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Exhibit 10(b)
REAL PROPERTY LEASE
THIS REAL PROPERTY LEASE ("Lease") is made and entered into as of the last
date of execution by the parties hereto, by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIVING TRUST (together "Landlord"), and FLORAFAX
INTERNATIONAL, INC., a Delaware corporation ("Tenant"). For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, office and warehouse space located within Landlord's building
("Building"), which office and warehouse space contains a total of approximately
ten thousand thirteen (10,013) square feet in area ("Premises"), being comprised
of approximately seven thousand two hundred eighty-five (7,285) square feet of
office space and two thousand seven hundred twenty-eight (2,728) square feet of
warehouse space, as depicted on EXHIBIT "A", attached hereto and incorporated
herein. The actual square footage of office and warehouse space shall be
ascertained by Landlord prior to the Rent Commencement Date (defined below) and
shall be determined in accordance with the Building Owner's and Manager's
Association ("BOMA") standards. Landlord shall deliver written notice of
Landlord's determination of such square footage within ten (10) days after such
calculation is made. If Tenant disputes such determination in writing within
thirty (30) days of its receipt of such written notice from Landlord, the
parties shall meet in good faith to resolve the issue, barring which the issue
shall be resolved through arbitration in accordance with arbitration procedures
promulgated by the American Arbitration Association. The Premises is situated in
the City of Tulsa, Oklahoma, and is commonly referred to as ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. TERM, EFFECTIVE DATE; RENT COMMENCEMENT DATE.
a. TERM. The term of this Lease ("Term") shall be five (5) years from
the "Rent Commencement Date" (as hereinafter defined). The Term shall commence
on the Rent Commencement Date and shall end at 12:01 A.M. on the date which is
five (5) years after the Rent Commencement Date.
b. EFFECTIVE DATE. The term "Effective Date" shall mean the latest date
of execution of this Lease by the parties hereto.
c. LEASE YEAR. The term "Lease Year" shall mean any period of twelve
(12) calendar months commencing on the Rent Commencement Date or an anniversary
thereof and ending on the last day of the twelfth (12th) month thereafter.
d. RENT COMMENCEMENT DATE. The term "Rent Commencement Date" shall mean
the earlier of (i) the date upon which Tenant opens for business at the
Premises, or (ii) the date that the Landlord's Work (hereinafter defined) for
the Premises is completed, it being Landlord's estimate that the Premises will
be "ready for occupancy" on or before September 1, 1997. Notwithstanding the
above-stated language, Tenant is not required to open for business at the
Premises prior to September 1, 1997.
3. LANDLORD'S WORK. Landlord shall, at Landlord's sole cost and expense,
provide the improvements ("Landlord's Work") for the Premises described in
EXHIBIT "B" attached hereto and incorporated herein. Upon completion of
Landlord's Work, Landlord shall deliver the Premises to Tenant. Landlord
estimates that the Premises will be "ready for occupancy" on or before September
1, 1997. In the event Landlord fails to deliver the Premises to Tenant in a
"ready for occupancy"
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condition, on September 1, 1997, then Landlord shall reimburse Tenant, upon
written demand, all rental and other charges incurred by Tenant under its
existing lease, dated September 1, 1994, by and between 4175 South Memorial
Development Co., as landlord, and Tenant, as tenant. In the event Landlord fails
to so reimburse Tenant, then upon Tenant's occupancy of the Premises, Tenant
shall be entitled to offset such sums from the Base Rent owing to Landlord
hereunder.
4. RENT.
a. BASE RENT. During the Term of this Lease, Tenant shall pay to
Landlord, as base rent ("Rent") for the Premises, commencing on the Rent
Commencement Date, an annual sum equal to Four Dollars ($4.00) per square foot
(being approximately Forty Thousand Fifty-Two Dollars ($40,052.00), payable on a
monthly basis in the approximate sum of Three Thousand Three Hundred
Thirty-Seven and 67/100 Dollars ($3,337.67). If the Rent Commencement Date is a
day other than the first day of a month, the Rent for the first and last month
of the Term shall be prorated.
b. PAYMENT DATE. Rent is payable in advance on or before the first (1st)
day of each and every calendar month, at the address of Landlord set forth
herein, without demand.
