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EXHIBIT 10.56
LEASE AGREEMENT
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THIS LEASE AGREEMENT (hereinafter sometimes referred to as this "Lease") is
made and entered into as of the 26 day of June, 1998, by and between WINCO II
LP, a Georgia limited partnership (herein sometimes referred to as to
"Landlord") and Boomershine-Pontiac-Buick-GMC, Inc. (herein sometimes referred
to as "Tenant").
STATEMENT OF FACT
On or about February 7, 1996, the parties entered into a triple net lease
of the Property (Article 1.2 below is hereby incorporated by reference herein).
The lease of February 7, 1996 provided for an approximate ten year term, with
no extension options, and an expiration date of March 1, 2006, with equal
monthly lease payments of Ten Thousand, Nine Hundred Dollars ($10,900.00).
Neither party is able to locate the aforementioned lease or a copy thereof.
Accordingly, the parties have caused this Lease to be drafted and executed as a
replacement lease for the February 7, 1996 lease.
For valuable consideration, Landlord and Tenant, intending to be legally
bound, hereby agree with each other as follows:
ARTICLE I - DEFINITIONS AND FUNDAMENTAL PROVISIONS
The following terms shall have the meanings set forth below when used in
this Lease, except as may otherwise be specifically provided:
1.1 Addresses:
Landlord: 2150 Cobb Parkway, Smyrna, Georgia 30080
Tenant: 2150 Cobb Parkway, Smyrna, Georgia 30080
or such other address or addresses as a party may designate by written notice
to the other party.
1.2 Property: That certain tract or parcel of land located in Land Lots
733, 779 and 780, 17th District, 2nd Section, of Cobb County, Georgia, which is
more particularly described and/or depicted on Exhibit A, attached hereto and by
this reference made a part hereof (the "Property").
1.3 Premises: The Property and the improvements now or hereafter thereon.
1.4 Lease Year: Each Lease Year shall be a period of twelve (12)
consecutive calendar months. The first Lease Year shall commence February 7,
1996, (the "Commencement Date"), and end at the end of the twelfth (12th) full
calendar month thereafter.
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1.5 Basic Rent: Tenant agrees to pay as "Basic Rent" the amounts, as
adjusted, as hereinafter described, in strict accordance with the terms and
provisions of Article III hereof, as follows:
Monthly Basic Rent for the period from the Commencement Date through
the Tenth (10th) Lease Year shall be Ten Thousand, Nine Hundred Dollars
($10,900.00).
1.6 Permitted Use. The Premises shall be used for the operation of an
automobile dealership, selling primarily new automobiles, together, at Tenant's
election, with such operations and services as are ancillary and integrally
related to the operation of an automobile dealership (for example, car leasing
operations and/or automobile repair shop), provided Tenant shall, at all times,
continue as its primary business at the Premises a new car dealership, and for
no other purpose, whatsoever.
1.7 Rent. "Rent" shall mean and include Basic Rent and all other amounts
and charges payable by Tenant under any provision of this Lease. Sums other
than Basic Rent that are designated as "Rent" or "Additional Rent" (or any
similar term indicating rent or rental) are so designated solely for the
purpose of enabling Landlord to enforce its rights hereunder, and Landlord
shall have the same remedies for Tenant's failure to pay same as for
non-payment of Basic Rent. Such sums shall not be deemed rent for purposes of
computing taxes or for governmental regulations thereon.
1.8 Term. Ten (10) Lease Years (being sometimes herein referred to as the
"Initial Term") to commence on the Commencement Date.
1.9 Memorandum of Lease. Tenant shall not record or permit the recording
of this Lease without Landlord's written consent. At Landlord's request, Tenant
shall execute and deliver a written statement in recordable form, identifying
the parties hereto and the Property, specifying the Commencement Date and
termination date of the Lease Term and the Permitted Use, and incorporating
this Lease by reference.
1.10 Net Lease. This Lease is to be absolutely net to Landlord. Tenant
shall pay for all expenses, costs, impositions, taxes and other charges imposed
upon or affecting the Premises during the Term, and Landlord shall have no
obligation to pay for any matter affecting the Premises during the Term, except
as may be explicitly set forth herein.
ARTICLE II - DEMISED PREMISES
2.1 Demise of Premises. Landlord hereby leases and demises to Tenant for
the Term and Permitted Use specified herein, and Tenant rents from Landlord the
Premises, subject to the terms and conditions herein contained, and all
encumbrances, easements, restrictions, mortgages, zoning laws and governmental
or other regulations affecting the Premises (such other encumbrances and other
matters sometimes collectively referred to herein as the "Encumbrances").
2.1 Quiet Enjoyment. Tenant, upon timely paying the Rent herein, reserved
and performing and observing all of the other terms, covenants and conditions
of this Lease, shall peaceably and
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quietly have, hold and enjoy the Property during the Term, without interference
by Landlord, subject to the terms of this Lease and the Encumbrances.
ARTICLE III - RENT AND OTHER CHARGES
3.1 Payment of Rent. During the Term, Tenant covenants and agrees to pay
to Landlord, in advance, at the place designated in Section 1.1 hereof, without
demand, deduction or set-off, all Rent as defined in Section 1.7 hereof.
