EXHIBIT 10.42
LEASE AGREEMENT
By and between
REC LC, LLC
and
HOLIDAY RV SUPERSTORES, INC.
September ___, 2002
TABLE OF CONTENTS
ARTICLE 1 - DEMISE OF PREMISES...................................................1
ARTICLE 2 - TERM.................................................................2
ARTICLE 3 - RENT.................................................................2
ARTICLE 4 - TITLE AND CONDITION..................................................2
ARTICLE 5 - USE..................................................................3
ARTICLE 6 - NONTERMINABILITY.....................................................3
ARTICLE 7 - ALTERATIONS..........................................................4
ARTICLE 8 - TRADE FIXTURES, TRADE................................................4
ARTICLE 9 - CASUALTY AND CONDEMNATION............................................4
ARTICLE 10 - MAINTENANCE AND REPAIRS.............................................6
ARTICLE 11 - TAXES AND COMPLIANCE WITH LAWS......................................6
ARTICLE 12 - UTILITY CHARGES.....................................................7
ARTICLE 13 - INSURANCE...........................................................7
ARTICLE 14 - SUBORDINATION AND NON-DISTURBANCE...................................8
ARTICLE 15 - HOLDING OVER........................................................8
ARTICLE 16 - DEFAULT BY LESSEE AND REMEDIES......................................9
ARTICLE 17 - LIMITATION OF LANDLORD'S PERSONAL LIABILITY........................10
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ARTICLE 18 - RIGHT OF ENTRY.....................................................11
ARTICLE 19 - LESSOR RELEASED FROM LIABILITY FOR DAMAGES.........................11
ARTICLE 20 - HOLD HARMLESS......................................................11
ARTICLE 21 - SURRENDER..........................................................12
ARTICLE 22 - FULL NET RENT......................................................12
ARTICLE 23 - SERVICE OF NOTICE..................................................13
ARTICLE 24 - SUCCESSORS AND ASSIGNS.............................................13
ARTICLE 25 - RECORDING..........................................................13
ARTICLE 26 - AMENDMENTS.........................................................13
ARTICLE 27 - ESTOPPEL CERTIFICATE...............................................14
ARTICLE 28 - INVALIDITY OF PROVISIONS...........................................14
ARTICLE 29 - CAPTIONS...........................................................14
ARTICLE 30 - ENTIRE AGREEMENT...................................................14
ARTICLE 31 - MECHANIC'S LIENS...................................................14
ARTICLE 32 - WAIVER OF TRIAL BY JURY............................................15
ARTICLE 33 - ENVIRONMENTAL MATTERS..............................................15
ARTICLE 34 - FINANCIAL STATEMENTS...............................................17
ARTICLE 35 - QUIET ENJOYMENT....................................................17
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ARTICLE 36 - ASSIGNMENT AND SUBLETTING..........................................17
ARTICLE 37 - ADVANCES BY LESSOR.................................................18
ARTICLE 38 - NO MERGER..........................................................18
ARTICLE 39 - MISCELLANEOUS......................................................18
ARTICLE 40 - SECURITY DEPOSIT...................................................19
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EXHIBIT A
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into as of the ____ day of
September, 2002, by and between REC LC, LLC, a Minnesota limited liability
company (hereinafter referred to as "Lessor"), and HOLIDAY RV SUPERSTORES, INC.,
a Delaware corporation (hereinafter referred to as "Lessee").
Capitalized terms not otherwise defined when they first appear are
defined in Appendix 1.
WITNESSETH:
ARTICLE 1 - DEMISE OF PREMISES
The Lessor, having full authority to make this lease and the agreements
hereinafter set forth ("this Lease"), and in consideration of the rents herein
agreed to be paid and of the covenants and agreements agreed to herein by Lessee
hereby, demises and leases to Lessee and Lessee hereby leases from Lessor all of
Lessor's right, title and interest in the premises and property located in the
City of Las Cruces, County of Xxxx Xxx, and State of California, described as
follows:
XXX 0, XXXX XXXXX 0X-00X, Xxxx No. 1, in the City of Las
Cruces, Xxxx Xxx County, New Mexico, as the same is shown and
designated on Plat No. 2486, thereof filed for record in the
Office of the County Clerk of said county on February 1, 1994, and
recorded in Book 18, pages 0-0, Xxxx xxxxxxx, Xxxx Xxx Xxxxxx, Xxx
Xxxxxx,
together with the building, improvements and fixtures located on said property
(collectively, the "Improvements") and all rights, easements and appurtenances
relating thereto. Said real property, Improvements, rights, easements and
appurtenances are hereinafter referred to as the "Demised Premises."
Lessee agrees that, during the term of this Lease, Lessee is obligated
to and shall perform all obligations of the owner of the Demised Premises and
pay all expenses which the owner of the Demised Premises may be required to pay
in order to be in compliance with Legal Requirements and with any reciprocal
easement agreement or any other agreement or document of record now, or of
record in the future if created or filed by or with the consent of Lessee,
affecting the Demised Premises (other than any security document filed by or
relating to Mortgage), herein referred to collectively as the "REA", and that
Lessee shall comply with all of the terms and conditions of Legal Requirements
and the REA during the term of this Lease, to the extent such obligations,
expenses, terms and conditions pertain to the Demised Premises.
ARTICLE 2 - TERM
This Lease is for a term (the "Term") of fifteen (15) years commencing
September ___, 2002 and ending September ___, 2017, unless sooner terminated
according to the terms and conditions of this Lease. In addition to the rights
of the Lessor contained in Article 16 hereof, at the option of the Lessor, the
Lessor may elect to terminate the Term in the event of a Change of Control, in
the event Lessee ceases to use the Demised Premises for the purpose set forth in
Article 5, or if Lessee abandons the Demised Premises.
ARTICLE 3 - RENT
Lessee shall pay to Lessor annual base rent for the Demised Premises
(the "Basic Rent") in the amount of One Hundred Twenty-Six Thousand Dollars
($126,000) payable in equal monthly installments of Ten Thousand Five Hundred
Dollars ($10,500) through and including the month of April 2007, in the amount
of One Hundred Forty Thousand Four Hundred Dollars ($140,400) payable in equal
monthly installments of Eleven Thousand Seven Hundred Dollars ($11,700) for the
months of May, 2007 through April, 2012 and in the amount of One Hundred
Fifty-Eight Thousand Four Hundred Dollars ($158,400) payable in equal monthly
installments of Thirteen Thousand Two Hundred Dollars ($13,200) thereafter. Rent
shall be paid in advance on the first day of each and every calendar month
during the term of this Lease. Basic Rent and Additional Rent as set forth in
this Lease (collectively, the "Rent") shall be payable at the address of Lessor
as set forth in Article 23 hereof, or at such other place of which Lessor shall
have given Lessee written notice in accordance with Article 23 hereof. Rent for
the month of September, 2002 shall be pro rated from the date on which Lessor
acquires the Demised Premises. Rent shall be prepaid on the date of execution
hereof so that the next monthly installment of rent shall be due on October 1,
2002.
If any installment of Basic Rent is not paid within five (5) days after
written notice is given by Lessor to Lessee that the same is overdue, Lessee
shall pay to Lessor, on demand, as Additional Rent, an administrative late
charge (the "Late Charge") equal to three percent (3%) on such overdue
installment of Basic Rent. In addition, any amount payable pursuant to the terms
of this Lease, as Basic Rent or otherwise, shall bear interest thereon from the
date due until the date paid at five percent (5%) in excess of the "prime rate"
as such rate is announced from time to time in the West Coast edition of the
Wall Street Journal.
