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EXHIBIT 10.62
THIS SUBLEASE AGREEMENT, made and entered into as of the date set forth
herein by between ▇▇▇ LEASING, INC., a Georgia corporation, (herein called the
"Landlord") and ▇▇▇ AUTOMOTIVE GROUP, INC., a Georgia corporation (herein called
the "Tenant");
WITNESSETH THAT:
WHEREAS, Landlord entered into a certain Lease Agreement between the
Development Authority of Columbus, Georgia and Landlord dated as of July 1, 1997
(the "Authority Lease"), a copy of which is attached hereto and made a part
hereof as Exhibit A;
WHEREAS, Landlord has agreed to sublease to Tenant the Subleased
Premises described herein upon the terms and conditions stated herein; and
WHEREAS, Sunbelt Automotive Group, Inc., has agreed to guarantee the
obligations of Tenant hereunder,
NOW, THEREFORE, for and in consideration of the respective
representations, warranties and agreements herein contained, and for other good
and valuable consideration, receipt whereof is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND USE OF PHRASES
Section 1.1 DEFINITIONS. Unless the context clearly indicates a
different meaning, the following words and phrases, as used herein, shall have
the following respective meanings:
"ADDITIONAL BONDS" shall have the meaning set forth in Section 1.1 of
the Authority Lease.
"AFFILIATE" of any designated Person means any Person that directly or
indirectly controls or is controlled by or is under common control with
such designated Person. For the purposes of this definition, "control"
(including,
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with correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person whether through
the ownership of voting securities or by contract or otherwise.
"AUTHORITY" means the Development Authority of Columbus, Georgia, which
is the party of the first part in the Authority Lease.
"AUTHORITY LEASE," a copy of which is attached hereto as Exhibit A,
means the Lease Agreement between the Authority, party of the first
part, and ▇▇▇ Leasing, Inc., party of the second part, for the Leased
Premises.
"AUTHORIZED LANDLORD REPRESENTATIVE" means the person or persons
designated at the time as such by written certificate furnished to the
Tenant containing the specimen signature or signatures of such person
or persons and signed on behalf of the Landlord by the Chairman or the
Vice Chairman of its Board of Directors.
"AUTHORIZED TENANT REPRESENTATIVE" means the person or persons
designated at the time as such by written certificate furnished to the
Landlord containing the specimen signature or signatures of such person
or persons and signed by the Tenant.
"BANK" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
"BASIC RENT" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
"CONVERSION DATE" shall have the meaning set forth in Section 1.1 of
the Authority Lease.
"COUNSEL" means any attorney duly admitted to practice before the
highest court of any state of the United States of America or the
District of Columbia, it being understood that "Counsel" may also mean
a firm of attorneys all of whose members are so admitted to practice.
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"EMINENT DOMAIN" shall have the meaning set forth in Section 1.1 of
the Authority Lease.
"EVENT OF DEFAULT" means an "Event of Default" as specified in Section
9.1 hereof.
"GUARANTOR" means Sunbelt Automotive Group, Inc., a corporation
organized and existing under the laws of the State of Georgia. Said
corporation has unconditionally guaranteed the performance by the
Tenant of its obligations under the Sublease pursuant to Section 12.12
hereunder.
"HOLDER" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
"INTEREST PAYMENT DATE" shall have the meaning set forth in Section 1.1
of the Authority Lease.
"LANDLORD" means ▇▇▇ Leasing, Inc., a corporation organized and
existing under the laws of the State of Georgia with its principal
place of business in Columbus, Muscogee County, Georgia, or its
assignee, as the case may be. ▇▇▇ Leasing, Inc., or its assignee, as
the case may be, is the Landlord in this Sublease, and is referred to
throughout as "Landlord."
"NET CONDEMNATION AWARD" means the total amount received as
compensation for any part of the Project taken under the exercise of
the power of Eminent Domain, plus damages to any part of the Project
not taken (including any compensation referable to the interest of the
Landlord in the part of the Project taken and as damages to the
interest of the Landlord in any part thereof not taken, but not
including any compensation belonging to the Landlord pursuant to the
provisions of Section 7.4 hereof), which compensation shall consist of
(i) all awards received pursuant to administrative or judicial
proceedings conducted in connection with the exercise of the power of
Eminent Domain, plus (ii) all amounts received as the result of any
settlement of compensation claims (whether in whole or in part)
negotiated with the condemning authority, less (iii) all attorneys'
fees and other expenses incurred in connection with the receipt of such
compensation, including attorneys' fees and expenses relating to such
administrative or
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judicial proceedings and to such settlement negotiations (other than
any that may be paid directly by the Landlord).
"OUTSTANDING" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
"PERMITTED ENCUMBRANCES" shall have the meaning set forth in Section
1.1 of the Authority Lease.
"PERSON" means any natural person, corporation, partnership, trust,
government or governmental body, political subdivision, or other legal
entity as in the context may be possible or appropriate.
"PREMIUM" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
"PROJECT" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
"PROJECT BUILDINGS" shall have the meaning set forth in Section 1.1 of
the Authority Lease. Said buildings are part of the Subleased Premises
hereunder.
"PROJECT DEVELOPMENT COSTS" shall have the meaning set forth in Section
1.1 of the Authority Lease.
"PROJECT DEVELOPMENT WORK" shall have the meaning set forth in Section
1.1 of the Authority Lease.
"PROJECT EQUIPMENT" shall have the meaning set forth in Section 1.1 of
the Authority Lease, and it shall also include all additions,
replacements and substitutions thereto. Project Equipment is subleased
hereunder.
"REDEMPTION FUND" shall have the meaning set forth in Section 1.1 of
the Authority Lease.
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"REIMBURSEMENT AGREEMENT" shall have the meaning set forth in Section
1.1 of the Authority Lease.
"SERIES 1997 BONDS" shall have the meaning set forth in Section 1.1 of
the Authority Lease.
"SERIES 1997 LETTER OF CREDIT" shall have the meaning set forth in
Section 1.1 of the Authority Lease.
"SERIES 1997 SECURITY DEED" shall have the meaning set forth in Section
1.1 of the Authority Lease.
"SUBLEASE" OR "SUBLEASE AGREEMENT" means the Agreement or Lease between
Landlord and Tenant as it now exists or may be modified, supplemented
or amended as provided herein from time to time.
"SUBLEASED PREMISES" or "PREMISES" means the real property, buildings,
and all other property and property rights of every kind that are or
become subject to the demise of the Sublease, which said premises or
subleased premises are described on Exhibit B attached hereto and as
supplemented hereunder. Unless the context clearly indicates otherwise,
the term "Subleased Premises" or "Premises" shall generally have the
same meaning as the term "Project" in the Authority Lease. Said terms
include the Project Site, Project Equipment, and other property as
defined in the Authority Lease.
"SUBLEASE TERM" means the period described in Section 5.1 hereof.
"SUNBELT IPO" means the initial public offering of Sunbelt common
stock, which must close no later than August 15, 1998.
"TRUSTEE" shall have the meaning set forth in Section 1.1 of the
Authority Lease.
