Exhibit 10.4
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT made this first day of December, 2003, by and
between BALANCE AMERICA INC. or Assigns., hereinafter to as "LESSOR, and
INTELLIGENT MOTOR CARS INC., a Florida corporation, hereinafter referred to as
"LESSEE". The terms "Lessor" and Lessee' shall include their respective
successors, heirs, personal representatives and assigns.
WITNESSETH:
1. LEASED PREMISES:
----------------
In consideration of the mutual covenants and agreements contained
herein, Lessor hereby leases to the Lessee, and the Lessee leases from the
Lessor, that property located n the County of Broward, state of Florida, the
legal description of which is:
0000X XXXX XXXXXXX XXXX, XX. XXXXXXXXXX, XX 00000 BAYS 1-2-3-4 AND THE
OFFICE (NORTH END OF THE BUILDING)
2. TERM OF LEASE:
--------------
This Lease is for a term of ONE (1) year beginning on the Commencement
Date' (as Commencement Date: is hereinafter defined) ONE (1) years thereafter.
The `Commencement Date: shall be on the FIRST day of DECEMBER, 2003 and continue
until 30 DAY of NOVEMBER, 2004.
3. RENT:
-----
Lessee agrees to pay to the Lessor for the leased premises during the
term of this Lease the following rentals:
The monthly rental of TWO THOUSAND ONE HUNDRED AND THIRTY ONE DOLLARS
($2131.00) for the first year INCLUDES applicable Florida sales tax.
The first month's rental shall be due and payable upon the execution of the
Lease, and shall be due and payable on the first day of each and every month
thereafter in advance. All rent due and payable by Lessee to Lessor shall be
subject to applicable sales taxes on commercial rentals.
Lessor acknowledges that a security deposit of TWO THOUSAND ONE HUNDRED
AND THIRTY ONE DOLLARS ($2131.00) including applicable sale tax is due on
DECEMBER 1, 2003 in addition to regular monthly rent. Last months rent will be
adjusted yearly to equal increases on any extensions of this lease.
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4. USE OF PREMISE:
---------------
Lessee agrees that the leased premises shall be used and occupied only
for used car repair
LEASEHOLD IMPROVEMENTS AND REPAIRS:
-----------------------------------
The Lessee, during the term of this Lease or any extension for renewal
of this Lease, shall, at its expense, be permitted to make such alterations or
improvements to the leased premises as shall be reasonably necessary for the
operation of the Lessee's business. Improvements made to the external or
internal structure of the premises, including facia or free standing signage,
whether for design, cosmetic or structural repair, exterior or interior
alteration, or landscaping modification, shall be submitted to the Lessor for
Lessor's approval prior to the commencement of the improvements. Lessee shall
submit plans, renderings, sketches, and/or architectural drawings clearly
indicating the improvements or modifications to be made by the Lessee to the
lease premises to the Lessor for approval prior to commencing any improvements.
The Lessors approval must be in writing, and such approval shall not be
unreasonably withheld. The Lessee, during the term of this lease or any
extension or renewal of this lease, shall, at is expense, make all repairs as
shall be reasonably necessary to keep the said leased premises in good condition
and repair. The Lessee further agrees Lessee will make necessary repairs at its
expense. The Lessee agrees at the expiration of this Lease or upon the earlier
termination thereof, to quit and surrender said premises in good condition and
repair, reasonable wear and damage by Act of God or fire or other causes beyond
the control of Lessee excepted.
5. MECHANIC'S LIENS:
-----------------
The parties supplying labor, materials or services to the Lessee which
could be the subject matter of a mechanic's lien are hereby put on notice of the
fact that no Claim of Lien may ever be had or obtained against Lessor's interest
in the lease premises and all such persons shall look solely to the Lessee and
Lessee's interest in the leased premises for payment. Lessee agrees that within
thirty (30) days after Lessee has been notified of the filing of any Claim of
Lien resulting from Lessee's activities, Lessee will either pay or transfer to
bond any mechanic's lien which is filed against the leased premises by reason of
Lessee's work thereon.
6. OCCUPATION LICENSE:
-------------------
It shall be the responsibility of the Lessee herein to obtain State,
City and County Occupational Licenses or any other licenses. In the event of a
default under the terms of this Lease Agreement, said licenses shall remain with
the demised premises and the Lessee herein hereby irrevocably appoints the
Lessor as it attorney-in-fact to transfer said licenses into the name of Lessor
or its assigns. State, city and County licenses must be renewed promptly and
kept in good standing. State, City and County licenses cannot be transferred or
removed from premises without consent of Lessor in writing.
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7. INDEMNITY AND INSURANCE:
------------------------
The Lessee hereby agrees to indemnify the Lessor against and to hold
the Lessor harmless from any and all claims or demands for loss or damage to
property or for injury or death to any person from any cause whatsoever while
in, upon or about said leased premises, including walkways and parking lots,
during the term of this lease or any extension thereof, arising out of or in
connection with Lessee's use or occupancy of the leased premises. The Lessee
agrees to acquire and maintain from a reputable insurance company, at its sole
cost and expense, public liability insurance against property damage or personal
injury growing out of the use of or occurring on or about the leased premises
with liability limits of not less than One Million Dollars ($1,000,000) for
injuries to one person and One Million Dollars ($1,000,000) for injuries to more
than one person in any one accident or occurrence, and for loss or damage to the
property of any person or persons, for not less than One Hundred Thousand
Dollars ($100,000). The Lessor shall be named as an additionally named insured
on all such policies and Lessee shall furnish the Lessor a certificate by the
insurer indicating said coverage to be in effect. It is understood by and
between the Lessor and Lessee that the Lessee will only be able to obtain the
above coverage therefore an umbrella policy will be obtained to increase the
limits up to $500,000.00 for injuries to one person or more than one person at
the sole cost and expense of the Lessee. In addition, sums due for said
insurance shall be paid for by the Lessee as additional rent for the succeeding
month.
During the term of this Lease or any extension or renewal thereof, the
Lessee, as it sole cost and expense, shall provide fire and extended coverage
insurance for the full insurable value not less than ($100.000) of the real
property (building) improvements, which term includes machinery, fixtures, air
conditioning and equipment affixed to the building, which are a part of the
leased premises. The Lessor is to be named additional insured and be provided
with a certificate of insurance by the insurer showing such insurance to be in
effect.
8. DAMAGES BY CASUALTY:
--------------------
Any fire or damages caused by Lessee shall not effect the terms of this
Lease or Lessee's obligation to pay rent. Lessee shall give immediate written
notice to Lessor of any damage to the leased premises by fire or other casualty.
In the event that the building improvements located on the leased
premises shall be damaged or destroyed by fire or other casualty insured by the
fire and extended coverage provided by the Lessee, Lessor shall proceed with
reasonable diligence and at its cost, to replace and repair the building and
contents to its original condition at the time of signing of the lease. There
shall be no abatement in the payment of rentals due from Lessee to Lessor.
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9. ASSIGNMENT AND SUBLETTING:
--------------------------
The Lessee shall not assign this Lease or any interest therein nor
lease or sublease the said premises or any party thereof or any right or
privilege appurtenant thereto, not permit the occupancy or use of any part of
the leased premises by any person, corporation, partnership or other entity
without the written consent of the Lessor first having been had and obtained
which consent shall not be unreasonably withheld.
In the event Lessor agrees to a partial subletting, there would be no
additional security deposit required as long as Lessee remains as main tenant
and remains obligated under all terms and conditions under said lease and
assumes all responsibilities and conditions including those of the sublessee.
In the event Lessor does consent to any assignment or subletting prior
to the approval of such assignment or subletting, however, any such assignment
or subletting shall not relieve the Lessee herein of its obligation hereunder
and no assignment or sublease shall be effective until there is delivered to
Lessor and executed copy of the assignment or sublease wherein the assignee or
sublease assumes and agrees to be bound by the terms and conditions of this
Lease. The prohibition contained herein prohibiting assigning or subleasing
includes the restriction on the sole or transfer of all or controlling interests
in the corporate Lessee executing the Lease.
10. INSOLVENCY:
-----------
If any proceedings in bankruptcy be filed against the Lessee or if any
writ of attachment or writ of execution be levied upon the interest herein of
the Lessee and such proceedings or levy shall not be released or dismissed
within sixty (60) days thereafter, or if any sale of the leasehold interest
hereby created or any part thereof should be made under any execution or other
judicial process, or it the Lessee shall make any assignment for the benefit of
creditors or shall voluntarily institute bankruptcy or insolvency proceedings,
the Lessor, at Lessors election may re-enter and take possession of the leased
premises and remove all persons there from and may, at Lessors option, terminate
this lease.
11. DEFAULT:
--------
This lease is made upon the express condition that if the Lessee fails
to pay the rental reserved herein or any part thereof after the same shall
become due and such failure shall continue for a period of five (5) days without
the necessity of written notice thereof from the Lessor to Lessee, or it the
Lessee fails or neglects to perform, meet or observe any of the Lessees other
obligations hereunder and such failure or neglect shall continue for a period of
thirty (30) days after written notice thereof from the Lessor to the Lessee,
then the Lessor, at any time thereafter, by written notice to the Lessee, may
lawfully declare the termination hereof and reenter said premises or any part
thereof and by due process of law expel and remove the Lessee or any person or
persons occupying the premises and may remove all personal property therefrom
without prejudice to any remedies which might otherwise be used for the
collection or arrears or rent or for other defaults of the covenants, conditions
or terms of this Lease.
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In the event that the monthly rental payable hereunder is not paid
within seven (7) day grace period then the Lessee shall, in addition to the
monthly rental reserve, pay to the Lessor, a sum equal to five percent (5%) of
the rent dues as a late charge in addition to the actual rental due and said
late chare shall be additional rental due hereunder. Notwithstanding any other
provisions of this Lease, where the curing of an alleged default requires mores
than the payment of money, and the work of curing said default cannot be
reasonably accomplished within the time permitted and the Lessee has commenced
upon the curing of said default and diligently pursuing same, the Lessee shall
be entitled to reasonable time extensions to permit the completion of work of
curing said default, as a condition precedent to any re-entry by the Lessor
termination of the Lease by Lessor.
12. NON-WAIVER DEFAULT:
-------------------
The subsequent acceptance of rent by the Lessor shall not be deemed a
waiver of preceding breach of any obligation hereunder by the Lessee other than
the failure to pay the particular rent so accepted, and the waiver of any breach
of any covenant or condition by the Lessor shall not constitute a wavier of any
other breach regardless of knowledge thereof.
13. UTILITIES AND SERVICES:
-----------------------
The Lessee agrees to pay for all water, fuel, gas, oil, heat,
electricity, power materials, refuse removal and, services which may be
furnished to it for use by it in or about the leased premised and keep said
premises free and clear of any lien or encumbrance of any kind whatsoever
created by Lessee's act of omission.
14. ENTRY AND INSPECTION:
---------------------
The Lessor and its agents shall be permitted to enter the leased
premises at all reasonable times to inspect the premises.
15. LESSOR'S TITLE AND QUIET ENJOYMENT:
-----------------------------------
Lessor covenants and warrants that Lessor has fee title to the leased
premises subject only to encumbrances, easements, rights-of-way, reservations,
restrictions covenants and limitations and conditions or record which do not
prohibit , peaceful and quiet posession thereof. Lessor further covenants and
warrants that it has good right, full power and lawful authority to make this
Lease for the full term and any extensions thereof.
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16. CONDEMNATION:
-------------
If at any time during the term of this Lease or any extension thereof,
the entire leased premises or, in the judgement of Lessee, such a substantial
portion thereof as would render the balance of the leased premises not suitable
for the use to which the leased premises was being utilized immediately prior
thereto by the Lessee shall be taken or appropriated by any competent authority
for public or quasipublic use, this Lease will terminate upon the date that
possession is surrendered to the condemning authority, at which time all rights
and obligations between the parties shall cease and rents and other charges
apportioned. The taking of any portion of the building, fifteen percent (15%) or
more of the then existing parking area not reasonable replaceable by the Lessor
from contiguous land, or the loss of the rights of ingress and egress as then
established unless comparable access can be made available, shall be but not
exclusively considered such a substantial taking as would render the use of the
premises not suitable for Lessee's use. Notwithstanding any provision of this
Lease or by operation of law that leasehold improvements may be or shall become
the property of the Lessor at the expiration of the full term hereof, the loss
of all improvements paid for by the Lessee, the loss of Lessee's leasehold
estate, and such additional relief as may be provided by law shall be the basis
of Lessee's damages against the condemning authority if a separate claim there
of is allowable under applicable law, or basis of Lessee's damages against the
condemning authority if a separate claim there or is allowable under applicable
law, or basis of Lessee's damages to portion of the total award if only one
award is made. In the event of a permanent partial taking or appropriation not
resulting in a termination of this Lease, the Lessee shall be entitled to a
reduction of rent, the Lessee waives any claim for damage to or loss of its
leasehold improvements, all of which award being payable to the Lessor, possible
to its original condition. Lessee shall have the option of perform such
restoration, provided the whole of such award or such portion thereof as may be
necessary to accomplish restoration is made available to Lessee.
TOTAL-TEMPORARY:
----------------
If the taking of the whole of the leased premises or such portion
thereof as would render the use of the property not suitable for Lessee's use as
set forth above shall be taken for a period of one year of less, all rent and
other charges payable to the Lessor which are the obligation of the Lessee
pursuant to the terms of the Lease shall not xxxxx during the time possession of
the leased premises is surrendered to the taking authority. The basis for the
Lessee's damages against the condemning authority, if allowable, or against the
total award, shall be such as suffered by Lessee for the interruption of the
Lessee's business and such additional relief as may be provided by law. If such
taking shall extend beyond one year, the taking shall, for the purposed of lease
and at the option of Lessee, be considered permanent with the basis of Lessees
damages computed Total-Permanent.
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PARTIAL TEMPORARY:
------------------
If less than the whole of the leased premises or less than such portion
thereof as would render the use of the leased premises not suitable for the
Lessee's purpose as aforesaid is taken, Lessee shall be entitled to a reduction
of rental as is just and equitable, upon such date as possession is surrendered
to the taking authority and continuing until possession is restored to the
Lessee. In consideration of such reduction of rental. Lessee waives all rights
to any portion of the award as may be payable to the Lessor, However, the
foregoing shall not prevent Lessee from seeking separate damages for loss of
leasehold improvements and business if allowable under existing law.
GENERAL:
--------
Should the Lessor and Lessee be unable to agree as to the division of
any singular award of the amount of any reduction of rents and other charges,
such dispute shall be submitted for resolve to the court exercising jurisdiction
of the condemnation proceeding each party bearing its respective costs for such
determination.
Lessor covenants that at the execution date hereof it has no actual or
constructive knowledge of any proposed condemnation of any part of the leased
premises. In the event that subsequent to the execution date of this Lease, but
prior to the commencement date, a total or partial condemnation, either
temporary or permanent is proposed by any competent authority, Lessee shall be
under no obligation to commence or continue construction of its improvements and
any rentals or other charges payable to the Lessor shall xxxxx until such time
as it can be reasonable ascertained that the leased premises shall not be so
affected.
17. LEASE SECURITY:
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The Lessee is required, pursuant to the terms of this Lease, to post
security hereunder in the amount of TWO THOUSAND ONE HUNDRED AND THIRTY ONE
Dollars 9$2131.00) as guarantee and the performance by the Lessee as security of
all the conditions required to be performed by the lessee under the Lease. Such
surr shall be returned to the Lessee after the expiration of the term of this
Lease and any extensions thereof provided the Lessee has performed all such
conditions. The Lessor shall be entitled to co-mingle such deposit with its own
funds and use such sum of such purposes as the Lessor may determine. The Lessee
shall not be entitled to any interest on the security deposit and, hereby waives
same
(a) In the event of default by the Lessee in respect of any of the
conditions of this Lease, including but not limited to the payment of rent, the
Lessor may use, apply or retain all or any part of such security deposit of the
payment of any unpaid rent, or for any other amount which the Lessor may be
required to spend by reason of the default of the Lessee, including any damages
or deficiency in the reletting of the leased premises, regardless of whether the
accrual of such damages or deficiency occurs before or after an eviction or a
summary re-entry or other reentry by the Lessor.
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(b) The security deposit shall not be assigned or encumbered by the Lessee.
(c) Lessee, upon signing of this Lease and Payment of First months rent
may take possession and enter said premises. Covenant to pay rent commences
DECEMBER 1, 2003; all other covenants commence on the date of possession
(maintenance, utilities, etc.).
18. ATTORNEY'S FEES:
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In the event of any litigation between the Parties hereto or in the
event that the Lesser is required to retain the services of an attorney or incur
any expenses with regard to the enforcement of the terms of this Lease, Lessee
agrees to pay for all reasonable costs, disbursements and attorneys fees
including, cost or attorneys' fees incurred in any appellate proceedings, if we
prevail.
19. NOTICES:
--------
All notices to the Lessee shall be sent registered or certified mail,
addressed to the Lessee at its business offices at 0000X Xxxx Xxxxxxx Xxxx, Xx
Xxxxxxxxxx, XX 00000 or at such other address as the Lessee shall designate in
writing.
All notices to the Lessor shall be sent by registered or certified mail
to the Lessor at 0000 XX 00xx Xxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx, 00000 or at
such other address as the Lessor shall designate in writing.
Notwithstanding the provisions in this Lease to the contrary concerning
modifications, a change in address may be affected by a registered or certified
letter sent by either party to the other. All payments to the Lessor under the
terms of this Lease shall be made at the address designated for the notices to
the Lessor.
20. MAINTENANCE OF THE LEASED PREMISES:
-----------------------------------
Lessee shall maintain the interior and exterior of the leased premises
to be free of trash and debris. In the event the Lessee does not provide such
maintenance, Lessor may do so and any charges incurred by the Lessor in
providing such maintenance shall be charged as additional rent to the Lessee, In
particular, sprinkler system and all landscaping to be kept up to the city codes
and maintenance.
21. USE AND MAINTENANCE OF EQUIPMENT:
---------------------------------
Any and all equipment both inside and out must me maintained in the
condition for which it was received less normal & reasonable wear and tear.
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22. MISCELLANEOUS:
--------------
Neither the Lessor nor the Lessee nor any of their agents have made any
statement, promises or agreements verbally or in writing in conflict with the
terms of this lease. Any and all representations by either of the parties or
their agents made during negotiations prior to the execution of this Lease and
which representations are not contained in the provisions hereof shall not be
binding upon either of the parties hereto. The Lessor and Lessee agree to
indemnify and hold one another harmless from any and all claims, costs or
damages by any person or firm claiming to have negotiated, instituted or brought
about this Lease. It is further agreed that this Lease contains the entire
agreement between the parties, and no rights are to be conferred upon the Lessee
until this lease has been executed by the Lessor.
All terms and words used in this agreement regardless of the number and
gender in which they are used, shall be deemed and construed to include any
other number, singular or plural and any other gender, masculine or feminine or
neuter, as the context or sense of this agreement or any paragraph or clause
herein may require, the same as if such works had been fully and properly
written in the number and gender.
The agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but such
counterparts together shall constitute but one and the same instrument.
The Lessor and Lessee are not and shall not be considered joint
venturers nor partners and neither shall have the power to bind or obligate the
other except as set forth herein.
In the event Lessee continues to occupy the leased premises after the
last day of the term hereby created, or after the last day of extensions
thereof, without the consent of the Lessor, the Lessee shall pay to the Lessor
double the rent paid in the last month of the term of the Lease or the extension
thereof. In the event the Lessor elects to accept the rent after the last day of
the term thereby created or any extension thereof, the tenancy from month to
month shall be created.
In the event of any litigation between the parties hereto arising out
of this Lease, or the leased premises, the prevailing party therein shall be
allowed all reasonable attorneys fees expended or incurred in such litigation to
be recovered as part of the costs herein.
If any provision of this Lease or the application thereof to any person
or circumstances shall, to any extent be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons whose
circumstances are other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
No modification, alteration or amendment of this Lease shall be binding
unless in writing and executed by the parties hereto, their heirs, successors or
assigns.
The head notes to the sections of this agreement are inserted only as a
matter of convenience and for reference, and in no way confine, limit or
proscribe the scope of intent of any section of this agreement nor in any way
affect this Agreement.
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23. SIGNS:
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The Lessee shall not place nor allow to be placed any signs of any kind
whatsoever, upon, in or about the said premises or any part thereof, except of a
design and structure and in or at such places as may be indicated and consented
to by the Lessor in writing, which consent will not be unreasonably withheld.
Any signs permitted by the Lessor shall at all times conform with all municipal
ordinances or other laws and regulations applicable thereto.
24. COMPLIANCE:
-----------
The Lessee shall promptly comply with all laws, ordinances, rules,
regulations, requirements and directives of the Federal, State, and Municipal
governments or Public Authorities and of all their departments, bureaus and
subdivisions, applicable to and affecting the said premises, their use and
occupancy, for the correction, prevention and abatement of nuisances, violations
or other grievances in, upon or connected wit the said premises, during the term
hereof, and shall promptly comply with all orders, regulations, requirements,
and directives of the Board of Fire Underwriters or similar authority and of any
insurance companies which have issued or are about to issue policies or
insurance covering the said premises and its contents, for the prevention of
fire or other casualty, damage or injury, at the Lessee's own cost and expense.
In the event Lessee does not maintain or fails to comply with the above
within thirty (30) days after notice by City, the Lessor shall have the option
to maintain the same and the cost of such replacement shall be charged to Lessee
as additional rent. Failure of Lessee to pay such charge within 1- days shall
constitute a monetary default.
25. SUBORDINATION AND RECORD:
-------------------------
This Lessee is subject and subordinate to all mortgages which may not
or hereafter affect the Land and/or Building and to all renewals, modifications,
amendments, consolidations, replacements or extensions thereof. This clause
shall be self-operative and no further instrument of subordination shall be
required by any mortgages. In confirmation of such subordination, Lessee shall
promptly execute any such certificate that Lessor may request. Lessee hereby
constitutes and appoints Lessor the Lessee's attorney-in-fact to execute any
such certificate or certificates for an on behalf of Lessee.
26. JURY WAIVER:
------------
The Lessee hereby agrees to waive the trail by jury in any action,
proceeding or counter claim brought by any of the parites hereto against the
other on any matter arising out of or in any away connected with the Lease.
27. SUBLEASE:
---------
Notwithstanding section 10 of the Lease agreement, Lessee shall have
the right to sublease the said premises, or any part thereof, to any person,
corporation, partnership or other entity, with written consent of the Lessor.
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28. WARRANTIES:
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Lessor hereby warrants that said property is not in foreclosure and
that the Lessor is current with its payments to all mortgagors and property
taxes.
29. OPTION TO RENEW LEASE:
----------------------
This Lease has an option to renew at additional one (1) year intervals
with a yearly increase of 5.0% of the then yearly rent. IF left blank increase
will be negotiated at time of renewal. Option to renew can only be extended
provided Lessee is not in violations of any of the items of this lease
agreement.
30. SALE OF BUILDING:
-----------------
In the event the Lessor sells the building, Lessor will be given a
sixty day (60) written notice to vacate the premises if the new buyers do not
want to continue this lease. This lease will terminate at that time with no
further obligations or rights to either party.
and Singularly and Jointly
---------------------------- ----------------------
Personally Guarantee this entire lease agreement.
They are signing this lease as corporate officer and personally
guarantee the entire Lease agreement 100% each for any and all items.
witness Date /s/ Xxxxxxxx X Xxxxxxx LESSOR
---------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxx President
Balance America Inc.
witness Date /s/ illegible LESSEE
---------------------------- -------------------------------------
President
witness Date /s/ illegible Personally
---------------------------- -------------------------------------
witness Date /s/ illegible LESSEE
---------------------------- ------------------------------------
INTELLIGENT MOTOR CARS INC.
& and they
--------------------- -----------------------
On Personally appeared and he did
-------- ---------------------------- ----------
did not take an oath and say that they signed this instrument.
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Known to Me produced drivers license
------------------------ -----------------
My commission expires:
Notary Public State of Florida
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