AGREEMENT OF LEASE Exhibit 10.20
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THIS AGREEMENT OF LEASE ("Lease") made this February 19, 2002, by and
between G.F. FLORIDA OPERATING ALPHA, INC., a Florida corporation, ("Landlord"),
and EMTEC, Inc. , a Delaware corporation, ("Tenant").
WITNESSETH
Article 1. Premises. Landlord hereby demises and lets unto Tenant and
Tenant hereby leases and takes from Landlord, for the term and upon the terms
and conditions set forth herein, that portion of the "Building" constructed on
the real property more particularly described on Exhibit "A" attached hereto and
made a part hereof(The `Property"), located at 7843 Bayberry Road, Jacksonville,
Florida 32256 containing 3,340 square feet (the `Premises"), together with the
right in common with the other occupants of the building to use the driveways,
sidewalks, and common area being more particularly described on Exhibit "A"
attached hereto (The "Common Area"). Tenant's right to use the Common Area shall
be limited or restricted as depicted by Exhibit "A".
Article 2. Term & Expansion. To have and to hold said Premises for a
term of 3 years commencing on March 1, 2002 (hereinafter called the
"Commencement Date"), and ending at 6:00 p.m. on February 28, 2005 (hereinafter
called the "Term"). Should Landlord have property available for expansion and/or
relocation, and Landlord & Tenant come to a mutual agreement of terms and
conditions of said expansion and/or relocation, then Tenant would have the
option without penalty to expand or relocate to said space. Notwithstanding the
foregoing, in the event Landlord is unable to accommodate Tenant's expansion
after one year of occupancy, with adequate space as determined by Tenant, the
lease is cancelable upon ninety days notice to Landlord and payment of a
cancellation fee equal to the then current three month's gross rent, at any time
during the lease after the first year. This Lease shall not be recorded in any
public records without the prior written consent of the Landlord.
Article 3. Construction by Landlord. Landlord has completed at its own
cost and expense the construction of the Premises in accordance with the outline
specifications and drawings attached hereto as Exhibits A, B, and B- 1. By its
execution hereof, Tenant acknowledges that it has had the opportunity to inspect
the premises and agrees to take the space "as is".
Article 4. Use of Premises. Tenant shall use the Premises for
warehouse and appurtenant offices. The Premises may not be used or occupied in
whole or in part for any other purpose without the written consent of Landlord.
Landlord warrants that the Premises is presently zoned Industrial Business Park
2, (IBP2), pursuant to current City of Jacksonville zoning regulations and
complies with Deerwood Center's Covenants and Restrictions. Tenant shall not
store any hazardous materials in or about the Premises and Tenant's use of the
premises shall be in accordance with all applicable federal, state, and local
laws, regulations, and ordinances.
AGREEMENT OF LEASE Exhibit 10.20
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Article 5. Acceptance of Premises. Tenant accepts the Premises for
Tenant's use in the condition in which the Premises are, without reservation and
without representation, express or implied, by Landlord. Nothing herein shall
absolve Landlord from responsibility to repair or replace structural portions of
the Premises in accordance with the terms or other provisions of this Lease.
Article 6. Rent.
A. Base Rent. Tenant shall pay to the Landlord, or to Landlord's designate,
in care of G. F. Florida Operating Alpha, Inc., 8186 Baymeadows Way West,
Jacksonville, Florida, 32256, or at such other place as Landlord may designate
in writing, without notice, demand, deduction, or set-off, annual rental,
(hereinafter called "Base Rent"), (in accordance with the attached Exhibit "C"),
payable in equal monthly installments in advance on the first day of each
calendar month during the Term, together with all sales tax thereon and any
additional rents as hereinafter provided. In the event this Lease commences on a
date other than the 1st day of the month, the first month's rent shall be
prorated to reflect the actual period of tenancy.
B. Additional Rent.
1. Building Operating Expenses.
a. Tenant shall pay as Additional Rent it's pro rata share of any
Building Operating Expenses (as hereinafter defined) and shown in Exhibit "C".
Landlord shall deliver to Tenant each year, on or before March 31 (or within a
reasonable time thereafter), a statement setting forth the amount of Operating
Expenses paid or incurred by Landlord, directly or indirectly, during the
immediately preceding calendar year. This statement shall delineate Tenant's
actual pro rata share of the demonstrated Building Operating Expenses for the
preceding calendar year. Within thirty (30) days after delivery of the
statement, Tenant shall pay to Landlord as Additional Rent, Tenant's share of
such Building Operating Expenses not previously paid.
b. Commencing with the rental payment immediately following the
receipt of the statement of Building Operating Expenses, Tenant shall remit as
Additional Rent one-twelfth (1/12) of Tenant's pro rata share of the anticipated
Building Operating Expenses for the following year in addition to the scheduled
Base Rent.
c. If the term of this Lease begins after January 1, or ends
prior to December 31, Tenant's share of the Building Operating Expenses shown on
the statement delivered at the end of such year shall be reduced
proportionately. In the event Tenant's share of the Building Operating Expenses
is less than the amount previously anticipated and collected by Landlord,
Tenant's excess shall be applied to sums owed to Landlord, and if none, then
shall be remitted to Tenant. In the event Tenant's share of the Building
Operating Expenses is more than the amount previously anticipated and collected
by Landlord, Tenant's shortage shall be billed to Tenant and remitted within
thirty (30) days.
AGREEMENT OF LEASE Exhibit 10.20
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d. The term "Building Operating Expenses" shall be deemed to
include, but not be limited to: costs incurred in the normal operation,
prevention and corrective maintenance and repair of the Property and any parking
lot, elevator, landscaping, exteriors of the buildings, and other common areas
used in conjunction therewith, whether paid to employees of Landlord or to
independent suppliers or contractors engaged by Landlord; wages and salaries,
taxes imposed in respect to wages and salaries, (including social security,
unemployment, medicare and disability insurance), fringe benefits, and workers
compensation insurance with respect to such wages and salaries; insurance
premiums carried by or on behalf of Landlord in connection with the Property and
paid by Landlord; assessments paid by Landlord to Deerwood Center Owner's
Association for common area maintenance and guard service; base charges for
water and sewage services, irrigation and fire protection stand-by fees for the
Property; charges for electricity paid by Landlord in connection with the
Property; and management fees.
e. The Building Operating Expenses shall not include the cost of
any repairs or replacements that by sound accounting practices should be
capitalized. In this connection the decision of Landlord's accountants shall be
final.
2. Tenant Expenses.
a. Tenant shall pay to Landlord, as Additional Rent, all
increases in fire insurance premiums on the Leased Premises due to an increase
in the rate of fire insurance in excess of the rate on the Leased Premises at
the time of making this Lease, if such increase is caused by any action or
omission of Tenant, or the nature of Tenant's business.
C. Late Charges. In the event Tenant fails to pay when due any amount owed
under the provisions of this Article or any amount owed under the provisions of
this Article or any other Article of this Lease, Tenant shall pay to Landlord,
in addition to the amount due, a late charge according to the following
schedule.
1. For any amount Tenant fails to pay within ten (10) days of the date
upon which such amount is due, three percent (3%) of such amount.
2. For any amount Tenant fails to pay within twenty (20) days of the
date upon which such amount is due, ten percent (10%) of such amount.
3. If Tenant fails to pay any such amount within thirty (30) days of
the due date, Tenant shall pay in addition to the late charge, interest thereon
from the date upon which such amount was due until the date upon which such
amount is paid, at the highest rate permitted by law.
Article 7. Security Deposit. Not applicable.
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AGREEMENT OF LEASE Exhibit 10.20
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Article 8. Indemnity and Insurance. (a) To the fullest extent
permitted by law, Tenant shall indemnify, hold harmless and defend Landlord and
its agents and employees from and against all claims, damages, losses and
expenses, including but not limited to attorneys' fees, arising out of or
resulting from the conduct of Tenant's business, or Tenant's use of the
Premises, or from any accident in or on the Premises, and will further indemnify
and save the Landlord harmless against and from any and all claims arising from
any breach on the part of Tenant in the performance of any covenant or agreement
to be performed by Tenant pursuant to the terms of this Lease, provided that any
such claim, damage, loss or expense is caused in whole or in part by any act or
omission of Tenant, any subcontractor of Tenant, anyone directly or indirectly
employed by any of them, or anyone for whose acts any of them may be liable.
