EXHIBIT 10.10
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated this _____ day of ___________, 1998, is made
and entered into by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(hereinafter called "Landlord"), and ▇▇▇▇▇▇▇▇ EQUIPMENT AND ENGINEERING CO., a
Florida corporation (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord owns commercial property consisting of approximately
_________ square feet located at ______________, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
(hereinafter referred to as "Leased Premises"); and
WHEREAS, Tenant desires to lease from Landlord such property upon the terms
and conditions herein contained.
NOW, THEREFORE, for and in consideration of the mutual benefits to be
gained by the performance hereof, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant do hereby agree as follows:
1. DESCRIPTION OF PREMISES BEING LEASED. Landlord, in consideration of
------------------------------------
the covenants and agreements herein undertaken to be kept and performed by
Tenant, does hereby grant, demise and lease unto Tenant certain land and
building improvements thereon in Orange County, Florida, at ______________,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, such land being more particularly described on Exhibit
"A" attached hereto and made a part hereof. Such building and improvements,
including the site improvements and fixtures contained in the building and land
and provided by Landlord therein on Exhibit "A", are hereinafter referred to as
the "Leased Premises."
TO HAVE AND TO HOLD, all and singular, the Leased Premises, together
with all rights, privileges and appurtenances thereunto belonging unto the
Tenant, right of ingress and egress thereto and therefrom at all times, for a
term of years as hereinafter provided, unless such term shall be sooner ended
and terminated under the terms and provisions hereof.
2. TERM OF LEASE. The term of this Lease (sometimes hereinafter called
-------------
the "Term") shall be for a period of ten (10) years commencing on the
"Commencement Date" as hereinafter defined, and ending at midnight on the last
day of the month which shall be ten (10) years from the Commencement Date,
unless sooner terminated as provided in this Lease.
3. COMMENCEMENT DATE. The Commencement Date shall be ______________, for
-----------------
a term of ten (10) years, ending on __________________. Tenant's obligation to
pay rent shall commence as of the Commencement Date.
4. RENT. Tenant shall pay Landlord, during the Term hereof; Base Rent in
----
the annual amount of seven dollars ($7) per square foot for a total One Hundred
Eighty Two Thousand Dollars ($182,000) during the first year of this Lease.
Base Rent shall increase to eight dollars ($8) per square foot for a total of
Two Hundred Eight Thousand Dollars ($208,000) during the second year of this
Lease and shall further increase to nine dollars ($9) per square foot for a
total of Two Hundred Thirty-Four Thousand Dollars ($234,000) during the third
year of this Lease. In each subsequent year of this Lease, Base Rent shall
increase by an amount equal to ten percent (10%) over the Base Rent for the
preceding year. The Base Rent shall be paid in monthly installments, each in an
amount equal to one-twelfth (1/12) of the annual Base Rent, plus applicable
sales tax, payable in advance on the first day of each month without demand. If
any payment of rent is not received by the tenth (10th) day of the month, Tenant
shall pay to Landlord a late charge of five percent (5%) of the amount of such
past due amount. If the Term of this Lease should commence on a date other than
the first day of a calendar month, the monthly installment of the Base Rent for
such calendar month shall be prorated on a per diem basis. Any other payments
due under this Lease shall be paid within ten (10) days of receipt of the
invoice.
5. TAXES.
-----
a. Tenant shall reimburse Landlord for all real estate taxes,
assessments and other governmental charges assessed, levied or
imposed against the Leased Premises, include
b. real estate taxes, assessments and other governmental charges which
are special, extraordinary and unforeseen. Statements received by
Landlord shall be paid and forwarded promptly to the Tenant.
Reimbursement of all said charges shall be made without interest or
penalty by Tenant on or before the next rent payment date after the
receipt of said reimbursement statement. Upon written request,
Landlord shall submit to Tenant receipted bills showing the payment
of such assessments. The Tenant shall be responsible for the payment
of all applicable sales taxes and other such taxes as are now or
hereafter enacted with respect to the tenancy created hereunder.
b. Nothing in this Lease shall require or be construed to obligate
Tenant to pay any corporate, estate, inheritance or succession tax of Landlord
or any income tax upon the income of Landlord.
c. Tenant may contest in good faith, by appropriate proceeding, at
Tenant's expense, in Landlord's or Tenant's name, whenever necessary, any
assessment, and may defer payment thereof, provided that Tenant shall, if
required by law, deposit with the appropriate taxing authority the amount of the
item so contested, and, further provided that such contest shall not result in
the placing upon or enforcement of any lien against the Leased Premises.
