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EXHIBIT 10.61
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter sometimes referred to as this
"Lease") is made and entered into as of the ____ day of ________, 1998, by and
between E. MOSS ROBERTSON, JR., an individual (herein sometimes referred to as
the "Landlord") and ROBERTSON OLDSMOBILE-CADILLAC, INC., a Georgia corporation
(herein sometimes referred to as the "Tenant").
WITNESSETH THAT:
For valuable consideration, Landlord and Tenant, intending to be
legally bound, hereby agree with each other as follows:
ARTICLE I
DEFINITIONS AND FUNDAMENTAL PROVISIONS
The following terms shall have the meanings set forth below when used
in this Lease, except as may otherwise be specifically provided:
1.1 Addresses:
Landlord: E. Moss Robertson, Jr.
2418 Island Drive
Gainesville, Georgia 30501
Tenant: Robertson Oldsmobile-Cadillac, Inc.
2355 Browns Bridge Road
Gainesville, Georgia 30501
Attention:
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or such other address or addresses as a party may designate by written notice
to the other party.
1.2 Property: That certain tract or parcel of land located at
2355 Browns Bridge Road, in Gainesville, Hall County, Georgia, which is more
particularly described and/or depicted on EXHIBIT "A" attached hereto and by
this reference made a part hereof (the "Property").
1.3 Premises: The Property and the improvements now or hereafter
thereon, which Premises include an automobile dealership presently comprised of
three separate buildings (the "Buildings").
1.4 Lease Year: Each Lease Year shall be a period of twelve (12)
consecutive calendar months, beginning on the expiration of the prior Lease
Year. The first Lease Year shall commence on the date that Landlord tenders
delivery of the Premises to Tenant (the "Commencement Date") and ending at the
end of the twelfth (12th) full calendar month thereafter. If Landlord has not
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tendered delivery of the Premises on or before __________________, 1998, this
Lease shall automatically expire and terminate and the parties shall have no
further obligations or rights hereunder. At the request of either party, the
parties shall execute a stipulation stating the Commencement Date, the
expiration of the first Lease Year and of the Initial Term after Landlord has
delivered the Premises to Tenant.
1.5 Basic Rent: Tenant agrees to pay as "Basic Rent" the amounts, as
adjusted, as hereinafter described, in strict accordance with the terms and
provisions of Article III hereof, as follows:
(a) Monthly Basic Rent for the period from the Commencement Date
through the 10th Lease Year, shall be as follows:
Commencement Date through 2nd Lease Year $17,000.00
3rd Lease Year through 5th Lease Year $18,000.00
6th Lease Year through end of Initial Term $20,000.00
(b) If the Extension Options (as defined in Section 1.9 below) are
duly exercised, the monthly Basic Rent shall be as follows:
Years 11-12 The greater of the monthly "Fair Rental Value" of
the Premises as of the date determined by Landlord
(or otherwise), as provided in Section 1.5(c)
hereof, or $20,000.00.
Years 13-15 The sum of (i) monthly Basic Rent payable for
Years 11-12, plus (ii) $1,000.00.
Years 16-17 The greater of the monthly "Fair Rental Value" of
the Premises as of the date determined by Landlord
(or otherwise), as provided in Section 1.5(c)
hereof, or the monthly Basic Rent payable during
Years 13-15.
Years 18-20 The sum of (i) monthly Basic Rent payable for
Years 16-17, plus (ii) $1,000.00.
(c) Fair Rental Value. (i) The monthly "Fair Rental Value" of the
Premises shall be initially determined by Landlord, from time to time, by
taking the average rental rates for comparable leases (in terms of length of
term, space, size and character of underlying premises and other relevant
factors) in rental markets that are similar to the rental market in which the
Premises is located. Landlord shall give Tenant written notice of its
determination of Fair Rental Value not less than nine (9) months, nor more than
twelve (12) months prior to the end of the Initial Term or any Extension
Period, as applicable. Tenant shall have thirty (30) days after receipt of
Landlord's notice of Fair Rental Value to notify Landlord that Tenant is
contesting same. Tenant's failure to so notify Landlord within such thirty (30)
day period shall be deemed an acceptance of the Fair Rental
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Value set forth in Landlord's notice and a waiver of Tenant's right to
contest Landlord's determination of Fair Rental Value. If Tenant timely
contests Landlord's determination of Fair Rental Value, then the parties
shall have thirty (30) days after Landlord receives Tenant's notice of
contest in accordance herewith in which to agree on the Fair Rental Value
for the applicable Extension Period. If the parties are able to agree on an
amount of rent mutually satisfactory, then such agreement shall be placed
in writing and shall be signed by the parties hereto and shall thereupon
become a part of this Lease.
(ii) If the parties hereto are unable to agree upon the
amount of the Fair Rental Value for either Extension Period at least
thirty (30) days prior to the commencement of such Extension Period,
then the disagreement shall be promptly submitted to arbitration and
each party hereto will select an arbitrator of experience and
competence in the matter, and said arbitrators shall immediately meet
for the purpose of hearing and deciding the dispute and fixing the
Fair Rental Value for the applicable Extension Period.
(iii) If the two arbitrators selected cannot agree, they shall
select a third arbitrator with qualifications similar to their own,
and if said two arbitrators cannot agree on the said third arbitrator,
they shall petition the presiding judge of the Superior Court of the
State of Georgia, in and for the County of Hall and the City of
Gainesville to appoint such arbitrator with said qualifications and
said third arbitrator shall act as an umpire between the arbitrators
selected by Landlord and Tenant, and his/her decision, made in concert
with either one or both, or individually if unable to agree with
either upon rendering the decision. The decision shall be signed by
both parties and shall thereupon become a part of this Lease. The rent
fixed by said decision shall constitute the Fair Rental Value for the
subject Years, and the Lease shall be modified to that extent only and
not otherwise. Each party shall be responsible for the fees and costs
of its own appraiser and will share equally in the cost of the third
appraiser, if needed.
1.6 Permitted Use: The Premises shall be used for the operation of an
automobile dealership selling primarily new automobiles, and initially
operating the following franchises: Cadillac, Oldsmobile, Mazda and Isuzu,
together, at Tenant's election, with such operations and services as are
ancillary and integrally related to the operation of an automobile dealership
(for example, car leasing operations and/or automobile repair shop), provided
Tenant shall at all times continue as its primary business at the Premises a
new car automobile dealership; and for no other purpose whatsoever.
1.7 Rent: "Rent" shall mean and include Basic Rent and all other amounts
and charges payable by Tenant under any provision of this Lease. Sums other than
Basic Rent that are designated as "Rent" or "additional rent" (or any similar
term indicating rent or rental) are so designated solely for the purpose of
enabling Landlord to enforce its rights hereunder, and Landlord shall have the
same remedies for Tenant's failure to pay same as for non-payment of Basic Rent.
Such sums shall not be deemed rent for purposes of computing taxes or for
governmental regulations thereon.
1.8. Reserved.
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19. TERM: Ten (10) Lease Years (being sometimes herein referred to as the
"Initial Term") to commence on the Commencement Date. Tenant shall have two (2)
options ("Extension Options") to extend the term of this Lease for a period of
five (5) Lease Years each ("Extension Periods") if exercised in strict
compliance with this Section 1.9. The Extension Options shall only be exercised,
if at all, by written notice from Tenant to Landlord given no earlier than
twenty-four (24) months and no later than six (6) months prior to the expiration
of the then existing Initial Term or first Extension Period, as applicable. (The
Initial Term and all duly exercised Extension Periods may be herein referred to
collectively as the "Term" of this Lease.) If an Extension Option is duly
exercised, then the Term shall be extended for the applicable Extension Period
pursuant to the provisions hereof, with Basic Monthly Rent as set forth in
Section 1.5 above. If Tenant shall fail to timely exercise any Extension Option
in strict accordance with the provisions of this Section 1.9, then such
Extension Option and any succeeding Extension Option shall terminate.
1.10 MEMORANDUM OF LEASE: Tenant shall not record or permit the recording
of this Lease without landlord's written consent. At Landlord's request, Tenant
shall execute and deliver a written statement in recordable form identifying the
parties hereto and the Property, specifying the Rental Commencement Date and
termination date of the Lease Term and the Permitted Use, and incorporating this
Lease by reference.
1.11 NET LEASE: This Lease is to be absolutely net to Landlord. Tenant
shall pay for all expenses, costs, impositions, taxes and other charges imposed
upon or affecting the Premises during the Term, and Landlord shall have no
obligation to pay for any matter affecting the Premises during the term hereof
except as may be explicitly set forth herein.
ARTICLE II
DEMISED PREMISES
2.1 Demise of Premises:
(a) Landlord hereby leases and demises to Tenant for the Term and
Permitted Use specified herein and Tenant rents from Landlord the Premises,
subject to the terms and conditions herein contained, and all encumbrances,
easements, restrictions, mortgages, zoning laws, and governmental or other
regulations affecting the Premises (such other encumbrances and other matters
sometimes collectively referred to herein as the "Encumbrances").
(b) The parties hereby acknowledge that there is an existing cemetery
adjacent to, but not a part of, the Premises. This cemetery is on land owned by
Landlord. Tenant has been informed by Landlord that visitors to the cemetery
have been granted the right by Landlord to park their vehicles on the Premise,
when visiting the cemetery, and have further been granted pedestrian access
across the Premises to the extent necessary to access the cemetery. Tenant
acknowledges and agrees that, during the Term of this Lease, it shall continue
to permit visitors to the cemetery to park on the Premises and to permit
pedestrian access across the Premises to the cemetery.
2.2 QUIET ENJOYMENT: Tenant, upon timely paying the Rent herein reserved
and performing and observing all of the other terms, covenants and conditions of
this Lease, shall
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peaceably and quietly have, hold and enjoy the Property during the Term without
interference by Landlord, subject to the terms of this Lease and the
Encumbrances.
ARTICLE III
RENT AND OTHER CHARGES
3.1 PAYMENT OF RENT: During the Term, Tenant covenants and agrees to pay
to Landlord, in advance, at the place designated in Section 1.1 hereof, without
demand, deduction or set-off, all Rent as defined in Section 1.7 hereof.
3.2 PAYMENT OF BASIC RENT: On the Rental Commencement Date and,
thereafter, monthly Basic Rent shall be due and payable on or before the first
(1st) day of each and every calendar month during the Term, in advance, without
demand, deduction or offset, as set forth in Section 1.5 hereinabove.
3.3 PAST DUE RENT AND ADDITIONAL RENT: If Tenant shall fail to pay, when
the same is due and payable, any Rent or any additional rent, or amounts or
charges of any character whatsoever owed to Landlord, such unpaid amounts shall
bear interest from the due date thereof to the date of payment at the rate (the
"Default Rate") which is the lesser of (i) eighteen percent (18%) per annum, or
(ii) the maximum interest rate permitted by law.
3.4 PAYMENTS ON BEHALF OF TENANT: In case of any default by Tenant in the
payment of any amounts herein provided to be paid by Tenant, including without
limitation the procuring of insurance as hereinafter provided for or in any
other payment required to be made by Tenant hereunder, Landlord, on behalf of
Tenant, may make such payment or payments or procure any such insurance, and
Tenant covenants to reimburse and pay Landlord any amount paid to expended
immediately upon demand, with interest from the date of disbursement by Landlord
at the rate set forth in Section 3.3 hereof.
3.5 UTILITIES: Tenant shall make application for, obtain, pay for, and be
solely responsible for all utilities required, used or consumed in the Premises,
including, but not limited to gas, water (including water for domestic uses and
for fire protection), telephone, electricity, sewer service, garbage collection
services, or any similar service (herein sometimes collectively referred to as
the "Utility Services"). In the event that any charge or assessment for any
Utility Service supplied to the Premises that has or could become a lien on the
premises or any portion thereof or interest therein is not paid by Tenant to the
utility supplier when due, then Landlord may, ten (10) days after written notice
to Tenant, but shall not be required to, pay such charge for and on behalf of
Tenant, with any such amount paid by Landlord being repaid by Tenant to Landlord
with interest at the Default Rate, as additional rent, within ten (10) days
after demand by Landlord. Landlord shall have absolutely no obligation with
respect to any Utility Service to the Premises and shall not be liable for any
interruptions or curtailment in Utility Services whatsoever.
3.6 TAXES: Tenant shall be responsible for the timely payment of all
taxes, public charges and assessments of whatsoever nature directly or
indirectly assessed or imposed upon the land, buildings, equipment and
improvements constituting the Premises and the rents therefrom, including
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but not limited to all real property taxes, rates, duties and assessments,
local improvement taxes, import charges or levies, whether general or special,
that are levied, charged or assessed against the Premises by any lawful taxing
authority whether federal, state, county, municipal, school or otherwise (other
than income, inheritance and franchise taxes thereon) (the "Taxes"). Taxes for
any partial tax period shall be prorated. If Landlord initially pays the Taxes,
Tenant shall reimburse Landlord therefor upon demand.
Tenant shall also promptly pay when due all taxes on its trade fixtures and
other personal property in or on the Premises.
ARTICLE IV
USE OF PREMISES
4.1 Tenant's Use: Tenant shall use the Premises solely for the Permitted
Use specified in Section 1.6, and for no other purpose whatsoever. Tenant shall
not vacate or abandon the Premises during the Term.
4.2 Legal Operation of Premises: Tenant shall not use, or suffer or
permit the Premises, or any part thereof, to be used for any purpose or use in
violation of any law, ordinance or regulation of any governmental authority, or
in any manner that will constitute a nuisance or an annoyance, or for any
hazardous purpose. Nothing contained in this Section 4.2 shall be construed to
interfere with Tenant's right to operate in the Premises for the uses and in
the manner set forth in Section 1.6 hereof, so long as they are lawful. In the
event, at any time during the Term of this Lease, any addition, alteration,
change or repair or other work of any nature, structural or otherwise, shall be
required or ordered or become necessary on account of any law, ordinance or
regulation of any governmental authority now in effect or hereafter adopted,
passed or promulgated, or on account of any other reason with respect to the
Premises, the entire expense thereof, regardless of when the same shall be
incurred or become due, shall be the liability of Tenant and in no event shall
Landlord be called upon to contribute thereto or do or pay for any work of any
nature whatsoever on or relating to the Premises. Tenant takes the Property
subject to all zoning regulations and ordinances now or hereafter in force;
provided, however, that if any zoning regulation or ordinance to which the
Premises is or becomes directly subject makes it impossible for Tenant to
continue to operate an automobile dealership at the Premises, then in such
event, Tenant may terminate this Lease by delivering ninety (90) days' advance
written notice thereof to Landlord within ninety (90) days after the date such
regulation or ordinance becomes effective as to the Premises. Such notice shall
indicate with reasonable particularity the reason such regulation or ordinance
makes it impossible for Tenant to continue to operate an automobile dealership
at the Premises and shall include a citation of such regulation or ordinance.
