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, Macomb MI
48004 ((810) 919-5974), 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 Troy,
County of Oakland,
State of Michigan to wit: a store containing
approximately 2600 SF within and part of the 3872 Rochester
Road
Auto center containing
approximately 10,500
SF and is commonly
known as 3872 - 3878 Rochester Road.
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.
1
<PAGE>
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
abate 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.
2
<PAGE>
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 bill 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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<PAGE>
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, o
