EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this ___ day of ___________,
1997, by and between XXXXXX X. XXXXXX, hereinafter referred to as "Landlord,"
and XXX XXXXXX CHEVROLET, INC., hereinafter referred to as "Tenant."
W I T N E S S E T H:
In consideration of the rents covenants and agreements herein, Landlord
does hereby lease to Tenant and Tenant hereby leases from Landlord upon terms,
provisions and conditions herein, the real property hereinafter described.
ARTICLE I
DESCRIPTION OF PROPERTY, TERMS AND USE
1.1 DESCRIPTION OF PROPERTY. -- Landlord leases to Tenant a portion of
the real estate as described on the attached EXHIBIT "A", together with the
improvements located thereon (hereinafter referred to as "Leased Property").
1.2 TERM. -- Tenant is to have the Leased Property herein described
subject to the terms and conditions hereof for a term of ten (10) years,
commencing on _____________, 1997, (the "Commencement Date") and ending on
_______________. Tenant shall have the option to renew the Lease Agreement for
two (2) renewal terms, each for a period five (5) years, on the same terms and
conditions excepting the rental rate which will be determined by the parties
upon the exercise of such option. Written notice of the exercise of each such
option shall be given by Tenant to Landlord at least one hundred eighty (180)
days prior to the commencement date of such renewal term.
1.3 USE. -- The Leased Property shall be used and occupied by Tenant
solely for vehicle sales and service and related uses. Tenant covenants to
comply with the provisions of all recorded covenants, conditions and
restrictions and all building, zoning, fire and other governmental laws,
ordinances and regulations, rules applicable to the Leased Property and all
requirements of the carriers of insurance covering the Leased Property. Tenant
shall not do or permit anything to be done in or about the Leased Property or
bring or keep anything on the Leased Property that may increase any insurance
premium upon the Leased Property; that may injure the Leased Property; that may
constitute waste; or that may be a nuisance, public or private, or, without
limiting the generality of the foregoing, Tenant shall not allow said Leased
Property to be used for any improper, immoral, unlawful or objectionable
purpose. Tenant agrees that it has determined to Tenant's satisfaction that the
Leased Property can be used for the purpose for which it is leased and waives
any right to terminate this Lease in the event the Leased Property cannot be
used for such purpose.
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ARTICLE II
RENT
2.1 RENTAL. -- Tenant shall pay to Landlord the annual rent of
$858,000.00 payable in advance and without notice in monthly installments of
$71,500.00 each, commencing on ____________, 1997, and continuing on the first
day of each month thereafter during the term of this Lease. Should the Lease
commence on a day other than the first day of a month or end on a day other than
the last day of a month, then the rent shall be appropriately prorated. Rent
shall be paid to Landlord without deduction or offset, in lawful money of the
United States of America at 000 Xxxxx Xxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, or to such other person or at such other place as Landlord may
from time to time designate in writing. Tenant shall also pay in addition to the
annual rent the Florida sales tax (and any other applicable tax) on all rent
payable hereunder.
2.2 The annual rent shall be increased five (5) years after the
commencement date and on each succeeding anniversary of the commencement date by
the percentage increase in the Consumer Price Index (defined below) during the
twelve (12) month period immediately preceding each anniversary of the
commencement date. Such increased annual rent shall be payable in monthly
installments in advance commencing on the anniversary date and continuing until
the next anniversary date. Landlord shall notify Tenant in writing of such
increased rent as soon as such determination is reasonably possible. If
notification is not given until after the anniversary date, any rent due but not
paid since the anniversary date shall be payable upon Tenant's receipt of such
notice. Rent shall never be decreased during the term of this Lease. The parties
hereto adopt as a standard for measuring fluctuations in the Consumer Price
Index (revised using the 1982-84 averages as equal to 100), United States
average on all items and commodity groups issued by the Bureau of Labor
Statistics of the United States.
