ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this
"Assignment") is made and entered into as of the 19 day of
January, 2007, by and between by and between CDK Associates
LLC, having an address 000 Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxx Xxxxxx ("Assignor"), and AEI Income & Growth Fund XXII
Limited Partnership, a Minnesota limited partnership, as to an
undivided fifty (50.0%) percent interest as a tenant in
common, and AEI Income & Growth Fund 24 LLC, a Delaware
limited liability company, an undivided fifty (50.0%) percent
interest as a tenant in common, (together, collectively the
"Assignee"), both having an address of 0000 Xxxxx Xxxxx Xxxxx,
00 Xxxx Xxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx.
RECITALS:
A. Assignor and Assignee are parties to that certain
Purchase and Sale Agreement dated December 4, 2006, (the
"Agreement"), pursuant to which Assignee is acquiring from
Assignor the real property and improvements, located at 4460
32nd Avenue South, Grand Forks, Grand Forks County, North
Dakota as more particularly described on EXHIBIT A attached
hereto and incorporated herein by this reference (the
"Property").
B. 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 Agreement dated December 29, 2004 (the "Lease"),
by and between Assignor and Tractor Supply Company (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.
C. 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 modified, pledged, or amended. So far as is
known to Assignor, there is no default by Tenant under the
Lease and no Rent 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 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 attorneys' 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.
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 and Assumption of Lease effective as of the
day and year first above written.
ASSIGNOR: CDK ASSOCIATES LLC,
a South Dakota limited liability company
By: /s/ Xxxxxx X Xxxxxxx
Print Name: Xxxxxx X. Xxxxxxx
Its: Managing Member
STATE OF SOUTH DAKOTA )
) ss.
COUNTY OF MINNEHAHA )
On this 15 day of January, 2007, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Xxxxxx X. Xxxxxxx, in his capacity as the Managing
Member of CDK Associates LLC, a South Dakota limited liability
company, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said company by
authority of its board of directors on behalf of the company..
/s/ Xxxxxx Xxxxxxxx
Notary Public
[notary seal]
ASSIGNEE: AEI Income & Growth Fund XXII
Limited Partnership,
a Minnesota limited partnership
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
its General Partner
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: President
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
On this ____ day of January, 2007, before me, the undersigned,
a Notary Public in and for said State, personally Xxxxxx X.
Xxxxxxx, personally known to me to be the person who executed
the within instrument as the President of AEI Fund Management
XXI, Inc., a Minnesota corporation, the general partner of AEI
Income & Growth Fund XXII Limited Partnership, a Minnesota
limited partnership, on behalf of said corporation.
/s/ Xxxxxxxx X Xxxxxxx
Notary Public
[notary seal]
AEI Income & Growth Fund 24 LLC,
a Delaware limited liability
company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
its Managing Member
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: President
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
On this ____ day of January, 2007, before me, the undersigned,
a Notary Public in and for said State, personally Xxxxxx X.
Xxxxxxx, personally known to me to be the person who executed
the within instrument as the President of AEI Fund Management
XXI, Inc., a Minnesota corporation, the managing member of AEI
Income & Growth Fund 24 LLC, a Delaware limited liability
company, on behalf of said corporation.
/s/ Xxxxxxxx X Xxxxxxx
Notary Public
[notary seal]
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASE
Legal Description
Lot One (1), in Block One (1), Plat of Xxxxxxx'x West First
Addition to the City of Grand Forks, North Dakota, according
to the Plat thereof on file in the Office of the County
Recorder within and for Grand Forks County, N.D., and recorded
as Doc. No. 637930.
GRAND FORKS, ND
LEASE
THIS LEASE made as of the 29th day of December , 2004, by
and between CDK Associates, LLC (the "Landlord") and TRACTOR
SUPPLY COMPANY, a Delaware corporation (the "Tenant"). Capitalized
terms shall have the meanings ascribed to such terms in the body
of this Lease.
1. Premises.
(a) LEASED PREMISES. Landlord, for and in consideration of the
covenants contained in this Lease and made on the part of Tenant,
does hereby lease unto Tenant and Tenant does hereby lease from
Landlord the real property described in Exhibit A attached hereto,
and the improvements now or hereafter located thereon (the
"Premises"), situated in Grand Forks, North Dakota, to have and to
hold the same, for the term and on the conditions hereinafter
provided. The Premises shall include an approximately 21,679
square foot building (the "Building"), parking areas,
approximately square foot fenced outdoor display area (the
"Outdoor Display Area"), the trailer display, sidewalk display,
and other display areas, and other related improvements, as
reflected in the Site Plan attached hereto as part of Exhibit A
(the "Site Plan").
(b) CONSTRUCTION OF IMPROVEMENTS. Prior to commencement of the
Term of this Lease, as described in Section 2 below, Landlord
agrees to complete the design, engineering and construction of the
Building and other improvements on the Premises in accordance with
the construction requirements described in Exhibit E attached
hereto (the "Landlord's Work").
(c) APPROVALS. Landlord shall be responsible for obtaining, at
Landlord's expense, all zoning, land use and other governmental
approvals necessary for operation of the Premises by Tenant for
the Intended Use, including, without limitation, the Outdoor
Display Area, and the sidewalk and trailer display areas, all as
reflected on the Site Plan (the "Required Approvals"). Tenant
shall be responsible for obtaining, at Tenant's expense, any
approvals necessary in connection with Tenant's signage (the
"Tenant Approvals"). Notwithstanding the foregoing, if all of the
Required Approvals and the Tenant Approvals have not been obtained
(and copies provided to Tenant) by April 1, 2005 (the "Approval
Date"), Tenant may either (i) waive the requirement for such
approval, or (ii) terminate this Lease upon written notice to
Landlord, such notice to be delivered within thirty (30) days
following the date Landlord notifies Tenant that such approvals
are not available.
(d) APPROVAL OF LEASE EXHIBITS. Landlord and Tenant acknowledge
and agree that the Site Plan attached hereto as Exhibit A is a
preliminary site plan for development of the Premises and sets
forth the general requirements and expectations of the parties
with respect to development of the Premises (the "Preliminary Site
Plan"). Landlord agrees that Landlord will not materially alter
the layout of the Premises as contemplated by the Preliminary Site
Plan, including, without limitation, the size or location of any
of the improvements, the site access, parking areas, outdoor
display areas or signage, without Tenant's prior written approval.
Landlord further agrees that, within ten (10) business days from
the date of this Lease, Landlord shall provide to Tenant, for
Tenant's approval, a final site plan for the Premises. Tenant
agrees that Tenant's approval of the final site plan shall not be
unreasonably withheld so long as the final site plan does not
materially alter the layout of the Premises as contemplated by the
Preliminary Site Plan, including without limitation, the size or
location of any of the improvements, the site access, parking
areas, outdoor display areas or signage. Upon approval of a final
site plan by Tenant (the "Final Site Plan"), the Landlord and
Tenant shall enter into an Amendment to the Lease in the form
attached hereto as Schedule 1(d) which shall delete the
Preliminary Site Plan and substitute the Final Site Plan as
Exhibit A to the Lease.
2. Term.
(a) LEASE COMMENCEMENT. This Lease shall be effective as of the
date of this Lease. Tenant shall have and hold the Premises for an
initial term of fifteen (15) years commencing on the earlier of
(i) sixty (60) days following substantial completion of the
Building and improvements, in accordance with Exhibit E attached
hereto, or (ii) the date on which the Tenant's store is opened for
business to the general public (the "Commencement Date") and
ending on the last day of the month which is one hundred eighty
(180) full months after the Commencement Date. The "Term" shall
mean the original term of this Lease, plus any extensions pursuant
to the terms of this Lease. Upon substantial completion of the
Building and improvements, Landlord shall send to Tenant a
Commencement Notice in the form attached hereto as Schedule 2(a),
and upon Tenant's execution of the Notice, the Commencement Date
set forth on the Notice shall be deemed to be the Commencement
Date of the Lease. A "Lease Year" shall mean each twelve (12)
month period of the Term commencing on the Commencement Date and
every anniversary thereof, provided, however, if the Commencement
Date is on a date other than the first (1st) day of a month, the
first Lease Year shall be extended to include the number of days
from the Commencement Date to the first day of the next succeeding
month.
(b) EARLY OCCUPANCY. Notwithstanding the foregoing, Tenant may
occupy the Premises prior to the Commencement Date for purposes of
completing fixturing and other work to be completed by Tenant in
readying the store for opening.
3. OPTION TO EXTEND TERM. Tenant shall have the right to
extend the Term for three (3) successive periods of five (5) years
each on the terms and conditions contained in this Lease, upon
written notice in writing to Landlord given at least ninety (90)
days prior to the expiration of the initial Term or any extended
Term.
4. ANNUAL RENT/FIXED.
(a) RENT COMMENCEMENT. Tenant's liability for rent shall
commence on the Commencement Date, subject to the terms and
conditions of this Lease. Tenant, in consideration of the
covenants made by Landlord, covenants and agrees to pay to
Landlord as rent for the Premises during the Term, and any
extension thereof, the annual basic rent as set forth on Exhibit
C, attached hereto and made a part hereof (collectively, the
"Annual Rent"), payable in advance in equal monthly installments
on the first (1s1) day of every calendar month (each, a
"Due Date"), as set forth on Exhibit C. If the Commencement Date
is a day other than the first day of a calendar month, the first
rental payment and the last rental payment shall be the pro-rata
portion of such rent for days contained in such fractional month.
Rent shall be paid to Landlord at the address set forth on Exhibit
C, or at such other address as Landlord may designate by written
notice to Tenant.
(b) MONTHLY INSTALLMENTS. All monthly installments of
Annual Rent shall be paid on or before the Due Date in United
States Dollars, without prior demand or offset except as
specifically permitted under this Lease. Any monthly installment
of Annual Rent made more than fifteen (15) days after the Due Date
shall bear interest at the rate of one and one-half percent (1.5%)
per annum until paid.
5. NET LEASE. In addition to the Annual Rent, Tenant shall be
responsible for payment of real estate taxes, insurance premiums
and utilities related to the Premises in order to make the Annual
Rent payable to Landlord, net of all customary expenses of
operating the Premises, as follows:
(a) REAL ESTATE TAXES. From and after the Commencement Date and
during the Term of this Lease and any renewals thereof, Tenant
shall also be responsible for the payment of all real estate
property taxes ("Property Taxes") assessed against the land and
the Building and improvements to be constructed which comprise the
Premises. Landlord shall furnish Tenant with a copy of each paid
tax xxxx, and within thirty (30) days after the receipt of same,
Tenant shall pay to Landlord the full amount of such Property
Taxes as shown on such statement for payment by Landlord. Landlord
shall provide Tenant with an estimate of Property Taxes for the
first Lease Year as soon as available.
(b) INSURANCE. From and after the Commencement Date and during
the Term of this Lease, Tenant shall procure and keep in effect
during the Term public liability and property damage insurance
with a combined single limit coverage of $2,000,000.00 for each
occurrence. Tenant shall also procure and keep in effect during
the Term fire and extended coverage for the Building, written on
an All-Risk Endorsement and Replacement Cost basis. Each such
policy referred to above shall name Landlord and Landlord's
mortgagee as additional insureds, as their interest may appear.
All such policies shall be issued by entities with an A.M. Best
Rating of A-VII or higher. Tenant shall deliver certificates of
insurance evidencing such coverage within ten (10) days of the
Commencement Date, or the date of any renewal of this Lease, and
not less than three (3) days prior to the expiration of any such
policy.
(c) ASSESSMENTS. From and after the Commencement Date and during
the Term of this Lease, Tenant shall pay, as they become due and
payable, all assessments and other charges or governmental
impositions levied upon or assessed against the Premises,
including but not limited to, assessments for sewer or water,
within thirty (30) days after Landlord has furnished Tenant with a
copy of the statement for the same; provided, however, that Tenant
may, in its own name, dispute and contest the same, and in such
case, disputed items shall be paid under protest until finally
adjudicated to be valid. At the conclusion of any such contest,
Landlord shall reimburse Tenant 100% of any reduction and Tenant
shall pay Landlord 100% of
any increase. All court costs, interest and penalties relating to
any such dispute shall be paid by Tenant.
If any assessment is payable in installments or separate
parts over a period of two (2) or more years, only the part which
becomes due in a particular year shall be payable according to the
provisions of this Lease agreement.
(d) UTILITIES. Landlord, at Landlord's expense, shall
cause all utilities serving the Premises to be separately metered.
No splitting mechanism or private meters may be used. Tenant shall
make arrangements for all utilities serving the Premises to xxxx
Tenant directly for monthly usage charges during the Term of this
Lease. Tenant agrees to pay all charges made against the Premises
during Tenant's occupancy of the Premises for utility usage,
including electricity, gas, heat, water, and all other utilities
as and when due during the Term of this Lease and any renewals
thereof.
6. QUIET POSSESSION.
(a) POSSESSION. Provided Tenant complies with the terms of this
Lease, Landlord represents, warrants and guarantees to Tenant
quiet and undisturbed possession of the Premises for the Term, and
further represents and warrants to Tenant that Landlord has full
right and lawful authority to enter into this Lease, and is
lawfully seized of the Premises, free and clear of all tenancies,
liens and encumbrances superior in rights to this Lease, except
for real estate taxes not yet due and payable, and the exceptions
described on Exhibit D attached hereto which have been approved by
Tenant (collectively the "Permitted Exceptions"). Landlord
represents and warrants that the Permitted Exceptions do not
prohibit or adversely affect in any way the Tenant's Intended Use,
or the other provisions of this Lease. Landlord warrants and
agrees to defend the title to the Premises, and will indemnify,
hold harmless and defend Tenant against any damage and expense
which Tenant may suffer by reason of any defect in the title or
description of the Premises.
(b) APPLICABLE LAW. The Premises are subject to applicable
statutes, ordinances and regulations which Landlord represents and
warrants do not prohibit or adversely affect the Intended Use of
the Premises, including, without limitation, the Outdoor Display
Area, and the other display areas described on the Site Plan.
(c) CERTIFICATE OF OCCUPANCY. Landlord covenants and agrees that
following completion of the Building and improvements, Landlord
shall obtain, at Landlord's expense, a certificate of occupancy
permitting occupancy of the Premises for Tenant's Intended Use
issued by the appropriate governmental authority having
jurisdiction over the Premises, and the original shall be
delivered to Tenant. Landlord represents and warrants to Tenant
that the Premises, when completed, and the Intended Use, shall
comply with the requirements of all governmental authorities
applicable to the Premises, including, without limitation,
planning and zoning rules and regulations, and Building, health
and fire codes and any requirements of the Required Approvals.
Landlord acknowledges that Tenant's obligation to pay rent
hereunder is contingent upon issuance of an acceptable certificate
of occupancy and Landlord's compliance with the other requirements
set forth in Exhibit E. Notwithstanding anything contained in this
Lease to
the contrary, provided Tenant operates the Premises as
contemplated by the approved plans and specifications, and in
accordance with the Required Approvals, if Tenant is restricted
from operating Tenant's business as contemplated by this Lease,
including use of the Outdoor Display Area and other display areas
designated on the Site Plan, then Tenant may, upon thirty (30)
days prior written notice to Landlord, terminate this Lease, in
which event, Tenant shall satisfy all obligations through the
termination date and shall then be relieved of any further
obligations.
(d) SUBORDINATION; ATTORNMENT; NONDISTURBANCE. At the option of
any first mortgagee of the Premises, this Lease shall be
subordinate at all times to the lien of such mortgage or deed of
trust existing or that may hereafter be placed upon the Premises,
and to any and all advances made thereunder, provided that such
subordination shall not become effective unless and until the
proposed mortgagee or beneficiary shall have executed and
delivered to Tenant the Subordination, Non-Disturbance and
Attornment Agreement attached hereto as Exhibit G (hereinafter
referred to as the "Nondisturbance Agreement").
In the event Landlord has not furnished Tenant with an
executed Nondisturbance Agreement from any existing mortgagee or
beneficiary within sixty (60) days from the date of this Lease,
Tenant shall have the right to terminate this Lease by written
notice to Landlord, and immediately receive from Landlord any and
all prepaid rents, deposits and other sums paid by Tenant on
account of this Lease.
(e) ADA COMPLIANCE. Landlord covenants and agrees that at its own
expense, and without any right of reimbursement from Tenant, it
shall complete construction of the Building and related
improvements, and take such other actions as shall be necessary to
cause the Premises, to fully and timely comply with the
requirements of all governmental authorities applicable to the
Premises, including, without limitation, planning and zoning rules
and regulations, Building, health and fire codes, the "American
with Disabilities Act" of 1990 as amended and the Federal
regulations promulgated thereunder (the "Disabilities Act");
provided, however, that, with respect to the Disabilities Act, the
parties agree as follows:
(i) Each party shall have responsibility under the Disabilities
Act for its own standards, criteria, policies, practices, and
procedures.
(ii) Tenant shall have the responsibility for the provision of
auxiliary aids and services" (as such term is used in the
Disabilities Act) to its customers, if and to the extent required
in connection with its operation of its business on the Premises.
(iii) Except as provided in subsection (iv) below, Landlord
shall have responsibility for the removal of barriers, where such
removal is required by the Disabilities Act.
(iv) Tenant shall have the responsibility for the removal of
barriers, if any, created by its trade fixtures and leasehold
improvements made by Tenant, where such removal is required by the
Disabilities Act.
(v) Where barrier removal is not required by the Disabilities
Act, but the use of alternative methods of providing access is
required, Landlord shall have responsibility for the use of such
methods except to the extent that the Disabilities Act required
alternative methods that involve services by Tenant's employees
for the retrieval or delivery of Tenant's inventory.
(vi) Where alterations made by either party trigger 'path of
travel' requirements under the Disabilities Act, responsibility
for satisfying such requirements shall rest on the party making
such alterations.
7. USE OF THE PREMISES. Tenant shall use the Premises
primarily for the sale of farm, home and auto supplies, and any
incidental or accessory uses relating thereto, including the
display of merchandise in the Outdoor Display Area, on the
sidewalks in front of the Building, and in the trailer display
area, all as reflected on the Site Plan attached as Exhibit A (the
"Intended Use"). In addition, Tenant shall have the right to use
the Premises for any other lawful purpose provided the written
consent of Landlord shall have been obtained, which consent shall
not be unreasonably withheld or delayed. Tenant shall not permit
or suffer the use of the Premises for any unlawful purpose.
Landlord specifically acknowledges that Tenant may erect racking
and other display facilities in the Outdoor Display Area reflected
on Exhibit A. Tenant shall also have the right to enclose the
Outdoor Display Area with fencing. In addition, to the Outdoor
Display Area, Tenant may display seasonal merchandise in the areas
designated on the Site Plan attached as Exhibit A.
8. [RESERVED]
9. EMINENT DOMAIN.
(a) TAKING. As used herein, the term "Taking" shall mean any
taking of all or any part of the Premises or any access thereto by
right of eminent domain, by a deed in lieu thereof, or otherwise.
Landlord shall give Tenant prompt notice of any pending or
threatened Taking and shall provide Tenant with copies of all
notices or other information related to any negotiations,
communications, or government actions related to a threatened
Taking.
(b) TERMINATION BY TENANT. If, during the Term, there is a
Taking, and the remaining portion of the Premises, if any, is in
Tenant's judgment unsuitable for the Intended Use, Tenant may by
written notice to Landlord terminate this Lease as of the date
title vests pursuant to such Taking and all rent and other charges
due under this Lease shall be apportioned to such date.
In addition, if as a result of a Taking (i) there is any
material change in access from the Premises to 32nd Street, or
(ii) the parking ratio for the Premises is reduced below one (1)
parking space per 000 xxxxxx xxxx xx xxxxx xxxxxxxx xxxx, xx (xxx)
the repairs to the portion of the Premises subject to the Taking
cannot, in Tenant's reasonable judgment, be repaired within a
reasonable timeframe to avoid disruption of Tenant's business,
then, and in any of such events, Tenant may terminate this Lease
by written notice to Landlord and all rent and other charges due
under this Lease shall be apportioned to the date title vests
pursuant to such Taking.
(c) RESTORATION. If this Lease is not terminated as
hereinabove provided then:
(i) Landlord shall at its sole expense promptly repair and
rebuild the part of the Premises that is not subject to the Taking
to a condition satisfactory, in Tenant's judgment, for the
Intended Use.
(ii) Between the date of Taking and thirty (30) days following the
completion of repairing and rebuilding the Premises, all rent and
other charges payable to Tenant to Landlord hereunder shall be
equitably abated to the extent that the Premises are not, in
Tenant's judgment, suitable for the conduct of Tenant's Intended
Use.
(iii) Upon the completion of such repairs and rebuilding, and
thereafter throughout the balance of the Term, rent and other
charges due Landlord hereunder shall be reduced in that proportion
which the number of square feet of area of the Premises taken
bears to the total number of square feet of area of the Premises
existing immediately prior to such Taking.
(iv) Notwithstanding the foregoing, nothing in this Lease shall
prohibit Tenant from receiving compensation from the condemning
authority for Tenant's interest in the Premises, trade fixtures
installed by Tenant in the Premises, or for Tenant's moving
expenses.
10. MAINTENANCE AND REPAIR.
(a) HVAC AND BUILDING SYSTEMS. Landlord represents and warrants
to Tenant that, as of the commencement of the Term, the heating
ventilating, and air conditioning (collectively the "HVAC"), the
plumbing, mechanical, electrical and roof systems in or serving
the Premises are new, have been tested and are in complete working
order, meet the specifications for the Premises, and are
acceptable for Tenant's Intended Use and in conformity with all
requirements of applicable governmental authorities.
(b) TENANT OBLIGATIONS. Tenant shall, at its expense, maintain in
good condition and repair the exterior and interior of the
Premises, the roof, the other structural elements of the Premises,
and the doors and windows, the Outdoor Display Area, the HVAC and
the plumbing, sewer and electrical systems from the meter into the
Premises (not the main lines), except for any repairs thereto that
are necessitated by the willful or negligent acts of Landlord or
its agents, independent contractors, vendors, suppliers, servants,
other tenants, or employees, which Landlord shall perform at its
expense.
(c) LANDLORD OBLIGATIONS. Notwithstanding Section 11(b) above,
during the first Lease Year, Landlord shall, upon notice, repair
or replace, or cause to be repaired or replaced, without cost or
expense to Tenant, any defective HVAC, plumbing, mechanical,
electrical, roof systems, or other structural and nonstructural
elements making up or serving the Premises.
(d) RIGHT TO CORRECT. If either party fails to perform its
replacement, repair or maintenance obligations hereunder, then the
nondefaulting party, after thirty (30) days written notice to the
defaulting party or upon such shorter notice as may be reasonable
(i) in the event of an emergency or (ii) in the event such
replacement, repair or maintenance is necessary in order to avoid
damage to Tenant's merchandise or interference with Tenant's
business, may perform the same at the cost of the defaulting
party; provided, however, other than in the case of an event or
events described in clause (i) or (ii), above, of this subsection,
if such default cannot be cured within thirty (30) days despite
diligent efforts and such defaulting party commences to cure
within such thirty (30) day period, and thereafter pursues such
cure diligently to completion, then the cure period shall be
extended for such additional period as shall be necessary to
complete such cure, but not to exceed sixty (60) clays.
If the defaulting party is Tenant and Tenant fails to
reimburse Landlord for the cost of replacements, repairs or
maintenance so performed by Landlord within thirty (30) clays
after Tenant receives from Landlord a statement setting forth such
cost, then the cost to Landlord of performing the same shall be
deemed additional Rent.
If the defaulting party is Landlord and Landlord fails
to reimburse Tenant for the cost of replacements, repairs or
maintenance so performed by Tenant within thirty (30) days after
Landlord receives a statement setting forth such cost, then Tenant
may offset the cost to Tenant of performing the same against the
rent and other charges due from Tenant under this Lease.
(e) ASSIGNMENT OF WARRANTIES. All third-party warranties related
to the HVAC, the roof, and other Building systems, shall be
assigned to Tenant upon completion of the Building and
improvements and acceptance of the Building and improvements by
Tenant, as provided for in Exhibit E.
11. ALTERATIONS AND IMPROVEMENTS.
(a) ALTERATIONS OR IMPROVEMENTS BY TENANT. Tenant may,
at its expense, make any nonstructural alterations or improvements
to the Premises which it may deem desirable, provided such
improvements shall be made in a good and workmanlike manner and in
accordance with all applicable governmental requirements. The
Landlord, without expense to itself, shall cooperate with Tenant
in securing Building permits or other authorizations necessary
from time to time for any such work by Tenant.
In addition, Tenant may also make structural alterations or
improvements to the Premises with Landlord's prior written
consent, which consent shall not be unreasonably withheld or
delayed. If Landlord fails to consent or object in writing to any
alterations or improvements proposed by Tenant to Landlord within
fifteen (15) days after Tenant so requests, Landlord shall be
deemed to have consented to such structural alterations or
improvements. If any mechanics' or materialmen's liens are filed
arising from any work by Tenant with respect to the Premises,
Tenant shall satisfy or otherwise remove such liens of record from
the Premises within sixty (60) days of notification thereof by
Landlord. If Tenant disputes the claim, in good faith, Tenant
shall have the right to contest the same in a court of competent
jurisdiction, provided Tenant deposits
a reasonable escrow fund with Landlord or otherwise has the lien
bonded during such proceedings.
(b) LANDLORD'S WORK. Landlord shall, at Landlord's expense,
subject to force majeure, complete the Landlord's Work on or
before October 15, 2005 (the "Completion Date"). In the event
Landlord's Work is not completed by the Completion Date, Tenant
may, in its sole discretion, (i) charge Landlord (by offset
against rent due hereunder) an amount equal to one (1) day of rent
for each day the completion of the Landlord's Work is delayed past
the Completion Date, or (ii) complete Landlord's Work, which event
Landlord shall reimburse Tenant within ten (10) days after
completion thereof for all expenses incurred by Tenant to complete
Landlord's Work plus a project management fee of twenty-five
percent (25%) of the total cost for such work, or, if such expense
is not reimbursed, such expense including the project management
fee, shall be set off by Tenant against the rent due under this
Lease, or (iii) terminate this Lease by giving written notice to
Landlord. Tenant shall use good faith diligent efforts to obtain
the lowest bid for completing Landlord's Work.
(c) END OF TERM. Upon the termination of this Lease, the Tenant
shall, at its option (i) remove any trade fixtures, equipment,
alterations, and improvements installed by it on the Premises and
repair any damage caused by such removal, at its expense or (ii)
leave all such alterations and improvements on the Premises
(except for its moveable trade fixtures, furniture and equipment),
in which event all such alterations and improvements shall become
the property of Landlord.
12. DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY.
(a) DESTRUCTION; RIGHTS OF PARTIES. If the Premises
(including all improvements and alterations thereon, whether made
by Landlord or Tenant) shall be damaged or destroyed by fire, the
elements, unavoidable accident or other casualty, whether in whole
or in part, the Landlord, at its sole cost and expense shall,
within six (6) months from the date such damage or destruction
occurs (the "Expected Completion Date") promptly and with due
diligence repair and rebuild the Premises to the condition
existing just prior to such damage or destruction. Tenant agrees
the proceeds of the property insurance shall be available to
reimburse Landlord for costs and expenses incurred in repairing
and restoring the Premises. If Landlord determines in good faith
that the Premises cannot be so repaired and rebuilt by the
Expected Completion Date, Landlord, shall within five (5) days
from the date of such damage or destruction, give written notice
to Tenant of the date when the Premises will be completely
repaired and rebuilt (the "Revised Expected Completion Date"),
whereupon, Tenant shall have the option either (i) to terminate
this Lease by written notice to Landlord within ten (10) days
thereafter and this Lease shall be deemed to have terminated as of
the date of such damage or destruction; or (ii) to permit Landlord
to completely repair and rebuild the Premises by the Revised
Expected Completion Date.
Notwithstanding anything contained in this section,
Tenant shall have the further right to terminate this Lease by
written notice to Landlord within ten (10) days from the
occurrence of any one of the following events: (i) Landlord does
not commence repairing and rebuilding the Premises within fourteen
(14) days from (a) the date of damage or destruction
(where the Premises are to be repaired and rebuilt by the Expected
Completion Date), or (b) the date Landlord notifies Tenant of the
Revised Expected Completion Date, as the case may be; or (ii)
Landlord does not diligently repair and rebuild the Premises in
good and workmanlike manner; or (iii) Landlord does not completely
repair and rebuild the Premises by the Expected Completion Date,
or the Revised Expected Completion Date, as the case may be.
Any election by Tenant to terminate this Lease pursuant
to the provisions of this section shall be without waiver of any
other rights or remedies available to Tenant under this Lease, at
law or in equity.
(b) RENT ABATEMENT. From the date such damage or
destruction occurs to the Premises to the date when all repairs
and rebuilding are complete and Tenant commences reusing the
Premises for the Intended Use, the rent and all other charges due
under this Lease shall be reduced by the same percentage of the
Premises which, in Tenant's judgment, cannot be economically or
practically used for the Intended Use.
13. WAIVER OF SUBROGATION/INDEMNIFICATION.
(a) SUBROGATION. Landlord and Tenant agree that with respect to
any property loss which is covered by insurance then being carried
or required to be carried by them hereunder, the one suffering
such loss and carrying or required to carry such insurance
releases the other of and from any and all claims, defense costs
and expenses with respect to such loss. Landlord and Tenant
further agree that each of their insurance policies (insuring the
improvements, in the case of Landlord, and Tenant's personal
property, in the case of Tenant) shall provide for an appropriate
waiver of subrogation reflecting this release. Each party shall,
within fifteen (15) days after request by the other party, deliver
to such other party a certificate of insurance and a receipt of
insurance and a receipt evidencing that the insurance required by
this Lease is paid in full and in full force and effect. No
insurance required by this Lease shall be cancelable except after
thirty (30) days notice to Tenant and Landlord. All insurance
required by this Lease may be carried under blanket policies
maintained by the party required to maintain such insurance or may
be carried under a combination of primary insurance and umbrella
coverage. All insurance policies required by this Lease shall be
written by solvent and responsible insurance companies authorized
to do business in the state in which the Premises are located
which are well rated by national rating organizations.
(b) INDEMNIFICATION. Landlord agrees to indemnify and hold Tenant
harmless from and against any and all claims, liabilities,
damages, causes of action, costs and expenses, including
reasonable attorneys' fees, for personal injury, death, property
damage, and other losses occurring in or as the result of
Landlord's operation of any common area, or arising out of any
failure of the Landlord to perform any of its obligations under
the Lease, or resulting from the acts or omissions of Landlord,
its agents, employees or contractors, excluding, however, damages
arising solely out of the negligence of the Tenant or Tenant's
employees, agents or contractors.
Tenant agrees to indemnify and hold Landlord harmless
from and against any and all claims, liabilities, damages, causes
of action, costs and expenses, including reasonable
attorneys' fees, for personal injury, death, property damage, or
other losses occurring in the Premises, or arising out of any
failure of the Tenant to perform any of its obligations under the
Lease, or resulting from the acts or omissions of the Tenant, its
agents, employees or contractors, excluding, however, damage
arising sole out of the negligence of the Landlord, or Landlord's
employees, agents or contractors.
14. TENANT'S PROPERTY AND FIXTURES. Landlord hereby waives any
right to distraint and any Landlord's lien or similar lien on all
personal property in or on the Premises, including Tenant's
moveable trade fixtures, furniture, inventory and equipment,
whether owned by Tenant or any other person, and the same shall be
and remain the personal property of Tenant, exempt from the claims
of Landlord or any mortgagee or lienholder of Landlord without
regard to the means by which the same are installed or attached.
Tenant may, at any time during the continuance of its tenancy or
upon vacating the Premises, remove all such personal property,
including Tenant's moveable trade fixtures, furniture and
equipment, which Tenant owns or may have installed or placed at
its own expense on the Premises or which it furnished and Landlord
installed. If such removal damages any part of the Premises, the
Tenant shall repair such damage.
15. ASSIGNMENT/SUBLETTING.
(a) TRANSFER. As used herein, a "Transfer" shall mean the
assignment of this Lease or the Transfer or the subletting of all
or any part of the Premises by Tenant. Except as provided in
subsection (b) below, Tenant may not effect or cause a Transfer
without Landlord's written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
(b) PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained in this Lease, without the Landlord's prior consent,
Tenant may:
(i) Transfer the Premises or any portion thereof to any
"affiliate company". An "affiliate company " shall mean, for
purposes of this subsection, any corporation, partnership or other
business entity under common control and ownership with the
Tenant, or with the parent or any subsidiary of the Tenant or
Tenant's parent.
(ii) Merge into or consolidate with any corporation.
(iii) Transfer the Premises, or any portion thereof, to any
buyer of all or substantially all of the business operations of
Tenant, provided that, as of the effective date of the Transfer,
provided, however, such buyer shall be subject to all of the terms
and conditions of this Lease.
(iv) Transfer the Premises to any franchisee or licensee of the
Tenant, provided however, such transferee shall be subject to all
of the terms and conditions of this Lease
(v) Effectuate a Transfer in connection with the sale or transfer
of all or any portion of the outstanding stock of Tenant.
Tenant agrees to give Landlord written notice within
thirty (30) days of any Transfer described in (b)(i) through (v)
above. No Transfer described in (b)(i) through (v) shall be deemed
to release Tenant from any obligations under this Lease unless
specifically agreed to in writing by Landlord.
16. OMITTED.
17. DEFAULT.
(a) TENANT DEFAULT. If Tenant shall default in the payment of
rent to be paid by Tenant under this Lease or in the compliance
with any provision of this Lease and such default of Tenant shall
continue uncured for fifteen (15) days in the case of a monetary
default or thirty (30) days in the case of a non-monetary default
after written notice thereof from the Landlord, then the Landlord,
by giving written notice to Tenant, may either (i) terminate this
Lease, or (ii) re-enter the Premises by summary proceedings, in
either event, removing Tenant and removing all property from the
Premises and re-renting the Premises at the best possible rent
obtainable, and receive the rent therefrom and apply such rent to
the Annual Rent and other charges due under this Lease; provided,
however, Tenant shall remain liable for the amount of all rent for
the entire term of this Lease less the monies actually collected
from such re-renting which Landlord shall apply to rent and other
charges due under this Lease, if any. Notwithstanding the
foregoing, in the case of a non-monetary default, if such non-
monetary default is not reasonably capable of being cured within
the original thirty (30) day period, then the period for curing
such default shall be extended for so long as Tenant is proceeding
with reasonable diligence to cure such default. In no event may
Landlord accelerate or otherwise require Tenant to pay rent prior
to the date such rent would otherwise be due.
If a petition in bankruptcy shall be filed by Tenant, or
Tenant shall be adjudicated a bankrupt, or Tenant shall make a
general assignment for the benefit of creditors, or if due to any
proceeding based upon the insolvency of Tenant, a receiver of all
of the property of Tenant shall be appointed and shall not be
discharged within sixty (60) days after such appointment, then
Landlord may terminate this Lease by giving written notice to
Tenant of its intention to do so. Landlord shall use reasonable
efforts to mitigate its damages upon a default by Tenant under
this Lease.
(b) LANDLORD DEFAULT. If Landlord defaults in the compliance with
any provision of this Lease and such default of Landlord continues
uncured for thirty (30) days after written notice from Tenant to
Landlord, then, in addition to all other rights and remedies
provided by law and in equity, Tenant shall have the right to cure
such default and offset the cost of such cure against the rent and
other charges due under this Lease. Notwithstanding the foregoing,
if such default is not reasonably capable of being cured within
thirty (30) days, then the period for curing such default shall be
extended for so long as Landlord is proceeding with reasonable
diligence to cure such default. If any such default by Landlord
continues uncured for sixty (60) days after written notice from
Tenant, then, in addition to its other rights, Tenant shall have
the right to terminate this Lease by written notice to Landlord.
Nothing contained in the foregoing provisions of this subsection
shall limit Tenant's right to cure any default by Landlord
of its replacement, repair or maintenance obligations or the time
limit prescribed pursuant to the terms of this Lease within which
such cure can be effected.
(c) GO-DARK/RECAPTURE. Landlord acknowledges that Tenant
shall have no obligation to continuously operate in the Premises,
however, should Tenant fail to continuously operate for a period
of ninety (90) consecutive days, Landlord may, upon thirty (30)
days' written notice to Tenant (the "Termination Date"), terminate
this Lease, unless Tenant, during such thirty (30) day period,
reopens the Premises for business. In the event Landlord
terminates pursuant to this provision, the Tenant shall be
responsible for all Rent and other charges due under this Lease
through the Termination Date, and following termination, Tenant
and Landlord shall be released from any further obligations under
this Lease.
18. TENANT'S EXCLUSIVE USE/NON-DISTURBANCE. Landlord covenants
that it will not (except as to the Premises) construct, lease or
occupy, or permit to be constructed, leased or occupied, a farm,
ranch or feed retail store on any real property (collectively, the
"Property") which Landlord (or any affiliate or partner of
Landlord, or any entity in which Landlord possesses an interest)
owns, now or during the Term of this Lease, within a twenty (20)
mile radius of the Premises. The covenants and restrictions
contained in this section are for the benefit of the Premises,
shall run with the Property and inure to and pass with the
Premises, and shall be binding upon any and all successive owners
of the Property herein restricted. Landlord covenants that in the
event Landlord shall hereafter sell the Property or any portion
thereof, or any interest therein, it will impose or cause to be
imposed in the documents of transfer a restriction preventing and
prohibiting the grantee or any future owner from using the
Property so sold in violation of the foregoing covenants and
restrictions. At the request of Tenant, Landlord shall record an
instrument or instruments setting forth the covenants contained in
this Section 18. Landlord covenants that in the event of a breach
of the foregoing covenants and restrictions, it will use its best
efforts to enforce such provisions. Notwithstanding the preceding
sentence, in the event a violation of any of the covenants and
restrictions set forth in this section continues for more than one-
hundred eighty (180) days, Tenant, in addition to any other rights
or remedies under law it may have as a result of such violation,
shall have the option to terminate this Lease upon written notice
to Landlord whereupon this Lease and the tenancy created hereunder
shall cease.
19. SURRENDER OF PREMISES. At the expiration of the Term, Tenant
shall leave and surrender the Premises in good order and
condition, excepting reasonable wear and tear, repairs and
replacements required to be made by the Landlord and any loss or
damage by fire, the elements, casualty and as otherwise provided
herein.
20. HOLDOVER. Any holding over after the expiration of the Term
shall create a month-to-month tenancy at the Annual Rent specified
in this Lease (pro-rated on a monthly basis), and shall otherwise
be on the same terms and conditions as specified in this Lease as
far as applicable.
21. SATELLITE COMMUNICATIONS DISC AND EQUIPMENT. Landlord agrees
that during the term of this Lease, Tenant shall have the right to
install a satellite communications disc and related equipment.
Tenant shall do so at its own cost and expense and in accordance
with all
applicable laws, rules and regulations. Additionally, Tenant shall
defend, indemnify and hold Landlord harmless from and against any
claims, costs or expenses incurred by Landlord as a result of such
installation by Tenant. If Tenant shall install such equipment,
Tenant shall be responsible for the maintenance and repair
thereof, at Tenant's sole cost. At the expiration or other
termination of the Lease, said equipment shall remain the property
of Tenant, and may be removed by Tenant, provided that Tenant
shall repair any and all damage caused by such removal.
22. SIGNS. Tenant shall have the right to install, maintain and
replace on the Premises Tenant's standard signs and logos,
including the installation of a pylon sign, the general
specifications for which are set forth in Exhibit F attached
hereto. Landlord warrants that the Permitted Exceptions do not
prohibit Tenant's standard signs and logos. Tenant shall obtain
any and all applicable permits from the locality in which the
Premises are located for the installation, maintenance and
replacement of such signs and logos.
23. ENVIRONMENTAL.
(a) LANDLORD REPRESENTATIONS. Landlord warrants, represents and
covenants that there are no "Regulated Substances" (as defined
herein) in, on, or released or being released from under the land,
including, but not limited to, the Premises, and that the Premises
will remain in that condition during the Term of this Lease,
except to the extent Tenant stores, sells or uses such substances
in its normal course of business. "Regulated Substances" shall
include "hazardous waste", "hazardous substances", "asbestos or
asbestos containing materials", "regulated substances",
"petroleum", "polychlorinated biphenyls", and other substances or
chemicals regulated pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675,
the Solid Waste Disposal Act, 42 U.S.C. 69016991i, the Toxic
Substances Control Act, 15 U.S.C. 2601-2692, and the
regulations promulgated under those federal statutes, and the
analogous and other state environmental laws and regulations.
Landlord specifically represents that there are no asbestos or
asbestos containing materials in the Premises. Landlord shall
comply with all governmental requirements, including, without
limitation, financial responsibility/assurance requirements,
relating to any underground storage tanks located in, on or under
the Premises.
(b) LANDLORD INDEMNIFICATION. Landlord agrees to indemnify, hold
harmless and defend Tenant from any and all claims, damages,
fines, judgments, penalties, costs, liabilities or loss
(including, without limitation, any and all sums paid for
settlement of claims, attorneys' fees, consultant and expert fees)
arising during or after the Term from or in connection with any
inaccuracy in or breach of any covenant, warranty, representation,
or obligation of Landlord set forth in this section.
(c) TENANT INDEMNIFICATION. Tenant shall not cause or permit any
Regulated Substances to be used, stored, generated, or disposed
of, on, in, or about the Premises, except in the ordinary course
of Tenant's business and in compliance with applicable law.
Nothing in this section shall be construed to hold Landlord
responsible for the activities of Tenant or for Regulated
Substances introduced into or onto the Premises by Tenant, and
Tenant agrees to indemnify, hold harmless and defend Landlord from
any and all claims, damages, fines,
judgments, penalties, costs, liabilities or loss (including,
without limitation, any sums paid for settlement of claims,
attorneys' fees, consultant and expert fees) arising during or
after the Term and directly caused by Tenant's introduction of
Regulated Substances into or onto the Premises.
24. MEMORANDUM. Landlord agrees that at any time on request of
the Tenant, it will execute a memorandum of lease (a "Memorandum
of Lease"), and Tenant shall be permitted to record the Memorandum
of Lease, in the appropriate land records of the jurisdiction in
which the Premises is located, at Tenant's option and expense.
25. NOTICES. Notices to Landlord and Tenant shall be sent by (a)
first class mail, postage prepaid, registered or certified mail,
return receipt requested, (b) hand delivery, or (c) overnight mail
service, addressed as follows:
If to Landlord:CDK Associates, LLC
000 X. Xxxxxx, Xxxxx 000
Xxxxx xxxxx, XX 00000
Attn: Xxx Xxxxxxx, Managing Member
If to Tenant: Tractor Supply
Company 000 Xxxxxx
Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Real Estate Department
Copy to: Xxxxxxxx & Xxx, PLC
000 Xxxxxx Xxxxxx,
Xxxxx 0000 Xxxxxxxxx,
XX 00000
Attn: Xxx X. Xxxxx, Esq.
Notices shall be deemed received (a) upon hand delivery, (b)
the next business day if overnight mail service is used, or (c)
when the return receipt is signed by the recipient, or its if the
return receipt is not signed or delivery refused, three (3)
business days after the sender has so deposited such notice in a
U.S. post office or any branch thereof. Either party may designate
a substitute address from time to time, by notice sent in writing
in accordance with the provisions of this section.
26. WAIVER. The parties agree the failure of either party to
insist upon strict observance of any of the terms or conditions of
this Lease at any time shall not be deemed a waiver of such
party's right to insist upon strict observance thereafter.
27. ENTIRE AGREEMENT/SEVERABILITY. This is the entire agreement
and understanding between the parties, written or oral, with
respect to the transaction contemplated by this Lease, and
supersedes any prior negotiations or understandings between the
parties. If any term, covenant or condition of this Lease or the
application thereof shall, to any extent, be held invalid or
unenforceable, the remainder of this Lease or the application
thereof other than those to which
it is held invalid or unenforceable, shall not be affected thereby
and in each term this Lease shall be valid and enforced to the
fullest extent permitted by law.
28. CAPTIONS AND SECTION NUMBERS. The captions and section
numbers appearing in this Lease are inserted only as a matter of
convenience and in no way define the scope or intent of such
sections of this Lease or in any way affect this Lease.
29. MODIFICATION. This Lease may not be modified in any manner
except by an instrument in writing executed by the parties hereto
or their respective successors in interest.
30. APPLICABLE LAW. This Lease shall be construed under the law
of the state in which the Premises are located.
31. RESERVED.
32. WAIVER OF JURY TRIAL; EXEMPLARY DAMAGES. All parties hereby
waive their rights to trial by jury with respect to any dispute
arising under this Agreement. No party shall be awarded punitive
or other exemplary damages respecting any dispute arising under
this Agreement.
33. ATTORNEYS' FEES. The unsuccessful party to any court or other
proceeding arising out of this Agreement shall pay to the
prevailing party all reasonable attorneys' fees and costs actually
incurred by the prevailing party, in addition to any other relief
to which it may be entitled.
34. NO PARTNERSHIP, ETC. This Agreement shall not be construed as
creating a joint venture, partnership, agency, employment
relationship or other enterprise between the parties.
35. COMMISSIONS. Landlord is represented by Xxx Xxxxxxx, Managing
Member (the "Broker"). All fees and commissions due the Broker in
connection with this Lease transaction shall be paid by Landlord.
Landlord agrees to indemnify and hold Tenant harmless against any
such fees or commissions due the Broker (including all costs and
attorneys fees). Each party hereto represents and warrants unto
the other that there are no claims for commissions or finder's
fees in connection with the negotiation or execution of this
Lease, except amounts due the Broker which shall be paid by
Landlord. Each party agrees to indemnify and save the other
harmless against all liabilities arising from any such claim by,
through or under said party (including, without limitation, cost
of attorney's fees in connection therewith).
36. ESTOPPEL CERTIFICATE. Tenant shall, within ten (10) business
clays of a written request from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing:
(i) certifying that the Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification
and certifying that this Lease as so modified, is in full force
and effect) and the date to which rent and other charges are paid
in advance, if any;
(ii) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed; and (iii) such other items as
Landlord may reasonably request. Such statement shall run in favor
of and be in a form as may be reasonably acceptable to Landlord
and Tenant.
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, this agreement has been duly executed as
of the day and year first above written.
LANDLORD:
CDK ASSOCIATES LLC
By: /s/ Xxxxxx X Xxxxxxx
Title: Managing Member
Fed I.D: 00-0000000
TENANT:
TRACTOR SUPPLY COMPANY,
a Delaware corporation
By: /s/ Xxxx Xxxxx
Title: Vice President
