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EXHIBIT 10.13
STATE OF GEORGIA
COUNTY OF COBB
This Lease Agreement, made and entered into as of the 16th day of
January, 1996, by and between WINCO, L.P. a Georgia Limited Partnership
(hereinafter called "Lessor"), and BOOMERSHINE NORTH COBB INC., d/b/a
BOOMERSHINE MITSUBISHI, a Georgia corporation (hereinafter called "Lessee");
WITNESSETH:
1. DEMISE OF PREMISES. Lessor leases unto Lessee the premises (hereinafter
called "Premises") located in Cobb County, Georgia, and described in the
exhibit attached hereto and marked "Exhibit A," which exhibit is incorporated
herein by this reference thereto as if fully set out.
2. USE OF PREMISES. The Premises may only be used for operation of a
franchised automobile dealership, and directly related sales and servicing
activities, and shall not be used by anyone for any other purposes without the
prior written consent of Lessor.
3. TERM AND RENEWALS. The initial term of this Lease Agreement shall be for
the period of five (5) years to commence on the 16th day of January, 1996 and
to terminate on the ___ day of ______, 2000. Provided Lessee complies with all
terms and conditions of the within Agreement, Lessee shall have options to
renew the within Lease for three (3) additional terms of five (5) years each on
the same terms and conditions herein except as may be set forth in Section 4
below. If Lessee elects to not exercise such options, notice shall be given at
lease ninety (90) days prior to the expiration of the then current term, and
wherever herein the designation "Term" appears, it shall include any renewal
Term or Terms for which the aforesaid options for renewal have been exercised.
As used herein, the term "Lease Year" shall mean the twelve months period
beginning on the first day of ______ of year one (1) and ending on the ___ day
of ______ of the following year. Failure of Lessee to properly notify Lessor
of the non-exercise of any renewal term shall result in the automatic renewal
thereof for the next term.
4. RENTALS. Lessee shall pay rentals ("Base Rentals") to Lessor as
follows: One Hundred Seventy-Four Thousand Dollars ($174,000.00) per Lease
Year for the years 1995 through the year 2000. Base Rentals for the second
five (5) year period shall be Two Hundred Ten Thousand Dollars ($210,000.00)
per Lease Year. Base Rental for the third five (5) year period shall be Two
Hundred Twenty-Two Thousand Dollars ($222,000.00) per Lease year, and Base
Rentals for the Fourth five (5) year period shall be Two Hundred and
Thirty-Four Thousand Dollars ($234,000.00) per Lease year.
The Base Rentals shall be due and payable in twelve (12) equal monthly
installments of Fourteen Thousand and Five Hundred Dollars ($14,500.00) each,
for the initial five (5) year term; Seventeen Thousand and Five Hundred Dollars
($17,500.00) per months for the second five (5) year term; Eighteen thousand and
Five Hundred Dollars ($18,500.00) per month for the third five (5) year term;
and Nineteen Thousand Five Hundred Dollars ($19,500.00) for the fourth five (5)
year term, all due in advance of the first day of each calendar month for and
during the Term.
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It is the intention of the Lessor and the Lessee that the rentals
hereinabove set forth shall be net, net, net to the Lessor and that all costs,
expenses and obligations of any kind or nature whatsoever (excluding only
principal and interest payments due for Lessor to Lessor's mortgagee) relating
to the Premises shall be borne by the Lessee and Lessee hereby indemnifies the
Lessor against any and all such costs, expenses and obligations. In the event
that the Lessor shall make any expenditure from which the Lessee is
responsible, or which the Lessee should make, then the amount thereof, together
with interest at the lesser of the highest legal rate or prime plus 2% per
annum and costs, may, at the Lessor's election, be added to and shall be due as
additional rental with the next installment of rent.
5. ACCEPTANCE OF PREMISES. Lessee acknowledges that the act of taking
possession of the Premises shall constitute acceptance thereof and conclusive
evidence that Lessee has inspected and examined the entire Premises and utility
installations and that the same were, and are, in good and satisfactory
condition. Notwithstanding the foregoing, upon notice from Lessee, so long as
Lessee is not in default hereunder, (a) Lessor shall be responsible for all
repairs, changes, alterations and additions required to correct any material
defects existing at the date of commencement of the Term hereof, or through the
initial twelve (12) months of the Term, if such material defects are due to
defective materials or workmanship in the original construction of the
Premises; and (b) after said initial twelve (120 month period, Lessor shall
assign to Lessee all of its right, title and interest in and to any rights to
enforce any claim for defective design or construction of the premises.
