EXHIBIT 10.8
LEASE AGREEMENT
between
XXXXXXXX X. XXXXXXX
as
Landlord
and
ADVANCE STORES COMPANY, INCORPORATED
as
Tenant
TABLE OF CONTENTS
Paragraph Title or Subject Page No.
Parties 1
Leased Premises 1
1 Term 1
2 Rent 1
3 Taxes 2
4 Insurance 3
5 Tenant's Furnishings, Fixtures and 6
Equipment
6 Alterations and Additions 7
7 Maintenance and Repairs 8
8 Utilities 8
9 Use 9
10 Signs 9
11 Assignment or Subletting 9
12 Damage by Casualty 10
13 Condemnation 12
14 Default 13
15 Notices and Rent Payments 16
16 Miscellaneous 17
A Identity of Interest 17
B Quiet Enjoyment 17
C Holding Over 18
D Surrender of Leased Premises 18
E Landlord's Exoneration 18
F Right of Entry 18
G Compliance with Laws and Insurance 19
H Performance of Tenant's Obligations 19
I Subordination 20
J Estoppel Certificates 20
K Late Payment Penalty 20
L Additional Rent 21
M Net Lease 21
N Excusable Delay 21
O Indemnification of Landlord 22
P Non-Waiver 22
Q Short Form Lease 22
R Governing Law 22
S Number and Gender 23
T Additional Instruments 23
U Severability 23
V Captions 23
W Counterparts 23
X Binding Effect 23
Y Entire Agreement 24
Execution by Parties
Notary Acknowledgment
Exhibit "A"
LEASE AGREEMENT
---------------
This LEASE AGREEMENT (herein the "lease") is made December _______,
1996, by and between XXXXXXXX X. XXXXXXX, (herein the "Landlord"); and ADVANCE
STORES COMPANY, INCORPORATED, a Virginia corporation, (herein the "Tenant").
WITNESSETH:
THAT in consideration of the rental reserved herein and the mutual
covenants and agreements herein contained, Landlord hereby demises and leases
unto Tenant that certain parcel of real property, together with the buildings
and improvements thereon, as more particularly described in Exhibit "A" attached
hereto and made a part hereof by this reference (herein the "Leased Premises").
1. Term: The term of this lease shall be ten (10) years and shall
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commence at 12:01 a.m. January 1, 1997 and terminate at midnight on December 31,
2006.
2. Rent: Tenant shall pay to Landlord, without notice or demand, a
----
monthly rental of $ 108,333.33, which shall be payable, in advance, on the first
day of each month during the term of this lease. All payments of rent shall be
made by Tenant to Landlord at such place as Landlord may from time to time
designate in writing. For the present, Landlord
-1- LANDLORD _________________
TENANT ___________________
designates the place designated in paragraph 15 of this lease as the place for
the making of the payments of rent. All rent shall be payable in current legal
tender of the United States of America as the same is then by law constituted.
Checks must be drawn on a Virginia bank and are subject to collection. The
extension of time for the payment of any installment of rent, or the acceptance
by Landlord of any money other than of the kind herein specified, shall not be a
waiver of the rights of Landlord to insist on having all other payments of rent
made in the manner and at the time herein specified. No payment by Tenant or
receipt by Landlord of a lesser amount than the aforesaid monthly rent shall be
deemed other than a payment on account of the earliest rent due, nor shall any
endorsement or statement on any check or on any letter accompanying any check or
payment as rent be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to his right to recover the balance of
the rent or to pursue any other remedy provided for in this lease.
3. Taxes: Tenant shall pay all taxes, assessments and other charges
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imposed upon the Leased Premises which are assessed during the lease term. All
such taxes and assessments shall be paid before any fine, penalty, interest or
cost may be added thereto for nonpayment thereof. All taxes, assessments, rents
or other charges imposed prior to but payable in whole or in installments after
the effective date of the lease term, and all taxes, assessments or other
charges imposed during the term but payable in whole or in installments after
the lease term, shall be adjusted and prorated, so that Landlord shall pay his
prorated share for the period prior to and for the period subsequent to the
lease term and Tenant shall pay its prorated share for the lease term. Tenant
shall furnish to Landlord for his inspection within thirty (30) days
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TENANT ____________________
after the date any amount is payable by Tenant, as provided in this paragraph,
official receipts of the appropriate taxing authority or proof satisfactory to
Landlord evidencing payment.
Tenant shall have the right to contest and review by legal
proceedings, instituted and conducted by Tenant at Tenant's own expense and free
of expense to Landlord, any taxes, assessments or other charges imposed upon or
against the Leased Premises. In the event Tenant exercises its right to review
by legal proceedings any such taxes, assessments or other charges imposed upon
or against the Leased Premises, Tenant shall continue to pay as the same become
due and payable the full amount of such taxes, assessments or other charges
under protest, if it be so advised. The term "legal proceedings" as here used
shall be construed as including appropriate appeals of any judgments, decrees,
orders and certiorari proceedings and appeals of orders therein, to and
including appeals to the court of last resort.
4. Insurance:
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A. Insurance: Tenant shall during the lease term, at its sole
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expense, provide and keep in force the following insurance coverage:
(1) Fire and Extended Coverage: Insurance on the Leased
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Premises against loss or damage by fire and such other risks as may be included
in the broadest form of extended coverage from time to time available in amounts
at all times sufficient to prevent Landlord or Tenant from becoming a coinsurer
under the terms of the applicable policies but, in any event, in an amount not
less than 100% of the then full insurable value of the Leased Premises. "Full
insurable value" shall mean actual replacement value (exclusive of costs of
excavation, foundations and footings).
-3- LANDLORD _________________
TENANT ____________________
(2) Rental Value: Rental insurance against loss of rent
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under a rental value insurance policy covering risk of loss due to the
occurrence of any of the hazards described in the preceding subparagraph in an
amount sufficient to pay for one year the rent and additional rent payable
pursuant to this lease. Any proceeds received by Landlord under rent insurance
policies will be credited as received against the rent due.
(3) Liability: Comprehensive general public liability
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insurance insuring against claims for personal injury, death or property damage
occurring on, in or about the Leased Premises or arising out of the conduct by
the Tenant of its business at the Leased Premises. The limits of such insurance
shall be in such amounts as may be reasonably requested by Landlord from time to
time, but not less than $1,000,000.00 for injury or property damage arising out
of any one occurrence.
(4) Umbrella/Excess Coverage: Umbrella or excess liability
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insurance with limits of not less than $10,000,000.
(5) Miscellaneous: Such other insurance against other
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insurable hazards in such amounts as may from time to time be required by
Landlord or by the holder of any mortgage or deed of trust covering the Leased
Premises.
B. Policies: All insurance provided for in this paragraph shall
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be effected under policies issued by insurers of recognized responsibility
licensed to do business in Virginia. Tenant shall, throughout the term of this
lease, deliver to Landlord evidence, in the form of an insurance certificate or
binder, that such insurance policies are in effect. Within fifteen (15) days
after the premium on any policy shall become due and payable, Landlord shall be
furnished with satisfactory evidence of its payment.
