Exhibit 10.7
FORM OF
LEASE AGREEMENT
BETWEEN
ADVANCE STORES COMPANY, INCORPORATED
AND
MAR MAR REALTY LIMITED PARTNERSHIP
This LEASE AGREEMENT is made _______________________, 1998 by and
between MAR MAR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership,
herein called "LANDLORD"; and ADVANCE STORES COMPANY, INCORPORATED, a Virginia
corporation, herein called "TENANT".
- WITNESSETH -
Premises: That for and in consideration of the rental reserved herein
and the mutual covenants and agreements herein contained, LANDLORD does hereby
demise and lease unto TENANT that certain parcel of land containing
_____________ acres situated in the ______________________________ of
_____________________, _____________________ County, _______________________ ,
and outlined in red on a survey made by _________________________ attached
hereto as Exhibit "A" consisting of one (1) page which has been initialed by
LANDLORD and TENANT. LANDLORD shall erect upon said _______ acre parcel for
TENANT'S use a __________ square foot building and other improvements, such as
parking (the _______ acre parcel, building and other improvements being herein
collectively called the "Leased premises").
LANDLORD ________________
TENANT __________________
1. CONSTRUCTION OF LEASED PREMISES:
a. Construction: LANDLORD agrees to construct on the leased
premises, at its exclusive risk and expense, a building and other improvements
such as parking facilities in accordance with the plans and specifications
(herein called the "Plans") attached hereto as Exhibit "B" consisting of ______
pages, each of which has been initialed by LANDLORD and TENANT. Any changes to
the Plans shall be made only by a written change order duly signed by LANDLORD
and TENANT. The improvements shall be constructed in compliance with all
applicable federal, state and local laws and the rules and regulations of the
departments and bureaus having jurisdiction thereof.
b. LANDLORD'S Guarantee: LANDLORD guarantees all of the
construction work provided for in paragraph la against defective workmanship and
materials through the end of the first full year following the date of the
commencement of the initial term of this lease. TENANT shall have the right,
from time to time, to inspect such work. In the event of any defective
workmanship or materials, LANDLORD will, at its own risk and expense, repair or
replace such defective workmanship and materials of which TENANT shall have
given written notice of prior to the expiration of the guarantee period set
forth above. In the event LANDLORD fails to repair or replace such defective
workmanship or materials, TENANT may do so and deduct the cost thereof from the
rent payments to become due.
c. Substantial Completion: The construction work provided for
in paragraph la shall be deemed to have been substantially completed when all of
the following shall have occurred:
(i) LANDLORD shall have substantially performed all
of said construction work. Such work shall be deemed to have been substantially
performed when such
LANDLORD______________
TENANT _______________
2
work has been entirely completed in accordance with the Plans and in compliance
with all applicable laws, rules and regulations except for minor or
insubstantial details of construction, decoration or mechanical adjustments
remaining to be done, the completion of which will not materially interfere with
TENANT'S use of the leased premises, provided that nothing herein shall relieve
LANDLORD from its obligation to complete such work. In the event there is any
work that has not been entirely completed, LANDLORD and TENANT shall execute and
deliver to the other a letter agreement drawn by the TENANT listing such
incomplete work and the approximate dates when the same shall be completed by
LANDLORD. In the event LANDLORD fails to do so, TENANT may complete such work
and deduct the cost thereof from the rent payments to become due.
(ii) A certificate of occupancy authorizing use of
the leased premises for TENANT'S intended use shall have been issued by the
governmental department or bureau having jurisdiction of the leased premises.
(iii) LANDLORD shall have given TENANT written notice
that all of the foregoing have occurred.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
3
2. TERM/OPTIONS:
a. Initial Term: The initial term of this lease (herein
referred to as the "initial term") shall commence on the date when the leased
premises shall have been substantially completed as provided in paragraph 1
hereof or on ___________________, _______, whichever date shall occur later, and
shall terminate at midnight on __________________, ________. Upon commencement
of the term of this lease, LANDLORD and TENANT shall enter into a written
agreement setting forth the commencement date, but the failure to execute such
agreement shall not prevent the commencement of the term. TENANT'S obligation to
commence payment of the rent provided in paragraph 3 hereof shall coincide with
the commencement of the term of this lease; however, in the event the
commencement date commences on any day other than the first day of any calendar
month, TENANT shall pay to LANDLORD on the commencement of the term the
proportionate amount of rent due for the balance of such month.
