LEASE by and between DUFF DANIELS, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 65% interest, and Duff Myers, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 35% interest ("Landlord") and BEST BUY...
Best Buy #812
LEASE
by and between
XXXX XXXXXXX, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 65% interest, and Duff Xxxxx, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 35% interest
("Landlord") and
BEST BUY CO., INC., a Minnesota Corporation ("Tenant")
0000 Xxxxx Xxxx Xxxxxx, Xxxx, xxxx
TABLE OF CONTENTS
ARTICLE PAGE
EXHIBITS
Best Buy #812
LEASE
THIS LEASE, is entered into and effective as of December 20, 2004, between XXXX XXXXXXX, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 65% interest, and XXXX XXXXX, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 35% interest (collectively here after called "Landlord") and BEST BUY CO., INC., a Minnesota Corporation (hereinafter called "Tenant").
The parties mutually agree as follows:
),Landlord, for and in consideration of the rents, covenants, agreements and stipulations hereinafter mentioned, reserved and contained, to be paid, kept and performed by Xxxxxx, does hereby lease and rent unto Tenant, and Tenant hereby agrees to Lease and take upon the terms and conditions hereinafter set forth a Building containing approximately 30,259 square feet constructed by Xxxxxx and then sold to Landlord (the ''Building11 together with all other improvements situated on the hereinafter described parcel of land containing approximately 5.08 acres (the "Land") located and having a street address of 0000 X. Xxxx Xxxxxx, Xxxx, Xxxx, and legally described on Exhibit 11A11 attached hereto.
The Land and Building together constitute the "Leased Premises" hereunder. Notwithstanding the foregoing, the term ''Building" shall include all additional buildings and other improvements constructed, installed, or erected on the Land.
The Base Term of this Lease (the "Term") shall be fifteen (15) years commencing on December 20, 2004 (the "Commencement Date") and ending on December 19, 2019 unless sooner terminated pursuant to any provision hereof.
Landlord and Tenant shall also execute a Memorandum of Lease Commencement in the form set out on Exhibit "B" specifying the Commencement Date, and the Expiration Date applicable to this Lease. Said Memorandum of Lease Commencement shall be attached to and become a part of this Lease.
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Tenant hereby covenants and agrees to pay Landlord as monthly fixed rent for the Leased Premises during the Term the sums set forth below:
Annual Monthly
Years |
Rent |
Rent |
1-5 |
$414,750.00 |
$34,562.50 |
6-10 |
$427,192.50 |
$35,599.38 |
11-15 |
$440,008.28 |
$36,667.36 |
Such monthly rent shall be payable in advance and without demand on the first day of every calendar month commencing on the Commencement Date. Rent shall be prorated for any partial month at the beginning or end of the Tenn. Tenant shall pay rent to Landlord at the following address unless otherwise notified in writing by Landlord:
Xxxx Xxxxxxx, L.L.C. 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxx, Xxxx 00000 Attn: Xxxxxx X. Xxxxxxx
Taxpayer ID # 00-0000000
Tenant has constructed the Building and other improvements on the Leased Premises to plans and specifications approved by Tenant and by contractors chosen by Tenant. Tenant therefore will be familiar with the designs of the improvements and condition of the Leased Premises as of the Commencement Date, and will be presumed as of such Commencement Date to have accepted the Leased Premises in their then existing condition. To the maximum extent permitted by law, Tenant waives the implied warranty of suitability for the Leased Premises. Landlord shall cooperate in Tenant's attempt to enforce warranty and other obligations of contractors and suppliers for the original construction of the Leased Premises, but shall have no other responsibility or liability for the design, construction or condition of Leased Premises and makes no warranties with respect thereto, and Landlord shall not be required to make any repairs of any kind whatsoever during the term of this Lease, except under the provisions of Section 19 hereof. Landlord will transfer all contractor and supplier warranties in its possession to Tenant, for the Term of this Lease which transferred warranties shall revert back to Landlord upon termination of said Lease.
Tenant agrees at its expense to keep and maintain the entire Leased Premises, both Building and Land, in good order, condition and repair, including but not limited to maintenance and repair including replacement .(as necessary) of all structural or load-bearing elements, roofs, walls, foundations, heating, ventilating and air conditioning systems, windows, walls, doors, electrical systems and
. equipment, mechanical equipment: plumbing and all other components of the Building, mowing
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adjacent public sidewalks, removal of trash, maintenance of utility lines and exterior lighting on the Land. All such maintenance and repair shall keep the Leased Premises in a good state of repair and in a clean, safe, and sanitary condition and in compliance with all applicable laws, including without limitation the Americans with Disabilities Act, and insurance regulations. Tenant must make all
.repairs, corrections, improvements or alterations necessitated by age, Xxxxxx's use, the elements or required pursuant to governmental order or mandate. Tenant expressly waives the benefit of any statute now or hereinafter in effect which would otherwise afford Tenant the right to make repairs at Landlord's expense or to terminate this Lease because of Landlord's failure to keep the Leased Premises in good order, condition or repair. Any and all obligations that Landlord may incur under the operation and reciprocal easement agreement and any other agreements to which the Land may be subject as of the Commencement Date and any amendments thereto or modification thereafter shall become the sole obligation of Tenant during the initial term of the Lease and any extensions thereof.
If Tenant fails to perform its obligations under this Section 5, or under another provision of this Lease, Landlord may at its option (but shall not be required to) enter upon the Leased Premises after ten (10) days prior written notice to Tenant (except in the case of an emergency, in which case no notice shall be required), perform such obligations on Tenant's behalf and put the same in good order, condition and repair, and the cost thereof, together with interest at 15% per annum (but in no event more than the maximum rate then allowable by law) shall become due and payable as additional rental to Landlord together with Tenant's next rental installment. Except for the obligations of Landlord under Section 19 (relating to condemnation of the Leased Premises), it is intended by the parties hereto that Landlord have no obligation, in any manner whatsoever, to repair and maintain the Leased Premises or the equipment therein or any part thereof, whether s1IUctural or non-s1IUctural, all of which obligations are intended to be that of Tenant In no event shall Landlord be obligated to pay for repairs or replacement of any part of the Leased Premises.
This Lease is what is commonly called a "Net, Net, Net Lease11 it being understood that Landlord shall receive the rent set forth in Section 3 and Section 41 free and clear of any and all other impositions, taxes, liens, charges or expenses of any nature whatsoever in connection with the ownership and operation of the Leased Premises. In addition to the rent reserved by Section 3 and Section 41, Tenant shall pay to the parties respectively entitled thereto all impositions, insurance premiums, operating charges, maintenance charges, construction costs and any other charges, costs and expenses which arise or may be contemplated. All such charges, costs and expenses shall constitute additional rent,
.µid upon the failure of Tenant to pay any of such costs, charges or expenses including, without limitation, utilities pursuant tp Section 7 and taxes and assessments pursuant to Section 8, Landlord shall have the same rights and remedies as otherwise provided in this Lease for the failure of Tenant to pay rent. It is the intention of the parties except as expressly provided herein that this Lease shall not be terminable for any reason by Xxxxxx, and that Tenant shall in no event be entitled to any abatement of, or reduction in, rent payable under this Lease, except as otherwise expressly provided herein. Any present or future law to the contrary shall not alter this agreement of the parties.
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Tenant shall pay on time and hold Landlord free and harmless from all bills or assessments for light, heat, water, gas, electric, telephone, sewer rentals or charges, and any other expenses arising out of or incidental to the occupancy of said Building and Leased Premises. No full or partial utility deprivation including, but not limited to, blackout, brownout, rationing shall give rise to any abatement of rent nor give rise to any right of Tenant to terminate the Lease.
As additional rent, Xxxxxx agrees and covenants to pay directly to the proper governmental agency, on or before the date each installment becomes due and payable, an amount equal to all "Real Property Taxes" including but not limited to (i) the ad valorem or property taxes, and all other taxes including commercial rental taxes and other similar taxes levied against the Leased Premises, excepting income taxes, which become due and payable during the Term of this Lease, and (ii) all installments of general, special, ordinary or extraordinary assessments including statutory interest, if any. Landlord shall have the obligation to, if possible, (i) have the tax bills mailed directly to Tenant by the proper governmental agency; and (ii) for the last lease year of the Term hereof, furnish an apportionment between Landlord and Tenant based on the number of days of Tenant's last lease year which fall within the then current calendar year. In the event Landlord is unable to have the tax bills mailed directly to Tenant by the proper governmental authorities, Landlord shall within five (5) business days of receipt thereof forward to Tenant the tax bills. Xxxxxxxx agrees to pay any late fees, charges or penalties incurred due to Xxxxxxxx's failure to forward to Tenant the tax bills within the time period provided herein. Tenant may, in good faith and in a lawful manner and upon giving notice to Landlord of its intention so to do, contest in Landlord's name any tax assessment or charge against the Leased Premises, but all costs and expenses incidental to such contest shall be paid by Xxxxxx, and in case of an adjudication adverse to Tenant, then Tenant shall promptly pay such tax, assessment or charge including penalties or late charges, if any. Tenant shall indemnify and save Landlord harmless against any loss or damage arising from such contest and shall, if necessary to prevent a sale or other loss or damage to Landlord, pay such tax, assessment or charge under protest and take such other steps as may be necessary to prevent any sale or loss. Xxxxxx agrees; if requested by Xxxxxxxx's lender, to pay its estimated share of real estate taxes into a monthly escrow account.
Tenant shall promptly, furnish Landlord with satisfactory evidence that all taxes have been paid. If Tenant shall fail to pay any such taxes, Landlord shall have the right to pay the same, in which case Tenant shall repay such amount to Landlord with Tenant's next rent installment together with interest at the rate of 15% per annum but in no event more than the maximum rate then allowable by law. As used herein, the term "Real Property Tax" shall include any form of real estate tax or assessment, general, special, ordinary or extraordinary, and any license fees, commercial rental tax, including without limitation, sales, use, gross receipts or value added taxes levied on the rent payable hereunder, improvement bond or other bonds, including statutory interest, levy or tax (other than inheritance, personal income or estate taxes) imposed on the Leased Premises by any authority having the direct or indirect power to tax, including any city, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other improvement district thereof, as against any legal or equitable interest of Landlord in the Leased Premises or in the real property of which the Leased Premises are a part, as against Landlord's right to rent or other income therefrom, and as against Landlord's business
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of leasing the Leased Premises. The term "Real Property Tax" shall also include any tax, fee, levy, assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy, assessment or charge included within the definition of "Real Property Tax", or (ii) the nature of which was previously included within the definition of "Real Property Tax", or (iii) which is imposed as a result of a transfer, either partial or total, of Landlord's interest in the Leased Premises or which is added to a tax or charge included within the definition of "Real Property Tax" by reason of such transfer, or (iv) which is imposed by reason of this transaction, any modifications or changes hereto, or any transfers hereof. Tenant shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment and all other personal property of Tenant contained in the Leased Premises or elsewhere. When possible, Tenant shall cause said trade fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Landlord. If any of Tenant's personal property shall be assessed with Landlord's real property, Tenant shall pay the taxes attributable to Tenant within ten (10) days after receipt of a written statement setting forth the taxes applicable to Xxxxxx's property.
Any structural alterations or improvements or any non-structural improvements or alterations costing more than $500,000 shall require Landlord's consent, which consent shall not be unreasonably withheld. Xxxxxxxx's consent shall be automatically granted if Landlord does not respond to Xxxxxx's request within 15 days after receipt by Landlord of notice and submission of preliminary plans and specifications from Tenant. Subject to the preceding sentence, during the full Term of this Lease, Tenant shall have the right, at any time during the Tenn, and from time to time, at its own cost and sole expense and liability to place or install within the Leased Premises, such non-structural Leasehold improvements as it shall desire provided that such improvements do not diminish the market value of the Premises. Unless expressly released by Landlord in writing, all such improvements shall be and remain, at the time of expiration or other termination of this Lease, the property of Landlord without payment or offset unless such improvements are not permanently attached to the Leased Premises. No such installation or construction by Tenant shall violate any lawful rule or regulation, plat or zoning construction or other law, ordinance or regulation applicable thereto, or any Covenant Documents, and all alterations and improvements shall be done and performed in good and workmanlike manner. All costs of any such improvements shall be paid by Tenant and Tenant shall allow no liens for labor or materials to attach to the Leased Premises by virtue thereof. Tenant shall submit drawings and specifications of all alterations and improvements .to Landlord prior to commencement of work and as- built plans promptly after completion thereof. Tenant shall give Landlord not less than ten (10) days notice prior to the commencement of any work in, on or about the Leased Premises and Landlord shall have the right to post notices of non-responsibility in or on the Leased Premises as provided by law. Landlord may require that Tenant remove any or all alterations, improvements or additions made by Tenant to the Leased Premises at the expiration of the Term and restore the Leased Premises to its prior condition. In no event will any alteration or improvement reduce the square footage of the Building located on the Leased Premises.
Any alterations, improvements and additions in, or about the Leased Premises that Tenant desires to make and which require the consent of Landlord shall be presented to Landlord in written form, with proposed detailed plans. If Landlord shall consent, the consent shall be deemed conditioned upon Tenant acquiring a permit to do so from appropriate governmental agencies, the furnishing of a copy
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thereof to Landlord prior to the commencement of the work and the compliance by Tenant of all conditions of said permit in a prompt and expeditious manner. Tenant shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Tenant at, or for use in the Leased Premises, which claims are or may be secured by any mechanic's or materialmen's lien against the Leased Premises or any interest therein. If Tenant shall, in good faith, contest the validity of any such lien, claim or demand, then Tenant shall, at its sole expense defend itself and Landlord against the same and shall post any necessary bond or obtain a title insurance indemnity over, if reasonably required by Landlord, and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against Landlord or the Leased Premises. In addition, Landlord may require Tenant to pay Landlord's attorneys' fees and costs in participating in such action if Landlord shall decide it is in its best interest to do so.
Tenant agrees to provide and keep in force during the Term of this Lease and at its own cost and expense the following insurance coverage from an insurance company or companies authorized to do business in the State of lowa:
$5,000,000 for injury or death in any one accident or occurrence per location including property damage, insuring Landlord and Tenant, and with a cross-liability endorsement covering claims by an insured against another insured. Provided, however, regardless of the limits specified herein, in the event that any other binding agreement affecting the Leased Premises, i.e. Covenant Documents as listed on the attached Exhibit "C", require higher limits, Tenant shall comply with the higher limits therein specified. The public liability and property damage insurance described in this Section 10(b) shall be primary insurance and any insurance maintained by Landlord shall be excess and noncontributing.
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anything in or about the Leased Premises which will impair or invalidate the obligation of any policy of insurance on or in reference to the Leased Premises or the Building.. Landlord shall have the right to require that the amount or types of insurance coverages required of Tenant hereunder be adjusted from time to time to reflect insurance customarily required for similar properties in the Ames, Iowa area. Insurance coverages shall be written by an insurance company or companies licensed to do business in the State of Iowa, with a Best's rating of at least "A-Vll".
If the Leased Premises are totally or partially damaged or destroyed by storm, fire, lightning, earthquake, or from any other cause whatsoever, during the Term of this Lease whether or not such damage or destruction is covered by any insurance required to be maintained under Section 10 hereof, then Tenant shall repair, restore and rebuild the Leased Premises in accordance with applicable building and zoning codes at the time of rebuilding to substantially the same condition immediately prior to such damage or destruction and this Lease shall remain in full force and effect, provided, however, that Tenant shall have the right, with the consent of Landlord (which shall not be unreasonably withheld) to replace the Leased Premises with a different structure so long as (a) the value of the Leased Premises with such structure is no less than the value of the Leased Premises immediately prior to the date of casualty and no less than the square footage shown in Section 1 of this Lease, and (b) the new structure can be built and occupied under the then applicable laws, codes, ordinances, and zoning restrictions. Such repair, restoration and rebuilding (all of which are herein called "repair") shall be commenced within a reasonable time however no more than 30 days after such damage or destruction has occurred and permits necessary to authorize such rebuilding have been issued, and shall be diligently pursued to completion.
a Insurance Proceeds. The proceeds of any insurance maintained under Section 10 hereof shall be made available to Tenant for payment of costs and expense of repair, provided however, that such proceeds may be made available to Tenant subject to reasonable conditions, including, but not limited to architects' certification of cost, retention of percentage of such proceeds pending recordation of a notice of completion and a lien and completion bond (or payment and performance bond) to insure against mechanic's or materialmen's liens arising out of the repair and to insure completion of the repair, all at the expense of Tenant. In the event the insurance proceeds are insufficient to cover the cost of repair, then any amounts required over the amount of the insurance proceeds received that are required to complete said repair shall be paid by Tenant. •
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property taxes, by reason of such damage or destruction unless the Lease is terminated by virtue of another provision of this Lease.
Except only as provided in Section 19, Tenant's obligations to pay rent and to perform all of the other covenants and agreements which Tenant is bound to perform under the terms of this Lease shall not terminate, xxxxx or be diminished during any period that the Leased Premises or any part thereof are untenantable regardless of the cause of such untenantability.
Tenant shall use the Leased Premises as a general business, or as a store for other retail products and supplies, or, with the consent of Landlord (which shall not be unreasonably withheld) for any other lawful purpose, and, in the use and occupancy of the Leased Premises, and in the conduct of its business and activities, shall at its own cost and expense secure and maintain all necessary licenses and permits required for the conduct of its business. Tenant shall not use the Leased Premises or permit anything to be done in or about the Leased Premises which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall at its sole cost and expense comply with all laws, statutes, ordinances and governmental rules, regulations or requirements of any board of fire underwriters (including all modifications and improvements required thereby) now in force or which may hereafter be in force relating to or affecting the condition, use or occupancy of the Leased Premises. Tenant shall observe all plat and deed restrictions of record. Without limiting the generality of the foregoing, Tenant will not generate, store, bury, discharge or release on or from the Leased Premises any hazardous substances or waste in a manner which would give rise to penalty or liability under the Resources Conservation Recovery Act 42 U.S.C. 6901 et seq., or any other federal, state or local law.
Upon 15 days notice, Tenant shall provide Landlord with copies of all documents and information evidencing Tenant's compliance with any laws, ordinances, orders, rules and regulations requested by Landlord. Tenant shall notify Landlord in writing immediately of any threatened or actual notice, citation, warning or report regarding Tenant's alleged failure to cause the Leased Premises to comply with all laws; ordinances, orders, rules and regulations.
Except as to liens arising as a result of work performed by or at the direction of Landlord, which shall be the sole responsibility of Landlord; Xxxxxx agrees that during the Term hereof it shall not do or suffer any waste to the Land, Building or Leased Premises, or cause, suffer or permit any liens to attach to or to exist against the Land, Building or Leased Premises by reason of any act or omission of Tenant or person claiming through Tenant or by reason of its failure to perform any act required of it
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hereunder. Xxxxxx agrees to save and hold harmless Landlord from and against any such lien(s) or claims of lien(s). Tenant shall not permit the Leased Premises to be used for illegal purposes. Xxxxxx agrees that Xxxxxx's use of the Leased Premises and any assignee and/or sublessee of Tenant's use of the Leased Premises are limited by and subject to the "Covenant Documents" as more fully set forth on the attached Exhibit "C". Provided, however, Tenant shall not be required to pay or discharge any lien against the Leased Premises so long as Tenant has given Landlord notice of its intent to contest such lien and Tenant is in good faith contesting the validity or amount thereof and has given to Landlord such security as Landlord has reasonably requested to assure payment of such lien and to prevent the sale, foreclosure or forfeiture of the Land, Building or Leased Premises by reason of non- payment. In the event that any lien does so attach, and is not released within thirty (30) days after written notice to Tenant thereof or if Tenant has not indemnified Landlord against such lien within said thirty (30) day period, Landlord, in its sole discretion, may pay and discharge the same and relieve the Leased Premises therefrom, and Xxxxxx agrees to repay and reimburse Landlord upon demand for the amount so paid by Landlord. The existence of any mechanics', laborer's, materialmen's, supplier's or vendor's lien, or any right in respect thereof, shall not constitute a violation of this paragraph if payment is not yet due and payable upon the contract or for the goods or services in respect of which any such lien has arisen. On final determination of the lien or claim of lien Tenant will immediately pay any judgment rendered, and all costs and charges, and shall cause the lien to be released or satisfied. Tenant will not use or permit the use of the Land, Building or Leased Premises in any manner which would result or would with the passage of time result in the creation of any easement or prescriptive right. Tenant shall not use or occupy the Leased Premises, or knowingly permit them to be used or occupied, contrary to any statute, rule, order, ordinance, requirement, regulation or certificate of occupancy affecting the same, or which would make void or voidable any insurance then in force with respect thereto or which would make it impossible to obtain fire or other insurance thereon required to be furnished hereunder at Tenant's expense, or which would cause structural injury to the improvements or cause the value or usefulness of the Leased Premises, or any portion thereof, to diminish (reasonable wear and tear excepted), or which would constitute a public or private nuisance or waste, and Tenant agrees that it will promptly, upon discovery of any such use, take all necessary steps to compel the discontinuance of such use.
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Tenant acknowledges, represents, and warrants to Landlord and Xxxxxxxx's successors and assigns that:
·and ground water condition, and no notice from any governmental body has been served upon or delivered to Tenant claiming any such violation;
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Leased Premises, or transported to or from the Leased Premises, any Hazardous Materials. Tenant shall not conduct, nor permit, any of the foregoing activities to occur on the Leased Premises during the term. The term "Hazardous Materials" as used in
this Lease shall include, but not be limited to, any flammable materials, explosives, radioactive materials, hazardous or toxic substances which are or become regulated by any local governmental authority, the State of Maryland or the United States Government or which would require removal, treatment or other remedial action. The term "Hazardous Materials" includes, without limitation, any material or substance which is (i) listed or defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste,11 or "hazardous substance", or the like, under any municipal, state or federal law, code or other regulation, (ii) defined as "hazardous substances," "hazardous materials," or "toxic substances" in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. § 9601 et. seq., The Hazardous Materials Transportation Act 49 U.S.C. § 1801, et. seq. and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq.;
(iii) petroleum; (iv) asbestos; (v) polychlorinated biphenyl; (vi) designated as a "hazardous substance" pursuant to Section 3.11 of the Federal Water Pollution Control Act (33 U.S.C. § 1317); (vii) any substance which is subject to the reporting requirements of the Federal Emergency Planning and Community Right-to-Know Act,
(viii) defined as a "hazardous substance" pursuant to the Toxic Substances Control Act, 15 U.S.C. § 2601; or (ix) any substance which contaminates soil or ground water and causes degradation of the soil and/or water to the extent that mitigation methods are needed to restore the soil or water to its natural state;
a Performance at Tenant's Sole Expense. If Tenant should default in the performance of any covenant on its part to be performed by virtue of any provision of this Lease, Landlord may, after ten (10) days' notice in the case of defaults in the payment of rent, additional rent or other monetary defaults, or after thirty (30) days' notice in the case of non-m0netary defaults (or, in the case of emergencies, after reasonable attempts at prior notice), perform the same for the account of Tenant, 'and Tenant hereby authorizes Landlord to come upon the Leased Premises for such purposes and while on the Leased Premises to do things reasonably necessary to accomplish the correction of such default. If Landlord, at any time, is compelled to pay or elects to pay any sum of money by reason of the failure of Tenant, after ten (10) days' notice, to comply with
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any provision of this Lease, or if Landlord is compelled to incur any expense, including reasonable attorneys' fees and costs, in instituting, prosecuting or defending any action or proceeding instituted by reason of any default of Tenant hereunder, the sum or sums so paid by Landlord with all interest costs at 15% per annum and damages including any loss of rent, shall be deemed to be additional rent hereunder.
All covenants and agreements to be performed by Tenant under any of the terms of this Lease shall be performed by Tenant at Tenant's sole expense and without abatement of rent. If Tenant shall fail to observe and perform any covenant, condition, provision or agreement contained in this Lease or shall fail to perform any other act required to be performed by Tenant, Landlord may, upon notice to Tenant, without obligation, and without waiving or releasing Tenant from any default or obligations of Tenant, make any such payment or perform any such obligation on Tenant's part to be performed. All sums so paid by Xxxxxxxx and all costs incurred by Landlord, including reasonable attorneys' fees and costs, shall be payable to Landlord on demand together with interest thereon in a per annum amount equal to eighteen percent (18%) per annum but in no event greater than the maximum interest rate permitted by law, and Tenant covenants to pay any such sums, and Landlord shall have (in addition to any other right or remedy hereunder) the same rights and remedies in the event of Tenant's non-payment thereof as in the case of default by Tenant in the payment of rent.
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So long as there remains of record a mortgage or mortgages of Landlord's interest in the property, and Xxxxxx has been given written notice of the identity and address of such mortgagee(s), Tenant shall give a duplicate notice of each notice sent to Landlord to such mortgagee. Failure to give notice to mortgagee shall not invalidate Xxxxxx's notice to Landlord or expose Tenant to liability to mortgagee. Tenant agrees that if in any notice to Landlord the performance of some act is required or compliance with some provision hereof is requested and Landlord does not, within the allotted time, perform such act or comply with such provision, then mortgagee shall have an additional thirty (30) days after expiration of Landlord's cure period in which to perform such act or comply with such provision for and on behalf of Landlord, and Tenant shall have no right to take action otherwise permitted it, or to terminate this Lease, if the mortgagee shall perform and comply within said thirty (30) days. In the event the act or thing to be complied with within said thirty (30) day period cannot by its nature reasonably be completed within such period, mortgagee shall be deemed to have complied therewith in the event it commenced the performance of compliance within said thirty (30) day period and thereafter completes the same with due diligence. The granting to the mortgagee of additional time in which to comply shall not be deemed in any manner to release or relieve Landlord from the obligations of Landlord under this Lease. The said mortgagee is hereby authorized to enter upon the Leased Premises following reasonable notice to Tenant and while thereon to do anything necessary to correct such default. For purposes of this Lease any reference to a mortgage or mortgages shall include references to deeds of trust and beneficiaries thereof.
Provided that Tenant shall remain liable under all of the terms and conditions of this Lease for the full remainder of the Term, and provided further that any assignee or sublessee shall consent to use the Leased Premises for retail purposes only and said assignee's or sublessee's use does not increase the risk of Hazardous Materials being used, generated, manufactured, stored, treated, released or disposed of on, under or about the Leased Premises or transported to or from the Leased Premises, Tenant shall have the absolute right to assign or sublet the Leased Premises, in whole or in part, without the consent of Landlord. So long as Tenant is not publicly traded, a change of ownership of 51% or more of Tenant shall be deemed an assignment of this Lease for purposes of this paragraph. Transfers in connection with a public offering shall not be deemed an assignment of Lease. If the stock of Tenant becomes publicly held, there shall be no restriction on subletting and assignment, except for a use not approved by Landlord, whose approval will not be denied or delayed unreasonably, but in no event shall Tenant be released of any obligation hereunder. Tenant shall have the right to assign this Lease, or to sublet the Leased Premises to any of Tenant's affiliates, subsidiaries or parent corporation(s). A change of ownership of 51% or more of the stock of Tenant shall not be considered an assignment if it occurs in connection with a bona fide merger or acquisition or change in the state of incorporation of Tenant.
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and request from Landlord and shall pay such rents and other charges to Landlord without any obligation or right to inquire as to whether such default exists and notwithstanding any notice from or claim from Tenant to the contrary, Tenant shall have no right or claim against said sublessee or, until the default has been cured, against Landlord, for any such rents and other charges so paid by sublessee to Landlord.
In the event all of the Leased Premises, or such portion thereof as will make the Leased Premises unusable for the purposes of Tenant, be condemned by any legally constituted authority for any public use or purpose, then in either of said events, the Term hereby granted shall cease, at 1he option of either Landlord or Tenant on thirty (30) days' written notice from the time when possession thereof is taken by said public authorities, and rent shall be accounted for as between Landlord and Tenant as of that-date. Said termination, however shall be without prejudice to the rights of either Landlord or Tenant, or both, to recover compensation and damage caused by condemnation from the condemnor, except: (i) Tenant shall have no rights for the value of its leasehold; and (ii) neither Tenant nor Landlord shall have any rights in any separate award made to the other party by the condemnor. In the
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event less than all of the Leased Premises is taken or condemned for a public or quasi-public use and the portion of the Leased Premises which is not taken may be reasonably suitable for the purposes of Tenant by repair or restoration, this Lease will not terminate. Landlord shall, in such event, promptly commence and diligently complete the repair and restoration of the Leased Premises so that upon completion the Building will constitute a complete architectural unit with an appearance, character and commercial value as nearly as possible equal to the value of the Building immediately prior to the taking, provided however, Landlord shall have no obligation to expend more on reconstruction than the net amount of a condemnation award or the net amount received by way of settlement in lieu thereof or make a repair or restoration if the estimated cost therefore would reduce Landlord's award. There shall be an abatement of annual rent after such taking which shall be equal to the greater of the
(i) the percentage of the total area of the Leased Premises after the taking as relates to the total area of the Leased Premises immediately prior to said taking thereunder, to the termination of this Lease, or
(ii) the percentage of total area of the Building after the taking as relates to the total area of the Building immediately prior to said taking thereunder, to the termination of this Lease.
Each party ("Indemnifying Party") agrees to indemnify and save harmless the other ("Indemnified Party") against and from any and all claims by and on behalf of any persons, firms or corporations, arising from the conduct or management of, from any work or thing whatsoever done by or on behalf of the Indemnifying Party (which shall include, with respect to Xxxxxx's indemnity hereunder, Xxxxxx's sublessees and assigns) in or about, its activities upon or (in the case of Tenant) occupancy of, the Leased Premises (including any portion thereof occupied by any sublessee or assignee of Tenant) during the Tenn of this Lease, and will further indemnify and save the Indemnified Party harmless against and from any and all claims arising from any breach or default on the part of the Indemnifying Party in the performance of any covenant or agreement on the part of such Indemnifying Party to be performed pursuant to the terms of this Lease, or from any violation or failure to comply with any law, ordinance or regulation, or from any act or negligence of such Indemnifying Party, or any of its agents, contractors, servants, employees, licensees, or invitees or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation, occurring during the Term of this Lease, in or about the Leased Premises, or upon or under the sidewalks and the land adjacent thereto, and from and against all costs, reasonable and necessary counsel fees, expenses and liabilities incurred in or about any such claim or action or proceeding brought thereon, and in case any action or proceeding is brought against the Indemnified Party by reason of any such claim, the Indemnifying Party upon notice from the Indemnified Party covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to the Indemnified Party. Landlord's liability is limited to Landlord's interest in the Leased Premises and will be cancelled automatically upon any failure by Tenant to maintain in full force and effect all insurance required to be furnished by Tenant under the provisions of this Lease.
Tenant agrees to permit Landlord and its agents, and any mortgagee of the Leased Premises, to inspect the Leased Premises at all reasonable times, and to come upon the Leased Premises if necessary to perform any act which Xxxxxx has failed to perform, as provided elsewhere in this Lease. Tenant shall be given reasonable prior notice of any such entry (except in the case of emergency) and any such entry shall be undertaken in a manner that reasonably minimizes interference with Xxxxxx's use and
20
operations and Tenant shall have the right to have one or more of its employees present during such inspection.
Tenant shall be in default under this Lease if one or more of the following events (herein called "Defaults") shall happen and be continuing, namely:
Upon the occurrence of any Default by Tenant, Landlord, at its option, may have one or more of the following remedies, in addition to all of the rights and remedies provided at law or in equity.
21
22
Landlord hereunder other than rent due hereunder from Tenant to Landlord, second, to the payment of any reasonable cost of such reletting, including, without limitation, refurbishing costs and leasing commissions, and third, to the payment of rent due and unpaid hereunder, and Tenant shall satisfy and pay any deficiency upon demand therefor from time to time. Any such entry into the possession of the Leased Premises by Landlord under this Section 23 shall be without liability or responsibility for damages to Tenant and shall not be in lieu of or in substitution for any other rights of Landlord hereunder at law or in equity. Xxxxxx further agrees that Landlord may file suit to recover any sums due Landlord under the terms of this Section 23 and that no recovery of any portion due Landlord hereunder shall be any defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. Reletting of the Leased Premises shall not be construed as an election on the part of Landlord to terminate this Lease and notwithstanding any such reletting without termination, Landlord may at any xx.xx thereafter elect to terminate this Lease for such previous breach.
Landlord shall not be in default hereunder and Tenant shall not have any remedy or cause of action unless Landlord fails to perform any of its obligations hereunder within thirty (30) days after written notice from Tenant specifying such failure (unless such performance will due to the nature of the obligation, require a period of time in excess of thirty (30) days, then after such period of time as is reasonably necessary). If Landlord is in default hereunder, Tenant's exclusive remedy shall be an action for damages. All obligations of Landlord hereunder shall be construed as covenants not conditions.
23
Upon termination of this Lease for any reason, Tenant covenants and agrees to remove all of its personal property, including fixtures and equipment installed by Tenant upon the Leased Premises which are not permanently attached, and Tenant shall repair any damage caused by the removal thereof, and shall leave the Leased Premises in as good repair and clean condition as at the commencement of this Lease, normal and reasonable wear and tear and usage excepted. Tenant shall either (i) remove at Tenant's sole expense, any title encumbrances relating to the Leased Premises caused by Xxxxxx's interest in the Lease, or (ii) provide Landlord with a bond for the total amount of said title encumbrance.
All fixtures (other than trade fixtures and equipment not for the operation of the Building), improvements, alterations and equipment for the operation of the Building now or hereafter permanently attached to the Leased Premises shall be and remain Landlord's property and shall not be removed from the Leased Premises without Xxxxxxxx's prior written consent. All movable fixtures and equipment are and shall remain Tenant's property, and Landlord agrees to sign any and all waivers reasonably required by Tenant in order to complete any fixture financing arrangements relative to said movable fixtures and equipment. Landlord shall have no interest in any movable fixtures and equipment owned by Tenant, or installed in or upon the Leased Premises solely at the cost and expense of Tenant. In the event said property is thereafter removed from the Leased Premises by Tenant, or any party holding a lien on, a security interest in, or a reversionary interest in the property, or by any agent or representative thereof or any purchaser thereof, pursuant to the exercise or enforcement of any rights incident to the interests created, Tenant or party holding such interest shall repair any damage necessitated by the removal of such property as may be necessary to restore the Leased Premises to good condition and repair, excepting only reasonable wear and tear, without any cost or expense to Landlord.
Subject to Section 18, the obligations and responsibilities of the parties to this Lease shall be binding upon, and the rights and benefits shall inure to the successors and assigns of the parties hereto; but the liabilities of any successor to the interest of Landlord hereunder shall be limited to the performance of those obligations which arise and accrue during the period of ownership of the Leased Premises by any such successor. Landlord may at any time transfer its interest in this Lease and underlying fee, but no transfer or sale of Landlord's interest hereunder shall be binding upon Tenant until Xxxxxx has received a true, correct and complete copy of the original instrument assigning Xxxxxxxx's interest in this Lease or a certified and conformed copy of any deed conveying Landlord's fee interest in the Leased Premises. Any such instrument shall evidence the fact that the assignee or transferee thereunder has assumed all of Landlord's obligations under this Lease and acquired sufficient title to the Leased Premises to enable it to perform such obligations. Upon completion of said assignment or transfer in conformance with the requirements of this Section, Landlord shall have no further liability under this Lease.
24
Any notice or consent required to be given by or on behalf of either party to the other shall be in writing and given by mailing such notice or consent by either (i) one (1) business day after sending by an overnight courier service, or (ii) two (2) business days after sending by registered or certified mail, return receipt request addressed to the other party as follows:
Xxxx Xxxxxxx, L.L.C. 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx with a copy to:
Xxxxxxx X. Xxxxx Xxxxx Law Office 0000 Xxxxxxxxx Xxxxxx
Des Moines, Iowa 50312
Best Buy Co., Inc.
0000 Xxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000
Attention: Legal Department - Real Estate with a copy to:
Xxxxxx, Xxxxxx, Xxxxxx & Xxxxxx 0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx Xxxxx Xxxxxxxxxxx, XX 00000-2015 Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
or to such other addresses as the parties may designate in writing. Any notice or consent given hereunder by either party shall be deemed effective when mailed as aforesaid, but the time period in which to respond to any notice or consent shall commence to run on the date on which such notice or consent is actually received by the addressee. Refusal to accept delivery shall be deemed receipt thereof.
25
It is expressly agreed between Landlord and Tenant that there is no verbal understanding or agreement which in any way changes the terms, covenants and conditions herein set forth, and that no modification of this Lease and no waiver of any of its terms and conditions shall be effective unless made in writing and duly executed by the authorized officers of the necessary parties or party and consented to by Landlord's mortgagee, if any.
Landlord and Xxxxxx hereby agree that all prior or contemporaneous oral understandings, agreements or negotiations relative to the leasing of the Leased Premises are merged into this Lease.
Toe failure of Landlord or Tenant to insist, in one or more instances, upon the strict performance by Tenant or Landlord of any of the provisions of this Lease shall not be construed as a waiver of any right or remedy available for any future breach of such provisions. Receipt by Landlord of rent with knowledge of the breach of any provisions hereof shall not be deemed a waiver of any right or remedy available for such breach.