-4- LANDLORD _________________
TENANT ___________________
C. Insureds: The rental value insurance policy above described
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shall name only Landlord as the insured. However, Tenant may furnish a combined
rental and use and occupancy policy, provided that Landlord shall be named as
the insured and the first payee with respect to an amount equal to the rent and
additional rent, and Tenant shall be named as the payee with respect to any
remaining proceeds. All other policies of insurance shall name Landlord and
Tenant as the insureds, as their respective interests may appear. At the request
of Landlord, any insurance policy shall be made payable to the holders of any
mortgage or deeds of trust to which this lease is at any time subordinate, as
the interest of such holders may appear, pursuant to a standard clause for
holders of mortgages or deeds of trust. To the extent obtainable, all policies
shall contain an agreement by the insurers (1) that any loss shall be payable to
Landlord or the holders of any such mortgage or deed of trust, notwithstanding
any act or negligence of Tenant which might otherwise result in forfeiture of
such insurance, (2) that such policies shall not be canceled except upon ten
(10) days prior written notice to Landlord and to the holders of any mortgage or
deed of trust to whom loss may be payable, and (3) that the insurance coverage
shall not be affected by the performance of any work in or about the Leased
Premises.
-5- LANDLORD _________________
TENANT ___________________
D. Waiver of Subrogation: Neither Landlord nor Tenant shall be
---------------------
liable to the other for any business interruption or any loss or damage to
property or injury to or death of persons occurring in the Leased Premises or in
any manner growing out of or connected with Tenant's use and occupation of the
Leased Premises or the condition thereof, whether or not caused by the
negligence or other fault of Landlord or Tenant, or of their respective agents,
employees, subtenants, licensees, or assignees. This release shall apply to the
extent that such business interruption, loss, or damage to property or injury to
or death of persons is covered by insurance, regardless of whether such
insurance is payable to or protects Landlord or Tenant, or both. Nothing herein
shall be construed to impose any other or greater liability upon either Landlord
or Tenant than would have existed in the absence of this provision. This release
shall be in effect only so long as the applicable insurance policies contain a
clause to the effect that this release shall not affect the right of the insured
to recover under such policies. Such clauses shall be obtained by the parties
whenever possible. The release in favor of Landlord contained herein, is in
addition to, and not in substitution for, or in diminution of the hold harmless
and indemnification provisions hereof.
5. Tenant's Furnishings, Fixtures and Equipment: Tenant, at its sole
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and cost expense, may supply and install in the Leased Premises any furnishings,
fixtures or 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. Any such furnishings,
fixtures and equipment supplied and installed in the Leased
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TENANT ___________________
Premises, except those permanently attached, shall be and remain the property of
Tenant provided Tenant is not in default in the performance of any 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.
6. Alterations and Additions: Tenant shall not make or permit to be
-------------------------
made any alterations, improvements, and/or additions of any kind or nature to
the Leased Premises or any part thereof except by and with the prior consent of
Landlord which consent shall be in Landlord's sole discretion. All alterations,
improvements and additions to the Leased Premises shall be made in accordance
with all applicable laws and shall at once when made or installed be deemed to
have attached to the freehold and to have become the property of Landlord and
shall remain for the benefit of Landlord at the end of the term, or other
expiration of this lease, in as good order and condition as they were when
installed, reasonable wear and tear excepted; provided, however, if prior to the
termination of this lease, or within fifteen (15) days thereafter, Landlord so
directs, Tenant shall promptly remove the additions, improvements, fixtures and
installations which were placed in the Leased Premises by Tenant and which are
designated in said notice and repair any damage occasioned by such removal and
in default thereof Landlord may effect said removals and repairs at Tenant's
expense. In the event of making such alterations, improvements, and/or additions
as herein provided, Tenant shall indemnify and save harmless Landlord from all
expense, liens, claims, or damages to either persons or property arising out of,
or resulting from the undertaking or making of said alterations, additions, and
improvements.
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TENANT ___________________
7. Maintenance and Repairs: Tenant shall not cause or permit any
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waste, damage, or injury to the Leased Premises. Tenant, at its sole expense,
shall keep the Leased Premises as now or hereafter constituted with all
improvements made thereto and the adjoining sidewalks, curbs, walls, parking
areas, landscaping and access roads, clean and in good condition (reasonable
wear and tear excepted), free of dirt, rubbish, snow, ice, and unlawful
obstructions, and shall make all repairs, replacements, and renewals, whether
ordinary or extraordinary, seen or unforeseen, including all structural repairs
necessary to maintain the Leased Premises. All repairs, replacements, and
renewals shall be at least equal in quality of materials and workmanship to that
originally existing in the Leased Premises. Landlord shall in no event be
required to make any repair, alteration, or improvement to the Leased Premises.
Tenant shall indemnify Landlord against all costs, expenses, liabilities,
losses, damages, suits, fines, penalties, claims, and demands, including
reasonable attorney's fees, because of Tenant's failure to comply with the
foregoing, and Tenant shall not call upon Landlord for any disbursement or
outlay whatsoever in connection therewith, and expressly releases and discharges
Landlord of and from any liability therefor.
8. Utilities: Tenant shall pay or cause to be paid all charges for
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air conditioning, heat, water, gas, electricity, light, telephone or any other
communication or utility service used in or rendered or supplied to the Leased
Premises throughout the term of this lease, and to indemnify Landlord and save
him harmless against any liability or damages on such account. Landlord shall
not be liable in damages or otherwise for any failure to furnish, or
interruption of the services of air conditioning, heat, water, gas, electricity,
light, telephone or any other communication or utility.
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TENANT ___________________
9. Use: Tenant may use and occupy the Leased Premises for any lawful
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purposes, except that Tenant shall not use or occupy or permit the Leased
Premises to be used or occupied, nor do or permit anything to be done in or on
the Leased Premises, in a manner which will in any way violate any certificate
of occupancy affecting the Leased Premises, or make void or voidable any
insurance then in force with respect thereto, or which will make it impossible
to obtain fire or other insurance required to be furnished by Tenant hereunder,
or which will cause or be likely to cause structural damage to the building(s)
or any part thereof, or which will constitute a public or private nuisance, and
shall not use or occupy or permit the Leased Premises to be used or occupied in
any manner which will violate any present or future laws or regulations of any
governmental authority.
10. Signs: Tenant shall have the privilege of placing on and in the
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Leased Premises such signs as Tenant deems necessary and proper in the conduct
of Tenant's business, provided (i) Tenant obtains all permits and licenses which
may be required for the erection and maintenance thereof and pays the fees for
such licenses and permits, and (ii) such signs may lawfully be permitted to be
erected and maintained. Tenant shall indemnify and save harmless Landlord
against and from any and all losses, damages, claims, suits, or actions for any
injury or damage to person or property caused by the erection and maintenance of
such signs, and insurance coverage therefor shall be included in the public
liability policy which Tenant is required to furnish under this lease.