b. Options: LANDLORD grants to TENANT the option to extend
this lease for two (2) additional terms of five (5) years upon the same terms
and conditions as herein contained. In order to exercise said option to extend
this lease, TENANT shall give LANDLORD written notice at least three (3) months
prior to the expiration of the then term of this lease; however, in case TENANT
fails to timely exercise said option, LANDLORD shall give TENANT written notice
inquiring whether TENANT desires to exercise such option; TENANT may, within
fifteen (15) days of receipt of such notice from LANDLORD, exercise such option
to extend this lease, which exercise shall constitute a valid and timely
exercise of said option.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
4
3. RENT:
a. Guaranteed Rent: TENANT shall pay LANDLORD during each
rental year of this lease the following monthly sums (the "minimum guaranteed
rent") which shall be payable, in advance, on the first day of each month:
Commencement through , , - $ per month
---------------------- --------- ------------------
1st Option , through , , - $ per month
--------------------- -------- ----------------------- -------- ----------------
2nd Option , through , , - $ per month
---------------------- -------- --------------------- -------- ----------------
b. Percentage Rent: In addition to the minimum guaranteed
rent, should the sum of ______% of TENANT'S gross sales during any rental year
exceed the total of the minimum guaranteed rent payable in such rental year,
TENANT will pay LANDLORD, as additional rent due hereunder, a sum equivalent to
such excess (the "percentage rental"). The percentage rental shall be determined
and payable on or before the ninetieth (90th) day following the close of each
rental year based on the gross sales made from the leased premises for each such
year. A statement signed by an officer of TENANT showing in reasonable detail
the amount of the gross sales during the preceding rental year shall accompany
TENANT'S payment of the percentage rental for such period.
TENANT shall prepare and keep at its principal offices until at least
twelve (12) months following the end of each rental year an accurate account of
its gross sales as herein defined disclosing the cash receipts, and such other
information as may be reasonably necessary to determine said gross sales,
including all such sales records which would normally be examined by an
independent accountant pursuant to accepted accounting standards if an audit of
TENANT'S sales were to be performed. Upon written request from LANDLORD, TENANT
shall furnish to LANDLORD any audit of sales made from the leased premises as
done by the regular accounting firm employed by TENANT. LANDLORD may, at its
option and expense, acting alone or through
LANDLORD_______________
TENANT ________________
5
its duly authorized representatives, inspect TENANT'S record of sales made from
the leased premises at any time or from time to time, provided such inspection
covering a rental year is made within twelve (12) months following receipt of
TENANT'S statement for such rental year. Any claim by LANDLORD for revision of
any statement of sales or for additional percentage rental must be made in
writing to TENANT within fifteen (15) months after the receipt of TENANT'S
statement for such rental year for which additional rental is allegedly due. At
its option, LANDLORD, at any reasonable time, or from time to time, no more than
once during a rental year, may have made a complete audit of TENANT'S entire
sales record relating to the leased premises covering the then current and
immediately preceding rental year. If such audit shall disclose a deficiency in
percentage rental paid for any rental year to the extent of five percent (5%) or
more, TENANT shall promptly pay to LANDLORD the amount of such deficiency and,
in addition, unless such deficiency is the result of a non-willful error, TENANT
shall pay the cost of such audit. In the event such audit discloses a deficiency
for percentage rental of twenty percent (20%) or more in excess of rentals
thereto paid for such rental year, and if such deficiency is not the result of a
non-willful error, LANDLORD shall have an additional remedy, at its option, to
terminate this lease. LANDLORD shall hold in confidence all sales and other
information obtained from TENANT'S records.
c. Definitions:
(i) Gross Sales: The term "gross sales" as used herein shall
mean the actual sales price for all goods, wares and merchandise sold and actual
charges for all labor services performed by TENANT upon or from the leased
premises, whether for cash or otherwise, including, but not limited to, such
sales and services where the orders therefore originate in, at or from the
leased premises or from some other place, pursuant to mail, telephone, telegraph
or similar orders
LANDLORD_______________
TENANT ________________
6
received at the leased premises; provided, however, that the following
transactions shall be expressly excluded from the term "gross sales": (a)
exchanges of merchandise between stores of TENANT where such exchange is made
solely for the convenient operation of TENANT'S business and not for the purpose
of consummating a sale made in, at or from the leased premises; (b) returns of
merchandise to shippers or manufacturers; (c) voluntary or involuntary cash or
credit refunds to customers on transactions otherwise included in gross sales;
(d) sales of fixtures, machinery and equipment used in the conduct of TENANT'S
business at said leased premises; and (e) all sums collected from customers in
the form of sales tax, excise tax or similar tax imposed upon and collected by
TENANT by and for any duly constituted governmental authority.
(ii) Rental Year: The term "rental year" as used herein shall
mean: (a) in the calendar year in which the initial term of this lease
commences, that period from the date of commencement of the lease until December
31st next following; and (b) that period from January 1 to December 31 for all
other years during the term of this lease.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
7
4. TENANT'S FURNISHINGS. FIXTURES AND EQUIPMENT: TENANT, at its sole
cost and expense, may supply and install in or on the leased premises any
furnishings, fixtures or equipment, including a satellite dish and any necessary
cables or supporting equipment, which it deems necessary for its use of said
premises; provided, however, that TENANT shall repair, at its own expense, any
damage to the leased premises occasioned by such installation. LANDLORD and
TENANT recognize that TENANT will commence the installation of its furnishings,
fixtures and equipment prior to final completion of the leased premises provided
for in paragraph 1 hereof, and agree to cooperate with each other in this
respect. LANDLORD agrees that TENANT may at TENANT'S sole risk enter the leased
premises in order to commence such installation free from any rent and such
entry shall not be construed as an acceptance of the leased premises, such
acceptance being controlled solely by the provisions of paragraph 1 hereof.
LANDLORD shall not under any circumstances be liable for any furnishings,
fixtures or equipment installed by TENANT. Any such furnishings, fixtures and
equipment supplied and installed in the leased premises, except those
permanently attached, shall be and remain the property of TENANT and TENANT
shall have the right and obligation to remove same at any time so long as TENANT
is not in default in the performance of any of the terms and conditions of this
lease. Furthermore, TENANT'S right to remove said furnishings, fixtures and
equipment shall extend to fifteen (15) days next following the date of
termination of this lease, provided TENANT shall not then be in default of the
terms and conditions of this lease. Any damage to the leased premises occasioned
by the removal of said furnishings, fixtures and equipment shall be repaired by
TENANT at its sole cost and expense.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
8
5. ALTERATIONS AND ADDITIONS: TENANT shall have the right to alter,
improve and rearrange the interior partition walls of the leased premises as
necessary for the convenience of the conduct of the TENANT'S business. TENANT
shall not alter, improve or rearrange the structural walls of the leased
premises without the prior written approval of LANDLORD, which approval shall
not be unreasonably withheld. TENANT shall pay all costs for any of the
foregoing alterations or additions and upon termination or cancellation of this
lease, all alterations and additions shall become the property of LANDLORD.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
9
6. MAINTENANCE AND REPAIRS:
a. LANDLORD: In addition to the provisions of subparagraph c
and d of this paragraph, LANDLORD shall maintain and keep in good order and
repair (which shall include replacement, if necessary) the roof, "uttering and
downspouts, the structural walls and foundations (neither windows nor doors are
regarded as walls for the purpose of this paragraph), the electrical wiring
(from the utility company's distribution lines to the leased premises) serving
the leased premises, the water line (from the city water main to but not
including the water meter) serving the leased premises, and the sanitary sewer
serving the leased premises (from the main city sewer line to the leased
premises), and all other structural components of the leased premises within
thirty (30) days after written notice of the necessity of such repairs has been
given by TENANT; or if not capable of repair within 30 days, LANDLORD shall
commence to repair and diligently proceed with the completion of such repairs;
provided, however, that the cost of any such repairs required as a result of the
negligence or willful act of TENANT, its customers or licensees, agents,
servants or employees, shall be borne by TENANT. Should LANDLORD fail to comply
with said maintenance and repairs after notice, TENANT shall have the right to
do so and deduct the cost thereof from the rental due hereunder.
b. TENANT: In addition to the provisions of subparagraph c of
this paragraph and excepting damage by fire or other cause and any repairs or
replacements which are the obligation of LANDLORD, TENANT shall maintain and
keep in good order and repair the leased premises, including the electrical,
plumbing and sewer systems as well as any and all interior non-structural
maintenance.
LANDLORD_______________
TENANT ________________
10
repairs, LANDLORD shall have the right to enter the leased premises and make the
necessary repairs and perform any maintenance required. Any costs incurred by
LANDLORD in so performing TENANT'S obligations shall be paid by TENANT within
fifteen (15) days after receipt of notice of said expenditures.
c. Maintenance of Heating/Air Conditioning System: TENANT
shall maintain and repair the heating/air conditioning system; however, if, as
and to the extent that there are major breakdowns in the system then TENANT and
LANDLORD will share equally the expense of replacing the system with a new
system or of repairing the same, including labor and parts. A "major breakdown",
as used in the preceding sentence, shall mean that if the whole system needs to
be replaced or if the cost of any repairs, including labor and parts, shall be
equal to or shall exceed $500.00, then a "major breakdown" exists. LANDLORD
shall reimburse TENANT within fifteen (15) days of receipt of notice regarding
LANDLORD'S share of the aforesaid costs and should LANDLORD fail to do so TENANT
shall have the right to deduct such share thereof from the rental due hereunder.
d. Maintenance of the Parking Lot and Sidewalks. etc.:
LANDLORD shall maintain and repair the parking lot, sidewalks and all other
areas of the leased premises that are not structurally a part of the building
within thirty (30) days after written notice of the necessity of such repairs
has been given by TENANT. In the event any of such repairs are required as a
result of negligence or willful act of TENANT, its customers or employees, the
cost thereof shall be borne by TENANT. Should LANDLORD fail to comply with said
maintenance and repair obligation after notice, TENANT shall have the right to
do so and deduct the cost thereof from the rental due hereunder.