5. CONDITION OF THE PREMISES. Landlord warrants that it has good title to
the Premises; that at the beginning of the Term, Landlord shall deliver
possession of the Premises to Tenant free of all other tenancies in the
Premises; and that at such time, the condition of the Premises will comply with
all laws and ordinances applicable to the Premises and its intended use.
6. QUIET ENJOYMENT. Landlord agrees that if Tenant is not in default
hereunder, Tenant's quiet and peaceable enjoyment of the Premises during the
Term of this Lease shall not be disturbed by Landlord.
7. USE. Tenant shall use and occupy the Premises for computer and/or
telemarketing operations or any other lawful business.
8. LAWS AND STANDARDS. Notwithstanding the terms of Section 5 above, during
the Term, Tenant shall promptly comply with all laws, ordinances, rules and
regulations of all Federal, state, county and municipal governments now in force
or that may be enacted hereafter, with all directions, rules and regulations of
the fire marshal, health officer, building inspector or other proper officers of
the governmental agencies having jurisdiction and with such standards
established from time to time by the National Board of Fire Underwriters of the
National Fire Protective Association, or any similar bodies which are applicable
to Tenant's use and occupancy of the Premises.
9. UTILITIES AND OTHER COSTS.
*a. From and after the Rent Commencement Date, Tenant shall pay seventy
percent (70%) of all water, fuel, light, power, heat, security system services,
sewer and rubbish services supplied to the Premises. Accordingly, Landlord shall
forward to Tenant, each month, copies of all invoices from said providers.
Tenant shall remit to Landlord, within ten (10) days of Tenant's receipt
thereof, seventy percent (70%) of said invoices. Landlord shall not be liable to
Tenant if said utilities or services are interrupted or terminated because of
necessary repairs, installations, improvements or any cause beyond Landlord's
control; provided however, if Tenant
* if Florafax is the only occupant they will pay 100%.
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is unable to operate its business, there shall be an abatement of all rental
obligations hereunder during such time period.
b. Tenant shall, at Tenant's expense, furnish, install and maintain
Tenant's own telephone, computer, wireless and any other telephone and
electronic equipment deemed necessary by Tenant, including all wiring,
electrical, hookups and connections, false flooring or any other requirements
for the operation of such equipment. From and after the Rent Commencement Date,
Tenant shall pay one hundred percent (100%) of all telephone, computer and
related bills. Tenant's obligations contained in this Subsection (b) are
exclusive of the general utility bills as indicated in Subsection (a) above.
10. REPAIR AND MAINTENANCE. Except for repairs caused by the negligent acts
or omissions of Tenant, its agents, employees or assigns, Landlord shall have
the obligation to maintain and keep in repair the exterior walls, roof, and
foundation of the Building, and the sewer, water, gas and electric lines, as
well as all other plumbing, heating and air conditioning equipment relating to
the Building and the Premises. Except for repairs caused by the negligent acts
or omissions of Landlord, its agents, employees or assigns, Tenant shall keep
and maintain the Premises in a clean and sanitary order and in good condition
and repair; including but not limited to the floors, windows, doors, ceilings,
and interior walls.