Tenant, in each such case, shall notify Landlord of its intent to contest the
assessment and shall further keep the Landlord fully advised as to any such
proceedings and the outcome thereof.
d. Tenant may, if it shall so desire, and in its own name or in the
name of Landlord, as appropriate, endeavor at any time to contest in good faith
the validity of any assessment, or to obtain a lowering of the assessed
valuation upon the Leased Premises for the purpose of reducing any assessment,
provided that Tenant shall, if required by law, deposit with the appropriate
governmental authority the amount of the assessment so contested, and further
provided that such contest shall not result in the placing upon or enforcement
of any lien against the Leased Premises. In such event, Landlord will cooperate
with Tenant at the request of Tenant but without expense to Landlord. If
requested by Tenant, and provided it will not in the reasonable judgment of
Landlord incur any expense or liability thereby, Landlord will execute any
document, which may be necessary and proper for any such proceeding. Tenant, in
each such case, shall notify Landlord of its intent to contest the assessment or
valuation and shall further keep the Landlord fully advised as to any such
proceedings and the outcome thereof.
6. POSSESSION AND USE OF LEASED PREMISES. Tenant warrants that no
-------------------------------------
business shall be conducted on the Leased Premises, which will violate any law
or ordinance now or hereafter in force. Tenant shall keep and maintain at all
times during the Term of this Lease all licenses now or hereafter needed or
required for the lawful operation of its business on the Leased Premises.
Possession of the Leased Premises when delivered to Tenant shall be delivered
free and clear of all liens except mortgages now or hereafter placed on the
Leased Premises by Landlord, and Landlord shall have the right from time to time
to finance and refinance the Leased Premises subject to the provisions of this
Agreement. Tenant intends to use and occupy the Leased Premises primarily for
the manufacture, design and sale of crematories, incinerators and other
combustion equipment.
7. RELATION OF PARTIES. The receipt by Landlord of rents hereunder shall
-------------------
not be deemed to create a partnership or joint venture between Landlord and
Tenant, nor shall Landlord be liable for any debts incurred by Tenant in the
conduct of its business; it being understood that the relationship between such
persons is, and at all times shall remain, that of Landlord and Tenant.
Landlord shall have no management or operational responsibility whatsoever of
Tenant's business.
8. MAINTENANCE AND REPAIRS. Throughout the Term of this Lease, Tenant
-----------------------
shall bear all (100%) of the cost and expense of maintaining the Leased
Premises in good repair and in a clean, sightly and healthful condition, which
maintenance shall include the furnishing of janitorial services, all maintenance
and repairs and replacements, and landscape and grounds maintenance. Landlord
shall deliver the Leased Premises to Tenant with all electrical, heating,
cooling, plumbing and other systems in good working order. If Tenant fails to
repair or maintain the Leased Premises as herein required after thirty (30) days
prior written notice by Landlord, Landlord may pay for such normal repairs or
maintenance and all such amounts paid by Landlord shall automatically be added
to the following month's rental payment provided Landlord submits to Tenant
written confirmation of such normal repairs or maintenance.
