LEASE JEFFREY I. WOOLEY as “Landlord” and ASBURY AUTOMOTIVE TAMPA, L.P., a Delaware limited partnership as “Tenant” Demised Premises: Courtesy Toyota of Brandon 9210 Adamo Drive Brandon, FL 33619 LEASE

Section 10.01 Authority. Tenant hereby represents and warrants to Landlord that (i) Tenant is a duly authorized and validly existing Delaware limited partnership; (ii) Tenant has the full right and authority to enter into this Lease; (iii) the person executing this Lease on behalf of Tenant is authorized to do so; and (iv) this Lease constitutes a valid and legally binding obligation of Tenant. Landlord represents and warrants to Tenant that (i) Landlord has the full right and authority to enter into this Lease; and (ii) this Lease constitutes a valid and legally binding obligation of Landlord.

 

Section 10.02 Ownership and Title Exceptions. Landlord represents, warrants and covenants that (i) Landlord is the fee owner of the Demised Premises, subject to no title exceptions other than the “Permitted Title Exceptions” listed on Exhibit B and (ii) Landlord will protect and defend Tenant's rights and leasehold estate created by this Lease against all claims and demands other than those arising out of the Permitted Title Exceptions. Landlord agrees not to (y) amend, consent to the amendment of, or grant any consent or approval under any document that constitutes a Permitted Title Exception or (z) encumber the Demised Premises with any new title exceptions (other than a Fee Mortgage or as requested or approved by Tenant).

 

Section 10.03 Title Insurance Policy. Landlord will provide such documents and documentation as the title insurance company issuing a title insurance policy in favor of Tenant (the “Title Policy”) may reasonably require in order to insure Tenant's leasehold estate, subject to no exceptions other than the Permitted Title Exceptions. The premium and other costs (e.g., search fees) in connection with the Title Policy shall be paid one-half by Landlord and one-half by Tenant. Tenant shall be responsible for the cost of the Survey of the Demised Premises.

 

 

Section 11.01 Tenant Default. The following shall constitute a “Default” under this Lease: (i) if Tenant shall fail to pay any Base Rent or any Additional Rent when due under this Lease and such failure is not cured within ten (10) days after written notice thereof by Landlord to Tenant of the failure, or (ii) if Tenant fails to perform or comply with any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice by L andlord to Tenant of the failure; provided that if the failure cannot reasonably be cured within thirty (30) days and Tenant commences the cure within the thirty (30) day period, the thirty (30) day period shall be extended for such additional time as is required to cure the failure using due diligence and commercially reasonable efforts.

 

Section 11.02 Landlord Remedies. In the event of a Default, Landlord may, at any time thereafter while the Default is outstanding:

 

(a)terminate this Lease and Landlord, its agents or representatives, may reenter and retake the Demised Premises and Landlord may recover from Tenant all Rent due (prorated to the date of termination) together with all costs and expenses incurred to place the Demised Premises in the condition that Tenant is required to deliver the Demised Premises to Landlord upon the expiration of the Lease Term; or

 

(b)retake possession of the Premises wit hout terminating the Lease and use commercially reasonable efforts to relet the Demised Premises in whole or in part, altering, changing or subdividing same as in its reasonable judgment may accomplish the best rental results, at such rental reasonably approximating a fair market rental and upon such terms and for such length of time (whether less or

greater than the unexpired portion of the Lease Term), as Landlord may reasonably provide, and Tenant shall be liable to Landlord for the deficiency between the Rent provided for herein and the r ental collected by Landlord for the period of such reletting, not exceeding, however, the balance of the Lease Term (after deducting therefrom the amortization over the period of the reletting of the reasonable cost of such reletting, including brokerage fees and legal fees in a reasonable amount); or

(c)exercise any other right or remedy in addition to and not inconsistent with the foregoing as is available to Landlord under Florida law.

Section 11.04 Bankruptcy. If (i) Tenant files a petition for bankruptcy, or (ii) any creditor files a petition for bankruptcy of Tenant or if a trustee shall be appointed for all or substantially all of the business or assets of Tenant, and if such filing or appointment has not been vacated or withdrawn within ninety (90) days thereafter, or (iii) if a general assignment is made by Tenant for the benefit of creditors, or (iv) a receiver is appointed to operate the Demised Premises; or (iv) this Lease and the Demised Premises is seized by creditors by authority of any attachment or execution proceedings, Landlord may, at its option in any of such events, on ten (10) days' notice to Tenant, if such action is not vacated or withdrawn within such ten (10) day period, immediately recapture and take possession of the D emised Premises and terminate this Lease pursuant to process of law and exercise all rights and remedies that Landlord has in the event of a Default hereunder.

 

Section 11.05 Attorneys' Fees. In the event of any litigation arising out of this Lease or the Landlord/Tenant relationship created by this Lease, the prevailing party in any such litigation shall be entitled to recover all reasonable costs, charges and expenses incurred in connection therewith, including reasonable attorneys' fees.

 

Section 11.06 Late Fee. If any sum due under this Lease is not paid within ten (10) days of its due date, an administrative late fee (the “Late Fee”) equal to four percent (4%) of the amount past due shall also be immediately due and payable.

