1
EXHIBIT 10.52
COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT (the "AGREEMENT") is made this 23 day of
April, 1998, and effective as of April 1, 1998 (the "COMMENCEMENT DATE"), by
and between JAMES E. L. PETERS, JR. (hereinafter called "LANDLORD") and
BOOMERSHINE COLLISION CENTERS, INC., a Georgia corporation (hereinafter called
"TENANT").
W I T N E S S E T H
PREMISES
1. Landlord, for and in consideration of the rents, covenants,
agreements and stipulations hereinafter mentioned, provided for and contained
to be paid, kept and performed by Tenant, leases and rents unto Tenant, that
certain building described on EXHIBIT "A" attached hereto and made a part
hereof (the "PREMISES"), along with that certain parcel of real property
owned by the Landlord and more particularly described on EXHIBIT "B" attached
hereto (hereinafter called the "PROPERTY"). Tenant hereby leases and takes
the Premises and the Property "AS-IS" upon the terms and conditions which
hereinafter appear. The No easement for light or air is included in the
Premises. Tenant has satisfied itself as to the suitability of the Premises for
its intended use.
TERM
2.1 GENERAL.
The term of this lease (the "TERM") shall be for a period of five
(5) years commencing on the Commencement Date.
2.2 EXTENSION TERM.
Provided that Tenant is not in uncured material default (which has
not been waived by Landlord) under this Lease, beyond any applicable cure
periods, as of the date upon which Tenant notifies Landlord of its intention to
extend the term of this Lease pursuant to this SECTION, Tenant shall have the
option to extend the term of this Lease for one (1) five (5)-year period (the
"EXTENSION TERM") on the terms and conditions contained herein, including
adjustment of Minimum Rent as provided in SECTION 3.2. Other than as set forth
herein, Tenant shall have no further option to extend this Lease. Exercise of
such extension option shall be by written notice given to Landlord at least
one hundred-eighty (180) days and not more than three hundred-sixty (360) days
prior to the last day of the original Term. Tenant's failure to give timely
notice of exercise of such option shall render the option void. The extension
option under this Section may
1
2
be exercised only by the named Tenant and any permitted assignee or subtenant
of Tenant, and is not assignable to any other person or entity whatsoever.
RENTAL
3.1 MINIMUM RENT.
Beginning on the Commencement Date and continuing during the entire
Term, Tenant shall pay to Landlord minimum rent ("MINIMUM RENT") in the amount
of Twelve Thousand Dollars ($12,000.00) per month. Minimum Rent shall be paid
in advance on or before the first day of each calendar month during the Term.
Upon execution of this Lease, Tenant shall pay to Landlord a deposit in the
amount of Twelve Thousand Dollars ($12,000.00). Such amount shall be held by
Landlord as a security deposit ("SECURITY DEPOSIT"). If Tenant is not in
default, Landlord shall return the balance Security Deposit not used to restore
the Premises and the Tenant Improvements to their original condition, ordinary
wear and tear alone excepted. Such refund shall be made to Tenant within thirty
(30) days after the termination of the Term, or any extension or renewal
thereof. If the first month of the Term shall be a partial month, Minimum Rent
shall be prorated on a daily basis.
3.2 MINIMUM RENT ADJUSTMENT.
Should Tenant exercise its option to extend the initial Term as set
forth in SECTION 2.2 hereinabove, then the monthly Minimum Rent payable during
such option period shall increase, beginning with the first day of the
extension term and on each anniversary thereof thereafter. The initial increase
and each annual increase thereafter shall be in a percentage equal to the
greater of (i) three percent (3.0%) of the Minimum Rent in effect during the
preceding period, or (ii) the percentage increase, if any, in the consumer
price index for Urban Wage Earners and Clerical Workers (1982-1984=100), U.S.
City Average For All Items, as published by the United States Department of
Labor, Bureau of Labor Statistics (the "CPI"). If such CPI is discontinued or
revised during the term hereof, then such other index or computation with which
it is replaced shall be used. The CPI increase, if any, shall be calculated by
comparing the CPI figure for the month immediately preceding the adjustment
date with the CPI figure for the same month of the proceeding year. Landlord
shall submit a statement to Tenant each year of the extension term reflecting
the increase, if any, in the CPI as herein provided. If such statement is
delayed, Tenant shall pay increased Minimum Rent based on the three percent
(3.0%) minimum increase stated above, effective upon the adjustment date, and
shall immediately pay to Landlord any deficiency in rent due upon submission of
said CPI statement.
3.3 NO WAIVER.
Payment by Tenant or receipt by Landlord of a lesser amount than the
Minimum Rent or Additional Rent or other charges due herein may, at Landlord's
sole option, be deemed to be on account of the earliest due rent or other
charges, or deemed to be on account of rent owing for the current period only,
notwithstanding any instructions by or on behalf of Tenant to the contrary,
which instructions shall be null and void, and no endorsement or statement on
any check
2
3
or any letter accompanying any check or other payment as rent or other charges
shall be deemed an accord and satisfaction, and Landlord shall accept such
check or payment without prejudice to Landlord's right to recover the balance
of such rent or other charges or pursue any other remedy in this Lease or in
law or in equity against Tenant.