9. CONSTRUCTION LIENS. Landlord's interest shall not be subject to liens
------------------
for repairs or improvements made by Tenant upon the Leased Premises. Tenant
shall not permit any construction lien to be filed against the Leased Premises
or against Tenant's leasehold interest in the Leased Premises by reason of work,
labor, services or materials supplied to Tenant or anyone holding the Leased
Premises through or under Tenant. If any such construction lien shall at any
time be filed against the Leased Premises, Tenant shall, within sixty (60) days
after notice of the filing thereof,
3
cause such lien to be discharged of record by payment, deposit, bond, order of a
court of competent jurisdiction, or otherwise. If Tenant shall fail to cause
such lien to be discharged within such sixty (60) day period, then, after ten
(10) days' written notice by Landlord, in addition to any other right or remedy
of Landlord, Landlord may, but shall not be obligated to, discharge such lien,
either by payment of the amount claimed to be due or by procuring the discharge
of such lien by deposit or by bonding proceedings, and in any such event
Landlord shall be entitled, if Landlord so elects, to compel the prosecution of
an action for the foreclosure of such construction lien by the lienor and to pay
the amount of the judgment for and in favor of the lienor, with interest, costs
and other allowances. Any amount reasonably paid by Landlord for any of such
purposes shall be repaid by Tenant to Landlord on demand, and if unpaid, shall
be treated as additional rent at Landlord's option. At the request of either
party, Landlord and Tenant shall execute an affidavit in recordable form for the
purpose of notifying third parties that the Landlord's interest in the Leased
Premises is not subject to any such construction liens for work performed by
Tenant. Said affidavit shall be recorded in the Public Records of Orange County,
Florida.
10. INSURANCE. Tenant shall pay for one hundred percent (100%) of the
---------
cost and expense of any insurance carried by Landlord with respect to Landlord's
Property. Tenant shall also maintain throughout the term commercial general
liability insurance in an amount at least equal to $3,000,000 (combined single
limit) or such higher amount as Landlord shall reasonably require. The
insurance shall cover the entire Leased Premises, shall name both Landlord and
Tenant as insureds, shall be issued by insurance companies and in form
reasonably satisfactory to Landlord, shall provide for at least ten (10) days
prior written notice to Landlord in the event of cancellation or material
change. Copies of such policy or policies shall be furnished to Landlord upon
written request.
Tenant shall secure and bear the cost and expense of, and maintain
throughout the Term, fire and extended coverage insurance in such amounts as
will cover the full replacement cost of the improvements included as a part of
the Leased Premises, which insurance shall show the interest of the Landlord and
Tenant, shall be issued by insurance companies and in a form reasonably
satisfactory to Landlord, and shall provide for at least ten (10) days prior
written notice to Landlord in the event of such cancellation or any material
change. Each mortgagee of the Leased Premises shall be named as an additional
loss payee, as their interests shall appear. Copies of all such policies shall
be furnished to Landlord upon written request.
Any insurance provided for in this Paragraph may be effected by a
blanket policy or policies of insurance, or under so-called "all risk" or
"multi-peril" insurance policies provided it is available to Landlord. An
increased coverage or "umbrella policy" may be provided and utilized by Tenant
to increase the coverage provided by individual or blanket policies in lower
amounts, and the aggregate liabilities provided by all such policies covering
the Leased Premises and Landlord's liability hereunder shall be satisfactory
provided they otherwise comply with the provisions of this Paragraph. Landlord
shall be named as a loss payees.
11. DAMAGE OR DESTRUCTION OF LEASED PREMISES. If the Leased Premises
----------------------------------------
shall be damaged by fire, the elements, unavoidable accident, vandalism, or
other like casualty to the extent of less than fifty percent (50%) of the cost
of replacement of the Leased Premises, the damage (except damage to Tenant's
equipment, trade fixtures and other property) shall be promptly repaired by
Landlord at Landlord's expense, but only if insurance proceeds are available,
and the rent and other
4
charges hereunder shall be abated to the extent, if any, that any portion of the
Leased Premises is rendered untenantable for Tenant's purposes (in the
reasonable opinion of Tenant), with such abatement to be computed on the basis
of the relation to which the gross square foot area of the space rendered
untenantable bears to the entire floor area of the Leased Premises, and with
such abatement to run from the date of occurrence of such damage. Provided,
however, that Landlord shall not be obligated to commence such repair,
restoration or rebuilding until insurance proceeds are received by Landlord, and
Landlord's obligation hereunder shall be limited to the proceeds actually
received by Landlord under any insurance policy or policies hereunder. If the
Leased Premises shall be so damaged to the extent of fifty percent (50%) or more
of the costs of replacement of the Leased Premises, Landlord may, at its option,
upon thirty (30) days prior written notice to Tenant, terminate this Lease, or
may elect to repair the Leased Premises (excluding the Tenant's equipment, trade
fixtures or other property), and in either event the rent chargeable hereunder
shall be abated in the manner aforesaid. If the Leased Premises is so damaged to
the extent that the Leased Premises is wholly untenantable for the Tenant's
purposes (in the reasonable opinion of Tenant), then the Tenant may lease other
premises for a period of up to one (1) year, during which time the running of
the Lease Term shall be tolled and all of Tenant's obligations under this Lease
shall ▇▇▇▇▇. If Landlord has not rebuilt or repaired the Leased Premises to a
condition, which is equal to or better than the condition thereof existing
immediately prior to such casualty within nine (9) months after such casualty,
then Tenant may terminate this Lease.
