COMMERCIAL LEASE AGREEMENT
THIS
LEASE AGREEMENT (“Lease”) is made and entered into this 18th day of
March, 2005 by and between Ethos Business Venture, L.L.C., a Florida
limited liability corporation (hereinafter referred to as "Landlord"), and Dais
Analytic Corporation, whose address is 00000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Tenant"). Landlord and Tenant are referred to
herein individually as “Party” and collectively as the “Parties”.
ARTICLE I
- GRANT OF LEASE
1.1
Landlord, in consideration of the rents to be paid and the covenants and
agreements to be performed and observed by the Tenant, does hereby lease to the
Tenant and the Tenant does hereby lease and take from the Landlord the property
described in Exhibit "A" attached hereto and by reference made a part
hereof (the "Leased Premises"), together with, as part of the parcel, all
improvements located thereon.
ARTICLE
II - LEASE TERM
2.1 Term
of Lease. The term of this Lease shall begin on the Commencement Date
as defined in Section 2.2 and shall terminate on the Termination Date as defined
in Section 2.3 (“Initial Term”).
2.2
Commencement Date. The "Commencement Date" shall mean the date upon which this
Lease is fully executed by all the Parties.
2.3
Termination Date. The “Termination Date” shall mean that date which follows the
Commencement Date by eight calendar months (i.e. if the Commencement Date is
March 10th the
Termination Date will be November 9th of the
same year).
ARTICLE
III - EXTENSIONS
3.1 The
Parties hereto may elect to extend this Lease upon such terms and conditions as
may be agreed upon in writing and signed by the Parties at the time of any such
extension.
ARTICLE
IV - DETERMINATION OF RENT
4.1 The
Tenant agrees to pay to the Landlord and the Landlord agrees to accept, during
the Initial Term, at such place as the Landlord shall from time to time direct
by notice to the Tenant, rent at the following rates and times:
(a)
Rent for Initial Term. The rent for the Initial Term of this lease shall be
Twenty Nine Thousand Two Hundred Dollars ($29,200.00) (“Initial Rent”), plus
applicable sales tax.
(b) Payment of Rent. The Initial Rent shall be payable in
advance in eight monthly installments and shall be due on the eighteenth
(18th) day of
each and every calendar month during the Initial Term, and prorated on a daily
basis for the fractional portion of any such month. Each monthly installment due
for the first three months of the Initial Term shall be Two Thousand Six Hundred
Dollars ($2,600.00) plus applicable sales tax. Each of the remaining six monthly
installments shall be Four Thousand Two Hundred Dollars ($4,200.00)plus
applicable sales tax.
Commercial
Lease page 1 of 17
(c) A late fee may be assessed by Landlord on any payment of the aforementioned
rent not postmarked or received by Landlord on or before the due date of such
payment. Said late fee shall be Twenty Five Dollars ($25.00) per day for each
day payment is late.
ARTICLE V
- SECURITY DEPOSIT
5.1 The
Tenant has initially deposited with the Landlord the sum of Five Thousand
Dollars ($5,000.00) as security for the full and faithful performance by the
Tenant of all the terms of this lease required to be performed by the Tenant
(“Initial Deposit”). Such sum shall be returned to the Tenant after the
expiration of this lease, provided the Tenant has fully and faithfully carried
out all of its terms. In the event of a bona fide sale of the property of which
the Leased Premises are a part, the Landlord shall have the right to transfer
the security to the purchaser to be held under the terms of this lease, and the
Landlord shall be released from all liability for the return of such security to
the Tenant. In addition to the Initial Deposit, Tenant shall provide to
Landlord, upon the first day of the fourth month of this Lease, an
additional sum of Three Thousand Hundred Dollars ($3000.00) which shall increase
the Initial Deposit and shall be subject to the same terms and conditions as
apply to the Initial Deposit.
ARTICLE
VI – TAXES AND ASSESSMENTS
6.1
Personal Property Taxes. The Tenant shall be solely liable for all
taxes levied against any leasehold interest of the Tenant or personal property
and trade fixtures owned or placed by the Tenant in the Leased
Premises.
6.2 Real
Estate Taxes and Assessments. Tenant shall be solely responsible for paying in a
timely manner all real estate taxes and assessments due or accruing with respect
to the Lease Premises during the Initial Term of the Lease and any extension
thereof. Payment relating to such taxes shall be payable in advance monthly to
Landlord on the first day of each month of the Initial Term and prorated for
each partial month thereof. Landlord shall hold such payment in escrow for
Tenant paying the taxes on behalf of Tenant from such sums when due. In the
event a payment hereunder is due and the final real property taxes and
assessments (“Tax Xxxx”) have not yet been determined by the taxing authority
for the period relating thereto the Parties agree to compute said monthly tax
payment upon the last Tax Xxxx received by Landlord for the Leased Premise. Upon
the receipt of the final Tax Xxxx relating to said payment the Landlord shall
recalculate the taxes owed by Tenant for the period and if there are additional
taxes and/or assessments due Landlord shall notify Tenant in writing of the
amount due whereupon Tenant shall have fifteen (15) days after said notice to
remit payment in full to Landlord. Likewise, if such recalculation shows an
overpayment of such taxes and/or assessments by Tenant, Landlord shall refund
any overpayment to Tenant within fifteen (15) days of Landlord’s receipt of said
Tax Xxxx. Payments due thereafter shall be based upon the most recent Tax Xxxx
received by Landlord with relation to the Leased Premises and re-computed
employing the same process as described above. In the event of an extension of
this Lease the payments due hereunder shall be payable in the same manner as
described above. Landlord, upon Tenant’s request, shall deliver to Tenant a copy
of such Tax Xxxx or assessments made against the Leased Premises. In addition to
the foregoing payments, Tenant shall pay to Landlord any interest and penalties
lawfully imposed by the taxing authority as a result of Tenant's late payment of
the forgoing obligation and a late fee to Landlord equal to Ten Dollars ($10.00)
per day for each day any such payment is received by Landlord after the due date
thereof. The above payments are considered a reimbursement to Landlord. If it is
determined such payments are subject to Florida Sales and Use Tax, Tenant shall
also pay to Landlord the appropriate sales tax on each such
payment.
