EXHIBIT 10.7
THIS LEASE ("Lease"), dated as of February 1, 1998, by and between
Xxxxxx X. Xxxxxxx ("Landlord"), having an office at 0000 XX Xxxx Xxx, Xxxxxx,
Xxxxxxx and NuCo2 Inc. ("Tenant") having an office at 0000 X.X. Xxxxxxxxxxx,
Xxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS CONTAINED
HEREIN, the parties hereby agree as follows:
1. DEMISED PREMISES: Landlord hereby leases to Tenant and Tenant
hereby takes and leases from Landlord, upon the terms and conditions hereinafter
set out, the property located at 0000 XX Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx and all
improvements located thereon, including, without limitation, the building (the
"Building"), together with all the rights and appurtenances thereunto
appertaining, [including, without limitation, the parking area on the sides and
rear of the Building up to the adjoining street and property line, as
appropriate], hereinafter collectively referred to as the "Premises", [said
premises being more particularly described on Exhibit A1].
2. Intentionally Deleted.
3. TERM: The term (the "Term") hereof shall commence on February 1,
1998(the "Commencement Date") and expire on January 21, 2003 (the "Expiration
Date").
4. EXTENSION OPTION: Tenant shall have the right, at its option, to
extend the term of this Lease for an additional term of five years (the
"Extension Option"), commencing from and after the expiration of the original
term, upon the same terms and conditions as are herein set forth.
5. RENT: The rent (the "Rent") during the Term shall be $5,500.00
per month, due and payable on the first day of each month during the Term, made
payable to Landlord and delivered to Landlord at its address set forth above. If
the Commencement Date is not the first day of a calendar month, then the Rent
shall be prorated to the end of that calendar month.
6. SECURITY DEPOSIT: Tenant has this day deposited with Landlord the
sum of $0(the "Security Deposit") as security for the full and faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
upon Tenant's part to be performed, which said sum (with interest) shall be
returned to Tenant after the time fixed as the expiration of the Term, provided
Tenant has fully and faithfully carried out all of said terms, covenants and
conditions on Tenant's part to be performed.
7. USE: The Premises are for the use and occupation by Tenant as
office and warehouse space and all related uses. In connection therewith, NuCo2
Inc. intends to use the Premises for the storage, sale and distribution of
Carbon Dioxide products for the restaurant industry.
8. ASSIGNMENT AND SUBLETTING: Tenant shall not assign this Lease or
sublet any portion of the Premises without the prior written consent of
Landlord, which consent shall not be unreasonably delayed or withheld.
Notwithstanding anything in this Lease to the contrary, including, without
limitation, the immediately preceding sentence, (a) Tenant may assign or
sublease part or all of the Premises without Landlord's consent to: (i) any
corporation or partnership that controls, is controlled by, or is in common
control with, Tenant; or (ii) any corporation resulting from the merger or
consolidation with Tenant or to any entity that acquires all of Tenant's assets
as a going concern of the business that is being conducted on the Premises, as
long as the assignee or sublessee is a bona fide entity and assumes the
obligations of Tenant, and (b) Tenant may assign, mortgage, encumber, pledge or
otherwise transfer its interest in this Lease to a lender and/or in connection
with any financing transaction. Notwithstanding anything in this Lease to the
contrary, a transfer of control of shares of Tenant shall not be deemed an
assignment or sublease of this Lease.
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9. COMPLIANCE; QUIET ENJOYMENT; CONDITION: Landlord warrants and
represents that it is the fee simple title holder to the Premises. Landlord
further warrants and represents that it has full power and authority to lease
the Premises as herein provided. Landlord covenants and agrees with Tenant that
so long as Tenant keeps and performs all of the covenants and conditions on the
part of the Tenant to be kept and performed hereunder, Tenant shall have quiet,
undisturbed and continued possession of the Premises, 24 hours a day, 365 days a
year, free from any claims against Landlord and all persons claiming under, by
or through Landlord, during the Term and any renewal terms hereunder.
