LEASE AGREEMENT

 

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                                                                   EXHIBIT 10.55

 

                                 LEASE AGREEMENT

 

      THIS AGREEMENT made and entered into this 26 day of March 1992, between

REALTY FOUR, a Georgia General Partnership of Thomas County, Georgia,

hereinafter called Lessor, and SIMMONS OUTDOOR CORPORATION, a Delaware

Corporation, hereinafter called Lessee,

 

                                  WITNESSETH:

 

PREMISES LEASED: That Lessor has leased and by these presents does grant,

demise, and lease unto Lessee the following described premises:

 

      Located in the City of Thomasville, Thomas County, Georgia, in Plantation

      Oak Industrial Park, a 6 acre lot, more or less, bounded on the north by

      Plantation Oak Drive, on the west by a 40 foot utility easement deeded to

      the City of Thomasville paralleling the new west bypass, on the east by

      the yet-to-be named street between the Heilig-Meyers building and subject

      property and on the south by a line constructed by measuring 500 feet

      south along the easterly property line from the intersection of subject

      property lines at the new street and Plantation Oak Drive to a point,

      thence westerly at a right angle to the easterly property line to the

      intersection of the westerly boundary of subject property. Additionally,

      Lessor shall have an option to purchase an additional 400 feet of land to

      the south of subject property for a period of 8 years, the same being the

      original term of this lease, for the purpose of extending the building

      described by the attached specifications and to be built upon subject

      property.

 

TERM AND RENTAL: TO HAVE AND TO HOLD the same for a term of eight (8) years,

commencing on the fifteenth day of August, 1992 or upon completion sufficient

for occupancy. Construction work on the building is to begin by April 1, 1992,

with a completion date no later than September 15, 1992.

 

Lessee shall pay Lessor or its assigns a monthly rental of TEN THOUSAND ONE

HUNDRED DOLLARS ($10,100.00) to be paid on or before the first day of each month

by Lessee in advance to Lessor for the first four years of this lease. This base

rental shall be adjusted to increase or decrease by 60% of the change in the

consumer price index over the previous four year term of the lease to determine

the new monthly rental for the following four years. Lessee may renew this lease

for four additional four year terms at a new lease amount to be computed as

follows: the base rental at the end of the preceding period shall be adjusted to

increase or decrease by 60% of the change in the consumer price index over the

previous term of the lease to determine the new monthly rental for the following

four year term. Lessee shall give written notice to Lessor of the exercise of

this option not

 

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                        LEASE AGREEMENT continued, page 2

 

less than ninety days prior to the expiration of the term hereof and such option

shall be exercisable only in the absence of material default uncured after

notice.

 

It is further mutually agreed between the parties as follows:

 

1.     DESCRIPTION OF LESSOR'S WORK: Lessor, at its sole cost, agrees to purchase

and prepare land and construct the buildings through completion, certification

and occupancy, in complete accordance with plans and specifications approved by

Lessee and Lessor prior to commencement to construction. Said approved plans and

specifications are herewith specifically made a part of this lease and a copy

thereof is attached. Lessee shall be required to accept occupancy of leased

premises upon completion of all the improvements according to plans and

specifications by Lessee.

 

2.     TITLE AND ENJOYMENT: Lessor covenants that it will have a fee simple title

to the demised premises but it is understood, however, that Lessor will encumber

the land in borrowing money necessary to effect construction of the improvements

herein contemplated and the rights of Lessee shall be subordinate and subject to

the rights of the holder of such security instrument as shall be executed by

Lessor securing the loan, subject to lender's agreement not to disturb Lessee's

quiet enjoyment of the premises. In order for Lessor to obtain the requisite

financing for the contemplated construction, Lessee agrees to provide

satisfaction to Lessor's bank that lease payments will be made for the full term

of this lease, or any other form of guaranty sufficient for Lessor to obtain the

requisite financing.

 

Lessor agrees to protect the rights of Lessee to the free and unrestricted use

and occupancy of the demised premises and does hereby agree that it will notify

Lessee of the amount of the loan which may be secured in the manner aforesaid,

the terms of such loan and that Lessee may pay all rental payments directly to

the holder of such security instrument during such period of time as Lessor

shall default in the payment of any installment which shall become due under the

terms of such security instrument.

 

3.     TAXES AND INSURANCE: Lessor shall pay ad valorem taxes and take advantage

of all discounts offered for prompt payment of same, and upon presentation of

the paid tax bills, Lessee shall reimburse Lessor for said ad valorem taxes.

Lessee shall pay property insurance premiums during the term of this lease in

such amount that the property is insured for 10O% of its replacement value or

highest insurable value if less than 100%. During the term of this Lease, Lessee

shall procure and maintain in full force and effect public liability insurance,

naming Lessor and Lessee as co-insureds covering claims for personal injury or

property damage occurring on or about the Leased premises under a policy of

general liability insurance with limits of not less than $1,000,000.00 with

respect to all occurrences during each calendar year. Lessor and Lessee shall

provide each other with

 

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                        LEASE AGREEMENT continued, page 3

 

certificates of all insurance policies required to be procured and maintained by

them hereunder. All such policies shall provide that the insurers will not

cancel or change the insurance coverage afforded thereby without first giving

Lessor and Lessee ten (10) days prior written notice. Lessee shall be

responsible, at its expense, for insuring all its furniture, trade fixtures,

equipment, and other personal property of Lessee located on the Leased Premises.

 

4.     USE OF PREMISES: Premises shall be used by Lessee for the purpose of

warehousing and distribution of sports optical equipment and related activities,

but Lessee shall have the right to use the Leased Premises for any other lawful

purposes that do not create a nuisance, upon the written consent of the Lessor,

which consent shall not be unreasonably withheld. Lessee may use the Leased

Premises for outdoor storage, provided such storage area is adequately screened

from view and provided further that such storage is permitted by applicable

laws, codes and regulations and does not create a nuisance. Lessor represents to

Lessee that the Leased Premises is zoned to permit the use thereof as a sports

optical warehousing and distribution facility. Lessee covenants not to knowingly

use the premises for illegal purposes nor in such manner as to violate any

applicable and valid law, rule or regulation of any governmental body, and to

occupy and use said premises in a careful, safe and proper manner, and not

permit waste thereon.

 

5.     REPAIRS BY LESSOR: Lessor covenants and warrants leased premises will be

well built, properly constructed, structurally safe and sound, and suitable and

fit for Lessee's use. If the roof, exterior walls or other structural portions

of the building shall need or require repairs not caused by fire or other

casualty for which the Lessor is insured and not caused by the negligence or

fault of the Lessee, Lessor, after receiving notice from Lessee shall make such

repairs at the Lessor's expense.

 

6.     REPAIRS BY LESSEE: Lessee will, at its own expense, except for those items

covered under Lessor's insurance policy, maintain the building and equipment

including but not limited to the following: the heating and air conditioning

equipment, replacing all filters on a regular and timely basis, canopies,

exterior and interior doors, plate glass, electrical lighting and wiring, both

interior and exterior, drainage pipes for any utilities or fixtures, gutters and

downspouts, floor covering and redecorate the interior of the premises whenever

it deems same necessary. Lessor shall be responsible for the maintenance of the

roof, but shall not be held responsible for any loss or damage incurred as a

result of any defect or leakage in same.

 

At the expiration, or any prior termination, of the original or any renewal term

of this lease, Lessee will surrender the premises to Lessor in as good condition

as received, except for ordinary wear and tear, and damage by fire or other

casualty.

 

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                        LEASE AGREEMENT continued, page 4

 

7.     REMODELING: Lessee shall have the right and privilege to make from time to

time any alterations, changes and improvements, at its own expense, which Lessee

considers necessary to adapt the premises to the changing needs of Lessee's

business. However, Lessee shall obtain prior approval, which shall not be

unreasonably withheld, of Lessor to any such alterations, changes and

improvements which will affect the structural design of the premises.

 

8.     FIXTURES AND EQUIPMENT: Lessee nay install and operate in and upon the

premises such trade fixtures, equipment, machinery and appliances as it shall

consider necessary to the conduct of its business on the premises, provided all

laws, rules and regulations of governmental bodies with respect to installation

and operation thereof shall be fully and completely complied with by Lessee. On

the expiration of this lease, or on the expiration of any extension, renewal, or

sooner termination thereof, Lessee may remove all or any part of such fixtures,

equipment, machinery and appliances installed on the premises by Lessee,

provided, however that Lessee shall repair any damage to the premises which may

be caused by such installation, operation or removal. No electrical wiring or

fixtures shall be removed.

 

9.     ASSIGNMENT AND SUBLETTING: Lessee may transfer and assign this lease or

sublet the premises with the permission, which shall not be unreasonably

withheld, of Lessor, subject to any existing restrictions; but in such event,

Lessee shall remain liable for all rents and obligations of Lessee hereunder for

the remainder of the term of this lease.

 

10.    LESSOR'S LIABILITY FOR DAMAGE: Lessor shall not be liable for any damage

to Lessee's fixtures or merchandise caused by fire or other insurable hazards,

regardless of the cause thereof, and Lessee hereby releases Lessor of any and

all liabilities for such damage.

 

11.    DESTRUCTION OF OR DAMAGE TO PREMISES: If there occurs any fire, explosion

or other casualty to the leased premises or any portion thereof resulting in

damage or destruction to the leased premises, Lessee shall promptly notify

Lessor in writing of such damage and Lessor shall thereupon cause the damage to

be repaired forthwith unless the lease is terminated as hereinafter provided. If

the leased premises or any part thereof shall be rendered untenantable for

Lessee's intended use as a result of such damage, Lessee's obligation to pay

rent hereunder shall be reduced and abated in proportion to the amount of gross

rentable area of the premises rendered untenantable as the result of such

casualty. If premises are to be rebuilt or repaired Lessor agrees that such

rebuilding or repairs shall be complete within 150 days from date of said

destruction. Said rent reduction shall commence on the date such damage occurs

and end on the date the leased premises are restored and again ready for

occupancy. In the event the leased premises are damaged to the extent of more

than fifty percent (50%) of the replacement cost thereof, either Lessor or

Lessee may elect to terminate this lease with within thirty (30)

 

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                        LEASE AGREEMENT continued, page 5

 

days from the date of such damage by giving written notice thereof to the other

and thereupon this lease shall immediately terminate and Lessee shall have no

further obligation hereunder other than to pay the rent accrued to the date of

such damage.

 

12.    PERMITS, UTILITIES, ETC.: Lessee agrees to pay all license, permit fees

and occupational taxes, all expenses for gas, electricity, water, fuel and all

other utilities used on or furnished to Leased Premises during the term of this

Lease.

 

13.    DAMAGE TO PERSONS: Lessee shall be responsible for any and all causes of

action, claims or demands for damages for personal injuries, or for loss, damage

or injury to property, and any and all other causes of action, claims or demands

of every kind and character, caused by or arising from the use, occupancy or

operation of the leased premises by Lessee, or Lessee's agents, servants,

employees, invites or licensees, and Lessee agrees fully to indemnify and save

harmless Lessor against liability for any and all such causes of action, claims

and demands whatsoever, and will at its own expense, defend any and all actions

or proceedings brought against Lessor on account of any such causes of action,

claims or demands. Provided, however, that nothing contained in this paragraph

of this lease shall affect in any way or is intended to affect in any way

contract made by Lessor with any insurance carrier for the purpose of protecting

Lessor or insuring Lessor against any and all such causes of action, claims or

demands, damages or injuries.

 

14.    NO ESTATE IN LAND: This contract shall create the relationship of landlord

and tenant between Lessor and Lessee. Lessee has only a usufruct, not subject to

levy and sale and non-assignable except as herein provided.

 

15.    RIGHTS AND POWERS: All rights, powers and privileges conferred hereunder

upon parties hereto shall be cumulative but not restrictive to those given by

law.

 

16.    HOLDING OVER: If Lessee remains in possession after expiration of the

term hereof, with Lessor's acquiescence and without any distinct written

agreement of parties, Lessee shall be tenant at will; and there shall be no

renewal of this lease by operation of law.

 

17.    SURRENDER OF PREMISES: At termination of this lease from any cause, Lessee

shall surrender premises and keys thereof to Lessor in same condition as at

commencement of term, natural wear and tear only excepted.

 

18.    SERVICE OF NOTICE: Lessee hereby appoints as its agent to receive the

service of all dispossessory or distraint proceedings and notices thereunder,

and all notices required under this lease, the person in charge of said premises

at the time, or occupying premises; and if no person in charge or occupying the

same, then such service or notice may be made by attaching the

 

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                         LEASE AGREEMENT continued, page 6

 

same on the main entrance to premises, A copy of all notices under this lease

shall also be sent to Lessee's last known address, if different from premises,

which last known address shall be as follows:_____________________________, or

at such other address as Lessee may from time to time designate to Lessor in

writing. Any notice to Lessee shall also be with a copy to Law Offices of J.

James Donnellan, III. Notice to Lessor may be sent to Lessor at P. O. Box 828,

Thomasville, Georgia 31799, or at such other address as Lessor may from time to

time designate to Lessee in writing.

 

19.    REMEDIES OF LESSOR IN EVENT OF DEFAULT BY Lessee: In the event Lessee

shall default in the payment of any monthly rental herein provided for, and such

default shall continue to fifteen (15) days after Lessor shall have notified

Lessee in writing of the existence of such default, or if Lessee shall default

in the performance of any of the other covenants, promises, and agreements

herein set forth and contained for Lessee to keep and perform, and such default

shall continue for thirty (30) days after Lessor shall have notified Lessee in

writing of the existence of such default; or if Lessee is adjudicated a

bankrupt; or if a permanent receiver is appointed for Lessee's property,

including Lessee's interest in leased premises, and such receiver is not removed

within sixty (60) days after written notice from Lessor to Lessee to obtain such

removal; or if, whether voluntarily or involuntarily, Lessee takes advantage of

any debtor relief proceeding under any present or future law whereby the rent,

or any part thereof, is or is proposed to be reduced or payment thereof

deferred; or if Lessee makes an assignment for benefit of creditors; or if the

leased premises of Lessee's effects or interest therein should be levied upon or

attached under any process against Lessee not satisfied or dissolved within

thirty (30) days after written notice from Lessor to Lessee to obtain

satisfaction or dissolution thereof; then, and in any of the said events (said

events being hereinafter referred to as events of default) Lessee shall be

deemed to have breached this lease agreement and Lessor shall have the right at

its option either to:

 

(a)    Enter upon and take possession of said leased premises, as Lessee's agent

and without terminating this lease and re-rent the premises at the best price

obtainable by reasonable effort with or without advertisement for any term

Lessor deems proper. Lessor shall notify Lessee of the proposed terms of the

re-rental and unless within fourteen (14) days after the mailing of said notice

Lessee produces an acceptable tenant willing to rent immediately for the same

term at a better price than thus negotiated, Lessee shall be conclusively bound

by Lessor's terms and rent. Lessee shall thereupon become and thereafter be

liable and indebted to Lessor for, and upon demand, then or from time to time

thereafter made, shall pay to Lessor the difference between the amount of the

rent herein specified and the amount of rent which shall be collected and

received from the demised premises for each month during the remainder of the

term herein provided

 

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                        LEASE AGREEMENT continued, page 7

 

remaining after taking possession thereof by the Lessor, or

 

(b)    Forthwith cancel and terminate this lease by notice in writing to Lessee;

and if such notice shall be given all rights of Lessee to the use and occupancy

of said leased premises shall terminate as of the date set forth in such

notice, and Lessee will at once surrender possession of the premises to the

Lessor and remove all Lessee's effects therefrom, and Lessor may forthwith

re-enter the premises and repossess itself thereof. No termination of this lease

prior to the normal expiration thereof shall affect Lessor's right to collect

rent for the period prior to termination thereof.

 

20.    PLANS AND SPECIFICATIONS: Lessor agrees to construct the building

additions in accordance with the plans and specifications attached hereto.

Lessee hereby covenants that it has examined said plans and specifications,

approved the same and is aware of the contents thereof, the same being the plans

and specifications prepared by Lessor. Lessee agrees to accept the premises when

completed in accordance with said plans and specifications.

 

21.    PROVISION FOR ADDITIONAL SPACE: Lessor agrees to construct additional

warehouse space complete with 5" thick concrete floor, roof, walls, fire

sprinkler system, lighting, fire and security alarm, insulation, ridge vents and

liner panels all in accordance with the specifications which are a part of this

lease agreement in increments of 6,000 square feet with 12,000 square feet being

the minimum amount of additional space added at one time for a base cost

increase in the annual rental of $1.35 per square foot during the first four

year term of this lease. After the first four year term the base cost of

additional space shall be increased or decreased by 60% of the change in the

consumer price index the same as the rental for the original improvements. Each

time the size of the building is increased, the lease shall be renewed for a new

full four year term and the rent adjusted to increase or decrease by 60% of the

change in the consumer price index over the previous term of the lease.

 

22.    PROVISIONS FOR TEMPORARY SPACE: In the event that leased premises are not

ready for occupancy by Lessee by September 15, 1992, Lessor shall provide at its

expense suitable temporary warehouse space for use by Lessee until such time

building is ready for occupancy.

 

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                        LEASE AGREEMENT continued, page 8

 

23.    MISCELLANEOUS PROVISIONS: This Lease shall be construed and interpreted

under the laws of the State of Georgia. This Lease may be executed

simultaneously in two or more counterparts, each of which shall be deemed an

original, but all of which shall constitute one and the same instrument. The

headings in this Lease Agreement shall not in any way affect its meaning or

interpretation.

 

No change or modification of this lease shall be valid unless made in writing

between the parties.

 

This Lease Agreement shall be binding upon and shall inure to the benefit of the

parties hereto and their respective successors and assigns; provided, however,

that the provisions of this paragraph shall not be construed to allow any

assignment of this Lease by Lessee without the requisite written consent of

Lessor.

 

In witness whereof Lessor and Lessee have hereto set their hands and affixed

their seals the date first above written.

 

Signed, sealed and delivered by Lessor in the presence of us in Thomas County,

Georgia:

 

/s/ Gail C. Murphy                               /s/ Harry M. Tomlinson, Partner

------------------------                         --------------------------------

Notary public                                    Lessor

 

NOTARY PUBLIC, GEORGIA

RESIDING IN THOMAS COUNTY

MY COMMISSION EXPIRES APRIL 30, 1999

 

Signed, sealed and delivered

by Lessee in the presence of

us in________ County,________

 

/s/ Gail C. Murphy                               /s/ Frederick Cofe

------------------------                         --------------------------------

Notary Public                                    Lessee, President

                                                Attest:

 

NOTARY PUBLIC GEORGIA

RESIDING IN THOMAS COUNTY

MY COMMISSION EXPIRES APRIL 30, 1999

                                                /s/ Tim Robinson

                                                --------------------------------

                                                 Secretary

 

                                                Corporate seal

 

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                           BUILDING SPECIFICATIONS for

                 60,000 square Foot Distribution Warehouse with

                           6000 Square Foot Office in

                              THOMASVILLE, GEORGIA

                                       for

                             SIMMONS OUTDOOR CORP.

                                   March, 1992

 

      DESCRIPTION OF WORK: Provide a six acre site with option to purchase an

additional four acres complete with 240 foot wide by 250 foot long by 20 foot

eaves height distribution warehouse complete with four 9' x 10' dock doors, one

14' x 14' grade level door, 80 foot x 75 foot office, restrooms and warehouse

manager's office in warehouse, complete with paving, walks, fencing, drives,

fire sprinkler system, electronic security system, fencing and landscaping as

more fully described herein and on the attached plans.

 

      BUILDING DESCRIPTION: The warehouse building shall be a pre-engineered

metal building with galvalume roof and painted wall panels. Interior frames

shall be spaced at 25 foot intervals with steel pipe columns spaced every 60

feet to provide support for the main frames. The office shall have wood framed

walls and metal framed roof with a metal roof the same as the main warehouse.

Exterior office walls shall be brick veneer with vertical facade above. All

office windows shall be double 3' x 4'-4" fixed glass insulated bronze aluminum

units.

 

      FLOOR AND FOUNDATION: Foundation design shall be based on a minimum soil

bearing capacity of 3000 pounds per square foot and shall be a monolithic

slab-on-grade type. The concrete for the floor shall have a minimum strength in

compression of 3000 pounds per square inch. The warehouse floor shall be five

inches thick and be reinforced wi