EXHIBIT 6.7CE
LEASE AGREEMENT
STATE OF TEXAS )
COUNTY OF XXXXX )
This Lease Agreement made and entered into on this the 7th day of
November, 1990, by and between XXXXXX XXXXXX, a resident of Tyler, Xxxxx County,
Texas (hereinafter, "Lessor"), and BOSCO'S, INC., a Delaware Corporation, with
headquarters in Marshall, Texas, and XXXX XXXXXXX, a resident of Tyler, Xxxxx
County, Texas hereinafter individually and collectively referred to as
"Lessee"):
W I T N E S S E T H :
Lessor does by these presents hereby lease, let and demise unto Lessee
the following described property, situated in Xxxxx County, Texas, to-wit:
BEING a part of the A. Neighbors Survey, and being a part of the
35.35-acre tract which was conveyed to Xxxxxx X. Xxxxxxx by the
Citizens National Bank of Tyler, Texas, by deed recorded in Volume 321,
page 238 of the Deed Records of Xxxxx County, Texas, and also a part of
Xxx 0 xx Xxx Xxxx Xxxxx 000 xx xxxx Xxxx of Tyler, the tract of land
hereby conveyed being more particularly described as follows:
BEGINNING at a point in the east line of South Beckham Avenue, said
point being 31.85 feet from the intersection of the projected south
line of East Second Street and the projected east line of South Beckham
Avenue, a point for corner;
THENCE South 10 deg. 08' 40" East with the east line of South Beckham
Avenue a distance of 127.00 feet, a point for corner;
THENCE North 79 deg. 51' 20" East a distance of 100.00 feet, a pointfor
corner;
THENCE North 10 deg. 08' 40" West a distance of 134.38 feet to the
south line of East Second Street, a point for corner;
THENCE North 86 deg. 24' 00" West with the south line of East Second
Street a distance of 71.10 feet to a point for corner at the beginning
of a curve to the left which has a radius of 25 feet and a central
angle of 103 deg. 44' 40";
THENCE following the right-of way line with said curve to the left a
distance of 45.27 feet to the end of said curve and to the PLACE OF
BEGINNING, and containing 14,430 square feet.
As described in that certain deed dated August 17, 1956, by and between
Safeway Stores, Incorporated, Grantor, and Humble Oil & Refining
Company, Grantee.
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for the term of three (3) years beginning on the first day of March, 1991, and
ending on the last day of February, 1994 at Midnight, upon the following terms,
conditions and covenants:
(1) Lessee, as rental for the said premises, has agreed to pay Lessor,
in addition to any and all further sums as set forth herein, in Tyler, Xxxxx
County, Texas, the sum of $54,000.00, payable as follows, to-wit:
Lessee shall pay Lessor the sum of $1,500.00 on or before the first day
March, 1991, representing the first month's rent of the three year term
provided above, and further sum of $l,500.00 on or before the first day
of each month thereafter.
(2) As further consideration of the leasing aforesaid, Lessee covenants
and agrees to bear, pay and discharge (in addition to the rents aforesaid), all
property, city, school, county, college and all other taxes, assessments and
levies of every name, nature and kind which may be taxed, charged or assessed by
any authority with jurisdiction against the demised premises and any and all
buildings, improvements and personal property situated thereon. Lessor shall
during the term of the lease make payment of taxes directly to the taxing
authority, and shall charge Lessee for the reimbursement of the same as follows:
Lessor shall estimate the taxes due upon said property (buildings and
improvements) (based upon the annual tax roles for the previous year), and after
dividing such estimated annual amount by twelve, shall add such amount to the
monthly rental charged to and payable by Lessee. Lessee agrees to pay such
amounts as are billed in this regard and manner. At the end of each tax year,
Lessor shall notify Lessee of any deficiency between the estimated amounts and
the actual taxes due, which amount Lessee agrees to promptly pay upon being
billed by Lessor for same. Lessee shall have the right to protest any ad valorem
tax valuation as agent for Lessor.
(3) Lessor carries a $150,000.00 building insurance policy on the
premises, and intends to continue to do same throughout the term of this lease.
