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TRIPLE NET LEASE
0000 XXXXX 0, X. XXXXXXXXX XXXX
XXXXXXX XXXXX, XXXXXXX 00000
THIS LEASE IS MADE AS OF THE 1ST DAY OF FEBRUARY, 1999, BY AND
BETWEEN JMA INVESTMENT, INC. THE ADDRESS OF WHICH IS 0000 X. XXXXXXXXX XX XXXXX
0, XXXXXXX XXXXX, XX. 00000, AS LESSOR, AND DELTA RECYCLING CORP., ADDRESS OF
WHICH IS 2075, SUITE 1, N. POWERLINE ROAD, POMPANO BEACH, FL. 33069, AS LESSEE.
IN CONSIDERATION OF the rents to be paid and the mutual covenants,
promises, and agreements herein set forth, Lessor and Lessee agree as follows:
Lessor hereby leases unto Lessee the building premises situated in the
City of Pompano Beach, County of Broward, State of Florida, in an industrial
area commonly known as COPANS POWERLINE INDUSTRIAL CENTER, ALSO described on
exhibit "A", Tract "A", of plat recorded as Capital Industrial Park, Plat Book I
1 6, Page 49, hereafter referred to as premises.
SECTION 1
TO HAVE AND HOLD FOR A TERM OF THREE (3) YEARS FROM AND AFTER THE
COMMENCEMENT OF THE TERM OF THIS LEASE WHICH SHALL BEGIN ON THE 1ST DAY OF
FEBRUARY, 1999 AND SHALL CONTINUE THROUGH THE 31ST DAY OF JANUARY, 2002.
Notwithstanding the terms of this Section immediately set forth above.
Lessee shall have the option to extend this lease for (1) added
consecutive term of (3) three years provided Lessee is not in default under any
of the terms of this Lease. This option may be exercised by the Lessee by giving
written notice thereof to the Lessor by hand delivery or certified mail, return
receipt requested, at least 90 days prior to termination of each term of this
Lease. For each of the Three years of the option period(s), the minimum net
rental as defined in 3.01 and 3.02 of this Lease, shall be the minimum net
rental for the immediate preceding year plus $.42 per square foot annually
(3,960 X .42) to be paid as set forth in Section 3.01 and all other applicable
sections.
SECTION 1.01: The leased premises shall consist of a masonry), building
exterior of approximately 3,960 square feet, (99' across by a depth of 40').
SECTION 1.02: The exterior portion of the exterior wars and the roof of
the leased premises and the area beneath said premises are not demised
hereunder, and the use together with the right to install, maintain, use, repair
and replace pipes, ducts, conduits, wires, structural elements leading through,
over or under the leased premises in locations which will not materially
interfere with Lessee's use hereof and serving other parts of Copans/Powerline
Industrial Center are hereby reserved unto the Lessor.
SECTION 2
POSSESSION AND COMMENCEMENT OF TERMS
SECTION 2.01: Lessee acknowledges that possession of the leased
premises will be delivered to it in as is condition without any representations
by Lessor, or any person, firm or corporation on behalf of Lessor as to the
condition thereof and Lessee accepts possession of said premises as outlined
above. Any alterations or modifications of the leased premises desired by Lessee
shall be accomplished in accordance with plans and specifications prepared by
Lessee and approved by Lessor in writing and at Lessee's sole cost and expense
and subject to Lessor's approval as stipulated in Section 8.
SECTION 2.02: The Lease will commence on the date specified in Section
1. It is contemplated that the Premises will be ready for occupancy by the
Lessee on or prior to the Commencement Date. However, in the event that the
Lessor is unable to deliver possession of the Premises to the Lessee on or
before said date, then and in such event the Lessor agrees to deliver possession
of the Premises to the Lessee as soon as practicable thereafter, but no later
than one (1) month from February l, 1999 and the rental under this Lease will be
abated
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proportionately and the Lessee will be relieved of the liability for paying the
same during such time Lessee does not have possession. In no event shall the
Lessor have any claim for damages (except for abatement of rent as herein
specified) on account of the failure of the Lessor to deliver possession of the
Premises to the Lessee on or before said date.
SECTION 3
BASIC RENTAL
SECTION 3.01: In consideration of the leasing aforesaid, Lessee hereby
covenants and agrees to pay Lessor at such place as Lessor may hereafter from
time to time designate in writing, a minimum net rental for the original term of
the Lease in a total amount of Ninety Thousand Six Hundred Sixty Six Dollars
00/100 Dollars ($90,666.00) payable monthly in advance on the first day of each
and every month in monthly installments as set forth below:
Year One - $28,584.00- $2,382.00 per month***
Year Two - $30,222.00- $2,518.50 per month***
Year Three - $31,860.00- $2,655.00 per month***
*Plus state sales tax.
**Plus additional costs as described in Sections 4.01 6.02 and 10.01 Lessor
estimates first year costs at $1.96 s.f. for the purpose of computing first year
monthly rent. First month's total rent is $3,200.14) THE RENTAL PAYMENTS SHALL
BE MADE BY LESSEE AT THE OFFICE OF LESSOR WITHOUT ANY PRIOR DEMAND AND WITHOUT
ANY DEDUCTIONS OR SET-OFFS EXCEPT AS OTHERWISE PROVIDED HEREIN. LESSEE AGREES TO
PAY LESSOR A 10% LATE FEE FOR ALL PAYMENTS RECEIVED AFTER THE FIFTH DAY OF EVERY
MONTH.
SECTION 4
TAXES, ASSESSMENTS, AND UTILITIES
SECTION 4.01: Lessee agrees to pay to Lessor its proportionate share of
all taxes and assessments which have been or may be levied or assessed by any
lawful authority, for any calendar year during the term hereof, against the land
and buildings presently and/or at any time during the term of this Lease.
