ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this
"Assignment") is made and entered into effective as of
this 22 nd day of May, 2009, by and between Bradford
Landing South LLC ("Assignor"), and AEI Net Lease Income &
Growth Fund XX Limited Partnership and AEI Income & Growth
Fund 27 LLC ("Assignee").
RECITALS:
A. Assignor and Assignee are parties to that certain
Purchase and Sale Agreement dated February 24, 2009, as it
may have been amended (the "Agreement"), pursuant to which
Assignee is acquiring from Assignor the real property and
improvements, located on property more particularly
described on EXHIBIT A attached hereto and incorporated
herein by this reference (the "Property").
Pursuant to the terms of the Agreement, Assignor
desires to sell, assign, convey, transfer and set over to
Assignee and Assignee desires to assume all of Assignor's
interest in that certain Lease dated September 26, 2007,
(the "Lease"), by and between Assignor and Staples the
Office Superstore East, Inc. (the "Tenant"), including all
rents prepaid for any period subsequent to the date of
this Assignment, subject to the terms and conditions set
forth below.
Assignor is the Landlord under the Lease with full
right and title to assign the Lease and the Rent to
Assignee as provided herein. The Lease is valid, in full
force and effect and has not been pledged, modified or
amended. So far as is known to Assignor, there is no
default by Tenant under the Lease and no Rent (as defined
below) has been waived, anticipated, discounted,
compromised or released.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged by the parties, Assignor and Assignee hereby
agree as follows:
1 Assignor hereby irrevocably and unconditionally
sells, assigns, conveys, transfers and sets over unto
Assignee, its heirs, successors and assigns as of the date
hereof (the "Effective Date"), all of Assignor's right,
title and interest in, to and under: (i) the Lease,
together with any and all guaranties thereof, if any, and
(ii) any and all rents prepaid as of the Effective Date,
held by Assignor in connection with the Lease (the
"Rent").
2. Assignee hereby assumes and shall be liable for any
and all liabilities, claims, obligations, losses and
expenses, including reasonable attorneys' fees arising in
connection with the Lease which are actually incurred, and
which arise by virtue of acts or omissions occurring
thereunder, on or after the Effective Date.
Assignor shall indemnify and hold Assignee harmless
from any and all liabilities, claims, obligations, losses
and expenses, including reasonable attorneys' fees arising
in connection with the Lease which are actually incurred,
and which arise by virtue of acts or omissions occurring
thereunder, or as a result of Assignor's failure to
fulfill the landlord's duties and obligations accruing
under the Lease, prior to the Effective Date.
Assignee shall indemnify and hold Assignor harmless
from any and all liabilities, claims, obligations, loss
and expenses, including reasonable attorney's fees,
arising in connection with the Lease or as a result of
Assignee's failure to fulfill the landlord's duties and
obligations accruing under the Lease on or after the
Effective Date. Assignee shall be entitled to receive all
income arising from the Lease from and after said
Effective Date. Assignor shall be entitled to receive all
income accruing from the Lease prior to the Effective
Date.
Notwithstanding the foregoing, Assignor shall continue to
be obligated to: (a) correct any defects in Landlord's
Work and/or Landlord's Completion Work (as such terms are
defined in the Lease), arising on or before October 4,
2009, subject to the terms of Section 2.5.6 of the Lease,
provided that Assignee delivers to Assignor written notice
of such claims of Tenant on or before October 9, 2009; and
(b) with respect to latent defects, enforce the rights of
Owner under that certain AIA Document A111 between
Assignor, as Owner, and Xxxxx Builders, Inc, as Contractor
dated November 27, 2007 (the "Construction Contract") for
Lot 2 on behalf of Assignee and at Assignee's expense for
correction of such latent defects (If the remedy of such
matters shall take beyond the aforementioned date,
Assignor agrees to undertake the remedy until completion).
Assignor shall indemnify and hold Assignee harmless from
any and all liabilities, claims, obligations (including
reasonable attorney's fees for the enforcement of this
provision to the extent actually incurred) resulting from
Assignor's failure to fulfill its obligations under this
paragraph.
3. Assignor shall direct the Tenant and any successor
tenant under the Lease to pay to Assignee the Rent and all
other monetary obligations due or to become due under the
Lease for the period beginning on the Effective Date.
4. This Assignment shall be governed by and construed in
accordance with the laws of the state in which the
Property is located.
5. All rights and obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit
of Assignor, Assignee and the heirs, successors and
assigns of each such party.
6. This Assignment may be executed in any number of
counterparts, each of which shall be effective only upon
delivery and thereafter shall be deemed an original, and
all of which shall be taken to be one and the same
instrument, for the same effect as if all parties hereto
had signed the same signature page. Any signature page of
this Assignment may be detached from any counterpart of
this Assignment without impairing the legal effect of any
signatures thereon and may be attached to another
counterpart of this Agreement identical in form hereto but
having attached to it one or more additional signature
pages.
7. Whenever the context so requires in this Assignment,
all words used in the singular shall be construed to have
been used in the plural (and vice versa), each gender
shall be construed to include any other genders, and the
word "person" shall be construed to include a natural
person, a corporation, a firm, a partnership, a joint
venture, a trust, an estate or any other entity.
IN WITNESS WHEREOF, Assignor and Assignee have
executed this Assignment effective as of the day and
year first above written.
ASSIGNOR: BRADFORD LANDING SOUTH
LLC, an Illinois limited
liability company
By: Bradford Real Estate
Services Corp., its manager
By:/s/ XXXX XXXXX
Name: Xxxx Xxxxx
Its: Treasurer and Assistant
Secretary
ASSIGNEE: AEI NET LEASE INCOME &
GROWTH FUND XX LIMITED
PARTNERSHIP, a Minnesota
limited partnership
By: AEI Fund Management XX, Inc.,
a Minnesota corporation,
Its corporate general
partner
By: /s/ XXXXXX X XXXXXXX
Xxxxxx X Xxxxxxx, Its President
AEI INCOME & GROWTH FUND 27
LLC, a Delaware limited
liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
Its managing member
By: /s/ XXXXXX X XXXXXXX
Xxxxxx X Xxxxxxx, Its President
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
The forgoing instrument was acknowledged before me
this day of May,
2009, by Xxxx Xxxxx, as Treasurer/Assistant Secretary of
Bradford Real Estate Services Corp., the manager of
Bradford Landing South LLC, an Illinois limited liability
company, on behalf of said corporation.
WITNESS my hand and official seal.
Notary Public
My commission expires
ACKNOWLEDGEMENT
STATE OF MINNESOTA
)SS.
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, duly
commissioned and qualified within and for the State and
County aforesaid,
Personally came and appeared, Xxxxxx X. Xxxxxxx, that
he is the President of AEI Fund Management XX, Inc.,
corporate general partner of AEI Net Lease Income & Growth
Fund XX Limited Partnership, and that as such officer and
on behalf of and in the name of such corporation, on May
20 , 2009, he signed and executed the above and foregoing
instrument, and said appearer acknowledged said instrument
to be the free act and deed of said corporation, for the
purposes and considerations therein expressed on behalf
of the limited partnership.
IN WITNESS WHEREOF, this instrument is executed in
the presence of the undersigned witnesses and me, a Notary
Public, on this 20th day of May, 2009.
/s/ Xxxxxxx X Xxx
Notary Public
[notary seal]
ACKNOWLEDGEMENT
STATE OF MINNESOTA
)SS.
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, duly
commissioned and qualified within and for the State and
County aforesaid,
Personally came and appeared, Xxxxxx X. Xxxxxxx, that
he is the President of AEI Fund Management XXI, Inc.,
managing member of AEI Income & Growth Fund 27 LLC, and
that as such officer and on behalf of and in the name of
such corporation, on May 20 , 2009, he signed and executed
the above and foregoing instrument, and said appearer
acknowledged said instrument to be the free act and deed
of said corporation, for the purposes and considerations
therein expressed on behalf of the limited liability
company.
IN WITNESS WHEREOF, this instrument is executed in
the presence of the undersigned witnesses and me, a Notary
Public, on this 20th day of May, 2009.
/s/ XXXXXXX X XXX
Notary Public
[notary seal]
EXHIBIT A
Legal Description
Real property in the City of Xxxxxx Hills, County of Lake,
State of Illinois, described as follows:
Parcel 1:
Lot 2 in the Shoppes at Xxxxx'x Landing Subdivision of parts
of Section 28 and 33, Township 44 North, Range 11 East of the
Third Principal Meridian, according to the Plat thereof
recorded October 11, 2007 as document 6255002, in Lake County,
Illinois.
Parcel 2:
Easement for the benefit of Parcel 1 for access, ingress and
egress as created by the Declaration of Easements, Covenants,
Restrictions, Rights and Obligations by and between Bank of
America N.A., Xxxx X. Xxxxx, Xx., Xxxxxxxx Xxxxx XxXxxxxxx,
and Xxxxxxx X. Xxxxx, as successor trustees under Declaration
of Trust dated August 12, 1935, Bradford Landing South LLC, an
Illinois limited liability company, and Xxxx'x Home Centers,
Inc., a North Carolina corporation, recorded October 11, 2007
as document 6255007 as set forth on the Site Plan attached
thereto as Exhibit A.
Parcel 3:
Easement for the benefit of Parcel 1 for ingress and egress
as created by Easements, Covenants, Conditions and
Restrictions by and between Bradford Landing South LLC, an
Illinois limited liability company and Xxxx'x Home Centers,
Inc., a North Carolina corporation, recorded October 11, 2007
as document 6255006, as set forth in Exhibit A attached
thereto.
Parcel 4:
Easement for the benefit of Parcel 1 for access as created by
Declaration of Easements and Maintenance Agreement made by
Bradford Landing South LLC, an Illinois limited liability
company, dated October 9, 2007, recorded October 11, 2007 as
document 6255008, as amended by First Amendment to Declaration
of Easements and Maintenance Agreement made by Bradford Landing
South LLC, an Illinois limited liability company, dated and
recorded as of even date herewith.
LEASE
between
BRADFORD LANDING SOUTH LLC
and
STAPLES THE OFFICE SUPERSTORE EAST, INC.
Dated September , 2007
for premises located at
The Shoppes at Xxxxx'x Landing
Vernon Hills, Illinois
The preparation, revision or delivery of this Lease for
examination and discussion shall in no event be deemed to be an
offer to lease the Premises but shall be merely a part of the
negotiations between Landlord and Tenant. Neither party hereto
shall have any obligation or liability to the other whatsoever
at law or in equity (including any claims for detrimental
reliance or promissory estoppel) unless and until such time as
both parties shall have executed and delivered this Lease.
Table of Contents
Article I. Basic Data 1
2
Article IL Lease of Premises
Section 2.1. Premises 2
Section 2.2. Building and Center 2
Section 2.3. Common Facilities 3
Section 2.4. Possession 4
Section 2.4.1. Delivery of 4
Possession
Section 2.4.2. Date of Delivery 4
Section 2.4.3. Condition of Premises 4
Section 2.4.4. Landlord's Completion 5
Work
Section 2.4.5. Certificate of 6
Occupancy
Section 2.5. Landlord's Work 6
Section 2.5.1. Intentionally Omitted 6
Section 2.5.2. Plans and 6
Specifications
Section 2.5.3. Landlord's Work 6
Schedule; Permits
Section 2.5.4. Performance of Work 7
Section 2.5.5. Tenant's Inspection 7
Section 2.5.6. Landlord's Guarantee 8
of Construction
Section 2.6. Tenant's Work 8
Section 2.7. Construction 8
Representatives
Section 2.8 Adjustment of Areas 8
Article III. Term 9
Section 3.1. Commencement Date; Term 9
Section 3.2. Options 9
Section 3.3. Lease Years 9
Article IV. Rent and Additional 10
Charges
Section 4.1. Base Rent 10
Section 4.2. Taxes 10
Section 4.2.1. Tenant's Tax Payments 10
Section 4.2.2. Definition of 10
Property Taxes
Section 4.2.3. Tax Reductions 11
Section 4.3. Insurance Contribution 11
Section 4.4. Common Facilities Costs 11
Section 4.4.1. Tenant's Obligation 11
Section 4.4.2. Definition of Common 11
Facilities Costs
Section 4.4.3. Payment of Common 11
Facilities Costs
Vernon Hills, IL (RKH) 7-20-07
Section 4.4.4. Records; Audit Right 12
Section 4.5. Shared Driveway Costs 12
Section 4.5.1. Tenant's Obligation 12
Section 4.5.2. Definition of Slared Driveway Costs 12
Section 4.5.3. Payment of Shared Driveway Costs 12
Section 4.5.4. Records; Audit Right 12
Section 4.6. Payments 12
Article V. Use 13
Section 5.1. Permitted Use 13
Section 5.2. Exclusive, Prohibited and Restricted
Uses 13
Section 5.2.1. Exclusive Use 13
Section 5.2.2. Prohibited Uses 14
Section 5.3. Covenants in General 15
Section 5.4. Recapture 15
Section 5.4.1. Termination Payment 16
Section 5.5. Obligation to Open 16
Article VI. Alterations; Signs 16
Section 6.1. Compliance with Law 16
Section 6.2. Tenant's Alterations 16
Section 6.2.1. Satellite Antennae 17
Section 6.3. Tenant's Pei
MIAS 17
Section 6.4. Liens 17
Section 6.5. Trade Fixtures 17
Section 6.6. Compactors and Dumpsters 17
Section 6.7. Signage 18
Section 6.7.1. Initial Signage 18
Section 6.7.2. Future Signage 18
Section 6.7.3. Initial Pylon Signage 18
Article VII. Insurance 18
Section 7.1. Landlord's Insurance 18
Section 7.1.1. Liability Insurance 18
Section 7.1.2. Property Insurance 19
Section 7.2. Tenant's Insurance 19
Section 7.2.1. Liability Insurance 19
Section 7.2.2. Sole Risk of Tenant 19
Section 7.2.3. Self-Insurance 19
Section 7.3. General Requirements 19
Section 7.3.1. Provisions of Policies 19
Section 7.3.2. Release; Waiver of Subrogation 20
Section 7.3.3. Increases in Insurance 20
Section 7.4. Indemnity 20
Section 7.4.1. Landlord's Indemnity 20
Section 7.4.2. Tenant's Indemnity 20
Section 7.4.3. Environmental Indemnities 20
Article VIII. Maintenance, Repairs and Utilities 21
Section 81 Tenant's Obligations 21
Section 8.2. Landlord's Obligations 22
Section 8.3. Utilities and HVAC 23
Section 8.3.1. Utilities 23
Section 8.3.2. HVAC Maintenance 23
Section 8.4. Performance 23
Article IX. Assignment 23
Section 9.1. Permitted Assignment 23
Section 9.2. Recognition 24
Article X. Casualty; Restoration 24
Section 10.1. Restoration 24
Section 10.2. Substantial Casualty 24
Section 10.3. Rent Abatement; Suspension of Term 25
Article XI. Eminent Domain 25
Section 11.1. Total 25
Section 11.2. Partial 25
Section 11.3. Rent Abatement 26
Section 11.4. Award 26
Article XII. Defaults; Remedies 26
Section 12.1. Tenant's Defaults 26
Section 12.2. Remedies 26
Section 12.3. Disputes 27
Section 12.4. Self Help 27
Article XIII. Representations and Warranties;
Quiet Enjoyment 27
Section 13.1. Landlord's Representations
and Warranties 27
Section 13.2. Quiet Enjoyment 28
Section 13.3. Subordination; Non-Disturbance 28
Section 13.4. Memorandum of Lease 29
Section 13.5. Landlord Waiver 29
Section 13.6. The CCRs 29
Section 13.6. X. Xxxxx of Rights
Section 13.6.2. Priority of OEA 29
Article XIV. General Provisions 30
Section 14.1. Broker 30
Section 14.2. Rent Refund; Reimbursement 30
Section 14.3. Notices 30
Section 14.4 Holding Over 30
Section 14.5. Waiver/Remedies 30
Section 14.6. Successors 31
Section 14.7. Interpretation 31
Section 14.8. Consents and Approvals 31
Section 14.9. Force Majeure 31
Section 14.10. Partial Invalidity 31
Section 14.11. Attorney Fees 32
Section 14.12. Certificates 32
Section 14.13. Entire Agreement 32
Section 14.14. Interest 32
Section 14.15. Effect of Lease 32
Section 14.16. CPI 32
Section 14.17. Waiver of Consequential Damages 32
Section 14.18. Exculpation 32
Section 14.19. Co-Tenancy 33
Section 14.20. Acquisition Contingency 33
Signatures 35
Exhibits 37
Exhibit A. Plan of Center 37
Exhibit B-1. Legal Description of Premises 38
Exhibit B-2. Legal Description of Center 39
Exhibit C. Landlord's Work 40
Exhibit D. Tenant's Work 41
Exhibit E. Prototypical Signage and Exhibit
Criteria 42
Exhibit E-1. Building Elevations 43
Exhibit E-2. Pylon/Monument Signage 44
Exhibit F. Existing Exclusives 45
Exhibit G. The CCRs 46
Schedules 47
Schedule 1. Commencement Date Agreement 47
Schedule 2A. Subordination, Non-Disturbance
and Attornment Agreement 48
Schedule 2B. Recognition and Attornment Agreement 51
Schedule 3. Memorandum of Lease 53
LEASE
THIS LEASE is made as of September , 2007 by and between
BRADFORD LANDING SOUTH LLC, an Illinois limited liability company
("Landlord"), and STAPLES THE OFFICE SUPERSTORE EAST, INC., a
Delaware corporation- "Tenant")
Article I. Basic Data
Each reference in this Lease to any of the terms contained in
this Article or otherwise defined herein shall be construed to
incorporate the definitions or data stated under that term.
Premises Address: The Shoppes at Xxxxx'x
Landing Milwaukee Avenue and
Xxxxx'x Parkway Vernon Hills,
IL
Term: Initial Term: 10 Lease Years
Extended Term: 3 options for 5 additional
Lease Years, followed by one
additional option for 4
Base Rent: Lease Year Lease Years and 11 calendar months
P.S.F.* Annually Monthly
1-10 $23.00 $440,450.00 $36,704.17
11-15 $24.50 $469,175.00 $39,097.92
16-20 $26.00 $497,900.00 $41,491.67
21-25 $27.50 $526,625.00 $43,885.42
26-30 $29.00 $555,350.00 $46,279.17
* P.S.F. is defined as per square foot of leaseable area within the
Building.
As defined in Section
2.8 hereof As defined
in Section 2.8 hereof
Environmental Report Date: As of the date hereof
Final Specifications Date: November 30,2007
Work Commencement Date: November 1, 2007
Delivery Date: June 30, 2008
Outside Delivery Date: October 30, 2008
LandLord address c/o Bradford Real Estate
Services Corp.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Landlord's Federal ID #: 00-0000000
Landlord's Property Management
Representative: Xx. Xxxxx Toutman, Chief
Financial Officer Bradford Real
Estate Services Corp.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Tenant Address: X.X. Xxx 0000
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Lease Administrator
with a copy to: Attention:
Legal Department Reference:
Vernon Hills, IL
Construction
Representatives: Landlord: Mr. Xxxx Dams
Tenant: Mr. Xxxx Xxxxx or Xx. Xxxxx Xxxxxxx
Article IL Lease of Premises
Section 2.1. Premises. In consideration of the mutual
covenants and agreements herein contained, Landlord hereby leases
to Tenant the premises of approximately 1.93 acres of land (the
"Premises") located at the Premises Address which is designated as
"PREMISES" on Exhibit A and is legally described on Exhibit B-1,
with all improvements, structures and buildings located thereon.
Section 2.2. Building and Center. The Building containing
approximately 19,150 square feet of space (the "Building") is or
will be located on a portion of the Premises and is shown
approximately on Exhibit A. The Premises is located on a portion
of that certain tract of land which is shown approximately on
Exhibit A, contains approximately 21.89 acres of land, is legally
described on Exhibit B-2, and is commonly referred to as The
Shoppes at Xxxxx'x Landing (the "Center"). Landlord may increase
the size of the Center by adding land adjacent thereto and may
decrease the size of the Center by disposing of any part thereof;
provided, however, the provisions of clauses (a) through (e) of
Section 2.3 hereof and the provisions of Sections 5.2, 5.3, 6.1,
7.1, 7.3, 7.4, 8.2, 11.2 and the last sentence of Section 10.1,
all as contained in this Lease, shall continue to apply, or
thereafter shall apply, to the land in question notwithstanding
the fact that it may no longer be part of the Center (except that
the provisions of Section 2.3(b) shall not apply to land added to
the Center). Notwithstanding the foregoing, it is understood that
the "Center" shall initially consist of Phase I consisting of Xxxx
0, 0, 0 xxx 0 xxx Xxxxxx X, all as depicted on Exhibit A. In the
event Landlord, in Landlord's sole discretion, hereafter acquires
all (or a portion) of the remaining Lots shown in Exhibit A
("Phase II"), Phase II (or the portion so acquired) shall
thereafter be deemed to be included within the definition of
the Center for all purposes hereunder, without notice to Tenant.
Notwithstanding the foregoing, at Landlord's option, Lot 5 as
shown on Exhibit A may be part of either Phase I or Phase II.
Section 2.3. Common Facilities. Landlord grants to Tenant,
its employees and invitees, in common only with other tenants
and their business invitees; the non-exclusive right and-
easement to use all of the sidewalks, driveways, parking areas,
alleys, service areas including loading and unloading facilities
(other than the loading area, if any, which is designed for use
with the Premises or other premises within the Center), Center
signs (with Tenant's rights to same being governed under Section
6.7 hereof), landscaping, if any, septic systems, cesspools and
other facilities of the Center designed for use by all occupants
of the Center (the "Common Facilities"). Landlord grants to
Tenant the exclusive right to use that portion of the service
area, including loading areas, designed for use with the Building
and the right to use the sidewalks adjacent to and immediately in
front of the Building for the storage of shopping carts. Landlord
agrees to:
(a) allow uninterrupted use of the Common Facilities, and
unobstructed pedestrian and vehicular access to the Common
Facilities from other areas of the Center and from Milwaukee Avenue
and Xxxxx'x Parkway and from other public ways (including all means
of ingress and egress shown on Exhibit A), at all times except
during reasonable periods of time required to provide necessary
maintenance or repairs or to prevent public dedication (which
periods Landlord shall give advanced notice of and use best efforts
to minimize) provided, however, that Landlord shall not perform or
allow other tenants in the Center to perform any repair, non-routine
maintenance or other work in the Common Facilities located within
Tenant's Protected Area depicted on Exhibit A other than initial
construction and emergencies from August 1 through September 15,
April 1 through July 4, or from November 20 through January 7 of any
Lease Year;
(b) not (i) construct or allow any buildings, free-standing signs,
kiosks, other structures or outdoor sales areas within Phase I of
the Center other than as shown on Exhibit A, (ii) increase the
height of any outparcel or pad site buildings in the Center above
that allowed under the CCRs, (iii) except as expressly provided
herein, construct or allow any signage or other improvement upon the
exterior walls or roof of the Building, or (iv) modify the exterior
of the Building from that shown on Exhibit E;
(c) not otherwise change the Common Facilities located within
Tenant's Protected Area in any manner without the consent of Tenant;
(d) except to the extent Landlord is incapable of complying with
the following due solely to the proper exercise of eminent domain,
not reduce the number of parking spaces serving the Center below a
ratio of 4 spaces per 1000 square feet of Center leaseable area, or
reduce the number. of spaces or change the arrangement of parking
spaces in the Tenant's Protected Area designated on Exhibit A, or
impose a parking fee;
(e) to the extent permitted under applicable law, maintain a no
solicitation policy within the Center (but Landlord shall have no
obligation to enforce same). Tenant shall have the right, but not
the obligation, to enforce such no solicitation policy against
violators located
anywhere within the Center and Tenant agrees to indemnify Landlord
for all costs, claims and liabilities arising out of any such
enforcement action taken by Tenant; and
(f)prior to and during any construction of improvements on any
of the parcels within
Ph II-of the Center; Landlord agrees-to erect-and maintain - at i
ts sole--cost-tempotaly fences around such parcels until such
construction is substantially completed. Further, no construction
materials, debris and/or equipment in connection with any such
future construction shall be stored within Tenant's Protected
Area.
With respect to property which is not owned by Landlord but is
subject to the CCRs, it is understood that any rights granted to
Tenant hereunder by Landlord and/or any obligations hereunder of
Landlord shall only be to the extent of Landlord's rights under
the CCRs; Landlord hereby agreeing to use reasonable efforts and
all due diligence to enforce such rights under the CCRs.
Section 2.4. Possession
Section 2.4.1. Delivery of Possession. Upon completion
of Landlord's Work, Landlord will put Tenant in complete and
exclusive actual possession of the Premises in the condition and
on the terms set forth herein ("Delivery of Possession"). Landlord
shall give Tenant at least 30 days' prior notice (in accordance
with Section 14.3 of this Lease and to Tenant's Construction
Representative) of the date of Delivery of Possession and, upon
receipt of such notice by Tenant, the Delivery Date hereunder
shall thereafter be deemed to be the earlier of (i) the original
Delivery Date set forth in Article I hereof, or (ii) the date set
forth in Landlord's notice. Upon Delivery of Possession, Landlord
shall give Tenant an additional notice thereof in the manner
aforesaid.
Section 2.4.2. Date of Delivery. Landlord will use its
good faith, diligent and commercially reasonable efforts to
complete Landlord's Work and to have Delivery of Possession occur
by the Delivery Date. If Delivery of Possession does not occur by
the Delivery Date for any reason except to the extent delayed due
to an Event of Force Majeure (as defined in Section 14.9), Tenant
shall be given 2 days of Base Rent and additional charges free for
every day after the Delivery Date Delivery of Possession does not
occur. If Delivery of Possession does not occur by the Outside
Delivery Date, Tenant may terminate this Lease by notice any time
prior to Landlord's actual Delivery of Possession. Notwithstanding
the reason for late Delivery of Possession, if Delivery of
Possession occurs after October 21 of any calendar year, then
Tenant shall have the option, in Tenant's sole discretion, to
delay Delivery of Possession until February 1 of the immediately
subsequent calendar year and Delivery of Possession shall not be
deemed to occur until such date for all purposes under this Lease.
Tenant reserves any and all rights it has under this. Lease or
otherwise for Delivery of Possession occurring after the Delivery
Date (as the same may be revised pursuant to this Section 2.4.2)
whether Tenant terminates this Lease or receives the above credit.
Section 2.4.3. Condition of Premises. Landlord warrants that
upon Delivery of Possession (i) Landlord's Work shall be
substantially complete except for such portions of Landlord's Work
which cannot be completed until Tenant has completed its work
(provided
-4-
Landlord shall promptly complete such portions of Landlord's Work
as soon as reasonably possible after completion of Tenant's Work);
(ii) the HVAC system, the sprinkler system, the electrical system,
the plumbing system, all other mechanical systems of the Building
and the roof and structural components of the Building will be in
good order and condition; (iii) the Building will be weathertight,
(iv) the-Building will be free from asbestos; (v) the Premises and
to Landlord s knowledge and belief (but without limiting
Landlord's obligations under Section 7.4.3 and 8.2(e)), the Common
Facilities, will be in compliance with all Environmental Laws (as
defined in Section 7.4.3); (vi) except as expressly provided in
Section 2.4.4, all Common Facilities shown on Exhibit A will have
been substantially completed and will have been constructed in a
good and workmanlike manner, using materials of first class
quality; (vii) all construction debris, materials, equipment and
trailers shall be removed from Tenant's Protected Area; (viii) all
contingencies within Landlord's reasonable control (and not within
Tenant's reasonable control) required by governmental authorities
as a condition to Tenant obtaining permits and approvals for
Tenant's Work shall have been fulfilled; and (ix) Landlord shall
have provided Tenant with an accurate street address for the
Premises. For the purposes hereof, "substantial completion" of
Landlord's Work shall mean completion in accordance with the Final
Specifications except for Punchlist items (as defined below) which
are capable of completion within 30 days and which will not
interfere with Tenant's Work; provided, however, in no event shall
Landlord's Work be deemed substantially completed until Landlord
entirely completes construction of all items which would interfere
with the operation of Tenant's business in the Premises. Promptly
following Delivery of Possession, Tenant shall furnish to Landlord
a written statement setting forth any such uncompleted portions of
Landlord's Work (the "Punchlist"). Landlord shall diligently
complete the Punchlist items and if Landlord fails to complete the
Punchlist items within 30 days after delivery of the Punchlist to
Landlord, Tenant may complete any of such Punchlist items and if
not paid by Landlord within 30 days after notice from Tenant to
Landlord of such cost (including copies of invoices), then Tenant
may immediately set-off the reasonable third party cost and
expense of such completion, together with Interest, against all
rent and additional charges due or to become due hereunder in
accordance with Section 12.4 hereof (but without the necessity of
any further notices to Landlord which might be required under
Section 12.4).