11. Assignment or Subletting: Tenant shall not assign, mortgage or
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encumber this lease, nor sublet or permit the Leased Premises or any part
thereof to be used by others,
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TENANT ___________________
without the prior written consent of Landlord in each instance, which consent
shall be in Landlord's sole discretion. The prohibition against assignment or
subletting shall be construed to include a prohibition against any assignment or
subletting by operation of law. If Landlord consents to an assignment or
subletting, Tenant shall remain primarily liable during the term of this lease
for the performance of all the terms of this lease, and any such consent shall
not be construed to release Tenant from obtaining the consent in writing of
Landlord to any further assignment or subletting.
12. Damage by Casualty:
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A. Landlord's Election to Terminate or Rebuild: If the Leased
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Premises shall be damaged or destroyed, in whole or in part, during the term of
this lease by fire or other casualty, then Landlord shall have the option to
rebuild or terminate this lease to be exercised by notice to Tenant given not
more than sixty (60) days from the date of such damage or destruction.
B. Termination: If Landlord elects to terminate this lease as
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provided by subparagraph A of this paragraph, the rent and additional rent to be
paid by Tenant hereunder shall be apportioned as of the date of damage or
destruction.
C. Rebuilding: If Landlord elects to rebuild the Leased
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Premises as provided by subparagraph A of this paragraph, this lease shall
continue in full force and effect and Landlord shall, at his expense, but only
from insurance proceeds released by the holder of any mortgage lien upon the
Leased Premises, restore the same to substantially the condition the Leased
Premises were in immediately prior to such damage or destruction except as
otherwise
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TENANT ___________________
provided in this paragraph 12. Landlord's obligation under this paragraph shall
in no event exceed the scope of the work required by Landlord in the original
construction of the Leased Premises. Landlord shall not be required to, but
Tenant shall, replace or restore any furnishings, fixtures or equipment it may
have installed in the Leased Premises pursuant to paragraph 5 of this Lease. The
parties shall promptly commence and diligently proceed with their restoration
obligations hereunder. If Landlord elects to rebuild as aforesaid, then the
rent and additional rent shall xxxxx proportionately during the period and to
the extent that the Leased Premises are unfit for use by Tenant in the ordinary
conduct of its permitted uses hereunder. Notwithstanding the foregoing
provisions, in the event the Leased Premises are damaged or destroyed by fire or
other casualty due to the fault or neglect of Tenant, its agents, employees or
invitees, then, without prejudice to any other rights and remedies of Landlord,
there shall be no apportionment or abatement of any rent.
D. Continuing Obligations: Except as otherwise provided in this
----------------------
lease, this lease shall not terminate or be affected in any manner by reason of
the damage or destruction, by fire or other casualty, in whole or in part, of
the Leased Premises or the improvements thereon, or by reason of the
untenantability of the Leased Premises and, except as otherwise provided herein,
the rent and additional rent reserved in this lease shall be paid by Tenant in
accordance with the terms of this lease, without abatement, diminution or
reduction of rent on account of any such damage or destruction
-11- LANDLORD _________________
TENANT ___________________
13. Condemnation:
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A. Total: If the whole of the Leased Premises shall be acquired or
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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 on the date when possession shall be taken by
the condemning authority.
B. Partial: If any part of the Leased Premises shall be so taken,
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Landlord may elect to terminate this lease or to continue same in effect to be
exercised by notice to Tenant given not more than sixty (60) days from the date
when possession shall be taken by the condemning authority. If Landlord elects
to continue this lease, then all of the terms and provisions hereof shall
continue in full force and effect, except that the rent shall be reduced in
proportion to the area, if any, of the premises so taken and Landlord shall
proceed with so much of the restoration of the Leased Premises in order to
restore same to substantially the condition it was in immediately prior to such
taking; provided, however, that in no event shall Landlord be required to expend
any amounts therefore in excess of the net condemnation award. In the preceding
sentence "net" shall mean the amount remaining after the expenses of collection,
including as expenses any attorney's fees or other charges incurred by Landlord
with respect to such amount. Landlord shall not be required to restore any
furnishings, fixtures or equipment installed by Tenant pursuant to paragraph 5
of this lease. The parties shall promptly commence and diligently proceed with
their restoration obligations hereunder.
C. Rent: If this Lease is terminated as provided in this
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paragraph, the rent and additional rent shall be paid by Tenant up to the date
that physical possession is taken
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TENANT _________________
by the condemning authority, and Landlord shall refund any rent and additional
rent paid by Tenant in advance and not yet earned, less any sum then owing by
Tenant to Landlord.
D. Award: All damages or compensation awarded or paid for any
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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 all work performed by Tenant pursuant to paragraphs 5 and 6 of this
lease as may be recoverable by Tenant in Tenant's own right.
14. Default:
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A. Defaults: If (i) Tenant defaults in the payment of any rent
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or any additional rent and such default continues for five (5) days after the
same has become due, or (ii) Tenant defaults in fulfilling any of the covenants
or agreements of this lease on its part to be kept or performed, and such
default is not cured or commenced to be cured (and diligently prosecuted to
completion) within ten (10) days after written notice from Landlord or his
agent, or (iii) if this lease be transferred to or devolve upon any person or
corporation or other entity other than Tenant, except as may be specifically
permitted by this lease, then and in any of such events Landlord, or his agent,
may give Tenant a written notice specifying a day not less than five (5) days
thereafter whereupon the term shall end, and on the day specified the term of
this lease shall expire as if that day were the day herein fixed for the
expiration of the term, and Tenant shall then quit and surrender the Leased
Premises to Landlord and Tenant shall remain liable as hereinafter provided.
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TENANT ____________________
B. Abandonment: If Tenant vacates or abandons the Leased
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Premises, or if the Leased Premises become vacant for a period of three (3)
days, or if the term of this lease shall expire, Landlord may reenter the Leased
Premises and remove Tenant or its legal representatives or other occupant by
summary proceedings or otherwise and Tenant waives the service of notice of
intention to reenter or to institute legal proceedings to that end.
C. Reentry: In case of any such reentry, expiration, and/or
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dispossess by summary proceedings otherwise, the rent shall become due thereupon
and be paid up to the time of such reentry, dispossess, and/or expiration,
together with such expenses as Landlord may incur for brokerage and/or putting
the Leased Premises in good order, or for preparing the same for re-rental.