Commercial
Lease page 2 of 17
6.3
Contest of Taxes. Tenant may, at its own cost and expense, contest by
appropriate proceedings the amount of any personal and, with the prior written
approval of Landlord, real property tax on the Property. The Tenant may, with
prior written approval of Landlord, endeavor at any time or times, by
appropriate proceedings, to obtain a reduction in the assessed valuation of the
Leased Premises for tax purposes.
6.4
Changes in Method of Taxation. Landlord and Tenant further
agree
that if at any time during the term of this Lease, the present method of
taxation or assessment of real estate shall be changed so that the whole or any
part of the real estate taxes, assessment or governmental impositions now
levied, assessed or imposed on the Leased Premises shall, in lieu thereof, be
assessed, levied, or imposed wholly or in part, as a capital levy or otherwise
upon the rents reserved herein or any part thereof, or as a tax, corporation
franchise tax, assessment, levy or charge, or any part thereof, measured by or
based, in whole or in part, upon the Leased Premises or on the rents derived
therefrom and imposed upon the Landlord, Tenant shall timely pay,
in advance and monthly if practical, all such taxes, assessments, levies,
impositions, or charges. Nothing contained in this Lease shall
require the Tenant to pay an estate, inheritance, succession, capital levy,
corporate franchise, gross receipts, transfer or income tax of the Landlord, nor
shall any of the same be deemed real estate taxes unless the same be imposed in
lieu of the real estate taxes.
6.5 Solid
Waste Disposal Assessment. Tenant shall be solely responsible for paying in a
timely manner all solid waste disposal assessments made by the local taxing
authority with relation to the Lease Premises during the Initial Term of the
Lease and any extension thereof. Payment relating to such taxes shall be payable
in advance monthly based upon and calculated in the same manner as real property
taxes are calculated under Section 6.1.
ARTICLE
VII – UTILITIES AND LIENS
7.1.
LIENS. The Tenant shall keep the property free and clear of all liens and,
should the Tenant fail to do so, or to have any liens removed from the property
within fourteen (14) days of notification to do so by the Landlord, in addition
to all other remedies available to the Landlord, the Tenant shall defend,
indemnify and hold the Landlord harmless for all costs and expenses, including
reasonable attorney's fees, occasioned by the Landlord in having said lien
removed from the property; and, such costs and expenses shall be billed to the
Tenant and shall be payable by the Tenant with that month's regular monthly
rental as
additional expenses reimbursable to the Landlord by the
Tenant.
Commercial
Lease page 3 of 17
7.2.
Utilities. Tenant shall timely pay for all water, sanitation, sewer,
electricity, light, heat, gas, power, fuel, janitorial, and other services
incident to Tenant's use of the Leased Premises, whether or not the cost thereof
be a charge or imposition against the Leased Premises.
ARTICLE
VIII - OBLIGATIONS FOR REPAIRS
8.1
Landlord’s Repairs. Subject to any provision of this Article to the
contrary, and except for maintenance or replacement necessitated as the result
of gross negligence on the part of the Landlord or Landlord’s agents, the
Landlord shall be required to repair only structural defects in the building and
perform major roof repairs. For the purpose of this section only the term “major
roof repairs” is defined as a roof repair which exceeds $5000.00 in
cost.
8.2
Tenant’s Repairs. The Tenant shall promptly make all repairs and
maintain the Leased Premises and all improvements and fixtures thereon in good
order and condition, except for maintenance related to reasonable wear and tear,
repairs required of Landlord pursuant to Section 8.1, and maintenance or
replacement necessitated as the result gross negligence on the part of Landlord
or Landlord’s agents.
8.3
Requirements of the Law. The Tenant agrees that if any federal, state
or municipal government or any department or division thereof shall condemn the
Leased Premises or any part thereof as not in conformity with the laws and
regulations relating to the construction thereof
with respect to conditions latent or otherwise which existed on the Commencement
Date, or, with respect to items which are the Landlord's duty to repair pursuant
to Section 8.1; and such federal, state or municipal government or any other
department or division thereof, has ordered or required, or shall hereafter
order or require, any alterations or repairs thereof necessary to comply with
such laws, orders or requirements (the validity of which the Landlord shall be
entitled to contest); and if by reason of such laws, orders or the work done by
the Landlord in connection therewith, the Tenant is deprived of the use of the
Leased Premises, the rent shall be abated or adjusted, as the case may be, in
proportion to that time during which, and to that portion of the Leased Premises
of which, the Tenant shall be deprived as a result thereof, and the Landlord
shall be obligated to make such repairs, alterations or modifications at
Landlord's expense.
If,
however, such condemnation, law, order or requirement, as set forth herein,
shall be with respect to an item which shall be the Tenant's obligation to
repair pursuant to Section 8.2 or any other provision contained herein, no
abatement or adjustment of rent shall be granted; provided, however, that Tenant
shall be entitled to contest the validity thereof.
8.4
Tenant’s Alterations. The Tenant shall have the right, upon securing
prior written approval from the Landlord, at Tenant’s sole expense, from time to
time, to redecorate the Leased Premises and to make non-structural alterations
and changes in such parts thereof; provided, however, that such alterations and
changes shall neither impair
the structural soundness nor diminish the value of the Leased Premises. The
Landlord shall execute and deliver upon the request of the Tenant such
instrument or instruments embodying the approval of the Landlord which may be
required by the public or quasi public authority for the purpose of obtaining
any licenses or permits for the making of such alterations, changes and/or
installations in, to or upon the Leased Premises and the Tenant agrees to pay
for such licenses or permits.
Commercial
Lease page 4 of 17
8.5
Permits and Expenses. Each Party agrees that it will procure all
necessary permits for making any repairs, alterations, or other improvements for
installations, when applicable. Tenant shall promptly give written notice to
Landlord of any repairs required of the other pursuant to the provisions of this
Article. Both Parties agree to promptly commence any repairs for which it is
responsible under this Lease and to prosecute the same to completion diligently,
subject, however, to the reasonably delays occasioned by events beyond the
control of such Party. Each Party agrees to pay promptly when due the entire
cost of any work done by it upon the Leased Premises so that the Leased Premises
at all times shall be free of liens for labor and materials. Each
Party further agrees to defend, indemnify and hold harmless the other Party from
and against any and all injury, loss, claims, damage or expenses (including
reasonable attorney’s fees) to any person or property occasioned by or arising
out of the willful misconduct or negligent acts or omissions of such Party, its
agents, employees or contractors with relation to any alteration, improvement,
repair or work of any nature made to the Leased Premises. Each Party further
agrees that in doing such work that it will employ materials of good quality and
comply with all governmental requirements, and perform such work in a good and
workmanlike manner.
ARTICLE
IX - TENANT'S COVENANTS
9.1.
Tenant’s Covenants. Tenant covenants and agrees as
follows:
(a)
To procure any licenses and permits required for any use made of the Leased
Premises by Tenant, and upon the expiration or termination of this Lease, to
remove its goods and effects and those of all persons claiming under it, and to
yield up peaceably to Landlord the Leased Premises broom clean, in good order,
repair and condition in all respects; excepting only structural repairs due to
defects in the building, major roof repairs and reasonable wear and
tear;
(b)
To permit Landlord and its agents to examine the Leased Premises at reasonable
times and to show the Leased Premises to prospective purchasers of the Building
with one (1) day prior notice and to provide Landlord, if not already available,
with a set of keys for such purposes, provided that Landlord shall not thereby
unreasonably interfere with the conduct of Tenant's business;
(c)
To permit Landlord to enter the Leased Premises to inspect such repairs,
improvements, alterations or additions thereto. If, under Article 8 Landlord is
required to make a repair, alteration or improvement to the Leased Premises and
as a result of any such repair, alteration or improvement Tenant is deprived of
the use of the Leased Premises, the rent shall be abated or adjusted, as the
case may be, in proportion
to that time during which, and to that portion of the Leased Premises of which,
Tenant shall be deprived as a result thereof.
Commercial
Lease page 5 of 17
ARTICLE X
- INDEMNITY BY TENANT
10.l
Indemnity and Public Liability. The Tenant shall defend, hold
harmless and indemnify Landlord, and if applicable its officers, managers,
employees and agents (collectively, the “Indemnities”) from and against any
claim, suit, demand, loss, liability, expense (including reasonable attorney’s
fees), or damage of any nature (“Losses”) incurred by Indemnities which arises
from or is related to (a) any person or property being on or about the Leased
Premises; (b) Tenant’s possession or use of the Leased Premises; or (c) Tenant’s
obligations under this Lease. The foregoing indemnity shall not apply in the
event and to the extent a court of competent jurisdiction determines that such
Losses arose as a result of the willful misconduct or gross negligence of the
Indemnities. Tenant shall maintain, with respect to the Leased Premises and at
Tenant’s expense, comprehensive general liability insurance with limits of not
less than one million dollars ($1,000,000.00) combined single limit coverage of
bodily injury, property damage or combination thereof. Further, Tenant shall
maintain, at its expense, fire and extended coverage insurance (which shall
include coverage relating to loss incurred as a result of wind or hurricane) on
the Building and Leased Premises in the amount of at least Three Hundred and
Fifty Thousand Dollars ($350,000.00). Each of the foregoing policies shall
insure both Landlord and Tenant and shall be secured only from an insurance
company reasonably acceptable to the Landlord. Landlord shall be listed as an
additional insured on all such policies. A copy of the policy or a certificate
of insurance shall be delivered to Landlord on or before the commencement date
and no such policy shall be cancelable without at least ten (10) days prior
written notice to Landlord. In addition, Tenant shall be responsible, at its
expense for fire and extended coverage insurance on all its personal property,
including removable trade fixtures, located in the Leased Premises.
