IMANAGE:2113609 1
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
is made and entered into as of the 10th day of May, 2004, by and
between GRANT AVE. & STANDARD AVE. DEVELOPMENT, LLC, a New York
limited liability company ("Assignor"), and AEI REAL ESTATE FUND
XVIII LIMITED PARTNERSHIP, a Minnesota limited partnership whose
corporate general partner is AEI Fund Management XVIII, Inc., a
Minnesota corporation, and AEI NET LEASE INCOME & GROWTH FUND XIX
LIMITED PARTNERSHIP, a Minnesota limited partnership whose
corporate partner is AEI Fund Management XIX, Inc., a Minnesota
corporation ("Assignee").
RECITALS:
A. Assignor and Assignee are parties to that certain Purchase
and Sale Agreement dated December 22, 2003, (the "Agreement"),
pursuant to which Assignee is acquiring from Assignor the real
property, and improvements located on such property, more
particularly described on EXHIBIT A attached hereto and
incorporated herein by this reference (the "Premises").
B. Pursuant to the terms of the Agreement, Assignor desires to
sell, assign, convey, transfer and set over to Assignee and
Assignee desires to assume all of Assignor's interest in that
certain Lease dated September 17, 2003 (the "Lease") by and
between Assignor and Eckerd Corporation (the"Tenant"), including
all rents prepaid for any period subsequent to the date of this
Assignment, subject to the terms and conditions set forth below.
C. Assignor is the Landlord under the Lease with full right and
title to assign the Lease and the "Rent" (as defined below) to
Assignee as provided herein. The Lease is in full force and
effect and has not been modified or amended. So far as is known
to Assignor,there is no default by Tenant under the Lease and no
Rent has been waived, anticipated, discounted, compromised or
released.
NOW, THEREFORE, in consideration of the Recitals, which are
hereby made a part hereof, for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, Assignor and Assignee hereby agree
as follows:
1. Assignor hereby irrevocably and unconditionally sells,
assigns, conveys, transfers and sets over unto Assignee, its
heirs, successors and assigns as of the date hereof (the
"Effective Date"), all of Assignor's right, title and interest
in, to and under: (i) the Lease and (ii) any and all rents
prepaid as of the Effective Date, held by Assignor in connection
with the Lease (the "Rent").
2. Except as otherwise set forth in Paragraph 4 hereof,
Assignee hereby assumes and shall be liable for any and all
liabilities, claims, obligations, losses and expenses, including
reasonable attorneys' fees arising in connection with the Lease
which are actually incurred, and which arise by virtue of acts or
omissions occurring thereunder on or after the Effective Date.
Assignor shall indemnify and hold Assignee harmless from any and
all liabilities, claims, obligations, losses and expenses,
including reasonable attorneys' fees arising in connection with
the Lease which are actually incurred, and which arise by virtue
of acts or omissions occurring thereunder, prior to the Effective
Date. Except as otherwise set forth in Paragraph 4 hereof,
Assignee shall indemnify and hold Assignor harmless from any and
all liabilities, claims, obligations, loss and expenses,
including reasonable attorneys fees, arising in connection with
the Lease or as a result of Assignee's failure to fulfill the
landlord's duties and obligations accruing under the Lease on or
after the Effective Date. Assignee shall be entitled to receive
all income arising from the Lease from and after said Effective
Date. Assignor shall be entitled to receive all income accruing
from the Lease prior to the Effective Date.
3. Assignor shall direct the Tenant and any successor tenant
under the Lease to pay to Assignee the Rent and all other
monetary obligations due or to become due under the Lease for the
period beginning on the Effective Date.
4. Notwithstanding anything contained herein or implied hereby
to the contrary, Assignor shall remain liable for the performance
of the obligations of the "Landlord" under the Lease with respect
to (i) Landlord's obligations under Sections 9.7.5. and 9.7.11.
of the Lease, and (ii) performance of any warranty claims
received from Tenant with respect to the Premises pursuant to the
"One Year Warranty" set forth in Section 9.4 of the Lease.
5. This Assignment shall be governed by and construed in
accordance with the laws of the state in which the Property is
located.
6. All rights and obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit of
Assignor, Assignee and the heirs, successors and assigns of each
such party.
7. This Assignment may be executed in any number of
counterparts, each of which shall be effective only upon delivery
and thereafter shall be deemed an original, and all of which
shall be taken to be one and the same instrument, for the same
effect as if all parties hereto had signed the same signature
page. Any signature page of this Assignment may be detached from
any counterpart of this Assignment without impairing the legal
effect of any signatures thereon and may be attached to another
counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
8. Whenever the context so requires in this Assignment, all
words used in the singular shall be construed to have been used
in the plural (and vice versa), each gender shall be construed to
include any other genders, and the word "person" shall be
construed to include a natural person, a corporation, a firm, a
partnership, a joint venture, a trust, an estate or any other
entity.
[ the reminder of this page is intentionally blank ]
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment effective as of the day and year first above written.
ASSIGNOR:GRANT AVE. & STANDARD AVE. DEVELOPMENT, LLC,
a New York limited liability company
By: Westlake Holding, Inc.,
a New York corporation
Its: Sole member
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
ASSIGNEE: AEI REAL ESTATE FUND XVIII LIMITED
PARTNERSHIP, a Minnesota limited partnership
By: AEI Fund Management XVIII, Inc.,
a Minnesota corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
AEI NET LEASE INCOME & GROWTH
FUND XIX LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XIX, Inc.,
a Minnesota corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
STATE OF NEW YORK )
) ss.
CITY/COUNTY OF ONONDAGA)
The forgoing instrument was acknowledged before me this 7th
day of May, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇, as President of Westlake
Holding, Inc., a New York corporation, sole member of GRANT AVE.
& STANDARD AVE. DEVELOPMENT, LLC, a New York limited liability
company, on behalf of said corporation and limited liability
company.
WITNESS my hand and official seal.
My commission expires 2006
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The forgoing instrument was acknowledged before me this day
of May, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as President of AEI Fund
Management XVIII, Inc., a Minnesota corporation, General Partner
of AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP, a Minnesota
limited partnership, on behalf of said corporation and limited
partnership.
WITNESS my hand and official seal.
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The forgoing instrument was acknowledged before me this ____
day of May, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as President of AEI Fund
Management XIX, Inc., a Minnesota corporation, General Partner of
AEI NET LEASE INCOME & GROWTH FUND XIX LIMITED PARTNERSHIP, a
Minnesota limited partnership, on behalf of said corporation and
limited partnership.
WITNESS my hand and official seal.
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Notary Public
EXHIBIT A
TO
ASSIGNMENT AND ASSUMPTION OF LEASE
("Premises")
ALL THAT CERTAIN PIECE OR PARCEL OF LAND situate in the
City of Auburn, County of Cayuga, State of New York,
known and distinguished as part of Great Lot No. 38 of
the old Township of ▇▇▇▇▇▇▇▇ and being more
particularly bounded and described as follows:
New Lot No. 1 on the Resubdivision Plat New Lot
No. 1 prepared by C.T. Male Associates, P.C. dated June
27, 2003 and filed in the Cayuga County Clerk's Office
on August 13, 2003 at Map No. 03-175.
2113609v1
LEASE AGREEMENT
ECKERD CORPORATION
STORE NO 5881R
AUBURN, NEW YORK
LEASE AGREEMENT INDEX
ECKERD CORPORATION STORE NO.5881 R
Auburn, New York
SECTION
1. LEASED PREMISES 1
2. INITIAL TERM AND OPTION PERIODS 1
3. RENT 2
4. INTENTIONALLY DELETED 3
5. INGRESS AND EGRESS 3
6. EXCLUSIVE 3
7. LANDLORD'S REPRESENTATIONS AND WARRANTIES 3
8. LEASE SUBORDINATION AND NOTICES TO MORTGAGEES 4
9. CONSTRUCTION 4
10. EXTERIOR FACILITIES 8
11. SIGNS AND ANTENNAE 9
12. MECHANIC'S LIENS 9
13. COMPLIANCE WITH LAW AND REGULATIONS 10
14. ENVIRONMENTAL COMPLIANCE 10
15. MAINTENANCE AND REPAIRS 12
16. REAL ESTATE TAXES 12
17. UTILITIES 12
18. LIABILITY INSURANCE AND INDEMNIFICATION 13
19. CASUALTY (PROPERTY) INSURANCE AND DAMAGE TO LEASED PREMISES 13
20. WAIVER OF SUBROGATION 14
21. TENANT'S RIGHT TO MAKE CHANGES TO LEASED PREMISES 14
22. ASSIGNMENT AND SUBLETTING 15
23. EMINENT DOMAIN 15
24. TENANT'S DEFAULT 15
LEASE AGREEMENT INDEX
ECKERD CORPORATION STORE NO.5881 R
Auburn, New York
SECTION
25. RENT UNDER TENANT'S DEFAULT 16
26. LANDLORD'S DEFAULT 16
27. FORCE MAJEURE 17
28. SEVERABILITY 17
29. OBLIGATION OF SUCCESSORS 17
30. NOTICES 17
31. MISCELLANEOUS 18
32. SHORT FORM LEASE 19
33. CONDITION PRECEDENT 19
Eckerd Corporation Store No.: 5881 R
LEASE AGREEMENT
This Lease Agreement ("Lease") is made this 17th day of
September, 2003, by and between GRANT AVE. & STANDARD AVE.
DEVELOPMENT, LLC, a New York limited liability company
("Landlord") and ECKERD CORPORATION, a Delaware corporation
("Tenant"). In consideration of the mutual covenants and
agreements contained in this Lease, and for other good and
valuable consideration, the receipt of which is acknowledged,
Landlord and Tenant agree as follows:
I. LEASED PREMISES
1.1. Landlord leases to Tenant, and Tenant accepts from Landlord,
those certain premises consisting of land and a building (with
area inside walls of 13,813 square feet), as shown on the site
plan on the attached Exhibit "A", upon real property located at
the northwestern corner of Grant Avenue (a/k/a N.Y.S. Route 5)
and Standart Avenue, and situated in the City of Auburn, County
of Cayuga, State of New York, and as legally described in the
attached Exhibit "B" ("Leased Premises").
1.2. Tenant shall be permitted to use the Leased Premises for the
operation of a drug store and/or for any other lawful purpose or
purposes, including, but not limited to, an Express Photo and/or
photo processing center, a postal substation or package mailing
center, and an optical center for the practice of opticianry and
optometry. Tenant may also, after obtaining all required licenses
and permits, sell alcoholic beverages for off-premises
consumption. Landlord warrants that the Leased Premises are
properly zoned (or the relevant variances or site approvals have
or will be obtained by Landlord prior to the commencement of
construction) which allow each of the specific uses described
above and that there are no recorded restrictions which would
prohibit or restrict Tenant from using the Leased Premises for
any of those specific uses. Notwithstanding the above, Tenant
acknowledges and agrees that in no event will the Leased Premises
be used for the prohibited uses set forth on the attached Exhibit
"G". Tenant has the right to discontinue all or any part of its
business operations (including, but not limited to, its pharmacy
operations) at the Leased Premises at any time, at Tenant's sole
discretion and without Landlord's approval or consent.
1.3. Notwithstanding the above, if Tenant shall discontinue its
operations at the Leased Premises for a period of greater than
one hundred eighty (180) consecutive days (except as may result
from fire or other casualty or condemnation) Landlord may, at any
time following such 180-day period, give Tenant sixty (60) days
written notice of Landlord's intent to terminate the Lease, and
if Tenant does not recommence operations or sublet the Leased
Premises within such 60-day period, then this Lease shall
terminate at the end of such 60-day period, and the parties shall
be released from any and all further unaccrued liability with
respect to this Lease.
2. INITIAL TERM AND OPTION PERIODS
2.1 The initial term of this Lease shall commence concurrently
with the Rent Commencement Date ("Lease Commencement Date") and
shall end at midnight twenty (20) years later ("Lease Termination
Date").
2.2 Because of the admittedly seasonal aspect of Tenant's
business operations, it is agreed that Tenant shall not be
obligated to initially open for business between November 1 and
January 31. Rent shall not begin to accrue and the Lease
Commencement Date shall not begin until February 1 if possession
of the Leased Premises is made available to Tenant for initial
store opening at any time between November 1 and January 1,
unless Tenant opens for business earlier. These provisions shall
have no effect upon continued payment of Rent following Tenant's
initial store opening.
2.3 Landlord and Tenant agree, upon written request by either
party, to execute, acknowledge and deliver instruments to each
other in recordable form certifying the Lease Commencement Date
and Lease Termination Date.
2.4 Tenant, if not then in default beyond any applicable cure
period, has the option to renew this Lease for four (4)
successive five (5) year periods on the same terms and conditions
contained in this Lease, provided Tenant gives Landlord six (6)
written months notice of its election to exercise an option prior
to the end of the then-current term. Should Tenant neglect to
exercise an option on the applicable date, Tenant's right to
exercise its option shall not expire until fifteen (15) days
after written notice, by Landlord to Tenant, of Tenant's failure
to exercise its option. There shall be no further option to renew
following the end of the fourth (4th) option or Tenant's failure
to exercise any option in the manner set forth above.
2.5 Tenant will deliver up and surrender to Landlord possession
of the Leased Premises upon the expiration or termination of this
Lease in good condition and repair (loss by casualty and ordinary
wear and decay excepted and except for any conditions which,
under the provisions of this Lease, Landlord is required to
remedy).
3. RENT
3.1 Rent payable by Tenant pursuant to this Lease ("Rent") shall
commence thirty (30) days after the Leased Premises are completed
by Landlord in accordance with the provisions of this Lease and
possession of the Leased Premises has been delivered to Tenant,
or the date Tenant opens for business, whichever occurs earlier
("Rent Commencement Date"). If Landlord fails to have the Leased
Premises completed and ready for Tenant's occupancy by the
Completion Date (as defined in Section 9.3), then and in that
event, Tenant shall be entitled to a credit against the Rent
established in this Lease equal to one (1) day of Rent for each
day of Landlord's delay in delivering the completed Leased
Premises to Tenant.
3.2 Tenant shall pay Landlord Rent during the initial Lease term
in the amount of Three Hundred Sixty-nine Thousand Five Hundred
Six and 04/100 Dollars ($369,506.04) per year, payable in equal
monthly installments of Thirty Thousand Seven Hundred Ninety-two
and 17/100 Dollars ($30,792.17). Rent during each option period
shall be as follows:
For the first option period $376,413.00 per year; $31,367.75 per month
For the second option period $383,319.00 per year; $31,943.25 per month
For the third option period $390,225.96 per year; $32,518.83 per month
For the fourth option period $397, 131.96 per year; $33,094.33 per month
3.3. All monthly payments of Rent shall be paid in advance
on the first day of each and every calendar month during the
term of this Lease, at Landlord's address set forth in this
Lease without the need for prior demand and without any
offset or deduction, except as otherwise provided in this
Lease. If the term shall commence on a day other that the
first day of a month, then Rent shall be prorated for the
balance of that month on a per diem basis.
3.4. Landlord's federal tax identification number is: 51-
0467860
3.5. Tenant shall pay the sales or use tax, if any, assessed
against the Rent it pays under this Lease directly to the
State Taxing Authority.
3.6. If during the Lease term, Tenant fails to pay the full
amount of Rent when the same is due and payable, except for any
offsets or deductions allowed by this Lease, then Tenant shall
pay to Landlord a late charge of Fifty and No/100 Dollars
($50.00) to cover the extra expense involved in handling such
delinquency ("Late Charge").
4. INTENTIONALLV DELETED
5. INGRESS AND EGRESS
5.1. Landlord warrants that it will initially provide, and
that there shall remain in existence for the term of this
Lease and any extension of it, ingress and egress facilities
to public highways in the number and the locations depicted
on Exhibit "A", subject to takings pursuant to Section 23
below, unavoidable temporary closings or relocations
necessitated by public authority or other circumstances
beyond Landlord's control.
6. EXCLUSIVE
6.1. Landlord agrees that it will not directly or indirectly
lease, rent, sell or otherwise permit any property in which
it has any interest (direct or indirect) located within one
thousand (1,000) feet of any exterior boundary of the Leased
Premises, to be used as a drug store or a business which
sells or dispenses prescription drugs or for any collateral
use (such as, e.g., parking, drainage or service drives) in
support of a drug store or a business which sells or
dispenses prescription drugs without the written permission
of Tenant. If any mortgagee of the Leased Premises becomes
the Landlord under this Lease, the provisions of this
Section 6 shall not apply so long as said mortgagee shall
remain the Landlord.
7. LANDLORD'S REDRESENTATIONS AND WARRANTIES
7.1. Landlord warrants that it is, or before the Lease
Commencement Date, will be, the owner in fee of the Leased
Premises, that the Leased Premises will not be subject to
any liens or mortgages, except for those certain mortgages,
the holders of which have executed Tenant's standard
Subordination, Non- Disturbance and Attornment Agreement
("SNDA") in the form as shown on the attached Exhibit "F,"
and that Landlord has full right and title to execute and
perform this Lease.
7.2. So long as this Lease is in force and effect, Landlord
agrees that it will not permit the disturbance of, nor
interference with, Tenant's quiet enjoyment of the Leased
Premises in accordance with the terms of this Lease.
7.3. Promptly after execution of this Lease, Landlord shall
furnish Tenant with satisfactory evidence of Landlord's
title in the form of a copy of a deed or a copy of a signed
purchase agreement. If on the date Landlord acquires title
to the Leased Premises the Leased Premises or any part of
the Leased Premises is subject to any mortgage, deed of
trust or other encumbrance in the nature of a mortgage,
which is prior and superior to this Lease, Landlord will
deliver to Tenant in form and substance reasonably
satisfactory to Tenant, an agreement duly executed by such
mortgagee or trustee, obligating such mortgagee or trustee
or any successor to the mortgagee or trustee to be bound by
this Lease and by all of Tenant's rights under this Lease,
provided Tenant is not in default beyond any applicable cure
period under the terms of this Lease.
7.4. Landlord has or will obtain a title insurance policy
insuring the Leased Premises and any easements benefiting
the Leased Premises. Landlord represents and warrants that
with respect to any exceptions to the title to the Leased
Premises that (a) nothing contained in any of said
exceptions prohibits or restricts Landlord from performing
any or all of its obligations under this Lease during its
full term, (b) none of said exceptions adversely affects or
interferes with Tenant's enjoyment of the Leased Premises in
accordance with the terms of this Lease, and (c) there are
no easements under, above or through the building to be
constructed on the Leased Premises.
7.5.Landlord warrants and represents to Tenant that no
brokerage commissions have been charged to, or paid by,
Tenant in relation to this Lease to brokers in which
Landlord has an ownership interest or who are subsidiaries
or affiliates of Landlord.
8. LEASE SUBORDINATION AND NOTICES TO MORTAGEES
8.1. Tenant agrees to subordinate this Lease to the lien of
any first mortgage or blanket mortgage placed on the Leased
Premises and to attorn to any such mortgagee in accordance
with the terms of Tenant's standard SNDA in the form as
shown on the attached Exhibit "F," provided only that so
long as this Lease is in full force and effect (a) Tenant's
tenancy will not be disturbed, nor will this Lease be
affected by any default under such mortgage; (b) the rights
of Tenant under this Lease shall expressly survive and shall
not be cut off; and (c) this Lease shall, in all respects,
continue in full force and effect.
8.2. If Landlord is not then in default of any of the
provisions of this Lease beyond any applicable cure periods,
Tenant will, upon demand and without cost to Tenant, execute
and deliver to Landlord Tenant's SNDA in the form as shown
on the attached Exhibit "F ," necessary to effectuate such
subordination and non- disturbance. In the event, however,
any mortgagee of Landlord requires modification of such
SNDA, and such modifications do not change the current SNDA
in a material way, Tenant agrees that it will consider such
modifications, provided the final form of SNDA is
substantially in accordance with the terms of the attached
Exhibit "F".
