EXHIBIT 10.6
LEASE
THIS AGREEMENT, made this 14th, day of June, 1991, by and between XWAY,
Inc. d/b/a Interstate Park, hereinafter called "Landlord," and First Team
Management, Inc., whose principal place of business is located in Orange County,
Florida, hereinafter called "Tenant."
1. PREMISES
a. Landlord leases and demises to Tenant for any lawful
purpose, and Tenant hereby leases and rents from Landlord the following
described premises, hereinafter sometimes referred to as the "Demised Premises,"
located in Orange County, Florida, and more particularly described on Exhibit
"A" attached hereto and made a part hereof, together with all incidental rights
and privileges in and about the Demised Premises as may be necessary or
convenient to Tenant's business.
b. The above-described Demised Premises includes all buildings,
structures and other improvements constructed and to be constructed, if any,
thereon, and all easements, rights and appurtenances thereto.
2. TERM OF LEASE
a. The primary term and duration of this lease shall be for a period
of five (5) years (plus the first partial month, if any), commencing from the
commencement date herein provided.
b. The commencement date shall be July 15th, 1991.
c. Tenant shall have until the commencement date (here referred to as
the "Inspection Period"), to determine, in Tenant's sole and absolute
discretion, that the Demised Premises are suitable and satisfactory for Tenant's
intended use. In the event Tenant notifies Landlord in writing within the
Inspection Period that Tenant does not intend to proceed with the leasing of the
Demised Premises, then this Agreement shall automatically terminate and be null
and void and neither party shall have any further liability or obligation
hereunder.
3. RENT
a. Tenant's liability for rent shall commence to accrue on the
commencement date as defined in paragraph 2b above, provided that this lease has
not been terminated prior thereto. If the rent commencement date begins on a
date other than the first of the month, the rent for such partial initial month
shall be prorated and shall be due and payable on the first day of the first
full calendar month of the term hereof. The annual minimum rent to be paid by
Tenant to Landlord for the first twelve (12) months of the term of this lease
shall be $92,984 plus Florida sales tax. Such rental shall be payable in equal
monthly installments on the first day of each calendar month during the term
hereof.
The parties further agree that the annual minimum rent shall be increased yearly
to reflect fluctuations in the consumer price index. 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,
hereinafter referred to as the "Price Index." The Average of the Price Index for
the three (3) months prior to the commencement date shall be taken as the Basic
Standard and that figure will therefore be the Basic Standard, as the term is
hereinafter used. These adjustments shall be made in the rent by multiplying the
initial annual minimum rent charged hereunder by a fraction, the numerator of
which shall be the new Price Index figure, and the denominator of which shall be
the Basic Standard. The new Price Index figure to be used shall be the Price
Index for the month immediately preceding the relevant anniversary date of the
Lease, provided however, that such adjustment shall not increase the annual
minimum rent more than eight percent (8%) during any twelve (12) month period.
In the event that the Price Index ceases to use the 1982-84 average of 100 as
the basis of calculation, or if a substantial change is made in the terms or
particular items contained in the Price Index, then the Price Index shall be
adjusted to the figure that would have been arrived at, had the change in the
manner of computing the Price Index in effect at the commencement of the full
term of this Lease not be effected. In the event that such Price Index (or a
successor or substitute Price Index) is not available, a reliable governmental
or other nonpartisan publication evaluating the information theretofore used in
determining the Price Index shall be used.
b. All payments of rent hereunder shall be made to Landlord as the
same become due in lawful money of the United States, at such places as
hereinafter may be designated. Nothing contained in this lease shall be
construed to be or create a partnership or joint venture between Landlord and
Tenant.
c. In addition to the payments required herein as rent to the
Landlord, the Tenant shall also pay the following:
(1) All association fees, occupational licenses and other
licenses necessary in the operation of the business to be carried on in the
Demised Premises.
(2) All utility services provided to the Demised Premises,
including, but not limited to, water, gas, electric, and telephone, as they from
time to time shall accrue and be due and payable during the term of this lease.
