Exhibit 10.39
LEASE AGREEMENT
This Lease is made as of this ______ day of _______________, 1998, between
XXXXXXX X. XXXXXXXX AND XXXXXXX X. XXXXXXXX ("Landlord") and LITHIA REAL ESTATE,
INC. ("Tenant")
For and in consideration of the mutual covenants contained herein,
Landlord and Tenant agree as follows:
1. LEASE DATA; DEFINITIONS. Whenever used in this Lease, the following
terms shall have the meanings indicated below.
1.1 Applicable Laws. Any law, ordinance, code, order, rule or
regulation of any Governmental Authority.
1.2 Commencement Date. __________________, 1998
1.3 Expiration Date. _______________, 2003, subject to extension in
accordance with Section 4 hereof.
1.4 Governmental Authority. The United States, the State of Oregon,
and any political subdivision thereof or any local public or quasi-public
authority, agency, department, commission, board, bureau or instrumentality of
any of them including, with respect to matters pertaining to insurance, rating
bureaus or insurance carriers to the extent they have power to impose conditions
on the issuance of policies or the coverage thereof.
1.5 Notice Addresses.
Landlord: Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxx 00000
Tenant: Lithia Real Estate, Inc.
000 X. Xxxxxxx Xx.
Xxxxxxx, Xxxxxx 00000
Landlord or Tenant may change its Notice Address in the manner
set forth in Section 18.6.
1.6 Premises. That certain real property located in Lane County,
Oregon, legally described in Exhibit A hereto, together with all improvements
and fixtures thereon.
1.7 Rent. The Rent payable hereunder as set forth in Section 3
hereof.
1.8 Term. A five (5) year period commencing on the Commencement Date
and expiring on the Expiration Date, subject to Tenant's right to extend the
Term for four (4) additional five (5) year renewal terms in accordance with
Section 4 hereof.
2. LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the Premises during the Term hereof, upon the terms and
conditions contained herein.
3. RENT. Tenant shall pay Rent for the Premises in equal monthly
installments of Sixteen Thousand Dollars ($16,000) per month for the first two
(2) years of the initial five (5) year Term hereof, and Eighteen Thousand
Dollars ($18,000) per month for the balance of the initial Term, in advance on
the first (1st) day of each calendar month. All Rent shall be paid in lawful
money of the United States at the address of Landlord set forth in this Lease
- 1 -
or at such other place as Landlord in writing may designate. For any portion of
a calendar month included at the beginning or end of the Term, Tenant shall pay
the prorata portion of the Rent installment for each day of such portion,
payable in advance at the beginning of such portion.
4. OPTIONS TO RENEW.
4.1 Extension of Term. Tenant shall have the options to renew this
Lease and to extend the Term hereof for four (4) additional, consecutive five
(5) year terms. Tenant may exercise the renewal options by giving written notice
to Landlord not less than ninety (90) days prior to the expiration of the
then-current term. The first renewal term shall commence on the date following
the expiration of the original term, and subsequent renewal terms shall commence
on the day following the expiration of the previous renewal term. All terms and
conditions of this Lease shall remain the same during the renewal term(s),
except that Rent to be paid hereunder shall be as provided for in Section 4.2
hereof.
4.2 Renewal Term Rent Adjustment. On the first day of the first
renewal term (if any) and any subsequent renewal term, monthly Rent payable
hereunder shall be increased from that payable in the immediately preceding five
(5) year term by the lesser of (i) ten percent (10%), or (ii) the same
percentage as the increase, if any, that the Consumer Price Index "U.S. City
Average, All Items, All Urban Consumers, 1967 = 100" published by the United
States Department of Labor, Bureau of Labor Statistics (the "CPI"), has
increased during the immediately preceding lease term, by comparing the CPI
published at the commencement date of the immediately preceding lease term and
that published at the end of said preceding lease term. In no event shall Rent
increase by more than two percent (2%) during any single year within the
applicable term or ten percent (10%) during the entire said term. In the event
the CPI shall hereafter be converted to a different standard reference base or
otherwise revised, the determination of the percentage increase shall be made
with the use of such conversion factor, formula, or table for converting such
index as may be published by the Bureau of Labor Statistics. If publication of
the index is discontinued, the parties hereto shall select another index which
best measures inflation in the Eugene, Oregon area for purposes of making these
calculations.