2.3 ADDITIONAL CHARGES. -- As and when due and payable, Tenant shall
pay all charges levied, assessed or imposed upon the Leased Property (except
debt service on any mortgage encumbering the Leased Property), including, but
not limited to, the following:
(a) All supplies and materials used in the operation and
maintenance of the Leased Property;
(b) Cost of all utilities for the Leased Property, including
cost of electricity, water, lighting, heating, air conditioning and ventilating;
(c) Cost of all maintenance and service agreements for the
Leased Property, the servicing and repair of equipment therein and grounds,
including janitorial service, security service, landscape and irrigation system
maintenance, alarm service, window cleaning, elevator maintenance, refuse
collection, parking lot sweeping and maintenance;
(d) cost of all insurance relating to the Leased Property,
including rent loss, casualty and liability insurance applicable to the Leased
Property;
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(e) All taxes and assessments and governmental charges,
whether federal, state, county or municipal and whether they be by taxing
districts or authorities presently taxing the Leased Property or by others,
subsequently created or otherwise, and any other taxes and assessments
attributable to the Leased Property or its operation;
(f) Cost of all repairs and general maintenance of the Leased
Property;
(g) Costs incurred in compliance with new or revised federal
or state laws or municipal or county ordinances or codes or regulations
promulgated under any of the same.
2.4 If Tenant shall refuse, neglect, or otherwise fail or omit to make
any of the payments herein required, then the Landlord may, at its option, but
without being obligated to do so, pay the same and the amount or amounts of
money so paid, including reasonable attorneys' fees and expenses which may have
been incurred together with interest on all such amounts at the highest lawful
rate permitted under the laws of the State of Florida, shall be considered as
rent immediately due and payable. The payment of such rent may be collected or
enforced by Landlord in the same manner as though it were an installment of rent
specifically required by the terms of this Lease to be paid by Tenant to
Landlord.
ARTICLE III
REPAIR AND MAINTENANCE OF LEASED PROPERTY
3.1 Tenant shall at its sole cost and expense keep and maintain the
interior and exterior of the Leased Property (structural and non-structural) in
good condition and repair, including, but not by way of limitation, necessary
replacements of the interior and exterior painting, mechanical equipment, fire
protection devices, heating, air conditioning, electrical, plumbing and sewer
systems, doors, windows, glass, roofs, walls, floors, foundations, paving,
parking lots, walks and landscaping.
3.2 Landlord shall not furnish any services whatsoever to the Leased
Property. Tenant shall be solely responsible for all operating expenses
necessary for the proper and efficient operation and first class maintenance of
the Leased Property. In all respects this Lease shall be deemed and construed to
be a "Net Lease" and Tenant shall pay to Landlord the required rent free of any
charges, set-offs, taxes, assessments, impositions, expenses or deductions.
Tenant shall be solely responsible for and shall pay all costs and expenses
relating to the complete and total maintenance, repair, insuring and operation
of the Leased Property.
ARTICLE IV
HOLDING OVER
If Tenant should remain in possession of the Leased Property after the
termination or expiration of the term without the execution by Landlord and
Tenant of a new lease, then Tenant shall be deemed to be occupying the Leased
Property as a tenant at sufferance, subject to all the covenants and obligations
of this Lease and at a daily rental of twice the per day rent in effect
immediately prior to such expiration or termination, computed on the basis of a
thirty (30) day month, but such holding over shall not extend the term.
