LEASE
THIS LEASE, made as of April 20, 1998, between the Landlord identified on
Schedule A ("Landlord") and HOMETOWN AUTO RETAILERS, INC., a Delaware
corporation, having its principal office at 000 Xxxxxxx Xxxxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 ("Tenant").
W I T N E S S E T H:
ARTICLE 1 - Certain Basic Terms
1.1 Schedule A hereto contains certain basic terms of this Lease,
including the Premises, Commencement Date, Expiration Date, Base Rent and, if
applicable, Lease Extension Option and Premises Purchase Option. Certain
capitalized terms used herein shall have the meanings set forth in Schedule A.
ARTICLE 2 - Demise and Term
2.1 Upon and subject to the terms and conditions set forth herein,
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the
Premises. Each party hereby expressly covenants and agrees to observe and
perform all of the obligations herein contained on its part to be observed and
performed.
2.2 The term of this Lease (the "Term") shall commence on the
"Commencement Date" and, unless this Lease is sooner terminated as provided
herein, shall continue to and end at midnight on the "Expiration Date," such
terms as defined in Schedule A hereto.
2.3 If Schedule A specifically so provides and provided no default
has occurred and is continuing beyond any applicable grace period, Tenant shall
have the option to extend the term of this Lease (the "Extension Term"), on the
same terms and conditions contained in this Lease, except that the annual Base
Rent during the Extension Term shall be as set forth in Schedule A. If
applicable, Tenant may exercise such extension option by giving notice to
Landlord of its intention to extend the Term on or before the date that is six
months before the Expiration Date of the initial Term of this Lease. If so
extended, the word "Term" shall include the Extension Term as if the same were
originally included in the initial Term of this Lease.
ARTICLE 3 - Base Rent
3.1 Tenant shall pay to Landlord, at Landlord's address shown above,
or at such other address as Landlord may from time to time designate in writing,
an annual rental
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(the "Base Rent") set forth in Schedule A. Such rent shall be payable without
notice or demand and without deduction or abatement or set off.
3.2 The Base Rent shall be payable in consecutive monthly
installments in advance on the first day of each calendar month during the Term.
If the Commencement Date or the Expiration Date does not fall on the first day
of a calendar month, then the first and last payments shall be for only the
portion of the month attributable to the Term prorated on a daily basis.
3.3 It is the purpose and intent of Landlord and Tenant that, except
as provided in Sections 8.1 (structural repairs and replacements) and 17
(environmental matters), the Base Rent shall be absolutely net to Landlord, so
that this Lease shall yield, except as otherwise provided in Sections 8.1 and
17, net, to Landlord, the Base Rent specified in Schedule A hereof, in each year
during the term hereof and that all costs, expenses and obligations of every
kind and nature whatsoever relating to the Premises (except the taxes of
Landlord referred to in Section 5.3 hereof) which may arise or become due during
the term hereof shall be paid by Tenant. Landlord's obligations with respect to
structural and environmental matters shall be referred to hereinafter as
"Landlord's Obligations".
3.4 Tenant shall also pay without notice, except as may be required
in this Lease, and without abatement, deduction or set-off as additional rent,
all sums, "Impositions" (as defined in Section 5.1 hereof), costs, expenses and
other payments which Tenant in any of the provisions of this Lease assumes or
agrees to pay, and, in the event of any non-payment thereof, Landlord shall have
(in addition to all other rights and remedies) all the rights and remedies
provided for herein or by law in the case of non-payment of the Base Rent.
ARTICLE 4 - CPI Adjustment
4.1 At the expiration of the initial period thereafter ending
December 31, 2003 and each five year period during the Term, the Base Rent shall
be subject to CPI adjustment as follows:
At the expiration of the initial period ending December 31, 2003 and
each five year period thereafter, the annual rent for the succeeding five year
period shall be determined by multiplying the annual Base Rent in effect for the
immediately preceding five year period times the "CPI Factor" (as hereinafter
defined), provided, however, that the CPI Factor shall never be less than 1.00.