LATE CHARGES
4. If Landlord fails to receive any payment of Minimum Rent or Additional
Rent (hereinafter defined) within five (5) business days after it becomes due,
Tenant shall pay Landlord, as additional rental, a late charge equal to five
percent (5%) of the overdue amount for each month of the delinquency. The
parties agree that such late charge represents a fair and reasonable estimate
of the costs Landlord will incur by reason of such late payment.
UTILITY BILLS
5. Tenant shall pay all utility bills, including, but not limited to
water, sewer, gas, electricity, fuel, light, and heat bills for the Premises
and the Tenant Improvements (hereinafter defined) and Tenant shall pay all
charges for garbage collection or other sanitary services.
USE OF PREMISES AND TENANT IMPROVEMENTS
6. The Premises and Tenant Improvements shall be used as for automotive
related purposes only and no other purposes. The Premises and Tenant
Improvements shall not be used for any illegal purposes, nor in any manner to
create any nuisance or trespass, nor in any manner to vitiate the insurance or
increase the rate of insurance on the Premises or the Tenant Improvements.
Notwithstanding the foregoing, Tenant (or a permitted subtenant) may utilize a
portion of the Premises or the Tenant Improvements for vehicle sales and/or
leasing.
ABANDONMENT OF THE PREMISES OR TENANT IMPROVEMENTS
7. Tenant agrees to continuously operate in the Premises and Tenant
Improvements, and further agrees not to abandon or vacate the Premises or the
Tenant Improvements during the Term of this Lease, or any extension thereof, and
agrees to use the Premises and Tenant Improvements for the purposes herein
leased until the expiration hereof.
INDEMNITY; INSURANCE
8.1 Indemnity.
Tenant shall indemnify, defend, protect and save harmless Landlord, and
Landlord's officers, directors, employees, agents, contractors and customers
(collectively, the "LANDLORD INDEMNITIES") from and against any claim, loss,
liability, damage, cost, expense, attorney's fees, suit or judgment, arising
out of or connection with (i) the condition, use, occupancy, management, or
control of the Premises or the Tenant Improvements, (ii) any default of Tenant
under the terms of this Lease, (iii) the negligent acts or omissions of Tenant,
its agents, independent contractors,
3
4
suppliers, officers, directors, employees, guests, or invitees, and (iv) any
claims by Tenant's employees, agents, representatives, or invitees of personal
injury, however caused, to the extent the same is covered or required to be
covered by workers' compensation insurance. The above indemnity shall not apply
to the extent the claim is directly caused by the gross negligence or wilful and
intentional act of Landlord. Tenant shall, at its own cost and expense, defend
any and all suits or other actions which may be brought against any Landlord
Indemnitee either alone or in conjunction with others upon any such
above-mentioned cause or claim, and shall satisfy, pay, and discharge any and
all judgments that may be recovered against any Landlord Indemnitee in any such
action or actions in which a Landlord Indemnitee may be a party defendant.
Supplementing the foregoing and in addition thereto, Tenant shall at all times
during the Term of this Lease and any extension or renewal thereof, and at
Tenant's expense, maintain in full force and effect comprehensive general
liability insurance with limits of $1,000,000.00 per person and $1,000,000.00
per occurrence, and property damage limits of $1,000,000.00, which insurance
shall contain a special endorsement recognizing and insuring any liability
accruing to Tenant under the first sentence of this SECTION, and naming
Landlord as additional insured. Tenant shall provide evidence of such insurance
to Landlord prior to the commencement of the Term of this Lease and shall give
Landlord written notice thirty (30) days before expiration or termination of
any such policy. All policies of insurance required hereunder shall contain an
endorsement providing that the insurer will not cancel or amend the policy or
policies without first giving at least thirty (30) days prior written notice
thereof to Landlord. Landlord and Tenant each hereby release and relieve the
other, and waive its right of recovery, for loss or damage arising out of or
incident to the perils insured against which perils occur in, on or about the
Premises and the Tenant Improvements (hereinafter defined), whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors and/or
invitees, to the extent that such loss or damage is within the policy limits of
said comprehensive general liability insurance. Landlord and Tenant shall, upon
obtaining the policies of insurance required, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is contained
in this Lease.
8.2 INSURANCE.
Tenant agrees to pay directly Landlord's reasonable cost of carrying
fire and extended coverage insurance and general liability insurance
("INSURANCE") on the Premises, the Property and the Tenant Improvements
(hereinafter defined). Semi-annually Landlord shall submit an invoice to Tenant
for the amount which will be due and payable for that particular period, and
payment to the insurance company shall be due within ten (10) days of
submission of such invoice. The Insurance account of Tenant shall be reconciled
annually.
