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EXHIBIT 10.53
COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT (the "Agreement") is made this 17 day of
November, 1997 and effective as of November 1, 1994, by and between JAMES E. L.
PETERS, JR. (hereinafter called "Landlord") and SOUTHLAKE COLLISION CENTER,
INC., a Georgia corporation (hereinafter called "Tenant").
WITNESSETH
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, and
Tenant hereby leases and takes upon the terms and conditions which hereinafter
appear, the property described on Exhibit "A" attached hereto (hereinafter
called the "Premises"). No easement for light or air is included in the
Premises.
TERM
2. The Tenant shall have and hold the Premises for a term of fifteen
(15) years beginning on the 1st day of November, 1994, and ending on the 31st
day of October, 2009, at midnight, unless sooner terminated as hereinafter
provided.
RENTAL
3. Tenant agrees to pay to Landlord at the address of Landlord as stated
in this Lease, without demand, deduction or set off, monthly rental of Twelve
Thousand Dollars ($12,000.00) payable in advance on the first day of each
calendar month during the term hereof. Rental for any period during the term
hereof which is for less than one month shall be a pro-rated portion of the
monthly rental due.
LATE CHARGES
4. If Landlord fails to receive any rent payment within ten (10) days
after it becomes due, Tenant shall pay Landlord, as additional rental, a late
charge equal to five percent (5%) of the overdue amount. 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.
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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 Tenant shall pay all charges for garbage collection or other sanitary
services.
USE OF PREMISES
6. Premises shall be used for a automotive collision repair facility
only and no other purpose. The Premises 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.
ABANDONMENT OF THE PREMISES
7. Tenant agrees not to abandon or vacate the Premises during the term
of this Lease and agrees to use the Premises for the purposes herein leased
until the expiration hereof.
INDEMNITY; INSURANCE
8.
A. Tenant agrees to and hereby does indemnify and save Landlord
harmless against all claims for damages to persons or property by reason of
Tenant's use or occupancy of the Premises, and all expenses incurred by
Landlord because thereof, including attorney's fees and court costs.
Supplementing the foregoing and in addition thereto, Tenant shall during all
times 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 $500,000.00 per person and $1,000,000.00 per accident,
and property damage limits of $100,000.00, 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. 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, 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.
B. Tenant agrees to pay as additional rental Landlord's reasonable
annual cost of carrying fire and extended coverage insurance and general
liability insurance ("INSURANCE") on the Premises. During each month of the
term of this Lease, Tenant shall make a monthly escrow deposit with Landlord
equal to 1/12 of such Insurance which will be due and payable for that
particular year. Each Insurance Escrow Payment shall be due and payable at the
same time and
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manner of the payment of Rental as provided herein. The amount of the initial
monthly Insurance Escrow Payment will be $_____. The initial monthly Insurance
Escrow Payment is based upon the estimated Insurance for the year in question,
and the monthly Insurance Escrow Payment is subject to increase or decrease no
more frequently than semi-annually as determined by Landlord to reflect an
accurate monthly escrow of the cost of the Insurance. The Insurance Escrow
Payment account of Tenant shall be reconciled annually. If the Tenant's total
Insurance Escrow Payments are less than the actual cost of the Insurance on the
Premises, Tenant shall pay the difference to Landlord within thirty (30) days
after written demand together with receipt of invoices and other such
supporting information as Tenant shall reasonably request; if the total
Insurance Escrow Payments of Tenant are more than the actual cost of the
Insurance on the Premises, Landlord shall promptly refund such excess.
PROPERTY TAXES
9.
A. Tenant shall be liable for all taxes levied against personal
property and trade fixtures placed by Tenant in the Premises. If any such
personal property taxes of Tenant are levied against Landlord or Landlord's
property and if 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 Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord its proportionate share of
such taxes within thirty (30) days after written notice from Landlord setting
forth the amount of such taxes applicable to Personal Property together with a
copy of the tax bill and other evidence documenting that such tax is properly
payable by Tenant.
B. Tenant agrees to pay 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. During each month of
the term of this Lease, Tenant shall make a monthly escrow deposit with
Landlord equal to 1/12 of the Taxes on the Premises which will be due and
payable for that particular year. Each Tax Escrow Payment shall be due and
payable at the same time and in the same manner as the time and manner of the
payment of Rental as provided herein. The amount of the initial monthly Tax
Escrow Payment will be $______. The initial monthly Tax Escrow Payment is based
upon the estimated Taxes on the Premises for the year in question, and the
monthly Tax Escrow Payment is subject to increase and decrease no more
frequently than semi-annually as determined by Landlord to reflect an accurate
escrow of the amount of the Taxes. The Tax Escrow Payment account of Tenant
shall be reconciled annually. If the Tenant's total Tax Escrow Payments are
less than the actual Taxes on the Premises, Tenant shall pay to Landlord the
difference within thirty (30) days after written demand together with paid
receipts and such other information as Tenant shall reasonably request; if the
total Tax Escrow Payments of Tenant are more than the actual Taxes on the
Premises, 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.
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C. If Tenant should fail to pay taxes, assessments, or governmental
charges 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 taxes,
assessments, and governmental charges. Any sums so paid by Landlord shall be
deemed to be so much additional rental owing by Tenant to Landlord and due and
payable upon thirty (30) days after written demand as additional rental plus
interest at the rate of fifteen percent (15%) per annum from the date of payment
by Landlord until repaid by Tenant.
D. If at any time during the term of this Lease, 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 based, in
whole or in part, upon such rents or the present or any future building or
buildings on the Premises, then all such taxes, assessments, levies, or charges,
or the part thereof so measured or based, shall be deemed to be include 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 only
property of Landlord subject to such taxes or the income form 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, such obligation being the sole obligation of Tenant.
REPAIRS BY TENANT
11. Tenant accepts the Premises 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 (inclusive
of all glass and exterior doors) and underground utility and sewer pipes outside
the exterior walls of the Premises. Further, Tenant shall provide for the mowing
of grass, care of shrubs and general landscaping, and proper maintenance, repair
and replacement of the HVAC system. Tenant agrees to return the Premises to
Landlord at the expiration, or prior to 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.
ALTERATIONS
12. Tenant shall not make any alterations, additions, or improvements to
the Premises 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.
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REMOVAL OF FIXTURES
13. Tenant may (if not in default hereunder) prior to the expiration of
this Lease, or any extension or renewal thereof, remove all fixtures and
equipment which it has placed in the Premises (but not any fixtures or equipment
place in the Premises by a prior tenant), provided Tenant repairs all damage to
the Premises caused by such removal.
DESTRUCTION OF OR DAMAGE TO PREMISES
14. If the Premises 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 account for as between Landlord and Tenant as of
that date. If the Premises are damaged but not wholly destroyed by any such
casualties, rental shall abate in such proportion as use of the Premises has
been destroyed and Landlord shall restore Premises 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, or such portion thereof as will make
the Premises 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 of 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.
ASSIGNMENT AND SUBLETTING
16. Tenant shall not, without the prior written consent of Landlord,
which shall not be unreasonably withheld or delayed, assign this Lease or any
interest hereunder, or sublet the Premises or any part thereof, or permit the
use of the Premises by any party other than the Tenant. 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.
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 breach of this Lease on the part of the Tenant: (1) Tenant fails to
pay the rental as provided for herein; (2) Tenant abandons or vacates the
Premises; (3) Tenant fails to comply with or abide by and perform any other
material obligation imposed upon
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Tenant under this Lease; (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 of benefit of creditors; or (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.
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 rental and Tenant fails to cure such default
within ten (10) days after receipt 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 rental, and Tenant fails to
cure such default within thirty (30) days after the receipt of written notice of
default from Landlord, Landlord may 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 rental which is then due and the
present value (discounted at ten percent (10%) per annum) of all rental 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
time (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
he Tenant damages in an amount equal to all rental which is then due and the
present value (discounted at ten percent (10%) annum) of all rental 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, 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 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. Except as are currently on the Premises, Tenant shall place no
signs upon the outside walls or roof of the Premises except with the written
consent of the Landlord, such consent not to be unreasonably withheld or
delayed. Any and all signs placed on the Premises 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.
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LANDLORD'S ENTRY OF PREMISES
20. Landlord may card the Premises "For Rent" or "For Sale" sixty (60)
days before the termination of this Lease. Landlord may enter the Premises at
reasonable hours to exhibit same to prospective purchasers or tenants and to
make repairs required 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 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 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 at all times during the Lease term peacefully and
quietly have and enjoy possession of the Premises, 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 no 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 to be fixed by the court 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.
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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.
"Tenant" shall include the undersigned and its heirs, 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 covered by such
assignment or sublease.
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. Agent shall be copied with all
required or permitted notices. Notices to Tenant shall be delivered or sent to
the address shown below, except that upon Tenant's taking possession of the
Premises, then Premises shall be Tenant's address for notice purposes. 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
Tenant: Southlake Collision Center, Inc.
5548 Old Dixie Highway
Forest Park, Georgia 30297
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.
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SPECIAL STIPULATIONS
32. Any special stipulations are set forth below. In so far as said
Special Stipulations conflict with any of the foregoing provisions, said
Special Stipulations shall control:
[NONE]
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)
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JAMES E.L. PETERS, JR.
TENANT:
SOUTHLAKE COLLISION CENTER, INC.
BY: /s/ James E.L. Peters Jr. (Pres.)
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President
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EXHIBIT A
All that tract or parcel of land lying and being in Land Lot 12 of the 12th
District of Clayton County, Georgia, being Lot 5, Block D, North Shore, Unit
IV, as per plat recorded in Deed Book 1150, page 258, Clayton County, Georgia
Records, to which reference is made for the purpose of incorporating the same
as a part herein, being improved property known as No. 8576 Shoreview Court,
according to the present system of numbering houses in Clayton County.
This Deed is given subject to a prior Deed to Secure Debt from James E. L.
Peters, Jr. and Lois E. Peters to C & S Real Estate Services, Inc., dated
8/1/91, recorded in Deed Book 1726, Page 133, Clayton County, Georgia Records
and any default in said prior Deed to Secure Debt or the Note secured thereby
shall, at the option of the Grantee herein, be and constitute a default under
this instrument. In the event that Grantor should default in making any of the
required payments under said prior Deed to Secure Debt, Grantee shall have the
right to advance whatever funds may be necessary to cure such default and all
funds so advanced by Grantee shall be added to the indebtedness from Grantor to
Grantee and shall be secured by this Deed to Secure Debt. In the event that the
holder of said prior Deed to Secure Debt exercises its power of sale as
contained therein and forecloses on the above described property, Grantor
hereby assigns to Grantee any and all surplus proceeds from said foreclosure
sale to the extent necessary to satisfy the indebtedness secured hereby.