Exhibit 10.25
LEASE AGREEMENT
by and between
XXXXXXX PROPERTIES, LLC
and
EACO CORPORATION
Dated: December 30, 2004
301 E. International Speedway Blvd.
Deland, Volusia County, Florida
LEASE AGREEMENT
This Lease Agreement (this "Lease") is made this 30th day of
December, 2004 ("Effective Date") by and between XXXXXXX
PROPERTIES, LLC, an Iowa limited liability company ("Landlord"),
whose address for purposes hereof is 000 XX Xxxxxx, Xxxxx 0-X,
Xxxxxx, XX 00000, and EACO CORPORATION ("Tenant"), whose address
for purposes hereof is 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx,
Xxxxxxx 00000.
1. Description of Premises. Landlord leases to Tenant
that certain parcel of land located at 000 X. Xxxxxxxxxxxxx
Xxxxxxxx Xxxx., Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx, 00000, together
with all improvements located thereon, and together with the
Landlord's right to use certain adjacent lands for vehicular
parking, said land and parking rights being more particularly
described in Exhibit "A" attached hereto (the "Premises").
2. Lease Term. The term of this Lease shall be for a
period of twenty (20) years (the "Term") or until such Term
shall sooner cease and expire as hereinafter provided. The Term
shall commence on December 30, 2004 (the "Commencement Date")
and shall expire at midnight on the date which is twenty (20)
years after the Commencement Date. If, for any reason, Tenant
discontinues the use of the Premises for the purposes rented or
any purpose, Tenant shall still remain liable for the
performance of the terms of this Lease and the payment of the
rental hereunder.
3. Use. The Premises may be used for the operation of a
restaurant offering seated dining and uses ancillary thereto,
and for no other purposes without Landlord's written consent,
which consent shall not be unreasonably, withheld, conditioned
or delayed.
4. Rent. The "Rent Commencement Date" shall be the
Commencement Date. Subject to adjustments as set forth herein,
Tenant agrees to pay, as base annual rent for the use of the
Leased Premises, each year during the first year of the term
hereof, the sum of $260,000.00 ("Rent" or "Base Rent"), plus
applicable sales tax, which shall be payable in twelve (12)
equal monthly installments of $21,666.67 as set forth on the
Rent Schedule attached hereto as Exhibit B; annual rental and
monthly installments shall be increased per paragraph 5 below.
All payments due under this Lease shall be paid monthly in
advance on or before the first (1st) day of each month (the "Due
Date") without reduction, abatement or set-off (except when and
as specifically provided herein), and shall be mailed or
delivered to Landlord's office at the address above (or at such
other address for the payment of rent that Landlord may give
notice of to Tenant). Any payment due and not paid within five
(5) days of the Due Date shall bear interest retroactive from
the Due Date at a rate of twelve percent (12%) per annum until
paid. In addition, the Tenant shall pay Landlord a late payment
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penalty in an amount equal to five percent (5%) of the
delinquent payment. If the Rent Commencement Date is other than
the first day of a calendar month, the rent for the portion of
said month shall be prorated at a daily rate based upon the base
monthly rent, and shall be payable on the Rent Commencement
Date.
5. Rent Escalation. The annual Rent to be paid to
Landlord by Tenant shall be increased as described in Exhibit B.
6. Services. Tenant shall pay before delinquency, at its
sole cost and expense, all charges for water, gas, heat,
electricity, power, telephone service, sewer service charges,
and sewer rentals charged or attributable to the Premises, and
all other services or utilities used in, upon, or about the
Premises by Tenant or any of its subtenants, licensees, or
concessionaires from the Commencement Date and throughout the
lease term hereof.
7. Care and Maintenance of Premises, Access. Tenant
shall be solely responsible for the maintenance, repair, and
replacement of the Premises throughout the term of this Lease,
including, but not limited to, the maintenance, repair, and
replacement of all improvements located on the Premises,
including the roof and structural components thereof, all
plumbing, electrical, heating, ventilation and air conditioning
systems therein, and all other improvements to the Premises,
such as the asphalt paving and concrete curbing of the parking
areas and driveways, and the landscaping located on the
Premises. All of the improvements upon the Premises shall be
maintained in substantially the same condition throughout the
lease term as existed on the Effective Date of this Lease,
ordinary wear and tear excepted. Landlord shall have no
responsibility whatsoever for any maintenance, repair,
replacement of the Premises or any improvements located thereon
unless such is made necessary due to the gross negligence or
willful act of the Landlord.
Tenant agrees to observe and comply with all laws,
ordinances, rules and regulations of the Federal, State, County,
Municipal authorities and regulations of the Board of Fire
Underwriters applicable to the Premises and to the business to
be conducted by Tenant in the Premises.
The Landlord shall at all reasonable times have access to
the Premises for the purposes of examining the same, or for the
purpose of showing the Premises to prospective purchasers or
lessees; and for a period of at least twelve (12) months prior
to the expiration of the Lease or any renewal thereof, shall
have the right to post a sign on the front of the Premises
offering the same "To Let" or "For Sale", which said sign the
Tenant shall permit to remain without molestation.
8. Signage
(a) Signs. Landlord and Tenant agree that
throughout the Term and any Renewal Terms of this Lease, Tenant
and its permitted subtenants, and assignees may erect, maintain,
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repair and replace any and all signs which the Tenant and its
permitted subtenants, and assignees may desire from time-to-time
on the Premises including, without limitation, building, pylon
and monument signs, so long as (i) such signs comply in all
respects and at all times with applicable codes, ordinances,
laws and statutes concerning the same, and (ii) the Tenant and
its permitted subtenants, and assignees has at its expense
obtained all necessary governmental licenses, permits, and
approvals for such signs. All such signs shall be maintained in
good condition and repair at all times.
9. Renewal Option. Provided Tenant has not been in
material default hereunder beyond applicable cure periods, this
Lease may be renewed by Tenant for up to two (2) successive,
five (5) year terms (the "Renewal Term(s)"), if Tenant shall
give written notice of renewal to Landlord at least twelve (12)
months prior to the end of the then-current term. Each Renewal
Term shall be subject to the same terms and conditions as the
initial Term, except that Tenant shall pay to Landlord the Base
Rent provided for in Exhibit "B" of this Lease.
