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EXHIBIT 10.10
TEN-YEAR NET
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made as of the 28 day of January, 1985 and
executed this 28 day of January 1985, by and between WINCO, LTD., a Georgia
limited partnership having Xxxxxx X. Xxxxxxxxxxx, Xx. and Xxx. Xxxxxxxx X.
Xxxxxxxxxxx as its only general partners (hereinafter called "Lessor"), and
XXXXXXXXXXX PONTIAC-GMC TRUCK, INC. d/b/a XXXXXXXXXXX NISSAN, a corporation
organized and existing under the laws of the State of Georgia (hereinafter
called "Lessee");
W I T N E S S E T H:
THAT for and in consideration of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto,
Lessor and Lessee covenant and agree and follows:
ARTICLE I
Premises
Section 1.1. Lessor hereby agrees to lease and does hereby lease and demise
unto Lessee the real property described in Exhibit "A" attached hereto and by
this reference made a part hereof, together with all improvements thereon, less
and except
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those items set forth on Exhibit "B" attached hereto and by this reference made
a part hereof, and together with all and singular the tenements, hereditaments,
appurtenances, and privileges thereunto belonging or in any way appertaining
thereto, the aforesaid real property and improvements being hereinafter called
the "Demised Premises";
TO HAVE AND TO HOLD, subject to the terms and conditions hereinafter set
forth, for the Demised Term (as hereinafter defined) unless sooner terminated as
provided herein.
Section 1.2. No easements are retained by Lessor, all of the right, title,
interest and attachments of the Lessor in and to the Demised Premises being
leased hereby by Lessee. No personal property is included in this Lease.
ARTICLE 2
Term
Section 2.1. The Demised Term of this Lease shall be a period of ten (10)
calendar years (hereinafter called "Demised Term"), and shall commence on
February 1, 1985, and terminate at midnight on January 31, 1995, unless sooner
terminated as herein provided. Lessee shall have an option at the end of the
tenth year to renew this Lease for an additional five (5) year period with rent
renegotiated at that time but in no event less than the rent payable for the
period February 1, 1993 through January 31, 1995. Lessee shall notify Lessor its
intent to exercise this option by giving Lessor written notice of the same no
later than sixty (60) days prior to the expiration of the Demised Term.
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Section 2.2. The Demised Term shall not be renewed or extended, by
operation of law or otherwise, without the prior written agreement of Lessor and
Lessee, subject to the option to renew set forth herein.
ARTICLE 3
Rent
Section 3.1. Lessee covenants and agrees to pay to Lessor during the
Demised Term the amounts indicated below for the designated portions of the
Demised Term as rent for the Demised Term which sums shall be due and payable in
the indicated monthly installments, each such installment to be due and payable
promptly in advance on the first day of each month commencing February 1, 1985
and continuing on the first day of each subsequent month throughout the
remainder of the Demised Term, except that Lessee shall pay Lessor the monthly
rental installments for February 1985 and January 1995 on or before the
execution hereof:
Portion of Demised Annual Monthly Rental
Term Rent Installment
------------------ ------ --------------
February 1, 1985 through $150,000.00 $12,500.00
January 31, 1986
February 1, 1986 through $162,000.00 $13,500.00
January 31, 1987
February 1, 1987 through $192,000.00 $16,000.00
January 31, 1993
February 1, 1993 through $210,000.00 $17,500.00
January 31, 1995
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Section 3.2. Lessee shall pay all rental and other sums payable by Lessee
to Lessor at the principal place of business of Lessor or at such other place as
Lessor shall request in writing delivered to Lessee. Rent for a partial month
during the Demised Term, if any, shall be prorated on a daily basis.
Section 3.3. In addition to all rent as herein provided, Lessee shall pay
on or before the dates the same shall become due and payable, and as additional
rent, all taxes, charges, costs and expenses, or substitutions in lieu thereof,
which Lessee assumes or agrees to pay under this Lease, together with all
interest and penalties that may accrue thereon, and all other damages, costs and
expenses, including attorneys' fees, which Lessor may suffer or incur by reason
of lessee's failure promptly to make agreed payments and any and all other sums
which may become due by reason of default of lessee or failure on Lessee's part
to comply with the agreements, terms, covenants and conditions of this Lease on
Lessee's part to be performed. In the event of nonpayment, Lessor shall have the
rights and remedies herein provided for in case of nonpayment of rent or a
breach of condition.
ARTICLE 4
Repairs and Maintenance by Lessee
Section 4.1. Lessee accepts the Demised Premises in the present condition
as suitable for all purposes of this Lease, and Lessee, at its sole cost, risk,
expense and liability, covenants
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and agrees to keep and maintain in good repair the Demised Premises and any
improvements now or hereafter located thereon, in present condition and in
compliance with all applicable governmental directions, codes, ordinances and
regulations. Lessee covenants and agrees to return the Demised Premises to
lessor at the termination of Demised Term in same condition as exists at the
commencement of Demised Term, reasonable wear and tear excepted, subject to the
provisions of Article 15 hereof. Lessor shall not be obligated to make any
repairs or replacements or maintain the Demised Premises or the improvements
thereon during the Demised Term.
ARTICLE 5
Changes and Alterations by Lessee
Section 5.1. Subject to Lessee's compliance with the Restrictive Covenants
referred to in Article 22, Lessee may, at any time, and from time to time,
effect any reasonable alterations, changes and modifications in or upon the
Demised Premises as Lessee may desire, including, without limitation, major
structural changes, the construction of additional buildings and expansion of
existing buildings or additional buildings, all at Lessee's sole cost, risk,
expense and liability. Lessor's approval shall not be required for any
alterations or changes made by Lessee, provided, however, in the event the
changes or alterations involve major structural changes or additional
structures, Lessee shall submit to Lessor, for approval in advance of the
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commencement of construction, copies of the architect's plans and
specifications. Lessor may disapprove such plan and specifications, but only if
the disapproval is based upon structural considerations which do not include
items such as value, cost, design, use or aesthetics; or upon substantial
reduction in the area available for vehicular parking on Demised Premises;
provided, however, in the event of any assignment or sublease in accordance with
Article 9 hereof, Lessor shall have the unrestricted right of approval for any
changes or alterations involving major structural changes or additional
structures, if any, proposed by an assignee or a sublessee. Failure of Lessor to
disapprove the plans and specifications within twenty (20) business days of
submission by Lessee to Lessor shall be deemed to constitute approval thereof.
Notice of disapproval thereof by Lessor shall be accompanied by a statement
specifying the basis for disapproval, and Lessee shall not be authorized to
commence construction until the plans and specifications are modified to the
reasonable satisfaction of Lessor. Notwithstanding anything to the contrary
herein, any approval required by Lessor with respect to this paragraph shall
also require the approval of Lessor's mortgagee.
ARTICLE 6
Removal of Trade Fixtures, Appliances
Other Equipment and Improvements
Section 6.1. All trade fixtures, inventory, appliances and other equipment
and personal property existing, placed or installed in or on Demised Premises
prior to or during the
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Demised Term by Lessee shall remain the property of Lessee, and may be removed
by Lessee at any time during the Demised Term, or within thirty (30) calendar
days subsequent to the expiration of Demised Term, as long as no Event of
Default has occurred and is continuing and as long as the trade fixtures,
inventory, appliances and other equipment and personal property can be removed
without substantially damaging the Demised Premises. All damage to the Demised
Premises caused by Lessee's removal of such property shall be repaired by the
Lessee at the Lessee's expense, and to the Lessor's reasonable satisfaction.
ARTICLE 7
Inspection of Demised Premises by Lessor
Section 7.1. Lessor or Lessor's representative shall have the right at all
reasonable times during the Demised Term, upon reasonable notice to Lessee, to
enter upon any part of the Demised Premises for the purpose of determining
whether the conditions and covenants contained in this Lease are being kept and
performed. The entry shall be conducted during reasonable business hours and
Lessor or Lessor's representative shall conduct the entry with Lessee or
Lessee's representative.
ARTICLE 8
Utilities
Section 8.1. Lessee shall pay costs of all utilities furnished to the
Demised Premises including, but not limited to water, gas and electricity,
during the Demised Term.
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ARTICLE 9
Assignment and Sublease by Lessee
Section 9.1 With the prior written consent of the Lessor, which
consent which consent shall not be unreasonably withheld if the Assignee appears
to Lessor to have the ability to make all payments due under this Lease and
otherwise to perform all of Lessee's obligations hereunder, and if all rental
payments and other obligations of the Lessee are current, the Lessee may sublet,
assign or encumber this Lease in whole or in part to any person or persons,
natural or corporate whomsoever. In such event, Lessee shall remain primarily
liable for the keeping and performance of all of its covenants hereunder
including, but not limited to, the prompt and due payment of rent and additional
rent. In the event of any assignment or sublease, Lessor agrees to deliver to
the assignee or sublessee a nondisturbance agreement acknowledging Lessee's
continuing primary liability and the assignee or sublessee's rights and agreeing
that this Lease shall remain in full force and effect as long as all of Lessee's
covenants and obligations hereunder are performed. In the event of any
assignment or sublease, Lessor, as to any changes and alterations permitted
under Article 5 and undertaken by any assignee or sublessee, shall have the
right to require the assignee or sublessee at its expense to obtain in favor of
Lessor payment and performance bonds in a form and an amount reasonably
satisfactory to lessor and issued by a surety company qualified
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to do business in Georgia and reasonably acceptable to Lessor. If Lessee
assigns this Lease, or sublets to another, the rents due under Article 3 for
the remainder of the Term shall be increased to the rate Lessor reasonably
determines to be the fair market rental for the Demised Premises and that rent
shall be stated in the Consent to Assignment. Lessee's right of assignment is
subject to obtaining the approval of Lessor's mortgagee.
ARTICLE 10
Default and Remedies
Section 10.1. The occurrence of any one or more of the following
events shall constitute an Event of Default:
(a) If Lessee deserts or abandons the Demised Premises and
such abandonment continues for a period of fifteen calendar (15) days; or
(b) If Lessee fails to make payment to Lessor of any monthly
rent, additional rent, or of any money advanced by Lessor and collectible as
additional rent, as and when the same becomes due and payable; or
(c) If Lessee fails to pay, bond or otherwise discharge any
tax, assessment, water rent, rate or charge, sewer rent or other governmental
imposition, or any other charge or lien against the Demised Premises which
Lessee is required to pay, at least ten (10) calendar days prior to the
expiration of any grace period allowed by law or by the governmental authority
imposing the same or ten (10) calendar days after judgment following contest by
Lessee as provided in Section 11.3; or
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(d) If Lessee defaults in complying with any other agreement,
term, covenant or condition of this Lease and such default in compliance
continues for a period of ten (10) calendar days after written notice by Lessor
specifying the claimed default and Lessee has not, in good faith, commenced,
within the ten day period, to remedy the default and diligently and
continuously proceeded therewith; or
(e) If Lessee files a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any present or future federal
bankruptcy act or under any similar federal or state law, or is adjudicated a
bankrupt or becomes insolvent or makes an assignment for the benefit of its
creditors or admits in writing its inability to pay its debts generally as they
become due; or
(f) If a petition or answer proposing the adjudication of
Lessee as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law is filed in any court and
such petition or answer is not discharged or denied within thirty (30) calendar
days after the filing thereof; or
(g) If a receiver, trustee, or liquidator of Lessee, of all
or substantially all of the assets of Lessee, or of Lessee's estate or interest
in the Demised Premises is appointed in any proceeding brought against Lessee
and is not
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discharged within thirty (30) calendar days after such appointment or, if at
any time prior to the discharge of this Lease, Lessee consents to or acquiesces
in such appointment; or
(h) If the estate or interest of Lessee in the Demised
Premises or a part thereof is levied upon or attached in any proceeding and
such process is not vacated or discharged or security therefor posted within
thirty (30) calendar days after written notice of such levy or attachment,
unless Lessee contests such levy or attachment in good faith and such contest
by Lessee operates to suspend the enforcement of such levy or attachment
against the estate or interest of Lessee in the Demised Premises.
Section 10.2 If an Event of Default occurs, Lessor may perform any
duty imposed on Lessee hereunder without notice for the account and at the
expense of Lessee. If Lessor incurs any expense, including reasonable attorneys'
fees, in instituting, prosecuting or defending any action or proceeding by
reason of any default by Lessee, Lessee shall reimburse Lessor the amount of
such expense. Should Lessee, pursuant to this Lease, become obligated to
reimburse or otherwise pay Lessor one or more sums of money in addition to the
rent and additional rent, the amount thereof shall be deemed additional rent
and may, at the option of the Lessor, be added to any subsequent installment of
rent due
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and payable, in which event Lessor shall have the same remedies for default
provided for non-payment of rent. The provisions of this Section 10.2 shall
survive the expiration of the Demised Term.
Section 10.3. Upon the occurrence of any events of default as set
forth in Article 10, Lessor may serve a written five (5) calendar day notice of
cancellation and termination of this Lease, and if upon the expiration of said
five (5) days such default has not been completely remedied, this Lease and the
Demised Term shall end and expire as fully and completely as if the date of
expiration of such five (5) day period were the day herein fixed for the end
and expiration of the Demised Term. The Lessee shall then quit and surrender
the Demised Premises to Lessor as soon as practicable and Lessor may enter into
or repossess the Demised Premises either by force, summary proceedings or
otherwise.
Section 10.4. If this Lease is terminated pursuant to Section 10.3
hereof, all of the right, title and estate and interest of the Lessee in and to
the Demised Premises, any improvements thereon made by Lessee, and in and to
all rents, issues and profits thereof, whether then accrued or to accrue, and
in and to all insurance policies, shall automatically pass to, vest in and
belong to the Lessor, without further action on the part of either party and
without cost or charge to Lessor, free of any claim thereto by Lessee.
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Section 10.5. No receipt of money by Lessor form Lessee after the
termination hereof shall reinstate, continue or extend the term, or affect any
notice theretofore given by Lessor, or operate as a waiver of the right of
Lessor to enforce the payment of any rent and additional rent then due or
thereafter falling due, or operate as a waiver of the right of Lessor to
recover possession of the Premises by proper suit, action, proceeding
or other remedy. After the service of notice of termination by Lessor as herein
provided and the expiration of the time therein specified, or after a final
order or judgment for possession of the Demised Premises, Lessor may demand,
receive and collect any money due, or thereafter falling due, without in any
manner affecting such notice, suit, action, proceeding, order or judgment, and
any and all such money so collected shall be deemed to be payment on account of
the use and occupation of the Demised Premises or, at the election of Lessor,
on account of Lessee's liability hereunder.
Section 10.6. In case of any termination, re-entry or dispossession by
summary proceedings or otherwise, the annual rent and additional rent and all
other charges required to be paid by Lessee hereunder shall thereupon become
due and payable up to the time of such termination, re-entry or dispossession,
and Lessee shall also pay to Lessor all expenses, brokerage commissions and all
other costs reasonably paid or incurred by Lessor for restoring the Demised
Premises to good order and condition.
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Section 10.7. If this Lease is terminated, Lessor may relet the
Demised Premises, in whole or in part, for a term or terms which, at Lessor's
option may be the remainder of the then current therm of this Lease, or for any
longer or shorter period. Unless the statue or rule of law which governs the
proceeding in which damages are to be proved limits the amount of damages
capable of being so proved and allowed, in which case Lessor shall be entitled
to an amount equal to the maximum allowed by any such statue or rule of law,
Lessor shall be entitled to recover of and from Lessee, all damages, payable in
monthly installments, in advance on the first day of each calendar month
following such termination or re-entry, and continuing until the date originally
fixed herein for the expiration of the ten current term of this Lease, in an
amount equal to the excess, if any, of the sum of the aggregate expenses paid
by Lessor during the month immediately preceding such calendar month for all
such items as, by the terms of this Lease, are required to be paid by Lessee,
plus an amount equal to the amount of the installment of annual rent which
would have been payable by Lessee hereunder in respect of such calendar month,
had this Lease and the Demised Term not been so terminated, or had Lessor not
so re-entered, over the rents, if any, collected by or accruing to Lessor in
respect of such calendar month pursuant to either such reletting, or form any
existing subleases, and any suit or action brought to collect damages for any
calendar month shall not prejudice in any
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way the rights of Lessor to collect damages for any subsequent month by a
similar proceeding. Lessor, at its option, may make such alterations and
repairs in the Demised Premises as in its reasonable judgment Lessor considers
necessary, and the making of such alterations and repairs shall not operate or
be construed to release Lessee from liability hereunder, provided Lessor shall
not charge Lessee for the expense of any such alterations or repairs not
otherwise required of Lessee hereunder. In no event shall Lessee be entitled to
receive any excess of such annual rents collected from reletting over the sums
payable by Lessee to Lessor hereunder. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Lessor from time to
time at its election, and nothing herein contained shall be deemed to require
Lessor to postpone suit until the date when the term of this Lease would have
expired if it had not been terminated under the provisions of this Lease, or any
provision of law, or had Lessor not re-entered into or upon the Demised
Premises.
Section 10.8. The rights and remedies given to Lessor in this Lease
are distinct, separate and cumulative and no one of them whether or not
exercised by Lessor, shall be deemed to be in exclusion of any of the other
herein or by law or in equity provided.
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ARTICLE 11
Taxes and Other Charges
Section 11.1. Lessee shall, without notice or demand, as additional
rent, pay and discharge, on or before the last day on which the same may be paid
without penalty, all taxes, assessments, assessments levied by reason of
restrictive covenants affecting the Demised Premises, rates and charges,
sanitary assessments, and other governmental impositions and charges of every
kind and nature whatsoever, extraordinary as well as ordinary, and each and
every installment thereof together with all interest and penalties thereon,
which shall or may during the Demised Term be levied, assessed or imposed on or
become a lien upon or become due or payable out of or for or by any reason of
the use or occupancy of the Demised Premises of any part thereof, the Lessee's
or the Lessor's interest in the Demised Premises and the improvements located
thereon, or any buildings, appurtenances, or equipment now or hereafter erected
or placed thereon or therein or any part thereof, or the sidewalks or streets in
front of or adjoining the Demised Premises. All taxes levied, assessed or
imposed in lieu of or in addition to the foregoing shall be paid by Lessee
together with all interest and penalties thereon, under or by virtue of all
present or future laws, ordinances, requirements, orders, directions, rules or
regulations of the federal, state, county and city or local governments of all
other governmental authorities whatsoever. Lessee shall pay
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all taxes and assessments which shall prior to or during the Demised Term or
any renewal term be levied, assessed or imposed on or become a lien upon the
personal property of Lessee located upon the Demised Premises. Lessee shall be
deemed to have complied with the covenants of this Section 11.1 if payment of
such rents, taxes, assessments, rates and charges, sanitary assessments, and
other governmental impositions and charges, shall have been made prior to ten
(10) days before the expiration of any grace period allowed by law or by the
governmental authority imposing the same during which payment is permitted
without penalty or interest, and either before the same shall become a lien
upon the Demised Premises or shall become delinquent. Lessee shall within
fifteen (15) business days after receipt of written request therefor by Lessor
produce and deliver to Lessor reasonably satisfactory evidence of such payment.
Section 11.2 All such rents, taxes, rates and charges, sanitary
assessments, and other governmental impositions and charges and the current
installments of any assessment which has been converted into periodic
installments under the provisions of Section 11.1 (except the taxes and
assessments levied on the personal property of Lessee) which become due and are
payable in the calendar year in which the Demised Term expires,shall be
apportioned pro-rata between Lessor and Lessee in accordance with the respective
portions of such period during which the Demised Term shall be in effect.
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Section 11.3. Lessee shall have the right to contest or review by
legal proceedings, or in such other manner as it may deem suitable (which, if
instituted, Lessee shall conduct promptly at its own expense, and free of any
expense to Lessor, and, if necessary, in the name of Lessor), any tax,
assessment, rate or charge, sanitary assessment, or other governmental
imposition or charge aforementioned, and for such purpose may pay any such item
under protest. Lessor shall have the right to monitor any such contest or
review by legal proceedings, and, for such purpose, Lessee agrees promptly to
furnish Lessor with copies of all correspondence, notices, pleadings and other
writings in connection therewith.
Section 11.4. Lessee shall not be required to pay, discharge or remove
any tax, assessment, tax lien or other imposition or charge upon or against the
Demised Premises, or any part thereof, or the improvements at any time situated
thereon, as long as the Lessee shall in good faith contest the amount or the
validity thereof by appropriate legal proceedings which shall operate to prevent
the collection of the tax, assessment, tax lien, forfeiture or imposition so
contested, or the sale of that pending any such legal proceedings Lessor shall
not have the right to pay, remove or discharge the tax assessment, tax lien,
forfeiture, or imposition thereby contested.
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Section 11.5. Nothing herein contained shall be construed to require
Lessee to pay any inheritance, estate, succession, transfer, gift, franchise,
income, profit or excess profit, capital stock, capital levy, corporate or
unincorporated business tax or other similar tax, that is or may be imposed upon
Lessor, its successors or assigns, or upon the rent payable by Lessee.
ARTICLE 12
Insurance
Section 12.1. Lessee, throughout the Demised Term, at its own cost and
expense, and as additional rent, shall, through an insurance company or
insurance companies qualified to transact business and authorized to write
insurance on the risks in the State of Georgia:
(a) Keep the improvements on the Demised Premises insured (in an
amount representing at all times the full insurable value of the improvements,
but in no event shall the amount of insurance at any time be lesser of $500,000
or the fair market value of the improvements existing from time to time) in the
name of Lessor and in the name or names of any and all of Lessor's mortgagees
against loss or damage by fire with extended coverage; and
(b) Keep in force a comprehensive general liability insurance policy,
such liability policy to be in the amount of not less than $1,000,000.00 with
respect to injury or death of
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any one person, $3,000,000.00 with respect to any one accident and $500,000.00
with respect to damage of property.
Section 12.2. All insurance provided by Lessee as required by this
Article 12 shall be carried in favor of Lessor, permitted mortgagees and Lessee
as their respective interests may appear. All policies shall provide that loss
payable thereunder shall be payable to Lessor and Lessee as their respective
interests may appear.
Section 12.3. Lessee agrees to deliver to Lessor on date of
commencement of Demised Term true and exact copies of the policies or
certificates of insurance required hereunder to be in the name of Lessor and
certificates of other policies required hereunder. At least twenty (20)
business days prior to the expiration of each such policy, Lessee shall deliver
to Lessor evidence that the policy has been renewed or replaced, and as soon as
practicable thereafter, the new original policy or certificate for renewal or
replacement insurance.
Section 12.4. Lessee shall not violate or knowingly permit to be
violated any of the conditions or provisions of any such policy.
Section 12.5. Lessee and Lessor shall cooperate in connection with
the collection of any insurance monies that my be due in the event of loss, and
Lessee and Lessor shall execute and deliver such proofs of loss and other
instruments which may be required for the purpose of obtaining the recovery of
any such
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insurance monies. Lessee shall pay all fees and expenses reasonably incurred
in the collection and recovery of any such insurance monies.
Section 12.6. Each such policy (including renewal insurance) or
certificates therefor issued by the insurer shall contain an agreement by the
insurer that such policy shall not be cancelled without at least thirty
calendar (30) days prior written notice to Lessor, and in no event shall such
policies be cancelled by Lessee without Lessor's prior written consent;
provided, however, that nothing herein contained shall prevent Lessee from
changing insurance carriers.
Section 12.7. Any insurance provided for in this Article 12 may be
effected by policy or policies of blanket insurance; provided, however, that
the amount of the total insurance allocated to the Demised Premises shall be
such as to furnish in protection the equivalent of separate policies in the
amounts herein required, and provided further that in all other respects, any
such policy or policies shall comply with the other provisions of this Lease.
In any such case it shall not be necessary to deliver the original of any such
blanket policy to Lessor, but Lessor shall be furnished with a certificate or
duplicate of such policy acceptable to Lessor, certified by the applicable
insurance company.
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ARTICLE 13
Lessor Not Liable for Injury or Damage
Section 13.1. During the entire Demised Term hereof Lessee shall be
deemed to be in exclusive control and possession of the Demised Premises and
those items set forth in Exhibit "B" attached hereto, and Lessor shall in no
event whatsoever be liable for any injury or damage to any property or to any
person happening on or about the Demised Premises, nor in connection with those
items set forth in Exhibit "B" attached hereto, nor for any injury or damage to
the Demised Premises for those items set forth on Exhibit "B" attached hereto,
nor to any property of Lessee, or of any other person except for injury or
damage caused by the negligence of Lessor or by Lessor's breach of this Lease.
The provisions hereof in Article 7 permitting Lessor to enter and inspect the
Demised Premises are made solely for the purpose of enabling Lessor to become
informed as to whether or not Lessee is complying with the agreements, terms,
covenants and conditions hereof.
Section 13.2. Lessor shall not be liable for any injury or damage to
any person or property in or about the Demised Premises, whether belonging to
Lessee or any other person, caused by any fire, breakage, leakage, defect
(latent or otherwise) or bad condition in any part or portion of the Demised
Premises, or from water, rain or snow that may leak into, issue or flow from
any part of the Demised Premises from the drains, pipes, or
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plumbing work of the same, or from any place or quarter, unless such breakage,
leakage, defect or bad condition, injury or damage, may be caused by or result
from the negligence of Lessor or from a breach of this Lease by Lessor.
Section 13.3. In addition to any other indemnities to Lessor
specifically provided for in this Lease, Lessee shall protect, defend, indemnify
and save harmless Lessor against and from any and all claims by or on behalf of
any person arising from the operation, conduct or management of, or from any
work or thing whatsoever done in or on the Demised Premises and will further
protect, defend, indemnify and save Lessor harmless against and form any and all
claims arising during the Demised Term from any breach or default on the part of
Lessee in the performance of any covenant or agreement on the part of the Lessee
to be performed, pursuant to the terms of this Lease, and from and against all
costs, expenses and liabilities, including attorneys fees, incurred in or about
or in defending any such claim or action or proceedings brought thereon; and in
case any action or proceeding may be brought against Lessor by reason of any
such claims, Lessee upon notice from Lessor shall resist or defend such action
or proceeding by and through counsel reasonably satisfactory to Lessor. To the
extent that insurance procured by Lessee in accordance with the provisions of
this Lease shall protect, indemnify and save harmless Lessor, the provisions of
this Section 13.3 shall impose no additional obligation upon Lessee.
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ARTICLE 14
Mortgages
Section 14.1. Lessee may, without the requirement of any notice to or
approval by Lessor encumber the leasehold created hereby by mortgage; provided
that no leasehold mortgaging by Lessee shall affect the primary liability of
Lessee for the keeping and performance of all of its covenants hereunder
including, but not limited to, the prompt and due payment of rent and additional
rent; and provided further that any such mortgage will be subordinate to and
subject to any mortgage or deed to secure debt placed upon the Demised Premises
by Lessor.
Section 14.2. Notwithstanding anything herein to the contrary, Lessee
is hereby required to obtain the consent of any Lender holding as security
underlying fee simple interest in the Demised Premises prior to an encumbrance
of Lessee's leasehold rights created hereby, and Lessee's rights hereunder shall
be subject to the rights of such mortgagee.
Section 14.3. Lessor shall not be obligated to subordinate to, or
join in, or otherwise encumber or affect its underlying fee simple interest in
Demised Premises, with respect to any mortgage or mortgages placed by Lessee on
the leasehold created hereby.
ARTICLE 15
Destruction or Damage
Section 15.1. If during the Demised Term, a portion of or all of the
Demised Premises or improvements thereon shall be
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destroyed or damaged by fire or by any other cause of whatsoever nature, Lessee
shall restore, rebuild or repair the items destroyed.
Section 15.2. Lessee covenants and agrees to effect the necessary
repair, rebuilding or restoration promptly within a reasonable time, all items
or improvements affected to be of no less similar size and value, and of no
less similar design and quality or workmanship as existed immediately prior to
the destruction or damage.
Section 15.3. [Omitted intentionally]
Section 15.4. Lessee agrees to apply any insurance proceeds received
by Lessee by reason of insurance carried pursuant to Article 12 for the purpose
of restoration, rebuilding or repair required by this Article 15. In the event
of restoration, rebuilding or repair by Lessee pursuant to this Article 15,
Lessor agrees that any insurance proceeds received by Lessor by reason of
insurance carried pursuant to Article 12 shall be held in escrow with a third
party agreeable to Lessor and Lessee for the benefit of Lessee to be applied
toward the restoration, rebuilding or repair. If the restoration, rebuilding or
repair work require more that one month to complete, the escrow agent shall pay
to Lessee, upon request of Lessee, no less than once per month, a portion of
the insurance monies in an amount equal to the costs incurred by Lessee during
the previous month, such costs to be certified by Lessee's architect. The
entire balance of the insurance monies so held shall be paid to Lessor at the
time of completion of the work.
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Section 15.5. [Omitted intentionally]
Section 15.6. During such time or times that Demised Premises are
rendered totally unusable by Lessee as a site for an automobile dealership
(including, without limitation, an automobile showroom and a servicing
department) as determined in accordance with the normal standards of the
operation of such a business, by reason of such damage or destruction, the rent
provided in Article 3 shall xxxxx until the same have been rendered so usable by
Lessee.
Section 15.7. Lessee's obligations to repair, rebuild or restore, and
Lessor's obligation to make insurance proceeds available therefor, under the
provisions of this Article 15, are expressly made subject to the agreement by
Lessor's mortgagee to make all applicable insurance proceeds available for the
repair, rebuilding or restoration work. If Lessor's mortgagee fails to make all
applicable insurance proceeds so available, then Lessee, at Lessee's option, may
declare this Lease terminated and of no further force and effect. Under
absolutely no circumstances shall Lessee be required hereunder, without Lessee's
consent, to effect any repair, rebuilding or restoration work absent the
application of all available insurance proceeds to the work without restriction
or interference by Lessor or Lessor's mortgagee. Lessor and Lessee acknowledge
insurance proceeds shall first be paid to Lessor's mortgagee and be disbursed in
accordance with the terms of the Security Deed securing the Demised Premises or
in such other manner as approved by Lessor's mortgagee.
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ARTICLE 16
Eminent Domain
Section 16.1. If the Demised Premises are taken by or pursuant to any
governmental authority or through the exercise of the right of eminent domain,
Lessor and Lessee shall join and cooperate in resisting such proceeding if such
resistance is feasible and desirable to Lessor and Lessee, and if it is not,
shall join and cooperate in prosecuting their respective claims for damages
incurred from the successful exercise of such right or proceeding. Lessee
reserves unto itself all damages awarded which are based upon its leasehold
interest and ownership of trade fixtures, signs, inventory, equipment, and
interruption of business. Lessor reserves unto itself all damages awarded which
are based upon its underlying fee simple title in the Demised Premises and
Lessor's interest in this Lease. If under applicable law a single condemnation
award is made for the taking of the Demised Premises, the award shall belong to
the Lessor except that Lessee shall receive from the award the total of (1) a
sum attributable to Lessee's improvements or alterations made to Demised
Premises by Lessee in accordance with this Lease, which Demised Premises
pursuant to this Lease but elects not to remove; (2) a sum attributable to any
excess of the market value of Demised Premises (exclusive of Lessee's
improvements or alterations for which Lessee is compensated under this section)
for the
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remainder of the Demised Term, over the present value on date of taking of the
monthly rent payable under Section 3.1 for the remainder of the Demised Term;
and (3) a sum attributable to that portion of the award constituting severance
damages for the restoration of Demised Premises.
Section 16.2. If the whole of the Demised Premises shall be taken or
condemned by any competent authority for any public use or purpose, or so much
thereof so that Lessee is prevented from using the Demised Premises as set forth
in Section 15.6, during the Demised Term, and the Demised Premises cannot be
restored so as to be used as set forth in Section 15.6, all obligations of the
Lessee under this Lease shall cease upon the date of the taking and any unearned
rent paid by Lessee shall be refunded by Lessor to Lessee.
Section 16.3. If a portion of the Demised Premises shall be taken or
condemned by any competent authority for any public use or purpose during the
Demised Term which taking or condemnation shall not interfere with Lessee's use
of the Demised Premises as set forth in Section 15.6, then, in such event, the
rent provided in Article 3 shall not xxxxx.
Section 16.4. Lessor and Lessee agree to apply all condemnation proceeds
first to Lessor's mortgagee, second to restoring the existing Improvements on
the Demised Premises to make the Premises usable as set forth in Section 15.6
[with the proceeds deposited as provided in Section 15.4], and third as provided
in Section 16.1.
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ARTICLE 17
Lessee's Certificate
Section 17.1. Lessee shall, without charge, at any time and from time to
time, within fifteen (15) calendar days after request by Lessor, deliver a
written instrument to Lessor or any other person, firm or corporation specified
by Lessor duly executed and acknowledged, certifying:
(a) that this Lease is unmodified and in full force and effect, or if there
has been any modification, that the same is in full force and effect and stating
any such modification;
(b) whether the Lessor or the Lessee is in default under the Lease, and if
so, specifying the nature of the default;
(c) whether there are then existing any setoffs or defenses against the
enforcement of any of the agreements, terms, covenants or conditions of the this
Lease and any modifications thereof upon the part of Lessee to be performed or
complied with, and, if so, specifying the same; and
(d) the dates to which the rent, additional rent and other charges
hereunder have been paid.
Such certificate shall, and Lessee so acknowledges, be deemed to remain current
(but not more than 30 days after its date) and unchanged unless the party to
which it is addressed receives telephonic or telegraphic notice to the contrary
at a telephone number or address specified to Lessee by the party to which the
certificate is addressed.
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ARTICLE 18
Lessor's Certificates
Section 18.1. Lessor shall, without charge, at any time and from time
to time, within fifteen (15) calendar days after request by Lessee, delivery a
written instrument to Lessee or any other person, firm or corporation specified
by Lessee, duly executed and acknowledged, certifying whether Lessee has or has
not, as the case may be, faithfully and fully made all payments then and
theretofore due to Lessor and whether Lessor knows or does not know, as the
case may be, of any default by Lessee in the performance by Lessee of all
agreements, terms, covenants and conditions on Lessee's part to be performed,
and if Lessor does know of any default, specifying the same, and further
certifying whether Lessor has made any assignment of Lessor's interest in this
Lease. Such certificate shall, and Lessor so acknowledges, be deemed to remain
current (but not more than 30 days after its date) and unchanged unless the
party to which it is addressed receives telephonic or telegraphic notice to the
contrary at a telephone number or address specified to Lessor by the party to
which the certificate is addressed.
ARTICLE 19
No Waiver
Section 19.1. The failure of Lessor or Lessee to insist upon strict
performance of any of the agreements, terms, covenants and conditions hereof
shall not be deemed a waiver of any
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rights or remedies that said party may have against the other and shall not be
deemed a waiver of any subsequent breach or default if any of such agreements,
terms, covenants and conditions. A receipt by Lessor of rent or any other
payment or the acceptance by Lessor of performance by Lessee with knowledge of
the breach of a term, covenant, condition, provision, or agreement of this
Lease shall not be deemed a waiver of such breach. No waiver by either Lessor
or Lessee of a term, covenant, condition, provision, or agreement under this
Lease shall be deemed to have been made unless expressed in writing and signed
by the waiving party.
ARTICLE 20
Notices
Section 20.1. Whenever it is provided herein that notice, demand, request
or other communication shall or may be given to, or served upon, either of the
parties by the other, and whenever either of the parties shall desire to give
or serve upon the other any notice, demand, request or other communication with
respect hereto or the Demised Premises, each such notice, demand, request or
other communication shall be in writing and, any law or statute to the contrary
and notwithstanding, shall not be effective for any purpose unless the same
shall be given or served as follows:
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(a) If given or served by Lessor, by personal delivery or by mailing
the same in the United States Postal System to Lessee by registered or certified
mail, return receipt requested, postage prepaid, addressed to Lessee, at 0000
Xxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, or at such other address or addressess as
Lessee may from time to time designate by like notice given to Lessor;
(b) If given or served by Lessee, by personal delivery or by mailing
the same in the United States Postal System to Lessor by registered or certified
mail, return receipt requested, postage prepaid, addressed at 0000 Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxx 00000, or at such other address or addresses as Lessor
may from time to time desigate by like notice given to Lessee.
Every notice, demand, request or other communication hereunder shall
be deemed to have been given or served four (4) calendar days subsequent to the
day the same shall have been deposited in the United States Postal System as
aforesaid, or upon the day of receipt of the same by addressee, whichever shall
be the earlier.
ARTICLE 21
End of Term
Section 21.1. Except as herein otherwise provided, Lessee shall on
the last day of the Demised Term, or upon the sooner termination of the Demised
Term, peaceably and quietly surrender and deliver up to Lessor the Demised
Premises, together
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with such improvements as may then be on the Demised premises, the improvements
to be clean and otherwise in the same condition as exists at the commencement
of Demised Term or as exists upon the date of completion of construction
thereof, as applicable (except for replacement of destruction or damage, then
from time of completion of replacement pursuant to Article 15) except only for
reasonable wear and tear. Nothing in this Article, however, shall prohibit
Lessee from exercising the right or obligation of removal of the items provided
for in Article 6 hereof. Lessee covenants and agrees to repair any damage
occasioned by Lessee's removal of items pursuant to this Lease.
Section 21.2. Upon such termination all rent under this Lease, all
taxes, tax deposits, water rents, rates and charges, sewer rents and other
governmental impositions and charges, premiums of all insurance policies then in
force and any other items payable as additional rent under this Lease shall be
apportioned as of such termination.
ARTICLE 22
Quiet Enjoyment; Additional Rights of Lessee
Section 22.1. If and so long as Lessee shall pay the rent and
additional rent reserved by this Lease and shall perform and observe all of
the agreements, terms, covenants and conditions of this Lease on the part of
the Lessee to be performed and observed hereunder, Lessee shall peaceable and
quietly have, hold and enjoy the Demised Premises for the term hereby granted
as against Lessor and persons claiming by, through or under the Lessor.
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Section 22.2. Lessor represents that it is the owner of the
underlying fee simple title to the Demised Premises; that it has the right to
enter into this Lease; and that title to the Demised Premises is free and clear
of all liens and encumbrances except for those matters set forth in Exhibits
"C" and "D" attached hereto and by this reference made a part hereof.
Section 22.3. Lessee expressly assumes and agrees to perform all of
the duties imposed on the Grantee under the restrictive covenants placed on the
Demised Premised by Xxxxxxxxx Green, Inc. In the event Lessee wishes to take
exception to the restrictive covenants or wishes to ask for a waiver of any
matter set forth in the restrictive covenants, Lessee must first obtain the
written approval of Lessor which shall not be unreasonably withheld. All costs
including reasonable attorney fees shall be borne by Lessee.
ARTICLE 23
Net, Net, Net Lease
Section 23.1. This Lease Agreement shall be deemed and construed to
be a "net, net, net lease" and, except as otherwise expressly provided, Lessor
shall receive all rent and additional rent and all other payments hereunder to
be made by Lessee free from any charges, assessments, impositions, expenses or
deductions of any and every kind or nature, all of which Lessee hereby assumes
and shall pay.
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ARTICLE 24
Entire Agreement
Section 24.1. This writing contains the entire agreement between the
parties with regard to the subject matter hereof. No promise, representation
or warranty has been made not set forth herein.
ARTICLE 25
Successors and Assigns
Section 25.1. The agreements, terms, covenants and conditions herein
shall bind and inure to the benefit of Lessor and Lessee and their respective
successor, sublessees and assigns, except as otherwise provided herein.
ARTICLE 26
Use of Demised Premises
Section 26.1. Lessee shall not make or suffer any illegal or offensive
use of the Demised Premises or any part thereof and shall not cause or maintain,
or suffer to be caused or maintained, any nuisance in, at, or on the Demised
Premises or any part thereof. The Lessee will obey and, at its own expense,
comply with all lawful requirements, rules, regulations, codes, directives, and
ordinances of all legally constituted authorities existing at any time during
the continuance of this Lease and in any way affecting the demised premises,
the use and operation of the Demised Premises, or demolition, excavation, or
construction being done on the Demised premises. Lessee shall also, at its sole
cost and expense, procure or cause to be procured any and
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all permits, licenses or other authorizations required for the lawful and
proper use, occupation, and management of the Demised Premises.
ARTICLE 27
Recording of Lease
Section 27.1. Lessor and Lessee agree to execute, upon the request of either
party, with the requisite formalities under Georgia law for the purpose of
recording in the appropriate public records of Gwinnett County, Georgia, this
Lease or a Short Form Lease for the purpose of giving notice of the existence
of this Lease and the rights of the parties hereto. The party requesting such
recordation shall bear all costs in connection therewith.
ARTICLE 28
Miscellaneous
Section 28.1. Lessor and Lessee acknowledge and agree that no realtor, broker
or agent of any kind is a party to this Lease for any purpose including fee or
commission rights as to any rent or additional rent to be paid hereunder.
Lessor and Lessee each covenant and agree to indemnify and hold harmless the
other party hereto from the payment of all commissions, claims and related
expenses in connection with any realtor, broker or agent engaged by the
indemnifying party, or through which indemnifying party any such claim may be
made or asserted, in connection with the negotiating and procuring of this
Lease.
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Section 28.2. No relationship as creditor and debtor between the parties
is created or intended to be created by this Lease, the relationship between
Lessor and Lessee to be solely that of lessor and lessee. No security
agreements or financing statements under the Uniform Commercial Code or similar
statute naming Lessee as a debtor or otherwise implying that a debtor-creditor
relationship exists between Lessee and Lessor is authorized hereby or permitted
hereunder, it being understood, however, that the parties do not intend the
foregoing to prevent Lessor or Lessee from granting security interests in their
respective interests in the Demised Premises to third parties.
Section 28.3. If this Lease is modified at the request of and for the
benefit of Lessee, all costs, expenses and charges incident to such
modification, including without limitation reasonable counsel fees incurred by
Lessor with respect thereto, shall be paid by Lessee. If this Lease is modified
at the request of and for the benefit of Lessor, all costs, expenses and charges
incident to such modification, including without limitation reasonable counsel
fees incurred by Lessee with respect thereto, shall be paid by Lessor.
Section 28.4. The specified remedies to which Lessor may resort under the
terms of this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which Lessor may be lawfully entitled in
case of any
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breach or threatened breach by Lessee of any of the terms and provisions of this
Lease. In addition to the other remedies to which Lessor may be entitled,
Lessor shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the terms, covenants, conditions, provisions or
agreements of this Lease.
Section 28.5. This Lease can not be changed, modified, or discharged
orally but only in writing signed by the party against whom enforcement of the
change, modification or discharge is sought.
Section 28.6. Time is of the essence of this Lease.
Section 28.7. The captions and headings throughout this Lease are for
convenience and reference only, and the words contained therein shall in no way
be held or deemed to define, limit, describe, explain, modify, amplify, or add
to the interpretation, construction or meaning of any provision of or the scope
or intent of this Lease.
Section 28.8. This Lease is made in, intended to be performed and shall be
enforced and construed under the laws of the State of Georgia.
ARTICLE 29
Severability Provision
Section 29.1. Should any term, condition or provision hereof be deemed or
declared invalid or unenforceable by reason
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of any law or decision or governmental regulation of any kind or nature
whatsoever, by court decree or otherwise, such invalidity or unenforceability
shall not affect or impair the validity and enforceability shall not affect or
impair the validity and enforceability of the remaining terms, conditions and
provisions hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand and
affixed their seals this 28 day of January, 1995.
LESSOR:
WINCO LTD., a Georgia limited
partnership
/s/ Xxxxxx X. Xxxxxxxxxxx, Xx. (SEAL)
As to Lessor, signed, ------------------------------
sealed and delivered XXXXXX X. XXXXXXXXXXX, XX.
in the presence of:
/s/ Xxxxxxxx X. Xxxxxxxxxxx (SEAL)
------------------------ ----------------------------
Unofficial Witness XXX. XXXXXXXX X. XXXXXXXXXXX
/s/ Being the only general partners
------------------------ of Winco Ltd.
Notary Public
LESSEE:
XXXXXXXXXXX PONTIAC-GMC TRUCK,
INC., a Georgia corporation
As to Lessee, signed
sealed, and delivered
in the presence of: By: /s/
----------------------------
------------------------ Title:
Unofficial Witness -------------------
Attest:
------------------------
------------------------ Title:
Notary Public -------------------
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CERTIFICATE AND AGREEMENT
The undersigned hereby certify unto The Citizens and Southern National Bank
that attached hereto as Exhibit "A" is a true and exact copy of the original
Ten-Year Net Lease Agreement executed by and between Winco Ltd. and
Xxxxxxxxxxx Pontiac-GMC Truck d/b/a Xxxxxxxxxxx Nissan, dated as of January
28, 1995 (herein called "Lease") which Lease has not been amended or modified
and is in full force and effect.
Xxxxxxxxxxx Pontiac-GMC Truck as lessee under the Lease hereby agrees to
attorn to The Citizens and Southern National Bank or its successors or assigns
under the terms of the Lease in the event of a foreclosure.
The undersigned hereby acknowledge that The Citizens and Southern National
Bank shall rely upon this Certificate in making a loan to Winco Ltd. in the
amount of $950,000.00 as of February 1, 1985.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
affixed their seals this 12th day of March, 1985.
WINCO LTD.