11. ALTERATIONS; SIGNS.
a. Tenant shall have the right to make structural and non-structural
changes or alterations to the Building or improvements on the Premises. Prior to
the commencement of any construction for alterations, Tenant shall furnish to
Landlord, for its approval, which shall not be unreasonably withheld or delayed,
plans and specifications for such alterations. In the event Landlord fails to
approve or disapprove, as the case may be, such plans within five (5) days from
the date of submission to Landlord, then Landlord shall be deemed to have
approved the same.
b. Tenant shall have the right, at Tenant's sole cost, to erect,
install, maintain, and operate on the Premises such equipment, trade and
business fixtures and signs as Tenant may deem advisable for the operation of
Tenant's business. Such items shall not be deemed to be part of the Premises,
but shall remain the property of Tenant. All shall installations shall be
effected in compliance with applicable governmental laws, ordinances and
regulations. At any time during the Term of this Lease, Tenant shall have the
right to remove its equipment, trade or business fixtures, signs and other
personal property from the Premises provided that (i) Tenant is not then in
default, and (ii) Tenant shall repair any damage to the improvements and
building of the Premises resulting from such removal.
12. LIABILITY INSURANCE.
a. Landlord shall procure and maintain throughout the Term of this
Lease a policy or policies of insurance, at its sole cost and expense, causing
the Building to be insured under standard fire and extended coverage insurance
and liability insurance (plus whatever endorsements or special coverages
Landlord, in its reasonable discretion, may consider appropriate), to the extent
necessary to comply with Landlord's obligations pursuant to other provisions of
this Lease. The limits of Landlord's liability policy shall be in an amount not
less than $1,000,000 per occurrence.
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b. Tenant shall procure and maintain throughout the Term of this Lease
a policy or policies of insurance, at its sole cost and expense, causing
Tenant's fixtures and contents to be insured under standard fire and extended
coverage insurance and, with regard to liability insurance, insuring both
Landlord and Tenant against all claims, demands or actions arising out of or in
connection with Tenant's use or occupancy of the Premises, or by the condition
of the Premises. The limits of Tenant's liability policy or policies shall be in
an amount not less than $1,000,000 per occurrence, and shall be written by
insurance companies reasonably satisfactory to Landlord.
13. DAMAGES BY CASUALTY.
a. If the Building or other improvements shall be damaged or destroyed
during the Term by fire or other casualty, Tenant shall have the right, but not
the obligation, to elect to cancel or terminate this Lease. Said right shall be
exercised in writing and delivered to Landlord within sixty (60) days after the
date of such occurrence as set forth in this Section. Upon such termination,
Landlord shall be entitled to all insurance proceeds covering the Premises (but
not covering Tenant's equipment, trade or business fixtures or personal
property, furnishings or furniture) resulting from such damage or destruction.
b. If the Building or other improvements shall be damaged or destroyed
during the Term by fire or other casualty, and Tenant elects not to terminate
the Lease, as permitted above, then promptly after adjustment of the insurance
claim, Landlord shall repair and restore the Building, Premises and improvements
to approximately the same condition as existed immediately prior to the date of
such damage or destruction. During the time of such repair and restoration, if
Tenant is unable to operate its business, there shall be an abatement of all
rental obligations hereunder. In the event the Premises are partially destroyed
or damaged by fire or other hazard so that the Premises can be only partially
used by Tenant for the purpose herein provided, then there shall be a partial
abatement in the Tenant's rental obligations corresponding to the time and
extent which the Premises cannot be used by Tenant. Tenant agrees that during
any period of reconstruction or repair of the Premises, it will continue the
operation of its business within the Premises to the extent practicable.
14. MECHANIC'S LIENS. Tenant agrees and covenants that it will not allow
any mechanic's liens, or other liens for any labor performed or materials
furnished which may cloud or impair title to the Premises, and that if any such
liens shall arise, within ten (10) days after request from Landlord, Tenant
shall either discharge and cancel the lien of record or post a bond (in
connection with which Tenant may contest any claims of any persons who have
provided or alleged to have provided, work to the Premises) in favor of
Landlord.