6. ASSIGNMENT OR SUBLETTING. Lessee shall not have the right to assign the
within Lease or to sublet the Premises in whole or in part, without the prior
written consent of Lessor, which consent shall not be unreasonably withheld.
The passage of control of Lessee to parties other than those who presently
control Lessee shall constitute a permitted assignment of this Lease. Such
consent shall be deemed unreasonably withheld if (a) the proposed assignee or
subtenant has qualified as an automotive franchise representative under
customary forms of agreements for a major manufacturer of motor vehicles, and
(b) Lessee is not in default hereunder. The use provisions relating to this
Lease shall, in any event, remain in full force and effect. Lessee's
obligations hereunder, as well as any guaranties of Lessee's performance
hereunder, in the absence of explicit agreement to the contrary, shall not be
released upon any such assignment or subletting, and Lessee, any guarantors of
Lessee's performance, and such assignee or subtenant shall all, jointly and
severally, be liable for all obligations hereunder. Notwithstanding the above,
Lessee shall not assign the within Lease or sublet the Premises in whole or in
part, without the prior written consent of Lessor's mortgagee, NationsBank of
Georgia, N.A.
7. COMPLIANCE WITH LEGAL AND ENVIRONMENTAL REQUIREMENTS. Lessee shall
comply with all legal and environmental requirements of any governmental or
quasi-governmental body including City, County, State or Federal boards having
jurisdiction thereof, respecting any operation conducted or any equipment,
installations or other property placed upon, in or about the Premises. Lessee
shall neither create nor permit the creation of any nuisance upon, in or about
the Premises, and Lessee shall not make any offensive use thereof. Lessor has
no knowledge of any pending or threatened claim, notice, assessment or other
proceeding relating to the environmental integrity of the premises. Lessor has
heretofore retained the environmental engineering firm of Law Engineering,
Inc., of Atlanta, Georgia to complete an environmental assessment of the
Premises, a copy of which has been delivered to Lessee. Except as indicated
above, Lessor makes no representations as to the environmental integrity of the
Premises. Lessee shall throughout the Term of his Lease, at Lessees' sole cost
and expense, comply with all laws, ordinances and lawful regulations and
requirements of federal, state and municipal governments. Without limiting the
foregoing covenant, Lessee warrants and represent to
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Lessor that the Premises shall be at all times used in full compliance with all
Federal, State and Local environmental laws and regulation, including but not
limited to the Comprehensive Environmental Response Compensation and Liability
Act of 1980 and the Superfund Amendments and Reauthorization Act of 1986 as
amended. If, however, the Lessee shall in good faith desire to contest any such
law, ordinance, regulation or requirement, it shall notify Lessor in writing of
its intention to do so, and it shall not be required to comply therewith so long
as it shall in good faith and at its own cost and expense contest the same or
the validity thereof by appropriate proceedings. Lessee shall indemnify Lessor
from any loss or damage suffered by Lessor because of delay by Lessee in
compliance with any such contested law, ordinance, regulation or requirement,
and Lessor shall refrain from complying with such contested law, ordinance,
regulation or requirement on Lessee's behalf so long as Lessee shall continue to
contest the same. Lessor shall give Lessee such assistance in connection with
any such contest as shall be necessary, reasonable and proper, at no cost or
expense to Lessor, and Lessor agrees to sign and execute for Lessee any
necessary papers or documents for such purpose. In addition, Lessee shall
indemnify and hold Lessor harmless for any and all damages, penalties, fines,
claims, liens, suits, liabilities, costs (including clean-up cost), judgment and
expenses (including reasonable attorneys', consultants', or experts' fees and
expenses) of every kind and nature suffered by or asserted against Lessor as a
direct or indirect result of any warranty or representation made by Lessor in
this Section or any requirement under any law, regulation or ordinance, Local,
State or Federal, which requires the elimination of any hazardous materials,
substances, wastes or other environmentally regulated substances. Lessee's
obligations hereunder to Lessor shall not be limited to any extent by the term
of this Lease, and, as to any act or occurrence prior to termination of said
Lease which gives rise to liability hereunder, but shall continue, survive and
remain in full force and effect notwithstanding termination of said Lease.
