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EXHIBIT 10.45
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AMENDED AND RESTATED
SUBLEASE AGREEMENT
between
XXXXX DEVELOPMENT CO., A FLORIDA GENERAL PARTNERSHIP
(Landlord)
and
XXXXX FORD, INC., A FLORIDA CORPORATION
(Tenant)
HOLLYWOOD - - 441
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LEASE AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE 1 LEASE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Premises Leased . . . . . . . . . . . . . . . . . . 1
Section 1.2 Premises Defined . . . . . . . . . . . . . . . . . 1
Section 1.3 Habendum . . . . . . . . . . . . . . . . . . . . . 1
Section 1.4 Amendment and Restatement of Prior Sub-Lease . . . 1
Section 1.5 Sublease Agreement . . . . . . . . . . . . . . . . 1
ARTICLE 2 TERM OF LEASE . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1 Initial Term and Commencement . . . . . . . . . . . 1
Section 2.2 Lease Year . . . . . . . . . . . . . . . . . . . . 1
Section 2.3 Lease Month . . . . . . . . . . . . . . . . . . . . 2
Section 2.4 Renewal Term . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 3.1 Base Rent . . . . . . . . . . . . . . . . . . . . . 2
Section 3.2 Additional Rent and Rent . . . . . . . . . . . . . 2
Section 3.3 Payment of Rent . . . . . . . . . . . . . . . . . . 3
Section 3.4 Late Charge . . . . . . . . . . . . . . . . . . . . 3
Section 3.5 Adjustment to Rent for Ford Improvements . . . . . 3
Section 3.6 Change of Facility Use. . . . . . . . . . . . . . . 3
ARTICLE 4 TAXES; UTILITIES . . . . . . . . . . . . . . . . . . . . . . 3
Section 4.1 Impositions Defined . . . . . . . . . . . . . . . . 3
Section 4.2 Tenant's Obligations . . . . . . . . . . . . . . . 4
Section 4.3 Tax Contest . . . . . . . . . . . . . . . . . . . . 4
Section 4.4 Evidence Concerning Impositions . . . . . . . . . . 4
Section 4.5 Utilities . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 5 IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 5.1 Alterations . . . . . . . . . . . . . . . . . . . . 4
Section 5.2 Mechanic's and Materialmen's Liens . . . . . . . . 5
Section 5.3 Ownership of Improvements . . . . . . . . . . . . . 5
Section 5.4 Asbestos . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 6 USE, ENVIRONMENTAL, MAINTENANCE, AND REPAIRS . . . . . . . . 6
Section 6.1 Use . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6.2 Environment . . . . . . . . . . . . . . . . . . . . 6
Section 6.3 Maintenance and Repairs . . . . . . . . . . . . . . 9
Section 6.4 Americans with Disabilities Act . . . . . . . . . . 10
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ARTICLE 7 INSURANCE AND INDEMNITY . . . . . . . . . . . . . . . . . . 11
Section 7.1 Building Insurance . . . . . . . . . . . . . . . . 11
Section 7.2 Liability Insurance . . . . . . . . . . . . . . . . 11
Section 7.3 Policies . . . . . . . . . . . . . . . . . . . . . 11
Section 7.4 Tenant's Indemnity . . . . . . . . . . . . . . . . 12
Section 7.5 Landlord's Indemnity . . . . . . . . . . . . . . . 12
Section 7.6 Subrogation . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 8 CASUALTY; CONDEMNATION . . . . . . . . . . . . . . . . . . . 13
Section 8.1 Tenant's Obligation to Restore . . . . . . . . . . 13
Section 8.2 Restoration and Deposit of Funds . . . . . . . . . 14
Section 8.3 Notice of Damage . . . . . . . . . . . . . . . . . 15
Section 8.4 Total Taking . . . . . . . . . . . . . . . . . . . 15
Section 8.5 Partial Taking . . . . . . . . . . . . . . . . . . 16
Section 8.6 Temporary Taking . . . . . . . . . . . . . . . . . 16
Section 8.7 Notice of Taking, Cooperation . . . . . . . . . . . 16
ARTICLE 9 TENANT'S FINANCING . . . . . . . . . . . . . . . . . . . . . 16
Section 9.1 Tenant's Right to Encumber . . . . . . . . . . . . 16
Section 9.2 Tenant's Mortgage . . . . . . . . . . . . . . . . . 17
ARTICLE 10 WARRANTY OF TITLE AND PEACEFUL POSSESSIONAND LANDLORD'S
FINANCING . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.1 Warranty As to Encumbrances . . . . . . . . . . . . 18
Section 10.2 Landlord's Mortgage . . . . . . . . . . . . . . . . 19
Section 10.3 Representations of Landlord . . . . . . . . . . . . 19
ARTICLE 11 DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . 21
Section 11.1 Default . . . . . . . . . . . . . . . . . . . . . . 21
Section 11.2 Remedies . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 12 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 23
Section 12.1 Notices. . . . . . . . . . . . . . . . . . . . . . 23
Section 12.2 Performance of Other Party's Obligations . . . . . 23
Section 12.3 Modification and Non-Waiver . . . . . . . . . . . . 24
Section 12.4 Governing Law . . . . . . . . . . . . . . . . . . . 24
Section 12.5 Number and Gender; Captions; References . . . . . . 24
Section 12.6 CPI . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 12.7 Estoppel Certificate . . . . . . . . . . . . . . . 24
Section 12.8 Severability . . . . . . . . . . . . . . . . . . . 25
Section 12.9 Attorney Fees . . . . . . . . . . . . . . . . . . . 25
Section 12.10 Surrender of Premises; Holding Over . . . . . . . . 25
Section 12.11 Relation of Parties . . . . . . . . . . . . . . . . 25
Section 12.12 Force Majeure . . . . . . . . . . . . . . . . . . . 25
Section 12.13 Non-Merger . . . . . . . . . . . . . . . . . . . . 25
Section 12.14 Entireties . . . . . . . . . . . . . . . . . . . . 25
Section 12.15 Recordation . . . . . . . . . . . . . . . . . . . . 26
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Section 12.16 Successors and Assigns . . . . . . . . . . . . . . 26
Section 12.17 Landlord's Joinder . . . . . . . . . . . . . . . . 26
Section 12.18 No Third Parties Benefitted . . . . . . . . . . . . 26
Section 12.19 Survival . . . . . . . . . . . . . . . . . . . . . 26
Section 12.20 Perpetuities . . . . . . . . . . . . . . . . . . . 26
Section 12.21 Transfer of Landlord's Interest . . . . . . . . . . 26
Section 12.22 Tenant's Right To Assign . . . . . . . . . . . . . 26
Section 12.23 Past Due Amounts . . . . . . . . . . . . . . . . . 27
Section 12.24 Independent Counsel . . . . . . . . . . . . . . . . 27
Section 12.25 Cooperation with Landlord's Lender. . . . . . . . . 27
Section 12.26 Receipt and Acknowledgment of Seminole Lease. . . . 27
Section 12.27 Fulfillment of Lessee's Obligation under the
Seminole Lease. . . . . . . . . . . . . . . . . . . 27
Section 12.28 Certain Rights of Tenant Regarding the Seminole Leas27
ARTICLE 13 OPTION TO PURCHASE LEASEHOLD . . . . . . . . . . . . . . . . 28
Section 13.1 Right of First Refusal . . . . . . . . . . . . . . 28
Section 13.2 Option . . . . . . . . . . . . . . . . . . . . . . 29
Section 13.3 Specific Performance . . . . . . . . . . . . . . . .31
ARTICLE 14 ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.1 Arbitration Provisions . . . . . . . . . . . . . . 31
ARTICLE 15 SUBORDINATION AND ATTORNMENT . . . . . . . . . . . . . . . . 32
Section 15.1 Subordination . . . . . . . . . . . . . . . . . . . 32
Section 15.2 Attornment . . . . . . . . . . . . . . . . . . . . 32
Section 15.3 Radon Gas Disclosure . . . . . . . . . . . . . . . 32
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EXHIBITS
EXHIBIT A Description of Land
EXHIBIT B Exceptions to Title to Land
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AMENDED AND RESTATED SUBLEASE AGREEMENT
This Amended and Restated Sublease Agreement ("LEASE") is entered into
as of the 16th day of March, 1998, between XXXXX DEVELOPMENT CO., A FLORIDA
GENERAL PARTNERSHIP as ("LANDLORD"), and XXXXX FORD, INC., A FLORIDA CORPORATION
("TENANT").
ARTICLE 1
LEASE OF PROPERTY
SECTION 1.1 PREMISES LEASED. Landlord subleases to Tenant, and
Tenant leases from Landlord the real property and premises described on EXHIBIT
A (the "LAND"), including but not limited to all of the rights, interests,
estates, and appurtenances thereto, all improvements thereon, and all other
rights, titles, interests, and estates, if any, in adjacent streets and roads.
SECTION 1.2 PREMISES DEFINED. All of the Land, properties,
rights, estates, appurtenances, and interests leased to Tenant pursuant to
Section 1.1, together with all improvements now or hereafter constructed
thereon, are hereinafter collectively referred to as the "PREMISES".
SECTION 1.3 HABENDUM. To have and to hold the Premises, together
with all and singular the rights, privileges, and appurtenances thereunto
attaching or in anywise belonging, exclusively unto Tenant, its successors and
assigns, upon the terms and conditions set forth herein and subject to the
matters set forth on EXHIBIT B.
SECTION 1.4 AMENDMENT AND RESTATEMENT OF PRIOR SUB-LEASE. The
Premises was previously subject to a lease agreement by and between Landlord
and Tenant. This agreement shall constitute an Amended and Restated Sublease
Agreement amending and restating the existing sublease.
SECTION 1.5 SUBLEASE AGREEMENT. This is a Sublease Agreement.
The property being subleased herein is subject to a Business Lease in favor of
The Seminole Tribe of Florida dated December 15, 1978 (as supplemented) (the
"SEMINOLE LEASE"). References hereinafter to the Landlord shall refer to Xxxxx
Development Co., a Florida General Partnership. References hereinafter to the
Tenant shall refer to Xxxxx Ford, Inc., a Florida Corporation. The primary
Landlord, The Seminole Tribe of Florida, shall be referred to by name.
ARTICLE 2
TERM OF LEASE
SECTION 2.1 INITIAL TERM AND COMMENCEMENT. The initial term
("INITIAL TERM") of this Lease shall commence on the date hereof ("COMMENCEMENT
DATE") and unless sooner terminated pursuant to the terms of this Lease, the
initial term of this Lease shall expire on the "EXPIRATION DATE" (herein so
called), which shall be (i) the last day of the one hundred twentieth (120th)
Lease Month from and after the first day of the calendar month following the
Commencement Date.
SECTION 2.2 LEASE YEAR. A "LEASE YEAR" shall mean a twelve (12)
Lease Month period commencing with the first day of the calendar month
following the Commencement Date or any anniversary date thereof.
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SECTION 2.3 LEASE MONTH. A "LEASE MONTH" shall mean a period of
time during the term of this Lease commencing the first day of the calendar
month and ending on the last day of the calendar month. The first Lease Month
shall begin on the first day of the calendar month following the Commencement
Date.
SECTION 2.4 RENEWAL TERM.
(a) If on the Expiration Date and the date Tenant notifies
Landlord of its intention to renew the term of this Lease (as provided below),
(i) Tenant has not been given notice of default under this Lease based upon a
Default as hereinafter defined, and (ii) this Lease is in full force and
effect, then Tenant, shall have and may exercise an option to renew this Lease
for four (4) additional terms (each, a "RENEWAL TERM") of five (5) years each,
upon the same Rent (hereinafter defined), as adjusted pursuant to the terms of
Section 3.1, and other terms and conditions contained in this Lease. Whenever
used in this Lease, "TERM", unless modified or specifically noted otherwise in
the applicable context, shall mean the Initial Term together with each Renewal
Term to the extent Tenant has exercised any option with respect to any Renewal
Term.
(b) If Tenant desires to renew this Lease, Tenant must notify
Landlord in writing of its intention to renew on or before the date which is at
least six (6) months but no more than twelve (12) months prior to the
Expiration Date or the expiration date of any Renewal Term, as the case may be.
ARTICLE 3
RENT
SECTION 3.1 BASE RENT. Subject to the terms and provisions
contained in this Section 3.1, Tenant shall pay Landlord monthly "BASE RENT"
(herein so called) of Sixty-Two Thousand Five Hundred and no/100 Dollars
($62,500.00), in advance on or before the first day of each Lease Month during
the Term, subject to adjustment as hereafter provided. If the Term commences
on a day other than the first day of a calendar month, or ends on a day other
than the last day of a calendar month, then the Base Rent for such month shall
be prorated on the basis of one thirtieth (1/30th) of the monthly Base Rent for
each day of such month. If the CPI on any Adjustment Date shall be greater
than the CPI for the Commencement Date, monthly Base Rent commencing on the
Adjustment Date shall be adjusted to be the original monthly Base Rent
specified in this Section 3.1 plus an amount equal to one-half (1/2) of the
product obtained by multiplying: (i) the original monthly Base Rent specified
in this Section 3.1 by (ii) the percentage increase in the CPI from the
Commencement Date through the January 1st prior to the Adjustment Date.
"ADJUSTMENT DATE" shall be the first day of the first Lease Month of each
Renewal Term. The term "CPI" shall have the meaning specified therefor in
Section 12.6.
Tenant shall also pay at the same times and places as the
rental installments such Florida State Sales Tax, other such applicable taxes
due on rentals and all other sums due hereunder either city, state, county or
federal as may be in effect from time to time.
SECTION 3.2 ADDITIONAL RENT AND RENT. All amounts required to be
paid by Tenant under the terms of this Lease, other than Base Rent, are herein
from time to time collectively referred to as "ADDITIONAL RENT." Base Rent and
Additional Rent are herein collectively referred to as "RENT."
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SECTION 3.3 PAYMENT OF RENT. Base Rent shall be payable to
Landlord at the original or changed address of Landlord as set forth in Section
12.1 or to such other persons or at such other addresses in the United States
of America as Landlord may designate from time to time in writing to Tenant;
however, if Tenant receives notice of a default under the Landlord's Financing
(defined below), then Tenant shall have the right, but not the obligation, to
pay to Landlord's Financing Lender (defined below) any sums due and owing on
such Landlord's Financing and all such payments by Tenant shall reduce the
amount of Rent owing to Landlord. Additional Rent shall be paid as herein set
forth.
SECTION 3.4 LATE CHARGE. Any rent or other sum which is not paid
within fifteen (15) days after the date due shall bear interest at the Default
Rate from the date when the same is payable under the terms of this Lease until
the same shall be paid.
SECTION 3.5 ADJUSTMENT TO RENT FOR FORD IMPROVEMENTS. Landlord
and Tenant recognize that Ford Leasing or its related entities ("FORD") may
from time to time require that structural improvements to the Premises be made
as a condition to the continuation of a Ford Dealership upon the Premises. In
the event that Ford requires that such structural improvements be made to the
Premises, Landlord shall, at its expense, construct such improvements. The
Base Rent due pursuant to Section 3.1 hereinabove shall be increased by an
amount equal to the costs of the improvements required by Ford, amortized over
a fifteen (15) year period. The new Base Rent shall commence effective the
next monthly period following the completion of the required improvements.
SECTION 3.6 CHANGE OF FACILITY USE. The principals of Landlord
and Tenant are presently pursuing the possible relocation of the dealership
currently operating from the Premises. Should such relocation occur, alternate
operations for the Premises will be required following vacation. In the event
the revenues derived from the new operation are such that the funds available
for payment of Base Rent are less than those resulting from the operation of
the business at the Premises as of the Commencement Date, then, in such event,
the Base Rent shall be reduced proportionately in a manner consistent with the
relationship that the Base Rent paid prior to such relocation bears to the
revenues derived from current operations on the Premises and the revenues
derived following the placement of the new business operation at the Premises.
In no event shall the Base Rent payable by Tenant be less than the debt service
attributable to the Premises, provided the principal amount of any debt so
serviced shall not increase during the term of the Lease.
ARTICLE 4
TAXES; UTILITIES
SECTION 4.1 IMPOSITIONS DEFINED. "IMPOSITIONS" means all real
estate and ad valorem taxes, and associated levies, including penalties levied
for failure of Tenant to pay any of same in a timely manner, which shall or may
during the Term be assessed, levied or imposed by any Governmental Authority
(defined below) upon (a) the Premises or any part thereof, (b) the buildings or
improvements now or hereafter comprising a part thereof, the appurtenances
thereto or the sidewalks, streets, or vaults adjacent thereto. Impositions
shall not include any income tax, capital levy, estate, succession, inheritance
or transfer taxes, or similar tax of Landlord; any franchise tax imposed upon
any owner of the fee of the Premises; or any income, profits, or revenue tax,
assessment, or charge imposed upon the rent or other benefit received by
Landlord under this Lease by any municipality, county, state, the United States
of America, or any other governmental body, subdivision, agency, or authority
(all of such foregoing governmental bodies are collectively referred to herein
as "GOVERNMENTAL AUTHORITIES").
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SECTION 4.2 TENANT'S OBLIGATIONS. During the Term, Tenant will
pay all Impositions before they become delinquent. Impositions that are
payable by Tenant for the tax year in which this Lease commences as well as
during the year in which the Term ends shall be apportioned so that Tenant
shall pay its share of the Impositions payable by Tenant for the portion of
such Taxes allocable to the portion of such year occurring during the Term.
Where any Imposition that Tenant is obligated to pay may be paid pursuant to
law in installments, Tenant may pay such Imposition in installments as and when
such installments become due. Tenant shall, if so requested, deliver to
Landlord evidence of payment of all Impositions Tenant is obligated to pay
hereunder, concurrently with the making of such payment.
SECTION 4.3 TAX CONTEST. Tenant may, at its expense, contest the
validity or amount of any Imposition for which it is responsible, in which
event the payment thereof may be deferred, as permitted by law, during the
pendency of such contest, if diligently prosecuted. Landlord shall cooperate
with Tenant in connection with any such contest but Landlord shall not be
required to spend any sums or incur any liability in cooperating with Tenant.
All taxes must be paid prior to the date they become delinquent. In the event
that the property subject to this Agreement is encumbered by financing, the
Tenant shall pay all taxes within the time frame established by such lender.
SECTION 4.4 EVIDENCE CONCERNING IMPOSITIONS. The certificate,
advice, xxxx, or statement issued or given by the appropriate officials
authorized by law to issue the same or to receive payment of any Imposition of
the existence, nonpayment, or amount of such Imposition shall be prima facie
evidence for all purposes of the existence, nonpayment, or amount of such
Imposition.
SECTION 4.5 UTILITIES. Tenant shall pay all charges for gas,
electricity, light, heat, air conditioning, power, telephone, and other
communication services, and all other utilities and similar services rendered
or supplied to the Premises, and all water, refuse, sewer service charges, or
other similar charges levied or charged against, or in connection with, the
Premises.
ARTICLE 5
IMPROVEMENTS
SECTION 5.1 ALTERATIONS. At any time and from time to time
during the Term, Tenant may perform such alteration, renovation, repair,
refurbishment, and other work (herein such matters being collectively called
the "ALTERATIONS") with regard to any Improvements as Tenant may elect. All
buildings, structures, and other improvements located at any time on the Land
are herein called the "IMPROVEMENTS." Any and all alterations, renovation,
repair, refurbishment, or other work with regard thereto shall be performed, in
accordance with the following "CONSTRUCTION STANDARDS" herein so referenced):
(i) All such construction or work shall be performed in a good and workmanlike
manner in accordance with good industry practice for the type of work in
question; (ii) All such construction or work shall be done in compliance with
all applicable building codes, ordinances, and other laws or regulations of
Governmental Authorities having jurisdiction; (iii) Tenant shall have obtained
and shall maintain in force and effect the insurance coverage required in
Article 7 with respect to the type of construction or work in question; (iv)
After commencement, such construction or work shall be prosecuted with due
diligence to its completion; and (v) With the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed and shall
be deemed given if a request is not approved or denied within thirty (30) days
after notice, no Alteration shall be made which (x) involves any material
repairs or modifications to the
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structural portions of the Premises, or (y) would impair the market value,
structural integrity or usefulness of the Premises for the purposes for which
the same are presently being used.
SECTION 5.2 MECHANIC'S AND MATERIALMEN'S LIENS. Tenant shall
have no right, authority, or power to bind Landlord or any interest of Landlord
in the Premises for any claim for labor or for material or for any other charge
or expense incurred in construction of any Improvements or performing any
alteration, renovation, repair, refurbishment, or other work with regard
thereto, nor to render Landlord's interest in the Premises liable for any lien
or right of lien for any labor, materials, or other charge or expense incurred
in connection therewith, and Tenant shall in no way be considered as the agent
of Landlord in the construction, erection, or operation of any such
Improvements. If any liens or claims for labor or materials supplied or
claimed to have been supplied to the Premises shall be filed against the
interest of the Landlord, Tenant shall promptly pay or bond such liens to
Landlord's reasonable satisfaction or otherwise obtain the release or discharge
thereof.
SECTION 5.3 OWNERSHIP OF IMPROVEMENTS. During the Term all
currently existing Improvements shall be solely the property of Landlord. All
other Improvements created by Alterations which may be added by Tenant (which
do not constitute replacements of existing Improvements) shall be the property
of Tenant, but at the end of the Term, all then-existing Improvements shall be
the property of Landlord. However, upon expiration or earlier termination of
this Lease, Tenant shall have the right to remove all trade fixtures, movable
equipment, furniture, furnishings and other personal property located in the
Premises and other items not permanently attached to the Premises provided that
Tenant repairs any damages caused by the removal of such items. Nothing
hereinabove withstanding to the contrary, any lifts or hydraulics installed
upon the Premises by Tenant, whether as an original installation or
replacement, shall remain on the Premises and shall become the property of the
Landlord.
SECTION 5.4 ASBESTOS. Landlord shall remain fully liable and
responsible for any asbestos and any other Hazardous Substances as hereinafter
defined present on any portion of the Premises prior to the Commencement Date
of this Lease even if such asbestos is in an unfriable or undisturbed state on
the Commencement Date of this Lease and Tenant thereafter disturbs such
Materials in any manner including, without limitation, in connection with any
Alterations performed by Tenant on the Premises. If Tenant intentionally
disturbs or causes to be disturbed by any contractor or other party any
asbestos presently located on the Premises of which Tenant has actual
knowledge, then any such disturbance of such asbestos shall only be done in
accordance with all laws, regulations, ordinances, or requirements of any
Governmental Authority having jurisdiction in the Premises including, without
limitation, those which govern the disposition of Hazardous Materials. Any
expenses associated with correction of such disturbance caused by the Tenant or
its contractors shall be borne by the Tenant.
ARTICLE 6
USE, ENVIRONMENTAL, MAINTENANCE, AND REPAIRS
SECTION 6.1 USE.
Subject to the terms and provisions hereof, Tenant may use and enjoy
the Premises for the sale, lease, trade, repair or service of motor or other
vehicles and other uses normally associated therewith including, without
limitation, the sale of parts and services. Without limiting the generality of
the foregoing, the provisions relating to use of the Premises shall be broadly
construed to encompass all uses normally associated with premises occupied by
automobile, boat and recreational vehicle dealerships. Tenant shall not use or
occupy, permit the Premises to be used or occupied, nor do or permit anything
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to be done in or on the Premises in a manner which would constitute a public or
private nuisance, or which would violate any laws, regulations, ordinances, or
requirements of any Governmental Authority having jurisdiction in the Premises
including, without limitation, those which relate to Hazardous Materials.
Tenant shall make no use of the Premises which violates the terms of the
Seminole Lease or restrictions imposed by Landlord's Financing Lender, as
hereinafter defined, which are listed on EXHIBIT B hereto. Landlord hereby
represents and warrants to Tenant that the uses set forth in this Section 6.1
do not violate any of the terms or provisions of the Seminole Lease or any
restrictions imposed by Landlord's Financing Lender, and that the Premises, as
currently being used, do not violate any such terms or provisions.
SECTION 6.2 ENVIRONMENT.
(a) For purposes of this Lease, the term "HAZARDOUS MATERIAL"
means (i) any substance, product, waste or other material of any nature
whatsoever which is or becomes listed, regulated, or addressed pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, et seq. ("CERCLA"); the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et
seq.; the Federal Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal
Clean Water Act, 33 U.S.C. Section 1151 et seq.; the National Environmental
Policy Act, 42 U.S.C. Section 1857 et seq.; the Regulations of the
Environmental Protection Agency, 33 C.F.R. and 40 C.F.R.; Chapters 373, 376,
380 and 403 of the Florida Statutes and rules related thereto, including
Chapters 17, 27 and 40 of the Florida Administrative Code; and all Broward
County environmental protection ordinances, (the above-cited Florida state
statutes are hereinafter collectively referred to as the "STATE TOXIC
SUBSTANCES LAWS") or any other federal, state or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect, (ii) any substance, product, waste or other material of any
nature whatsoever which may give rise to liability under any of the above
statutes or under any statutory or common law theory based on negligence,
trespass, intentional tort, nuisance or strict liability or under any reported
decisions of a state or federal court, (iii) petroleum or crude oil other than
petroleum and petroleum products which are contained within regularly operated
motor vehicles, and (iv) asbestos.
(b) Tenant represents, warrants, acknowledges and agrees that:
(i) Subject to the terms and provisions of this
Lease, Tenant will not undertake, permit,
authorize or suffer, the manufacture,
handling, generation, transportation,
storage, treatment, discharge, release,
burial or disposal on, under or about the
Premises of any Hazardous Material, or the
transportation to or from the Premises of any
Hazardous Material;
(ii) Tenant will not cause, permit, authorize or
suffer any Hazardous Material to be placed,
held, located or disposed of, on, under or
about any other real property all or any
portion of which is legally or beneficially
owned (or any interest or estate therein
which is owned) by the Tenant in any
jurisdiction now or hereafter having in
effect a so-called "Superlien" law or
ordinance or any part thereof the effect of
which law or ordinance would be to create a
lien on the Premises to secure any obligation
in connection with the real property in such
other jurisdiction.
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(c) From and after the Commencement Date, Tenant shall keep and
maintain the Premises in compliance with, and shall not cause or permit the
Premises to be in violation of, any federal, state or local laws, ordinances
or regulations relating to health and safety, industrial hygiene or to the
environmental conditions on, under or about the Premises including, but not
limited to, air, soil and ground water conditions. Tenant hereby covenants and
agrees that neither it nor any agent, servant, employee, or tenant shall
generate, manufacture, handle, store, treat, discharge, release, bury or
dispose of on, under or about the Premises, any Hazardous Material. Without
limiting the generality of the foregoing provisions of this Subsection, Tenant
agrees at all times to comply fully and in a timely manner with, and to cause
all of its employees, agents, contractors, subcontractors, tenants and any
other persons occupying or present on the Premises to so comply with, all
federal, state and local laws, regulations, guidelines, codes, statutes and
ordinances applicable to the generation, manufacture, handling, storage,
treatment, discharge, release, burial or disposal of any Hazardous Material
located or present on, under or about the Premises by, through or under Tenant
after the Commencement Date, or the transportation to or from the Premises of
any Hazardous Material. Any sublease executed after the date hereof concerning
the Premises shall contain a provision prohibiting the lessee, and any agent,
servant, employee or tenant of the lessee, from generating, manufacturing,
storing, treating, discharging, releasing, burying or disposing on, under or
about the Premises, or transporting to or from the Premises, any Hazardous
Material.
(d) If the release, threat of release, placement on, under or
about the Premises, or the use, generation, manufacture, storage, treatment,
discharge, release, burial or disposal on, under or about the Premises, or
transportation to or from the Premises, of any Hazardous Material: (i) gives
rise to liability, costs or damages (including, but not limited to, a response
action, remedial action, or removal action) under RCRA, CERCLA, the State Toxic
Substances Laws, or any statutory or common law theory based on negligence,
trespass, intentional tort, nuisance or strict liability or under any reported
decision of a state or federal court, (ii) causes or threatens to cause a
significant public health effect, or (iii) pollutes or threatens to pollute the
environment, the Tenant shall promptly take any and all response, remedial and
removal action necessary to clean up the Premises and any other effected
property and mitigate exposure to liability arising from the Hazardous
Material, if required by law or by any governmental authority.
(e) Tenant shall indemnify, defend with counsel reasonably
satisfactory to Landlord, protect and hold harmless Landlord, its directors,
officers, employees, agents, assigns and any successor or successors to
Landlord's interest under this Lease from and against all claims, actual
damages (including but not limited to special and consequential damages),
punitive damages, injuries, costs, response costs, losses, demands, debts,
liens, liabilities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties and expenses (including but
not limited to attorneys' and expert witness fees and costs incurred in
connection with defending against any of the foregoing or in enforcing this
indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted
against, any indemnified party at any time prior to any retaking of the
Premises by Landlord directly or indirectly arising from or attributable to (i)
any breach by Tenant of any of its agreements, warranties or representations
set forth in this Section 6.2, or (ii) any repair, cleanup or detoxification,
or preparation and implementation of any removal, remedial, response, closure
or other plan concerning any Hazardous Material which arises on, under or about
the Premises after the Commencement Date and is attributable to Tenant and not
to Landlord or any other party not under the control, employed by, contracted
with or affiliated with Tenant, regardless of whether undertaken due to
governmental action. Without limiting the generality of the foregoing
indemnity, such indemnity is intended to operate as an agreement pursuant to
Section 107 (e) of CERCLA, 42 U.S.C. Section 9607(e), to insure, protect, hold
harmless and indemnify Landlord for any liability pursuant to such statute, to
the extent Tenant is liable pursuant to this Section 6.2.
(f) Tenant shall promptly give Landlord (i) a copy of any notice,
correspondence or information it receives from any federal, state or other
governmental authority regarding Hazardous Materials on, under or about the
Premises or Hazardous Materials which affect or may affect the Premises, or
regarding any actions instituted, completed or threatened by any such
governmental authority concerning Hazardous Materials which affect or may
affect the Premises, (ii) written notice of any knowledge or information Tenant
obtains regarding Hazardous Materials on, under or about the Premises or
incurred by Tenant (other than commercially reasonable quantities of
customarily used cleaning compounds and the like and the matters covered
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in subsections (h) and (i) of this Section 6.2), a third party or any
government agency to study, assess, contain or remove any Hazardous Materials
on, under, about or near the Premises for which expense or loss Tenant may be
liable or for which a lien may be imposed on the Premises, (iii) written
notice of any knowledge or information Tenant obtains regarding the release or
discovery of Hazardous Materials on, under or about the Premises or on other
sites owned, occupied or operated by Tenant or by any person for whose conduct
Tenant is or may be responsible, or whose liability may result in a lien on or
otherwise affect the Premises, (iv) written notice of all claims made or
threatened by any third party against Tenant or the Premises relating to
damage, contribution, cost recovery compensation, loss or injury resulting from
any Hazardous Material, and (v) written notice of Tenant's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of
the Premises that could subject the Premises to any restrictions on the
ownership, occupancy, transferability or use of the Premises under any of the
statutes cited in Subsection (a) of this Section or any regulation adopted
pursuant thereto. Notwithstanding anything to the contrary contained herein,
Tenant shall not be under any obligation to provide notice of any contamination
so long as any of the principal(s) of Landlord (currently being Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxx and Xxxxx X. Xxxx) are responsible
for the operation of the dealership at the Premises.
(g) Notwithstanding anything to the contrary contained herein,
the indemnity contained in this Section 6.2 shall continue indefinitely from
the date of Tenant's execution of this Lease and shall survive the termination
of all agreements between Tenant and Landlord. The indemnity contained in this
Section 6.2 in no way limits the scope or enforceability of any other indemnity
contained herein.
(h) Commercially reasonable quantities of customarily used
cleaning compounds and the like, which are stored, used and disposed of in
compliance with applicable environmental laws, shall be excluded from any
obligation of Tenant hereunder this Section 6.2. Commercially reasonable
quantities of products customarily used in Tenant's business and the like,
which are stored, used and disposed of in compliance with applicable
environmental laws, are hereby permitted by Landlord.
(i) Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have no liability or obligation under this Section 6.2 or
elsewhere in this Lease for any matter existing on, under or about the
Premises prior to the Commencement Date, including, without limitation, the
removal or remediation of any Hazardous Materials and Landlord shall maintain
full liability for such pre-Commencement Date contamination. Landlord shall
indemnify, defend with counsel reasonably satisfactory to Tenant, protect and
hold harmless Tenant, its directors, officers, employees, agents, assigns and
any successor or successors to Tenant's interest under this Lease from and
against all claims, actual damages (including but not limited to special and
consequential damages), punitive damages, injuries, costs, response costs,
losses, demands, debts, liens, liabilities, causes of action, suits, legal or
administrative proceedings, interest, fines, charges, penalties and expenses
(including but not limited to attorneys' and expert witness fees and costs
incurred in connection with defending against any of the foregoing or in
enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by,
or asserted against, any indemnified party directly or indirectly arising from
or attributable to (1) any breach by Landlord any of its agreements, warranties
or representations set forth in this Section 6.2(i), or (2) any repair, cleanup
or detoxification, or preparation and implementation of any removal, remedial,
response, closure or other plan concerning any Hazardous Material on, under or
about the Premises prior to the Commencement Date attributable to Landlord or
any other party under the control, employed by, contracted with or otherwise
associated with Landlord in any manner, regardless of whether undertaken due to
governmental action. Without limiting the generality of the foregoing
indemnity, such indemnity is intended to operate as an agreement pursuant to
Section 107 (e) of CERCLA, 42 U.S.C. Section 9607(e), to insure, protect, hold
harmless and indemnify Tenant for any liability pursuant to such statute, to
the extent Landlord is liable pursuant to this Section 6.2(i).
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SECTION 6.3 MAINTENANCE AND REPAIRS. During the Term of this
Lease, in addition to the Rent herein provided, Tenant agrees to pay all costs
and charges for repair and maintenance of the Premises, except as otherwise
provided herein. Tenant agrees to surrender the Premises at the expiration or
earlier termination of this Lease in as good condition as at the commencement
of the term of this Lease except, Tenant shall not be responsible for the
repair or condition of those portions of the premises which Landlord agrees to
maintain nor damage by dry rot, termites, sinking of floors, or ordinary wear
and tear. Landlord agrees to maintain in good repair, at Landlord's cost, the
roof, outer walls (which will include the bulkheads under plate glass windows),
downspouts, underground plumbing, underground and in the wall wiring, support
of floors, and, without limitation, structural portions of the Premises.
Tenant shall keep in good repair the electrical equipment, air conditioning
equipment and heating equipment, and when required, Tenant shall replace such
components with items of at least scope and quality of those being replaced.
In the event Tenant has replaced any of such equipment prior to the end of its
normal useful life and the Term of this Lease terminates or expires in
accordance with the provisions contained in this Lease, then Landlord shall pay
to Tenant on such termination date or expiration date, as the case may be, an
amount equal to the cost of such equipment paid by Tenant times a fraction, the
numerator of which is the number of months in the normal useful life of such
equipment minus the number of months from the date of installation of such
equipment to the date of termination or expiration, as the case may be, of the
Term, and the denominator of which is the number of months in the normal useful
life of such equipment. No such payment shall be required to made by Landlord
if the Term is terminated due to the occurrence and continuation of a Default
by Tenant. Tenant agrees to replace any plate, window or door glass broken in
the Premises with glass of like kind and quality, except Tenant shall not be
required to replace glass broken due to settlement or defective construction of
the building or due to the failure of Landlord to maintain and repair those
portions of the Premises which Landlord agrees herein to maintain and repair or
due to negligent repair of said premises by Landlord. Landlord agrees to
replace glass broken in the Premises when breakage is due to any of the causes
set forth in the next preceding sentence which shall relieve Tenant from
replacing said glass as set forth herein. Landlord and Tenant shall, comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county and municipal authorities pertaining to
the Premises, including the Americans with Disabilities Act. Any repairs
required to be made by the Landlord and Tenant shall be made in a prompt and
workmanlike manner. All goods and materials used shall be in quality equal to
or better than that being replaced. The Tenant shall supply the Landlord with
copies of all warranties offered as to any replacements and shall supply
Landlord with copies of any invoices for repairs or replacements, the cost of
which exceeds $5,000.00. Tenant's failure to supply such warranties and
invoices shall not be deemed a default under the terms of this Lease. Landlord
and Tenant shall, comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and municipal
authorities pertaining to the Premises, including the Americans with
Disabilities Act. Any repairs required to be made by the Landlord and Tenant
shall be made in a prompt and workmanlike manner. All goods and materials used
shall be in quality equal to or better than that being replaced. The Tenant
shall supply the Landlord with copies of all warranties offered as to any
replacements and shall supply Landlord with copies of any invoices for repairs
or replacements, the cost of which exceeds $5,000.00. Tenant's failure to
supply such warranties and invoices shall not be deemed a default under the
terms of this Lease.
Subject to the other terms of this Lease, Tenant acknowledges that it
has inspected and that the Premises, including all fixtures, equipment and
furnishings contained therein, are in satisfactory or excellent condition and
accepts the Premises in its "AS IS" condition, without requiring Landlord to
make any repairs or replacements thereof. Tenant hereby waives any objection
to and releases Landlord from
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any liability arising from the condition of the Premises from and after the
Commencement Date, except for matters as herein set forth.
Any Improvements being constructed upon the Land together with all
equipment and hardware, may be warrantied by third party vendors who have
performed labor or rendered materials thereto. The Tenant shall be entitled to
the benefit of all such warranties and the Landlord shall fully cooperate in
securing the services of such third party vendors for warranty work during the
Term of this Lease.
SECTION 6.4 AMERICANS WITH DISABILITIES ACT. Landlord shall be
responsible for compliance with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and
municipal authorities pertaining to the Premises, including the Americans with
Disabilities Act, attributable to the Premises as of the Commencement Date of
this Lease. In the event the Tenant makes any modifications to the Premises,
all such modifications shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and
municipal authorities pertaining to the Premises, including the Americans with
Disabilities Act, including modifications which are required by such
governmental agencies, as a result of such modifications, to remaining
unmodified portions of the Premises.
ARTICLE 7
INSURANCE AND INDEMNITY
SECTION 7.1 BUILDING INSURANCE. Tenant will, at its cost and
expense, keep and maintain in force the following policies of insurance:
(1) Insurance on the Improvements against loss or damage by fire
and against loss or damage by any other risk now and from time to time insured
against by "extended coverage" provisions of policies generally in force on
improvements of like type in the city in which the Premises are located, and in
builder's risk completed value form during construction of improvements by
Tenant, in amounts sufficient to provide coverage for the full insurable value
of the Improvements; the policy for such insurance shall have a replacement
cost endorsement or similar provision. "FULL INSURABLE VALUE," shall mean
actual replacement value (exclusive of cost of excavation, foundations, and
footings below the surface of the ground or below the lowest basement level),
and such full insurable value shall be determined by Tenant's insurer, and
confirmed from time to time at the request of Landlord by one of the insurers.
The Tenant shall maintain all storm and flood insurances which are customarily
maintained for properties similar to the Premises in the County in which the
Premises are located, or which is required by Landlord's Lender (if any), and
only if such coverage is available, to fully insure the Improvements including
all such coverages which might later come into existence as a result of changes
in the insurance coverages available or required in the future.
(2) Worker's Compensation Insurance as to Tenant's employees
involved in the construction, operation, or maintenance of the Premises in
compliance with applicable law.
(3) Such other insurance against other insurable hazards which at
the time are commonly insured against in the case of improvements similarly
situated, due regard being given to the height and type of the Improvements,
their construction, location, use, and occupancy.
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SECTION 7.2 LIABILITY INSURANCE. Tenant shall secure and
maintain in force comprehensive general liability insurance, including
contractual liability specifically applying to the provisions of this Lease and
completed operations liability, with limits of not less than Ten Million
Dollars ($10,000,000) with respect to bodily injury or death to any number of
persons in any one accident or occurrence and with respect to property damage
in any one accident or occurrence, such limits to be increased in the event of
request by Landlord by an amount which may be reasonable at the time.
SECTION 7.3 POLICIES. All insurance maintained in accordance
with the provisions of this Article 7 shall be issued by companies reasonably
satisfactory to Landlord, and shall be carried in the name of both Landlord and
Tenant, as their respective interests may appear, and shall contain a mortgagee
clause acceptable to the Landlord's Financing Lender and the Permitted
Mortgagees. All property policies shall (i) be subject to prior written
approval of Landlord, which shall not be unreasonably withheld or delayed, and
(ii) expressly provide that any loss thereunder may be adjusted with Tenant,
Landlord's Financing Lender and Permitted Mortgagees, but, unless required
otherwise under Landlord's Financing, shall be payable to Tenant and disbursed
as set forth in Section 8.2. All property and liability insurance policies
shall name Landlord as an additional named insured and shall include
contractual liability endorsements. Tenant shall furnish Landlord, Landlord's
Financing Lender and each Permitted Mortgagee with evidence of all insurance
policies required under this Article 7 and shall furnish and maintain with each
of such parties, at all times, a certificate of the insurance carrier
certifying that such insurance shall not be canceled without at least fifteen
(15) days advance written notice to each of such parties.
SECTION 7.4 TENANT'S INDEMNITY. Subject to Section 7.6, Tenant
shall indemnify and hold harmless Landlord, its shareholders, partners,
trustees, members, directors, officers, employees and its successors and
assigns (the "INDEMNIFIED LANDLORD PARTIES"), from all claims, suits, actions,
and proceedings whatsoever which may be brought or instituted on account of or
growing out of any Default and any and all injuries or damages, including
death, to persons or property on the Premises and all losses, liabilities,
judgments, settlements, costs, penalties, damages, and expenses relating
thereto, including but not limited to attorneys' fees and other costs of
defending against, investigating, and settling the Claims, to the extent, but
only to the extent, such Claims are not attributable to (i) events or
conditions that occurred or existed, in whole or in part, prior to the date
when Tenant first occupied the Premises or (ii) failure of any components of
the Improvements that Landlord is required to maintain ("CLAIMS"), Tenant shall
assume on behalf of the Indemnified Landlord Parties and conduct with due
diligence and in good faith the defense of all such Claims against any of the
Indemnified Landlord Parties. Tenant may contest the validity of any such
Claims, in the name of Landlord or Tenant, as Tenant may deem appropriate,
provided that the expenses thereof shall be paid by Tenant. The foregoing
covenants and agreements of Tenant shall survive the expiration or termination
of this Lease.
SECTION 7.5 LANDLORD'S INDEMNITY. Subject to Section 7.6,
Landlord shall indemnify and hold harmless Tenant, its shareholders, partners,
trustees, members, directors, officers, employees and its successors and
assigns (the "INDEMNIFIED TENANT PARTIES"), from all claims which may be
brought or instituted on account of or growing out of any default by Landlord
of its obligations under this Lease and all injuries or damages, including
death, to persons or property on the Premises and all losses, liabilities,
judgments, settlements, costs, penalties, damages, and expenses relating
thereto, including but not limited to attorneys' fees and other costs of
defending against, investigating, and settling the claims, to the extent, but
only to the extent, any such claims are attributable to or arise out of: (i)
events or conditions that existed or occurred, in whole or in part, prior to
the date when Tenant first occupied the Premises; (ii)
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failure of any components of the Improvements which Landlord is required to
maintain; and (iii) Landlord's representations or warranties or asbestos in any
form which is present on the Premises prior to the date of this Lease.
Landlord shall assume on behalf of the Indemnified Tenant Parties and conduct
with due diligence and in good faith the defense of all Claims against any of
the Indemnified Tenant Parties. Landlord may contest the validity of any
Claims, in the name of Landlord or Tenant, as Landlord may deem appropriate,
provided that the expenses thereof shall be paid by Landlord. The foregoing
covenants and agreements of Landlord shall survive the Term and expiration or
termination of this Lease.
SECTION 7.6 SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all rights of
recovery, claims, actions, or causes of action against the other, its agents,
officers, and employees for any loss or damage that may occur to any
improvements located on the Premises, or any part thereof, or any personal
property of such party therein, by reason of fire, the elements, or any other
cause which is insured under standard "all risk of direct loss" insurance
policies available in the state in which the Premises are located, regardless
of cause or origin, including negligence of either party hereto, its agents,
officers, or employees. No insurer of one party shall hold any right of
subrogation against the other party as to any such loss or damage.
ARTICLE 8
CASUALTY; CONDEMNATION
SECTION 8.1 TENANT'S OBLIGATION TO RESTORE. Subject to the other
terms of this Section 8.1, in the event of damage to, or destruction of, any
Improvements by fire or other casualty, Tenant shall promptly repair, replace,
restore, and reconstruct the same, all in compliance with the provisions of
Section 8.2. If insurance proceeds are insufficient to pay for required
replacement, repairs, restoration, etc., then Tenant shall be obligated to
promptly repair, replace, restore, and reconstruct the Improvements, all in
compliance with the provisions of Section 8.2, notwithstanding the
unavailability of insurance proceeds for such purpose. In the event that a
Permitted Mortgagee (as hereinafter defined) or Landlord's Financing Lender (as
hereinafter defined), as the case may be, requires that payment of insurance
proceeds be made to it and not be made available for required replacement,
repairs, restoration, etc., then to the extent that such funds are withheld,
the Tenant shall not be responsible for performing required replacement,
repairs, restoration, or reconstruction of the Improvements. In the event of a
casualty loss wherein the insurance proceeds are not be used for replacement,
repairs, restoration, etc., or the Improvements, as a result of Landlord's
Financing Lender or by consent of the parties, the insurance proceeds shall be
applied as follows:
(1) first, to pay the cost of razing the Improvements and
leveling, cleaning and otherwise putting the Premises in good
order;
(2) second, to Landlord's Financing Lender;
(3) third, to the payment to Tenant for any of its improvements;
and
(4) fourth, to Landlord, to the extent of any remaining proceeds.
Distribution of insurance proceeds is being made in conformity with Section 5.3
of this Lease.
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Notwithstanding the foregoing, in the event of destruction or damage
involving more than seventy-five percent (75%) of the interior floor area of
the Improvements, Tenant shall have no obligation to rebuild unless the
Landlord and Tenant may agree to rebuild the Improvements. In the event the
parties have not agreed to rebuild the Premises then it is recognized between
Landlord and Tenant that it is their intent to relocate the operations to
another location. In the event of such relocation, this Lease shall terminate
effective as to the affected Premises as of the date of such damage or
destruction and the insurance proceeds received by the Landlord and Tenant [as
to Tenant, for Tenant's Improvements, the right to same carrying forward as to
the new location] shall be utilized for the construction of new Improvements at
an alternative location. In the event that the costs of construction of the
Improvements for which the Landlord is responsible exceeds the insurable value
of the operation which was subject to the casualty, the Landlord shall pay the
additional costs for Improvements, and the annual Base Rent due pursuant to
Section 3.1 shall be increased by an amount equal to ten (10%) percent of the
Landlord's additional cost of construction of the new facility. This Lease,
except for the adjustment of Base Rent as described above, shall govern as to
the rights and obligations of the Landlord and Tenant at the substituted
location, however, the Term of the Lease shall be in abeyance during the period
of construction of the alternative Improvements. Tenant's obligation for
payment of Base Rent and other monetary sums under this Lease as applicable to
the new Premises shall commence as of the later to occur of (i) the date the
improvements to be constructed on the new Premises are certified as complete by
the applicable architect for such improvements in accordance with the plans and
specifications agreed to in writing by Landlord and Tenant and (ii) the date a
Certificate of Occupancy is obtained for the operation of such new
improvements. Landlord and Tenant shall, in good faith, fully cooperate with
one another in the selection of the alternative site and relative to
preparation of plans for Improvements and construction thereof. Nothing
hereinabove withstanding to the contrary, if the Tenant failed to maintain
insurance coverage required herein and as a result, proceeds are paid by the
insurance company which are less than the full insurable value of the
Improvements, Tenant shall be solely responsible for any such deficiency.
SECTION 8.2 RESTORATION AND DEPOSIT OF FUNDS.
(a) Prior to Tenant commencing any repair, restoration or
rebuilding pursuant to Section 8.1 involving an estimated cost of more than One
Hundred Thousand Dollars ($100,000), Tenant shall submit to Landlord for its
approval, which will not be unreasonably withheld or delayed: (i) plans and
specifications therefor, prepared by a licensed architect reasonably
satisfactory to Landlord; (ii) copies of appropriate governmental permits;
(iii) an estimate of the cost of the proposed work, certified to by said
architect (iv) a fixed price construction contract in an amount not in excess
of such architect's estimated cost from a reputable and experienced general
contractor; and (v) satisfactory evidence of sufficient contractor's
comprehensive general liability insurance covering Landlord, builder's risk
insurance, and worker's compensation insurance. Upon completion of any such
work by or on behalf of Tenant, Tenant shall provide Landlord with written
evidence, in form and substance reasonably satisfactory to Landlord, showing
that (i) Tenant has paid all contractors for all costs incurred in connection
with such repair, restoration or rebuilding, and (ii) that the Premises is not
encumbered by any mechanic's or materialmen's liens relating to such repair,
restoration or rebuilding. Regarding Tenant's obligations with respect to
mechanic's or materialmen's liens, reference is made herein to all of the terms
and provisions of Section 5.3 in connection with such repair, restoration or
rebuilding.
(b) Provided that a Default does not then exist, then all sums
arising by reason of such loss under insurance policies maintained by Tenant,
shall be deposited with the Depositary (as hereinafter
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defined) to be available to Tenant for the repair, restoration and rebuilding
of the Premises. Tenant shall diligently pursue the repair, restoration and
rebuilding of the improvements in a good and workmanlike manner using only
materials which are of a quality comparable to the quality of the materials
used in the Improvements prior to their destruction or damage. The insurance
proceeds will be disbursed to Tenant by the Depositary after delivery of
evidence reasonably satisfactory to the Depositary that (A) such repairs,
restoration, or rebuilding have been completed and effected in compliance with
the plans and specifications for the restoration or rebuilding, (B) no
mechanic's and materialman's liens against the Premises have been filed, or
that all such liens have been paid or bonded around, and (C) all payments for
work performed and materials purchased as of the date of such disbursement for
which mechanic's and materialman's liens might arise have been paid or will be
paid from such disbursement or that all such potential liens have been paid or
bonded around. At the option of Tenant, such proceeds shall be advanced in
reasonable installments. Each such installment (except the final installment)
shall be advanced in an amount equal to the cost of the construction work
completed since the last prior advance (or since commencement of work as to the
first advance) less statutorily required retainage in respect of mechanic's and
materialman's liens or retainage which may be required by Landlord's Financing
Lender in an amount not to exceed ten percent (10%) of such cost. The amount
of each installment requested shall be certified as being due and owing by
Tenant's architect in charge, and each request shall include all bills for
labor and materials for which reimbursement is requested and reasonably
satisfactory evidence that no lien has been placed against the Premises for any
labor or material furnished for such work. The final disbursement, which shall
be an amount equal to the balance of the insurance proceeds, shall be made upon
receipt of (1) an architect's certificate of substantial completion as to the
work from Tenant's architect, (2) reasonably satisfactory evidence that all
bills incurred in connection with the work have been paid and (3) issuance of a
certificate of occupancy by the applicable governmental agency, if required.
The term "DEPOSITARY", as used herein, shall mean either: (i) Landlord's
Financing Lender, or its designee provided that Landlord's Financing Lender is
an institutional lender, its designee is not an Affiliate of Landlord, and such
entity holds such funds in accordance with the terms of this lease, or related
in any other manner to Landlord), or (ii) such other party that is acceptable
to Landlord and Tenant, if there is no such Landlord's Financing Lender or if
such Landlord's Financing Lender has refused to act as Depositary.
(c) If no Default then exists, any excess of money received from
insurance policies remaining with the Depositary after the repair or rebuilding
of the Improvements shall, to the extent required by any Permitted Mortgagee,
be applied to payment of Tenant's Permitted Mortgage, otherwise any such
proceeds shall be paid to Tenant.
(d) If Tenant shall not commence the repair or rebuilding of the
Improvements within a period of sixty (60) days after damage or destruction by
fire or other casualty and prosecute the same thereafter with such dispatch as
may be necessary to complete the same within a reasonable period after said
damage or destruction occurs; then, in addition to all other remedies Landlord
may have either under this Lease, at law or in equity, the money received by
and remaining in the hands of the Depositary shall be paid to and retained by
Landlord as security for the continued performance and observance by Tenant of
Tenant's covenants and agreements hereunder.
SECTION 8.3 NOTICE OF DAMAGE. Tenant shall immediately notify
Landlord and each Permitted Mortgagee of any destruction or damage to the
Premises.
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SECTION 8.4 TOTAL TAKING. Should the entire Premises be taken
(which term, as used in this Article 8, shall include any conveyance in
avoidance or settlement of eminent domain, condemnation, or other similar
proceedings) by any Governmental Authority, corporation, or other entity under
the right of eminent domain, condemnation, or similar right, then Tenant's
right of possession under this Lease shall terminate as of the date of taking
possession by the condemning authority, and the award therefor will be
distributed as follows: (1) first, to the payment of all reasonable fees and
expenses incurred in collecting the award; (2) second, to Landlord's Financing
Lender; and (3) third, to Landlord and Tenant, to the extent of their interests
in the Premises, as the court having such jurisdiction of such taking shall
determine taking into account certain factors including, without limitation,
the term of the leasehold estate of the Tenant and the ownership interest of
Landlord. After the determination and distribution of the condemnation award
as herein provided, the Lease shall terminate.
SECTION 8.5 PARTIAL TAKING. Should a portion of the Premises be
taken by any Governmental Authority, corporation, or other entity under the
right of eminent domain, condemnation, or similar right, this Lease shall
nevertheless continue in effect as to the remainder of the Premises unless, in
Tenant's reasonable judgment, so much of the Premises shall be so taken as to
make it economically unsound to use the remainder for the uses and purposes
contemplated hereby, whereupon this Lease shall terminate as of the date of
taking of possession by the condemning authority in the same manner as if the
whole of the Premises had thus been taken, and the award therefor shall be
distributed as provided in Section 8.4. In the event of a partial taking where
this Lease is not terminated, all awards payable in respect thereof shall be
payable to Landlord and Tenant, to the extent of their interests in the
Premises, as the applicable condemning authority shall determine taking into
account certain factors including, without limitation, the term of the
leasehold estate of the Tenant and the ownership interest of Landlord.
Following such partial taking, Landlord shall make all necessary repairs or
alterations to the remaining Premises, required to make the remaining portions
of the Premises an architectural whole. The Base Rent payable hereunder during
the unexpired portion of the Lease shall be reduced to the extent fair and
reasonable under the circumstances, effective on the date physical possession
is taken by the condemning authority. Tenant acknowledges that tentative plans
exist for the widening of Xxxxx Xxxx 000, xxxx xxxx running along the west
boundary of the property. Should the applicable governmental agency effectuate
the taking of land for the widening of State Road 441, the Tenant agrees that
such taking shall not constitute a basis for termination of this lease. As of
the date of the execution of this Lease, to the best of Landlord's knowledge,
the widening of State Road 441 will involve property already within the right-
of-way owned by the applicable governmental agency.
SECTION 8.6 TEMPORARY TAKING. If the whole or any portion of the
Premises shall be taken for temporary use or occupancy, the Term shall not be
reduced or affected. The Base Rent payable hereunder during the unexpired
portion of the Lease shall be reduced to the extent fair and reasonable under
the circumstances and Tenant shall be entitled to receive the entire amount of
any award therefor, less the amount of the reduction in the Base Rent.
SECTION 8.7 NOTICE OF TAKING, COOPERATION. Tenant shall
immediately notify Landlord and each Permitted Mortgagee of the commencement of
any eminent domain, condemnation, or other similar proceedings with regard to
Premises. Landlord and Tenant covenant and agree to fully cooperate in any
condemnation, eminent domain, or similar proceeding in order to maximize the
total award receivable in respect thereof.
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ARTICLE 9
TENANT'S FINANCING
SECTION 9.1 TENANT'S RIGHT TO ENCUMBER. Tenant shall have the
right, from time to time and at any time, without Landlord's consent or
joinder, to encumber its interest in this Lease and the leasehold estate hereby
created with one or more deeds of trust, mortgages, or other lien instruments
to secure any borrowings or obligations of Tenant. Any such mortgages, deeds
of trust, and/or other lien instruments, and the indebtedness secured thereby,
provided that Landlord has been given notice thereof, are herein referred to as
"PERMITTED MORTGAGES," and the holder or other beneficiary thereof are herein
referred to as "PERMITTED MORTGAGEES."
SECTION 9.2 TENANT'S MORTGAGE. If Tenant encumbers its interest
in this Lease and the leasehold estate hereby created with liens as above
provided, then Tenant shall notify Landlord thereof, providing with such notice
the name and mailing address of the Permitted Mortgagee in question, Landlord
shall upon request, acknowledge receipt of such notice, and for so long as the
Permitted Mortgage in question remains in effect the following shall apply:
(a) Landlord shall give to the Permitted Mortgagee a duplicate
copy of any and all notices which Landlord gives to Tenant pursuant to the
terms hereof, including notices of default, and no such notice shall be
effective until such duplicate copy is transmitted to such Permitted Mortgagee,
in the manner provided in Section 12.1.
(b) There shall be no cancellation, surrender, or modification of
this Lease by joint action of Landlord and Tenant without the prior written
consent of the Permitted Mortgagee.
(c) If a Default should occur hereunder, then Landlord
specifically agrees that:
(1) Landlord shall not enforce or seek to enforce any of
its rights, recourses, or remedies, until a notice specifying the event giving
rise to such Default has been transmitted to the Permitted Mortgagee, in the
manner provided in Section 12.1, and if the Permitted Mortgagee proceeds to
cure the Default within a period of thirty (30) days after receipt of such
notice or, as to non-monetary events of Default which by their very nature
cannot be cured within such time period, the Permitted Mortgagee commences
curing such Default within such time period and thereafter diligently pursues
such cure to completion within sixty (60) days thereafter, then any payments
made and all things done by the Permitted Mortgagee to effect such cure shall
be as fully effective to prevent the exercise of any rights, recourses, or
remedies by Landlord as if done by Tenant;
(2) if the Default is a non-monetary default, the
Permitted Mortgagee shall have a period of time in which to cure such Default
equal to the greater of (i) the time period for such curing that is applicable
to Tenant under the terms of this Lease, or (ii) sixty (60) days after the date
that the Permitted Mortgagee has been notified of such Default, provided that
the Permitted Mortgagee cures all defaults relating to the payment of Base Rent
and neither Landlord nor the Premises is or would be liable or subject to any
lien, tax, penalty, expense, liability, or damages because of such Default. If
Landlord or the Premises is or will be liable or subject to any such lien, tax,
penalty, expense, liability or damages because of the Default, then for so long
as the Permitted Mortgagee is diligently and with continuity attempting to
secure possession of the Premises (whether by foreclosure or other procedures),
and provided such delay does not jeopardize the interests of the Landlord,
Landlord shall allow the Permitted Mortgagee such time as may be reasonably
necessary under the circumstances to obtain possession of the
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Premises in order to cure such Default, and during such time Landlord shall not
enforce or seek to enforce any of its rights, remedies or recourses hereunder;
and
(d) No Permitted Mortgagee shall be or become liable to Landlord
as an assignee of this Lease until such time as such Permitted Mortgagee, by
foreclosure or other procedures, shall either acquire the rights and interests
of Tenant under this Lease or shall actually take possession of the Premises,
and upon such Permitted Mortgagee's assigning such rights and interests to
another party or upon relinquishment of such possession, as the case may be,
such Permitted Mortgagee shall have no further such liability.
ARTICLE 10
WARRANTY OF TITLE AND PEACEFUL POSSESSION
AND LANDLORD'S FINANCING
SECTION 10.1 WARRANTY AS TO ENCUMBRANCES. Landlord represents,
warrants and covenants that: (i) the representations and warranties set forth
in Section 10.3 are true and correct; (ii) it owns title to the Land and the
Premises free and clear of all liens, claims and encumbrances except the liens
described in EXHIBIT B hereto securing the financing described therein
("LANDLORD'S FINANCING") and the other encumbrances specifically described in
such EXHIBIT B; (iii) except as otherwise set forth in Section 10.2, Landlord's
Financing shall not be modified in any manner without the prior written consent
of Tenant; and (iv) the lender providing such Landlord's Financing ("LANDLORD'S
FINANCING LENDER") has executed, caused to be acknowledged (notarized in
accordance with applicable law) and delivered to Landlord and Tenant a mutual
recognition and attornment agreement, in form and substance reasonably
satisfactory to Tenant, suitable for recording in the appropriate records to
notify third parties of the existence of such agreement and that the Land and
the Premises are subject thereto. Such agreement shall provide, among other
provisions, that the Tenant's interest under this Lease shall be subordinate to
the Landlord's Financing and that the Landlord's Financing Lender shall (i)
give to Tenant a duplicate copy of any and all notices which Landlord's
Financing Lender gives to Landlord, including notices of default, and no such
notice shall be effective until such duplicate copy is actually received by
Tenant in the manner provided in Section 12.1; (ii) give Tenant the right and
opportunity to cure any defaults under the Landlord's Financing; and (iii)
recognize and consent to Tenant's rights under this Lease in the event of a
foreclosure or deed in lieu thereof so long as Tenant continues to perform its
obligations under this Lease. As used herein, the term (A) "LANDLORD'S
FINANCING LENDER" shall also include any lender that refinances Landlord's
Financing or makes a new loan to Landlord, subject to Section 10.2, and (B)
"LANDLORD'S FINANCING" shall include all financing secured by liens covering
all or any portion of the Premises which are permitted under the terms of this
Lease, including, without limitation, all new loans.
Moreover, Landlord covenants that Tenant shall and may peaceably and
quietly have, hold, occupy, use, and enjoy the Premises during the Term, and
may exercise all of its rights hereunder, subject only to the provisions of
this Lease and applicable governmental laws, rules, and regulations; and
Landlord agrees to warrant and forever defend Tenant's right to such occupancy,
use, and enjoyment and the title to the Premises against the claims of any and
all persons whomsoever lawfully claim the same, or any part thereof, subject
only to provisions of this Lease and all applicable governmental laws, rules,
and regulations.
Landlord's Financing Lender shall not be or become liable to Tenant as
an assignee of Landlord's interest in this Lease until such time as such
Landlord's Financing Lender, by foreclosure or other
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procedures, shall either acquire the rights and interests of Landlord under
this Lease, and upon Landlord's Financing Lender's assigning such rights and
interests to another party, Landlord's Financing Lender shall have no further
such liability.
To the extent that Tenant cures any defaults of Landlord under
Landlord's Financing, Tenant shall receive a credit against the Base Rent due
pursuant to Section 3.1 hereinabove in an amount equal to the amount advanced
by Tenant to cure such defaults, together with interest at the Tenant's parent
company's customary borrowing rate as may be in effect from time to time. Such
credit shall be charged against the monthly Base Rent installments, commencing
as of the first monthly rental payment due after the first of such advances,
until such time as the entire amount of such credit is exhausted. Thereafter,
Base Rent shall commence in amounts required in Section 3.1 hereinabove,
including payment of any partial installment which may be due as a result of a
credit to the final monthly credit which is less than the full monthly Base
Rent due.
SECTION 10.2 LANDLORD'S MORTGAGE. During the Term, none of
Landlord's Financing may be modified or refinanced or any new loan made except
in accordance with the following:
(a) The total mortgage indebtedness and encumbrances of any type
against the Premises after the proposed refinancing or modification or new loan
of Landlord's Financing does not exceed eighty percent (80%) of the fair market
value of the Premises including any improvements being made with financing
obtained for such construction or the loan balance in existence as of the
effective date of this Lease, whichever is greater; and
(b) The effect of any such modification, refinancing or new loan
does not result in an increase in principal and interest payable by Landlord
during any Lease Year which exceeds Base Rent required to be paid by Tenant
during any Lease Year.
SECTION 10.3 REPRESENTATIONS OF LANDLORD. Landlord represents and
warrants to Tenant as of the effective date of this Lease that:
(a) The Premises are not subject to any prior lease, easement,
adverse claim, or claims of parties in possession, whether or not shown by the
public records, except as set forth on EXHIBIT B.
(b) There is no pending or threatened condemnation action or
agreement in lieu thereof which will or may affect the Premises or any part
thereof in any respect whatsoever, except as noted in Section 8.5 hereinabove.
(c) There is no action, suit or proceeding, including
environmental, pending or threatened against or affecting the Premises or any
part thereof.
(d) The execution, delivery and performance of this Lease by
Landlord has been duly authorized and this Lease is valid and enforceable
against Landlord in accordance with its terms.
(e) Landlord has no knowledge of any fact, action or proceeding,
including environmental, whether actual, pending or threatened, which could
result in the modification or termination of the present zoning classification
of the Premises, or the termination of full free and adequate access to and
from the Premises from all adjoining public highways and roads.
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(f) Landlord has not agreed to lease or convey or granted any
rights with respect to or any part of the Premises or any interest therein to
any other person or entity.
(g) The Premises are not subject to any restrictions (recorded or
unrecorded), building and zoning laws or ordinances, or other laws, ordinances,
rules, regulations and requirements of any Governmental Authority having
jurisdiction which do or could prohibit the use of the Premises for the uses
set forth in this Lease.
(h) Landlord has not received any notice from any Governmental
Authority having jurisdiction over the Premises requiring or specifying any
work to be done to the Premises.
(i) Landlord has no knowledge of any existing, threatened or
contemplated action, circumstances or conditions (including but not limited to
subsurface conditions) which would materially interfere with the development or
use of the Premises for an automobile dealership.
(j) As of the date hereof the Premises are, and on the
Commencement Date the Premises will be in compliance in all material respects
with all restrictive covenants and other restrictions applicable to the
Premises and all applicable statutes, ordinances, rules and regulations
(federal, state, county and municipal), including without limitation all
zoning, environmental, building, health, subdivision regulations. Except as to
matters relating to the presence of asbestos contained in the Premises, if any,
the representation and warranty set forth in this Subsection (j) shall not be
applicable to the matters covered under Subsection (m) herein below.
(k) The Premises have legal and physical public access to and from
abutting roadways dedicated to and accepted by the State, City, or County where
the Premises are located.
(l) To the extent zoning regulations are applicable to the
Premises, the Premises are zoned for use as an automobile dealership facility,
for sale, trade, display, service and repair, painting, and other activities
normally associated with a full service automobile dealership.
(m) To the best of Landlord's knowledge, except as may otherwise
be disclosed to Tenant in any written environmental audit report delivered to
Tenant prior to the date of this Lease, no Hazardous Materials, pollutants or
toxic substances have been placed, dumped, deposited or buried upon, in or
under the Premises, there have been no leaks of petroleum, toxic or Hazardous
Materials from any of the underground storage tank facilities and there is no
contaminated soil, as defined by federal, state and/or local laws or
regulations, in, upon or under the Premises by reason of any such wastes,
pollutants, toxins, substances, or facilities. Tenant acknowledges that
certain materials which may be considered Hazardous Materials are used in the
normal course of the business operated on the Premises prior to the
commencement date. Landlord represents that to the best of Landlord's
knowledge, such use complies with all applicable governmental regulations and
that it has no knowledge of any contamination on the Premises.
(n) The Premises have an assured water supply sufficient to permit
the operations now being conducted thereon to be conducted in accordance with
all governmental requirements.
(o) All dimensions in the description to the Premises are net of
existing and proposed rights-of-way, easements and dedications except as set
forth on EXHIBIT B.
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(p) The Premises are not located in a flood plain or a flood
hazard area for which flood insurance would be required or for which flood
insurance is available.
(q) Landlord warrants and guarantees that on the Commencement Date
the wiring, floors, plumbing, underground plumbing, heating, air conditioning
equipment, roofs, outer walls, stairways, doors, windows, plate glass and
sprinkler equipment of the Premises are each and every one in good repair and
are adequate to furnish the proper service for which each was installed and the
heating plant will heat and air conditioning will cool the buildings
constituting part of the Premises in accordance with the generally accepted
design temperatures for the city and state in which the Premises is located.
Landlord further warrants and guaranties that on the Commencement Date, the
Premises and all appurtenances thereto, will comply with the building codes,
fire, sanitary and safety regulations, ordinances and laws of the United States
of America, city, county and state in which the Premises are located. Landlord
further warrants and guarantees that at the commencement of this Lease, the
Premises may be used for the purposes set out in this Lease without violating
any such codes, regulations, ordinances, laws or any restrictive covenants
running with the land.
(r) Landlord has all required occupancy permits and other licenses
or permits required for the use and occupancy of the Premises.
(s) A true and correct copy of the Seminole Lease has been
delivered to Tenant prior to the date hereof, and the Seminole Lease is in full
force and effect and has not been modified except as set forth in Supplemental
Agreement No. 1 dated March 15, 1979 and Supplemental Agreement No. 2 dated
October 30, 1979, true and correct copies of which have been delivered to
Tenant prior to the date hereof.
(t) Landlord is not in default of any its obligations under the
Seminole Lease, and the execution of this Sublease by Landlord and Tenant or
the leasing of the Premises by Tenant will not constitute a default under the
Seminole Lease including, without limitation, the terms and provisions of
Section 7 of the Seminole Lease relating to sublease, assignment or transfer of
this Lease.
(u) None of the other parties to the Seminole Lease is in default
of any of its obligations under the Seminole Lease.
ARTICLE 11
DEFAULT AND REMEDIES
SECTION 11.1 DEFAULT. Each of the following shall be deemed a
"DEFAULT" by Tenant hereunder and a material breach of this Lease:
(a) Whenever Tenant shall fail to pay any sum payable by Tenant to
Landlord or any third party under this Lease on the date upon which the same
is due to be paid, and such default shall continue for ten (10) days after
Tenant shall have been given a written notice specifying such default;
(b) Whenever Tenant shall fail to keep, perform, or observe any of
the covenants, agreements, terms, or provisions contained in this Lease that
are to be kept or performed by Tenant other than with respect to payment of
Rent or other liquidated sums of money, and Tenant shall fail to immediately
commence and take such steps as are necessary to remedy the same within thirty
(30) days after Tenant
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shall have been given a written notice specifying the same, or having so
commenced, shall thereafter fail to proceed diligently and with continuity to
remedy the same;
(c) Whenever an involuntary petition shall be filed against Tenant
under any bankruptcy or insolvency law or under the reorganization provisions
of any law of like import or whenever a receiver of Tenant, or of all or
substantially all of the property of Tenant, shall be appointed without
acquiescence, and such petition or appointment is not discharged or stayed
within sixty (60) days after the happening of such event; or
(d) Whenever Tenant shall make an assignment of its property for
the benefit of creditors or shall file a voluntary petition under any
bankruptcy or insolvency law, or seek relief under any other law for the
benefit of debtors.
(e) Tenant acknowledges that it has received and reviewed the
Seminole Lease and the Supplemental Agreement No. 1 and Supplemental Agreement
No. 2. Tenant shall not take any action which will result in the Landlord's
default under the terms of the Seminole Lease; provided, however, Landlord
represents and warrants that the Tenant's use and occupancy of the Premises as
presently being used will not violate the terms of the Seminole Lease.
SECTION 11.2 REMEDIES. If a Default occurs, then subject to the
rights of any Permitted Mortgagee as provided in Xxxxxxx 0, Xxxxxxxx may at any
time thereafter prior to the curing thereof and without waiving any other
rights hereunder or available to Landlord at law or in equity (Landlord's
rights being cumulative), do any one or more of the following:
(a) Landlord may terminate this Lease by giving Tenant written
notice thereof, in which event this Lease and the leasehold estate hereby
created and all interest of Tenant and all parties claiming by, through, or
under Tenant shall automatically terminate upon the effective date of such
notice with the same force and effect and to the same extent as if the
effective date of such notice were the day originally fixed in Article 2 hereof
for the expiration of the Term; and Landlord, its agents or representatives,
shall have the right, without further demand or notice, to reenter and take
possession of the Premises and remove all persons and property therefrom with
or without process of law, without being deemed guilty of any manner of
trespass and without prejudice to any remedies for arrears of Rent or existing
breaches hereof. In the event of such termination, Tenant shall be liable to
Landlord for damages in an amount equal to (A) the discounted present value of
the amount by which the Rent reserved hereunder for the remainder of the
existing Term (Initial or Renewal) exceeds the then net fair market rental
value of the Premises for such period of time, plus (B) all expenses incurred
by Landlord enforcing its rights hereunder.
(b) Landlord may terminate Tenant's right to possession of the
Premises and enjoyment of the rents, issues, and profits therefrom without
terminating this Lease or the leasehold estate created hereby, reenter and take
possession of the Premises and remove all persons and property therefrom with
or without process of law, without being deemed guilty of any manner of
trespass and without prejudice to any remedies for arrears of Rent or existing
breaches hereof, and lease, manage, and operate the Premises and collect the
rents, issues, and profits therefrom all for the account of Tenant, and credit
to the satisfaction of Tenant's obligations hereunder the net rental thus
received (after deducting therefrom all reasonable costs and expenses of
repossessing, leasing, managing, and operating the Premises). If the net
rental so received by Landlord exceeds the amounts necessary to satisfy all of
Tenant's obligations
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under this Lease, Landlord shall retain such excess. In no event shall
Landlord be liable for failure to so lease, manage, or operate the Premises or
collect the rentals due under any subleases and any such failure shall not
reduce Tenant's liability hereunder. If Landlord elects to proceed under this
Section 11.2(2), it may at any time thereafter elect to terminate this Lease as
provided in Section 11.2(1).
ARTICLE 12
MISCELLANEOUS
SECTION 12.1 NOTICES. All notices, demands, requests or other
communications to be sent by one party to the other hereunder or required by
law shall be in writing and shall be deemed to have been validly given or
served by (a) delivery of the same in person to the intended addressee, (b) by
depositing the same with Federal Express or another reputable private courier
service for next business day delivery to the intended addressee at its address
set forth on the first page of this Agreement or at such other address as may
be designated by such party as herein provided, (c) by facsimile copy
transmission [confirmation sheet indicating transmission to be retained] or (d)
by depositing the same in the United States mail, postage prepaid, registered
or certified mail, return receipt requested, addressed to the intended
addressee at its address set forth below or at such other address as may be
designated by such party as herein provided. All notices, demands and requests
shall be effective upon such personal delivery upon actual receipt, or one (1)
business day after being deposited with the private courier service, or two (2)
business days after being deposited in the United States mail as required
above. Rejection or other refusal to accept or the inability to deliver because
of changed address of which no notice was given as herein required shall be
deemed to be receipt of the notice, demand or request sent. By giving to the
other party hereto at least fifteen (15) days' prior written notice thereof in
accordance with the provisions hereof, the parties hereto shall have the right
from time to time to change their respective addresses and each shall have the
right to specify as its address any other address within the United States of
America. For purposes of notice the addresses of the parties hereto shall,
until changed, be as follows:
Landlord: Xxxxx Development Co.
0000 X. Xxxxx Xxxx 0
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Tenant: Xxxxx Ford, Inc.
Group 1 Automotive, Inc.
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
The parties hereto shall have the right from time to time to change their
respective addresses for purposes of notice hereunder to any other location
within the United States by giving a notice to such effect in accordance with
the provisions of this Section 12.1.
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SECTION 12.2 PERFORMANCE OF OTHER PARTY'S OBLIGATIONS. If either
party hereto fails to perform or observe any of its covenants, agreements, or
obligations hereunder for a period of thirty (30) days after notice of such
failure is given by the other party, then the other party shall have the right,
but not the obligation, at its sole election but not as its exclusive remedy),
to perform or observe the covenants, agreements, or obligations which are
asserted to have not been performed or observed at the expense of the failing
party and to recover all costs or expenses incurred in connection therewith,
together with interest thereon from the date expended until repaid at an annual
rate ("DEFAULT RATE") equal to the lesser of (a) three (3) percent above the
prime rate of interest established from time to time by NationsBank (or a
comparable rate of interest if such rate is not in effect) or (b) the maximum
rate of interest permitted by applicable law. Any performance or observance by
a party pursuant to this Section 12.2 shall not constitute a waiver of the
other party's failure to perform or observe.
SECTION 12.3 MODIFICATION AND NON-WAIVER. No variations,
modifications, or changes herein or hereof shall be binding upon any party
hereto unless set forth in a writing executed by it or by a duly authorized
officer or agent. No waiver by either party of any breach or default of any
term, condition, or provision hereof, including without limitation the
acceptance by Landlord of any Rent at any time or in any manner other than as
herein provided, shall be deemed a waiver of any other or subsequent breaches
or defaults of any kind, character, or description under any circumstance. No
waiver of any breach or default of any term, condition, or provision hereof
shall be implied from any action of any party, and any such waiver, to be
effective, shall be set out in a written instrument signed by the waiving
party.
SECTION 12.4 GOVERNING LAW. This Lease shall be construed and
enforced in accordance with the laws of the state in which the Premises are
located.
SECTION 12.5 NUMBER AND GENDER; CAPTIONS; REFERENCES. Pronouns,
wherever used herein, and of whatever gender, shall include natural persons and
corporations and associations of every kind and character, and the singular
shall include the plural wherever and as often as may be appropriate. Article
and Section headings in this Lease are for convenience of reference and shall
not affect the construction or interpretation of this Lease. Whenever the
terms "hereof," "hereby," "herein," or words of similar import are used in this
Lease, they shall be construed as referring to this Lease in its entirety
rather than to a particular Section or provision, unless the context
specifically indicates to the contrary. Any reference to a particular
"Article" or "Section" shall be construed as referring to the indicated Article
or Section of this Lease.
SECTION 12.6 CPI. "CPI" shall mean the Consumer Price Index for
All Urban Consumers, All Items (Base Year 1982-84 = 100) published by the
United States Department of Labor, Bureau of Labor Statistics. If the 1982-84
Base Year shall no longer be used as an index of 100, the revised index which
would produce results equivalent, as nearly as possible to those which would be
obtained hereunder if the CPI were not so revised.
SECTION 12.7 ESTOPPEL CERTIFICATE. Landlord and Tenant shall
execute and deliver to each other, promptly upon any request therefor by the
other party, a certificate addressed as indicated by the requesting party and
stating: (a) whether or not this Lease is in full force and effect; (b) whether
or not this Lease has been modified or amended in any respect, and submitting
copies of such modifications or amendments; (c) whether or not there are any
existing defaults hereunder known to the party executing
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the certificate, and specifying the nature thereof; (d) whether or not any
particular Article, Section, or provision of this Lease has been complied with;
and (e) such other matters as may be reasonably requested.
SECTION 12.8 SEVERABILITY. If any provision of this Lease or the
application thereof to any person or circumstance shall, at any time or to any
extent, be invalid or unenforceable, and the basis of the bargain between the
parties hereto is not destroyed or rendered ineffective thereby, the remainder
of this Lease, or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby.
SECTION 12.9 ATTORNEY FEES. If litigation is ever instituted by
either party hereto to enforce, or to seek damages for the breach of, any
provision hereof, the prevailing party therein shall be promptly reimbursed by
the other party for all attorneys' fees reasonably incurred by the prevailing
party in connection with such litigation, including all trial and appellate
levels.
SECTION 12.10 SURRENDER OF PREMISES; HOLDING OVER. Upon
termination or the expiration of this Lease, Tenant shall peaceably quit,
deliver up, and surrender the Premises. If Tenant does not surrender
possession of the Premises at the end of the Term, such action shall not extend
the Term, Tenant shall be a tenant at sufferance, and during such time of
occupancy Tenant shall pay to Landlord, as damages, an amount equal to twice
the amount of Rent that was being paid immediately prior to the end of the
Term. Landlord shall not be deemed to have accepted a surrender of the
Premises by Tenant, or to have extended the Term, other than by execution of a
written agreement specifically so stating.
SECTION 12.11 RELATION OF PARTIES. It is the intention of
Landlord and Tenant to hereby create the relationship of landlord and tenant,
and no other relationship whatsoever is hereby created. Nothing in this Lease
shall be construed to make Landlord and Tenant partners or joint venturers or
to render either party hereto liable for any obligation of the other.
SECTION 12.12 FORCE MAJEURE. As used herein "FORCE MAJEURE" means
the occurrence of any event whereby Landlord or Tenant shall be delayed or
prevented from the performance of any act required hereunder by reason of acts
of God, strikes, lockouts, labor troubles, failure or refusal of governmental
authorities or agencies to timely issue permits or approvals or conduct reviews
or inspections, civil disorder, inability to procure materials, restrictive
governmental laws or regulations or other cause without fault and beyond the
control of the party obligated (financial inability excepted). If Tenant or
Landlord shall be delayed, hindered, or prevented from performance of any of
its obligations by reason of Force Majeure, the time for performance of such
obligation shall be extended for the period of such delay. In no event shall
this provision pertain to any monetary obligations set forth in this Lease
including payment of Rent from Tenant to Landlord.
SECTION 12.13 NON-MERGER. Notwithstanding the fact that fee title
to the land and to the leasehold estate hereby created may, at any time, be
held by the same party, there shall be no merger of the leasehold estate hereby
created unless the owner thereof executes and files for record in the
appropriate real property records a document expressly providing for the merger
of such estates.
SECTION 12.14 ENTIRETIES. This Lease constitutes the entire
agreement of the parties hereto with respect to its subject matter, and all
prior agreements with respect thereto are merged herein. Any
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agreements entered into between Landlord and Tenant of even date herewith are
not, however, merged herein.
SECTION 12.15 RECORDATION. Landlord and Tenant will, at the
request of the other, promptly execute an instrument in recordable form
constituting a short form of this Lease, which shall be filed for record in the
appropriate real property records, or at the request of either party this Lease
shall be so filed for record.
SECTION 12.16 SUCCESSORS AND ASSIGNS. This Lease shall constitute
a real right and covenant running with the Premises, and shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. Whenever a reference is made herein to either party, such
reference shall include the party's successors and assigns.
SECTION 12.17 LANDLORD'S JOINDER. Landlord agrees to join with
Tenant in the execution of such applications for permits and licenses from any
Governmental Authority as may be reasonably necessary or appropriate to
effectuate the intents and purposes of this Lease, provided that Landlord shall
not incur or become liable for any obligation as a result thereof.
SECTION 12.18 NO THIRD PARTIES BENEFITTED. Except as herein
specifically and expressly otherwise provided with regard to notices and
opportunities to cure defaults and certain enumerated rights granted to
Permitted Mortgagees, the terms and provisions of this Lease are for the sole
benefit of Landlord and Tenant, and no third party whatsoever, is intended to
benefit herefrom.
SECTION 12.19 SURVIVAL. Any terms and provisions of this Lease
pertaining to rights, duties, or liabilities extending beyond the expiration or
termination of this Lease shall survive the end of the Term.
SECTION 12.20 PERPETUITIES. To the extent that the rule against
perpetuities is applicable thereto, but not otherwise, the rights granted to
Tenant in Article 13 hereof shall expire upon the earlier to occur of (a) the
date set forth for expiration of such rights in said Article 13 or (b) the date
which is 21 years after the date of death of the last to die of the following
parties: the last grandchild to survive of the presently living grandchildren
of Xxxxxx Xxxx, former President of the United States of America.
SECTION 12.21 TRANSFER OF LANDLORD'S INTEREST. Subject to the
terms of the Landlord's Financing, Landlord may freely transfer and/or mortgage
its interest in the Premises and under this Lease from time to time and at any
time, provided that any such transfer or mortgage is expressly made subject to
the terms, provisions, and conditions of this Lease, including specifically but
without limitation Tenant's rights under Article 13, and the transferee or
mortgagee agrees to be bound by the provisions hereof (in the case of a
mortgagee, such agreement being contingent upon the mortgagee actually
succeeding to the Landlord's interest in the Premises and hereunder by virtue
of a foreclosure or conveyance in lieu thereof).
SECTION 12.22 TENANT'S RIGHT TO ASSIGN. Tenant may assign its
rights hereunder or sublease all or a portion of the Premises with Landlord's
prior written approval, which approval will not be unreasonably withheld.
provided that Tenant shall remain liable for all liabilities and obligations
arising under this Lease. An assignment by Tenant to an affiliate under common
control as that of the herein
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Tenant shall be deemed by Landlord to be approved. Tenant acknowledges that
Landlord's approval may require the consent and/or joinder of Landlord's
Financing Lender. Tenant further acknowledges that Landlord's approval may
require the consent and/or joinder of The Seminole Tribe.
SECTION 12.23 PAST DUE AMOUNTS. All amounts required to be paid
by Tenant or Landlord under the terms and provisions of this Lease shall bear
interest at the Default Rate from the date due until paid.
SECTION 12.24 INDEPENDENT COUNSEL. Landlord and Tenant declare
that each has had independent legal advice by counsel of their own selection;
that each fully understands the facts and has been fully informed of all legal
rights or liabilities; that after such advice or knowledge, each believes the
Lease to be fair, just, reasonable and that each signs the Lease freely and
voluntarily.
SECTION 12.25 COOPERATION WITH LANDLORD'S LENDER. Tenant agrees
to cooperate with any Lender utilized by Landlord relative to financing
associated with this Lease and Improvements located upon the Premises, should
such Lender request reasonable modifications to this Lease provided such
modifications do not adversely diminish or otherwise modify the obligations of
Landlord under this Lease or affect the rights of the Tenant granted under this
Lease or create additional liability or obligations for Tenant beyond Tenant's
current liability and obligations under this Lease.
SECTION 12.26 RECEIPT AND ACKNOWLEDGMENT OF SEMINOLE LEASE.
Tenant acknowledges receipt of a copy of the Seminole Lease together with a
copy of Supplemental Agreement No. 1 and Supplement Agreement No. 2 thereto.
Tenant agrees that it will not violate the terms of the Seminole Lease, as
supplemented by Supplemental Agreement No. 1 and Supplement Agreement No. 2,
nor take any action which will, or could result, in a default thereunder
thereby jeopardizing the Landlord's lease rights therein; subject to the terms
and provisions of Section 6.1 and 10.3 of this Lease.
SECTION 12.27 FULFILLMENT OF LESSEE'S OBLIGATION UNDER THE
SEMINOLE LEASE. Landlord agrees that it has not and will not violate any of
the terms of the Seminole Lease, as supplemented, nor take any action which
will, or could result, in a default thereunder thereby jeopardizing the
Landlord's lease rights therein.
SECTION 12.28 CERTAIN RIGHTS OF TENANT REGARDING THE SEMINOLE
LEASE. The following shall be applicable with respect to the Seminole Lease:
(a) Landlord shall deliver to Tenant copies of all notices (i)
received by Landlord from any of the other parties under the Seminole Lease
immediately upon receipt thereof, and (ii) sent by Landlord to any of the other
parties under the Seminole Lease simultaneously with the sending of each such
notice.
(b) Simultaneously with the forwarding of each payment of rent to
the Lessor under the Seminole Lease, Landlord shall deliver to Tenant a copy of
each check covering each rental payment together with a copy of the
correspondence forwarding each such check. Promptly after receipt by Landlord
of each canceled check, Landlord shall forward a copy of same to Tenant.
(c) If Tenant has not received a copy of any check required to be
delivered to Tenant under the terms of clause (b) immediately above on or
before the date the applicable rental payment is required
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to be made by Landlord under the Seminole Lease, Tenant may (but shall have no
obligation) notify Landlord of the failure to receive such copy of such check.
Should Landlord fail to forward same to Tenant within two (2) business days of
receipt of notice from Tenant, Tenant shall be entitled to, but shall not have
the obligation to, pay to Lessor under the Seminole Lease the then applicable
rental payment. The amount of each such payment made by Tenant to Lessor under
the Seminole Lease shall be offset against the immediately next occurring
payments of Base Rent due under this Lease until credit for the entire amount
of each such payment made by Tenant under the Seminole Lease has been credited
to the payment of Base Rent under this Lease.
(d) In addition to the right to make such direct payments to the
Lessor under the Seminole Lease as set forth hereinabove, Tenant shall have the
right, but not the obligation, to cure all defaults of Landlord under the
Seminole Lease. All amounts expended by Tenant in connection with the curing
of each such default shall be credited to the payment of Base Rent in the
manner required in clause (c) immediately above.
(e) Landlord shall not modify, amend, cancel or terminate the
Seminole Lease without the prior written consent of Tenant, which consent shall
not be unreasonably withheld.
ARTICLE 13
OPTION TO PURCHASE LEASEHOLD
SECTION 13.1 RIGHT OF FIRST REFUSAL.
(a) If Landlord shall receive a bona fide offer to purchase the
Premises (as herein defined as the Landlord's leasehold interest in the
Premises and Land) during the Term, then any contract which may be entered into
between Landlord and a third party purchaser shall provide that the sale shall
be subject to Tenant's right of refusal set forth in this Section 13.1. If
Landlord shall receive such offer or execute such contract, Landlord shall send
to Tenant a true and complete copy of the executed contract and the complete
terms of the offer with Landlord's certification that it will accept the offer,
and Tenant shall have the option, to be exercised within thirty (30) days after
receipt thereof, to make a contract with Landlord on the same terms and
conditions set forth in such third party contract or offer. If Tenant, after
receipt of the third party contract or the terms of the offer acceptable to
Landlord, shall fail to exercise its option within the thirty (30) day period,
Landlord shall have the right to conclude the proposed sale on the same terms
as in the offer or contract originally forwarded to Tenant, provided the sale
shall close within the timeframe set forth in the third party contract plus
thirty (30) days. If the sale shall not close within said time frame plus
thirty (30) days, Landlord shall repeat the procedure specified in this Section
13.1 before it can conclude any sale of the Premises.
(b) Notwithstanding Tenant's failure to exercise its option, any
sale of the Premises shall be subject to this Lease and Tenant's option to
purchase the Premises and Tenant's right of first refusal shall remain in force
and be binding on any party to the same extent as if said subsequent owner were
Landlord herein, and said subsequent owner shall be required to do all of the
things required of Landlord in this Lease prior to any such sale of the
Premises.
(c) If any third party contract or offer for the Premises shall
include property other than the Premises, Tenant's right of first refusal
shall, at its election, be either applicable to the entire property
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covered by such contract or offer, or applicable to the Premises only at a
purchase price which shall be that part of the price offered by the third
party, which the value of the Premises shall bear to the value of all the
property included in such third party contract or offer.
(d) Tenant's right to purchase shall not be extinguished, canceled
or waived by Tenant failing to exercise its option as to any offer, contract or
conveyance which is between Landlord and a related party, a nominee and his
principal, or a sole shareholder and his corporation, or a corporation and its
subsidiary or affiliate.
SECTION 13.2 OPTION.
(a) For and in consideration of the execution of this Lease and the
sum of Ten Dollars ($10.00), Tenant shall have the option to purchase the
Landlord's interest in the Seminole Lease at any time during the Term
(including any extensions thereof), without premium or penalty for the Purchase
Price determined pursuant to this Section 13.2 (the "PURCHASE PRICE"), provided
Landlord is given sixty (60) days written notice of Tenant's election to
purchase and provided further that Tenant is not then in default under the
terms of this Lease.
(1) The purchase price of the Premises shall be
determined by an appraisal conducted using an M.A.I. appraiser (or an appraiser
having the same class of certification of an M.A.I. appraiser by the successor
certification organization in the case that the designation of M.A.I. appraiser
is changed or succeeded). The appraisal shall not take into consideration the
Base Rent, terms or conditions of this Lease. The appraised value shall be
reduced by the cost of any leasehold improvements made to the Premises by the
Tenant.
(2) The Tenant, at its sole expense, shall obtain, and
submit to the Landlord, an appraisal of the fair market value of the Premises
(the "FIRST APPRAISAL") from an M.A.I. appraiser (the "FIRST APPRAISER"), and
if Landlord shall accept such appraisal, then such First Appraisal shall be the
Purchase Price.
(3) If Landlord does not accept such First Appraisal,
Landlord, at the Landlord's sole expense shall obtain, and submit to the
Tenant, a second appraisal of the fair market value of the Premises (the
"SECOND APPRAISAL") from an M.A.I. appraiser (the "SECOND APPRAISER"). If the
numerical difference between the value of the First Appraisal and the value of
the Second Appraisal is less than ten percent (10%) of the appraisal with the
lower value, then the two appraisal values shall be averaged and that averaged
value shall be the Purchase Price.
(4) If the numerical difference between the value of the
First Appraisal and the value of the Second Appraisal is equal to or greater
than ten percent (10%) of the appraisal with the lower value, then the First
Appraiser and the Second Appraiser shall choose a third M.A.I. appraiser (the
"THIRD APPRAISER") who shall appraise the fair market value of the Premises
(the "THIRD APPRAISAL"), and the three appraisal values shall be averaged and
that averaged value shall be the Purchase Price. If the Third Appraisal is
requested, the Landlord and Tenant shall each pay one-half (1/2) of the cost of
such Third Appraisal.
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(b) In the event that the option herein granted shall be exercised
as aforesaid, Landlord agrees to sell and Tenant agrees to purchase the
Premises for the Purchase Price aforesaid and upon the following terms and
conditions:
(1) The Premises is to be conveyed at the time full
payment of the Purchase Price is made by Tenant to Landlord (hereinafter called
"CLOSING DATE"), but in no event later than three (3) months from the date of
receipt of Tenant's notice of election, by general warranty deed conveying to
Tenant or Tenant's nominee, title to the same, subject only to (i) the matters
set forth in EXHIBIT B and other matters previously approved in writing by
Tenant, (ii) any matters created by Tenant, and (iii) taxes and other
Impositions assessed against the Premises or any part thereof but not yet due
and payable, which charges, assessments, taxes and other Impositions shall be
paid by Tenant; but free and clear of any mortgages, liens or encumbrances upon
Landlord's interest.
(2) For such assignment and conveyance Tenant is to pay
the Purchase Price in cash or by certified or bank check upon the delivery of
such deed.
(3) Full possession of the Premises is to be delivered to
Tenant at the time of delivery of the deed.
(4) The cost and expense of preparing the deed and any
other documents relating to said conveyance and recording the same including
title insurance premiums, Landlord's reasonable attorney's fees and real estate
transfer taxes (including documentary stamps and sur-tax, if applicable), if
any, shall be paid by Tenant.
(5) The Rent provided for in this Lease shall be
apportioned as of the Closing Date.
(6) The recording of a deed after the expiration of the
Term of this Lease, conveying the Premises to a third party and reciting that
the option in this Article has expired and has not been exercised shall be, as
to all persons other than Tenant, conclusive evidence of such expiration and
nonexercise.
(c) Notwithstanding anything to the contrary contained herein
Landlord may convey the Premises subject to the option herein granted;
provided, however, that the Landlord has complied with the provisions of this
Section 13.2 and the party to whom the Landlord conveys the Premises assumes in
writing all of Landlord's obligations under this Lease. No such conveyance
shall relieve the Landlord for liability for breach of representations as set
forth in Article 10 of this Lease.
(d) It is further understood and agreed that in the event Tenant
gives written notice to Landlord sixty (60) days before the Expiration Date or
the end of any Renewal Term, of Tenant's intention to purchase the Premises,
the Term of this Lease then shall be extended until the payment to Landlord of
the Purchase Price but in no event later than three (3) months therefrom. The
Purchase Price shall be paid no later than the expiration of such three (3)
month extension. In the event Tenant does not consummate the purchase pursuant
to the terms and conditions of this Section 13.2, then the Tenant's options as
set forth in this Section13.2 shall terminate.
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(e) Landlord will, at the request of Tenant, promptly execute an
instrument in recordable form, reflecting Tenant's option to purchase the
Premises, and may be part of the recorded instrument referred to in Section
12.15, pursuant to this Article 13, which shall be filed for record in the
appropriate real property records.
(f) In the event that such option shall not be exercised as
aforesaid, Tenant shall, within ten (10) days upon demand of Landlord, deliver
to Landlord an instrument in form suitable for recording and executed and
acknowledged by Tenant whereby the option and all rights hereunder shall be
released and discharged.
SECTION 13.3 SPECIFIC PERFORMANCE. It is expressly agreed that
the remedy at law for breach of any of the obligations set forth in this
Article 13 is inadequate in view of the complexities and uncertainties in
measuring the actual damages that would be sustained by reason of the failure
of Landlord or Tenant to comply fully with each of such obligations.
Accordingly, each of the aforesaid obligations shall be, and is hereby
expressly made, enforceable by specific performance.
ARTICLE 14
ARBITRATION
SECTION 14.1 ARBITRATION PROVISIONS. EXCEPT AS TO TENANT'S
EXERCISE OF REASONABLE JUDGMENT PURSUANT TO SECTION 8.5 OF THIS LEASE, ANY
CONTROVERSY OR CLAIM BETWEEN THE PARTES HERETO RELATING TO THIS LEASE,
INCLUDING, WITHOUT LIMITATION, ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION. SUCH ARBITRATION SHALL TAKE PLACE IN THE
COUNTY AND STATE WHERE THE PREMISES ARE LOCATED. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. EXCEPT AS TO TENANT'S
EXERCISE OF REASONABLE JUDGMENT PURSUANT TO SECTION 8.5 OF THIS LEASE, ANY
PARTY TO THIS LEASE MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS
LEASE APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY (90) DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL
SIXTY (60) DAYS. ALL STATUTES OF LIMITATIONS THAT WOULD OTHERWISE BE
APPLICABLE SHALL) APPLY TO ANY DISPUTES ASSERTED IN ANY ARBITRATION PROCEEDING
HEREOF. THE ARBITRATORS SHALL HAVE THE RIGHT, TO AWARD COUNSEL FEES TO ANY
PARTY, TO GRANT TEMPORARY OR PERMANENT INJUNCTIVE RELIEF, AND TO REQUIRE
SPECIFIC PERFORMANCE. THE PARTIES SPECIFICALLY AGREE THAT THE ARBITRATORS MAY
NOT AWARD AND THE PARTIES WAIVE ANY RIGHT TO ANY EXEMPLARY OR PUNITIVE DAMAGES.
THE DECISION OR AWARD IN THE ARBITRATION SHALL BE FINAL, CONCLUSIVE AND BINDING
UPON EACH OF THE PARTIES AND JUDGMENT ON
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SUCH AWARD OR DECISION MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
THE PARTIES BY EXECUTION OF THE LEASE AND INITIALING THIS PROVISION REPRESENT
THAT THEY WERE GIVEN FULL AND COMPLETE OPPORTUNITY TO REVIEW SAME WITH COUNSEL
OF THEIR CHOOSING AND THEY HAVE READ AND SIGNED SAME AS THEIR FREE AND
VOLUNTARY ACT AND DEED.
ARTICLE 15
SUBORDINATION AND ATTORNMENT
SECTION 15.1 SUBORDINATION. This Lease and all rights of Tenant
hereunder are and shall be subject and subordinate in all respects to all
mortgages encumbering Landlord's interest in the Premises as permitted in the
Lease (the "SUPERIOR MORTGAGE"). The provisions of this Section 15.1 shall be
self-operative and no further instrument of subordination shall be required.
If any Requesting Party shall seek confirmation of such subordination, Tenant
shall promptly execute and deliver, at its own cost and expense, an instrument,
in recordable form, to evidence such subordination; if Tenant fails to execute,
acknowledge or deliver any such instrument within ten (10) days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute, acknowledge
and deliver any such instruments for and on behalf of Tenant. However, nothing
herein withstanding to the contrary, the foregoing provisions shall not be
effective until the Landlord shall have delivered to Tenant a Non-Disturbance
Agreement, in the form required under Section 10.1, executed by each Landlord's
Financing Lender and each mortgagee and holder of a Superior Mortgage.
SECTION 15.2 ATTORNMENT. If, at any time prior to the termination
of this Lease, the holder of a Superior Mortgage, or its successors or assigns,
(herein collectively called the "SUPERIOR MORTGAGEE") who acquire the interest
of Landlord under this Lease through foreclosure action or a transfer-in-lieu
thereof, whereby the Superior Mortgagee succeeds to the rights of Landlord
under this Lease through possession or foreclosure or delivery of a new lease
or deed or otherwise, Tenant agrees, at the election and upon request of any
such party (hereinafter called the "SUCCESSOR LANDLORD") to attorn fully and
completely from time to time, and to recognize any such Successor Landlord as
Tenant's landlord under this Lease upon the executory terms of this Lease.
Provided Tenant is not in default under the terms of this Lease, such Successor
Landlord shall agree in writing to accept Tenant's attornment. The foregoing
provisions of this Section 15.2 shall inure to the benefit of any such
Successor Landlord and any successor or assign of Tenant. Tenant, upon demand
of any such Successor Landlord, agrees to execute any instruments to evidence
and confirm the foregoing provisions of this Section 15.2, reasonably
satisfactory to any such Successor Landlord, acknowledging such attornment and
setting forth the terms and conditions of its tenancy.
SECTION 15.3 RADON GAS DISCLOSURE. Radon Gas: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed
to it over time. Levels of radon that exceed federal and state guidelines have
been found in the buildings in Florida. Additional information regarding radon
and radon testing may be obtained from your county public health unit.
EXECUTED as of the date and year first above written.
"LANDLORD"
XXXXX DEVELOPMENT CO.,
A FLORIDA GENERAL PARTNERSHIP
BY: /s/ XXXXX X. XXXXXXX
------------------------------------------
NAME: XXXXX X. XXXXXXX, TRUSTEE OF
THE X. XXXXXXX ENTERPRISES TRUST
U/AD/ AUGUST 3, 1993, GENERAL PARTNER
"TENANT"
XXXXX FORD, INC.
A FLORIDA CORPORATION
BY: /s/ XXXXX X. XXXXXXX
--------------------------------------
NAME: XXXXX X. XXXXXXX
TITLE: PRESIDENT
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LEASE AGREEMENT
EXHIBIT A
DESCRIPTION OF LAND
SEE LEGAL DESCRIPTION ATTACHED HERETO.
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LEASE AGREEMENT
EXHIBIT B
EXCEPTIONS TO TITLE TO LAND
1. Easement in favor of Florida Power and Light Company recorded in
Official Records Book 8920, page 63, of the Public Records of Broward
County, Florida.
2. Right of Way Grant recorded in Official Records Book 20151, page 650,
of the Public Records of Broward County, Florida.
3. Terms and provisions contained in lease by and between The Seminole
Tribe of Florida as lessor and Xxxxx Ford Inc., a Florida corporation
as evidenced by Memorandum of Lease recorded in Official Records Book
8531, page 821, as assigned to Xxxxx Development Company by Assignment
dated March 15, 1979 and amended by Supplemental Agreement No. 2 dated
October 30, 1979 and as sub-leased to Xxxxx Ford, Inc. by instrument
to be recorded in the Public Records of Broward County, Florida.
