ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
made this 6 day of February, 2004, by and between TRANSMADISON,
LLC, a Nevada limited liability company ("Assignor"), having an
address at 1605 Lake Las Vegas Parkway, Henderson, Nevada 89011,
and AEI INCOME & GROWTH FUND 23 LLC, a Delaware limited liability
company, AEI INCOME & GROWTH FUND 25 LLC, a Delaware limited
liability company, and AEI ACCREDITED INVESTOR FUND 2002 LIMITED
PARTNERSHIP, a Minnesota limited partnership (collectively,
"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 451 West 14 Mile Road, Madison Heights, Oakland
County, Michigan (the "Property");
WHEREAS, Assignor has leased the Property to Sterling
Jewelers LLC, a Delaware limited liability company ("Sterling"),
pursuant to that certain Lease Agreement dated August 27, 2003
(the "Lease"); and
WHEREAS, Sterling Jewelers, Inc., a Delaware corporation
("Guarantor") has executed a Guaranty of Lease dated August 27,
2003 (the "Guaranty"); and
WHEREAS, Assignor desires to assign its right, title and
interest in and to the Lease and the Guaranty to AssEI Income &
Growth Fund 23, LLC, an undivided forty-eight percent (48.0%) as
a tenant in common; AEI Income & Growth Fund 25 LLC, an undivided
twenty-one epercent (21.0%) interest as a tenant in common; and
AEI Accredited Investor Fund 2002 Limited Partnership, an
undivided thirty-one percent (31.0%) interest as a tenant in
common, and Assignee desires to assume Assignor's right, title
and interest in and to the Lease and the Guaranty;
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 and the Guaranty.
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
and the Guaranty 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 or the Guaranty.
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 or the Guaranty 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 or the Guaranty 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.
[The remainder of this page has been intentionally left blank.
Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the day and year first set
forth above.
ASSIGNOR: TRANSMADISON, LLC,
a Nevada limited liability company
By: TransMadison Management
Corporation,
a Nevada corporation, its managing
member
By: /s/ John R Plunkett Jr
Name: John R Plunkett Jr
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
The foregoing was acknowledged before me this 29th day of
January, 2004, by John R Plunkett Jr, the President of
TransMadison Management Corp., a Nevada corporation, the manager
of TransMadison, LLC, a Nevada limited liability company, who
acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of said corporation by authority of its
Board of Directors.
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/ Teresa A Neuman
Notary Public
[notary stamp]
ASSIGNEE: AEI INCOME & GROWTH FUND 23, LLC,
a Delaware limited liability company
By: AEI FUND MANAGEMENT XXI, INC.,
a Minnesota corporation,
its General Partner
By: /s/ Patrick Keene
Name: Patrick Keene
Title: CFO
AEI INCOME & GROWTH FUND 25, LLC,
a Delaware limited liability company
By: AEI FUND MANAGEMENT XXI, INC.,
a Minnesota corporation,
its General Partner
By: /s/ Patrick Keene
Name: Patrick Keene
Title: CFO
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
Name: Patrick Keene
Title: CFO
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this 29th day of
January, 2004, by Patrick Keene, the CFO of AEI Fund Management
XXI, INC., a Minnesota corporation, the General Partner of AEI
Income & Growth Fund 23 LLC, a Delaware limited liability
company, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation
by authority of its Board of Directors.
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 stamp]
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this 29 day of
January, 2004, by Patrick Keene, the CFO of AEI Fund Management
XXI, INC., a Minnesota corporation, the General Partner of AEI
Income & Growth Fund 25 LLC, a Delaware limited liability
company, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation
by authority of its Board of Directors.
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 stamp]
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing was acknowledged before me this 29 day of
January, 2004, by Patrick Keene, the CFO 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 stamp]
EXHIBIT "A"
Description of Property
Lots 1 through 5, inclusive, EXCEPT the Northerly 15.00 feet
thereof, including the 1/2 of the vacated alley adjacent thereto;
ALSO Lots 264 through 271 inclusive including the 1/2 of the
vacated alley adjacent to Lot 271 of JOHN R CLAWSON SUBDIVISION,
as recorded in Liber 35, Page 13 of Plats, Oakland County
Records.