8.3. Upon Landlord's written request, any notices required
or permitted to be given to Landlord under this Lease shall
also be given to any mortgagee whose name and address has
been provided by Landlord to Tenant in writing. Such
mortgagee shall have the right, but not the obligation, to
cure any default by Landlord within the same time period as
may be granted Landlord under any provision in this Lease.
9. CONSTRUCTION
9.1. Landlord will, at its own expense, prepare and deliver
to Tenant five (5) sets of detailed plans and specifications
for construction of the Leased Premises in accordance with
guide plans furnished by Tenant (Edition: Prototype 2000 or
Prototype 2001, both with an issue date of June 29, 2001,
both as amended by Bulletin #1 and Bulletin #2, both dated
November 8, 2001, by Bulletin #3 dated May 1, 2002, by
Bulletin #4 dated May 22, 2002, and by Bulletin #5 dated
July 15, 2002; or Edition: Prototype 2002 with an issue date
of May 17, 2002, as amended by Bulletin #1 dated July 15,
2002, and by Bulletin #2 dated August 7, 2002; or Edition:
Prototype 2000, 2001 & 2002, with an issue date of February
28, 2003, as amended by Bulletin #1 dated February 28, 2003;
as applicable) ("Guide Plans"). Landlord acknowledges
receipt of the Guide Plans from Tenant. Landlord's
construction plans and specifications shall be subject to
approval by Tenant, initialed by the parties and considered
a part of this Lease. Such approved plans are referred to in
this Lease as the "Plans." If Landlord elects to proceed
with construction prior to obtaining Tenant's approval of
the Plans, any changes required by Tenant shall be at
Landlord's sole cost and expense.
9.2. Notwithstanding any information set forth in the Guide
Plans nor Tenant's approval of Landlord's Plans as described
above, it is Landlord's sole obligation and responsibility
under this Lease to ensure that the design and construction
of the Leased Premises complies in all respects with
applicable law, including, but not limited to, the Americans
with Disabilities Act ("ADA") (and all regulations
promulgated under the ADA), together with any other federal,
state or local statutes, codes or regulations relating to
the accessibility of the Leased Premises to physically
disabled persons, at the time the Leased Premises are
delivered to Tenant for possession. Landlord agrees to
defend, hold harmless, and indemnify Tenant for any and all
losses incurred by Tenant in the event Landlord breaches
this obligation.
9.3. Immediately upon execution of this Lease, Landlord shall
proceed with due diligence to obtain all requisite permitting for
development of the Leased Premises. Landlord shall commence
construction no later than December 15, 2003, and shall complete
the Leased Premises in accordance with the Plans no later than
one hundred eighty (180) days from the date of the commencement
of construction ("Completion Date"). Landlord shall provide
Tenant at least thirty (30) days prior written notice of
commencement of construction. At least sixty (60) days prior to
the Completion Date, written notice shall be given by Landlord to
Tenant that the Leased Premises will be completed and ready for
Tenant's occupancy. Landlord shall obtain from the authority
having jurisdiction the street address to be assigned to the
Leased Premises and provide Tenant with such information in
writing no later than thirty (30) days after commencement of
construction. If construction is delayed for a period of six (6)
months or longer and Tenant does not terminate this Lease, the
Plans shall be resubmitted by Landlord for approval by Tenant
prior to construction or recommencement of construction.
9.4. The Leased Premises shall be deemed to have been fully
completed and ready and available for occupancy by Tenant
when all of the following have been accomplished: (a) a
certificate of occupancy or an equivalent use permit is
issued by and obtained from the governmental authority
having jurisdiction (subject to any delay caused in the
issuance of a certificate of occupancy as a result of any
fixturing or other work performed or to be performed by
Tenant); (b) the architect who prepared the Plans has
certified in writing to Tenant that the Leased Premises have
been completed in accordance with the Plans approved by
Landlord and Tenant as set forth in this Lease; (c) Landlord
has tendered possession of the Leased Premises to Tenant
with the store absolutely cleaned, including the cleaning
and waxing of floors; (d) all mechanical systems servicing
the Leased Premises have been completed and are in good
working condition; (e) the Leased Premises are free and
clear of all liens as provided in this Lease; and (f)
Landlord has delivered to Tenant satisfactory evidence of
Landlord's title to the Leased Premises and non-disturbance
agreements, if applicable, in accordance with this Lease.
Tenant acknowledges that Landlord's construction is
occurring at a time of the year which may preclude Landlord
from completing all landscaping and from placing the final
coat of asphalt on the parking lot at the Leased Premises.
Accordingly, the Leased Premises shall nevertheless be
deemed to be completed and ready and available for occupancy
pursuant to the terms of the Lease (and the term of this
Lease and Tenant's obligation to pay Rent shall commence)
notwithstanding the fact that the final coat of asphalt and
some of the landscaping at the Leased Premises have yet to
be completed, and Landlord hereby agrees to complete any
such incomplete items as soon as is practicable in the
Spring of 2004 after asphalt plants open and weather
permits. Landlord agrees to provide Tenant with two (2)
copies of an as-built survey of the Leased Premises within
thirty (30) days after the Lease Commencement Date ("As-
Built Survey"). The As-Built Survey shall include, without
limitation, a metes and bounds legal description, all
easements, utilities, and public and private right-of-ways.
In the event Landlord fails to provide Tenant with the
copies of the As-Built Survey as provided above, Tenant may
have an As-Built Survey prepared and offset the cost of such
survey and the two (2) copies of the As-Built Survey against
Rent due or becoming due under this Lease. Landlord warrants
that the Leased Premises shall be free from defects in
materials or workmanship for a period of one (1) year
following the Lease Commencement Date ("One-Year Warranty").
Landlord further agrees to correct, at Landlord's sole cost
and expense, any such defects. Upon completion of the Leased
Premises as provided in this Lease, Landlord will not paint,
decorate or change the architectural treatment of any part
of the exterior of the Leased Premises, nor make any
structural alterations, additions or changes to the Leased
Premises without Tenant's prior written approval.
9.5. If Landlord shall fail to commence construction or
deliver the Leased Premises to Tenant in the manner provided
and within the time limits set forth in this Lease, then
Tenant may, at its option, terminate this Lease by giving
Landlord thirty (30) days written notice; provided, however,
that Tenant's termination shall be nullified if Landlord
commences construction or delivers the Leased Premises, as
the case may be, in the manner required by the Lease within
such thirty (30) day period. Acceptance by Tenant of
delivery of the Leased Premises prior to the Completion Date
shall be at the option of Tenant, such acceptance not to be
unreasonably withheld.
9.6. At Tenant's sole risk, Landlord will afford Tenant
reasonable access to the Leased Premises prior to the Lease
Commencement Date for the purpose of inspecting, measuring,
installing or arranging for the installation of fixtures,
but only to the extent that such activity proceeds without
interfering with Landlord's contractors, subcontractors, and
their respective employees. By giving Tenant access to the
Leased Premises prior to the Lease Commencement Date,
Landlord assumes no responsibility whatsoever for injury to
Tenant's employees or contractors entering the Leased
Premises, or damage to property Tenant's employees or
contractors may have brought in, or upon, the Leased
Premises, nor shall Landlord be entitled to any Rent by
reason of such access. Tenant agrees to indemnify and hold
Landlord harmless from and against any and all claims and
demands arising out of such access, unless such claims or
demands are due to the negligence of Landlord, its agents,
employees or contractors.
9.7. The procedure for adjusting Rent based upon
construction costs pursuant to this Lease shall be as
follows:
9.7.1. The Rent set forth in this Lease was calculated
based upon estimated total project costs of Three Million
Five Hundred Nineteen Thousand One Hundred Five and
No1100 Dollars ($3,519, 105.00) ("Estimated Total Project
Costs"). The Estimated Total Project Costs are set forth
in the Preliminary Site Budget document attached to this
Lease as Exhibit "D" ("Preliminary Site Budget").
Specifically, the annual Rent for the initial Lease term
is equal to the product of the Estimated Total Project
Costs multiplied by ten and one half percent (10.5%).
Included in the Estimated Total Project Costs are
estimated hard costs for construction of the building
that is a part of the Leased Premises. The phrase "hard
costs for construction of the building" ("Building Hard
Costs") shall mean:
9.7.1.1. Building Hard Costs shall include all real
property building costs, including but not limited to
the concrete slab under the building, building
retaining walls, the sidewalks under the front canopy,
building masonry, building structural steel, metal roof
decks, roof insulation, building rough and finish
carpentry, building insulation, the exterior insulation
and finish system ("EIFS") or stucco finish system,
metal roof panels, the roof membrane, sheet metal and
flashing, sealants, roof hatches, steel doors and
frames, automatic doors, roll down doors, storefront
system, door hardware, gypsum board systems, ceramic
tile, suspended acoustical ceilings, resilient
flooring, interior paint, exterior paint, wall
coverings, miscellaneous interior finishes, fire
extinguishers, restroom hardware, toilet partitions,
drive- thru window and pneumatic systems, the heating,
ventilating and air-conditioning system ("HVAC"), all
interior plumbing (including hookup to site plumbing),
fire sprinkler systems, building electrical system
(including switch gear and hookup to site electrical
feeds), light fixtures, general conditions associated
to the building, and profit associated with the cost of
the Building Hard Costs.
9.7.1.2. Building Hard Costs shall not include land
improvement costs, such as fences, dumpster enclosures,
demolition of existing structures, paving, offsite
striping, curb and gutters, storm water systems, site
electrical (including signage), transformer, power
company service, site sanitary sewer, lift station,
site gas piping, site lighting, offsite utilities,
water meter, back-flow preventors, water detention
structures, water retention systems, clearing and
grading, structural fill, topsoil and unsuitable soil
removal, landscaping, irrigation, site sidewalks,
concrete paving, bollards, retaining walls, applicable
federal or state department of transportation ("DOT")
work, off site improvements, site equipment, general
conditions associated with the site, or profit
associated with the cost of the sitework costs.