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ARTICLE V
ALTERATIONS, ADDITIONS, IMPROVEMENTS
Tenant will make no alteration, change, improvements or addition to the
Leased Property without the prior written consent of Landlord. Landlord will not
unreasonably withhold its approval for such items after first reviewing the
plans and specifications depicting the improvements. The Tenant may, without the
written consent of the Landlord, but at the sole cost and expense of the Tenant
and in a good and workmanlike manner, erect and alter shelves, movable
partitions, and trade fixtures and equipment as the Tenant may deem advisable so
long as such activity does not alter the basic character of the building or
improvements, and in each case complying with all applicable governmental laws,
ordinances, regulations and other applicable requirements. Tenant may remove its
trade fixtures, office supplies and moveable office furniture and equipment not
attached to the Leased Property provided such removal is made prior to the
termination or expiration of the term, Tenant is not then in default in the
timely performance of any obligation or covenant under this Lease, and Tenant
promptly repairs all damage caused by such removal. All other property at the
Leased Property and any alteration or addition to the Leased Property
(including, but not limited to, wall-to-wall carpeting, drywall partitions,
paneling or other wall covering) and any other article attached or affixed to
the floor, wall or ceiling of the Leased Property shall become the property of
the Landlord and shall be surrendered with the Leased Property as part thereof
at the termination of this Lease, without payment or compensation therefor. If,
however, Landlord so requests in writing, Tenant will prior to vacating the
premises upon the termination or expiration of this Lease, remove any and all
alterations, additions, fixtures, equipment and property placed or installed by
it in the Leased Property and will repair any damage caused by such removal.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 Tenant shall not assign this Lease nor any rights hereunder, nor
let or sublet all or any part of the Leased Property, nor suffer or permit any
person or entity to use any part of the Leased Property, without first obtaining
the express written consent of Landlord, which consent shall not be unreasonably
withheld. Should Landlord consent to such assignment of the Lease, or to a
sublease of all or any part of the Leased Property, Tenant does hereby guarantee
payment of all rent herein reserved until the expiration of the term hereof,
sublessees or assignees shall become directly liable to Landlord for all
obligations of Tenant hereunder, and no failure of Landlord to promptly collect
from any assignee or sublessee, or any extension of the time for payment of such
rent, shall release or relieve Tenant from its guaranty or obligation of payment
of such rent. Any assignment or sublet approved by Landlord shall not relieve
Tenant of its obligations hereunder. As partial consideration for Landlord's
consent to any sublet or assignment, Landlord shall be entitled to fifty percent
(50%) of any amount paid by an assignee or subtenant to Tenant for such
assignment or sublet and/or fifty percent (50%) of the difference between the
rent due hereunder for the sublet premises and the amount paid by any assignee
or subtenant to Tenant for the assignment or sublet of premises. Tenant shall
reimburse Landlord for all of the reasonable and necessary legal, accounting and
other direct costs incurred due to Tenant's sublet or assignment. In determining
whether or not to grant consent to the Tenant's sublet or assignment request,
Landlord may consider any reasonable factor. Landlord and Tenant agree that any
one of the following factors, or any other
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reasonable factor, will be reasonable grounds upon which Landlord may approve or
deny the Tenant's request:
(a) Financial strength of the proposed subtenant/assignee must
be at least equal to that of the existing Tenant at the time of the Lease
commenced;
(b) Business reputation of the proposed subtenant/assignee
must be in accordance with generally acceptable commercial standards;
(c) Use of the Leased Property by the proposed
subtenant/assignee will not violate or create any potential violation of any
laws, covenants or other agreements affecting the Leased Property.
6.2
(a) Landlord shall have the right to transfer and assign, in
whole or in part, all of its rights and obligations hereunder, and in the Leased
Property referred to herein, and upon any such transfer or assignment, no
further liability or obligation shall thereafter accrue against Landlord
hereunder (except to the extent of any retained Lessor's interest by Landlord
upon any partial assignment of its interest in this Lease).
(b) Landlord may, at any time during the term of this Lease,
pledge the proceeds of rents and other profits from the real property to a
third-party lender as a part of a real estate loan transaction (the "Loan"). In
such event, Tenant shall, if Landlord is ever in default under the terms and
conditions of the Loan, upon written notification by any such lender,
immediately pay to such lender all rents due hereunder in timely fashion and
Tenant shall also subordinate its position as Tenant to the lien of a mortgage
or any other security instrument given to such lender.
6.3 Should Tenant be a corporation, any transfer of this Lease by
merger, consolidation or liquidation or any change in the ownership of or power
to vote a majority of its outstanding voting stock shall constitute an
assignment. Such an assignment shall require Landlord's consent if by one or
more sales or transfers, by operation of law or otherwise or by creation of new
stock, an aggregate of more than fifty percent (50%) of Tenant's stock shall
become vested in a party or parties who are not stockholders of Tenant as of the
Commencement Date of this Lease. An assignment to a subsidiary or parent
corporation of the corporate Tenant shall not require Landlord's consent, but
Tenant shall remain liable for Tenant's obligations hereunder. Should Tenant be
a partnership, trust or other association or entity having transferable
ownership interests, any transfer of more than fifty percent (50%) of such
ownership interests to a party or parties who are not holders of such ownership
interest at the Commencement Date shall constitute an assignment hereunder which
shall require Landlord's consent.
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ARTICLE VII
INSURANCE
7.1 At all times during the term of this Lease, Tenant shall purchase
and maintain the following insurance in the name of Landlord:
(a) Fire and Extended Coverage Casualty Insurance upon the
Leased Property in an amount equal to the full replacement value of the
improvements on the Leased Property. The value of the improvements will exclude
the costs of foundation, underground piping and/or wiring, outside paving and
landscaping. Such insurance shall include the "Inflation Guard Endorsement" or
shall be adjusted annually to reflect the then current construction costs.
(b) Rent loss insurance on an "All Risk" basis in an amount
equal to the annual rent plus the sum of the annual taxes and insurance.
(c) Comprehensive Public Liability Insurance covering both
bodily injury liability and property damage liability with a combined single
limit of $1,000,000.00 for each occurrence.
7.2 Tenant shall also maintain, in its name, business interruption
insurance in an amount sufficient to protect Tenant against loss due to
interruption of its occupancy of the Leased Property after casualty.
7.3 The insurance to be maintained under this Article VII also will be
subject to the requirements of any mortgagee, including, but not limited to,
federal Flood Insurance. This insurance will be maintained with insurance
companies licensed and qualified to do business in the State of Florida and
having a general policyholders' rating of A or A+ and a financial rating of
Class X as established by A.M. Best Company of Oldwick, New Jersey.
7.4 To the extent that a loss is covered by insurance in force and
recovery is made for such loss, Landlord and Tenant hereby mutually release each
other from liability and waive all right of recovery against each other for any
loss from perils insured against under their respective policies. Landlord and
Tenant also agree to obtain a waiver of subrogation from their insurance
carriers permitting this waiver.
7.5 The original of each such policy of insurance or certified
duplicate thereof issued by the insurance or insuring organization shall be
delivered by Tenant to Landlord on or before ten (10) days prior to commencement
of the Lease term and ten (10) days prior to the expiration or termination of
any existing policy. Any mortgagee of Landlord shall be named as an additional
insured under such insurance and such insurance shall be primary and
noncontributing with any insurance carried by Landlord. The insurance policies
shall contain endorsements requiring thirty (30) days written notice to Landlord
prior to any cancellation or any reduction in amount of coverage. Tenant shall
deliver to Landlord as a condition precedent to its maintaining occupancy of the
Leased Property (but not to its obligation to pay rent) a certificate evidencing
each renewal of such insurance and shall maintain such insurance in effect
throughout the term of this Lease. Tenant shall promptly notify Landlord of any
accident or injury occurring on the Leased Property.
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ARTICLE VIII
HOLD HARMLESS
Except for loss, damage or claims arising from the Landlord's negligent
acts, omissions or breaches of this Lease, Landlord shall not be liable to
Tenant for any injury or damage to any person or property in or about the Leased
Property from any cause whatsoever. Tenant shall indemnify and save harmless the
Landlord and its agents from and against any and all liability, claims, demands,
damages, expenses, fees, fines, penalties, suits, proceedings, actions and costs
of actions of any kind and nature, including attorneys' fees, for injury or
death to persons or damage to property or property rights (a) occurring in, on
or about the Leased Property or any part thereof, or (b) occurring in, on or
about the Leased Property or any part thereof, when any such injury or damage
shall be caused or result in whole or in part by any act, negligence, or fault
or omission of any duty by the Tenant, its agents, servants, employees,
licensees or invitees, or by any person under the control or direction of
Tenant. Tenant will further indemnify and save harmless the Landlord for all
liability, claims and other items above mentioned, arising or growing out of or
connected with any breach, violation, non-performance or failure to abide by any
covenant, condition, agreement or provisions contained in this Lease on the part
of the Tenant to be kept, performed, complied with or abided by. If it becomes
necessary for the Landlord to defend any action seeking to impose any such
liability, the Tenant will pay the Landlord all costs of court and reasonable
attorneys' fees incurred by Landlord in such defense, in addition to any other
sums which said Landlord may be called upon to pay by reason of the entry of a
judgment or decree against the Landlord in the litigation in which such claim is
asserted.
ARTICLE IX
DESTRUCTION OR DAMAGE BY FIRE OR OTHER CASUALTY
In the event of a fire or other casualty on the Leased Property, Tenant
shall immediately give notice thereof to Landlord. If the damage or destruction
is such that in the opinion of Landlord it cannot be repaired with reasonable
diligence within one hundred eighty (180) days from the date of such casualty,
then either Landlord or Tenant may terminate this Lease by giving to the other
written notice of such termination within ten (10) days following the giving of
Landlord's opinion. Should this Lease be so terminated, then all rent owed up to
the date of such casualty shall be paid by Tenant to Landlord and this Lease
shall then terminate. In the event that neither Landlord nor Tenant so
terminates this Lease, then Landlord shall repair said improvements with all
reasonable speed.
If the damage or destruction is such that in the opinion of Landlord it
can be repaired with reasonable diligence within one hundred eighty (180) days
from the date of such casualty, then the rent hereby reserved shall xxxxx from
the date of such casualty until the damage has been repaired and Landlord shall
repair the damage with all reasonable speed. Notwithstanding the giving of such
opinion by Landlord, Landlord shall not be liable to Tenant if Landlord shall
not actually repair such damage within said one hundred eighty (180) day period
if Landlord shall proceed diligently with such repair work.
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If in the opinion of Landlord the damage can be repaired within one
hundred eighty (180) days of the date of casualty and the damage is such that
the Leased Property is capable of being partially used by Tenant, then until
such damage has been repaired the rent shall xxxxx as to the portion of the
Leased Property rendered untenantable until such time as the Leased Property is
repaired.
The opinions to be given by Landlord shall be in writing and shall be
provided to Tenant within thirty (30) days after casualty.
ARTICLE X
CONDEMNATION
If the Leased Property or any part thereof shall be taken or condemned
for any public purpose (or conveyed in lieu or in settlement thereof) to such an
extent as to render the remainder of the Leased Property, in the opinion of
Landlord, not reasonably suitable for occupancy, this Lease shall, at the option
of either party, forthwith cease and terminate, and all proceeds from any taking
or condemnation of the Leased Property shall belong to and be paid to Landlord.
Tenant shall be entitled to maintain an independent claim against any condemning
authority for damages suffered by Tenant. If this Lease is not so terminated,
Tenant shall repair any damage resulting from such taking, to the extent and in
the manner provided in Article IX and rental hereunder shall be abated to the
extent the Leased Property is rendered untenantable during the period of repair,
and thereafter be adjusted on an equitable basis considering the areas of the
Leased Property taken and remaining.
ARTICLE XI
SIGNS
Tenant may erect signs on the Leased Property with respect to the
Tenant's business. During the term of this Lease, Tenant shall have the right to
maintain those signs or signs of equivalent size and quality in such locations
as may be in compliance with local laws, ordinances and regulations. Any
additional signs or changes to existing signs shall require the written consent
of Landlord.
ARTICLE XII
DEFAULT
12.1 Each of the following shall be an "Event of Default":
(a) Tenant shall fail to pay when due any monthly installment
of rent or any other charge or payment required of Tenant hereunder.
(b) Tenant shall violate or fail to perform any of the other
conditions, covenants or agreements herein made by Tenant and such violation or
failure shall continue for a period of fifteen (15) days after written notice
thereof to Tenant from Landlord.
(c) Tenant shall make a general assignment for the benefit of
its creditors or shall file a petition for bankruptcy or other reorganization,
liquidation, dissolution or similar relief.
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(d) A proceeding is filed against Tenant seeking any relief
mentioned in (c) above.
(e) A trustee, receiver or liquidator shall be appointed for
Tenant or a substantial part of its property.
(f) Tenant shall vacate or abandon the Leased Property (an
absence of substantial activity by Tenant in the Leased Property for more than
seven (7) consecutive days shall constitute such abandonment).
(g) Tenant shall mortgage, assign or otherwise encumber its
leasehold interest.
12.2 If any such Event of Default occurs, Landlord may, without further
notice, immediately or at any time thereafter do one or more of the following:
(a) Re-enter and repossess the Leased Property and remove any
property therein and store the same elsewhere at Tenant's expense without
relieving Tenant from any liability or obligation hereunder.
(b) Relet the Leased Property or any part thereof for Tenant's
account, but without obligation to do so and without relieving Tenant from any
liability or obligation hereunder. Any amount received by Landlord from
reletting will apply first to all reasonable costs and expenses incurred by
Landlord in reletting (including, without limitation, broker's commissions,
advertising expenses, cleaning and remodeling expenses).
(c) Bring an action then or thereafter against Tenant to
recover the amount of any payment owing by Tenant to Landlord as the same is
due, becomes due or accumulates.
(d) Terminate this Lease by giving Tenant written notice
thereof, without relieving Tenant from any liability or obligation for payments
theretofore becoming due or for present and prospective damages resulting from
tenant's default.
(e) Accelerate the entire amount of rent due under this Lease
for the entire term of this Lease, which amount shall be immediately due and
payable.
(f) Pursue any other remedy provided by law.
12.3 If Tenant fails to pay Landlord any amount that Tenant is
obligated to pay, Tenant shall pay Landlord interest thereon at the rate of
eighteen percent (18%) per annum on the amount of the delinquency or deficiency
from the date due until the date paid. Landlord's remedies set forth in this
Lease are cumulative and not in limitation to any remedies given by law.
12.4 If, upon default by Tenant or termination of this Lease, Landlord
shall enter or take possession of the Leased Property, Landlord shall have the
right but not the obligation to remove
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from the Leased Property all personal property, fixtures, furnishings and other
property located therein, and to store such property in any place selected by
Landlord, including, but not limited to, a public warehouse, at the expense and
risk of the owners thereof, with the right to sell such stored property, without
notice to Tenant, after it has been stored for a period of thirty (30) days or
more, or as otherwise provided by law. The proceeds of such sale shall be
applied first to the cost of such sale, second to the payment of the charges for
storage, if any, and third to the payment of any other sums of money which may
then be due from tenant to Landlord under any of the terms hereof, the balance,
if any, to be paid to Tenant.
12.5 If Tenant asserts that Landlord has failed to meet its obligations
under this Lease, Tenant shall give written notice to Landlord specifying the
alleged failure to perform. If Landlord has not begun and pursued with
reasonable diligence the cure of any failure of the Landlord to meet its
obligations under this Lease within thirty (30) days of receipt of the notice,
then Landlord shall be in default. In no event shall Tenant have the right to
terminate or rescind this Lease as a result of Landlord's default as to any
covenant or agreement contained herein. Tenant hereby waives such remedy of
termination and rescission and hereby agrees that Tenant's remedy for default
hereunder by Landlord shall be limited to a suit for damages or for an
injunction or both. Landlord's liability for a default by Landlord under this
Lease shall, in all events, be limited to its interest in the Leased Property.
ARTICLE XIII
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
This Lease and all rights of the Tenant hereunder are subject and
subordinate to any mortgage, or other security instrument which does now or
hereafter encumber the Leased Property or any interest of Landlord therein and
to any and all advances made on the security thereof, and to any and all
increased, renewals, modifications, consolidations, and extension of any such
mortgage or security instrument. No further writing from Tenant shall be
necessary to evidence such subordination, however, within fifteen (15) days
after written request from Landlord, Tenant agrees to execute any instrument
which may be deemed necessary or desirable by Landlord to further effect the
subordination of this Lease to any mortgage. Should Tenant fail to respond to
such request, Tenant hereby irrevocably appoints Landlord as attorney-in-fact of
Tenant at any time for Tenant, and in Tenant's name, to execute proper
subordination agreements to this effect. If the interest of Landlord in the
Leased Property is transferred to any person or entity by reason of foreclosure
or other proceedings for enforcement of any mortgage or security interest or by
delivery of a deed in lieu of foreclosure or other proceedings, Tenant shall
immediately and automatically attorn to such person or entity. In the event of
such transfer, this Lease and Tenant's rights hereunder shall continue
undisturbed so long as Tenant is not in default.
ARTICLE XIV
ACCESS BY LANDLORD
Tenant shall permit Landlord or its agents or representatives to enter
into and upon any part of the Leased Property at all reasonable hours to inspect
same; to clean; to make repairs, alterations
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or additions thereto, as Landlord may deem necessary or desirable; to show the
Leased Property to prospective purchasers or tenants; or for any other purpose
deemed reasonable by Landlord.
ARTICLE XV
ESTOPPEL
Within ten (10) days after request therefor by Landlord, its agents,
successors or assigns, Tenant shall deliver, in recordable form, a certificate
to any proposed mortgagee or purchaser or to Landlord, together with a true and
correct copy of this Lease, certifying (if such be the case) the following:
(a) That this Lease is in full force and effect without
modification or, if modified, confirming the terms of such modification.
(b) The amount of rent currently being paid and the amount, if
any, of prepaid rent and security deposit paid by Tenant to Landlord.
(c) That Landlord has performed all of its obligations due to
be performed under this Lease and that there are no defenses, counterclaims,
deductions, offsets outstanding or other excuses for Tenant's performance under
this Lease.
(d) That Tenant is occupying the Leased Property and has
accepted same.
(e) Any other fact reasonably requested by Landlord or such
proposed mortgagee or purchaser.
Tenant's failure to timely deliver the above-described certificate
shall be conclusive upon Tenant that the above statements are true, that no more
than one month's rent has been paid in advance and that the amount of the
security deposit held by Landlord is as represented by Landlord.
ARTICLE XVI
QUIET ENJOYMENT
Landlord covenants that so long as Tenant pays the rent reserved in
this Lease and performs its agreements hereunder, Tenant shall have the right to
quietly enjoy and use the Leased Property for the term hereof, subject only to
the provisions of this Lease.
ARTICLE XVII
TENANT FORBIDDEN TO ENCUMBER LANDLORD'S INTEREST
It is expressly agreed and understood between the parties hereto that
nothing in this Lease shall ever be construed as empowering the Tenant to
encumber or cause to be encumbered the title or interest of Landlord in the
Leased Property in any manner whatsoever. In the event that regardless of this
prohibition any person, furnishing or claiming to have furnished labor or
materials at the request of the Tenant or of any person claiming by, through or
under the Tenant shall file a lien
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against Landlord's interest therein, Tenant, within thirty (30) days after being
notified thereof, shall cause said lien to be satisfied of record or the
premises released therefrom by the posting of a bond or other security as
prescribed by law, or shall cause same to be discharged as a lien against
Landlord's interest in the Leased Property by an order of a court having
jurisdiction to discharge such lien.
ARTICLE XVIII
APPLICABLE LAW
This Lease is entered into in the State of Florida and shall be
governed by the applicable law of said state.
ARTICLE XIX
RECOVERY OF LITIGATION EXPENSE
In the event either party requires the services of an attorney in
connection with enforcing the terms of this Lease or in the event suit is
brought for the recovery of any rents due under this Lease or for the breach of
any covenant or condition of this Lease or for the restitution of the Leased
Property to Landlord and/or eviction of Tenant, the party prevailing in such
legal action shall be entitled to an award of all legal costs and expenses,
including a reasonable sum for attorneys' fees and costs incurred by Landlord
(including appellate and bankruptcy proceedings) enforcing the terms of this
Lease when such enforcement is settled by the parties without entry of a final
judgment.
ARTICLE XX
NOTICES
All notices required by the law and this Lease to be given by one party
to the other shall be in writing, and the same shall be served by Certified
Mail, Return Receipt Requested, in postage prepaid envelopes addressed to the
following addresses or such other addresses as may be by one party to the other
designated in writing:
As to Landlord: Xxxxxx X. Xxxxxx
000 X. Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
As to Tenant: Xxx Xxxxxx Chevrolet, Inc.
0000 X. Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
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ARTICLE XXI
WAIVER
No assent or consent to changes in or waiver of any part of this Lease
shall be deemed or taken as made, unless the same be done in writing and
attached hereto and endorsed by Landlord. No covenant or term of this Lease
stipulated in favor of Landlord shall be waived except by express written
consent of Landlord, whose forbearance or indulgence in any regard whatsoever
shall not constitute a waiver of the covenant, term or condition to be performed
by Tenant. Until complete performance by the Tenant of said covenant, term or
condition, the Landlord shall be entitled to invoke any remedy available under
this Lease or by law despite such forbearance or indulgence.
ARTICLE XXII
RADON GAS
Radon is a naturally occurring radioactive gas which, when accumulated
in a building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit. Pursuant to ss.404.056(8), Florida Statutes.
ARTICLE XXIII
ENTIRE AGREEMENT, BINDING EFFECT AND SEVERABILITY
This Lease and any written addenda and all exhibits hereto (which are
expressly incorporated herein by this reference) shall constitute the entire
agreement between Landlord and Tenant; no prior written or prior or
contemporaneous oral promises or representations shall be binding. This Lease
shall not be amended, changed or extended except by written instrument signed by
both parties hereto. Except for the amount and terms of payment of rent due
hereunder, Tenant agrees to approve and accept reasonable revisions to the terms
and conditions of this Lease required by any lender providing financing for the
development of the Leased Property or other property of Landlord adjacent
thereto, provided that no changes will be made which materially diminish
tenant's rights or increase Tenant's obligations hereunder. The provisions of
this Lease shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and assigns of the parties, but this
provision shall in no way alter the restrictions on assignment and subletting
applicable to Tenant hereunder. Time is of the essence in the performance of the
obligations of the parties hereto. If any provision of this Lease or the
application thereof to any person or circumstance shall at any time or to any
extent be held invalid or unenforceable, and the basis of the bargain between
the parties hereto is not destroyed or rendered ineffective thereby, the
remainder of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affect thereby.
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ARTICLE XXIV
GUARANTY
The undersigned Guarantor absolutely and unconditionally guarantees to
the Landlord, its successors and assigns (whether collateral assigns or
otherwise), the prompt and full payment in United States currency and the
performance to the Landlord of any and all obligations of the Tenant under the
terms and conditions of the Lease Agreement, including, without limitation, the
full and timely payment of all installments of rent and other sums due to the
Landlord, its successors and assigns. The Guarantor also absolutely and
unconditionally guarantees the full and timely performance of all duties and
obligations whatsoever of the Tenant to Landlord, whether now existing or
hereafter arising, and agree that in the event the Tenant fails to fully and
timely perform any of said duties and obligations to fully and timely perform
the same.
The liability of the Guarantors hereunder shall continue until the
Tenant has performed all of its duties and obligations under the terms and
conditions of the Lease Agreement.
The Landlord may, in its discretion, amend, modify, extend, or renew,
in any way whatsoever, the Lease Agreement, any relationship with the Tenant,
the other Guarantors, or any other document or instrument evidencing or relating
to the relationship between the Landlord and the Tenant or the Guarantors, all
without affecting in any way whatsoever, the continuing liability of the
Guarantors hereunder.
This Guaranty shall bind and inure to the benefit of the respective
heirs, representatives, successors, and assigns of the Landlord and the
Guarantors.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement the
day and year first above written.
LANDLORD:
____________________________ ____________________________________
____________________________ Xxxxxx X. Xxxxxx
TENANT:
XXX XXXXXX CHEVROLET, INC.
____________________________ By:_________________________________
____________________________ Xxxxxx X. Xxxxxx, President
[CORPORATE SEAL]
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The Guarantor hereby joins in execution hereof to evidence its obligations under
Article XXIV.
GUARANTOR:
FIRST TEAM AUTOMOTIVE CORP.
________________________________
________________________________ By:_______________________________
Print Name:_______________________
Title:____________________________
[CORPORATE SEAL]
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LEASED PROPERTY
EXHIBIT "A"