Section 2.4.4. Landlord's Completion Work.
Notwithstanding anything contained in this Lease to the contrary,
Landlord will use its commercially reasonable efforts to complete,
or cause to be completed, the striping of all parking areas within
the Premises, all landscaping, and the performance of Item 4 on
Exhibit C ("Landlord's Completion Work") within 30 days after
Delivery of Possession (the "Completion Date"), and Landlord's
Completion Work shall not be a requirement for Delivery of
Possession. If Landlord fails to complete Landlord's Completion
Work by the Completion Date, Tenant shall be given 2 days of Base
Rent and additional charges free for every day after the
Completion Date Landlord fails to so complete Landlord's
Completion Work. If Landlord fails to complete Landlord's
Completion Work by the date Tenant desires to open for business
within the Premises ("Tenant's Opening Date"), Tenant shall be
given 3 days of Base Rent and additional charges free for every
day after Tenant's Opening Date Landlord fails to so complete
Landlord's Completion Work. Tenant shall give Landlord 30 days
prior notice of such Tenant's Opening Date which shall be no
sooner than the Completion Date.
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Section 2.4.5. Certificate of Occupancy. If a
certificate of occupancy (or its equivalent) cannot be issued
after Tenant's Work is complete due to incompleteness of or
defects in Landlord's Work or due to any other condition within
the Center within Landlord's reasonable control (and in either
event not due to the act or omission of Tenant) and Tenant is
precluded from opening for business within the remises as a
result thereof, then Tenant shall be given-2 days of Base Rent
and additional charges free for every day until Tenant is
permitted to open for business with the public within the
Premises; provided, however, that if a temporary certificate is
issued, Landlord shall procure a renewal of such temporary
certificate or permanent certificate prior to the expiration of
the temporary certificate.
Section 2.5. Landlord's Work. Prior to Delivery of
Possession, Landlord shall perform the work described in this
Section 2.5 as follows ("Landlord's Work"):
Section 2.5.1. Intentionally Omitted.
Section 2.5.2. Plans and Specifications. Landlord shall
perform the work described on Exhibit C, including the work
contemplated by the schedule of performance specifications and
preliminary plans ("Performance Specifications"). Prior to the
Final Specifications Date, Landlord will submit for Tenant's
approval detailed plans, working drawings and detailed
specifications ("Final Specifications"), which Final
Specifications shall be in conformity with the Performance
Specifications. Tenant agrees to approve or comment upon any such
submittals by Landlord within 10 days after submission thereof to
Tenant, which submission to Tenant shall expressly and
prominently state the consequences of Tenant's non-response as
set forth in this Section 2.5.2. If Tenant does not so approve or
comment upon such submittals within 10 days after submission to
Tenant together with the requisite statement in the notice, the
same shall constitute a "Tenant Delay", with the Work
Commencement Date and the Delivery Date being extended one day
for each day after the expiration of said 10-day period that
Tenant fails to so approve or comment upon such submittals.
Further, the Outside Delivery Date shall be extended one day for
each day of actual delay caused by Tenant's failure to so approve
or comment upon such submittals within said 10-day period
(Landlord hereby agreeing to use commercially reasonable efforts
to minimize any such delay). The Final Specifications shall
become a part of this Lease upon approval by Tenant. Approval of
the Final Specifications shall not be deemed to be an agreement
that they are in compliance with law nor shall such approval
impose any liability on Tenant; the party preparing the plans has
sole responsibility for compliance with all building codes and
other applicable laws and requirements. Tenant shall reasonably
cooperate with Landlord in Landlord's obtaining of governmental
approval of plans and specifications.
Section 2.5.3. Landlord's Work Schedule; Permits.
Landlord's Work will be commenced on or before the Work
Commencement Date but not before mutual approval of the Final
Specifications and receipt of all necessary permits and approvals
for Landlord's Work, which permits and approvals Landlord shall
diligently proceed to obtain. All building permits, temporary and
permanent certificates of occupancy and other governmental
approvals required to construct and to permit occupancy of the
Premises for Tenant's intended use shall be obtained by Landlord
at Landlord's expense (except for particular licenses or use
permits normally obtained by Tenant for the conduct of its
business). If Landlord does not obtain all governmental permits
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and approvals for Landlord's Work and Landlord's Completion Work
and does not commence those aspects of Landlord's Work directly
pertaining to the Premises by the Work Commencement Date for any
reason except to the extent due to an Event of Force Majeure, or
Tenant Delays (as defined in Section 2.5.2) or Tenant may
terminate this Lease by notice to Landlord any time prior to the
actual commencement of Landlord's Work. Notwithstanding anything
to the contrary contained herein, Landlord shall not be required
to commence its work hereunder unless and until the earlier to
occur of the date Landlord has received a waiver of Tenant's right
of termination contained in Section 2.6 or the date such
termination right expires in accordance with the express terms of
Section 2.6. If Tenant has not provided Landlord with a notice
indicating Tenant's decision as to such waiver by the date
Landlord is ready or about ready to commence work, Landlord shall
request such notice from Tenant.
Section 2.5.4. Performance of Work. Landlord's Work and
Landlord's Completion Work will be prosecuted to completion with
due diligence and will be done at Landlord's expense, except that
(i) promptly following receipt by Landlord of any change order
request by Tenant after approval by Tenant of the Final
Specifications or any change requested by Tenant to the
Performance Specifications after the date hereof, Landlord shall
provide Tenant, for Tenant's approval, Landlord's good faith
estimate as to the delay (if any) and the increase in cost in the
performance of Landlord's Work likely to be caused by such change
order (Tenant hereby agreeing to respond within 10 days after
receipt of Landlord's estimate), (ii) any increase in the cost to
Landlord caused solely by such approved change order made by
Tenant shall be borne by Tenant and shall be paid to Landlord on
or before 30 days after bills are rendered therefor, (iii)
provided Tenant authorizes the performance of such change order,
the Work Commencement Date, the Delivery Date and the Outside
Delivery Date shall be extended one day for each day of actual
delay in the performance of Landlord's Work reasonably incurred by
Landlord and caused by such change order (Landlord hereby agreeing
to use reasonable efforts to minimize any such delay), and (iv) to
the extent such approved change orders made by Tenant delay
Delivery of Possession in the aggregate by more than 14 days, the
75-day period set forth in Section 3.1 hereof shall be shortened
by one day for each day over said 14-day period that Delivery of
Possession is delayed on account of said change orders by Tenant
(but in no event shall such 75-day period be shortened by more
than 45 days). Landlord's Work and/or Landlord's Completion Work
shall not be commenced until after the Final Specifications for
such work have been approved, shall be performed in a good and
workmanlike manner in compliance with the Final Specifications
(other than in non-material areas, e.g. minor deviations in
measurements that have no actual effect on Tenant's use or
enjoyment of the Premises) with only such subsequent modifications
as may be approved by Tenant, and shall be in compliance with all
building codes and other applicable laws and regulations of
governmental authorities or boards of fire insurance underwriters
or the like. Landlord shall keep the Premises and the Common
Facilities free of liens as provided in Section 6.4.
Section 2.5.5. Tenant's Inspection. Tenant may enter the
Premises to inspect the progress of Landlord's Work and to
determine if the work is being performed in accordance with the
requirements of the Lease without being deemed to have taken
possession or having obligated itself to pay Base Rent, additional
charges or other charges, provided, however, that Tenant agrees
that it shall not unreasonably interfere with Landlord's Work.
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Section 2.5.6. Landlord's Guarantee of Construction.
Landlord agrees to correct any defects in Landlord's Work and/or
Landlord's Completion Work provided Tenant gives notice of such
defects to Landlord prior to the first anniversary of the
Commencement Date. This time limitation shall not apply to latent
defects in Landlord's Work and/or Landlord's Completion. Work
which Tenant could not reasonably have discovered prior to the
expiration of such time period. Landlord shall maintain on file
warranties and guaranties pertaining to contractors' work and the
mechanical systems of the Premises. To the extent assignable,
Landlord shall assign all guaranties and warranties to Tenant
which relate to equipment and other portions of the Premises
Tenant is to maintain.
Section 2.6. Tenant's Work. Tenant shall have the right to
perform the work to be done by Tenant to ready the Premises for
Tenant's business ("Tenant's Work"), including without limitation
the installation of fixtures and other equipment, erection of
building signs and installation of pylon/monument sign panels as
described on Exhibit E, and stocking of merchandise and supplies
(Landlord hereby consenting to all of the foregoing). Tenant shall
use reasonable efforts to obtain the permits for Tenant's signage
and elevations depicted on Exhibit E (Tenant hereby agreeing that
all submissions to the permitting authority shall be in accordance
with applicable code except to the extent shown on Exhibit E).
Landlord shall have the right, upon notice to Tenant, to obtain
Tenant's such signage and elevation permits to Tenant's reasonable
satisfaction. If, for any reason other than Tenant's failure to
use reasonable efforts
Section 2.7. Construction Representatives. Each
party authorizes the other to rely in connection with
plans and construction upon approval and other actions
on the party's behalf by its respective Construction
Representative or any other or additional persons
hereafter designated.
Section 2.8. Adjustment of Areas. The square
footage of the Building and the Center may be
remeasured by Landlord or Tenant from time to time and
Base Rent, additional charges, Tenant's Share and
Tenant's Tax Share shall be adjusted accordingly.
Remeasurements shall be calculated from the exterior
face of exterior walls and from the centerline of party
or partition walls. References in this Section 2.8 to
"leaseable square footage" shall be construed to
include interior square footage that is owned and used
by owners as well as area that is leased and used by
tenants. Tenant's Share shall be the fraction, the
numerator of which is the leaseable area of
the Building and the denominator of which is the
leaseable area of the Center, including outdoor sales
areas. Tenant's Tax Share shall be the fraction, the
numerator of which is the square footage of land within
the Premises and the denominator of which is square
footage of all land located on the separately assessed
tax parcel containing the Premises. Notwithstanding the
foregoing, in no event shall-the yearly Base-Rent,
Tenant's Share or Tenant's Tax Share (except as set
forth in the next sentence) be based on square footage
within the Building greater than as set forth in Section
2.2 hereof or on square footage within Phase I of the
Center less than 90% of that shown on Exhibit A. In the
event any tenant or owner occupying a building located
within the Center performs its own Common Facilities
maintenance or obtains the casualty insurance on its own
building, the leaseable area contained in such building
shall be excluded from the denominator of Tenant's Share
for the purposes of calculating the applicable additional
rent hereunder, so long as no charges associated with
said building (or the Common Facilities surrounding same)
are included in the Common Facilities Costs or Landlord's
Premiums to be contributed to by Tenant hereunder.
Article III. Term
Section 3.1. Commencement Date; Term. The Term shall
begin (the "Commencement Date") on the earlier to occur
of (i) the date Tenant opens for business with the public
within the Premises, or (ii) the 75th day following the
later of Delivery of Possession or Tenant's receipt of
all building and signage permits (but in no event shall
the Commencement Date be deemed to have occurred later
than 180 days after Delivery of Possession). The Term
shall end on the last day of the Initial Term, unless the
Term is extended or earlier terminated. Upon commencement
of the Term, the parties will execute a Commencement Date
Agreement in substantially the form of Schedule "1".
Section 3.2. Options. Provided the Lease is in full
force and effect and Tenant is not then in material
default of this Lease (after the expiration of all notice
and cure periods) and Landlord is then actively pursuing
a remedy on account of such default, Tenant may extend
the Term for the Extended Term(s) by giving Landlord
notice of its election to do so no less than 9 months
prior to the beginning of such Extended Term. If Tenant
fails to give notice by such date, Tenant's time to give
notice of its election shall continue until the date
which is 60 days after Landlord notifies Tenant that
Tenant has failed to make such election. If Landlord does
not give such notice to Tenant on or before the 90th day
before the then effective expiration date of the Term,
the Term will extend automatically past such expiration
date to the date 90 days after the earlier of (a)
Landlord's notice to Tenant of Tenant's failure to
exercise its option (subject to Tenant's right within
such 60-day period to extend the Term), or (b) Tenant's
notice to Landlord that it will not exercise its option
to extend the Term.
Section 3.3. Lease Years. The first Lease Year shall
be the period of approximately 12 months from the
Commencement Date through the last day of the calendar
month in which the anniversary of the Commencement Date
occurs. Subsequent Lease Years shall be periods of 12
months each.
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Article IV. Rent and Additional Charges
Section 4.1. Base Rent. Tenant shall pay Base Rent
during the Term in accordance with the Base Rent schedule
set forth in Article I and such Base Rent shall be paid
in equal monthly installments, in advance, on or before
the first day of each month of the Term. Base Rent
shall be pro rated for any Lease Year that is not 12
months long based on the number of actual days elapsed
and a 365 day year.
Section 4.2. Taxes. Landlord shall pay all taxes
levied or assessed against those portions of the Center
owned by Landlord (other than the Premises to the extent
the Premises are separately assessed) before such taxes
become delinquent.
Section 4.2.1. Tenant's Tax Payments.
