EXHIBIT 10.5
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into this 2nd day of August 2001,
hereinafter called Lessor, and CYBERADS, INC., hereinafter called Lessee.
WITNESS, that Lessor, for and in consideration of the agreement and
covenants hereinafter expressed, to be fulfilled and performed by the Lessee,
does hereby lease and demise unto the Lessee, and the Lessee does hereby hire
and take from the Lessor, an office constituting approximately 3570 square feet
on the 1st floor at suite number(s) 100, of the building located at 0000 X.
Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xx. 00000 on lands owned by Lessor.
TO HAVE AND TO HOLD the premises for a term of 36 months, commencing on
the 18t day of September 2001, and terminating on the 318t day of August 2004,
both dates inclusive with an option to renew for an additional term of 36
months, provided that notice of Lessee's intent to exercise such renewal option
is delivered to Lessor on or before 60 days prior to the end of the initial term
of this lease.
1. RENT. Lessee agrees to pay Lessor the sum of $214,200.00 as the
total agreed rent for the term of the lease, which sum Lessee agrees to pay in
equal monthly installments of $5652.50* (See paragraph #32) each on or before
the 1st day of each and every month for and during the term of this lease,
without demand or invoice, at the Lessor's office at DF PROPERTIES 00000 Xxxxxxx
Xxxxx, Xxxx Xxxxx, XX. 00000 or at such other place and to such other person as
the Lessor may from time to time designate in writing. In addition to the
aforesaid rent, on the date of each monthly rental payment, Lessee agrees to pay
the Lessor Florida State Sales Tax, if not exempt, at the rate of $339.15 per
month, or such other amounts as may be specified by law from time to time. The
total installment amount for rent and tax due monthly for the 1st year of this
lease is $5991. 65.
2. SECURITY DEPOSIT. Lessor hereby acknowledges receipt from Lessee in
addition to all other monies received, of $5652.50, which sum Lessee has
deposited and shall keep on deposit with Lessor as security for the performance
by Lessee of all the terms, covenants and conditions of this lease. Notice of
Lessee's intent to vacate the leased premises upon expiration of the lease terms
must be delivered in writing to Lessor at least 60 days prior to anticipated
move-out date. Failure to give such written notice to Lessor will result in
automatic forfeiture of entire security deposit upon vacating. Nothing herein
shall prejudice Lessor's right to appropriate or forfeit the security deposit
under any other circumstances. If at any time during the existence of the
tenancy initiated by this lease, the Lessee shall be in default hereunder, the
Lessor shall have the right to apply the said deposit, or so much thereof as may
be necessary, towards the reimbursement to Lessor for any expenditures that
shall be incurred by it by reason of such default; and in the event such deposit
shall be diminished or depleted by any such manner, such sums as shall be
necessary to restore said deposit to the original amount set forth above shall
be due Lessor immediately. If the amount of such deposit shall be insufficient
to reimburse and fully discharge such expenses and damages, the Lessee shall be
and remain fully liable for the balance thereof remaining unpaid, and shall
forthwith pay the amount of such balance and deficiency to the Lessor. The
security deposit shall not draw interest and shall be refunded by the Lessor
pursuant to the foregoing provisions of this paragraph. Applications of the
security deposit towards reimbursement of the Lessor, pursuant to this
paragraph, shall not in any way prejudice or diminish any other right or remedy
which the Lessor may have against the Lessee, either under this lease or by
operation of law. Lessee agrees to use chair protectors under chairs where
required to prevent carpet damage.
3. USE OF PREMISES. The premises shall be used for the following
purposes: professional offices retail store as allowed by the city of Boca
Raton, and for no other purposes whatsoever, without the prior written consent
of the Lessor.
4. ASSIGNMENT AND SUBLETTING. Lessee shall not assign, transfer or
sublet the
premises, or any part thereof, without the prior consent of the Lessor, and the
Lessor must approve in writing both the tenants and the business to be conducted
therein. In the event of an assignment or sublease of the premises, Lessee shall
remain liable to the Lessor for the payment of rent and for the faithful
performance of the covenants and conditions of this lease by the assignee or
sublease, to the same extent as though said premises had not been assigned or
sublet.
