Exhibit 10.45
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.
STANDARD LEASE AGREEMENT
(1) THIS LEASE made this 5th day of January 2003 by
and between CKS Investments, L.L.C., 21190 Vesper, ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ((▇▇▇) ▇▇▇-▇▇▇▇), the Lessor, herein after designated as
the Landlord, and All Night Auto, Inc., the Lessee, herein after
designated as the Tenant.
DESCRIPTION (2) Witnesseth: The Landlord, in consideration of
the rents to be paid and the covenants and agreements to be
performed by the Tenant, does hereby lease unto the Tenant the
following described premises situated in the City of ▇▇▇▇,
County of Oakland, State of Michigan to wit: a store containing
approximately 2600 SF within and part of the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Auto center containing approximately 10,500 SF and is commonly
known as 3872 - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
TERM (3) For the term of ten years (120 months) from and
after the first (1st) day of November, 2003 (Tenant to be given
possession January 15th, 2003), fully to be completed and ended,
the Tenant yielding and paying during the continuance of this
lease unto the Landlord for rent of said premises as follows:
RENT Month of Term Minimum Monthly Rental
1-12 [*] Plus CAM & Taxes
13-24 [*] Plus CAM & Taxes
25-36 [*] Plus CAM & Taxes
37-48 [*] Plus CAM & Taxes
49-60 [*] Plus CAM & Taxes
61-72 [*] Plus CAM & Taxes
73-84 [*] Plus CAM & Taxes
85-96 [*] Plus CAM & Taxes
97-108 [*] Plus CAM & Taxes
109-120 [*] Plus CAM & Taxes
in lawful money of the United States payable in monthly
installments in advance, upon the first (1st) day of each and
every month.
RENT (4) The Tenant hereby hires the said premises for
the said term as above mentioned and covenants well and truly to
pay, or cause to be paid unto the Landlord at the dates and
times above mentioned, the rent above reserved. Should the term
of this Lease commence on a day other than first day of a
calendar month, then the calculation of the term shall be deemed
to begin the first day of the following month, and the rental
for such month shall be prorated upon a daily basis, based upon
a thirty (30) day calendar month. Landlord hereby acknowledges
the receipt of [*] Dollars, which will be retained as a security
Deposit (see section P of attached rider).
INSURANCE (5) In addition to the rentals hereinbefore
specified, the Tenant agrees to pay as additional rental any
increase on premiums for insurance against loss by fire and
liability that may be charged during the term of this lease on
the amount of insurance now carried by the Landlord on the
premises and on the improvements situated on said premises,
resulting from the business carried on in the leased premises by
the Tenant or the character of its occupancy, whether or not the
Landlord has consented to the same.
(6) If the Tenant shall default in any payment or
expenditure other than rent required to be paid or expended by
the Tenant under the terms hereof, the Landlord may at his
option make such payment or expenditure, in which event the
amount thereof shall be payable as rental to the Landlord by the
Tenant on the next ensuing rent day together with interest at
the maximum rate per annum permitted by law from the date of
such payment or expenditure by the Landlord and on default in
such payment the Landlord shall have the same remedies as on
default in payment of rent.
(7) All payments of rent or other sums to be made to
the Landlord shall be made at such place as the Landlord shall
designate in writing from time to time and every payment
required to be made by Tenant under this lease shall be made
without any set-off or deduction whatsoever.
ASSIGNMENT (8) The Tenant covenants not to assign or transfer
this lease to hypothecate or mortgage the same or sublet said
premises or any part thereof without the written consent of the
Landlord. Any assignment, transfer, hypothecation, mortgage or
subletting without said written consent shall give the Landlord
the right to terminate this lease and to re-enter and repossess
the leased premises. Landlord agrees not to unreasonably
withhold consent reserving however, the right to determine the
conditions that shall be imposed with respect to same. Upon
Landlord's approval of any assignment, Tenant will be assessed
an assignment fee per occurrence equal to one (1) months then
current base rent, which shall be construed as additional
rental.
BANKRUPTCY (9) The tenant agrees that if the estate created
AND hereby shall be taken in execution, or by other process of law,
INSOLVENCY or if the Tenant shall be declared bankrupt or insolvent,
according to law, or any receiver be appointed for the business
and property of the Tenant, or if any assignment shall be made
of the Tenant's property for the benefit of creditors, than and
in such event this lease may be cancelled at the option of the
* Portions of this 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.
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Landlord. In the event of any bankruptcy by Tenant, Landlord
shall be entitled to reimbursement for all attorney fees and
cost incurred connection with such bankruptcy, whether the lease
is cancelled, assumed or assigned.
RIGHT TO (10) The Landlord reserves the right to subject and
MORTGAGE subordinate this lease at all times to the lien of any mortgage
or mortgages, now hereafter placed upon the Landlord's interest
in the said premises and on the land and buildings of which the
said premises are a part or upon any buildings hereafter placed
upon the land of which the leased premises form a part. And the
Tenant covenants and agrees to execute and deliver upon demand
such further instrument or instruments subordinating this lease
to the lien of any such mortgage or mortgages as shall be
desired by the Landlord and any mortgagees or proposed
mortgagees and hereby irrevocably appoints the Landlord the
attorney-in-fact of the Tenant execute and deliver any such
instrument or instruments for and in the name of the Tenant.
This clause shall be self-operative and no further instrument
required.
USE AND (11) It is understood and agreed between the parties
OCCUPANCY hereto that said premises during the continuance of this lease
shall be used and occupied for THE REPAIR OF AUTOMOBILES AND
LIGHT TRUCKS and for no other purpose or purposes without the
written consent of the Landlord, and that the Tenant will not
use the premises for any purpose in violation with any law,
municipal ordinance or regulation, and that on any breech of
this agreement the Landlord may at his option terminate this
lease forthwith and re-enter and repossess the leased premises.
Under no circumstances whatsoever may Tenant be permitted to
perform any service or sell any goods performed of sold by
another Tenant in the Shopping Center to assure a tenant mix and
avoid wasteful overlap of duplicate merchandise and services.
FIRE (12) It is understood and agreed that if the premises
hereby leased be damaged or destroyed in whole or in part by
fire or other casualty during the term hereof, the Landlord will
repair and restore the same to good tenantable condition with
reasonable dispatch, and that the rent herein provided for shall
▇▇▇▇▇ entirely in case the entire premises are untenantable and
pro rata for the portion rendered untenantable, in case a part
only is untenantable, until the same shall be restored to a
tenantable condition; provided, however, that if the Tenant
shall fail to adjust his own insurance or to remove his damaged
goods, wares, equipment or property within a reasonable time,
and as a result thereof the repairing and restoration is
delayed, there shall be no abatement of rental during which the
period of such resulting delay, and provided further that there
shall be no abatement of rental if such fire or other cause
damaging or destroying the leased premises shall result from the
negligence or willful act of the Tenant, his agents or
employees, and provided further that if the Tenant shall use any
part of the leased premises for storage during the period of
repair a reasonable charge shall be made therefor against the
Tenant, and provided further that in case the leased premises,
or the building of which they are a part, shall be destroyed to
the extent of more than one-half of the value thereof, the
Landlord may at his option terminate this lease forthwith by a
written notice to the Tenant. If the damage or destruction is
due to the fault or neglect of Tenant, the debris shall be
removed at the Tenant's expense.
REPAIRS (13) The Landlord after receiving written notice from
the Tenant and having reasonable opportunity thereafter to
obtain the necessary workmen therefor agrees to keep in good
order and repair the roof and the four outer walls of the
premises but not the doors, door frames, the window glass,
window casings, window frames, windows or any of the appliances
or appurtenances of said doors or window casings, window frames
and windows, or any attachment thereto or attachments to said
building or premises used in connection therewith. Nor any
repair including, but not limited to, the roof and four outer
walls of the premises necessitated by any vandalism or burglary.
INSURANCE And the Tenant agrees to keep the plate glass insured
with a responsible Insurance Company in the name of the Landlord
and to deliver the policy or policies to the Landlord and upon
his failure to do so the Landlord may place such insurance and
charge the same to the Tenant as so much additional rent as
provided in Paragraph 6; but the failure on the part of the
Landlord to place such insurance does not release the Tenant of
the liability. Tenant also agrees to carry fire insurance on the
contents, including improvements and business interruption
coverage.
TENANT TO (14) The Tenant agrees to indemnify and hold harmless
INDEMNIFY the Landlord from any liability for damages to any person or
property in, on or about said leased premises from any cause
whatsoever, and Tenant will procure and keep in effect during
the term hereof public liability and property damage insurance
for the benefit of the Landlord in the sum of One Million
($1,000,000.00) Dollars for damages resulting to one person and
One Million ($1,000,000.00) Dollars for damages resulting from
one casualty, and One Million ($1,000,000.00) Dollar property
damage insurance resulting from any one occurrence. Tenant shall
deliver said policies to the Landlord and upon Tenant's failure
so to do the Landlord may at his option obtain such insurance
and the cost thereof shall be paid as additional rent due and
payable upon the next ensuing rent day.
REPAIRS AND (15) Except as provided in Paragraph 13 hereof, the
ALTERATIONS Tenant further covenants and agrees that he will, at his own
expense, during the continuation of this lease, keep the said
premises and every part thereof including all electrical,
heating, cooling and plumbing in as good repair and at the
expiration of the term yield and deliver up the same in like
condition as when taken, reasonable use and wear thereof and
damage by the elements expected. The Tenant shall not make any
alterations, additions or improvements to said premises without
the Landlord's written consent, and all alterations, additions
or improvements made by either of the parties hereto upon the
premises, except moveable office furniture and trade fixtures
put in at the expense of the Tenant, shall be the property of
the Landlord, and shall remain upon and be surrendered with the
premises at the termination of this lease, without molestation
or injury. Tenant shall cause to be discharged of record any
liens that may be filed against the premises resulting from
Tenant.
The Tenant covenants and agrees that if the demised
premises consists of only a part of a structure owned or
controlled by the Landlord, the Landlord may enter the demised
premises at reasonable times and install or repair pipes, wires
and other appliances or make any repairs deemed by the Landlord
essential to the use and occupancy of other parts of the
Landlord's building.
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EMINENT (16) Eminent Domain - (Total Condemnation): If the
DOMAIN whole of the premises hereby leased shall be taken by any public
authority under the power of eminent domain, then the term of
this Lease shall cease as of the day possession shall be taken
by such public authority and the rent shall be paid up to that
day with a proportionate refund by the Landlord of such rent as
may have been paid in advance.
(Partial Condemnation): If less than the whole but more
than twenty (20%) percent of the leased premises shall be taken
under eminent domain, Tenant shall have the right to either
terminate this Lease and declare the same null and void, or,
continue in possession of the remainder of the leased premises,
and shall notify Landlord in writing prior to any such taking of
Tenant's intention. In the event Tenant elects to remain in
possession, all of the terms herein provided shall continue in
effect, except that the minimum rent shall be reduced in
proportion to the amount of the premises taken, and Landlord
shall, at its own cost and expense, make all necessary repairs
or alterations to the basic building, store front, so as to
constitute the remaining premises as a complete architectural
unit.
(Landlord's and Tenant's Damages): All damages awarded
for such taking under power of eminent domain, whether for a
whole or a part of the leased premises shall belong to and be
the property of Landlord whether such damages shall be awarded
as compensation for diminution in value to the leasehold or to
the fee of the premises; provided, however, that Landlord shall
not be entitled to the award made to Tenant for loss of
business, depreciation to, and cost of removal of stock and
fixtures.
RESERVATION (17) The Landlord reserves the right of free access
at all times to the roof of said leased premises and reserves
the right to rent said roof for advertising purposes. The Tenant
shall not erect any structures for storage or any aerial, or use
the roof for any purpose without the consent in writing of the
Landlord.
CARE OF (18) The Tenant shall not perform any acts or carry
PREMISES on any practices which may injure the building or be a nuisance
or menace to other Tenants in the building and shall keep
premises under his control (including adjoining drives, streets,
alleys or yard) clean and free from rubbish, dirt, snow and ice
at all times, and it is further agreed that in the event the
Tenant shall not comply with these provisions, the Landlord may
enter upon said premises and have rubbish, dirt and ashes
removed and the side walks cleaned, in which event the Tenant
agrees to pay all charges that the Landlord shall pay for
hauling rubbish, ashes and dirt, or cleaning walks. Said charges
shall be paid to the Landlord by the Tenant as soon as ▇▇▇▇ is
presented to him and the Landlord shall have the same remedy as
is provided in Paragraph 6 of this lease in the event of the
Tenant's failure to pay.