Commencing on the Commencement Date, as an additional
charge, Tenant shall pay to Landlord the Tenant's Tax
Share of Property Taxes for each tax year of the Term
("Tenant's Tax Payment"); provided, however, that if the
Premises is in and of itself a separately tax parcel,
Tenant's Tax Share shall be 100% and Tenant shall make
Tenant's Tax Payment directly to the assessing authority.
Property Taxes shall be pro rated for any partial tax
year within the Term based on the actual number of days
elapsed. Promptly after receipt of a Property Tax xxxx,
Landlord shall provide Tenant with a statement (a "Tax
Statement") consisting of (a) a copy of such xxxx
indicating the prior payment was made, together with
reasonable evidence of the property to which it relates,
(b) a computation of Tenant's Tax Share of such Property
Taxes, (c) the manner in which Tenant's Tax Share was
calculated (including a statement of the square footage
of all land in the separately assessed tax parcel
containing the Premise's), and (d) a statement of whether
Landlord will contest such Property Taxes. Tenant shall
pay Tenant's Tax Payment by the later to occur of 30 days
after receipt of the Tax Statement or 30 days prior to
when such Center Tax is deemed delinquent by the
assessing authority; however, Tenant will not be
responsible for any portion of Property Taxes for which
Landlord has not presented Tenant with a Tax Statement
within one year after such Center Taxes were due.
Section 4.2.2. Definition of Property Taxes. "
Property Taxes" means the real estate taxes levied on the
separately assessed tax parcel containing the Premises.
In the event (and only in the event) the Premises are not
in and of itself a separately assessed tax parcel,
Property Taxes shall (a) exclude (i) assessments and
taxes based on the assessed valuation of land not
improved with commercial buildings or Common Facilities,
and (ii) any interest or penalty charges payable by
Landlord with respect to any such taxes so long as Tenant
made Tenant's Tax Payment within the time periods
contained in Section 4.2.1 hereof, and (b) reflect any
discount available to Landlord by prompt payment of such
tax regardless of whether such prompt payment is actually
made but only so long as Tenant made Tenant's Tax Payment
to Landlord within the applicable discount period.
Property Taxes shall also include any tax, excise,
surcharge or assessment hereafter levied by any
governmental taxing authority upon or against the rents
payable hereunder by Tenant in lieu of any Property
Taxes. Notwithstanding the foregoing, Tenant shall have
no obligation to pay any income taxes, sales taxes,
excess profit taxes, franchise, capital stock,
inheritance or estate taxes, license fees, inspection
fees or permit fees levied against Landlord. Landlord's
reasonable costs incurred in protesting or contesting
Center Taxes, including without limitation, the
reasonable fees and expenses of Landlord's attorneys,
accountants and appraisers, shall be included within the
definition of "Center Taxes", provided that the amount of
such costs included within Center Taxes shall not exceed
the amount of the refund or savings achieved through such
contest.
Section Reductions. If Landlord receives a reduction of
any Property Taxes included in Tenant's Tax Payment,
within 30 days Landlord shall pay Tenant's Tax Share of
such reduction, after deduction of Landlord's reasonable
out-of-pocket costs, if any, of obtaining such reduction,
to Tenant. If after request by Tenant, Landlord does not
contest any Property Tax, Tenant may contest such
Property Tax in its own or in Landlord's name. Landlord
agrees to provide Tenant with all reasonable assistance
in such contest, including joining in and signing
pleadings. Any reduction of Property Taxes obtained shall
be paid to Landlord after payment of reasonable out-of-
pocket costs and reimbursement of Tenant's Tax Share of
such Property Tax reduction to the extent already paid to
Landlord.
Section 4.3. Insurance Contribution. Landlord shall pay all
premiums for the insurance required to be maintained by
Landlord under Section 7.1 ("Landlord's Premiums").
Commencing on the Commencement Date, Tenant shall reimburse
Landlord for Tenant's Share of Landlord's Premiums incurred
with respect to the insurance to be maintained under Section
7.1.1 hereof and 100 of Landlord's Premiums incurred with
respect to the insurance to be maintained under Section
7.1.2 hereof, within 30 days after receipt of a statement,
in a form reasonably satisfactory to Tenant, consisting of
(i) a copy of the premium xxxx indicating the applicable
policy and coverage, and (ii) a statement of Tenant's Share
of such Landlord's Premium, and the manner in which Tenant's
Share was calculated. Landlord's Premiums shall be limited
to reasonable and competitive amounts actually paid by
Landlord, and shall be pro rated for any partial calendar
year within the Term based on the actual number of days
elapsed. Tenant will not be responsible for any portion of
Landlord's Premiums for which Landlord has not presented
Tenant with a statement within one year after the applicable
calendar year.
Section 4.4. Common Facilities Costs.
Section 4.4.1. Tenant's Obligation. Commencing on the Commencement Date, as
an additional charge, Tenant shall reimburse Landlord for Tenant's Share of
the Common Facilities Costs for each calendar year. The Common Facilities
Costs shall be pro rated for any partial year during the Term based on the
actual number of days elapsed.
Section 4.4.2. Definition of Common Facilities Costs. "Common Facilities
Costs" means the charges assessed against Landlord pursuant to Setif of the
Lowe's CCRs (as defined in Section 13.6 hereof), including (or plus if not
assessed under the Lowe's CCRs) costs incurred in connection with the storm
water drainage from Lot 2 into the off-site pond located west of Lowe's.
Section 4.4.3. Payment of Common Facilities Costs. Promptly after receipt
of a Common Facilities Costs xxxx pursuant to the Lowe's CCRs, Landlord
shall provide Tenant with a statement (a "CFC Statement") consisting of
(a) a copy of such xxxx and any supporting documentation received by
Landlord in connection therewith, (b) a computation of Tenant's Share of
such Common Facilities Costs, and (c) the manner in which Tenant's Share
was calculated. Tenant shall pay Tenant's Share of the Common Facilities
Costs included in the CFC Statement within 30 days after receipt of the
CFC Statement; however, Tenant will not be responsible for any portion of
Common Facilities Costs for which Landlord has not presented Tenant with
a CFC Statement within one year after such Common Facilities Costs xxxx was
received by Landlord.
Section 4.4.4. Records; Audit Right. Tenant shall have all rights granted to
Landlord, if any, to audit any Common Facilities Costs xxxx for which Tenant
shall be obligated to pay Tenant's Share hereunder.
Section 4.5. Shared Driveway Costs.
Section 4.5.1. Tenant's Obligation. Commencing on the Commencement Date, as
an additional charge, Tenant shall reimburse Landlord for 50% of the Shared
Driveway Costs for each calendar year. The Shared Driveway Costs shall be
pro rated for any partial year during the Term based on the actual number
of days elapsed.
Section 4.5.2. Definition of Shared Driveway Costs. "Shared Driveway Costs"
means the actual costs incurred by Landlord (or a third party) in the
maintenance, repair and replacement of the Shared Driveway identified on
Exhibit A. In the event Shared Driveway Costs incurred during the final 7
years of the Term (as extended) includes a capital expenditure (as defined
under GAAP) of any nature, Landlord shall reimburse Tenant for the
unamortized portion of all such capital expenditures at the end of the
Term (amortized on a straight-line basis over the useful life of the item
in accordance with GAAP). Such payment shall be made by Landlord no later
than 30 days before the end of the Term and in no event shall the end of
the Tenn be deemed to have occurred until such payment has been made
(but all Base Rent and additional charges due hereunder and all obligations
of Tenant hereunder shall fully xxxxx from the original effective end of
the Term until such payment is received by Tenant).
Section 4.5.3. Payment of Shared Driveway Costs. Landlord shall provide
Tenant with a statement (a "SDC Statement") consisting of (a) a copy of
such xxxx and any supporting documentation received by Landlord in
connection therewith, and (b) a computation of Tenant's owed portion of
such Shared Driveway Costs. Tenant shall pay Tenant's owed portion of the
Shared Driveway Costs included in the SDC Statement within 30 days after
receipt of the SDC Statement; however, Tenant will not be responsible for
any portion of Shared Driveway Costs for which Landlord has not presented
Tenant with a SDC Statement within one year after such Shared Driveway
Costs xxxx was received by Landlord.
Section 4.5.4. Records; Audit Right. Tenant shall have all rights granted to
Landlord, if any, to audit any Shared Driveway Costs xxxx for which Tenant
shall be obligated to pay any portion hereunder.
Section 4.6. Payments. Payments shall be made to Landlord at Landlord's
Address until Tenant is otherwise notified by Landlord. Tenant shall be
fully protected in acting upon any notice changing the payee and purporting
to be signed by or on behalf of Landlord and believed by Tenant in good
faith to be genuine. After one year from the issuance by Landlord of any
xxxx
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or statement of charges to be paid by Tenant, whether for Base Rent,
additional charge or otherwise, Landlord shall not increase the amount
covered by such xxxx or statement. No payment by Tenant of any lesser
amount than the amount stipulated to be paid hereunder, without a claim of
setoff or abatement, shall be deemed other than on account of the earliest
stipulated Base Rent or additional charges; nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction,
and Landlord may accept any check or payment without prejudice to
Landlord's right to recover the balance due or to pursue any other remedy
available to Landlord.
Article V. Use
Section 5.1. Permitted Use. The Premises may be used for the sale and leasing
of equipment (including computers and telecommunications equipment), furniture
or supplies for business or office (including home office) use, and the
provision of business or office services (including copying, printing,
telecommunications, packing, shipping and business equipment repair services),
for uses ancillary thereto, and for any other legal retail purpose not in
violation of Article III of the Lowe's CCRs and not listed in Section 5.2.2
or 5.2.3 hereof, or for no use or purpose. In the event the use of the
Premises changes from the sale and leasing of equipment, furniture or
supplies for business or office use, and/or the provision of business or
office services as aforesaid, Tenant agrees that Tenant's primary use as
changed shall not violate (i) any exclusive use right listed in Exhibit F
if such Tenant change in use occurs within the first 2 Lease Years of the
Term, (ii) any exclusive use right listed in Exhibit F which is then in
effect and enforceable (if such change in use occurs after the
first 2 Lease Years of the Term), or (iii) any future exclusive use right
granted by Landlord to a tenant occupying 25,000 square feet or more within
the Center, which exclusive use right is then in .effect and of which Tenant
has received notice.
Section 5.2. Exclusive, Prohibited and Restricted Uses. Subject to
Section 5.3 herein, Landlord covenants that, other than the Premises:
Section 5.2.1. Exclusive Use. No part of the Center shall be used for the
sale, leasing or distribution of equipment (including computers and
telecommunications equipment), furniture or supplies for business or office
(including home office) use, or the provision of business or office services
(including copying, printing, telecommunications, packing, shipping and
business equipment repair services) (collectively, the "Exclusive Goods
and Services") and no property located within one mile of the Center owned
by Landlord or by an entity under common control with Landlord shall be
used for the operation of a so-called "office supply superstore" as such
retailing concept is generally defined and acknowledged within, the retail
industry; provided, however, that (i) if Tenant changes its use of the
remises from the sale and leasing of equipment, furniture or supplies
for business or office use, and/or the provision of business or office
services as aforesaid, or during any period of time that there is no
business being operated from within the Premises, the aforesaid
restriction on property located outside of the Center shall be limited
to property located adjacent to the Center; (ii) if Tenant changes its
use of the Premises from the sale and leasing of equipment, furniture or
supplies for business or office use, and/or the provision of business or
office services as aforesaid, Tenant agrees to waive the aforesaid
exclusivity right so long as Landlord grants to Tenant, to Tenant's
reasonable satisfaction, an exclusivity right for Tenant's new primary use
of the Premises (which new
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exclusivity right shall thereafter be deemed the Exclusive
Goods and Services for all purposes under this Lease); and
(iii) in the case of any successor-in-interest to the
original Landlord hereunder and/or as to any retail space
outside of the Center purchased by Landlord after the date
hereof, such restriction shall not apply to leases then
existing with respect to such property located outside of
the Center as of the date such successor Landlord acquires
the Center or as of the date Landlord acquires such other
retail space (as the case may be), but shall apply to any
leases subsequently entered into. Landlord shall not
advertise any other providers of the Exclusive Goods and
Services within the Center or on any Center-specific
internet web site, nor shall Landlord provide the general
public with direct internet access (via link or otherwise)
to any such other providers of the Exclusive Goods and
Services; and
Section 5.2.2. Prohibited Uses. No part of the
Center shall be used for any of the following: (i) bowling
alley, skating rink, miniature golf or other sports or
recreational facility; (ii) school, library, reading room,
or house of worship; (iii) movie theatre, auditorium,
meeting hall, hotel or motor inn, or any residential use
facility; (iv) massage parlor, tattoo parlor, adult
bookstore, adult entertainment facility, a so-called "head"
shop, off-track betting, gambling, gaming or check cashing
facility; (v) automobile body shop, or automobile,
motorcycle, boat, trailer or truck leasing, rental or
sales; (vi) tavern or bar (unless operated incidental to,
in conjunction with, and under the same name as, a
restaurant permitted hereunder), amusement park, carnival,
banquet facility, dance hall, disco, nightclub, video game,
virtual reality or laser tag room or facility, pool hall,
arcade, indoor children's recreational facility or other
amusement or entertainment facility (unless operated
incidental to, in conjunction with, and under the same name
as, a restaurant permitted hereunder); (vii) any
manufacturing, warehouse or office use (except incidental
to a retail operation and except office use shall be
permitted so long as the same is not located within 200
feet of the Building); (viii) funeral parlor, animal
raising or storage (except incidental to a full-line retail
pet supply operation), pawn shop, flea market or swap meet,
junk yard; (ix) drilling for and/or removal of subsurface
substances, dumping, disposal, incineration or reduction of
garbage or refuse, other than in enclosed receptacles
intended for such purposes; (x) any facility related to the
occult sciences, such as palm readers, astrologers, fortune
tellers, tea leaf readers or prophets, frozen food locker
or sales facility, milk distribution center, medical,
dental or hospital related center or offices (except that
medical and dental offices shall be permitted so long as
the same is not located within 200 feet of the Building),
nursing home, old age center, or governmental facility
(other than a post office), recruiting center or employment
center; or (xi) any use which constitutes a public or
private nuisance or produces unreasonable noise or
vibration; and
Section 5.2.3. Restricted Uses. No part of Lot 3
shall be used for any of the following uses: (i) tanning,
health, exercise or racquet club or spa, gymnasium, bowling
alley, skating rink, miniature golf or other sports or
recreational facility; (ii) school, library, reading room,
or house of worship; (iii) movie theatre, auditorium,
meeting hall, hotel or motor inn, or any residential use or
day-care facility; (iv) massage parlor, tattoo parlor,
adult bookstore, adult entertainment facility, a so-called
"head" shop, off-track betting, gambling, gaming or check
cashing facility; (v) laundromat, car wash, automobile
repair work or automotive service or gas station, tire
store, automobile body shop, or automobile, motorcycle,
boat, trailer or truck leasing, rental or sales; (vi)
restaurant (except, after the expiration of the 20th Lease
Year hereunder, a fast food or fast casual restaurant
without liquor sales will be permitted), tavern or bar,
amusement
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park, carnival, banquet facility, dance hall, disco,
nightclub, video game, virtual reality or laser tag room or
facility, pool hall, arcade, indoor children's recreational
facility or other amusement or entertainment facility;
(vii) any manufacturing, warehouse or office use (except
incidental to a retail operation and except that typical
storefront office uses (such as banks, insurance companies,
brokerage offices, tax consultants aid travel agencies)
shall be permitted)-(viii) funeral parlor, animal raising
or storage (except incidental to a full-line retail pet
supply operation), pawn shop, flea market or swap meet,
junk yard; (ix) drilling for and/or removal of subsurface
substances, dumping, disposal, incineration or reduction of
garbage or refuse, other than in enclosed receptacles
intended for such purposes; (x) any facility related to the
occult sciences, such as palm readers, astrologers, fortune
tellers, tea leaf readers or prophets, frozen food locker
or sales facility, milk distribution center, medical,
dental or hospital related center or offices, nursing home,
old age center, or governmental facility (other than a post
office), recruiting center or employment center; or (xi)
any use which constitutes a public or private nuisance or
produces unreasonable noise or vibration.
