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AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE (hereinafter "Amendment") is made as of this
22nd day of November, 1993, by and between Combined Properties Limited
Partnership, successor-in-interest to Combined Properties Virginia Plaza
Limited Partnership (hereinafter "Lessor") and Super Trak Corporation,
successor-in-interest to Trak Auto East Corporation (hereinafter "Lessee").
WHEREAS, by Lease Agreement dated April 24, 1984 (hereinafter referred
to as "Lease"), Lessor leased to Lessee certain premises in the Plaza at
Landmark Shopping Center (hereinafter "Shopping Center"), located in
Alexandria, Virginia, known as Store No. 18B and having an address of 6240-B
Little River Turnpike, Alexandria, Virginia 22312 (hereinafter "Premises"),
the Premises more particularly described in the Lease, upon the terms,
conditions, covenants and agreements contained in the Lease; and
WHEREAS, the Lessor and Lessee have agreed to relocate the Premises to
Store No. 37 in the Plaza at Landmark Shopping Center also known as 6198-F
Little River Turnpike (the "Relocation Premises") in accordance with the terms
and conditions of the Lease and this Amendment; and
WHEREAS, the parties desire to amend the Lease as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto intending to be
legally bound, hereby agree that the Lease is hereby amended, effective as of
the date hereof, as follows:
FIRST: It is agreed that the Relocation Premises shall be located in
the area cross-hatched in "red" on Schedule "A-1" hereto and the parties hereto
covenant and agree as of the Effective Date (hereinafter defined) that all
provisions of the Lease which refer to the Premises and all provisions in this
Amendment of Lease referring to the "Relocation Premises" shall be deemed to
refer to the area cross-hatched in "red" on Schedule "A-1" hereto and that as
of said date, Schedule "A" of the Lease shall be deleted in its entirety and
Schedule "A-1" attached hereto and by this reference made a part hereof shall
be substituted in lieu thereof and all references in the Lease to Schedule "A"
shall be deemed to refer to Schedule "A-1" hereto.
SECOND: From and after the Effective Date (hereinafter defined), for
the purposes of the Lease and all provisions thereof, including but not limited
to, those provisions related to the computation of Lessee's Minimum Guaranteed
Rent, Lessee's contribution toward Real Estate Taxes, and Lessee's Common Area
Minimum Contribution and pro-rata share of Shopping Center's Common Areas
Operating Cost, the square footage contained within the Premises shall be 7,958
square feet.
THIRD: Effective as of the earlier to occur of (i) the one hundred
twenty-first (121st) day following the date Lessor delivers possession of the
Relocation Premises to Lessee or (ii) the date Lessee opens for business in the
Relocation Premises (the "Effective Date") the following provisions shall be in
full force and effect:
1. The Premises described and referred to on the top portion of page
1 of the Lease as containing approximately 5,440 square feet and having
dimensions of 34' frontage and 160' depth, situated in Fairfax County,
Virginia, known as 6240 Little River Turnpike, Alexandria, Virginia 22312
shall be deemed to refer, and shall be changed, to:
Premises: Plaza at Landmark Shopping Center
Store No. 37, containing approximately 7,958
square feet and having dimensions of 46'
frontage and 173' depth, situated in Fairfax
County, Virginia, known as 6198-F Little River
Turnpike, Alexandria, Virginia 22312
2. Paragraph 3 of Article I of the Lease shall be deleted in its
entirety and replaced by the following:
The term of this Lease shall, except as hereinafter
provided, end at midnight on the last day of the one
hundred twentieth (120th) full calendar month
following the Effective Date unless that date falls
within the months of October, November or December,
in which event the term shall end on the next
succeeding January 31st.
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3. Paragraph 1(a), 1(b) and 1(c) of Schedule "C" of the Lease shall
be deleted in their entirety and replaced by the following:
(a) It is agreed that commencing on the Effective
Date and continuing through the last day of
the twelfth (12th) full calendar month
following the Effective Date, Lessee shall
pay Lessor an annual minimum fixed rent of
ONE HUNDRED THIRTY SEVEN THOUSAND TWO HUNDRED
SEVENTY FIVE AND 50/100 DOLLARS
($137,275.50), payable in monthly
installments of ELEVEN THOUSAND FOUR HUNDRED
THIRTY NINE AND 63/100 DOLLARS ($11,439.63),
payable, in advance, on or before the first
day of each full calendar month.
(b) Commencing as of the first (1st) day of the
calendar month following the expiration of
twelve (12) full calendar months after the
Effective Date and thereafter as of each
fifth (5th) anniversary of said day
throughout the lease term and option term(s),
if any (said day and each fifth (5th)
anniversary thereof being a "date of
adjustment"), the minimum fixed rent shall be
increased by fifteen percent (15%) of the
minimum fixed rent payable in the immediately
preceding twelve (12) month period.
4. Lessee's minimum contribution toward the shopping center's common
areas operating cost set forth in Paragraph 9 of Schedule "C" of the Lease
shall be the sum of SEVENTEEN THOUSAND FIVE HUNDRED SEVEN AND 60/100 DOLLARS
($17,507.60) each lease year, payable in equal monthly installments of ONE
THOUSAND FOUR HUNDRED FIFTY EIGHT AND 97/100 DOLLARS ($1,458.97). Lessee's
minimum contribution toward shopping center's common areas operating cost shall
continue to be subject to adjustment as set forth in Paragraph 9(d) of Schedule
"C" of the Lease and Lessee shall continue to be responsible for paying
Lessee's proportionate share of excess costs or increases above Lessee's
minimum contribution in accordance with Paragraph 9(d) of Schedule "C" of the
Lease.
5. Lessee's contribution toward real estate taxes on the Premises set
forth in Paragraph 4 of Schedule "C" of the Lease shall be the sum of SIX
THOUSAND SIX HUNDRED FIVE AND 14/100 DOLLARS ($6,605.14) each lease year,
payable in equal monthly installments of FIVE HUNDRED FIFTY AND 43/100 DOLLARS
($550.43). Lessee's contribution toward real estate taxes on the Premises
shall be subject to further adjustment in accordance with Paragraph 4 of
Schedule "C" of the Lease.
6. Lessee's monthly management and administrative fee set forth
in Paragraph 9(c) of Schedule "C" of the Lease shall be the sum of TWO HUNDRED
TWENTY EIGHT AND 79/100 DOLLARS ($228.79), subject to adjustment in accordance
with the provisions of Paragraph 9(a) of Schedule "C" of the Lease.
7. Paragraph 7 of Article II of the Lease is hereby deleted in
its entirety and replaced by the following:
7. Payments of rental hereunder are to be made
to Combined Properties Limited Partnership c/o Combined
Properties Incorporated, P.O. Box 2753, Merrifield, Virginia
22116 or to such other person or corporation and at such other
place as shall be designated in writing by notice given as
provided in Article XX of this Lease on the first day of each
month during the term.
8. The following provision shall be added to the Lease as a new
Article XV.
ARTICLE XV: EXTENSION
The Lessee shall have the option to extend the term
of this Lease for two (2) additional five (5) year
periods under the same terms and conditions called
for herein except that during the option term(s), if
any, Lessee shall pay to Lessor annual minimum fixed
rent in accordance with Article II hereof.
Said option to be exercised at least six (6) months
prior to the expiration date hereof by written notice
sent certified or registered mail to Lessor,
provided, however, that in the event that Lessee
fails to given such notice
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of extension, Lessee shall not be deemed to have
waived the right to that extension or any extension
thereafter until Lessor gives Lessee written notice
of Lessee's failure to exercise such right of
extension and affords Lessee a period of ten (10)
days after receipt of such notice to exercise that
right of extension by giving Lessor written notice
thereof.
9. The following provision shall be added to the Lease as a new
subparagraph "(D)" of Paragraph 15 of Schedule "C" to the Lease.
(D) Notwithstanding anything to the contrary contained in
this Lease Agreement (including Exhibits), Lessor shall have the
absolute unilateral right to terminate this Lease Agreement effective
at any time on or after December 31, 2007 upon giving at least one (1)
year prior written notice.
FOURTH: The parties acknowledge and agree that in the event the
Effective Date occurs on a day other than the first calendar day of a month,
Lessee's minimum fixed rent, Lessee's minimum contribution and pro-rata share
of shopping center's common areas operating cost, Lessee's contribution toward
real estate taxes, and Lessee's management and administrative fee shall be
subject to appropriate proration.
FIFTH: Lessee agrees to accept the Relocation Premises on an "as is"
basis and that any and all repairs, improvements, installations or additions
necessary or required for Lessee to open for business and conduct its business
from the Relocation Premises shall be at the sole cost and expense of Lessee.
SIXTH: As of the day prior to the Effective Date, Lessee and any
subtenants, concessionaires or others shall quit, surrender and vacate Store
No. 18B in accordance with the provisions of Paragraph 8 of Article VIII of the
Lease. In the event Lessee fails to vacate Store No. 18B as required by the
provisions of this Paragraph SIXTH, then as of the Effective Date through the
date Lessee vacates Store No. 18B Lessee's obligations to pay minimum fixed
rent and other charges under the Lease for Store No. 18B shall resume and
Lessee's obligations for rent and other charges for the Relocation Premises
shall continue to be governed by the provisions of Paragraph THIRD hereinabove.
SEVENTH: Lessee agrees, that upon Lessor's delivery of possession of
the Relocation Premises to Lessee, Lessee, on behalf of Lessor at Lessee's
expense, shall proceed to perform such construction in the Relocation Premises
as may be necessary to finish the Relocation Premises with an interior decor
package comparable to and consistent with the latest Super Trak retail store
prototype, the same to be constructed of good quality materials and installed
in a professional workmanlike condition.
EIGHTH: Lessor agrees that in consideration of the Lessee's agreeing
to accept the Relocation Premises in an "as is" condition and Lessee's agreeing
to perform all Lessee Improvements pursuant to Paragraph Seventh of this
Amendment and provided Lessee (a) has completed said Lessee Improvements in
accordance with the terms of Paragraph Seventh of this Amendment; (b) has
provided Lessor with reasonably appropriate affidavits, lien waivers and the
like showing that liens and encumbrances effected by Lessee's Improvements have
been released; (c) has obtained a certificate of occupancy or non-residential
use permit for the Relocation Premises and furnished a copy of the same to
Lessor; (d) has opened its store for business from the Relocation Premises in
accordance with the terms of this Amendment; and (e) has performed all of its
obligations under the provisions of this Amendment required of it to be
performed and is not then in default of the Lease beyond any applicable cure
period, then Lessor shall provide Super Trak Corporation with a credit in the
amount of NINETY FIVE THOUSAND FOUR HUNDRED NINETY SIX AND 00/100 DOLLARS
($95,496.00), said amount to be credited to the rental account of Super Trak
Corporation for the Premises by amortizing the same, dollar for dollar, only
out of those payments of minimum fixed rent becoming due from Lessee under the
terms of the Lease after the date Lessee has satisfied the conditions set forth
in (a) through (e) of this Paragraph EIGHTH.
NINTH: Lessee understands and agrees that the Relocation Premises is
presently occupied by an existing tenant. Accordingly, immediately following
full execution of this Amendment of Lease by the parties hereto, Lessor agrees
to use best efforts to negotiate or obtain a termination of the existing
tenant's right to occupy the Relocation Premises as soon as possible. After
said existing tenant's rights to occupy the Relocation Premises have been
terminated, Lessor shall make the same available to the Lessee as called for
herein. In the event Lessor is unable to obtain possession of the Relocation
Premises within twenty-four (24) months from the date of execution of this
Amendment of Lease, either party shall, at any time following said twenty-four
(24) month period, have the right to declare this Amendment of Lease null and
void, upon written notice to the other without any liability whatsoever and
thereafter this Amendment of Lease shall have no further force and effect.