(19) the Tenant shall at his own expense under
penalty of forfeiture and damages promptly comply with all
lawful laws, orders, regulations or ordinances of all municipal,
County and State authorities affecting the premises hereby
leased and the cleanliness, safety, occupation and use of same.
Plumbing facilities shall be used only for the purposes for
which they were constructed, any breakage, stoppage and the
resultant repair cost shall be the responsibility of the Tenant.
CONDITION OF (20) The Tenant further acknowledges that he has
PREMISES AT examined the said leased premises prior to the making of knows
TIME OF LEASE the condition thereof, and that no representations as to the
condition or state of repairs thereof have been made by the
Landlord, or this lease, and his agent, which are not herein
expressed, and the Tenant hereby accepts the leased premises in
their present condition at the date of the execution of this
lease.
(21) The Landlord shall not be responsible or liable
to the Tenant for any loss or damage that may be occasioned by
or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connected
with the premises hereby leased or any part of the building of
which the leased premises are a part or for any loss or damage
resulting to the Tenant or his property from bursting, stoppage
or leaking of water, gas, sewer or steam pipes.
RE-RENTING (22) The Tenant hereby agrees that for a period
commencing 90 days prior to the termination of this lease, the
Landlord may show the premises to prospective Tenants, and 90
days prior to the termination of this lease, may display in and
about said premises and in the windows thereof, the usual and
ordinary "TO RENT" signs.
HOLDING OVER (23) It is hereby agreed that in the event of the
Tenant herein holding over after the termination of this lease,
thereafter the tenancy shall be from month to month in the
absence of a written agreement to the contrary and the base rent
due shall be increased to one hundred fifty (150%) percent of
the last monthly rental amount due prior to the expiration or
termination of the lease.
GAS, WATER, (24) the Tenant will pay all charges made against
HEAT, said leased premises for gas, water, heat and electricity during
ELECTRICITY the continuance of this lease, as the same shall become due,
commencing the date Landlord tenders possession to Tenant.
ADVERTISING (25) It is further agreed that all signs and
DISPLAY advertising displayed in and about the premises shall be such
only as advertise business carried on upon said premises, and
that the Landlord shall control the character and size thereof,
and that no sign shall be displayed excepting such as shall be
approved in writing by the Landlord, and that no awning shall be
installed or used on the exterior of said building unless
approved in writing by the landlord. Tenant further agrees to
maintain such sign, awning, canopy, decoration, lettering, or
other advertising matter as may be approved in good condition
and repair at all times.
ACCESS TO (26) The Landlord shall have the right to enter upon
PREMISES the leased premises at all reasonable hours for the purpose of
inspecting the same.
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PREMISES If the Landlord deems any repairs necessary he may demand that
the Tenant make the same and if the Tenant refuses or neglects
forthwith commence such repairs and complete the same with
reasonable dispatch the Landlord may make or cause to be made
such repairs and shall not be responsible to the Tenant for any
loss or damage that may accrue to his stock or business by
reason thereof, and if the Landlord makes or causes to be made
such repairs the Tenant agrees that he will forthwith on demand
pay to the Landlord the cost thereof with interest at 7% per
annum, and if he shall make default in such payment the Landlord
shall have the remedies provided in Paragraph 6 hereof.
RE-ENTRY (27) In case any rent shall be due and unpaid or if
default be made in any of the covenants herein contained, or if
said leased premises shall be deserted or vacated, then it shall
be lawful for the Landlord, his certain attorney, heirs,
representatives and assigns, to re-enter into, re-possess the
said premises and the Tenant and each and every occupant to
remove and put out, in accordance with procedures set forth by
law.
QUIET (28) The Landlord covenants that the said Tenant, on
ENJOYMENT payment of all the aforesaid installments and performing all the
covenants aforesaid, shall and may peacefully and quietly have,
hold and enjoy the said demised premises for the term aforesaid.
EXPENSES- (29) In the event that the Landlord shall, during the
DAMAGES period covered by this lease, obtain possession of said premises
RE-ENTRY by re-entry summary proceedings, or otherwise, the Tenant hereby
agrees to pay the Landlord the expense incurred in obtaining
possession of said premises and also all expenses and
commissions which may be paid in and about the letting of the
same, and all other damages, including legal fees and attorney
fees.
REMEDIES NOT (30) It is agreed that each and every of the rights,
EXCLUSIVE remedies and benefits provided by this lease shall be
cumulative, and shall not be exclusive of any other of said
rights, remedies and benefits, or of any other rights, remedies
and benefits allowed by law.
WAIVER (31) One or more waivers of any covenant or condition
by the Landlord shall not be construed as a waiver of a further
breach of the same covenant or condition.
DELAY OF (32) It is understood that if the Tenant shall be
POSSESSION unable to enter into and occupy the premises hereby leased at
the time above pro-vided, by reason of the said premises not
being ready for occupancy, or by reason of the holding over of
any previous occupant of said premises, or as a result of any
cause or reason beyond the direct control of the Landlord, the
Landlord shall not be liable in damages to the Tenant therefore,
but during the period the Tenant shall be unable to occupy said
premises as hereinbefore provided, the rental therefor shall be
abated and the Landlord is to be the sole judge as to when the
premises are ready for occupancy.
NOTICES (33) Whenever under this lease a provision is made
for notice of any kind it shall be deemed sufficient notice and
service thereof if such notice to the Tenant is in writing
addressed to the Tenant at his last known Post Office address or
at the leased premises and deposited in the mail with postage
prepaid and if such notice to the Landlord is in writing
addressed to the last known Post Office address of the Landlord
and deposited in the mail with postage prepaid. Notice need be
sent to only one Tenant or Landlord where the Tenant or Landlord
is more than on person.
(34) It is agreed that in this lease the word "he"
shall be used as synonymous with the words "she," "it" and
"they," and the word "his" synonymous with the words "her," its"
and "their."