PROPERTY TAXES
9.1 PERSONAL PROPERTY TAXES.
Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Premises and the Tenant Improvements
(hereinafter defined). If any such personal property taxes of Tenant are levied
against Landlord or Landlord's property and if
4
5
Landlord elects to pay the same or if the assessed value of Landlord's property
is increased by inclusion of personal property and trade fixtures placed by
Tenant in the Premises and the Tenant Improvements (hereinafter defined), and
Landlord elects to pay the taxes based on such increase, Tenant shall pay to
Landlord its proportionate share of such taxes within ten (10) days after
written notice from Landlord setting forth the amount of such taxes applicable
Property together with a copy of the tax bill and other evidence documenting
that such tax is properly payable by Tenant.
9.2 REAL PROPERTY TAXES.
Tenant agrees to pay directly all taxes, assessments, and
governmental charges of any kind and nature whatsoever (hereinafter
collectively referred to as the "Taxes"), levied or assessed against the
Premises, the Property, and the Tenant Improvements (hereinafter defined).
Annually, Landlord shall submit an invoice to Tenant for the amount of taxes
which will be due and payable for that particular year based on the amount of
such taxes due the preceding year, and Tenant shall pay such invoice within ten
(10) days of submission of such invoice. The Tax account of Tenant shall be
reconciled annually. If the Tenant's total Tax payments are less than the
actual Taxes on the Premises, the Property and the Tenant Improvements
(hereinafter defined). Tenant shall pay to Landlord the difference within ten
(10) days after written demand together with paid receipts and such other
information as Tenant shall reasonably request; if the total Tax payments of
Tenant are more than the actual Taxes on the Premises, the Property and the
Tenant Improvements (hereinafter defined). Landlord shall promptly refund such
excess. Notwithstanding anything contained herein to the contrary, Tenant shall
not be required to pay any income, estate, corporate, inheritance, succession,
business or transfer tax of Landlord. Upon Lease termination, Landlord will
promptly refund to Tenant its pro rata portion of real property taxes for the
portion of the year Tenant will not be occupying the Premises.
9.3 FAILURE TO PAY.
If Tenant should fail to timely pay (i) any insurance premiums as set
forth in Section 8.2 hereinabove, or (ii) any Additional Rent when due and
required to be paid by Tenant hereunder, in addition to any other remedies
provided herein, Landlord may, if it so elects, pay such amounts and charges.
Any sums so paid by Landlord shall be deemed to be so much additional rent
owing by Tenant to Landlord and shall be due and payable ten (10) days after
written demand, plus interest accruing at the rate of eighteen percent (18%)
per annum from the date of payment by Landlord until repaid by Tenant. Failure
to pay (i) insurance premiums as set forth in Section 8.2, or (ii) Additional
Rent shall also constitute a material default of this Lease.
9.4 CHANGE OF TAXING METHODOLOGY.
If at any time during the Term of this Lease, or any extension or
renewal hereof, the present method of taxation shall be changed so that in lieu
of the whole or any part of any taxes, assessments, levies, or charges levied,
assessed, or imposed on real estate and the improvements thereon, there shall
be levied, assessed, or imposed on Landlord a capital levy or other tax
directly on the rents received therefrom and/or a franchise tax, assessment,
levy, or charge measured by or
5
6
based, shall be deemed to be included within the term "Taxes" for the purposes
hereof, but only to the extent that any such change in the present method of
taxation or assessment is in lieu of, a substitute for, or such a supplement
to, taxes as they are now assessed and only to the extent that such taxes would
be payable if the Premises were the only property of Landlord subject to such
taxes or the income from operation of the Premises were Landlord's only income,
as the case may be.
REPAIRS BY LANDLORD
10. Landlord shall have no responsibility whatsoever to make any repairs
to the Premises, the Property or the Tenant Improvements, such obligation being
the sole obligation of Tenant. This Lease is intended by the parties to be a
triple net lease, and Tenant shall timely pay all such expenses of every type
relating to the Premises, the Property and the Tenant Improvements after the
Commencement Date, and Minimum Rent and Additional Rent shall be received by
Landlord without any deduction, set-off, abatement or offset of any kind
whatsoever.
REPAIRS BY TENANT
11. Tenant accepts the Premises and the Property "AS-IS" in their present
condition and as suited for the uses intended by Tenant. Tenant shall,
throughout the initial Term of this Lease, and any extension or renewal
thereof, at its sole expense, keep in good repair the roof, foundations and
exterior walls of the Premises and the Tenant Improvements (inclusive of all
glass and exterior doors) and underground utility and sewer pipes outside the
exterior walls of the Premises and the Tenant Improvements. Without limiting
the generality of the foregoing, Tenant will keep the interior of the Premises
and the Tenant Improvements, together with all electrical, plumbing and other
mechanical installations therein in good order and repair. Tenant will not
overload the electrical wiring serving the Premises and the Tenant Improvements
or within the Premises and the Tenant Improvements, and will install at its
expense any additional electrical wiring which may be required in connection
with Tenant's apparatus, such wiring and its installation to be in compliance
with all applicable laws, codes, ordinances, and regulations. Further, Tenant
shall provide for the mowing of grass, care of shrubs and general landscaping
and maintenance of the parking area, and proper maintenance, repair and
replacement of the HVAC system. Tenant agrees to return the Premises, the
Property, and the Tenant Improvements to Landlord at the expiration, or prior
termination of this Lease, in as good condition and repair as when first
received, natural wear and tear, damage by storm, fire, lighting, earthquake or
other casualty alone excepted.
