First Amended And Restated Lease Agreement

Exhibit 10.20

FIRST AMENDED AND RESTATED LEASE

AGREEMENT BETWEEN

JEFFREY I. WOOLEY, AS LANDLORD

AND

ASBURY AUTOMOTIVE TAMPA, L.P.,

AS TENANT

(Hillsborough Avenue Property)


FIRST AMENDED AND RESTATED

LEASE AGREEMENT

(Hillsborough Avenue Property) THIS FIRST AMENDED AND RESTATED LEASE AGREEMENT (the " Lease" ) is made and effective this 17th day of September, 1998, by and between JEFFREY I. WOOLEY, having an address of 10000 Lindelaan, Tampa, Florida 33618 (hereinafter called " Landlord" ), and ASBURY AUTOMOTIVE TAMPA, L.P., a Delaware limited partnership, having an address of 712 Fifth Avenue, 49th Floor, New York, New York 10019 (hereinafter called " Tenant" ).

W I T N E S S E T H : WHEREAS, on or about September 17, 1998, Landlord entered into that certain Courtesy Dealership Lease Agreement (Hillsborough Avenue Property) (the " Courtesy Lease" ) with JIW Enterprises, Inc. and Courtesy Imports of Tampa, Inc. (collectively " Courtesy" ), and

WHEREAS, Courtesy assigned the Courtesy Lease to Tenant, and Landlord and Tenant wish to amend and restate the Courtesy Lease as hereinafter set forth.

NOW, THEREFORE, the Courtesy Lease is hereby amended and restated in its entirety as follows:

ARTICLE ONE

Demised Premises, Term and Construction of Improvements SECTION 1.01. Landlord, for and in consideration of the terms, covenants and conditions herein contained, does hereby demise, lease and let to Tenant, and Tenant does hereby hire and take from Landlord, upon and subject to the terms, covenants and conditions herein contained, the interest of Landlord (other than under this Lease), in the following: ALL of those certain parcels of land and premises with certain improvements located thereon, said land and premises being more particularly described on Exhibit A attached hereto and made a part hereof and collectively called the " Demised Premises" ;

TO HAVE AND TO HOLD the Demised Premises for a term of ten (10) years commencing on September 17, 1998 (the " Commencement Date" ) and expiring at midnight on September 16, 2008 (hereinafter called the " term" ). Provided this Lease is not in default, Tenant may elect to extend the term of this Lease for one (1) additional term of five (5) years (such additional term period being hereinafter referred to as the " Renewal Term" ), in accordance with the terms and conditions of Section 1.02 below.

SECTION 1.02. In the event Tenant elects to extend the term of this Lease as referenced above, the following terms and conditions shall apply:

(i) This Lease must not be in default either at the time of Tenant' s election to renew the term of this Lease or at the time commencement of the Renewal Term; and

(ii) Except as otherwise provided herein, Tenant' s use and occupancy of the Demised Premises during the Renewal Term shall be upon the same terms, covenants and conditions contained herein. All payments on the part of Tenant to be made and all other obligations on the part of Tenant to be performed as provided in this Lease shall continue to be made and performed by Tenant during the Renewal Term;


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(iii) Tenant shall exercise its right to extend the term of this Lease for the Renewal Term by delivering notice of its intent to renew the tern of this Lease to Landlord in writing by certified mail on or before September 16,2007; and

(iv) There shall be no further or additional right to renew this Lease other than as set forth in this Section 1.02. Any termination of this Lease shall terminate the later right of renewal hereunder. ARTICLE TWO

Rent

SECTION 2.01. Tenant covenants and agrees to pay to Landlord, promptly when due, without notice of demand and without deduction or set-off of any amount for any reason whatsoever, a fixed " minimum rent" outlined as follows, together with any applicable sales, use or rent taxes. The " minimum rent" shall be paid according to the following schedule:

(i) Annual minimum rent for the first (1st) year of the initial term of this Lease shall be Six Hundred Seventy-Nine Thousand Five Hundred and No/100ths Dollars ($679,500.00), payable in equal monthly installments of Fifty-Six Thousand Six Hundred Twenty-Five and No/100ths Dollars ($56,625.00) a month, together with applicable taxes. (ii) Commencing with the second (2nd) year of the initial term of this Lease, and at the beginning of each year thereafter during the initial term of this Lease and the Renewal Term, the minimum rent shall be adjusted in accordance with the Consumer Price Index for Urban Wage Earners and Clerical Workers (US. City Average: All Items), issued by the Bureau of Labor Statistics of the U.S. Department of Labor using the year 1982-84 as a base year of 100 (" Index Number" ). At the commencement of the second (2nd) Lease Year (as hereinafter defined), the minimum rent shall be adjusted by multiplying the minimum rent paid in the first (1st) year of this Lease by a fraction, the numerator of which shall be the Index Number for the third (3rd) month preceding the commencement of the second (2nd) Lease Year, and the denominator of which shall be the Index Number for the third (3rd) month preceding the Commencement Date of this Lease. At the commencement of each Lease Year thereafter, including any Lease Year which falls within the Renewal Term (if this Lease is renewed as described herein), the minimum rent shall be adjusted by multiplying the minimum rent paid in the preceding Lease Year by a fraction, the numerator of which shall be the Index Number for the third (3rd) month preceding the commencement of the new Lease Year, and the denominator of which shall be the Index Number for the third (3rd) month preceding the commencement of the preceding Lease Year. Notwithstanding the foregoing, however, in no event shall the minimum rent for any Lease Year be less than one hundred two percent (1 02%) of the minimum rent for the preceding Lease Year or more than one hundred six percent (106%) of the minimum rent for the preceding Lease Year. In the event that the index herein referred to ceases to be published during the term of this Lease, or a substantial change is made in the method of establishing such index, then the determination of the adjustment shall be made with the use of such conversion factor, formula or table as may then be published by the Bureau of Labor Statistics, or if none is available, the parties shall accept comparable statistics on the cost of living in the United States, as shall then be computed and published by any agency of the United States, or if none, by a respected financial periodical selected by Landlord. The term " Lease Year" as used herein shall mean consecutive twelve (12) month periods commencing on the Commencement Date, and on each anniversary of the Commencement Date, during the term of this Lease.


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The minimum rent reserved hereunder shall be payable in equal monthly installments, in advance, on the first (1st) day of each month during the Lease term; provided, however, that upon the execution of this Lease by Tenant, Tenant shall pay to Landlord the installments of minimum rent due for the first month of the initial term of this Lease (together with applicable sales tax, as described below). Tenant shall pay to Landlord, together with the monthly installments of the minimum rent due hereunder, the sales and use tax imposed by the State of Florida on rental payments under commercial leases and any other taxes, impositions or charges which may be payable by Tenant pursuant to the terms of this Lease, including, but not limited to, the terms of Section 3.01 hereof. If the term commences on a date other than the first day of a calendar month or ends on a date other than the last day of a calendar month, monthly rent for the first month of the term or the last month of the term, as the case may be, shall be prorated based upon the ratio that the number of days in the term within such month bears to the total number of days in such month.

SECTION 2.02. All amounts payable under Section 2.01 of this Article, as well as all other amounts payable by Tenant to Landlord under the terms of this Lease, shall be paid at the office of Landlord set forth above, or at such other place as Landlord shall from time to time designate by notice to Tenant, in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment.

