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Exhibit 10.10
BUSINESS LEASE
THIS AGREEMENT, entered into as of this 17th day of September, 1999, between
FUNDAMENTAL XXXXXXX EASTON NO. 11, INC. OR FHE #11, a Florida general
partnership, hereinafter called Landlord, and PODS, INC., hereinafter called
Tenant, IS TO WITNESS: that Landlord does this day lease unto Tenant; Warehouse
premises.
LOCATION: the premises known as: 0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx
Approx. 70,200 SF of the Former Florida Mirror
Space (Floor Plan Attached)
TERM. TO HAVE AND TO HOLD said premises for the term of Sixty-Two (62) Months
beginning October 1, 1999 and ending November 30, 2004, and for the agreed
rental of ____________ Dollars ($____________) payable to and at the office of
the Landlord as follows:
PERIOD MONTHLY BASE RENT ANNUAL RENT
------ ----------------- -----------
10/01/99 - 9/30/00 $14,220.00 + Florida Sales Tax $170,640.00 - 3.95
10/01/00 - 9/30/01 $19,230.75 + Florida Sales Tax $230,769.00
10/01/01 - 9/30/02 $24,511.50 + Florida Sales Tax $294,138.00
10/01/02 - 9/30/03 $25,272.00 + Florida Sales Tax $303,264.00
10/01/03 - 9/30/04 $26,032.50 + Florida Sales Tax $312,390.00
- Landlord shall grant Tenant an initial period of sixty (60) days from the
date Tenant takes possession of space whereby no rent will be required to be
paid to Landlord.
Lessee hereby covenants and agrees to pay Landlord, together with any and all
sales and use taxes levied upon the use and/or occupancy of the leased
premises, the monthly rent, the 1st day of each and every month of the term in
legal tender of the United States, without demand, at the office of EASTON &
ASSOCIATES, 000 XXXXX XXXXXX, XXXXX XXXXXX, XX 00000, or other such place as
Landlord may designate. Tenant shall also pay at the same times and places as
the installments, such Florida State Sales Tax and such other applicable taxes,
other than income taxes and taxes of a similar nature, due on rentals, either
city, state, county and Federal as may be in effect from time to time.
Tenant shall also pay at the same times and places as the installments, such
Florida State Sales Tax and such other applicable taxes, other than income
taxes and taxes of a similar nature, due on rentals, either city, state, county
and Federal as may be in effect from time to time.
IT IS FURTHER AGREED AND COVENANTED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:
1. SECURITY. Tenant has deposited with the said Landlord the sum of
$28,440.00 representing two month's base rental (concurrently with the
execution of this Lease) the receipt of which is hereby acknowledged by
Landlord, which sum shall be retained by Landlord as security for the payment
by Tenant of the rents herein agreed to be paid by Tenant and for the faithful
performance by Tenant of the terms and covenants of this lease. It is agreed
that Landlord, at Landlord's option, may at any time apply said sum or any
part thereof toward the payment of the rents and all other sums payable by
Tenant under this lease, and towards the performance of each and every of
Tenant's covenants under this lease, but such covenants and Tenant's liability
under this lease shall thereby be discharged only pro tanto; that Tenant shall
remain liable for any amounts that such sum shall be insufficient to pay; that
Landlord may exhaust any or all rights and remedies against Tenant before
resorting to said sum, but nothing herein contained shall require or be deemed
to require Landlord so to do; that, in the event this deposit shall not be
utilized for any such purposes, then such deposit shall be returned by Landlord
to Tenant within ten days next after the expiration of the term of this lease.
Landlord shall not be required to pay Tenant any interest on said security
deposit.
2. ASSIGNMENT. Tenant shall not assign, transfer, sublease, mortgage,
pledge or otherwise encumber the demised premises or any part thereof without
the express, written consent of Landlord first obtained; provided, however,
that Landlord's consent shall not be unreasonably withheld. In the event of any
assignment, transfer or sublease by Tenant, Tenant shall remain liable for the
full performance of each and every covenant and condition hereunder.
3. EXAMINATION OF PREMISES. Tenant having examined the premises is
familiar with the condition thereof and relying solely on such examination will
take them in their present condition, unless otherwise expressly agreed upon in
writing.
4. DELAY OF POSSESSION. If the Landlord is unable to give possession of
the demised premises on the date of the commencement of the aforesaid term by
reason of the holding over of any prior tenants or for any other reason beyond
Landlord's control; an abatement or diminution of the rent to be paid hereunder
shall be allowed tenant under such circumstances, but nothing herein shall
operate to extend the term of the lease beyond the agreed expiration date; and
said abatement in rent shall be the full extent of Landlord's liability to
Tenant for any loss or damage to Tenant on account of said delay in obtaining
possession of the premises. If Landlord is unable to give possession of the
demised premises to Tenant within sixty (60) days next after the commencement
of the term of this lease, then Tenant shall have the right to cancel this
lease upon written notice thereof delivered to Landlord within ten days after
the lapse of said 60-day period; and, upon such cancellation, Landlord and
Tenant shall each be released and discharged from all liability on this lease.
5. USE. The premises shall be used by Tenant for Storage and Light
Assym. of Pods and for other purposes without the express, written consent of
Landlord first obtained; provided, however, that Landlord's consent shall not
be unreasonably withheld. It is further agreed that Tenant will use the entire
leased premises as hereinabove provided, and will conduct the above business
daily throughout the year and remain open during hours normal to the particular
type of business permitted herein.
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6. ALTERATIONS. Tenant will make no alterations, additions or
improvements in or to the premises without the written consent of Landlord
provided, however, that Landlord's consent shall not be unreasonably withheld,
and all additions, fixtures, or improvements, except only warehouse equipment
and office furniture and fixtures which shall be readily removable without
injury to the premises, shall be and remain a part of the premises at the
expiration of this lease, except that Landlord can elect within thirty (30)
days before expiration of the term, or within five (5) days after termination
of the term, to require Tenant to remove any alterations that Tenant has made
to the premises. If Landlord so elects. Tenant at its cost shall restore the
premises to the condition designated by Landlord in its election, before the
last day of the term, or within thirty (30) days after notice of election is
given whichever is later.
7. EXTERIOR. Landlord agrees to keep the exterior part of said premises
in good repair, but Tenant shall give Landlord seven (7) days written notice of
needed repairs and Landlord shall have a reasonable time thereafter to make
them. However, if any part of the exterior or interior of the premises is
injured or damaged by any breaking and/or entering said premises or by any
attempt to break and/or enter said premises by any third person or persons.
Tenant agrees to promptly cause all necessary repairs to be made at Tenant's
expense so as to promptly restore said premises to its condition immediately
prior to said breaking and/or entering or said attempt to break and/or enter.
In the event additional sanitary facilities are required because of the nature
of the operation conducted by the Tenant it shall be the Tenant's obligation to
supply such additional facilities and in the event the septic tank or drain
field shall become full and have to be pumped out or replaced the Tenant shall
have this service performed at Tenant's own expense.
8. INTERIOR. Tenant agrees to keep the interior of said premises, all
windows, screens, awnings, doors, including the overhead truck loading doors,
interior walls, pipes, elevators, machinery, plumbing, electric wiring, and
other fixtures and interior appurtenances in good and substantial repair and
clean condition at Tenant's own expense- fire, windstorm, or other act of God
alone excepted. All glass, both interior and exterior, is the sole risk of
Tenant and Tenant agrees to replace at Tenant's own expense, any glass broken
during the terms of this lease, and the Tenant agrees to insure and to keep
insured, all plate glass in the demised premises and to furnish the Landlord
with certification of said insurance. It is hereby understood and agreed that
in the event that there is an air conditioning unit (or units) in the demised
premises, the Tenant shall maintain the same during the term of this lease and
shall return said unit (or units) to the Landlord at the termination of this
lease in good working order, reasonable wear and tear excepted.
