LEASE
By and Between
XXXXXX X. XXXXXX XX and XXXXXX X. XXXXX, XX.,
as Lessor
And
INFINITI OF CHATTANOOGA, INC.,
as Lessee
TABLE OF CONTENTS
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Page
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RECITALS ................................................................... 1
1. Description and Term ................................................... 1
(a) Street Address ..................................................... 1
(b) Description ........................................................ 1
(c) Term ............................................................... 1
(d) Possession ......................................................... 1
2. Rent ................................................................... 2
3. Covenant to Pay Rent and Use ........................................... 2
4. "For Sale" and "To Let" Signs .......................................... 2
5. Acceptance of Premises, Maintenance
and Improvements ...................................................... 3
6. Governmental Requirements .............................................. 3
7. Parking Area and Driveways ............................................. 3
8. Permits ................................................................ 3
9. Insurance .............................................................. 4
10. Condemnation ........................................................... 5
11. Covenant on Proceeds ................................................... 6
12. Defaults ............................................................... 6
13. Electrical Wiring ...................................................... 7
14. Waiver of Requirements ................................................. 7
15. Notices ................................................................ 8
16. Right to Sublease or Assign ............................................ 8
17. Surrender .............................................................. 8
18. Estoppel Certificates .................................................. 8
19. Construction of Lease .................................................. 8
20. Captions ............................................................... 9
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21. Taxes ................................................................. 9
22. Lease Acceptance ...................................................... 9
23. Binding Upon Successor ................................................ 9
24. Attorney Fees ......................................................... 9
25. Definition of Lessor; Liability of
Lessor Limited....................................................... 9
SIGNATURES
EXHIBIT A Property Description
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LEASE
THIS LEASE by and between XXXXXX X. XXXXXX XX and XXXXXX X. XXXXX, XX.,
hereinafter collectively called the "Lessor," and INFINITI OF CHATTANOOGA, INC.,
a Tennessee corporation, hereinafter called the "Lessee."
W I T N E S S E T H:
WHEREAS, the Lessee herein desires to lease from Lessor and the Lessor
desires to lease to the Lessee certain premises hereinafter described.
NOW, THEREFORE, in consideration of the covenants, terms, and conditions
hereinafter set forth, Lessor and Lessee agree as follows:
1. Description and Term. In consideration of the rents hereinafter reserved
and all terms, conditions, covenants, and agreements hereinafter contained, the
Lessor hereby leases and demises to the Lessee, and the Lessee hereby hires,
leases and takes from the Lessor the following-described property (hereinafter
called the "Premises"), to wit:
(a) Street Address: 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
(b) Description. The Premises, the subject of this Lease between
Lessor and Lessee, is the land and buildings located on the real property
more particularly described on Exhibit A attached hereto.
(c) Term. The term of this Lease shall be twenty-six (26) years from
July 1, 1991 until June 30, 2017.
(d) Possession. Lessee shall have the right to immediate possession of
the Premises. Lessee's possession, however, carries with it all the
obligations of Lessee under this Lease, including all covenants and
conditions and all responsibilities.
2. Rent. The annual rental for the first three (3) years of the term of
this Lease shall be One Hundred Eighty-Three Thousand Dollars ($183,000.00). The
Lessee agrees to pay said rent in lawful money of the United States in equal
monthly installments of Fifteen Thousand, Two Hundred Fifty Dollars ($15,250.00)
in advance of the first day of the Lease term beginning July 1, 1991 and
thereafter upon the same day of each successive month during the term, at the
office of the Lessor or at such other place as Lessor may designate. Upon the
expiration of the first three (3) years of the term of this Lease, the rent
shall be adjusted by an amount equal to the increase, if any, in the debt
service amount pay under Lessor's loan (or any renewal, extension, modification
or replacement thereof) for the acquisition of the Premises. Lessor shall notify
Lessee of the amount of such rent adjustment, and said rent shall be paid in
equal monthly installments in advance of the first day of each month for the
remainder of the term of this Lease.