Commonly known as 451 West 14 Mile Road, Madison Heights,
Michigan 48071.
Store No. 2405
451 West 14 Mile Rd.
Madison Hts., Michigan
LEASE
BETWEEN
TRANSMADISON, LLC
a Nevada limited liability company
AND
STERLING JEWELERS LLC,
a Delaware limited liability company
Dated: August 27, 2003
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 legal description of the Premises.
Exhibit "B". The site plan showing the location of the
Premises and the Building, parking areas, driveways and common
area and containing other general infoffi1ation relative to the
development of the Premises Site (the "Site Plan").
Exhibit "C". A list of the plans and specifications prepared
and provided by Landlord and approved by Tenant, 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 Sign Lease.
1 .2 Definitions. Unless otherwise defined herein,
capitalized terms used in this Lease shall have the meanings
listed in the Fundamental Lease Provisions.
Building: shall mean the building containing
approximately 5,780 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.
Madison Heights Purchase
and Sale Agreement: shall mean that certain agreement
between SIGN OF THE BEEFCARVER, INC., as
Seller, and Landlord, as buyer, entered into
on or about July 1, 2003 whereby Landlord has
the right to purchase the real property
described on Exhibit " A ".
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 period commencing
upon the execution of this Lease and ending
one hundred fifty (150) days following the
date of the Permit Approval Notice.
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 perform Tenant's Work.
Fixed Monthly Rent: Eleven and one-quarter percent
(11.25%) 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,
inclement weather (i.e. severe rain or snow
stOffi1s), 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.
Gross Leasable Area: shall mean the number of square
feet of the Building. 2
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) Lease Years and any
Partial Lease Years, commencing on the
Commencement Date.
Landlord: TransMadison, LLC
Attention: John R. Plunkett, Jr.
1605 Lake Las Vegas Parkway
Henderson, Nevada 89011
FAX: (702) 564-9886
With a copy to:
Stephen Shapiro, Esq.
1605 Lake Las Vegas Parkway
Henderson, Nevada 89011
FAX: (702) 565-2266
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.
Partial Lease Years: shall mean the period, if any, of
fewer than twelve (12) consecutive calendar
months between the Commencement Date and the
first day of the first Lease Year and the
period, if any.
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 normally sold in Tenant's other stores
and, as incidental thereto, the repair and/or
appraisal of 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, to be
improved by Landlord, more particularly
described in Exhibit "A" together with all
improvements thereon, as generally depicted
on the Site Plan, located in Oakland County,
Michigan.
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" Renewal Terms: two (2) terms of
five (5) year(s) each. Seller: shall mean
Sign of the Beefcarver, Inc.
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.
Tenant: Sterling Jewelers LLC 375 Ghent Road
Akron, Ohio 44333
Attn: Real Estate Department
FAX: (330) 668-5050
With copies to:
Brouse McDowell LP A
1001 Lakeside A venue, 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.
Tenant's 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 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 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 may
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 Monththy 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 "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.
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 permitted 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 applicable zoning codes
or any existing exclusive or restrictive uses then in effect with
respect to the Premises.
3.2 Condition of Premises. 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 permit 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 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 under this
subsection within five (5) days after receipt of a bill therefor.
3.4.8 Landlord shall indemnify, save and hold Tenant
harmless 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 termination 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 (I) 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 termination 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-formaldehyde 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 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 of 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 Permitted 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
pemlission of any duly constituted authority for the purpose of
doing any of the things which Tenant is required or peffi1itted
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 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 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)
any 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 whatsoever (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 in 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 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 or 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 accrue during the period of the contest. Upon
the termination of any such proceedings, Tenant shall 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 returl.1 any unused balance, if any, to Tenant.
Otherwise, Landlord shall return to 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 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 harn1less Landlord from any
increase in Taxes resulting 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, judgn1ents, 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 pay 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 the Premises,
including, without limitation, connection fees (unless provided
for on Exhibit "F") and taxes thereon.