ARTICLE 4 - TITLE AND CONDITION
The Demised Premises is demised and let to Lessee subject to (i) the
Permitted Encumbrances, (ii) all Legal Requirements, including any existing
violations; and (iii) the condition of the Demised Premises as of the
commencement of the Term, without representation or warranty by Lessor except
that Lessor represents and warrants title against the lawful claims of others
arising from the acts of Lessor (other than the lien and security interest of
the Mortgage where the Mortgagee has executed an SNDA Agreement with Lessee).
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Lessee acknowledges and agrees that Lessee has examined the title to
the Demised Premises prior to the execution and delivery of this Lease and has
found such title to be satisfactory for the purposes contemplated by this Lease.
ARTICLE 5 - USE
Lessee shall use the Demised Premises as a recreational vehicle sales
and service facility, uses ancillary thereto, and no other purpose. In the event
zoning or other laws or ordinances regulating the use of the Demised Premises at
any time during the initial lease term or any extension thereof shall be
modified or changed, Lessee shall use the Demised Premises only for such
purposes as comply with such laws or ordinances. Lessee agrees that it will not
permit any unlawful occupation, business or trade to be conducted on the Demised
Premises or any use to be made thereof contrary to any Legal Requirements, the
REA or the other provisions of this Lease. Lessee shall not use or occupy or
permit the Demised Premises to be used or occupied, nor do or permit anything to
be done in or on the Demised Premises or any part thereof, in a manner that
would in any way violate any certificate of occupancy affecting the Demised
Premises, or make void or voidable any insurance then in force with respect
thereto, or that may make it impossible to obtain fire or other insurance
thereon required to be furnished hereunder by Lessee, or that will cause or be
likely to cause structural injury to any of the leased Improvements, or that
will constitute a public or private nuisance or waste. Nothing in this Lease
contained and no action or inaction by Lessor shall be deemed or construed to
mean that Lessor has granted to Lessee any right, power or permission to do any
act or to make any agreement that may create, give rise to, or be the foundation
for, any right, title, interest, lien, charge or other encumbrance upon the
estate of Lessor in the Demised Premises.
ARTICLE 6 - NONTERMINABILITY
(a) Except as otherwise expressly provided in this Lease,
this Lease shall not terminate, nor shall Lessee have any right to terminate
this Lease, nor shall Lessee be entitled to any abatement or reduction of Rent
hereunder, nor shall Lessee have the right to be released or discharged from any
obligations or liabilities hereunder for any reason, including without
limitation, any damage to or destruction of all or part of the Demised Premises;
any restriction, deprivation or prevention of, or any interference with, any use
or occupancy of the Demised Premises (or any defect in or failure of Lessor's
title to the Demised Premises other than as a result of Lessor's intentional
actions which dispossess Lessee of Lessee's possessory interest in the Demised
Premises); any condemnation, requisition or other taking or sale of the use,
occupancy or title to the Demised Premises; any action, omission or breach on
the part of Lessor under this Lease or under any other agreement between Lessor
and Lessee; the inadequacy or failure of this Lease to lease to Lessee the
property intended to be leased hereby other than as a result of Lessor's
actions; Lessee's acquisition of ownership of the Demised Premises or any sale
or other disposition of the Demised Premises; the impossibility or illegality of
performance by Lessor or Lessee or both; the failure of Lessor to deliver
possession of the Demised Premises; any action of any court, administrative
agency or other governmental authority; or any other cause, whether similar or
dissimilar to the foregoing, any present or future law notwithstanding.
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(b) Lessee will remain obligated under this Lease in
accordance with its terms, and will not take any action to terminate, rescind or
avoid this Lease for any reason, notwithstanding any bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding affecting Lessor,
or any assignee of Lessor, or any action with respect to this Lease which may be
taken by any receiver, trustee or liquidator, or any assignee of Lessor or by
any court in any such proceeding, provided that this Lease is not rejected by or
on behalf of Lessor or any assignee of Lessor. Lessee waives all rights at any
time conferred by statute or otherwise to quit, terminate or surrender this
Lease or the Demised Premises or to any abatement or deferment of any Basic
Rent, Additional Rent or other sum payable hereunder, or for damage, loss or
expense suffered by Lessee on account of any cause referred to in this Article
or otherwise.
ARTICLE 7 - ALTERATIONS
Subject to the consent of the Lessor, which consent shall not be
unreasonably withheld provided that Lessee provides to the Lessor evidence that
such alterations, additions and improvements will be completed and paid for in
full, and subject to the consent of the Mortgagee, Lessee may, at Lessee's sole
expense, make alterations, additions and improvements to the Demised Premises
from time to time during the term of this Lease and shall have the right to
erect and install such other or additional improvements, signs, and equipment on
the Demised Premises as Lessee may deem desirable for conducting the business
permitted by the terms of Article 5 hereof (any of the foregoing being called an
"Alteration"). Lessee agrees that any Alteration shall be done in a good and
workmanlike manner and in conformity with all Legal Requirements that materials
of good quality shall be employed therein, that the structure of any building
upon the Demised Premises shall not be endangered or impaired thereby, and that
the Demised Premises will not be diminished in value thereby.
ARTICLE 8 - TRADE FIXTURES, TRADE
MACHINERY & TRADE EQUIPMENT
Lessee agrees that all trade fixtures, trade machinery, trade
equipment, furniture or other personal property of whatever kind and nature kept
or installed on the Demised Premises by Lessee shall be maintained and installed
so as not to damage any of the Improvements. Any such fixtures, machinery, or
equipment which have been affixed to the Improvements shall be, at the option of
Lessor, considered a part of the Improvements. At the expiration of the term of
this Lease, at the election of Lessor, Lessee shall remove all such trade
fixtures, trade machinery, trade equipment or other property or, in the
alternative, Lessor may deem such fixtures, machinery and other property
abandoned by Lessee, in which event such personal property shall belong to
Lessor.
ARTICLE 9 - CASUALTY AND CONDEMNATION
(a) As to the Demised Premises (and any part thereof),
Lessee hereby assumes all risk of loss, damage or destruction, whether by fire
or other hazard or casualty, or theft or vandalism, or by taking, condemnation,
seizure, confiscation or requisition of use or title by any governmental body or
authority or any Person legally vested with such powers. Lessee hereby assigns
to Lessor, subject to the provisions of paragraphs (b) and (d) below, any award
or insurance proceeds or other payment to which Lessee may become entitled by
reason of its
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interest in the Demised Premises (excluding any interruption of business
proceeds, moving expenses and trade fixtures) if the Demised Premises, or any
portion thereof, is damaged, destroyed, lost or taken (i) by fire or other
casualty, or (ii) by condemnation, requisition or other taking or occupancy of
the Demised Premises on account of any actual or threatened eminent domain
proceeding or other action by any authority, civil or military, having the power
of eminent domain (any event described in such clauses (i) and (ii) being
hereafter termed a "Destruction"). Lessee waives the right to make any claim in
connection with any Destruction for Lessee's loss of leasehold estate created
hereby, goodwill or the unamortized value of any Alterations made by Lessee
after the date hereof. Lessor and the Mortgagee shall have the right, at
Lessee's expense, to appear in any such proceeding or other action and
negotiate, adjust and settle awards, settlements and recoveries without Lessee's
approval; otherwise, Lessee shall at its cost and expense, in the name and
behalf of Lessor, or Lessee, appear in any such proceeding or other action, to
negotiate, accept and prosecute any claim for any award, compensation, insurance
proceeds or other payment on account of any such Destruction and, subject to
paragraph (b) below, to cause the same to be paid to the Mortgagee, if any
pursuant to the terms of the Mortgage, and otherwise to Lessor.
(b) If there shall be a Destruction affecting the Demised
Premises or any part thereof, then Lessee shall give prompt written notice of
such Destruction to Lessor and the Mortgagee, including a description thereof in
reasonable detail. Thereafter, Lessee shall, at Lessee's own cost and expense,
proceed with diligence and promptness to carry out any work necessary to make
the Demised Premises safe and secure, and shall restore, repair, replace,
rebuild and/or improve the Demised Premises in order to restore the Demised
Premises, as nearly as practicable, to a condition and fair market value not
less than the condition required to be maintained hereunder and fair market
value immediately prior to such Destruction, or alternatively, repair, rebuild
and restore the same in accordance with such plans and specifications as are
then generally in use by Lessee, provided, however, the repaired, rebuilt or
replaced Improvements shall have a value not less than the value just prior to
the Destruction. All construction work shall be undertaken and completed in the
same manner as if the same were an Alteration; and all materials that are
scrapped or removed from the Demised Premises in connection with such work may
be dealt with by Lessee as its own property and Lessee shall be entitled to all
salvage resulting therefrom.
(c) Except as expressly provided herein, Rent shall not
xxxxx hereunder by reason of any Destruction affecting the Demised Premises, and
this Lease shall continue in full force and effect and Lessee shall continue to
perform and fulfill all of Lessee's obligations, covenants and agreements
hereunder notwithstanding such Destruction. Until such time as the Mortgage has
been satisfied, in no event shall Lessee have any right to terminate this Lease
due to any Destruction to the Demised Premises.
(d) Notwithstanding the foregoing provisions of this
Article 9, during the term of the Mortgage, proceeds shall be assigned and made
available to Lessee for the costs of restoration, but only in accordance with
and to the extent made available to Lessor pursuant to the Mortgage. In the
event that the Mortgagee does not make the proceeds available for restoration,
Lessee may, upon thirty days' written notice to Lessee and Mortgagee, terminate
this Lease, provided that, if, within such thirty day period, Mortgagee notifies
Lessee that it will make
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the proceeds available (such proceeds to be disbursed in accordance with the
procedures and all other requirements of the Mortgage, including, if applicable,
the requirement that Lessee post any deficiency in restoration proceeds),
Lessee's termination notice shall be null and void. In connection with the
foregoing, Lessor hereby consents to the Mortgagee's making such disbursements
directly to or at the request of Lessee at Mortgagee's option. In the event that
there is a partial taking of the Demised Premises and condemnation proceeds are
not made available to Lessee, Lessee shall be entitled, from and after the
effective date of such condemnation, to an appropriate pro rata reduction of the
Basic Rent payable hereunder which shall correspond to the pro rata reduction in
the rentable square footage of the Demised Premises.
ARTICLE 10 - MAINTENANCE AND REPAIRS
Lessee agrees at its expense to keep both the interior and exterior
(including the foundation, roof, exterior walls or any structural part of the
building) of the Demised Premises, including but not limited to parking areas,
sidewalks and driveways, in good repair and in a clean and wholesome condition
and to at all times fully comply with all health and police regulations in force
and also will make at its own expense all additions, improvements, alterations,
repairs and replacements on the Demised Premises and on and to the appurtenances
and equipment thereof required by any Legal Requirements or Environmental Laws
as required by Article 33 or which may be made necessary by the act or neglect
of any other person or corporation (public or private) and will keep Lessor
harmless and indemnified at all times against any loss, damage, cost or expense
by reason of the failure so to do in any respect or by reason of any accident,
loss or damage resulting to persons or property from any use which may be made
of said premises or of any improvements at any time situated thereon or by
reason or growing out of any act or thing done or omitted to be done by Lessee.
Lessor shall not be required to maintain, alter, repair, rebuild or replace any
improvements on the Demised Premises or to maintain the Demised Premises, and
Lessee expressly waives the right to make repairs at the expense of Lessor
pursuant to any law at any time in effect. Lessor shall have no obligation to
incur any expense of any kind or character in connection with the management,
operation or maintenance of the Demised Premises during the Term of this Lease.
Notwithstanding the foregoing provisions of this Article 10, during the term of
the Mortgage, proceeds of the reserves established by Lessor to fund repairs and
replacements shall be made available to Lessee for such expenses, but only in
accordance with and to the extent made available to Lessor pursuant to the
Mortgage.
ARTICLE 11 - TAXES AND COMPLIANCE WITH LAWS
(a) Lessee shall pay, promptly and before they become
delinquent, all taxes, assessments and other impositions general and special
that become due and payable, regardless of when assessed, at any time during the
term of this Lease upon or against the Demised Premises including the land and
all building furniture, fixtures, equipment and improvements now or hereafter
thereon which may be lawfully assessed either in the name of the Lessor or
Lessee (collectively, "Taxes"). If a special assessment is levied against the
Demised Premises, Lessee will only be responsible to pay installments during the
term of this Lease. The taxes payable by Lessee in the first year of this Lease
and the last year of the initial term or any final extension thereof shall be
prorated to reflect the actual portion of the year that the Lease was actually
in effect. The tax obligation shall be prorated from date of commencement to
date of termination. Lessee shall also
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pay tax, if any, on Rent payments made hereunder, but not Lessor's income tax
due to receipt of Rent. Notwithstanding the foregoing, during the term of the
Mortgage, Lessee shall pay such Taxes and special assessments as Additional
Rent, by means of equal monthly installments; such amounts are required to be
deposited by Lessor with the Mortgagee pursuant to the Mortgage. Lessee agrees
that Mortgagee's determination of the monthly payment on account of Taxes and
special assessments shall be binding absent manifest error.
(b) At Lessee's sole cost and expense, Lessee shall
perform and comply in all material respects with all laws, rules, orders,
ordinances, regulations and requirements now or hereafter enacted or
promulgated, of every government and municipality having jurisdiction over the
Demised Premises and of any agency thereof, relating to the Demised Premises, or
the improvements thereon, or the facilities or equipment thereon or therein, or
the streets, sidewalks, vaults, vault spaces, curbs and gutters adjoining the
Demised Premises, or the appurtenances to the Demised Premises, or the
franchises and privileges connected therewith (collectively, "Legal
Requirements"), whether or not such Legal Requirements shall necessitate
structural changes, improvements, interference with use and enjoyment of the
Demised Premises, replacements or repairs, extraordinary as well as ordinary,
and Lessee shall so perform and comply, whether or not such Legal Requirements
shall now exist or shall hereafter be enacted or promulgated, and whether or not
such Legal Requirements are within the present contemplation of Lessor or
Lessee.
(c) Subject to the requirements of the Mortgage
(including any requirement for the posting of collateral or for obtaining the
consent of the Mortgagee), Lessee shall have the right to contest, by
appropriate legal proceedings, any Taxes and Legal Requirement and to postpone
payment of or compliance with the same during the pendency of such contest,
provided that (i) the commencement and continuation of such proceedings shall
suspend the collection thereof from, and suspend the enforcement thereof
against, Lessor and the Demised Premises, (ii) no part of the Demised Premises
nor any Basic Rent shall be interfered with or shall be in danger of being sold,
forfeited, attached or lost, (iii) Lessee shall diligently prosecute such
contest to a final settlement or conclusion, (iv) there shall be no risk of the
imposition of criminal liability on Lessor or the Mortgagee for failure to
comply therewith, and (v) Lessee shall satisfy any Legal Requirements with
respect to such proceedings, including, if required, that the Taxes be paid in
full before being contested. Lessee shall provide Lessor with written notice of
any such contest.
ARTICLE 12 - UTILITY CHARGES
Lessee shall pay promptly as and when the same become due and payable
all rents, rates and charges for water, sewer, electricity, gas, fuel, heat and
power and other utilities supplied to the Demised Premises or used by Lessee in
connection therewith. In the event a utility easement is necessary to provide
utility service necessary for the Lessee's use, the Lessor agrees to execute any
reasonable utility easement grant.
ARTICLE 13 - INSURANCE
(a) Lessee shall, at its cost and expense, maintain or
cause to be maintained property and liability insurance in such amounts and with
such carriers as may be reasonably
7
requested by the Lessor and, in any event, satisfying all insurance requirements
of the Mortgage. At the option of Mortgagee, Lessor shall maintain such
insurance coverage and Lessee shall pay the premiums therefor in equal monthly
installments, as Additional Rent.
(b) Insurance certificates evidencing the policies
required above shall be deposited with Lessor by Lessee on the date hereof, and
thereafter no less frequently than thirty (30) days prior to the expiration of
each such policy. Lessee also shall deliver insurance certificates evidencing
the coverage required by this Lease to the Mortgagee, naming the Mortgagee as
the certificate holder, the form and substance of such certificates to be
sufficient to evidence compliance with the requirements of this Lease and to be
issued by the insurer or a duly authorized agent of the insurer. Furthermore,
Lessee shall be required to deliver certificates evidencing renewal policies of
all insurance required under this Article, at least thirty (30) days prior to
the expiration of the existing insurance period. All insurance policies and
endorsements shall be fully prepaid and nonassessable. Except for Lessee's
business interruption, moving expenses and trade fixtures insurance, Lessee
shall not obtain any separate or additional insurance relating to the Demised
Premises unless Lessor and the Mortgagee are insureds thereunder (as their
interests may appear).
(c) Lessee shall comply with all of the terms and
conditions of each insurance policy maintained pursuant to the terms of this
Lease.
ARTICLE 14 - SUBORDINATION AND NON-DISTURBANCE
(a) Lessee hereby agrees that this Lease shall be subject
and subordinate to the Mortgage without the necessity of any further instrument.
Within ten (10) days after request therefor from Lessor, the Lessee agrees to
enter into a subordination, non-disturbance and attornment agreement with the
Mortgagee (a "SNDA Agreement") in such form as may be requested from time to
time from by the Mortgagee.
(b) Notwithstanding Section 14(a), Lessee agrees, at the
request of the Mortgagee, to attorn, from time to time, to the Mortgagee or any
purchaser of the Demised Premises, for the remainder of the Term. The provisions
of this paragraph shall inure to the benefit of such holder or such purchaser,
shall apply notwithstanding that, as a matter of law, this Lease may terminate
upon the foreclosure of the Mortgage (in which event the parties shall execute a
new lease for the remainder of the Term on the same terms and conditions set
forth herein), shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions.
(c) Lessee hereby agrees to execute, from time to time,
any instruments reasonably requested by the Mortgagee in confirmation of the
foregoing provisions (a) and (b) hereof.
ARTICLE 15 - HOLDING OVER
Should the Lessee hold over in possession at the expiration of the
Term, such holding over shall not be deemed to extend the Term or renew this
Lease, but the tenancy thereafter shall
8
continue on a month to month term upon the covenants and conditions herein set
forth at Basic Rent equal to two (2) times the monthly rate of Rent in effect
for the last month of the Term until terminated by either party, which notice
shall be given thirty (30) days or more before such date.
ARTICLE 16 - DEFAULT BY LESSEE AND REMEDIES
(a) In the event of any failure of Lessee to pay any Rent
or other amount due hereunder within ten (10) days after receipt of notice by
certified mail, or any failure to perform any other of the terms, conditions or
covenants of this Lease to be observed or performed by Lessee for more than
thirty (30) days after receipt of written notice of such default shall have been
given to Lessee, or if Lessee shall become bankrupt, or file any debtor
proceedings or take or have taken against Lessee in any court pursuant to any
statute either of the United States or of any State, a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of Lessee's property, or if Lessee makes an assignment for
the benefit of creditors, or petitions for or enters into an arrangement, or if
Lessee shall abandon said premises, or suffer this Lease to be taken under any
writ of execution, then Lessor, besides other rights or remedies it may have,
shall have the immediate right to re-entry and may remove all persons and
property from the Demised Premises and such property may be removed and stored
in a public warehouse or elsewhere at the cost of, and for the account of,
Lessee, all without service of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby. Should Lessor elect to re-enter, as herein provided,
or should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this Lease or it may from
time to time, without terminating this Lease, make such alterations and repairs
as may be necessary in Lessor's reasonable judgment in order to relet the
Demised Premises, and relet said premises or any part thereof for such term or
terms (which may be for a term extending beyond the term of this Lease) and such
rental or rentals and upon such other terms and conditions as Lessor in its sole
discretion may deem advisable; upon each such reletting all rentals received by
the Lessor from such reletting shall be applied first to the payment of any
costs and expenses of such reletting, including brokerage fees and attorney's
fees and of costs of such alterations and repairs; second, to the payment of
rent due and unpaid hereunder; and the residue, if any, shall be held by Lessor
and applied in payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be less
than that to be paid during that month by Lessee hereunder, Lessee shall pay any
such deficiency to Lessor. Such deficiency shall be calculated and paid monthly.
No such re-entry or taking possession of said premises by Lessor shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Lessee or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any such reletting
without termination, Lessor may at any time thereafter elect to terminate this
Lease for such previous breach. Should Lessor at any time terminate this Lease
for any breach, in addition to any other remedies it may have it may recover
from Lessee all damages it may incur by reason of such breach, including the
cost of recovering the Demised Premises, reasonable attorney's fees, and
including the worth at the time of such termination of the excess, if any, of
the amount of Rent and other charges reserved in this Lease for the remainder of
the stated term over the then reasonable rental value of the Demised Premises
for the remainder of the stated term, all of which amounts shall be immediately
due and payable from Lessee to Lessor.
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(b) No receipt of moneys by Lessor from Lessee after a
termination of this Lease by Lessor shall reinstate, continue or extend the Term
of this Lease or affect any notice theretofore given to Lessee, or operate as a
waiver of the right of Lessor to enforce the payment Rent, it being agreed that
after the commencement of suit for possession of the Demised Premises, or after
final order or judgment for the possession of the Demised Premises, Lessor may
demand, receive and collect any moneys due or thereafter falling due without in
any manner affecting such suit, order or judgment, all such moneys collected
being deemed payments on account of the use and occupation of the Demised
Premises or, at the election of Lessor, on account of Lessee's liability
hereunder. Lessee hereby waives any and all rights of redemption provided by any
law, statute or ordinance now in effect or which may hereafter be enacted.
(c) The word "re-enter," as used in this Lease, shall not
be restricted to its technical legal meaning, but is used in the broadest sense.
No such taking of possession of the Demised Premises by Lessor shall constitute
an election to terminate the Term unless written notice of such intention be
given to Lessee by Lessor or unless such termination be decreed by a court.
(d) If an action shall be brought for the enforcement of
any provision of this Lease, Lessee shall pay to Lessor all costs and other
expenses which may become payable as a result thereof, including reasonable
attorneys' fees and expenses.
(e) In addition to the foregoing rights and remedies,
Lessor shall have all those rights and remedies available to Lessor at law or in
equity. No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to any other legal or equitable right
or remedy given hereunder, or at any time existing. The failure of Lessor to
insist upon the strict performance of any provision or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. Receipt by Lessor of any Rent
or any other sum payable hereunder with knowledge of the breach of any provision
contained in this Lease shall not constitute a waiver of such breach, and no
waiver by Lessor of any provision of this Lease shall be deemed to have been
made unless made under signature of an authorized representative of Lessor.
ARTICLE 17 - LIMITATION OF LANDLORD'S PERSONAL LIABILITY
Lessee shall look solely to Lessor's interest in the Demised Premises
for the recovery of any judgment against Lessor, and no other property or assets
of Lessor or Lessor's partners, officers, directors, shareholders or principals,
direct or indirect, disclosed or undisclosed, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Lessee's
remedies under or with respect to this Lease.