 

Section 11.07 Default Interest. Interest, at the Default Rate (defined below), shall accrue on any amount due and owing from either Landlord or Tenant to the other under this Lease, that is not paid within ten (10) days after notice from the party entitled to payment to the other that the amount is past due (which notice may be a the notice otherwise provided for under this Lease). Following such ten (10) day period, interest, at the Default Rate, shall accrue, beginning retroactively as of the due date, on any amount remaining unpaid until paid. The “Default Rate” is an annual interest rate equal to the lesser of (a) the maximum rate permitted by law, or (b) the greater of (y) Prime Rate of interest (or the avera ge thereof, if more than one) as published by the Wall Street Journal on the date such payment was due plus five percent (5%), and (z) twelve percent (12%).

 

Section 11.08 Waiver of Jury Trial. Landlord and Tenant waive and agree not to seek trial by jury in any action relating to or arising out of this Lease or the Landlord/Tenant relationship created under this Lease.

 

Section 12.01 Reserved Access Right. Landlord and its designees shall have the right, with reasonable prior notice to Tenant, to enter upon the Demised Premises during times reasonably agreed upon by Landlord an d Tenant to (i) inspect the Demised Premises, (ii) investigate Tenant's compliance with the terms of this Lease, (iii) in connection with its obligations under the Consent Order or as otherwise required

to fulfill its obligations under Article XX (Environmental Matters), or (iv) during the period commencing one (1) year prior to the end of the Lease Term, to show the Demised Premises to prospective tenants. At Tenant's option Landlord or its designee shall be accompanied by an employee of Tenant while on the Demised Premises.

Section 12.02 Access Conditions. Any entry by Landlord onto the Demised Premises shall be subject to the following additional conditions: (i) Landlord's entry (and any work within the Demised Premises) shall be performed (except to the extent required by emergency circumstances) in a manner so as to minimize any adverse impact on Tenant's business operations; (ii) Landlord shall promptly (i.e., as quickly as possible using all commercially reasonable efforts) repair any damage to the Demised Premises or Tenant's Personal Property caused by its entry or work to Tenant's reasonable satisfaction; and (iii) Landlord shall otherwise use all commercially reasonable efforts to conduct any entry and perform any work in a manner to minimize any adverse impact to the Demised Premises or Tenant's use and enjoyment of the Demised Premises.

 

 

Section 13.01 Ownership of Improvements. All Improvements constructed by Tenant upon the Land, and any Alterations to the Improvements shall be and remain the property of Tenant throughout the Lease Term, including any Renewal Periods. Upon the expiration of the Lease Term or earlier termination of this Lease, all such Improvements, exclusive of Tenant's Property (as defined below) shall, without the need for any further instrument, become the property of Landlord.

 

Section 13.02 Tenant's Property. All trade fixtures, equipment, inventory, furniture, signage (but not any monument structure on which the signage is located) and other personal property (“Tenant's Property”) shall be and remain the property of Tenant both throughout the Lease Term and upon the expiration or earlier termination of this Lease. As used in the definition of Tenant's Property, “trade fixtures” means fixtures used in connection with the conduct of business at the Demised Premises which are attached to the Improvements, but only in a manner such that they can be removed without damage to the Improvements, other than minor or cosmetic damage. Tenant shall be responsible to repair any damage to the Demised Premises caused by the removal of Tenant's Property, including, but not limited to Tenant's trade fixtures. Any of Tenant's Property remaining at the Demised Premises for more than thirty (30) days following the expiration or earlier termination of this Lease shall be deemed abandoned by Tenant and Landlord may dispose of such abandoned property as Landlord deems appropriate without any accounting to Tenant. Tenant's Property shall not, however, include (i) any equipment or fixtures which are part of the base building systems serving the Improvements, such as, but not limited to, roof top HVAC Units, plumbing fixtures and lighting fixtures (other than supplemental or specialty lighting fixtures and bulbs) or (ii) floor and wall covering affixed to the floor or walls, such as, but not limited to, carpeting, tile and paneling.

 

 

Section 14.01 Right to Assign and Sublease. Tenant may not assign this Lease or sublet the Demised Premises, without the consent of Landlord; except that Tenant may assign this Lease or sublet all or any part of the Demised Premises without the consent of Landlord (I) to any “Affiliate” (as defined below) or (II) in connection with a sale of the automobile dealership located at the Demised Premises. Any assignment or sublease (with or without Landlord's consent) shall be subject to the following conditions: (a) Tenant shall remain liable for the performance of the terms, covenants and conditions of this Lease; and (b)Tenant shall deliver a copy of the effective instrument (which may have the financial terms redacted) to Landlord either prior to or immediately subsequent to the date of the subject action (except that Tenant shall not be required

to provide Landlord with any sublease to any Affiliate); and (c) the use and possession of the Demised Premises by the assignee of this Lease or subtenant or other occupant of the Demised Premises or any part thereof shall be subject to all the terms, conditions and conditions of this Lease.

