EXHIBIT 10.41.1
After recording return to:
Xxxxxx Pepper & Shefelman LLP
Attn: Xxxxx Xxxxxxxx
000 XX Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (the "Assignment") is made this 13th day of
December 1999 between:
ASSIGNOR: Xxxxxxxxx of Idaho, Inc., an Idaho corporation
0000 Xxxx Xxxxxxxx
Xxxxx, Xxxxx 00000
ASSIGNEE: Lithia Real Estate, Inc., an Oregon corporation
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
RECITALS
A. CARS-DB4, L.P., a Maryland limited partnership ("Landlord") owns real
property and improvements at 0000 Xxxx Xxxxxxxx, Xxxxx, Xxxxx, more particularly
described on the attached Exhibit A (the "Property").
B. Landlord and Assignor as tenant entered into a lease of the Property
dated April 7, 1998 (the "Lease").
C. Assignor has agreed to assign its rights as tenant under the Lease to
Assignee on the terms and conditions set forth in this Agreement. Landlord has
consented to the assignment in a separate document.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. Assignor assigns to Assignee as of December
13, 1999 (the "Lease Assignment Date") all of Assignor's right, title and
interest in and to the Lease. Assignee assumes the obligations of tenant under
the Lease, as of the Lease Assignment Date, and will perform the covenants and
conditions in the Lease to be performed by the Assignor.
Notwithstanding anything in this Assignment or the Lease to the contrary,
(a) Assignee shall not be required to satisfy any obligation or liability of
Assignor under the Lease or relating to the Property that was to have been
observed or performed by Assignor, or is based on
Assignor's acts or omissions, before the Lease Assignment Date, and (b)
Assignee's peaceful and quiet enjoyment and possession of the Property shall not
be disturbed, nor shall the rights and entitlements of Assignee under the Lease
be affected in any manner, as a result of any default by Assignor on any
obligation or liability under the Lease or relating to the Property.
2. Landlord's Consent. Assignor represents and warrants to Assignee that
Landlord has consented to the assignment of the Lease to the Assignee and
Assignor will deliver to Assignee a Consent signed by Landlord within a
reasonable time after the Lease Assignment Date.
3. Indemnification. Assignor will defend, indemnify and hold Assignee
harmless from any cost, liability and expense arising or resulting from any
failure of Assignor to pay or perform any liability under the Lease or relating
to the Property that was to have been paid or performed by Assignor on or before
the Lease Assignment Date, or is based on the Assignor's acts or omissions.
4. Representations and Warranties. Assignor covenants, represents and
warrants to Assignee as follows:
(i) The copy of the Lease attached hereto as Exhibit B is a true,
correct and complete copy of the Lease, including all amendments and
modifications thereto, and the Lease is in full force and effect.
(ii) The tenant's interest in the Lease is vested in Assignor, subject
only to the title exceptions described in Exhibit C attached hereto.
(iii) Except for the assignment contained in this Assignment, Assignor
has not assigned, sublet or transferred all or any portion of its interest under
the Lease.
(iv) To the best of Assignor's knowledge, neither Assignor nor
Landlord is in default under the Lease or Lease, nor has any event or
circumstance occurred which, with the giving of notice or passage of time, would
constitute a default by Assignor or Landlord.
(v) Any alterations or improvements to the Property performed or to
have been performed by Assignor have been completed in a good and workmanlike
manner and are in a good state of condition and repair. To the best of
Assignor's knowledge, the Property is provided with all necessary services and
utilities. Assignor has performed and observed all improvements, alterations,
maintenance, repairs and other obligations to be performed by the Assignor under
the Lease on or before the Lease Assignment Date.
(vi) To the best of Assignor's knowledge, there exists no state of
facts or circumstances with respect to the Lease or the Property, that would
indicate that the Property is not suitable for the use presently conducted by
Assignor.
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5. Guaranty. As partial consideration for the assignment of the Lease to
Assignee, Assignee will deliver to Assignor the guaranty by Assignee's
affiliate, Lithia Motors, Inc. of Assignees' obligations under the Lease (the
"Guaranty"). The Guaranty is attached hereto as Exhibit D.
6. Nondisturbance and Attornment Agreement. Landlord is the Grantor under
the following Leasehold Deeds of Trust and Assignment of Leases and Rents
recorded in the real property records of Ada County, Idaho in favor of German
American Capital Corporation, a Maryland corporation, ("Lender"):
$35,430,000 Deed of Trust Recorded December 1, 1998
as Instrument No. 98115292
$114,570,000 Junior Deed of Trust Recorded December 1, 1998
as Instrument No. 98115295
$85,00,000 Third Deed of Trust Recorded October 28, 1999
as Instrument No. 99105435
Assignor will use its best efforts to obtain from Lender and deliver to
Assignee simultaneously with the execution of this Assignment the Nondisturbance
and Attornment Agreement attached hereto as Exhibit E.
7. Miscellaneous.
(a) Applicable Law. This Assignment is governed and enforced by the
substantive law of the State of Idaho, without giving effect to its conflict of
laws provisions.
(b) Binding Effect. The covenants, agreement and obligations herein
contained, except as herein otherwise specifically provided, shall extend to,
bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
(c) Memorandum of Assignment of Lease. This Assignment shall be
executed, in recordable form, by the parties and recorded by Assignee, at
Assignee's expense.
(d) Counterparts. This Assignment may be signed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same document when executed by all parties.
(e) Attorney Fees. If an action is instituted to enforce or interpret
this Assignment, the prevailing party shall recover from the losing party its
costs and reasonable attorney fees incurred both at and in preparation for such
action, including any appeal or review.
(f) This provision extends to all proceedings in bankruptcy court,
including all matters unique to bankruptcy law.
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IN WITNESS WHEREOF, the parties have signed this Assignment as of the date
first written above.
ASSIGNOR: XXXXXXXXX OF IDAHO, INC., an Idaho
corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
ASSIGNEE LITHIA REAL ESTATE, INC., an Oregon
corporation
By:__________________________________________
Xxxxx XxXxxx, Vice President
[Notary acknowledgements on following pages]
STATE OF IDAHO )
) ss.
County of ________________ )
This instrument was acknowledged before me on the ______ day of December
1999 by _________________________, as _________________________ of Xxxxxxxxx of
Idaho, Inc.
___________________________________________
NOTARY PUBLIC in and for the state of
Idaho, residing at
_________________________________, therein.
My Commission Expires:_____________
STATE OF IDAHO )
) ss.
County of ________________ )
This instrument was acknowledged before me on the ______ day of December
1999 by Xxxxx XxXxxx as Vice President of Lithia Real Estate, Inc.
___________________________________________
NOTARY PUBLIC in and for the state of
Idaho, residing at
_________________________________, therein.
My Commission Expires:_____________
Attachments:
Exhibit A - Legal Description
Exhibit B - Lease
Exhibit C - Title Exceptions
Exhibit D - Guaranty
Exhibit E - Nondisturbance and Attornment Agreement
EXHIBIT A
Legal Description
[See attached]
EXHIBIT B
Lease
[See attached]
EXHIBIT C
Title Exceptions
[See attached]
EXHIBIT D
Guaranty
[See attached]
EXHIBIT E
Nondisturbance and Attornment Agreement
[See attached]
