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EXHIBIT 10.58
LEASE
BY AND AMONG
XXXX X. XXXXXX, as Lessor
AND
XXXX XXXX BUFORD, INC., as Lessee
AND
SUNBELT AUTOMOTIVE GROUP, INC., as Guarantor
1. PARTIES. This Lease is made this 2nd day of June, 1998, by and among
Xxxx X. Xxxxxx, individually, a Georgia resident, (herein called "Lessor"), Xxxx
Xxxx Xxxxxx, Inc., a Georgia corporation (herein called "Lessee") and Sunbelt
Automotive Group, Inc., a Georgia corporation (herein called "Guarantor").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor,
upon all of the conditions set forth herein, that certain real property situated
in Xxxx County, Georgia, commonly known as 0000 Xxxxxx Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxx 00000 and more particularly described as in Exhibit "A"
attached hereto and made a part hereof. Said real property, including the land
and all improvements thereon, is herein called the "Property."
3. TERM AND POSSESSION.
3.1 Initial Term. The initial term hereof shall be for ten (10) years
commencing on the Closing Date as that term is defined in the Agreement and Plan
of Merger and Reorganization dated November 21, 1997, as amended, among Xxxx
Xxxx Buford, Inc., its shareholders, and Xxxxxxxxxxx, et al ("Commencement
Date") and ending on the Tenth (10th) anniversary of the Closing Date, unless
sooner terminated pursuant to any provision hereof.
3.2 Extended Term(s). The Lessee shall have the option, to be exercised as
hereinafter provided, to extend the term of this Lease for two (2) successive
period(s) of five (5) years(s) each (each such period herein referred to as the
"Extended Term"), upon the condition that the Lease is in full force and effect
and there is no default in the performance of any condition hereof at the time
of exercise of the option and at the commencement of the Extended Term. Each
Extended Term shall be upon the same conditions and terms, and the rent
determined and payable, as provided in this Lease, except that there shall be no
privilege to extend the term beyond the expiration of the second Extended Term.
The Lessee shall exercise the option for an Extended Term by notifying the
Lessor in writing at least six (6) months prior to the expiration of the then
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current term. Upon such exercise, this Lease shall be deemed extended without
the execution of any further lease or other instrument. Any reference herein to
the lease term shall include, in addition to the Initial Term, the Extended
Term(s) as to which Lessee exercises its option.
4. RENT.
4.1 Rent Payment, Proration and Sales Taxes. All rental payments due
hereunder shall be paid without notice or demand, and without abatement,
deduction or setoff for any reason unless specifically provided herein. Rent for
any period during the term hereof which is for less than one month shall be a
pro rata portion of the monthly rent installment based on the number of days in
such period and the number of days in the month in question. Rent shall be
payable in lawful money of the United States to Lessor at the address stated
herein or to such other persons or at such other places as Lessor may designate
in writing. In addition, Lessee shall pay to Lessor all sales and use taxes
imposed by the State of Georgia or any other governmental authority from time to
time, upon said rent and any other charges hereunder upon which sales and use
taxes are imposed.
4.2 No Waiver. The acceptance by the Lessor of monies from the Lessee as
rent or other sums due shall not be an admission of the accuracy or the
sufficiency of the amount of such rent or other sums due nor shall it be deemed
a waiver by Lessor of any right or claim to additional or further rent or other
sums due.
4.3 Initial Rent. Beginning on the Closing Date and ending on the date
that is Twelve (12) months after the Closing Date (the "Lease Anniversary")
Lessee shall pay to Lessor as rent for the Property monthly payments of minimum
rent in the amount of Twenty Thousand Dollars ($20,000.00), in advance, on or
before the first day of each month throughout the first lease year.
4.4 Rent Adjustments. Commencing at the beginning of the second lease year,
the base monthly rental for the one year period following the Lease Anniversary
shall equal one percent (1%) of the Fair Market Value (as hereinafter defined)
of the Property (the Initial FMV rent"); provided, however, the Initial FMV Rent
shall not be less than the base monthly rent then in effect. On the second
anniversary after the Closing Date, and on every second anniversary thereafter,
the base monthly rental for the Property shall increase to an amount equal to
the base monthly rental then in effect plus an amount equal to the percentage
increase in the Consumer Price Index ("C.P.I.") published from time to time by
the United States Department of Labor [Bureau of Labor Statistics]. The sum so
calculated shall constitute the new monthly minimum rent hereunder until the
subsequent adjustment, but in no event shall any adjustment reduce the minimum
rent to an amount lower than the minimum rent payable for the month immediately
preceding the date of adjustment. No delay in establishing the rent adjustment
shall be a waiver of Lessor's right to later collect the difference between the
rental at the rate prior to adjustment, which shall continue to be paid until
the adjustment is established, and the rental rate after adjustment. In the
event the compilation and/or publication of the C.P.I. shall be transferred to
any other governmental department or bureau or agency or shall be discontinued,
then the index
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most nearly the same as the C.P.I. shall be used to make such calculation. In
the event that Lessor and Lessee cannot agree on an alternative index, then the
matter shall be submitted for decision to the American Arbitration Association
in accordance with the then rules of said association and the decision of the
arbitrators shall be binding upon the parties. The cost of said arbitration
shall be paid equally by Lessor and Lessee. For purposes herein, the term "Fair
Market Value" shall be the amount determined by the mutual agreement of the
Parties subsequent to a valuation of the Property by an appraiser selected and
paid for by Xxxx Xxxx Xxxxxx, Inc. and a second appraiser selected and paid for
by Xx. Xxxx X. Xxxxxx. If the Parties do not reach an agreement with respect to
the Fair Market Value, a third appraiser shall be selected by the two initial
appraisers and the third appraiser shall determine the Fair Market Value, and
said third appraiser's determination shall be binding on the Parties. The costs
of such a third appraiser, if any, shall be shared equally by the Parties.