 

 

Section 15.01 Fee Mortgage. Landlord shall have the right at any time during the Lease Term, without the consent of Tenant, to subject its fee interest in the Demised Premises, or any part thereof, but not any property of Tenant, to any one or more mortgages, deeds of trust, deeds to secure debt or similar security instrument (as it may be renewed, modified, consolidated, replaced, or extended a "Fee Mortgage"). The owner or holder of any Fee Mortgage as to which Tenant has received written notice shall be referred to as the "Fee Mortgagee". This Lease (including, without limitation, Tenant's leasehold estate and other rights hereunder) shall not be subject or subordinate to any Fee Mortgage except pursuant to the terms of a Subordination, Non-Disturbance and Attornment Agreement (an “SNDA”) to be entered into between Landlord, Tenant and the holder of the Fee Mortgage and in a form acceptable to all parties. The form of SNDA attached to this Lease as Exhibit D is acceptable to Landlord and Tenant.

 

Section 15.02 Existing Fee Mortgage. Landlord represents and warrants to Tenant that the Demised Premises is not subject to any Fee Mortgage.

 

Section 15.03 Leasehold Mortgages. Tenant shall have the right at any time during the Lease Term, without the consent of Landlord, to subject this Lease and the leasehold interest in the Demised Premises, or any part thereof, but not any property of Landlord, to a leasehold mortgage, deeds of trust, deeds to secure debt or similar security instrument (as it may be renewed, modified, consolidated, replaced, or extended a "Leasehold Mortgage"); provided that there may only be one Leasehold Mortgage at any one time. The owner or holder of any Leasehold Mortgage as to which Landlord has received written notice shall be referred to as the "Leasehold Mortgagee". In the event of a sale/lease-back transaction (a "Sale Leaseback Transaction") of which the Landlord has been provided notice (pursuant to which Tenant becomes a sub-tenant), the “sub-landlord” (also the Tenant hereunder) shall have the rights provided to a Leasehold Mortgagee under Section 15.04 below.

 

Section 15.04 Rights of Leasehold Mortgagee. Any Leasehold Mortgagee shall have the following rights, provided that (a) Landl ord has received notice of the name and notice address of the Leasehold Mortgagee or its servicing agent, and (b) a copy of the Leasehold Mortgage has been delivered to Landlord:

 

a)    Landlord will give the Leasehold Mortgagee a copy of any notice, demand or other communication from Landlord to Tenant alleging any default or failure on the part of Tenant or exercising any right or remedy under this Lease simultaneously with the giving of the notice to Tenant. No exercise by Landlord of any right or remedy with respect to any default or failure on the part of Tenant shall be permitted or effective un til the notice provided for in the Paragraph (i) has been given and the cure period provided for in Paragraph (b) below has expired with the default or failure still uncured.

 

b)    Following receipt of the notice required under Paragraph (i) above, the Leasehold M ortgagee shall have the following cure period to cure the default or failure: (i) twenty (20) days if the default or failure is a failure to pay Base Rent or Real Estate Taxes and (b) thirty (30) days for any other default or failure, provided that if the default or failure cannot reasonably be cured within thirty (30) days and the Leasehold Mortgagee commences the cure within said thirty (30) day period, the thirty (30) day period shall be extended for such additional time as is required to cure the failure using due diligence and commercially reasonable efforts, which shall include such time as it necessary for the Leasehold Mortgagee to take possession of the Demised Premises pursuant to the Leasehold Mortgage, so long as (x) Base Rent and Real Estate Taxes remain current, (y) no enforcement action is being pursued against Landlord as a result of any violation of Laws with respect to the Demised Premises (or the Leasehold Mortgagee agrees to indemnify Landlord with respect thereto), and (z) the Leasehold Mortgagee shall commence and pursue in good faith obtaining possession of the Demised Premises. The Leasehold Mortgagee shall have the right but in no event the obligation to cure any default or failure under this Lease. The Leasehold Mortgagee may also abandon any cure or action for possession once commenced without being deemed to have assumed any obligation in favor of Landlord.

 

c)    Landlord and Tenant shall not agree to cancel, terminate or amend this Lease without the consent of the Leasehold Mortgagee. Any cancellation, termination or amendment of this Lea se not consented to by the Leasehold Mortgagee as required by this Section may, at the option of the Leasehold Mortgagee, be voided by the Leasehold Mortgagee upon it or a Leasehold Mortgagee Successor becoming the Tenant hereunder. As used in this Paragraph a “Leasehold Mortgagee Successor” includes any other party who may become the Tenant hereunder pursuant to the exercise of any right or remedy under the Leasehold Mortgage or by assignment in lieu thereof.

 

(h)    If Tenant shall fail to exercise any Renewal Option, Landlord shall notify the Leasehold Mortgagee of such failure, and from receipt of the notice, the Leasehold Mortgagee shall gave a period of thirty (30) days to cause the Tenant to exercise such Renewal Option.

 

(i)    Tenant shall not be deemed to be acting unreasonably in not providing any consent or approval under this Lease, if the Leasehold Mortgagee objects to Tenant proving such consent or approval.

 

(j)    Each Leasehold Mortgagee shall be deemed an intended third party beneficiary of this Article as it relates to Leasehold Mortgages.

 

Section 15.05 No Subordination of Fee. Nothing in this Article is intended to give Tenant any right, power or authority to encumber Landlord's fee interest in the Demised Premises and no Leasehold Mortgage shall encumber Landlord's fee interest in the Demised Premises.

 

Section 15.05 Certificates. Each of Tenant and Landlord shall, within twenty (20) days of the request of the other and without char ge, at any time and from time to time, for reliance by the requesting party and any designated interested third party, deliver a duly executed and acknowledged instrument certifying: (i) this Lease is unmodified and in full force and effect, or if there has been any modification, that this Lease is in full force and effect as modified and stating any such modification; (ii) the date to which Base Rent, Real Estate Taxes and Additional Rent have been paid; (iii) whether or not there are then existing any known claim against the requesting party under the Lease or defenses to the enforcement of the Lease by the requesting party; and (iv) such other reasonably ascertaining factual matters relating to the Lease or the Demised Premises as the requesting party may reasonably request, but excluding information reasonably deemed confidential or proprietary by the responding party.

 

 

Section 16.01    Brokers Recognized. Landlord and Tenant each represents that it has dealt with no broker (or other par ty who might claim a commission or similar fee) in connection with this Lease.

 

Section 16.02    Indemnification. Landlord shall defend, indemnify and hold harmless Tenant from and against any claims, liabilities, damages, costs or expenses (including attorneys' fees) arising out of any claims or demands for brokerage commissions or similar fee otherwise arising out of Landlord's actual or alleged commitments to or dealings with the claiming party. Tenant shall defend, indemnify and hold harmless Land lord from and against any claims, liabilities, damages, costs or expenses (including attorneys' fees) arising out of any claims or demands for brokerage commissions or similar fee arising out of Tenant's actual or alleged commitments to or dealings with the claiming party.

 

 

Section 17.01 Method of Notice. Any notice, demand, request, consent, approval or other communication by and between Landlord and Tenant (each a "Notice") required or otherwise made under this Lease shall be in writing and given (i) by hand delivery, with a confirmation evidencing the place where and the person to whom delivered; (ii) by registered or certified mail, return receipt requested, or (iii) by a nationally recognized overnight courier service with the ability to confirm delivery, addressed as follows:

 

 

Section 17.02 Notice Given. Notice given in accordance with this Section shall be deemed to be given and received on the earlier of (i) the day actually received, or (ii) the day receipt is refused by the addressee, or (iii) the date of attempted delivery, if delivery was not possible because the address is no longer valid and an updated address has not been provided (and is not otherwise readily available) to the party giving notice.

 

Section 17.03 Change of Address. A party's Notice address(es) set out above may be changed by Notice to the other party given in accordance with this Article; provided that a party may not have more than three (3) address to which each Notice must be sent and all such Notice addresses must be in the continental United States.

 

Section 17.04 Informal Communications. While Landlord and Tenant may communicate by methods other than as set out in Section 17.01 (e.g., by telephone, internet posting or e-mail), no such communication shall constitute proper Notice under this Lease.

 

 

Section 18.01 Entire Agreement and Amendments. This Lease contains the entire agreement

between Landlord and Tenant concerning the Demised Premises, and all prior negotiations, understandings, and representat ions, either oral or written, between them are merged into and superseded by this Lease. This Lease supersedes and replaces the Existing Lease. No amendment to this Lease shall be binding upon Landlord or Tenant unless in writing and signed by both Landlord and Tenant, and no waiver, approval or consent under this Lease shall be binding upon Landlord or Tenant unless in writing and signed by the party against whom enforcement is sought.

 

Section 18.02 No Partnership or Agency. Nothing contained in this Lease shall be construed to create the relationship of principal and agent, partnership, joint venture or any other relationship between the Landlord and Tenant other than the relationship of landlord and tenant.

 

Section 18.03 No Personal Liability. Nothing contained in this Lease is intended to impose any personal liability upon the individuals who are partners, members, managers, agents, stockholders, officers or directors of the entities that are the Landlord and Tenant under this Lease.

 

Section 18.04 Captions. The captions appearing in this Lease are inserted for convenient reference only, they are not intended to limit or expand the scope or interpretation of the Articles or Sections to which they relate.

 

Section 18.05 Applicable Law. This Lease shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida.

 

Section 18.06 Calculation of Time Periods. If the date for the performance of any obligation under this Lease, or the date on which any period provided for hereunder expires, is a Saturday, Sunday or legal holiday, the date or expiration of the period shall be extended to the next day that is not a Saturday, Sunday or legal holiday.

 

Section 18.07 Force Majeure. If either party shall be prevented or delayed from punctually performing any obligation (other than the payment of money) or satisfying any condition by the date required under this Lease (a “Performance Deadline”) by any strike, lockout, labor dispute, inability to obtain labor or materials or reasonable substitutes therefor, domestic or international terrorism, fire, earthquake, hurricane or other Casualty, unusual adverse weather, riot or civil unrest, a Taking or other governmental action, regu lation or control, insurrection, sabotage, or any other similar condition not created by but beyond the reasonable control of the affected party (each, a “Force Majeure Event”), then the Performance Deadline shall be extended by the delay caused by the Force Majeure Event. Financial inability to perform shall in no event constitute a Force Majeure Event.

 

Section 18.08 No Waiver. The failure of Landlord or Tenant to insist upon strict performa nce of any term, covenant or condition of this Lease or any delay in the enforcement of any term, covenant or condition of this Lease by Landlord or Tenant following a failure of the other party to comply therewith, shall not be deemed a waiver of any continuing or future right to enforce such term, covenant or condition.

 

Section 18.09 Consents and Approvals. Except as may otherwise be expressly provided for by the terms of this Lease, whenever Landlord's consent or approval is required or requested under or in connection with this Lease, Landlord agrees (unless otherwise expre ssly provided for in this Lease): (i) that such consent or approval shall not be unreasonably withheld, delayed or conditioned, (ii) that any refusal to provide any consent or approval must include the specific reasons as to why the consent or approval is being withheld, (iii) that Landlord shall notify Tenant of its response to any request for any consent or approval within ten (10) days of a request therefor, and (iv) that a failure to respond within the required ten (10) day period shall be deemed Landlord granting the requested consent or approval, but only if the notice specifically references

the 10-day period provided for in this Section and that a failure to respond constitutes Landlord's consent or approval.

 

Section 18.10 Nature of Document. This Lease is a negotiated document between two sophisticated parties negotiating with the aid of legal counsel and should not be construed more strictly against either Landlord or Tenant.

 

 

Section 18.12 Recordation of Memorandum of Lease. Concurrently with the execution of this Lease or thereafter, upon ten (10) days of a request by Landlord or Tenant, the parties will execute and deliver (witnessed and notarized, as applicable) for recordation by and at the cost and expense of the requesting party a Memorandum of Lease in the form attached as Exhibit C (the “Memorandum of Lease”). Upon the expiration of the Lease Term or earlier termination of this Lease, Tenant will, within ten (10) days of a request from Landlord, execute a release of the Memorandum of Lease sufficient to discharge the Memorandum of Lease as an encumbrance upon the Demised Premises.

 

 

Section 19.01 Grant of Purchase Option. Landlord grants to Tenant the option (the “Purchase Option”) to purchase the Demised Premises at any time during the Lease Term on and subject to the terms and conditions of this Article.

 

Section 19.02 Purchase Price. The purchase price for the Demised Premises (the “Purchase Price”) shall be Sixteen Million Dollars ($16,000,000); provided that if the Base Rent is adjusted under Section 3.03, the Purchase Price shall be similarly adjusted by an equivalent percentage increase (e.g., if the Base Rent is increase by 2% the Purchase Price shall also be increased by 2%).

 

Section 19.03 Exercise of Right. Tenant may exercise the Purchase Option by written notice to Landlord (the “Exercise Notice”) given any time during the Option Exercise Period (as defined below), specifying that Tenant has elected to exercise its Purchase Option and a proposed date for the closing of the purchase and sale (the “Closing”), which shall be at least thirty (30) days, but no more than sixty (60) days following the Exercise Notice. Landlord and Tenant will fully cooperate and use all commercially reasonable efforts to consummate the Closing on the date proposed by Tenant or as soon thereafter is reasonably possible. The “Option Exercise Period” is the sixty (60) days of the sixth (6^th) Lease Year, but only if at the time the Demised Premises has been Adequately Remediated (as defined in Section 20.01), and (ii) anytime after the tenth (10^th) Lease Year; it is the parties intent that for the Exercise Notice to be valid it must be given within the Option Exercise Period.

 

Section 19.04 Title and Survey. On the date of the Closing (the “Closing Date”) Landlord will convey fee simple title to the Demised Premises to Tenant (or Tenant's designated Affiliate) by Special

Warranty Deed (the “Deed”) subject only to the Permitted Title Exceptions and matters arising by, though or under Tenant. Landlord shall be responsible for discharging any Fee Mortgage and any liens arising by, though or under Landlord as of the Closing. Tenant shall be responsible to obtain any survey it deems necessary or desirable. Landlord and Tenant will each deliver to the Title Insurance Company selected by Tenant to issue its Title Insurance Policy (the “Title Company”) such customary authority documents, title affidavits and other documents as the Title Company may reasonably request.

 

Section 19.05 Termination of Lease. As part of the Closing, Landlord and Tenant will execute a termination of this Lease (effective as of the date of Closing) and prorate Rent as of the date of Closing (the “Lease Termination Agreement”).

 

Section 19.06 Closing Documents. In connection with the Closing, the parties will execute and deliver the documents provided for in this Article and other customary conveyance documents, including: the Deed, the Lease Termination Agreement, a Seller's Title Affidavit, a FIRPTA Affidavit, a Quitclaim Bill of Sale (as to any personal property that may be owned by Landlord) and a Closing Statement. In the event that Landlord still has obligations under the Consent Order (which are not assumed by the grantee/transferee as part of Closing) then the parties will also enter into, to the extent required to fulfill the obligations under the Consent Order, (i) such documents as may be required to implement or effectuate any legal and engineering controls under Section 20.04 (with any applicable Restriction Agreement {as defined in Section 19.09 below} to be recorded before any purchase money mortgage) and (ii) an access agreement providing Landlord access to complete the obligations under the Consent Order (the access agreement shall contain the access rights and be subject to conditions and an indemnity similar to that provided for in this Lease). All documents shall be prepared by Tenant's counsel and subject to the review and approval of Landlord's counsel.

 

Section 19.07 Closing Costs. The standard closing costs, including recording fees, title search fees, title insurance premiums and documentary stamp and other conveyance taxes shall be split between Landlord and Tenant, with each paying one-half (½); except that (a) each party shall pay its own attorneys fees (except as provided for in Section 11.05), (b) Landlord shall be responsible for the cost to obtain any title curative documents to the extent the cure is the responsibility of Landlord under this Article, and (c) Tenant shall be responsible for the cost of any survey which it elects to obtain, as provided for in Section 19.04.

 

Section 19.08 Independent Right and Assignment. The Purchase Option is a right independent from the remainder of the Lease, and neither the exercise of the Purchase Option, nor any failure to exercise or the waiver of the Purchase Option, nor any failure to consummate any closing under this Article will result in a termination of or otherwise affect this Lease or any of Tenant's rights hereunder. The Purchase Right may not, however, be assigned separate from this Lease, except to an Affiliate of Tenant.

 

Section 19.09 Post-Closing Engineering Controls and Mortgage Subordination. In the event that Landlord still has obligations under the Consent Order (which are not assumed by the grantee/transferee as part of Closing), the pa rties will have a continuing obligation to enter into, to the extent required to fulfill the obligations under the Consent Order such documents as may be required to implement or effectuate any legal and engineering controls under Section 20.04. In furtherance of the foregoing, at Landlord's request, Tenant agrees to cause the holder of any mortgage (or other lien) on Demised Premises (which will at that time be owned in fee by Tenant) as well as any then tenants of Tenant (if required under the applicable lease), to join in any deed restriction, restrictive covenant or similar agreement placing restrictions on the Demised Premises arising out of the Landlord's Contamination which is required as part of the legal and engineering controls as provided for in Section 20.04 (a “Restriction Agreement”). The joinder of the mortgage or lien holder(s) and the tenan t(s) shall be for the sole purpose of subordinating the lien of the mortgage, lien or leasehold estate (as applicable) to the Restriction Agreement.

 

 

Section 20.01 Certain Definitions. When used in this Section the following terms have the corresponding meanings:

 

(a)“Adequately Remediated” means that (i) Landlord has been issued a final order or determination (including the expiration of any appeal or contest period) under the Consent Order confirming that all required active soil and groundwater remediation has been completed and the remaining obligations then existing under the Consent Order are limited to groundwater monitoring and reporting, and (ii) Landlord is otherwise in compliance with the Consent Order. The Landlord and Tenant acknowledge that, while all required active remediation to the soil and groundwater will have been performed at the time Adequate Remediation is achieved, achieving Adequate Remediation will not be a guaranty that an Applicable Government Authority will not require additional active remediation at some future date. As the assessment and evaluation of Landlord's Environmental Matters progress, Landlord and Tenant may (but are not required to), by written agreement, agree to a remediation standard as an alternative definition for &l dquo;Adequately Remediated”.

 

(b)“Applicable Governmental Authority” means the State of Florida Department of Environmental Protection and any other state, federal or local district, agency, bureau, department or other regulatory or enforcement authority having jurisdiction.

 

(c)“Claims” means all claims, demands, actions, causes of actions, proceedings, judgments and liabilities.

 

(d)“Consent Order” means the Consent Order (OGC File No. 89-1111) entered into between the State of Florida Department of Environmental Protection (“DEP”), as “Complainant” and JIW Enterprises, Inc. and Landlord, as “Respondents”, with a filing date of September 28, 2009, as it may be supplemented, replaced, superseded, or amended, from time to time, with Tenant's consent. Landlord and Tenant agree to act reasonably and cooperate in connection with any efforts to amend, supplement, replace or supersede the current Consent Order, so long as neither the scope of the matters covered by the Consent Orders nor Landlord's remediation obligations thereunder are reduced and Tenant's Contemplated Redevelopment is not delayed, including, but not limited to, replacing the current Consent Order with a Brownfield Site Rehabilitation Agreement.

 

(e)“Creosote Contamination” means the creosote-type contamination affecting the Land and possibly surrounding lands, including soils, soil vapor, surface water and groundwater, resulting from past wood treating operations on the Land that were discontinued in or around October of 1967 (the “Wood Treating Operations”).

 

(f)“Damages” means all costs, expenses, damages, losses, liabilities, fines and penalties. “Costs” include, but are not limited to, costs of investigation, clean-up and remediation, and consultants' and attorneys' fees.

 

(g)“Environmental Laws” means all federal, state and local civil and criminal laws (including both statutory and common law), ordinan ces, codes, rules, regulations and judicial and administrative decrees and orders currently in effect or which may hereafter be in effect regulating, providing standards or requirements or otherwise imposing obligations or liability in connection with any Hazardous Substance.

