WAREHOUSE LEASE AGREEMENT
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THIS LEASE AGREEMENT is made and entered into as of this lst day of
February, 2000, by and between AMERICAN SALES INDUSTRIES, a Florida corporation,
whose address is 0000 Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 ("Lessor");
and XXXXXXXXXXXX.XXX, INC., a Florida corporation, whose address is 0000 Xxxxx
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Lessee").
W I T N E S S E T H :
1. Leased Property. Lessor, for and in consideration of the rent herein
reserved to be paid by Lessee, and in consideration of the covenants and
provisions herein contained to be kept and performed by Lessee, does hereby
lease, let and demise unto Lessee approximately 9,000 square feet of floor space
located at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000 (the
"Leased Premises"). Lessee hereby accepts possession of the Leased Premises in
their present AS IS CONDITION, and agrees Lessor has no duty to further alter or
change any portion of the Leased Premises except as may elsewhere in this Lease
be expressly set forth.
TO HAVE AND TO HOLD the Leased Premises, together with the rights and
appurtenances unto Lessee, subject to the following conditions and covenants.
2. Term. The term of this Lease shall commence on the lst day of February,
2000, and expire on the 3lst day of January, 2001 (the "Lease Term"), unless
this Lease is sooner terminated under the provisions of Paragraphs l5, l6 or l9
hereof.
3. Rent. The annual rent for the Leased Premises shall be $60,000.00,
representing a rental rate of $6.67 per square foot per year. Lessee agrees to
pay to Lessor at Lessor's office located at 0000 Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxx,
Xxxxxxx 00000, on the first day of each month $5,000 per month plus sales tax in
advance, which rent shall be applicable for the period commencing the lst day of
February, 2000, and ending on the 3lst day of January, 2001. In the event the
term of this lease commences on any other day other than the first day of the
month, then the first partial month's rent shall be paid on the day this lease
commences and shall be prorated using the number of days remaining in the month
divided by the number of days in that month. Thereafter, rent shall be due and
payable on the first day of each month without demand or notice. If such rent is
not paid on or prior to the sixth (6th) day of each month, Lessee shall pay a
late charge equal to two percent (2%) of the monthly payment plus sales tax.
4. Renewal Option. Provided that Lessee is not in default under the terms
of this Lease, Lessee is given an option to extend the term of this Lease for
one additional one year term, which option Lessee must exercise at least sixty
days prior to the termination this Lease by providing written notice to Lessor
of Lessee's decision to exercise such option. The annual rent for such
option exercised shall be $66,000, the other terms, covenants and conditions of
the renewal Lease, however, to be the same as those contained herein.
5. Assignment. Lessee shall not assign, transfer, mortgage, pledge or
hypothecate this Lease nor sublet, license, or permit the use or occupancy by
any third party of the Leased Premises or any part thereof without the prior
written consent of Lessor, and any attempt to do any of the foregoing without
Lessor's consent shall be void. Notwithstanding any such consent, Lessee shall
continue until the end of the term hereof to be obligated, jointly and severally
along with each approved assignee or sublessee (who shall automatically become
liable for all obligations of Lessee hereunder), to fulfill all of the terms,
covenants and conditions hereof, and Lessor shall be permitted to enforce the
provisions of this Lease directly against Lessee and/or any assignee or
sublessee without proceeding in any way against any other person. The consent by
Lessor to any assignment or sublease shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or sublease.
6. Use of Leased Premises. The Leased Premises are being leased for
Lessee's use as a receiving, warehousing and shipping facility, and Lessee
agrees to restrict the use of the Leased Premises to such use, and not to use,
or permit the use of, the Leased Premises for any other purpose without first
obtaining the written consent of Lessor. Lessee agrees that no hazardous trade
or occupation shall be conducted or permitted on the Leased Premises and no act
or omission to act shall be permitted which will increase the risk or hazard of
fire or damage. Lessee further agrees not to conduct any business that is
contrary to or in violation of Federal, State or Local laws, regulations or
ordinances. Lessee shall not use the Leased Premises for the manufacture,
storage or disposal of "hazardous substances" or "hazardous wastes," as such
terms are defined in Section 403.703, Florida Statutes, nor for any use or
purpose in violation of the Comprehensive Environmental Response, Compensation,
and Liability Act of l980, 42 U.S.C. Section 960l et. seq., or any other
applicable Federal or State law, statute or regulation. Lessee must provide
Lessor, immediately upon Lessee's receipt thereof, copies of all correspondence
from Federal or State environmental regulatory agencies relating to Lessee's
occupancy or use of the Leased Premises. In using the Leased Premises, Lessee
shall, at its own expense, comply with all applicable laws, regulations and
ordinances affecting the Leased Premises.
