FORM OF
SONIC LEASE AGREEMENT
BY AND BETWEEN
MAR MAR REALTY LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
AND
--------------------------------
DATED
TABLE OF CONTENTS
Page #
1. Premises........................................................................................1
2. Condition of Premises...........................................................................1
3. Term............................................................................................1
(a) Initial Term...........................................................................1
(b) Renewal Term...........................................................................2
4. Rent............................................................................................2
(a) Base Rent..............................................................................2
(c) Payment of Base Rent...................................................................3
(d) Draft Withdrawal of Rent...............................................................3
(e) Late Charge; Interest..................................................................3
(f) Payment without Abatement..............................................................4
5. Holding Over....................................................................................4
6. Use of Leased Premises, Compliance With Laws....................................................4
(a) Permitted Use..........................................................................4
(b) Continuous Operations..................................................................4
(c) Laws...................................................................................4
7. Tenant's Covenant to Repair.....................................................................5
8. Landlord's Obligation...........................................................................5
9. Surrender.......................................................................................5
10. Alterations.....................................................................................5
(a) Prohibition............................................................................5
(b) Permitted Renovations..................................................................5
(c) Conditions.............................................................................6
(d) Additions, Expansions and Structural Alterations.......................................7
11. Utilities and Other Services....................................................................7
12. Performance by Landlord of Tenant's Obligations.................................................7
(a) Landlord's Self Help...................................................................7
(b) Landlord's Inspections.................................................................8
13. Entry...........................................................................................8
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14. Assignment and Subletting.......................................................................8
(a) Transfers Prohibited Without Consent...................................................8
(b) Change of Control Prohibited Without Consent...........................................9
(c) Adequate Assurances....................................................................9
(d) Subleases, Concessions and Licenses....................................................9
15. Taxes and Assessments...........................................................................9
16. Casualty.......................................................................................10
(a) Restoration and Repair................................................................10
(b) Escrow of Insurance Proceeds..........................................................10
(c) Uninsured Losses......................................................................11
17. Insurance......................................................................................11
(a) Insurance By Tenant...................................................................11
(i) Hazard Insurance.............................................................11
(ii) Liability Insurance..........................................................11
(iii) Worker's Compensation and Employer's Liability Insurance.....................11
(iv) Builder's Risk Insurance.....................................................11
(v) Other Insurance..............................................................12
(vi) Landlord as Additional Insured...............................................12
(vii) Insurance Escrows............................................................12
(b) Carriers and Features.................................................................12
(c) Failure to Procure Insurance..........................................................13
(d) Waiver of Subrogation.................................................................13
18. Environmental Matters..........................................................................13
(a) Tenant's Covenant.....................................................................13
(b) Clean Up..............................................................................13
(c) Indemnification.......................................................................13
19. Costs and Attorneys' Fees......................................................................14
20. Default; Remedies..............................................................................14
(a) Default...............................................................................14
(b) Remedies..............................................................................15
21. Eminent Domain.................................................................................18
(a) Complete Taking.......................................................................18
(b) Partial Taking........................................................................18
(c) Award.................................................................................18
(d) Notices; Assignments..................................................................18
22. Liability of Landlord..........................................................................19
23. Indemnification of Landlord....................................................................19
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24. Notice of Claim or Suit........................................................................20
25. Liens, Generally...............................................................................20
26. Mechanics Liens................................................................................20
27. Contest of Liens...............................................................................21
28. Notices of Commencement of Construction........................................................21
29. Limitation on Liability of Landlord............................................................21
30. Franchise and License Agreements...............................................................21
31. "Net" Lease....................................................................................21
32. Representations, Warranties and Special Covenants..............................................22
33. Notices........................................................................................22
34. No Waiver......................................................................................22
35. Quiet Enjoyment................................................................................22
36. Subordination. Non-Disturbance and Attornment..................................................23
37. Brokers........................................................................................23
38. Invalidity.....................................................................................23
39. Counterparts...................................................................................23
40. Memorandum of Lease............................................................................23
41. Cumulative.....................................................................................23
42. Governing Law..................................................................................24
43. Successors and Assigns, Relationship...........................................................24
44. Entire Agreement...............................................................................24
45. Survival.......................................................................................24
46. Estoppel Certificates..........................................................................24
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47. Time...........................................................................................24
48. Captions and Headings..........................................................................24
49. Waiver of Jury Trial...........................................................................24
50. Signage........................................................................................25
51. Guaranty.......................................................................................25
52. Pre-Existing Conditions........................................................................25
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EXHIBITS:
EXHIBIT A......................................................................................LEGAL DESCRIPTION
EXHIBIT B....................................................................................MEMORANDUM OF LEASE
EXHIBIT A TO MEMORANDUM OF LEASE..........................................LEGAL DESCRIPTION OF PREMISES
EXHIBIT C................................................................................INVENTORY OF PERSONALTY
EXHIBIT D ...........................................................................TENANT ESTOPPEL CERTIFICATE
EXHIBIT E......................................................REPRESENTATIONS, WARRANTIES AND SPECIAL COVENANTS
EXHIBIT E1...................................................................................MATERIAL AGREEMENTS
EXHIBIT F ........................................................................................LEASE GUARANTY
SCHEDULES:
SCHEDULE 14D............................................SUBLEASES, CONCESSIONS, AGREEMENTS OR LICENSE AGREEMENTS
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INDEX OF DEFINED TERMS
Accessibility Laws .........................................................................................6(c)
Affiliate .......................................................................................Exhibit E(l)(c)
Annual Financial Statements ....................................................................Exhibit E(10)(b)
Bank .......................................................................................................4(c)
Base Month ..............................................................................................4(b)(i)
Base Rent ..................................................................................................4(a)
Beneficiary ...........................................................................................Exhibit D
Business ........................................................................................Exhibit E(l)(a)
CERCLA ...................................................................................................1 8(a)
Certificate ...........................................................................................Exhibit D
Change of Control .........................................................................................14(b)
Code ...........................................................................................Exhibit E(14)(a)
Commencement Date ..........................................................................................3(a)
Company ........................................................................................Exhibit E(14)(c)
Cure Period ..........................................................................................20(a)(iii)
ERISA Affiliate .................................................................................Exhibit E(8)(e)
ERISA ...........................................................................................Exhibit E(8)(e)
Events of Default .........................................................................................20(a)
Five Year Adjustment Date ..............................................................................4(b)(ii)
Franchise ...........................................................................................20(a)(viii)
GAAP ...........................................................................................Exhibit E(10)(b)
Guarantor ....................................................................................................51
Guaranty .....................................................................................................51
Hazardous Material .......................................................................................1 8(a)
Improvements ..................................................................................................1
Initial Term ...............................................................................................3(a)
Inspection Report ........................................................................................1 2(b)
Intellectual Property ..............................................................................Exhibit E(4)
Land ..........................................................................................................1
Landlord ..............................................................................................Exhibit B
Lease .................................................................................................Exhibit B
Lease Term .................................................................................................3(b)
Leased Premises ..............................................................................Exhibit D Recitals
Liabilities ..............................................................................................1 6(c)
Major Casualty ............................................................................................16(a)
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Material Adverse Change ............................................................................Exhibit E(3)
Material Agreements ................................................................................Exhibit E(2)
Memorandum ............................................................................................Exhibit B
Minor Casualty ...........................................................................................1 6(a)
Net Worth .........................................................................................Exhibit E(13)
Notice of Commencement .......................................................................................28
Permitted Use ..............................................................................................6(a)
Person ..........................................................................................Exhibit E(l)(c)
Personalty ....................................................................................................1
Pre-Existing Conditions ......................................................................................52
Premises ......................................................................................................1
Price Index .............................................................................................4(b)(i)
Price Index for the Base Month ..........................................................................4(b)(i)
RCRA ...................................................................................................... 8(a)
Reasonable Attorney's Fees ......................................................................Exhibit F(9)(e)
REIT ...........................................................................................Exhibit E(14)(c)
Renewal Term(s) ............................................................................................3(b)
Rent .......................................................................................................4(c)
Rent Collection Account ....................................................................................4(c)
Tenant Benefit Plan .............................................................................Exhibit E(8)(e)
Tenant ................................................................................................Exhibit B
Term .......................................................................................................3(b)
Title IV Plan ...................................................................................Exhibit E(8)(e)
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made this ______ day of
__________________, 199__ by and between MAR MAR REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord") and
____________________________________________________, a ________________________
[corporation/partnership] ("Tenant").
In consideration of the mutual promises and agreements herein
contained, the parties agree as follows:
1. Premises. Landlord shall lease to Tenant, and Tenant shall lease
from Landlord, subject to the conditions hereinafter expressed: (a) the real
property located in County, more particularly described on Exhibit A hereto (the
"Land"), upon which exists certain improvements in the nature of an automobile
dealership, together with related paved parking and appurtenant improvements and
any replacements thereof (together the "Improvements"); and (b) certain
furniture, fixtures, equipment, furnishings and other personal property and any
replacements thereof used or utilized in connection with the ownership and
operation of the Improvements as more particularly described on Exhibit C hereto
(collectively the "Personalty"). As used herein, the Land, Improvements and
Personalty are collectively referred to as the "Premises".
2. Condition of Premises. Tenant acknowledges and agrees that the
Premises are and shall be leased by Landlord to Tenant in its present "as-is"
condition, subject to all liens, encumbrances and restrictions affecting the
Premises. Landlord makes absolutely no representations or warranties whatsoever
with respect to the Premises or the condition thereof, either to its fitness for
use, condition, purpose or otherwise as to the quality or material or
workmanship therein, latent or patent, it being agreed that all such risks are
to be borne by Tenant.. Tenant acknowledges that Landlord has not investigated
and does not warrant or represent to Tenant that the Premises are fit for the
purposes intended by Tenant or for any other purposes whatsoever. Tenant
acknowledges and agrees that the Premises are to be leased to Tenant in their
existing condition, i.e., "as-is", as of the Commencement Date and at all times
thereafter. Tenant acknowledges that Tenant shall be solely responsible for any
and all actions, repairs, permits, approvals and costs required for the
rehabilitation, renovation, use, occupancy and operation of the Premises in
accordance with applicable governmental requirements, including, without
limitation, all governmental charges and fees, if any, which may be due or
payable to applicable authorities. By leasing the Premises, Tenant warrants and
represents to Landlord that Tenant has examined and approved all things
concerning the Premises which Tenant deems material to Tenant's leasing and use
of the Premises. Tenant further acknowledges and agrees that: (a) neither
Landlord nor any agent of Landlord has made any representation or warranty,
express or implied, concerning the Premises or which have induced Tenant to
execute this Lease except as contained in this Lease; and (b) any other
representations and warranties are expressly disclaimed by Landlord.