Lessee's proportionate share shall be equal to the product obtained by
multiplying such taxes and assessments by a fraction, which numerator shall be
the number of square feet of floor area in the leased premises, and the
denominator of which shall be the total number of square feet of constructed
leaseable floor area. Any tax and/or assessment of any kind or nature presently
or hereafter imposed by the State of Florida or any political subdivision
thereof or any governmental authority having jurisdiction thereover upon,
against or with respect to the rentals payable by tenant to Lessor, or on the
income of Lessor, or with respect to the Lessors, or the individuals or entities
which form the Lessor's interest herein, ownership of the land and buildings
presently and/or at any time during the term of the Lease, either by way of
substitution for all or any part of the taxes and assessments levied or assessed
against such land and such buildings or in addition thereto, shall be deemed to
constitute a tax and/or assessment against such land and such buildings for the
purposes of this Section and Lessee shall be obligated to pay the proportionate
share thereof as provided herein. In addition Lessee shall also be obligated to
pay any sales tax imposed by any governmental authority on the payment by Lessee
or on the receipt by Lessor an any and all payments from Lessee. If the sales
tax is separately assessed, the Lessee shall pay that amount imposed on the
individual payments of Lessee. if the sales tax is not separately assessed, the
Lessee shall pay its proportionate share monthly as provided herein.
SECTION 4.02: Lessee's share of all of the aforesaid taxes and
assessments levied or assessed for or during the term hereof, and determined by
Lessor, shall be paid in monthly installments on or before the first day of each
calendar month, in advance, in an amount estimated by Lessor, provided that in
the event Lessor is required under any mortgage covering the land and
improvements leased to Lessee to escrow real estate taxes, Lessor may, but shall
not be obligated to, use the amount required to be escrowed as a basis for its
estimate of the monthly installments due from Lessee hereunder. Upon receipt of
all tax bills and assessment bills attributable any calendar year during the
term hereof, Lessor shall furnish Lessee with written statement of the actual
amount of Lessee's share of the taxes and assessments for such year
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together with copies of the tax bills and assessment bills attributable to such
calendar year. In the event no tax xxxx is available, Lessor may compute the
amount of such tax. If the total amount paid by Lessee under this Section for
any calendar year during the term of this Lease shall be less than the actual
amount due from Lessee for such year, as shown on such statement, Lessee shall
pay to Lessor the difference between the amount paid by Lessee and the actual
amount due, such deficiency to be paid with in ten (10) days after demand
therefore by Lessor, and if the total amount paid by Lessee hereunder for such
calendar year exceeds such actual amount due from Lessee for such calendar year,
such excess shall be credited against the next installment of taxes and
assessments due from Lessee to Lessor hereunder. All amounts due hereunder shall
be payable to Lessor as rent at the place where the fixed annual rental is
payable. For the calendar years in which this Lease commences and terminates,
the provisions of this Section shall apply, and Lessee's liability for it
proportionate share of any taxes and assessments for such years shall be subject
to a prorata adjustment based on the number of days of said calendar year during
which the term of this Lease is in effect. A copy of a tax xxxx or assessment
xxxx submitted by Lessor to Lessee shall at all times be sufficient evidence of
the amount of taxes and/or assessments assessed or levied against the property
to which such xxxx relates. Prior to or at the commencement of the term of this
Lease and periodically thereafter during the term hereof, Lessor shall notify
Lessee in writing of Lessor's estimate of Lessee's monthly installments due
hereunder. Lessor's and Lessee's obligations under this Section shall survive
the expiration of the term of this Lease. AR payments due from Lessee shall be
due as rent, including any default provisions set forth in Section 18 herein,
and all rights provided to Landlords for defaults in rental payments under
Florida law.
SECTION 4.03: Lessee also agrees to pay all charges made against the
premises for gas, heat, electricity and all other utilities separately metered
during the period of this Lease as the same shall become due.
SECTION 4.04: In the event any or all of the foregoing utilities are to
be paid from an escrowed fund required to established by Lessor or its financial
institution under the terms of financing, the Lessor shall notify Lessee and
Lessee shall be required to include with the additional monthly payments
referred to in section 4.02 a monthly amount to satisfy the estimated monthly
utility costs for the leased premises only. If the utilities, when due, exceed
the total amount then in the utility escrow, then the Lessee shall, upon demand,
pay any deficiency to Lessor. If such payments by Lessee, over the term of the
Lease, exceed the amount of the utilities paid from the escrow, such excess
shall be refunded by Lessor to Lessee at the expiration of the Lease term, or
when such excess is refunded by the financial institution to Lessor, whichever
first occurs. The utility escrow shall be adjusted as often as necessary to
provide sufficient funds to pay current utilities.
SECTION 5
USE OF PREMISES
SECTION 5.01: It is understood and agreed between the parties that the
leased premises during the continuance of this Lease shall be used and occupied
for USES PER ZONING CODE (Lessor represents zoning as I-1) only and for no other
purpose without the prior written consent of Lessor. Lessee agrees that it will
not use or permit any person to use the leased premises or any part thereof for
any use or purpose in violation of the laws of the United States, the State of
Florida, the ordinances or other regulation of the City of Pompano Beach or of
any other lawful authorities. During the original term or any extended term, the
Lessee will keep the leased premises and every part thereof and the area
adjacent to the lease premises (including service areas and landscaping and
parking areas), orderly, neat, safe, and clean and free from rubbish and dirt,
and at all times shall store all trash, garbage, or any other material solely
within the leased premises and shall arrange for the regular pickup of such
trash and garbage at Lessee's expense. Lessee shall not bum any trash or garbage
at any time in or about the building. Lessee shall not store or leave any
material outside of the building at any time. All signs and advertising
displayed in and about the premises shall be such only as to advertise the
business carried on upon the premises and Lessor shall control the location,
character and size thereof. No signs shall be displayed except as approved in
writing by Lessor and as a condition of Lessor's approval the sign must conform
to the Lessor's sign criteria; and no awning shall be installed or used on the
exterior of said building unless approved in writing by the Lessor. After (30)
days
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written notice of breach of the use of the premises and failure to remedy breach
or Lessee failure to undertake to remedy breach and continue until remedied,
Lessor shall have the right to terminate this lease forthwith and to re-enter
and repossess the leased premises, or to cure the breach, and to charge the
tenant with the cost of cure, to be paid as rent within ten (`10) days written
notice from Landlord.
SECTION 6
OPERATION AND MAINTENANCE OF COMMON AREAS
SECTION 6.01: The manner in which the parking and adjacent common areas
shall be maintained and operated and the expenditures therefore shall be at the
sole discretion of the Lessor and the use of such areas and facilities shall be
subject to such regulations as Lessor shall make from time to time. Lessor shall
not impose such regulations that would have an adverse, negative effect on the
operation of the Lessee's business.
SECTION 6.02: Lessee agrees to pay as rent to Lessor in the manner
hereinafter provided, but not more often than once monthly, Lessee's
proportionate share of all costs and expenses of every kind and nature paid or
incurred by Lessor in operating, equipping, policing and protecting, lighting,
insuring repairing, replacing and maintaining the common areas. Such costs and
expenses shall include, but not be limited to, illumination and maintenance of
the premises, signs, cleaning, lighting, line painting, landscaping, sewer and
premiums for liability and property insurance; and an amount equal to Lessee's
proportionate share of fifteen percent (15%) of the total of all of the
foregoing costs and expenses to cover administrative cost. Any utilities
furnished or supplied to any Lessee or the building which are not separately
metered, shall be considered a cost to maintain the common areas and shall be
included as part of such cost. For the purpose hereof, any charges for utilities
contained in the foregoing costs and expenses shall be at the same rates as the
rates for comparable service from applicable utility company serving the area in
which the premises is located. The proportionate share to be paid by Tenant
shall be computed on the basis that the total number of square feet of floor
area in the leased premises bears to the total number of square feet of
constructed leasable floor area at the premises.
Lessee's proportionate share of such costs and expenses for each lease
year and partial lease year shall be paid as rent in monthly installments on the
1st day of each calendar month, in advance, in an amount estimated by Lessor.
Within ninety (90) days after the end of each lease year or partial lease year,
Lessor shall furnish Lessee with a statement of the actual amount of Lessee's
proportionate share of such costs and expenses for such period. If the total
amount paid by Lessee under the Section for any calendar year shall be less than
the actual amount due from Lessee for such years as shown on such statement,
Lessee shall pay to Lessor the difference between the amount paid by Lessee and
the actual amount due, such deficiency to be paid within ten (10) days after the
furnishing of each such statement, and if the total amount paid by Lessee
hereunder for any such calendar year shall exceed such actual amount due from
Lessee for such calendar year, such excess shall be credited against the next
installment due from Lessee to Lessor under this Section 6.02.
SECTION 7
MAINTENANCE AND REPAIRS OF LEASED PREMISES
SECTION 7.01: lessor shall keep and maintain the foundation and
exterior walls of the building and roof in which the leased premises are located
and the structural (weight bearing) improvements on the portions of the leased
premises including A/C compressor, electrical systems and breakers (unless such
systems are overloaded by Lessee); exclusive of doors, door frames, door checks,
windows, and exclusive of window frames located in exterior building walls, in
good repair except that Lessor shall not be called upon to make an), such
repairs occasioned by the act of negligence of Lessee, its agents, employees,
invites, licensees, or contractors, except to the extent that Lessor is
reimbursed therefore under any policy of insurance permitting waiver of
subrogation in advance of loss. Lessor shall not be called upon to make any
other appurtenances, except as may be required under Section 11 and 12 hereof,
and Lessee shall be responsible for all maintenance and repair of any and all
other improvements on the demised premises. Should Lessee fail to perform or
fail to undertake to perform and complete within reasonable time any such
maintenance or repair upon thirty (30) days written notice to Lessee,
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and Lessee shall pay for any such repair or maintenance as rents due with the
immediate following rental payment.
SECTION 7.02: Except as provided in Section 7.01 of this lease, Lessee
shall keep and maintain in good order, condition and repair (including
replacement of parts and equipment if necessary) the leased premises and every
part thereof and any and all appurtenances thereto wherever located, including,
but without limitation, the exterior and interior portion of all doors, door
checks, windows, plate window, store front, all plumbing and sewage facilities
within the leased premises, including free flow up to the main sewer line,
fixtures, heating and air conditioning and electrical systems (whether or not
located in the leased premises), sprinkler system, walls, floor and ceilings.
The plumbing and sewage facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be introduced therein. Lessee hereby agrees to be responsible for any expenses
incurred in connection with any breakage, stoppage or damage resulting from a
violation of this provision by Lessee, its agents, employees, invites, licensees
or contractors. Lessee shall keep and maintain the leased premises in a clean
sanitary and safe condition in accordance with the laws of the State of Florida
in accordance with all directions, rules and regulations of the health officer,
fire xxxxxxxx, building inspector, or other proper officials of the governmental
agencies having jurisdiction, at the sole cost and expense of Lessee, and Lessee
shall comply with all requirements of law, ordinance and otherwise, affecting
said premises. If Lessee refuses to or neglects to commence or complete repairs
or undertake and complete in a reasonable time required by Section 7.02 hereof
promptly upon demand, nonpayment by Lessee of rental or any other charge due to
Lessor under this Lease. At the time of the expiration of the tenancy created
herein, Lessee shall surrender the premises in good condition, reasonable wear
and tear, loss by fire or any other unavoidable casualty excepted, so long as
any such fire loss is fully covered by insurance as required under this Lease.
Lessee, at its own expense, shall install and maintain fire
extinguishers and other fire protection devices as may be required from time to
time by any agency having jurisdiction thereof and the insurance underwriters
insuring the building in which the leased premises are located.
SECTION 7.03: All damages or injury done to the premises by the Lessee,
or by any person who may be in or upon the premises with the consent, invitation
or license of the Lessee, shall be repaired and paid for by the Lessee.
SECTION 8
ALTERATIONS
SECTION 8.01: Lessee agrees that the leased premises shall not be
altered, improved, or changed without the written consent (which shall not be
unreasonably withheld) of Lessor, and that unless otherwise provided by written
agreement, all alterations, improvements and changes which may be desired by the
Lessee and so consented to by the Lessor shall be done either by or under the
direction of the Lessor, but at the cost of Lessee. All alterations, fixtures
additions and improvements made in or to the building or the premises, except
movable office furniture and office equipment put in at the expense of the
Lessee, shall, unless otherwise provided by written agreement, be the property
of the Lessor and remain upon the be surrendered with the premises; provided,
however, the Lessor may designate by written notice to Lessee those alterations,
and additions, to be removed, and Lessee shall repair any damage to the leased
premises caused by such removal. Lessee shall reimburse Lessor for any repairs
necessitated by Lessee's removal of designated items, as rent herein.
SECTION 9
LIENS
SECTION 9.01: Lessee shall keep the leased premises free from any and
all hens arising out of any work performed, materials famished, or obligations
incurred by or for Lessee, and agrees to bond against or discharge any
mechanic's or materialman's lien within thirty (30) days after written request
therefore by Lessor. Lessee shall reimburse Lessor for any and all costs and
expenses which may be incurred by Lessor by reason of filing of any such liens
and/or the removal of same, such reimbursement to be made within ten (10) days
after receipt by Lessee
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from Lessor of a statement setting forth the amount of such costs and expenses.
The failure of Lessee to pay any such amount to Lessor within said ten (10) day
period shall carry with it the same consequences as failure to pay any
installment of rental.
SECTION 10
INSURANCE INDEMNIFY AND ATTORNEY FEES
SECTION 10.01: Lessee shall, during the entire term hereof, keep in
full force and effect a policy of public liability and property damage insurance
with respect to the leased premises, and the business operated by Lessee and any
subtenants of Lessee in the leased premises, including steam boiler insurance if
applicable, in which the limits of public liability coverage shall be not less
than Five Hundred Thousand Dollars ($500,000.00) per occurrence, and in which
the limit of the property damage liability coverage shall not be less than Three
Hundred Thousand Dollars ($300,000.00). The policy shall name Lessor and any
other parties in interest designated by Lessor, and Lessee as insured and shall
contain a clause that the insurer will not cancel or change the insurance
without first giving the Lessor thirty (30) days prior written notice. Such
insurance may be furnished by Lessee under any blanket policy carried by it or
under a separate policy therefor. The insurance shall be with an insurance
company approved by Lessor and a copy of the paid-up policy evidencing such
insurance or a certificate of insurer certifying to the insurance of such policy
shall be delivered to Lessor prior to commencement of Lease term and up renewals
not less than thirty (30) days prior to the expirations of such coverage. Any
such policy shall contain a waiver of subrogation endorsement as to the lessee.
Lessee shall provide a copy of the subject insurance policy upon Lessor's
written request.
SECTION 10.02: Lessor agrees, during the ten-n hereof, to carry
insurance against fire, vandalism, malicious mischief, and such other perils as
are from time to time included in a standard extended coverage endorsement and,
at Lessors' option, special extended coverage endorsements including rental
interruption insurance equal to twelve (12) full months of rental and tax
obligations, insuring the improvements of the premises, in an amount determined
solely by Lessor, but not less than one hundred per cent (100%) of the full
replacement cost, if available, and with or without deductible, at the option of
Lessor. Lessee agrees from time to time, to pay to Lessor, Lessee's
proportionate share of the cost of such insurance, such payment to made within
ten (10) days after receipt of a written statement from Lessor setting forth
such costs and copy of insurance premium xxxx. The proportionate share to be
paid by Lessee shall be computed on the basis that the total number of square
feet of floor area in the leased premises bears to the number of square feet of
constructed leasable floor area at the premises.
Lessee shall not carry any stock of goods or do anything in or about
said premises which will in any way tend to increase the insurance rates above
current levels on said premises and/or building of which they are a part. If
Lessee installs any electrical equipment that overloads the lines in the leased
premises, Lessee shall at its own expense make whatever changes are necessary to
comply with the requirements of the insurance underwriters and governmental
authorities having jurisdiction.
SECTION 10.03: Lessee covenants to defend and indemnify Lessor, and
save it harmless (except for loss or damage resulting from the negligence of
Lessor, its agents or employees) from and against any and all claims, actions,
damages, liability and expense, including attorneys' fees and costs, in
connection with any loss, damage or injury resulting from or out of any
occurrence in, upon or at the leased premises or the occupancy of use by Lessee
of the leased premises or any part thereof, or arising from or out of Lessee's
failure to comply with Section 7.01 or 7.02 hereof, or occasioned wholly or in
part by any act or omission of Lessee, its agents, contractors, employees,
servants, customers, or licensees. For the purpose hereof, the leased premises
shall include the service areas adjoining the same and the loading platform area
allocated to the use of Lessee.
In case Lessor should without active fault on his part be made a party
to any litigation commenced by or against Lessee, then Lessee shall defend,
indemnify and hold it harmless and shall pay all costs, expenses and reasonable
attorneys fees that may be incurred in enforcing the Lessee's covenants and
agreements in this Lease. Should any attorney be employed to collect any monies
under this Lease, including rent and otherwise, whether or not litigation is
instituted, the Lessor shall receive from Lessee, Lessor's reasonable attorneys'
fees and costs, through all
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appellate and post judgment proceedings. The prevailing party shall be entitled
to recover reasonable attorney's fees and costs, through all appellate and
post-judgment proceedings.
SECTION 11
DESTRUCTION OF LEASED PREMISES
SECTION 11.01: In the event the leased premises shall be partially or
totally destroyed by fire or other casualty insured under the insurance carried
by Lessor pursuant to Section 10.02 of this Lease, as to become partially or
totally untenantable, the damage to the leased premises shall promptly be
repaired by Lessor, to the extent of any proceeds received from such insurance,
unless Lessor shall elect not to rebuild as hereinafter provided, and a just and
proportionate part of the fixed minimum rental and all other charges shall be
abated, annually until so repaired. In no event shall Lessor be required to
repair or replace Lessee's merchandise, trade fixtures, furnishings, or
equipment. If more than thirty-five percent (35%) of the leased premises or more
than thirty-five percent (35%) of the floor area of the: building in which the
leased premises are located shall be destroyed by fire or other casualty, then
Lessor may elect whether to repair or rebuild the leased premises or the
building of which the leased premises are a part, as the case may be, or to
terminate this Lease by giving written notice to Lessee of it election to so
terminate, such notice to be given within thirty (30) days after the occurrence
of such damage or destruction. If less than 35% of the leased premises is
destroyed by fire or other casualty, the rent shall be abated by the percentage
of the leased space which is unusable until restored by Lessor. In the event of
total or partial destruction while repairs are being made, Lessee must be able
to operate his business and derive benefit from the use of the remaining space.
Notwithstanding the foregoing, if the restoration work cannot be accomplished is
Sixty (60) days Lessee shall have the option to terminate the Lease upon notice
to Lessor. If any restoration work is not completed within Sixty (60) days
Lessee shall have the further option of terminating the Lease. No rent will be
due and payable during any period in which the leased premises are being
restored by Lessor.
SECTION 11.02: Each party hereto does hereby remise, release, and
discharge the other party hereto and any officer, agent, employee, or
representative of such, of and from any liability whatsoever hereinafter arising
from loss, damage, or injury caused by fire or other casualty from which
insurance (permitting waiver of liability and containing a waiver of
subrogation) is carried by the injured party at the time of loss, damage, or
injury to the extent of any recovery by the injured party under such insurance.
SECTION 12
EMINENT DOMAIN
SECTION 12.01: In the event, during the term of this Lease, proceedings
shall be instituted under the power of eminent domain which shall result in the
taking of any part of the leased premises or the floor area of the building in
which the leased premises are a part, or the taking of a material portion of the
parking area so the number of spaces is thereby reduced to such an extent that
Lessee's business is significantly and adversely affected, and which shall
result in an eviction total or partial of the Lessee therefrom, then at the time
of such eviction, this Lease shall be void and the term above demised shall
cease and terminate; and if Lessee shall thereafter continue in possession of
the premises or any part thereof, it shall be a Lease from month to month and
for no longer term, anything in this instrument to the contrary notwithstanding.
If there is only a partial taking, not including a portion of the building or
reducing parking to the extent described in the previous sentence, the Lessor
shall restore the parking to the extent necessary to permit Lessee to continue
the use of the premises and there shall be no reduction in the monthly rental.
Provided further, that the whole of any award for any portion of the premises,
or the building taken by reason of said condemnation proceedings shall be the
sole property of, and be payable to the Lessor and provided further, that the
whole of any award for loss of business and for removal and relocation expenses
in any condemnation proceedings shall be the sole property of, and be payable to
the Lessee. It is further agreed that in any such condemnation proceedings the
Lessor and Lessee shall each seek its own award and at its own expense.
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SECTION 13
ASSIGNMENT
SECTION 13.01: Lessee shall not assign or sublet the demised premises
or any part thereof without first obtaining the Lessor's written consent (not to
be unreasonably withheld) except that the Lessee may, without Lessor's consent,
assign or sublet all or any part of the premises to wholly or substantially
owned subsidiaries of the Lessee, for a use permitted pursuant to Section 5.01
hereof, and provided that Lessee is not at such time in default hereunder and
provided further that such successor shall execute an instrument in writing
assuming all of the obligations and liabilities to the Lessor, and provided
further that such assignment or subletting shall not operate to release Lessee
from it's obligations under the lease. If Lessee is a corporation, any
cumulative transfer of a majority interest of the outstanding stock of the
Lessee, during the term of the Lease shall be deemed an assignment.
SECTION 14
INSPECTION OF PREMISES
SECTION 14.01: Lessee agrees to permit Lessor and the authorized
representatives of Lessor to enter the demised premises at reasonable times
during business hours for the purpose of inspecting the same.
SECTION 15
FIXTURES AND EQUIPMENT
SECTION 15.01: All fixtures and equipment paid for by the Lessor and
all fixtures and equipment which may be paid for and placed on the premises by
the Lessee from time to time but which are so incorporated and affixed to the
buildings that their removal would involve damage or structural change to the
buildings, shall be and remain the property of the Lessor.
SECTION 15.02: All furnishings, equipment and fixtures other than those
specified in Section 15.01, which are paid for and placed on the premises by
Lessee from time to time (other than those which are replacements for fixtures
originally paid for by Lessor) shall remain the property of the Lessee.
SECTION 16
NOTICE OF DEMANDS
SECTION 16.01: All notices to or demands upon Lessor or Lessee directed
or required to be given under any of the provisions hereof shall be in writing.
Any notices or demands from Lessor to Lessee shall be deemed to have been duly
and sufficiently given if a copy thereof has been mailed by United States mail
in an envelope properly stamped and addressed to Lessee at the address of the
demised premises, or at such other address as Lessee may have last furnished in
writing to the Lessor for such purpose, and any notices or demands from Lessee
to Lessor shall be deemed to have been duly and sufficiently given if mailed by
United States mail in an envelope properly stamped and addressed to Lessor at
the address last furnished by written notice from Lessor to Lessee. The
effective date of such notice shall be on business day following the delivery of
the same to the United States Post Office for mailing.
SECTION 17
BANKRUPTCY
SECTION 17.01: Lessee covenants and agrees that if any one or more of
the following events occur, namely;
(a) Lessee shall be adjudged a bankrupt or insolvent or
trustee shall be appointed for Lessee after a petition has been
filed for Lessee's reorganization or arrangement under the
Federal Bankruptcy Laws, as now or hereafter amended, or under
the laws of any State, and any such adjudication or appointment
shall not have been vacated or stayed or set aside with thirty
(30) days from the date of the entry or granting thereof; or
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(b) Lessee shall file, or consent to any petition in
bankruptcy or arrangement under the Federal Bankruptcy Laws, as
now or hereafter amended, or under the laws of any State; or
(c) A decree or order appointing a receiver of the property
of Lessee shall be made and such decree or order shall not have
been vacated, stayed or set aside within thirty (30) days from
the date of the entry or granting thereof or Lessee shall apply
for or consent to the appointment of a receiver for Lessee; or
(d) Lessee shall make any assignment for the benefit of
creditors; then it shall be lawful for Lessor subject to Federal
U.S. Bankruptcy laws, at his election to declare the term of the
Lease ended, and the said premises and the buildings and
improvements then situated thereon or any part thereof, either
with or without process of law, to re-enter, and Lessee and all
persons occupying in or upon the same under it to expel, remove
and put out, and the said premises and the buildings and
improvements then situated thereon again to repossess and enjoy.
SECTION 18
DEFAULT, RE-ENTRY AND DAMAGES
SECTION 18.01: In case any rent or other payments required to be made
by Lessee shall be due and remain unpaid for more than fifteen (15) days after
due without notice, or if default be made in any of the other covenants,
agreements, stipulations or conditions herein contained and such default shall
continue for a period of thirty (30) days after written notice of such default
and Lessee fails to cure said default or undertake to cure said default and
complete the correction of the default within a reasonable time, or if the
leased premises shall be deserted or vacated, Lessor, in addition to all other
rights or remedies it may have, shall have the immediate right to re-enter and
may remove all persons and property from the premises. Such property may be
removed and stored in any other place in the building in which the leased
premises are situated, or in any other place, for the account of, and at the
expense and the risk of Lessee. Lessee hereby waives all claims for damages
which may be caused by the re-entry of Lessor and taking possession of the
premises or storing of furniture and property as herein provided, and will save
Lessor harmless from any loss, costs, or damages occasioned thereby, and no such
re-entry shall be considered or construed to be a forcible entry, on the part of
the Lessor. In any action pursuant to Section 18, of this Lease, the prevailing
party shall be entitled to payment by of its reasonable attorneys fees and costs
from the first demand made by the attorney, through all litigation including
appellate and post judgment proceedings.
SECTION 18.02: Should Lessor elect to re-enter as herein provided or
should it take possession pursuant to legal proceedings to pursuant to any
notice provided for by law, it may either terminate this Lease or it may from
time to time, without terminating this Lease, re-let the premises or any part
thereof for such term or terms and at such rental or rentals and upon such other
terms and conditions as Lessor in its sole discretion may deem advisable, with
the right to make alterations and repairs to the premises. Rentals received by
Lessor from such reletting shall be applied as follows:
First, to the payment of any indebtedness, other than rent due
hereunder from Lessee to Lessor, including all damages sustained by
Lessor as a result of the default of Lessee;
Second, to the payment of rent or other payments required of Lessee
for taxes, insurance or utilities due and unpaid hereunder;
Third, to the payment of any other sum specified in Section 3.02
hereof,
Fourth, to the payment of any cost of such re-letting; and
Fifth, to the payment of the costs of any alterations or repairs to the
premises; and the residue, if any, shall be held by Lessor and applied
in payment of future rent as the same may become due and payable
hereunder. Should such rentals
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received from such re-letting during any month be less than that
amount agreed to be paid that month by Lessee hereunder the Lessee
shall pay such deficiency to Lessor. Such deficiency shall be
calculated and paid monthly. No such re-entry or taking possession of
the premises by Lessor shall be construed as an election on its part
to terminate this Lease unless a written notice of such intention be
given to Lessee or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such re-letting
without termination, Lessor may at any time thereafter. elect to
terminate this lease for such previous breach. Should Lessor at any
time terminate this Lease for any breach, in addition to any other
remedy it may recover from Lessee all damages it may incur by reason
of such breach, including the cost of recovering the premises, and
including the worth at the time of such termination of the excess, if
any, of the amount of rent and other payments required of Lessee
hereunder and charges equivalent to rent reserved in this Lease for
the remainder of the stated term, over the then reasonable rental
value of the premises for the remainder of the stated term.
SECTION 18.03 In the event of default, the Lessor may declare the
entire balance of the rent for the remainder of the term to be immediately due
and payable and may collect the same by distress or otherwise and Lessor shall
have a Lessor's hen on the property of the Lessee which is located in the leased
Premises or elsewhere and in order to protect its interest in the said property
Lessor may, without first obtaining a distress warrant, lock up the leased
Premises in order to protect said interest in the property, or the Lessor may
terminate this Lease and retake possession of the leased Premises or enter the
leased Premises and relet the same without termination, in which latter event
the Lessee covenants and agrees to pay any deficiency after Lessee is credited
with the rent thereby obtained less all repairs and expenses (including the
expenses of obtaining possession), or the Lessor may resort to any two or more
of such remedies or rights, and adoption of one or more such remedies or rights
shall not necessarily prevent the enforcement of others concurrently or
thereafter.
SECTION 19
SURRENDER OF PREMISES ON TERMINATION
SECTION 19.01: Whenever this Lease shall be terminated, whether by
lapse of time, forfeiture, or in any other way, Lessee will yield and deliver up
the demised premises, including the building and improvements thereon and the
fixtures and equipment belonging to Lessor therein contained peaceably to Lessor
in as good repair as when taken, except for reasonable and normal wear and tear.
SECTION 20
PERFORMANCE BY LESSOR OF THE COVENANTS OF LESSEE
SECTION 20.01: Should Lessee at any time fail to do any of the things
required to be done by it under the provisions of this Lease, Lessor, at it's
option, and in addition to any and all other rights and remedies of Lessor in
such event, may but shall not be required to) do the same or cause th same to be
done, and the reasonable amount of any money expended by Lessor in connection
therewith shall be due from Lessee to Lessor as additional rent on or before the
next rental due date bearing interest at the rate of eighteen percent (I 8%)
from the date of payment until the repayment thereof to Lessor by Lessee. On
default in such payment, Lessor shall have the same remedies as on default in
payment of rent. Likewise in the event Lessor fails to perform or undertake to
perform any of its obligations under this Lease, Lessee may do the same or cause
the same to be done and charge Lessor for any reasonable amount of any money
expended by Lessee bearing interest at the same rate until paid.
SECTION 21
RIGHTS TO MORTGAGE
SECTION 21.01: Lessor reserves the right to subject and subordinate
this Lease at all times, to the hen of any mortgage or mortgages now or
hereafter placed upon Lessor's interest in the said premises and on the land and
buildings of which the said premises are a part or upon any
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building hereafter placed upon the land of which the leased premises form a
part. Lessee covenants and agrees to execute and deliver upon demand such
further instrument or instruments subordinating this Lease to the lien of any
such mortgages or proposed mortgages and hereby irrevocably appoints Lessor the
attorney-in-fact of Lessee to execute in compliance with this Section 21.01 and
deliver any such instrument or instruments for and in the name of Lessee. Any
failure to provide notice to the mortgagee as set forth therein shall not
constitute a material breach of this agreement.
SECTION 21.02: Lessee agrees that it will, at any time and from time to
time, within ten (10) days following written notice by Lessor, execute,
acknowledge and deliver to Lessor a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect and stating the
modifications), and the date to which the rent, additional rent and any other
payments due hereunder from Lessee have been paid in advance, if any, and
stating whether or not there are defenses or offsets claimed by the Lessee and
whether or not to the best knowledge of the Lessee the Lessor is in default in
performance of any term, covenant or condition contained in this Lease, and if
so, specifying each such default of which the Lessee may have knowledge and if
requested, such financial information concerning Lessee and Lessee's business
operations (and any guarantor, if the Lease be guaranteed). The failure of
Lessee to execute, acknowledge and deliver to Lessor a statement in accordance
with the provisions of this section within said ten (10) day period shall
constitute an acknowledgment, which may be relied on by any person holding or
proposing to acquire an interest in the Premises or this Lease from or through
the Lessor, that this Lease is unmodified and in full force and effect and shall
constitute, as to any person entitled as aforesaid to rely upon such statements,
waiver of any defaults which may exist prior to the date of such notice.
SECTION 22
COVENANTS OF QUIET ENJOYMENT
SECTION 22.01: Lessor covenants and agrees to and with Lessee that at
all times when Lessee is not in default under the terms of and during the term
of this lease, Lessee's quiet and peaceable enjoyment of the leased premises
shall not be disturbed or interfered with by Lessor or any person claiming by,
through or under Lessor.
SECTION 23
SECURITY DEPOSIT
SECTION 23.01: The Lessor herewith does not acknowledge the receipt of
Six Thousand Dollars ($6,000.00) to be retained as security for the faithful
performance of all of the covenants, conditions and agreements of this Lease,
but in no event shall the Lessor be obliged to apply the same upon rents or
other charges in arrears or upon damages for the Lessee's failure to perform the
said covenants, conditions, and agreements; the Lessor may so apply the security
at its option; and the Lessor's right to the possession of the premises for
nonpayment of rent or for any other reason shall not in any event be affected by
reason of the fact that the Lessor holds this security. The said sum if not
applied toward the payment of rent or other charges in arrears or toward the
payment of damages suffered by the Lessor by reason of the Lessee's breach of
the covenants, conditions, and agreements of this Lease shall be returned to the
Lessee when this Lease is terminated, according to these terms, and in no event
is the said security to be returned until the Lessee has vacated the premises,
delivered possession to the Lessor, and Lessor has inspected said premises
within fifteen (15) days.
In the event that the Lessor repossesses itself of the said premises
because of the Lessee's default or because of the Lessee's failure to carry out
the covenants, conditions and agreement of the Lease, the Lessor may apply the
said security upon all damages suffered or which shall accrue thereafter by
reason of the Lessee's default or breach. The Lessor shall not be obliged to
keep the said security segregated from its own funds and there shall be paid no
interest on said security deposit.
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SECTION 24
HOLDING OVER
SECTION 24.01: In the event Lessee herein holds over after the
termination of this Lease, thereafter the tenancy shall be from month to month
in the absence of a written agreement to the contrary, subject to all the
conditions, provisions and obligations of this Lease insofar as the same are
applicable to a month to month tenancy but at monthly rental double the monthly
rental stipulated in Section 3.01.
SECTION 25
REMEDIES NOT EXCLUSIVE; WAIVER
SECTION 25.01: Each and everyone of the rights, remedies and benefits
provided by this Lease shall be cumulative, and shall not be exclusive of any
other of said rights, remedies and benefits allowed by law.
SECTION 25.02: One or more waivers of any covenant or condition by
Lessor shall not be construed as a waiver of a further or subsequent breach of
the same covenant or condition, and the consent or approval by Lessor to or of
any act by Lessee requiring Lessor's consent or approval shall not he deemed to
waive or render unnecessary Lessor's consent or approval to or of any subsequent
similar act by Lessee.
SECTION 26
RIGHT TO SHOW PREMISES
SECTION 26.01: The Lessee hereby agrees that for a period commencing
ninety (90) days prior to the termination of this Lease. The Lessor may show the
premises to prospective Lessees, and ninety (90) days prior to the termination
of this Lease, Lessor- may display about said premises the usual and ordinary
"For Lease" signs.
SECTION 27
LESSEE'S PROPERTY
SECTION 27.01: Lessee shall be responsible for and shall pay before
delinquency all municipal county, state and federal taxes assessed during the
term of this Lease against any interest or personal property of any kind, owned
by or placed in, upon the leased premises by Lessee.
SECTION 27.02: To the extent not covered by Lessors Hazard Insurance,
Lessor shall not be responsible or liable to the Lessee for any loss or damage
that may be occasioned by or through the acts or omissions of pm sons occupying
adjoining premises, or any part of the premises adjacent to or connected with
the premises hereby leased or any part of the building of which the leased
premises are a part, or for any loss or damage resulting to the Lessee or its
property from bursting, stoppage, or leaking of water, gas, sewer or steam
pipes, or for any damage or loss of property on or within the leased premises
from any cause whatsoever.
SECTION 27.03: Lessee shall give immediate notice to Lessor in case of
fire or other casualty in the leased premises, or in the building of which the
premises are a part, or of defects therein or in any fixtures or equipment.
SECTION 27.04: Lessee shall keep the Premises, or cause the Premises to
be kept, free of hazardous materials. Without limitation to the foregoing,
Lessee shall neither cause nor permit: (i) the Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, produce or
process hazardous materials, except in compliance with all applicable federal
state and local laws of regulations, nor (ii) a release of hazardous materials
onto the Premises or any other property as a result of any intentional or
unintentional act or emission on the part of Lessee or any Lessee or sublessee.
Lessee shall defend, indemnify and hold harmless Lessor, and Lessor's employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs or expenses of any kind of
nature, known or unknown, contingent or otherwise (including, without
limitation, accountants, and attorneys fees at both the trial and appellate
levels, consultant fees, investigation and laboratory fees, court
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costs and litigation expenses), arising out of, or in any way related to any of
the following caused by Lessee: (i) the presence, disposal release or threatened
release of any hazardous materials which are on, from or affecting soil, water,
vegetation, building, personal property, persons, animals or otherwise; (ii) any
personal injury, including wrongful death, or damage to property, real or
personal arising out of or related to such hazardous materials: (iii) any
lawsuit brought, threatened or settled of governmental order related to such
hazardous materials; and (iv) any violation of laws, orders, regulations,
requirements or demands of governmental authorities or of any policies or
requirements of Lessor which are based upon or in any way related to such
hazardous materials. The term "Hazardous Material" includes, without limitation,
any flammable explosive, radioactive materials, hazardous materials, hazardous
wastes, hazardous of toxic substances or related materials defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. 960 et seq.), the Hazardous Materials Transportation Act,
as amended (42 U.S.C. 1801 et seq.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. 9601 et seq.), the regulations adopted and publications
promulgated pursuant to the foregoing and any other federal, state or local
environmental law, ordinance, rule or regulation. The provisions herein shall be
in addition to any and all other obligations and liabilities Lessee may have to
Lessor at law or in equity under any of the documents executed in connection
with this Lease, and shall survive the termination of this Lease.
SECTION 28
MISCELLANEOUS
SECTION 28.01: This Lease shall be governed by and construed in
accordance with the laws of the State of Florida. If any provision of this Lease
or the application thereof to any person or circumstances shall, to and extent,
be invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and each remaining provision of the Lease shall be valid and enforceable
to the fullest extent permitted by the law.
SECTION 28.02: The captions of this Lease are for convenience only and
are not to be construed as part of this Lease and shall not be construed as
defining or limiting in any way the scope of intent of the provisions hereof.
SECTION 28.03: Whenever herein the singular member is used, the same
shall include the plural and the masculine gender shall include the feminine and
neuter genders.
SECTION 28.04: This Lease shall constitute the entire agreement of the
parties hereto; all prior agreements between the parties, whether written or
oral, are merged herein and shall be of no force and effect. This Lease cannot
be changed, modified or discharged orally but only by an agreement in writing
signed by the party against whom enforcement of the change, modification or
discharge is sought.
SECTION 28.05: In any matter in which Lessor's consent is required
under this lease, said consent shall not be unreasonably withheld.
SECTION 28.06: In the event any proceedings are brought for the
foreclosure of or in the event of exercise of the power of sale under mortgage
made by Lessor- covering the leased premises, Lessee shall, at the option and
request of Purchaser, attorney to the Purchaser upon any such foreclosure or
sale and recognize such Purchaser as the Lessor under this Lease.
SECTION 28.07: In the event of any transfer or transfers of Lessor's
interest in the premises, the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of Lessor accruing from and
after the date of such transfer.
SECTION 28.08: All rights and liabilities herein given to or imposed
upon the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and assigns of the said
parties; and if there shall be more than one Lessee, they shall all be bound
jointly and severally by the terms, covenants and agreements therein. No rights,
however, shall inure to the benefit of any assignee of Lessee unless the
assignment to such assignee has been approved by Lessor in writing as provided
in Section 13.01 hereof.
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SECTION 28.09: Lessor intends to initially refer to the development in
which the leased premises are located at the premises. Lessor hereby reserves
the right, at any time and from time to time, without notice to Lessee, to
change the name of said development or any of the buildings located therein at
Lessor's discretion.
SECTION 28.10: This agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs, administrators,
executors, representatives, successors and permitted assigns.
SECTION 28.11: No payment by Lessee or receipt by Lessor of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Lessor shall accept such check or
payment without prejudice to Lessor's right to recover the balance of such rent
or pursue any other remedy provided in this Lease.
SECTION 28.12: The submission of this Lease for examination does not
constitute a reservation of or option for the leased premises, and this Lease
shall become effective as a Lease only upon execution and delivery thereof by
Lessor and Lessee.
SECTION 28.13: The parties acknowledge that this lease agreement is
being entered into contingent upon early termination of existing tenant's lease
agreement with JMA Investment, Inc. This agreement will be binding only if
Lessor delivers possession of the Premises on or before March 15, 1999.
Thereafter, this lease agreement may only be extended in writing by Delta
Transfer Corp.
IN WITNESS THEREOF, the Lessor and Lessee have executed this Lease as
of the date set forth at the outset hereof.
WITNESSES: LESSOR:
JMA INVESTMENT, INC.
By:
------------------------------- -----------------------------------
XXXXX XXXXXXXX, PRESIDENT
-------------------------------
LESSEE:
DELTA RECYCLING, CORP.
By:
------------------------------- -----------------------------------
XXXXXXX XXXXXXX, PRESIDENT
-------------------------------
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SECTION 28.09: Lessor intends to initially refer to the development in
which the leased premises are located at the premises. Lessor hereby reserves
the right, at any time and from time to time, without notice to Lessee, to
change the name of said development or any of the buildings located therein at
Lessor's discretion.
SECTION 28.10: This agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs, administrators,
executors, representatives, successors and permitted assigns.
SECTION 28.11: No payment by Lessee or receipt by Lessor of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Lessor shall accept such check or
payment without prejudice to Lessor's right to recover the balance of such rent
or pursue any other remedy provided in this Lease.
SECTION 28.12: The submission of this Lease for examination. does not
constitute a reservation of or option for the leased premises, and this Lease
shall become effective as a Lease only upon execution and delivery thereof by
Lessor and Lessee.
IN WITNESS THEREOF, the Lessor and Lessee have executed this Lease as
of the date set forth at the outset hereof.
WITNESSES: LESSOR:
JMA INVESTMENT, INC.
By:
------------------------------- -----------------------------------
XXXXX XXXXXXXX, PRESIDENT
-------------------------------
LESSEE:
DELTA RECYCLING, CORP.
By:
------------------------------- -----------------------------------
XXXXXXX XXXXXXX, PRESIDENT
-------------------------------
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ADDENDUM
Reference is hereby made to certain Lease contract dated February, 1999 by and
between DELTA TRANSFER CORP., (Lessee) and JMA INVESTMENT, INC., (Lessor). The
following items represent changes to, and further agreements.
1. Lessee after one (1) year can vacate lease premises with four (4) months
written notice after the twelfth month of occupancy.
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