EXHIBIT 10.48
Confidential Treatment Request
[*] indicates information that has been omitted pursuant to a confidential
treatment request and this information has been filed under separate cover with
the commission.
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT, made and entered into as of this 16 day of
February, 2005 by and between MIDNIGHT AUTO FRANCHISE CORP., a Michigan
corporation (hereinafter called "MAFC") and ALL NIGHT AUTO OF NAPERVILLE, INC.
(hereinafter called "▇▇▇").
WITNESSETH:
WHEREAS, on the date hereof, ▇▇▇▇▇ ▇▇▇▇▇▇ Developers, LLC, an Illinois
limited liability company (the "Landlord") consented to an assignment of lease
to MAFC of a Strip Center Retail Lease by and between the Landlord and Expert
Automotive Group, LLC dated February 9, 2004 (the "Master Lease") with respect
to the premises located at ▇▇▇▇▇ ▇▇▇▇▇▇ and LaGrange road, Tinley Park, IL
consisting of 6,860 sq.ft. of leasable space (the "Premises"); and
WHEREAS, Expert Automotive Group, LLC has assigned its tenants' interest
in the Master Lease to MAFC; and
WHEREAS, ▇▇▇ wishes to sublease a portion of the Premises (5,060 square
feet) known as the All Night Auto facility (the "Subleased Premises"); and
WHEREAS, the Subleased Premises are designated by the cross hatched area
on the attached diagram of the Premises; and
WHEREAS, MAFC is desirous of entering into this Sublease and does hereby
sublease unto ▇▇▇ and ▇▇▇ hereby subleases from MAFC, upon the terms and
conditions hereinafter set forth.
TERMS AND CONDITIONS
1. TERM. The term of Sublease Agreement ("Term") shall commence on the
date hereof and shall continue in force until the date of termination or
expiration of the Master Lease, except as otherwise set forth in Section 7(a)
below. Effective as of the date of such termination, provided ▇▇▇ has fully
performed all of its obligations under this Sublease, ▇▇▇ shall have no further
liability or obligation with respect to this Sublease Agreement or the Master
Lease.
2. RENT. ▇▇▇ shall pay Rent to MAFC during the Term as follows: $[*] per
month from the date hereof to March 31, 2005, and from April 1, 2005 to March
31, 2006 (April 1, 2005 through March 31, 2006 is referred to herein as "Year
One", and the fiscal year beginning April 1st of each year and ending on March
31st of each year is referred to herein as the "Fiscal Year"). Rent shall
increase for each Fiscal Year after Year One at two (2%) percent per year. Such
Rent is a triple net rent rate. ▇▇▇ shall also pay to MAFC taxes and additional
rent as set forth in the Master Lease for the Subleased Premises (i.e., ▇▇▇
shall pay 5060/6860 of the total taxes and additional rent assessed under the
Master Lease).
* Portions of the exhibit have been omitted and filed separately pursuant to
an application for confidential treatment filed with the Securities and
Exchange Commission pursuant to rule 24b-2 under the Securities Exchange
Act of 1934, as amended.
3. UTILITY CHARGES. Tenant shall be solely responsible for and pay when
due all charges for heat, light, water, sewer, gas, telephone, electricity or
any other utility services used or consumed in the Premises, including payment
for meters, submeters, meter installation, deposits, service connections and
service charges. In the event separate bills are not obtainable for any such
expense. Tenant shall pay Landlord, as additional rent, Tenant's proportionate
share of such charges and expenses, subject to adjustment based on any
extraordinary use or consumption of any utility by Tenant on the Premises within
ten (10) days after billing therefor.
4. COMPLIANCE WITH MASTER LEASE. ▇▇▇ hereby agrees to accept and be bound
by all terms and conditions imposed upon MAFC as lessee pursuant to the Master
Lease (to the extent applicable) during the Term under and pursuant to the
Master Lease, a true, correct and complete copy of such terms and conditions
Master Lease is attached hereto as Exhibit A and made a part hereof as though
fully set forth herein. MAFC hereby agrees, to the extent possible, to perform
the obligations of the Landlord under the Master Lease as though MAFC has been
named therein as landlord, or, in the alternative, MAFC may permit ▇▇▇ to
exercise a direct action against Landlord under the Master Lease (MAFC hereby
passing through to ▇▇▇, Landlord's obligations under the Master Lease with
respect to the Subleased Premises). As between the parties hereto only, in the
event of a conflict between the terms of the Master Lease and the terms of this
Sublease Agreement, the terms of this Sublease Agreement will control.
5. DELIVERY OF POSSESSION. The Premises shall be delivered in their "as
is", "where is" condition, vacant and broom clean (with the exception of the
Furnishings described in Section 30, below), as of the Commencement Date, and on
such date ▇▇▇ shall accept the Premises in their existing condition and state of
repair. ▇▇▇ acknowledges that no representations, statements or warranties,
express or implied, have been made by or on behalf of MAFC in respect to the
Premises' condition, compliance with laws, ordinances, statutes or regulations,
including, but not limited to, the Americans with Disabilities Act of 1991, 42
USC Section 1201 et seq. and all regulations applicable thereto promulgated as
of the date hereof (collectively, "ADA"), or the use or occupation that may be
made thereof, and that MAFC shall not be liable for any defects in the Premises.
Acceptance of the Premises by ▇▇▇ shall be construed as recognition that the
Premises are in an acceptable state of repair and in sanitary condition.
6. EXTENSION OF TERM. Unless MAFC exercises its purchase option or right
of first refusal in the Master Lease, MAFC shall timely and properly exercise
all existing options to extend the term of the Master Lease.
7. SURVIVAL OF OBLIGATIONS. ▇▇▇ shall not be responsible for and assumes
no liability for, and MAFC hereby agrees to indemnify, defend and save ▇▇▇
harmless from and against, any loss, claim, damage, cause of action, penalty,
expense or fee arising out of or relating to any act or omission of MAFC, unless
such act or omission relates to an act or omission which Landlord under the
Master Lease is obligated to perform (or refrain from taking). Subject to the
foregoing, ▇▇▇ will indemnify, defend and save MAFC harmless from and against
any claims, demands, and actions arising in connection with ANA's use of the
Premises, or the use by any person occupying said premises during the Term or by
reason of any
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breach or nonperformance of any covenant herein, or the violation of any law or
regulation by ▇▇▇.
8. PURCHASE OR PREMISES.
(a) In the event MAFC purchases the Premise at anytime during the Term,
MAFC agrees that the Sublease shall remain in full force and effect and shall
continue for a term equal to the term set forth in the Master Lease including
all option periods thereunder, subject to ANA's rights pursuant to Section 7(b)
below.
(b) In the event MAFC purchases the Premises at anytime during the Term,
MAFC hereby grants to ▇▇▇ an option to purchase the Subleased Premises for a sum
to be determined. ▇▇▇ shall provide written notice to MAFC of its intent to
exercise its option to purchase with a closing to occur within 60 days after the
date of notice. MAFC will take commercially reasonable efforts at ANA's expense
to subdivide the Premises or take other action as is appropriate to permit the
sale of the Subleased Premises to ▇▇▇.
9. DEFAULT. In the event ▇▇▇ fails to perform or observe any of the
covenants contained herein or as contained in the Master Lease as applicable to
the Subleased Premises, and does not correct such failure within any notice
and/or cure period as set forth in the Master Lease (less three (3) days), then
MAFC may forthwith terminate or cancel this Sublease Agreement. In the event
MAFC fails to timely perform or observe any of its obligations hereunder,
including obligations to be performed by MAFC pursuant to the Master Lease, if
such failure is not cured within thirty (30) days after ▇▇▇ delivers written
notice to MAFC, then ▇▇▇ may forthwith (i) terminate this Sublease Agreement and
all of ANA's obligations hereunder and with respect hereto shall cease, or (ii)
seek any available legal or equitable remedies.
10. QUIET ENJOYMENT. MAFC represents that it has full power and authority
to enter into this Sublease, subject to the consent of the Landlord. So long as
▇▇▇ is not in default in the performance of its covenants and agreements in this
Sublease, ANA's quiet and peaceable enjoyment of the Subleased Premises shall
not be disturbed or interfered with by MAFC, or by any person claiming by,
through, or under MAFC.