5. USE.
5.1 Use. The Property shall be used and occupied only for an automobile
dealership and ancillary uses and for no other purpose. Without limiting the
foregoing, Lessee shall not use nor permit the use of the Property in any manner
that will tend to create waste or a nuisance.
5.2 Compliance with Law and Restrictions. Lessee shall, at Lessee's
expense, execute and comply with all statutes, ordinances, rules, orders,
regulations and requirements of the federal, state, county and city government,
and of any and all of their departments and bureaus, applicable to the Property,
as well as all covenants and restrictions of record, and other requirements in
effect during the term or any part thereof, which regulate the use by Lessee of
the Property. To the best of Lessor's knowledge, the Property is in good
operating condition, reasonable wear and tear excepted.
6. MAINTENANCE, REPAIRS AND ALTERATIONS.
6.1 Casualty and Condemnation. The specific provisions hereof relating to
repairs after casualty or condemnation shall take precedence over the terms of
this Section 6, but only to the extent in conflict herewith.
6.2 Maintenance. Lessee shall, at Lessee's sole cost and expense, maintain
the Property and all components thereof throughout the lease term, (including
maintenance of lighting fixtures) in good, safe and clean order, condition and
repair, including without limitation all plumbing, heating, air conditioning,
ventilating, and electrical facilities and all components thereof, serving the
Property, excepting (a) reasonable wear and tear, (b) loss or damage resulting
from a casualty loss and (c) loss or damage resulting from a condemnation. Upon
the occurrence and continuance of an Event of Default, and, if Lessee fails to
perform Lessee's obligations under this Section 6 or under any other section
hereof, Lessor may at Lessor's option enter upon the Property after ten (10)
days' prior written notice to Lessee (except in the case of emergency, in which
case no notice shall be required), perform such obligations on Lessee's behalf,
and put the Property in good, safe
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and clean order, condition and repair, and the cost thereof together with
interest thereon at the Default Rate (as hereinafter defined), shall be due and
payable as additional rent to Lessor together with Lessee's next rental
installment. Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Property in good order, condition and repair.
6.3 Plate Glass. Lessee shall maintain all plate glass, if any, within or
on the perimeter of the Property.
6.4 Termination of Lease. On the last day of the term hereof, or on any
sooner termination, other than due from casualty loss, Lessee shall surrender
the Property to Lessor in the same condition as received, ordinary wear and tear
excepted, clean and free of debris. Lessee's moveable machinery, furniture,
fixtures and equipment, other than that which is affixed to the Property, may be
removed by Lessee upon expiration of the lease term. Lessee shall repair all
damage caused by this removal. Lessee shall repair any damage to the Property
occasioned by the installation or removal of its trade fixtures, furnishings and
equipment. Upon termination of this Lease for any cause whatsoever, if Lessee
fails to remove its effects, they shall be deemed abandoned, and Lessor may, at
its option, remove the same in any manner that the Lessor shall choose, store
them without liability to the Lessee for loss thereof, and the Lessee agrees to
pay the Lessor on demand any and all expenses incurred in such removal,
including court costs, attorney's fees and storage charges for any length of
time the same shall be in the Lessor's possession. Lessee shall deliver all keys
and combinations to locks within the Property to Lessor upon termination of this
Lease for any reason. Lessee's obligations to perform under this provision shall
survive the end of the lease term.
7. Alterations and Additions.
(a) Lessee shall not, without Lessor's prior written consent, make any
material alterations, improvements, additions, or Utility Installations (as
defined below) in, on, or to the Property. Upon Lessor's written consent,
Lessor may require Lessee to provide Lessor, at Lessee's sole cost and expense,
a lien and completion bond in an amount equal to the estimated cost of such
improvements, to insure Lessor against any liability for construction liens and
to insure completion of the work. Lessor may require that Lessee remove any or
all of said alterations, improvements, additions or Utility Installations at the
expiration of the term, and restore the Property to its prior condition. Should
Lessee make any alterations, improvements, additions or Utility Installations
without the prior approval of Lessor, in addition to all other remedies of
Lessor for Lessee's breach, Lessor may require that Lessee remove any or all of
the same. As used in this Section, the term "Utility Installation" shall mean,
air lines, power panels, electrical distribution systems, air conditioning and
plumbing, if any.
(b) Any material alteration, improvement, addition or Utility Installation
in or to the Property that Lessee shall desire to make shall be presented to
Lessor for approval in written
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form, with proposed detailed description or plans. If Lessor shall give its
consent, the consent shall be deemed conditioned upon Lessee acquiring all
necessary permits to do the work from appropriate governmental agencies, the
furnishing of a copy thereof to Lessor prior to the commencement of the work,
and the compliance by Lessee with all conditions of said permits.
(c) Lessee shall pay, when due, and hereby agrees to indemnify and hold
harmless Lessor for and from, all claims for labor or materials furnished or
alleged to have been furnished to or for Lessee, at or for use in the Property,
which claims are or may be secured by any construction lien against the Property
or any interest therein. Lessee shall give Lessor not less than ten (10) days'
notice prior to the commencement of any work on the Property which might give
rise to any such lien or claim of lien, and Lessor shall have the right to post
notices of non-responsibility in or on the Property as provided by law. If
Lessee shall, in good faith, contest the validity of any such lien, claim or
demand, then Lessee shall, at its sole expense, defend itself and Lessor against
the same and shall pay and satisfy any adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Property, upon
the condition that if Lessor shall require, Lessee shall furnish to Lessor a
surety bond satisfactory to Lessor in an amount equal to such contested lien,
claim or demand indemnifying Lessor against liability for the same and holding
the Property free from the effect of such lien, claim or demand. In addition,
Lessor may require Lessee to pay Lessor's attorney's fees and costs in
participating in such action if Lessor shall decide it is in its best interests
to do so.
(d) Unless Lessor requires their removal, all alterations, improvements,
additions and Utility Installations made on the Property shall become the
property of Lessor and remain upon and be surrendered with the Property at the
expiration of the lease term without compensation to Lessee.