(b) In any and all claims against the Landlord or any of its agents or
employees, by any employee of Tenant, any subcontractor of Tenant, anyone
directly or indirectly employed by any of them or anyone for whose acts any of
them may be liable, the indemnification obligation under this Article 8 shall
not be limited in any way by any limitation on the amount or type of damages,
compensation, or benefits payable by or for Tenant or any subcontractor of
Tenant under workers' compensation acts, disability benefits acts, or other
employee benefits acts.
(c) Tenant shall purchase and maintain such insurance as will protect
it from claims set forth below which may arise out of or result from its
operations under this Lease, whether such operations be by itself, by any
subcontractor or by anyone directly or indirectly employed by any of them, or by
anyone for whose acts any of them may be liable:
(1) claims under workers' compensation provided under Florida statutes;
(2) claims for damages because of bodily injury, sickness or disease, or
death of any person other than employees;
(3) claims for damages insured by usual personal injury liability coverage
which are sustained (a) by any person as a result of any offense directly or
indirectly related to the employment of such person by the Tenant, or (b) by any
other person;
(4) claims for damages because of injury to or destruction of tangible
property, including loss of use thereof,
(5) claims for damages because of bodily injury or property damage arising
out of the ownership, maintenance, use, loading or unloading of any motor
vehicle.
(d) The minimum limit of liability for the policies required under
preceding Section "c" above shall be:
(1) Workers' Compensation and Employer Liability
Coverage A - Statutory
Coverage B - Bodily Injury by Accident - $100,000 - Each Accident
Bodily Injury by Disease - $100,000 - Each Employee
Bodily Injury by Disease - $500,000 - Policy Limit
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AGREEMENT OF LEASE Exhibit 10.20
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(2) Comprehensive General Liability
Per Occurrence - $500,000
General Aggregate - $1,000,000
Products Aggregate - $1,000,000
Coverage to include a "Broad Form Comprehensive General Liability"
Endorsement (or equivalent).
(3) Automobile Liability
Bodily Injury - $500,000 per person
- $500,000 per accident
Property Damage - $100,000 per accident
OR $500,000 combined single limits
(e) The insurance required by Section "c 2-5" shall include Landlord
as an Additional Insured with respect to operations performed under this Lease.
(f) Certificates of insurance acceptable to Landlord shall be filed
with Landlord prior to the commencement of operations under this Lease. These
certificates shall contain a provision that coverages afforded under the
policies will not be canceled, nor will coverage be reduced, without 30 day
written notice to Landlord.
(g) The insurance companies providing coverage required under Article
"8" shall be acceptable to the Landlord, shall be licensed to do business in the
State of Florida, and shall have a "Best's Rating" of "A" or "A+". Any
exceptions must have prior written approval from Landlord.
Article 9. Casualty Damage. (a) If the building or other improvements
on the Leased Premises should be damaged or destroyed by fire, flood, or other
casualty; Tenant shall immediately give written notice thereof to Landlord.
(b) If the building on the Leased Premises should be totally destroyed
by fire, flood, or other casualty, or if it should be so damaged that rebuilding
or repairs cannot reasonably be completed within one hundred eighty (180)
working days from the date of written notification by Tenant to Landlord of the
occurrence of the damage, this Lease shall terminate and rent shall be abated
for the unexpired portion of this Lease, effective as of the date of said
occurrence.
(c) If the building on the Leased Premises should be damaged by fire,
flood, or other casualty, but not to such an extent that rebuilding or repairs
cannot reasonably be completed within one hundred eighty (180) days from the
date of written notification by Tenant to Landlord of the occurrence of the
damage, this lease shall not terminate, but Landlord shall, if the casualty has
occurred prior to the final six (6) months of the Lease term, at its sole cost
and risk proceed to rebuild or repair such building improvements to
substantially the same condition in which it existed prior to such damage. If
the casualty occurs during the final six (6) months of the Lease term, Landlord
shall not be required to rebuild or
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AGREEMENT OF LEASE Exhibit 10.20
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repair such damage. If the building is to be rebuilt or repaired and is
untenantable in whole or in part following such damage, the rent payable during
the period in which it is untenantable shall be adjusted equitably. In the event
that Landlord should fail to complete such rebuilding or repairs within one
hundred eighty (180) working days from the date of written notification by
Tenant to Landlord of the occurrence of the damage, Tenant may at its option
terminate this Lease by written notification at such time to Landlord, whereon
all rights and obligations hereunder shall cease.
(d) The Landlord also reserves the right to enter upon the Premises
whenever necessary to repair damage caused by fire or other casualty to the
property of which the Premises are a part, even though the effect of such entry
is to render the premises or a part hereof untenantable. In either event, the
rent shall be apportioned and suspended during the time the Landlord is in
possession, taking into account the proportion of the Premises rendered
untenantable and the duration of the Landlord's possession. Tenant shall,
however, have the right to proceed to recover the excess payment, if any.
Landlord shall make such election to repair the Property and/or Premises or
terminate this Lease by giving notice thereof to Tenant within forty-five (45)
days from the day Landlord receives notice that the Premises have been destroyed
or damaged by fire or other casualty. Landlord shall not be liable for any
damage, compensation or claim by reason of inconvenience or annoyance arising
from the necessity of repairing any portion of the Property, damages to Tenant's
Property, the interruption in the use of the Premises or Tenant's business, or
the termination of this Lease by reason of the destruction of the Premises, the
work shall be commenced promptly and be completed with due diligence taking into
account the time required for Landlord to effect a settlement with and procure
insurance proceeds from the insurer, except for delays due to governmental
regulations, scarcity of or inability to obtain labor or materials, or causes
beyond Landlord's reasonable control.
Article 10. Care, Improvement and Restoration of the Premises.
A. Maintenance and Repair.
1. Tenant shall, throughout the term of this Lease and its sole cost
and expense, take good care of the non-structural interior and exterior of the
Premises and the other improvements now or hereafter located upon the Premises,
including, but not limited to, air conditioners, filters and compressors,
thereto; plumbing, air-conditioning and heating and all other systems serving
the Premises, only for their respective normal, customary and intended uses.
Tenant shall keep the Premises and improvements in good order and condition and
promptly at Tenant's own cost and expense make all repairs necessary to maintain
such good order and condition, whether such repairs be ordinary or
extraordinary, foreseen or unforeseen. When used in this section, the term
"repairs" shall include replacements and renewals when necessary to maintain
such building and other improvements in good order and condition. All such
repairs made by Tenant shall be at least equal in quality and usefulness to the
building and other improvements as the original items or improvements so
repaired.
2. Tenant shall provide at its expense, outside refuse containers and
shall maintain such containers and the area around them in a clean and sanitary
condition.
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AGREEMENT OF LEASE Exhibit 10.20
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3. Tenant shall be responsible for keeping all Common Areas adjacent
to the premises in a clean, orderly condition.
4. Tenant shall maintain and repair at its own cost and expense, all
heating and air conditioning systems and equipment within the Leased Premises.
In addition, Tenant shall, at its own cost and expense, enter into a regularly
preventive maintenance contract with a licensed HVAC contractor. The contract
and contractor must be approved by Landlord and must become effective (and a
copy delivered to Landlord) within (30) days of the date Tenant takes possession
of the Leased Premises. Tenant will give copies of inspections and work orders
to Landlord within 10 days after the service has been performed. If Tenant fails
to enter into such service contract as required, Landlord shall have the right
to do so on Tenant's behalf and Tenant agrees to pay Landlord the cost and
expense of same upon demand.
5. Landlord, at Landlord's sole expense, shall keep and maintain all
structural portions of the Premises, except for repairs made necessary because
of Tenant's and/or the Tenant's Invitee's negligent acts or omissions or abuse
of the Premises, which repairs shall be carried out by Landlord at Tenant's
expense.
B. Alterations. Tenant shall not, without on each occasion first obtaining
Landlord's prior written consent, make or permit to be made any alterations,
improvements or additions to the Premises. Except as otherwise provided herein,
all alterations, improvements, additions, repairs and all other property
attached to or used in connection with the building or any part thereof made or
installed on the Premises by or on behalf of Tenant shall immediately upon
completion or installation thereof be and become part of the Premises and the
property of Landlord upon the expiration or earlier termination of this Lease,
Landlord may require, at its sole election, that Tenant remove all such
improvements installed by Tenant, at Tenant's sole cost and expense.
Article 11. Signs. Tenant agrees it will not erect or maintain any
exterior signs upon the Premises, without first obtaining Landlord's written
approval as to size, projection, location, type of illumination, composition,
etc. Landlord may withhold its consent in its sole discretion, including without
limitation on purely aesthetic grounds. Tenant agrees to maintain any sign or
signs approved by Landlord in good condition and repair at all times. Tenant
shall remove all signs at the termination of this Lease, repairing any damage
caused by the installation and/or removal thereof. No sign, door plaques,
advertisement, or notice shall be displayed, painted or affixed by Tenant on any
part of the Building, parking facilities, or Leased Premises without prior
written consent from Landlord.
Article 12. Mechanic's Liens . (a) No liens. Tenant shall not create
or permit to be created, and will discharge and have removed from the Premises,
the Property, or any portion thereof, any lien, encumbrance or charge arising
out of any work of any contractor, mechanic, laborer, or materialman (levied on
account of imposition of any mechanic's, laborer's or materialman's lien) which
might be or become a lien, encumbrance or charge upon the premises, the
property, or any part thereof or on the income therefrom having priority or
preference over or ranking on a parity with the estate, rights and interest of
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AGREEMENT OF LEASE Exhibit 10.20
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Landlord in the Premises or any part thereof or the income therefrom, and Tenant
will not suffer any other matter or thing whereby the estate, rights, and
interest of Landlord in the Premises, the Property or any part thereof might be
impaired. In no event shall the interest of Landlord in the property be subject
to liens for improvements made by the Tenant and the Tenant shall notify any
contractor making any such improvement of this provision prior to commencement
of such improvement.
(b) Discharge of liens. If any mechanic's, laborer's, or materialman's
lien shall at any time be filed against the Premises, the Property, or any part
thereof, Tenant, within thirty (30) days after notice of the filing thereof,
will cause it to be discharged of record by payment deposit, bond, order of a
court or competent jurisdiction or otherwise. If Tenant shall fail to cause such
lien to be discharged within the 30-day period, then in addition to any other
right or remedy, Landlord may, but shall be obligated to , discharge it either
by paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or bonding proceedings. In any event, Landlord shall be
entitled, if Landlord so elects, to compel the prosecution of any action for the
foreclosure of such lien by the lienor and to pay the amount of the judgement in
favor of the lienor with interest, costs, and allowances. Any amount so paid by
Landlord and all costs and expenses including reasonable attorney fees incurred
by Landlord in connection therewith, together with interest at the highest rate
permitted by law from the respective dates of Landlord's making of the payment
and incurring of the cost and expense, shall constitute Additional Rent payable
by Tenant under this Lease and shall be paid by Tenant to Landlord on demand.
(c) No consent of Landlord Intended. Nothing contained in this Lease
shall be deemed or construed as constituting the consent or request of Landlord,
express or implied to any contractor, subcontractor, laborer or materialman for
the performance of labor or the furnishing of materials of any specific
improvement, alteration to, or repair of the Premises, the Property or any part
thereof, nor as giving Tenant any right, power, or authority to contract for or
permit the rendering of services or the furnishing of materials that would give
rise to the filing of any lien against the Premises, the Property, or any part
thereof.
Article 13. Quiet Enjoyment. Tenant, upon paying the Base Rent, Additional
Rent and other charges herein provided for and observing and keeping all
covenants, agreements and conditions of this Lease, shall quietly have and enjoy
the Premises during the term of this Lease without hindrance or molestation by
anyone claiming by or through Landlord, subject, however to the exceptions,
reservations and conditions of this Lease, and easements for utilities now or
hereafter created by Landlord.
Article 14. Landlord's Right of Entry . Tenant agrees to permit Landlord,
the authorized representatives of Landlord, the holder of any mortgage, or any
prospective mortgagee to enter the Premises during usual business hours for the
purpose of inspecting, exhibiting the Premises to any prospective purchaser,
tenant and/or mortgagee thereof, and making any necessary repairs thereto and
performing any work therein that may be necessary by reason of Tenant's failure
to make such repairs or perform work required of Tenant under this Lease. During
the progress of any work in the Premises, Landlord may keep and store in
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AGREEMENT OF LEASE Exhibit 10.20
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the Premises all necessary materials, tools, and equipment. Landlord shall not
in any event be liable for the inconvenience or other damage to Tenant by reason
of making such repairs or the performance of such work in the Premises and the
obligations of Tenant under this Lease shall not be affected in any manner
whatsoever. Landlord or Landlord's agent may enter the Premises at reasonable
hours to show the Premises to mortgagees, prospective purchasers or tenants, or
to inspect the Premises, or to make repairs required of Landlord under the terms
hereof, or repairs to adjoining space within the Building. During the last sixty
(60) days of this Lease, Landlord may display a "For Rent" sign on the Premises.
Notwithstanding the above, Landlord or its agents, contractors or
sub-contractors shall have the right to enter the Premises, at any time, if
deemed an emergency.
Article 15. Curing Tenant's Defaults. If Tenant shall be in default in the
performance of any of its obligations hereunder, Landlord may (but shall not be
obligated to do so), in addition to any other rights it may have in law or
equity, cure such default on behalf of Tenant, and Tenant shall reimburse
Landlord for any sums paid or costs incurred by Landlord in curing such default,
including reasonable attorney fees and interest at the highest rate permitted by
law on all sums advanced by Landlord as aforesaid, which sums and costs together
with interest thereon shall be deemed Additional Rent payable hereunder within
ten (10) days of Landlord's furnishing Tenant with a written statement itemizing
such Additional Rent.
Article 16. Governmental Regulations. Tenant shall at all times during the
term of this Lease, at Tenant's sole cost and expense, promptly comply with all
laws, ordinances, notices, orders, rules, regulations, and requirements of all
federal, state, and municipal governments, and appropriate departments,
commissions, boards, and officers thereof, and notices, orders, rules, and
regulations of the National Board of Fire Underwriters or any other body now or
hereafter constituted, exercising similar functions relating to the Premises, or
to the use or the manner of use of the Premises or to the sidewalks, curbs, or
common access ways adjoining the Premises. Tenant at all times shall keep in
force all licenses and permits necessary for the lawful use of the Premises and
Tenant shall pay all personal property taxes, income taxes, license fees, and
other taxes which are or may hereafter be assessed, levied or imposed upon
Tenant in connection with Tenant's operation of its business within the
Premises.
Article 17. Condemnation.
(a) Condemnation of Entire Premises. If all of the Premises is taken
or condemned for a public or quasi-public use (a sale in lieu of condemnation to
be deemed a taking or condemnation for purposes of this Lease), this Lease shall
terminate as of the date title to the condemned real estate vests in the
condemnor and the rent herein reserved shall be apportioned and paid in full by
Tenant to Landlord to that date and all rent prepaid for periods beyond that
date shall forthwith be repaid by Landlord to Tenant and neither party shall
thereafter have any liability hereunder.
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(b) Partial Condemnation. If only a part of the Property of which the
Premises occupies all or a part, is taken or condemned for a public or
quasi-public use, Landlord shall have the option of doing such work as may be
reasonably necessary to restore the Property and other improvements upon the
Premises to tenantable condition for Tenant's uses, or of terminating this
Lease. The Landlord reserves the right to enter upon the Premises to carry out
such work affecting the Premises or Property of which the Premises are a part,
even though the effect of such entry is to render the Premises or a part thereof
untenantable. Landlord shall not be liable for any damage compensation or claim
by reason of inconvenience or annoyance arising from the necessity of restoring
any portion of the Property, damages to Tenant's property, the interruption in
the use of the Premises or Tenant's business, or the termination of this Lease
by reason of the taking or condemnation of the Premises. In the event that
Landlord elects to restore the building and Premises, a minimum of sixty (60)
days notice shall be given to the Tenant and the work shall be commenced
immediately after the date when Tenant is required to vacate the Premises, or
the portion to be restored, and shall be completed with due diligence, except
for delays due to governmental regulation, inability to obtain labor or
materials, or causes beyond Landlord's reasonable control.
The prior paragraph notwithstanding, if the floor area of the Premises
is reduced by more than one-fifth or if more than one-fifth of the parking area
allocated to the Premises as depicted on Exhibit A attached hereto is so taken
and such parking area cannot be replaced, Tenant may by notice to the Landlord,
within thirty (30) days after receiving notice of the condemnation from
Landlord, terminate this Lease as of the date when Tenant is required to vacate
the Premises or portion thereof as the result of the condemnation.
