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Exhibit 10.23
Prepared by
Xxxxxxx Xxxxxx
Attorney #0000
000 X. Xxxxx Xxxxxx - P.O. Box 491
Trenton, Tn. 38382-0491
000-000-0000
LEASE
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This agreement made and entered into this the 4th day of September, 1997,
by and between THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF TRENTON,
TENNESSEE, hereinafter referred to as LESSOR, and Earth Care Products of
Tennessee, Inc., a corporation authorized to do business in the State of
Tennessee, hereinafter referred to as LESSEE,
WITNESSETH:
That subject to the terms and conditions hereinafter set forth, Lessor
does hereby lease unto Xxxxxx and said Xxxxxx does hereby accept as Lessee of
Lessor the property described on Exhibit A, being designated as 000 Xxxxxxxxxx
Xxxx Xxxxx, and in the City of Trenton, 7th Civil District of Xxxxxx County,
Tennessee.
THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE AS FOLLOWS:
1. Lessor and Xxxxxx mutually agree that the primary term of the lease
shall be 61 months, beginning the first day of September, 1997, and
ending the last day of September, 2002. The monthly lease payment
shall be equal to a mortgage payment based on $675,000.00 purchase
price at 9% for 180 months, or $6,846.33 per month. The first lease
payment is waived by Lessor. The next three (3) monthly payments will
be credited from the funds which Xxxxxx has deposited in escrow with
the Board. Lessee's first actual payment under the lease will be due
on or before January 1, 1998.
2. Xxxxxx agrees that, at the conclusion of the lease term set out in
paragraph 1 above, Xxxxxx shall have the option to renew this lease
for an additional five (5) year term. The monthly lease payment for
the five (5) year term shall be equal to $675,000.00 amortized over
180 months at New York Prime plus 1/2 percent. New York Prime is
defined as the highest prime rate published in the Wall Street Journal
on the date the lease term described in paragraph 1 expires. Xxxxxx
agrees to give written notice of its intent to exercise its option on
or before the 30th day of June, 2002.
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3. Xxxxxx agrees that, at the conclusion of the lease term set out in
paragraph 2 above, Xxxxxx shall have the option to renew this lease
for an additional five (5) year term. The monthly lease payment for
the five (5) year term shall be equal to $675,000.00 amortized over
180 months at New York Prime plus 1/2 percent. New York Prime is
defined as the highest prime rate published in the Wall Street Journal
on the date the lease term described in paragraph 2 expires. Xxxxxx
agrees to give written notice of its intent to exercise its option on
or before the 30th day of June, 2007. As long as Lessee is not in
default, notwithstanding anything to the contrary, in the event Lessee
exercises the option to extend the lease term through September 1,
2012 pursuant to this paragraph, then title and ownership to the
premises shall vest automatically in the Lessee as of September 1,
2012 and Lessor will fully cooperate in executing any documents
necessary to document unencumbered title and ownership to Lessee as of
such date.
4. Xxxxxx further agrees that Xxxxxx shall have the option to purchase
the property described in Exhibit A. The final purchase price shall be
$675,000 less all principal payments made during the term of the Lease
based upon the mortgage amortization as described in paragraphs 1
through 3. The exact amount will be determined on a per diem basis
figured to the date of payment. All lease payments made by Lessee
shall be deducted from the original purchase price on an amortized
basis; i.e., the principal portion of Lessee's payment shall reduce
the purchase price.
5. Xxxxxx agrees that, in the event Lessee does not exercise its
purchase option pursuant to paragraph 4, it will, at the expiration of
the lease term or any extensions or renewals thereof, deliver said
property into the possession of Lessor in as good condition as the
same now is, ordinary wear and tear excepted.
6. Lessee shall have the right to assign this agreement or sublet the
premises only with the prior written permission of Lessor, which shall
not be unreasonably withheld. Notwithstanding anything to the
contrary, Lessee may assign or sublet this lease without the consent
of Lessor in the event Lessee makes such assignment or subletting to
any of its parents, subsidiaries, or
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At the conclusion of Xxxxxx's occupancy of the premises, Xxxxxx agrees
to obtain at its expense an environmental assessment by a certified
environmental consulting and engineering firm to determine Xxxxxx's
liability, if any.
13. If ten percent (10%) or more of the improvements are condemned
or taken in any manner (including without limitation any conveyance in
lieu thereof) for any public or quasi-public use, Lessee may terminate
this Lease if it determines in the exercise of its discretion, that
the restoration or continued operation of the Improvements would not
be economic. If a portion of the Land (but not the Improvements) is
condemned or taken resulting in that the use of the Improvements is
significantly and adversely affected thereby, then Lessee may
terminate this Lease. Lessee shall notify Lessor of Xxxxxx's election
to terminate the Lease as provided herein within sixty (60) days after
being notified of such condemnation or taking.
If this Lease is not terminated following such a condemnation or
taking, Xxxxxx, as soon as reasonably practicable after such
condemnation or taking and the determination and payment to Lessee of
the award on account thereof, shall restore the Improvements to an
architectural unit as nearly like its condition prior to such taking
as shall be practicable; provided however the Lessee shall not be
obligated to expend any sums in excess of that awarded to Lessee
pursuant to any condemnation proceeding or taking.
14. Lessee hereby covenants and agrees that if a default shall be made in
the payment of rent or if Lessee shall violate any of the covenants of
this lease, then Lessee shall become a Lessee at sufferance, and upon
thirty (30) days' notice or demand Lessor shall be entitled to
re-enter and re-take possession of the premises if default is not
cured to Lessor's reasonable satisfaction. In the event of litigation
on any matter pertaining to collection of rents or enforcement of any
of the covenants or agreements herein,the prevailing party shall be
entitled to court costs and attorney's fees.
15. Xxxxxx agrees that at all times when Xxxxxx is not in default under
the provisions and during the term of this Lease, Xxxxxx's quiet and
peaceable
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enjoyment of the Premises will not be disturbed or interfered with
by Lessor or any person claiming by, through, or under the Lessor.
16. This lease shall be construed and enforced in accordance with the
laws of the State of Tennessee.
17. If any provision of this lease shall be determined by any court to be
invalid, illegal or unenforceable to any extent, then the remainder of
this lease shall not be affected, and this lease shall be construed as
if the invalid, illegal or unenforceable provision had never been
contained in this lease.
18. Xxxxxx agrees that this Lease will be subject and subordinate to any
present or future mortgage encumbering the Premises and all renewals
and extensions thereof, subject to the terms of this Section 18. The
Lessor agrees to deliver Xxxxxx simultaneously with the execution of
this Lease and thereafter simultaneously with the creation of any
mortgage by Xxxxxx, as a condition of this Lease, a Subordination,
Nondisturbance and Attornment Agreement substantially in the form of
Exhibit "B" attached hereto, signed by Xxxxxx and its mortgagee, which
will subordinate Xxxxxx's interest hereunder to the interest of any
mortgagee holding a mortgage lien upon the Premises subject to the
nondisturbance provisions contained therein. Xxxxxx agrees to execute
and deliver the same agreement to Xxxxxx.
19. Lessor, within twenty (20) days after request (at any time or times)
by Xxxxxx, will execute and deliver to Lessee, an estoppel
certificate, in form acceptable to Lessee, certifying; (i) to the
Commencement Date and expiration dates of the Term; (ii) that this
Lease is unmodified and in full force and effect, or is in full force
and effect as modified, stating the modifications; (iii) that Lessor
does not claim any right of setoff, or listing such right of setoff,
(iv) to the amount of rent and other sums due hereunder as of the date
of the certificate, the date to which the rent and other sums have
been paid in advance, and the amount of any prepaid rent; and (v) such
other matters as may be reasonably requested by Xxxxxx. Any such
certificate may be relied on by any prospective purchaser, mortgagee,
assignee or sub-Lessee of the Premises or any part thereof.
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20. In the event Lessee is prohibited by a court of competent
jurisdiction from moving its operation from Sharon, Tennessee, to the
property which is the subject of this lease, Lessee will have the
right to terminate this agreement. However, Xxxxxx agrees to post any
bond such court may require, to undertake all necessary measures to
fulfill Lessee's obligations under this lease, and to exercise its
right to terminate only as a last resort.
IN WITNESS WHEREOF, the parties have executed this lease in duplicate on the
date first above written.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF TRENTON, TENNESSEE
By: /s/ Xx Xxxxxx
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Xx Xxxxxx, President
ATTEST:
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Secretary
XXXXXX
EARTH CARE PRODUCTS OF TENNESSEE, INC.
By: /s/ [ILLEGIBLE]
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President
ATTEST:
/s/ [ILLEGIBLE]
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Secretary
LESSEE
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STATE OF TENNESSEE
COUNTY OF XXXXXX
Before me, the undersigned Notary Public of the state and county
mentioned, personally appeared XX XXXXXX AND XXXXX XXXXX, with whom I am
personally acquainted or proved to me on the basis of satisfactory evidence,
and who, upon oaths, acknowledged themselves to be the President and Secretary,
respectively, of THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF TRENTON,
TENNESSEE, the within named bargainor, a corporation, and that they as such
President and Secretary extcuted the foregoing instrument for the purposes
therein contained, by personally signing the name of the corporation by the
said XX XXXXXX as President, and attesting the same by the said XXXXX XXXXX as
Secretary.
Witness my hand and notarial seal, this 28th day of August, 1997.
/s/ Xxxxx X. Xxxxxxx
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NOTARY PUBLIC
My commission expires:
5-13-2001
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STATE OF FLORIDA
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COUNTY OF PALM BEACH
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Before me, the undersigned Notary Public of the state and county
mentioned, personally appeared Xxxx Xxxxxxxxx, AND Xxxxx Xxxxxxx with whom I am
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personally acquainted or proved to me on the basis of satisfactory evidence,
and who, upon oaths, acknowledged themselves to be the President and Secretary,
respectively, of U.S. PLASTIC LUMBER, CORPORATION, d/b/a EARTH CARE PRODUCTS
the within named bargainor, a corporation, and that they as such President and
Secretary executed the foregoing instrument for the purposes therein contained,
by personally signing the name of the corporation by the said Xxxx Xxxxxxxx, as
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President, and attesting the same by the said Xxxxx Xxxxxxx as Secretary.
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Witness my hand and notarial seal, this 4th day of September, 1997.
Notary Seal Xxxxx X. Xxxxxx
My Commission CC632503 /s/ Xxxxx X. Xxxxxx
Expires March 24, 2001 ------------------------
NOTARY PUBLIC
My commission expires:
3/24/2001
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EXHIBIT A
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Beginning at a point in the south property line of the Xxxxxx County
Fairgrounds, same point situated 368.09 feet from the east margin of the West
Tennessee Railroad; thence north 89 degrees 35' 39" east with the south line of
the Xxxxxx County Fairgrounds property for a distance of 700.25 feet to a point
in the right of way of a curve in an asphalt street named Industrial Drive
(properties of the curve are: included angle 62 degrees 56' 3", radius 326.48
length 358.61 feet); thence south 29 degrees 28' 01" west for a chord distance
of 340.85 feet; thence south 2 degrees 00' 00" east with the west margin of
Industrial Drive for a distance of 499.11 feet; thence south 88 degrees 00' 00"
west cutting a new line through the City of Trenton's Industrial Park for a
distance of 522.0 feet to a point; thence north 2 degrees 00' 00" west cutting
a new line through the City of Trenton's Industrial Park for a distance of
810.93 feet to the point of beginning, and containing 10.00 acres.