3.2 Payment of Basic Rent. On the Commencement Date, and thereafter,
monthly Basic Rent shall be due and payable on or before the first (1st) day of
each and every calendar month during the Term, in advance, without demand,
deduction or set-off as set forth in Section 1.5 hereinabove.
3.3 Past Due Rent and Additional Rent. If Tenant shall fail to pay, when
the same is due and payable, any Rent or any Additional Rent, or amounts or
charges of any character whatsoever owed to Landlord, such unpaid amounts shall
bear interest from the due date thereof to the date of payment at the rate
which is the lesser of (i) eighteen percent (18%) per annum, or (ii) the
maximum interest rate permitted by law (the "Default Rate").
3.4 Payments on Behalf of Tenant. In case of any default by Tenant in the
payment of any amounts herein provided to be paid by Tenant, including, without
limitation, the procuring of insurance as hereinafter provided for, or in any
other payment required to be made by Tenant hereunder, Landlord, on behalf of
Tenant, may make such payment or payments, or procure any such insurance, and
Tenant covenants to reimburse and pay Landlord any amount paid or expended
immediately upon demand, with interest from the date of disbursement by
Landlord at the Default Rate.
3.5 Utilities. Tenant shall make application for, obtain, pay for, and be
solely responsible for all utilities required, used or consumed in the
Premises, including, but not limited to, gas, water (including water for
domestic uses and for fire protection), telephone, electricity, sewer service,
garbage collection services, or any similar service (herein sometimes
collectively referred to as the "Utility Services"). In the event that any
charge or assessment for any Utility Service supplied to the Premises, that has
or could become a lien on the Premises or any portion thereof or interest
therein, is not paid by Tenant to the utility supplier when due, then, the (10)
days after written notice to Tenant, Landlord may, but shall not be required
to, pay such charge for and on behalf of Tenant, with any such amount paid by
Landlord being repaid by Tenant to Landlord with interest at the Default Rate,
as Additional Rent, within ten (10) days after demand by Landlord. Landlord
shall have absolutely no obligation with respect to any Utility Service to the
Premises and shall not be liable for any interruptions or curtailment in
Utility Services whatsoever.
3.6 Taxes. Tenant shall be responsible for the timely payment of all
taxes, public charges and assessments, of whatsoever nature, directly or
indirectly assessed or imposed upon the land, buildings, equipment and
improvements constituting the Premises and the rents therefrom, including, but
not
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limited to, all real property taxes, rates, duties and assessments, local
improvement taxes, import charges or levies, whether general or special, that
are levied, charged or assessed against the Premises by any lawful taxing
authority, whether federal, state, county, municipal, school or otherwise
(other than income, inheritance and franchise taxes thereon) (the "Taxes").
Taxes for any partial tax period shall be prorated. If Landlord initially pays
the Taxes, Tenant shall reimburse Landlord therefor upon demand.
Tenant shall also promptly pay, when due, all taxes on its trade fixtures
and other personal property in or on the Premises.
ARTICLE IV - USE OF PREMISES
4.1 Tenant's Use. Tenant shall use the Premises solely for the Permitted
Use specified in Section 1.6, and for no other purpose whatsoever. Tenant shall
not vacate or abandon the Premises during the Term.
4.2 Legal Operation of Premises. Tenant shall not use, or suffer or
permit the Premises, or any part thereof, to be used for any purpose or use in
violation of any law, ordinance or regulation of any governmental authority, or
in any manner that will constitute a nuisance or an annoyance, or for any
hazardous purpose. Nothing contained in this Section 4.2 shall be construed to
interfere with Tenant's right to operate in the Premises for the uses and in
the manner set forth in Section 1.6 hereof, so long as they are lawful. In the
event, at any time during the Term of this Lease, any addition, alteration,
change or repair or other work of any nature, structural or otherwise, shall be
required or ordered or become necessary or account of any law, ordinance or
regulation of any governmental authority now in effect or hereafter adopted,
passed or promulgated, or on account of any other reason with respect to the
Premises, the entire expense thereof, regardless of when the same shall be
incurred or become due, shall be the liability of Tenant and in no event shall
Landlord be called upon to contribute thereto or do or pay for any work of any
nature whatsoever on or relating to the Premises. Tenant takes the Property
subject to all zoning regulations and ordinances now or hereafter in force.
4.3 Alterations to Premises. Except as described in Section 5.3
hereinbelow, Tenant shall not alter the exterior of the Premises, or make
interior structural changes or make any other changes or alterations to the
Premises without first obtaining Landlord's written approval for such
alterations, which approval shall not be unreasonably withheld or delayed. All
alterations shall remain upon the Premises and shall become Landlord's property
upon the expiration or other termination of this Lease; provided, however, that
Landlord may require any alteration or improvement made by Tenant without
Landlord's written consent to be removed by Tenant by written notice thereof
given to Tenant no later than sixty (60) days after the expiration or earlier
termination of the Term. There shall be no signs or any other equipment on the
roof of any of the Buildings or any other structure now or hereafter existing
on the Property. Notwithstanding the foregoing, Tenant shall be permitted,
without the requirement of Landlord's prior consent, to make interior,
cosmetic, non-structural alterations to the Premises; provided that: (i) the
value and structural integrity of the Premises are not
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decreased or diminished thereby; (ii) all such work is expeditiously completed
in a good and workmanlike fashion and in compliance with all applicable laws,
ordinances and regulations and in conformity with all provisions of this Lease;
and (iii) Tenant obtains lien waivers consistent with the provisions of Section
4.4 hereof.
