AFTER RECORDING RETURN TO:
STEPHEN R. LEEDS, ESQ.
ROGERS & HARDIN
2700 CAIN TOWER, PEACHTREE CENTER
229 PEACHTREE STREET N.E.
ATLANTA, GEORGIA 30303
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made as of the 3rd day of January,
1996, by and between CARL H. WESTCOTT ("Landlord"), whose address is 1303 Marsh
Lane, Carrollton, Texas 75006 and ATLANTA TOYOTA, INC., a Texas corporation
("Tenant"), whose address is 2345 Pleasant Hill Road, Duluth, Georgia 30136.
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the sum of $10.00 Dollars in hand paid and
of the mutual covenants and conditions contained herein, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. PREMISES. Landlord leases to Tenant and Tenant takes bona
Landlord the following property:
The tract of land containing 9.634 acres, being in Land Lot
231 of the 6th District of Gwinnett County, Georgia, being
more particularly described on EXHIBIT A, attached hereto
and incorporated by reference herein.
together with all improvements thereon and all rights, privileges, easements and
appurtenances pertaining thereto (collectively, the "Premises") upon the terms
contained herein.
2. TERM. The term ("Term") hereof shall begin on the date hereof
and shall end on January 31, 2016, unless extended or sooner terminated as
provided herein.
3. RENT.
(a) During the first (1st) through the thirty-sixty (36th) month of
the Term, Tenant agrees to pay to Landlord, without demand, deduction, or
offset, as rent for the Premises, the sum of $81,666.67 per month.
(b) During the thirty-seventh (37th) through the one hundred
twentieth (120th) month of the Term, Tenant agrees to pay to Landlord, without
demand, deduction, or offset, as rent for the Premises, the sum of $90,000.00
per month.
(c) During the one hundred twenty-first (121st) through the one
hundred eightieth (180th) month of the Term, Tenant agrees to pay to Landlord,
without demand, deduction, or offset, as rent for the Premises, the greater of
either (i) $90,000.00 per month, or (ii) the First CPI Adjusted Rent Rate per
month (as calculated and defined below).
(d) During the one hundred eighty-first (181st) month of the Term
through the end of the Term, Tenant agrees to pay to Landlord, without demand,
deduction, or offset, as rent for the Premises, the greater of either (i) the
monthly rent provided for in subparagraph 30) above, or (i) the Second CPI
Adjusted Rent Rate per month (as calculated and defined below).
(e) (i) For purposes of this Lease, the following definitions
shall apply:
(A) The term "CONSUMER PRICE INDEX" shall mean the
Consumer Price Index for All Urban Consumers of Atlanta, Georgia
(all items, 1982-
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84=100) published by the Bureau of Labor Statistics, United States Department of
Labor.
(B) The term "Basic Index" shall mean, with respect to
the calculation of the First CPI Adjusted Rent Rate, the Consumer
Price Index most recently published prior to January 3, 1996, and
shall mean, with respect to the calculation of the Second CPI
Adjusted Rent Rate, the Consumer Price Index most recently
published prior to February 1, 2006.
(C) The term "ADJUSTED INDEX" shall mean, with respect
to the calculation of the First CPI Adjusted Rent Rate, the
Consumer Price Index most recently published prior to February 1,
2006, and shall mean, with respect to the calculation of the
Second CPI Adjusted Rent Rate, the Consumer Price Index most
recently published prior to February 1, 2011.
(ii) In computing the First CPI Adjusted Rent Rate, the
pertinent Adjusted Index shall be divided by the pertinent Basic
Index, and the resulting quotient shall be multiplied by seventy-five
hundredths (.75 or 75%). This product shall then be multiplied by the
monthly rental figure determined in accordance with subparagraph 3(b)
above and the product thereof shall equal the First CPI Adjusted Rent
Rate.
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(iii) In computing the Second CPI Adjusted Rent Rate, the
pertinent Adjusted Index shall be divided by the pertinent Basic
Index, and the resulting quotient shall be multiplied by seventy-five
hundredths (.75 or 75%). This product shall then be multiplied by the
monthly rental figure determined in accordance with subparagraph 3(c)
above and the product thereof shall equal the Second CPI Adjusted Rent
Rate.
