EXHIBIT 10.10
EQUIPMENT LEASE
THIS AGREEMENT made and entered this ____ day of August, 1994, by and
between STAR TRAX, INC., a __________________ corporation, having its principal
business address at 0 Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000,
(hereinafter referred to an "Lessor"), and MAGIC PROMOTIONS, INC., a
_________________ corporation, having its principal business address at 0000
Xxxxxxx Xxxx, Xxxxxxx, Xxxx 00000, (hereinafter referred to an "leesee"), and is
for the commercial use and lease of certain personal property more fully
described herein.
WHEREAS, Lessor owns, holds, and lawfully possesses a motor vehicle
commonly known an a bus, more fully described as a 1991 Eagle, VIN
lEUBN8B12LB070371 and a motor vehicle commonly known a bus, more fully described
an a 1987 MCI, VIN lM8FDM9A2HP04168, which buses, together with any replacement
parts, additions, repairs and accessories incorporated therein and/or affixed
thereto, are hereinafter collectively referred to as the "Equipment"; and
WHEREAS, Lessor desires to lease the Equipment to Lessor on
the terms and conditions net out herein; and
WHEREAS, Lessee desires to lease the Equipment from Lessor on the terms
and conditions set forth herein.
NOW, THEREFORE, Lessee agrees that upon Lessor's acceptance hereof,
Lessee shall be bound by and shall comply with all the "Terms and Conditions of
Lease" set out below.
TERMS AND CONDITIONS OF LEASE
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor,
the Equipment on the following terms:
1. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES THAT THE
EQUIPMENT IS OF A SIZE, DESIGN, TYPE AND MANUFACTURER SELECTED BY LESSEE, THAT
LESSOR IS NOT A MANUFACTURER THEREOF OR A DEALER THEREIN, NOR IS LESSOR AN AGENT
OF A MANUFACTURER THEREOF NOR A DEALER THEREIN, THAT LESSEE LEASES THE EQUIPMENT
AS-IS AND THAT LESSOR HAS NOT MADE AND DOES NOT HEREBY MAKE ANY AGREEMENT,
REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION,
QUALITY OR SUITABILITY OF THE EQUIPMENT IN ANY CONNECTION THEREWITH, OR FOR THE
PURPOSES AND USES OF LESSEE OR ANY OTHER AGREEMENT, REPRESENTATION OR WARRANTY
OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, IT
BEING AGREED THAT ALL SUCH RISKS ARE TO BORNE BY LESSEE. LESSEE FURTHER
ACKNOWLEDGES AND AGREES THAT LESSOR SHALL NOT ASSUME ANY LIABILITY FOR ANY
REPRESENTATION OR WARRANTY OF ANY KIND OR CHARACTER EXPRESS OR IMPLIED, WITH
RESPECT TO THE EQUIPMENT, MADE AT ANY TIME BY THE MANUFACTURER OR SUPPLIER
THEREOF.
2. TERM OF LEASE. This Lease shall become effective on the execution
hereof by Lessor and the term of this Lease shall be for a period of twelve (12)
months commencing September __, 1994, and ending at Midnight on September __,
1995.
3. PAYMENT OF RENT. Lessee shall pay to Lessor the total rental
amount of One Hundred Eight Thousand Eight Hundred Fifty-two and 00/100 Dollars
($108,852.00) on the following schedule: First and last month' Q rent of
Eighteen Thousand One Hundred Forty-two and 00/100 Dollars ($18,142.00) shall be
due upon the acceptance of this Lease by Lessor. Thereafter, and commencing on
October 1, 1994, Lessee shall pay to Lessor the monthly rental of Nine Thousand
Seventy-one and 00/100 Dollars ($9,071.00) plus all other charges due under this
Lease, on the first day of each month until all rent due hereunder has been
paid. Lessor shall deliver the Equipment to Lessee at the open of business on
September 1, 1994.
4. NON-CANCELABLE LEASE. This Lease cannot be canceled or terminated
except as expressly provided herein.
5. UNIFORM COMMERCIAL CODE FINANCING STATEMENTS. At the request of
Lessor, Lessee will join Lessor in executing Financing Statements pursuant to
the Uniform Commercial Code. Lessee authorizes Lessor and Lessor's assignee and
each subsequent assignee to file a Financing Statement signed only by Lessor or
such assignee in all places where Lessor or maid assignee deems it necessary to
protect its interests.
6. OPTION TO PURCHASE EQUIPMENT. So long as Lessee shall not be in
default hereunder, Lessee "hall have the option to purchase the Equipment hereby
leased at the expiration of this Lease for the sum of Three Hundred Twelve
Thousand Three Hundred Forty-seven and 88/100 Dollars ($312,347.88), plus
applicable taxes, if any. To exercise maid option, Lessee shall notify Lessor,
in writing, thirty (30) days prior to the expiration of the term of this Lease
of its intention to so purchase. Lessee shall also have the option to purchase
the Equipment during the first thirty (30) days of this Agreement for the price
of Three Hundred Ninety Thousand and 00/100 Dollars ($390,000.00). In the event
of such a purchase, this Lease shall be canceled and the rent due hereunder
shall be pro-rated. The purchase price shall be paid in clear funds upon the
expiration of this Lease.
7. MAINTENANCE OF CLEAR TITLE. Lessee may do nothing to encumber or
jeopardize Lessor's title in the equipment, including, but not limited to, any
pledging or encumbrance, or hypothecation of any Equipment to any bank, lender,
or other entity.
8. SURRENDER. At the expiration of this Lease if Lessor does not
exercise its option to buy the Equipment, or upon demand by Lessor made pursuant
to Paragraph 18 hereof (DEFAULT), Lessee at its expense shall return the
Equipment to Lessor in good working condition and repair, reasonable wear and
tear excepted, by delivering it to such place or on board such carrier as Lessor
may specify.
9. LESSOR'S INSPECTIONS; LABELS. Lessor shall have the right to label
or identify the Equipment in a conspicuous manner indicating Lessor's ownership
of the Equipment. Lessor shall have the right to inspect Equipment at any time,
with reasonable notice to the Lessee.
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10. REPAIRS AND MAINTENANCE; USE; ALTERATIONS. Lessee, at its sole
expense, shall keep Equipment in good working condition, repair, maintenance,
and furnish all labor, parts, mechanisms and devices required therefor. Lessee
shall use Equipment in a careful and lawful manner. Lessee shall not make any
alterations, additions or improvements to Equipment without Lessor's prior
written consent. All additions and improvements made to Equipment shall belong
to Lessor and shall not be removed without Lessor's prior written consent;
provided, however, that Lessor consent shall not be required for repairs or
routine maintenance to the Equipment by Lessee.
11. INSURANCE. Lessee shall, during the term of this Lease, purchase,
maintain and pay all premiums for (a) insurance against lose, theft, destruction
or damages of the Equipment, and all items thereof, in an amount not lens than
the full costs of replacement or cost of new or comparable Equipment; and (b)
insurance against any liability for harm to property or human life or liability
in an amount of no less than Five Million and 00/100 Dollars ($5,000,000.00).
All insurance shall be with companies and in a form acceptable to Lessor. The
proceeds under thin insurance shall be payable to the Lessor under Raid policy
or policies of insurance, and Lessee shall deliver the policies of insurance to
Lessor.
Upon the signing of this lease, Lessee shall instruct his insurance
agent, broker or company to confirm to the Lessor in writing that the necessary
insurance has been bound, and inform the Lessor of the names of the insurance
company binding this insurance, the amount of insurance and the full description
of coverage; and within thirty (30) days after the delivery date forward to the
Lessor the insurance policy or policies.
If the Lessee faire to purchase and maintain insurance in accordance
with the terms of this Lease, the Lessor shall have the right, but shall not be
obligated, to effect such insurance and to pay the premiums for name. On Lessees
failure to procure such insurance or provide evidence of same to Lessor, Lessor
has the right but not the obligation to procure insurance at Lessee's expense.
12. RISK OF LOSS. Lessee shall bear the entire risk of loss, theft,
destruction or damage of the Equipment, or any item thereof, (herein "Loss or
Damage") from any cause whatsoever. In the event of Loss or Damage, Lessee shall
notify Lessor of said Lose or Damage in writing, certified mail, return receipt
requested, within ten (10) days from the date of said Loss or Damage. Further,
in the event of such Loss or Damage to any item of Equipment, Lessee shall
replace the name with like Equipment in good condition and repair and with clear
title thereto in Lessor.
13. LIENS; TAXES. Lessee shall pay as directed by Lessor or reimburse
Lessor upon demand for all taxes, including but not limited to Xxxxx and use
taxes (exclusive of Federal and State taxes based on Lessor's net income, unless
such net income taxes are in substitution for or relieve Lessee from any taxes
which Lessee would otherwise be obligated to pay under the terms of this
paragraph 13), fees, charges and assessments, whatsoever, however
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designated, whether based on the rent or levied, assessed or imposed upon the
Equipment or upon or in respect of the manufacture, purchase, delivery,
ownership, leasing, use, return or other disposition of the Equipment, now or
hereafter levied, assessed or imposed under the authority of a federal, state or
local taxing jurisdiction, regardless of when and by whom payable. Lessor may,
in its discretion, prepare and file any and all returns required in connection
with the obligations which Lessee has assumed under this paragraph 13. Lessor
shall upon request furnish Lessee a copy of any much filing or any governmental
invoice issued covering such obligations.
14. LESSOR'S PAYMENT. Lessee agrees to reimburse, in full,
Lessor for the cost of maintaining said insurance referred to in paragraph 11,
in the event that Lessor consents to advance any insurance premium, as provided
in paragraph 11, and Lessee further agrees to reimburse, in full, Lessor for the
cost of discharging said taxes, referred to in paragraph 13, in the event that
Lessor consents to advancing such taxes, in cash within fifteen (15) days
following the date of actual payment of said insurance premiums or taxes.
15. INDEMNITY. Lessee shall indemnify Lessor and save Lessor
harmless from any and all liability, loss, damage, expense, causes of action,
suite, claims or judgments arising from injury to person or property resulting
from or based upon the actual or alleged use or operation of any and all of the
Equipment or its location or condition; and shall, at Lessee's own cost and
expense, defend any and all suits which may be brought against Lessor, either
alone or in conjunction with others, upon any such liability or claim or claims.
Lessee shall satisfy, pay and discharge any and all judgments and fines that may
be recovered against Lessor in any such action or actions, provided, however,
that Lessor shall give Lessee written notice of any such claim or demand.
16. ASSIGNMENT; OFFSET. Without Lessor's prior written consent,
Lessee shall not (a) assign, transfer, pledge, hypothecate, or otherwise dispose
of this leasehold interest in said Equipment or any item thereof, or (b) sublet
or lend said Equipment or permit it to be used by anyone other than Lessee or
Lessee's employees.
All rights of Lessor hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without notice
to Lessee but always, however, subject to the rights of Lessee under this Lease.
If Lessee is given notice of such assignment, it agrees to acknowledge receipt
thereof in writing. Lessee agrees that Lessor's interest in the Equipment may be
made subject to a security interest and that the secured party' e right, title
and interest in thin Lease to the rental payments provided herein in and to the
Equipment, shall be free from all defenses, set-offs or counter-claims of any
kind or character which Lessee may be entitled to assert against Lessor.
Notwithstanding any such assignment, Lessor warrants that Lessee shall quietly
enjoy use of the Equipment subject to the terms and conditions of this
Agreement. Subject to the foregoing, this lease inures to the benefit of and is
binding upon the heirs, legatees, personal representatives, successors and
assigns of the parties hereto.
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17. DELINQUENCY CHARGE. Should Lessee fail to pay any part of the rent
herein reserved or any other amount required to be paid to Lessor by Lessee
within three (3) days after the due date thereof, Lessee shall pay to Lessor a
late charge for internal collection costs as a service charge and interest on
such delinquent payment at the rate of five percent (5%) of such payments as are
late, but in no event shall the service charge and interest for such delinquency
be less than twenty-five dollars ($25.00).
18. DEFAULT. If Lessee shall fail to pay any rent or any other amount
herein provided for within three (3) days after the same becomes due and
payable, or if Lessee fails to perform any other provision hereof within three
(3) days after Lessor shall have demanded in writing performance thereof, or if
Lessee shall abandon the Equipment, or if any proceeding in bankruptcy,
receivership, or insolvency shall be commenced by or against the Lessee, or its
property, voluntary or involuntary, or if Lessee makes an assignment for the
benefit of creditors or if Lessee makes any misrepresentation or false statement
as to Lessees credit or financial standing in connection with the execution of
this Lease, or if an attachment or execution be levied upon any of Lessee' B
property, or if Lessee permits any other entity or person to use the said
Equipment without the prior written consent of Lessor or if Lessee defaults
under any term or condition of any other lease or contract subsequently entered
into between the parties hereto, all such events described in this paragraph are
hereinafter referred to as "default". Lessor shall have the right, but shall not
be obligated to exercise any one or more of the following remedies, which
remedies or any of them may be exercised by lessor without notice to Lessee:
(A) ACCELERATION. To declare all rent and other amounts then due or to
become due hereunder immediately due and payable and pursuant to such
acceleration to immediately recover all of such rents or other amounts then due
or to become due hereunder.
(B) RECOVERY OF SUMS DUE OR TO BECOME DUE. In lieu of acceleration,
Lessor may recover all rents and other amounts due as of the date of such
default and recover all rents and other sums that may accrue thereafter up to
and including the date of trial or judgment.
(C) REPOSSESSION. In the event of default under this Lease, as
described in Paragraph 18 above; Lessor shall be entitled to take immediate
possession of the Equipment. Lessor may enter upon Lessee's premises and may
take possession of any or all of the Equipment wherever it may be located,
without demand or notice, without any court order or other process of law and
without incurring any liability to Lessee for any damages occasioned by such
taking of possession. Any such repossession shall not constitute a termination
of this Lease unless Lessor so notifies Lessee writing. Lessor may require
Lessee in such event to assemble the Equipment and return it to Lessor at a
place to be designated by Lessor which is reasonably convenient to lessor or
Lessee. Lessor shall attempt to use reasonable means to release said Equipment
at such rental and upon such terms and conditions as Lessor's sole discretion
deems reasonable, or may sell or attempt
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to sell the Equipment at public or private sale for cash or on credit at such
price and upon such terms as Lessor in it sole discretion deems reasonable. Any
attempts on the part of Lessor to release or sell the Equipment shall not be
deemed either a waiver of or the exercises of Lessors right to accelerate all
sums due or to become due under this Lease as provided for above.
(D) LESSEE'S LIABILITY FOR REMAINING UNPAID RENTS. In the event of such
releasing of the Equipment, or any item thereof, and/or the sale of the
Equipment, or any item thereof, Lessee shall forthwith pay to Lessor any unpaid
rents remaining, which unpaid rent be shall be computed as follows:
The total of the rent for all items of Equipment which were released from date
of release to "Expiration Date of Lease", and the total of the rent for all
items of Equipment which were sold, from date of sale to "Expiration Date of
Leases; PLUS any other sums due pursuant to any other provisions of this Lease;
PLUS all costs of collection, including but not limited to repossessing,
transporting, and storing said Equipment; PLUS reasonable attorneys fees if
services of an attorney are utilized hereunder; PLUS all costs of repairing,
reconditioning, reselling or selling the Equipment; PLUS an other costs of
collection, including but not limited to reasonable commissions paid or payable
to Lessor's employees or agents for releasing or selling the Equipment; PLUS any
other costs of collection; LESS: (a) the total rentals to be received under any
lease covering the releasing of the Equipment during the balance of the existing
term of this lease; and (b) the proceeds from said sold Equipment less the
Lessor's anticipated value of said Equipment estimated as of the date of
expiration of this Lease. In the event the Equipment is disposed of by any
installment Agreement or by any releasing of the Equipment, or by successive
purchasers or lessees, none of such resales or releases shall release Lessee
from liability under this Lease, including Lessee's liability for any unpaid
rents as computed under this Lease.
(E) NO TERMINATION. Any repossession of the Equipment by Lessor or any
other action by Lessor under this paragraph shall not constitute a termination
of Lessee's obligations under this Lease unless Lessor so notifies Lessee in
writing and unless Lessor so terminates this Lease. Lessee shall remain liable
for the full performance of any and all of its obligations hereunder, including
but not limited to Lessee's obligation to pay rent and other amounts required
under this Lease.
19. WHERE MORE THAN ONE LESSEE HAS SIGNED THIS AGREEMENT. Whether as
co-lessee, guarantor or otherwise, liability hereunder shall be joint and
several and Lessor or its assigns may with the consent of any one of the Lessees
hereof, modify, extend or change any of the terms hereof without the consent or
knowledge of the others, without in any way releasing, waiving or impairing any
rights granted Lessor against such others.
20. LESSOR'S GENERAL RIGHT OF SET OFF. Lessor may hold and apply any
money, property or instruments of the Lessee or any one of them which Lessor has
or which may come into its possession and may apply, credit or off-set the same
against any amounts owing by
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the Lessees or any one of them to Lessor. Any monies, debts or other obligations
owed by the Lessees, or any one of them, to Lessors for any reason whatsoever
whether arising out of this Lease or otherwise shall be the joint and several
obligation of all of the Lessees hereunder and all such payments shall be made
by the Lessees to the Lessors in cash from their own separate funds.
21. NOTICES. Any written notice or demand under this Agreement must be
given to Lessor or Lessee by mailing it to the respective party at its address
set forth therein, or at such address as the party may provide in writing from
time to time by certified mail, return receipt requested. Notice or demand so
mailed shall be effective when deposited in the United States mail, duly
addressed and postage prepaid.
22. OWNERSHIP. Title to the Equipment shall at all times remain in
Lessor. Replacements, additions, repairs or alterations made to or placed in or
upon the Equipment shall become a component part thereof and title therein shall
immediately vest in Lessor and shall be included under the terms and provisions
of this Lease. The Equipment shall always remain and shall be admitted to be
personal property, even though attached to realty.
23. GOVERNING LAW. This Lease shall be governed and construed in
accordance with the laws of the State of Florida. The parties agree that any
action arising under their Agreement shall be tried in Hillsborough County,
Florida.
24. CONSENT TO JURISDICTION. Lessee consents to the exclusive
jurisdiction of the courts of the State of Florida in any and all actions and
proceedings between the parties hereto arising under or growing out of this
Lease and irrevocably agrees to service of process by any means authorized under
Florida law.
25. MISCELLANEOUS. This Lease shall be deemed to have been entered into
at the offices of Lessor in Florida and all performance on the part of Lessee,
including the payment of all sums due hereunder, shall be deemed to have been
required to be performed by Lessee at the offices of Lessor in Florida. Time is
of the essence of this Lease. Whenever the singular is used herein the plural is
included if applicable.
26. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect the other provisions which can be given effect
without the invalid provision and to this end the provisions of this Lease are
declared to be severable.
27. EXPENSES OF ENFORCEMENT. Lessee shall pay to Lessor all costs and
expenses, including reasonable attorney=, fees and fees of collection agencies,
incurred by Lessor in exercising any of its rights or remedies hereunder or in
enforcing any of the terms or provisions hereof.
28. ENTIRE AGREEMENT - WAIVER. This instrument, together with other
written instruments, documents, or other Agreements executed by the parties
hereto which refers to and/or secures the performance of this rental Agreement,
constitutes the entire Agreement between Lessor and Lessee with respect to the
Equipment
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only, and it shall not be amended, altered or changed except by written
Agreement signed by lessor and any one Lessee hereto. Waiver by Lessor of any
provision hereof in any instance shall not constitute a waiver as to any other
instance.
29. AUTHORIZATION OF TRANSMITTEE. It is hereby agreed by and between
all the parties hereto that any delivery or installation of Equipment,
acceptance of said Equipment, rendering of any statement, invoice or demand for
payment or reimbursement by Lessor to any co-lessee) hereinafter referred to as
"Transmitted") shall be deemed as being made to or for all other Lessees and
Lessee hereby authorizes Transmittee to accept all deliveries and installations
of said Equipment and to acknowledge receipt for said Equipment in good
condition and repair.
30. APPLICABILITY. Lessor shall have the right at any time and
without notice to make this Lease applicable to any goods or services leased by
the Lessor to the Lessees, or any one of them or to any other person, firm,
partnership, or corporation in which any of the Lessees have any interest
whatsoever (except mere ownership of stock in a publicly owned corporation) or
which Lessees or any one of them may be an officer.
31. TIME OF ESSENCE. With respect to all provisions of this Lease, time
shall be of the essence.
32. STATEMENTS OF FINANCIAL CONDITION. Lessor may require from time to
time, and Lessee agrees to furnish, statements setting forth the financial
condition of operation of Lessee.
33. CONSEQUENTIAL DAMAGES. Lessee agrees that Lessor shall not be
liable for any consequential damages resulting from any cause whatsoever
including but not limited to the failure of Lessor to deliver any item of said
Equipment.
IN WITNESS WHEREOF, the undesigned have executed this Agreement on this
____ day of ________________________, 1995.
LESSOR: D&E ENTERPRISES
C.B.B.A., INC.
By:
--------------------------- -----------------------------
Witness Xxxxxx X. Xxxxxxxx,
President C.B.B.A., Inc.
By:
--------------------------- ------------------------------
Witness Xxxxx Xxxxxxx, M.D.,
President, D&E Enterprises
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LESSEE: MAGIC PROMOTIONS,
INC.
By:
--------------------------- ---------------------------
Witness Xxx Xxxxx, President,
Magic Promotions
By:
-------------------------- ---------------------------
Witness Xxx Xxxxxxxx, Vice
President, Magic Promotions
By:
-------------------------- ---------------------------
Witness Xxxxx Xxxxxxx, Vice
President, Magic Promotions
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