4.4 Liens. Tenant will not create or permit to be created or to remain,
and will discharge, any lien (including, but not limited to, the liens of
mechanics, laborers or materialmen for work or materials alleged to be done or
furnished in connection with the Premises), encumbrance or other charge upon
the Premises or any part thereof. Landlord reserves the right to enter the
Premises to post and keep posted notice of non-responsibility for any such lien.
ARTICLE V - REPAIRS AND MAINTENANCE
5.1 No Maintenance or Repair by Landlord. Landlord shall have no
obligation to improve, alter, replace, maintain and/or repair the Premises, or
any part thereof. Landlord may inspect the Premises at all reasonable times to
determine whether Tenant has fulfilled its maintenance and repair obligations
under this Lease and to otherwise inspect or exhibit the Premises; provided,
however, that Landlord shall never be obligated to inspect the Premises for any
reason.
5.2 Maintenance, Repair and Replacement Obligations of Tenant. Tenant
shall, at Tenant's expense, at all times keep and maintain the entire Premises
in good repair and condition, including without limitation, the diligent and
prompt repair of the roof and all exterior supporting walls, foundations, HVAC,
plumbing, electrical and other systems, rain gutters and spouting and all
esthetic aspects of the Premises and shall also keep the non-structural
portions of the Premises (specifically including the storefront, windows and
automatic or other doors of the Premises) in good order, condition, and repair,
clean, sanitary and safe, including the replacement of equipment, fixtures and
all broken glass (with glass of the same size and quality). Tenant shall also,
during the Term hereof, maintain in good condition and repair the non-building
areas of the Property, including the sidewalks, driveways, landscaped areas and
parking areas, and including patching, striping, cleaning, sweeping and other
maintenance. In the event Tenant fails to perform any of its obligations as
required hereunder, Landlord may (but shall not be required to) perform and
satisfy same, and Tenant hereby agrees to reimburse Landlord, as Additional
Rent, for the cost thereof, together with interest at the Default Rate,
promptly upon demand. The parties agree that it shall be Tenant's sole
responsibility at all times during the Term of this Lease to maintain the
Premises in structurally sound, leak-free condition so that the Premises shall
be maintained at all times as if operations therein were to continue beyond the
expiration of the Term, and so that all normal maintenance and repair during
the Term shall be completed when the Premises are surrendered to Landlord.
5.3 Improvements. Landlord and Tenant acknowledge that Tenant may make
certain improvements to the Buildings, from time to time ("Tenant's
Improvements"), as provided or required pursuant to the terms of this Lease.
Tenant's Improvements shall be subject to all of the terms of this Lease and
must first be approved by Landlord in writing, which approval shall not be
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unreasonably withheld or delayed. All such Tenant's Improvements which are
fixtures shall become the property of Landlord upon the installation thereof.
5.4 As-Is Lease. Tenant acknowledges that Tenant is leasing the
Premises "as is" without any warranty or representation and that Landlord has
not made, and is not hereby making, any warranties or representations
pertaining to the physical condition of the Premises, any part thereof or any
improvements thereon.
ARTICLE VI - ACCESS TO PREMISES
Tenant agrees that Landlord, its agents, employees or servants or any person
authorized by Landlord may enter the Premises, at reasonable times, or at any
time in case of an emergency, to inspect the condition of same, to cure defaults
of Tenant as provided for herein, and to exhibit the same to prospective
tenants, purchasers, mortgagees or others interested in the Premises. Such
entry, cure or exhibition shall not constitute an eviction of Tenant, in whole
or in part, Landlord agreeing to employ its reasonable efforts in attempting to
minimize any interruption to the business operations of Tenant resulting from
Landlord's (or its designated representatives') entry to the Premises. Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
any obligation or liability, whatsoever, for the inspection, care, supervision,
repair, improvement, addition, change or alteration of the Premises.
ARTICLE VII - INSURANCE AND INDEMNIFICATION
7.1 Tenant Liability Insurance. Tenant shall maintain, at its sole
expense, during the Term hereof, General Commercial Liability and General
Garage Liability insurance, insuring both Tenant and Landlord covering the
Premises with single limit coverage of at least One Million Dollars
($1,000,000) per occurrence and not less than Two Million Dollars ($2,000,000)
in the aggregate in companies licensed and in good standing in the State of
Georgia in the joint names of Landlord and Tenant. Tenant shall further maintain
at its sole expense a commercial umbrella policy with single limit coverage of
at least Five Million Dollars ($5,000,000) per occurrence and not less than
Five Million Dollars ($5,000,000) in the aggregate in companies licensed and in
good standing in the State of Georgia in the joint names of Landlord and
Tenant. Tenant shall keep in force "All-Risk" or Special Form Coverage Insurance
for the full replacement value of all of Tenant's personal property within the
Premises and on the Property, including, but not limited to, fixtures,
inventory, trade fixtures, furnishings and other personal property. In
addition, Tenant shall keep in force workers compensation or similar insurance
to the extent required by law. Finally, Tenant shall maintain, at its sole cost
and expense, Special Form ("All-Risk") property insurance covering the
Buildings for the full replacement cost thereof (excluding footings and
foundations), providing protection against perils included in the Special Form
("All-Risk") insurance policy. All insurance required under this Section 7.1
shall be written by companies rated A or better in the most current edition of
Best's Insurance Report. Tenant will cause such insurance policies to name
Landlord and its agents (and, at Landlord's election, any lender whose loan is
secured by the Premises (a "mortgagee")) as named insured thereunder with
respect to liability policies and request that the insurer waives all right of
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recovery by way of subrogation against Landlord (and, at Landlord's election,
any mortgagees) in connection with any loss or damage covered by the "All-Risk"
or Special Form Policy in accordance with the provisions of Section 7.2 hereof.
