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EXHIBIT 10.9
FIRST AMENDMENT TO TWENTY-YEAR
NET LEASE AGREEMENT
THIS FIRST AMENDMENT TO TWENTY-YEAR NET LEASE AGREEMENT is made and
entered into as of the 15 day of July, 1984, by and between WINCO LTD., a
Georgia limited partnership having Walter M. Boomershine, Jr. and Mrs. WINIFRED
F. BOOMERSHINE as its only general partners (hereafter called "Lessor") and
BOOMERSHINE PONTIAC, INC., a corporation organized and existing under the laws
of the State of Georgia (hereinafter called "Lessee);
WITNESSETH THAT:
WHEREAS, Lessee and Lessor have previously entered into that certain
Twenty-Year Net Lease Agreement made as of September 16, 1978, and executed
October 4, 1978 (the aforesaid instrument being hereinafter called the "Lease
Agreement"); and
WHEREAS, Lessor and Lessee desire to amend the Lease Agreement;
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Lessor and Lessee hereby covenant and agree as
follows:
1.
Section 2.1 of the Lease Agreement is amended so as to provide that the
Demised Term shall end December 31, 1999.
2.
The Lease Agreement is amended so as to add Section 2.3 as follows:
"Section 2.3. Lessor has the right, from and after September
30, 1994 and upon sixty (60) days' prior written notice to Lessee, to
terminate the Lease Agreement upon the satisfaction and cancellation of
that certain Deed to Secure Debt and Security Agreement dated October
4, 1978, and recorded in Deed Book 1933, Page 793, Cobb County,
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Georgia records. In the event Lessor terminates the Lease Agreement
prior to December 31, 1999, Lessee shall receive credit for the portion
of the December, 1999 monthly rental installment paid as provided in
Section 3.1."
3.
The Lease Agreement is amended so as to delete Section 3.1 and insert
in lieu thereof the following:
"Section 3.1. Lessee covenants and agrees to pay to Lessor
during the Demised Term the amounts indicated below for the designated
portions of the Demised Term as rent for the Demised Term which sums
shall be due and payable in the indicated monthly installments, each
such installment to be due and payable promptly in advance on the first
day of each month commencing July 1, 1984, and continuing on the first
day of each subsequent month throughout the remainder of the Demised
Term except that Lessee has paid Lessor $15,125.00 of the December,
1999, installment, on or before the execution hereof:
Portion of Demised Annual Monthly Rental
Term Rent Installment
------------------ ------ --------------
September 16, 1978 through Not Applicable $5,750.00
September 30, 1978 ($11,500 monthly
rental installment
prorated as set
forth in Section
3.2)
October 1, 1978 through $138,000.00 $11,500.00
September 30, 1979
October 1, 1979. through $150,000.00 $12,500.00
September 30, 1983
October 1, 1983 through $165,000.00 $13,750.00
June 30, 1984
July 1, 1984 through $239,400.00 $19,950.00
September 30, 1985
October 1, 1985 through $243,000.00 $20,250.00
September 30, 1987
October 1, 1987 through $246,600.00 $20, 550.00
September 30, 1988
October 1, 1988 through $263,100.00 $21,925.00
September 30, 1989
October 1, 1989 through $271,500.00 $22,625.00"
December 31, 1999
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4.
Section 14.4 of the Lease Agreement is amended so as to add the
following:
"Notwithstanding the foregoing, Lessor does covenant and agree
to cause the Deed to Secure Debt and Security Agreement dated October
4, 1978, recorded in Deed Book 1933, Page 793, Cobb County, Georgia
records to be amended so as to secure the indebtedness evidenced by the
note and all renewals and modifications thereto in the original amount
of $300,00.00 from Lessee to The Citizens and Southern National Bank,
the note to bear interest at the rate Or 12.80% with monthly payments
amortized over 15 years with a 10 year call. Lessor acknowledges that
the foregoing agreement to encumber the underlying fee interest in the
Demised Premises is part of the business of Lessor authorized under its
limited partnership agreement."
Except as amended and modified hereby the Lease Agreement
shall otherwise remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
affixed their seals as of the 13 day of July, 1984.
LESSOR:
WINCO LTD.,
a Georgia limited partnership
As to Lessor, /s/ Walter M. Boomershine Jr. (SEAL)
signed, sealed and --------------------------------
delivered in the WALTER M. BOOMERSHINE, JR.
presence of:
/s/
---------------------
Unofficial Witness /S/ Mrs Winifred F. Boomershine (SEAL)
--------------------------------
Notary Public Georgia MRS. WINIFRED F. BOOMERSHINE
State at Large Being the only general partners
My Commission Expires of Winco Ltd.
/s/
---------------------
Notary Public
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LESSEE:
------
BOOMERSHINE PONTIAC, INC.,
a Georgia corporation
As to Lessee,
signed, sealed and By: /s/ Charles V. Mancey
delivered in the -----------------------------------
presence of:
Title: SEC Treasurer
-----------------------------
Attest: /s/ David Pallard
-------------------------------
Title: OFFICE MGR.
/s/ Robert Andrew Williams ----------------------------
- --------------------------
Unofficial Witness
/s/
- ---------------------------
Notary Public
Notary Public, Georgia State at Large
My Commission Expires Apr 1, 1998
[CORPORATE SEAL]
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TWENTY-YEAR NET
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made as of the 16th day of September,
1978 and executed this 4 day of October, 1978, by and between WINCO LTD., a
Georgia limited partnership having Walter M. Boomershine, Jr. and Mrs. Winifred
F. Boomershine as its only general partners (hereinafter called "Lessor"), and
BOOMERSHINE PONTIAC, INC., a corporation organized and existing under the laws
of the State of Georgia (hereinafter called "Lessee");
W I T N E S S E T H:
THAT for and in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto,
Lessor and Lessee covenant and agree as follows:
ARTICLE 1
Premises
Section 1.1. Lessor hereby agrees to lease and does hereby lease and
demise unto Lessee the real property described in Exhibit "A" attached hereto
and by this reference made a part hereof, together with all improvements
thereon, less and except those items set forth on Exhibit "B" attached hereto
and by this reference made a part hereof, and together with all and singular the
tenements, hereditaments, appurtenances, and privileges "hereunto belonging or
in any way appertaining thereto, the aforesaid real property and improvements
being hereinafter called "Demised Premises";
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TO HAVE AND TO HOLD, subject to the terms and conditions hereinafter
set forth, for the Demised Term (as hereinafter defined) unless sooner
terminated as provided herein.
Section 1.2. No easements are retained by Lessor, all of the right,
title, interest and attachments of the Lessor in and to the Demised Premises
being leased hereby by Lessee. No personal property is included in this Lease.
ARTICLE 2
Term
Section 2.1. The demised term of this Lease shall be a period of twenty
(20) calendar years and fifteen (15) days (hereinafter called "Demised Term"),
and shall commence on September 16, 1978, and terminate at midnight on September
30, 1998, unless sooner terminated as herein provided.