In connection herewith, Lessor shall pay the premiums for the same upon the same
being due directly to the carrier. During the term of this lease, including any
extension periods, Lessor shall charge Lessee for the reimbursement of same.
Reimbursement shall be made according to the same procedure and formula
established for tax reimbursement in paragraph two (2) above.
(4) Lessor and Lessor's agents and representatives shall have the right
to enter and inspect the demised premises at any time for the purpose of
ascertaining the condition of the demised premises or in order to make such
repairs as may be required to be made under the terms of this lease.
(5) Lessee shall purchase a property damage and personal liability
insurance policy to insure against injuries to persons or property while on the
said premises. Such policy shall provide personal liability coverage of at least
$500,000 per person and $1,000,000 per occurrence and shall name Lessor as
additional insured. Lessee shall furnish Lessor with certificates of insurance
evidencing the coverages herein required, and shall keep them current evidencing
the maintenance of such coverages. The insurance company issuing the policies
must be advised by Lessee (and such certificates should reflect) that the
insurer will not cancel such coverage without ten (10) days prior written notice
to Lessor. Should Lessee fail to purchase any such insurance coverage, Lessor
may purchase same and seek reimbursement from Lessee, which remittance Lessee
agrees to make within ten (10) days of the request of Lessor. Notwithstanding
the existence of any insurance coverage, Lessor shall not be liable to Lessee or
to the Lessee's employees, patrons or visitors for any damage or loss to the
person of property caused or occurring on the aforesaid premises, and Lessee
agrees to indemnify and hold Lessor harmless from any and all causes of action
or liability claimed or asserted in connection therewith.
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(6) Lessee shall make no alterations, renovations or other remodeling
of the premises or the building located thereon, and shall erect no additional
structures, without the express written consent of Lessor, which consent will
not be unreasonably withheld. Any request by Lessee for such consent shall
include and provide Lessor with copies of floor plans, building plans, color
schemes, and any other information which Lessor may reasonably request, in order
that Lessor has adequate information upon which to consider such request. Lessee
shall meet all the requirements of such construction as may be provided by the
City of Tyler, Texas, at its own cost and expense.
(7) It is understood and agreed that should any building or
improvements be destroyed or damaged by fire or otherwise, including the
building now situated on the said premises, Lessor shall look solely to the
insurance policy referred to in paragraph three (3) hereof for recovery from
such casualty. Upon such recovery, Lessor agrees to rebuild or repair the said
building as promptly as possible, upon the same general plans and dimensions as
before said fire or casualty, subject to the construction requirements of the
City of Tyler, Texas.
(8) Lessee acknowledges that it has examined and knows the condition of
the premises, and possession and occupancy of same will be assumed by Lessee
upon the execution hereof, in its current condition. Lessee shall, at its own
cost and expense, throughout the term of this lease and so long as it remains in
possession of the said premises, keep and maintain in good repair all the
buildings and improvements located upon the demised premises including the
plumbing and electrical work, air conditioning, pipes and fixtures, walls, roof,
floors and foundations, parking lots, drives and curbs, and all other fixtures
belonging thereto.
(9) Lessee agrees that it will promptly execute and fulfill all
ordinances and regulations of the State, County, City and other governmental
agencies with jurisdiction over the demised premises, and all ordinances imposed
by the Board of Health, Sanitary and Police Departments, for the correction,
prevention and abatement of nuisances in or upon or connected with the demised
premises during the term of this lease, at Lessee's sole cost and expense and
without liability to Lessor.
(10) Lessee shall not assign or transfer this lease or sublet the whole
or any part of said leased premises for any purpose without the prior written
consent of Lessor, which consent will not be unreasonably withheld. Regardless
of any such permitted assignment or sublease, Lessee shall remain primarily
liable to Lessor at all times for the full payment of all rents, taxes,
insurance and other consideration due under the terms of this lease, and shall
remain liable for the performance of all the other covenants, provisions,
obligations and agreements herein required to be performed by the Lessee.
Lessor, in addition to any other remedies herein or by law provided, may at his
option collect directly from such assignee or subtenant all rents becoming due
to Lessee under any assignment or sublease agreement and apply such sums against
any sums due Lessor by Lessee hereunder. No direct collection by Lessor from any
assignee or subtenant shall be construed as a novation or a release of Lessee
from the further performance of its obligations hereunder.
(11) Lessor shall not be liable to Lessee or to the Lessee's employees,
patrons or visitors for any damage to the person or property caused or occurring
on the aforesaid premises, and Lessee agrees to indemnify and hold Lessor,
Lessor's agents, representatives, successors and assigns, harmless from any and
all claims and causes of action caused by the acts and/or the negligence of
Lessee, Lessee's employees, patrons or visitors to the leased premises.
(12) If the Lessee shall default in the payment of any installment of
rent for ten (10) days after the same becomes due or if Lessee shall be declared
bankrupt according to law or if any assignment shall be attempted to be made of
said property for the benefit of creditors or should the premises be placed in
the possession of a receiver, then and in such event the entire rent shall, at
the sole option of Lessor, at once
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become due and payable, as if by the term of this lease it were all payable in
advance; or at Lessor's sole option, this lease may become null and void without
further notice.
(13) It is understood and agreed that any equipment, fixtures and
personal property placed upon the demised premises by the Lessee may be removed
by the Lessee at the termination of this lease or any extension thereof,
provided (a) Lessee shall not be in default in the performance of any agreement,
condition, covenant or term hereof, and (b) that no property or fixture which is
permanently attached shall be removed by Lessee if such removal should
permanently injure or dismantle such building, unless the Lessee shall restore
and rebuild the same in the same condition as said building existed prior to the
removal of such equipment, fixture or personal property, and provided further
that such removal shall be erected within thirty (30) days after the expiration
of said term or extension hereof, and such building is completely restored
within thirty (30) days thereof.
(14) It is agreed that Lessee shall, at the expiration or termination
of this lease agreement, either willfully by Lessee, by expiration of term, by
removal of Lessee by Lessor, or any other circumstances effecting surrender,
expiration or termination of this agreement, peacefully yield up unto Lessor,
all and singular the said premises and any such improvements, buildings or
additions thereto, in good tenantable repair in all respects, reasonable use and
wear thereof excepted.
(15) In addition to the statutory landlord's lien, Lessor shall have at
all times a valid contractual lien for rents, taxes and insurance and other sums
of money becoming due hereunder from Lessee, upon all goods, wares, equipment,
fixtures, furniture and other personal property of Lessee situated upon the
leased premises, and such property shall not be removed therefrom without the
consent of Lessor until all such sums of money due and payable hereunder shall
first have been paid and discharged. Upon the occurrence of a default by Lessee,
Lessor may, in addition to any other remedies provided herein or by law, enter
upon the demised premises and take possession, without liability for trespass or
conversion, and sell the same with or without notice at public or private sale,
with or without having such property at the sale, at which Lessor or its assigns
may purchase, and apply the proceeds from the sale of same (less expenses
connected with the taking of possession and sale of property) as a credit
against such sums due by Lessee to Lessor. Any surplus shall be paid to Lessee,
and Lessee agrees to pay any deficiency forthwith.
(16) Provided Lessee has not defaulted in any terms, conditions and
provisions hereof, Lessee shall have the privilege of renewing and extending the
term hereof for a period of seven (7) years beginning on the first day of March,
1994, and terminating on the last day of February, 2001, at Midnight, upon the
same terms, conditions and provisions hereof, provided however, that the Lessee
shall pay to Lessor in Tyler, Xxxxx County, Texas, the sum of $126,000.00,
payable in monthly installments of $1500.00 each, payment of the first monthly
rental to be made on or before the first day of March, 1994, and one monthly
rental to be paid in advance on or before the first day of each month thereafter
until such rental has been paid in full. It is further provided that in order
for the Lessee to exercise option hereunder, it shall and must give Lessor, his
heirs or assigns, written notice by United States mail, registered, return
receipt requested, of its intention to exercise such option as herein provided,
no later than 90 days prior to the effective date of said option.
(17) This Lease Agreement shall be contingent upon Lessee receiving the
necessary municipal approval which should be obtained by the 10th day of
December, 1990. Lessee agrees to commence construction within ten (10) days of
municipal approval. Lessee shall commence paying rent on the first day the
business opens for operation, but no later than eighty (80) days from December
10, 1990. In the event municipal approval is not received on or before the 7th
day of December, 1990, this lease agreement shall be deemed null and void.
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(18) Lessee shall have access to and the right to start renovations of
the property on 10th day of December, 1990.
(19) This Lease Agreement shall be contingent upon Lessor completing a
successful lease buy-out agreement with Car Quest Automotive.
(20) Each Provision of this instrument or of any applicable government
law, ordinance, regulation, or other requirement, with reference to the sending,
mailing or delivery of any notice or with reference to the making of any payment
by Lessee to Lessor, shall be deemed to be complied with when and if the
following steps are taken:
A. All rent and other payments required to be made by Lessee
to Lessor hereunder shall be payable to the Lessor at the address of
Lessor hereinbelow set forth or at such other address as Lessor may
specify from time to time by written notice delivered in accordance
herewith;
B. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when deposited in the United States mails, Postage
Prepaid, return receipt requested, addressed to the parties hereto at
their respective addresses set out opposite their names below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith:
LESSOR: Xxxxxx Xxxxxx LESSEE: Bosco's, Inc.
P. O. Box 7036 500 X. Xxxxxxx
000 XXX Xxxx 000 Xxxxxxxx, XX 00000
Xxxxx 000
Xxxxx, XX 00000
LESSEE: Xxxx Xxxxxxx
000 X. Xxxxxxx
Xxxxxxxx, XX 00000
(21) Lessee has first right of refusal on any Purchase Opportunity that
is acceptable to Lessor. If this right is exercised, the Lessee has 30 days to
accept and close on a sale. In the event Lessee does not exercise its right of
first refusal on any Purchase opportunity, the conveyance by Lessor to any third
party shall be subject to the terms and conditions of this Lease Agreement.
(22) It is further agreed that all covenants, Promises, undertakings,
agreements, obligations, liabilities, grants, rights or powers, entered into,
made, assumed or undertaken by either party hereto, in and by this lease
agreement, shall bind, be applicable to, and inure to the benefit of the heirs,
executors, administrators and assigns of each party hereto respectively, whether
so particularly provided herein or otherwise. This lease represents the entire
agreement between the parties hereto.
(23) This agreement and all the terms hereof shall be interpreted in
accordance with the laws of the State of Texas. In all respects, jurisdiction is
established in Tyler, Xxxxx County, Texas.
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LESSEE LESSOR
XXXXX'X, INC.
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By: Xxxx Xxxxxxx, President Xxxxxx Xxxxxx, Lessor
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Xxxx Xxxxxxx, Lessee
CORPORATE ACKNOWLEDGMENT
THE STATE OF TEXAS )
COUNTY OF XXXXX )
This instrument was acknowledged before me on the 7th day of November,
1990, by Xxxx Xxxxxxx, President, of XXXXX'X, INC., a Delaware corporation, on
behalf of said corporation.
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NOTARY PUBLIC, STATE OF TEXAS
PRINTED NAME:
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COMMISSION EXPIRES:
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ACKNOWLEDGMENTS
THE STATE OF TEXAS )
COUNTY OF XXXXX )
This instrument was acknowledged before me by XXXX XXXXXXX on the 7th
day of November, 1990.
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NOTARY PUBLIC, STATE OF TEXAS
PRINTED NAME:
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COMMISSION EXPIRES:
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000
XXX XXXXX XX XXXXX )
COUNTY OF XXXXX )
This instrument was acknowledged before me by XXXXXX XXXXXX on the 7th
day of November, 1990.
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NOTARY PUBLIC, STATE OF TEXAS
PRINTED NAME:
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COMMISSION EXPIRES:
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