EXHIBIT 10.4
OFFICE LEASE
THIS LEASE is made between Xxxxxx X. Xxxxxxx hereafter called "Lessor", whose
address for purposes of notice under this lease is 0000 XX Xxxx Xxx, Xxxxxx,
Xxxxxxx 00000, and Xxxxxxxx Citrus Sales of Florida, hereafter called
"Lessee,"whose address for purposes of notice under this lease is 0000 XX Xxxx
Xxxx, Xxxx Xxxx Xxxxxxx, 00000
The parties agree as follows:
1. AGREEMENT TO LEASE: DESCRIPTION OF THE PROPERTY. The Lessor leases to
the Lessee, and the Lessee rents from the Lessor, the following described
commercial space (hereinafter called the "premises"):
The office space located at 00X Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx,
containing approximately 1, 950 square feet of leaseable space.
2. TERMS OF LEASE: The term of this lease shall be a period of one year,
commencing on June 1, 1999, and ending at 12:00 midnight on May 31, 2000.
Provided, however, that the Lessee shall have the right to renew this lease for
an additional term of two years, on like terms and conditions, by delivering a
written notice of intention to renew lease to Lessor no later than 90 days from
the end of the term.
3. RENTAL. Lessee shall pay to Lessor as rental at the address set forth
above, or at any other address that Lessor may designate, the minimum annual
rent of $22,800.00, plus applicable sales tax, in lawful money of the United
States of America. The minimum annual rental shall be payable as follows and
shall be paid in advance on the 1st day of each calendar month during the term
of this lease and any renewal of it.
June 1, 1999 .00
July 1, 1999 1500.00
Aug 1, 1999 1500.00
Sept - Dec 1999 2200.00
Jan - May 20, 2000 2200.00
If any payment is not received by Lessor by 12:00 midnight on the 10th day
following the day on which payment is due, a late fee equal to 5% of the
delinquent payment shall be due from Lessee to Lessor as additional rent.
4. TAXES. Lessor shall be responsible for all municipal, county, or state
taxes assesses during the term of this lease on the leased real property. Lessee
agrees to pay any taxes levied against the personal property and trade fixtures
of the Lessee in or about the premises, provided however, that if any such taxes
of Lessee are levied against Lessor or Lessor's property, or if the assesses
value of Lessor's property is increased by the inclusion of the value placed on
Lessee's property and Lessor pays those taxes, Lessee, on demand, shall
reimburse Lessor for all taxes actually paid on Lessee's behalf.
5. COMMON AREA. Common Areas shall mean all parking areas, sidewalks, entry
areas, curbs, walkways, drainage facilities, landscaped areas, common restrooms
(if any), outside lighting, or other areas or facilities available for the
common use or benefit of Lessees or customers of the building or complex in
which the premises are located. Lessor shall, subject to normal wear and tear
and events beyond its reasonable control, maintain during the term of this Lease
the Common Areas in good order and repair. The Common Areas shall be subject to
the exclusive control and management of Lessor and Lessor shall have the right
to establish, modify, change and enforce from time to time rules and regulations
with respect to the Common Areas so long as such rules are not discriminatory
against Lessee, and Lessee agrees to abide by and conform with such rules and
regulations. Lessor reserves the right at any time during the term of this Lease
to predesignate, alter, modify, expand, reduce and to change the Common Areas on
either a temporary or permanent basis.
In addition to th premises, Lessee shall have the right to nonexclusive use
of the Common Areas. Lessee shall be permitted the exclusive use of one double
parking space and one single parking space in the Office building parking lot.
Lessor may institute a system off authorization stickers or tags. No spaces may
be marked or signed by Lessee without Lessor's prior written consent.
6. SUBORDINATION. This Lease and all rights of Lessee under it are and
shall be subject to and subordinate to the rights of any mortgage holder now or
hereafter having a security interest in the leased premises or any other
encumbrances Lessor desires to place on the property.
7. LESSEE'S COVENANTS. Lessee further covenants and agrees as follows:
a. To pay the rent and every installment of it when it comes due; to
use the premises in a careful and proper manner; to commit or permit no waster
or damages to the premises; to conduct or permit no business or act that is a
nuisance or may be in violation of any federal, state, local law or ordinance;
to surrender the premises on expiration or termination of this lease in clean
condition and good repair, normal wear and tear excepted, provided, however,
that all alterations, additions, and improvements permanently attached and made
by Lessee, its successors, subleases, and assigns, movable furniture ,
equipment, supplies, inventory, and special air-conditioning equipment installed
by Lessee) shall become and remain property of Lessor on the termination of
Lessee's occupancy of the premises. Lessee shall not make any use of the
premises which would make void or voidable any policy of fire or extended
coverage insurance, or cause an increase in the cost thereof, covering the
premises.
b. To repair, service, keep and maintain the interior of the
premises, including all wiring, piping, fixtures, doors, equipment and
appurtenances in good and substantial repair excepting ordinary wear and tear
during the entire term of this Lease. Lessee agree t make such repairs promptly
as they may be needed at Lessee's expense. Lessee shall be responsible for any
security monitoring of the Premises.
c. To pay all costs of fuel, electricity, garbage, telephone, and all
other utilities used on the premises. All those amounts shall be paid within ten
days of becoming due.
d. To maintain at all times during the lease term, at Lessee's cost,
a comprehensive public liability insurance policy protecting Lessor against all
claims or demands that may arise or be claimed on account of Lessee's use of the
premises, in an amount of at lest $1,000,000.00 for injuries to
persons in one accident $1,000,000.00 for injuries to any one person, and
$500,000.00 for damages to property. The insurance shall be written by a company
or companies acceptable to Lessor, authorized to engage in the business of
general liability insurance in the State of Florida. Lessee shall deliver to
Lessor annual certificates demonstrating that insurance is paid up. If Lessee
fails to furnish policies or certificates showing policies to paid in full as
provided in this lease, Lessor may obtain the insurance, and the premiums on
that insurance will be deemed additional rental to be paid by Lessor on demand.
e. To prohibit and refrain from engaging or in or in allowing any use
of leased premises that will increase Lessor's premiums for insurance on the
building without the express written consent of Lessor.
f. To indemnify and hold harmless Lessor and the leased premises from
all costs, losses, damages, liabilities, expenses, penalties, and fines
whatsoever that may arise from or be claimed against Lessor or the leased
premises by any person or persons for any injury to person or property or damage
of whatever kind or character arising from: the use or occupancy of the leased
premises by Lessee; from any neglect or fault of Lessee or the agents and the
employees of Lessee in using and occupying the premises, Lessee agrees that
Lessee or any other person on the premises will defend it. Pay whatever
judgments may be recovered against Lessor or against the premises on account of
it and pay for all attorneys' fees in connection with it, including attorneys'
fees on appeal.
g. To make no major alterations in or additions or improvements to;
install any permanently affixed equipment in, or maintain signs advertising its
business on the premises without, in each case, obtaining written consent of
Lessor, which consent shall not be unreasonably withheld. If any alterations,
additions, or improvements in or to the premises are made necessary by reason of
the special use and occupancy of the premises by Lessee, Lessee agrees that
Lessee will make all such alterations, additions, and improvements in or to the
premises at its own expense (or, if applicable, within the Lessor's approved
renovation/build out budget) and in compliance with all building costs,
ordinances, and governmental regulations pertaining to such work, use, or
occupancy. Lessee agrees that Lessee will hold Lessor harmless against all
expenses, liens, claims, and damages to either property or person that may or
might arise because any repairs, alterations, additions or improvements are
made.
h. To permit Lessor to enter, inspect, and make such repairs to the
leased property as Lessee may reasonable desire, at all reasonable times, and to
permit Lessor to put on the leased premises a notice that Lessee may not remove
stating that premises are for rent one month preceding the expiration of this
lease.
i. To not assign the Lease nor any right hereunder, not let or sublet
all or part of the premises, nor suffer or permit any person or corporation to
use any part of the premises, nor suffer or permit any person or corporation to
use any part of the premises, without first obtaining the express prior written
consent of Lessor, which consent shall not be unreasonably withheld. Should
Lessor consent to such assignment of this Lease, or to a sublease, Lessee shall
guarantee payment of all rent herein reserved until the expiration of the term
hereof and no failure of Lessor to promptly collect from any assignee or
sublessee shall release or relieve Lessee from its guaranty or obligation of
payment of such rents, provided that the Lessor shall have a duty to mitigate
damages. The consent by Lessor to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
attempted assignment or subletting. Each assignment or subletting to which there
has
been consent by Lessor shall be by instrument in writing, in form satisfactory
to Lessor, and shall be executed by the Lessee and assignee or sublease, and the
assignee or sublease shall agree in writing for the benefit of Lessor to assume,
and be bound by, and perform the terms, covenants and conditions of this Lease.
An executed copy of such written instrument shall be delivered to Lessor. Upon
any assignment, the term "Lessee" as used in this Lease shall thereafter refer
to both the assignor and the assignee.
(8) LESSOR'S COVENANTS. Lessor covenants and agrees as follows:
a. To warrant and defend Lessee in the enjoyment and peaceful
possession of the premises during the aforesaid term.
b. To maintain the exterior walls (including storefronts, glass,
plate glass, doors and painting) in good structural repair, to keep the roof of
the building watertight, and to maintain all plumbing and sprinkler systems in
or about the premises. Lessor shall not be liable for or required to make any
repairs, or perform any maintenance, to or upon the premises which are required
by, related to or which arise out of negligence, fault, misfeasance or
malfeasance of any by Lessee, its employees, agent, invitees, licensees or
customers, in which event Lessee shall be solely responsible therefor; and if
such repairs are undertaken by Lessor, it shall be solely at the expense of
Lessee and Lessee shall pay said reasonable amounts within 30 days of receipt of
billing therefor.
c. If the premises are destroyed or so damaged by fire, casualty, or
other disaster that they become untenantable, Lessor will have the right to
render the premises tenantable by repairs within 90 days from the date of damage
with reasonable additional time, if necessary, for Lessor to adjust the loss
with insurance companies insuring the premises, or for any other delay
occasioned by conditions beyond the control of Lessor. Id the premises are not
rendered tenantable within that time, either party will have the right to
terminate this lease by written notice to the other. In the event of such
termination, the rent shall be paid only to the date of the damage. If the lease
is not terminated, rent nevertheless shall be abated during the period of time
from the date of damage to date of physical occupancy by Lessee or date of
complete restoration, whichever occurs first.
x. Xxxxxx will not rent any space in the Office Building to any
competing firms without
Lessee's prior written consent.
9. DEFAULT IN PAYMENT OF RENT. If any rent required by this lease is not
paid when due, Lessor will have the option after five days written notice to
Lessee to:
a. Terminate this lease, resume possession of the property, and
recover immediately from Lessee the difference between the rent specified in the
lease and the fair rental value of the property for the remainder of the term,
reduced to present worth and after consideration for mitigation of damages; or
b. Resume possession and release or rent the property for the
remainder of the term for the account of Lessee and recover from Lessee at the
end of the term or at the time each payment of rent comes due under this lease,
whichever Lessor may choose, the difference between the rent specified in the
lease and the reasonable rent received on the releasing or renting.
10. DEFAULTS OTHER THAN RENT. If either Lessor or Lessee fails to perform
or breaches any agreement on this lease other than the agreement of Lessee to
pay rent, and this failure
or breach continues for ten days after a written notice specifying the required
performance has been given to the party failing to perform, (a) the party giving
notice may institute action in a court of competent jurisdiction to terminate
this lease or to complete performance of the agreement, and the losing party in
that litigation shall pay the prevailing party all expenses of the litigation,
including reasonable attorneys' fees or (b) Lessor or Lessee may, after 30 days
written notice to the other, comply therewith or correct any such breach, and
the costs of that compliance shall be payable on demand.
11. INSOLVENCY, BANKRUPTCY, ETC. OF LESSEE. If Lessee is declared insolvent
or adjudicated a bankrupt; if Lessee makes an assignment for the benefit of
creditors; if Lessee's leasehold interest is sold under execution or a trustee
in bankruptcy; or if a receiver is appointed for Lessee, Lessor, without
prejudice to its rights hereunder and at its option, may after reasonable notice
terminate this lease and retake possession of the premises.
12. ELECTION BY LESSOR NOT EXCLUSIVE. The exercise by Lessor of any right
or remedy to collect rent or enforce its rights under this lease will nor be a
waiver or preclude the exercise of any other right or remedy afforded Lessor by
this lease agreement or by statute or law. The failure of Lessor in one or more
instances to insist on strict performance or observations of one or more of the
covenants or conditions of this lease or to exercise any remedy, privilege, or
option conferred by this lease on or reserved to Lessor shall not operate or be
construed as a relinquishment on future waiver of the covenant or condition or
the right to enforce it or to exercise that privilege, option, or remedy, that
right shall continue in full force and effect. The receipt by Lessor of rent or
any other payment or part of payment required to be made by the Lessee shall not
act to waive any other additional rent or payment then due. Even with the
knowledge of the breach of any covenant or condition of this lease, receipt will
not operate as or be deemed to be a waiver of this breach, and no waiver by
Lessor of any of the provisions of this lease, or any of Lessor's rights,
remedies, privileges, or options under this lease, will be deemed to have been
made unless made by Lessor in writing.
No surrender of the premises for the remainder of the terms of this
lease will be valid unless accepted by Lessor in writing. Lessee will not assign
nor sublet this lease without Lessor's prior written consent, which consent
shall not be unreasonably withheld. No assignment or sublease will relieve the
assignor or sub lessor of any obligation under this lease. Both assignee or
sublessee, by assuming such status, will become obligated to perform every
agreement of this lease to be performed by Lessee, except that a sublessee shall
be obligated to perform every agreements only insofar as they relate to the
subleased part of the property and the rent required by the sublease. Sublessee
will be obligated to pay rent directly to Lessor only after Sublessor's default
in payment and written demand from Lessor to Sublessee to pay rent directly to
Lessor.
13. SUBORDINATION; NON-DISTURBANCE; RIGHTS OF SECURITY INSTRUMENT HOLDER.
A. Subordination. All rights and interests of Lessee hereunder are
and shall be and remain subject, subordinate and inferior to all mortgages,
trust deeds, ground leases or security instruments (all of which shall be
referred to herein as "Security Instrument"), heretofore or hereafter given and
encumbering the premises, or any part thereof, and shall likewise be subordinate
and inferior to all renewals, modifications, consolidations, replacements and
extensions of any such Security Instrument, and the right of the holder of any
such Security Instrument shall at all times be and remain prior and superior to
all rights and interests of lessee. This provision shall operate as a
subordination agreement with respect to all such Security Instruments and all
renewals, modifications, consolidations, replacements and extensions thereof. If
the holder of any such Security instrument or any person, firm or corporation
agreeing to make a loan secured by a Security Instrument on the premises shall
require confirmation of any subordination for which provision is herein made or
a separate subordination agreement with respect to any transaction.
Lessee shall execute such confirmation, estoppel certificate or subordination
agreement in the form required by and limited to such Security Instrument holder
or other person, firm or corporation agreeing or proposing to make a loan
secured by a Security Instrument on the premises, and the execution of the same
shall not diminish or affect the liability of Lessee hereunder or any other
party responsible for or guaranteeing the obligations of Lessee under this
Lease. In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any Security Instrument, made by
Lessor covering the premises, Lessee shall attorn to the Security Instrument
Holder or purchaser upon any such foreclosure or sale and recognize such
purchaser as the Lessor under this Lease.
B. Non-Disclosure. Notwithstanding the provisions of subparagraph A
herein, provided that Lessee is current in payment of rent and is not otherwise
in default under the terms of this Lease, and upon attornment to Security
Instrument Holder, Lessee's rights to peaceful occupation and possession of the
premises will not be disturbed for its terms under this Lease.
C. Rights of Security Instrument Holder. In the event that a Security
Instrument Holder or third party should take title to the Office Building
through foreclosure or otherwise as a result of the default of Lessor, then in
that event the Security Instrument Holder or third party title holder shall not
i) be liable for a prior act or default of Lessor and will nor be subject to any
defense or offsets available to Lessee as against Lessor ii) be liable for any
construction obligations of Lessor, involving any expansion or rehabilitation of
existing improvements nor for renovations following a taking or occurrence of a
casualty; iii) be liable for any prepaid rent or deposits paid by Lessee except
to the extent same are actually received by Security Instrument Holder; iv) be
liable for any modification of the Lease after initial execution of the Lease
except where approved by Security Instrument Holder.
So long as the Office Building is subject to the lien of a Security
Instrument then this lease and Lessee's tenancy will remain in full force and
effect notwithstanding; i) and delay or omission by the Security Instrument
holder in exercising, or any waiver by the Security Instrument holder of, any
right or remedy under the mortgage or the nore which it secures ii) any
amendment of, or supplement to the note or mortgage which does not affect any
rights of Lessee under the lease; or iii) any bankruptcy, receivership,
consolidation, reorganization, dissolution, liquidation or similar proceeding
with respect to Lessor. Further, notwithstanding anything herein to the
contrary, this Lease shall remain in full force and effect and Lessee's
obligations hereunder shall not be modified, impaired, or diminished
notwithstanding the fact that the Security Instrument Holder may have acquired
title through a foreclosure or conveyance in lieu of foreclosure, provided only
that the Lessor (or the Security Instrument Holder as successor in interest to
the Lessor) is performing the obligations required of the Lessor hereunder.
D. Estoppel Letters. Lessee agrees to provide to Lessor, proposed
purchaser, any Security Instrument Holder, or third party taking title to the
office Building through foreclosure, within ten (10) days of their written
request to Lessee, an estoppel certificate certifying that this Lease is
unmodified and in full force and effect, or that the lease is in full force and
effect as modified, and
stating the modifications. Such estoppel certificate shall also state the amount
of monthly rent, the dates to which the rent has been paid in advance, the
amount of any security deposit or prepaid rent, and shall be in form reasonably
satisfactory to the requesting party hereunder.
14. ENVIRONMENTAL MATTERS.
A. Hazardous Substances. The term "Hazardous Substances" as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyl's (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and petroleum
products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
B. Lessee's Restrictions. Lessee shall not cause or permit to occur:
(i) Any violation of any federal, state, or local law,
ordinance, or regulation now or hereafter enacted, related to environmental
conditions on, under, or about the premises, or arising from Lessee's use or
occupancy of the premises, including, but not limited to, soil and ground water
conditions: or
(ii) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substance on,
under, or about the premises, or the transportation to or from the premises of
any Hazardous Substance, except as specifically disclosed in this lease.
C. Environmental Clean up.
(i) Lessee shall, at Lessee's own expense, comply with
all laws regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
(ii) Lessee shall, at Lessee's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities") under the Laws.
(iii) Should any Authority or any third party demand
that a cleanup plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances that occurs
during the term of this Lease, at or from the premises resulting from Lessee's
occupation of the premises, then Lessee shall, at Lessee's own expense, prepare
and submit the required plans and all related bonds and other financial
assurances; and Lessee shall carry out all such cleanup plans.
(iv) Lessee shall promptly provide all information
regarding the use, generation, storage, transportation, or disposal of Hazardous
Substances that is requested by Lessor. If Lessee fails to fulfill any duty
imposed under this paragraph within a reasonable time, Lessor may do so; and in
such case, Lessee shall cooperate with Lessor in order to prepare all documents
Lessor deems necessary or appropriate to determine the applicability of the laws
to the premises and Lessee's use thereof and for compliance therewith, and
Lessee shall execute all documents promptly upon Lessor's request. No such
action by Lessor and no attempt made by Lessor to mitigate damages under any law
shall constitute a waiver of any of Lessee's obligations under this paragraph.
(v) Lessee's Indemnity.
(a) Lessee shall indemnify, defend, and hold harmless Lessor, the
manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from all fines,
suits, procedures, claims and actions of every kind, and all costs associated
therewith (including attorneys' and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease, at or from the premises
which arises at any time from Lessee's use or occupancy of the premises, or from
Lessee's failure to provide all information, make all submissions, and take all
steps required by all authorities under the laws and all other environmental
laws.
(b) Lessee's obligations and liabilities under this paragraph shall
survive the expiration of this Lease.
15. RADON DISCLOSURE. Florida law requires the following statement in
connection with the lease of any building in Florida: "Radon Gas Radon 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".
16. ADDRESSES FOR PAYMENTS AND NOTICES. Rent payments and notices to Lessor
shall be mailed or delivered to the address set forth on the first page of this
lease, unless Lessor advises Lessee differently in writing.
Notices to Lessee may be mailed or delivered to the leased premises, and
proof of mailing or posting of those notices to the leased premises will be
deemed the equivalent of personal service on Lessee. All notices to either party
shall be sent by certified or registered mail, return receipt requested.
17. CAPTIONS. The captions and paragraphs or letters appearing in this
lease are inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or intent of the sections or articles of this
lease or affect this lease in any way.
18. FLORIDA LAWS. The laws of the State of Florida, as to both
interpretations and performance will govern this lease.
19. ENTIRE AGREEMENT. This lease sets forth all the promises, agreements,
conditions, and understandings between Lessor and Lessee relative to the lease
premises. There are no other promises, agreements, conditions, or
understandings, either oral or written, between them. No subsequent alternation,
amendment, change, or addition to this lease will be binding on Lessor or Lessee
unless in writing and signed by them and made a part of this lease by direct
reference.
20. TERMS INCLUSIVE. As used herein, the terms "Lessor" and "Lessee"
include the plural whenever the context requires or admits.
21. REPRESENTATIVES BOUND HEREBY. The terms of this lease will be binding
on the respective successors, representatives, and assigns of the parties.
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Lease
Agreement on June 2, 1999.
Signed in our presence as witnesses:
LESSEE
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------- --------------------------------------
Witness Xxxxxxxx Citrus Sales of Florida, Inc.
Xxxxx X. Xxxxxxxx, Xx., President
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------- --------------------------------------
Witness Xxxxxx X. Xxxxxxx