15. INDEMNITY.
a. Landlord shall not be liable for any damage or liability of any
kind, for any injury or death of persons, or damage to property of Tenant or any
other person occurring from and after the date of execution of this Lease, from
any cause whatsoever, by reason of the use or occupancy of the Premises by
Tenant or any person thereon or holding under Tenant, unless such damage is
caused by the negligent or willful act or omission of Landlord, its employees or
agents. Tenant shall indemnify and save Landlard harmless from all liability
whatsoever, on account of any such real or claimed damage or injury and from all
liens, claims and demands arising out of the use or occupancy of the Premises
and its facilities, or any repairs, alterations or improvements which
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Tenant may make to the Premises, unless such liability is caused by the
negligent or wilful act or omission of Landlord, its agents or employees.
b. Landlord shall and does hereby agree to indemnify Tenant and to hold
Tenant harmless of and from any and all claims, demands, costs and expenses
(including, but not limited to Tenant's reasonable attorneys' fees), damages and
causes of action of every nature whatsoever arising from or related to
Landlord's use or occupancy of the Building; or arising from any act, omission,
or negligence of Landlord, its agents, servants, employees, licensees or
invitees; or arising from any accident, injury or damage whatsoever caused to
any person or persons or property occurring in, on or about the Building or any
part thereof during the entire Term of this Lease, except where caused by the
negligence or wilful act or omission of Tenant, its agents, employees or
contractors.
16. WAIVER OF SUBROGATION. The parties release each other, and their
respective authorized representatives, from any claims for damage to any person
or property of either Landlord or Tenant in or on the Premises that are caused
by or result from risks insured against under any insurance policies carried by
the parties and in force at the time of any such damage. The parties further
agree neither party shall be liable to the other for any damage caused by fire
or any of the risks insured against under any insurance policy required by this
Lease, and each party shall cause each insurance policy obtained by it to
provide that the insurance company waives all right of recovery by way of
subrogation against either party in connection with any covered damage.
17. PROPERTY TAXES.
a. During the Term of this Lease, Landlord shall pay and discharge all
ad valorem, special assessments, and other taxes levied or asserted against the
Premises or any part thereof (collectively, "Property Taxes"). Property Taxes
shall not include Landlord's federal or state income, franchise, inheritance or
estate taxes. Tenant shall pay all taxes assessed against personal property of
Tenant located on the Premises.
b. Tenant shall pay all taxes and assessments, as specified herein, at
least thirty (30) days prior to the latest date upon which such taxes and
assessments may be paid prior to delinquency or other costs, expenses or charges
being added thereto.
18. BANKRUPTCY OR INSOLVENCY.
a. In the event of the filing or commencement of any proceeding by or
against Tenant under the Bankruptcy Code, the duly appointed Trustee, subject to
Court approval, shall have the right to assume this Lease if the Trustee shall
(i) cure any default or provide adequate assurance that the Trustee will
promptly cure such default; (ii) compensate or provide adequate assurance that
the Trustee will promptly compensate the Landlord for any actual loss resulting
from such default; and (iii) provide adequate assurance of future performance of
the covenants, agreements and obligations of Tenant under the terms of this
Lease.
b. The failure by the Trustee to assume or reject this Lease within
sixty (60) days after the order for relief (Chapter 7), or within sixty (60)
days of confirmation of a plan (Chapter 11), shall, at Landlord's option, be
deemed a rejection.
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19. DEFAULT.
a. The default on the part of Tenant shall exist under this Lease
when:
(1) Tenant fails to pay any monetary sum due hereunder, including
without limitation, Rent or any other charges as and when due, and such
failure continues for ten (10) days after written notice thereof by
Landlord to Tenant;
(2) Tenant fails to observe or perform any other provision, covenant
or condition of this Lease to be observed or performed by Tenant, and such
failure continues for thirty (30) days after written notice thereof by
Landlord to Tenant; provided if such default cannot reasonably be cured
within thirty (30) days, then Tenant shall have additional time to cure
such default as is reasonable and necessary; provided that Tenant
diligently, continuously and in good faith prosecutes the cure of such
default;
(3) A general assignment by Tenant of the benefit of creditors occurs
or the filing by or against Tenant of any proceeding under any insolvency
or bankruptcy law occurs, or the appointment of a trustee or receiver to
take possession of all or substantially all of Tenant's assets located upon
the Premises or of Tenant's interest in this Lease, unless such seizure is
discharged within sixty (60) days thereof for the purpose of effecting a
moratorium upon or composition of its debts occurs within sixty (60) days.
