Exhibit 10.24
AMENDMENT TO ALL CSK AUTO LEASES AT MISSOURI FALLS
AMENDMENT TO ALL CSK AUTO LEASES AT MISSOURI FALLS (this "Amendment"),
dated as of December 6, 2001, between MISSOURI FALLS PARTNERS, an Arizona
partnership ("MFP") and MFP HOLDINGS, LLC, a Delaware limited liability company
("MFPHLLC"; MFP and MFPHLLC each being a "Landlord" and collectively are
"Landlords") each with an address c/o Missouri Falls Holdings, Inc., ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and CSK AUTO, INC., an Arizona
corporation ("Tenant") with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, MFP and MFPHLLC, as applicable, as landlord, and Tenant, as
tenant, are currently the landlord and tenant, respectively, under the following
leases (as the same may have been amended, modified, assigned, assumed and/or
restated from time to time, each an "Existing Lease" and collectively the
"Existing Leases"): (a) Amended and Restated Lease, dated May ___, 1989, between
Missouri Falls Associates Limited Partnership, as landlord, and Northern
Automotive Corporation, as tenant, for Suites 190, 200, 300 and 400 of the
Building, as amended by (i) Agreement, dated January ___, 1990, between Missouri
Falls Associates Limited Partnership, as landlord, and Northern Automotive
Corporation, as tenant, (ii) First Amendment to Amended and Restated Lease,
dated November 22, 1991, effective January 1, 1991, between Spectrum Properties
Incorporated, as landlord, as successor to Missouri Falls Associates Limited
Partnership, and Northern Automotive Corporation, as tenant, and (iii) Amendment
to Leases, dated October 30, 1996, between Missouri Falls Associates Limited
Partnership, as landlord, and Northern Automotive Corporation, as tenant (the
"1996 Amendment"); (b) Lease, dated December 10, 1992, between Spectrum
Properties Incorporated, as landlord, and F.S.L. Administrative Services
Corporation, as tenant, for Suite 370 of the Building, as amended by the 1996
Amendment; (c) Base Year Lease, dated July 31, 1997, between MFP and Tenant for
Suite 108 of the Building, as amended by First Amendment to Lease, dated April
1, 2000, between MFP and Tenant; (d) Base Year Lease, dated April 20, 2000,
between MFP and Tenant for Suite 100 of the Building, as amended by First
Amendment to Lease, dated February 23, 2001, between MFP and Tenant, which among
other things added Suite 106 of the Building; (e) Base Year Lease, dated April
20, 2000, between MFP and Tenant for Suite 450 of the Building, as amended by
First Amendment to Lease, dated August 20, 2000, between MFP and Tenant, which
among other things added Suites 350 and 365 of the Building; and (f) Lease
Agreement, dated May 2, 1997, between MFPHLLC, as landlord, and Tenant, as
tenant, for the parking lot and improvements, if any, thereon, being
approximately one (1) block North of the Building, known by Tenant as the
"Circle K Lot", located in the City of Phoenix, County of Maricopa and State of
Arizona (the "Parking Lot" the Suites set forth above and the Parking Lot are,
collectively, the "Demised Premises");
WHEREAS, the term under each of the Existing Leases expires on October
31, 2006; and
WHEREAS, Tenant has requested that Landlords extend the terms and
otherwise amend certain terms and provisions of the Existing Leases and
Landlords are willing to do so subject to and on the following terms and
conditions.
NOW, THEREFORE, Landlords and Tenant, in consideration of the foregoing
premises and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, hereby agree as follows:
1. Defined Terms. All capitalized terms used and not specifically
defined in this Amendment shall have the respective meanings assigned to those
terms in the Existing Leases. Wherever reference is made in a particular
Existing Lease to "the Lease", "this Lease", "herein", "hereof" or words of
similar import, it shall be deemed to refer to such Existing Lease, as amended
by this Amendment, and as the same may hereafter be amended, modified, extended,
supplemented, renewed, replaced or restated, in accordance with the terms
thereof.
2. Amendments to Existing Lease. Landlords and Tenant agree that the
Existing Leases, effective as of the date of this Amendment, are hereby modified
and amended as follows:
a. The term of each of the Existing Leases is hereby extended
for six (6) additional years, commencing November 1, 2006 and expiring
October 31, 2012 (each an "Extended Lease Term"), unless sooner
terminated pursuant to the terms and provisions of the respective
Existing Leases, as amended by this Amendment, or applicable law or in
equity. Accordingly, wherever reference is made in the Existing Leases,
as amended by this Amendment, to the "Term", "Lease Term" or words of
similar import, it shall be deemed to include the original lease term
under the respective Existing Lease and the Extended Lease Term; and
b. (i) From November 1, 2006 through October 31, 2011, Base
Rent or Basic Rent, as the case may be under the respective Existing
Leases (hereinafter "Base Rent") for the Demised Premises shall be
adjusted to an amount equal to the Base Rent in effect on October 31,
2006 under the respective Existing Leases multiplied by the lesser of
(A) 115%, and (B) the Cumulative CPI Factor (as hereinafter defined)
for the period from November 1, 2001 through October 31, 2006 (the
"First CPI Accumulation Period"). There shall be no decrease in the
Base Rent as a result of the adjustment contemplated by this clause;
and
(ii) From November 1, 2011 through October 31, 2012,
Base Rent for the Demised Premises shall be adjusted to an amount equal
to the Base Rent in effect on October 31, 2011 under the respective
Existing Leases multiplied by the lesser of (A) 115%, and (B) the
Cumulative CPI Factor for the period from November 1, 2006 through
October 31, 2011 (the "Second CPI Accumulation Period"). There shall be
no decrease in the Base Rent as a result of the adjustment contemplated
by this clause.
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As used in this subparagraph "Cumulative CPI Factor" shall mean a
fraction, the numerator of which is the Current Number and the
denominator of which is the Base Number. As used in this definition,
the following capitalized terms shall mean: "Base Number" shall mean
the Consumer Price Index for All Urban Consumers, United States City
Average, All Items (1982-84=1 00), issued by the Bureau of Labor
Statistics of the United States Department of Labor (hereinafter called
the "Index") for the month immediately prior to (x) the First CPI
Accumulation Period or (y) the Second CPI Accumulation Period, as
applicable; and "Current Number" shall mean the latest Index published
for the last month of (x) the First CPI Accumulation Period or (y) the
Second CPI Accumulation Period, as applicable, by the Bureau of Labor
Statistics or other governmental agency then publishing the Index (or
if the Index is no longer published, the index of consumer prices
reasonably deemed by the respective Landlord to be comparable to the
Index), after making such adjustments as may be prescribed by the
agency publishing the same or as otherwise so deemed to be required to
compensate for changes subsequent to January 1, 1984 in the base, items
included or method of compilation thereof.
3. Governing Law; Severability. The laws of the State of Arizona shall
govern the validity, performance and enforcement of this Amendment. The
invalidity or unenforceability pursuant to applicable law of any provision of
this Amendment shall not affect or impair any other provision.
4. Merger; No Oral Amendment. All negotiations, considerations,
representations and understandings between the parties with respect to the
amendment of the Existing Leases are incorporated in this Amendment. This
Amendment may not be amended, modified, or otherwise changed without the mutual
agreement in writing of the parties hereto.
5. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the successors, legal representatives, heirs and assigns
of the parties hereto.
6. Due Authorization; No Assignment Etc. Each of the persons executing
this Amendment on behalf of Tenant, hereby covenants and warrants that: Tenant
is a duly constituted corporation authorized to do business in the State of
Arizona; all franchise and corporate taxes of Tenant have been paid to date;
Tenant is duly authorized to execute and deliver this Amendment, and perform its
obligations under the Existing Leases, as amended by this Amendment; the
execution and delivery of this Amendment by Tenant, and the performance by
Tenant of its obligations under the Existing Leases, as amended by this
Amendment, do not violate or contravene in any manner any of the organizational
documents of, or agreements, instruments or documents entered into by, Tenant;
such persons are duly authorized to execute and deliver this Amendment on behalf
of Tenant, and no consent to the execution, delivery or performance of this
Amendment by each such person is required. Tenant represents that it has not
assigned any of the Existing Leases or sublet all or any portion of the Demised
Premises.
7. Effectiveness. This Amendment shall become effective only upon
execution and delivery thereof by Landlords and Tenant. Except as expressly
amended by this Amendment, all
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of the terms, covenants and conditions of the Existing Leases remain and shall
continue in full force and effect and are hereby ratified and confirmed.
8. Conditional Limitation. This Amendment is conditioned upon there
existing no event which with or without the passage of time or the giving of
notice, or both, would constitute a default by Tenant under any of the Existing
Leases on the commencement of the Extended Lease Term. In the event that any
such default exists, at Landlords' option, to be exercised by written notice to
Tenant, this Amendment shall be null and void and of no further force or effect.
9. Counterparts. This Amendment may be executed in two or more
counterpart copies of the entire document or of signature pages to the document,
each of which may be executed by one or more of the parties hereto, but all of
which, when taken together, shall constitute a single agreement binding upon all
of the parties hereto.
IN WITNESS WHEREOF, Landlords and Tenant have executed and delivered
this Amendment as of the date first written above.
LANDLORDS:
MISSOURI FALLS PARTNERS
By: Missouri Falls Holdings, Inc.,
as General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Co-Chairman
MFP HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Co-Chairman
TENANT:
CSK AUTO, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
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