LEASE
Exhibit
10.5
LEASE
AGREEMENT OF
LEASE, made effective this 1st day of July , 2009, by and between NTS
Xxxxxx Properties, LLC, a Florida limited liability company with an address
of 000 Xxxxxxxxx Xx., Xxxxxxxxxxxx, XX 00000, hereinafter called
“Lessor”
AND
Xxxxxx
Xxxxx Limited Partnership, a Pennsylvania LP., with its principal offices at
0000 Xxxxx 000, Xxxxxx Xxxx, XX 00000, hereinafter called “Tenant”.
WITNESSETH, that in consideration of
the covenants, promises and agreements herein contained, said parties do hereby
covenant, promise and agree to and with each other as follows:
Premises and
Term
1. Lessor does hereby demise
and lease unto Tenant all that certain land described in Schedule “A”, attached
hereto and made a part hereof, together with all fixtures and other improvements
thereon, hereinafter referred to as the “demised premises”.
To have and to hold the above described
demised premises together with the tenements, hereditaments, and appurtenances
thereunto belonging, for and during the term of nine (9) years, commencing on
the 1st day of
July 2009 and ending June 30, 2018.
Rental
2. (a) Tenant does hereby
covenant and agree to pay Lessor as rent for the said demised premises the sum
of TEN THOUSAND FOUR HUNDRED SEVENTEEN DOLLARS ($10,417.00) in
consecutive monthly payments which shall be due on the first of every
month under the term of this lease, without demand, in advance from the
beginning of the term, said rental to be payable to Lessor, their heirs and
assigns, at Lessor’s address above, or at such other place or places as shall be
designated in writing by Lessor. The receipt of any rent by Lessor
whether the same be that originally reserved or that which may be payable under
any of the covenants and agreements herein contained or any portion thereof,
shall not be deemed to operate as a waiver of the rights of Lessor to enforce
the payment of rent previously due or which may thereafter become due or to
forfeit this Lease by any of the remedies reserved by Lessor herein, and the
failure of Lessor to enforce any covenant or condition concerning which Tenant
shall be guilty or be in default shall not be deemed to void the right of Lessor
to enforce the same or any other conditions or covenants from the occasion of
any subsequent breach or default.
(b) Tenant agrees to pay in
addition to the rent herein reserved any and all sums which may become due by
reason of the failure of Tenant to comply with all the covenants of this Lease
and any and all damages, costs, expenses and impositions which Lessor
may suffer or incur by reason of any default of the Tenant or failure on its
part to comply with all the covenants of this Lease, and each of them, and also
any and all damages to the demised premises caused by any act or neglect of the
Tenant.
Net
Lease
3. It is the purpose and
intent of Lessor and Tenant that the rental provided for in Paragraph 2 hereof,
during the term thereof, shall be absolutely net to the Lessor so that this
Lease shall yield net to the Lessor the rent in said Paragraph 2 as specified,
and that all costs, expenses and obligations of every kind and nature whatsoever
relating to the demised premises, which may arise or become due during the term
of this Lease shall be paid by Tenant, and Lessor shall be indemnified and saved
harmless by Tenant from and against the same.
Maintenance and
Repairs.
4. (a) Tenant
accepts the demised premises in their present condition and state of repair and
without any representations, statements or warranties, express or implied, in
respect thereof or in respect of their condition or the use or occupancy that
may be made thereof. Tenant agrees that Lessor shall in no event be
liable for any defects therein, patent or latent. Throughout the term
of this Lease Tenant shall, at its cost and expense (1) property operate and
take good care of the demised premises and all structures and improvements now
or hereafter comprising same, and all fixtures, equipment and furnishings; (2)
suffer no waste or injury; and (3) make all repairs, both to the inside and
outside, which may be necessary to maintain the same in good order and
condition, including both ordinary and extraordinary and both structural and
non-structural and both foreseeable and unforeseeable repairs and including, but
not limited to all walls, floors, roofs, vaults, approaches, sidewalks,
entrances, water and sewer connections, glass, plumbing, water, gas and electric
fixtures, pipes, wires and conduits, boilers, machinery, fixtures and
appurtenances in or connected with the demised premises. Tenant
agrees that all such repairs shall be in quality and class equal to the original
work and that it will replace whatever cannot be reasonably repaired so as to be
in such good order and condition. It is understood and agreed that so
long as Tenant is not in default under the terms and conditions hereof, it may
make alterations and changes to the demised premises for the purpose of best
serving its business.