Section 5.3. Covenants in General. The covenants set
forth in Section 5.2 shall run with the land comprising the
Center. In the event of a breach of any such covenants
which is not cured by Landlord within 30 days after notice,
Tenant shall be entitled to injunctive relief and any other
appropriate remedy. Notwithstanding the foregoing, Section
5.2 shall not prohibit any occupant or tenant under a lease
existing on the date of this Lease (or to the bank to be
located on Lot 3 so long as the lease to such bank remains
in full force and effect (even though such bank lease may
not be executed as of the date hereof)) from using space
occupied by it for any use permitted under such tenant's
lease as of the date hereof, nor prohibit any future tenant
or an occupant from selling and/or leasing the Exclusive
Good and Services incidental to such tenant's primary
business in no more than an aggregate of the lesser of
3,000 square feet of space or 10% of such tenant's sales
floor area. Further, Section 5.2.1 shall not preclude (i)
the operation of a so-called consumer electronics store
(such as Best Buy or Circuit City) or computer superstore,
either of which sells computers and computer related
accessories (so long as the aforesaid 3,000 s.f./10%
restriction is not violated in any respect other than in
connection with computers and computer related
accessories), (ii) the operation of one cellular phone
store located at least 100 feet from the Premises, (iii)
the operation of a furniture store so long as not more than
10% of the sales floor area is devoted to the sale of
office furniture, or (iv) the operation of a Radio Shack,
and Section 5.2.1 shall not apply to Lot 1 or to Lot 3 (but
only so long as the lease to AMCORE remains in full force
and effect).
Section 5.4. Recapture. If Tenant ceases to operate a
business on the Premises for more than 8 consecutive months
(excluding any period the Premises are not being operated
due to casualty, alterations, renovation or repairs),
Landlord shall have the right to terminate this Lease and
recapture the Premises. Within 60 days after the expiration
of such 8 month period, Landlord may exercise its right of
termination by giving Tenant notice thereof 90 days prior
to the effective date of termination. If Landlord does not
exercise the aforesaid termination right, and Tenant
continues to not operate a business within the. Premises
for one or more additional 12 consecutive month periods,
Landlord again shall have 60 days to exercise such right of
termination after the expiration of each such 12 month
period. Upon such termination, all further obligations of
the parties shall cease, except for those accrued as of the
termination date and except that Landlord (or any entity
under common control with Landlord) shall not, for 1 year
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after termination of this Lease pursuant to this Section
5.4, lease any space within the Center for the purposes of
the operation of a so-called "office supply superstore" as
such retailing concept is generally acknowledged and
defined within the retail industry. Notwithstanding the
foregoing, if Tenant in good faith commences operation of
business in the Premises prior to the effective date or
termination Specified in Landlord's notice, such notice
and Landlord's election to terminate, shall be null and
void and this Lease shall continue. The provisions of this
Section 5.4 shall survive any termination of this Lease by
Landlord pursuant to this Section 5.4.
Section 5.4.1. Termination Payment. If this Lease
is terminated pursuant to this Section 5.4, Landlord shall
pay to Tenant the unamortized cost to Tenant of leasehold
improvements paid for by Tenant and installed in, or made
to, the Premises from time to time (but not including
Tenant's fixtures and equipment). Such payment shall be
made by Landlord within 30 days after Tenant has informed
Landlord of such amount and in no event shall the effective
date of termination of this Lease be deemed to have
occurred until such payment has been made (but all Base
Rent and additional charges due hereunder shall fully xxxxx
from the original effective date of termination until such
payment is received by Tenant).
Section 5.5. Obligation to Open. Subject to the
provisions of Section 14.19 and an Event(s) of Force
Majeure, within 180 days after Delivery of Possession,
Tenant agrees to fixture, stock and open for business
within the Premises for one day as a "Staples The Office
Superstore" or such other trade name then being used for
the majority of Tenant's stores operating within a 300 mile
radius of the Premises.
Article VI. Alterations; Signs
Section 6.1. Compliance with Law. Landlord shall at
its expense from time to time make any alterations,
improvements or additions to the Premises, Building and
Common Facilities that may be required on account of any
existing or future laws or regulations (other than non
structural, interior alterations, improvements or additions
to the Building solely required by the specific nature of
Tenant's business or if due solely to improvements
constructed by Tenant at its sole cost which shall be
Tenant's obligation to perform). Except as expressly made
Landlord's obligation herein, Tenant agrees to use the
Premises in compliance with all applicable laws and
regulations.
Section 62. Tenant's Alterations. Tenant may, at its
expense, make any alterations or improvements, including
relocation of Tenant's exterior doors, loading dock and
signage but excluding any other exterior or structural
changes, to the Building and related portions of the
Building which it may deem necessary or desirable
("improvements"). All such other exterior and structural
changes shall require Landlord's consent thereto. All
improvements by Tenant shall be done in a good and
workmanlike manner and in compliance with all applicable
laws. Subject to the provisions of Section 6.5 herein,
Tenant shall not be required to, but may, remove any such
improvements at any time before the expiration of the Term,
or within 30 days following the sooner termination of this
Lease, provided that Tenant shall not remove any structural
improvement and Tenant shall repair any damage caused by
such removal.
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Section 6.2.1. Satellite Antennae. Tenant shall
have the right to install and maintain satellite antennae
and/or other data communications devices and related wiring
in or upon the Building in accordance with the Performance
Specifications and in accordance with Landlord's roof
warranty and proper roofing standards. Any relocation or
replacement (with equipment of materially greater size) of
such satellite antennae and/or communications devices-shall
require Landlord's prior consent thereto. Tenant shall
remove any satellite antennae and/or communication devices'
so installed before the expiration of the Term or within 30
days following the sooner termination of this Lease and
Tenant shall repair all damage caused by such removal.
Tenant shall (i) obtain all permits and approvals necessary
to install the satellite antennae and/or data communications
devices from the applicable governmental authorities, (ii)
install, operate and maintain the same in accordance with
all applicable laws and regulations, and (iii) pay all costs
(including taxes, fees and utility charges) in connection
with such permits and approvals and the installation,
operation and maintenance of such antennae and/or devices.
Tenant shall defend, indemnify and save harmless Landlord,
its agents and employees, from and against all costs for
property damage arising solely out of Tenant's installation
and/or maintenance of satellite antennae and/or devices on
the roof of the Building.
Section 6.3. Tenant's Permits. Landlord agrees to
cooperate fully with Tenant in obtaining any permits,
applications or licenses which may be necessary in
connection with any construction, alterations,
improvements, repairs, signage, utilities or other work
permitted under this Lease to be performed by Tenant.
Section 6.4. Liens. Tenant shall keep the Premises
free from any mechanics' or materialmen's liens for labor
or materials furnished Tenant; provided that Tenant shall
have 30 days after notice of any such lien to remove such
lien by bonding or other manner reasonably acceptable to
Landlord or its lender to provide adequate security against
such lien. Landlord shall keep the Premises and the Common
Facilities free from any mechanics' or materialmen's liens
for labor or materials furnished Landlord; provided that
Landlord shall have 30 days after notice of any such lien
to remove such lien by bonding or other manner or to
otherwise provide Tenant adequate security against such
lien.
Section 6.5. Trade Fixtures. Any trade fixtures,
equipment, signs or other personal property however
attached to or incorporated in the Premises or the Center
installed by Tenant shall remain its property, and Tenant
shall have the obligation to remove such property at any
time before the expiration of the Term or within 30 days
following the earlier termination of this Lease, provided
Tenant shall repair any damage caused by such removal.
Section 6.6. Compactors and Dumpsters. Tenant shall
have the right to place compactors and dumpsters at the
location shown on Exhibit A, subject to applicable law.
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Section 6.7. Signage.
Section 6.7.1. Initial Signage. Landlord warrants
and agrees that Tenant shall have the right to install and,
subject to future changes in municipal laws (but not
limiting Tenant's rights under Article XI here of), utilize
throughout the Tenn the initial-
signs described on Exhibit E; provided, however, that it is
understood that the signage described in clauses (iii) and
(iv) of Exhibit E-1 are hereby approved by Landlord but
Tenant's failure to obtain permits for such signage shall
not entitle Tenant to terminate this Lease pursuant to
Section 2.6 nor be deemed a default hereunder by Landlord.
Landlord also agrees that Tenant may display on or about
the Building professionally prepared temporary signs or
banners, to be supplied by Tenant.
Section 6.7.2. Future Signage. In addition to the
signage granted Tenant pursuant to Section 6.7.1 above,
Tenant may install such other Building signage as may be
allowed by law or variance and the CCRs, and Landlord
hereby consents to all such signs. In addition, subject to
the CCRs, in the event any future sign in the Center, other
than the signs on the individual store facades, bears any
name other than that of the Center as a whole, Tenant shall
have the right (i) if only names of tenants are on such
sign, to place its name and the names of its licensees, if
any, thereon, or (ii) if any tenant is permitted a panel on
such sign, to place a panel thereon, and in either event
such name or panel shall be in a space of prominence on
such sign commensurate with the size of the Premises
compared with the size of the premises of the other tenants
allowed names or panels on such sign and with lettering
commensurate with the size of the premises of the other
tenants allowed names or panels on such sign.
Section 6.7.3. Initial Pylon Signage. Tenant shall reimburse
Landlord for Tenant's proportionate share (based on the
relative size of the tenant panels permitted on such
sign(s)) of the reasonable costs incurred by Landlord to
design, obtain permits for and install (including tenant
identification panels which shall be supplied by the
individual tenants) the pylon sign(s) described on Exhibit X-
0, such reimbursement by Tenant not to exceed $7,500.00 in
total. Payment by Tenant pursuant to this Section 6.7.3
shall be made within 30 days after the later to occur of the
Commencement Date or Tenant's receipt of an invoice therefor
together with reasonable evidence of the amounts expended
Article
VII. Insurance Section 7.1.
Landlord's Insurance.
Section 7.1.1. Liability Insurance. At all times
prior to the commencement of Landlord's Work and at all
times during the Term, Landlord shall maintain commercial
general liability (commonly referred to as "CGL") insurance
covering (i) Landlord's liability with respect to any
construction that Landlord may perform in connection with
the Premises; (ii) Landlord's liability for ownership,
maintenance and use of the Premises; and (iii) its
contractual liability under Section 7.4.1 of this Lease.
Such insurance shall provide limits of not less than
$1,000,000 combined single limit coverage. Landlord shall
also maintain umbrella coverage in the amount of at least
$5,000,000.
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Section 7.1.2. Property Insurance. Landlord shall
maintain Special Form property insurance (sometimes
referred to as "Special. Extended Coverage" and formerly
known as "all-risks") property insurance covering the
Premises and the Building against loss or damage resulting
from fire and other insurable loss. Such insurance shall be
on a 100% replacement cost
adjusted at least annually to account for increases in
the replacement cost
Section 7.2. Tenant's Insurance.
Section 7.2.1. Liability Insurance. After
Delivery of Possession and during the Term, Tenant shall
maintain commercial general liability insurance covering
(i) Tenant's and Landlord's liability with respect to any
construction performed in connection with the Premises;
(ii) Tenant's liability for occupation and use of the
Premises; and (iii) Tenant's contractual liability under
Section 7.4.2 of this Lease. Such insurance shall provide
limits of not less than $1,000,000 combined single limit
coverage. Tenant shall also maintain umbrella coverage in
the amount of at least $5,000,000.
Section 7.2.2. Sole Risk of Tenant. Tenant hereby
agrees that Tenant's trade fixtures, equipment, inventory
and other personal property located on the Premises shall
be maintained at Tenant's sole risk and under no
circumstances which Tenant could have obtained property
insurance therefor under a typical all-risk policy shall
Landlord be liable to Tenant for damage to same.
Section 7.2.3. Self-Insurance. As an alternative
to maintaining the insurance required herein and for so
long as Tenant has not filed for protection under federal
or state bankruptcy laws, Tenant may elect to self-insure
for all or any portion of the required coverage pursuant to
a commercially reasonable self-insurance program provided
that Tenant maintains a net worth equal to at least
$200,000,000.00 determined in accordance with GAAP.