4.3 Alterations to Premises: Except as described in Section 5.3
hereinbelow, Tenant shall not alter the exterior of the Premises, or make
interior structural changes or make any other changes or alterations to the
Premises without first obtaining Landlord's written approval for such
alterations, which approval shall not be unreasonably withheld or delayed. All
alterations shall remain upon the Premises and shall become Landlord's property
upon the expiration or other termination of this Lease; provided, however, that
Landlord may require any alteration or improvement made by Tenant without
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5.3 Improvements: Landlord and Tenant acknowledge that Tenant may make
certain improvements to the Buildings from time to time ("Tenant's
Improvements"), as provided or required pursuant to the terms of this Lease.
Tenant's Improvements shall be subject to all of the terms of this Lease and
must first be approved by Landlord in writing, which approval shall not be
unreasonably withheld or delayed. All such Tenant's Improvements which are
fixtures shall become the property of Landlord upon the installation thereof.
5.4 As-Is Lease: Tenant acknowledges that Tenant is leasing the Premises "as
is" without any warranty or representation and that Landlord has not made, and
is not hereby making, any warranties or representations pertaining to the
physical condition of the Premises, any part thereof or any improvements
thereon.
ARTICLE VI
ACCESS TO PREMISES
6.1 Access to Premises: Tenant agrees that Landlord, its agents, employees,
or servants or any person authorized by Landlord may enter the Premises to
inspect the condition of same, to cure defaults of Tenant as provided for
herein, and to exhibit the same to prospective tenants, purchasers, mortgagees
or others interested in the Premises. Such entry, cure or exhibition shall not
constitute an eviction of Tenant in whole or in part, Landlord agreeing to
employ its reasonable efforts in attempting to minimize any interruption to the
business operations of Tenant resulting from Landlord's (or its designated
representatives') entry to the Premises. Nothing herein contained, however,
shall be deemed or construed to impose upon Landlord any obligation or liability
whatsoever for the inspection, care, supervision, repair, improvement, addition,
change, or alteration of the Premises.
ARTICLE VII
INSURANCE AND INDEMNIFICATION
7.1 Tenant Liability Insurance: Tenant shall maintain as its sole expense
during the Term hereof, General Commercial Liability or General Garage Liability
insurance insuring both Tenant and Landlord covering the Premises with single
limit coverage of a least $1,000,000.00 per occurrence and not less than
$2,000,000 in the aggregate in companies licensed and in good standing in the
State of Georgia in the joint names of Landlord and Tenant. Tenant shall
further maintain at its sole expense a commercial umbrella policy with single
limit coverage of at least $5,000,000 per occurrence and not less than
$5,000,000 in the aggregate in companies licensed and in good standing in the
State of Georgia in the joint names of Landlord and Tenant. Tenant shall keep
in force all-risk (Special Form) coverage insurance for the full replacement
value of all of Tenant's personal property within the Premises and on the
Property, including but not limited to, fixtures, inventory, trade fixtures,
furnishings and other personal property. In addition, Tenant shall keep in
force workers compensation or similar insurance to the extent required by law.
Finally, Tenant shall maintain, at its sole cost and expense, Special Form
("all-risk") property insurance covering the Buildings for the full replacement
cost thereof (excluding footings and foundations), providing protection against
perils included in the Special Form ("all-risk") insurance policy. All
insurance required under this Section
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Landlord's written consent to be removed by Tenant by written notice thereof
given to Tenant no later than sixty (60) days after the expiration or earlier
termination of the Term. There shall be no signs or any other equipment on the
roof any of the Buildings or of any other structure now or hereafter existing
on the Property. Notwithstanding the foregoing, Tenant shall be permitted,
without the requirement of Landlord's prior consent, to make interior,
cosmetic, non-structural alterations to the Premises provided that: (i) the
value and structural integrity of the Premises are not decreased or diminished
hereby; (ii) all such work is expeditiously completed in a good and workmanlike
fashion and in compliance with all applicable laws, ordinances and regulations
and in conformity with all provisions of this Lease; and (iii) Tenant obtains
lien waivers consistent with the provisions of Section 4.4 hereof.
4.4 Liens: Tenant will not create or permit to be created or to remain,
and will discharge, any lien (including, but not limited to, the liens of
mechanics, laborers or materialmen for work or materials alleged to be done or
furnished in connection with the Premises), encumbrance or other charge upon
the Premises or any part thereof. Landlord reserves the right to enter the
Premises to post and keep posted notices of non-responsibility for any such
lien.
ARTICLE V
REPAIRS AND MAINTENANCE
5.1 No Maintenance or Repair by Landlord: Landlord shall have no
obligation to improve, alter, replace, maintain and/or repair the Premises or
any part thereof. Landlord may inspect the Premises at all reasonable times to
determine whether Tenant has fulfilled its maintenance and repair obligations
under this Lease and to otherwise inspect or exhibit the Premises; provided,
however, that Landlord shall never be obligated to inspect the Premises for any
reason.
5.2 Maintenance, Repair and Replacement Obligations of Tenant: Tenant
shall, at Tenant's expense, at all times keep and maintain the entire Premises
in good repair and condition, including without limitation the diligent and
prompt repair of the roof and all exterior supporting walls, foundations, HVAC,
plumbing, electrical and other systems, rain gutters and spouting and all
esthetic aspects of the Premises and shall also keep the non-structural portions
of the Premises (specifically including the storefront, windows and automatic or
other doors of the Premises) in good order, condition, and repair, clean,
sanitary and safe, including the replacement of equipment, fixtures and all
broken glass (with glass of the same size and quality). Tenant shall also,
during the Term hereof, maintain in good condition and repair the non-building
areas of the Property including the sidewalks, driveways, landscaped areas and
parking areas, and including patching, striping, cleaning, sweeping and other
maintenance. In the event Tenant fails to perform any of its obligations as
required hereunder, Landlord may (but shall not be required to) perform and
satisfy same, and Tenant hereby agrees to reimburse Landlord, as additional
rent, for the cost thereof, together with interest at the Default Rate, promptly
upon demand. The parties agree that it shall be Tenant's sole responsibility at
all times during the Term of this Lease to maintain the Premises in structurally
sound, leak-free condition so that the Premises shall be maintained at all times
as if operations therein were to continue beyond the expiration of the Term and
so that all normal maintenance and repair during the Term shall be completed
when the Premises are surrendered to Landlord.
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7.1 shall be written by companies rated A or better in the most current
edition of Best's Insurance Reports. Tenant will cause such insurance policies
to name Landlord and its agents (and, at Landlord's election, any lender whose
loan is secured by the Premises (a "mortgagee")) as a named insured thereunder
with respect to liability policies and to be written so as to provide that the
insurer waives all right of recovery by way of subrogation against Landlord
(and, at Landlord's election, any mortgagees) in connection with any loss or
damage covered by the all-risk (Special Form) policy in accordance with the
provisions of Section 7.2 hereof. Tenant shall deliver said policies of
liability, workers compensation and all-risk insurance or certificates thereof
to Landlord at or prior to its execution of this Lease, and thereafter from time
to time at the reasonable request of Landlord. Should Tenant fail to effect the
insurance called for in this Lease, Landlord may, but shall not be obligated to,
procure said insurance and pay the requisite premiums, in which event, Tenant
shall promptly pay all sums so expended by Landlord as additional rent following
invoice. Each insurer under the policies required hereunder shall agree by
endorsement on the policy issued by it or by independent instrument furnished to
Landlord that it will give Landlord at least thirty (30) days prior written
notice before the policy or policies in question shall be altered or canceled.
Tenant's property insurance policy shall insure Landlord and any mortgagee, as
their interests may appear.
7.2 Waiver of Subrogation: Tenant hereby releases Landlord and anyone
claiming through or under Landlord by way of subrogation from any and all
liability for any loss of or damage to property, whether or not caused by the
negligence or fault of the Landlord, to the extent same is required to be
insured pursuant to the requirements of this Lease. In addition, Tenant shall
cause each such insurance policy carried by it insuring the Buildings or
Tenant's personal property therein (and including the insurance coverages
required in Section 7.1 hereinabove) to be written to provide that the insurer
waives all rights of recovery by way of subrogation against the Landlord in
connection with any loss or damage covered by the policy.
7.3 Indemnification and Release: Tenant hereby agrees to indemnify,
protect, defend and hold Landlord harmless from any and all claims, damages,
liabilities or expenses (including without limitation attorney's fees and other
costs of legal representation) (collectively "Claims") arising out of (i) any
and all claims by third parties arising from any breach or default in the
performance of any obligation of Tenant hereunder and (ii) any act, omission or
negligence of Tenant, its agents or employees, representatives or contractors
on or about the Premises or otherwise in connection with this Lease. Tenant
further releases Landlord from liability for any damages sustained by Tenant,
or any other person claiming by, through or under Tenant, due to the Premises
or any part thereof or any appurtenances thereto being or becoming out of
repair or due to the happening of any accident, including, but not limited to,
any damage caused by water, snow, ice, windstorm, tornado, gas, steam,
electrical wiring, sprinkler system, plumbing, heating and air conditioning
apparatus. Notwithstanding the foregoing, Tenant's indemnification pursuant to
this Section 7.3 shall not apply to any Claims arising solely as a result of
the willful acts or negligence of Landlord or its agents, employees,
representatives, or contractors. Landlord shall not be liable for any damage
to, or loss of, Tenant's personal property, inventory fixtures or improvements
from any cause whatsoever. The provisions of this Section 7.3 shall survive the
expiration or earlier termination of this Lease.
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ARTICLE VIII
CASUALTY AND CONDEMNATION
8.1 Fire, Explosion or Other Casualty: In the event the Premises are
damaged by fire, explosion or any other casualty, then except as provided in
Section 8.2 or below in this Section 8.1, the damage shall be repaired by
Tenant, said repairs to be substantially completed within 270 days after the
casualty causing damage has occurred, subject to force majeure events beyond
Tenant's reasonable control.
In the event the Premises shall be damaged or destroyed to the extent of
seventy-five percent (75%) or more of the total square footage of all Buildings
and other improvements on the Premises (hereinafter, a "Casualty") and such
Casualty shall occur after the first five (5) Lease Years of the Term of the
Lease, then and in such event Tenant may elect by written notice to Landlord
delivered within thirty (30) days after such Casualty either to repair or
rebuild the Premises, as aforesaid, or to terminate this Lease, effective as of
the date Tenant's notice is delivered to Landlord. If Tenant elects to
terminate the Lease pursuant to this Section 8.1, then Tenant shall direct its
insurance company(s) to deliver directly to Landlord all insurance proceeds to
be paid for or in connection with said Casualty; provided, in no event shall the
amount of such insurance proceeds payable to Landlord be less than the full
replacement value of all such improvements which have been so damaged or
destroyed, as reasonably determined by Landlord's insurance adjuster. If the
insurance proceeds are less than the full replacement value as aforesaid, Tenant
shall pay such deficiency to Landlord upon demand. If Tenant fails to deliver
notice of its election to Landlord within the 30-day period reference above.
Tenant shall be deemed to have elected to repair or rebuild the Premises and the
Lease shall remain in full force and effect.
If this Lease is not terminated pursuant to the preceding paragraph, then
Tenant shall restore and repair the Buildings and other improvements in an
expeditious manner. If Tenant purchases, at its sole option, rent insurance to
compensate Landlord for any lost rents as a result of damage or destruction to
the Premises, then Basic Rent (and other Rent) shall abate during any period
following damage to the Premises in a fair and equitable fashion according to
the proportion of the Premises that cannot reasonably be utilized by tenant,
provided that the amount of such abatement shall not exceed the rent insurance
proceeds actually received by Landlord with respect thereto. Notwithstanding
the provisions of the Section 8.1, tenant shall be the owner of its trade
fixtures and shall be entitled to any insurance proceeds attributable to said
trade fixtures.
8.2 Condemnation: If the whole of the Premises, or so much thereof as to
render the balance unusable by Tenant, shall be taken under power of eminent
domain, or otherwise transferred in lieu thereof, this lease shall
automatically terminate as of the date possession is taken by the condemning
authority. No award for any total or partial taking of any real property
interest in or to the premises shall be apportioned, and Tenant hereby
unconditionally assigns to Landlord any award which may be made for real
property interests in such taking or condemnation. In the event of a partial
taking which does not result in the termination of this lease, Basis Rent shall
be apportioned according to the part of the Buildings remaining usable by
Tenant.
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8.3 Condemnation Award: All compensation awarded or paid for any taking
or acquiring under the power or threat of eminent domain, whether for the whole
or a part of the Premises, shall be the property of Landlord, and Tenant hereby
assigns to Landlord all of the Tenant's right, title and interest in and to any
such award. Notwithstanding the foregoing, Tenant shall be entitled to claim,
prove and receive in the condemnation proceeding or by separate action, such
awards as may be allowed for loss of lease, moving expense, fixtures and other
equipment installed by it, but only if such awards shall be made by the
condemnation court in addition to the award made by it for the land and the
buildings or part thereof so taken.
ARTICLE IX
ASSIGNMENT AND SUBLETTING
9.1 Assignment and Subletting: Tenant's interest in the premises shall
be limited to the use and occupancy thereof in accordance with the provisions
hereof and shall be non-transferable without Landlord's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed. Any
attempts by Tenant to assign its interest in the lease, or to sublet the
Premises in whole or in part, or to sell, assign, lien, encumber or in any
manner transfer this lease or any interest therein without Landlord's prior
written consent shall constitute a default hereunder, as shall any attempt by
Tenant to assign or delegate the management or to permit the use or occupancy
of the property or the Premises or any part thereof by anyone other than Tenant.
Landlord and Tenant acknowledge and agree that the foregoing provisions have
been freely negotiated by the parties hereto and that landlord would not have
entered into this Lease without Tenant's consent to the terms of this Section
9.1. Any attempt by Tenant to assign this lease or to sublet all or any
portion of the Premises, to encumber same, or to in any manner transfer, convey,
or assign Tenant's interest therein without Landlord's prior written consent
shall be void ab initio.
Notwithstanding anything contained herein to the contrary. Tenant may
without the prior consent of Landlord, (i) assign this lease or sublease the
premises to any wholly-owned subsidiary of Tenant, to the parent corporation of
Tenant, or to a wholly-owned subsidiary of the parent corporation of Tenant, or
(ii) transfer its capital stock to the parent corporation of Tenant, or to a
wholly-owned subsidiary of the Tenant or of Tenant's parent corporation;
provided that, in the case of any such transfer, all of the assets held by
Tenant prior to such Transfer remain or become assets of the continuing
corporation. If Tenant survives as an entity after such assignment or
sublease, Tenant shall remain fully and primarily liable for performance of all
obligations of the tenant under the Lease and shall not be released as a result
thereof.
9.2 Change of Control: In furtherance of the provisions of Section 9.1
hereof, if Tenant is a partnership, limited liability company, corporation or
banking association and if the person or persons who own a majority of its
voting shares or interests at the time of the execution hereof cease to own a
majority of such shares or interests at any time hereafter (except as a result
of transfers by gift, bequest, or inheritance by or among immediate family
members), Tenant shall so notify Landlord. In the event of such change of
ownership, whether or not Tenant has notified Landlord thereof, landlord may
terminate this Lease by notice to Tenant effective sixty (60) days from the
date of such
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notice from Tenant, or the date on which Landlord first has knowledge of such
transfer, whichever shall first occur.
ARTICLE X
SUCCESSION TO LANDLORD'S INTEREST
10.1 ATTORNMENT: Tenant shall attorn and be bound to any of Landlord's
successors under all the terms, covenants and conditions of this Lease for the
balance of the remaining term.
10.2 SUBORDINATION: (a) This Lease shall be subordinate to the lien of any
mortgage or security deed or the lien resulting from any other method of
financing or refinancing now or hereafter in force against the Premises or any
portion thereof, and to any and all advances to be made under such security
instruments, and all renewals, modifications, extensions, consolidations and
replacements thereof. The aforesaid provisions shall be self-operative and no
further instrument of subordination shall be required to evidence such
subordination. Tenant covenants and agrees to execute and deliver, upon demand,
such further instrument or instruments subordinating this Lease on the foregoing
basis to the lien of any such security instruments as shall be desired by
Landlord and any mortgagees or proposed mortgagees.
(b) Notwithstanding anything to the contrary set forth in subsection (a)
above, any mortgagee may at any time subordinate its mortgage to this Lease,
without Tenant's consent, by execution of a written document subordinating such
mortgage to this Lease to the extent set forth therein, and thereupon this Lease
shall be deemed prior to such mortgage to the extent set forth in such written
document, without regard to their respective dates of execution, delivery and/or
recording. In that event, to the extent set forth in such written document, such
mortgagee shall have the same rights with respect to this Lease as though this
Lease had been executed and a memorandum thereof recorded prior to the
execution, delivery and recording of the mortgage and as though this Lease had
been assigned to such mortgagee.
10.3 ESTOPPEL CERTIFICATE: Within ten (10) days after request therefor by
Landlord, or in the event that upon any sale, assignment or hypothecation of
the Premises and/or the land thereunder by Landlord an estoppel certificate
shall be required from Tenant, Tenant agrees to deliver in recordable form, a
certificate to any proposed mortgagee or purchaser, or to Landlord, certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified, and
stating the modifications), that there are no defenses or offsets thereto (or
stating those claimed by Tenant) and the dates to which Basic Rent and other
charges have been paid, and such matters as Landlord may reasonably require.
ARTICLE XI
DEFAULT REMEDIES AND BANKRUPTCY
11.1 DEFAULT OF TENANT: In the event that Tenant (a) fails to pay all or
any portion of any sum due from Tenant hereunder or pursuant to any exhibit
hereto when due and such failure to pay continues for more than five (5)
business days after receipt of written notice from Landlord (provided
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that such 5-day grace period shall not be available more than three (3) times in
any twelve (12) month period); (b) fails to perform any other terms, covenants
and conditions hereof or is otherwise in breach of any of Tenant's obligations
hereunder or commits any other act or omission in violation of this Lease and
such failure to perform or violation continues for more than thirty (30) days
after receipt of written notice from Landlord (provided that such 30-day grace
period shall not be available more than three (3) times in any twelve (12) month
period); (c) becomes bankrupt, insolvent or files any debtor proceeding, takes
or has taken against Tenant any petition of bankruptcy; takes action or has
action taken against Tenant for the appointment of a receiver for all or a
portion of Tenant's assets, files a petition for a corporate reorganization;
makes an assignment for the benefit of creditors, or if in any other manner
Tenant's interest hereunder shall pass to another operation of law (any or all
of the occurrences of this Subsection 11.1(c) shall be deemed a default on
account of bankruptcy for the purposes hereof and such default on account of
bankruptcy shall apply to and include any guarantor of this Lease); or (d)
commits waste to the Premises or removes any betterments or improvements
thereof; then Tenant shall be in default hereunder and Landlord may, at its
option and without further notice to Tenant, terminate Tenant's right to
possession of the Premises and without terminating this Lease re-enter and
resume possession of the Premises and/or declare this Lease terminated, and may
thereupon in either event remove all persons and property from the Premises,
with or without resort to process of any court, either by force or otherwise.
Notwithstanding such re-entry by Landlord, Tenant hereby indemnifies, protects,
defends and holds Landlord harmless from any and all loss or damage which Tenant
may incur by reason of the termination of this Lease and/or Tenant's right to
possession hereunder. In no event shall Landlord's temination of this Lease
and/or Tenant's right to possession of the Premises abrogate Tenant's agreement
to pay Rent and additional charges due hereunder for the full term hereof.
Following re-entry of the Premises by Landlord, Tenant shall promptly pay all
arrearages then due and overdue and shall continue to pay all such rent and
additional charges as same become due under the terms of this Lease, together
with all other expenses incurred by Landlord in regaining possession until such
time, if any, as Landlord relets same and the Premises are occupied by such
successor, it being understood that Landlord shall have no obligation to
mitigate Tenant's damages by reletting the Premises. Upon reletting, sums
received from such new lessee by Landlord shall be applied first to payment of
costs incident to reletting; any excess shall then be applied to any
indebtedness to Landlord from Tenant other than for Basic Rent; and any excess
shall then be applied to the payment of Basic Rent due and unpaid. The balance,
if any, shall be applied against the deficiency between all amounts received
hereunder and sums to be received by Landlord or reletting, which deficiency
Tenant shall pay to Landlord in full, within five (5) days of notice of same
from Landlord. Tenant shall have no right to any proceeds of reletting that
remain following application of same in the manner set forth herein.
11.2. RIGHTS AND REMEDIES: The various rights and remedies herein
granted to Landlord shall be cumulative and in addition to any others Landlord
may be entitled to by law or in equity, and the exercise of one or more rights
or remedies shall not impair Landlord's right to exercise any other right or
remedy. All such rights and remedies may be exercised and enforced concurrently
or consecutively and whenever and as often as Landlord shall deem desirable.
The failure of Landlord to insist upon strict performance by Tenant of any of
the covenants, conditions, and agreements of this Lease shall not be deemed a
waiver of any of said rights and remedies concerning any subsequent or
continuing breach or default by Tenant of any of the covenants, conditions, or
agreements of this Lease. No surrender of the Premises shall be effected by
Landlord's acceptance of Rent or by any
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other means whatsoever unless the same be evidenced by Landlord's written
acceptance of such as a surrender. In all events, Landlord shall have the
right upon notice to Tenant to cure any breach by Tenant at Tenant's sole cost
and expense, and Tenant shall reimburse Landlord for such expense upon demand.
Tenant shall reimburse Landlord for attorneys' fees and other expenses incurred
by Landlord under this Article XI.
11.3 Landlord's Default: If Tenant alleges a breach or default by
Landlord hereunder, Tenant shall provide Landlord (and any mortgagee of
Landlord of whom Tenant has notice) with written notice thereof and provide
thirty (30) days thereafter for Landlord or its mortgagee to cure same prior to
exercising any right or remedy Tenant may have for said breach or default.
11.4 Bankruptcy: If Landlord shall not be permitted to terminate this
Lease as hereinabove provided because of the provisions of Title 11 of the
United States Code relating to Bankruptcy, as amended ("Bankruptcy Code"), then
Tenant as a debtor in possession or any trustee for Tenant agrees promptly,
within no more than fifteen (15) days upon request by Landlord to the Bankruptcy
Court, to assume or reject this Lease and Tenant on behalf of itself, and any
trustee agrees not to seek or request any extension or adjournment of any
application to assume or reject this Lease by Landlord with such Court. In such
event, Tenant or any trustee for Tenant may only assume this Lease if (A) it
cures or provides adequate assurance that the trustees will promptly cure any
default hereunder (B) compensates or provides adequate assurance that Tenant
will promptly compensate Landlord for any actual pecuniary loss to Landlord
resulting from Tenant's defaults and (C) provides adequate assurance of
performance during the fully stated term hereof of all of the terms, covenants,
and provisions of this Lease to be performed by Tenant. In no event after the
assumption of this Lease shall any then-existing default remain uncured for a
period in excess of the earlier of ten (10) days or the time period set forth
herein. Adequate assurance of performance of this Lease as set forth hereinabove
shall include, without limitation, adequate assurance (1) of the source of Rent
reserved hereunder, and (2) the assumption of this Lease will not breach any
provision hereunder.
ARTICLE XII
SURRENDER OF PREMISES
12.1 Surrender of Premises: At the expiration or earlier termination
of this Lease, Tenant shall surrender the Premises to Landlord broom clean and
good condition, and in a condition which complies with all applicable laws
reasonable wear and tear and insured casualty (for which Landlord receives the
proceeds) expected. Tenant shall promptly remove Tenant's sign, personal
property and trade fixtures upon such expiration or termination and repair any
damage or disturbance to the Premises caused by the removal of any furniture,
trade fixtures or other personal property placed in the Premises. Tenant's
failure to remove all or part of Tenant's sign, personal property and trade
fixtures within ten (10) days after such expiration or termination shall be
deemed an abandonment to Landlord of such sign, personal property and trade
fixtures and, if Landlord elects to remove all or any part of said same, such
removal, including the cost of repairing any damage to the Premises caused by
or resulting from such removal, shall be paid by Tenant.
12.2 Holding Over: Should Tenant, with Landlord's written consent,
hold over at the end of the Term of the Lease (including the Extension Term, if
applicable), Tenant shall become a Tenant
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at will and any such holding over shall not constitute an extension of this
Lease. During such holding over, Tenant shall pay Rent and other charges at the
highest monthly rate provided for herein, plus an additional fifty percent
(50%) of the Basic Rent in effect at the expiration of the Term hereof. If
Tenant holds over at the end of the Term of the Lease without Landlord's
written consent, Tenant shall be a tenant at sufferance.
ARTICLE XIII
MISCELLANEOUS
13.1 Notices: Notices and demands required or permitted to be given
hereunder may be given by personal delivery to the addresses designated in
Section 1.1 hereinabove (including courier and expedited delivery services) to
either party or any officer or other representative of the party to be
notified, or may be sent by certified mail, return receipt requested,
addressed, postage prepaid, to said addresses. Mailed notices and demands shall
be deemed to have been given upon the date of the executed return receipt
(provided that (i) if any party shall refuse delivery or (ii) if delivery fails
because of an address change that has not been received as required by this
Section 13.1, then, in either of such events, notices shall be deemed given
when mailed), or, if made by personal, courier or other expedited delivery to
the addresses designated in Section 1.1 hereinabove, then upon the delivery.
Notice of change of address for notices shall not be deemed made until received
or rejected. Unless otherwise specified by Landlord, the payment of Rent shall
be to the first address of Landlord as set forth in Section 1.1 herein.
13.2 Successors and Assigns: All covenants, promises, conditions,
representations, and agreements herein contained shall be binding upon, apply,
and inure to the parties hereto and their respective heirs, executors,
administrators, successors, and permitted assigns.
13.3 Entire Agreement: This Lease, the Environmental Addendum and the
Exhibits attached hereto constitute the sole and exclusive agreement between
the parties with respect to the Premises. No amendments, modifications of or
supplements of this Lease shall be effective unless in writing and executed by
Landlord and tenant.
13.4 Time is of the Essence: The time of the performance of all of the
covenants, conditions, and agreements of this Lease is of the essence of this
Lease.
13.5 Relationship of Parties; Usufruct: The parties hereto shall always be
as Landlord and Tenant, and nothing herein shall be construed so as to
constitute a joint venture or partnership between Landlord and Tenant. This
Lease creates a usufruct not subject to levy and sale and no estate in or with
respect to the Premises or any portion thereof is granted or conveyed hereby.
13.6 Litigation: It is mutually agreed that in the event Landlord
commences any summary proceeding for non-payment of any Rent, Tenant will not
interpose any non-compulsory counterclaim of whatever nature or description in
any such proceeding. Landlord and Tenant hereby waive the right to a trial by
jury in connection with any dispute arising out of this Lease or the use or
possession of the Premises by Tenant.
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13.7 Governing Law: This Lease shall be construed under the laws of the
State of Georgia.
13.8 Partial Invalidity: If any provision of this Lease or the application
thereof to any person or circumstance shall to any extent be held invalid, then
the remainder of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held invalid shall not be
affected thereby, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
13.9 Submission of Lease: The submission of this Lease for examination
does not constitute an offer to lease, or a reservation of or option for the
Property, and this Lease shall be effective only upon execution and delivery
thereof by Landlord and Tenant.
13.10 Interpretation: In interpreting this Lease in its entirety, the
printed provisions of this Lease and any additions written or typed thereon
shall be given equal weight, and there shall be no inference, by operation of
law or otherwise, that any provision of this Lease shall be construed against
either party hereto.
