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EXHIBIT 10.63
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter sometimes referred to as this
"Lease") is made and entered into as of the _ day of __________, 1998, by and
between JAY LEASING, INC., a Georgia corporation (herein sometimes referred to
as to "Landlord") and JAY AUTOMOTIVE GROUP, INC., a Georgia corporation (herein
sometimes referred to as "Tenant").
WITNESSETH THAT:
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: 1424 Veterans Parkway, Columbus, Georgia 31901
Tenant: c/o Sunbelt Automotive Group, Inc., 5901
Peachtree-Dunwoody Road, Suite 250-B, Atlanta,
Georgia 30328
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 with a street
address of __________ Veterans Parkway, Columbus, Muscogee 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, which Premises include a used vehicle sales facility presently
comprised of ______ main structures (the "Buildings").
1.4 Lease Year: Each Lease Year shall be a period of twelve (12)
consecutive calendar months, beginning on the expiration of the prior Lease
Year. The first Lease Year shall commence ____________________, 1998 (the
"Commencement Date"), and end at the end of the twelfth (12th) full calendar
month thereafter. At the request of either party, the parties shall execute a
stipulation stating the Commencement Date, the expiration of the first Lease
Year and of the Initial Term after Landlord has delivered the Premises to
Tenant.
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1.5 Basic Rent: Tenant shall pay to Landlord the sum of $4,000.00 per
calendar month as "Basic Rent," which shall be paid in accordance with the terms
and provisions of Article III hereof.
1.6 Permitted Use. The Premises shall be used for the operation of, at
Tenants option, a used vehicle sales facility or 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 a used vehicle sales facility or an automobile dealership (for example, car
leasing operations and/or automobile repair shop), 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. Five (5) Lease Years (being sometimes herein referred to as
the "Initial Term") to commence on the Commencement Date. Provided that Tenant
is not in default hereunder at the time of renewal, and the Lease is in full
force and effect, Landlord does hereby grant and give the Tenant an option to
renew this Lease at the end of the Initial Term, or at the end of a prior
renewal term, as the case may be, for two (2) additional sixty (60) month
periods upon all of the same terms and conditions as herein stated by giving
Landlord at least sixty (60) days prior written notice of its intention to renew
prior to the expiration of the existing term or renewal term, as the case may
be.
1.9 Memorandum of Lease. Neither party shall record or permit the
recording of this Lease without the other party's written consent. At either
party's request, the other party 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").
Landlord hereby
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warrants and represents that, as of the Commencement Date, the Property is
properly zoned for the Permitted Use and the Property and the Buildings comply
with all applicable federal, state and local governmental statutes, laws,
ordinances, rules and regulations, and that the Buildings are free from any
structural defects. Furthermore, Landlord expressly acknowledges and agrees that
Tenant shall not be responsible in any manner for, and Landlord shall indemnify
and hold Tenant harmless from, any violations of applicable federal, state and
local governmental statutes, laws, ordinances, rules and regulations affecting
the Buildings or the Property which occurred prior to the Commencement Date or
which are the result of any action or omission of any previous tenant of the
Premises or of Landlord or Landlord's agents, representatives, employees or
assigns.
2.2 Quiet Enjoyment. Tenant upon timely paying the Rent specified
herein, and performing and observing all of the other terms, covenants and
conditions of this Lease, shall peaceably and quietly have, hold and enjoy sole
and exclusive use of the Property during the Term, without interference by
Landlord or any other person or entity, 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, at the place designated in Section 1.1 hereof, 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 in advance on or before the first
(1st) day of each and every calendar month during the Term, in advance, as set
forth in Section 1.5 hereinabove. If the term of this Lease begins on a date
other than the first day of a calendar month or expires on a date other than the
last day of a calendar month, Basic Rent for that calendar month shall be
prorated equitably.
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) ten percent (10%) 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
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(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, twenty (20) 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 twenty (20) 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 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. Landlord promptly upon
receipt will forward to Tenant any bills, statements, assessments, notices or
other instruments asserting or otherwise relating to any such taxes, assessments
or charges. Tenant shall have the right to contest any taxes, assessments and/or
other charges assessed against the Premises.
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.
Except as specifically permitted hereunder, 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, with respect to the Premises,
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, the entire expense thereof,
regardless of when the same shall be incurred or become
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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 which are in the nature of fixtures to real property 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.
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 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 for work performed or materials provided during the
Term. Landlord reserves the right to enter the Premises during non-business
hours 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 as 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 (subject to reasonable
wear and tear and technological obsolence), and repair, clean, sanitary and
safe, including the replacement of equipment, fixtures and all broken glass
(with glass
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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 it 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 reasonable 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
unreasonably withheld or delayed. All such Tenant's Improvements which are
fixtures shall become the property of Landlord upon the installation thereof.
ARTICLE VI - ACCESS TO PREMISES
Tenant agrees that during non-business hours Landlord, its agents,
employees or servants or any person authorized by Landlord may enter the
Premises 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 best 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.
ARTICLE VII - INSURANCE AND INDEMNIFICATION
7.1 Tenant Liability Insurance. Tenant shall maintain, at its sole
expense, during the Term hereof, General Commercial Liability or 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 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 keep in
force all-risk (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
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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. Tenant will cause
such insurance policies to name Landlord as a named insured thereunder with
respect to liability policies and to be written so as to provide that the
insurer waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by the all-risk (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.
7.2 Waiver of Subrogation. To the full extent permitted by applicable
law, Landlord and Tenant each waives all right of recovery against the other
for, and agrees to release the other from liability for, loss or damage to the
extent such loss or damage is covered by valid and collectible insurance in
effect at the time of such loss or damage. In addition, Tenant shall cause 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 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 and Landlord (as the case may
be, the "Indemnitor") hereby indemnifies and holds the other party to this Lease
(Landlord or Tenant, as the case may be, the "Indemnitee") harmless from and
against any injury, expense, damage, liability or claim, imposed on Indemnitee
by any person whomsoever (except to the extent caused by the gross negligence or
willful misconduct of Indemnitee or Indemnitee's agents, employees,
representatives or contractors), whether due to damage to the Premises, claims
for injuries to the person or property of any other person in or about the
Premises for any purpose whatsoever, or administrative or criminal action by a
governmental authority, where such injury, expense, damage, liability or claim
results either directly or indirectly from the act (other than any act required
by the terms of this Lease), omission, negligence, misconduct or breach of any
provisions of this Lease by Indemnitor or employees of Indemnitor. Indemnitor
further agrees to reimburse Indemnitee for any reasonable costs or expenses,
including, but not limited to, court costs and reasonable attorney's fees
actually incurred, which Indemnitee actually incurs in investigating, handling
or litigating any such claim or any action by a governmental authority. This
provision shall survive the expiration or earlier termination of this Lease.
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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 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 fifty percent (50%) or more of the total square footage of all Buildings and
other improvements on the Premises (hereinafter, a "Casualty"), 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 specified in
Tenant's notice. 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 Landlord's insurance 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 and all
Rent and other charges shall be prorated on a daily basis and adjusted between
Landlord and Tenant as of the date of such termination. 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, then, for the remainder of the Initial Term and any renewal term, Basic
Rent shall be apportioned according to the part of the Buildings and the
Property remaining usable by tenant.
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8.3 Condemnation Award. All compensation awarded or paid for any taking
or acquiring under the power or threat of 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 and 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 allowed for loss of lease, moving expense, fixtures and other equipment
installed by it, provided no such claim shall diminish or adversely affect
Landlord's award.
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, assign this Lease or sublet the Premises
to any wholly-owed subsidiary of Tenant, to the parent corporation of Tenant, or
to a wholly-owned subsidiary of the parent corporation of Tenant.
ARTICLE X - SUBORDINATION AND ATTORNMENT
10.1 Subordination. This Lease shall be subject and subordinate to any
first priority deeds to secure debt which may now or hereafter affect this
Lease, the Building or the Property and also to all renewals, modifications,
extensions, consolidations, and replacements of such deeds to secure debt. In
confirmation of the subordination set forth in this paragraph, Tenant shall, at
Landlord's request, execute and deliver such further instruments as may be
desired by any holder of a first priority deed to secure debt (a "Mortgagee").
Tenant shall also deliver to any such Mortgagee within ten (10) days of written
request an attornment agreement, providing that Tenant shall continue to abide
by and comply with the terms and conditions of this Lease in the event such
Mortgagee takes title to the Property, so long as the Mortgagee delivers to
Tenant a nondisturbance agreement (which nondisturbance agreement may be a part
of the above-mentioned attornment agreement), which nondisturbance agreement
shall provide that so long as Tenant continues to abide by the terms and
conditions of this Lease, Mortgagee will permit Tenant to continue to occupy the
Premises.
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10.2 Attornment. In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale or conveyance
in lieu of foreclosure under any deed to secure debt, this Lease shall continue
in full force and effect, Tenant shall at the option of the purchaser at such
foreclosure or other sale, attorn to such purchaser and recognize such person as
Landlord under this Lease, and Tenant's quiet possession shall not be disturbed
so long Tenant is not in default hereunder. In the event that such purchaser
requests and accepts such attornment, from and after the time of such
attornment, Tenant shall have the same remedies against such purchaser for the
breach of an agreement contained in this Lease that Tenant might have had
against Landlord if the deed to secure debt had not been terminated or
foreclosed.
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 when due and such failure to
pay continues for more than ten (10) business days after receipt of written
notice from Landlord (provided that such ten (10) 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 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); or (c) becomes bankrupt,
insolvent or files any debtor proceeding or 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; or makes an assignment for the benefit
of creditors, (any or all of the occurrences in this subsection 11.1 (c) shall
be deemed a default on account of bankruptcy for the purposes hereof); 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
to 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 Tenant may incur by
reason of the termination of this Lease and/or Tenant's right to possession
hereunder due to Tenant's default. 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, it being understood that Landlord shall have no obligation to
mitigate Tenant's damages by reletting the Premises. 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
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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 Landlord Default: Tenant's Remedies. If Landlord fails to observe
and perform any of the covenants, agreements, provisions and conditions herein
contained which are to be observed or performed by Landlord and persists in such
failure for more than thirty (30) days after written notice from Tenant of such
failure (provided such thirty (30) day grace period shall not be available more
than three (3) times in any twelve (12) month period) then, in addition to any
and all other remedies available to Tenant hereunder or in equity or at law, (a)
if Landlord's default hereunder materially and adversely affects Tenant's use
and enjoyment of the Premises as intended herein, Tenant may terminate this
Lease upon five (5) days' written notice to Landlord; or (b) Tenant may perform,
on behalf of and at the expense of Landlord, any obligation of Landlord under
this Lease which Landlord has failed to perform, and the cost of such
performance by Tenant together with interest thereon at the rate of ten percent
(10%) per annum from the date of such expenditure shall be payable by Landlord
to Tenant upon demand.
11.3 Rights and Remedies. The various rights and remedies herein
granted to Landlord or Tenant shall be cumulative and in addition to any others
Landlord or Tenant may be entitled to by law or in equity, and the exercise of
one or more rights or remedies shall not impair Landlord's or Tenant'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 or Tenant shall deem desirable. The failure of Landlord or Tenant to
insist upon strict performance by the other party 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 the other party of any of the covenants, conditions, or agreements of
this Lease. No surrender of the Premises shall be effected by Landlord's or
Tenant's acceptance of Rent or any other sums or by any other means whatsoever
unless the same be evidenced by Landlord's or Tenant's written acceptance of
such as a surrender. In all events, Landlord or Tenant shall have the right upon
notice to the other party to cure any breach by the other party at the other
party's sole cost and expense, and the breaching party shall reimburse the
non-breaching party for such expense upon demand. The breaching party shall
reimburse the non-breaching party for attorney's fees and other expenses
incurred by the non-breaching party under this Article XI.
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
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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.
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.
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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 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. Landlord and Tenant hereby waive the 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 or 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.
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13.12 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.
13.13 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
include the masculine, feminine and neuter genders and the singular form shall
include the plural when the context so requires.
13.14 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.
13.15 Hazardous Substances. (a) Tenant hereby covenants that Tenant and
its agents, employees and contractors will not generate, store, use, treat or
dispose of any "Hazardous Substances" (as hereinafter defined) in, on or at the
Premises, except for Hazardous Substances as are commonly legally used or stored
(and in such amounts as are commonly legally used or stored) as a consequence of
using the Premises for the Permitted Use, but only so long as Tenant complies in
all material respects with all laws, statutes, rules, orders, regulations,
ordinances and decrees concerning the use, storage and disposal of such
Hazardous Substances.
(b) Tenant hereby agrees to indemnify Landlord and hold Landlord
harmless from and against any and all losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' fees
actually incurred by Landlord, costs of any settlement or judgment and claims of
any and every kind whatsoever paid, incurred or suffered by, or asserted
against, Landlord by any person or entity or governmental agency for, with
respect to, or as a direct or indirect result of, the presence on or under, or
the escape, seepage, leakage, spillage, discharge, emission, discharging or
release on or from, the Premises of any Hazardous Substance (including, without
limitation, any losses, liabilities, including without limitation strict
liability, damages, injuries, expenses, including without limitation reasonable
attorneys' fees actually incurred by Landlord, costs of any settlement or
judgment or claims asserted or arising under the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), any so-called federal,
state or local "Superfund" or "Superlien" laws, or any federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability, including strict liability, or standards of
conduct concerning any Hazardous Substance); provided, however, that the
foregoing indemnity is limited to matters arising solely from the violation of
the covenants and agreements of Tenant contained in the preceding paragraph and
excludes matters caused by Landlord or Landlord's agents, employees, and
representatives and does not extend to Hazardous Substances on the Premises as
of the Commencement Date.
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(c) For purposes of this Lease, "Hazardous Substances" shall mean and
include those elements or compounds which are contained in the lists of
hazardous substances or wastes now or hereafter adopted by the United States
Environmental Protection Agency ("EPA") or the lists of toxic pollutants
designated now or hereafter by EPA or which are defined as hazardous, toxic,
pollutant, infectious or radioactive by CERCLA or any Superfund law or any
Superlien law or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter in effect. In
addition, for purposes of this Lease, the term "Hazardous Substances" also shall
include petroleum and related by-products and their constituents.
(d) Landlord shall have the right but not the obligation, and without
limitation of Landlord's rights under this Lease, to enter onto the Premises or
to take such other actions as it deems necessary or advisable to clean up,
remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous
Substance following receipt of any notice from any person or entity (including,
without limitation, EPA) asserting the existence of any Hazardous Substance in,
on or at the Premises or any part thereof which, if true, could result in an
order, suit or other action against Tenant and/or Landlord; provided, however,
Landlord agrees that, except in the case of an emergency, Landlord will take
such action only after written notice to Tenant of the alleged existence of
Hazardous Substances and the failure by Tenant within a reasonable period of
time following receipt of such notice to commence, or the failure by Tenant to
thereafter diligently pursue to completion, the appropriate action to clean-up,
remove, resolve or minimize the impact of such Hazardous Substances. All
reasonable costs and expenses incurred by Landlord in the exercise of any such
rights, which costs and expenses result from the violation of the covenants and
agreements of Tenant contained in this Paragraph 13.15, shall be deemed
Additional Rent under this Lease and shall be payable by Tenant upon demand. The
indemnity set forth in this Paragraph 13.15 shall survive the expiration or
earlier termination of this Lease; provided, however, if within fifteen (15)
days after such expiration or termination Tenant requests that an environmental
audit of the Premises be conducted at Tenant's expense by a mutually acceptable
engineer or other consultant then the foregoing indemnity shall survive only
with respect to (i) items revealed by such audit (or any subsequent audit
conducted as a result of such initial audit within ninety (90) days of
Landlord's receipt of the report of the initial audit), and (ii) any items
actively concealed by Tenant.
(e) Landlord hereby warrants and represents to Tenant that, to the best
knowledge and belief of Landlord, no portion of the Property has been affected
by any Hazardous Substance in violation of applicable laws. Landlord hereby
covenants that Landlord and its agents, employees and contractors will not
generate, store, use, treat or dispose of any Hazardous Substances in, on or
about the Property.
(f) Landlord covenants and agrees that if any Hazardous Substances are
found on the Property in such amounts and locations as would require Landlord to
remove such Hazardous Substances as a matter of law, then Landlord shall remove
or cause to be removed such Hazardous Substances. Landlord shall indemnify and
hold Tenant harmless from any and all claims, damages, penalties, costs,
liabilities or losses and any and all costs incurred due to the investigation,
clean-up,
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removal or restoration of the Property, Building or Premises, if such claims,
damages, penalties, costs, liabilities or losses are incurred by the actions of
Landlord, Landlord's employees, agents, representatives or contractors and which
involve Hazardous Substances. This provision shall survive the expiration or
sooner termination of this Lease.
13.16 Waiver. The waiver by either party 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 either party, unless such waiver be in writing by the waiving party
and delivered to the other party.
13.17 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.
13.18 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.
IN WITNESS WHEREOF, this Lease has been executed under seal as of the
day and year first above written.
LANDLORD:
JAY LEASING, INC.
By:
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Witness James G. Stelzenmuller, III, President
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TENANT:
JAY AUTOMOTIVE GROUP, INC.
By:
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Witness Its:
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EXHIBIT A
DESCRIPTION OF PREMISES
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