Tenant warrants to and for the benefit of Landlord and any mortgagee of the Leased Premises that as of the date of execution of this Lease it neither has nor claims any defense to this Lease nor any offset against the rentals payable or other obligations required of Tenant hereunder, and Tenant warrants that it has not paid any rental in advance for a period of more than one (1) month and covenants that it will not, without such mortgagee's written consent, at any time during the term hereof prepay any rental for a period longer than one month.
Tenant shall at any time and from time to time upon not less than ten (10) days prior written notice by Xxxxxxxx, execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), the dates to which the rent and any other charges have been paid in advance, if any, stating whether or not to the best knowledge of Tenant, Landlord is in default in tlie performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which Tenant may have knowledge and containing any other information and certifications which reasonably may be requested by Landlord or the older of any Underlying Mortgages. Any such statement delivered pursuant to this Section 30 may be relied upon by a prospective purchaser of the fee of the Property or any mortgagee, ground lessor or other like encumbrancer thereof, or any assignee of any such encumbrancer upon the Building or the Leased Premises.
Landlord may place signs at the Leased Premises "For Rent" or "For Sale" ninety (90) days before the termination of this Lease. Landlord may enter the premises at reasonable hours and upon reasonable
26
notice to exhibit same to prospective purchasers, tenants and mortgagees and to inspect or make rep8ll'S.
This Lease shall create the relationship of landlord and tenant between Landlord and Tenant.
Time is of the essence of this Lease.
"Landlord" as used in this Lease shall include the original Landlord hereunder, its successors, and if this Lease shall be validly assigned, shall also include Landlord's assignees. "Tenant" shall include the original Tenant hereunder, its successors, and if this Lease shall be validly assigned or sublet, shall include also Tenant's assignee or sublessee, as to premises covered by such assignment or sublease. "Landlord" and "Tenant" include male and female, singular and plural, corporation, partnership or individual, as may be appropriate for the particular parties.
Landlord shall have the right to place trust deeds or mortgages against the Leased Premises as security for a loan obtained or to be obtained by Landlord.
Tenant agrees to execute such documents as may be reasonably required by the lending agency making any such existing or subsequent loans, including attornment agreements, subordination agreements and estoppel certificates, if requested; provided that if a mortgage or trust deed is to be placed on the Leased Premises, Landlord and Landlord's mortgagee shall execute a non-disturbance agreement in a form reasonably acceptable to Tenant.
If Xxxxxxxx’s interest in the Leased Premises is sold or conveyed upon the exercise of any remedy provided. for in any Underlying Mortgages, or otherwise by operation of law: (a) this Lease will not be affected in any way, and Tenant will attorn and recognize the new owner as Tenant's landlord under this Lease and Tenant will confirm such attornment in writing within ten (10) days after request; and
(b) the new owner shall not be (i) liable for any act or omission of Landlord under this Lease occurring prior to such sale or conveyance, or (ii) subject to any offset, abatement or reduction of rent because of any default of Landlord under this Lease occurring prior to such sale or conveyance, or (iii) not be subject to any subsequent amendments or modifications of this Lease made without Lender's prior written consent that would amend or modify the rents or term of this Lease.
This Lease is subject and subordinate to all mortgages, trust deeds, ground Leases or other encumbrances which may now affect the Leased Premises (the "Underlying Mortgages") and to all renewals, modifications, consolidations, replacements and extensions of any such Underlying Mortgages provided that the holder of such Underlying Mortgage and Tenant shall execute a non- disturbance agreement in a form reasonably acceptable to Tenant and Landlord prior to the date such
27
Underlying Mortgage is recorded as a lien against the Leased Premises.
(i) Reciprocal Easement Agreement and Operating Agreement by Best Buy Stores,
L.P. dated October 14, 2002, and recorded October 24, 2002, as Instrument No. 02-
16733.
Landlord hereby assigns to Tenant and Xxxxxx hereby agrees to assume, for the Term of this Lease (including any extensions thereto) all of the rights and obligations of Landlord under the terms, covenants, provisions and indemnifications of the Declaration. Landlord shall assist Xxxxxx, at no cost to Landlord and upon request by Xxxxxx, to enforce the terms and provisions of the Declaration. Notwithstanding the foregoing, Landlord may amend the Declaration without Tenant's consent so long as any such amendment or amendments only affect the Leased Premises after the term of this Lease has expired (including any extensions thereto) or has terminated as provided herein.
In all matters referred to in this Lease, where. Xxxxxxxx's consent or approval is required, Xxxxxxxx agrees that Landlord will not unreasonably withhold Xxxxxxxx's consent or approval, except where this Lease indicates that Landlord may act in its discretion.
If Landlord retains the services of attorneys and successfully recovers possession of the Leased Premises, or successfully recovers any sum due but not paid after proper notice has been given by Landlord prior to any suit being filed, then all such costs and expenses, including reasonable attorneys' fees and attorney's costs, incurred by Landlord shall be paid by Xxxxxx. If any action, arbitration or proceeding (including any appeal thereof) is brought by Landlord or Tenant (whether or not such action is prosecuted to judgment) to enforce its respective rights under this Lease or to enforce a judgment ("Action"), (i) the unsuccessful party therein shall pay all costs incurred by the prevailing party therein, including reasonable attorneys' fees and costs, and (ii) as a separate right, severable from any other rights set forth in this Lease, the prevailing party therein shall be entitled to recover its reasonable attorneys' fees and costs incurred in enforcing any judgment against the unsuccessful party therein, which right to recover such post-judgment attorneys' fees and costs shall be included in any
28
such judgment. The right to recover post-judgment attorneys' fees shall (i) not be deemed waived if not included in any judgment, (ii) survive the final judgment in any Action, and (iii) not be deemed merged into such judgment. The rights and obligations of the parties under this Section 38 shall survive the termination of this Lease.
Landlord expressly covenants and agrees that as of the Commencement Date of the Term of this Lease, it will be the owner of the fee simple title to the Land and Building and other improvements subject to the Covenant Documents as set forth on the attached Exhibit "C". Landlord further covenants that Tenant, on paying the monthly rental and observing and performing all other terms and conditions contained in this Lease, shall have quiet and peaceful possession of the Leased Premises for the full Term, or extensions thereof subject to the provisions of this Lease.
Within ninety (90) days of the end of each of Tenant's fiscal years during the Term of this Lease (including the optional renewal term, if exercised) Tenant shall furnish to Landlord, at no cost to Landlord, a copy of the audited financial statements for Tenant's fiscal year just ended. Tenant acknowledges that this undertaking is of substantial value to Landlord because Landlord's rights to such financial statements may affect the availability or cost of Landlord's financing.
Provided that Tenant is not in Default and the property is being occupied, both when exercising its option to extend and at the commencement of the renewal Term, Tenant shall have the option to extend the Term of this Lease for four (4) successive additional renewal terms of five (5) years each commencing at the expiration date of the original Term or prior renewal Term hereof (as the case may be) on the same terms and conditions as the original Term except that the annual rent for each and every Lease Year during said optional renewal terms shall be as follows:
For the first optional renewal Term:
29
Years 16-20
30
Annual Rent
$453,208.52
31
Monthly Rent
$37,767.38
32
For the second optional renewal Term:
33
Years 21-25
34
Annual Rent
$466,804.78
35
Monthly Rent
$38,900.40
36
For the third optional renewal Term:
Annual Monthly
37
Years
26-30
38
Rent
$480,808.92
39
Rent
$40,067.41
40
For the fourth optional renewal Term:
41
Years
31-35
42
Annual Rent
$495,233.19
43
Monthly Rent
$41,269.43
44
Tenant shall give Landlord written notice of its exercise of the option for the first renewal Term not less than one hundred eighty (180) days before the expiration date of the original Term.
Tenant shall give Landlord written notice of its exercise of the option for the second or third or fourth renewal Term not less than one hundred eighty (180) days before the expiration date of the then renewed Tenn, as the case may be.
This Lease shall be performed, construed and enforced in accordance with the laws of the State of Iowa.
The headings used in this Lease are for convenience only and shall not have any bearing or meaning with respect to the content or context of this instrument.
Tenant shall have no right to retain possession of the Leased Premises beyond the expiration or earlier termination of the Lease.
If Tenant holds over after the expiration of the Term, with or without the express or implied consent of Landlord, such tenancy shall be from month-to-month only, and not a renewal hereof or an extension for any further Term, and such month-to-month tenancy shall be subject to each and every term, covenant and agreement contained herein; provided, however, that Tenant shall pay as rent during any holding over period, an amount equal to one hundred fifty percent (150%) of the rent payable immediately preceding the expiration of the Term. Nothing in this Section 44 shall be construed as a consent by Landlord to any holding over by Xxxxxx and Landlord expressly reserves the right to require Tenant to surrender possession of the Leased Premises upon the expiration of the Term or upon the earlier termination hereof and to assert any remedy in law or equity to evict Tenant and/or collect damages in connection with such holding over.
All rights, powers and privileges conferred hereunder upon the parties shall be cumulative, but not restricted to those given by law.
45
Either party may, at its sole cost, prepare and record a Memorandum of Lease at the location where the deed of title to the Leased Premises is of record. The other party shall join in executing such Memorandum of Lease on request.
If Tenant is a corporation, then the persons executing this Lease on behalf of Tenant represent and warrant to Landlord that they are duly authorized to execute and deliver this Lease on Tenant's behalf in accordance with a duly adopted resolution of the Board of Directors of Tenant. Landlord warrants to Tenant that the person or persons executing this Lease on behalf of Landlord are duly authorized to execute and deliver this Lease on Xxxxxxxx's behalf
If any term or provision of this Lease shall be held invalid or unenforceable to any extent, the remaining terms, conditions and covenants of this Lease shall not be affected thereby and each of said terms, covenants and conditions shall be valid and enforceable to the fullest extent permitted by law.
Each provision of this Lease performable by Landlord and/or Tenant shall be deemed both a covenant and a condition.
Landlord and Tenant hereby acknowledge that the Leased Premises are subject to the Covenant Documents as set forth on the attached Exhibit "C". Landlord hereby assigns to Tenant and Xxxxxx hereby agrees to assume, for the Term of this Lease (including any extensions thereof) all of the rights and obligations of Landlord under the terms, covenants, provisions and indemnifications of the Covenant Documents. Tenant will pay as additional rent hereunder throughout the Term of this Lease (and will indemnify and hold Landlord harmless from any obligation to pay the same) all Landlord's share of the costs and expenses arising under the Covenant Documents , including, without limitation, all costs and expenses of the maintenance and operation of any parking and other common areas, at the times, in the amounts and in the manner set forth in the Covenant Documents as set forth on the attached Exhibit "C". Tenant's failure to timely comply with or satisfy any of the obligations contained in the Covenant Documents shall be deemed a material default under this Lease provided, however, that Landlord shall promptly provide Tenant with any and all notices and/or correspondence Landlord sends or receives with respect to any rights or obligations under the Covenant Documents. Further, Landlord shall assist Xxxxxx, at no cost to Landlord and upon request by Xxxxxx, to enforce the terms and provisions of the Covenant Documents. Landlord may amend the Covenant Documents without Tenant's consent so long as any such amendment or amendments only affect the Leased Premises after the term of this Lease has expired (including any extensions thereto) or has terminated as provided herein.
46
Tenant hereby assumes responsibility for all security measures for the Leased Premises.
This Lease may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.
The Lease has been fully negotiated and no provision shall be construed for or against either Tenant or Landlord, and this Lease shall be interpreted in accordance with its general tenor in an effort to reach an equitable result.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed as of the day and year first written above.
[SIGNATURES ON NEXT PAGE]
47
LANDLORD:
XXXX XXXXXXX, L.L.C.,
an Iowa Limited Liability Company
Name: /s/ Xxxxxx X. Xxxxxxx
Title: President
Date: December 13 2004
STATE OF IOWA COUNTY OF POLK
)
) ss.
)
On December 13, 2004, before me, Xxxxxxx X. Xxxxx , a Notary Public in and for said State, personally appeared Xxxxxx X. Xxxxxxx ,of Xxxx Xxxxxxx, L.L.C., an Iowa Limited Liability Company, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by bis signature on the instrument the person, of the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
LANDLORD:
XXXX XXXXX, L.L.C.
an Iowa Limited Liability Company
Attest:
By: /s/ Xxxxxxx X. Xxxxx Name: /s/ Xxxxxxx X. Xxxxx Title: President
Date: December 13, 2004
STATE OF IOWA
COUNTY OF POLK
)
) ss.
)
0n December 13, 2004, before me, Xxxxxxx Xxxxxxxx a Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxx of Xxxx Xxxxx, L.L.C., an Iowa Limited Liability Company, personally !mown to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument the person, of the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
My commission expires: July 13, 2005 Notary Public
/s/ Xxxxxxx Xxxxxxxx
TENANT:
Attest:
Name: /s/ Xxxxx X. Xxxxx
BEST BUY CO., INC., a Minnesota corporation
By: /s/ Xxxx Xxxxxxxxxx Title: Senior Vice Preside Date: December 16, 2004
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On December 16, 2004, 2004, before me, Xxxx X. Helper, a Notary Public in and for said State, personally appeared Xxxx Xxxxxxxxxx, Senior Vice President of BEST BUY CO., INC., a Minnesota corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, of the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
My commission expires: January 31, 2005 Notary Public
/s/ Xxxx X. Helper
EXHIBIT A LEGAL DESCRIPTION
LOT 1, XXXXXXX FIRST ADDITION, CITY OF AMES, STORY COUNTY, IOWA
EXHIBITB
MEMORANDUM OF LEASE COMMENCEMENT
STATE OF IOWA )
) ss.
COUNTY OF POLK )
This Memorandum of Lease Agreement (this "Memorandum") executed as of December 20, 2004, by and between XXXX XXXXXXX, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 65% interest, and XXXX XXXXX, L.L.C., an Iowa Limited Liability Company, as Tenant in Common holding a 35% interest ( collectively hereinafter called "Landlord'') and BEST BUY CO., lNC., a Minnesota Corporation (hereinafter called "Tenant").
WITNESSETH:
That Landlord and Tenant have entered upon into a Lease (the "Lease") dated as of this date, the terms, provisions and conditions of which are incorporated herein by reference to the same extent as if recited in their entirety herein, whereby Landlord has leased to Tenant the premises (the "Leased Premises") located in the City of Ames, County of Story, State of Iowa, together with the improvements located thereon, said Leased Premises being more particularly described on Exhibit "A" attached hereto.
Special reference is hereby made to the following terms and provisions of the Lease:
L.P. dated October 14, 2002, and recorded October 24, 2002, as Instrument No. 02
16733.
Landlord hereby assigns to Tenant and Xxxxxx hereby agrees to assume, for the Term of the Lease (including any extensions thereof) all of the rights and obligations of Landlord under the terms, covenants, provisions and indemnifications of the Covenant Documents.
This Memorandum is executed for the purpose of recordation in the Official Records for the County of Story, State of Iowa, in order to give notice of the terms and provisions of the Lease and is not intended and shall not be construed to define, limit or modify the Lease. This Memorandum may be executed in counterpart.
EXECUTED on the date first recited above.
[SIGNATURES ON NEXT PAGE]
LANDLORD:
XXXX XXXXXXX, L.L.C.,
an Iowa Limited Liability Company
Attest:
Name:
By: _ Name: Xxxxxx X. Xxxxxxx
Title: President
Date: December , 2004
STATE OF IOWA COUNTY OF POLK
)
) ss.
)
On December , 2004, before me, Xxxxxxx X. Xxxxx , a Notary Public in and for said State, personally appeared Xxxxxx X. Xxxxxxx ,of Xxxx Xxxxxxx, L.L.C., an Iowa Limited Liability Company, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by bis signature on the instrument the person, of the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires: _
LANDLORD:
XXXX XXXXX, L.L.C.
an Iowa Limited Liability Company
Attest:
Name:
By:
Name: Xxxxxxx X. Xxxxx Title: President
Date: December_, 2004
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On December _ _, 2004, before me, Xxxxxxx X. Xxxxx, a Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxx of Xxxx Xxxxx, L.L.C., an Iowa Limited Liability Company, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, of the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
TENANT:
Attest:
Name:
BEST BUY CO., INC., a Minnesota corporation
By: Name: Title: Date: , 2004
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On December 2004, before me, Xxxxxx X. Xxxxxxxx, a Notary Public in and for said State, personally appeared , of BEST BUY CO., INC., a Minnesota corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, of the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires: January 31, 2005
EXHIBITC
COVENANT DOCUMENTS
Best Buy #812.01.1
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is entered into this 11th day of December, 2018 ("Effective Date"), by and between XXXX XXXXXXX, L.L.C., an Iowa limited liability company, as tenant in common holding a 65% interest, and XXXXXXXXX XXXXXXX, L.L.C., an Iowa limited liability company, as tenant in common holding a 10.21% interest and XXXXXXXXX XXXX, L.L.C., an Iowa limited liability company, as tenant in common holding a 24.79% interest ("Landlord"), and BEST BUY STORES, L.P., a
Virginia limited partnership ("Tenant").
RECITALS
WHEREAS, Landlord and Tenant are the current parties to that certain Lease dated December 20, 2004 (the "Lease"), with respect to the Leased Premises more fully described in the Lease and having a street address of 0000 Xxxxx Xxxx Xxxxxx, Xxxx, Xxxx 00000; and
WHEREAS, Xxxxxxxx and Tenant have agreed to amend the Lease in accordance with the terms and conditions more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, including the mutual promises contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
TERMS
"Provided that Tenant is not in Default and the property is being occupied, both when exercising its option to extend and at the commencement of the renewal period, Tenant is hereby given the right to extend the Term beyond the First Extension Period for three (3) additional periods of five (5) years per period, upon the same terms and conditions as provided for the existing Term, except that fixed rent shall be payable at the rates described in the Lease.
Tenant shall exercise the right granted in the foregoing sentence by notifying Landlord in writing of its intention to exercise its option to extend the Term at least one (1) year prior to the date of commencement of each such extension term, and thereupon this Lease shall be so extended without any further document or act. If Tenant fails to notify Landlord of its exercise of its extension option as hereinabove provided, its option to extend shall nevertheless remain in full force and effect for a period of thirty (30) days after Xxxxxx's receipt of subsequent written notice from Landlord setting forth the expiration date of this Lease and advising Tenant that notice of extension has not been received. In the event the Term is extended pursuant to this Article, the definition of "Term" as used in this Lease shall include any and all such extension term(s).