5. USE.
5.1 Permitted Use. Tenant may use the Premises for any lawful
purposes, including, without limitation, in connection with the operation of
automobile dealerships and servicing facilities.
5.2 Operations. Tenant shall conform to all reasonable Applicable
Laws affecting the use of the Premises. Tenant shall not commit or allow to be
committed any waste upon the Premises, or any public or private nuisance or
other act or thing which disturbs the quiet enjoyment of any other tenants,
owners or users of neighboring premises.
5.3 Hazardous Substances. Tenant shall not, other than in compliance
with all Applicable Laws, engage in any activity in or about the Premises
involving (i) the installation or use of any above or below ground storage tank,
or (ii) the generation, possession, use, storage, transportation or disposal of
Hazardous Substances. Landlord hereby represents, warrants, and covenants to
Tenant that: (i) no Hazardous Substances are or have been used, treated, stored,
disposed of, released, spilled, generated, manufactured, or otherwise handled on
the Premises, or transported to or from the Premises, have been spilled,
released, intruded, leached, or disposed of from the Premises onto adjacent
property, or have otherwise come to be located on or beneath the Premises; (ii)
the Premises and all operations conducted thereon have been in full compliance
with all applicable Environmental Laws; (iii) no liens have been placed on the
Premises under any Environmental Laws, and Landlord has no knowledge of any
threatened or pending liens; and (iv) Landlord has received no notice and is not
aware of any administrative or judicial investigations, proceedings, or actions
with respect to violations, alleged or proven, of any Environmental Laws by
Landlord or otherwise involving the Premises or the operations conducted
thereon.
- 2 -
For purposes of this Lease, the terms "Environmental Laws" and
"Hazardous Substances" shall have the following meanings: (i) Environmental Laws
- All federal, state, and local statutes, regulations, ordinances, directives,
and rules pertaining to the protection of human health or the environment that
are applicable to the Premises, including, without limitation, the Comprehensive
Environmental Response, Compensation and Recovery Act of 1980, as amended, the
Resource Conservation and Recovery Act of 1976, the Superfund Amendments and
Reauthorization Act of 1986, as amended, and the Hazardous Materials
Transportation Act, together with all regulations pertaining thereto; (ii)
Hazardous Substances - All dangerous, toxic, or hazardous pollutants,
contaminants, chemicals, waste, materials, or substances as defined in or
governed by the provisions of any Environmental Laws, including, without
limitation, polychlorinated biphenyls, dioxin, nuclear fuel or waste, and
petroleum and its fractions, or any other waste, substance, pollutant, or
contaminant which would subject the owner or operator of the Premises to any
damages, penalties, or liabilities under any applicable Environmental Laws.
Landlord hereby agrees, at its sole cost and expense, to
unconditionally indemnify, defend, and hold Tenant, its directors, officers,
employees, and agents (the "Indemnitees"), harmless from and against, and shall
reimburse the Indemnitees for, any loss, liability, damage (whether direct or
consequential), claims, penalties, fines, injunctions, suits, proceedings,
disbursements, or expenses (including, without limitation, attorneys' and
experts' fees and disbursements and court costs), arising as a result of a
breach by Landlord of any obligation hereunder, including the foregoing
representations and warranties, or arising under any Environmental Laws, or any
other liabilities which may be incurred by or asserted against the Indemnitees,
or any of them, directly or indirectly, resulting from the presence of Hazardous
Substances on the Premises, whether arising during the term of this Lease,
following termination hereof, or at any other time. The obligations contained in
this section shall be joint and several as to every individual executing this
Lease as Landlord.