TENANT IMPROVEMENTS
12.1 CONSTRUCTION.
Tenant agrees, at its sole cost and expense, to construct on the
Property a building of approximately four thousand six hundred-twenty _____
(4,620) square feet in accordance with plans and specifications approved by
Landlord, using materials and equipment of a quality equal to or better than
the quality used on the existing building on the Property ("TENANT
6
7
IMPROVEMENTS"). It is estimated that the Tenant Improvements shall cost
approximately Two Hundred Fifty Thousand Dollars ($250,000.00). Plans and
specifications for the Tenant Improvements, including the type of materials to
be used by Tenant, must be set forth in detail and submitted to Landlord for
approval within thirty (30) days after full execution of this Lease. Tenant
agrees to commence construction of the Tenant Improvements promptly upon
approval by Landlord of such plans and specifications. All such construction
must be completed by contractors approved by Landlord. All Tenant Improvements
shall conform to all applicable statutes, ordinances, regulations and codes,
and Tenant shall obtain all required permits and licenses therefor. Tenant
shall also comply with such other reasonable rules and regulations concerning
such Tenant work as the Landlord may determine at its sole discretion (e.g.,
installation of chemical extinguishing devices; installation of gas cut-off
devices).
12.2 MECHANIC'S/CONSTRUCTION LIENS
No work performed by Tenant pursuant to this Lease, whether in the
nature of erection, construction, alteration or repair, shall be deemed to be
for the immediate use and benefit of Landlord, so that no mechanic's,
construction or other liens shall be allowed against the estate of Landlord by
reason of any consent given by Landlord to Tenant to construct the Tenant
Improvements or to otherwise improve the Premises and/or the Property. Tenant
shall place such contractual provisions as Landlord may request in all
contracts and subcontracts for Tenant Improvements or other approved
alterations assuring Landlord that no mechanic's or construction liens will be
asserted against Landlord's interest in the Premises, the Tenant Improvements
or the Property. Tenant shall pay promptly all persons furnishing labor or
materials with respect to any work performed by Tenant or its contractors on or
about the Premises, the Property and the Tenant Improvements. If any
mechanic's, construction or other liens shall at any time be filed against the
Premises, the Property, or the Tenant Improvements, by reason of work, labor,
services or materials performed or furnished, or alleged to have been
performed or furnished to Tenant or to anyone holding the Premises, the
Property or the Tenant Improvements through or under Tenant, and regardless of
whether any such lien is asserted against the interest of Landlord or Tenant,
Tenant shall forthwith cause the same to be discharged of record or bonded to
the satisfaction of Landlord. If Tenant shall fail to cause such lien forthwith
to be so discharged or bonded after being notified of the filing thereof, then
in addition to any other right or remedy of Landlord, Landlord may bond over or
discharge the same by paying the amount claimed to be due, and the amount so
paid by Landlord, including reasonable attorney's fees incurred by Landlord
either in defending against such lien or in procuring the bond or discharge of
such lien, together with interest thereon at the rate of twenty-one percent
(21%) per annum, shall be due and payable by Tenant to Landlord as Additional
Rent. All contractors, subcontractors, materialmen, mechanics, laborers and
others contracting with Tenant and/or any other subtenant of Tenant, and/or any
other occupants of the Premises, the Property or the Tenant Improvements for
the erection, construction, installation, alteration or repair of any
improvements to the Premises, the Property or the Tenant Improvements are
hereby charged with notice that they must look only to Tenant and to Tenant's
interest in the Premises, the Property, or the Tenant Improvements to secure the
payment of any charges for work done or materials furnished to the Premises,
the Property, or the Tenant Improvements.
7
8
12.3 FAILURE TO CONSTRUCT TENANT IMPROVEMENTS.
Should Tenant fail to initiate and/or diligently pursue to completion the
construction of the Tenant Improvements as set forth above in this SECTION,
then Landlord shall have the right, but not the obligation, to complete the
Tenant Improvements at its expense and to charge Tenant directly for all costs
of completion of the Tenant Improvements, plus eighteen percent (18%) per annum
interest on all amounts so expended. Any such amount paid by Landlord to
complete the Tenant Improvements shall be represented by a promissory note
executed by Tenant in favor of Landlord, in form and substance reasonably
acceptable to counsel for Landlord. Such promissory note (i) may be prepaid at
any time without penalty or premium, and (ii) shall be amortized over a term
equal to the remaining Term of the Lease.
ALTERATIONS
13. Except as may be otherwise set forth herein, Tenant shall not make
any alterations, additions, or improvements to the Premises, the Tenant
Improvements once completed, or the Property without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. All
approved alterations, additions, and improvements will be accomplished in a
good and workmanlike manner, in conformity with all applicable laws and
regulations.