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ARTICLE 18 - RIGHT OF ENTRY
Lessor shall have the right to enter, at any reasonable time and place,
to inspect the condition of the Demised Premises or for any other purpose in
connection with this Lease.
ARTICLE 19 - LESSOR RELEASED FROM LIABILITY FOR DAMAGES
Lessor shall not be responsible at any time or in any event for any
latent defect, deterioration or change in the condition of the Demised Premises
or for damage to the same. Lessor shall not be liable for any damages to
property of Lessee caused by damage to the Demised Premises. Lessor shall not be
liable for any injury or damage to persons or property whether caused by or
resulting from falling plaster, dampness, any overflow or leaking upon or into
the Demised Premises of water, rain, snow, steam, gas or electricity or any
breakage of pipes, appliances or plumbing or breakage, leaking or obstruction of
soil pipes nor for damage from any such source nor for interferences with light
or other incorporeal hereditament.
ARTICLE 20 - HOLD HARMLESS
Lessee shall pay, and shall protect, defend and indemnify Lessor, the
Mortgagee, the successors and assigns of either and the trustees, beneficiaries,
partners, shareholders, officers, directors, agents or employees of Lessor, the
Mortgagee or any such successor or assign (each, an "Indemnified Party" and
collectively, the "Indemnified Parties"), against and hold the Indemnified
Parties harmless from all liabilities, losses, damages, costs, expenses
(including reasonable attorneys' fees and expenses), claims, demands or
judgments of any nature (a) arising or alleged to arise from or in connection
with the condition, use, operation, maintenance, subletting and management of
the Demised Premises, (b) relating to the Demised Premises and the appurtenances
thereto and the use and occupancy thereof by Lessee or anyone claiming by,
through or under Lessee or (c) arising or alleged to arise from or in connection
with any of the following events: (i) any injury to, or death of, any person or
any damage to or loss of property on the Demised Premises or growing out of or
directly or indirectly connected with, ownership, use, nonuse, occupancy,
operation, possession, condition, construction, repair or rebuilding of the
Demised Premises or resulting from the condition of any thereof, (ii) any claims
by third parties resulting from any violation or alleged violation by Lessee of
(A) any provision of this Lease, or (B) any Legal Requirement or the REA, or (C)
any other lease or agreement relating to the Demised Premises, or (D) any
contract or agreement to which Lessee is a party or any restriction, law,
ordinance or regulation, affecting the Demised Premises or the ownership, use,
nonuse, occupancy, condition, operation, possession, construction, repair or
rebuilding thereof, (iii) any contest permitted by Article 11; or (iv) Lessee's
failure to pay in accordance with the terms and provisions hereof any item of
Additional Rent, ground rent, if any, or other sums payable by Lessee hereunder.
If Lessor, the Mortgagee, or any agent of Lessor or the Mortgagee, or any other
Indemnified Party, shall be made a party to any such litigation commenced
against Lessee, and if Lessee, at Lessee's expense, shall fail to provide Lessor
or the Mortgagee or its agent or other Indemnified Party with counsel reasonably
approved by such party within thirty (30) days written notice of such failure,
Lessee shall pay all costs and reasonable attorney's fees and expenses incurred
or paid by Lessor or the Mortgagee or its agent or other Indemnified Party in
connection with such litigation.
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ARTICLE 21 - SURRENDER
At the expiration of the Term Lessee shall surrender the Demised
Premises in as good a condition as it was at the beginning of the Term,
reasonable use, wear and tear, and damages by the elements excepted. Lessee
agrees that removal of any trade fixtures, trade machinery, trade equipment, or
any of Lessee's personal property shall be done in a good and workmanlike manner
in conformity with all laws, ordinances and regulations of all public
authorities having jurisdiction, and that the Demised Premises will not be
diminished in value thereby. No act or thing done by the Lessor or its agents
during the term of this Lease shall be deemed an acceptance of the surrender to
the Demised Premises and no agreement to accept such surrender shall be valid
unless in writing signed by the Lessor. No employee or agent of the Lessor shall
have any power to accept the keys of the Demised Premises prior to the
termination of this Lease and the delivery of the keys to any employee or agent
of the Lessor shall not operate as a termination of this Lease or a surrender of
the Demised Premises.
ARTICLE 22 - FULL NET RENT
It is the purpose and intent of Lessor and Lessee that the Basic Rent
shall be absolutely net to the Lessor, so that this Lease shall yield net to
Lessor, the Basic Rent specified in Article 3 above in each year during the
Term, and that all Additional Rent including without limitation all costs,
impositions, insurance premiums, carrying charges, expenses, levies,
assessments, taxes and obligations of every kind and nature whatsoever relating
to the Demised Premises, or any improvements thereon or additions thereto, shall
be paid by Lessee, excepting only principal and interest on any fee, mortgages,
or other lien placed upon the premises by Lessor or income taxes, franchise
taxes, or estate or transfer taxes of the Lessor, provided, however, that if at
any time the present method of taxation or assessment shall be changed so that
the whole or any part of the taxes, assessments, levies, impositions or charges
now levied, assessed or imposed on real estate or the improvements thereon shall
be levied, assessed or imposed wholly or partially as a capital levy or
otherwise on the rents received therefrom or if any tax, franchise tax,
assessment, imposition, levy or charge, or any part thereof, shall be measured
by or based, in whole or in part, upon the present or any future building or
buildings on or constituting a portion of the Demised Premises, and shall be
imposed upon Lessor, then all such taxes, assessments, levies, impositions or
charges, or the part thereof so measured and based, shall be deemed to be
included within the term "Taxes" for the purpose hereof, and Lessee will pay and
discharge the same as herein provided.
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ARTICLE 26 - AMENDMENTS
No waivers, alterations, or modifications of this Lease or any
agreements in connection therewith shall be valid unless in writing duly
executed by both Lessor and Lessee and consented to by the Mortgage.
ARTICLE 23 - SERVICE OF NOTICE
Every notice, approval, consent or other communication authorized or
required by this Lease shall not be effective unless the same shall be in
writing and sent postage prepaid by United States registered or certified mail,
return receipt requested, and
(a) if intended for Lessor shall be addressed to:
Rec LC, LLC
0000 Xxxxx Xxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
(b) if intended for Lessee shall be addressed to:
Holiday RV Superstores, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
or to such other address as either party may designate by notice given from time
to time in accordance with this Article. Any notice given in accordance with the
provisions of this Article shall be deemed to have been given as of the date
such notice shall have been placed in the United States Postal Service. Rent
shall be paid to Lessor at the same place where a notice to Lessor is herein
required to be directed.
ARTICLE 24 - SUCCESSORS AND ASSIGNS
The terms, conditions and covenants of this Lease shall be binding upon
and shall inure to the benefit of each of the parties hereto, their respective
successors or assigns and shall run with the land.
ARTICLE 25 - RECORDING
This Lease shall not be recorded. However, if either of the parties
hereto desire to record a memorandum of this Lease, Lessor and Lessee agree to
execute and deliver to the other a memorandum of this Lease containing only
minimum requirements, which memorandum may then be recorded in the appropriate
office of the County within which the Demised Premises is located.
ARTICLE 26 - AMENDMENTS
No waivers, alterations, or modifications of this Lease or any
agreements in connection therewith shall be valid unless in writing duly
executed by both Lessor and Lessee and consented to by the Mortgagee.
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ARTICLE 27 - ESTOPPEL CERTIFICATE
Each party hereto agrees that at any time and from time to time during
the term of this Lease, it will promptly, but in no event later than ten (10)
days after request by the other party hereto, execute, acknowledge and deliver
to such other party a certificate stating, to the best of such party's
knowledge, (a) whether or not this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and setting forth any modifications); (b) the date to which Basic
Rent, Additional Rent and other sums payable hereunder have been paid; (c)
whether or not there is an existing default by Lessee in the payment of Basic
Rent or any other sum required to be paid hereunder, and whether or not there is
any other existing default by Lessee with respect to which a notice of default
has been served or of which the signer has Actual Knowledge, and, if there is
any such default, specifying the nature and extent thereof, (d) whether or not
there are any existing setoffs, defenses or counterclaims against enforcement of
the obligations to be performed hereunder existing in favor of the party
executing such certificate; (e) stating that Lessee is in possession of the
Demised Premises or setting forth the parties in possession and identifying the
instruments pursuant to which they took possession; and (f) stating such other
information with respect to the Demised Premises and/or this Lease as may be
reasonably requested. Any such certificate may be relied upon by Lessor and the
Mortgagee and by any potential purchaser from the Lessor or the Mortgagee.
ARTICLE 28 - INVALIDITY OF PROVISIONS
If any term, covenant, condition or provisions of this Lease or the
application thereof to any person or circumstance shall, at any time, or to any
extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provisions of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
ARTICLE 29 - CAPTIONS
The captions appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such articles of this Lease or in any way affect this Lease.
ARTICLE 30 - ENTIRE AGREEMENT
This Lease supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the Demised Premises and
contains all of the covenants, agreements and other obligations between the said
parties in respect to said premises.
ARTICLE 31 - MECHANIC'S LIENS
Lessee shall promptly pay and discharge all costs and expenses of any
work done in or on the Demised Premises by Lessee or its subtenants, and its and
their agents, employees or
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contractors, and shall not do or fail to do any act which shall or may render
the Demises Premises or any part thereof subject to any mechanic's lien or other
lien or security agreement or charge or chattel mortgage or conditional xxxx of
sale or title retention agreement (hereinafter collectively called "Lien"), and
if any Lien be filed against the Demised Premises, any Alterations, or any
portion of any of the foregoing, Lessee shall, at Lessee's own cost and expense,
within twenty (20) days after the filing of any such Lien, promptly take and
prosecute all necessary proceedings to cause the same to be removed of record by
bonding or otherwise; and, in default thereof, Lessor may, in addition to any
other rights and remedies it may have by reason of Lessee's default, cause any
such Lien to be removed or record by payment or bond or otherwise, as Lessor may
elect, and Lessee shall reimburse Lessor as Additional Rent for all costs and
expenses incidental to the removal of any such Lien incurred by Lessor, together
with an administrative charge of ten percent (10%) thereof.
ARTICLE 32 - WAIVER OF TRIAL BY JURY
LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY LITIGATION BROUGHT
BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN CONNECTED WITH
THIS LEASE OR THE DEMISED PREMISES.
ARTICLE 33 - ENVIRONMENTAL MATTERS
(a) Promptly, upon receipt by Lessee of written notice of
any violation of any Environmental Laws with respect to the Demised Premises or
of the presence of Hazardous Substances in any portion of the Demised Premises
in concentrations and conditions that constitute a violation of Environmental
Laws, Lessee shall notify Lessor in writing of such condition. In the event of
such violation, Lessee shall, not later than thirty (30) days after Lessee has
Actual Knowledge of such violation, deliver to Lessor and the Mortgagee a
certificate signed by an Executive Officer advising Lessor of such violation and
at Lessee's sole cost and expense, promptly and diligently undertake any
response, clean up, remedial or other action necessary to remove, cleanup or
remediate the violation in accordance with all Legal Requirements. As soon as
practicable, Lessee shall notify Lessor of Lessee's proposed remedial actions
and, upon completion of remedial action by Lessee, cause to be prepared by an
environmental consultant reasonably acceptable to Lessor a written report
describing the violation and the actions taken by Lessee (or its agents) in
response to such violation in reasonable detail, and a written statement by the
consultant that the violation has been remedied in full compliance with all
applicable Environmental Laws.
(b) Promptly, but in any event within ten (10) days from
the date Lessor or Lessee has Actual Knowledge thereof, Lessor or Lessee, as the
case may be, shall provide to the other written notice of any pending or
threatened claim, action or proceeding involving any Environmental Laws or any
release of Hazardous Substances on or in connection with the Demised Premises.
All such notices shall describe in reasonable detail the nature of the claim,
action or proceeding. In addition, Lessor or Lessee, as the case may be, shall
provide to the other, within ten (10) days of receipt, copies of all written
communications with any governmental authority relating to any actual or
asserted violation of Environmental Laws in connection with the Demised
Premises. Lessor and Lessee shall also promptly provide such
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detailed reports of any such environmental claims as may reasonably be requested
by the other or by the Mortgagee. Failure by the Lessor to provide any such
notices to Lessee shall not affect any of Lessee's obligations under this Lease,
including its obligation hereunder, if any, to remediate any violation of
Environmental Laws.
(c) Lessor or the Mortgagee, or their agents, employees,
contractors, or representatives, shall have the right, but not the duty, at
Lessee's sole cost and expense, to enter upon the Demised Premises to monitor
and inspect any release of Hazardous Substances thereon or any violation, if
any, of any applicable Environmental Laws relating thereto, if after being
required to do so, Lessee fails to contest the allegations surrounding such
violation or commence such remediation promptly thereafter and to continue
diligently to effect such remediation or contest. In exercising its rights
herein, each such party shall use reasonable efforts to minimize interference
with Lessee's business but any such entry shall not constitute an eviction of
Lessee, in whole or in part. If any governmental authority shall ever require
testing to ascertain whether there has been a release or violation of
Environmental Laws, then all of the costs thereof shall be paid by Lessee.
(d) Lessee will not cause or permit the use, release,
generation, treatment, storage, recycling or disposal of any Hazardous
Substances on the Demised Premises or the transportation of Hazardous Substances
to or from the Demised Premises by the Lessee, its sublessees and/or its or
their respective agents, employees, contractors or invitees other than (i) in
compliance with all applicable Environmental Laws and (ii) as necessary to use,
operate and maintain the Demised Premises as is currently or may in the future
be used in the operation of the Lessee's business, in compliance with applicable
Environmental Laws.
(e) Lessee shall comply with all applicable Environmental
Laws now or hereafter applicable to the use, modification, operation,
construction or maintenance of the Demised Premises and Lessee shall have sole
responsibility for all expenses. Lessee covenants that from and after the date
of this Lease it shall not install or permit the installation by the Lessee, its
sublessees, and/or its and their respective agents, employees, contractors and
invitees, of any asbestos-containing materials in or on the Demised Premises and
Lessee shall not construct or permit the construction or installation of any
underground storage tanks or surface impoundments on the Demised Premises other
than in compliance with Environmental Laws and shall cause any Alterations of
the Demised Premises undertaken by, through or under Lessee to be done in a way
so as to prevent exposure of persons working on or visiting the Demised Premises
to Hazardous Substances in excess of safety levels established by any applicable
Environmental Laws and so as not to result in liability under any applicable
Environmental Laws. Lessee agrees that it will not store combustible or
flammable materials on the Property in violation of Environmental Laws.
(f) Lessee shall obtain, at or prior to the time required
by applicable Environmental Laws, all approvals and/or permits necessary for the
full use, operation and maintenance of the Demised Premises and maintain such
approvals and/or permits in full force and effect at all times.