6. UTILITIES AND SERVICES. Landlord, at its sole cost and expense, shall
provide and connect to the Premises the lines, equipment and/or facilities
necessary to enable Tenant to obtain water, gas, electricity, telephone, sewer
service and all other appropriate utilities or services thereon, and shall
maintain and repair the same during the Term hereof. In the event any such
utilities are interrupted as a result of Landlord's failure to perform its
obligations hereunder, Rent shall be abated during the period of such
interruption. Tenant shall pay when due all charges for such utilities or
services incurred in connection with its use and operation of the Premises.
7. MAINTENANCE AND REPAIR.
7.1 By Tenant. Tenant agrees, throughout the Term of this Lease,
including any extensions or renewals hereof:
7.1.1 To keep the Premises clean, to remove all refuse, trash
and debris therefrom, and to surrender the Premises in the same order and repair
as at the commencement of the Term of this Lease, reasonable wear and tear and
damage by fire, other casualty, or condemnation excepted, upon the expiration or
sooner termination of the Term of this Lease; and
7.1.2 To comply with all notices issued by any governmental or
quasi-governmental authorities having jurisdiction of the Premises solely with
respect to Tenant's use and occupancy thereof, as well as with the reasonable
recommendations with respect to Tenant's use and occupancy of the Premises made
by insurance carriers insuring the Premises.
7.2 By Landlord.
Landlord, at its sole cost and expense, shall be responsible
for the maintenance and repair (including replacements, as necessary) of (i) the
structural portions of the improvements on the Premises, including, without
limitation, the roof, downspouts, gutters, exterior and interior walls,
foundation and structural supports and windows, and (ii) the water, sewer, gas,
telephone, electrical and other utility lines, equipment and facilities serving
the Premises. Landlord covenants that all improvements on the Premises are
properly constructed and comply with all
- 3 -
laws, statutes, ordinances, regulations, rules, standards and requirements of
any governmental or quasi-governmental authority having jurisdiction relating to
the Premises, and that the same will be delivered in good condition to Tenant at
the commencement of the Term of this Lease.
In carrying out its responsibilities as required under this
section, Landlord shall promptly undertake all such maintenance, repair and
replacement work as soon as Landlord knows of the need therefor and thereafter
shall diligently prosecute the same to completion. All such work shall be
undertaken in a manner which does not cause unreasonable interruptions in the
business activities of Tenant and, to the extent possible, all repairs shall be
done during the hours that Tenant is not open for business. During any period
when all or a portion of the Premises is rendered untenantable due to Landlord's
activities as contemplated by this section, Tenant's obligation to pay Rent
under this Lease shall be abated.
8. ALTERATIONS. Except as otherwise set forth herein, Tenant may make any
alterations, subdivisions, installations, decorations, sign installations,
improvements, additions or other physical changes in or about the Premises,
including those which are necessary to satisfy any Applicable Laws, without
Landlord's prior written consent. Any such alterations by Tenant during the term
of this Lease shall be done in a good and workmanlike manner, with good and
sufficient materials, and be in compliance with all Applicable Laws.
9. INSURANCE.
9.1 Liability Insurance. Tenant shall obtain and keep in force
during the term of this Lease a commercial general liability policy of insurance
protecting Tenant and Landlord, as an additional insured, against claims for
bodily injury, personal injury, and property damage based upon, involving, or
arising out of the ownership, use, occupancy, or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall be on an occurrence basis
providing single limit coverage in an amount not less than $1,000,000 per
occurrence.
9.2 Casualty Insurance. Tenant shall also obtain and keep in force
during the Term of this Lease a policy or policies insuring against loss or
damage to the Premises, naming Tenant as the loss payee. Such insurance shall be
for full replacement cost, as the same shall exist from time to time, and shall
name Landlord as an additional insured.