DESTRUCTION OF OR DAMAGE TO PREMISES
14. If the Premises or the Tenant Improvements are totally destroyed by
storm, fire, lightning, earthquake or other casualty, this Lease shall
terminate as of the date of such destruction and rental shall be accounted for
as between Landlord and Tenant as of that date. If the Premises or the Tenant
Improvements are damaged but not wholly destroyed by any such insured
casualties, rental shall abate in such proportion as use of the Premises or the
Tenant's Improvements has been destroyed and Landlord shall restore Premises or
the Tenant's Improvements to substantially the same condition as before
damage as speedily as is practicable, whereupon full rental shall recommence.
CONDEMNATION
15. If the whole of the Premises and/or the Tenant Improvements, or such
portion thereof as will make the Premises and/or the Tenant Improvements
unusable for the purposes herein leased, are condemned by any legally
constituted authority for any public use or purpose, then in either of said
events the term hereby granted shall cease from the date when possession thereof
is taken by public authorities, and rental shall be accounted for as between
Landlord and Tenant as of said date. Such termination, however, shall be
without prejudice to the rights of either Landlord or Tenant to recover
compensation and damage caused by condemnation from the condemnor. It is
further understood and agreed that neither the Tenant nor Landlord shall have
any rights in any award made to the other by any condemnation authority
notwithstanding the termination of the Lease as herein provided. Any
condemnation proceeds paid pursuant to condemnation of the Tenant Improvements
shall belong to Tenant.
8
9
ASSIGNMENT AND SUBLETTING
16. Tenant shall not, without the prior written consent of Landlord,
assign this Lease or any interest hereunder, or sublet the Premises, the Tenant
Improvements or the Property or any part thereof, or permit the use of the
Premises, the Tenant Improvements or the Property by any party other than the
Tenant. Any attempted transfer in violation of the requirements of this SECTION
shall be null and void and, at the option of Landlord, constitute an Event of
Default that entitles Landlord to terminate this Lease and/or to exercise its
other rights and remedies for such Event of Default. Consent to any assignment
or sublease shall not impair this provision and all later assignments or
subleases shall be made likewise only on the prior written consent of Landlord.
The assignee of Tenant, at option of Landlord, shall become directly liable to
Landlord for all obligations of Tenant hereunder, but no sublease or assignment
by Tenant shall relieve Tenant of any liability hereunder. Notwithstanding the
foregoing, Tenant may sublease all or a portion of the Premises and/or the
Tenant Improvements to an affiliated entity without Landlord's consent.
EVENTS OF DEFAULT
17. The happening of any one or more of the following events (hereinafter
any one of which may be referred to as an "EVENT OF DEFAULT") during the term
of this Lease, or any renewal or extension thereof, shall constitute a material
breach of this Lease on the part of the Tenant: (1) Tenant fails to pay Minimum
Rent, insurance premium payments (as set forth in SECTION 8.2 hereinbelow) or
Additional Rent as provided for herein; (2) Tenant abandons or vacates the
Premises or the Tenant Improvements; (3) Tenant fails to comply with or abide
by and perform any other material obligation imposed upon Tenant under this
Lease including, but not limited to, full and timely completion of the Tenant
Improvements; (4) Tenant is adjudicated bankrupt; (5) a permanent receiver is
appointed for Tenant's property and such receiver is not removed within sixty
(60) days after written notice from Landlord to Tenant to obtain such removal;
(6) Tenant, either voluntarily or involuntarily, takes advantage of any debt or
relief proceedings under any present or future law, whereby the rent or any
part thereof is, or is proposed to be, reduced or payment thereof deferred; (7)
Tenant makes an assignment for benefit of creditors; (8) Tenant's effects are
levied upon or attached under process against Tenant, which is not satisfied or
dissolved within thirty (30) days after written notice from Landlord to Tenant
to obtain satisfaction thereof; or (9) Tenant's attempting to make any transfer
without Landlord's prior written consent to the extent required under SECTION
16.