16
(g) Lessee shall and hereby does agree to defend,
indemnify and hold the Mortgagee and Lessor, their officers, directors,
shareholders, partners, beneficial owners, trustees, members and employees,
harmless from and against any and all causes of actions, suits, demands or
judgments of any nature whatsoever, losses, damages, penalties, expenses, fees,
claims, costs (including response and remedial costs), and liabilities,
including, but not limited to, reasonable attorneys' fees and costs of
litigation, arising out of or in any manner connected with (i) any violation of
Environmental Laws, (ii) release or threatened release of or failure to remove
as required by paragraph (a) above, any Hazardous Substances at or from the
Demised Premises or any portion or portions thereof, including any past or
current release and any release or threatened release during the Term, whether
or not arising out of or in any manner connected with Lessee's occupancy of the
Demised Premises during the Term; provided the indemnifications contained herein
shall not apply to the extent the foregoing matters arise out of the willful
misconduct or gross negligence of Lessor or the Mortgagee and are not covered by
the insurance required to be carried by Lessee hereunder.
ARTICLE 34 - FINANCIAL STATEMENTS
Lessee will cause to be delivered to Lessor and the Mortgagee the
following financial statements of Lessee:
(i) for any period that Lessee is a public company, as
soon as practicable, copies of all regular, current or periodic reports
(including reports on Form 10-K, Form 8-K and Form 10-Q) which Lessee is or may
be required to file with the Securities and Exchange Commission or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission;
(ii) if Lessee shall not be a public company required to
file such reports with the Securities and Exchange Commission, then within one
hundred twenty (120) days after the end of each fiscal year, and within sixty
(60) days after the end of any other fiscal quarter, a consolidated statement of
earnings, and a consolidated statement of changes in financial position, a
consolidated statement of stockholders' equity, and a consolidated balance sheet
of Lessee as at the end of each such year or fiscal quarter, in the form
previously accepted by the Mortgagee; and
(iii) annually, and from time to time upon request, a
report of Lessee's sales at the Demised Premises for the prior 12-month period,
on a monthly basis.
ARTICLE 35 - QUIET ENJOYMENT
So long as Lessee is not in default under this Lease, Lessor covenants
that Lessee shall and may at all times peaceably and quietly have, hold and
enjoy the Demised Premises during the Term of this Lease.
ARTICLE 36 - ASSIGNMENT AND SUBLETTING
(a) Lessee may not Transfer its interest in this Lease
and may not sublet the Demised Premises in whole or in part without the prior
written consent of Lessor and Mortgagee,
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and any attempt to do any of the foregoing without such consents shall be null
and void and shall in no event operate to release Lessee from any of its
obligations hereunder. For purposes of this provision, an "assignment" shall
include the transfer of any direct or indirect interests in Lessee.
(b) Notwithstanding the foregoing, upon the occurrence of
a default under this Lease by Lessee, Lessor shall have the right to collect and
enjoy all rents and other sums of money payable under any sublease of any of the
Demised Premises, and Lessee hereby irrevocably and unconditionally assigns such
rents and money to Lessor, which assignment may be exercised upon and after said
default.
ARTICLE 37 - ADVANCES BY LESSOR
If Lessee shall fail to make or perform any payment (other than the
payment of Basic Rent) or act required by this Lease, then, upon ten (10) days'
notice to Lessee (or upon shorter notice or no notice, to the extent necessary
to meet an emergency or a governmental limitation), Lessor may at its option
make such payment or perform such act for the account of Lessee, and Lessor
shall not thereby be deemed to have waived any default or released Lessee from
any obligation hereunder. Amounts so paid by Lessor and all incidental costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with such payment or performance shall constitute Additional Rent and
shall be paid by Lessee to Lessor on demand together with interest thereon at
the rate of interest set forth in Article 3 hereof from the date of demand until
the date of payment.
ARTICLE 38 - NO MERGER
Lessee agrees that there shall be no merger of this Lease or of any
sublease under this Lease or of any leasehold or subleasehold estate hereby or
thereby created with the fee or any other estate or ownership interest in the
Demised Premises or any part thereof by reason of the fact that the same entity
may acquire or own or hold, directly or indirectly, (a) this Lease or any
sublease or any leasehold or subleasehold estate created hereby or thereby or
any interest in this Lease or any such sublease or in any such leasehold or
subleasehold estate, and (b) the fee estate or other estate or ownership
interest in the Demised Premises or any part thereof.
ARTICLE 39 - MISCELLANEOUS
No failure, delay, forbearance or indulgence on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, or as an acquiescence in any breach, nor shall any single or partial
exercise of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. This
Lease and the rights and obligations in respect hereof shall be governed by, and
construed and interpreted in accordance with, the laws of the state within which
the Demised Premises is located. This Lease may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute but one and the same instrument.
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ARTICLE 40 - SECURITY DEPOSIT
Lessee has paid an amount equal to Basic Rent for two full calendar
months (the "Security Deposit") to Lessor upon the delivery of this Lease as
security for the full and faithful performance by Lessee of each and every term,
provision, covenant and condition of this Lease on the part of Lessee to be
performed ("Lessee's obligations hereunder"). Lessee acknowledges that the
Security Deposit has been delivered by Lessor to Mortgagee as additional
security for Lessor's obligations secured by the Mortgage. If Lessee defaults in
respect of any of Lessee's obligations hereunder, including but not limited to
payment of Basic Rent or Additional Rent, Lessor may, but shall not be required
to, use, apply or retain the whole or any part of the security for the payment
of any Basic Rent and Additional Rent in default or to Lessor's damages arising
from such default, whether such damages or deficiency accrue before or after
summary proceedings or other reentry by Lessor. If Lessee shall fully and
faithfully comply with all of Lessee's obligations hereunder the security, or
any balance thereof, shall be returned to Lessee after the time fixed as the
expiration of the Term including any extension thereof) and after the removal of
Lessee and surrender of possession of the Demised Premises to Lessor. Whenever
and as often as the amount of the security held by Lessor shall be diminished by
Lessor's application thereof, Lessee shall, within ten (10) days after Lessor's
request therefor, deposit additional money with Lessor sufficient to restore the
security to the aforesaid original amount. In the absence of evidence
satisfactory to Lessor of an assignment by Lessee of the right to receive the
security, or the remaining balance thereof, Lessor may return the security to
the original Lessee, regardless of one or more assignments of this Lease. In
case of a sale or transfer of Lessor's interest, in the Demised Premises or any
other cessation of Lessor's interest therein, whether in whole or in part,
Lessor (or any successor to Lessor's interest) may pay over any unapplied part
of said security to any successor lessor hereunder and from and after such
payment Lessor (or such successor) shall be relieved of all liability with
respect thereto. The Lessor shall not be required to segregate the Security
Deposit or to pay interest thereon.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have set their hands to this
instrument the day and year first above written.
LESSOR: LESSEE:
REC LC, LLC HOLIDAY RV SUPERSTORES, INC.
By: By:
-------------------------- ---------------------------
Name: Xxxx X. Xxxxxxxx Name:
---------------------------
Title: Chief Financial Officer Title:
and Treasurer ---------------------------
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APPENDIX I
DEFINITIONS
Actual Knowledge by the Lessee with respect to any matter means
knowledge of such matter by an Executive Officer after due inquiry. Actual
Knowledge shall be presumed conclusively as to the content of any notice to
Lessee made in accordance with the provisions of this Lease.
Additional Rent. All amounts which Lessee is required to pay or
discharge pursuant to this Lease in addition to Basic Rent (including, without
limitation, amounts payable on account of Taxes pursuant to Article 11 and on
account of insurance premiums pursuant to Article 13 and any amounts payable as
liquidated damages pursuant to Article 16) together with every penalty, overdue
interest and cost which may be added for nonpayment or late payment thereof
Alteration is defined in Article 7.
Basic Rent is defined in Article 3.
Change of Control means
(a) The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (i) the
then outstanding shares of common stock of the Lessee (the "Outstanding Common
Stock") or (ii) the combined voting power of the then outstanding voting
securities of the Lessee entitled to vote generally in the election of directors
(the "Outstanding Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control: (x) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by Lessee
or any of its subsidiaries, (y) any acquisition by any corporation with respect
to which, following such acquisition, more than 85% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors, is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were beneficial owners, respectively of the Outstanding Common
Stock and Outstanding Voting Securities in substantially the same proportions as
their ownership, immediately prior to such acquisition, of the Outstanding
Common Stock and Outstanding Voting Securities, as the case may be or (z) any
acquisition by an individual, entity or group that, pursuant to Rule 13d-1
promulgated under the Exchange Act, is permitted to, and actually does, report
its beneficial ownership of Outstanding Common Stock and Outstanding Voting
Securities on Schedule 13G (or any successor Schedule); provided further, that
if any such individual, entity or group subsequently becomes required to or does
report its ownership of Outstanding Common Stock and Outstanding Voting
Securities on Schedule 13D (or any successor Schedule) then, for purposes of
this Section 2(a), such individual, entity or group shall be deemed to have
first acquired, on the first date on which such
21
individual, entity or group becomes required to or does so file, beneficial
ownership of all of the Outstanding Common Stock and Outstanding Voting
Securities beneficially owned by it on such date; or
(b) Individuals who, as of the date hereof, constitute Lessee's
Board of Directors (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Lessee's Board of Directors; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by Lessee's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents;
or
(c) There is consummated a reorganization, merger or
consolidation, in each case, with respect to which all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Common Stock and Outstanding Voting Securities immediately prior
to such reorganization, merger or consolidation, beneficially own, directly or
indirectly, less than 85% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation (or any parent thereof) resulting from such
reorganization, merger or consolidation in substantially the same proportions as
their ownership, immediately prior to such reorganization, merger or
consolidation of the Outstanding Common Stock and the Outstanding Voting
Securities, as the case may be; or
(d) Approval by the shareholders of Lessee of a complete
liquidation or dissolution of Lessee or the consummation of the sale or other
disposition of all or substantially all of the assets of Lessee, other than to a
corporation with respect to which, following such sale or other disposition,
more than 85% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be.
Demised Premises is defined in Article 1.
Destruction is defined in Article 9.
Environmental Laws means and includes but shall not be limited to the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), as amended
by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. ss. 9601 et
seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986,
the Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et.
22
seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601, et seq.) Clean Air
Act (42 U.S.C. ss. 7401 et seq.), the Clean Water Act (33 U.S.C. ss. 1251 et
seq.) the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ss. 136
et seq.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.) and
all applicable federal, state and local environmental laws, including
obligations under the common law, ordinances, rules, regulations and
publications, as any of the foregoing may have been or may be from time to time
amended, supplemented or supplanted, and any other federal, state or local laws,
including obligations under the common law, ordinances, rules, regulations and
publications, now or hereafter existing relating to regulation or control of
Hazardous Substances or environmental protection, health and safety.
Executive Officer means the President, Executive Vice President, Chief
Financial Officer, Treasurer, Vice President or Director of Real Estate or if
such office does not exist, its closest equivalent.
Hazardous Substances means (i) those substances included within the
definitions of identified as "hazardous substances," "hazardous materials," or
"toxic substances" in or pursuant to, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. ss.
9601 et seq.) (CERCLA), as amended by Superfund Amendments and Reauthorization
Act of 1986 (Pub. L. 99-499, 100 Stat. 1613) (XXXX), the Resource Conservation
and Recovery Act of 1976 (42 U.S.C., ss. 6901 et seq.) (RCRA), the Occupational
Safety and Health Act of 1970 (29 U.S.C. ss. 651 et seq.) (OSHA), and the
Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801 et seq., and in the
regulations promulgated pursuant to said laws, all as amended; (ii) those
substances listed in the United States Department of Transportation Table (40
CFR 172.101 and amendments thereto) or by the Environmental Protection Agency
(or any successor agency) as hazardous substances (40 CFR Part 302 and
amendments thereto); (iii) any material, waste or substance which is or contains
(A) petroleum, including crude oil or any fraction thereof, natural gas, or
synthetic gas usable for fuel or any mixture thereof, (B) asbestos, (C)
polychlorinated biphenyls, (D) designated as "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. ss. 1251 et seq., (33 U.S.C.
ss. 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C.
ss. 1317); (E) flammable explosives; (F) radioactive materials; and (iv) such
other substances, materials and wastes which are or become regulated as
hazardous, toxic or "special wastes" under applicable local, state or federal
law, or the United States government, or which are classified as hazardous,
toxic or as "special wastes" under federal, state or local laws or regulations.
Improvements is defined in Article 1.
Indemnified Parties is defined in Article 20.
Late Charge is defined in Article 3.
Legal Requirements is defined in Article 11.
Lessee's Loss is defined in Article 9.
Lien is defined in Article 31
23
Mortgage means a mortgage/deed of trust and/or security agreement dated
on or about the date hereof made by Lessor for the purchase of the Property, as
such mortgage/deed of trust and/or security agreement may be modified,
supplemented, split, consolidated, severed and/or restated from time to time and
any first mortgage loan replacing or refinancing the Mortgage, regardless of the
amount thereof.
Mortgagee means the holder of the Mortgage.
Permitted Encumbrances means, with respect to the Demised Premises: (a)
rights reserved to or vested in any municipality or public authority to condemn,
appropriate, recapture or designate a purchaser of the Demised Premises; (b) any
liens thereon for taxes, assessments and other governmental charges and any
liens of mechanics, materialmen and laborers for work or services performed or
material furnished in connection with the Demised Premises, which are not due
and payable, or the amount or validity of which are being contested as permitted
by Article 11 hereof and do not arise as a result of acts of Lessor, (c)
easements, rights-of-way, servitudes, zoning laws, use regulations, and other
similar reservations, rights and restrictions and other minor defects and
irregularities in the title to the Demised Premises existing on the date of this
Lease, (d) the lien of the Mortgage and any assignment of this Lease as further
security for the note or notes secured by the Mortgage; (e) all other matters
affecting title existing on the date of this Lease as set forth in Exhibit A.
Person means any individual, corporation, partnership, limited
liability company, joint venture, joint stock company, trust, trustee of a
trust, unincorporated organization or government or governmental authority,
agency or political subdivision thereof.
Taxes is defined in Article 11.
Term is defined in Article 2 and includes any renewal options that are
exercised.
Transfer means an assignment, mortgage, pledge, transfer, sublease,
license or other encumbrance or conveyance (voluntarily, by operation of law or
otherwise) of this Lease or the Demised Premises or any right, title or interest
in or created by this Lease or the Demised Premises.
24
EXHIBIT A
Permitted Encumbrances
1. Utility easements as shown on plat number 2486, filed of
record February 1, 1994, recorded in Book 18, Pages 7-8, Miscellaneous Records.
2. Easement to the City of Las Cruces, filed of record on
December 28, 1966, recorded in Book 73, Page 89, Miscellaneous Records.
3. Easement to El Paso Electric Company and Mountain States
Telephone and Telegraph Company, filed of record on January 5, 1971, recorded in
Book 92, Pages 51-55, Miscellaneous Records.
4. Easement to El Paso Electric Company and Mountain States
Telephone and Telegraph Company, filed of record on July 25, 1988, recorded in
Book 230, Pages 669-670, Miscellaneous Records.
5. Easement to El Paso Electric Company and Mountain States
Telephone and Telegraph Company, filed of record on November 10, 1988, recorded
in Book 233, Pages 716-721, Miscellaneous Records.
6. Easement to El Paso Electric Company and Mountain States
Telephone and Telegraph Company, filed of record on November 2, 1964, recorded
in Book 63, Pages 320, Miscellaneous Records.
7. Easement to El Paso Electric Company and Mountain States
Telephone and Telegraph Company, filed of record on November 14, 1994, recorded
in Book 311, Pages 138-139, Miscellaneous Records.
1
