Exhibit 10.29
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the 21/st/ day of September,
2001 by and between ESA MANAGEMENT, Inc. a Delaware Corporation ("Assignor"),
and NATIONSRENT, Inc. a Delaware Corporation ("Assignee").
RECITALS:
A. Whereas, AutoNation, Inc. a Delaware corporation ("AutoNation"),
formerly known as Republic Industries, Inc., as tenant, entered in that certain
Lease Agreement dated January 15, 1996, with ELO Associates, Ltd., as landlord
(the "Master Landlord"), whereby AutoNation leased space on the 12/th/, 14/th/
and 9/th/ floors of the building located at 450 East Las Olas Boulevard, Ft.
Lauderdale, Florida, (the "Las Olas Centre I"), as amended by Square Footage
Amendment dated May 13, 1997, Amendment to Lease Agreement dated June 24, 1996,
Parking Amendment dated March 20, 1996, Parking Amendment dated January 17, 1997
(collectively, the Master Lease"). The Master Lease is attached hereto as
Exhibit "A" and incorporated herein by reference;
B. Whereas, under a Lease Assignment made as of the 3/rd/ day of December,
1997 (attached hereto as Exhibit "B" and hereafter referred to as the
"Assignment"), Assignor succeeded to the interest of Republic Industries Inc.,
as holder of the tenant's interest to the 12/th/ floor of the Las Olas Centre I
(hereinafter the "Premises"):
C. Whereas, except as otherwise provided herein, Assignor desires to assign
its rights and delegate its obligations under the Master Lease with respect to
the 12/th/ Floor (the Premises) to Assignee and Assignee desires to assume such
rights and obligations thereunder with respect to the Premises.
AGREEMENT:
In consideration of the foregoing, the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor and Assignee agree as follows:
1. Agreement. Effective as of the Effective Date Assignor represents and
warrants to Assignee that (a) Assignor's execution and delivery of this
Agreement have been duly authorized, (b) the person executing this Agreement on
behalf of Assignor is fully authorized to execute it and (c) there are no
defaults by Assignor under the Master Lease and, to Assignor's knowledge, by any
other party under the Master Lease. Effective as of the Delivery Date (as
hereafter defined) except as otherwise provided herein, Assignor hereby
transfers, conveys, assigns and sets over to Assignee all of Assignor's right,
title and interest in, to and under the Master Lease with respect to the
Premises and also transfers all of Assignor's interest in the parking spaces
referenced in the Assignment.
2. Acceptance and Agreement. Effective on the Delivery Date, except as
otherwise provided herein, Assignee expressly accepts the assignment to it of
Assignor's right, title and interest in and to the Master Lease with respect to
the Premises and effective as of the Rent Commencement Date Assignee assumes and
agree to be bound by the Master Lease with respect
to the Premises and to keep, perform and fulfill, each and all of the covenants,
agreements, terms, provisions, conditions and obligations required to be kept,
performed and fulfilled by Assignor as tenant with respect to the Premises under
the Master Lease which arise and relate to periods on or subsequent to the Rent
Commencement Date. Assignee hereby represents and warrants to Assignor that (a)
Assignee's execution and delivery of this Agreement have been duly authorized
and (b) the person executing this Agreement on behalf of Assignee is fully
authorized to execute it.
3. Occupancy and Rent Commencement. The Agreement shall be effective on the
date hereof (the "Effective Date"). Assignor shall deliver the Premises to
Assignee on December 1, 2001 (the "Delivery Date") in order to allow Assignee to
begin moving in and preparing the Premises for its occupancy (without Assignee
being liable for any Fixed Rent (as herein defined) or other charges hereunder
for such month). From and after the Delivery Date and thereafter during the term
of this Agreement and all extensions thereof, Assignee shall have the right to
utilize (in their "as is" condition) the voice and data cabling system and the
existing patch panel. The parties acknowledge that Assignor will be delivering
the Premises to Assignee in its "as is" condition. Fixed Rent shall be due and
payable by Assignee from and after January 1, 2002 (the "Rent Commencement
Date").
4. Term of Agreement. The term of this Agreement shall be three (3) years
commencing on January 1, 2002 and continuing through December 31, 2004 ("Initial
Term").
