Exhibit 10.1
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT ("Amendment") is made and effective as of
the 1st day of June, 2003 by and between ESA MANAGEMENT, INC. ("ESA"), and
NATIONSRENT, INC., a Delaware corporation ("NationsRent").
RECITALS
A. Whereas, AutoNation, Inc. a Delaware corporation ("AutoNation"),
formerly known as Republic Industries, Inc., as tenant, entered into that
certain Lease Agreement dated January 15, 1996, with ELO Associates, Ltd., as
landlord (the "Master Landlord"), whereby AutoNation leased space on the 12th,
14th and 9th 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, Fourth Amendment to Lease and Termination of Sublease Agreement dated
October 29, 1999 (collectively, the Master Lease");
B. Whereas, under a Lease Assignment made as of the 3rd day of
December, 1997 ("Sublease"), ESA succeeded to the interest of Republic
Industries Inc., as holder of the tenant's interest to the 12th floor of the
Las Olas Centre I (hereinafter the "Premises");
C. Whereas, ESA sub-subleased the entire 12th Floor to NationsRent
pursuant to Agreement dated September 21, 2001 ("ESA/NRI Agreement");
D. Whereas, NationsRent filed for protection under Chapter 11 of the
United States Bankruptcy Code, and its case is currently pending before the
Honorable Peter J. Walsh in the United States Bankruptcy Court for the District
of Delaware (the "Bankruptcy Court");
E. Whereas, the parties desire to enter into an amendment to the
ESA/NRI Agreement whereby the term of the ESA/NRI Agreement is extended, the
rent and other charges are modified and to incorporate other terms and
conditions as more particularly described herein; and
F. Whereas, NationsRent would like to assume the ESA/NRI Agreement
as amended by this Amendment.
NOW, THEREFORE, based upon the foregoing mutual premises and the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the adequacy,
sufficiency and receipt of which are hereby acknowledged, it is agreed as
follows:
1. Capitalized terms in this Amendment shall have the same meaning
as such capitalized terms have in the ESA/NRI Agreement, unless otherwise noted
in this Amendment.
2. The parties agree that the term of the ESA/NRI Agreement shall be
amended such that the expiration date of the ESA/NRI Agreement shall now be
December 12, 2006.
NationsRent shall have no options to renew the ESA/NRI Agreement.
Notwithstanding anything to the contrary in the Sublease, ESA/NRI Agreement or
the Master Lease, effective on the first day of the month following the date
NationsRent delivers the Bankruptcy Court Approval (as defined in Section 8
below) to ESA (such date hereinafter referred to as the "Rent Adjustment
Commencement Date") the following Fixed Rent shall be paid by Tenant:
Rent Adjustment Commencement Date to
December 31, 2003: $37,255.00 per month
January 1, 2004 to December 31, 2004: $39,862.85 per month
January 1, 2005 to December 31, 2005: $40,980.50 per month
January 1, 2006 to December 12, 2006: $44,706.00 per month
The Fixed Rent described above shall be payable in equal monthly
installments set forth above (with the exception of overtime HVAC charges for
the Premises which shall be paid as referenced below). The parties intend that
the sum for Fixed Rent shall be full service rent which amount already includes
(and NationsRent shall not be required to pay anything additional for) Base
Rent, Additional Rent, Parking Rent, or other charges for parking spaces,
utilities, janitorial or any other costs or charges that were payable under the
Sublease, ESA/NRI Agreement and Master Lease including without limitation,
operating expenses, insurance, parking spaces, real estate taxes and
assessments. Notwithstanding the foregoing, NationsRent shall be obligated to
pay any sales tax on the Fixed Rent at a fixed rate of six percent (6%)
throughout the term of the ESA/NRI Agreement (as said term is amended by this
Amendment). Notwithstanding anything to the contrary in the Sublease, ESA/NRI
Agreement or the Master Lease, throughout the Term (as same is extended herein),
there shall not be any adjustments to Fixed Rent or any other increases
whatsoever under the ESA/NRI Agreement.
To the extent that AutoNation or ESA is billed by Master Landlord for
overtime air conditioning and heating costs that relate to the Premises,
NationsRent shall be reimburse ESA for such charges within thirty (30) days of
receipt of an invoice for same.
The reduction in the Fixed Rent as set forth in this Section 2 is being
offered to NationsRent by ESA as a discount to reward the prompt and continued
payments under the ESA/NRI Agreement. If NationsRent defaults under any of its
obligations under the ESA/NRI Agreement, as amended hereby, and if such default
remains uncured beyond any applicable notice and cure periods, then (a) the
Fixed Rent discount set forth herein shall be null and void, and (b) commencing
on the first day of the month following such uncured default, NationsRent shall
thereafter be obligated to pay the full amount of Fixed Rent as set forth in the
original ESA/NRI Agreement as if this Amendment had never been executed, and (c)
ESA shall have all rights and remedies available to it at law or equity as a
result of such uncured default.