9.3 Personal Property Insurance. Tenant, at its cost, shall either
by separate policy or by endorsement to a policy already carried, maintain
insurance coverage on all of Tenant's personal property, trade fixtures and
Tenant-owned alterations in, on, or about the Premises. Such insurance shall be
full replacement cost coverage with a deductible not to exceed $1,000 per
occurrence. The proceeds from any such insurance shall be used by Tenant for the
replacement of personal property and the restoration of trade fixtures and
Tenant-owned alterations.
9.4 Insurance Policies. Insurance required hereunder shall be in
companies duly licensed to transact business in the state in which the Premises
are located, and maintaining during the policy term a 'General Policyholders
Rating' of at least B +, V, as set forth in the most current issue of 'Best's
Insurance Guide.' Neither party shall not do or permit to be done anything which
shall invalidate the insurance policies referred to in this section. Upon
reasonable request by Landlord or Tenant, the other party shall deliver to the
requesting party, within seven (7) days, certified copies of, or certificates
evidencing the existence and amounts of, the insurance required under this
section. No such policy may be cancelable or subject to modification except
after thirty (30) days' prior written notice to the other party. Nothing herein
shall prevent any party from maintaining the insurance required hereunder by an
umbrella policy or policies.
9.5 Waiver of Subrogation. Without affecting any other rights or
remedies, Tenant and Landlord each hereby release and relieve the other, and
waive their entire right to recover damages (whether in contract or in tort)
against the other, for loss or damage to their property arising out of or
incident to the perils required to be insured against under this section. The
effect of such releases and waivers of the right to recover damages shall not be
limited by the amount of insurance carried or required, or by any deductibles
applicable thereto.
- 4 -
Landlord and Tenant agree to have their respective insurance companies issuing
property damage insurance waive any right to subrogation that such companies may
have against Landlord or Tenant, as the case may be, so long as the insurance is
not invalidated thereby.
10. TAXES. Tenant shall pay prior to delinquency all taxes and assessments
which may be levied upon or assessed against the Premises, and all taxes or
assessments levied upon or assessed against the improvements constructed by
Tenant situated thereon, together with all taxes levied upon or assessed against
the personal property of Tenant situated upon the Premises; provided, however,
that any taxes or assessments which may be levied or assessed for a period
beginning prior to the Commencement Date or ending after the Expiration Date
shall be prorated between Landlord and Tenant as of such date or dates. Tenant
shall not be obligated to pay any income tax or other tax, assessment, or charge
which may be levied or become due by reason of the rents and profits received by
Landlord as a result of this Lease. In the event that the Premises are
reassessed due to any transfer or conveyance of the Premises, or any interest
therein, by Landlord or Landlord's successors, and as a result thereof general
or special real estate or ad valorem taxes on the Premises are increased,
Landlord shall pay to Tenant or the appropriate taxing authority no later than
ten (10) days prior to delinquency, the amount of such increase for the tax year
in which the increase first becomes applicable and for each tax year thereafter.
Tenant shall have the right to contest, in good faith and by appropriate and
timely legal proceedings, the legality, assessed valuation, or amount of any tax
assessment which this Lease obligates Tenant to pay. Landlord shall reasonably
cooperate with Lessee in the prosecution of such contest.
11. DAMAGE. In the event of damage to or destruction of the Premises, or
to any portion thereof, caused by fire or other casualty, Tenant shall make
repairs and restorations as hereinafter set forth, unless this Lease is
terminated by either Landlord or Tenant as hereinafter provided. If such damage
or destruction cannot be restored as determined in the reasonable opinion of
Tenant within one hundred twenty (120) days after commencement of the work to
the condition as existed immediately prior to such damage or destruction, then
Tenant shall have the right to terminate this Lease by notice to Landlord, as of
the date specified in such termination notice, which termination date shall be
no earlier than thirty (30) days nor later than one hundred-eighty (180) days
after the date of such casualty. If this Lease is not so terminated, then Tenant
shall proceed diligently to restore the Premises so as to be substantially as
the same existed prior to the occurrence of the damage or destruction. If such
damage or destruction to the Premises is of a nature or extent that Tenant's
continued use and occupancy of the Premises is impaired, the Rent payable by
Tenant hereunder shall be equitably abated or adjusted for the duration of such
impairment.
12. EMINENT DOMAIN. If a condemning authority takes all of the Premises or
portions sufficient to render the remaining portion thereof unsuitable, in
Tenant's sole determination, for the purposes of Tenant's use, then this Lease
shall terminate as of the date title vests in the condemning authority. Landlord
shall be entitled to all of the proceeds of condemnation, whether from a total
or partial taking, except for any award specifically made to Tenant for the
taking of Tenant's improvements, trade fixtures, or personal property, the value
of the unexpired term of Tenant's leasehold interest, or for any other purpose.
Sale by Landlord of all or part of the Premises to a purchaser with the power of
eminent domain in the face of a threat or probability of the exercise of the
power shall be treated for the purposes of this section as a taking by
condemnation, and shall be subject to the terms of this section. In the event
this Lease is not terminated following a partial taking, the Rent payable by
Tenant hereunder shall be equitably abated or adjusted for the remainder of the
Term hereof.
13. DEFAULTS AND REMEDIES.
13.1 Default By Tenant. If at any time Tenant shall fail to remedy
any default in the payment of Rent due under this Lease within fifteen (15) days
after receipt of written notice from Landlord of any such failure, or shall fail
to remedy any default in any of the other provisions, covenants or conditions of
this Lease to be kept or performed by Tenant within a period of thirty (30) days
after receipt of written notice from Landlord, Landlord shall have the right to
pursue any remedy available to Landlord at law or in equity on account of such
default. Provided, however, that if such default cannot reasonably be cured
within said thirty (30) day period, Tenant shall not be in default of this Lease
if Tenant commences curative action within said thirty (30) day period and
diligently and in good faith continues to pursue the same. Landlord shall not,
upon the exercise of any remedy upon a breach by Tenant of
- 5 -
any covenant or obligation under this Lease, thereby obtain or secure legal
title to or ownership of any of the trade fixtures or other equipment placed
upon the Premises by Tenant.
13.2 Default by Landlord. Landlord shall be in default under this
Lease if Landlord fails or refuses to perform any of Landlord's obligations
under this Lease within thirty (30) days after notice of the default has been
given by Tenant. If the default cannot reasonably be cured within said thirty
(30) day period, Landlord shall not be in default of this Lease if Landlord
commences to cure the default within said thirty (30) day period and diligently
and in good faith continues to pursue the same. Should the Premises be subject
to the lien of any trust deed, mortgage, judgment, assessment, tax or other
obligation, whether incurred before or after the execution of this Lease, which
Tenant is not bound under this Lease to pay or discharge, or should Landlord
fail to pay or discharge any obligation which Landlord is obligated under this
Lease to pay or discharge, Tenant shall have the right, but not the obligation,
at any time to pay or discharge any such obligations. Should Tenant elect to pay
or discharge any such obligation, Landlord shall, upon demand, reimburse Tenant
for the full amount thereof, together with Tenant's expenses incurred in
connection therewith, including reasonable attorney's fees and interest from the
date of payment at the maximum rate allowable by law, and Tenant shall have the
right to deduct from Rent thereafter payable under this Lease or from the
purchase price of any sale of the Premises made by Landlord to Tenant all
amounts due from Landlord under this section until such amounts have been paid
in full.
13.3 Holdover by Tenant. In the event Tenant remains in possession
of any portion of the Premises after the expiration of the Term without the
written permission of Landlord, Tenant shall be deemed to be occupying such
portion of the Premises as a tenant from month to month, at a monthly rental
equal to the monthly installment of Rent payable during the last month of the
Term, subject to all the other conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month-to-month tenancy.
13.4 Waiver of Default. No consent or waiver, express or implied, by
Landlord or Tenant to or of any breach of any covenant, condition, or duty of
the other shall be construed as a consent or waiver to or of any other breach of
the same or any other covenant, condition, or duty of the other party, unless in
writing signed by the party against whom waiver is sought.
14. ASSIGNMENT, SUBLETTING. Tenant may assign this Lease or sublet all or
any portion of the Premises to any affiliated entity without the prior consent
of Landlord. Tenant may so assign or sublet to any other party only with the
prior consent of Landlord, which consent shall not unreasonably be withheld or
delayed.
15. RIGHT OF REFUSAL TO PURCHASE. During the Term hereof, should Landlord
receive a bona fide offer from any third party to purchase the Premises which
Landlord desires to accept, Landlord shall, before accepting such offer, notify
Tenant in writing of all of the terms and conditions thereof and shall first
offer in writing to sell the Premises to Tenant upon the same terms and
conditions. Upon receipt of any such notice and offer from Landlord, Tenant
shall have thirty (30) days thereafter within which to accept the same. Should
Tenant fail to accept any such offer within said thirty (30) day period,
Landlord shall be free to sell the Premises to the original offeror upon the
same terms and conditions offered to Tenant without further notice to Tenant,
which sale shall be subject to this Lease, including Tenant's right of first
refusal contained herein. Should Landlord, after having made such offer to
Tenant as above-described, fail to sell the Premises upon the same terms and
conditions offered to Tenant, Landlord shall give Tenant notice in the manner
set forth above of any further or different offers received by Landlord for the
purchase of the Premises and shall first offer to sell the same to Tenant upon
the same terms and conditions before accepting any such further or different
offer. It is expressly understood and agreed by and between the parties hereto
that Tenant shall have the right of first refusal with respect to each and every
offer to sell or purchase made or received by Landlord or by any successor
Landlord, and that Landlord at the time of the making or receipt of such offer
to sell or purchase shall in each and every instance notify Tenant of such offer
in the manner set forth above, and Tenant shall have the right to purchase the
Premises under the terms and conditions of such offer in accordance with the
terms and provisions set forth above.
- 6 -
16. TENANT FINANCING
16.1 Leasehold Mortgages. Tenant shall have the unrestricted right
to mortgage or otherwise encumber its interests under this Lease. Tenant shall
notify Landlord of the existence, identity, and address of any Leasehold
Mortgagee, and shall provide Landlord with a copy of all recorded instruments
constituting the Leasehold Mortgage.
16.2 Protection of Leasehold Mortgagees. So long as any such
Leasehold Mortgage shall remain unsatisfied of record, the following provisions
shall apply:
(a) No cancellation, surrender or modification of this Lease
shall be effective as to any Leasehold Mortgagee unless consented to in writing
by such Leasehold Mortgagee.
(b) Landlord, upon providing Tenant any notice of (i) a
default under this Lease, (ii) a termination of this Lease, or (iii) a matter on
which Landlord may predicate or claim a default, shall at the same time provide
a copy of such notice to every Leasehold Mortgagee of which Landlord has been
provided notice in accordance with this section. No such notice by Landlord to
Tenant shall be deemed to have been duly given unless and until a copy thereof
has been so provided to every Leasehold Mortgagee of which Landlord has been
provided notice in accordance with this section. From and after the date such
notice has been given to Leasehold Mortgagee, such Leasehold Mortgagee shall
have the same period, after the giving of such notice upon it, for remedying any
default or acts or omissions which are the subject matter of such notice which
can be remedied by such Leasehold Mortgage, or causing the same to be remedied,
as is given Tenant after the giving of such notice to Tenant. Landlord shall
accept such performance by or at the instigation of such Leasehold Mortgagee as
if the same had been done by Tenant.
(c) Landlord agrees to consent to an amendment to this Lease
to add such other provisions as may be reasonably requested by any Leasehold
Mortgagee which are generally required by institutional lenders for leases of
commercial properties of the type subject to this Lease.
17. LANDLORD'S WAIVER. If Tenant (or its affiliated or related entities)
shall acquire trade fixtures, equipment, machinery, inventory, or other goods
and effects ("Personal Property") subject to a purchase money security interest,
or shall lease any of the same, or if any lender provides Tenant with financing,
the proceeds of which are intended to enable Tenant to use and occupy the
Premises or to operate Tenant's business, and such financing is secured in whole
or in part by a lien on such Personal Property, Landlord shall, upon request
from Tenant, execute a waiver, in a form and content acceptable to the holders
of any such security interest or the lessor under any such lease, of any right
it may have to distrain upon or secure a lien against such Personal Property for
Tenant's failure to pay Rent, or any other event of default under the terms,
covenants, conditions and provisions of this Lease, and to allow the holders of
any such security interest or the lessor under any such lease to remove such
Personal Property from the Premises.
18. MISCELLANEOUS PROVISIONS.
18.1 Quiet Possession. Upon payment by Tenant of the Rent for the
Premises and the performance of all of the covenants, conditions and provisions
on Tenant's part to be observed and performed under this Lease, Tenant shall
have quiet possession of the Premises for the entire term hereof subject to all
of the provisions of this Lease. Lessor warrants that Lessor has full right and
sufficient title to lease the Premises for the term and upon the terms and
conditions set forth herein and agrees to indemnify Lessee for and against any
and all loss and damage that may result to Lessee on account of any failure of,
or defect in, Lessor's title or right to make and execute this Lease.
18.2 Liens. Neither Landlord or Tenant shall permit any liens to be
placed against the Premises, including, without limitation, any judgment lien,
lien for payment of real property taxes, or construction or
- 7 -
materialman's lien for any work done, materials furnished, or for the
performance of any other construction work for which each such respective party
is responsible; provided, however, that the responsible party may contest the
validity of any such lien to the extent such contest does not unreasonably
jeopardize the other party's interest in the Premises, and upon a final
determination of the validity of the contested lien, shall cause the same to be
satisfied and released of record.
18.3 Landlord's Access. Landlord and its agents shall have access in
and about the Premises including, without limitation, the right to enter the
Premises on reasonable notice (except in the case of emergency) to examine the
Premises, to exhibit the Premises to others, or for the purpose of performing
any obligation of Landlord under this Lease or exercising any right or remedy
reserved to Landlord in this Lease.
18.4 Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the parties under
this Lease.
18.5 Attorneys Fees. In the event either Landlord or Tenant shall
institute any action or proceeding against the other relating to any of the
terms, covenants, conditions or provisions of this Lease, or any default herein,
the unsuccessful party in such action or proceeding shall reimburse the
successful party for reasonable attorney's fees and other costs and expenses
incurred therein by the successful party, including fees, costs and expenses
incurred in any appellate proceeding.
18.6 Notices. Any notice or demand from Landlord to Tenant or from
Tenant to Landlord shall be in writing and shall be deemed duly served if mailed
by registered or certified mail, return receipt requested, addressed, to the
address of each party set forth herein, or to such other address as either party
shall have last designated by notice in writing to the other party.
18.7 Estoppel Certificates. Each of the parties agrees that it will,
at any time and from time to time, within ten (10) business days following
written notice by the other party hereto (or any lender of such party)
specifying that it is given pursuant to this section, execute, acknowledge and
deliver to the party who gave such notice a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), and the dates to which the Rent and any other payments due
hereunder from Tenant have been paid in advance, if any, and stating whether or
not, to the best of knowledge of the signer of such certificate, the other party
is in default in performance of any covenant, agreement or condition contained
in this Lease, and, if so, specifying each such default of which the signer may
have knowledge.
18.8 Applicable Law and Construction. The laws of the state of
Oregon shall govern the validity, performance and enforcement of this Lease. The
invalidity or unenforceability of any provision of this Lease shall not affect
or impair any other provision All negotiations, considerations, representations
and understandings between the parties are incorporated in this Lease. The
headings of the several articles and sections contained herein are for
convenience only and do not define, limit or construe the contents of such
articles or sections. Whenever herein the singular number is used, the same
shall include the plural, and the neuter gender shall include the masculine and
feminine genders. This Lease has been negotiated at arms length and shall not be
construed for or against any party by reason of the authorship or alleged
authorship of any provision hereof.
18.9 Relationship of the Parties. Nothing contained herein shall be
deemed or construed by the parties hereto, or by any third party, as creating
the relationship of principal and agent or partnership or joint venture between
the parties hereto, it being understood and agreed that no provisions herein,
nor any acts of the parties hereto, hall be deemed to create any relationship
between the parties hereto other than the relationship of landlord and tenant.
18.10 Binding Effect of Lease. The covenants, agreements 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 personal representatives, heirs, successors and permitted assigns.
Each covenant, agreement,
- 8 -
obligation or other provision herein contained shall be deemed and construed as
a separate and independent covenant of the party bound by, undertaking or making
the same, not dependent on any other provision of this Lease unless otherwise
expressly provided. At the request of either party, a memorandum of this Lease
and the right of first refusal contained herein will be executed by both parties
and may be recorded in the public records of the county in which the Premises is
located.
18.11 Effect of Unavoidable Delays. The provisions of this section
shall be applicable if there shall occur, during the Term, or prior to the
commencement thereof, any (i) strike(s), lockout(s) or labor dispute(s); (ii)
inability to obtain labor or materials, or reasonable substitutes therefor; or
(iii) acts of God, governmental restrictions, regulations or controls, enemy or
hostile governmental action, civil commotion, fire or other casualty, or (iv)
other conditions similar or dissimilar to those enumerated in this Section
beyond the reasonable control of the party obligated to perform. If Landlord or
Tenant shall, as the result of any of the above-described events, fail
punctually to perform any obligation on its part to be performed under this
Lease, then such failure shall be excused and not be a breach of this Lease by
the party in question, but only to the extent occasioned by such event. If any
right or option of either party to take any action under or with respect to this
Lease is conditioned upon the same being exercised within any prescribed period
of time or at or before a named date, then such prescribed period of time and
such named date shall be deemed to be extended or delayed, as the case may be,
for a period equal to the period of delay occasioned by any above-described
event.
18.12 No Oral Changes. Neither this Lease nor any provision hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
18.13 Executed Counterparts of Lease. This Lease may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same Lease.
18.14 Invalid Provisions. If any provision of this Lease is held
unlawful or invalid, then this Lease shall continue in full force and effect but
such unlawful or invalid provision shall be deemed omitted. If any portion of
the Rent shall at any time be held to be higher than the amount which the
Landlord may lawfully reserve, then the amount thereof shall be reduced to the
highest lawful amount.
18.15 Entire Agreement. This Lease is the final and complete
expression of Landlord and Tenant relating in any manner to the leasing, use and
occupancy of the Premises and other matters set forth in this Lease. No prior
agreement or understanding pertaining to the same shall be valid or of any force
or effect.
Landlord and Tenant have executed this Lease as of the day and year set
forth at the beginning of this Lease.
LANDLORD
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
- 9 -
TENANT
LITHIA REAL ESTATE, INC.
By:______________________________________
Its:_____________________________________
- 10 -
EXHIBIT A
TO LEASE AGREEMENT
DESCRIPTION OF PREMISES
That certain real property situated in Lane County, Oregon, legally described as
follows:
