9
ORLANDO/IOPPOLOF/5037/3vx01!.DOC/2/26/97
Exhibit 10.22
LEASE
THE STATE OF FLORIDA
COUNTY OF PALM BEACH
This lease is made and executed in duplicate by and between XXXXX
XXXXXXXXXX, XX., of 00000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx of Florida,
"lessor," and FIRST CHOICE AUTO FINANCE, INC., a Florida corporation, of
000 Xxxxx Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxxx of Florida, "lessee."
SECTION I
DESCRIPTION OF PREMISES
Lessor leases to lessee, and lessee hires from lessor, the premises
located at 000 Xxxxx Xxxxxxxx Xxxxx and adjoining parcels, West Palm Beach,
State of Florida, and described more particularly as follows:
XXXXXX PARK
LTS 9 TO 12 (LESS N 8 FT), E 10 FT OF XX 00 & XXX 00 &
00 (XXXX X 0 XX) XX 00 (XXXX X 0 XX & X 00 XX) LTS 11 ,
10, 23 (LESS E 10 FT) LTS 17 TO 23 (LESS E 10 FT) LTS
25 & 26 & E 10 FT, XXX 00 & XXX 00 XX 00 XXX XXXX ALLEY
LYG E O AND ADJ 2 LOTS 15 & 24
XXXXXX PARK
LTS 46 TO 48 INC.
SECTION II
TERM
The term of this lease is for a period of five years beginning
February 13, 1997 and terminating at midnight on February 13, 2002.
SECTION III
RENT
The total rent of this lease is the sum of $720,000.00. Lessee
agrees to pay lessor this amount in installments of $12,000.00 each month,
payable to lessor at 00000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx of Florida,
beginning on the first day of this lease and payable on the same day of
each month thereafter during the term of this lease.
Upon the execution of this lease, lessee agrees and lessor
acknowledges receipt herein the sum of $24,000.00 plus sales tax in the
amount of $1,440.00 representing first and last month's installments of the
term of this lease.
SECTION IV
STATE SALES TAX
In addition to rent lessee shall be responsible for payment of state
sales tax for the leased premises. The current rate is six (6%) percent to
be paid in addition to and included in the monthly rental installments.
Any increase in the state sales tax will be borne by lessee and included in
the monthly rental installments.
SECTION V
PAYMENT OF REAL PROPERTY TAXES AND ASSESSMENTS
Lessee, in addition to the fixed rent provided for herein, shall pay
all taxes and assessments upon the leased premises, and upon the buildings
and improvements thereon, which are assessed during the lease term. All
taxes assessed prior to but payable in whole or in installments after the
effective date of the lease term, and all taxes assessed during the term
payable in whole or in installments after the lease term, shall be adjusted
and prorated, so that lessor shall pay its prorated share for the period
prior to and for the period subsequent to the lease term and lessee shall
pay its prorated share for the lease term.
Lessor agrees to provide to lessee Notice of Assessment of Real
Property Taxes and Assessments and lessee shall have fifteen (15) days
after receipt of same in which to pay the assessed value of the real
property. Lessee may dispute and contest any taxes by appropriate
proceedings diligently conducted in good faith. Any excess amounts paid by
lessee to lessor for any taxes shall be promptly refunded to lessee.
SECTION VI
USE OF PREMISES
The premises are leased to be used for the purposes of automobile
sales, financing and any related or ancillary use. Lessee agrees to
restrict its use to those purposes, and not to use, or permit the use of,
the premises for any other purpose without first obtaining the consent in
writing of lessor, or of lessor's authorized agent.
SECTION VII
OPTION TO RENEW
Lessor grants lessee an option to renew this lease for two additional
five year terms at a base rental of $720,000.00 for each term. All other
terms, covenants, and conditions of the renewal lease shall be the same as
those contained herein. To exercise such option, lessee must give lessor
written notice of its intention to renew said lease at least ninety (90)
days prior to the expiration of each term.
The rent for each lease year of any of the extended terms provided for
in this lease shall be $144,000.00 plus such additional amount, if any, as
shall be sufficient to give to lessor for each lease year during such
extended terms a total annual net rent equal to the purchasing power of
$144,000.00 during January, 1997. Said rent for any renewal term shall be
paid in equal monthly installments.
Within thirty (30) days after the publication and issuance thereof,
lessor shall deliver to lessee a true copy of the Consumer Price Index,
hereinafter called the Index, for all items of the Bureau of Labor
Statistics of the United States Department of Labor for the month of
January, 1997, hereinafter called the base month, for the month of January,
2002, and for the corresponding month in each lease year thereafter. If
the Index for the month of January 2002, and for each corresponding month
in each lease year thereafter shows a decrease in the purchasing power of
$144,000.00 as compared, in each such case, to the Index for the month
ending January, 1997, lessor, as soon as possible after the delivery of
each Index subsequent to the Index for the base month, shall furnish lessee
with the computation of the additional amount, if any, to be paid by lessee
for the lease year in question. Such additional amount shall be divided
and paid in 12 equal monthly installments during each such lease year.
Pending the determination of the additional amount, if any, to be paid by
lessee, lessee shall continue to pay the net rent at the rate of
$144,000.00 per annum. When said additional amount has been determined,
lessee shall pay to lessor, on the date of rent payment for the month
immediately following the date lessor furnished to lessee the computation
thereof, the number of installments that shall have elapsed from the
commencement of the lease year in question up to and including the current
month.
If at the time required for the determination of the additional rent
the Index is no longer published or issued, or if at that time lessor and
lessee mutually agree that the Index does not accurately reflect, in
relationship to the base date, the purchasing power of $144,000.00, the
parties shall mutually agree upon such other index as is then generally
recognized and accepted for similar determinations of purchasing power. If
the parties are unable to agree on the selection of an index which would
most accurately carry out the intent hereof, or if there is a dispute with
respect to the computation of the additional rent as herein provided, then
the issue with respect thereto shall be determined by arbitration as
provided for in this lease.
SECTION VIII
PROHIBITION AGAINST WASTE, NUISANCE OR UNLAWFUL USE
Lessee shall not commit, or allow to be committed, any waste on the
premises, create or allow any nuisance to exist on the premises, or use or
allow the premises to be used for any unlawful purpose.
SECTION IX
PAYMENT OF UTILITIES
Lessee shall pay for all utilities furnished to the premises for the
term of this lease, including electricity, gas, water, and telephone
service.
SECTION X
REPAIRS AND MAINTENANCE
Lessee, at its expense, shall maintain and keep the premises,
including without limitation, windows, doors, skylights, adjacent
sidewalks, storefront, and interior walls, in good repair. This provision
shall be deemed a material provision of this lease.
SECTION XI
DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
Lessor represents that the premises are in fit condition for use as
described herein. Lessee agrees to accept the premises on possession as
being in a good state of repair and in sanitary condition. Lessee agrees
to surrender the premises to lessor at the end of the lease term, if the
lease is not renewed, in the same condition as when lessee took possession,
allowing for reasonable use and wear, and damage by acts of God, including
fire and storms. Lessee agrees to remove all business signs or symbols
placed on the premises by lessee before redelivery of the premises to
lessor, and to restore the portion of the premises on which said signs or
symbols were placed in the same condition as before such placement.
SECTION XII
DESTRUCTION OF PREMISES
Partial destruction of the leased premises shall not render this lease
void or voidable, or terminate it except as provided herein.
If the premises are partially destroyed during the term of this lease,
lessee shall repair them, when such repairs can be made, in conformity with
local, state, and federal laws and regulations, within 120 days of the
partial destruction. Rent for the premises will remain in effect during
repairs. If the repairs cannot be so made within the time limited, lessor
has the option to make said repairs within a reasonable time and continue
this lease in effect with rent abated proportionally for that portion of
the leased premises lessee reasonably determines is unusable. If the
repairs cannot be made in 180 days, and if lessor does not attempt to make
said repairs within a reasonable time, either party to this lease has the
option to terminate the lease.
A total destruction of the premises, or of the building, shall
terminate this lease. In the event of any dispute between lessor and
lessee relative to the provisions of this Section or Section XXIII, the
parties shall submit their dispute to arbitration in accordance with the
rules of the American Arbitration Association, and the arbitration shall be
final and binding upon both lessor and lessee, and the cost of such
arbitration shall be borne by the substantially non-prevailing party.
SECTION XIII
LESSOR'S RIGHT TO INSPECT, REPAIR, AND MAINTAIN PREMISES
Lessor reserves the right to enter the premises at reasonable times
and with advanced written notice from lessor to lessee to inspect the
leased premises. Should lessee be in default under this lease, lessor
shall have the right to perform any maintenance and repair required under
this lease to any part of the building upon the leased premises. Lessor
may, in connection with such repairs, reasonably erect scaffolding, fences,
and similar structures, post relevant notices, and place moveable equipment
without any obligation to reduce lessee's rent for the premises during such
period, and without incurring liability to lessee for disturbance of quiet
enjoyment of the premises, or loss of occupation of the premises.
SECTION XIV
POSTING OF SIGNS BY LESSOR
Lessor reserves the right to place "For Sale" signs on the premises at
any time during the lease, or "For Lease" or "For Rent" signs on the
premises at any time within ninety days of expiration of the lease, if
lessee has not exercised its option to renew, and lessee agrees to permit
lessor to do so.
SECTION XV
POSTING OF SIGNS, AWNINGS, OR MARQUEES BY LESSEE
Lessee agrees that it will not construct or place, or permit to be
constructed or placed, signs, awnings, marquees, or other structures
projecting from the exterior of the premises without lessor's written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned. Lessee further agrees to remove signs, displays,
advertisements or decorations it has placed, or permitted to be placed, on
the premises, which violate any governmental ordinance, are reasonably
offensive or otherwise reasonably objectionable. If lessee fails to remove
such signs, displays, advertisements, or decorations within thirty (30)
days after receiving prior written notice from lessor to remove them,
lessor reserves the right to enter the premises and remove them, at
lessee's expense.
SECTION XVI
INDEMNIFICATION, HOLD HARMLESS AND LIABILITY INSURANCE
Lessee agrees to procure and maintain in force during the term of this
lease and any extension of this lease, at its expense, public liability
insurance adequate to protect against liability for damage claims through
public use of or arising out of accidents occurring in or around the leased
premises, in an amount no less than $1 million for each person injured, $2
million for any one accident, and $250,000 for property damage. The
insurance policies shall provide coverage for lessor's contingent liability
on such claims or losses. Proof of such insurance will be provided to
lessor upon request by lessor. Lessee agrees to obtain a written
obligation from the insurers to notify lessor in writing at least thirty
(30) days prior to cancellation or refusal to renew any policies. Lessee
agrees that, if the insurance policies are not kept in force during the
entire term of this lease and any extension of this lease, lessor may
procure the necessary insurance, pay the premium, and that premium shall be
repaid to lessor as an additional rent installment for the month following
the date on which such premiums are paid.
Lessee shall indemnify lessor against all liabilities, expenses, and
losses incurred by lessor as a result of (a) failure by lessee to perform
any covenant required to be performed by lessee hereunder; (b) any
accident, injury, or damage which shall happen in or about the leased
premises or appurtenances, or on or under the adjoining streets, sidewalks,
curbs, or vaults, or resulting from the condition of the leased premises
not in existence on the date hereof or from the maintenance or operation of
the leased premises during the term of this lease. Lessor shall indemnify
lessee against all liabilities, expenses, and losses incurred by lessee as
a result of failure by lessor to perform any covenant required to be
performed by lessor hereunder.
SECTION XVII
ASSIGNMENT OR SUBLEASE
Lessee agrees not to assign or sublease the leased premises, any part
thereof, or any right or privilege connected with the premises, or to allow
any other person, except lessee's agents and employees, to occupy the
premises or any part of the premises, without first obtaining lessor's
written consent, which consent shall not be unreasonably withheld, delayed
or conditioned. Consent by lessor shall not be a consent to a subsequent
assignment, sublease, or occupation by other persons. Lessee's
unauthorized assignment, sublease, or license to occupy shall be void, and
shall terminate the lease at lessor's option. Lessee's interest in this
lease is not assignable by operation of law, nor is any assignment of its
interest in it, without lessor's written consent.
Lessee shall have the right in the event of a merger, consolidation,
reorganization, or recapitalization, whether or not lessee survives as the
surviving corporation, to assign or transfer this lease to such surviving
corporation. Such right of assignment of transfer shall, however, be
limited to an assignee whose book value is equal to or greater than the
book value of lessee at the time of such assignment or transfer. In the
event lessee contemplates making an assignment or transfer as provided in
this section, lessee shall give thirty (30) days notice to lessor of its
intent to make such assignment or transfer and shall furnish to lessor all
pertinent information as to the book value of the proposed assignee. Upon
assignment or transfer, as provided in this section, the liability of
lessee shall terminate and lessor shall look to the assignee for
performance under this lease provided such assignee agrees in writing to be
bound by the terms and conditions of this lease as though an original
signatory to this agreement.
Except as otherwise expressly provided in this lease, lessee shall
remain fully liable on this lease and shall not be released from performing
any of the terms, covenants, and conditions of this lease unless lessor
consents.
Lessee immediately and irrevocably assigns to lessor, as security for
lessee's obligations under this lease, all rent from any subletting of all
or a part of the premises as permitted by this lease, and lessor, as
assignee and as attorney-in-fact for lessee, or a receiver for lessee
appointed on lessor's application, may collect such rent and apply it
toward lessee's obligations under this lease, except that, unless there is
a continuing default hereunder by lessee, lessee shall have the right to
collect such rent.
Lessee agrees to reimburse lessor for all expenses, including
reasonable attorneys' fees, incurred by lessor in connection with any
requested and permitted assignment or subleasing. Such sum shall be in
addition to the attorneys' fees and costs allowed under this lease.
SECTION XVIII
DEFAULT
The following shall constitute a default under this lease:
a. if lessee fails to cure a breach for payment of amounts due under
this lease within fifteen (15) days after any such payment is due;
b. if either party breaches a material term of this lease (other
than a default described in paragraph XVIII(a) above) and fails to cure
such breach within thirty (30) days after written notice of such breach is
received by the defaulting party from the non-defaulting party; provided,
however, that if such breach is capable of being cured, but not within such
30-day period, this lease may not be terminated so long as the defaulting
party commences appropriate curative action within such 30-day period and
thereafter diligently prosecutes such cure to completion as promptly as
possible;
Should lessor be in default under this lease, then lessee in addition
to, but not in limitation of any other right or remedy, may at its option,
either remedy the condition or matter referred to in said notice, and
lessor agrees to reimburse lessee for any expense reasonably incurred in
connection therewith, and if lessor fails to reimburse lessee within ten
days after being submitted a written xxxx for monies so expended, lessee
may deduct said sum from the next ensuing rental payment or payments or
pursue any other remedy provided at law or in equity.
Should lessee be in default under this lease, lessor shall have the
following remedies in addition to his other rights and remedies in such
event:
a. Reentry. Lessor has the right to obtain possession of the
premises as provided by law.
b. Termination. After reentry, lessor may terminate the lease on
giving thirty (30) days written notice of such termination to lessee.
Reentry only, without notice of termination, will not terminate the lease.
c. Reletting Premises. After reentering, lessor may relet the
premises or any part thereof, for any term, without terminating the lease
at such rent and on such terms as he may choose. Lessor may make repairs
to the premises.
(1) Liability of Lessee on Reletting. Lessee shall be liable to
lessor in addition to his other liability for breach of the lease for all
reasonable expenses of the reletting, and any repairs made, which lessor
may reasonably incur. In addition, lessee shall be liable to lessor for
the difference between the rent received by lessor under the reletting and
the rent installments that are due for the same period under this lease.
(2) Application of Rent on Reletting. Lessor at his option may apply
the rent received from reletting the premises as follows:
(a) To reduce lessee's indebtedness to lessor under the lease, not
including indebtedness for rent;
(b) To reasonable expenses of the reletting and repairs made;
(c ) To rent due under this lease;
(d) To payment of future rent under this lease as it becomes due.
If the new lessee does not pay a rent installment promptly to lessor,
and the rent installment has been credited in advance of payment to
lessee's indebtedness other than rent, or if rentals from the new lessee
have been otherwise applied by lessor as provided for in this lease, and
during any rent installment period are less than the rent payable for the
corresponding installment period under this lease, lessee agrees to pay
lessor the deficiency separately for each rent-installment deficiency
period, and before the end of that period.
SECTION XIX
NOTICES
Notices given pursuant to the provisions of this lease, or necessary
to carry out its provisions, shall be in writing, and delivered personally
to the person to whom the notice is to be given, or mailed postage prepaid,
addressed to such person. Lessor's address for this purpose shall be 00000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx, or such other address as he may in
writing designate to lessee. Notices to lessee may be addressed to lessee
at the leased premises.
SECTION XX
QUIET ENJOYMENT
Lessor covenants, warrants and represents that lessor has full right
and power to execute and perform this lease, and to grant the estate
demised herein; and that lessee, upon the payment of the rent herein
reserved and performance of the covenants and agreements herein contained
shall peaceably and quietly have, hold and enjoy the leased premises and
all rights, easements, covenants and privileges belonging or in any way
appertaining thereto.
SECTION XXI
BINDING EFFECT ON SUCCESSORS AND ASSIGNS
This lease and the covenants and conditions of this lease apply to and
are binding on the heirs, successors, executors, administrators, and
assigns of the parties to this lease.
SECTION XXII
TIME OF THE ESSENCE
Time is of the essence in this lease.
SECTION XXIII
EFFECT OF EMINENT DOMAIN PROCEEDINGS
If any part of the leased premises is taken by eminent domain, lessor
may, at its sole option, terminate the lease by giving written notice to
lessee within forty-five (45) days after the taking, or if by reason of any
such taking lessee's operation on the leased premises is materially
impaired, lessee shall have the option to terminate this lease, by giving
written notice to lessor within forty-five (45) days after the taking and
the rent will be adjusted as of the date of the notice.
SECTION XXIV
INSOLVENCY
The occurrence of any of the following events shall constitute a
breach of this lease by lessee and a default under this agreement: (1) the
appointment of a receiver to take possession of all or substantially all of
the assets of lessee; or (2) a general assignment by lessee for the benefit
of creditors; or (3) any action taken by lessee under any insolvency or
bankruptcy act.
SECTION XXV
COMPLIANCE WITH LAW
Lessee shall, at its sole cost and expense, comply with all laws
pertaining to lessee's use of the premises, and shall faithfully observe
all laws in the use of the premises. Lessee shall not be required to
remedy any pre-existing condition. The judgment of any court of competent
jurisdiction, or the admission of lessee in any action or proceeding
against lessee, whether the lessor is a party to it or not, that lessee has
violated any law in the use of the premises shall be conclusive of that
fact as between lessor and lessee. Without limiting the generality of the
foregoing, the duties of lessee under this provision shall include the
making of all such alterations of the premises as may be required by law by
reason of the particular manner or mode of use of the premises by lessee,
or occasioned by reason of the failure of lessee to maintain or repair the
premises as required under this lease.
XXVI
LESSEE'S RIGHT OF FIRST REFUSAL
If lessor has the opportunity to sell the leased premises, he shall
give lessee thirty (30) days' prior written notice of such proposed sale
and the terms thereof. Lessee shall have the first option to purchase the
leased premises within such 30-day period at the same price and on the same
terms of any such proposal. Should lessee decide not to purchase the
leased premises pursuant to the option set forth hereinabove, lessee shall
have no less than ninety (90) days from the date of the expiration of said
30-day period to relocate to another property.
XXVII
EFFECT OF EXERCISE OF OR FAILURE
TO EXERCISE RIGHTS BY LESSOR
Neither the exercise of nor failure to exercise any right, option, or
privilege under this lease by lessor shall exclude lessor from exercising
any and all other rights, options, or privileges under this lease, nor
shall such exercise or nonexercise relieve lessee from lessee's obligation
to perform each and every covenant and condition to be performed by lessee
under this lease, or from damages or other remedy for failure to perform or
meet the obligations of this lease.
XXVIII
WAIVER
The waiver by lessor of any breach of any term, covenant, or condition
contained in this lease shall not be deemed to be a waiver of such term,
covenant, or condition, or of any subsequent breach of such term, covenant,
or condition, or of any other term, covenant, or condition in this lease.
The acceptance of rent under this lease by lessor shall not be deemed to be
a waiver of any preceding breach by lessee of any term, covenant, or
condition of this lease other than lessee's breach in failing to pay the
particular rent so accepted regardless of lessor's knowledge of such
additional preceding breach at the time of the acceptance of such rent.
SECTION XXIX
REPRESENTATIONS
This lease represents the entire agreement of the parties with respect
to the parties' rights and duties under this lease. Lessee acknowledges
that neither lessor nor any agent, servant, or representative of lessor, or
any person purporting to act on lessor's behalf, has made any
representation, warranty, or statement regarding any matter relating to
this lease that is not
expressly covered in this lease. With respect to such matters, lessee is
relying upon lessee's own independent investigation and sources of
information.
SECTION XXX
MEMORANDUM OF LEASE
Each party shall cooperate in executing any and all other documents
required to protect a party's rights hereunder or permit lessee's permitted
use including, without limitation, applications for permits or government
approvals, zoning applications, a Memorandum of Lease or easement
agreements. The aforementioned Memorandum of Lease in the form of Exhibit
A attached hereto shall be executed by both parties and recorded.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
instrument for the purpose herein expressed, the day and year above
written.
Signed, sealed and delivered
in the presence of:
LESSOR:
/S/ XXXXX XXXXXXXXXX
Name: XXXXX XXXXXXXXXX
Name:
LESSEE:
FIRST CHOICE AUTO FINANCE,
INC., a Florida corporation
By: /S/ J. XXXX XXXXXXXXXX, XX.
Name Name: J. XXXX XXXXXXXXXX, XX.
Title: VICE PRESIDENT
Name:
STATE OF FLORIDA
COUNTY OF______________
BEFORE ME, the undersigned authority, personally appeared XXXXX
XXXXXXXXXX to me known to be the person who executed this document the
foregoing lease on this day of ____________, 1997. IN WITNESS
WHEREOF, I have hereunto set my hand and affixed my official seal the
day of ____________, 1997.
NOTARY PUBLIC at Large
[Notary Seal] State of Florida
My Commission Expires:
