Exhibit 10.5.1
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement ("First Amendment") is made and
entered into by and between Fiesta Mart, Inc. ("Landlord"), C.A.I., L.P.
("Tenant") and Conn Appliances, Inc. ("Guarantor").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Shopping Center
Lease Agreement dated May 3, 2000 ("Lease") whereby Landlord leased to Tenant
that certain demised premises located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
("Demised Premises"), which Demised Premises is located in the Beaumont Shopping
Center ("Shopping Center"); and
WHEREAS, Tenant desires to lease additional space in the Shopping Center,
which space is currently occupied by Specialties Entertainment, Inc. d/b/a
Golden Nugget Bingo ("Golden Nugget"), such space containing approximately
18,500 square feet ("Expansion Premises"); and
WHEREAS, Landlord is amenable to leasing Tenant the Expansion Premises on
the terms and conditions set forth in this First Amendment.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein, Landlord, Tenant and Guarantor hereby agree as
follows:
1. All capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the Lease.
2. Landlord hereby leases the Expansion Premises to Tenant and Tenant
hereby leases from Landlord the Expansion Premises commencing September 15, 2001
("Effective Date") through the last day of the Lease Term. Tenant hereby accepts
the Expansion Premises in it present "AS IS", "WHERE IS" condition, WITH ALL
FAULTS, in accordance with the terms of Section 3.1 and 25.18 of the Lease.
3. The Minimum Guaranteed Rental payable by Tenant to Landlord for the
Expansion Premises shall be an amount equal to the following:
(a) From the Effective Date through September 30, 2001 an amount equal
to Two Thousand Two Hundred Sixty-One and 11/100 Dollars ($2.261.11);
(b) From October 1, 2001 through the sixtieth (60th) month of the
initial Lease Term, an amount equal to Four Thousand Two Hundred
Thirty-Nine and 58/100 Dollars ($4,239.58) per month; and
(c) For the period commencing on the first day of the sixty-first
(61st) month of the Lease Term through the end of the Lease Term, an
amount equal to Five Thousand Ten and 42/100 Dollars ($5,010.42) per
month.
4. Tenant shall be obligated to pay Tenant's Pro Rata Share of Common Area
Costs, Insurance Premiums and Taxes attributable to the Expansion Space in the
same manner as set forth in the Lease pertaining to the Demised Premises.
5. Tenant hereby waives the right and option Tenant has to surrender the
Surrender Space to Landlord pursuant to the provisions of Section 29.7 of the
Lease and the Surrender Space shall remain part of the Demised Premises for the
entire Lease Term and the renewal terms set forth in the Lease, if applicable.
6. The renewal options set forth in Exhibit "H" to the Lease shall be
applicable to the Expansion Premises and the Minimum Guaranteed Rental for the
renewal terms shall be the rates set forth therein multiplied by the total
square footage of the Demised Premises and the Expansion Premises.
7. The last sentence of Section 1.1(y) of the original Lease is modified to
change the fraction set forth therein from "88,283/137,514" to "106,783/124,783"
as it relates to the aggregate square footage of both the Demised Premises and
the Expansion Premises and the rentable space in all of the buildings in the
Shopping Center.
8. All of the other terms and conditions of the Lease shall be applicable
to the Expansion Premises had been part of the original Demised Premises.
9. As a condition to Landlord agreeing to enter into this First Amendment,
Landlord shall require Guarantor to execute a Guaranty Agreement guaranteeing
all of the obligations of Tenant pertaining to the Expansion Premises as set
forth in this First Amendment and in the Lease. The form and substance of the
Guaranty Agreement is attached hereto as Exhibit "A".
10. Except as otherwise modified by this First Amendment, the Lease and all
of the terms, conditions, covenants and agreements contained therein remain
unchanged and continue unabated in full force and effect as to both the Demised
Premises and Expansion Premises.
EXECUTED in multiple originals as of the 11 of September, 2001.
LANDLORD:
FIESTA MART, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxx, President
TENANT:
C.A.I., L.P., a Texas limited partnership
By: CONN APPLIANCES, INC., a Texas
corporation
By: /s/ X. X. Xxxxx
------------------------------------
X. X. Xxxxx, Chief Financial Officer
GUARANTOR:
CONN APPLIANCES, INC., a Texas corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx, CEO
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EXHIBIT "A"
GUARANTY
For Value Received, CONN APPLIANCES, INC., a Texas corporation, hereinafter
called "Guarantor", in consideration of the premises and of the benefits that
will accrue (whether directly or indirectly) to Tenant and Guarantor from that
certain Shopping Center Lease Agreement, as amended, between Fiesta Mart, Inc.
as "Landlord", and C.A.I., L.P. as "Tenant", covering approximately 88,293
square feet in the Beaumont Shopping Center ("Center"), 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxx, (the "Original Lease"), which consideration
is acknowledged by Guarantor to be new, independent and sufficient, and as a
material inducement to Landlord to enter that certain First Amendment to Lease
Agreement ("First Amendment") pertaining to Tenant leasing an additional 18,500
square feet in the Center, Guarantor does hereby unconditionally, fully and
absolutely guarantee without offset or deduction, the prompt payment when due of
all sums payable by Tenant under the Original Lease and First Amendment (the
Original Lease and First Amendment being hereafter collectively referred to as
the "Lease"), and to do or cause to be done, or perform or cause to be
performed, all duties, covenants and obligations of Tenant under the Lease, for
the full Lease Term and any renewals thereof, this Guaranty constituting an
absolute and unconditional guaranty (1) of full payment, and not of collection
of all sums due under the Lease, and (2) that Tenant will perform punctually and
faithfully under and in accordance with the terms of the Lease. Guarantor
further agrees to indemnify and hold harmless Landlord from any and all losses,
damages, costs, and expenses (including, without limitation, costs of court and
attorney's fees incurred by Landlord) in the event of any default or breach by
Guarantor of its obligations under this Guaranty.
Guarantor hereby agree that Guarantor, as principal obligor, will pay or
otherwise provide for or bring about promptly when due all payments required of
Tenant under the Lease and the timely and full performance of all duties,
covenants and obligations of Tenant under the Lease, notwithstanding any fact or
circumstance, including, but not limited to, (1) the liquidation, dissolution,
receivership, insolvency or bankruptcy of Tenant, (2) the making by Tenant of an
assignment for the benefit of its creditors, (3) the reorganization,
arrangement, composition or readjustment of Tenant, or (4) any proceeding
affecting the status, existence or assets of Tenant. Without limiting the
foregoing, Guarantor expressly and specifically agrees that it will not be
necessary or required, and Guarantor shall not be entitled to require, that
Landlord shall file suit or proceed to or obtain a judgment against Tenant or
any other party, or make any effort of collection from Tenant or any other
party, or exercise any remedy or remedies provided in the Lease or by law
before, or as a condition precedent to, enforcing the liability of Guarantor
hereunder; and Guarantor, knowingly and with the express intention of
extinguishing legal rights (if any may exist), hereby waives any and all rights,
whether existing by rule, statute, general law, equity or otherwise, to assert
or require that (1) Landlord previously seek or obtain judgment against Tenant
or any other party prior to Landlord's suing Guarantor for the enforcement of
this Guaranty, or (2) Landlord joins Tenant or any other party in any suit
against Guarantor for the enforcement of this Guaranty.
Guarantor waives notice of the acceptance of this Guaranty (such acceptance
being hereby conclusively presumed). The obligations of Guarantor shall be
continuous from the date hereof until the payment and performance hereby
guaranteed has been fully paid or performed, and Guarantor's obligations
hereunder shall continue in full force and effect notwithstanding (1) any
release of Tenant or any other party liable for payment or performance under the
Lease, (2) any changes, modifications, amendments, assignments or extensions of
the Lease, or (3) any waiver or forbearance on the part of Landlord in enforcing
payment or performance by Tenant under the Lease.
Guarantor stipulates that in accordance with Article 1302-2.06, Vernon's
Annotated Civil Statutes of Texas, the directors of Guarantor have determined
that the action taken pursuant hereto may reasonably be expected to benefit the
Guarantor, directly or indirectly.
This Guaranty (1) constitutes the entire agreement between Guarantor and
Landlord and supersedes all prior agreements or understandings, both written and
oral, regarding the subject matter hereof, (2) shall inure to the benefit of
Landlord and Landlord's successors and assigns, and (3) may be modified or
amended only by a written instrument signed by Guarantor and Landlord and dated
subsequent to the date of this Guaranty.
Failure of Landlord to insist upon strict performance or observance of any
of the terms, provisions or covenants of the Lease or to exercise any right
therein contained shall not be construed as a waiver or relinquishment for the
future of any such term, provision, covenant or right, but the same shall
continue and remain in full force and effect. Receipt by Landlord of any
monetary sum or acceptance of performance of any obligation of Tenant under the
Lease with knowledge of the default or breach of any provision of the Lease
shall not be deemed a waiver of such breach.
Guarantor further agrees that in any right of action which shall accrue to
Landlord with respect to the Lease or under this Guaranty, Landlord may, at its
option, proceed against Tenant alone (without having made any prior demand upon
Guarantor or having commenced any action against Guarantor or having obtained or
having attempted to satisfy any judgment against Guarantor) or may proceed
against Guarantor and Tenant, jointly or severally, or may proceed against
Guarantor alone (without having made any prior demand upon Tenant or having
commenced any action against Tenant or having obtained or having attempted to
satisfy any judgment against Tenant other than as may be required by the Lease).
Under no circumstances shall the liability of Guarantor under this Guaranty be
terminated either with respect to any period of time when the liability of
Tenant under the Lease continues or with respect to any circumstances as to
which the liability of Tenant has not been fully discharged by performance.
Guarantor agrees that in the event that Tenant shall become insolvent or
shall be adjudicated a bankrupt, or shall file a petition for reorganization,
arrangement or other relief under any present or future provisions of the
National Bankruptcy Act, or if such a petition be filed by creditors of said
Tenant, or if Tenant shall seek a judicial readjustment of the rights of its
creditors under any present or future Federal or State law or if a receiver of
all or part of its property and assets is appointed by any State or Federal
court, no such proceeding or action taken therein shall modify, diminish or in
any way affect the liability of Guarantor under this Guaranty and the liability
of Guarantor with respect to such Lease shall be of the same scope as if
Guarantor had itself executed said Lease as the named tenant thereunder and no
"rejection" and/or "termination" of such Lease in any of the proceedings
referred to in this paragraph shall be effective to release and/or terminate the
continuing liability of Guarantor to Landlord under this Guaranty with respect
to such Lease for the remainder of the lease term stated therein unaffected by
any such "rejection" and/or "termination" in said proceedings; and if, in
connection with any of the circumstances referred to in this paragraph, Landlord
should request that Guarantor execute anew Lease for the balance of the tern of
said Lease (unaffected by any such "rejection" and/or "termination" in any of
said proceedings), but in all other respects identical with said Lease,
Guarantor shall do so as the named "Tenant" under such new Lease (irrespective
of the fact that the existing Lease may have been "rejected" or "terminated" in
connection with any proceedings referred to in this paragraph). In the event of
failure or refusal of Guarantor to execute such new Lease as herein provided,
without limiting any of the legal or equitable remedies of Landlord on account
of such failure or refusal, Guarantor agrees that Landlord shall have the right
to obtain a decree of specific performance against Guarantor.
In the event of the dissolution of Guarantor while this Guaranty is in
force, and without regard to whether Tenant shall be in default under the Lease,
no distribution or disposition of the assets of Guarantor shall be made without
first making provision acceptable to Landlord for the payment or satisfaction of
Guarantor's obligations (and contingent obligations) hereunder.
Should any portion of this Guaranty ever be held legally invalid or
unenforceable, the balance of this Guaranty shall not thereby be affected, but
shall remain in full force and effect in accordance with its terms and
provisions.
The stated rights and remedies of Landlord under this Guaranty against
Guarantor with respect to the liability of Guarantor hereunder shall be
understood as not excluding any other legal or equitable rights and remedies of
Landlord against Guarantor not expressly set forth herein, but shall be
understood as being cumulative of all such other legal and equitable rights and
remedies of Landlord not expressly stated herein.
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All terns and provisions hereof shall inure to the benefit of the
successors and assigns of Landlord and shall be binding upon the heirs, legal
representatives, administrators, successors and assigns of Guarantor.
EXECUTED by Guarantor on the day and year shown opposite Guarantor's
signature below.
Date: , 2001 CONN APPLIANCES, INC.,
------------------------------ a Texas Corporation
By:
---------------------------
Xxxxxx X. Xxxxx, CEO
-3-
GUARANTY
For Value Received, CONN APPLIANCES, INC., a Texas corporation, hereinafter
called "Guarantor", in consideration of the premises and of the benefits that
will accrue (whether directly or indirectly) to Tenant and Guarantor from that
certain Shopping Center Lease Agreement, as amended, between Fiesta Mart, Inc.
as "Landlord", and C.A.I., L.P. as "Tenant", covering approximately 88,293
square feet in the Beaumont Shopping Center ("Center"), 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxx, (the "Original Lease"), which consideration
is acknowledged by Guarantor to be new, independent and sufficient, and as a
material inducement to Landlord to enter that certain First Amendment to Lease
Agreement ("First Amendment") pertaining to Tenant leasing an additional 18,500
square feet in the Center, Guarantor does hereby unconditionally, fully and
absolutely guarantee without offset or deduction, the prompt payment when due of
all sums payable by Tenant under the Original Lease and First Amendment (the
Original Lease and First Amendment being hereafter collectively referred to as
the "Lease"), and to do or cause to be done, or perform or cause to be
performed, all duties, covenants and obligations of Tenant under the Lease, for
the full Lease Tern and any renewals thereof, this Guaranty constituting an
absolute and unconditional guaranty (1) of full payment, and not of collection
of all sums due under the Lease, and (2) that Tenant will perform punctually and
faithfully under and in accordance with the terns of the Lease. Guarantor
further agrees to indemnify and hold harmless Landlord from any and all losses,
damages, costs, and expenses (including, without limitation, costs of court and
attorney's fees incurred by Landlord) in the event of any default or breach by
Guarantor of its obligations under this Guaranty.
Guarantor hereby agree that Guarantor, as principal obligor, will pay or
otherwise provide for or bring about promptly when due all payments required of
Tenant under the Lease and the timely and full performance of all duties,
covenants and obligations of Tenant under the Lease, notwithstanding any fact or
circumstance, including, but not limited to, (1) the liquidation, dissolution,
receivership, insolvency or bankruptcy of Tenant, (2) the making by Tenant of an
assignment for the benefit of its creditors, (3) the reorganization,
arrangement, composition or readjustment of Tenant, or (4) any proceeding
affecting the status, existence or assets of Tenant. Without limiting the
foregoing, Guarantor expressly and specifically agrees that it will not be
necessary or required, and Guarantor shall not be entitled to require, that
Landlord shall file suit or proceed to or obtain a judgment against Tenant or
any other party, or make any effort of collection from Tenant or any other
party, or exercise any remedy or remedies provided in the Lease or by law
before, or as a condition precedent to, enforcing the liability of Guarantor
hereunder; and Guarantor, knowingly and with the express intention of
extinguishing legal rights (if any may exist), hereby waives any and all rights,
whether existing by rule, statute, general law, equity or otherwise, to assert
or require that (1) Landlord previously seek or obtain judgment against Tenant
or any other party prior to Landlord's suing Guarantor for the enforcement of
this Guaranty, or (2) Landlord joins Tenant or any other party in any suit
against Guarantor for the enforcement of this Guaranty.
Guarantor waives notice of the acceptance of this Guaranty (such acceptance
being hereby conclusively presumed). The obligations of Guarantor shall be
continuous from the date hereof until the payment and performance hereby
guaranteed has been fully paid or performed, and Guarantor's obligations
hereunder shall continue in full force and effect notwithstanding (1) any
release of Tenant or any other party liable for payment or performance under the
Lease, (2) any changes, modifications, amendments, assignments or extensions of
the Lease, or (3) any waiver or forbearance on the part of Landlord in enforcing
payment or performance by Tenant under the Lease.
Guarantor stipulates that in accordance with Article 1302-2.06, Vernon's
Annotated Civil Statutes of Texas, the directors of Guarantor have determined
that the action taken pursuant hereto may reasonably be expected to benefit the
Guarantor, directly or indirectly.
This Guaranty (1) constitutes the entire agreement between Guarantor and
Landlord and supersedes all prior agreements or understandings, both written and
oral, regarding the subject matter hereof, (2) shall inure to the benefit of
Landlord and Landlord's successors and assigns, and (3) may be modified or
amended only by a written instrument signed by Guarantor and Landlord and dated
subsequent to the date of this Guaranty.
Failure of Landlord to insist upon strict performance or observance of any
of the terms, provisions or covenants of the Lease or to exercise any right
therein contained shall not be construed as a waiver or relinquishment for the
future of any such term, provision, covenant or right, but the same shall
continue and remain in full force and effect. Receipt by Landlord of any
monetary sum or acceptance of performance of any obligation of Tenant under the
Lease with knowledge of the default or breach of any provision of the Lease
shall not be deemed a waiver of such breach.
Guarantor further agrees that in any right of action which shall accrue to
Landlord with respect to the Lease or under this Guaranty, Landlord may, at its
option, proceed against Tenant alone (without having made any prior demand upon
Guarantor or having commenced any action against Guarantor or having obtained or
having attempted to satisfy any judgment against Guarantor) or may proceed
against Guarantor and Tenant, jointly or severally, or may proceed against
Guarantor alone (without having made any prior demand upon Tenant or having
commenced any action against Tenant or having obtained or having attempted to
satisfy any judgment against Tenant other than as may be required by the Lease).
Under no circumstances shall the liability of Guarantor under this Guaranty be
terminated either with respect to any period of time when the liability of
Tenant under the Lease continues or with respect to any circumstances as to
which the liability of Tenant has not been fully discharged by performance.
Guarantor agrees that in the event that Tenant shall become insolvent or
shall be adjudicated a bankrupt, or shall file a petition for reorganization,
arrangement or other relief under any present or future provisions of the
National Bankruptcy Act, or if such a petition be filed by creditors of said
Tenant, or if Tenant shall seek a judicial readjustment of the rights of its
creditors under any present or future Federal or State law or if a receiver of
all or part of its property and assets is appointed by any State or Federal
court, no such proceeding or action taken therein shall modify, diminish or in
any way affect the liability of Guarantor under this Guaranty and the liability
of Guarantor with respect to such Lease shall be of the same scope as if
Guarantor had itself executed said Lease as the named tenant thereunder and no
"rejection" and/or "termination" of such Lease in any of the proceedings
referred to in this paragraph shall be effective to release and/or terminate the
continuing liability of Guarantor to Landlord under this Guaranty with respect
to such Lease for the remainder of the lease term stated therein unaffected by
any such "rejection" and/or "termination" in said proceedings; and if, in
connection with any of the circumstances referred to in this paragraph, Landlord
should request that Guarantor execute a new Lease for the balance of the term of
said Lease (unaffected by any such "rejection" and/or "termination" in any of
said proceedings), but in all other respects identical with said Lease,
Guarantor shall do so as the named "Tenant" under such new Lease (irrespective
of the fact that the existing Lease may have been "rejected" or "terminated" in
connection with any proceedings referred to in this paragraph). In the event of
failure or refusal of Guarantor to execute such new Lease as herein provided,
without limiting any of the legal or equitable remedies of Landlord on account
of such failure or refusal, Guarantor agrees that Landlord shall have the right
to obtain a decree of specific performance against Guarantor.
In the event of the dissolution of Guarantor while this Guaranty is in
force, and without regard to whether Tenant shall be in default under the Lease,
no distribution or disposition of the assets of Guarantor shall be made without
first making provision acceptable to Landlord for the payment or satisfaction of
Guarantor's obligations (and contingent obligations) hereunder.
Should any portion of this Guaranty ever be held legally invalid or
unenforceable, the balance of this Guaranty shall not thereby be affected, but
shall remain in full force and effect in accordance with its terms and
provisions.
The stated rights and remedies of Landlord under this Guaranty against
Guarantor with respect to the liability of Guarantor hereunder shall be
understood as not excluding any other legal or equitable rights and remedies of
Landlord against Guarantor not expressly set forth herein, but shall be
understood as being cumulative of all such other legal and equitable rights and
remedies of Landlord not expressly stated herein.
-2-
All terms and provisions hereof shall inure to the benefit of the
successors and assigns of Landlord and shall be binding upon the heirs, legal
representatives, administrators, successors and assigns of Guarantor.
EXECUTED by Guarantor on the day and year shown opposite Guarantor's
signature below.
Date: Sept.11, 2001 CONN APPLIANCES, INC.,
a Texas Corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx, CEO
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