Tenant shall deliver said policies of liability, workers compensation and
all-risk insurance or certificates thereof to Landlord at or prior to its
execution of this Lease, and thereafter from time to time at the reasonable
request of Landlord. Should Tenant fail to effect the insurance called for in
this Lease, Landlord may, but shall not be obligated to, procure said insurance
and pay the requisite premiums, in which event, Tenant shall promptly pay all
sums so expended by Landlord as Additional Rent following invoice. Each insurer
under the policies required hereunder shall agree by endorsement on the policy
issued by it, or by independent instrument furnished to Landlord that it will
give Landlord at least thirty (30) days prior written notice before the policy
or policies in question shall be altered or canceled. Tenant's property
insurance policy shall insure Landlord and any mortgagee, as their interests
may appear.
7.2 Waiver of Subrogation. Tenant hereby releases Landlord and anyone
claiming through or under Landlord by way of subrogation from any and all
liability for any loss of or damage to property, regardless of whether caused
by the negligence or fault of Landlord, to the extent same is required to be
insured pursuant to the requirements of this Lease. In addition, Tenant shall
request each such insurance policy carried by it insuring the Buildings or
Tenant's personal property therein (and including the insurance coverages
required in Section 7.1 hereinabove) to be written to provide that the insurer
waives the all rights of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by the policy.
7.3 Indemnification and Release. Tenant hereby agrees to indemnify,
protect, defend and hold Landlord harmless from any and all claims, damages,
liabilities or expenses (including, without limitation, attorney's fees and
other costs of legal representation) (collectively "Claims") arising out of (i)
any and all claims by third parties arising from any breach or default in the
performance of any obligation of Tenant hereunder and (ii) any act, omission or
negligence of Tenant, its agents or employees on or about the Premises or
otherwise in connection with this Lease. Tenant further releases Landlord from
liability for any damages sustained by Tenant, or any other person claiming by,
through or under Tenant, due to the Premises or any part thereof or any
appurtenances thereto being or becoming out of repair or due to the happening
of any accident, including, but not limited to, any damage caused by water,
snow, ice, windstorm, tornado, gas, steam, electrical wiring, sprinkler system,
plumbing, heating and air conditioning apparatus. Notwithstanding the
foregoing, Tenant's indemnification pursuant to this Section 7.3 shall not
apply to any Claims arising solely as a result of the willful acts or
negligence of Landlord, or its agents, representatives, invitees, employees or
contractors. Landlord shall not be liable for any damage to, or loss of,
Tenant's personal property, inventory, fixtures or improvements from any cause
whatsoever.
ARTICLE VIII - CASUALTY AND CONDEMNATION
8.1 Fire, Explosion or Other Casualty. In the event the Premises are
damaged by fire, explosion or any other casualty, except as otherwise provided
herein, the damage shall be repaired by Tenant, said repairs to be
substantially completed within two hundred seventy (270) days after the
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casualty causing damage has occurred, subject to force majeure events beyond
Tenant's reasonable control.
In the event the Premises shall be damaged or destroyed to the extent of
seventy-five percent (75%) or more of the total square footage of all Buildings
and other improvements on the Premises (hereinafter, a "Casualty"), and such
Casualty shall occur after the first five (5) Lease Years of the Term of the
Lease, then and in such event, Tenant may elect by written notice to Landlord
delivered within thirty (30) days after such a Casualty either to repair or
rebuild the Premises, as aforesaid, or to terminate this Lease, effective as of
the date Tenant's notice is delivered to Landlord. If Tenant elects to
terminate the Lease pursuant to this Section 8.1, then Tenant shall direct its
insurance company(s) to deliver directly to Landlord all insurance proceeds to
be paid for or in connection with said Casualty; provided, in no event shall
the amount of such insurance proceeds payable to Landlord be less than the full
replacement value of all such improvements which have been so damaged or
destroyed, as reasonably determined by the insurance company's adjuster. If the
insurance proceeds are less than the full replacement value as aforesaid,
Tenant shall pay such deficiency to Landlord upon demand. If Tenant fails to
deliver notice of its election to Landlord within the thirty (30) day period
referenced above, Tenant shall be deemed to have elected to repair or rebuild
the Premises and the Lease shall remain in full force and effect.