8. FIRE INSURANCE. Lessee shall carry at Lessee's expense fire insurance
with extended coverage insuring Lessor and Lessee as their interests may appear
against loss or damage to the buildings or other improvements located on the
Premises and insuring Lessee against loss or damage to Lessee's furnishings,
fixtures, inventory, equipment and other property situated or placed upon, in or
about the Premises with companies and in amounts and with deductibles acceptable
to Lessor. Lessor shall have the right to have the buildings and improvements
insured to their maximum, full replacement cost, insurable value. With respect
to the insurance coverage on the buildings and improvements, the Lessor shall be
named as the insured in such policies and the original policies shall be
delivered to Lessor. With respect to all other insurance required under this
Lease Agreement, memoranda of all policies shall be delivered to Lessor. Lessee
shall further carry at its expense rental (sometimes known as business
interruption) insurance in an amount not less than the sum of the Base Rentals
and Adjustment Rentals for the most recent Lease year, which insurance shall be
payable to Lessor. Lessee shall name mortgagee of Lessor as an additional
insured. All insurance required hereby shall be kept in force during the entire
Term. Notwithstanding the above, all insurance policies provided for herein,
shall be submitted to Lessor's mortgagee, NationsBank of Georgia, N.A., and such
mortgagee shall likewise have the same right of approval that the Lessor has
herein.
9. TAXES AND ASSESSMENTS. Lessor shall timely list the Premises for taxes
but Lessee shall pay assessments of whatever kind or nature assessed against the
Premises. Lessee shall timely list for taxes and pay all tax assessments of
whatever kind or nature assessed against or on Lessee's furnishings, fixtures,
inventory, equipment, leasehold improvements and other property situated or
placed upon, in or about the Premises. Upon reasonable notice to Lessor, Lessee
shall have the right to protest any tax assessment in the name of the Lessor and
as Lessor's agent, but without expense to Lessor. All taxes shall be paid prior
to delinquency.
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10. UTILITIES. Lessee shall pay for all electricity, gas, water, heat and
other utilities consumed or used on the Premises. Lessor shall not be in any
way obligated or responsible for the furnishing of utility services. The lack
of availability of or failure of utility services shall not be deemed
constructive eviction.
11. ADDITIONS, ALTERATIONS, CHANGES AND IMPROVEMENTS. Lessee shall have
the right to make only alterations, changes and improvements in or to the
Premises with Lessor's, and Lessor's mortgagee, NationsBank of Georgia, N.A.,
prior written consent, provided that if such consent is given, all such
alterations, changes and improvements shall be promptly made in a workmanlike
manner, be promptly paid for allowing no liens to attach and shall become the
property of Lessor at the termination of this Lease Agreement. All Lessee's
proposed alterations, changes and improvements must be approved in writing by
Lessor prior to the commencement thereof. Lessee shall have no right to
commence or to cause the commencement of any work prior to delivering to Lessor
documents satisfactory to Lessor indicating that no person, firm or corporation
shall have any right to claim a lien on the Premises by virtue of Lessees' work
and/or the failure to pay therefore. Lessee shall deliver to Lessor, in form
satisfactory to Lessor, prior to the commencement of any work a waiver of liens
signed by all prime contractors, waiving all rights to assert liens, which
shall contain a certification by Lessee that the waiving parties are all of the
prime contractors.
12. REPAIRS. Lessee shall, at Lessee's own expense, keep and maintain the
entire Premises and all parts and systems thereof, including outside walls,
windows and/or plate glass, the roof, and all utility installations and
equipment, in good maintenance, replacement and repair, properly painted and
decorated. All repairs, maintenance and replacement shall be performed in a
prompt, workmanlike manner, shall be promptly paid for by Lessee and no liens
shall be allowed to attach either to the Premise or Lessee's interest therein.