 

(h)“Extra Redevelopment Costs” means all reasonably documented costs and expenses reasonably incurred by Tenant in connection with the Contemplated Redevelopment as a result of the existence of any of the Landlord's Environmental Matters. Extra Redevelopment Costs include, but are not limited to, all costs and expenses to obtain or comply with all Environmental Redevelopment Permits (as defined in Section 5.08) and all other costs and expenses incurred for testing and assessment, monitoring wells, soil removal, disposal and replacement, liners and other containment measures and legal (e.g., a restrictive covenant) and engineering controls, as well as any increase in the cost of any elements of the Contemplated Redevelopment, such as foundations, curbing, landscaping, paving or the stormwater management system. Extra Redevelopment Costs do not include costs incurred by Tenant's for consultants (i.e., engineering and legal) either in connection with the Redevelopment Work or to monitor or review the work being performed by Landlord's consultants under or in connection with the Consent Order; provided that Landlord shall make its consultants readily available to Tenant, at Landlord's cost, to provided to Tenant such information and services as Tenant may reasonably request in connection with the Redevelopment Work and Landlord's Environmental Matters. . Extra Redevelopment Costs will, however, include increased architectural or engineering costs in connection with the design or construction of the Improvements with respect to the Contemplated Redevelopment to the extent directly related to Landlord's Environmental Matters.

 

(i)“GE Contamination” means the polychlorinated biphenyl contamination that may impact the Land resulting from the operation of the former General Electric facility located to the west of the Land at 115 Wayne Place. It is anticipated that the GE Contamination will be remediated by GE Energy.

 

(j)“Hazardous Substance” means any substance designated as a “hazardous material&rd quo;, “hazardous waste”, “toxic substance”, “toxic pollutant”, “pollutant” or “contaminate” , or which is otherwise regulated under any federal, state or local law or regulation as a result of it being hazardous or potentially hazardous to persons or the environment. Without intending to limit to general nature of the foregoing, but for clarification only, Hazardous Substances include petroleum and petroleum-derived fuel products such as gasoline.

 

(k)“Landlord's Environmental Matters&r dquo; means the Creosote Contamination and any other Hazardous Substance referenced in or covered by the Consent Order resulting from the Wood Treating Operations.

 

(l)“Tenant's Environmental Matters” means any Hazardous Substance released or utilized by Tenant in connection with the operation of its automobile dealership during the term of the Existing Lease or this Lease.

 

Section 20.02 Compliance with Consent Order. Landlord will proceed with due diligence, consistent with its own business judgment and the advice of Landlord's environment consultants to satisfy the requirements of the Consent Order and to Adequately Remediate the Demised Premises.

 

Section 20.03 Ongoing Operations. Tenant shall operate its business at the Demised Premises in compliance with all applicable Environmental Laws.

 

Section 20.04 Legal and Engineering Controls. Landlord and Tenant agree to fully cooperate with each other to agree upon and implement such legal and engineering controls as may be required under the

Consent Order or for the Contemplated Redevelopment. Legal and engineering controls may include, for example, deed restrictions, restrictive covenants, caps or covers, liners, impervious areas, slurry walls and physical barriers and fences.

 

Section 20.05 Information Sharing. Landlord and Tenant agree to provide to the other (i) copies of all environmental reports and audit s which they obtain relative to the Demised Premises within ten (10) days of receipt; (ii) copies of all correspondence (including electronic communications) to any Applicable Governmental Authority, simultaneously with its transmittal to the Applicable Governmental Authority, (iii) copies of all correspondence (including electronic communications) from any Applicable Governmental Authority, within five (5) days of its receipt. All correspondence shall be accompanied by all documentation that accompanied the correspondence. Landlord will also promptly respond (or direct its environmental consultants to promptly respond) to requests for information from Tenant or its environmental consultants.

 

Section 20.06 Indemnity by Landlord. Landlord agrees to indemnify, defend (in a diligent manner with counsel reasonably acceptable to Tenant) and hold Tenant harmless from and against all Claims and Damages which Tenant may incur to the extent resulting from the Landlord's Environmental Matters. As used in this Section, Tenant includes Tenant's subtenants and affiliates and all their respective partners, officers, directors, employees and interest holders.

 

Section 20.07 Indemnity by Tenant. Tenant agrees to indemnify, defend (in a diligent manner with counsel reasonably acceptable to Tenant) and hold Landlord harmless from and against all Claims and Damages which Landlord may incur to the extent resulting from the Tenant's Environmental Matters. As used in this Section, Landlord includes Landlord's affiliates and all their respective partners, officers, directors, employees and interest holders.

 

Section 20.08 GE Contamination. The GE Contamination is not included in either Landlord's Environmental Matters or Tenant's Environ mental Matters, but Landlord and its environmental consultants will, at Landlord's cost, continue to monitor the related remediation activities and keep Tenant informed of the status of the remediation as provided for in Section 20.04.

 

Section 20.09 Reimbursement of Extra Redevelopment Costs.

 

(a)Tenant will use commercially reasonable efforts, to the extent not inconsistent with Tenant's valid business considerations and the requirements of the Automobile Manufacturer, to layout (i.e., building placement), design and construct the Contemplated Redevelopment in a manner to minimize the Extra Redevelopment Costs.

 

(b)As to work which will result in Extra Redevelopment Costs and which is not an integral part of Tenant's construction (i.e., soil removal as compared to building foundation work), Tenant will provide Landlord the opportunity to itself perform the work in lieu of reimbursing Tenant the cost of performing the work; provided that the performance of t he work by Landlord would not have the effect of delaying the completion of the Contemplated Redevelopment.

 

(c)Without intending to limit the scope of Section 20.06, Landlord agrees, within twenty (20) days of a demand from Tenant (from time to time) to reimburse Tenant for all Extra Redevelopment Costs. Each demand for reimbursement shall be accompanied by reasonable documentation of the Extra Redevelopment Costs incurred by Tenant. If Landlord fails to reimburse Tenant for any Extra Redevelopment Costs during the required 20-day period Tenant may offset the Extra Redevelopment Costs, together with applicable interest, against the Base Rent due under this Lease, in accordance

with the procedure set out in Paragraph (d) below.

 

(d)Prior to offsetting any amount against the Base Rent due under this Lease under Paragraph (c) above, Tenant shall give written notice to Landlord (the "Offset Notice"), which shall include the amount of the offset claimed and the basis for the offset claimed (including, to the extent not previously provided, reasonable documentation of the Extra Redevelopment Costs incurred) and Landlord shall have the right to dispute the offset as provided for in this Paragraph. To contest an offset Landlord must, within ten (10) days of the Offset Notice, provide notice to Tenant that Landlord disputes all or a portion of the offset (the "Offset Dispute Notice"). Landlord may only give the Offset Dispute Notice if Landlord, in good faith, believes that Tenant is not entitled to all or any part of the offset claimed in the Offset Notice. Any Offset Dispute Notice shall outline the specific items of the offset objected to by Landlord (the "Disputed Charges") and the specific reasons for the objection. To be effective, the Offset Dispute Notice must be accompanied by Landlord's payment of the portion of the offset not disputed or include an authorization for Tenant to offset against Base Rent the portion of the offset not disputed. The failure of Landlord to provide a timely Offset Dispute Notice and the continuation of such failure for ten (10) additional days following an additional notice from Tenant stating that Landlord's Offset Dispute Notice was not given when required under this Lease, shall be deemed Landlord's consent to the offset set out in the Offset Notice. As to any Disputed Charges, the parties shall, within the thirty (30) day period following the Offset Dispute Notice, meet in person and attempt to reach agreement upon the amount owed. During the dispute resolution period, includ ing any arbitration, Tenant shall, subject to the other terms of this Lease, continue to pay the Base Rent otherwise due under this Lease. If the parties are unable to reach an agreement within the thirty (30) day period, the matter shall be settled by binding arbitration by an arbitrator agreed upon by the parties or, if the parties are unable to agree, by a neutral (i.e. having no prior association with either party) arbitrator appointed by the American Arbitration Association or local arbitration association. Except as otherwise approved by Landlord and Tenant, any arbitrator shall be a licensed attorney with substantial relevant experience with environmental and commercial matters. Landlord and Tenant agree to use diligent good faith efforts to have the arbitrator appointed within sixty (60) days following the Offset Dispute Notice and to complete the arbitration within one hundred twenty (120) days following the Offset Dispute Notice. All costs of the arbitration (including the fees of the arbitrato r, but not attorneys' fees) shall be paid by the non-prevailing party (as determined by the arbitrator). If the arbitrator does not make a determination that one party, or the other, is a "non-prevailing party", then the costs of the arbitration shall be paid half by Tenant and half by Landlord. The amount finally agreed upon or found to be due Tenant by arbitration shall be paid within ten (10) business days of such agreement or finding, failing which Tenant may thereafter begin to offset the Base Rent due under this Lease until the entire amount due has been recovered.

 

Section 20.10 Survival. This Article XX shall survive the expiration or earlier termination of this Lease, including, but not limited to, any termination as a result of the acquisition of the Demised Premises by Tenant under Article XIX.

 

 

Section 21.01 Guaranty of Lease. The obligation of Tenant to pay Base Rent and Real Estate Taxes shall be guaranteed by Asbury Automotive Group, Inc., a Delaware corporation (the “Guarantor”) by Guaranty of Lease in the form of Exhibit F (the “Guaranty”). The Guaranty shall be delivered to Landlord by Guarantor concurrently with the delivery to Landlord of this Lease by Tenant.

 

 

Section 22.01 Exhibits. The following Exhibits have been agreed upon by Landlord and Tenant,

and are attached to and a part of this Lease:

 

Exhibit A -     Legal Description of the Land

Exhibit B -    Permitted Title Exceptions

Exhibit C -     Memorandum of Lease

Exhibit D -     Approved form of SNDA

Exhibit E -     Termination of Lease

Exhibit F -     Guaranty of Lease

 

 

 

IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first above written.