3. The parties acknowledge that the ESA/NRI Agreement is in full
force and effect and that, to the best of each party's knowledge, there are no
defaults thereunder nor does any state of facts exist which with the passage of
time or the giving of notice, or both, would constitute a default by either
party under the ESA/NRI Agreement. Each party represents, to the best of its
knowledge, that there is no defense, counterclaim or offset, or other claim
presently existing or arising out of the ESA/NRI Agreement. Subject to Section 8
below, each party warrants and represents to the other that it has full right
and authority to enter into this Amendment,
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and that the person signing the Amendment on behalf of each party is duly
authorized by all necessary corporate and legal action to do so.
4. ESA and NationsRent 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 Amendment alleging an agreement by ESA
or NationsRent, as the case may be.
5. The ESA/NRI Agreement, as modified by this Amendment supersedes
any and all other agreements regarding the ESA/NRI Agreement, either oral or in
writing; this Amendment together with the ESA/NRI Agreement contains all of the
covenants and agreements between the parties with respect to the Premises; and
each party to this Amendment acknowledges and agrees that no representations,
inducements, promises or statements, written, oral or implied, have been made by
any party or anyone acting on behalf of any party which are not embodied herein,
or in the ESA/NRI Agreement, and each party agrees that no agreement, covenant,
representation, inducement, promise or statement not set forth in writing in
either this Amendment or the ESA/NRI Agreement shall be valid or binding.
6. The ESA/NRI Agreement is hereby amended to effectuate the intent
of this Amendment. In the event of any conflict between the terms of the ESA/NRI
Agreement and this Amendment, the terms of this Amendment shall prevail and
control in the interpretation, operation and effect thereof. Except as modified
by this Amendment, the ESA/NRI Agreement is unmodified. This Amendment may be
executed in counterparts, each of which shall be considered an original.
7. All notices to NationsRent shall be sent to the following
addresses:
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:
NationsRent, Inc.
Attn: Joseph H. Izhakoff, Esq.
Executive Vice President and General Counsel
(at same address)
and
Akerman, Senterfitt & Edison, P.A.
Las Olas Centre II, Suite 1600
350 East Las Olas Boulevard
Fort Lauderdale, Florida 33301-4211
Attn: Theresa M. McLaughlin, Esq.
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All notices to ESA shall be sent to the following address:
ESA Management, Inc.
Attn: Development/Legal Department
101 North Pine Street, Suite 200
Spartanburg, South Carolina 29302
8. NationsRent shall immediately, continuously and diligently pursue
obtaining a final order from the Bankruptcy Court approving this Amendment
including without limitation the assumption of the ESA/NRI Agreement, as amended
herein (the "Bankruptcy Court Approval"). Upon receipt of the Bankruptcy Court
Approval, NationsRent shall promptly provide ESA with a copy of the order of the
Bankruptcy Court or other applicable documentation. This Amendment shall not be
effective until NationsRent provides ESA with written evidence that the
Bankruptcy Court has approved the assumption of the ESA/NRI Agreement as amended
herein.
SIGNATURES TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first written above.
WITNESSES: TENANT:
/s/ NATIONSRENT INC.,
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a Delaware corporation
Print Name_____________________
/s/ By: /s/
- ------------------------------- ---------------------------------
Name:_______________________________
Print Name_____________________ Title:______________________________
[CORPORATE SEAL]
WITNESSES: LANDLORD:
/s/ ESA MANAGEMENT, INC.
- -------------------------------
a Delaware corporation
Print Name_____________________
/s/ By: /s/
- ------------------------------- ---------------------------------
Name:_______________________________
Print Name_____________________ Title:______________________________
[CORPORATE SEAL]
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CONSENT OF MASTER LANDLORD:
Master Landlord does hereby consent to the foregoing Amendment. Nothing
contained herein modifies, waives, impairs or affects any of the terms or
conditions of the Master Lease.
IN WITNESS WHEREOF, MASTER LANDLORD HAS DULY EXECUTED THIS INSTRUMENT
AS OF June 1, 2003.
WITNESSES: MASTER LANDLORD:
/s/ ELO ASSOCIATES, LTD., a Florida
- -----------------------------------
limited partnership,
Print Name_________________________
/s/ By: EAST LAS OLAS INVESTORS, a
- -----------------------------------
Florida general partnership,
general partner,
Print Name_________________________ By: SEOLA, LTD., a Florida limited
partnership, operating venturer,
___________________________________
By: SEOLA, INC., a Florida corporation,
general partner.
By: /s/
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Name:__________________________________
Title:_________________________________
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