April 15, 2001
THIS LEASE, made this 15th day of April, 2001, by and between Xxxxxxx X.
Xxxx, first party (hereinafter called "Landlord"): and American Consumers, Inc.,
second party, (hereinafter called "Tenant"):
W I T N E S S E T H:
Premises
1. The Landlord, for and in consideration of the rents, covenants,
agreements and stipulations hereinafter mentioned, reserved, and contained, to
be paid, kept and performed by the Tenant, has leased and rented, and by these
presents does lease and rent, unto the said Tenant, and said Tenant hereby
agrees to lease and take upon the terms and conditions which hereinafter appear,
the following described property (hereinafter called "Premises"), to wit:
0000 Xxxxxxx 00
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000
Term
2. To have and hold the same for an initial term of five (5) years
beginning on the 28th day of April, 2001 and ending on the 30th date of April,
2006, at midnight, unless sooner terminated as hereinafter provided.
Renewal Term
3. Tenant is hereby granted three (3) options to renew this Lease. Each of
the options may be exercised by giving Landlord thirty (30) days written notice
prior to the expiration of the initial term or any renewal term.
The options are as follows:
MONTHLY
OPTION TERM RENTAL
------ ---- ------
1 May l, 2006 - April 30, 2014 $6,256.00
2 May 1, 2014 - April 30, 2019 $7,300.00
3 May 1, 2019 - April 30, 2024 $8,333.33
Rental
4. Tenant agrees to pay Landlord promptly on the first day of each month in
advance, during the term of this Lease a monthly rental of $5,200.00. The
obligation to pay rent shall begin May 1, 2001. Rental of $347.00 will be paid
for April 29th and April 30th. Tenant may not either remain behind in his
payments or routinely get behind in making a payment. More than one (1) late
payment within a twelve (12) month period will constitute default of the
agreement at the option of the landlord. All payments more than ten (10) days
late will bear an interest charge of 18% per annum until paid in full. In
addition, any late charges or other expenses resulting from the action or
inaction of the Tenant and which are paid by the Landlord would be charged back
to the Tenant in the next monthly rent payment.
Utility Bills
5. Tenant shall pay all utility bills, including but not limited to water,
sewer, gas, electricity, fuel, light and heat bills for the leased premises and
Tenant shall pay all charges for garbage collection services or other sanitary
services rendered to the leased premises or used by Tenant in connection
therewith. If Tenant fails to pay any of said utility bills or charges for
garbage collection or other sanitary services, Landlord may pay the same and
such payment may be added to the rental of the premises next due as additional
rental.
Maintenance of Premises
6. Landlord, at its expense and risk, shall maintain and repair (including
all necessary replacements) the roof, foundation, underground or otherwise
concealed plumbing, structural soundness of the exterior walls, excluding
windows and doors, and the exterior of the building in general; additionally,
Landlord shall maintain and repair but not clean the parking lot.
7. Tenant, at is expense and risk, shall maintain and repair, including all
necessary replacements, the interior plumbing, windows, window glass, plate
glass, doors, heating system, air/conditioning system and the interior of the
building in general. Notwithstanding the foregoing, Landlord warrants the
operation of the air conditioning system for a period of thirty, (30) days after
the commencement of this Lease. Additionally, should repairs to the air
conditioning system in excess of $500.00 be required within thirty (30) days of
the expiration of this Lease, Landlord shall be responsible for all repairs and
replacements of said air conditioning system in excess of $500.00.
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Tax Escalation
8. Tenant shall pay upon demand, as additional rental during the term of
this Lease and during the first and second renewal term thereof, the amount by
which all taxes (including, but not limited to, ad valorem taxes, special
assessments and any other governmental charges) on the premises for each tax
year exceeds all taxes on the premises for the tax year 2001. During the second
renewal term, tenant shall pay, as additional rental, the amount by which all
such taxes on the premises for the tax year 2014 of the renewal term exceeds all
such taxes on the premises for the first tax year 2013. In the event the
premises are less than the entire property assessed to such taxes for any such
tax year, the tax for any such year applicable to the premises shall be
determined by proration on the ratio that the rentable floor area of the
premises bears to the rentable floor area of the entire property assessed. If
the final year of the lease term fails to coincide with the tax year, then any
excess for the tax year during which the term ends shall be reduced by the pro
rata part of such tax year beyond the lease term. If such taxes for the year in
which the lease terminated are not ascertainable before payment of the last
month's rental, then the amount of such taxes assessed against the property for
the previous tax year shall be used as a basis of determining the pro rata
share, if any, to be paid by Tenant for that prortion of the last lease year.
Tenant's pro rata portion of increased taxes, as provided herein, shall be
payable within fifteen days after receipt of notice from Landlord as to the
amount due.
Destruction of, or Damage to Premises
9. If the premises are totally destroyed by fire, storm, lightening,
earthquake, or other casualties, this Lease shall terminate as of the date of
such destruction, and rental shall be accounted for as between Landlord and
Tenant as of that date. If the Premises are damaged but not wholly destroyed by
any of such casualties, Tenant shall have the option to: (a) terminate the
lease, or (b) xxxxx rent in such proportion of use of Premises as has been
destroyed and to require Landlord to restore the Premises to substantially the
same condition as before the damage occurred, as speedily as practicable.
Indemnity
10. Tenant agrees to indemnify and save Landlord harmless against all
claims for damages to persons or property by reason of the use and occupancy of
the leased premises, including any claims by Tenant's agents and employees,
Tenant's customers and invitees, and any and all other persons coming on or
about the leased premises during the term of this Lease or any renewal thereof.
Landlord shall be responsible for claims for damages to persons or property in
the parking lot if such claim was not caused by Tenant. Xxx. Xxxxxxx X. Xxxx
will be listed as an additional insured under the Tenant's General Liability
Policy and that on an annual basis when the policy is renewed be provided with a
copy of the policy renewal. She shall be notified at any time the policy is not
in force. The General Liability Policy will be for an amount not less than
$1,000,000.00.
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Governmental Orders
11. Landlord agrees, at her own expense, to promptly comply with all
requirements of any legally constituted public authority made necessary by
reason of Tenant's occupancy of said premises. It is mutually agreed, however,
between Landlord and Tenant, that if in order to comply with such requirements,
the cost to Landlord shall exceed a sum equal to six (6) month's rent, then the
Landlord is privileged to terminate this Lease by giving written notice of
termination to the other party which termination shall become effective sixty
(60) days after receipt of such notice unless party receiving such notice of
termination shall, before termination becomes effective, pay to party giving
notice all cost of compliance in excess of six (6) month's rent, or secure
payment of said sum in manner satisfactory to the party giving notice.
Condemnation
12. If the whole of the leased premises, or such portion thereof as will
make the premises unusable for the purposes therein leased, 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 from the date when possession
thereof is taken by public authorities and rental shall be accounted for as
between Landlord and Tenant to recover compensation and damage caused by
condemnation from the condemner. It is further understood and agreed that
neither the Tenant nor Landlord shall have any rights in any award made to the
other by any condemnation authority notwithstanding the termination of the lease
as herein provided.
Assignment and Subletting
13. Tenant shall have the right and option to sublet any portion of or all
of the leased premises, upon written permission of the Landlord first obtained,
which permission shall not be unreasonably withheld by Landlord.
Removal of Fixtures
14. Tenant may (if not in default hereunder) prior to the expiration of
this lease, or any extension thereof, remove all its fixtures and equipment
provided Tenant repairs all damage to premises caused by such removal.
Cancellation of Lease by Landlord
15. It is mutually agreed that in the event that the Tenant shall default
in the payment of rent, including additional rent, herein reserved, when due,
and fails to cure said default within ten (10) days after written notice thereof
from Landlord; or if Tenant shall be in default in performing any of the terms
or provisions of this Lease other than the provision requiring the payment of
rent, and fails to cure such default within thirty (30) days after the date of
receipt of written notice of default from Landlord; or if Tenant is adjudicated
bankrupt or if a permanent receiver is appointed for Tenant's property and such
receiver is not removed then Landlord reserves the right to terminate this Lease
upon thirty (30) days written notice to Tenant.
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Signs
16. Tenant shall be permitted to place such signs on the leased premises as
it deems necessary.
Entry for Carding, Etc.
17. Landlord may card premises "For Rent" or "For Sale" thirty (30) days
before the termination of this Lease unless the Lease has been renewed as
hereinbefore provided. Landlord may enter the premises at reasonable hours to
exhibit same to prospective purchasers or tenants and to make repairs required
of Landlord under the terms hereof, or to make repairs to Landlord's adjoining
property, if any.
Effect of Termination of Lease
18. No termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Landlord's right to collect rent for
the period prior to termination thereof.
Mortgage's Rights
19. If disclosed to Tenant in writing by Landlord, Tenant's rights shall be
subject to any bona fide mortgage or deed to secure debt which is now, or may
hereafter be, placed upon the premises by Landlord.
No Estate in Land
20. This contract shall create the relationship of Landlord and Tenant
between the parties hereto; no estate shall pass out of Landlord. Tenant has
only a usufruct, not subject to levy and sale, and not assignable by Tenant
except by Landlord's consent.
Holding Over
21. If Tenant remains in possession of premises after expiration of the
term hereof, with Landlord's acquiescence and without any express agreement of
parties, Tenant shall be a tenant at will at rental rate in effect at end of
this Lease; and there shall be no renewal of this Lease by operation of Law.
Rights Cumulative
22. All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative but not restrictive to those given by law.
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Service of Notice
23. If to Landlord: Xxxxxxx X. Xxxx, P. O. Xxx 00, Xxxxxx, Xxxxxxxxx 00000.
If to Tenant: American Consumers, Inc., X.X. Xxx 0000, 000 Xxxxxx Xxxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxxxxx, President. Also a
copy to Xxxx X. Xxxxx, Xxxx, Xxxxxxx & Xxxxxxxx, P.C., 0000 XxxXxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
Waiver of Rights
24. No failure of Landlord or Tenant to exercise any power or right given
them hereunder, or to insist upon strict compliance by either with their
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's or Tenant's right to
demand exact compliance with the terms hereof.
Time of Essence
25. Time is of the essence of this agreement.
Definitions
26. "Landlord" as used in this Lease shall include first party, their
heirs, representative, assigns and successors in title to the premises. "Tenant"
shall include second party, its heirs and representative, and if this Lease
shall be validly assigned or sublet, shall include also Tenant assignees or
subleases, 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 fit the particular parties.
Estoppel Certificate
27. (a) Tenant shall at any time upon not less than ten (10) days prior
written notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing: (1) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect), and
the date to which the rent and other charges are paid in advance, if any, and
(2) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
(b) At Landlord's option, Tenant's failure to deliver such statement within
such time shall be a material breach of this Lease or shall be conclusive upon
Tenant (1) that this Lease is in full force and effect, without modification
except as may be represented by Landlord, (2) that there are no uncured defaults
in Landlord's performance, and (3) that not more than one month's rent has been
paid in advance or such failure may be considered by Landlord as a default by
Tenant under this Lease.
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28. This Agreement shall be interpreted and construed in accordance with
the Laws of Tennessee. That venue and jurisdiction shall rest with the
appropriate court(s) in Xxxxxx County.
29. If any legal action or arbitration or other proceeding is brought for
the enforcement of this Agreement or cause of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
agreement, the prevailing party or parties shall be entitled to recover
reasonable attorney's fees and other costs incurred in the proceeding. That
venue and jurisdiction shall rest with the appropriate court(s) in Xxxxxx
County.
Entire Agreement, Modification
This Lease contains the entire agreement of the parties hereto and no prior
or contemporaneous representations, inducements, promises or agreements, oral or
otherwise, between the parties, not embodied herein, shall be of any force or
effect, regardless of the course of dealing of the parties hereto. This Lease
may only be modified or amended in writing, signed by the parties hereto.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, the day and year first above written.
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