SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): June 27, 1997
SMART CHOICE AUTOMOTIVE GROUP, INC.
(Exact Name of Registrant as Specified in Charter)
FLORIDA 1-14082 59-1469577
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
5200 SOUTH WASHINGTON AVENUE, TITUSVILLE, FLORIDA 32780
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (407) 269-9680
N/A
(Former name, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On June 27, 1997, Smart Choice Automotive Group, Inc. (the
"Registrant") acquired substantially all of the assets owned or used by Strata
Holding, Inc. and Ready Finance, Inc. (both Florida corporations ("the
Sellers")) in selling, leasing and financing the sale or lease of used
automobiles and other consumer vehicles (the "Business"). The following summary
of the transaction is qualified in its entirety by the more detailed information
contained in the copy of the Asset Purchase Agreement attached as Exhibit 10.1
to this Current Report.
Included among the assets acquired are accounts receivable, inventory,
property, plant and equipment, and goodwill. The Registrant will use the assets
in the sale and financing of used automobiles and other consumer vehicles.
As consideration for the assets acquired, the Registrant (i) paid the
Sellers cash in the aggregate amount of approximately $3.2 million, (ii)
satisfied bank debt of the Seller in the aggregate amount of approximately $1.8
million, and (iii) issued to Ready Finance, Inc. a Subordinated Note in the
amount of $3,680,089 and a Secured Note in the amount of $1,200,000, each of
which bear an annual interest rate of 9% on the outstanding principal amount.
The principal amount of each note is amortized over a fifteen year period and is
payable in equal monthly installments, accrued interest and the unpaid principal
balance is due on the second anniversary of the issue date. In addition, the
Registrant assumed certain trade payables and other ordinary course indebtedness
of the Sellers. The amount of consideration paid by the Registrant for the
assets of the Sellers was determined through arms' length negotiations between
representatives of the Registrant and the Sellers.
The transaction was financed through the proceeds of a credit facility
(the "Credit Facility") made available to the Registrant in February 1997 by
Finova Capital Corporation. The Credit Facility provides for a $35 million
revolving line of credit, and matures in 1999. Borrowings under the Credit
Facility bear interest at a rate equal to the prime rate plus 3.0 points.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of the acquired Business will be
provided within the next sixty (60) days as an amendment to this filing.
(b) Pro Forma Financial Information.
The unaudited pro forma condensed consolidated
balance sheet and income statement of the Registrant,
will be provided within the next sixty (60) days as
an amendment to this filing.
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EXHIBIT DESCRIPTION
10.1 Asset Purchase Agreement,
dated as of June 27, 1997
between Smart Choice
Automotive Group, Inc.,
Strata Holding, Inc., Ready
Finance, Inc., Donald Cook,
Marilyn Cook and Madie A.
Stratemeyer.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /S/ NEAL HUTCHINSON
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Title: CORPORATE COUNSEL
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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BETWEEN
SMART CHOICE AUTOMOTIVE GROUP, INC.,
AND
STRATA HOLDING, INC.
READY FINANCE, INC.
DONALD COOK
MARILYN COOK
AND
MADIE A. STRATEMEYER
DATED JUNE 27, 1997
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "AGREEMENT") entered into this 27th
day of June, 1997 by and among Smart Choice Automotive Group, Inc., a Florida
corporation (the "BUYER"), Strata Holding, Inc., a Florida corporation, and
Ready Finance, Inc., a Florida corporation (collectively, the "SELLERS"), and
Donald Cook, Marilyn Cook and Madie A. Stratemeyer (each of such individuals
being hereinafter referred to individually as a "SHAREHOLDER" and collectively
as the "SHAREHOLDERS"). Terms used herein and not otherwise defined shall have
the meanings set forth in ARTICLE IX.
RECITALS
A. The Sellers are engaged in a business consisting of selling, leasing
and financing the sale or lease of used automobiles and other consumer vehicles
(the "BUSINESS").
B. The Shareholders are the record and beneficial owners of all of the
issued and outstanding capital stock of the Sellers, and as such will derive
substantial benefit from the transactions contemplated by this Agreement.
C. The Sellers desire to sell substantially all of their assets and
properties and the Business to the Buyer, and the Buyer desires to purchase such
assets and properties and the Business as a going concern from the Sellers, all
upon the terms and conditions set forth in this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 PURCHASED ASSETS. Subject to the terms and conditions of this
Agreement, the Sellers hereby sell, transfer, convey, assign and deliver to the
Buyer at Closing (as defined in SECTION 1.9), and the Buyer hereby purchases and
receives from the Sellers, the Finance Contracts listed on SCHEDULE 1.1(A), the
Inventory (as hereafter defined), the tangible assets, parts, properties and
improvements of every kind and description, whether real, personal or mixed,
tangible or intangible, all of the fixed assets, wherever located (except those
assets of the Sellers which are specifically excluded as provided in SECTION 1.2
hereof), the business as a going concern and all goodwill associated therewith
as the same shall exist on the Closing Date (as defined in SECTION 1.9), whether
or not appearing on the Current Balance Sheet (as defined in SECTION 2.5)
(collectively, the "PURCHASED ASSETS"). Without limiting the generality of the
foregoing, the Purchased Assets shall include the following:
(a) all Finance Contracts of the Sellers as listed in SCHEDULE
1.1(A), including receivables arising as a result of contracts in transit and
installment sales contracts;
(b) other receivables of the Sellers, including trade account
receivables, notes receivables (other than Finance Contracts), insurance
proceeds, service contract providers, vendors or suppliers of the Sellers,
rights to receive payment (including any related guaranties,
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security deposits or other collateral therefor) under credit agreements,
finance leases and other such agreements (collectively, the "RECEIVABLES");
(c) all inventories of the Sellers, including without limitation,
all inventories of parts and accessories, used vehicles and contracts in transit
(net of drafts in transit) as shown in SCHEDULE 1.1(C) (collectively, the
"INVENTORY");
(d) all goods, machinery, equipment, tools, supplies, furniture,
furnishings, trade fixtures and fixed assets located at or on the Owned
Properties or Leased Premises regardless of whether or not the same may be
affixed to the Owned Properties or the Leased Premises or may be considered to
be fixtures under applicable real property law and other fixed assets to the
Sellers as shown in SCHEDULE 1.1(D) (the "FIXED Assets");
(e) all of the interest, rights and benefits accruing to the
Sellers under any sales orders, sales contracts, service agreements, extended
warranty contracts, purchase orders and purchase commitments made for the
benefit of the Sellers, all other agreements to which the Sellers are a party or
by which they are bound and other causes in action, or other contract rights,
commitments and claims of the Sellers including rights as lessee under the Real
Estate Leases, any equipment leases and vehicle lease, and rights under
manufacturer's warranties and other rights of every kind of the Sellers;
(f) all software, books, records, printouts, drawings, data, files,
notes, notebooks, accounts, invoices, correspondence and memoranda relating to
the Purchased Assets and or the Business of the Sellers, and all operating data,
including without limitation, all data pertaining to customer lists and records,
financial, accounting and credit records, budgets and other similar documents
and records;
(g) all of the proprietary rights of the Sellers, including without
limitation, all trademarks, tradenames, customer list, supplier list, technical
information, patents, patent applications, licenses thereof, trade secrets,
technology, know-how, formulae, designs and drawings, computer software,
slogans, copyrights, processes, operating rights, and other such knowledge and
information constituting the "know-how" of the Sellers, and the goodwill of the
Sellers, other licenses and permits and other similar intangible property rights
relating to the products or business of the Sellers;
(h) all prepaid and deferred items of the Sellers including without
limitation, prepaid rentals, insurance, taxes, and unbilled charges and deposits
relating to the operations of the Sellers; and
(i) all other rights and assets of any kind, tangible or
intangible, of the Sellers, whether or not reflected in the Sellers' financial
statements or on its books and records.
1.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary set forth
in SECTION 1.1, the Purchased Assets shall exclude the corporate minute books of
the Sellers, all Finance Contracts not listed on Schedule 1.1(A), and all
Inventory not listed on Schedule 1.1(C) (the "EXCLUDED ASSETS").
1.3 ASSUMED LIABILITIES. At the Closing, the Buyer shall assume only
those liabilities listed in SCHEDULES 1.3(A), (C) and (E) (collectively, the
"ASSUMED LIABILITIES"):
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(a) all trade accounts payable by the Sellers which are set forth
on SCHEDULE 1.3(A) hereto;
(b) all payroll and related federal and state withholding taxes for
the Sellers' payroll which accrue from and after the Closing Date; if any;
(c) all liabilities of the Sellers from and after the date hereof
as lessee under its outstanding lease (the "REAL ESTATE LEASE") for its business
premises (the "LEASE PREMISES") and those outstanding vehicle and equipment
leases or financing agreements listed on SCHEDULE 1.3(C) hereto;
(d) all ongoing customer repair obligations incurred by the Sellers
prior to the Closing Date in the normal course of business (other than any
claims, repairs or other obligations related to fraud or fraudulent activities);
and
(e) all other executory contracts, service contracts, orders and
commitments which in any instance are for the purchase of inventory and/or
supplies or the rendition of services to the Sellers, which have been entered
into by the Sellers in the normal course of business and are listed on SCHEDULE
1.3(E) hereto.
Annexed hereto as SCHEDULES 1.3(A), (C) and (E) are correct and complete
listings of all of the Assumed Liabilities.
1.4 EXCLUDED LIABILITIES. Notwithstanding anything to the contrary
contained in SECTION 1.3 above, the Buyer shall not assume, or become in any way
liable for, the payment or performance of any debts, liabilities or obligations
(absolute or contingent) of the Sellers (a) in the nature of customer claims,
employee claims or other contingent liabilities arising out of or relating to
any operations of the Sellers prior to the date hereof, except to the extent
specifically assumed pursuant to SECTION 1.3 above, (b) relating to any lease
obligations of any kind other than obligations for periods on and after the date
hereof under the Real Estate Lease, (c) under or relating to any lien or other
arrangement under which the Sellers are or may be borrowers, (d) except to the
extent assumed pursuant to SECTION 1.3(b) above, relating to any federal, state
or local income, franchise, sales, use, property, excise, transfer or other
taxes payable by or in respect of the Sellers, including but not limited to any
such taxes which may be assessable against the Sellers arising out of, in
connection with or as a result of the transactions contemplated by this
Agreement and/or the consummation thereof, (f) relating to or arising out of any
pending claims, actions, arbitrations and/or other proceedings against the
Sellers, (g) relating to recapture of any depreciation deduction or investment
tax credit of the Sellers, (h) under or in respect of any benefit plans now or
heretofore maintained by the Sellers in respect of or for the benefit of any of
its employees, or (i) not specifically assumed by the Buyer in SECTION 1.3
above.
1.5 PURCHASE PRICE. The purchase price for the Purchased Assets
(collectively, the "PURCHASE Price") is the sum of (a) $5,000,000 cash less the
amount required to pay First United Bank and all of the Sellers' other
indebtedness for borrowed money, the net amount being paid to the Sellers by
certified or bank cashier's check and delivered to the Sellers concurrently with
the execution and delivery of this Agreement or by wire transfer of immediately
available funds to the Sellers' designated account on the date hereof; and (b)
one or more promissory notes (the "NOTES") made by the Buyer in favor of the
Sellers in the original aggregate principal amount of
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$4,880,089 in the form of EXHIBIT 1.5(A) and (B) and the Loan and Security
Agreement in the form of EXHIBIT 1.5(C) hereto.
1.6 NET PRICE. The foregoing Purchase Price for the Purchased Assets
shall be in addition to the assumption of the Assumed Liabilities.
1.7 ALLOCATION OF CONSIDERATION. The Purchase Price shall be allocated
among the Purchased Assets in accordance with SCHEDULE 1.7 hereto.
1.8 APPLICATION OF CERTAIN PROCEEDS. To the extent required in order to
permit the transfer and delivery of the Purchased Assets free and clear of all
liens, pledges, claims, security interests and encumbrances, the Sellers shall
utilize all or a portion of the Purchase Price to repay any obligations for
which any of the Purchased Assets constitute collateral (including, without
limitation, any line of credit or other arrangement under which the Sellers are
or may be a borrower).
1.9 TIME AND PLACE OF THE CLOSING. The Closing of the sale of the
Purchased Assets shall take place at the offices of Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A., 1221 Brickell Avenue, Miami, Florida 33131, on
Thursday, June 27, 1997, following the fulfillment or waiver of such conditions,
or such other date, time and place as the parties may mutually agree. Throughout
this Agreement such event is referred to as the "CLOSING" and such date and time
are referred to as the "CLOSING DATE."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS AND THE SHAREHOLDERS
In connection with the sale of the Purchased Assets to the Buyer, the
Sellers and the Shareholders hereby jointly and severally make all of the
representations and warranties to the Buyer as shown in EXHIBIT A hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE BUYER
In connection with the Buyer's purchase of the Purchased
Assets from the Sellers, the Buyer hereby makes all of the representations and
warranties to the Sellers and the Shareholders as shown in EXHIBIT B hereto.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 BILLS OF SALE; ASSUMPTION AGREEMENTS. The parties hereby confirm
that this Agreement shall be sufficient as a bill of sale in respect of the
Purchased Assets and as an assumption agreement in respect of the Assumed
Liabilities; PROVIDED, HOWEVER, that if, as and when required, or reasonably
requested by any party, the parties shall execute and deliver such
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assignment of contracts, supplemental agreements, instruments, certificates of
title and other documents as may be necessary or appropriate in order to give
effect to the transfer of the Purchased Assets to the Buyer and the assignment
to and assumption by the Buyer of the Assumed Liabilities.
4.2 CERTIFICATES OF TITLE. Concurrently with the execution and delivery
of this Agreement, the Buyers are preparing a closing checklist of items needed
to be executed and delivered at closing, the Sellers are delivering to the Buyer
the properly endorsed certificates of title and/or other evidences of ownership
of all vehicles in the Inventory, and any and all vehicles constituting part of
the Fixed Assets, all of which title documents shall contain all necessary
endorsements to effect the removal of any liens or encumbrances on any such
vehicles. The Buyer shall be responsible for effecting the recordation of such
certificates and the reissuance (as required) of new certificates of title for
such vehicles in the name of the Buyer and the Seller shall be responsible for
the payment of any applicable transfer taxes in connection therewith.
4.3 AUDIT OF FINANCIAL STATEMENTS. The Sellers shall, from time to time
as and when requested by the Buyer from and after the date hereof, (a) permit
the Buyer and its accountants to have access to all books and records of the
Sellers for the purpose of performing an audit of the Sellers and/or the
Financial Statements sufficient to enable such accountants to render their
unqualified opinion on the financial statements of the Business for all periods
from and after January 1, 1994 in accordance with Regulation S-X promulgated
under the Securities Act of 1933, as amended, and (b) permit the Buyer and their
accountants to obtain copies of all work papers utilized or prepared by the
Sellers' accountants in connection with their review of the Financial
Statements, and consult with the Sellers' accountants as and to the extent
necessary or appropriate in connection with the preparation of the audited
financial statements contemplated by this SECTION 4.3.
4.4 OTHER ACTIONS. Each of the parties hereto shall use its reasonable
efforts to take, or cause to be taken, all appropriate actions, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated herein, including, without limitation, using its best efforts to
obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of any Governmental Authority and parties to contracts
with the Sellers as are necessary for the consummation of the transactions
contemplated hereby. Each of the parties shall make on a prompt and timely basis
all governmental or regulatory notifications and filings required to be made by
it for the consummation of the transactions contemplated hereby. The parties
also agree to use their best efforts to defend all lawsuits or other legal
proceedings challenging this Agreement or the consummation of the transactions
contemplated hereby and to lift or rescind any injunction or restraining order
or other order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby.
4.5 RESTRICTIVE COVENANTS. In order to assure that Buyer will realize
the benefits of the transactions contemplated hereby, the Sellers and the
Shareholders hereby jointly and severally agree with the Buyer that they will
not:
(a) during the Restricted Period, directly or indirectly, alone or
as a partner, joint venturer, officer, director, member, employee, consultant,
agent, independent contractor or shareholder of, or lender to any used car
business, engage in selling, leasing, or servicing used
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vehicles (unless ancillary to new car sales) or in the wholesale or retail
supply of parts with respect thereto (unless ancillary to new car sales)
anywhere in the Restricted Territory;
(b) during the Restricted Period, directly or indirectly employ, or
permit any business directly or indirectly controlled by it, to knowingly
employ, any person who was employed by the Sellers, Buyer or any Affiliate of
the Sellers or Buyer at or within the prior six months, or in any manner seek to
induce any such person to leave his or her employment;
(c) during the Restricted Period, directly or indirectly, in any
way utilize, disclose, copy, reproduce or retain in their possession the
Sellers' proprietary rights or records, including, but not limited to any
customer lists; provided, however, that the Shareholders shall be allowed
reasonable access to review and copy such records for purposes of litigation and
tax audits, but with respect to any litigation against or adverse to Buyer or
any of its Affiliates such access shall be only to the extent required under
laws and rules of procedure and discovery applicable to such proceeding.
For purposes of this SECTION 4.5, (a) the "RESTRICTED PERIOD" shall mean for the
Shareholders, the period beginning on the Closing Date and ending on the third
anniversary of the Closing Date, and (b) the "RESTRICTED TERRITORY" shall mean
within fifty (50) miles of any used car sales or finance location of the Buyer
in the State of Florida. The Shareholders agree and acknowledge that the
restrictions contained in this SECTION 4.5 are reasonable in scope and duration
and are necessary to protect the Buyer and after the Closing Date. If any
provision of this SECTION 4.5, as applied to any party or to any circumstance,
is adjudged by a court to be invalid or unenforceable, the same will in no way
affect any other circumstance or the validity or enforceability of the remainder
of this Agreement. If any such provision, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced. The parties agree and acknowledge that the
breach of this SECTION 4.5 will cause irreparable damage to Buyer and upon
breach of any provision of this SECTION 4.5, Buyer shall be entitled to
injunctive relief, specific performance or other equitable relief, provided,
however, that the foregoing remedies shall in no way limit any other remedies
which Buyer may have (including, without limitation, the right to seek monetary
damages).
4.6 SHAREHOLDERS' AND DIRECTORS' VOTE. The Shareholders, in executing
this Agreement, consent as directors and/or shareholders of the Sellers to the
Sellers' sale of the assets, other transactions contemplated hereby, and waive
notice of any meeting in connection therewith.
4.7 ENVIRONMENTAL ASSESSMENT. Buyer shall be entitled to conduct for a
period of thirty (30) days subsequent to the Closing Date, an environmental
assessment of the Owned Properties and Leased Premises (hereinafter referred to
as "ENVIRONMENTAL ASSESSMENT") that shall be in form and substance satisfactory
to the Buyer. The Environmental Assessment may include, but not be limited to, a
physical examination of the Owned Properties and Leased Premises, and any
structures, facilities, or equipment located thereon, soil samples, ground and
surface water samples, storage tank testing, review of pertinent records
(including but not limited to, off-site disposal records and manifests),
documents, and Licenses of the Sellers. If the Environmental Assessment
identifies Recognized Environmental Conditions (as defined by ASTM Standard
Practice E-1527) which require remediation or further evaluation under the
Environmental Laws,
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then Buyer shall notify the Sellers and the Shareholders in writing and the
Sellers and the Shareholders shall fully indemnify and hold harmless the Buyer
for identified Recognized Environmental Conditions and shall be financially
responsible for the remediation of all Recognized Environmental Conditions which
remediation is, may or would be required by any appropriate governmental agency.
Buyer's failure or decision not to conduct any such Environmental Assessment
shall not affect any representation or warranty of the Sellers or the
Shareholders under this Agreement.
4.8 LANDLORD'S CONSENT. The Sellers and the Shareholders shall, within
30 days after the Closing Date, obtain the consent of all of the landlords of
the Leased Premises to the transactions contemplated hereby, which consent shall
be substantially in the form provided by the Buyer.
4.9 CONSULTING AGREEMENT. Donald Cook and the Buyer shall have executed
the Consulting Agreement in the form of EXHIBIT 4.9 hereto.
4.10 NON-COMPETITION AGREEMENT. Donald Cook and the Buyer shall have
executed the Non-Competition Agreement in the form of EXHIBIT 4.10 hereto.
ARTICLE V
INDEMNIFICATION
5.1 GENERAL.
(a) Without prejudice to any rights of contribution as among the
Sellers and the Shareholders, the Sellers and the Shareholders shall jointly and
severally defend, indemnify and hold harmless the Buyer from, against and in
respect of any and all claims, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorneys' fees, that the Buyer may incur, sustain or suffer
(collectively, "LOSSES") as a result of (i) any breach of any of the
representations and warranties herein or in any schedule(s) furnished by or on
behalf of the Sellers or the Shareholders under this Agreement, or the failure
by the Sellers or the Shareholders to perform, any of the covenants or
agreements of the Sellers or the Shareholders contained in this Agreement and
other agreements delivered at closing, or (ii) any failure by the Sellers to pay
or perform when due any of its retained liabilities.
(b) The Buyer shall defend, indemnify and hold harmless the Sellers
and the Shareholders from, against and in respect of any and all claims, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorneys' fees, that the Sellers
or the Shareholders may incur, sustain or suffer as a result of (i) any breach
of any of the representations and warranties herein, or the failure by the Buyer
to perform, any of the covenants or agreements of the Buyer contained in this
Agreement, or (ii) any failure by the Buyer to pay or perform when due any of
the Assumed Liabilities.
5.2 CLAIMS FOR INDEMNITY. Whenever a claim shall arise for which any
party shall be entitled to indemnification hereunder, the indemnified party
shall notify the indemnifying party or parties in writing promptly of the
indemnified party's first receipt of notice of, or the indemnified party's
obtaining actual knowledge of, such claim, and in any event within such shorter
period as may be necessary for the indemnifying party or parties to take
appropriate action to resist such claim. Such notice shall specify all facts
known to the indemnified party giving rise to such
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indemnity rights and shall estimate (to the extent reasonably possible) the
amount of potential liability arising therefrom. If an indemnifying party shall
be duly notified of such dispute, the parties shall attempt to settle and
compromise the same and any rights of indemnification established by reason of
such settlement, compromise or arbitration shall promptly thereafter be paid and
satisfied by those indemnifying parties obligated to make indemnification
hereunder.
5.3 RIGHT TO DEFEND. If the facts giving rise to any claim for
indemnification shall involve any actual or threatened action or demand by any
third party against the indemnified party or any of its affiliates, the
indemnifying party or parties shall be entitled (without prejudice to the
indemnified party's right to participate at its own expense through counsel of
its own choosing), at their expense and through a single counsel of their own
choosing, to defend or prosecute such claim in the name of the indemnifying
party or parties, or any of them, or if necessary, in the name of the
indemnified party. In any event, the indemnified party shall give the
indemnifying party advance written notice of any proposed compromise or
settlement of any such claim. If the remedy sought in any such action or demand
is solely money damages, the indemnifying party shall have fifteen (15) days
after receipt of such notice of settlement to object to the proposed compromise
or settlement, and if it does so object, the indemnifying party shall be
required to undertake, conduct and control, though counsel of its own choosing
and at its sole expense, the settlement or defense thereof, and the indemnified
party shall cooperate with the indemnifying party in connection therewith. The
Buyer shall be entitled to set-off against the Notes, the Consulting Agreement
and/or the Real Estate Leases for all claims, losses, expenses and costs of
indemnification or for breach of any of the Sellers' and Shareholders' covenants
contained herein. The Sellers' and the Shareholders' representations and
warranties in SECTION 2.20 in EXHIBIT A hereto shall expire on the fifth
anniversary of the Closing Date. All of the other Sellers' and Shareholders'
representations and warranties shall survive the Closing.
ARTICLE VI
POST-CLOSING EVENTS
6.1 ANNOUNCEMENTS. No party hereto shall make any disclosure or public
announcement of the consummation of the transactions pursuant to this Agreement,
or of any of the terms thereof, without the prior review and approval thereof by
the other party, and such approval shall not be unreasonably withheld or
delayed.
6.2 FURTHER ASSURANCES. From time to time from and after the date
hereof, the parties will execute and deliver to one another any and all further
agreements, instruments, certificates and other documents as may reasonably be
requested by any other party in order more fully to consummate the transactions
contemplated hereby, and to effect an orderly transition of the Business to the
Buyer hereunder. Without limitation of the foregoing, the Sellers shall
cooperate with the Buyer in order to cause the local telephone company to
transfer to the Buyer's name and account all telephone numbers and fax numbers
currently held by the Sellers (provided that the Buyer acknowledges that the
transfer of such telephone numbers and fax numbers is in the discretion of the
local telephone companies).
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ARTICLE VII
COSTS
7.1 FINDER'S OR BROKER'S FEES. Each of the Buyer, the Sellers and the
Shareholders represent and warrant that neither they nor any of their respective
affiliates have dealt with any broker or finder in connection with any of the
transactions contemplated by this Agreement, and no broker or other person is
entitled to any commission or finder's fee in connection with any of these
transactions.
7.2 EXPENSES. The Buyer, the Sellers and the Shareholders shall each
pay all costs and expenses incurred or to be incurred by them, respectively, in
negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement.
ARTICLE VIII
FORM OF AGREEMENT
8.1 EFFECT OF HEADINGS. The section headings used in this Agreement and
the titles of the schedules hereto are included for purposes of convenience
only, and shall not affect the construction or interpretation of any of the
provisions hereof or of the information set forth in such Schedules.
8.2 ENTIRE AGREEMENT; WAIVERS. This Agreement and the other agreements
and instruments referred to herein constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersede all prior
agreements or understandings as to such subject matter. No party hereto has made
any representation or warranty or given any covenant to the other except as set
forth in this Agreement, the schedules hereto, and the other agreements and
instruments referred to herein. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
8.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
ARTICLE IX
DEFINITIONS
9.1 DEFINED TERMS. As used herein, the following terms shall have the
following meanings:
"Above Ground Storage Tank" shall have the meaning set forth in
SECTION 2.20(F) of EXHIBIT A hereto.
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
"Assumed Liabilities" shall have the meaning set forth in SECTION
1.3.
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"Closing Date" shall have the meaning set forth in SECTION 1.9.
"Closing" shall have the meaning set forth in SECTION 1.9.
"Code" means the Internal Revenue Code of 1986, as amended.
"Current Balance Sheet" shall have the meaning set forth in SECTION
2.5 of EXHIBIT A hereto.
"Discharge" shall have the meaning set forth in SECTION 2.20(F) of
EXHIBIT A hereto.
"Environmental Assessment" shall have the meaning set forth in
SECTION 4.7.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Excluded Assets" shall have the meaning set forth in SECTION 1.2.
"Finance Contracts" mean the installment sales contracts held by
the Sellers as of the Closing Date and listed on SCHEDULE 1.1(A) hereto which
are secured by vehicles sold by the Sellers. The term "contracts" shall be
deemed to include and the Sellers shall convey to the Buyer in the purchase and
sale of the Purchased Assets hereunder:
(a) any and all monies and payments (including in kind
collections) received or due or to become due with respect to the contracts and
all other rights and benefits thereunder due as of the Closing Date;
(b) the security interests in the vehicles granted by the retail
consumers ("customers") purchasing vehicles pursuant to the contracts and any
other interest of the Sellers in the vehicles, including, without limitation,
the certificates of title with respect to vehicles, and in and to all other
security, warranties, guaranties and credit support with respect to the
contracts;
(c) any proceeds from claims on and any rights under any
physical damage, credit life and credit accident and health insurance policies
or other insurance (including vendor's single interest insurance) or
certificates relating to the contracts, the vehicles or the customers;
(d) refunds for the costs of extended service contracts with
respect to vehicles, refunds of unearned premiums with respect to credit life
and credit accident and health insurance policies or other insurance
certificates covering any customer or vehicle or the customer's obligations with
respect to a vehicle and any recourse to dealers for any of the foregoing;
(e) all documents, records, instruments and files related to
each contract; and
(f) the proceeds of any and all of the foregoing.
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"Fixed Assets" shall have the meaning set forth in SECTION 1.1(D).
"Hazardous Substances" shall have the meaning set forth in SECTION
2.20(F) of EXHIBIT A hereto.
"Inventory" shall have the meaning set forth in SECTION 1.1(C).
"Licenses" shall have the meaning set forth in SECTION 2.20(F) of
EXHIBIT A hereto.
"Losses" shall have the meaning set forth in SECTION 5.1.
"Net Price" shall have the meaning set forth in SECTION 1.6.
"Notes" shall have the meaning set forth in SECTION 1.5(B).
"Notices" shall have the meaning set forth in SECTION 2.20(B) of
EXHIBIT A hereto.
"Proceedings" shall have the meaning set forth in SECTION 2.20(B)
of EXHIBIT A hereto.
"Purchase Price" shall have the meaning set forth in SECTION 1.5.
"Purchased Assets" shall have the meaning set forth in SECTION 1.1.
"Receivables" shall have the meaning set forth in SECTION 1.1(B).
"Restricted Period" shall have the meaning set forth in SECTION
4.5.
"Restricted Territory" shall have the meaning set forth in SECTION
4.5.
"Underground Storage Tank" shall have the meaning set forth in
SECTION 2.20(F) of EXHIBIT A hereto.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"Governmental Authority" means any nation or government, any state,
regional, local or other political subdivision thereof, and any entity or
official exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, but not limited to, any conditional sale
or other title retention agreement, any lease in the nature thereof, and the
filing of or agreement to give any financing statement under the uniform
commercial code or comparable law or any jurisdiction in connection with such
mortgage, pledge, security interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or effect),
in the condition (financial or otherwise), properties, assets, liabilities,
rights, obligations, operations, business or prospects which change (or effect)
individually or in the aggregate, is
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materially adverse to such condition, properties, assets, liabilities, rights,
obligations, operations, business or prospects.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint share company, estate, trust,
unincorporated association, joint venture, Governmental Authority or other
entity, of whatever nature.
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Tax.
"Taxes" means all taxes, fees or other assessments, including, but
not limited to, income, excise, property, sales, use, franchise, intangible,
payroll, withholding, social security and unemployment taxes imposed by any
federal, state, local or foreign governmental agency, and any interest or
penalties related thereto.
9.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection with this
Agreement and the transactions contemplated hereby shall be determined in
accordance with GAAP applied on a basis consistent with prior periods, where
applicable.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
ARTICLE X
PARTIES
10.1 PARTIES IN INTEREST. Nothing in this Agreement, whether expressed
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties to it and their respective
heirs, executors, administrators, personal representatives, successors and
permitted assigns, nor is anything in this Agreement intended to relieve or
discharge the obligations or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
10.2 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a a) on the date of service if served personally on the party to whom
notice is to be given, (b b) on the day after the date sent by recognized
overnight courier service, properly addressed and with all charges prepaid or
billed to the account of the sender, or (c c) on the third day after mailing if
mailed to the party to
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whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed as follows:
(i) If to the Sellers and/or the Shareholders:
Don Cook
910 Patrick Circle South
West Palm Beach, Florida 33406
(ii) If to the Buyer:
Smart Choice Automotive Group, Inc.
5200 South Washington Avenue
Titusville, Florida 32780
Attn: Neal Hutchinson
or to such other address as any party shall have specified by notice in writing
given to the other party.
ARTICLE XI
MISCELLANEOUS.
11.1 AMENDMENTS AND MODIFICATIONS. No amendment or modification of this
Agreement or any schedule hereto shall be valid unless made in writing and
signed by the party to be charged therewith.
11.2 NON-ASSIGNABILITY; BINDING EFFECT. Neither this Agreement, nor any
of the rights or obligations of the parties hereunder, shall be assignable by
any party hereto without the prior written consent of all other parties hereto.
Otherwise, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
11.3 GOVERNING LAW; JURISDICTION. This Agreement shall be construed and
interpreted and the rights granted herein governed in accordance with the
internal laws of the State of Florida.
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IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement on and as of the date first set forth above.
SMART CHOICE AUTOMOTIVE GROUP, INC.
/S/ J. NEAL HUTCHINSON, JR.
By: J. NEAL HUTCHINSON, JR.
Title: ASSISTANT VICE PRESIDENT
READY FINANCE, INC.
/S/ DON COOK
By: DON COOK
Title: PRESIDENT
STRATA HOLDING, INC. D/B/A DON COOK MOTORS
/S/ DON COOK
By: DON COOK
Title: PRESIDENT
/S/ DON COOK
By: Don Cook, Shareholder
/S/ MARILYN COOK
By: Marilyn Cook, Shareholder
/S/ MADIE A. STATEMEYER
By: Madie A. Stratemeyer, Shareholder
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EXHIBIT A
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS AND THE SHAREHOLDERS
2.1 CORPORATE STATUS. The Sellers are corporations duly organized,
validly existing and in good standing under the laws of the State of Florida,
with full corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby, and to own its assets
and conduct its Business as owned and conducted on the date hereof. The Sellers
are not required to be qualified as a foreign corporation under the laws of any
jurisdiction.
2.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by the Sellers have been duly and validly authorized by the Boards of Directors
of the Sellers and by the Shareholders (as shareholders of the Sellers). No
further corporate authorization is required on the part of the Sellers to
consummate the transactions contemplated hereby.
2.3 VALID AND BINDING AGREEMENT. This Agreement constitutes the legal,
valid and binding obligation of the Sellers and the Shareholders, enforceable
against the Sellers and the Shareholders in accordance with its terms, except to
the extent limited by bankruptcy, insolvency, reorganization and other laws
affecting creditors' rights generally, and except that the remedy of specific
performance or similar equitable relief is available only at the discretion of
the court before which enforcement is sought.
2.4 NO BREACH OF STATUTE OR CONTRACT. Neither the execution and
delivery of this Agreement by the Sellers and the Shareholders, nor compliance
with the terms and provisions of this Agreement on the part of the Sellers and
the Shareholders, will: (a) violate any statute or regulation of any
governmental authority, domestic or foreign, affecting the Sellers; (b) require
the issuance to the Sellers of any authorization, license, consent or approval
of any federal or state governmental agency or any other person; (c) conflict
with or result in a breach of any of the terms, conditions or provisions of the
Sellers' certificates of incorporation or by-laws or any judgment, order,
injunction, decree, agreement or instrument to which the Sellers or either of
the Shareholders are parties, or by which the Sellers or the Shareholders are
bound, or constitute a default thereunder; or (d) require the consent of any
third party under any outstanding statute, regulation, judgment, order,
injunction, decree, agreement or instrument to which the Sellers or the
Shareholders are parties or by which the Sellers or the Shareholders are bound.
2.5 FINANCIAL INFORMATION.
(a) Annexed hereto as SCHEDULE 2.5 are the unaudited combined
financial statements (including balance sheet, income statement and statement of
cash flows) for the Sellers as of December 31, 1994, December 31, 1995 and
December 31, 1996 and for each of the years then ended, and as of May 31, 1997
and for the five (5) months then ended (collectively, the "FINANCIAL
STATEMENTS"), the balance sheets of the Sellers dated as of May 31, 1997,
included in the Financial Statements are referred to herein as the "Current
Balance Sheets," all of which fairly reflect, in all material respects, the
combined financial condition and results of operations of the
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Sellers as of the dates thereof and for the periods then ended, in accordance
with generally accepted accounting principles consistently applied; and, without
limitation of the foregoing, the Sellers do not have any material liabilities,
fixed or contingent, known or unknown, except to the extent reflected in the
most recent of such Financial Statements or thereafter incurred in the normal
course of the Sellers' businesses.
2.6 NO MATERIAL CHANGES. Since the date of the Current Balance Sheets,
(a) the Sellers have been operated solely in the normal course, (b) there has
been no material adverse change in the financial condition or operations of the
Sellers from that reflected in such Financial Statements, (c) the Sellers have
not incurred any material obligation or liability except in the normal course of
business, (d) the Sellers have not effected or suffered any material
modification in its collection practices, or with respect to the timing and
manner of payment of its accounts payable, and (e) there has not been any
sale, assignment or transfer by the Sellers of any assets or other part of its
business, excluding the sale or disposition of inventory in the ordinary course
of business
2.7 TAX MATTERS. The Sellers have, to the date hereof, timely filed all
tax reports and tax returns required to be filed by the Sellers, and the Sellers
have paid all taxes, assessments and other impositions as and to the extent
required by applicable law. All federal, state and local income, franchise,
sales, use, property, excise, payroll withholding and other taxes (including
interest and penalties and including estimated tax installments where required
to be filed and paid) due from or with respect to the Sellers as of the date
hereof have been fully paid, and all taxes and other assessments and levies
which the Sellers are required by law to withhold or to collect have been duly
withheld and collected and have been paid over to the proper governmental
authorities to the extent due and payable. There are no outstanding or pending
claims, deficiencies or assessments for taxes, interest or penalties with
respect to any taxable period of the Sellers and there are no Liens for taxes on
any of the Purchased Assets.
2.8 TITLE AND CONDITION OF THE ASSETS. Except as set forth in SCHEDULE
2.8 hereto, the Sellers have and own good and marketable title to all of the
Purchased Assets, free and clear of all Liens, pledges, claims, security
interests and encumbrances of every kind and nature (except for any such Liens,
security interests or encumbrances which are being discharged pursuant to
SECTION 1.8 and are shown on SCHEDULE 2.8 hereto). All of the Fixed Assets are
in good operating condition and repair (reasonable wear and tear excepted), are
adequate for their use in the Business as presently conducted and are sufficient
for the continued conduct of such Business.
2.9 RECEIVABLES. All of the Receivables (other than the Finance
Contracts) (whether reflected in the Financial Statements or thereafter created
or acquired by the Sellers prior to the date hereof), (a) have arisen in the
normal course of the Sellers' Business; (b) are not subject to any
counterclaims, set-offs, allowances or discounts of any kind; and (c) have been,
are and will be valid and collectible in the ordinary course of the business;
and (d) neither the Shareholders nor the Sellers have knowledge of any material
or unusual risk of non-payment of any of the Receivables.
2.10 INVENTORY. All of the Inventory (whether reflected in the
Financial Statements or thereafter acquired by the Sellers prior to the date
hereof) is of a quality, age and quantity
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consistent with the historical practices of the Sellers since January 1, 1994,
and is valued on the Sellers' books at the lower of cost or market (on a first
in-first out basis).
2.11 LEGAL COMPLIANCE. The Sellers are, and for the past three (3)
years have been, in compliance in all material respects with all laws, statutes,
regulations, rules and ordinances applicable to the conduct of its business
(including, without limitation, all applicable consumer finance and/or lending
and leasing laws, and all applicable environmental laws, statutes, regulations,
rules and ordinances), and has in full force and effect all licenses, permits
and other authorizations required for the conduct of its business as presently
constituted. The Sellers are not in default or violation in respect of or under
any of the foregoing, and neither the Shareholders nor the Sellers are aware of
any past or present condition or circumstance in the Sellers' business
(including, without limitation, with respect to any real property now or
previously occupied by the Sellers) which could give rise to any material
liability under any such law, statute, regulation, rule or ordinance.
2.12 REAL PROPERTY. The Sellers own a leasehold as lessee under the
Lease (a true and complete copy of which is annexed hereto as SCHEDULE 2.12).
The Sellers (and, to the best of the Sellers' and the Shareholders' knowledge,
the landlord thereunder) is presently in compliance with all of its obligations
under the Lease, and the premises leased thereunder are in good condition
(reasonable wear and tear excepted), and are adequate for the operation of the
Business as presently conducted. No consent of the landlord under the Lease
which has not previously been obtained is required in order to effect the
assignment of the Lease to the Buyer pursuant to this Agreement.
2.13 EMPLOYEES. The Sellers are not parties to or bound by any
collective bargaining agreement, employment agreement, consulting agreement or
other commitment for the employment or retention of any person, and no union is
now certified or has claimed the right to be certified as a collective
bargaining agent to represent any employees of the Sellers. Neither the
Shareholders nor the Sellers have had any material labor difficulty in the past
two (2) years, and the Sellers have not received notice of any unfair labor
practice charges against the Sellers or any actual or alleged violation by the
Sellers of any law, regulation, or order affecting the collective bargaining
rights of employees, equal opportunity in employment, or employee health,
safety, welfare, or wages and hours.
2.14 EMPLOYEE BENEFITS. The Sellers do not maintain and are not
required to make any contributions, and have no outstanding obligation to make
any contribution, to any pension, profit-sharing, retirement, deferred
compensation or other such plan or arrangement for the benefit of any employee,
former employee or other person, and the Sellers do not have any obligations
with respect to deferred compensation or future benefits to any past or present
employee. SCHEDULE 2.14 hereto fairly summarizes the employee benefits currently
granted by the Sellers to its employees, provided that nothing herein contained
shall be deemed to obligate the Buyer to assume or continue any such employee
benefit or provide any comparable benefit.
2.15 CONTRACTS AND COMMITMENTS. The Sellers have previously provided to
the Buyer true and complete copies of all of the credit agreements, finance
leases and other agreements underlying the Receivables. Other than (a) such
credit agreements, finance leases and other agreements underlying the
Receivables, (b) the Lease, and (c) those contracts and
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commitments described in SCHEDULE 2.15 hereto, there is no contract, agreement,
commitment or understanding which is material to the ongoing operation of the
Business.
2.16 LITIGATION. There is no pending or, to the best knowledge of the
Sellers and the Shareholders, threatened litigation, arbitration, administrative
proceeding or other legal action or proceeding against the Sellers or relating
to its business.
2.17 INTELLECTUAL PROPERTY. The Sellers have the valid right to utilize
all trade names and other intellectual property utilized in its Business, and
have not received notice of any claimed infringement of any of such intellectual
property with the rights or property of any other person.
2.18 GOING CONCERN. Neither the Sellers nor the Shareholders have any
knowledge of any fact, event, circumstance or condition (including but not
limited to any announced or anticipated changes in the policies of any material
supplier, referral source, client or customer) that would materially impair the
ability of the Buyer to continue the Business heretofore conducted by the
Sellers in substantially the manner heretofore conducted by the Sellers (other
than general, industry-wide conditions).
2.19 TITLE AND CONDITION OF FINANCE CONTRACTS. Except as set forth on
SCHEDULE 2.19 hereto:
(a) the Sellers have fully complied with all laws, rules and
regulations of any Governmental Authority applicable to the transaction creating
each Finance Contract, including the Federal Truth in Lending Act, the Federal
Equal Credit Opportunity Act, the Federal Consumer Credit Protection Act, and
comparable laws of the State of Florida;
(b) the Sellers have all required licenses, permits and authority
to sell used vehicles, finance the sale of used vehicles and execute and perform
the Finance Contracts, and the Sellers have all required licenses, permits and
authority to acquire, hold, and collect and assign the Finance Contracts to the
Buyer;
(c) the Sellers have received the down payment amount stated in
each Finance Contract in cash or its equivalent and no part of the down payment
on any Finance Contract has been loaned directly or indirectly to the customer
by any Seller, or any affiliate of any Seller, other than "pick-up" payments
disclosed in the Finance Contracts;
(d) all vehicles and any other goods and services sold by the
Sellers pursuant to each Finance Contract are free of all Liens and claims of
any kind other than those in favor of Sellers, and the description of the
vehicle in each Finance Contract is true, complete and accurate.
(e) the vehicle sold to the customer named in each Finance Contract
has been delivered to the customer named in the Finance Contract and application
to the appropriate agency of the State of Florida has been filed in accordance
with applicable law for registration of the vehicle showing the customer as the
owner and one of the Sellers as the only lien holder;
(f) the customer named in each Finance Contract has full legal
capacity to make the Finance Contract, and the name of the customer stated in
the Finance Contract is the true and actual name of the customer and such
customer named in the Finance Contracts has executed the Finance Contract;
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(g) no customer on any Finance Contract being sold to the Buyer has
put the Sellers or any Affiliate of Sellers on notice of or asserted any claim,
offset, defense, claim or defense relating to the vehicle sold by the Sellers or
the Finance Contract, the performance or non-performance by Sellers or any
Affiliate of Sellers' obligations under any Finance Contract, warranty or
guarantee, or arising from any act, error, omission, representation or warranty
of the Sellers or any of their officers, agents or employees. The Sellers have
fully and in good faith performed and discharged all of their obligations to the
customer arising under each Finance Contract or relating to the Finance Contract
accrued as of the date of the assignment of the Finance Contract to the Buyer;
(h) if required by applicable law at the time of the origination of
each Finance Contract, the vehicle securing the Finance Contract was insured for
liability of the customer in accordance with applicable law at the time of the
origination of the Finance Contract;
(i) all sales taxes assessed in connection with the sale of the
vehicle to the customer have been paid in full, or if not paid in full, will be
paid in full when due by Sellers;
(j) each Finance Contract has created a valid and enforceable first
priority perfected security interest in favor of Sellers in the vehicle, which
security interest is accurately reflected on the vehicle's certificate of title
and will be or has been validly assigned and transferred by Sellers to Buyer on
the Closing Date;
(k) each Finance Contract is in the form attached hereto as part of
SCHEDULE 2.19 and does not include any amendments, modifications or supplements
other than in the form attached hereto except as modified by subsequent repairs;
(l) each Finance Contract provides for level payments not less
frequently than monthly, in amounts that fully amortize the amount financed
stated therein over the original term (except for the last payment, which may be
less than the level payment) and yield interest at the annual percentage rate
stated in the Finance Contract;
(m) each Finance Contract accurately reflects the actual terms and
conditions of the customer's purchase of the vehicle and the financing thereof
and there are no terms or conditions not expressly stated in the Finance
Contract;
(n) no vehicle shall have been repossessed or designated for
repossession and no investigation has been initiated by Sellers to determine the
whereabouts of a vehicle or customer for the purposes of the repossession of the
vehicle;
(o) within the most recent ninety days, a payment in an amount not
less than the regularly-scheduled installment has been received and applied to
each such Finance Contract;
(p) The Sellers are the sole owners of each Finance Contract, and
each Finance Contract is free of all Liens;
(q) except for the conveyances hereunder, the Sellers have not
sold, pledged, assigned or transferred to any other person, or grant, create,
incur, assume or suffer to exist any Lien on any Finance Contract, or vehicle
securing the Finance Contract, whether now existing or hereafter created, or any
interest therein. No customer on a Finance Contract has any defense, set off, or
counterclaim to the payment of the amount of the obligation thereon;
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(r) the prepared and applicable ledger cards and/or computer
records applicable to each Finance Contract delivered to the Buyer by the
Sellers fully and accurately reflects the true outstanding unpaid balance of
such Finance Contract and the Finance Contract's records accurately reflect all
receipts on such Finance Contract from the obligors thereof and all credits to
which such obligors are entitled;
(s) all the Finance Contracts were originated in the State of
Florida and the Sellers have paid or caused to be paid any and all license,
franchise, intangible, stamp or other taxes or fees due and owing to the State
of Florida, or any political subdivision thereof, arising from or growing out of
the acquisition, collection or holding of such Finance Contract; and
(t) The Sellers will pay over to the Buyer in-kind any payments
received on each Finance Contract from and after the Closing Date.
2.20 ENVIRONMENTAL MATTERS.
(a) The Sellers are and have at all times been in material
compliance with all Environmental Laws governing its business, operations,
properties and assets, including, without limitation: (i) all material
requirements relating to the Discharge and Handling of Hazardous Substances;
(ii) all material requirements relating to notice, record keeping and reporting;
(iii) all material requirements relating to obtaining and maintaining Licenses
for the ownership by the Sellers of its properties and assets and the operation
of its business as presently conducted; or (iv) all applicable writs, orders,
judgments, injunctions, governmental communications, decrees, informational
requests or demands issued pursuant to, or arising under, any Environmental
Laws.
(b) There are no (and to the knowledge of the Shareholders there is
no basis for any) non-compliance orders, warning letters, notices of violation
(collectively "NOTICES"), claims, suits, actions, judgments, penalties, fines,
or administrative or judicial investigations of any nature or proceedings
(collectively, "PROCEEDINGS") pending or to the knowledge of the Shareholders
threatened against or involving the Sellers, its businesses, operations,
properties or assets, issued by any Governmental Authority or third party with
respect to any Environmental Laws or Licenses issued to the Sellers thereunder
in connection with, related to or arising out of the ownership by the Sellers of
its properties or assets or the operation of its businesses, which have not been
resolved to the satisfaction of the issuing Governmental Authority or third
party in a manner that would not impose any material obligation, burden or
continuing liability on the Buyer or the Sellers in the event that the
transactions contemplated by this Agreement are consummated.
(c) The Sellers have not at any time Handled or Discharged, nor has
it at any time allowed or arranged for any third party to Handle or Discharge,
Hazardous Substances to, at or upon: (i) any location other than a site lawfully
permitted to receive such Hazardous Substances; (ii) any parcel of real property
owned or leased at any time by the Sellers, except in material compliance with
applicable Environmental Laws; or (iii) any site which, pursuant to CERCLA or
any similar state law (x) has been placed on the National Priorities List or its
state equivalent, or (y) the Environmental Protection Agency or any relevant
state agency has notified the Sellers that it has proposed or is proposing to
place on the National Priorities List or its state equivalent. There has not
occurred, nor is there presently occurring, a Discharge, or threatened
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Discharge of any Hazardous Substance on, into or beneath the surface of, or
adjacent to, any real property owned or leased at any time by the Sellers.
(d) Except as set forth on SCHEDULE 2.20(d) hereto, the Sellers do
not use, nor have they used, any Aboveground Storage Tanks or Underground
Storage Tanks; there are not now nor have there ever been any Underground
Storage Tanks on any real property owned or leased at any time by the Sellers;
and there has been no Discharge from or rupture of any Aboveground Storage Tanks
or Underground Storage Tanks.
(e) Except as set forth on SCHEDULE 2.20(e) hereto, there have been
no (i) environmental audits, assessments or occupational health studies
undertaken by the Sellers or its agents or representatives thereof or, to the
knowledge of the Sellers, undertaken by any Governmental Authority, or any third
party, relating to or affecting the Sellers or any real property owned or leased
at any time by the Sellers; (ii) ground, water, soil, air or asbestos monitoring
undertaken by the Sellers or its agents or representatives thereof or undertaken
by any Governmental Authority or any third party, relating to or affecting the
Sellers or any real property owned or leased at any time by the Sellers; (iii)
material written communications between the Sellers and any Governmental
Authority arising under or related to Environmental Laws including but not
limited to, any notices of violation and notices of non-compliance; and (iv)
outstanding citations issued under OSHA, or similar state or local statutes,
laws, ordinances, codes, rules, regulations, orders, rulings or decrees,
relating to or affecting the Sellers or any real property owned or leased at any
time by the Sellers.
(f) For purposes of this Section, the following terms shall have
the meanings ascribed to them below:
"Aboveground Storage Tank" shall have the meaning ascribed to such
term in Section 6901 ET seq., as amended, of RCRA, or any applicable
state or local statute, law, ordinance, code, rule, regulation, order
ruling, or decree governing Aboveground Storage Tanks.
"Discharge" means any manner of spilling, leaking, dumping,
discharging, releasing, migrating or emitting, as any of such terms may
further be defined in any Environmental Law, into or through any medium
including, without limitation, ground water, surface water, land, soil
or air.
"Handle" means any manner of generating, accumulating, storing,
treating, disposing of, transporting, transferring, labeling, handling,
manufacturing or using, as any of such terms may further be defined in
any Environmental Law.
"Hazardous Substances" shall be construed broadly to include any
toxic or hazardous substance, material or waste, and any other
contaminant, pollutant or constituent thereof, whether liquid, solid,
semi-solid, sludge and/or gaseous, including without limitation,
chemicals, compounds, by-products, pesticides, asbestos containing
materials, petroleum or petroleum products, and polychlorinated
biphenyls, the presence of which requires investigation or remediation
under any Environmental laws or which are or become regulated, listed
or controlled by, under or pursuant to any Environmental Laws, or which
has been or shall be determined or interpreted at any time by any
A-7
<PAGE>
Governmental Authority to be a hazardous or toxic substance regulated
under any other statute, law, regulation, order, code, rule, order, or
decree.
"Licenses" means all licenses, certificates, permits, approvals,
decrees and registrations.
"Underground Storage Tank" shall have the meaning ascribed to such term
in Section 6901 ET SEQ., as amended, of RCRA, or any applicable state or local
statute, law, ordinance, code, rule, regulation, order, ruling or decree
governing Underground Storage Tanks.
A-8
<PAGE>
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
OF THE BUYER
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, with all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
3.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by the Buyer has been duly and validly authorized by the Board of Directors of
the Buyer. No further corporate authorization is required on the part of the
Buyer to consummate the transactions contemplated hereby.
3.3 VALID AND BINDING AGREEMENT. This Agreement constitutes the legal,
valid and binding obligation of the Buyer, enforceable against the Buyer in
accordance with its terms, except to the extent limited by bankruptcy,
insolvency, reorganization and other laws affecting creditors' rights generally,
and except that the remedy of specific performance or similar equitable relief
is available only at the discretion of the court before which enforcement is
sought.
3.4 NO BREACH OF STATUTE OR CONTRACT. Neither the execution and
delivery of this Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement on the part of the Buyer, will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization, license,
consent or approval of any federal or state governmental agency; (c) conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or other
agreement or instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder; or (d) require the consent of any
third party under any outstanding statute, regulation, judgment, order,
injunction, decree, agreement or instrument to which the Buyer is a party, or by
which the Buyer is bound.
3.5 ACCESS TO BOOKS AND RECORDS. The Buyer has permitted the Sellers to
have access to such of the books and records of the Buyer as the Sellers have
requested in connection with the transactions contemplated by this Agreement.
B-1
<PAGE>
EXHIBIT 1.5(A)
NOTE
$1,200,000 June 27, 1997
SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida corporation (the
"Company"), for value received, promises to pay to READY FINANCE, INC., a
Florida corporation (the "Seller"), the principal amount of ONE MILLION TWO
HUNDRED THOUSAND Dollars ($1,200,000) in equal installments of $6,666.67 per
month and the balance due on the second anniversary of the date hereof (or, if
such day is not a business day, on the next succeeding business day), together
with accrued and unpaid interest on the principal amount thereof to and
including the date of payment. This Note shall accrue interest at a rate per
annum (consisting of a 365 day year) equal to 9% on the outstanding principal
amount and payable monthly.
Payments of principal hereof and interest and premium hereon shall be
made in lawful money of the United States of America.
In the event that the Company fails to make a timely payment to the
Seller under this Agreement, the Company shall have 180 days to cure such
default. If such default continues for longer than 180 days, the Seller shall be
entitled to accelerate payment in full of the principal amount hereof and all
accrued interest.
This Note is secured by collateral as set forth in the Loan and
Security Agreement of even date herewith. This Note shall not be transferable by
the payees. This Note is subject to set-off by the Company for indemnification
and other claims arising under that certain Asset Purchase Agreement between the
Company, Strata Holdings, Inc., Ready Finance, Inc., Donald Cook, Marilyn Cook
and Madie A. Statemeyer of even date herewith (the "Asset Purchase Agreement").
In the event that the Company completes a secondary offering of its
equity securities and raises at least $20 million in gross proceeds, then the
note will be paid in full at the election of Mr. Cook within 30 days of such
offering or notice thereof by the Company.
In the event the holder of this Note is required to retain an attorney
to collect this Note, the maker shall pay the reasonable attorney's fees of the
holder hereof.
THIS NOTE AND ALL THE TERMS HEREIN, SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REGARD TO THE
CHOICE OF LAW PROVISIONS THEREOF.
<PAGE>
* * *
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed as of the day and year first above written.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /S/ J. NEAL HUTCHINSON, JR.
Title: Assistant Vice President
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<PAGE>
EXHIBIT 1.5(B)
SUBORDINATED NOTE
$3,680,089 June 27, 1997
SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida corporation (the
"Company"), for value received, promises to pay, subject to the subordination
provisions contained herein, to READY FINANCE, INC., a Florida corporation (the
"Seller"), the principal amount of THREE MILLION SIX HUNDRED AND EIGHTY THOUSAND
AND EIGHTY-NINE DOLLARS ($3,680,089) in equal installments of $20,444.94 per
month and the balance due on the second anniversary of the date hereof (or, if
such day is not a business day, on the next succeeding business day), together
with accrued and unpaid interest on the principal amount thereof to and
including the date of payment. This Subordinated Note shall accrue interest at a
rate per annum (consisting of a 365 day year) equal to 9% on the outstanding
principal amount and payable monthly, subject to the subordination provisions
contained herein.
Payments of principal hereof and interest and premium hereon shall be
made in lawful money of the United States of America.
The Company and the Seller agree for the benefit of the Senior Debt (as
defined below) that all indebtedness evidenced by this Subordinated Note,
including principal, premium, if any, and interest, and all other amounts
payable to the Seller hereunder (including, for all purposes of this
Subordinated Note, any payment in respect of redemption or purchase or other
acquisition hereof) (collectively, the "Subordinated Debt") shall, to the extent
hereinafter set forth, be subordinate and junior to all Senior Debt.
Unless and until all principal of, premium, if any, and interest on,
and all other obligations of the Company under, any Senior Debt shall have been
paid in full and all commitments to extend Senior Debt shall have terminated, at
any time after there is a default or event of default under the Credit Agreement
(as defined below) neither the Company nor any of its Subsidiaries or Affiliates
shall make, and the Seller shall not demand, accept or receive, attempt to
collect or commence any legal proceedings to collect, any direct or indirect
payment (in cash or property or by setoff, exercise of contractual or statutory
rights or otherwise) of or on account of any amount payable on or with respect
to this Subordinated Note (including any payment in respect of redemption or
purchase or other acquisition) or any interest herein or assert rights against
collateral the Seller may have as security for this Subordinated Note. Unless
and until all principal of, premium, if any, and interest on, and all other
obligations of the Company under, the Senior Debt shall have been paid in full
and all commitments to extend Senior Debt shall have terminated, the Seller will
not commence or maintain any action, suit or any other legal or equitable
proceeding against the Company, or join with any creditor in any such
proceeding, under any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar law, unless the holders of Senior Debt shall
also join in bringing such proceeding; provided that the foregoing shall not
prohibit the Seller
<PAGE>
from filing a proof of claim or otherwise participating in any such proceeding
not commenced by it.
In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to the Company or to its creditors, in their
capacity as creditors of the Company, or to substantially all of its property,
and in the event of any proceedings for voluntary liquidation, dissolution or
other winding up of the Company, whether or not involving insolvency or
bankruptcy, then:
(a) the holders of the Senior Debt shall first be entitled to receive
payment in full of the principal thereof, premium, if any, interest and all
other amounts payable thereon (accruing before and after the commencement of the
proceedings, whether or not allowed or allowable as a claim in such proceedings)
before the Seller is entitled to receive any payment on account or in respect of
Subordinated Debt; and
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities to which the Seller would be
entitled, but for the provisions of this Subordinated Note, shall be paid or
distributed by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or other trustee or agent, directly to the Agent (as defined
below) and any other representative on behalf of the holders of Senior Debt to
the extent necessary to make payment in full of all amounts of Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of the Senior Debt.
Should any payment or distribution or security or the proceeds of any
thereof be collected or received by the Seller in respect of the Subordinated
Debt, at a time when the payment thereof by the Company is prohibited by the
terms of this Subordinated Note, the Seller will forthwith deliver the same to
the Agent and any other representative on behalf of the holders of Senior Debt
for the equal and ratable benefit of the holders of the Senior Debt in precisely
the form received (except for the endorsement or the assignment of or by the
Seller where necessary) for application to payment of all Senior Debt in full,
after giving effect to any concurrent payment or distribution to the holders of
Senior Debt and, until so delivered, the same shall be held in trust by the
Seller as the property of the holders of the Senior Debt.
The Seller hereby waives any and all notice in respect of the Senior
Debt, present or future, and agrees and consents that without notice to or
assent by any holder or holders of the Subordinated Debt:
(i) the obligation and liabilities of the Company or any other
party or parties for or upon the Senior Debt (or any promissory
Subordinated Note, security document or guaranty evidencing or securing
the same) may, from time to time, in whole or in part, be renewed,
extended, modified, increased, amended, restated, accelerated,
compromised, supplemented, terminated, sold, exchanged, waived or
released;
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<PAGE>
(ii) the Agent and the holders of the Senior Debt may exercise
or refrain from exercising any right, remedy or power granted by or in
connection with any agreements relating to the Senior Debt; and
(iii) any balance or balances of funds with any holders of the
Senior Debt at any time standing to the credit of the Company may, from
time to time, in whole or in part, be surrendered or released;
all as the Agent or the holders of the Senior Debt may deem advisable and all
without impairing, abridging, diminishing, releasing or affecting the
subordination of the Subordinated Debt to the Senior Debt provided for herein.
Nothing contained in the subordination provisions of this Subordinated
Note is intended to or shall impair, as between the Company, its creditors other
than the holders of the Senior Debt, and the Seller, the obligation of the
Company, which is absolute and unconditional, to pay to the Seller the principal
of, premium, if any, and interest on this Subordinated Note, as and when the
same shall become due and payable (except as otherwise provided in this
Subordinated Note) in accordance with its terms, or is intended to or shall
affect the relative rights of the Seller and other creditors of the Company
other than the holders of the Senior Debt.
The Seller acknowledges and agrees that the holders of the Senior Debt
have relied upon and will continue to rely upon the subordination provided for
herein in entering into the agreements relating to Senior Debt and in extending
credit to the Company pursuant thereto.
No present or future holder of Senior Debt shall be prejudiced in his
right to enforce the subordination contained herein in accordance with the terms
hereof by any act or failure to act on the part of the Company or the Seller.
The subordination provisions contained herein are for the benefit of the holders
of the Senior Debt form time to time and, so long as any Senior Debt is
outstanding under any agreement, may not be rescinded, canceled or modified in
any way without the prior written consent thereto of all holders of Senior Debt.
Notwithstanding anything to the contrary in this Subordinated Note,
upon any payment or distribution of assets of the Company in any proceedings for
reorganization, insolvency, liquidation, dissolution or other winding up, the
Seller shall be entitled to rely upon any final order or decree made by any
court of competent jurisdiction in which any such proceedings are pending for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of the Senior Debt and other debt of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto.
The subordination provisions hereof shall be binding upon any holder of
Subordinated Debt and upon the successors and assigns of the Seller; and all
references herein to the Seller shall be deemed to include any successor or
successors, whether immediate or remote, to the Seller.
The following terms, as used herein, have the following respective
meanings:
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<PAGE>
"AGENT" means (i) so long as the Credit Agreement is in effect, Finova
Capital Corporation, in its capacity as agent for the Lenders party to the
Credit Agreement or any successor or other Agent appointed pursuant to the
Credit Agreement and (ii) it there is no Credit Agreement in effect, thereafter
any agent designated as representative of holders of all other Senior Debt.
"CREDIT AGREEMENT" means collectively, (i) the Amended and Restated
Loan and Security Agreement dated as of February 4, 1997 between Finova Capital
Corporation as Lender and Florida Finance Group, Inc. and Liberty Finance
Company, (ii) the Loan Agreement dated as of March 13, 1997 between the Company
and Sirrom Capital Corporation ("Sirrom") (the "March Loan Agreements"); and
(iii) the Loan Agreement dated May 13, 1997 between the Company and Sirrom (the
"May Loan Agreements"), in the case of (i), (ii) and (iii) as the same may be
amended, restated, modified, extended or supplemented from time to time in
accordance with its terms and any successor financial institution credit
agreement refinancing all or a portion of the Credit Agreement and designated by
the Company as the "Credit Agreement" for purposes hereof.
"SENIOR DEBT" means (a) all principal of, premium and interest
(including, without limitation, any interest ("Post-Petition Interest") which
accrues (or which would accrue but for such case, proceedings or other action)
after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Company (whether or not such
interest is allowed or allowable as a claim in such case, proceeding or other
action)) on any loan under, and all Subordinated Notes issued pursuant to, the
Credit Agreement, (b) any renewals, refinancings or extensions of any of the
foregoing (or any portion thereof) (including Post-Petition Interest) and (c)
all fees, expenses, indemnities and all other amounts payable by the Company
thereunder or with respect thereto, including under any other Financing Document
(as defined in the Credit Agreement).
This Subordinated Note is not secured by any collateral and shall not
be transferable by the payees. This Subordinated Note is subject to set-off by
the Company for indemnification and other claims arising under that certain
Asset Purchase Agreement between the Company, Strata Holding, Inc., Ready
Finance, Inc., Donald Cook, Marilyn Cook and Madie A. Statemeyer of even date
herewith (the "Asset Purchase Agreement").
In the event that the Company fails to make a timely payment to the
Seller under this Agreement, the Company shall have 180 days to cure such
default. If such default continues for longer than 180 days, the Seller shall be
entitled to accelerate payment in full of the principal amount hereof and all
accrued interest.
In the event that the Company completes a secondary offering of its
equity securities and raises at least $20 million in gross proceeds, then the
note will be paid in full at the election of Mr. Cook within 30 days of such
offering or notice thereof by the Company.
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<PAGE>
In the event the holder of this Subordinated Note is required to retain
an attorney to collect this Subordinated Note, the maker shall pay the
reasonable attorney's fees of the holder hereof.
THIS SUBORDINATED NOTE AND ALL THE TERMS HEREIN, INCLUDING THE TERMS
REGARDING SUBORDINATION, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REGARD TO THE CHOICE OF LAW
PROVISIONS THEREOF.
* * *
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Subordinated Note to be
duly executed as of the day and year first above written.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /S/ J. NEAL HUTCHINSON, JR.
Title: Assistant Vice President
<PAGE>
EXHIBIT 1.5(C)
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") is made and
entered into as of the 27th day of June, 1997, by and between STRATA HOLDING,
INC. (D/B/A DON COOK MOTORS) AND READY FINANCE, INC., each a Florida corporation
(collectively, the "Lender"), and SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida
corporation (the "Borrower"), a Florida corporation, with its principal office
and place of business located at 5200 South Washington Avenue, Titusville,
Florida 32780.
In consideration of the mutual promises contained herein and to
induce Lender to make loans or grant other financial accommodation to Borrower,
the parties agree as follows:
1. Definitions. As used herein:
a. The definitions of terms set forth in the Florida Uniform
Commercial Code, Chapters 671 - 680, Florida Statutes, shall be controlling in
this Agreement unless the context clearly requires otherwise.
b. "COLLATERAL" shall mean with regard to the loan described
in paragraph 2 hereof- (a) the fixed assets listed on SCHEDULE 1.1(d) hereto
together with any and all fixed assets maintained on the same premises and all
products and proceeds of all of the foregoing; and (b) the used car inventory of
the Borrower listed on SCHEDULE 1.1(c) hereto and thereafter up to $1.2 million
of used car inventory of the Borrower located at the Company's premises located
at 1589 S. Military Trail, West Palm Beach, Florida and any proceeds thereof.
c. "LIABILITY" or "Liabilities" shall include the Note and all
liabilities or obligations (primary, secondary, direct, contingent, sole, joint
or several) due or to become due pursuant to the Note and this Agreement,
including costs, expenses, and attorneys' fees (including attorneys' fees in any
Bankruptcy or appellate case or proceeding), whether or not a lawsuit is
instituted.
d. "NOTE" shall mean the 9% Note in the original principal
amount of One Million Two Hundred Thousand Dollars ($1,200,000) payable pursuant
to the terms and conditions of the Note, representing the Borrower's
indebtedness described in paragraph 2 hereof and otherwise payable pursuant to
the provisions of this Agreement. in form and substance satisfactory to the
Lender and any and all renewal or modifications thereof and all changes thereto.
2. LOAN. The Lender is extending credit to the Borrower in the form of
purchase money credit in connection with the Borrower's purchase of the assets
of the Lender.
3. INTEREST RATE. The interest rate accruing under the Note shall never
exceed the maximum lawful rate, established from time to time, under the laws
applicable to loans in Florida.
<PAGE>
Any interest due on the loan made hereunder or any other Liability shall be
calculated on the basis of a year containing 365 days,
4. SECURITY INTEREST. As security for the payment of all loans and
advances now or in the future made hereunder, including the Note, and for all
other Liabilities, including any extensions, renewals or changes in form of any
thereof, Borrower hereby assigns to Lender and grants to Lender a security
interest in the Collateral.
5. ADDITIONAL COVENANTS. Borrower shall: (a) immediately notify Lender
in writing of any change in the location of the place of business where the
Collateral is located; (b) sell the Collateral only in the ordinary course of
business; (c) keep accurate and complete records of the Collateral; (d) pay and
discharge when due all taxes, levies and other charges on the Collateral; (e)
join with Lender in executing one or more financing statements, notices,
affidavits, or similar instruments in form satisfactory to Lender, and such
other instruments as Lender may from time to time request, and pay the cost of
filing the same in any public office deemed advisable by Lender; (f) give Lender
immediate written notice of (A) any adverse change in Borrower's financial
condition, and (B) all threatened or actual actions, investigations or
proceedings affecting Borrower.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Lender that: (a) Borrower is a corporation duly
organized and validly existing under the laws of the State of Florida; (b)
Borrower has all the power necessary to own assets; (c) the execution of this
Agreement and the documents referred to herein have been duly authorized by the
requisite corporate action; (d) the person signing for the Borrower has been
duly authorized to do so; (e) in connection with Borrower's inventory Borrower
is and will be the absolute owner thereof, and (f) Borrower is not a party to
any agreement which, by its terms or by operation of law, would conflict with
this Agreement.
7. INSURANCE. Borrower shall, at Borrower's expense, acquire and at all
times maintain one or more policies of insurance covering the fixed assets
portion of the Collateral in such amounts, covering such risks and with such
insurance companies as is standard in the industry. If Borrower fails to obtain
and pay for insurance as provided herein, then Lender may pay the premiums or
acquire insurance from another source and insure the interests of Lender and
Borrower or insure only the interests of Lender, without waiving or affecting
any rights under this Agreement. Every payment for insurance made by Lender
shall bear interest from the date thereof at the rate provided for in the Note
and each such payment and interest thereon shall be secured by this Agreement.
8. ADJUSTMENTS TO COLLATERAL. Lender shall have the right at any time
and from time to time, without notice to: (a) insure Collateral to Lender's
satisfaction if Borrower fails to do so and pay for the same, and pay for the
account of Borrower, any taxes, levies or other charges affecting Borrower's
Collateral or upon or on account of this Agreement or any Liability or any
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<PAGE>
writing evidencing any Liability, which Borrower fails to pay, and any such
payment shall constitute a Liability of Borrower; and (b) inspect any of the
places of business of Borrower from time to time upon demand.
9. LOCATION OF COLLATERAL. Borrower agrees not to remove or permit the
removal of any Collateral outside the continental United States or Canada or
transfer, dispose of or illegally or improperly use said Collateral.
10. DEFAULT AND REMEDIES. Borrower shall be in default under this
Agreement if at any time any warranty, representation, certificate or statement
of Borrower is not true, if Borrower should fail to observe or perform any
agreement or term set forth in this Agreement or in the Note, AND 30 days have
elapsed since the Lender shall have provided Borrower written notice of the
default and the Borrower shall not have cured such default within a reasonable
time after such notice. If Borrower is in default under this Agreement, then
subject to the subordination provisions set forth in the Note: (i) in addition
to any other rights and remedies which Lender may have, Lender shall have and
may exercise immediately and without demand, any and all the rights and remedies
granted to a secured party upon default under the Uniform Commercial Code; (ii)
upon the request or demand of Lender, Borrower shall, at Borrower's expense,
assemble the Collateral and make it available to Lender at a convenient place
acceptable to Lender; (iii) Borrower shall immediately execute and deliver to
Lender any and all instruments, documents, or any similar items which Lender, in
its sole discretion, deems necessary to dispose of said Collateral and Borrower
hereby appoints Lender its attorney in fact to execute, sign and seal any and
all instruments, documents, or any similar items which the Lender, in its sole
discretion, deems necessary to dispose of the Collateral after default; and (iv)
Borrower shall pay to Lender on demand any and all costs and expenses, including
reasonable attorneys' fees, including costs, and expenses incurred or paid by
Lender in protecting and enforcing Liabilities and the right of Lender
hereunder, including Lender's right to take possession of the Collateral and to
hold, prepare for sale, sell and dispose of the Collateral, whether or not a
lawsuit is instituted. Any notice of sale, disposition or other intended action
by Lender, sent to Borrower at the address of Borrower as may from time to time
be shown on Lender's records, at least five (5) days prior to such action, shall
constitute reasonable notice to Borrower although a shorter period of notice may
also be reasonable. It shall be commercially reasonable for Lender to sell the
Collateral on a wholesale basis to a dealer or dealers in new or used property
of like kind to the Collateral, or to sell to a purchaser directly or through a
dealer in such new or used property; but the enumeration of the foregoing
methods of disposition are without limitation on Lender's right to dispose of
the Collateral by any other manner or method (whether by sale, lease or
otherwise) in a commercially reasonable manner. Lender shall have the right to
apply all or any part of any surplus if any, from disposition of the Collateral
to (or to hold same as a reserve against) all or any Liabilities of Borrower to
Lender, whether or not they, or any of them, be then due, and in such order of
application as Lender may from time to time elect.
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<PAGE>
11. WAIVER. No waiver by Lender of any default shall operate as a
waiver of any other default or of the same default on a future occasion. No
delay or omission on the part of Lender in exercising any right or remedy shall
operate as waiver thereof, and no single or partial exercise by Lender of any
right or remedy shall preclude or affect any other or further exercise thereof
or the exercise of any other right or remedy.
12. SUCCESSORS AND ASSIGNS. All rights of Lender hereunder shall inure
to the benefit of Lender. All obligations of Borrower shall bind the successors
and assigns of Borrower.
13. TERMINATION. This Agreement may be terminated by Borrower by the
payment of all Liabilities, if not earlier terminated as provided herein.
Termination of this Agreement shall not in any way affect the rights and
liabilities of the parties hereunder relating to Collateral pledged prior to the
date specified in such notice.
14. MISCELLANEOUS, Time is of the essence of this Agreement. The
provisions of this Agreement are cumulative and in addition to the provisions of
any liability and any note or other writing evidencing any Liability secured by
this Agreement, and Lender shall have all the benefits, rights, and remedies of
any liability and any note or other writing evidencing any Liability secured
hereby. The singular pronoun when used herein, shall include the plural, and the
neuter shall include the masculine and FEMININE. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provisions of this
Agreement shall be prohibited by or invalid under applicable law, such
provisions shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement. The paragraph headings used herein are for convenience of
reference only and shall not be considered to expand, limit or otherwise
construe the terms of this Agreement.
Agreed to as of the date first set forth above.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /S/ J. NEAL HUTCHINSON, JR.
Name: J.N. HUTCHINSON
Title: ASSISTANT VICE PRESIDENT
[SIGNATURES CONTINUED ON NEXT PAGE]
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STRATA HOLDING, INC.
By: /S/ DON COOK
Name: DON COOK
Its: PRESIDENT
READY FINANCE, INC.
By: /S/ DON COOK
Name: DON COOK
Its: PRESIDENT
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EXHIBIT 4.9
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement"), entered into as of this 27th
day of June 1997 by and between SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida
corporation having offices at 5200 South Washington Avenue, Titusville, Florida
(the "Company"), and DONALD COOK, an individual residing at 910 Patrick Circle
South, West Palm Beach, Florida 33406 (the "Consultant");
W I T N E S S E T H :
WHEREAS, the Consultant has extensive experience relating to all
aspects of the management and operation of automobile dealerships for used cars,
including (without limitation) leasing and other financing activities in
connection therewith; and
WHEREAS, the Consultant has heretofore been one of the principal
Consultants and Chief Executive Officer of and employed by Strata Holding, Inc.
(d/b/a Don Cook Motors) and Ready Finance, Inc., both of which are being
acquired by the Company on or about the date hereof; and
WHEREAS, to promote the ongoing business of the Company, the Company
desires to assure and protect itself and therefore restrict the activities from
and after the date hereof, on the terms and conditions of this Agreement; and
WHEREAS, the Consultant is willing and able to render his services to
the Company from and after the date hereof, on the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. NATURE OF CONSULTING SERVICES.
(a) Subject to the terms and conditions of this Agreement, the
Company shall retain the Consultant, and the Consultant shall render consulting
services to the Company. In such capacity, the Consultant shall have and
exercise responsibility for providing consulting services as to the operation of
the business of Don Cook Motors and Ready Finance, Inc. and assist in an orderly
transition of ownership, participating in all aspects of the Company's
day-to-day automobile sales business, together with such other similar or
related duties as may be assigned to the Consultant from time to time by the
Company's executive management. The Consultant may also be given additional
duties, and responsibilities on behalf of certain of the Company's affiliates,
without requirement of additional compensation hereunder.
(b) Throughout the period of his consulting employment hereunder,
the Consultant shall: (i) devote his full business time, attention, knowledge
and skills, faithfully,
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diligently and to the best of his ability, to the active performance of his
duties and responsibilities hereunder on behalf of the Company; (ii) observe and
carry out such reasonable rules, regulations, policies, directions and
restrictions as may be established from time to time by the Company's executive
management, including but not limited to the standard policies and procedures of
the Company as in effect from time to time; and (iii) do such traveling as may
reasonably be required in connection with the performance of such duties and
responsibilities; provided, however, that the Consultant shall not be assigned
to regular duties that would reasonably require him to relocate his permanent
residence from that first set forth above.
2. TERM OF CONSULTING AGREEMENT.
(a) Subject to prior termination in accordance with paragraph 2(b)
below, the term of this Agreement and the Consultant's employment hereunder
shall commence on the date hereof and shall continue through June 27, 2002.
(b) This Agreement may be terminated:
(i) upon mutual written agreement of the Company and the
Consultant;
(ii) at the option of the Consultant, upon fourteen (14) days
prior written notice to the Company, in the event that the Company shall (A)
fail to make any payment to the Consultant required to be made under the terms
of this Agreement within fifteen (15) days after payment is due, or (B) fail to
perform any other material covenant or agreement to be performed by it hereunder
or take any action prohibited by this Agreement, and fail to cure or remedy same
(if capable of being cured or remedied) within thirty (30) days after written
notice thereof to the Company;
(iii) at the option of the Company upon written notice to the
Consultant "for cause" (as hereinafter defined);
(iv) at the option of the Company in the event of the "permanent
disability" (as hereinafter defined) of the Consultant; or
(v) upon the death of the Consultant.
(c) As used herein, the term "for cause" shall mean and be limited
to: (i) any material breach of this Agreement by the Consultant which in any
case is not fully corrected within thirty (30) days after written notice of same
from the Company to the Consultant; (ii) gross neglect by the Consultant of his
duties and responsibilities hereunder which in any case is not fully corrected
immediately upon written notice of same from the Company to the Consultant;
(iii) any fraud, criminal misconduct, breach of fiduciary duty, dishonesty, or
gross and willful misconduct by the Consultant in connection with the
performance of his duties and responsibilities hereunder; or (iv) the commission
by the Consultant of any crime of moral turpitude, or any other action by the
Consultant which may materially impair or damage the reputation of the Company.
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(d) As used herein, the term "permanent disability" shall mean, and
be limited to, any physical or mental illness, disability or impairment that
prevents the Consultant from continuing the performance of his normal duties and
responsibilities hereunder for a period in excess of three (3) consecutive
months. For purposes of determining whether a "permanent disability" has
occurred under this Agreement, the written determination thereof by a qualified
practicing physician selected and paid for by the Company (and reasonably
acceptable to the Consultant) shall be conclusive.
(e) Upon any termination of this Agreement as hereinabove provided,
the Consultant (or his estate or legal representatives, as the case may be)
shall be entitled to receive any and all unpaid compensation appropriately
prorated to and as of the effective date of termination (based on the number of
days elapsed prior to the date of termination) and any other amounts then due
and payable to the Consultant hereunder. All such payments shall be made on the
next applicable payment date therefor (as provided in paragraph 3 below)
following the effective date of termination. Such payments shall constitute all
amounts to which the Consultant shall be entitled hereunder upon termination of
this Agreement.
3. CONSULTING FEE AND EXPENSES.
(a) CONSULTING FEE. As compensation for his services to be rendered
hereunder, the Company shall pay to the Consultant a fee of Sixteen Thousand Six
Hundred Sixty-Seven Dollars ($16,667) per month through December 1997.
Commencing July 1, 2001 the Company shall pay the Consultant Eight Thousand Five
Hundred Forty-Two Dollars ($8,542) per month through June 2002. Commencing July
1, 2002 the Company shall pay the Consultant Eight Thousand Seven Hundred
Fifty-Five Dollars ($8,755) per month. This Agreement terminates on the fifth
anniversary of the Closing Date.
(b) EXPENSES. Throughout the term of this Agreement, upon prior
written approval, the Company shall reimburse the Consultant, upon presentment
by the Consultant to the Company of appropriate receipts and vouchers therefor,
for any reasonable out-of-pocket business expenses incurred by the Consultant in
connection with the performance of his duties and responsibilities hereunder;
PROVIDED, HOWEVER, that no reimbursement shall be required to be made for any
expense which is not properly deductible (in whole or in part) by the Company
for income tax purposes, or for any expense item which has not previously been
approved in accordance with the Company's standard policies and procedures in
effect from time to time.
4. NON-ASSIGNABILITY.
In light of the unique personal services to be performed by the
Consultant hereunder, it is acknowledged and agreed that any purported or
attempted assignment or transfer by the Consultant of this Agreement or any of
his duties, responsibilities or obligations hereunder shall be void.
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5. NOTICES.
Any notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been given when delivered personally or three (3) days after being mailed by
certified mail, return receipt requested, addressed to the party being notified
at the address of such party first set forth above, or at such other address as
such party may hereafter have designated by notice; PROVIDED, HOWEVER, that any
notice of change of address shall not be effective until its receipt by the
party to be charged therewith.
6. GENERAL.
(a) Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged therewith. Any waiver or
amendment shall only be applicable in the specific instance, and shall not
constitute or be construed as a waiver or amendment in any other or subsequent
instance. No failure or delay on the part of either party in respect of any
enforcement of obligations hereunder shall in any manner affect such party's
right to seek or effect enforcement at any other time or in respect of any other
required performance.
(b) Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the express prior written consent of the
other party.
(c) The captions and paragraph headings used in this Agreement are
for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
(d) This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be governed,
construed and controlled by and under the laws of the State of Florida.
(e) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
(f) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original hereof, but all of which
together shall constitute one and the same instrument.
(g) This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
(h) This Agreement is intended for the sole and exclusive benefit
of the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors
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and permitted assigns, and no other person or entity shall have any right to
rely on this Agreement or to claim or derive any benefit herefrom absent the
express written consent of the party to be charged with such reliance or
benefit.
(i) If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require; and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement on and as of the date first set forth above.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /S/ J. NEAL HUTCHINSON, JR.
Assistant Vice President
/S/ DONALD COOK
DONALD COOK
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EXHIBIT 4.10
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT (this "Agreement"), entered into as of this
27th day of June 1997 by and between SMART CHOICE AUTOMOTIVE GROUP, INC., a
Florida corporation having offices at 5200 South Washington Avenue, Titusville,
Florida (the "Company"), and DONALD COOK, an individual residing at 910 Patrick
Circle South, West Palm Beach, Florida 33406 (the "Shareholder");
W I T N E S S E T H :
WHEREAS, the Shareholder has extensive experience relating to all
aspects of the management and operation of automobile dealerships for used cars,
including (without limitation) leasing and other financing activities in
connection therewith; and
WHEREAS, the Shareholder has heretofore been one of the principal
Shareholders and Chief Executive Officer of and employed by Strata Holding, Inc.
(d/b/a Don Cook Motors) and Ready Finance, Inc., both of which are being
acquired by the Company on the date hereof; and
WHEREAS, to promote the ongoing business of the Company, the Company
desires to assure and protect itself and therefore restrict the activities from
and after the date hereof, on the terms and conditions of this Agreement; and
WHEREAS, the Shareholder is willing and able to restrict his activities
in the automobile business from and after the date hereof, on the terms and
conditions of this Agreement, in order to induce the Company to purchase his
automobile dealership;
NOW, THEREFORE, Shareholder covenants and agrees with the Company as
follows:
1. NATURE OF NON-COMPETE AND RESTRICTED AREA. The Shareholder shall
not at any time, directly or indirectly, for himself or for any other person,
firm, corporation, partnership, association or other entity which competes in
any manner in the used car business (unless ancillary to new car sales) with the
Company or any of its subsidiaries or affiliates within fifty (50) miles of a
used car sales or finance location of the Company in the State of Florida (the
"Restricted Territory"), knowingly employ, attempt to employ or enter into any
contractual arrangement for employment with, any employee or former employee of
the Company or any of its subsidiaries or affiliates, unless such former
employee shall not have been employed by the Company or any of its subsidiaries
or affiliates for a period of at least one year.
2. TERM OF NON-COMPETE. He shall not, and for a period of three years
from and after the date hereof, directly or indirectly: (i) acquire or own in
any manner any interest in, or loan any amount to, any person, firm,
partnership, corporation, association, or other entity which competes with the
Company in the used car business (unless ancillary to new car sales) or any of
its subsidiaries or affiliates in the Restricted Territory, (ii) be employed by
or serve as an
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employee, agent, officer, director of, or as a consultant to, any person, firm,
partnership, corporation, association or other entity which competes with the
Company in the used car business (unless ancillary to new car sales) or its
subsidiaries or affiliates in the Restricted Territory, or (iii) compete in any
manner with the Company in the used car business (unless ancillary to new car
sales) or its subsidiaries or affiliates in the Restricted Territory.
3. CONFIDENTIAL INFORMATION. In the course of the Shareholder's
employment by Strata Holding, Inc. and Ready Finance, Inc. (the "Sellers"), the
Shareholder has had access to "confidential or proprietary data or information"
of the Sellers, its subsidiaries and affiliates and may have access to the
Company's confidential or proprietary data or information. The Shareholder shall
not at any time divulge or communicate to any person, or use to the detriment of
the Company, its subsidiaries or affiliates, or for the benefit of himself or
any other person, any such confidential or proprietary data or information. The
Term "confidential or proprietary data or information" as used in this Agreement
shall mean information which is proprietary to the Sellers or the Company not
generally available to the public, including, without limitation, personnel
information, financial information, customer lists, supplier lists, ownership
information, plans, analyses, trade secrets, management agreements, know-how,
marketing plans, leases and computer software and any other processed or
collected data. The Shareholder acknowledges and covenants that any confidential
or proprietary data or information he has acquired for or with respect to the
Sellers, its subsidiaries or affiliates has been received in confidence and as a
fiduciary with respect to the Company, its subsidiaries and affiliates.
4. BREACH OR VIOLATION. It is recognized and acknowledged by each of
the Company and the Shareholder that a breach or violation by the Shareholder of
any or all of his covenants and agreements contained in this Agreement will
cause irreparable harm and damage to the Company and its subsidiaries and
affiliates in a monetary amount which would be virtually impossible to
ascertain. The Shareholder recognizes that the Company may not have an adequate
remedy at law in the event that he breaches any of the provisions of this
Agreement. Accordingly, in the event of a breach of any of the terms or
provisions of this Agreement by the Shareholder, the Company shall have resort
to all equitable remedies, including the remedy of specific performance, the
remedy of injunction, both permanent and temporary, as well as any other
remedies which may be available at law or in equity.
5. ENFORCEABILITY. It is the desire and intent of the parties that the
provisions of sections 1, 2 and 3 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If any particular portion of sections 1, 2 or 3
shall be adjudicated to be invalid or unenforceable, such provision shall be
deemed amended to delete from that section the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of such section in the particular jurisdiction in which such
adjudication is made; provided, however, if any of the restrictions contained in
sections 1, 2 or 3 should be deemed to be unenforceable by reason of their
extent, duration or geographic scope or otherwise, then the court making such
termination
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shall have the right to reduce such extent, duration, geographic scope or other
provisions, and in its reduced form such sections shall then be enforceable in
the manner contemplated.
6. NON-COMPETITION FEE. As compensation for restriction of his
activities hereunder, the Company shall pay to the Shareholder a fee of Eight
Thousand Three Hundred Thirty-Three and No/100 Dollars ($8,333.00) per month for
a period of twenty-four (24) months after the date herein.
7. DEFAULT AND TERMINATION. In the event that the Company fails to make
a timely payment to the Shareholder under this Agreement or pursuant to the
Subordinated Notes, delivered by the Company to the Shareholder on the date
hereof, the Company shall have 180 days to cure such default. If such default
continues for longer than 180 days, the Shareholder shall terminate this
Agreement.
8. NOTICES. Any notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been given when delivered personally or three (3) days after
being mailed by certified mail, return receipt requested, addressed to the party
being notified at the address of such party first set forth above, or at such
other address as such party may hereafter have designated by notice; PROVIDED,
HOWEVER, that any notice of change of address shall not be effective until its
receipt by the party to be charged therewith.
9. GENERAL.
(a) Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged therewith. Any waiver or
amendment shall only be applicable in the specific instance, and shall not
constitute or be construed as a waiver or amendment in any other or subsequent
instance. No failure or delay on the part of either party in respect of any
enforcement of obligations hereunder shall in any manner affect such party's
right to seek or effect enforcement at any other time or in respect of any other
required performance.
(b) Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the express prior written consent of the
other party.
(c) The captions and paragraph headings used in this Agreement are
for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
(d) This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be governed,
construed and controlled by and under the laws of the State of Florida.
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(e) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
(f) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original hereof, but all of which
together shall constitute one and the same instrument.
(g) This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
(h) This Agreement is intended for the sole and exclusive benefit
of the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns, and no other person
or entity shall have any right to rely on this Agreement or to claim or derive
any benefit herefrom absent the express written consent of the party to be
charged with such reliance or benefit.
(i) If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require; and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Non-Competition Agreement on and as of the date first set forth above.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /S/ J. NEAL HUTCHINSON, JR.
Assistant Vice President
/S/ DONALD COOK
DONALD COOK
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SCHEDULE 2.12
This instrument was prepared by
and should be returned to:
MEMORANDUM OF LEASE AGREEMENT
(Ready Finance Property)
This is a Memorandum of that certain unrecorded Lease Agreement dated
June 30, 1997, by and between BOATMART, INC., a Florida corporation (the
"Lessor"), whose address is P.O. Box West Palm Beach, Florida 33416, and FIRST
CHOICE AUTO FINANCE, INC., a Florida corporation (the "Lessee"), whose address
5200 South Washington Avenue, Titusville, FL 32780 (the "Lease"), concerning the
Premises (as described below).
FOR GOOD AND VALUABLE CONSIDERATION, Lessor leases to Lessee the
Premises which are described as follows (the "Premises"):
(a) Certain real property lying and being in Palm Beach
County, Florida, located at 1575 South Military Trail, West
Palm Beach, Florida (162' frontage by 450' deep, 72,000 square
feet); and
(b) All buildings, structures and improvements now or
hereafter erected on such land either prior to the
commencement of or during the term of the Lease and all
fixtures, alarm systems, light fixtures, ceiling fans, air
conditioning, heating, plumbing, electrical and other utility
systems, equipment and other property located therein both
prior to the commencement of and during the term of the Lease
for a term of five (5) years commencing on July 1, 1997, and terminating on July
1, 2002 , at 11:59 P.M., pursuant to the terms and under the provisions
contained in the Lease, such Lease being incorporated in this Memorandum by this
reference as though set forth in full herein. Tenant has the right to extend the
Lease for three (3) consecutive terms of five (5) years each.
Pursuant to the terms of the Lease, Lessor grants to Lessee the right
of first refusal to purchase the Premises upon the terms and subject to the
conditions set forth in the Lease.
The Lease contains the following provision: "Pursuant to FLORIDA
STATUTES, Section 713.10, notice is hereby given that Lessor shall not be liable
for any labor or materials furnished or to be furnished to Lessee, and that no
construction or other lien for any such labor or materials shall attach to or
affect the reversionary or other estate or interest of Lessor in and to the
Premises."
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Accordingly, all contractors, subcontractors, mechanics, laborers, materialmen
and others who perform any work, labor or services, or furnish any materials or
otherwise participate in the construction if improvements on the Premises, are
hereby given notice that Lessee is not authorized to subject Lessor's interest
in the Premises to any claim from mechanic's, construction, laborer's,
materialmen's liens, or other liens, and all persons dealing directly or
indirectly with Lessee may not look to the interest of Lessor in and to the
Premises as security for payment of such labor, services or materials.
This Memorandum is not a complete summary of the Lease and is made and
executed by the parties hereto for the purpose of recording the same in the
Public Records of Palm Beach County, Florida. Provisions in this Memorandum
shall not be used in interpreting the Lease provisions. In the event of conflict
between this Memorandum and the Lease, the Lease shall control.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease
on the 30th day of June, 1997.
WITNESSES: LESSOR:
/S/ TOM CONLAN BOATMART, INC., A FLORIDA CORPORATION
Print Name: TOM CONLAN
/S/ JAN CRANK By: /S/ MADIE A. STRATEMEYER
Print Name: MADIE A. STRATEMEYER
Print Name: JAN CRANK Title: PRESIDENT
Date signed: 6-30-97
LESSEE:
/S/ JAMES VARNADOE FIRST CHOICE AUTO FINANCE, INC.,
A FLORIDA CORPORATION
Print Name: JAMES VARNADOE
/S/ BRUCE E. MACDONOUGH By: /S/ J. NEAL HUTCHINSON, JR.
Print Name: J. N. HUTCHINSON, JR.
Print Name: BRUCE E. MACDONOUGH Title: V.P.
Date signed: 6/30/97
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STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 30 day of
June, 1997, by Madie A. Stratemeyer, as President BOATMART, INC., a Florida
corporation, on behalf of the corporation. She is personally known to me (X) or
has produced ______________________ as identification.
/S/ JANICE M. CRANK
NOTARY PUBLIC
Print Name: JANICE M. CRANK
My Commission Expires:
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 30 day of
June, 1997, by J. N. Hutchinson, as Vice President of FIRST CHOICE AUTO FINANCE,
INC., a Florida corporation, on behalf of the corporation. He is personally
known to me (X) or has produced _______________________ as identification.
/S/ ELIZABETH A. ZYGMUNTOWICZ
NOTARY PUBLIC
Print Name: ELIZABETH A. ZYGMUNTOWICZ
My Commission Expires:
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ASSIGNMENT AND ASSUMPTION OF LEASE
AND INDEMNIFICATION AGREEMENT
(North Palm Beach Lease)
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND INDEMNIFICATION AGREEMENT
(the "Assignment") is made and entered into this 30th day of June, 1997, by and
between STRATA HOLDING, INC., a Florida corporation, d/b/a DON COOK MOTORS (the
"Assignor"), and FIRST CHOICE AUTO FINANCE, INC., a Florida corporation (the
"Assignee").
R E C I T A L S:
A. Assignor, as Lessee, and BIG PALM PROPERTIES, INC., a Florida
corporation, as Lessor (the "Lessor"), entered into that certain Lease dated as
of May 15, 1997 (the "Lease"), a copy of which is attached hereto as EXHIBIT "A"
and incorporated herein by this reference, which Lease pertains to certain
property located at 500 Northlake Boulevard, Lake Park, Palm Beach County,
Florida 33408, as more particularly described in the Lease (the "Demised
Premises").
B. Assignor has on this day transferred, sold and conveyed to Assignee
certain assets of Assignor used or usable by Assignor in the operation of an
automobile dealership business (the "Business") from the Demised Premises.
C. In connection with sale to Assignee of those certain assets of
Assignor used or usable by Assignor in the operation of the Business, Assignor
is desirous of assigning to Assignee all of Assignor's rights, title and
interest in and to the Lease, and Assignee is willing to accept such assignment
of the Lease and assume Assignor's obligations under the Lease from and after
the date of this Assignment.
NOW, THEREFORE, in consideration of the foregoing and the agreements
and covenants herein set forth, the sum of Ten and No/100 Dollars ($10.00), and
other good and valuable consideration paid by Assignee to Assignor, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The above Recitals are true and correct and are incorporated herein
by this reference.
2. Assignor does hereby assign, transfer, set over and deliver unto
Assignee the Lease, subject to all terms, conditions, reservations and
limitations set forth in the Lease, and all of Assignor's right, title and
interest in and to the Lease, including, but not limited to, all of Assignor's
right, title and interest in and to the last month's rent in the amount of
$3,180.00 (including 6% sales tax) paid by Assignor to Lessor pursuant to
Section 1.06 of the Lease and the right of first refusal to purchase the Demised
Premises pursuant to Section 5.11 of the Lease.
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3. Assignee hereby accepts the foregoing assignment and hereby assumes
and agrees to perform all of the terms, covenants and conditions of the Lease,
on the part of the Lessee therein to be performed from and after the date
hereof.
4. Assignor hereby represents and warrants as follows:
a. That Assignor has not entered into or executed a prior
assignment of the Lease.
b. That Assignor has full authority to enter into this Assignment,
and the execution hereof is not precluded or prohibited in any manner or for any
reason whatsoever.
c. That the Lease is in full force and effect according to its
terms, and no default exists under the Lease. Exhibit "A" attached hereto is a
true and complete copy of the Lease and all amendments thereto.
d. That the term of the Lease commenced on May 1, 1997.
e. That there exists no facts and no events have occurred which,
with the passage of time or the giving of notice or both, would constitute a
breach or default on the part of either party under the Lease.
f. That the current monthly rent due under the Lease is $3,000.00,
which EXCLUDES sales tax at the rate of 6% and such rent has been paid in full
through and including June 30, 1997.
g. Pursuant to the terms of Section 1.05 of the Lease, beginning on
April 30, 1998, and every year thereafter during the term of the Lease the
annual rent due under the Lease shall increase at a rate of 4% per year.
h. Assignor has paid Lessor the sum of $3,180.00 (including 6%
sales tax) which sum, pursuant to the terms of the Lease, represents the last
monthly installment of annual rent under the Lease, together with sales tax
thereon.
i. Assignor has received no notice from any governmental authority
nor does Assignor have any knowledge that the Demised Premises, or any part
thereof, is in violation of any applicable laws, ordinances, regulations,
statutes or other governmental rules.
5. Assignee hereby represents and that Assignee has full authority to
enter into this Assignment, and the execution hereof is not precluded or
prohibited in any manner or for any reason whatsoever.
6. Assignor covenants and agrees to indemnify, defend and hold Assignee
harmless from and against any and all claims, actions, damages, liabilities and
expenses (including without limitations, reasonable attorneys' fees and court
costs whether incurred at trial, appellate level and/or bankruptcy or other
creditor's rights proceedings) imposed on, incurred by or asserted
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against Assignee by reason of or arising under the Lease prior to the date of
this Assignment, including, but not limited to losses, liabilities (including
strict liability), damages, injuries, expenses, including reasonable attorney's
fees, costs of any settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by or against Assignee by any person, or
entity or governmental agency for, with respect to, or as a direct or indirect
result of any release, escape, discharge, seepage, leakage, spillage or emission
from the Demised Premises of any Hazardous Substance (as that term is defined in
the Lease) or any violation of any Federal, state or local environmental law
occurring before the date of this Assignment.
7. Assignee covenants and agrees to indemnify, defend and hold Assignor
harmless from and against any and all claims, actions, damages, liabilities and
expenses (including without limitation, reasonable attorneys' fees and court
costs whether incurred at trial, appellate level and/or bankruptcy or other
creditor's rights proceedings) imposed on, incurred by or asserted against
Assignor by reason of or arising under the Lease from and after the date of this
Assignment, including, but not limited to losses, liabilities (including strict
liability), damages, injuries, expenses, including reasonable attorney's fees,
costs of any settlement or judgment and claims of any and every kind whatsoever
paid, incurred or suffered by or against Assignee by any person, or entity or
governmental agency for, with respect to, or as a direct or indirect result of
any release, escape, discharge, seepage, leakage, spillage or emission from the
Demised Premises of any Hazardous Substance (as that term is defined in the
Lease) or any violation of any Federal, state or local environmental law
occurring after the date of this Assignment.
. 8. All of the covenants, terms and conditions set forth in this
Assignment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
9. This Assignment shall be construed and enforced in accordance with
the laws of the State of Florida.
10. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall be deemed to be a
single instrument and shall be effective when one or more counterparts have been
signed by each of the parties.
11. In the event that either party finds it necessary to employ an
attorney to enforce any of the provisions of this Assignment, the prevailing
party shall be entitled to recover from the other party reasonable attorneys'
fees and costs incurred in connection therewith, at both trial and appellate
levels, including bankruptcy proceedings, whether such fees are involved in
monitoring the bankruptcy proceeding or are incurred in active litigation within
such proceeding, in addition to any other performances or damages to which the
party may be entitled.
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IN WITNESS WHEREOF, this Assignment and Assumption of Lease and
Indemnification Agreement has been executed by the parties hereto in a manner
and form sufficient to bind them on the day and year first above written.
Signed, sealed and delivered in the presence of:
WITNESSES: ASSIGNOR:
STRATA HOLDING, INC.,
a Florida corporation
/S/ TOM CONLAN By: /S/ DON COOK
Print Name: TOM CONLAN Print Name: DON COOK
/S/ JAN CRANK Its: PRESIDENT
Print Name: JAN CRANK
ASSIGNEE:
FIRST CHOICE AUTO FINANCE, INC.,
a Florida corporation
By: /S/ J. NEAL HUTCHINSON, JR.
Print Name: Print Name: J.N. HUTCHINSON, JR.
Its: V.P.
Print Name:
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JOINDER AND CONSENT OF LESSOR
BIG PALM PROPERTIES, INC., a Florida corporation, as the Lessor under
the Lease, pursuant to the terms of Section 5.01 of the Lease, hereby consents
to the assignment and transfer of the Lease by Assignor to Assignee and to the
assumption of the Lease and all terms and conditions therein by Assignee.
Lessors hereby warrant and represent to Assignor and Assignee as
follows:
1. The Lease is in full force and effect and that no default exists
under the Lease. Exhibit "A" attached hereto is a true and complete copy of the
Lease and all amendments thereto.
2. That the term of the Lease commenced on May 1, 1997.
3. There exists no facts and no event has occurred which, with the
passage of time or the giving of notice or both, would constitute a breach or
default on the part of either party under the Lease.
4. The current monthly rent due under the Lease is $3,000.00, which
EXCLUDES sales tax at the rate of 6% and such rent has been paid in full through
and including June 30, 1997.
5. Pursuant to the terms of Section 1.05 of the Lease, beginning on
April 30, 1998, and every year thereafter during the term of the Lease the
annual rent due under the Lease shall increase at a rate of 4% per year.
6. Assignor has paid Lessor the sum of $3,180.00 (including 6% sales
tax) which sum, pursuant to the terms of the Lease, represents the last monthly
installment of annual rent under the Lease, together with sales tax thereon.
7. Lessor has received no notice from any governmental authority nor
does Lessor have any knowledge that the Demised Premises, or any part thereof,
is in violation of any applicable laws, ordinances, regulations, statutes or
governmental rules.
8. There are no eminent domain proceedings currently pending which
affect the Demised Premises nor does Lessor have any knowledge of any threatened
or contemplated eminent domain proceedings which will affect the Demised
Premises.
9. Assignee has a right of first refusal to purchase the Demised
Premises pursuant to Section 5.11 of the Lease. Assignee's right of first
refusal exists throughout the term and any extended or renewal terms of the
Lease.
10. The use of the Demised Premises as an automobile dealership is
permitted under the current zoning classifications for the Demised Premises.
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IN WITNESS WHEREOF, this Joinder and Consent of Lessor which is a part
of the Assignment and Assumption of Lease and Indemnification Agreement has been
executed by the Lessor in a manner and form sufficient to bind Lessor on the day
and year set forth hereinbelow.
Signed, sealed and delivered
in the presence of:
WITNESSES: LESSOR:
BIG PALM PROPERTIES, INC.,
a Florida corporation
By: /S/ AL BRUNO, JR.
Print Name: Print Name: AL BRUNO, JR.
Its: PRESIDENT
Print Name: Date: 6-26-97
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EXHIBIT "A"
LEASE
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LEASE AGREEMENT
(Don Cook Motors Property)
THIS LEASE AGREEMENT (the "Lease") is made this 30th day of June, 1997,
by and between STRATA REALTY, INC., a Florida corporation (the "Lessor"), whose
address is 1589 S. Military Trail, West Palm Beach, Florida, and FIRST CHOICE
AUTO FINANCE, INC., a Florida corporation (the "Lessee"), whose address is 5200
South Washington Avenue, Titusville, Florida 32780.
W I T N E S S E T H:
That the Lessor, for and in consideration of the covenants and
agreements hereinafter set forth and the rent hereinafter specifically reserved,
does hereby Lease unto the Lessee the "Premises" identified herein in accordance
with the following terms and conditions:
PREMISES
1.01 Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor the following property (collectively, the "Premises"):
(a) See EXHIBIT "A" attached hereto and incorporated herein by this
reference.
(b) All buildings, structures and improvements (collectively, the
"Buildings") now or hereafter erected on such land either prior to the
commencement of or during the term of this Lease and all fixtures, alarm
systems, light fixtures, ceiling fans, air-conditioning, heating, plumbing,
electrical and other utility systems, equipment and other property located
therein both prior to the commencement of and during the term of this Lease (all
of the foregoing including the Buildings are collectively, the "Improvements").
1.02 Lessor reserves, and Lessee acknowledges and recognizes, Lessor's
right, title and interest in and to an existing fifty (50) feet ingress/egress
easement over the Premises to obtain access to the property located to the rear
of the Premises.
TERM
2.01 The primary term of this Lease shall be for a period of five (5)
year(s) commencing on July 1, 1997, and terminating on July 1, 2002 at 11:59
p.m., unless sooner terminated pursuant to the provisions of this Lease (the
"Primary Term").
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2.02 Upon the expiration of the Primary Term of this Lease, and
provided Lessee is not then in default hereunder, Lessee shall have the option
to extend this Lease for three (3) consecutive additional periods of five (5)
years (the "Option Terms"). In order to exercise any of these options, Lessee
must give Lessor notice in writing of its intent to exercise the option to
extend at least sixty (60) days prior to the expiration of the Primary Term, or
the first or second Option Term, as the case may be. The rights of Lessor and
Lessee during the Option Terms, if any, shall be governed by the terms and
conditions of the Lease.
2.03 For purposes of this Lease the Primary Term and the Option Terms
are sometimes hereinafter collectively referred to as the "Term".
RENT
3.01 The annual rent for the use and occupancy of the Premises during
the Primary Term shall be Fifty-Six Thousand and No/100 Dollars ($56,000.00),
which shall be paid by Lessee to Lessor in equal monthly installments of Four
Thousand Six Hundred Sixty-Six and 67/100 Dollars ($4,666.67). The total rent
for the Primary Term is Two Hundred Eighty Thousand and No/100 Dollars
($280,000.00), except as may be modified by Section 3.02 hereof. The annual rent
for the use and occupancy of the Premises during the Option Terms shall be One
Hundred Fifty-Six Thousand and No/100 Dollars ($156,000.00), which shall be paid
by Lessee to Lessor in equal monthly installments of Thirteen Thousand and
No/100 Dollars ($13,000.00), subject to adjustment pursuant to Section 3.02. The
total rent for each Option Terms is Seven Hundred Eighty Thousand and No/100
Dollars ($780,000.00), except as may be modified by Section 3.02 hereof.
Notwithstanding anything contained herein to the contrary, no payment of rent
shall be due and payable to Lessor until the Rental Commencement Date (as
hereinafter defined).
3.02 (a) In view of the fluctuating purchasing power of the dollar, the
parties hereto, desiring to adjust the above described fixed rent to such
purchasing power, agree that adjustments shall be made in the fixed rent from
time to time as hereinafter provided, so as to reflect as early as possible such
fluctuations. The parties hereto adopt as the standard for measuring such
fluctuations the United States Bureau of Labor Statistics Consumer Price Index
for Urban Wage Earners and Clerical Workers (Revised Series), All Items, U.S.
City Average (the "Index"). The Index for a specific date (as required by this
Lease) shall be deemed to mean the Index published on that date or, if not
published on that date, the most recent publication of the Index prior to such
date. If the publication of the Index shall be discontinued, "Index" shall be
such other source selected by Lessor, in its sole and reasonable judgment, as is
most nearly comparable to the Index as defined above. The first adjustment shall
be made at the end of the Primary Term, and shall become effective on the first
(1st) day of the first Lease Year of the first Option Term, and a like
adjustment shall be made at the end of each subsequent Lease Year of the each of
the Option Term(s).
(b) Commencing at the end of the Primary Term of this Lease, the
annual rent for the first Lease Year of the first Option Term and each
subsequent Lease Year of the Option Term(s), if any, shall be adjusted annually
as follows:
(i) The annual rent for the immediately preceding Lease Year of the
Term of this Lease shall be multiplied by a fraction, the numerator of which
shall be the Index for the month which is three (3) months prior to the first
month of the next ensuing Lease Year and the denominator
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of which shall be the Index for the month which is two (2) months prior to the
commencement of the immediately preceding Lease Year.
(ii) The figure resulting from the calculations set forth above
shall be the new annual rent amount for the next ensuing Lease Year. Provided,
however, notwithstanding anything to the contrary contained in this paragraph
3.02, in no event shall the annual rent due and payable hereunder be either: (A)
LESS for any successive Lease Year than One Hundred percent (100%) of the annual
rent paid during the immediately preceding Lease Year regardless of the value of
the dollar as reflected by said Index; or (B) MORE for any successive Lease Year
than One Hundred and Three percent (103%) of the annual rent paid during the
immediately preceding Lease Year regardless of the value of the dollar as
reflected by said Index.
3.03 The annual rent due during any Lease Year of the Term of this
Lease, shall be paid by Lessee to Lessor in equal monthly installments, together
with any applicable sales tax due thereon. Such monthly payment shall be due and
payable in advance, beginning on the Rental Commencement Date, and continuing on
the first (1st) day of each month thereafter during the Term.
3.04 If the Rental Commencement Date (as hereinafter defined) is a day
other than the first day of a calendar month, then Lessee shall pay on the
Rental Commencement Date a prorata portion of the fixed monthly rent described
in the foregoing paragraphs, prorated on a per diem basis with respect to the
fractional calendar month at the beginning of the Lease Year.
3.05 The following words shall have the following definitions
throughout this Lease. The term "Lease Year" shall mean for the first Lease
Year, that period commencing with the Rental Commencement Date and ending on the
last day of the 12th full calendar month following the Rental Commencement Date;
and for each succeeding Lease Year, that period commencing with the first day of
the calendar month after termination of the preceding Lease Year, and ending on
the last day of the 12th month thereafter. The term "Calendar Year" shall mean
for the first Calendar Year, the period commencing with the Rental Commencement
Date and ending December 31st of the year in which the Primary Term of this
Lease commenced; and for each succeeding Calendar Year, that period commencing
on January 1st and ending December 31st of that year; and for the last Calendar
Year, that period commencing January 1st of the last year of the Term of this
Lease, and ending on the termination date of such Term. The term "Rental
Commencement Date" shall mean June 30, 1997.
3.06 The total monthly payment due hereunder, which includes the rent,
shall be paid by Lessee to Lessor without notice or demand, and without
abatement, reduction, setoff, counterclaim, defense or deduction, except as
specifically provided herein, and shall be paid to Lessor in lawful money of the
United States.
3.07 Lessee will promptly pay all rent and other charges and render all
statements herein prescribed at the office of Lessor at 1589 S. Military Trail,
West Palm Beach, Florida 33415, or to such other person or corporation and at
such other physical street address, as shall be designated by Lessor in writing
at least ten (10) days prior to the next ensuing rent payment date.
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ADDITIONAL RENT
4.01 All taxes, including real estate taxes, insurance premiums,
charges, costs, and expenses that Lessee assumes or agrees to pay hereunder,
together with any applicable Florida State sales and/or use tax, and together
with all interest and penalties that may accrue thereon in the event of the
failure of Lessee to pay those items, and all other damages, costs, expenses,
and sums that the Lessor may suffer or incur, or that may become due, by reason
of any default of Lessee or failure by Lessee to comply with the terms and
conditions of this Lease, shall be deemed to be "additional rent" and shall be
due and payable immediately and, in the event of non-payment, Lessor shall have
all the rights and remedies as herein provided for failure to pay rent.