(iv) In the event that (A) the Consumer Price Index ceases
to use 1982-84=100 as the basis of calculation, or (B) the Consumer
Price Index shall be discontinued for any reason, the Bureau of Labor
Statistics shall be requested to furnish a new index comparable to the
Consumer Price Index together with information which will make
possible the conversion to the new index in computing the adjusted
rent under this subparagraph 3(e). If for any reason the Bureau of
Labor Statistics does not furnish such an index and such information,
the parties hereto shall hereafter accept and use such other index or
comparable statistics on the cost of living for the City of Atlanta,
Georgia as shall be computed and published by an agency of the United
States or by a responsible financial periodical of recognized
authority men to be selected by Landlord and Tenant.
(f) Notwithstanding the foregoing, in no event shall any
monetary adjustment in the annualized rent rate
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pursuant to subparagraphs 3(c) or 3(d) above ever result in the annual rental
being increased to an amount greater than one and one-quarter percent (1.25%) of
all gross sales generated by Tenant from the Premises during the twelve-month
period occurring immediately prior to such increase.
(g) Rent during the Term hereof shall be due and payable at
Landlord's office at the above address on or before the first day of each
calendar month thereof. Any rent payment not received by the fifth (5th)
day of the calendar month shall be subject to a two and one-half percent
(2.5%) late charge, which charge the parties agree is a fair estimation of
the damages which may reasonably be expected to be incurred by Landlord in
connection with receiving such late payment.
(h) If the Term shall commence or end on a day other than the
first day of a calendar month, then the monthly rent for any fractional
months of the Term shall be appropriately prorated.
4. UTILITIES. Tenant shall have all utilities listed in its name
and shall pay all utility bills, including, but not limited to water, sewer,
gas, electricity, fuel, light, and heat bills, for the Premises, and Tenant
shall pay all charges for garbage collection services or other sanitary services
rendered to the Premises or used by Tenant in connection therewith. If Tenant
fails to pay for such services, Landlord may, at its option and after providing
Tenant with at least three (3) days
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prior written notice, pay the same, and the amount of the payment shall be
payable to Landlord as additional rent.
5. USE OF THE PREMISES; ENVIRONMENTAL INDEMNITY. The Premises shall
be used only for the operation of an automobile dealership, service facility,
and body shop facility and for any other purposes which may be agreed to by the
parties. The Premises shall not be used for any illegal purpose, nor in any
manner which may create nuisance or trespass. Furthermore, Tenant shall not
violate way federal or state environmental law, and Tenant agrees to indemnify
and hold harmless Landlord from any and all damages, costs, fines and expenses
that might arise as a result of any such violation and from its placement upon
the Premises of hazardous wastes and toxic substances that are placed on the
Premises after the date hereof. Notwithstanding anything to the contrary
contained in this Paragraph 5, there shall not be deemed to be a nuisance or
trespass and Tenant's obligation to indemnify and hold Landlord harmless shall
not extend to any damages, claims, or liabilities arising as a result of
contaminants existing on the Premises on the date hereof or migrating onto or
beneath the Premises where such contamination is not caused by or attributable
to Tenant.
6. REPRESENTATION. All representations and warranties made by
Landlord in Sections 2.10, 2.11 and 3.3 of that certain Stock Purchase Agreement
(the "SPX') dated November 17, 1995, as amended by that certain Amendment
Agreement dated January 16, 1996, by and among Landlord, United Auto Group, Inc.
and UAG Atlanta, Inc. are hereby incorporated by reference to the same
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effect as if fully set forth herein; provided, however, that such
representations and warranties shall survive only for the period of time
stipulated in the SPA.
7. NO REPAIRS BY LAND. Landlord shall not be obligated to repair or
maintain the Premises, and all repairs, replacements, and maintenance of any
kind shall be the sole responsibility of Tenant.
8. REPAIRS BY TENANT. Tenant accepts the condition of the Premises
as of the date hereof and agrees that the Premises are suited for the uses
specified herein. Tenant shall, throughout the Term, at its expense, maintain
the Premises in good order and repair, including but not limited to repair and
maintenance and, if necessary, replacement of the electrical, heating
ventilation and air conditioning and plumbing systems, as well as the roof and
all structural components of buildings located on the Premises. Tenant further
agrees to care for all landscaping on the Premises, including the mowing of
grass, paving, policing, care of shrubs and general landscaping. If Tenant
fails to properly maintain and repair any portion of the Premises, Landlord may,
following at least three (3) days prior written notice to Tenant maintain the
same including replacing of components and Tenant shall pay to Landlord upon
demand the commercially reasonable costs thereof together with interest on said
amount from the date of payment by Landlord at a rate equal to three percent
(3%) over the prime commercial rate announced from time to time by NationsBank
of Georgia, N.A. (or, if not available, by any other large banking institution
with offices
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situated in Atlanta, Georgia). Tenant agrees to return the Premises to Landlord
in as good condition and repair as when first received by Tenant, natural wear
and tear, damage by storm, fire, lightening; earthquake or other casualties and
condemnation excepted.
9. TAX AND INSURANCE. Tenant shall promptly and on a timely basis
pay as additional rent during the Term all charges for taxes (including, but not
limited to, ad valorem taxes, special assessments and any other governmental
charges) on the Premises, which amounts shall be prorated between Tenant and
Landlord for all periods partially but not entirely within the Term. Tenant
shall also maintain, at all times during the Tenn of this Lease, fire and
extended insurance coverage on the Premises in amounts equal to the full
replacement value of the Premises, and written on policies issued by
underwriters reasonably acceptable to Landlord. Landlord agrees that such
coverages may be provided by blanket policies of insurance covering other
locations in addition to the Premises. All policies shall insure Landlord and
Tenant as their respective interests shall appear and shall contain a
replacement cost endorsement and a mortgagee clause in favor of Landlord's
mortgagee(s). Should Tenant fail to pay such tax expenses or fail to provide
certificates evidencing the required insurance coverage, Landlord may, following
at least three (3) days prior written notice to Tenant, pay any such charges or
secure such coverage, and Tenant shall pay to Landlord upon demand as additional
rent all amounts so expended by Landlord together with
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interest on said amount from the date of payment by Landlord at a rate equal to
three percent (3%) over the prime commercial rate announced from time to time by
NationsBank of Georgia, N.A. (or, if not available, by any other large banking
institution with offices situated in Atlanta, Georgia).
10. DESTRUCTION OF OR DAMAGE TO THE PREMISES. If the Premises should
be damaged or destroyed by any insured peril whatsoever, all insurance proceeds
shall be delivered to Landlord and Landlord shall proceed with reasonable
diligence to rebuild and repair the Premises to substantially the condition in
which it existed prior to such damage or destruction. If, however, the damage
or destruction (a) shall be complete or (b) shall occur within the last year of
the Term, then either Tenant or Landlord may terminate this Lease as of the date
that such damage or destruction occurs by giving written notice to the other of
such election to terminate within sixty (60) days after the date of such damage
or destruction. The rent payable under this Lease shall be abated beginning on
the date of damage or destruction within the scope of this Paragraph 10 (to the
extent that the Premises are rendered unusable by Tenant) and shall resume upon
recompletion to substantially the condition in which the Premises existed prior
to such damage or destruction. The obligation of Landlord to rebuild the
Premises as required by this Paragraph 10 shall not be affected or diminished in
any may by Landlord's inability to obtain access to any insurance proceeds which
may have been delivered to Landlord's mortgagee.
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11. INDEMNITY; WAIVER OF SUBROGATION. Tenant agrees to indemnify and
hold harmless Landlord, against all claims, and expenses resulting therefrom,
including reasonable attorneys' fees and court costs, for damage to persons or
property by reason of the use or occupancy of the Premises by Tenant. Tenant
shall periodically provide Landlord with certificates of general liability
insurance naming Landlord as an additional insured, in an amount of not less
than $3,000,000 and with an insurance carrier reasonably satisfactory to
Landlord. The dollar amount of such insurance coverage shall be reviewed
annually, and adjusted if necessary, in order to provide for adequate protection
to both Landlord and Tenant; provided, however, in no event shall any aggregate
percentage increases in Tenant's liability coverage obligations hereunder ever
exceed the cumulative percentage increases in the Consumer Price Index occurring
during the corresponding portion of the Term of this Lease.
