EXHIBIT 10.90
Return to:
A. XXXX XXXXXXX, ESQUIRE
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
This Instrument Prepared by:
A. XXXX XXXXXXX, ESQUIRE
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR RECORDING
DATA
LEASE AGREEMENT
BY AND BETWEEN
Florida Auto Auction of Orlando, Inc.,
d/b/a Imperial Auto Auction
AS
LANDLORD
AND
FIRST CHOICE AUTO FINANCE, INC.
AS TENANT
THIS TRIPLE NET LEASE AGREEMENT (this "Lease") is made and entered into
this 12th day of May, 1997 by and between FLORIDA AUTO AUCTION OF ORLANDO, INC.
d/b/a Imperial Auto Auction (hereinafter called "Landlord"), and FIRST CHOICE
AUTO FINANCE, INC. (hereinafter called "Tenant").
W I T N E S S E T H:
LANDLORD and TENANT hereby agree as follows:
ARTICLE 1
DEMISED PREMISES, TERM AND USE
A. Landlord, for and in consideration of the covenants hereinafter
contained and made on the part of the Tenant, does hereby demise and lease unto
the Tenant, and Tenant does hereby lease from Landlord, the parcel of land more
particularly shown on Exhibit "A", consisting of six and seven tenths (6.7)
acres, including those certain improvements located therein and thereon
(collectively, the "Demised Premises"). The Demised Premises are located in the
northeast corner of the intersection of I-4 and County Line Road, in Polk
County, Florida, and constitute a portion of Landlord's larger parcel at this
location.
B. The initial or primary term of this Lease (the "Primary Term") shall
begin on the date hereof (the "Rent Commencement Date") and shall end one (1)
year after the Rent Commencement Date, unless sooner terminated or extended as
herein provided. Any reference herein to the "Term" shall mean the Primary Term.
C. Provided Tenant is not in default of any material term, condition or
covenant contained in this Lease either at the end of the Primary Term or any
applicable Renewal Term and at the time of the Tenant's notice of renewal,
Tenant shall have the option of renewing this Lease for up to five (5), one (1)
year periods (with each one year renewal referred to as a "Renewal Term") on the
same terms and conditions as provided in this Lease with the first Renewal Term
to commence immediately following the expiration of the Primary Term if Tenant
properly and timely exercises its right to renewal. In the event the Tenant
fails to properly exercise its right to continue the Lease for any Renewal Term,
the Tenant shall have no right to any further Renewal Terms. Notice of the
exercise for each Renewal Term must be given by Tenant to Landlord in writing
not later than sixty (60) days prior to commencement of the relevant Renewal
Term. The Renewal Terms shall run consecutively without any time periods between
the consecutive Renewal Terms.
D. Tenant shall have the right and privilege to use and occupy the Demised
Premises solely for the purpose of vehicular storage, inspection, repair
("repair") only allows mechanical work on engines, transmissions, brakes,
suspensions, tires, electrical, diagnostic, air conditioning via A.S.C.
certified technicians, lubrication with all matters to be properly stored and
disposed of in accordance with state law and regulation by state licensed
recyclers only), and automobile detailing, which allows cleaning, vacuuming,
washing, striping, minor body work and touch-up painting, and automobile retail
sales. Tenant shall have no right to use or occupy the Demised Premises for any
purpose, including but limited to, wholesale and retail auto auctions and any
type of auction, except for those purposes expressly allowed to Tenant under
this Lease.
E. Landlord may, in its sole and absolute discretion, terminate this Lease
upon one hundred eighty (180) days written notice to Tenant. Upon the effective
date of the termination, both parties shall be relieved of all obligations under
this Lease except those that expressly survive termination.
ARTICLE 2
EXHIBITS
The exhibits listed below and attached to this Lease are incorporated
herein by reference:
EXHIBIT A - Legal Description for the Demised Premises
ARTICLE 3
RENTAL, TRIPLE NET, AND SECURITY DEPOSIT
A. The Rental Amount and all additional charges shall begin to accrue on
the Rent Commencement Date. Tenant does hereby covenant and agree to pay to
Landlord, for the use and occupancy of the Demised Premises, during the Primary
Term at the times and in the manner hereinafter provided, an agreed rental in an
amount equal to One Hundred Sixty-seven Thousand Three Hundred Thirty-three and
32/100 Dollars ($167,333.32) (referred to in this Lease as the "Rental Amount")
which shall be paid in U.S. Dollars, in advance in ten (10) equal monthly
installments, without notice or invoice from Landlord, on the first day of each
and every calendar month during the Term hereof, commencing upon the first day
of the third calendar month after the Rent Commencement Date and ending three
hundred sixty-four (364) days after the Rent Commencement Date. The Rental
Amount is based upon a yearly rental of Two Hundred Thousand Eight Hundred
Dollars ($200,800.00) with the Landlord foregoing the first and second month's
rental. If the Rent Commencement Date is other than the first day of a calendar
month, then the monthly payment due on the first day of the third calendar month
after the Rent Commencement Date shall be increased by that portion of the
rental for the prior month for which rental is due, taking into account that the
first and second month's rent have been waived by the Landlord (the $167,333.32
Rental Amount was calculated by waiving the first and second month's rental).
The rental for the first Renewal Term shall be Two Hundred Thousand Eight
Hundred Dollars ($200,800.00). The rental for each subsequent Renewal Term shall
be $200,800.00 as increased by any percent increase in the Consumer Price Index
measured from the Rent Commencement Date to the day before commencement of the
applicable Renewal Term. The Consumer Price Index means the statistics published
in the Monthly Labor Review by the U.S. Department of Labor, Bureau of Labor
Statistics (the "Bureau") designated Consumer Price Index for all urban
consumers (CPI-U), unadjusted U.S. City Average, with a standard reference base
period of 1982-1984 = 100. If the completion and/or publication of the Consumer
Price Index shall be transferred from the Bureau to any other Department,
Bureau, or Agency of the United States of America, or if the Bureau shall adopt
a successor index, the index published by such successor department, bureau or
agency or such successor index shall be adopted and used as a standard of
computing cost of living adjustments to the interest rate. In the event no index
is published for the date or dates at issue, the percentage increase in rental
shall be established by interpolation from the published index(es) nearest to
the date on which the index is to be determined. The rental from the Primary
Term to the first Renewal Term and from Renewal Term to Renewal Term shall not
decrease notwithstanding any decrease in the Consumer Price Index.
The rental for each Renewal Term shall be paid in the same manner and upon
the same time periods as the Rental Amount except that the rental for each
Renewal Term shall be paid in twelve (12) equal monthly installments. All
payments provided for in this Lease shall be paid or mailed to:
Imperial Auto Auction
c/o Xxxxxx-Xxxxx, Inc.
P. O. Box 3648
Xxxxxxxx, Xxxxxxx 00000
Or to such other Payee or address as Landlord may designate, in writing, to
Tenant.
B. This Lease is, and is intended to be, a "triple net lease" with the
Tenant bearing all fees, taxes, assessments, charges, costs and expenses related
to this Lease, the Demised Premises and the Rental Amount and rents such that
the Landlord shall receive the Rental Amount for the Term and rents for all
Renewal Periods, net from all costs, fees, taxes, assessments and expenses
related to this Lease and the Demised Premises. Accordingly, Tenant shall be
responsible for all insurance, taxes, special assessments, liens, repairs,
maintenance, replacement and all other fees, costs, assessments, taxes and
expenses related to the Demised Premises during the Term and all Renewal Terms.
The Rental Amount and rents for all Renewal Terms shall be adjusted upward in an
amount sufficient to reimburse Landlord for the cost of sales, use or enjoyment
taxes levied by the government of the State of Florida during the term of this
Lease or any extension thereof, as well as other taxes levied by all regularly
constituted authorities, upon the underlying fee, the leasehold interest, or the
economic benefits therefrom, including but not limited to, sales taxes upon the
monthly Lease payments and economic benefits accruing to Landlord by Tenant's
payment of real estate taxes and insurance premiums. Failure of Landlord to
require these payments monthly shall not relieve Tenant of Tenant's obligation
for the payment of such amounts. The provisions in this Lease shall all be
construed to effect this "triple net lease" intent and purpose.