LATE CHARGE
5.01 Lessee agrees to pay Lessor a late charge of five percent (5%) of
each payment of rent required to be paid by Lessee hereunder not received by
Lessor within fifteen (15) days of the due date thereof. It is agreed by the
parties hereto that said late charge shall be for reimbursement to Lessor for
collection charges incurred as a result of the overdue rent and/or additional
rent. In the event that any check, bank draft, order for payment or negotiable
instrument given to Lessor for any payment under this Lease shall be dishonored
for any reason whatsoever not attributable to Lessor, Lessor shall be entitled
to make an administrative charge to Lessee of Fifty Dollars ($50.00).
PROPERTY TAXES
6.01 Lessee shall be responsible to pay any and all real estate taxes
due with respect to the Premises during the term of this Lease based on the
highest available discount (i.e. payment amount in November). For fractions of a
calendar month at the beginning or end of a month during the term of the Lease,
the Lessee's liability for real estate taxes on the Premises shall be prorated
based on the actual number of days in that particular month. Contemporaneously
with the payment of such real estate taxes, Lessee shall pay Lessor any
applicable Florida State sales or use tax that may be due on the payment of such
real estate taxes by Lessee.
6.02 The parties hereto understand and agree that Lessee shall pay the
real estate taxes as set forth herein and shall deliver official receipts
evidencing such payment unto Lessor, at the place at which rent is required to
be made, which payment of the real estate taxes shall be made and said receipts
delivered on or before the date the real estate tax itself would become
delinquent in accordance with the law then governing the payment of such real
estate taxes. The parties hereto agree that for the Calendar Year 1997, Lessee
shall only be responsible to pay the real estate taxes due on the Premises for
the period commencing with the Rental Commencement Date and ending December 31,
1997. Accordingly, for Calendar Year 1997, Lessor hereby agrees to refund to
Lessee the real estate taxes due on the Premises for that portion of Calendar
Year 1997 prior to the Rental Commencement Date (i.e. January 1, 1997, to the
Rental Commencement Date), within thirty (30) days of Lessor's receipt of the
receipt evidencing the payment of such real estate taxes by Lessee. The portion
of the real estate taxes for Calendar Year 1997 which are Lessor's
responsibility as set forth above shall be calculated based on the highest
available discount (i.e. payment amount in November).
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PUBLIC UTILITIES - UTILITY CHARGES
7.01 Lessee shall pay all charges for gas, water, sewer, waste removal,
electricity, telephone, alarm and other utility services used in the Premises
during the term of this Lease. If any such charges are not paid when due, Lessor
may pay the same, and any amounts so paid by Lessor shall thereupon become due
to Lessor from Lessee as additional rents as provided for in Section 4.01
hereof..
USE AND RESTRICTION
8.01 Lessee shall use the Premises for an automobile dealership. Lessee
will neither use or permit any use of the Premises to be in conflict with any
federal, state or local laws, or with any order or regulation of any
governmental unit with jurisdiction over the Premises. In connection with
Lessee's use of the Premises, it, its invitees, licensees, guests and employees
shall, at all times, comply with all laws, ordinances and codes of any nature
whatsoever which govern its use of the Premises.
WASTE, DAMAGE AND REPAIR
9.01 The Lessee shall not cause or permit any waste, damage or injury
to the Premises. Subject to the provisions stated below, Lessee shall keep and
maintain the Premises, the Improvements and every part thereof, including, but
not limited to, all plumbing, electrical and lighting facilities, sprinklers,
HVAC system and air conditioning units in good order and in a neat and clean
condition, and shall repair and replace the same, if necessary, at its sole
expense. All repairs, replacements and renewals by the Lessee shall be of an
equal or better quality of materials and workmanship to that originally existing
in the Improvements. If Lessee fails to perform its obligations under this
paragraph, Lessor may at its option enter upon the Premises and put the same in
good order, condition and repair and the cost thereof shall become due and
payable as additional rent by Lessee to Lessor upon demand as provided for in
Section 4.01 hereof..
ALTERATIONS
10.01 Lessee shall not make any alterations, additions, or improvements
to the Premises or any part thereof, without the prior written consent of
Lessor, which consent shall not be unreasonably withheld or delayed. All
alterations, additions or improvements to the Premises made by Lessee during the
term of this Lease shall be in keeping with the quality and type of the
Improvements presently located on the Premises. Any alterations, additions or
improvements shall be done in good and workmanlike manner, and in compliance
with all applicable building and zoning laws and with all laws, ordinances,
orders and requirements of all sovereign authorities and the appropriate
departments, commissions, boards and officers thereof. The costs of any such
alterations, additions or improvements to the Premises shall be paid in cash or
its equivalent so that the Lessor's fee simple title to the Premises shall at
all times be free of liens for labor and materials supplied or claimed to have
been supplied.
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CONSTRUCTION LIENS
11.01 The Lessor's interest in the Premises shall not be subject to
construction liens arising from Lessee's work or alterations and any repairs
made by Lessee to the Premises. Lessee will not knowingly permit or suffer any
lien attributable to Lessee or its agents or employees to attach to the Premises
and nothing contained herein shall be deemed to imply any agreement of Lessor to
subject Lessor's interest or estate to any construction lien or any other lien.
If any construction lien is filed against the Premises as a result of
alterations, installations, improvements or repairs made or claimed to have been
made by Lessee or anyone holding any part of the Premises through or under
Lessee, Lessee shall discharge the same within forty-five (45) days from the
filing thereof. If Lessee fails to so discharge by payment, bond or court order
any such construction lien, Lessor, at its option, in addition to all other
rights or remedies herein provided, may pay or bond said lien or claim for the
account of Lessee without inquiring into the validity thereof, and all sums so
advanced by Lessor shall be paid by Lessee to Lessor as additional rent on
demand. Pursuant to FLORIDA STATUTES, Section 713.10, notice is hereby given
that Lessor shall not be liable for any labor or materials furnished or to be
furnished to Lessee, and that no construction or other lien for any such labor
or materials shall attach to or affect the reversionary or other estate or
interest of Lessor in and to the Premises. Lessee agrees, if requested by
Lessor, to join with Lessor in execution of a short form lease or memorandum of
lease to be recorded in the Public Records of Orange County, Florida, for the
purposes of giving notice of this provision of this Lease.
INSURANCE
12.01 Lessee shall at all times during the term of this Lease maintain
an "All Risk," fire and extended coverage insurance policy on the Premises and
Improvements located thereon in an amount not less than one hundred percent
(100%) of the full replacement value thereof, which amount shall be sufficient
to prevent Lessee from being or becoming a co-insurer on any part of the risk.
The term "replacement value" shall mean the actual cost of restoration of the
Premises and the Improvements located thereon to as nearly the condition
existing immediately prior to the damage or destruction. The "All Risk," fire
and extended coverage insurance policy shall name the Lessor as an additional
insured and shall provide that the policy may not be canceled or modified by the
carrier without ten (10) days prior written notice to the Lessor. The "All-Risk"
coverage shall include endorsements for coverage for wind and hurricane damage
as required by the local municipality.
12.02 Throughout the term of this Lease, Lessee, at its sole cost and
expense, shall obtain and maintain in full force and effect a comprehensive
general public liability insurance policy with respect to the Premises, which
insurance, shall be written with a carrier reasonably acceptable to the Lessor
and with coverage limits of not less than One Million ($1,000,000.00) Dollars in
respect of bodily injury or death to any one person and One Million
($1,000,000.00) Dollars in respect to any one accident or occurrence. The
insurance policy shall name the Lessor as an additional insured and shall
provide that the policy may not be canceled or modified by the carrier without
ten (10) days prior written notice to the Lessor.
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12.03 If Lessee shall fail to procure and maintain the insurance
required hereunder, the Lessor may, at its option, pay the same, and the amount
or amounts of money so paid shall be repaid by the Lessee to the Lessor, as
additional rent by Lessee to Lessor upon demand as provided for in Section 4.01
hereof; but the election of Lessor to pay such premiums on behalf of the Lessee
shall not waive the default thus committed by Lessee.
12.04 Lessee will not do or permit anything to be done on the Premises
or in the Improvements, or bring or keep anything therein which shall in any way
increase the rate of fire or other insurance in said Premises, the Improvements,
or on the property kept therein, or conflict with the fire laws or regulations,
or with any insurance policy upon said Premises, the Improvements or any part
thereof, or with any statutes, rules or regulations enacted or established by
the appropriate governmental authority.
12.05 Lessor and Lessee each hereby waives any and all right of
recovery against the other party or against the officers, employees, agents,
representatives, customers and business visitors of such other party, for any
loss or damage to such waiving party, its property or property of others under
its control, arising from any cause covered by any insurance required to be
carried by the parties hereto pursuant to the terms of this Lease or any other
policy of insurance carried by such waiving party in lieu thereof, with respect
to the Premises and/or the Improvements.
CASUALTY DAMAGE
13.01 In the event the Premises shall be destroyed or damaged by fire
or other casualty during the term of this Lease, regardless of the extent of the
destruction or damage, this Lease shall not be terminated, except as set forth
below, and Lessee shall rebuild and repair the Premises to substantially conform
to the Premises as were in existence prior to the damage or destruction and
shall have access to all insurance proceeds for such rebuilding. Lessee shall
commence the repair of such damage or destruction within forty-five (45) days
from the date of such damage and shall diligently pursue the repairs to
completion.
13.02 If the Premises shall be partially damaged or destroyed by fire
or other casualty, then during the period that Lessee is deprived of the use of
the damaged portion of the Premises, Lessee shall be required to pay rent
covering only that part of the Premises that it is able to occupy.
13.03 If the Premises are totally damaged or rendered wholly
untenantable for the carrying on of Lessee's business, as a result of a fire or
other casualty, the rent and any other sums which Lessee is obligated to pay
hereunder shall abate as of the date of the occurrence of such fire or other
casualty, until the Premises have been rebuilt. Rent and other charges due by
Lessee hereunder shall again commence in full if and when the Premises shall
have been fully and completely rebuilt.
13.04 In the event of fire or other casualty, all insurance proceeds
payable on account of such casualty shall be allocated in the following manner.
Lessee shall use such proceeds, first, to restore the existing building on the
Premises, or any building erected by Lessee in lieu thereof, to at least as good
a condition as the condition of the presently existing building on the date of
commencement of the term of this Lease and to restore and/or replace any and all
improvements,
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fixtures, furniture and equipment located on the Premises. The balance of the
proceeds, if any, shall be remitted to Lessor. Insurance proceeds shall be
subject to reasonable control by Lessor to insure the funds are allocated in the
manner hereinabove provided. This Lease, as renewed, if that be the case, shall
not terminate prior to its natural expiration date on account of any such fire
or other casualty.
CONDEMNATION
14.01 The parties hereto agree that if the Premises, or any such
portion thereof as will make the Premises unusable for the purpose herein
leased, are taken or condemned by competent authority for public or quasi-public
use, then this Lease shall terminate from the date of taking, and except as may
otherwise be provided herein, the obligations of the parties hereto shall cease
and terminate. If the Lease continues after a partial taking, the rent shall
abate proportionately as to the part taken. All compensation awarded for such
taking of the Premises and the Improvements located thereon shall belong to and
be the property of Lessor. Nothing in this paragraph shall be construed to
preclude Lessee from prosecuting any claim directly against a condemning
authority for any damages recoverable by Lessee in Lessee's own right.
EVENT OF DEFAULT AND REMEDIES
15.01 Each of the following events shall constitute an event of default
or breach ("Event of Default") of this Lease by Lessee:
(a) If Lessee shall file a petition in bankruptcy or insolvency or
for reorganization under any bankruptcy act, or shall voluntarily take advantage
of any such act by answer or otherwise, or shall make an assignment for the
benefit of creditors; or
(b) If involuntary proceedings under any bankruptcy law or
insolvency act shall be instituted against Lessee, or if a receiver or trustee
shall be appointed for all or substantially all of the property of Lessee, and
such proceedings shall not be dismissed or the receivership or trusteeship
vacated within thirty (30) days after the institution or appointment; or
(c) If Lessee shall fail to pay Lessor any rent, additional rent or
other sums due hereunder when said amount shall become due and shall not make
the payment within fifteen (15) days after receipt of written notice from Lessor
indicating that said rent and/or additional rent is due; or
(d) If Lessee shall fail to perform or comply with any of the
conditions of this Lease other than the nonpayment of rent or any other monetary
obligation and if the nonperformance shall continue for a period of thirty (30)
days after written notice thereof by Lessor to Lessee, or, if the performance
cannot be reasonably had within the thirty (30) day period, Lessee shall not in
good faith have commenced performance within the thirty (30) day period and
shall not diligently proceed to completion of performance; or
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(e) If Lessee shall vacate or abandon the Premises. Lessee shall be
deemed to have abandoned the Premises if rent and/or any other monetary
obligation due under this Lease is not currently paid and Lessee is absent from
the Premises for a period of thirty (30) days; or
(f) If this Lease or the estate of Lessee hereunder shall be
transferred to or shall pass to or devolve on any other person or party, except
in the manner herein permitted.
(g) If Smart Choice Automotive Group, Inc. shall be in default
under the terms of that certain Consulting Agreement of even date herewith by
and between Smart Choice Automotive Group, Inc. and Don Cook.
15.02 If an Event of Default shall occur, Lessor may, at its option, in
addition to such other remedies as may be available under Florida law:
(a) Terminate this Lease and re-enter and take possession of the
Premises;
(b) Recover possession of the Premises (with or without terminating
this Lease, at Lessor's option) and remove all persons and property from the
Premises, and such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Lessee, in the manner permitted
by law;
(c) Bring suit for the breach which has occurred without affecting
the obligations of the parties to perform the balance of the Lease; and
(d) Relet the Premises as Lessor may see fit without thereby
avoiding or terminating this Lease, and for the purpose of such reletting,
Lessor is authorized to make such repairs to the Premises as may be necessary in
the sole discretion of Lessor, and if a sufficient sum is not realized from such
reletting (after payment of all costs and expenses of such repairs and the
expense of such reletting and the collection of rent accruing therefrom) each
month to equal the minimum rent due hereunder then Lessee shall pay such
deficiency each month upon demand therefor. Lessor shall be entitled to retain
all amounts received in excess of the rent reserved hereunder.
(e) If Lessor so desires by acceleration, all current and future
rent and other monetary obligations due hereunder shall become immediately due
and payable, subject to Lessor's obligations under Section 15.03. If Lessor
exercises its right to accelerate, Lessor waives its right to the benefit of any
increases in rent due to any future increases in CPI as of the date of
acceleration.
15.03 Lessor shall have the obligation to mitigate damages; provided,
however, that the Lessor shall be entitled to consider such matters as the
solvency, assets and the credit-worthiness of the proposed new tenant, the
nature of the business of the proposed new tenant and its impact upon the
Premises, the provisions for rental increases over the term and the length of
the term of any proposed lease, the amount of broker's commissions, required
build-out, rent holidays and any additional matters pertinent to the Lessor's
decision to relet the Premises, in determining who, whether, and upon what terms
Lessor will relet the Premises, and the reasonable business judgment of Lessor
in that regard shall not be disturbed.
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15.04 No right or remedy hereunder shall be exclusive of any other
right or remedy, but shall be cumulative and in addition to any other right or
remedy hereunder or now or hereafter existing. Failure to insist upon the strict
performance of any provision hereof or to exercise any option, right, power or
remedy contained herein shall not constitute a waiver or relinquishment thereof
for the future.
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16.01 [THIS SECTION INTENTIONALLY DELETED]
TITLE TO LEASEHOLD IMPROVEMENTS
17.01 Until the last day of the term of this Lease, title to any
building(s) or other Improvements constructed on the Premises by Lessee, and the
equipment and other items installed in the existing building and/or in any other
building(s) or Improvements erected by Lessee, or contained therein, and any
changes, alterations, replacements, and/or additions to any of the foregoing,
shall remain solely in Lessee; and Lessee alone shall be entitled to deduct all
depreciation on Lessee's income tax returns on account of any of the foregoing.
On termination of this Lease, Lessee shall have the right to remove all
furniture, furnishings, fixtures, equipment, machinery, and other personalty
whatsoever brought upon and/or installed in the Premises and/or the building(s)
and Improvements thereon by Lessee, provided that any damage caused by the
removal of any permanently installed items shall be repaired by Lessee.
WARRANTIES OF LESSOR
18.01 Lessor warrants and represents to Lessee that:
(a) Neither the execution and delivery of this Lease nor its
performance by Lessor as contemplated hereby will conflict with or result in a
breach of, or constitute a default under, any contract, law, rule, regulation,
mortgage, deed of trust, lease, loan, letter of credit, or any other agreement,
instrument or court order to which Lessor is a party, or by which Lessor may be
bound or effected;
(b) Lessor has good and marketable title to the Premises and no
party, entity or individual, other than Lessor is in possession of any portion
of the Premises;
(c) Lessor has no knowledge of any latent defects or adverse facts
that exist with respect to the physical condition of the Premises which have not
been specifically disclosed in writing to Lessee, including, without limitation,
adverse soil conditions;
(d) All utilities, including, but not limited to, water,
electricity, telephone, cable and sanitary sewer services and facilities have
been extended to the Premises and are available in capacities adequate for the
use as a general commercial facility;
(e) There are no pending or, to the best of Lessor's knowledge,
threatened condemnation or similar proceedings effecting the Premises and Lessor
has not received any notice that such proceedings are contemplated; and
(f) Lessor has no knowledge of any violations of any federal,
state, county or municipal law, ordinance, order, regulation or requirement
effecting all or any portion of the Premises and Lessor has received no notice
of any such violation issued by any governmental authority.
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(g) The roofs (including facia and soffits) of all buildings
located on the Premises are in good condition and repair, the Improvements are
structurally sound, Lessor has no knowledge of any asbestos in the Buildings or
Improvements, there is no visible evidence of any water leaks, water damage or
structural damage, and that all mechanical items, heating, cooling, electrical,
plumbing systems and machinery are in good working condition as of the date of
this Lease. Lessee may test for radon and asbestos. If any test made by Lessee
reveals the existence of asbestos, Lessor shall be obligated to remove or abate
the asbestos at Lessor's sole cost and expense.
(h) Lessor is a Florida corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Lessor has
full power to own the Premises and to conduct its present business from the
Premises.
(i) Lessor is not subject to any charter, by-law, rule, agreement
or restriction of any kind or character which would prevent the consummation of
this Lease and the transactions contemplated hereby. The Board of Directors and
shareholders of Lessor have approved this Lease and the transactions
contemplated hereby. Lessor (and each individual executing this Lease) has full
power and authority to execute this Lease, fully perform hereunder and to
consummate the transactions contemplated hereby without the consent or joinder
of any other party.
(j) To the best of Lessor's knowledge, no portion of the Premises
is affected by any special assessments.
(k) Lessor has received no notice from any governmental authority
that its operation of the Premises, or any part thereof, is in violation of any
applicable laws, ordinances, regulations, statutes, governmental rules or
Environmental Laws.
(l) No party, entity or individual, other than Lessor, is in
possession of any portion of the Premises.
(m) To the best of Lessor's knowledge (i) neither the Premises, nor
the use or operation thereof by Lessor as an automobile dealership, violates any
land use, Environmental Laws, hazardous or regulated material and/or waste
handling, storage, treatment, disposal or discharge laws or other laws, building
codes, zoning or other ordinances, rules or regulations, fire insurance
regulations, or covenants, conditions and restrictions whether federal, state,
local or private; and (ii) there exists no material violation of any covenants
or agreements of any kind with tenants, or with any governmental jurisdiction or
private party purporting or acting to restrict in any way the individual use
and/or severability of the Premises; and (iii) neither the Premises nor the
present operation and use, constitute an illegal use under any zoning or land
use law or regulation, and none of the foregoing is the subject of any variance
pursuant to any zoning or land use law or regulation; and (iv) there has not
occurred upon the Premises, any spillage, leakage, discharge or release into the
air, soil or groundwater of any Hazardous Materials.
(n) Lessor has received no notice and has no knowledge of any
pending or contemplated proceedings (i) to modify or amend any building code or
zoning or land use law or regulation which affects the Premises; (ii) to impose
any special assessment against or upon the Premises or any portion thereof; or
(iii) to modify, amend, suspend, revoke or terminate any
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environmental, occupancy, use, operating or other permit issued or pending in
connection with the Premises (except for the revocation of the license of Don
Cook Motors to operate an automobile dealership), or the occupancy, use of
operation thereon of any tenant thereon.
(o) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorships or voluntary or
involuntary proceedings in bankruptcy pursuant to any other debtor, relief loss
contemplated or filed by Lessor.
(p) There are no contracts or other obligations outstanding for the
sale, exchange or transfer of the Premises or any portion thereof.
(q) There is no litigation or proceeding pending or threatened
against or relating to Lessor or to any portion of the Premises.
(r) All utilities, including but not limited to, water,
electricity, telephone, cable, and sanitary sewer services and facilities have
been extended to the Premises and are available to the Premises at a reasonable
cost to the Premises and capacity is adequate for the structures existing at the
time the structures were permitted and/or remodeled and adequate for current
usage.
(s) The use of the Premises as an automobile dealership is
permitted under the current zoning classification for the Premises. All permits
associated with use of the Premises as an automobile dealership have been
obtained and are in good standing. The Premises contains the necessary number of
parking spaces to be in compliance with applicable zoning regulations and land
development code of the applicable municipality. To the best of Lessor's
knowledge, all Improvements on the Premises where permitted, conforming
structures under applicable land use, zoning and building laws and ordinances in
effect when the Improvements were constructed. Lessee shall be responsible for
obtaining any special exception permits required by the local municipality.
(t) The Premises and Lessor are not in violation of any permit or
agreement obtained from any governmental body or agency in regards to the
development of the Premises.
ASSIGNMENT AND SUBLETTING
19.01 The Lessee covenants and agrees not to encumber or mortgage
Lessee's leasehold interest hereunder nor assign this Lease or sublet all or any
part of the Premises without the prior written consent of Lessor, such consent
not to be unreasonably withheld. No assignment or subletting, even with the
consent of Lessor, shall relieve Lessee of its obligations to pay rent any other
sums due by Lessee under this Lease and the performance of all obligations
required by Lessee under this Lease, unless Lessor shall specifically so agree.
ACCESS TO PREMISES
20.01 Lessor and Lessor's representatives shall have the right to enter
upon the Premises at all reasonable times after providing Lessee with prior
written notice for the purpose of
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inspecting same or for making repairs, additions or alterations pursuant to the
terms herein. Except in cases of emergency, Lessor and its agents shall be
accompanied by Lessee or its agents when in the Premises, and Lessor shall
conduct its examination and make its repairs in a manner reasonably calculated
to cause minimal interference with the business of Lessee.
SUBORDINATION
21.01 Upon request of the Lessor, Lessee will subordinate its rights
hereunder to the lien of any mortgage, deed of trust (including blanket
mortgages or deeds of trusts covering the Premises or other properties of the
Lessor) or any other security interest which has been or which hereafter may be
placed upon the Premises or any portion thereof, and to any renewals,
modifications, consolidations, replacements and extensions thereof; provided,
Lessee receives a non-disturbance agreement from the mortgage or lien holder
which shall recognize the validity and continuance of this Lease. Within sixty
(60) days of the date hereof, Lessor shall provide to Lessee, non-disturbance
agreements from all existing mortgagees which shall recognize the validity and
continuance of this Lease and provide that so long as Lessee is not in default
in the payment of rent or performance of any obligation under the Lease,
Lessee's possession of the Premises and its rights and privileges under the
Lease or any renewal thereof shall not be diminished or interfered with by the
mortgagee, and estoppel certificates from each mortgagee certifying that not
default exists under any loans, promissory notes or mortgages securing the
Premises. If any Lender does not agree to provide the aforesaid certificate,
Lessee shall have no obligation to subordinate or attorn to said Lender.
SIGNS
22.01 Lessee shall be entitled to place any and all signs necessary to
adequately display the name of Lessee and the business which Lessee is
conducting from the Premises. All of Lessee's signage shall be in compliance
with all applicable laws, codes and ordinances.
NO WAIVER
23.01 No delay or omission of the exercise of any right by either party
hereto shall impair any such right or shall be construed as a waiver of any
default or as an acquiescence thereto. One or more waivers of any violation or
breach or failure to comply with any of the covenants, terms, provisions or
conditions of this Lease by either party shall not be construed by the other
party as a waiver of any subsequent violation, breach or failure to comply with
the same or any other covenant, term, provision, or condition contained in this
Lease. No requirements whatsoever of this Lease shall be deemed waived or varied
because of either party's failure or delay in exercising its rights resulting
from any default, and Lessor's acceptance of any payment from Lessee with
knowledge of any default shall not constitute a waiver of Lessor's right with
respect to such default, nor of any subsequent default. All remedies provided
for herein shall be construed as cumulative and shall be in addition to every
other remedy otherwise available to Lessor.
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SUCCESSOR IN INTEREST
24.01 All provisions herein contained shall bind and inure to the
benefit of the respective parties hereto, their heirs, personal representatives,
successors and assigns.
NOTICES
25.01 Any notice which either party may or is required to give, shall
be given in writing and shall be deemed to have been duly given upon the date
thereof if delivered personally, or by facsimile provided that a duplicate copy
is promptly mailed by U.S. Mail, certified, return receipt requested, or upon
the date following the date thereof if delivered by overnight courier which
provides a receipt, such as Federal Express, in either case with adequate
postage prepaid, addressed to the appropriate party and marked to a particular
individual's attention as hereinafter provided. Each notice shall be effective
upon being so deposited, but the time period in which a response to any notice
must be given or any action taken with respect thereto shall commence to run
from the date of receipt of the notice by the addressee thereof as evidenced by
the return receipt. Rejection or other refusal by the addressee to accept or the
inability of the United States Postal Service or air courier service to deliver
because of a changed address of which no notice was given shall be deemed to be
the receipt of the notice sent as of the next business day following deposit. If
either party to this Lease shall change their address, that party shall notify
the other party of such change by notice delivered in accordance with this
paragraph. The initial addresses of the parties shall be as set forth below, or
at such other place as may be designated by the parties from time to time:
TO THE LESSOR AT: Strata Realty, Inc.
910 Patrick Circle S.
West Palm Beach, Florida 33406
WITH COPY TO: Robert Saylor
1615 Forum Place, #300
West Palm Beach, Florida 33415
TO THE LESSEE AT: Smart Choice Automotive Group, Inc.
5200 South Washington Avenue
Titusville, Florida 32780
WITH COPY TO: Randolph Fields, Esquire
Greenberg Traurig
111 North Orange Avenue, Suite 2050
Orlando, FL 32801
Any notice or demand made as set forth above shall be deemed given three (3)
days after the date of mailing thereof or on the date of actual receipt, if
sooner; any other notice or demand not so mailed but delivered by courier
service or by hand delivery shall be deemed given on the date of actual receipt.
Such addresses may be changed from time to time by either party by serving
notices as above provided,
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but each party shall at all times have a physical street address within the
continental United States of America as one of the addresses to which notices
may be delivered.]
ENTIRE AGREEMENT
26.01 This Lease contains the entire and only agreement between the
parties concerning the Premises and no prior oral or written statement or
representations, if any, of any party hereto or any representative of a part
hereto, not contained in this instrument, shall have any force or effect. This
Lease shall not be modified or terminated in any way except by a written
document executed by Lessor and Lessee. This Lease shall not be binding until it
has been executed by Lessee and Lessor.
AUTHORITY TO EXECUTE
27.01 Lessor and Lessee do hereby respectively represent to each other
that each has the capacity and authority to enter into this Lease. If either
Lessee or Lessor is a corporation (or partnership), each individual executing
this Lease on behalf of said corporation (or partnership) represents and
warrants that he/she is duly authorized to execute and deliver this Lease on
behalf of said corporation (or partnership) in accordance with the duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the bylaws of said corporation (or under the pertinent partnership agreements),
that any required consents or approvals of third parties have been obtained, and
that this Lease is binding upon said corporation (or partnership) in accordance
with its terms.
LEASE NOT RECORDABLE
28.01 At the request of either party, Lessor and Lessee shall promptly
execute, acknowledge and deliver a memorandum or short form of Lease sufficient
for recording. Said memorandum or short form of Lease shall make specific
reference to Lessee's Right of First Refusal provided in Section 43 of this
Lease. If a memorandum or short form of lease is recorded, on the termination of
this Lease, Lessee shall execute, acknowledge and deliver to Lessor an
instrument in writing releasing and quit-claiming to Lessor all right, title and
interest of Lessee in and to the Premises by reason of this Lease or otherwise.
RADON GAS
29.01 Radon gas is a naturally occurring radioactive gas that when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
TIME OF ESSENCE
30.01 It is understood and agreed between the parties hereto that time
is of the essence of all the terms, provisions, covenants and conditions of this
Lease.
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ATTORNEYS' FEES
31.01 In the case of the failure of either party to perform and comply
with any of the covenants and conditions hereof within the time herein
specified, whether suit be brought or not, the party so failing to perform and
comply hereby agrees to pay to the other party hereto all costs, charges, and
expenses of such collection or other enforcement of rights in any suit or
otherwise, including its reasonable attorneys' fees. The prevailing party in any
litigation arising out of this Lease, including any appellate proceedings and
bankruptcy proceedings, shall be entitled to the award of its reasonable
attorney's fees and costs.
SEVERABILITY
32.01 If any provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provisions to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby and each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
APPLICABLE LAW
33.01 This Lease shall be construed under the laws of the State of
Florida and the venue of any action to enforce rights hereunder shall be in the
county in Florida in which the Premises are located.
LESSOR'S RIGHT TO SATISFY LESSEE'S OBLIGATIONS
34.01 If Lessee fails to observe or perform any term or condition of
this Lease within the grace period, if any, applicable thereto, then Lessor may
after written notice to Lessee perform the same for the account of Lessee. If
Lessor makes any expenditure or incurs any obligation for the payment of money
in connection with such performance for Lessee's account (including reasonable
attorneys' fees and costs in instituting, prosecuting and/or defending any
action or proceeding through appeal), the sums paid or obligations incurred
shall be paid by Lessee to Lessor upon demand. In the event Lessee in the
performance or nonperformance of any term or condition of this Lease should
cause an emergency situation to occur or arise within the Premises, Lessor will
have all rights set forth in this paragraph immediately without the necessity of
providing Lessee any advance notice.
OFFSET STATEMENT
35.01 Upon the request of either party at anytime and from time to
time, Lessor and Lessee agree to execute and deliver to the other within ten
(10) days after receipt of such request, a written instrument, duly executed,
addressed to either Lessor or Lessee, as may be applicable, and/or to any person
designated by either Lessor or Lessee, at their sole cost and expense, (a)
ratifying this Lease; (b) stating the commencement and termination dates of this
Lease and (c) certifying (1) that this Lease is in full force and effect and has
not been assigned, modified, supplemented or amended except by such writing as
shall be stated, (2) that all conditions under this Lease to be performed by
either the Lessor or Lessee have been satisfied (stating exceptions,
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if any,), (3) no defenses or offsets against the enforcement of this Lease by
Lessor or Lessee exist (or, if any, stating those claimed), (4) advance rent, if
any, paid by Lessee, (5) the date to which rent has been paid, (6) the amount of
security deposited with Lessor, if any, (7) the options available to Lessee to
extend the term and which options have been exercised, if any, and (8) such
other information as either party may reasonably require. Persons receiving such
statements shall be entitled to rely upon them.
CAPTIONS AND HEADING
36.01 The captions and headings are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such paragraphs of this Lease or in any way affect this Lease.
HAZARDOUS SUBSTANCES
37.01 For purposes of this paragraph, the term "Hazardous Substances"
means and shall include any substances defined as or included in the definition
of "hazardous substances", "hazardous waste", "hazardous materials", "toxic
substances", "contaminants", or any other substances declared to be hazardous or
toxic under any federal, state or local laws, ordinances, rules or regulations
now or hereafter in effect.
37.02 Lessor warrants and represents to Lessee that:
(a) The Premises and the Lessor are not in violation of, or subject
to any existing, pending, or threatened investigation regarding the Premises by
any federal, state or local governmental authority, under any law, statute,
ordinance or regulation pertaining to Hazardous Substances (collectively, the
"Environmental Laws");
(b) The previous uses and ownership of the Premises have not
resulted in the release or disposal of Hazardous Substances on the Premises;
(c) There are no Hazardous Substances or materials which are being
stored or otherwise held on, under or about the Premises, by the Lessor, except
in compliance with all Environmental Laws;
(d) Any handling, transportation, storage, treatment or use of
Hazardous Substances that has occurred on the Premises to date, has been in
compliance with all Environmental Laws;
(e) No leak, spill, release, discharge, omission or disposal of
Hazardous Substances has occurred on the Premises, to date, and the soils and
groundwaters on or under the Premises are free of Hazardous Substances as of the
date of this Lease; and
(f) Lessor has not received any notice of any violation of any
Environmental Laws pertaining to the Premises.
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37.03 Lessor agrees to indemnify Lessee and hold Lessee and its
employees, partners, heirs, personal representatives, successors and assigns
harmless from and against any and all claims, losses, damages (including all
foreseeable and unforeseeable consequential damages), liabilities, fines,
penalties, charges, interest, administrative or judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith (including without
limitation attorney's fees and expenses), directly or indirectly resulting in
whole or in part from any violation of any Environmental Laws applicable to the
Premises caused by Lessor or caused during Lessor's ownership of the Premises.
Lessee shall be reimbursed by Lessor immediately upon demand for any and all
sums paid and costs incurred by Lessee with respect to the foregoing matters.
The foregoing Lessor's environmental indemnity shall survive the expiration or
termination of this Lease and/or any transfer of all or any portion of the
Premises, or of any interest in this Lease.
37.04 Lessee, its agents, employees, contractors or invitees, shall not
use the Premises in any manner that violates any applicable Environmental Laws.
Lessee shall not cause or permit the Premises to be used for the generation,
handling, storage, transportation, disposal or release of any Hazardous
Substances, except as exempted or properly permitted under applicable
Environmental Laws.
INDEPENDENT COVENANTS
38.01 The covenants to pay rent, additional rent and other amounts
hereunder are independent covenants, and Lessee shall not have the right to hold
back, off set, or fail to pay any such amounts for default by Lessor or any
other reason whatsoever.
CONSTRUCTION AND INTERPRETATION
39.01 The fact that a party may be deemed to have drafted or structured
any provision hereof shall not be considered in construing that particular
provision either in favor of or against such party.
QUIET ENJOYMENT
40.01 Upon payment by the Lessee of the rents herein provided, and upon
the observance and performance of all covenants, terms and conditions of
Lessee's part to be observed and performed, Lessee shall peacefully and quietly
hold and enjoy the Premises for the Term of this Lease without hindrance or
interruption by Lessor, subject nevertheless, to the terms and conditions of
this Lease.
RELATIONSHIP OF PARTIES
41.01 Notwithstanding anything contained herein to the contrary, it is
agreed that the Lessor shall in no event be deemed to be a partner or engaged in
a joint venture with, or an associate of, Lessee in the conduct of its business,
nor shall Lessor be liable for any debts incurred by Lessee in the conduct of
its business. Nothing in this Lease contained shall be deemed or construed to
confer upon Lessor any interest in the business of the Lessee. The relationship
of the parties during the term of this Lease shall at all times be that of
Lessor and Lessee.
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BROKERAGE COMMISSION
42.01 Lessee represents and warrants that it has dealt with no person
or entity with respect to the leasing of the Premises, and that it knows of no
other persons or entity who would be entitled to any claim for brokerage
commission or finders fees in connection with the execution of this Lease and
hereby indemnifies Lessor against and holds harmless Lessor from and against all
liabilities arising from any such claim, including, without limitation,
attorney's fees and costs of litigation.
42.02 Lessor represents and warrants that it has dealt with no person
or entity with respect to the leasing of the Premises, and that it knows of no
other persons or entity who would be entitled to any claim for brokerage
commission or finders fees in connection with the execution of this Lease and
hereby indemnifies Lessee against and holds harmless Lessee from and against all
liabilities arising from any such claim, including, without limitation,
attorney's fees and costs of litigation.
RIGHT OF FIRST REFUSAL
43.01 If at any time during the term of this Lease or during any
optional renewal term which is applicable, Lessor receives a bona fide offer to
purchase the Premises which is acceptable to Lessor (hereinafter referred to as
Offer), Lessor shall notify Lessee in writing of Offer and all of its terms and
conditions, in detail (hereinafter referred to as Notice of Offer). Lessee shall
have twenty (20) days from receipt of Notice of Offer in which to notify Lessor
in writing of its election to purchase the Premises in accordance with the terms
and conditions of Offer.
43.02 If Lessee elects to purchase the Premises in accordance with the
terms and conditions of Offer, the closing shall be as specified in Offer.
43.04 If Lessee fails to notify Lessor of its election to purchase the
Premises in accordance with the terms and conditions of Offer within twenty (20)
days from receipt of Notice of Offer, then Lessor may accept Offer from the
third party provided the terms and conditions of Offer are unchanged and the
closing takes place within the time period and on all the terms and conditions
set forth in Offer. This paragraph 43.04 shall apply to any form of exchange of
the Premises for other property. Failure by Lessee, on any given occasion, to
exercise the foregoing right of first refusal shall not be deemed to preclude
Lessee from exercising such right on any subsequent given occasion. The within
right of first refusal shall survive any transfer(s) of the Premises .
43.04 Lessee shall have no right of First Refusal, and this Article 43
shall not be applicable to, transfers from Lessor or Don Cook to any family
member of Don Cook or any entity wholly-owned by Lessor and/or Don Cook.
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LESSOR'S CONSENT
44.01 Anything in this Lease to the contrary notwithstanding, whenever
according to the terms of this Lease the consent of Lessor shall be required,
Lessor covenants that it shall not unreasonably withhold or delay the granting
of its consent to any action contemplated by Lessee.
COUNTERPARTS
45.01 This Lease may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall constitute
but one instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have set their hand and seals
this 30th day of June, 1997.
<TABLE>
<S> <C>
WITNESSES: LESSOR:
/S/ THOMAS E. CONLAN STRATA REALTY, INC.,
A FLORIDA CORPORATION
Print Name: THOMAS E. CONLAN
/S/ JAN CRANK By: /S/ DON COOK
Name: DON COOK
Print Name: JAN CRANK Title: PRESIDENT
LESSEE:
/S/ ELIZABETH A. ZYGMUNTOWICZ FIRST CHOICE AUTO FINANCING, INC., A FLORIDA CORPORATION
Print Name: ELIZABETH A. ZYGMUNTOWICZ
By: /S/ J. NEAL HUTCHINSON, JR.
/S/ JAMES T. VARNADOE Name: J.N. HUTCHINSON, JR.
Title: V.P.
Print Name: JAMES T. VARNADOE
</TABLE>
THE UNDERSIGNED, SMART CHOICE AUTOMOTIVE GROUP, INC., joins herein to evidence
its agreement to unconditionally guarantee all obligations of Lessee hereunder.
<TABLE>
<S> <C>
WITNESSES: GUARANTOR:
/S/ ELIZABETH A. ZYGMUNTOWICZ SMART CHOICE AUTOMOTIVE GROUP, INC.,
A FLORIDA CORPORATION.
Print Name: ELIZABETH A. ZYGMUNTOWICZ
/S/ JAMES T. VARNADOE By: /S/J. NEAL HUTCHINSON, JR.
Name: J.N. HUTCHINSON, JR.
Print Name: JAMES T. VARNADOE Title: ASSISTANT V.P.
</TABLE>
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EXHIBIT "A"
PREMISES
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
The South 162.18 feet. Of the east 473.03 feet of the South 1/2 of Lot 1, Block
3, lying west of a platted road right-of-way (60 ft.) as shown on Plat No. 1,
Palm Beach Plantations, a subdivision of Section 12, Township 44 South, Range 42
East, according to the Plat thereof on file in the office of the Clerk of
Circuit Court in and for Palm Beach County, in Plat book 10, Page 20, except the
East 30 feet thereof conveyed to Palm Beach County for road purpose, but
including an easement for ingress and egress via the 25 foot strip of land lying
north of and adjacent to the north line of the above described.
<PAGE>
LEASE AGREEMENT
(Ready Finance Property)
THIS LEASE AGREEMENT (the "Lease") is made this 30 day of June, 1997,
by and between BOAT-MART, INC., a Florida Corporation (the "Lessor"), whose
address is P.O. Box 19358, West Palm Beach, Florida 33416, and FIRST CHOICE AUTO
FINANCE, INC., a Florida corporation (the "Lessee"), whose address is 5200 South
Washington Avenue, Titusville, Florida 32780.
W I T N E S S E T H:
That the Lessor, for and in consideration of the covenants and
agreements hereinafter set forth and the rent hereinafter specifically reserved,
does hereby Lease unto the Lessee the "Premises" identified herein in accordance
with the following terms and conditions:
PREMISES
1.01 Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor the following property (collectively, the "Premises"):
(a) Certain real property lying and being in Palm Beach County,
Florida, located at 1575 South Military Trail, West Palm Beach, Florida (162'
frontage by 450' deep 72,000 square feet); and
(b) All buildings, structures and improvements (collectively, the
"Buildings") now or hereafter erected on such land either prior to the
commencement of or during the term of this Lease and all fixtures, alarm
systems, light fixtures, ceiling fans, air-conditioning, heating, plumbing,
electrical and other utility systems, equipment and other property located
therein both prior to the commencement of and during the term of this Lease (all
of the foregoing including the Buildings are collectively, the "Improvements").
Any replacement buildings erected by Lessee on the Premises shall not exceed the
size of the existing buildings on the Premises.
1.02 Lessor reserves, and Lessee acknowledges and recognizes, Lessor's
right, title and interest in and to an existing fifty (50) feet ingress/egress
easement over the Premises to obtain access to the property located to the rear
of the Premises.
TERM
2.01 The primary term of this Lease shall be for a period of five (5)
year(s) commencing on July 1, 1997, and terminating on July 1, 2002 at 11:59
p.m., unless sooner terminated pursuant to the provisions of this Lease (the
"Primary Term").
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2.02 Upon the expiration of the Primary Term of this Lease, and
provided Lessee is not then in default hereunder, Lessee shall have the option
to extend this Lease for three (3) consecutive additional periods of five (5)
years (the "Option Terms"). In order to exercise any of these options, Lessee
must give Lessor notice in writing of its intent to exercise the option to
extend at least sixty (60) days prior to the expiration of the Primary Term, or
the first or second Option Term, as the case may be. The rights of Lessor and
Lessee during the Option Terms, if any, shall be governed by the terms and
conditions of the Lease.
2.03 For purposes of this Lease the Primary Term and the Option Terms
are sometimes hereinafter collectively referred to as the "Term".
RENT
3.01 The annual rent for the use and occupancy of the Premises during
the Primary Term and the Option Terms shall be Sixty Thousand and No/Dollars
($60,000.00), which shall be paid by Lessee to Lessor in equal monthly
installments of Five Thousand and No/Dollars ($5,000.00). The total rent for the
Primary Term and each Option Term is Three Hundred Thousand and No/100 Dollars
($300,000.00) per term, except as may be modified by Section 3.02 hereof.
Notwithstanding anything contained herein to the contrary, no payment of rent
shall be due and payable to Lessor until the Rental Commencement Date (as
hereinafter defined).
3.02 (a) In view of the fluctuating purchasing power of the dollar, the
parties hereto, desiring to adjust the above described fixed rent to such
purchasing power, agree that adjustments shall be made in the fixed rent from
time to time as hereinafter provided, so as to reflect as early as possible such
fluctuations. The parties hereto adopt as the standard for measuring such
fluctuations the United States Bureau of Labor Statistics Consumer Price Index
for Urban Wage Earners and Clerical Workers (Revised Series), All Items, U.S.
City Average (the "Index"). The Index for a specific date (as required by this
Lease) shall be deemed to mean the Index published on that date or, if not
published on that date, the most recent publication of the Index prior to such
date. If the publication of the Index shall be discontinued, "Index" shall be
such other source selected by Lessor, in its sole and reasonable judgment, as is
most nearly comparable to the Index as defined above. The first adjustment shall
be made at the end of the third Lease Year of the Primary Term, and shall become
effective on the first (1st) day of the fourth Lease Year of the Primary Term,
and a like adjustment shall be made at the end of each subsequent Lease Year of
the Primary Term and Option Term(s), if any.
(b) Commencing at the end of the third Lease Year of the Primary
Term of this Lease, the annual rent for the fourth Lease Year of the Primary
Term and each subsequent Lease Year of the Primary Term and Option Term(s), if
any, shall be adjusted annually as follows:
(i) The annual rent for the immediately preceding Lease Year of the
Term of this Lease shall be multiplied by a fraction, the numerator of which
shall be the Index for the month which is three (3) months prior to the first
month of the next ensuing Lease Year and the denominator of which shall be the
Index for the month which is two (2) months prior to the commencement of the
immediately preceding Lease Year.
(ii) The figure resulting from the calculations set forth above
shall be the new annual rent amount for the next ensuing Lease Year. Provided,
however, notwithstanding anything to
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the contrary contained in this paragraph 3.02, in no event shall the annual rent
due and payable hereunder be either: (A) LESS for any successive Lease Year than
One Hundred percent (100%) of the annual rent paid during the immediately
preceding Lease Year regardless of the value of the dollar as reflected by said
Index; or (B) MORE for any successive Lease Year than One Hundred and Three
percent (103%) of the annual rent paid during the immediately preceding Lease
Year regardless of the value of the dollar as reflected by said Index.
3.03 The annual rent due during any Lease Year of the Term of this
Lease, shall be paid by Lessee to Lessor in equal monthly installments, together
with any applicable sales tax due thereon. Such monthly payment shall be due and
payable in advance, beginning on the Rental Commencement Date, and continuing on
the first (1st) day of each month thereafter during the Term.
3.04 If the Rental Commencement Date (as hereinafter defined) is a day
other than the first day of a calendar month, then Lessee shall pay on the
Rental Commencement Date a prorata portion of the fixed monthly rent described
in the foregoing paragraphs, prorated on a per diem basis with respect to the
fractional calendar month at the beginning of the Lease Year.
3.05 The following words shall have the following definitions
throughout this Lease. The term "Lease Year" shall mean for the first Lease
Year, that period commencing with the Rental Commencement Date and ending on the
last day of the 12th full calendar month following the Rental Commencement Date;
and for each succeeding Lease Year, that period commencing with the first day of
the calendar month after termination of the preceding Lease Year, and ending on
the last day of the 12th month thereafter. The term "Calendar Year" shall mean
for the first Calendar Year, the period commencing with the Rental Commencement
Date and ending December 31st of the year in which the Primary Term of this
Lease commenced; and for each succeeding Calendar Year, that period commencing
on January 1st and ending December 31st of that year; and for the last Calendar
Year, that period commencing January 1st of the last year of the Term of this
Lease, and ending on the termination date of such Term. The term "Rental
Commencement Date" shall mean June 30, 1997.
3.06 The total monthly payment due hereunder, which includes the rent,
shall be paid by Lessee to Lessor without notice or demand, and without
abatement, reduction, setoff, counterclaim, defense or deduction, except as
specifically provided herein, and shall be paid to Lessor in lawful money of the
United States.
3.07 Lessee will promptly pay all rent and other charges and render all
statements herein prescribed at the office of Lessor at P.O. Box 19358, West
Palm Beach, Florida 33416, or to such other person or corporation and at such
other physical street address, as shall be designated by Lessor in writing at
least ten (10) days prior to the next ensuing rent payment date.
ADDITIONAL RENT
4.01 All taxes, including real estate taxes, insurance premiums,
charges, costs, and expenses that Lessee assumes or agrees to pay hereunder,
together with any applicable Florida State sales and/or use tax, and together
with all interest and penalties that may accrue thereon in the event of
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the failure of Lessee to pay those items, and all other damages, costs,
expenses, and sums that the Lessor may suffer or incur, or that may become due,
by reason of any default of Lessee or failure by Lessee to comply with the terms
and conditions of this Lease, shall be deemed to be "additional rent" and shall
be due and payable immediately and, in the event of non-payment, Lessor shall
have all the rights and remedies as herein provided for failure to pay rent.
LATE CHARGE
5.01 Lessee agrees to pay Lessor a late charge of five percent (5%) of
each payment of rent required to be paid by Lessee hereunder not received by
Lessor within fifteen (15) days of the due date thereof. It is agreed by the
parties hereto that said late charge shall be for reimbursement to Lessor for
collection charges incurred as a result of the overdue rent and/or additional
rent. In the event that any check, bank draft, order for payment or negotiable
instrument given to Lessor for any payment under this Lease shall be dishonored
for any reason whatsoever not attributable to Lessor, Lessor shall be entitled
to make an administrative charge to Lessee of Fifty Dollars ($50.00).
PROPERTY TAXES
6.01 Lessee shall be responsible to pay any and all real estate taxes
due with respect to the Premises during the term of this Lease based on the
highest available discount (i.e. payment amount in November). For fractions of a
calendar month at the beginning or end of a month during the term of the Lease,
the Lessee's liability for real estate taxes on the Premises shall be prorated
based on the actual number of days in that particular month. Contemporaneously
with the payment of such real estate taxes, Lessee shall pay Lessor any
applicable Florida State sales or use tax that may be due on the payment of such
real estate taxes by Lessee.
6.02 The parties hereto understand and agree that Lessee shall pay the
real estate taxes as set forth herein and shall deliver official receipts
evidencing such payment unto Lessor, at the place at which rent is required to
be made, which payment of the real estate taxes shall be made and said receipts
delivered on or before the date the real estate tax itself would become
delinquent in accordance with the law then governing the payment of such real
estate taxes. The parties hereto agree that for the Calendar Year 1997, Lessee
shall only be responsible to pay the real estate taxes due on the Premises for
the period commencing with the Rental Commencement Date and ending December 31,
1997. Accordingly, for Calendar Year 1997, Lessor hereby agrees to refund to
Lessee the real estate taxes due on the Premises for that portion of Calendar
Year 1997 prior to the Rental Commencement Date (i.e. January 1, 1997, to the
Rental Commencement Date), within thirty (30) days of Lessor's receipt of the
receipt evidencing the payment of such real estate taxes by Lessee. The portion
of the real estate taxes for Calendar Year 1997 which are Lessor's
responsibility as set forth above shall be calculated based on the highest
available discount (i.e. payment amount in November).
PUBLIC UTILITIES - UTILITY CHARGES
7.01 Lessee shall pay all charges for gas, water, sewer, waste removal,
electricity, telephone, alarm and other utility services used in the Premises
during the term of this Lease. If any such charges are not paid when due, Lessor
may pay the same, and any amounts so paid by Lessor shall thereupon become due
to Lessor from Lessee as additional rents as provided for in Section 4.01
hereof.
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<PAGE>
USE AND RESTRICTION
8.01 Lessee shall use the Premises for an automobile dealership. Lessee
will neither use or permit any use of the Premises to be in conflict with any
federal, state or local laws, or with any order or regulation of any
governmental unit with jurisdiction over the Premises. In connection with
Lessee's use of the Premises, it, its invitees, licensees, guests and employees
shall, at all times, comply with all laws, ordinances and codes of any nature
whatsoever which govern its use of the Premises, including, but not limited to,
all environmental laws.
WASTE, DAMAGE AND REPAIR
9.01 The Lessee shall not cause or permit any waste, damage or injury
to the Premises. Subject to the provisions stated below, Lessee shall keep and
maintain the Premises, the Improvements and every part thereof, including, but
not limited to, all plumbing, electrical and lighting facilities, sprinklers,
HVAC system and air conditioning units in good order and in a neat and clean
condition, and shall repair and replace the same, if necessary, at its sole
expense. All repairs, replacements and renewals by the Lessee shall be of an
equal or better quality of materials and workmanship to that originally existing
in the Improvements. If Lessee fails to perform its obligations under this
paragraph, Lessor may at its option enter upon the Premises and put the same in
good order, condition and repair and the cost thereof shall become due and
payable as additional rent by Lessee to Lessor upon demand as provided for in
Section 4.01 hereof.
CONSTRUCTION OF IMPROVEMENTS
10.01 Upon payment in full by Lessee of that certain Promissory Note in
the principal amount of $5,000,000.00, dated of even date herewith made by
Lessee and payable to Lessor, Lessor, at its own expense, shall cause the 2135
square foot office building located on the Premises to be demolished.
ALTERATIONS
11.01 Lessee shall not make any alterations, additions or improvements
to the Premises or any part thereof, without the prior written consent of
Lessor, which consent shall not be unreasonably withheld or delayed. All
alterations, additions or improvements to the Premises made by Lessee during the
term of this Lease shall be in keeping with the quality and type of the
Improvements presently located on the Premises. Any alterations, additions or
improvements shall be done in good and workmanlike manner, and in compliance
with all applicable building and zoning laws and with all laws, ordinances,
orders, and requirements of all sovereign authorities and the appropriate
departments, commissions, boards and officers thereof. The costs of any such
alterations, additions or improvements to the Premises shall be paid in cash or
its equivalent so that the Lessor's fee simple title to the Premises shall at
all times be free of liens for labor and materials supplied or claimed to have
been supplied.
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CONSTRUCTION LIENS
12.01 The Lessor's interest in the Premises shall not be subject to
construction liens arising from Lessee's work or alterations and any repairs
made by Lessee to the Premises. Lessee will not knowingly permit or suffer any
lien attributable to Lessee or its agents or employees to attach to the Premises
and nothing contained herein shall be deemed to imply any agreement of Lessor to
subject Lessor's interest or estate to any construction lien or any other lien.
If any construction lien is filed against the Premises as a result of
alterations, installations, improvements or repairs made or claimed to have been
made by Lessee or anyone holding any part of the Premises through or under
Lessee, Lessee shall discharge the same within forty-five (45) days from the
filing thereof. If Lessee fails to so discharge by payment, bond or court order
any such construction lien, Lessor, at its option, in addition to all other
rights or remedies herein provided, may pay or bond said lien or claim for the
account of Lessee without inquiring into the validity thereof, and all sums so
advanced by Lessor shall be paid by Lessee to Lessor as additional rent on
demand. Pursuant to FLORIDA STATUTES, Section 713.10, notice is hereby given
that Lessor shall not be liable for any labor or materials furnished or to be
furnished to Lessee, and that no construction or other lien for any such labor
or materials shall attach to or affect the reversionary or other estate or
interest of Lessor in and to the Premises. Lessee agrees, if requested by
Lessor, to join with Lessor in execution of a short form lease or memorandum of
lease to be recorded in the Public Records of Palm Beach County, Florida, for
the purposes of giving notice of this provision of this Lease.
INSURANCE
13.01 Lessee shall at all times during the term of this Lease maintain
an "All Risk," fire and extended coverage insurance policy on the Premises and
Improvements located thereon in an amount not less than one hundred percent
(100%) of the full replacement value thereof, which amount shall be sufficient
to prevent Lessee from being or becoming a co-insurer on any part of the risk.
The term "replacement value" shall mean the actual cost of restoration of the
Premises and the Improvements located thereon to as nearly the condition
existing immediately prior to the damage or destruction. The "All Risk," fire
and extended coverage insurance policy shall name the Lessor as an additional
insured and shall provide that the policy may not be canceled or modified by the
carrier without ten (10) days prior written notice to the Lessor. The "All-Risk"
coverage shall include endorsements for coverage for wind and hurricane damage
as required by the local municipality.
13.02 Throughout the term of this Lease, Lessee, at its sole cost and
expense, shall obtain and maintain in full force and effect a comprehensive
general public liability insurance policy with respect to the Premises, which
insurance, shall be written with a carrier reasonably acceptable to the Lessor
and with coverage limits of not less than One Million ($1,000,000.00) Dollars in
respect of bodily injury or death to any one person and One Million
($1,000,000.00) Dollars in respect to any one accident or occurrence. The
insurance policy shall name the Lessor as an additional insured and shall
provide that the policy may not be canceled or modified by the carrier without
ten (10) days prior written notice to the Lessor.
13.03 If Lessee shall fail to procure and maintain the insurance
required hereunder, the Lessor may, at its option, pay the same, and the amount
or amounts of money so paid shall be repaid by the Lessee to the Lessor, as
additional rent by Lessee to Lessor upon demand as
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provided for in Section 4.01 hereof; but the election of Lessor to pay such
premiums on behalf of the Lessee shall not waive the default thus committed by
Lessee.
13.04 Lessee will not do or permit anything to be done on the Premises
or in the Improvements, or bring or keep anything therein which shall in any way
increase the rate of fire or other insurance in said Premises, the Improvements,
or on the property kept therein, or conflict with the fire laws or regulations,
or with any insurance policy upon said Premises, the Improvements or any part
thereof, or with any statutes, rules or regulations enacted or established by
the appropriate governmental authority.
13.05 Lessor and Lessee each hereby waives any and all right of
recovery against the other party or against the officers, employees, agents,
representatives, customers and business visitors of such other party, for any
loss or damage to such waiving party, its property or property of others under
its control, arising from any cause covered by any insurance required to be
carried by the parties hereto pursuant to the terms of this Lease or any other
policy of insurance carried by such waiving party in lieu thereof, with respect
to the Premises and/or the Improvements.
CASUALTY DAMAGE
14.01 In the event the Premises shall be destroyed or damaged by fire
or other casualty during the term of this Lease, regardless of the extent of the
destruction or damage, this Lease shall not be terminated, except as set forth
below, and Lessee shall rebuild and repair the Premises to substantially conform
to the Premises as were in existence prior to the damage or destruction and
shall have access to all insurance proceeds for such rebuilding. Lessee shall
commence the repair of such damage or destruction within forty-five (45) days
from the date of such damage and shall diligently pursue the repairs to
completion.
14.02 If the Premises shall be partially damaged or destroyed by fire
or other casualty, then during the period that Lessee is deprived of the use of
the damaged portion of the Premises, Lessee shall be required to pay rent
covering only that part of the Premises that it is able to occupy.
14.03 If the Premises are totally damaged or rendered wholly
untenantable for the carrying on of Lessee's business, as a result of a fire or
other casualty, the rent and any other sums which Lessee is obligated to pay
hereunder shall abate as of the date of the occurrence of such fire or other
casualty, until the Premises have been rebuilt. Rent and other charges due by
Lessee hereunder shall again commence in full if and when the Premises shall
have been fully and completely rebuilt.
14.04 In the event of fire or other casualty, all insurance proceeds
payable on account of such casualty shall be allocated in the following manner.
Lessee shall use such proceeds, first, to restore the existing building on the
Premises, or any building erected by Lessee in lieu thereof, to at least as good
a condition as the condition of the presently existing building on the date of
commencement of the term of this Lease and to restore and/or replace any and all
improvements, fixtures, furniture and equipment located on the Premises. The
balance of the proceeds, if any,
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shall be remitted to Lessor. Insurance proceeds shall be subject to reasonable
control by Lessor to insure the funds are allocated in the manner hereinabove
provided. This Lease, as renewed, if that be the case, shall not terminate prior
to its natural expiration date on account of any such fire or other casualty.
CONDEMNATION
15.01 The parties hereto agree that if the Premises, or any such
portion thereof as will make the Premises unusable for the purpose herein
leased, are taken or condemned by competent authority for public or quasi-public
use, then this Lease shall terminate from the date of taking, and except as may
otherwise be provided herein, the obligations of the parties hereto shall cease
and terminate. If the Lease continues after a partial taking, the rent shall
abate proportionately as to the part taken. All compensation awarded for such
taking of the Premises and the Improvements located thereon shall belong to and
be the property of Lessor. Nothing in this paragraph shall be construed to
preclude Lessee from prosecuting any claim directly against a condemning
authority for any damages recoverable by Lessee in Lessee's own right.
EVENT OF DEFAULT AND REMEDIES
16.01 Each of the following events shall constitute an event of default
or breach ("Event of Default") of this Lease by Lessee:
(a) If Lessee shall file a petition in bankruptcy or insolvency or
for reorganization under any bankruptcy act, or shall voluntarily take advantage
of any such act by answer or otherwise, or shall make an assignment for the
benefit of creditors; or
(b) If involuntary proceedings under any bankruptcy law or
insolvency act shall be instituted against Lessee, or if a receiver or trustee
shall be appointed for all or substantially all of the property of Lessee, and
such proceedings shall not be dismissed or the receivership or trusteeship
vacated within thirty (30) days after the institution or appointment; or
(c) If Lessee shall fail to pay Lessor any rent, additional rent or
other sums due hereunder when said amount shall become due and shall not make
the payment within fifteen (15) days after receipt of written notice from Lessor
indicating that said rent and/or additional rent is due; or
(d) If Lessee shall fail to perform or comply with any of the
conditions of this Lease other than the nonpayment of rent or any other monetary
obligation and if the nonperformance shall continue for a period of thirty (30)
days after written notice thereof by Lessor to Lessee, or, if the performance
cannot be reasonably had within the thirty (30) day period, Lessee shall not in
good faith have commenced performance within the thirty (30) day period and
shall not diligently proceed to completion of performance; or
(e) If Lessee shall vacate or abandon the Premises. Lessee shall be
deemed to have abandoned the Premises if rent and/or any other monetary
obligation due under this Lease is not currently paid and Lessee is absent from
the Premises for a period of thirty (30) days; or
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(f) If this Lease or the estate of Lessee hereunder shall be
transferred to or shall pass to or devolve on any other person or party, except
in the manner herein permitted.
16.02 If an Event of Default shall occur, Lessor may, at its option, in
addition to such other remedies as may be available under Florida law:
(a) Terminate this Lease and re-enter and take possession of the
Premises;
(b) Recover possession of the Premises (with or without terminating
this Lease, at Lessor's option) and remove all persons and property from the
Premises, and such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Lessee, in the manner permitted
by law;
(c) Bring suit for the breach which has occurred without affecting
the obligations of the parties to perform the balance of the Lease; and
(d) Relet the Premises as Lessor may see fit without thereby
avoiding or terminating this Lease, and for the purpose of such reletting,
Lessor is authorized to make such repairs to the Premises as may be necessary in
the sole discretion of Lessor, and if a sufficient sum is not realized from such
reletting (after payment of all costs and expenses of such repairs and the
expense of such reletting and the collection of rent accruing therefrom) each
month to equal the minimum rent due hereunder then Lessee shall pay such
deficiency each month upon demand therefor. Lessor shall be entitled to retain
all amounts received in excess of the rent reserved hereunder.
(e) If Lessor so desires by acceleration, all current and future
rent and other monetary obligations due hereunder shall become immediately due
and payable, subject to Lessor's obligations under Section 16.03. If Lessor
exercises its right to accelerate, Lessor waives its right to the benefit of any
increases in rent due to any future increases in CPI as of the date of
acceleration.
16.03 Lessor shall have the obligation to mitigate damages; provided,
however, that the Lessor shall be entitled to consider such matters as the
solvency, assets and the credit-worthiness of the proposed new tenant, the
nature of the business of the proposed new tenant and its impact upon the
Premises, the provisions for rental increases over the term and the length of
the term of any proposed lease, the amount of broker's commissions, required
build-out, rent holidays and any additional matters pertinent to the Lessor's
decision to relet the Premises, in determining who, whether, and upon what terms
Lessor will relet the Premises, and the reasonable business judgment of Lessor
in that regard shall not be disturbed.
16.04 No right or remedy hereunder shall be exclusive of any other
right or remedy, but shall be cumulative and in addition to any other right or
remedy hereunder or now or hereafter existing. Failure to insist upon the strict
performance of any provision hereof or to exercise any option, right, power or
remedy contained herein shall not constitute a waiver or relinquishment thereof
for the future.
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17.01 [THIS SECTION INTENTIONALLY DELETED]
TITLE TO LEASEHOLD IMPROVEMENTS
18.01 Until the last day of the term of this Lease, title to any
building(s) or other Improvements constructed on the Premises by Lessee, and the
equipment and other items installed in the existing building and/or in any other
building(s) or Improvements erected by Lessee, or contained therein, and any
changes, alterations, replacements, and/or additions to any of the foregoing,
shall remain solely in Lessee; and Lessee alone shall be entitled to deduct all
depreciation on Lessee's income tax returns on account of any of the foregoing.
On termination of this Lease, Lessee shall have the right to remove all
furniture, furnishings, fixtures, equipment, machinery, and other personally
whatsoever brought upon and/or installed in the Premises and/or the building(s)
and Improvements thereon by Lessee, provided that any damage caused by the
removal of any permanently installed items shall be repaired by Lessee.
WARRANTIES OF LESSOR
19.01 Lessor warrants and represents to Lessee that:
(a) Neither the execution and delivery of this Lease nor its
performance by Lessor as contemplated hereby will conflict with or result in a
breach of, or constitute a default under, any contract, law, rule, regulation,
mortgage, deed of trust, lease, loan, letter of credit, or any other agreement,
instrument or court order to which Lessor is a party, or by which Lessor may be
bound or effected;
(b) Lessor has good and marketable title to the Premises and no
party, entity or individual, other than Lessor is in possession of any portion
of the Premises;
(c) Lessor has no knowledge of any latent defects or adverse facts
that exist with respect to the physical condition of the Premises which have not
been specifically disclosed in writing to Lessee, including, without limitation,
adverse soil conditions;
(d) All utilities, including, but not limited to, water,
electricity, telephone, cable, and sanitary sewer services and facilities have
been extended to the Premises and are available in capacities adequate for the
use as a general commercial facility;
(e) There are no pending or, to the best of Lessor's knowledge,
threatened condemnation or similar proceedings effecting the Premises and Lessor
has not received any notice that such proceedings are contemplated; and
(f) Lessor has no knowledge of any violations of any federal,
state, county or municipal law, ordinance, order, regulation or requirement
effecting all or any portion of the Premises and Lessor has received no notice
of any such violation issued by any governmental authority.
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(g) The roofs (including facia and soffits) of all buildings
located on the Premises are in good condition and repair, the Improvements are
structurally sound, Lessor has no knowledge of any asbestos in the Buildings or
Improvements, there is no visible evidence of any water leaks, water damage or
structural damage, and that all mechanical items, heating, cooling, electrical,
plumbing systems and machinery are in good working condition as of the date of
this Lease. Lessee may test for the existence of Radon and asbestos. If any test
made by Lessee reveals the existence of asbestos, Lessor shall be obligated to
remove or abate the asbestos at Lessor's sole cost and expense.
(h) Lessor is a Florida corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Lessor has
full power to own the Premises and to conduct its present business from the
Premises.
(i) Lessor is not subject to any charter, by-law, rule, agreement
or restriction of any kind or character which would prevent the consummation of
this Lease and the transactions contemplated hereby. The Board of Directors and
shareholders of Lessor have approved this Lease and the transactions
contemplated hereby. Lessor (and each individual executing this Lease) has full
power and authority to execute this Lease, fully perform hereunder and to
consummate the transactions contemplated hereby without the consent or joinder
of any other party.
(j) To the best of Lessor's knowledge, no portion of the Premises
is affected by any special assessments.
(k) Lessor has received no notice from any governmental authority
that its operation of the Premises, or any part thereof, is in violation of any
applicable laws, ordinances, regulations, statutes, governmental rules or
Environmental Laws.
(l) No party, entity or individual, other than Lessor, is in
possession of any portion of the Premises.
(m) To the best of Lessor's knowledge (i) neither the Premises, nor
the use or operation thereof by Lessor as an automobile dealership, violates any
land use, Environmental Laws, hazardous or regulated material and/or waste
handling, storage, treatment, disposal or discharge laws or other laws, building
codes, zoning or other ordinances, rules or regulations, fire insurance
regulations, or covenants, conditions and restrictions whether federal, state,
local or private; and (ii) there exists no material violation of any covenants
or agreements of any kind with tenants, or with any governmental jurisdiction or
private party purporting or acting to restrict in any way the individual use
and/or severability of the Premises; and (iii) neither the Premises nor the
present operation and use, constitute an illegal use under any zoning or land
use law or regulation, and none of the foregoing is the subject of any variance
pursuant to any zoning or land use law or regulation; and (iv) there has not
occurred upon the Premises, any spillage, leakage, discharge or release into the
air, soil or groundwater of any Hazardous Materials.
(n) Lessor has received no notice and has no knowledge of any
pending or contemplated proceedings (i) to modify or amend any building code or
zoning or land use law or regulation which affects the Premises; (ii) to impose
any special assessment against or upon the Premises or any portion thereof; or
(iii) to modify, amend, suspend, revoke or terminate any
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environmental, occupancy, use, operating or other permit issued or pending in
connection with the Premises (except for the revocation of the license of Don
Cook Motors to operate an automobile dealership), or the occupancy, use of
operation thereon of any tenant thereon.
(o) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorships or voluntary or
involuntary proceedings in bankruptcy pursuant to any other debtor, relief loss
contemplated or filed by Lessor.
(p) There are no contracts or other obligations outstanding for the
sale, exchange or transfer of the Premises or any portion thereof.
(q) There is no litigation or proceeding pending or threatened
against or relating to Lessor or to any portion of the Premises.
(r) All utilities, including but not limited to, water,
electricity, telephone, cable and sanitary sewer services and facilities have
been extended to the Premises and are available to the Premises at a reasonable
cost to the Premises and capacity is adequate for the structures existing at the
time the structures were permitted and/or remodeled and adequate for current
usage.
(s) The use of the Premises as an automobile dealership is
permitted under the current zoning classification for the Premises. All permits
associated with use of the Premises as an automobile dealership have been
obtained and are in good standing. The Premises contains the necessary number of
parking spaces to be in compliance with applicable zoning regulations and land
development code of the applicable municipality. To the best of Lessor's
knowledge, all Improvements on the Premises where permitted, conforming
structures under applicable land use, zoning and building laws and ordinances in
effect when the Improvements were constructed. Lessee shall be responsible for
obtaining any special exception permits required by the local municipality.
(t) The Premises and Lessor are not in violation of any permit or
agreement obtained from any governmental body or agency in regards to the
development of the Premises.
ASSIGNMENT AND SUBLETTING
20.01 The Lessee covenants and agrees not to encumber or mortgage
Lessee's leasehold interest hereunder nor assign this Lease or sublet all or any
part of the Premises without the prior written consent of Lessor, such consent
not to be unreasonably withheld. No assignment or subletting, even with the
consent of Lessor, shall relieve Lessee of its obligations to pay rent any other
sums due by Lessee under this Lease and the performance of all obligations
required by Lessee under this Lease, unless Lessor shall specifically so agree.
ACCESS TO PREMISES
21.01 Lessor and Lessor's representatives shall have the right to enter
upon the Premises at all reasonable times after providing Lessee with prior
written notice for the purpose of
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inspecting same or for making repairs, additions or alterations pursuant to the
terms herein. Except in cases of emergency, Lessor and its agents shall be
accompanied by Lessee or its agents when in the Premises, and Lessor shall
conduct its examination and make its repairs in a manner reasonably calculated
to cause minimal interference with the business of Lessee.
SUBORDINATION
22.01 Upon request of the Lessor, Lessee will subordinate its rights
hereunder to the lien of any mortgage, deed of trust (including blanket
mortgages or deeds of trusts covering the Premises or other properties of the
Lessor) or any other security interest which has been or which hereafter may be
placed upon the Premises or any portion thereof, and to any renewals,
modifications, consolidations, replacements and extensions thereof; provided,
Lessee receives a non-disturbance agreement from the mortgage or lien holder
which shall recognize the validity and continuance of this Lease. Within sixty
(60) days of the date hereof, Lessor shall provide to Lessee, non-disturbance
agreements from all existing mortgagees which shall recognize the validity and
continuance of this Lease and provide that so long as Lessee is not in default
in the payment of rent or performance of any obligation under the Lease,
Lessee's possession of the Premises and its rights and privileges under the
Lease or any renewal thereof shall not be diminished or interfered with by the
mortgagee, and estoppel certificates from each mortgagee certifying that not
default exists under any loans, promissory notes or mortgages securing the
Premises. If any Lender does not agree to provide the aforesaid certificate,
Lessee shall have no obligation to subordinate or attorn to said Lender.
SIGNS
23.01 Lessee shall be entitled to place any and all signs necessary to
adequately display the name of Lessee and the business which Lessee is
conducting from the Premises. All of Lessee's signage shall be in compliance
with all applicable laws, codes and ordinances.
NO WAIVER
24.01 No delay or omission of the exercise of any right by either party
hereto shall impair any such right or shall be construed as a waiver of any
default or as an acquiescence thereto. One or more waivers of any violation or
breach or failure to comply with any of the covenants, terms, provisions or
conditions of this Lease by either party shall not be construed by the other
party as a waiver of any subsequent violation, breach or failure to comply with
the same or any other covenant, term, provision, or condition contained in this
Lease. No requirements whatsoever of this Lease shall be deemed waived or varied
because of either party's failure or delay in exercising its rights resulting
from any default, and Lessor's acceptance of any payment from Lessee with
knowledge of any default shall not constitute a waiver of Lessor's right with
respect to such default, nor of any subsequent default. All remedies provided
for herein shall be construed as cumulative and shall be in addition to every
other remedy otherwise available to Lessor.
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SUCCESSOR IN INTEREST
25.01 All provisions herein contained shall bind and inure to the
benefit of the respective parties hereto, their heirs, personal representatives,
successors and assigns.
NOTICES
26.01 Any notice which either party may or is required to give, shall
be given in writing and shall be deemed to have been duly given upon the date
thereof if delivered personally, or by facsimile provided that a duplicate copy
is promptly mailed by U.S. Mail, certified, return receipt requested, or upon
the date following the date thereof if delivered by overnight courier which
provides a receipt, such as Federal Express, in either case with adequate
postage prepaid, addressed to the appropriate party and marked to a particular
individual's attention as hereinafter provided. Each notice shall be effective
upon being so deposited, but the time period in which a response to any notice
must be given or any action taken with respect thereto shall commence to run
from the date of receipt of the notice by the addressee thereof as evidenced by
the return receipt. Rejection or other refusal by the addressee to accept or the
inability of the United States Postal Service or air courier service to deliver
because of a changed address of which no notice was given shall be deemed to be
the receipt of the notice sent as of the next business day following deposit. If
either party to this Lease shall change their address, that party shall notify
the other party of such change by notice delivered in accordance with this
paragraph. The initial addresses of the parties shall be as set forth below, or
at such other place as may be designated by the parties from time to time:
TO THE LESSOR AT: P.O. Box 19358
West Palm Beach, Florida 33416
WITH COPY TO: Bob Saylor
1615 Forum Place #300
West Palm Beach, Florida 33401
TO THE LESSEE AT: Smart Choice Automotive Group, Inc.
5200 South Washington Avenue
Titusville, Florida 32780
WITH COPY TO: Randolph Fields, Esquire
Greenberg Traurig
111 North Orange Avenue, Suite 2050
Orlando, FL 32801
Any notice or demand made as set forth above shall be deemed given three (3)
days after the date of mailing thereof or on the date of actual receipt, if
sooner; any other notice or demand not so mailed but delivered by courier
service or by hand delivery shall be deemed given on the date of actual receipt.
Such addresses may be changed from time to time by either party by serving
notices as above provided, but each party shall at all times have a physical
street address within the continental United States of America as one of the
addresses to which notices may be delivered.]
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ENTIRE AGREEMENT
27.01 This Lease contains the entire and only agreement between the
parties concerning the Premises and no prior oral or written statement or
representations, if any, of any party hereto or any representative of a part
hereto, not contained in this instrument, shall have any force or effect. This
Lease shall not be modified or terminated in any way except by a written
document executed by Lessor and Lessee. This Lease shall not be binding until it
has been executed by Lessee and Lessor.
AUTHORITY TO EXECUTE
28.01 Lessor and Lessee do hereby respectively represent to each other
that each has the capacity and authority to enter into this Lease. If either
Lessee or Lessor is a corporation (or partnership), each individual executing
this Lease on behalf of said corporation (or partnership) represents and
warrants that he/she is duly authorized to execute and deliver this Lease on
behalf of said corporation (or partnership) in accordance with the duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the bylaws of said corporation (or under the pertinent partnership agreements),
that any required consents or approvals of third parties have been obtained, and
that this Lease is binding upon said corporation (or partnership) in accordance
with its terms.
LEASE NOT RECORDABLE
29.01 At the request of either party, Lessor and Lessee shall promptly
execute, acknowledge and deliver a memorandum or short form of Lease sufficient
for recording. Said memorandum or short form of Lease shall make specific
reference to Lessee's Right of First Refusal provided in Section 44 of this
Lease. In no event shall this Lease be recorded and if Lessee records this Lease
in violation of the terms hereof, in addition to any other remedy available to
Lessor upon Lessee's default, Lessor shall have the option to terminate this
Lease by recording a notice to such effect. If a memorandum or short form of
lease is recorded, on the termination of this Lease, Lessee shall execute,
acknowledge and deliver to Lessor an instrument in writing releasing and
quit-claiming to Lessor all right, title and interest of Lessee in and to the
Premises by reason of this Lease or otherwise.
RADON GAS
30.01 Radon gas is a naturally occurring radioactive gas that when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
TIME OF ESSENCE
31.01 It is understood and agreed between the parties hereto that time
is of the essence of all the terms, provisions, covenants and conditions of this
Lease.
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ATTORNEYS' FEES
32.01 In the case of the failure of either party to perform and comply
with any of the covenants and conditions hereof within the time herein
specified, whether suit be brought or not, the party so failing to perform and
comply hereby agrees to pay to the other party hereto all costs, charges, and
expenses of such collection or other enforcement of rights in any suit or
otherwise, including its reasonable attorneys' fees. The prevailing party in any
litigation arising out of this Lease, including any appellate proceedings and
bankruptcy proceedings, shall be entitled to the award of its reasonable
attorney's fees and costs.
SEVERABILITY
33.01 If any provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provisions to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby and each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
APPLICABLE LAW
34.01 This Lease shall be construed under the laws of the State of
Florida and the venue of any action to enforce rights hereunder shall be Palm
Beach County, Florida.
LESSOR'S RIGHT TO SATISFY LESSEE'S OBLIGATIONS
35.01 If Lessee fails to observe or perform any term or condition of
this Lease within the grace period, if any, applicable thereto, then Lessor may
after written notice to Lessee perform the same for the account of Lessee. If
Lessor makes any expenditure or incurs any obligation for the payment of money
in connection with such performance for Lessee's account (including reasonable
attorneys' fees and costs in instituting, prosecuting and/or defending any
action or proceeding through appeal), the sums paid or obligations incurred
shall be paid by Lessee to Lessor upon demand. In the event Lessee in the
performance or nonperformance of any term or condition of this Lease should
cause an emergency situation to occur or arise within the Premises, Lessor will
have all rights set forth in this paragraph immediately without the necessity of
providing Lessee any advance notice.
OFFSET STATEMENT
36.01 Upon the request of either party at anytime and from time to
time, Lessor and Lessee agree to execute and deliver to the other within ten
(10) days after receipt of such request, a written instrument, duly executed,
addressed to either Lessor or Lessee, as may be applicable, and/or to any person
designated by either Lessor or Lessee, at their sole cost and expense, (a)
ratifying this Lease; (b) stating the commencement and termination dates of this
Lease and (c) certifying (1) that this Lease is in full force and effect and has
not been assigned, modified, supplemented or amended except by such writing as
shall be stated, (2) that all conditions under this Lease to be performed by
either the Lessor or Lessee have been satisfied (stating exceptions,
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if any,), (3) no defenses or offsets against the enforcement of this Lease by
Lessor or Lessee exist (or, if any, stating those claimed), (4) advance rent, if
any, paid by Lessee, (5) the date to which rent has been paid, (6) the amount of
security deposited with Lessor, if any, (7) the options available to Lessee to
extend the term and which options have been exercised, if any, and (8) such
other information as either party may reasonably require. Persons receiving such
statements shall be entitled to rely upon them.
CAPTIONS AND HEADING
37.01 The captions and headings are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such paragraphs of this Lease or in any way affect this Lease.
HAZARDOUS SUBSTANCES
38.01 For purposes of this paragraph, the term "Hazardous Substances"
means and shall include any substances defined as or included in the definition
of "hazardous substances", "hazardous waste", "hazardous materials", "toxic
substances", "contaminants", or any other substances declared to be hazardous or
toxic under any federal, state or local laws, ordinances, rules or regulations
now or hereafter in effect.
39.02 Lessor warrants and represents to Lessee that:
(a) To the best of their knowledge, the Premises and the Lessor are
not in violation of, or subject to any existing, pending, or threatened
investigation regarding the Premises by any federal, state or local governmental
authority, under any law, statute, ordinance or regulation pertaining to
Hazardous Substances (collectively, the "Environmental Laws");
(b) To the best of their knowledge, the previous uses and ownership
of the Premises have not resulted in the release or disposal of Hazardous
Substances on the Premises;
(c) To the best of their knowledge, there are no Hazardous
Substances or materials which are being stored or otherwise held on, under or
about the Premises, by the Lessor, except in compliance with all Environmental
Laws;
(d) To the best of their knowledge, any handling, transportation,
storage, treatment or use of Hazardous Substances that has occurred on the
Premises to date, has been in compliance with all Environmental Laws;
(e) To the best of their knowledge, no leak, spill, release,
discharge, omission or disposal of Hazardous Substances has occurred on the
Premises, to date, and the soils and groundwaters on or under the Premises are
free of Hazardous Substances as of the date of this Lease; and
(f) Lessor has not received any notice of any violation of any
Environmental Laws pertaining to the Premises.
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38.03 Lessor agrees to indemnify Lessee and hold Lessee and its
employees, partners, heirs, personal representatives, successors and assigns
harmless from and against any and all claims, losses, damages (including all
foreseeable and unforeseeable consequential damages), liabilities, fines,
penalties, charges, interest, administrative or judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith (including without
limitation attorney's fees and expenses), directly or indirectly resulting in
whole or in part from any violation of any Environmental Laws applicable to the
Premises caused by Lessor or caused during Lessor's ownership of the Premises.
Lessee shall be reimbursed by Lessor immediately upon demand for any and all
sums paid and costs incurred by Lessee with respect to the foregoing matters.
The foregoing Lessor's environmental indemnity shall survive the expiration or
termination of this Lease and/or any transfer of all or any portion of the
Premises, or of any interest in this Lease.
38.04 Lessee, its agents, employees, contractors or invitees, shall not
use the Premises in any manner that violates any applicable Environmental Laws.
Lessee shall not cause or permit the Premises to be used for the generation,
handling, storage, transportation, disposal or release of any Hazardous
Substances, except as exempted or properly permitted under applicable
Environmental Laws.
INDEPENDENT COVENANTS
39.01 The covenants to pay rent, additional rent and other amounts
hereunder are independent covenants, and Lessee shall not have the right to hold
back, off set, or fail to pay any such amounts for default by Lessor or any
other reason whatsoever.
CONSTRUCTION AND INTERPRETATION
40.01 The fact that a party may be deemed to have drafted or structured
any provision hereof shall not be considered in construing that particular
provision either in favor of or against such party.
QUIET ENJOYMENT
41.01 Upon payment by the Lessee of the rents herein provided, and upon
the observance and performance of all covenants, terms and conditions of
Lessee's part to be observed and performed, Lessee shall peacefully and quietly
hold and enjoy the Premises for the Term of this Lease without hindrance or
interruption by Lessor, subject nevertheless, to the terms and conditions of
this Lease.
RELATIONSHIP OF PARTIES
42.01 Notwithstanding anything contained herein to the contrary, it is
agreed that the Lessor shall in no event be deemed to be a partner or engaged in
a joint venture with, or an associate of, Lessee in the conduct of its business,
nor shall Lessor be liable for any debts incurred by Lessee in the conduct of
its business. Nothing in this Lease contained shall be deemed or
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<PAGE>
construed to confer upon Lessor any interest in the business of the Lessee. The
relationship of the parties during the term of this Lease shall at all times be
that of Lessor and Lessee.
BROKERAGE COMMISSION
43.01 Lessee represents and warrants that it has dealt with no person
or entity with respect to the leasing of the Premises, and that it knows of no
other persons or entity who would be entitled to any claim for brokerage
commission or finders fees in connection with the execution of this Lease and
hereby indemnifies Lessor against and holds harmless Lessor from and against all
liabilities arising from any such claim, including, without limitation,
attorney's fees and costs of litigation.
43.02 Lessor represents and warrants that it has dealt with no person
or entity with respect to the leasing of the Premises, and that it knows of no
other persons or entity who would be entitled to any claim for brokerage
commission or finders fees in connection with the execution of this Lease and
hereby indemnifies Lessee against and holds harmless Lessee from and against all
liabilities arising from any such claim, including, without limitation,
attorney's fees and costs of litigation.
RIGHT OF FIRST REFUSAL
44.01 If at any time during the term of this Lease or during any
optional renewal term which is applicable, Lessor receives a bona fide offer to
purchase the Premises which is acceptable to Lessor (hereinafter referred to as
Offer), Lessor shall notify Lessee in writing of Offer and all of its terms and
conditions, in detail (hereinafter referred to as Notice of Offer). Lessee shall
have twenty (20) days from receipt of Notice of Offer in which to notify Lessor
in writing of its election to purchase the Premises in accordance with the terms
and conditions of Offer.
44.02 If Lessee elects to purchase the Premises in accordance with the
terms and conditions of Offer, the closing shall be as specified in Offer.
44.03 If Lessee fails to notify Lessor of its election to purchase the
Premises in accordance with the terms and conditions of Offer within twenty (20)
days from receipt of Notice of Offer, then Lessor may accept Offer from the
third party provided the terms and conditions of Offer are unchanged and the
closing takes place within the time period and on all the terms and conditions
set forth in Offer. This paragraph 44.03 shall apply to any form of exchange of
the Premises for other property, but shall not apply to a gift, inheritance or
distribution to the shareholder of Lessee. Failure by Lessee, on any given
occasion, to exercise the foregoing right of first refusal shall not be deemed
to preclude Lessee from exercising such right on any subsequent given occasion.
The within right of first refusal shall survive any transfer(s) of the Premises
.
44.04 Lessee shall have no right of First Refusal, and this Article 44
shall not be applicable to, transfers from Lessor or Don Cook to any family
member of Don Cook or any entity wholly-owned by Lessor and/or Don Cook.
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LESSOR'S CONSENT
45.01 Anything in this Lease to the contrary notwithstanding, whenever
according to the terms of this Lease the consent of Lessor shall be required,
Lessor covenants that it shall not unreasonably withhold or delay the granting
of its consent to any action contemplated by Lessee.
COUNTERPARTS
46.01 This Lease may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall constitute
but one instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have set their hand and seals
this 30th day of June, 1997.
<TABLE>
<S> <C>
WITNESSES: LESSOR:
/S/ THOMAS E. CONLAN BOARTMART, INC.,
A FLORIDA CORPORATION
Print Name: THOMAS E. CONLAN
/S/ JAN CRANK By: /S/ MADIE A. STRATEMEYER
Name: MADIE A. STRATEMEYER
Print Name: JAN CRANK Title: PRESIDENT
LESSEE:
/S/ ELIZABETH A. ZYGMUNTOWICZ FIRST CHOICE AUTO FINANCE, INC., A FLORIDA CORPORATION
Print Name: ELIZABETH A. ZYGMUNTOWICZ
By: /S/ J. NEAL HUTCHINSON, JR.
/S/ JAMES T. VARNADOE Name: J.N. HUTCHINSON, JR.
Title: V.P.
Print Name: JAMES T. VARNADOE
</TABLE>
THE UNDERSIGNED, SMART CHOICE AUTOMOTIVE GROUP, INC., joins herein to evidence
its agreement to unconditionally guarantee all obligations of Lessee hereunder.
<TABLE>
<S> <C>
WITNESSES: GUARANTOR:
/S/ ELIZABETH A. ZYGMUNTOWICZ SMART CHOICE AUTOMOTIVE GROUP, INC.,
A FLORIDA CORPORATION.
Print Name: ELIZABETH A. ZYGMUNTOWICZ
/S/ JAMES T. VARNADOE By: /S/ J. NEAL HUTCHINSON, JR.
Name: J.N. HUTCHINSON, JR.
Print Name: JAMES T. VARNADOE Title: ASSISTANT V.P.
</TABLE>
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<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASE
AND INDEMNIFICATION AGREEMENT
(Okeechobee Lease)
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND INDEMNIFICATION AGREEMENT
(the "Assignment") is made and entered into this 30th day of June, 1997, by and
between STRATA HOLDING, INC., a Florida corporation, d/b/a DON COOK MOTORS (the
"Assignor"), and FIRST CHOICE AUTO FINANCE, INC., a Florida corporation (the
"Assignee").
R E C I T A L S:
A. ATLAS AUTO STORAGE, INC., a Florida corporation("Atlas"), as
Lessee, and FRANK J. ZAIC and HELENA S. ZAIC (collectively, "Zaic"), as Lessor
entered into that certain Agreement of Lease dated as of May 30, 1984 (the
"Master Lease"), a copy of which is attached hereto as EXHIBIT "A" and
incorporated herein by this reference, whereby Zaic leased to Atlas certain
property located at 2000 Okeechobee Blvd., West Palm Beach, Florida 33409, as
more particularly described in the Master Lease (the "Demised Premises"), the
term of which Master Lease began on January 1, 1987 and will end on December 31,
1997.
B. Atlas, as Sublessor, and PALM BEACH FINANCE AND MORTGAGE, INC.
("Palm Beach Finance"), a Florida corporation, as Sublessee, entered into that
certain Agreement of Sublease dated as of October 16, 1985 (the "Sublease"), a
copy of which is attached hereto as EXHIBIT "B" and incorporated herein by this
reference, whereby Atlas subleased to Palm Beach Finance the Demised Premise
subject to and upon the terms and conditions of the Master Lease, the term of
which Sublease began on January 1, 1987.
C. By Non-Disturbance Agreement dated October, 1985 by and between
Zaic, Atlas and Palm Beach Finance, a copy of which is attached hereto as
EXHIBIT "C" and incorporated herein by this reference, Zaic agreed, pursuant to
the terms thereon, not to disturb Palm Beach Finance in its possession of the
Demised Premises under the Sublease.
D. By Assignment of Lease dated October 16, 1985, (the "First
Assignment") by and between Palm Beach Finance and CARS LIMITED, INC. d/b/a PALM
BEACH AUTO STORAGE ("Cars Limited"), Palm Beach Finance assigned, transferred
and set over unto Cars Limited all of Palm Beach Finance's right, title and
interest in and to the Sublease. A copy of the First Assignment is attached
hereto as EXHIBIT "D" and incorporated herein by this reference.
E. By letter dated November 20, 1992, a copy of which is attached
hereto as EXHIBIT "E" and incorporated herein by this reference, Cars Limited,
as sublessee under the Sublease, exercised its right to extend the Sublease, the
term of which will end on December 31, 1997.
F. Cars Limited, as Lessee, and Zaic, as Lessor, entered into that
certain Agreement of Lease dated as of December 30, 1994 (the "New Lease"), a
copy of which is attached hereto as EXHIBIT "F" and incorporated herein by this
reference, whereby, upon the expiration of the Master
<PAGE>
Lease and Sublease on December 31, 1997, Zaic will lease the Demised Premises
directly to Cars Limited.
G. By Assignment of Lease dated May 9, 1997 (the "Second Assignment")
by and between Cars Limited and Assignor, Cars Limited assigned, transferred and
set over unto Assignor all of Car's Limited's right, title and interest in and
to the Sublease and the New Lease. A copy of the Second Assignment is attached
hereto as EXHIBIT "G" and incorporated herein by this reference.
H. Assignor has on this day transferred, sold and conveyed to
Assignee certain assets of Assignor used or usable by Assignor in the operation
of an automobile dealership business (the "Business") from the Demised Premises.
I. In connection with sale to Assignee of those certain assets of
Assignor used or usable by Assignor in the operation of the Business, Assignor
is desirous of assigning to Assignee all of Assignor's rights, title and
interest in and to the Sublease and the New Lease, and Assignee is willing to
accept such assignment of the Sublease and the New Lease and assume Assignor's
obligations under the Sublease and the New Lease from and after the date of this
Assignment.
NOW, THEREFORE, in consideration of the foregoing and the agreements
and covenants herein set forth, the sum of Ten and No/100 Dollars ($10.00), and
other good and valuable consideration paid by Assignee to Assignor, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The above Recitals are true and correct and are incorporated herein
by this reference.
2. Assignor does hereby assign, transfer, set over and deliver unto
Assignee the Sublease and the New Lease, subject to all terms, conditions,
reservations and limitations set forth in the Sublease, the New Lease and the
Master Lease, and all of Assignor's right, title and interest in and to the
Sublease and the New Lease, including, but not limited to, all of Assignor's
right, title and interest in and to the right of first refusal to purchase the
Demised Premises pursuant to Section XV of the New Lease.
3. Assignee hereby accepts the foregoing assignment and hereby assumes
and agrees to perform all of the terms, covenants and conditions of the
Sublease, the New Lease and the terms of the Master Lease which are incorporated
into the Sublease, on the part of the Lessee therein to be performed from and
after the date hereof.
4. Assignor hereby represents and warrants as follows:
a. That Assignor has not entered into or executed a prior
assignment of the Sublease or New Lease.
b. That Assignor has full authority to enter into this Assignment,
and the execution hereof is not precluded or prohibited in any manner or for any
reason whatsoever.
2
<PAGE>
c. That the Master Lease, Sublease and New Lease are in full force
and effect according to their terms, and no default exists under either the
Master Lease, Sublease or New Lease. Exhibits "A," "B," and "F" attached hereto
are true and complete copies of the Master Lease, Sublease and New Lease,
respectively, and all amendments thereto.
d. That the term of the Master Lease commenced on January 1, 1987,
the term of the Sublease commenced on January 1, 1997, and that the term of the
New Lease will commence on January 1, 1998.
e. That there exists no facts and no events have occurred which,
with the passage of time or the giving of notice or both, would constitute a
breach or default on the part of any party under the Master Lease, Sublease or
New Lease.
f. That the current monthly rent due under the Sublease is $3,000,
which (EXCLUDES) sales tax at the rate of 6% and such rent has been paid in full
through and including June 30, 1997.
g. That, as of January 1, 1998, the monthly rent due under the New
Lease is $3,750.00, which EXCLUDES sales tax at the rate of 6% and the first
monthly installment of rent is not yet due and payable and has not been paid.
h. Assignor has received no notice from any governmental authority
nor does Assignor have any knowledge that the Demised Premises, or any part
thereof, is in violation of any applicable laws, ordinances, regulations,
statutes or other governmental rules.
5. Assignee hereby represents and that Assignee has full authority to
enter into this Assignment, and the execution hereof is not precluded or
prohibited in any manner or for any reason whatsoever.
6. Assignor covenants and agrees to indemnify, defend and hold Assignee
harmless from and against any and all claims, actions, damages, liabilities and
expenses (including without limitations, reasonable attorneys' fees and court
costs whether incurred at trial, appellate level and/or bankruptcy or other
creditor's rights proceedings) imposed on, incurred by or asserted against
Assignee by reason of or arising under the Master Lease, Sublease or New Lease
prior to the date of this Assignment, including, but not limited to losses,
liabilities (including strict liability), damages, injuries, expenses, including
reasonable attorney's fees, costs of any settlement or judgment and claims of
any and every kind whatsoever paid, incurred or suffered by or against Assignee
by any person, or entity or governmental agency for, with respect to, or as a
direct or indirect result of any release, escape, discharge, seepage, leakage,
spillage or emission from the Demised Premises of any Hazardous Substance (as
that term is defined in any Federal, state or local environmental law) or any
violation of any Federal, state or local environmental law occurring before the
date of this Assignment.
7. Assignee covenants and agrees to indemnify, defend and hold Assignor
harmless from and against any and all claims, actions, damages, liabilities and
expenses (including without
3
<PAGE>
limitation, reasonable attorneys' fees and court costs whether incurred at
trial, appellate level and/or bankruptcy or other creditor's rights proceedings)
imposed on, incurred by or asserted against Assignor by reason of or arising
under the Master Lease, Sublease or New Lease from and after the date of this
Assignment, including, but not limited to losses, liabilities (including strict
liability), damages, injuries, expenses, including reasonable attorney's fees,
costs of any settlement or judgment and claims of any and every kind whatsoever
paid, incurred or suffered by or against Assignee by any person, or entity or
governmental agency for, with respect to, or as a direct or indirect result of
any release, escape, discharge, seepage, leakage, spillage or emission from the
Demised Premises of any Hazardous Substance (as that term is defined in any
Federal, state or local environmental law) or any violation of any Federal,
state or local environmental law occurring after the date of this Assignment.
8. All of the covenants, terms and conditions set forth in this
Assignment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
9. This Assignment shall be construed and enforced in accordance with
the laws of the State of Florida.
10. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall be deemed to be a
single instrument and shall be effective when one or more counterparts have been
signed by each of the parties.
11. In the event that either party finds it necessary to employ an
attorney to enforce any of the provisions of this Assignment, the prevailing
party shall be entitled to recover from the other party reasonable attorneys'
fees and costs incurred in connection therewith, at both trial and appellate
levels, including bankruptcy proceedings, whether such fees are involved in
monitoring the bankruptcy proceeding or are incurred in active litigation within
such proceeding, in addition to any other performances or damages to which the
party may be entitled.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
4
<PAGE>
IN WITNESS WHEREOF, this Assignment and Assumption of Lease and
Indemnification Agreement has been executed by the parties hereto in a manner
and form sufficient to bind them on the day and year first above written.
Signed, sealed and delivered
in the presence of:
WITNESSES: ASSIGNOR:
STRATA HOLDING, INC.,
a Florida corporation
/S/ TOM CONLAN /S/ DON COOK
Print Name: TOM CONLAN Print Name: DON COOK
JAN CRANK Its: PRESIDENT
Print Name: JAN CRANK
ASSIGNEE:
FIRST CHOICE AUTO FINANCE, INC.,
a Florida corporation
By: /S/ J.NEAL HUTCHINSON, JR.
Print Name: Print Name: J.N. HUTCHINSON, JR.
Its: V.P.
Print Name:
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<PAGE>
JOINDER AND CONSENT OF LESSOR
FRANK J. ZAIC AND HELENA S. ZAIC as the Lessor under the Master Lease
and New Lease, hereby consent to the assignment and transfer of the Sublease and
New Lease by Assignor to Assignee and to the assumption of the Sublease and New
Lease and all terms and conditions therein by Assignee.
Lessors hereby warrant and represent to Assignor and Assignee as
follows:
1. The Master Lease, Sublease and New Lease are in full force and
effect and that no default exists under the Lease. Exhibits "A," "B," and "F"
attached hereto are true and complete copies of the Master Lease, Sublease and
New Lease, respectively, and all amendments thereto.
2. That the term of the Master Lease commenced on January 1, 1987, the
term of the Sublease commenced on January 1, 1997, and that the term of the New
Lease will commence on January 1, 1998.
3. The terms of both Master Lease and Sublease were properly extended
by the appropriate lessee thereunder and shall expire on December 31, 1997.
4. There exists no facts and no event has occurred which, with the
passage of time or the giving of notice or both, would constitute a breach or
default on the part of any party under the Master Lease, Sublease or New Lease.
5. The current monthly rent due under the Sublease is $3,000, which
(EXCLUDES) sales tax at the rate of 6% and such rent has been paid in full
through and including June 30, 1997.
6. As of January 1, 1998, the monthly rent due under the New Lease is
$3,750.00, which EXCLUDES sales tax at the rate of 6% and the first monthly
installment of rent is not yet due and payable and has not been paid.
7. Lessor has received no notice from any governmental authority nor
does Lessor have any knowledge that the Demised Premises, or any part thereof,
is in violation of any applicable laws, ordinances, regulations, statutes or
governmental rules.
8. There are no eminent domain proceedings currently pending which
affect the Demised Premises nor does Lessor have any knowledge of any threatened
or contemplated eminent domain proceedings which will affect the Demised
Premises.
9. The use of the Demised Premises as an automobile dealership is
permitted under the current zoning classifications for the Demised Premises.
Lessor hereby agrees and acknowledges that from the date of this
Assignment through the end of the term of the New Lease, as extended, renewed or
modified, Assignee shall have the right of first refusal to purchase the Demised
Premises pursuant to the terms of Section XV of the New Lease.
6
<PAGE>
IN WITNESS WHEREOF, this Joinder and Consent of Lessor which is a part
of the Assignment and Assumption of Lease and Indemnification Agreement has been
executed by the Lessor in a manner and form sufficient to bind Lessor on the day
and year set forth hereinbelow.
Signed, sealed and delivered in the presence of:
WITNESSES: LESSOR:
FRANK J. ZAIC
Print Name:
____________________________________
HELENA J. ZAIC
Print Name: Date:
7
<PAGE>
EXHIBIT "A"
MASTER LEASE
<PAGE>
EXHIBIT "B"
SUBLEASE
<PAGE>
EXHIBIT "C"
NONDISTURBANCE AGREEMENT
<PAGE>
EXHIBIT "D"
FIRST ASSIGNMENT
<PAGE>
EXHIBIT "E"
EXERCISE OF RENEWAL OPTION
<PAGE>
EXHIBIT "F"
NEW LEASE
<PAGE>
EXHIBIT "G"
SECOND ASSIGNMENT
<PAGE>
This document was prepared by
and should be returned to:
Orlando L. Evora, Esq.
Greenberg Traurig Hoffman Lipoff
Rosen & Quentel, P.A.
P. O. Box 4923
Orlando, Florida 32802-4923
TERMINATION OF LEASE
This Termination of Lease (the "Termination") is made and entered into
as of this 30th day of June, 1997, by and between STRATA REALTY, INC., a Florida
corporation, whose address is 1589 South Military Trail, West Palm Beach,
Florida 33415 (the "Landlord"), and STRATA HOLDING, INC., a Florida corporation,
whose address is 1589 South Military Trail, West Palm Beach, Florida 33415 (the
"Tenant").
R E C I T A L S:
A. Landlord and Tenant entered into a certain Real Estate Lease dated
June 1, 1995 (the "Lease"), whereby Tenant leased from Landlord certain real
property lying and being in Palm Beach County, Florida, together with
improvements thereon, consisting of an 8,000 sq. ft. sales office, business
office, shop area and the surrounding parking lot, more particularly described
as follows (the "Property"):
See EXHIBIT "A" attached hereto and incorporated herein by
this reference.
B. Landlord and Tenant have not sold, transferred, conveyed or assigned
any interest in and to the Lease and are the only parties with any interest in
and to the Lease.
C. Landlord and Tenant desire to terminate the aforementioned Lease.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. The above recitals are true and correct and are incorporated herein
by this reference.
2. Landlord and Tenant do hereby acknowledge and agree that the Lease
is hereby terminated as of the date of this Termination and thenceforth shall be
null and void.
3. This Termination and all of the provisions hereof shall bind and
inure to the benefit of the parties herein, their heirs, personal
representatives, successors and assigns.
1
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Termination of Lease
to be signed, sealed and delivered all as of the day, month and year first above
written.
Signed, sealed and delivered
in the presence of: LANDLORD:
STRATA REALTY, INC., a Florida
corporation
/S/ TOM CONLAN By: /S/ DON COOK
Print Name: DON COOK
Print Name: TOM CONLAN Title: PRESIDENT
/S/ JAN CRANK
Print Name: JAN CRANK
TENANT:
/S/ TOM CONLAN STRATA HOLDING, INC., a Florida
corporation
Print Name: TOM CONLAN
By: /S/ DON COOK
/S/ JAN CRANK Print Name: DON COOK
Title: PRESIDENT
Print Name: JAN CRANK
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 30th day of
June, 1997, by Don Cook, as the President of STRATA REALTY, INC., a Florida
corporation, on behalf of the corporation. He is personally known to me (X), or
has produced _________________________ as identification.
/S/ JANICE M. CRANK
NOTARY PUBLIC
Print Name: JANICE M. CRANK
My Commission Expires:
2
<PAGE>
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 30th day of
June, 1997, by Don Cook, as the President of STRATA HOLDING, INC., a Florida
corporation, on behalf of the corporation. He is personally known to me (X), or
has produced ____________________ as identification.
/S/ JANICE M. CRANK
NOTARY PUBLIC
Print Name: JANICE M. CRANK
My Commission Expires:
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<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
The South 162.18 feet. of the east 473.03 feet of the South 1/2 of Lot 1, Block
3, lying west of a platted road right-of-way (60 ft.) as shown on Plat No. 1,
Palm Beach Plantations, a subdivision of Section 12, Township 44 South, Range 42
East, according to the Plat thereof on file in the office of the Clerk of
Circuit Court in and for Palm Beach County, in Plat Book 10, Page 20, except the
East 30 feet thereof conveyed to Palm Beach County for road purpose, but
including an easement for ingress and egress via the 25 foot strip of land lying
north of and adjacent to the north line of the above described.
4
<PAGE>
This document was prepared by
and should be returned to:
Orlando L. Evora, Esq.
Greenberg Traurig Hoffman Lipoff
Rosen & Quentel, P.A.
P. O. Box 4923
Orlando, Florida 32802-4923
TERMINATION OF LEASE
This Termination of Lease (the "Termination") is made and entered into
as of this 30th day of June, 1997, by and between BOATMART, INC., a Florida
corporation, whose address is 1575 South Military Trail, West Palm Beach,
Florida 33415 (the "Landlord"), and READY FINANCE, INC., a Florida corporation,
whose address is 1575 South Military Trail, West Palm Beach, Florida 33415 (the
"Tenant").
R E C I T A L S:
A. Landlord and Tenant entered into a certain Real Estate Lease dated
September 1, 1993 (the "Lease"), whereby Tenant leased from Landlord certain
real property lying and being in Palm Beach County, Florida, together with
improvements thereon, consisting of a 2135 sq. ft. office building and all
surrounding property (162' frontage by 450' deep, 72,000 sq. ft.) located at
1575 South Military Trail, West Palm Beach, Florida (the "Premises").
B. Landlord and Tenant have not sold, transferred, conveyed or assigned
any interest in and to the Lease and are the only parties with any interest in
and to the Lease.
C. Landlord and Tenant desire to terminate the aforementioned Lease.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. The above recitals are true and correct and are incorporated herein
by this reference.
2. Landlord and Tenant do hereby acknowledge and agree that the Lease
is hereby terminated as of the date of this Termination and thenceforth shall be
null and void.
3. This Termination and all of the provisions hereof shall bind and
inure to the benefit of the parties herein, their heirs, personal
representatives, successors and assigns.
1
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Termination of Lease
to be signed, sealed and delivered all as of the day, month and year first above
written.
Signed, sealed and delivered
in the presence of: LANDLORD:
BOATMART, INC., a Florida corporation
/S/ TOM CONLAN By: /S/ MADIE A. STRATEMEYER
Print name: MADIE A. STRATEMEYER
Print Name: TOM CONLAN Title: PRESIDENT
/S/ JAN CRANK
Print Name: JAN CRANK
TENANT:
READY FINANCE, INC., a Florida
corporation
/S/ TOM CONLAN
Print Name: TOM CONLAN By: /S/ DON COOK
Print Name: DON COOK
/S/ JAN CRANK Title:
Print Name: JAN CRANK
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 30th day of
June, 1997, by Madie A. Stratemeyer, as the President of BOATMART, INC., a
Florida corporation, on behalf of the corporation. She is personally known to me
(X), or has produced ___________________ as identification.
/S/ JANICE M. CRANK
NOTARY PUBLIC
Print Name: JANICE M. CRANK
My Commission Expires:
2
<PAGE>
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 30th day of
June, 1997, by Don Cook, as the President of READY FINANCE, INC., a Florida
corporation, on behalf of the corporation. He is personally known to me (X), or
has produced ________________________ as identification.
/S/ JANICE M. CRANK
NOTARY PUBLIC
Print Name: JANICE M. CRANK
My Commission Expires:
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<PAGE>
This instrument was prepared by
and should be returned to:
Orlando L. Evora, Esquire
Greenberg Traurig Hoffman
Lipoff Rosen & Quentel, P.A.
111 North Orange Avenue, Suite 2050
Orlando, Florida 32801
MEMORANDUM OF LEASE AGREEMENT
(Don Cook Motors Property)
This is a Memorandum of that certain unrecorded Lease Agreement dated
June 30, 1997, by and between STRATA REALTY, INC., a Florida corporation (the
"Lessor"), whose address is 1589 South Military Trail, West Palm Beach, Florida
33415, and FIRST CHOICE AUTO FINANCE, INC., a Florida corporation (the
"Lessee"), whose address 5200 South Washington Avenue, Titusville, FL 32780 (the
"Lease"), concerning the Premises (as described below).
FOR GOOD AND VALUABLE CONSIDERATION, Lessor leases to Lessee the
Premises which are described as follows (the "Premises"):
(a) See Exhibit "A" attached hereto and incorporated herein
by this reference.
(b) All buildings, structures and improvements now or
hereafter erected on such land either prior to the
commencement of or during the term of the Lease and all
fixtures, alarm systems, light fixtures, ceiling fans, air
conditioning, heating, plumbing, electrical and other utility
systems, equipment and other property located therein both
prior to the commencement of and during the term of the Lease
for a term of five (5) years commencing on July 1, 1997, and terminating on July
1, 2002, at 11:59 P.M., pursuant to the terms and under the provisions contained
in the Lease, such Lease being incorporated in this Memorandum by this reference
as though set forth in full herein. Tenant has the right to extend the Lease for
three (3) consecutive terms of five (5) years each.
Pursuant to the terms of the Lease, Lessor grants to Lessee the right
of first refusal to purchase the Premises upon the terms and subject to the
conditions set forth in the Lease.
The Lease contains the following provision: "Pursuant to FLORIDA
STATUTES, Section 713.10, notice is hereby given that Lessor shall not be liable
for any labor or materials furnished or to be furnished to Lessee, and that no
construction or other lien for any such labor or materials shall attach to or
affect the reversionary or other estate or interest of Lessor in and to the
Premises."
<PAGE>
Accordingly, all contractors, subcontractors, mechanics, laborers, materialmen
and others who perform any work, labor or services, or furnish any materials or
otherwise participate in the construction if improvements on the Premises, are
hereby given notice that Lessee is not authorized to subject Lessor's interest
in the Premises to any claim from mechanic's, construction, laborer's,
materialmen's liens, or other liens, and all persons dealing directly or
indirectly with Lessee may not look to the interest of Lessor in and to the
Premises as security for payment of such labor, services or materials.
This Memorandum is not a complete summary of the Lease and is made and
executed by the parties hereto for the purpose of recording the same in the
Public Records of Palm Beach County, Florida. Provisions in this Memorandum
shall not be used in interpreting the Lease provisions. In the event of conflict
between this Memorandum and the Lease, the Lease shall control.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease
on the 30th day of June, 1997.
WITNESSES: LESSOR:
/S/ TOM CONLAN STRATA REALTY, INC., A FLORIDA
CORPORATION
Print Name: TOM CONLAN
/S/ JAN CRANK
JAN CRANK By: /S/ DON COOK
Print Name: DON COOK
Print Name: Title: PRESIDENT
Date signed: 6-30-97
LESSEE:
/S/ JAMES VARNADOE FIRST CHOICE AUTO FINANCE, INC.,
A FLORIDA CORPORATION
Print Name: JAMES VARNADOE
/S/ BRUCE E. MACDONOUGH By: /S/ J. NEAL HUTCHINSON, JR.
Print Name: J. NEAL HUTCHINSON, JR.
Print Name: BRUCE E. MACDONOUGH Title: V.P.
Date signed: 6/30/97
<PAGE>
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 30th day of
June, 1997, by Don Cook, as President STRATA REALTY, INC., a Florida
corporation, on behalf of the corporation. He is personally known to me (X) or
has produced ______________________ as identification.
/S/ JANICE M. CRANK
NOTARY PUBLIC
Print Name: JANICE M. CRANK
My Commission Expires:
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 30th day of
June, 1997, by J.N. Hutchinson, as Vice President of FIRST CHOICE AUTO FINANCE,
INC., a Florida corporation, on behalf of the corporation. He is personally
known to me (X) or has produced _______________________ as identification.
/S/ ELIZABETH A. ZYGMUNTOWICZ
NOTARY PUBLIC
Print Name: ELIZABETH A. ZYGMUNTOWICZ
My Commission Expires:
