EXHIBIT 10.2
LEASE
THIS AGREEMENT, made this 1st day of April, 1996, by and between PLANT
FRUIT COMPANY, hereinafter called "Landlord," and FIRST TEAM FORD, LTD., whose
principal place of business is located in Seminole County, Florida, hereinafter
called "Tenant."
1. PREMISES
a. Landlord leases and demises to Tenant for the purpose of operating a
new and used automotive sales and service business, and such retail and
professional uses as are not inconsistent with the zoning for the Demised
Premises, and for no other purpose without Landlord's prior written consent and
Tenant hereby leases and rents from Landlord the following described premises,
hereinafter sometimes referred to as the "Demised Premises," located in Seminole
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 thereon, and
all easements, rights and appurtenances thereto.
2. TERM OF LEASE
a. The term and duration of this lease shall be for a period of five
(5) years, commencing from the commencement date herein provided.
b. The commencement date shall be the date of Closing as that term is
defined in that certain Contract for Sale between Seminole Ford, Inc. and Xxxxxx
Acquisitions, Inc. dated January 15, 1996.
3. RENT
a. Tenant's liability for rent shall commence to accrue on the
commencement date as defined in paragraph 2.b 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 shall be Three Hundred Thousand Dollars ($300,000.00) plus
applicable sales taxes. Such rental shall be payable in equal monthly
installments on the first day of each calendar month during the term hereof.
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 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 and used
by Tenant, 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 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. Should Tenant fail to pay any tax 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. In the event of any special assessment with respect to the
Demised Premises levied during the term of this Lease, the Tenant shall have no
obligation with respect to payment of such assessment and Landlord shall be
obligated to pay same.
Landlord shall use reasonable efforts, if requested by Tenant, 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. Tenant shall pay its share by the later of (i)
thirty (30) days after Landlord notifies Tenant of the amount
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thereof and furnishes Tenant with a copy of the tax xxxx and the calculations by
which Tenant's share has been determined, or (ii) ten (10) days prior to the due
date of the tax. 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 period. Landlord will furnish Tenant with a copy of the receipted
tax xxxx promptly after demand therefor.
4. CONSTRUCTION OF IMPROVEMENTS -- REPAIRS
a. The Tenant, during the term of this lease or any extension or
renewal of this lease, shall, at its expense, make all such routine repairs as
shall be reasonably necessary to keep the Demised Premises and Equipment in good
condition and repair. The Tenant further agrees that all damage or injury done
to the Demised Premises and any equipment 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 and Equipment 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 and use on and about 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 in and about the
Demised Premises as it may desire.
c. Landlord shall maintain the Demised Premises in good structural
condition and repair, shall make all structural repairs and replacements
necessitated to the roof, foundation, walls, and other structural elements of
the Demised Premises by any cause other than Tenant'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 Tenant's negligence.
Tenant may make alterations, additions and improvements to the Demised
Premises from time to time during the term of this lease with the prior written
consent of Landlord and shall have the right to erect and install such other or
additional improvements, signs and equipment on the Demised Premises as Tenant
may deem desirable for conducting its business thereon or for such other
business as Tenant may deem advisable consistent with the permissible uses as
provided in Section 1 above. 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 to pay all sums legally due and payable by it within forty-five (45) days
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. Tenant shall notify any contractor making improvements to the Demised
Premises that the Landlord's interest shall not be subject to any liens or
encumbrances as provided in ss.713.10, Florida Statutes.
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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
The Landlord shall deliver possession of the Demised Premises to the
Tenant at the beginning of the lease term provided, however, that if the
Landlord cannot deliver possession of the leased property on the commencement
date, 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, free and clear of all liens,
encumbrances and other exceptions, except such as Tenant may waive.
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 and has full power and authority to make this
lease. Tenant shall have and enjoy full, quiet and peaceful possession of the
Demised Premises, its appurtenances and all rights and privileges incidental
thereto during the term hereof and all extensions and renewals thereof.
c. Landlord hereby represents and warrants to Tenant that the
character, materials, design, construction and location of the improvements on
the Demised Premises, are in full compliance with all applicable building and
zoning laws and ordinances and requirements of Tenant. Landlord further hereby
represents and warrants to Tenant that Tenant will have the unrestricted right,
subject to deed restrictions, and applicable governmental regulations, to place
upon the Demised Premises at the locations now in use a pylon-sign of a type
selected by Tenant, and to use all parking areas and all driveways and means of
access to public roads.
d. Landlord makes no representation with respect to the buildings
located on the Demised Premises and to be leased by Tenant pursuant to this
lease (the "Buildings").
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
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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, provided
that Tenant is not in default hereunder, prior to or 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 and that Tenant repairs any damage to
the Buildings resulting from such removal. 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, insuring all risks of
direct physical loss, and excluding unusual perils such as nuclear attack, earth
movement, civil disturbance, riot, 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 $2,000,000.00 including deductibles consistent
with normal 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
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same shall not be canceled without at least thirty (30) days prior written
notice to Landlord, and shall name Landlord and 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 Tenant does not
elect to exercise its option, 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 building 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 the purchase price to be paid for the Demised Premises shall be the lesser
of Three Million Three Hunded Thousand and No/100 Dollars ($3,300,000.00) or an
M.A.I. appraisal of the Demised Premises obtained from an appraiser mutually
satisfactory to the Landlord and the Tenant. 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 and Tenant's
business is adversely affected thereby, Landlord agrees to waive an equitable
portion 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
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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 so long as Tenant
does not elect to exercise its option to purchase. Tenant hereby acknowledges it
shall have no right to any settlement proceeds or award attributable to the
existing condemnation Case No. _________.
14. ASSIGNMENT AND SUBLETTING
The Tenant may not assign this lease or let or underlet the whole or
any part of said Demised Premises without the prior written consent of the
Landlord which consent shall not be unreasonably withheld. Any such assignment
or subletting shall not relieve Tenant of its obligations under this lease
except as provided in Section 15 below. For purposes of this paragraph an entity
shall be deemed affiliated with Tenant in the event Xxxxxx X. Xxxxxx or First
Team Management, Inc. owns a Twenty-Five percent (25%) or greater interest in
the profits and losses of such entity.
15. OPTION TO PURCHASE
In consideration of the amounts payable hereunder during the term, the
Landlord and Tenant agree as follows:
a. OPTION GRANT. ~ The Landlord hereby grants unto the Tenant the
non-assignable exclusive right to purchase the property set forth on EXHIBIT "A"
hereto (the "Property") on the terms and conditions set forth below.
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. PURCHASE PRICE AND METHOD OF PAYMENT. ~ In the event Tenant elects
to purchase the Property, the purchase price to be paid by the Tenant to the
Landlord shall be Three Million, Three Hundred Thousand and No/100 Dollars
($3,300,000.00) plus the cost of any special assessments affecting the Demised
Premises which have been paid by the Landlord and which will benefit the Demised
Premises after the expiration of the term of this Lease.
The purchase price shall be paid to the Landlord at the time of closing
by cash, certified check, or by wire transfer of funds.
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d. SURVEY. ~ At any time while this Lease is in effect, Tenant may have
the Property 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.
e. EXPENSES, PRORATION AND CONVEYANCE. ~ The Tenant shall pay for
documentary stamps on the Deed and 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.
f. REPRESENTATION OF OWNERSHIP. ~ The Landlord covenants that Landlord
is the fee simple owner of the Property subject to no liens or encumbrances of
any type. Landlord covenants that it shall not encumber the Property during the
term hereof in an amount greater than Two Million Five Hundred Thousand and
No/100 Dollars ($2,500,000.00), so long as Landlord's lender agrees in writing
to acknowledge Tenant's rights hereunder so long as Tenant is not in default of
its obligations pursuant to this Lease.
g. HAZARDOUS WASTE. ~ At the commencement of the term of this Lease,
there are no pollutants, contaminants, petroleum products or by-products,
asbestos or other substances, whether hazardous or not, on or beneath the
surface of the Property, except for 3 underground tanks on the Property, one of
which is in use and as otherwise disclosed on EXHIBIT "B", which Landlord or any
other person or entity has placed, caused or allowed to be placed upon the
Property, and which has caused or may cause any investigation by any agency or
instrumentality of government, which is or may be on the Property in violation
of any law or regulation of any local, state or federal government or which is
or may be a nuisance or health threat to occupants of the Property or other
residents of the area. In the event Tenant exercises its option, Tenant shall
take the Demised Premises subject to the conditions disclosed in EXHIBIT "B" or
any other condition which may exist at the time of exercise of the option.
Landlord hereby agrees to indemnify Tenant against any claim, loss, liability or
obligation which may accrue against Tenant as a result of the breach of any
representation or warranty set forth in this Lease.
h. 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.
i. 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 Property to Tenant.
(ii) A no-lien affidavit in a form satisfactory to
Tenant's attorney.
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(iii) 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.
(ii) An Owner's Title Commitment showing no change
from the Leasehold Commitment delivered pursuant to the Agreement in the amount
of Three Million, Three Hundred Thousand and No/100 Dollars ($3,300,000.00).
j. MEMORANDUM OF OPTION. ~ Simultaneously with the execution of this
lease the parties hereto shall execute a Memorandum of Option Agreement
including Landlord's right to purchase solely for the purpose of recording in
the public records.
16. 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.
17. DESTRUCTION OF PREMISES
In the event of a total or partial destruction of the Buildings or
related improvements to be located on the Demised Premises during said term from
any cause, the Landlord shall forthwith repair the same, unless same was caused
by the negligence of Tenant, its employees or business invitees, provided such
repairs can be made within one hundred twenty (120) days under the laws and
regulations of state, federal, county or municipal authorities, but such total
or partial destruction shall in no wise annul or void this lease, except that
the minimum rent to be paid hereunder shall be equitably adjusted according to
the amount and value of the undamaged space.
Should the total or partial destruction result from causes covered by
the fire and extended coverage insurance furnished by the Tenant, the insurance
proceeds shall be made available to the Landlord to effect the required repairs.
In the interests of expediency, the Tenant may, at its option, elect to make the
necessary repairs, in which event the insurance proceeds shall be made available
to the Tenant for such purpose.
If such repairs cannot be made within one hundred twenty (120) days,
this lease may be terminated at the option of Tenant.
18. WAIVER OF SUBROGATION
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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.
19. 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.
20. PERSONAL PROPERTY
The Landlord acknowledges that Landlord has no interest in any personal
property or equipment or furniture and fixtures which may be presently located
or 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.
21. DEFAULT AND INSOLVENCY
a. The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
(1) The failure by Tenant to make any payment of Rent or any
other payment required to be made by Tenant hereunder, as and when due provided
Landlord has given five (5) days' written notice to Tenant of non-payment; or
(2) More than three defaults by Tenant within any one year of
the term of the lease for the nonpayment of rent hereunder, necessitating that
Landlord, because of such defaults, shall have served upon Tenant within said
year more than three written notices. This default shall be deemed a non-curable
default; or
(3) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant, other than paragraph (1) above, where such failure shall continue for a
period of thirty (30) business days after written notice thereof
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from Landlord to Tenant; or
(4) The insolvency of the Tenant or the execution by Tenant of
an assignment for the benefit of creditors; or
(5) The filing by or for reorganization or arrangement under
any law relating to bankruptcy or insolvency if said petition remains
undischarged for ninety (90) days; or
(6) The appointment of a receiver or trustee to take
possession of substantially all of Tenant's assets located at the Demised
Premises or of Tenant's interest in this Lease; or
(7) The vacating or abandonment of the Demised Premises for a
period of three (3) days or more.
b. Upon the occurrence of any event of default, Landlord shall have the
right at any time thereafter to pursue any one or more of the following remedies
with or without notice or demand. Pursuit of any of the following remedies shall
not preclude pursuit of any of the other remedies herein provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rents due to Landlord hereunder or of any damages accruing to Landlord by
reason of the Tenant's violation of any of the terms, conditions or covenants
herein contained.
(1) Terminate this Lease, in which event Tenant shall
immediately surrender the Demised Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rents, enter upon and take possession of the Demised
Premises and expel or remove Tenant and any other person who may by occupying
the Demised Premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim or damages therefor. Tenant agrees to pay to
Landlord on demand the amount of all loss and damage which Landlord may suffer
by reason of such termination, whether through inability to relet the Demised
Premises on satisfactory terms or otherwise.
(2) Enter upon and take possession of the Demised Premises and
expel or remove Tenant and any other person who may be occupying the Demised
Premises, without being liable for prosecution or any claim for damages
therefor, and relet the Demised Premises and receive the rents therefrom. Tenant
agrees to pay to Landlord on demand any deficiency that may arise by reason of
such reletting.
(3) Enter upon the Demised Premises without being liable for
prosecution or any claim for damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant agrees to reimburse
Landlord on demand for expenses which Landlord may incur in effecting compliance
with Tenant's obligations under this Lease, and Tenant further agrees that
Landlord shall not be liable for any damages resulting to the Tenant from such
action.
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(4) At its option, declare the rents for the entire remaining
term of the Lease, and other indebtedness, if any, immediately due and payable
without regard to whether or not possession shall have been surrendered to or
taken by Landlord, and may commence action immediately thereupon and recover
judgment therefor provided same shall not relieve Landlord of its duty to
mitigate its damages by reasonable action.
Any rents which may be due Landlord, whether by acceleration or
otherwise, as provided herein, shall include the minimum rent, and any
additional amounts provided for herein.
c. In the event of any default under this lease by Landlord, Tenant
may, without being judged in default hereunder, withhold payments of rent or
other sums due Landlord (provided that Tenant has given Landlord written notice
and thirty (30) days to cure such default unless a shorter period is required to
prevent Tenant from suffering damage or loss) by Tenant, and apply same to cure
any such default by Landlord. 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.
22. 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.)
23. ESTOPPELS
Landlord and Tenant do each hereby agree at any time and from time to
time that within not more than ten (l0) days after written request by the other,
to execute, acknowledge and deliver to Landlord 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.
24. ACCESS
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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, to the extent
the operation of Tenant's business is substantially adversely affected, a fair
and reasonable reduction of rent shall be made. If customer access to Tenant's
store is blocked, rent shall xxxxx; provided, however, rent shall not xxxxx if
access is blocked due to acts of Tenant.
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 or by
hand delivery or overnight courier service, with postage prepaid, and addressed
to the Tenant at 000 X. Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attn: Xxxxxx
X. Xxxxxx, with a copy to J. Xxxxxxx Xxxxxxxxx, Esq., Xxxxx, Xxxxxxxx &
Xxxxxxxxx, 000 X. Xxxx Xxxxxx, 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 P. O. Drawer HH, Plant City, Florida 33564, Attn:
Xxxx X. Xxxxxx, Xx., with a copy to Xxxxxx X. Xxxxxxx, Esq., Trinkle, Redman,
Xxxxx, Xxxxxxx & Xxxx, P.A., X. X. Xxxxxx XX, Xxxxx Xxxx, Xxxxxxx 00000. Notices
shall be deemed delivered the day after same are deposited in the United States
mail or when delivered, 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. 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.
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28. 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.
29. 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.
30. 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.
31. DECLARATION OF GOVERNING LAW
This lease shall be governed by, construed and enforced in accordance
with the laws of the State of Florida.
32. 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.
33. 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.
34. MARGINAL NOTES
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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.
35. 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.
36. 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.
37. 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.
38. 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
non-prevailing party.
39. 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.
40. HAZARDOUS WASTE
a. TENANT'S RESTRICTIONS. ~ Tenant shall not cause or permit to occur:
(1) Any violation of any federal, state or local law,
ordinance or regulation now or hereafter enacted, related to environmental
conditions on, under or about the Demised Premises, arising from Tenant's use or
occupancy of the Demised Premises, including but not limited to, soil
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and ground water conditions; or
(2) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any hazardous substances on,
under, or about the Demised Premises, or the transportation to or from the
Demised Premises of any hazardous substances, except as may be permitted by
applicable law and regulation.
41. HOLD HARMLESS
Tenant shall indemnify, defend and hold Landlord harmless from any and
all claims, liabilities, damages and costs, including attorneys' fees, incurred
by Landlord which may arise from Tenant's use of the Demised Premises or from
the conduct of its business or from any activity, work or things which may be
permitted or suffered by Tenant in, on or about the Demised Premises to the
extent not caused by the Landlord, and shall further indemnify, defend and hold
Landlord harmless from and against any and all claims, liabilities, damages and
costs, including attorneys' fees, incurred by Landlord which may arise from any
negligence of Tenant or any of its agents, representatives, customers,
employees, or invitees.
IN WITNESS WHEREOF, the parties have executed this lease as of the day
and year first above written.
Witnesses: TENANT:
FIRST TEAM FORD, LTD., A FLORIDA
LIMITED PARTNERSHIP
By: First Team Management, Inc.,
__________________________________ General Partner
__________________________________ By:____________________________________
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Witnesses: LANDLORD:
__________________________________ PLANT FRUIT COMPANY
__________________________________ By:____________________________________
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this _____ day of
April, 1996, by _______________, as _____________ of FIRST TEAM MANAGEMENT,
INC., General Partner of FIRST TEAM FORD, LTD., a Florida limited partnership,
on behalf of the partnership, who is personally known to me or who has produced
________________________ as identification and who did (did not) take an oath.
_________________________________________
(Signature)
_________________________________________
(Printed name)
NOTARY PUBLIC - STATE OF FLORIDA
SERIAL NO.:
STATE OF FLORIDA
COUNTY OF _____________
The foregoing instrument was acknowledged before me this ____ day of
April, 1996, by ____________________, as _______________ of PLANT FRUIT COMPANY,
a Florida corporation, on behalf of the corporation, who is personally known to
me or who has produced ________________________ as identification and who did
(did not) take an oath.
_________________________________________
(Signature)
_________________________________________
(Printed name)
NOTARY PUBLIC - STATE OF FLORIDA
SERIAL NO.:
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EXHIBIT "A"
LEGAL DESCRIPTION OF "DEMISED PREMISES"
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