Section 1.2 DEFINITIONS CONTAINED IN THE INDENTURE. Unless the context
clearly indicates a different meaning, any words, terms or phrases that are used
in the Sublease as defined terms without being herein defined and that are
defined in
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the Indenture shall have the meanings respectively given them in the Authority
Lease and the documents referenced therein including the Indenture.
Section 1.3 USE OF PHRASES. "Herein", "hereby", "hereunder", "hereof",
"hereinbefore", "hereinafter" and other equivalent words refer to the Sublease
as an entirety and not solely to the particular portion in which any such word
is used. The definitions set forth in Section 1.1 hereof include both singular
and plural. Whenever used herein, any pronoun shall be deemed to include both
singular and plural and to cover all genders.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES BY THE LANDLORD. The Landlord
makes the following representations and warranties as the basis for the
undertakings on its part herein contained:
(a) Organization. Landlord is a corporation organized under the laws of
the State of Georgia, in good standing with all governmental authorities, and
its execution of this Sublease does not contravene or violate any law,
regulation or corporate bylaw.
(b) Litigation. There are no actions, suits or proceedings pending
(nor, to the knowledge of the Landlord, are any actions, suits or proceedings
threatened) against or affecting the Landlord or any property of the Landlord in
any court, or before an arbitrator of any kind, or before or by any governmental
body, which might materially and adversely affect the transactions contemplated
by this Sublease or which might adversely affect the validity or enforceability
of this Sublease or any other agreement or instrument to which the Tenant is or
is to be a party relating to the transactions contemplated by this Sublease.
(c) No Default. No event has occurred and no condition exists which
would constitute an "Event of Default" under the Authority Lease, as "Event of
Default" is therein defined, or which would become such an "Event of Default"
with the passage of time or with the giving of notice or both.
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Section 2.2 REPRESENTATIONS AND WARRANTIES BY THE TENANT. The Tenant
makes the following representations and warranties as the basis for the
undertakings on its part herein contained:
(a) Conflicting Agreements and Provisions. The Tenant is not a party to
any instrument or agreement or subject to any restriction or, to the best of the
Tenant's knowledge, to any judgment, order, rule or regulation of any court or
governmental body which materially and adversely affects the business,
prospects, operations, properties, assets or condition (financial or otherwise)
of the Tenant. Neither the execution and delivery of this Sublease Agreement,
nor the consummation of the transactions herein contemplated, conflicts with, or
results in a breach of, or constitutes a default under, or requires any consent,
approval or other action by, or any notice to, any Person (other than those
already obtained or made and which continue in full force and effect) under any
applicable law, regulation, agreement, instrument or order by which the Tenant
is bound or to which the Tenant is subject.
(b) Governmental Consents. All consents of any court, regulatory agency
or other governmental body necessary for the Tenant's execution and delivery of
this Sublease Agreement have been obtained and are in full force and effect.
(c) Litigation. Tenant has received no notice of any inquiry,
investigation or proceeding pending or threatened against or affecting the
Tenant before or by any court or governmental body which might result in any
material adverse change in the business, prospects, properties or assets or in
the condition (financial or otherwise) of the Tenant, or which might materially
and adversely affect the transactions contemplated by this Sublease Agreement,
or which might impair the ability of the Tenant to comply with its obligations
hereunder.
(d) No Defaults. The Tenant is not in material default in any respect
under any charter instrument or bylaw or, to the best of the knowledge of the
Tenant, any agreement or other instrument to which it is a party or by which it
is bound, or any judgment, order, rule or regulation of any court or other
governmental body applicable to it, to the extent in any such case that the
default in question would materially and adversely affect the transactions
contemplated by this Sublease Agreement or would impair the ability of the
Tenant to comply with its
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obligations hereunder. The Tenant is not in material default under the payment
of the principal of or the interest on any of its indebtedness and is not in
material default under any instrument or agreement under and subject to which
any indebtedness of the Tenant has been incurred, and no event has occurred or
is continuing under the provisions of any such instrument or agreement which
constitutes or will constitute an event of default thereunder.
ARTICLE III
DEMISING CLAUSES
Section 3.1 DEMISING CLAUSES. For and during the Sublease Term, the
Landlord hereby demises and subleases to the Tenant, subject to Permitted
Encumbrances, and the Tenant hereby rents from the Landlord, subject to
Permitted Encumbrances, the following described properties and related rights:
I
The real property in Muscogee County, Georgia, described on Exhibit C
attached hereto and made a part hereof
II
The Project Buildings and all other buildings, structures and other
improvements constructed in connection therewith and all fixtures now or
hereafter installed in the Project Buildings or in any of such other buildings,
structures and improvements constructed in connection therewith.
III
All items (whether or not fixtures) of machinery, equipment and other
personal property that at any time, under the provisions of the Sublease,
constitute the Project Equipment, including replacements, additions and
substitutions thereto that constitute Project Equipment as defined herein. All
of said real and personal property shall constitute the Subleased Premises.
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ARTICLE IV
CONCERNING THE PROJECT DEVELOPMENT WORK
Section 4.1 This Sublease is subject to the provisions of Article IV of
the Authority Lease. Unless otherwise noted by addendum hereto, Landlord has
completed performance of the Project work as provided therein. Tenant has
examined the premises, buildings, equipment and all other property that
constitutes the Subleased Premises, accepts the same in its present condition,
and acknowledges that all such real and personal property and property rights
are suitable and adequate for Tenant's purposes.
ARTICLE V
DURATION OF SUBLEASE TERM AND RENTAL PROVISIONS
Section 5.1 DURATION OF SUBLEASE TERM. The Sublease Term shall begin on
August 1, 1998, and subject to the provisions hereof, shall continue until 11:59
o'clock, P.M., on July 31, 2018. Landlord will deliver to the Tenant sole and
exclusive possession of the Subleased Premises (or such portion or portions
thereof as are then in existence) on the date the Sunbelt IPO closes, subject to
the inspection and other rights reserved in Section 8.3 of the Authority Lease,
and the Tenant will accept possession thereof at such time; provided, however,
that the Landlord and/or the Authority will be permitted such possession of the
Subleased Premises as shall be necessary and convenient to make any repairs,
restorations, additions or improvements required or permitted to be made by the
Authority and/or the Tenant pursuant to the provisions of the Authority Lease
and/or hereunder.
Section 5.2 BASIC RENT. For the use and occupancy of the Subleased
Premises during the Sublease Term, Tenant shall pay to Landlord, as Basic Rent,
two hundred forty (240) equal monthly payments of $90,966.46. Said amount shall
be adjusted to the actual cost of the project that exceeds or is less than
$11,091,706.04. The first payment shall be due and payable on August 1, 1998,
and one additional payment shall be due and payable on the first day of each
month thereafter until the total of two hundred forty (240) monthly payments are
paid.
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Section 5.2A PAYMENT OF BASIC RENT. Tenant shall pay Basic Rent to the
Trustee upon such terms and conditions as the parties hereto and the Trustee may
agree. If the parties and the Trustee cannot agree, Basic Rent shall be paid
directly to the Landlord.