10. Sublease and Assignment. Tenant shall not have the
right to assign this Lease and/or sublease all or any portion of
the Premises without Landlord's prior written consent, such
consent not to be unreasonably conditioned, delayed, or
withheld. Concurrently with any request for Landlord's consent
Tenant shall pay to Landlord the sum of $750.00 for Landlord's
review and processing of such request, and Landlord shall not be
obligated to review such request prior to its receipt of the
foregoing fee. Notwithstanding the foregoing, however, a change
in the ownership or control of the Tenant shall not be deemed an
assignment of this Lease for the purposes of this paragraph. In
addition, in the event the Tenant elects to sell fifty percent
(50%) or more of its assets, it shall have the right to assign
this Lease in connection with such sale without the consent of
the Landlord. Further, Landlord agrees to consent to Tenant's
assignment of this Lease in the event (i) the proposed new
tenant is financially as strong or stronger than Tenant, as
determined in Landlord's reasonably exercised discretion, and
(ii) Landlord is reasonably satisfied with the good business
reputation of such proposed new tenant. In the event of a
permitted subletting or an assignment of this Lease, Tenant
shall not be released from liability hereunder. Consent by
Landlord to an assignment or subletting shall not be deemed
consent to any further assignment or subletting; the
restrictions set forth in this paragraph 10 shall apply to any
assignee or sublessee of Tenant.
11. Alterations by Tenant. All additions, alterations,
improvements and fixtures (except Tenant's movable trade fixtures
and signage) in or upon the Premises, whether placed
there by Tenant or by Landlord, shall become Landlord's property
and shall remain upon the Premises at the termination of this
Lease by lapse of time, or otherwise, without compensation or
allowance or credit to Tenant. After the Commencement Date,
Tenant shall not make additions, changes, alterations or
improvements to the Premises costing more than $150,000.00 in
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the aggregate, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or
delayed. Even if Landlord's consent is not required, Tenant
shall give Landlord prior written notice specifying any work to
be done. If Landlord grants its consent, Landlord may impose
reasonable requirements as a condition of such consent including
without limitation the submission of plans and specifications
for Landlord's prior written approval, obtaining necessary
permits, obtaining insurance, prior approval of contractor (not
to be unreasonably withheld) and reasonable requirements as to
the manner and times in which such work shall be done. All work
shall be performed in a good and workmanlike manner and shall
be in accordance with plans and specifications, (approved by
Landlord if approval is required by the above provisions) and
shall be made in accordance with all applicable laws,
ordinances, and codes. If any of such work may affect the
structure of the Building or interfere with Building systems or
operation, Landlord may require that such work be performed
under Landlord's supervision (but at no additional cost to
Tenant for such supervision). Notwithstanding the foregoing,
upon expiration of the Term or earlier termination of the Lease,
Tenant may remove all of its personal property, furniture and
trade fixtures from the Premises, repair any damage caused to
the Premises by such removal. Such repairs shall be done in a
good and xxxxxxx like manner consistent with all applicable
laws, rules and regulations. Tenant shall make such alterations
to the Premises to keep same in compliance with all applicable
laws, rules and regulations, including, without limitation, the
Americans With Disabilities Act. In the event that any
governmental authority directs any modification or alteration to
the Premises as the result of Tenant's occupancy, Tenant shall
pay for the cost of such modification or alteration.
12. Construction Lien. In no event shall Tenant have the
right or authority to create, or permit there to be established,
any contractor's, mechanic's, materialmen's or other lien or
encumbrance of any nature against Landlord's interest in the
Premises or the Building for improvements made or caused to be
performed by and at the request of Tenant. Any lien filed by
any contractor, materialman or supplier performing work
requested by and for Tenant shall attach only to Tenant's
interest in the Premises for work claimed to have been furnished
for Tenant. Tenant shall, within 20 business days after Tenant
receives notice of the filing of any lien for such work, duly
discharge the lien or contest such lien by posting a bond equal
to the amount of the disputed claim with companies reasonably
satisfactory to Landlord. In the event that such lien is not
released and removed or bonded within 20 business days after
Tenant has received notice thereof, Landlord, at its sole
option, may take all action necessary to release and remove or
bond such lien (without any duty to investigate the validity
thereof) and Tenant shall promptly upon notice reimburse
Landlord for all reasonable sums, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection
with such lien.
13. Hazardous Substances. Tenant shall not bring upon or
permit to be brought upon the Premises any Hazardous Substances,
except normal office supplies. Tenant shall not use the
Premises for the manufacture, storage, disposal or handling of
any Hazardous Substances, and Tenant shall indemnify and hold
harmless Landlord from and against any and all loss, claim,
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damages, liability, cost or expense, including reasonable
attorney's fees actually incurred at customary hourly rates,
court costs and remediation costs and expenses incurred by
Landlord arising from or relating to (i) Tenant's violation of
the terms of this paragraph, and (ii) any other environmental
contamination of the Premises, including, without limitation,
the costs of remediation. The indemnification described herein
shall survive the expiration or other termination of Tenant's
leasehold interest in the Premises.
Tenant further agrees at all times during the term hereof,
and upon the termination of the terms hereof, Tenant shall
comply with all applicable environmental protection laws, rules
or requirements, and shall promptly cure all violations thereof
arising from its non-compliance, including but not limited to
the preparation, delivery and/or filing with the applicable
governmental authorities and with the Landlord, of all forms,
certificates, notices, documents, plans and other writings, and
the furnishing of such other information as may be required or
requested by the Landlord, its mortgagee or any applicable
governmental authority in connection with the sale, lease,
transfer, mortgaging or other disposition of the building and/or
lands. It is specifically acknowledged and agreed that the
provisions of this paragraph shall survive the termination of
this Lease, regardless of the reason or cause thereof.
14. Quiet Enjoyment. Landlord covenants and agrees,
provided Tenant pays all Rent and performs the terms and
conditions of this Lease as and when required, to take all
necessary steps to secure to Tenant and to maintain for the
benefit of Tenant the quiet and peaceful possession and
enjoyment of the Premises and all rights appurtenant thereto,
for the term hereof, without disturbance, hindrance or
molestation by Landlord or any other person claiming title to
the Premises or any part thereof by through or under Landlord,
and Landlord warrants and forever agrees to defend Tenant's
interest under this Lease against the claims of any and all
persons claiming title to the Premises or any part thereof by
through or under Landlord.
15. Insurance. At all times during the Term of this
Lease and any renewals thereof Tenant shall obtain and
thereafter keep in full force and effect:
(i) commercial general liability insurance, such
insurance to insure against liability for bodily
injury and death and for property damage in an amount
not less than $2,000,000 combined single limit on a
per occurrence basis; further Tenant shall also
maintain at all times during this lease an umbrella
insurance policy in an amount not less than
$10,000,000.
(ii) workmen's compensation as required by law
providing statutory benefits for all persons employed
by Tenant in connection with the Premises,
(iii) builder's risk insurance during all periods in
which Tenant is constructing alterations or additions
to or within the Premises, in reasonable amounts, and
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(iv) casualty and windstorm insurance coverage on the
improvements located on the Premises for the full
replacement cost thereof, and with a deductible of not
more than $10,000.00 (for windstorm deductible of 3%
of insured value, if available, or next lowest
available deductible). All insurance that Tenant shall
be required to effect pursuant to this provision shall
be underwritten by insurance companies that are
licensed or authorized to do business in and shall be
in good standing with the State of Florida and rated A
or better by AM Best and Company or its equivalent.
All insurance contracts that Tenant is required to
maintain under this Lease shall be issued for terms of
not less than one year and shall contain a provision
that they shall not be subject to cancellation, non-
renewal or material reduction in coverage as to the
Premises unless Landlord shall be served with a written
notice not later than 30 days prior to cancellation,
non-renewal or material reduction in coverage; for
purposes of the foregoing, "material reduction in
coverage" shall mean change from "all-risk" casualty
insurance coverage, or a material increase in
deductible.
16. Indemnification/Hold Harmless. Landlord, its
partners, representatives, agents, and their respective officers
and employees, shall not be liable to Tenant, or to Tenant's
officers, directors, shareholders, agents, servants, employees,
customers or invitees, for any damage to person or property in
or about the Premises caused by any act, omission or neglect of
Tenant and its agents and their respective officers, directors,
shareholders, and employees, and Tenant agrees to indemnify and
hold harmless Landlord from all claims for any such damage.
Tenant and its agents and their respective officers, directors
and shareholders and employees shall not be liable to Landlord
or to Landlord's partners, representatives, agents, servants,
customers, or invitees and their respective officers and
employees for any damage to person or property caused by any
act, omission or neglect of Landlord, its partners,
representatives and agents and their respective officers and
employees and Landlord agrees to indemnify and hold harmless
Tenant from all claims for any such damage.
The Tenant further covenants and agrees with the Landlord
that during the term of this Lease and for such other times as
the Tenant shall hold or have access to the Premises, that, (a)
the Landlord and its affiliates shall not be liable to the
Tenant or to any other person for any claim, injury, loss or
damage to any person or property on or about the Premises, and
(b) the Tenant will save the Landlord harmless and indemnified
from and against such claim, injury, loss or damage (including
defense costs).
17. Damage By Fire Or Other Casualty .
(a) Damage. If fire or other casualty insurable
under a standard fire and extended risk policy of insurance
required to be carried by Tenant covering the Premises shall
render the whole or any material portion of the Premises
untenantable, and if the Premises can reasonably be expected to
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be reparable within one hundred eighty (180) days from the date
of such event, then Tenant shall repair and restore the Premises
to their condition prior to the fire or other casualty within
such one hundred eighty (180) day period (subject to delays for
causes beyond Tenant's reasonable control such as delays due to
issuance of building permits or obtaining of insurance proceeds
provided Tenant diligently pursues the same) and notify Landlord
in writing that it will be doing so, such notice to be mailed
within thirty (30) days from the date of such damage or
destruction, and this Lease shall remain in full force and
effect, but the Minimum Rent, Additional Rent and other costs
for the period during which the Premises are untenantable shall
not be abated. At all times during the term of this Lease,
Tenant shall carry business interruption insurance.
(b) Repair and Restore. Tenant shall repair and
restore the Premises as the case may be to its condition prior
to the damage or destruction within that time period reasonably
necessary for such repair and restoration (subject to delays for
causes beyond Tenant's reasonable control such as delays due to
issuance of building permits or obtaining of insurance proceeds
provided Tenant diligently pursues the same) and the Minimum
Rent, Additional Rent and other costs shall not be abated during
the period of such restoration and/or repair.
18. Condemnation .
(a) Total Taking. If all the Premises are taken by
the power of eminent domain exercised by any governmental or
quasi-governmental authority, this Lease shall terminate as of
the earlier of:
(i) the date Tenant is required to vacate the
Premises, or
(ii) the date title passes to the condemning
authority, and upon either such date of
termination, all Minimum Rent, Additional Rent,
and other costs due hereunder shall be paid to
that date. The term "eminent domain" shall
include the taking or damaging of property by,
through, or under any governmental or quasi-
governmental authority, and any purchase or
acquisition in lieu thereof, whether or not the
damaging or taking is by the government or any
other person.
(b) Partial Taking. Tenant may terminate this Lease
for any of the events of Partial Taking set forth in
subparagraphs (i) through (vi), inclusive, below. Tenant must
give notice of its election to terminate within ninety (90) days
following receipt of the Notice of Taking issued by the
condemning authority, whereupon this Lease shall terminate upon
the earlier to occur of (i) the date Tenant is required to
vacate the Premises, or (ii) the date title passes to the
condemning authority, and upon either such date of termination,
all Minimum Rent, Additional Rent, and other costs due hereunder
shall be paid to that date.
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(i) If more than fifteen percent (15 %) of the
Rentable Square Feet of Floor Area of the
Premises shall be taken or appropriated;
(ii) The Premises, after the taking, would no
longer satisfy the requirements for a restaurant
offering seated dining (based on Tenant's
standard restaurant requirements in Tenant's
reasonable business judgment);
(iii) The access to the Premises is materially
adversely affected;
(iv) The visibility of the Premises is
materially adversely affected;
(v) The parking available to the Premises is
materially adversely affected, whether modified
or reduced; or
(vi) If Tenant's business will otherwise be
materially adversely affected.
(c) Damages. Landlord reserves all rights to the
entire damage award or payment for any taking by eminent domain.
Tenant shall, however, have the right to claim from the
condemning authority all compensation that may be recoverable by
Tenant on account of any loss incurred by Tenant, including, but
not limited to, loss due to removing Tenant's merchandise,
furniture, trade fixtures, and equipment or for damage to
Tenant's business, loss of business, and/or loss of leasehold
interest; provided, however, that Tenant may claim such damages
only if they are awarded separately in the eminent domain
proceeding and not as part of Landlord's damages.
19. Force Majeure. If either Landlord or Tenant is
delayed or prevented from completing the performance of any
obligation under this Lease by reason of accident, fire, act of
God, public enemy, injunction, riot, strike, lockout,
insurrection, war, court order, requisition or order of
governmental body or authority, inability to procure labor or
materials from normally available sources, or by any other cause
without its fault and beyond its reasonable control (financial
inability excepted), completion will be excused for the period
of such delay and the date for completion will be extended for
the period of such delay provided notice of the occurrence or
encountering of such cause is given to the other party within
10 days after such occurrence or encounter and notice of the
duration of such cause is given with 10 days after the cessation
of such cause.
20. Subordination/Non-Disturbance. Tenant agrees that
this Lease is subject and subordinate to all mortgages which may
now or hereafter affect or encumber all or any portion of the
Premises and to all renewals, modifications, consolidations,
replacements and extensions thereof; provided, however, that the
foregoing provision shall only be applicable with respect to
those mortgages to which Tenant has been provided a
Subordination, Non-Disturbance and Attornment Agreement
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substantially in the form attached as Exhibit C ("Non-
Disturbance Agreement"), or in such other from as may be
reasonably requested by Landlord's lender(s), providing
generally that the mortgagee or any purchaser at the foreclosure
of the mortgage will not disturb Tenant's possession of the
Premises and that Tenant will attorn to such mortgagee or
purchaser at foreclosure as Landlord under the terms and
conditions of this Lease upon receiving written notice that such
party has succeeded to the interest of Landlord under this
Lease. In confirmation of such subordination, Tenant shall join
with any such mortgagee and execute promptly (and, in any event,
within 15 days after receipt of a written request therefor) a
Non-Disturbance Agreement. Tenant's obligation to join with any
mortgagee in the execution of a Non-Disturbance Agreement shall
be applicable with respect to all present and future mortgages
to which Landlord requests Tenant's execution of a Non-
Disturbance Agreement.
21. Estoppel Certificate. Landlord and Tenant agree that
they will from time to time upon request from each other, within
15 business days after notice from the other, execute and
deliver to such persons as the requesting party shall request, a
statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the
same is in full force and effect as so modified), stating the
dates which rent and other charges payable under this Lease have
been paid, stating the commencement and termination dates of the
current term of the Lease and stating whatever options to extend
there may be in the Lease, stating that Landlord or Tenant, as
applicable, is not in default hereunder to the best of such
party's knowledge after due inquiry (or if Landlord or Tenant,
as applicable, have alleged a default, stating the nature of
such alleged default), and further stating such other matters
relating to the Lease as the requesting party shall reasonably
require.
22. Landlord Default. Landlord's failure to perform any
of its obligations under this Lease for a period of 15 days
after receiving notice from Tenant is a "Default." The notice
from Tenant shall give in reasonable detail the nature and
extent of the failure.
If Landlord commits a Default, Tenant, in addition to any
remedies available under the law, may, without being obligated
and without waiving the Default, cure the Default. Landlord
shall pay Tenant, upon demand, all costs, expenses, and
disbursements reasonably incurred by Tenant to cure the Default.
It is understood and agreed that Tenant's exercise of any
right or remedy to a default or breach by Landlord shall not be
deemed a waiver of or to alter, affect, or prejudice any right or
remedy which Tenant may have under this Lease or by law or in
equity. Neither the payment of rent nor any other act or omission
of Tenant at any time or times shall operate as a waiver of any
past or future violation, breach, or failure to keep or perform
any covenant, agreement, term, or condition hereof, or to deprive
Tenant of its available remedies, upon the written notice provided
for herein.
23. Tenant Default.
(a) It shall be a default ("Event of Default")
hereunder if:
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(i) Tenant shall fail to pay any rent or any
other sums of money within 5 days after receipt of
written notice that the same is due; provided,
however, Landlord shall not be obligated to give
Tenant written notice of nonpayment of rent more
than two (2) times in any twelve (12) month period.
(ii) Tenant shall fail to comply with any other
provision of this Lease and after receipt of
written notice, fail to correct any default within
30 days after written notice or if such compliance
cannot reasonably be corrected within such 30 day
period, then Tenant shall not be deemed in Default
if Tenant commences such cure within 20 days of
said written notice and diligently pursues same to
completion.
(iii) the Premises shall be taken on execution or
other process of law in any action against Tenant;
(iv) Tenant shall become insolvent or unable to pay
its debts as they become due, or Tenant notifies
Landlord in writing that it anticipates either
condition;
(v) Tenant takes any action, or notifies Landlord
in writing that Tenant intends, to file a petition
under any section or chapter of the Bankruptcy Code
as amended, or under any similar law or statute of
the United States or any State thereof; or a
petition shall be filed against Tenant under any
such statute which is not dismissed within 60 days
after the filing thereof; or
(vi) a receiver or trustee shall be appointed for
Tenant's leasehold interest in the Premises or for
all or a substantial part of the assets of Tenant
and not discharged within 60 days after the
appointment of a receiver or trustee.