REMEDIES UPON DEFAULT
18. Upon the occurrence of Event of Default, Landlord may pursue any one
or more of the following remedies separately or concurrently, without prejudice
to any other remedy herein provided or provided by law; (a) if the Event of
Default involves nonpayment of Minimum Rent, the insurance premiums set forth in
SECTION 8.2 or Additional Rent and Tenant fails to cure such default within
five (5) days after receipt or refusal of written notice thereof from Landlord,
or if the Event of Default involves a default in performing any of the terms or
provisions of this Lease other than the payment of Minimum Rent, or Additional
Rent, and Tenant fails to cure such default within thirty (30) days after the
mailing of written notice of default from Landlord, Landlord may
9
10
terminate this Lease by giving written notice to Tenant and upon such
termination shall be entitled to recover from Tenant damages in an amount equal
to all Minimum Rent or Additional Rent which is then due and the present value
(discounted at five percent (5%) per annum) of all Minimum Rent or Additional
Rent which would otherwise have become due throughout the remaining Term of this
Lease, or any renewal or extension thereof (as if this Lease had not been
terminated); or (b) if the Event of Default involves any matter other than those
set forth in item (a) of this Section, Landlord may terminate this Lease by
giving written notice to Tenant, and upon such termination, shall be entitled to
recover from the Tenant damages in an amount equal to all rental which is then
due and the present value (discounted at five percent (5%) annum) of all Minimum
Rent and Additional Rent which would otherwise have become due throughout the
remaining Term of this Lease, or any renewal or extension thereof (as if this
Lease had not been terminated); or (c) upon any Event of Default, Landlord, as
Tenant's agent, without terminating this Lease may enter upon and rent the
Premises, the Property, and the Improvements in whole or in part, at the best
price obtainable by reasonable effort, without advertisement and by private
negotiations and for any term Landlord deems proper, with Tenant being liable to
Landlord for the deficiency, if any, between Tenant's Minimum Rent and
Additional Rent hereunder and the price obtained by Landlord on reletting,
provided, however, that Landlord shall not be considered to be under any duty by
reason of this provision to take any action to mitigate damages by reason of
Tenant's default.
EXTERIOR SIGNS
19. Tenant may place signs upon the outside walls or roof of the Premises
and the Tenant Improvements. Any and all signs placed on the Premises and the
Tenant Improvements by Tenant shall be maintained in compliance with
governmental rules and regulations governing such signs and Tenant shall be
responsible to Landlord for any damage caused by installation, use or
maintenance of said signs, and all damage incident to such removal.
LANDLORD'S ENTRY OF PREMISES AND TENANT IMPROVEMENTS
20. Landlord may card the Premises and the Tenant Improvements "For Rent"
or "For Sale" sixty (60) days before the termination of this Lease. Landlord
may enter the Premises and the Tenant Improvements at reasonable hours to
exhibit same to prospective purchasers or tenants and to make repairs of
Landlord under the terms hereof or to make repairs to Landlord's adjoining
property, if any.
EFFECT OF TERMINATION OF LEASE
21. No termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Landlord's right to collect Minimum
Rent and Additional Rent for the period prior to termination thereof.
MORTGAGEE'S RIGHTS
22. Tenant's rights shall be subject to any bona fide mortgage or deed to
secure debt which is now or may hereafter be placed upon the Premises, the
Property or the Tenant
10
11
Improvements by Landlord. Tenant shall, if requested by Landlord, execute a
separate agreement reflecting such subordination.
QUIET ENJOYMENT
23. So long as Tenant observes and performs the covenants and agreements
contained herein, it shall be all times during the Lease term peacefully and
quietly have and enjoy possession of the Premises, the Property or the Tenant
Improvements, but always subject to the terms hereof.
NO ESTATE IN LAND
24. This Lease shall create the relationship of Landlord and Tenant
between the parties hereto. No estate shall pass out of Landlord. Tenant has
only a usufruct not subject to levy and sale, and not assignable by Tenant
except by Landlord consent.
ATTORNEY'S FEES
25. In the event that any action or proceeding is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant,
the prevailing party in such litigation shall be entitled to recover reasonable
attorney's fees in such action or proceeding.
RIGHTS CUMULATIVE
26. All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative and not restrictive of those given by law.
WAIVER OF RIGHTS
27. No failure of Landlord to exercise any power given Landlord hereunder
or to insist upon strict compliance by Tenant of its obligations hereunder and
no custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of Landlord's right to demand exact compliance with the
terms hereof.
TIME OF ESSENCE
28. Time is of the essence of this Lease.
DEFINITIONS
29. "Landlord" as used in this Lease shall include the undersigned, its
heirs, representative, assigns and successors in title to the Premises, the
Property or the Tenant Improvements. "Tenant" shall include the undersigned and
its representatives, assigns and successors, and if this Lease shall be validly
assigned or sublet, shall include also Tenant's assignees or sublessee as to the
Premises, the Property or the Tenant Improvements covered by such assignment or
sublease.
11
12
NOTICES
30. All notices required or permitted under this Lease shall be in writing
and shall be personally delivered or sent by U.S. Certified Mail, return receipt
requested, postage prepaid. Notices to Tenant shall be delivered or sent to the
address shown below, except that upon Tenant's taking possession of the
Premises, then the Premises shall be Tenant's address for notice purposes. All
notices shall become effective upon receipt or refusal by Tenant or Landlord, as
the case may be. Notices to Landlord and Agent shall be delivered or sent to the
addresses hereinafter stated, to wit:
Landlord: James E. L. Peters, Jr.
3056 Lake Park Drive
Jonesboro, Georgia 30236
with a copy to: Lawrence M. Merlin, Esquire
Erck, Dever & Merlin, LLC
3340 Peachtree Road, N.E.
Suite 2150
Atlanta, Georgia 30326-1084
Tenant: Boomershine Collision Centers, Inc.
----------------------------
----------------------------
with a copy to: David S. Cooper, Esquire
Schnader, Harrison, Segal & Lewis, LLP
Suite 2800, SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3252
ENTIRE AGREEMENT
31. This Lease contains the entire agreement of the parties hereto, and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect.
NO PARTNERSHIP CREATED
32. Landlord is not by virtue of this Lease a partner or joint venturer
with Tenant in connection with the business carried on under this Lease, and
shall have no obligation whatsoever with respect to Tenant's debts or
liabilities or Tenant's employees. The nature of the relationship between
Landlord and Tenant is strictly one of Landlord and Tenant with respect to
Tenant's leasing of the Premises, the Property and the Tenant Improvements.
12
13
INTERPRETATION
33. In interpreting or construing this Lease, it is understood that Tenant
may be one or more than one person or entity, that if the context so requires,
the singular pronoun shall be taken to mean and include the plural, and that
generally all grammatical changes shall be made, assumed, and implied to make
the provisions herein apply equally to corporations, partnerships, limited
liability companies, and individuals. Section headings are for convenience only
and shall in no way affect any of the provisions of this Lease.
MISCELLANEOUS
34.1 SEVERABILITY.
If any provision of this Lease or the application thereof to any
person or entity or circumstance is, at any time or to any extent, held to be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons, entities or circumstances other than those to which
it is held invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.2 SURVIVAL.
All agreements (including, but not limited to, indemnification
agreements) set forth in this Lease, the full performance of which are not
required prior to the expiration or earlier termination of this Lease, shall
survive the expiration or earlier termination of this Lease and shall be fully
enforceable thereafter.
34.3 ATTORNMENT.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or trust deed
made by Landlord covering the Premises, the Property or the Tenant
Improvements, Tenant shall attorn to the purchaser upon any such foreclosure or
sale and recognize such purchaser as Landlord under this Lease.
34.4 GOVERNING LAW.
This Lease shall be governed by and construed in accordance with the
internal laws of the state of Georgia, without regard to principles of
conflicts of laws.
34.5 COUNTERPARTS.
This Lease may be executed in counterparts, which when taken together
shall constitute an original.
13
14
34.6 RESTRICTIONS.
This Lease is subject to all easements, restrictions, agreements of
record, mortgages and deeds of trust, zoning and building laws, and all other
laws, statutes, codes, ordinances, rules, regulations and other governmental
requirements now in effect or becoming effective after the date this Lease is
executed.
34.7 AUTHORITY.
The person executing this Lease on behalf of Tenant hereby covenants
and warrants that the execution of this Lease is duly authorized by Tenant, and
that the persons signing on behalf of Tenant was authorized by Tenant to bind
Tenant to this Lease.
34.8 LANDLORD DEFAULT.
Landlord shall not be considered in default of any obligation under
this Lease unless Landlord fails to perform such obligation within a reasonable
period of time after receipt of written notice by Landlord from Tenant
specifying the non-performance at issue. A reasonable period of time shall mean
the greater of thirty (30) days or such longer period of time as may be
reasonably necessary to effect performance of such obligation.
34.9 NON-RECOURSE LEASE.
The liability of Landlord under this Lease shall be limited in all
circumstances to Landlord's interest in the Premises, the Tenant Improvements
and the Property, and any judgment against Landlord shall be enforceable solely
against Landlord's interest in the Premises, the Tenant Improvements and the
Property.
34.10 TRANSFER BY LANDLORD.
In the event the original Landlord hereunder, or any successor owner
of the Premises, the Tenant Improvements or the Property, shall sell, convey or
otherwise transfer its interest in the Premises, the Tenant Improvements or the
Property, all liabilities and obligations on the part of the original Landlord,
or any successor owner, under this Lease accruing thereafter shall terminate.
All liabilities and obligations of Landlord accruing thereafter shall be
binding upon the new owner, and Landlord shall transfer any Security Deposit
received from Tenant to such successor.
34.11 ESTOPPEL CERTIFICATE.
Tenant shall from time to time, within ten (10) days following
Tenant's receipt of Landlord's written request, deliver to Landlord, or to any
person designated by Landlord, a statement in writing, in the form submitted to
Tenant by Landlord, certifying whether this Lease is unmodified and in full
force and effect, the dates to which rent or other sums and charges payable
hereunder have been paid, that there are no defaults or events which, with
notice and passage of
14
15
time may become defaults under this Lease (or specifying any such defaults or
events), and any other information concerning this Lease as Landlord reasonably
requests.
34.12 LANDLORD'S RIGHT TO CURE DEFAULT.
If Tenant shall fail to perform any of the covenants or obligations
to be performed by Tenant, Landlord, in addition to all other remedies provided
herein, shall have the option (but not the obligation) to cure such default.
All of Landlord's expenditures incurred to correct the default shall be
reimbursed by Tenant upon demand with interest from the date of expenditure at
the rate of twenty-one percent (21%) per annum. Landlord's right to cure
defaults is for the sole protection of Landlord, and the existence of this
right shall not release Tenant from the obligation to perform all of the
covenants herein provided to be performed by Tenant, or deprive Landlord of any
other right which Landlord may have by reason of such default by Tenant.
34.13 INSPECTION.
Landlord and Landlord's agents and representatives, shall have the
right to enter the Premises, the Tenant Improvements and the Property at any
time to determine Tenant's compliance with this Lease, to post notices of
non-responsibility, to show the Premises, the Tenant Improvements and the
Property to any prospective tenants or purchasers, or for any other lawful
purpose. Tenant shall at all times provide Landlord with a key to all doors at
the Premises and the Tenant Improvements and with access codes where security
systems are deployed. Tenant shall have no claim for abatement of rent or
otherwise for any disturbance or interruption resulting from Landlord's entry
for such purposes.
34.14 SUBORDINATION.
Tenant's interest hereunder shall be automatically subject and
subordinate to all ground leases, mortgages, trust deeds, and other financing
and security instruments placed on the Premises, the Tenant Improvements, and
the Property by Landlord from time to time ("MORTGAGES"). The provisions of
this SECTION shall be self-operating. Notwithstanding the foregoing, Tenant
agrees upon demand to execute such further instruments subordinating this Lease
as Landlord may reasonably request. Landlord shall, at Tenant's written
request, obtain from the holders of its Mortgages subordination,
non-disturbance, and attornment agreements regarding their Mortgages on such
holder's standard form, which Tenant shall in turn execute and delivery.
34.15 REMOVAL OF TENANT IMPROVEMENTS AND TRADE FIXTURES.
All leasehold improvements, including the Tenant Improvements (as
distinguished from trade fixtures and apparatus) installed or constructed on or
about the Property at any time, whether by or on behalf of Tenant or by or on
behalf of Landlord, shall not be removed from the Property at any time, unless
such removal is consented to in writing in advance by Landlord; and at the
expiration or earlier termination of this Lease, all such leasehold
improvements, including the Tenant Improvements, shall be deemed to be part of
the Property, shall not be removed by Tenant when it vacates the Premises and
the Tenant Improvements, and title thereto shall vest solely in
15
16
Landlord without payment of any nature to Tenant. All trade fixtures and
apparatus (as distinguished from leasehold improvements,including the Tenant
Improvements), owned by Tenant and installed in the Premises, the Tenant
Improvements or on the Property shall remain the property of Tenant and shall be
removable at any time, including upon the expiration of the Term; provided
Tenant shall not at such time be in default of any terms and covenants of this
Lease, and provided further that Tenant shall repair any damage to the Premises,
the Property and the Tenant Improvements caused by the removal of said trade
fixtures and apparatus and shall restore the Premises, the Property and the
Tenant Improvements to substantially the same condition as existed prior to the
installation of said trade fixtures and apparatus. The provisions of this
Section shall survive the expiration of termination of this Lease.
34.16 HOLDOVER.
If Tenant does not vacate the Premises, the Property and the Tenant
Improvements at the time required, Landlord shall have the option to treat
Tenant as a Tenant from month-to-month, subject to all of the provisions of this
Lease except the provision for the term, and except the Minimum Rent and
Additional Rent provided herein shall double during the period of the
month-to-month tenancy. Failure of Tenant to remove fixtures, furniture,
furnishings or trade fixtures which Tenant is required to remove under this
Lease shall constitute a failure to vacate to which this SECTION shall apply if
the property not removed will substantially interfere with the occupancy of the
Premises, the Property and the Tenant Improvements by another tenant or with
occupancy by Landlord for any purpose including preparation for a new tenant. If
a month-to-month tenancy results from a holdover by Tenant under this SECTION,
the tenancy shall be terminable at will by Landlord.
HAZARDOUS MATERIALS
35. Tenant shall not use, store or dispose of, or permit the use, storage
or disposal of, upon the Premises, the Tenant Improvements or the Property, any
hazardous, toxic or flammable materials, contaminants, oil, radioactive or other
material, the removal of which is required or the maintenance of which is
prohibited, regulated or penalized by any local, state or federal agency,
authority or governmental unit. Notwithstanding the foregoing, Tenant shall have
the right to use, store or dispose of such materials as are customarily used
in the ordinary course of its business, provided, however, that such use,
storage and disposal is in strict compliance with all applicable local, state
and federal laws, regulations and ordinances. Landlord shall indemnify Tenant
for its reasonable expenses incurred from liability for any hazardous materials
on the Property as of the Commencement Date, including without limitation,
Tenant's reasonable attorneys' fees actually incurred.
16
17
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, the date and year first above written.
LANDLORD:
/S/ James E. L. Peters, Jr. (SEAL)
-----------------------------
JAMES E. L. PETERS, JR.
TENANT:
BOOMERSHINE COLLISION
CENTERS,INC.
By: /s/ David Pollard Pres
--------------------------
President/David Pollard
ATTEST: /S/ Amanda Vernon
----------------------
[CORPORATE SEAL]
17