C. Tenant shall pay to Landlord on the Rent Commencement Date a security
deposit. The amount of the security deposit shall be the sum of $16,733.34, and
Tenant will keep continuously on deposit with the Landlord a sum which will
never be less than this original deposit, as security for the faithful
performance by the Tenant of Tenant's obligations, including, but not limited to
rental payments, under this Lease and for any Renewal Term, holdover or
occupancy of the Demised Premises. If the Landlord is obliged, or opts, to spend
any part of the security deposit to comply with provisions in this Lease which
the Tenant has failed to perform, the Tenant agrees to forthwith deposit such
additional sums as will keep the amount of the security deposit not less than
the amount originally deposited. After the date of the termination and
expiration of this Lease and all Renewal Terms, holdover or other occupancy and
upon the Demised Premises being vacated by the Tenant and all keys and
possession surrendered to the Landlord, and after the Tenant has paid all
amounts due under this Lease for rental or otherwise and complied with Tenant's
obligations, 30 days thereafter the Landlord agrees to return the security
deposit, less such amounts as the Landlord has expended or withheld pursuant to
the terms of this Lease and less all damages sustained by the Landlord on the
Demised Premises by reason of any breach by the Tenant of any of the terms of
this Lease. If the damages sustained exceed the deposit, the Tenant agrees to
immediately pay to the Landlord such excess. No interest will be paid to the
Tenant on the security deposit.
ARTICLE 4
TAXES
Tenant shall pay all real estate, sales, and other taxes and assessments
imposed upon or applicable to the Demised Premises and Rental Amount during the
Term and all Renewal Terms of this Lease as and when due and payable to the
applicable governing authority. Tenant shall pay all assessments and taxes in
any way caused by or related to Tenant's business, or use or occupancy of the
Demised Premises.
ARTICLE 5
CONDITION OF PREMISES
Tenant shall be responsible for paying any and all fines or penalties
assessed by any governmental authority if Tenant fails to keep the Demised
Premises in compliance with codes and regulations of governmental authorities
during the Term and any Renewal Terms of this Lease, excluding, however, fines
or penalties assessed with respect to code violations actually caused by
Landlord.
ARTICLE 6
REPAIRS AND MAINTENANCE
Tenant shall pay, provide, and be responsible for any and all repairs,
replacements, service and other matters relating to the heating, plumbing and
air conditioning systems on the Demised Premises and tenant shall maintain said
systems in at least as good a condition as presently exists. Tenant shall
provide, pay and be responsible for all glass repair, maintenance, and
replacement and for repair, maintenance and replacement of all roofs, walls,
floors, partitions, structural matters, equipment, electrical matters, plumbing
matters, heating and air conditioning matters, fixtures and buildings, in
addition to all paving and other on-site related matters. Tenant shall provide,
pay and be responsible for all maintenance and repairs to the Demised Premises
unless otherwise expressly herein provided and Tenant shall maintain and repair
the Demised Premises during the Term of this Lease and surrender them to
Landlord at the termination of said Lease in at least as good a condition as
presently exits. Normal wear and tear and condemnation is excepted but repairs
and maintenance necessitated by normal wear and tear shall be performed by
Tenant at Tenant's expense.
ARTICLE 7
ENVIRONMENTAL MATTERS
A. Tenant agrees to indemnify, defend and hold Landlord and its officers,
employees and agents harmless from any claims, judgments, damages, fines,
penalties, costs, liabilities (including sums paid in settlement of claims) or
loss including reasonable attorneys' fees, consultants' fees, and experts' fees,
which arise during or after the Term and any Renewal Terms in connection with
the presence or suspected presence of toxic or hazardous substances released
after the Rent Commencement Date on or at the Demised Premises or in the soil,
groundwater or soil vapor on or under the Demised Premises. Without limiting the
generality of the foregoing, this indemnification does specifically cover costs
incurred in connection with any investigation of site conditions and any
cleanup, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision because of the presence or
suspected presence of toxic or hazardous substances on or at the Demised
Premises or in the soil groundwater or soil vapor on or under the Demised
Premises.