Landlord and Tenant each hereby release and waive any right of
recovery against the other for any loss, claim, liability, or damage occurring
on or to the Premises, whether wholly or contributorily caused by the negligence
of the other party, to the extent that the same is compensated by actual receipt
of proceeds from insurance policies covering such loss, claim, liability, or
damage.
12. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the express prior written consent of
Landlord which consent shall not be
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unreasonably withheld, except that Tenant may alter any wall that is not of a
load-bearing nature without the consent of Landlord. In the event Landlord has
not responded to Tenant's written request for alterations within fifteen (15)
days of when received, such alteration shall be deemed to have been approved by
Landlord. Tenant agrees to save Landlord harmless on account of any claim or
lien of mechanics, materialmen or other party, in connection with any
alterations, additions or improvements of or to the Premises performed by
Tenant. Tenant shall furnish such waivers of liens and appropriate affidavits
from the general contractor or subcontractors as Landlord may reasonably
require. Notwithstanding the foregoing, Tenant shall be entitled to make the
following changes without necessity of Landlord's consent: (i) any alterations
required to be made by it pursuant to governmental orders, rules, laws,
regulations, ordinances or requirements, (ii) any changes in its signage, and
(iii) any non-structural alterations costing less than $25,000.00. Tenant shall
have the right to finance any alterations or improvements permitted hereunder
and may pledge its interest in this Lease as security therefor; provided,
however, that any liens granted in connection with such financings shall be
subordinate to both the rights of Landlord under this Lease and to the rights of
any of Landlord's mortgagees.
13. GOVERNMENTAL ORDERS. Tenant agrees, at its own expense, to
promptly comply with all requirements of any public authority made necessary by
reason of Tenant's occupancy of the Premises or which may be necessary for
Tenant's occupancy to
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continue. Landlord shall have no obligation of any kind for such compliance.
14. CONDEMNATION. If all or a substantial part of the Premises is
condemned for any public use or purpose, then the Term shall cease from the date
when possession thereof is taken, and rent shall be prorated as of that date;
provided, however, that Tenant may elect to continue this Lease in full force
and effect notwithstanding any such taking. Any termination shall be without
prejudice to the rights of either Landlord or Tenant to recover compensation and
damage caused by such condemnation from the condemner. Neither Tenant nor
Landlord shall have any rights in any award made to the other by any
condemnation authority notwithstanding the termination of the Lease as herein
provided. If the Lease is not terminated as provided above, then (i) this Lease
shall continue in effect with respect to the remaining portion of the Premises,
in which event the rent payable hereunder during the unexpired portion of the
Term of this Lease shall be adjusted equitably, and (ii) Landlord shall proceed
with reasonable diligence to rebuild and repair the untaken portions of the
Premises to as nearly as reasonably possible their value, condition, and
character as such existed immediately prior to such taking. The obligation of
Landlord to rebuild the Premises as required by this Paragraph 14 shall not be
affected or diminished in any way by Landlord's inability to obtain access to
any condemnation proceeds which may have been delivered to Landlord's mortgagee.
The phrase "substantial part," for purposes of this section shall mean so much
of the Premises, the
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improvements located thereon, access to the Premises, or any combination of the
foregoing, such that the taking thereof would prevent or substantially impair
the ability of Tenant to operate its business in a manner consistent with the
operation of its business prior to such taking.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord (which consent shall not be unreasonably withheld),
assign this Lease or any interest hereunder, or sublet the Premises or any part
thereof, or permit the use of the Premises by any party other than Tenant. All
requests for assignment or subletting shall be made in writing and delivered to
Landlord. Failure by Landlord to disapprove of any proposed assignment or
subletting within thirty (30) days after receipt of Tenant's written request
shall result in such request being deemed approved. Consent to any assignment
or sublease shall not invalidate this provision, and all later assignments or
subleases shall be made only on the prior written consent of Landlord. Any
assignee of Tenant, at option of Landlord, shall become directly liable to
Landlord for all obligations of Tenant hereunder, but no sublease or assignment
by Tenant shall relieve Tenant of any liability hereunder. Notwithstanding the
foregoing, Tenant shall be entitled to freely assign or sublet its interest in
this Lease to any parent, wholly-owned subsidiary, or other entity, under common
control with Tenant, without the prior written consent of Landlord. Moreover,
the sale or transfer of all or any part of the capital
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stock of Tenant shall not be deemed to be an assignment hereunder.
16. REMOVAL OF FIXTURES. Tenant may (so long as no Event of Default
has occurred and is continuing hereunder), prior to the end of the Term, remove
all trade fixtures and equipment which Tenant has purchased as leasehold
improvements or placed in the Premises subsequent to the date hereof, provided
that Tenant repairs all damage to the Premises caused by the removal. However,
any buildings, fixtures, or other attached property installed by Tenant as
replacements of existing items, or anything that cannot be removed without
substantially changing the character of the Premises, shall become the property
of Landlord.
17. CANCELLATION OF LEASE BY LANDLORD. It shall be an "Event of
Default" hereunder if,
(a) Tenant fails to pay rent, including additional rent herein
reserved, when due, and fails to cure the failure to pay within ten (10)
days after written notice thereof from Landlord;
(b) Tenant fails to perform any of the terms or provisions of
this Lease other than the provision requiring the payment of rent, and
fails to cure the default within thirty (30) days after the date of receipt
of written notice of default from Landlord; provided, however, that if the
nature of the default is such that the same cannot reasonably be cured
within said thirty (30) day period, Tenant shall not be deemed to be in
default if Tenant shall, within such
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period, commence such cure and thereafter diligently prosecute the same to
completion;
(c) Tenant is adjudicated bankrupt;
(d) a permanent receiver is appointed for Tenant's property and
the receiver is not removed within sixty (60) days after written notice
from Landlord to Tenant to obtain the removal;
(e) Tenant or any guarantor of Tenant's obligations under this
Lease files a petition seeking an order for relief under Title 11 of the
United States Code, as amended, or under any similar law or statute of the
United States or any state thereof, or a petition seeking an order for
relief under Title 11 of the United States Code, or any similar law or
statute of the United States or any state thereof, is filed against Tenant
or any guarantor of Tenant's obligations under this Lease and such petition
is not dismissed with prejudice within sixty days from the date of filing;
(f) Tenant makes an assignment for benefit of creditors; or
(g) Tenant's effects should be levied upon or attached under process
against Tenant and not satisfied or dissolved within thirty (30) days after
written notice from Landlord to Tenant to obtain satisfaction thereof.
Upon the occurrence of an Event of Default, Landlord may pursue any right or
remedy against Tenant available at law or in equity. Without limitation to the
foregoing, Landlord, at its option, may at once or within six (6) months
thereafter (so long as such
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Event of Default is continuing), elect to terminate this Lease by written notice
to Tenant; whereupon this Lease shall terminate. Any notice provided in this
section may be given by Landlord, or its attorney, or agent herein named. Upon
termination of the Lease by Landlord, Tenant shall at once surrender possession
of the Premises to Landlord and remove all of Tenant's effects therefrom, or
Landlord shall be entitled to remove all persons and effects therefrom, using
such force as may be necessary without being guilty of trespass, forcible entry
or detainer or other tort.
18. RELETTING BY LANDLORD. If, after an Event of Default, Landlord
has not elected to terminate this Lease, Landlord shall, as Tenant's agent,
without terminating this Lease, enter upon and exercise good faith efforts to
rent the Premises at the best price obtainable by reasonable effort, for any
term Landlord deems proper. Tenant shall be liable to Landlord for the present
value of any deficiency between rent due hereunder and the rent received by
Landlord upon relenting. For purposes of computing the "present value of any
deficiency" in accordance with the provisions of this paragraph, the parties
agree to utilize a discount rate equal to the then prevailing prime rate of
interest charged by leading money center banks as published in "THE WALL STREET
JOURNAL."