ARTICLE
XI - USE OF PROPERTY BY TENANT
11.1
Use. The Leased Premises may be occupied and used by Tenant
exclusively as office, research and manufacturing space for HVAC products.
Nothing herein shall give Tenant the right to use the property for any other
purpose or to sublease, assign, or license the use of the property to any other
party. Notwithstanding any provision herein to the contrary, Tenant shall not
use the Leased Premises for purposes of storing, manufacturing or selling any
explosives or flammables.
ARTICLE
XII - SIGNAGE
12.1
Exterior Signs. Upon securing Landlord’s prior written approval, Tenant shall
have the right, at its sole risk and expense and in conformity with applicable
laws and ordinances, to erect and thereafter, to repair or replace, if it shall
so elect signs on any portion of the Leased Premises, providing that Tenant
shall remove any such signs upon termination of this lease, and repair all
damage occasioned thereby to the Leased Premises.
Commercial
Lease page 6 of 17
12.2
Interior Signs. Upon securing Landlord’s prior written approval Tenant shall
have the right, at its sole risk and expense and in conformity with applicable
laws and ordinances, to erect, maintain, place and install its usual and
customary signs and fixtures in the interior of the Leased
Premises.
ARTICLE
XIII - INSURANCE
13.1.
Insurance Proceeds. In the event of any damage to or destruction of
the Leased Premises, Tenant shall adjust the loss and settle, subject to
Landlord’s written approval, all claims with the insurance companies issuing
such policies. The Tenant does hereby irrevocably assign the proceeds from such
insurance policies to Landlord or, if the Landlord shall so direct in writing,
to the institutional first mortgagee then holding an interest in the Leased
Premises.
Any
insurance proceeds in excess of the proceeds necessary for the repair,
restoration, rebuilding, replacement or any combination thereof of the Leased
Premises shall be the sole property of Landlord subject to any rights therein of
Landlord's mortgagee, and if the proceeds necessary for such repair,
restoration, rebuilding or replacement, or any combination thereof shall be
inadequate to pay the cost thereof, Tenant shall pay the
deficiency.
13.2
Subrogation. Landlord and Tenant hereby release each other, to
the
extent of the insurance coverage provided hereunder, from any and all liability
or responsibility (to the other or anyone claiming through or under the other by
way of subrogation or otherwise) for any loss to or damage of property covered
by the fire and extended coverage insurance policies or any other such policy
insuring the Leased Premises and any of Tenant's property, even if such loss or
damage shall have been caused by the fault or negligence of the other
Party.
13.3
Contribution. Tenant shall reimburse Landlord for all insurance premiums
connected with or applicable to the Leased Premises for whatever insurance
policy the Landlord, at its sole and exclusive option, should
select.
ARTICLE
XIV - DAMAGE TO DEMISED PREMISES
14.1
Abatement or Adjustment of Rent. If the whole or any part of
the
Leased Premises shall be damaged or destroyed by fire or other casualty after
the execution of this Lease and before the termination hereof and such damage is
not a result of the willful misconduct or negligence on the part of Tenant or
Tenant’s agents, employees or invitees, then the rent required under Article IV
and all other payments required herein, if any, shall be abated or adjusted, as
the case may be, in proportion to that portion of the Leased Premises of which
Tenant shall be deprived on account of such damage or destruction and the work
of repair, restoration, rebuilding, or replacement or any combination thereof,
of the improvements so damaged or destroyed, shall in no way be construed by any
person to effect any reduction of sums or proceeds payable under any rent
insurance policy. If such damage is a result of willful misconduct or negligence
on the part of Tenant or Tenant’s agents, employees or invitees then the rent
and all other payments and charges shall not be abated or diminished while such
damages
are repaired and the Tenant shall be responsible for the costs of repair not
covered by insurance.
Commercial
Lease page 7 of 17
14.2
Repairs and Restoration. Landlord agrees that in the event of damage
or destruction to the Leased Premises, Landlord shall proceed to repair,
restore, replace or rebuild the Leased Premises (excluding Tenant's leasehold
improvements), to substantially the condition in which the same were immediately
prior to such damage or destruction. The Landlord shall diligently prosecute
said work to completion without delay or interruption except for events beyond
the reasonable control of Landlord. Notwithstanding the foregoing, if Landlord
does not either obtain a building permit within ninety (90) days of the date of
such damage or destruction, or substantially complete such repairs,
rebuilding or restoration within two (2) months of such damage or destruction,
then Tenant may at any time thereafter cancel and terminate this Lease by
sending thirty (30) days written notice thereof to Landlord. Notwithstanding the
foregoing, if such damage or destruction shall amount to fifty (50%) percent or
more of the replacement cost of the Leased Premises, exclusive of the land and
foundations, this Lease may be terminated at the election of either Landlord or
Tenant (except this option shall not be available to Tenant if the destruction
or damage is a result of a result of the willful misconduct or negligence on the
part of Tenant or Tenant’s agents, employees or invitee) provided that notice of
such election shall be sent by the Party so electing to the other within thirty
(30) days after the occurrence of such damage or destruction. Upon termination,
as aforesaid, by either Party hereto, this Lease and the term thereof shall
cease and come to an end, any unearned rent or other charges paid in
advance by Tenant shall be refunded to Tenant, any payments due to the Landlord
by tenant shall be immediately made and this Lease shall terminate.
ARTICLE
XV - CONDEMNATION
15.1
Total Taking. If, after the execution of this Lease and prior
to the
expiration of the Initial Term, or, in the event of an extension of the Lease,
the expiration of said extension, the whole of the Leased Premises shall be
taken under power of eminent domain by any public or private authority, or
conveyed by Landlord to said authority in lieu of such taking, then this Lease
and the term hereof shall cease and terminate as of the date when possession of
the Leased Premises shall be taken by the taking authority and any unearned rent
or other charges, if any, paid in advance, shall be refunded to
Tenant.
15.2
Partial Taking. If, after the execution of this Lease and prior to
the expiration of the Initial Term, or, in the event of an extension of the
Lease, the expiration of said extension any public or private authority shall,
under the power of eminent domain, take, or Landlord shall convey to said
authority in lieu of such taking, property which results in a reduction by
twenty- five (25%) percent or more of the area in the Leased Premises, or
of a portion of the Leased Premises that substantially interrupts or
substantially obstructs the conducting of business on the Leased Premises; then
Tenant may, at its election, terminate this Lease by giving Landlord notice of
the exercise of Tenant's election within thirty (30) days after Tenant shall
receive notice of such taking. In the event of termination by Tenant under the
provisions of Section 15.2, this Lease and the term hereof shall cease and
terminate as of the date when possession shall be taken by the appropriate
authority of that portion of the Leased Premises that results in one of the
above takings, and any unearned rent or other charges, if any, paid in advance
by Tenant shall be refunded to Tenant.
Commercial
Lease page 8 of 17
15.3
Restoration. In the event of a taking in respect of which
Tenant
shall not have the right to elect to terminate this Lease or, having such right,
shall not elect to terminate this Lease, this Lease and the term thereof shall
continue in full force and effect and the rent and any other charges shall, upon
the taking, shall be reduced in proportion to the square footage of the Leased
Premises remaining thereafter.
15.4 The
Award. All compensation awarded for any taking, whether for the whole
or a portion of the Leased Premises, shall be the sole property of the Landlord
whether such compensation shall be awarded for diminution
in the value of, or loss of, the leasehold or for diminution in the value of, or
loss of, the fee in the Leased Premises, or otherwise. The Tenant hereby assigns
to Landlord all of Tenant's right and title to and interest in any and all such
compensation. However, the Landlord shall not be entitled to and Tenant shall
have the sole right to make its independent claim for and retain any portion of
any award made by the appropriating authority directly to Tenant for loss of
business, or damage to or depreciation of, and cost of removal of fixtures,
personalty and improvements installed in the Leased Premises by, or at the
expense of Tenant, and to any other award made by the appropriating authority
directly to Tenant.
15.5
Release. In the event of any termination of this Lease as the result
of the provisions of this Article XV, the Parties, effective as of such
termination, shall be released, each to the other, from all liability and
obligations thereafter arising under this lease.
ARTICLE
XVI - DEFAULT
16.1
Landlord’s Remedies. In the event that:
(a) Tenant shall on three or more occasions be in default in the
payment of rent or other payment or charges herein required to be paid by Tenant
(default herein being defined as payment received by Landlord ten or more days
subsequent to the due date), regardless of whether or not such default has
occurred on consecutive or non-consecutive months; or
(b) Tenant has caused a lien to be filed against the Landlord's
property and said lien is not removed within thirty (30) days of recordation
thereof; or
(c) Tenant shall default in making any payment to Landlord
required by this Lease, including but not limited to payments relating to rent
and real property taxes and assessments and such default continues for a period
of fifteen (15) days after any such payment was due; or
(d) Tenant shall default in the other observance or performance
of any other obligations, covenants and agreements required to be performed and
observed by Tenant hereunder for a period of thirty (30) days
after notice to Tenant in writing of such default (or if such default shall
reasonably take more than thirty (30) days to cure, Tenant shall not have
commenced the same within the thirty (30) days and diligently prosecuted the
same to completion); or
Commercial
Lease page 9 of 17
(e) Sixty
(60) days have elapsed after the commencement of any proceeding by or against
Tenant, whether by the filing of a petition or otherwise, seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or future Federal Bankruptcy Act or any
other present or future applicable federal, state or other statute or law,
whereby such proceeding shall not have been dismissed;
Landlord
shall be entitled to its election (unless Tenant shall cure such default prior
to such election), to exercise concurrently or successively, any one or more of
the following rights:
(i)
Terminate this Lease by giving Tenant notice of termination, in which event this
Lease shall expire and terminate on the date specified in such notice of
termination, with the same force and effect as though the date so specified were
the date herein originally fixed as the termination date of the term of this
Lease, all rights of Tenant under this Lease and in and to the Premises shall
expire and terminate, Tenant shall remain liable for all obligations under this
Lease arising up to the date of such termination, and Tenant shall surrender the
Premises to Landlord on the date specified in such notice; or
(ii) Without
terminating this Lease, and with or without notice to Tenant, Landlord may in
its own name but as agent for Tenant enter into and upon and take possession of
the Premises or any part thereof, and, at Landlord's option, remove persons and
property therefrom, and such property, if any, may be removed and sold or
removed and stored in a warehouse or elsewhere at the cost of, and for the
account of Tenant, all without being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby, and Landlord may
rent the Premises or any portion thereof as the agent of Tenant with or without
advertisement, and by private negotiations and for any term upon such terms and
conditions as Landlord may deem necessary in order to relet the Premises.
Landlord shall in no way be responsible or liable for any rental concessions or
any failure to rent the Premises or any part thereof, or for any failure to
collect any rent due upon such reletting. Upon such reletting, all rentals
received by Landlord from such reletting shall be applied: first, to the payment
of any indebtedness (other than any rent due hereunder) from Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting, including,
without limitation, brokerage fees and attorney's fees and costs of alterations
and repairs; third, to the payment of rent and other charges then due and unpaid
hereunder; and the residue, if any shall be held by Landlord to the extent of
and for application in payment of future rent as the same may become due and
payable hereunder. In reletting the Premises as aforesaid, Landlord may grant
rent concessions and Tenant shall not be credited therefor. If such rentals
received from such reletting shall at any time or from time to time be less than
sufficient to pay to Landlord the entire sums then due from Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall, at
Landlord's option, be calculated and paid
monthly. No such reletting shall be construed as an election by Landlord to
terminate this Lease unless a written notice of such election has been given to
Tenant by Landlord. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for any such previous default provided same has not been
cured; or
Commercial
Lease page 10 of 17
(iii) Allow
the Premises to remain unoccupied and collect rent from Tenant as it comes due;
or
(iv) Foreclose
the security interest described herein; or
(v)
Pursue such other remedies as are available at law or equity.
(e) Landlord's
pursuit of any remedy of remedies, including without limitation, any one or more
of the remedies stated herein shall not (1) constitute an election of remedies
or preclude pursuit of any other remedy or remedies provided in this Lease or
any other remedy or remedies provided by law or in equity, separately or
concurrently or in any combination, or (2) serve as the basis for any claim of
constructive eviction, or allow Tenant to withhold any payments under this
Lease.
16.2
Landlord’s Self Help. If Tenant fails in any manner to perform or
observe any of conditions, agreements of obligations of this Lease
and Tenant does not cure such default within thirty (30) days after notice from
Landlord specifying the default (or if such default shall reasonably take more
than thirty (30) days to cure, shall diligently prosecuted the same to
completion), Landlord may, at its option, without waiving any claim for damages
for breach of agreement, at any time thereafter cure such default for the
account of Tenant, and any amount paid or contractual liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant
and Tenant agrees to reimburse Landlord therefor and save Landlord harmless
therefrom. Provided, however, that Landlord may, but is not obligated to, cure
any such default as aforesaid prior to the expiration of said waiting period,
without notice to Tenant if any emergency situation exists, or after notice to
Tenant, if the curing of such default prior to the expiration of said waiting
period is reasonably necessary to protect the Leased Premises or Landlord's
interest therein, or to prevent injury or damage to persons or property. If
Tenant shall fail to reimburse Landlord upon demand for any amount paid for the
account of Tenant hereunder, said amount shall be added to and become due as a
part of the next payment of rent due and shall for all purposes be deemed and
treated as rent hereunder.
16.3
Tenant’s Remedies. If there is a default by Landlord with respect to any of its
covenants, warranties or representations under this Lease, and if the default
continues more than thirty (30) days after notice in writing from Tenant to
Landlord specifying the default (or if such default shall reasonably take more
than thirty (30) days to cure, Tenant shall not have commenced the same within
the thirty (30) days and diligently prosecuted the same to completion), Tenant
may, at its option, cure such default and deduct the cost thereof from the next
accruing installment or installments of rent payable hereunder until Tenant
shall have been fully reimbursed for such expenditures. If this Lease
terminates prior to Tenant's receiving full reimbursement thereof Landlord shall
pay the unreimbursed balance to Tenant on demand.
Commercial
Lease page 11 of 17
ARTICLE
XVII - TITLE
17.l Subordination. Tenant
accepts this Lease subject and subordinate to any mortgage, deed of trust or
other lien presently existing or hereafter arising on the Leased Premises or
upon the building located thereon and to any renewals, refinancings and
extensions thereof, but Tenant 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 on such terms and subject to such conditions as such mortgagee may
deem appropriate in its discretion. Landlord is hereby irrevocably vested with
full power and authority to subordinate this Lease to any mortgage, deed of
trust or other lien now existing or hereafter placed upon the Leased Premises,
and Tenant agrees, upon demand such further instruments subordinating this Lease
or attoning to the holder of any such liens as Landlord may request. In the
event Tenant shall fail to promptly execute any instrument of subordination
herein required to be executed by Tenant promptly as requested, Tenant hereby
irrevocable constitutes Landlord as its attorney-in-fact to execute such
instruments in Tenant’s name, place and stead, it being agreed that such power
is one coupled with an interest. Tenant agrees that it will from time to time
upon request by Landlord execute and deliver to such persons as Landlord may
request a statement in recordable form certifying that this Lease is unmodified
and in full force and effect (or if modifications have been made that the same
is in full force and effect as so modified) stating the date to which the
rent and other charges payable under this Lease have been paid, stating the
Landlord is not in default hereunder (or if Tenant alleges a default stating the
nature of such alleged default) and further stating such matters as Landlord may
reasonably request.
17.2
Quiet Enjoyment. Landlord covenants and agrees that upon Tenant
paying the rent and observing and performing all of the terms, covenants
and conditions on Tenant's part to be observed and performed hereunder,
that Tenant may peaceably and quietly have, hold, occupy and enjoy the
Leased Premises in accordance with the terms of this Lease without
hindrance or molestation from Landlord or any persons lawfully claiming
through Landlord.
17.3
Zoning and Good Title. Landlord warrants and represents, upon
which
warranty and representation Tenant has relied in the execution of this
Lease, that Landlord is the owner of the Leased Premises, in fee simple
absolute, free and clear of all encumbrances, except for the easements,
covenants and restrictions of record as of the date of this Lease.
Such exceptions shall not impede or interfere with the quiet use and enjoyment
of the Leased Premises by Tenant. Landlord further warrants and covenants that
this Lease is and shall be a first lien on the Leased Premises, subject only to
any mortgage to which this Lease is subordinate or may become subordinate
pursuant to under Section 17.1, and to such encumbrances as shall be caused by
the acts or omissions of Tenant; that Landlord has full right and lawful
authority to execute this Lease for the Initial Term and any extension thereof,
in the manner, and upon the conditions and provisions herein contained; that
Landlord has no knowledge of any legal impediment to the use of the Leased
Premises as set out herein.
Commercial
Lease page 12 of 17
17.4
Licenses. It shall be the Tenant's responsibility to obtain
any and
all necessary licenses and the Landlord shall bear no responsibility
therefore.
ARTICLE
XVIII - EXTENSIONS/WAIVERS/DISPUTES
18.l
Extension Period. Any extension hereof shall be subject to the
provisions
of Article III hereof.
18.2
Waivers. No waiver of any default of Landlord or Tenant hereunder
shall be implied from any omission to take any 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 by Landlord or
Tenant shall not be construed as a waiver of a subsequent breach of the same
covenant, term or condition. If any action by either Party shall require the
consent or approval of the other Party, the other Party's consent to or approval
of such action on any one occasion shall not be deemed a consent to or approval
of said action on any subsequent occasion or a consent to or approval of any
other action on the same or any subsequent occasion. Any and all rights and
remedies which either Party may have under this Lease or by operation of law,
either at law or in
equity, upon any breach, shall be distinct, separate and cumulative
and shall not be deemed inconsistent with each other, and no one of them,
whether exercised by said Party or not, shall be deemed to be an exclusion of
any other; and any two or more or all of such rights and remedies may be
exercised at the same time.
18.6
Notices. All notices and other communications authorized or required
hereunder shall be in writing, and shall be deemed to have given to and been
received by a Party: (i) when delivered personally, or (ii) three (3) days after
deposit with an reputable national delivery service written verification of
receipt and shall be given by mailing the same by certified mail, return
receipt. If intended for Landlord the same will be mailed to the address herein
above set forth or such other address or addresses as Landlord may hereafter
designate by notice to Tenant, and if intended for Tenant, the same shall be
mailed to Tenant at the address herein above set forth, or such other address or
addresses as Tenant may hereafter designate by notice to Landlord. Either Party
may designate a specific recipient to whose attention the notice shall be
made.
ARTICLE
XIX - PROPERTY DAMAGE
19.l Loss
and Damage. Notwithstanding any provisions of this Lease to the
contrary, Landlord shall not be responsible for any loss of or damage to
property of Tenant or of others located on the Leased Premises, except where
caused by the willful misconduct or gross negligence of Landlord, its agents or
contractors.
19.2
Force Majeure. In the event that Landlord or Tenant shall be
delayed
or hindered in or prevented from the performance of any act or obligation, other
than Tenant's obligation to make payments of rent and other payments or charges
required hereunder, by reason of strikes, lockouts,
unavailability of all suitable materials, failure of power, riots,
insurrections, war or other reason beyond its control, then performance
of such act or obligation shall be excused for the period of the delay and the
period for the performance of such act shall be extended for a period equivalent
to the period of such delay. Notwithstanding the foregoing, lack of
funds shall not be deemed to be a cause beyond control of either
Party.
Commercial
Lease page 13 of 17
ARTICLE
XX - MISCELLANEOUS
20.1
Assignment and Subletting. Tenant shall not assign or sublet all of any portion
of the Leased Premise or assign this Lease in whole or in part without
Landlord’s prior written consent which shall not be unreasonably
withheld.
20.2
Fixtures. All personal property, furnishings and equipment and all
other trade fixtures installed in or hereafter by or at the expense of Tenant
and all additions and/or improvements, exclusive of structural, mechanical,
electrical, and plumbing, affixed to the Leased Premises and used primarily in
the operation of the Tenant's business and made to, in or on the Leased Premises
by and at the expense of Tenant and are capable of being removed from the Leased
Premises without damage thereto shall remain the property of Tenant and Tenant
shall, unless the Landlord otherwise agrees in writing, be entitled and
obligated to, remove the same or any part thereof at any time or times during
the Initial Term or any extension thereof, provided that Tenant, at its sole
cost and expense, shall make any repairs occasioned by such
removal.
20.4
Invalidity of Particular Provision. All of the provisions in this Lease shall be
considered as separate terms and conditions, and in the event that any one is
held to be illegal, invalid or unenforceable, that provision shall be
interpreted to the maximum extent enforceable and the other provisions hereof
shall remain in full force and effect.
20.5
Captions and Definitions of Parties. The captions of the sections of
this Lease are for convenience only and are not a part of this Lease and do not
in any way limit or amplify the terms and provisions of this Lease.
20.6
Successors. Except provided otherwise herein, the terms and provisions of this
Lease shall be binding upon and inure to the benefit of the Parties hereto and
their respective successors and assigns.
20.7 No
Partnership or Other Relationship. Nothing contained herein shall be deemed or
construed by the Parties hereto nor by any third Party as creating the
relationship of principal and agent or of partnership or of a joint venture
between the Parties hereto, it being understood and agreed that neither any
provision contained herein, nor any acts of the Parties hereto, shall be deemed
to create any relationship between the Parties hereto other than the
relationship of Landlord and Tenant.
20.8
Brokers. No Party has acted as, by or through a broker in the effectuation of
this Lease.
Commercial
Lease page 14 of 17
20.9
Entire Agreement. This Lease supersedes any prior understanding concerning this
subject matter and contains the entire and only agreement between the Parties,
and no oral statements or representations or other written matter not contained
in this instrument shall have any force and effect. This Lease shall not be
modified in any way except by a writing executed by both Parties.
20.10
Governing Law. This Lease shall be governed by and construed in accordance with
the laws of the state of Florida without regard to any conflicts of law
principal. The Parties herein waive trial by jury and agree to submit to the
personal jurisdiction and venue of a court of subject matter jurisdiction
located in Pasco County, State of Florida.
20.11 In
the event that litigation results from or arises out of this Lease or the
performance thereof, the Parties agree to reimburse the prevailing Party's
reasonable attorney's fees, court costs, and all other expenses in addition to
any other relief to which the prevailing Party may be entitled.
20.12
Contractual Procedures. Unless specifically disallowed by law, should
litigation arise hereunder, service of process therefor may be obtained through
certified mail, return receipt requested; the Parties hereto waiving any and all
rights they may have to object to the method by which service was
perfected.
20.13
Financial Statement. Upon Landlord’s request Tenant shall promptly
furnish to Landlord at any time during the Initial Term and any extension
thereof financial statements of Tenant prepared by an accountant. Tenant hereby
represents and warrants that all the information contained therein is complete,
true, and correct. Tenant understands that Landlord is relying upon the accuracy
of the information contained therein. Should there be found to exist any
inaccuracy within the financial statement which adversely affects Tenant's
financial standing, or should Tenant's financial circumstances materially
change, Landlord may demand, as additional security, an amount equal to an
additional two (2) months' rent, which additional security shall be subject to
all terms and conditions herein, or elect to terminate this Lease.
20.14
Counterparts. This Lease may be executed and delivered in one or more
counterparts, each of which when executed and delivered shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
agreement.
20.15
Building Rules. Tenant will comply with the rules of the Building as adopted and
altered by Landlord from time to time and will cause all of its agents,
employees, invitees and visitors to do so.
20.16
Memorandum of Lease. The Parties hereto contemplate that this Lease should not
and shall not be filed for record, but in lieu thereof, at the request of either
Party, Landlord and Tenant shall execute a Memorandum of Lease to be recorded
for the purpose of giving record notice of the appropriate provisions of this
Lease.
Commercial
Lease page 15 of 17
20.17
Survival. All provisions of this Lease relating to indemnification, payment,
reimbursement, insurance, covenants, and remedies shall survive termination or
expiration.
IN
WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by
their duly authorized officers or representatives as of the day and year first
above written.
| LANDLORD | TENANT | |||
| Ethos Business Ventures | Dais Analytic Corporation | |||
|
/s/
Xxxxx X.
Xxxxx
|
/s/
X.X. Xxxx
|
|||
| Printed | Printed | |||
|
Name:
Xxxxx X.
Xxxxx
|
Name:
X.X. Xxxxx
|
|||
|
Title :
Member
|
Title:
V.P. Solutions
|
Commercial
Lease page 16 of 17
EXHIBIT "A" LEGAL
DESCRIPTION
The
Property located at or known as:
00000
Xxxxxxxxxx Xxxxx
Xxxxxx,
Xxxxxxx 00000
Xxx 00,
Xxxx Xxxxx Xxxxxxxxxx Xxxx
Xxxxx XX,
Xxxx 0, according to the Plat thereof recorded in Plat Book 33, Pages 65 through
67 of the Public Records of Pasco County, Florida
Commercial
Lease page 17 of 17