SECTION 2.03. In order to secure payment by Tenant of the amounts specified in Section 2.01 of this Article and to secure the performance by Tenant of its duties and obligations under this Lease, Tenant shall upon the execution of this Lease (and in addition to the first month' s rent to be paid to Landlord upon execution of this Lease pursuant to Section 2.01 hereof) deposit with Landlord the sum of Eighty-Eight Thousand and No/100ths Dollars ($88,000.00) in cash (the " Security Deposit" ). The Security Deposit shall not bear interest to Tenant, and Landlord shall be entitled to commingle the Security Deposit with Landlord' s other funds. Within ninety (90) days after the expiration or earlier termination of this Lease, Landlord shall (provided an event of default does not then exist) return the Security Deposit to Tenant, less any portion thereof which has been applied by Landlord in accordance with the terms of this Article. If an event of default shall occur or if Tenant fails to surrender the Premises in the condition required by this Lease, Landlord shall have the right (but not the obligation), without prejudice to any other remedy which Landlord may have on account thereof, to apply all or any portion of the Security Deposit to cure such default or to remedy the condition of the Premises. If Landlord so applies the Security Deposit or any portion thereof before the expiration or earlier termination of this Lease, Tenant shall deposit with Landlord, upon demand, the amount necessary to restore the Security Deposit to its original amount. The Security Deposit shall not be considered an advance payment of rent or a measure of Landlord' s damages in the case of a default by Tenant hereunder. Actions by Landlord against Tenant for any breach of this Lease shall in no way be limited or restricted by the amount of this Security Deposit and resort to such deposit shall not waive any other rights or constitute an election of remedies on the part of Landlord. If Landlord shall sell or transfer its interest in the Demised Premises, Landlord shall transfer the Security Deposit to such purchaser or transferee, in which event Tenant shall look solely to the new landlord for the return of the Security Deposit, and Landlord thereupon shall be released from all liability to Tenant for the return of the Security Deposit. It is agreed that this provision shall apply to every sale or transfer made of the Security Deposit to any new landlord. The Security Deposit shall not be assigned or encumbered by Tenant without the prior written consent of Landlord, and any attempt to assign or encumber the Security Deposit without the consent of Landlord shall be void and of no effect.


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ARTICLE THREE

Expenses, Taxes, Other Charges

SECTION 3.01. Tenant agrees that it will pay without deduction or set-off of any amount for any reason whatsoever, all Real Estate Taxes (as hereinafter defined) which may be imposed upon the Demised Premises during the Term hereof. AU Real Estate Taxes shall be paid by Tenant prior to their delinquency, and Tenant shall, prior to the delinquency of any such Real Estate Taxes, provide Landlord with paid receipts or other suitable evidence of the payment of the same. Real Estate Taxes for any partial years included in the Term shall be prorated between Landlord and Tenant. As used herein, the term " Real Estate Taxes" shall mean and include all personal property taxes relating to the Demised Premises, real estate taxes, special assessments, and all other governmental charges, general or special, ordinary or extraordinary, foreseen as well as unforeseen, of any kind and nature whatsoever, which are levied or assessed by any governmental authority or political subdivision thereof against the Demised Premises or any part thereof.