7.1 Lessor's Interest Not Subject to Liens. The interest of Lessor shall
not be subject to liens for improvements made by Lessee, and Lessee agrees to
notify any contractor making such improvements of this provision.
8. INSURANCE; INDEMNITY.
8.1 Property Insurance - Lessee. Lessee shall at all times during the term
hereof, at its expense, maintain a policy or policies insuring the Property
against loss or damage by fire, explosion, and other hazards and contingencies
("all risk," as such term is used in the insurance industry), and plate glass
insurance as required in the reasonable discretion of Lessor, in an amount of
not less than one hundred percent (100%) of the full replacement value, as same
may change from time to time.
8.2 Liability Insurance - Lessee. Lessee shall, at Lessee's sole expense,
obtain and keep in force during the term hereof a policy of bodily injury and
property damage insurance, insuring Lessee and Lessor against any liability
arising out of the use, occupancy or maintenance of the Property and the parking
areas, walkways, driveways, landscaped areas and other areas exterior
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to the Property and appurtenant thereto. Such insurance shall be in an amount
not less than One Million Dollars ($1,000,000.00) combined single limit, and
umbrella liability coverage for an additional Ten Million Dollars
($10,000,000.00). The policy shall insure performance by Lessee of the indemnity
provisions of this Section 8. The limits of said insurance shall not, however,
limit the liability of Lessee hereunder. Upon demand, Lessee shall provide
Lessor, at Lessor's expense, with such increased amounts of insurance as Lessor
may reasonably require to afford Lessor adequate protection for risks insured
under this Section. Lessee, as a material part of the consideration to Lessor,
hereby assumes all risk of damage to property or injury to persons, in, upon or
about the Property arising from any cause and Lessee hereby waives all claims in
respect thereof against Lessor.
8.3 Employees Compensation - Lessee. Lessee shall maintain and keep in
force all employees' compensation insurance required with respect to Lessee's
operations of the Property under the laws of the State of Georgia, and such
other insurance as may be necessary to protect Lessor against any other
liability to person or property arising hereunder by operation of law, whether
such law is now in force or is adopted subsequent to the execution hereof.
8.4 Lessee's Default. Should Lessee fail to keep in effect and pay for such
insurance as it is in this section required to maintain, Lessor may do so, in
which event, the insurance premiums paid by Lessor, together with interest
thereon at the Default Rate from the date paid by Lessor, shall become due and
payable forthwith and failure of Lessee to pay same on demand shall constitute a
breach hereof.
8.5 Lessee's Compliance. Lessee shall not do or permit to be done anything
which shall invalidate the insurance policies referred to in this Section 8.
Lessee agrees to pay any increase in the amount of insurance premiums over and
above the rate now in force that may be caused by Lessee's use or occupancy of
the Property. In the event any increase in premiums is caused by the act or
omission of Lessee in violation of the terms hereof, payment by Lessee of such
increase shall not release Lessee from liability for such violation.
8.6 Insurance Policies. Insurance required hereunder shall be with good and
solvent insurance companies satisfactory to Lessor; in the absence of other
specific directions, such companies shall hold a "General Policyholders Rating"
of at least A minus, or such other rating as may be required by a lender having
a lien on the Property, as set forth in the most current issue of "Best's
Insurance Guide". All policies shall name Lessor as an additional insured.
Lessee shall deliver to Lessor copies of policies of insurance required to be
provided by Lessee under this Section 8 or certificates evidencing the existence
and amounts of such insurance and its compliance with the conditions set forth
in this Section 8. No such policy shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days' prior written
notice to Lessor, and the interest of Lessor under such policies shall not be
affected by any default by Lessee under the provisions of such policies. Lessee
shall, at least thirty (30) days prior to the expiration of such policies,
furnish Lessor with renewals or "binders" thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by
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Lessee upon demand. If required by any mortgage encumbering the Property,
the mortgagee shall also be a named or additional insured and the terms of all
insurance policies shall comply with all other requirements of such mortgage.
8.7 Waiver of Subrogation. Lessee and Lessor each 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 actually insured
against under this Section 8, which perils occur in, on, or about the Property,
whether due to the negligence of Lessor or Lessee or their agents, employees,
contractors and/or invitees. Lessee and Lessor 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.
8.8 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
against any and all injury, expense, damages and claims arising from Lessee's
use of the Property, whether due to damage to the Property, claims for injury to
the person or property of any other Lessee of the building (if applicable) or
any other person rightfully in or about the Property, from the conduct of
Lessee's business or from any activity, work or things done, permitted or
suffered by Lessee or its agents, servants, employees, licensees, customers, or
invitees in or about the Property or elsewhere or consequent upon or arising
from Lessee's failure to comply with applicable laws, statutes, ordinances or
regulations, and Lessee shall further indemnify and hold harmless Lessor from
and against any and all such claims and from and against all costs, attorney's
fees, expenses and liabilities incurred in the investigation, handling or
defense of any such claim or any action or proceeding brought in connection
herewith by a third person or any governmental authority; and in case any action
or proceeding is brought against Lessor by reason of any such claim, Lessee upon
notice from Lessor shall defend the same at Lessee's expense by counsel
satisfactory to Lessor. This indemnity shall not require payment as a condition
precedent to recovery.
8.9 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or about
the Property, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether the said
damage or injury results from latent defects or other conditions arising upon
the Property or upon other portions of the building(s) of which the Property is
a part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other Lessee of the building in which the Property is located.
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9. DAMAGE OR DESTRUCTION.
9.1 Damage or Destruction. In the event that the Property should be damaged
or destroyed by fire, tornado or other casualty then Lessor shall within sixty
(60) days after the date of such damage, commence to rebuild or repair the
Property and shall proceed with reasonable diligence to restore the Property to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Lessor shall not be required to rebuild,
repair or replace any part of the furniture, equipment, fixtures and other
improvements which may have been placed by Lessee or others within the Property,
and in any event Lessor's obligation to repair shall be limited to the extent
proceeds of insurance are available for such purpose. Lessor shall, unless such
damage is the result of any negligence or willful misconduct of Lessee or
Lessee's employees or invitees, allow Lessee a fair diminution of rent during
the time that the Property is unfit for occupancy. Notwithstanding any of the
foregoing, in the event any mortgagee, under a deed of trust, security agreement
or mortgage on the Property, should require that the insurance proceeds be used
to retire the mortgage debt, Lessor shall have no obligation to rebuild and this
Lease shall terminate upon notice to Lessee. Any insurance which may be carried
by Lessor or Lessee against loss or damage to the Property shall be for the sole
benefit of the Lessor and under its sole control. Notwithstanding the above, in
the event such damage or destruction occurs in the last two years of the Initial
Term or Extended Term, either Lessor or Lessee may, at their option elect to
terminate this Lease.
9.2 Abatement of Rent; Lessee's Remedies.
(a) In the event of damage described in this Section 9 which Lessor or
Lessee repairs or restores, the rent payable hereunder for the period during
which such damage, repair or restoration continues shall be abated in proportion
to the degree to which Lessee's use of the Property is impaired. Except for
abatement of rent, if any, Lessee shall have no claim against Lessor for any
damage suffered by reason of any such damage, destruction, repair or
restoration.
(b) If Lessor shall be obligated to repair or restore the Property under
the provisions of this Section 9 and shall not commence such repair or
restoration within sixty (60) days after such obligation shall accrue, Lessee
may at Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of the
date of such notice and Lessee shall have no other rights against Lessor. Having
commenced repairs or restoration, Lessor shall have a good faith obligation to
proceed with same on a timely basis until such work is completed.
10. PROPERTY TAXES.
10.1 Definition of "Real Property Taxes". As used herein, the term "real
property taxes" shall include any form of tax or assessment, general, special,
ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than
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inheritance, personal income or estate taxes) imposed on the Property by any
authority having the direct or indirect power to tax, including any city, state
or federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, against any legal or equitable
interest of Lessor in the Property or in the real property of which the Property
is a part. The term "real property tax" shall also include any tax, fee, levy,
assessment or charge (i) in substitution of, partially or totally, any tax, fee,
levy, assessment or charge hereinabove included within the definition of " real
property tax" or (ii) the nature of which was hereinbefore included within the
definition of "real property tax," or (iii) which is imposed as a result of a
transfer, either partial or total, of Lessor's possessory interest in the
Property, or which is added to a tax or charge hereinbefore included within the
definition of real property tax by reason of such transfer, or (iv) which is
imposed by reason of this transaction, any modifications or changes hereto, or
any transfers hereof. The term "real property tax" shall not include any income,
estate or inheritance tax assessed against Lessor, documentary stamp tax imposed
as a result of Lessor's transfer of the fee interest in the Property, or any
sales tax on rent or other payments due from Lessee hereunder
10.2 Payment of Taxes. Lessee shall pay the real property taxes, as defined
in Section 10.1, applicable to the Property throughout the lease term. If the
term hereof shall not commence or expire concurrently with the beginning or
expiration of the tax year, Lessee's liability for real property taxes for the
first and last partial lease years shall be prorated on an annual basis.
10.3 Personal Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Lessee contained on the Property or elsewhere
or on any leasehold improvements made to the Property by Lessee, regardless of
the validity thereof or whether title to such improvements shall be in the name
of Lessee or Lessor. When possible, Lessee shall cause said trade fixtures,
furnishings, equipment and all other personal property to be assessed and billed
separately from the real property of Lessor. If any of Lessee's personal
property shall be assessed with Lessor's real property, Lessee shall pay Lessor
the taxes attributable to Lessee's personal property within ten (10) days after
receipt of a written statement from Lessor setting forth the taxes applicable to
Lessee's property.
11. UTILITIES.
(a) Lessee shall punctually pay for all water and sewer charges, and for
all gas, heat, electricity, telephone, garbage collection and all other
utilities and services consumed during the term hereof at the Property, together
with any taxes thereon.
(b) If charges to be paid by Lessee hereunder are not paid when due and
Lessor elects to pay same, interest shall accrue thereon from the date paid by
Lessor at the Default Rate, and such charges and interest shall be added to the
subsequent month's rent and shall be collectible from Lessee in the same manner
as rent. Lessor shall not be liable for damage to Lessee's business and/or
inventory or for any other claim by Lessee resulting from an interruption in
utility services.
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12. ASSIGNMENT AND SUBLETTING.
12.1 Assignment or Subletting. Lessee may not sublet the demised premises
or any portion thereof or assign this Lease for the whole or any part of the
term hereof without the consent of the Landlord, which consent may not be
unreasonably withheld. For purposes of this Lease, the sale or transfer of a
controlling interest in Lessee shall constitute an assignment. If Lessee desires
to assign this Lease or sublet the Property or any portion thereof, it shall
submit in writing to Lessor; (i) the name of the assignee or Sublessee; (ii) the
nature of the assignee's or Sublessee's business to be conducted on the
Property; (iii) the terms of the assignment or sublease; and (iv) such financial
information as Lessor may reasonably request concerning the assignee or
Sublessee.
12.2 No Release or Waiver. Unless Lessor agrees in writing to the contrary,
no subletting or assignment shall release Lessee from Lessee's obligation or
alter the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee of Lessee or any successor of Lessee in the performance of any of
the terms hereof, Lessor may proceed directly against Lessee without the
necessity of exhausting remedies against said assignee. Lessor may consent to
subsequent assignments or subletting hereof or amendments or modifications to
this Lease with assignees of Lessee or any successor of Lessee, and without
obtaining its or their consent thereto and such action shall not relieve Lessee
of liability hereunder.
13. DEFAULTS; REMEDIES.
13.1 Defaults. The occurrence and continuance of any one or more of the
following events shall constitute an Event of Default by Lessee:
(a) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due, where such failure
shall continue for a period of ten (10) days after written notice thereof from
Lessor to Lessee. In the event that Lessor serves Lessee with a notice to pay
rent or vacate pursuant to applicable unlawful detainer or other statutes, such
notice shall also constitute the notice required by this subsection;
(b) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions hereof to be observed or performed by Lessee, other
than described in Subsection a) above, where such failure shall continue for a
period of thirty (30) days after written notice thereof from Lessor to Lessee.
(c) (i) The making by Lessee of any general arrangement or assignment for
the benefit of creditors; (ii) Lessee becomes a "debtor" as defined under the
Federal Bankruptcy Code or any successor statute thereto or any other statute
affording debtor relief, whether state or federal,
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(unless, in the case of a petition filed against Lessee, the same is dismissed
within thirty (30) days), or admits in writing its present insolvency or
inability to pay its debts as they mature; (iii) the appointment of a trustee or
receiver to take possession of all or a substantial portion of Lessee's assets
located at the Property or of Lessee's interest in this Lease; or (iv) the
attachment, execution or other judicial seizure of all or a substantial portion
of Lessee's assets located at the Property or of Lessee's interest in this
Lease; and/or (e) The discovery by Lessor that any financial statement,
warranty, representation or other information given to Lessor by Lessee, any
assignee of Lessee, any Sublessee of Lessee, any successor in interest of Lessee
or any guarantor of Lessee's obligation hereunder, in connection with this
Lease, was materially false or misleading when made or furnished.
13.2 Remedies. Upon the occurrence and during the continuance of an event
of default by Lessee, Lessor may (but shall not be obligated), with or without
notice or demand and without limiting Lessor in the exercise of any right or
remedy which Lessor may have by reason of such default or breach, independently
or simultaneously:
(a) Terminate Lessee's right to possession of the Property by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Property to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason of
Lessee's default, including accrued rent, the cost of recovering possession of
the Property, expenses of reletting, reasonable attorney's fees, and any
customary and normal real estate commission actually paid to third parties;
(b) Reenter and take possession of the Property and relet or attempt to
relet same for Lessee's account, holding Lessee liable in damages for all
expenses incurred by Lessor in any such reletting and for any difference between
the amount of rents received from such reletting and those due and payable under
the terms hereof. In the event Lessor relets the Property, Lessor shall make
reasonable efforts to lease the Property or portions thereof for such periods of
time and such rentals and for such use and upon such covenants and conditions as
Lessor, in its reasonable discretion, may elect, and Lessor may make such
repairs to the Property as Lessor may deem reasonably necessary. Lessor shall
be entitled to bring such actions or proceedings for the recovery of any
deficits due to Lessor as it may deem advisable, without being obliged to wait
until the end of the term, and commencement or maintenance of any one or more
actions shall not bar Lessor from bringing other or subsequent actions for
further accruals, nor shall anything done by Lessor pursuant to this Subsection
13.2(b) limit or prohibit Lessor's right at any time to pursue other remedies of
Lessor hereunder;
(c) Declare all rents and charges due hereunder immediately due and
payable, and thereupon all such rents and fixed charges to the end of the term
shall thereupon be accelerated, and Lessor may, at once, take action to collect
the same by distress or otherwise. In the event of acceleration of rents and
other charges due hereunder which cannot be exactly determined as of the date of
acceleration and/or judgment, the amount of said rent and charges shall be as
determined by trier of fact in a reasonable manner based on information such as
previous
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fluctuations in the C.P.I. and the like;
(d) Perform any of Lessee's obligations on behalf of Lessee in such manner
as Lessor shall reasonably deem appropriate, including payment of any moneys
necessary to perform such obligation or obtain legal advice, and all expenses
incurred by Lessor in connection with the foregoing, as well as any other
amounts necessary to compensate Lessor for all detriment caused by Lessee's
failure to perform which in the ordinary course would be likely to result
therefrom, shall be immediately due and payable from Lessee to Lessor upon
Lessee's receipt of an invoice from Lessor for the same, with interest at the
Default Rate; such performance by Lessor shall not cure the default of Lessee
hereunder, unless Lessee reimburses Lessor for such performance within ten (10)
days of demand for the same, and Lessor may proceed to pursue any or all
remedies available to Lessor on account of Lessee's Event of default; if
necessary Lessor may enter upon the Property after ten (10) days' prior written
notice to Lessee (except in the case of emergency, in which case no notice shall
be required), perform any of Lessee's obligations with respect to which an Event
of Default on the part of Lessee is in default; and/or
(e) Pursue any other remedy now or hereafter available to Lessor under
applicable law Unpaid installments of rent and other unpaid monetary obligations
of Lessee under the terms hereof shall bear interest from the date due at the
Default Rate.
13.3 No Waiver. No reentry or taking possession of the Property by Lessor
shall be construed as an election on its part to terminate this Lease, the
acceptance of a surrender of the Property or release Lessee from any obligations
hereunder, unless a written notice of such intention be given to Lessee.
Notwithstanding any such reletting or reentry or taking possession, Lessor may
at any time thereafter elect to terminate this Lease for a previous default.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any of
the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Lessor hereunder or of any damages accruing to Lessor by reason
of the violation of any of the terms, provisions and covenants herein contained.
No waiver by Lessor of any violation or breach of any of the terms, provisions,
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other or subsequent violation or breach of any of the terms,
provisions, and covenants herein contained. Forbearance by Lessor to enforce one
or more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of any other or subsequent violation
or default. The loss or damage that Lessor may suffer by reason of termination
of this Lease or the deficiency from any reletting as provided for above shall
include the expense of repossession and any repairs which are the obligation of
Lessee under this Lease undertaken by Lessor following possession. Subject to
Section 13.2, in addition to any other remedy Lessor may have, Lessor may
recover from Lessee all damages Lessor may incur by reason of such default,
including the cost of recovering the Property and the loss of rent for the
remainder of the Lease term. Lessor's consent to or approval of any act shall
not be deemed to render unnecessary the obtaining of Lessor's consent to or
approval of any subsequent act by Lessee. The delivery of keys to any employee
or agent of Lessor shall not operate as a termination hereof or a surrender
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of the Property.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Property.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee, Lessee
shall pay to Lessor a late charge equal to three percent (3%) of such arrearage.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by Lessor shall in no event constitute a waiver
of Lessee's default with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder. The parties
agree that the payment of late charges and the payment of interest as provided
elsewhere herein are distinct and separate from one another in that the payment
of interest is to compensate Lessor for the use of Lessor's money by Lessee and
the payment of late charges is to compensate Lessor for administrative and other
expenses incurred by Lessor.
13.5 Interest on Past-Due Obligations. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at a
rate per annum equal to 18% (the "Default Rate") from the date due. Payment of
such interest shall not excuse or cure any default by Lessee under this lease,
provided, however, that interest shall not be payable on late charges incurred
by Lessee. Notwithstanding any other term or provision hereof, in no event shall
the total of all amounts paid hereunder by Lessee and deemed to be interest
exceed the amount permitted by applicable usury laws, and in the event of
payment by Lessee of interest in excess of such permitted amount, the excess
shall be applied towards damages incurred by Lessor, if any, or returned to
Lessee.
13.6 Impounds. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) installments of rent or other monetary
obligation which Lessee is late in paying, Lessee shall pay to Lessor, if Lessor
shall so request, in addition to any other payments required under this Lease,
monthly advance installments, payable at the same time as the rent is paid for
the month to which it applies, in amounts required as estimated by Lessor to
establish a fund for real property tax and insurance premiums on the Property
which are payable by Lessee under the terms hereof. Such fund shall be
established to insure payment when due, before delinquency, of any or all such
real property taxes and insurance premiums. If the amounts paid to Lessor by
Lessee under the provisions of this Section 13.6 are insufficient to discharge
the obligations of Lessee to pay such real property taxes and insurance premiums
as the same become due, Lessee shall pay to Lessor, upon Lessor's demand,
additional sums necessary to pay such obligations. All moneys paid to Lessor
under this Section 13.6 may be intermingled with other monies of Lessor and
shall not bear interest.
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13.7 Default by Lessor. Lessor shall not be in default unless (a)
Lessor breaches its obligations under Section 23 or (b) Lessor fails to perform
obligations required of Lessor within a reasonable time after written notice by
Lessee to Lessor and to the holder of any first mortgage or deed of trust
covering the Property whose name and address shall have theretofore been
furnished to Lessee in writing, specifying the obligation that Lessor has failed
to perform.
14. CONDEMNATION. If the Property or any portion thereof is taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (either of which is herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than twenty five percent
(25%) of the Property or such portion thereof as will make the Property unusable
for the purposes herein leased is taken by condemnation, Lessee may terminate
this Lease by notice to the Lessor, in writing, only within thirty (30) days
after Lessor shall have given Lessee written notice of such condemnation or
pending condemnation (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession), such termination to
take effect as of the date the condemning authority takes possession. If Lessee
does not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Property remaining,
except that the rent shall be reduced in the proportion that the area of the
Property taken bears to the total area of the Property, and Lessee shall have no
other rights or remedies as a result of such condemnation. Both Lessor and
Lessee shall have the right to claim and collect any award or settlement from
the condemnation proceedings for damages to their respective interest in the
Property, at their respective expense.
15. ESTOPPEL CERTIFICATE.
15.1 Certificate. Lessee shall at any time upon not less than ten (10)
business days' prior written notice from Lessor execute, acknowledge and deliver
to Lessor and/or any lender or purchaser designated by Lessor a statement in
writing (i) 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 applicable, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed;
provided, however, that if such statement from Lessee is not received within the
time period set forth above, Lessor shall provide a second written notice and
Lessee shall respond within five (5) business days. Any such statement may be
conclusively relied upon by any purchaser or encumbrancer of the Property.
15.2 Failure to Deliver Certificate. At Lessor's option, Lessee's
failure to deliver such statement within such time shall be a material breach by
Lessee under this Lease or shall be conclusive upon Lessee (i) that this Lease
is in full force and effect, without modification except as may be represented
by Lessor, (ii) that there are no uncured defaults in Lessor's performance, and
(iii) that no rent has been paid in advance.
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15.3 Financial Statements. If Lessor desires to finance, refinance, or
sell the Property, or any part thereof, Lessee hereby agrees to deliver to
Lessor and any lender or purchaser designated by Lessor the past three (3) years
financial statements of Lessee and any guarantor, in such detail as may be
reasonably required by such lender or purchaser. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and shall
be used only for the purposes of assessing the status of Lessee's tenancy and
the value of the Property.
16. SUBORDINATION.
Lessor agrees to utilize its reasonable best efforts to obtain a
subordination, non-disturbance and attornment agreement on terms reasonably
satisfactory to Lessee, with respect to all current and future mortgages
encumbering all or a portion of the Property.
17. NOTICES.
All notices, approvals, requests, consents and other communications
given pursuant to this Lease shall be in writing and shall be deemed to have
been duly given (i) when actually received by the addressee if hand delivered,
sent by facsimile transmission (provided that any notice so sent shall also be
mailed to the recipient), sent by private mail or courier service or sent by
United States regular mail; or (ii) two days after the date on which the same
was deposited in a regularly maintained receptacle for the deposit of United
States mail, if sent by registered or certified mail, postage and charges
prepaid, addressed as follows or at such other address as either party may
specify from time to time by notice to the other party:
TO LESSEE: Xxxx Xxxx Xxxxxx, Inc.
Attn: General Counsel
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
cc: Xxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
Suite 2800
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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TO LESSOR: Xxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
cc: Xxxxx X. X'Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
TO GUARANTOR: Sunbelt Automotive Group, Inc.
Attn: General Counsel
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
TO MORTGAGEE: First Union National Bank
Attn: Xxxxxx Xxx Dollar
0000 Xxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone:
Facsimile:
18. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification. Except as otherwise stated in this Lease, Lessee
hereby acknowledges that neither the Lessor nor any of its employees or agents
has made any oral or written warranties or representations to Lessee relative to
the condition or use by Lessee of said Property, and Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health Act,
the legal use and adaptability of the Property, and the compliance thereof with
all applicable laws and regulations in effect during the term hereof, except as
otherwise specifically stated in this Lease.
19. Attorney's Fees. If either party brings an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action
shall be entitled to recover reasonable attorney's and legal assistant's fees
and costs incurred in connection therewith, on appeal or otherwise, including
those incurred in arbitration (other than any C.P.I. arbitration proceeding
referenced in Section 4.4 above), mediation, administrative or bankruptcy
proceedings
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and in enforcing any right to indemnity herein.
20. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Lessor or Lessee (other than monetary payments, owed by
Lessee to Lessor), Lessor or Lessee, as applicable, shall not be liable or
responsible for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the control of Lessor or
Lessee, as applicable.
21. HOLDING OVER. If Lessee, with Lessor's consent, remains in
possession of the Property or any part thereof after the expiration of the term
hereof, such occupancy shall be a tenancy from month to month upon all the
provisions hereof pertaining to the obligations of Lessee, but all options and
rights of first refusal, if any, granted under the terms hereof shall be deemed
terminated and be of no further effect during said month to month tenancy. If
Lessee shall hold over without Lessor's express written consent, Lessee shall
become a Lessee at sufferance and rental shall be due at a rate equal to 150% of
the rent payable immediately prior to the expiration of the term. The foregoing
provisions shall not limit Lessor's rights hereunder or provided by law in the
event of Lessee's default.
22. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Property at reasonable times for the purpose of inspecting the same,
posting notices of non-responsibility, showing the same to prospective
purchasers, lenders, or Lessees, performing any obligation of Lessee hereunder
of which Lessee is in default, all without being deemed guilty of an eviction of
Lessee and without abatement of rent, Lessor hereby indemnifies and holds Lessee
harmless from all loss, claims, damage, liability and expenses (including,
without limitation, reasonable attorney's fees) incurred as a result of the
exercise by Lessor of its rights hereunder. No provision hereof shall be
construed as obligating Lessor to perform any repairs, alterations or to take
any action not otherwise expressly agreed to be performed or taken by Lessor.
Lessor may at any time place on or about the Property reasonable "For Sale"
signs and Lessor may at any time during the last ninety (90) days of the term
hereof place on or about the Property reasonable "For Lease" signs, all without
rebate of rent or liability to Lessee.
23. QUIET ENJOYMENT. Upon Lessee paying the rent for the Property and
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Property for the entire term hereof subject to all of the
provisions hereof.
24. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean
only the owner or owners at the time in question of the fee title of the
Property, and in the event of any transfer of such title or interest, Lessor
herein named (and in case of any subsequent transfers then the grantor) shall be
relieved from and after the date of such transfer of all liability as respects
Lessor's obligations thereafter to be performed, provided that any funds
previously delivered by Lessee to Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest,
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shall be delivered to the grantee. The obligations contained in this Lease to be
performed by Lessor shall, subject to transfer of funds as aforesaid, be binding
on Lessor's successors and assigns only during their respective periods of
ownership.
25. BINDING EFFECT; CHOICE OF LAW. This Lease shall bind the parties,
their personal representatives, successors and assigns. This Lease shall be
governed by the laws of the State of Georgia.
26. SEVERABILITY. The invalidity of any provision hereof under
applicable law shall in no way affect the validity of any other provision
hereof.
27. TIME OF ESSENCE. Time is of the essence hereof.
28. ADDITIONAL RENT; SURVIVAL. Any and all monetary obligations of
Lessee under the terms hereof shall be deemed to be rent, shall be secured by
any available lien for rent, and to the extent accrued shall survive expiration
or termination of the term hereof.
29. COVENANTS AND CONDITIONS. Each provision hereof performable by
Lessee shall be deemed both a covenant and a condition.
30. SECURITY MEASURES. Lessee hereby acknowledges that the rental
payable to Lessor hereunder does not include the cost of guard service or other
security measures, and that Lessor shall have no obligation whatsoever to
provide same. Lessee assumes all responsibility for the protection of Lessee,
its agents and invitees from acts of third parties.
31. AUTHORITY. If Lessee is a corporation, trust, or general or
limited partnership, each individual executing this lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity, and Lessee shall, within fifteen
(15) days after execution hereof, deliver to Lessor evidence of such authority
satisfactory to Lessor.
32. CONSTRUCTION. Any conflict between the printed provisions hereof
and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions. The terms "Lessor" and "Lessee" shall
include the plural and the singular and all grammar shall be deemed to conform
thereto. If more than one person executes this Lease, their obligations shall be
joint and several. The use of the words "include," "includes" and "including"
shall be without limitation to the items which may follow.
33. CAPTIONS. The parties mutually agree that the headings and
captions contained in this Lease are inserted for convenience or reference only,
and are not to be deemed part of or used in construing this Lease.
34. ARBITRATION. In the event of any dispute between the Lessor and
Lessee with
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respect to any issue specifically mentioned in this Lease as a matter to be
decided by arbitration, such dispute shall be determined by arbitration in
accordance with the laws of the State of Georgia dealing with arbitration, or in
the absence of such laws, the rules of the American Arbitration Association. The
decision resulting from the arbitration shall be binding, final and conclusive
on the parties, and a decision thereon may be entered by a court having
jurisdiction.
35.4 ENVIRONMENTAL COMPLIANCE.
(a) Lessee shall not use, generate, manufacture, produce, store, release,
discharge or dispose of, on, under or about the Property, or transport to or
from the Property, any Hazardous Substance (as defined below), except in
compliance with applicable Environmental Law, or allow any other person or
entity to do so. Lessee shall keep and maintain the Property in compliance with,
and shall not cause or permit the Property to be in violation of, any
Environmental Laws (as defined below). It being agreed that Lessee has no
obligations with respect to any pre-existing condition.
(b) Lessee shall give reasonably prompt notice to Lessor of (i) any
proceeding against or formal written inquiry to Lessee by any governmental
authority (including without limitation the Georgia Environmental Protection
Agency or Georgia Department of Health) with respect to the presence of any
Hazardous Substance on the Property or the migration thereof from or to other
property; and (ii) all claims received by Lessee that are made or threatened by
any third party against Lessee, Lessor or the Property relating to any loss or
injury resulting from any Hazardous Substance or Lessee's obtaining actual
knowledge of any occurrence or condition on any real property adjoining or in
the vicinity of the Property that may reasonably be expected to cause the
Property or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any Environmental Law or
any regulation adopted in accordance therewith.
(c) Lessee shall, indemnify and hold harmless Lessor, its directors,
officers, employees, agents, successors and assigns from and against any and all
loss, damage, cost, expense or liability (including attorneys' fees and costs)
arising out of or attributable to the use, generation, manufacture, production,
storage, release, threatened release, discharge, disposal, transport or presence
of a Hazardous Substance on, under, about, to or from the Property, including
without limitation the costs of any necessary repair, cleanup or detoxification
of the Property, in any way arising from the acts of Lessee.
(d) "Environmental Laws" shall mean any federal, state or local law,
statute, ordinance or regulation pertaining to the environmental conditions on,
under or about the Property, including without limitation the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended from
time to time ("CERCLA"), 42 U.S.C. Sections 9601 et seq., and the Resource
Conservation and Recovery Act of 1976, as amended from time to time ("HRCRA"),
42 U.S.C. Sections 901 et seq. The term "Hazardous Substance" shall include
without limitation: (i) those substances included within the definition of
"hazardous substances,"
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"hazardous materials," "toxic substances," or "solid waste" in CERCLA, RCRA, and
the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq., and
in the regulations promulgated pursuant to said laws; (ii) those substances
defined as "hazardous wastes" in any Georgia Statute and in the regulations
promulgated pursuant to any Georgia Statute; (iii) those substances listed in
the United States Department of Transportation Table (49 CFR 172.101 and
amendments thereto) or by the Environmental Protection Agency (or any successor
agency) as hazardous substances (40 CFR Part 302 and amendments thereto); (iv)
such other substances, materials and wastes which are or become regulated under
applicable local, state or federal law, or which are classified as hazardous or
toxic under federal, state or local laws or regulations; and (v) any material,
waste or substance which is (1) petroleum, (2) asbestos, (3) polychlorinated
biphenyls, (4) designated as a "hazardous substance" pursuant to Section 311 of
the Clean Water Act, 33 U.S.C. Sections 1251 et seq., or listed pursuant to
Section 307 of the Clean Water Act, (5) flammable explosive, or (6) radioactive
materials.
(e) Lessor shall have the right to inspect the Property and audit
Lessee's operations thereon to ascertain Lessee's compliance with the provisions
of this Lease at any reasonable time. Lessor shall have the right, but not the
obligation, to enter upon the Property and perform any obligation of Lessee
hereunder of which Lessee is in default, including without limitation any
remediation necessary due to environmental impact of Lessee's operations on the
Property, without waiving or reducing Lessee's liability for Lessee's default
hereunder.
(f) Lessor shall indemnify and hold harmless Lessee, its directors,
officers, employees, agents, successor and assigns from and against any and all
loss, damage, cost, expense or liability (including attorneys' fees and costs)
arising out of the use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal, transport or presence of a Hazardous
Substance on, under, about, to or from the Property, in any way arising from the
acts of Lessor, any predecessors-in-title of Lessor, any third party for which
Lessor is responsible, or otherwise arising before the date hereof.
(g) All of the terms and provisions of this Section 35 shall survive
expiration or termination of this Lease for any reason whatsoever.
36. GUARANTY OF LEASE.
Guarantor hereby guarantees all of the obligations and duties of Lessee
under this lease.
LESSOR, LESSEE, AND GUARANTOR HAVE CAREFULLY READ AND REVIEWED THIS
LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS
LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND
LESSEE WITH RESPECT TO THE PROPERTY.
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IN WITNESS WHEREOF, the Parties have caused this Lease Agreement to be
duly executed, effective as the date and year first above written.
LESSEE:
Signed, Sealed and Delivered in Xxxx Xxxx Xxxxxx, Inc.
the presence of:
/s/ K. XXXXX XXXXXX By: /s/ XXXX X. XXXXXX
---------------------------------- ------------------------------------
Unofficial Witness Name: XXXX X. XXXXXX
-------------------------------
Title: President
------------------------------
XXXXX X. X'XXXXXX
----------------------------------
Notary Public
My Commission Expires: 1/11/00
------------
LESSOR:
Signed, Sealed and Delivered in Xxxx Xxxx Xxxxxx, Inc.
the presence of:
/s/ K. XXXXX XXXXXX By: /s/ XXXX X. XXXXXX
---------------------------------- ------------------------------------
Unofficial Witness Xxxx X. Xxxxxx
XXXXX X. X'XXXXXX
----------------------------------
Notary Public
My Commission Expires: 1/11/00
------------
Signed, Sealed and Delivered in GUARANTOR:
the presence of:
/s/ X.X. XXXXXX By: /s/ X.X. XXXXXX
---------------------------------- ------------------------------------
Unofficial Witness Name: X.X. XXXXXX
-------------------------------
Title: COO
------------------------------
/s/
----------------------------------
Notary Public
My Commission Expires: 6/21/1999
------------
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