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TENTH: Lessor and Lessee hereby acknowledge and agree that all
references to "Premises" or "Store No. 18B" in the Lease (including Exhibits
thereto) shall be deemed to refer to and are hereby changed to "Store No. 37".
ELEVENTH: The terms and provisions of the Lease are and shall remain
in full force and effect, with the exception that all of the terms and
provisions of the Lease which are inconsistent with the terms of this Amendment
shall automatically be modified and amended to conform to the terms hereof.
The parties hereto agree that this Amendment embodies the entire agreement and
understanding of the parties hereto in respect to the subject matter contained
herein and supersedes any and all prior agreements and understandings between
the parties with respect to such matters.
TWELFTH: All the rights and obligations of the parties under this
Amendment of Lease shall bind and inure to the benefit of their respective
heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed on the date first above written.
WITNESS: LESSOR:
COMBINED PROPERTIES LIMITED
PARTNERSHIP
THOMAS B. MCKEE By: RONALD S. HAFT
- - -------------------------------- ---------------------------- (Seal)
Ronald S. Haft
General Partner
ATTEST: LESSEE:
SUPER TRAK CORPORATION
By: /S/ R. KEITH GREEN
- - --------------------------------- ------------------------------
Its: President
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SCHEDULE A-1
Attached to and forming a part of that certain Indenture of Lease and
Memorandum of Lease executed under date of April 24, 1984 by and between
COMBINED PROPERTIES LIMITED PARTNERSHIP, Lessor, and Super Trak Corporation, as
Lessee,
DESCRIPTION OF PROPERTY
1. LESSOR'S PROPERTY. The demised premises are a portion of Lessor's
entire property, situated in the County of Fairfax, State of Virginia, and now
commonly known as 6198-F Little River Turnpike, Alexandria, Virginia 22312.
Such property, herein referred to as "Lessor's Property", means substantially
the entire property within the outer property limits shown on the Plot Plan
initialed by the parties hereto, dated April 19, 1984, attached hereto and made
a part hereof.
2. BUILDING. Lessor's Property provides a site for a store building
in the location designated "Trak Auto" on the said Plot Plan attached. Such
building is now thereon, or is to be erected pursuant to Schedule ?8 hereof by
Lessor for Lessee, containing 7,958 square feet and having dimensions of
approximately 46' x 173'. Said building site, building, improvements, and
appurtenances, and fixtures and equipment owned by the Lessor, now hereafter
located thereon are collectively referred to in this Lease as the "premises" or
"demised premises."
3. PARKING. Lessee, its agents, employees, patrons and invitees, in
common with Lessor and all other tenants of portions of Lessor's Property and
their respective agents, employees, patrons, and invitees shall have and are
hereby granted, during the entire term of this Lease and any extension thereof,
the free, uninterrupted, and non-exclusive use of the sidewalks, malls,
roadways, parking areas, and all other common areas, which use by all users
shall be for the purposes of ingress, egress, service, utilities, and parking,
and which parking area shall consist of not less than 900 automobile spaces.
It is specifically understood and agreed that Lessee shall have no obligation
whatsoever in connection with the ownership, maintenance, or management of the
malls, roadways, parking area, or other common areas involved, and that Lessor
shall manage, operate, and maintain all such common areas, or cause the same to
be done on its behalf, at no additional cost to Lessee, subject to Article XIX
of the Lease.
4. PLOT PLAN. SEE SCHEDULE C, PARAGRAPH 11.
5. COVENANTS. All of the covenants of the Lessor contained in this
Lease shall be covenants running with the land pursuant to applicable law. It
is expressly agreed that each covenant to do or refrain from doing some act on
the Lessor's Property or any part thereof (a) is for the benefit of the demised
premises and each person having any leasehold interest therein derived through
the Lessee, and (b) shall be binding upon each successive owner, during his
ownership, of any portion of the land affected thereby and each person having
any interest therein derived through any owner of the land affected hereby.
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[PLAZA AT LANDMARK, ALEXANDRIA, VA MAP -- SEE EDGAR APPENDIX]