(35) The covenants, conditions and agreements made
and entered into by the parties hereto are declared binding on
their respective heirs, successors, representatives and assigns.
(36) The preparation and submission of this lease to
Tenant does not constitute a reservation or option in favor of
the Tenant for the premises. This lease shall only become
binding as a lease upon the complete execution by both Landlord
and Tenant and delivery of a fully executed copy thereof to each
respective party.
ENVIRONMENTAL (37) Tenant represents, warrants and covenants that
the Premises shall not be used for the temporary or permanent
generation storage, treatment, manufacture, handling,
processing, disposal, release, or discharge of any toxic,
hazardous, industrial or chemical materials, substances, wastes
or pollutants, including but not limited to any substance,
materials, waste, contaminant or pollutant which is (i) subject
to regulation under any federal state, county, municipal and
other governmental laws, statutes, regulations, orders, permits,
decrees and ordinances ("Laws") from time to time in effect or
(ii) known to be a hazard to health, safety, property or the
environment (collectively "Hazardous Materials"), except in such
types of materials in such typical amounts as are reasonably
and customarily used or stored at similar Auto center buildings
in compliance with all applicable Laws (including without
limitation those related to the matters described in this
Section) and in a manner calculated to prevent damage to human
health, safety, welfare and the environment, and that the
Premises will be constructed, operated and maintained, and the
occupants of the Premises shall conduct their activities in the
Building in compliance with all Laws and in a manner calculated
to prevent damage to human health, safety, welfare and the
environment.
In no event shall Tenant dispose of, or permit the
disposal of, Hazardous Materials in, on or under the Premises or
property adjacent to the Premises and all Hazardous Materials
shall be removed from the Premises in the manner set forth
below. In no event shall tenant permit or cause a release of
Hazardous Materials at or from the Premises which is reportable
or cognizable under the Federal Comprehensive Environmental
Response Compensation and Liability Act (42 USCA 9601 ET SEQ.)
or any other Laws. Tenant shall not burn, or permit the burning
of any trash, garbage or Hazardous Materials at any time in or
about the Premises.
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Notwithstanding anything in this Lease to the contrary,
Tenant shall not store, or permit the storage of, waste
(whether otherwise) Hazardous Materials except as is customarily
used or stored at similar premises and auto centers, as in
non-leaking and ground containers, as is in compliance with
all applicable Laws, and as is stored in a manner calculated to
prevent damage to the safety, welfare and the environment, the
materials in which are removed from the Premises substantially
prior to the time Hazard non-hazardous substances or materials,
including but not limited to waste materials, nor permit such
activities, at the Premises. To introduce or permit the
introduction of any material except uncontaminated sanitary
sewage and uncontaminated wash waters in being recognized that
this provision shall not prevent ordinary and customary hand
washing within the Premises.
Tenant shall unconditionally indemnify, defend and hold
harmless Landlord, its employees, agents, partners, officers
from and against all claims, liabilities, damages, costs and
expenses, including reasonable attorney fees, fees of
environmental costs any clean-up costs, arising from any breach
of the foregoing representations, warranties and covenants or as
the result of the Hazardous Materials within, on or flowing from
the Premises.
IN WITNESS WHEREOF, The parties have hereunto set their
hands and seals the day and year first above written.
WITNESSED BY: LANDLORD
/s/ [illegible] BY: /s/ [illegible]
-------------------------
TENANT:
/s/ [illegible] BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
------------------------- Soc. Sec.:
Driver License No.:
BY:
------------------------- Soc. Sec.:
Driver License No.:
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RIDER ATTACHED TO AND MADE A PART OF
A CERTAIN LEASE BY AND BETWEEN
CKS INVESTMENTS LLC, AS LANDLORD
AND ALL NIGHT AUTO, INC., AS TENANT
CONCERNING LEASED PREMISES LOCATED
AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
A. EMPLOYEE PARKING - Regardless of any other clause recited in this Lease
Agreement, it is understood and agreed that Tenant may not solicit business
nor at any time engage in business at the herein demised premises, except
from within its leased premises. Therefore, Tenant and its employees may
not use any of the common areas of the Auto Center for any purpose except
for ingress or egress, and parking for themselves and Tenant's patrons and
invitees. Tenant agrees to cause Tenant, its employees and agents, to park
their cars only in areas specifically designated for that purpose so as not
to consume parking spaces adjacent to the retail stores, to assure that the
same will be available for retail patrons. In the event Tenant, its agents
or employees shall fail to park in spaces designated by Landlord, then in
such event, Tenant agrees to pay the Landlord, upon demand, the sum of Ten
Dollars ($10.00) per violation for each day. Tenant shall furnish the
Landlord, upon demand from time to time, a complete list of Tenant and
Tenant's employees and agents, and a complete description of their
automobiles and license plate numbers, to enable enforcement of the
foregoing provisions.
B. ACCORD AND SATISFACTION - No payment by Tenant or receipt by Landlord of a
lesser amount than the rent and other sums that shall become due and
payable under this Lease shall be deemed to be other than on account of the
earliest rent and/or other amounts due, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment
under this Lease be deemed to be in accord and satisfaction. Landlord shall
have the right to accept such check, regardless of such endorsement or
letter or other qualification, without regard to such endorsement or other
qualification and without prejudice to its right to recover the balance of
any amounts that shall be due under the terms of this Lease or pursue any
other remedy.
C. NON-WAIVER - No default in the payment of rent or any other amount required
to be paid under the terms of this Lease, or the failure of Landlord to
enforce the provisions of this Lease upon any default by Tenant shall be
construed as creating a custom of deferring payment or as in any way
modifying the terms and conditions of this Lease, or as a waiver of
Landlord's right to exercise any privilege given to the Landlord by law or
under the terms and conditions of this Lease. Landlord may not be deemed to
have waived any of Landlord's rights, except to the extent that the same
shall have been reduced to writing and signed by the Landlord, and such
waiver shall be limited to the terms of such writing. The parties declare
that time is of the essence with respect to the covenants under this Lease.
If any terms or provisions of this Lease or the application thereof to any
person or circumstance shall to any extent be declared by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of
this Lease shall not be affected thereby; and each of the remaining terms
and conditions of this Lease shall be valid and enforceable in accordance
with their terms to the fullest extent permitted by law.