Section 7.3. General Requirements.
Section 7.3.1. Provisions of Policies. Landlord
and Tenant shall use reasonable efforts to maintain
insurance policies (a) on an occurrence basis, (b)
providing primary coverage and not calling upon any other
insurance procured by other parties for defense, payment or
contribution, (c) containing endorsements requiring 30
days' advance written notice to named insureds of any
cancellation or reduction in coverage, and (d) written by
responsible insurance companies licensed to do business in
the state in which the Premises are located and having a
rating by A.M. Best of no less than A-/VIII. Any such
policy may be a so-called blanket policy covering
additional locations. Prior to Delivery of Possession of
the Premises, and at least 15 days prior to the expiration
of any existing policy, Landlord and Tenant will provide
the other with certificates of required insurance. All
policies which affect the Premises shall name Tenant and
Landlord, in the case of property policies, as insured
parties as their interest may appear, or in the case of
liability policies, as additional insureds but not as loss
payees thereunder. In the event of any casualty, all
property insurance proceeds shall be made available for
restoration purposes to the extent restoration is required
pursuant to Article X hereof.
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Section 7.3.2. Release; Waiver of Subrogation.
Landlord and Tenant each hereby release each other from
liability for damage to the property of the other to the
extent of the greater of insurance maintained or required to
be maintained hereunder. Landlord and Tenant shall use
reasonable efforts to obtain waivers of subrogation rights
by the insurer against -Landlord or Tenant, as the case may
be, in all property insurance policies affecting any portion
of the Center in which Landlord or Tenant is not an insured
party.
Section 7.3.3. Increases in Insurance. No more
often than once every 3 years during the Term, Landlord and
Tenant may require the other to raise its insurance limits
to reasonable levels that are customarily carried by
landlords and tenants operating comparable properties in
the state in which the Center is located.
Section 7.4. Indemnity.
Section 7.4.1. Landlord's Indemnity. Except as
provided in Section 7.3.2 or Section 7.4.3, Landlord shall
defend, indemnify and save harmless Tenant and its agents
and employees against all costs, damages or claims, whether
for personal injury, bodily injury or property' damage, (i)
occurring on the Premises prior to Delivery of Possession
(except if caused by any act or omission of Tenant, its
agents or employees); (ii) occurring on the Premises after
Delivery of Possession or during the Term if caused by any
act or omission by Landlord or its agents or employees;
(iii) arising out of any default by Landlord hereunder; or
(iv) occurring in the Center, but outside the Premises
(except if caused by act or omission of Tenant, its agents
or employees in the Common Facilities). Landlord shall, at
its own expense, defend (or cause to be defended by the
responsible party under the CCRs) all actions brought
against Tenant, its agents or employees for which Landlord
is responsible for indemnification hereunder, and if
Landlord fails to do so, Tenant (at its option, but without
being obligated to do so) may, at the cost and expense of
Landlord and upon notice to Landlord, defend such actions,
and Landlord shall pay and discharge any and all judgments
that arise therefrom. The provisions of this Section 7.4.1
shall survive the expiration or earlier termination of this
Lease.
Section 7.4.2. Tenant's Indemnity. Except as
provided in Section 7.3.2 or Section 7.4.3, Tenant shall
defend, indemnify and save harmless Landlord and its agents
and employees against all costs, damages or claims, whether
for personal injury, bodily injury or property damage, (i)
occurring on the Premises after Delivery of Possession or
during the Term (except if caused by any act or omission of
Landlord or its agents or employees); (ii) arising out of
any default by Tenant hereunder; or (iii) arising out of
any act or omission of Tenant, its agents or employees in
the Common Facilities. Tenant shall, at its own expense,
defend all actions brought against Landlord and its agents
and employees for which Tenant is responsible for
indemnification hereunder, and if Tenant fails to do so,
Landlord (at its option, but without being obligated to do
so) may, at the expense of Tenant and upon notice to
Tenant, defend such actions and Tenant shall pay and
discharge any and all judgments that arise therefrom. The
provisions of this Section 7.4.2 shall survive the
expiration or earlier termination of this Lease.
Section 7.4.3. Environmental Indemnities.
Landlord shall defend, indemnify and save harmless Tenant
and its agents and employees against all loss, liability or
expense relating to personal, property or economic injury
(including any costs incurred by Tenant in Landlord's or
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Tenant's name in connection with the correction of any
violation of Environmental Laws if Tenant is required by
law to perform such correction) arising from the presence
of Hazardous Materials located within those portions of the
Center owned by Landlord (other than any such Hazardous
Materials introduced by Tenant in violation of law). Tenant
shall defend, indemnify and save harmless landlord and its
agents and employees against all loss, liability or expense
relating to personal, property or economic injury
(including any costs incurred by Landlord in connection
with the correction of any violation of Environmental Laws
if Landlord is required by law to perform such correction)
arising from the presence of Hazardous Materials located
within those portions of the Center owned by Landlord if
introduced by Tenant, its agents, employees or contractors.
The provisions of this Section 7.4.3 shall survive the
expiration or earlier termination of this Lease. For the
purposes of this Lease, the term "Environmental Laws" shall
be defined to include all present or future laws or
regulations regarding the use, storage, removal or
abatement of hazardous, toxic and/or environmentally
controlled materials. As used herein, "Hazardous Materials"
shall mean all hazardous, toxic and/or environmentally or
statutorily controlled materials. If Tenant is required by
law to correct a violation of any Environmental Laws and if
such violation was caused after Delivery of Possession by a
third party, unaffiliated with Landlord or Tenant,
Landlord's indemnity in such instance pursuant to this
Section 7.4.3 shall be limited to any costs incurred by
Tenant in Landlord's or Tenant's name in connection with
the correction of any violation of Environmental Laws.
Article VIII. Maintenance, Repairs and
Utilities
Section 8.1. Tenant's Obligations. Tenant, at Tenant's
sole expense, agrees to:
(a) maintain the interior of the Building, Tenant's
exterior sign panels, and the plate glass, vestibules and
exterior doors serving the Premises, windows, window 'and
door frames, store front, plumbing, mechanical, electrical,
sprinkler systems exclusively serving and located within the
Premises, locks, security system and door closure devices,
in good order and repair;
(b) maintain the non-structural aspects of the roof serving
the Building in good order and repair; provided, however,
that Landlord shall be responsible for all capital repairs
and replacements (as defined under GAAP) to such roof during
the Initial Term in; and, provided further, however,
that if Tenant makes capital expenditures for repair or
replacement of the roof serving the Building during the
final 10 years of the Term (as extended), Landlord shall
reimburse Tenant for the unamortized portion of such capital
expenditures at the end of the. Term (amortized on a
straight-line basis over 10 years in accordance with GAAP).
Such payment shall be made by Landlord no later than 30 days
before the end of the Term and in no event shall the end of
the Term be deemed to have occurred until such payment has
been made (but all Base Rent and additional charges due
hereunder and all obligations of Tenant hereunder shall
fully xxxxx from the original effective end of the Term
until such payment is received by Tenant);
(c) maintain, repair and replace the Common Facilities
(including landscaping, irrigation systems, backflow systems
and fire alarm systems) located on the Premises in good
order and condition; provided, however, that Landlord shall
be responsible for all capital repairs and replacements (as
defined under GAAP) during the first 7 years of the Initial
Term; and, provided further, however, that if Tenant makes
capital expenditures for repair or replacement of
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the Common Facilities located on the Premises during the
final 7 years of the Term (as extended), Landlord shall
reimburse Tenant for the unamortized portion of such capital
expenditures at the end of the Term (amortized on a straight-
line basis over 7 years in accordance with GAAP). Such
payment shall be made by Landlord no later than 30 days
before the end of the Term and in no event xxxXx the end of
the Term be deemed to have occurred until
such payment has been made (but all Base Rent and additional
charges due hereunder and all obligations of Tenant
hereunder shall fully xxxxx from the original effective end
of the Term until such payment is received by Tenant);
(c) promptly remove all snow, ice and debris from the
Premises; and
(d) quit and surrender the Premises broom clean, in the
same order and condition as the Premises are in on the
Commencement Date or may be put in during the Term, ordinary
wear and tear excepted.
Notwithstanding the foregoing, Tenant shall not be
required to make any repairs or replacements required to be
made by Landlord pursuant to Section 8.2 or which are due
to structural defects (unless such repairs are
necessitated, by the negligence of Tenant, its agents or
employees not covered, or required to be covered, by
Landlord's insurance), Article X or Article XI.
Section 8.2. Landlord's Obligations. Landlord, at
Landlord's sole expense except as expressly set forth
below,agrees to:
(a) maintain (or cause to be maintained) ,the exterior and
structural portions of the Building in good order and
repair, including repairing and replacing foundations,
floors, structural supports, roofs (including maintaining
the roof in a watertight condition), roof structures, walls,
and canopies; maintain and replace as necessary all fuel
tanks (if any) serving the Premises; and repaint all
exterior painted portions of such improvements when
reasonably necessary;
(b) make all alterations, repairs and replacements,
interior and exterior, when necessary as a result of
Landlord's failure to promptly discharge its obligations
under this Lease;
(c) in connection with Landlord's responsibilities, pay all
permit and inspection fees imposed by governmental
authorities, except fees relating to Tenant's Work or
Tenant's business and signs or Tenant's alterations or
improvements;
(d) provide (or cause to be provided) adequate lighting of
the parking areas, service areas, roadways and sidewalks
(from at least 6:00 A.M. to 12:00 midnight Monday through
Saturday and 11:00 A.M. to 10:00 P.M. on Sundays, with
Tenant agreeing to pay its equitable share (with the other
tenants open before or after such hours) of the utility
charges incurred to light said areas before or after such
hours if required by Tenant); and
(e) perform all work required to comply with all
Environmental Laws in connection with Hazardous Materials
that may be on or introduced onto the Premises or those
portions of the
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Center owned by Landlord (other than such Hazardous
Materials which are introduced by Tenant).
Section 8.3. Utilities and HVAC.
Section 8.3.1. Utilities. Landlord shall provide
as a condition to Delivery of Possession and thereafter
maintain adequate connections with the local water supply,
sewage systems, gas, electrical and other utilities,
including separate meters for measuring Tenant's use.
Tenant shall select and pay the utility companies directly
for all water, fuel, gas, electricity, telephone and other
utilities used by Tenant on the Premises. Tenant shall be
entitled to all savings, credits, allowances, rebates or
other incentives awarded by or on behalf of a utility in
connection with Tenant's use of the Premises.
Section 8.3.2. HVAC Maintenance. Landlord shall
be responsible that the heating, ventilating and air-
conditioning equipment serving the Building ("HVAC") is in
good operating order and condition on the Commencement
Date. Tenant shall maintain a commercially reasonable
preventative maintenance contract for the HVAC system, or
alternatively perform such maintenance itself as would be
covered under a typical preventative maintenance contract,
and Tenant shall make all necessary repairs and
replacements of the HVAC system which are not covered (or
would not be covered) under such preventative maintenance
contract.
Section 8.4. Performance. All maintenance,
alterations, repairs and replacements to be done by
Landlord or Tenant shall be begun and completed within a
reasonable time and shall be performed in a manner which
minimizes interference with the rights of the other. If
during such repairs and replacements by Landlord the
Premises are wholly or partially unusable for the then
current use, there shall be an equitable abatement of Base
Rent and additional charges until such time as such repairs
and replacements have been completed.
Article IX. Assignment
Section 9.1. Permitted Assignment. Subject to the
provisions of Section 5.1, Tenant may assign this Lease or
sublet the whole or any portion of the Building and may
grant licenses and concessions without Landlord's consent;
provided that, if during the Extended Term(s) any assignee
then has a net worth in excess of $150,000,000.00 (in 2006
dollars), Tenant shall be thereafter released from all
liability hereunder; otherwise, Tenant shall remain
primarily liable for the full performance of the Lease.
After any assignment of this Lease by the original Tenant,
Landlord shall notify the original Tenant in writing of any
claimed default under this Lease, and the original Tenant
shall have the right (a) to cure the default (or to
commence such cure provided the cure is thereafter
diligently completed) within 15 days of such notice or the
applicable grace period under the Lease, whichever is
longer, and (b) provided such default has been cured within
the time period contained in (a) above, to have the Lease
reassigned to the original Tenant (or if the Lease has been
terminated as a result of such default, to enter into a new
Lease with the Landlord on the same terms).
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Section 9.2. Recognition. If for any reason this Lease
is terminated prior to the expiration of the Term, Landlord
agrees such termination shall not result in a termination
of any sublease within the Building and any such sublease
shall continue for the duration of its respective term and
any extensions thereof as a direct lease between Landlord
hereunder and the subtenant thereunder, with the same
force
force and effect as if Landlord
hereunder had originally entered into such sublease as
landlord thereunder; provided, however, that Landlord shall
only be bound by the provisions of this Section 9.2 so long
as: (i) Landlord shall not be bound by any payment by such
subtenant under the sublease made more than 30 days in
advance; (ii) such subtenant is not then in default under
the sublease and shall have cured any default of this
Lease; (iii) the rent per square foot to be paid by the
subtenant under the sublease equals or exceeds the rent per
square foot to be paid by Tenant hereunder; (iv) Landlord
shall not be liable for the payment of any security deposit
not paid to Landlord; (v) Landlord shall not be bound to
any provision in the sublease which creates any rights or
remedies in the subtenant which are greater than the rights
of Tenant under this Lease; (vi) Landlord shall not be
bound to any provision in the sublease which creates
obligations (on a proportionate basis, if appropriate) upon
the landlord thereunder which are greater than Landlord's
obligations under this Lease; (vii) Tenant shall remain
primarily liable for the full performance of such sublease
(provided, however, that Tenant shall not be bound by any
amendment, addition, assignment, sublease, transfer,
renewal, extension or other modification of the sublease
unless and until Tenant shall have been notified of same
and shall have agreed or consented thereto, which consent
shall not be unreasonably withheld or delayed); (viii) the
non-subleased space, if any, within the Building remains a
commercially reasonable leaseable space within the Building
(which shall be deemed commercially reasonable if the depth
of such space shall be no more than 2 times the frontage of
such space, and such space has access to loading and
dumpster/compactor facilities), and (ix) the Building is
not divided into more than 4 spaces with the smallest space
not less than 2,000 square feet. Landlord shall, upon
request, execute such agreements evidencing and agreeing to
the foregoing as each subtenant shall reasonably require.