ARTICLE 5
INSURANCE AND INDEMNIFICATION
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:
Insurance Type Amount of Coverage Risks Covered
Commercial General $1,000,000 per occurrence and personal injury, bodily
Liability $2,000,000 in the aggregate injury property damage and
per location contractual liability
Property Damage full replacement value "all risk",including sprinkler
(including earthquake damage
and flood if required by
Landlord)
Business Interruption not less than 12 installments loss of earnings by at least
Fixed of Monthly Rent the least the perils of fire
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 name of Tenant, and, if requested by
Landlord, Landlord, and any mortgagee or beneficiary of Landlord
or such other parties as required under any matter of record,
shall also be named as additional insureds. In addition, all such
policies providing coverage for 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 cause copies of such policies of
insurance or originally executed certificates thereof to be
delivered 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 modification, 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
part 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.
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 $10,000,000, (ii) name Landlord and any
mortgagee or beneficiary of L.andlord 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 of 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 (for 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. The 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 premiums due for the insurance policies required hereby,
Landlord shall have the right, but not the obligation, to procure
or 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 shall 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 reasonable
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 ( other than work
by Landlord);
(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 persons 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 or expense caused by any failure or defect,
structural or non-structura1, 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 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 perforrm 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 normal
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.
7 .2 Removal of Alterations. Except as set forth in
Subsection 7.2.1 below, all Alterations made on the Premises
shall become the property of Landlord at the expiration or
tem1ination 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 (15th) 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 Qfsuch 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]
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 been 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. 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 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 Q 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 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 by Tenant), Tenant shall have the option to
ten11inate 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.
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 the 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 Premises, by giving the other notice of such election witnin
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 so
taken and Tenant, at Tenant's sole cost and expense, shall
restore the remaining portion of the Premises as soon ?S 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 no 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 pal1ial 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 unamortized
Premises Cost.
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
often (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 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 ha\'e
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 th'e 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. Further, from the date Landlord
relets the Premises until the expiration of the Term, or the then
running renewal term, Tenant shall pay Landlord, as it becomes
due, the difference between the rental amount obtained by
Landlord upon such reletting the Premises (which rental amount
shall be upon commercially reasonable terms) and the Fixed
Monthly Rent. In the event the rental amount obtained by Landlord
upon such reletting is greater than the Fixed Monthly Rent, such
excess amount shall be for the benefit of Tenant and applied to
any future amounts owed by Tenant.
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 W ARRANTIES; 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 terms 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 respects, 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, threatened, 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.
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
SIGN LEASE
Landlord and Tenant acknowledge and agree that Seller has
assigned to Landlord that
certain lease agreement dated August 30, 1989 between Loeks-Star
Partners ("Loeks-Star") and Seller, a copy of which is attached
hereto as Exhibit "G" (the "Sign Lease"), whereby Loeks-Star has
the right to lease a portion of the Premises for the operation
and maintenance of a sign subject to the terms of, and as more
fully set forth in, the Sign Lease. In addition, pursuant to the
Madison Heights Purchase Agreement, Landlord has agreed to pay to
Seller a certain portion of the rents and other consideration to
be paid by Loeks-Star under the Sign Lease. Landlord shall be
obligated to make such payments to Seller pursuant to the terms
of the Madison Heights Purchase Agreement and shall have the
right to retain any excess rent and consideration received from
Loeks-Star under the Sign Lease. Landlord shall indemnify, defend
and hold harmless Tenant from any and all claims, demands,
actions, causes of actions, liability, costs and expenses,
including attorneys' fees, arising out of or in any way relating
to the Sign Lease or Landlord's obligation to make payments to
Seller in connection with the Sign Lease. In the event Loeks-Star
fails to properly maintain the sign pursuant to the Sign Lease or
otherwise is in default of the Sign Lease so as to materially
interfere with Tenant's use and occupancy of the Premises
pursuant to the terms of this Lease, Landlord shall, upon receipt
of written notice from Tenant, take such action as is reasonably
necessary to enforce the terms of the Sign Lease. In no event
shall Landlord modify, amend, alter or extend the Sign Lease, or
lease the portion of the Premises subject to the Sign Lease to
another party, without the prior written consent of Tenant which
shall not be unreasonably withheld or delayed.
ARTICLE 14
INTENTIONALL Y OMITTED
ARTICLE 15
CONSTRUCTION
15 .1 Permits. Once Landlord has secured all necessary
Peffi1its it shall provide Tenant with written notice (the
"Permit Approval Notice").
15 .2 Landlord's Work. After having obtained the Peffi1its,
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 and 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 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 perfoffi1 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 of the Premises a satellite dish in
accordance with plans and specifications set forth on Exhibit
"C". Upon expiration or earlier teffi1ination 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) days
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 or ,\ 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.
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 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,
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 ~")
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 F AX 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 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 ~d 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
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 MATTER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR
TENANT'S USE OR 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 terms, 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 Interpretation. 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.
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 witl1held 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
col1tinuously 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.
16.27 Financial Assurance Provision. Notwithstanding
anything to the contrary contained in this Lease, if at any time
during the initial seven (7) years of the. Term (measured from
the Commencement Date) (the "Financial Assurance Period"), the
"tangible net worth" (as hereinafter defined) of Tenant (as of
the time any quarterly or annual financial statement and/or
calculation of tangible net worth is due, as provided below)
falls below the amount equal to fifty percent (50%) of Tenant's
tangible net worth as of January 29, 2000 of Two Hundred Fifty-
Five Million Three Hundred Sixty-Four Thousand Dollars
($255,364,000.00) (a "Financial Assurance Failure Event"), Tenant
shall immediately notify Landlord and, within ten (10) days
following such notice from Tenant (or , in the event Landlord
becomes aware of a Financial Assurance Failure Event prior to
such notice from Tenant, then within ten (10) days following
written notice from Landlord) remit to Landlord a sum (in cash or
other immediately available funds) equal to the aggregate Fixed
Monthly Rent payments scheduled to be paid during the final
twelve (12) months of the Initial Term of this Lease (the
"Financial Assurance Amount"). The Financial Assurance Amount
shall be promptly deposited by Landlord in an interest bearing
account selected by Landlord, in Landlord's sole discretion.
Notwithstanding anything to the contrary contained herein, any
interest which accrues on the Financial Assurance Amount shall be
added to and included as part of the Financial Assurance Amount
for all purposes under this Section.
In connection with the foregoing, on or before the date
which is forty-five (45) days following the expiration of each
fiscal quarter (other than the last fiscal quarter) of Tenant (it
being understood and agreed that Tenant's fiscal year shall end
on the Saturday closest to January 31 in each year) during or
relating to the Financial Assurance Period (~ the dates which are
three (3), six (6) and nine (9) months, respectively, following
the expiration of the previous fiscal year of Tenant), Tenant
shall furnish or cause to be furnished to Landlord current
financial statements and a calculation of Tenant's then current
tangible net worth, all
prepared in accordance with generally accepted accounting
principles (GAAP) and certified by the Chief Financial Officer of
Tenant. In addition, on or before the date which is ninety (90)
days following the expiration of each fiscal year of Tenant
during or relating to the Financial Assurance Period, Tenant
shall (i) furnish or cause to be furnished to Landlord audited,
current financial statements prepared in accordance with
generally accepted accounting principles (GAAP) and certified by
a reputable accounting firm reasonably acceptable to Landlord,
and (ii) a calculation of Tenant's then current tangible net
worth (certified by Tenant's Chief Financial Officer), prepared
in accordance with generally accepted accounting principles
(GAAP). Tenant's failure to timely provide any financial
statement required pursuant to this Section shall, without
further notice, constitute a default under this Lease.
Notwithstanding anything to the contrary herein, all financial
statements provided to Landlord pursuant to the provisions of
this Paragraph shall be subject to the agreements regarding
confidentiality set forth in that certain letter agreement dated
July 12, 2000 and executed by Landlord's representative (John
Plunkett) on July 13, 2000; provided, however, and
notwithstanding the foregoing or any other contrary provision,
Landlord may disclose such financial statements to its
accountants, attorneys and other representatives and/or agents in
connection with the administration of this Lease (which parties
shall also maintain such financial statements as confidential)
and/or in connection with any litigation or other dispute
concerning this Lease (provided Landlord shall not oppose or
contest a motion by Tenant to have such documents maintained
under seal of the decision making authority).
The Financial Assurance Amount shall be held by Landlord,
subject to the following provisions of this Section, as security
for the faithful performance by Tenant of all of the terms,
covenants and conditions of this Lease to be kept and performed
by Tenant during the remainder of the Lease Term. If Tenant
defaults (beyond applicable notice and cure periods) with respect
to any provision of this Lease, including but not limited to the
provisions relating to the payment of Fixed Monthly Rent,
Additional Rent and other charges payable to Landlord under this
Lease, Landlord may (but shall not be required to) use, apply or
retain all or any part of the Financial Assurance Amount for the
payment of any such sum in default or for the payment of any
amount which Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any
other loss or damage which Landlord may suffer by reason of
Tenant's default. Notwithstanding anything to the contrary
contained in this Lease, Landlord's receipt, use or application
of the Financial Assurance Amount shall in no way limit any other
right or remedy available to Landlord under this Lease or
applicable law or equity.
Provided Tenant is not then in default under this Lease
beyond applicable notice and cure periods, and Tenant has not
previously been in default under this Lease beyond applicable
notice and cure periods at any time during the period in which
Landlord was in receipt of the Financial Assurance Amount (or any
portion thereof), then on the first (151) anniversary of the
expiration of the Financial Assurance Period (the "Disgorgement
Commencement Date") and on each anniversary of such date
thereafter, Landlord shall disgorge to Tenant an amount equal to
one-seventh (1/7) of the amount of the Financial Assurance Amount
as of the Disgorgement
Commencement Date until the Financial Assurance Amount is
completely disgorged to Tenant; provided, however, and
notwithstanding the foregoing, the seventh (7th) such payment by
Landlord to Tenant shall include any remaining portion of the
Financial Assurance Amount. In the event Landlord is not required
to disgorge the Financial Assurance Amount (or any remaining
portion thereof) then, provided such amount is not otherwise used
or applied by Landlord in accordance with the other provisions of
this Section, Landlord shall return to Tenant (or, at Landlord's
option, the last assignee of Tenant's interest hereunder) the
remaining balance of the Financial Assurance Amount within thirty
(30) days following the expiration of the Term of this Lease.
For purposes of this Section, "tangible net worth " shall
mean shareholders' equity in Tenant, minus the value of
intangible assets, as defined under generally accepted accounting
principles (GAAP) (as such definition exists as of November 30,
2000), such as, but not limited to, goodwill, patents and
trademarks.
[Rest of Page Intentionally Left Blank with Signatures Contained
on Following Page]
IN WITNESS WHEREOF, the parties have executed this Lease as of
27th day of August, 2003.
WITNESSES LANDLORD:
/s/ Shirley C Musselman TRANSMADISON, LLC
Print Name: Shirley C Musselman a Nevada limited
liability company
By: TransMadison Management Corporation
a Nevada corporation
Its Managing Member
By: /s/ John R Plunkett Jr
Its President
TENANT
STERLING JEWLERS LLC
/s/ George S Frankovich /s/ Robert D Trabucco
Print Name George S Frankovich Its Executive Vice President
STATE OF NEVADA )
COUNTY OF CLARK )
BEFORE ME a Notary Public, in and for said County and State,
personally appeared John R Plunkett Jr the President of
TransMadison LLC a Nevada limited liability company, 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 liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal this 2nd day of September 2003
/s/ Teresa A Neuman
Notary Public
[notary stamp]
STATE OF OHIO )
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public, in and for said County and State,
personally appeared Robert D Trabucco the Executive Vice
President of Sterling Jewelers LLC 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 27th day of August 2003
/s/ Andrea Bencker
Notary Public
EXHIBIT "A
Legal Description of the Premises"
Land in the City of Madison Heights, Oakland County, Michigan
Lots 1,2,3,4, and 5 except the Northerly 15 feet thereof, and one-
half vacated alley adjoining said Lots, and Lost 264, 265 266,
267, 268, 269, 270 and 271 and half vacated alley adjoining Lot
271, JOHN R CLAWSON SUBDIVISION, of the Northeast one-quarter of
the Northeast one quarter of Section 2, Town 1, North Range 11
East, according to the plat thereof as recorded in Liber 35, Page
13 of Plats, Oakland County Records.