LANDLORD_______________
TENANT ________________
11
e. Manufacturer's Warranties: Upon TENANT'S acceptance of the
leased premises LANDLORD shall promptly assign to TENANT all manufacturer's
warranties with respect to the mechanical installations within the leased
premises, including, without limitation, the heating and air conditioning
system(s).
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
12
7. INSURANCE: TENANT, at its sole cost and expense, shall keep the
leased premises insured to the extent of its full replacement value against loss
or damage by fire, with extended coverage. Furthermore, TENANT shall maintain
with respect to the leased premises a policy of public liability, naming TENANT
and LANDLORD as insured, with limits of $1,000,000 for any one person and
$1,000,000 for any one accident and property damage insurance in limits of
$50,000 in companies authorized to do business in ______________. TENANT upon
request, shall exhibit such policies to LANDLORD or provide LANDLORD with
evidence thereof. Such policies of insurance shall name TENANT and LANDLORD as
the insured, as their interest may appear.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
13
8. REAL ESTATE TAXES: TENANT shall reimburse LANDLORD for all real
estate taxes, assessments or other governmental charges which may be levied or
assessed by any lawful authority against the leased premises. If the term of
this lease commences or terminates during any part of a year, TENANT shall be
responsible for said taxes and charges for only that portion of the year for
which TENANT is responsible to pay rent hereunder. TENANT shall reimburse
LANDLORD for such taxes within thirty (30) days of receipt from LANDLORD of a
statement of said taxes. LANDLORD agrees that TENANT may challenge any
assessment of property taxes imposed upon the leased premises with the
appropriate taxing authorities, and LANDLORD will cooperate with TENANT in
making such challenge.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
14
9. DAMAGE OR DESTRUCTION OF THE LEASED PREMISES: In the event of total
or partial destruction of or damage to the leased premises by fire or any other
cause during the term hereof, LANDLORD shall be obligated to and shall with due
diligence rebuild or restore the leased premises to a condition comparable to
that existing prior to the occurrence of said destruction or damage.
If in TENANT'S reasonable discretion any such destruction or damage to
the leased premises is such as to prevent the operation of TENANT'S business on
the leased premises, or to make it impractical so to do, then the rent, taxes
and any other charges to be paid by TENANT hereunder shall xxxxx from the
occurrence of any destruction or damage up to and including the time that the
leased premises has been rebuilt or restored. The amount of such abatement is to
be determined by taking a fraction, the numerator of which shall be the square
foot area of the building which is a part of the leased premises which is usable
in the operation of TENANT'S business on the leased premises following any
destruction or damage thereto and the denominator of which shall be the total
square foot area, inside dimensions, of such building. The amount of which
results from the multiplication of such fraction by all rent and taxes and all
other charges that would have been due from TENANT to LANDLORD hereunder but not
for the destruction or damage, shall be the amount payable by TENANT for the
period commencing with any destruction or damage and terminating with the
completion, by LANDLORD, of the aforesaid rebuilding or restoration.
In the event of the total destruction of the leased premises during the
last one (1) year of the term of this lease, LANDLORD shall not be obligated to
so rebuild and restore, and at the option of either LANDLORD or TENANT
(exercised by notice to the other within thirty (30) days of such destruction)
this lease shall terminate: Anything herein contained to the contrary
notwithstanding,
LANDLORD_______________
TENANT ________________
15
if the leased premises is totally destroyed by reason of fire or other cause
occurring during the last one (1) year of the term of this lease or any renewal
period thereof, LANDLORD shall rebuild the leased premises, at LANDLORD'S
expense, if prior to the expiration of thirty (30) days after such destruction,
TENANT shall have elected to exercise any option which TENANT may then have to
extend this lease for an additional period.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
16
10. CONDEMNATION:
a. Total: If the whole of the leased premises shall be
acquired or taken by eminent domain for any public or quasi-public use or
purpose or by private purchase in lieu thereof, then this lease and the term
hereof shall automatically cease and terminate as of the date of title vesting
in such proceedings.
b. Partial: If any part of the leased premises shall be so
taken and such partial taking shall render that portion not so taken unsuitable
for the purposes for which the leased premises were leased, then LANDLORD and
TENANT shall each have the right to terminate this lease by written notice given
to the other within sixty (60) days after the date of title vesting in such
proceeding. If any part of the leased premises shall be so taken and this lease
shall not be terminated, as aforesaid, then this lease and all of the terms and
provisions thereof shall continue in full force and effect, except that the
maximum guaranteed annual rent shall be reduced in the same proportion that the
gross leasable area of the leased premises taken bears to the original gross
leasable area leased and, LANDLORD shall, upon receipt of the award in
condemnation, make all necessary repairs and alterations (exclusive of TENANT'S
furnishings, fixtures, equipment and signs) to restore the portion of the leased
premises remaining to as near its former condition as the circumstances will
permit, and to the building of which the leased premises forms a part to the
extent necessary to constitute the portion of the building not so taken a
complete architectural unit; and TENANT, at TENANT'S expense, shall make all
necessary repairs and alterations to TENANT'S furnishings, fixtures, equipment
and signs.
LANDLORD_______________
TENANT ________________
17
c. Rent: If this lease is terminated as provided in this
paragraph all rent shall be paid by TENANT up to the date of termination and
LANDLORD shall refund any rents paid by TENANT in advance and not yet earned.
d. Award: All damages or compensation awarded or paid for any
such taking, whether for the whole or any part of the leased premises, shall
belong to and be the property of LANDLORD without any participation by TENANT;
provided, however, that nothing herein contained shall be construed to preclude
TENANT from prosecuting any claim directly against the condemning authority, but
not against LANDLORD, for the value of or damages to and/or for the cost of
removal of movable trade fixtures and other personal property which under the
terms of this lease would remain TENANT'S property upon the expiration of the
term of this lease, as may be recoverable by TENANT in TENANT'S own right.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
18
11. USE/SIGNS/UTILITIES:
a. USE: TENANT shall use the leased premises only for the
purpose of operating and conducting therein a business of the type conducted by
the chain of stores operated by TENANT, which is generally the sale of
automobile parts and accessories, including tires, batteries and wheels.
Furthermore, TENANT'S use shall comply with all ordinances, laws, rules or
regulations promulgated by any governmental body having jurisdiction over the
leased premises.
b. Signs: TENANT may erect or place signs on the exterior of
the leased premises, including a separate standing pylon sign facing any public
road adjacent to the leased premises, provided that the erection of any such
signs be in accordance with all local ordinances.
c. Utilities: TENANT shall procure for its own account and
shall pay the cost of all utility charges, including water, electricity, heat
and sewer, used by TENANT in or at the leased premises.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
19
12. ASSIGNMENT OR SUBLETTING: TENANT may not assign or sublet the whole
or any part of the leased premises without the prior written consent of
LANDLORD, which will not be unreasonably withheld; provided, however, any such
assignment or subletting to which LANDLORD consents shall not release TENANT of
its obligation hereunder.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
20
13. DEFAULT:
a. Events of Default: The following shall constitute an event
of default hereunder;
(i) TENANT'S failure to pay the rent or other charges
when due and which remain unpaid for more than ten (10) days after written
notice from LANDLORD; or
(ii) TENANT'S failure to perform any of the other
terms, conditions or covenants contained in this lease which has continued for
more than thirty (30) days after written notice thereof from LANDLORD; provided,
however, that if the nature of such default is such that it can not reasonably
be cured within said thirty (30) days, and work thereon has commenced within
said period and diligently prosecuted, no default shall have occurred; or
(iii) TENANT shall become bankrupt or insolvent, or
file any debtor proceedings, or take or have taken against TENANT in any court
pursuant to any statute either of the United States or of any state a petition
in bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or a portion of TENANT'S property; or
(iv) TENANT makes an assignment for the benefit of
creditors, or petitions for or enters into an arrangement; or
(v) TENANT shall abandon the leased premises or
suffer the lease to be taken under any writ of execution.
