Exhibit 10.40
LEASE AGREEMENT
This Lease is made as of this 30th day of August, 1999, between XXXXX
PROPERTIES, LLC ("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. August 30, 1999
1.3 Expiration Date. August 30, 2014, 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: Xxxxx Properties, LLC
0000 XX Xxxx
Xxxxxxxx, 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 196.
1.6 Premises. That certain real property located in Xxxxxxx 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 fifteen (15) year period commencing on the Commencement
Date and expiring on the Expiration Date, subject to Tenant's right to extend
the Term for seven (7) 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.
3.1 Initial Rent. Tenant shall pay Rent for the Premises in equal
monthly installments initially of Forty-six Thousand Dollars ($46,000) per
month, in advance on the first (1st) day of each calendar month included
in the Term, as the same may be extended. All Rent shall be paid in lawful money
of the United States at the address of Landlord set forth in this Lease 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.
3.2 Renewal Term and Rent Adjustment. On the fifth (5th) anniversary
of the Commencement Date and on the first day of each renewal term (if any),
monthly Rent payable hereunder shall be increased from that payable in the
immediately preceding five (5) year term by the lesser of (i) the Maximum
Percentage Increase (as hereinafter defined), or (ii) the same percentage as the
increase, if any, in the Consumer Price Index "U.S. City Average, All Items, All
Urban Consumers, 1982-1984 = 100" published by the United States Department of
Labor, Bureau of Labor Statistics (the "CPI"), during the immediately preceding
five (5) year term, by comparing the CPI published at the commencement date of
said term and that published at the end of said term. In no event shall Rent
increase by more than the following percentages on the following adjustment
dates (the "Maximum Percentage Increase"):
(i) three percent (3%) for any year during the first fifteen years of
the Lease term; and
(ii) thereafter there shall be no Maximum Percentage Increase for
subsequent renewal terms.
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 Roseburg, Oregon area for
purposes of making these calculations.
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 seven (7) additional, consecutive five
(5) year terms. This Lease shall automatically renew at the end of the then
current term, unless the Tenant gives written notice to Landlord, not less than
eighteen (18) months prior to the expiration of the then-current term, of
Tenant's intent to terminate the Lease at the completion 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. Rent during a renewal term shall be as set
forth in Section 3.2 hereof.
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. Tenant shall indemnify, protect, defend
and hold Landlord, its directors, officers, members, employees, and agents
harmless from and against any and all damages, liabilities, judgments, costs,
claims, liens, expenses, and penalties arising out of Tenant's activities on the
Premises.
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6. HAZARDOUS SUBSTANCES.
6.1 Tenant's Compliance. 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.
6.2 Indemnification. Tenant shall indemnify, protect, defend and
hold Landlord, its directors, officers, members, employees, and agents harmless
from and against any and all damages, liabilities, judgments, costs, claims,
liens, expenses, penalties, loss of permits and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance brought onto the Premises by
or for Tenant or by anyone under Tenant's control, in violation of this section.
Tenant's obligations under this Section 6.2 shall include, but not be limited
to, the effects of any contamination or injury to person, property or the
environment created by Tenant, and the cost of investigation (including
consultants' and attorneys' fees and testing), removal, remediation, restoration
and/or abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Landlord and Tenant shall
release Tenant from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Landlord in writing at the time of
such agreement.
6.3 Landlord's Representations. Landlord hereby represents,
warrants, and covenants to Tenant that, to the best of Landlord's knowledge: (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. 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
representations and warranties contained herein.
6.4 Definitions. 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.
7. MAINTENANCE AND REPAIR.
7.1 Tenant's Obligation. Tenant agrees, throughout the Term of this
Lease, including any extensions or renewals hereof, 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 to comply with all notices issued by any Governmental Authority having
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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 Compliance with Laws. Tenant shall make all repairs,
alterations, additions or replacements to the Premises, including appurtenances,
equipment, facilities and fixtures therein, arising out of Tenant's use or
occupancy of the Premises or necessary to satisfy any Applicable Law.
7.3 Condition of Premises. Landlord hereby represents, warrants, and
covenants to Tenant that, to the best of Landlord's knowledge, the structural
portions of the improvements on the Premises, including, without limitation, the
roof, downspouts, gutters, foundation, and structural supports, are in good
condition and repair.
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
("Alterations"), including those which are necessary to satisfy any Applicable
Laws, without Landlord's prior written consent. The foregoing notwithstanding,
any Alterations that affect the structural elements of the improvements on the
Premises shall first be approved by Landlord, which approval shall not
unreasonably be withheld or delayed, and may not be withheld if such structural
Alteration is necessary to comply with any Applicable Law. 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 do or permit to be done, or fail to do,
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
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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. 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. 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 Tenant 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,
unless such damage or destruction is caused by the intentional act of Tenant,
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
material portions sufficient to render the remaining portion thereof unsuitable,
in Tenant's reasonable 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 to completion. The
foregoing notwithstanding, Landlord shall be required to deliver
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notice to Tenant of its failure to pay Rent only three (3) times in a twelve
(12) month period. In the event no such notice is required in accordance with
the preceding sentence, Tenant shall be in default hereunder if it fails to pay
Rent within fifteen (15) days of when due. Landlord shall not, upon the exercise
of any remedy upon a breach by Tenant of 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 to completion. 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 and provided
there is no uncured default by Tenant, 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 to the original offeror upon the same terms and conditions offered to
Tenant within one hundred-twenty (120) days of making such offer 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
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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.
16. OPTION TO PURCHASE
16.1 Grant of Option. Provided there is no uncured default by Tenant
at the time Tenant gives written notice of its intention to exercise its rights
under this section, Tenant shall have the option to acquire the Premises on the
terms and conditions set forth herein. To exercise such option, Tenant must give
Landlord written notice during the Term hereof (including any renewal term) of
Tenant's intent to acquire the Premises.
16.2 Purchase Price. The purchase price for the Premises shall be
one hundred percent (100%) of the fair market value of the Premises, not
considering the effect of this Lease thereon, excepting therefrom the value of
any improvements made by Tenant following the Commencement Date and of any trade
fixtures, and exclusive of any portion of the Premises previously condemned or
conveyed in lieu thereof (the "Purchase Price"). The fair market value of the
Premises shall be determined as of the date the purchase option was exercised in
accordance with the preceding subsection.
16.3 Determination of Fair Market Value. The fair market value of
the Premises shall be determined as follows:
16.3.1 If the parties agree upon the fair market value of the
Premises, then such agreed upon amount shall become the Purchase Price.
16.3.2 If the parties cannot agree on the fair market value of
the Premises within thirty (30) days of the date of exercise of the purchase
option, then the fair market value of the Premises shall be determined by
appraisal as follows:
(a) The parties shall each appoint an appraiser to determine the
fair market value of the Premises. Tenant shall have the first right to
appoint its appraiser by providing written notice to Landlord of the name,
address and telephone number of the appraiser selected within five (5)
days following expiration of such thirty (30) day period. Landlord shall
have the right to appoint its appraiser by providing written notice to
Tenant of the name, address and telephone number of the appraiser selected
by Landlord within ten (10) days following expiration of the five (5) day
period provided to Tenant.
(b) Failure of either party to appoint an appraiser within the time
periods provided herein shall constitute a waiver of that party's right to
appoint an appraiser, and the determination of the other party's
appraiser, if timely made by such party as provided herein, shall be
deemed to be the fair market value of the Premises, notwithstanding any
other provision contained herein. Should both parties fail timely to
appoint an appraiser, then either party may seek appointment of an
appraiser by petitioning the presiding judge of the Circuit Court of
Xxxxxxx County, Oregon, and that appointed appraiser's determination of
fair market value shall be conclusive on the parties.
(c) If two appraisers are appointed in accordance with the foregoing
and agree upon the fair market value of the Premises, they shall jointly
render a single written report of their opinion of the fair market value
of the Premises. If two appraisers are appointed but cannot agree on the
fair market value, they shall each render a separate written report
setting forth their opinions of the fair market value of the Premises
within forty-five (45) days after the date the last appraiser was
appointed. In the event the opinions of the two appraisers diverge by ten
percent (10%) or less, the average of the opinions of value of the two
appraisers will be deemed the fair market value of the Premises. In the
event the opinions of fair market value shall diverge by more than ten
percent (10%), then the two appraisers shall together, within ten (10)
days after the end of the forty-five (45) day appraisal period, appoint a
third appraiser who shall review the written reports of the initial two
appraisers, and issue a written report selecting one of the appraisals
made as the fair market value of the Premises within fifteen (15) days of
the appointment of the third appraiser. In the
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event a third appraiser shall be appointed, the determination of said
third appraiser as to the fair market value of the Premises in accordance
with the foregoing shall be binding on the parties. If two appraisers are
appointed and cannot agree upon the fair market value of the Premises, and
cannot agree upon the appointment of a third appraiser, then the parties
may seek appointment of a third appraiser by petitioning the presiding
judge of the Circuit Court of Xxxxxxx County, Oregon.
16.3.3 Each appraiser selected or appointed in accordance with
the foregoing to make a determination of the fair market value of the Premises
shall be MAI certified and shall be licensed by the State of Oregon. If each
party appoints an appraiser, the fees and other costs of such appraisers shall
be borne solely by the party appointing such appraiser, and the fees and costs
of any third appraiser appointed by such appraisers shall be borne equally by
both parties. Should only one appraiser be appointed, whether by a party hereto
or by the presiding judge of the Circuit Court of Xxxxxxx County, Oregon, the
fees and costs of such appraiser shall be borne equally by both parties.
16.4 Escrow; Title Report. Within ten (10) days following the
determination of the fair market value of the Premises pursuant to Section 16.3,
the parties shall open an escrow with a title company mutually agreed to by both
parties (the "Escrow Agent"). Within fifteen (15) days after the opening of the
escrow, Landlord shall provide Tenant with a preliminary title report from the
Escrow Agent showing the condition of title to the Premises. Landlord shall, at
Landlord's expense, provide Tenant at closing with an ALTA Owners Standard Form
Policy of Title Insurance issued by the Escrow Agent, with liability coverage in
the amount of the Purchase Price and showing title vested in Tenant subject only
to (i) real property taxes and installments of special assessments, if any,
attributable to the period from and after the Commencement Date; (ii) the
encumbrances described in the attached Exhibit B; and (iii) any encumbrances on
the Premises arising by, through, or under Tenant (collectively, the "Permitted
Encumbrances"). If Tenant requests that any endorsements be included in the ALTA
Owners Standard Form Policy of Title Insurance, the cost of such endorsements
shall be paid for by Tenant.
16.5 Closing. The purchase and sale of the Premises shall be
completed and closed within forty-five (45) days) of opening of the escrow, on a
date mutually agreed to by Landlord and Tenant. Tenant shall pay the full amount
of the Purchase Price at closing. Except as otherwise set forth herein, Landlord
and Tenant shall each be responsible for one-half of any fees or costs incurred
in connection with the closing, including, without limitation, all escrow,
recording, and transfer fees or taxes.
16.6 Deed. At closing, Landlord will execute and deliver to Tenant a
general warranty deed conveying the Premises to Tenant subject only to the
Permitted Encumbrances. Landlord hereby agrees that during the Term, Landlord
will not create, allow or suffer any encumbrance, lien, or other matter which
would affect or encumber title to the Premises, without first obtaining Tenant's
written consent.
16.7 Prorated Amounts. To the extent real estate taxes, assessment
installments and operating expenses are the obligation of Tenant under this
Lease, no proration shall be made between Landlord and Tenant at closing of the
sale of the Premises hereunder. Rents due under the Lease and any expenses or
obligations which are not the obligation of Tenant under this Lease shall be
prorated as of the date of closing.
16.8 1031 Exchange. Landlord and Tenant shall cooperate with each
other if either party elects to sell or purchase the Premises (as the case may
be) pursuant to a tax deferred exchange in accordance with Section 1031 of the
Internal Revenue Code. Each party shall execute and deliver any and all
documents, and shall take such other actions, reasonably requested by the other
party to effect such exchange, provided the same may be completed without any
additional expense to the performing party.
17. TENANT FINANCING
17.1 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
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Leasehold Mortgagee, and shall provide Landlord with a copy of all recorded
instruments constituting the Leasehold Mortgage.
17.2 Protection of Leasehold Mortgagees. So long as any such
Leasehold Mortgage shall remain unsatisfied of record, the following provisions
shall apply:
17.2.1 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.
17.2.2 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.
17.2.3 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.
18. 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.
19. MORTGAGE PRIORITY; SUBORDINATION. This Lease is and shall be prior to
any mortgage or deed of trust ("Encumbrance") recorded after the date of this
Lease and affecting the Premises. However, if any lender holding such an
Encumbrance requires that this Lease be subordinate to the Encumbrance, then
Tenant agrees that this Lease shall be subordinate to the Encumbrance, and to
any and all advances made on the security thereof and to all extensions thereof,
so long as the holder of the Encumbrance delivers to Tenant a non-disturbance
agreement, in a form reasonably acceptable to Tenant, that provides that, as
long as Tenant pays the rent and observes and performs all of the provisions of
this Lease and as long as the Lease is not otherwise terminated pursuant to its
terms, no foreclosure, deed given in lieu of foreclosure, or sale pursuant to
the terms of the Encumbrance, or other steps or procedures taken under the
Encumbrance, shall affect Tenant's rights under this Lease. If the foregoing
condition is met, Tenant shall promptly execute any documents reasonably
required by the holder of the Encumbrance to accomplish the purposes of this
section. If the Premises are sold as a result of foreclosure of any Encumbrance
thereon, or otherwise transferred by Landlord or any successor, Tenant shall
attorn to the purchaser or transferee.
20. MISCELLANEOUS PROVISIONS.
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20.1 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.
20.2 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 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.
20.3 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. Landlord shall exercise its rights under
this section at such times and in such a manner as to minimize interference with
Tenant and its operations on the Premises.
20.4 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.
20.5 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.
20.6 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, or by overnight
courier, 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.
20.7 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.
20.8 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
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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.
20.9 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.
20.10 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, 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.
20.11 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.
20.12 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.
20.13 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.
20.14 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.
20.15 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.
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Landlord and Tenant have executed this Lease as of the day and year set
forth at the beginning of this Lease.
LANDLORD
XXXXX PROPERTIES, LLC
By:_____________________________________
Xxxxxx X. Xxxxx, Manager
TENANT
LITHIA REAL ESTATE, INC.
By:_____________________________________
Its:____________________________________
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EXHIBIT A
TO LEASE AGREEMENT
DESCRIPTION OF PREMISES
That certain real property situated in Xxxxxxx County, Oregon, legally described
as follows:
GUARANTY
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in consideration for, and as an inducement to
Landlord to make the foregoing lease with Tenant, the undersigned absolutely and
unconditionally guarantees, to Landlord and its successors, the full payment and
performance and observation of all of the terms, covenants, conditions,
provisions and agreements therein provided to be performed or observed by
Tenant, without requiring any notice of nonpayment, non-performance or
non-observance, or proof, or notice, or demand, all of which the undersigned
expressly waives. The undersigned expressly agrees that the validity of this
guaranty and the obligations of the undersigned as guarantor hereunder will in
no way be terminated, affected or impaired by reason of the assertion by
Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the lease. Landlord may grant extensions of time
and other indulgences and may modify, amend and waive any of the terms,
covenants, conditions, provisions or agreements of the lease, and discharge or
release any party or parties to the lease, all without notice to the undersigned
and without in any way impairing, releasing or affecting the liability or
obligation of the undersigned. The undersigned agrees that Landlord may proceed
directly against the undersigned without taking any action under the lease and
without exhausting Landlord's remedies against Tenant; and no discharge of
Tenant in bankruptcy or in any other insolvency proceedings will in any way or
to any extent discharge or release the undersigned from any liability or
obligation under this guaranty. The undersigned further covenants and agrees
that this guaranty will remain and continue in full force and effect as to any
renewal, modification or extension of the lease, and that no subletting and no
assignment of the lease, with or without Landlord's consent, will release or
discharge the undersigned. As a further inducement to Landlord to make the lease
and in consideration of the lease, Landlord and the undersigned covenant and
agree that in any action or proceeding brought by either Landlord or the
undersigned against the other on any matter whatsoever arising out of, under, or
by virtue of any of the terms, covenants, conditions, provisions or agreements
of the lease or of this guaranty, Landlord and the undersigned will and do
hereby waive trial by jury. The undersigned agrees to pay, in addition to any
damages which a court of competent jurisdiction may award, such amount or
amounts as the court may determine to be reasonable attorneys' fees and costs
incurred by Landlord or its successors or assigns in the enforcement of this
guaranty. In the event Landlord or the undersigned institute any action or
proceeding against the other relating to this guaranty, the unsuccessful party
in such action or proceeding shall reimburse the successful party for reasonable
attorneys' fees and other costs and expenses incurred therein by the successful
party. All rights under this guaranty will inure to the benefit of any
successors or assigns of Landlord.
Dated as of the 30th day of August, 1999.
GUARANTOR:
LITHIA MOTORS, INC.
By: ___________________________
Xxxxx X. XxXxxx, Vice President
Address:
000 X. Xxxxxxx Xx.
Xxxxxxx, Xxxxxx 00000