7. Signs. Lessee shall be permitted to erect, subject to the prior written
approval of Lessor, such signs in or about the Leased Premises as Lessee may
deem necessary or desirable. Lessor agrees to execute promptly such consents or
applications for permission to erect such signs as may be required by any
governmental authorities. Upon termination of this Lease, or upon Lessee's
departure from the Leased Premises, Lessee shall at its sole cost, expense and
liability remove all signs that it erected or had erected, and restore the
Leased Premises to its previous condition.
8. Alterations. Lessee, at its own expense, shall have the right, subject
to the prior written approval of Lessor, to make reasonable alterations to the
interior of the Leased Premises. Such alterations shall be made in a good and
workmanlike manner and in compliance with all legal and insurance requirements,
and shall in no respect act to diminish the fair market value of
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the Leased Premises. Any and all permanent alterations or improvements shall be
and become part and parcel of the Leased Premises and ownership shall be in
Lessor.
9. Liens. Lessor shall not be liable for any labor or materials furnished
to Lessee upon credit, and no mechanic's or other liens for any such labor or
materials shall attach to or affect the reversion or other estate, or interest
of Lessor in and to the Leased Premises. Whenever any mechanic's liens shall
have been filed against the Leased Premises, based upon any act or interest of
Lessee or of anyone claiming through Lessee or if any security agreement shall
have been filed for or affecting any materials, machinery or fixtures used in
the construction, repair or operation thereof or annexed thereto by Lessee,
Lessee shall immediately and within ten (l0) days thereafter take such action by
bonding, deposit or payment as will remove the lien or security agreement. If
Lessee has not removed the lien after notice to Lessee, Lessor may pay the
amount of such mechanic's lien or security agreement or discharge by deposit,
and the amount so paid or deposited, with interest thereon, shall be deemed
additional rent reserved under this Lease and shall be payable forthwith with
interest payable at the highest lawful rate from the date of such advance, and
with the same remedies available to Lessor as in the case of default in the
payment of rent as herein provided.
10. Maintenance, Repair and Inspection.
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(a) Lessee agrees to conduct proper maintenance and make all necessary
repairs and replacements to the interior of the Leased Premises, including but
not limited to, any electrical and plumbing systems, fixtures, air conditioning
systems, and heating systems. Lessee agrees to keep the exterior of the Leased
Premises free from all merchandise, boxes, furniture, equipment and other items
at all times. Lessor shall have the right to enter the Leased Premises during
all reasonable hours to examine the Leased Premises to make such repairs,
additions, alterations or replacements as may be deemed necessary for the
safety, comfort, or preservation thereof, and to inspect the Leased Premises for
potential environmental violations or infractions.
(b) Lessor agrees to maintain and repair sidewalks, curbs, and parking
areas adjoining the Leased Premises. However, Lessee shall repair at its sole
cost and expense any damage or destruction to any of the foregoing caused
directly or indirectly by Lessee, and its guests, employees, agents or invitees.
(c) Lessor may, upon an event of default pursuant to subparagraph l7(g)
hereof, or at such other times as Lessor deems reasonably necessary, at Lessee's
sole cost and expense, commission an environmental assessment of the Leased
Premises to determine the nature and extent of damages, actual or potential,
incurred in connection with the actual or possible violation of any applicable
Federal or State environmental law, statute or regulation.
11. Taxes.
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(a) Lessor shall be liable for all ad valorem taxes on the real property
leased hereunder and all improvements thereon, except as expressly provided
otherwise in subparagraph (b) below.
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(b) Lessee shall be liable for any taxes levied or assessed upon its stock
in trade or fixtures, and shall be liable for any special assessments levied or
assessed upon the Leased Premises.
(1) Lessee agrees to pay its proportionate share of all increases
in ad valorem real property taxes and general and special assessments ("real
property taxes") resulting from increased rate and/or valuation, levied and
assessed against the buildings, other improvements, and land of which the Leased
Premises are a part, for the base year, which is 2000. Lessee's proportionate
share of real property tax increases shall be the ratio of the increase that the
total number of square feet in the buildings and other improvements located on
the real property assessed on the tax xxxx, and of which the Leased Premises is
a part.
(2) Upon any increase in real property taxes, Lessor shall notify
Lessee of Lessor's calculation of Lessee's proportionate share of the real
property taxes and together with such notice shall furnish Lessee with a copy of
the tax xxxx, including the tax xxxx for the base year. Lessee shall reimburse
Lessor for Lessee's proportionate share of the increase in real property taxes
not later than twenty (20) days before the Palm Beach County, Florida, taxing
authority's delinquency date or ten (l0) days after Lessee's receipt of the tax
xxxx, whichever event is later.
12. Utilities. Lessee shall be responsible for obtaining at its own
expense water and sewer service, telephone, electric service and garbage
collection for the Leased Premises.
13. Insurance.
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(a) Lessor shall, during the term of this Lease, maintain and pay for
hazard insurance on the Leased Premises, except as expressly provided otherwise
in subparagraph (b) below.
(b) Lessee shall indemnify, protect and save harmless Lessor from and
against any and all claims, suits, actions, damages, liability or causes of
action arising during the term of this Lease for any personal injury, loss of
life, or damage to property incurred by or as a result of any act of negligence
of Lessee, or any of its agents, servants or employees, in, on or about the
Leased Premises, and shall at all time, at Lessee's own expense, protect Lessor
with public liability insurance and property damage insurance in a responsible
insurance company or companies authorized to do business in this State in such
form as may be reasonably satisfactory to Lessor, in amounts not less than seven
hundred fifty thousand ($750,000) in case of death or injury to one person and
not less than one million five hundred thousand Dollars ($1,500,000) in case of
death or injury to more than one person, or any one occurrence or incident. The
property damage insurance coverage required hereunder shall not be less than
seventy-five thousand Dollars ($75,000) in case of damage to property arising
out of one occurrence or incident. Lessee will, upon Lessor's request, furnish
evidence that such insurance is in full force and effect. Each insurance policy
shall carry an endorsement requiring that, before changing or canceling any
policy, the insurance company issuing the same shall provide Lessor at least ten
(l0) days prior written notice of such change or cancellation. Lessee agrees
that if such insurance policies are not kept in force during the entire term of
this Lease and any extension thereof, Lessor may
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procure the necessary insurance and pay the premium therefor, and that such
premium shall be repaid to Lessor as an additional rent installment for the
month following the date on which such premiums are paid.
14. Damage to Leased Premises. Partial or total destruction of the Leased
Premises shall not render this Lease void or voidable, nor terminate it except
as herein provided.
(a) If the Leased Premises are partially destroyed during the term of this
Lease, Lessor shall endeavor to repair the Leased Premises in conformity with
governmental laws and regulations within sixty (60) days of the partial
destruction.
(b) In the event of total loss or damage to the Leased Premises, Lessor
shall have the option of either (i) relocating Lessee to comparable warehouse
space in another building, or (ii) restoring the Leased Premises to their former
condition, in either event, the terms and conditions of this Lease shall remain
in full force and effect. If Lessor elects to restore the Leased Premises,
Lessor shall within ten (l0) days after the casualty, provide Lessee with
written notice of such intention to restore, and shall restore the Leased
Premises to its former condition within a reasonable time after such notice to
Lessee. If Lessor does not restore the Leased Premises to its former condition
within a reasonable time after Lessor's notice to Lessee, then Lessee may
terminate this Lease, and possession shall be immediately restored to Lessor and
Lessee thereafter shall be released from any further obligation under this
Lease.
15. Condemnation. If the Leased Premises, or any part thereof, is taken or
condemned for a public or quasi-public use, this Lease shall, as to the part so
taken, terminate as of the date title shall vest in the condemnor and rent
reserved shall xxxxx proportionately as to the part so taken or shall cease if
the entire premises be so taken. At Lessee's option, if a substantial portion of
the Leased Premises shall be taken, this Lease shall terminate.
16. Subordination and Estoppel. This Lease, and any and all rents,
options, liens and charges created hereby, are, and at all times shall be,
subject and subordinate to all present and future mortgages which may affect the
Leased Premises and to all recastings, renewals, modifications, consolidations,
replacements, and extensions of any such mortgage(s); provided, however, that so
long as Lessee faithfully discharges its obligations under the terms of this
Lease, its tenancy will not be disturbed.
(a) Lessee shall, upon demand, without cost to Lessor, execute any
statement or instrument necessary to effectuate such subordination. If Lessee ,
within fifteen (l5) days after submission of such instrument to Lessee for
execution, shall fail to execute the same, then Lessor is hereby authorized to
execute the same as attorney-in-fact for Lessee. The foregoing notwithstanding,
the subordination provided for herein shall be self-operative, and no further
instrument of subordination need be obtained to effect the same.
(b) If any mortgagee comes into possession or ownership of the Leased
Premises, whether by foreclosure or otherwise, Lessee shall attorn to such
mortgagee. Lessee shall not be
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entitled in any such case to a credit for any rent or other sums due hereunder
which has been paid for more than one month in advance.
(c) If any such mortgagee shall request reasonable modifications to this
Lease as a condition to disbursing any monies to be secured by such mortgagee's
mortgage, Lessee agrees that, within five (5) days after receipt by Lessee of
such request from such mortgagee, Lessee shall execute and deliver to such
mortgagee an agreement, in form and substance satisfactory to such mortgagee,
evidencing such modifications; provided that such modifications do not increase
Lessee's obligations under this Lease, or materially and adversely affect
either: (a) the leasehold interest created by this Lease, or (b) Lessee's use
and occupancy of the Leased Premises.
(d) Lessee also agrees to execute and return such instrument as Lessor or
any mortgagee of the Leases Premises may request, within seven (7) days after
receipt of such request, certifying whether the Lease is in full force and
effect, listing any modifications thereof, identifying the Leased Premises,
stating the term of the Lease together with any options, stating the current
annual fixed rent due under the Lease, and representing that Lessee has made no
assignment or sublease of the Lease. This statement, commonly known as an
estoppel certificate, is intended to be for the benefit of Lessor, any purchaser
from or mortgagee of Lessor, and any purchaser or assignee of Lessor's
mortgagee, and failure by Lessee to execute the same within the time period
provided herein shall constitute confirmation by Lessee that this Lease is in
full force and effect and unmodified, and that Lessee has no right to withhold
or deduct any rent thereunder.
17. Lessee's Default. Each of the following events shall constitute a
default hereunder by Lessee and a breach of this Lease.
(a) If Lessee shall fail to pay to Lessor any rent when due and payable
and shall not make such payment within fifteen (15) days thereafter.
(b) If Lessee or any successor or any assignee of Lessee while in
possession shall file a petition in bankruptcy, or if there commences under any
law relating to bankruptcy, insolvency, reorganization, or relief of debtors,
proceedings for the relief of Lessee or if Lessee shall be dissolved or shall
make an assignment for the benefit of creditors, and if any such petition or
proceedings hereinabove described is not dismissed or withdrawn within thirty
(30) days after the filing of the entry into the same.
(c) If involuntary proceedings under any law relating to bankruptcy,
insolvency, reorganization, or relief of debtors, for the relief of Lessee or
for the dissolution of Lessee shall be instituted against Lessee or any
successor or assignee, or if a receiver or trustee shall be appointed of all or
substantially all of the property of Lessee or any successor or assignee and if
such proceedings are not dismissed or withdrawn within thirty (30) days of the
filing of or entry into the same.
(d) If Lessee shall violate or fail to perform any of the conditions on
Lessee's part to be performed pursuant to this Lease and if such violation or
nonperformance shall continue for a period of ten (l0) days after written notice
thereof by Lessor or Lessee, or, if such performance
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cannot be fulfilled reasonably within such ten (l0) day period, Lessee shall not
in good faith have commenced such performance within such ten (l0) day period
and shall not diligently proceed therewith to completion.
(e) If Lessee shall vacate or abandon the Premises for a period of ten
(l0) days or more and if such vacation or abandonment continues for ten (l0)
additional days after written notice thereof by Lessor to Lessee.
(f) If this Lease or the interest of Lessee hereunder shall be transferred
or assigned in a manner other than herein permitted.
18. Lessor's Rights Upon Default. In the event of any default Lessor may
at its option:
(a) Terminate this Lease and re-enter upon the Leased Premises whereupon
the term hereby granted shall terminate, or, at Lessor's option, all right,
title and interest of Lessee in or under this Lease shall end and the Lessee
shall become a tenant at sufferance.
(b) Declare the entire rent for the remainder of the term following the
default due and payable forthwith and proceed to collect the same either by
distress or otherwise and thereupon said term shall terminate.
(c) Take possession of the Leased Premises and rent the same for the
account of Lessee.
(d) Lessor's exercise or failure to exercise of any of the collective
remedies stated herein shall not be deemed to constitute a waiver of Lessor's
rights with respect to any other collective remedies available to Lessor at law
or in equity. Lessor's waiver of breach of any one covenant or condition of this
Lease is not a waiver of breach of other covenants or conditions nor of a
subsequent breach of any condition waived. Lessor's acceptance of rent payments
after breach is not a waiver of the breach, except of breach of the covenant to
pay any rent when due, and Lessor's acceptance of rental payments past due shall
not be construed as a waiver or refusal to accept payments past due in the
future.
(e) In the event that legal action is necessary to enforce any of Lessor's
rights, Lessee hereby agrees to pay to Lessor reasonable attorney's fees
incurred by Lessor for services so rendered together with all costs, charges and
expenses of such legal action.
19. Additional Security. Lessee does hereby grant, assign, transfer and
set over unto Lessor all equipment, furniture, fixtures, goods, chattels, tools
and other property now owned or hereafter acquired by Lessee and placed in the
Leased Premises, as collateral security for the payment of the rent herein
reserved and for the performance of the covenants and conditions of this Lease
to be kept and performed by Lessee. Lessee does hereby covenant and agree that
said lien may be enforced by distress, foreclosure or other proceedings at the
option of Lessor. Lessee further covenants and agrees that should Lessor be
required to enforce this or any other provision of this Lease, Lessee will pay
all costs thereby incurred, including a reasonable attorney's fee.
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20. Termination. Upon the expiration or earlier termination of the term
hereof, or any extensions thereof, Lessee covenants to surrender and yield up
peacefully and quietly to Lessor, possession of the Leased Premises in as good
condition as they were at the time of delivery of possession as herein provided,
reasonable wear and tear and damages by fire or the elements excepted. Lessee
may remove its trade fixtures, equipment and other items of personal property
which it may have stored or installed in the Leased Premises, provided, however,
that fixtures or equipment connected directly to the plumbing or electrical
systems in the Leased Premises shall be property of Lessor and may not be
removed without Lessor's consent. Lessee shall repair any damage to the Leased
Premises which was caused by such removal, and restore to original condition.
21. Lessor's Covenants. Lessor covenants that at all times during which
Lessee is not in default under the terms of this Lease, Lessee's quiet and
peaceful enjoyment of the Leased Premises shall not be disturbed by anyone
claiming under or through Lessor.
22. Miscellaneous.
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(a) Notice. All notices to the parties shall be sent by hand delivery or
United States mail, addressed to the parties at their addresses as listed on
page l hereof.
(b) Entire Agreement. It is agreed that this Lease contains the entire
agreement between the parties and no rights are to be conferred upon Lessor
until this Lease has been executed by Lessee.
(c) Captions. The captions contained herein are for convenience and
reference only and shall not necessarily be deemed as part of this Lease or
construed as in any manner limiting, amplifying, or altering the terms and
provisions of this Lease to which they relate.
(d) Successors and Assigns. This contract shall bind Lessor and its
assigns or successors, and the assigns, administrators, legal representatives,
executors or successors, as the case, may be of Lessee.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written.
LESSEE:
XXXXXXXXXXXX.XXX, INC.
/s/ Xxxxx X. Xxxxxxxxx
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By: Xxxxx Xxxxxxxxx
Its President
LESSOR:
AMERICAN SALES INDUSTRIES
/s/ Xxx Xxxxxxxx
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By: Xxx Xxxxxxxx
Its President
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