(b) On the occurrence of any Event of Default and
after the applicable notice and cure period, and subject to terms
and conditions provided herein, Landlord may;
(i) without terminating this Lease and without
entering into possession of the Premises, continue
this Lease in effect and enforce all rights of
Landlord and obligations of Tenant hereunder,
including the filing of suit for the collection of
monthly rent, Operating Expenses, and all other
sums due hereunder as they accrue (including
attorneys' fees and other damages). Acts of
maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver upon
Landlord's initiative to protect its interest under
this Lease shall not constitute a termination of
this Lease or Tenant's right to possession
hereunder;
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(ii) re-enter and repossess the Premises subject
to notice to and the rights of the FDIC and any
other regulatory or governmental agency having
regulatory authority over Tenant and any and all
improvements thereon and additions thereto and
remove all persons and property therefrom either by
summary dispossess proceedings or by a suitable
action or proceeding at law or in equity, or by
force or otherwise, without being liable for any
damage therefor. No re-entry by Landlord shall be
deemed a termination or an acceptance of a
surrender of this Lease;
(iii) Terminate this Lease and xxx Tenant for
damages hereunder which damages shall be an amount
equal to:
(a) the sum of all amounts due hereunder to
the date of termination; plus
(b) the aggregate rent remaining over the
unexpired portion of the Term plus the
reasonable cost to Landlord for any repairs
and other costs of reletting, all reduced to
present value using a discount rate equal to
the interest rate of a governmental security
having a maturity closest to the then current
expiration of the Term; less
(c) the aggregate fair net rental value of
the Premises over the remaining portion of the
Term provided, however, a reasonable period of
time, not to exceed twelve (12) months, may be
considered as a leasing period by which the
Premises would not be leased and therefor no
income would be realized for such period
reduced to present value; plus
(d) Landlord's costs and expenses incurred in
the enforcement hereof including reasonable
attorneys fees as herein provided;
(iv) relet any or all of the Premises for Tenant's
account for any or all of the remainder of the Term
or for a period exceeding such remainder, in which
event Tenant shall pay to Landlord, at the times
and in the manner specified by the provisions
herein the rent accruing during such remainder,
less any rent received by Landlord, with respect to
such remainder, from such reletting, as well as the
cost to Landlord of any reasonable attorney's fees
actually incurred at customary hourly rates, or for
any repairs or cost of reletting or other action
(including those taken in exercising Landlord's
rights under any provision of this Lease ) taken by
Landlord on account of such Event of Default, but
in no event shall Landlord be liable in any respect
for failure to relet the Premises after good faith
efforts to do so or in the event of such reletting,
for failure to collect the rent thereunder. Any
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sums received by Landlord on a reletting in excess
of the rent reserved for this Lease shall belong to
Landlord;
(v) cure such Event of Default in any other
manner (after giving Tenant written notice of
Landlord's intention to do so except in the case of
emergency), in which event Tenant shall reimburse
Landlord for all expenses reasonably incurred by
Landlord in doing so (plus 10% of such expenses to
cover Landlord's administrative costs and expenses,
plus interest on all of the foregoing at the rate
of twelve percent (12%) per annum, which expenses
and interest shall be additional rent and shall be
payable by Tenant immediately on demand therefor by
Landlord; and/or
(vi) pursue any combination of such remedies
and/or any other remedy available to Landlord on
account of such Event of Default at law or in
equity.
If legal proceedings are instituted hereunder, and a
compromise or settlement thereof shall be made, it shall not be
constituted as a waiver of any subsequent breach of any covenant,
condition or agreement herein contained.
All such remedies of Landlord shall be cumulative, and in
addition, Landlord may pursue any other remedies that may be
permitted by law or in equity. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of
such default.
24. Holding Over. In the event of holding over by Tenant
without Landlord's written consent Tenant shall pay rent equal to
150% of the applicable rent plus other sums due from time to time
hereunder. Possession by Tenant after the expiration of this
Lease shall not be construed to extend its Term.
25. No Offer. The submission of this Lease by either party
to the other for review shall not be considered an offer to enter
into this Lease and such submission shall not bind either party in
any way until both Landlord and Tenant have each executed and
delivered duplicate originals of this Lease.
26. No Construction Against Drafting Party. Landlord and
Tenant acknowledge that each of them and their respective counsel
have had an opportunity to review this Lease and that this Lease
shall not be construed for or against either party merely because
such party prepared or drafted this Lease or any particular
provision thereof.
27. Severability. If any provision of this Lease or the
application thereof to any person or circumstance shall to any
extent be or become illegal, invalid or unenforceable, the
remaining provisions of this Lease, or the application of such
12
provision to other persons or circumstances, shall not be affected
thereby and each remaining provision of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
28. Time of the Essence. Except as otherwise expressly
provided herein, time is of the essence with respect to all
required acts of Tenant and Landlord and each provision of this
Lease.
29. Brokerage Commissions. Landlord and Tenant warrant and
represent that they have not dealt with any real estate broker or
salesman in connection with this Lease except Florida Growth
Realty, Inc., and Tenant shall be solely responsible for the
payment of any fees or commissions due. Landlord and Tenant
further represent they have dealt with no other person which would
create any liability for the payment of a commission by the other
party. The party who breaches this warranty shall defend, hold
harmless, and indemnify the non-breaching party from any claims or
liability arising from the breach.
30. Authority to Execute Lease. Tenant represents and
warrants that this Lease has been duly authorized, executed and
delivered by and on behalf of Tenant and constitutes the valid,
binding, and enforceable agreement of Tenant in accordance with
the terms hereof. Landlord represents and warrants that Landlord
is the owner of fee simple title to the property on which the
Premises is located, this Lease has been duly authorized, executed
and delivered by and on behalf of Tenant, and constitutes the
valid, binding and enforceable agreement of Landlord in accordance
with the terms hereof.
31. Notices. All notices, demands, consents and approvals
which may be or are required to be given by either party to the
other hereunder shall be in writing and shall be deemed to have
been fully given and received upon actual delivery (or refusal to
accept delivery) to the address of all parties designated to
receive notice as set forth below or to such other place as the
party to be notified may from time to time designate by at least
10 business days notice to the other parties. Notices, demands,
consents and approvals shall be deemed properly given only by: (a)
personal delivery; or (b) sent by Federal Express or other
nationally-recognized overnight delivery service; or (c) deposit
in the United States mail certified, return receipt requested with
postage prepaid. Until changed in the manner set forth above, the
addresses for notice are as follows:
If to Landlord: XXXXX XXXXXXX
000 XX Xxxxxx, Xxxxx 0-X
Xxxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
with copy to: Xxxxxxx & Xxxxxxx, P.A.
Attention: Xxxx X. Xxxxxxx, Esquire
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
13
If to Tenant: EACO CORPORATION
Attention: Xx. Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy to Xxxxxx & Lane, P.A.
Attention: Xxxxxx X. Xxxx, III, Esquire
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
32. Entire Agreement. This Lease contains the entire
agreement between the parties hereto with respect to its subject
matter and negotiations relating thereto, and supersedes all
previous letter agreements. This Lease may be amended only by
subsequent written agreement between the parties. Except for
those that are set forth in this Lease, no representations, prior
written or oral promises, warranties or agreements made by
Landlord or Tenant shall be applicable to this Lease.
33. Governing Law. This Lease shall be governed by and
shall be construed and interpreted in accordance with the laws of
the State of Florida.
34. Attorney's Fees/Collection Costs. In the event Tenant
or Landlord defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Lease or in
the event Landlord places the enforcement of this Lease for the
collection of any Rent due or to become due, or the recovery of
possession of the Premises in the hands of an attorney, or in the
event either party files suit against the other, with respect to
the enforcement of its rights under this Lease, Tenant and
Landlord agree that the prevailing party shall be entitled to be
reimbursed by the non-prevailing party for all reasonable
attorney's fees, expert witness fees, paralegal fees and court
costs incurred by the prevailing party. All costs charged to or
incurred by Landlord in the collection of any amounts owed
pursuant to this Lease, including reasonable attorney's fees and
court costs, shall be paid by Tenant; and, at the option of
Landlord, shall be deemed to be additional rent hereunder and
shall be due from Tenant to Landlord on the first day of the
following month.
35. Property Taxes and Assessments. Tenant shall pay on or
before when due all real property taxes and assessments or
governmental impositions in lieu thereof, be they special or
otherwise of every kind and nature (including without limitation,
14
assessments for public improvements or benefits whether or not
commenced during the term of this Lease), water, sewer and other
rents, rates and charges, excises, levies, license fees, permit
fees and other authorization fees, public dues and all other
charges (in each case whether general or special, ordinary or
extraordinary, or foreseen or unforeseen), of every character
(including all penalties or interest thereof, if incurred due
to Tenant's late payment), which at any time during or in respect
of the term of this Lease, accrue, may be assessed, levied,
confirmed, or imposed on or in respect of or be a lien upon, or
measured by the value or amount of (a) the Premises or any part
thereof, including any personal property, any rent therefrom or
any estate, right or interest therein, or (b) any occupancy, use
or possession of the Premises or any part thereof other than any
franchise, capital stock or similar tax of Landlord, or any income
or excess profit tax of Landlord or portion thereof determined on
the basis of its general income or revenues shall not be
considered real estate taxes ("Taxes"). If required by Landlord's
lender, or in the event Tenant fails to pay any Taxes when due,
Landlord reserves the right to have Tenant establish a tax escrow
with Landlord. In such event Tenant shall pay to Landlord
a monthly amount reasonably determined by Landlord to cover the
next tax xxxx. If at any time there is a shortfall in said
account Tenant shall pay such shortfall to Landlord within ten
(10) days of demand therefore. Taxes for any partial year of the
Lease term or any extension term shall be prorated.
36. Radon Gas. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient
quantities, may present health risk 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.
37. Confidentiality. Each party hereto agrees not to
disclose the economic terms of this Lease except as each party
respectively determines to be necessary for the conduct of its
business. Neither party shall issue any press releases pertaining
to this Lease or containing the economic terms of this Lease
without the prior written consent of the other party.
38. Number of Execution Copies. This Lease may be executed
in any number of counterparts, each of which shall be an original,
but all of which shall constitute one instrument.
39. Memorandum of Lease. Neither Landlord nor Tenant shall
permit, allow or cause this Lease, or any amendment hereto, to be
recorded in any public registry or office of register of deeds;
however, at the request of either party, Landlord and Tenant agree
to execute a recordable memorandum of this Lease setting forth the
names and addresses of the parties, a reference to the lease with
its date of execution, a specific legal description of the
Premises, the actual Commencement Date of the Lease, the term of
the Lease, any renewal Terms, which memorandum may be recorded by
Tenant at Tenant's expense or by Landlord at Landlord's expense in
the appropriate public records of the county or counties in which
the Premises is situated.
15
40. Waiver of the Right to Trial by Jury. Landlord and
Tenant hereby knowingly and intentionally waive the right to trial
by jury in any action or proceeding that Landlord or Tenant may
hereinafter institute against each other with respect to any
matter arising out of or related to this Lease or the Premises.
41. Covenant Against Withholding Rental. Notwithstanding
any other provisions contained in this Lease or any extensions,
modifications or renewals thereof, it is understood and agreed
that in the event of default in performance of any agreement,
condition, or other provisions to be performed by the Landlord, or
if for any other reason Tenant might be entitled to any
reimbursement from Landlord, in no event shall Tenant deduct or
withhold any such amount from rental payments due Landlord
pursuant to the rental provision of this Lease.
42. Monthly Rental Statements. The Landlord shall not be
required to send to Tenant monthly statements for rentals due or
to become due under the terms and conditions of this Lease.
However, past due reminders shall be considered notice under
paragraph 23.(a)(i) hereunder.
43. Partial Invalidity. If any term or provision of this
Lease or the application thereof to any party or circumstance
shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to
parties or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
44. Returned Checks. For a check sent in full or partial
payment of any amounts owed pursuant to this Lease, or any rider
thereto or modification thereof, which is not honored because of
insufficient funds, uncollected funds or any other reason, there
will be assessed a charge of $500.00 and all subsequent payments
shall be made by cash, bank draft, certified check or money order
if requested by Landlord.
45. Definition of and Liability of Landlord. The term
"Landlord" as used in this Lease means only the owner for the time
being of the Premises or the owner of a leasehold interest in the
Premises so that in the event of sale of the Premises or an
assignment of this Lease, or a demise of the Premises, Landlord
shall be and hereby is entirely freed and relieved of all
obligations of Landlord hereunder and it shall be deemed without
further agreement between the parties and such purchaser(s),
assignee(s) or lessee(s) that the purchaser, assignee or lessee
has assumed and agreed to observe and perform all obligations of
Landlord hereunder. It is specifically understood and agreed that
there shall be no personal liability of Landlord in respect to any
of the covenants, conditions or provisions of this Lease. In the
event of a breach or default by Landlord of any of its obligations
under this Lease, Tenant shall look solely to the equity of
16
Landlord in the Premises for the satisfaction of Tenant's
remedies.
46. Waiver of Covenant or Condition. The failure of
Landlord to insist upon strict performance of any of the covenants
or conditions of this Lease or to exercise any option herein
conferred in any one or more instances shall not be construed as a
waiver or relinquishment for the future of any such covenants,
conditions or options, but the same be and remain in full force
and effect.
47. Purchase Option. Provided Tenant has not been in
material default hereunder beyond applicable cure periods, and
subject to the further terms of this Agreement, Tenant shall have
an exclusive option to purchase the Premises. The purchase option
shall commence upon execution hereof, and shall expire thirty six
(36) months following the date of this Lease. In the event Tenant
desires to exercise such option to purchase, it shall provide
Landlord notice of such exercise not less than six (6) months
prior to the closing of such purchase (but in no event later than
thirty (30) months following the date of this Lease). If the
purchase takes place during the first twenty four (24) months of
this Lease, the purchase price shall be $2,773,333.33; if the
purchase takes place after the twenty fourth (24th) month, the
purchase price shall be $2,851,331.40. Closing of such purchase
shall occur at such time and place as may be mutually agreed by
Landlord and Tenant. All expenses of such purchase shall be
borne by Tenant; Tenant shall cooperate with Landlord, at no
additional expense to Tenant, in effectuating an IRC Section 1031
Exchange if Landlord so chooses. Conveyance of the Premises from
Landlord to Tenant pursuant to this Section 47 shall be by Special
Warranty Deed, free and clear of all liens and encumbrances by any
person or entity claiming through Landlord.
17
IN WITNESS WHEREOF, the parties hereto have duly executed
multiple counterparts of this Lease in their respective names by
their respective authorized representatives, effective as of the
date set forth above.
LANDLORD:
XXXXXXX PROPERTIES, LLC, an
Iowa limited liability company
_________________________ By:__________________________
XXXXX XXXXXXX, Manager
_________________________
TENANT:
EACO CORPORATION.
_________________________ By:___________________________
Xxxxxx X. Xxxxxxxxx
_________________________ Vice President
18
STATE OF IOWA
COUNTY OF ____________
The foregoing instrument was acknowledged before me this _____ day
of December, 2004, by XXXXX XXXXXXX, as manager of Xxxxxxx
Properties, LLC. He is personally known to me or has produced
____________ as identification.
Name:
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this _____ day
of December, 2004, by Xxxxxx X. Xxxxxxxxx as President, of EACO
CORPORATION, on behalf of the corporation. He is personally known
to me or has produced ____________ as identification.
Name:
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
19
EXHIBITS
Paragraph Exhibit
A Legal Description of Premises
B Rent Schedule
C Subordination, Non-Disturbance
and Attornment Agreement
20
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
(to be attached prior to execution)
from survey legal description
21
Exhibit B
Rent Schedule
(Initial Term)
Year Annually Monthly
---- ----------- ----------
1 $260,000.00 $22,666.67
2 $267,800.00 $22,316.67
3 $275,834.00 $22,986.17
4 $284,109.02 $23,675.75
5 $292,632.29 $24,386.02
6 $301,411.26 $25,117.60
7 $307,439.48 $25,619.96
8 $313,588.27 $26,132.36
9 $319,860.04 $26,655.00
10 $326,257.24 $27,188.10
11 $332,782.39 $27,731.87
12 $339,438.03 $28,286.50
13 $346,226.79 $28,852.23
14 $353.151.33 $29,429.28
15 $360,214.36 $30,017.86
16 $367,418.64 $30,618.22
17 $374,767.02 $31,230.58
18 $382,262.36 $31,855.20
19 $389,907.60 $32,492.30
20 $397,705.76 $33,142.15
(First Renewal Term)
21 $405,659.87 $33,804.99
22 $413,773.07 $34,481.09
23 $422,048.53 $35,170.71
24 $430,489.50 $35,874.13
25 $439,099.29 $36,591.61
(Second Renewal Term)
26 $447,881.28 $37,323.44
27 $456,838.97 $38,069.91
28 $465,975.68 $38,831.31
29 $475,295.19 $39,607.93
30 $484,801.10 $40,400.09
EXHIBIT C
STATE OF ____________
SUBORDINATION, NON-DISTURBANCE
COUNTY OF ___________ AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of ____________, ______, between
________ _______________, a ______________ ("Lender"), and EACO
CORPORATION ("Tenant").
Recitals:
1. Tenant is the lessee under the Lease Agreement dated
____________________,______, entered into by and between
___________________, a ___________________, as landlord
("Landlord"), and Tenant (as amended, the "Lease"), covering
certain land and improvements thereon or to be constructed thereon
(the "Premises") located in _______________________________, as
more particularly defined and described in the Lease; and
2. Lender has made or will make a loan to Landlord, who
is the owner of the Premises, in the principal amount of up to
$__________ (the "Loan") as evidenced by a note in said principal
amount (the "Note") and secured by a Mortgage or Deed of Trust and
an Assignment of Rents, Leases and Profits on the Premises, which
is further described on Exhibit A attached hereto and incorporated
herein by reference (the "Property") (collectively, the "Security
Documents"); and
3. Tenant desires to be assured that, if Lender should
foreclose the Security Documents, Lender agrees to recognize the
leasehold estate and rights of Tenant under the Lease and to
assume and be bound to Tenant to perform the obligations of
Landlord under the Lease with the same force and effect as if
Lender were the landlord under the Lease (subject to any express
exceptions herein);
4. Lender is willing to agree that Tenant's possession of
the Premises shall not be disturbed as a result of a foreclosure
of the Security Documents or a transfer in lieu of foreclosure so
long as Tenant is not in default (beyond any period of time given
Tenant to cure) under the Lease and provided Tenant subordinates
the Lease to the lien of the Security Documents and agrees to
attorn to the purchaser at the foreclosure sale or transferee
taking title in lieu of foreclosure and recognizes said purchaser
or transferee as landlord under the Lease.
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Lender and Tenant do hereby mutually covenant and
agree as follows:
1. Subordination. Subject to the terms hereof, Tenant
hereby subordinates the Lease, all extensions, modifications and
renewals thereof, and all of Tenant's rights and interests
thereunder, to the Security Documents and the lien thereof, and to
all modifications, renewals and extensions of the same, to the
extent of all advances heretofore or hereafter made to Landlord
secured by the Security Documents.
2. Non-Disturbance and Attornment. Provided Tenant is not
in default beyond any period of time set forth in the Lease given
Tenant to cure following any notice required by the Lease, as of
the date Lender commences foreclosure proceedings or accepts a
deed in lieu of foreclosure (except that if Tenant is in default
at such date and the default is capable of cure by Tenant and
Tenant is diligently and continuously pursuing such cure to
completion then such default shall not affect Lender's obligations
to Tenant hereunder), then no default under the Security
Documents, as modified, extended, increased, spread, or
consolidated, and no proceeding to foreclose the same or the
acceptance by Lender of a deed in lieu of foreclosure, or by any
other manner, will disturb Tenant's possession under said Lease
and the Lease will not be affected or extinguished thereby. In
addition, Lender agrees not to name Tenant in any proceeding
instituted to foreclose the Security Documents, unless Lender is
legally obligated to do so in order to properly foreclose the
same, and then such foreclosure shall in any event be made subject
to the provisions of this Agreement. In the event of any such
foreclosure or other sale to, or acquisition of the Premises by, a
third party, or by any other manner, in lieu of foreclosure by
Lender, Tenant shall attorn to Lender or such other third party,
and the Lender or such third party shall recognize the Lease as a
direct lease from Lender or such third party, and the Lender or
said third party shall assume and be bound to Tenant to perform
the obligations of Landlord under the Lease, except that neither
the purchaser at such foreclosure sale nor the grantee of a deed
in lieu thereof shall (a) be liable for any previous act or
omission of Landlord under the Lease, (b) be subject to any
offset, claim or defense which shall theretofore have accrued
against Landlord, unless the basis of such offset, claim or
defense remains uncured and notice thereof is given to Lender by
Tenant as provided herein, (c) have any obligation with respect
to any security deposit under the Lease unless such security
deposit has been physically delivered to Lender, or (d) be bound
by any previous modification of the Lease or by any previous
prepayment of rent for a period greater than one (1) month in
advance of its due date under the Lease, unless such modification
or prepayment shall have been expressly approved in writing by
Lender, such approval, in the case of modifications, not to be
unreasonably withheld, conditioned or delayed. Lender agrees to
immediately notify Tenant in writing of any breach or default by
Landlord of any of the Security Documents.
3. Termination of Lease. Effective from and after the date
of this Agreement, Tenant will not terminate nor seek to terminate
the Lease by reason of a default under the Lease until Tenant
shall have given written notice of such default to Lender as
hereinafter provided. Such notice may be given to Lender
contemporaneously with Tenant giving notice to Landlord under the
Lease. Tenant will allow Lender the same period of time to cure
the event of default as is allowed to Landlord under the Lease.
4. Waivers to be in Writing. No modification, amendment,
waiver or release of any provision of this Agreement or of any
right, obligation, claim or cause of action arising hereunder
shall be valid or binding for any purpose whatsoever unless in
writing and duly executed by the party against whom the same is
sought to be asserted.
5. Successors and Assigns. This Agreement shall inure to
the benefit of the parties hereto, their successors and assigns;
provided, however, that in the event of the assignment or transfer
of the interest of Lender, all obligations and liabilities of
Lender under this Agreement arising from or after the date of such
assignment or transfer by Lender shall terminate as to the entity
that is then Lender, and thereupon all such obligations and
liabilities shall be the responsibility of the party to whom
Lender's interest is assigned or transferred.
6. Notice. Notice to Lender under the Lease or this
Agreement shall be sent to Lender at the following address, or
such other address as Lender shall designate to the Tenant in
writing, such new address to be effective thirty (30) days after
Tenant has received it:
_________________________________
_________________________________
_________________________________
_________________________________
IN WITNESS WHEREOF, Tenant and Lender have respectively
signed and sealed this Agreement as of the day and year first
above written.
EACO CORPORATION
By:
Name:
Title:
TENANT
By:
Name:
Title:
LENDER
STATE OF ____________
COUNTY OF __________
The foregoing instrument was acknowledged before me this _____ day
of _________, ____, by ____________________________ as
_____________________________, of ______________________________,
a ________________ corporation, on behalf of the corporation.
He/She is personally known to me or has produced ____________ as
identification.
Name:
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this _____ day
of __________, 2004, by ____________________, as _______________,
of EACO CORPORATION on behalf of the corporation. He/She is
personally known to me or has produced ____________ as
identification.
Name:
NOTARY PUBLIC, State and County
Aforesaid
Commission No.
My Commission Expires:
