EXHIBIT 6.45
SUBLEASE AGREEMENT
THIS AGREEMENT made this 22nd day of July, 1999, by and between Xxx
Xxxxxxx, hereinafter referred to as "Sub-lessor"; and 1-800-AutoTow Gulf Coast
East, Inc., a Florida Corporation with principal offices in Palm Beach County,
Florida, hereinafter referred to as "Tenant".
WHEREAS Sub-lessor leases from Xxxxx X.X. and Xxxx-Xxxx Xxxxxxxxx, the
owners of the real property located in Manatee County, which property has a
physical address of 0000 0xx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000.
WHEREAS the parties desire to enter a sublease agreement to define
their respective rights, duties and liabilities relating to the potion of the
premises to be subleased.
WHEREAS the parties agree that if for any reason the lease between the
Owner and the Sub-lessor is cancelled or not renewed, this sub-lease shall be
null and void.
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. Sub-lessor subleases to Tenant and Tenant hires and takes as Tenant
the agreed to portion of the premises at the above physical address, for a term
of thirty-six (36) 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, 2002 (hereinafter the termination date).
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2. This Sublease shall be automatically renewed on the same terms for
an additional twelve month period on the anniversary date first following the
termination date, and for an additional twelve month period thereafter unless
notice to the contrary is provided by the Tenant at least ninety (90) days in
advance of the termination date and each applicable anniversary of the
termination date thereafter. The Sub-lessee's failure to so notify the other
party will conclusively be deemed that party's affirmative agreement to extend
this Sublease.
3. The agreed to portion of the premises as described in Exhibit A
herein Subleased shall be for the exclusive use of Tenant.
RENT
4. The total amount due under the initial period of this Sublease
agreement is $55,800.00, payable at the rate of $1,550.00 per month plus
applicable sales/use tax. Tenant shall pay the above monthly rental sum in
advance.
PROPERTY ASSESSMENTS
5. All taxes assessed against the property by the Manatee County Tax
Appraiser's office shall be paid by Sub-Lessor on or before the due date of such
taxes. These include, but are not limited to, all assessments by City, County,
School, and/or Special Districts.
INSURANCE
6. Tenant shall be responsible for and required to maintain insurance
on its operations conducted on the property being Sub-leased. Such insurance
must include, but is not limited to: liability insurance against personal injury
for all persons on, within, or about the Subleased premises whether employees or
business invitees/licensees. Failure to maintain such insurance shall constitute
a breach of this agreement. Sub-lessor shall, at no expense to Sub-lessor, be
named an additional named insured on such policies of insurance.
USE OF PREMISES
7. Tenant shall use or permit the portion of the premises to be used
for all purposes consistent with a vehicle towing service and attendant repair
services. Tenant shall not perform any act or use the premises in any manner
that may be prohibited under fire, safety, health or sanitation codes or
regulations.
8. Tenant shall comply with all governmental laws, ordinances,
regulations and statutes affecting the portion of the premises either now or in
the future. Tenant shall not use the portion of the premises in any manner which
is unlawful and any such use shall terminate the Sublease immediately.
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9. Sub-lessor shall put Tenant in actual possession of the portion of
the premises 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 portion of the
premises for the entire term, subject to the terms of this Sublease. If for any
reason Sub-lessor does not deliver possession of the portion of the premises at
the commencement of the term, but does so deliver possession within thirty (30)
days of the commencement of the term of the Sublease, then this Sublease 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 portion of the premises to Tenant, in the event of late delivery
by Sub-lessor. Any delivery of the portion of the premises later than thirty
(30) days of the commencement of the term of the Sublease shall render this
Sublease voidable by Tenant, and Tenant may so void by providing Sub-lessor with
notice that such Sublease shall be void if the portion of the premises herein
Subleased by Tenant are not delivered within a period no less than five (5) days
after such notice. Sub-lessor shall not be liable to Tenant for any loss or
damage resulting from any failure of Sub-lessor to deliver the portion of the
premises to Tenant, except Sub-lessor shall promptly return any unearned sums
paid or deposited by Tenant.
10. In the event either party seeks enforcement of this Sublease
against the other party, then the prevailing party shall be awarded as damages
all costs and reasonable attorney's fees incurred in such enforcement.
11. Sub-lessor represents that there are no environmental violations
with respect to any prior usage of the premises and shall defend and hold Tenant
harmless for any claim made with respect to any such prior usage.
RESPONSIBILITIES OF PARTIES
12. Tenant shall provide and pay for its portion of the electric power,
water, sewage, garbage collection, and any and all costs or expenses of normal
maintenance of the portion of the property it Subleases subject to normal wear
and tear. Tenant shall also maintain its appliances, heating, air conditioning,
plumbing, water heater, telephone system, backup generator or the like in usable
and safe condition.
13. Tenant will keep the its portion of the premises 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 its portion of the premises in good repair, and at the end of
the term will deliver its portion of the premises in good order and condition,
reasonable use and wear alone excepted. Sub-lessor or his agents shall be
permitted at any time upon notice during the term hereby created to enter and
examine said premises at any reasonable hour of the day. Whenever necessary for
any repairs, servants and agents of the Sub-lessor 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.
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14. Tenant will not assign, transfer, or set over this Sublease, or
sublet all or any part of the premises, without explicit written agreement of
the Sub-lessor, which shall not be unreasonably withheld. Any attempt to
transfer, assign or set over this Sublease, or to sublet all or any part of the
premises without such explicit written agreement of the Sub-lessor shall
immediately terminate this Sublease, and Tenant shall remain responsible for all
sums due under this Sublease.
15. During the three months prior to the expiration of the term hereby
created, if notice to terminate has been given, Tenant will permit the
Sub-lessor or his agents to enter and show its portion of the premises 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. During the last thirty (30) days of the three month period
prior to the expiration of the term hereby created, Tenant will permit the
Sub-lessor or his agent to place upon the said premises any notice or sign of
"For Rent" or the like, and Tenant shall allow any such notice or sign to remain
there without hindrance or molestation until rented. Tenant will permit the
Sub-lessor or his agent to place upon the said premises any notice or sign of
"For Sale" or the like at any time, and Tenant shall allow any such notice or
sign to remain there without hindrance or molestation until such property is
sold.
CONDITION OF PREMISES
16. Sub-lessor's sole liability in the event that any portion of the
premises is denied use to Tenant by any governmental authority or agency shall
be a pro-rata abatement of rent.
17. Tenant shall not remove any Sublease hold improvements whether made
by Sub-lessor or Tenant, inclusive of window dressings, carpeting, wall
coverings, doors and all other such improvements, unless specifically agreed to
by Sub-lessor in writing.
18. Tenant shall, upon vacating its portion of the premises for any
reason, leave its portion of the premises in a clean, repaired, tenantable
condition, normal wear and tear excepted, and shall be responsible for all costs
or expenses necessary to place the premises in such condition, including such
reasonable charges as may be made by Sub-lessor for Sub-lessors time and efforts
to place such premises into such proper condition.
DAMAGE TO PREMISES
19. If the premises, during the term of this Sublease, are 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 its portion of
the premises 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 premises 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 Sub-lessor, who shall cause the damage to be
repaired with all convenient speed; but if the premises are so damaged 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.
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PROHIBITION AGAINST OTHER LIENS
20. In accordance with Florida Statutes at 713.10, TENANT IS
SPECIFICALLY PROHIBITED AGAINST CONTRACTING FOR ANY REPAIRS, CONSTRUCTION OR
IMPROVEMENTS WHEREIN THE PREMISES 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 premises, delivering goods and/or performing services. Tenant is
specifically not Sub-lessor's agent for any such repair or improvement, and is
without authority of any type or kind to commit to contracts on behalf of
Sub-lessor, or to subject the premises to any lien. Sub-lessor may cause a short
form of this Sublease to be recorded in the office of the Recording Clerk of the
county where the premises are located.
SUBORDINATION AND ATTORNMENT
Tenant agrees: (a) that, except as hereinafter provided, this Sublease
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 premises 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 Sub-lessor under this Sublease for the balance
then remaining of the Sublease Term, subject to all the terms of this Sublease
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 Sub-lessor 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 Sub-lessor, 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.
BREACH
21. Tenant shall breach this Sublease and shall be considered in
default if:
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(a) Tenant fails to pay any rent due within seven (7) days of
the date due, and after notice is received.
(b) Tenant fails to perform or comply with any of the
non-monetary covenants or conditions of this Sublease and such failure continues
for a period of thirty (30) days after receipt of notice thereof from
Sub-lessor;
(c) Breach by Tenant shall be deemed as a notice under
paragraph 22(a) as of the date of breach, if such breach is not cured timely by
Tenant, as provided in this Sublease Agreement;
22. In the event of a breach in the Sublease as set forth above, the
rights of the Sub-lessor shall be as follows:
(a) Sub-lessor shall have the right to terminate the Sublease
subject to paragraph 23 below, by giving to Tenant not less than thirty (30)
days notice. On expiration of the time fixed in the notice, the Sublease 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 Sublease 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 Subleased premises. 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.
23. Neither party shall have the right to cancel this Sublease 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
Sub-lessor's control, the Sub-lessor 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 premises, then the Sub-lessor shall have
reasonable additional time in which to cure such default.
24. If Tenant holds possession of the premises after the term of this
Sublease, 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 Sub-lessor or until Tenant has given to Sub-lessor 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.
25. If either party notifies the other as provided herein at section 2
of the intention not to extend such Sublease, then such Sublease shall terminate
on the termination date. Tenant shall timely remove from the premises, and shall
leave the premises in good and proper condition. Failure to so remove and leave
the premises 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 Sub-lessor shall not impair
Sub-lessors right to retake such premises or terminate tenancy or any other
right granted by the laws of the State of Florida or in this Sublease, without
regard to this paragraph.
26. 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.
27. The remedies herein given to the Sub-lessor shall be cumulative and
the exercise of any one remedy by the Sub-lessor shall not be to the exclusion
of any other remedy.
28. This Sublease 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
29. Sub-lessor may from time to time publish reasonable rules and
regulations necessary to maintain the safety, cleanliness, orderliness and good
functioning of the premises; and such rules and regulations shall be as binding
upon Tenant as if contained herein.
TENANT'S PROPERTY
30. Sub-lessor shall not be responsible or liable for any property of
Tenant, and Tenant shall maintain contents insurance upon said property within
the premises. Should Tenant fail to maintain such insurance, then in the event
of any loss, unless caused by Sub-lessor's negligence, Sub-lessor shall not be
liable, and Tenant hereby waives any claim or right of action against
Sub-lessor.
ATTORNEYS' FEES
31. 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.
Witnessed: "Tenant"
1-800-AutoTow Gulf Coast East, Inc.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Attorney at Law Treasurer
"Sub-lessor"
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, Sub-lessor
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