EXHIBIT 6.41
LEASE AGREEMENT
THIS AGREEMENT made this 28th day of July, 1999, by and between
XXXXXXXX XXXXXXXX, 12761 Nacogdoches, Xxx Xxxxxxx, Xxxxx 00000 in Bexar County,
Texas, hereinafter referred to as "Landlord"; and 1-800-AutoTow Gulf Coast S.W.,
Inc. d/b/a A-ACE TOWING, a Texas Corporation with principal offices at 0000 X.
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000 in Palm Beach County,
hereinafter referred to as "Tenant".
WHEREAS Landlord is the owner of the real property located in Bexar
County, Texas, which property has a physical address of 00000 Xxxxxxxxxxx, Xxx
Xxxxxxx, Xxxxx;
WHEREAS the parties desire to enter a lease agreement to define their
respective rights, duties and liabilities relating to the area.
WITNESSETH
IN CONSIDERATION of the mutual covenants contained herein and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties agree as follows:
1. Landlord leases to Tenant and Tenant hires and takes as Tenant the
area described in the Attachment at the above physical address, for a term of
twenty-four (24) months. The rental period shall begin on the 1st day of August,
(hereinafter the "anniversary date"), 1999, and shall end on the last day of
July, 2001 (hereinafter the termination date).
2. This lease shall be automatically renewed on the same terms, with a
five (5) percent increase in the lease payment, for an additional twelve month
period on the anniversary date first following the termination date, and on each
anniversary date thereafter unless notice to the contrary is provided by either
party to the other at least ninety (90) days in advance of the termination date
and each applicable anniversary of the termination date thereafter. However, all
future lease payment increases, other than the above referenced, must be agreed
to by both parties 90 days in advance of the termination date of the applicable
anniversary. Each party's respective failure to so notify the other party will
conclusively be deemed that party's affirmative agreement to extend this lease.
3. The area herein leased shall be for the exclusive use of Tenant.
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RENT
4. The total amount due under the initial period of this lease
agreement is $65,928.00, payable at the rate of $2,747.00 per month, on the
first day of each month.
INSURANCE
5. Landlord shall be responsible for and required to maintain property
coverage on the leasehold property. Tenant will indemnify Landlord against any
liability claims occurring due to the negligence of Tenant or Tenant's
employees.
USE OF AREA
6. Tenant shall use or permit the area to be used for all purposes
consistent with a vehicle towing service. Tenant shall not perform any act or
use the area in any manner that may be prohibited under fire, safety, health or
sanitation codes or regulations.
7. Tenant shall comply with all governmental laws, ordinances,
regulations and statutes affecting the area either now or in the future. Tenant
shall not use the area in any manner which is unlawful, and any such use shall
terminate the lease immediately.
8. Landlord shall put Tenant in actual possession of the area at the
beginning of the term and hereby covenants that Tenant, on paying the said rent
and performing the covenants herein agreed to, shall peacefully and quietly
have, hold and enjoy the said demised area for the entire term, subject to the
terms of this Lease. If for any reason Landlord does not deliver possession of
the area at the commencement of the term, but does so deliver possession within
thirty (30) days of the commencement of the term of the lease, then this lease
shall not be void or voidable. However, there shall be a proportionate reduction
in total rent covering the period between the commencement of the term and
actual delivery of the area to Tenant, in the event of late delivery by
Landlord. Any delivery of the area later than thirty (30) days of the
commencement of the term of the lease shall render this lease voidable by
Tenant, and Tenant may so void by providing Landlord with notice that such lease
shall be void if the area herein leased by Tenant are not delivered within a
period no less than five (5) days after such notice. Landlord shall not be
liable to Tenant for any loss or damage resulting from any failure of Landlord
to deliver the area to Tenant, except Landlord shall promptly return any
unearned sums paid or deposited by Tenant.
9. In the event either party seeks enforcement of this lease against
the other party, then the prevailing party shall be awarded as damages all costs
and reasonable attorney's fees incurred in such enforcement.
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10. Landlord represents that there are no environmental violations with
respect to any prior usage of the area and shall defend and hold Tenant harmless
for any claim made with respect to any such prior usage.