b. Remedies: If any event of default has occurred then
LANDLORD. without excluding other rights or remedies it may have, shall have the
immediate right of re-entry and may remove all persons and property from the
leased premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of TENANT, all without
LANDLORD_______________
TENANT ________________
21
resort to legal process and without being deemed guilty of trespass, or becoming
liable for any loss or damage which may be occasioned thereby. If LANDLORD
should elect to re-enter as herein provided, or should it take possession
pursuant to legal proceedings, it may either terminate this lease or it may from
time to time without terminating this lease make such alterations and repairs as
may be necessary in order to relet the leased premises, and relet said leased
premises for such term and at such rentals and upon such other terms and
conditions as LANDLORD may deem advisable. In the event of such reletting, all
rentals received by LANDLORD shall be applied, first, to the payment of any
indebtedness other than rent due hereunder from TENANT to LANDLORD; second, to
the payment of any costs and expenses of such reletting, including the expense
of alterations and repairs; third, to the payment of rent due and unpaid
hereunder, and the residue, if any, shall be held by LANDLORD and applied in
payment of any future rent due and unpaid hereunder. If such reletting shall
yield rentals insufficient for any month to pay the rent due by TENANT hereunder
for that month, TENANT shall be liable to LANDLORD for the deficiency and same
shall be paid monthly. No such re-entry or taking possession of the leased
premises by LANDLORD shall be construed as an election to terminate this lease
unless a written notice of such intention be given by LANDLORD to TENANT at the
time of such re-entry. Notwithstanding any such re-entry and reletting without
termination, LANDLORD may at any time thereafter elect to terminate this lease
for such previous breach, in which event it may recover from TENANT damages
incurred by reason of such breach, including the cost of recovering the leased
premises and the difference in value between the rent reserved hereunder for the
remainder of the term and the fair market rental value of the leased premises
for the remainder of the term. In determining the rent which would be payable by
TENANT hereunder, subsequent to default, the annual rent for each year
LANDLORD_______________
TENANT ________________
22
of the unexpired term shall be equal to the average annual rent paid by TENANT
from the commencement of the term to the date of default.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
23
14. NON-COMPETITION: LANDLORD shall not, for as long as this lease
remains in force and effect, either directly or indirectly, lease to any third
person any land or building, whether presently owned or hereafter acquired,
within _______ mile(s) from the leased premises for the purpose of conducting
thereon a business similar to that being conducted by TENANT upon the leased
premises; nor shall LANDLORD itself, nor any of its individual stockholders,
partners or beneficiaries, as the case may be, either directly or indirectly,
own or operate any such business within said _______ mile(s) radius.
TENANT shall, in the event that there is a breach of any of the
provisions of this paragraph, have the following rights and remedies, none of
which shall be exclusive of the others or any other remedy otherwise available
to TENANT:
a. TENANT may institute proceedings to enjoin the violation in
its name or in the name of LANDLORD.
b. If such conflicting use continues for a period of thirty
(30) days after written notice thereof shall have been given by TENANT to
LANDLORD, TENANT may, at any time thereafter, elect to terminate this lease, and
on such election, this lease shall, on the date fixed in the notice of such
election, be terminated, and TENANT shall be released and discharged of and from
any and all further liability hereunder.
c. As long as such condition exists, TENANT'S only obligation
concerning the payment of rent shall be the payment of percentage rental only,
with no minimum guaranteed annual rent, on the basis of the percentage of gross
sales set forth in paragraph 3b hereof, such percentage rental to be payable
only after the expiration of each rental year.
LANDLORD_______________
TENANT ________________
24
d. TENANT may hold LANDLORD liable for any costs and expenses,
including counsel fees, sustained or incurred in connection with any proceedings
instituted by TENANT, and if LANDLORD does not institute and proceed diligently
with suit to enjoin such conflicting use may hold LANDLORD liable for any and
all other damages sustained or to be sustained by reason of the violation of
such covenant.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
25
15. HAZARDOUS SUBSTANCES:
a. Definition: As used herein, "Hazardous Substance" means any
substance that is toxic, ignitable, reactive, or corrosive and is regulated by
any local government, the State of Pennsylvania, or the United States of
America. "Hazardous Substance" includes any and all material or substances that
are defined as "hazardous substance" pursuant to state, federal, or local
governmental law. "Hazardous Substance" includes but is not restricted to
asbestos, polychlorobiphenyls ("PCBs"), and petroleum.
b. LANDLORD'S Covenants and Indemnification: LANDLORD
covenants that the leased premises shall be free of Hazardous Substances as of
the commencement date of the term of this lease. LANDLORD agrees to indemnify
and hold TENANT harmless from any and all claims, damages, fines, judgments,
penalties, costs, liabilities or losses (including, without limitation, any and
all sums paid for settlement of claims, attorneys' fees, consultant, and expert
fees) arising during or after the lease term from or in connection with the
presence or suspected presence of Hazardous Substances in or on the leased
premises unless the Hazardous Substances are present solely as a result of the
breach of the provisions of subparagraph c of this paragraph. Without limitation
of the foregoing, this indemnification shall include any and all costs incurred
due to any investigation of the leased premises or any cleanup, removal, or
restoration mandated by a federal, state, or local agency or political
subdivision unless the Hazardous Substances are present solely as a result of
the breach of the provisions of subparagraph c of this paragraph. This
indemnification shall specifically include any and all costs due to Hazardous
Substances that flow, diffuse, migrate, or percolate into, onto, or under the
leased premises after the term of this lease commences.
LANDLORD_______________
TENANT ________________
26
c. TENANT'S Covenants and Indemnification: TENANT covenants
that during the period of its possession of the leased premises TENANT, its
agents, employees, contractors and invitees, shall comply with all federal,
state and local Hazardous Substance laws, regulations and ordinances that are
applicable to TENANT'S use of the leased premises, the failure of which shall
constitute an event of default under this lease. TENANT agrees to indemnify and
hold LANDLORD harmless from any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses (including, without limitation, any and
all sums paid for settlement of claims, attorneys' fees, consultant, and expert
fees) arising during or after the lease term and arising as a result of the
default by TENANT, its agents, employees, contractors or invitees, of the
foregoing covenant. Without limitation of the foregoing, this indemnification
shall include any and all costs incurred due to any investigation of the leased
premises or any cleanup, removal, or restoration mandated by a federal, state,
or local agency or political subdivision.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
27
16. NOTICES AND RENT PAYMENTS:
a. Notices: Notices under this lease shall be deemed to have
been given if in writing, and when deposited in the United States mail,
certified or registered, return receipt requested, with postage prepaid, and
addressed as follows:
To LANDLORD At: Mar Mar Realty Limited Partnership
Independence Office Park
0000 Xxxxxxxx Xxxx, Xxxx. 0, Xxxxx 000
Xxxxxxxxx, XX 00000
To TENANT At: Advance Stores Company, Inc.
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Real Estate Department
Or to either at such other place as either of them may give notice to the other,
pursuant to the provisions of this paragraph, from time to time.
b. Rent: All payments of rent to be made hereunder by TENANT
shall be mailed to LANDLORD at the address provided for in subparagraph a of
this paragraph.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
28
17. MISCELLANEOUS:
a. Identity of Interest: The execution of this lease or the
performance of any act pursuant to the provisions thereof shall not be deemed or
construed to have the effect of creating between LANDLORD and TENANT the
relationship of principal or agent, or of a partnership or joint venture.
b. Landlord's Title: LANDLORD covenants that it will acquire
lawful title and right to make this lease for the term and upon the conditions
herein set forth and that it will provide TENANT with evidence thereof
satisfactory to TENANT prior to the time on which the initial term shall
commence. If at any time during the term hereof the title or right of LANDLORD
to make this lease shall fail or for any reason it shall appear LANDLORD is
unable to make this lease for the term or on the conditions herein set forth,
TENANT may cancel this lease.
c. Quiet Enjoyment: LANDLORD covenants that it will put TENANT
into complete and exclusive possession of the leased premises and that upon
TENANT'S paying the rent and performing all of the covenants of this lease to be
performed by it hereunder, TENANT shall during the term hereof freely, peaceably
and quietly occupy and enjoy the full possession of the leased premises and all
of the rights and privileges herein granted, including any easement rights,
without molestation or hindrance, lawful or otherwise.
d. Holding Over: Any holding over after the expiration of the
term hereof with the consent of LANDLORD shall be construed to create a tenancy
from month to month at the rent herein reserved, prorated on a monthly basis;
and such tenancy shall otherwise be subject to the terms and conditions set
forth in this lease.
LANDLORD_______________
TENANT ________________
29
e. Surrender of Leased Premises: TENANT shall surrender to
LANDLORD the leased premises at the expiration of the term hereof, or any
extension thereof, or upon termination by virtue of TENANT'S default, in good
and broom clean condition, reasonable wear and tear and damage by fire or other
cause not occasioned by TENANT'S negligence excepted.
f. Loss or Damage of Property: LANDLORD shall not be liable
for any loss or damage to TENANT'S property however occurring except as may
result directly from failure of LANDLORD to perform any act required of it under
the terms of this lease or in the event same shall have arose from or out of any
occurrence occasioned by the act or omission of LANDLORD, its agents,
contractors, employees, servants, lessees, or concessionaires.
g. Right of Entry: LANDLORD, its agents and representatives,
shall have the right to enter the leased premises at all reasonable times for
the purpose of (a) inspection of the leased premises, (b) making repairs,
replacements, alterations or additions to the leased premises, (c) exhibiting
the leased premises to prospective tenants during the last one hundred twenty
(120) days of the term, and any such entry herein authorized shall not be or
constitute an eviction or deprivation of any right conferred hereunder upon
TENANT.
h. Care of Leased Premises: TENANT shall maintain the
landscaped areas on the leased premises and keep the leased premises clean and
neat, and free from rubbish, litter or obstructions of any kind.
i. Excusable Delay: Except for the payment of rent, if
LANDLORD or TENANT is delayed or prevented from performing any of its
obligations under this lease by reason of strike or labor troubles or any
outside cause whatsoever beyond LANDLORD'S or TENANT'S
LANDLORD_______________
TENANT ________________
30
reasonable control, the period of such delay or such prevention shall be deemed
added to the time herein provided for the performance of any such obligations by
LANDLORD or TENANT.
j. Non-waiver: The failure of LANDLORD or TENANT to insist
upon strict performance of any of the terms, conditions and covenants herein
contained shall not be deemed to be a waiver of any rights or remedies that
LANDLORD or TENANT may have, and shall not be deemed a waiver of any subsequent
breach or default in the terms, conditions and covenants herein contained except
as may be expressly waived in writing.
k. Conditions Precedent to TENANT'S Covenants: The covenants
of TENANT herein contained, including the obligation to pay rent, are expressly
made subject, in addition to the other conditions contained in this lease, to
the leased premises being vacant at the commencement of the term and TENANT
being able to obtain all necessary governmental permits and authority for
operating and conducting upon the leased premises a business of the type
conducted by the chain of stores operated by TENANT. In the event the leased
premises are not vacant or TENANT is unable to obtain any of such governmental
permits or authority, TENANT shall have the right to cancel this lease upon
giving written notice to LANDLORD.
l. Indemnification of LANDLORD: TENANT will indemnify LANDLORD
and save it harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury and/or
damage to property rising from or out of any occurrence in, upon, or at the
leased premises, or the occupancy or use by TENANT of the leased premises or any
part thereof, or occasioned wholly or in part by any act or omission of TENANT,
its agents, contractors, employees, servants, lessees or concessionaires.
Nothing contained in this paragraph shall be construed to require TENANT to
indemnify LANDLORD for any loss of life,
LANDLORD_______________
TENANT ________________
31
personal injury and/or damage to property rising from or out of any occurrence
occasioned by the act or omission of LANDLORD, its agents, contractors,
employees, servants, lessees or concessionaires.
m. Waiver of Subrogation: Notwithstanding any other provision
herein, LANDLORD shall not be liable to TENANT and TENANT shall not be liable to
LANDLORD for any loss or damage caused by any of the perils or casualties
enumerated in standard fire, extended coverage, boiler and machinery policies or
multiperil physical damage policies and recovered by the insured party from its
insurers even if such fire or other casualty or peril resulted from the
negligence of the other party; and to the extent of such recovery, each party
hereto releases and waives all rights and claims against the other.
n. Short Form Lease: TENANT agrees not to record this lease,
and LANDLORD and TENANT agree to execute, acknowledge and deliver, if either
party shall so request, a "Short Form Lease" suitable for recording.
o. Pre-existing Conditions: Nothing contained in this lease
shall be construed to impose any responsibility upon TENANT with regard to any
loss, injury or other claim arising as a result of any condition that existed on
the leased premises at the time of TENANT'S taking possession thereof.
p. Governing Law: The laws of the State of shall govern the
validity, performance and enforcement of this lease.
q. Prior Negotiations, Etc.: All negotiations, considerations,
representations and understandings between LANDLORD and TENANT prior to the
execution of this lease are incorporated herein.
LANDLORD_______________
TENANT ________________
32
r. No Offer: TENANT'S delivery to a prospective landlord of
this form of lease shall not be deemed an offer to lease even though such form
be completed in every respect.
s. Captions: The captions in this lease are for convenience
only and not a part of this lease, and do not in any way limit or amplify the
terms and provisions of this lease.
t. Grammatical Usage: In construing this lease, feminine or
neuter pronouns shall be substituted for those masculine in form and vice versa,
and plural terms shall be substituted for singular and singular for plural in
any place in which the context so requires. Furthermore, the use of the neuter
singular pronoun to refer to LANDLORD or TENANT shall be deemed a proper
reference even though LANDLORD or TENANT may be an individual, a partnership, a
corporation, or a group of two or more individuals or corporations.
u. Successors and Assigns: This lease agreement along with its
covenants and conditions shall inure to the benefit of and be binding upon
LANDLORD, and the heirs, personal representatives, successors and assigns (as
the case may be) of LANDLORD, and shall bind the TENANT, its successors and
assigns.
v. Entire Agreement: This lease contains all of the promises,
agreements and conditions between the parties hereto, and any subsequent
agreements between the parties altering the terms hereof must be reduced to
writing and executed by both parties.
w. Counterparts: This lease has been executed in several
counterparts; but the counterparts shall constitute but one and the same
instrument.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
LANDLORD_______________
TENANT ________________
33
IN WITNESS WHEREOF, LANDLORD and TENANT have executed this Lease
Agreement in duplicate originals on the day and year first above written.
ATTEST LANDLORD
(SEAL)_______________________________ By:________________________________
TENANT
ADVANCE STORES COMPANY,
INCORPORATED
By:________________________________
(SEAL)_______________________________
LANDLORD_______________
TENANT ________________
34