(3) Tenant shall pay to the appropriate governmental
agencies ad valorem taxes and special assessments with respect to the Demised
Premises and the improvements thereon during the term of this lease or any
extension thereof. It is further understood and agreed that all ad valorem taxes
assessed during the first and last years of the term of this lease shall be
prorated and that Tenant shall only be liable for such portions of such taxes
assessed for said first and last years as its months of occupancy during any of
said years shall bear to the total of twelve (12) months. In the
event of the imposition of any special assessment or assessments which may be
paid in annual installments, at Tenant's option exercisable by written notice to
Landlord, Landlord shall advise the appropriate governmental agency of its
intention to elect payment in annual installments and Tenant shall be liable for
only such annual installments as shall be due and payable during the term of
this lease, or, if the option to extend shall be exercised, the extended term
hereof. Should Tenant fail to pay any tax or special assessment when due and
payable, Landlord may, if Landlord so desires, pay the same and the amount
together with any penalties which Landlord may have paid, shall immediately
become due and payable to Landlord as additional rent. Tenant shall have the
right in its name or in Landlord's name, whichever shall be appropriate, but at
its own cost and expense, to file and prosecute applications for reduction of
assessed valuation and to institute legal proceedings for the reduction thereof.
In no event shall Tenant be liable for payment of any income, estate or
inheritance taxes imposed upon the Landlord or the estate of the Landlord with
respect to the Demised Premises. Landlord agrees to promptly deliver copies of
all tax notices and tax bills to the Tenant so that Tenant may timely contest
any proposed tax increase and promptly pay the tax due as to take advantage of
any discounts allowed for timely payment. Notwithstanding anything to the
contrary herein, this Lease shall be deemed a triple net lease.
Landlord shall use reasonable efforts to obtain from the taxing
authorities a separate assessment for the Demised Premises if said premises are
part of a larger parcel. If such separate assessment shall be obtained, the real
estate taxes payable by Tenant shall be paid by Tenant directly to the taxing
authority. If Landlord shall be unable to obtain such separate assessment, and
the tax xxxx covering the Demised Premises shall include property in addition to
the Demised Premises, Tenant shall pay its proportionate share of said tax xxxx
to Landlord, which proportionate share shall equal the product obtained by
multiplying the amount of the tax xxxx by a fraction, the numerator of which is
the acreage contained within the Demised Premises and the denominator of which
is the total land owned by the Landlord and assessed in the tax xxxx less the
fair market value of any improvements not located on the Demised Premises.
Tenant shall pay its share within thirty (30) days after Landlord notifies
Tenant of the amount thereof and furnishes Tenant with a copy of the tax xxxx
and the calculations by which Tenant's share has been determined. Landlord shall
pay said tax xxxx when due. In no event shall Tenant be liable for interest or
penalties, if Tenant shall pay such taxes within such thirty (30) day period.
Landlord will furnish Tenant with a copy of the receipted tax xxxx promptly
after demand therefor.
d. The Tenant shall have a five (5) year option to renew this lease
upon the terms and conditions as herein provided, providing that it shall give
Landlord notice in writing at least one hundred eighty (180) days prior to the
expiration of the primary term of this lease, that it intends to renew the same.
The extension shall be upon the same terms and conditions as the primary term of
the Lease; provided, however, that the annual minimum rental shall continue to
be adjusted pursuant to the provisions of Section 3.
4. CONSTRUCTION OF IMPROVEMENTS -- REPAIRS
a. The Tenant, during the term of this lease or any extension or
renewal of this lease, may, at its expense, make such improvements to the
Demised Premises as shall be reasonably desired by Tenant (the "Improvements").
Tenant shall notify Landlord of its desire to have such Improvements constructed
and the parties shall mutually agree upon the plans and specifications for such
Improvements. The Tenant agrees that all damage or injury done to the Demised
Premises by the Tenant or by any person who may be in or upon the Demised
Premises, except the Landlord, Landlord's agents, servants and employees, shall
be repaired by the Tenant at its expense. The Tenant agrees at the expiration of
this lease or upon the earlier termination thereof, to quit and surrender said
Demised Premises in good condition and repair, reasonable wear and damage by act
of God or fire or other causes beyond the control of Tenant excepted.
b. Tenant shall be permitted to install, use on and about, and remove
from the Demised Premises at any time or times all such buildings, additions to
buildings, equipment, exterior and interior signs, trade fixtures, and other
personal property, and make such alterations and improvements, at its cost, in
and about the Demised Premises as it may desire.
c. Tenant shall maintain the Improvements on the Demised Premises in
good structural condition and repair, shall make all structural repairs and
replacements necessitated by any cause other than Landlord's negligence, and
shall make all repairs or replacements necessitated by any peril covered by a
Standard Fire and Extended Coverage insurance policy to the extent of the
proceeds received from such insurance policy, whether or not caused by
Landlord's negligence.
Tenant shall have no authority to create or place any lien or
encumbrance of any kind whatsoever upon, or in any manner to bind, the interest
of Landlord in the Demised Premises, and Tenant covenants and agrees promptly to
pay all sums legally due and payable by it on account of any labor performed by
it on the Demised Premises upon which any lien is or can be asserted against the
Demised Premises or the improvements thereon.
5. TIME OF THE ESSENCE
It is agreed that time is of the essence in respect to the provisions
contained in this lease.
6. DELIVERY OF POSSESSION
If for any reason the Landlord cannot deliver possession of the Demised
Premises with the Improvements to the Tenant on the commencement date this lease
shall not be voided, but the term hereof shall commence at such time as the
Landlord is able to deliver possession, provided, however, that if the Landlord
cannot deliver possession of the leased property by August 1, 1991 the Tenant
shall be entitled to terminate this lease.
7. WARRANTIES AND TITLE INSURANCE
a. Tenant shall be entitled to receive a good and marketable first
Leasehold interest in and to the Demised Premises and Improvements free and
clear of all liens, encumbrances and other exceptions, except such as Tenant may
waive. This lease is subject to Tenant, at its expense, being able to procure,
within thirty (30) days of the date hereof, a leasehold title insurance binder
from a reputable title insurance company satisfactory to Tenant agreeing to
issue a valid title insurance policy insuring Tenant's leasehold interest. Said
title binder must show that Landlord's title to the Demised Premises is good and
marketable, free, clear and unencumbered, and subject to no liens, encumbrances
or exceptions (other than current real estate taxes not delinquent), except such
as Tenant may, at its option, waive, and that Tenant has a valid and binding
first leasehold interest without exception other than such taxes and waived
exceptions. Without in any way limiting the generality of the foregoing, said
title binder shall contain no exceptions for (i) rights or claims of parties in
possession not shown by the public records, (i) boundary line disputes,
encroachments or other exceptions to be covered by the survey or surveyor's
certificate required hereinbelow, (iii) easements or claims of easements not
shown by the public records, (iv) any lien or right to a lien for services,
labor or material heretofore or hereafter furnished, imposed by law and not
shown by the public records, and (v) taxes or special assessments which are not
shown as existing liens by the public records. In the event the binder or
commitment fails to show such good and marketable title, subject only to the
aforesaid permitted exceptions, Tenant shall notify Landlord of the exceptions
or defects in such title within ten (10) days of its receipt of said binder and
Landlord shall have sixty (60) days to cure such exceptions and defects and
render the title marketable; provided that all such exceptions and defects shall
be cured no later than the commencement date hereunder, unless extended by
Tenant to permit Landlord additional time in which to cure. Tenant shall also
have the right to attempt to cure at its expense any exceptions or defects in
title, but there shall be no obligation on Tenant to do so. Landlord shall
diligently pursue the curing of title exceptions and defects, the satisfaction
of all conditions and requirements hereunder and shall cooperate with Tenant in
the satisfaction of conditions and elimination of other difficulties. In the
event that Landlord is unable to cure defects in title by the commencement date,
Tenant shall have the right to terminate this lease and the parties hereto shall
thereafter be relieved of any obligations, liabilities or responsibilities
arising hereunder.
b. Landlord covenants and warrants that Landlord has good and
marketable title in fee simple to the Demised Premises free and clear of all
liens, encumbrances and easements, except with respect to the existing mortgage
to Southeast Bank, N.A. which shall not be considered a title defect pursuant to
7a above or any subsequent mortgage, provided however, during the term of this
lease, Landlord shall not increase the amount of indebtedness on the Demised
Premises in excess of the purchase option contained hereinbelow, and has full
power and authority to make this lease. Tenant shall have and enjoy full, quiet
and peaceful possession of the Demised Premises, their appurtenances and all
rights and privileges incidental thereto during the term hereof and all
extensions and renewals thereof.
c. Landlord has no knowledge of any anti-pollution, environmental
laws, rules,
regulations, ordinances, orders of directives which would hinder, prevent or
substantially obstruct the construction, access to or operation of an automobile
dealership.
8. COMPLIANCE WITH LAWS AND ORDINANCES
a. Tenant shall comply with all federal, state, county and city laws
and ordinances and all rules and regulations of any duly constituted authority
present and future affecting or respecting the use or occupancy of the Demised
Premises by Tenant, or the business at any time thereon transacted by Tenant or
any assignee or subtenant of Tenant, after the commencement of the term of this
lease.
b. Tenant shall at all times keep the Demised Premises, the building
thereon and all appurtenances in a clean and sanitary condition, according to
the applicable statutes, city ordinances, and the directions or regulations of
the proper public authorities.
9. COVENANT OF QUIET ENJOYMENT
The Tenant, upon the payment of the rent herein reserved and upon the
performance of all of the terms of this lease, shall at all times during the
lease term and during any extension or renewal term peaceably and quietly enjoy
the Demised Premises without any disturbance from the Landlord or from any other
person claiming through the Landlord.
10. TERMINATION
The Tenant shall vacate the Demised Premises in the good order and
repair in which such premises are at the time of commencement of the term
hereof, ordinary wear and tear, depreciation, damage and loss from the elements,
loss covered by insurance, and other occurrences beyond the reasonable control
of Tenant excepted, and shall remove all of its property therefrom so that the
Landlord can repossess the Demised Premises not later than noon on the day upon
which this lease or any extension thereof ends, whether upon notice or by
holdover or otherwise. The Landlord shall have the same rights to enforce this
covenant by ejectment and for damages or otherwise as for the breach of any
other condition or covenant of this lease. The Tenant may at any time prior to
our upon the termination of this lease or any renewal or extension thereof
remove from the Demised Premises all materials, equipment and property of every
other sort or nature the cost of which was paid for by the Tenant, provided that
such property is removed without substantial injury to the Demised Premises. No
injury shall be considered substantial if it is promptly corrected by
restoration to the condition prior to the installation of such property, if so
requested by the Landlord. Any such property not removed shall become the
property of the Landlord.
11. INSURANCE
a. The Tenant shall, at its sole cost and expense, cause to be placed
in effect immediately upon commencement of the term of this lease, and shall
maintain in full force and effect
during said term (i) fire and extended coverage insurance covering all
Improvements, structures and their contents on the Demised Premises on a full
replacement cost basis but in no event less than the mortgage and any other debt
financing on the Demised Premises (no deduction for depreciation), Insuring all
risks of direct physical loss, and excluding unusual perils such as nuclear
attack, earth movement, flood and war, with deductibles or self insurance
consistent with insurance industry practices, and (ii) bodily injury and
property damage comprehensive public liability insurance with a combined single
limit of not less than $1,000,000.00 including deductibles or self insurance
consistent with insurance industry practices.
b. The Tenant shall deliver to Landlord a duplicate original of each
such policy, or in lieu thereof, a certificate issued by the carrier. Each such
policy or certificate shall provide that the same shall not be cancelled without
at least ten (10) days prior written notice to Landlord, and shall name Landlord
any mortgagee as an additional insured thereunder.
12. UTILITIES
The Tenant agrees to pay for all water, fuel, gas, oil, heat,
electricity, power, materials, and services which may be furnished to it or,
used by it in, or about the Demised Premises and to keep said Demised Premises,
free and clear of any lien, or encumbrance of any kind whatsoever created by
Tenant's act or omission.
13. CONDEMNATION
a. The parties hereto agree that, should the whole of the Demised
Premises be taken or condemned by any competent authority for any public or
quasi-public use or purpose during the term of this lease and prior to the
Tenant's exercise of its option to purchase the Demised Premises, this lease
shall terminate as of the time when possession thereof is required for public
use and from that day on the parties shall be released from further obligations
hereunder. Tenant reserves unto itself the right to prosecute its claim for an
award based upon its leasehold interest for such taking, without impairing any
rights of Landlord for the taking.
In the event that a part of the Demised Premises shall be taken or
condemned and (a) the part so taken includes the Improvements on the Demised
Premises or any part thereof, or (b) the part so taken shall remove from the
Demised Premises ten percent (10%) or more of the front depth of the parking
area thereof or more than a depth of ten (10) feet, whichever is greater, or (c)
the part so taken shall consist of twenty percent (20%) or more of the total
parking area, or (d) such partial taking shall result in cutting off direct
access from the Demised Premises to any adjacent public street or highway, then
and in any such event, the Tenant may, at any time either prior to or within a
period of ninety (90) days after the date when possession of the Demised
Premises shall be required by the condemning authority, elect to terminate this
lease or, Tenant may, as an alternative to such termination of this lease, elect
to purchase the Demised Premises in accordance with its purchase option, except
that there shall be deducted from the purchase price to be paid for the Demised
Premises all of the Landlord's award from the condemnation proceeding. In the
event that
the means of ingress and egress to the Demised Premises are in any way blocked
or partially blocked as a result of any road construction or other improvements,
Landlord agrees to waive all of Tenant's obligations during such period of
construction or improvement.
b. In the event of a taking which does not give rise to an option to
terminate or an option to purchase the Demised Premises, or in the event of a
taking which does give rise to such options but Tenant does not elect to
exercise same, Landlord shall, to the extent of Landlord's award from such
taking (which word "award" shall include any settlement, or purchase price under
a sale in lieu of condemnation), promptly restore, replace or repair the Demised
Premises to the same condition as existed immediately prior to such taking
insofar as is reasonably possible. If the award shall exceed the amount spent or
to be spent promptly to effect such restoration, repair or replacements, such
excess amount shall be divided between Landlord and Tenant so that Tenant shall
receive a portion of the award which shall be attributable to (i) the value of
the trade fixtures lost and/or damaged as a result of the condemnation; (ii) the
cost of removal of the fixtures, equipment and inventory; (iii) that percentage
of the award attributable to the value of the improvements on the Demised
Premises the cost of which was contributed by the Tenant; and (iv) the value of
Tenant's leasehold estate hereunder had the property not been condemned.
14. ASSIGNMENT AND SUBLETTING
The Tenant may assign this lease or let or underlet the whole or any
part of said Demised Premises without the prior consent of the Landlord. Any
such assignment or subletting shall not relieve Tenant of its obligations under
this lease.
15. HOLDING OVER
In the event Tenant continues to occupy the Demised Premises after the
last day of the term hereby created, or after the last day of any extension of
said term, and the Landlord elects to accept rent thereafter, a tenancy from
month to month only shall be created and not for any longer period.
16. WAIVER OF SUBROGATION
Landlord and Tenant do hereby waive any and all claims against the
other for damage to or destruction of any improvements upon the Demised Premises
(whether or not resulting from the negligence of Tenant) which is covered by
insurance which Tenant is obligated to carry under the terms of this lease;
provided, however, that this waiver shall not be applicable if it has the effect
of invalidating the Landlord's or Tenant's insurance coverage.
17. RELATIONSHIP OF PARTIES
It is understood and agreed that the relationship of the parties hereto
is strictly that of Landlord and Tenant and that this lease shall not be
construed as a joint venture or partnership. The Tenant is not and shall not be
deemed to be the agent or representative of the Landlord.
18. RIGHT TO PURCHASE
a. At any time during the term of the lease, Tenant shall have the
option to purchase the Landlord's interest in the Demised Premises upon thirty
(30) days' prior written notice to Landlord. The cash purchase price to be paid
by Tenant to Landlord shall be the amount obtained using the following formula:
10 x Net Rental = Purchase Price
As used herein, the term "Net Rental" shall be defined as the annual
minimum rental due from Tenant to Landlord during the year in which the Tenant
exercises its option to purchase. The Landlord shall convey the Demised Premises
to the Tenant free and clear of all liens and encumbrances.
b. EXERCISE OF OPTION. If the Tenant elects to exercise the option
granted herein, it shall furnish at least thirty (30) days advance written
notice to Landlord.
c. SURVEY. At any time while this lease is in effect, Tenant may have
the Demised Premises surveyed at Tenant's sole cost and expense. Landlord agrees
to deliver a copy of any surveys in Landlord's possession upon request by
Tenant.
d. EXPENSES, PRORATION AND CONVEYANCE. The Landlord shall pay for
documentary stamps on the Deed and the Tenant shall pay for recording the Deed.
At closing Tenant shall deliver the cash required to close and Landlord shall
convey title to Tenant by general warranty deed.
e. CLOSING DATE. This option shall be closed at the offices of
Landlord's attorney not later than one hundred twenty (120) days after notice of
exercise.
f. CLOSING PROCEDURE. At the Closing, the parties shall deliver the
following duly executed documents and funds:
(1) By Landlord:
(i) a statutory warranty deed conveying fee simple
title to the Demised Premises to Tenant.
(ii) a no-lien affidavit in a form satisfactory to
Tenant's attorney.
(iii) an Owner's Title Commitment showing no change,
except for the elimination of the outstanding first mortgage to Southeast Bank,
N.A. or any subsequent Lender, from the Commitment to be issued under paragraph
7 in the amount of the purchase price.
(iv) such other instruments and documents provided in
this option and as may be reasonably required in order to consummate the
transaction herein contemplated.
(2) By Tenant:
(i) a certified check or a cashier's check payable to
the order of Landlord for the cash to close or a wire transfer of said funds to
a bank account designated by Landlord.
g. MEMORANDUM OF OPTION. Simultaneously with the execution of this
lease the parties hereto shall execute a Memorandum of Option Agreement solely
for the purpose of recording in the public records.
19. PERSONAL PROPERTY
The Landlord acknowledges that Landlord has no interest in any personal
property or equipment or furniture and fixtures which may be installed by the
Tenant upon the Demised Premises, and the Landlord agrees in the future to
furnish the Tenant, upon request, such Landlord's Waiver or Mortgagee's Waiver
or similar document as may be reasonably required by an institutional lender or
equipment lessor in connection with the Tenant's acquisition or financing
respecting such personal property, equipment, furniture and fixtures. The Tenant
shall have the right to remove same at the termination of this lease, and,
notwithstanding anything to the contrary contained in this lease, Tenant shall
be permitted five (5) days after the effective date of termination of the term
or any renewal or hold-over term within which to accomplish the removal, and
shall be obligated to repair any damage caused by removal.
20. DEFAULT AND INSOLVENCY
a. Default in the performance of any covenant, agreement, obligation
or condition herein, or breach of any warranty or representation herein,
voluntary institution of any insolvency proceedings or steps, as debtor or
insolvent, whether such default, breach or institution be on the part of Tenant
or Landlord, or involuntary insolvency proceedings brought against either Tenant
or Landlord which are not dismissed within sixty (60) days, shall entitle the
other party, at its option, to terminate this lease, if, after giving notice by
such other party to the offending party of such intention to terminate, setting
forth the grounds therefor, the offending party does not within thirty (30) days
take prompt and diligent steps to remedy such ground or grounds of termination.
The party which has the option of terminating this lease under the provisions of
the preceding sentence may, at its option, and in lieu of its other rights and
remedies, correct such default and charge the reasonable cost thereof to the
offending party, which said charge shall constitute a legal and valid debt of
the party so charged. In the event of any default under this lease by Landlord,
Tenant may after obtaining a judgment against Landlord, without being judged in
default hereunder, withhold payments of rent or other sums due Landlord by
Tenant, and apply same to cure any such default by Landlord. Upon any such
termination for any default of Tenant, Landlord, its agent or attorney, shall
have the right, without further notice or demand, to reenter and remove all
persons and Tenant's
property therefrom without being deemed guilty of any manner of trespass, or
Landlord, its agent or attorney, may resume possession of the Demised Premises
and re-let the same for the remainder of the term at the best rent Landlord, its
agent or attorney, may obtain, making reasonable efforts in connection
therewith, for the account of Tenant which shall make good any deficiency. In
addition to the foregoing rights, each party shall have such other and further
rights as are allowed by law or in equity. Failure to exercise any right
hereunder on any one or more occasions shall not be .deemed a waiver of such
right or any subsequent right. In the event either party is in default in the
performance of any term, covenant, agreement or condition contained in this
lease, the defaulting party shall reimburse the non-defaulting party for all
costs and expense, including without limitation, court costs and reasonable
attorneys' fees incurred by it in protecting the interests, whether or not
litigation is involved.
21. SUBORDINATION
a. The Tenant shall subordinate its interest in the Demised Premises
to the lien of any first mortgage placed upon the Demised Premises to finance
the cost of construction of the Improvements and to all terms, conditions and
provisions thereof, to all advances made, and to any renewal, extensions,
modifications or replacement thereof.
b. If the lease is in full force and effect and there are no defaults
hereunder on the part of the Tenant, the right of possession of Tenant to the
Demised Premises and Tenant's rights arising out of this lease shall not be
affected or disturbed by the mortgagee in the exercise of any of its rights
under the mortgage or the note secured thereby, nor shall Tenant be named as a
party defendant to any foreclosure of the lien or mortgage, nor in any other way
be deprived of its rights under this lease. In the event that the mortgagee or
any other person acquires title to the Demised Premises pursuant to the exercise
of any remedy provided for in the mortgage, this lease shall not be terminated
or affected by said foreclosure or sale or any such proceeding, and the
mortgagee shall agree that any sale of the Demised Premises pursuant to the
exercise of any rights and remedies under the mortgage, or otherwise, shall be
made subject to this lease and the rights of the Tenant hereunder. Tenant agrees
to attorn to the mortgagee or such person as its new Landlord and the lease
shall continue in full force and effect as a direct lease between Tenant and
mortgagee or such other person upon all the terms, covenants and agreements set
forth in the lease.