RESPONSIBILITIES OF PARTIES
11. Tenant will keep the area in a clean and healthy condition, in
accordance with the ordinances of the applicable municipal government or other
governing body and the direction of the proper authorities; Tenant will keep the
area in good repair, and at the end of the term will deliver the area in good
order and condition, reasonable use and wear alone excepted. Landlord or his
agents shall be permitted at any time upon notice during the term hereby created
to enter and examine said area at any reasonable hour of the day. Whenever
necessary for any repairs, servants and agents of the Landlord shall be
permitted to enter and to make the same. "Reasonable hours" shall be deemed to
be at least twenty-four hours advance notice to Tenant except for the making of
repairs.
12. Tenant will not assign, transfer, or set over this lease, or sublet
all or any part of the area, without explicit written agreement of the Landlord
which shall not be unreasonably withheld. Any attempt to transfer, assign or set
over this lease, or to sublet all or any part of the area without such explicit
written agreement of the Landlord shall immediately terminate this lease, and
Tenant shall remain responsible for all sums due under this lease.
13. During the three months prior to the expiration of the term hereby
created, if notice to terminate has been given, Tenant will permit the Landlord
or his agents to enter and show the area to persons desiring to rent the same
during reasonable hours of the day until rented. Any such showings shall be with
at least 24 hours advance notice whenever possible.
CONDITION OF AREA
14. Landlord's sole liability in the event that any portion of the area
is denied use to Tenant by any governmental authority or agency shall be a
pro-rata abatement of rent. If area is unavailable by more than 30 days, the
tenant shall have the option to terminate the lease.
15. Tenant shall not remove any leasehold improvements whether made by
Landlord or Tenant, inclusive of window dressings, carpeting, wall coverings,
doors and all other such improvements, unless specifically agreed to by Landlord
in writing.
16. Tenant shall, upon vacating the area for any reason, leave the area
in a clean, repaired, tenantable condition, normal wear and tear excepted, and
shall be responsible for all costs or expenses necessary to place the area in
such condition, including such reasonable charges as may be made by Landlord for
Landlords time and efforts to place such area into such proper condition.
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DAMAGE TO XXXX
00. If the area, during the term of this lease, is destroyed or damaged
by fire, storm or other unavoidable casualty so that they are rendered unfit for
Tenant, or in case Tenant shall be prevented from using the area by reason of
any action on the part of city or state officers, then the rent or a just
proportionate part thereof according to the nature and extent of the injury
sustained, shall be suspended or abated until the area shall have been put in
proper condition for use by Tenant, or until Tenant is permitted to resume use
by said city or state officers. In case of fire, Tenant shall give immediate
notice to the Landlord, who shall cause the damage to be repaired with all
convenient speed; but if the area be so damaged or rendered unusable and that
use by Tenant will be delayed by more than thirty (30) days, then Tenant shall
have the option to terminate and any prepaid rent unaccrued to the time of such
damage shall be refunded to Tenant together with Tenant's security deposit.
PROHIBITION AGAINST OTHER LIENS
18. Tenant is specifically prohibited against contracting for any
repairs, construction or improvements wherein the area may be subject to a lien
by any laborer, contractor or material supplier. All such persons shall
specifically waive any and all lien rights otherwise available under law as a
condition precedent to entering the area, delivering goods and/or performing
services. Tenant is specifically not Landlord's agent for any such repair or
improvement, and is without authority of any type or kind to commit to contracts
on behalf of Landlord, or to subject the area to any lien. Landlord shall cause
a short form of this lease to be recorded in the office of the Recording Clerk
of the county where the area is located.
SUBORDINATION AND ATTORNMENT
Tenant agrees: (a) that, except as hereinafter provided, this Lease is,
and all of Tenant's rights hereunder are and shall always be, subject and
subordinate to any mortgages or security instruments (collectively called
"Mortgage") that now exist, or may hereafter be placed upon the area or any part
thereof, and to all advances made or to be made thereunder and to the interest
thereon, and all renewals, replacements, modifications, consolidations, or
extensions thereof, now or at any future time, (b) that if the holder of any
such Mortgage ("Mortgagee") or if the purchaser at any foreclosure sale or at
any sale under a power of sale contained in any Mortgage shall at its sole
option so request, Tenant will attorn to, and recognize such Mortgagee or
purchaser, as the case may be, as Landlord under this Lease for the balance then
remaining of the lease Term, subject to all the terms of this Lease Agreement
and any extensions thereof; and (c) that the aforesaid provision shall be self
operative and no further instrument or document shall be necessary unless
required by any such Mortgagee or purchaser in which event Tenant shall execute
such instrument or document within ten (10) days after the request therefor.
Should Landlord or any Mortgagee or purchaser desire confirmation of such
subordination or attornment, as the case may be, Tenant upon written request,
and from time to time, will execute and deliver without charge and in form
satisfactory to Landlord, the Mortgagee or the purchaser all instruments and/or
documents that may be requested to acknowledge such subordination and/or
agreement to attorn, in recordable form.
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BREACH
19. Tenant shall breach this lease and shall be considered in default
if:
(a) Tenant fails to pay any rent due within seven (7) days of
receiving notice from the Landlord;
(b) Tenant fails to perform or comply with any of the
non-monetary covenants or conditions of this lease and such failure continues
for a period of thirty (30) days after receipt of notice thereof from Landlord;
20. In the event of a breach in the lease as set forth above, the
rights of the Landlord shall be as follows:
(a) Landlord shall have the right to terminate the lease
subject to paragraph 22 below, by giving to Tenant not less than thirty (30)
days notice. On expiration of the time fixed in the notice, the lease shall
terminate, except as to Tenant's liability, as of the date fixed in the notice
of cancellation; and
(b) All notices, demands or writings in this lease shall be
deemed to have been fully given when made in writing and deposited in U. S.
Mail, certified return receipt requested, to the addresses of the respective
parties first stated herein, or at the leased area. The addresses to which any
notice, demand or writing may be given as above provided may be changed by
written notice given by such party as above provided.
21. Neither party shall have the right to cancel this lease for default
of the other party unless such default remains for thirty (30) days after notice
in writing given such defaulting party specifying the nature of the default;
provided, however, that if, because of the circumstances beyond the Landlord's
control, the Landlord cannot cure the default on his part within such time, and
such default does not interfere with Tenant's use, occupancy and quiet enjoyment
of the demised area, then the Landlord shall have reasonable additional time in
which to cure such default.
22. If Tenant holds possession of the area after the term of this
lease, Tenant shall become a Tenant from month to month. Tenant shall continue
to be a month to month Tenant until the tenancy shall be terminated by the
Landlord or until Tenant has given to Landlord a written notice of at least one
(1) month, prior to the date of termination of the monthly tenancy of Tenant's
intention to terminate the tenancy.
23. If either party notifies the other as provided herein at section 2
of the intention not to extend such lease, then such lease shall terminate on
the termination date. Tenant shall timely remove from the area, and shall leave
the area in good and proper condition. Failure to so remove and leave the area
in good and proper condition shall conclusively establish that:
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(a) That Tenant has held over; and
(b) That Tenant has knowingly accepted as a month to month
rent such sum as may be permitted by statute in respect to the rent provided for
herein; and
(c) That such reliance by Landlord shall not impair Landlords
right to retake such area or terminate tenancy or any other right granted by the
laws of the State of Florida or in this lease, without regard to this paragraph.
24. The covenants and condition herein contained shall, subject to the
provisions as to assignment, transfer, subletting, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto. All of
the parties hereto shall be jointly and severally liable hereunder.
25. The remedies herein given to the Landlord shall be cumulative and
the exercise of any one remedy by the Landlord shall not be to the exclusion of
any other remedy.
26. This lease shall at all times be construed and subject to the laws
of the State of Florida. Any provision contained herein which conflicts with
such laws shall be construed in the manner required by any such law, and such
law shall control in lieu of any provision.
RULES AND REGULATIONS
27. Landlord may from time to time publish reasonable rules and
regulations necessary to maintain the safety, cleanliness, orderliness and good
functioning of the area; and such rules and regulations shall be as binding upon
Tenant as if contained herein.
TENANT'S PROPERTY
28. Landlord shall not be responsible or liable for any property of
Tenant, and Tenant shall maintain contents insurance upon said property within
the area. Should Tenant fail to maintain such insurance, then in the event of
any loss, unless caused by Landlord's negligence, Landlord shall not be liable,
and Tenant hereby waives any claim or right of action against Landlord.
ATTORNEYS' FEES
29. If any action at law or in equity is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, investigatory expenses in addition to
any other relief that may be available.
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IN WITNESS WHEREOF, the parties hereto set their hands and seals the
day and date set forth above.
"Tenant"
1-800-AutoTow Gulf Coast S.W., Inc.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
"Landlord"
Xxxxxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx, Landlord
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