Section 5.3 ADDITIONAL RENT. In addition to the basic rent described
above in Section 5.2 and all additional obligations described herein, Tenant
shall pay as additional rent the following:
(a) Any amount by which any interest payment that becomes due
on any Interest Payment Date, as described in Section 5.2(a) of the
Authority Lease, exceeds the interest payment that would have been due
had the interest rate been 6.25 percent during the period for which the
interest payment is made, which said amount shall be paid by the Tenant
within two (2) business days of written demand by Landlord, which
demand may be made at any time after Landlord pays the same; and,
(b) All additional rent as defined herein and in Section 5.3
and 5.4 of the Authority Lease, which the Landlord hereunder may be
required to pay to the Trustee, the Authority or any other authorized
party, all of which shall be paid by the Tenant within two (2) business
days of written demand by Landlord, which demand may be made at any
time after such additional rent comes due; and,
(c) Additional rent shall also include but not be limited to
letters of credit fees, marketing fees, taxes, other fees and all other
assessments and/or charges authorized by law or the Bond Documents,
assessed against the Landlord by the Authority, the Trustee or any
other party authorized to assess or demand any such fees or charges.
Section 5.4 OBLIGATIONS OF TENANT UNCONDITIONAL. The obligation of the
Tenant to pay all rent as and when it becomes due, to make all other payments
provided for herein and to perform and observe the other agreements and
covenants on its part herein contained shall be absolute and unconditional,
irrespective of any rights of set-off, recoupment or counterclaim it might
otherwise have against the Landlord. The Tenant will not suspend, discontinue,
reduce or defer any such payment or fail to perform and observe any of its other
agreements and
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covenants contained herein or (except as expressly authorized herein) terminate
the Sublease for any cause, including, without limiting the generality of the
foregoing, any acts or circumstances that may deprive the Tenant of the use and
enjoyment of the Subleased Premises, failure of consideration or commercial
frustration of purpose, or any damage to or destruction of the Subleased
Premises or any part thereof, or the taking by Eminent Domain of title to or the
right to temporary use of all or any part of the Subleased Premises, or any
change in the tax or other laws, rules and regulations of the United States of
America, the State of Georgia or any political or taxing subdivision or any
department or agency of either thereof, or any change in the cost or
availability of labor or energy adversely affecting the profitable operation of
the Subleased Premises by the Tenant, or any failure of the Landlord or
Authority to perform and observe any agreement or covenant, whether express or
implied, or any duty, liability or obligation arising out of or connected with
the Sublease.
Subject to the obligations of the Tenant to indemnify the Landlord and
the Authority provided herein, nothing contained in this section shall be
construed to prevent the Tenant, at its own cost and expense and in its own
name, from prosecuting or defending any action or proceeding or taking any other
action involving third persons which the Tenant deems reasonably necessary in
order to secure or protect its rights hereunder, and in such event the Landlord
will cooperate fully with the Tenant in any such action or proceeding. Such
action may include the right to pursue contractors and suppliers for default in
the performance of their contracts with respect to the Auto Mall, and Landlord
does hereby assign to Tenant such contractual rights as may be necessary to
enable Tenant to pursue such defaults.
Section 5.5 TERM RATE ON SERIES 1997 BONDS. If requested by Tenant,
Landlord shall cooperate with Tenant in establishing a Term Rate for the Series
1997 Bonds pursuant to the Indenture, provided that Tenant shall be responsible
for payment of any letter of credit fees or other fees and expenses incurred in
connection with establishing such Term Rate.
For purposes of this Agreement, the term "Term Rate" shall have the
meaning given in the Indenture.
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ARTICLE VI
PROVISIONS CONCERNING MAINTENANCE,
ADDITIONS, REMOVAL OF SUBLEASED PREMISES
EQUIPMENT, INSURANCE AND TAXES
Section 6.1 MAINTENANCE, ADDITIONS, ALTERATIONS, IMPROVEMENTS AND
MODIFICATIONS. The Tenant will, at its own expense, keep the Subleased Premises
in reasonably safe condition and keep all buildings, improvements to the real
property and other facilities at any time forming part of the Subleased Premises
in good repair and operating condition, making from time to time all necessary
and proper repairs thereto (including, without limitation, exterior and
structural repairs, decorations, finishes, repairs to glass, pavement, signs,
roof, plumbing, systems, electrical, all fixtures and structural components of
every kind and nature), and upon termination of the Sublease shall return the
Subleased Premises and improvements thereto in substantially the same condition
as received. Tenant shall repair and maintain in good repair all Project
Equipment, replace all such equipment that becomes obsolete or worn out from
use, and shall return said equipment to the Landlord upon termination of the
Sublease or any renewal thereof in substantially the same condition as received.
At any time and from time to time, the Tenant may, at its own cost and
expense, install any equipment or other personal property which does not
constitute part of the Leased Equipment and which in the Tenant's judgment is
necessary or convenient for its use and operation of Tenant's business on the
Subleased Premises, provided that the installation of such equipment or other
personal property does not significantly impair the value or utility of the
Subleased Premises or cause damage thereto or to any part thereof, or risk of
damage including risk of contamination from pollutants. Any such equipment or
personal property owned (or leased pursuant to any lease contract other than the
Sublease) by the Tenant may be removed by the Tenant at any time and from time
to time without responsibility or accountability to the Landlord, so provided
Tenant is not in default or anticipating a default at the time of removal, but
the Tenant shall promptly repair at, its own expense, any damage to the
Subleased Premises caused by the removal of any such equipment or other personal
property, and shall restore the Subleased Premises and all parts thereof that
are affected to its condition prior to the installation of said personal
property. Tenant shall hold harmless and defend Landlord from any and all claims
relating to or arising out of Tenant's activities under this subparagraph.
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Section 6.2 REMOVAL OF LEASED EQUIPMENT. Tenant shall not remove any
leased equipment from the Subleased Premises without the express written consent
of the Landlord, Trustee and Authority.
Section 6.3 TAXES, OTHER GOVERNMENTAL CHARGES AND UTILITY CHARGES. The
Tenant will pay all taxes, assessments, charges, claims and judgments including
but not necessarily limited to those that are specified and/or described in
Section 6.3 of the Authority Lease when and as they become due as stated
therein, and all other taxes, assessments, charges, claims, judgments of
whatever nature or kind as may become due during the term of this Sublease,
excluding judgments that are entered against the Landlord, which are unrelated
to the Subleased Premises but constitute a lien thereon.
The Landlord will forward to the Tenant any bills, statements,
assessments, notices or other instruments asserting or otherwise relating to any
such taxes, assessments or charges. Failure of Landlord to forward such bills
shall not relieve the Tenant from the obligation to pay the same, and the Tenant
shall pay the same immediately upon demand of the Landlord.
Upon request, Landlord shall consent to and assist Tenant with
facilitating the submission of such bills, assessments or charges directly to
Tenant, in which case Landlord shall have no further obligation with respect to
submitting such bills to the Tenant.
Tenant shall have the right to contest any taxes, assessments and/or
other charges that may be assessed against the Subleased Premises to the same
extent that the Landlord has such rights pursuant to the provisions of Section
6.3 of the Authority Lease.
The Tenant will also pay, as the same respectively become due, all utility
and other similar charges incurred in the operation, maintenance, use and upkeep
of the Subleased Premises.
Taxes, assessments, charges, claims and judgments that are required to
be paid hereunder shall include all of those that are charged directly against
the Landlord as well as those charged to the Authority or Trustee.
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Section 6.4 INSURANCE WITH RESPECT TO SUBLEASED PREMISES. The Tenant
will maintain such insurance as is required by Section 6.4 of the Authority
Lease and shall comply with said sections in all respects as if it were the
Lessee in the Authority Lease. Tenant will cause the policies of insurance to
name Landlord as an additional insured, and Tenant shall maintain such
additional insured coverage as may reasonably be required to fully protect the
insurable interests of the Landlord.
ARTICLE VII
PROVISIONS RESPECTING DAMAGE,
DESTRUCTION AND CONDEMNATION
Section 7.1 DAMAGE AND DESTRUCTION PROVISIONS. If, during the term of
the Sublease and any renewal thereof, the Subleased Premises is destroyed, in
whole or in part, or is damaged, by fire or other casualty, the Tenant will
continue to pay the rent required to be paid hereunder and will promptly repair,
replace or restore the property destroyed or damaged to substantially the same
condition as prior to the event causing such damage or destruction.
All property acquired in connection with the repair, replacement or
restoration of any part of the Subleased Premises pursuant to the provisions of
this Section 7.1 shall be and become part of the Subleased Premises and shall be
held by the Tenant on the same terms and conditions as the property originally
constituting the Subleased Premises.
Section 7.2 CONDEMNATION PROVISIONS. If title to the Subleased Premises
or any part thereof is taken under the exercise of the power of Eminent Domain,
the entire condemnation award in respect of such taking [including, without
limitation, (i) all amounts received as the result of any settlement of
compensation claims negotiated with the condemning authority, and (ii) any
amount awarded as compensation for the interest of the Tenant in the part of the
Subleased Premises taken and as damages to the interest of the Tenant in any
part thereof not taken, but not including any condemnation award belonging to
the Tenant pursuant to the provisions of Section 7.4 hereof] shall be applied
and certain related actions shall be taken in accordance with the succeeding
provisions of this Section 7.2:
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(a) Taking of All or Substantially All the Subleased Premises During
the Term of the Sublease or Any Renewal Thereof. If all or substantially all the
Subleased Premises is so taken by such exercise of the power of Eminent Domain
during the term of the Sublease or any renewal thereof, the entire condemnation
award in respect of such taking shall be paid to the Landlord and the Sublease
shall terminate [except as to the provisions of this subsection (a) and any
other provisions hereof which are expressly stated herein to survive the
termination of the Lease] as of the forty-fifth (45th) day after the receipt by
the Landlord of the final installment of the entire condemnation award in
respect of such taking.
(b) Taking of Less than Substantially All the Subleased Premises During
the Term of the Sublease or Any Renewal Thereof. If less than substantially all
the Subleased Premises is taken by such exercise of the power of Eminent Domain
during the term of the Sublease or any renewal thereof, all obligations of the
Tenant under the Sublease which are still capable of performance (including,
without limitation, the obligation of the Tenant to pay the Basic Rent and all
other amounts payable hereunder) shall continue in full force and effect.
Subject to the provisions of the Reimbursement Agreement and the Series 1997
Security Deed, the Tenant shall be entitled to collect, hold and apply all of
the Net Condemnation Award in respect of any such taking, regardless of the
amount thereof, and any part of such award initially paid to the Landlord shall
be paid over to the Tenant or applied as the Tenant may direct in accordance
with the provisions hereof, and the Landlord will cause the Authority and/or the
Trustee to pay any such proceeds to Tenant pursuant to the provisions of the
Authority Lease. The Net Condemnation Award in respect of any such taking shall
be applied by the Tenant, or at its direction, for one or more of the following
purposes:
(1) payment of the costs of repairing, restoring, modifying, relocating
or rearranging any portions of the Project not taken but damaged or adversely
affected by such taking, all under such circumstances and upon such terms as
shall be specified by the Lessee and as shall not change the character of the
Project to such extent that it will not constitute facilities eligible for
financing by the Authority within the meaning of the Enabling Law; or,
(2) payment of the costs of acquiring (by construction, purchase or
otherwise) such additional facilities and equipment as the Lessee may direct,
which facilities and equipment (i) shall be of such nature as to constitute
facilities
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eligible for financing by the Authority within the meaning of the Enabling Law,
(ii) shall be acquired by the Authority and made subject to the demise of the
Lease free of liens and encumbrance other than Permitted Encumbrances, and (iii)
shall be deemed a part of the Project and made available for use by the Lessee,
without the payment of additional rent hereunder, to the same extent as if such
facilities and equipment had originally constituted part of the Project and had
been specifically demised hereby.
In the event that the Tenant determines to apply the Net Condemnation
Award (or any specified portion thereof), pursuant to the provisions of
subparagraphs (1) or (2) of this subsection, for payment of the costs of
repairing, restoring, modifying, relocating or rearranging any part of the
Project or for payment of the costs of acquiring additional property to become
part of the Project, as the case may be, the Landlord shall cause the Authority,
at the request of the Tenant, to undertake in its own name such repair,
restoration, modification, relocation or rearrangement or such acquisition of
additional property, and in such case the Tenant shall pay such award (or
specified portion thereof) to the Trustee for the account of the Authority,
pursuant to the provisions of Section 7.2(b) of the Authority Lease. The
Landlord shall cause the Trustee to create a trust fund to apply the Net
Condemnation Award (or specified portion thereof) for the payment of the costs
of repairing, restoring, modifying, relocating or rearranging any part of the
Project or for payment of the costs of acquiring additional property, as the
case may be, pursuant to the provisions of Section 7.2(b) of the Authority
Lease, and such award (or specified portion thereof) shall be deposited in such
fund and held therein, invested to the extent not immediately required for the
payment of such costs, and disbursed pursuant to requisitions submitted by the
Tenant, all on the same terms and conditions (with the necessary changes in
detail) as provided in the Indenture with respect to the proceeds of the Series
1997 Bonds deposited in such fund.
Any balance of the Net Condemnation Award (or any balance of the
portion thereof specified for the payment of such costs) remaining after payment
of all such costs, whether at the time held by the Tenant or the Trustee, shall
be paid to the Landlord who shall cause them to be used pursuant to the
provisions of Section 7.2 of the Authority Lease, shall be paid into the Bond
Fund or, if the Indenture Indebtedness has been paid in full and no Event of
Default shall have occurred and be continuing, such moneys shall be applied to
the payment of any
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obligations then owed to the Bank under the Reimbursement Agreement, and any
such moneys remaining after the payment of all such obligations then owed to the
Bank shall be paid to the Tenant. In the event that the Net Condemnation Award
(or the portion thereof specified for the payment of such costs) is not
sufficient to pay in full the costs of such repair, restoration, modification,
relocation or rearrangement, or the costs of acquiring such additional property,
as the case may be, the Tenant (i) will nonetheless complete such repair,
restoration, modification, relocation or rearrangement or the acquisition of
such additional property, as the case may be, and will pay that portion of the
costs thereof in excess of the amount of the Net Condemnation Award (or
specified portion thereof) available for the payment of such costs, or (ii) will
pay to the Trustee, for the account of the Authority, the moneys necessary to
complete such repair, restoration, modification, relocation or rearrangement or
the acquisition of such additional property, as the case may be, in which case
the Authority will cause such undertakings to be so completed, and the Trustee
will, upon completion of such undertakings and Payment in Full of the costs
thereof, return to the Tenant any portion of such payment by the Tenant that is
not needed therefor. The Tenant shall not, by reason of the payment of such
excess costs (whether by direct payment thereof or payments to Trustee
therefor), be entitled to any reimbursement from the Authority or to any
reduction or abatement of the rentals and other payments due from the Tenant
hereunder.