12. GAS, WATER AND ELECTRICITY. Tenant agrees to pay all public utility
--------------------------
charges that may be assessed, including without limitation charges for gas,
electric light or power, water and sewerage (hereinafter "Utility Expenses")
used in or about the Leased Premises, which shall accrue during the term of this
Lease. Tenant shall be solely responsible for any and all required
installation, deposits and other charges incurred in connection with Tenant's
use of the utilities. In the event of failure of Tenant to pay any Utility
Expense within fifteen (15) days after written notice from Landlord that the
same are due and payable, Landlord shall have the right and privilege to pay
such charges, which amounts shall be deemed as additional rent, and shall be due
and payable with the next installment of rent due thereafter.
13. TENANT TO COMPLY WITH ALL LAWS. Tenant covenants and agrees that it
------------------------------
will comply with all valid laws, ordinances, rules and regulations of the state
and county in which the Leased Premises are located, and of the United States,
and any governmental authority having jurisdiction over the Leased Premises,
applicable to the occupancy or use of the Leased Premises, excluding any law,
ordinance, rule or regulation requiring structural improvements to the Leased
Premises and any improvements to the Leased Premises during the last year of the
Term.
14. RIGHT OF INSPECTION BY LANDLORD. Landlord, its agents or
-------------------------------
representatives, shall have the right upon at least three (3) business days'
prior notice to Tenant (except in the case of an emergency), to enter upon the
Leased Premises at all reasonable hours for the purpose of inspection of same.
Tenant, at its option, may provide an employee to accompany Landlord's
representative, but the unavailability of such employee shall not delay the
inspection.
15. EMINENT DOMAIN. If, during the Term hereof, all or so much of the
--------------
Leased Premises shall be taken in any proceeding by public authorities by
condemnation or otherwise, or be acquired for public or quasi-public purposes,
such that the continued operation of the Tenant's business on the
5
Leased Premises becomes operationally or economically unfeasible (in the
reasonable opinion of Tenant), this Lease shall be terminated, in which case any
unearned rent paid or credited in advance shall be refunded to Tenant. In the
event of a partial taking which would not cause the continued operation of the
business to become operationally or economically unfeasible (in the reasonable
opinion of Tenant), Landlord shall, with all reasonable dispatch, repair the
remaining portion of the building structure and/or parking areas complete in
themselves and as a complete architectural and/or physical unit so as to put the
building structure and parking areas in a condition to be used by Tenant, and
the rent payable hereunder shall be reduced in proportion to the portion of the
building structure and parking areas taken; provided, however, if Landlord is
able to provide additional parking in amount, reasonable proximity to the Leased
Premises and quality (i.e., surfaced and striped) which is equal to or better
than that which is condemned, then there shall be no rent reduction for parking
loss. Except for payments made pursuant to Tenant's rental protection insurance,
if any, claim for which shall be made, the rent shall be abated during any
period of time that the Leased Premises is untenantable. In the event Landlord
does not commence such work within thirty (30) days after such taking and does
not complete the work within one hundred twenty (120) working days after
commencement of such work, then this Lease, at the option of Tenant, shall cease
and terminate. It is expressly agreed and understood that all sums awarded or
allowed for such taking of the Leased Premises or any part thereof or for
damages for such taking shall belong to Landlord with the exception of any
separate amount specifically awarded to Tenant for moving expenses.