▇.▇.▇.▇▇ set forth on the Preliminary Site Budget, the parties
estimate Building Hard Costs in the amount of One Million
One Hundred Sixty Thousand Two Hundred Ninety-two and No1100
Dollars ($1, 160,292.00) ("Estimated Building Hard Costs").
The parties agree that Rent shall be adjusted as described
below based upon the Actual Building Hard Costs (as defined
below).
9.7.3.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
THIS LEASE, ANY INCREASE IN RENT SHALL BE EXPRESSLY
CONDITIONED UPON SATISFACTION OF THE FOUR (4) CONDITIONS SET
FORTH BELOW. LANDLORD AGREES AND ACKNOWLEDGES THAT IN THE
EVENT THESE FOUR (4) CONDITIONS ARE NOT SATISFIED, LANDLORD
SHALL NOT BE ENTITLED TO AN INCREASE IN RENT PURSUANT TO
THIS LEASE:
9.7.3.1. CONDITION ONE: The general contractor, project
architect and civil engineer retained by Landlord to perform
Landlord's construction obligations shall be approved in
writing in advance by Tenant, at Tenant's sole discretion;
and
9.7.3.2. CONDITION TWO: At least thirty (30) days prior to the
commencement of construction by Landlord, Landlord shall notify
Tenant's regional project construction manager and regional real
estate director of all construction costs as bid to the Landlord,
and furnish Tenant's regional project construction manager and
regional real estate director with complete copies of at least
three (3) bids (or such lesser number of bids as Tenant may deem
acceptable at Tenant's sole discretion) submitted to Landlord in
connection with all costs of construction. All such bids shall be
submitted by Landlord to Tenant in electronic format (such as,
e.g., e-mail or other method approved by Tenant) on Tenant's bid
form, a copy of which bid form is attached as Exhibit "E"; and
9.7.3.3. CONDITION THREE: Tenant's regional project
construction manager and regional real estate director
or their designees shall have the right to verify such
construction costs and negotiate directly with the
contractors to reduce the construction costs and/or
change the scope of construction so as to arrive at
construction costs acceptable to Tenant's regional
project construction manager and regional real estate
director; and
9.7.3.4. CONDITION FOUR: Tenant's regional project
construction manager shall have approved in writing the
costs of construction acceptable to Tenant's regional
project construction manager and regional real estate
director and furnished Landlord with a copy of such
written approval of the construction costs, together
with written notice to commence construction.
9.7.4.Immediately following (but not prior to) the receipt by
Landlord of Tenant's written approval of the construction
costs and written notice to commence construction, Landlord
may commence construction. Any increase in the Building Hard
Costs incurred after the commencement of construction (e.g.,
unknown conditions, errors in architectural plans, or
government- required conditions) shall not result in an
increase in Rent unless the increased costs are incurred as
a result of a written change order or orders by Tenant. Any
written change order or orders by Tenant after Tenant's
written approval of the Building Hard Costs will not give
Tenant the right to terminate this Lease. However, any
written change order or orders by Tenant after Tenant's
written approval of the Building Hard Costs which results in
a decrease in the Actual Building Hard Costs (as defined
below) will entitle Tenant to a decrease in Rent that is
otherwise available pursuant to the formula set forth below.
The parties also agree that the "Contingency" fund set forth
in the Preliminary Site Budget shall not be applied to
Building Hard Costs.
9.7.5.Within sixty (60) days after the Leased Premises are
fully completed and available for occupancy by Tenant as
described in this Lease, Landlord shall deliver to Tenant's
regional project construction manager a binder containing
true, accurate, complete and verified copies of all
documents related to the Building Hard Costs, including,
without limitation, all construction bids, contracts, change
orders, invoices, lien waivers (if available), notices, and
permits, together with a reconciliation of the Building Hard
Costs in the same format as the Preliminary Site Budget
("Documentation Binder"). In addition, as part of the
Documentation Binder, Landlord shall provide the certificate
of occupancy, an as-built survey, and the roof warranty as
specifically described in this Lease. The purpose of the
Documentation Binder is to determine and verify the final
actual Building Hard Costs ("Actual Building Hard Costs") in
order to adjust the Rent. In the event Landlord fails to
deliver the Documentation Binder to Tenant within this 60-
day period, Landlord shall be in default of the Lease. In
the event the default is not cured as described below, the
failure of Landlord to provide the Documentation Binder
within this 60-day period shall result in the termination of
any right to increase the Rent pursuant to this Section of
the Lease, and Tenant shall be entitled to reduce the Rent
in accordance with the construction bids, as they may be
modified. Notwithstanding the foregoing, in the event
Landlord fails to deliver the Documentation Binder to Tenant
within this 60- day period, Landlord shall have an
additional thirty (30) days to cure such default upon a
written notice of default from Tenant.
9.7.6. Tenant shall have the right, within sixty (60) days
after delivery by Landlord to Tenant of the Documentation
Binder, to review the costs set forth in the Documentation
Binder and to submit Tenant's written response to such costs
to Landlord. In the event Tenant fails to perform the review
and so respond within this 60-day period, Landlord may, by
written notice to Tenant, terminate Tenant's right to review
such construction costs contained in the Documentation
Binder, and such costs as submitted by Landlord shall be
deemed final for the purposes of amending the Lease as
described below, unless Tenant performs the review and
submits its written response to Landlord within thirty (30)
days after Tenant's receipt of the written notice from
Landlord.
9.7.7. Landlord and Tenant agree to act in good faith to
promptly resolve any concerns or disputes which arise as a
result of Tenant's review and written response as described
above and to reach an agreement as to the Actual Building
Hard Costs.
9.7.8. After the parties have reached an agreement as to the
Actual Building Hard Costs, the parties shall recalculate
the Rent based upon the Actual Building Hard Costs.
Specifically, the annual Rent for the initial term and all
option periods of the Lease shall be increased or decreased,
as the case may be, by the difference between the Actual
Building Hard Costs and the Estimated Building Hard Costs
multiplied by ten and one half percent (10.5%). The parties
shall thereafter promptly enter into a Lease amendment (to
be effective as of the Rent Commencement Date) setting forth
the revised annual and monthly Rent throughout the term of
this Lease.
9.7.9. Notwithstanding the foregoing language, in no event
shall Landlord be entitled to a Rent increase for the amount
of the Actual Building Hard Costs in excess of One Million
Two Hundred Eighteen Thousand Three Hundred Six and 60/100
Dollars ($1,218,306.60) (i.e., five percent (5%) increase
over Estimated Building Hard Costs), unless such excess
costs are the result of a written change order or orders by
Tenant. Rather, Landlord shall be responsible for all Actual
Building Hard Costs which exceed the Estimated Building Hard
Costs by more than five percent (5%), unless such excess
costs are the result of a written change order or orders by
Tenant. Furthermore (and again, notwithstanding the
foregoing language), In no event shall Tenant be entitled to
a Rent decrease for the amount of Actual Building Hard Costs
which are below One Million Forty-four Thousand Two Hundred
Sixty-two and 80/100 Dollars ($1,044,262.80) (i.e., a ten
percent [10%] decrease below Estimated Building Hard Costs)
unless such reduced costs are the result of a written change
order or orders by Tenant.
9.7.10. Within thirty (30) days after execution of the Lease
amendment described above, Tenant shall pay to Landlord, or
Landlord shall pay to Tenant, as the case may be, the
difference between the Rent paid pursuant to the Lease prior
to the Lease amendment and the revised Rent set forth in the
Lease amendment for the same period of time.
9.7.11. Within one hundred eighty (180) days after the Leased
Premises are fully completed and available for occupancy by
Tenant as described in this Lease, Landlord shall deliver to
Tenant a second binder containing true, accurate, complete
and verified copies of all documents related to all soft
costs and other costs relating to the construction of the
Leased Premises as set forth on the Preliminary Site Budget,
other than the Building Hard Costs ("Remaining Construction
Costs"). The documents in this binder shall include, without
limitation, all bids, statements, contracts, change orders,
invoices, lien waivers, notices, and permits, together with
a reconciliation of the Remaining Construction Costs in the
same format as the Preliminary Site Budget. The Remaining
Construction Costs shall be submitted to Tenant for
information purposes, only.
10. EXTERIOR FACILITIES
10.1. Prior to the Lease Commencement Date, Landlord shall
construct the sidewalks, service drives, parking aisles,
driveways, streets and parking area and provide adequate
water drainage ("Exterior Facilities") as shown on Exhibit
"A". The area provided for the parking of automobiles shall
be sufficient to accommodate not less than fifty-six (56)
full-sized automobiles with spaces striped on nine foot (9')
centers for each car, plus four (4) handicapped spaces,
subject to the terms of this Lease. All sidewalks shall be
concrete and all service drives, parking aisles, driveways,
streets and parking areas shall be graded, leveled and paved
with concrete or asphalt, clearly marked with painted lines,
and repainted as required prior to the Lease Commencement
Date. Landlord agrees there shall be unobstructed use of
sidewalks, driveways and roadways for automotive and
pedestrian traffic to and from the Leased Premises and
adjacent public streets and highways subject to the terms of
this Lease. All of the Exterior Facilities, and any signs
owned or permitted by Landlord, shall be constructed in a
good and workmanlike manner by Landlord and shall be
maintained by Tenant, in good condition throughout the term,
at Tenant's sole cost and expense.
10.2. Landlord shall provide concrete or paved driveways at
the rear of the Leased Premises as shown on Exhibit "A" in
order to provide convenient public access to the delivery or
service entrances.
11. SIGNS AND ANTENNAE
11.1. Landlord agrees that Tenant shall have the right at its
own cost and expense to erect and maintain as many signs on
the Leased Premises as are allowed by applicable laws
advertising its business and the services it provides. Any
signs erected by Tenant shall conform to the requirements of
local ordinances and shall be signs generally used by Tenant
to advertise its business from time to time, including, but
not limited to, its standard capsule sign.
11.2. Tenant shall be permitted, as soon as possible after
Landlord's purchase of the Leased Premises, to install sign
foundations with conduits as shown in the Plans and at the
locations shown on Exhibit "A" upon which Tenant may install
its readerboards and sign panels. Landlord shall extend
electrical service to all pylon signs as soon as practical
thereafter.