(b) During the term of this
Lease, Tenant shall keep, afford and allow access to Lessor to the demised
premises at all reasonable times.
(c) Throughout the term of
this Lease, Tenant shall, at its cost and expense, execute and comply with all
notices, rules, orders, regulations, requirements, ordinances and laws of the
Board of Fire Underwriters or similar organization, and all other governmental
agencies and departments having jurisdiction and of all insurance companies
writing policies covering the demised premises to the extent that any of such
notices, rules, orders, regulations, requirements, ordinances or laws at any
time issued or in force shall be applicable to the demised premises or to the
use or occupation thereof, and whether the same shall require ordinary or
extraordinary or structural or non-structural or foreseeable or unforeseeable
changes in the demised premises, and Tenant shall pay all costs, expenses,
claims, fines, penalties, and losses that may in any manner arise out of or be
imposed because of the failure to comply therewith. It is the
intention of the parties that the Tenant hereby assumes entire responsibility
for and fully relieves Lessor from all responsibility in respect to executing
and complying with such notices, rules, orders, regulations, requirements,
ordinances or laws at any time issued or in force, so that the rent payable
hereunder to Lessor shall not under any circumstances be depleted or shall be
received by the Lessor without necessity or responsibility for any expenditure
of any kind whatever in respect of any of said matters. Tenant
assumes all duties and responsibilities as aforesaid in regard to all notices,
rules, orders, regulations, requirements, ordinances and laws, which
shall affect the demised premises at the time of the commencement of the
term.
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(d) Tenant covenants that
Lessor shall not be liable for any failure of water supply or electric current,
nor for injury or damage which may be sustained to person or property by Tenant
or any other person, caused by or resulting from steam, electricity, gas, water,
rain, ice or snow, which may leak or flow from or into any part of said demised
premises, or from the breakage, leakage, obstruction or other defect of the
pipes, wiring, appliances, plumbing or lighting fixtures of the same, or from
the condition of said demised premises or any part thereof. The
foregoing waiver of damages and claims for damages by Tenant is absolute and
unconditional and shall not be modified, released, abridged or
lessened in any manner or to any extent and Tenant waives any right
to claim such waiver is in violation of any statute or of public
policy.
(e) Unless the property is
purchased or exchanged in accordance with paragraphs 18 and 19 hereunder, at the
end of the term, Tenant shall vacate and deliver up the demised premises,
including all structures and fixtures thereof or appurtenances thereto, promptly
and peaceably to Lessor, upon the expiration of the term of this Lease, or
sooner termination of the term of this Lease, in good, clean, sanitary
condition, reasonable wear and tear excepted. Tenant shall, if
requested, execute and deliver all legal instruments if any are deemed necessary
by Lessor to vest full, complete and unimpaired title in and to all such
structures, improvements and fixtures in Lessor. Upon the expiration
of this Lease, all interest of Tenant in and to the demised premises and any
fixtures attached thereto, except trade fixtures, shall forthwith cease and
terminate.
Indemnity of
Lessor
5. (a) Tenant
agrees to defend, indemnify and save the Lessor harmless against and from any
and all liability, loss, damage and expense (including reasonable attorney’s
fees) and from and against any and all suits, claims and demands of every kind
and nature made by or on behalf of any and all persons, firms or corporations,
arising out of or based upon any accident, injury or damage, however occurring,
which, during the term hereof shall or may happen in, on or about the demised
premises, entrances thereto, streets, sidewalks or curbs in front of, over or
adjacent thereto, or on or about or in connection with any railroad facilities
now or hereafter appurtenant to or servicing said premises and in which the
Lessor or the Tenant shall have any interest, or arising out of or based upon
the condition, maintenance, repair, alteration, use, occupation or operation of
said demised premises or facilities during the term hereof, or arising out of
any breach or default on the part of the Tenant in the performance or observance
of any covenant or agreement on the part of the Tenant to be performed or
observed pursuant to the terms of this Lease.