Landlord may relet the premises or any part or parts thereof, either in the name
of Landlord or otherwise, for a term or terms which may, at Landlord's option,
be less than or exceed the period which may otherwise have constituted the
balance of the term of this lease and may grant reasonable concessions, or free
rent; and Tenant or the legal representatives of Tenant shall pay Landlord, as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between (i) all rent and
additional rent hereby reserved and/or covenanted to be paid, and (ii) the net
amount, if any, of the rents collected on account of the lease of the Leased
Premises for each month of the period which would otherwise have constituted the
balance of the term of this lease. In computing such liquidated damages, there
shall be added to the deficiency such expenses as Landlord may incur in
connection with reletting, such as for brokerage, for keeping the Leased
Premises in good order, and for preparing the same for reletting. Any such
liquidated damages
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TENANT ____________________
shall be paid in monthly installments by Tenant on the rent days specified in
this lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Landlord to collect the
deficiency for any subsequent month by a similar proceeding. Landlord, in his
discretion, may make such alterations, repairs, replacements, and/or decorations
in the Leased Premises as may be necessary for the purpose of reletting the
Leased Premises; and the making of such alterations and/or decorations shall not
operate or be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall not be liable for failure to relet the Leased Premises. The words
"reenter" or "reentry" as used in this lease shall not be restricted to their
technical legal meaning.
D. Injunctive Relief: In the event of a breach or threatened
-----------------
breach by Tenant of any of the covenants or provisions of this lease, Landlord
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if reentry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy shall not
preclude Landlord from any other remedy, in law or in equity. Tenant expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant's being evicted or dispossessed, or in the
event of Landlord's obtaining possession of the Leased Premises by reason of
Tenant's violation of the provisions of this lease.
E. Cure Defaults: If Tenant shall default in the performance of
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any provision, covenant or condition on its part to be performed under this
lease, Landlord may, at his option, perform the same for the account and at the
expense of Tenant. If Landlord at any
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TENANT ____________________
time shall be compelled to pay or elects to pay any sum of money or do any act
which requires the payment of any sum of money by reason of the failure of the
Tenant to comply with any provision of this lease, or if Landlord incurs any
expense in prosecuting or defending any action or proceeding by reason of any
default of Tenant under this lease, the sums so paid by Landlord, with interest
at the rate of 12% per annum, costs and damages shall be due from and be paid by
Tenant to Landlord on demand.
F. Chronic Defaults: Tenant will be in "Chronic Default" under
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this lease if Tenant commits a default (either a Monetary or Non-Monetary
Default) during any 365-day period in which any of the following combinations of
default has already occurred (even though said defaults may have been timely
cured): (i) Two Monetary Defaults; or (ii) Three Non-Monetary Defaults; or (iii)
One Monetary Default and two Non-Monetary Defaults. If Tenant is in Chronic
Default, Landlord may immediately exercise any or all remedies available under
this lease or at law or in equity, all without giving Tenant any notice or an
opportunity to cure the last default causing Tenant's Chronic Default
(notwithstanding any notice and cure provision or other lease provision to the
contrary). For the purposes of this paragraph, (i) a Monetary Default occurs if
Tenant fails to pay any sum of money when due (including, but not limited to,
basic rent, additional rent, and all other charges imposed upon Tenant by this
lease; and (ii) a Non-Monetary Default occurs if Tenant fails to perform any of
its obligations under this lease other than the timely payment of money.
15. Notices and Rent Payments:
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A. Notices: Notices under this lease shall be deemed to have
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been given if in writing, and when deposited in the United States mail,
certified, return receipt
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TENANT ____________________
requested, with postage prepaid, and addressed as follows:
To Landlord At: Xxxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxxx 00000
To Tenant At: Advance Stores Company, Incorporated
XX Xxx 0000
Xxxxxxx, Xxxxxxxx 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
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shall be mailed to Landlord at the address provided for in subparagraph A of
this paragraph.
16. Miscellaneous:
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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. Quiet Enjoyment: Tenant, upon payment of the rent and
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additional rent, and the performance of all the terms of this lease, shall, at
all times during the
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TENANT ____________________
lease term, peaceably and quietly enjoy the Leased Premises without any
disturbance from Landlord or from any other person claiming through Landlord,
subject, however, to the reservations and conditions of this lease and the fee
mortgage to which this lease is subordinate.
C. 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 monthly rent herein reserved, plus 50% of such
amount, and such tenancy shall otherwise be subject to the terms and conditions
set forth in this lease.
D. Surrender of Leased Premises: Tenant shall surrender to
----------------------------
Landlord the Leased Premises at the expiration of the term hereof, or upon
termination by virtue of Tenant's default, in as good order and condition as
same now are or hereafter may be put by Landlord or Tenant, ordinary wear and
tear and damage by fire or other casualty not occasioned by the fault of Tenant
excepted.
E. Landlord's Exoneration: Landlord shall not be liable or
----------------------
responsible in any way for any damage to person or property sustained in or
about the Leased Premises during the term of this lease howsoever the same may
be caused unless due to Landlord's willful acts.
F. Right of Entry: Landlord and his representatives may enter
--------------
the Leased Premises, at any reasonable time, for the purpose of inspecting the
Leased Premises, performing any work which Landlord elects to undertake made
necessary by reason of Tenant's default under the terms of this lease,
exhibiting the Leased Premises for sale, lease, or mortgage financing, or
posting notices of non-responsibility under any mechanic's lien law.
-18- LANDLORD _________________
TENANT ____________________
G. Compliance with Laws and Insurance: Tenant shall, at its
----------------------------------
sole expense, promptly comply with all laws, orders, and regulations of federal,
state, and municipal governments and appropriate departments, commissions,
authorities, boards, and their officers, and the orders and regulations of the
National Board of Fire Underwriters, or any other body now or hereafter
exercising similar functions, which may be applicable to the Leased Premises,
the fixtures and equipment therein, and the parking areas, sidewalks and curbs
adjoining the Leased Premises. Tenant shall comply with the requirements of all
policies of public liability, fire, and all other types of insurance at any time
in force with respect to the building and other improvements on the Leased
Premises. Tenant, at its sole expense, shall obtain all required licenses or
permits for the conduct of its business within the terms of this lease, or for
the making of repairs, alterations, improvements, or additions, and Landlord,
where necessary, will join with Tenant in applying for all such permits or
licenses.
H. Performance of Tenant's Obligations: If Tenant shall default
-----------------------------------
in the observance or performance of any covenant on Tenant's part to be observed
or performed under any of the provisions of this lease, Landlord may immediately
or at any time thereafter and without notice perform the same for the account of
Tenant, and if Landlord makes any expenditures or incurs any obligations for the
payment of money in connection therewith including, but not limited to, legal
fees in instituting, prosecuting, or defending any action or proceeding, such
sums paid or obligations incurred, with 12% interest per annum and costs, shall
be paid by Tenant to Landlord upon demand. Furthermore, Tenant shall pay and
indemnify Landlord against all legal costs and charges, including attorney's
fees lawfully and
-19- LANDLORD _________________
TENANT ____________________
reasonably incurred, in obtaining possession of the Leased Premises after a
default of Tenant or after Tenant's default in surrendering possession upon the
expiration or earlier termination of the term of this lease.
I. Subordination: This lease is subject and subordinate at all
-------------
times to the lien of existing and future mortgages on the Leased Premises.
Although no instrument or act on the part of Tenant shall be necessary to
effectuate such subordination, Tenant will, nevertheless, execute and deliver
such further instruments subordinating this lease to the lien of all such
mortgages as may be desired by the mortgagee. Tenant hereby appoints Landlord
its attorney-in-fact, irrevocably, to execute and deliver any such instrument
for Tenant.
J. Estoppel Certificates: Within ten (10) days after request
---------------------
therefor by Landlord, Tenant shall deliver in recordable form a certification to
any proposed mortgagee, trustee, or purchaser, certifying that this lease is in
full force and effect and that there are no defenses or offsets thereto, or
stating those claimed by Tenant.
K. Late Payment Penalty: Tenant acknowledges that late payment
--------------------
by Tenant to Landlord of rent and additional rent due hereunder will cause
Landlord to incur costs not contemplated by this lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed covering the
Leased Premises. Accordingly, if any installment of rent or any additional rent
due from Tenant shall not be received by Landlord or Landlord's designee within
ten (10) days after such amount shall be due, Tenant shall pay to Landlord a
late charge equal to 10% of such
-20- LANDLORD _________________
TENANT ____________________
overdue amount. The parties agree that such late charge represents a fair and
reasonable estimate of the costs Landlord will incur by reason of late payment
by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
L. Additional Rent: All taxes, charges, costs, and expenses
---------------
which Tenant is required to pay hereunder, together with all interest and
penalties that may accrue thereon in the event of Tenant's failure to pay such
amounts, and all damages, costs, and expenses which Landlord may incur by reason
of any default of Tenant or failure on Tenant's part to comply with the terms of
this lease, shall be deemed to be additional rent and, in the event of
nonpayment by Tenant, Landlord shall have all the rights and remedies with
respect thereto as Landlord has for the nonpayment of the basic rent.
M. Net Lease: Tenant acknowledges and agrees that it is
---------
intended that this is a net lease that is completely carefree to Landlord,
except as expressly set out in this lease; that Landlord is not responsible
during the term of this lease for any costs, charges, expenses, and outlays of
any nature whatsoever arising from or relating to the Leased Premises, or the
use and occupancy thereof, or the contents thereof, or the business carried on
therein; and Tenant shall pay all charges, expenses, costs and outlays of every
nature and kind relating to the Leased Premises except as expressly set out in
this lease.
N. Excusable Delay: Except for the payment of rent and
---------------
additional rent, if Landlord or Tenant is delayed or prevented from performing
any of their obligations
-21- LANDLORD _________________
TENANT ____________________
under this lease by reason of strike or labor troubles or any outside cause
whatsoever beyond Landlord's or Tenant's 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.
O. Indemnification of Landlord: Tenant shall defend, indemnify
---------------------------
and hold Landlord harmless from and against any claim, loss, expense or damage
to any person or property in or upon the Leased Premises, arising out of
Tenant's use or occupancy of said premises, or any act or neglect of Tenant or
Tenant's servants, employees or agents, or any change, alteration or improvement
made by Tenant in the Leased Premises.
P. Non-Waiver: The failure of Landlord to seek redress for
----------
violation of, or to insist upon the strict performance of, any covenant or
condition of this lease, or of any originally constituted a violation, from
having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this lease
shall not be deemed a waiver of such breach. No provision of this lease shall be
deemed to have been waived by Landlord unless such waiver be in writing signed
by Landlord.
Q. 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 at the
expense of the party so requesting.
R. Governing Law: The laws of the State of Virginia shall
-------------
govern the validity, performance and enforcement of this lease.
-22- LANDLORD _________________
TENANT ____________________
S. Number and Gender: Any word contained in the text of this
-----------------
lease shall be read as the singular or the plural and as the masculine, feminine
or neuter gender as may be applicable in the particular context.
T. Additional Instruments: The parties shall execute and
----------------------
deliver any instruments in writing necessary to carry out any agreement, term,
condition, or assurance in this lease whenever occasion shall arise and request
for such instruments shall be made.
U. Severability: If any provision of this lease shall be
------------
declared invalid or unenforceable, the remainder of the lease shall continue in
full force and effect.
V. Captions: The captions in this lease are for convenience
--------
only, are not a part of this lease, and do not in any way limit or amplify the
terms and provisions of this lease.
W. Counterparts: This lease may be executed in one or more
------------
counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument.
X. Binding Effect: Except as herein otherwise expressly
--------------
provided, the term and provisions hereof shall be binding upon and shall inure
to the benefit of the heirs, executors, administrators, successors and permitted
assigns, respectively, of Landlord and Tenant. Each term and each provision of
this lease to be performed by Tenant shall be construed to be both an
independent covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment by
Tenant, but has reference only to those instances in which Landlord may have
given written consent to a particular assignment.
-23- LANDLORD _________________
TENANT ____________________
Y. Entire Agreements: This lease contains all of the premises,
-----------------
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.
[THE REST OF PAGE INTENTIONALLY LEFT BLANK]
-24- LANDLORD _________________
TENANT ____________________
IN WITNESS WHEREOF, Landlord and tenant have executed this Lease
Agreement on the day and year first above written.
LANDLORD TENANT
ADVANCE STORES COMPANY,
INCORPORATED
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx, President
STATE OF VIRGINIA
COUNTY OF ROANOKE, to wit:
The foregoing instrument was acknowledged before me this ______
day of ________________, 1996, by XXXXXXXX X. XXXXXXX.
/s/
-------------------------------------------
Notary Public
My Commission Expires: ____________________
STATE OF VIRGINIA
COUNTY OF ROANOKE, to wit:
The foregoing instrument was acknowledged before me this ______
day of ________________, 1996, by XXXXXXX X. XXXXX, President of Advance Stores
Company, Incorporated, a Virginia corporation, on behalf of said corporation.
/s/
-------------------------------------------
Notary Public
My Commission Expires: ____________________
Year 1 1,247,000
Year 2 1,278,000
Year 3 1,310,000
Year 4 1,343,000
Year 5 1,377,000
Year 6 1,411,000
Year 7 1,446,000
Year 8 1,482,000
Year 9 1,519,000
Year 10 1,557,000
----------------
13,970,000
10 year average 1,397,000
Will set rent at $1,300,000 per year. Less than $3.00 sq/ft.
FIRST AMENDMENT TO LEASE AGREEMENT
----------------------------------
This FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and
entered into as of April 15, 1998 (the "Amendment Date"), by and between
XXXXXXXX X. XXXXXXX, an individual (="andlord"), and ADVANCE STORES COMPANY,
INCORPORATED, a Virginia corporation ("Tenant").
R E C I T A L S
---------------
A. Tenant and Landlord entered into that certain Lease Agreement,
commencing as of January 1, 1997, and that certain Lease Modification Agreement
dated as of February 23, 1998 (as amended, the "Lease") whereby Landlord leased
to Tenant and Tenant leased from Landlord 28.1 acres of land and the
improvements thereon, located in Roanoke, Virginia and commonly known as 0000
Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx (the "Leased Premises").
B. The parties desire to amend the Lease as set forth in this
Amendment.
A G R E E M E N T
-----------------
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree to amend the Lease as follows:
1. TERMS. All capitalized terms used herein and not otherwise
-----
defined shall have the same respective meanings as are given such terms in the
Lease.
2. INSURANCE. The limits of the liability insurance required to be
---------
maintained by Tenant pursuant to Paragraph 4(A)(3) of the Lease shall be no less
than $1,000,000 for injury or property damage arising out of any one occurrence.
3. ASSIGNMENT OR SUBLETTING. Notwithstanding anything to the
------------------------
contrary contained in Paragraph 11 of the Lease, Tenant shall have the right to
assign the Lease or sublet the Leased Premises, without obtaining Landlord"s
prior written consent, to (i) any affiliate of Tenant (but without relieving
Tenant of its obligations thereunder), (ii) any entity with which the Tenant may
merge or consolidate, and/or (iii) any person or entity which acquires all or
substantially all of the assets of Tenant. The sale of fifty percent (50%) or
more of Tenant's voting stock (a "Stock Transfer") shall be deemed to be an
assignment of the Lease requiring Landlord's prior consent, which consent shall
not be unreasonably withheld. In the event
Landlord withholds its consent to a Stock Transfer, the proposed buyer of
Tenant's stock ("Proposed Buyer") shall have the right to purchase the Leased
Premises as follows:
A. Option to Purchase. Proposed Buyer may exercise its option to
------------------
purchase ("Option to Purchase") all of Landlord's interest in the Leased
Premises (but not any part thereof) only by giving a notice of Proposed Buyer's
election to purchase the Leased Premises ("Purchase Notice") within sixty (60)
days of receipt of notice of rejection by Landlord of Tenant's request for
consent to a Stock Transfer. Landlord's failure to respond within sixty (60)
days from the date of receipt of Tenant's request for consent to a Stock
Transfer shall be deemed an approval of Tenant's request for consent to such
Stock Transfer.
B. Option Price. The option price ("Option Price") will be an amount
------------
equal to the Fair Market Value (as defined below) of the Leased Premises. In
addition to the Option Price, Proposed Buyer and Landlord shall bear all closing
costs and expenses in connection with the transfer of the Leased Premises to
Proposed Buyer in accordance with the prevailing custom in the jurisdiction
where the Leased Premises are located. Landlord shall be required to convey good
and marketable fee interest title to the Leased Premises free and clear of all
liens and encumbrances other than monetary liens or liens and encumbrances which
do not materially detract from the current value or use of the Leased Premises
as of the date hereof.
C. Fair Market Value. The fair market value (the "Fair Market
-----------------
Value") of the Leased Premises shall be determined as follows:
(1) The parties shall attempt to determine the Fair Market Value
by mutual agreement within fifteen (15) days after Proposed Buyer's delivery of
the Purchase Notice.
(2) However, if the parties are unable to agree on the Fair
Market Value within the fifteen (15) day period set forth above, then within ten
(10) days after the expiration of that period each party, at its cost and by
giving notice to the other party, shall appoint a real estate appraiser with at
least five (5) years' full-time commercial appraisal experience in appraising
properties similar to the Leased Premises in the area in which the Leased
Premises are located to appraise and set the Fair Market Value. Further, all of
the appraisers selected through the process described above shall be certified
as required by Virginia law as in effect at the time. If a party does not
appoint an appraiser within ten (10) days after the other party has delivered
notice of the name of its appraiser (the "Appraiser Appointment Deadline"), the
party which appointed an appraiser prior to the Appraiser Appointment Deadline
shall deliver written notice to the other party of the expiration of the time
period for the appointment of an appraiser (the "Appointment Expiration
Notice"), which notice may be delivered via facsimile. In the event that the
party which failed to appoint an appraiser prior to the Appraiser Appointment
Deadline subsequently fails to deliver notice to the other party of the
appointment of an appraiser within two (2) business days after delivery of the
Appointment Expiration Notice, the single appraiser appointed shall be the sole
appraiser and shall set the Fair Market Value. If the two appraisers are
appointed by the parties as stated in this Paragraph, they
-2-
shall meet promptly and attempt to set the Fair Market Value. If they are unable
to agree within thirty (30) days after the second appraiser has been appointed,
they shall attempt to select a third appraiser meeting the qualifications stated
in this Paragraph within ten (10) days after the last day the two appraisers are
given to set the Fair Market Value. If they are unable to agree on the third
appraiser, either of the parties to the Lease by giving ten (10) days' notice to
the other party can file a petition with the American Arbitration Association
solely for the purpose of selecting a third appraiser who meets the
qualifications stated in this Paragraph. Each party shall bear half the cost of
the American Arbitration Association appointing the third appraiser and of
paying the third appraiser's fee. The third appraiser, however selected, shall
be a person who has not previously acted in any capacity for either party.
Within thirty (30) days after the selection of the third appraiser, a majority
of the appraisers shall set the Fair Market Value. After the Fair Market Value
has been set, the appraisers shall immediately notify the parties.
4. LEASEHOLD MORTGAGES AND ENCUMBRANCES. Notwithstanding anything to
------------------------------------
the contrary contained in Paragraph 11 of the Lease, Tenant shall have the
right, without obtaining Landlord's consent, to mortgage or encumber Tenant's
leasehold estate in connection with a general financing of Tenant or any
successor to substantially all of its assets.
5. DAMAGE BY CASUALTY. Paragraph 12(A) of the Lease is hereby
------------------
amended and restated as follows:
"A. Election to Terminate or Rebuild.
---------------------------------
If, during the term of this Lease, the Leased Premises are
totally or partially destroyed, Landlord shall restore the Leased Premises to
substantially the same condition as they were in immediately before such
destruction. Notwithstanding the foregoing, if such damage is to a material
portion of the Leased Premises ("Material Destruction"), either Landlord or
Tenant may elect to terminate the Lease by providing written notice to the other
party within thirty (30) days after such Material Destruction. For purposes of
this Paragraph, damage or destruction shall constitute "Material Destruction"
if: (i) the cost of restoration exceeds fifty percent (50%) of the then
replacement value of the Leased Premises destroyed; or (ii) the time to restore
such damage or destruction is reasonably expected to exceed nine (9) months."
Paragraph 12(B) of the Lease is hereby amended and restated as
follows:
"B. Termination. If either Landlord or Tenant elects to
-----------
terminate this Lease as provided by Paragraph 12(A), the rent and additional
rent to be paid by Tenant hereunder shall be apportioned as of the date of
damage or destruction."
The first sentence of Paragraph 12(C) of the Lease is hereby
amended and restated as follows:
-3-
"C. Rebuilding. If neither Landlord nor Tenant elects to
----------
terminate this Lease as provided in Paragraph 12(A), then this Lease shall
continue in full force and effect and Landlord shall, at his expense, but only
from insurance proceeds released by the holder of any mortgage lien upon the
Leased Premises, restore the same to substantially the condition the Leased
Premises were in immediately prior to such damage or destruction except as
otherwise provided in this Paragraph 12."
6. CONDEMNATION. The first sentence of Paragraph 13(B) of the
------------
Lease is hereby amended and restated as follows:
"B. Partial. Landlord and Tenant shall have the right to
-------
terminate the Lease upon the taking by eminent domain of a material portion (a
"Material Taking") of the Leased Premises, by providing written notice to the
other party within sixty (60) days after receipt of notice of such Material
Taking. For purposes of such right to terminate, the term "Material Taking"
shall mean a taking which involves more than twenty percent (20%) of the floor
area of the building at the Leased Premises, or more than thirty-five percent
(35%) of the land area of the Leased Premises which is not occupied by any
building."
The phrase "If Landlord elects to continue this lease" in the second
sentence of Paragraph 13(B) of the Lease is hereby amended and restated as
follows: "If neither Landlord nor Tenant elects to terminate this Lease as
provided in this Paragraph".
7. DEFAULTS. The ten (10) day cure period after notice of non-
--------
monetary defaults set forth in Paragraph 14(A)(ii) of the Lease is hereby
amended and restated to be thirty (30) days after written notice.
8. CHRONIC DEFAULTS. The following provision is hereby deleted from
----------------
the first sentence of Paragraph 14F: "(ii) Three Non-Monetary Defaults; or (iii)
One Monetary Default and two Non-Monetary Defaults."
9. SUBORDINATION. Paragraph 16(I) of the Lease is hereby amended and
-------------
restated as follows:
"I. Subordination: Notwithstanding anything to the contrary
-------------
contained in this Lease, this Lease shall be subordinate to any mortgage
recorded prior to the date of this Lease; provided, however, Lessor shall use
reasonable best efforts to deliver to Lessee a Non-Disturbance Agreement (as
defined below) from the holder of any such mortgage no later than sixty (60)
days after the date of this Amendment. Notwithstanding anything to the contrary
contained in this Lease, this Lease shall not be subordinate to any mortgage
recorded after the date of this Lease, unless Lessor shall have provided Lessee
with a non-disturbance agreement ("Non-Disturbance Agreement") in favor of
Lessee from the holder of any such mortgage. The Non-Disturbance Agreement shall
be in a form reasonably acceptable to Lessee. Upon provision of a Non-
Disturbance Agreement to Lessee, in a form reasonably acceptable to Lessee,
Lessee shall execute such Non-Disturbance Agreement.."
-4-
10. SENIOR LIENS. Landlord hereby subordinates any landlord's lien it
------------
might hold, statutory, constitutional, contractual or otherwise, to any
inventory, fixtures, equipment or other personal property owned or leased by
Tenant and now or hereafter located at the Leased Premises to the lien of any
lender providing general financing to Tenant. Landlord agrees to execute any
instrument, releases or other documents that may be necessary to evidence the
waiver and release of any such liens.
11. HAZARDOUS SUBSTANCES. Notwithstanding anything to the contrary
--------------------
contained in the Lease: (i) Landlord's consent shall not be required in order
for Tenant to maintain any hazardous substances which have been customarily
stored by Tenant at the Leased Premises prior to the date of this Amendment; and
(ii) Tenant shall not be required to indemnify Landlord in the event that
hazardous substances migrate on to the Leased Premises from any neighboring
property or are brought on to the Leased Premises by trespassers (even if Tenant
may be held legally liable therefor), provided however, that Tenant shall in no
way be relieved of its indemnity obligation due to its own negligence or fault.
12. EXTENSION OPTION. Tenant is given one (1) option to extend the
----------------
initial term of the Lease, subject to all the provisions contained in the Lease,
as amended and restated by this Amendment, except for monthly rent, for a period
of five (5) years ("Extended Term"). In order to exercise an option to extend,
Tenant shall give notice of exercise of the option ("Option Notice") to Landlord
at least three (3) months but not more than nine (9) months before the
expiration of the term. The monthly rent during the Extended Term shall be
equal to the fair market rental for the Leased Premises, which in no event shall
be less than the rent payable immediately prior to the Extended Term. The
parties shall have thirty (30) days after Landlord receives the Option Notice in
which to agree on monthly rent during the Extended Term. If the parties agree
on the monthly rent for the Extended Term during that period, they shall
immediately execute an amendment to the Lease stating the monthly rent.
If the parties are unable to agree on the monthly rent for the
Extended Term within the thirty (30) day period set forth above, then within ten
(10) days after the expiration of that period each party, at its cost and by
giving notice to the other party, shall appoint a real estate appraiser with at
least five (5) years' full-time commercial appraisal experience in appraising
properties similar to the Leased Premises in the area in which the Leased
Premises are located to appraise and set the monthly rent for the Extended Term.
Further, all of the appraisers selected through the process described above
shall be certified as required by Virginia law as in effect at the time. If a
party does not appoint an appraiser within ten (10) days after the other party
has given notice of the name of its appraiser, the single appraiser appointed
shall be the sole appraiser and shall set the monthly rent for the Extended
Term. If the two appraisers are appointed by the parties as stated in this
Paragraph, they shall meet promptly and attempt to set the monthly rent for the
Extended Term. If they are unable to agree within thirty (30) days after the
second appraiser has been appointed, they shall attempt to select a third
appraiser meeting the qualifications stated in this Paragraph within ten (10)
days after the last day the two appraisers are given to set the monthly rent.
If they are unable to agree
-5-
on the third appraiser, either of the parties to the Lease by giving ten (10)
days' notice to the other party can file a petition with the American
Arbitration Association solely for the purpose of selecting a third appraiser
who meets the qualifications stated in this Paragraph. Each party shall bear
half the cost of the American Arbitration Association appointing the third
appraiser and of paying the third appraiser's fee. The third appraiser, however
selected, shall be a person who has not previously acted in any capacity for
either party. Within thirty (30) days after the selection of the third
appraiser, a majority of the appraisers shall set the monthly rent for the
Extended Term. After the monthly rent for the Extended Term has been set, the
appraisers shall immediately notify the parties.
13. LEASEHOLD MORTGAGES. Notwithstanding anything to the contrary
-------------------
contained in this Lease, Tenant may execute, deliver and perform one or more
mortgages, deeds of trust or other leasehold security agreements ("Leasehold
Indentures") without the consent of Landlord in connection with an overall
financing of Advance Stores Company, Incorporated or a successor to
substantially all of its assets ("ASCI"). If either Tenant or the mortgagee,
grantee or trustee under any such Leasehold Indenture sends Landlord a notice
advising of the existence of such Leasehold Indenture and the address of the
mortgagee, grantee or trustee thereunder for the service of such notices, such
mortgagee, grantee or trustee shall be deemed to be a "Leasehold Lender."