13.11 Broker: Landlord and Tenant hereby agree that in connection with
this Lease that neither have dealt with any broker or other person or entity
entitled to any brokerage commission, fee, or other compensation. Each party
shall indemnify, defend, and hold harmless the other, their agents and legal
representatives against any fee, commission, or other compensation due to any
person, firm, or corporation claiming to have acted in said party's behalf.
13.12 Limitation of Liability: Landlord's liability to Tenant for damages
or otherwise with respect to the Lease shall be limited solely to and
recovered, if at all, solely from landlord's interest in the Property.
Landlord shall, at any time and from time to time, have the absolute right to
sell, assign, pledge or otherwise transfer its interest in the Premises or this
Lease. Landlord shall be relieved of all obligation and liability hereunder
after Landlord has conveyed the Premises and assigned this Lease to a successor
Landlord. Landlord may assign this Lease to an entity in connection with the
acquisition of the Premises, in which case Landlord will be released from all
liability hereunder.
13.13 Survival of Obligations: The provisions of this Lease with respect
to any obligation of Tenant to pay any sum in order to perform any act required
by this Lease after the expiration or other termination of this Lease shall
survive the expiration or other termination of this Lease.
13.14 Headings, Captions and References: The section captions contained in
this Lease are for convenience only and do not in any way limit or amplify any
term or provision hereof. The use of the terms "hereof," "hereunder" and
"herein" shall refer to this Lease as a whole, inclusive of the Exhibits,
except when noted otherwise. The use of the masculine or neuter genders herein
shall include the masculine, feminine and neuter genders and the singular form
shall include the plural when the context so requires.
13.15 Attorneys' Fees: The unsucceessful party in any action or proceeding
shall pay for all costs, expenses and reasonable attorney's fees incurred by
the prevailing party or its agents or both in enforcing the covenants and
agreements of this Lease. The term "prevailing party" as used herein
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shall include without limitation a party who obtains legal counsel and brings
an action against the other party by reason of the other party's breach or
default and obtains substantially the relief sought, whether by compromise,
settlement or judgment.
13.16 Hazardous Substances: SEE ENVIRONMENTAL ADDENDUM ATTACHED TO THIS
LEASE.
13.17 Waiver: The waiver by Landlord of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any proceeding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No covenant, term or conditions of this Lease shall be deemed to have
been waived by Landlord, unless such waiver be in writing by Landlord and
delivered to Tenant.
13.18 Accord and Satisfaction: No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent herein stipulated shall be deemed to be other
than an account of the earliest, stipulated Rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as Rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy in this Lease provided.
13.19 Tenant defined, Use of Pronoun: The word "Tenant" shall be deemed
and taken to mean each and every person or party mentioned as a Tenant herein,
be the same one or more; and if there shall be more than one Tenant, any
notice required or permitted by the terms of this Lease may be given by or to
any one thereof, and shall have the same force and effect as if given by or to
all thereof. The use of the neuter singular pronoun to refer to Landlord or
Tenant shall be deemed a proper reference even though Landlord or Tenant may be
an individual, a corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where there is more than one Landlord
or Tenant and to either corporations, associations, partnerships, or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
13.20 Covenant to Operate: Commencing on the Commencement Date and
thereafter for the balance of the Term, Tenant hereby covenants that it shall
continuously occupy and use the Premises solely for conducting the Permitted
Use, as defined herein.
13.21 Use of Demonstration Vehicle: The parties have agreed that, as
additional consideration for Landlord to enter into this Lease, Tenant shall
make available for Landlord's use, at no charge to Landlord, any one (1) new
vehicle which Tenant maintains on the Premises for sale to its customers.
Landlord shall have the right from time to time to designate (and change) in
his sole discretion the vehicle to be provided by Tenant to Landlord in
accordance with this Section. Tenant shall supply any such vehicle to Landlord
within fifteen (15) days after written request of Landlord.
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Landlord shall be responsible for maintaining any vehicle utilized by
Landlord pursuant to this Section 13.21 in good condition (ordinary wear and
tear excepted); provided, however, Tenant shall assign or otherwise make
available to Landlord the benefit of all warranties and guarantees of every
kind in connection with such vehicle (including, but not necessarily limited
to, any manufacturer's warranty). Tenant shall maintain all insurance on the
vehicle as shall be reasonably required by Landlord.
This Section 13.21 shall apply during the term of the Lease, as same may be
extended. Upon the last day of the Term, Landlord shall redeliver possession
of any such vehicle to Tenant.
IN WITNESS WHEREOF this Lease has been executed under seal as of the day
and year first above written.
LANDLORD:
E. MOSS ROBERTSON, JR., an individual
-------------------------------------
E. Moss Robertson, Jr.
TENANT:
ROBERTSON OLDSMOBILE-CADILLAC,
INC., a Georgia corporation
By:
--------------------------------
Its:
--------------------------------
[CORPORATE SEAL]
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EXHIBIT "A"
DESCRIPTION OF PREMISES
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APPENDIX I
ENVIRONMENTAL ADDENDUM
This is an Addendum to the Lease dated _______________________ ("Lease"),
between E. MOSS ROBERTSON, JR., as Landlord, and ROBERTSON OLDSMOBILE-CADILLAC,
INC., a Georgia corporation, as Tenant. Each capitalized term which is not
defined in this Addendum shall have the meaning ascribed to such term in the
Lease. In the event of any conflict between the provisions of the Lease and
provisions of this Addendum, this Addendum shall control.
1. CONDITION OF THE PREMISES.
Tenant has had the opportunity to examine the Premises and hereby agrees
to accept them in the "as is" condition existing on the Commencement Date.
Tenant further acknowledges that Landlord has not made any representations as to
the present or future condition of the Premises, or the presence or absence of
hazardous substances (as hereinafter defined) therein. If the Premises, the
Buildings, or any equipment, trade fixtures or other mechanical apparatus
therein contains any hazardous substance, Landlord, at its election, shall have
the right to (i) cause Tenant to remove and properly dispose of same, all at
Tenant's sole cost and expense and in compliance with the provisions hereof, or
(ii) perform the removal and disposal thereof itself, in which event Tenant
shall reimburse Landlord, on demand, for the cost incurred by Landlord in doing
so and securing the certifications referred to below.
2. USE.
Landlord acknowledges that Tenant's intended use of the Premises is for
the operation of an automobile dealership and that said use may, as part of
Tenant's normal business operations, include the handling, storage, production,
disposal, sale or transportation of hazardous substances as hereinafter
defined. Except in connection with its normal business operations or as
otherwise sepcifically permitted herein, Tenant shall not cause or permit any
hazardous substances to be brought upon generated, treated, kept or used in or
about the Premises by Tenant, its agents, employee, contractors or invitees.
3. COMPLIANCE WITH LAWS.
With respect to Tenant's use of the Premises, Tenant shall at all times,
at its own cost and expense, comply with all federal, state and local laws,
ordinances, regulations and standards relating to the use, analysis,
production, storage, sale, disposal or transportation of any hazardous
materials ("Hazardous Substance Laws"), including or petroleum products or
their derivatives, solvents, PCB's, explosive substances, asbestos, radioactive
materials or waste, and any other toxic, ignitable, reactive, corrosive,
contaminating or pollution materials ("hazardous substances") which are now or
in the future subject to any governmental regulations.