11.3. Landlord shall not, without Tenant's written consent,
utilize or permit others to utilize the exterior of the
Leased Premises, or the space above it, for sign display
purposes.
11.4. Tenant may install at its own expense and cost satellite
receiving/transmitting equipment or antennae on the roof of
the Leased Premises provided such installation does not
penetrate the roof or otherwise adversely affect the
integrity of the roof structure and is permitted by all
applicable laws. Tenant agrees to indemnify and hold
Landlord harmless from and against any and all claims and
demands arising from the installation, removal or repair of
such equipment, unless such claims or demands are due to the
negligence of Landlord, its agents, employees or
contractors.
11.5. If any variances from governmental sign codes or zoning
ordinances are required in order for Tenant to install its
signs as depicted on the Plans or at the locations shown on
Exhibit "A," Landlord shall cooperate with Tenant in order
for Tenant to obtain such variances.
12. MECHANIC'S LIENS
12.1. When completed, Landlord will ensure that the Leased
Premises are free and clear of all claims of lien by
mechanics and materialmen for and on account of labor and
materials furnished in and about the construction by
Landlord. Thereafter, if any mechanic's or other liens, or
order for the payment of money arising through the fault of
either party, shall be filed against the Leased Premises or
additions, alterations or extensions of the Leased Premises,
such party shall cause the liens to be terminated and
discharged of record, by bond or otherwise, and shall also
defend and pay damages and attorney's fees, if any, on
behalf of the other, for any action, suit or proceeding
which may be brought for the enforcement of such lien, liens
or orders. Upon failure of the defaulting party to comply
with the provisions of this Section, the other party may,
after thirty (30) days written notice, and such defaulting
party's continued failure to comply with the provisions of
this Section, do so on the defaulting party's behalf, and
all reasonable sums expended by the other party shall on
demand be paid to it by the party in default. In the event
Landlord is the defaulting party, Tenant may offset against
Rent due or to become due all such sums expended by Tenant
as a result of Landlord's failure to comply with this
Section.
13. COMPLIANCE WITH LAW AND REGULATIONS
13.1. Except to the extent any order, rule, regulation or
requirement of any governmental body relates to any
condition which existed prior to the Lease Commencement
Date, Tenant agrees to comply with all orders, rules,
regulations and requirements of any governmental body
relating to the manner of Tenant's use and occupancy of the
Leased Premises, or alterations made by the Tenant, and
Tenant will pay all costs and expenses incidental to such
compliance and will indemnify and save harmless Landlord
from any such costs and expenses. In the event compliance
with any governmental orders, rules, regulations or
requirements is not the responsibility of Tenant as provided
in this Section, Landlord shall comply with such orders,
rules, regulations and requirements at its sole cost and
expense and will indemnify and save Tenant harmless from
such costs and expenses.
14. ENVIRONMENTAL COMDLIANCE
14.1. For the purposes of this Lease, the term "Environmental
Law" shall mean any federal, state, or local law, statute,
ordinance or regulation pertaining to health, industrial
hygiene, or the environmental conditions on, under or about
the Leased Premises, including without limitation the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time
("CERCLA"), 42 U.S.C. Sections 9601, et seq., and the
Resource Conservation and Recovery Act of 1976, as amended
from time to time ("RCRA"), 42 U.S.C. Sections 6901, et seq.
14.2. For the purposes of this Lease, the term "Hazardous
Substance" shall mean, without limitation: (a) those
substances included within the definition of "hazardous
substances", "hazardous materials", "toxic substances", or
"solid waste" in CERCLA, RCRA, and the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801, et seq., and in
the regulations promulgated pursuant to said laws; (b) those
substances defined as "hazardous wastes" in any applicable
state statute and in the regulations promulgated pursuant to
any such statute; (c) those substances listed in the United
States Department of Transportation Table (49 CFR 172.101,
as amended) or by the United States Environmental Protection
Agency (or any successor agency) as hazardous substances;
(d) such other substances, materials and wastes which are or
become regulated under applicable local, state, or federal
law, or which are classified as hazardous or toxic under
federal, state or local laws or regulations; and (e) any
material, waste or substance which is (i) petroleum (ii)
asbestos (iii) polychlorinated biphenyls (iv) designated as
a "hazardous substance" pursuant to Section 311 of the Clean
Air Act, 33 U.S.C. Section 1251, et seq., or listed pursuant
to Section 307 of the Clean Air Act, (v) flammable
explosive, or (vi) radioactive materials.
14.3. Tenant shall not use, generate, manufacture, produce,
store, release, discharge or dispose of, on, under or about
the Leased Premises, or transport to or from the Leased
Premises, any Hazardous Substance, or allow any other person
or entity to do so. Tenant shall keep and maintain the
Leased Premises in compliance with, and shall not cause or
permit the Leased Premises to be in violation of any
Environmental Law. Notwithstanding the foregoing, Tenant may
use and store in reasonable amounts and in accordance with
applicable laws such cleaning products, automotive products
and other products as are normally used, sold or stored in
Tenant's drug stores from time to time, including, without
limitation, chemicals and materials used in connection with
photoprocessing.
14.4. Landlord and Tenant shall each give the other party
prompt notice of any of the following of which the party in
question has actual knowledge: (a) any proceeding or inquiry
by any governmental authority with respect to the presence
of any Hazardous Substance on the Leased Premises or the
migration of such Hazardous Substance from or to other
property; (b) all claims made or threatened by any third
party against Tenant, Landlord or the Leased Premises
relating to any loss or injury resulting from any Hazardous
Substance; and (c) discovery of any occurrence or condition
on any real property adjoining or in the vicinity of the
Leased Premises that could cause the Leased Premises or any
part of the Leased Premises to be subject to any
restrictions on the ownership, occupancy, transferability or
use of the Leased Premises under any Environmental Law or
any regulation adopted in accordance with any Environmental
Law.
14.5. Tenant shall protect, defend, indemnify and hold
harmless Landlord, its members, directors, officers,
partners, employees, agents, successors and assigns from and
against any and all loss, penalties, fines, judgments,
forfeitures, damage, cost, expense or liability (including
attorney's fees and costs) arising from or caused in whole
or in part, directly or indirectly, by Tenant's failure to
comply with the terms of this Section.
14.6. Landlord represents and warrants to Tenant that, to
Landlord's actual knowledge and the actual knowledge of
▇▇▇▇▇▇ ▇. ▇▇▇▇, as President of the sole member of Landlord,
other than any Hazardous Substance disclosed in that certain
environmental report(s) titled "Phase I Environmental Site
Assessment" prepared by ▇▇▇▇▇▇▇ Engineering ("PE"), dated
August, 2003 (PE Project No.2003046), and that certain
"Phase II Environmental Site Assessment" prepared by PE,
dated August, 2003 (PE Project No.2003046) (the presence of
any Hazardous Substance described in said report(s) is
referred to as the "Condition"): (a) no Hazardous Substance
is present, or was installed, exposed, released or
discharged in or under the Leased Premises at any time
during or prior to Landlord's ownership; (b) no prior owner
or occupant of the Leased Premises has used any Hazardous
Substance on the Leased Premises; and (c) the Leased
Premises have been used and operated upon compliance with
all applicable local, state and federal laws, ordinances,
rules regulations and orders.
14.7. Landlord shall protect, indemnify, defend and hold
harmless Tenant, its officers, employees, agents,
successors, and assigns from and against any and all loss,
penalties, fines, judgments, forfeitures, damage, cost,
expense or liability (including attorney's fees and costs)
arising from or caused in whole or in part, directly or
indirectly (a) from the Condition; (b) from any remediation
of the Condition performed by Landlord or a third party or
any of its or their officers, employees, agents, successors
and assigns, and (c) from Landlord's breach of its
representations contained in this Subsection. This
indemnification shall survive the expiration or earlier
termination of this Lease.
14.8. Tenant acknowledges the Condition, if any. Tenant shall
not have the right to terminate this Lease due to either the
existence of the Condition or any effect the existence of
the Condition has on Tenant's use and occupancy of the
Leased Premises, and the effect of any reasonable
remediation of the Condition. Tenant shall have no right to
compel Landlord to remediate the Condition; provided,
however, that Landlord shall comply with any governmental
requirement to remediate the Condition. Notwithstanding
anything in this Lease to the contrary, Landlord, at its own
cost and expense, shall diligently pursue and complete the
soil and groundwater remediation recommended in the Phase II
(and other recommendations included in the Phase II).
Landlord shall obtain a No Further Action letter (or its
equivalent) from the applicable governmental entity and
promptly provide said letter to Tenant upon completion of
the soil and groundwater remediation.
14.9. In the event that Landlord sells the Leased Premises to
a bona fide third-party purchaser which is not an affiliate
or controlled or under common control with Landlord and/or
Landlord's sole member, as the case may be, such subsequent
landlord shall not be liable for a breach of the warranty
contained in Subsection 14.6(a). In the event Landlord is
required by any governmental agency to perform remedial
activities on the Leased Premises as a result of the
Condition, Tenant agrees to enter into an appropriate access
and remediation agreement which is reasonably acceptable to
Tenant.
14.10. Upon prior reasonable notice, Landlord shall have the
right to inspect Tenant's operations on the Leased Premises
to ascertain Tenant's compliance with the provisions of this
Lease at any reasonable time. Tenant shall also provide
periodic certifications to Landlord, upon request, that
Tenant is in compliance with the environmental restrictions
contained in this Section of the Lease. Landlord shall have
the right, but not the obligation, to enter into the Leased
Premises and perform any obligation of Tenant under this
Lease of which Tenant is in default, including without
limitation, any remediation necessary due to the
environmental impact of Tenant's operations on the Leased
Premises, without waiving or reducing Tenant's liability for
Tenant's default of this Section of this Lease.
14.11. All of the terms and provisions of this Section of this
Lease shall survive the expiration or termination of this
Lease for any reason whatsoever.
15. MAINTENANCE AND REPAIRS
15.1. Tenant will at its sole cost and expense and throughout
the entire term keep the Leased Premises and all additions
and improvements thereto in good order and repair
(excepting, however, all repairs made by Landlord during the
One-Year Warranty period or made necessary by Landlord's
negligence or default under the terms of this Lease).
Following the One-Year Warranty period, Landlord agrees to
assign to Tenant all then existing warranties for any labor
and materials used on or in the Leased Premises.
15.2. Tenant's obligations under this Section shall include,
without limitation, maintaining in good operating condition
(including making all necessary repairs and replacements to
accomplish the same) the interior, exterior, roof and
structural members of the building on the Leased Premises,
all HVAC and other mechanical equipment and systems
(including replacement of the compressor and other major
components), sprinkler systems (including any testing of the
same) landscaping, parking areas and driveways, and any
water, plumbing, sanitary sewer, storm sewer, gas, cable,
telephone or electrical lines or conduits in or on the
Leased Premises, and making all repairs required due to
fire, casualty, or the elements.
15.3. Tenant's obligation to maintain and repair the roof is
conditioned upon Landlord providing Tenant, by the Lease
Commencement Date, a full twenty (20) year (or longer) No
Dollar Limit manufacturer's warranty, to be in Tenant's
name. The warranty must be in conformance with industry
standards, and shall cover at least the materials provided.
15.4. Subject to Tenant's reasonable security requirements,
Landlord may at reasonable times and upon reasonable notice,
inspect, alter or repair the Leased Premises when necessary
for its safety or preservation.
16. REAL ESTATE TAXES
16.1. Landlord and Tenant shall cooperate to work with the
applicable taxing authority to obtain approval for all real
estate tax bills to be delivered directly by the taxing
authority to the Tenant. In the event that such tax bills
may not be delivered directly to Tenant, but instead are
delivered to Landlord, Landlord shall deliver to Tenant
within fifteen (15) days of receipt, all real estate tax
bills for the Leased Premises. Tenant shall pay such tax
bills directly to the taxing authority and send a copy of
such payment to Landlord. Tenant shall have the right during
the term of this Lease, at Tenant's expense, to appeal the
amount of any real estate tax assessed against the Leased
Premises. Landlord shall reasonably cooperate with Tenant in
such appeal efforts.
16.2. Provided the real estate tax bills are delivered to
Tenant by Landlord in a timely manner, Tenant agrees to pay
all such taxes before delinquency and Landlord shall not be
obligated to pay any penalty for delinquent payment. Any
payment due pursuant to this Lease provision shall be
prorated as of the Lease Commencement Date and the
termination or expiration date of this Lease.
17. UTILITIES
17.1. Tenant shall pay, directly to the respective provider
with no surcharge paid to Landlord, for all sewerage and
trash disposal services, water, gas, heat, electric current
and other utilities consumed by it, in or upon the Leased
Premises, at rates set by local public utility as approved
by public authority having jurisdiction. Landlord warrants
that all such utilities and services are available to the
Leased Premises. Landlord agrees to fumish the Leased
Premises with separate meters for measuring consumption of
water and electricity .
17.2. Notwithstanding the foregoing, in the event that Tenant
is able to purchase, acquire or otherwise obtain any or all
utilities through direct access or otherwise, as a result of
the deregulation of the utilities or as a result of the
utility market providing open access and customer choice
through pilot programs, legislation, or otherwise, Tenant
shall have the option, at any time and from time to time
during the term of this Lease, to purchase its utilities
from any source and to elect the service provider, supplier,
and such supplier's distributor and/or transmitter for any
or all utilities servicing the Leased Premises. Tenant's
election shall not abrogate Landlord's obligation to
furnish, install and maintain or cause to be furnished,
installed or maintained without expense to Tenant all gas,
electric, water, telephone and sanitary and storm sewer
lines and equipment required to provide the Leased Premises
with such utilities and service as described above;
provided, however, that in the event Tenant's election
necessitates new or additional lines and/or equipment,
Tenant shall provide the same at its sole cost and expense.
Landlord agrees to grant Tenant easements, in locations
reasonably acceptable by Landlord, for purposes of
installing and maintaining any such lines or equipment.
18. LIABILITY INSURANCE AND INDEMNIFICATION
18.1. Tenant, in its name and at its own expense, shall
procure and continue in force, commercial general liability
insurance against damages occurring on the Leased Premises
during the term or any extensions of this Lease. Such
insurance shall be in an amount not less than Three Million
and No/100 Dollars ($3,000,000.00) general aggregate limit
for bodily injury and property damage. A certificate of such
insurance shall be provided to Landlord within thirty (30)
days after the Lease Commencement Date, and thereafter upon
written request. Such policy shall state that it may not be
canceled or modified prior to giving Landlord at least
thirty (30) days prior written notice.
18.2. Should Tenant desire to carry all or part of the
insurance coverage described in this Section through self-
insurance and/or under a "blanket" policy or policies
covering other properties of Tenant, its parent corporation,
its subsidiaries, or controlling or affiliated corporations,
or of any assignee of this Lease, such methods of insurance
shall be deemed compliance with Tenant's obligations under
this Section, as to both original coverage and renewals.
18.3. Tenant covenants to keep in good order and repair the
plate glass in the Leased Premises, and to replace all
broken glass with the same quality as that broken; provided,
however, should damage or breakage occur due to the fault or
neglect of Landlord, then Landlord shall be responsible for
replacing the damaged or broken glass.
18.4. Landlord agrees to defend, indemnify and save harmless
Tenant from and against any and all claims and demands
whether from injury to person, loss of life, or damage to
property, occurring within, on or about the Leased Premises
as may result from any injury or damage caused by acts or
omissions of Landlord.
18.5. Tenant agrees to defend, indemnify and save harmless
Landlord from and against any and all claims and demands
whether from injury to person, loss of life, or damage to
property, occurring within, on or about the Leased Premises,
excepting, however, such claims or demands as may result
from any injury or damage caused by acts or omissions of
Landlord.
19. CASUALTV (PRODERTY) INSURANCE AND DAMAGE TO LEASED PREMISES
19.1. Tenant shall at all times during the term of this Lease
and any Lease renewals maintain "all risk" insurance on the
Leased Premises insuring against all risks of physical loss
or damage to property in the amount of one hundred percent
(100%) of the full replacement cost of the improvements
located on the Leased Premises. A certificate of such
insurance shall be provided to Landlord within thirty (30)
days after the Lease Commencement Date which names Landlord
and Landlord's mortgagee, if any, as loss payees, and
thereafter upon written request. Such policy shall state
that it may not be canceled prior to giving Landlord and
mortgagee, if any, at least ten (10) days prior written
notice in the event of non- payment of premium, and thirty
(30) days prior written notice in all other instances.
19.2. Except as otherwise provided in this Section, in the
event the Leased Premises shall be partially damaged or
totally destroyed by fire or other disaster, Tenant shall
promptly cause the Leased Premises to be restored, subject
to such changes as Tenant may reasonably require and
Landlord reasonably approves prior to commencement of
reconstruction. Due allowance shall be made for (a)
reasonable time necessary (not to exceed one hundred eighty
(180) days) for Tenant to adjust the loss with insurance
companies, and (b) delay occasioned by strikes, lockouts,
and conditions beyond the reasonable control of Tenant,
provided such delay does not exceed six (6) months without
Landlord's consent.
19.3. Should Tenant desire to carry all or part of the
insurance coverage described in this Section through self-
insurance and/or under a "blanket" policy or policies
covering other properties of Tenant, its parent corporation,
its subsidiaries, or controlling or affiliated corporations,
or of any assignee of this Lease, such methods of insurance
shall be deemed compliance with Tenant's obligations under
this Section, as to both original coverage and renewals.
19.4. Should the Leased Premises, or a portion of the Leased
Premises, be rendered untenantable by fire or other
disaster, Rent shall not ▇▇▇▇▇. Notwithstanding anything to
the contrary contained in this Lease, if such damage occurs
during the last two (2) years of the term of this Lease and
the cost of restoration of the Leased Premises would be more
than one-third (1/3) of the replacement value of the Leased
Premises, as certified by a registered architect, Landlord
and Tenant shall each have the right to terminate this Lease
by written notice to the other given within thirty (30) days
after such occurrence. If this Lease is so terminated, all
insurance proceeds attributable to the Leased Premises shall
be paid to Landlord and Landlord alone shall have the right
to settle any claim with the insurance carrier. If Landlord
elects to terminate this Lease, such termination shall not
be effective if Tenant elects (within ten (10) days after
receipt of Landlord's notice of termination) to renew this
Lease by exercising any remaining options for extending the
term of this Lease. In the event this Lease shall be
terminated as above provided, Tenant shall either pay
Landlord, by way of insurance or otherwise, the amount
required to restore the Leased Premises, or Tenant will
restore, or have restored, the Leased Premises; then, if
Tenant shall have paid any Rent in advance, Tenant shall be
entitled to a proportionate refund.
19.5. Provided this Lease is not terminated as set forth in
this Section, the term of this Lease shall be automatically
extended for a period of time equal to the period of time
the Leased Premises are totally untenantable due to fire or
other disaster.
20. WAIVER OF SUBROGATION
20.1. Tenant agrees not to assign to any insurance company any
right or cause of action for damage to the property of
Tenant located in the Leased Premises which Tenant now has
or may subsequently acquire against Landlord during the term
of this Lease, and expressly waives all rights of recovery
for such damage.
20.2. Landlord agrees not to assign to any insurance company
any right or cause of action for damages to the property of
Landlord located in the Leased Premises which Landlord now
has or may subsequently acquire against Tenant during the
term of this Lease, and expressly waives all rights of
recovery from such damage.
20.3. It is specifically understood this Section shall only
apply to the extent insurance proceeds are recovered.
21. TENANT'S RIGHT TO MAKE CHAN!!ES TO LEASED PREMISES
21.1. Tenant, at its own expense during the term of this
Lease, may make any alterations or additions to the Leased
Premises which it may deem necessary, except changes which
would impair the structural integrity of the Leased Premises
(unless approved in writing by Landlord). Tenant shall make
all changes in a good and workmanlike manner and in
accordance with applicable governmental regulations. All
salvage from such work shall belong to Tenant. All permanent
improvements shall belong to Landlord.
21.2. All trade fixtures and equipment and other personal
property owned by Tenant and installed or placed by it in
the Leased Premises may be removed by Tenant at any time
during the term of the Lease. Provided Tenant gives Landlord
prior reasonable notice, and provided further that Tenant
pays Landlord prorated Rent through the date of the removal
of such trade fixtures, equipment and other personal
property, such removal may also take place within fifteen
(15) days after the expiration term of the Lease. Tenant
agrees to repair any damage to the Leased Premises
occasioned by such removal.
22. ASSIGNMENT AND SUBLETTING
22.1. Tenant shall have the right to assign this Lease or
sublet the entire Leased Premises at any time without
Landlord's consent or approval. Tenant shall give prior
written notice of any and all assignments and subleases to
Landlord, together with a copy of the applicable instrument.
22.2. Unless agreed otherwise by the parties, the assignment
of this Lease or subletting of the Leased Premises shall not
relieve Tenant of its obligations under this Lease.
23. EMINENT DOMAIN
23.1. If the entire building on the Leased Premises shall be
taken by reason of condemnation or under eminent domain
proceedings, Landlord or Tenant may terminate this Lease as
of the date when possession of the building is taken. If a
portion of the building shall be taken under eminent domain
or by reason of condemnation and if in the opinion of
Tenant, reasonably exercised, the remainder of the building
is no longer suitable for Tenant's business, this Lease, at
Tenant's option, to be exercised by ten (10) days prior
written notice to Landlord given within sixty (60) days of
such taking, shall terminate. In such event, any unearned
Rent paid or credited in advance shall be refunded to
Tenant. If this Lease is not so terminated, Landlord shall
proceed promptly and with due diligence, to restore the
building. Until so restored, Rent shall ▇▇▇▇▇ to the extent
that Tenant shall not be able to conduct business in a
reasonable manner, and Rent for the remaining portion of the
term of this Lease shall be proportionately reduced (based
on the reduced square foot floor area of the building).
23.2. In the event (A) any part of the parking areas of the
Leased Premises shall be taken by reason of condemnation or
under eminent domain proceedings (unless there are at least
fifty (50) regular spaces and four (4) handicapped spaces
left on the Leased Premises after the condemnation), or (8)
if as a result of any taking of the Leased Premises or other
property subject to an easement benefiting the Leased
Premises any driveway or curb cut access to the Leased
Premises will be closed (other than temporary closings of
less than six (6) months due to construction resulting from
such taking), and if, under either event described in
Section 23.2(A) or Section 23.2(8) above, in the opinion of
Tenant, reasonably exercised, the Leased Premises are no
longer suitable for Tenant's business, this Lease, at
Tenant's option by ten (10) days prior written notice to
Landlord given within sixty (60) days of such taking, shall
terminate. If this Lease is not so terminated, Landlord, at
Landlord's expense, shall proceed promptly and with due
diligence to restore the remaining Leased Premises and
parking areas to a proper and usable condition. However,
Tenant shall not have the right to terminate this Lease if
Landlord provides alternate parking areas which are
reasonably acceptable to Tenant. Until restored, Rent shall
▇▇▇▇▇ to the extent that Tenant shall not be able to conduct
business at the Leased Premises in a reasonable manner, and
Rent for the remaining portion of the term of this Lease
shall be proportionally reduced (based on the effect such
taking has on Tenant's business at the Leased Premises).
23.3. For purposes of this Section, the term "condemnation or
under eminent domain proceedings" shall include conveyances
and grants made in anticipation of or in lieu of such
proceedings.
24. TENANT'S DEFAULT
24.1. Each of the following shall constitute a default by
Tenant and a breach of this Lease:
24.1.1. Any of the following which shall result in final
adjudication against Tenant: 24.1.1.1. The filing of a
bankruptcy petition by or against Tenant for
adjudication, reorganization or arrangement; or
24.1.1.2. Any proceedings for dissolution or liquidation of
Tenant; or 24.1.1.3. Any assignment for the benefit of
Tenant's creditors. 24.1.2. Failure to:
24.1.2.1. Pay Rent for a period of fifteen (15) days after
receipt of written notice; or
24.1.2.2. Perform any other covenant or condition of this
Lease for a period of thirty (30) days after receipt of
written notice.
24.2. In the event of any default of Tenant, in addition to
any other remedies available to Landlord by law, Landlord
may serve written notice upon Tenant that Landlord elects to
terminate this Lease upon a specified date not less than
thirty (30) days after the date of receipt of such notice.
This Lease shall expire on the date so specified as if that
date had been originally fixed as the expiration date of the
term granted in this Lease unless payment in full has been
made within such thirty (30) day period, or, for non-
monetary defaults, unless steps have, in good faith, been
commenced promptly by Tenant to cure the default, and are
prosecuted to completion with diligence and continuity. If
the matter in question shall involve building construction,
and if Tenant shall be subject to unavoidable delay by
conditions beyond the control of Tenant, Tenant's time to
perform shall be extended for a period commensurate with
such delay, provided such delay does not exceed six (6)
months without Landlord's consent.
24.3. Upon termination of this Lease for Tenant's default,
Landlord or its agents may immediately or at any time after
the termination, re-enter and resume possession of the
Leased Premises and remove all persons and property from the
Leased Premises, bya suitable action or proceeding at law,
without being liable for any damages, subject, however, to
Tenant's right to remove trade fixtures and personal
property, after notice to Landlord, within fifteen (15) days
after termination of the Lease. No re-entry by Landlord
shall be deemed an acceptance or a surrender of this Lease.
Landlord may then, in its own behalf, relet any portion of
the Leased Premises for any period of the remaining term for
any reasonable sum to any reasonable tenant for any
reasonable use or purpose. In connection with any reletting,
Landlord may make any changes to the Leased Premises and may
grant any concessions of free rent as may be reasonably
appropriate or helpful in effecting such lease.
25. RENT UNDER TENANT'S DEFAULT
25.1. In no event shall Landlord be entitled to an
acceleration of Rent. Additionally, in the event this Lease
shall be terminated for Tenant's default, Landlord's sole
remedy shall be to recover from Tenant an amount equal to
the amount of Rent, real estate taxes and insurance reserved
under this Lease for the remainder of the initial term or
the option period then in effect, as the case may be, less
the net rent, real estate taxes and insurance if any,
collected by Landlord on reletting the Leased Premises,
which shall be due and payable, by Tenant to Landlord, on
the several days on which the Rent reserved in this Lease
would have become due and payable. Net rent collected on
reletting by Landlord shall be computed by deducting from
the gross rents collected all actual and reasonable expenses
incurred by Landlord in connection with the reletting of the
Leased Premises, including broker's commissions and the cost
of repairing, renovating or remodeling the Leased Premises,
but not including the cost of performing any covenant
required to be performed by Landlord under this Lease.
26. LANDLORD'S DEFAULT
26.1. Each of the following shall constitute a default by
Landlord and a breach of this Lease:
26.1.1. Landlord shall neglect to pay when due any taxes or any
obligations on any mortgage or encumbrance affecting title
to the Leased Premises within fifteen (15) days after
written notice to Landlord (to which this Lease shall be
subordinate); or
26.1.2. Landlord shall fail to make any other payment which
Landlord is obligated to pay under this Lease, and such
default continues uncured for fifteen ( 15) days after
written notice to Landlord; or
26.1.3. In the event Landlord shall fail to perform any other
obligation specified in this Lease, and such default
continues uncured for thirty (30) days after notice to
Landlord, or if such default can not reasonably be cured
within such thirty (30} period, then within an additional
thirty (30) period, provided Landlord is at all times
diligently and in good faith prosecuting the cure of same.
26.2. In the event of Landlord's default, in addition to any
other remedies available to Tenant by law, Tenant may, but
shall not be required to, cure such default, and do all
necessary work and make all necessary payments on behalf of
and at the expense of Landlord. In such event, Landlord
shall, within thirty (30} days of demand, pay Tenant the
amount actually paid by Tenant in curing any such default.
If not paid within thirty (30) days after written notice to
Landlord, Tenant and Landlord agree to submit the dispute to
binding arbitration pursuant to the rules of the American
Arbitration Association ("AAA") for resolution as quickly as
possible pursuant to the AAA procedures. The prevailing
party in the arbitration proceedings shall be entitled to
recover from the other party the prevailing party's
reasonable attorney's fees and other costs associated with
the arbitration. If the Tenant prevails in the arbitration
proceeding, and if Tenant does not receive full payment of
all amounts owed, including attorney's fees, within thirty
(30) days of the final arbitration decision, Tenant may
withhold Rent and other payments due to Landlord and apply
the Rent or other payments to the payment of the
indebtedness. Withholding of Rent or other payments as
provided in this Section or elsewhere in this Lease shall
not constitute a default by Tenant in the payment of Rent or
other payments unless Tenant shall fail to pay such amount
withheld within thirty (30) days after a final adjudication
that such amount withheld is owing to Landlord.
27. FORCE MAJEURE
27.1. Anything in this Lease to the contrary notwithstanding,
neither Landlord nor Tenant shall be in default of the
performance of any provisions of this Lease to the extent
such performance is delayed or prevented by strike, war, act
of God, or other cause beyond the control of the party
seeking to excuse such performance; provided, however, no
such excusable delay shall exceed ninety (90} days.
28. SEVERABILITY
28.1. If any term or provision of this Lease (or the
application of any term of provision of this Lease to any
person or circumstances} shall to any extent be invalid or
unenforceable, the remainder of this Lease (or the
application of such term or provision to persons or
circumstances other than those as to which it is held
invalid or unenforceable} shall not be affected and each
term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
29. OBLIE:ATION OF SUCCESSORS
29.1. All of the provisions of this Lease shall bind and inure
to the benefit of Landlord and Tenant, and their respective
heirs, legal representatives, successors and assigns. All
covenants, conditions and agreements contained in this Lease
shall be construed as covenants running with the land.