b. In the event of a default, Landlord may treat same as a breach of
this Lease, and, in addition to any or all other rights or remedies of
Landlord, and by the law provided and without being considered an election
of remedies, Landlord shall have the option without further notice or
demand: (i) to declare the Term hereof ended and to reenter the Premises
and take possession thereof and remove all persons therefrom, and Tenant
shall have no further claim thereon or hereunder; or (ii) without declaring
this Lease terminated, to reenter the Premises and occupy the whole or any
part thereof for and on account of Tenant and to collect any unpaid rentals
and any other charges which have become payable or which may thereafter
become payable; or (iii) even though Landlord may have reentered the
Premises, to thereafter elect to terminate this Lease and all of the rights
of Tenant in or to the Premises.
c. Landlord shall not be deemed to have terminated this Lease or the
liability of Tenant to pay any rental or other charges thereafter accruing,
or to have terminated Tenant's liability for damages under any of the
provisions hereof, by any such reentry or by any action in unlawful
detainee, or otherwise, to obtain possession of the Premises, unless
Landlord shall have notified Tenant in writing that Landlord has so elected
to terminate this Lease. The service by Landlord of any notice pursuant to
the unlawful detainer statutes of the state where the Premises are situated
and the surrender of possession pursuant to such notice shall not (unless
Landlord elects to the contrary at the time of or at any time subsequent to
the serving of such notices and such election is evidenced by a written
notice to Tenant) be deemed to be a termination of this Lease. In the
event of any entry or taking possession of the Premises as aforesaid,
Landlord shall have the right, but not the obligation, to remove therefrom
all or any part of the personal property located therein and may place the
same in storage at a public warehouse at the expense and risk of Tenant.
d. Should Landlord elect to terminate this Lease, Landlord may
recover from Tenant as damages: (i) the worth at the time of award of
judgment of the unpaid rent which had
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been earned at the time of termination; plus (ii) the worth at the time of award
of judgment of the amount by which the unpaid rent for the balance of the term
of the Lease exceeds the fair rental value of the Premises; plus (iii) any
reasonable costs or expenses incurred by Landlord in, (a) retaking possession of
the Premises, including reasonable attorney's fees therefor, (b) leasing
commissions, and (c) any other reasonable costs necessary or appropriate to
relet the Premises; plus (d) such other reasonable amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by the laws of the
state where the Premises are situated.
e. Efforts by the Landlord to mitigate the damages caused by the
Tenant's breach of the Lease do not waive the Landlord's right to recover
damages.
f. Even though Tenant has breached this Lease and abandoned the
Premises, this Lease shall remain in effect for so long as Landlord does
not terminate the Lease, and the Landlord may enforce all its rights and
remedies under this Lease, including the right to recover the Rent as it
becomes due under this Lease. The following do not constitute a
termination of Tenant's right to possession: (i) acts of maintenance or
preservation; (ii) efforts to relet the Premises; or (iii) the appointment
of a receiver on initiation by Landlord to protect its interest under this
Lease. Should Landlord relet the Premises on account of the Tenant, the
Landlord shall not be obligated to terminate this Lease, and in addition to
such other relief as may be allowed by law, Landlord may recover from
Tenant the past due Rent and unpaid Rent for the balance of the Term of the
Lease, less the amount of rent collected under the reletting of the
Premises, plus (iii) any reasonable costs or expenses incurred by Landlord
in, (a) retaking possession of the Premises, including reasonable attorneys
fees therefor, (b) leasing commissions, and (c) any other reasonable costs
necessary or appropriate to relet the Premises. Landlord shall have no
obligation or duty to Tenant to relet the Premises.
g. The rights of Landlord are not exclusive and shall be
cumulative to all other rights or remedies now or hereafter given to
Landlord by law or by the terms of this Lease. Nothing herein affects the
right of Landlord to equitable relief where such relief is appropriate. The
bringing of an action as described herein does not affect Landlord's right
to bring a separate action for relief on termination, or in equity but no
relief shall be requested and no damages shall be recovered in the
subsequent action for any detriment for which a claim for damages was made
and determined on the merits in the previous action.