If this Lease is not terminated after any such taking or condemnation,
the Base Rent (and correspondingly the monthly installments thereof) and the
Additional Rent shall be equitably adjusted for the balance of the term taking
into account the character and amount of such adjustments, either party may
submit the issue for arbitration pursuant to the rules then in effect of the
American Arbitration Association and the determination or award rendered by the
arbitrator shall be final, conclusive and binding upon the parties and not
subject to appeal, and judgment thereon may be entered in any court of competent
jurisdiction.
(c) Award. Tenant shall have the right to make a separate claim
against the condemnor for removal expense, business dislocation damages and
moving expenses which may be payable to tenants under the laws of Florida.
Except as aforesaid, Tenant hereby waives all claims against Landlord and all
claims against the condemnor, and Tenant hereby assigns to Landlord all claims
against the condemnor including, without limitation, all claims for leasehold
damages and diminution in the value of Tenant's leasehold interest.
Article 18. Subordination and Attornment. This Lease shall be subject and
subordinate at all times to the lien of any first mortgage or other encumbrance
now or hereafter placed upon the Premises without the necessity of any further
instrument or act on the part of Tenant to effectuate such subordination. Tenant
agrees to execute and deliver upon demand such further instrument or instruments
evidencing such subordination and/or attornment to any of the foregoing interest
holders as shall be reasonably desired by any such interest holder or proposed
interest holder.
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Article 19. Assignment and Subletting. Tenant shall not assign, mortgage,
pledge or encumber this Lease, or sublet the whole or any part of the Premises,
without on each occasion first obtaining the prior written consent of Landlord
which consent may be withheld for any or no reason. If any time during the term
of this Lease any part of all of its outstanding voting stock, if Tenant is a
corporation, or any interest in the partnership, if Tenant is a partnership,
shall be transferred by sale, assignment, bequest, inheritance, operation of
law, or other disposition so as to result in a change in the present effective
voting control of Tenant by the person or persons owning a majority of said
outstanding voting stock or a majority interest in the partnership, as the case
may be, on the date of this Lease, then such event shall constitute an
assignment for the purposes of this Lease. In the event of any assignment of
this Lease, Tenant shall, nevertheless, remain liable for the performance of all
the terms, conditions, and covenants of this Lease and any assignee shall be
required to execute and deliver to Landlord and assumption of liability
agreement in form satisfactory to Landlord, including an assumption by the
assignee of all of the obligations of Tenant and the assignee's ratification of
and agreement to be bound by all the provisions of this Lease. Landlord shall be
entitled to, and Tenant shall promptly remit to Landlord, any profit that may
inure to the benefit of Tenant as a result of any permitted subletting of the
Premises or assignment of this Lease. All rental payments made by or on behalf
of assignee shall be remitted directly to Landlord.
Article 20. Abandonment and Vacating. (a) Tenant agrees not to abandon or
vacate the Premises during the term. "Abandon" means the vacating of all or a
substantial portion of the premises by Tenant whether or not Tenant is in
default of the rent payment due under this Lease.
(b) Tenant agrees to remove from the Premises all equipment,
merchandise, and personal property owned, used, or possessed by Tenant or any
other person or entity (hereinafter collectively called the `Personal
Property"), and make repairs to the premises, as necessary, resulting from the
removal of such `Personal Property", upon vacating the Premises. If any Personal
Property remains on the Premises after Tenant vacates the Premises, Landlord may
provide Tenant with written notice stating that such Personal Property remains
on the Premises (but Landlord shall be under no obligation to itemize such
Personal Property). If Tenant has not removed such Personal Property within
three (3) days after such notice, such Personal Property shall be conclusively
deemed abandoned, notwithstanding that title to or a Security Interest in such
Personal Property, may be held by an individual or entity other than Tenant, and
Landlord may dispose of such Personal Property in any manner it deems proper, in
its sole discretion. Tenant hereby waives and releases any claim against
Landlord arising out of the removal and disposition of such Personal Property
and waives and releases any claim to the Personal Property. Tenant shall
indemnify, defend, and hold Landlord harmless for any costs, expenses, or fees
incurred by Landlord in connection with the removal and disposition of such
Personal Property.
Article 21. Tenant's Defaults.
A. Events of Default. If (1) Tenant vacates or abandons the Premises
prior to the Expiration Date, or (2) Tenant fails to fulfill any of the terms or
conditions of this Lease or any other Lease heretofore made by Tenant for space
in the Building or (3) the appointment of a trustee or a receiver to take
possession of all or substantially all of Tenant's assets occurs, or
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AGREEMENT OF LEASE Exhibit 10.20
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if the attachment, execution or other judicial seizure of all or substantially
all of Tenant's assets located at the Premises, or of Tenant's interest in this
Lease, occurs, or (4) Tenant or any of its successors or assigns should file any
voluntary petition in bankruptcy, reorganization or arrangement, or an
assignment for the benefit of creditors or for similar relief under any present
or future statute, law or regulation relating to relief of debtors, or (5)
Tenant or any of its successors or assigns should be adjudicated bankrupt or
have an involuntary petition in bankruptcy filed against it, or (6) Tenant shall
permit, allow or suffer to exist any lien, judgment, writ, assessment, charge,
attachment, or execution upon Landlord's or Tenant's interest in this Lease or
to the Premises, and/or the fixtures, improvements and furnishings located
thereon; then, Tenant shall be in default hereunder.
B. Landlord's Remedies for Tenant's Default.
1 . Landlord's Options. If Tenant is in default of this Lease,
Landlord may, at its option, in addition to such other remedies as may be
available under Florida Law:
(a) terminate this Lease and Tenant's right of possession; or
(b) terminate Tenant's right to possession but not the Lease
and/or proceed in accordance with any and all provisions of paragraph 2 below.
2. Landlord's Remedies.
(a) Landlord may without further notice reenter the Premises
either by force or otherwise and dispossess Tenant by summary proceeding or
otherwise, as well as the legal representative(s) of Tenant and/or other
occupant(s) of the Premises, and remove their effects and hold the Premises as
if this Lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end; and/or
at Landlord's option,
(b) All Rent and all Additional Rent for the balance of the Term
will, at the election of Landlord, be accelerated and the present worth of same
for the balance of the Lease Term, net of amounts actually collected by
Landlord, shall become immediately due thereupon and be paid, together with all
expenses of every nature which Landlord may incur such as (by way of
illustration and not limitation) those for attorneys' fees, brokerage,
advertising, and refurbishing the Premises in good order or preparing them for
re-rental; and/or at Landlord's option,
(c) Landlord may re-let the Premises or any part thereof, either
in the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Lease Term, and may grant concessions or free
rent or charge a higher rental than that reserved in this Lease; and/or at
Landlord's option,
(d) Tenant or its legal representative(s) will also pay to
Landlord as liquidated damages any deficiency between the Rent and all
Additional Rent hereby reserved and/or agreed to be paid and the net amount, if
any, of the rents collected on account of the Lease or Leases of the Premises
for each month of the period which would otherwise have constituted the balance
of the Lease Term.
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AGREEMENT OF LEASE Exhibit 10.20
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3. Landlord's Remedies in Bankruptcy.
(a) Anything contained herein to the contrary notwithstanding, if
termination of this Lease shall be stayed by order of any court having
jurisdiction over any proceeding described in subparagraph 1, of this Paragraph,
or by federal or state statute, then, following the expiration of any such stay,
or if Tenant or Tenant as debtor-in possession or the trustee appointed in any
such proceeding (being collectively referred to as "Tenant" only for the
purposes of this Paragraph) shall fail to assume Tenant's obligation under this
Lease within the period prescribed therefor by law or within fifteen (15) days
after entry of the order for relief or as may be allowed by the Court, or if
Tenant shall fail to provide adequate protection of Landlord's right, title and
interest in and to the Premises or adequate assurance of the complete and
continuous future performance of Tenant's obligations under this Lease,
Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on fifteen (15) days notice to Tenant and upon the
expiration of said fifteen (1 5) day period this Lease shall cease and expire as
aforesaid and Tenant shall immediately quit and surrender the Premises as
aforesaid. Upon the termination of this Lease as provided above, Landlord,
without notice, may re-enter and repossess the Premises using such force for
that purpose as may be necessary without being liable to indictment,
prosecution, or damages therefor and may dispossess Tenant by summary
proceedings or otherwise.
(b) For the purposes of the preceding paragraph (1), adequate
protection of Landlord's right, title and interest in and to the Premises, and
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease, shall include, without limitation, the following
requirements:
(i) that Tenant comply with all of its obligations under
this Lease;
(ii) that Tenant continue to use the Premises in the manner
originally required by this Lease;
(iii) that Tenant pay to Landlord within fifteen (15) days
after entry of such order or the effective date of such stay, as partial
adequate protection against future diminution in value of the Premises and
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease, an additional security deposit in an amount
acceptable to Landlord;
(iv) that Tenant has and will continue to have unencumbered
assets after the payment of all secured obligations and administrative expenses
to assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease;
(v) that if Tenant assumes this Lease and proposes to assign
the same (pursuant to Title 11 U.S.C. S 365, or as the same may be amended) to
any person who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to such court having competent jurisdiction over
Tenant's estate, then notice of such proposed assignment, setting forth (x) the
name and address of such person, (y) all of the terms and conditions of such
offer, and (z) the adequate assurance to be provided Landlord to assure such
person's future performance under this Lease, including, without limitation, the
assurance referred to in Title 11 U.S.C. S 365 (b) (3), as it may be amended,
shall be given
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AGREEMENT OF LEASE Exhibit 10.20
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to Landlord by Tenant no later than fifteen (15) days after receipt by Tenant of
such offer, but in any event no later than thirty (30) days prior to the date
that Tenant shall make application to such court for authority and approval to
enter into such assignment and assumption, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept, or to cause
Landlord's designee to accept, an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person less any brokerage commissions which may be payable out of
the consideration to be paid by such person for the assignment of this Lease;
and
(vi) that if Tenant assumes this Lease and proposes to
assign the same, and Landlord does not exercise its option pursuant to Paragraph
(vii) of this Paragraph, Tenant hereby agrees that:
(A) such assignee shall have a net worth not less than
the net worth of Tenant as of the Commencement Date, or such Tenant's
obligations under this Lease shall be unconditionally guaranteed by a person
having a net worth equal to Tenant's net worth as of the Commencement Date;
(B) such assignee shall not use the Premises except
subject to all the restrictions contained in this Lease;
(C) such assignee shall assume in writing all of the
terms, covenants and conditions of this Lease including, without limitation, all
of such terms, covenants and conditions respecting the Permitted Use and payment
of Rent;
(D) such assignee shall pay to Landlord an amount equal
to the unamortized portion of any construction allowance made to Tenant; and
Article 22. Grace Period and Notice of Default. It is understood and agreed
that neither party hereto will exercise any right or remedy provided for in this
Lease or allowed by law because of default of the other except for the
imposition of late charges and interest, unless such party shall have first
given written notice thereof to the other, and the other within a period often
(10) days thereafter, shall have failed to pay the sum or sums due if the
default consists of the failure to pay money, or if the default consists of
something other than the failure to pay money, shall have failed within ten (10)
days thereafter to begin the correction of the default or fails to actively and
diligently in good faith proceed with and continue the correction of the default
until it shall be fully corrected. However, no such notice from Landlord shall
be required if Tenant shall have temporarily or permanently ceased operating and
using the Premises to the extent and in the manner herein required, or if Tenant
shall have filed a petition in bankruptcy or for reorganization or a bill in
equity or otherwise initiated proceedings for the appointment of a receiver of
Tenant's assets, or if a receiver or trustee is appointed for Tenant and such
appointment and such receivership or trusteeship is not terminated within sixty
(60) days, or Tenant makes an assignment for the benefit of creditors, or if
Tenant is levied upon and is about to be sold upon the Premises by any sheriff,
marshall, or constable. Notwithstanding the foregoing, Landlord shall not be
required to give any notice called for by this section more than two (2) times
in any twelve-(12) month period. Tenant shall also send a copy of any notice of
default directed to Landlord to any mortgagee or
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AGREEMENT OF LEASE Exhibit 10.20
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mortgagees designated by Landlord, and Tenant hereby agrees that any mortgagee
so designated shall be entitled to the same opportunity to cure any default, as
is Landlord.
Article 23. Notice. All notices required or permitted hereunder from either
of the parties to the other shall be in writing and sent by Certified Mail,
return receipt requested. Notices to Tenant shall be addressed to the Premises.
Notices to Landlord shall be addressed to 8186 Baymeadows Way West,
Jacksonville, FL 32256 with a carbon copy to any mortgagee designated by
Landlord. Either party may at any time set forth in writing to the other a
different address to which notices to it shall be sent.
Article 24. Short Form of Lease. It is understood and agreed that the
parties hereto will execute and acknowledge a Short Form of Lease for recording
purposes, if such is requested by Landlord.
Article 25. Parking. Tenant shall not utilize or require more than 8
parking spaces. Initially, 3 parking spaces shall be unassigned and utilized in
the front of the premises and 5 parking spaces shall be unassigned and utilized
in the rear of the premises. Should it become necessary, and at the sole option
of the Landlord, Landlord shall assign and/or reassign parking spaces.
Article 26. Rules and Regulations. Tenant and Tenant's agents, employees,
and invitees shall fully comply with all requirements of the Rules and
Regulations (as changed from time to time as hereinafter provided) which are
attached hereto as Exhibit "D" and made a part hereof. Landlord shall at all
times have the right to change such Rules and Regulations or to promulgate other
Rules and Regulations in such reasonable manner as Landlord, in its sole
discretion, may deem advisable; provided, however, that such changes shall not
become effective and a part of this Lease until a copy thereof shall have been
delivered to Tenant. Tenant shall further be responsible for compliance with
such Rules and Regulations by the employees, servants, agents, visitors, and
invitees of Tenants.
Article 27. Definition of "Landlord". The word "Landlord" is used herein to
include the Landlord named above and any subsequent owner of the Premises, as
well as their respective heir, personal representative, successors and assigns,
each of whom shall have the same rights, remedies, powers, authorities, and
privileges as he would have had he originally signed this Lease as Landlord. Any
owner of the Premises, whether or not named herein, shall have no liability
hereunder after he ceases to hold title to the said real estate, except for the
obligations that may have theretofore accrued. Neither Landlord nor any
principal of Landlord, whether disclosed or undisclosed shall have any personal
liability with respect to this Lease or the Premises, and if Landlord is in
breach or default with respect to its obligations or otherwise under this Lease,
Tenant shall look solely to the Premises and rents, profits, and issues to be
received therefrom.
Article 28. Definition of "Tenant". The word "Tenant" is used herein to
include the Tenant named above as well as its permitted successors and assigns,
each of which shall be under the same obligations, liabilities, and disabilities
and have only such rights, privileges, and
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AGREEMENT OF LEASE Exhibit 10.20
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powers shall inure to the benefit of any assignee of Tenant, immediate or
remote, unless the assignment to such assignee is permitted or has been approved
in writing by Landlord.
Article 29. Captions. The captions in this Lease are for convenience only
and are not a part of this Lease and do not define, limit, describe, or amplify
the terms and provisions of this Lease or the scope or intent thereof.
Article 30. Entire Agreement. This Lease and the exhibits attached set
forth all the promises, agreements, conditions, and understandings between
Landlord and Tenant with respect to the premises. There are no promises,
agreements, conditions, or understandings between Landlord and Tenant other than
herein set forth. This Lease shall not be modified except by an instrument in
writing executed by both parties.
Article 31. Jury Trial; Attorney's Fees. To the extent permitted by law,
Tenant hereby waives: (a) jury trial in any action or proceeding regarding a
monetary default by Tenant and/or Landlord's right to possession of the
Premises, and (b) in any action or proceeding by Landlord for eviction where
Landlord has also filed a separate action for damages, Tenant waives the right
to interpose any counterclaim in such eviction action. Moreover, Tenant agrees
that it shall not interpose or maintain any counterclaim in such damages action
unless it pays and continues to pay all Rent, as and when due, into the registry
of the court in which the damages action is filed. In the event of any dispute
hereunder, or any default in the performance of any term or condition of this
Lease, the prevailing party in litigation shall be entitled to recover all costs
and expenses associated therewith, including reasonable attorney's fees.
Article 32. N/A
Article 33. Early Termination. No termination of this Lease or the
prosecution of a civil action by Landlord to obtain a writ of possession to
dispossess Tenant prior to the normal ending thereof by the lapse of time or
otherwise shall affect Landlord's right to collect rent and other charges due,
by acceleration, or otherwise as provided hereunder.
Article 34. Gender. The parties "Landlord," "Tenant," and "Agent" and
pronouns relating thereto, as used herein, shall include male, female, singular,
and plural, corporation, partnership, or individual, as may fit the particular
parties.
Article 35. Remedies Cumulative. The rights given herein are in addition to
any rights that may be given by any statue or otherwise.
Article 36. Landlord's Liability. Landlord shall have no liability or
obligation to Tenant with respect to this Lease except insofar as Landlord may
have any right, title, or interest in and to the Building in which the Premises
is located, it being understood and agreed that Landlord shall have no personal
liability hereunder.
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AGREEMENT OF LEASE Exhibit 10.20
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Article 37. Joint and Several Liability. If there is more than one Tenant,
the obligations imposed shall be joint and several.
Article 38. Commission. Landlord and Tenant covenant, represent, and
warrant that they have had no dealing or negotiations with any broker or agent
other than Commercial Jacksonville in connection with the consummation of this
Lease, and they covenant and agree to pay, hold harmless and indemnify each
other from and against any and all costs, expenses (including reasonable
attorney's fees before trial, at trial, and on appeal) or liability for any
compensation, commissions, or charges claimed by any broker or agent, other than
the Broker set forth in this paragraph with respect to this Lease or the
negotiation thereof. During the period of the initial term, not to exceed three
years, a 4% commission based on the net base rents, including expansion if
applicable, will be payable every ninety days, in advance, as long as Tenant is
not in default and has not vacated the premises. The first payment will be paid
upon our receipt of the first month's rent. No commission will be paid on
renewals.
Article 39. Other Taxes; Sales Taxes. (a) Tenant shall be liable for and
shall pay before delinquency any and all taxes, assessments, fees, or public
charges assessed against, imposed, or levied upon the trade fixtures,
furnishings, equipment, and all other personal property contained in the
Premises. If any such taxes or charges are levied against Landlord or Landlord's
property, and if Landlord elects to pay the same, or if the assessed value of
Landlord's property is increased by the inclusion of personal property contained
in the Premises and Landlord elects to pay the taxes or charges based on such
increase, Tenant shall pay Landlord upon demand that part of such taxes or
charges for which Tenant is responsible hereunder.
(b) Tenant shall pay as and when due all sales taxes or other
impositions levied or imposed upon the rentals and other sum due hereunder.
Article 40. Heirs and Assigns. The provisions of this Lease shall bind and
inure to the benefit of Landlord, Tenant, Agent, and their respective
successors, heirs, legal representatives, and where permitted, assigns. It is
understood, however, that the term "Landlord," as used in this Lease, means only
the owner from time to time of the Building so that, in the event of any sale or
sales of said property or of any lease thereof, the Landlord named herein shall
be and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing thereafter; and it shall be deemed without further
agreement that the purchaser or the lessee, as the case may be, has assumed and
agreed to carry out any and all covenants and obligations of Landlord hereunder
during the period such party has ownership or leasehold rights of the Building.
Should the land and the entire Building be severed as to ownership by sale
and/or lease, then the owner of the entire Building or tenant of the entire
Building who has the right to lease space in the Building to others shall be
deemed the "Landlord." Tenant shall be bound to any succeeding party Landlord
for all the terms, covenants, and conditions hereof, and shall execute any
attornment agreement not in conflict herewith at the request of any such
succeeding party Landlord.
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AGREEMENT OF LEASE Exhibit 10.20
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Article 41. No Implied Waiver. The failure of Landlord to insist at any
time upon the strict performance of any covenant or agreement herein, or to
exercise any option, right, power, or remedy contained in this Lease, shall not
be construed as a waiver of or a relinquishment thereof for the future. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Base Rental, additional rent, or any other sum herein provided to
be paid by Tenant shall be deemed to be other than on account of the earliest
such payment due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Base Rental, additional rent,
or any other sum herein provided to be paid by Tenant be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Base Rental, additional rent, or
any other sum herein provided to be paid by Tenant, or pursue any other remedy
provided for in this Lease.
Article 42. Tenant Corporation, Partnership, or Individual. If Tenant
executes this Lease as a corporation, each of the persons executing this Lease
on behalf of Tenant does hereby covenant, warrant, and represent that Tenant is
a duly authorized and existing corporation, that Tenant has and is qualified to
do business in Florida, that the corporation has full right and authority to
enter into this Lease, and that each and all persons signing on behalf of the
corporation were authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing covenants and warranties.
Article 43. Estoppel Certificates. Tenant shall, at any time and from time
to time, within ten (10) days after receipt of a written request from Landlord,
execute, acknowledge, and deliver to Landlord or such other persons or entities
and Landlord may designate, a statement in a form reasonably satisfactory to
Landlord, executed by Tenant, certifying: (a) that this Lease is unmodified and
in full force and effect (or, if there have been modifications, that this Lease
is in full force and effect as modified and setting forth such modifications);
(b) the date or dates to which the Base Rental has been paid; (c) the
Commencement Date; (d) the anticipated termination date of this Lease; (e) that
no default exists under this Lease (or the existence of any known defaults); (f)
the existence of any set-offs against or defenses to the enforcement of the
terms and conditions of this Lease, and the particulars of any such set-offs or
defenses; and (g) any other information which Landlord may reasonably request.
It is intended that any such statement by Tenant may be relied upon by Landlord
and by any prospective purchaser or mortgagee of the Premises or the Building or
both, or any assignee, sublessee, governmental authority, or public agency.
Article 44. Holding Over. Should Tenant or any of its successors in
interest continue to hold the Premises after termination of this Lease, whether
such termination occurs by lapse of time or otherwise, such holding over shall
constitute and be construed as a tenancy from month-to-month only, at a monthly
rental equal to twice the monthly rent (including Base Rental, adjusted rental,
Operating Expenses, and utility charges) provided herein at the time of such
termination hereof, Tenant shall be regarded as a tenant from month-to-month;
subject, however, to all the terms, provisions, covenants, and agreements on the
part of the Tenant hereunder. No payments of money by Tenant to Landlord after
the termination of this Lease
17
AGREEMENT OF LEASE Exhibit 10.20
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shall reinstate, continue, or extend the Term and no extension of this Lease
after the termination hereof shall be valid unless and until the same shall be
reduced to writing and signed by both Landlord and Tenant. Tenant shall be
liable to Landlord for damage which Landlord shall suffer by reason of Tenant's
holding over and Tenant shall indemnify Landlord against all claims made by any
other tenant or perspective tenant against Landlord resulting from delay by
Landlord in deliver possession of the Premises to such other Tenant or
prospective Tenant.
Article 45. Hazardous Substances. Tenant hereby expressly represents and
warrants that it will not use the Premises to generate, manufacture, refine,
transport, treat, store, handle, discharge, or dispose of hazardous or toxic
wastes and substances, and that Tenant has not and will not permit any of such
substances to be brought onto the Premises or into the Project or onto the real
property upon which the building is located. Landlord, for itself, and on behalf
of its agents, employees, consultants, and contractors reserves the right to
enter upon the Premises to perform such tests on the Premises as are reasonably
necessary to ensure that Tenant has complied with this representation and
warranty.
The term "hazardous or toxic wastes and substances" shall be
deemed to include all hazardous, toxic, radioactive substances, wastes or
materials, all pollutants or contaminants, asbestos, pesticides, gasoline,
diesel fuel, and other petroleum products, polychlorinated biphenyls (PCB's) and
other similar substances and all raw materials containing such substances that
are included under or regulated under the Comprehensive Environmental Response,
Compensation and Liability Act (42 USC 6901 et seq., "CERCLA") and any other
local, state, or federal law, either by definition, determination or
identification in such laws or by judicial or administrative interpretation of
such laws, together with any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority or that
may or could pose a hazard to the health and safety of the occupants of the
Premises or the building or the owners and occupants of property adjacent to the
Premises or the building.
In the event that Tenant receives any notice of violation,
summons, citation, directive, letter, or other communication from any federal,
state or local agency or local governmental body concerning the presence,
release, or threatened release of hazardous or toxic wastes or substances,
Tenant shall immediately notify Landlord of the fact and content thereof
In the event it is determined that any action must be taken with
regard to the presence of any such hazardous or toxic wastes and substances on
the Premises, Tenant covenants and agrees (a) to take all such actions necessary
to bring promptly the Premises into compliance with all applicable laws or
governmental regulations and (b) to secure evidence acceptable to Landlord that
all governmental agencies and entities having jurisdiction over the Premises,
the real property of which the Premises are a part, and the hazardous or toxic
wastes and substances have certified that the Premises and the real property are
in compliance with all applicable laws and governmental regulations, all at
Tenant's sole cost and expense. Tenant acknowledges that Landlord is relying on
the warranties, representations, and covenants
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AGREEMENT OF LEASE Exhibit 10.20
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contained in this paragraph in executing this lease agreement, and Tenant agrees
to defend, indemnify, and hold Landlord and its successors and assigns harmless
of and from any and all actions, suits, claims, remedial orders, judgements,
decrees, and damages of any nature (including but not limited to, attorneys'
fees and costs, consultants' fees, cleanup, removal, and restoration costs, and
environmental damages provided for under all federal, state, and local
environmental laws) arising from or in relations to the presence, generation,
manufacture, refining, transportation, treatment, storage, handling, disposal,
discharge, release, or spill of any hazardous or toxic wastes, or substances in
or on the Premises during the term of this Lease unless caused by Landlord. The
foregoing indemnification and hold harmless obligations shall be in addition to
any and all remedies otherwise available to Landlord hereunder. The provisions
of this paragraph shall be deemed to survive, and continue in full force and
effect, after the termination, sale assignment, or sublease of this Lease.
In the event of a violation of the representations, covenants,
and warranties contained herein, Landlord may, at its sole discretion; (i)
declare a default hereunder; (ii) require Tenant to take actions and expend
whatever funds are necessary to correct such violation and to correct all
adverse consequences of such violation so that full compliance with all
applicable federal, state, and local laws, rules and regulations are insured; or
(iii) Landlord may take such action and expend such sums on Tenant's behalf to
ensure that all such violations are all adverse consequences of such violations
are corrected and that the Premises (and the real estate of which the Premises
are a part) are brought into full compliance with all applicable federal, state,
and local laws, rules, and regulations. In the event Landlord elects to expend
moneys to correct any such violations, such moneys shall be deemed Additional
Rent, payable within five (5) days of Tenant's receipt of an invoice thereof Any
such action taken by Landlord shall not constitute a waiver of any claim that
Landlord has or may have against Tenant or any other person to recover any loss
incurred by Landlord as a result of such violation.
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AGREEMENT OF LEASE Exhibit 10.20
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal the day
and year first above written. Signed, sealed and delivered in the presence of:
G.F. Florida Operating Alpha, Inc.
A Florida Corporation
/s/ Janet K. Salem
- ------------------------
Janis K. Salem By: /s/ Christopher J. Gazes
-----------------------------
Christopher J. Gazes
Its: President
"CORPORATE SEAL"
EMTEC, Inc. A Delaware Corporation
/s/
- -------------------------
Notary Public, Gwinnett County, GA By: /s/ Ronald A. Seitz
My Commission Expires March 1, 2004 ----------------------------
Ronald A. Seitz
Its: EUP
"Corporate Seal"
Emtec, Inc.
WHEN EXECUTED, PLEASE RETURN ALL ORIGINAL COPIES OF THE
LEASE TO LANDLORD FOR EXECUTION. LANDLORD WILL THEN
RETURN ONE FULLY EXECUTED COPY TO TENANT.
20
AGREEMENT OF LEASE Exhibit 10.20
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EXHIBIT B
SPECIFICATIONS FOR
EMTEC, 1NC.
IMPROVEMENTS FOR
7843 BAYBERRY ROAD
JACKSONVILLE, FLORIDA
32256
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AGREEMENT OF LEASE Exhibit 10.20
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1. General. The building shall be generally of structural steel and
concrete "tilt-up" construction of two-story height. Design and construction
shall comply with all governing codes and ordinances. Gross floor area of the
premises shall be as follows:
Lavatory - 1,080 sq. ft.
Warehouse- 2,260 sq. ft.
-----
Total 3,340 sq. ft.
2. Structural. Structural Steel forming shall be a A36 structural steel,
fabricated and erected in compliance with AISC specifications. Steel joist shall
meet AISC and SJI specifications. Roof deck shall be 1.5 inch deep rigid steel.
Clear height shall be 22'.
3 . Exterior Walls. Exterior walls shall be of reinforced concrete
"tilt-up" construction, structural beams and columns as required.
4. Roof. Roof shall be of a bondable type with rigid insulation as
manufactured by Johns-Manville or equal. Roof shall be sloped for drainage
including gutters and downspouts.
5. Floor Slabs. Floor slabs shall be 5 inch thick concrete.
6. Interior Finishes. All partitions shall be constructed using wood or
metal studs with painted gypsum board and insulated.
A finished ceiling will be provided in offices and rest room.
Ceiling to be 2' X 2' acoustical ceiling board laid in exposed tee suspension
system and insulated.
All doors to be solid-core wood, stained or painted.
Floor coverings and cove base in offices and lavatory shall be a
building standard with color selected by Tenant.
7. Mechanical.
A. Offices and Lavatories.
These areas will be heated and air-conditioned. The system was
designed by an Engineer to provide an electrical heating unit and
air cooled air conditioning system through a supply duct, return
air register system to give automatic cooling throughout the
summer season. Heating system shall be designed to maintain an
indoor temperature of 72 degrees F. throughout the area with an
external temperature of 0 degrees F. Air conditioning shall be
designed to maintain an indoor temperature of 78 degrees F. with
a relative humidity of 50% when the outside temperature is 95
degrees F.
22
AGREEMENT OF LEASE Exhibit 10.20
B.Warehouse
1 - Warehouse exhaust fan.
8. Electrical.
A. Lighting in office will be recessed 2' X 4' fixtures providing
approximately 80 foot candles of lighting in the office area.
Ample duplex receptacles and telephone outlets are existing.
B. Warehouse. 208/120 volt three-phase electrical system. Warehouse
area to be lighted with strip fluorescent fixtures. One 96"
two-tube fixture per 550 sq. ft. of floor area.
C. Exterior.
Mercury vapor floodlights or high pressure sodium fixtures will
be mounted on the building.
9. Plumbing. A complete plumbing system will be provided to accommodate the
following fixtures:
1-Shower 1-Commode 1-Restroom Sink 1-Water Heater
1-Warehouse Sink 1-Kitchen Sink
10. Loading. One dock high loading with a 10' X 12' overhead door.
11. Paving and Landscaping. All paving shall consist of asphaltic concrete
pavement with a minimum stone base coarse of 6" plus 1 -1/2" of asphalt topping.
The building is fully landscaped.
12. Party Walls. All party walls separating tenants shall be constructed of
wood or metal studs with sheet rock finished and insulated.
13. Not included. Any item not specifically listed herein, including
without limitation, burglar alarms and/or ADT systems, employee time clocks,
curtains, drapes, intercommunications systems, and dumpsters.
NOTE: 1. Tenant shall be responsible for the installation of any item
or improvement not included in these specifications, as may required for
Tenant's use and possession of the Premises, in accordance with the plans and
specifications for the construction of the Premises and the terms of the Lease
to which these specifications are attached.
23
EXHIBIT "C"
Article 6.A. The Base Rent payable in advance on the first day of each month
during the term hereof is:
Rental Annual Monthly
Period Base Rent Base Rent
- ------ --------- ---------
3/1/02-2/28/03 $21,042.00 $1,753.50
3/1/03-2/29/04 $21,876.96 $1,823.08
3/1/04-2/28/05 $22,745.40 $1,895.45
Article 6.B. Additional Rent.
1. Building Operating Expenses.
The Building's square footage is 70,000 square feet, of which Tenant
occupies 3,340 square feet. Therefore, Tenant's pro rata share for purposes of
the foregoing Lease is 4.77 % and Tenant shall pay, as Additional Rent, it's pro
rata share of the estimated Building Operating Expenses as defined in Article
6.B. 1.
Cost Per
Square
Expense Foot
- -------
Utilities
Water, Sewer, Irrigation, Fire Stand By .13
Fee, & Common Area Electric
Real Estate Taxes .53
Landscaping .10
Deerwood Center Assessment For Common Area
Maintenance & Guard Service .05
Building Maintenance .23
Insurance .07
Management Fee (4% of Gross Rents) .31
-----
Total Estimated Building Expenses Per Square Foot $1.42
24
EXHIBIT "D
RULES AND REGULATIONS
1. Tenant shall have the exclusive right to park in areas designated by Landlord
in Exhibit A. Only vehicles that reasonably fit within the lined spaces may use
the parking facilities, which may not be used for the continuous parking of any
vehicle or trailer, regardless of size. No parking is allowed in roadways,
driveways, fire lanes, service areas, walkways, building entrances, or any other
area not designated for parking. Any trucks serving the Premises shall be parked
directly on the east side of the Premises, and shall not interfere with other
occupants' access to other premises, parking, or other common areas. Landlord
shall not be responsible for any illegally parked vehicle that Landlord shall
have towed.
2. Landlord will provide at Tenant's expense identification signage for the
Premises, such sign-age to be coordinated throughout the Project for uniformity
and attractiveness. No sign, tag, label, picture, advertisement, or notice shall
be displayed, distributed, inscribed, painted, or affixed on any part of the
Premises visible from outside of the Building or the Premises without the
prior-written consent of Landlord.
3. No additional locks shall be placed on any door in Building without the prior
written consent of Landlord. Landlord will furnish two keys to each lock on
doors in the Leased Premises and Landlord, upon request of Tenant, shall provide
additional duplicate keys at Tenant's expense. Landlord will not permit entrance
to Tenant's Premises by use of a pass key to any person at any time without
permission of Tenant, except employees, contractors, or service personnel
directly supervised by Landlord.
4. Tenant will refer all contractors, contractor representatives, and
installation technicians rendering any service on or to the Premises to Landlord
for approval and supervision before performing any contractual service. This
provision shall apply to all work in the Building, including installation of
electrical devices and attachments, and installations of any nature affecting
floors, walls, woodwork, trim, doors, windows, ceilings, equipment, or other
physical portion of the Premises or Building. All service work performed will be
subject to applicable permitting requirements. Landlord shall not be responsible
for any repairs or installations done by Tenant or Tenant's agents, nor be held
responsible for any code violations resulting from it.
5. Tenant shall not place, install, or operate on the Premises or in any part of
the Building any machine, equipment, or stove, or conduct mechanical operations,
or place or use in or about the Premises any explosive, flammable, caustic,
noxious, or hazardous material without the prior-written consent of Landlord.
6. No Tenant shall do or permit to be done within or about the Premises or
Building anything which would annoy, disturb, or interfere with the rights of
other occupants of the Building.
25
7. There shall be no outside storage of goods, supplies, equipment, pallets,
disabled vehicles, or any other material. All storage must be within the
Premises, and, along with any other non-office use area, be kept at all times
from view from outside of the Premises through doors, service doors, windows, or
otherwise.
8. Exterior windows shall at all times be kept clean and whole. All plate and
other glass now in Leased premises or Building which is broken through cause
attributed to Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors, or invitees shall be replaced by and the expense
of Tenant under the direction of Landlord.
9. No Tenant shall at any time occupy any part of the Premises or Building as
sleeping or lodging quarters or for the cooking or preparation of food without
the prior written consent of the Landlord.
10. No boats, vehicles of any description (except for automobiles or small
trucks through rear service doors for the purpose of and during loading or
unloading), animals, fish, fowl, reptile, or insect shall be brought into the
Premises or Building without prior-written consent of the Landlord.
11. The plumbing 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
thrown therein, and the expense of any breakage, stoppage or damage resulting
from a violation of this provision shall be borne by Tenant, who shall, or whose
officers, employees, agent servants, patrons, customers, licensees, visitors or
invitees shall, have caused it.
12. Each Tenant agrees to keep the areas immediately in front, behind, and
beside the Premises clean and free of all trash and debris. In the event Tenant
must dispose of crates, boxes, etc. which will not fit into wastepaper baskets,
it will be the responsibility of Tenant to dispose of it properly.
13. Tenant shall not canvass or conduct surveys with or among occupants of the
Project without the prior-written consent of Landlord, and shall cooperate to
prevent the same.
14. Tenant shall not paint or otherwise change the appearance of Premises' door,
doorframes, windows, window frames, or hardware.
15. Tenant shall not conduct its business and/or control its officers, agents,
employees, servants, patrons, customers, licensees, and visitors in such a
manner as to create any nuisance or interference with, annoy, disturb any other
tenant or Landlord in its operation of the Building or commit waste or suffer or
permit waste to be committed in Leased Premises.
26
16. Landlord shall not be responsible to any occupant for the non-observance or
violation of any of these "Rules and Regulations" by any other occupant.
Landlord shall have the right from time to time to modify, add to, or delete
from the "Rules and Regulations" at Landlord's sole discretion. Any additional
"Rules and Regulations" shall be binding upon the parties hereto as if they had
been present herein at the time of execution of this Lease.
17. The movement of furniture, equipment, machines, merchandise or materials
within, into or out of the leased Premises, shall be restricted to time, method,
and routing of movement as determined by Landlord upon request from Tenant and
Tenant shall assume all liability and risk to Property, leased Premises, and
Building in such movement. Tenant shall not move furniture, machines, equipment,
merchandise or materials within, into or out of the Building, Leased Premises or
warehouse facilities without having first obtained a written permit from
Landlord twenty-four (24) hours in advance. Safes, large files, electronic data
processing equipment, any other heavy equipment or machines shall be moved into
Leased Premises, or Building, only with Landlord's written consent and placed
where directed by Landlord.
18. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from Leased Premises, regardless of how or
when loss occurs.
19. Tenant, its officers, agents, servants or employees shall do no painting or
decorating in Leased Premises; or mark, paint or cut into, drive nails or screw
into nor in any way deface any part of Leased Premises or Building without the
prior written consent of Landlord. If Tenant desires a signal, communication,
alarm or other utility or service connection installed or changed, such work
shall be done at expense of Tenant, with the approval and under the direction of
Landlord.
20. Tenant, its officers, agents, servants and employees shall not permit the
operations of any musical or sound-producing instruments or device which may be
heard outside Leased Premises, or which may emanate electrical waves which will
impair radio or television broadcasting or reception from or in Building.
21. Tenant, its officers, agents, servants and employees shall, before leaving
Leased Premises unattended, close and lock all doors and shut off all utilities;
damage resulting from failure to do so shall be paid by Tenant. Each Tenant,
before the closing of the day and leaving the said Premises shall see that all
doors are locked.
22. Tenant shall give Landlord prompt notice of all accidents to or defects in
air conditioning equipment, plumbing, electric facilities or any part or
appurtenance of Leased Premises.
23. Neither Tenant nor any officer, agent employee, servant, patron, customer,
visitor, licensee or invitee or any Tenant shall go upon the roof of the
Building, without the written consent of the Landlord.
27
24. If the Leased Premises demised to any Tenant become infested with vermin,
such Tenant, at its sole cost and expense, shall cause its Premises to be
exterminated from time to time to satisfaction of Landlord and shall employ such
exterminators therefor as shall be approved by Landlord.
25. Tenant shall not install any antenna or aerial wires, radio or television
equipment or any other type of equipment inside or outside of the Building
without Landlord's prior approval in writing and upon such terms and conditions
as may be specified by Landlord in each and every instance.
28
TENANT'S CERTIFICATE OR CORPORATION RESOLUTION
AND
AUTHORIZATION OF AGENCY
It is hereby certified that a meeting of a quorum of the directors of
EMTEC, Inc. a Delaware corporation, which is the Tenant under the Lease to which
this Certificate is attached, was held on 2/22, 2002 and that it was resolved
to enter into said Lease and further that the officers of the corporation, and
Ronald A. Seitz as agent of the corporation, have been authorized, empowered,
and directed in the corporate name and with the corporate seal to execute and
deliver any or all documents and to pay all rent, fees, and charges necessary to
carry out the entry into and compliance with said Lease.
EMTEC, Inc.
A Delaware Corporation
By: /s/ Ronald A. Seitz
---------------------
Ronald A. Seitz
Secretary
29
[FLOOR PLAN]
5 Unassigned Parking Rear
EXHIBIT A