3. Covenant to Pay Rent and Use. In consideration of the foregoing letting,
the Lessee does hereby covenant and agree as follows:
(a) To pay rent as aforementioned and herein provided; and
(b) Not to use and not to permit or suffer the use of the Premises for
illegal or unlawful purposes, but for an automobile dealership for the
purpose of selling and servicing new and used automobiles.
4. "For Sale" and "To Let" Signs. During the last six (6) months of the
term of this Lease or any renewals thereof, unless the Lessee has given a notice
to renew pursuant to paragraph 3 of this Lease, the Lessor may maintain "To Let"
or "For Sale" signs upon the Premises and may freely exhibit the Premises to
any prospective tenants and/or purchasers; provided, however, that Lessor has
notified Lessee of such exhibition and it occurs during reasonable times after
normal business hours or as otherwise agreed.
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5. Acceptance of Premises Maintenance and Improvements. At the commencement
of the term, the Lessee accepts the land and buildings in their existing
condition. No representation, statement or warranty, express or implied, has
been made by or on behalf of the Lessor as to such condition, or as to the use
that may be of such property. In no event shall the Lessor be liable for any
defect in such property or for any limitation in its use.
Lessor shall have no further responsibility for maintenance or repairs of
the Premises after the beginning of the term of this Lease. Lessee agrees to
make all interior and exterior repairs and/or improvements to the buildings at
its own expense and to reasonably maintain the Premises for the term of the
Lease. Lessee shall at the end of the Lease term, or any renewal thereof, return
the Premises to the Lessor in as good a condition as when the Lease term began,
excepting damage caused by fire or other catastrophe not resulting from Lessee's
gross negligence and excepting ordinary wear and tear. Lessee shall make no
repairs, alterations or improvements to the Premises which would affect the
structural integrity of the Premises without first requesting permission to do
so from the Lessor and obtaining written approval from Lessor; provided,
however, such written approval shall not be unreasonably withheld.
6. Governmental Requirements. The Lessee agrees that it shall comply with
all requirements of all laws, orders, ordinances, and regulations which shall
impose any duty upon the owner or occupant of the Premises.
7. Parking Area and Driveways. Lessee specifically covenants to Lessor and
agrees to maintain for the full term of this Lease, and any renewals thereof,
the driveways and parking areas which are a part of the Premises.
8. Permits. Any permits required from any governmental agency because of
the use of the Premises by the Lessee shall be secured by the Lessee and shall
be its sole obligation and the failure to obtain any such permit or the
revocation of any such permit at any time shall in no way alter the terms or
conditions of this Lease.
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9. Insurance.
(a) From the date hereof and until the end of the term of this Lease, or
any renewals thereof, the Lessee shall keep the Premises insured, at its sole
cost and expense, against claims for personal injury or property damage under a
policy of general public liability insurance, with limits of at least
$200,000/$500,000 for bodily injury, and $100,000 for property damage. Such
policies shall name the Lessor and the Lessee as the insureds. The public
liability policy or a certificate thereof shall be delivered to the Lessor
within twenty (20) days of the commencement of the term hereof and not less than
twenty (20) days before its expiration date during the term of this Lease, and
any renewals thereof.
(b) From the date hereof until the end of the term of this Lease, or any
renewals thereof, the Lessee shall keep its improvements which do not become
fixtures insured with fire and extended coverage insurance in an amount equal to
one hundred percent (100%) of the full replacement cost of said improvements.
Any policy providing such coverage shall contain the so-called special coverage
all-risk endorsement and the full replacement cost endorsement.
(c) From the date hereof until the end of the term of this Lease, or any
renewals thereof, Lessee shall keep the Premises insured at its sole cost and
expense for fire and extended coverage insurance. The policy providing such
coverage shall contain the so-called special coverage all-risk endorsement.
(d) All policies of insurance required to be maintained by the Lessee shall
name the Lessee and Lessor as the insureds as their respective interests may
appear.
(e) All insurance required to be maintained by the Lessee shall be effected
by valid and enforceable policies issued by insurers of recognized
responsibility, satisfactory to the Lessor.
(f) Lessor shall cause any insurance policy carried by them, and Lessee
shall cause each insurance policy carried by it insuring the fixtures of the
buildings and contents in the Premises to be written in such a manner so as to
provide that the insurance company will waive all right of recovery by way of
subrogation
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against Lessor or Lessee in connection with any loss or damage covered by any
such policies. Neither party shall be liable to the other for any loss or damage
caused by fire or any of the risks enumerated in standard extended coverage
insurance. If the release or either Lessor or Lessee, as set forth in the
preceding sentence of this paragraph, shall contravene any law with respect to
exculpatory agreements, the liability of the party in question shall be deemed
not released but shall be deemed secondary to the latter's insurer. Lessor shall
not do or permit to be done any act or thing upon the Premises that would
invalidate or be in conflict with fire insurance policies covering the land and
buildings.
10. Condemnation. The parties hereto agree that should the Premises, or
such portion thereof as will make the Premises unusable for the purposes herein
leased, be taken or condemned by competent authority for public or quasi-public
use, then this Lease shall, at the Lessee's option, terminate from the date when
possession of the parts so taken shall be required for the use and purpose for
which they had been taken. During any period in which there is less than
complete interference with the operation of the business in the Premises, then
the rent owing by the Lessee shall be abated in proportion to gross sales volume
at the Premises during such period of interference as it relates and compares to
the gross sales of the Premises during the last full month of operation of the
Premises prior to such interference. In the event that the means of ingress and
egress are in any way blocked or partially blocked as a result of any road
construction or other improvements, Lessor agrees to make an abatement of rent
during such period of construction or improvement. All compensation awarded for
such taking of the fee and leasehold shall belong to and be the property of the
Lessor; provided, however, that the Lessor shall not be entitled to any portion
of the award made to the Lessee or sublessee for loss of business and for the
cost of removal of any stock or other furnishings which have not become
fixtures. Lessee shall, notwithstanding anything above to the contrary, have the
right to participate as a party in any condemnation proceedings to the extent of
its leasehold interest in the property and any interest in improvements to the
property which have not vested in Lessor.
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11. Covenant on Proceeds. If all or part of the Premises shall be damaged
or destroyed by fire or other casualty, insured under the standard fire
insurance policy with so-called special coverage all-risk endorsement required
pursuant to paragraph lO(c), Lessor shall, except as otherwise provided herein,
repair and/or rebuild the same with reasonable diligence, but Lessor's
obligation hereunder shall not include the improvements or betterments applied
by any other party, unless such improvements or betterments become fixtures.
Nothing hereinabove contained shall impose upon Lessor any liability or
responsibility to replace or repair any property belonging to Lessee. This Lease
shall continue in full force and effect, but rent and additional rent, if any,
shall xxxxx from the date of such damage until ten (10) days after the Lessor
has repaired or restored said buildings in the manner and in the condition
provided in this section and notified Lessee of such fact. In the event that a
part of the Premises is rendered untenable or not suitable for use for the
conduct of Lessee's business therein, a just and proportionate part of the rent
shall be abated from the date of such damage until ten (10) days after Lessor
has repaired same and notified Lessee of such fact. Furthermore, in connection
with the above, Lessee shall receive a credit or refund, whichever is
appropriate, of any rent paid in advance.
Notwithstanding anything to the contrary contained in the preceding
paragraph, either party may at its option terminate this Lease on thirty (30)
days' notice to the other given within ninety (90) days after the occurrence of
any damage or destruction of (i) the destruction or damage is caused as a result
of a risk not covered by Lessee's insurance policies, (ii) the Premises are
damaged or destroyed during the last eighteen months of the Lease term or any
renewal term, or (iii) the Premises are completely destroyed or so damaged by
fire or other casualty as to render it unfit for use as a new automobile
dealership and the insurance coverage is insufficient in amount to pay in full
for necessary repairs and restoration and if either party deems such repairs or
restoration economically unfeasible.
12. Defaults. If Lessee should default in the payment of any rental or
monies due hereunder when due, or be in default of any covenant, agreement or
condition herein provided for, or abandon or vacate the Premises, or bankrupt or
make an assignment for benefit of creditors, or in the event a receiver is
appointed for Lessee,
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then, upon the occurrence of any one or more of such contingencies and after the
Lessee has been given notice by Certified Mail of such default, Lessee shall
have ten (10) days after the receipt of such notice within which to correct such
default or defaults, or if such default shall be of such nature that it cannot
be cured completely within such 10-day period, the Lessee shall commence to cure
such default or defaults within the 10-day period and shall thereafter proceed
with reasonable diligence and in good faith to remedy such default; otherwise,
this Lease may be cancelled at the option of the Lessor and all rights of the
Lessee terminated. In the event of such cancellation and termination, Lessor
shall have the immediate right or at any time thereafter to re-enter and take
possession of the Premises.
The Lessee shall be liable for the cost of seizure and repossession of the
Premises and reasonable attorneys' fees incurred as a result of the seizure and
repossession of the Premises.
Upon regaining possession of the Premises and upon re-entry therein and the
removal of all persons and property therefrom, Lessor shall relet the Premises
at a reasonable rental and upon such terms as may be reasonably obtained under
the circumstances and hold Lessee liable for any deficiency. Lessor is
authorized to make all necessary repairs, changes, and alterations in or to the
Premises for the new tenant.
13. Electrical Wiring. The signing of this Lease shall constitute
acceptance of the electrical wiring as it is with no further obligation upon the
Lessor to repair or improve said wiring, and specifically the Lessee's signature
to this Lease constitutes acceptance of the electrical wiring as suitable for
its use and purposes in the Premises and the Lessor shall have no obligation
whatsoever because of said wiring. It is further understood that the signature
of the Lessee hereto constitutes a waiver of any liability on the part of the
Lessor in case of a fire or other calamity caused by said electrical wiring.
14. Waiver of Requirements. No requirement whatsoever of this Lease shall
be deemed waived or varied, nor shall the Lessor's acceptance of any payment
with knowledge of any default or of Lessor's failure or delay to take advantage
of any default constitute a waiver of the Lessor's rights thereby nor of any
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subsequent or continued breach of any requirement of this Lease. All remedies
herein provided for shall be in addition to, and not in substitution for, any
remedies otherwise available to the Lessor.
15. Notices. All notices to be given under this Lease shall be in writing
and shall either be served personally or sent by Certified Mail to the address
of the parties below specified. The Lessor's address for notices shall be 000
Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxxx 00000. The Lessee's address for
notices shall be 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
16. Right to Sublease or Assign. Lessee shall not have the right to
sublease or assign the Premises in whole or in part.
17. Surrender. Upon the expiration or other termination of the term of this
Lease, or any renewals thereof, Lessee shall quit and surrender to Lessor the
Premises, together with all buildings and improvements which became fixtures,
broom clean, in good order and condition, damage caused by fire or other
catastrophe not resulting from Lessee's gross negligence excepted, and ordinary
wear and tear also excepted. Lessee shall remove all property to be removed at
the expense of the Lessee, and Lessee hereby agrees to pay all costs and
expenses thereby incurred. Lessee's obligations to observe or perform this
covenant shall survive the expiration or other termination of the term of this
Lease.
18. Estoppel Certificates. Lessee agrees to execute and deliver to Lessor
or Lessor's mortgagee or financial institution estoppel certificates in form and
substance reasonably required by any lender of Lessor, together with such
additional documents as such lender may reasonably request.
19. Construction of Lease. Words of any gender used in this Lease shall be
held to include any other gender, and words in the singular number shall be held
to include the plural, when sense requires. Wherever used herein, the words
"Lessor" and "Lessee" shall be deemed to include the heirs, personal
representatives, successors, sublessees and assigns of said parties, unless the
context excludes such construction.
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20. Captions. The paragraph captions as to contents of particular
paragraphs herein are inserted only for convenience and are in no way to be
construed as part of this Lease or as a limitation on the scope of the
particular paragraph to which they refer.
21. Taxes. Lessee agrees to pay all real estate taxes and assessments on
the land and buildings due and payable during the term of this Lease, or any
renewals thereof.
22. Lease Acceptance. This Lease contains all the oral and written
agreements, representations and arrangements between the parties hereto and any
rights which the respective parties hereto may have had under any previous
contracts or oral arrangements are hereby cancelled and terminated and no
representations or warranties are made or implied other than those set forth
herein. No oral agreement or representations for rental shall be deemed to
constitute a lease other than this Lease and not until and unless this Lease
shall have been properly executed by the Lessee and delivered to and executed by
the Lessor.
23. Binding Upon Successors. All provisions herein contained shall bind and
inure to the benefit of the parties hereto, their heirs, personal
representatives, successors and permitted assigns.
24. Attorney Fees. If it should become necessary for Lessor to employ an
attorney to assert any right of Lessor or force any obligation of Lessee
hereunder after default by Lessee, Lessor shall be entitled to recover, in
addition to the other costs and expenses herein provided for, the reasonable
costs and charges of investigation and of such attorney.
25. Definition of Lessor: Liability of Lessor Limited. The term "Lessor" as
used in this Lease means only the owner or ground Lessor for the time being of
the land which constitutes the leased Premises, so that in the event of any sale
or sales of such land, or assignment of the ground lease, or assignment,
transfer or other conveyance of his rights under this Lease, the said Lessor
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Lessor hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser at any such sale, or the successor to
Lessor by reason of any
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assignment, transfer or other conveyance of Lessor's interest in this Lease,
that such purchaser or successor has assumed and agreed to perform all of
Lessor's obligations hereunder. The preceding sentence shall also be applicable
to all successor lessors. Notwithstanding anything to the contrary provided in
this Lease, it is agreed that Lessor, his heirs, successors and assigns, shall
have absolutely no liability with respect to any of the terms, covenants and
conditions of this Lease, and Lessee hereby expressly agrees that it shall look
solely to the equity of Lessor or his successor(s) in interest in the leased
Premises for the satisfaction of each and every remedy of Lessee in the event of
any breach by Lessor or by such successor in interest of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of personal liability to be absolute and without any exception
whatsoever. Lessee covenants that no execution shall be levied against Lessor,
but only against the leased Premises, and all judgments shall be so indexed.
IN WITNESS WHEREOF the parties have hereunto set their hands this 18th day
of October, 1991.
LESSOR:
/s/ Xxxxxx X. Xxxxxx XX
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Xxxxxx X. Xxxxxx XX
/s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
LESSEE:
INFINITI OF CHATTANOOGA, INC.
By: /s/ Xxxxxx X. Xxxxxx XX
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Title: Pres.
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XXXXX XX XXXXXXXXX:
XXXXXX XX XXXXXXXX:
Before me, a Notary Public of the state and county aforesaid, personally
appeared XXXXXX X. XXXXXX XX, with whom I am personally acquainted (or proved to
me on the basis of satisfactory evidence) and who, upon oath, acknowledged
himself to be the person who executed the foregoing instrument, and that he
executed the same as his free act and deed.
WITNESS my hand an seal this 18th day of October, 1991.
/s/ Xxxxx X. Xxxxxxxxx
------------------------
Notary Public
My commission expires: 0/00/00
XXXXX XX XXXXXXXXX:
XXXXXX XX XXXXXXXX:
Before me, a Notary Public of the state and county aforesaid, personally
appeared XXXXXX X. XXXXX, XX., with whom I am personally acquainted (or proved
to me on the basis of satisfactory evidence) and who, upon oath, acknowledged
himself to be the person who executed the foregoing instrument, and that he
executed the same as his free act and deed.
WITNESS my hand an seal this 18th day of October, 1991.
/s/ Xxxxx X. Xxxxxxxxx
------------------------
Notary Public
My commission expires: 7/26/95
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XXXXX XX XXXXXXXXX:
XXXXXX XX XXXXXXXX:
Before me, a Notary Public of the state and county aforesaid, personally
appeared Xxxxxx X. Xxxxxx XX, with whom I am personally acquainted (or proved to
me on the basis of satisfactory evidence), and who, upon oath, acknowledged
himself to be the President of INFINITI OF CHATTANOOGA, INC., the within-named
bargainor, a corporation, and that he as such officer, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation as he is authorized so to do.
WITNESS my hand an seal this 18th day of October, 1991.
/s/ Xxxxx X. Xxxxxxxxx
------------------------
Notary Public
My commission expires: 7/26/95
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