EXHIBIT 10.5
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made as of________________, 20__
(the "Commencement Date"), between CROSS COUNTRY PROPERTIES III, LLC, a Georgia
limited liability company ("Landlord"); and ADVANCE STORES COMPANY,
INCORPORATED, a Virginia corporation ("Tenant"),
In consideration of their mutual covenants and other valuable
consideration, the adequacy and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:
1) LEASED PREMISES.
Subject to and in accordance with the terms hereof, Landlord hereby leases to
Tenant, and Tenant leases from Landlord, the premises situated at U.S. Highway
29 (A.K.A. State Route 14, A.K.A. Roosevelt Highway), in the City Palmetto,
Xxxxxx County, Georgia consisting of 38,822 square feet which is outlined in red
on a survey dated February 9, 2004, prepared by Site Design Services, Inc. (the
"Survey"), which Survey is attached hereto as Exhibit "A" and is incorporated
herein by this reference (together with all appurtenances, rights, interest,
easements and privileges in any way pertaining thereto, the "Land"), together
with the improvements to be constructed on the Land by Landlord pursuant to this
Lease, such improvements to consist of a building space of approximately 7,000
square feet of gross leasable floor area (the "Building") and the surrounding
parking, landscape and sidewalk areas (including any and all striping of such
parking areas) (collectively, the "Other Improvements"), all as identified on
the site plan attached hereto as Exhibit "B." Attachment 1 and incorporated
herein by this reference (the "Site Plan"). The Land, the Building and the Other
Improvements, together with the "Tenant's Improvements" (as hereinafter
defined), if any, shall hereinafter be collectively referred to as the "Leased
Premises."
2) CONSTRUCTION OF LEASED PREMISES.
Landlord shall, at its sole cost and expense, perform the "Work" (as defined in
the Construction Provisions) in accordance with the construction provisions
attached hereto as Exhibit "B" (the "Construction Provisions").
3) USE.
a) Tenant may use the Leased Premises for the display, storage and sale of
automotive parts, accessories, supplies and/or maintenance items or for any
and all other lawful uses; provided, however, in no event shall the Leased
Premises be used for any of the following (collectively, the "Prohibited
Uses"):
i) trailer court, junk yard, waste material collection facility, or
auction house;
ii) establishments providing adult-type entertainment or displays of a
variety involving or depicting nudity or lewd acts;
iii) a massage parlor;
iv) a funeral home;
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v) a facility for the sale of paraphernalia for use with illicit
drugs;
vi) a facility for the sale or display of pornographic (as determined
by community standards for the area in which the Leased Premises is
located) material;
vii) overnight parking of campers, mobile homes, boats or tractor
trailers, except for such trailers as are a part of Tenant's business
operations;
viii) any exploration, drilling or similar operation of any kind;
ix) dance hall, bar, restaurant, off-track betting business, billiard
or pool hall, bingo or similar games of chance, game arcade, nightclub
or flea market;
x) any use which involves the raising, breeding or keeping of any
animals or poultry;
xi) any dangerous or unsafe uses;
xii) any industrial uses, including, without limitation, any
manufacturing, smelting, rendering, brewing, refining, chemical
manufacturing or processing, or other manufacturing uses;
xiii) any mining or mineral exploration or development except by
non-surface means;
xiv) drug or alcohol rehabilitation or treatment center;
xv) abortion clinic;
xvi) any place of religious worship such as a church, temple,
synagogue, mosque, or the like; or
xvii) any use restriction set forth in the Permitted Encumbrances as
hereinafter defined.
b) Tenant may operate its business at the Leased Premises under any name of
its choosing or permitted by law and may set its hours and days of
operation, if any, in its sole discretion. Notwithstanding anything
contained herein to the contrary, (i) nothing in this Lease shall
constitute an agreement of Tenant (express or implied), directly or
indirectly, to open or operate a business in the Leased Premises, the
rentals received hereunder constituting the entire consideration for
Landlord's entering into this Lease, and (ii) Tenant may, at any time
during the "Term" (as hereinafter defined), without Landlord's consent,
cease business operations at and/or remove any and all of Tenant's
"Personal Property" (as hereinafter defined) from the Leased Premises.
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4) TERM/EXTENSIONS.
a) The initial term of this Lease (the "Initial Term") shall commence on
the Commencement Date and shall terminate on the last day of the month in
which occurs the fifteenth (15") annual anniversary of the "Rent
Commencement Date" (as hereinafter defined). The Rent Commencement Date
shall be the earlier to occur of (i) the date that is forty-five (45) days
following the "Completion Date" (as defined in the Construction
Provisions) or (ii) the date on which Tenant opens for business to the
public at the Leased Premises. Notwithstanding the foregoing, in the event
the following conditions have not been satisfied prior to such Rent
Commencement Date, then Tenant may, at Tenant's option, pay no Basic Rent
or any other charges due under this Lease to Landlord until such time as
such conditions have been satisfied or waived (whereupon Tenant shall pay
all accrued Basic Rent and/or other charges due hereunder at the time of
such satisfaction or waiver):
(i) Landlord has delivered to Tenant all applicable subordination,
non-disturbance and attornment agreements executed by any and all
Mortgagees and/or Ground Lessors with respect to the Leased Premises
in the form attached to this Lease as Exhibit "C"; and
(ii) Landlord has delivered to Tenant, and Tenant has approved, those
certain easement agreements, declarations, covenants, restrictions,
rules, regulations and other documents or agreements affecting the
Leased Premises set forth in Exhibit "H" as Permitted Encumbrances,
and Landlord has placed of record and delivered a certified copy to
Tenant of all such agreements and documents.
Landlord and Tenant shall confirm the Rent Commencement Date by a
supplemental commencement date agreement, the form of which agreement is
attached hereto as Exhibit "D". The period of time from the Commencement
Date until the Rent Commencement Date shall hereinafter be referred to as
the "Construction Term."
b) In addition to the Initial Term, Tenant shall have the option (each such
right referred to herein as a "Renewal Option") to renew and extend this
Lease for three (3) consecutive five (5) year periods (each such period
referred to as an "Option Period" and collectively as the "Option Periods")
immediately following the Initial Term, during which Option Period(s) all
the provisions, conditions and covenants of this Lease shall continue in
full force and effect except that "Basic Rent" (as hereinafter defined)
payable for the Option Period(s) shall be as set forth in Section 5(a) of
this Lease. Each Renewal Option shall be deemed exercised automatically
unless Tenant shall give Landlord written notice of its election not to
exercise any such Renewal Option at least one hundred eighty (180) days
prior to the expiration of the Initial Term or any then-current Option
Period, as applicable.
c) From and after the date on which a Renewal Option is exercised,
references to the words "Term" in this Lease shall include the Option
Period(s) by which the Term shall have been extended. In the event this
Lease is canceled or terminated, the expiration date of this Lease shall be
that date on which this Lease is canceled or terminated. The term "Lease
Year" shall mean each successive period of twelve (12) consecutive calendar
months, commencing on the anniversary of the Rent Commencement Date, except
that the first Lease Year shall commence on the Rent Commencement Date.
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5) RENT.
a) Basic Rent. Commencing on the Rent Commencement Date, during each Lease
Year, Tenant shall pay Landlord the following monthly sums ("Basic Rent")
which shall be payable, in advance, on the first day of each month:
Initial Term:
Years 1-10 $6,446.00 per month
Years 11-15 $7,090.58 per month
First Option Period $7,445.17 per month
Second Option Period $7,817.42 per month
Third Option Period $8,208.25 per month
If the Rent Commencement Date shall be a day other than the first day of a
month, the amount of Basic Rent shall be prorated for the balance of such
month on a per diem basis, and the prorated Basic Rent for such month shall
be due and payable on the Rent Commencement Date.
b) Tenant shall have no obligation to pay Basic Rent or any other charges
due under this Lease to any party other than Landlord unless and until
Tenant has received notice of a change given pursuant to Section 24 below.
In the event such notice is given in connection with a transfer or sale of
Landlord's interest in the Leased Premises and/or this Lease, such notice
shall not be binding upon Tenant until Tenant has received (i) a copy of
the instrument assigning or transferring Landlord's interest, (ii) a letter
specifying the addresses to which rent and notices are to be forwarded to
such assignee or transferee and (ii) a W-9 form executed by the assignee or
transferee. The instrument assigning or transferring Landlord's interest
shall evidence the fact that such assignee or transferee has assumed all of
Landlord's obligations under this Lease and has acquired sufficient title
to the Leased Premises to enable such assignee or transferee to perform
such obligations; provided, however, this provision shall not be applicable
to any transfer given as security for a loan, and no transfer shall release
a prior Landlord from any liability hereunder that accrued during the
period of such prior Landlord's ownership of the Leased Premises.
6) WARRANTIES.
a) Landlord warrants and represents that, as of the Commencement Date and
during the Term:
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i) Landlord (1) is a limited liability company duly formed, validly
existing and in good standing under the law of the State of Georgia,
(2) is qualified to do business in and is in good standing under the
laws of the State of Georgia in which the Land is located (the
"State"), and (3) has full right and power to execute and perform this
Lease and to grant the estate demised herein; Landlord's Managing
Member, who is acting as its signatory for this Lease, is duly
authorized and empowered to act for and on behalf of the limited
liability company, and this Lease, including its execution by
Landlord, is enforceable and binding upon Landlord and has been
authorized by all requisite action on behalf of the limited liability
company. Upon request by Tenant, Landlord shall furnish to Tenant (i)
written evidence of Landlord's authority to complete this transaction
and empowering those executing documents on Landlord's behalf to do so
and (ii) Landlord's certificate of good standing in the State;
ii) Landlord is either currently the owner of the Land in fee simple
absolute or will become such owner; this Lease is and shall be a first
lien on the Leased Premises subject only to any "Mortgage" (as
hereinafter defined) or "Ground Lease" (as hereinafter defined) to
which this Lease may be subordinated as set forth in Section 20 below;
and neither the "Permitted Encumbrances" (as hereinafter defined) nor
any other encumbrances grant any other party the rights to use any
parking spaces located on the Leased Premises;
iii) Neither the execution and delivery by Landlord of this Lease nor
the performance by Landlord of the terms hereof will (x) conflict with
or violate any other agreement or instrument or any writ, order or
decree to which Landlord is a party or by which Landlord is bound or
(y) be precluded by or cause a breach of any agreement, mortgage,
contract or other instrument or document to which Landlord is a party
or which encumbers or otherwise adversely affects the Leased Premises;
and
iv) This Lease represents the valid, binding obligation of Landlord,
enforceable against Landlord in accordance with its terms.
b) Landlord warrants and represents that, as of the Commencement Date:
i) The Leased Premises is presently, or will be prior to commencement
of the Work, properly subdivided in compliance with all applicable
laws and regulations and constitutes a tax parcel separate from any
other real property; the zoning classification of, and all other
governmental regulations pertaining to, the Leased Premises shall
permit the construction by Landlord as provided by this Lease and the
use of the Leased Premises by Tenant in accordance with the terms of
this Lease; and the number of parking spaces totaling thirty-nine (39)
spaces as shown on the Site Plan shall be provided in the parking
area;
ii) Landlord's fee simple interest in the Leased Premises is free and
clear of any mortgages, deeds, encumbrances, declarations, easements,
agreements, leases,
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tenancies, restrictions, rules or regulations which affect or restrict
or could affect or restrict the use or intended use of the Leased
Premises by Tenant, its employees, customers, invitees, successors
and/or assigns, except those matters set forth on Exhibit "H" attached
hereto and entitled "Permitted Encumbrances" (the "Permitted
Encumbrances"); and
iii) The execution and delivery of this Lease by Landlord has been
duly authorized by all required corporate action.
c) Tenant represents and warrants to Landlord that:
i) Tenant (1) is a corporation duly formed, validly existing and in
good standing under the law of the Commonwealth of Virginia and (2) is
qualified to do business in and is in good standing under the laws of
the State;
ii) Neither the execution by Tenant of this Lease nor the performance
by Tenant of the terms hereof will conflict with or violate any other
agreement or instrument or any writ, order or decree to which Tenant
is a party or by which Tenant is bound; and
iii) The execution and delivery of this Lease by Tenant has been duly
authorized by all required corporate action, and this Lease represents
the valid, binding obligation of Tenant, enforceable against Tenant in
accordance with its terms.
7) TENANT'S FURNISHINGS. FIXTURES. EQUIPMENT AND OTHER PERSONAL PROPERTY.
Tenant, at its sole cost and expense, may supply and install anywhere in or on
the Leased Premises any furnishings, fixtures, equipment and/or other personal
property, including a satellite dish and any necessary cables or supporting
equipment (collectively, "Personal Property"), which it deems necessary for its
use of the Leased Premises; provided, however, that Tenant shall repair, at its
own expense, any damage to the Leased Premises occasioned by such installation.
Landlord and Tenant recognize that Tenant may commence the installation of its
Personal Property prior to the Completion Date, as defined in the Construction
Provisions. Any such Personal Property supplied and installed in the Leased
Premises, except that which is permanently attached, shall be and remain the
property of Tenant. Such delivery, installation and placement of Personal
Property in the Leased Premises by Tenant shall not constitute final acceptance
or actual possession of the Leased Premises by Tenant, and shall not obligate
Tenant to pay Basic Rent or other charges prior to the Rent Commencement Date
set forth in Section 4(b) of this Lease. It is agreed by Landlord and Tenant
that upon and during delivery of such Personal Property by Tenant, Landlord
shall provide Tenant with a secure structure and access to the Leased Premises.
Any damage to the Leased Premises occasioned by the removal of such Personal
Property shall be repaired by Tenant at its sole cost and expense, unless such
damage is caused by Landlord's negligence, intentional misconduct, or willful
acts, or the negligence, intentional misconduct, or willful acts of Landlord's
agents in which event such damage shall be repaired by Landlord at its sole
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sole cost and expense. Risk of loss as to such Personal Property shall remain
with Tenant at all times prior to and during the Term. Tenant shall indemnify,
defend, and save Landlord harmless from and against all claims, suits,
liabilities and expenses, including reasonable attorneys' fees, for damage or
injury to persons or property directly resulting from Tenant's negligent
installation of Personal Property in the Leased Premises, except to the extent
that such claim, suit, liability or expense is caused, in whole or in part, by
Landlord's negligence, intentional misconduct, or willful acts, or the
negligence, intentional misconduct, or willful acts of Landlord's employees,
agents or contractors.
8) TENANT'S ALTERATIONS AND SIGNS.
a) Tenant shall have the right, but not the obligation, at its sole cost
and expense and at any time, without Landlord's consent, to make
non-structural improvements, alterations and replacements in, on or to the
Leased Premises. Tenant agrees that such improvements, alterations,
additions and replacements will (i) be made in a good and workmanlike
manner by licensed contractors and (ii) comply with all applicable laws,
and Tenant shall defend, indemnify and hold Landlord harmless from any and
all costs, damages and expenses resulting therefrom, except to the extent
that such costs, damages or expenses are caused by Landlord's negligence,
intentional misconduct, or acts or omissions, or the negligence,
intentional misconduct, or acts or omissions of Landlord's agents or
contractors. Tenant shall not make any structural improvements,
alterations, additions or replacements without first obtaining Landlord's
written consent thereto, which consent shall not be unreasonably withheld,
conditioned or delayed. If Landlord's consent is required and if plans and
specifications for such work must be prepared in order for Tenant to obtain
a building permit for such work, then conceptual plans and specifications
for such work shall be provided to Landlord prior to commencement of any
such work. Landlord shall be deemed to have consented to such work if
written notice of disapproval, with reasons specified, is not received by
Tenant within thirty (30)days following Tenant's delivery of such plans and
specifications to Landlord. Without cost or expense to Landlord, Landlord
shall cooperate with Tenant in Tenant's efforts to obtain any and all
licenses, building permits, certificates of occupancy or other governmental
approvals which may be required in connection with any such improvements,
alterations, additions and replacements, and Landlord shall execute,
acknowledge and deliver any documents reasonably required in furtherance of
such purposes.
b) Tenant may erect, at its cost and in its sole discretion, an
announcement sign on the Leased Premises, the location, size and style of
which shall be in Tenant's sole and absolute discretion, announcing
Tenant's future business at the Leased Premises. Tenant may, at its cost
and in its sole discretion, but subject to compliance with all applicable
governmental regulations, install (1) any and all exterior signs on the
exterior walls and/or roof of the Leased Premises as it deems necessary and
(2) any and all pylon or monument signs on the Leased Premises as it deems
necessary. Tenant's ability to erect at the Leased Premises no less than
185.64 square feet of exterior signage in the color(s), size(s) and
location(s) shown on Exhibit B, Attachment II (the "Elevations") and
Exhibit "1-1" and no less than a 60 square foot pylon sign in the color(s),
size(s) and location(s) shown in Exhibit "1-2" attached hereto and on the
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Site Plan is a condition precedent to its obligations under this Lease and,
in that regard, Tenant shall apply for all necessary governmental permits
for its desired signage within a reasonable period of time after the
Commencement Date of this Lease and shall reasonably diligently pursue such
application thereafter. In the event Tenant does not receive all necessary
governmental permits for Tenant's desired signage by the date Landlord has
received the "Approvals" (as defined in Section 3(a) of the Construction
Provisions), Tenant, at its option, may terminate this Lease by giving
written notice to Landlord. If local laws do not permit the signage that
Tenant desires to erect, then Tenant may, at its expense, seek a sign code
variance to allow Tenant's signage. Landlord shall execute any documents,
forms or applications necessary for Tenant to obtain all necessary zoning
approvals, variances or special exceptions for any and all of Tenant's
signage and shall promptly execute all documents required in connection
therewith. Notwithstanding anything contained herein to the contrary,
Tenant shall be entitled, without Landlord's consent, but subject to
compliance with all applicable governmental regulations, to replace any and
all of its signs with signage consistent with Tenant's then-current
prototypical sign plans. In the event of an assignment or subletting as a
result of which Tenant is no longer occupying any portion of the Leased
Premises, Tenant's signs may be replaced by signs identifying the
appropriate assignee or subtenant, provided that the specific design of
such signage shall be subject to Landlord's consent, which consent shall
not be unreasonably withheld, conditioned or delayed.
c) Any alterations made by Tenant to the Leased Premises shall hereinafter
be referred to as the "Tenant's Improvements." Except for Tenant's Personal
Property, the Tenant's Improvements that are permanently attached or
affixed to the Leased Premises shall become the property of Landlord upon
the expiration of this Lease.
9) ASSIGNMENT AND SUBLEASING.
Tenant shall have the right to sublet, assign, transfer, reassign and grant
concessions or licenses (a "Transfer") in all or any part of the Leased Premises
and any of Tenant's rights and obligations under this Lease, without Landlord's
consent. In the event of such a Transfer, Tenant shall remain liable for all of
Tenant's obligations to Landlord arising hereunder so long as this Lease is not
changed, modified or amended in any respect by Landlord and any transferee.
Should Tenant wish to be relieved of its obligations hereunder upon a Transfer,
Landlord's prior consent to a Transfer shall be required, which consent shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding the
immediately preceding sentence, in the event any assignee hereunder or
assignee's guarantor subsequent to an assignment has a net worth calculated in
accordance with generally accepted accounting principles equal to or greater
than the net worth of Advance Stores Company, Incorporated, as of the end of the
fiscal year in which the Commencement Date of this Lease occurs, Landlord's
consent to such assignment shall not be necessary, and Tenant shall thereafter
automatically (and without any action by Landlord) be relieved of any further
obligations under this Lease. Landlord acknowledges and agrees that Landlord's
conditioning of the granting of its consent upon obtaining (i) a material
amendment or modification to the terms of this Lease or (ii) monetary
compensation, shall be deemed unreasonable. In the event Tenant shall be
reorganized, merged or consolidated with any other corporation, limited
liability company or other business entity, or shall sell all or substantially
all of its assets, any resulting or surviving corporation, limited liability
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company or other business entity, or any other person, which shall, as a result
of such reorganization, merger, consolidation or sale, succeed to substantially
all of the assets or the business of Tenant, and which shall assume all of the
liabilities and obligations of Tenant under this Lease, shall automatically and
without the necessity of further assignment or any other act become and be
Tenant under this Lease in accordance with and subject to all of the terms,
provisions and conditions hereof. Tenant shall give Landlord notice of any
Transfer, such notice to include a copy of the original instrument evidencing
such Transfer; provided, however, that Tenant's failure to provide such notice
shall not be an "Event of Default" (as hereinafter defined) by Tenant hereunder
or give Landlord the right to exercise any right or remedy against Tenant
hereunder.
