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EXHIBIT 10.76
STATE OF GEORGIA
COUNTY OF COBB
COMMERCIAL LEASE AGREEMENT
THIS LEASE, made this 7th day of August, 1998, by and between CLD
Properties, a Georgia limited partnership, and ALD Properties, a Georgia
limited partnership, first party, (hereinafter referred to as "Landlord") BAG
of Georgia IV, Inc., second party, (hereinafter referred to as "Tenant").
W I T N E S S E T H
WHEREAS, Landlord owns certain commercial property in Cobb County,
Georgia, which it desires to lease to Tenant and which Tenant desires to lease
from Landlord.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, obligations, rents and other agreements contained herein and set
forth hereafter, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant do hereby
agree as follows:
ARTICLE I
GRANT AND TERM
1.01 Grant of Premises. Landlord leases and grants to the Tenant a Lease
upon the terms and conditions hereinafter set forth and Tenant does hereby
agree to lease the real property and the improvements thereon more particularly
described on the attached Exhibit "A" (the "Premises").
1.02 Term. This Lease shall be effective and binding between the parties
hereto from the date of execution. The term of this Lease (the "Term") shall
commence on the earlier of the date the Landlord delivers possession of the
Premises to Tenant or the day after the closing contemplated by that certain
agreement and Plan of Merger and Reorganization (the "Agreement") dated
February 26, 1996, between Sunbelt Automotive Group, Inc., BAG of Georgia IV,
Inc., and Day's Chevrolet, Inc. and Landlord (the "Rental Commencement Date"),
and terminate ten (10) Lease Years thereafter unless extended pursuant to the
terms hereof.
1.03 Lease Year Defined. "Lease Year" as used herein shall mean (i) each
and every twelve month period during the Term of this Lease, or (ii) in the
event of lease expiration or termination, the period between the last twelve
month period and said expiration or termination. The first such twelve month
period shall commence on the first day of the month following the Rental
Commencement Date.
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1.04 Extension Option. Provided Tenant is not in default hereunder,
Tenant shall have the right and option to extend the Term for up to two (2)
additional five (5) year terms (the "Extension Terms"). All of the terms and
conditions of this Lease shall continue to apply during any such Extension Term
and Base Rent shall continue to increase as set forth in Section 2.02. If
Tenant desires to exercise any extension option it must give Landlord written
notice of such exercise not less than 180 days prior to the commencement of the
Extension Term in question.
ARTICLE II
RENT
2.01 Base Rent. Tenant shall pay to Landlord, without setoff or
deduction, and without prior demand therefor, the following amounts,
(hereinafter referred to as the "Base Rent"):
(a) For the initial Lease Year of this Lease, the Base Rent shall be
Three Hundred Sixty Thousand Dollars and no/100 ($360,000.00) annually, due and
payable in advance on the first day of each calendar month, in equal monthly
installments of $30,000.00.
(b) For Lease Years 2 and 3 of this Lease, the Base Rent shall be
Three Hundred Ninety Thousand Dollars and no/100 ($390,000.00) annually, due
and payable in advance on the first day of each calendar month, in equal
monthly installments of $32,500.00.
(c) For Lease Year 4 of this Lease, the Base Rent shall be Four
Hundred Twenty Thousand Dollars and no/100 ($420,000.00) annually, due and
payable in advance on the first day of each calendar month, in equal monthly
installments of $35,000.00.
2.02 Adjustments to Base Rent in Subsequent Lease Years. The Base Rent
payable hereunder shall be increased at the end of the Fourth Lease Year, and
at the end of every Lease Year thereafter during the Term hereof, including any
Extension Term, in an amount equal to the percentage increase in the U.S.
Department of Labor, Bureau of Labor Statistics, Consumer Price Index which
percentage increase is equal to a number the numerator of which shall be the
Consumer Price Index as of the date two (2) months prior to the date of such
adjustment (the "Comparison Date"), and the denominator of which shall be the
Consumer Price Index as of the date and twelve (12) months preceding the
Comparison Date (but in no such event shall the Base Rent be reduced as a
result of any such adjustment below the Base Rent in effect immediately prior
to such adjustment) and the increased Base Rent shall continue in effect as the
Base Rent until again adjusted as herein provided. If the Consumer Price Index
shall be discontinued or altered, then any successor index which the U.S.
Department of Labor, Bureau of Labor Statistics creates shall be used; and if
there is no such comparable successor substitute index, Landlord and Tenant
shall agree upon such substitute index or formula, and if said parties are not
able to agree upon such substitute, the matter shall be referred to binding
arbitration in accordance with the rules of the American Arbitration
Association in the State of Georgia then prevailing.
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2.03 Additional Rent. All other sums payable hereunder by Tenant shall be
considered Rent.
2.04 Payment of Base Rent. Tenant agrees that it shall pay fifty percent
(50%) of the monthly Base Rent payments to each Landlord by mailing a check for
50% of such Base Rent to CLD Properties, L.P. at 4949 Giles Road, Acworth,
Georgia 30101 and a check for 50% of such Base Rent to ALD Properties, L.P. at
4625 Giles Road, Acworth, Georgia 30101. All other payments due under the Lease
for reimbursements of taxes, insurance or other charges shall be mailed to CLD
Properties, L.P. at the address provided above unless otherwise directed by
Landlord.
2.05 Rent Commencement. If the Rent Commencement Date does not occur on
the first day of the calendar month, rent for the period commencing thereon
until the first day of the following calendar month (the commencement of the
first Lease Year) shall prorated based on the number of days remaining in such
fractional month and paid to Landlords as provided above.
ARTICLE III
UTILITIES
3.01 Utility Bills. Tenant shall pay all utility bills, including but not
limited to, electricity, water, sewer, gas, fuel, and heat bills, for the
leased Premises, and Tenant shall pay all charges for garbage collection
services or other sanitary services rendered to the leased Premises or used by
Tenant in connection therewith. Landlord shall not be liable for any
interruption or failure in the supply of any such utility to the Premises.
ARTICLE IV
CONDUCT OF BUSINESS BY TENANT
4.01 Use of Premises. Premises shall be used for an automobile dealership
or for any other legal purpose. The Premises shall not be used for any illegal
purposes, nor in any manner to create any nuisance or trespass; nor in any
manner to vitiate the insurance or increase the rate of insurance on the
Premises. Tenant agrees to conduct its business in the manner and according to
the generally accepted business principles of the business in which Tenant is
engaged.
4.02 Governmental Orders. Tenant agrees, at its own expense, to promptly
comply with all codes, laws, ordinances, or requirements of any legally
constituted public authority made necessary by reason of Tenant's occupancy of
said Premises. Landlord agrees to promptly comply with any such requirements if
not made necessary by reason of Tenant's specific use and occupancy.
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ARTICLE V
CONDITION OF PREMISES, ALTERATION TO PREMISES
5.01 Acceptance of Premises. Tenant accepts the Premises in its present
condition and as suited for the use intended by Tenant. The taking of
possession of the Premises by Tenant shall be conclusive evidence that Tenant
accepts the same "as is" and that said Premises are in good and satisfactory
condition for the use intended at the time such possession was taken. Tenant
has inspected the Premises prior to execution.
5.02 Alterations to Premises. Tenant shall not alter any structural
elements of any building of the Premises or make other material changes to the
Premises, without the prior approval of the Landlord which shall not be
unreasonably withheld. All construction work done by the Tenant within the
Premises shall be performed in a good and workmanlike manner, in compliance
with all safety codes and other governmental requirements. Whenever Tenant
proposes to do any construction work within the Premises, Tenant shall first
furnish to Landlord plans and specifications in such detail as Landlord may
reasonably request covering such work. To the extent any alterations to the
Premises are made by Tenant without obtaining Landlord's approval, Landlord
shall have the right to require Tenant to remove such alterations and restore
the Premises to its previous condition. Tenant hereby agrees to indemnify
Landlord against, and keep the Premises free from, all mechanics' liens or such
other liens arising from any work performed, material furnished or obligations
incurred by Tenant in connection with the Premises and shall bond off any such
lien within 30 days from notice of such lien's existence.
ARTICLE VI
MAINTENANCE AND REPAIR OF PREMISES
6.01 No Maintenance and Repairs by Landlord. Landlord gives to Tenant
exclusive control of the Premises and shall be under no obligation whatsoever
to inspect, maintain or repair the Premises except for structural repairs
necessary to the roof, foundations and exterior walls of buildings on the
Premises.
6.02 Maintenance and Repairs by Tenant. Tenant shall at Tenant's sole cost
and expense keep and maintain the Premises and any common areas including
parking lots (excluding only the roof, foundations and exterior walls of the
buildings on the Premises), and the fixtures of all buildings including air
conditioning and heating, plumbing, electrical and all other appurtenances
therein in good condition and repair, normal wear and tear excepted, and will
neither commit nor suffer active or permissive waste or injury thereof. Tenant
is to repair any damage caused by any neglect on Tenant's part. All damage or
injury to the Premises caused by the act of negligence of Tenant, its agents,
employees, licensees, invitees or visitors shall be promptly repaired by
Tenant, at its sole cost and expense, and to the reasonable satisfaction of the
Landlord. Landlord may make any repairs or cleaning not promptly made by Tenant
and charge Tenant for the cost thereof, and Tenant hereby agrees to pay such
amounts on demand as additional rent hereunder. Tenant will at its own cost and
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expense replace with glass of the same quality any cracked or broken
glass, including plate glass or any other breakable material used in
the Premises or any interior and exterior windows and doors in the
Premises. Tenant shall keep the Premises in a clean and neat
condition.
6.03 Surrender of Premises. At the expiration or earlier termination of
the Term, Tenant shall surrender the Premises to Landlord in full compliance
with the Tenant's obligations hereunder. Tenant shall surrender the Premises
and fixtures therein in the same condition as the Premises were in upon the
delivery of possession under this Lease, reasonable wear and tear, casualty and
condemnation excepted. All personal property left in the Premises after the
expiration of the Term shall be deemed abandoned and Landlord may remove and
dispose of the same at Tenant's expense.
ARTICLE VII
DESTRUCTION OF PREMISES
7.01 Destruction of, or Damage to the Premises. If fire or any other
casualty damages or destroys the Premises, in whole or in part, Landlord shall,
using only insurance proceeds payable to it, restore the Premises to the
condition existing immediately prior to the commencement of the Term with
Tenant replacing or repairing all Tenant improvements or personalty, and this
Lease shall continue in full force and effect. Landlord shall use reasonable
good faith efforts to expedite such restoration and rebuilding. Rent shall not
abate during any such reconstruction or rebuilding, and Tenant shall maintain
business interruption insurance for such risks.
In the event the Premises should 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 eight (8) Lease Years of the Term of
the Lease, or during the last two (2) Lease Years of any renewal, then and in
such event, Tenant may elect by written notice to Landlord, delivered within
thirty (30) days after such 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 7.01, then Tenant shall direct its insurance company
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 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 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.
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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 7.01, Tenant shall be the owner of its trade
fixtures and shall be entitled to any insurance proceeds attributable to said
trade fixtures.
ARTICLE VIII
DEFAULT OF TENANT
8.01 EVENTS OF DEFAULT. The happening of any one or more of the following
events (hereinafter any one of which may be referred to as an "Event of
Default") during the Term of this Lease, or any renewal or extension hereof,
shall constitute a breach of this Lease on the part of the Tenant: (1) Tenant
fails to pay any rent as provided for herein and fails to cure such default
within ten (10) days of notice from Landlord; (2) Tenant fails to comply with or
abide by and perform any other obligation imposed upon Tenant under this Lease
and fails to cure such default within thirty (30) days of notice from Landlord
or if such default cannot be cured within 30 days if Tenant shall not have
commenced and be continuing a good faith effort to cure such default; (3) Tenant
is adjudicated bankrupt; (4) A permanent receiver is appointed for Tenant's
property and such receiver is not removed within sixty (60) days after
appointment; (5) Tenant, either voluntarily or involuntarily, takes advantage of
any debtor relief proceedings which proceeding is not dismissed within sixty
(60) days under any present or future law, whereby the rent or any part thereof
is, or is proposed to be, reduced or payment thereof deferred; (6) Tenant makes
an assignment for benefit of creditors; or (7) Tenant's effects are levied upon
or attached under process against Tenant, which is not satisfied or dissolved
within Sixty (60) days.
8.02 REMEDIES UPON DEFAULT. Upon the occurrence of any Event of Default,
Landlord may pursue any one or more of the following remedies, separately or
concurrently, without any notice (except as specifically provided above) and
without prejudice to any other remedy herein provided or provided by law:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to surrender the
Premises, Landlord may, without further notice, enter upon the Premises and
expel or remove Tenant and Tenant's effects without being liable for
prosecution or any claim for damages therefor. Tenant indemnifies Landlord and
holds Landlord harmless from and against any loss, cost, damage or expense
including, but not limited to attorney's fees which Landlord may suffer by
reason of such termination whether through inability to relet the Premises,
decrease in rent or otherwise;
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(b) Dispossess and evict the Tenant from the Premises under O.C.G.A.
ss.44-7-50 et seq., or otherwise occupy the Premises in which case Tenant's
rent obligations shall continue in full force and effect, whether or not Tenant
shall have abandoned the Premises or the Landlord has obtained a Writ of
Possession for the Premises, and in such event Landlord shall be entitled to
enforce all of Landlord's rights and remedies under this Lease, including the
right to recover rent from the Tenant as it becomes due hereunder. In such
event Landlord may alter or improve and relet the Premises as the agent of
Tenant without advertisement and by private negotiations to any party and for
any reasonable term and receive the rent therefor. Tenant shall pay Landlord
any deficiency that may arise by reason of such reletting on demand, but Tenant
shall not be entitled to any surplus so arising.
(c) Refuse to accept a surrender of the Premises in which event
Landlord may allow the Premises to remain idle and sue Tenant for Rent and
breach of contract.
(d) As agent of Tenant, do whatever Tenant is obligated to do by the
provisions of this Lease, including but not limited to repairing the Premises,
without being liable to prosecution of any claim for damages therefor, in order
to accomplish the purpose of this Lease. Tenant agrees to reimburse Landlord
immediately upon demand for expenses which Landlord may occur in effecting
compliance with this Lease on behalf of Tenant.
(e) Notwithstanding the fact that Landlord has no affirmative duty
to mitigate its damages, Landlord does agree to cooperate with Tenants efforts
to find a replacement tenant and Landlord will not unreasonably prevent Tenant
from taking any reasonable act to mitigate Landlord's damages.
8.03 Non-Waiver. Pursuit by Landlord of any of the foregoing remedies
shall not preclude the pursuit of general or special damages incurred by
Landlord, or of any of the other remedies provided herein or by law. No delay
or omission of Landlord to exercise any right or power arising from any event of
default on the part of the Tenant shall impair any such right or power to be
construed to be a waiver of any such default and acquiescence therein.
8.04 Remedies Cumulative. No act or thing done by Landlord or Landlord's
employees or agents during the Term shall be deemed an acceptance of a
surrender of the Premises. Neither the mention in this Lease of any particular
remedy hereunder, or the exercise of any remedy hereunder by the Landlord,
shall preclude Landlord from any other remedy Landlord may have under this
Lease, at law or in equity. Any waiver of or redress for any violation of any
covenant or condition contained in this Lease or any of the rules now or
hereafter adopted by the Landlord shall not prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation. The receipt by the Landlord of rent with
knowledge of the breach of any covenant in this Lease shall not be deemed a
waiver of such breach.
8.05 Attorney's Fees for Tenant Default. If any rent owing under this
Lease is collected by or through an attorney at law, Tenant agrees to pay
Fifteen percent (15%) thereof
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as attorney's fees.
8.06 Interest. All past due sums of any description owned by Tenant
under this lease shall bear interest at the rate of Eighteen Percent (18%) per
annum.
8.07 Multiple Defaults. Anything to the contrary notwithstanding, Tenant
expressly agrees that if there should be more than two events of monetary
default or four events of non-monetary default during any one Lease Year
hereunder, Landlord may proceed with any of Landlord's remedies under this
paragraph, and there shall exist an event of default which Tenant shall have no
right to cure.
ARTICLE IX
INSURANCE AND INDEMNITY
9.01 Insurance Obtained by Tenant.
(a) Tenant shall maintain workmen's compensation insurance as
required by law.
(b) Tenant shall, at all times during the term hereof and at its own
cost and expense, procure and continue in force comprehensive general liability
insurance for bodily injury and property damage, adequate to protect Landlord
against liability for injury to or death of any person, arising in connection
with the construction of improvements on the Premises; Tenant's use or operation
of the Premises; or the condition of the Premises. The limits of such policy or
policies are to be in amounts not less than One Million Dollars ($1,000,000.00)
with respect to injuries or death of any one person, Three Million Dollars
($3,000,000.00) with respect to any casualty or occurrence, and Five Hundred
Thousand Dollars ($500,000.00) with respect to property damage. The liability
policies described above shall insure performance by Tenant of the indemnity
provisions of this Lease. The limits of said insurance shall not, however,
limit the liability of Tenant hereunder.
(c) All insurance required to be carried by Tenant hereunder shall
be issued by responsible insurance companies, qualified to do business in the
State of Georgia, and holding a general policy holder's rating reasonably
acceptable to Landlord. Each policy shall name Landlord, and at Landlord's
request any mortgagee of Landlord, as an additional insured, as their respective
interests may appear, and copies of all policies or certificates evidencing the
existence and amounts of such insurance shall be delivered to Landlord by
Tenant prior to Tenant's occupancy of the Premises. Landlord and Landlord's
lender, if any, shall be added as parties to be notified by said insurance
company of any notice of termination of coverage. Tenant shall furnish Landlord
with copies of renewals or "binders" of any such policy upon request. Tenant
agrees that if Tenant does not take out and maintain such insurance, Landlord
may (but shall not be required to) procure said insurance on Tenant's behalf
and charge the Tenant the premiums, plus interest pursuant to Article VIII
payable upon demand. Tenant shall have the right to provide such insurance
coverage pursuant to
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blanket policies obtained by the Tenant provided such blanket policies
expressly afford coverage to the Premises and to Tenant as required by this
Lease. Tenant shall not do or permit to be done anything which shall
invalidate the insurance policies referred to above.
(d) Tenant shall obtain and maintain in force and effect during the
Term of this Lease an insurance policy or policies of all risk, fire, extended
coverage, theft, vandalism, malicious mischief, and other casualty, covering
loss or damages to any and all of Tenant's personalty and trade fixtures in the
Premises, including but not limited to furnishings, equipment, HVAC systems,
inventory and stock; as well as business interruption insurance in such an
amount as will reimburse Tenant for direct or indirect loss of earnings
attributable to any peril insured against under this provision.
9.02 Landlord's Casualty Insurance. Landlord shall maintain in effect
policies of property damage insurance covering all the improvements on the
Premises in an amount not less than one hundred percent (100%) of their actual
replacement cost from time to time during the Term of this Lease. Tenant shall
reimburse Landlord on demand for all costs, expenses and premiums incurred by
Landlord in obtaining and maintaining these insurance policies as additional
rent.
9.03 Indemnity. Tenant agrees to indemnify and hold harmless Landlord
against any injury, expense, damage, liability or claim imposed on Landlord by
any person whomsoever in any way arising out of the Tenant's use and occupancy
of the Premises or breach of this Lease, including any reasonable attorney's
fees or court costs incurred defending against any said claim, except those
damages and claims arising out of the negligence or any willful act of the
Landlord. Tenant also hereby releases Landlord from any and all damages to both
person and property arising out of Tenant's use of the Premises except damages
caused to Tenant by the negligence or any willful act of the Landlord. Tenant
further agrees to reimburse Landlord for any costs or expenses including, but
not limited to, court costs and reasonable attorney's fees, which Landlord may
incur in investigating, handling or litigating any claim or action brought by a
governmental authority against Landlord as a result of Tenant's use or
occupancy of the Premises.
9.04 Waiver of Subrogation. Tenant and Landlord hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
under this paragraph, which perils occur in, on or about the Premises, whether
due to the negligence of Landlord or Tenant or their agents, employees,
contractors and/or invitees, to the extent to any recovery by the injured party
under such insurance. Tenant and Landlord shall upon obtaining the policies of
insurance required hereunder, give notice to the insurance carrier or carriers
that the foregoing mutual waiver of subrogation is contained in this Lease.
ARTICLE X
EMINENT DOMAIN
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10.01 Condemnation. If the whole of the Premises or such substantial
portion of the Premises as will make the Premises entirely unuseable for the
purposes herein Leased, be condemned by a legally constituted authority for any
public use or purpose, then and in such an event, the Term hereby granted shall
cease from the date that possession thereof is taken by public authorities, and
all Rent shall be accounted for as between Landlord and Tenant as of such
date. Each party shall have the independent right to pursue such claims for
damages as are allowed under Georgia law.
ARTICLE XI
ASSIGNMENT AND SUBORDINATION OF TENANT'S INTEREST
11.01 Assignment and Subletting. Tenant shall not, without the prior
written consent of Landlord, which will not be unreasonably withheld based on
the financial condition and business experience of the proposed Assignee or
Subtenant, assign this Lease or any interest hereunder, or sublet Premises or
any part thereof, or permit the use of Premises by any party other than Tenant
or its affiliates. If Tenant desires to assign this Lease or sublease the
Premises, the Tenant will provide notice of its request for approval to the
Landlord at least thirty (30) days prior to the commencement of the proposed
sublease term. Tenant's written request for such approval shall be accompanied
by full financial information on the proposed assignee or subtenant. Tenant
agrees to provide all further information concerning the proposed assignee or
subtenant as reasonably required by Landlord. Consent to any assignment or
sublease shall not destroy this provision, and all later assignments or
subleases shall be made likewise only on the prior written consent of Landlord.
Any Assignee or Subtenant, at the option of Landlord, shall become directly
liable to Landlord for all obligations of Tenant hereunder, but no sublease or
assignment by Tenant shall relieve Tenant or any guarantor of any liability
hereunder.
11.02 Subordination. Tenant agrees that this Lease and Tenant's rights
hereunder are and shall be subordinate to any deed to secure debt now or
hereafter encumbering the Premises or any part thereof. The terms of this
provision shall be self-executing, and no further instrument of subordination
shall be required. Tenant, however, upon the request of Landlord, shall
promptly execute and deliver, within Ten (10) days of the receipt thereof, in
recordable form, any documents or certificates as may be required by Landlord
or Landlord's financing agent to confirm such subordination.
11.03 Estoppel Certificate. Tenant shall at any time and from time to
time, upon not less than Ten (10) days prior written notice from Landlord,
execute, acknowledge and deliver to Landlord's Lender certifying certain facts,
if true, including without limitation, that this Lease is unmodified and in
full force and effect, that the Lease if modified is in full force and effect
as modified, the dates to which rental sums due and other sums due hereunder
are paid in full, and acknowledging that there are not any uncured defaults on
the part of the Landlord hereunder. Tenant's failure to deliver such statement
within such time shall constitute an event of default hereunder.
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ARTICLE XII
TAXES
12.01 Taxes. Tenant will promptly pay upon demand all tax bills for all
City and County real property taxes or other ad valorem taxes attributable to
the Premises, including its pro rata share of such taxes for any partial Lease
Year during the term. Tenant shall be liable for and shall pay before
delinquency, all personal property taxes of any kind whatsoever assessed against
Tenant's personalty or Tenant improvements on the Premises.
ARTICLE XIII
NOTICE
13.01 Service of Notice. Tenant hereby appoints as his agent to receive
service of all dispossessory or distraint proceedings and notices hereunder,
and all notices required under this Lease, the person in charge of Premises at
the time, or occupying said Premises. A copy of all notices under this Lease
shall also be mailed certified mail, return receipt requested, and first class
mail, and notice shall be considered given on the date of such mailing to the
following addresses or the date of hand delivery of such notice to the party
receiving such notice:
Notice to Landlord shall be sent to both: ALD Properties, L.P.
c/o Alvin L. Diemer
4625 Giles Road
Acworth, Georgia 30101
CLD Properties, L.P.
c/o Calvin L. Diemer
4949 Giles Road
Acworth, Georgia 30101
With copy to: G. Phillip Beggs
MOORE INGRAM JOHNSON & STEELE, LLP
192 Anderson Street
Marietta, Georgia 30060.
Tenant: BAG of Georgia IV, Inc.
Suite 250-B
5901 Peachtree Dunwoody Road
Atlanta, Georgia 30328
Attn: General Counsel
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ARTICLE XIV
LIMITATIONS OF LANDLORD'S RESPONSIBILITY
14.01 Waiver of Liability. Anything in this Lease Agreement to the
contrary notwithstanding, Tenant agrees that it shall look solely to the estate
and property of the Landlord in the Premises for the collection of any judgment
(or other judicial process) requiring the payment of any money by landlord in
the event of any default or breach by Landlord with respect to the terms,
covenants and conditions of this Lease Agreement to be observed and/or
performed by Landlord; and no other assets of Landlord or any individuals
comprising Landlord shall be subject to levy, execution or other proceedings
for the satisfaction of Tenant's remedies. In the event that Landlord transfers
this Lease, upon such transfer, Landlord shall be released from all future
liability and obligations hereunder, provided that the transferee of this Lease
assumes the obligations of Landlord hereunder.
14.02 Sale by Landlord. In the event of a sale or conveyance by Landlord
of the Premises, the same shall operate to release Landlord from any future
liability upon any of the covenants or conditions expressed or implied herein
contained in favor of Tenant and in such event Tenant agrees to look solely to
the responsibility of the successor in interest of Landlord in and to this
Lease. Except as set forth in this article, this Lease shall not be affected
by any such sale and Tenant agrees to attorn to the purchaser or assignee. If
any security has been given by Tenant to secure the faithful performance of
any of the covenants of this Lease, Landlord may transfer or deliver said
security as such, to Landlord's successor in interest and thereupon Landlord
shall be discharged from any further liability with regard to said security,
provided that any successor shall not be liable for such security unless such
successor receives same.
14.03 Tenant's Personal Property. Tenant agrees that all of Tenant's
personalty located in or upon the Premises shall be insured by Tenant and shall
be maintained by Tenant on the Premises at Tenant's sole risk.
ARTICLE XV
QUIET ENJOYMENT
Landlord covenants that for so long as there shall not exist an event of
default, if Tenant shall perform all of its covenants hereunder, Tenant shall,
subject to the terms hereof, have the peaceable and quiet enjoyment and
possession of the Premises during the term or any renewal thereof.
ARTICLE XVI
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ENVIRONMENTAL COMPLIANCE
(a) Hazardous Substances.
Tenant shall:
(i) Comply with all federal, state, and local Environmental
Laws, as hereinafter defined, and any other codes, ordinances, regulations,
permits and licensing conditions that (i) govern the discharge, emission, or
disposal of any Hazardous Substance or pollutant, as thereinafter defined, or
(ii) prescribe methods for or place limitations on storing, handling or
otherwise managing Hazardous Substances.
(ii) Provide notice to Landlord of the instigation of any
environmentally-based suit or claim regarding the Premises and of any
correspondence received by Tenant concerning or involving the Premises from any
environmental regulatory agency. Tenant will also provide notice to Landlord of
any "release" as that term is defined under the Environmental Laws, of any
Hazardous Substance on or about the Premises.
(iii) Provide Landlord with a copy of any environmental
assessment or audit concerning the Premises obtained by Tenant.
(iv) Upon expiration or termination of this Lease, render the
Premises to Landlord free from the presence of or contamination by any
Hazardous Substance that did not predate the Execution Date or that were not a
result of Tenant's use and occupancy of the Premises.
(v) For purposes of this provision: (i) "Hazardous Substance"
or "Hazardous Substances" means and includes petroleum products, flammable
explosives, radioactive materials, asbestos or any material containing asbestos,
polychlorinated biphenyls, and/or any hazardous, toxic or dangerous waste,
substance or material defined as such, or any similar term, by, in or for the
purposes of the Environmental Laws (as hereinafter defined), including,
without limitation Section 104(13) of CERCLA (as hereinafter defined); and (ii)
"Environmental Law" or "Environmental Laws" shall mean any "Super Fund" or
"Super Lien" law, or any other federal, state or local statute, or law,
ordinance, code, rule, regulation, order or decree, regulating, relating to, or
imposing liability or standards of conduct concerning any Hazardous Substances
or the environmental condition of the Premises as may now or at any time
hereafter be in effect, including, without limitation the following, as the
same may be amended or replaced from time to time, and all regulations
promulgated thereunder or in connection therewith; the Super Fund Amendments
and Reauthorization Act of 1986; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"); the Clean Air Act; the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act;
the Hazardous Waste management System; and the Occupational Safety and Health
Act of 1970 and the Georgia Underground Storage Tank Act.
(b) Indemnity by Tenant. Tenant shall indemnify, hold harmless and
(at
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Landlord's option) defend Landlord, its agents, servants and employees, from
and against all claims, actions, losses, costs and expenses (including
attorneys' and other professional fees), judgments, settlement payments, and,
whether or not reduced to final judgment, all liabilities, damages, or fines
paid, incurred or suffered by Landlord in connection with loss of life,
personal injury and/or contamination of or damage to property or the
environment arising, from any conduct, activity, act, omission, or operation of
Tenant involving the management or release of any Hazardous Substance in, from
or to the Premises during the term of the Lease or any violation of any
Environmental Law, whether or not Tenant has acted negligently with respect to
such Hazardous Substance or Environmental Law. Tenant's obligations under this
paragraph shall survive the expiration or other termination of this Lease.
Tenant's obligation under this paragraph does not apply to any claims, actions,
losses, costs and expenses (including attorney's fees and other professional
fees), judgments, settlement payments, liabilities, damages or fines paid by or
suffered by Landlord in connection with loss of life, personal injury and/or
contamination of or damage to property or the environment arising from the
presence of, or contamination by, any hazardous substance that predates the
Execution Date, (ii) any such management or release of any hazardous substance
from off Premises; (iii) not the result of Tenant's use and occupancy.
(c) Landlord's Right of Inspection. Landlord reserves the right to
enter the Premises after reasonable notice and at agreed upon times and in a
reasonable manner to inspect the Premises and not more than once per Lease Year
to test for environmental contamination.
ARTICLE XVII
MISCELLANEOUS
17.01 Landlord's Access. Except as otherwise limited in this Lease
Agreement, Landlord may enter the Premises at all reasonable times to inspect
or exhibit the same or to comply with Landlord's obligations under this Lease
Agreement. Landlord may card Premises "For Rent" or "For Sale" ninety (90) days
before termination of this Lease. Landlord may enter the Premises at reasonable
hours to exhibit same to prospective purchasers or tenants and to make repairs
required of Landlord under the terms hereof, or to make repairs to Landlord's
adjoining property, if any. Landlord agrees to give Tenant a minimum of
forty-eight (48) hours advance oral notice prior to entering Premises to make
repairs (except in case of emergency). Landlord agrees not to interfere with
the operation of Tenant's business, except to the extent necessary to make
repairs.
17.02 Effect of Termination of Lease. No termination of this Lease prior
to the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof.
17.03 No Estate in Land. This contract shall create the relationship of
Landlord and Tenant between the parties hereto; no estate shall pass out of
Landlord. Tenant has only a usufruct, not subject to levy and sale, and not
assignable by Tenant except as provided
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herein.
17.04 Rights Cumulative. All rights, powers and privileges conferred
hereunder upon parties hereto shall be cumulative but not restrictive to those
given by law.
17.05 Time of Essence. Time is of the essence of this agreement.
17.06 Definitions. "Landlord" as used in this Lease shall include first
parties, their heirs, representatives, assigns and successors in title to
Premises. "Tenant" shall include second parties, their successors and assigns
and representatives; and if this Lease shall be validly assigned or sublet,
shall include also Tenant's assignees or sublessees as to Premises covered by
such assignment or sublease. "Landlord" and "Tenant" include male and female,
singular and plural, corporation, partnership or individual, as may fit the
particular parties.
17.07 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Georgia.
17.08 Successors. This Lease Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns unless otherwise provided in this Lease
Agreement.
17.09 Headings. The headings under this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of any part of this Lease.
17.10 Force Majeure. Except as otherwise specified herein, either party
hereto shall be excused from performance or any delay and shall not be deemed
in default with respect to the performance of any of the terms, covenants, and
conditions of this Lease when prevented from doing so by causes beyond its
control, which shall include, but not be limited to, all labor disputes,
governmental regulations and controls, fire or other casualty or inability to
obtain any material or services, or act of God.
17.11 Severability. Should any portion hereof be deemed void or
unenforceable through any court order or judicial proceedings, the remaining
portions hereof shall continue in full force and effect.
17.12 Entire Agreement. This Lease constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and no
prior agreement or understanding with regard to any subject matter will be
effective for any purposes. No provision of this Lease may be amended or added
except by agreement in writing signed by the parties hereto or their respective
successors in interest.
17.13 Attorney's Fees. The prevailing party in any litigation between
Landlord and
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Tenant arising out of this Lease shall be entitled to recover reasonable
attorney's fees and court costs. No third-party shall be construed as a
beneficiary of this provision.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
date and year first above written.
"Landlord"
OLD PROPERTIES, L.P. AND
ALD PROPERTIES, L.P.
CLD Properties, L.P.
By: (SEAL)
-------------------------
Calvin L. Diemer
General Partner
ALD Properties, L.P.
By: (SEAL)
-------------------------
Alvin L. Diemer
General Partner
"Tenant"
BAG OF GEORGIA IV, INC.
By: (SEAL)
-------------------------
Name:
-------------------------
Title:
------------------------
[ATTACH CORPORATE SEAL]
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