Lessor has no obligation to make any repairs or replacements or to perform any
maintenance. If any lien is asserted against the Premises, based upon any act or
interest of the Lessee or of anyone claiming through it, affecting any material,
machinery, or fixtures used in the construction, repair, or operation by the
Lessee, Lessee shall immediately take whatever action by bonding, deposit or
payments which shall remove the claim of lien or security interest. If Lessee
does not remove the lien within thirty (30) days after notice to it, Lessor may
pay the lien or discharge it by deposit. The amount so paid or deposited, with
interest as provided herein, shall be deemed Additional Rentals under this
Lease, and shall be immediately payable with interest, the default of which
shall be immediately payable with interest, the default of which shall give rise
to the same remedies to Lessor as the case of default of the payment of Base and
any other charges or rentals.
13. SAFE AND SANITARY CONDITION. Lessee shall not permit, allow or cause
any act or deed to be performed upon, in or about the Premises which shall cause
or be likely to cause injury to any person on the Premises, the building or
improvements located thereon, or to any adjoining property. Lessee shall at all
times keep the Premises in a neat and orderly condition and keep the Premises
and the entryways, parking areas, sidewalks and delivery areas (if any)
adjoining the Premises clean and free from rubbish, dirt, snow, standing water
and ice.
14. TRADE FIXTURES. Lessee shall be permitted to install trade fixtures on
the Premises. In addition, Lessee shall be permitted to remove said trade
fixtures from the Premises upon termination of this Lease Agreement; provided
that if Lessee does so remove such trade fixtures. Lessee shall return the
Premises to the same condition as existed at the time of original entry,
ordinary wear and tear excepted. This provision is not
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intended to allow Lessee to remove approved improvements made by Lessee to the
Premises. All such improvements belong to Lessor at the termination hereof and
shall not be removed nor damaged by Lessee's removal of trade fixtures. If
Lessee does not remove the trade fixtures at termination, Lessor shall have the
option either to declare such fixtures abandoned and Lessor the owner thereof
or to demand Lessee remove same at Lessee's expense returning the Premises to
the condition required herein.
15. LESSOR NOT LIABLE FOR DAMAGES OR INJURIES. Lessor shall not be
responsible to Lessee or to any other person, firm, partnership, association
or corporation for damages or injuries by virtue of or arising out of bursted
water pipes, leaks from sprinkler or air conditioning systems, leaks from the
roof, or by virtue of earthquakes, riots, windstorms, overflow of water from
surface drainage, rains, water, fire or by the elements or Acts of God, or by
the neglect of any person, firm partnership, association or corporation. Lessee
shall indemnify and hold Lessor harmless from any and all claims for damages to
person or property to the full extent permitted by law.
16. INDEMNIFICATION. Lessee covenants to indemnify and hold Lessor harmless
from the claims of any and all persons, firms, partnerships, associations and
corporations for the personal injury or damage to property or both arising out
of or in connection with Lessee's use and/or occupancy of the Premises,
including but not limited to any environmental claims. In addition,. Lessee
shall carry public liability insurance in the minimum amount of $2,000,000.00
bodily injury per occurrence and $250,000.00 property damage per occurrence,
and Lessee shall deliver to Lessor memorandum policies of such coverage with
companies satisfactory to Lessor and naming Lessor as additional insured
therein.
17. FIRE OR CASUALTY. If the Premises shall be partially or completely
damaged or destroyed by fire or other casualty, Lessor shall, as soon as
reasonably possible, effect the required repairs and reconstruction of Premises
to place them in substantially the same condition as existed immediately prior
to such damage or destruction but during such time as said repairs or
reconstruction are being made, the rentals hereinabove provided shall not
abate. Any other provisions contained herein notwithstanding, the Lessor shall
be required and obligated to effect repairs or reconstruction only to the
extent of any sums of money, if any, which are received by Lessor under
Lessor's insurance coverage as a direct result of said fire or other casualty.
Should the insurance proceeds be insufficient, the remaining funds necessary
for repair and restoration shall be promptly furnished by Lessee. If at any
time within twelve (12) months before the end of the initial five (5) year
Term, or within twelve (12) months before the end of the initial five (5) year
Renewal Term (whichever is applicable): (a) Lessee has not been served upon
Lessor notice of renewal of extension; (b) the improvements to the Premises are
completely destroyed or as damaged by fire or other casualty, regardless of
whether covered by insurance, so as to render the Premises unfit for their
intended use; and (c) as repair or restoration is not economically feasible,
then, except as provided in the following sentence, either party may terminate
this Lease by written notice to the other within thirty (30) days after the date
of such damage or destruction. Notwithstanding the foregoing, should Lessee
serve upon Lessor irrevocable notice of renewal, then Lessor shall be obligated
to perform as described in this Paragraph 17. If the Lease is so terminated,
all rent shall be apportioned to the date of termination and all insurance
proceeds shall belong to Lessor.
18. WAIVER OF SUBROGATION. Neither Lessor nor Lessee nor anyone claiming by,
through or in their behalf shall have any claim, right or action or right of
subrogation one against the other for or based upon any loss or damage caused
by fire, explosion or other insured casualty (not limited to the foregoing)
relating to the Premises or to any property upon, in, or about the Premises,
whether such fire, explosion or other insured casualty
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shall arise from the negligence of Lessor, Lessee, or their respective agents,
representatives or employees, or otherwise.
19. CONDEMNATION. If the entire Premises are taken or condemned for a public
or quasi-public use (or any transfer is made under threat of condemnation),
then this Lease shall terminate at the later of the vesting of title in the
condemning authority or the acquisition of possession thereby. Rent shall be
apportioned as of that date. Lessee shall have no claim against Lessor for any
of the foregoing. If any part of the Premises shall be taken or condemned for a
public or quasi-public use (or any transfer is made under threat of
condemnation) and a part thereof remains which is reasonably suitable for the
Lessee's use, this Lease shall not terminate, but the rentals payable by the
Lessee shall be adjusted so that the Lessee shall be required to pay for the
remainder of the Term, rentals equitably reduced by the reduction in
tenantability of the Premises. The aforesaid partial condemnation shall be
without prejudice to the rights of either Lessor or Lessee to directly recover
compensation from the condemning authority for any of its loss or damage caused
by such condemnation. Neither Lessor nor Lessee shall have any rights in and to
any part of the award paid for the loss of leasehold rights.
20. SUBORDINATION TO MORTGAGES. From and after Lessee acknowledging that it
has been furnished a non-disturbance agreement in satisfactory form, this Lease
shall be subordinate to the interest of the party furnishing such agreement.
Lessor shall bear all of Lessee's expenses incurred in connection with this
paragraph, including attorney's fees.
21. INSPECTION. Lessor shall have the right at all reasonable to enter and
inspect the Premises.
22. CONDITION OF PREMISES UPON TERMINATION. Upon the termination of this
Lease Agreement, Lessee shall return the Premises to Lessor substantially in
the same conditions received, ordinary wear and tear and approved improvements
excepted.
23. HOLDING OVER. In the event Lessee remains in possession after the
expiration of the Term without the execution of a new lease, Lessee shall
not acquire any right, title or interest in or to the Premises. in such event,
Lessee shall occupy the Premises as a tenant from month-to month and shall
otherwise be subject to all of the conditions, provisions and obligations of
this Lease Agreement insofar as the same shall be applicable.
24. DEFAULT.
(a) Each and every one and all of the following events shall constitute an
Event of Default:
(i) if Lessee files a petition in bankruptcy or insolvency or for
reorganization under a bankruptcy act or voluntarily taken
advantage of any such act or makes an assignment for the benefit
of creditors;
(ii) if involuntary proceedings under any bankruptcy law, insolvency
or receivership action shall be instituted against Lessee, or if
a receiver or trustee shall be appointed for all or
substantially all of the property of Lessee and such proceedings
are not dismissed, or the receivership or trusteeship vacated,
within 10 days after the institution or appointment;
(iii) if Lessee fails to pay any sum due from it in strict accordance
with the provisions of this Lease, and does not make the payment
within ten (10) business days after written notice thereof. For
the purposes hereof, all sums due from Lessee shall constitute
rentals whether denominated as rental or otherwise elsewhere
herein and Lessee has absolutely no right of offset;
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(iv) if Lessee fails to fully perform and comply with each and every
condition and covenant of this Lease Agreement, and such failure of
performance continues for a period of thirty (30) days after notice
thereof;
(v) if Lessee vacates or abandons the Premises;
(vi) if the interest of Lessee is transferred, levied upon or assigned to
any other person, firm or corporation whether voluntarily or
involuntarily except as herein permitted;
(vii) if Lessor, in any three months of any Lease Year, gives any notice
to Lessee pursuant to subparagraphs iii) or iv) above,
notwithstanding Lessee's cure of default within the allowable period
or periods.
b. Upon the occurrence of any Event of Default as set forth above, Lessor
shall have the right, at its option, to utilize any one or more of the
following rights:
(i) to cancel and terminate this Lease Agreement and all interests of
the Lessee hereunder by giving notice of such cancellation and
termination not less than ten (10) days prior to the effective date
of such termination. Upon the expiration of said ten (10) day
period, the Lessee shall have no further rights under this Lease
Agreement (but such cancellation shall not serve to release or
discharge the damages Lessee owes to Lessor); and/or
(ii) to make any payment required to Lessee herein or correct any
condition required to be corrected by Lessee, and Lessor shall have
the right to enter the Premises for the purpose of correcting any
such condition and to remain on the Premises until the complete
correction of of such condition. However, no expenditure by Lessor
on behalf of Lessee shall be deemed to waive or release Lessee's
breach hereof and Lessor shall retain all rights to proceed against
Lessee as set forth herein; and/or
(iii) to reenter the Premises immediately with or without order of court
and without being guilty of trespass, remove the property and
personal of Lessee and store such property in a public warehouse or
such other location selected by Lessor, all at the expense of
Lessee. After such reentry, Lessor shall have the right to terminate
this Lease Agreement by giving ten (10) days notice of termination
to Lessee, but without such notice, the reentry by Lessor shall not
terminate this Lease Agreement. On termination, Lessor may recover
from Lessee all damages resulting from Lessee's breach, including
the cost of recovery of the Premises and placing them in
satisfactory conditions, the value of the Premises for the remainder
of the Term, all of which sums shall be immediately payable to
Lessor from Lessee; and/or
(iv) to relet the Premises or any part thereof for any term, with or
without terminating the Lease, and at such rentals and on such other
terms as Lessor may elect including the right to grant free rental,
and to alter and repair the Premises as Lessor deems necessary.
Should Lessor relate the Premises, Lessee shall pay all expenses of
reletting including brokers' or finders' fees and such reasonable
attorney's fees as Lessor may incur. Lessor shall apply the rent
received from reletting in the following order: (1) to expenses of
reletting; (2) to sums due from Lessee other than sums denominated
in Section 4 above as rentals, and (3) to sums denominated as
rentals in Section 4 above previously due and (4) to sums which were
to become due in the future; and/or
(v) to accelerate the rentals with or without entry; and/or
(vi) all other rights and remedies provided by law to a Lessor with a
defaulting Lessee including all such money damages as Lessor shall
be entitled pursuant to law of damages.
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c. In the event of any conflict between any of the provisions hereof
regarding the amount of time that must elapse without cure after notice of
breach before the same constitutes and Event of Default, then the provisions
establishing the least amount of time to cure after notice shall prevail.
d. Upon any breach hereof, regardless of whether such breach is, or
becomes, an Event of Default; Lessor shall be reimbursed by Lessee for any
attorney's fees incurred by Lessor in connection with such breach.
25. Waiver. No failure by Lessor to exercise any rights hereunder to
which Lessor may be entitled shall be deemed a waiver of Lessor's right to
subsequently exercise same. Lessee shall gain no rights nor become vested with
any power to remain in default under the terms hereof by virtue of Lessor's
failure to timely assert his rights. No acceleration of rentals, regardless of
how often occurring, which Lessor chooses to ignore by thereafter accepting
rental or other performance by Lessee shall constitute a waiver of the right to
thereafter accelerate rentals.
26. Law Applicable. This Lease is entered into in Georgia and shall be
construed under the laws, statutes and ordinances of such jurisdiction.
27. Severability. The provisions hereof are independent covenants and
should any provision or provisions contained in this Lease be declared by a
court or other tribunal of competent jurisdiction to be void, unenforceable or
illegal, then such provision or provisions shall be severable and the remaining
provisions hereof shall remain at Lessor's option in full force and effect.
28. Stamp Tax or Sales Tax on Lease. Should any governmental authority
having jurisdiction over the Premises declare or otherwise assess any tax on
leases or leaseholds whether designated as a stamp tax, sales or otherwise,
then in any of such events, all taxes so declared or charged shall be the
obligation of the Lessee and shall be paid by Lessee to such authority or shall
be promptly paid to Lessor in reimbursement and as additional rental.
29. Easements, Restrictions, Options and Rights of Way. The Premises are
demised subject to all easements, restrictions, options, rights of way and
covenants legally affecting the Premises.
30. Binding Effect and Complete Terms. The terms, covenants, conditions
and agreements herein contained shall be binding upon and inure to the benefit
of and shall be enforceable by Lessor and Lessee and by their respective heirs,
successors and assigns. All negotiations and agreements of Lessor and Lessee
are merged herein. No modification hereof or other purported agreement to the
parties shall enforceable unless the same is in writing and signed by the
Lessor and Lessee.
31. Notices and Written Consents. All notices and written consents
required under this Lease shall be in writing and shall only be deemed properly
served when posted by certified United States mail, postage prepaid, return
receipt requested, addresses to the party to whom directed at the following
address or at such other address as may be from time to time designated in
writing:
To Lessor: Winco, L.P.
c/o Walter M. Boomershine, Jr.
2150 Cobb Parkway
Smyrna, Georgia 30080
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To Lessee: Boomershine North Cobb, Inc.,
d/b/a Boomershine Mitsubishi
c/o Charles K. Yancey
2150 Cobb Parkway
Smyrna, Georgia 30080
Copy to: Stephen C. Whicker, P.C.
6111 Peachtree Dunwoody Road
Building D
Atlanta, Georgia 30328
Notices shall be deemed served upon posting.
32. RENTAL PAYMENTS. All rental payment, until otherwise designated in
writing, shall be made to Lessor at the address above.
33. LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS. Should Lessee, after seven
days' notice from the Lessor, fail to do any of the things required to be done
by it under the provisions of this Lease, Lessor, in addition to any and all
other rights and remedies, may (but shall not be required to) do the same or
cause the same to be done, and the reasonable amount of any money expended by
Lessor in connection therewith shall constitute additional rental due from
Lessee to Lessor and shall be payable as rental on the date for payment of
rentals immediately following such expenditure.
34. RECORDING. This Lease shall not be recorded but a memorandum hereof
may be prepared and may be recorded in the County where the Premises are
located, with recording fees and preparation of memorandum shall contain such
information as is necessary to provide adequate record notice of the existence
of the Lease, including the parties, the term, the property involved and
whether opinions to renew or purchase exist.
35. COVENANT OF TITLE AND QUIET ENJOYMENT. Lessor covenants and warrants
to Lessee that Lessor has full right and lawful authority to enter into this
Lease for the Term hereof and that provided Lessee is not in default hereunder,
Lessee's quiet and peaceable enjoyment of the Premises shall not be disturbed
by anyone claiming through Lessor.
36. CONSTRUCTION OF LEASE. This lease shall not be construed more strictly
against either party regardless of which party is responsible for the
preparation of the same.
37. ESTOPPEL CERTIFICATES. Lessor and Lessee shall certify in writing each
to the other the status of this Lease and the rent payable hereunder, at any
time, upon ten (10) days' written notice. Such certificate shall be in a form
reasonably satisfactory to the prospective purchaser or mortgagee of the fee
title, or assignee of this Lease or subtenant of the Premises.
IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed by
its General Partners under seal, and Lessee has caused this Agreement to be
executed by its officers hereunto duly authorized and has caused its corporate
seal to be hereunto affixed, this the day and year first above written.
[SIGNATURES ON FOLLOWING PAGE]
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WITNESSES: LESSOR:
WINCO, L.P.
/s/ Stephen C. Whicker By: /s/ Walter M. Boomershine, Jr. (SEAL)
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WALTER M. BOOMERSHINE, JR.
GENERAL PARTNER
/s/ Stephen C. Whicker By: /s/ Winifred F. Boomershine (SEAL)
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WINIFRED F. BOOMERSHINE
GENERAL PARTNER
WITNESSES: LESSEE:
BOOMERSHINE NORTH COBB, INC.
/s/ Stephen C. Whicker By: /s/ Charles K. Yancey (SEAL)
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CHARLES K. YANCEY,
SECRETARY TREASURER
ATTEST:
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(CORPORATE SEAL)
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