19. FINANCIAL STATEMENTS. Within fifteen (15) days after such are
prepared (but in no event later than 120 days after the end of each fiscal
year), Tenant shall deliver to Landlord audited consolidated financial
statements of United Auto
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Group, Inc. ("UAG") prepared in accordance with generally accepted accounting
principles consistently applied by an independent certified public accountant;
provided, however, that if UAG's auditors love not delivered such financial
statements within said 120-day period despite UAG's diligent requests of them to
do so, such added delay shall not constitute a default or an Event of Default
hereunder. In addition, Tenant shall deliver to Landlord from time to time (but
no more than once in any given calendar year), within thirty (30) days after
request, current unaudited financial statements of Tenant prepared in accordance
with generally accepted accounting principles consistently applied by and
certified to be true and correct by Tenant.
20. FOR RENT SIGNS. Landlord may place "FOR RENT" or "FOR SALE
"signs in the Premises one hundred eighty (180) days before the end of the Term.
Landlord may enter the Premises at reasonable hours, and after reasonable
notice, to show the Premises to prospective purchasers or tenants.
21. EFFECT OF TERMINATION OF LEASE. No termination of this Lease
prior to the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof.
22. WARRANTIES OF TITLE AND QUIET POSSESSION. Landlord warrants and
represents that it has good and marketable title to the Premises and has full
right to make this Lease and that Tenant shall have quiet and peaceable
possession of the Premises during the Term so long as no Event of Default is in
existence and continuing hereunder.
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23. SUBORDINATION ATTORNMENT. This Lease is subject and subordinate
to any deed of trust, mortgage, or other security instrument, which presently or
may in the future cover the Premises, and to any increases, renewals,
modifications, consolidations, replacements, and extensions of any of such deed
of trust, mortgage, or security instrument, provided, however, that Tenant's
subordination to any encumbrance arising after the date of this Lease shall be
conditioned upon Landlord's delivery to Tenant of a nondisturbance agreement in
form reasonably satisfactory to Tenant. Tenant shall, however, within ten (10)
days after demand, execute, acknowledge, and deliver to Landlord any further
instruments and certificates evidencing such subordination as Landlord may
reasonably require. If Tenant fails to return such instrument or certificate
within said ten (10) day period due to any reasonable objection(s) as to its
form, Tenant shall not be deemed in default hereunder so long as Tenant
indicates to Landlord the basis of such reasonable objection(s) within said ten
(10) day period.
This Lease is further subject and subordinate to (a) all applicable
ordinances of the city in which the Premises are located, relating to easements,
franchises and other interests or rights upon, across, or appurtenant to the
Premises, and (b) utility easements and agreements, covenants, restrictions, and
other encumbrances, both existing and (subject to the provisions of Paragraph 24
hereof) any future encumbrances.
Notwithstanding the generality of the foregoing, any mortgagee shall
have the right at any time to subordinate any
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deed of trust, mortgage, or other security instrument to this Lease. At any
time, before or after the institution of any proceedings for the foreclosure of
any deed of trust, mortgage, or other security instrument or sale of the
Premises under any such deed of trust, mortgage, or other security instrument,
Tenant shall attorn to such purchaser upon any such sale or the grantee under
any deed in lieu of such foreclosure and shall recognize such purchaser or
grantee as Landlord under this Lease. The agreement of Tenant to attorn
contained in the immediately preceding sentence shall survive any such
foreclosure sale, trustee's sale, or conveyance in lieu thereof. Tenant shall,
upon demand at any time, before or after any foreclosure sale, trustee's sale,
or conveyance in lieu thereof, execute, acknowledge, and deliver to Landlord's
mortgagee any written instruments and certificates evidencing such attornment as
Landlord's mortgagee may reasonably require. Upon Tenant's written request and
notice to Landlord, Landlord shall obtain from any such mortgagee a written
agreement that the rights of Tenant shall remain in full force and effect during
the Term of this Lease so long as Tenant shall continue to recognize and perform
all of the covenants and conditions of this Lease.
24. ESTATE CREATED FUTURE GRANTS. Landlord and Tenant intend for and
agree that this Lease shall create a leasehold estate in the Premises for the
Term. Landlord agrees that, during the Term of this Lease, it will not execute
or join in any conveyances of easements or restrictive covenants or other
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agreements restricting or affecting Tenant's use of the Premises without the
prior written consent of Tenant.
25. HOLDING OVER. If Tenant remains in possession of the Premises
after expiration of the Term, with Landlord's acquiescence and without any
express agreement of parties, Tenant shall be a tenant from month-to-month at a
monthly rent rate equal to 150% of the monthly rental rate in effect at the end
of the Tenn, and there shall be no renewal of this Lease by operation of law.
26. ATTORNEY'S FEES AND HOMESTEAD. In the event either party should
seek to enforce its rights under this Lease through judicial process, the
prevailing party in any such action shall be entitled to collect from the other
party, in addition to all other sums owing hereunder, its reasonable attorney's
fees. Tenant waives all homestead rights and exemptions which it may have under
any law as against any obligation owing under this Lease.
27. RIGHTS CUMULATIVE. All rights hereunder shall be cumulative but
not restrictive to those given by law.
28. SERVICE OF NOTICE. Any notice required or permitted to be
delivered hereunder may be delivered in person or by United States certified
mail, postage prepaid, return receipt requested, or by recognized overnight
courier (e.g. Federal Express or DHL), next day delivery charges prepaid,
addressed to the parties at the addresses indicated above or at such other
addresses as may be specified by written notice delivered in accordance
herewith. Such notices shall be deemed effective three (3) business days
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after deposited in the U.S. mail, or on the next business day if delivered by
overnight courier, or immediately upon delivery in person.
29. WAIVER OF RIGHTS. Neither party's failure to exercise any power
given to them hereunder, or to insist upon strict compliance by the other party
with its obligations hereunder, nor any custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of such party's right
to demand exact compliance with the terms hereof.
30. TIME OF ESSENCE. Time is of the essence under this Lease.
31. SUCCESSORS AND ASSIGNS. This Lease shall apply to, inure to the
benefit of, and be binding upon the parties hereof and their respective
successors, permitted assigns, and legal representatives except as otherwise
expressly provided herein.
32. TRIPLE NET LEASE. This Lease shall be considered a "triple net
lease" so that, except as expressly set forth herein, Tenant shall bear all
responsibility as additional rent for all payments of any kind or nature
relating to the Premises and/or the ownership, leasing, operation, maintenance,
repair and replacement, rebuilding, use or occupation thereof during the Term,
including but not limited to payment of all taxes (except for income, estate,
inheritance or gift taxes of Landlord), insurance, repairs, maintenance,
assessments, or otherwise. Except as expressly set forth herein, (i) Tenant
shall assume with respect to the Premises every obligation relating thereto
which the ownership thereof entails and which, but for this
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Lease, would be borne by Landlord; and (ii) Tenant agrees to indemnify and hold
harmless Landlord for any and all claims, liabilities or costs including
attorneys' fees) arising out of this Lease or Tenant's occupancy; provided,
however, that in no event shall Tenant be responsible for, or be deemed to have
indemnified Landlord against any violation of applicable environmental laws
existing on the date of this Lease.
33. ENTIRE AGREEMENT; CONFLICT. This Lease and the SPA, including
any attachments made a part hereof or thereof, contains the entire agreement
between the parties and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein or in the SPA, shall
be of any force or effect. In the event of any conflict between the terms
contained herein and the terms contained in the SPA, the terms of the SPA shall
control.
34. SEVERABILITY. If any term, provision or clause of this Lease, or
if the application thereof to any person or circumstances, shall to any extent
be invalid or unenforceable, then the remainder of this Lease or the application
of such term, provision or clause to persons or circumstances other than those
to which it is invalid or unenforceable shall not be affected thereby, and each
and every remaining term, provision, clause and application of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
35. EXECUTION IN COUNTERPARTS. This Lease may be executed in two or
more counterparts, each of which shall be
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deemed an original, but all of which taken together shall constitute one and the
same instrument.
36. AMENDMENT. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant.
37. HEADINGS. The headings used in this Lease are for the purposes
of convenience only. They shall not be construed to limit or to extend the
meaning of any part of this Lease.
38. GOVERNING LAW. This Lease shall be construed in accordance with
the laws of the State of Georgia, and all obligations of the parties created
hereunder are performable in Gwinnett County, Georgia.
39. FORCE MAJEURE. Wherever a period of time is herein prescribed
for action to be taken by either Landlord or Tenant, such party shall not be
liable or responsible for, and there shall be excluded from the computation of
any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, wars, governmental laws, regulations or
restrictions or other causes which are beyond the control of Landlord or Tenant,
as the case may be.
40. LIMITATION OF WARRANTIES. LANDLORD AND TENANT EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS LEASE OR IN THE SPA.
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals, in triplicate, the day and year first above written.
LANDLORD:
/s/Carl H. Westcott
-------------------
Notarized Carl H. Westcott
TENANT:
Atlanta Toyota, Inc.
a Texas Corporation
By: /s/George Lowrance
------------------
Name: George Lowrance
Notarized Title: Secretary
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EXHIBIT "A"
All that certain tract or parcel of land containing 9.634 acres, lying
and being in Land Lot 231 of the 6th District of Gwinnett County, Georgia, being
more particularly shown on a plat of survey of Precision Planning, Inc., Randall
W. Dixon, G.R.L.S. No. 1678, dated December 18, 1986, and from said plat
described as follows:
BEGINNING on an iron pin (set) located on the Southwestern margin of
the right-of-way of Pleasant Hill Road (a 120 foot right-of-way), said iron pin
being the Northernmost corner of the property herein conveyed as shown and
described on the survey of this property prepared by Precision Planning, Inc.,
as referenced above, said iron pin also being the Northernmost point of the
right-of-way of Old Norcross Road as conveyed by right-of-way deed recorded in
Deed Book 3131, Page 198, Gwinnett County, Georgia, Records, as said deed
defines and illustrates the point of intersection of the Southeastern boundary
of Old Norcross Road and the Southwestern margin of Pleasant Hill Road, and
running thence from said Beginning in a Southeasterly direction along the right
- -of-way of Pleasant Hill Road the following courses and distances: South 53
degrees 36 minutes 34 seconds Ease 382.22 feet; and thence 117.79 feet along the
arc of a curve to the right to an iron pin (set), such curve being subtended by
a cord bearing South 52 degrees 24 minutes 22 seconds East 117.77 feet and
having a radius of 2,804.79 feet; thence with the line of property now or
formerly owned by Pleasant Land Corporation South 61 degrees 53 minutes 21
seconds West 796.81 feet to an iron pin (set); and South 62 degrees 44 minutes
28 seconds West 238.77 feet to an iron pin (set) located on the Southeastern
right-of-way of Franklin Road (a 100 foot right-of-way); thence with the right
- -of-way of Franklin Road in a Northwesterly direction the following courses and
distances: 259.45 feet along the arc of a curve to the left, such curve being
subtended by a cord bearing North 19 degrees 11 minutes 36 seconds West 258.95
feet and having a radius of 1,195.915 feet; thence North 25 degrees 24 minutes
29 seconds West 143.57 feet to an iron pin (set); and North 18 degrees 55
minutes 18 seconds East 107.30 feet to an iron pin (set) located at the
intersection of the rights-of-way of Franklin Road and Old Norcross Road; thence
with the Southeastern right-of-way of Old Norcross Road the following courses
and distances: 113.32 feet along the arc of a curve to the right to an iron pin
(set), such curve being subtended by a cord bearing North 62 degrees 24 minutes
13 seconds East 113.32 feet, and having a radius of 6,346.386 feet; thence North
61 degrees 53 minutes 21 seconds East 538.05 feet to an iron pin (set); and
North 88 degrees 08 minutes 13 seconds East 51.02 feet to the point and place of
BEGINNING.
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