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(b) Lessor agrees to give
Tenant reasonable notice of any claims or demands against the Lessor arising out
of or based upon any of the liabilities, losses or expenses against which Tenant
is bound to defend, indemnify and save harmless the Lessor. At its
option and at its sole expense, Tenant shall have the right to settle or defend
against such claims or demands.
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(c)
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Tenant
shall indemnify and save harmless Lessor from and against all mechanics
liens and notices thereof and all claims thereof on account of any
materials furnished or labor performed in, about or in connection with the
demise premises or the sidewalks and curbs adjacent
thereto. Should any such lien be filed, Tenant shall promptly
bond or otherwise discharge the
same.
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(d) Tenant shall protect,
defend, indemnify, and hold harmless Lessor, its assigns and their respective
officers, partners, and employees and their respective heirs, legal
representatives, successors and assigns from and against all liabilities,
losses, costs, damages, expenses or claims, including, but not limited to,
remedial, removal, response, abatement, cleanup, legal, investigative, and
monitoring costs and other related costs, expenses, losses, damages, penalties,
fines, liabilities, obligations, defenses, judgments, suits, proceedings, and
disbursements (including, without limitation, reasonable attorneys’,
consultants’, contractors’ and experts’ fees and disbursements) of any kind or
of any nature whatsoever, which may at any time be imposed upon Lessor, incurred
by Lessor, or arise (directly or indirectly): (i) from Requirements of
Environmental Law; (ii) with respect to Environmental Claims related to the
Property; (iii) from the failure of Tenant, or any other party directly or
indirectly connected with the Property, to obtain, maintain, or comply with any
Environmental Permit, and/or (iv) otherwise from the presence or existence of
Hazardous Materials on or near the Property, including all consequential damages
(each of the foregoing, an “Indemnified Claim.
(e) All
such indemnity, and all rights and obligations hereunder, shall survive
performance of the obligations evidenced by this lease or any Agreement of Sale
and/or Landlord’s ownership, assignment, transfer or conveyance of the
Property.
(f) Tenant,
its representatives and affiliates have had possession of and access to the
Property and any and all records, facilities, equipment and contracts concerning
the Property. Tenant acknowledges that it, its representatives and
affiliates have the requisite knowledge, skill and understanding to undertake a
review, investigation and evaluation of the Property and the issues associated
with this Agreement, and that it, its representatives and affiliates have the
experience to evaluate the Property and have completed all due diligence that
they require to conduct in connection with the sale of the Property and its
assumption of the obligations provided in this Agreement.
(g) Nothing
contained in this Agreement shall prevent or in any way diminish or interfere
with any rights and remedies, including without limitation, the right to
contribution, which Landlord may have against Tenant or any other party under
CERCLA or any other applicable Federal or state laws.
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Utilities
6. Tenant covenants that
during the term aforesaid or any extension or renewal thereof at its own proper
cost and charge, it will bear, pay and discharge, when due and payable, all
charges for electricity, gas, heat, telephone, water or other utility services
used on the demised premises or any part thereof which shall, during the term
hereby demised or any extension or renewal thereof, be laid, levied, assessed or
imposed upon or become due and payable.
Taxes and Other
Impositions
7. (a) Tenant shall pay or
cause to be paid before any fine, interest, penalty or cost may be added thereto
for the non-payment thereof, all taxes, assessments, water and sewer rents,
rates and excises, levies, impositions or other governmental charges of any kind
and nature which may during the term hereof or any renewal be assessed, levied,
confirmed, imposed upon or become due and payable in respect of or become a lien
upon the demised premises. Receipts for payment of taxes,
assessments, water and sewer rents, rates and excises, levies, impositions or
other governmental charges, shall be delivered by Tenant to Lessor annually
before December 15 of each year.
(b) Tenant shall have the
right to challenge and contest the legality or validity of any imposition, tax,
assessment or levy against the within demised premises by appropriate
proceedings diligently conducted in good faith, provided the demised premises
would not by reason of such contest be in danger of being forfeited or
lost. Tenant may proceed in its own name or as agent for and on
behalf of Lessor, provided Tenant indemnifies and saves harmless Lessor from any
cost or expense in connection therewith.
Insurance
8. (a) Tenant agrees that it
will at all times during the term hereof, maintain and pay for general public
liability insurance affording basic protection to Tenant and Lessor with limits
of One Million Dollars ($1,000,000.00) in respect to injury or death resulting
from one accident and Five Hundred Thousand Dollars ($500,000.00) with respect
to property damage. Lessor shall be furnished with a certificate of
insurance therefor which shall be endorsed to provide for thirty (30) days
written notice to Lessor prior to the termination of the policy or policies and
before any charges are made which will restrict or reduce the coverage provided
or change the name of the insured and, furthermore, that such insurance has been
taken out and is maintained in favor of Lessor and Tenant.
(b) Tenant shall insure or self insure
all demised premises for fire and other casualty, and shall rebuild or
repurchase any such effected demised premises in such an
event.
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Rent Not to
Xxxxx
9. Tenant covenants and
agrees that it will continue to pay the rentals hereunder at such times and in
the amounts herein specified and shall purchase the demised premises as herein
required irrespective of whether or not any or all of the building shall have
been wholly or partially destroyed by fire, other casualty, or by any other
cause.
Condemnation
10. (a) Should
the whole or any part of the demised premises be condemned and taken by any
competent authority for any public or quasi-public use or purpose, Tenant shall
be entitled to retain as its own property any award or amount agreed upon in
settlement thereof.
(b) If the whole or part of
the demised premises shall be so condemned and taken, this Lease shall
automatically terminate. In such event, Tenant shall transfer to
Lessor demised premises of equivalent value at no cost to Lessor and shall enter
into a lease for a time period equal to the remaining time of this
Lease.
Subordination
11. This Lease and Tenant’s
leasehold estate and all rights of Tenant hereunder shall be subject and
subordinate at all times and in all respects to the lien of any and all
mortgages which Lessor may make upon any right, title or interest of Lessor in
the demised premises, and to any and all extensions and renewals and any and all
new mortgages make in lieu of or in replacement of any such mortgage, provided
that any such mortgage shall provide that so long as Tenant shall not be in
default in the performance and observance of the terms, covenants, conditions
and limitation in this Lease contained on the part of the Tenant to be performed
and observed, no foreclosure of the lien of said mortgage or any other
proceeding under said mortgage for default thereof shall impair the right of
Tenant to enjoy this Lease pursuant to its terms. In the event of
acquisition of Lessor’s interest in this Lease by any such mortgagee or anyone
claiming through or under such mortgagee, Tenant will recognize as its lessor
such mortgagee or the person claiming through or under such mortgagee who shall
so acquire title to the Lessor’s interest in this Lease.
Assignment and
Subletting
12. The Tenant shall have
the right to assign or encumber this Lease or sublet any portion of the demised
premises without the Lessor’s written consent. Such assigning,
encumbering or subletting, however, shall not relieve the Tenant from primary
responsibility for performance of all terms, covenants and conditions of this
Lease. Lessor shall have the right to assign this lease to an LLC
created by Lessor, with Tennat’s approval, which shall not be unreasonably
withheld.
Acts of
Default
13. Each of the following
shall be deemed a default by the Tenant and a breach of this
Lease.
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(a) Failure to pay the rent
herein reserved, or any part thereof, other than additional rent, for a period
of ten (10) days after notice;
(b) Failure to do, observe, keep and
perform any of the terms, covenants, conditions, agreements and provisions in
this Lease contained on the part of the Tenant to be done, observed, kept and
performed for a period of thirty (30) days after notice;
(c) The abandonment of the demised
premises by the Tenant, the adjudication of the Tenant as a bankrupt, the making
by the Tenant of a general assignment for the benefit of creditors, the taking
by the Tenant of a general assignment for the benefit of creditors, the taking
by the Tenant of the benefit of any insolvency act or law, the appointment of a
permanent receiver or trustee in bankruptcy for the Tenant’s property, the
appointment of a temporary receiver which is not vacated or set aside within
thirty (30) days from the date of such appointment, and any failure to do,
observe, keep and perform any of the terms, covenants, conditions, agreements
and provisions in this Lease contained on the part of the Tenant to be done,
observed, kept and performed.
For the purpose of subparagraph (b) of
this Paragraph 13, if the default complained of be a default other than one
which may be cured by the payment of money, no default on the part of the Tenant
in the performance of work required to be performed or acts to be done or
conditions to be met shall be deemed to exist if steps shall have been in good
faith commenced promptly by the Tenant to rectify the same and shall be
prosecuted to completion with diligence and continuity.
Lessor’s Remedies in Event
of Default
14. In the event of any such default
by the Tenant and at any time thereafter the Lessor may serve a written notice
upon the Tenant that the Lessor elects to terminate this Lease upon a specified
date not less than sixty (60) days after the date of serving such notice (except
in the case of a default under subparagraph (a) of Paragraph 13 for non-payment
of rent, in which event such date shall not be less than twenty (20) days after
the expiration of any notice given under said subparagraph (a) and except in
case of a default under subparagraph (c) of said Paragraph 13, in which event
such date shall be not less than ten (10) days from the date of the service of
such notice) and this Lease shall then expire on the date so specified as if
that date has been originally fixed as the expiration date of the term herein
granted unless such default shall have been cured within the applicable period
provided in said notice. No default or failure to perform by the Tenant shall
be deemed waived unless waived by instrument in writing signed by the Lessor
except that a default or failure to perform under subparagraphs (a) and (b) of
Paragraph 13 shall be deemed waived if such default or failure is fully and
completely rectified before the expiration of the period specified in the notice
of termination of this Lease served on the Tenant.
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Reentry By Lessor on
Default
15. In the event that this
Lease shall be terminated as hereinbefore in Paragraph 14 provided, or by
summary proceedings or otherwise, or in the event that the demised premises, or
any part thereof, shall be abandoned by the Tenant, the Lessor, or their agents,
servants or representatives may immediately or at any time thereafter reenter
and resume possession of the demised premises or any part thereof, and remove
all persons and property therefrom, either by summary disposses proceedings or
by a suitable action or proceeding at law or by force or otherwise, without
being liable for any damages therefor. No reentry by the Lessor shall
be deemed an acceptance of a surrender of this Lease or a liquidation or
satisfaction to any extent whatsoever of Tenant’s liability to pay rent as
herein provided.
Right of Lessor to Require
Purchase By Tenant
16. In the event that this
Lease shall be terminated in accordance with Paragraph 14 herein, by summary
proceedings or otherwise, or in the event the demised premises, or any part
thereof, shall be abandoned by the Tenant or the Tenant shall fail regularly to
conduct business upon the demised premises, or at any time during the term
hereof at the election of Lessor, the Lessor shall have the right to require the
Tenant to purchase the demised premises subject to this Lease by giving to
Tenant a written notice to such effect stating a date not less than ten (10)
days after the date of serving such notice upon which such sale shall
occur. The purchase price for the demised premises upon such a sale
shall be dependent on year of transfer date:
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Transfer
Year
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Price
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2009
and 2010
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$ | 1,250,000 | ||
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2011
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$ | 1,375,000 | ||
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2012
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$ | 1,500,000 | ||
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2013
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$ | 1,625,000 | ||
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2014
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$ | 1,750,000 | ||
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2015
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$ | 1,875,000 | ||
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2016
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$ | 2,000,000 | ||
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2017
and 2018
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$ | 2,125,000 | ||
and such
purchase and sale shall otherwise be upon the terms and conditions set forth in
Paragraph 18(b) of this Lease.
Lessor’s Failure to Enforce
Term, Condition, or Covenant in Lease
17. The failure of the
Lessor to enforce any term, covenant, condition or agreement hereof by reason of
its breach by the Tenant after notice received shall not be deemed to avoid or
affect the right of the Lessor to enforce the same term, covenant, condition or
agreement on the occasion of a subsequent default or breach.
Purchase by
Tenant
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18.
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(a) Tenant,
if it not be in default hereunder, shall have the option of
purchasing the demised premises at any time under the term of
this lease by service of written notice upon Lessor of its intentions for
the amount in the chart below:
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Transfer
Year
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Price
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2009
and 2010
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$ | 1,250,000 | ||
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2011
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$ | 1,375,000 | ||
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2012
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$ | 1,500,000 | ||
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2013
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$ | 1,625,000 | ||
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2014
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$ | 1,750,000 | ||
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2015
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$ | 1,875,000 | ||
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2016
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$ | 2,000,000 | ||
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2017
and 2018
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$ | 2,125,000 | ||
(b) In
the event Tenant exercises the option as herein provided, Lessor shall deliver
to it a general warranty deed, xxxx of sale and any other documents requested by
Tenant against payment of the purchase price with covenants against liens and
encumbrances, subject only to such conditions as are set forth in the documents
of title as of the date hereof and such rights granted by Tenant during the term
hereof. Taxes and other customary adjustments shall be made between
the parties as of the date of purchase by the Tenant. Documentary
stamps, federal, state or local, if any, shall be borne equally by Tenant and
Lessor. All other closing costs shall be per local
custom.
Exchange of
Property
19. Landlord agrees, upon
written request of Tenant (the “Exchange Notice”), to accept in exchange for the
demised premises (the “Exchange”) real property of similar value (the “New
Property”) selected by Tenant, as appropriate. The Exchange shall
take place at a location mutually acceptable to the parties hereunder in
Washington County on a date mutually acceptable to the parties but in no event
less than sixty (60) days after the date the Exchange Notice is
given. At the Exchange, the Landlord shall convey the demised
premises to Tenant, as appropriate, by deed of general warranty subject only to
liens and encumbrances in existence on the Commencement Date and liens and
encumbrances consented to in writing by Tenant during the Term; provided,
however, any liens for which Landlord is responsible which can be satisfied by
the payment of money shall be so satisfied by Landlord at the
Exchange. Tenant shall convey the New Property to Landlord by general
warranty deed at the Exchange free of all liens. At the Exchange, the
New Property shall replace the demised premises under the Lease. The
Lease shall continue in full force and effect with the New Property treated as
the Demised Property. Any realty transfer taxes shall be split
equally between the parties. The parties agree to execute any other
documents reasonably required in connection with the Exchange, including any
documents required by either party’s title insurance company.
Miscellaneous
20. (a) The
parties hereto agree that the headings or captions contained herein are inserted
for convenience or reference only and are not to be deemed part of or to be used
in construing this Lease.
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(b) If any terms or
provisions of this Lease or the application thereof to any person or
circumstances should, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
(c) This lease contains the
entire agreement between Lessor and Tenant.
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(d)
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This
Lease shall be construed in accordance with the laws of the State of
location of the demised premises.
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(e)
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Tenant
shall depreciate the demised premises for both accounting and tax
purposes, and Lessor shall not depreciate the demised premises for either
accounting or tax purposes.
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(f)
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Tenant
shall provide audited financials of itself and any parties who are
subleasing any portion of the demised premises upon request of
Lessor.
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IN WITNESS WHEREOF, and intending to be
legally bound hereby, Lessor has executed the same under seal and Xxxxxx Xxxxx
Limited Partnership, Tenant, has caused these presents to be executed by its
duly authorized officers and its corporate seal to be herewith affixed by like
authority, all as of the day and year first above written.
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Witness:
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Lessor:
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NTS
Xxxxxx Properties, LLC
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/s/ Xxxxxxxx X. Xxxxxxx
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By:
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/s/ Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx, Manager
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Witness:
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Tenant
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Xxxxxx
Xxxxx Limited Partnership
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By:
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XXXXX
XXX CO.,
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General
Partner
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/s/ Xxxxx X. Xxxxx
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By:
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/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx
X. Xxxxxxx
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President
and
Manager
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