ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
is made and entered into as of the 20th day of September, 2004,
by and BETWEEN HERKIMER RD. & EUCLID RD. DEVELOPMENT, LLC, a New
York limited liability company ("Assignor"), and AEI INCOME &
GROWTH FUND XXI LIMITED PARTNERSHIP, a Minnesota limited
partnership, whose corporate general partner is AEI Fund
Management XXI, Inc., a Minnesota corporation, and AEI ACCREDITED
INVESTOR FUND 2002 LIMITED PARTNERSHIP, whose corporate general
partner is AEI Fund Management XVIII, Inc., a Minnesota
corporation ("Assignee").
RECITALS:
A. Assignor and Assignee are parties to that certain Purchase
and Sale Agreement dated March 18, 2004, (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 January 27, 2004 (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 sthe 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: HERKIMER RD. & EUCLID RD. DEVELOPMENT, LLC,
a New York limited liability company
By: Westlake Holding, Inc.,
a New York corporation
Its: Sole member
By: /s/ Xxxxxx X Xxxx
Xxxxxx X. Xxxx, President
ASSIGNEE: AEI REAL ESTATE FUND XXI LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation
Its: General Partner
By: /s/ Xxxxxxx X Xxxxx
Xxxxxxx X. Xxxxx, its
Chief Financial Officer
AEI ACCREDITED INVESTOR FUND
2002 LIMITED PARTNERSHIP,
a Minnesota limited
partnership
By: AEI Fund Management XVIII, Inc.,
a Minnesota corporation
Its: General Partner
By:/s/ Xxxxxxx X Xxxxx
Xxxxxxx X. Xxxxx, its
Chief Financial Officer
STATE OF NEW YORK )
) ss.
CITY/COUNTY OFONONDAGA)
The forgoing instrument was acknowledged before me this 10th
day of September, 2004, by Xxxxxx X. Xxxx, as President of
Westlake Holding, Inc., a New York corporation, sole member of
HERKIMER RD. & EUCLID RD. 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
[Notarial Seal]
/s/ Xxxxxxx X Xxxxx
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The forgoing instrument was acknowledged before me this 9th
day of September, 2004, by Xxxxxxx X. Xxxxx, as Chief Financial
Officer of AEI Fund Management XXI, Inc., a Minnesota
corporation, General Partner of AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota limited partnership, on behalf
of said corporation and limited partnership.
WITNESS my hand and official seal.
[Notarial Seal]
/s/ Xxxxxxxx X Xxxxxxxxx
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The forgoing instrument was acknowledged before me this 9th
day of September, 2004, by Xxxxxxx X. Xxxxx, as Chief Financial
Officer of AEI Fund Management XVIII, Inc., a Minnesota
corporation, General Partner of AEI ACCREDITED INVESTOR FUND 2002
LIMITED PARTNERSHIP, a Minnesota limited partnership, on behalf
of said corporation and limited partnership.
WITNESS my hand and official seal.
[Notarial Seal]
/s/ Xxxxxxxx X Xxxxxxxxx
Notary Public
EXHIBIT A
TO
ASSIGNMENT AND ASSUMPTION OF LEASE
("Premises")
All That Tract or Parcel of Land, situate in the City of Utica,
County of Oneida, and State of New York, being more particularly
bounded and described as follows:
Beginning at a point on the easterly street line of Northern
Road at its intersection with the division line between the lands
now or formerly of Quad Group Developers, Inc. as described in
Liber 2774 of Deeds at Page 326 on the North and the lands now or
formerly of Xxxxxx X. and Xxxxxx X. Xxxxxx as described in Liber
2062 of Deeds at Page 11 on the South, said point being North 42
51'00" East a distance of 116.33 feet along the said line of
Northern Road from its intersection with the northerly street
line of Herkimer Road; thence North 42 51'00" East along the said
line of Northern Road, a distance of 297.84 feet to a point;
thence South 47 13'00" East through the lands of said Quad Group
Developers, Inc. a distance of 300.19 feet to a point on the
westerly street line of Euclid Road; thence South 42 48'00" West
along the said line of Euclid Road, a distance of 392.32 feet to
a point on the said xxxxxxxxx xxxxxx xxxx xx Xxxxxxxx Xxxx;
thence North 51 22'28" West along said line of Herkimer Road, a
distance of 200.57 feet to a point on the division line between
the lands now or formerly of Xxxxxx X. and Xxxxxx X. Xxxxxx as
described in Liber 2062 of Deeds at Page 13 on the West and the
lands now or formerly of Xxxxxxx X. Xxxxxx as described in Liber
2797 of Deeds at Page 28 on the East; thence North 39 57'51" East
along said division line, a distance of 116.05 feet to a point on
the division line between the said lands of Quad Group
Developers, Inc. on the North and the said lands of Xxxxxx
(2061/13); thence North 51 19'00" West along said division line,
a distance of 51.30 feet to a point on the division line between
the said lands of Quad Group Developers, Inc. on the North and
the said lands of Xxxxxx (2062/11) on the south; thence North 51
27'00" West along said division line, a distance of 43.62 feet to
the point of beginning.