As used herein, the "CPI Factor" which shall be determined at the
expiration of each five year period during the Term, shall be determined as
follows:
(A) The United States Bureau of Labor Statistics "Consumer Price
Index for Urban Consumers All Items-U.S. City Average" (commonly referred
to as "CPI-U"), as the same may from time to time be revised, updated or
replaced, hereinafter referred to as the "index" (if said index is no
longer published, Landlord will use a comparable
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index) shall be used to determine the CPI Factor set forth in subsection
(B) immediately below;
(B) The index value in effect for December 1997, December 2003 and
each subsequent December at the end of a five-year period shall be the
"Old CPI"; the index value for December 2003 and each subsequent December
at the end of a five year period shall be the "New CPI"; and the CPI
Factor shall be determined by the following formula:
Base Rent as adjusted by CPI = 1 + (New CPI - Old CPI)
-------------------
Old CPI
4.2 For example: If the CPI for December of 1997 were 354.4 ("Old
CPI") and the CPI for December 2003 were 379.2 ("New CPI"), the CPI factor would
be 1.0699. If the previous annual Base Rent were $30,000, then the new annual
Base Rent for the period commencing January 2004 would be $32,097.
ARTICLE 5 - Real Estate Taxes
5.1 Tenant shall pay, as additional rent, all Real Estate Taxes
(including personal property taxes, if any), assessments, water and sewer rent
rates and charges, charges for public utilities, excise levies, license and
permit fees and other governmental charges, general and specified, of any kind
whatsoever (collectively "Impositions") assessed against the Premises with
respect to the Term, but not income, franchise or other taxes assessed against
Landlord's income or profits. Such payments shall be made within thirty (30)
days after receipt of a xxxx therefor from Landlord, which xxxx shall contain a
copy of the municipal or other taxing authority tax xxxx. Tenant shall be
entitled to the benefit of any statute or ordinance permitting Real Estate Taxes
to be paid in installments and, upon such election, Tenant's payments hereunder
shall be made in such installments. Landlord shall xxxx Tenant for the
applicable installment at least thirty (30) days before the installment may be
paid to the taxing authority without interest or penalty, and Tenant shall not
be responsible for any such interest or penalty resulting from Landlord's delay
in payment of such amounts to the taxing authority.
5.2 Tenant shall have the right to contest the amount or validity,
in whole or in part, of any Real Estate Tax, or to seek a reduction in the
valuation of the Premises, or any part thereof, as assessed for Real Estate Tax
purposes, by appropriate proceedings diligently conducted in good faith.
Landlord shall cooperate with any such tax reduction proceeding. If Landlord
receives notice of an increase in the Real Estate Tax assessment for the
Premises and fails to notify Tenant of such increase at least 30 days before the
last day for filing an objection to such increase, then Tenant shall not be
responsible for paying any Real Estate Taxes to the extent they result from such
increased assessment. Any refund of Real Estate taxes with respect to the Term
shall promptly be paid to and be the property of Tenant.
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5.3 Real Estate Taxes shall be apportioned between Landlord and
Tenant as of the beginning and the expiration or sooner termination of the Term,
so that Tenant shall pay only the portion of the Real Estate Taxes allocable to
the Term; provided, however, that Landlord need not make any apportionment in
favor of Tenant if this Lease shall have been terminated by reason of an Event
of Default.
ARTICLE 6 - Use and Compliance
6.1 Tenant may use and occupy the Premises as an automotive
dealership which shall include the purchase, sale, trade, storage, repair and
servicing of new and used motor vehicles and related tools and equipment and for
any other legal purpose related to the conduct of such business. Landlord
warrants that said permitted use complies with the existing zoning of the
Premises. In the event of any change in zoning laws or regulations that would
restrict Tenant's use as aforesaid, Tenant shall have the right to terminate
this Lease without any further obligation except with respect to any amounts
owing for use by Tenant prior to such termination.
6.2 Tenant shall, at its expense, substantially comply or cause
compliance with all laws, statutes, ordinances, orders, rules, regulations and
requirements of all governmental units applicable to the Premises ("Legal
Requirements") and all requirements of insurance rating organization applicable
to the Premises ("Insurance Requirements"), foreseen or unforeseen, ordinary as
well as extraordinary, whether or not the same shall presently be within the
contemplation of the parties hereto, which are related to Tenant's particular
use of the Premises, except that Landlord shall, at its expense, promptly comply
with any Legal Requirements or Insurance Requirements which have been or are
being violated as of the date hereof.
6.3 Tenant shall have the right, after notice to Landlord, to
contest by appropriate legal proceedings, diligently conducted in good faith,
the validity or application of any Legal Requirement or Insurance Requirement
and Landlord shall cooperate in such proceedings.
6.4 Landlord shall, at its expense, procure and maintain at all
times during the Term a certificate of occupancy for the Premises permitting the
use described in Section 6.1.
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ARTICLE 7 - Insurance
7.1 Tenant shall at all times during the Term, at its expense keep
the Premises insured for the mutual benefit of Landlord and Tenant against loss
or damage by fire and against such other risks as would be covered by an
extended coverage endorsement to a fire insurance policy in an amount not less
than one hundred percent (100%) of the full replacement value of the buildings,
improvements and fixtures then a part of the Premises if such one hundred
percent (100%) coverage is available from any insurance company of recognized
responsibility licensed to do business in the state where the Premises are
located. If such insurance is not available, the Tenant shall take out insurance
in an amount not less than the amount sufficient to avoid the effect of the
co-insurer provisions of the applicable policy or policies.
7.2 Tenant shall, at its own expense, but for the mutual benefit and
protection of Landlord and Tenant, maintain:
(a) general public and garage liability insurance against claims for
bodily injury or death or property damage occurring upon, in or about the
Premises and on, in or about the adjoining roads, ways, sidewalks, and
passageways, such insurance to afford protection to the limit of not less than
three million dollars ($3,000,000) in respect of any one occurrence;
(b) automobile liability insurance to the limit of not less than one
million dollars ($1,000,000);
(c) fire and extended coverage (including water damage and malicious
vandalism) insurance for property of tenant and bailors in an amount equal to
the full replacement cost; and
(d) such other insurance, insuring loss, damage or injury occurring
to or on the Premises as is usual and customary for the protection of leased
premises of this character or as may be deemed from time to time prudent and
reasonable in view of new risks or changed conditions.
7.3 Within fifteen days (15) from the execution of this Lease and
thereafter not less than fifteen days (15) prior to the expiration dates of the
expiring policies theretofore furnished pursuant to this Article 7, certificates
of insurance issued by the respective insurers shall be delivered by Tenant to
Landlord.
7.4 All policies of insurance relating to the Premises procured by
Tenant shall name Landlord and Tenant as the insured as their respective
interests may appear. All such policies, or certificates therefor, issued by the
respective insurers shall cover any increased risks as a result of construction,
repairs, alterations and additions to the Premises and shall contain an
agreement by such insurers that such policies shall not be cancelled without at
least ten (10) days' prior written notice to Tenant and Landlord. All such
policies of insurance
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shall provide that any proceeds from any insured loss shall be payable to
Landlord, subject to any prior right of any mortgagee notwithstanding any act of
negligence of Tenant which might otherwise result in forfeiture of said
insurance. Landlord shall have the right to negotiate, to adjust and settle with
the insurers on behalf of Landlord and Tenant.
7.5 Tenant, as its option, may keep all equipment and personalty on
the Premises insured with the insurer of its choice and for the benefit of
Tenant.
ARTICLE 8 - Repairs and Maintenance of Premises
8.1 Tenant shall maintain the Premises, including buildings,
improvements, parking areas, walks and paved areas, and keep the same in good
order and condition throughout the Term of this Lease, provided, however, that
Tenant shall have no obligation to make any structural repairs or improvements.
In addition, Tenant shall have the right to make such nonstructural changes,
alterations, repairs and improvements in or upon the Premises, including in or
upon the interior of any building or other improvement located thereon, during
the term hereof as it may desire. Tenant may install awnings, advertisements, or
signs on any part of the Premises. Except as provided in Section 11.1 with
respect to Landlord's obligations following a casualty and in Section 12.2 with
respect to Landlord's obligations following the Taking of a "material portion of
the Premises" (as defined in Section 12.1), all non-structural changes and
repairs shall be performed at Tenant's sole cost and expense. Tenant shall not
make any structural changes to the Premises except upon the consent of the
Landlord which shall not be unreasonably withheld or delayed.
8.2 Landlord, at its sole cost and expense, shall, in addition to
its obligations under Articles 11 and 12 of this Lease, make all structural
changes, alterations and repairs to the Premises, including any building or
improvements located thereon, upon prior notice to Tenant at mutually agreeable
times which will not interfere with the conduct of Tenant's business on the
Premises as normally conducted to the extent such changes are necessary for the
repair, replacement or restoration of the building or improvements on the
Premises.
8.3 The party performing the changes, alterations, improvements
and/or repairs contemplated by Sections 8.1 and 8.2 hereby agrees that it shall
indemnify the other party hereto and hold such party harmless from any cost,
expenses, damages and/or liability arising out of the performance of such work
in accordance with Article 16.
8.4 All trade fixtures, appliances and other equipment and property
placed or installed in or on the Premises by Tenant shall remain the property of
Tenant and, unless the parties hereto otherwise agree, Tenant shall remove the
same at the expiration of this Lease and restore the Premises to their original
condition after such removal.
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8.5 (a) No change or alteration of the Building shall be undertaken
until any necessary governmental permits and authorizations are obtained and
Landlord and Tenant each agrees to join, at the expense of the party seeking to
make such change, alteration, repair and/or improvement, in the application for
such permits or authorizations whenever such action is necessary.
(b) No change or alteration shall be undertaken by Tenant
until plans and specifications and cost estimates therefor prepared by an
architect or engineer reasonably satisfactory to Landlord, shall have been
approved by Landlord, which approval shall not be unreasonably withheld or
delayed.
(c) Each change or alteration shall, when completed, be of
such a character as not adversely to affect the value of the Premises for use of
the type described in Section 6.1 hereof immediately before such change or
alteration.
(d) All work done in connection with any change or alteration
shall be done promptly and in a good and workmanlike manner and in compliance
with all Legal Requirements; the cost of any such change or alteration shall be
timely paid so that the Premises shall at all times be free of liens for labor
and materials supplied or claimed to have been supplied to the Premises; the
work of any change or alteration shall be prosecuted with reasonable dispatch,
unavoidable delays excepted.
(e) Tenant shall not construct additional structures nor add
to the present structures without the written consent of the Landlord. Such
consent by the Landlord shall be within the sole discretion of the Landlord.
ARTICLE 9 - Utilities and Services
9.1 Landlord shall provide at the Commencement Date the normal and
customary utility service connections in and to the Premises for use in
accordance with Section 6.1 hereof, including water, sewer, gas and electricity
service. Tenant shall promptly pay when due directly to the appropriate utility
all amounts and charges for, the providing of heat, ventilation,
air-conditioning, cleaning service, hot and chilled water and any other water,
sewer, electricity, light, power, telephone or other communication service, and
any other utility or service required, used, rendered or supplied in or to the
Premises during the Term.
ARTICLE 10 - Mechanics' and Other Liens
10.1 Neither Landlord nor Tenant shall suffer or permit any
mechanics' or other liens to be recorded or filed against the Premises or any
part thereof or against the interests therein of Landlord or Tenant as a result
of any work performed by or on behalf of Tenant. If any such lien shall at any
time be recorded or filed against the Premises or any such interest therein, the
party whose work in or about the Premises was responsible therefor shall cause
the same to be discharged of record within ninety (90) days after such party
receives notice of the recording or filing of the same, by either payment,
deposit or bond.
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Notwithstanding the foregoing, either party shall have the right, after notice
to the other, to contest by appropriate legal proceedings, diligently conducted
in good faith, the amount or validity of any such mechanics' or other lien filed
against the Premises.