B. Tenant shall comply with all applicable Environmental Laws in the use
and occupancy of the Demised Premises under this Lease.
ARTICLE 8
ALTERATIONS
Tenant shall not make any exterior or structural alterations in any portion
of the Demised Premises without, in each instance, first obtaining the written
consent of Landlord, which consent shall be in Landlord's discretion. All
alterations, additions and improvements shall unless otherwise provided herein
become, upon termination of this Lease, the property of Landlord, at the option
of the Landlord.
ARTICLE 9
FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, business equipment, inventory, trademarked items, signs
and other removable personal property installed in or on the Demised Premises by
Tenant, at its expense, shall remain the property of Tenant. Landlord agrees
that Tenant shall have the right, at any time or from time to time, to remove
any and all of such items. Tenant at its expense shall immediately repair any
damage occasioned by the removal of its fixtures and other personal property,
and upon expiration or earlier termination of this Lease, shall leave the
Demised Premises in a neat and clean condition, free of debris, normal wear and
tear excepted. Tenant shall pay before delinquency all taxes, assessments,
license fees and public charges levied, assessed or imposed upon its use,
occupation and business operation on the Demised Premises as well as upon its
trade fixtures, merchandise and other personal property in or upon the Demised
Premises.
ARTICLE 10
LIENS
Tenant shall not permit to be created nor to remain undischarged any lien,
encumbrance or charge arising out of any work or work claim of any contractor,
mechanic, laborer or material supplied by a materialman which might be, or
become, a lien or encumbrance or charge upon the Demised Premises.
ARTICLE 11
LAWS AND ORDINANCES
A. Tenant agrees to comply with all laws, ordinances, orders and
regulations affecting the use and occupancy of the Demised Premises and the
cleanliness, safety or operation thereof. Tenant covenants and agrees to comply
with the reasonable regulations and requirements of any insurance underwriting,
inspection bureau or similar agency at the request of the Landlord.
B. Tenant agrees not to (i) permit any illegal practice to be carried on or
committed on the Demised Premises; (ii) make use of or allow the Demised
Premises to be used for any purpose, except those for the purposes permitted
pursuant to Subparagraph D of Article 1, that might invalidate or increase the
rate of insurance therefor; (iii) use the Demised Premises for any purpose
whatsoever which might create a nuisance; (iv) deface or injure the building of
the Demised Premises; or (v) commit or suffer any waste.
ARTICLE 12
SERVICES
A. Tenant shall be solely responsible for and promptly pay all charges for
the use and consumption of water, sewer, gas, phone and electricity and all
other utility and other services used within or related to the Demised Premises.
B. Landlord shall not be liable to Tenant in damages or otherwise if the
said utilities or services are interrupted or terminated because of necessary
repairs, installations or improvements, or any cause beyond the Landlord's
reasonable control, nor shall any such interruption or termination relieve
Tenant of the performance of any of its obligations hereunder, except that if
Tenant is unable to operate its business as a result of interruption to services
caused by the negligence or willful misconduct of Landlord, its employees,
contractors or agents, there shall be an abatement of all rental obligations
hereunder during such time period.
ARTICLE 13
DAMAGE TO PREMISES
In the event the Demised Premises are hereafter damaged or destroyed or
rendered partially untenantable for their accustomed use, by fire or other
casualty, then Landlord shall within thirty (30) days after such casualty notify
Tenant of its determination to repair or not repair said Demised Premises. If
Landlord elects to repair the Demised Premises, it shall commence such repairs
within one hundred twenty (120) days after such casualty, to restore the Demised
Premises to substantially the condition in which the Demised Premises were
immediately prior to the occurrence of the casualty, at Landlord's option. From
the date of such casualty until the Demised Premises are so repaired and
restored, the Rental Amount payments and all other charges and items payable
hereunder shall equitably xxxxx to the extent that the portion of the Demised
Premises is rendered unusable by Tenant for its normal operations including
appropriate abatement for loss of use of parking areas and other portions of the
Demised Premises; provided, however, that if the destruction or damage was
caused by the act or omission to act of Tenant, its employees, agents,
contractors or invitees, there shall be no abatement of the Rental Amount. Any
and all insurance proceeds payable as a result of such destruction or damage
shall be paid directly to Landlord, excluding insurance proceeds attributable to
property owned by Tenant. If Landlord elects not to restore or repair the
Demised Premises, it shall so notify Tenant and the Lease shall terminate along
with Tenant's obligations to pay any Rental Amount due from and after the date
of such casualty.
ARTICLE 14
INSURANCE AND INDEMNITY
A. Tenant agrees to carry, during the Term hereof, insurance for fire,
extended coverage, vandalism and malicious mischief, insuring the improvements
in the Demised Premises and all appurtenances thereto for the full replacement
value thereof. Tenant shall name Landlord as the Insured and provide Landlord
with a copy of the insurance policy which shall not be cancellable without
thirty (30) day written notice from the insurance company to Landlord.
B. Tenant and all parties claiming under Tenant releases and discharges
Landlord from all claims and liabilities arising from or caused by any casualty
or hazard covered by Landlord's insurance on the Demised Premises or in
connection with property on or activities conducted on the Demised Premises, and
Tenant waives any right of subrogation which might otherwise exist in or accrue
to any person on account thereof. Each insurance policy procured hereunder shall
provide that the insurance company waives all right of recovery by way of
subrogation against either Landlord or Tenant in connection with any damage
covered by its policy. This waiver shall not be required if the insurance
carrier charges an additional premium in order to provide such waiver and the
party benefitting from the waiver does not agree to pay the additional premium.
C. Tenant hereby agrees to indemnify and hold Landlord harmless from any
and all claims, damages, liabilities or expenses arising out of or in connection
with Tenant's use of Demised Premises except to the extent covered and paid by
any of the foregoing insurance or to the extent caused by the negligence of,
wilful misconduct of or breach of the terms of this Lease by Landlord, its
employees, contractors or agents. Nothing contained in this provision, Article
14(C), shall apply with respect to claims, damages, liabilities or expenses
arising under, from or in connection with Environmental Laws, all of which shall
be governed solely by Article 7 above.
D. From the Rent Commencement Date and during the Term and all Renewal
Terms, Tenant shall maintain liability insurance covering the Demised Premises
for the protection of Landlord and Tenant as their interests may appear, with
limits of not less than $1,000,000.00 for death or injury to any one person,
$2,000,000.00 for death or injury to more than one person, and $1,000,000.00 for
property damage. Tenant shall promptly, within ten (10) days after the Rent
Commencement Date, provide Landlord with a certificate or certificates from the
insurer evidencing that all insurance is in force, that Landlord and tenant are
covered by such policy or policies as their interests may appear, and that such
policy or policies are noncancellable without thirty (30) days advance notice to
the Landlord, and, in the event that Tenant fails to furnish said certificates
to Landlord, this Lease shall be terminable at Landlord's option.
ARTICLE 15
ASSIGNMENT, SUBLETTING AND OWNERSHIP
Tenant shall have no right to assign this Lease or sublet all or any
portion of the Demised Premises unless Tenant has secured Landlord's prior
written approval, which approval Landlord may withhold in its sole discretion.
Any permitted assignee or sublessee shall expressly assume the obligations of
Tenant under the Lease and after such assignment or subletting, both Tenant and
the assignee or sublessee shall be jointly and severally liable for the
obligations of Tenant under the terms of the Lease.
ARTICLE 16
ACCESS TO PREMISES
Landlord may enter the Demised Premises during Tenant's business hours (or
at any time during emergencies) for purposes of inspection or to perform
maintenance and repair obligations, if any, imposed upon, or allowed to,
Landlord by this Lease; provided that Landlord shall not unreasonably interfere
with Tenant's business by such entry.
ARTICLE 17
DEFAULTS BY TENANT
A. The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay all or any portion of the Rental
Amount or any rental or make any other payment required to be made by
Tenant hereunder within ten (10) days after such payment is due.
(ii) A failure by Tenant to observe and perform any other material
provision of this Lease to be observed or performed by the Tenant, where
such failure continues for ten (10) days after written notice thereof by
Landlord to Tenant, except that this ten (10) day period shall be extended
for a reasonable period of time if the alleged default is not reasonably
capable of cure within said ten (10) day period and Tenant proceeds to
diligently cure the default; or
(iii) Subject to Tenant's rights under the applicable law then in
effect, the making by Tenant of any general assignment for the benefit of
creditors, the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt, or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days), the
appointment of a trustee or receiver to take possession that is not
restored to Tenant within thirty (30) days, or the attachment, execution or
other judicial seizure that is not discharged within thirty (30) days.
B. Upon the occurrence of any of the foregoing events of default, Landlord
shall have the option to pursue any one or more of the following remedies
without any notice or demand whatsoever.
(i) Subject to Tenant's rights under the applicable law then in
effect, terminate this Lease, in which event Tenant shall immediately
surrender the Demised Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which Landlord may have
for possession or arrearages in rent hereunder, enter upon and take
possession of the Demised premises and expel Tenant and any other person
who may be occupying said Demised premises or any part thereof, by force if
necessary, without being liable for prosecution of any claims or damage
therefor, and Tenant agrees to pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the Demised Premises on terms similar to
those of this Lease or otherwise;
(ii) Subject to Tenants rights under the applicable law then in
effect, with or without terminating the Lease, enter the Demised Premises
as the agent of Tenant, by force if necessary, without being liable to
prosecution or any claim for damages therefor, and relet the Demised
premises as the agent of Tenant, and receive rentals therefor, and Tenant
shall pay to Landlord any deficiency that may arise by reason of such
reletting, inclusive of costs and expenses (including reasonable attorneys'
fees and brokerage commissions and costs to improve the Demised Premises
for such reletting), on demand at any time and from time to time;
(iii) Subject to Tenant's rights under the applicable law then in
effect, with or without terminating the Lease, enter upon the Demised
Premises by force if necessary without being liable for prosecution of any
claim for damages therefor, and do whatever Tenant is obligated to do under
the terms of this Lease; and Tenant agrees to reimburse Landlord on demand
for any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, with interest at 18% per annum, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action; and
(iv) All remedies provided to Landlord under the applicable law.
ARTICLE 18
DEFAULTS BY LANDLORD
If Landlord should be in default in the performance of any of its
obligations under this Lease, which default continues for a period of more than
thirty (30) days after receipt of written notice from Tenant specifying such
default, or if such default is of a nature to require more than thirty (30) days
for remedy and continues beyond the time reasonably necessary to cure (and
Landlord has not undertaken procedures within such thirty (30) days period to
cure the default and diligently and continuously thereafter pursues such efforts
to complete cure), Tenant may, incur expenses reasonably necessary to perform
the obligation of Landlord specified in such notice and invoice Landlord for the
reasonable expenses or setoff said expense against the Rental Amount.
ARTICLE 19
SURRENDER OF PREMISES
Tenant shall, upon expiration of the Term granted herein, or any earlier
termination of this Lease pursuant hereto, surrender to Landlord the Demised
Premises, including, without limitation, all buildings and paving then upon the
Demised Premises, and all alterations, improvements and other additions which
may be made or installed by either party to, in, upon or about the Demised
Premises, other than trade fixtures, signs and other personal property which
remain the property of Tenant as provided in Article 9 hereof, without any
damage, injury or disturbance thereto, or payment therefor.
ARTICLE 20
EMINENT DOMAIN
In the event that any portion or all of the Demised Premises is taken by an
entity with the power of eminent domain or any portion or all of the Demised
Premises is obtained by an entity with the power of eminent domain, this Lease
will terminate as to that portion of the Demised Premises so taken or obtained
by the condemnor, with a pro rata reduction in the Rental Amount for the
remaining land based on the area acquired. However, if the portion of the
Demised Premises which is acquired by an entity with the power of eminent domain
renders the remainder of the Demised Premises unusable, then Tenant shall have
the right to terminate this Lease as to the entire Demised Premises. All monies,
awards, proceeds and other benefits from the acquisition of all or any portion
of the Demised Premises shall be owned by and paid to the Landlord.
In the event of termination of this Lease as to all or a portion of the
Demised Premises pursuant or related to any of the provisions in this Article,
the Tenant and Landlord shall be relieved of all obligations under this Lease as
to that portion of the Demised Premises for which the termination is effective,
except that Landlord shall continue after termination to be entitled to all
monies, awards, proceeds and other benefits from the acquisition as such
provision shall survive the termination and expiration of this Lease. Tenant is
aware that the Florida Department of Transportation (DOT) has acquired property
and rights from Landlord adjacent to the Demised Premises and the DOT will be
constructing matters adjacent to the Demised Premises. Further, Tenant consents
to Landlord's negotiation and settlement, whatever that may involve, with the
DOT as such may affect the Demised Premises.
ARTICLE 21
ATTORNEYS' FEES
In the event that at any time during the Term or any Renewal Terms of this
Lease either Landlord or Tenant shall institute any action or proceeding against
the other relating to the provisions of this Lease, or any default hereunder,
the unsuccessful party in any such action or proceeding wherein a final
adjudication is rendered by a court of law or equity, the unsuccessful party
agrees to reimburse the successful party for the reasonable expenses of
attorneys' fees and paralegal fees and disbursements incurred therein by the
successful party. Such reimbursement shall include all legal expenses incurred
prior to trial, at trial and at all levels of appeal and post judgment
proceedings. In the event the final adjudication is such that an "unsuccessful
party" cannot be determined from the order of the Court, then this Article 21
shall not apply.
ARTICLE 22
NOTICES
Notices and demands required, or permitted, to be sent to those listed
hereunder shall be sent by certified mail, return receipt requested, postage
prepaid, or by Federal Express or other reputable overnight courier service and
shall be deemed to have been given upon the date the same is postmarked if sent
by certified mail or the day deposited with Federal Express or such other
reputable overnight courier service, but shall not be deemed received until one
(1) business day following deposit with Federal Express or other reputable
overnight courier service or three (3) days following deposit in the United
States Mail if sent by certified mail, return receipt requested, to the
addresses shown below:
If to Tenant: FIRST CHOICE AUTO FINANCE, INC.
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
With Copy to:
If to Landlord: Xxxx Xxxxxx
Manheim Auctions
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
With Copy to: A. Xxxx Xxxxxxx, Esquire
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or at such other address requested in writing by either party upon thirty 930)
days' prior written notice to the other party.
ARTICLE 23
REMEDIES
All rights and remedies of Landlord herein created or otherwise existing at
law or equity are cumulative, and the exercise of one or more rights or remedies
may be exercised and enforced concurrently or consecutively and whenever and as
often as deemed desirable.
ARTICLE 24
SUCCESSORS AND ASSIGNS
All covenants, promises, conditions, representations and agreements herein
contained shall be binding upon, apply and inure to the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
ARTICLE 25
WAIVER
The failure of either Landlord or Tenant to insist upon strict performance
by the other of any or the covenants, conditions and agreements of this Lease
shall not be deemed a waiver of any subsequent breach or default in any of the
covenants, conditions and agreements of this Lease.
ARTICLE 26
HOLDING OVER
If Tenant or any party claiming under Tenant remains in possession of the
Demised Premises or any part thereof after any termination or expiration of this
Lease, Landlord, in Landlord's sole discretion, may treat such holdover as an
automatic renewal of this Lease for a month to month tenancy subject to all the
terms and conditions of this Lease provided herein except that the rental shall
increase by one hundred percent (100%) over the rental payable immediately prior
to such holdover.
ARTICLE 27
INTERPRETATION
The parties hereto agree that it is their intention hereby to create only
the relationship of Landlord and Tenant, and no provision hereof, or act of
either party hereunder, shall ever by construed as creating the relationship of
principal and agent, or a partnership, or a joint venture or enterprise between
the parties hereto. Further, neither party shall be considered the drafter of
this Lease for purposes of interpretation of all or any portion of the Lease.
ARTICLE 28
ZONING, DEED RESTRICTIONS, AND CONDITION OF DEMISED PREMISES
Tenant is satisfied that the Demised Premises can be used and occupied by
Tenant as contemplated under Subparagraph D of Article 1 of this Lease. Further,
Tenant accepts the Demised Premises in the condition they are in on the Rent
Commencement Date. No representation, statement or warranty, express or implied,
has been made by or on behalf of Landlord as to such condition, and as to the
use that may be made of the Demised Premises. In no event shall Landlord be
liable for any defect in such property or for any limitation of its use. The
taking of possession of the Demised Premises by Tenant shall be conclusive
evidence that Tenant accepts the same "as is" and that the Demised Premises was
in good condition at the time possession was taken.
ARTICLE 29
SEVERABILITY
Any provision of this Lease which is held by a court of competent
jurisdiction to be invalid, void or illegal shall in no way affect, impair or
invalidate any other provisions hereof and such other provisions shall remain in
full force and effect.
ARTICLE 30
GOVERNING LAW AND VENUE
This Lease shall be governed by the laws of Florida.
ARTICLE 31
BROKERS
Tenant and Landlord represent to each other that neither has had any
dealings with any real estate brokers or agents in connection with the
negotiation of this Lease except for Xxxxxx-Xxxxx, Inc. Landlord and Tenant
shall indemnify and hold each other harmless from and against any and all
liability and cost which the indemnified party may suffer in connection with
real estate brokers claiming by, through or under the indemnifying party for any
commission, fee or payment in connection with this Lease. Landlord shall pay a
brokerage fee or commission to Xxxxxx-Xxxxx, Inc.
ARTICLE 32
TIME OF THE ESSENCE
Time shall be of the essence in interpreting and complying with the
provisions of this Lease.
ARTICLE 33
ENTIRE AGREEMENT
This Lease contains all of the agreements of the parties hereto with
respect to matters covered or mentioned in this Lease and no prior agreement,
letters, representations, warranties, promises or understandings pertaining to
any such matters shall be effective for any such purpose. This Lease may be
amended or added to only by an agreement in writing signed by the parties hereto
or their respective successors in interest.
ARTICLE 34
RECORDING
Neither this Lease nor any memorandum of this Lease shall be recorded in
the Public Records. IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officer to execute this Lease Agreement on the day and year
first mentioned.
Signed, sealed and delivered
in the presence of:
FLORIDA AUTO AUCTION OF ORLANDO, INC.
d/b/a Imperial Auto Auction
/s/ Xxxx Xxxxx By: /s/ Xxxx X. Xxxxxx
-------------- ----------------------
(Signature) Xxxx X. Xxxxxx
Xxxx Xxxxx Its: V.P. Operations
(Print Name)
/s/ Xxxxxxx Xxxx
----------------
(Signature)
Xxxxxxx Xxxx
(Print Name) LANDLORD
FIRST CHOICE AUTO FINANCE, INC.
/s/ Xxxxxx Xxxxxxx
------------------
(Signature) By: /s/ Xxxx X. Xxxxx
Xxxxxx Xxxxxxx Title: President
(Print Name)
/s/ Xxxxx X. Xxxxxxxxx
----------------------
(Signature)
Xxxxx X. Xxxxxxxxx
(Print Name)