Section 7.3 CONDEMNATION OF RIGHT TO USE OF THE SUBLEASED PREMISES FOR
LIMITED PERIOD. If the use, for a limited period, of all or part of the
Subleased Premises is taken under the exercise of the power of Eminent Domain,
the Sublease (including, without limitation, the provisions hereof relating to
the payment of Basic Rent) shall, continue in full force and effect, but with
the consequences specified in the succeeding provisions of this section. If the
period of such taking expires on or before the expiration of the Sublease Term
or any renewal thereof, the Tenant shall be entitled to receive the entire
condemnation award made therefor, whether by way of damages, rent or otherwise,
and shall upon being restored to possession restore the Subleased Premises to
substantially the same condition as prior to such taking, with such changes,
alterations and modifications as will not significantly impair the operating
utility of the Subleased Premises, or change the character thereof to such
extent that it will not constitute facilities eligible for financing by the
Authority within the meaning of the Enabling Law. If such taking occurs during
the Sublease Term or any renewal
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thereof, but the period of such taking expires after the expiration of the
Sublease Term, the Tenant shall be entitled to receive that portion of the award
allocable to the period from the date of such taking to the end of the Sublease
Term, and the Landlord shall be entitled to the remainder thereof.
Section 7.4 CONDEMNATION OF TENANT-OWNED PROPERTY. The Tenant shall be
entitled to any condemnation award or portion thereof made for damages to or the
taking of its own property not included in the Subleased Premises, but any
condemnation award resulting from damages to or the taking of all or any part of
the Subleased Premises shall be applied in accordance with the provisions of
Section 7.2 or 7.3 hereof, whichever may be applicable. In the event of any
taking which involves both the Subleased Premises and property of the Tenant,
the Tenant shall be responsible for all attorney's fees and other expenses
properly allocable to the taking of its own property.
Section 7.5 CONDUCT OF CONDEMNATION PROCEEDINGS. Landlord is authorized
to handle and conduct any prospective or pending condemnation proceeding with
respect to the Subleased Premises or any part thereof and take such actions as
it deems appropriate in its sole judgment to carry out the provisions hereof,
and Tenant will cooperate in connection with such proceeding. In no event will
the Landlord settle, or consent to the settlement of, any prospective or pending
condemnation proceeding with respect to the Subleased Premises or any part
thereof that affects the Tenant's interest in the Subleased Premises without
conferring with the Tenant and obtaining Tenant's consent, which shall not be
unreasonably withheld. Landlord may also consent for the Tenant to handle and
conduct any such proceeding or any part thereof upon such reasonable conditions
as the Landlord may impose.
Section 7.6 COOPERATION OF THE LANDLORD WITH RESPECT TO RESTORATION OF
THE PROJECT IN THE EVENT OF CASUALTY OR CONDEMNATION. If, as a result of the
taking of title to less than substantially all the Subleased Premises or the
taking of the temporary use of all or any part of the Subleased Premises through
the exercise of the power of Eminent Domain, or if, as a result of any event
causing destruction or damage to the Subleased Premises or any part thereof, the
Tenant determines, in accordance with any applicable provision of this article,
to acquire (by purchase, construction or otherwise) any additional property to
replace any part of the Subleased Premises so taken, or to have the Subleased
Premises repaired, re-
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placed, restored, modified, relocated or rearranged in order to correct or
ameliorate any condition caused by such taking, damage or destruction, as the
case may be, then the Landlord will cause the Authority to execute and deliver,
or cause to be executed and delivered, all contracts, orders, requisitions,
instructions and other written instruments and do, or cause to be done, all
other acts that may be necessary or proper in carrying out all such undertakings
with respect to the Subleased Premises, in accordance with and pursuant to the
provisions of Section 7.6 of the Authority Lease.
ARTICLE VIII
PARTICULAR COVENANTS OF THE TENANT
Section 8.1 GENERAL COVENANTS. The Tenant will, in the use of the
Subleased Premises, comply in all material respects with all valid and
applicable laws, ordinances, rules, regulations and orders of all governmental
authorities or agencies.
Section 8.2 RELEASE AND INDEMNIFICATION COVENANTS. The Tenant releases
the Landlord, Authority, Trustee and the Bank (and each director, officer,
employee and agent thereof) from, and hereby indemnifies and holds said parties
(and each director, officer, employee or agent thereof) harmless and agrees to
defend the same against, any and all claims, damages, losses, costs, expenses
(including reasonable attorneys' fees for counsel of the indemnified party's
choice) and liabilities of any character or nature whatsoever, regardless of by
whom asserted or imposed, and losses of every conceivable kind, character and
nature whatsoever claimed by or on behalf of any person, firm, corporation or
governmental authority, arising out of, resulting from, or in any way connected
with the leasing of the Subleased Premises to the Tenant and the condition, use,
possession or management of the Subleased Premises during the Lease Term;
provided, however, that the Tenant shall not be obligated to indemnify any
director, officer, employee or agent of the Authority against any claim,
liability or loss in any way connected with the Subleased Premises unless such
claim, liability or loss arises out of or results from official action taken in
the name and behalf of the Authority by such director, officer, employee or
agent.
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The Tenant hereby further indemnifies, holds harmless and agrees to
defend the Landlord, the Authority and the Trustee (and each director, officer,
employee and agent thereof) against
(a) any claims, damages, losses, costs, expenses (including reasonable
attorneys' fees for counsel of the indemnified party's choice) or liabilities
whatsoever arising out of or based upon any untrue or misleading statement or
alleged untrue or misleading statement of any material fact contained in any of
the aforesaid information furnished, or caused to be furnished, by the Tenant to
any prospective purchaser of the Series 1997 Bonds or the Bank, or the omission
or alleged omission to state in any such information any material fact necessary
to make the statements contained therein not misleading in the light of the
circumstances under which such statements were made, and
(b) any claims, damages, losses, costs, expenses (including reasonable
attorneys' fees for counsel of the indemnified party's choice) or liabilities
arising out of any action taken by the Landlord at the request of the Tenant (or
any other person authorized to act on behalf of the Tenant) in connection with
the offering and sale of the Series 1997 Bonds or in connection with the
Subleased Premises.
The Tenant will pay or reimburse all legal or other expenses reasonably
incurred by the Landlord, the Authority or the Trustee, as the case may be (and
each director, officer, employee and agent thereof), in connection with the
investigation or defense of any action or proceeding, whether or not resulting
in liability, with respect to any claim, liability or loss in respect of which
indemnity may be sought against the Tenant under the provisions of this section.
In the event that any action or proceeding is brought against any
indemnifiable party (whether the Landlord, or any of the Landlord's directors,
officers, employees or agents, the Authority, or any of the Landlord's
directors, officers, employees or agents, or the Trustee or its officers,
directors, employees or agents), in respect of which indemnity may be sought
against the Tenant under the provisions of this section, such indemnifiable
party shall, as a condition of the Tenant's liability under the provisions of
this section, be obligated to notify the Tenant promptly in writing of the
commencement of such action or proceeding and shall thereafter forward to the
Tenant a copy of every summons, complaint, pleading, motion or other process
received with respect to such action or proceeding. The
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Tenant may with the express written consent of Landlord, which shall not be
unreasonably withheld, and if so requested by such indemnifiable party, shall at
any time assume the defense of such indemnifiable party in connection with any
such action or proceeding, and in such case the Tenant shall pay all expenses of
such defense and shall have full and complete control of the conduct on the part
of such party of any such action or proceeding, including, without limitation,
the right to settle or compromise any claim giving rise to such action or
proceeding upon such terms and conditions as the Tenant, in its sole discretion,
shall determine, provided that the Landlord, the Authority, and the Trustee
shall have the right to select their own respective Counsel in any such matter.
Nothing contained in this section shall be construed to indemnify the
Landlord, the Authority, or any of their directors, officers, employees or
agents, or the Trustee, against, or to release any of such parties from
liability for, any claim, liability or loss that may result (i) from willful
misconduct or gross negligence on the part of such parties or (ii) from the
failure of such parties to perform their obligations under any applicable
agreement or (iii) from the sole negligence of such party.
Anything to the contrary herein contained notwithstanding, the
covenants of the Tenant contained in this section shall, with respect to any
claim, liability or loss for which the Tenant is obligated to provide indemnity,
remain in full force and effect after the termination of the Lease until (i) any
cause of action brought in respect of such claim, liability or loss shall be
barred by the applicable statute of limitation or (ii) the Payment in Full or
the satisfaction of such claim, liability or loss, including all reasonable
expenses incurred by the indemnifiable party or parties in defending against
such claim, liability or loss; provided, however, that in the event any action
or proceeding arguably barred by the applicable statute of limitation is brought
against any indemnifiable party hereunder, the Tenant shall be obligated to
defend such indemnifiable party with respect to such action or proceeding, all
to the end that the bar of the statute of limitation may be asserted by the
tenant against the party bringing such action or proceeding but may not be
asserted by the Tenant against the indemnifiable party in order to avoid
performing any of its obligations under this section. The right of the Tenant to
raise the bar of any such statute against any indemnified party is hereby
expressly waived.
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Section 8.3 INSPECTION OF THE SUBLEASED PREMISES. During the term of
the Sublease and any renewal thereof, the Tenant will permit the Landlord, the
Authority, the Trustee, the Bank and their duly authorized representatives at
all reasonable times to examine and inspect the Subleased Premises or any part
thereof.
Section 8.4 CORPORATE EXISTENCE OF TENANT. The Tenant will (a) do or
cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence, rights and franchises of the Tenant, (b) comply
with all laws, rules and regulations of any governmental body or regulatory
authority (federal, state or local) applicable to the Tenant, (c) qualify and
remain qualified as a foreign corporation in each jurisdiction in which such
qualification is necessary in view of the Tenant's business or operations, and
(d) at all times maintain, preserve and protect all franchises and trade names.
Section 8.5 FURTHER ASSURANCES. The Tenant will, at its own cost and
expense, take all actions that may at the time and from time to time be
necessary to perfect, preserve, protect and secure the interests of the
Landlord, the Authority, and the Trustee, or any of them, in and to the
Subleased Premises and the revenues therefrom pledged and assigned in the
Indenture, including, without limitation, the filing of all financing and
continuation statements that may at the time be required under the Georgia
Uniform Commercial Code.
ARTICLE IX
CERTAIN PROVISIONS RELATING TO
THE SUBLEASED PREMISES
Section 9.1 PROVISIONS RELATING TO ASSIGNMENT AND SUBLEASING BY TENANT.
Tenant may not assign this Sublease, any right or obligation thereto, and/or
substitute any party in its place to perform any duty hereunder or receive any
benefit, without the express written consent of the Landlord, which consent
shall not be unreasonably withheld. No such assignment shall relieve the Tenant
of any obligation under the Sublease or modify any right of the Landlord against
the Tenant, all of which shall remain in full force and effect.
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ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.1 EVENTS OF DEFAULT DEFINED. The following shall be "Events
of Default" under the Sublease, and the term "Event of Default" shall mean,
whenever it is used in the Sublease, any one or more of the following events:
(a) Failure by the Tenant to pay any installment of Basic Rent or to
make any other payment required under the terms hereof [other than any payment
referred to in clause (b) of this section] on the date that such installment or
such payment shall become due and payable by the terms of the Sublease;
(b) Failure by the Tenant to pay any amount due the Trustee, Authority,
Landlord or any other party, as the case may be, assessed for reasonable
charges, charges and disbursements, and other charges and fees Tenant is
obligated to pay hereunder within ten (10) days after written demand for such
payment by the Landlord, which demand may be made on or after the date on which
such amount is due and payable;
(c) Failure by the Tenant to perform or observe any agreement, covenant
or condition required by the Sublease to be performed or observed by it [other
than the agreements and covenants referred to in the preceding clauses (a) and
(b) of this section], which failure shall have continued for a period of twenty
(20) days after written notice specifying, in reasonable detail, the nature of
such failure and requiring the Tenant to perform or observe the agreement,
covenant or condition with respect to which it is delinquent shall have been
given to the Tenant by the Landlord;
(d) Any warranty, representation or other statement by or on behalf of
the Tenant contained in the Sublease, being false or misleading in any material
respect at the time made, but only if the inaccuracy of such warranty,
representation or other statement is not remedied in a manner satisfactory to
the Landlord;
(e) Institution by the Tenant of proceedings to be adjudicated a
bankrupt or insolvent, or consent by the Tenant to the filing of a bankruptcy or
insolvency proceeding against it, or the filing by the Tenant of a petition or
answer or consent seeking relief under Title 11 of the United States Bankruptcy
Code, as now
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constituted or as amended, or any other applicable federal or state bankruptcy
or other similar law, or consent by the Tenant to the institution of proceedings
thereunder or to the filing of any such petition, or consent by the Tenant to
the appointment of, or the taking of possession of any of its property by, a
receiver, liquidator, trustee, custodian or assignee in bankruptcy or insolvency
of the Tenant or for all or a major part of its property, or an assignment by
the Tenant for the benefit of its creditors, or a written admission by the
Tenant of its inability to pay its debts generally as they become due, or the
taking of any corporate action by the Tenant in furtherance of any of the
foregoing events or actions;
(f) The entry of a decree or order by a court of competent jurisdiction
for relief in respect of the Tenant or adjudging the Tenant to be a bankrupt or
insolvent or approving as properly filed a petition seeking reorganization of
the Tenant or the arrangement, adjustment or composition of its obligations
under Title 11 of the United States Bankruptcy Code, as now constituted or as
amended, or any other applicable federal or state bankruptcy or other similar
law, which decree or order shall have continued undischarged or unstayed for a
period of sixty (60) days; or the entry of a decree or order of a court of
competent jurisdiction for the appointment of a receiver, liquidator, trustee,
custodian or assignee in bankruptcy or insolvency for the Tenant or for all or a
major part of its property, or for the winding up or liquidation of its affairs,
which decree or order shall have remained in force undischarged or unstayed for
a period of sixty (60) days;
(g) The failure of the Tenant to perform any other obligation of the
Authority Lease, which it has assumed pursuant to the terms hereof;
(h) The loss of its Toyota, Buick, Pontiac, Mitsubishi, GMC, Mazda or
Saturn franchises purchased from Landlord, or the failure of Tenant to operate
any of said franchises on the Subleased Premises, unless Tenant replaces any
such lost or non-operated franchise with another franchise to which Landlord
consents, which consent shall not be unreasonably withheld; or
(i) Any breach by Tenant of that certain "Exclusive Use Agreement"
between ▇▇▇ Pontiac-GMC Truck, Inc., and General Motors Corporation relating to
the Buick franchise signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, III, on or about 12/11/96.
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Section 10.2 REMEDIES ON DEFAULT. Whenever any Event of Default shall
have happened, the Landlord may take any one or more of the following remedial
actions:
(a) take possession of the Subleased Premises, exclude the Tenant from
possession thereof and rent the same for the account of the Tenant, holding the
Tenant liable for the balance of all rent and other amounts due under the
Sublease;
(b) terminate the Sublease, take possession of the Subleased Premises,
exclude the Tenant from possession thereof and lease the same for the account of
the Landlord, holding the Tenant liable for all rent and other amounts due under
the Sublease until the date such other lease is made for the account of the
Landlord;
(c) declare immediately due and payable all Basic Rent that may become
due under the term of the Sublease or any renewal term then in effect;
(d) have access to, and inspect, examine and make copies of, the books,
records and accounts of the Tenant; and
(e) institute whatever legal proceedings may appear necessary or
desirable to collect the rent then due, whether by declaration or otherwise, or
to enforce any obligation, covenant or agreement of the Tenant under the
Sublease or any obligation of the Tenant imposed by any applicable law.
Section 10.3 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Landlord is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under the Sublease or now or
hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any Event of Default shall impair any
such right or power or shall be construed to be a waiver thereof but any such
right or power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Landlord or the Trustee to exercise any
remedy reserved to it in this article, it shall not be necessary to give any
notice, other than such notice as is herein expressly required. Any remedy
available, conferred upon or reserved to the Landlord hereunder may be exercised
from time to time or at any time in the Landlord's sole discretion or as may be
required by the Trustee or the Authority.
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Section 10.4 AGREEMENT TO PAY ATTORNEYS' FEES. In the event that, as a
result of an Event of Default or a threatened Event of Default by the Tenant,
the Landlord should employ attorneys at law or incur other expenses in or about
the collection of rent or the enforcement of any other obligation, covenant,
agreement, term or condition of the Sublease, the Tenant will pay to the
Landlord reasonable attorneys' fees and other reasonable expenses so incurred by
the Landlord.
Section 10.5 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event
any agreement contained in the Sublease should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder. Further, neither the receipt nor the acceptance of any rent hereunder
by the Landlord shall be deemed to be a waiver of any breach of any covenant,
condition or obligation herein contained or a waiver of any Event of Default
even though at the time of such receipt or acceptance there has been a breach of
one or more covenants, conditions or obligations on the part of the Tenant
herein contained or an Event of Default (or both) and the Landlord has knowledge
thereof.
ARTICLE XI
OPTIONS
Section 11.1 OPTION TO RENEW THE SUBLEASE. Provided that Tenant is not
in default hereunder at the time of renewal, and the Sublease is in full force
and effect, Landlord does hereby grant and give to the Tenant an option to renew
this Sublease Agreement at the end of the original term, or at the end of a
prior renewal term, as the case may be, for two (2) additional sixty (60) month
periods by giving Landlord at least a one hundred eighty (180) day written
notice of its intention to renew prior to the expiration of the existing term or
renewal term, as the case may be.
All terms and conditions of the Sublease upon any renewal shall remain
in full force and effect upon any renewal except that Basic Rent shall be
adjusted upward by the percentage difference between the Consumer Price Index as
defined below on the date of execution on this Sublease or first renewal, as the
case may be, and the Consumer Price Index on the date of renewal or second
renewal, as the case may be. The Consumer Price Index, for the purposes hereof,
shall be defined as the unadjusted average of "all items" shown on the "United
States city average
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for urban wage earners and clerical workers, all items, groups, sub-groups and
special groups of items as promulgated by the Bureau of Labor Statistics of the
United States Department of Labor". In the event that such index is not
available, then the parties hereto shall ascertain and utilize some similar
criteria to establish such index for use in accordance herewith and pursuant
hereto.
ARTICLE XII
MISCELLANEOUS
Section 12.1 COVENANT OF QUIET ENJOYMENT. SURRENDER. So long as the
Tenant performs and observes all the covenants and agreements on its part herein
contained, it shall peaceably and quietly have, hold and enjoy the Subleased
Premises during the Sublease Term subject to all the terms and provisions
hereof. At the end of the Sublease Term or any renewal thereof, as the case may
be, or upon any prior termination of the Sublease for reasons stated herein, the
Tenant will surrender to the Landlord possession of all property then subject to
the demise of the Sublease in the same condition as originally received by the
Tenant.
Section 12.2 SUBLEASE SUBORDINATE TO AUTHORITY LEASE AND OTHER RIGHTS.
Anything contained herein to the contrary notwithstanding, the rights of the
Tenant hereunder are subject and subordinate to the Authority Lease and
subordinate to the rights of other parties to whom Landlord's rights are
subordinate under the Authority Lease. Tenant shall perform all other
obligations of the Landlord in the Authority Lease not specifically addressed
herein and shall comply with all covenants and conditions required of the
Landlord thereunder. Tenant, however, shall not have the rights of the Landlord
under said Sublease.
Section 12.3 REAFFIRMATION OF AUTHORITY LEASE AND RIGHTS OF AUTHORITY.
Nothing contained herein shall change, modify or amend the rights of the
Authority under the Authority Lease, or arising out of the Authority Lease of
relating thereto. Nothing contained herein shall create or impose any obligation
or duty on the Authority that is not set forth in the Authority Lease, and
nothing contained herein shall provide to the Tenant any rights of the Landlord
under the Authority Lease or arising out of the Authority Lease or relating
thereto, except by written consent of the Authority.
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Section 12.4 THIS SUBLEASE A NET SUBLEASE. The Tenant recognizes and
understands that it is the intention hereof that the Sublease herein made shall
be a net Sublease, but said Sublease shall confer no rights of title or
ownership to any leased property, no option to acquire any ownership rights
and/or no rights of any kind to acquire any such rights. The Sublease shall be
construed to effectuate such intent.
Section 12.5 NOTICES. All notices, demands, requests and other
communications hereunder shall be in writing and delivered by one of the
following methods: (i) by personal delivery at the hand delivery address
specified below, (ii) by first-class, registered or certified mail, postage
prepaid, addressed as specified below or (iii) if facsimile transmission
facilities for such party are identified below or pursuant to a separate notice
from such party, sent by facsimile transmission to the number specified below or
in such notice. The hand delivery address, mailing address and (if applicable)
facsimile transmission number for receipt of notice or other documents by such
parties are as follows:
(a) If to the Landlord:
By Mail: ▇▇▇ Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, III
By Hand: ▇▇▇ Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, III
By Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to the Tenant:
By Mail: ▇▇▇ Automotive Group, Inc.
By Hand:
By Facsimile:
(c) If to Guarantor:
By Mail: Sunbelt Automotive Group, Inc.
By Hand:
By Facsimile:
The above-mentioned parties may, by like notice, designate any further
or different addresses to which subsequent notices shall be sent. Any notice
hereunder signed on behalf of the notifying party by a duly authorized attorney
at law shall be valid and effective to the same extent as if signed on behalf of
such party by a duly authorized officer or employee. Any notice or other
document shall be deemed delivered when actually received by the party to whom
directed at the address or number specified pursuant to this section, or, if
sent by mail, three (3) days after such notice or document is deposited in the
United States mail, as provided above.
Whenever, under the provisions hereof, any request, consent or approval
of a party hereto is required or authorized, such request, consent or approval
shall (unless otherwise expressly provided herein) be signed on behalf of the
party by an Authorized Representative; and each of the parties are authorized to
act and rely upon any such requests, consents or approvals so signed.
Section 12.6 CONCERNING CERTAIN PRIOR AND CONTEMPORANEOUS AGREEMENTS.
The Sublease shall completely and fully supersede all other prior or
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contemporaneous agreements, both written and oral, between the Landlord and the
Tenant relating to the leasing of the Subleased Premises, except for the
provisions of the promissory note from Sunbelt to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, III,
relating to a default thereunder.
Section 12.7 AMENDMENT OF SUBLEASE. Anything contained herein to the
contrary notwithstanding, this Sublease Agreement may be amended only by written
agreement, signed by both parties hereto.
Section 12.8 BINDING EFFECT. The Sublease shall inure to the benefit
of, and shall be binding upon the parties, and their respective successors and
assigns. The Tenant shall not have the right to assign this Agreement, any part
hereof, any right or obligation hereunder, to any other person without the
express written consent of the Landlord. Tenant shall not have the right to
substitute or subcontract the performance of any obligation hereunder without
the express written permission of the Landlord. Any such assignment,
substitution or subcontract that is approved shall not release Tenant from its
obligations hereunder, which shall remain in full force and effect. Landlord
shall have the unrestricted right to assign this Sublease.
Section 12.9 ARTICLE AND SECTION CAPTIONS. The article and section
headings and captions contained herein are included for convenience only and
shall not be considered a part hereof or affect in any manner the construction
or interpretation hereof.
Section 12.10 GOVERNING LAW. The Sublease shall in all respects be
governed by and construed in accordance with the laws of the State of Georgia.
Section 12.11 ACKNOWLEDGMENT OF BOND DOCUMENTS. Tenant acknowledges
that it has read the Authority Lease, which is attached hereto, all of the Bond
Documents and other documents referenced therein, that it accepts the terms
hereof, and accepts the Subleased Premises subject to the provisions of all of
said documents, and that it will execute such acknowledgments, consents and/or
other documents that the Authority, the Trustee and/or the Bank may reasonably
request to acknowledge such acceptance and compliance with the provisions
thereunder.
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Section 12.12 GUARANTY. The Guarantor does unconditionally guarantee
the obligations of the Tenant hereunder, and Guarantor shall be jointly,
severally, primarily and individually liable for all such obligations. Landlord
shall have all rights and remedies against the Guarantor that it has against the
Tenant, that rights of the Guarantor shall be no greater than the rights of the
Tenant thereunder, and Guarantor hereby waives protest, demand, notice and any
and all other rights to the contrary.
Guarantor's liability is direct, immediate, absolute, continuing,
unconditional and unlimited. Landlord shall not be required to pursue any
remedies against Tenant or against any collateral as a condition to enforcement
of this guaranty. Guarantor shall not be discharged or released by reason of the
discharge or release of Tenant for any reason, including a discharge in
bankruptcy, receivership or other proceedings, a disaffirmation or rejection of
the Sublease by a trustee, custodian or other representative in bankruptcy, a
stay or other enforcement restriction, or any other reduction, modification,
impairment or limitation of Tenant's liability or any remedy of Landlord.
Landlord and Tenant may modify this Sublease, and Landlord may waive
any right or remedy against the Tenant without discharging, waiving or otherwise
affecting the liability of the Guarantor hereunder. Guarantor subordinates any
rights that it may have against the Tenant or that may arise hereunder by reason
of this Guaranty until all obligations of the Tenant to the Landlord hereunder
are fully paid and/or satisfied.
Section 12.13 PROMISSORY NOTE. This Sublease is executed as a part of
the sale of the shares of ▇▇▇ Automotive Group, Inc., by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇,
III to Sunbelt Automotive Group, Inc. Sunbelt delivered to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇, III at closing a promissory note in the principal amount of
$4,000,000.00 which contains cross-default provisions with the Sublease. Tenant
hereby consents to and approves the promissory note and agrees that a default by
Sunbelt thereunder shall constitute a default under the Sublease as provided
herein.
Section 12.14 AUTOMATIC TERMINATION. Should the Sunbelt IPO not close
by September 4, 1998, this Sublease shall be automatically canceled, shall be
null and void, and the Tenant shall have no other rights hereunder.
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IN WITNESS WHEREOF, the Landlord has caused this Sublease Agreement to
be executed in its corporate name, has caused its corporate seal to be hereunder
affixed, and has caused this Sublease Agreement to be attested, all by its duly
authorized officers, and the Tenant and the Guarantor have caused this Sublease
Agreement to be executed in their respective corporate names, have caused their
respective corporate seals to be hereunder affixed, and have caused this
Sublease Agreement to be attested, all by their respective duly authorized
officers, in three (3) counterparts, each of which shall be deemed an original,
and the parties hereto have caused this Sublease Agreement to be effective as of
August 1, 1998.
▇▇▇ LEASING, INC.
"Landlord"
By:
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Attest:
--------------------------
--------------------------------------
Witness
--------------------------------------
Notary Public, State of Georgia
JAY AUTOMOTIVE GROUP, INC.
"Tenant"
By:
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Attest:
--------------------------
--------------------------------------
Witness
--------------------------------------
Notary Public, State of Georgia
[Signatures Continued on Next Page]
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SUNBELT AUTOMOTIVE GROUP, INC.
"Guarantor"
By:
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Attest:
--------------------------
--------------------------------------
Witness
--------------------------------------
Notary Public, State of Georgia
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