11. NON ASSIGNMENT. ▇▇▇ shall not, directly or indirectly, assign, convey,
pledge, hypothecate or otherwise transfer its interest in this Sublease, or
sublet, license or otherwise grant to any person the right to occupy all or any
portion of the Premises (collectively, "Transfer") without (i) the prior written
consent of MAFC, and (ii) the prior written consent of Landlord to the extent
required by and in accordance with the terms and provisions of the Lease. Any
sale, assignment or other direct or indirect transfer of control of ▇▇▇ or a
majority of the beneficial ownership interests in ▇▇▇ in a single transaction or
one or more related transactions shall constitute a "Transfer" hereunder for
which MAFC's prior written consent shall be required. ▇▇▇ shall pay, within ten
(10) days of written demand, any fees or costs payable to Landlord under the
Lease, and all attorneys' fees and costs incurred by MAFC, in connection with
the ANA's request for consent to a Transfer.
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12. INSURANCE. ▇▇▇ shall comply with all of the insurance requirements and
obligations of MAFC, as tenant under the Lease, and shall name Landlord and MAFC
as additional insureds, as their interests may appear, on all policies of
insurance required to be carried by ▇▇▇ hereunder or thereunder. The parties
mutually agree that, with respect to any property loss which is covered by
insurance then being carried by MAFC or ▇▇▇, respectively, the party carrying
such insurance and suffering such loss releases the other of and from any and
all claims with respect to such loss; and the parties further mutually agree
that their respective insurance companies shall have no right of subrogation
against the other on account thereof, even though extra premium may result
therefrom. If and to the extent such waiver can be obtained only upon payment of
an additional charge, the party benefiting from the waiver shall pay such
charge, upon demand, or shall be deemed to have agreed that the party obtaining
the insurance coverage in question shall be free of any further obligations
under the provisions hereof relating to such waiver.
13. LIMITATIONS ON MAFC.
13.1 ▇▇▇ acknowledges that MAFC has made no representations or
warranties with respect to the Building or the Premises except as expressly
provided in this Sublease.
13.2 MAFC shall not be required to perform any of the covenants and
obligations of Landlord under the Lease and, insofar as any of the obligations
of MAFC hereunder are required to be performed under the Lease by Landlord, ▇▇▇
shall rely on and look solely to Landlord for the performance thereof.
13.3 Any repair and maintenance obligations with respect to the
Premises which are the responsibility of MAFC, as tenant under the Lease, shall
be performed by ▇▇▇, at ANA's sole cost and expense. ▇▇▇ shall promptly notify
MAFC of the need of any such repair, even though MAFC shall not be responsible
or liable therefor.
13.4 In no event shall MAFC be liable to ▇▇▇ for consequential,
punitive or other special damages with respect to this Sublease or any matter
arising out of or in connection with this Sublease, the Lease or the Premises.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease Agreement
to be executed as of the day and year first set forth above.
MAFC:
MIDNIGHT AUTO FRANCHISE CORP.
a Michigan corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
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▇▇▇:
ALL NIGHT AUTO OF NAPERVILLE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
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GUARANTY
MacArthur Holdings Corporation, hereby unconditionally guarantees the
timely payment and performance by ▇▇▇ of all of its obligations under this
Sublease. Guarantor waives presentment, notice of dishonor, notice of
non-payment and diligence on behalf of MAFC. This is a guaranty of payment, and
not a guaranty of collection. Guarantor hereby acknowledges that MAFC may agree
with ▇▇▇ to forbear from enforcing MAFC rights, amend the Sublease, and/or
settle its claims against ▇▇▇ under the Sublease, all without limiting or
allowing Guarantors' obligations under this Guaranty.
MACARTHUR HOLDINGS CORPORATION, a
Michigan corporation
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, PRESIDENT
AND
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, VICE PRESIDENT
Dated: 2-16-05
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EXHIBIT A: TERMS AND CONDITIONS OF THE MASTER LEASE
ARTICLE 4
CONSTRUCTION OF IMPROVEMENTS
4.1. CONDITION OF PREMISES. Tenant's taking possession of the Premises
shall be conclusive evidence as against Tenant that the Premises were in
satisfactory condition when Tenant took possession. Tenant acknowledges that
Landlord has no obligation to improve or repair the Premises or the Shopping
Center.
4.2. TENANT IMPROVEMENTS. Tenant is taking the Premises in "AS-IS"
condition. All improvements to the Premises necessary for Tenant's use or
occupancy thereof shall be completed by Tenant, at Tenant's expense, and shall
hereinafter be referred to as "Tenant Improvements". The Tenant Improvements
shall be completed by Tenant in conformity with specifications acceptable to
Landlord and such acceptance shall not be unreasonably withheld. Tenant agrees
to submit to Landlord plans and specifications covering the Tenant Improvements
In such detail as Landlord may require, and Tenant agrees not to commence work
on any of the Tenant Improvements until Landlord has approved Such plans and
specifications in writing. Such acceptance shall not be unreasonably withheld.
ARTICLE 5
USE OF PREMISES
5.1. USE. The Premises shall be occupied and used only for the Permitted
Use and for no other purpose whatsoever unless Landlord, In its sole discretion,
consents to a change In such use. Tenant shall not use or occupy the Premises or
permit the use or occupancy of the Premises for any purpose or In any manner
which (i) is unlawful or in violation of any applicable legal or governmental
requirement, ordinance or rule; (ii) may be dangerous to persons or property;
(iii) may invalidate or increase the amount of premiums for any policy of
insurance (and if any additional amounts of insurance premiums are so incurred,
Tenant shall pay to Landlord the additional amounts on demand); or (iv) may
create a nuisance or injure the reputation of the Shopping Center.
5.2 OPERATION. Tenant acknowledges that its continued operation of the
Premises is of the utmost importance to the other tenants of the Shopping Center
and to Landlord in the rental of space in the Shopping Center, the renewal of
other leases In the Shopping Center, the efficient and economic supply of
services and utilities and the character and quality of the other tenants in the
Shopping Center. Accordingly, Tenant, throughout the Term, shall continuously
occupy, use and operate the entire Premises and shall be open for business on
each day and during such hours as are reasonably determined by Landlord from
time to time (other than customarily recognized national holidays). Tenant
agrees to conduct Tenant's business at all times in a first-class, high-grade
manner consistent with reputable business standards and practices and in such
manner that the high reputation of the Shopping Center is furthered.
Notwithstanding anything contained herein to the contrary, Tenant shall be
permitted to close the Premises for ten (10) days during each Lease Year and
Tenant's hours of operation from 6 a.m. to 4 p.m. daily are acceptable to
Landlord.
5.3. EXCLUSIVITY. During the Term of this Lease, and so long as Tenant
continues to use the Premises for the Permitted Use in accordance with the terms
of this Lease, and other than any permitted uses by any tenants, or pursuant to
any leases in effect or subleases thereof, in the Shopping Center as of the date
hereof, Landlord shall not lease space in the Shopping Center to any tenant
whose primary business istire sales and under hood and under car repairs and
other uses relating thereto.
ARTICLE 6
QUIET ENJOYMENT AND LANDLORD'S RIGHT OF ENTRY
6.1. QUIET ENJOYMENT. If and so long as Tenant shall pay the Rent
specified herein and observe and perform all covenants, agreements and
obligations required by it to be observed and performed hereunder, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord, subject, nevertheless, to the terms and conditions
of this Lease and the mortgages and other matters to which this Lease is or may
become subordinate.
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6.2. RESERVED RIGHTS OF LANDLORD. Landlord expressly reserves the right as
to the Shopping Center at any time to do, or permit to be done, any or all of
the following: add or remove buildings or structures; change the number and
location of buildings' and structures; change building dimensions; change the
number of floors in any of the buildings or structures; enclose any mall; add
to, alter or remove, partially or wholly, any structure or structures used to
enclose any plaza area; change the identity and type of stores and tenancies and
the dimensions thereof; change the name of the Shopping Center in which the
Premises are located; change the address or designation of the Premises; provide
or reduce parking areas; convert common areas into leasable areas; expand,
reduce, modify or alter the Common Areas; change the means of access to and
egress from the Shopping Center; and expand or reduce the size of the Shopping
Center.
6.3. RIGHT OF ENTRY. Tenant agrees that Landlord, its agents, employees or
servants, or any person authorized by Landlord, may enter the Premises for the
purpose of inspecting the condition of the same and to make such repairs,
additions, improvements, changes or alterations to the Premises or the building
of which they are a part no Landlord may elect to make, and to exhibit
the same to prospective purchasers, mortgagees and tenants of the Shopping
Center at reasonable hours with prior notice to the Tenant unless it is an
emergency. Such entry, inspection and repairs, additions, improvements, changes
or alterations as Landlord may make of or to the Premises or the building of
which the Premises are a part shall not constitute eviction of Tenant in whole
or in part and the Rent reserved shall not ▇▇▇▇▇ while such work is being done
by reason of loss or interruption of business of Tenant or otherwise. If tenant
or Tenant's agents or employees shall not be present to permit entry into the
Premises at any time when for any reason entry therein shall be necessary in the
reasonable judgment of Landlord to prevent injury or damage, Landlord or
Landlord's agents or employees may enter same by master key or by forcible entry
without liability therefor and without in any manner affecting the obligations,
covenants, terms or conditions of this Lease.
ARTICLE 7
NUISANCE AND WASTE; RULES AND REGULATIONS
7.1. NUISANCE AND WASTE. Tenant shall not perform any acts or carry on any
practices which may injure the building of which the Premises are a part,
violate any certificate of occupancy affecting same, constitute a public or
private nuisance or a menace to other tenants in the Shopping Center, produce
undue noise, create obnoxious fumes or odors or otherwise cause unreasonable
interference with other tenants of the Shopping Center. In addition, Tenant
shall not (a) permit any unlawful or immoral practice to be carried on or
committed in the Premises; (b) make any use of or allow the Premises to be used
for any purpose that might invalidate or increase the rate of insurance thereof;
(c) keep or use, or permit to be kept or used, in the Premises any inflammable
fluids or explosives, other than those consistent with the Permitted Use In
accordance with all laws; (d) deface or injure the Premises or the Shopping
Center; (e) overload the floors, walls or ceilings of the Premises; (f) sell or
consume, or allow the sale or consumption of, alcoholic beverages in the
Premises, unless the same is expressly included in the Permitted Use; or (g)
commit or suffer any waste in or about the Premises.
7.2. RULES AND REGULATIONS. Tenant covenants and agrees with landlord
that:
(a) All loading and unloading of goods shall be done only at such
times, in the areas and through the entrances designated for such purposes
by Landlord.
(b) All garbage and refuse shall be kept in the kind of container
specified by Landlord and shall be placed outside of the Premises,
prepared for collection in the manner and at the times and places
specified by Landlord. If Landlord shall provide or designate a service
for picking up refuse and garbage, Tenant shall use same at Tenant's cost.
Tenant shall pay the cost of removal of all of Tenant's refuse or rubbish.
(c) No phonograph or television or other similar device shall be
installed without first obtaining in each instance Landlord's written
consent. No aerial antenna shall be erected on the
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roof or exterior walls of the Premises, or on the Shopping Center, without
in each instance the written consent of Landlord.
(d) Tenant shall not place or permit any obstructions or merchandise
in such areas or store any merchandise or other matter in such areas or
other unauthorized areas of the Shopping Center.
(e) No auction, fire, bankruptcy, selling-out or
going-out-of-business sales shall be conducted in or about the Premises
without the prior written consent of the Landlord.
(f) Tenant shall keep the signs, exterior lights and display window
lights of the Premises lighted each and every day of the Term during
reasonable business hours designated by Landlord.
Landlord reserves the right to adopt additional reasonable rules and regulations
with respect to the conduct of Tenant's activities in the Premises and the
Shopping Center which, upon adoption, shall be deemed incorporated herein,
provided that Tenant is given notice thereof.
ARTICLE 8
COMPLIANCE WITH LAW; LIENS; INDEMNITY
8.1. COMPLIANCE WITH LAW AND CONTRACTS. Tenant shall, at its expense,
comply with and cause the Premises to comply with all governmental statutes,
laws, rules, orders, regulations and ordinances affecting the Premises or any
part thereof, or the use thereof, at any time during the Term. Tenant shall, at
its expense, comply with the requirements of all policies of Insurance which at
any time may be in force with respect to the Premises, and with the provisions
of all contracts, agreements and restrictions of which Tenant has notice
affecting the Premises or any part thereof or the occupancy or use thereof.
8.2. TITLE AND COVENANT AGAINST LIENS. Tenant covenants and agrees not to
suffer or permit any lien of mechanics or materialmen to be placed upon or
against the Shopping Center or the Premises or against the Tenant's leasehold
interest in the Premises arising from labor, material, service or equipment
ordered or authorized by Tenant or its agents and employees, and, in case of any
such lien attaching, to immediately pay and remove same. Tenant has no authority
or power to cause or permit any lien or encumbrance of any kind whatsoever,
whether created by act of Tenant, operation of law or otherwise, to attach to or
be placed upon the Shopping Center or the Premises, and any and all liens and
encumbrances created by Tenant shall attach only to Tenant's interest in the
Premises.
8.3. INDEMNIFICATION. Tenant agrees to pay and to protect, indemnify and
save harmless Landlord and all beneficiaries, agents and employees of Landlord
from and against any and all liabilities, losses, damages, costs, expenses
(including all attorneys' fees and expenses of Landlord), causes of action,
suits, claims, demands or judgments of any nature whatsoever (except those
arising solely from acts of Landlord, its agents or employees) arising from (a)
any injury to, or the death of, any person or any damage to property in the
Premises or upon adjoining sidewalks, streets or ways, or in any manner growing
out of or connected with the use, non-use, condition or occupation of the
Premises or any part thereof or resulting from the condition thereof or of
adjoining sidewalks, streets or ways; (b) violation of any agreement or
condition of this Lease; and (c) the negligence or intentional misconduct of
Tenant, its employees, invitees, license contractors, representatives or agents.
Landlord indemnifies Tenant for Landlord's breach of this Lease.
ARTICLE 9
MAINTENANCE AND REPAIR OF PREMISES
9.1. MAINTENANCE BY TENANT. Tenant shall at all times maintain the entire
Premises, including maintenance of exterior entrances and all glass and show
window moldings, and all floors, ceilings, interior walls, partitions, doors,
fixtures, equipment and appurtenances thereof (including lighting,
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plumbing fixtures and heating, air conditioning, ventilating, electrical and
fire protection systems installed by Tenant or exclusively serving the Premises
and including space around ducts, pipes, vents or other parts of the heating,
air conditioning, ventilating and plumbing systems which protrude through the
roof of the Premises) in good order, appearance, condition and repair, including
all necessary replacements of any of such facilities. Tenant agrees to enter
into a maintenance agreement, reasonably acceptable to Landlord, which provides
for the maintenance and repair of the heating, ventilation and air conditioning
systems servicing the Premises by a technician certified in the repair of such
systems at least two (2) times per Lease Year. Tenant shall provide a copy of
such maintenance, agreement to Landlord upon request.
9.2. MAINTENANCE BY LANDLORD.
(a) Landlord covenants to maintain or cause to be maintained only
the foundations and roof of the Premises, and the structural soundness of
the concrete floors and exterior walls thereof and the Common Areas in
good order, repair and condition, exclusive of any work required because
of damage caused by any act, omission or negligence of Tenant, any
subtenant or their respective employees, agents, invitees, licensees or
contractors. Landlord shall not be required to commence any such repair
until fifteen (15) days after written notice from Tenant that the same is
necessary.
(b) If Landlord is required to make repairs to the Premises by
reason of Tenant's acts, omissions or negligence of or Tenant refuses or
neglects to repair as required hereunder to the reasonable satisfaction of
Landlord, Landlord may make such repairs without liability to Tenant for
any loss or damage that may occur to Tenant's merchandise, fixtures or
other property or to Tenant's business by reason thereof. Upon completion
thereof, Tenant shall reimburse Landlord's costs for making such repairs
upon presentation of a ▇▇▇▇ therefor, as additional rent.
ARTICLE 10
COMMON AREAS AND CHARGES
10.1. CONTROL OF COMMON AREAS. "Common Areas" shall mean and include all
areas and improvements on Lot 2 which may be furnished by Landlord from time to
time for the nonexclusive common use of all tenants on Lot 2 and their
respective agents, employees, licensees and invitees, including, without
limitation, driveways, parking areas, landscaped areas, entrances and exits,
sidewalks, curbs, gutters, loading clocks and common signage; exterior walks,
roofs and foundations of buildings; common utility systems, conduits and
equipment; and common security and fire systems. The Common Areas shall at all
times be subject to the exclusive control and management of Landlord or its
designees, and Landlord shall have the right from time to time to establish,
modify and enforce reasonable rules and regulations with respect thereto.
10.2. MAINTENANCE CHARGES. Tenant agrees to pay to Landlord as additional
rent, monthly or less frequently as directed by Landlord. Tenant's Proportionate
Share of the Common Area Maintenance Cost (as defined below). Such payments
shall be based on Landlord's reasonable estimates, subject to adjustment from
time to time on determination of the actual amount of the Common Area
Maintenance Cost. "Common Area Maintenance Cost" shall be the total cost and
expense (including appropriate reserves) in operating, managing, equipping,
protecting, policing, lighting, repairing, replacing and maintaining the Common
Areas, including all costs and expenses of (a) security, fire protection and
traffic direction and control; (b) cleaning and removal of rubbish, dirt,
debris, snow and ice; (c) landscaping; (d) water, drainage end sewerage; (e)
insurance maintained by Landlord with respect to ▇▇▇ ▇, (▇) wages and benefits
of employees and other employee expenses; (g) permits and licenses; (h)
supplies; (i) utility services and lighting; (j) acquiring, leasing, operating,
maintaining, repairing and replacing machinery and equipment used in the
operation of the Common Areas; (k) management fees; and (l) any other cost,
expense or charge which, in accordance with generally accepted accounting and
management principles, would be considered as an expense of owning, managing,
operating, maintaining or repairing the Common Areas.
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10.3. AUDIT RIGHTS. Tenant shall have the right to audit Landlord's
records and accounts as the same relates to Tenant's Proportionate Share of
Common Area Maintenance Cost and Tenant's Proportionate Share of Taxes. Tenant
shall exercise its audit rights as follows; within thirty (30) days of Tenant's
receipt of notice for Landlord of knowledge of a pending increase in Tenant's
Proportionate Share or a ▇▇▇▇ from Landlord with respect to the same, Tenant
shall notify the Landlord of its intent to examine, within thirty (30) days of
Landlord's receipt of such notice, the records and accounts of Landlord relevant
to the amount and year set forth on the statement in question. As soon as is
practical thereafter, Landlord shall make such records and accounts available to
Tenant at Landlord's principal place of business during normal business hours.
If such audit discloses an error by Landlord resulting in Tenant having overpaid
Tenant's Proportionate Share, Landlord shall immediately refund such overpayment
to Tenant. If such audit discloses an error by Landlord resulting in Tenant
having underpaid Tenant's Proportionate Share, Tenant shall immediately pay such
deficiency to Landlord. If any error by the Landlord is greater than five
percent (5%) of the amount actually due and payable by Tenant, as shown by such
audit, Landlord shall reimburse Tenant for the cost of such audit.
ARTICLE 11
FIXTURES, SIGNS, AND ALTERATIONS
11.1. FIXTURES. All readily movable furnishings, store fixtures and
equipment (other than the Fixtures) owned and used by Tenant in the Premises
shall at all times during the Term be and remain the property of the Tenant.
Except a provided in Section 4.3, upon expiration of this Lease, Tenant shall
remove all such furnishings, fixtures and equipment and restore the Premises as
provided in Section 18.1, provided that Tenant shall not remove any equipment,
conduits and fixtures providing water, plumbing, electrical, heating,
ventilation, air conditioning, lighting and sewer service to the Premises, all
of which, together with any other furnishings, fixtures and equipment not
removed by Tenant as provided above, shall become the property of Landlord upon
expiration of the Term or termination of Tenant's right to possession of the
Premises pursuant to Article 16. Tenant hereby approves of the signage on the
Premises as of the date hereof.
11.2. SIGNS. Tenant shall have the right to place signs on the exterior
and interior of the Premises, provided that the size, style, appearance and
location of all exterior signs and all interior signs visible from the exterior
of the Premises shall be subject to the approval of Landlord, which shall not be
unreasonably withheld. Landlord shall have the right to remove any unapproved
sign without notice to Tenant, and Tenant shall pay Landlord's cost of removal
within five (5) days after demand. Tenant shall, at its own expense, maintain
and keep in good repair its signs, and upon expiration or earlier termination of
this Lease or Tenant's possession hereunder, shall remove all such signs and
repair any damage caused thereby. Tenant hereby approves of the signage on the
Premises as of the date hereof.
11.3. ALTERATIONS. Tenant shall not make any alterations, additions,
improvements or changes in the Premises without in each instance first obtaining
the prior written consent of Landlord, which shall not be unreasonably withheld.
All such permitted alterations, improvements and changes in the Premises shall
be at Tenant's expense and shall be performed in accordance with plans approved
by Landlord and shall comply with all Insurance requirements and with applicable
governmental laws, statutes, ordinances, rules and regulations. All such
alterations, improvements and changes shall become the property of the Landlord,
unless otherwise agreed to in ▇▇▇▇▇▇▇ by the Landlord.
ARTICLE 12
CONDEMNATION
12.1. CONDEMNATION. If all or a substantial portion of the Premises or if
a material part of the Shopping Center shall be taken or condemned for any
public or quasi-public use or purpose by any competent authority by the exercise
of the right of eminent domain or by agreement or conveyance in lieu thereof,
Landlord and Tenant shall each have the right to terminate this Lease upon
notice to the other party within thirty (30) days after possession is taken by
the authority. If this Lease is terminated pursuant to this Section 12.1, it
shall terminate as of the date possession shall be so taken. If this Lease is
not so terminated, it shall terminate only with respect to the parts of the
Premises, if any, so taken as of the date
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possession shall be taken by such authority, and thereafter, the Minimum Rent
shall be reduced in direct proportion to the amount of leasable space of the
Premises taken, and Landlord agrees, at Landlord's cost and expense, as soon as
reasonably practical to restore the remainder of the Shopping Center to a
complete unit of similar quality and character as existed prior to such taking
(to the extent feasible); provided that Landlord shall not be required to expend
more on such restoration than an amount equal to the condemnation award received
by Landlord on account of such taking (less all expenses, costs and legal fees
incurred by Landlord in connection with such award).
12.2. OWNERSHIP OF AWARD. As between Landlord and Tenant, all
compensation, awards and damages for any Condemnation of all or any part of the
Shopping Center shall belong to the Landlord without any deduction therefrom for
any present or future estate of Tenant, and Tenant hereby assigns to Landlord
all its right, title and interest to any such award.
ARTICLE 13
INSURANCE AND WAIVER OF CLAIMS
13.1. INSURANCE TO BE PROVIDED BY TENANT. Tenant shall maintain throughout
the term, at its expense, insurance of the following character; (a) casualty
insurance against loss or damage by fire and other risks from time to time
included under "extended coverage" policies in the amount of the full
replacement cost of all Tenant Improvements, the Fixtures and all subsequent
alterations, improvements and changes to the Premises and all furniture, trade
fixtures, equipment, merchandise and all other Items of Tenant's property on the
Premises including builders risk coverage on any improvements under construction
in the Premises; (b) comprehensive general public liability insurance (including
contractual liability) against claims for bodily injury, death or property
damage occurring on, in or about the Premises and the adjoining streets,
sidewalks and passageways, such insurance to afford protection of not less than
$2,000,000 combined single limit per occurrence, provided that such limits of
liability shall be Increased at the direction of Landlord if in Landlord's
reasonable judgment increased limits are required to protect Landlord and Tenant
against exposure for claims covered thereby; (c) workmen's compensation
insurance in amounts required by applicable law or statute covering all persons
employed in connection with any work done on or about the Premises with respect
to which claims for death or bodily injury could be asserted against Landlord,
Tenant or the Premises; (d) if the Permitted Use include sale of alcoholic
beverages, insurance covering any claims arising under applicable law relating
to the storage, sale, use or giving away of any alcoholic or other intoxicating
liquor or beverage, which claims could be asserted against Landlord, Tenant or
the Premises in such amount as may be reasonably specified by Landlord; (e)
insurance against loss or damage to plate glass in or on the Premises; and (f)
such other insurance on the Premises in such amounts and against such other
insurable hazards which at the time are commonly obtained in the case of
property similar to the Premises.
13.2. GENERAL TENANT INSURANCE, REQUIREMENTS. Each policy of insurance
referred to in Section 13.1 shall be written on an occurrence basis and shall be
in form and substance and be issued by a company satisfactory to Landlord and
shall name as the insured parties thereunder Landlord (including its agents,
beneficiaries and other parties designated by Landlord) and Tenant, as their
interests may appear. On or prior to the Commencement Date, Tenant shall deliver
to Landlord certificates of the insurers, evidencing all the insurance which is
required to be maintained by Tenant hereunder together with evidence of the
payment of all premiums therefor, and Tenant shall, within thirty (30) days
prior to the expiration of any such insurance, deliver certificates of the
insurers evidencing the renewal or replacement of such insurance together with
evidence of the payment of all premiums therefor.
13.3. WAIVER OF CLAIMS. To the extent permitted by law, and except for
Landlord's gross negligence or willful misconduct, Landlord shall not be liable
to Tenant for any business interruption or any loss or damage to property or
injury to or death of persons occurring in the Premises or the Shopping Center
or in any manner growing out of or connected with Tenant's use and occupation of
the Premises or the Shopping Center or the condition thereof. Tenant agrees to
have all insurance which may be carried by Tenant endorsed with a clause
providing that any release from liability of or waiver of claim for recovery
from Landlord entered into in writing by Tenant prior to any loss or damage
shall not affect the
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validity of such policy or the right of the insured to recover thereunder and
providing further that the insurer waives all rights of subrogation which such
insurer might have against the other party.
ARTICLE 14
DAMAGE OR DESTRUCTION
In the event that the Premises or the Shopping Center are totally or
partially damaged or destroyed by fire or other casualty, the damaged or
destroyed areas shall be repaired and rebuilt by Landlord at Landlord's expense;
provided, however, if (a) such damage results from a cause not insured; (b) the
cost of repair or restoration exceeds the amount of insurance proceeds received
by Landlord and available for restoration of the Premises: or (c) fifty percent
(50%) or more of the leasable area of the Shopping Center shall be damaged or
destroyed by fire or other casualty, notwithstanding that the Premises may be
unaffected by such fire or other casualty, Landlord may elect to terminate this
Lease upon giving notice of such election in writing to Tenant within sixty (60)
days after the occurrence of the event causing the damage. If Landlord is
required or elects to rebuild as herein provided, Landlord shall rebuild the
damaged areas of the Premises or Shopping Center with due diligence provided
that Landlord shall have no responsibility to rebuild or restore the Tenant
improvements or any portion of the Premises constructed by Tenant at its
expense. If the casualty or the repairing or rebuilding shall render the
Premises untenantable in whole or in part, a proportionate abatement of the
Minimum Rent shall be allowed from the date when the damage occurred until the
date when the Premises have been restored by Landlord, such proportion to be
computed on the basis that the leasable area of the portion of the Premises
rendered untenantable and not occupied by Tenant bears to the aggregate leasable
area of the Premises.
ARTICLE 15
ASSIGNMENT, SUBLETTING AND ENCUMBRANCE
15.1. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or any
interest therein or sublet the Premises or any portion thereof without at least
thirty (30) days' prior written notice to Landlord, which cannot be
unreasonably withheld and no such permitted assignment or subletting shall
relieve Tenant or any guarantor hereof of Tenant's or such guarantor's covenants
and agreements hereunder or under any guaranty. The assignment or sublease
pursuant hereto shall not be deemed to be a waiver of the provisions of this
Section with respect to any subsequent assignment or sublease. Each such
permitted sublease shall expressly be made subject to the provisions of this
Lease. If Tenant assigns any of its rights and interests under this Lease, the
assignee under such assignment shall expressly assume all the obligations of
Tenant hereunder in a written instrument satisfactory to Landlord, which cannot
be unreasonably withheld at the time of such assignment. A change in the
beneficial or record ownership of any class of capital stock of Tenant or a
transfer of partnership interests or membership interests or the beneficial
interest in Tenant shall be treated as and deemed to be an assignment of this
Lease within the foregoing provisions of this Section, if the effect of same
shall be to result in a change in management or control of Tenant. Any
assignment or sublease made in violation of this Section shall be void.
15.2. ENCUMBRANCE. Neither this Lease nor any estate or interest granted
herein shall be mortgaged, pledged or encumbered by Tenant, nor shall Tenant
mortgage, pledge or encumber the interest of Tenant in and to any sublease of
the Premises or the rentals payable thereunder, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, and
Tenant shall not allow or permit any transfer of this Lease or any interest
hereunder by operation of law. Any such mortgage, pledge, encumbrance or
transfer made in violation of this Section shall be void.
ARTICLE 16
DEFAULT
16.1. EVENTS OF DEFAULT. Any one or more of the following occurrences or
acts shall constitute an event of default under this Lease (an "Event of
Default"): (a) Tenant fails to pay Rent within five (5) days of written notice
that such Rent is past due; (b) Tenant fails to cure, immediately after notice
from Landlord, any hazardous condition which Tenant has created or suffered in
violation of law or this Lease; (c) Tenant fails to observe or perform any of
the covenants in respect to assignment, subletting and
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encumbrance set forth in Article 15 regardless of whether any such assignment,
subletting or encumbrance is void or voidable; (d) Tenant fails to observe or
perform any other provision of this Lease for twenty (20) days after Landlord
shall have delivered to Tenant written notice of such failure; (e) Tenant fails
to continuously operate the Premises; (f) Tenant fails to take possession of the
Premises when possession is tendered by Landlord; or (g) Tenant fails to submit
plans or other Information regarding the Tenant improvements for Landlord's
approval or to commence and complete construction of the Tenant improvements to
be constructed by Tenant when and as required by the provisions of this Lease
and open its business therein promptly upon such completion. If an Event of
Default shall have occurred, Landlord may, by written notice to Tenant, either
terminate this Lease or terminate Tenant's rights of possession of the Premises
on a date specified in such notice. Immediately thereafter, Landlord may
re-enter and repossess the Premises or any part thereof by force, summary
proceedings, ejectment or otherwise and the right to remove all persons and
property therefrom. Landlord shall be under no liability for or by reason of any
such entry, repossession or removal. At any time or from time to time after the
repossession of the Premises, Landlord may relet the Premises or any part
thereof, in the name of Tenant or Landlord or otherwise, without notice to
Tenant, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Term) and on such
conditions (which may include concessions or free rent) and for such uses as
Landlord may determine, and Landlord may collect and receive any rents payable
by reason of such reletting. Landlord shall not be responsible or liable for any
failure to collect any rent due upon such reletting. The termination of this
Lease, the repossession of the Premises and the reletting of the Premises shall
not relieve Tenant of its liabilities and obligations hereunder, all of which
shall survive such expiration, termination, repossession or reletting.
16.2. DAMAGES. In the event of the termination of this Lease or the
repossession of the Premises by reason of the occurrence of an Event of Default,
Tenant shall pay to Landlord the Rent and other sums which would be payable
under this Lease by Tenant in the absence of such termination or repossession,
less the net proceeds, if any, of any reletting, after deducting from such
proceeds all of Landlord's expenses reasonably incurred in connection with such
reletting, including all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, employee expenses, alteration costs and expenses of
preparation for such reletting. Tenant shall pay such damages on the days on
which Rent would have been payable under this Lease in the absence of such
expiration, termination or repossession. In lieu of such damages, Landlord shall
be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand,
as and for liquidated damages for Tenant's default fit being agreed that it
would be impracticable or extremely difficult to fix the actual damages, an
amount equal to the excess, if any, of (a) the Rent and other sums which would
be payable under this Lease from the date of such expiration, termination or
repossession over (b) the then net rental value of the Premises, discounted to
present value at an interest rate per annum for the same period reasonably
determined by Landlord.
16.3. RIGHTS CUMULATIVE, NON-WAIVER. No right or remedy herein conferred
upon or reserved to Landlord is Intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be cumulative and in addition
to any other right or remedy given hereunder or now or hereafter existing at law
or in equity. The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option, right, power
or remedy contained in this Lease shall not be construed as a waiver or
relinquishment thereof for the future. The receipt by Landlord of any Rent or
any other sum payable hereunder with knowledge of the breach of any covenant or
agreement contained in this Lease shall not be deemed a waiver of such breach,
and no waiver by Landlord of any provision of this Lease shall be deemed to have
been made unless expressed in ▇▇▇▇▇▇▇ and signed by Landlord.
16.4. LEGAL EXPENSES. In the event that Tenant or Landlord shall be in
default in the performance of any of its obligations under this Lease, and an
action shall be brought for the enforcement thereof in which it shall be
determined that such party was in default, defaulting party shall pay to the
non-defaulting party all reasonable attorneys' fees and litigation expenses
incurred or paid by the non-defaulting party in connection therewith. In the
event Landlord shall, without fault on its part, be made a party to any
litigation commenced against Tenant, Tenant shall pay as additional rent all
costs and reasonable attorneys' fees incurred or paid by Landlord in connection
with such litigation.
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16.5. LANDLORD'S RIGHT TO CURE. Landlord may, but shall not be obligated
to, cure any default by Tenant after complying with the notice provisions herein
set forth, and whenever Landlord so elects, all costs and expenses paid or
incurred by Landlord in curing such default, including reasonable attorneys'
fees, shall be additional rent due on demand with interest as provided in
Section 3.7.
ARTICLE 17
ESTOPPEL CERTIFICATES; SUBORDINATION;
MORTGAGEE PROTECTION
17.1. ESTOPPEL CERTIFICATES. Within five (5) days after request therefor
by Landlord, Tenant agrees to deliver a certificate in the form presented by
Landlord to any proposed mortgagee or purchaser of the Premises, or to Landlord,
certifying (if such be the case, or if not the case specifying with particularly
any exception) to matters requested by Landlord, including the following; (a)
that Tenant is in full and complete possession of the Premises, such possession
having been delivered by Landlord and accepted by Tenant; (b) that any
improvements required to be furnished by Landlord by the terms of this Lease
have been completed in all respects to the satisfaction of Tenant; (c) that this
Lease is in full force and effect and has not been amended, modified,
supplemented or superseded; (d) that there is no existing default on the part of
Landlord in the performance of any covenant, agreement or condition contained in
this Lease to be performed by Landlord; (e) that Tenant does not have any actual
or pending claim against Landlord; (f) the dates of commencement and termination
of the Term; and (g) the date through which Rent and other charges hereunder
have been paid. Tenant shall not be obligated to agree to any additional
obligations or extensions of time periods in connection with Tenant's execution
of an estoppel certificate.
17.2. SUBORDINATION/SUPERIORITY. The rights and interests of Tenant under
this Lease shall be subject and subordinate to any mortgage or trust deed that
may hereafter be placed upon the Shopping Center, or any part thereof, and to
any and all advances to be made thereunder and to the interest thereon and all
renewals, amendments, modifications, replacements and extensions thereof. Tenant
shall, within ten (10) days following the request of Landlord or such secured
party, execute and deliver whatever instruments may be required to further
evidence or confirm the foregoing.
17.3. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagee of the
Shopping Center, by registered or certified mail, a copy of any notice of
default served upon the Landlord by Tenant, provided that prior to such notice,
Tenant has been notified in writing of the name and address of such mortgagee.
Tenant further agrees that Tenant shall have no right to, and shall not, take
any action with respect to this Lease adverse to the interests of Landlord or
any such mortgagee on account of Landlord's default if Landlord or such
mortgagee is diligently pursuing the remedies or steps necessary to cure or
correct such default, including commencement of foreclosure proceedings if
necessary to effect such a cure.
ARTICLE 18
SURRENDER AND HOLDOVER
18.1. SURRENDER. Upon the expiration and earlier termination of this
Lease, Tenant shall peaceably surrender the Premises to Landlord in the
condition in which the Premises are required to be maintained by the terms of
this Lease. Tenant shall surrender all keys for the Premises to Landlord at the
place then fixed for the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Premises. Tenant shall,
at its expense, remove from the Premises on or prior to such expiration or
earlier termination all furnishings, fixtures and equipment situated thereon
(including all exterior and interior signs) which are not the property of
Landlord as provided in Section 11.1, and Tenant shall, at its expense, on or
prior to such expiration or earlier termination, repair any damage caused by
such removal. Any property not so removed shall become the property of Landlord,
and Landlord may thereafter cause such property to be removed from the Premises
and disposed or at Tenants expense.
18.2. HOLDOVER. In the event the Tenant or any party claiming under Tenant
holds over in possession at the expiration of the Term by lapse of time or
otherwise, such holding over shall not be deemed to extend the Term or renew
this Lease, and such holding over shall be an unlawful detainer and
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such parties shall be subject to immediate eviction and removal. Tenant shall
pay upon demand to Landlord during any period while Tenant shall hold the
Premises after expiration of the Term, as liquidated damages, a sum equal to
double the monthly Rent in effect for the last month of the Term, and Tenant
shall also pay all damages, consequential as well as direct, sustained by
Landlord by reason of such holding over.
ARTICLE 19
SECURITY DEPOSIT
The Security Deposit shall be held by Landlord as security for the full
and faithful performance by Tenant of each and every term, covenant and
condition of this Lease on the part of Tenant to be observed and performed, and
Landlord shall have no liability to pay interest thereon unless required by law.
If any Rent herein reserved or any other sums payable by Tenant hereunder shall
be overdue and unpaid, then Landlord may, at its option, and without prejudice
to any other remedy which Landlord may have on account thereof, apply the
Security Deposit or so much thereof as may be necessary to compensate Landlord
toward the payment of the Rent due from Tenant; and in such event, Tenant shall
forthwith upon demand restore the Security Deposit to its original amount, and
the sum required to so restore the Security Deposit shall be additional rent
hereunder. In the event Tenant shall have fully and faithfully complied with all
of the terms, covenants and conditions of this Lease, the Security Deposit shall
be returned in full to Tenant within thirty (30) days following the end of the
Term or earlier termination of this Lease. Landlord may deliver the Security
Deposit to the purchaser of Landlord's interest in the Premises, in the event
that such interest is sold. However, Landlord shall remain liable to the Tenant
for the repayment of the Security Deposit unless the purchaser of Landlord's
interest in the Premise acknowledges in writing that it has received the
Security Deposit and has assumed liability for its return.
ARTICLE 20
HAZARDOUS MATERIALS PROVISIONS
20.1. DEFINED TERMS.
(a) "Claim" shall mean and include any demand, cause of action,
proceeding or suit for any one or more of the following: (i) actual or
punitive damages, losses, injuries to person or property, damages to
natural resources, fines, penalties, interest, contribution or settlement,
(ii) the costs and expenses of site investigations, feasibility studies,
information requests, health or risk assessments, or Response (as defined
below) actions and (iii) the costs and expenses of enforcing insurance,
contribution or indemnification agreements.
(b) "Environmental Laws" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules in effect and as
amended from time to time relating to environmental quality, health,
safety, contamination and cleanup, including the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.
and the Water Quality Act of 1987; the Federal Insecticide, Fungicide and
Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 et seq.; the Marine
Protection Research and Sanctuaries Act, 33 U.S.C. Section 1401 et seq.;
the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the
Noise Control Act, 42 U.S.C. Section 4901 et seq.; the Occupational Safety
and Health Act, 29 U.S.C. Section 651 et seq.; the Resource Conservation
and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq.; as amended by
the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water
Act, 42 U.S.C. Section 3001 et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section
9601 et seq., as amended by the Superfund Amendments and Reauthorization
Act, the Emergency Planning and Community Right to Know Act, and the Radon
Gas and Indoor Air Quality Research Act; the Toxic Substances Control Act
("TSCA"), 15 U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C.
Section 2011 et seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C.
Section 10101 et seq.; and the Environmental Protection Act of Illinois
("IEPA"), III. Rev. Stat. ch. 111 112, para. 1001 et seq.; and state and
local superlien and environmental statutes and ordinances, with
implementing regulations, rules and guidelines, as any of the foregoing
may be
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amended from time to time. Environmental Laws shall also include all
state, regional, county, municipal, and other local laws, regulations, and
ordinances insofar as they are equivalent or similar to the federal laws
recited above or purport to regulate Hazardous Materials (as defined
below).
(c) "Hazardous Materials" shall mean and include the following: any
hazardous substance, pollutant, contaminant, waste, by-product or
constituent regulated under CERCLA; oil and petroleum products and natural
gas, natural gas liquids, liquefied natural gas and synthetic gas usable
for fuel; pesticides regulated under FIFRA; asbestos and asbestos
containing materials, PCBs, and other substances regulated under TSCA;
source material, special nuclear material by product material and any
other radioactive materials or radioactive wastes, however produced,
regulated under the Atomic Energy Act or the Nuclear Waste Policy Act;
chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R.
Section 1910.1200 et seq.; and industrial process and pollution control
wastes whether or not hazardous within the meaning of RCRA, and any other
hazardous substance, pollutant or contaminant regulated under any other
Environmental Law.
(d) "Manage" or "Management" means to generate, manufacture,
process, treat, store, use, re-use, refine, recycle, reclaim, blend or
burn for energy recovery, incinerate, accumulate speculatively, transport,
transfer, dispose of or abandon Hazardous Materials.
(e) "Release" or "Released" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing of Hazardous Materials
into the environment, as "environment" is defined in CERCLA.
(f) "Response" or "Respond" shall mean action taken to correct,
remove, remediate, clean up, prevent, mitigate, monitor, evaluate,
investigate, assess or ▇▇▇▇▇ the Release of a Hazardous Material.
20.2. TENANT'S OBLIGATIONS WITH RESPECT TO ENVIRONMENTAL MATTERS. During
the Term of this Lease, (i) Tenant shall comply at its sole cost and expense
with all Environmental Laws; (ii) Tenant shall not Manage, or authorize the
Management of, any Hazardous Materials on the Premises, including installation
of any underground storage tanks, without prior written disclosure to and prior
written approval by Landlord; (iii) Tenant shall not take any action that would
subject the Premises to the permit requirements under RCRA for storage,
treatment or disposal of Hazardous Materials; (iv) Tenant shall not dispose of
Hazardous Materials in dumpsters provided by Landlord for tenant use; (v) Tenant
shall not discharge Hazardous Materials into Project drains or sewers; (vi)
Tenant shall not cause or allow the Release of any Hazardous Materials on, to or
from the Project or land and (vii) Tenant shall arrange at its sole cost and
expense for the lawful transportation and off-site disposal at permitted
landfills or other permitted disposal facilities and otherwise in accordance
with all applicable Environmental Laws, of all Hazardous Materials that it
generates.
20.3. COPIES OF NOTICES. During the Term of this Lease, Tenant shall
provide Landlord promptly with copies of all summons, citations, directives,
information inquiries or requests, notices of potential responsibility, notices
of violation or deficiency, orders or decrees, Claims, complaints,
investigations, judgments, letters, notices of environmental liens or Response
actions in progress, and other communications, written or oral, actual or
threatened, from the United States Environmental Protection Agency, Occupational
Safety and Health Administration, Illinois Environmental Protection Agency, or
other federal, state or local agency or authority, or any other entity or
individual, concerning (i) any actual or alleged Release of a Hazardous Material
on, to or from the Premises; (ii) the imposition of any lien on the Premises;
(iii) any actual or alleged violation of, or responsibility under, any
Environmental Laws; or (iv) any actual or alleged liability under any theory of
common law tort or toxic tort, including negligence, trespass, nuisance, strict
liability, or ultrahazardous activity.
20.4. LANDLORD'S RIGHT TO INSPECT. Landlord and Landlord's employees shall
have the right to enter the Premises and conduct appropriate inspections or
tests for the purpose of (i) determining
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Tenant's compliance with Environmental Laws and (ii) determining the type, kind
and quantity of all products, materials and substances brought onto the
Premises, or made or produced thereon. Landlord and its agents and
representatives shall have the right to take samples in quantities sufficient
for analysis of all products, materials and substances present on the Premises,
including samples, products, materials or substances brought onto or made or
produced on the Premises by Tenant or its agents, employees, contractors or
invitees. Tenant agrees to cooperate with such investigations by providing any
relevant information requested by Landlord, including information Landlord
requests to comply with the Illinois Responsible Property Transfer Act, III.
Rev. Stat. ch. 30, para. 901 et seq. (1989), 765 ILCS 90/i et seq. (1992).
Tenant may not perform any sampling, testing, or drilling to locate Hazardous
Materials on the Premises without Landlord's prior written consent.
20.5. TESTS AND REPORTS. Within ten (10) days of Tenant's receipt of a
written request by Landlord, Tenant shall provide Landlord with (i) copies of
all environmental reports and tests obtained by Tenant; (ii) copies of
transportation and disposal contracts (and related manifests, schedules,
reports, and other information) entered into or obtained by Tenant with respect
to any Hazardous Materials; (iii) copies of any permits issued to Tenant under
Environmental Laws with respect to the Premises; (iv) copies of any and all
reports, notifications, and other filings made by Tenant to any federal, state,
or local environmental authorities or agencies; and (v) any other applicable
documents and information with respect to environmental matters relating to the
Premises. Tenant shall provide Landlord with the results of appropriate reports
and tests, with transportation and disposal contracts for Hazardous Materials,
with any permits issued under Environmental Laws, and with any other documents
necessary to demonstrate that Tenant complies with all Environmental Laws
relating to the Premises.
20.6. TENANT'S OBLIGATION TO RESPOND. If Tenant's Management of Hazardous
Materials at the Premises (i) gives rise to liability or to a Claim under any
Environmental Law, or any common law theory of tort or otherwise, (ii) causes a
threat to, or endangers, the public health; or (iii) creates a nuisance or
trespass, Tenant shall, at its sole cost and expense, promptly take all
applicable action in response so as to comply with all applicable Environmental
Laws and eliminate or avoid any liability claim with respect thereto.
20.7. LANDLORD'S RIGHT TO ACT. In the event that Tenant shall fail to
comply with any of its obligations under this Article 20 as and when required
hereunder, Landlord shall have the right (but not the obligation) to take such
action as is required to be taken by Tenant hereunder and in such event, Tenant
shall be liable and responsible to Landlord for all costs, expenses,
liabilities, claims and other obligations paid, suffered, or incurred by
landlord in connection with such matters. Tenant shall reimburse Landlord
immediately upon demand for all such amounts for which Tenant is liable.
20.8. INDEMNIFICATION. Notwithstanding anything contained in this Lease to
the contrary. Tenant shall reimburse, defend, indemnify and hold Landlord, and
its beneficiaries, officers, directors, shareholders, employees, and agents,
free and harmless from and against any and all Claims. Response costs, losses,
liabilities, damages, costs, and expenses, including loss of rental income, loss
due to business interruption, and reasonable attorneys' fees and costs, arising
out of or in any way connected with any or all of the following:
(a) any Hazardous Materials which, at any time during the Term, are
or were actually or allegedly Managed, generated, stored, treated,
released, disposed of or otherwise located on or at the Premises
(regardless of the location at which such Hazardous Material are now or
may in the future be located or disposed of) including any and all
obligations to take Response, cleanup of corrective action pursuant to any
investigation or remediation in connection with the decontamination,
removal, transportation, incineration or disposal or any of the foregoing;
and
(b) any actual or alleged illness, disability, injury, or death of
any person, in any manner arising out of or allegedly arisen out of
exposure to Hazardous Materials or other substances or conditions present
at the Premises, regardless of when any such illness, disability, injury,
or death shall have occurred or been incurred or manifested itself; and
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(c) any actual or alleged failure of Tenant or the Premises at any
time and from time to time to comply with all applicable Environmental
Laws, whether before or after the effective date of this Lease; and
(d) any failure by tenant to comply with its obligations under this
Article 20.
In the event any Claims or other assertion of liability shall be made
against Landlord for which Landlord is entitled to indemnity hereunder, Landlord
shall notify Tenant of such Claim or assertion of liability and thereupon Tenant
shall, at its sole cost and expense, assume the defense of such Claim or
assertion of liability and continue such defense at all times thereafter until
completion. The obligations of Tenant under this Article 20 shall survive any
termination or expiration of this Lease.
ARTICLE 21
AMERICANS WITH DISABILITIES ACT
The parties acknowledge that the Americans With Disabilities Act of 1990
(42 U.S.C. Section 12101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA"), establish requirements under
Title III of the ADA ("Title III") pertaining to business operations,
accessibility and barrier removal, and that such requirements may or may not
apply to the Premises and the Shopping Center. The parties acknowledge and agree
that Tenant has been provided an opportunity to inspect the Premises and the
Shopping Center sufficient to determine whether or not the Premises and the
Shopping Center in their condition current as of the date hereof deviate in any
manner from the ADA or any other requirements under the ADA pertaining to the
accessibility of the Premises or the Shopping Center. Tenant further
acknowledges and agrees that except as may otherwise be specifically provided
herein, Tenant accepts the Premises and the Shopping Center in "as-is"
condition. Tenant has prepared or reviewed the plans and specifications for the
Tenant's Improvements and has independently determined that such plans and
specifications are in conformance with the ADA and any other requirements of the
ADA. Tenant further acknowledges and agrees that to the extent that Landlord
prepared, reviewed or approved any of those plans and specifications, such
action shall in no event be deemed any representation or warranty that the same
comply with any requirements of the ADA. Tenant shall be solely responsible for
all requirements under the ADA relating to Tenant or any affiliates or persons
or entitles related to Tenant or operations of Tenant or its affiliates, or the
Premises.
ARTICLE 22
GENERAL PROVISIONS
22.1. SUCCESSORS. Subject to Articles 15 and 17, all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors and assigns.
22.2. NOTICES. All notices, demands, requests, consents, approvals and
other instruments required or permitted to be given pursuant to the terms of
this Lease shall be in writing and shall be deemed to have been properly given
when personally served or one (1) business day after being deposited with a
nationally recognized overnight courier or three (3) days after being sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Tenant at Tenant's Address or Landlord at Landlord's Address, as
the case may be, Landlord and Tenant shall each have the right from time to time
to specify as its address for purposes of this Lease any other address in the
United States of America upon notice thereof to the other party.
22.3. NO OPTION. The submission of this Lease for examination does not
constitute an offer to enter into a lease, and this Lease shall become effective
only upon execution and delivery hereof by Landlord and Tenant.
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22.4. NO JOINT VENTURE. The relationship of the parties is that of
landlord and tenant only, and nothing in this Lease shall be construed as
creating a partnership, joint venture or principal-agent or any other
relationship.
22.5. BROKER. Tenant represents and warrants to Landlord that Tenant has
not dealt with any broker or finder entitled to any commission, fee or other
compensation by reason of the execution of this Lease and Tenant agrees to
indemnify and hold Landlord harmless from any charge, liability or expense
(including attorneys' fees) Landlord may suffer, sustain or incur in respect to
any claim for a commission, fee or other compensation by a broker or finder
claiming by, through or under Tenant.
22.6. INTERPRETATION. The headings and captions contained in this Lease
are inserted for convenience of reference only and are not to be deemed part of
or to be used in construing this Lease. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense where
there is more than one Tenant and to either corporations, associations,
partnerships or individuals, males or females, shall in all instances be assumed
as though in each case fully expressed. If there be more than one Tenant, the
liability of all such parties for compliance with and performance of the terms
and covenants of this Lease shall be joint and several. If any term or provision
of this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease shall not be affected thereby, and each term and provision of this
Lease shall be valid and enforced to the full extent permitted by law. Time is
of the essence of this Lease, and all provisions herein relating thereto shall
be strictly construed. This Lease and the Exhibits attached hereto and forming a
part hereof set forth all the covenants, conditions and understandings between
Landlord and Tenant concerning the Premises, and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between Landlord and Tenant concerning the Premises except those herein set
forth. Except as otherwise provided herein, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by them. This Lease shall be construed and
enforced in accordance with the laws of the State of Illinois.
22.7. SURVIVAL. Any provision of this Lease which obligates Landlord or
Tenant to pay an amount or perform an obligation before the commencement of the
Term or after the expiration of the Term shall be binding and enforceable
notwithstanding that payment or performance is not within the Term, and the same
shall survive.
22.8. ASSIGNMENT BY LANDLORD. The term Landlord" as used in this Lease, so
far as the covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners at the time in question
of the Premises, and, in the event of any transfer or transfers of title
thereto, Landlord named herein (and in case of any subsequent transfer or
conveyance, the then grantor) shall be automatically relieved from and after the
date of such transfer or conveyance of all liability as respects the performance
of any covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed.
22.9. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent herein stipulated shall be deemed to be other
than on account of the stipulated Rent, nor shall any endorsement or statement
on any check or any letter or other communication accompanying any check or
payment as Rent be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other remedy in this Lease provided.
22.10. RECORDING. Tenant shall not record this Lease, or any memorandum of
or other reference to this Lease, without the written consent of Landlord.
22.11. FORCE MAJEURE. If Landlord fails to timely perform any of the
terms, covenants and conditions of this Lease on Landlord's part to be performed
and such failure is due in whole or in part to any strike, lockout, labor
trouble, civil disorder, inability to procure materials, failure of power,
restrictive governmental laws and regulations, riots, insurrections, war, fuel
shortages, accidents, casualties, acts of God, acts caused directly or
indirectly by Tenant (or Tenant's agents, employees, contractors, licensees
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EXHIBIT B
EXCLUSIVE USES
1. A dry cleaner or laundry.
2. A salon and day spa.
3. A retail tire store.
4. QUIZNO'S EXCLUSIVE. During the Term or any extension of the Term of this
Lease, and so long as Tenant is not in default hereunder and continues to
use the Premises for the Permitted Use in accordance with the terms of
this Lease, Landlord agrees that it shall not lease space in the Shopping
Center to any tenant whose primary business is selling submarine
sandwiches to the public.
5. CHOICECARE HOME HEALTHCARE EXCLUSIVE. During the Term of this Lease, and
so long as Tenant continues to use the Premises for the Permitted Use in
accordance with the terms of this Lease, and other than any permitted
uses, by any tenants, or pursuant to any leases in effect or subleases
thereof, in the Shopping Center as of the date hereof, Landlord shall not
lease space in the Shopping Center to any tenant whose primary business is
home health care related services.
6. DUNKIN DONUTS/▇▇▇▇▇▇ ▇▇▇▇▇▇▇ EXCLUSIVE. During the Term of this Lease, and
so long as Tenant continues to use the Premises for the Permitted Use in
accordance with the terms of this Lease, and other than any permitted uses
by any tenants, or pursuant to any leases in effect or subleases thereof,
in the Shopping Center as of the date hereof, Landlord shall not lease
space in the Shopping Center to any tenant whose primary business is the
sale of coffee, donuts or ice cream.
7. PRO-REHAB SERVICES EXCLUSIVE. During the Term of this Lease, and so long
as Tenant continues to use the Premises for the Permitted Use in
accordance with the terms of this Lease, and other than any permitted uses
by any tenants, or pursuant to any leases in effect or subleases thereof,
in the Shopping Center as of the data hereof, Landlord shall not lease
space in the Shopping Center to any tenant whose primary business is
rehabilitation services.
8. RADIOMAN ONSITE EXCLUSIVE. During the Term of this Lease, and so long as
Tenant continues to use the Premises for the Permitted Use in accordance
with the terms of this Lease, and other than any permitted uses by any
tenants, or pursuant to any leases in effect or subleases thereof, in the
Shopping Center as of the date hereof. Landlord shall not lease space in
the Shopping Center to any tenant whose primary business is the retail
sale of cellular telephone products and services.
GUARANTY
FOR VALUE RECEIVED, and in consideration of and as an inducement for the
execution and delivery of that certain Strip Center Retail Lease demising
certain Premises located in Tinley Park, Illinois (the "Lease") between ▇▇▇▇▇
▇▇▇▇▇▇ Developers, L.L.C., an Illinois limited liability company ("Landlord"),
and Expert Automotive Group, LLC ("Tenant"), the undersigned, ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇ (the "Guarantors") hereby guarantees to the Landlord, its successors and
assigns the full and prompt payment of Rent (as defined in the Lease) and any
and all other sums and charges payable by Tenant, its successors and permitted
assigns under the Lease and further hereby guarantees the full and timely
performance and observance of all the covenants, terms, conditions and
agreements therein provided to be performed and observed by Tenant, its
successors and permitted assigns; and the Guarantors hereby covenant and agree
to and with Landlord, its successors and assigns that if default shall at any
time be made by Tenant, its successors or permitted assigns in the payment of
any Rent or any other sums and charges payable by Tenant, its successors
permitted assigns under the Lease, or if Tenant should default in the
performance and observance of any of the covenants, terms, conditions or
agreements contained in the Lease, the Guarantors shall forthwith pay such Rent
and such other sums and charges to Landlord, its successors and assigns and any
arrears thereof and shall forthwith faithfully perform and fulfill all such
terms, conditions and agreements and shall forthwith pay to the Landlord all
damages that may arise in consequence of any default by Tenant, its successors
and permitted assigns under the Lease, including, without limitation, all
reasonable attorney's fees and disbursements incurred by Landlord or caused by
any such default and/or by the enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guarantee of payment and of
performance. It shall be enforceable against the Guarantors without the
necessity of any suit or proceedings on Landlord's part of any kind or nature
whatsoever against Tenant, its successors or permitted assigns and without the
necessity of any notice of nonpayment, nonperformance or nonobservance or of any
notice of acceptance of this Guarantee or of any other notice or demand to which
the Guarantors might otherwise be entitled, all of such the Guarantors hereby
expressly waive and the Guarantors hereby expressly that the validity of this
Guaranty and the obligations of the Guarantors hereunder shall not be
terminated, affected, diminished or impaired by reason of the Lease or by relief
of Tenant from any of Tenant's obligations under the Lease or otherwise
(including, but not by way of limitation, the rejection of the Lease in
connection with the proceedings under the bankruptcy laws now or hereafter in
effect).
This Guaranty shall be a continuing guarantee and the liability of the
Guarantors hereunder shall in no way be affected, modified or diminished by
reason of any assignment, renewal, modification or extension of the Lease or by
reason of any modification or waiver of or change in any of the terms,
covenants, conditions or provisions of the Lease or by reason of any extension
of time that may be granted by Landlord to Tenant, its successors or permitted
assigns or a changed or different use of the Premises (as defined in the Lease)
consented to in writing by Landlord or by reason of any dealings or transactions
or matters or things occurring between Landlord and Tenant, its successors or
permitted assigns, whether or not notice thereof is given to Guarantors.
Landlord's consent to any assignment or assignments and successive assignments
by Tenant and Tenant's assigns if the Lease made either with or without notice
to the Guarantors, shall in no manner whatsoever release the Guarantors from any
liability as Guarantors.
The assignment by Landlord of the Lease and or the avails and proceeds thereof
made either with or without notice to the Guarantors shall in no manner
whatsoever release the Guarantors from any liability as Guarantors under the
Guaranty.