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 this 1st day of May, 1996, by and
between STEVEN L. RAYMAN and RICHARD W. KEFFER, JR. (jointly and severally
referred to herein as "Landlord"), whose addresses are 3014 Lake Park Drive,
Jonesboro, GA 30236 and 8200 E. Independence Blvd., Charlotte, NC 28227,
respectively and STEVE RAYMAN NISSAN, INC., a Georgia corporation ("Tenant"),
whose address is 6889 Jonesboro Road, Morrow, Georgia 30260.
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 leases from
Landlord the following property:
All that tract or parcel of land containing approximately
5.5 acres, lying and being in Land Lots 81 and 112 of the
12th District of Clayton County, City of Morrow, Georgia,
being more particularly described on EXHIBIT A, attached
hereto and incorporated by reference herein.
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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 hereof shall begin on the date hereof and shall
end on midnight April 30, 2016, unless extended or sooner terminated as provided
herein ("Term").
3. RENT.
(a) During the first (1st) through the sixtieth (60th) month of the
Term, Tenant agrees to pay to Landlord, as rent for the Premises, the sum of
Twenty-Six Thousand and Fifty ($26,050.00) Dollars per month ("Base Rate").
(b) During the sixty-first (61st) through the one hundred twentieth
(120th) month of the Term, Tenant agrees to pay to Landlord, as rent for the
Premises, the Base Rate per month plus a percentage of the Base Rate per month,
which percentage shall be three-fourths (3/4) of the percentage increase in the
Consumer Price Index between the first month of the Term and the sixtieth (60th)
month of the Term (the "First CPI Adjusted Rent Rate").
(c) During the one hundred twenty-first (121st) through the one
hundred eightieth (180th) month of the Term, Tenant agrees to pay to Landlord,
as rent for the Premises, the First CPI Adjusted Rent Rate per month plus a
percentage of the First CPI Adjusted Rent Rate per month, which percentage shall
be three-fourths (3/4) of the percentage increase in the Consumer Price Index
between the Sixtieth (60th) month of Term and the one hundred twentieth (120th)
month of the Term (the "Second CPI Adjusted Rent Rate").
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(d) During the one hundred eighty-first (181st) month of the Term
through the two hundred fortieth (240th) month of the Term, Tenant agrees to pay
to Landlord, as rent for the Premises, the Second CPI Adjusted Rent Rate per
month plus a percentage of the Second CPI Adjusted Rent Rate per month, which
percentage shall be three-fourths (3/4) of the percentage increase in the
Consumer Price Index between the one hundred twentieth (120th) month of the Term
and the one hundred eightieth (180th) month of the Term (the "Third CPI Adjusted
Rent Rate").
(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, 1982-84=100) published by the Bureau of Labor Statistics,
United States Department of Labor.
(B) In computing increases in the Consumer Price Index
the parties will utilize the Consumer Price Index most recently
published prior to the dates called for in this Lease.
(ii) 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
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the adjusted rent under this paragraph 3 and paragraph 40 of this
Lease. 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 then to be
selected by Landlord and Tenant.
(f) 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 after notice of non-payment to Tenant by Landlord shall be subject to
an interest charge at the prime commercial rate (as quoted on a daily basis
by NationsBank, or, if not available, another large banking institution
with offices situated in Atlanta, Georgia) plus two (2%) percent per annum
("Interest Rate"), 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.
(g) 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.
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(h) In no event shall the Adjusted Rent Rate for any current
period be less than the Adjusted Rent Rate for the preceding period.
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 twenty (20) days prior written notice, pay the same, and
the amount of the payment shall be payable to Landlord as additional rent.
Landlord shall not be or become liable for damages to Tenant alleged to be
caused or occasioned by or in any way connected with or the result of any
interruption, defect or breakdown of any utility.
5. USE OF THE PREMISES; ENVIRONMENTAL INDEMNITY. The Premises shall
be used only for the operation of a new and used automobile dealership, service
facility, body shop facility and uses incidental thereto, 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 any 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
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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 after the date hereof,
where such contamination is not caused by or attributable to Tenant, all of
which shall be Landlord's responsibility.
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 "SPA") dated as of March 1, 1996 by and among Landlord, United Auto Group,
Inc., Steven L. Rayman, Richard W. Keffer and UAG Atlanta II, Inc. are hereby
incorporated by reference to the same effect as if fully set forth herein.
7. NO REPAIRS BY LAND. Landlord shall not be obligated to repair or
maintain the Premises after the date of this Lease, and all repairs,
replacements, and maintenance of any kind shall be the sole responsibility of
Tenant except to the extent the necessity therefor arose on or prior to the date
hereof, in which event such shall be the responsibility of Landlord.
8. REPAIRS BY TENANT. Subject to Landlord's representations and
warranties in the SPA, 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
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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 twenty (20) days prior written notice to Tenant, maintain the
same including replacing of components and Tenant shall pay to Landlord within
thirty (30) days after demand the commercially reasonable costs thereof together
with interest on said amount from the date of payment by Landlord at a rate
equal to the Interest Rate. 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 Term 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
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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. Should Tenant fail to pay such
tax expenses or fail to provide certificates evidencing the required insurance
coverage, Landlord may, following at least twenty (20) days prior written notice
to Tenant, pay any such charges or secure such coverage, and Tenant shall pay to
Landlord within thirty (30) days after demand as additional rent all amounts so
expended by Landlord together with interest on said amount from the date of
payment by Landlord at a rate equal to the Interest Rate.
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 Tenant and Tenant 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 two (2)
years of the Term, then Tenant may terminate this Lease as of the date that such
damage or destruction occurs by giving written notice to Landlord of such
election to terminate within sixty (60) days after the date of such damage or
destruction. If this Lease is terminated by Tenant, insurance proceeds with
respect to the building shall be paid to Landlord. 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)
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and shall resume upon recompletion to substantially the condition in which the
Premises existed prior to such damage or destruction.
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.
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12. ALTERATIONS. Tenant shall make no structural alterations,
additions or improvements to the Premises without the express prior written
consent of Landlord which consent shall not be unreasonably withheld, except
that Tenant may alter any wall that is not of a load-bearing nature without the
consent of Landlord. Tenant may make non-structural changes and modifications
to the Premises without Landlord's approval. 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 also 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, and (ii) any changes in its
signage or recommended or required by the automobile manufacturer whose
automobiles are sold on the Premises. 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 the rights of Landlord
under this Lease.
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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 from and after the date hereof or which may
be necessary for Tenant's occupancy to continue if the requirement to comply
arises after the date of this Lease. Landlord shall have no obligation of any
kind for such compliance except to the extent it arose prior to the date of this
Lease.
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. Except as provided
herein, neither Tenant nor Landlord shall have any rights in any award made
solely 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
proportional to the ratio of the value of the remaining portion of the Premises
to the total value of the Premises prior to the taking, (ii) the condemnation
award shall be paid to Tenant to hold for payment of repair and restoration to
the
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Premises, and (iii) Tenant 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. Any sums remaining after payment for such reconstruction shall
be paid by Tenant to Landlord to the extent they represent payment for a taking
of Landlord's fee interest. The phrase "substantial part," for purposes of this
section shall mean so much of the Premises, the improvements located thereon,
access to the Premises, or any combination of the foregoing, such that the
taking thereof would prevent or substantially impair, in Tenant's reasonable
judgment, 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 or
delayed), 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 ten (10) days after receipt of Tenant's written
request with reasons therefor 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 the option of
Landlord, shall become directly liable to Landlord for all
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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, subsidiary or other entity under common control with Tenant or
Tenant's parent, without the prior written consent of Landlord. Moreover, the
sale or transfer of all or any part of the capital 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
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(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
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 (60) 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
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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 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 reletting. 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."
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19. FINANCIAL STATEMENTS. Within fifteen (15) days after such are
prepared Tenant shall deliver to Landlord audited consolidated financial
statements of United Auto Group, Inc. ("UAG") prepared in accordance with
generally accepted accounting principles consistently applied by an independent
certified public accountant.
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.
23. SUBORDINATION ATTORNMENT. Landlord represents that the only Deed
to Secure Debt with respect to the Premises is in favor of NationsBank, N.A.
(South), F/K/A NationsBank of Georgia, N.A., dated April 5, 1993, recorded in
Deed Book 1887, Page 90, Clayton County, Georgia Records. Landlord shall
provide Tenant a Subordination, Non-Disturbance and Attornment Agreement from
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NationsBank, N.A. (South) in the form attached hereto and incorporated herein by
reference as EXHIBIT "B" ("SNDA"). 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 non-disturbance agreement in form
reasonably satisfactory to Tenant containing the substantive provisions of the
SNDA.
Notwithstanding the generality of the foregoing, any mortgagee shall
have the right at any time to subordinate any 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
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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 agreements restricting or affecting Tenant's use of the Premises without
the prior written consent of Tenant, which may be withheld in Tenant's sole
discretion.
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 125% of the monthly rental rate in effect at the end
of the Term, 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.
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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 business 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 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,
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Tenant shall bear all responsibility as additional rent for all payments of any
kind or nature relating to the Premises, including but not limited to payment of
all taxes (except for income, estate, inheritance or gift taxes of Landlord),
insurance, repairs and maintenance arising after the date of this Lease, but
subject to Landlord's representations and warranties in the SPA.
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 deemed an original, but all of which
taken together shall constitute one and the same instrument.
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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 Clayton 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. EXTENSION OPTIONS. Tenant shall have two (2) separate five (5)
year options to extend the Term of this Lease upon the following terms and
provisions:
(a)Notice of the exercise of an option to extend shall be given
no less than one hundred eighty (180) days prior to the then expiration of the
Term of this Lease;
(b) The Term shall be extended under all terms and provisions of
this Lease except that the Rent to be paid hereunder with respect to the first
option to extend shall be equal to the
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Third CPI Adjusted Rent Rate per month plus a percentage of the Third CPI
Adjusted Rent Rate per month, which percentage shall be three-fourths (3/4) of
the percentage increase in the Consumer Price Index between the one hundred
eightieth (180th) month of the Term and the two hundred fortieth (240th) month
of the Term (such increased rent being referred to herein as the "Fourth CPI
Adjusted Rent Rate") and the Rent to be paid hereunder with respect to the
second option to extend shall be equal to the Fourth CPI Adjusted Rent Rate per
month plus a percentage of the Fourth CPI Adjusted Rent Rate per month, which
percentage shall be three-fourths (3/4) of the percentage increase in the
Consumer Price Index between the two hundred fortieth (240th) month of the Term
and the three hundredth (300th) month of the Term.
(c) Upon the request of either party, Landlord and Tenant shall
execute an acknowledgment setting forth the dates of the extended Term of the
Lease and the amount of the Rent for the applicable extension term, but the
failure to execute such acknowledgment shall not affect Tenant's exercise of its
option to extend the Term as provided herein.
41. RECORDATION. This Lease will not be recorded unless Landlord fails to
execute upon request, in recordable form, a Memorandum of Lease in form required
by Tenant's title insurance company.
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IN WITNESS WHEREOF, the parties herein have hereunto caused their duly
authorized representatives to set their hands and seals the day and year first
above written.
LANDLORD:
Signed Sealed and Delivered /s/ Steve L. Rayman
in the presence of: --------------------------- (SEAL)
STEVEN L. RAYMAN
- ------------------------------- /s/ Richard W. Keffer, Jr.
Unofficial Witness --------------------------- (SEAL)
RICHARD W. KEFFER, JR.
- -------------------------------
Notary Public
[Notarial Seal]
My Commission Expires:
- -------------------------------
TENANT:
Signed Sealed and Delivered STEVE RAYMAN NISSAN, INC.a
in the presence of: Georgia Corporation
- --------------------------------
Unofficial Witness
By: /s/ Steve L. Rayman
------------------------
Name: Steve L. Rayman
------------------------
- -------------------------------- Title:
Notary Public ------------------------
Attest:
[Notarial Seal] By:
------------------------
Name:
------------------------
My Commission Expires: Title:
------------------------
- ------------------------------
[Corporate Seal]
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