LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into effective this 31st day of
May, 1996, by and between XXXXXXXX X. XXXXXXXXXXX, hereinafter referred to as
"Lessor", and AARON'S AUTOMOTIVE PRODUCTS, INC., hereinafter referred to as
"Lessee".
In consideration of the mutual convenants herein contained and agreed to be
kept, the Lessor does hereby lease to the Lessee and the Lessee does hereby
lease from the Lessor, the Premises on the following terms, conditions, and
agreements:
1. PREMISES. The Premises are land and a commercial structure for
manufacturing and warehouse/distribution use located in the 0000 XXXXX XX
XXXXX XXXXXXX XXXXXXXX XXXXXX, XXXXXXXXXXX, XXXXXXXX which building has an
aggregate of approximately 200,000 square feet and the land has an aggregate of
approximately 573,088 square feet and said Premises being further delineated as
Exhibit "A".
2. TERM. The initial term of this Lease shall be for a period of one
hundred twenty (months) beginning on November 1, 1996 and terminating on October
31, 2006, unless terminated prior thereto as provided herein. The Lessee may
extend the term of this Lease for sixty (60) months by providing written notice
to Lessor at least six (6) months prior to expiration of the initial term,
provided the Lessee is in full compliance with the terms and conditions of this
Lease. The term of this Lease shall include the initial term and any exercised
renewal term. If the premises is not ready for occupancy by November 1, 1996,
then the lease term shall not commence until the premises is ready for
occupancy. At that time, rent will be prorated for any portion of a month, and
the commencement date of the lease term will be automatically changed to the
first day of the next calendar month.
3. RENTAL. The rental payments for the initial term hereof shall be the
monthly sum of Thirty-Five Thousand Eight Hundred Thirty-Three Dollars and no
cents ($35,833.00) from November 1, 1996 through October 31, 2000. From
November 1, 2000, through October 31, 2003, the monthly sum shall be determined
by multiplying the rate Thirty-Five Thousand Eight Hundred Thirty-Three Dollars
and no cents ($35,833.00) by a fraction, the numerator of which is the "Consumer
Price Index", published by the United States Department of Labor, Bureau of
Labor Statistics, All Consumers (CPI-U), all items, (1982-84=100) (or if that
Index is not available then an available Index published by the Bureau or its
successors, of if none, by any other instrumentality of the United States or the
State of Missouri), (hereinafter "CPI-U") for October, 2000, and the denominator
of which is the CPI-U for November, 1996. If there is no increase in the CPI-U
for this period, the monthly rent payments shall remain the same as the previous
period but at no time shall the maximum increase for the CPI-U be greater than
one (1) percent annually. From November 1, 2003, through October 31, 2006, the
monthly sum shall be
determined by multiplying the rate Thirty-Five Thousand Eight Hundred Thirty-
Three Dollars and no cents ($35,833.00) by a fraction, the numerator of which is
the CPI-U for October, 2003, and the denominator of which is the CPI-U for
November, 1996. If there is no increase in the CPI-U for this period, the
monthly rent payments shall remain the same as the previous period but at no
time shall the maximum increase for the CPI-U be greater than one (1) percent
annually, for the period from November, 1996, through October, 2000, and three
(3) percent annually, for the period from November, 2000, through October, 2003.
If the Lessee exercises the option to extend the lease term a period of sixty
(60) months, from November 1, 2006, through October 31, 2009, the monthly sum
shall be determined by multiplying the rate Thirty-Five Thousand Eight Hundred
Thirty-Three Dollars and no cents ($35,833.00) by a fraction, the numerator of
which is the CPI-U for October, 2006, and the denominator of which is the CPI-U
for November, 1996. If there is no increase in the CPI-U for this period, the
monthly rent payments shall remain the same as the previous period but at no
time shall the maximum increase for the CPI-U be greater than one (1) percent
annually, for the period from November, 1996, through October, 2000, and three
(3) percent annually, for the period from November, 2000, through October, 2006.
From November 1, 2009, through October 31, 2011, the monthly sum shall be
determined by multiplying the rate Thirty-Five Thousand Eight Hundred Thirty-
Three Dollars and no cents ($35,833.00) by a fraction, the numerator of which is
the CPI-U for October, 2009, and the denominator of which is the CPI-U for
November, 1996. If there is no increase in the CPI-U for this period, the
monthly rent payments shall remain the same as the previous period but at no
time shall the maximum increase for the CPI-U be greater than one (1) percent
annually, for the period from November, 1996, through October, 2000, and three
(3) percent annually, for the period from November, 2000, through October, 2009.
All installments of rent shall be payable in advance on the first day of each
month of this Lease and all payments shall be made to Lessor at 0000 X.
Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000. Additional rent shall include other
charges and expenses to be paid or reimbursed by Lessee as provided for herein.
Any rent or additional rent not paid within five (5) days of due date shall bear
a late charge equal to ten percent (10%) of the amount due.
4. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution of
this Lease a sum equal to Thirty-Five Thousand Eight Hundred Thirty-Three
Dollars and no cents ($35,833.00), as security for Lessee's faithful performance
of Lessee's obligations under this Lease. If Lessee fails to pay the Rent or
any other charges due hereunder, or otherwise defaults under this Lease, Lessor
may use, apply or retain all or any portion of the Security Deposit for the
payment of any amount due Lessor or to reimburse or compensate Lessor for any
liability, cost, expense, loss or damage (including attorneys' fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or
any portion of the Security Deposit, Lessee shall within ten (10) days after
written request therefor deposit moneys with Lessor sufficient to restore the
Security Deposit to the amount required above.
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5. TRIPLE NET LEASE. It is the intent of the parties that this be a
triple net lease with Lessee bearing all costs of occupancy, repair and
maintenance of the Premises, including but not limited to taxes, insurance,
utilities, repairs, maintenance, and structural repairs, excluding only Lessor's
obligation to (i) make payments on Notes payable by Lessor secured by Deeds of
Trust on the Premises, (ii) restore the Premises as provided in Xxxxxxxxx 00,
(xxx) pay those costs related to a breach by Lessor of its representations and
warranties herein, and (iv) pay for those capital improvements which Lessor
elects at its sole discretion to make to the Premises, subject to full or
partial reimbursement by Lessee as provided in Section 12(c).
6. LESSOR'S REPRESENTATIONS. The Lessor represents and warrants the
following:
(a) Lessor holds absolute and indefeasible title in fee simple to the
Premises;
(b) Lessor is lawfully seized of the Premises and during all of the
term hereof, Lessee's possession of the Premises shall not be disturbed by
lawful acts of third parties claiming title to or a right to the possession
of the Premises;
(c) The Premises is properly zoned for the operation of Lessee's
current use of the Premises as a manufacturing and storage facility and
has legal access to and from a publicly dedicated street; and
(d) The Premises has access to adequate utility services for Lessee's
proposed use of the Premises as a manufacturing plant or
warehouse/distribution center.
(e) The final construction of the new building will be in adequate
physical condition to allow manufacturing or distribution by the Lessee.
7. TAXES. Lessee shall pay before delinquency thereof any and all
personal and real property taxes assessed against the Premises and the property
of Lessee contained in or on the Premises.
8. UTILITIES. Lessee agrees to promptly pay all gas, electric, telephone,
sewer, trash, water, and any other utility charges which may become payable
during the continuation of this Lease for such utilities used in or on the
Premises.
9. USE AND OCCUPANCY.
(a) The Premises are to be used in Lessee's business for
remanufacturing of automobile parts including transaxles and engines and or for
any other lawful purpose.
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(b) Lessee covenants that no waste or damage shall be committed upon
or to the Premises; that the Premises; shall not be used for any unlawful
purpose nor in a manner creating a nuisance for adjoining tenants; and that
no violation of any city, county, state or federal law, rule or regulation
shall be permitted or committed thereon, including without limitation any
Environmental Laws (as hereinafter defined). Lessee shall not allow any
rubbish or refuse to accumulate or any fire hazard to exist on the
Premises. Lessee agrees to obey and conform to all laws, ordinances,
rules, regulations or orders of the city, county, state and federal
governments and all public utilities.
10. HAZARDOUS SUBSTANCES.
(a) Lessee shall not generate, use or store any substances designated
as, or containing components designated by any governmental agency as
hazardous, dangerous, toxic or harmful, and/or subject to regulations under
federal, state or local law, regulations or ordinance on or around the
Premises, except to the extent used (i) in normal quantities and (ii) in
compliance with all Environmental Laws. Lessee shall not install any
underground storage tanks on the Premises without prior written consent of
Lessor, which may be withheld in Lessor's sole discretion. Lessee shall be
fully and completely liable to Lessor and shall indemnify, defend and hold
Lessor harmless from any and all cleanup costs and any and all other
charges, fees (including attorneys' and consultants' fees) or penalties
relating to the use, disposal, transportation, generation or sale by Lessee
of hazardous substances on the Premises.
(b) Lessee further agrees to indemnify, defend and hold harmless
Lessor its employees, officers and directors, and Lessor's successors,
assigns and successors in interest to the Premises or any part thereof,
from and against any and all liability, losses, expenses (including
attorneys' and consultants' fees), damages, penalties, costs, actions,
claims, judgments, fines, response costs, cleanup costs and oversight costs
which may be imposed upon, incurred by, or asserted against Lessor, its
employees, officers and directors, and Lessor's successors, assigns and
successors in interest to the Premises or any part thereof, by any person
or entity (including, but not limited to, a governmental entity), arising
out of or in connection with any Environmental Conditions on or off the
Premises, caused or created by Lessee and/or arising out of or in
connection with Lessee's violation or failure to comply with any
Environmental Laws (as hereinafter defined) at any time throughout Lessee's
occupancy of the Premises whether before or after the date of this Lease,
except to the extent caused by Lessor or relating to an existing condition.
Such indemnification applies whether or not such liability, damages,
losses, expenses (including attorneys' and consultants' fees), penalties,
costs, actions, claims, judgments fines, response costs, cleanup costs and
oversight costs arise under any theory of strict liability, whether under
common law or under any federal, state or local law and whether arising
from the actions of Lessee or any of
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its employees, agents, contractors or licensees, except to the extent
caused by Lessor or relating to an existing condition.
(c) "Environmental Conditions" means any and all conditions in, on,
under or resulting from the soil, surface water, air, ground water and
stream sediments on, under or above the Premises that could require
remedial action or result in claims, demands or liabilities by third
parties against the owner or operator of the Premises.
(d) "Environmental Laws" shall mean all federal, state or local
environmental laws, ordinances, rules, regulations, requirements, licenses,
permits, and acts, and all regulations promulgated thereunder, whether now
existing or hereafter enacted, including, but not limited to: the Federal
Water Pollution Control Act, 33 U.S.C. Sections 1251 ET SEQ., as amended
("FWPCA"); the Clean Air Act, 42 U.S.C. Sections 741 ET SEQ., as amended
("CAA"); the Resource Conservation and Recovery Act, 42 U.S.C. Sections
6901 ET SEQ., as amended ("RCRA"); The Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Sections 9601 ET seq.,
as amended ("CERCLA") The Superfund Amendments and Reauthorization Act, as
amended ("XXXX"); the Clean Water Act, as mended ("CWA"); the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 ET SEQ., as amended
("TSCA"); the Occupational Safety and Health Act, 29 U.S.C. Sections 651 ET
SEQ., as amended ("OSHA"); the Safe Drinking Water Act, 42 U.S.C. Section
300(f) ET SEQ., as amended; the Federal Insecticide, Fungicide and
Rodentcide Act, 7 U.S.C. Sections 136, ET SEQ., as amended ("FIFRA"); the
Hazardous Material Transportation Act; and the Marine Protection, Research
and Sanctuaries Act.
(e) Lessor represents and warrants that to the best of its knowledge
and belief the Premises have never been used for the treatment, handling,
storage, or disposal of any hazardous waste or substance or other toxic
chemicals or hazardous conditions; and no such hazardous dangerous
conditions, wastes, chemicals or products now exist on the Premises.
(f) Lessor further represents and warrants that in the event any of
the above are ever discovered to exist on the Premises which predate
closing, that they shall indemnify and hold Lessee and its successors and
assigns harmless and shall correct and cure some as soon as reasonably
possible after written notice, and pursuant to all governmental agency
requirements.
11. ASSIGNMENT AND SUBLETTING. The Lessee shall not assign or sublet the
Premises, or any part thereof, without obtaining the prior written approval of
the Lessor which consent shall not be reasonably withheld; and, should such
consent be given, the Lessee shall remain liable for the performance of the
terms and conditions and agreements under this Lease during the term of this
Lease (including any renewal term) as though such assignment or subletting had
not been made. Lessee shall reimburse Lessor for Lessor's reasonable costs of
approving documents said transfer, not to exceed One
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Thousand Dollars ($1,000) per requested assignment or subletting. Lessor may
assign this Lease to any subsequent owner of the Premises without consent of
Lessee.
12. CONDITION OF PREMISES, REPAIRS, ALTERATIONS AND CAPITAL IMPROVEMENTS.
(a) Prior to the term of this Lease as defined in Section 2, the
Lessor shall improve the premises at its own expense in accordance with the
LETTER OF INTENT dated April 22, 1996, a copy of which is signed by the
parties and attached hereto and made a part thereof as Exhibit "B". The
improvements shall be made in conformance with all the laws, ordinances,
rules and regulations of all public authorities having jurisdiction over
the premises. Lessor shall furnish to Lessee as soon as possible after
preparation, copies of all architectural drawings and specifications
covering said improvement.
(b) Lessee reserves the right to request additional items as defined
in Exhibit "B" to be added by the Lessor to the premises prior to the
Lessee taking possession, and because such additional items are an added
capital expense to the Lessor, the Lessee understands and agrees that the
lease rate will increase as a result of these expenses. Lessee must
exercise this right to request any additional items by September 1, 1996,
and the request shall be in writing. Lessor shall not increase the initial
monthly lease rate by an amount greater than twelve (12) percent of the
cost of the additional items divided by twelve (12) and the increase shall
be done as an amendment pursuant to Section 30 of this Agreement.
(c) Lessee acknowledges that the improvements for the premises to be
made by the Lessor as defined in Exhibit "B" only include an allowance of
five thousand dollars ($5,000) for rock excavation. Should additional rock
be required to be excavated, Lessee agrees that there will be an increase
in the initial monthly lease rate. The Lessor agrees that the increase
shall not be in an amount greater than twelve (12) percent of the cost of
the rock excavation divided by twelve (12) and the increase shall be done
as an amendment pursuant to Section 30 of this Agreement.
(d) Lessee's taking possession shall be conclusive evidence against
it that the Premises were in good order and in satisfactory condition when
Lessee took possession hereunder. Lessee agrees to make ALL interior,
exterior and structural repairs to the buildings and land comprising the
Premises, including without limitation all necessary repairs to (i) gas,
electrical, plumbing, air conditioning, heating, lighting, ventilating,
fire sprinkler, fire alarm, smoke alarm, and other safety alarm equipment
and/or systems as are installed or as may be installed in or on the
Premises, (ii) all connections from existing utilities to the buildings on
the Premises, and (iii) the roof, ceilings, interior and exterior walls,
floors, foundations, windows, doors, skylights, signs, driveways, parking
lots, fences,
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retaining walls, sidewalks, and landscaping in, on, about or adjacent to
the Premises. Lessee agrees to replace all broken glass, damaged or
destroyed in any manner whatsoever in the Premises.
(e) Lessee agrees not to make, or cause to have made, any alterations
or improvements upon the Premises in excess of ten thousand dollars
($10,000) without first having submitted plans and specifications for such
proposed alterations or improvements to Lessor and having obtained Lessor's
prior written approval of same. All repairs, alterations, additions, and
improvements to the leasehold, except trade fixtures installed by the
Lessee which may be removed without damage to the Premises, shall become
the property of Lessor and shall remain upon and be surrendered with the
Premises at the expiration of this Lease or a sooner termination thereof,
unless otherwise agreed to by the parties in writing.
(f) Lessor shall make, in its sole discretion, capital improvements
to the Premises which are both essential to Lessee's operations and
appropriate for the continued use of the Premises as it is proposed to be
operated, such as the installation of a new roof at the expiration of its
useful life (the costs and expenses incurred by Lessor in connection
therewith shall be referred to herein as "Capital Expenditures"). Promptly
after the completion of any such capital improvements, Lessee shall be
responsible for paying to Lessor, within twenty (20) days after receiving
written notice from Lessor, a portion of the Capital Expenditures equal to
the total Capital Expenditures multiplied by the remaining period of time
in the term of this Lease divided by the useful life of the improvement at
issue (using the Internal Revenue Code guidelines as a basis for
determining such useful life if the parties are not able to agree
otherwise). The Lessee shall also pay upon the subsequent exercise of each
renewal term a portion of the Capital Expenditures multiplied by the number
of years in such renewal term divided by the useful life of the
improvement.
(g) Lessor represents that upon completion of the new building and
prior to occupancy by the Lessee that the building is in compliance with
all city, county, and state building codes.
13. SIGNS. Lessee shall have the right to erect and maintain customary
and ordinary signs upon the walls of the Premises for advertising, except that
Lessee may not paint signs on walls, roofs, or other area of the Premises
without Lessor's prior written consent. The Lessee shall indemnify and hold
harmless the Lessor from all liability arising to any and all persons
whomsoever, whether for personal injuries or otherwise, by reason of the
erection, maintenance, operation or condition of any sign or signs or any part
thereof, or any device or appliance used in connection therewith, and from any
damage or injury resulting to any persons whomsoever from defects in or
defective condition of that portion of the Premises upon which said signs may be
installed. Any signs placed upon the
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Premises by Lessee may be removed at the termination of this Lease and all
damage done thereby shall be repaired at Lessee's expense.
14. LESSOR'S NON-LIABILITY FOR DAMAGE BY FIRE OR WATER, LIABILITY OF
LESSEE AND INSURANCE.
(a) The Lessor shall not be liable or responsible to any person or
persons whomsoever for any damage to person, goods, wares, merchandise or
other property in or about the Premises which is caused or occasioned by
fire or by the breaking, overflowing or leaking of roofs, pipes or walls of
the building, or for any damage suffered by any acts whatsoever, except for
those damages caused by Lessor's willful acts or gross negligence.
(b) The Lessee agrees to be responsible for any damage to the
property of Lessor which may result from any use of the Premises or any act
done thereon by the Lessee, or any person coming or being upon the Premises
by the license of the Lessee, express or implied, and also to save the
Lessor harmless from any liability to any person, for damage to person or
property resulting from such cases, and to protect against such liability
by purchasing and maintaining Public Liability Insurance for the benefit of
Lessee and the Lessor in coverage of not less than $1,000,000 per
occurrence/$3,000,000 aggregate. Lessee agrees to furnish Lessor a
certificate issued by a insurance carrier or carriers listed in the "Best
Guide" with a "B" rating or above, showing such insurance in force and to
provide Lessor with a copy of said policies. The policy or policies shall
name Lessor as an "additional insured" and shall include coverage for
liability assumed under this Lease as an "insured contract" for the
performance of Lessee's indemnity obligations under this Lease and, at
Lessor's request, shall include the "Amendment of the Pollution Exception"
for damages caused by heat, smoke or fumes from a hostile fire. The limits
of said insurance required by this Lease or as carried by Lessee shall not,
however, limit the liability of Lessee nor relieve Lessee of any obligation
under this Lease.
(c) Lessee agrees to purchase property and casualty insurance at
replacement cost of the Premises, including extended risk. Lessee agrees
to furnish Lessor a certificate issued by an insurance carrier or carriers,
acceptable to Lessor, showing such insurance in force and non-cancelable
without at least ten (10) days advance written notice to Lessor, and to
provide Lessor with a copy of said policies upon request. The policy or
policies shall name Lessor as an insured party.
15. LESSEE TO INDEMNIFY LESSOR. The Lessee agrees to hold the Lessor free
and harmless from any liens, judgments or encumbrances created or suffered by
the Lessee, and from any and all liability, penalties, losses, damages, costs
and expenses, causes of action, claims or judgments arising from injury during
said term to persons or property of any nature occasioned by an act or omission
of the Lessee, or its employees, agents, or servants, subtenants, or
contractors, and growing out of the occupancy of the
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Premises by Lessee, and also against all legal costs and charges, including
attorney fees, reasonably incurred in and about such matters, and the defense of
any action arising out of the same, or in discharging the Premises or any part
thereof from any and all liens that may be placed thereon for charges incurred
by Lessee.
16. LESSOR'S RIGHT TO INSPECT, RESERVED RIGHTS. Lessor expressly reserves
the following rights: (a) to enter the Premises at any reasonable time during
business hours to examine the Premises, to observe the manner of Lessee's
operations on the premises, or to make such repairs, additions or alterations as
the Lessor may deem necessary for the improvement or preservation of the
Premises, as long as Lessor does not unreasonably interfere with the business
operations of the Lessee, but Lessor assumes no obligation to make examinations
or repairs to the Premises; and (b) to enter the Premises and display a sign,
"For Rent", at any time within one hundred eighty (180) days before the
expiration of this Lease, or any extension thereof, and to maintain the same as
placed; and (c) during or after the time Lessee abandons or vacates the Premises
for reoccupancy. The exercise of any reserved right herein stated by Lessor,
shall never be deemed an eviction or disturbance of Lessee's use and possession
of the Premises and shall never render Lessor liable in any manner to Lessee or
to any other person.
17. FIRE CLAUSE.
(a) If the Premises are partially damaged by fire or other casualty,
not occurring through Lessee's fault, and such damage can be repaired
within one hundred eighty (180) days after the date of such occurrence, the
Lease shall remain in full force and effect, and the Lessor shall promptly
repair such damage at Lessor's expense, and in that event there shall be
proportionate abatement of rent for so much of the Premises and may be
untenantable during the period of repair or restoration unless the Premises
were damages through Lessee's fault.
(b) If in the opinion of a registered architect or engineer appointed
by the Lessor, the Premises are damaged by fire or other casualty to such
an extent as to make them untenantable for a period of one hundred eighty
(180) days or more from the date of such occurrence, and such damage cannot
be repaired or the Premises restored within said time, this Lease shall
terminate at the option of either the Lessor or Lessee upon written notice
given within thirty (30) days after receiving said architect's or
engineer's opinion. If damage is caused by Lessee's fault, then Lessee
shall be responsible for all repairs and rent for the remaining term of the
Lease.
18. DAMAGE NEAR END OF TERM. Notwithstanding Paragraph 17(a), if at any
time during the last six (6) months of the initial term or any renewal term of
this Lease there is damage to the Premises for which the cost to repair exceeds
one (1) months' rent, whether or not an insured loss, either Lessor or Lessee
may option, terminate this Lease effective sixty (60) days following the
occurrence of such damage by giving written notice to the other party within ten
(10) days after the date of the occurrence of such damages
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unless Lessee has prior thereto exercised any option Lessee may have to extend
this Lease.
19. CONDEMNATION. It is mutually agreed by the parties that in case the
whole or any part of the Premises shall be taken by the City, State or other
public authority for any public use and which renders the Premises reasonably
unusable by Lessee, then this Lease shall terminate from the time when
possession of the whole or of the part so taken shall be required for such
public use, and Lessee shall pay all rents prorated to the date when possession
is taken; and, the Lessee shall not claim or be entitled to any part o the award
to be made for damages for such taking for public use; and, such taking shall
not be deemed a breach of any covenant for quiet enjoyment by Lessor herein;
provided, further, that if only a portion of the Premises is taken which does
not materially interfere with Lessee's use of the Premises, then the Lease shall
continue as to the remaining portion of the Premises not so taken, in which case
the obligations and liabilities of the Lease shall continue in all respects
notwithstanding such partial taking for public use.
20. ABANDONMENT AND SURRENDER OF PREMISES. If Lessee shall abandon or
vacate the Premises before the end of the term without an intent to return, or
any other event shall happen entitling Lessor to take possession thereof, Lessor
may take possession of the Premises and relet the same without any action being
deemed an acceptance of a surrender of this Lease, or in any way terminating the
Lessee's liability hereunder and the Lessee shall remain liable for payment of
the rent herein reserved, less the net amount received by the Lessor from
reletting (after the deduction of any expenses incident to such possession and
reletting). The Lessee shall, upon the expiration or termination of this Lease
for any reason whatsoever, surrender to the Lessor the building and building
equipment then upon the Premises, together with all alterations and replacements
thereof then on the Premise, in good order, condition and repair, except for
damage due to reasonable wear and tear, casualty other than a casualty caused by
Lessee, or condemnation. Except as provided in Paragraph 12, title to all of
the Lessee's trade fixtures, furniture and equipment shall remain in the Lessee,
and, upon expiration on other termination of this Lease, the same shall be
removed and any resultant damage to the Premises shall be repaired by and at the
expense of the Lessee; provided, however, that if, upon any expiration or
termination of this Lease, the Lessee shall be delinquent or in default under
any provisions hereof, the Lessee shall not, without the Lessor's consent
expressly given in writing, be entitled to remove any such trade, fixtures,
furniture or equipment unless and until such delinquency or default shall have
been cured, and if such delinquency or default shall have been cured, and if
such delinquency or default shall not have been cured by the Lessee in thirty
(30) days after the date of such expiration or termination, all such trade
fixtures, furniture and equipment of the Lessee shall, at the Lessor's option be
and become the absolute property of the Lessor. Lessor shall, upon Lessee's
request and subject to Lessee being in full compliance with all terms,
conditions and agreements in this Lease, execute such landlord waivers as Lessee
may reasonably request regarding Lessee's trade fixtures and personal property
which are consistent with the terms of this Lease.
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21. TENURE AT EXPIRATION. If the Lessee shall occupy Premises with the
consent of the Lessor after the expiration of the Lease, or any extension
thereof, and the rent is accepted from said Lessee, such occupancy and payment
shall be construed as an extension of this Lease for the term of one (1) month
only from the date of such expiration, and occupation thereafter shall operate
to extend the term of this Lease for one (1) month at a time, unless other terms
of such extension are endorsed hereon in writing and signed by the parties
hereto. If such occupancy continues without the consent of the Lessor, Lessee
shall pay to Lessor as liquidated damages one hundred fifty percent (150%) of
the amount of rent specified in this Lease for the first sixty (60) days which
Lessee retains possession of the Premises, or any part thereof, after
termination of the term by lapse of time or otherwise, and thereafter the
liquidated damages shall be double of the rent specified in the Lease. Lessor's
receipt of such liquidated damages shall not be construed as a consent to
Lessee's holdover.
22. LESSOR'S REMEDIES, SECURITY AND COSTS IN ACTION. Upon Lessee's
failure to pay any installment of rent or other charges when due or if Lessee
shall fail to observe and perform any of the other conditions, agreements, or
provisions of this Lease, it shall be lawful, upon compliance with the
applicable notice requirements (which shall be 10 days for monetary defaults and
30 days for nonmonetary defaults) and without legal process, for Lessor to
accelerate Lessee's obligations under the Lease, re-enter and repossess
Premises, to remove all persons therefrom and to take exclusive possession of
and remove all property therefrom,, and any and all rights of Lessee as a tenant
shall immediately cease and terminate. All property of Lessee which may be at
any time during the term of this Lease in or upon Premises, whether exempt from
execution or not, shall be bound by and subject to a lien for the payment of the
rent herein reserved and for any damages arising from any breach by Lessee of
any of the covenants or agreements of this Lease to be performed by Lessee. In
case default be made in the payment of any installment of rent or other charges,
or any part or parts thereof, when the same becomes due, and if said default
continues for ten (10) days after written notice thereof be given by Lessor to
Lessee, Lessor may take possession of said property or any parts or parts
thereof and sell or cause the same to be sold at public or private sale, with or
without notice, to the highest bidder for cash, and apply the proceeds of said
sale toward the costs thereof and then toward the debt and/or damages as
aforesaid. The remedies set forth in this article shall be in addition to any
and all other rights and remedies of Lessor, either under the terms of this
Lease or otherwise. The provisions hereof shall not, however, be construed so
as to prevent Lessee from conducting his business in a normal way prior to
default hereunder. The failure on the part of the Lessor to re-enter or
repossess the Premises or to exercise any of his rights hereunder upon any
default, shall not be deem a waiver of any of the terms and conditions of this
Lease and shall not preclude the Lessor from exercise of any such rights upon
any subsequent occurring default or defaults. Lessor shall be entitled to all
rights at law or in equity, including rights of sale under the Missouri Uniform
Commercial Code, and to recover damages for failure to pay on any breach of this
Agreement, including court costs and reasonable attorneys' fees. Lessee
expressly waives any common law requirements of notices and procedures as to
forfeitures of leasehold interests, and agrees that the terms of this agreement
shall govern.
11
23. DECLARATION OF FORFEITURE. Any failure to pay each month's rent or
other charges when due, or to keep and perform any of the covenants or
agreements herein by Lessee shall produce a forfeiture of this Lease, provided
Lessor must give Lessee at least ten (10) days' prior written notice of a
monetary default or thirty (30) days' prior written notice of a nonmonetary
default and opportunity to cure, unless the nature of the alleged nonmonetary
default requires more than thirty (30) days to cure, in which case Lessee shall
be granted such reasonable time as is necessary to cure as long as Lessee has
undertaken and diligently proceeded to cure the default. If at the expiration
of said time Lessee is still in default, said forfeiture shall be in full force
and effect. No waiver of any forfeiture by acceptance of rent or otherwise
shall waive any subsequent cause of forfeiture or breach of the terms and
conditions of this Lease, nor shall any consent by said Lessor to any assignment
of the Premises, or any part thereof, or if Lessee shall sublet Premises or any
part thereof, be held waived or release said Lessee or any assignee or sublessee
from any of the foregoing conditions or convenants as against it or them, but
said Lessee or any assignee or sublessee shall be expressly subject thereto.
Before Lessee may declare Lessor in default in its obligations hereunder, it
must give Lessor thirty (30) days' prior written notice and opportunity to cure,
unless the nature of the alleged default requires more than thirty (30) days to
cure, in which case Lessor shall be granted such reasonable time as is necessary
to cure as long as Lessor has undertaken and diligently proceeded to cure the
default.
24. WAIVER OF BREACH NOT WAIVER OF SUBSEQUENT BREACHES. To be valid a
waiver must be in writing and executed by the party making the waiver. Any
waiver by the Lessor or the Lessee of any breach of this Lease or any terms,
conditions or promises herein contained shall not be or be construed to be a
waiver of any subsequent breach of the same or any other term, condition or
promise herein, and the payment of rent hereunder by the Lessee and acceptance
by the Lessor shall not be or be construed to be a waiver of any breach of the
terms, conditions or promises herein, except as to the particular installment
of rent so paid and accepted.
25. BANKRUPTCY AND FORFEITURE. To more effectually secure the Lessor
against loss of the rent and other payment herein provided to be made by Lessee,
it is agreed as a further condition of this Lease that the filing of any
petition in bankruptcy or insolvency by or against the Lessee, or the
adjudication in bankruptcy of the Lessee or the appointment of a receiver for
Lessee by any court shall be deemed a breach of this Lease, and thereupon,
without entry or other action by the Lessor, this Lease shall become and be
terminated; and notwithstanding any other provisions of this Lease, the Lessor
shall forthwith upon such termination be entitled to recover the rent reserved
in this Lease for the term hereof, less the fair rental value of the Premises
for the remainder of the term.
26. NON-LIABILITY OF LESSOR. It is agreed that Lessor shall not be liable
to Lessee or any other person on the Premises for any damage either to person or
property, except for Lessor's willful conduct or gross negligence. Lessor shall
not be under any responsibility or liability in any way whatsoever for the
quality, quantity, impairment,
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interruption, stoppage, or other interference with the services involving water,
heat, gas, electric current, sewer telephone or other services by any public
utility.
27. SUBORDINATION, ATTORNMENT, NON-DISTURBANCE. This Lease shall be
subject and subordinate to any mortgage, deed of trust or other security devise
now or hereafter placed by Lessor upon the real property of which the Premises
are a part and to all renewals, modification, consolidations, replacements and
extensions thereof ("Security Devises"), provided that Lessee obtains from the
holder and beneficiary of any such Security Devise a Non-Disturbance Agreement
in form and substance reasonably satisfactory to Lessee. Upon Lessor's written
request, Lessee shall within five (5) days, execute, acknowledge and deliver to
Lessor a written statement certifying that the Lease is unmodified (or if
modified, describing same) and in full force and effect, the date to which rents
are paid and setting forth any alleged defaults of Lessor. Said statement may
be relied upon by Lessor, its agents, lenders and purchasers. Upon Lessee's
written request, Lessor shall within five (5) days, execute, acknowledge and
deliver to Lessee a written statement certifying that the Lease is unmodified
(or if modified, describing same) and in full force and effect, the date to
which rents are paid and setting forth any alleged defaults of Lessee. Said
statement may be relied upon by Lessee , its agents, lenders and purchasers.
Subject to Lessee's receipt of a Non-Disturbance Agreement, Lessee agrees to
attorn to Lender or any other party who acquires ownership of the Premises by
reason of a foreclosure of a Security Device, and that in the event of such
foreclosure, such new owner shall not be liable for any act of omission of any
prior lessor or with respect to events occurring prior to acquisition of
ownership, or be subject to any offsets or defenses which Lessee might have
against any prior lessor.
28. NOTICE. All notices for which provision is made under the Lease shall
be in writing. Any notice from the Lessor to the Lessee shall be deemed to have
been given in a proper manner if such notice is in writing addressed to the
Lessee at the Premises, deposited in the United States mail, with postage
prepaid, and sent by Registered or Certified mail, return receipt requested.
Any notice from the Lessee to the Lessor shall be deemed to have been given in
proper manner if such notice is in writing addressed to the Lessor at the
address of Lessor to which rent is paid, or at such other address as Lessor may
have designated by written notice to the Lessee, with postage prepaid, deposited
in the United States mail, and sent by Registered or Certified mail, return
receipt requested.
29. HEIRS AND ASSIGNS. The words "Lessor" and "Lessee" as used herein,
include, apply to and bind and benefit the heirs, executors, administrators,
successors and assigns of the Lessor and Lessee, subject to the provisions of
Paragraph 11.
30. AMENDMENTS. This Agreement may be amended only by written instrument
by all of the parties hereto.
31. ATTORNEYS' FEES. In the event that litigation or arbitration arises
involving this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees and expenses. In addition, if the Lessee breaches a
term, condition or agreement
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under this Lease, Lessor shall be entitled to attorneys' fees and expenses
incurred in the preparation and service of notices of breach and consultation
with Lessor regarding the breach, whether or not a legal action is subsequently
commenced in connection with such breach.
32. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the state in which the Premises are located.
33. HEADINGS. The headings used herein are for reference purposes only
and shall not be used to construe or interpret the meaning of this Lease.
34. SURVIVAL OF INDEMNIFICATION. The obligations of either party to
indemnify the other party as provided in this Lease shall survive the
termination or expiration of this Lease.
IN WITNESS WHEREOF, the parties have hereunto affixed their respective names
intending to be legally bound.
LESSOR:
Xxxxxxxx X. Xxxxxxxxxxx
-----------------------
LESSEE:
ATTEST: AARON'S AUTOMOTIVE PRODUCTS, INC.
By:
----------------------- -------------------------------
Secretary Xxxxxxx X. Bear, Vice-President
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STATE OF ________)
)ss.
COUNTY OF _______)
BEFORE ME, the undersigned, a notary public in and for the aforesaid county
and state, personally appeared Xxxxxxxx X. Xxxxxxxxxxx, known to be the Lessor
and the same person who executed the foregoing Lease Agreement as her free act
and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal this _______ day of ________, 1996.
----------------------------
NOTARY PUBLIC
My appointment expires:
--------------------------
STATE OF ________)
)ss.
COUNTY OF _______)
BEFORE ME, the undersigned, a notary public in and for the aforesaid
county and state, personally appeared Xxxxxxx X. Bear, known to me to be the
Vice President of AARON'S AUTOMOTIVE PRODUCTS, INCORPORATED and the same
person who executed the foregoing Lease Agreement as his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal this _________ day of ______________, 1996.
----------------------------
NOTARY PUBLIC
My appointment expires:
----------------------------
15
