December 20, 2003
THIS LEASE, made this 20th day of December, 2003 by and between Tunnel
Properties, LLC, first party (hereinafter called "Landlord"): and American
Consumers, Inc., second party, (hereinafter called "Tenant"):
W I T N E S S E T H:
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Premises
1. The Landlord, for and in consideration of the rents, covenants,
agreements and stipulations hereinafter mentioned, reserved, and contained, to
be paid, kept and performed by the Tenant, has leased and rented, and by these
presents does lease and rent, unto the said Tenant, and said Tenant hereby
agrees to lease and take upon the terms and conditions which hereinafter appear,
the following described property previously leased to Xxxxxxx'x Food Stores,
Inc., (hereinafter called "Premises"), to wit:
0000 XXXXXXXXXXX XXXX
XXXXXX XXXX, XXXXXXXXX XXXXXX, XXXXXXX 00000
Term
2. To have and hold the same for an initial term beginning on the 1st day
of January, 2004 and ending on the 31st day of August, 2007, at midnight, unless
sooner terminated as hereinafter provided. Any rent due for December, 2003 will
be pro rated and paid prior to December 31, 2003. The rent for the initial term
will be $4,000.00 per month.
Renewal Term
3. Tenant is hereby granted three (3) options to renew this Lease. Each
of the options may be exercised by giving Landlord thirty (30) days written
notice prior to the expiration of the initial term or any renewal term.
The options are as follows:
MONTHLY
OPTION TERM RENTAL
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1 September 1, 2007 - August 31, 2012 $4,300.00
2 September 1, 2012 - August 31, 2017 $4,600.00
3 September 1, 2017 - August 31, 2022 $4,900.00
Rental
4. Tenant agrees to pay Landlord promptly on the first day of each month
in advance, during the term of this Lease a monthly rental of $4,000.00. The
obligation to pay rent shall begin January 1, 2004. Tenant may not either remain
behind in his payments or routinely get behind in making a payment. More than
one (1) late payment within a twelve (12) month period will constitute default
of the agreement at the option of the landlord. All payments more than ten (10)
days late will bear an interest charge of 18% per annum until paid in full. In
addition, any late charges or other expenses resulting from the action or
inaction of the Tenant and which are paid by the Landlord would be charged back
to the Tenant in the next monthly rent payment.
Utility Bills and Taxes
5. Tenant shall pay all utility bills, including but not limited to
water, sewer, gas, electricity, fuel, light 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. If Tenant fails to pay any of said utility bills or
charges for garbage collection or other sanitary services, Landlord may pay the
same and such payment may be added to the rental of the premises next due as
additional rental. Landlord shall maintain fire insurance and shall pay all
real estate taxes and maintain the parking lot and septic tank for the building.
Landlord will maintain liability insurance for the parking lot.
Maintenance of Premises
6. Landlord, at its expense and risk, shall maintain and repair
(including all necessary replacements) the roof, foundation, underground or
otherwise concealed plumbing, structural soundness of the exterior walls,
excluding windows and doors, heating, air conditioning, septic tank sewer system
and the exterior of the building in general; additionally, Landlord shall
maintain and repair but not clean the parking lot. Landlord will not allow any
other tenants in the shopping center to sell grocery items.
7. Tenant, at is expense and risk, shall maintain and repair, including
all necessary replacements, the interior plumbing, windows, window glass, plate
glass, doors,and the interior of the building in general.
Destruction of, or Damage to Premises
8. If the premises are totally destroyed by fire, storm, lightening,
earthquake, or other casualties, this Lease shall terminate as of the date of
such destruction, and rental shall be accounted for as between Landlord and
Tenant as of that date. If the Premises are damaged but not wholly destroyed by
any of such casualties, Tenant shall have the option to: (a) terminate the
lease, or (b) xxxxx rent in such proportion of use of Premises
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as has been destroyed and to require Landlord to restore the Premises to
substantially the same condition as before the damage occurred, as speedily as
practicable.
Indemnity
9. Tenant agrees to indemnify and save Landlord harmless against all
claims for damages to persons or property by reason of the use and occupancy of
the leased premises, including any claims by Tenant's agents and employees,
Tenant's customers and invitees, and any and all other persons coming on or
about the leased premises during the term of this Lease or any renewal thereof.
Landlord shall be responsible for claims for damages to persons or property in
the parking lot if such claim was not caused by Tenant. Tunnel Properties, LLC
will be listed as an additional insured under the Tenant's General Liability
Policy and that on an annual basis when the policy is renewed be provided with a
copy of the policy renewal. He shall be notified at any time the policy is not
in force. The General Liability Policy will be for an amount not less than
$1,000,000.00.
Governmental Orders
10. Landlord agrees, at his own expense, to promptly comply with all
requirements of any legally constituted public authority made necessary by
reason of Tenant's occupancy of said premises. It is mutually agreed, however,
between Landlord and Tenant, that if in order to comply with such requirements,
the cost to Landlord shall exceed a sum equal to six (6) month's rent, then the
Landlord is privileged to terminate this Lease by giving written notice of
termination to the other party which termination shall become effective sixty
(60) days after receipt of such notice unless party receiving such notice of
termination shall, before termination becomes effective, pay to party giving
notice all cost of compliance in excess of six (6) month's rent, or secure
payment of said sum in manner satisfactory to the party giving notice.
Condemnation
11. If the whole of the leased premises, or such portion thereof as will
make the premises unusable for the purposes therein leased, be condemned by any
legally constituted authority for any public use or purpose then in either of
said events the term hereby granted shall cease from the date when possession
thereof is taken by public authorities and rental shall be accounted for as
between Landlord and Tenant to recover compensation and damage caused by
condemnation from the condemner. It is further understood and agreed that
neither the Tenant nor Landlord shall have any rights in any award made to the
other by any condemnation authority notwithstanding the termination of the lease
as herein provided.
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Assignment and Subletting
12. Tenant shall have the right and option to sublet any portion of or all
of the leased premises, upon written permission of the Landlord first obtained,
which permission shall not be unreasonably withheld by Landlord.
Removal of Fixtures
13. Tenant may (if not in default hereunder) prior to the expiration of
this lease, or any extension thereof, remove all its fixtures and equipment
provided Tenant repairs all damage to premises caused by such removal.
Cancellation of Lease by Landlord
14. It is mutually agreed that in the event that the Tenant shall default
in the payment of rent, when due, and fails to cure said default within ten (10)
days after written notice thereof from Landlord; or if Tenant shall be in
default in performing any of the terms or provisions of this Lease other than
the provision requiring the payment of rent, and fails to cure such default
within thirty (30) days after the date of receipt of written notice of default
from Landlord; or if Tenant is adjudicated bankrupt or if a permanent receiver
is appointed for Tenant's property and such receiver is not removed then
Landlord reserves the right to terminate this Lease upon thirty (30) days
written notice to Tenant.
Signs
15. Tenant shall be permitted to place such signs on the leased premises,
as it deems necessary.
Entry for Carding, Etc.
16. Landlord may card premises "For Rent" or "For Sale" thirty (30) days
before the termination of this Lease unless the Lease has been renewed as
hereinbefore provided. Landlord may enter the premises at reasonable hours to
exhibit same to prospective purchasers or tenants and to make repairs required
of Landlord under the terms hereof, or to make repairs to Landlord's adjoining
property, if any.
Effect of Termination of Lease
17. 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.
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Mortgage's Rights
18. If disclosed to Tenant in writing by Landlord, Tenant's rights shall
be subject to any bona fide mortgage or deed to secure debt, which is now, or
may hereafter be, placed upon the premises by Landlord.
No Estate in Land
19. 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 by Landlord's consent.
Holding Over
20. If Tenant remains in possession of premises after expiration of the
term hereof, with Landlord's acquiescence and without any express agreement of
parties, Tenant shall be a tenant at will at rental rate in effect at end of
this Lease; and there shall be no renewal of this Lease by operation of Law.
Rights Cumulative
21. All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative but not restrictive to those given by law.
Service of Notice
22. If to Landlord: Xxx Xxxxx, President, Tunnel Properties, LLC, Xxxxxx
Xxxx, Xxxxxxx 00000.
If to Tenant: American Consumers, Inc., X.X. Xxx 0000,Xxxx
Xxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxxxxx, President. Also a copy
to Xxxx X. Xxxxx, Xxxx, Xxxxxxx & Xxxxxxxx, P.C., 0000 XxxXxxxx Xxxx Xxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
Waiver of Rights
23. No failure of Landlord or Tenant to exercise any power or right given
them hereunder, or to insist upon strict compliance by either with their
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute
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a waiver of Landlord's or Tenant's right to demand exact compliance with the
terms hereof.
Time of Essence
24. Time is of the essence of this agreement.
Definitions
25. "Landlord" as used in this Lease shall include first party, their
heirs, representative, assigns and successors in title to the premises.
"Tenant" shall include second party, its heirs and representative, and if this
Lease shall be validly assigned or sublet, shall include also Tenant assignees
or subleases, 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.
Estoppel Certificate
26. (a) Tenant shall at any time upon not less than ten (10) days prior
written notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing: (1) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force and effect),
and the date to which the rent and other charges are paid in advance, if any,
and (2) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
(b) At Landlord's option, Tenant's failure to deliver such statement
within such time shall be a material breach of this Lease or shall be conclusive
upon Tenant (1) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (2) that there are no
uncured defaults in Landlord's performance, and (3) that not more than one
month's rent has been paid in advance or such failure may be considered by
Landlord as a default by Tenant under this Lease.
27. This Agreement shall be interpreted and construed in accordance with
the Laws of Georgia. That venue and jurisdiction shall rest with the
appropriate court(s) in Xxxxxxxxx County.
28. If any legal action or arbitration or other proceeding is brought for
the enforcement of this Agreement or cause of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
agreement, the prevailing party or parties shall be entitled to recover
reasonable attorney's fees and other
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costs incurred in the proceeding. That venue and jurisdiction shall rest with
the appropriate court(s) in Xxxxxxxxx County.
Entire Agreement, Modification
This Lease contains the entire agreement of the parties hereto and no prior
or contemporaneous representations, inducements, promises or agreements, oral or
otherwise, between the parties, not embodied herein, shall be of any force or
effect, regardless of the course of dealing of the parties hereto. This Lease
may only be modified or amended in writing, signed by the parties hereto.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, the day and year first above written.
Signed, sealed and delivered as to Landlord, in the presence of:
LANDLORD
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/s/ Xxx Xxxxx December 17, 2003
_____________________________________ ____________________
Xxx Xxxxx, President Date
Tunnel Properties, LLC
TENANT
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American Consumers, Inc.
/s/ Xxxxxxx X. Xxxxxxxxxx December 17, 2003
By: ________________________________ ____________________
Xxxxxxx X. Xxxxxxxxxx, President Date
ATTEST:
/s/ Xxxx X. Southern
_____________________________
Secretary
Corporate Jurat
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