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4. NOTICE TO LANDLORD.
Tenant shall give written notice to Landlord within three (3) business
days after the date on which Tenant learns or first has reason to believe that:
4.1 There has or will come to be located on or about the Premises any
hazardous substance, the production, transportation, storage, use or
handling of which requires a permit or license from any federal, state or
local governmental agency. The notice provisions of this Addendum shall not
apply to, and Landlord shall not have any right to terminate the Lease on
account of any use by Tenant in the course of a trade or business conducted
on the Premises of a substance which (a) is classified as a hazardous
substance under the Hazardous Substance Laws; (b) is of a type which, under
current industry practice, is commonly used as an integral part of Tenant's
approved business use of the Premises; (c) is so used by Tenant in full
compliance with applicable provisions of all Hazardous Substance Laws; and
(d) Tenant has given Landlord complete prior notice of its use at the
Premises.
4.2 Any release, discharge or emission of any hazardous substance has
occurred on or about the Premises.
4.3 Any (a) enforcement, cleanup, removal or other governmental or
regulatory action has been threatened or commenced against Tenant or with
respect to the Premises pursuant to any Hazardous Substances Laws; or (b)
any claim has been made or threatened by any person or entity against
Tenant or the Premises on account of any alleged loss or injury claimed to
result from the alleged presence or release on the Premises of any
hazardous substances; or (c) any report, notice, or complaint has been made
to or filed with any governmental agency concerning the presence, use or
disposal of any hazardous substances on the Premises. Any such notice shall
be accompanied by copies of any such claim, report, complaint, notice,
warning or other communication that is in the possession of or is
reasonably available to the Tenant.
Any notice required under this Section 4.3 shall be accompanied by (i)
a copy of all permits, licenses, proofs of disclosures to governmental
agencies pertaining to hazardous substances that have not previously been
furnished to Landlord; and (ii) copies of any Material Safety Data Sheets
pertaining to such substances that are required by applicable law.
5. DISPOSAL.
Except for materials that are (a) lawfully discharged from the Premises,
or (b) lawfully maintained on the Premises and/or sold in the ordinary course
of Tenant's business, Tenant shall cause any hazardous substances to be removed
from the Premises for disposal and to be transported solely by duly licensed
hazardous substances transporters to duly licensed facilities for final
disposal to the extent required by and in accordance with applicable Hazardous
Substances Laws, and shall upon request deliver to Landlord copies of any
hazardous waste manifest reflecting the proper disposal of such substances.
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6. ACTIONS AND PROCEEDINGS.
Except in emergencies or as otherwise required by law, Tenant shall not
take any remedial action in response to the presence or release of any
hazardous substances on or about the Premises without first giving written
notice of the same to Landlord. Tenant shall not enter into any settlement
agreement, consent decree or other compromises with respect to any claims
relating to any hazardous substances in any way connected with the Premises
without first notifying Landlord of Tenant's intention to do so and affording
Landlord the opportunity to participate in any such proceedings.
7. ENVIRONMENTAL AUDITS.
Landlord may, but shall not be required to, engage such independent
contractors as Landlord determines to be appropriate to perform from time to
time an audit, including environmental sampling and testing, of (a) the
Premises, the surrounding soil and any adjacent areas, and any groundwater
located under or adjacent to the Premises and/or any adjoining property, (b)
Tenant's compliance with all Hazardous Substances Laws and the provisions of
this Addendum, and (c) the provisions made by Tenant for carrying out any
remedial action that may be required by reason for the nature of Tenant's
business and its operations on the Premises (collectively an "Environmental
Audit").
7.1 COSTS AND EXPENSES.
All costs and expenses incurred by Landlord in connection with any
such Environmental Audit shall be paid by Landlord, except that if any such
Environmental Audit shows that Tenant has failed to comply with the
provisions of this Addendum, or that the Premises (including surrounding
soil and any underlying or adjacent property or groundwater) have become
contaminated due to the operations or activities at the Premises, then all
of the costs and expense of such Environmental Audit shall be paid by
Tenant. Notwithstanding the foregoing, if Landlord elects to have an
Environmental Audit performed upon the expiration or earlier termination of
the Lease (the "Final Environmental Audit"), then Landlord and Tenant shall
each pay one-half (1/2) of the cost of such Final Environmental Audit
(provided that if such Final Environmental Audit shows that Tenant has
failed to comply with the provisions of this Addendum, or that the Premises
(including surrounding soil and any underlying or adjacent property or
groundwater) have become contaminated due to the operations or activities
of Tenant at the Premises, then all of the costs and expense of such Final
Environmental Audit shall be paid by Tenant).
7.2 CONDUCT OF AUDIT.
Each Environmental Audit (excepting only the Final Environmental
Audit, which shall not require any notice to Tenant) shall be conducted (a)
only after advance notice thereof has been provided to Tenant at least
twenty-four (24) hours prior to the date of such audit, and (b) in a manner
reasonably designed to minimize the interruption of Tenant's operations and
use of the Premises. Any damages to the Premises or to
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Tenant's property which is caused by the independent contractor conducting
the Environmental audit shall be paid for by the party responsible for
paying for the Environmental Audit, as determined pursuant to Section 7.1
above.
8. TERMINATION OF LEASE.
Upon the expiration or earlier termination of the term of the Lease,
Tenant shall (a) cause all hazardous substances previously owned, stored or
used by Tenant to be removed from the Premises and disposed of in accordance
with applicable provisions of law; (b) remove any aboveground or underground
storage tanks or other containers installed or used by Tenant to store any
hazardous substances on the Premises, and repair any damage to the Premises
caused by such removal; (c) cause any soil, groundwater or other portion of the
Premises which is contaminated, to be decontaminated, detoxified or otherwise
cleaned up in accordance with the requirements of any governmental authority
with control over the Premises; (d) cause any property adjacent to the Premises
which is owned or controlled by Landlord which has become contaminated by any
hazardous substances brought on to, stored or used by Tenant on the Premises;
to be decontaminated, detoxified or otherwise cleaned up in accordance with the
requirements of any governmental authority with control over such property; and
(e) surrender possession of the Premises to Landlord free of hazardous
substances.
9. INDEMNIFICATION BY TENANT.
Tenant shall indemnify, defend with counsel reasonably acceptable to
Landlord, and hold Landlord free and harmless from any and all liabilities,
damages, claims, penalties, fines, settlements, causes of action, costs or
expense, including reasonable attorneys' fees, environmental consultant and
laboratory fees and the costs and expense of investigating and defending any
claims or proceedings, resulting from or attributable to (a) the presence,
disposal, release or threatened release of any hazardous substance that is on,
from or affecting the Premises including the soil, water, vegetation,
buildings, personal property, persons, animals, or otherwise; (b) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or relating to the hazardous substance; (c) any lawsuit or
administrative order relating to the hazardous substance; and (d) any violation
of any laws applicable to the hazardous substance.
10. SURVIVAL.
Tenant's indemnification obligations as set forth herein shall survive the
expiration or earlier termination of the term of the Lease.
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