This Instrument Prepared By:
John W. Steele, Attorney At Law
Hirschler Fleischer
701 E. Byrd Street
Richmond, Virginia 23219
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment and Assumption of Lease, dated as of March
18, 2005, by and between SILVER CAPITAL NET LEASE FUND II, LLC, a
Virginia limited liability company, having an address c/o Larry
D. Silver, 6001 Broken Sound Parkway NW, Suite 600, Boca Raton,
Florida 33487 ("Assignor") to AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota limited partnership, as to an
undivided twenty percent (20.0%) interest as a tenant in common,
AEI INCOME & GROWTH FUND 24 LLC, a Delaware limited liability
company, as to an undivided fourteen percent (14.0%) interest as
a tenant in common, AEI INCOME & GROWTH FUND 25 LLC, a Delaware
limited liability company, as to an undivided forty-five percent
(45.0%) interest as a tenant in common, and AEI PRIVATE NET LEASE
MILLENNIUM FUND LIMITED PARTNERSHIP, a Minnesota limited
partnership, as to an undivided twenty-one percent (21.0%)
interest as a tenant in common, having an address 30 East
Seventh Street, Suite 1300, St. Paul, MN 55101 (collectively,
"Assignee").
W I T N E S S E T H
WHEREAS, CarMax, Inc., a Virginia corporation (collectively
"Tenant") is the tenant under that certain lease, dated as of
July 28, 2003 (as the same may have been modified, supplemented,
amended or assigned, the "Lease"), between Wilmington Trust FSB,
a federal savings bank, not in its individual capacity, but
solely as co-trustee of the GECBAF Real Estate Trust 2002-O under
Trust Agreement dated as of November 1, 2002, as amended
("Original Landlord") and Tenant, and pursuant to which Lease,
Tenant leases that certain premises described on Exhibit A
attached hereto and made a part hereof, in Lithia Springs,
Georgia (the "Premises");
WHEREAS, a Memorandum of Lease was recorded on August 1,
2003, in Deed Book 13808, page 1851, in the Cobb County, Georgia
records, and in Deed Book 1799, page 374, in the Douglas County,
Georgia records;
WHEREAS, the Lease was assigned to CarMax Auto Superstores,
Inc., by Assignment of Lease dated July 28, 2003, as recorded on
August 1, 2003, in Deed Book 13808, page 1855, in the Cobb
County, Georgia records, and in Deed Book 1799, page 378, in the
Douglas County, Georgia records;
WHEREAS, Original Landlord conveyed the Premises to Assignor
on November 21, 2003, and assigned the Lease to Assignor by
Assignment and Assumption of Lease dated as of November 21, 2003,
as recorded on December 8, 2003, in Deed Book 13898, page 1491,
in the Cobb County, Georgia records, and in Deed Book 1881, page
613, in the Douglas County, Georgia records;
WHEREAS, on this date, Assignor has conveyed the Premises to
Assignee; and
WHEREAS, in connection with Assignor's conveyance of the
Premises to Assignee, Assignor desires to assign its interest in
and to the Lease to Assignee and Assignee desires to assume
Assignor's interest in and to the Lease.
NOW THEREFORE, in consideration of Ten and 00/100 ($10.00)
Dollars and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
agree as of the date hereof (the "Effective Date"), as follows:
1. Effective on the date hereof, Assignor hereby assigns, sets
over, conveys, delivers and transfers to Assignee all of
Assignor's right, title and interest as landlord in and to the
Lease.
2. Assignee hereby assumes and agrees to perform all of the
terms, covenants and conditions of the Lease on the part of
Assignor, as landlord, to be performed on and after the date
hereof.
3. The Assignee hereby indemnifies and agrees to hold the
Assignor harmless from all claims and liabilities incurred,
including reasonable attorneys' fees, in connection with events
or defaults occurring under the Lease from and after the
Effective Date. The Assignor hereby indemnifies and agrees to
hold the Assignee harmless from all claims and liabilities
incurred, including reasonable attorneys' fees, in connection
with events or default occurring under the Lease prior to the
Effective Date.
4. This Assignment shall be construed in accordance with the
laws of the State of Georgia.
5. This Assignment may be executed in any number of
counterparts, each of which so executed shall be deemed original;
such counterparts shall together constitute but one agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this
Assignment as of the day and year first above written.
Signed, delivered, and notarized ASSIGNOR:
in the presence of:
SILVER CAPITAL NET LEASE FUND II,
LLC, a Virginia limited liability company
/s/Patricia A Costa (SEAL)
Signature of Unofficial By: SILVER CAPITAL MANAGER, LLC
Witness a Virginia limited liabilty company
its Manager
/s/ Patricia A Costa (SEAL) By: /s/ Paul S Elkin
Signature of Notary Public Paul S Elkin
Executive Vice President
[SEAL]
My commission expires:
Signed, delivered, and notarized ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf AEI INCOME & GROWTH FUND XXI
Signature of Unofficial Witness LIMITED PARTNERSHIP, a Minnesota
limited partnership
/s/ Jennifer L Schreiner By: AEI Fund Management XXI, Inc.,
Signature of Notary Public its General Partner
[SEAL] By: /s/ Robert P Johnson
Robert P Johnson, its President
My commission expires:
Signed, delivered, and notarized ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf AEI INCOME & GROWTH FUND 24 LLC
Signature of Unofficial Witness a Delaware limited liability company
/s/ Jennifer L Schreiner By: AEI Fund Management XXI,Inc.,
Signature of Notary Public its Managing Member
[SEAL] By: /s/ Robert P Johnson
Robert P Johnson, its President
My commission expires:
Signed, delivered, and notarized ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf AEI INCOME & GROWTH FUND 25 LLC
Signature of Unofficial Witness a Delaware limited liability company
/s/ Jennifer L Schreiner By: AEI Fund Management XXI,Inc.,
Signature of Notary Public its Managing Member
[SEAL] By: /s/ Robert P Johnson
Robert P Johnson, its President
My commission expires:
Signed, delivered, and notarized ASSIGNEE:
in the presence of:
/s/ Linda A Bisdorf AEI PRIVATE NET LEASE MILLENNIUM
Signature of Unofficial Witness FUND LIMITED PARTNERSHIP a
Minnesota limited partnership
/s/ Jennifer L Schreiner By: AEI Fund Management XVIII,Inc.,
Signature of Notary Public its Managing Member
[SEAL] By: /s/ Robert P Johnson
Robert P Johnson, its President
My commission expires:
EXHIBIT A
(1977 Thornton Road, Lithia Springs, Douglas County and Cobb
County, Georgia)
Legal Description:
ALLTHAT TRACT or parcel of land lying and being in Land Lots 421
and 482 of the 18th District of Douglas and Cobb Counties,
Georgia, and being more particularly described as follows:
COMMENCING at the intersection of the northerly right of way of
Thornton Road (290 foot right of way) and the west line of Land
Lot 482; thence south 50 degrees 55 minutes 15 seconds east for
41.76 feet, to a 1/2 inch rebar set, and the Point of Beginning:
thence departing the right of way of Thornton Road, north 25
degrees 55 minutes 10 seconds east, for 1,140.63 feet, to a 1/2
rebar on the southerly bank of Carroll Creek; thence continuing
along said line, north 25 degrees 55 minutes 10 seconds east, a
distance of 11.52 feet, to the centerline of Carroll Creek; thence
along the centerline of Carroll Creek the following bearing and
distances: south 78 degrees 11 minutes 32 seconds east, for 56.74
feet; thence north 83 degrees 11 minutes 55 seconds east, for
184.43 feet; thence south 47 degrees 35 minutes 48 seconds east,
for 342.71 feet; thence north 61 degrees 34 minutes 57 seconds
east, for 46.11 feet; thence south 30 degrees 29 minutes 28
seconds east, for 159.12 feet; thence south 78 degrees 35 minutes
46 seconds east, for 229.72 feet, to the east line of Land Lot
421; thence departing the centerline of Carroll Creek and
continuing along the easterly line of Land Lots 421 and 482, south
07 degrees 36 minutes 22 seconds west,for 22.76 feet,to a 1/2 inch
rebar; thence south 07 degrees 36 minutes 22 seconds west, for
231.54 feet, to a metal fence post in concrete cut off at ground
level; thence departing the easterly line of Land Lot 482, south
66 degrees 36 minutes 20 seconds west, for 1,286.85 feet, to a 1/2
inch rebar on the northerly right of way of Thornton Road (290
foot right of way); thence continuing along the northerly right of
way of Thornton Road the following bearings and distances: north
48 degrees 41 minutes 08 seconds west, for 46.51 feet; thence
north 49 degrees 46 minutes 25 seconds west, for 103.93 feet;
thence north 50 degrees 55 minutes 15 seconds west, for 16.51
feet, to the Point of Beginning, containing 806,639 square feet,
or 18.518 acres, more or less, as shown on ALTA/ACSM Land Title
Survey for AEI Fund Management, Inc., and its affiliated entities;
and Chicago Title Insurance Company, made by Greenhorne & O'Mara,
Inc., bearing the seal of John B. Commander, Ga R.L.S. No. 2852,
dated February 23, 2005, revised March 3, 2005.
#651361 v3 018622.03274
Deed Book 13808 Pg 1855
Filed and Recorded Au-01-2003 09:55
2003-0185290
/s/ Jay C. Stephenson
Jay C Stephenson
Clerk of Superior Court Cobb Cty. Ga.
Return to Shirley Herren
Trinity Title Ins. Agency
437 E. Ponce De Leon Ave:
Decatur GA 30030-1938
PREPARED BY AND WHEN RECORDED, PLEASE RETURN TO: 4740902,
T. Craig Harmon
McGuire Woods, L.L.P.
One James Center
Richmond, Virginia 23219
Lithia Springs, Georgia
ASSIGNMENT OF LEASE
THIS ASSIGNMENT is made as of the 28th day of Ju1y, 2003 by
CARMAX, INC., a Virginia corporation (the" Assignor"), to .CARMAX
AUTO SUPERSTORES, INC., a Virginia corporation (the "Assignee")
RECITALS
1. Pursuant to Lease Agreement dated as of July , 2003,
between Assignor and Wilmington Trust FSB, a federal savings bank,
not in its individual capacity, but solely as co- trustee of the
GECBAF Real Estate Trust 2002-0 under Trust Agreement dated as of
November 1, 2002, as amended (the "Lease"), Assignor leased
certain property in Cobb and Douglas Counties, located at 1977
Thornton Road, Lithia Springs, Georgia (the "Property").
2. Assignor now desires to assign its interest m the Lease
to Assignee. NOW, THEREFORE, for and in consideration of the sum
of One Dollar ($l.00) and other valuable consideration, receipt of
which is hereby acknowledged, Assignor hereby assigns and
transfers to Assignee all of Assignor's right; title and interest
as tenant in and to the Lease. Assignee hereby assigns and agrees
to be bound by all of the obligations of the tenant under the
Lease to be paid or performed during the period beginning on the
date hereof
IN WITNESS WHEREOF. Assignor and Assignee have caused this
instnm1ent. to be executed by their respective officers. duly
authorized.
Signed, sealed and delivered CARMAX, INC
in the presence of: By: /s/ Thomas W Reedy Jr
/s/ Molly Busch Name: Thomas W Reedy Jr
Unofficial Witness Title: Vice President and Treasurer
ATTEST:
By: Stuart A Heaton
/s/ Leslie D Frame Name: Stuart A Heaton
Notary Public Title Secretary
My Commission Expires September 30, 2006
[Notary Seal] [Corporate Seal]
Signed, sealed and delivered CARMAX AUTO SUPERSTORES INC
in the presence of: By: /s/ James C Wilson
/s/ Molly Busch Name: James C Wilson
Unofficial Witness Title: Assistant Secretary
ATTEST:
By: Stuart A Heaton
/s/ Leslie D Frame Name: Stuart A Heaton
Notary Public Title Secretary
My Commission Expires September 30, 2006
[Notary Seal] [Corporate Seal]
Location 37243
1977 Thornton Road
Lithia Springs, GA
LEASE
Between
CARMAX, INC.,
a Virginia corporation,
as TENANT
and
WILMINGTON TRUST FSB, a federal savings bank, not in its
individual capacity, but solely as co-trustee of the GECBAF REAL
ESATE TRUST 2002-O under Trust Agreement dated as of November 1,
2002, as amended
as Landlord
Date July 28, 2003
TABLE OF CONTENTS
1. CERTAIN DEFINITIONS 1
2. DEMISE OF PREMISES 4
3. TERM 4
4. RENT 5
5. NET LEASE; TRUE LEASE 7
6. TITLE AND CONDITION 8
7. TAXES 9
8. USE 9
9. MAINTENANCE AND REPAIR 12
10. LIENS 13
11. ALTERATIONS 13
12. CONDEMNATION 14
13. INSURANCE 15
14. DAMAGE, DESTRUCTION 17
15. RESTORATION 18
16. SUBORDINATION TO FINANCING 19
17. ASSIGNMENT, SUBLEASING 20
18. PERMITTED CONTESTS 24
19. DEFAULT 25
20. LANDLORD'S REMEDIES 26
21. NOTICES 28
22. MEMORANDUM OF LEASE; ESTOPPEL CERTIFICATES 28
23. SURRENDER 29
24. NO MERGER OF TITLE 29
25. LANDLORD EXCULPATION 30
26. HAZARDOUS SUBSTANCES 30
27. ENTRY BY LANDLORD 32
28. STATEMENTS 32
29. NO USURY 32
30. BROKER 32
31. WAIVER OF LANDLORD'S LIEN 33
32. NO WAIVER; CONSENTS 33
33. SEPARABILITY 33
34. INDEMNIFICATIONS 33
35. EASEMENTS, ZONING AND ENTITLEMENTS 34
36. HEADINGS 35
37. MODIFICATIONS 35
38. SUCCESSORS, ASSIGNS 35
39. COUNTERPARTS 35
40. GOVERNING LAW 35
41. WAIVER OF JURY TRIAL 35
42. ATTORNEYS' FEES 35
43. EXPANSION REIMBURSEMENT AGREEMENT 35
44. EXCULPATION OF TRUSTEE 37
THIS LEASE AGREEMENT is made as of this day of July, 2003,
by and between WILMINGTON TRUST FSB, a federal savings bank, not
in its individual capacity, but solely as co-trustee of the GECBAF
REAL ESTATE TRUST 2002-0 under Trust Agreement dated as of
November 1, 2002, as amended, with offices at 1100 North Market
Street, Wilmington, Delaware 19890; Attention: Corporate Trust
Administration ("Landlord"), and CARMAX, INC., a Virginia
corporation, having its principal office at 4900 Cox Road, Glen
Allen, Virginia 23060-3317 ("Tenant").
In consideration of the rents and provisions herein
stipulated to be paid and performed, Landlord and Tenant hereby
covenant and agree as follows:
1. CERTAIN DEFINITIONS.
(a) "Additional Rent" shall mean all sums required to be
.paid by Tenant to Landlord hereunder other than Basic Rent,
which sums sha1l constitute rental hereunder.
(b ) "Affiliate" shall mean any person or entity that is
directly or indirectly controlled or owned by Tenant or
Landlord, as applicable. For purposes of this Lease, the term
"control" shall mean the ownership of fifty percent (50%) or
more of the stock or other voting interest of the controlled
entity.
(c) "Alteration" or ,"Alterations" shall mean any or all
changes, additions or improvements to or of any of the
Improvements, both interior or exterior, and ordinary and
extraordinary; provided, however, installation and
replacements of any existing wall covering, floor covering or
ceiling coverings, fixtures and equipment of any of the
Improvements shall not be deemed an Alteration.
(d) "Award" shall mean the entire award payable to
Trustee by reason of a Condemnation.
(e) "Basic Rent" shall mean the annual rent payable in
monthly installments in advance on the first day of each month
during each year of the Term, as such Term may be extended in
accordance with Paragraph 3, and as such annual rent may be
escalated in accordance with Paragraph 4(b ).
(f) "Commencement Date" shall mean the Commencement
Date as defined in Paragraph 3
(g) "Condemnation" shall mean a Taking and/or a
Requisition
(h) "Default Rate" shall mean an annual rate of interest
equal to the lesser of (i) the Prime Rate plus five hundred
(500) basis points or (ii) twelve percent (12%).
(i) "Discount Rate," with. respect to the calculation
of the present value of any future payment, means a rate equal to
the interpolated rate of yield for U.S. Treasury obligations as
listed on the Bloomberg :financial web site currently located at
http://llwww.bloomberg.com/marketslrateslindex.html. (or if such
site ceases to exist, the successor to such site or a comparable
site) and having the same maturity as the date at which such
future payment is to be made.
(j) "Environmental Requirements" shall mean
Environmental Requirements as defined in Paragraph 26(a).
(k) "Environmentally Hazardous Business" shall mean
Environmentally Hazardous Business as defined in Paragraph 8(a).
(l) "Event of Default" shall mean an Event of Default as
defined in Paragraph 19.
(m) "Hazardous Materials" shall mean Hazardous Materials as
defined in Paragraph 26(a).
(n) "Insurance Requirement" or "Insurance Requirements"
shall mean, as the case may be, anyone or more of the terms
of each insurance policy required to be carried by Tenant
under this Lease and the requirements of the issuer of such
policy, and whenever Tenant shall be engaged in making any
Alteration or Alterations, repairs or construction work of
any kind (collectively, "Work"), the term "Insurance
Requirement" or "Insurance Requirements" shall be deemed to
include a requirement that Tenant obtain or cause its
contractor to obtain completed value builder's risk insurance
when the estimated cost of the Work in anyone. instance
exceeds the sum of One Hundred Thousand Dollars ($100,000.00)
and that Tenant or its contractor shall obtain worker's
compensation insurance or other adequate insurance coverage
covering all persons employed in connection with the Work,
whether by Tenant, its contractors or subcontractors and with
respect to whom death or bodily injury claims could be
asserted against Landlord. .
(o) "Inventory" shall mean all items of personal property
offered for sale, rental or lease by Tenant at or on the
Leased Premises, including, without limitation. all
automobiles and automobile parts and accessories.
(P) "Law" shall mean any constitution, statute, ordinance,
regulation or rule of law.
(q) "Legal Requirement" or "Legal Requirements" shall mean,
as the case may be, anyone or more of all present and future
laws, codes, ordinance (including, without limitation, zoning
ordinances and land use requirements), orders, judgments,
decrees, injunctions, rules, regulations and requirements,
even if unforeseen or extraordinary, of every duly
constituted governmental authority or agency (but excluding
those which by their terms are not applicable to and to not
impose any obligation on Tenant, Landlord or the Leased
Premises) and all covenants, restrictions and conditions now
or hereafter of record which may be applicable to Tenant, to
Landlord or to any of the Leased Premises, or to the use,
manner of use, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction of any of the Leased
Premises, even if compliance therewith (i) necessitates
structural changes or improvements (including changes
required to comply with the; " Americans with Disabilities
Act") or results in interference with the use or enjoyment of
any of the Leased Premises or (ii) requires Tenant to carry
insurance other than as required by the provisions of this
Lease.
(r) "Lender" shall mean the entity identified "to
Tenant as such in writing, which makes a Loan to Landlord, secured
in whole or in part by a Mortgage and evidenced by a Note or Notes
or which is the holder of a Mortgage and Note as a result of an
assignment thereof, and when a Mortgage secures multiple Notes
held by one or more noteholders, the trustee acting on behalf of
such holders, provided such trustee has been identified as such in
writing to Tenant.
(s) "Loan" shall mean a loan made by a Lender to
Landlord secured in whole or in part by a Mortgage and evidenced
by a Note or Notes.
(t) "Mortgage" shall mean a mortgage or similar security
instrument hereafter executed covering the Leased Premises
from Landlord to Lender.
(u) "Note" or "Notes" shall mean a promissory note or
notes hereafter executed from Landlord to Lender, which Note or
Notes will be secured in whole or in part by a Mortgage and an
assignment of leases and rents.
(v) "Permitted Encumbrances" shall mean those
covenants, restrictions, reservations, liens, conditions,
encroachments, easements and other matters of title that affect
the Leased Premises as of Landlord's acquisition thereof,
excepting, however, any such matters arising from the acts of
Landlord (such as liens arising as a result of judgments against
Landlord).
(w) "Prime Rate" shall mean the prime rate of interest
as published in the Wall Street Journal from time to time.
(x) "Proceeds" shall mean the entire proceeds paid by any
third party insurer under any property casualty insurance
maintained pursuant to Paragraph 13(a).
(y) "Purchase Offer Event" shall mean Purchase Offer
Event as defined in Paragraph 8(a)
(z) "Requisition" shall mean any temporary condemnation or
confiscation of the use or occupancy of any of the Leased
Premises by any governmental authority, civil or military,
whether pursuant to an agreement With such governmental
authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
(aa) "Restoration" shall mean the restoration of the
Leased Premises after any Taking or damage by casualty as
nearly as possible to their value, condition and character
existing immediately prior to such Taking or damage,
including the actual expenses of Tenant.
(bb) "State" shall mean the State or Commonwealth in
which the Leased Premises are situated.
(cc) "Takinng" shall mean any taking of any of the
Leased Premises in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by
reason of any agreement with any condemnor in settlement of
or under threat of any such condemnation or other eminent
domain proceedings or by any other means, or any de facto
condemnation.
(dd) "Tangible Net Worth" shall mean Tenant's.
equity (or capital, as applicable), less officer and affiliate
receivables; less intangibles, in accordance with generally
accepted accounting principles ("GAAP').
(ee ) "Taxes" shall mean taxes of every kind and nature
(including real, ad valorem and personal property, income,
franchise, withholding, profits and gross receipts taxes),
.all charges and/or taxes for any easement or agreement
maintained for the benefit of any of the Leased Premises,
all general and special assessments, levies, permits,
inspection and license fees, all utility charges, all ground
rents, and all other public charges and/or taxes whether of
a like or different nature, even if unforeseen or
extraordinary , imposed upon or assessed, prior to or during
the Term, against Landlord, Tenant or any of the Leased
Premises as a result of or arising in respect of the
.occupancy, leasing, use, maintenance, operation,
management, repair or possession thereof, or any activity
conducted on the Leased Premises, or the Basic Rent or
Additional Rent, including without limitation, ~y gross
income tax, sales tax, occupancy tax or excise tax levied by
any governmental body on or with respect to such Basic Rent
or Additional Rent.
(ff) "Term" shall mean the initial term of this Lease,
as extended pursuant to any renewal that has become
effective.
(gg) "Termination Date" shall mean the Termination Date
as defined in Paragraph 12(b).
(hh) "Trade Fixtures" shall mean the items of
personality, which are owned by Tenant and used in the
operation of the business conducted on the Leased Premises
as described in Exhibit .'C" attached hereto.
2. DEMISE OF PREMISES. Landlord hereby demises and lets to
Tenant and Tenant hereby takes and leases from Landlord for the
Tenn. and upon the provisions hereinafter specified the following
described property (collectively, the "Leased Premises") (i) the
premises described in Exhibit " A " attached hereto and made a
part hereof together with the easements, rights and appurtenances
thereto belonging or appertaining (collectively, the "Land");
(ii) the buildings, structures, fixtures and other improvements
constructed and to be constructed on the Land (collectively, the
"Improvements"), together with all additions and accessions
thereto, substitutions therefor and replacements thereof
permitted by this Lease excepting therefrom Tenant's Trade
Fixtures and all property that does not constitute real property
under the laws of the State.
3. TERM. Tenant shall have and hold the Leased Premises
for an initial term (the "Initial Term") commencing on the date
hereof (the "Commencement Date") and ending on July 31,2018 (the
"Expiration Date"). The Initial Term, any Extended Term (as
defined below) and any renewal terms (as provided below) may be
referred to collectively as the "Term". Provided the Lease shall
not have been terminated pursuant to the provisions hereof, this
Lease and the Term thereof shall be automatically extended for
four (4) renewal terms of five (5) years each upon condition that
Tenant may cancel any renewal term by giving notice, in
accordance with the provisions of Paragraph 21, to Landlord at
least six (6) months prior to the expiration of the then current
Term. If, prior to such six (6) month period, Tenant does not
give Landlord written
notice of its intent to cancel the then applicable renewal term,
Tenant's right to cancel such renewal term shall continue until
ten (10) business days after Landlord has given Tenant written
notice of Landlord's election to continue the renewal term, during
which ten (10) business day period Tenant may exercise its right
to cancel such renewal term whereupon the Teffi1 of this Lease
shall be terminated as if such cancellation notice had been given
prior to such six (6) month period described above. Upon the
giving of such notice of cancellation by Tenant, this Lease and
the Term thereof shall terminate and come to an end on the
Expiration bate of the then current Term. Any such extension or
renewal of the Term shall be subject to all of the provisions of
this Lease, and all such provisions shall continue in full force
and effect. In the event that Tenant exercises its option to
cancel any renewal Term as hereinabove provided, then Landlord
shall have the right in addition to any rights granted in
Paragraph 27, during the remainder of the Term then in effect to
(i) advertise the availability of the Leased Premises for sale or
for reletting, and (ii) show the Leased Premises to prospective
purchasers, lenders or tenants at such reasonable times during
noffi1al business hours as Landlord may select. If Tenant shall
timely give such notice of its election to cancel any renewal
option, then all options with regard to subsequent extensions or
renewals of the Term shall expire and be null and void.
Notwithstanding the foregoing, Tenant shall have the right to
extend the Initial Term of the Lease (the "Extension Option") at
any time within the first five (5) years of the Initial Term by
the period of time necessary to make the then remaining Initial
Term extend for fifteen (15) years from the date of Tenant's
exercise of the Extension Option (the "Extended Term"). At the end
of such Extended Term, the Lease shall renew for the renewal terms
as set forth above. Notwithstanding the provisions of Section 4
below, the Rent for the first five (5) years of the Extended Term
(beginning on the date Tenant exercises the Extension Option and
terminating on the 5th anniversary thereof) shall be the Rent
amount in effect on the date Tenant exercises the Extension
Option. After the expiration of such initial five (5) year period
of the Extended Term, Rent shall escalate as set forth in Section
4 below, and the date Tenant exercised the Extension Option shall
act as the Commencement Date for purposes of setting the Basic
Rent Adjustment Date pursuant to Section 4.(b )(ii).
4. RENT
(a) BASIC RENT. The initial Basic Rent will be as set
forth in Exhibit "B" From and after the Commencement Date, Tenant
shall pay the Basic Rent in equal monthly installments in advance
on the .first day of each month (each a "Basic Rent "Payment
Date") during each Lease year. If the Commencement Date is not the
first day of a month, then the Basic Rent from the Commencement
Date until the first day of the following month shall be prorated
on a per diem basis at the rate of one thirtieth (1/30) of the
monthly installment of the Basic Rent payable during the first
Lease Year, and Tenant shall pay such prorated installment of the
Basic Rent on the Commencement Date. All sums payable by Tenant
under this Lease, including but not limited to, Basic Rent,
Additional Rent (as hereinafter defined) or otherwise, shall be
paid to Landlord in legal tender of the United States, without
setoff, deduction or demand, by check, ACH transfer or direct
deposit wire transfer of immediately available funds to the
following bank account, or to such other party or address as
Landlord may designate in writing:
DEUTSCHE BANK TRUST COMPANY - AMERICAS
Post Office Box 318
Church Street Station
New York; New York 10008-0318
Credit to the Account of GE Capital BAF
ABA #021001033
Account No.50-261-508
RE:#
Notify: Susan Nunmaker at (425) 450-3516
Landlord's acceptance of Basic Rent of Additional Rent after it
shall have become due and payable shall not excuse a delay upon
any subsequent occasion or constitute a waiver of any of
Landlord's rights hereunder.
(b) BASIC RENT ESCALATION.
(i) For the purpose of this Section, the following
definitions shall apply: (A) the ten1i "Base Month" shall
mean the calendar month which is five (5) years prior to the
applicable Basic Rent Adjustment Date (as hereinafter
defined) and (B) the term "Price Index" shall mean the
"Consumer Price Index-United States City Average-All Urban
Consumers-all items-not seasonally adjusted" published by the
Bureau of Labor Statistics of the United States Department of
Labor (1982-84 = 100), or, in the event such index is
discontinue4 or no longer readily available, any renamed
local index covering the metropolitan area in which the
Premises are located or any other successor or substitute
index appropriately adjusted
(ii) Effective as of: (A) the fifth (5th) anniversary of
the commencement Date; and (B) each fifth (5th) year
anniversary date thereafter throughout the Term (each, a
"Basic Rent Adjustment Date"), the Basic Rent then in effect
shall immediately be increased by the lesser of (i) seven and
one half percent (7.5%) of the then current Basic Rent or
(ii) 200% of the amount by which the Price Index in effect
immediately prior to the applicable Basic Rent Adjustment
Date has increased over the Price Index in effect for the
month preceding the Base Mont4; provided that in no event
shall the Basic Rent be decreased on any Basic Rent
Adjustment Date (but provided that the Basic Rent may remain
the same).
(iii) If the Price Index for the calendar month
immediately preceding the applicable Basic Rent Adjustment Date is
not available as of any Basic Rent Adjustment Date, then the
calculation set forth in Subparagraph (ii) of this Section shall
be made using the most current available Price Index (and re-
calculated as soon as the Price Index for the calendar month
immediately preceding the applicable Basic Rent Adjustment Date
becomes available). In no event shall any adjustment made pursuant
to this Section, or any decrease in the Price Index, ever result
in a decrease in the Basic Rent (as previously increased).
(c ) LATE :PAYMENT. If any installment of Basic
Rent is not paid on the date due, Tenant shall pay Landlord
interest on such overdue payment at-the Default Rate, accruing
from the due date of such payment until the same is paid.
(d) ADDITIONAL RENT. Tenant shall pay and discharge
before the imposition of any fine, lien, interest or penalty may
be added thereto for late payment thereof, as Additional Rent,
all other an1ounts and obligations which Tenant assumes or agrees
to payor discharge pursuant to this Lease, together with every
fine, penalty, interest and cost which may be added by the party
to whom such payment is due for nonpayment or late payment
thereof. In the event of any failure by Tenant to payor discharge
any of the foregoing, Landlord shall have all, rights, powers and
remedies provided herein, by law or otherwise, in the event of
nonpayment of Basic , Rent.
(e) LATE FEE. If Tenant fails to make any payment
of Basic Rent, Additional Rent or any other sum on or before
the date that is five (5) days after Tenant's receipt of
written notice from Landlord that the same is past due, then
Tenant shall pay to Landlord a late charge of five percent
(5%) of the amount of such payment; provided, however, that
nothing contained herein shall be construed as permitting
Landlord to charge or receive interest in excess of the
maximum rate allowed by law. Such late charge shall
constitute Additional Rent due hereunder without any notice
or demand. .
5 NET LEASE: TRUE LEASE.
(a) NET LEASE. It is the intention of the parties
hereto that the obligations of Tenant hereunder shall be separate
and independent covenants and agreements, and that Basic Rent
Additional Rent and all other sums payable by Tenant hereunder
shall continue to be payable in all events, and that the
obligations of Tenant hereunder shall continue unaffected, unless
the requirement to pay or perform the same shall have been
terminated pursuant to an express provision of this Lease. This
is a net Lease and Basic Rent Additional Rent and all other sums
payable hereunder by Tenant shall be paid without notice or
demand and without setoff, counterclaim, recoupment abatement
suspension, deferment din1inution, deduction, reduction or
defense, except as otherwise specifically set forth herein. This
Lease shall not terminate and Tenant shall not have any right to
terminate this Lease during the Term (except as otherwise
expressly provided herein). Tenant agrees that except as
otherwise expressly provided herein, it shall not take any action
to terminate, rescind or avoid this Lease notwithstanding (i) the
bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Landlord (ii) the exercise of any remedy,
including foreclosure, under the Mortgage, (iii) any action with
respect to this Lease (including, the disaffirmance hereof) which
may be taken by Landlord under the Federal Bankruptcy 'Code or by
any trustee, receiver or liquidator of Landlord or by any court
under the Federal Bankruptcy Code or otherwise, (iv) the Taking
of the Leased Premises or any portion thereof (except as
specifically provided in Paragraph 12(b) below), (v) the
prohibition or restriction of Tenant's use of the Leased Premises
under any Legal Requirement or otherwise, (vi) the destruction of
the Leased Premises or any portion thereof, (vii) the eviction of
Tenant from possession of the Leased Premises, by paramount title
or otherwise, or (viii) default by Landlord under any other
agreement between Landlord and Tenant. Tenant waives all rights
which are not expressly stated herein, but which may now or
hereafter otherwise be conferred by law, to quit terminate or
surrender this Lease or any of the Leased Premises; to any
setoff, counterclaim, recoupment abatement suspension, deferment
diminution, deduction, reduction or defense of or to Basic Rent
Additional Rent or any other sums payable under this Lease, and
for any statutory lien or offset right against Landlord or its
property, each except as otherwise expressly provided herein.
(b) TRUE LEASE. Landlord and Tenant agree that this
Lease is a true lease and does not represent a :financing
arrangement. Each party shall reflect the transaction represented
hereby in all applicable books, records and reports (including
income tax. filings) in a manner consistent with ,"true lease"
treatment rather than "financing" treatment.
(c ) UTILITIES. Tenant shall pay directly to the proper
authorities charged with the collection thereof all charges
for water, sewer, gas, oil, electricity, telephone and other
utilities or services used or consumed on the Leased Premises
during the Term, whether designated as a charge, tax,
assessment, fee or otherwise, including, without limitation,
water and sewer use charges and taxes, if any, all such
charges to be paid as the same from time to tin1e become due.
It is understood and agreed that Tenant shall make its own
arrangements for the installation or provision of all such
utilities and that Landlord shall be under no obligation to
furnish any utilities to the Leas~ Premises and shall :not be
liable for any interruption or failure in the supply of any
such utilities to the Leased Premises.
6 TITLE AND CONDITION.
(a) CONDITION. The Leased Premises are demised and let
subject to the Permitted Encumbrances and all Legal
Requirements and Insurance Requirements, including any
existing violation of any thereof, without representation or
warranty by Landlord; it being understood and agreed,
however, that the recital of the Permitted Encumbrances
herein shall not be construed as a revival of any thereof
which for any reason may have expired.
(b) NO REPRESENTATIONS Without limiting the effect of
Landlord's covenant set forth in Paragraph 8( c ), the
Landlord makes no, and expressly hereby denies any,
representations or warranties regarding the condition or
suitability of, or title to; the Leased, Premises. Tenant
agrees that it takes the Leased Premises ''as is," without
any such representation or warranty.
(c) ASSIGGMENT OF GUARANTIES. Landlord hereby conditionally
assigns, without recourse or warranty whatsoever, to Tenant,
all warranties, guaranties and indemnities, if any, express
or implied, and similar rights which Landlord may have
against any manufacturer, seller, engineer, contractor or
builder in respect of any of the Leased Premises, including,
but not limited to, any rights and remedies" existing under
contract or pursuant to the Uniform Commercial Code as
adopted in the State (collectively, the "Guaranties"). Such
assignment shall remain in effect so long as no Event of
Default exists hereunder or until the termination of this
Lease. Landlord shall also retain the right to enforce any
Guaranties so assigned in the name of Tenant upon the
occurrence of an Event of Default hereunder. Landlord hereby
agrees to execute and deliver, at Tenant's sole cost and
expense, such further documents, including powers of
attorney, as Tenant may reasonably request (and which in the
good faith judgment of Landlord, do not adversely affect a
substantial general interest of Landlord), in order that
Tenant may have the full benefit of the assignment effected
or intended to be effected by this Paragraph 6(c). Upon the
expiration or termination of this Lease, the Guaranties shall
automatically revert to Landlord. The foregoing provision of
reversion shall be self-operative and no further
instrument of reassignment shall be required. In confirmation of
such reassignment, Tenant shall execute and deliver promptly any
certificate or other instrument that Landlord may request at
Tenant's sole cost and expense. Any monies collected by Tenant
under any of the Guaranties after the occurrence of and during the
continuation of an Event of Default hereunder shall be held in
trust by Tenant and promptly paid over to Landlord
7. TAXES Tenant shall, subject to the provisions of
Paragraph 18 hereof relating to contests, before interest or
penalties are due thereon, pay and discharge all Taxes. On or
before the Commencement Date, Landlord shall notify the
appropriate taxing authorities to deliver directly to Tenant all
statements and invoices for the Taxes, effective as of the
Commencement Date. Landlord shall cooperate with Tenant to the
extent necessary to effectuate the foregoing notice and shall
endeavor to promptly deliver to Tenant any bill or invoice it
receives with respect to any Taxes. If Landlord fails to timely
deliver to Tenant any bill or invoice it receives with respect to
any Taxes within five (5) business days after Landlord's receipt
of such bill or invoice or at least thirty (30) business days
prior to the delinquency of such Taxes, whichever is later,
Landlord shall be responsible for any and all interest, penalties
or fees that result from the late payment of such Taxes by Tenant
if such payment is late due to such delay in delivery of such bill
or invoice to Tenant. As soon as practicable after the payment
thereof, Tenant shall deliver to Landlord evidence of each such
payment. To the extent that any such Taxes are imposed upon
Landlord, at Landlord's option, Tenant shall either pay such Taxes
directly to the taxing authority or reimburse Landlord for such
Taxes. If the term expires or is terminated on a day other than
the first day or the last day of a tax year, then Tenant's
liability for Taxes for such tax year shall be apportioned by
multiplying the amount of the Taxes for the full tax year by a
fraction, the numerator of which is the number of days during such
tax year falling within the Term hereof, and the denominator of
which is three hundred sixty-five (365). Nothing herein shall
obligate Tenant to pay, and the term "Taxes" shall exclude,
federal, state or local (i} franchise, capital stock or similar
taxes, if any, of Landlord, (ii) income, excess profits or other
taxes, if any, of Landlord, determined on the basis of or measured
by its net income, or (iii) any estate, inheritance, succession,
gift, capital levy or similar taxes unless the taxes referred to
in clauses (i) and (ii) above are in lieu of or a substitute for
any other tax or assessment upon or with respect to any of the
Leased Premises. which, if such other tax or assessment were in
effect at the commencement of the Term, would be payable by
Tenant. In the event that any assessment against any of the Leased
Premises may be paid in installments, Tenant shall have the option
to pay such assessment in installments; and in such event, Tenant
shall be liable only for those installments (and all resulting
interest thereon) that become due and payable prior to and in
respect of the Term hereof Tenant shall prepare and :file all tax
reports required by governmental authorities that relate to the
Taxes. Tenant shall deliver to Landlord, within thirty (30) days
of receipt of Landlord's request for the same, copies of all
settlements and notices pertaining to the Taxes which may be
issued by any governmental authority.
8 USE
(a) USE. Tenant may use and occupy the Leased Premises for
any lawful purpose. subject to the restrictions set forth in
Section 8(b); provided, however, that in no event shall the
Leased Premises be used as a bingo parlor, off-track betting
or other gambling or gaming establishment, an Environmentally
Hazardous Business or any pornographic use, including but not
limited to the sale or rental of sexually explicit materials.
"Environmentally
Hazardous Business" shall mean (i) on site dry cleaning
operations (exclusive of pickup and drop-off), (ii) gasoline
service stations, (iii) auto repair, lubrication and servicing
facilities, (iv) printing facilities using solvent-based inks or
(v) any other business utilizing above-ground or underground
storage tanks for purposes of storing gasoline, diesel fuel,
other petroleum products, solvents or other substances regulated
under Environmental Laws when stored in above-ground or
underground storage tanks. The prohibition against any
Environmentally Hazardous Business does not prohibit the use of
the Premises for automobile sales with ancillary facilities for
the repair, lubrication, inspection and servicing of automobiles,
or underground storage tank systems used for fueling automobiles,
provided such fuel is not offered for sale to the general public.
In the event Tenant desires to either maintain facilities for the
repair, lubrication, inspection and servicing of automobiles
after the discontinuance of automobile sales on the Premises as a
primary business or to operate a gasoline service station for the
sale of petroleum products to the general public, Tenant shall
provide Landlord with written notice requesting approval of such
intended use. If Landlord does not notify Tenant in writing that
Landlord gives its approval within thirty (30) days of receipt of
such notice, such use shall be deemed a prohibited use under this
Paragraph 8(a). If the Landlord sends notice within thirty (30)
days denying such use or fails to respond to Tenant's request
within such thirty (30) day period, then such denial or failure
to approve shall be a "Purchase Offer Event" and Tenant may
exercise its rights pursuant to Paragraph 8( d). In no event
shall the Leased Premises be used for any purpose that shall
violate any of the provisions of any recorded covenants,
restrictions or agreements applicable to the Leased Premises.
Tenant agrees that with respect to any such recorded covenants,
restrictions or agreements, Tenant shall observe, perform and
comply with and carry out the provisions thereof required therein
to be observed and performed by Landlord. If Tenant shall desire
to use the Leased Premises for any purpose prohibited or
restricted by this Section 8, Landlord's prior written consent
shall be required for such use, and Landlord may withhold such
consent in its sole and absolute discretion.
(b) RESTRICTIONS. Tenant shall not permit any unlawful
occupation, business or trade; to be conducted on any of the
Leased Premises and shall comply with all applicable Legal
Requirements and Insurance Requirements. Tenant shall not use,
occupy or permit any of the Leased Premises to be used or
occupied, nor do or permit anything to be done in or on any of
the Leased Premises, in a manner which would (i) violate any
certificate of occupancy or equivalent certificate affecting any
of the Leased Premises, (ii) make void or voidable any insurance
which Tenant is required hereunder to maintain then in force with
respect to any of the Leased Premises, (iii) affect in any manner
the ability of Tenant to obtain any insurance which Tenant is
required to furnish hereunder, (iv) cause any injury or damage to
any of the Improvements unless pursuant to alterations permitted
under Paragraph 11 hereof, (v) constitute a public or private
nuisance or waste, or (vi) increase the use, handling, storage,
transportation, generation, or disposal of Hazardous Materials on
the Leased Premises; provided, however, the prohibition in
Paragraph 8(b )(vi) does not limit the use of the Premises for
automobile sales with ancillary facilities for the repair,
lubrication, inspection and servicing of automobiles, or
underground storage tank systems used for fueling automobiles,
provided such fuel is not offered for sale to the general public.
(c) QUIET ENJOYMENT. Subject to all of the provisions of
this Lease, so long as no Event of Default exists hereunder,
Landlord covenants that neither it nor any party claiming
by, through or under it, shall do any act to disturb the
peaceful and quiet occupation and
enjoyment of the Leased Premises by Tenant. Landlord may enter
upon and examine any of the Leased Premises at reasonable times
after reasonable notice and during business hours and exercise
any rights and privileges granted to Landlord under the
provisions of this Lease.
(d) PURCHASE OFFER. In the event of a Purchase Offer Event,
Tenant may serve notice upon Landlord of its desire to
purchase the Property and terminate this Lease on the date
set forth in such notice (the "Purchase Date"). Tenant
shdall, as part of such notice, inform Landlord of its offer
to purchase the Leased Premises for its appraised value (the
"Purchase Price") (to be determined as set forth below) plus
all other amounts which may be due and owing to Landlord by
reason of any default by Tenant in complying with its
obligations under this Lease (the "Additions to Purchase
Price"). Landlord shall reject or accept Tenant's purchase
offer in writing within fifteen (15) days after receipt of
such purchase offer. In the event Landlord accepts such
purchase offer, Tenant and Landlord shall each select one
independent and licensed MAI certified appraiser (the
"Initial Appraisers") and the Initial Appraisers shall
together select a third independent and licensed MAI
certified appraiser to perform an appraisal of the Leased
Premises.
In the event Landlord accepts Tenant's purchase offer, title
shall close thirty (30) days after the Purchase Date (the
"Closing Date"), at such time and place as the parties hereto may
agree upon, this Lease shall continue through the Closing Date
(or, if applicable, the extended Closing Date hereinafter
described) and Tenant shall pay the Purchase Price and Additions
to Purchase Price by transferring immediately available federal
funds to such account or accounts and in such bank or banks as
Landlord shall designate, upon delivery of a special warranty
deed conveying the Leased Premises and all other required
documents. The special warranty deed shall convey a good and
clear record and marketable title, free from encumbrances other
than (i) Permitted Encumbrances, (ii) liens or encumbrances
created or suffered through or by Tenant failing to observe or
perform any of the terms, covenants or agreements herein provided
to be observed and performed by Tenant, (iii) any installments of
Taxes due and payable after the Closing Date, and (iv) this
Lease. Such deed shall contain an agreement by grantee to observe
and perform all of the covenants, conditions and restrictions
contained in any instruments of record which were assumed by
Landlord or deemed to have been assumed by Landlord on its
acquisition of title. The Purchase Price and Additions to
Purchase Price payable as hereinabove provided shall be charged
or credited, as the case may be, on the Closing Date, to reflect
adjustments of Basic Rent paid or payable to and including the
Closing Date, apportioned as of the Closing Date. The acceptance
of a deed by Tenant shall be deemed to be a full performance and
discharge of every agreement and obligation on the part of
Landlord to be performed pursuant to the provisions hereof.
Tenant shall pay all conveyance, transfer, sales and like taxes
required in connection with the purchase. If on the Closing Date,
there may be any liens or encumbrances which Landlord is
obligated to remove, Landlord shall use reasonable efforts to
remove the same, and the Closing Date shall be extended for a
reasonable period to permit Landlord to discharge such liens or
encumbrances. Landlord shall not be obligated to discharge any
such lien or encumbrance if Tenant's title insurance company
shall issue affirmative insurance to the effect that the same
shall not be collected from or enforced against the insured
premises. If there be any liens or encumbrances against the
Leased Premises which Landlord is obligated to remove (that is,
any adverse title matters other than those to which Landlord's
conveyance under special warranty deed may be subject as set
forth in subparagraphs (i) through (iv) above), upon request made
a reasonable time before the Closing
Date, Landlord shall provide at the Closing separate funds for
the foregoing, payable to the holder of such lien or encumbrances.
9. MAINTENANCE AND REPAIR
(a) MAINTENANCE. Tenant shall at all times, including
any Requisition period, put, keep and maintain the Leased
Premises, including, without limitation, the roof, landscaping,
walls (interior and exterior), footings, foundations, parking lot
improvements and structural and mechanical components of the
Leased Premises in good repair and appearance, and shall promptly
make all repairs and replacements (substantially equivalent in
quality and workmanship to the original work) of every kind and
nature, whether foreseen or unforeseen, which may be required to
be made upon or in connection with any of the Leased Premises in
order to keep and maintain the Leased Premises in as good repair
and appearance as they were as of the Commencement Date. Tenant
shall do or cause others to do all shoring of the Leased Premises
or of foundations and walls of the Improvements and every other
act necessary or appropriate for preservation and safety thereof,
by reason of or in connection with any excavation or other
building operation upon any of the Leased Premises, whether or
not Landlord shall, by reason of any Legal Requirements or
Insurance Requirements, be required to take such action or be
liable for failure to do so. Landlord shall not be required to
make any repair, whether foreseen or unforeseen, or to maintain
any of the Leased Premises in any way, and Tenant hereby
expressly waives the right to make repairs at the expense of the
Landlord, which right may otherwise be provided for in any law
now or hereafter in effect. Nothing in the preceding sentence
shall be deemed to preclude Tenant from being entitled to any
Proceeds or Awards for Restoration pursuant to the terms of this
Lease. Tenant shall, in all events, make all repairs for which it
is responsible hereunder promptly, and all repairs shall be in a
good, proper and workmanlike manner. If any such repair or
maintenance constitutes an "Alteration" as defined herein,
Paragraph 11 below shall govern Tenant's completion thereof with
respect to notices to and/or consents from Landlord and. the
requirement for supervision by an architect or engineer.
(b ) FAILURE TO MAINTAIN. If Tenant shall be in default
under any of the provisions of this Paragraph 9, Landlord
may, after thirty (30) days notice to Tenant and the failure
of Tenant to commence to cure during said period or to
diligently prosecute such cure to completion once begun. but
immediately upon notice in the event of an emergency (that
is, imminent danger of injury to persons or property), do
whatever is necessary to cure such default as may be
reasonable under the circumstances for the account of and at
the expense of Tenant. In the event of an emergency, before
Landlord may avail itself of its rights under this Paragraph
9(b), Landlord shall give prior notice to Tenant of the
situation (which notice may be given by phone or other
available communication and need not be in writing as
otherwise required by Section 21 below). All actual,
reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses,
including appellate fees and expenses) so incurred by
Landlord, together with interest thereon at the. Default
Rate from the date of payment or incurring the. expense,
shall constitute Additional Rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord on demand
Landlord and Tenant agree that, in the event of an
emergency, expenditures which might otherwise be
unreasonable (such as overtime) may nevertheless be
reasonable under the circumstances
(c) REPLACEMENTS. Tenant shall from time to time
replace with other new or refurbished equipment or parts any of
the mechanical systems or other equipment included in the
Improvements which shall have become worn out, obsolete or
unusable for the purpose for which it is intended, bee~ taken by
a Condemnation as provided in Paragraph 12, or been lost, stolen,
damaged or destroyed as provided in Paragraph 14. Tenant shall
repair at its sole cost and expense all damage to the Leased
Premises caused by the removal of equipment or any other personal
property of Tenant at any time, including upon expiration or
termination of the Lease.
10. LIENS Tenant shall not, directly or indirectly, create
or permit to be created or to remain, and shall promptly
discharge, any lien on any of the Leased Premises, on the Basic
Rent, Additional Rent or on any other sums payable by Tenant
under this Lease, other than the Mortgage (and any assignment of
leases, rents, profits or collateral in connection therewith),
the Permitted Encumbrances and any mortgage, lien, encumbrance or
other charge created by or resulting from any act or omission by
Landlord or those claiming by, through or under Landlord
11. ALTERATIONS.
(a) AS IS CONDITION. Tenant acknowledges that it or its
Affiliate owned and operated the Leased Premises immediately
prior to the Commencement Date. Accordingly, Tenant shall
accept possession of the Leased Premises in its ''as is"
condition as of the Commencement Date. Landlord makes no
warranty or representation, express or implied, with respect
to the Leased Premises, either as to its fitness for use,
its design or condition, or any particular use or purpose to
which the Leased Premises may be fit, or otherwise, or as to
quality of the material or workmanship therein, or the
existence of any defects, latent or patent, it being agreed
that all such risks are to be borne by Tenant. Landlord is
under no obligation to make any alterations, expansions,
additions, improvements, or betterments in or to the Leased
Premises.
(b) TENANT ALTERATIONS. Tenant shall not make or permit
anyone to make any Alterations in or to the Leased Premises
that would result after giving consideration to the
completed Alteration, in a material diminution in the value
of the Leased Premises without Landlord's prior written
consent which consent may be withheld in Landlord's sole and
absolute discretion. If the Alteration is structural in
nature, such Alteration shall not be made without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Landlord
agrees that Landlord's approval shall be (i) deemed
unreasonable unless such structural Alteration causes a
material diminution in the value of the Leased Premises or
impairs the structural integrity of the Improvements and
(ii) deemed granted in the event that Landlord does not
respond to Tenant's notice of such Alteration within ten
(10) business days. Tenant may make any other Alterations
without the prior written consent of Landlord provided such
Alterations comply with all of the provisions of the
following sentence. All Alterations shall be performed in a
good and workmanlike manner, and shall be expeditiously
completed in compliance with all Legal Requirements, (i) all
work done. in connection with any such Alterations shall
comply with all Insurance Requirements, (ii) Tenant shall
promptly pay all costs and expenses of any such Alterations,
and shall discharge all liens tiled against any of the
Leased Premises arising out of the work, and shall, upon
notice from Landlord, furnish to Landlord copies of such
evidence of payment of costs and expenses or of discharge or
waiver of liens as Landlord may reasonably request, (iii)
Tenant shall procure and pay for all permits and
licenses required in connection with any such Alterations, (iv)
all such Alterations shall be the property of Landlord and shall
be subject to this Lease, (v) any Alterations that are structural
in nature and the estimated cost of which in anyone instance
exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) shall be
made under the supervision of a licensed architect or engineer in
accordance with detailed plans and specifications which shall be
submitted to Landlord prior to the commencement of the Alterations
and (vi) any Alterations which are not structural in nature and
the estimated cost of which in anyone instance exceeds Five
Hundred Thousand Dollars ($500,000.00) shall be made under the
supervision of a licensed architect or engineer in accordance with
detailed plans and specifications which shall be given to Landlord
within a reasonable time after completion.
(c) REMOVAL OF ALTERATIONS. All Alterations to the Leased
Premises made by Tenant during the Term shall be the property
of Landlord and shall remain upon and be surrendered with the
Leased Premises as a part thereof at the expiration or
earlier termination of the Term; provided, however, that if
there exists no Event of Default under this Lease, then
Tenant shall have the right to remove, prior to the
expiration or earlier termination of the Term, any
Alterations consisting of movable furniture, furnishings and
equipment installed in the Leased Premises, solely at the
expense of Tenant.
12. CONDEMNATION.
(a) CONDEMNATION PROCEEDINGS. In the event either party
obtains knowledge of the institution of any proceeding for
Condemnation, such party shall immediately notify the other
of such proceeding. Tenant shall have the right to
participate, at its own expense, in such proceedings and to
negotiate on behalf of itself and Landlord in such
proceedings; provided, however, Tenant shall not enter into
any binding agreement or settlement without the prior consent
of Landlord. Landlord agrees to cooperate with Tenant and to
execute such documentation as may be reasonably necessary to
allow Tenant to participate in such Condemnation proceedings.
Landlord shall have the right to participate in such
proceedings at its own expense. Subject to the provisions of
this Paragraph 12 and Paragraph 15 hereof, Tenant hereby
irrevocably assigns to Landlord any Award or payment in
respect of any Condemnation of Landlord's interest in the
Leased Premises, except that nothing in this Lease shall be
deemed to require (i) the assignment to Landlord of any Award
or payment on account of Tenant's leasehold interest
hereunder, Tenant's Trade Fixtures or other tangible personal
property, moving expenses and similar claims, if available,
to the extent Tenant shall have a right to make a separate
claim therefor against the condemnor or (ii) any act or
circumstance that impairs Tenant's right to any such Award or
payment.
(b) TENANT TERMINATION. If (i) the entire Leased Premises or
(ii) at least ten percent (10%) of that portion of the Land
which has been paved for parking or on which the Improvements
have been constructed, the loss of which even after
Restoration would, in Tenant's reasonable business judgment,
be substantially and materially adverse to the business
operations of Tenant, shall be subject of a Taking by a duly
constituted authority or agency having jurisdiction, then
Tenant shall, not later than sixty (60) days after a Taking
has occurred, serve notice upon Landlord ("Tenant's
Termination Notice") of its intention to tern1inate this
Lease on any Basic Rent Payment Date specified in such
notice, which date (the "Termination Date") shall be no
sooner than the first Basic Rent Payment Date occurring at
least thirty (30) days after the
date of Tenant's Termination Notice. Any land which cannot be used
for the same purpose after a Taking as before a Taking (for
example, land that must be converted to green space or used as
setback area) shall be included within Land "lost" for purposes of
this Section 12.
(c) TRUSTEE. In the event of any taking of part of the
Leased Premises which does not result in a termination of
this Lease by Tenant pursuant to Paragraph 12(b) hereof, the
Award resulting from such Taking shall be paid to a Trustee,
which shall be a federally insured bank or other financial
institution, selected by Landlord and Tenant (the "Trustee")
pursuant to the requirements of Paragraph 15 and, promptly
after such Taking, Tenant shall commence and diligently
continue to perform the Restoration.
Upon the payment to Trustee of the Award of a Taking which
falls within the provisions of this subparagraph ( c ), the
Trustee shall, to the extent received, make that portion of
the Award equal to the cost of Restoration (the "Restoration
Award") available to Tenant for performance of the
Restoration, in accordance with the provisions of Paragraph
15, and the balance remaining (the "net surplus award") shall
be the property of Landlord. In the event of a loss of at
least ten percent (10%) of that portion of the Land which has
been paved for parking or on which the Improvements have been
constructed, following the making of the Award for such
Taking and on completion of the Restoration by Tenant as
herein provided, the monthly installment of Basic Rent for
each month during the remaining Term hereof, commencing with
the Basic Rent payment for the month after the month in which
such Restoration is completed, shall be reduced by an amount
such that the ratio of (a) the amount of the reduction to (b)
the then current Basic Rent equals the ratio of (x) the
amount of the Award paid to Landlord to (y) the pre-taking
fair market value of the Leased .Premises (which in no event
shall be less than the original purchase price paid by
Landlord for the Leased Premises). In the event of a Taking
of less than ten percent (10%) of that portion of the Land
which has been paved for parking or on which the Improvements
have been constructed, this Lease shall remain in full force
and effect and there shall be no reduction in the amount of
Basic Rent, Additional Rent or other payments due hereunder.
In the event of a Requisition of all or any portion of the
Leased Premises, Landlord shall apply the Award received from
such Requisition, to the extent available, to the
installments of Basic Rent, Additional Rent or other sums
payable by Tenant hereunder due during such Requisition and
Tenant shall pay the balance, if any, remaining thereafter.
Upon the expiration of the Term, any portion of such Award
that shall not previously have been credited to Tenant on
account of the Basic Rent and Additional Rent shall be
retained by Landlord.
13 INSURANCE.
(a) TYPES OF COVERAGE. Tenant shall maintain at its sole
cost and expense the following insurance on the Leased
Premises:
(i) Insurance against loss or damage to the
Improvements under a "Special Form" Policy, in accordance with the
requirements of Exhibit "D" attached hereto.
(ii) Garage liability insurance including contractual
liability or commercial genera1liabilityinsurance
(collectively, "CGL"}against claims for bodily injury,
death or property damage occurring on, in or about any of the
Leased Premises, which insurance shall be written on a so-called
"occurrence basis," and shall provide minimum protection with a
combined single limit in an amount not less than Five Million
Dollars ($5,000,000.00) (or in such. increased limits as are
required from time to time to reflect declines from the
Commencement Date in the purchasing power of the dollar as
Landlord may reasonably determine ).
(iii) Worker's compensation insurance covering all persons
employed by Tenant on the Leased Premises in connection with
any work done on or about any of the Leased Premises.
(iv) Such builder's risk coverage as may be
applicable under the Insurance Requirements.
(b) SELF-INSURANCE. Notwithstanding the foregoing,
during such time as no Event of Default is outstanding hereunder,
and the Tangible Net Worth of Tenant is not less than Two Hundred
Million Dollars ($200,000,000.00), Tenant may self-insure (either
by use of deductibles or self-insured retention) the coverage
referred to in Paragraph 13(a), provided that the self-insurance
program of this subparagraph (b) does not violate any Legal
Requirements applicable to the Leased Premises or Tenant.
(c) COMPANY REQUIREMENTS. The insurance required by
Paragraph 13(a) shall be written by companies having an AM. Best
rating of at least A-/VIII during such time as Tenant is not
entitled to self-insure in accordance with the provisions of
Paragraph 13(b). All companies providing insurance required by
Paragraph 13(a) shall be authorized to do an insurance business in
the State unless otherwise agreed to by Landlord and Lender. The
insurance policies shall be for a term of not less than one year,
and shall (except for worker's compensation insurance) name
Landlord (in its individual capacity, and as trustee under the
Trust Agreement {as hereinafter defined), Tenant and any Lender as
additional insured parties or loss payees, as applicable, as their
respective interests may appear. If said insurance or any part
hereof shall expire, be withdrawn, become void by breach of any
condition thereof by Tenant or otherwise become void Tenant shall
immediately obtain new or additional insurance reasonably
satisfactory to Landlord and Lender.
(d) REQUIRED CLAUSES. Each Property Insurance policy
shall, to the extent applicable, contain standard non-contributory
mortgagee clauses in favor of any Lender and shall also provide
that any loss otherwise payable thereunder shall be payable
notwithstanding (i) any act or omission of Landlord or Tenant
which might, absent such provision, result in a forfeiture of all
or a part of such insurance payment (ii) the occupation or use of
any of the Leased Premises for purposes more hazardous than
permitted by the provisions of such policy, (iii) any foreclosure
or other action or proceeding taken by any Lender pursuant to any
provision of the Mortgage upon the happening of an event of
default therein, or (iv) any change in title or ownership of any
of the Leased Premises.
(e) PREMIUMS AND RENEWAL. Tenant shall pay as they
become due all premiums for the insurance required by this
Paragraph 13, shall renew or replace each policy and shall
deliver to Landlord and Lender, a certificate or other evidence
(reasonably satisfactory to
Lender and Landlord) of the existing policy and the such renewal
or replacement policy simultaneously with such renewal or
replacement. In the event of Tenant's failure to comply with any
of the foregoing requirements of this Paragraph 13, Landlord
shall be entitled to procure such insurance. Any sums expended
by Landlord in procuring such insurance shall be Additional Rent
and shall be repaid by Tenant, together with interest thereon at
the Default Rate from the time of payment by Landlord until
fully paid by Tenant, immediately upon written demand therefor
by Landlord.
(f) BLANKET COVERAGE. Anything in this Paragraph 13 to
the contrary notwithstanding, any insurance which Tenant is
required to obtain pursuant to Paragraph 13(a) may be carried
under a "blanket" policy or policies covering other properties
or liabilities of Tenant, provided that such "blanket" policy or
policies otherwise comply with the provisions of this Paragraph
13.
14 DAMAGE DESTRUCTION.
(a) PAYMENT OF PROCEEDS. In the event of any casualty"
loss exceeding Two Hundred Thousand Dollars ($200,000.00) during
the Term hereof, Tenant shall give Landlord immediate notice
thereof. Tenant shall adjust, collect and compromise any and all
such claims, with the prior written consent of Landlord not to
be unreasonably withheld or delayed, and Landlord shall have the
right to join with Tenant therein at Landlord's expense. If the
estimated cost of any Restoration shall be Five Hundred Thousand
Dollars ($500,000.00) or less, all Proceeds recovered under any
insurance required under Paragraph 13(a) as a result of such
casualty shall be payable to Tenant, provided that Tenant at
such time shall have a Tangible Net Worth of not less than Two
Hundred Million Dollars ($200,000,000.00). In all other events,
all Proceeds recovered under the insurance required under
Paragraph 13(a), if any, as a result of a casualty shall be paid
to the Trustee. If the Leased Premises shall be covered by a
Mortgage, Lender, if it so desires, shall be the Trustee. Each
insurer is hereby authorized and directed to make payment under
said policies directly to such Trustee instead of to Landlord
and Tenant jointly; and Tenant hereby appoints such Trustee as
Tenant's attorney-in-fact to endorse any draft thereof for the
purposes set forth in this Lease after approval by Tenant of
such Trustee, if Trustee is other than Lender, such approval not
to be unreasonably withheld or delayed.
{b) RESTORATION BY TENANT. Except as set forth in
Section 14(c), in the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or
any part thereof, the Term shall nevertheless continue and there
shall be no abatement or reduction of Basic Rent, Additional
Rent or any other sums payable by Tenant hereunder. Except as
otherwise provided in Paragraph 14(a) hereof, any Proceeds of
such insurance payments shall be retained by the Trustee and,
promptly after such casualty, Tenant shall commence and
diligently continue to perform the Restoration to the Leased
Premises. Upon payment to the Trustee of such Proceeds, if any,
the Trustee shall make the Proceeds available to Tenant for use
in performing the Restoration in accordance with the provisions
of Paragraph 15. Tenant shall, whether or not the Proceeds are
sufficient for the purpose or whether or not Tenant is self-
insuring, promptly commence and complete the Restoration in
accordance with all Insurance Requirements and Legal
Requirements and the provisions of this Lease (including
Tenant's making any desired Alterations allowed hereunder) and
the Proceeds, if any,
of such casualty loss shall thereupon be payable to Tenant,
subject to the provisions of Paragraph 15 hereof.
Notwithstanding the foregoing, in the event that any damage
or destruction shall occur at. such time as Tenant is self-
insuring, and so long as Tenant has a Tangible Net Worth of not
less than Two Hundred Million Dollars ($200,000,000.00), Tenant
shall proceed with Restoration as provided herein and shall not
be required to pay to the Trustee the amount of the proceeds that
would have been payable had such self-insurance program not been
in effect. Funds so used by Tenant to restore the Leased Premises
shall not be included in the definition of "Proceeds" or in the
"Restoration Funds".
(c) MAJOR CASUALTY. In the event of any major casualty
loss to the Leased Premises during the last three (3) years of
the then current Lease Term, Tenant shall have the option to
terminate this Lease upon written notice to Landlord not less
than thirty (30) days after the date of such casualty loss. For
purposes of this section the term "major casualty loss" shall
mean any casualty loss, the repair of which would cost at least
twenty-five percent (25%) of the before casualty value of the
Leased Premises. In such event, all Proceeds sha1l be payable to
Landlord and Tenant shall pay to Landlord the amount of any
deductibles and, in the event Tenant is self-insuring, Tenant
shall pay to Landlord an amount equal to the amount of insurance
proceeds that would have been payable had such self-insurance
program not been in effect.
15. RESTORATION. Any Award or Proceeds (the aggregate of
which and any interest earned thereon being herein defined as the
"Restoration Fund") paid to the Trustee shall be disbursed by the
Trustee in accordance with the following conditions:
(a) At the time of any disbursement no Event of Default
shall exist and no mechanics' or materialmen's liens shall
have been :filed against the Leased Premises and remain
undischarged and bonded.
(b) If the cost of Restoration exceeds Five Hundred
Thousand Dollars ($500,000.00), prior to commencement of the
Restoration, Tenant shall provide the contracts, plans and
specification for the Restoration to Landlord.
(c) Each request for disbursement from the Restoration
Fund shall be accompanied by a certificate of Tenant, signed by
the President, Treasurer or any Vice President of Tenant,
describing the completed Restoration work for which payment is
requested, stating the cost incurred in connection therewith and
stating that Tenant has not previously received payment for such
work. The certificate to be delivered by Tenant upon completion
of the Restoration work shall, in addition, state that the
Restoration work has been completed and complies with the
applicable requirements of this Lease and all Legal Requirements
and Insurance Requirements.
(d) Disbursements from the Restoration Fund shall be
made from time to time in an amount not exceeding the cost of the
Restoration work completed since the last disbursement upon
receipt of (1) satisfactory evidence, including architects'
certificates, of the stage of completion, of the estimated cost
of completion and of performance of the Restoration work to date
in a good and workmanlike manner in accordance with the
contracts, plans and
specifications approved by Landlord, (2) waivers of the general
contractor's lien, (3) a satisfactory bring down of title
insurance, and (4) other evidence of cost and payment so that
Landlord can verify that the amounts disbursed from time to time
are represented by the Restoration work that is completed in
place and free and clear of mechanics' lien enforcement actions.
(e) The Trustee may retain ten percent (10%) from each
disbursement of the Restoration Fund until the Restoration
is fully completed and the Leased Premises are available for
their intended use, in the reasonable judgement of the
Lender, including the issuance of any necessary certificate
of occupancy.
(f) The Restoration Fund shall be kept in a separate
interest-bearing account federally insured to the extent
applicable by the Trustee or by Lender. .
In the event of a casualty, prior to commencement of Restoration
and at any time during Restoration, if the estimated cost of
Restoration, as reasonably determined by Landlord and Tenant,
exceeds the amount of the Restoration Fund, the amount of such
excess shall be (i) paid by Tenant to the Trustee to be added to
the Restoration Fund prior to any further disbursement from such
Restoration Fund, (ii) funded at Tenant's own expense until the
remaining Restoration Fund is sufficient for the completion of
the Restoration, or (iii) in the event Tenant is self- insuring,
paid by Tenant. In the event of a Taking, prior to commencement
of Restoration and at any time during Restoration, if the
estimated cost of Restoration, as reasonably determined by
Tenant, exceeds the amount of the Restoration Fund, Tenant may
terminate the Lease upon notice to Landlord; provided, however,
Landlord shall have the option to pay the amount of such excess
and continue the Term of the Lease. Except for the payment to
Landlord of the net surplus award referred to in Paragraph 12(c),
any sum in the Restoration, Fund which remains in the Restoration
Fund upon the completion of Restoration shall be paid to Tenant.
For purposes of determining the source of funds with respect. to
the disposition of funds remaining after the completion of
Restoration, the Proceeds of the Restoration Fund shall be deemed
to be disbursed prior to any amount added by Tenant to the
Restoration Fund.
16. SUBORDINATION TO FINANCING.
(a) .SUBORDINATION OF LEASE. Subject to the following
provisions of this Paragraph 16(a), Tenant agrees that this Lease
shall be subject and subordinate to the lien of any Mortgage, and
Tenant agrees, upon demand by Landlord or its Lender, without
cost, to execute instruments as may be required to further
effectuate or confirm such subordination, including, but not
limited to a Subordination, Non-Disturbance and Attornment
Agreement in the form attached as Exhibit "E" hereto. So long as
no Event of Default shall be outstanding, Tenant's tenancy
hereunder shall not be disturbed nor shall this Lease be affected
by any default under such Mortgage, and in the event of a
foreclosure or other enforcement of any such Mortgage, or sale in
lieu thereof, the purchaser at such foreclosure sale shall be
bound to Tenant for the Term of this Lease and any extensions
thereof, the rights of Tenant hereunder shall expressly survive,
and this Lease shall in all respects continue in full force and
effect so long as no Event of Default by Tenant has occurred and
is continuing, provided, however, that any such transferee shall
not be (i) bound by any payment of Basic Rent or Additional Rent
made more than one (1) month in advance, except prepayments in
the nature of security for the performance by Tenant of its
obligations under this Lease, but only to the extent such
prepayments have been delivered to such transferee, (ii) bound by
any amendment of this Lease made without the written consent of the
holder of each Mortgage existing as of the date of such amendment,
(iii) liable for damages for any breach, act or omission of any
prior landlord, (iv) liable for any default by prior landlord under
the Lease, or (v) subject to any offsets or defenses which Tenant
might have against any prior landlord; provided, however, that
after succeeding to Landlord's interest under this Lease, such
transferee shall agree to perform in accordance with the terms of
this Lease all obligations of Landlord arising after the date of
transfer. So long as no Event of Default by Tenant has occurred and
is continuing, Tenant shall not be named as a party defendant in
any such foreclosure suit, except as may be required by law. Any
Mortgage to which this Lease is now or hereafter subordinate shall
provide, in effect, that during the time this Lease is in force
(and provided that Tenant is not in default hereunder beyond
applicable periods of notice and cure or, if Tenant is in such
default, Landlord is not exercising its remedies hereunder), all
Proceeds and Awards shall be permitted to be used for Restoration
in accordance with the provisions of this Lease.
(b) SUBORDINATION OF MORTGAGE. Notwithstanding the
provisions of Paragraph 16(a) above, the holder of any Mortgage to
which this Lease is subject and subordinate, as provided in said
Paragraph 16(a) shall have the right, at its sole option, at any
time, to subordinate and subject such Mortgage, in whole or in
part, to this Lease by recording a unilateral declaration to such
effect.
(c) ATTORNMENT. At any time prior to the expiration of
the Term, Tenant agrees, at the election and upon demand of any
owner of the Leased Premises, or of any Lender who has granted
nondisturbance to Tenant pursuant to Paragraph 16(a) above, to
attorn, from time to time, to any such owner or Lender, upon the
then executory terms and conditions of this Lease, for the
remainder of the Term originally demised in this Lease and for any
renewal term hereunder, provided that such owner or Lender shall
then be entitled to possession of the Leased Premises subject to
the provisions of this Lease. The provisions of this subdivision
(c) shall inure to the benefit of any such owner or Lender, shall
apply notwithstanding that, as a matter of law, this Lease may
terminate upon the foreclosure of the Mortgage, shall be self-
operative upon any such demand, and no further instrument shall be
required to give effect to said provisions.
17. ASSIGNMENT SUBLEASING
(a) ASSIGNMENT SUBLETTING Tenant shall have the right to
assign (but not to mortgage or otherwise encumber) its interest in
this Lease and sublet the Leased Premises or any part thereof,
without obtaining the prior written consent of Landlord (but
subject to the notice provisions of subsection (b) below), provided
that Tenant remains fully liable under the terms and conditions of
this Lease. Tenant shall not mortgage or encumber its interest
under this Lease without the prior written consent of Landlord and
Lender, which consent shall not be unreasonably withheld,
conditioned or delayed, subject to their then-current underwriting
criteria for similar properties and transactions. Tenant shall
deliver to Landlord a fully-executed duplicate original of any such
assignment, sublease, encumbrance or other transfer within ten (10)
days after Tenant's execution thereof Any attempted assignment,
transfer or other encumbrance of this Lease or an or any of
Tenant's rights hereunder or interest herein not in accordance with
this Paragraph 17 shall be void and of no force or effect
Landlord's collection
or acceptance of Basic Rent or Additional Rent from any assignee
shall not be construed either as waiving or releasing Tenant from
any of its liabilities or obligations under this Lease as a
principal and not as a guarantor or surety. As security for this
Lease, Tenant hereby assigns to Landlord the rent due from any
sublessee of Tenant. For any period during which there exists an
Event of Default hereunder, Tenant hereby authorizes each such
sublessee to pay said rent directly to Landlord as Basic Rent or
Additional Rent hereunder upon receipt of notice from Landlord
specifying same.
(b) NOTICE TO LANDLORD. If at any time during the Term
hereof Tenant desires to assign, sublet or mortgage all or part of
this Lease or the Leased Premises, Tenant shall give notice to
Landlord in writing containing: the identity of the proposed
assignee or other Party and a description of its business
experience and financial condition; the terms of the proposed
assignment, sublease, mortgage or other transaction; the
commencement date of the proposed assignment, sublease or other
transaction; and those portions of the Leased Premises proposed to
be assigned, sublet or otherwise encumbered. Anything herein to the
contrary notwithstanding, if a proposed assignee, sublessee, or a
leasehold mortgagee shall be an entity or person with whom Landlord
cannot legally do business pursuant to the USA Patriot Act, P.L.
107-56, Landlord shall so notify Tenant in writing, and Tenant
shall not enter into the proposed transaction with such entity or
person.
(c) RESTRICTIONS AND OBLIGATIONS EXTEND TO TRANSFEREES.
All restrictions and obligations imposed pursuant to this Lease on
Tenant shall be deemed to extend to any subtenant, assignee,
licensee, concessionaire pr other occupant or transferee, and
Tenant shall cause such person or entity to comply with such
restrictions and obligations. Any assignee shall be deemed to have
assumed the obligations hereof as if such assignee had originally
executed this Lease and at Landlord's request shall execute
promptly a document confirming such assumption. Each sublease is
subject to the condition that if the Term hereof is terminated or
Landlord succeeds to. Tenant's interest in the Leased Premises by
voluntary surrender or otherwise, at Landlord's option, the
sublease shall not terminate as a matter of law and the subtenant
shall be bound to Landlord for the balance of the term of such
sublease and shall attorn to and recognize Landlord as its landlord
under the then executory terms of such sublease.
(d) DEVELOPMENT SPACE. Landlord recognizes that there may
currently be constructed or Tenant may intend to construct new or
redevelop existing leasable space (improved or unimproved) (the
"Development Space") at the Leased Premises, which Development
Space is or shall be either one or more separate parcels or
buildings or buildings connected to the other Improvements but
separated therefrom by a demising wall, for the specific purpose of
generating sublease income to the Tenant. Any such Development
Space shall be constructed at Tenant's sole cost and expense, and
such construction shall be deemed an Alteration under 'this Lease
and shall be performed in accordance with the terms of this Lease,
however, Landlord agrees that Paragraph ll(b)(v) shall not apply to
the construction of the Development Space. Landlord agrees for
itself, its successors and assigns, promptly upon Tenant's request,
to enter into a nondisturbance and attornment agreement with any
Qualified Subtenant, as defined below~ of the Development Space
upon the terms described below, pursuant to which Landlord shall
agree, for so long as such Qualified Subtenant is not in default
under its Qualified Sublease, as defined below, that the Qualified
Sublease shall not be terminated as a result of any termination of
this Lease and such Qualified Subtenant's use and
occupancy of the premises demised pursuant to the Qualified
Sublease shall not be disturbed by Landlord, and pursuant to
which such Qualified Subtenant shall agree to attorn to Landlord
or its successor a$ landlord under the Qualified Sublease upon
any termination of this Lease. Said agreement shall further
provide that nothing therein contained shall impose any
obligation on the Landlord, the then owner or the Lender to (a)
return or apply any security deposited under such sublease,
unless such security shall be transferred and turned over to the
Landlord, such then owner or Lender or its Successors, (b)
expend any sums to make any installations or alterations
provided to be made by the landlord under said sublease or
reimburse the Tenant under said sublease for any installations
or alterations made by it, (c) be liable for any act or omission
of any prior landlord except that the foregoing shall not
prevent any subtenant's exercising any right of termination as
the result of any continuing default of the prior landlord
relating to its repair, maintenance or service obligations under
the Qualified Sublease, (d) be subject to any offsets or defense
which such subtenant might have against any prior landlord, (e)
be bound by any rent or additional rent which such subtenant
might have paid for more than the current rent (which shall not
be paid more than one month in advance) to any prior landlord,
or (f) be bound by any amendment or modification of the sublease
made without the prior written consent of Landlord, the terms of
which amendment or modification if included in the original
sublease would have prevented such sublease from meeting the
criteria for a Qualified Sublease. Any Subtenant under a
Qualified Sublease, as defined below, is a "Qualified
Subtenant.".
(e) DEFINITIONS, For purposes of paragraph 17 below,
the following definitions shall apply:
(i) The sublease for which Tenant requests
nondisturbance as a Qualifying Sublease shall be the "Subject
Sublease;"
(ii) The proposed effective date of the
Subject Sublease shall be the "Start Date;"
(iii) Subleases previously qualified hereunder as
"Qualifying Subleases" shall be "Existing Qualifying
Subleases;"
(iv) Of all Existing Qualifying Subleases and the
Subject Sublease, the sublease with the longest term
(including any renewal terms) shall be the "Benchmark
Sublease;"
(v) The last day of the term of the Benchmark
Sublease shall be the "End Date"
(vi) The portion of the Leased Premises not subject to any
Existing Qualifying Sublease or proposed to be subject to
the Subject Sublease shall be the "Prime Portion;"
(vii) Each portion of the Leased Premises subject to
any Existing Qualifying Sublease (or proposed to be subject
to the Subject Sublease) other than the Benchmark Lease
shall be a "Secondary Portion;"
(viii) The Existing Qualifying Sublease burdening any
Secondary Portion shall be the "Related Sublease" with
respect to such Secondary Portion (and the Subject
Sublease shall be the "Related Sublease" with respect to the
Secondary Portion proposed to be burdened thereby)
(ix) The "Present Value of a stream of rental income shal1
be the value of such stream of income discounted for the value
of money discounted at the Discount Rate; and
(x) The "Rental Value" of any Secondary Portion or the Prime
Portion shall be the Present Value of the fair market rental
value for the period of time at issue, as established by the
written report of a qualified commercial real estate appraiser
having at least ten years experience in the Lithia Springs,
Georgia real estate market, employing consistent methodology,
delivered to Landlord by Tenant at the time Tenant requests
nondisturbance from Landlord hereunder.
(f) OUALIFIED SUBLEASE With respect to any Development
Space, "Qualified Sublease" shall be any sublease of the Development
Space, or any portion thereof,
(i) that requires the tenant thereunder to pay basic rent
that does not decrease over time (including any possible
decrease based upon an "escalator" of other adjustment
mechanism),
(ii) the term of which (including any renewal periods)
does not extend beyond the last day of the last r enewal term
which becomes effective hereunder,
(iii) under which the tenant has not paid or is not
required to pay any one-time rental payment or other "up-front"
payment the effect of which is to front-end load the lease
payments,
(iv) the Present Value of the net rent payable
under which, when. added to:
(A) the Present Value of the net rent(s)
payable (commencing on Start Date) under each Existing Qualifying;
Sublease,
(B) the Rental Value of the Prime Portion
calculated for the period beginning with the Start Date and ending
with the End Date, and
(C) the aggregate Rental Value(s) of the
Secondary Portions, each calculated for the period beginning with
the expiration of its Related Sublease and ending with the End Date
is at least equal to the Present Value of the rental rate payable
hereunder for the period com1nencing on the Start Date and ending on
the End Date, as if the rental rate hereunder continued through the
End Date, if such is not the case, and
(v) exculpates the Landlord, its successor and assigns
(including any mortgagee of Landlord or purchaser at sale
pursuant to foreclosure under any mortgage granted by Landlord
from all personal liability whatsoever under the Qualified
Sublease regardless of
whether Landlord or such successor or assign becomes the landlord
under the Qualified Sublease, and
(vi) requires such Qualified Subtenant to maintain the
nonstructural components of the premises demised thereunder
in accordance with the maintenance standards set forth in
this Lease.
(vii) Upon the occurrence of an Event of Default under this
Lease, Landlord shall have the right to collect and enjoy all
rents and other sums of money payable under any sublease of
any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord,
which assignment may be exercised upon and after (but not
before) the occurrence of an Event of Default and any notice
and opportunity to cure set forth herein. .
18. PERMITTED CONTESTS. Notwithstanding any provision of
this Lease to the contrary, Tenant shall not be required to (i)
pay any Tax, (ii) comply with any Legal Requirement, or (iii)
discharge or remove any lien on the Leased Premises,-so long as
Tenant shall contest, in good faith and at its expense, the
existence, the amount or the validity thereof, the amount of the
damages caused thereby, or the extent of its or Landlord's
liability therefor, by appropriate proceedings which shall operate
during the pendency thereof to prevent (v) the collection of, or
other realization upon, the Tax or lien so contested, (w) the
sale, forfeiture or loss of any of the Leased Premises, any Basic
Rent or any Additional Rent to satisfy the same or to pay any
damages caused by the violation of the same, (x) any interference
with the use or occupancy of any of the Leased Premises, (y) any
interference with the payment of any Basic Rent or any Additional
Rent, and (z) the cancellation of any Property Insurance or other
insurance policy. Landlord hereby appoints Tenant as its attorney-
in-fact for the purpose of such contests and agrees to cooperate
with Tenant and sign any documents reasonably required to assist
Tenant with such contests. In no event shall Tenant pursue any
contest with respect to any Tax, Legal Requirement, or lien
referred to above in such manner that exposes Landlord to any
criminal or material civil liability, penalty or sanction for
which Tenant has not made provisions reasonably acceptable to
Landlord and Lender Tenant shall be deemed to have made provisions
reasonably acceptable to Landlord if Tenant shall have provided
Landlord as security for such contest, an amount of cash or bond
equal to-12S% of the amount being contested, or other security
satisfactory in the reasonable opinion of Landlord, in assuring
the payment, compliance, discharge, removal or other action
including all costs, attorneys' fees, interest and penalties, in
the event that the contest is unsuccessful. No such security shall
be required if the amount involved in the contest shall not exceed
one tenth (1/10th) of one percent (1% ) of the Tangible Net Worth
of Tenant, as determined by its most recent publicly filed
financial statements (10Q and 10K). While any such proceedings are
pending and the required security is held by Landlord, Landlord
shall not have the right to pay, remove or cause to be discharged
the Tax, Legal Requirement or lien thereby being contested unless
Landlord reasonably believes that any one or more of the
conditions in subdivisions (v) through (z) of this paragraph shall
not be prevented during the pendency of the contest. Tenant
further agrees that each such contest shall be promptly and
diligently prosecuted to a final conclusion; except that Tenant
shall, so long as all of the conditions of the first sentence of
this Paragraph 18 are at all times complied with, have the right
to attempt to settle or compromise such contest through
negotiations and, in any event, a1iyand all such contests shall be
prosecuted to a final conclusion prior to the end of the Term
hereof Tenant shall pay any and all judgments, decrees and costs
(including costs incurred by Landlord).(including all attorneys'
fees and expenses, including appellate fees and expenses) in
connection with any such contest and shall, promptly after the final
determination of such contest, 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 together with all
penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of which
shall be ordered or decreed as a result thereof
19. DEFAULT. The occurrence of anyone or more of the following
events shall constitute an Event of Default under this Lease:
(a) Tenant's failure to make when due any payment of Basic
Rent, Additional Rent or other sum; provided, however, no
Event, of Default shall be deemed to have occurred unless such
failure continues for a period of five (5) business days after
written notice thereof from Landlord.
(b) Tenant's failure to duly perform and observe, or
Tenant's Violation or breach of, any other provision hereof if such
failure shall continue for a period of thirty (30) days after notice
thereof is given by Landlord or Lender or if such failure cannot be
cured within such period of thirty (30) days, such period shall be
extended for such longer time as is reasonably necessary provided
that Tenant has commenced to cure such default within said period of
thirty (30) days and is actively, diligently and in good faith
proceeding with continuity to remedy such failure; but in no event
shall such cure period be longer than sixty (60) days, as may be
extended by one (1) day for each day an event of force majeure
exists; provided, however, that such cure period shall not prevent
Landlord's availing itself of its rights to enter onto the Leased
Premises and remedy any such failure (at Tenant's expense) if, in
Landlord's sole reasonable discretion, such failure raises a
life/safety issue with respect to the Leased Premises or its
occupants or visitors, including but not limited to, a threat of
personal injury or continuing physical injury to the Leased Premises
or an emergency situation where a release, discharge, spill or leak
of Hazardous Materials in violation of Paragraph 26 or a Violation
of applicable Environmental Requirements constitutes more than a
deminimus threat to human health, safety or the environment or is
reasonably anticipated to materially adversely affect the value of
the Leased Premises.
(c) Tenant shall (i) voluntarily adjudicated a banlm1ptcy or
insolvent, or (ii) consent to the appointment of a receiver or
trustee for itself or for any of the Leased Premises, {iii)
file a petition seeking relief under the bankruptcy or other
similar laws of the United States, any state or any
jurisdiction, or (iv) make a general assignment for the benefit
of creditors.
(d) A court shall enter an order, judgment or decree appointing
a receiver or trustee for Tenant, or for any of the Leased
Premises or approving a petition .filed against Tenant, which
seeks relief under the bankruptcy or other similar laws of the
United States, any state or any jurisdiction, and such order,
judgment or decree shall remain in force, undischarged or
unstayed, sixty (60) days after it is entered
(e) Tenant shall in any insolvency proceedings be liquidated
or dissolved or shall begin proceedings towards its liquidation
or dissolution.
(f) The estate or interest of tenant in any of the Leased
Premises shall be levied upon or attached in any proceeding and such
estate of interest is able to be sold, or transferred or such
process shall not be vacated r discharged within sixty (60) days
after such levy or attachment.
(g) Any subletting, assignment transfer, mortgage or other
encumbrance of the Leased Premises or this Lease not permitted
by Paragraph 17.
{h) A final, non-appealable judgment for the payment of money
in excess of One Million Dollars ($1,000,000.00) riot fully
covered by insurance is rendered against Tenant or any
Affiliate conducting business at or from the leased premises,
and the same has not been discharged vacated, bonded, appealed
or stayed within thirty (30) days after rendering of the same
or prior to levy and execution, whichever is earlier.
(i) Any failure to maintain the insurance required pursuant
to Paragraph 13 above, which failure continues for three (3)
business days after Landlord gives written notice thereof to
Tenant.
(j) Tenant's failure to maintain the Leased Premises as
required herein as a result of Tenant's abandonment of the Leased
Premises.
20. LANDLORD'S REMEDIES. After the occurrence of an Event of
Default by Tenant, Landlord shall have the right to exercise
the following remedies:
(a) Landlord may, at its option, continue this Lease in full
force and effect, without terminating Tenant's right to
possession of the Leased Premises, in which event Landlord
shall have the right to collect Basic Rent and all other
Additional Rent and charges when due. In the alternative,
Landlord shall have the right to peaceably re-enter the Leased
Premises without such re-entry being deemed a termination of
the Lease or an acceptance by Landlord of a surrender thereof.
Landlord shall also have the right, at its option, from time to
time, without terminating this Lease, to relet the leased
Premises, or any part thereof, with or without legal process,
as the agent, and for the account, of Tenant upon such terms
and conditions as Landlord may deem advisable (which terms may
be materially different from the terms of this Lease), in which
event the rents received on such reletting shall be applied (i)
first to the reasonable and actual expenses :of such letting
and collection, including, without limitation, necessary
renovation and alterations of the Leased Premises, reasonable
and actual attorneys' fees and any reasonable and actual real
state commissions paid, and (ii) thereafter toward payment of
all sums- due or to become due t Landlord hereunder. If a
sufficient amount to pay such expenses and sums shall not be
realized or secured, then Tenant shall pay Landlord any such
deficiently monthly, and Landlord may bring an action therefor
as such monthly deficiency shall arise. Landlord shall not, in
any vent, be required to pay Tenant any sums received by
Landlord on a reletting of the Leased Premises in excess of the
Basic Rent provided in this Lease, but such excess shall reduce
any acc ed present or future obligations of Tenant
hereunder. Landlord's re-entry and reletting of the Leased Premises
without termination of this Lease shall not preclude Landlord from
subsequently terminating this Lease as set forth below.
(b) Landlord may terminate this Lease by written notice to
Tenant specifying a date therefor, which shall be no sooner
than .(30) days following the date of such notice to Tenant,
and this Lease shall then terminate o .the date so specified as
if such date had been originally fixed as the expiration date
of the Te .In the event of such termination, Landlord shall be
entitled to recover from Tenant the worth at the time of the
award of all of the following:
(i) Any obligation hereunder which has accrued prior to the
date of termination, plus
(ii) The amount by which the unpaid Basic Rent and all other
charges which would have accrued after termination until the
time of award exceeds the amount of any sums which Landlord has
(or Tenant proves that Landlord could reasonably have) received
in mitigation, plus
(iii) The amount by which the unpaid Basic Rent for the
balance of the Term (excluding any unexercised option period or
portions thereof) after the time of award exceeds the amount of such
rental loss that Tenant demonstrates could be reasonably avoided by
Landlord.
Landlord shall not have any duty to mitigate its damages hereunder
(including, but not limited to, any duty to relet or release the
Leased Premises), regardless of the use of mitigation costs in the
calculations described above.
As used in this Paragraph 20(b) the term, "worth at the time of
the award" shall be computed by allowing simple interest at the
Default Rate for past due obligations, and employing a discount rate
equal to the Discount Rate on anticipated future obligations, on the
amount of the obligations payable on the date of such calculation In
the event this Lease shall be terminated as provided above, by
summary proceedings or otherwise, Landlord, its agents, servants or
representatives may immediately or at any. thereafter peaceably re-
enter and restore possession of the Leased Premises and remove all
persons and property therefrom, by summary dispossession
proceedings.
(c) Landlord may recover from Tenant, and Tenant shall pay to
Landlord upon demand, as Additional Rent hereunder such reasonable
and actual expenses as Landlord may incur in recovering possession
of the Leased remises, placing the same in good order and condition
and repairing the same for reletting and all other reasonable and
actual expenses, commissions and charges incurred by Landlord in
exercising any remedy provided herein or as a result of any Event of
Default by Tenant hereunder (including, without limitation,
attorneys' fees), provided, however, that in no event shall Tenant
be obligated to compensate Landlord for any speculative or
consequential, damages caused by Tenant's failure to perform its
obligations under this Lease.
(d) The various rights and remedies reserved to Landlrod
herein are cumulative, the rights and remedies described in
Paragraphs 20(a)-(d) shall survive termination of this Lease and
Landlord may pursue any and all such rights and remedies and any
other rights
and remedies available to Landlord under applicable law or equity,
whether at the same time or otherwise (to the extent not
inconsistent with specific provisions of this Lease); provided,
however, that no remedy of termination shall be available to
Landlord under this Lease except as expressly set forth in
Paragraph 20(b ) after the occurrence of an Event of Default.
Notwithstanding anything contained herein to the contrary, in the
event of a non-monetary Event of Default only, Landlord expressly
waives its right to forcibly dispossess Tenant from the Leased
Premises, whether peaceably or otherwise, without judicial
process, such that Landlord shall not be entitled to any
"commercial lockout" or any other provisions of applicable law
which permit landlords to dispossess tenants from commercial
properties without the benefit of judicial review. No such waiver
shall apply to a monetary Event of Default hereunder. Upon any
termination of this Lease, Tenant shall be entitled to remove, at
its sole cost and expense, its Inventory and Trade Fixtures from
the Leased Premises.
21. NOTICES. All notices, demands, requests, consents,
approvals, offers, statements and other instruments or
communications required or permitted to be given pursuant to
the provisions of this Lease (collectively "Notice" or
"Notices") shall be in writing and shall be deemed to have
been given for all purposes (i) three (3) days after having
been sent by United States mail, by registered or certified
mail, return receipt requested, postage prepaid, addressed to
the other party at its address as stated below, or (ii) one
(1) day after having been sent by Federal Express or other
nationally recognized air courier service, to the addresses
stated below:
(a) LANDLORD. If to Landlord at the address set forth on the
first page of this Lease, with copies to General Electric
Capital Business Asset Funding Corporation, Attention Vice
President and General Counsel. 10900 Northeast Fourth Street,
Suite 500, Bellevue. Washington 98004, and to Hunter,
Maclean, Exley & Dunn, P.C., 200 East Saint Julian Street,
Savannah. Georgia 31401, Attention: Dorothea Summerell,
Attorney-at-Law.
(b) TENANT. If to Tenant, at the address set forth on
the first page of this Lease, Attention: Real Estate Department,
with copies to: the Corporate Secretary and to McGuire Woods
L.L.P, One James Center, 901 East Cary Street, Richmond, Virginia
23219, Attn. T. Craig Harmon, Esq .
If any Lender shall have advised Tenant by Notice. the manner
aforesaid that it is the holder of a Mortgage and stating in said
Notice its address for the receipt of Notices, then simultaneously
with the giving of any Notice by Tenant to Landlord, Tenant shall
serve one or more copies of such Notice upon Lender in the manner
aforesaid. or the purposes of this Paragraph, any party may
substitute its address by giving fifteen (15) days notice to the
other party in the manner provided above.
22. MEMORANDUM OF LEASE. ESTOPEL CERTIFICATES. Tenant shall
execute, deliver and record, file or register from time to time
all such instruments as may be required by any present or future
law in order to evidence the respective interests of Landlord and
Tenant in any of the Leased Premises, and shall cause a memorandum
of such Lease, and any supplement hereto or to such other
instruments if any, as may be appropriate, to be recorded, filed
or registered and rerecorded, refiled or re-registered in such
manner and in such places as may be required by any present or
future law in order to give public notice d protect the validity
of this Lease. In the event of any discrepancy between the
provisions of said recorded memorandum of this Lease or
any other recorded instrument referring to this Lease and the
provisions of this Lease, the provisions of this Lease shall
prevail. Tenant shall, at any time and from time to time, upon not
less than twenty (20) days prior written request by Landlord,
execute, acknowledge and deliver to Landlord a statement in
writing, executed by Tenant or, if other than an individual, by a
President, Vice President or authorized general partner, principal
officer or agent of Tenant certifying (i) that this Lease is
unmodified and in effect (or, if three have been modifications,
that this Lease is in full effect as modified, setting forth such
modifications), (ii) the dates to which Basic Rent payable
hereunder has been paid (iii) that no default by Landlord exists
hereunder or specifying each such default; (iv) the remaining Term
hereof, and (v) there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency
which if adversely decided would materially and adversely affect
the financial condition and operations of Tenant or if any such
proceedings are pending or threatened to said party's knowledge,
specifying and describing the same. It is intended that any such
statements may be relied upon by Lender, the recipient of such
statements or their assignees or by any prospective mortgagee or
purchaser of the Leased Premises.
23. SURRENDER. Upon the expiration or earllier termination
of this Lease, Tenant shall peaceably leave and surrender the
Leased Premise (except as to any portion thereof with respect to
which this Lease has previously terminated) to Landdlord in the
same condition in which the Leased Premises were originally
received from Landlord at the commencement of this Lease, except
as to any repair or Alteration as permitted or required by any
provision of this Lease, and except for ordinary wear and tear and
damage by fire, casualty or condemnation but only to the extent
Tenant is not required to repair the same hereunder. Tenant may
remove at Tenant's sole cost and expense from the Leased Premises
on or prior to the expiration or earlier termination of this
Lease, Tenant's Trade Fixtures, Inventory and any personal
property which is owned by Tenant or third parties other than
Landlord, and Tenant at its expense shall, on or prior to such .
expiration or earlier termination of this Lease, repair any damage
caused by such removal. Tenant's Trade Fixtures and personal
property not so removed at the expiration of the Term or within
thirty (30) days after the earlier termination of the Term for any
reason whatsoever shall become the property of Landlord, and
Landlord max thereafter cause such property to be removed from the
Leased Premises. Landlord shall not in any manner or to any extent
be obligated to reimburse Tenant for any property that becomes the
property of Landlord in the manner set forth in the proceeding
sentence. Upon such expiration or earlier termination of the Term
hereof no party shall have any further rights or obligations
hereunder except as specifically provided herein.
24. NO MERGER OF TITLE. There shall be no merger of this
Lease nor of the leasehold estate created by this Lease with
the fee estate in or ownership of any of the Leased Premises
by reason of the fact that the same person, corporation; firm
or other entity may acquire or hold or own, directly or
indirectly, (i) this Lease or the leasehold estate created by
this Lease or any interest in this Lease or in such leasehold
estate and i) the fee estate or ownership of any of the
Leased premises or any interest in such fee estate or
ownership. No such merger shall occur unless and until all
persons, corporations, :firms and other entities having any
interest in (x) this Lease or the leasehold estate created by
this Lease an (y) the fee estate in or ownership of the
Leased Premises including, without limitation; Lender's
interest therein, or any part thereof
sought to be merged shall join in a written instrument effecting
such merger and shall duly record the same.
25. LANDLORD EXCULPATION. Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease . shall be enforced only
against the Landlord's interest in the Leased Premises and shall not
be enforced against the Landlord individually or personally.
26. HAZARDOUS SUBSTANCES.
(a) TENANT'S REDRESENTATIONS. As a material inducement
for Landlord to enter into this Lease, Tenant represents and
warrants that (i) except as may be permitted by applicable law,
throughout the Term of this Lease (A) Tenant will not permit the
release, discharge, disposal or spill of any Hazardous Materials (as
defined below) in, on, under or migrating from the Leased Premises
in concentrations. that exceed the applicable state, local or
federal assessment, remediation or monitoring Environmental
Requirements and (B) no part of the Leased Premises will be used by
Tenant or others to generate, manufacture, refine, transport, treat,
store, handle, dispose of, transfer, produce or process Hazardous
Materials (but notwithstanding the foregoing, nothing in this
Paragraph 26 shall prevent the storage, handling, and use to the
extent necessary and customary in normal automobile sales and
maintenance operations of petroleum products, automotive f1uid, and
such other Hazardous Materials, provided that the same are used,
handled, stored, labeled, and disposed of in accordance with
applicable Environmental Requirements), and Tenant represents and
warrants that it will at all, times comply with applicable
Environmental Requirements governing Hazardous Materials and (ii)
Tenant will not suffer or permit any activity in, fit or from all or
any part of the Leased Premises that will cause or contribute to
pollution (by petroleum or petroleum products, or otherwise) of the
Leased Premises in whole or in part or any other property in
concentrations requiring assessment, remediation or monitoring by
Tenant, Landlord or their respective successors or assigns under the
applicable federal, state or local Environmental Requirements.
"Hazardous Materials" shall mean all materials which because of
their quantity, concentration or physical, chemical or infectious
characteristics may cause or pose a present or potential hazard to
human health or the environment when improperly handled, treated,
stored, transported, disposed of or otherwise managed. The term
shall include (Without limitation) all petroleum, petroleum
products, explosives, radioactive materials, hazardous wastes,
hazardous or toxic substances, any material containing 1% or more
asbestos by weight by any other substance or material now or
hereafter defined as a '"hazardous" or "toxic"; substance, material
or product by the U.S. Environmental Protection Agency or the state
in which the Leased Premises is located under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), the
Resource Conservation and Recovery Act (RCRA), the Toxic Substances
Control Act (TSCA), the Federal Water Pollution Control Act (FWPCA)
or comparable state statutes and other Environmental Requirements
(as defined below). Tenant shall comply fully with all Environmental
Requirements. "Environmental Requirements" shall mean the above-
referenced statutes and all other applicable laws (whether
federa1,state or local) pertaining to the protection of human health
and the environment, including (without limitation) employee and
community right-to-know laws and all laws regarding the use,-
generation, storage, transportation, treatment, disposal or other
handling of Hazardous Materials.
(b ) TENANT'S REMEDIATION. If during the Lease Term any
Hazardous Materials are dumped, released, discharged, spilled
or leaked onto or into the Leased Premises or found to be
contaminating the Leased Premises (or if a party has reasonable
cause to believe that such dumping, releasing, discharge,
spilling or leak may have occurred or that such Hazardous
Materials may be contaminating the Leased Premises), the party
will notify the other party in writing ( except in cases of an
emergency, in which event the party shall have the right to
take action without written notice as provided herein) as to
the matter in question. In such event or at any other time as
may be. requested by Landlord, the parties will cooperate in
having reasonable examinations, tests or investigations
performed at Tenant's expense to determine the extent of the
problem and nature of appropriate corrective action (or if
Tenant fails to cause such examinations or investigations to be
performed after notice of the required action Landlord will
have the right to perform them on, Tenant's behalf and at
Tenant's expense). If such examinations demonstrate that the
Leased Premises is contaminated by Hazardous Materials at
levels requiring remedial action under applicable laws, Tenant
will have 30 days (or such longer time as may be reasonably
necessary under the circumstances or such lesser time as may be
required by emergency conditions, by law, regulation or
judicial orders or by any governmental entity, whichever is
sooner) after written notice from Landlord to remediate such
contamination as required by applicable law and (to the extent
necessary) to restore the Leased Premises to prior condition
but with new non-Hazardous Materials, failing which Landlord
may either terminate this Lease on written notice to Tenant or
take all action deemed necessary by Landlord in Landlord's
reasonable discretion to effect such elimination and (to the
extent necessary) restoration. If Landlord elects the latter,
upon request and as Additional Rent, Landlord will be entitled
to receive from Tenant all reasonable costs and expenses in any
way associated therewith, plus interest at the Default Rate.
(c) TENANT;S INDEMNITY. Tenant, for itself, its successors and
assigns, hereby agrees to defend, indemnify, hold harmless and
reimburse Landlord, its successors and assigns, and any Lender
.from, against and for any and all damages (excluding
consequential damages other than for diminution in value),
claims, demands, liabilities, losses, penalties and expenses
(including, without limitation, court costs and reasonable
attorneys' fees), including, without limitation, any diminution
in the value of the Leased Premises, which are in any manner
caused in whole or in part by the presence of any Hazardous
Materials on or about the Leased Premises or the failure of
Tenant or any subtenant, agent, employee or contractor of
Tenant or the Leased Premises to comply with any Environmental
Requirements, whether or not the same are known to or caused by
Tenant and whether the same occur during the term of this
Lease, any time prior to the term of this Lease or, with
respect to any occurrence or condition on or about the Leased
Premises which is caused by any condition, act or omission
prior to the expiration of this Lease, after the term of the
Lease, except to the extent of the gross negligence or willful
misconduct of Landlord, its successors or assigns. This
indemnity shall survive the termination, expiration or
forfeiture of this Lease.
(d) Landlord's Cooperation. Unless an Event of Default shall
exist hereunder or Tenant shall not be diligently performing
its obligations under subsections (b) and (c) above, Landlord
agrees to cooperate with Tenant in connection with (i) any
claim Landlord and/or Tenant may have against any third party
for the cost of any remediation conducted or to be conducted
on, in and under the Leased Premises or with respect to any
damage caused to the Leased Premises, and (ii) any insurance
covering such remediation and/or damage to the Leased
Premises. Landlord hereby assigns to Tenant any and all rights,
claims or causes of action Landlord may have with against such third
party or in connection with such insurance to the extent of any sums
paid by Tenant in fulfillment of its obligations under subsections
(b) and (c) above except to the extent that such rights, claims,
causes of action or insurance proceeds are necessary to fully
compensate Landlord with respect to any such remediation or damage
to the Leased Premises. Tenant "agrees to" pay all Landlord's out-of-
pocket costs incurred by Landlord in connection with such
cooperation.
(e) UNDERGROUND STORAGE TANKS. Notwithstanding anything
contained in Paragraph 26 to the contrary, but subject to the
indemnity obligations set forth above, Tenant shall have the
unqualified right to install, maintain and operate underground
storage tanks to hold petroleum as necessary for normal retail
automobile sales and maintenance operations provided that
installation, maintenance and operation of such underground
storage tanks are carried out in accordance with all
Environmental Requirements.
27 ENTRY BY LANDLORD. Landlord and its authorized
representatives shall have the right upon reasonable notice (which
shall be not less than 48 hours except in the case of emergency) to
enter the Leased Premises at all reasonable business hours (and at
all other times in the event of an emergency) for (i) the purpose of
inspecting the same or for the purpose of doing any work under
Paragraph 9, and may take all such action thereon as may be
necessary or appropriate for any such purpose (but nothing contained
in this Lease or otherwise shall create or imply any duty upon the
part of Landlord or Lender to make any such inspection or do any
such work), and (ii) the purpose of showing the Leased Premises to
prospective purchasers and mortgagees and, at any time Within six
(6) months prior to the expiration of the Term of this Lease, for
the purpose of showing the same to prospective tenants. No such
entry shall constitute an eviction of Tenant but any such entry
shall be done by Landlord in such reasonable manner as to minimize
any disruption of Tenant's business operation on the Leased
Premises.
28. STATEMENTS. Tenant shall submit to Landlord (i) within
forty five (45) days of the end of each of the first three (3)
fiscal quarters of each fiscal year of Tenant, quarterly balance
sheets and income and cash flow statements for Tenant (the
"Quarterly Statements'), each audited by an independent certified
public accountant; (ii) within ninety (90) days of the end of each
fiscal year of Tenant, audited financial statements for Tenant (the
"Annual Statements"), audited by an independent certified public
accountant. Quarterly 10Qs of Tenant as filed with the Securities
and Exchange Commission shall satisfy the requirements contained in
(i) herein. Copies of Tenant's 10ks filed with the Securities and
Exchange Commission will satisfy the requirement contain in (ii)
herein. The obligations of Tenant herein shall continue whether or
not this Lease shall have been assigned.
29. NO USURY. The intention of the parties being to conform
strictly to the usury laws now in force in the State, whenever
any provision herein provides for payment by Tenant to Landlord
of interest-at a rate in excess of the legal right permitted to
be charged. in such State, such interest rate herein provided
to be paid shall be deemed reduced to such legal interest rate.
30. BROKER. Landlord and Tenant represent and warrant to each
other that neither party negotiated with any broker in connection
with this Lease and that this Lease was negotiated directly by
Landlord and Tenant. Each party hereby agrees to indemnify the other
against all
claims, damages, costs and expenses incurred by the indemnified
party as a result of the breach of the foregoing representation or
warranty by the indemnifying party.
31. WAIVER OF LANDLORD'S LIEN. Landlord hereby waives any
Landlord's lien or similar lien upon Trade Fixtures and any
inventory of Tenant, regardless of whether such lien is created or
otherwise. Landlord agrees, at the request of Tenant, to execute a
waiver of any such Landlord's or similar lien for the benefit of
any present or future holder of a security interest in or lessor of
any Trade Fixtures or any inventory of Tenant Landlord acknowledges
and agrees in the future to acknowledge (in a written form
reasonably satisfactory to Tenant) to such persons and entities at
such times and for such purposes as Tenant may reasonably request
that the Trade Fixtures are Tenant's property and not part of the
Improvements (regardless of whether or to what extent such Trade
Fixtures are affixed to the Improvements) or otherwise subject to
the terms of this Lease.
32. NO WAIVER: CONSENTS. No delay or failure by either party
to enforce its rights hereunder shall be construed as a
waiver, modification or relinquishment thereof Any consent or
approval required by any party under this Lease shall be
deemed given if such party does not respond within ten (10)
business days after notice. Except to the extent any provision
herein specifically provides that a party has sole or absolute
discretion, the consent or approval of any party herein shall
not be unreasonably withheld, conditioned or delayed.
33 SEPARABILITY .If any term of provision of this Lease or
the application thereof to any provision of this Lease or the
application thereof to any persons or circumstances shall to any
extent be invalid and unenforceable, the remainder of this Lease,
or the application of such term or provision to person or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to the
extent permitted by law.
34. INDEMNIFICATION. Tenant agrees to defend, pay, protect,
indemnify, save and hold harmless Landlord and Lender from and
against any and all liabilities, losses, damages, penalties.
costs, expenses {including reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands or
judgments of any nature whatsoever, howsoever caused, arising
from any of the Leased Premises or the use, non-use,
occupancy, condition, design, construction, maintenance,
repair or rebuilding of any of, or otherwise relating to, the
Leased Premises, and any injury to or death of any person or
persons or any loss of or damage to any property, real or
personal, in any manner arising therefrom connected therewith
or occurring thereon (collectively, "Losses"), whether or not
Landlord has or should have knowledge or notice of the defect
or conditions, if any, causing or contributing to said Loss.
In case any action or proceeding is brought against Landlord
or Lender by reason of any such Loss, Tenant covenants upon
written notice from Landlord or Lender requesting the same to
defend Landlord and Lender in such action, with the expenses
of such defense paid by Tenant, and Landlord or Lender will
cooperate and assist in the defense of such action or
proceeding if reasonably requested to do so by Tenant. The
obligations of Tenant under this Paragraph 34 shall survive
any termination of this Lease with respect to Losses
identified in reasonable detail by the Claim Deadline, as
defined below. The "Claim Deadline" shall be:
(x) to the extent of any indemnification obligation arising
as a result of the claim by a third party against Landlord or
Lender, or the claim of a third party against the Leased
Premises, the date that is 30 days after the later of (i) the
expiration of the period during which such third party claim
may be brought under the applicable statute of limitations or
(ii) the date which is two (2) years after the expiration or
earlier termination of this Lease;
(y) except as set forth in (z) below, with respect to any
indemnification obligation of Tenant not described in
subparagraph (a) above, the day that is two (2) year's after
the expiration or earlier termination of this Lease;
(z) with respect to any indemnification obligation of Tenant
under Section 26 above, there shall be no Claim Deadline.
35 EASEMENTS, AONING AND ENTITLEMENTS
(a) EASEMENTS. Landlord agrees to enter into with Tenant, at
Tenant's expense including payment of Landlord's reasonable
attorneys' fees, such easements, covenants, waivers,
approvals or restrictions for customary and standard
utilities, parking or other matters as desirable for
operation of the Leased Premises (collectively, "Easement")
as requested by Tenant, subject to Landlord's approval of
such Easement, which approval shall not be unreasonably
withheld or delayed; provided, however, that no such Easement
shall result in any diminution in the value or utility of the
Leased Premises and further provided that no such Easement
shall render the use of the Leased Premises dependent upon
any other property or condition the use of the Leased
Premises upon the use of any other property, each of which
Tenant shall certify to Landlord in writing delivered with
Tenant's request with respect to such Easement. Tenant's
request shall also include Tenant's written undertaking
acknowledging that Tenant shall remain liable hereunder as a
principal and not merely as a surety or guarantor
notwithstanding the establishment of any Easement. If
Landlord shall fail to approve or disapprove any such
Easement within a period of thirty (30) days from receipt of
Tenant's request for approval of the same, then Landlord
shall be deemed to have approved such Easement.
(b) ENTITLEMENTS. Landlord agrees to allow Tenant, at
Tenant's expense including payment of Landlord's reasonable
attorneys' fees, if any, to seek such zoning variances,
special use permits and other such entitlements as are
desirable for operation of the Leased Premises (collectively,
"Entitlements"); provided, however, that no such Entitlement
shall result in any diminution in the value or utility of the
Leased Premises and further provided that no such Entitlement
shall restrict the use of -the Leased Premises ( other than
those restrictions that relate only to Tenant's use of the
Leased Premises, or that are, by their terms, effective only
for so long as Tenant occupies the Leased Premises). Landlord
hereby appoints Tenant as Landlord's attorney in fact for the
purpose of executing any applications or other documentation
with respect to any such Entitlements. Tenant acknowledges
that Tenant shall remain liable under such Entitlements as a
principal and not merely as a surety or guarantor
notwithstanding the establishment of any Entitlement.
36. HEADINGS. The paragraph and section headings in this
Lease are used only for convenience in finding the subject matters
and are not part of this Lease or to be used in determining the
intent of the parties or otherwise interpreting this Lease.
37 MODIFICATIONS. This Lease may be modified, amended,
discharged or waived only by an agreement in writing signed by the
party against whom enforcement of any such modification, amendment,
discharge or waiver is sought.
38. SUCCESSORS. ASSIGNS. The covenants of this Lease shall
run with the Land and bind Tenant, the heirs, distributes, personal
representatives, successors and permitted assigns of Tenant and all
present and subsequent encumbrances and subtenants of any of the
Leased Premises, and shall inure to the benefit of and bind
Landlord, its successors and assigns. In the event there is more
than one Tenant, the obligation of each shall be joint and several.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited
to mean and include only the owner or owners of the Leased Premises
in possession at the time in question and in the event of any
transfer or transfers of the title of the Leased Premises, the
Landlord herein named (and in case of any subsequent transfers or
Conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer and conveyance of
all personal liability as respects the performance of any covenants
or obligations on the part of Landlord contained in this Lease
thereafter to be performed.
39. COUNTEMARTS. This Lease may be executed in several
counterparts, which together shall be deemed one and the same
instrument.
40. GOVERNING LAW. This Lease shall be governed by and
construed according to the laws of the State.
41. WAIVER OF JURY TRIAL LANDLORD AND TENANT HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL UNDER THE LAWS OF THE STATE
OF GEORGIA OR OTHERWISE OF ANY CLAIM: OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF, DIRECTLY OR INDIRECTLY , THIS LEASE, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS AMONG TENANT OR LANDLORD RELATING
TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTE:MPLATED BY THIS
LEASE OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS
BEING ESTABLISHED AMONG LANDLORD AND TENANT THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAYBE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, .BREACH OF DUTY CLAIM:S AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS LEASE, ANY RELATED DOCUMENTS,
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTIONS CONTEMPLATED BY THIS LEASE OR ANY RELATED
TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS LEASE MA Y BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
42. ATTORNEYS' FEES. In the event of any action or proceeding
by either party against the other under this Lease, the
prevailing party shall be entitled to recover for the fees of
its attorneys in such action or proceeding, including costs of
appeal, if any, in such amount as the court may adjudge
reasonable as attorneys' fees.
43. EXPANSION REIMBURSEMENT AGREEMENT. Landlord and Tenant
have entered into an Expansion Reimbursement Agreement, dated of
even date herewith, with respect to the Property. Landlord and
Tenant hereby agree that in the event an amendment or modification
to this Lease is required pursuant to the terms of the Expansion
Reimbursement Agreement, Landlord and Tenant shall cooperate in
good faith to enter into an amendment or modification to this Lease
as so required.
44. EXCULRATION OF TRUSTEE. It is expressly agreed, anything
herein or elsewhere to the contrary notwithstanding, that each and
all of the representations, warranties, covenants, undertakings and
agreements made herein or elsewhere on the part of the Landlord are
made and intended not as personal representations, warranties,
covenants, undertakings and agreements by Wilmington Trust FSB, a
federal savings bank {"FSB"), or for the purpose or with the intent
of binding FSB personally, but are made and intended for the
purpose of binding only the Trust Estate (as such term in defined
in the Trust Agreement, dated as of November 1,2002, as amended and
supplemented (the "Trust Agreement") between General Electric
Capital Business Asset Funding Corporation, a Delaware corporation,
and Wilmington Trust Company, a Delaware banking corporation, and
FSB), and this Agreement is being executed and delivered by FSB not
in its own right but solely in the exercise of the powers expressly
conferred upon it as trustee under the Trust Agreement; and no
personal liability or personal responsibility is assumed by or
shall at any time be asserted or enforceable against FSB on account
of this Agreement or . any representation, warranty, covenant,
undertaking or agreement of the Landlord, either expressed or
implied herein or elsewhere, all such personal liability, if any,
being expressly waived and released by the other parties hereto and
by all persons or entities claiming by, through or under any of
them, and that all recourse against FSB under this Agreement shall
be limited solely to the Trust Estate.
[See next page for signatures. ]
IN WITNESS WHEREOF, Landlord and Tenant have caused this
instrument to be executed under seal as of the day and year first
above written.
LANDLORD:
WILMINGTON TRUST FSB, a federal savings
bank, not in its individual capacity, but
solely as co-trustee of the
GECBAF REAL ESTATE TRUST
2002-N under Trust Agreement dated as
of November 1, 2002, as amended
By: /s/ James D Nesci
Its: Vice President
TENANT:
CARMAX, INC.
By: /s/ Thomas W Reedy, Jr.
Its: Thomas W Reedy, Jr., Vice President
and Treasurer
EXHIBITS
EXHIBIT "A" LEASED PREMISES
EXHIBIT "B" INITIAL BA E RENT
EXHIBIT "C" TRADE FIXTURES
EXHIBIT "D" HAZARD INSURANCE REQUIREMENTS
EXHIBIT "E" FORM OF SUBORDJNATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
Exhibit A
LEASED PREMISES
ALL THAT TRACT or parcel of land lying and being in Land Lots 421
and 482 of the 18th District of Douglas and Cobb Counties,
Georgia, and being more particularly described as follows:
COMMENCING at the intersection of the northerly right of way of
Thornton Road (290 foot right of way) and the west line of Land
Lot 482; thence south 50 degrees 55 minutes 15 seconds & east for
41.76 feet, to a 1/2 inch rebar set, and the Point of Beginning;
thence departing the right of way of Thornton Road, north 25
degrees 55 minutes 10 seconds east, for 1,140.63 feet, to a 1/2
inch rebar on the southerly bank of Carroll Creek; thence
continuing along said line, north 25 degrees 55 minutes 10
seconds east, a distance of 11.52 feet; to the centerline of
Carroll Creek; thence along the centerline of Carroll Creek the
following bearing and distances: south 78 degrees 11 minutes 32
seconds east, for 56.74 feet; thence north 83 degrees 11 minutes
55 .seconds east, for 184.43 feet; thence south 47 degrees 35
minutes 48 seconds east, for 342.71 feet; thence north 61 degrees
34 minutes 57 seconds east, for 46.11 feet; .thence south 30
degrees , 29 minutes 28 seconds east, for 159.12 feet; thence
south 78 degrees 35 minutes 46 seconds east, for 229.72 feet, to
the east line of Land Lot 421; thence departing the centerline of
Carroll Creek and continuing along the easterly line of Land lots
421 and 482, south 07 degrees 36 minutes 22 seconds west, for
2276 feet, to a 1/2 inch rebar; thence south 07 degrees 36
minutes 22 seconds west, for 231.54 feet, to a metal fence post
in concrete cut off at ground level; thence departing the
easterly line of Land Lot 482, south 66 degrees 36 minutes 20
seconds west, for 1,286.85 feet, to a 1/2 inch rebar on the
northerly right of way of Thornton Road (290 foot right of way);
thence continuing along the northerly right of way of Thornton
Road the following bearings and distances; north 48 degrees 41
minutes 08 seconds west, for 46.51 feet; thence north 49 degrees
46 minutes 25 seconds west, for 103.93 feet; thence north 50
degrees 55 minutes 15 seconds west, for 16.51 feet, to the Point
of Beginning, containing 806,639 square feet, or 18.518 acres,
more or less, as shown on ALTNACSM Land title Survey for Gar-Max
Auto Superstores, Inc.; General Electric Capital. Business Asset
Funding Corporation, a Delaware corporation, its successors of
assigns, and Chicago title Insurance Company, made by Greenhome &
O'Mara, Inc., bearing the seal of Julian D. Grace, Ga. RL.S.
No.2679, dated May 30,2003.