SECTION 3.02. Tenant shall also pay any tax or excise on rents, gross receipts tax or other tax (including, but not limited to, all applicable sales taxes), however described, which is levied or assessed by the United States of America or the State of Florida, or any other applicable governmental body or political subdivision thereof, against Landlord with respect to the rent, additional rent or other charges reserved under this Lease or as a result of Landlord' s receipt of such rent, additional rent or other charges accruing under this Lease. SECTION 3.03. Tenant may, but only if in good faith and with reasonable diligence, contest by any and all appropriate administrative, trial, appellate or other proceedings the amount, validity, enforceability or application of any taxes, assessments, charges or other obligations that Tenant is required to pay or perform to any person or entity other than Landlord by any provision of this Lease, and defer payment and discharge thereof during the pendency of such contest, provided that: (i) such contest suspends the collection or enforcement of the item contested, (ii) such contest shall have the effect of preventing the sale, loss or forfeiture of the Demised Premises, or any interest therein, to satisfy such item; (iii) within thirty (30) days after Tenant has been notified of the assertion of such item, Tenant shall have notified Landlord in writing of Tenant' s intention to contest same; (iv) neither Landlord nor Tenant will be subject to any criminal liability; (v) Tenant furnishes such security as may be required by law in connection with each such contest; (vi) the value, usefulness, occupation, enjoyment, operation and marketability of the Demised Premises will not be adversely impaired by any such contest; (vii) Tenant otherwise continues to pay and otherwise perform its obligations under this Lease; (viii) no default otherwise exists in the payment or other performance of Tenant under this Lease; (ix)each such contest is continuously prosecuted diligently to final determination; (x) Tenant pays, defends, indemnifies and holds Landlord harmless of and from any and all losses, judgments, decrees and costs (including all reasonable attorneys' fees) incurred in connection with each such contest; (xi) Tenant promptly following a final determination of each such contest fully pays and discharges all amounts that may be levied, assessed, charged, imposed or otherwise determined to be payable, together with all penalties, fines, interest, costs and expenses and otherwise complies with such final determination at Tenant' s sole cost and expense; (xii) Landlord is furnished with such security as Landlord reasonably may require to assure compliance with all of the foregoing requirements, it being understood that Landlord will not require any additional security if (a) Tenant has otherwise posted such security as may be required by the taxing authorities or (b) has bonded-off any potential lien or encumbrance on the Demised Premises; and (xiii) such contest is permitted by any mortgagee having a mortgage lien upon the Demised Premises. In this regard, Landlord may require that Tenant shall have deposited with Landlord at such place as Landlord may from time to time in writing appoint, a sum of money which shall be sufficient in the judgment of Landlord to pay in full such item being contested, and all interest which might become due thereon, and shall keep on


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deposit an amount so sufficient at all times, increasing such amount to cover additional interest whenever, in the judgment of Landlord, such increase is advisable. Any such deposits are to be held without any allowance of interest. So long as all of the foregoing requirements are met and Landlord is promptly reimbursed for all costs and expenses incurred, Landlord will cooperate in connection with any such contest if such cooperation is reasonably required.

SECTION 3.04. It is expressly understood and agreed that Tenant shall not be required to pay any of the following taxes or governmental impositions which shall be imposed against Landlord by any governmental authority, whether federal, state, county, city, municipal, or otherwise, to-wit: (a) any capital stock tax or other tax imposed against Landlord for the privilege or franchise of doing business as a corporation; (b) any income tax levied upon or against the income of Landlord, including any rental income derived by Landlord from the Demised Premises;

it being further expressly understood and agreed, however, that nothing in this Article Three shall relieve Tenant of the obligation for the payment of any gross sales, occupational license, privilege, excise or other present or future tax, license, fee or other charge imposed against Landlord by any governmental authority, whether federal, state, county, city, municipal or otherwise, in respect to the ownership, leasing, use, occupation, management, operation, maintenance, repair or rebuilding of the Demised Premises or any portion thereof, irrespective of whether the same shall be measured in whole or in part by the rental or other income derived therefrom by Landlord.

ARTICLE FOUR

Use and Compliance with Law s

SECTION 4.01. Tenant agrees that, unless and to the extent that it shall obtain Landlord' s prior approval, it will not use the Demised Premises, nor will it suffer or permit the same to be used, for any purpose other than as an automotive dealership. SECTION 4.02. Tenant shall throughout the term hereof, and at no expense whatsoever to Landlord, promptly comply, or cause compliance, with all laws and ordinances (including, without limitation, the Americans with Disabilities Act) and the rules, regulations and requirements of all federal, state, county and municipal governments, and appropriate departments, commissions, boards and officers thereof, foreseen or unforeseen, ordinary as well as extraordinary, and whether or not the same shall presently be within the contemplation of the parties hereto or shall involve any change of governmental policy or require structural or extraordinary repairs, alterations or additions and irrespective of the cost thereof, which may be applicable to the Demised Premises, including, without limitation, the fixtures and equipment thereof and the sidewalks and curbs adjoining the Demised Premises or the use or manner of use of the Demised Premises. TENANT ACCEPTS THE DEMISED PREMISES IN THE ACTUAL " AS-IS" CONDITION IN WHICH THE SAME ARE AS OF THE DATE OF THIS LEASE. For purposes of this Lease, the term " AS-IS" shall not be deemed to limit the representations and warranties made by Landlord or the other Sellers or the indemnification obligations of Landlord or the other Sellers in that certain Asset Exchange Agreement among Asbury Villanova II L.L.C., Tenant, Asbury Automotive Tampa GP L.L.C., J.I.W. Enterprises, Inc., Courtesy Imports of Tampa, Inc., Gulf Auto Holdings, Inc., Courtesy Toyota of Brandon, Inc., Landlord and Douglas M. Tew, dated as of December 19, 1997 (the " Asset Exchange Agreement" ); however, any rights, claims or actions which Tenant may have under the Asset Exchange Agreement as a result of any such representations and warranties or pursuant to the indemnification provisions in the Asset Exchange Agreement may not be used as a defense or offset in connection with any claim or action involving this Lease.


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SECTION 4.03. Tenant shall not during the term hereof maintain, commit or permit the maintenance or commission of any nuisance on or about the Demised Premises. Tenant' s use and occupation shall at all times be in compliance with the ordinances of Hillsborough County and the laws of Florida and of the United States and any regulations thereunder.

SECTION 4.04. Tenant shall at all times and in all respects comply with all federal, state and local laws, ordinances, rules and regulations, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, 42 U.S.C. $ 9601, et seq., and the Resource Conservation and Recovery Act, as amended from time to time, 42 U.S.C. $6901, et seq., and the regulations promulgated thereunder (collectively, the " Hazardous Materials Laws" ), regarding or relating in any way to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or transportation of any oil, flammable explosives, asbestos, urea formaldehyde, polychlorinated biphenyls, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including without limitation any " hazardous substances," " hazardous wastes," " hazardous materials" or " toxic substances" under any such laws, ordinances or regulations (collectively, " Hazardous Materials" ).

Tenant shall at its own expense procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for Tenant' s use of the Demised Premises, including, without limitation, discharge of (appropriately treated) materials or waste into or through any sanitary sewer system serving the Demised Premises. Except as discharged into the sanitary sewer in strict accordance and conformity with all applicable Hazardous Materials Laws, Tenant shall cause any and all Hazardous Materials generated or used by Tenant or any other party other than Landlord or its agents or employees in, on or about the Demised Premises during the term of this Lease to be removed from the Demised Premises and transported solely by duly licensed haulers to duly licensed facilities for final disposal of such Hazardous Materials and wastes. Tenant shall in all respects, handle, treat, deal with and manage any and all Hazardous Materials in, on, under or about the Demised Premises in complete conformity with all applicable Hazardous Materials laws and prudent industry practices regarding the management of such Hazardous Materials. All reporting obligations to the extent imposed upon Tenant by Hazardous Materials Laws are solely the responsibility of Tenant. Upon expiration or earlier termination of this Lease, Tenant shall cause all Hazardous Materials generated or used by Tenant or any other party other than Landlord or its agents or employees in, on or about the Demised Premises during the term of this Lease located on the Demised Premises to be removed therefrom and transported for use, storage or disposal in accordance and in compliance with all applicable Hazardous Materials Laws. Tenant acknowledges and agrees that it shall be responsible for and shall perform, at its sole cost and expense, any removal, remediation, cleanup and restoration which may be required with regard to the presence of any Hazardous Materials generated or used by Tenant or any other party other than Landlord or its agents or employees in, on or about the Demised Premises during the term of this Lease or the release of any Hazardous Materials into, onto, above or under the Demised Premises by Tenant or any third party during the term hereof, and Tenant shall perform such remedial action in accordance with all applicable laws, including any and all Hazardous Materials Laws. Further, Tenant shall indemnify, protect, defend (by counsel reasonably acceptable to Landlord), and hold Landlord and Landlord' s officers, employees, directors, agents, stockholders, successors and assigns free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses, damages, costs and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, including, without limitation, the Demised Premises and any improvements located thereon, arising from or caused in whole or in part, directly or indirectly, by the presence in, on, about or under the Demised Premises of any Hazardous Materials or by Tenant' s failure to comply with any Hazardous Materials Laws or in connection with any removal, remediation, cleanup, restoration and materials required hereunder as a result of the presence of any Hazardous Materials in, on, about or under the Demised Premises with respect to any Hazardous Materials generated, used or released in, on, about or under the Demised Premises by Tenant or any other party other than Landlord or its agents or employees during the


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term hereof or which may be released in, on, about or under the Demised Premises by Tenant or any other party other than Landlord or its agents or employees during the term hereof as may be required to return the Demised Premises to their condition existing prior to the appearance of any Hazardous Materials thereon. Notwithstanding the foregoing, Tenant shall not take any remedial action in response to the presence of any Hazardous Materials in, on, about or under the Demised Premises nor enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to or in any way connected with the Demised Premises without first notifying Landlord of Tenant' s intention to do so and affording Landlord ample opportunity to appear, intervene or otherwise appropriately assert and protect Landlord' s interest with respect thereto. In addition, at Landlord' s request, at the expiration of the term of this Lease, Tenant shall remove from the Demised Premises and dispose of all tanks or fixtures installed by Tenant which contain, have contained or are contaminated with, Hazardous Materials, in accordance with all applicable laws.

Tenant shall immediately notify Landlord in writing of (a) any enforcement, clean-up, removal or other governmental or regulatory action instituted, completed or threatened pursuant to any Hazardous Materials Laws; (b) any claim made or threatened by any person against Landlord, or the Demised Premises, relating to damage, contribution, cost recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Materials; and (c) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials in, on or about the Demised Premises or with respect to any Hazardous Materials removed from the Demised Premises, including, any complaints, notices, warnings, reports or asserted violations in connection therewith. Tenant shall also provide to Landlord, as promptly as possible, and in any event within five business days after Tenant first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Demised Premises or Tenant' s use thereof. Upon written request of Landlord (to enable Landlord to defend itself from any claim or charge related to any Hazardous Materials Law), Tenant shall promptly deliver to Landlord copies of hazardous waste manifests reflecting the legal and proper disposal of all such Hazardous Materials removed from the Demised Premises. All such manifests, to the extent such Hazardous Materials were released, generated or used during the term of this Lease by Tenant or any other party other than Landlord and its agents and employees, shall list the Tenant or its agent as a responsible party and in no way shall attribute responsibility for any such Hazardous Materials to Landlord. Landlord may, at its expense, commission environmental audits of the Demised Premises at any time after prior written notice to Tenant, it being understood that Landlord shall be responsible for the repair of any damage caused by such environmental audit.

Tenant' s obligations under this Section 4.04 shall survive the expiration or termination of this Lease.

ARTICLE FIVE Utility Charges

SECTION 5.01. Tenant agrees to pay or cause to be paid all charges for gas, water, sewer, electricity, light, heat, power, telephone or other communication service or other utility or service used, rendered or supplied to, upon or in connection with the Demised Premises throughout the term hereof, and to indemnify Landlord and save it harmless against any liability or damages on such account. Tenant shall also at its sole cost and expense procure or cause to be procured any and all necessary permits, licenses or other authorizations required for the lawful and proper use, occupation, operation and management of the Demised Premises and for the lawful and proper installation and maintenance upon the Demised Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in


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supplying any such service to or upon the Demised Premises. Tenant expressly agrees that Landlord is not, nor shall it be, required to furnish to Tenant or any other occupant of the Demised Premises, during the term hereof, any water, sewer, gas, heat, electricity, light, power or any other facilities, equipment, labor, materials or services of any kind whatsoever, and Landlord shall not be liable for any loss or damage suffered by Tenant as a result of a failu ...