Section 2.2. The Demised Term shall not be renewed or extended, by
operation of law or otherwise, without the prior written agreement of Lessor and
Lessee.
ARTICLE 3
Rent
Section 3.1. Lessee covenants and agrees to pay to Lessor during the
Demised Term the amounts indicated below for the designated portions of the
Demised Term as rent for the Demised Term which sums shall be due and payable in
the indicated monthly installments, each such installment to be due and payable
promptly in advance on the first day of each month commencing November 1, 1978
and continuing on the first day of
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each subsequent month throughout the remainder of the Demised Term, except that
Lessee shall pay Lessor the monthly rental installments for September, 1978,
October, 1978 and September, 1998 on or before the execution
thereof:
Portion of Demised Annual Monthly Rental
Term Rent Installment
------------------ ------ --------------
September 16, 1978 through Not applicable $ 5750.00
September 30, 1978 ($11,500 monthly
rental installment
prorated as set
forth in Section 3.2)
October 1, 1978 through $138,000.00 $11,500.00
September 30, 1919
October 1, 1979 through $150,000.00 $12,500.00
September 30, 1983
October 1, 1983 through $165,000.00 $13,750.00
September 30, 1988
October 1, 1988 through $181,500.00 $15,125.00
September 30,1998
Section 3 2. Lessee shall pay all rental and other sums, if any,
payable by Lessee to Lessor at the principal place of business of Lessor or at
such other place as Lessor shall request in writing delivered to Lessee. Rent
for a partial month during the Demised Term, if any, shall be prorated on a
daily basis.
ARTICLE 4
Repairs and Maintenance by Lessee
Section 4.1. Lessee accepts the Demised Premises in the present
condition as suitable for all purposes of this Lease, and Lessee, at its sole
cost, risk, expense and liability, covenants and agrees to keep and maintain in
good repair the Demised Premises and any improvements now or hereafter located
thereon, in present condition and in compliance with all
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applicable governmental directions, codes, ordinances and regulations. Lessee
covenants and agrees to return the Demised Premises to Lessor at the termination
of Demised Term in same condition as exists at the commencement of Demised Term,
reasonable wear and tear excepted, subject to the provisions of Article 15
hereof. Lessor shall not be obligated to make any repairs or replacements or
maintain the Demised Premises or the improvements thereon during the Demised
Term.
ARTICLE 5
Changes and Alterations by Lessee
Section 5.1. Lessee may, at any time, and from time to time, effect any
reasonable alterations, changes and modifications in or upon the Demised
Premises as Lessee may desire, including, without limitation, major structural
changes, the construction of additional buildings and expansion of existing
buildings or additional buildings, all at Lessee's sole cost, risk, expense and
liability. Lessor's approval shall not be required for any alterations or
changes made by Lessee; provided, however, in the event the changes or
alterations involve major structural changes or additional structures, Lessee
shall submit to Lessor, for approval in advance of the commencement of
construction, copies of the architect's plans and specifications therefor;
Lessor may disapprove such plans and specifications but only if the disapproval
is based upon structural considerations in accordance with sound architectural
or engineering practices, as opposed to considerations such as value, cost,
design, use or aesthetics; or upon substantial reduction in the area available
for vehicular parking on Demised Premises; provided, however, in
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the event of any assignment or sublease in accordance with Article 9 hereof,
Lessor shall have the unrestricted right of approval for any changes or
alterations involving major structural changes or additional structures, if any,
proposed by an assignee or a sublessee. Failure of Lessor to disapprove the
plans and specifications within twenty (20) business days of submission by
Lessee to Lessor shall be deemed to constitute approval thereof. Notice of
disapproval thereof by Lessor shall be accompanied by a statement specifying the
basis for disapproval, and Lessee shall not be authorized to commence
construction until the plans and specifications are modified to the reasonable
satisfaction of Lessor.
ARTICLE 6
Removal of Trade Fixtures, Appliances,
Other Equipment and Improvements
Section 6.1. All trade fixtures, inventory, appliances and other
equipment and personal property existing, placed or installed in or on Demised
Premises prior to or during the Demised Term by Lessee, including, without
limitation, those items enumerated on Exhibit "B" attached hereto, shall remain
the property of Lessee, and may be removed by Lessee at any time during the
Demised Term, or within thirty (30) calendar days subsequent to the expiration
of Demised Term.
ARTICLE 7
Inspection of Demised Premises by Lessor
Section 7.1. Lessor or Lessor's representative shall have the right at
all reasonable times during the Demised Term, upon
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reasonable notice to Lessee, to enter upon any part of the Demised Premises for
the purpose of determining whether the conditions and covenants contained in
this Lease are being kept and performed. The entry shall be conducted during
reasonable business hours and Lessor or Lessor's representative shall conduct
the entry with Lessee or Lessee's representative.
ARTICLE 8
Utilities
Section 8.1. Lessee shall pay costs of all utilities furnished to the
Demised Premises including; but not limited to, water, gas and electricity,
during the Demised Term.
ARTICLE 9
Assignment and Sublease by Lessee
Section 9.1. Lessee may, without the requirement of any notice to or
approval by Lessor or any mortgagee of Lessor, sublet, assign or encumber this
Lease in whole or in part to any person or persons, natural or corporate
whomsoever. In such event, Lessee shall remain primarily liable for the keeping
and performance of all of its covenants hereunder including, but not limited to,
the prompt and due payment of rent and additional rent. In the event of any
assignment or sublease, Lessor agrees to deliver to the assignee or sublessee a
nondisturbance agreement acknowledging Lessee's continuing primary liability and
the assignee or sublessee's rights and agreeing that this Lease shall remain in
full force and effect as long as all of Lessee's covenants and obligations
hereunder are performed. In the event of any assignment or sublease,
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Lessor, as to any changes and alterations permitted under Article 5 and
undertaken by any assignee or sublessee, shall have the right to require the
assignee or sublessee at its expense to obtain in its favor and in favor of
Lessor payment and performance bonds in a form and an amount reasonably
satisfactory to Lessor and issued by a surety company qualified to do business
in Georgia and reasonably acceptable to Lessor,
ARTICLE 10
Additional Dent
Section 10.1. In addition to all rent as herein provided, Lessee shall
pay on or before the dates the same shall become due and payable, and as
additional rent, all taxes, charges, costs and expenses, or substitutions in
lieu thereof, which Lessee assumes or agrees to pay under this Lease, together
with all interest and penalties that may accrue thereon, land all other damages,
costs and expenses which Lessor may suffer or incur by reason of Lessee's
failure to promptly make agreed payments and any and all other sums which may
become due by reason of any default of Lessee or failure on Lessee's part to
comply with the agreements, terms, covenants and conditions of this Lease on
Lessee's part to be performed. In the event of nonpayment, Lessor shall have the
rights and remedies herein provided for in the case of nonpayment of rent or a
breach of condition.
Section 10.2. The occurrence of any one or more of the following events
shall constitute an event of default:
(a) If Lessee shall totally desert or completely abandon the
Demised Premises and such desertion or abandonment
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shall continue for a period of fifteen calendar (15) days after written notice
by Lessor; or
(b) If Lessee shall default in making payment to Lessor of any
monthly rent, additional rent, or of any money advanced by Lessor and
collectible as additional rent, as and when the same shall become due and
payable and such default in payment shall continue for a period of twenty
calendar (20) days after written notice by Lessor; or
(c) If Lessee shall fail to pay, bond or otherwise discharge
any tax, assessment, water rent, rate or charge, sewer rent or other
governmental imposition, or any other charge or lien against the Demised
Premises which Lessee is required to pay, at least ten calendar (10) days prior
to the expiration of any grace period allowed by law or by the governmental
authority imposing the same and such default shall continue for a period of ten
(10) calendar days after written notice by Lessor or before the issuance of
execution on final judgment following contest by Lessee as provided in Section
11.3; or
(d) If Lessee shall default in complying with any other
agreement, term, covenant or condition of this Lease and such default in
compliance shall continue for a period of thirty (30) calendar days after
written notice by Lessor specifying the claimed default, and Lessee shall not,
in good faith, have commenced, within the thirty day period, to remedy the
default and diligently and continuously proceed therewith; or
(e) If Lessee shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any present or future federal
bankruptcy act or under any similar federal or state law, or shall be
adjudicated a bankrupt or
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become insolvent or shall make an assignment for the benefit of its creditors or
shall admit in writing its inability to pay its debts generally as they become
due; or
(f) If a petition or answer proposing the adjudication of
Lessee as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court
and such petition or answer shall not have been discharged or denied within one
hundred twenty (120) calendar days after the filing thereof; or
(g) If a receiver, trustee, or liquidator of Lessee of all or
substantially all of the assets of Lessee or of Lessee's estate or interest in
the Demised Premises shall be appointed in any proceeding brought against Lessee
and shall not have been discharged within one hundred twenty (120) calendar days
after such appointment or if at any time prior to the discharge of this Lease,
Lessee shall consent to or acquiesce in such appointment: or
(h) If the estate or interest of Lessee in the Demised
Premises or a part thereof shall be levied upon or attached in any proceeding
and such process shall not have been vacated or discharged or security therefor
posted within sixty (60) calendar days after written notice of such levy or
attachment, unless Lessee shall be contesting such levy or attachment in good
faith and such contesting by Lessee operates to suspend the enforcement of such
levy or attachment against the estate or interest of Lessee in the Demised
Premises.
Section 10.3. If Lessee defaults in the performance of any covenants or
obligations of the Lease to be performed by Lessee, Lessor may, after expiration
of the applicable notice
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period set forth in Article 10, or, if in Lessor's reasonable opinion an
emergency exists which could adversely affect Lessor's interest in the Demised
Premises, perform the same without notice for the account and at the expense of
Lessee. If Lessor incurs any expense, including reasonable attorney's fees, in
instituting, prosecuting or defending any action or proceeding by reason of any
default by Lessee, Lessee shall reimburse Lessor the amount of such expense.
Should Lessee, pursuant to this Lease, become obligated to reimburse or
otherwise pay Lessor one or more sums of money in addition to the rent and
additional rent, the amount thereof shall be deemed additional rent and may, at
the option of the Lessor, be added to any subsequent installment of rent due and
payable, in which event Lessor shall have the same remedies for default provided
for non-payment of rent. The provisions of this Section 10.3 shall survive
expiration of the Demised Term.
Section 10.4. Upon the occurrence of any events of default as set forth
in Article 10 and the expiration of the applicable grace or notice periods, and
in the absence of cure or institution of cure of the alleged default as provided
herein, then Lessor may serve a written five (5) calendar day notice of
cancellation and termination of this Lease, and if upon the expiration of said
five (5) days such default has not been remedied, this Lease and the Demised
Term shall end and expire as fully and completely as if the date of expiration
of such five (5) day period were the day herein fixed for the end and expiration
of the Demised Term. The Lessee shall then quit and surrender the Demised
Premises to Lessor as soon as practicable and Lessor may enter into or repossess
the Demised Premises either by force, summary proceedings or otherwise.
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Section 10.5. In the event this Lease is terminated pursuant to Section
10.4 hereof, all of the right, title and estate and interest of the Lessee in
and to the Demised Premises, any improvements thereon made by Lessee, less and
except those items set forth in Exhibit "B" attached hereto which shall belong
to Lessee, and in and to all rents, issues and profits thereof, whether then
accrued or to accrue, and in and to all insurance policies, shall automatically
pass to, vest in and belong to the Lessor, without further action on the part of
either party and without cost or charge to Lessor, free of any claim thereto by
Lessee.
Section 10.6. No receipt of money by Lessor from Lessee after the
termination hereof shall reinstate, continue or extend the term, or affect any
notice theretofore given by Lessor, or operate as a waiver of the right of
Lessor to enforce the payment of any rent and additional rent then due or
thereafter falling due, or operate as a waiver of the right of Lessor to recover
possession of the Demised Premises by proper suit, action, proceeding or other
remedy. After the service of notice of termination by Lessor as herein provided
and the expiration of the time therein specified, or after a final order or
judgment for possession of the Demised Premises, Lessor may demand, receive and
collect any money due, or thereafter falling due, without in any manner
affecting such notice, suit, action, proceeding, order or Judgment, and any and
all such money so collected shall be deemed to be payment on account of the use
and occupation of the Demised Premises or, at the election of Lessor, on account
of Lessee's liability hereunder.
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Section 10.7. In case of any such termination, re-entry or
dispossession by summary proceedings or otherwise, the annual rent and
additional rent and all other charges required to be paid by Lessee hereunder
shall thereupon become due and payable up to the time of such termination,
re-entry or dispossession, and Lessee shall also pay to Lessor all expenses,
brokerage commissions and all other costs reasonably paid or incurred by Lessor
for restoring the Demised Premises to good order and condition.
Section 10.8. Lessor shall use its best efforts to relet the Demised
Premises, in whole or in part, for a term or terms which, at Lessor's option may
be the remainder of the then current term of this Lease, or for any longer or
shorter period. Unless the statute or rule of law which governs the proceeding
in which damages are to be proved limits the amount of damages capable of being
so proved and allowed, in which case Lessor shall be entitled to an amount equal
to, the maximum allowed by any such statute or rule of law, Lessor shall be
entitled to recovery of and from Lessee, damages, payable in monthly
installments, in advance on the first day of each calendar month following such
termination or re-entry, and continuing until the date originally fixed herein
for the expiration of the then current term of this Lease, in an amount equal to
the excess, if any, of the sum of the aggregate expenses paid by Lessor during
the month immediately preceding such calendar month for all such items as, by
the terms of this Lease, are required to be paid by Lessee, plus an amount equal
to the amount of the installment of annual rent which would have been payable by
Lessee hereunder in respect of such calendar month, had this Lease and the
Demised Term not been so
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ARTICLE 11
Taxes and Other Charges
Section 11.1 Lessee shall, without notice or demand, as additional
rent, pay and discharge, on or before the last day on which the same may be paid
without penalty, all taxes, assessments, assessments levied by reason of
restrictive covenants affecting the Demised Premises, rates and charges,
sanitary assessments, and other governmental impositions and charges of every
kind and nature whatsoever, extraordinary as well as ordinary, and each and
every installment thereof together with all interest and penalties thereon,
which shall or may during the Demised Term be levied, assessed or imposed on or
become a lien upon or become due or payable out of or for or by reason of the
use or occupancy of the Demised Premises or any part thereof, the Lessee's or
the Lessor's interest in the Demised Premises and the improvements located
thereon, or any buildings, appurtenances, or equipment now or hereafter erected
or placed thereon or therein or any part thereof, or the sidewalks or streets in
front of or adjoining the Demised Premises. All taxes levied, assessed or
imposed in lieu of or in addition to the foregoing shall be paid by Lessee
together with all interest and penalties thereon, under or by virtue of all
present or future laws, ordinances, requirements, orders, directions, rules or
regulations of the federal, state, county and city or local governments and of
all other governmental authorities whatsoever. Lessee shall pay all taxes and
assessments which shall prior to or during the Demised Term or any renewal term
be levied, assessed or imposed on or become a lien upon the personal property of
Lessee located upon the Demised Premises. Lessee shall be deemed to have
complied with
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for such purpose, Lessee agrees promptly to furnish Lessor with copies of all
correspondence, notices, pleadings and other writings in connection therewith.
Section 11.4. It is expressly agreed, however, that the Lessee shall
not be required to pay, discharge or remove any tax, assessment, tax lien or
other imposition or charge upon or against the Demised Premises, or any part
thereof, or the improvements at any time situated thereon, so long as the Lessee
shall in good faith contest the amount or the validity thereof by appropriate
legal proceedings which shall operate to prevent the collection of the tax,
assessment, tax lien, forfeiture or imposition so contested, or the sale of
Demised Premises or any part thereof, to satisfy the same, and that pending any
such legal proceedings Lessor shall not have the right to pay, remove or
discharge the tax, assessment, tax lien, forfeiture, or imposition thereby
contested.
Section 11.5. Nothing herein contained shall be construed to require
Lessee to pay any inheritance, estate, succession, transfer, gift, franchise,
income, profit or excess profit, capital stock, capital levy, corporate or
unincorporated business tax or other similar tax, that is or may be imposed upon
Lessor, its successors or assigns, or upon the rent payable by lessee.
ARTICLE 12
Insurance
Section 12. Throughout the Demised Term Lessee, at its own cost and
expense, and as additional rent, shall, through an insurance company or
insurance companies qualified to transact
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business tax or other similar tax, that is or may be imposed upon Lessor, its
successors or assigns, or upon the rent payable by Lessee.
ARTICLE 12
Insurance
Section 12.1. Throughout the Demised Term Lessee, at its own cost and
expense, and as additional rent, shall, through an insurance company or
insurance companies qualified to transact business and authorized to write
insurance on risks in the State of Georgia:
(a) Keep the improvements on the Demised Premises insured (in
an amount representing at all times the full insurable value of the
improvements, but in no event shall the amount of insurance at any time be less
than 80% of the fair market value of the improvements existing from time to
time) in the name of Lessor and in the name or names of any and all of Lessor's
mortgagees against loss or damage by fire with extended coverage; and
(b) Keep in force a comprehensive general liability insurance
policy, such, liability policy to be in the amount of not less than $500,000.00
with respect to injury or death of any one person, $1,000,000.00 with respect to
any one accident and $100,000.00 with respect to damage of property.
Section 12.2. All insurance provided by Lessee as required by this
Article 12 shall be carried in favor of Lessor, permitted mortgagees and Lessee
as their respective interests may appear. All policies shall provide that loss,
if any, payable thereunder shall be payable to Lessor and Lessee as their
respective interests may appear.
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Section 12.3. Lessee agrees to deliver to Lessor on date of
commencement of Demised Term true and exact copies of the policies or
certificates of insurance required hereunder to be in the name of Lessor and
certificates of other policies required hereunder. At least twenty (20) business
days prior to the expiration of each such policy, Lessee shall deliver to Lessor
evidence that the policy has been renewed or replaced, and as soon as
practicable thereafter, the new original policy or certificate for renewal or
replacement insurance.
Section 12.4. Lessee shall not violate or knowingly permit to be
violated any of the conditions or provisions of any such policy.
Section 12.5. Lessee and Lessor shall cooperate in connection with the
collection of any insurance monies that may be due in the event of loss, and
Lessee and Lessor shall execute and deliver such proofs of loss and other
instruments which may be required for the purpose of obtaining the recovery of
any such insurance monies. Lessee shall pay all fees and expenses reasonably
incurred in the collection and recovery of any such insurance monies.
Section 12.6. Each such policy (including renewal insurance) or
certificates therefor issued by the insurer shall contain an agreement by the
insurer that such policy shall not be cancelled without at least thirty calendar
(30) days prior written notice to Lessor, and in no event shall such policies be
cancelled by Lessee without Lessor's prior written consent; provided, however,
that nothing herein contained shall prevent Lessee from changing insurance
carriers.
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Section 12.7. Any insurance provided for in this Article 12 may be
effected by a policy or policies of blanket insurance; provided, however, that
the amount of the total insurance allocated to the Demised Premises shall be
such as to furnish in protection the equivalent of separate policies in the
amounts herein required, and provided further that in all other respects, any
such policy or policies shall comply with the other provisions of this Lease. In
any such case it shall not be necessary to deliver the original of any such
blanket policy to Lessor, but Lessor shall be furnished with a certificate or
duplicate of such policy acceptable to Lessor, certified by the applicable
insurance company.
ARTICLE 13
Lessor Not Liable for Injury or Damage
Section 13.1. During the entire Demised Term hereof Lessee shall be
deemed to be in exclusive control and possession of the Demised Premises and
those items set forth in Exhibit "B" attached hereto, and Lessor shall not in
any event whatsoever be liable for any injury or damage to any property or to
any person happening on or about the Demised Premises and in connection with
those items set forth in Exhibit "B" attached hereto, nor for any injury or
damage to the Demised Premises or those items set forth on Exhibit "B" attached
hereto, nor to any property of Lessee, or of any other person except for injury
or damage caused by the negligence of Lessor or by Lessor's breach of this
Lease. The provisions hereof in Article 7 permitting Lessor to enter and inspect
the Demised Premises are made solely for the purpose of enabling Lessor to
become informed as to whether or not Lessee is complying with the agreements,
terms, covenants and conditions hereof.
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Section 13.2. Lessor shall not be liable for any injury or damage to
any person or property in or about the Demised Premises, whether belonging to
Lessee or any other person, caused by any fire, breakage, leakage, defect
(latent or otherwise) or bad condition in any part or portion of the Demised
Premises, or from water, rain or snow that may leak into, issue or flow from
any part of the Demised Premises from the drains, pipes, or plumbing work of
the same, or from any place or quarter, unless such breakage, leakage, defect
or bad condition, injury or damage, may be caused by or result from the
negligence of Lessor or from a breach of this Lease by Lessor.
Section 13.3. In addition to any other indemnities to Lessor
specifically provided for in this Lease, Lessee agrees to protect, defend,
indemnify and save harmless Lessor against and from any and all claims by or on
behalf of any person arising from the operation, conduct or management of, or
from any work or thing whatsoever done in or on the Demised Premises and will
further protect, defend, indemnify and save Lessor harmless against and from
any and all claims arising during the Demised Term from any breach or default
on the part of Lessee in the performance of any covenant or agreement on the
part of the Lessee to be performed, pursuant to the terms of this Lease, and
from and against all costs, expenses and liabilities incurred in or about any
such claim or action or proceedings brought thereon; and in case any action or
proceeding may be brought against Lessor by reason of any such claims, Lessee
upon notice from Lessor covenants to resist or defend such action or proceeding
by and through counsel reasonably satisfactory to Lessor. To the extent that
insurance procured
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by Lessee in accordance with the provisions of this/Lease shall protect,
indemnify and save harmless Lessor, the provisions of this Section 13.3 shall
impose no additional obligation upon Lessee.
ARTICLE 14
Mortgages
Section 14.1. Lessee may, without the requirement of any notice to or
approval by Lessor or any mortgagee of Lessor, encumber the leasehold created
hereby by mortgage; provided that no leasehold mortgaging by Lessee shall
affect the primary liability of Lessee for the keeping and performance of all
of its covenants hereunder including, but not limited to, the prompt and due
payment of rent and additional rent. In the event of such leasehold mortgaging
by Lessee, Lessor agrees, after receipt of a written request from a leasehold
mortgagee, to send copies of all notices to Lessee required or permitted
hereunder to the leasehold mortgagee, and further to permit the leasehold
mortgagee to take any curative action on the part of Lessee to be paid or
performed hereunder and to accept such curative action, provided the same is
accomplished within the applicable time periods required by this Lease.
Section 14.2. Lessor may encumber by mortgage its underlying fee
simple interest in the Demised Premises, subject to the rights of Lessee
hereunder which are and shall remain prior to and senior to any such mortgage
to the extent that a foreclosure of any such mortgage shall not operate to
extinguish this Lease or the rights of Lessee under this Lease; and any such
mortgage shall expressly obligate the mortgagee
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have under this Lease and otherwise, to apply as an offset against the next due
installment or installments' of rent which would otherwise be due and payable
to Lessor, all monies paid in connection therewith plus the reasonable cost of
any other action taken with respect thereto, plus interest thereon at the rate
of nine (9%) per cent per annum and including date or dates of expenditure or
action taken through and including the date or dates of full reimbursement
thereof by Lessor or full reimbursement by means of rental offset.
Section 14.4. Lessor shall not be obligated to subordinate to, or Join
in, or otherwise encumber or affect its underlying fee simple interest in
Demised Premises, with respect to any mortgage or mortgages placed by Lessee on
the leasehold created hereby.
ARTICLE 15
Destruction or Damage
Section 15.1. If during the Demised Term, a substantial portion or all
of the Demised Premises or improvements thereon shall be destroyed or damaged
by fire or by any other cause of whatsoever nature, Lessee shall restore,
rebuild or repair the items destroyed in the event the destruction or damage
occurs on or before September 30, 1996. In the event such destruction or damage
occurs subsequent to September 30, 1996, then in such event Lessee may at
Lessee's option elect not to so restore, rebuild or repair; provided, however,
should Lessee elect not to restore or rebuild or repair as aforesaid, then in
such event Lessee shall at its sole cost and expense raze and remove all such
destroyed or damaged improvements from the Demised
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Premises, not including any foundations thereof, and remove all rubble,
materials and debris therefrom. "Substantial portion" for purposes of this
Lease shall mean so much of Demised Premises as to render them unusable by
Lessee in a commercially reasonable manner.
Section 15.2. Lessee covenants and agrees to effect the necessary
repair, rebuilding or restoration promptly within a reasonable time, all items
or improvements affected to be of no less similar size and value, and of no
less similar design and quality of workmanship as existed immediately prior to
the destruction or damage.
Section 15.3. If during any portion of the Demised Term less than a
substantial portion of the Demised Premises shall be destroyed or damaged by
fire or by any other cause of whatsoever nature, Lessee shall restore, rebuild
or repair the items destroyed, promptly within a reasonable time in accordance
with the standards set forth in Section 15.2.
Section 15.4. Lessee agrees to apply any insurance proceeds received
by Lessee by reason of insurance carried pursuant to Article 12 for the purpose
of restoration, rebuilding or repair required by this Article 15. In the event
of restoration, rebuilding or repair by Lessee pursuant to this Article 15,
Lessor agrees that any insurance proceeds received by Lessor by reason of
insurance carried pursuant to Article 12 shall be held in escrow with a third
party agreeable to Lessor and Lessee for the benefit of Lessee to be applied
toward the restoration, rebuilding or repair. In the event the restoration,
rebuilding or repair work requires more than one month to complete, the escrow
agent shall pay to Lessee, upon
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request of Lessee, no less than once per month, a portion of the insurance
monies in an amount of no less than the costs incurred by Lessee during the
previous month, such costs to be certified by Lessee's architect. The entire
balance of the insurance monies so held shall be paid to Lessee at the time of
completion of the work.
Section 15.5. in the event of destruction or damage which is not
restored, rebuilt or repaired by reason of Lessee's election not to do so,
other than by reason of the retention of insurance proceeds by Lessor's
mortgagee as set forth in Section 15.8, any insurance proceeds received by
Lessor by reason of insurance in favor of Lessor pursuant to Article 12 shall
remain the property of Lessor free of any claim or claims by Lessee thereto.
Excess insurance proceeds received for the restoration, rebuilding or repair of
less than a substantial portion of Demised Premises, if any, shall be the
property of Lessee.
Section 15.6. During such time or times, if any, that Demised Premises
are rendered unusable by Lessee as a site for an automobile dealership
(including, without limitation, an automobile showroom and a servicing
department) as determined solely by Lessee in accordance with the normal
standards for the operation of such a business, by reason of such damage or
destruction, the rent provided in Article 3 shall abate until the same have
been rendered so unusable by Lessee. During such time or times, if any, that
Demised Premises have been damaged or destroyed in part so as not to interfere
with Lessee's use of Demised Premises as aforesaid, the rent provided in
Article 3 shall be reduced by an amount reasonably agreed upon by Lessor and
Lessee until the time of restoration or repair of the partial destruction or
damage.
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Section 15.7. In the event Lessee elects not to restore, rebuild or
repair in accordance with Lessee's option contained in Section 15.1, then in
such event this Lease shall terminate as of the date of Lessee's notice to
Lessor of the aforesaid election.
Section 15.8. Lessee's obligations to repair, rebuild or restore, and
Lessor's obligations to make insurance proceeds available therefor, under the
provisions of this Article 15, are expressly made subject to the agreement by
Lessor's mortgagee to make all applicable insurance proceeds available for the
repair, rebuilding or restoration work. In the event Lessor's mortgagee fails
to make all applicable insurance proceeds so available, then in such event
Lessee, at Lessee's option, may declare this Lease terminated and of no further
force or effect. Under absolutely no circumstances shall Lessee be required
hereunder, without Lessee's consent, to effect any repair, rebuilding or
restoration work absent the application of all available insurance proceeds to
the work without restriction or interference by Lessor or Lessor's mortgagee.
If the insurance proceeds exceed the balance of the aforesaid indebtedness from
Lessor to Lessor's mortgagee, and in the events (a) Lessor's mortgagee, under
the terms of its mortgage, elects to apply a portion of the insurance proceeds
to the payment of the indebtedness, and (b) Lessee elects not to repair,
restore, or rebuild in accordance with this Section 15.8, resulting in the
termination of this Lease, then in such two events the aforesaid excess
insurance proceeds shall be the property of Lessee and shall be paid to Lessee.
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ARTICLE 16
Eminent Domain
Section 16.1. In the event the Demised Premises shall be taken by or
pursuant to any governmental authority or through the exercise of the right of
eminent domain, Lessor and Lessee shall Join and cooperate in resisting such
proceeding if such resistance is feasible and desirable to Lessor and Lessee,
and if it is not, shall join and cooperate in prosecuting their respective
claims for damages incurred from the successful exercise of such right or
proceeding. Lessee reserves unto itself all damages awarded which are based
upon its leasehold interest and ownership of trade fixtures, signs, inventory,
equipment, and interruption of business. Lessor reserves unto itself all
damages awarded which are based upon its underlying fee simple title in the
Demised Premises and Lessor's interest in this Lease. In the event that under
applicable law a single condemnation award is made for the taking of the
Demised Premises, the award shall belong to the Lessor except that Lessee shall
receive from the award the total of (1) a sum attributable to Lessee's
improvements or alterations made to Demised Premises by Lessee in accordance
with this Lease, which improvements or alterations Lessee has the right to
remove from Demised Premises pursuant to this Lease but elects not to remove;
(2) a sum attributable to any excess of the market value of Demised Premises
(exclusive of Lessee's improvements or alterations for which Lessee is
compensated under this section) for the remainder of the Demised Term, over the
present value on date of taking of the monthly rent payable under Section 3.1
for the remainder of the Demised Term; and (3) a sum attributable to that
portion of the award
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constituting severance damages for the restoration of Demised Premises.
Section 16.2. If the whole of the Demised Premises shall be taken or
condemned by any competent authority for any public use or purpose, or so much
thereof so that Lessee is prevented from using the Demised Premises as set
forth in Section 15.6, during the Demised Term, all obligations of the Lessee
under this Lease shall cease upon the date of the taking and any unearned rent
paid by Lessee shall be refunded by Lessor to Lessee.
Section 16.3. In the event a portion of the Demised Premises shall be
taken or condemned by any competent authority for any public use or purpose
during the Demised Term which taking or condemnation shall not interfere with
Lessee's use of the Demised Premises as set forth in Section 15.6, then, in
such event, the rent provided in Article 3 shall be reduced by an amount
reasonably agreed upon by Lessor and Lessee by reason of such partial taking or
condemnation.
ARTICLE 17
Lessee's Certificate
Section 17.1. Lessee shall, without charge, at any time and from time
to time, within fifteen (15) calendar days after request by Lessor, deliver a
written instrument to Lessor or any other person, firm or corporation specified
by Lessor duly executed and acknowledged, certifying:
(a) that this Lease is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and effect and
stating any such modification;
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(b) whether the Lessor is in default under the Lease, and if so,
specifying the nature of the default;
(c) whether there are then existing any setoffs or defenses against
the enforcement of any of the agreements, terms, covenants or conditions of
this Lease and any modifications thereof upon the part of Lessee to be
performed or complied with, and, if so, specifying the same; and
(d) the dates to which the rent, additional rent and other charges
hereunder have been paid.
Such certificate shall, and Lessee so acknowledges, be deemed to remain current
(but not more than 30 days after its date) and unchanged unless the party to
which it is addressed receives telephonic or telegraphic notice to the contrary
at a telephone number or address specified to Lessee by the party to which the
certificate is addressed.
ARTICLE 18
Lessor's Certificate
Section 18.1. Lessor shall, without charge, at any time and from time
to time, within fifteen (15) calendar days after request by Lessee, deliver a
written instrument to Lessee or any other person, firm or corporation specified
by Lessee, duly executed and acknowledged, certifying whether Lessee has or has
not, as the case may be, faithfully and fully made all payments then and
theretofore due to Lessor and whether Lessor knows or does not know, as the
case may be, of any default by Lessee in the performance by Lessee of all
agreements, terms, covenants and conditions on Lessee's part to be performed,
and if Lessor does know of any default, specifying the same, and further
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certifying whether Lessor has made any assignment of Lessor's interest in this
Lease.
Such certificate shall, and Lessor so acknowledges, be deemed to remain current
(but not more than 30 days after its date) and unchanged unless the party to
which it is addressed receives telephonic or telegraphic notice to the contrary
at a telephone number or address specified to Lessor by the party to which the
certificate is addressed.
ARTICLE 19
No Waiver
Section 19.1. The failure of Lessor or Lessee to insist upon strict
performance of any of the agreements, terms, covenants and conditions hereof
shall not be deemed a waiver of any rights or remedies that said party may have
against the other and shall not be deemed a waiver of any subsequent breach or
default in any of such agreements, terms, covenants and conditions. A receipt
by Lessor of rent or any other payment or the acceptance by Lessor of
performance by Lessee with knowledge of the breach of a term, covenant,
condition, provision, or agreement of this Lease shall not be deemed a waiver
of such breach. No waiver by either Lessor or Lessee of a term, covenant,
condition, provision, or agreement under this Lease shall be deemed to have
been made unless expressed in writing and signed by the waiving party.
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ARTICLE 20
Notices
Section 20.1. Whenever it is provided herein that notice, demand,
request or other communication shall or may be given to, or served upon, either
of the parties by the other, and whenever either of the parties shall desire to
give or serve upon the other any notice, demand, request or other communication
with respect hereto or the Demised Premises, each such notice, demand, request
or other communication shall be in writing and, any law or statute to the
contrary notwithstanding, shall not be effective for any purpose unless the
same shall be given or served as follows:
(a) If given or served by Lessor, by personal delivery or by mailing
the same in the United States Postal System to Lessee by registered or
certified mail, return receipt requested, postage prepaid, addressed to Lessee,
at 390 Spring Street, N.W., Atlanta, Georgia 30308, or at such other
address or addresses as Lessee may from time to time designate by like notice
given to Lessor;
(b) if given or served by Lessee, by personal delivery or by mailing
the same in the United States Postal System to Lessor by registered or
certified mail, return receipt requested, postage prepaid, addressed at 2150
Cobb Parkway South, Smyrna Georgia 30080, or at such other address or addresses
as Lessor may from time to time designate by like notice given to Lessee.
Every notice, demand, request or other communication hereunder shall
be deemed to have been given or served four (4) calendar days subsequent to the
day the same shall have been
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deposited in the United States Postal System as aforesaid, or upon the day of
receipt of the same by the addressee; whichever shall be the earlier.
Article 21
End of Term
Section 21.1. Except as herein otherwise provided, Lessee shall on the
last day of the Demised Term, or upon the sooner termination of the Demised
Term, peaceably and quietly surrender and deliver up to Lessor the Demised
Premises, together with such improvements as may then be on the Demised
Premises, the improvements to be clean and otherwise in the same condition as
exists at the commencement of Demised Term or as exists upon the date of
completion of construction thereof, as applicable (except for replacement of
destruction or damage, then from time of completion of replacement pursuant to
Article 15) except only for reasonable wear and tear. Nothing in this Article,
however, shall prohibit Lessee from exercising the right or obligation of
removal of the items provided for in Article 6 hereof. Lessee covenants and
agrees to repair any damage occasioned by Lessee's removal of items pursuant to
this Lease.
Section 21.2. Upon such termination all rent under this Lease, all
taxes, tax deposits, water rents, rates and charges, sewer rents and other
governmental impositions and charges, premiums on all insurance policies then
in force and any other items payable as additional rent under this Lease shall
be apportioned as of such termination.
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ARTICLE 22
Quiet Enjoyment; Additional Rights of Lessee
Section 22.1. If and so long as Lessee shall pay the rent and
additional rent reserved by this Lease and shall perform and observe all of the
agreements, terms, covenants and conditions of this Lease on the part of the
Lessee to be performed and observed hereunder, Lessee shall peaceably and
quietly have, hold and enjoy the Demised Premises for the term hereby granted
as against Lessor and persons claiming by, through or under the Lessor.
Section 22.2. Lessor represents that it is the owner of the underlying
fee simple title to the Demised Premises; that it has the right to enter into
this Lease; and that title to the Demised Premises is free and clear of all
liens and encumbrances except for those matters set forth in Exhibit "C"
attached hereto and by this reference made a part hereof.
ARTICLE 23
Net, Net, Net Lease
Section 23.1. This Lease Agreement shall be deemed and construed to be
a "net, net, net lease" and, except as otherwise expressly provided, Lessor
shall receive all rent and additional rent and all other payments hereunder to
be made by Lessee free from any charges, assessments, impositions, expenses or
deductions of any and every kind or nature.
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ARTICLE 24
Entire Agreement
Section 24.1. This Lease contains the entire agreement between the
parties and shall not be modified in any manner except by an instrument in
writing executed by the parties.
ARTICLE 25
Successors and Assign
Section 25.1. The agreements, terms, covenants and conditions herein
shall bind and inure to the benefit of Lessor and Lessee and their respective
heirs, successors, sublessees and assigns, except as otherwise provided herein.
ARTICLE 26
Use of Demised Premises
Section 26.1. Lessee shall not make or suffer any illegal or offensive
use of the Demised Premises or any part thereof and shall not cause or
maintain, or suffer to be caused or maintained, any nuisance in, at, or on the
Demised Premises or any part thereof. The Lessee will obey and, at its own
expense, comply with all lawful requirements, rules, regulations, codes,
directives, and ordinances of all legally constituted authorities existing at
any time during the continuance of this Lease and in any way affecting the
Demised Premises, the use and operation of the Demised Premises, or demolition,
excavation, or construction being done on the Demised Premises. Lessee shall
also, at its sole cost and expense, procure or cause to be procured any and all
permits,
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licenses or other authorizations required for the lawful and proper use,
occupation, and management of the Demised Premises.
ARTICLE 27
Recording of Lease
Section 27.1. Lessor and Lessee agree to execute, upon the request of
either party, with the requisite formalities under Georgia law for the purpose
of recording in the appropriate public records of Cobb County, Georgia, this
Lease for the purpose of giving notice of the existence of this Lease and the
rights of the parties hereto. The party requesting such recordation shall bear
all costs in connection therewith.
ARTICLE 28
Miscellaneous
Section 28.1 Lessor and Lessee acknowledge and agree that no realtor,
broker or agent of any kind is a party to this Lease for any purpose including
fee or commission rights as to any rent or additional rent to be paid
hereunder. Lessor and Lessee each covenant and agree to indemnify and hold
harmless the other party hereto from the payment of all commissions, claims and
related expenses in connection with any realtor, broker or agent engaged by the
indemnifying party, or through which indemnifying party any such claim may be
made or asserted, in connection with the negotiating and procuring of this
Lease.
Section 28.2. No relationship as creditor and debtor between the
parties is created or intended to be created by
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this Lease, the relationship between Lessor and Lessee to be solely that of
lessor and lessee. No security agreements or financing statements under the
Uniform Commercial Code or similar statute naming Lessee as a debtor or
otherwise implying that a debtor-creditor relationship exists between Lessee
and Lessor is authorized hereby or permitted hereunder, it being understood,
however, that the parties do not intend the foregoing to prevent Lessor or
Lessee from granting security interests in their respective interests in the
Demised Premises to third parties.
Section 28.3. In the event this Lease is modified at the request of
and for the benefit of Lessee, all costs, expenses and charges incident to such
modification, including without limitation reasonable counsel fees incurred by
Lessor with respect thereto, shall be paid by Lessee. In the event this Lease
is modified at the request of and for the benefit of Lessor, all costs,
expenses and charges incident to such modification, including without
limitation reasonable counsel fees incurred by Lessee with respect thereto,
shall be paid by Lessor.
Section 28.4. The specified remedies to which Lessor may resort under
the terms of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which Lessor may be lawfully entitled
in case of any breach or threatened breach by Lessee of any of the terms and
provisions of this Lease. In addition to the other remedies to which Lessor may
be entitled, Lessor shall be entitled to the restraint by injunction of the
violation or attempted violation of any of the terms, covenants, conditions,
provisions or agreements of this Lease.
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Section 28.5. This Lease can not be changed, modified, or discharged
orally but only in writing signed by the party against whom enforcement of the
change, modification or discharge is sought.
Section 28.6. Time is of the essence of this Lease.
Section 28.7. The captions and headings throughout this Lease are for
convenience and reference only, and the words contained therein shall in no way
be held or deemed to define, limit, describe, explain, modify, amplify, or add
to the interpretation, construction or meaning of any provision of or the scope
or intent of this Lease.
Section 28.8. This Lease shall be enforced and construed under the
laws of the State of Georgia.
ARTICLE 29
Severability Provision
Section 29.1. Should any term, condition or provision hereof be deemed
or declared invalid or unenforceable by reason of any law or decision or
governmental regulation of any kind or nature whatsoever, by court decree or
otherwise, such invalidity or unenforceability shall not affect or impair the
validity and enforceability of the remaining terms, conditions and provisions
hereof.
ARTICLE 30
Investment Tax Credit
Section 30.1. Lessor and Lessee agree that all depreciable property
investment tax credit with respect to the
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Demised Premises and the operation thereof, under Section 38 of the United
States Internal Revenue Code of 1954, as amended, and the rules and regulations
promulgated pursuant thereto now or hereafter, and under any applicable state
tax laws and regulations, shall belong to and inure to the benefit of Lessee.
Lessee shall determine the property as to which the investment tax credit is
applicable. Lessor agrees upon request of Lessee, at any time and from time to
time, to execute written statements required under the aforesaid tax codes,
laws and regulations in order to evidence and confirm the investment tax credit
in Lessee and the property subject thereto.
IN WITNESS WHEREOF the undersigned have hereunto set their hands and
affixed their seals this 4th day of October, 1978.
LESSOR:
WINCO LTD., a Georgia limited
partnership
/s/ Walter M. Boomershine, Jr. (SEAL)
As to Lessor, signed, -----------------------------------
sealed and delivered WALTER M. BOOMERSHINE, JR.
in the presence of:
/S/ Winifred F. Boomershine (SEAL)
/s/ John R. Parks ------------------------------------
- ------------------------------ MRS. WINIFRED F. BOOMERSHINE
Unofficial Witness Being the only general partners
of Winco Ltd.
/s/ Eunice Harris
- ------------------------------
Notary Public
Notary Public Georgia State at Large
My Commission Expires Apr. 22, 1979
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LESSEE:
BOOMERSHINE PONTIAC) INC., a
Georgia Corporation
As to Lessee, signed, By: /s/
sealed and delivered -------------------------------------
in the presence of: Title: Pres
----------------------------
/s/ John R. Parks
- --------------------------- Attest: /s/ Charles K. Yancey
Unofficial Witness --------------------------------
Title: Sec Treasurer
/s/ Eunice Harris ---------------------------
- ----------------------------
Notary Public [CORPORATE SEAL]
Notary Public, Georgia State at Large
My Commission Expires Apr.22, 1979
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ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 733 and 780,
17th District, 2nd Section, Cobb County, Georgia, being more particularly
bounded and described as follows:
BEGINNING AT A POINT marked by a concrete monument on the southwestern margin
of the right-of-way of U.S. 41 (having a right-of-way width of 200 feet), which
point of beginning is located 689.92 feet southeasterly, as measured along the
southwestern margin of the right-of-way of U.S. 41, from the intersection of
the southwestern margin of the right-of-way of U.S. 41 with the southeastern
margin of the right-of-way of the Smyrna-Roswell Road; THENCE south 37 degrees
25 minutes 38 seconds east along the southwestern margin of the right-of-way of
U.S. 41 a distance of 394.63 feet to a point marked by an iron pin found;
THENCE south 52 degrees 33 minutes 48 seconds west a distance of 1146.05 feet
to a point marked by an iron pin found; THENCE north 28 degrees 53 minutes 38
seconds west a distance of 384.88 feet to a point marked by a concrete monument
found; THENCE north 51 degrees 49 minutes 33 seconds east a distance of 1089.
03 feet to the POINT OF BEGINNING; being as shown and delineated on plat of
survey for Star Pontiac prepared by Paul E. Lee, Georgia Registered Land
Surveyor with Ross/Lee Consulting Engineers, dated August 4, 1977, as last
revised June 30, 1978, and containing 9.94 acres according to the aforesaid
plat.
LAND LOT
17th District 780 parcels 2 & 5
17780-2}
17780-5} in City of Marietta
EXHIBIT "A"
42
1. Outside lighting
2. 48-inch exhaust fan
3. 32 tiedowns in body shop
4. fence
5. heavy duty paving
EXHIBIT B
43
1. The lien of ad valorem taxes for the years 1977 and 1978.
2. A 175 foot Georgia Power Company easement as set forth in that
easement from F. A. Hargrove to Georgia Railway & Power Company dated
April 19, 1912, recorded in Deed Book 00, page 733, Cobb County,
Georgia records and in the easement to Georgia Railway & Power Company
at Deed Book PP page 435, aforesaid records (as shown on that plat of
survey for Star Pontiac dated August 4, 1977, by Paul C. Lee,
registered Surveyor).
3. Usual ancillary easements contained in the Right-of-Way Deed from
John H. Hancock Mutual Life Insurance Company to State Highway Board
of Georgia, dated September 18, 1934, filed September 28, 1935,
recorded in Deed Book 118, page 229, aforesaid records.
4. Drainage easements contained in right-of-way deeds at Deed Book 102,
page 376 and Deed Book 102, page 396, aforesaid records
5. Easement to Georgia Power Company at Deed Book 132, page 380,
aforesaid records.
6. Easement to Southern Bell at Deed Book 105, page 52, aforesaid
records.
7. Right of Georgia Power Company to maintain transmission line as set
forth in deeds at Deed Book 139, page 480,; Deed Book 145, page 63;
Deed Book 178, page 320; Deed Book 180, page 396; Deed Book 197, page
515; and Deed Book 196, page 384, aforesaid records.
8. Easement from Berry Grant, Harriet Grant, (Mrs.) Hattie T. Grant,
Attorney-in-Fact for Bryan M. Grant, Jr. to Georgia Power Company,
dated September 17, 1942, filed September 25, 1942, recorded in Deed
Book 148, page 190, aforesaid records.
9. Right of southern Bell to maintain easement as set forth in deed at
peed Book 196, page 384, aforesaid records.
10. Rights of Boomershine Pontiac, Inc. as lessee under that certain Lease
Agreement made as of September 16, 1978 and executed October 4, 1978
by and between Winco Ltd., as Lessor, and Boomershine Pontiac, Inc. as
Lessee.
11. Plat of survey for Star Pontiac dated August 4, 1977, by Paul C. Lee;
Registered Surveyor shows a branch traversing subject property in a
northerly-southerly direction.
EXHIBIT "C"