Landlord warrants and represents that on the
Commencement Date:
(a) all applicable laws, ordinances, regulations and
restrictive covenants permit the Premises to be used by
Tenant as described in Section 7 herein;
(b) the Premises will be in compliance with all
applicable laws, ordinances, rules and regulations of governmental authorities;
(c) the Premises shall be in broom clean condition;
(d) all utility services (including, without limitation,
natural gas, heat, light, power, three phase electrical
power, sewer service, telephone, and water) serving the
Premises are (1) sufficient for the Premises, (2) in
good working order, and (3) separately metered;
(e) the Premises are in good repair and the heating and
air conditioning units, the plumbing and electrical
systems as well as all mechanical systems, doors, locks
and windows are in good working order;
(f) the Taxes (as hereinafter defined) have been paid to
date;
(g) the Premises are free and clear of all mortgages,
liens, encumbrances, easements, restrictions, mortgages,
tenancies or right of any party to possess or occupy the
Premises; and
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(h) there are (A) no common area charges or charges of
similar import, (B) no merchant association or similar
type of charges, and (iii) no taxes, charges, costs,
fees, or expenses to be incurred by, or imposed upon,
the Tenant other than those set forth in this Lease.
10. MAINTENANCE, REPAIRS, ALTERATIONS: (a) Tenant shall keep the
Premises in good repair; provided however, Landlord shall be responsible for
maintaining, repairing and replacing, the roof, exterior walls, structural
foundations, heating, ventilation and air conditioning systems, and sewage and
plumbing systems. Tenant shall permit no waste, damage or intentional injury to
the Premises. Subject to the terms hereof, Tenant shall surrender the same, on
the Expiration Date, in as good condition as received, normal wear and tear
excepted.
(b) Except as may otherwise be provided herein, Tenant will make no
material alterations in or to the Demised Premises without the written consent
of Landlord, said consent not to be unreasonably withheld or delayed.
11. IMPROVEMENTS: Tenant shall be permitted to install a copper pipe
(the "Pipe") through a wall in the Premises leading to the outdoors, in order to
facilitate the delivery of carbon dioxide products to the Tenant. Tenant shall
remove said pipe and restore said portion of the wall upon vacating the
Premises. Except for the Pipe and the Work, no material improvement or material
alteration of the Premises shall be made without the prior written consent of
Landlord, which consent shall not be unreasonably delayed or withheld.
12. INDEMNIFICATION OF LANDLORD: Tenant will indemnify and save
harmless Landlord from any damages or loss by reason of any breach, violation or
non-performance of any condition hereof on the part of Tenant. Tenant will
indemnify, protect and save harmless Landlord herein, from any loss, cost,
damage, or expense caused by injuries to persons or property, while in, on or
about the Premises. Notwithstanding anything in the Lease to the contrary,
including, without limitation, the immediately preceding two sentences, Landlord
shall be liable, and Tenant shall not indemnify or hold harmless Landlord, for
injuries to persons or damage to property sustained by Tenant or other persons
where such injury and damage is the result of the failure of Landlord to comply
with Landlord's obligations under the Lease or the result of the gross
negligence or wilful misconduct of Landlord, its employees, invitees, customers,
contractors, servants, licensees or agents.
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13. ENTRY AND INSPECTION: Tenant shall permit Landlord or Landlord's
agents to enter upon the Premises at reasonable times and upon reasonable
notice, for the purpose of inspecting the same, and will permit Landlord, at
reasonable times and upon reasonable notice, within sixty (60) days prior to the
expiration of this Lease, to place upon the Premises a standard for "rent and/or
sale" sign, and permit persons desiring to lease or purchase the same to inspect
the Premises thereafter, at reasonable times and upon reasonable notice. In the
event of an emergency situation, Landlord shall be able to enter the Premises
without notice, but shall notify Tenant immediately thereafter if Tenant is not
in Premises upon Landlord's entry thereof.
14. NON-DISTURBANCE: If any mortgage, deed of trust or similar
security agreement (each such mortgage, deed of trust or security agreement
being hereinafter referred to as a "Mortgage") is placed on the Premises,
I.E.,becomes an encumbrance on the Premises, Landlord shall deliver a
non-disturbance agreement from the holder (the "Holder") of said Mortgage, said
non-disturbance agreement to provide that if no Event of Default exists under
this Lease, then, notwithstanding a default by Landlord under the Mortgage (a)
Tenant's possession of the Premises shall not be disturbed, and (b) the
obligations of Landlord (and its successors or assigns, including, without
limitation, the Holder) under this Lease shall remain unchanged.
15. TAXES: Tenant shall be required to pay(a) all real property
taxes, assessments or governmental charges levied or assessed against the
Premises and/or the Rent or any charges in lieu thereof; (b) any charge for
depreciation of the Building and any interest or other financing charge in
connection therewith; (c) any charge for Landlord's income, excise, profit,
franchise or any tax of similar nature that is or may be imposed in connection
with this Lease on Landlord or Tenant; (d) any sales tax of any nature relating
to this Lease imposed on Landlord or Tenant; and (e) any commercial rent tax or
other charges assessed against the Premises or in connection with this Lease
(items (a) - (e) being collectively referred to as the "Taxes").
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16. UTILITIES: Tenant shall be responsible for the payment of all
utilities, including water, gas, electricity and heat delivered to the Premises.
Notwithstanding anything herein to the contrary, Landlord shall be responsible
and shall pay for, if not already done, bringing ("hooking up") all utilities
and utility services to the Premises.
17. INSURANCE: Tenant shall maintain at Tenant's expense public
liability insurance covering the Premises and operations of Tenant having limits
of liability of not less than $500,000 bodily injury per occurrence plus
$1,000,000 property damage per occurrence, or a combined single limit of
liability not less than $500,000 per occurrence. Tenant may carry any or all of
such insurance under blanket policies.
To the maximum extent permitted by insurance policies
which may be owned by Landlord or Tenant, Tenant and Landlord, for the benefit
of each other, waive any and all rights of subrogation which might otherwise
exist.
18. SIGNS: Tenant shall not construct any projecting sign or awning
without prior written consent of Landlord, which consent shall not be
unreasonably delayed or withheld.
19. CONDEMNATION: If the Premises, or any part thereof, shall be
taken or condemned for public use, and said taking or condemnation would prevent
or materially interfere with the use of the Premises for the purposes then being
used, then, Tenant shall have the option to terminate this Lease and, if Tenant
exercises said option, the terms hereby granted and all rights and obligations
of Tenant hereunder shall immediately cease and terminate, except that the Rent
shall be adjusted as of the date of such termination of the Lease.
If this Lease is not terminated pursuant to the
immediately foregoing paragraph, this Lease shall continue in full force and
effect, but the Rent shall be adjusted as of the time of such taking to
equitably reflect the change in the size of the remaining property. In the event
of such taking, Landlord and Tenant shall each be entitled to receive and retain
such separate awards as may be allocated to their respective interest in any
condemnation proceeding.
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20. TRADE FIXTURES: Any and all improvements made to the Premises
during the term hereof shall belong to the Landlord, except trade fixtures of
the Tenant. Notwithstanding anything to the contrary in the Lease, including,
without limitation, the immediately preceding sentence, Tenant shall have the
right to remove its furniture, equipment, furnishing, trade fixtures, tangible
and intangible personal property at any time during, and after expiration of,
the Term at its sole discretion and none of the foregoing items shall ever be
deemed to be the property of Landlord, but Tenant shall repair or pay for all
repairs necessary for damages to the Premises occasioned by the foregoing
described removal. Furthermore, Landlord hereby waives any and all liens it has
or may hereinafter have on Tenant's furniture, equipment, furnishings, trade
fixtures, tangible and intangible personal property.
21. DESTRUCTION OF PREMISES: In the event of a destruction of the
Premises, or part thereof, during the term hereof, from any cause, Landlord
shall forthwith repair the same, provided that such repairs can be made within
sixty (60) days under existing governmental laws and regulations, but such
destruction shall not terminate this Lease, except that Tenant shall be entitled
to a proportionate reduction of Rent while such repairs are being made, based
upon the extent to which the said destruction and the making of such repairs
shall interfere with the business of Tenant on the Premises. If such repairs
cannot be made within said sixty (60) days, then this Lease may be terminated at
the option of either party. If (a) the repairs can be made within 60 days, and
(b) Landlord has undertaken said repairs, then, if said repairs are not complete
within said 60 days, Tenant may terminate this Lease.
22. INSOLVENCY: In the event a receiver is appointed to take over
the business of Tenant, or in the event Tenant makes a general assignment for
the benefit of creditors, or Tenant takes or suffers any action under any
solvency or bankruptcy act, and any of the same shall not be reversed or
dismissed within sixty days from the date thereof, then such event shall
constitute an Event of Default (as defined herein).
23. REMEDIES OF OWNER ON DEFAULT: In the event any material breach
of this Lease by Tenant is not cured within ten business days after Tenant
receives notice thereof from Landlord, such breach shall be an event of default
("Event of Default") and Landlord shall have the right to:
(a) annul and terminate this Lease, and thereupon re-enter and take
possession of the Premises; or
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(b) re-enter and re-let the Premises from time to time, as agents of
Tenant, and such re-entry and/or re-letting shall not discharge
Tenant from any liability or obligations hereunder, except that
rents collected as a result of such re-letting shall be a credit on
Tenant's liability for rents under the terms of this Lease.
Notwithstanding anything herein to the contrary, the failure of
Tenant to cure any material breach of this Lease within said ten
business days shall not be an Event of Default if such breach cannot
be cured within said ten business days and Tenant is diligently
pursuing the remedy of said breach.
24. Intentionally Deleted.
25. ATTORNEY'S FEES: In case suit should be brought for recovery of
the Premises, or for any sum due hereunder, or because of any act which may
arise out of the possession of the Premises, by either party, the prevailing
party shall be entitled to all costs incurred in connection with such action,
including a reasonable attorney's fee.
26. WAIVER: No failure of Landlord to enforce any term hereof shall
be deemed to be a waiver.
27. NOTICES: All notices, request, demands and other communications
which are required or may be given under this Lease shall be in writing and
shall be deemed to have been duly given when delivered (a) personally, (b) by
nationally recognized overnight courier, or (c) by registered or certified mail,
return receipt requested, postage prepaid, in any case, with receipt
acknowledged:
(a) If to Tenant to:
NuCo2 Inc.
0000 X.X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
(b) If to Landlord to:
Xxxxxx X. Xxxxxxx
0000 XX Xxxx Xxx
Xxxxxx, XX 00000
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or to any such other address as any party shall have specified by notice in
writing to the other in compliance with this Section.
28. HOLDING OVER: If Tenant continues to occupy the Premises after
the expiration of the Term or after a forfeiture, then Tenant shall continue as
a tenant under the terms of the Lease (except as to duration) from month to
month and each holding over thereafter shall in like manner create and cause a
similar extension of this Lease from month to month.
29. SUCCESSORS IN INTEREST: Every provision hereof applicable to
Landlord and every provision hereof applicable to Tenant shall also bind, apply
to and run in favor of "their respective successors in interest, heirs,
executors, administrators or personal representatives" as fully as if said
quoted words were inserted after the word "Landlord" and "Tenant" wherever they
appear herein, except that this provision shall not permit the assignment of the
Lease, or subleasing of the Premises except on the conditions here imposed.
30. ENVIRONMENTAL: Tenant shall have no obligation, liability or
responsibility with respect to any environmental liability pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, and the regulations promulgated thereunder and all other applicable
federal, state and local laws, rules and regulations, which results from the
business or operations of Landlord at the Premises on or prior to the date
hereof or after the expiration of this lease or which results from the acts or
omissions of anyone other than Tenant, Tenant's employees, agents or invitees.
31. RECORDING: Either party hereto may record a memorandum
evidencing the existence of this Lease, said memorandum to contain information
customary for memoranda evidencing similar leased premises in ______________.
Each party hereto agrees to timely execute such a memorandum if requested by the
other party.
32. COUNTERPART: This Lease may be executed in counterpart, each of
which shall be deemed an original and all of which, together, shall be deemed to
be the same instrument.
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33. RIDERS: All riders attached hereto are by reference made a part
hereof and any terms or conditions of such rider, in conflict or inconsistent
with this printed lease, shall supersede and control.
34. CAPTIONS: The captions in the margin of this Lease are for
convenience only and are not a part of this Lease and do not in any way limit or
amplify the terms and provisions of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed
this Lease as of the date first above set forth.
/S/ XXXXXX X. XXXXXXX
-------------------------------
, Landlord
NUCO2 INC., Tenant
By:/S/ XXXXXX XXXXXXX
----------------------
Name:
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