5. SIGNS. The Lessee shall not affix or display any signs, pictures,
lettering advertisements, awnings or merchandise on any interior or exterior
glass door or window, or on any other exterior portion of the leased premises,
including adjacent grounds, without the prior written consent of the Lessor.
Lessee shall bear the cost of removing any of its signs and the cost of any
damage caused by such removal. Lessee shall have the right to use at their
expense the marquee sign located in the front of the building. All expense
associated with signs including installation and maintenance shall be the
responsibility of the lessee. Any and all signs to be located on the leased
premises shall be purchased by the Lessee and paid for by the Lessee.
6. REPAIRS, MAINTENANCE AND ALTERATIONS. Lessee acknowledges that he
has inspected the premises, that they are in good repair, and agrees to accept
the premises in their present conditions, except as otherwise specified in
writing herein. Lessee agrees to maintain and to surrender the premises,
including any equipment and fixtures of the Lessor now or hereafter installed
thereon, in the same condition, order and repair as they are at the commencement
of the lease, excepting only the reasonable wear resulting from the use of the
premises pursuant to this lease. Lessee shall be responsible for the maintenance
and repair of all damage from whatever cause, of all windows and doors
(including glass and frames) appurtenant to the premises. Lessee shall carry
adequate insurance for such damage and submit evidence thereof to Lessor. Lessee
shall not commence or install any additions, alterations, improvements, wall
covering, fixtures or partitions on the lease premises, without the prior
written consent of the Lessor.
7. DELAYED SERVICE. The obligation of Lessee to pay rent and perform
all of the other covenants and agreements hereunder on the part of the Lessee to
be performed, shall in no wise be affected or excused because Lessor is unable
to supply or is delayed in supplying any service to be supplied, or is unable to
make, or is delayed in making any repair, addition, alteration, or decoration,
or is unable to supply or is delayed in supplying any equipment or fixtures, if
Lessor is prevented or delayed from so doing by reason of an act of God or other
natural disaster, or governmental preemption due to a national emergency
declared by the President of the United States, or in connection with any order
or regulation of any department or subdivision of any governmental agency, or by
reason of conditions of supply and demand which have been, or are affected, by
war or other emergency.
8. DELAYED OCCUPANCY. Landlord shall not be liable for failure to give
possession of the premises upon commencement date by reason of the fact that
premises are not ready for occupancy, or due to a prior tenant wrongfully
holding over or any other person wrongfully in possession or for any other
reason. In such event the rent shall not commence until possession is given or
is available, but the term herein shall not be extended.
9. SERVICES PROVIDED BY LESSOR. Lessor shall furnish and pay for the
services indicated below.
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LESSOR PAID LESSEE PAID
WATER _______ _______
ELECTRICITY _______ _______
OFFICE CLEANING _______ _______
AIR CONDITIONING MAINTENANCE _______ _______
AIR CONDITIONING REPLACEMENT _______ _______
PROPERTY TAXES _______ _______
PLUMBING _______ _______
BUILDING TRASH REMOVAL _______ _______
INSURANCE _______ _______
LICENSE/INSPECTION FEES _______ _______
Lessor shall in no event be liable to Lessee for a reduction or stoppage in
electrical, water, plumbing, air conditioning or elevator service caused by or
beyond the control of Lessor.
Rents agreed upon by the parties hereto are based upon an ad valorem tax burden
of $22,887.09. In the event the total ad valorem taxes and special assessments
levied against the building and land in the initial year or any subsequent
thereto are in excess of the above tax burden, the Lessee shall pay to the
Lessor 35%* of any increase above the base of $22,887.09. Lessee shall pay this
amount to Lessor as additional rent within twenty (20) days after each such tax
or installment thereof shall be due and payable by Lessor.
10. UTILITIES. If Lessor has agreed to supply electrical current in
this lease such a supply of electricity is defined as that amount needed for
normal office use and for normal "desk type office equipment" such as
typewriters, adding machines and small portable calculators. Should Lessee use
equipment drawing more current than those specified herein, or should Lessee
require new or additional circuits, Lessee shall pay for the installation of
said circuits and pay such additional charge should equipment installed use
current in excess of the current used by desk type office equipment". Should any
fuel or electric rate increase 25% or more over any such rate in effect when
this agreement was consummated, then in that event, Lessor, in the next
subsequent calendar year and each subsequent year of this agreement, or any
option thereof, has the option of charging tenant, and tenant agrees to pay a
pro- rata share of any such increase. The word "rate" is defined to mean any
rate increase and/or any adjustment or surcharge, or any method that has the
effect of increasing the "cost per unit of consumption". This clause does not
include increased costs resulting only from increased consumption. Where the
Lessee's space is serviced by central air conditioning the Lessor will provide
air conditioning to the demised premises Monday through Friday during normal
business hours (7AM to 6PM).
11. FLOURESCENT TUBE REPLACEMENT. To prevent damage to fixtures,
flourescent tubes must be replaced when flickering or when "dim". When it
becomes necessary to replace said tubes or fixtures, Lessor will do SO. Lessee
should notify Lessor of the need to replace said tubes or fixtures.
12. PARKING AREA. Lessor shall not be required to provide any service
whatsoever in connection with parking. Lessor shall not be liable or responsible
for loss or damage of any nature whatsoever in connection with the use of said
parking. Tenant agrees to hold Lessor harmless against any claim for damage or
injury to property or person (s), which may be directly or indirectly caused by
tenant.
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Lessor will make reasonable effort to prevent unauthorized use of parking area
but shall not be responsible for others so doing. Lessor shall furnish 15
parking spaces to be designated by Lessor.
13. RULES AND REGULATIONS. The Lessee shall comply with all regulations
and rules that may be made by the Lessor for the convenience and benefit of all
of the tenants. Lessee further agrees to cooperate and assist Lessor in
maintaining reasonable parking and traffic patterns in connection therewith, and
will take every reasonable step necessary to assure conformance with the
regulations established for that purpose by his employees, customers and
clients. Lessee agrees that all receiving and delivery of goods and merchandise
shall be made only by way of the service areas and corridors provided for such
purposes. Lessor hereby grants to Lessee the right, during the term of this
lease, to use, in common with others entitled to the use thereof, such service
areas and corridors subject to such reasonable regulations as Lessor may make
from time to time.
14. REFUSE-GARBAGE-TRASH. Disposing of trash, etc. shall be done by
tenant in accordance with Lessor rules and/or by any government agency, and
Lessee further agrees that Lessee's personal property etc., shall be kept only
in Lessee's leased area and shall not be placed in any common area, nor in the
parking lot, nor on sidewalks or in any place which would create a nuisance or
obstruct, or would create any hazard. Lessee further agrees to dispose of trash
inside, and not adjacent to or around, the dumpster provided.
15. LAWFUL USE-ANIMALS. The demised premises shall not be used for
sleeping, cooking, housekeeping, or any similar purpose. No animals or birds or
reptiles of any kind shall be brought into or kept on the demised premises.
16. FIRE AND OTHER CASUALTIES. In the event that the premises, or a
major portion thereof, are destroyed or so damaged by fire or other casualty so
as to render them untenable, the Lessor shall have the option to terminate this
lease or to forthwith repair such damage or destruction at his own cost and
expense, and rent shall cease until the completion of such repairs. In the event
that the premises shall be partially destroyed, so that the major portion
thereof remains usable by Lessee, then the rental shall xxxxx to the extent that
the damaged portion bears to the whole of the leased premises and such damage
shall be restored by the Lessor forthwith, and upon completion of such repairs,
the full rental shall commence. The Lessor shall notify the Lessee in writing,
within 30 days after any such fire or other casualty, whether it elects to make
such repairs or to terminate the lease.
17. LIABILITY CLAIMS-INDEMNIFICATION. All property of any kind, placed
or moved into the premises shall be at the risk of the Lessee or owner thereof,
and Lessor shall not be liable to the Lessee or any other person for any injury,
loss or damage to property or to any person on the premises, caused other than
by the negligence of the Lessor.
18. LESSOR NOT LIABLE FOR LOSS ETC. OF LESSEE PROPERTY. It is
understood and agreed by and between the parties that Lessor shall not be liable
for loss or damage to tenant property whether or not such loss or damage is
caused by wind, rain, water, electricity, or the flow or leak of anything into
the demised premises, or for loss or damage created by acts of others, or by
acts of God, or from any cause or happening whatsoever, and Lessee is hereby put
on notice that Lessee failure to insure self against such losses or damage shall
not shift liability from Lessee to Lessor. Lessor shall further have no
obligation to purchase or install storm shutters.
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19. INSPECTION BY LESSOR. The Lessor, at all reasonable times, may
enter into the premises for the purpose of determining if the same are being
kept in good repair and condition, to make such repairs as it may see fit, or to
exhibit the premises to a prospective tenant or prospective purchaser of the
building.
20. LATE RENT CHARGES-COLLECTION COSTS. Time is of the essence in
respect to rent and any payment due under this lease. All rents and other
payments required to be paid by the Lessee are due on the first of the month,
and shall be subject to a 5% late charge if not received by the Lessor on or
before the 7th day of the month. The Lessee agrees to pay all costs and
expenses, together with reasonable attorney's fees, which may be incurred by the
Lessor in enforcing the terms, covenants and conditions of this lease, whether
by suit or otherwise.
21. INSOLVENCY OF LESSEE. If Lessee, during the term of this lease,
shall be adjudicated as bankrupt, or insolvent under any federal or state law
relating to bankruptcy or insolvency, makes an assignment for the benefit of
creditors, or is subject to the appointment of a receiver, then the happening of
any such event shall be deemed a breach of this lease, and upon the occurrence
of any such event, Lessor may, at its option, repossess the premises or
terminate this lease agreement.
22. DEFAULT OF LESSER. In the event that Lessee shall vacate or abandon
the demised premises at any time when a part of the total rent due under this
lease remains unpaid, or in the event of nonpayment of any rent as provided for
in this lease, or in the event of any breach of any of the conditions,
stipulations, promises or covenants by Lessee, as set forth in the lease,
Lessee's right to possession of the demised premises shall forthwith terminate
with or without any notice or demand whatsoever, and the retention of possession
thereafter by Lessee shall constitute an unlawful detainer of the demised
premises. In such event, and if Lessor so elects, and either with or without any
notice or demand whatsoever this lease shall terminate. Whether or not this
lease is terminated by the election of Lessor, upon the termination of Lessee's
right to possession, Lessee shall immediately surrender possession and Lessor
shall have the immediate right to repossess the demised premises with or without
legal proceeding; and to remove, expel and put out Lessee's or any other person
who may be in or upon the demised premises, but said entry by Lessor shall not
constitute a trespass or a forcible entry or detainer, nor shall the same result
in a forfeiture of rents that may be due or a waiver of any premise, agreement
or covenant of Lessee as provided by this lease. In such event, the entire
amount of all rent which would have become due and payable during the remainder
of the term of this Lease would be due and payable immediately, in which event
Lessee agrees to pay the same to Lessor immediately. Such payment shall
constitute payment in advance of the rent stipulated for the remainder of the
lease term. Acceptance by Lessor of the payment of such rent shall not
constitute a waiver of any then existing default thereafter occurring. Lessee
hereby waives all notice of any election made by the Lessor under this paragraph
of this lease and further waives any demand for rent, notice to quit, demand for
possession and any and all notices and demands whatsoever of any kind or nature
which mayor shall be required by any law of the State of Florida, relating to
landlords and tenant, or in respect to any law or laws relating to forcible
entry and detainer, or any other statute or law.
23. TERMINATION BY SUMMARY PROCEEDINGS ETC. Should the relation of
Lessor and Lessee cease or terminate by reason of the re-entry of Lessor under
the terms and covenants contained in
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this lease, or by the ejectment of Lessee by summary proceedings, or other wise,
or after abandonment of the premises by Lessee, it is hereby agreed that Lessee
shall remain liable and shall pay in monthly payments the rent which accrues
subsequent to the re-entry by Lessor, and Lessee expressly agrees to pay as
damages for the breach of the covenants herein contained, the difference between
the rent reserved and the rent collected and received, if any, by Landlord,
during the remainder of the unexpired term, and to also pay Lessor's attorney's
fees for collecting said rent.
24. TERMINATION. Upon termination of this lease for any reason
whatsoever, Lessee shall immediately and peacefully yield up and surrender
possession of the premises, together with the keys therefore, leaving the
premises in the same condition and repair as existed at the commencement of this
lease, subject only to the usual and ordinary wear arising from the use of the
premises permitted by this lease. All of Lessee's furniture, movable trade
fixtures and personal property not removed from the Leased Premises within 5
days of Lessor's written request at the termination of this Lease, whether such
termination occurs by lapse of time or otherwise, shall be conclusively presumed
abandoned by Lessee, and Lessor may declare such property to be the property of
Lessor or may dispose of the property by any method it deems advisable. In the
event that Lessee shall fail to surrender possession upon termination of this
lease, it shall be deemed a tenant at sufferance, and shall have no rights
whatsoever under this lease.
25. EMINENT DOMAIN. If the whole or part of the leased premises shall
be taken or condemned by any competent authority for any public use or purpose,
then, and in that event, at the option of the Lessor, this lease and the tenancy
of Lessee shall terminate without any liability of the Lessor, and upon such
termination, rent shall cease. Lessee hereby waives his right to claim any award
of compensation by virtue of said condemnation, for any reason whatsoever.
Lessor reserves the right, if the building is demolished for redevelopment, to
nullify this lease with six months' prior written notice.
26. POSSESSION AND QUIET ENJOYMENT - LESSOR'S DUTY TO REPAIR. Lessor
covenants and agrees, that Lessee, during the term of this lease, shall have
full control, use and possession of the leased premises for the term hereinabove
set forth, subject, however, to the terms and conditions of this lease and of
any and all mortgages and other security instruments executed in connection
therewith, if any, now or in the future in force and effect with respect to the
building, or of any portion thereof, of which the leased premises form a part.
The Lessor shall maintain and keep in good repair the exterior, structural
components and common interior hallways of the building of which the leased
premises form a part.
27. NOISE OR ODORS. Lessee shall not cause or permit any noise or
conditions that could disturb others, such as loud playing radios, television or
public address systems, etc. Neither shall Lessee permit or cause the use of any
equipment or device emitting any odor, nor permit anything to be done that will
annoy or interfere with the rights, privileges, or convenience of any tenant or
anyone.
28. LOCK CHANGES-NEW LOCKS. Locks shall be changed, or new locks
installed, at Lessee expense and only by Lessor approved locksmith, and any
locks changed or any new locks must be master keyed as necessary to suit Lessor
requirements. There will be a minimum charge of One-Hundred Dollars ($100.00)
for any unauthorized change of locks.
29. FRONT AND REAR ENTRANCE DOORS. Tenant shall have access to the
demised premises at all times, however when occupying the demised premises
during non-business hours tenant
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shall be sure that the front and rear building entrance doors are kept locked
during any use during non- business hours, and check that same are locked when
leaving the premises after use during non-business hours. (Compliance is
important for security).
30. INTEGRATION. Any stipulations, representation, promises or
agreements, oral or written, made prior to or contemporaneously, with this lease
agreement shall have no legal or equitable effect, and the only agreement made
and binding by the parties hereto is contained herein and constitutes the
complete and total integration of the intent and understanding of the Lessor and
Lessee. This agreement may be subsequently modified or amended only by a written
instrument executed by both of the parties hereto. Ail of the terms, provisions,
covenants, conditions, and obligations contained in this lease agreement shall
extend to, bind and inure to the benefit of, as the case may require, the heirs
and personal representatives, successors and assigns of the Lessor or Lessee
herein, or their successor's interests.
31. NOTICES. This lease shall not be recorded. All notices, demands and
requests which mayor are required to be given by either party to the other shall
be in writing, and shall be delivered personally, or mailed, postage prepaid,
certified mail, return receipt requested, if to the Lessor, at DF PROPERTIES,
00000 XXXXXXX XXXXX, XXXX XXXXX, XX 00000 or if to the Lessee at the address of
the premises set forth herein.
32. ANNUAL RENT ADJUSTMENT.
The rent for the 1st twelve months of this lease shall be at
$19 per square foot or $5652.50 per month plus sales tax.
The rent for the 2nd twelve months of this lease shall be $20
per square foot or $5950.00 per month plus sales tax.
The rent for the 3rd twelve months of this lease shall be $21
per square foot or $6247.50 per month plus sales tax.
Any option period that is exercised the following shall apply:
The rent associated with any option period that is exercised hereof shall be
adjusted on an annual basis, on each anniversary date of this lease, so that the
monthly rent in each month for the next l2 months of this lease shall be
equivalent to the purchasing power of market rent, for the month of September
2004, such purchasing power to be measured by the Consumer Price Index number
for the month of May, last preceding the date of adjustment. Such new monthly
rentals shall be computed by multiplying market rent by the designated Consumer
Price Index number and dividing the result by the Index number for the month of
May 2004, which is yet to be published. The index number to be utilized is the
index number from the Consumer Price Index for Urban Wage Earners and Clerical
Workers (including single workers), 1967 equals 100, published by U.S.
Department of Labor-Bureau of Labor Statistics. Any publication by the U.S.
Department of Labor in which such index numbers are published shall be
admissible as evidence in any judicial proceeding involving this lease without
further proof of authenticity. In the event the U.S. Department of Labor ceases
to prepare and to publish such index numbers, the adjustment of rent thereafter
shall be according to the most closely comparable Consumer Price Index published
by the U.S. Department of Labor, and if such an index is not determined by that
department, then the most closely comparable index as determined by agreement of
Lessor and Lessee, and in the absence of this agreement and as determined by
arbitration in accordance with the then existing rules of the American
Arbitration Association. In the event
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of any delay in establishing an adjustment of rental, the Lessee shall continue
paying the rental under the preceding rental adjustment until such time as the
required adjustment is determined, at which time an accounting will be made
retroactive to the beginning of the adjustment period in question.
Not withstanding the foregoing, the rent under this lease shall never be reduced
below the amount set forth in Paragraph 1 hereof. This paragraph shall apply to
any renewal of this lease and to any period subsequent to the termination of the
term of this lease during which Lessee holds over or remains in possession with
or without the consent of the Lessor.
EXAMPLE OF ABOVE FORMULA
------------------------
$6247.50 x Consumer Price Index at Anniversary Date = New rent for the next lease year
---------------------------------------------------
Consumer Price Index at May 2003
EXAMPLE: $300 x 460 = $306.67
-------------------
33. OFFER. This lease shall not constitute a binding agreement until
executed by both parties hereto. This lease, when signed only by the Lessor,
shall constitute an offer only, which offer shall expire without further action
on the part of the Lessor unless executed by the tenant and delivered to the
Lessor within 10 days following the date first set forth above.
34. INTENT TO VACATE. Notice of Lessee's intent to vacate the leased
premises upon expiration of the lease terms must be delivered in writing to
Lessor at least 60 days prior to anticipated move-out date. Failure to give such
written notice to Lessor will result in automatic forfeiture of entire security
deposit upon vacating. Nothing herein shall prejudice Lessors right to
appropriate or forfeit the security deposit under any other circumstances. All
requirements for written notice shall extend beyond the term of this Lease
and/or any options in the event that Lessee shall remain in the space for any
reason, including any verbal month to month agreements. This would pertain to
the notice specified in F.S. 83.03 and also any and all other requirements for
notice.
35. SPECIAL CONDITIONS. In consideration of Lessor's covenants and
agreements hereunder, Lessee hereby covenants and agrees not to disclose any
terms, covenants or conditions of this Lease to any other party without the
prior written consent of Lessor.
36. ADDITIONAL PROVISIONS. The additional paragraph(s) numbered 37 and
attached hereto at the time of execution by both parties are incorporated into
and made a part of this lease. The provisions in such additional paragraphs
shall supercede the provisions of any printed paragraphs to the extent such
additional provisions conflict with the printed provisions in this lease.
IN WITNESS WHEREOF, the parties hereto have executed this lease
consisting of 37 paragraphs including the RIDER, if, any in duplicate, each of
which shall stand as an original, on the date first set forth above.
WITNESS AS TO LESSOR: LESSOR: XXXXXXX XXXXXXX PROPERTIES, LLLP
______________________ By: ____________________________ Date Signed:
Title: President
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WITNESS AS TO LESSEE: LESSEE: CYBERADS, INC.
_____________________ By: ____________________________ Date Signed:
Title:
Additional 37. Tenant Improvements
Lessor agrees to shampoo carpet, touch up walls as necessary, and replace
damaged or missing ceiling tiles. All lights, plumbing fixture and doors shall
be repaired as necessary.
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