5. Rent, Taxes, Insurance, Maintenance, Parking and Utilities Payable by
Assignee. Notwithstanding anything to the contrary in the Assignment and/or
Master Lease, Assignee shall pay Assignor Fixed Rent of $625,884.00 per year
("Fixed Rent") payable in equal month installments of $52,157.00 each beginning
on January 1, 2002. The parties intend that the sum for Fixed Rent shall be full
service rent which amount already includes (and Assignee shall not be required
to pay anything additional for) Base Rent, Sales Taxes, Additional Rent, Parking
Rent, or other charges for parking spaces, utilities, janitorial or any other
costs or charges that were payable under the Master Lease including without
limitation, operating expenses, insurance, parking spaces, real estate taxes and
assessments and sales taxes on any of the foregoing. Notwithstanding anything to
the contrary in the Master Lease, throughout the Initial Term, there shall not
be any adjustments to Fixed Rent and any other increases whatsoever. To the
extent that AutoNation or Assignor is billed by Master Landlord for overtime air
conditioning and heating costs that relate to the Premises, Assignee shall
reimburse the party billed for the charges relating to the Premises within forty
five (45) days of receipt of an invoice for such charges.
6. Renewal Term. Assignee, upon written notice to Assignor of at least 180
days prior to the expiration of the Initial Term of the Agreement, shall have
the option to renew this Agreement for a period of 2 years and 1 month ("Renewal
Term") which Renewal Term shall commence on January 1, 2005 and continue through
January 31, 2007. Annual base rent (excluding taxes, insurance, maintenance,
parking and utilities) payable by Assignee to Assignor during the Renewal Term
shall be $13.18 per rentable square foot, payable in equal monthly installments
(which figure already includes sales taxes). In addition, during the Renewal
Term of the Agreement, the share of all charges for taxes, insurance,
maintenance, parking and utilities and all other non base rent charges payable
by Assignor under the Master Lease (hereinafter the
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"Additional Rent") (but only those that are attributable to the 12/th/ floor)
shall be paid on a 100% pass through basis by Assignee to Assignor as per
invoice from Master Landlord or their designee. Assignee shall also pay any
sales taxes due and payable on the Additional Rent. The Additional Rent
attributable to the 12/th/ floor shall be the Additional Rent payable by under
the Master Lease multiplied by a percentage which is the rentable square feet of
the Premises (which is 22,353 square feet) divided by the rentable square
footage of all of the space leased in the Master Lease.
7. Modular Cubicle Purchase. Assignor hereby grants, bargains, transfers
and conveys to Assignee the forty (40) modular cubicles currently in place at
the Premises for a price of $900 per cubicle. Assignor represents that it has
good title to the modular cubicles and that same are free of all liens and
encumbrances. The sum of thirty six thousand and 00/100 dollars ($900 x 40
cubicles = $36,000) shall be paid by Assignee to Assignor not later than
February 1, 2002.
8. Indemnification.
(a) Assignor hereby indemnifies and holds Assignee, its officers,
directors, employees, representatives, agents, contractors, subsidiaries,
affiliates, successors, and assigns, from any and all manner of action and
actions, cause and causes of action, suits debts, sums of money, accounts,
reckonings, covenants, warranties obligations, agreements, contracts, promises,
damages, claims and demands whatsoever, in law or in equity, accruing or
arising, directly or indirectly, in whole or in part, prior to the taking of
occupancy of the Premises for, upon or by reason of the Master Lease relating to
the Premises.
(b) Assignee hereby indemnifies and holds Assignor, its officers,
directors, employees, representatives, agents, contractors, subsidiaries,
affiliates, successors, and assigns, from any and all manner of action and
actions, cause and causes of action, suits, debts, sums of money, accounts,
reckonings, covenants, warranties, obligations, agreements, contracts, promises,
damages, claims and demands whatsoever, in law or in equity, accruing or
arising, directly or indirectly, in whole or in part, after the taking of
occupancy of the Premises for, upon or by reason of only those terms of the
Master Lease relating to the Premises which it has been assigned hereunder.
9. WAIVER OF WARRANTIES. ASSIGNEE AGREES THAT EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER ASSIGNOR NOR ASSIGNOR'S AGENTS HAVE MADE ANY
REPRESENTATIONS OR PROMISES WITH RESPECT TO THE PHYSICAL CONDITION OF THE
PREMISES, THE RENTS, LEASES OR EXPENSES OF OPERATION OR ANY OTHER MATTER OR
THING AFFECTING OR RELATED TO THE PREMISES. ASSIGNEE HAS INSPECTED THE PREMISES
AND IS THOROUGHLY ACQUAINTED WITH THEIR CONDITION, AND AGREES TO TAKE THE SAME
"AS IS", AND ACKNOWLEDGES THAT THE TAKING OF POSSESSION OF THE PREMISES BY
ASSIGNEE SHALL BE CONCLUSIVE EVIDENCE THAT THE PREMISES WERE IN GOOD AND
SATISFACTORY CONDITION AT THE TIME SUCH POSSESSION WAS SO TAKEN.
10. Notices. All notices, requests, demands or other communications
which may be or are required or permitted to be served or given hereunder
(herein, "Notices") shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid, or by a nationally
recognized overnight delivery service to Assignor and Assignee at the following
addresses:
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TO ASSIGNOR:
ESA Services Inc.
901 Pine Street
Spartanburg, South Carolina 29302
Attn: Piero Bussani, Vice President, Legal and Development
TO ASSIGNEE:
NationsRent, Inc.
Las Olas Centre, Suite 1400
450 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
Attn: Jorge L. Martin, Vice President of Real Estate and Construction
With copies to:
Attn: Joseph H. Izhakoff, Esquire, Vice President and General Counsel
at the same address
and to:
Ackerman, Senterfitt & Eidson, P.A.
Las Olas Centre II, Suite 1600
350 East Las Olas Boulevard
Suite 1600
Fort Lauderdale, Florida 33301
Attn: Theresa M. McLaughlin, Esquire
Either party may, by Notice given as aforesaid, change its address for all
subsequent Notices. Notices shall be deemed given when received in accordance
herewith.
11. Further Assurances. Promptly upon request from time to time of the
other party, each party shall do execute, acknowledge and deliver, or cause to
be done, executed acknowledged or delivered, to or at the direction of such
party, all further acts, transfers, assignments, powers and other documents and
instruments as may be so requested to give effect to the transactions
contemplated hereby. Further, Assignor agrees that it shall use commercially
reasonable efforts to enforce the terms of the Master Lease.
12. Successors and Assigns. This Agreement shall bind the parties and their
respective successors and assigns.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
14. Consent. This Agreement shall be conditioned upon obtaining the Consent
to Agreement attached hereto as Exhibit "C" to be executed by Master Landlord.
15. Clarification. Notwithstanding anything to the contrary, the parties
agree and acknowledge that Assignee's obligations and liabilities hereunder
relate only to the 12th floor of
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the Las Olas Centre I and that Assignee shall not have any liability or
responsibility under this Agreement with respect to other floors in the Las Olas
Centre I that are referenced in the Master Lease (unless such obligations are
referenced in a separate written agreement executed by Assignee).
16. Entire Agreement/Modification. This Agreement embodies the entire
understanding between the parties with respect to the transaction contemplated
herein. All prior or contemporaneous agreements, understandings,
representations, warranties and statements, oral or written, are merged into
this Agreement. Neither this Agreement nor any of its provisions may be waived,
modified, amended, discharged or terminated except by an instrument in writing
signed by the party against which that enforcement is sought, and then only to
the extent set forth in that instrument. Assignor shall not modify the Master
Lease or enter into any other agreement with respect to the Premises which would
adversely affect Assignee's rights hereunder without first obtaining the prior
written consent of Assignee.
17. Brokers. Assignor and Assignee each warrant to the other that no broker
or agent has been employed with respect to this Amendment and each agrees to
indemnify and hold the other harmless from any claims by any broker or agent
claiming compensation in respect of this Agreement alleging an agreement by
Assignor or Assignee, as the case may be. Notwithstanding the foregoing, Quality
Development LC is due a consulting fee from Assignor (pursuant to the terms of a
separate agreement between Assignor and Quality Development LC); Assignor shall
indemnify and hold Assignee harmless from any claims against Assignee relating
to any compensation or fee due Quality Development LC.
18. Conflicts. In the event of a conflict between the terms and provisions
of the Assignment and/or the Master Lease and the terms and provisions of this
Agreement, then the terms and provisions of this Agreement shall prevail and
control.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first set forth above.
WITNESSES ASSIGNOR:
ESA MANAGEMENT, INC.
/s/ Deborah Stear DeLuca
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Deborah Stear DeLuca
By: /s/ Robert A. Brannon
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/s/ Joseph Cote Name: Robert A. Brannon
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Joseph Cote Title: President
ASSIGNEE:
NATIONSRENT, INC.
/s/ Deborah Stear DeLuca
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Deborah Stear DeLuca
By: /s/ Jorge L. Martin
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/s/ Joseph Cote Name: Jorge L. Martin
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Joseph Cote Title: Vice President
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