16. ALTERATIONS AND IMPROVEMENTS.
----------------------------
a. Alterations. Tenant shall be permitted to make any structural or
-----------
non-structural alterations, additions or improvements to or on the Leased
Premises provided such alterations, additions or improvements do not adversely
affect the Leased Premises, including, without limitation, the plumbing, HVAC
systems or electrical system of the Leased Premises. Such alterations,
additions and improvements as are made by Tenant shall be at Tenant's sole
expense. All alterations, additions or improvements to the Leased Premises
which may be made by either party hereto shall be the property of Landlord, and
shall remain upon and be surrendered with the Leased Premises as a part thereof
at the termination of this Lease.
Tenant shall furnish Landlord a copy of the plans and specifications
for any structural alterations, which shall be prepared by a licensed architect.
Landlord shall be entitled to approve such plans and specifications, which
approval shall not be unreasonably withheld. Any approval or disapproval by
Landlord shall be given in writing within fifteen (15) days of Landlord's
receipt of the plans and specifications, and, if disapproved, shall state the
reasons for the disapproval. Failure of the Landlord to provide a written
response within the fifteen (15) day period shall automatically be deemed as
approval. Construction of structural alterations shall be under a contract with
a general contractor licensed in the State of Florida.
b. All alterations, additions and improvements shall be performed in
a first-class workmanlike manner, and shall not weaken or impair the structural
strength or lessen the value of the existing buildings as such shall be on the
Leased Premises at the time of the construction or increase Landlord's liability
to Leased Premises. If required, before the commencement of such work, such
plans and specifications shall be filed with and approved by all governmental
departments or authorities having jurisdiction, and any public utility company
having an interest therein, and all such
6
work shall be done subject to and in accordance with the requirements of law and
local regulations of all governmental departments or authorities having
jurisdiction and of each public utility company. Landlord agrees, at Tenant's
expense, to execute such documents and take such action as may be necessary or
desirable to assist Tenant in obtaining such governmental approvals.
17. TENANT'S FIXTURES AND EQUIPMENT. All machinery or equipment owned or
-------------------------------
installed by the Tenant in the Leased Premises shall be and remain the property
of the Tenant and may be removed by it at any time during or at the expiration
of the term of this Lease. In the event any removal of machinery or equipment
shall injure or damage the Leased Premises, the Tenant agrees to repair such
damage at its own expense.
18. TENANT'S RIGHT TO INSTALL SIGNS. Tenant shall have the privilege of
-------------------------------
placing signs on the Leased Premises for the conduct of its business, provided
Tenant pays all permit and license fees which may be required to be paid for the
erection and maintenance of any and all such signs, and provided such signs are
legally permitted to be installed. Landlord must approve the size, location and
method of installation of any sign placed by Tenant, provided, however, that
such approval shall not be unreasonably withheld.
19. RIGHT OF LANDLORD TO SUBORDINATE. Landlord reserves the right to
--------------------------------
subordinate and subject this Lease at all times to the lien of any bona fide
mortgage or mortgages now or hereafter placed upon the Landlord's interest in
the Leased Premises and on the land and building of which the Leased Premises
are a part, or upon any building hereafter placed upon the land of which the
Leased Premises form a part. The parties hereto expressly acknowledge and agree
that (a) this Lease is conditioned upon Landlord delivering to Tenant a
nondisturbance agreement from any existing mortgagee in a form reasonably
satisfactory to Tenant, and (b) Landlord's right to subordinate this Lease is
conditioned upon Landlord first delivering to Tenant a nondisturbance agreement
from any proposed mortgagee in a form reasonably satisfactory to Tenant.
Subject to the foregoing, Tenant covenants and agrees to execute and deliver
upon demand such further instrument or instruments subordinating this Lease to
the lien of any such mortgage or mortgages and attain to any such mortgagee, as
shall be desired by Landlord or any mortgagees or proposed mortgagee; provided,
however, that such subordination and attornment agreement shall not subject
Tenant to any obligations other than those expressly contained in this Lease.
Such subordination and attornment shall be delivered by Tenant to Landlord
within ten (10) days after written demand.
20. ASSIGNMENT OR SUBLETTING. Tenant shall be entitled to assign its
------------------------
leasehold estate under this Lease or sublet all or any part of the Leased
Premises to any parent, subsidiary or affiliate of Tenant, upon notifying
Landlord in writing of such assignment or sublease and provided the assignee or
sublessee intends to maintain the same or similar use of the property. Any
other assignment or subletting must be approved by Landlord in writing, which
approval shall not be unreasonably withheld. In the event of an assignment or
subletting, Tenant shall remain liable to Landlord for its obligations under the
Lease unless released therefrom in writing by Landlord.
7
21. DEFAULT.
-------
a. Default by Tenant. If Tenant shall fail or refuse to pay the rent
-----------------
reserved herein or any other sums due by Tenant hereunder and such default
continues for a period of ten (10) days after the date due; or if Tenant shall
fail to observe or comply with any of the terms, provisions or conditions of
this Lease to be observed and performed by Tenant and such default continues for
a period of thirty (30) days after receipt of written notice by Landlord to
Tenant; or upon the making by Tenant of any general assignment for the benefit
of creditors, the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed with prejudice within sixty (60) days), the
appointment of a trustee or receiver to take possession that is not restored to
Tenant within thirty (30) days, or the attachment, execution or other judicial
seizure that is not discharged within thirty (30) days, then in any such case or
event, Landlord, at Landlord's option and in addition to any other remedies
Landlord may have, shall have the following rights, which may be exercised
independently or concurrently:
(1) The right to declare the entire remaining unpaid rental for the
term of this Lease immediately due and payable forthwith at the then-current
rate of monthly rental and take any legal action to recover and collect the
same;
(2) The right, without further notice or demand, to terminate this
Lease, to re-enter the Leased Premises, or any part thereof, and expel and
remove all persons or property occupying the Leased Premises, and to take
possession of any and all furniture, fixtures and chattels in or on the Leased
Premises and sell same, in whole or in part, at any place, or cause the same to
be sold at public or private sale, with notice to Tenant, without obtaining any
execution order or decrees, to the highest bidder for cash, with or without such
property being present at the sale, and apply the proceeds thereof to the
payment of costs and expenses of taking and removing the property and holding
the sale and of rents and amounts owing Landlord; any excess going to Tenant,
and Tenant agrees to make good any deficiency; and/or
(3) The right, but the Landlord shall not be under any obligation to
do so, to enter the Leased Premises, or any part thereof, and expel and remove
all persons, property and signs therefrom, and relet the same, for the account
of the Tenant, for such rent and such terms as shall be satisfactory to Landlord
without such re-entry working on a forfeiture of the rents to be paid and the
covenants to be performed by the Tenant during the full term of this Lease. If
a sufficient sum shall not be realized monthly from such re-letting after paying
all the costs and expenses of such repairs, changes, alterations or additions,
the expenses of such re-letting and the collection of the rent accruing
therefrom to satisfy the monthly rent provided herein to be paid by the Tenant,
then the Tenant shall and will, and does hereby covenant to pay such deficiency
each month upon demand therefor.
If a non-monetary default by Tenant requires more than thirty (30)
days to cure, Tenant shall not be deemed to be in default, if, in good faith, it
has commenced to cure such default within said thirty (30) day period and
diligently pursues the same. Notwithstanding anything to the contrary contained
in this Lease, if Tenant pays the rent provided in this Lease then Tenant shall
be deemed not to have abandoned the Leased Premises, subject to the provisions
of Section 6.
8
b. Default by Landlord. In the event of default by Landlord which is
-------------------
not corrected within thirty (30) days after receipt of written notice by Tenant
to Landlord (or such shorter period after notice as may be required in the event
of an emergency), or if such default requires more than thirty (30) days to
correct, if Landlord has not commenced correction of such default and does not
diligently pursue the same, then, except as otherwise therein provided, Tenant
shall have the option to institute an action to require performance by the
Landlord.
c. The rights and remedies of Landlord and Tenant under this
Paragraph are cumulative to those elsewhere provided herein.
22. INDEMNITY. Tenant, during the Term and any extension or renewal
---------
thereof, shall indemnify and save Landlord harmless from and against any and all
claims and demands whether for injuries to persons or loss of life, or damage to
property, related to or arising in any manner whatsoever out of the use and
occupancy of the Leased Premises by Tenant or occasioned wholly or in part by
any act or omission of Tenant, its agents, contractors, employees acting within
the scope of their employment by Tenant, invitees, licensees or customers
(except when such claims for injuries or damages are occasioned by or result
from the negligence or willful action of the Landlord, its agents, contractors
or employees).
23. HAZARDOUS MATERIALS. Tenant shall have no responsibility for the
-------------------
discovery, presence, handling, removal, encapsulation or disposal of any
hazardous materials, including but not limited to asbestos products,
polychlorinated biphenyl (PCB), or other toxic substances which became located
on the Leased Premises prior to the delivery of the Leased Premises to Tenant or
which are not due to Tenant's use or occupancy thereof. Landlord agrees to
indemnify and hold Tenant harmless from and against all claims and costs arising
out of the discovery or removal of said hazardous materials which became located
on the Leased Premises prior to Tenant taking possession of the Leased Premises
under this Lease. Tenant agrees to indemnify and hold Landlord harmless from
and against all claims and costs arising out of the discovery or removal of said
hazardous materials which become located on the Leased Premises subsequent to
Tenant taking possession of the Leased Premises under this Lease and which are
due to Tenant's use or occupancy thereof.
24. HOLDING OVER. Any holding over by Tenant after expiration or
------------
termination of this Lease, in whatever manner its termination shall occur, shall
not operate as a renewal of this Lease, but during the period of such holding
over, Tenant shall be a tenant on a month-to-month basis and shall pay Base Rent
in an amount equal to one and one-half (1 1/2) times the Base Rent due during
the last month of the Term.
25. ATTORNEYS' FEES AND COSTS UPON DEFAULT. In case either party hereto
--------------------------------------
places the enforcement of this Lease, or any part of same or the collection of
any rent or other sums due or to become due hereunder, or the recovery of
possession of the Leased Premises, in the hands of an attorney, or files suit
upon the same, the non-prevailing party in any such action agrees to pay to the
prevailing party all reasonable attorneys' fees and all expenses and costs
incurred by the prevailing party pertaining thereto (including costs and fees
relating to any appeal) and in enforcement of any remedy, and the payment of
same shall be secured in like manner as is herein provided for as security for
rent.
9
26. QUIET POSSESSION. Landlord covenants and agrees with Tenant that
----------------
upon Tenant paying the Base Rent, and performing all the covenants and
conditions aforesaid on Tenant's part to be observed and performed, Tenant shall
and may peaceably and quietly have, hold and enjoy the Leased Premises, for the
Term provided herein, subject, however, to the terms of this Lease.
27. BROKERAGE. Landlord and Tenant hereby acknowledge, represent and
---------
warrant to each other that no broker or finder has been employed by either
Landlord or Tenant in connection with the Lease transaction contemplated in this
Lease. Landlord and Tenant each warrant to the other that no commissions are
payable by Landlord or Tenant to any other broker or finder in connection with
this Lease or the transaction contemplated herein, and Landlord and Tenant each
agrees to indemnify, defend, save and hold the other harmless from and against
the payment of any further commissions or fees or claims for commissions or fees
by virtue of any acts or actions undertaken by them, respectively, including
reasonable attorneys' fees and costs in defending against the same.
28. NOTICES. Whenever, in the provisions of this Lease, notice is
-------
required to be given by either party herein, it shall not be construed to
require personal notice, but notice may be given in writing by depositing the
same with the U.S. Postal Service, with postage prepaid, in a sealed envelope,
and addressed to such other party and sent by registered or certified mail,
return receipt requested, or it may be delivered personally or by Federal
Express, Express Mail or any other nationally recognized courier service.
NOTICE TO LANDLORD ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SHALL BE SENT TO: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
NOTICE TO TENANT ▇▇▇▇▇▇▇▇ Equipment and Engineering Company
SHALL BE SENT TO: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, C.E.O.
or at such other place as Landlord or Tenant may in writing require.
29. ESTOPPEL. Landlord and Tenant agree that when requested in connection
--------
with any matter relating to the Leased Premises that they will deliver an
estoppel certificate to the other party, addressed as such party directs, within
twenty (20) days after such request. An estoppel certificate shall set forth
the following statements to the best knowledge of the persons certifying:
a. Whether or not the Lease has been supplemented or amended and, if
so, the specifics of such supplement or amendment.
b. Whether or not the Lease is in full force and effect and if not,
the reasons therefor.
c. The date to which rent and other charges have been paid.
10
d. Whether or not there has occurred an event of default, which
continues to exist, or an event exists that may cause a future default, and, if
so, the nature and extent of such event of default.
The estoppel certificate may be relied upon by the party requesting it
or by any other party to whom it is addressed. The contents of the estoppel
certificate shall be binding on the party, which has executed it.
30. MODIFICATION OR ALTERATION OF LEASE. No modification of the
-----------------------------------
provisions, covenants, conditions and terms of this Lease shall become effective
or take precedence unless such modifications are especially covered by written
agreement, signed by both the Landlord and Tenant, and made a supplement of this
Lease.
31. SEVERABILITY. No provision of this Lease in violation of any law or
------------
ordinance shall invalidate this Lease, and any such provision shall be deemed
stricken from this Lease and all remaining portions of this Lease shall remain
in full force and effect.
32. RIGHTS OF SUCCESSORS IN INTEREST. This Lease, including all terms,
--------------------------------
conditions and covenants, shall be binding upon and shall inure to the benefit
of each of the parties hereto, their successors, assigns and legal
representatives, the same as if such words had been inserted following the names
of Landlord and Tenant, respectively.
33. GOVERNING LAWS. This Lease shall be governed, construed and enforced
--------------
in accordance with the laws of the state of Florida.
34. COUNTERPARTS. This Lease may be executed in multiple counterparts,
------------
each of which shall be deemed an original.
35. PERFORMANCE UNDER PROTEST. If a dispute shall arise with respect to
-------------------------
the performance of any obligation including an obligation to pay money, the
party against which the obligation is asserted shall have the right to perform
the obligation under protest. Performance of an obligation under protest shall
not be regarded as voluntary performance. A party that shall have performed
under protest shall also have the right to institute a lawsuit to recover any
amount paid or the reasonable costs of otherwise complying with any such
obligation.
36. WARRANTIES AND REPRESENTATIONS. Landlord warrants and represents to
------------------------------
the Tenant that as of the date of this Lease:
a. Landlord is the owner in fee simple of the Leased Premises
described in Exhibit "A" attached hereto;
b. There are no restrictions in any contract or agreement to which
Landlord is a party which would interfere with Landlord's performance of its
obligations under this Lease;
c. There are no zoning or other governmental regulations which would
prohibit the use of the Leased Premises for its intended uses by the Tenant;
and
11
d. There are no assessments imposed against the Leased Premises,
which remain due and unpaid as of the date hereof.
37. MEMORANDUM. At the request of either party, both Landlord and Tenant
----------
shall execute a memorandum of this Lease in recordable form. Such memorandum
shall be recorded in the Public Records of Orange County, Florida.
38. TIME. For all purposes of this Lease, it shall be understood that
----
time is of the essence.
39. VENUE. Landlord and Tenant agree that the exclusive venue for any
-----
actions or litigation related to this Lease shall be in the appropriate court in
Orange County, Florida.
40. RADON GAS. Radon is a naturally occurring radioactive gas that, when
---------
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
41. NET LEASE. This Lease is intended to be a net lease. The Tenant
---------
shall pay the rent hereunder and all expenses related to the Leased Premises and
allocable expense related to the Leased Premises (i.e., insurance, taxes,
utilities, etc.), except the costs associated with the mortgage.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first written above.
"Landlord"
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
"Tenant"
▇▇▇▇▇▇▇▇ EQUIPMENT AND
ENGINEERING COMPANY
By:________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
President
717/lease
12
EXHIBIT "A"
-----------
Lots 41 and 42, West of the Drainage Canal, Sphalers Addition to Prosper Colony,
as recorded in Plat Book "F", Page 94, of the Public Records of Orange County,
Florida.
13
