STATE OF
North Carolina LEASE
----- COUNTY OF MECKLENBURG.
THIS LEASE AGREEMENT, Made and entered into in duplicate originals as of the 23rd day of October, 1979, by and between BRUTON SMITH (hereinafter called "Landlord") and wife BONNIE SMITH, of Mecklenburg County, North Carolina, and TOWN AND COUNTRY FORD, INCORPORATED, a North Carolina corporation (hereinafter called "Tenant");
W I T N E S S E T H :
The Landlord, for and in consideration of the rents, covenants, agreements and stipulations hereinafter mentioned, reserved and contained, to be paid, kept and performed by the Tenant, has leased, let and demised, and by these presents does lease, let and demise unto the said Tenant, and the Tenant hereby agrees to lease, let and demise and take upon the terms and conditions which hereinafter appear, the following described premises, to-wit:
The land this day leased and demised (hereinafter called the "demised
premises") is shown on plat of survey for BRUTON SMITH containing 12.484
acres prepared by R. B. Pharr & Associates, N.C. R.L.S., dated September 6,
1979, and more particularly described on Addendum A attached hereto and by
reference thereto made a part hereof.
TO HAVE AND TO HOLD all and singular the demised premises unto the Tenant for a term commencing December 1, 1979 and terminating at 12:00 midnight on the 31st day of October, 2000.
This Lease is made subject to the following further covenants, agreements and terms which are mutually agreed upon by and between the parties hereto, to-wit:
1. ANNUAL RENTAL. The annual rental for the aforesaid demised premises, buildings and appurtenances during the term of this lease shall be the sum of Four Hundred Nine Thousand, Two Hundred and no/100 Dollars ($409,200.00), which
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Tenant covenants and agrees to pay to the Landlord, its successors and assigns, in monthly installments of Thirty-four Thousand One Hundred and no/100 Dollars ($34,100.00) each on the first day of each and every month during the term of this Lease. All rent shall be paid to Landlord at the address to which notices to Landlord are given as specified in paragraph 20 hereof.
2. TAXES, INSURANCE, REPAIRS AND MAINTENANCE.
A. Taxes. The Tenant shall pay all taxes and assessments upon the
demised premises, and upon the buildings and improvements thereon, which
are assessed during the Lease term or any extension thereof. All taxes
assessed prior to but payable in whole or in installments after the date of
this Lease Agreement, and all taxes assessed during the term but payable in
whole or in installments after the expiration of the Lease term, or any
extension thereof, shall be adjusted and prorated, so that the Landlord
shall pay its prorated share for the period prior to the date of this Lease
Agreement and for the period subsequent to the expiration of the Lease
Term, or any extension thereof, and the Tenant shall pay its prorated share
in accordance herewith.
B. Property Insurance. The Tenant at Tenant's cost shall maintain in
full force and effect throughout the Lease term, or any extension thereof,
on the buildings and other improvements located upon the demised premises,
(1) policy or policies of standard fire and extended coverage
insurance, with vandalism, malicious mischief and tornado
endorsements, to the extent of at least ninety per cent (90%) of
full replacement value, and
(2) policy or policies of rental and rental value insurance coverage
in an amount at least adequate to cover six (6) months of
principal and interest installments due on the indebtedness
secured by the first lien deed of trust upon the demised premises
together with one-twelfth (1/12) of the annual real estate taxes
and insurance expenses incurred for a period of at least twelve
(12) months.
All such insurance policy or policies required by this Lease Agreement
shall be in such form, in such amounts and with such companies as shall be
satisfactory to and approved by Landlord and the holder of the indebtedness
secured by first lien deed of trust upon the demised premises. Tenant shall
provide such insurance as it desires for its property located upon the
demised premises.
C. Indemnity and Liability Insurance. The Tenant shall indemnify and
save harmless the Landlord from and against any and all liability,
penalties, damages, expenses and judgments by reason of any injury or claim
of injury to persons or property arising out of the alleged negligence of
the Tenant, its agents, employees and invitees in the use, occupation or
control of the demised premises by
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the Tenant. The Tenant agrees to keep in force such insurance policy or
policies in such form and with such companies as shall be satisfactory to
and approved by Landlord and the holder of the indebtedness secured by
first lien deed of trust upon the premises, covering public liability,
claims for personal injury, bodily injury, including death, and property
damage, under a policy or policies of general public liability insurance,
with coverage limits of not less than Five Hundred Thousand Dollars
($500,000) per person and $1,000,000 per occurrence, and property damage
limits of not less than $500,000. The Tenant shall be obligated to defend
any suit or claim, whether justified or not, brought against the Landlord
by any person whatever, arising out of the use of the premises by the
Tenant, and should the Tenant fail to defend such suit or claim upon
request by the Landlord, then the Landlord may defend said suit or claim at
the expense of Tenant.
D. Repairs and Maintenance. Landlord shall, throughout the Lease term
or any extension thereof, maintain the outside walls of the buildings
located upon the demised premises. Tenant shall, throughout the Lease term
or any extension thereof, at its sole expense, keep and maintain any other
portions of the demised promises in good order and repair. Tenant shall
deliver up the said demised premises to the Landlord at the end of the
Lease term, or any extension thereof, or the said Lease's sooner
termination, in as good order and repair as the same is at the time of the
commencement of the Tenant's occupancy, damage or destruction by fire,
windstorm or other casualty and ordinary wear and tear excepted. Tenant
shall not be required to make repairs to outside walls unless the condition
necessitating the repairs was caused by Tenant, its employee(s) or its
invitee(s).
On default of the Tenant in making such repairs or replacements, the
Landlord may, but shall not be required to, make such repairs and
replacements for the Tenant's account, and the expense thereof shall
constitute and be collectible as additional rent.
E. Waiver of Subrogation. Notwithstanding anything to the contrary in
any other provisions of this Lease, Landlord and Tenant covenant and agree
that: (i) Each is hereby released from liability to the other on account of
any loss or damage occurring during the term of this Lease to the extent
that such loss or damage is covetable by insurance whether or not the same
is caused in whole or in part by Landlord or Tenant and whether or not
attributable to the negligence of Landlord or Tenant; and (ii) there shall
be no subrogation of any insurer; provided,
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however, that the mutual release of liability and provision for no
subrogation shall not be operative in any case where the effect thereof is
to invalidate any insurance coverage or increase the cost thereof, but each
party procuring insurance under this Lease shall be obligated to use its
best efforts to obtain policies permitting waiver of subrogation without
additional cost, and if such waiver causes an increase in cost,
nevertheless to procure such waiver if the other party agrees to pay any
increase in cost.
3. FIRE OR OTHER CASUALTY LOSSES -- RESTORATION OF PREMISES. In case of damage to or destruction of the demised premises by fire, windstorm or other casualty to such an extent as to render them untenantable, Landlord may, by written notice to the Tenant given within thirty (30) days after such damage or destruction, (i) elect to terminate the Lease, or (ii) elect to repair or rebuild the improvements. If the damage is not such as to render the premises untenantable or if the Landlord elects to rebuild, the Landlord at its expense shall repair the damage with reasonable dispatch; and if the damage has rendered the demised premises untenantable, in whole or in part, there shall be an abatement and apportionment of the annual rental until the damage has been repaired to the extent that the Tenant's activities are curtailed in the damaged portion of the building complex upon the demised premises. In determining what constitutes reasonable dispatch, consideration shall be given to delays caused by strikes, adjustments of insurance, and other causes beyond the Landlord's control.
4. EMINENT DOMAIN. If the demised premises, or any part thereof, shall be taken in any proceeding by the public authorities by condemnation, threat of condemnation, or otherwise, for any public or quasi-public use, Tenant shall be entitled to an abatement of the rent hereinabove reserved to the Landlord based upon the extent to which such taking causes a curtailment of the Tenant's business and activities upon the demised premises. If twenty-five percent (25%) of the parking lot area or ten percent (10%) of the total improved building area of the demised premises shall be taken in any proceeding by the public authorities by condemnation, threat of condemnation or otherwise, for any public or quasi-public use, the Tenant may at its option forthwith cancel this Lease as of the date upon which such taking shall become finally effective. All damages for the taking of any portion
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of the demised premises shall belong to the Landlord, without prejudice, however, to such rights, if any, as the Tenant may have to claim from the condemning authority any damage suffered by it to its leasehold interest or leasehold improvements as the result of such taking.
5. ASSIGNMENT OR SUBLETTING. Tenant may not sublet the demised premises or any portion thereof or assign this Lease for the whole or any part of the term hereof without the consent of the Landlord, which consent may not be unreasonably withheld. In the event of any such subletting or assignment, Tenant shall, nevertheless, be and remain bound for the payment of all rentals as and when each shall become due and payable hereunder and for the carrying out and performing of all of the other covenants and agreements on the part of the Tenant to be done and performed hereunder, unless Landlord shall specifically agree to the contrary.
6. USE OF PREMISES; COMPLIANCE WITH REGULATIONS, ORDINANCES, ETC. Tenant agrees that it will not use the demised premises, nor will it suffer or permit the same to be used, for any other purpose other than an automobile sales and service establishment, including but not limited to, the sales and service of all types of motor vehicles, tractors, farm machinery and equipment, the sale of such merchandise as is sold ordinarily by an automobile dealer, and other purposes incidental to an automobile sales and service establishment, or for any other lawful purpose which the Landlord has approved in writing and which approval shall not be unreasonably withheld. The Tenant shall, throughout the Lease term or any extension thereof, and at no expense whatsoever to the Landlord, promptly comply, or cause compliance, with all laws and ordinances and the orders, rules, regulations and requirements of all Federal, State, County and municipal governments, and appropriate departments, commissions, boards and officers thereof, necessitated by Tenant's occupancy and use of the demised premises. Tenant shall not be required to make structural changes in the premises in compliance with this paragraph unless necessitated by action of Tenant, its employee(s) or invitee(s); but Landlord may terminate this Lease on thirty (30) days' notice if Tenant's use of the property would necessitate any structural changes and Tenant refuses to make them.
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7. UTILITIES CHARGES AND PERMITS. The Tenant agrees to pay or cause to be paid all charges for gas, water, sewer, electricity, light, heat, power, telephone or other communication service or other utility or service used, rendered or supplied to, upon or in connection with the demised premises throughout the Lease term or any extension thereof, and to indemnify the Landlord and save Landlord harmless against any liability or damage on such account. The Tenant expressly agrees that the Landlord is not, nor shall Landlord be, required to furnish the Tenant or any other occupant of the demised premises, during the Lease term or any extension thereof, any water, sewer, gas, heat, electricity, light, power or any other facilities, equipment, labor, materials, or services of any kind whatsoever.
8. INDEMNITY PROVISIONS. The Tenant covenants and agrees, at its sole cost and expense, to indemnify and save harmless the Landlord against and from any and all claims by or on behalf of any person, firm or corporation, arising from the conduct or management of or from any work or thing whatsoever done in or about the demised premises during the Lease term or any extension thereof, and further to indemnify and save the Landlord harmless against and from any and all claims arising from any condition on the demised premises, or arising from any breach or default on the part of the Tenant in the performance of any covenant or agreement on the part of the Tenant to be performed, pursuant to the terms of this Lease, or arising from any act or negligence of the Tenant, or any of its agents, contractors, servants ...