9. REGULATIONS AND INSURANCE. Tenant shall promptly execute and comply
with all statutes, ordinances, rules, orders, regulations and requirements of
the Federal, State and City Government, and of any and all their Departments
and Bureaus, applicable to said premises for the correction, prevention, and
abatement of nuisances or other grievances, in, upon, or connected with said
premises, during said terms, and shall also promptly comply with and execute
all rules, orders and regulations of the Southeastern Underwriters Association
for the prevention of fires, at Tenant's own cost and expense. Tenant agrees to
pay the amount of insurance premiums necessary to fully insure the premises at
its highest insurable value. Tenant agrees to carry $500,000/$1,000,000
liability insurance naming Landlord as additional insured. Proof of such
coverage shall be sent to Landlord within 15 days of Tenant's occupancy of the
demised premises.
10. ABANDONMENT. If Tenant shall abandon or vacate said premises before
the end of the term of this lease, or shall suffer the rent to be in arrears,
Landlord may, at his option, cancel this lease, by proceeding in the same
manner as provided for in Paragraph 23 hereof, or Landlord may enter said
premises as the agent of Tenant, by force or otherwise, without being liable in
any way therefore, and relet the premises with or without any furniture or
equipment that may be therein, as the Agent of Tenant, at such price and upon
such terms and for such duration of time as Landlord may determine, and receive
the rent therefor, applying the same to the payment of the rent due by these
presents, and if the full rental herein provided shall not be realized by
Landlord over and above the expenses to Landlord in such reletting. Tenant
shall pay any deficiency.
11. ATTORNEY'S FEES. If either party becomes a party to any litigation
concerning this lease, the premises, or the building or other improvements in
which the premises are located, by reason of any act or omission of the other
party or its authorized representatives, and not by any act or omission of the
party or its authorized representatives, the party that causes the other party
to become involved in the litigation shall be liable to that party for
reasonable attorney's fees and all costs and expenses incurred by it in
connection with said litigation including available appeals thereof.
12. PERSONAL PROPERTY. It is understood and agreed that any merchandise,
fixtures, furniture or equipment left in the premises when Tenant vacates shall
be deemed to have been abandoned by Tenant and by such abandonment Tenant
automatically relinquishes any right of interest therein. Landlord is
authorized to sell, dispose of or destroy same.
13. FIRE. In the event the premises shall be destroyed or so damaged or
injured by fire or other casualty, during the life of this agreement, whereby
the same shall be rendered untenantable, then Landlord shall have the right to
render said premises tenantable by repairs within ninety days therefrom. If
Landlord has not notified Tenant within thirty days therefrom of its intention
to render the premises tenantable or if said premises are not rendered
tenantable within said ninety days time, it shall be optional with either party
hereto to cancel this lease, and in the event of such cancellation the rent
shall be paid only to the date of such fire or casualty. The cancellation
herein mentioned shall be evidenced in writing. During any time that the
premises are untenantable due to causes set forth in this paragraph, the rent
or a just and fair proportion thereof shall be omitted.
14. PERSONAL PROPERTY. All personal property placed or moved in the
premises above described shall be at the risk of Tenant or the owner thereof,
and Landlord shall not be liable to Tenant for any damages to said personal
property unless caused by or due to gross negligence of Landlord, Landlord's
agents or employees.
15. CHARGES FOR SERVICES. It is understood and agreed between the parties
hereto that any charges against Tenant by Landlord for services, utilities or
for work done on the premises by order of Tenant, or otherwise accruing under
this lease, shall be considered as rent due and shall be included in any lien
for rent. It is further understood that the Tenant shall, upon demand, pay as
additional rent its prorata share(s) of any sprinkler standby, water and/or
sewer charges billable to the Landlord for the building(s) of which the demised
premises are a part.
16. SIGNS, AWNINGS. No awnings, sign or signs shall be attached to or
erected on the exterior of the premises without the written consent of Landlord
having first been obtained. The Landlord's consent shall not be unreasonably
withheld, and Landlord's failure to respond to Tenant's written request for
consent within fifteen days of receipt of said request shall be deemed approval.
17. RIGHT OF ENTRY. Landlord, or any of his agents, shall have the right
to enter said premises during all reasonable hours to examine the same or to
make such repairs, additions, or alterations as may be deemed necessary for the
safety, comfort, or preservation thereof, or of said building, or to exhibit
said premises, and to put or keep upon the doors or windows thereof a notice
"FOR RENT" at any time within ninety days before the expiration of this lease.
Said right of entry shall likewise exist for the purpose of removing placards,
signs, fixtures, alterations, or additions which do not conform to this
agreement.
18. TIME. It is understood and agreed between the parties hereto that
time is the essence of all of the terms and provisions of this lease.
19. NOTICES. It is understood and agreed between the parties hereto that
written notice addressed to Tenant and mailed or delivered to the premises
leased hereunder shall constitute sufficient notice to the Tenant, and written
notice addressed to Landlord and mailed or delivered to the office of Landlord
may then proceed immediately to collect all of the unpaid rent called for by
this lease by distress or otherwise.
20. NON-PAYMENT. Tenant agrees: That Tenant will promptly pay said rent
at the times above stated; that Tenant will pay all charges for gas,
electricity, other illuminant, and water, used on the premises during the term
of this lease; that, if any part of the rent shall remain due and unpaid for
seven (7) business days next after the same shall become due and payable,
Landlord shall have the option of declaring the balance of the entire rent for
the entire rental term of this lease to be immediately due and payable, and
Landlord may then proceed immediately to collect all of the unpaid rent called
for by this lease by distress or otherwise.
20- A. Immediately following the Tenant's failure to pay rental due
within the above seven-day limit, Landlord shall have the right to enter upon
the premises and place and thereafter maintain a "FOR RENT" sign in a place
where the sign would be most likely seen by the public.
20- B. In the event that, at the commencement of the term of this lease.
Tenant shall be in default in the payment of rent to Landlord pursuant to the
terms of a prior lease with Landlord or with Landlord's predecessor in
interest, Landlord may at Landlord's option and without notice to Tenant add
the amount of such arrearage to any monthly installment of rent payable
hereunder and the same shall be payable to Landlord as additional rent.
21. WRITTEN AGREEMENT. This lease contains the entire agreement between
the parties hereto and all previous negotiations leading thereto, and it may be
modified only by an agreement in writing signed and sealed by Landlord and
Tenant. No surrender of the demised premises, or of the remainder of the term
of this lease, shall be valid unless accepted by Landlord in writing.
22. INDEMNIFY LANDLORD. In consideration of said premises being leased to
tenant for the above rental, Tenant agrees: That Tenant, at all times will
indemnify and keep harmless Landlord from all losses, damage, liabilities and
expenses, which may arise or be claimed against Landlord and be in favor of any
person, firm or corporation, for any injuries or damages to the person or
property of any person, firm or corporation, consequent upon or arising from
the use or occupancy of said premises by Tenant, or consequent upon or arising
from any acts, omissions, neglect or fault of Tenant (his agents, servants,
employees, licensees, customers or invitee (, or consequent upon or arising
from Tenant's failure to comply with the aforesaid laws, statutes, ordinances
or regulations; that Landlord shall not be liable to Tenant for any damages,
losses or injuries to the person or property of Tenant which may be caused by
the acts, neglect, omissions or faults of any person, firm or corporation, and
that Tenant will indemnity and keep harmless Landlord from all damages,
liabilities, losses, injuries, or expenses, which may arise or be claimed
against Landlord and be in favor of any person, firm or corporation for any
injuries or damages to the person or property of any person, firm or
corporation, where said injuries or damages arose about or upon said premises.
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23. BANKRUPTCY. It is agreed between the parties hereto: If Tenant shall
be adjudicated a bankrupt or an insolvent and fails to have such adjudication
discharged within thirty days from the date thereof, or shall take the benefit
of any federal reorganization or composition proceeding or make a general
assignment or take the benefit of any insolvency law, or if Tenant's leasehold
interest under this lease shall be sold under any execution or process of law,
or if a trustee in bankruptcy or a receiver be appointed or elected or had for
Tenant (whether under federal or state laws), or if said premises shall be
abandoned or deserted, or if this lease or the terms hereof be transferred or
pass to or devolve upon any person, firm, officer or corporation other than
Tenant, then in any such events, Landlord may, at Landlord's option, terminate
and end this lease and re-enter upon the premises; whereupon the term hereby
granted and, at the Landlord's option, all right, title, and interest under it
shall end and Tenant shall become a Tenant at sufferance; but this shall not
impair or affect Landlord's right to maintain summary proceedings for the
recovery of the possession of the demised premises in all cases provided for by
law. If the terms of this lease shall be so terminated, Landlord may
immediately or at any time thereafter re-enter or re-possess the premises and
remove all persons and property therefrom without being liable for trespass or
damages.
24. WAIVER. The rights and remedies created by this lease are cumulative
and the use of one remedy shall not be taken to exclude or waive the right to
the use of another.
No delay or omission in the exercise of any right or remedy of
Landlord on any default by Tenant shall impair such a right or remedy or be
construed as a waiver.
The receipt and acceptance by Landlord of delinquent rent shall not
constitute a waiver of any other default; it shall constitute only a waiver of
timely payment for the particular rent payment involved.
No act or conduct of Landlord, including, without limitation, the
acceptance of the keys to the premises, shall constitute an acceptance of the
surrender of the premises, by Tenant before the expiration of the term. Only a
notice from Landlord to Tenant shall constitute acceptance of the surrender of
the premises and accomplish a termination of the lease.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not
be a waiver of any other default concerning the same or any other provision of
the lease.
25. PEACEFUL POSSESSION. Subject to the terms, conditions and covenants of
this lease, Landlord agrees that Tenant shall and may peaceably have, hold and
enjoy the premises above described, without hindrance or molestation by
Landlord. Landlord shall not interfere with Tenant's quiet enjoyment of the
demised premises.
26. RIGHT TO MORTGAGE OR LEASE. Tenant's rights shall be subject to any
bona fide mortgage which now covers said premises and which may hereafter be
placed on said premises by Landlord, or underlying lease now or later covering
the entire property.
27. HEIRS AND ASSIGNS. This lease and all provisions, covenants and
conditions thereof shall be binding upon an inure to the benefit of the heirs,
legal representatives, successors and assigns of the parties hereto, except
that no person, firm, corporation, or court officer holding under or through
Tenant in violation of any of the terms, provisions or conditions of this
lease, shall have any right, interest, or equity in or to this lease, the terms
of this lease or the premises covered by this lease.
28. BEYOND LANDLORD'S CONTROL. None of the acts, promises, covenants,
agreements or obligations on the part of the Tenant to be kept, performed or
not performed as the case may be, nor the obligation of the Tenant to pay rent
and/or additional rent or other charge or payment shall be in anywise waived,
impaired, excused or affected by reason of the Landlord being unable at any
time or times during the term of this lease to supply, or being prevented from,
or delayed in supplying heat, light, elevator service, or any other service
expressly or implied on the part of the Landlord to be supplied, or by reason
of the Landlord being unable to make any alterations, repairs or decorations or
to supply any equipment or fixtures, or any other promise, covenant, agreement
or obligation on the part of the Landlord to be performed, if the Landlord's
inability or delay shall arise by reason of any law, rule or regulation of any
Federal, State, Municipal or other governmental department, agency or
subdivision thereof, or by reason of conditions of supply and demand due to
National Emergency or other conditions or causes beyond the Landlord's control.
29. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title of possession, whichever first occurs. If more than 10% of the floor area
of the building on the Premises, or more than 25% of the land area of the
Premises which is not occupied by any building, is taken by condemnation, Lessee
may, at Lessee's option, to be exercised in writing only within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in the proportion that the floor area of the building taken bears to the
total floor area of the building situated on the Premises. No reduction of rent
shall occur if the only area taken is that which does not have a building
located thereon. Any award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of Lessor, whether such award shall
be made as compensation for diminution in value of the leasehold or for the
taking of the fee, or as severance damages; provided; however, that Lessee shall
be entitled to any award for loss of or damage to Lessee's trade fixtures and
removable personal property. In the event that this Lease is not terminated by
reason of such condemnation, Lessor shall to the extend of severance damages
received by Lessor in connection with such condemnation, repair any damage to
the Premises caused by such condemnation except to the extent that Lessee has
been reimbursed therefor by the condemning authority. Lessee shall pay any
amount in excess of such severance damages required to complete such repair.
30. SURRENDER PREMISES. Tenant agrees to surrender to Landlord, at the
end of the term of this lease and/or upon any cancellation of this lease, said
leased premises in broom-clean and tenantable condition, ordinary wear and tear
and damage by fire and windstorm or other acts of God, excepted, and subject to
the provisions of paragraph 6 hereof. Tenant agrees that, if Tenant does not
surrender to Landlord, at the end of the term of this lease, or upon any
cancellation of the term of this lease, said leased premises, then Tenant will
pay to Landlord all damages that Landlord may suffer on account of Tenant's
failure to so surrender to Landlord possession of said leased premises and will
indemnify and save Landlord harmless from and against all claims made by any
succeeding tenant of said premises against Landlord on account of delay of
Landlord in delivering possession of said premises to said succeeding tenant so
far as such delay is occasioned by failure of Tenant to so surrender said
premises.
31. LIENS. Tenant further agrees that Tenant will pay all liens of
contractors, subcontractors, mechanics, laborers, materialmen, and other items
of like character, and will indemnify Landlord against all legal costs and
charges, bond premiums for release of liens, including counsel fees reasonably
incurred in and about the defense of any suit in discharging the said premises
or any part thereof from any liens, judgements, or encumbrances caused or
suffered by Tenant. It is understood and agreed between the parties hereto that
the costs and charges above referred to shall be considered as rent due and
shall be included in any lien for rent.
The Tenant herein shall not have any authority to create any liens for labor or
material on the Landlord's interest in the above described property and all
persons contracting with the Tenant for the destructions or removal of any
building or for the erection, installation alteration or repair of any building
or other improvements on the above described premises and all materialmen,
contractors, mechanics, and laborers, are hereby charged with notice that they
must look to the Tenant and to the Tenant's interests only in the above
described property to secure the payment of any xxxx for work done or material
furnished during the rental period created by this lease.
32. PROPERTY TAX. Tenant shall pay as additional rent its proportionate
share of any increase above the 1999 levy in the Real Property Taxes and
Property Insurance assessed against the demised premises.
33. LANDSCAPE. The Tenant, at its own cost and expense, shall maintain
all portions of the leased property and adjoining areas in a clean and orderly
condition, free of dirt, rubbish and unlawful obstructions and shall keep the
landscaped areas thereof watered and trimmed during the term of this lease.
34. PROMPT PAYMENT. The prompt payment of the rent for said premises upon
the dates named, and the faithful observance of the rules and regulations
printed upon this lease, and which are hereby made a part of this covenant, are
the conditions upon which the lease is made and accepted and if the Tenant
fails to comply with the terms of said lease, or any of said rules and
regulations now in existence, or which may be hereafter prescribed by the
Landlord, then and in any of such events this lease and all of the rights of
the Tenant hereunder, at the Landlord's option, shall expire, and thereupon
the Landlord, its agents or attorneys, shall have the right to enter said
premises, and remove all persons therefrom forcibly or otherwise, and the
Tenant thereby expressly waives any and all notice required by law to terminate
tenancy, and also waives any and all legal proceedings to recover possession of
said premises.
35. CORPORATE STOCK: Within the meaning of paragraph 2 of this lease, an
assignment includes one or more sales or transfers by operation of law
or otherwise by which an aggregate of more than 50% of Tenant's shares
(in the case of a corporate Tenant) shall be vested in a party or
parties who are not shareholders as of the date of this lease. This
paragraph shall not apply in the event that Tenant's share are listed
on a recognized stock exchange or if at lease 80% of Tenant's shares
are owned by a corporation whose shares are listed on a recognized
stock exchange. For purposes of this paragraph, share ownership shall
be determined in accordance with the principles set forth in Section
544 of the Internal Revenue Code of 1986.
36. WATER DAMAGE. It is expressly agreed and understood by and between the
parties to this agreement, that the Landlord shall not be liable for any damage
or injury by water, which may be sustained by the said Tenant or other person
or for any other damage or injury resulting from the carelessness, negligence,
or improper conduct on the part of any other tenant or agents, or employees, or
by reason of the breakage, leakage, or obstruction of the water, sewer or soil
pipes, or other leakage in or about the said building.
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37. SUBORDINATION. This lease is and shall be subject and subordinate to
any and all permanent or building loan mortgages covering the fee of the leased
premises, or any other real property which includes all or any part of the
leased premises, now existing or hereafter made by Landlord and to all advances
made or to be made thereon and to all renewals, modifications, consolidations,
replacements, or extensions thereof, and the lien of any such mortgage or
mortgages shall be superior to all rights hereby of hereunder vested in Tenant,
to the full extent of the principal sums secured thereby and interest thereon.
This provision shall be self-operative and no further instrument of
subordination shall be necessary to effectuate such subordination, and the
recording of any such mortgage shall have preference and precedence and be
superior and prior in lien to this lease, irrespective of the ate of recording.
38. ESTOPPEL CERTIFICATE. Tenant, upon request of Landlord or any holders
of a mortgage against the fee, shall from time to time deliver or cause to be
delivered to Landlord or such mortgagee, within ten (10) days from date of
demand, a certificate duly execute and acknowledged in form for recording,
without charge, certifying, if true, that this lease is valid and subsisting
and in full force and effect and that Landlord is not in default under any of
the terms of this lease. Tenant further agrees to pay to Landlord, as
additional rent, an amount equal to 1/30 of one month's rent at the monthly
rental then obtaining, for each day, or any, in excess of ten days after such
demand that Tenant shall fail to deliver such a certificate as provided for in
this clause.
39. HAZARDOUS MATERIAL. Tenant shall not cause or permit to be caused,
any act or practice, by negligence, omission, or otherwise, that would
adversely affect the environment or do anything or permit anything to be done
that would violate any Federal, state and/or local law, regulation, and/or
guideline now in effect or hereafter enacted, relating to or affecting the
demised premises concerning the impact on the environment of construction, land
use, the maintenance and operation of structures and the conduct of business
and Tenant will promptly: (1) pay any claim against Tenant or the premises,
(ii) remove any charge or lien upon the premises, and (iii) indemnify and hold
Landlord harmless from any and all loss or damage resulting from any Hazardous
material that exists on or is discharged from the premises, Tenant shall have
no claim against Landlord by reason of any changes Landlord may make in the
demised premises pursuant to said laws, regulations and/or guidelines nor cause
or permit any Hazardous Material to exist on or discharge from any property
owned or used by Tenant which would result in any charge or lien upon the
premises; and Tenant shall notify Landlord of any Hazardous Material that
exists on or is discharged from the premises within ten (10) days after Tenant
first has knowledge of such existence or discharge.
40. LANDLORD'S LIABILITY. Notwithstanding any provision in this lease to
the contrary, Tenant agrees that Tenant shall look solely to Landlord's
interest under this leasehold estate in the event of any default or breach by
Landlord with respect to any of the terms and provisions of this lease on the
part of the Landlord to be performed or observed, and no other assets of
Landlord shall be subject to levy, execution, or other judicial process or
award for the satisfaction of Tenant's claim.
41. NO ARBITRARY REJECTION. References herein to "approval", "acceptable"
and "satisfactory" shall not be interpreted as justifying arbitrary rejection,
but mean a reasonable application of judgment in accordance with institutional
leasing practice and commercial custom concerning similar real estate
transactions.
42. PARTIAL INVALIDITY. If any term or provision of this lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this lease and the application of
such term or provision to persons 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 be enforceable to the
fullest extent permitted by law.
43. CAPTIONS. The captions of the paragraphs of this instrument are
solely for convenience and shall not be deemed a part of this instrument for
the purpose of construing the meaning thereof, or for any other purpose.
44. BROKER'S COMMISSIONS. Each party shall hold harmless the other party
from all damage resulting from any claims that may be asserted against the
other party by any broker, finder, or other person, with whom the other party
has or purportedly has dealt, except Easton & Associates, representing the
Landlord and Xxxxxxx & Xxxxxxxxx of Florida, Inc., representing the Tenant.
45. WAIVER OF RIGHT OF REDEMPTION. Lessee hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event of Lessee's being evicted or dispossessed for any cause, or in the
event of Lessor's obtaining possession of the Premises, by reason of the
violation by Lessee of any of the covenants or conditions of this Lease, or
otherwise. Lessor expressly reserves the right to hold Lessee in strict
default, and Lessee has no right to cure except as provided by statutory law.
46. 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.
47. WAIVER OF TRIAL BY JURY. TENANT AND LANDLORD HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INSTRUMENT, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LANDLORD LEASING THE PREMISES TO THE
TENANT.
48. NOTICES. All notices, elections, demands, requests and other
communications hereunder shall be in writing, signed by the party making the
same and shall be sent by certified or registered United States mail, postage
prepaid, addressed as follows:
To Landlord: Fundamental Xxxxxxx Easton No. 11, Inc. or FHE #11
C/O Easton & Associates, 000 Xxxxx Xxxxxx, Xxxxx
Xxxxxx, XX 00000
To Tenant: At the premises as set forth on the first page of
this Lease.
Or at such other address as may hereafter be designated in writing by either
party hereto. Three days after the time and date on which mail is postmarked
shall be the time and date on which such communication is deemed to have been
given, unless a return receipt indicates another date.
49. OPTIONS. Landlord agrees to grant to Tenant a 1 (one), five (5) year
term for renewal at the termination of this Lease Agreement. This option will
be subject to the same terms and conditions as contained herein with the
following exception of the rental rate: there will be 3% annual increase over
the rental rate for the remaining term of said option period. Tenant must
notify Landlord, in writing, of his intention to exercise this option at
least (60) days prior to the expiration of the initial term of this Lease
Agreement.
50. TENANT IMPROVEMENTS: Landlord shall provide the following
improvements, at Landlord's sole cost and expense:
- Provide for renovation of the existing office area as discussed with you
today; i.e. removal of approximately 50% of the existing area as shown on
the floor plan attached.
- Provide the two (2) 20' wide by 18' high steel roller, power operated door,
with plastic strip insulation on the inside. This door to be located on the
east end of the demised space.
- Provide for all necessary items as may be required by municipal code
regulations.
- Warehouse floors to be cleaned. Interior walls and ceiling area to be
pressure cleaned.
- Insulate all wall areas above concrete curtain wall at the east and west end
of the building.
- Raise existing lighting where necessary to 28' high.
- All improvements shall be fully permitted by local jurisdictional
authorities as deemed appropriate and applicable to tenant's improvements.
NOTE: Landlord shall be responsible only for the Tenant improvement work as
outlined in Paragraph 50. All other improvements will be at Tenant's sole cost
and responsibility.
IN WITNESS WHEREOF. The parties hereto have signed, sealed and delivered this
lease at Miami, Florida, on the day and year first above written.
Witnesses as to Landlord: LANDLORD
By:
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By:
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Witnesses as to Tenant: TENANT
/s/ By: /s/
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By:
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