Exhibit 10.6
LEASE AGREEMENT
BY AND BETWEEN
MAR MAR REALTY LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
AND
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DATED
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TABLE OF CONTENTS
Page
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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
(b) Adjustment of 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......................................4
8. Landlord's Obligation............................................5
9. Surrender........................................................5
10. Alterations......................................................5
(a) Prohibition................................................5
(b) Permitted Renovations......................................5
(c) Conditions.................................................5
(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.....................................7
13. Entry............................................................8
14. Assignment and Subletting........................................8
(a) Transfers Prohibited Without Consent.......................8
(b) Change of Control Prohibited Without Consent...............8
(c) Adequate Assurances........................................9
(d) Subleases, Concessions and Licenses........................9
(e) Effect of Consent..........................................9
15. Taxes and Assessments............................................9
16. Casualty........................................................10
(a) Restoration and Repair....................................10
(b) Escrow of Insurance Proceeds..............................10
(c) Uninsured Losses..........................................10
17. Insurance.......................................................11
18. Environmental Matters...........................................13
(a) Tenant's Covenant.........................................13
(b) Clean Up..................................................13
(c) Indemnification...........................................13
19. Costs and Attorneys' Fees.......................................13
20. Default; Remedies...............................................14
(a) Default...................................................14
(b) Remedies..................................................15
(c) Tenant's Affiliates.......................................17
21. Eminent Domain..................................................17
(a) Complete Taking...........................................17
(b) Partial Taking............................................18
(c) Award.....................................................18
(d) Disputes..................................................18
22. Liability of Landlord...........................................18
23. Indemnification of Landlord.....................................19
24. Notice of Claim or Suit.........................................19
25. Liens, Generally................................................20
26. Mechanics Liens.................................................20
27. Contest of Liens................................................20
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...............21
33. Notices.........................................................21
34. No Waiver.......................................................22
35. Quiet Enjoyment.................................................22
36. Subordination...................................................22
37. Attornment......................................................23
38. Rights of Mortgagees and Assignees..............................23
39. Brokers.........................................................24
40. Invalidity......................................................24
41. Counterparts....................................................24
42. Memorandum of Lease.............................................24
43. Cumulative......................................................24
44. Governing Law...................................................24
45. Successors and Assigns, Relationship............................24
46. Entire Agreement................................................24
47. Survival........................................................25
48. Estoppel Certificates...........................................25
49. Time............................................................25
50. Captions and Headings...........................................25
51. Waiver of Jury Trial............................................25
52. Signage.........................................................25
53. Guaranty........................................................25
54. Right of First Refusal..........................................25
INDEX OF DEFINED TERMS
Section
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Affiliate .....................................................Exhibit E(l)(c)
Annual Financial Statements ..................................Exhibit E(10)(b)
Arbitrator(s) ....................................................Exhibit F(g)
Bank .....................................................................4(c)
Base Month ............................................................4(b)(i)
Base Rent ................................................................4(a)
Beneficiary .........................................................Exhibit D
Business ......................................................Exhibit E(l)(a)
Cash Flow Coverage Ratio ........................................Exhibit E(11)
CERCLA ..................................................................18(a)
Certificate .........................................................Exhibit D
Change of Control .......................................................14(b)
Code ........................................................Exhibit E (15)(a)
Commencement Date ........................................................3(a)
Company......................................................Exhibit E(1 5)(c)
ERISA Affiliate ...............................................Exhibit E(8)(e)
ERISA .........................................................Exhibit E(8)(e)
Events of Default .......................................................20(a)
Fair Market Monthly Rental ..........................................Exhibit F
Fair Market Rental ..................................................4(b)(iii)
Five-Year Adjustment Date ...........................................4(b)(iii)
Franchise .........................................................20(a)(viii)
GAAP .........................................................Exhibit E(10)(b)
Guarantor ..................................................................53
Guaranty ....................................................................3
Hazardous Materials ....................................................1 8(a)
Improvements ................................................................1
Initial Term .............................................................3(a)
Inspection Report ......................................................1 2(b)
Intellectual Property ............................................Exhibit D(4)
Land ........................................................................1
Landlord ................................................Exhibit D Recitals(A)
Lease ...................................................Exhibit D Recitals(A)
Lease ...............................................................Term 3(b)
Leased Premises .........................................Exhibit D Recitals(A)
Liabilities ............................................................1 8(c)
Material Adverse Change .......................................Exhibit E(l)(c)
Material Agreements ..............................................Exhibit E(2)
Memorandum ..........................................................Exhibit B
Mortgagee ..................................................................38
Net Worth .......................................................Exhibit E(14)
Notice of Commencement .....................................................28
Offer ...................................................................54(a)
Option Property .........................................................54(a)
Permitted Use ............................................................6(a)
Person ........................................................Exhibit E(l)(c)
Personalty ..................................................................1
Premises ....................................................................1
Price Index ...........................................................4(b)(i)
Price Index ..............................................................6(c)
Price Index for Base Month.............................................4(b)(i)
RCRA ...................................................................1 8(a)
REIT ........................................................Exhibit E(1 S)(c)
Renewal Term(s) ..........................................................3(b)
Rent .....................................................................4(c)
Rent Collection Amount ...................................................4(c)
Tenant Benefit ................................................Exhibit E(8)(e)
Tenant ..............................................................Exhibit D
Term .....................................................................3(b)
Title IV Plan .................................................Exhibit E(8)(e)
Yearly Adjustment Date ...............................................4(b)(ii)
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 ("TENANT").
In consideration of the mutual promises and agreements herein contained,
the parties agree as follows:
1. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
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 "PERSONALLY"). 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
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Lease Agreement Property Name
Tenant Name City, State
1
__________, 199_, (the "COMMENCEMENT DATE"), and ending at midnight
_________________, 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.
(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 one year prior to the
applicable Yearly 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 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 first (1st) anniversary of the
Commencement Date; and (B) each anniversary date thereafter throughout the
Term (except for the Five-Year Adjustment Dates, each, a "YEARLY
ADJUSTMENT DATE"), there shall be made a cost of living adjustment of the
annual Base Rent payable hereunder. Each yearly 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 Yearly Adjustment Date and the Price Index for the Base Month;
provided that in no event shall the cost of living adjustment on any
Yearly Adjustment Date be a downward adjustment or be less than one
percent (1%) or greater than three percent (3%). If the Price Index for
the month preceding the applicable Yearly Adjustment Date is not available
as of any Yearly 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.
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Lease Agreement Property Name
Tenant Name City, State
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iii. 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 market-based adjustment to the annual Base Rent payable hereunder.
Each such adjustment shall be equal to the greater of: (i) the annual Base
Rate which would be payable hereunder calculated as if the Five-Year
Adjustment Date were a Yearly Adjustment Date; or (ii) the "FAIR MARKET
RENTAL" determined as set forth on EXHIBIT F attached hereto and
incorporated by this reference.
(c) Payment of Base Rent. Tenant shall pay 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, at its sole
option, 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 by Tenant (as designated from time to time by Landlord) of whatsoever
nature required or contemplated by this Lease shall be debited monthly or from
time to time, as otherwise provided for herein for payment and such amounts,
from Tenant's account in the Bank or another financial institution designated by
Landlord and 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 upon written 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, Tenant shall pay to Landlord an
administrative late charge of five percent (5%) of the amount of such payment.
In addition, such past due payment shall bear interest at the lesser of eighteen
percent ( 18%) 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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Lease Agreement Property Name
Tenant Name City, State
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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 double 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 ("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 operate the Business 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.
(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").
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
________________________________________________________________________________
Lease Agreement Property Name
Tenant Name City, State
4
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 be withheld by Landlord in its sole and absolute
discretion. 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,
Landlord may, from time to time, at its option require Tenant to make the
alteration(s) in order to comply with the current law. However, Tenant shall not
be entitled to alter the otherwise "grandfathered" structure without Landlord's
prior written consent.
(b) Permitted Renovations. Landlord acknowledges that various minor,
non-structural alterations may be undertaken by Tenant from time to time with
the approval of Landlord, which approval shall not be unreasonably withheld or
delayed. 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.
(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
________________________________________________________________________________
Lease Agreement Property Name
Tenant Name City, State
5
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,
regulations of governmental agencies or authorities.
ii. If the cost of such work will exceed _________________ AND
NO/100 DOLLARS ($__________), 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. 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 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
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Lease Agreement Property Name
Tenant Name City, State
6
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) 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 be
withheld by Landlord in its sole and absolute discretion and may be conditioned
upon the payment by Tenant to Landlord of a fee (which fee shall be considered
additional rent).
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, 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
elects to pay, any sum of money or do any 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
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Lease Agreement Property Name
Tenant Name City, State
7
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, 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. If
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 of this Article shall
be voidable at Landlord's option.
(b) Change of Control Prohibited Without Consent. Tenant shall not,
without the prior written consent of Landlord, 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); (iii) any
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transaction, or series of transactions, pursuant to which Tenant is merged with
or consolidated into another entity and Tenant is not the surviving entity; or
(iv) the sale, assignment, transfer, exchange or other disposition of the stock,
membership interest, general partner interest, or other legal or beneficial
interest in Tenant (or any direct or indirect owner thereof) which results in a
direct or indirect change or transfer of management or control of Tenant, or a
merger, consolidation or other combination of Tenant (or any direct or indirect
owner thereof) with another entity which results in a change or transfer of
management or control of Tenant.
(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. In addition, adequate assurance shall mean that
any such assignee shall have a net worth (exclusive of good will) of not less
than ______________________ AND NO/100 DOLLARS ($________). 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.
(e) Effect of Consent. Unless expressly agreed by Landlord in
writing to the contrary, Landlord's consent to any assignment, sublease,
concession agreement, license agreement or any transfer of this Lease shall not
operate to release any Tenant-assignor from its obligations hereunder, with
respect to which said Tenant assignor shall remain personally liable.
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 whatsoever.
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 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
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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. Other than as set forth in this
SUBPARAGRAPH (A), if, during the Term, the Improvements and/or Personalty shall
be destroyed or damaged in whole or in part by fire or any cause whatsoever,
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. The foregoing notwithstanding, 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, then Landlord may at its option elect to terminate this
Lease and receive all insurance proceeds for such damage and destruction.
(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 ___________________ AND NO/100 DOLLARS ($________), the
proceeds of all insurance policies maintained by Tenant plus the amount of any
deductible shall be deposited in Landlord'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 Landlord 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 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.
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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.
v. Business Interruption Insurance. Tenant shall provide and
keep in full force and effect business interruption insurance, without a
provision for co-insurance, in an amount sufficient to pay Rent, operating
expenses, taxes and insurance for the Premises for a period of at least
twelve (12) months.
vi. 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.
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vii. 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 provide a
waiver of subrogation from its insurance carrier.
viii. 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 deductibles not more than Five Thousand
Dollars ($5,000) per occurrence. 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.
(c) 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.
(d) 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.
(e) 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
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.
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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 minor
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. 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. 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
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.
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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 Rent, or any other sum
of money payable hereunder (whether as additional rent or otherwise) and
such failure is not cured within five (5) days after the date such sum was
due;
ii. 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 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;
iii. 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 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;
iv. Tenant's failure to provide insurance coverage (or allows
such coverage to be canceled or lapse) pursuant to its obligation
hereunder;
v. 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;
vi. 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;
vii. if, except as a result of damage, destruction or a
partial or complete condemnation, Tenant voluntarily ceases operations on
the Premises for a period in excess of thirty (30) days;
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viii. if there has been a default or 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;
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 Franchisor's intent to terminate, suspend
or not renew the Franchise;
x. if Tenant vacates, abandons or fails to continuously
operate the Business on the Premises for the Permitted Use; or
xi. if Tenant or any of its Affiliates defaults under any
other lease with Landlord or an Affiliate of Landlord.
(b) Remedies. If any of the Events of Default hereinabove specified
shall occur, Landlord, at any time thereafter, 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 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 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
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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 sole discretion may deem
advisable. Landlord shall be under no obligation to relet the Premises or
otherwise mitigate Landlord's damages, unless otherwise required by
applicable law. If Landlord relets or attempts to relet the Premises,
Landlord shall be the sole judge as to the terms and provisions of any new
lease or sublease and of whether or not a particular proposed new tenant
or sublessee is acceptable to Landlord. 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
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, 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,
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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. Regardless of
which of the foregoing alternative remedies is chosen by Landlord under
this SUBPARAGRAPH (B), Landlord shall not be required to relet the
Premises nor exercise any other right granted to Landlord pursuant to this
Lease, nor shall Landlord be under any obligation to minimize or mitigate
Landlord's damages or Tenant's loss as a result of Tenant's breach of or
default under this Lease.
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.
vi. 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 reentry,
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.
(c) Tenant's Affiliates. Landlord may enter into leases with
Affiliates of Tenant. As an inducement to Landlord entering into leases with
Tenant's Affiliates, Tenant and Tenant's Affiliates shall not receive or collect
any payments, dividends, disbursements, distributions, contributions or any
other sums from Tenant or Tenant's Affiliates at any time after an Event of
Default has occurred under this Lease or a default has occurred (and the
applicable notice and cure periods, if any, have expired) under any other lease
between Landlord and: (i) Tenant; (ii) any Affiliate of Tenant; (iii) Guarantor;
or (iv) any Affiliate of Guarantor.
21. Eminent Domain.
(a) Complete Taking. If the whole of the Premises shall be taken or
condemned for any public or quasi-public use or purpose, by right of eminent
domain or by purchase in lieu
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thereof, or if a substantial portion of the Premises shall be so taken or
condemned that the portion remaining is not sufficient and suitable, in the
mutual reasonable judgment of Landlord and Tenant, for the continued operation
of the business contemplated by this Lease to be conducted thereon, therein or
therefrom so as to effectively render the Premises untenantable, then this Lease
and the Term hereby granted shall cease and terminate as of the date on which
the condemning authority takes possession and all Rent shall be paid by Tenant
to Landlord up to that date or refunded by Landlord to Tenant if Rent has
previously been paid by Tenant beyond that date.
(b) Partial Taking. If a portion of the Premises is taken, and the
portion or portions remaining can, in the mutual reasonable judgment of Landlord
and Tenant, be adapted and used for the conduct of Tenant's business operation,
such that the Premises are not effectively rendered untenantable, then Tenant
shall promptly restore the remaining portion or portions thereof to a condition
comparable to their condition at the time of such taking or condemnation, less
the portion or portions lost by the taking, and this Lease shall continue in
full force and effect except that the Rent payable hereunder shall, if
necessary, be equitably adjusted to take into account the portion or portions of
the Premises lost by the taking and any award received by the parties.
(c) Award. The entire award for the Premises or the portion or
portions thereof so taken shall be apportioned between Landlord and Tenant as
follows: (i) if this Lease terminates due to a taking or condemnation, Landlord
shall be entitled to the entire award; or (ii) if this Lease does not terminate
due to such taking or condemnation, Tenant shall be entitled to the award to the
extent required for restoration of the Premises, and Landlord shall be entitled
to the balance of the award not applied to restoration. If this Lease does not
terminate due to a taking or condemnation, Tenant shall, with due diligence,
restore the remaining portion or portions of the Premises in the manner
hereinabove provided. In such event, the proceeds of the award to be applied to
restoration shall be deposited with the Bank or another financial institution
designated by Landlord as if such award were insurance proceeds, and the amount
so deposited will thereafter be treated in the same manner as insurance proceeds
are to be treated under PARAGRAPH 16(B) of this Lease until the restoration has
been completed and Tenant has been reimbursed for all the costs and expenses
thereof. If the award is insufficient to pay for the restoration, Tenant shall
be responsible for the remaining cost and expense of such restoration.
(d) Disputes. If Landlord and Tenant cannot agree in respect of any
matters to be determined under this Article, a determination shall be requested
of the court having jurisdiction over the taking or condemnation; provided,
however, that if said court will not accept such matters for determination,
either party may have the matters determined by a court otherwise having
jurisdiction over the parties.
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, 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
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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; (c) any acts, omissions or negligence of
Tenant, in, on, or about the Premises, (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; (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; (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; or (j) any other act or omission of Tenant, its employees, agents,
invitees, customers, licensees or contractors.
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 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 or, at Landlord's option, shall pay all attorneys' fees and costs
incurred by Landlord in connection
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with its own defense or settlement of said litigation.
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 mechanic's 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 by furnishing 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 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.
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28. Notices of Commencement of Construction. If required or allowed by the
laws of the State in which the Premises are located, 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. 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 involving or relating 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 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)
together with any and all other assessments, charges, costs and expenses of any
kind or nature whatsoever related to, or associated with, the Premises and the
business operated thereon and therein; provided, however, that Landlord shall
nonetheless be obligated to pay any debt service on any mortgage encumbering
Landlord's fee simple interest in the Premises, and Landlord's personal income
taxes (if any) with respect to the Rent received by Landlord under this Lease.
Except as expressly hereinabove provided, Landlord shall bear no cost or expense
of any type or nature with respect to, or associated with, the Premises.
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
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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:
Attention:
Telephone: Telephone:
Telefax: Telefax:
TO LANDLORD: with a copy to:
Mar Mar 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, 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. This Lease, Tenant's interest hereunder and Tenant's
leasehold interest in and to the Premises are hereby agreed by Tenant to be and
are hereby made junior, inferior, subordinate and subject in right, title,
interest, lien, encumbrance, priority and all other respects to any 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
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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. Upon recording of any such mortgage,
mortgages or assignments, the same shall be deemed to be prior in effect, lien
and encumbrance to this Lease, Tenant's interest hereunder and Tenant's
leasehold interest in and to the Premises irrespective of the dates of
execution, delivery or recordation of any such mortgage, mortgages or
assignments and in the event of any conflict between the terms of this Lease and
the terms of such instrument, the terms of such instrument shall control. The
foregoing subordination provisions of this PARAGRAPH 36 shall be automatic and
self-operative without the necessity of the execution of any further instrument
or agreement of subordination on the part of Tenant. However, if Landlord or the
holder or proposed holder of any such mortgage, mortgages or assignments shall
request that Tenant execute and deliver any further instrument or agreement of
subordination of this Lease, Tenant's interest hereunder or Tenant's leasehold
interest in the Premises to any such mortgage, mortgages or assignments in
confirmation or furtherance of or in addition to the foregoing subordination
provisions of this PARAGRAPH 36, Tenant shall promptly execute and deliver the
same to the requesting party. 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 further instrument or agreement of subordination, for
whatever reason, 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. Attornment. Tenant shall attorn, and be bound under all of the terms,
provisions, covenants and conditions of this Lease, to any successor of the
interest of Landlord under this Lease for the balance of the Term remaining at
the time of the succession of such interest to such successor. In particular, if
any proceedings are brought for the foreclosure of any mortgage or security
interest encumbering or collateral assignment of Landlord's interest in the
Premises, or any portion thereof, then Tenant shall attorn to the purchaser at
any such foreclosure sale and recognize such purchaser as Landlord under this
Lease, subject, however, to all of the terms and conditions of this Lease.
Tenant agrees that neither the purchaser at any such foreclosure sale nor the
foreclosing mortgagee or holder of such security interest or collateral
assignment shall have any liability for any act or omission of Landlord, be
subject to any offsets or defenses which Tenant may have as claim against
Landlord, or be bound by any advance rents which may have been paid by Tenant to
Landlord for more than the current period in which such rents come due.
38. Rights of Mortgagees and Assignees. At the time of giving any notice
of default to Landlord, Tenant shall mail or deliver to the holders of any
mortgage on the Premises or holder of security interest in or collateral
assignment of this Lease who have, in writing, notified Tenant of their
interests (individually a "MORTGAGEE") a copy of any such notice. No notice of
default or termination of this Lease by Tenant shall be effective until any
Mortgagee shall have been furnished a copy of such notice by Tenant. If Landlord
fails to cure any default by it under this Lease, then the Mortgagee shall have,
at its option, a period of sixty (60) days after the expiration of Landlord's
cure period within which to remedy such default of Landlord or to cause such
default to be remedied. If the Mortgagee elects to cure any such default by
Landlord, then Tenant shall accept such performance on the part of such
Mortgagee as though the same had been performed by Landlord,
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and for such purpose Tenant hereby authorizes any Mortgagee to enter upon the
Premises to the extent necessary to exercise any of Landlord's rights, powers
and duties under this Lease. If, in the event of any default by Landlord which
is reasonably capable of being cured by a Mortgagee, the Mortgagee promptly
commences and diligently pursues to cure the default, then Tenant will not
terminate this Lease or cease to perform any of its obligations under this Lease
so long as the Mortgagee is, with due diligence, engaged in the curing of such
default.
39. 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.
40. 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.
41. Counterparts. This Lease may be executed in two (2) or more
counterparts, which taken together shall be deemed one (1) original.
42. 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.
43. 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.
44. 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.
45. 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 or Tenant shall make any representation to the
contrary.
46. 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.
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47. Survival. Tenant's indemnity obligations herein, including, without
limitation, those set forth in PARAGRAPH 18 shall survive termination of this
Lease.
48. 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.
49. Time. Time is of the essence in every particular of this Lease,
including, without limitation, obligations for the payment of money.
50. 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.
51. 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.
52. 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 and approved by
Landlord. Tenant shall obtain all governmental permits, licenses and approvals
necessary to erect such signs, and shall maintain such signs in good condition
and repair.
53. 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 G
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.
54. Right of First Refusal. Tenant grants Landlord a right of first
refusal as follows:
(a) If Tenant receives a bona fide offer to purchase the Business
located on the Premises, including none, some or all of the improvements,
fixtures, furniture, equipment, personal property and inventory not already a
part of the Premises, but at the time of the Offer, used in the operation of the
Business (the "OPTION PROPERTY"), which Tenant desires to accept, then Tenant
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shall give Landlord written notice of and provide Landlord with a copy of the
bona fide offer to purchase the Option Property containing all of the terms of
the proposed sale ("Offer"). Landlord shall either accept or reject such Offer
within sixty (60) days of Landlord's receipt of such Offer. If Landlord elects
to purchase the Option Property, the sale will be consummated on substantially
the same terms set forth in the Offer. If Landlord elects not to purchase the
Option Property, or if Landlord fails to deliver notice to Tenant of its
election to purchase the Option Property to Tenant within the sixty (60) days
after Landlord's receipt of such Offer, then Tenant shall be free to sell the
Option Property to the third party on the terms set forth in the Offer within
one hundred eighty (180) days after Tenant's receipt of notice of such election
by Landlord or the expiration of such sixty (60) day period, whichever is
earlier. If the sale is not concluded within such time, such Offer will be
deemed expired and Landlord's right of first refusal pursuant to this PARAGRAPH
54 shall be reinstated.
(b) If Tenant receives a notice of a default or potential default by
Tenant under the Franchise, then Tenant shall give Landlord written notice of
and provide Landlord with a copy of such notice. Notwithstanding Landlord's
other rights and remedies hereunder, Landlord may within sixty (60) days of
Landlord's receipt of such notice, elect to purchase the Option Property. If
Landlord elects to purchase the Option Property, the purchase price of the
Option Property shall be based upon an evaluation of the net book valuation of
the Option Property, subject to adjustment as may be agreed upon by the parties
and such other terms and conditions as the parties may agree. If Landlord elects
not to purchase the Option Property, or if Landlord fails to deliver notice to
Tenant of its election to purchase the Option Property to Tenant within the
sixty (60) days after Landlord's receipt of such notice, then Landlord shall
continue to maintain all other rights and remedies under this Lease for such
notice of default under the Franchise and Landlord's right of first refusal
pursuant to this PARAGRAPH 54 shall be continue.
(c) If Landlord elects to purchase the Offer Property or the Option
Property pursuant to this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ may assign its rights and
obligations with respect to such purchase to another party and the sale will be
consummated on the terms set forth above.
________________________________________________________________________________
Lease Agreement Property Name
Tenant Name City, State
26
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,
Its General Partner
By:_______________________________________
Its:______________________________________
TENANT:
By:_______________________________________
Its:______________________________________
________________________________________________________________________________
Lease Agreement Property Name
Tenant Name City, State
27