20. CONDEMNATION.
a. If thirty percent (30%) or more of the rentable area of the
Premises shall be acquired or condemned by power of condemnation or eminent
domain, or be sold in lieu thereof, then Tenant, by written notice given within
sixty (60) days after notice of such taking or acquisition, may terminate this
Lease effective on the date that title vests in the condemning authority.
Tenant shall pay all Rent, additional rentals and all other charges and expenses
as shall be prorated and payable to the date of such termination, and Tenant
shall promptly vacate the Premises. Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease.
b. If all or any portion of the Premises shall be acquired by
authority of any governmental authority pursuant to the exercise of its power
of eminent domain or by deed in lieu thereof and the Lease is not terminated
then, commencing on the date of such acquisition, the Rent and all additional
rentals provided shall be reduced in the same proportion that the fair rental
value of the Premises immediately after such acquisition and any restoration
agreed to be performed by
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the parties hereto bears to the fair rental value of the Premises immediately
prior to such acquisition. In addition, if Tenant shall restore the remaining
portion of the Premises to as close to its previously existing condition as
possible, then Tenant shall first be entitled to recover its expenses incurred
in such restoration out of any such award and the balance shall be allocated to
Landlord, as aforesaid. If the parties are unable to agree on such fair rental
values within ninety (90) days after the date of such acquisition, the same
shall be determined by appraisal. Until the new Rent and additional rentals
shall have been determined, Tenant shall continue to pay Rent and additional
rentals at the rate in effect immediately prior to such acquisition, and upon
such determination, an appropriate adjustment shall be made.
c. If the parties do not agree upon any fair rental value, then
Landlord shall within ten (10) days provide Tenant with the name of three (3)
appraisers. Tenant shall within ten (10) days select one of the named
appraisers, who shall determine the fair rental value. All appraisers appointed
shall be licensed by the State of Oklahoma, shall be members of the Appraisal
Institute and shall be qualified by experience and ability to determine the
foregoing fair rental value, and the fees and other costs shall be shared
equally by both Landlord and Tenant.
21. ASSIGNMENT.
a. Tenant shall have the right to assign this Lease, or its rights
hereunder, or to sublet all or any part of the Premises to an affiliate of
Tenant without the prior written consent of the Landlord. In all other cases,
Tenant must obtain Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. In the event of an assignment or sublease,
Tenant shall remain primarily liable for any and all obligations under this
Lease. No assignment or sublease shall alter, affect or modify any of the
rights of Landlord under this Lease.
b. Tenant may mortgage, pledge or otherwise encumber its interest in
this Lease or in the Premises to any financial institution advancing
purchase-money financing for Tenant's operations on the Premises; provided,
however, that in the event of a foreclosure of the interest of such financial
institution, the Premises may be used only in the manner permitted by this
Lease.
22. NOTICES. Any and all notices or demands by or from Landlord to
Tenant, or Tenant to Landlord shall be in writing. They shall be served either
personally, via messenger or overnight carrier, or by certified mail. If served
personally, service shall be conclusively deemed made at the time of service.
If served by certified mail, service shall be conclusively deemed made
twenty-four (24) hours after deposit thereof in the United States mail, postage
prepaid.
Any notice or demand to Landlord may be given unto them at:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Living Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Any notice or demand to Tenant may be given unto it at:
Florafax International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
With copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Said addresses may be changed from time to time by notice given in
accordance with the provisions of this Section.
23. TERMINATION. On the last day of the Term of this Lease or sooner
termination as provided herein, Tenant shall peaceably and quietly leave the
Premises in good working order, condition and repair, damage by events or acts
beyond the reasonable control of Tenant and permitted alterations excepted.
The Premises shall be returned in a broom clean condition.
24. HOLDING OVER. Tenant shall not continue to conduct its business at
the Premises after the last day of the Term herein created. Any holding over
shall create no more than a month-to-month tenancy, subject to all of the terms
and conditions of this Lease provided herein.
25. HAZARDOUS SUBSTANCES.
a. Tenant shall not cause or permit to occur: (i) any violation of
any federal, state, or local law, ordinance, or regulation now or hereafter
enacted, related to environmental conditions on, under, or about the Premises;
or (ii) the use, generation, release, manufacture, refining, production,
processing, storage, or disposal of any hazardous substances on, under, or
about the Premises, other than used in Tenant's ordinary course of business.
b. Tenant shall comply with all laws regulating the use,
generation, storage, transportation, or disposal of hazardous substances.
c. If Tenant fails to fulfill any duty imposed under this
provision, then Landlord may take whatever actions are necessary to correct the
situation, and Tenant shall reimburse Landlord for all costs associated
therewith (including reasonable attorney's fees).
d. Tenant shall indemnify, defend, and hold harmless the Landlord
from all fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith arising out of or in any way connected with any
deposit, spill, discharge, or other release of hazardous substances that occurs
during the Term of this Lease.
e. Landlord shall indemnify, defend and hold harmless the Tenant
from all fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith arising out
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of or in any way connected with any deposit, spill, discharge or other release
of hazardous substances that occur before or after the Term of this Lease.
26. OPTION TO LEASE ADDITIONAL SPACE. So long as Tenant is not in default
(beyond any applicable cure period) under this Lease, during the Term, upon
sixty (60) days prior written notice from Tenant to Landlord, Tenant shall have
the right to lease the remaining office and warehouse space located in the
Building (being approximately 9,987 square feet in area). In the event Tenant
exercises this option, upon occupancy by Tenant of such additional space, the
parties shall execute a new lease for a term of five (5) years on the entire
Building. The new lease shall have the same terms and conditions of this Lease
except that (i)Tenant shall pay one hundred percent (100%) of all utilities and
other costs specified in Section 9 above and (ii) each Lease Year, Tenant shall
pay to Landlord any increase in Property Taxes from the preceding Lease Year.
Further, in the event Tenant exercises this option as provided herein, Landlord
agrees to improve the additional space in the same manner as set forth on
EXHIBIT "B" (except that Landlord will be required to surface and strip
_________ (__) square feet of land surrounding the Building for vehicular
parking), or as otherwise agreed by Landlord and Tenant. Landlord will have six
(6) months after Tenant's exercise of the option to complete such work.
Landlord agrees that upon Tenant's occupancy of the additional space, the
conditions of such space will comply with all applicable laws and ordinances
applicable to the additional space.
27. LEASING COMMISSION. Landlord and Tenant each represent and warrant
to the other that there are no claims for broker's commissions or finder's fees
in connection with the execution and delivery of this Lease, and Landlord and
Tenant each agree to indemnify the other against and hold such party harmless
from all liabilities arising from a breach of the representation and warranty
made by such party herein, including, without limitation, reasonable attorney's
fees and related court costs.
28. MISCELLANEOUS PROVISIONS.
a. Nothing contained in this Lease shall be deemed or construed
by the parties hereto, or any third party, to create the relationship of
principal and agent, or of partnership or of joint venture, or of trustee and
beneficiary, or of any other association between the parties hereto, and
neither the method of payment of any monies hereunder, nor any other
provisions in this Lease, nor any acts of the parties hereto, shall be deemed
to create any relationship set forth hereinabove.
b. No waiver of default by the party or parties hereunder shall be
implied from any omission by party or parties to take action on account of
such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the express
waiver, and that only for the time and to the extent therein stated. One or
more waivers of any covenant, term or condition of this lease by a party or
parties shall not be deemed to waive or render unnecessary the consent to or
approval of said party or parties of any subsequent or similar acts by a party
or parties.
c. This Lease may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but such
counterparts together shall constitute but one Lease.
d. This Lease shall be construed according to the laws of the State
in which the Premises are located.
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e. Time is of the essence of this Lease.
f. Should any portion of this Lease be declared invalid and
unenforceable, then such portion shall be deemed to be severable from this
Lease and shall not affect the remainder thereof.
g. It is expressly understood that this Lease contains all terms,
covenants, conditions and agreements between the parties hereto relating to the
subject matter of this Lease, and that no prior agreements or understandings,
either oral or written, pertaining to the same, shall be valid or of any force
or effect, and that the terms, covenants, conditions and provisions of this
Lease cannot be altered, changed, modified or added to except in writing by all
the parties hereto.
h. Should any party or parties hereto institute any action or
proceeding in Court or by arbitration to enforce any provision or provisions
hereof, or for damages by reason of any default under this Lease, or for a
declaration of such party's or parties' rights or obligations hereunder, or for
any other judicial remedies, the prevailing party or parties shall be entitled
to receive from the losing party or parties such amount as the Court may find to
be reasonable and actual attorney's fees and costs incurred for the services
rendered the party or parties prevailing in any such action or proceeding or on
appeal therefrom.
i. This Lease shall be binding upon and inure to the benefit of the
personal and legal representatives, successors and assigns of the parties.
j. The time for the completion of any alterations, repairs or
improvements shall be deemed extended by time lost due to delays resulting from
acts of God, strikes, unavailability of materials, civil riots, floods, other
unusually inclement weather (but not including seasonally inclement weather),
national or labor restrictions by governmental authority, and any other cause
not within the control of such party.
k. Tenant accepts this Lease subject and subordinate to any
mortgage, deed of trust or other lien presently existing upon the Premises and
to any renewals and extensions thereof; provided that Tenant and holder of said
mortgage, deed of trust or other lien now or hereafter existing shall have
executed and delivered a non-disturbance agreement reasonably acceptable to said
lienholder and Tenant. Tenant further agrees that any such mortgagee shall have
the right at any time to subordinate such mortgage, deed of trust or other lien
to this Lease. Landlord is hereby irrevocably vested with full power and
authority to, upon execution of a non-disturbance agreement as set forth above,
subordinate this Lease to any mortgage, deed of trust or other lien hereafter
placed upon the Premises, and Tenant agrees upon demand to execute such further
instruments subordinating the Lease upon the express condition that this Lease
shall be recognized by the mortgagee by the execution of a non-disturbance
agreement acceptable to Tenant and mortgagee, and that the rights of Tenant
shall remain in full force and effect during the term of this Lease so long as
Tenant shall continue to perform all of the covenants and conditions of this
Lease.
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The parties hereto have executed this Lease as of the dates set forth below.
LANDLORD:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LIVING TRUST, dated May 31, 1997
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
_______________________, Trustee
Date: May 31, 1997
TENANT:
FLORAFAX INTERNATIONAL, INC.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President
Date: May 27, 1997
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EXHIBIT "A"
The area considered consists of approximately 10,013 square feet of contiguous
area, consisting of 4,417 square feet of office space, 1,400 square feet of
process space, 2,728 square feet of warehouse space and 1,468 square feet of
auxiliary space.
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EXHIBIT "B"
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[Description of Landlord's Work]
Landlord shall provide the following to Tenant at Landlord's sole expense
("Landlord's Work"):
1. replacement of existing carpet located in the Premises with
________________.
2. replacement of existing linoleum located in the Premises with
________________.
3. painting of all interior surfaces located in the Premises with
________________.
4. surfacing and striping of adequate space to park at least 100 cars.
5. installation of outdoor lighting in parking area, to Tenant's
satisfaction.
6. installation of a security system, to Tenant's satisfaction.
(existing security system already installed)