ARTICLE 11 - Damage or Destruction
11.1 If any building or other improvements located on the Premises
should be damaged by fire or other casualty, Tenant shall promptly notify
Landlord of such casualty and Landlord shall within thirty (30) days after such
fire or other casualty, commence, and thereafter diligently proceed, to repair
or reconstruct (both structural and non-structural) such building or other
improvements as nearly as may be possible to their condition immediately prior
to such casualty.
11.2 In the event of a casualty, Landlord shall make all insurance
proceeds received by it available for repair and restoration of the Premises,
provided however, that Landlord's time to repair and restore the Premises, as
provided in Section 11.1, shall not be extended on account of the non-receipt by
Landlord of any insurance proceeds. If the net amount of any insurance proceeds
on account of such damage or destruction shall be insufficient to pay the entire
cost of such work, Landlord shall pay and be responsible for the deficiency. If
any of such insurance proceeds shall remain after the full completion of such
repairs, restoration, replacements or rebuilding, the excess shall be retained
by or paid over to Landlord.
11.3 In the event of fire or other casualty rendering the Premises
either partially or totally untenantable, Base Rent and any additional rent
shall xxxxx as herein provided from the date of such casualty until the date
that is ten (10) days after Landlord notifies Tenant that the Premises have
again been rendered fully tenantable and a certificate of occupancy for the
restored Premises has been obtained. In the event that, and for so long as, the
Premises are not usable by Tenant substantially in the manner used by Tenant
immediately prior to the casualty, the entire amount of Base Rent and any
additional rent shall be abated. In the event that there has been damage to a
"material portion" of the Premises (as defined in subparagraphs (a) through (d)
in the second sentence of Section 12.1), Tenant shall have the right to
terminate this Lease unless Landlord shall, promptly following the occurrence of
such casualty, commit to restore the Premises, and shall actually complete such
restoration, within ninety (90) days from the date on which the casualty occurs.
If this Lease is not terminated in accordance with the immediately preceding
sentence, then, pending completion of restoration of the Premises, the Base Rent
and any additional rent payable by Tenant shall be abated in proportion to the
amount of the Premises which Tenant is unable to use for the continuation of its
business. The term "material portion" shall have the same meaning with respect
to a casualty as that set forth in Section 12.1 with respect to a Taking.
ARTICLE 12 - Condemnation
12.1 If all or a "material portion" of the Premises shall be
appropriated or condemned by any public or quasi public authority in the
exercise of its right of condemnation
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or eminent domain (the "Taking"), this Lease shall terminate as of the time when
possession shall be required by such public or quasi public authority. The term
"material portion" as used in the preceding sentence shall mean a Taking of: (a)
at least one-third (ILLEGIBLE) of the Premises; or (b) the Building or any part
thereof; or (c) shall result in cutting off direct access to and from the
Premises to any adjacent public street or highway; or (d) such portion of the
Premises as shall otherwise substantially alter Tenant's ability to use the same
in the manner used by Tenant immediately prior to the Taking. Notwithstanding
the termination of this Lease, both Landlord and Tenant shall have the right to
prosecute their claims for an award and/or to share in the proceeds of any award
based upon their respective interests. If the interests of Landlord and Tenant
are both compensated in a single award, then Tenant shall be entitled to that
portion of the award necessary to compensate it for its leasehold improvements
and moving expenses and Landlord shall be entitled to the remainder of the
award.
12.2 In the event of a Taking of less than a material portion of the
Premises (as defined in Section 12.1) during the Term, this Lease shall continue
unaffected except that the Base Rent shall be reduced as of the date of vesting
of title under such Taking to the Base Rent in effect immediately before the
Taking multiplied by a fraction, the numerator of which shall be the value of
the untaken portion of the Premises (valued after the Taking, giving effect to
any completed restoration) and the denominator of which shall be the value of
the Premises immediately prior to the Taking.
12.3 In the event of a Taking of less than a material portion of the
Premises which results in a continuation of this Lease, then the net award or
payment, if any, after reimbursement out of such amounts for any costs and
expenses (including reasonable attorneys' fees for obtaining same) (herein
called the "Net Restoration Fund") shall be received and held by Landlord and
shall be applied to the cost of restoration (whether structural or
non-structural) of the Premises as nearly as may be practicable to its
condition, character and value immediately prior to such Taking. Except as
expressly provided to the contrary in this Article, all of the provisions
contained in Article 11 for repair, restoration replacement or rebuilding after
any damage or destruction, by fire or other cause shall apply to restoration
necessitated by a Taking. For such purposes any reference in Article 11 to
insurance proceeds shall be construed to refer to the Net Restoration Fund. If
any of the Net Restoration Fund shall remain after the full completion of such
restoration, the excess shall be paid over to Landlord. If the Net Restoration
Fund shall be insufficient to pay the entire cost of such restoration, Landlord
shall pay and be responsible for the deficiency. Notwithstanding the foregoing,
Landlord shall commence and diligently proceed to completion of all restoration
necessitated by a Taking of a material portion of the Premises within thirty
(30) days after such material portion is not available for use by Tenant in
accordance with this Lease whether or not the Net Restoration Fund has then been
received by Landlord.
12.4 In the event that ingress to and/or egress from the 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
hereunder during such period of construction or improvement.
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ARTICLE 13 - Default by Tenant
13. If at any time during the Term any one or more of the following
events (each of which being herein called an "Event of Default") shall occur, to
wit:
(a) if Tenant shall fail to pay any installment of Base Rent
on the date that same is due and such failure shall continue for a period of ten
(10) days after receipt by Tenant of written notice from Landlord of such
failure;
(b) if Tenant shall make an assignment of all or substantially
all of its property for the benefit of its creditors; or
(c) if any petition shall be filed against Tenant in any
court, whether or not pursuant to any statute of the United States or of any
state, in any bankruptcy, reorganization, composition, extension, arrangement or
insolvency proceeding, and if any such proceeding shall not be dismissed within
one hundred and twenty (120) days after the institution of the same, or if any
such petition shall be so filed by Tenant; or
(d) if, in any proceeding, a receiver or trustee shall be
appointed for all or substantially all of Tenant's property, and such
receivership or trusteeship shall not be vacated or set aside within 120 days
after the appointment of such receiver or trustee, or if any such appointment is
consented to by Tenant; or
(e) if Tenant shall fail to substantially perform or observe
any other requirement of this Lease (not hereinbefore in this Section
specifically referred to) on the part of Tenant to be performed or observed and
such failure shall continue for thirty (30) days after notice thereof from
Landlord to Tenant, except that if such failure cannot be cured within such
thirty (30)-day period, and if Tenant shall commence the curing of such failure
promptly after notice thereof from Landlord and shall thereafter proceed with
reasonable diligence to complete the curing of such failure, it being the
intention hereof that in connection with any such failure which is not
susceptible of being cured with due diligence within said thirty (30)-day
period, that the time to cure such failure shall be extended for such period as
may be necessary to complete such cure with reasonable diligence;
then, upon the occurrence of any such Event of Default, Landlord shall have the
option to terminate this Lease upon ten (10) days' prior written notice to
Tenant, to re-enter the Premises, to evict Tenant and to remove Tenant's
possessions, both without being liable for trespass, and relet the Premises and
receive rent therefor. Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein provided or any other
remedies provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the terms,
conditions and covenants herein contained.
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ARTICLE 14 - Surrender of Premises
14.1 Tenant shall, upon the expiration of the Term for any reason
whatsoever, surrender to Landlord the Premises, broom clean and in good order,
condition and repair, except for reasonable wear and tear and damage from fire
or other casualty.
14.2 Title to all personal property and fixtures of Tenant shall
remain in Tenant and Tenant may remove such personal property and fixtures upon
or prior to the expiration of the Term.
ARTICLE 15 - Assignment and Subletting
15.1 Tenant shall not, without Landlord's prior written consent,
assign this Lease or sublet the Premises or any part thereof, which consent
Landlord will not unreasonably withhold or delay; provided, however, that Tenant
may, without Landlord's consent, assign this Lease or sublet the Premises or any
part thereof to any firm or corporation directly or indirectly controlled by, in
control of, or under common control with, Tenant.
ARTICLE 16 - Indemnity
16.1 Tenant shall indemnify and hold Landlord harmless from and
against any loss, cost, damage, claim, liability and expense (including, without
limitation, reasonable attorneys' fees and disbursements) arising from (a)
Tenant's possession of the Premises and any claims arising from its management
of, or from any work or thing whatsoever done by Tenant in and on the Premises,
(b) any default by Tenant hereunder beyond the expiration of any applicable
grace period, (c) any misrepresentation by Tenant herein, or (d) any negligent
act or omission or willful misconduct of Tenant or its agents, contractors or
invitees in connection with the use or occupancy of the Premises.
16.2 Landlord shall indemnify and hold Tenant harmless from and
against any loss, cost, damage, claim, liability and expense (including, without
limitation, reasonable attorneys' fees and disbursements) arising from (a) any
default by Landlord hereunder beyond the expiration of any applicable grace
period, (b) any misrepresentation by Landlord herein, or (c) any negligent act
or omission or willful misconduct of Landlord or its agents, contractors or
invitees in connection with the use or occupancy of the Premises, (c) any
conditions, including environmental, existing at the time of the execution of
this Lease, or (d) Landlord's failure to timely make repairs or restorations
required by the terms of this Lease.
ARTICLE 17 - Environmental Matters
17.1 Tenant, at its expense, shall substantially comply with all
environmental laws and regulations affecting or relating to its particular use
of the Premises. Tenant shall pay all costs, exist, fines and penalties imposed
upon Landlord or the Premises by reason of Tenant's failure to comply with the
provisions of this Section 17.1.
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17.2 Landlord represents and warrants to Tenant that as of the
Commencement Date (a) there were no hazardous waste or material located on or
under the Premises, (b) there were no asbestos containing materials in the
Premises, and (c) there were no underground storage tanks or transformers
containing PCB's located on or under the Premises. Landlord shall indemnify and
hold Tenant harmless from and against any loss, cost, damage or expense incurred
by Tenant as a result of the inaccuracy of the foregoing representation and
warranty.
ARTICLE 18 - Invalidity - Particular Provisions
18.1 If any provision of this Lease or the application thereof to
any person or circumstance shall be to any extent invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not bc affected thereby, and each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
ARTICLE 19 - Subordination
19.1 This Lease shall be subject and subordinate to any mortgage
which may now or hereafter be an encumbrance on the Premises and to all
renewals, modifications, consolidations, replacements, extensions or
refinancings thereof, all of which are collectively called the "mortgage",
provided the same shall meet the requirements and comply with the conditions
hereinafter in this Section set forth. The subordination provided for in this
section shall be self-operative but Tenant covenants, on demand, to execute,
acknowledge and deliver to Landlord such instruments as may be reasonably
necessary and proper to effect such subordination. It is covenanted, and the
foregoing subordination of this Lease to a mortgage is conditioned upon,
however, that so long as Tenant is not in default in the payment of Base Rent or
additional rent hereunder and otherwise performs and complies with the terms and
conditions of this Lease on its part to be performed within the applicable grace
period, Tenant will not be named or joined in any action or proceeding to
foreclose any mortgage affecting the Premises, that any such action or
proceeding will not result in a cancellation or termination of this Lease and
that this Lease shall continue in full force and effect upon all of the terms,
covenants and conditions herein contained. If Landlord shall default under any
mortgage covering the Premises, Tenant shall have the right, but not the
obligation, to cure such default and the next installment (s) of Base Rent and
any additional rent hereunder shall be abated by an amount equal to the cost of
such cure.
ARTICLE 20 - Notices
20.1 All notices, consents, approvals, demands and requests
(collectively "notices") which are required or desired to be given by either
party to the other hereunder shall be in writing and shall be sent by United
States registered or certified mail and deposited in a United States post
office, return receipt requested, postage prepaid. Notices which are served upon
Landlord or Tenant in the manner provided herein shall be deemed to have been
given or served for all purposes hereunder on the date accepted or refused at
the address to
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which it was sent. Notices which are given by either party may be given by the
attorney for such party without the signature of such party.
20.2 All notices given to Landlord or Tenant shall be addressed to
such party at its address set forth below or at such other place as such party
may from time to time designate in a written notice to the other party:
(a) If to Landlord, at the address set forth on Schedule A hereto.
(b) If to Tenant:
Hometown Auto Retailers, Inc.
000 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
ARTICLE 21 - Quiet Enjoyment
21.1 Landlord hereby covenants and agrees that if Tenant shall
perform all the covenants and agreements herein stipulated to be performed by
Tenant, Tenant shall, at all times during the Term of this Lease, have peaceable
and quiet enjoyment and possession of the Premises without any manner of
hindrance from Landlord or any other person, firm or corporation.
ARTICLE 22 - Authority
22.1 Landlord and Tenant each represents and warrants to the other
that it has full right, power and authority to enter into and perform all its
obligations under this Lease, without the consent or approval of any other
entity or person, and to make these representations knowing that the other party
will rely thereon.
22.2 The respective signatory on behalf of Landlord and Tenant
further represent and warrant that they have full right, power and authority to
act for and on behalf of Landlord and Tenant, respectively, in entering into
this Lease.
ARTICLE 23 - Miscellaneous Provisions
23.1 The term "Landlord" shall mean only the owner of the Premises
at the time in question and, in the event of a sale or transfer of the Premises,
the transferor shall be and hereby is automatically and entirely released and
discharged, from and after the date of such sale or transfer, of all liability
in respect of the performance of any of the terms of this Lease on the part of
Landlord thereafter to be performed, provided that the purchaser or transferee
shall agree in writing to be bound by all of the terms of this Lease on the part
of landlord to be performed during its period of ownership. Nothing contained in
this Section shall in any way release Landlord from any actions, omissions, or
failure of performance attributable to any period prior to Landlord's sale or
transfer of its interest in the Premises.
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23.2 This Lease constitutes thc entire agreement between the parties
with respect to the subject matter hereof; prior leases, if any, between either
party hereto or the predecessors of either party are automatically terminated on
the Commencement Date set forth or described in Schedule A. Any modification,
amendment or waiver of this Lease or any provision hereof must be in writing and
executed by the party against whom enforcement of such modification, amendment
or waiver is sought.
23.3 The parties acknowledge that each has had an opportunity to
review and negotiate this Lease. This Lease shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Lease or any part hereof to be drafted.
23.4 The table of contents and the captions of this Lease are for
convenience of reference only, and shall in no way be construed to define, limit
or describe the scope or intent of this Lease or the intent of any provision
hereof and same shall not in any way affect the provisions of this Lease.
23.5 Tenant shall have the right to record a memorandum of this
Lease provided it pays all costs in connection with such recording. Landlord
will cooperate with Tenant in connection therewith.
23.6 This Lease shall be governed by, and construed and enforced in
accordance with, the laws of the state in which the Premises are located.
23.7 Each party hereby waives all right to trial by jury in a
summary or other action, proceeding or counterclaim out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, the Premises
and the use and occupancy thereof, and any claim of injury or damages relating
thereto.
23.8 All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number, and any other gender as the context may require. The word "persons" as
used in this Lease shall mean a natural person or persons, a partnership,
corporation, limited liability company, and any other form of business or legal
association or entity as the context may require.
23.9 This Lease shall become binding and effective only upon the
execution and delivery of this Lease by both Landlord and Tenant.
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23.10 This Lease shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first above written.
LANDLORD: __________________________
By:____________________________________
TENANT:
HOMETOWN AUTO RETAILERS, INC.
By:_______________________________
Its:
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SCHEDULE A
Premises: 000 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Initial Base Annual Rent: $240,000
Base Rent Monthly Installment: $20,000
Commencement Date: effective date of initial public
offering of Tenant's common stock
Expiration Date: December 31, 2013
Lease Extension Option: None
(if applicable):
Landlord's Name: Shaker Enterprises
Landlord's Address: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Purchase Option: None
(if applicable)
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