LEASE AGREEMENT
ECKERD CORPORATION
STORE NO. 5887R
UTICA, NEW YORK
LEASE AGREEMENT INDEX
ECKERD CORPORATION STORE NO 5887R
UTICA, NEW YORK
SECTION
1. LEASED PREMISES
2. INITIAL TERM AND OPTION PERIODS
3. RENT
4. INTENTIONALLY DELETED
5. INGRESS AND EGRESS
6. EXCLUSIVE
7. LANDLORD'S REPRESENTATIONS AND WARRANTIES
8. LEASE SUBORDINATION AND NOTICES TO MORTGAGEES
9. CONSTRUCTION
10. EXTERIOR FACILITIES
11. SIGNS AND ANTENNAE
12. MECHANIC'S LIENS
13. COMPLIANCE WITH LAW AND REGULATIONS
14. ENVIRONMENTAL COMPLIANCE
15. MAINTENANCE AND REPAIES
16. REAL ESTATE TAXES
17. UTILITIES
18. LIABILITY INSURANCE AND XXXXXXXXXXXXXXX
00. CASUALTY (PROPERTY) INSURANCE AND DAMAGE TO LEASED PREMISES
20. WAIVER OF SUBROGATION
21. TENANT'S RIGHT TO MAKE CHANGES TO LEASED PREMISES
22. ASSIGNMENT AND SUBLETING
23. EMINENT DOMAIN
24. TENANT'S DEFAULT
LEASE AGREEMENT INDEX
ECKERD CORPORATION STORE NO. 58887R
Utica, New York
SECTION
25. RENT UNDER TENANT'S DEFAULT
26. LANDLORD'S DEFAULT
27. FORCE MAJEURE
28. SEVERABILITY
29. OBLIGATIONS OF SUCCESORS
30. NOTICES
31. MICELLANEOUS
32. SHORT FORM LEASE
33. CONDITION PRECEDENT
LEASE AGREEMENT
This Lease Agreement (`Lease') is made this 27th day of
January 2004, by and between HERKIMER RD & EUCLID RD. 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:
1.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 13,824 square feet),
as shown on the site plan on the attached Exhibit "A",
upon real property located at the northern corner of
Herkimer Road and Euclid Road, and situated in the City of
Utica County of Oneida, 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 property 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. 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 Seventy-Four
Thousand One Hundred Seventy-Seven and 04/1OO Dollars
($374,177.04) per year, payable in equal monthly
installments of Thirty-One Thousand One Hundred Eighty-One
and 42/100 Dollars ($31,181.42). Rent during each option
period shall be as follows:
For the first option period $381,084.00 per year; $31,757.00 per month
For the second option period $387,990.00 per year; $32,332.50 per month
For the third option period $394,896.96 per year; $32,908.08 per month
For the fourth option period $401,802.96 per year; $33,483.58 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: 81-
0636753
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/I 00 Dollars ($50.00) to cover the extra
expense involved in handling such delinquency ("Late
Charge").
2
4. Intentionally Deleted
5. Ingress and Egress
5.1. Landlord warrants that it will initially provide
and maintain 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) of a drug
store or a business which sells or dispenses prescription
drugs without the written permission at 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 Representations 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
Attainment 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. It 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.
3
0.Xxxxx Subordination and Notices to Mortgagees
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.
0.Xxxxxxxxxxxx
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 2000,2001 & 2002 with an issue date of February
28, 2003, as amended by Bulletin #1 dated February 28,
2003; by Bulletin #2, dated April 3, 2003, and by Bulletin
#3 dated October 30, 2003) ("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 man
April 1, 2004, 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
4
Leased Premises and provide Tenant with such information in
writing no later than thiiiy (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 or all liens as provided in this Lease; (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. 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 Tenants 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 Lease 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.
0.0.Xx 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
Tenants 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 Sixty-Three Thousand Five Hundred Ninety-One
and No/100 Dollars ($3,563,591.00) ("Estimated Total
Project Costs'). The Estimated Total Project Casts are
set forth
5
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 miscellaneous interior finishes,
fire extinguishers, restroom hardware, toilet
partitions, drive-thru window and pneumatic
systems, the heating, ventilating and air-
conditioning system (9-IVAC'), all interior
plumbing (including hookup to site plumbing), fire
sprinkler systems, building electrical system
(including switchgear 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.
9.7.2. As set forth on the Preliminary Site Budget, the
parties estimate Building Hard Casts in the amount of
One Million One Hundred Sixty-One Thousand Two Hundred
Sixteen and No/100 Dollars ($1,161,216.00) (`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
(Tenant hereby approves of Landlord as the general
contractor, Xxxxxxxxx, Xxxxxx & Xxxxxx as the
project architect, and UR Engineering, P.C. as the
civil engineer); 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 Tenanrs 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
6
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 Tenants 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 or tenants 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 riot give
Tenant the right to terminate this Lease. However, any
written change order or orders by Tenant after Tenants
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 tails 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.
7
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 seventy-
seven (77) full-sized automobiles with spaces striped on
nine foot (9') centers for each car,which includes 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.
8
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 an 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 sings 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 matenalrnei1 for and on account of labor
and materials furnished 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 partys 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,
9
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 Compliance
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 1978, as
amended from time to time ("RCRA"), 42 U.S.C. Sections
6901, et seq.
14.2. For the purposes of this Lease, the tern, "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)
polychlorinatedbiphenyls (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
attorneys 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
Xxxxxx X. Xxxx, 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
10
Assessment" prepared by Xxxxxxx Engineering ("PE") dated
November, 2003 (PE Project No. 2003033)(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 per-formed 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.
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 an 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
11
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 manufacturers 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 arid 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
furnish 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
12
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. Casual (Property) 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 nonpayment 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.
13
19.4. Should the Leased Premises, or a portion of the
Leased Premises, be rendered untenantable by fire or
other disaster, Rent shall not xxxxx. 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 Changes 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.
14
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 xxxxx 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).
00.0.Xx 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 (B) 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(B) 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 xxxxx 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.
15
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, by a 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.
00.Xxxx 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 frofl1 the gross rents collected
all actual and reasonable expenses incurred by Landlord
in connection with the relettiflg of the Leased Premises,
including brokers 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)
16
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.Obligation 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: Herkimer Rd. & Euclid Rd. Development LLC
c/o Westlake Development LLC
000 Xxxxx Xxxxxx, Xxxxx X-X
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
with a copy to: Shulman, Curtin, Xxxxxxxx & Xxxxx, P.C.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esquire
17
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. 5887R
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Vice President, Real Estate
with copies to: Eckerd Corporation and Eckerd Corporation
Store No. 5887R Store No. 5887R
000 Xxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxx, Xxxxxxx 00000
Attn: Regional Real Estate Director Attn: Legal Department (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 xxxxx 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 Friday, March 5, 2004.
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.
18
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. Conditional 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 April 1, 2004, 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: HERKIMER RD & EUCLID RD DEVELOPMENT
LLC, a New York limited
liability company
By:Westlake Holding,
Inc., a New York
corporation, its sole
member
/s/ Xxxxx J Suertin
Printed Name: Xxxxx J Suertin By /s/ Xxxxxx X Xxxx
Xxxxxx X. Xxxx
President
/s/ Xxxxx X Xxxxx
Printed Name: Xxxxx X Xxxxx
19
"TENANT"
WITNESSES as to Tenant ECKERD CORPORATION, a
Delaware corportation
/s/ Xxxxx X Xxxxxxxx
Printed Name Xxxxx X Xxxxxxxx By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx,
Vice President
/s/ Xxxxxxx Xxxxx
Print Name: Xxxxxxx Xxxxx
20
EXHIBIT "B"
LEGAL DESCRIPTION
ECKERD PARCEL
ALL THAT CERTAIN PIECE OR PARCEL OF LAND SITUATE IN THE CITY
OF UTICA, COUNTY OF ONEIDA, STATE OF NEW YORK, BEING MORE
PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EASTERLY STREET LINE OF NORTHERN
ROAD AT ITS INTERSECTION WITH THE DIVISION LINE BETWEEN THE
LANDS NOW OR FORMERLY OF QUAD GROUP DEVELOPERS, INC. AS
DESCRIBED IN LIBER 2774 OF DEEDS AT PAGE 326 ON THE NORTH
AND THE LANDS NOW OR FORMERLY XXXXXX F & XXXXXX X XXXXXX AS
DESCRIBED IN BLBER 2062 OF DEEDS AT PAGE 11 ON THE SOUTH,
SAID POINT BEING NORTH 42 DEG 51 MIN. 00 SEC. EAST A
DISTANCE OF 116.33 FEET ALONG THE SAID LINE OF NORTHERN ROAD
FROM ITS INTERSECTION WITH THE NORTHERLY STREET LINE OF
HERKIMER ROAD; THENCE NORTH 42 DEG. 51 MIN. 00 SEC. EAST
ALONG THE SAID LINE OF NORTHERN ROAD, A DISTANCE OF 297.84
FEET TO A POINT: THENCE SOUTH 47 DEG. 13 MIN. 00 SEC. EAST
THROUGHT THE LANDS OF SAID QUARD GROUP DEVELOPERS, INC., A
DISTANCE OF 300.19 FEET TO A POINT ON THE WESTERLY STREET
LINE OF EUCLID ROAD; THENCE SOUTH 42 DEG. 48 MIN. 00 SEC.
WEST ALONG THE SAID LINE OF EUCLID ROAD, A DISTANCE OF
392.32 FEET TO A POINT ON THE SAID NORTHERLY STREET LINE OF
HERKIMER ROAD; THENCE NORTH 51 DEG. 22 MIN. 28 SEC. WEST
ALONG SAID LINE OF HERKIMER ROAD, A DISTANCE OF 22.57 FEET
TO A POINT ON THE DIVISION LINE BETWEEN THE LANDS NOW OR
FORMERLY XXXXXX X. & XXXXXX X XXXXXX AS DESCRIBED IN LIBER
2062 OF DEEDS AT PAGE 13 ON THE WEST AND THE LANDS NOW OR
FORMERLY OF XXXXXXX X XXXXXX AS DESCRIBED IN LIBER 2797 OF
DEEDS AT PAGE 28 ON THE EAST: THENCE NORTH 39.DEG. 57 MIN.
51 SEC. EAST ALONG SAID DIVISION LINE, A DISTANCE OF 116.05
FEET TO A POINT ON THE DIVISION LINE BETWEEN THE SAID LANDS
OF QUAD GROUP DEVELOPERS, INC. ON THE NORTH AND THE SAID
LANDS OF COLINS (2062/11 & 13; THENCE NORTH 51 DEG. 27
MIN.MIN. 00 SEC. WEST ALONG SAID DIVISION LINE, A DISTANCE
OF 94.92 FEET TO THE POINT OF BEGINNING, CONTAINING 2.520
ACRES OF LANDS, MORE OR LESS.
THE ABOVE DESCRIBED PARCEL BEING COMPRISED OF THE FOLLOWING
FOUR PARCELS; BEING THE PARCEL CONVEYED TO NORTH UTICA
SENIOR CITZENS RECREATION CENTER, INC. BY XXXXXX XXXXX
XXXXXXX AND XXXXXXXXX X XXXXXXX BY DEED DATED AUGUST 19,
1975 AND RECORDED IN THE ONEIDA COUNTY CLERK'S OFFICE AS
LIBER 2015 OF DEEDS AT PAGE 346; BEING THE PARCEL CONVYEYED
TO NROTH UTICA SENIOR CITZENS RECREATION CENTER, INC. BY
XXXXXXXXX X XXXXX BY DEED DATED OTCTOBER 10, 1984 AND
RECORDED IN THE ONEIDA COUNTY CLERK'S OFFICE AS LIBER 2185
OF DEEDS AT PAGE 67; BEING THE PARCEL CONVEYED TO XXXXXXX X.
XXXXXX BY XXX X XXXXXXXX AND XXXXXXXX X XXXXXXXX BY DEED
DATED OCTOBER 14, 1997 AND RECORDED IN THE ONEIDA COUNTY
CLERK'S OFFCE AS LIBER 2797 OF DEEDS AT PAGE 28; AND BEING A
PORTION OF PARCEL CONVEYED TO QUARD GROUP DEVELOPERS, BINC.
BY THE BORARD OF EDUCATION OF THE CITY OF UTICA SCHOOL
DISTRICT BY DEED DATED APRIL 3, 1997 AND RECORDED IN THE
ONEIDA COUNTY CLERK'S OFFICE AS LIBER 2774 OF DEEDS AT PAGE
326.