D. WAIVER OF JURY TRIAL AND COUNTER CLAIM - Tenant hereby waives the right to
demand a jury in any litigation instituted by the Landlord in which
Landlord seeks to recover any rental obligations accruing under this Lease
Agreement. Tenant also agrees not to assert in any such action any set-off
or counterclaim to endeavor to avoid or defeat the Landlord's claim of
right to receive the rental obligations, interest, and other sums accruing
under this Lease. The foregoing waivers shall not affect Tenant's right to
make a demand for jury trial with respect to any litigation not related to
those matters above described nor shall it deprive Tenant of the right of
asserting any matter which may otherwise be the subject of a set-off or
counterclaim in a separate action. Any such separate action shall not be
consolidated into the Landlord's action to secure payment of the aforesaid
rental obligations.
E. DEFAULT - In the event Tenant fails to pay any rental obligations on or
before the date due with respect to monetary defaults, and with respect to
non-monetary defaults, shall fail to perform any of the other covenants of
this Lease Agreement and shall fail to rectify the same within seven (7)
days after written notice of such default has been given to Tenant, or
after any such monetary or non-monetary default shall have been cured and
shall re-occur within twelve (12) months of such default, then any
remaining renewal options shall be automatically canceled and any rental
abatement granted to Tenant shall be immediately due and payable. In
addition to the foregoing, Landlord shall have the right to re-enter the
premise through lawful means and remove Tenant from the leased premises,
with or without terminating this Lease at the exclusive option of Landlord.
In the event Landlord recovers possession of the premises as a result of
Tenant's default and does not elect to terminate this Lease, Landlord shall
have the right from time to time to make such repairs to the premises as
shall be determined necessary by Landlord and shall have the right to
re-let the same upon such terms and conditions as Landlord in its sole
discretion deems advisable without interference by Tenant; and upon such
re-letting, all rentals received by Landlord shall be applied first to
payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs and expenses of such
re-letting, including brokerage fees and attorney fees and of the costs of
alterations and repairs; third, to the payment of rent due and unpaid
hereunder, and the residue, if any, shall be held by the Landlord and
applied to payment of future rent as the same shall become due and payable
hereunder. If such rentals received from such re-letting during any month
be less than rentals payable for that month by Tenant hereunder, Tenant
shall pay any such deficiency to Landlord. Such deficiency shall be
calculated and be paid monthly. No such re-entry or taking possession of
said premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease, unless a written notice of such intention be
given to Tenant, or unless the termination hereof be declared by a court of
competent jurisdiction. Notwithstanding any such re-letting without
termination, Landlord may at any time thereafter elect to terminate this
Lease for any previous breach. Should Landlord at any time terminate this
Lease, or in lieu thereof re-enter and re-let the premises for any breach,
in addition to any other remedies it may have, it may recover
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from Tenant all damages it may incur by reasons of such breach, including,
but not limited to, the cost of recovering the Leased Premises, reasonable
attorney's fees, and including the worth at the time of such termination of
the excess, if any, of the amount of rent and charges equivalent to rent
reserved in this Lease for the remainder of the stated term, all of which
amounts shall be immediately due and payable from Tenant to Landlord.
F. REAL ESTATE TAXES - Tenant shall pay to Landlord as additional rent during
each lease year its Proportionate Share of the real property taxes and
assessments without limitation payable by Landlord during each lease year
with respect to the entire Shopping Center. In the event the State of
Michigan or any political subdivision thereof, or any governmental
authority having jurisdiction there-over, shall impose a tax and/or
assessment of any kind or nature upon, against or with respect to rentals
payable by Tenant to Landlord, or on the income of Landlord derived from
the Leased Premises (other than the current income or single business tax),
or with respect to the ownership, occupancy or rental of the land and
buildings comprising the leased Premises, either by way of substitution for
all or any part of the real estate taxes levied or assessed against such
land and buildings, or in addition thereto, such tax and/or assessment
shall be deemed to constitute a real estate tax against such land and such
buildings for the purpose of this clause.
Upon receipt of all tax bills and assessment bills attributable to any
calendar year during the term hereof, Landlord shall furnish tenant with a
written statement of the taxes and assessments for such year. In the event
no tax ▇▇▇▇ is available, Landlord will compute the amount of such tax.
G. COMMON AREA MAINTENANCE - Tenant agrees to pay Landlord in the manner
hereinafter provided Tenant's Proportionate Share of all cost and expenses
of every kind and nature paid or incurred by Landlord in operating,
equipping, policing and protecting, lighting, heating, air conditioning,
insuring, repairing, replacing and maintaining the (i) common areas and
(ii) all other areas, facilities and buildings used in the maintenance and
operation of the Shopping Center (hereinafter collectively referred to as
"common areas"), including the cost of insuring all property provided by
Landlord which may at any time comprise the Shopping Center. Such cost and
expenses shall include, but not be limited to, illumination and maintenance
of Shopping Center signs, whether located on or off the Shopping Center
site; cleaning, lighting, policing, snow removal, line painting,
maintenance replacement and repair of the roof and parking area, management
fee, rubbish removal, decorations, pest extermination, drainage,
landscaping; premiums for liability and property insurance; personal
property taxes; supplies and an amount equal to fifteen per cent (15%) of
the total of all of the foregoing costs and expenses to cover Landlord's
administrative costs.
H. INSURANCE - Supplementing paragraph (5) hereof, Tenant shall pay to
Landlord as additional rent during each year its Proportionate Share of the
cost of the general liability, boiler and machinery, excess liability, fire
and extended coverage insurance (including rental interruption insurance
and difference in conditions coverage, if any) on the full replacement
value of the buildings in the Shopping Center and all improvements thereon,
payable by Landlord in any lease year or portion thereof. Tenant's
obligations under this Section shall commence as of the date of Landlord's
delivery of possession of the leased premises to Tenant.
I. TENANT'S PROPORTIONATE SHARE - Whenever the phrase "Proportionate Share" is
used in this Lease, such phrase shall have the following meaning; Tenant's
"Proportionate Share" shall be equal to the product obtained by a fraction,
the numerator of which shall be the total number of square feet of first
floor area of the Leased Premises and the denominator the total number of
square feet of first floor area of leasable space in the Shopping Center.