If this Lease is not terminated pursuant to the preceding paragraph, then
Tenant shall restore and repair the Buildings and other improvements in an
expeditious manner. If Tenant purchases, at its sole option, rent insurance to
compensate Landlord for any lost rents as a result of damage or destruction to
the Premises, then Basic Rent (and other Rent) shall abate during any period
following damage to the Premises in a fair and equitable fashion according to
the proportion of the Premises that cannot reasonably be utilized by Tenant,
provided that the amount of such abatement shall not exceed the rent insurance
proceeds actually received by Landlord with respect thereto. Notwithstanding
the provisions of this Section 8.1, Tenant shall be the owner of its trade
fixtures and shall be entitled to any insurance proceeds attributable to said
trade fixtures.
8.2 Condemnation. If the whole of the Premises, or so much thereof as
to render the balance unusable by Tenant, shall be taken under power of
eminent domain, or otherwise transferred in lieu thereof, this Lease shall
automatically terminate as of the date possession is taken by the condemning
authority. No award for any total or partial taking of any real property
interest in or to the Premises shall be apportioned, and Tenant hereby
unconditionally assigns to Landlord any award which may be made for real
property interests in such taking or condemnation. In the event of a partial
taking, which does not result in the termination of this Lease, Basic Rent
shall be apportioned according to the part of the Buildings remaining usable by
Tenant.
8.3 Condemnation Award. All compensation awarded or paid for any
taking or acquiring under the power or threat or eminent domain, whether for
the whole or part of the Premises, shall be the property of Landlord, and
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in
any to any such award. Notwithstanding the foregoing, Tenant shall be entitled
to claim, prove and receive in the condemnation proceeding or by separate
action, such awards as may be
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allowed for loss of lease, moving expense, fixtures and other equipment
installed by it, but only if such awards shall be made by the condemnation
court in addition to the award made by it for the land and the Buildings or
part thereof so taken.
ARTICLE IX - ASSIGNMENT AND SUBLETTING
9.1 Assignment and Subletting. Tenant's interest in the Premises shall
be limited to the use and occupancy thereof in accordance with the provisions
hereof and shall be non-transferable without Landlord's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed. Any
attempts by Tenant to assign its interest in the Lease, or to sublet the
Premises in whole or in part, or to sell, assign, lien, encumber or in any
manner transfer this Lease or any interest therein, without Landlord's prior
written consent, shall constitute a default hereunder, as shall any attempt by
Tenant to assign or delegate the management or to permit the use or occupancy
of the Property or the Premises or any part thereof by anyone other than
Tenant. Landlord and Tenant acknowledge and agree that the foregoing provisions
have been freely negotiated by the parties hereto and that Landlord would not
have entered into this Lease without Tenant's consent to the terms of this
Section 9.1. Any attempt by Tenant to assign this Lease or to sublet all or any
portion of the Premises, to encumber same, or to in any manner transfer, convey
or assign Tenant's interest therein without Landlord's prior written consent
shall be void ab initio.
Notwithstanding anything contained herein to the contrary, Tenant may,
without the prior consent of Landlord, (i) assign this Lease or sublet the
Premises to any wholly-owned subsidiary of Tenant, to the parent corporation of
Tenant, or to a wholly-owned subsidiary of the parent corporation of Tenant, or
(ii) transfer its capital stock to the parent corporation of Tenant, or to a
wholly-owned subsidiary of Tenant or of Tenant's parent corporation; provided
that, in the case of any such transfer, all of the assets held by Tenant prior
to such transfer remain or become assets of the continuing corporation. If
Tenant survives as an entity after such assignment or sublease, Tenant shall
remain fully and primarily liable for performance of all obligations of the
tenant under the Lease and shall not be released as a result thereof.
9.2 Change of Control. In furtherance of the provisions of Section 9.1
hereof, if Tenant is a partnership, limited liability company, corporation or
banking association and if the person or persons who own a majority of its
voting shares or interests at the time of the execution hereof cease to own a
majority of such shares or interests at any time hereafter (except as a result
of transfers by gift, bequest or inheritance by or among immediate family
members), Tenant shall so notify Landlord. In the event of such change of
ownership, regardless of whether Tenant has notified Landlord thereof, Landlord
may terminate this Lease by notice to Tenant effective sixty (60) day from the
date of such notice from Tenant, or the date on which Landlord first has
knowledge of such transfer, whichever shall first occur. Notwithstanding the
foregoing, the merger of Lessee with Sunbelt Automotive Group, Inc. shall not
constitute a change of control under this Lease.
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ARTICLE X - SUCCESSION TO LANDLORD'S INTEREST
10.1 Attornment. Tenant shall attorn and be bound to any of Landlord's
successors under all the terms, covenants and conditions of this Lease for the
balance of the remaining term.
10.2 Subordination
(a) This Lease shall be subordinate to the lien of any mortgage or
security deed or the lien resulting from any other method of financing or
refinancing now or hereafter in force against the Premises or any portion
thereof, and to any and all advances to be made under such security
instruments, and all renewals, modifications, extensions, consolidations
and replacements thereof. The aforesaid provisions shall be self-operative
and no further instrument of subordination shall be required to evidence
such subordination. Tenant covenants and agrees to execute and deliver,
upon demand, such further instrument or instruments subordinating this
Lease on the foregoing basis to the lien of any such security instruments
as shall be desired by Landlord and any mortgagees or proposed mortgagees.
(b) Notwithstanding anything to the contrary set forth in subsection
(a) above, any mortgagee may at any time subordinate its mortgage to this
Lease, without Tenant's consent, by execution of a written document
subordinating such mortgage to this Lease to the extent set forth therein
and thereupon this Lease shall be deemed prior to such mortgage to the
extent set forth in such written document, without regard to their
respective dates of execution, delivery and/or recording. In that event, to
the extent set forth in such written document, such mortgagee shall have
the same rights with respect to this Lease as though this Lease had been
executed and a memorandum thereof recorded prior to the execution, delivery
and recording of the mortgage and as though this Lease had been assigned to
such mortgagee.
10.3 Estoppel Certificate. Within ten (10) days after request therefor by
Landlord, or in the event that upon any sale, assignment or hypothecation of the
Premises and/or the land thereunder by Landlord an estoppel certificate shall be
required from Tenant, Tenant agrees to deliver in recordable form, a
certificate to any proposed mortgagee or purchaser, or to Landlord, certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), that there are no defenses or offsets thereto (or
stating those claimed by Tenant) and the dates to which Basic Rent and other
charges have been paid, and such other matters as Landlord may reasonably
require.
ARTICLE XI - DEFAULT, REMEDIES AND BANKRUPTCY
11.1 Default of Tenant. In the event that Tenant (a) fails to pay all or
any portion of any sum due from Tenant hereunder or pursuant to any exhibit
hereto when due and such failure to pay continues for more than five (5)
business days after receipt of written notice from Landlord (provided that such
five (5) day grace period shall not be available more than three (3) times in
any twelve (12) month period; (b) fails to perform any other terms, covenants
and conditions hereof, or is otherwise
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in breach of any of Tenant's obligations hereunder or commits any
other act or omission in violation of this Lease and such failure to perform or
violation continues for more than thirty (30) days after receipt of written
notice from Landlord (provided such thirty (30) day grace period shall not be
available more than three (3) times in any twelve (12) month period); (c)
becomes bankrupt, insolvent or files any debtor proceeding; takes or has taken
against Tenant any petition of bankruptcy; takes action or has action taken
against Tenant for the appointment of a receiver for all or a portion of
Tenant's assets, files a petition for a corporate reorganization; makes an
assignment for the benefit of creditors, or if in any other manner Tenant's
interest hereunder shall pass to another by operation of law (any or all of the
occurrences in this subsection 11.l(c) shall be deemed a default on account of
bankruptcy for the purposes hereof and such default on account of bankruptcy
shall apply to and include any guarantor of this Lease); and any such petition,
assignment or proceeding is not dismissed within sixty (60) days of filing,
assignment or institution of proceedings; or (d) commits waste to the Premises
or removes any betterments or improvements thereof; then Tenant shall be in
default hereunder and Landlord may, at its option and without further notice to
Tenant, terminate Tenant's right to possession of the Premises and without
terminating this Lease re-enter and resume possession of the Premises and/or
declare this Lease terminated, and may, thereupon, in either event remove all
persons and property from the Premises with or without resort process of any
court, either by force or otherwise. Notwithstanding such re-entry by Landlord,
Tenant hereby indemnifies, protects, defends and holds Landlord harmless from
any and all loss or damage which Landlord may incur by reason of the termination
of this Lease and/or Tenant's right to possession hereunder. In no event shall
Landlord's termination of this Lease and/or Tenant's right of possession of the
Premises abrogate Tenant's agreement to pay Rent and additional charges due
hereunder for the full term hereof. Following re-entry of the Premises by
Landlord, Tenant shall promptly pay all arrearages then due and overdue and
shall continue to pay all such Rent and additional charges as same become due
under the terms of this Lease, together with all other expenses incurred by
Landlord in regaining possession until such time, if any, as Landlord relets
same and the Premises are occupied by such successor. Upon reletting, sums
received from such new lessee by Landlord shall be applied first to payment of
costs incident to reletting; any excess shall then be applied to any
indebtedness to Landlord from Tenant other than for Basic Rent; and any excess
shall then be applied to the payment of Basic Rent due and unpaid. The balance,
if any, shall be applied against the deficiency between all amounts received
hereunder and sums to be received by Landlord on reletting, which deficiency
Tenant shall pay to Landlord in full, within five (5) days of notice of same
from Landlord. Tenant shall have no right to any proceeds of reletting that
remain following application of same in the manner set forth herein.
11.2 Rights and Remedies. The various rights and remedies herein
granted to Landlord shall be cumulative and in addition to any others Landlord
may be entitled to by law or in equity, and the exercise of one or more rights
or remedies shall not impair Landlord's right to exercise any other right or
remedy. All such rights and remedies may be exercised and enforced concurrently
or consecutively, and whenever and as often as Landlord shall deem desirable.
The failure of Landlord to insist upon strict performance by Tenant of any of
the covenants, conditions and agreements of this Lease shall not be deemed a
waiver of any of said rights and remedies concerning any subsequent or
continuing breach or default by Tenant of any of the covenants, conditions, or
agreements of this
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Lease. No surrender of the Premises shall be effected by Landlord's acceptance
of Rent or by any other means whatsoever unless the same be evidenced by
Landlord's written acceptance of such as a surrender. In all events, Landlord
shall have the right upon notice to Tenant to cure any breach by Tenant at
Tenant's sole cost and expense, and Tenant shall reimburse Landlord for such
expense upon demand. Tenant shall reimburse Landlord for attorney's fees and
other expenses incurred by Landlord under this Article XI.
11.3 Landlord's Default. If Tenant alleges a breach or default by
Landlord hereunder, Tenant shall provide Landlord (and any mortgagee of Landlord
of whom Tenant has notice) with written notice thereof and provide thirty (30)
days thereafter for Landlord or its mortgagee to cure same prior to exercising
any right or remedy Tenant may have for said breach or default.
11.4 Bankruptcy. If Landlord shall not be permitted to terminate this
Lease as hereinabove provided because of the provisions of Title 11 of the
United States Code relating to Bankruptcy, as amended ("Bankruptcy Code"), then
Tenant as a debtor in possession or any trustee for Tenant agrees promptly,
within no more than fifteen (15) days upon request by Landlord to the Bankruptcy
Court, to assume or reject this Lease and Tenant on behalf of itself, and any
trustee agrees not to seek or request any extension or adjournment of any
application to assume or reject this Lease by Landlord with such Court. In such
event, Tenant or any trustee for Tenant may only assume this Lease if (a) it
cures or provides adequate assurance that the trustees will promptly cure any
default hereunder, (b) it compensates or provides adequate assurance that Tenant
will promptly compensate Landlord for any actual pecuniary loss to Landlord
resulting from Tenant's defaults, and (c) it provides adequate assurance of
performance during the fully stated Term hereof of all of the terms, covenants
and provisions of this Lease to be performed by Tenant. In no event after the
assumption of this Lease shall any then-existing default remain uncured for a
period in excess of the earlier of ten (10) days or the time period set forth
herein. Adequate assurance of performance of this Lease as set forth hereinabove
shall include, without limitation, adequate assurance (1) of the source of Rent
reserved hereunder and (2) the assumption of this Lease will not breach any
provision hereunder.
ARTICLE XII - SURRENDER OF PREMISES
12.1 Surrender of Premises. At the expiration or earlier termination of
this Lease, Tenant shall surrender the Premises to Landlord broom clean and in
good condition, and in a condition which complies with all applicable laws,
reasonable wear and tear and insured casualty (for which Landlord receives the
proceeds) excepted. Tenant shall promptly remove Tenant's sign, personal
property and trade fixtures upon such expiration or termination and repair any
damage or disturbance to the Premises caused by the removal of any furniture,
trade fixtures or other personal property placed in the Premises. Tenant's
failure to remove all or part of Tenant's sign, personal property and trade
fixtures within ten (10) days after such expiration or termination shall be
deemed an abandonment to Landlord of such sign, personal property and trade
fixtures and, if Landlord elects to remove all or any part of said same, such
removal, including the cost of repairing any damage to the Premises caused by or
resulting from such removal, shall be paid by Tenant.
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12.2 Holding Over. Should Tenant, with Landlord's written consent, hold
over at the end of the Term of the Lease, Tenant shall become a tenant-at-will
and any such holding over shall not constitute an extension of this Lease.
During such holding over, Tenant shall pay Rent and other charges at the highest
monthly rate provided for herein, plus an additional fifty percent (50%) of the
Basic Rent in effect at the expiration of the Term hereof. If Tenant holds over
at the end of the Term of the Lease without Landlord's written consent, Tenant
shall be a tenant-at-sufferance.
ARTICLE XIII - MISCELLANEOUS
13.1 Notices. Notices and demands required or permitted to be given
hereunder may be given by personal delivery to the addresses designated in
Section 1.1 hereinabove (including courier and expedited delivery services) to
either party or any officer or other representative of the party to be notified,
or may be sent by certified mail, return receipt requested, addressed, postage
prepaid, to said addresses. Mailed notices and demands shall be deemed to have
been given upon the date of the executed return receipt (provided that (i) if
any party shall refuse delivery or (ii) if delivery fails because of an address
change that has not been received as required by this Section 13.1, then, in
either of such events, notices shall be deemed given when mailed), or, if made
by personal, courier or other expedited delivery to the addresses designated in
Section 1.1. hereinabove, then upon the delivery. Notice of change of address
for notices shall not be deemed made until received or rejected. Unless
otherwise specified by Landlord, the payment of Rent shall be to the first
address of Landlord as set forth in Section 1.1 herein.
13.2 Successors and Assigns. All covenants, promises, conditions,
representations and agreements herein contained shall be binding upon, apply and
inure to the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
13.3 Entire Agreement. This Lease, the Environmental Addendum and the
Exhibits attached hereto constitute the sole and exclusive agreement between the
parties with respect to the Premises. No amendments, modifications of or
supplements to this Lease shall be effective unless in writing and executed by
Landlord and Tenant.
13.4 Time is of the Essence. The time of the performance of all of the
covenants, conditions and agreements of this Lease is of the essence of this
Lease.
13.5 Relationship of Parties: Usufruct. The parties hereto shall always be
as Landlord and Tenant and nothing herein shall be construed so as to constitute
a joint venture or partnership between Landlord and Tenant. This Lease creates
a usufruct not subject to levy and sale and no estate in or with respect to the
Premises, or any portion thereof, is granted or conveyed hereby.
13.6 Litigation. It is mutually agreed that in the event Landlord
commences any summary proceeding for non-payment of any Rent, Tenant will not
interpose any non-compulsory counterclaim of whatever nature or description in
any such proceeding. Landlord and Tenant hereby waive the
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right to a trial by jury in connection with any dispute arising out of this
Lease or the use or possession of the Premises by Tenant.
13.7 Governing Law. This Lease shall be construed under the laws of
the State of Georgia.
13.8 Partial Invalidity. If any provision of this Lease or the
application thereof to any person or circumstance shall to any extent be held
invalid, then the remainder of this Lease or the application of such provision
to persons or circumstances other than those as to which it is held invalid
shall not be affected thereby, and each provision of this Lease shall be valid
and enforced to the fullest extent permitted by law.
13.9 Submission of Lease. The submission of this Lease for
examination does not constitute an offer to lease, or a reservation of or option
for the Property, and this Lease shall be effective only upon execution and
delivery thereof by Landlord and Tenant.
13.10 Interpretation. In interpreting this Lease in its entirety, the
printed provisions of this Lease and any additions written or typed thereon
shall be given equal weight, and there shall be no inference, by operation of
law or otherwise, that any provision of this Lease shall be construed against
either party hereto.
13.11 Broker. Landlord and Tenant hereby agree that, in connection
with this Lease, neither have dealt with any broker and other person or entity
entitled to any brokerage commission, fee or other compensation. Each party
shall indemnify, defend and hold harmless the other, their agents and legal
representatives against any fee, commission or other compensation due to any
person, firm or corporation claiming to have acted in said party's behalf.
13.12 Limitation of Liability. Landlord's liability to Tenant for
damages or otherwise with respect to the Lease shall be limited solely to and
recovered, if at all, solely from Landlord's interest in the Property. Landlord
shall, at any time and from time to time, have the absolute right to sell,
assign, pledge or otherwise transfer its interest in the Premises or this Lease.
Landlord shall be relieved of all its obligation and liability hereunder after
Landlord has conveyed the Premises and assigned this Lease to a successor
Landlord. Landlord may assign this Lease to an entity in connection with the
acquisition of the Premises, in which case Landlord will be released from all
liability hereunder.
13.13 Survival of Obligations. The provisions of this Lease with
respect to any obligation of Tenant to pay any sum in order to perform any act
required by this Lease after the expiration or other termination of this Lease
shall survive the expiration or other termination of this Lease.
13.14 Headings, Captions and References. The section captions
contained in this Lease are for convenience only and do not in any way limit or
amplify any term of provision hereof. The use of the terms "hereof,"
"hereunder" and "herein" shall refer to this Lease as a whole, inclusive of the
Exhibits, except when noted otherwise. The use of the masculine or neuter
genders herein shall
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include the masculine, feminine and neuter genders and the singular form shall
include the plural when the context so requires.
13.15 Attorneys' Fees. The unsuccessful party in any action or
proceeding shall pay for all costs, expenses and reasonable attorneys' fees
incurred by the prevailing party or its agents or both in enforcing the
covenants and agreements of this Lease. The term "prevailing party," as used
herein, shall include, without limitation, a party who obtains legal counsel and
brings an action against the other party by reason of the other party's breach
or default and obtains substantially the relief sought, whether by compromise,
settlement or judgment.
13.16 Hazardous Substances. SEE ENVIRONMENTAL ADDENDUM ATTACHED TO
THIS LEASE.
13.17 Waiver. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance
of Rent hereunder by Landlord shall not be deemed to be a waiver of any
proceeding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent. No covenant, term or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing by
Landlord and delivered to Tenant.
13.18 Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Rent herein stipulated shall be deemed to
be other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other remedy provided in this Lease.
13.19 Tenant Defined, Use of Pronoun. The word "Tenant" shall be
deemed and taken to mean each and every person or party mentioned as a Tenant
herein, be the same one or more; and if there shall be more than one Tenant, any
notice required or permitted by the terms of this Lease may be given by or to
anyone thereof, and shall have the same force and effect as if given by or to
all thereof. The use of the neuter singular pronoun to refer to Landlord or
Tenant shall be deemed a proper reference even though Landlord or Tenant may be
an individual, a corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where this is more than one Landlord or
Tenant and to either corporations, associations, partnerships or individuals,
males or females, shall, in all instances, be assumed as though in each case
fully expressed.
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13.20 Covenant to Operate. Commencing on the Commencement Date, and
thereafter for the balance of the Term, Tenant hereby covenants that it shall
continuously occupy and use the Premises solely for conducting the Permitted
Use, as defined herein.
IN WITNESS WHEREOF, this Lease has been executed under seal as of the day
and year first above written.
LANDLORD: WINCO II LP, a Georgia limited partnership, by its
two (2) sole general partners
/s/ ILLEGIBLE By: /s/ Walter M. Boomershine, Jr.
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Witness Walter M. Boomershine, Jr., General Partner
By:
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Winifred F. Boomershine, General Partner
TENANT: BOOMERSHINE AUTOMOTIVE GROUP, INC.
By: /s/ ILLEGIBLE
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Witness
Its:
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Attest:
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Its:
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(CORPORATE SEAL)
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