Period |
Annual Rent |
Monthly Rent |
Per sg. fl. |
12/20/2019 to 3/31/2025 |
$405,470.60 |
$33,789.22 |
$13.40 |
Option 2 (4/1/2025 to 3/31/2030) |
$466,804.78 |
$38,900.40 |
|
Option 3 (4/1/2030 to 3/31/2035) |
$480,808.92 |
$40,067.41 |
|
Option 4 (4/1/2035 to 3/31/2040) |
$495,233.19 |
$41,269.43 |
|
20 year NOL warranty; and (b) replace the existing rooftop heating, ventilating and air conditioning ("HVAC") units serving the Building with new HVAC units with a 5 year parts replacement warranty on the compressors and a 5 year parts replacement warranty on the heat exchangers. Landlord shall pay Tenant for the total costs and expenses incurred by Tenant in connection with the Work ("Work Costs") up to a maximum of Two Hundred Thousand Dollars ($200,000.00). Landlord shall pay the Work Costs to Tenant within twenty (20) days after Tenant shall submit a request to Landlord indicating completion of the Work together with (i) a copy of the above- referenced warranty and (ii) a copy of third party invoices evidencing the
Work Costs incurred by Tenant (collectively, "Completion Notice"). In the event Landlord does not timely pay Tenant the Allowance in full within twenty (20) days after receipt of the Completion Notice, Tenant may offset the same against the rent otherwise payable under the Lease until fully recouped. As of the date of Xxxxxxxx's receipt of the Completion Notice and continuing for the balance of the Term, Landlord will be responsible, at its sole cost, for all repair, maintenance and future replacement of the Building's roof system (including the roof membrane) and HVAC.
3
(including reasonable attorneys' fees) arising from any breach of the representations and warranties contained in this paragraph, including without limitation, any and all claims that might be made by any third party as a result of the execution of this First Amendment.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Des Moines, Iowa 50312 With a copy to:
Xxxxxxx X. Xxxxx Xxxxx Law Office
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxx, Xxxx 00000
Phone: 000-000-0000
E-mail: xxx@xxxxxxxxxxxxxx.xxx
Best Buy Stores, L.P. 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000
Attention: Legal Department - Real Estate with a copy to:
Robins Xxxxxx LLP 0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx
Minneapolis, MN 55402-2015 Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Tenant shall not be responsible for partitioning any payments or distributing the same to more than one entity, it being understood for example and not limitation that if Landlord shall be comprised of more than one person, entity and/or beneficiary that Landlord shall designate a payee for Tenant. As of the Effective Date of this First Amendment, Tenant shall continue to pay all rent to Xxxx Xxxxxxx, LLC and such entity shall partition and/or distribute the same as required to its tenants in common as Landlord.
4
5
distribute any of the terms, details or conditions of the Lease including this First Amendment to any person, firm or entity without obtaining the express written approval of the other party or its respective successors or assigns, except (i) as reasonably necessary in the conduct of its business such as necessary employees, officers, legal counsel, brokers, and consultants (for tax, financial or leasing matters), it being understood that third party lease consultants shall be required to execute a nondisclosure agreement for such purpose; (ii) to the extent the terms of this First Amendment become publicly available through no wrongful act of disclosing party; or (iii) when required by law, court order, duly authorized subpoena, or governmental authority to do so (but the party required to disclose shall promptly give the other party written notice and an opportunity to contest such required disclosure).
[Signatures on the following page]
6
666
IN WITNESS WHEREOF, the parties have caused this First Amendment to Lease to be executed as of the day and year first above written.
LANDLORD:
TENANT:
XXXX XXXXXXX, L.L.C., an Iowa Limited liability company
By: /s/ Xxxxxx X. Xxxxxxx Title: Manager
Date: 12-11-2018
XXXXXXXXX XXXXXXX, L.L.C., an Iowa
Limited liability company
By: /s/ Xxxxxx X. Xxxxxxx Title: Manager
Date: 12-11-2018
XXXXXXXXX XXXX, L.L.C., an Iowa Limited liability company
By: /s/ Xxx Xxxx Title: Manager Date: 12-11-2018
BEST BUY STORES, L.P., a Virginia limited partnership
By: BBC Property Co., a Minnesota corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxx Title: VP
Date: 12-12-2018
6
DocuSign Envelope ID: 61ED9O60-4E83-412D-8A17-4215479A7169
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "Second Amendment")
is made this 13 day of February ,2023 (the "Effective Date"), by and between
Xxxx Xxxxxxx, L.L.C., an Iowa limited liability company, as tenant in common holding a 65% interest, and Xxxxxxxxx Xxxxxxx, L.L.C., an Iowa limited liability company, as tenant in common holding a 10.21% interest, and Xxxxxxxxx Xxxx, L.L.C., an Iowa limited liability company, as tenant in common holding a 24.79% interest (collectively, "Landlord") and Best Buy Stores, L.P., a Virginia limited partnership ("Tenant").
RECITALS:
WHEREAS, Landlord and Tenant are the current parties to that certain Lease dated December 20, 2004, as amended by a First Amendment to Lease dated December 11, 2018 (collectively, the "Lease"), with respect to the Leased Premises more fully described in the Lease and having a street address of 0000 Xxxxx Xxxx Xxxxxx, Xxxx, Xxxx 00000;
WHEREAS, pursuant to the terms of the Lease, Tenant leases from Landlord the real estate legally described as Lot 1, Xxxxxxx First Addition, City of Ames, Story County, Iowa (the "Original Lot");
WHEREAS, subject to the satisfaction of the Re-Development Conditions and the Tenant Conditions, Landlord and Tenant desire to split the Original Lot to create two (2) distinct lots as legally described on Exhibit A (the "Best Buy Lot") and Exhibit B (the "Sign Lot") and remove the Sign Lot from the Lease from and after the Re-Development Date; and
WHEREAS, subject to the satisfaction of the Re-Development Conditions and the Tenant Conditions, Landlord desires to develop the adjacent property legally described on Exhibit C (the "Adjacent Lot") all as shown on the plan attached hereto as Exhibit D.
NOW THEREFORE, for and in consideration of the mutual covenants herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Tenant, at its sole cost and expense, shall perform the Curbside Pickup Work in accordance with all applicable obligations under the Lease, including compliance with applicable Laws and obtaining any permits or authorizations required by the applicable governmental authority ("Permits"). To the extent that any Permits are required to be executed in connection with Xxxxxx's Curbside Pickup Work, Landlord shall cooperate with the same (including timely executing any Permits required to be executed by Landlord within ten (10) days after request for the same), it being understood that Tenant shall be responsible for the costs to obtain such Permits.
2
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
of the Charging System, it being understood that all governmental incentives related to such Charging System shall also accrue to Tenant; (b) Tenant shall coordinate the installation of the Charging System so as not to unreasonably interfere with any of the business operations in the Shopping Center; (c) Tenant shall install, maintain and use of the Charging System in accordance with applicable Laws; (d) Tenant shall be responsible for repairing any damage to the parking area caused by Tenant's installation and maintenance of the Charging System. Landlord shall cooperate with Tenant's installation, maintenance and use of the Charging System. Tenant shall be entitled to continuing access to perform any maintenance, repairs and replacements of the Charging System that Tenant deems necessary, in Tenant's reasonable discretion. Landlord shall not be required to incur any out-of- pocket costs in connection with Tenant's installation, maintenance and use of the Charging System unless Tenant shall agree to pay for the same.
3
DocuSign Envelope ID: 61ED9O60-4E83-412D-8A17-4215479A7169
licensed real estate agents. Tenant is advised to seek legal counsel.
(Signatures appear on the following page.)
4
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Lease Agreement as of the day and year first above written.
LANDLORD:
XXXX XXXXXXX, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx, Manager
XXXXXXXXX XXXXXXX, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx, Manager
XXXXXXXXX XXXX, L.L.C.
By: /s/ Xxx X. Xxxx, Manager
TENANT:
BEST BUY STORES, L.P.
By: BBC Property Co., its general partner By: /s/ Xxxxx Xxxxxxxxx, Vice President
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Exhibit A
Best Buy Lot Legal Description
Lot 1 in Xxxxxxx Subdivision Second Addition, an Official Plat, now included in and forming a part of the City of Ames, Story County, Iowa.
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Exhibit B
Sign Lot Legal Description
Outlot Z in Xxxxxxx Subdivision Second Addition, an Official Plat, now included in and forming a part of the City of Ames, Story County, Iowa.
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A 7169
Exhibit C
Adjacent Lot Legal Description
Lot 3 in Xxxxxxx Subdivision Second Addition, an Official Plat, now included in and forming a part of the City of Ames, Story County, Iowa.
Exhibit D Starbucks Plan
2
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
3
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
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DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Exhibit F
Amendment to Reciprocal Easement and Operation Agreement [See Following Pages]
8
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
AMENDMENT TO RECIPROCAL EASEMENT AND OPERATION AGREEMENT
Recorder's Cover Sheet
Preparer Information:
Taxpayer Information: Return Document To:
Xxxxxx X. Xxxxxx
Xxxxx XxXxxxxxx, P.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxx, XX 00000-0000 Phone 000-000-0000
NIA
Xxxxxx X. Xxxxxx
Xxxxx XxXxxxxxx, P.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxx, XX 00000-0000
Grantor/Claimant:
Xxxx Development, L.L.C. Xxxx Xxxxxxx, L.L.C. Westbrooke Xxxxxxx, L.L.C. Westbrooke Xxxx, L.L.C. Best Buy Stores, L.P. Books-A-Million, Inc.
Legal Description: See Exhibit A and Exhibit B
Grantees:
To Whom It May Concern
Document or instrument number of previously recorded documents: Reciprocal Easement and Operation Agreement recorded October 24, 2002 as Instrument Number 02-16733.
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
AMENDMENT TO RECIPROCAL EASEMENT AND OPERATION AGREEMENT
This Amendment to Reciprocal Easement and Operation Agreement (this "Amendment") is entered as of the_ day of ,2023 by the following parties:
Xxxx Development, L.L.C., an Iowa limited liability company ("Duff Development");
Xxxx Xxxxxxx, L.L.C., an Iowa limited liability company, Westbrooke Xxxxxxx, L.L.C., an Iowa limited liability company, and Westbrooke Wolf, L.L.C., an Iowa limited liability company (collectively, "DWW");
Best Buy Stores, L.P., a Virginia limited partnership ("Best Buy"); and Books-A-Million, Inc., a Delaware corporation ("BAM").
WHEREAS, Duff Development owns the real estate legally described in Exhibit A (the "Duff Parcel");
WHEREAS, BAM leases the Duff Parcel from Duff Development;
WHEREAS, DWW owns the real estate legally described in Exhibit B (the "Best Buy Parcel" and together with the Duff Parcel, the "Total Parcel");
WHEREAS, Best Buy leases the Best Buy Parcel from DWW;
WHEREAS, the Total Parcel is subject to a certain Reciprocal Easement and Operation Agreement recorded October 24, 2002 as Instrument Number 02-16733 (the "REA");
WHEREAS, Duff Development and DWW desire to re-plat the Total Parcel to create three new lots and one outlot (the "Re-Plat"), with one of the new lots (the "New Parcel") to be used as a coffeeshop;
WHEREAS, Xxxx Development and DWW desire to amend the REA to permit the creation of the New Parcel and the development of the New Parcel for use as a coffeeshop; and
WHEREAS, Best Buy and BAM desire to consent to this Amendment, the creation of the New Parcel and the development of the New Parcel for use as a coffeeshop.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. Creation of New Parcel. The REA is hereby amended to permit the creation of the New Parcel and the development of the New Parcel for use as a coffeeshop substantially in accordance with the site plan attached hereto as Exhibit C. The foregoing includes, but is not limited to, the REA being amended to: (i) remove the footprint of the buildings, structures and improvements depicted in the site plan attached hereto as Exhibit C from
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
any Common Areas and no build areas under the REA; and (ii) include the land under the footprint of such buildings, structures and improvements as Permissible Building Areas. Notwithstanding anything to the contrary in the REA, including, without limitation, anything to the contrary in Section 2(b), construction, alteration, and repair work within the New Parcel shall be permitted. Following the creation of the Re-Plat, the "Best Buy Parcel" as defined in the REA shall mean Lot 1 and Outlot Z of the Re-Plat; the "Duff Parcel" as defined in the REA shall mean Lot 2 of the Re-Plat; and New Parcel shall mean Lot 3 of the Re-Plat.
c. The Owner of the Best Buy Parcel (''Maintaining Owner") shall be responsible for the common area maintenance to be performed and shall bill the Owner of the Duff Parcel for thirty percent (30%) and the Owner of the New Parcel for ten percent ( I 0%) of the cost of the Common Area Maintenance. The cost of the Common Area Maintenance billed to the Owner of the Duff Parcel and New Parcel (the "Non- maintaining Owners") may include an administrative fee equal to ten percent (I 0%) of the Common Area costs billed but shall not include any other charges for overhead or management. For purposes hereof, the Common Area Maintenance shall include all required maintenance on the Parcel except as otherwise provided in paragraph 2(c), 2(d), 2(g) and 3(b) hereof The Maintaining Owner shall maintain the Common Area in a safe, sightly and serviceable condition, which repair and maintenance shall include cleaning, lighting, painting, striping, landscaping, removing garbage and trash, removing obstructions, snow, water and ice, repairing and servicing the parking areas, curbs, walks, driveways, utilities and drainage facilities, and directional signs and lighting facilities as necessary from time to time and shall further include maintenance, repair, lighting, cleaning and painting the Shopping Center pylon sign; provided each Parcel Owner shall be responsible for the repairs and maintenance of its sign panel and provided further that New Parcel Owner shall not be responsible to reimburse for any costs related to the Pylon Sign or Sign Outlot.
The Non-maintaining Owners may elect (together and not individually) at any time to maintain all common area on its own Parcel. In the event that the Non- maintaining Owners so elect, each Parcel Owner shall thereafter maintain the Common Area on its Parcel consistent with the standards set forth above.
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
I 0. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment.
[Signature Pages Follow]
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Signature Page - Amendment to Reciprocal Easement and Operation Agreement
XXXX DEVELOPMENT, L.L.C.
By:
Xxx Xxxxxxx, President
STATE OF )
)ss: COUNTY OF )
This instrument was acknowledged before me on this day of ,2023 by Xxx Xxxxxxx as President of Duff Development, L.L.C.
Notary Public in and for said State
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Signature Page - Amendment to Reciprocal Easement and Operation Agreement
XXXX XXXXXXX, L.L.C.
By: Xxx Xxxx, Manager
XXXXXXXXXX XXXXXXX, L.L.C.
By: _ Xxx Xxxx, Manager
WESTBROOKE WOLF, L.L.C.
By: Xxx Xxxx, Manager
STATE OF
)ss:
COUNTY OF
This instrument was acknowledged before me on this day of ,2023 by Xxx Xxxxxx Manager of Xxxx Xxxxxxx, L.L.C., Xxxxxxxxxx Xxxxxxx, L.L.C. and Xxxxxxxxxx Xxxx, L.L.C.
Notary Public in and for said State
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Signature Page - Amendment to Reciprocal Easement and Operation Agreement
BEST BUY STORES, L.P.
By: BBC Property Co., its General Partner
By: Xxxxx Xxxxxxxxx, Vice President
STATE OF ,
)ss: COUNTY OF )
This instrument was acknowledged before me on this day of ,2023 by Xxxxx Xxxxxxxxx as Vice President of BBC Property Co., as the General Partner of Best Buy Stores, L.P.
Notary Public in and for said State
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Signature Page - Amendment to Reciprocal Easement and Operation Agreement
BOOKS-A-MILLION, INC.
By: _
Name:
Title:
STATE OF ,
)ss: COUNTY OF )
This instrument was acknowledged before me on this day of , 2023 by
as of Books-A-Million, Inc.
Notary Public in and for said State
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Exhibit A
Duff Parcel Legal Description
Lot 2 in Xxxxxxx Subdivision First Addition, an Official Plat, now included in and forming a part of the City of Ames, Story County, Iowa.
To become:
Lot 2 in Xxxxxxx Subdivision Second Addition, an Official Plat, now included in and fanning a part of the City of Ames, Story County, Iowa.
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Exhibit B
Best Buy Parcel Legal Description
Lot I in Xxxxxxx Subdivision First Addition, an Official Plat, now included in and forming a part of the City of Ames, Story County, Iowa.
To become:
Lot I in Xxxxxxx Subdivision Second Addition, an Official Plat, now included in and forming a part of the City of Ames, Story County, Iowa.
DocuSign Envelope ID: 61ED9D60-4E83-412D-8A17-4215479A7169
Exhibit C
New Parcel Site Plan
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this “Third Amendment”) is made this 13 day of March , 2024 (the “Effective Date”), by and between Xxxx Xxxxxxx, L.L.C., an Iowa limited liability company, as tenant in common holding a 65% interest, and Xxxxxxxxx Xxxxxxx, L.L.C., an Iowa limited liability company, as tenant in common holding a 10.21% interest, and Xxxxxxxxx Xxxx, L.L.C., an Iowa limited liability company, as tenant in common holding a 24.79% interest (collectively, “Landlord”) and Best Buy Stores, L.P., a Virginia limited partnership (“Tenant”).
R E C I T A L S :
WHEREAS, Landlord and Tenant are the current parties to that certain Lease dated December 20, 2004, as amended by a First Amendment to Lease dated December 11, 2018 and Second Amendment to Lease Agreement dated February 13, 2023 (collectively, the “Lease”) with respect to the Leased Premises more fully described in the Lease and having a street address of 0000 Xxxxx Xxxx Xxxxxx, Xxxx, Xxxx 00000;
WHEREAS, Xxxxxxxx and Tenant have agreed to amend the Lease in accordance with the terms and conditions more particularly set forth herein.
NOW THEREFORE, for and in consideration of the mutual covenants herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Period |
Annual Rent |
Monthly Rent |
Per sq. ft. |
4/1/25 to 3/31/2030 |
$452,372.05 |
$37,697.67 |
$14.95 |
Option 3 (4/1/2030 to 3/31/2035) |
$467,501.55 |
$38,958.46 |
$15.45 |
Option 4 (4/1/2035 to 3/31/2040) |
$482,631.05 |
$40,219.25 |
$15.95 |
1
this Third Amendment shall control. From and after the Effective Date, any and all references to “the Lease” or “this Lease” in the Lease shall mean the Lease as modified by this Third Amendment.
(Signatures appear on the following page.)
2
IN WITNESS WHEREOF, the parties have executed this Third Amendment to Lease Agreement as of the day and year first above written.
LANDLORD:
XXXX XXXXXXX, L.L.C.
By:
/s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, Manager XXXXXXXXX XXXXXXX, L.L.C.
By:
/s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, Manager XXXXXXXXX XXXX, L.L.C.
By:
/s/ Xxx X. Xxxx
Xxx X. Xxxx, Manager
TENANT:
BEST BUY STORES, L.P.
By: BBC Property Co., its general partner
By:
/s/ Xxxxx Xxxxxxxxx, Vice President Xxxxx Xxxxxxxxx, Vice President