Landlord shall have the option to exclude from the denominator any first
floor area of the leasable space of any portion of the Shopping Center and
any land and improvements appurtenant thereto, that may now or hereafter be
separately taxed, billed or assessed. Tenant's Proportionate Share for or
during the term hereof, as determined by Landlord, shall be paid in monthly
installments, on or before the first day of each calendar month, in
advance, in an amount estimated by Landlord; provided, that in the event
Landlord is required under any mortgage covering the Shopping Center to
escrow real estate taxes, Landlord may but shall not be obligated to, use
the amount required to be so escrowed as a basis for its estimate of the
monthly installments due from Tenant hereunder. Tenant's Proportionate
Share as herein above defined at the commencement date of said lease shall
be sixteen percent (25%).
J. CONSUMER PRICE INDEX ADJUSTMENT - N/A
K. LATE FEE - In the event the Tenant pays the rental due, after the fifth
(5th) day of the month when due, Tenant will be automatically assessed a
late charge of [*] of the amount due or [*] dollars, whichever is greater.
Such late charge shall be construed as additional rental.
L. OPERATING COVENANT - During the entirety of the Lease Term, Tenant
covenants to open for business to the public and operate the premises in a
first class manner with a full staff and full stock of current inventory
during all regular hours of the Auto Center as the same shall be
established by the Landlord.
M. HVAC MAINTENANCE - Tenant will hire a reputable company approved by
Landlord to inspect and perform maintenance and repairs on the heating and
air conditioning unit and system, semi-annually or more often if
necessary,. The filters shall be changed four (4) times per year in the
months of January, April July and October and evidence shall be furnished
satisfactory to landlord establishing that same have been changed. Landlord
may require that the filters be changed more often in the event Landlord
deems same necessary due to the nature of Tenant's business. In the event
Tenant fails to furnish written evidence that the filters have been changed
as required above within ten (10) days of the date that such changes are
required to have taken place, then Landlord may have the filters changed at
Tenant's expense and Tenant shall reimburse Landlord for the cost of same
as additional rent within ten (10) days of receipt of such invoice.
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N. PREMISES RESTORATION - Upon the expiration or earlier termination of the
Lease, Tenant shall remove such improvements, alterations and/??
modifications of the Premises as Landlord directs and restore the Premises
to "white box condition. All removal and restoration will leave the
Premises in good order and condition and ready to rent without any
uncorrected code violations caused by such removal and/or modification. All
debris will be hauled away by Tenant and the Premises will be left "broom
clean" and repainted. Tenant will continue to pay the monthly rent and
triple net charges until the entire restoration of the Premises is fully
completed and all keys to the Premises are returned to Landlord. In the
event Tenant shall fail to return the premises to the above mentioned
condition, Landlord may at his option make such repairs as deemed necessary
to return the premises to a ready to rent condition. All costs and expenses
incurred by Landlord for said restoration will be taken out of any
security deposit held under paragraph P of the Rider to Lease Agreement.
Any remaining deficiency shall be paid to Landlord within (10) days of
receipt of such invoice.
O. LANDLORD'S RIGHT TO RELOCATE TENANT - N/A
P. SECURITY DEPOSIT - The Landlord herewith acknowledges the receipt of $[*]
Dollars ($ [*]), which he is to retain as security for the faithful
performance of all the covenants, conditions, and agreements of this lease,
but in no event shall the Landlord be obliged to apply the same upon rents
or other charges in arrears or upon damages for the Tenant's failure to
perform the said covenants, conditions, and agreements; the Landlord may so
apply the security at his option; and the Landlord's right to the
possession of the premises for non-payment of rent or for any other reason
shall not in any event be affected by reason of the fact that the Landlord
holds this security. The said sum if not applied toward the payment of rent
in arrears or toward the payments of this lease is to be returned to the
Tenant when this lease is terminated, according to these terms, and in no
event is the said security to be returned until the Tenant has vacated the
premises and delivered possession to the Landlord.
In the event that the Landlord repossesses himself of the said premises
because of the Tenant's default or because of the Tenant's failure to carry
out the covenants, conditions, and agreements of this lease, the Landlord
may apply the said security upon all damages suffered to the date of said
repossession and may retain the said security to apply upon such damages as
may be suffered or shall accrue thereafter by reason of the Tenant's
default or breach. The Landlord shall not be obliged to keep the said
security as a separate fund, but may commingle the said security with his
own funds.
Q. SECURITY INTEREST - For valuable consideration and as security for payment
of rental and other payments required to be made by Tenant and the
obligations to be performed by Tenant under this Lease, Tenant hereby
grants to Landlord a security interest in Tenant's merchandise, inventory,
trade fixtures and Tenant's other equipment, fixtures and personal property
now or hereafter placed in the Leased Premises and all Tenant's future
accounts receivable generated by Tenant's business in the Leased Premises
during the Lease Term and all renewals and extensions thereof. The security
interests hereby created shall extend to the proceeds of any of the
above-described collateral.
The security interests granted Landlord hereby are and shall be subordinate
to any bona fide perfected purchase money security interest that Tenant may
wish to create and to any bona fide perfected security interest granted by
Tenant to any institutional lender financing the purchase of said
collateral. Tenant covenants to create no other security interests in said
collateral except as aforesaid, and Tenant further covenants not to remove
any of its trade fixtures or other property covered by this security
agreement from the Leased Premises, without the prior written consent of
Landlord.
Upon the happening of any of the following events or conditions, namely:
(a) an event of default; (b) the placing of any levy, lein, seizure or
attachment of the collateral; (c) death, dissolution, termination of
existence, insolvency, business failure, appointment of a receiver of any
part of the property of, assignment for the benefit of creditors by, or the
commencement of any proceeding under any bankruptcy or insolvency laws by
or against, Tenant or any guarantor or surety for Tenant; thereupon, or at
any time thereafter (such default not having previously been cured),
Landlord shall have the remedies of a secured party under the laws of the
State of Michigan, including, without limitation, the right to take
possession of the collateral, and for that purpose Landlord may enter upon
the Leased Premises and remove said collateral therefrom. Landlord shall
give Tenant at least ten (10) days prior written notice of any public sale
therefore or the date after which any private or any other intended
disposition is to be made, and at any such sale Landlord may purchase the
collateral.
Contemporaneous with the execution of this Lease, and at such other times
as Landlord may request, Tenant agrees to execute and deliver to Landlord
financing statements and such other documents as may be required to perfect
the security interest of Landlord grantee therein.
The security agreement and the security interests in the collateral created
hereby shall be terminated when, but not before, all of the rent and other
payments and all obligations of Tenant becoming due during the Lease Term,
and all renewals or extensions thereof, shall have been fully paid and
performed.
R. LIABILITY OF LANDLORD - If Landlord shall fail to perform any covenant,
term or condition of this lease upon Landlord's part to be performed, and
if as a consequence of such default Tenant shall recover a money judgement
against Landlord, such judgment shall be satisfied only out of the proceeds
of sale received upon execution of such judgment and levied thereon against
the right, title and interest of Landlord in the Shopping Center Site and
out of rents or other income from such property receivable by Landlord, and
neither Landlord nor any of the co-partners comprising the partnership
which is the Landlord herein shall be liable for any deficiency.
S. FURNISHING OF FINANCIAL STATEMENT - Upon Landlord's written request, Tenant
shall promptly furnish Landlord, certified financial statements
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reflecting Tenant's current financial condition including a current balance
sheet and income statement.
T. MISCELLANEOUS CONDITIONS:
(1) Tenant acknowledges that it is leasing shell space and agrees to accept
the same in "as is" condition, WITH THE EXCEPTION OF THE REMAINING SPECIFIC
TERMS AND CONDITIONS OF THIS PARAGRAPH. Landlord shall not be required to
perform any work with respect to the premises, EXCEPT AS IS SPECIFICALLY
OUTLINED IN EXHIBIT "A" ATTACHED HERETO AND DESCRIBED AS LANDLORD'S WORK.
Any work that Tenant may require, or deem desirable with respect to the
premises, shall be first presented to Landlord in the form of plans and
specifications requiring Landlord's prior written approval. Such plans and
specifications shall be prepared by Tenant and by Tenant delivered to
Landlord not later than fifteen (15) days following the date of Landlord's
execution of this lease. Landlord is not to unreasonably withhold its
consent. The Landlord's position shall be stated to Tenant in writing,
whereupon Tenant's work shall be completed in accordance with the plans and
specifications by Tenant at Tenant's sole cost, using reputable contractors
and materials complying at all times with the code and regulations of the
governmental agencies having jurisdiction over the property.
(2) Tenant shall not erect or install any exterior or interior window or
door signs or advertising media or window or door lettering, or placards,
without the previous written consent of Landlord. Tenant agrees not to use
any advertising media that shall be deemed objectionable to Landlord or
other Tenants, such as loud speakers, phonographs or radio broadcasts in a
manner to be heard outside of the leased premises. Tenant shall not install
any exterior decorations or painting, or build any fences or make any
changes to the store front without the previous consent of Landlord.
Simultaneous with Tenant's delivery of its plans and specifications under
paragraph (1) hereof, Tenant shall submit to Landlord Tenant's written
detail for the completion of its store front sign for Landlord's approval.
The store front sign in all respects shall conform to the detail and
specifications of Exhibit "B" attached hereto and by this reference made a
part hereof. Tenant shall, within thirty (30) days of Landlord's written
approval of Tenant's plans for completion of its store front, in all
respects complete the installation of Tenant's store front sign. Landlord
shall have the right, but no the obligation, to complete Tenant's store
front sign and the cost to Landlord for completion of such sign shall
become additional rent, payable within ten (10) days of Landlord's billing
of the same to Tenant.
(3) Landlord retains the exclusive right to add, delete and otherwise alter
the Auto Center buildings, common areas, and the land (including any
additions or deletions thereto made hereafter by Landlord) which now and
hereafter may be by Landlord made a part of the Auto Center. Landlord
agrees that the privileges herein by Landlord retained shall be exercised
in such a manner as to avoid unreasonable interference with the conduct of
Tenant's business.
(4) If Tenant is given possession of the leased premises prior to the
commencement of the term hereof, such possession shall be for the purpose
of enabling Tenant to ready the premises for the conduct of its business.
All of the terms and conditions of this Lease, with the exception of
minimum rent, real estate taxes and common area maintenance, shall be fully
applicable during such period of possession prior to commencement of the
term. In the event tenant shall commence to conduct any business prior to
the date of commencement of the term, then on such prior date, Tenant
shall, beginning such date, commence to pay minimum rent, real estate taxes
and common area maintenance expenses pro-rated on a daily basis from the
date Tenant shall commence to conduct business to the date of commencement
of the term hereof.
(5) No electric wires, telegraphs, call boxes or other electric apparatus
shall be installed in the leased premises except on the prior written
approval of the Landlord; and if such written approval is obtained from the
Landlord, the installation shall be under the direct supervision of
Landlord. Any such installation that may be made by Tenant, notwithstanding
the same being a default under this Lease Agreement, shall be removable by
the Landlord at the expense of Tenant.
(6) Landlord reserves the right from time to time to establish, modify,
delete and administer rules and regulations applicable to the Auto Center
and the herein demised leased premises. Notice of such rules and
regulations, modifications, additions or deletions thereto, if any, shall
be in writing and communicated to the Tenant. Tenant shall comply with all
of such rules and regulations, with the understanding that such rules and
regulations shall be non-discriminatory and apply uniformly to all tenants.
(7) The parties hereto declare that this writing contains the entire
understanding between the parties hereto in relation to this transaction.
No representations nor warranties have been made by Landlord, except to the
extent that the same are expressly contained within the terms of this
writing. No modifications shall be of any force or effect whatsoever unless
and until reduced to writing and signed by the respective parties hereto.
U. The Tenant shall not record his Lease without the written consent of
Landlord; however, upon the request of either party hereto, the other party
shall join in the execution of a memorandum, or so-called "short-form" of
Lease for the purpose of recordation.
V. Tenant agrees within ten (10) days after request therefore by Landlord to
execute in recordable form and deliver to Landlord a written statement
certifying:
(1) That this Lease is in full force and effect.
(2) Commencement date of the term.
(3) That rent is paid currently without any offset or defense thereto.
(4) The amount of rent, if any, paid in advance.
(5) That there are no uncured defaults by Landlord or stating those claimed
by Tenant if such facts are accurate and ascertainable.
(6) Other such related facts and terms or conditions as may be needed from
time to time by Landlord or its Mortgagee. Tenant hereby
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irrevocably appoints Landlord its attorney-in-fact to execute such a
writing in the event Tenant shall fail to do so within ten (10) days of
landlord's request.
W. Utility costs will be assessed based on square footage in relation to the
building as a whole.
X. Parking will be allocated based on square footage and no overnight parking
will be allowed.
WITNESSED BY: LANDLORD:
/s/ [illegible] BY: /s/ [illegible]
---------------------------
--------------------------- ITS: [illegible]
/s/ [illegible] TENANT:
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
--------------------------- BY:
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EXHIBIT "A"
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EXHIBIT "B"
SIGN SPECIFICATION
------------------
1. Since a variety of well-designed signs coordinated with storefront
design is essential to the overall concept of the shopping center, the
design, size, materials and locations of all signs must be approved by
the Landlord and his decision in such matters shall be final. Tenant
shall submit drawings for written approval to Landlord prior to Tenant's
installation of any sign.
2. Tenant may have its business name, address and store hours applied to
the front and service doors, as applicable, using professionally and
individually vinyl die cut letters, white, Helvetica style letter not to
exceed 2-1/2 inches in height. No other type of signage will be
permitted for this purpose.
3. Plastic "open and closed" signs, changeable boards or window stickers to
this effect are not permitted. See item "B" for store hour signage.
4. Visa, MasterCard and all other credit card or club stickers may be
placed on the lower left portion of the front door. The size of such
stickers is subject to the Landlord's approval.
5. Security stickers, alarm system notifications or similar notices may be
placed at the bottom center portion of the front door. The size of such
stickers is subject to the Landlord's approval.
6. Neon mansard sign or window treatments of any sort become the property
of the Landlord when they are installed, and should be left with the
premises.
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EXHIBIT "F"
GUARANTY
--------
To induce CKS INVESTMENTS LLC ("Landlord"), to enter into the Lease with
ALL NIGHT AUTO, INC. ("Tenant") dated January 1, 2003 ("Lease"), guarantee the
payment to Landlord of all sums presently due and all sums which shall in the
future become due and owing to Landlord from Tenant whether under the Lease or
any other agreement. Guarantor(s) also guarantee the due performance by tenant
of all of its obligations under the Lease, and all other present and future
agreements with Landlord.
Guarantor(s) also agree that: (1) Landlord may collect on this Guarantee
without first seeking to collect from Tenant; (2) to indemnify and hold Landlord
harmless against al obligations, demands and liabilities by whomsoever asserted,
and against all losses suffered, incurred or paid by Landlord in any way arising
out of, or consequential to transactions with Tenant; (3) this Guarantee shall
not be impaired by any amendment of the Lease or any other subsequent agreement
between Landlord and Tenant or Landlord and Guarantor(s); (4) no modifications
or release of any obligations guaranteed by Guarantor(s) or any security given
to Landlord shall release Guarantors' obligation under this Guarantee; (5)
Guarantor(s) shall be liable for all of Landlord's attorney's fees and costs
relating to enforcement of this Guarantee; (6) Guarantors' liability under this
Guarantee is unconditional and may be enforced without requiring Landlord first
to resort to any other right, remedy or security; (7) until all of Tenant's
obligations to Landlord have been paid in full, Guarantor(s) shall have no right
of subrogation, reimbursement or indemnity against Tenant; (8) no setoffs or
counterclaims of Guarantor(s) against Landlord shall impair Landlord's rights
against Guarantor(s) or Tenant and Guarantor(s) waive any such setoffs or
counterclaims in any proceedings to enforce this Guarantee; (9) Guarantor(s)
waive any right to notice of or to object to the commercial reasonableness of
the disposition of any security which Landlord may hold from Tenant.
Guarantor(s) further agree that: (10) if Tenant or Guarantor(s) shall
ever become insolvent, make an assignment for the benefit of creditors, or if a
petition in bankruptcy or any insolvency or reorganization proceeding shall be
filed or commenced by, against or in respect of Tenant or Guarantor(s), such
action shall not release this Guarantee and all obligations shall become due and
payable without notice; (11) Landlord's account records shall be binding upon
Guarantor(s) for the purpose of establishing the debts and obligations due from
Tenant and shall constitute prima facie proof of the obligations of Tenant to
Landlord; (12) this Guarantee may not be terminated if any obligations to
landlord remain outstanding; (13) nothing shall discharge or satisfy the
liability of Guarantor(s) except the full payment and performance of all
Tenant's debts and obligations to Landlord with interest and reasonable costs of
collection; (14) any and all present and future debts and obligations of Tenant
to Guarantor(s) are hereby waived and subordinated to the full payment and
performance of all present and future debts and obligations of Tenant to
Landlord; and (15) all funds or other property Guarantor(s) in Landlord's
possession may be held by landlord as security for any and all of Guarantors'
obligations to Landlord.
Guarantor(s) waive notice of acceptance of this Guarantee by Landlord,
presentment and protest of any instrument, notice of default, and all other
notices to which Guarantor(s) might otherwise be entitled. Guarantor(s) and
Landlord each irrevocably waive all rights to trial by jury in any action
involving this Guarantee.
THIS GUARANTEE IS FREELY AND VOLUNTARILY GIVEN TO LANDLORD BY THE
UNDERSIGNED WITHOUT ANY DURESS OR COERCION, AND AFTER GUARANTORS HAVE EITHER
CONSULTED WITH AN ATTORNEY OR BEEN GIVEN AN OPORTUNITY TO DO SO. GUARANTORS HAVE
CAREFULLY AND COMPLETELY READ AL OF THE TERMS AND PROVISIONS OF THIS GUARANTEE.
This Guarantee, shall be governed and interpreted according to the laws
of the State of Michigan and shall be binding upon Guarantors' heirs, executors,
personal representatives, administrators, successors and assigns and shall inure
to the benefit of landlord's successors and assigns.
Dated: JANUARY 1, 2003
Witness GUARANTOR:
-------------------------------------
------------------------------------- Address
Soc. Sec:
Drivers
License No:
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