22. ESTOPPELS
Landlord and Tenant do each hereby agree at any time and from time to
time that within not more than ten (10) days after written request by the other,
to execute, acknowledge and deliver to the other a written statement in such
form as may be required by a potential or existing lender or buyer certifying
that its lease is unmodified and in full force and effect (or, if there have
been modifications, that the same are in full force and effect as modified and
stating the modifications) and the dates to which the rent and other charges
have been paid in advance, if any, it being intended that any such statement may
be relied upon by any prospective purchaser of the fee or mortgage or assignee
of any mortgage upon the fee of the Demised Premises.
23. TENANT'S RIGHTS TO CURE LANDLORD'S DEFAULTS
The Landlord agrees that if the Landlord fails to perform any
obligation, including its obligation to pay any interest, principal, cost or
other charges upon any mortgage or mortgages or other liens and encumbrances
affecting the Demised Premises and to which this lease may be subordinate when
any of the same become due, or if Landlord fails to make any repairs or do any
work required of the Landlord by the provisions of this lease, or in any other
respects fails to perform any covenant or agreement in this lease contained on
the part of the Landlord to be performed, then and in such event after the
continuance of any such failure or default for thirty (30) days after notice in
writing thereof is given by the Tenant to the Landlord, notwithstanding any
delay or forbearance in giving such notice, Tenant may perform any such
obligation or pay said principal, interest cost and other charges, and cure such
defaults, all on behalf of and at the expense of the Landlord. The Tenant may
further do all necessary work and make all necessary payments in connection
therewith including, but not limited to, the payment of any attorney's fees,
costs and charges of or in connection with any legal action which may have been
brought. The Landlord agrees to pay to the Tenant forthwith any amount so paid
by the Tenant, together with interest thereon at the maximum legal rate. All
sums charged to Landlord by Tenant hereunder shall be indebtedness of Landlord
to Tenant payable on demand. If any such indebtedness or any other indebtedness
of Landlord to Tenant is due at any time, Tenant may, in addition to other
remedies, withhold all rent accruing hereunder and apply the same to the payment
of such indebtedness. If all such indebtedness is not fully paid at the
expiration of the original term of this lease or any extension thereof, Tenant
may, at its option, extend this lease on the same covenants and conditions as
herein provided, until such indebtedness is fully paid by application of all
rents thereto.
24. ACCESS
The Landlord hereby warrants, represents and covenants to the Tenant
that Tenant has access to all street fronts and adjoining rights-of-way. If any
street, adjoining right-of-way, or all or any part of the parking area is
obstructed or blocked for repairs, reconstruction or otherwise, by acts of the
Landlord or an affiliated entity, to the extent the operation of Tenant's
business is substantially adversely affected, a fair and reasonable reduction of
rent shall be made. Landlord shall, at its own costs and expense, provide all
access roads and driveways, fully paved, to the property lines of the Demised
Premises.
25. ENTRY AND INSPECTION
The Tenant shall permit Landlord and its agents to enter the Demised
Premises at all reasonable times for any of the following purposes: to inspect
the same; to maintain the building in which the said Demised Premises are
located; to make such repairs to the Demised Premises as the Landlord is
obligated or may elect to make; to post notices of nonresponsibility for
alterations or additions or repairs. The Landlord shall have such right of entry
and the right to fulfill the purpose thereof without any rebate of rent to the
Tenant for any loss of occupancy or quiet enjoyment of the Demised Premises
thereby occasioned.
26. NOTICES
All notices to be given to the Tenant shall be in writing, deposited in
the United States mail, certified or registered, return receipt requested, with
postage prepaid, and addressed to the Tenant at 000 Xxxxx Xxxx Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. Notices by the Tenant to Landlord shall be in
writing, deposited in the United States mail, certified or registered, return
receipt requested, with postage prepaid, and addressed to the Landlord at 000 X.
Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxxxx Xxxxxx. Notices shall be
deemed delivered the day after same are deposited in the United States mail, as
above provided. Change of address by either party must be by notice given to the
other in the same manner as above specified.
27. ZONING AND LICENSING
The Landlord agrees upon request by Tenant to sign promptly and without
charge therefore to the Tenant, any application for occupational licenses and
permits as may be required by the Tenant for the conduct and operation of the
business herein authorized or for the proper use of the Demised Premises, this
to include, without limitation, applications for occupational licenses, signs,
and any other licenses where the signature of the Landlord or owner is required
by the applicable laws of the state, county, or municipality in which the
Demised Premises are located that are in effect and in force at the time, the
cost of any such licenses and permits to be borne by the Tenant.
28. TENANT'S SIGNS
The Landlord hereby warrants, represents and covenants to the Tenant
that Tenant shall have the right to install and maintain its standard signs
advertising Tenant's business, as revised from time to time. Subject to local
codes, deed restrictions and/or waiver of same.
29. COOPERATION
Landlord shall fully cooperate with Tenant throughout the term of this
lease and all extensions and renewals to secure and maintain proper zoning,
building and other permits and compliance with all applicable laws, and Landlord
shall execute all such petitions, requests and the like as Tenant shall
reasonably request for such purposes.
30. FORCE MAJEURE
If Landlord or Tenant is delayed or prevented from performing any of
their respective obligations under this lease by reason of strike or labor
troubles or any outside cause whatsoever (other than inability to obtain
financing) beyond Landlord's or Tenant's reasonable control, the period of such
delay or such prevention shall be deemed added to the time herein provided for
the performance of any such obligations.
31. SUCCESSORS AND ASSIGNS
The covenants, terms, conditions, provisions, and undertakings in this
lease or in any renewals thereof shall extend to and be binding upon the heirs,
executors, administrators, successors, and assigns of the respective parties
hereto, as if they were in every case named and expressed, and shall be
construed as covenants running with the land; and wherever reference is made to
either of the parties hereto, it shall be held to include and apply also to the
heirs, executors, administrators, successors, and assigns of such party, as if
in each and every case so expressed.
32. DECLARATION OF GOVERNING LAW
This lease shall be governed by, construed and enforced in accordance
with the laws of the State of Florida.
33. GRAMMATICAL USAGE
In construing this lease, feminine or neuter pronouns shall be
substituted for those masculine in form and vice versa, and plural terms shall
be substituted for singular and singular for plural in any place in which the
context so requires.
34. ADDITIONAL INSTRUMENTS
The parties agree to execute and deliver any instruments in writing
necessary to carry out any agreement, term, condition, or assurance in this
lease whenever occasion shall arise and request for such instruments shall be
made.
35. MARGINAL NOTES
The captions and marginal notes of this lease are inserted only as a
matter of convenience and for reference and in no way define, limit, or describe
the scope or intent of this lease, nor in any way affect this lease.
36. ENTIRE AGREEMENT
This lease, together with any written agreements which shall have been
executed simultaneously herewith, contains the entire agreement and
understanding between the parties. There are no oral understandings, terms, or
conditions, and neither party has relied upon any representation, express or
implied, not contained in this lease or the simultaneous writings heretofore
referred to. All prior understandings, terms, or conditions are deemed merged in
this lease. This lease cannot be changed or supplemented orally.
37. MODIFICATION
This lease may not be changed orally, but only by an agreement in
writing and signed by the party against whom enforcement of any waiver, change,
modifications, or discharge is sought.
38. SEVERABILITY
If any provision of this lease shall be declared invalid or
unenforceable, the remainder of the lease shall continue in full force and
effect.
39. ATTORNEYS' FEE
In the event that it becomes necessary for either party to bring suit
to enforce the terms of this lease, then the prevailing party shall be entitled
to recover all costs, including reasonable attorneys' fees, against the
nonprevailing party.
40. CONSTRUCTION
Landlord and Tenant hereby acknowledge that each has participated
equally in the drafting of this lease and, accordingly, no court construing this
lease shall construe it more stringently against one party than the other.
41. HAZARDOUS WASTE
Tenant agrees to indemnify and hold Landlord harmless against any loss
or liability resulting from Tenant's use or storage of hazardous waste or any
other containments on the Demised Premises.
42. 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.
IN WITNESS WHEREOF, the parties have executed this lease as of the day
and year first above written.
Witnesses: TENANT:
First Team Management, Inc.
General Partner
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------------------------- By:
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Witnesses: LANDLORD:
XWAY, Inc. d/b/a Interstate Park
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By:
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Xxxxxxx Xxxxxx