Landlord shall be under no obligation under this paragraph to any mortgagee,
grantee or trustee under a Leasehold Indenture who is not a Leasehold Lender.
Anything to the contrary herein notwithstanding, there shall only be one
Leasehold Lender with respect to the Leased Premises at any time.
A. Upon the occurrence of any default hereunder by Tenant,
written notice to that effect shall be sent by Landlord to each Leasehold Lender
at the same time notice of such default is sent to Tenant. Landlord shall not
terminate this Lease or exercise any other right or remedy hereunder unless it
first gives notice of such default to each Leasehold Lender, and:
(1) If such default is a failure to pay a monetary
obligation of Tenant, the Leasehold Lender shall fail to cure such default
within thirty (30) days of receipt of notice thereof from Landlord; or
(2) If such default is not a failure to pay a monetary
obligation of Tenant, the Leasehold Lender shall fail within forty-five (45)
days of receipt of said written notice to remedy such default; or
(3) If any such default cannot be cured by the Leasehold
Lender by payment of money and without the Leasehold Lender obtaining possession
of the Leased Premises by appropriate proceedings and/or title to Tenant's
leasehold estate by judicial or non-judicial foreclosure proceedings or by deed
in lieu thereof, then any such default shall be remedied or deemed remedied if
the Leasehold Lender shall have complied with the following provisions:
-6-
(i) Within thirty (30) days after receiving notice
from Landlord setting forth the nature of such default, or prior thereto, the
Leasehold Lender shall have acquired Tenant's leasehold estate or within fifteen
(15) days shall have commenced judicial or non-judicial foreclosure proceedings
or appropriate proceedings to obtain possession of the Leased Premises;
(ii) The Leasehold Lender shall diligently prosecute
any such proceedings to completion;
(iii) The Leasehold Lender shall have fully cured and
continue to cure any default arising from failure to pay or perform any monetary
obligations in accordance with the terms of this Lease; and
(iv) After gaining possession of the Leased Premises,
the Leasehold Lender shall perform all other obligations of Tenant as and when
the same are due in accordance with the terms of this Lease.
B. If any Leasehold Lender or a person designated by a Leasehold
Lender shall either become the owner of the interest of Tenant hereunder upon
the exercise of any remedy provided for in the Leasehold Indenture or shall
enter into a new Lease with Landlord as provided in paragraph (d), then,
notwithstanding anything to the contrary contained in this Lease, such Leasehold
Lender or such person shall have the right to assign such interest or such new
Lease to any person without obtaining the consent or approval of Landlord,
provided, however, that following such assignment, the Landlord's consent shall
be required with respect to any subsequent tenants to the extent required under
this Lease.
C. If this Lease is terminated, rejected or disaffirmed for any
reason pursuant to bankruptcy law or other law affecting creditors' rights, any
Leasehold Lender, or a person designated by any Leasehold Lender, shall have the
right, exercisable by notice to Landlord within thirty (30) days after the
effective date of termination, rejection or disaffirmance, to enter into a new
Lease of the Leased Premises with Landlord to the extent enforceable under law.
The term of the new Lease shall begin on the date of the termination of this
Lease and shall continue for the remainder of the term of this Lease (including
any options to renew if the right thereto is exercised by such Leasehold Lender
or its assignee).
Such new Lease shall otherwise contain the same terms and
conditions as those set forth herein, except for requirements which are no
longer applicable or have already been performed, provided that all defaults
which are susceptible of being remedied by the payment of money shall have been
cured, and provided further that such new lease shall require the Tenant
thereunder promptly to commence and expeditiously continue to remedy all other
defaults on the part of Tenant thereunder to the extent reasonably possible. It
is the intention of the parties hereto that such new Lease shall have the same
priority relative to other rights or interests to or in the fee estate in the
land covered by this Lease. The provisions of this paragraph shall survive the
termination of this Lease and shall continue in full force and effect
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thereafter to the same extent as if this paragraph (d) were a separate and
independent contract by and among Landlord, Tenant and each Leasehold Lender.
From the date on which any Leasehold Lender shall serve upon Landlord the
aforesaid notice of the exercise of its rights to enter into a new Lease, such
Leasehold Lender may use and enjoy the Leased Premises without hindrance or
interference by Landlord.
D. Subject to the cure rights set forth herein, no Leasehold Lender
shall become liable for the performance or observance of any covenants or
conditions to be performed or observed by Tenant unless and until such Leasehold
Lender becomes the owner of Tenant's interest hereunder upon the exercise of any
remedy provided for in any Leasehold Indenture or occupies the Leased Premises
or enters into a new Lease with Landlord as herein provided. Thereafter, such
Leasehold Lender shall be liable for the performance and observance of such
covenants and conditions only until such Leasehold Lender assigns such interest
or assigns the new Lease as permitted hereby whereupon all obligations of such
Leasehold Lender under this Lease or such new Lease arising subsequent to such
assignment shall terminate.
E. Landlord agrees that the exercise of its rights under this Lease
in case of a default by Tenant shall not, without the prior written consent of
each Leasehold Lender, result in the merger of the estate of the subtenant under
any sublease with the estate of the sublandlord thereunder.
F. Without the prior written consent of each Leasehold Lender,
Landlord will not accept a voluntary surrender of this Lease or the estate
created hereby and will not consent to any amendment of this Lease that
adversely affects the rights of the Leasehold Lender hereunder.
G. In the event of any default by Tenant under the Lease or the
Leasehold Indenture, Landlord will allow the Leasehold Lender to enforce its
lien and security interest on Tenant's assets located at the Leased Premises and
Landlord will allow the Leasehold Lender to assemble and remove all of Tenant's
assets located on the Leased Premises (provided that (i) the Leasehold Lender
shall only be permitted to remove assets which Tenant would be entitled to
remove pursuant to the terms of Paragraph 5 of the Lease, and (ii) the Leasehold
Lender promptly repairs all material damage resulting from such removal) without
the Leasehold Lender assuming any of Tenant's obligations under the Lease.
14. NO OTHER MODIFICATIONS. Except as otherwise provided herein, all
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other terms and provisions of the Lease shall remain in full force and effect.
15. BINDING EFFECT. The provisions of this Amendment shall be binding
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upon and inure to the benefit of the heirs, representatives, successors and
permitted assigns of the parties hereto.
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16. COUNTERPARTS. This Amendment may be executed in any number
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of original counterparts. Any such counterpart, when executed, shall constitute
an original of this Amendment, and all such counterparts together shall
constitute one and the same Amendment.
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first set forth above.
"LANDLORD" "TENANT"
ADVANCE STORES INCORPORATED,
A Virginia Corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
an individual By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Its: President
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Its: Chairman
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