no duty or
obligation, either express or implied, to open, or
thereafter to continuously conduct, its business in the
Premises at any time during the Term. Further, Tenant's
failure to open for business in the Premises shall not
otherwise entitle Landlord to commence or to maintain
any action, suit, or proceeding, whether in law or in
equity, relating in any way to Tenant's failure to open
or thereafter to continuously conduct its business in
the Premises. Without limiting the generality of the
foregoing, Tenant shall have the right to close two
partial days per year to take inventory and shall, at
Tenant's option, be closed Thanksgiving Day, Christmas
Day, New Years Day, and Easter.
16.26 Matters of Record. This Lease is
expressly subject to all matters of record and Tenant
hereby agrees to comply with the terms of all
agreements and other matters of record. The rights of
Tenant set forth herein are subject to the rights of
other parties under agreements of record, and the
exercise of such rights by such parties shall not
constitute a breach under this Lease.
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16.27 Future Easement Agreement. Tenant hereby
acknowledges and understands that as part of the
purchase of the Premises under the Earnest Money
Contract, Landlord is required to execute the Future
Easement Agreement, substantially in the form of
attached Exhibit "G" whereby Landlord will agree to
grant certain utility easements over, across and under
the Premises at the request of Town Center Lakeside,
Ltd. In no event shall Landlord execute the Future
Easement Agreement in a form other than attached
Exhibit "G" without the prior written consent of
Tenant. Landlord agrees that Tenant shall have the
right to review and approve any utility easement
requested by Town Center Lakeside, Ltd. under the
Future Easement Agreement. Tenant shall not
unreasonably withhold or deny its approval of such a
utility easement; provided, however, that in the event
the proposed utility easement does not comply with the
terms, conditions and criteria set forth in Sections
1.02 through 1.06 of the Future Easement Agreement,
Tenant shall have the right to disapprove such an
easement, and Landlord shall take all action necessary
to refuse to grant the requested easement. Upon
receiving a request from Town Center Lakeside, Ltd. for
such a utility easement, Landlord shall promptly
provide to Tenant all documents necessary to review the
proposed location, scope and nature of the proposed
utility easement.
IN WITNESS WHEREOF, the parties have executed this Lease as
of the 1st day of December 2000.
WITNESSES LANDLORD:
TRANSUGAR LIMITED PARTNERSHIP
By Transko Limited Partnership
By Transcontintal Ventures Inc
/s/Shirley C Musselman By/s/John Plunkett Jr
Print Name Shirley C Musselman Its Vice President
/s/ Stephen G Shipi
Print Name Stephen G Shipi
TENANT:
STERLING JEWELERS INC.
/s/ George S Frankovich By Richard W Miller
Print Name George S Frankovich
/s/ Jennifer L Ritchey Its Executive Vice President
Print Name Jennifer L Ritchey
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STATE OF NEVADA)
)ss
COUNTY OF CLARK)
BEFORE ME, a Notary Public, in and for said County and
State, personally appeared John R Plunkett Jr the Vice
President of TransugarLimited Partnership, who acknowledged
that he did sign the foregoing instrument and that the same
is his free act and deed, and the free act and deed of said
limited partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this 29 day of November 2000.
/s/ Lynne B Hall
Notary Public
[notary seal]
STATE OF OHIO )
)SS
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public, in and for said County and
State, personally appeared Richard W Miller the Exec Vice
President of Sterling Jewelers Inc. who acknowledged that he
did sign the foregoing instrument and that the same is his
free act and deed, and the free act and deed of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this 10th day of Nov 2000.
/s/ Jennifer L Ritchey
Notary Public
[notary seal]
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EXHIBIT " A "
Description of the Premises
That certain tract or parcel of land containing 0.89 acre of
land, more or less, located in the S.M. Williams League,
Abstract No.97, Fort Bend County, Texas, being out of and a
part of of that certain 47.0386 acres conveyed by Sugarland
Properties Incorporated, a Texas corporation to Town Center
Lakeside, Ltd. a Texas limited partnership by deed dated
December 21, 1999, filed for record under County Clerk's
File No.1999109355 of the Official Records of Fort Bend
County, Texas. Said 0.89 acre to be more particularly
described by metes and bounds to be furnished to this
company.