Article X. Casualty; Restoration
Section 10.1. Restoration. If the Building or other
improvements on the Premises is damaged or destroyed by
fire or other event covered, or required to be covered, by
Tenant's insurance (collectively, a "Casualty"), then,
subject to the provisions of Section 10.2, Tenant shall use
reasonable efforts to restore such improvements to
substantially their condition prior to such Casualty to the
extent of insurance proceeds made available to Tenant. In
such event, Landlord shall make available to Tenant all
insurance proceeds as a result of such Casualty as
necessary for such restoration of such improvements.
Section 10.2. Substantial Casualty. If such Casualty
results (i) in more than 5% of the floor area of the
Building being unsuitable for the then current use and
occurs during the last 3 Lease Years of the Term, or (iii)
in damages not covered by insurance in an amount greater
than 15% of the replacement cost of the Building, then
Tenant, by notice given within 60 days after such Casualty,
may elect to terminate this Lease. In the event this Lease
is terminated pursuant to this Section 10.2, all insurance
proceeds on account of such Casualty shall be the property
of Landlord, after deduction and payment to Tenant of an
amount equal to the then unamortized cost of improvements
installed on the Premises by Tenant.
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Section 10.3. Rent Abatement; Suspension
of Term. If any casualty results in the total
suspension of business in the Premises:
(a) all rents and additional charges shall xxxxx from the
date of such suspension of business until the earlier of the
date business is resumed or 60 days following the completion
of restoration by Landlord; and
(b) Tenant shall have the option of suspending the running
of the Term from the date of the casualty to the earlier of
the date business is resumed or 60 days following the
completion of restoration by Landlord; such option to be
exercised by written notice within 30 days after Landlord
delivers possession of the Premises with restoration
completed.
If the casualty or restoration results in a
partial suspension of business, rent and
additional charges shall be equitably abated
during any such period.
Article XI. Eminent Domain
Section 11.1. Total. If the entire
Premises is taken under the power of eminent
domain, this Lease shall terminate on the
date Tenant is deprived of possession
pursuant to such taking. For the purpose of
this Article XI, a taking under the power of
eminent domain shall include conveyances or
dedications made in settlement of or in lieu
of condemnation proceedings.
Section 11.2. Partial. If under the power
of eminent domain, by one or more takings, or
as a result of any other action by a
governmental or quasi-governmental entity:
(a) any part of the Building is taken; or
(b) any part of that portion of the service areas,
including loading areas and facilities, designed for use
with the Building is taken; or
(c) any part of the Tenant's Protected Area shown on
Exhibit A is taken; or
(d) any of the following is materially impaired: (i)
Tenant's use of the Tenant's Protected Area or the Premises,
(ii) the visibility of the Premises or any of Tenant's
signage, or (iii) the ingress or egress to or from Tenant's
Protected Area onto Milwaukee Avenue or Xxxxx'x Parkway
(provided, however, that the foregoing shall not apply to a
taking of, or closure of, the curb cut onto Xxxxx'x Parkway
as shown on Exhibit A as the truck access);
then, in any such event (a "partial taking"),
Tenant may terminate this Lease on 10 days'
notice given within 90 days after Tenant is
deprived of possession or its rights are
materially impaired as provided above. If
Tenant does not elect to terminate this
Lease, Landlord will restore the remainder of
the Building, Premises and the Common
Facilities as soon as possible to as close to
its prior condition and design as is
reasonably feasible.
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Section 11.3. Rent Abatement. In the event of any
partial taking that materially and adversely impacts
Tenant's use and enjoyment of the Premises or the Common.
Facilities, all rents and additional charges payable by
Tenant hereunder shall be reduced equitably from and after
the date Tenant is deprived of possession or its rights are
materially impaired as provided above, based on the nature,
extent and impact of-the taking. In addition, if any such
taking results in the suspension of business in the
Premises, all rents and additional charges payable by
Tenant hereunder shall xxxxx from the date of such
suspension of business until the earlier of (i) the date
such business is resumed, or (ii) the date 60 days
following the completion of restoration by Landlord.
Section 11.4. Award. Tenant shall be entitled to that
portion of any award resulting from a taking applicable to
the Premises equal to the value of Tenant's leasehold
improvements, leasehold interest (intending to mean the
increased cost to Tenant to obtain substitute property of a
similar character), and relocation expenses. The termination
of this Lease as provided in this Article XI shall not
deprive Tenant of its rights hereunder including the right
to make claim against the condemning authority for any
damages suffered by Tenant.
Article XII. Defaults; Remedies
Section 12.1. Tenant's Defaults. If Tenant (a) fails
to pay rent or make any other payment hereunder for more
than 10 business days after Tenant receives notice of such
failure from Landlord; or (b) fails to perform or observe
any other agreement or condition contained herein and such.
failure is not corrected within 30 days after Tenant
receives notice from Landlord of such failure (or such
longer period as may be reasonably required if such failure
may not be corrected within such 30 day period Tenant shall
commence to correct the same and thereafter diligently
pursue the correction thereof), then, in addition to all
other remedies available at law or in equity, Landlord
shall have the right to terminate this Lease on not less
than 30 additional days notice to Tenant and thereupon may
recover possession of the Premises in the manner prescribed
by law. No action or proceeding to oust Tenant from
possession or to terminate this Lease shall be taken by
Landlord unless the notices herein specified are first
given and the times to cure defaults specified have expired
without cure.
Section 12.2. Remedies. In case of a termination under
Section 12.1, Tenant agrees to pay to Landlord as damages
(a) Landlord's reasonable out-of-pocket costs incurred in
terminating this Lease and recovering possession of the
Premises, plus (b) the reasonable costs of reletting the
Building including brokerage commissions, reasonable
attorneys fees, cost of alterations or improvements to the
Building to return the Building to the surrender condition
required by Section 8.1(d), plus (c) a monthly amount for
the duration of the Term (not including any unexercised
extensions) equal to the amount, if any, of (i) the Base
Rent and additional charges payable by Tenant in excess of
(ii) the amount of rent and additional charges actually
received by Landlord by reletting the Building. Landlord
agrees to use commercially reasonable, and good faith and
diligent efforts to mitigate its damages.
Section 12.3. Disputes. Notwithstanding any of the
foregoing provisions to the contrary, and except in
connection with the non-payment of Base Rent by Tenant
without a claim of set-off or abatement provided for
herein, in the event of an unresolved dispute between
Landlord and
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Tenant regarding the performance by either party of an
obligation or condition of this Lease, the non-performance
of which constitutes a default under this Lease, as a
condition precedent to the filing of litigation or
arbitration, authorized representatives of Landlord and
Tenant shall use good faith and commercially reasonable
efforts to resolve said dispute within 30 days after
receipt of a default notice (except where a shorter period
is reasonably required, including emergencies). In
addition, it is agreed that if at any time a dispute shall
arise as to any sum of money to be paid by one party to the
other under the provisions hereof or as to any work to be'
performed by either of them under the provisions hereof,
the party against whom the obligation is asserted shall
have the right to make payment or perform such work "under
protest", such payment or performance not being regarded as
voluntary payment or performance, and there shall. survive
the right on the part of said party to institute suit for
the recovery of such sum or the cost of such work. If it
shall be adjudged that there was no legal obligation on the
part of said party to pay such sum or any part thereof or
perform such work or any part thereof, as the case may be,
said party shall be entitled to recover such sum or the
cost of such work or so much thereof as it was not legally
required to pay or perform under the provisions of this
Lease.
Section 12.4. Self Help. If Landlord or Tenant fails
to perform any of its agreements contained in this Lease
and such failure continues for 30 days after notice thereof
(except (i) in the case of insurance premiums due, (ii)
where a shorter period is reasonably required, including
emergencies (in which emergency event telephonic and/or
facsimile notice shall be permitted), or (iii) where a
longer period is reasonably required to complete such
cure), Tenant or Landlord, as appropriate, may cure such
failure on behalf of and at the expense of the defaulting
party and do all necessary work, make all necessary
payments, or otherwise take such other action at law or in.
equity as such party deems necessary to cure such failure,
notwithstanding any other remedy herein provided. The
parties agree to pay to each other any reasonable third
party amount so paid by the other within 30 days after
proof of payment together with Interest. If Landlord fails
to pay any such amount to Tenant within 30 days of Tenant
billing Landlord therefor, Tenant shall have the right to
(a) set off such amount against 50% of the future monthly
payments of Base Rent until Tenant is fully reimbursed for
such amount, and (b) set off all post-judgment or
undisputed amounts due against future payments of Base Rent
until Tenant is fully reimbursed (and in either event if
Tenant cannot so reimburse itself in full prior to the
expiration of the Term hereof (including Extended Terms),
the Term shall automatically extend (at the same Base Rent
as owed immediately prior to the expiration of the Term)
for the period of time necessary to allow Tenant to be
fully reimbursed).
Article XIII. Representations and Warranties; Quiet
Enjoyment
Section 13.1. Landlord's Representations and
Warranties. Landlord represents and warrants that:
(a) Landlord has good title to the Premises in fee
simple absolute and the right to use the Common Facilities
pursuant to the CCRs, subject only to Permitted Liens, it
has full right, authority and financing to make this Lease
and to perform as required under this Lease, and this Lease
does not conflict with any other agreement to which
Landlord is bound. Landlord will furnish to Tenant upon
request evidence reasonably satisfactory to Tenant of its
title and authorization. "Permitted Liens" mean (i) current
taxes not past due, (ii) utility easements, leases
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and other agreements of record not conflicting with
Tenant's rights under this Lease, (iii) those priority
mortgages, deeds of trust, prime leases or ground leases
for which Tenant has received a non-disturbance agreement
as contemplated by Section 13.3, and (iv) without limiting
the provisions of Section 13.6, the CCRs; and
(b) The Premises are zoned to allow their use as a matter
of right for the sale of office equipment, office furniture
or office supplies and the provision of office services
provided by Tenant and Tenant's use of the Common Facilities
for access to the Premises, accessory automobile parking,
signage and service facilities contemplated by this Lease,
shall not be prevented or materially impaired by any current
zoning, building, health, safety, environmental or other
governmental law or regulation, or by any restriction,
covenant, lease or agreement entered into, whether of record
or not, and there are no agreements which would be binding
upon Tenant in connection with any construction or
operations within the Premises; and
(c) There are no claims, causes of action or other
proceedings pending or threatened in respect to the
ownership, operation or environmental condition of the
Center or any part thereof (including disputes with
mortgagees, governmental authorities, utilities,
contractors, adjoining land owners or suppliers of goods),
except for claims which are fully insured and as to which
the insurer has accepted defense without reservation; and
(d) To the best of Landlord's actual knowledge as of the
date hereof, there is no existing, pending or contemplated,
threatened or anticipated (i) condemnation of any part of
the Center, (ii) repaving, widening, change of grade or
limitation on use of streets, roads, or highways abutting
the Center, (iii) special tax or assessment to be levied
against the Center, (iv) change in the zoning classification
of the Center, or (v) change in the manner of tax assessment
of the Center.
Section 13.2. Quiet Enjoyment. If Tenant shall not be
in default beyond any applicable grace period, Tenant shall
peaceably and quietly occupy and enjoy the full possession
and use of the Building, Premises and the use of the Common
Facilities as herein provided. If at any time there is a
material breach or default of any of Landlord's
representations, warranties or agreements under this
Article XIII, and if for that reason Tenant shall be
materially deprived of or impaired in the use and enjoyment
of the Building, Premises and/or Common Facilities as
herein provided for a period of 5 business days, the rents
and additional charges to be paid by Tenant shall be
equitably abated during any such period. If such period
continues for more than 60 days after notice from Tenant,
Tenant may at its option terminate this Lease by notice to
Landlord while reserving all rights which Tenant may have
for Landlord's default under this Lease.
Section 13.3. Subordination; Non-Disturbance. If the
Premises is, as of Delivery of Possession, subject to any
mortgage, trust deed, prime lease or ground lease, then, as
a condition to Delivery of Possession and as part of
Landlord's Work, Landlord shall provide Tenant with an
agreement executed by such lien holder which shall assure
Tenant's right to possession of the Premises and other
rights granted under this Lease in accordance with the
terms and conditions of this Lease. Such agreement shall be
substantially in the form of Schedule 2 with any changes
mutually agreeable to both lender and Tenant and shall be
recordable with the applicable registry or office at
Tenant's sole cost and expense. Tenant agrees to
subordinate this Lease to any future
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mortgage, trust deed or ground lease, provided such lien
holder shall assure Tenant's right to possession of the
Premises and other rights granted under this Lease in
accordance with this Lease's terms and conditions. Such
assurance shall be substantially in the form of Schedule 2,
and shall be recordable with the applicable registry or
office at Tenant's sole cost and expense.
Section 13.4. Memorandum of Lease. The parties have
executed, or at the request of either party hereafter will
execute, a Memorandum of this Lease in substantially the
form of Schedule 3 and Tenant shall have the right to
record same at its sole cost and expense with the
applicable title registry office. In the event of any
inconsistency between the terms and provisions of this
Lease and those contained in such Memorandum of Lease, the
terms and provisions of this Lease shall control.
Section 13.5. Landlord Waiver. Landlord hereby waives
any and all rights it may have to a landlord's lien on
Tenant's personal property, including without limitation,
Tenant's inventory, trade fixtures, and removable equipment
and fixtures located within the Premises. Landlord agrees
to execute, upon request, a confirmation of such waiver in
form reasonably satisfactory to Tenant and its lenders.
Section 13.6. The CCRs. Reference is made to that certain
draft (i) Easements, Covenants, Conditions and Restrictions,
to be executed and recorded in the Official Records of Lake
County, and (ii) Declaration of Easements and Restrictions,
to be executed and recorded in the Official Records of Lake
County, both with respect to the Center (herein collectively
referred to as the "CCRs"), a copy of each of which is
attached hereto as Exhibit G. To the extent the same would
materially interfere with Tenant's operations within the
Premises, Tenant's use of the Common Facilities located
within Tenant's Protected Area, any of Tenant's signage
and/or any of Tenant's rights hereunder, Landlord agrees
that no material changes shall be made to the CCRs from that
attached hereto without Tenant's prior consent. As a
condition to Delivery of Possession and as part of
Landlord's Work, Landlord shall provide Tenant with a fully
executed recorded copy of the CCRs, together with reasonable
evidence that all mortgages and other forecloseable liens
are subordinate to the CCRs.
Section 13.6.1. Grant of Rights. Landlord grants
and demises to Tenant the benefit of all easement,
licenses, rights of way, and privileges granted to Landlord
under the CCRs. Landlord shall not, without the prior
consent of Tenant, execute, or otherwise agree to, any
modification of the CCRs, that will affect Tenant, the
Premises, Landlord's obligations or Tenant's rights under
this Lease in a material adverse manner, nor waive any of
its rights thereunder, nor grant any consents or approvals
thereunder. Landlord shall not default under the CCRs, as
amended, and shall enforce all provisions of the CCRs. If
Landlord shall default under this Section 13.6.1 and shall
not cure such default within 60 days after notice from
Tenant then, in addition to all other rights and remedies
of Tenant as a result thereof, Tenant's rights with respect
thereto under Section 12.4 hereof shall include, without
limitation, the right to bring suit in the name of Landlord
and/or Tenant to enforce the CCRs, and Landlord shall
cooperate with Tenant in so doing.
Section 13.6.2. Priority of CCRs. Although the
Premises and the rights of Tenant under this Lease are
necessarily subject to the CCRs, the parties hereto agree
that, as between the
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parties hereto, all provisions of this Lease shall be
superior and paramount to the CCRs, and in the event of any
inconsistency between the CCRs, and this Lease, the
provisions of this Lease shall prevail. If any rights of
Tenant under this Lease are disturbed and/or interfered
with by any person claiming under the CCRs, the same shall
be deemed a default by Landlord under this Lease, including
without limitation Section 13.2 hereof.
Article XIV. General Provisions
Section 14.1. Broker. Landlord shall pay all fees and
commissions for bringing about the execution and delivery
of this Lease. Each of Tenant and Landlord represent and
warrant to each other that it has not dealt with any broker
in connection with this Lease other than Metro Commercial
Real Estate and Mid-America Real Estate.
Section 14.2. Rent Refund; Reimbursement. Promptly
after the termination of this Lease for any reason other
than a default by Tenant, Landlord shall (a) refund to
Tenant all rents and other charges paid by Tenant to the
extent they are allocable to any period of time beyond the
effective date of such termination or are applicable to an
abatement of rent and other charges, and (b) reimburse
Tenant for the unamortized value of Tenant's leasehold
improvements (to the extent that Tenant is not otherwise
reimbursed pursuant to a taking award, casualty proceeds or
otherwise). The obligation of Tenant to make Tenant's Tax
Payment (as defined in Section 4.2.1 hereof) shall survive
the expiration or earlier termination of this Lease.
Section 14.3. Notices. Notices, consents and demands
required or permitted to be given hereunder shall be in
writing shall specifically identify the Premises as "Vernon
Hills, IL", and shall be effective when received or
refused, whether by hand delivery, nationally recognized
overnight courier (with evidence of receipt or refusal) or
U.S. Mail (return receipt requested), to the parties'
respective Address stated in Article I of this Lease or to
such other address as the parties shall designate by
written notice to each other, and each party may identify
additional parties to receive copies of same.
Section 14.4. Holding Over. Should Tenant hold over in
possession of the Premises after the expiration of the
Term, as extended, such holding over shall not be deemed to
extend the Term or renew this Lease, but this Lease shall
continue as a tenancy from month to month upon the terms
and conditions herein contained except, as Landlord's sole
and exclusive remedy (without limiting Landlord's right to
recover possession of the Premises in any manner
prescribed by law), at a monthly Base Rent equal to 150% of
the Base Rent in effect immediately preceding the Term's
expiration, plus the additional charges, if any, provided
for herein.
Section 14.5. Waiver/Remedies. The failure of Landlord
or Tenant to insist upon strict performance by the other of
any of the provisions of this Lease or to exercise any
option herein conferred shall not be deemed as a waiver or
relinquishment for the future of any such provision or
option. Except as expressly provided otherwise herein, all
rights and remedies provided for
herein or otherwise existing at law or in equity are
cumulative, and the exercise of one or more rights or
remedies by either party shall not preclude or waive its
right to the exercise of any or all of the others.
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Section 14.6. Successors. All of the provisions hereof
shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal
representatives, successors, assigns, subtenants and
licensees. No third party, other than such heirs, legal
representatives, successors, assigns, subtenants and
licensees shall be entitled to enforce any or all of the
provisions of this Lease or shall have any fights hereunder
whatsoever.
Section 14.7. Interpretation. The captions of the
Articles and Sections contained herein are for convenience
only and do not define, limit, construe or describe the
scope or intent of such Articles or Sections. All exhibits
attached to this Lease shall be deemed incorporated into
this Lease in their entirety. This Lease shall be
interpreted and construed in accordance with the laws of
the state in which the Premises are located and the venue
of jurisdiction and disputes shall be in Lake County,
Illinois. Nothing shall be construed to require Tenant to
be open for business at the Premises or to operate under
any specific trade name, and Landlord explicitly agrees
that Tenant shall have the right to cease or suspend
operations at the Premises at any time and from time to
time provided Tenant otherwise complies with the provisions
of this Lease. In the event with Landlord's consent Tenant
shall at any time occupy additional space within the Center
not originally included with the Premises, the term
"Premises" shall be deemed to include such additional space
for all purposes under this Lease.
Section 14.8. Consents and Approvals. Except as
otherwise expressly provided herein, where pursuant to the
terms of this Lease or in connection with the
administration of the Lease, the consent or approval of one
party shall be required, requested or appropriate, such
party covenants and agrees that its consent or approval
shall not be unreasonably withheld, delayed or conditioned,
and that the requesting party shall not be charged for such
consent or approval.
Section 14.9. Force Majeure. Provided (i) the delayed
party has periodically kept the other party hereto fully
advised by notice of such delays and the cause thereof, and
(ii) the delayed party uses commercially reasonable efforts
and all due diligence to effect the required performance,
in any case where either party hereto is required to do any
act, delays caused by or resulting from an Event of Force
Majeure shall not be counted in determining the time when
the performance of such act must be completed, whether such
time be designated by a fixed time, a fixed period of time
or "a reasonable time." The provisions of this Section 14.9
shall not be applicable with respect to payment of money
or, except as expressly set forth therein to the contrary,
obligations under. Articles II, X, XI or XIII. For the
purposes hereof, an "Event of Force Majeure" shall be
defined as the occurrence of any of the following: Act of
God, war, civil commotion, fire or other casualty, extreme
weather conditions, labor difficulties, general shortages
of labor, materials or equipment, government regulations or
other causes beyond the reasonable control of such party,
its agents, employees, contractors or subcontractors (other
than causes related to such party's financial condition).
Section 14.10. Partial Invalidity. If any provision of this
Lease or the application thereof to any person or
circumstance shall, at any time or to any extent, be invalid
or unenforceable, the remainder of this Lease shall not be
affected thereby, and each such provision shall be valid and
be enforced to the fullest extent permitted by law.
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Section 14.11. Attorney Fees. In the case of any
litigation or arbitration among the parties, the prevailing
party shall be entitled to reimbursement for its reasonable
costs, including reasonable attorneys' fees, incurred in
any such dispute.
Section 14.1 Certificates. During the Term, each party
within 30 days of a written request by the other (which request, if
from Landlord to Tenant, shall be accompanied by a current list of
all tenants and occupants of the Center and whether or not each is then
open for business), certify in writing as to the validity of this Lease,
the Term, the Base Rent and additional charges owed hereunder, and the
existence of any amendments, defaults, off-sets or counterclaims. All
requests for certification in excess of two requests per 12 consecutive
month period shall be accompanied by a payment of $250.00.
Section 14.13. Entire Agreement. This Lease contains
the entire and exclusive agreement between the parties
relating to the Premises, and may not be modified except by
written instrument signed by the party to be bound thereby.
Section 14.14. Interest. For the purposes of this
Lease, "Interest" shall mean the lesser of the Prime Rate
as then published in The Wall Street Journal plus 4% per
annum or the maximum rate allowed by law.
Section 14.15. Effect of Lease. The preparation,
revision or delivery of this Lease for examination and
discussion shall in no event be deemed to be an offer to
lease the Premises but shall be merely a part of the
negotiations between Landlord and Tenant. Neither party
hereto shall have any obligation or liability to the other
whatsoever at law or in equity (including any claims for
detrimental reliance or promissory estoppel) unless and
until such time as both parties shall have executed and
delivered this Lease.
Section 14.16. CPI. For the purposes of this Lease,
"CPI" means the Consumer Price Index -- All Urban Consumers
(U.S. City Average, All Items: Base 1982-84 = 100) as
published by the United States Department of Labor, Bureau
of Labor Statistics. Should the CPI publication be
discontinued or the CPI be published less frequently or in
some other manner altered, Landlord and Tenant shall
jointly adopt a substitute index or procedure which
reasonably reflects consumer prices.
Section 14.17. Waiver of Consequential Damages. In
connection with this Lease, Landlord and Tenant hereby
waive any claim for consequential, special or punitive
damages that either party may have against the other.
Section 14.18. Exculpation. In the event of any
transfer of Landlord's interest in this Lease, the
transferor shall cease to be liable and shall be released
from all liability for the performance or observance of any
agreements or conditions on the part of Landlord to be
performed or observed subsequent to the time of said
transfer, provided that such transferee assumes in writing
all of Landlord's obligations hereunder. In the event of
any breach or default by Landlord in any term or provision
of this Lease, Tenant agrees to look solely to the equity
interest then owned and/or leased by Landlord in the land
and improvements which constitute the Center, any rentals
derived therefrom, and the proceeds of any judgment, sale,
insurance or
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eminent domain award resulting from the Center or any
part thereof (subject, however, to prior use of any
insurance proceeds or eminent domain award for
restoration as provided in Articles X and XI);
however, in no event shall any deficiency judgment be
sought or obtained against any individual person or
entity comprising Landlord; provided, however, that
Landlord shall be personally liable for the
return of any overpayment of Tent by Tenant as set
forth in Section 14.2 hereof. Nothing in this Lease
shall be a bar to any injunctive or other equitable
remedy available to Tenant or Landlord. In the event
of any breach or default by Tenant in any term or
provision of this Lease, Tenant's liability under
this Lease shall be limited to a maximum of
$10,000,000 (in 2007 dollars).
Section 14.19. Co-Tenancy. Notwithstanding
anything contained in this Lease to the contrary, in
the event the Co-Tenancy Requirement (as defined
below) shall not have been met by the Commencement
Date, Tenant may elect to either: (i) delay the
Commencement Date until not more than 30 days after
the Co-Tenancy Requirement has been met (and in such
event the Commencement Date hereunder shall be deemed
to be the earlier of Tenant's opening for business
within the Premises or the expiration of said 30-day
period); or (ii) open for business prior to the Co-
Tenancy Requirement being met but, in lieu of Base
Rent owed hereunder, Tenant shall pay to Landlord 50%
of the Base Rent that would otherwise be due
hereunder during each such month that the Co-Tenancy
Requirement is not met. In the event that Tenant
elected to pay 50% of Base Rent pursuant to this
Section 14.19 for 12 consecutive months, Tenant shall
elect, by notice delivered to Landlord within 30 days
after the expiration of said 12-month period, to
either (y) terminate this Lease (effective 90 days
after Landlord's receipt of Tenant's notice), or (z)
recommence the full payment of Base Rent thereafter
coming due hereunder. If Tenant fails to make such
election within said 30-day period, Tenant shall be
deemed to have elected option (z) above. For the
purposes of this Section 14.19, the "Co-Tenancy
Requirement" shall mean Lowes (or a comparable user
in Tenant's reasonable business judgment) opening for
business for at least one day within substantially
all of the premises identified on Exhibit A.
Section 14.20. Acquisition Contingency. This Lease, and
hereunder, are dependent and contingent upon Landlord
acquiring the land constituting Phase I of the
Center. The terms of such acquisition shall be
subject to the reasonable approval of Landlord.
Notwithstanding any Event of Force Majeure, in the
event, after using good faith and October diligent
efforts, Landlord has not so acquired said land by
September 2007, and provided Landlord terminates all
other leases within Phase I of the Center, then
within a period of 30 days thereafter, Landlord may,
by notice to Tenant, terminate this Lease in which
event this Lease shall be of no further force or
effect, and each of the parties shall be relieved of
all further liability hereunder. Further, if this
Lease is terminated pursuant to this Section 14.20
and Landlord (or any entity under common control with
Landlord), at any time during the 18 months
immediately following such termination, commences
development of a shopping center substantially
similar to that depicted on Exhibit A on the land
constituting the Center, Landlord shall send Tenant
notice of same and Tenant shall have the right, to be
exercised within 90 days after receipt of Landlord's
notice together with reasonable details as to the
improvements Landlord intends to construct, to
reinstate this Lease with respect to space comparable
in size to the Premises as contemplated herein in
such shopping center, upon all of the same terms and
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conditions set forth herein. The provisions of this Section
14.20 shall survive any termination of this Lease by
Landlord pursuant to this Section 14.20.
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IN WITNESS WHEREOF, each party has caused this Lease
to be executed under seal by its duly authorized
representative.
LANDLORD: TENANT:
BRADFORD LANDING SOUTH LLC STAPLES THE OFFICE
SUPERSTORE EAST, INC.
By: /s/ Ven M Pagnota By: /s/ Xxxx X Xxxxxx
Its President Executive Vice President - Real Estate
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