3. Term.
(a) Initial Term. This Lease shall be for a ____________
(______) year period beginning ________________, 199__ (the "Commencement
Date"), and ending at midnight
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________________, 20___, unless modified or earlier terminated pursuant to the
terms hereof (the "Initial Term"). Landlord may terminate this Lease by written
notice to Tenant given on or before if the closing of Landlord's purchase of the
Premises does not occur by such date. Landlord agrees to use commercially
reasonable efforts to consummate Landlord's purchase of the Premises on or
before the Commencement Date, and Tenant agrees to use commercially reasonable
efforts to consummate Tenant's purchase of the business operating on the
Premises, if applicable. If Tenant fails to purchase the business operating on
the premises, Landlord shall not be obligated to purchase the Premises.
Likewise, if Landlord fails to purchase the Premises, Tenant shall not be
obligated to purchase the business operating on the premises.
(b) Renewal Term. Provided Tenant is not in default hereunder,
at the expiration of the Initial Term, Tenant shall have the option to renew
this Lease for two (2) additional five (5) year periods (the "Renewal Term(s)").
Each Renewal Term shall automatically commence as of the end of the Initial Term
or the initial Renewal Term, as applicable, unless Tenant gives Landlord written
notice of termination not less than one hundred eighty (180) days prior to the
expiration of the Initial Term or the expiration of the initial Renewal Term, as
applicable. As used herein, the Term, the Initial Term and the Renewal Term(s),
if exercised, shall be referred to hereinafter collectively as the "Term" or
"Lease Term".
4. Rent.
(a) Base Rent. "Base Rent" for the first year of the Initial
Term shall be ___________________________________________________________ AND
NO/100 DOLLARS ($_________) per year.
(b) Adjustment of Base Rent.
(i) Definitions: For the purpose of calculating the
cost of living adjustments, the following definitions shall apply: (A)
the term "Base Month" shall mean the calendar month which is five years
prior to the applicable Five year Adjustment Date; (B) the term "Price
Index" shall mean the "Consumer Price Index-United States City Average
All Urban Consumers" published by the Bureau of Labor Statistics of the
United States Department of Labor (1982-84 = 100), or, in the event
such index is discontinued or no longer readily available, any renamed
local index covering the metropolitan area in which the Premises are
located or any other successor or substitute index appropriately
adjusted; and (C) the term "Price Index for the Base Month" shall mean
the Price Index for the Base Month.
(ii) Effective as of: (A) the fifth (5th) anniversary
of the Commencement Date; and (B) each five year anniversary date
thereafter throughout the Term (each, a "Five Year Adjustment Date"),
there shall be made a cost of living adjustment of the annual Base Rent
payable hereunder. Each five year adjustment shall be calculated by
multiplying the Base Rent for the prior lease year by the percentage
difference between the Price Index for the month preceding the
applicable Five Year Adjustment Date and the Price Index for the Base
Month; provided that in no event shall the cost of living adjustment on
any Five Year Adjustment Date be a downward adjustment or be an upward
adjustment of less than one
2
percent (1%) per annum or greater than three percent (3%) per annum. If
the Price Index for the month preceding the applicable Five Year
Adjustment Date is not available as of any Five Year Adjustment Date,
then the cost of living adjustment shall be calculated using the most
current available Price Index. In no event shall any adjustment made
pursuant to this Paragraph 4, or any decrease in the Price Index, ever
result in a decrease in the annual Base Rent payable hereunder to below
the then current Base Rent.
(c) Payment of Base Rent. Tenant shall pay one-twelfth of the
Base Rent monthly, in advance, on the first (1st) day of each calendar month
during the Lease Term without notice, demand or setoff. The Base Rent for any
partial month shall be paid in advance and prorated daily from such date to the
first (1st) day of the next calendar month. The first (1st) payment of Base Rent
shall be due and payable on or before the execution of this Lease. All Rent
shall be made by direct deposit by Tenant of immediately available funds into a
checking account established with a bank, savings bank or other depository
institution designated by Landlord ("Bank") and controlled exclusively by
Landlord entitled "Rent Collection Account" (or such other name as may be
designated by Landlord) ("Rent Collection Account"). Landlord (or, at Landlord's
option, Landlord's agent, if any), or such officers or other agents as may be
designated by Landlord, shall be the sole signatory on the Rent Collection
Account. All interest accrued in the Rent Collection Account shall belong to
Landlord and shall not be credited to Tenant. No funds in the Rent Collection
Account shall be subject to withdrawal by or for the benefit of Tenant. "Rent"
shall mean and include all Base Rent, additional rent and other sums due
hereunder.
(d) Draft Withdrawal of Rent. Instead of requiring Tenant to
pay Rent in the manner set forth in Paragraph 4(c) above, Landlord may require
Tenant, within thirty (30) days after notice to Tenant, to execute and deliver
to Landlord any documents or authorizations required by Landlord to give effect
to an automated debiting system, whereby any or all payments of Base Rent by
Tenant shall be debited monthly from such account as Tenant shall designate from
time to time, and such amounts shall be credited to Landlord's bank account as
Landlord shall designate from time to time. Tenant shall maintain sufficient
funds in Tenant's account to cover all such payments. Tenant shall promptly pay
all service fees and other charges connected therewith, including, without
limitation, any charges resulting from insufficient funds in Tenant's bank
account or any charges imposed on Landlord. Tenant shall remain responsible to
Landlord for all payments of Rent, even if Tenant's bank account is
insufficiently debited in any given month. Such insufficient amounts shall be
immediately due and payable to Landlord without notice or demand.
(e) Late Charge; Interest. If Tenant fails to make any payment
of Rent or any other sums or amounts to be paid by Tenant hereunder on or before
the date such payment is due and payable and such amount remains unpaid for a
period of five (5) days thereafter, or such longer time as required by the law
of the state in which the premises is located, Tenant shall pay to Landlord an
administrative late charge of five percent (5%) of the amount of such payment or
such lesser amount then allowable under the laws of the State in which the
Premises is located. In addition if such amount remains past due for more than
thirty (30) days following its due date, such past due payment shall bear
interest at the lesser of twelve percent (12%) or the maximum interest rate then
allowable under the laws of the State in which the Premises is located from the
date such payment became due to the date of payment thereof by Tenant. Such late
charge and interest shall constitute additional rent and shall be due and
payable with the next installment of Rent due hereunder.
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(f) Payment without Abatement. No abatement, diminution or
reduction of Rent shall be allowed to Tenant or any person claiming under
Tenant, under any circumstances or for any reason whatsoever.
5. Holding Over. If Tenant or any other person or party shall remain in
possession of the Premises or any part thereof following the expiration of the
Term or earlier termination of this Lease without an agreement in writing
between Landlord and Tenant with respect thereto, the person or party remaining
in possession shall be deemed to be a tenant at sufferance, and during any such
holdover, the Rent payable under this Lease by such tenant at sufferance shall
be one hundred fifty percent (150%) of the rate or rates in effect immediately
prior to the expiration of the Term or earlier termination of this Lease. In no
event, however, shall such holding over be deemed or construed to be or
constitute a renewal or extension of this Lease.
6. Use of Leased Premises, Compliance With Laws.
(a) Permitted Use. Tenant shall use the Premises for an
automobile dealership and related uses ("Permitted Use") and for no other
purpose. Tenant's use of the Premises shall, subject to the right of diligent
contest, comply with all laws, ordinances, orders, regulations or zoning
classifications of any lawful governmental authority, agency or other public or
private regulatory authority (including insurance underwriters or rating
bureaus) having jurisdiction over the Premises. Tenant, shall make or cause to
be made all alterations, additions and improvements requiring expenditures as
are required to be made under any applicable laws, ordinances, rules or
regulations, now or hereinafter adopted or enacted provided all such
alterations, additions and improvements are made in accordance with Paragraph 10
hereof. Tenant shall not perform any act or follow any practice relating to the
Premises which shall constitute a nuisance and shall conduct any Permitted Use
on the Premises in an efficient and professional manner. Subject to the terms
and provisions of this Lease, Tenant shall have the right to control the
automobile dealership business being conducted at the Premises.
(b) Continuous Operations. During the Term, Tenant shall keep
the Premises and the Business open to the public and continuously operating for
the Permitted Use during normal business hours standard for the industry of
which the Business is a part or, in the event that the Tenant does not
continuously operate on the Premises, shall conduct periodic tests, which shall
occur at least monthly, of mechanical and other systems located on the Premises
and take all steps necessary to comply with its maintenance and repair
obligations hereunder.
(c) Laws. Notwithstanding the generality of the foregoing,
Tenant shall, at its sole expense, maintain the Premises in full compliance with
all applicable federal, state or municipal laws, ordinances, rules and
regulations currently in existence or hereafter enacted or rendered governing
accessibility for the disabled or handicapped, including, but not limited to,
any applicable provisions of The Architectural Barriers Act of 1968, The
Rehabilitation Act of 1973, The Fair Housing Act of 1988, The Americans With
Disabilities Act, the accessibility code(s), if any, of the State in which the
Premises are located, and all regulations and guidelines promulgated under any
or all of the foregoing, as the same may be amended from time to time
(collectively the "Accessibility Laws"). In the event that Tenant disputes the
applicability of an Accessibility Law
4
to the Premises, Tenant may take reasonable steps to contest the applicability
of such Accessibility Laws, so long as Tenant provides Landlord with reasonable
assurances that its interest in the Premises is not in any way jeopardized by
such contest.
7. Tenant's Covenant to Repair. Tenant shall, at all times during the
Term and at its sole cost and expense, put, keep, replace and maintain the
Premises (including, without limitation, the Improvements and the Personalty) in
good repair and in good, safe and substantial order and condition, shall make
all repairs and replacements thereto, both inside and outside, structural and
non-structural, ordinary and extraordinary, howsoever the necessity or
desirability for repairs and replacements may occur, and whether or not
necessitated by wear, tear, obsolescence or defects, latent or otherwise, and
shall use all reasonable precautions to prevent waste, damage or injury. Tenant
shall also at its own cost and expense install, maintain and replace all
landscaping, signs, sidewalks, roadways, driveways and parking areas within the
Premises in good repair and in good, safe and substantial order and condition
and free from dirt, standing water, rubbish and other obstructions or obstacles.
8. Landlord's Obligation. Landlord shall not be required to make any
alterations, reconstructions, replacements, changes, additions, improvements or
repairs of any kind or nature whatsoever to the Premises or any portion thereof
(including, without limitation, any portion of the Improvements or any
Personalty) at any time during the Term.
9. Surrender. Tenant shall on the last day of the Lease Term, or upon
the sooner termination of this Lease, peaceably and quietly surrender the
Premises to Landlord, in as good condition as they were when received, ordinary
wear and tear excepted, and free of all liens and encumbrances.
10. Alterations.
(a) Prohibition. Except as hereinafter expressly provided in
this Paragraph 10, no portion of the Premises shall be demolished, removed or
altered by Tenant in any manner whatsoever without the prior written consent and
approval of Landlord, which may not be unreasonably withheld or delayed.
Notwithstanding the foregoing, however, Tenant shall be entitled and obligated
to undertake all alterations to the Premises required by any applicable law or
ordinance including, without limitation, any alterations required by any
Accessibility Laws, and, in such event, Tenant shall comply with the provisions
of Paragraph 10(c) below. The foregoing notwithstanding, if the existing
Premises is "grandfathered" such that alterations which would normally be
required to comply with law are not required with respect to the Premises,
Tenant shall not be entitled to alter the otherwise "grandfathered" structure
without Landlord's prior written consent, which shall not be unreasonably
withheld or delayed.
(b) Permitted Renovations. Landlord acknowledges that various
minor, non-structural alterations may be undertaken by Tenant from time to time
without the approval of Landlord. Tenant shall be entitled to perform all such
work on or about the Improvements; provided, however, that the conditions in
Paragraph 10(c) below shall be met.
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(c) Conditions. The following conditions shall be met by
Tenant for any alterations to the Premises permitted under Paragraphs 10(a) and
10(b):
(i) Before the commencement of any such work, plans
and specifications therefor or a detailed itemization including costs
thereof shall be furnished to Landlord for its review and approval.
Landlord's approval of Tenant's plans shall create no responsibility or
liability on the part of Landlord for their completeness, design,
sufficiency or compliance with all laws, rates, and regulations of
governmental agencies or authorities.
(ii) If the cost of such work will exceed FIFTY
THOUSAND AND NO/100 DOLLARS ($50,000.00), then Tenant shall deposit in
Landlord's name, in an escrow account at the Bank or other financial
institution designated by Landlord, the anticipated cost of such work,
as certified by Tenant's contractor, who shall be approved by Landlord,
or, in the alternative, shall provide Landlord with other reasonable
assurances that such work will be performed and paid for in a lien-free
fashion, such as demonstrating to landlord the strength of Tenant's
financial condition or by demonstrating to landlord that a lender has
committed to loan Tenant construction funds for the proposed
alterations.. Such proceeds shall be disbursed periodically by Landlord
upon certification of Tenant's contractor that such amounts are the
amounts paid or payable for such work. Tenant shall, at the time of
establishment of such escrow account and from time to time thereafter
until said work shall have been completed and paid for, furnish
Landlord with adequate evidence that at all times the undisbursed
portion of the escrowed funds, together with any funds made available
by Tenant, is sufficient to pay for the work in its entirety. Tenant
shall obtain, and make available to Landlord, receipted bills and, upon
completion of the work, full and final waivers of lien.
(iii) Before the commencement of any such work,
Tenant shall obtain any required approvals from all governmental
departments or authorities having or claiming jurisdiction of or over
the Premises, and from any public utility companies having an interest
therein. In any such work, Tenant shall comply with all applicable
laws, ordinances, requirements, orders, directions, rules and
regulations of the federal, state, county and municipal governments and
of all other governmental authorities having or claiming jurisdiction
of or over the Premises and of all their respective departments,
bureaus and offices, and with the requirements and regulations, if any,
of such public utilities, of the insurance underwriting board or
insurance inspection bureau having or claiming jurisdiction, or any
other body exercising similar functions, and of all insurance companies
then writing policies covering the Premises or any part thereof.
(iv) Tenant represents and warrants to Landlord that
all such construction work will be performed in a good and workmanlike
manner and in accordance with the terms, provisions and conditions of
this Lease and all governmental requirements.
(v) Landlord shall have the right to inspect any such
construction work at all times during normal working hours and to
maintain at the Premises for that purpose (at its own expense) such
inspector(s) as it may deem necessary so long as such inspections do
not interfere with Tenant's work (but Landlord shall not thereby assume
any
6
responsibility for the proper performance of the work in accordance
with the terms of this Lease, nor any liability arising from the
improper performance thereof).
(vi) All such work shall be performed at Tenant's
cost and expense and free of any expense to Landlord and free of any
liens on Landlord's fee simple interest on or Tenant's leasehold
interest in the Premises.
(vii) Upon substantial completion of any such work
Tenant shall procure a certificate of occupancy, if applicable, from
the appropriate governmental authorities verifying the substantial
completion thereof.
(viii) Tenant shall, indemnify and save and hold
Landlord harmless from and against and reimburse Landlord for any and
all loss, damage, cost and expense (including, without limitation,
reasonable attorneys' fees) incurred by or asserted against Landlord
which are occasioned by or result, directly or indirectly, from any
construction or renovation activities conducted upon the Premises;
whether or not the same is caused by or the fault of Tenant or any
contractor, subcontractor, laborer, supplier, materialman or any other
third party.
(d) Additions, Expansions and Structural Alterations.
Except as expressly permitted in Paragraph 10(a) or 10(b) above, nothing in this
Lease shall be deemed to authorize Tenant to construct and erect any additions
to or expansions of the Improvements, or perform any alterations of a structural
nature whatsoever; it being understood that Tenant may do so only with the prior
written consent and approval of Landlord, which consent and approval may not be
unreasonably withheld or delayed by Landlord.
11. Utilities and Other Services. Tenant shall be liable for and shall
pay directly all charges, fees and amounts (together with any applicable
penalties, late charges, taxes or assessments thereon) when due for water, gas,
electricity, air conditioning, heat, septic, sewer, refuse collection, telephone
and any other utility charges or similar items in connection with the use or
occupancy of the Premises. Landlord shall not be responsible or liable in any
way whatsoever for the quality, quantity, impairment, interruption, stoppage, or
other interference with any utility service, including, without limitation,
water, air conditioning, heat, gas, electric current for light and power,
telephone, or any other utility service provided to or serving the Premises or
any damage or injury caused thereby. No such interruption, termination or
cessation of utility services shall relieve Tenant of its duties and obligations
pursuant to this Lease, including, without limitation, its obligation to pay all
Rent as and when the same shall be due hereunder.
12. Performance by Landlord of Tenant's Obligations.
(a) Landlord's Self Help. If Tenant shall default in the
performance of any term, provision, covenant or condition on its part to be
performed hereunder and such default shall continue beyond any notice or cure
period recited herein, Landlord may, after notice to Tenant and a reasonable
time to perform after such notice (or without notice if, in Landlord's
reasonable opinion, an emergency exists) perform the same for the account and at
the expense of Tenant. If, at any time and by reason of such default, Landlord
is compelled to pay, or reasonably elects to pay,
7
any sum of money or do any reasonable act which will require the payment of any
sum of money, or is compelled to incur any expense in the enforcement of its
rights hereunder or otherwise, such sum or sums, together with interest thereon
at the highest rate allowed under the laws of the State where the Premises is
located, shall be deemed additional rent hereunder and shall be repaid to
Landlord by Tenant promptly when billed therefor, and Landlord shall have all
the same rights and remedies in respect thereof as Landlord has in respect of
the rents herein reserved.
(b) Landlord's Inspections. Landlord, its agents or
representatives shall have the right, but not the obligation, to enter upon the
Premises to perform annual inspections of the Premises to confirm that Tenant is
performing all of Tenant's obligations under this Lease, including but not
limited to, Tenant's obligations under Paragraph 7 and that Tenant has not
violated any of its covenants under this Lease, including, but not limited to
the covenants under Paragraph 12. Upon completion of such inspection, Landlord
may deliver to Tenant a written report ("Inspection Report") outlining certain
defaults, if any, in Tenant's obligations hereunder. Within ten (10) days of
Tenant's receipt of such Inspection Report, Tenant shall either: (i) object to
Landlord in writing as to any portion of the Inspection Report, specifically
describing such objection; or (ii) begin to perform any and all required work
outlined in the Inspection Report which Tenant has not objected to, and
diligently complete such work. If Tenant objects to any item in the Inspection
Report, then within ten (10) days of Landlord's receipt of Tenant's objection
notice, both Landlord and Tenant shall select a third party licensed engineer
mutually satisfactory to Landlord and Tenant or if a single engineer cannot be
agreed upon, then Landlord and Tenant shall each, at their own cost, select a
licensed engineer and the two chosen engineers shall select a third licensed
engineer, the cost of the third engineer being paid equally by Landlord and
Tenant. The engineer(s) shall determine, by majority vote, if the work outlined
in the Inspection Report should be performed by Tenant. Such determination shall
be final and binding on Landlord and Tenant.
13. Entry. Landlord, any mortgagee for the Premises and their agents or
representatives may enter the Premises at reasonable times during normal
business hours upon twenty-four (24) hours prior written notice (except during
emergencies, in which case Landlord shall endeavor to give such notice as
Landlord deems reasonable under the circumstances or as provided for inspections
under Paragraphs 10 and 12) for the purpose of inspecting the Premises, or
performing any work which Landlord elects to undertake by reason of Tenant's
default under the terms of this Lease. Landlord shall use reasonable efforts not
to disturb Tenant as a result of any such entry by Landlord, its agents or
representatives.
14. Assignment and Subletting.
(a) Transfers Prohibited Without Consent. Tenant shall not,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, in each instance, sell, assign or otherwise
transfer this Lease, or Tenant's interest in the Premises, in whole or in part,
or any rights or interest which Tenant may have under this Lease, or sublet the
Premises, or any part thereof, or grant or permit any lien or encumbrance on or
security interest in Tenant's interest in this Lease. When given, the consent of
Landlord to an assignment, transfer, subletting or encumbrance shall in no event
be construed to relieve Tenant or such assignee or subtenant from the obligation
of obtaining the express consent in writing of Landlord to any further
assignment, transfer, subletting or encumbrance. Any assignment, transfer,
sublease or encumbrance in violation
8
of this Article shall be voidable at Landlord's option. Notwithstanding the
foregoing, Tenant may assign or sublet the Premises to any affiliate of
Guarantor (hereinafter defined) without first obtaining the consent of Landlord,
so long as the Guaranty contemplated by Paragraph S l hereof shall remain in
full force and effect.
(b) Change of Control Prohibited Without Consent. Tenant shall
not, without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, in each instance, engage in or permit to occur
a Change of Control. "Change of Control" shall be deemed an assignment
hereunder. Change of Control of Tenant shall mean: (i) the issuance or sale by
Tenant or the sale by any shareholder, stockholder, member, partner or owner of
equity interests of Tenant of a controlling interest in Tenant (which shall mean
the effective voting control of Tenant); (ii) the sale, conveyance or other
transfer of all or substantially all of the assets of Tenant (whether by
operation of law or otherwise); or (iii) any transaction, or series of
transactions, pursuant to which Tenant is merged with or consolidated into
another entity and Tenant is not the surviving entity.
(c) Adequate Assurances. Without limiting any of the foregoing
provisions of this Paragraph 14, if, pursuant to the U.S. Bankruptcy Code, as
the same may be amended from time to time, Tenant is permitted to assign or
otherwise transfer its rights and obligations under this Lease in disregard of
the restrictions contained in this Paragraph 14, the assignee agrees to provide
adequate assurance to Landlord: (i) of the continued use of the Premises solely
in accordance with the Permitted Use thereof and in compliance with all other
terms of this Lease; (ii) of the continuous operation of the business in the
Premises in strict accordance with the requirements of Paragraph 6 hereof; and
(iii) of such other matters as Landlord may reasonably require at the time of
such assumption or assignment Such assignee shall expressly assume this Lease by
an agreement in recordable form.
(d) Subleases, Concessions and Licenses. Tenant may continue
any subleases, concession agreements or license agreements at the Premises which
were in effect, with Landlord's written approval, immediately prior to the
Commencement Date and as identified on Schedule 14(d) hereto. Further, Landlord
shall not unreasonably withhold its consent to any future sublease, concession
agreement or license agreement proposed to be entered into in replacement of any
such currently existing sublease, concession agreement or license agreement.
15. Taxes and Assessments. Throughout the Term, Tenant shall bear, pay
and discharge all taxes, assessments and other governmental impositions and
charges of every kind and nature whatsoever, extraordinary as well as ordinary,
and each and every installment thereof which shall or may during the Term hereof
be assessed or imposed upon, or arise in connection with, the use, occupancy or
possession of the Premises or any part thereof, including, without limitation,
ad valorem real and personal property taxes, and all taxes assessed or imposed
in lieu of or in addition to any of the foregoing by virtue of all present or
future laws, ordinances, rules or regulations of federal, state, county and
municipal governments and of all other governmental authorities which relate to
the use, occupancy or possession of the Premises, but specifically excluding any
income or capital gains taxes. Unless specifically waived by Landlord, Tenant
shall maintain a separate trust account at the Bank for Landlord's benefit in
which it shall make monthly deposits of one-twelfth of the estimated yearly
requirement for taxes and assessments together with such additional deposits
9
as may be reasonably required by Landlord to ensure that sufficient funds will
be available to pay all such taxes, assessments and impositions as and when they
become due. Tenant shall provide Landlord as of the first day of each calendar
month during the Term, a detailed accounting from the Bank, together with
Tenant's estimate of the applicable tax and assessment requirements (including
due dates) delivered to Landlord on or before the fifteenth (15th) day of the
applicable calendar month. Upon request of Landlord, Tenant shall promptly
furnish to Landlord satisfactory evidence of the payment of any tax, assessment,
imposition or charge required to be paid by Tenant pursuant to the foregoing.
16. Casualty.
(a) Restoration and Repair. In the event that during the
Initial Term the Improvements and/or Personalty shall be destroyed or damaged in
whole or in part by fire or any cause whatsoever and less than eighty percent
(80%) of the value of the Improvements and/or Personalty are damaged or
destroyed or in the event that less than sixty percent (60%) of the value of the
Improvements and/or Personalty are damaged or destroyed during any Renewal Term
(in either case, a "Minor Casualty"), Tenant shall give Landlord immediate
notice thereof and shall repair, reconstruct or replace the Improvements and/or
Personalty, or the portion thereof so destroyed or damaged (whichever is
reasonably required), at least to the extent of the value and character thereof
existing immediately prior to such occurrence. All work shall be started as soon
as practicable and completed at Tenant's sole cost and expense. Tenant shall,
however, immediately take such action as is necessary to assure that the
Premises (or any portion thereof) does not constitute a nuisance or otherwise
presents a health or safety hazard. Tenant shall continue to pay all Rent and
additional charges due hereunder without abatement. If during the Initial Term
greater than eighty percent (80%) of the value of the Improvements and/or
Personalty are damaged or destroyed, or if during any Renewal Term more than
sixty percent (60%) of the value of the Improvements and/or Personalty are
damaged or destroyed (a "Major Casualty"), then Tenant may, at its option, elect
to (i) terminate this Lease and assign all insurance proceeds for such damage
and destruction to Landlord; or (ii) treat the Major Casualty as if it were a
Minor Casualty and take all steps required for Minor Casualties herein.
Notwithstanding the foregoing, in the event that a period of two (2) years or
less remains on the Term of this Lease and the Tenant has not given Landlord
notice of its intent to renew the Lease for a Renewal Term, Landlord may elect
to terminate the Lease upon the occurrence of a Major Casualty, and Tenant shall
assign all insurance proceeds for such damage or destruction to Landlord.
(b) Escrow of Insurance Proceeds. In the event of a casualty
resulting in an insurance loss payment for the Improvements and/or Personalty in
an amount greater than ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00),
the proceeds of all insurance policies maintained by Tenant plus the amount of
any deductible shall be deposited in Landlord's and Tenant's name in an escrow
account at the Bank or another financial institution designated by Landlord, and
shall be used by Tenant (subject to subparagraph (a) above) for the repair,
reconstruction or restoration of the Improvements and/or Personalty. Such
proceeds shall be disbursed periodically by Escrow Agent upon certification of
the architect or engineer having supervision of the work that such amounts are
the amounts paid or payable for the repair, reconstruction or restoration.
Tenant shall, at the time of establishment of such escrow account and from time
to time thereafter until said work shall have been completed and paid for,
furnish
10
Landlord with adequate evidence that at all times the undisbursed portion of the
escrowed funds, together with any funds made available by Tenant, is sufficient
to pay for the repair, reconstruction or restoration in its entirety. If a
casualty results in a loss payment for the Improvements and/or Personalty in an
amount equal to or less than the amount stated above, then the proceeds shall be
paid to Tenant, and shall be applied by Tenant (subject to subparagraph (a)
above) toward the repair, reconstruction and restoration of the Premises in its
entirety. Tenant shall obtain, and make available to Landlord, receipted bills
and, upon completion of the work, full and final waivers of lien.
(c) Uninsured Losses. Nothing contained herein shall relieve
Tenant of its obligations under this Paragraph 16 even if the destruction or
damage is not covered, either in whole or in part, by insurance.
17. Insurance.
(a) Insurance By Tenant. Throughout the Term, Tenant shall, at
its sole cost and expense, maintain in full force and effect the following types
and amounts of insurance coverage:
(i) Hazard Insurance. Tenant shall keep the
Improvements and Personalty, including all permitted alterations,
changes, additions and replacements thereof and thereto, insured
against loss or damage caused by: (A) fire, and other hazards and
perils generally included under extended coverage, including flood and
earthquake; (B) sprinkler leakage; (C) vandalism and malicious
mischief; (D) boiler and machinery; and (E) other perils commonly
covered by "All Risk" insurance, all in an amount which reasonably
assures there will be sufficient proceeds to replace the Improvements
and Personalty in the event of a loss against which such insurance is
issued but in no event less than 100% of the full replacement value
thereof (exclusive of foundations). All insurance required hereunder,
and all other insurance maintained by Tenant on the Improvements and
Personalty in excess of or in addition to that required hereunder,
shall be carried in favor of Landlord and Tenant, as their respective
interests may appear.
(ii) Liability Insurance. Tenant shall provide and
keep in full force and effect a policy of broad form comprehensive
general public liability and property damage insurance providing
coverage against liability for personal injury, death and property
damage having limits of not less than Five Million Dollars ($5,000,000)
per occurrence, and Five Million Dollars ($5,000,000) aggregate.
(iii) Worker's Compensation and Employer's Liability
Insurance. Tenant shall provide and keep in full force and effect
workers' compensation insurance, in a form prescribed by the laws of
the State in which the Premises is located, and employers' liability
insurance with limits of not less than Five Million Dollars
($5,000,000).
(iv) Builder's Risk Insurance. Tenant shall, prior to
the commencement of and during the construction of any construction,
restoration, renovation or alteration to the Premises, provide and keep
in full force and effect builders' risk insurance in accordance with
the requirements of this Paragraph 17.
11
(v) Other Insurance. In addition, Tenant shall, at
Landlord's request, provide and keep in full force and effect such
other insurance for such risks and in such amounts as may from time to
time be commonly insured against in the case of business operations
similar to those contemplated by this Lease to be conducted by Tenant
on the Premises.
(vi) Landlord as Additional Insured. Any and all
insurance maintained by Tenant as required by this Lease, or in excess
of or in addition to that required hereunder, shall name Landlord and
any mortgagee requested by Landlord as an additional insured(s), and
shall use its best efforts to provide a waiver of subrogation from its
insurance carrier.
(vii) Insurance Escrows. Tenant shall maintain a
separate trust account at the Bank for Landlord's benefit in which it
shall make monthly deposits of one-twelfth of the estimated yearly
premium for those insurance coverages for which Landlord notifies
Tenant it must escrow, together with such additional deposits as may be
reasonably required by Landlord to ensure that sufficient funds will be
available to pay all such premiums as and when they become due. Tenant
shall provide Landlord as of the first day of each calendar month
during the Term, a detailed accounting from the Bank, together with
Tenant's estimate of the applicable insurance premiums (including due
dates) delivered to Landlord on or before the fifteenth (15th) day of
the applicable calendar month. Upon request of Landlord, Tenant shall
promptly furnish to Landlord satisfactory evidence of the payment of
any insurance premium required to be paid by Tenant pursuant to the
foregoing.
(b) Carriers and Features. All insurance policies required to be
carried by Tenant as provided in this Paragraph 17 shall be issued by insurance
companies approved by Landlord and authorized and licensed to do business in the
State in which the Premises is located with a Best's Insurance Rating of not
less than "A-" or a Best's Financial Category of not less than "VIII" or as
otherwise required by Landlord, with reasonable deductibles, taking into account
Tenant's and Guarantor's financial condition and the risk being insured.
Landlord shall have the right from time to time to require Tenant to increase
the amount and/or type of coverage to be maintained under this Lease. All such
policies shall be for periods of not less than one year and Tenant shall renew
the same at least thirty (30) days prior to the expiration thereof. All such
policies shall require not less than thirty (30) days written notice to Landlord
prior to any cancellation thereof or any change reducing coverage thereunder.
Notwithstanding the foregoing, Tenant may elect to self-insure or obtain blanket
insurance for each of the foregoing required types of insurance, so long as it
obtains the prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed.
Tenant shall pay the premiums for all insurance policies which Tenant
is obligated to carry under this Article and, at least twenty (20) days prior to
the date any such insurance must be in effect, deliver to Landlord a copy of the
policy or policies, or a certificate or certificates thereof, along with
evidence that the premiums therefor have been paid for at least the next ensuing
quarter-annual period.
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(c) Failure to Procure Insurance. If Tenant fails to procure
insurance required under this Article or fails to maintain the same in full
force and effect continuously during the Term, Landlord shall be entitled to
procure the same and Tenant shall immediately reimburse Landlord for such
premium expense as additional rent.
(d) Waiver of Subrogation. If any property owned by Tenant and
located in the Premises shall be stolen, damaged or destroyed by an insured
peril, Landlord shall not have any liability to Tenant, nor to any insurer of
Tenant, for or in respect of such theft, damage or destruction, and Tenant shall
use its best efforts to require all policies of insurance carried by it on its
property in the Premises to contain or be endorsed with a provision by which the
insurer designated therein shall waive its right of subrogation against
Landlord.
18. Environmental Matters.
(a) Tenant's Covenant. Throughout the Term of this Lease,
Tenant covenants that it shall not cause, permit or allow any chemical
substances, asbestos, asbestos containing materials, oil, gasoline, other
petroleum products or by-products, formaldehyde, polychlorinated biphenals
(PCB's), lead or lead dust, fuel storage tanks, natural or synthetic gas
products or any toxic, carcinogenic, radioactive, dangerous or hazardous
material, substance, chemical, waste, contamination or pollutant the generation,
use, maintenance, storage or removal of which is regulated, prohibited or
penalized under the Resources Conservation Recovery Act ("RCRA"), 42 U.S.C.
Section 6901, et seq; the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601, et seq; and any other federal,
state or local laws pertaining to so-called "hazardous substances" or "hazardous
materials" (collectively, the "Hazardous Materials") to be placed, stored,
dumped, dispensed, released, discharged, deposited, used, transported, located
or generated on any portion of the Premises; provided, however, that
commercially reasonable quantities of such substances may be used or stored by
Tenant on the Premises on the condition that such quantities and the use thereof
are permitted by and in compliance with, or are exempt from applicable
governmental regulations.
(b) Clean Up. Subject to the provisions of Paragraph 52
hereof, Tenant shall immediately clean up any Hazardous Materials found on or
within any portion of the Premises, and shall remediate the Premises, to comply
with any and all laws, ordinances, rules or regulations regarding Hazardous
Materials and clean-up thereof, and to pay for all clean-up and remediation
costs at no cost to Landlord.
(c) Indemnification. Subject to the provisions of Paragraph 52
hereof, Tenant shall indemnify, release and hold Landlord its successors,
assigns, officers, directors, shareholders and employees, harmless from and
against all Liabilities, suffered by, incurred by or assessed against such
parties, their agents or other representatives, whether incurred as a result of
legal action taken by any governmental entity or agency, taken by any private
claimant, or taken by Landlord, before or after the expiration of the Term as a
result of the presence, disturbance, discharge, release, removal or clean-up of
any Hazardous Materials upon or under, on or off site, associated with,
generated on or flowing or originating from the Premises. The term "Liabilities"
as used in this Paragraph 18 is hereby defined as any and all liabilities,
expenses, demands, damages, punitive or exemplary damages, consequential
damages, costs, cleanup costs, response costs, losses, causes of
13
action, claims for relief, attorneys and other legal fees, other professional
fees, penalties, fines, assessments and charges.
19. Costs and Attorneys' Fees. If either party shall bring an action to
recover any sum due hereunder, or for any breach hereunder, and shall obtain a
judgment or decree in its favor, the court may award to such prevailing party
its reasonable costs and reasonable attorneys' fees, specifically including
reasonable attorneys' fees incurred in connection with any appeals (whether or
not taxable or assessable as such by law). Landlord shall also be entitled to
recover from Tenant Landlord's reasonable attorneys' fees and costs incurred in
any bankruptcy action filed by or against Tenant, including, without limitation,
those incurred in seeking relief from the automatic stay, in dealing with the
assumption or rejection of this Lease, in any adversary proceeding, and in the
preparation and filing of any proof of claim.
20. Default; Remedies.
(a) Default. Upon the occurrence of any one or more of the
following events (the "Events of Default"), Landlord shall have the right to
exercise any rights or remedies available in this Lease, at law or in equity.
Events of Default shall be:
(i) Tenant's failure to pay when due any regularly
scheduled payment of Rent, or any other sum of money payable hereunder
(whether as additional rent or otherwise) and such failure is not cured
within ten (10) days after receipt of written notice thereof from
Landlord, (but Landlord shall be obligated to tender notice of such
default only once in any given twelve (12) month period, and thereafter
it shall be an Event of Default any time a required payment is not
received within ten (10) days of the date such sum was due if Landlord
has given notice of default relating to Tenant's failure to pay any
regularly scheduled payment of Rent in the Preceding twelve (12) month
period);
(ii) Tenant's failure to pay when due any other
payment of Rent, or any other sum of money payable hereunder (whether
as additional rent or otherwise) and such failure is not cured within
thirty (30) days after receipt of written notice thereof from Landlord;
(iii) Tenant's failure to perform any other of the
terms, covenants or conditions contained in this Lease if not remedied
within thirty (30) days after receipt of written notice thereof, or, if
such default cannot reasonably be remedied within such period, Tenant
does not within thirty (30) days after written notice thereof commence
such act or acts as shall be necessary to remedy the default and shall
not thereafter diligently complete such act or acts within a reasonable
time, provided, however, in no event shall such "Cure Period" extend
beyond one hundred twenty (120) days after written notice thereof;
(iv) if Tenant becomes bankrupt or insolvent, or
files any debtor proceedings, or files pursuant to any statute a
petition in bankruptcy or insolvency or for reorganization, or files a
petition for the appointment of a receiver or trustee for all or
substantially all of its assets, and such petition or appointment shall
not have been set aside within sixty (60) days from the date of such
petition or appointment, or if any of the
14
foregoing are filed against Tenant, or if Tenant makes an assignment
for the benefit of creditors or shall admit in writing its inability to
pay its debts generally as they become due, or if Tenant's interest in
this Lease is attached, seized or made subject to any other judicial
seizure and such seizure or attachment is not discharged within sixty
(60) days;
(v) Tenant's failure to provide insurance coverage
(or allows such coverage to be canceled or lapse) pursuant to its
obligation hereunder;
(vi) if Tenant is liquidated or dissolved, or begins
proceedings toward such liquidation or dissolution, or, in any manner,
permits the sale or divestiture of substantially all of its assets;
(vii) if a Change of Control occurs or the estate or
interest of Tenant in the Premises or any part thereof is voluntarily
or involuntarily transferred, assigned, conveyed, levied upon or
attached in any proceeding, unless Tenant is contesting such lien or
attachment in good faith in accordance with Paragraph 27 hereof;
(viii) if there has been a notice of default under or
a termination or relinquishment of the franchise or license pursuant to
which Tenant or an Affiliate conducts business on or from the Premises
("Franchise"), provided that such event shall not constitute an Event
of Default if (i) no other Event of Default enumerated in this
Paragraph 20 shall occur and be continuing, and (ii) at a date no later
than the period allowed to Tenant pursuant to the Franchise to cure
such default, termination or relinquishment, Tenant or an Affiliate has
cured such default thereunder so that there is no default, termination
or relinquishment of the Franchise, or Tenant has entered into a
written new or amended Franchise for operation of motor vehicle retail
or motor vehicle related businesses at the Premises with a substitute
franchisor or licensor acceptable to Landlord on terms and conditions
acceptable to Landlord, which acceptance shall not be unreasonably
withheld or delayed;
(ix) Tenant's failure to provide Landlord immediate
notice of Tenant's receipt of notice of (A) a default or potential
default by Tenant under the Franchise, or (B) the Franchiser's intent
to terminate, suspend or not renew the Franchise;
(x) if Tenant or any of its Affiliates defaults under
any other lease with Landlord or an Affiliate of Landlord, unless such
default is premised upon a default, suspension or termination of any
Franchise agreement.
(b) Remedies. If any of the Events of Default hereinabove specified
shall occur and be continuing, Landlord shall have and may exercise any one or
more of the following rights and remedies:
(i) Landlord may, by written notice thereof to
Tenant, terminate this Lease and, peaceably or pursuant to appropriate
legal proceedings, re-enter, retake and resume possession of the
Premises for Landlord's own account and, for Tenant's breach of and
default under this Lease, recover immediately from Tenant any and all
Rent and other
15
sums and damages due or in existence at the time of such termination,
including, without limitation: (A) all Rent and other sums, charges,
payments, costs and expenses agreed and/or required to be paid by
Tenant to Landlord hereunder; (B) all reasonable costs and expenses of
Landlord in connection with the recovery of possession of the Premises,
including reasonable attorneys' fees and court costs; and (C) all costs
and expenses of Landlord in connection with any reletting or attempted
reletting of the Premises or any part or parts thereof, including,
without limitation, brokerage fees, attorneys' fees and the cost of any
alterations or repairs which may be reasonably required to so relet the
Premises, or any part or parts thereof.
(ii) Landlord may, by written notice thereof to
Tenant, terminate Tenant's option to renew this Lease for any or all of
the Renewal Terms.
(iii) Landlord may, pursuant to any prior notice
required by law, and without terminating this Lease, peaceably or
pursuant to appropriate legal proceedings, re-enter, retake and resume
possession of the Premises for the account of Tenant, make such
alterations of and repairs to the Premises as may be reasonably
necessary in order to relet the same or any part or parts thereof and
relet or attempt to relet the Premises or any part or parts thereof for
such term or terms (which may be for a term or terms extending beyond
the Term), at such Rent and upon such other terms and provisions as
Landlord, in its reasonable discretion may deem advisable. In the event
that Landlord retakes and resumes possession of the Premises, it shall
use reasonable efforts to mitigate any damages it suffered by virtue of
Tenant's default. Upon any such reletting, all rents received by
Landlord from such reletting shall be applied: (A) first, to the
payment of all costs and expenses of recovering possession of the
Premises; (B) second, to the payment of any costs and expenses of such
reletting, including brokerage fees, attorneys' fees and the cost of
any alterations and repairs reasonably required for such reletting; (C)
third, to the payment of any indebtedness, other than Rent, due
hereunder from Tenant to Landlord, and to satisfy any liens encumbering
Tenant's leasehold interest; (D) fourth, to the payment of all Rent and
other sums due and unpaid hereunder; and (E) fifth, the residue, if
any, shall be held by Landlord and applied in payment of future Rent as
the same may become due and payable hereunder. If the rents received
from such reletting during any period shall be less than that required
to be paid during that period by Tenant hereunder, then Tenant shall
promptly pay any such deficiency to Landlord and failing the prompt
payment thereof by Tenant to Landlord, Landlord shall immediately be
entitled to institute legal proceedings for the recovery and collection
of the same. Such deficiency shall be calculated and paid at the time
each payment of Rent shall otherwise become due under this Lease, or,
at the option of Landlord, immediately. Landlord shall, in addition, be
immediately entitled to ▇▇▇ for and otherwise recover from Tenant any
other damages occasioned by or resulting from any abandonment of the
Premises or other breach of or default under this Lease other than a
default in the payment of Rent. No such re-entry, retaking or
resumption of possession of the Premises by Landlord for the account of
Tenant shall be construed as an election on the part of Landlord to
terminate this Lease unless a written notice of such intention shall be
given to Tenant or unless the termination of this Lease be decreed by a
court of competent jurisdiction. Notwithstanding any such re-entry and
reletting or attempted reletting of the Premises or any part or parts
thereof for the account of Tenant without termination, Landlord may at
any time thereafter, upon written
16
notice to Tenant, elect to terminate this Lease or pursue any other
remedy available to Landlord for Tenant's previous breach of or default
under this Lease.
(iv) Landlord may, without re-entering, retaking or
resuming possession of the Premises, ▇▇▇ for all Rent and all other
sums, charges, payments, costs and expenses due from Tenant to Landlord
hereunder either: (A) as they become due under this Lease, taking into
account that Tenant's right and option to pay the Rent hereunder on a
monthly basis in any particular Lease Year is conditioned upon the
absence of a default on Tenant's part in the performance of its
obligations under this Lease; or (B) at Landlord's option, accelerate
the maturity and due date of the whole or any part of the Rent for the
entire then-remaining unexpired balance of the Term (reduced to its
present value, applying an interest rate of _________ percent (____%),
as well as all other sums, charges, payments, costs and expenses
required to be paid by Tenant to Landlord hereunder, including, without
limitation, damages for breach or default of Tenant's obligations
hereunder in existence at the time of such acceleration, such that all
sums due and payable under this Lease shall, following such
acceleration, be treated as being and, in fact, be due and payable in
advance as of the date of such acceleration. Landlord may then proceed
to recover and collect all such unpaid Rent and other sums so sued for
from Tenant by distress, levy, execution or otherwise.
(v) Landlord may require Tenant to immediately
transfer to Landlord all amounts held by Tenant in the trust account
established pursuant to Paragraph 15 above and, thereafter, to deposit
on the first day of each month together with and in addition to the
regular installment of Rent, an amount equal to one-twelfth (1/12) of
the yearly taxes and assessments as estimated by Landlord to be
sufficient to enable Landlord to pay, at least thirty (30) days before
they become delinquent, all taxes, assessments, and other similar
charges and insurance premiums against the Premises or any part
thereof. Such added payments shall not be, nor be deemed to be, trust
funds, but may be commingled with the general funds of Landlord, and no
interest shall be payable with respect thereto. Upon demand of
Landlord, Tenant shall deliver to Landlord such additional moneys as
are necessary to make up any deficiencies in the amounts necessary to
enable Landlord to pay such taxes, assessments and similar charges and
insurance premiums.
In addition to the remedies hereinabove specified and enumerated,
Landlord shall have and may exercise the right to invoke any other remedies
allowed at law or in equity as if the remedies of re-entry, unlawful detainer
proceedings and other remedies were not herein provided. Accordingly, the
mention in this Lease of any particular remedy shall not preclude Landlord from
having or exercising any other remedy at law or in equity. Nothing herein
contained shall be construed as precluding Landlord from having or exercising
such lawful remedies as may be and become necessary in order to preserve
Landlord's right or the interest of Landlord in the Premises and in this Lease,
even before the expiration of any notice periods provided for in this Lease, if
under the particular circumstances then existing the allowance of such notice
periods will prejudice or will endanger the rights and estate of Landlord in
this Lease and in the Premises.
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21. Eminent Domain.
(a) Complete Taking. If the whole of the Premises shall be
taken for any public or quasi-public use under any statute or by right of
eminent domain, or by private purchase in lieu thereof, then this Lease shall
automatically terminate as of the date that title shall be taken.
(b) Partial Taking. If any part of the Premises shall be so
taken, such that the Premises may still be used for its intended purposes, this
Lease shall not terminate or be terminated and Tenant shall restore the
remaining portion of the Premises to the extent necessary to render it
reasonably suitable for the purposes for which it was leased and make all
repairs to any building damaged by such taking to the extent necessary to
constitute such building a complete architectural unit. If after such partial
taking, Landlord and Tenant shall determine in their reasonable discretion that
the Premises cannot be used for their intended purposes, then the term of this
Lease shall end on the effective date of such taking. If after such partial
taking, this Lease shall not so terminate, then the rent to be paid by Landlord
after such taking shall be equitably adjusted as Landlord and Tenant shall then
agree. Any disagreement between Landlord and Tenant regarding the foregoing
matters shall be determined by arbitration in accordance with the Commercial
Rules of the American Arbitration Association.
(c) Award. All awards and other compensation made to Tenant in
any taking by eminent domain or recovery for inverse condemnation, either
permanent or temporary, of all or any part of the Premises or any easement or
any appurtenance thereto, including severance and consequential damages and
change in grade of any street, are hereby assigned to Landlord, and Tenant
hereby irrevocably appoints Landlord as its attorney-in-fact, coupled with an
interest, and authorizes, directs and empowers such attorney, at the option of
said attorney, on behalf of Tenant, its successors and assigns, to adjust or
compromise the claim for any such award and alone to collect and receive the
proceeds thereof, to give proper receipts and acquittances therefor and, after
deducting any expenses of collection and subject to the conditions and
limitations set forth below, to hold such proceeds without any allowance of
interest and make the same available for restoration or rebuilding the
improvements which are part of the Premises. Such proceeds shall be paid to and
held and disbursed by an escrow agent in the manner and under the conditions
provided in paragraph 12 above. If the proceeds are made available by Landlord
to reimburse Tenant for the cost of restoration or rebuilding, any surplus which
may remain out of any award after payment of such cost of restoration or
rebuilding shall be the sole property of Landlord.
(d) Notices; Assignments. Each of Landlord and Tenant further
covenants and agrees to give the other immediate notice of the actual or
threatened commencement of any proceedings under eminent domain and to deliver
to the other copies of any and all papers served in connection with any such
proceedings. Tenant shall make, execute and deliver to Landlord, at any time or
times, upon request, free, clear and discharged of any encumbrance of any kind
whatsoever, any and all further assignments and/or other instruments deemed
necessary by Landlord for the purpose of validly and sufficiently assigning all
such awards and other compensation heretofore or hereafter made to Landlord
(including the assignment of any award from the United States government at any
time after the allowance of the claim therefor, the ascertainment of the amount
thereof and the issuance of the warrant for payment thereof).
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22. Liability of Landlord. Landlord shall not be liable to Tenant, its
employees, agents, contractors, business invitees, licensees, customers,
clients, family members or guests for any damage, injury, loss, compensation or
claim, including, but not limited to, claims for the interruption of or loss to
Tenant's business, based on, arising out of or resulting from any cause
whatsoever, except in the event of its clear failure to comply with its
obligations hereunder, including, but not limited to: (a) repairs to any portion
of the Premises; (b) interruption in Tenant's use of the Premises; (c) any
accident or damage resulting from the use or operation (by Landlord, Tenant or
any other person or persons) of any equipment within the Premises, including
without limitation, heating, cooling, electrical or plumbing equipment or
apparatus; (d) the termination of this Lease by reason of the condemnation or
destruction of the Premises in accordance with the provisions of this Lease; (e)
any fire, robbery, theft, mysterious disappearance or other casualty; (f) the
actions of any other person or persons; and (g) any leakage or seepage in or
from any part or portion of the Premises, whether from water, rain or other
precipitation that may leak into, or flow from, any part of the Premises, or
from drains, pipes or plumbing fixtures in the Improvements. Any goods, property
or personal effects stored or placed by Tenant or its employees in or about the
Premises shall be at the sole risk of Tenant.
23. Indemnification of Landlord. In addition to any other
indemnification obligations in this Lease, Tenant shall defend, indemnify and
save and hold Landlord harmless from and against any and all liabilities,
obligations, losses, damages, injunctions, suits, actions, fines, penalties,
claims, demands, costs and expenses of every kind or nature, including
reasonable attorneys' fees and expenses and court costs and actual or
consequential damages, incurred by, imposed upon or asserted against Landlord,
its officers, trustees, employees, shareholders, agents or Affiliates, arising
directly or indirectly from or out of: (a) any breach, violation or
nonperformance by Tenant or any person claiming under Tenant, or the employees,
agents, contractors, invitees or visitors of Tenant of any of the terms,
provisions, representations, warranties, covenants or conditions of this Lease
on Tenant's part to be performed or any law, ordinance or governmental
requirement of any kind; (b) any use, condition, operation or occupancy of the
Premises during the Term hereof; (c) any acts, omissions or negligence of
Tenant, in, on, or about the Premises during the Term hereof; (d) any accident,
injury, death or damage to the person, property or business of Tenant, its
employees, agents, contractors, invitees, visitors or any other person which
shall happen at, in or upon the Premises, however occurring during the Term
hereof; (e) any matter or thing growing out of the condition, occupation,
maintenance, alteration, repair, use or operation by any person of the Premises,
or any part thereof, or the operation of the business contemplated by this Lease
to be conducted thereon, thereat, therein, or therefrom which occurs during the
Term hereof; (f) any failure of Tenant to comply with any laws, ordinances,
requirements, orders, directions, rules or regulations of any governmental
authority, including, without limitation, the Accessibility Laws; (g) any
contamination of the Premises, or the ground waters thereof, arising on or after
the date Tenant takes possession of the Premises and occasioned by the use,
transportation, storage, spillage or discharge thereon, therein or therefrom of
any toxic or hazardous chemicals, compounds, materials or substances or any
violation of the covenants of Paragraph 18 above; (h) any discharge of toxic or
hazardous sewage or waste materials from the Premises into any septic facility
or sanitary sewer system serving the Premises arising on or after the date
Tenant takes possession of the Premises; (i) any brokers or agents fees and
commissions incurred during or with respect to the Term hereof; or
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(j) any other act or omission of Tenant, its employees, agents, invitees,
customers, licensees or contractors which occurs during the Term hereof.
Tenant's indemnity obligations under this Paragraph 23 and elsewhere in
this Lease arising prior to the termination or assignment of this Lease shall
survive any such termination or assignment.
24. Notice of Claim or Suit. Tenant shall promptly notify Landlord of
any claim, action, proceeding or suit instituted or threatened against Tenant or
Landlord which relates to the Premises of which Tenant receives notice or of
which Tenant acquires knowledge. If Landlord is made a party to any action for
damages or other relief against which Tenant has indemnified Landlord, as
aforesaid, then Tenant shall defend Landlord, pay all costs and shall provide
effective counsel to Landlord in such litigation with counsel reasonably
satisfactory to Landlord and shall pay any and all judgments or sums due
pursuant to any settlement agreement which is mutually satisfactory to Landlord
and Tenant.
25. Liens, Generally. Tenant shall not create or cause to be imposed,
claimed or filed upon the Premises, or any portion thereof, or upon the interest
of Landlord therein, any lien, charge or encumbrance whatsoever. If, because of
any act or omission of Tenant, any such lien, charge or encumbrance shall be
imposed, claimed or filed, Tenant shall, at its sole cost and expense, cause the
same to be fully paid and satisfied or otherwise discharged of record (by
bonding or otherwise) and Tenant shall indemnify and save and hold Landlord
harmless from and against any and all costs, liabilities, suits, penalties,
claims and demands whatsoever, and from and against any and all attorneys' fees,
at both trial and all appellate levels, resulting or on account thereof and
therefrom. If Tenant shall fail to comply with the foregoing provisions of this
Paragraph 25, then Landlord shall have the option of paying, satisfying or
otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance
and Tenant shall reimburse Landlord, upon demand and as additional rent, for all
sums so paid and for all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon, until paid.
26. Mechanics Liens. Landlord's interest in the Premises shall not be
subjected to liens of any nature by reason of Tenant's construction, alteration,
renovation, repair, restoration, replacement or reconstruction of any
improvements on or in the Premises, or by reason of any other act or omission of
Tenant (or of any person claiming by, through or under Tenant) including, but
not limited to, mechanics' and materialmen's liens. All persons dealing with
Tenant are hereby placed on notice that such persons shall not look to Landlord
or to Landlord's credit or assets (including Landlord's interest in the
Premises) for payment or satisfaction of any obligations incurred in connection
with the construction, alteration, renovation, repair, restoration, replacement
or reconstruction thereof by or on behalf of Tenant. Tenant has no power, right
or authority to subject Landlord's interest in the Premises to any mechanics or
materialmen's lien or claim of lien. If a lien, a claim of lien or an order for
the payment of money shall be imposed against the Premises on account of work
performed, or alleged to have been performed, for or on behalf of Tenant, Tenant
shall, within thirty (30) days after written notice of the imposition of such
lien, claim or order, cause the Premises to be released therefrom by the payment
of the obligation secured thereby or furnish a bond or by any other method
prescribed or permitted by law. If a lien is released, Tenant shall thereupon
furnish Landlord with a written instrument of release in form for recording or
filing in the
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appropriate office of land records of the County in which the Premises is
located, and otherwise sufficient to establish the release as a matter of
record.
27. Contest of Liens. Tenant may, at its option, contest the validity
of any lien or claim of lien if Tenant shall have first posted an appropriate
and sufficient bond in favor of the claimant or paid the appropriate sum into
court, if permitted by law, and thereby obtained the release of the Premises
from such lien. If judgment is obtained by the claimant under any lien, Tenant
shall pay the same immediately after such judgment shall have become final and
the time for appeal therefrom has expired without appeal having been taken.
Tenant shall, at its own expense, defend the interests of Tenant and Landlord in
any and all such suits; provided, however, that Landlord may, at its election,
engage its own counsel and assert its own defenses, in which event Tenant shall
cooperate with Landlord and make available to Landlord all information and data
which Landlord deems necessary or desirable for such defense.
28. Notices of Commencement of Construction. If required by the laws of
the State in which the Premises are located or in the event permitted by the
laws of the State in which the Premises are located and Landlord so requests
upon Tenant giving notice to Landlord of its intended construction, and in the
event that Tenant reasonably contemplates construction of any work on the
Premises will cost, in the aggregate, Fifty Thousand Dollars ($50,000.00) or
more, prior to commencement by Tenant of any work on the Premises which shall
have been previously permitted by Landlord as provided in this Lease, Tenant
shall record or file a notice of the commencement of such work (the "Notice of
Commencement") in the land records of the County in which the Premises are
located, identifying Tenant as the party for whom such work is being performed,
stating such other matters as may be required by law and requiring the service
of copies of all notices, liens or claims of lien upon Landlord. Any such Notice
of Commencement shall clearly reflect that the interest of Tenant in the
Premises is that of a leasehold estate and shall also clearly reflect that the
interest of Landlord as the fee simple owner of the Premises shall not be
subject to mechanics or materialmen's liens on account of the work which is the
subject of such Notice of Commencement. A copy of any such Notice of
Commencement shall be furnished to and approved by Landlord and its attorneys
prior to the recording or filing thereof, as aforesaid.
29. Limitation on Liability of Landlord. If Tenant is awarded a money
judgment against Landlord, then Tenant's sole recourse for satisfaction of such
judgment shall be limited to execution against the Premises and any other
premises leased by Landlord to an Affiliate of Tenant. In no event shall any
stockholder, shareholder, partner, employee, officer or beneficiary of Landlord
be personally liable for the obligations of Landlord hereunder.
30. Franchise and License Agreements. Tenant shall keep and maintain in
full force during the Term all Franchise agreements, management agreements,
service and maintenance contracts, equipment leases and other contracts or
agreements reasonably necessary to the operation of the Premises for its
Permitted Use. Tenant shall, at its sole cost and expense, pay all franchise
fees, license fees, management fees or other expenses of any kind or nature
whatsoever in connection with its operation of the Premises for its Permitted
Use.
31. "Net" Lease. Landlord and Tenant acknowledge and agree that this
Lease shall be and constitute what is generally referred to as a "triple net" or
"absolute net" lease, such that Tenant
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shall be obligated hereunder to pay all costs and expenses incurred with respect
to, and associated with, the Premises and the business operated thereon and
therein, including, without limitation, all taxes and assessments, utility
charges, insurance costs, maintenance costs and repair and restoration expenses
(all as more particularly herein provided).
32. Representations, Warranties and Special Covenants. The
Representations, Warranties and Special Covenants attached hereto as Exhibit E
are incorporated herein by this reference.
33. Notices. All notices, approvals, requests, consents and other
communications given pursuant to this Lease shall be in writing and shall be
deemed to have been duly given (i) when actually received if (a) either (x) hand
delivered, (y) sent by facsimile transmission (in which event proof of delivery
shall be by telephone) (and a duplicate of such notice in (x) or (y) or such
notice shall be deposited in a regularly maintained receptacle for the deposit
of United States mail, sent by registered or certified mail, postage and charges
prepaid); (ii) two (2) days after the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, sent by registered
or certified mail, postage and charges prepaid; or (iii) the next business day
if sent via a national overnight delivery service, addressed as follows or at
such other address as either party may specify from time to time by notice to
the other party at least five (5) days prior notice of the changed address:
----------------------------------------------------------------------------------------------------------
TO TENANT: With a copy to:
_____________________________ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
_____________________________ Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P.
_____________________________ 2500 Charlotte Plaza
Attention:_____________________ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:____________________ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax:______________________ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------------
TO LANDLORD: With a copy to:
MarMar Realty Limited Partnership ____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇ ____________________________________
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ____________________________________
Attention: ▇.▇. ▇▇▇▇▇ Attention: _________________________
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: _________________________
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telefax: ___________________________
---------------------------------------------------------------------------------------------------------
34. No Waiver. No course of dealing between Landlord and Tenant, or any
delay or omission of Landlord or Tenant to insist upon a strict performance of
any term or condition of this Lease shall be deemed a waiver of any right or
remedy that such party may have, and shall not be deemed a waiver of any
subsequent breach of such term or condition.
35. Quiet Enjoyment. Landlord covenants that Tenant, upon paying the
Rent and observing and keeping the covenants, agreements and stipulations of
this Lease on its part to be kept, shall lawfully, peaceably and quietly hold,
occupy and enjoy the Premises during the Term without hindrance, ejection or
molestation. Landlord covenants and warrants that it is lawfully seized of the
Premises and has good, right and lawful authority to enter into this Lease for
the full term aforesaid,
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that the Premises are free and clear of all encumbrances that would prevent
Landlord from having such right and authority and that Landlord will put Tenant
in actual possession of the Premises on the Commencement Date.
36. Subordination. Non-Disturbance and Attornment. In the event that
Landlord elects, in its sole discretion, to place any form of financing on the
Premises, Tenant agrees to promptly enter into, execute and deliver to the
requesting party a commercially reasonable subordination, non-disturbance and
attornment agreement with any such lender, which shall acknowledge that this
Lease, Tenant's interest hereunder and Tenant's leasehold interest in and to the
Premises are junior, inferior, subordinate and subject in right, title,
interest, lien, encumbrance, priority and all other respects to any such
mortgage (which term when used anywhere in this Lease includes deeds of trust
and other security instruments and interests) or mortgages now or hereafter in
force and effect upon or encumbering Landlord's interest in the Premises, or any
portion thereof, and to all collateral assignments by Landlord to any third
party or parties of any of Landlord's rights under this Lease or the rents,
issues and profits thereof or therefrom as security for any liability or
indebtedness, direct, indirect or contingent, of Landlord to such third party or
parties, and to all future modifications, extensions, renewals, consolidations
and replacements of, and all amendments and supplements to any such mortgage,
mortgages or assignments. If, within fifteen (15) days following Tenant's
receipt of a written request by Landlord or the holder or proposed holder of any
such mortgage, mortgages or assignments, Tenant shall fail or refuse or shall
have not executed any such subordination, non-disturbance and attornment
agreement, Tenant shall be in breach and default of its obligation to do so and
of this Lease and Landlord shall be entitled thereupon to exercise any and all
remedies available to Landlord pursuant to this Lease or otherwise provided by
law.
37. Brokers. Landlord and Tenant represent and warrant to the other
that neither of them have engaged or contracted with any person, firm or entity
to serve or act as a broker, agent or finder for the purpose of leasing the
Premises, and that no broker's or real estate or other similar commissions or
fees are or shall be due in respect of the transaction contemplated by this
Lease. Landlord and Tenant each shall indemnify, defend and save harmless the
other from and against any cost and expense, including reasonable attorney's
fees, incurred by the other as a result of the untruth of any of the foregoing
representations made by it.
38. Invalidity. If any provision of this Lease shall be declared
invalid or unenforceable, the remainder of this Lease shall continue in full
force and effect.
39. Counterparts. This Lease may be executed in two (2) or more
counterparts, which taken together shall be deemed one (1) original.
40. Memorandum of Lease. The parties hereto agree not to record this
Lease. The parties agree to execute and to record in the appropriate local
registry a Memorandum of this Lease in the form attached as Exhibit B.
41. Cumulative. All rights and remedies of Landlord and Tenant herein
shall be cumulative and none shall be exclusive of any other or of any rights
and remedies allowed by law.
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42. Governing Law. This Lease shall be governed by, construed, and
enforced in accordance with the laws of the state in which the Premises is
located.
43. Successors and Assigns, Relationship. The covenants, terms,
conditions, provisions, and undertakings in this Lease shall extend to and be
binding upon the permitted successors, and assigns of the respective parties
hereto, and shall be construed as covenants running with the land. This Lease
creates and evidences a lease between Landlord and Tenant, and not a
partnership, joint venture, or other type of ownership inconsistent with a
lease, and neither Landlord nor Tenant shall make any representation to the
contrary.
44. Entire Agreement. This Lease, together with any exhibits attached
hereto, contains the entire agreement and understanding between the parties.
There are no oral understandings, terms, or conditions, and neither party has
relied upon any representation, express or implied, not contained in this Lease.
All prior understandings, terms, or conditions are deemed merged in this Lease.
This Lease cannot be changed or supplemented orally, but may be modified or
amended only by a written instrument executed by the parties. Any disputes
regarding the interpretation of any portion of this Lease shall not be
presumptively construed against the drafting party.
45. Survival. Tenant's indemnity obligations herein, including, without
limitation, those set forth in Paragraph 18 shall survive termination of this
Lease.
46. Estoppel Certificates. Tenant shall from time to time, within
fifteen (15) days after request by Landlord and without charge, give a Tenant
Estoppel Certificate in the form attached hereto as Exhibit D and containing
such other matters as may be reasonably requested by Landlord to any person,
firm or corporation specified by Landlord. If Tenant does not return the Tenant
Estoppel Certificate within such fifteen-day period, Tenant shall be deemed to
have consented to the information contained therein as if Tenant had executed
such Tenant Estoppel Certificate and returned it to Landlord.
47. Time. Time is of the essence in every particular of this Lease,
including, without limitation, obligations for the payment of money.
48. Captions and Headings. The captions and headings in this Lease have
been inserted herein only as a matter of convenience and for reference and in no
way define, limit or describe the scope or intent of, or otherwise affect, the
provisions of this Lease.
49. Waiver of Jury Trial. TO THE EXTENT ALLOWED BY APPLICABLE LAW,
TENANT AND LANDLORD HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER OF THEM OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR
ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS LEASE OR ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT TO LANDLORD'S ACCEPTING THIS LEASE.
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50. Signage. Tenant shall have the right to install signs containing
Tenant's trade name and such other identification signs on the Premises as are
permitted by applicable governmental laws and regulations. Tenant shall obtain
all governmental permits, licenses and approvals necessary to erect such signs,
and shall maintain such signs in good condition and repair. Tenant shall not
remove any identification signs without first obtaining Landlord's written
consent, which shall not be unreasonably withheld or delayed.
51. Guaranty. At the time of Tenant's execution of this Lease, Tenant
shall obtain the execution of the guaranty agreement in the form of Exhibit F
attached hereto ("Guaranty") by the Guarantor named therein ("Guarantor"). As a
condition to Tenant's exercise of a Renewal Term and accompanying Tenant's
notice of such exercise, Tenant shall deliver to Landlord a reaffirmation of the
Guaranty executed by Guarantor.
52. Pre-Existing Conditions. Notwithstanding anything to the contrary
contained herein, with respect to any condition on the Premises which was
created prior to the Term hereof which is or has been rendered unlawful or no
longer in compliance with any applicable law or regulation, including, but not
limited to, the discovery of Hazardous Materials on the Premises which were not
caused by the Tenant's use or occupancy of the Premises or the requirement of
any governmental entity to make alterations or repairs to the Premises which are
not necessitated by Tenant's use or occupancy of the Premises ("Pre-Existing
Conditions"), Landlord agrees to use commercially reasonable efforts to have the
condition remedied or payment for such condition paid by the party who created
such condition or any other third party who might reasonably be deemed liable
for such condition. In the event that Landlord is unable to seek recovery from
any such third party after reasonable efforts to do so, Landlord shall notify
Tenant of the condition and the costs associated with remediation or correction
thereof or of any liability it has incurred thereby. Within ten (10) days
following receipt of notice thereof, Tenant shall notify Landlord of its intent
to (i) correct or remediate the condition within a reasonable time thereafter or
(ii) request that Landlord remediate or correct the condition, in which case
Tenant's Base Rent hereunder shall increase by the product of such amount,
multiplied by ____________ percent (____%) annually throughout the remainder of
the Term or until Landlord has been compensated in full for such costs,
whichever comes first. In the event that Tenant agrees to correct or remediate
the Pre-Existing Condition and fails to do within a reasonable time thereafter,
Landlord shall give the Tenant written notice of its failure to comply. If the
condition is not fully corrected or remediated within thirty (30) days
thereafter, Landlord may commence to correct or remediate the Pre-Existing
Condition and raise Tenant's Base Rent hereunder in the manner set forth above.
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IN WITNESS WHEREOF, the parties have hereunto executed this Lease the
day and year first above written.
LANDLORD:
MAR MAR REALTY LIMITED
PARTNERSHIP, a Delaware limited
partnership (SEAL)
By: MAR MAR REALTY TRUST,
ATTEST: Its General Partner
By: By:
Its: Its:
TENANT:
ATTEST:
By: By:
Its: Its:
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