10) MAINTENANCE AND REPAIRS:
a) Subject to Landlord's repair and restoration obligations described in
Sections 10(b) and 14 below, Tenant shall, at its cost, during the Term
(excluding the Construction Term):
i) Maintain, repair and/or replace, in good condition, ordinary wear
and tear excepted, each and every portion of the Leased Premises
(including, without limitation, all exterior signs related to safety
required by law [including handicapped parking signs and fire lane
signs] and the exterior of the Building) except for any items the
maintenance, repair or replacement of which are Landlord's
responsibility hereunder; and
ii) Keep the Leased Premises in a reasonably clean and neat condition
and not permit the accumulation of any trash, rubbish or garbage
(except as accumulated in containers awaiting collection or disposal)
in, on or about any part of the Leased Premises and arrange for
collection or disposal of accumulated trash, rubbish and garbage from
the Leased Premises.
b) Notwithstanding the provisions of Section 10(a) above and anything
contained herein to the contrary, Landlord shall be responsible, at its
sole cost and expense, for the following maintenance, repairs and/or
replacements to the Leased Premises during the Term:
i) any and all maintenance, repairs and/or replacements to the slab,
foundation and structure of the Leased Premises (including, without
limitation, repairing any cracks or other damage thereto, but
specifically excluding painting of the exterior walls unless painting
is required as a result of Landlord's failure to maintain, repair
and/or replace the slab, foundation or structure as provided herein);
ii) any and all maintenance, repairs and/or replacements to the
parking area of the Leased Premises in the event that Landlord fails
to deliver the certificate as to the parking area of the Leased
Premises as required by Section 2(c) of the Construction Provisions or
fails to construct the parking area in accordance with the design
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standards therefor as required by Section 2(b) of the Construction
Provisions;
iii) any and all maintenance, repairs and/or replacements to the roof
of the Leased Premises, in the event that Landlord fails to deliver
the certificates and warranties as to the roof of the Leased Premises
required by Section 2(d) of the Construction Provisions;
iv) any and all maintenance, repairs and/or replacements to the
heating, ventilation and air-conditioning system of the Leased
Premises (the "HVAC"), in the event that Landlord fails to deliver the
certificates as to the HVAC as required by Section 2(e) of the
Construction Provisions;
v) any and all maintenance, repairs or replacements which become
necessary as a result of Landlord's negligence, intentional
misconduct, or acts or omissions, or the negligence, intentional
misconduct, or acts or omissions of Landlord's agents or contractors;
and
vi) any and all maintenance, repairs and/or replacements to the Leased
Premises which (i) are required during the first Lease Year of the
Term due to the original construction of the Leased Premises or (ii)
are made necessary by reason of defects in the workmanship or
materials used in the construction of any portion of the Leased
Premises (except for any portion of the Leased Premises that was
constructed by Tenant) or are due to the settling of the Leased
Premises.
c) With regard to those items which are Landlord's responsibility under
Section 10(b) above, if an emergency situation occurs, Tenant shall make
all reasonable efforts to contact Landlord by telephone or facsimile to
advise Landlord of the need for such maintenance, repair or replacement. If
after making reasonable efforts to contact Landlord, either Tenant is
unable to contact Landlord or if Tenant succeeds in contacting Landlord,
and Landlord fails to undertake action to correct the emergency situation
within twenty-four (24) hours, Tenant may perform such maintenance, repair
or replacement as Tenant deems necessary. Within thirty (30) days after
written notice from Tenant (accompanied by an invoice or other reasonable
evidence of the costs to be reimbursed), Landlord shall pay Tenant an
amount equal to the actual, out-of-pocket costs incurred by Tenant in the
performance of such maintenance, repair and/or replacement. If Landlord
fails to pay to Tenant such costs within such thirty (30) day period, then
Tenant may deduct the amount of such costs from Basic Rent and any other
charges owed by Tenant to Landlord. For purposes of this Section 10(c), an
"emergency situation" means a condition or state of facts which if not
corrected would result in further damage to the Leased Premises or its
contents or personal injury or damage to any other property or which would
in any way prevent Tenant from conducting its business at the Leased
Premises in its customary manner. The provisions of this Section 10(c)
shall control over any conflicting provisions contained in this Lease.
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d) Landlord shall protect, defend, indemnify and hold Tenant harmless from
all losses, damages, liabilities, costs and expenses (including reasonable
attorneys' fees and court costs) incurred for work, labor, repairs,
alterations, improvements, services and/or materials supplied to the Leased
Premises by or at the direction of Landlord, or which may occur, result
from or arise out of the failure of Landlord during the Term to make
properly any required repairs or perform any maintenance which is the
responsibility of Landlord under this Lease, except to the extent that such
losses, damages, liabilities, costs and/or expenses arise out of Tenant's
negligence, intentional misconduct, or acts or omissions, or the
negligence, intentional misconduct, or acts or omissions of Tenant's agents
or contractors. Tenant shall protect, defend, indemnify and hold Landlord
harmless from all losses, damages, liabilities, costs and expenses
(including reasonable attorneys' fees and court costs) incurred for work,
labor, repairs, alterations, improvements, services and/or materials
supplied to the Leased Premises by or at the direction of Tenant, or which
may occur, result from or arise out of the failure of Tenant during the
Term to make properly any required repairs or perform any maintenance which
is the responsibility of Tenant under this Lease, except to the extent that
such losses, damages, liabilities, costs and/or expenses arise out of
Landlord's negligence, intentional misconduct, or acts or omissions, or the
negligence, intentional misconduct, or acts or omissions of Landlord's
agents or contractors.
e) Landlord hereby assigns to Tenant all of Landlord's interest in, and
rights under (including rights to enforce), all warranties and guaranties
received in connection with the Work or any other work, maintenance,
repairs and/or replacements performed by, or at the direction of, Landlord
in, on or at the Leased Premises; provided, however, that Landlord shall
retain such interest in and rights under such warranties and guaranties as
are necessary or desirable for Landlord to complete any maintenance,
repairs and/or replacements to the Leased Premises which (i) are required
during the first Lease Year of the Term due to the original construction of
the Leased Premises or (ii) are made necessary by reason of defects in the
workmanship or materials used in the construction of any portion of the
Leased Premises (except for any portion of the Leased Premises that was
constructed by Tenant) or are due to the settling of the Leased Premises,
as provided in Section 10(b)(vi) above.
11) UTILITIES.
Tenant agrees to pay the charges and all required deposits for all utility
services furnished to and used by Tenant in the Leased Premises during the Term
directly to the utility companies providing such services, excluding any and all
connection fees, hook-up charges, impact fees and other similar costs related to
the initial start-up expenses for providing such services to the Leased
Premises, all of which costs and expenses shall be paid by Landlord. Subject to
applicable law, Tenant shall be entitled to select the utility service provider
which shall provide water, electric, gas, cable and telecommunication services
to the Leased Premises.
12) INSURANCE; INDEMNIFICATION.
a) During the Term (excluding the Construction Term), Tenant shall, at its
sole cost and expense, obtain and maintain property insurance covering the
Leased Premises in an amount not less than the full replacement cost
thereof, with such deductibles and retentions as determined by Tenant
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in its sole and absolute discretion. Such insurance shall be provided by
companies authorized to do business in the State.
b) During the Term (excluding the Construction Term) Tenant shall maintain
with respect to the Leased Premises a policy of commercial general
liability insurance, which insurance shall stipulate limits of liability of
not less than $2,000,000 each occurrence, single limit bodily injury and/or
property damage combined (with such deductibles and retentions as
determined by Tenant in its sole and absolute discretion), and shall be
provided by companies authorized to do business in the State.
c) Tenant shall, within fifteen (15) days after receipt of written request
therefor by Landlord, provide Landlord with (i) evidence of such property
insurance and (ii) a certificate of such commercial general liability
insurance, each naming Landlord and Landlord's Mortgagee as additional
insureds or loss payees, as applicable, and providing that the applicable
coverage shall not be cancelled without thirty (30) days notice to the
holder of such evidence or certificate, as applicable.
d) Notwithstanding anything to the contrary contained herein, Tenant shall
have the right to self-insure against any of the risks or portions thereof
set forth in this Section 12, provided Tenant then has a reported net worth
(calculated in accordance with generally accepted accounting principles),
as of the end of Tenant's most recent quarterly reporting period, of not
less than One Hundred Million Dollars ($100,000,000).
e) Landlord shall maintain with respect to the Leased Premises a policy of
commercial general liability insurance, which insurance shall stipulate
limits of liability of not less than $2,000,000 each occurrence, single
limit bodily injury and/or property damage combined, and shall be provided
by companies authorized to do business in the State. Such policies of
insurance shall name Tenant as an additional insured. Landlord shall,
within a reasonable period of time after receipt of written request
therefor by Tenant, provide a certificate of such commercial general
liability insurance evidencing Tenant as an additional insured on such
policy and providing that the applicable coverage shall not be cancelled or
modified without thirty (30) days notice to the holder of such certificate,
f) During any period in which Landlord or Tenant is conducting construction
activities at, in or on the Leased Premises, such party shall keep, or
cause its general contractor to keep, in full force and effect, with regard
to the Leased Premises, in form reasonably acceptable to the other party,
at least the minimum insurance coverages set forth below:
i) Worker's Compensation - Statutory Limits; Employers Liability
-$2,000,000;
ii) Automobile Liability for all vehicles with limits of $1,000,000;
and
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iii) Commercial General Liability to include premises operations and
products/completed operations coverage with limits of $3,000,000.
Additionally, such party shall keep or require its general contractor to
keep in full force and effect a policy of builder's risk insurance covering
loss or damage to the Leased Premises for the full replacement cost of all
such construction. To the fullest extent the other party has an insurable
interest, such liability policy shall name the other party as an additional
insured and such builder's risk policy shall name the other party as a loss
payee.
g) Any insurance coverage enumerated in this Lease may be effected by a
blanket policy or policies of insurance or under so-called "multi-peril" or
"package" insurance policies, provided that the total amount of insurance
available with respect to the Leased Premises and Tenant's or Landlord's
liability hereunder shall be at least the equivalent of separate policies
in the amounts herein required, and provided further that in other respects
any such policy or policies shall comply with the provisions of this Lease.
Landlord shall not be entitled to self-insure any of the insurance
coverages recited herein. An "umbrella" policy may be provided and utilized
by either party to increase the limit provided by any individual or blanket
policies in lower amounts, and the combined occurrence and aggregate limits
provided by all such policies with respect to the Leased Premises and
Tenant's or Landlord's liability hereunder shall be satisfactory provided
that the terms and conditions of such policies otherwise comply with the
provisions of this Lease.
h) Notwithstanding anything to the contrary contained herein, Landlord and
Tenant hereby release each other, to the extent of their agreed-upon
insurance coverage, from any and all liability for any loss or damage
caused by fire or any other casualty insured against, even if such fire or
other casualty shall be brought about by the fault or negligence of the
other party, or any persons claiming under such other party.
i) Landlord hereby agrees to exonerate, protect, defend, indemnify and hold
Tenant and its officers, directors, stockholders, members, beneficiaries,
partners, representatives, agents and employees harmless from and against
any and all losses, damages, claims, suits or actions, judgments and costs
(including reasonable attorneys' fees) arising out of any injury to or
death of persons or damage to property on or about the Leased Premises
caused by the intentional or negligent acts or omissions of Landlord or its
employees, agents or contractors. Tenant agrees to exonerate, protect,
defend, indemnify and hold Landlord and its officers, directors,
stockholders, members, beneficiaries, partners, representatives, agents and
employees harmless from and against any and all losses, damages, claims,
suits or actions, judgments and costs (including reasonably attorneys'
fees) arising out of any injury to or death of persons or damage to
property on or about the Leased Premises caused by the intentional or
negligent acts or omissions of Tenant or its employees, agents or
contractors.
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13) REAL ESTATE TAXES.
a) Commencing on the Rent Commencement Date, during the Term, Tenant shall
reimburse Landlord for all "Real Estate Taxes" (as hereinafter defined). If
the Rent Commencement Date occurs or the Term terminates during any part of
a calendar year, Tenant shall be responsible for such Real Estate Taxes for
only that portion of the calendar year for which Tenant is responsible to
pay Basic Rent hereunder. However, the amount of Real Estate Taxes
attributable to the Leased Premises for which Tenant shall reimburse
Landlord in part shall be less any abatements, discounts or refunds
thereon. In paying such Real Estate Taxes, Landlord agrees to take full
advantage of any and all available discounts, and Tenant shall not be
obligated to pay any portion of any penalty or interest for delinquent
payment, nor shall Tenant be obligated to pay any portion of sums owed by
Landlord due to failure of Landlord to take advantage of any discount.
Tenant shall reimburse Landlord for such Real Estate Taxes within thirty
(30) days of receipt from Landlord of a receipted tax xxxx (or in the
alternative copy of the tax xxxx and a copy of Landlord's check to the
appropriate governmental agency or authority) evidencing Landlord's payment
thereof to the taxing authority.
b) Tenant shall have the right, at Tenant's sole expense, to contest the
amount or validity, or otherwise seek an exemption or abatement, of any
Real Estate Taxes or to seek a reduction in the valuation of the Leased
Premises assessed for purposes of Real Estate Taxes by appropriate
proceedings diligently conducted in good faith, provided that (i) Tenant
shall first have notified Landlord in writing of its intent to do so and
(ii) such contest will not result in the foreclosure, loss or forfeiture of
the Leased Premises, or any portion thereof. In any instance where any such
action or proceeding is being undertaken by Tenant, Landlord shall (i)
cooperate with Tenant, (ii) execute any and all documents required in
connection therewith and (iii) if required by any law, rule or regulation
of the taxing authority, shall join with Tenant in the prosecution thereof.
Upon the termination of the proceedings set forth above (unless the taxing
authority requires that Real Estate Taxes be paid under protest prior to
commencement of such proceedings), Tenant shall pay the applicable Real
Estate Taxes as finally determined in such proceedings, the payment or
partial payment of which may have been deferred during the prosecution of
such proceedings. Tenant shall be entitled to a refund of any overpayment
of Real Estate Taxes relating or allocable to the Leased Premises, as well
as a reimbursement from the appropriate taxing authority of all costs, fees
and expenses it incurs in such protest or reassessment.
c) For purposes of this Lease, the term "Real Estate Taxes" shall mean all
general real estate taxes and assessments and other ad valorem taxes, rates
and levies paid upon or with respect to the Leased Premises for a calendar
year or a portion thereof to any governmental agency or authority and all
charges specifically imposed in lieu of any such taxes, but specifically
excluding "roll-back" taxes or other similar land use charges. Nothing
contained in this Lease shall require Tenant to pay any local, county,
municipal, state or federal income, franchise, corporate, estate,
inheritance, succession, capital levy, business or transfer tax of
Landlord, or any local, county, municipal, state or federal income,
14
profits, gross receipts, sales or renewal tax or charge upon the rent or
other charges payable by Tenant under this Lease.
d) Landlord and Tenant understand and acknowledge that certain credits,
exemptions, refunds or abatements against tax obligations of Tenant and/or
Landlord, whether with respect to Real Estate Taxes, personal property
taxes, sales taxes, use taxes, gross receipts taxes, income taxes, payroll
taxes, value added taxes or other taxes (collectively, "tax benefits"), as
well as incentive payments or credits directly or indirectly from
governmental authorities ("incentive payments") may become available as a
result of the construction, use, occupancy or conduct of Tenant's business
at the Leased Premises, or the decision of Tenant to establish and/or
operate a business at the Leased Premises. The full amount of such tax
benefits and incentive payments shall be the property of Tenant. In the
event that any such tax benefit or incentive payment is paid to, accrues to
the benefit of, or is otherwise received by Landlord, at Tenant's option:
i) Landlord shall immediately account for and pay over the full amount
of such tax benefit or incentive payment to Tenant; or
ii) Tenant may offset the full amount of such tax benefit or incentive
payment against Basic Rent and any other charges payable by Tenant to
Landlord hereunder.
Landlord shall cooperate with Tenant and execute any documents, forms, or
applications as reasonably requested by Tenant in order to enable Tenant to
obtain any tax benefits or incentive payments directly available to Tenant.
14) DAMAGE OR DESTRUCTION.
a) If, during the Term, a fire or other casualty shall render the whole or
any portion of the Leased Premises untenantable, in Tenant's reasonable
judgment, and if, in Tenant's reasonable judgment, the Leased Premises can
reasonably be expected to be restored to substantially the same condition
existing immediately prior to such casualty within one hundred eighty (180)
days from the date of such casualty, Landlord shall repair and restore the
Leased Premises to substantially the same condition existing immediately
prior to such casualty within such one hundred eighty (180) day period
(subject to any delays caused by a "Force Majeure Event" [as hereinafter
defined]). In the event that Landlord timely completes such repair and/or
restoration, this Lease shall remain in full force and effect. During the
period during which such repair and/or restoration is being performed, rent
otherwise payable hereunder shall xxxxx in the proportion that the area of
the Leased Premises rendered untenantable bears to the entire area of the
Leased Premises until the Leased Premises is completely restored, repaired,
or replaced to the satisfaction of Tenant; provided, however, that no rent
shall be payable for any portion of the Leased Premises unless Tenant is
able to conduct its usual business on that portion of the Leased Premises
that remains tenantable. In the event that Landlord shall undertake to
perform such repair and restoration of the Leased Premises, Tenant shall,
15
prior to Landlord commencing such repair and restoration, provide Landlord
with (i) all insurance proceeds and (ii) the amount of the difference
between the insurance proceeds and the full replacement cost of the Leased
Premises.
b) If, during the Term, a fire or other casualty shall render the whole or
any portion of the Leased Premises untenantable, in Tenant's reasonable
judgment, and if, in Tenant's reasonable judgment, the Leased Premises
cannot reasonably be expected to be repaired and restored within one
hundred eighty (180) days from the date of such casualty, then Tenant may,
by written notice to Landlord sent within sixty (60) days from the date of
such casualty, terminate this Lease, which termination shall be effective
as of the date of such casualty.
c) If any such fire or other casualty which renders the whole or any
portion of the Leased Premises untenantable occurs during the final Lease
Year of the Initial Term or of any Option Period, Tenant may, within thirty
(30) days after the date of such casualty, give written notice to Landlord
of Tenant's intention to extend the Term pursuant to the next applicable
Renewal Option provided for in Section 3 of this Lease, in which event
Landlord shall be obligated to repair and/or restore the Leased Premises as
provided in this Section 14. In the event Tenant shall not so elect to
extend the Term, both Landlord and Tenant shall each have the option to
terminate this Lease by written notice from the terminating party to the
other party given within sixty (60) days after the date of such casualty
and, in such event, this Lease shall terminate as of the date of such
casualty,
d) If this Lease is terminated pursuant to this Section 14, Landlord shall
promptly pay to Tenant any prepaid but unearned Basic Rent and other
charges paid by Tenant, or Tenant shall promptly pay to Landlord any Basic
Rent and other charges earned and unpaid, and Landlord shall have the right
to (i) the amount of all insurance proceeds and (ii) the amount of the
difference between the insurance proceeds and the full replacement cost of
the Leased Premises.
e) If, during the Term, a fire or other casualty shall damage or destroy
any portion of the Leased Premises but shall not render the Leased Premises
untenantable, in Tenant's reasonable judgment, Tenant shall repair all such
damage or destruction except to the extent fire or other casualty damages
or destroys any structural elements of the Leased Premises (as set forth in
Section 10(b)). Landlord shall repair any damage or destruction to the
structural elements of the Leased Premises (as set forth in Section 10(b))
within sixty (60) days from the date of such casualty; Tenant shall provide
Landlord with (i) all insurance proceeds associated with such damage or
destruction of the structural elements of the Leased Premises and (ii) the
amount of the difference between the insurance proceeds and the cost to
repair any such damage or destruction of the structural elements of the
Leased Premises.
f) If Landlord is required to repair and restore the Leased Premises
pursuant to this Section 14, the applicable provisions of Section 2 above
and the Construction Provisions shall apply with respect to Landlord's
construction work related to such repair or restoration. However, if the
nature of the damage is such that it would be impractical to apply some
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or all of the provisions of Section 2 and the Construction Provisions to
Landlord's construction work as mutually and reasonably determined by
Landlord and Tenant, then Landlord and Tenant shall agree on an alternative
provision or provisions which shall be incorporated into a written
agreement executed by both Landlord and Tenant.
15) CONDEMNATION.
a) If the whole of the Leased Premises shall be acquired or taken by
eminent domain, condemnation or private purchase under threat thereof or in
lieu thereof, including, without limitation, the physical occupation of the
Leased Premises or any portion thereof or the filing of eminent domain or
condemnation papers by appropriate authorities (a "Taking"), then this
Lease and the Term shall automatically cease and terminate as of the date
on which the condemning authority or private purchaser shall have the right
to possession of the Leased Premises or any portion thereof (the "Taking
Date").
b) If any part of the Leased Premises shall be so taken and such partial
Taking shall render that portion not so taken unsuitable, as determined by
Tenant in its reasonable discretion, for the purposes for which the Leased
Premises were leased, or if any access, curb cut or other access point on
or to the Leased Premises is modified in a manner which adversely and
materially affects Tenant's business or is lost as a result of any Taking,
then Tenant shall have the right to terminate this Lease by written notice
sent to Landlord within twelve (12) months after the Taking Date. If any
part of the Leased Premises shall be so taken and this Lease shall not be
so terminated, then this Lease shall continue in full force and effect
except that the Basic Rent and all other charges payable by Tenant shall be
reduced in the same proportion that the gross leasable area of the portion
of the Leased Premises that has been taken bears to the total gross
leasable area of the entire Leased Premises and Landlord shall, within
thirty (30) after the Taking Date, commence to make all necessary repairs
and alterations to restore the untaken portion of the Leased Premises to as
near its former condition as practicable such that the untaken portion of
the Building will be a complete architectural unit. In its performance of
such repair and/or restoration work pursuant to this Section 15, the
applicable provisions of Section 2 above and the Construction Provisions
shall apply with respect to Landlord's construction work related to such
repair or restoration. However, if the nature of the damage is such that it
would be impractical to apply some or all of the provisions of Section 2
and the Construction Provisions to Landlord's construction work as mutually
and reasonably determined by Landlord and Tenant, then Landlord and Tenant
shall agree on an alternative provision or provisions which shall be
incorporated into a written agreement executed by both Landlord and Tenant.
c) If this Lease is terminated as provided in this Section 15, Landlord
shall promptly pay to Tenant any prepaid but unearned Basic Rent and other
charges, or Tenant shall promptly pay to Landlord any Basic Rent and other
charges earned and unpaid.
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d) In the event of a Taking, whether permanent or temporary, of any pylon
or monument sign (as contemplated by Section 8(b) above) on which Tenant
has installed identification panels, Tenant shall provide a substitute site
(reasonably acceptable to Tenant) therefor, within a reasonable period of
time after such Taking. If Landlord shall receive compensation from the
condemning authority for such Taking of any such sign, Landlord shall pay
said compensation to Tenant within fifteen (15) days after Landlord's
receipt thereof. e) In the event of a Taking as described in this Section
15, Tenant shall be entitled to claim compensation from the condemning
authority for (i) the value of its leasehold estate in the Leased Premises
and (ii) damages occurring by reason of the Taking, including but not
limited to loss of good will or future profits or in respect of Tenant's
Personal Property, the cost or expense for the repair and removal of such
Personal Property, moving or relocation expenses, and any other items to
which Tenant may be entitled under applicable law.
16) TENANT'S DEFAULT:
a) The following shall constitute an event of default by Tenant hereunder
(an "Event of Tenant Default");
i) Tenant's failure to make any payment of money required by this
Lease (including, without limitation, Basic Rent or Real Estate Taxes)
(subject to Tenant's right of good faith contest), within ten (10)
days after Tenant's receipt of written notice from Landlord to Tenant
that same is overdue; or
ii) Tenant's failure to observe or perform any other material
provision of this Lease within thirty (30) days after Tenant's receipt
of written notice from Landlord to Tenant specifying such default and
demanding that the same be cured; provided that if such default cannot
with due diligence be wholly cured within such thirty (30) day period,
Tenant shall have such longer period as is reasonably necessary to
cure the default, so long as Tenant proceeds promptly to commence the
cure of same within such thirty (30) day period and diligently
prosecutes the cure to completion.
b) Upon the occurrence of an Event of Tenant Default, at Landlord's option,
in addition to any and all other remedies which it may have at law and/or
in equity (except as provided below), and without its actions being deemed
an election of remedies or a cure of Tenant's default, Landlord may (a)
terminate this Lease or (b) re-enter the Leased Premises by judicial
proceeding, expel Tenant and remove all property from the Leased Premises,
and relet the Leased Premises at the best possible rent obtainable and
receive the rent therefrom. In the event Landlord relets the Leased
Premises, all rentals received by Landlord shall be applied, first, to the
payment of any indebtedness other than Basic Rent and other charges due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, excluding tenant upfit costs; third, to the
payment of Basic Rent and other charges due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of any
18
future Basic Rent and/or other charges due and unpaid hereunder. Tenant
shall remain liable to Landlord for the deficiency, if any, between the
Basic Rent and all other charges payable by Tenant pursuant to this Lease
and the rent and all other charges payable by the new tenant pursuant to
the new lease obtained by Landlord on reletting. In the event this Lease
shall be terminated as provided above, Landlord, its agents, servants or
representatives may immediately or at any time thereafter peaceably
re-enter and resume possession of the Leased Premises and remove all
persons and property therefrom, by summary dispossession proceedings. The
various rights and remedies reserved to Landlord herein are cumulative, and
Landlord may pursue any and all such rights and remedies, whether at the
same time or otherwise (to the extent not inconsistent with specific
provisions of this Lease); provided that Landlord shall have the duty in
any instance to mitigate its damages with respect to any Event of Tenant
Default. Notwithstanding anything herein to the contrary, (i) Landlord
expressly waives its right to forcibly dispossess Tenant from the Leased
Premises, whether peaceably or otherwise, without judicial process, such
that Landlord shall not be entitled to any "commercial lockout" or any
other provisions of applicable law which permit landlords to dispossess
tenants from commercial properties without the benefit of judicial review
and (ii) Landlord shall in no event have any right to accelerate the Basic
Rent or any other charges payable by Tenant hereunder.
17) LANDLORD'S DEFAULT.
a) The following shall constitute an event of default by Landlord hereunder
(an "Event of Landlord Default"):
(i) Landlord's failure to make any payments of money due Tenant or any
third party, including but not limited to the payment of the brokerage
commissions pursuant to Section 29(s) below, within ten (10) days
after the receipt of written notice from Tenant that same is overdue;
or
(ii) Landlord's failure to perform any nonmonetary obligation of
Landlord hereunder within thirty (30) days after receipt of written
notice from Tenant to Landlord specifying such default and demanding
that the same be cured; provided that, if such default cannot with due
diligence be wholly cured within such thirty (30) day period, Landlord
shall have such longer period as may be reasonably necessary to cure
the default, so long as Landlord proceeds promptly to commence the
cure of same within such thirty (30) day period and diligently
prosecutes the cure to completion and provided further that in the
case of an emergency, Tenant shall be required to give only such
notice as is reasonable under the circumstances.
b) Upon the occurrence of an Event of Landlord Default, at Tenant's option,
in addition to any and all other remedies which it may have at law and/or
in equity, and without its actions being deemed an election of remedies or
a cure of Landlord's default, Tenant may do all or any of the following:
19
(i) pay or perform such obligations and offset Tenant's actual cost of
performance, including any and all transaction costs and attorneys'
fees, against the Basic Rent and any and all other amounts and charges
due Landlord hereunder; or
(ii) withhold Basic Rent and any other payments due to Landlord under
this Lease until such Event of Landlord Default, transaction costs and
attorneys' fees specified in subsection (i) above, is cured by
Landlord; or
(iii) terminate this Lease and/or xxx for damages, including
transaction costs and attorneys' fees specified in subsection (i)
above.
With respect to a breach by Landlord of the provisions of Section 18
below, Tenant shall be entitled to any remedies provided therein, in
addition to those remedies provided herein.
The various rights and remedies reserved to Tenant herein are
cumulative, and Tenant may pursue any and all rights and remedies, whether
at the same time or otherwise. Notwithstanding the foregoing, a delay by
Tenant in exercising its cure rights or other remedies hereunder shall not
be deemed a Force Majeure Event for purposes of extending the date(s)
established for performance by Landlord.
c) Any offset made by Tenant against Basic Rent or any other charges
otherwise due by Tenant hereunder shall be without liability to Tenant,
shall not constitute a default on behalf of Tenant and shall not affect any
other rights or remedies Tenant may have against Landlord for failure to
comply with the provisions herein.
18) NON-COMPETITION.
a) Neither Landlord nor any stockholder, member, partner, beneficiary,
successor, assign, personal representative, heir, subsidiary or affiliate
of Landlord, nor any person(s) or entity(ies) having a direct or indirect
interest in Landlord, shall, for as long as this Lease remains in force and
effect, either directly or indirectly, own, occupy or operate, or sell,
lease or otherwise transfer to any person or entity, or permit any person
or entity to occupy, any land, building, premises or space, whether
presently owned or hereafter acquired, located within two (2) miles of the
Leased Premises for the purpose of (i) conducting thereon a business
similar to that being conducted by Tenant on the Leased Premises or (ii)
the sales, display or rental of automotive parts, accessories, supplies
and/or maintenance items. In addition, neither Landlord nor any
stockholder, member, partner, beneficiary, successor, assign, personal
representative, heir, subsidiary or affiliate of Landlord, nor any
person(s) or entity(ies) having a direct or indirect interest in Landlord,
shall lease, sell or otherwise transfer or convey any such premises
adjacent to and/or contiguous with the Leased Premises without imposing
thereon a restriction to secure compliance herewith, or permit any tenant
or occupant of any such premises or any part thereof to sublet or assign in
any manner, directly or indirectly, any part thereof to any person, firm,
corporation or other entity engaged in any such business described above,
20
without the prior written consent of Tenant, which consent may be withheld
by Tenant in Tenant's sole discretion.
b) Tenant shall, in the event that there is a breach of any of the
provisions of this Section 18, have the following rights and remedies, none
of which shall be exclusive of the other remedies or any other remedy
otherwise available to Tenant:
i) Tenant may institute proceedings to enjoin the violation;
ii) If such breach continues for a period of thirty (30) days after
written notice thereof shall have been given by Tenant to Landlord,
Tenant may, at any time thereafter, elect to terminate this Lease and,
on such election, this Lease shall, on the date stated in the notice
of such election, be terminated, and Tenant shall be released and
discharged of and from any and all further liability hereunder;
iii) Landlord shall protect, defend, indemnify and hold Tenant
harmless from all losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and court
costs) sustained or incurred in connection with any proceedings
instituted by Tenant as a result of any such breach.
19) ENVIRONMENTAL:
a) As used herein, the term "Hazardous Substance" includes petroleum,
natural or synthetic gas products and any hazardous, toxic or dangerous
waste, pollutant, contaminant, substance or material defined as such in, or
for the purposes of, the "Environmental Laws" (as hereinafter defined). For
the purposes of this Lease, the term "Environmental Laws" means any
environmental, health or safety law, rule, regulation, ordinance, order or
decree, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, the Resource
Conservation and Recovery Act, as amended, any "Superfund" or "Super Lien"
law or any other federal, state, county or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to or imposing
liability or standards of conduct concerning any petroleum, natural or
synthetic gas products and/or hazardous, toxic or dangerous waste pollutant
or contaminant, substance or material as may now or any time hereinafter be
in effect,
b) Landlord represents, warrants and covenants that:
(i) to the best of Landlord's knowledge and belief, the Leased
Premises is in compliance with all Environmental Laws and no Hazardous
Substances have been released or threatened to be released upon, in,
at, around or under the Land or off-site locations within one (1) mile
of the Land that are owned, operated or controlled by Landlord or any
party related to Landlord to any degree, except as disclosed in the
Phase I Report (as defined in Section 19(c));
21
(ii) to the best of Landlord's knowledge and belief, there is not now,
pending or threatened, any action, suit, investigation or proceeding
against Landlord or the Land, or against any other property relating
to the Land, seeking to enforce a right or remedy under common law or
under any of the Environmental Laws;
(iii) Landlord has, to the best of Landlord's knowledge and belief,
complied with and will continue to comply with all applicable
Environmental Laws relating to or affecting the Leased Premises
including, without limitation, Landlord's business operations upon or
off the Leased Premises (including, without limitation, all
Environmental Laws with respect to the registration, testing and
upgrading of underground or above ground storage tanks);
(iv) Landlord has not, to the best of Landlord's knowledge and belief,
and will not engage in any activities that constitute spilling,
leaking, emitting, discharging, injecting, dumping or disposing of any
Hazardous Substances into the environment on, above, below or
surrounding the Leased Premises;
(v) to the best of Landlord's knowledge and belief, there is no
asbestos-containing material on the Leased Premises;
(vi) Landlord has, to the best of Landlord's knowledge and belief,
obtained, and will at all times continue to obtain and maintain, all
required environmental licenses and permits under the Environmental
Laws that are necessary for the ownership of the Leased Premises (the
"Environmental Permits"), and Landlord has, to the best of Landlord's
knowledge and belief, complied with and will comply with all other
governmental or regulatory requirements necessary to comply with the
Environmental Laws. Landlord is, to the best of Landlord's knowledge
and belief, in full compliance with the terms and provisions of the
Environmental Permits and will continue to comply with the terms and
provisions of the Environmental Permits; and
(vii) to the best of Landlord's knowledge and belief, there are no
Hazardous Substances located on, in, at or under the Leased Premises
that exceed action levels.
Landlord agrees to indemnify and hold Tenant harmless from any and all
claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for settlement of
claims, attorneys' fees, consultants' fees, and expert fees) arising at any
time from or in connection with (i) the presence or release, or suspected
presence or release, of Hazardous Substances or asbestos-containing
materials at, in or on the Leased Premises unless the Hazardous Substances
or asbestos-containing materials are present solely as a result of the
breach by Tenant of the provisions of Section 19(d) below or (ii) the
violation of any Environmental Laws unless such violation is due solely as
a result of the breach by Tenant of the provisions of Section 19(d) below.
Without limiting the foregoing, this indemnification (i) shall include any
22
and all costs incurred due to any investigation of the Leased Premises or
any cleanup, removal, or restoration mandated by any governmental
authorities and (ii) shall specifically include any and all costs due to
Hazardous Substances that flow, diffuse, migrate, or percolate into, onto,
or under the Leased Premises.
c) Tenant's obligations under this Lease are conditioned upon (i) the Land
being in compliance with all Environmental Laws and (ii) the Land being
free from any and all Hazardous Substances. In order to determine
preliminarily such compliance with Environmental Laws and the lack of
Hazardous Substances, Landlord shall within thirty (30) days of the date of
this Lease obtain and provide Tenant with a copy of a Phase I environmental
report (the "Phase I Report") to be prepared at Landlord's sole cost and
expense. In the event the Phase I Report reflects
(i) any potential non-compliance with Environmental Laws and/or
(ii) the potential existence of Hazardous Substances on or under the
Land, and the Phase I Report recommends further study, Landlord shall,
within thirty (30) days of the date of the Phase I Report, order a
Phase II environmental report (the "Phase II Report" and, together
with the Phase I Report, the "Environmental Reports") to be prepared
at its sole cost and expense. The Environmental Reports shall be
prepared by a qualified environmental firm reasonably acceptable to
Tenant and shall be addressed and certified to both Landlord and
Tenant such that both Landlord and Tenant shall be entitled to rely
thereon. In the event the Environmental Reports reflect that
(i) the Land is not in compliance with the Environmental Laws
and/or
(ii) the Land is not free from any and all Hazardous Substances,
this Lease shall be null and void on the later of the thirtieth
(30"') day after Tenant receives a copy of the most recent of the
Environmental Reports or the thirtieth (30th day) after the
Commencement Date unless
(i) Tenant expressly waives, in writing, such nullification
or
(ii) Landlord elects, by written notice given to Tenant
prior to the expiration of such thirty (30) day period, to
have the non-compliance condition and/or the presence of
Hazardous Substances remediated. If Landlord elects to
undertake any such remediation, Landlord shall diligently
perform such remediation and this Lease shall remain in
effect for a period of one hundred and twenty (120) days
subsequent to the thirty (30) day period described in the
previous sentence (the "Remediation Period") to permit such
remediation, but if such remediation has not been completed
by the end of the Remediation Period, this Lease may be
terminated by Tenant upon written notice to Landlord.
d) Tenant covenants that, during the period of its possession of the Leased
Premises, Tenant and its employees shall comply with all Environmental Laws
that are applicable to Tenant's use of the Leased Premises. Tenant agrees
to indemnify and hold Landlord harmless from any and all claims, damages,
fines, judgments, penalties, costs, liabilities, or losses (including,
without limitation, any and all sums paid for settlement of claims,
attorneys' fees, consultants' fees, and expert fees) arising at any time
solely as a result of the violation by Tenant and/or its employees of the
foregoing covenant. Without limitation of the foregoing, this
indemnification shall include any and all costs incurred by Landlord due to
any investigation of the Leased Premises or any cleanup, removal, or
restoration mandated by any governmental authorities.
23
20) SUBORDINATION: ESTOPPELS.
a) Simultaneously with the execution hereof, Landlord shall deliver to
Tenant, with regard to any and all "Ground Leases" (as hereinafter defined)
and any and all "Mortgages" (as hereinafter defined) encumbering the Leased
Premises as of the Commencement Date of this Lease, a subordination,
non-disturbance and attornment agreement in the form attached hereto as
Exhibit "C". executed by the lessor under any such Ground Lease ("Ground
Lessor") or the holder of such Mortgage ("Mortgagee"), as applicable.
Tenant shall have no obligation to pay Basic Rent or other charges
hereunder until such subordination, non-disturbance and attornment
agreement(s) are delivered to Tenant, whereupon Tenant shall pay all
accrued Basic Rent and other charges due hereunder at the time of such
delivery. In addition, throughout the Term, Landlord shall deliver to
Tenant a subordination, non-disturbance and attornment agreement in the
form attached hereto as Exhibit "C" executed by any Ground Lessor or
Mortgagee (as applicable) with regard to all future Ground Leases and
Mortgages and with regard to all renewals, modifications, replacements and
extensions of such Ground Leases or Mortgages. Upon Tenant's receipt of the
executed subordination, non-disturbance and attornment agreement, this
Lease shall be subordinate to the corresponding Ground Lease or Mortgage.
Landlord shall cause any present or future Mortgagee to deliver a
subordination, non-disturbance and attornment agreement in accordance with
this Section 20(a) at or prior to the time which the lien of the Mortgage
is filed against record title to the Leased Premises. As used in this
Lease, the term "Mortgage" shall mean any mortgage, deed to secure debt,
deed of trust, trust deed or other collateral conveyance of, or lien or
encumbrance against, all or any portion of the Leased Premises, and the
term "Ground Lease" shall mean any ground lease or master lease affecting
all or any portion of the Leased Premises.
b) Tenant shall, at all reasonable times, upon at least thirty (30) days'
prior written notice from Landlord, provide Landlord with an estoppel
certificate in the form attached hereto as Exhibit "E."
c) No Personal Property of Tenant shall be subject to mortgage liens of
Landlord.
21) TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN.
All of Tenant's Personal Property, except that which is permanently attached,
and inventory shall be and remain the personal property of Tenant and shall be
removable by Tenant any time prior to the expiration or earlier termination of
this Lease, Notwithstanding anything contained herein to the contrary, Landlord
expressly waives its statutory or common law landlord's liens (as same may be
enacted or may exist from time to time) and any and all rights granted under any
present or future laws to levy or distrain for rent (whether in arrears or in
advance) against the Personal Property and further agrees to execute any
reasonable instruments evidencing such waiver, at any time or times hereafter
upon Tenant's request.
22) TENANT'S FINANCING.
Notwithstanding any other provisions of this Lease, Tenant may, without
Landlord's consent, from time to time, secure financing or general credit lines
and grant the lenders thereof, as security therefor,
(i) a security interest in the Personal Property,
(ii) the right to enter the Leased Premises to realize upon any
Personal Property so pledged, and/or
24
(iii) a collateral assignment of Tenant's leasehold interest in the
Leased Premises, with rights of reassignment; provided, however, such
collateral assignment may be made solely for the purpose of securing
Tenant's indebtedness.
23) COMPLIANCE WITH APPLICABLE LAWS AND PERMITTED ENCUMBRANCES.
During the Term, Landlord and Tenant shall comply with (i) all lawful
requirements of the local, county and state health boards, police and fire
departments, municipal and state authorities and any other governmental
authorities with jurisdiction over the Leased Premises and (ii) any covenants,
restrictions and requirements contained in the Permitted Encumbrances,
respecting Tenant's use and occupancy of the Leased Premises.
24) NOTICES, Notices under this Lease shall be in writing and shall be deemed
properly served and received: (i) two (2) business days after being deposited in
the United States mail, as certified or registered mail, return receipt
requested, bearing adequate postage, (ii) one (1) business day after being
deposited with a reputable overnight delivery carrier (e.g. Federal Express,
Airborne, UPS, Express Mail) for guaranteed next day delivery with a request
that the addressee sign a receipt evidencing delivery or (iii) upon receipt if
personally delivered. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice as of the date of such rejection, refusal or
inability to deliver. Notices shall be addressed as follows:
To Landlord at: Cross Country Properties III, LLC
0000 Xxxxxxxx Xxxxxxx, Xxxxx X Xxxxxxx, Xxxxxxx 00000
To Tenant at: Advance Stores Company, Incorporated
X.X. Xxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attn: Real Estate
Department
for overnight delivery: 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Real Estate Department
With a copy to: Advance Stores Company, Incorporated
0000 Xxxxxxx Xxxx Xxxxxxx, XX 00000
Attn: Legal Department
or to any other address furnished in writing by any of the foregoing. However,
any change of address furnished shall comply with the notice requirements of
this Section 24 and shall include a complete outline of all current addresses
to be used for all parties.
25) NO LIENS Should any lien of any nature be filed against the Leased Premises,
the party on account of whose actions such lien has been filed shall, within
thirty (30) days after receipt of written notice of such lien, cause such lien
to be removed, or otherwise protected against execution during good faith
contest, by substitution of collateral, posting a bond therefor, escrowing of
25
adequate funds to cover the claim and related transaction costs or such other
method as may be permissible under applicable title insurance regulations and
reasonably acceptable to the other party hereto,
26) COVENANT OF QUIET ENJOYMENT.
Landlord covenants, warrants and represents that Tenant, upon paying the rent
herein reserved and performing the covenants and agreements hereof, shall
peaceably and quietly have, hold and enjoy the Leased Premises during the Term.
No third party has the right to prohibit Tenant's tenancy hereunder, to prohibit
Tenant or its employees, customers and/or invitees from using the Leased
Premises in accordance with the terms of this Lease or to consent to or approve
(excepting governmental agencies) any feature of the Leased Premises or Tenant's
signage. There shall be no restrictions of any kind during the Term that could
prevent, limit or restrict the use of the Leased Premises in accordance with the
terms of this Lease, including, without limitation, (x) the operation of a
retailer of automotive parts, accessories, supplies and/or maintenance items and
(y) truck deliveries to the Leased Premises during Tenant's business hours. No
signboards or other construction which obstructs the view of the Leased Premises
from adjoining public streets shall be erected during the Term upon any property
owned, leased, operated or otherwise controlled by Landlord or any stockholder,
member, partner, beneficiary, successor, assign, personal representative, heir,
subsidiary or affiliate of Landlord, or any person(s) or entity(ies) having a
direct or indirect interest in Landlord. Notwithstanding the foregoing, in the
event that an intentional or negligent act or omission or violation of any
applicable law, rule or regulation by Tenant, or any assignee (to the extent
Tenant remains liable under this Lease subsequent to an assignment pursuant to
Section 9) or subtenant of Tenant results in the limitation or restriction of
its use of the Leased Premises, neither Tenant nor any such assignee or
subtenant shall be able to claim such limitation or restriction to be an Event
of Landlord Default hereunder.
27) SURRENDER: HOLDING OVER.
a) Upon expiration of this Lease, or its earlier termination, Tenant will
surrender possession of the Leased Premises (except for any and all of
Tenant's Personal Property removed from the Leased Premises) to Landlord in
broom clean condition, except for ordinary wear and tear and loss by fire
or other casualty or by a "Taking" (as hereinafter defined).
b) If Tenant shall remain in possession of the Leased Premises or any part
thereof after expiration of the Term without an agreement in writing
between Landlord and Tenant with respect thereto, Tenant shall be deemed a
tenant from month to month upon the same terms and conditions as contained
in this Lease. Notwithstanding the foregoing, Tenant shall pay Landlord, as
rental on the Leased Premises for any period that Tenant remains in
possession of the Leased Premises after expiration of the Term, an amount
equal to one hundred ten percent (110%) of the Basic Rent which Tenant
would otherwise have paid if the Term had not expired for each month or any
portion thereof in which Tenant occupies the Leased Premises after the
expiration of the Term.
28) DECLARATION.
Landlord shall be solely responsible for complying with all obligations imposed
upon the Leased Premises by the Permitted including, but not limited to,
drainage and utility easement maintenance, insurance, and indemnification
obligations. Tenant shall be
26
responsible for maintaining the access easement areas located on the Leased
Premises, but shall not be responsible for performing any other obligation
imposed by the Permitted Encumbrances. Landlord shall promptly provide Tenant
with a copy of any notice Landlord receives in connection with the Permitted
Encumbrances, Landlord shall not consent to any amendment to or modification of
the Permitted Encumbrances without first notifying Tenant of such proposed
amendment in writing and receiving Tenant's written consent to such amendment,
such consent not to be unreasonably withheld. Landlord shall indemnify and hold
harmless Tenant from all damages, claims, liabilities or expenses, including
reasonable and actual attorneys' fees (through all levels of proceedings),
arising in connection with the Permitted Encumbrances or any obligation imposed
or right granted therein.
28) MISCELLANEOUS PROVISIONS.
a) Time of Essence. Time is of the essence with respect to any time periods
or dates referenced in this Lease with respect to both Landlord and Tenant.
b) Confidentiality. Except for documents that are or will be a matter of
public record or information which the other party has agreed to in writing
may be disclosed, the parties hereto, including, but not limited to, their
heirs, successors, assigns and legal representatives, agree to use their
best reasonable efforts to maintain the confidentiality of, and shall not
disclose to any third party (except to an accountant, attorney, potential
purchaser, tax preparer for tax return preparation or lender to the extent
such person agrees to be bound by this confidentiality provision), any
terms of this Lease or any correspondence, documents and/or things relating
to this Lease, unless such terms, correspondence, documents and/or things
are legally required to be disclosed. This confidentiality agreement
extends to any developers, bankers, lawyers, accountants, employees, agents
or any other persons acting on behalf of the parties hereto.
Notwithstanding anything contained herein to the contrary, any breach of
this confidentiality agreement shall constitute an automatic Event of
Default without notice or cure provided, for which either party may recover
damages as their sole remedy and for which neither party can terminate this
Lease.
c) Identity of Interest. Nothing contained in this Lease shall be construed
to make Landlord and Tenant partners or joint venturers or to render either
party liable for the debts or the obligations of the other. The only
relationship created by this Lease between the parties is that of landlord
and tenant.
d) Third Party Beneficiaries. Except as herein specifically provided, no
person, subtenant, customer, employee or invitee or any other third party
shall be deemed to be a third party beneficiary of any of the provisions
herein.
e) Partial Invalidity. If any section, paragraph, subparagraph, sentence,
clause or phrase of this Lease shall be declared or judged invalid or
unconstitutional, such declaration or adjudication shall not affect the
other sections, paragraphs, subparagraphs, sentences, clauses or phrases of
this Lease, all of which shall remain in full force and effect.
27
f) Memorandum of Lease; Declaration, Simultaneously with the execution of
this Lease, Landlord shall (i) cause to be prepared and executed, at its
expense, a short form or memorandum of this Lease in the form attached
hereto as Exhibit "F" (the "Lease Memorandum") and (ii) submit same to
Tenant. In the event a Lease Memorandum cannot be recorded in the State or
locality in which the Leased Premises is located due to legal or financial
considerations, as determined by Tenant in its sole discretion, after
consultation with Landlord concerning the requirements of said State or
locality, Landlord shall (i) cause to be prepared and executed, at its
expense, a Declaration of Covenants, Conditions and Restrictions
encumbering the Leased Premises and any other real property owned, leased,
operated or otherwise controlled by Landlord and/or related entities and
located adjacent to or within two (2) miles of the Leased Premises, the
form of which Declaration is attached hereto as Exhibit "0" (the
"Declaration") and (ii) submit same to Tenant Landlord shall record, at
Tenant's expense, such Lease Memorandum or Declaration, as applicable. The
provisions of this Lease shall control with regard to any omissions from,
or provisions hereof which may be in conflict with, the Lease Memorandum or
the Declaration, Notwithstanding the foregoing, this Lease shall not be
recorded in any office or place of public record, and if either party shall
record this Lease or cause or permit the same to be recorded, such act may
be treated as a breach of this Lease by such recording party. Upon the
expiration or earlier termination of this Lease, the parties hereto shall
execute a mutually acceptable agreement terminating the Lease Memorandum or
the Declaration, as applicable.
g) Notices Affecting the Leased Premises, Landlord shall promptly forward
to Tenant any notice or other communication affecting the Leased Premises
received by Landlord from any owner of property adjoining, adjacent or
nearby to the Leased Premises or from any municipal or governmental
authority, in connection with any hearing or other administrative procedure
relating to the use or occupancy of the Leased Premises or any such
neighboring property.
h) Headings; Gender, The section headings are for convenience and are not a
part of this Lease. The masculine, feminine or neuter gender and the
singular or plural number shall be deemed to include the others whenever
the context so requires or indicates.
i) No Waiver. The failure of either party to insist in any one or more
instances upon a strict performance of any covenant of this Lease or to
exercise any option or right herein contained shall not be construed as a
waiver or relinquishment for the future enforcement of such covenant, right
or option, but the same shall remain in full force and effect, unless the
contrary is expressed in writing by such party.
j) Force Majeure. Except as otherwise specifically contemplated in this
Lease, in the event that Landlord or Tenant shall be delayed or hindered
in, or prevented from, the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure
materials, delay by the other party, failure of power or unavailability of
utilities, riots, insurrection, war, terrorism or other reason of a like
nature not the fault of such party or not within its control (each, a
"Force Maieure Event"), then performance of such act shall be excused for
the period of delay, and the period for the performance of any such act
shall be extended for a period equivalent to the period of such delay;
28
provided, however, the party claiming a delay by reason of a Force Majeure
Event shall notify the other party within five (5) business days following
the onset of the Force Majeure Event.
k) Pre-existing Conditions. Nothing contained in this Lease shall be
construed to impose any responsibility upon Tenant with regard to any loss,
injury or other claim arising as a result of any condition that existed on
the Leased Premises at the time of Tenant's taking possession thereof.
1) No Offer. Tenant's delivery to a prospective landlord of this form of
Lease shall not be deemed an offer to lease even though such form may have
been completed in every respect.
m) Choice of Law. This Lease shall be construed in accordance with and
governed by the laws of the State.
n) Binding Effect. This Lease shall inure to the benefit of and be binding
upon Landlord and Tenant and their respective heirs, executors, legal
representatives, successors and assigns,
o) No Construction Against Drafting Party. This Lease has been prepared by
Tenant and its professional advisors and reviewed by Landlord and its
professional advisors. Tenant, Landlord and their separate advisors believe
that this Lease is the product of all of their efforts, that it expresses
their agreement, and that it should not be interpreted in favor of either
Tenant or Landlord or against either Tenant or Landlord merely because of
their efforts in preparing it.
p) Entire Agreement. Amendment. This Lease and the attached exhibits
constitute the entire agreement between Landlord and Tenant with respect to
the Leased Premises, and all negotiations, considerations, representations
and understandings between Landlord and Tenant prior to the execution of
this Lease are incorporated herein. Neither this Lease nor any of its
provisions nor any of the documents creating the Permitted Encumbrances set
forth in "Exhibit H" may be amended, modified, waived, discharged or
terminated except by an instrument in writing signed by the parties hereto.
q) Trademarks and Trade Names. All trademarks, trade names, service marks,
signs and all other marks of identification used by Tenant in its business
shall at all times remain the exclusive property of Tenant, and Landlord
shall have no right, interest in, or title to any of Tenant's trademarks,
trade names, service marks, signs or other marks of identification.
r) Holidays. If the day on which any rent or any other payment due
hereunder is payable falls on a Saturday or Sunday or on a legal holiday,
it shall be payable on the following business day.
s) Brokers. Tenant and Landlord warrant each to the other that it has had
no dealings with any broker or agent in connection with this lease, and
each party covenants to pay, hold harmless and indemnify the other from and
against any and all costs, expenses or liability for any compensation,
29
commissions and charges claimed by any broker or agent with respect to this
lease or the negotiation thereof.
t) Counterparts. This Lease may be executed in more than one counterpart,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
u) Exhibits. The following Exhibits are attached hereto and incorporated
herein by this reference:
EXHIBIT "A" -- Survey of Land
EXHIBIT "B" -- Construction Provisions
EXHIBIT "C" -- Subordination, Non-Disturbance and Attomment Agreement
EXHIBIT "D" -- Commencement Agreement
EXHIBIT "E" -- Estoppel Certificate
EXHIBIT "F" -- Lease Memorandum
EXHIBIT "0" -- Declaration
EXHIBIT "H" -- Permitted Encumbrances
EXHIBIT "1-1" - Exterior Sign
EXHIBIT "1-2" - Pylon Sign
30
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed effective as of the day and year first written above.
LANDLORD:
CROSS COUNTRY PROPERTIE III, LLC, a Georgia limited liability company
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Its: Managing Member
Date: 03-29-04
-----------------------------------
TENANT:
ADVANCED STORES COMPANY, INCORPORATED, a Virginia Corporation
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Its: President
Date: 03-29-04
-----------------------------------
31
STATE OF_______________ )
)SS;
COUNTY OF_______________ )
The undersigned, a Notary Public, in and for the County and State aforesaid,
does hereby certify, that Xxx X. Xxxxx personally known to me to be the Managing
Member of Cross Country Properties III, LLC, a Georgia limited liability
company, and personally known to me to be the same person whose names are
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged under oath that as such Managing Member he signed and delivered
the said instrument pursuant to authority duly given to him by said limited
liability company-
Given under my hand and seal this ______ day of ________, 20___.
_____________________________
Notary Public
My Commission Expires:_____________________
COMMONWEALTH OF VIRGINIA )
)SS;
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that Xxxxxx X. Xxxx, President of Advance
Stores Company, Incorporated, a Virginia corporation, and personally known to
me to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged under oath that as such
President, he signed and delivered the said instrument pursuant to authority
duly given to him by said corporation.
Given under my hand and seal this 29th day of March, 2004.
/s/ Xxxxx Xxxxxxxxxx Xxxxxx
---------------------------
Notary Public
My Commission Expires: My Commission Expires February 20, 2097
32
Exhibit "A"
-----------
Survey
------
Exhibit "B" Construction Provisions
Landlord's Construction.
------------------------
Landlord shall, at its sole cost and risk:
a) Perform the construction of the "Site Work" (as hereinafter defined),
the Building and the Other Improvements, including, without limitation, the
erection and installation of all exterior signs related to safety required
by law (including, without limitation, handicapped parking signs and fire
lane signs) (such construction being hereinafter referred to collectively
as the "Work") in a good and workmanlike manner, using first quality
materials, all (i) in accordance with sound trade practices and in
compliance with all applicable laws, ordinances and regulations and (ii) in
accordance with this Exhibit "B" and the other terms and provisions of this
Lease and the prototypical plans and specifications described as 84' X 83'
right xxxxx entry prototype on the Store Planning & Design Prototypical
Drawings and Procedures compact disc Version 1.0, Quarter 1, dated 3/1/04
heretofore delivered to Landlord and incorporated herein by reference and
made a part hereof, and the Site Plan and Elevations (said plans and
specifications, Site Plan and Elevations being referred to herein
collectively as the "Prototypical Plans") , Landlord shall, at Landlord's
expense, have the Prototypical Plans reviewed by a properly licensed
architect and/or engineer and shall have such properly licensed architect
and/or engineer prepare a complete set of civil drawings, construction
drawings, and specifications (the "Plans"). The Plans prepared by Landlord
shall be furnished to Tenant for Tenant's approval within thirty (30) days
after the full execution of this Lease. Tenant shall approve or reject said
Plans within fifteen (15) days of Tenant's receipt thereof and, if not
approved or rejected within said period, said Plans shall be deemed
approved by Tenant. In the event Tenant shall reject such Plans within the
period specified above, Tenant shall return said Plans to Landlord
indicating the items so rejected Landlord shall then have fifteen (15) days
to resubmit the Plans to Tenant, and Tenant shall have fifteen (15) days
after resubmittal to approve or reject the same. If not approved or
rejected within said fifteen (15) day period, said resubmitted Plans shall
be deemed approved by Tenant; provided, however, that in no event shall the
standards of quality of approved Plans, or of those deemed approved, be
less than those required by the Prototypical Plans, which shall control. If
said Plans are rejected after being resubmitted to Tenant, Tenant may
cancel this Lease Tenant shall deliver any such approval or rejection as
provided hereinabove to Landlord in writing. Such approval or rejection may
be delivered by facsimile.
Upon Tenant's approval in writing of such Plans, said Plans shall become
the final plans according to which the Leased Premises is constructed (the
"Final Plans")
Upon the Rent Commencement Date, Landlord shall provide to Tenant's Real
Estate Department a set of AutoCAD 2000,dwg files on compact disk of the
Plans and Final Plans, including all civil engineering drawings and
landscape plans All Plans and Final Plans may be used and reused by Tenant
regardless of by whom prepared;
1
Landlord shall obtain a license from the design professional who prepared
said Plans and Final Plans granting Tenant the unrestricted right to use
all or portions of the Plans and Final Plans, provided that all reference
to the said design professionals and their firms is removed from
subsequently altered Plans and Final Plans. Such Plans and Final Plans may
be used by Tenant as approved by Tenant pursuant to this Lease or as
modified by Tenant in connection with any alteration or renovation of the
Leased Premises. Landlord may use the Plans or Final Plans only in
connection with an Advance Auto Parts or affiliate auto parts store, b)
Allow Tenant to inspect all materials and the Work at all times during
construction and, after receiving written notice from Tenant of defective
Work and materials, whether complete or incomplete, immediately proceed to
remove all such defective Work, and, if materials are rendered unfit for
use, Landlord shall replace such materials, all at its own cost; provided,
however, that Tenant shall not act unreasonably with regard to its
determination that any work or materials are defective. c) Pay the cost of
all utilities, including water, electricity and fuel, used by Landlord
during the performance of the Work and install and connect all requisite
sewer, water, electrical and other utility facilities sufficient to meet
Tenant's requirements and as specified in the PlansFinal Plans. d)
Unconditionally guarantee the Work against defective workmanship and
materials for a period of one (1) year from the Completion Date.
All of the Work shall be performed as appropriate by engineers, surveyors,
architects and consultants who are licensed in the State and of good
reputation. Tenant shall not be responsible in any manner for any loss or
damage arising from the actions or omissions or negligence of Landlord, any
contractors or sub-contractors, or any of their employees, agents or
servants by reason of the Work. To the maximum extent allowed by law,
Landlord shall indemnify, defend, and save Tenant harmless from and against
all claims, suits, liabilities and expenses, including attorneys' fees, for
any damage or injury to persons or property occurring during or resulting
from construction of or on the Leased Premises.
2. Construction Procedures. During the performance of the construction work,
Landlord shall comply with the following procedures (the "Construction
Procedures"):
a) On or before the date all Approvals are received, furnish Tenant's Real
Estate Department with no less than two (2) complete sets of geotechnical
reports regarding the Land, civil engineering site plans and architectural
construction drawings.
b) On or before the date all Approvals are received, furnish Tenant's Real
Estate Department with no less than two (2) copies of the design standards
for the parking area improvements designed by a civil engineer licensed in
the State which shall be based upon the geotechnical report regarding the
soil conditions of the Land.
c) On or before the Completion Date, furnish Tenant upon completion of the
parking area improvements with a document executed and sealed by the civil
engineer who designed such improvements certifying that same have been
constructed in compliance with the design standards referred to in Section
2(b) of these Construction Provisions,
d) Furnish Tenant's Real Estate Department at the time the "Notice of
Completion" (as hereinafter defined) is given with (i) certification from
the manufacturer and installer of the roofing system installed on the
Building certifying that such installer has been approved by such
manufacturer for installation of such roofing system and that the
installation of such roofing system was performed in conformity with such
manufacturer's "No Dollar Limit" written warranty or other commercially
comparable warranty and (ii) certification and warranty from the
manufacturer and installer of the roofing system installed on the Building
certifying and warranting the weather-proof performance of the specified
roofing materials, insulation and flashings, which warranty shall extend
for a period of fifteen (15) years from the date of the Notice of
Completion.
e) On or before the Completion Date, require the mechanical subcontractor
who installs the HVAC in the Building to obtain a report from an
independent test and balance company that is either a member of the
Associated Air Balance Council or the National Environmental Balancing
Bureau certifying that the HVAC is in conformity with the manufacturer's
performance standards, which report shall be furnished to Tenant's Real
Estate Department with the Notice of Completion.
f) Permit Tenant or its designated representative to review and inspect, at
any reasonable time within one (1) year following the Completion Date, any
and all of Landlord's records as to the costs relating to the construction
work, including but not limited to construction contracts, purchase
agreements, subcontractor invoices and invoices for architects and
engineers associated with the construction work.
3. Construction Schedule. The construction work shall be performed pursuant to
the following schedule (the "Construction Schedule"):
a) Landlord shall promptly apply for and diligently pursue all required
governmental permits and approvals for prosecution of the Work, including
rezoning (if necessary) of the Land to permit Tenant's intended use thereof
(collectively, the "Approvals"). Landlord shall notify Tenant's Real Estate
Department of the filing of all applications for such Approvals, including
the date thereof, and keep Tenant's Real Estate Department fully informed
as to the progress of the procurement of the Approvals. If Tenant is not
notified that the Approvals have been received within thirty (30) days
after the date of this Lease, Tenant, at its sole option, may, at any time
thereafter until commencement of the Site Work, terminate this Lease by
giving written notice of such termination to Landlord.
b) Upon receipt of the Approvals, Landlord shall promptly prepare and
deliver to Tenant's Real Estate Department, on or before the date of the
initial pre-construction meeting, a detailed bar chart construction
schedule in form acceptable to Tenant which schedule shall set forth the
3
weekly progress of the construction that will meet the Construction
Schedule set forth in this Section 3 of these Construction Provisions.
c) Upon receipt of the Approvals, Landlord shall promptly commence and
diligently complete the preparation of the Land for the construction of the
Building and the Other Improvements in accordance with the PlansFinal Plans
and these Construction Provisions (the "Site Work"). If Landlord has not
commenced the Site Work within thirty (30) days after its receipt of the
Approvals, Tenant, at its option, may, at any time thereafter until
commencement of the Site Work, terminate this Lease by giving written
notice of such termination to Landlord.
d) Once the Work has commenced, Landlord shall furnish Tenant's Real Estate
Department with a weekly status report reflecting the progress of the Work
in comparison with the Construction Schedule set forth in this Section 3 of
these Construction Provisions.
e) Landlord shall (i) complete the Work (less and except the items on
Tenant's minor punchlist which has been furnished to Landlord) and (ii)
obtain from the applicable governmental authority a temporary or final
certificate of occupancy and all final certificates of inspection or
instruments of a similar nature with respect to the Leased Premises which
may be required of Landlord by these Construction Provisions, the
PlansFinal Plans, any law, ordinance, rule, regulation or otherwise and/or
which are necessary for Tenant's opening of its business in the Leased
Premises (collectively, the "Occupancy Certifications") on or before the
date that is one hundred ten (110) days after the date the Work is
commenced (such date hereinafter being referred to as the "Target Date").
If, by the Target Date, the Work is not completed or the Occupancy
Certifications have not been obtained, Tenant, at its option, may, at any
time thereafter until the completion of the Work or the procurement of the
Occupancy Certifications, upon seventy-two (72) hours notice to Landlord,
complete the Work or obtain the Occupancy Certifications. Tenant may offset
any and all costs incurred by Tenant in performing the Work or obtaining
the Occupancy Certifications against Basic Rent and any other charges
otherwise due from Tenant hereunder, pursuant to Section 17(c) of this
Lease, until Tenant has been fully reimbursed for such costs. In the event
a final certificate of occupancy and/or all other final certificates of
inspection are not obtained by Landlord prior to Tenant's acceptance of
delivery of the Leased Premises on the Completion Date, Landlord shall
provide such final certificate of occupancy and all other final
certificates of inspection within thirty (30) days after the Completion
Date.
f) If Tenant does not exercise its right to complete the Work as provided
in Section 3(e) of these Construction Provisions and if "Substantial
Completion" (as hereinafter defined) has not occurred within forty-five
(45) days after the Target Date, Tenant, at its option, may, at any time
thereafter until completion of the Work and delivery of the Work, terminate
this Lease by giving written notice of such termination to Landlord.
Notwithstanding anything contained herein to the contrary, in the event
that completion of the Work and delivery of the Work have not occurred on
or before the Target Date, Tenant shall receive two (2) days of free rent
4
for each day that Landlord takes thereafter to complete the Work and
deliver the Work to Tenant.
g) In the event of termination of this Lease by Tenant pursuant to this
Section 3 of these Construction Provisions, Tenant shall have no liability
to Landlord hereunder or otherwise for such termination.
4. Delivery of Leased Premises.
a) Landlord shall give Tenant notice of the date on which Substantial
Completion has occurred (the "Notice of Completion"). For purposes of this
Lease, term "Substantial Completion" shall be deemed to occur when (i) all
elements of the Work as described herein have been completed in accordance
with the PlansFinal Plans and these Construction Provisions and (ii) the
Occupancy Certifications with respect to the Leased Premises which may be
required of Landlord by these Construction Provisions have been delivered
to Tenant.
b) Within fourteen (14) days after the Notice of Completion, Tenant will
inspect the Leased Premises and if to Tenant's satisfaction:
(1) Substantial Completion has occurred;
(2) all utilities sufficient to meet Tenant's requirements are
available in the Leased Premises and are operating; and
(3) the parking lot lighting has been installed and is operating;
then Tenant shall take delivery of the Leased Premises (the date of Tenant
taking delivery of the Leased Premises being hereinafter referred to as the
"Completion Date").
c) Tenant agrees to deliver a written punchlist to Landlord within fourteen
(14) days after the Completion Date. Landlord agrees promptly to complete
any items described on the punchlist. If Landlord does not complete such
punchlist items within thirty (30) days after Tenant has delivered the
punchlist to Landlord, Tenant may, at any time thereafter until completion
of the punchlist items, complete the punchlist items and Tenant may offset
any and all costs incurred by Tenant to complete such punchlist items
against Basic Rent and any other charges otherwise due by Tenant hereunder,
pursuant to Section 17(c) of this Lease, until Tenant has been fully
reimbursed. Notwithstanding anything contained herein to the contrary, in
the event that Landlord does not complete such punchlist items within
thirty (30) days after Tenant has delivered the punchlist to Landlord,
Tenant shall receive one (1) day of flee rent for each day in excess of
thirty (30) days that it takes Landlord and/or Tenant to complete such
punchlist items.
5. Change Orders.
5
a) Landlord and Tenant recognize that during the course of the Work Tenant
may desire to amend or revise the PlansFinal Plans If Tenant's proposed
amendments or revisions to the PlansFinal Plans do not increase, in the
aggregate, the cost or time required to complete the Work, then Tenant
shall have the absolute right to so amend or revise the PlansFinal Plans,
If the proposed amendments or revisions to the PlansFinal Plans increase,
in the aggregate, the cost or time required to complete the Work, then a
written change order incorporating such amendments or revisions shall be
prepared by Landlord and shall include, without limitation, the amount of
additional cost, if any, and the amount of additional time, if any,
required to complete the Work due to such amendments or revisions. All
amendments or revisions proposed by Tenant shall be submitted to Landlord
in writing, and Landlord shall obtain from the general contractor the
amount of additional cost, if any, and the amount of additional time, if
any, required to complete the Work due to such amendments or revisions,
which amounts shall be promptly submitted in writing to Tenant and Landlord
by the general contractor. The performance of the portion of the Work
proposed by the amendment or revision will not commence until a written
change order is approved in writing by Tenant's Director of Construction.
Immediately upon such approval of a written change order by Tenant's
Director of Construction, Tenant shall forward a copy of such approved
written change order to Landlord. Notwithstanding anything contained herein
to the contrary, Landlord shall be deemed to have approved any such
amendments or revisions proposed by Tenant if written notice of
disapproval, with reasons specified, is not received by Tenant within
fifteen (15) days following Tenant's delivery of such amendments or
revisions to Landlord.
b) Landlord may, during the course of the Work, make minor changes in the
PlansFinal Plans that are reasonably necessary for the proper execution of
the Work and are consistent with the PlansFinal Plans, but which do not
involve any increase in the cost or time required to complete the Work,
provided that Landlord provides Tenant with prior written notice of any
such changes. Furthermore, Landlord may make any minor changes in the
PlansFinal Plans required by any governmental authorities for the Work to
comply with any applicable laws, rules or regulations, provided that such
changes do not result in (i) a change in the exterior elevation of the
Building, (ii) a change in the ceiling height of the Building, (iii) a
change that reduces the number of parking spaces located on the Other
Improvements or (iv) a change in any exterior signage. Any change that does
not conform to the foregoing shall be submitted by Landlord to Tenant in
writing and shall include the amount of additional cost, if any, and the
amount of additional time, if any, required to complete the Work due to
such change. If the change order does not address any additional cost or
additional time, then no such additional cost or additional time shall be
allowed. The performance of the portion of the Work proposed by the
amendment or revision will not commence until a written change order is
approved in writing by Tenant's Director of Construction, immediately upon
such approval of a written change order by Tenant's Director of
Construction, Tenant shall forward a copy of such approved written change
order to Landlord.
6
Attachment 1
------------
Site Plan
---------
Graphic -- [GRAPHIC OMITTED]
Map of Commercial Site
7
Attachement II
--------------
Elevations
----------
Graphic -- [GRAPHIC OMITTED]
Map of Elevation of Commercial Site
8
EXHIBIT "C"
-----------
SUBORDINATION. NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
(Mortgage)
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made and entered into as of the ____day of________ , 20_, by and
between _____________, a ________________ ("Lender") and ADVANCE STORES COMPANY,
INCORPORATED, 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, by that certain Lease dated________________,_____(the "Lease"),
Tenant has leased from _________________ ("Landlord") that certain parcel of
land containing_____acres situated in__County, Town of_______, State
of______(the "State"), on which Landlord has constructed for Tenant's use a
square foot building and other improvements (collectively, the "Leased
Premises").
WHEREAS, Lender is the holder of a [mortgage] [deed of trust] on the Leased
Premises, given to Lender by Landlord dated as of , ___, recorded on
_______________,_____, in the Office of the Recorder of Deeds of______County,
____________________, in Book ______ at Page __, as Document No.
________________(collectively referred to herein with any other documents
securing the debt secured by such [mortgage] [deed of trust] as the "Mortgage").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Lender hereby consents to the Lease.
2. The Lease is and shall be subject and subordinate at all times to the lien
of the Mortgage and to all renewals, replacements and extensions of the
Mortgage to the full extent of the principal sum secured thereby and
interest thereon.
3. In the event Lender shall commence an action to foreclose the Mortgage or
to obtain a receiver of the Leased Premises, or shall foreclose the
Mortgage by advertisement, entry and sale according to any procedure
available under the laws of the State, Tenant shall not be joined as a
party defendant in any such action or proceeding and Tenant shall not be
disturbed in its possession of the Leased Premises, so long as Tenant is
not in default under any of the material terms, covenants, or conditions of
the Lease beyond any applicable cure period provided in the Lease.
4. In the event Lender shall acquire the Leased Premises upon foreclosure, or
by deed in lieu of foreclosure, or by any other means:
1
(a) Tenant shall be deemed to have made a full and complete attainment to
Lender as Landlord under the Lease so as to establish direct privity
between Lender and Tenant; and
(b) All rights and obligations under the Lease shall continue in full
force and effect and shall be enforceable with the same force and
effect as if the Lease had originally been made and entered into
directly by and between Lender, as Landlord thereunder, and Tenant;
and
(c) Lender shall recognize and accept the rights of Tenant and shall
thereafter assume the obligations of Landlord under the Lease.
5. Nothing herein contained shall impose any obligations upon Lender to
perform any of the obligations of Landlord under the Lease, unless and
until Lender shall become owner or mortgagee in possession of the Leased
Premises.
6. Any notice required or desired to be given under this Agreement shall be in
writing and shall be deemed given (a) upon receipt if delivered personally;
(b) two (2) business days after being deposited into the U.S. mail if being
sent by certified or registered mail, return receipt requested, postage
prepaid; or (c) one (1) business day after being sent by reputable
overnight air courier service (i.e., Federal Express, Airborne, etc.) with
guaranteed overnight delivery, and addressed as follows:
If to Lender:
______________________________________
______________________________________
______________________________________
If to Tenant: ADVANCE STORES COMPANY, INCORPORATED
0000 Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Department
Copy to: ADVANCE STORES COMPANY, INCORPORATED
0000 Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Either party, at any time and from time to time (by providing notice to the
other party in the manner set forth above), may designate a different
address or person, or both, to whom such notice may be sent.
7. This Agreement shall be binding upon and inure to the benefit of any person
or entity acquiring rights to the Leased Premises by virtue of the
Mortgage, and the successors, administrators and assigns of the parties
hereto.
8. No fixtures, furnishings, inventory, equipment or other personal property
of Tenant are subject to the lien of the Mortgage.
2
IN WITNESS WHEREOF, this Agieement has been signed and sealed on the day
and year first above set forth.
Attest: Ground Lessor
______________________________________
Lender:
__________________________ By:___________________________________
Name:_________________________________
Title:________________________________
Witness: Tenant:
ADVANCE STORES COMPANY, INCORPORATED
__________________________ By:___________________________________
Name:_________________________________
Title:________________________________
STATE OF_______________ )
)SS;
COUNTY OF_______________ )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that ______________ personally known to me to be
the _______________________________ of _________________________, a
_______________________________, and personally laiown to me to be the same
person whose names are subscribed to the foregoing instrument, appeared before
me this day in person and acknowledged under oath that as such
___________________________ he signed and delivered the said instrument pursuant
to authority duly given to him by said ..
Given under my hand and seal this____day of______________ , 20__
___________________________________
Notary Public
My Commission Expires: ________________________
3
COMMONWEALTH OF VIRGINIA )
)SS;
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify,
that__________,____________________________________of Advance Stores Company,
Incorporated, a Virginia corporation, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged under oath that as
such_____________________________, he signed and delivered the said instrument
pursuant to authority duly given to him by said corporation.
Given under my hand and seal this_________________________day of, 20____.
Notary Public
My Commission expires:_______________________
Prepared by and when recorded return to:
Advance Stores Company, Incorporated
Attn: Real Estate Department 0000
Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
4
EXHIBIT "C"
-----------
SUBORDINATION. NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
(Ground Lease)
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made and entered into as of the___day of__________ , 20_, by and
between ______, a _____________ ("Ground Lessor") and ADVANCE STORES COMPANY,
INCORPORATED, 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, by that certain Lease dated________________,_____(the "Lease"),
Tenant has leased from _________________ ("Landlord") that certain parcel of
land containing_____acres situated in__County, Town of_______, State
of______(the "State"), on which Landlord has constructed for Tenant's use a
square foot building and other improvements (collectively, the "Leased
Premises").
WHEREAS, Ground Lessor has entered into a Ground Lease dated as of
_______________,_____with Landlord with respect to the Leased Premises, as
evidenced and recorded on __________, ___, in the Office of the Recorder of
Deeds of ________________County,___________________, in Book__________at
Page_______, as Document No. ______________ (collectively referred to herein
with any amendments, renewals, replacements and extensions thereto as the
"Ground Lease").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Ground Lessor hereby consents to the Lease,
2. The Lease is a sublease and shall be subordinate at all times to the
Ground Lease.
3. In the event Ground Lessor shall decide to terminate the Ground Lease,
Tenant shall not be joined as a party defendant in any action or proceeding to
so terminate the Ground Lease and Tenant shall not be disturbed in its
possession of the Leased Premises, so long as Tenant is not in default under any
of the material terms, covenants, or conditions of the Lease beyond any
applicable cure period provided in the Lease.
4. In the event Ground Lessor shall terminate the Ground Lease:
(a) Tenant shall be deemed to have made a full and complete attomment to
Ground Lessor as Landlord under the Lease so as to establish direct
privity between Ground Lessor and Tenant; and
1
(b) All rights and obligations under the Lease shall continue in full
force and effect and shall be enforceable with the same force and
effect as if the Lease had originally been made and entered into
directly by and between Ground Lessor, as Landlord thereunder, and
Tenant; and
(c) Ground Lessor shall recognize and accept the rights of Tenant and
shall thereafter assume the obligations of Landlord under the Lease.
Nothing herein contained shall impose any obligations upon Ground Lessor to
perform any of the obligations of Landlord under the Lease, unless and until
Ground Lessor shall terminate the Ground Lease.
Any notice required or desired to be given under this Agreement shall be in
writing and shall be deemed given (a) upon receipt if delivered personally; (b)
two (2) business days after being deposited into the U.S. mail if being sent by
certified or registered mail, return receipt requested, postage prepaid; or (c)
one (1) business day after being sent by reputable overnight air courier
service (i.e., Federal Express, Airborne, etc.) with guaranteed overnight
delivery, and addressed as follows:
If to Ground Lessor: ______________________________
______________________________
______________________________
If to Tenant: ADVANCE STORES COMPANY, INCORPORATED
0000 Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Department
Copy to: ADVANCE STORES COMPANY, INCORPORATED
0000 Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Either party, at any time and from time to time (by providing notice to the
other party in the manner set forth above), may designate a different address
or person, or both, to whom such notice may be sent.
This Agreement shall be binding upon and inure to the benefit of any person or
entity acquiring rights to the Leased Premises by virtue of the Ground Lease,
and the successors, administrators and assigns of the parties hereto.
No fixtures, furnishings, inventory, equipment or other personal property of
Tenant are subject to the Ground Lease,
2
IN WITNESS WHEREOF, this Agieement has been signed and sealed on the day
and year first above set forth.
Attest: Ground Lessor
______________________________________
Lender:
__________________________ By:___________________________________
Name:_________________________________
Title:________________________________
Witness: Tenant:
ADVANCE STORES COMPANY, INCORPORATED
__________________________ By:___________________________________
Name:_________________________________
Title:________________________________
STATE OF_______________ )
)SS;
COUNTY OF_______________ )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that ______________ personally known to me to be
the _______________________________ of _________________________, a
_______________________________, and personally laiown to me to be the same
person whose names are subscribed to the foregoing instrument, appeared before
me this day in person and acknowledged under oath that as such
___________________________ he signed and delivered the said instrument pursuant
to authority duly given to him by said ..
Given under my hand and seal this____day of______________ , 20__
___________________________________
Notary Public
My Commission Expires: ________________________
3
COMMONWEALTH OF VIRGINIA )
)SS;
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify,
that__________,____________________________________of Advance Stores Company,
Incorporated, a Virginia corporation, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged under oath that as
such_____________________________, he signed and delivered the said instrument
pursuant to authority duly given to him by said corporation.
Given under my hand and seal this_________________________day of, 20___ .
Notary Public
My Commission expires:_______________________
Prepared by and when recorded return to:
Advance Stores Company, Incorporated
Attn: Real Estate Department 0000
Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
4
EXHIBIT "D" Commencement Agreement
----------------------------------
COMMENCEMENT DATE AGREEMENT
---------------------------
THIS COMMENCEMENT DATE AGREEMENT, made as of this ______ day of _________,
20__, between___________________, a___________________(herein called
"Landlord'"), and ADVANCE STORES COMPANY, INCORPORATED, a Virginia corporation
(herein called "Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of certain premises situated in _______,
____________________County, _________________(herein called the "Leased
Premises"); and
WHEREAS, by that certain lease dated ___________, 20__ (herein called the
"Lease"), Landlord leased the Leased Premises to Tenant; and
WHEREAS, a memorandum or short form lease in respect of the Lease was
recorded in the office of the________of________________County,____________, on
the___day of_______________, 20__, in Book_____________at Page____; and
WHEREAS, Tenant is in possession of the Leased Premises and the term of the
Lease; and
WHEREAS, under Section 4 of the Lease, Landlord and Tenant agreed to enter
into an agreement setting forth certain information in respect of the Leased
Premises and the Lease;
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. The Rent Commencement Date (as such term is defined in the Lease) was,
_, 20__. The term of the Lease shall expire on____, 20_unless Tenant exercises
any option to extend the term of the Lease or unless the Lease terminates
earlier as provided in the Lease.
2. The date of commencement of the first "Option Period" (as such term is
defined in the Lease) shall be________, 20__if Tenant effectively exercises its
option in respect thereof, and if Tenant does so, the term of the Lease shall
expire on_____, 20 , unless Tenant exercises any option to further extend the
term of the Lease or the Lease terminates earlier as provided in the Lease.
3. The date of commencement of the second Option Period shall be, 20_if
Tenant effectively exercises its option in respect thereof, and if Tenant does
so, the term of the
1
Lease shall expire on______, 20_unless Tenant exercises any option to further
extend the term of the Lease or the Lease terminates earlier as provided in the
Lease,
4. The date of commencement of the third Option Period shall be_, 20_if
Tenant effectively exercises its option in respect thereof, and if Tenant does
so, the term of the Lease shall expire on______, 20_unless the Lease terminates
earlier as provided in the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
LANDLORD:
______________________________________
By:______________________________
Name:____________________________
Title:___________________________
TENANT:
ADVANCE STORES COMPANY, INCORPORATED,
a Virginia corporation
By:______________________________
Name:____________________________
Title:___________________________
2
EXHIBIT "E"
-----------
Estoppel Certificate
--------------------
To:
The undersigned, as Tenant, under that certain Lease Agreement, with
___________________________________, as Landlord, dated_______, (the "Lease")
for those certain premises containing_ acres located in/on ________, ___________
County,________, as more particularly described in the Lease, does hereby state,
certify and affirm as follows:
1. That the Lease, as of the date hereof, is in full force and effect and
is unmodified except as follows:
2. That the commencement date of the Lease was _____________, the
expiration date of the initial term is_____.
3. That, as of the date hereof; the fixed monthly rent under the Lease is
$___________and all of such rent due has been paid.
4. That Tenant has no knowledge, as of the date hereof, of any event or
condition which now or in the future would give rise to a defense to the payment
of or offset against rent.
5. That to the best knowledge and belief of Tenant, Tenant is not in
default under any of the terms or provisions of the Lease to be performed by
Tenant.
6. That to the best knowledge and belief of Tenant, Landlord is not in
default under any of the terms or provisions of the Lease to be performed by
Landlord.
WITNESS the following signature as of the_________________day of , 20__.
ADVANCE STORES COMPANY, INCORPORATED
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT "F"
-----------
Lease Memorandum
----------------
Prepared By:
MEMORANDUM OF LEASE
This Memorandum of Lease (this "Memorandum") is made this day of
________________, 20__, between_____________________, a ______________________
("Landlord"), and ADVANCE STORES COMPANY, INCORPORATED, a Virginia
corporation ("Tenant").
WITNESSETH:
Landlord and Tenant have entered into a Lease (the "Lease") dated__,
20__, whereby Landlord has leased to Tenant that certain premises located on
that certain real property, located in_____County, State of_____(the
"Property"), the legal description of which Property is set forth on Exhibit
"A" attached hereto. The Lease contains provisions and rights appurtenant to
the Property, some of which are as follows:
I. Term. The term of the Lease is for a period of fifteen (15) years from the
"Rent Commencement Date" (as established in the Lease), commencing on the
"Commencement Date" (as established in the Lease). Thereafter, Tenant has
the right under the Lease to renew and extend the term of the Lease for
three (3) successive periods of five (5) years each,
II. Exclusive Use Rights. The Lease provides that neither Landlord nor any
stockholder, member, partner, beneficiary, successor, assign, personal
representative, heir, subsidiary or affiliate of Landlord, nor any
person(s) or entity(ies) having a direct or indirect interest in Landlord,
shall, for as long as the Lease remains in force and effect, either
directly or indirectly, own, occupy or operate, or sell, lease or otherwise
transfer to any person or entity, or permit any person or entity to occupy,
any land, building, premises or space, whether presently owned or hereafter
acquired, located within two (2) miles of the Property for the purpose of
(i) conducting thereon a business similar to that being conducted by Tenant
on the Property or (ii) the sales, display or rental of automotive parts,
accessories, supplies and/or maintenance items. The Lease further provides
that neither Landlord nor any stockholder, member, partner, beneficiary,
successor, assign, personal representative, heir, subsidiary or affiliate
of Landlord, nor any person(s) or entity(ies) having a direct or indirect
interest in Landlord, shall lease, sell or otherwise transfer or convey any
such premises adjacent to and/or contiguous with the Leased Premises
without imposing thereon a restriction to secure compliance herewith, or
permit any tenant or occupant of any such premises or any part thereof to
1
sublet or assign in any manner, directly or indirectly, any part thereof to
any person, firm, corporation or other entity engaged in any such business
described above, without the prior written consent of Tenant, which consent
may be withheld by Tenant in Tenant's sole discretion.
III. Successors The covenants, conditions and agreements made and entered into
by the parties hereto shall be binding upon and inure to the benefits of
their respective heirs, administrators, executors, representatives,
successors and assigns.
IV. Incorporation of Lease. All terms and conditions of the Lease are hereby
incorporated herein by reference as if fully set forth herein.
V. Conflicts with Lease. This Memorandum is solely for notice and recording
purposes and shall not be construed to alter modify, expand, diminish or
supplement the provisions of the Lease. In the event of any inconsistency
between the provisions of this Memorandum and the provisions of the Lease,
the provisions of the Lease shall govern.
IN WITNESS WHEREOF, this Memorandum has been duly executed by the parties
hereto as of the day and year first above written.
____________________________, a
____________________________
By:______________________________
Name:____________________________
Title:___________________________
ADVANCE STORES COMPANY, INCORPORATED,
a Virginia corporation
By:______________________________
Name:____________________________
Title:___________________________
2
STATE OF________________ )
)SS;
COUNTY OF_______________ )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that _____________ personally known to me to be
the ______________________________ of _________________________, a
______________________________, and personally known to me to be the same person
whose names are subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged under oath that as such
__________________________ he signed and delivered the said instrument pursuant
to authority duly given to him by said .
Given under my hand and seal this___________day of_______________ , 20____.
____________________________
Notary Public
My Commission Expires:_______________________
COMMONWEALTH OF VIRGINIA )
)SS;
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify,
that___________,____________________________________of Advance Stores Company,
Incorporated, a Virginia corporation, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged under oath that as
such_____________________________, he signed and delivered the said instrument
pursuant to authority duly given to him by said corporation.
Given under my hand and seal this___________day of_______________ , 20____.
____________________________
Notary Public
My Commission Expires:_______________________
3
EXHIBIT A
==============
LEGAL DESCRIPTION OF PROPERTY
==================================
4
EXHIBIT "G"
-----------
Declaration
-----------
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
-----------------------------------------------------
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
----------------------------------------------------------
(this "Declaration") is made as of the ______________________ day of , 20 ,
by _________________________________, a________________________("Declarant").
WITNESSETH: WHEREAS, Declarant is the owner in fee simple of those certain
tracts or parcels of real property located in the City of___, County
of_________, State of____________ (the "Property"), which Property is more
particularly described on Exhibit A attached hereto and is shown on the site
plan attached hereto as Exhibit B (the "Site Plan"), both of which exhibits are
incorporated herein by this reference; and
WHEREAS, Declarant and Advance Stores Company, Incorporated, a Virginia
corporation ("Advance"), have entered into a lease (such lease, including all
future amendments thereto and renewals and extensions thereof, shall be
hereinafter referred to as the "Advance Lease") to construct an Advance Auto
Parts store upon that portion of the Property designated as the "Advance Leased
Premises" on the Site Plan (the "Advance Leased Premises'"); and
WHEREAS, Declarant wishes to subject the Property to certain covenants,
conditions and restrictions as set forth herein.
NOW, THEREFORE, in consideration of the benefits to be realized by the
covenants set forth herein, Declarant hereby declares and agrees that the
Property shall be held, sold and conveyed subject to the following covenants,
conditions and restrictions which are for the purpose of protecting the value
and desirability of the Property.
1. Use Restrictions.
a. For so long as the Advance Lease is in effect, no portion of the
Property, except for the Advance Leased Premises, nor any portion of any
land, building, premises or space owned, leased, sold, transferred,
operated or otherwise occupied (whether presently owned, leased, operated
or occupied or hereafter acquired), either directly or indirectly, by
Declarant or any stockholder, member, partner, beneficiary, successor,
assign, personal representative, heir, subsidiary or affiliate of
Declarant, or any person(s) or entity(ies) having a direct or indirect
interest in Declarant, located within two (2) miles of the Property, may be
used for any of the following purposes:
(i) any business similar to that being conducted by Advance on
the Advance Leased Premises; or
1
(ii) the sales, display or rental of automotive parts,
accessories, supplies and/or maintenance items.
b. For so long as the Advance Lease is in effect, neither Declarant
nor any stockholder, member, partner, beneficiary, successor, assign,
personal representative, heir, subsidiary or affiliate of Declarant, nor
any person(s) or entity(ies) having a direct or indirect interest in
Declarant, shall lease, sell or otherwise transfer or convey any such
premises adjacent to and/or contiguous with the Advance Leased Premises
without imposing thereon a restriction to secure compliance herewith, or
permit any tenant or occupant of any such premises or any part thereof to
sublet or assign in any manner, directly or indirectly, any part thereof to
any person, firm, corporation or other entity engaged in any such business
described above, without the prior written consent of Advance, which
consent may be withheld by Advance in Advance's sole discretion. 2. Term
and Enforcement. The covenants, conditions, restrictions and obligations
created and imposed herein shall be effective upon the date hereof, shall
run with the land, and shall inure to the benefit of and be binding upon
the Parties and their respective heirs, executors, administrators,
successors, successors-in-title, assigns, tenants, customers, employees and
invitees for so long as the Advance Lease is in effect. Such restrictions
and obligations shall be unaffected by any change in the ownership of all
or any portion of the Property or by any change of use, demolition,
reconstruction, expansion or other circumstances, except as specified
herein. Each of the rights created hereunder may be enforceable in a court
of equity by (i) the owner of any portion of the Property, (ii) any
mortgagee of any portion of the Property and (iii) Advance; however,
enforcement hereunder shall be sought solely against the then owner(s) of
the Property (or the owner of an interest in the Property) alleged to be in
default. 3. Severability. In the event any provision or portion of this
Declaration is held by any court of competent jurisdiction to be invalid or
unenforceable, such holding will not effect the remainder hereof, and the
remaining provisions shall continue in full force and effect at the same
extent as would have been the case had such invalid or unenforceable
provision or portion never been a part hereof 4. Breach, hi the event of
breach or threatened breach of this Declaration, Declarant and/or Advance
(so long as the Advance Lease is in effect) shall be entitled to institute
proceedings for full and adequate relief from the consequences of such
breach or threatened breach. In the event that a party shall institute any
action or proceeding against another party relating to the provisions
hereof, or any default hereunder, then, and in that event, to the extent
permitted by applicable law, the unsuccessful party in such action or
proceeding shall reimburse the successful party therein the reasonable
expenses of attorneys' fees, court costs and other costs incurred therein
by the successful party through all levels of proceedings.
5. Counterparts. This Declaration may be executed in one or more
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
2
6. Amendment to Declaration. This Declaration shall not be amended or
modified without the prior written consent of Declarant and Advance.
IN WITNESS WHEREOF, Declarant has executed and delivered this Declaration
as of the day and year first written above.
DECLARANT:
By:______________________________
Name:____________________________
Title:___________________________
3
STATE OF________________ )
)SS;
COUNTY OF________________ )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that _____________ personally known to me to be
the ______________________________ of _________________________, a
______________________________, and personally known to me to be the same person
whose names are subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged under oath that as such
__________________________ he signed and delivered the said instrument pursuant
to authority duly given to him by said ,
Given under my hand and seal this___________day of_______________ , 20____.
____________________________
Notary Public
My Commission Expires:_______________________
COMMONWEALTH OF VIRGINIA )
)SS;
COUNTY OF ROANOKE )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify,
that__________,_____________________________________of Advance Stores Company,
Incorporated, a Virginia corporation, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged under oath that as
such_____________________________, he signed and delivered the said instrument
pursuant to authority duly given to him by said corporation.
Given under my hand and seal this___________day of_______________ , 20____.
____________________________
Notary Public
My Commission Expires:_______________________
4
EXHIBIT A
============
LEGAL DESCRIPTION OF PROPERTY
5
EXHIBIT B
==========
SITE PIAN
6
EXHIBIT "H"
-----------
Permitted Encumbrances
----------------------
1. Such utility easements as are necessary to supply utility services to the
Leased Premises, provided, however, that no easements shall run underneath the
Building nor above or immediately adjacent to (and above ground) the Building so
as to obstruct visibility of the Building. Utility easements areas shall be
subject to review and approval by Tenant as part of the Plans.
2. Restrictive Covenant contained in Warranty Deed from M. Xxxxxx Xxxx to Xxxxxx
X. Xxxxx and Xxxx X. Xxxxx, filed December 15, 1997 and recorded in Deed Book
23691, page 297, Xxxxxx County, Georgia records.
3. Joint Use Driveway Agreement (non-exclusive) between Xxxxx Enterprises, Inc.
and M. Xxxxxx Xxxx, dated May 20, 1999 and recorded in Deed Book 26731, page
349, Xxxxxx County, Georgia records.
4. Access, Drainage and Utility Cross-Easement Declaration to be recorded
substantially in the form attached hereto as Exhibit "H-l" in the Xxxxxx County,
Georgia records.
5. Perpetual Easement Agreement to be recorded substantially in the form
attached hereto as Exhibit "H-2" in the Xxxxxx County, Georgia records.
1
Exhibit "H-l"
-------------
Access, Drainage and Utility Cross-Easement Declaration
-------------------------------------------------------
THIS INSTRUMENT PREPARED BY AND AFTER RECORDING RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxx, L.L.P.
Monarch Plaza, Suite 1600
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
ACCESS, DRAINAGE AND UTILITY CROSS-EASEMENT DECLARATION
THIS ACCESS, DRAINAGE AND UTILITY CROSS-EASEMENT DECLARATION (this
"Declaration") is made and declared as of the day of March, 2004, by Cross
Country Properties III, LLC, a Georgia limited liability company ("CROSS
COUNTRY" or "Declarant").
R E C I T A L S
---------------
CROSS COUNTRY is the owner of certain real property located in Land
Xxxx 00 xx xxx 0xx Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia,
which property is more particularly described on Exhibit "A" attached
hereto and made a part hereof (the "Property").
CROSS COUNTRY may develop the Property in two separate tracts and at
different times, which tracts are defined herein as "Tract 2" (.8912
acres), and more particularly described on Exhibit "B" hereto, and as
"Tract 3" (.5502 acres), and more particularly described on Exhibit "C"
hereto, as such tracts are described in a survey prepared for The Xxxxx
Group, LLC, Cross Country Properties III, LLC, Fidelity National Title
Insurance Company and CCI Southeast, LLC dated February 9, 2004,
CROSS COUNTRY has entered into a certain Lease Agreement between
Advance Stores Company, Incorporated, as lessee, and Cross Country, as
lessor (the "Advance Lease") with respect to Tract 2, and
CROSS COUNTRY wishes to establish certain easements across the
Property for the benefit of both tracts of the Property, which easements
include, without limitation, an easement for vehicular traffic and for
pedestrian and vehicular ingress and egress in, to, upon, over and across
such driveways, roadways, sidewalks, parking areas, parking spaces and
walkways as may now or hereafter exist on either tract of the Property , an
easement for drainage upon, over and across the Property, and an easement
for utilities in, to, upon, over and across the Property, all of said
2
easements being for the benefit of both Tract 2 and Tract 3 of the
Property.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. ACCESS EASEMENT. CROSS COUNTRY establishes for the benefit of the
Property and both Tracts thereof and hereby grants and conveys in the 25' wide
cross access easement area described on Exhibit "D" and the additional Access
Easment described on Exhibit "G" as shown on Exhibit "H" attached hereto and
made a part hereof (the "Access Easement Area"), across Tract 2 for the benefit
of Tract 3 and across Tract 3 for the benefit of Tract 2, a reciprocal,
perpetual, nonexclusive easement for pedestrian and vehicular (including, but
not limited to, cars, trucks and construction vehicles) ingress and egress in,
to, upon, over and across the Access Easement Area to and from Tract 2 and to
and from Tract 3 and any and all improvements constructed on either of the
tracts.
The owner of Tract 2 shall be solely responsible at its own expense for
maintaining the Access Easement Area situated on Tract 2 and all improvements
thereon in good condition and repair including, but not limited to, snow and ice
removal, sweeping, and general repairs and maintenance of all paved areas.
The owner of Tract 3 shall be solely responsible at its own expense for
maintaining the Access Easement Area situated on Tract 3 and all improvements
thereon in good condition and repair including, but not limited to, snow and ice
removal, sweeping, and general repairs and maintenance of all paved areas.
2. DRAINAGE EASEMENT. CROSS COUNTRY establishes for the benefit of Tract 2
and hereby grants and conveys a perpetual, nonexclusive drainage and retention
easement for the purpose of surface water drainage from Tract 3 over, across,
under and through the drainage retention area situated on Tract 2 as described
on Exhibit "E" attached hereto and made a part hereof ("Drainage Easement
Area"). The Drainage Easement Area shall include all drainage infrastructure
("Drainage Facilities") to be located within the Drainage Easement Area,
including without limitation, detention devices, catch basins and outfall pipes
and devices, and the inflow pipes and devices to the detention facility to be
located off the property within such area as is necessary to service the
Property in accordance with existing zoning, platting and site plan approvals of
the Property, and in accordance with all governmental authority having
jurisdiction of said Tracts.
The owner of Tract 2 shall be solely responsible at its own expense for
maintaining the Drainage Easement Area situated on Tract 2 and all improvements
thereon in good condition and repair; provided, however, the owner of Tract 3
shall be responsible to reimburse the owner of Tract 2 for the costs of
maintaining any portion of the Drainage Facilities situated within the Drainage
-2-
Easement Area which exclusively serve Tract 3.
3. UTILITY EASEMENT. CROSS COUNTRY establishes for the benefit of the
Property and both Tracts thereof and grants and conveys across Tract 2 for the
benefit of Tract 3 and across Tract 3 for the benefit of Tract 2, a reciprocal,
perpetual, nonexclusive easement in, to, upon, over and across the utility
easement area ("Utility Easement Area") as described on Exhibit "F" attached
hereto and made a part hereof, for constructing, maintaining, repairing,
replacing, and using utility systems which serve either tract or the Property in
general (including, but not limited to sanitary sewer, water, electricity, gas,
cable and telephone) and also for the purpose of connecting into utility systems
which now exist or which may hereafter exist on the Property or either tract
thereof.
The owner of Tract 2 shall be solely responsible at its own expense for
maintaining the Utility Easement Area situated on Tract 2 and all improvements
situated thereon in good condition and repair.
The owner of Tract 3 shall be solely responsible at its own expense for
maintaining the Utility Easement Area situated on Tract 3 and all improvements
situated thereon in good condition and repair.
4. TEMPORARY CONSTRUCTION EASEMENT FOR IMPROVEMENTS. CROSS COUNTRY
establishes for the benefit of the Property and both Tracts thereof and hereby
grants and conveys on Tract 2 for the benefit of Tract 3 and on Tract 3 for the
benefit of Tract 2, a reciprocal, temporary non-exclusive grading and
construction easement in, to, over, under, across and through the Property, as
necessary for the purposes of grading, leveling and for the construction and
installation of (a) any infrastructure improvements within the Access Easement
Area, the Utility Easement Area or the Drainage Easement Area, and (b) any
improvements on Tract 2 and Tract 3. All improvements within the easement areas
described herein shall be performed in a good and workmanlike manner in
accordance with all applicable governmental laws, rules, ordinances and
regulations. This temporary construction easement shall terminate upon the
completion of initial grading, leveling, construction and installation of the
infrastructure improvements and the improvements on both Tract 2 and Tract 3.
5. RELOCATION OF EASEMENTS. CROSS COUNTRY and its successors and assigns
may record a written declaration or agreement modifying this Declaration for the
purpose of evidencing the specific "as-built" location of the various easements
granted and established herein, or upon completion of construction on either of
the infrastructure improvements and the improvements on the Tracts that comprise
the Property, may substitute exhibits or record a plat that more specifically
describe the easement areas described herein.
Except as otherwise specifically provided herein, this Declaration is
nonexclusive and nothing contained herein shall be deemed to restrict CROSS
COUNTRY or its successors or assigns from granting utility easements, access
-3-
easements, parking easements or other similar easements or rights over, under or
through the Property, provided said easements do not interfere with the purpose
and use of the easement areas established by the Declaration.
Notwithstanding anything contained herein to the contrary, CROSS COUNTRY
herewith reserves the right to relocate any utility system located on the
Property or either tract thereof, provided, however, that neither CROSS COUNTRY
nor its successors or assigns shall block, close, relocate, alter or impede the
free flow of traffic to, from or across the Access Easement Area without the
express consent of Advance, in its sole discretion.
6. OTHER. Any improvements made from time to time upon Tract 2 within any
easement area defined herein shall be and remain the property of the owner of
Tract 2. Any improvements made from time to time upon Tract 3 within any
easement area defined herein shall be and remain the property of the owner of
Tract 3.
The owner of Tract 3 shall not cause or permit any activity on Tract 3
which materially interferes with the visibility of Advance's signage located on
Tract 2.
Advance is intended to be a third party beneficiary of this Declaration,
and this Declaration may be enforced by Advance during the term of the Advance
Lease, as the same may be extended from time to time, so long as Advance is not
in default under the Advance Lease.
7. REMEDIES. If the owner of either Tract 2 or Tract 3 shall default in the
performance of maintenance obligations hereunder (the "Defaulting Party"), the
non-defaulting owner of either Tract 2 or Tract 3 (the "Non-Defaulting Party"),
in addition to all other remedies it may have at law or in equity, after ten
(10) days' prior written notice to the Defaulting Party, shall have the right to
perform such obligation on behalf of the Defaulting Party so long as said repair
does not exceed One Thousand Dollars ($1,000.00) per annum. In such event, the
Defaulting Party shall promptly reimburse the Non-Defaulting Party the cost
thereof, together with interest thereon from the date of outlay at a rate equal
to eighteen percent (18%) per annum. Any such claim for reimbursement, together
with interest thereon as aforesaid, shall be secured by a lien on the Defaulting
Party's Parcel (i.e., either Tract 2 or Tract 3) and all improvements thereon,
which lien shall be effective upon the Non-Defaulting Party's recording of
notice thereof in the public records of Xxxxxx County, Georgia; and the
Non-Defaulting Party may enforce said lien in the same manner as a construction
lien under Georgia law.
Notwithstanding anything to the contrary contained herein, the maintenance
and other obligations of CROSS COUNTRY, and its successors and assigns,
pertaining to Tract 2, shall terminate upon the sale of Tract 2.
-4-
Notwithstanding anything to the contrary contained herein, the maintenance
and other obligations of CROSS COUNTRY, and its successors and assigns,
pertaining to Tract 3, shall terminate upon the sale of Tract 3.
8. USE RESTRICTIONS. CROSS COUNTRY, to be binding upon its successors and
assigns, agrees that for so long as the Advance Lease remains in effect for the
premises located on Tract 2, as said lease may be extended from time to time,
neither all nor any portion of Tract 3 be leased to, transferred to, or used by
any person or entity having as its primary business thereon the sale, display or
rental of automotive parts, accessories, supplies and/or maintenance items. This
restriction shall not prohibit or limit the use of Tract 3 for (a) an automotive
sale or rental business, or (b) an automotive service or repair facility such as
an oil/lube center, muffler shop, transmission shop, brake shop, or the like.
9. RUN WITH THE LAND. The easements and the covenants contained herein are
appurtenant to the Property and shall run with the Property and Tract 2 and
Tract 3 thereof, and shall be binding upon, and inure to the benefit of CROSS
COUNTRY, its successors and assigns, including any and all future record owners
of all or any part of the Property and either of Tract 2 or Tract 3. The access
easement, drainage easement and utility easement established herein may be used
by tenants of CROSS COUNTRY, including Advance and by their respective
employees, contractors, agents, customers, licensees, invitees and successors
and assigns.
10. NO DEDICATION TO PUBLIC. Nothing contained herein shall be deemed to
constitute any dedication to the public or for public use of the Property.
11. CONDEMNATION, In the event all or any portion of the Property is taken
by condemnation (or by deed in lieu thereof), the easements described herein
burdening such land granted hereby shall be deemed terminated and extinguished
to the extent so condemned. Nothing herein shall be deemed to prohibit CROSS
COUNTRY from receiving any condemnation award based upon CROSS COUNTRY'S
interest in the Property or either of Tract 2 or Tract 3 as it may appear
herein.
12. AMENDMENT. This Declaration may only be amended or modified by an
instrument in writing executed by CROSS COUNTRY, its successors and assigns, and
recorded in the deed records of Xxxxxx County, Georgia.
13. SEVERABILITY. Every provision of the Declaration is hereby declared to
be independent of, and separable from, every other provision. If any provision
shall be held to be invalid or unenforceable, that holding shall be without
effect upon the validity, enforceability or running of any other provision of
this Declaration.
14. CAPTIONS. All captions in this Declaration are for convenience only and
do not in any way limit or amplify the provisions hereof.
-5-
15. GOVERNING LAW. This Declaration shall be governed by and construed in
accordance with the laws of the State of Georgia, without regard to conflicts of
law principles.
IN WITNESS WHEREOF, CROSS COUNTRY has caused this Declaration to be
executed under seal by its duly authorized representative as of the date first
above written.
Signed, sealed "CROSS COUNTRY"
and delivered
in the presence of: CROSS COUNTRY PROPERTIES III,
LLC, a Georgia limited liability company By:__ (SEAL)
Name: Xxx X. Xxxxx
Title: President
_________________________________
Notary Public
My commission expires: ___________________
[NOTARIAL SEAL]
-6-
Access, Drainage and Utility Cross Easement
-------------------------------------------
Declaration Cross Country Properties m, LLC
-------------------------------------------
Exhibit "A"
------------
Combined Tract 2 and Tract 3
----------------------------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
BEGINNING at a concrete right-of-way monument found at the intersection of the
northern right-of-way line of U.S. Highway 29 (aka Roosevelt Highway) (a
variable width right-of-way) and the Land Lot line common to Land Lots 69 and
92; Thence running along said northern right-of-way line of U.S. Highway 29,
South 70(degree)12'21" West, 313.47 feet to a point and the true POINT OF
BEGINNING; Thence, South 70(degree)12'21" West, 93.64 feet to a point; Thence,
195.81 feet along the arc of a curve to the left having a radius of 1523.89 feet
and being scribed by a chord bearing South 67(degree)38'48" West, 195.68 feet to
a point; Thence leaving the northern right-of-way line of U.S. Highway 29, North
20(degree)04'56" West, 219.57 feet to a point; Thence, North 68(degree)28'52"
East, 290 36 feet to a point; Thence, South 19(degree)47'39' East, 219.57 feet
to a point on the northern right-of-way line of US. highway 29 and the true
POINT OF BEGINNING.
TOGETHER WITH, all of Grantor's rights (non-exclusive) under that certain Joint
Use Driveway Agreement between Xxxxx Enterprises, Inc and M. Xxxxxx Xxxx, dated
May 20, 1999, filed May 25, 1999 and recorded in Deed Book 26731, page 349,
aforesaid records.
Said tract contains 1,4414 acres (62,790 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties HI, LLC,
Fidelity National Title Insurance Company and CCI Southeast, LLC dated February
9, 2004.
Access, Drainage and Utility Cross Easement Declaration
-------------------------------------------------------
Cross Country Properties DX 1X.C
--------------------------------
Exhibit "B"
-----------
Tract 2
-------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
To find the true point of beginning, commence at a concrete right-of-way
monument found at the intersection of the northern right-of-way line of U.S.
Highway 29 (aka Roosevelt Highway) (a variable width right-of-way) and the Land
Lot line common to Land Lots 69 and 92; thence running along said northern
right-of-way line of U.S. Highway 29, South 70(degree)12'21" West, 219.83 feet
to a point and the true POINT OF BEGINNING; Thence running, South
70(degree)12'21" West, 93.64 feet to a point; Thence, 84.84 feet along the arc
of a curve to the left having a radius of 1523.89 feet and being scribed by a
chord bearing South 69(degree)43'58" West, 84.83 feet to a point; Thence
leaving said northern right-of-way line of U.S. Highway 29 and running, North
20(degree)05'27" West, 214.87 feet to a point; Thence, North 68(degree)28'52"
East, 179.66 feet to a point, Thence, South 19(degree)47'39" East, 219.57 feet
to a point on the aforesaid northern right-of-way line of U.S. Highway 29 and
the true POINT OF BEGINNING.
TOGETHER WITH, all of Declarant's rights (non-exclusive) under that certain
Joint Use Driveway Agreement between Xxxxx Enterprises, Inc. and M. Xxxxxx Xxxx,
dated May 20, 1999, filed May 25, 1999 and recorded in Deed Book 26731, page
349, aforesaid records.
Said tract contains 0 8912 acres (38,822 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties IE, LLC;
Fidelity National Title Insurance Company and CCI Southeast, LLC by Site Design
Services, Inc. dated February 6, 2004.
Access, Drainage and Utility Cross Easement Declaration
Cross Country Properties M, LLC
Exhibit "C"
Tract 3
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows.
To find the true point of beginning, commence at a concrete right-of-way
monument found at the intersection of the northern right-of-way line of US
Highway 29 (aka Roosevelt Highway) (a variable width right-of-way) and the Land
Lot line common to Land Lots 69 and 92; thence running along said northern
right-of-way line of U.S. Highway 29, South 70(degree)12'21" West, 219.83 feet
to a point, thence, South 70(degree)12'21" West, 93 64 feet to a point; thence,
84.84 feet along the arc of a curve to the left having a radius of 1523 89 feet
and being scribed by a chord bearing South 69(degree)43'58" West, 84 83 feet to
a point and the true POINT OF BEGINNING, Thence running, 110 97 feet along the
arc of a curve to the left, having a radius of 1523 89 feet and being scribed by
a chord bearing South 66(degree)03'06" West, 110.95 feet to a point, Thence
leaving said northern right-of-way line of US. Xxxxxxx 00 and running, North
20(degree)04'56" West, 219.57 feet to a point; Thence, North 68(degree)28'52"
East, 110.70 feet to a point; Thence, South 20(degree)05'27" East, 214,87 feet
to a point on the aforesaid northern right-of-way line of U.S. Highway 29 and
the true POINT OF BEGINNING
TOGETHER WITH, all of Declarant's rights (non-exclusive) under that certain
Joint Use Driveway Agreement between Xxxxx Enterprises, Inc and M. Xxxxxx Xxxx,
dated May 20, 1999, filed May 25, 1999 and recorded in Deed Book 26731, page
349, aforesaid records.
Said tract contains 0.5502 acres (23,967 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties HI, LLC;
Fidelity National Title Insurance Company and CCI Southeast, LLC by Site Design
Services, Inc. dated February 6 2004.
Access, Drainage and Utility Cross Easement
-------------------------------------------
Declaration Cross Country Properties HL, LLC
--------------------------------------------
Exhibit "D"
-----------
Access Easement
---------------
All that tract or parcel of land lying and being in Lan'd Xxx 00 xx xxx 0"0
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
To find the point of beginning, commence at a concrete right-of-way monument
found at the intersection of the northern right-of-way line of U.S. Highway 29
(aka Roosevelt Highway) (a variable width right-of-way) and the Land Lot line
common to Land Lots 69 and 92; thence running along said northern right-of-way
line of U.S. Highway 29, South 70(degree)12'21" West, 219.83 feet to a point;
thence leaving said northern right-of-way line of U.S. Highway 29 and running,
North 19(degree)47'39" West, 39.58 feet to a point and the true POINT OF
BEGINNING; Thence running, South 70(degree)01'02" West, 289.37 feet to a point;
Thence, North 20(degree)05'26" West, 25.00 feet to a point; Thence, North
70(degree)01'02" East, 289.50 feet to a point; Thence, South 19(degree)47'39"
East, 25.00 feet to a point and the true POINT OF BEGINNING.
Said tract contains 0.1661 acres (7,236 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties m, LLC;
Fidelity National Title, Insurance Company and CCI Southeast, LLC by Site Design
Services, Inc. dated February 9, 2004.
Access, Drainage and Utility Cross Easement
-------------------------------------------
Declaration Cross Country Properties m, LLC
-------------------------------------------
Exhibit "E"
-----------
Drainage Easement
-----------------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
To find the point of beginning, commence at a concrete right-of-way monument
found at the intersection of the northern right-of-way line of U.S. Highway 29
(aka Roosevelt Highway) (a variable width right-of-way) and the Land Lot line
common to Land Lots 69 and 92; thence running along said northern right-of-way
line of U.S. Highway 29, South 70(degree)12'21" West, 219 83 feet to a point and
the true POINT OF BEGINNING; Thence, South 70(degree)12'21" West, 93 64 feet to
a point; Thence, 84 84 feet along the arc of a curve to the left having a radius
of 1523,89 feet and being scribed by a chord bearing South 69(degree)43'58"
West, 84.83 feet to a point, Thence leaving the said northern right-of-way line
of U.S. Highway 29, North 20(degree)05'27" West, 64 70 feet to a point; Thence,
North 70(degree)01'02" East, 178.80 feet to a point; Thence, South
19(degree)47'39" East, 64.58 feet to a point on the northern right-of-way line
of U.S. Highway 29 and the true POINT OF BEGINNING.
Said tract contains 0.2636 acres (11,481 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties HI, LLC,
Fidelity National Title Insurance Company and CCI Southeast, LLC dated February
9, 2004
Access, Drainage and Utility Cross Easement
-------------------------------------------
Declaration Cross Country Properties in, LLC
--------------------------------------------
Exhibit "F"
-----------
Utility Easement
----------------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
To find the true point of beginning, commence at a concrete right-of-way
monument found at the intersection of the northern right-of-way line of U.S.
Highway 29 (aka Roosevelt Highway) (a variable width right-of-way) and the Land
Lot line common to Land Lots 69 and 92, thence running along said northern
right-of-way line of U.S. Highway 29, South 70(degree)12'21" West, 219.83 feet
to a point; thence, South 70(degree)12'21" West, 93,64 feet to a point; thence,
84.84 feet along the arc of a curve to the left having a radius of 1523.89 feet
and being scribed by a chord bearing South 69(degree)43'58" West, 84.83 feet to
a point; thence running, 110.97 feet along the arc of a curve to the left,
having a radius of 1523.89 feet and being scribed by a chord bearing South
66(degree)03'06" West, 110.95 feet to a point; thence leaving said northern
right-of-way line of US Highway 29 and running, North 20(degree)05'26" West, 219
57 feet to a point and the true POINT OF BEGINNING; Thence running, North
68(degree)28'52" East, 13070 feet to a point; Thence, South 20(degree)05'27"
East, 10.00 feet to a point; Thence, South 68(degree)28'52" West, 130.71 feet to
a point; Thence, North 20(degree)05'26" West, 10.00 feet to a point and the true
POINT OF BEGINNING.
Said tract contains 0.0300 acres (1,307 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties m, LLC,
Fidelity National Title Insurance Company and CCI Southeast, LLC dated February
9, 2004.
ADDITIONAL ACCESS EASEMENT
ADVANCE AUTO PARTS
Exhibit "G"
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx Xxxx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
To find the point of beginning, commence at a right-of-way monument located at
the intersection of the east line of Land Lot 89 and the northern right-of-way
line of U.S. 29 (aka Roosevelt Highway) (a variable width right-of-way); thence
running along said northern right-of-way line of U.S. 00, Xxxxx
00(xxxxxx)00'00" Xxxx, 219.83 feet to a point; thence leaving said northern
right-of-way line of U.S. 29 and running, North 19(degree)47'39" West, 64.58
feet to a point; thence, South 70(degree)01'02" West, 22.44 feet to a point and
the true POINT OF BEGINNING; Thence running, South 70(degree)01'02" West, 30.00
feet to a point; Thence, North 20(degree)05'27" West, 138.76 feet to a point;
Thence, North 69(degree)54'29" East, 53.16 feet to a point; Thence, South
19(degree)47'39" East, 40.00 feet to a point; Thence, South 69(degree)54'29"
West, 22.95 feet to a point; Thence, South 20(degree)05'27" East, 98.82 feet to
a point and the true POINT OF BEGINNING.
Said tract contains 0.1168 acres (5,086 square feet), more or less, as shown in
a survey prepared for Advance Auto Parts by Site Design Services, Inc. dated
February 9, 2004 and last revised March 18, 2004.
Exhibit "H"
Graphic of Top View of Tract 2 and 3
[GRAPHIC OMITTED]
Exhibit "H-2"
Perpetual Easement Agreement
THIS INSTRUMENT PREPARED BY AMD RETURN TO:
Xxxxxxx X. Xxxxxxx, Esquire Xxxxxxxx & Xxxxx, LLP-Monarch
Plaza, Suite 1600 0000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx 00000
PERPETUAL EASEMENT AGREEMENT
THIS PERPETUAL EASEMENT AGREEMENT ("Agreement") dated the ________ day of
_____________________ , 2004, between M. XXXXXX XXXX ("Grantor") and CROSS
COUNTRY PROPERTIES III, LLC ("Grantee"). WHEREAS, Grantor holds title to a
parcel of land ("Grantor's Parcel") legally described on Exhibit "A" attached
hereto and made a part hereof. Grantee is the owner of a parcel of land
("Grantee's Parcel") contiguous to the Grantor's Parcel and legally described on
Exhibit "B" attached hereto and made a part hereof; and
WHEREAS, Grantor desires to grant and Grantee desires to accept certain
easements across, under, and through Grantor's Parcel for the purposes of
access, utilities, and drainage for the benefit of Grantee's Parcel.
NOW, THEREFORE, for Ten and No/lOOths Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Grantee do hereby agree as follows:
1. Representations and Warranties. Grantor and Grantee hereby represent and
warrant each to the other that they are the fee simple owners of the Grantor
Parcel and the Grantee Parcel, respectively, and there are no mortgages, liens
or other such encumbrances held by others who have not joined in the execution
of this Agreement.
2. Grant of Access Easement.
(A) Grantor does hereby grant to Grantee, its successors and assigns, a
perpetual non-exclusive easement for the purposes of ingress and egress over,
across and through the Access Easement Area, including over and across the paved
road situated therein, as depicted on Exhibit "C" attached hereto and made a
part hereof ("Access Easement Area") to and from Grantee's Parcel for access to
and from State Route 14 also known as U.S. Highway 29. Said access shall include
access across and through the Access Easement Area for the benefit and
convenience of lessees, tenants, customers, invitees, licensees, agents and
employees of all occupants of the building(s) constructed or to be constructed
on the Grantee's Parcel or any portion thereof, and at all times in common with
Grantor, its respective successors and assigns, all tenants and licensees of the
Grantor's Parcel or any part thereof, and its invitees, employees, and agents.
The Access Basement Area may be varied from time to time by Grantor, with
2
the consent of Grantee, in its reasonable discretion, so long as the
requirements as to minimum width suitable for vehicular traffic shall be
complied with. (B) Notwithstanding any language contained herein to the
contrary, Grantor shall be responsible for the maintenance of the existing paved
road situated within the Access Easement Area, and shall keep the same in the
condition and repair as other first class roads for commercial and retail
developments in Xxxxxx County, Georgia. Grantor shall use its best efforts to
cause the Access Easement Area to be dedicated to the general public by the
governmental entity having jurisdiction over such roadway within Ninety (90)
days after execution of this Agreement. This access easement granted hereunder
shall terminate upon the formal dedication of the Access Easement Area as a
public roadway maintained by the governmental entity having jurisdiction over
such roadway.
3. Grant of Utility Easement.
(A) Grantor hereby grants to Grantee and Grantee's successors and assigns,
a perpetual nonexclusive easement under, and through that portion of Grantor's
Parcel as described in Exhibit "D" attached hereto and made a part hereof
3
("Utility Easement Area") for the purpose of installation, maintaining and
servicing utility lines and facilities and establishing water and sewer lines,
including without limitation, sewerage main stub outs from the public sewerage
lines located on State Highway 154 to the northwest boundary of Grantee's
Parcel, such sewerage mains to be of sufficient size and capacity as is
necessary to service the Grantee's development of the Grantee Parcel and shall
provide to Grantee's Parcel access to such sewerage lines, together with related
fire hydrants, if any, necessary for the servicing of Grantee's Parcel
(collectively, "Utility Facilities").
(B) To the extent such utilities have not been brought to the boundary of
Grantee's Parcel or have not be installed, Grantor, at Grantor's sole expense,
shall cause the same to be brought to the boundary of Grantee's Parcel and/or
installed within the Utility Easement Area in sufficient size and capacity to
service Grantee's Parcel. Grantor covenants and agrees to provide sub-meters and
re-registering meters for the water lines so that any charges allocable for
water and sewer services provided to Grantee's Parcel are paid by Grantee.
4
Grantor shall cause all Utility Facilities to be placed underground, except for
lift station, if any.
(C) Grantor shall maintain in good condition and repair all Utility
Facilities located from time to time on the Grantor's Parcel and shall keep such
lines in operative condition and shall pay all expenses in connection therewith.
(D) Although Grantor has all obligations of repair of the Utility
Facilities as described above, Grantee shall have the right to enter upon the
Utility Easement Area for inspection, maintenance and repair but shall be
responsible to restore the land to its original natural surface state only.
(E) Upon the installation of the Utility Facilities, the Grantor, its
successors and assigns, will retain the right to use the surface of the Utility
Easement Area, in all areas excepting at the locations of fire hydrants, if any,
and restricted use radius adjacent and appurtenant to each hydrant. Said
retained surface rights shall include, but not be limited to, landscaped areas
(no trees), parking, driveways, recreation areas and other uses and
improvements, except for the establishment of permanent buildings.
(F) This Utility Easement shall terminate only upon formal resolution of
surrender of the Utility Facilities to the
5
governmental entity having jurisdiction over such utilities for the servicing
and maintenance thereof by such entity.
4. Grant of Drainage Easement.
(A) Grantor hereby grants to Grantee a perpetual nonexclusive drainage and
detention easement for the purpose of off-site drainage from Grantee's Parcel
over, across, under and through the drainage and detention area as described on
Exhibit "E" attached hereto and made a part hereof, including without limitation
storm water drainage ("Drainage and Detention Easement Area"). The "Drainage
Facility" shall include all drainage and detention infrastructure to be located
within the Drainage and Detention Easement Area, including without limitation,
detention ponds and devices, and outfall pipes and devices, and the inflow pipes
and devices from the detention pond to be located within the Drainage and
Detention Basement Area to the detention facility to be located within such area
as is necessary to service Grantee's Parcel and the development thereof and the
commercial development of Grantor's Parcel in accordance with existing zoning,
platting and site plan approvals of Grantor's Parcel and Grantee's Parcel, and
in accordance with all governmental authority having jurisdiction of said
parcels.
6
(B) Grantor shall maintain in good condition and repair all Drainage
Facilities located from time to time on the Grantor's Parcel and shall keep such
facilities in operative condition and shall pay all expenses in connection
therewith.
(C) Although Grantor has all obligations of repair of the Drainage
Facilities as described above, Grantee shall have the right to enter upon the
Drainage and Detention Easement Area for inspection, maintenance and repair but
shall be responsible to restore the land to its original natural surface state
only.
5. Perpetual Easement. The easements granted herein shall be perpetual,
non-exclusive and irrevocable, except as otherwise provided herein.
6. Remedies Upon Default. Grantor shall keep and maintain all easements
granted hereunder and upon Grantor's Parcel in good condition and repair. If
Grantor shall default in the performance of maintenance obligations hereunder,
Grantee, in addition to all other remedies it may have at law or in equity,
after ten (10) days' prior written notice to Grantor, shall have the right to
perform such obligation on behalf of Grantor so long as said repair does not
exceed One Thousand Dollars ($1,000.00) per annum. In such event, Grantor shall
promptly reimburse the Grantee the cost thereof, together with interest thereon
7
from the date of outlay at a rate equal to eighteen percent (18%) per annum. Any
such claim for reimbursement, together with interest thereon as aforesaid, shall
be secured by a lien on Grantor's Parcel and all improvements thereon, which
lien shall be effective upon the Grantee's recording of notice thereof in the
public records of Xxxxxx County, Georgia; and Grantee may enforce said lien in
the same manner as a construction lien under Georgia law.
7. Non-Dedication. Except as otherwise provided herein, nothing contained
in this Agreement shall be deemed to be a gift or dedication of any portion of
the easement areas to the general public or for any public use or purpose
whatsoever, it being the intention of the parties hereto and their successors
and assigns that nothing in this Agreement, shall confer upon any person, other
than the parties hereto and their successors and assigns, any rights or remedies
under or by reason of this Agreement.
8. Notices. Any notice, report or demand required, permitted or desired to
be given under this Agreement shall be in writing and shall be deemed to have
been sufficiently given or served for all purposes if it is mailed by registered
or certified mail, return receipt requested, or guaranteed overnight delivery
8
service as the respective parties may from time to time designate by like
notice, on the third business day following the date of such mailing to the
following addresses, or such other address for which said party has given notice
thereof:
If to Grantor: M. Xxxxxx Xxxx, M.D.
000 Xxx Xxxxx, X.X.
Xxxxxxx, XX 00000
With a copy to: Xxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxx Xxx, X.X.
Xxxxxxx, XX 00000
If to Grantee: Xxx X. Xxxxx
Xxxxxx X. Xxxxx
Cross Country Properties, LLC 0000
Xxxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxx, LLP Monarch Plaza, Suite 1600
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
9. Miscellaneous:
(A) If any provision of this Agreement, or portion thereof, or the
application thereof to any person or circumstances, shall, to any extent, be
held invalid, inoperative or unenforceable, the remainder of this Agreement, or
the application of such provision or portion thereof to any
9
other persons or circumstances, shall not be affected thereby; it shall not be
deemed that any such invalid provision affects the consideration for this
Agreement and each provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
(B) This Agreement shall be construed in accordance with the laws of the
State of Georgia.
(C) Nothing in this Agreement shall be construed to make the parties hereto
partners or joint ventures or render either of said parties liable for the debts
or obligations of the other party.
(D) This Agreement shall be binding on and inure to the benefit of the
heirs, successors and assigns of the parties hereto. (E) No alterations,
changes, modifications or amendments shall be made to this Agreement except in
writing and signed by the parties hereto. (F) Any sketch included in any exhibit
attached hereto is for information purposes only and is not intended to depict
the legal description pertaining to the easement granted herein.
10
10. Attorneys' Fees. Should either party employ an attorney to enforce any
of the provisions hereof, or to protect its interest in any matter arising
hereunder, or to recover damages for the breach hereof, the prevailing party
shall be entitled to recover from the other reasonable attorneys' fees and
costs.
11. Benefit of Access Easement. It is expressly understood and agreed that
the terms, covenants and conditions of this Agreement shall be covenants running
with the land and shall constitute obligations on Grantor's Parcel, the burdened
property, with respect to the respective obligations hereunder, regardless of
title or ownership thereof, and the easements granted hereunder, together with
all other terms, covenants and agreements with regard thereto, shall be for the
use and benefit of the Grantor's Parcel and shall run in favor of their
successors, legal representatives and assigns without limitation.
12. Temporary Construction Easement for Improvements. Grantor hereby grants
and conveys to Grantee, a temporary nonexclusive construction easement in, to,
over, under, across and through Grantor's Parcel, as necessary for the purposes
of Grantee's grading, constructing and installing (a) any
11
infrastructure improvements within the Access Easement Area, the Utility
Easement Area or the Drainage and Detention Easement Area, and (b) any
improvements on Grantee's Parcel. Grantee shall perform any work within the
easement areas described herein in a good and workmanlike manner in accordance
with all applicable governmental laws, rules, ordinances and regulations. This
temporary grading and construction easement shall terminate upon the completion
of initial construction and installation of the infrastructure improvements and
the improvements on Grantee's Parcel. Grantor is familiar with the site
development plan for Grantee's Parcel acknowledges and agrees that Grantee's
Parcel is comprised of two tracts, known as Tract 2 and Tract 3, and that the
improvements to be constructed on Tract 3 may not commence until after the
completion of improvements on Tract 2. Nothing herein shall be deemed to be a
gift or dedication of the temporary easement areas granted to Grantee
hereinabove or of any portion of or interest in the Grantor Property, to the
general public or any governmental agency, or for any public use or purpose
whatsoever, it being the intention of Grantor that the easements granted in this
paragraph shall be and are granted strictly to only Grantee and Grantee's
successors, legal representatives and assigns without limitation.
12
13. Amendment of Instrument. Upon Grantor's completion of the improvements
comprising the Utility Easement as described hereinabove, or in the event the
easement areas comprising the Access Easement Area or the Drainage and Detention
Easement Area are extended or otherwise modified, Grantor and Grantee agree to
record an instrument modifying this Perpetual Easement Agreement to substitute
the as-built legal descriptions of the said Access Easement Area, Utility
Easement Area or Drainage and Detention Easement Area, as evidenced by an
as-built survey, prepared at Grantor's sole expense. Grantor shall pay for the
costs to prepare and record such amendment to this Agreement. All other terms
and conditions of this Agreement shall otherwise remain in full force and effect
after such amendment.
[signatures appear on following page]
13
IN WITNESS WHEREOF, the parties hereto have executed this Perpetual
Easement Agreement as of the day and year first above written.
Signed, sealed, and delivered GRANTOR:
this ______ day of _____
20____, in the presence of:
_________________________________ ___________________________________
Witness M. Xxxxxx Xxxx
Notary Public ___________________________________________
My Commission Expires: ___________________________________________
(NOTARIAL SEAL)
Signed, sealed, and delivered
this____day of___________
20___, in the presence of:
_________________________________ ___________________________________
Witness Xxx X. Xxxxx, President
Cross County Properties III, LLC
Notary Public ___________________________________________
My Commission Expires: ___________________________________________
(NOTARIAL SEAL)
14
JOINDER AND SUBORDINATION TO EASEMENT
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, ________________________________________ (hereinafter referred to
as the "Lender") is the owner and holder of that certain Deed to Secure Debt
executed by ____________________________________ ("Debtor") to and in favor of
Lender recorded in Official Records Book _____________________, Page __________
of the Public Records of ____________________ County, Georgia, and that certain
Assignment of Leases, Rents and Profits recorded in Official Records Book
___________________, Page ____________ of the Public Records of
__________________ County, Georgia (hereinafter together referred to as the
"Deed to Secure Debt"), which Deed to Secure Debt encumbers certain real
property located in _______________ County, Georgia, owned by Debtor and being
more particularly described in the Deed to Secure Debt (hereinafter referred to
as the "Real Property"); and
WHEREAS, Lender has executed the foregoing Perpetual Easement Agreement
(hereinafter referred to as the "Easement Agreement"); and
WHEREAS, the Easement Agreement encumbers the Real Property; and
WHEREAS, Debtor, as owner of the Real Property, has requested the Lender to
join in and subordinate its interest to the Easement Agreement.
NOW THEREFORE, for and in consideration of the premises hereof and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Mortgagees hereby state and declare as follows:
1. That Lender hereby joins in, consents to and approves of the Easement
Agreement.
2. That Lender hereby agrees that the Easement Agreement shall survive any
foreclosure of the Deed to Secure Debt.
15
3. That Lender hereby agrees to subordinate its interest in the Real
Property to the Easement Agreement.
[signatures appear on following page]
16
IN WITNESS WHEREOF, Lender has caused these presents to be executed in
manner and form sufficient to bind it as of this ______ day of
__________________, 20___.
Signed, sealed, and delivered LENDER:
this___day of____________,
20___, in the presence of: ______________
By:_
Witness Name:_
______________________________ Title:______
Notary Public
My Commission Expires:
(NOTARIAL SEAL)
#176542,3
Exhibit "A"
-----------
Grantor's Parcel
------------------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
BEGINNING at a concrete right-of-way monument found at the intersection of the
northern right-of-way line of U.S. Highway 29 (aka Roosevelt Highway) (a
variable width right-of-way) and the Land Lot line common to Land Lots 69 and
92; Thence running along said northern right-of-way line of U.S. Highway 29,
South 70(degree)12'21" West, 219.83 feet to a point; Thence leaving said
northern right-of-way line of U.S. Highway 29 and running, North
19(degree)47'39" West, 219.57 feet to a point; Thence, South 68C28'52" West,
290,36 feet to a point; Thence, North 20(degree)06'00" West, 199,20 feet to an
iron pin found (1/2 inch rebar); Thence, South 69(degree)53'23" West, 273.55
feet to a point on the eastern right-of-way line of Cascade-Palmetto Highway;
Thence running along said eastern right-of-way line of Cascade-Palmetto
Highway, 219.01 feet along the arc of a curve to the right having a radius of
2886,02 feet and being scribed by a chord bearing North 13(degree)34'07" West,
218.96 feet to a point; Thence leaving said eastern right-of-way line of
Cascade-Palmetto Highway and running, North 81(degree)17'00" East, 925.49 feet
to a point on the aforesaid Land Lot line common to Land Lots 69 and 92; Thence
running along said Land Lot line, South 01(degree)36'04" East, 186.36 feet to a
point; Thence leaving said Land Lot line and running, South 70(degree)12'21"
West, 250,21 feet to a point; Thence, 19.39 feet along the arc of a curve to
the right having a radius of 155.00 feet and being scribed by a chord bearing
South 23(degree)28'24" East, 19.38 feet to a point; Thence, South
19(degree)47'39" East, 216.07 feet to a point; Thence, North 70(degree)12'21"
East, 171.63 feet to a point on the aforesaid Land Lot line common to Land Lots
69 and 92; Thence running along said Land Lot line, South QF36'16" East, 37 80
feet to concrete right-of-way monument and the true POINT OF BEGINNING.
Said tract contains 5.5849 acres (243,277 square feet), more or less, as shown
in a survey prepared for The Xxxxx Group, LLC, Cross Country Properties HI, LLC;
Fidelity National Title Insurance Company and CCI Southeast, LLC by Site Design
Services, Inc dated February 6, 2004.
Exhibit "B"
-----------
Grantee's Parcel
----------------
Combined Tract 2 and Tract 3
----------------------------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0*
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
BEGINNING at a concrete right-of-way monument found at the intersection of the
northern right-of-way line of U.S. Highway 29 (aka Roosevelt Highway) (a
variable width right-of-way) and the Land Lot line common to Land Lots 69 and
92; Thence running along said northern right-of-way line of U.S. Highway 29,
South 70(degree)12'21" West, 313.47 feet to a point and the true POINT OF
BEGINNING; Thence, South 70(degree)12'21" West, 93.64 feet to a point; Thence,
195.81 feet along the arc of a curve to the left having a radius of 1523.89 feet
and being scribed by a chord bearing South 67(degree)38'48" West, 195.68 feet to
a point; Thence leaving the northern right-of-way line of US. Xxxxxxx 00, Xxxxx
20(degree)04'56" West, 219.57 feet to a point; Thence, North 68(degree)28'52"
East, 290,36 feet to a point; Thence, South 19(degree)47'39' East, 219.57 feet
to a point on the northern right-of-way line of U.S. highway 29 and the true
POINT OF BEGINNING.
TOGETHER WITH, all of Grantor's rights (non-exclusive) under that certain Joint
Use Driveway Agreement between Xxxxx Enterprises, Inc. and M. Xxxxxx Xxxx, dated
May 20, 1999, filed May 25, 1999 and recorded in Deed Book 26731, page 349,
aforesaid records.
Said tract contains 1 4414 acres (62,790 square feet), more or less, as shown in
a survey prepared for The Xxxxx Group, LLC, Cross Country Properties HI, LLC,
Fidelity National Title Insurance Company and CCI Southeast, LLC dated February
9, 2004
EXHIBIT "C"
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ACCESS EASEMENT
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ALL THAT TRACT or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being in the City of Palmetto; and being
more particularly described as follows:
Beginning at the intersection of the north right-of-way of X.X. Xxxxxxx #00
and the east line of Land ,Lot 69; then traveling along said right-of-way South
72 degrees 57 minutes 26 seconds West for a distance of 159.83 feet to a point;
then leaving said right-of-way
THENCE South 72 degrees 57 minutes 26 seconds West for a distance of 60.00
feet to a point; then leaving said right-of-way THENCE North 17 degrees 02
minutes 34 seconds West for a distance of 251.98 feet to a point; THENCE along a
curve to the left having a radius of 95.00 feet and an arc length of 11.88 feet,
being subtended by a chord of North 20 degrees 37 minutes 36 seconds West for a
distance of 11.88 feet to point; THENCE North 65 degrees 47 minutes 22 seconds
East for a distance of 60.00 feet to a point; THENCE along a curve to the left
having a radius of 155.00 feet and an arc length of 19.39 feet, being subtended
by a chord of South 20 degrees 37 minutes 36 seconds East for a distance of
19.38 feet to point; THENCE South 17 degrees 02 minutes 34 seconds East for a
distance of 251.98 feet to the Point of Beginning.
Together with and subject to covenants, easements, and restrictions of
record.
Said property contains 0.369 acres more or less.
Exhibit "P"
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Utility Easement
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All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxx of Palmetto, Xxxxxx County, Georgia, and being more particularly
described as follows:
To find the true point of beginning, commence at,a concrete right-of-way
monument found at the intersection of the northern right-of-way line of U.S.
Highway 29 (aka Roosevelt Highway) (a variable width right-of-way) and the Land
Lot line common to Land Lots 69 and 92; thence running along said northern
right-of-way line of U.S. Highway 29, South 70(degree)12'21" West, 219.83 feet
to a point; thence, South 70(degree)12'21" West, 93.64 feet to a point; thence,
84.84 feet along the arc of a curve to the left having a radius of 1523.89 feet
and being scribed by a chord bearing South 69(degree)43'58" West, 84.83 feet to
a point; thence running, 110.97 feet along the arc of a curve to the left,
having a radius of 1523.89 feet and being scribed by a chord bearing South
66(degree)03'06" West, 110.95 feet to a point; thence leaving said northern
right-of-way line of U.S. Highway 29 and running, North 20(degree)05'26" West,
219.57 feet to a point and the true POINT OF BEGINNING; Thence running, North
20(degree)05'26" West, 199.20 feet to a point; Thence, North 69(degree)53'23"
East, 10.00 feet to a point; Thence, South 20(degree)05'26" East, 198.95 feet
to a point; Thence, South 68C28'52" West, 10.00 feet to a point and the true
POINT OF BEGINNING
Said tract contains 0.0457 acres (1991 square feet), more or less, as shown in a
survey prepared for The Xxxxx Group, LLC, Cross Country Properties HI, LLC,
Fidelity National Title Insurance Company and CCI Southeast, LLC dated February
9, 2004
EXHIBIT "D-l"
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UTILITY EASEMENT
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(continued)
ALL THAT TRACT o'r parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being in the City of Palmetto; and being
more particularly described as follows:
Beginning at the intersection of the north right-of-way of X.X. Xxxxxxx #00
and the east line of Land -lot 69; then traveling along said right-of-way South
72 degrees 57 minutes 26 seconds West for a distance of 159.83 feet to a point;
then leaving said right-of-way
THENCE South 72 degrees 57 minutes 26 seconds West for a distance of 60.00
feet to a point; then leaving said right-of-way.
THENCE North 17 degrees 02 minutes 34 seconds West for a distance of 251.98
feet to a point;
THENCE along a curve to the left having a radius of 95.00 feet and an arc
length of 11.88 feet, being subtended by a chord of North 20 degrees 37 minutes
36 seconds West for a distance of 11.88 feet to point;
THENCE North 65 degrees 47 minutes 22 seconds East for a distance of 60.00
feet to a point;
THENCE along a curve to the left having a radius of 155.00 feet and an arc
length of 19.39 feet, being subtended by a chord of South 20 degrees 37 minutes
36 seconds East for a distance of 19.38 feet to point;
THENCE South 17 degrees 02 minutes 34 seconds East for a distance of 251.98
feet to the Point of Beginning.
Together with and subject to covenants, easements, and restrictions of
record.
Said property contains 0.369 acres more or less.
EXHIBIT "E"
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DRAINAGE EASEMENT
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ALL THAT TRACT or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx/ Xxxxxx Xxxxxx, Xxxxxxx/ and being in the City of Palmetto; and being
more particularly described as follows:
Beginning at the intersection of the north right-of-way of X.X. Xxxxxxx #00
and the east line of Land Lot 69; then traveling along said right-of-way
THENCE South 72 degrees 57 minutes 2 6 seconds West for a distance of
159.83 feet to a point; then leaving said right-of-way
THENCE North 17 degrees 02 minutes 34 seconds West for a distance of 35.91
feet to a point;
THENCE North 72 degrees 57 minutes 26 seconds East for a distance of 171.63
feet to a point on the east line of Land Lot 69; then traveling along said land
lot line
THENCE South 01 degrees 09 minutes 01 seconds West for a distance of 37.80
feet to the Point of Beginning.
Together with and subject to covenants, easements, and restrictions of
record.
Said property contains 0.137 acres more or less.
EXHIBIT "E-l"
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DRAINAGE EASEMENT
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(continued)
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ALL THAT TRACT or parcel of land lying and being in Land Xxx 00 xx xxx 0xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being in the City of Palmetto; and being
more particularly described as follows:
Beginning at the intersection of the north right-of-way of X.X. Xxxxxxx
#00 and the east line of Land Lot 69; then traveling along said right-of-way
South 72 degrees 57"'minutes 26 seconds West for a distance of 159.83 feet to a
point; then leaving said right-of-way
THENCE South 72 degrees 57 minutes 26 seconds West for a distance of 60.00
feet to a point; then leaving said right-of-way
THENCE North 17 degrees 02 minutes 34 seconds West for a distance of 251.98
feet to a point;
THENCE along a curve to the left having a radius of 95.00 feet and an arc
length of 11.88 feet, being subtended by a chord of North 20 degrees 37 minutes
36 seconds West for a distance of 11.88 feet to point;
THENCE North 65 degrees 47 minutes 22 seconds East for a distance of 60.00
feet to a point;
THENCE along a curve to the left having a radius of 155.00 feet and an arc
length of 19.39 feet, being subtended by a chord of South 20 degrees 37 minutes
36 seconds East for a distance of 19.38 feet to point;
THENCE South 17 degrees 02 minutes 34 seconds East for a distance of 251.98
feet to the Point of Beginning.
Together with and subject to covenants, easements, and restrictions of
record.
Said property contains 0.369 acres more or less.
EXHIBIT "1-1"
Exterior Signs
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III CHANNEL LETTERS
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II A SIZES AND CONSTRUCTION DETAIL
[[Graphic - Size and Construction Detail]]
[GRAPHIC OMITTED]
Exhibit "1-2"
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Pylon Sign(s)
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