29.2. In the event of any sale or other transfer of Landlord's
interest in the Leased Premises, and provided Landlord gives
Tenant written notice of such transfer along with a copy of
an agreement by the new landlord/owner whereby the new
landlord/owner is agreeing to recognize this Lease and
assume all of Landlord's obligations under this Lease,
Landlord shall be relieved of all liabilities and
obligations of Landlord under this Lease accruing after the
date of such transfer.
30. NOTICES
30.1. All notices and Rent shall be sent to Landlord as
follows, until Tenant is notified by Landlord otherwise in
writing:
To Landlord: Grant Ave. & Standard Ave. Development, LLC
c/o Westlake Development, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to: Shulman, Curtin, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
P.C. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
30.2. All notices shall be sent to Tenant as follows, until
Landlord is notified by Tenant otherwise in writing:
To Tenant at: Eckerd Corporation Store No.5881 R
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Real Estate
with copies to: Eckerd Corporation and Eckerd Corporation Store
No.5881 R Store No.5881 R
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Regional Real Attn: Legal Department
Estate Director (CW3W)
30.3. Notices to each party shall be sent by certified mail,
return receipt requested, or by bonded overnight courier,
and shall be effective upon receipt or refusal to accept
delivery. Notices delivered to the Leased Premises shall not
constitute notice to Tenant under the terms of this Lease.
31. MISCELLANEOUS --
31.1. The captions in this Lease are for convenience only.
They are not a part of this Lease and do not in any way
limit or amplify the terms and provisions of this Lease.
31.2. This Lease shall be construed in accordance with
applicable law of the state in which the Leased Premises are
located.
31.3. Intentionally Deleted.
31.4. Other than the Estoppel Certificate required by Landlord
at the time of the placement of the construction financing
and the permanent loan associated with this Lease, Tenant
agrees from time to time but no more often than three times
per Lease year, upon (a) not less than thirty (30) days'
prior written request by Landlord, and (b) payment by
Landlord of a $150.00 fee to cover legal and administrative
costs incurred by Tenant in processing such request, to
execute and deliver to Landlord in a reasonably timely
manner Tenant's standard written Estoppel Certificate
stating (i) whether this Lease has been modified or amended
and, if so, identifying any such modification or amendment;
(ii) whether Rent and other charges have been paid more than
thirty (30) days in advance of the date when due and, if so,
the date to which they have been paid in advance; and (iii)
whether to the best of Tenant's knowledge, any uncured
default exists on the part of Landlord and, if so,
specifying the nature of such default.
31.5. One or more waivers of any covenant, term or condition
of this Lease by either party shall not be construed as a
waiver of a subsequent breach of the same or any other
covenant, term or condition. Any delay or omission by either
party to seek a remedy for any breach of this Lease or to
exercise a right accruing to such party by reason of such
breach shall not be deemed a waiver by such party of its
remedies or rights with respect to such breach. The consent
or approval by either party to or of any act by the other
party requiring such consent or approval shall not be deemed
to waive or render unnecessary consent to or approval of any
similar act.
31.6.This Lease shall become null and void without further
action of the parties if Tenant has not received a fully-
executed copy of this Lease October 31, 2003.
31.7.The parties acknowledge that the parties and their
counsel have reviewed and revised this Lease and that the
normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Lease,
or any part of it, or any exhibits or amendments or
agreements supplementary to this Lease.
31.8.Should either party institute any action or proceeding to
enforce any provision hereof or for a declaration of such
party's rights or obligations hereunder, the prevailing
party in such action or proceeding shall be entitled to
receive from the losing party such amounts as the court may
adjudge to be reasonable attorneys' fees and expenses for
services rendered to the party prevailing in such action or
proceeding, and such fees shall be deemed to have accrued
upon the announcement of such action or proceeding.
32. SHORT FORM LEASE
32.1. The parties agree that a short form version of this
Lease will be executed for the purpose of recording. The
short form lease shall be recorded before any mortgage
placed on the Leased Premises or any part of the Leased
Premises. Landlord shall pay for any and all real estate
transfer fees assessed in connection with this Lease or
assessed in connection with the recording of the short form
version of this Lease.
33. CONDITION PRECEDENT
33.1. The commencement of the term of this Lease and
Landlord's and Tenant's obligations hereunder are expressly
contingent upon Landlord obtaining all necessary approvals
and permits from all applicable governmental agencies and
authorities in order to permit and accommodate Tenant's
intended use of the Leased Premises as set forth in this
Lease and to permit the construction of the Leased Premises
as shown on Exhibit "A." Landlord agrees to use all
commercially reasonable efforts and to work diligently to
obtain such approvals and permits. Notwithstanding the
foregoing, such approvals and permits shall not include
licenses for the sale of alcoholic beverages for off-
premises consumption as set forth in Section 1.2. of this
Lease. In the event the foregoing approvals and permits are
not obtained by Landlord on or before December 1, 2003,
Tenant, at Tenant's sole discretion, shall have the option
of extending the deadline for Landlord obtaining the
foregoing approvals and permits, or of canceling this Lease
by giving Landlord thirty (30) days written notice thereof;
provided however, that Tenant's cancellation shall be
nullified if Landlord obtains the foregoing permits and
approvals within such 30-day period.
IN WITNESS WHEREOF, the parties have caused this Lease to be
executed by their respective duly authorized representatives as
of the date set forth in the initial paragraph of this Lease.
"LANDLORD'"
WITNESSES as to Landlord: GRANT AVE. & STANDARD AVE.
DEVELOPMENT, LLC, a New York
limited liability company
/s/ ▇▇▇▇▇ J Suertin By: Westlake Holding, Inc., a New York
Printed Name: ▇▇▇▇▇ J Suertin corporation, its sole member
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
/s/ ▇▇▇▇▇ L Balots ▇▇▇▇▇▇ ▇ ▇▇▇▇
Printed Name: ▇▇▇▇▇ L Balots President
"TENANT"
WITNESSES as to Tenant: ECKERD CORPORATION, a Delaware corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ Vice President
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
LEGAL DESCRIPTION
ALL THAT CERTAIN PIECE OR PARCEL OF LAND SITUATE IN THE CITY
OF AUBURN, COUNTY OF CAYUGA, STATE OF NEW YORK, KNOWN AND
DISTINGUISHED AS PART OF GREAT LOT NO. 38 OF THE OLD TOWNSHIP OF
▇▇▇▇▇▇▇▇ AND BEING MORE PARTICULARLY BOUNDED AND DESCRIPED AS
FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY MARGIN OF GRANT AVENUE
AT ITS INTERSECTION WITH THE NORTHERLY MARGIN OF STANDART AVEUNE;
THENCE NORTH 85 DEG. 30 MIN 00 SEC. WEST ALONG SAID MARGIN OF
STANDART AVENUE, A DISTANCE OF 338.68 FEET TO A POINT ON THE
DIVISION LINE BETWEEN THE LANDS NOW OR FORMERLY OF ▇▇▇▇ ▇▇▇▇▇ AS
DESCRIBED IN BOOK 760 OF DEEDS AT PAE 35 ON THE SOUTHEAST AND
THE LANDS NOW OR FORMERLY OF STANDART ▇▇▇▇▇ ASSOCIATES LIMITED
PARTNERSHIP AS DESCRIBED IN BOOK 724 OF DEEDS AT PAGE 78 ON THE
NORTHWEST: THENCE NORTH 37 DEG 12 MIN 00 SEC. EAST ALONG SAID
DIVISION LINE, A DISTANCE OF 555.20 FEET TO A POINT ON THE
DIVISION LINE BETWEEN THE SAID LANDS OF DILAJ ON THE SOUTHWEST
AND THE LANDS NOW OR FORMERLY OF ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AS DESCRIBD IN
BOOK 725 OF DEEDS AT PAGE 154 ON THE NORTHEAST; THENCE SOUTH 52
DEG 48 MIN 00 SEC EAST ALONG SAID DIVISION LINE, A DISTANCE OF
102.00 FEET TO A POINT ON THE DIVISION LINE BETWEEN THE SAID
LANDS OF DILAJ ON THE NORTHWEST AND THE LANDS NOW OR FORMERLY OF
THE SALVATION ARMY AS DESCRIBED IN BOOK 570 OF DEEDS AT PAGE 44
ON THE SOUTHEAST; THENCE SOUTH 37 DEG 12 MIN 00 SEC WEST ALONG
SAID DIVISION LINE, A DISTANCE OF 180.00 FEET TO A POINT ON THE
DIVISION LINE BETWEEN THE LANDS NOW OR FORMERLY OF J.E.D.A OF
AUBURN, LLC AS DESCRIBED IN BOOK 1053 OF DEEDS AT PAGE 225 ON THE
SOUTHWEST AND THE SAID LANDS OF THE SALVATION ARMY ON THE
NORTHEAST; THENCE SOUTH 52 DEG 48 MIN 00 SEC EAST ALONG SAID
DIVISION LINE, A DISTANCE OF 183.00 FEET TO A POINT ON THE SAID
MARGIN OF GRANT AVENUE; THENCE SOUTH 37 DEG 12 MIN 00 SEC WEST
ALONG SAID MARGIN, A DISTANCE OF 192.23 FEET TO THE POIINT OF
BEGINNING CONTAINING 2.2777 ACRES OR 99,218 SQUARE FEET OF LANDS,
MORE OR LESS.
THE ABOVE DESCRIBED PARCEL IS INTENDED TO BE THE COMBINATION
OF THE PARCELS CONVEYED TO ▇▇▇▇ ▇▇▇▇▇ BY DEED DATED APRIL 28,
1988 AND RECORDED AS BOOK 760 OF DEEDS AT PAGE 35, PARCEL
CONVEYED TO J.E.D.A OF AUBURN LLC BY DEED DATED DECEMBER 1, 2000
AND RECORDED AS BOOK 1042 OF ▇▇▇▇ AT PAGE 263 & PARCEL CONVEYED
TO J.E.D.A. OF AUBURN LLC DATED APRIL 10, 2001 AND RECOREDED AS
BOOK 1053 OF DEEDS AT PAGE 225.
