LEASE AGREEMENT
SAWGRASS ADMINISTRATION BUILDING
PONTE VEDRA BEACH, FLORIDA
THIS LEASE is made and entered into the 1st day of August, 1997, by
and between XXXXXXX PARTNERSHIPS II, LTD., a Florida Limited Partnership
("Lessor"), whose address is X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000-
6746, and ACCESS POWER, INC. ("Lessee"), whose address is 000 Xxxxxxxx Xxxx,
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000.
NOW THEREFORE, for and in consideration of the mutual promises,
covenants and conditions herein contained, and the rent reserved by Lessor
to be paid by Lessee to Lessor, Lessor hereby leases to Lessee and Lessee
hereby rents from Lessor a portion of the Building located in St. Xxxxx
County, Florida, as more particularly described on Exhibit A attached hereto
(the "Premises"), for the term, at the rentals, and upon the terms and
conditions hereinafter set forth.
1. PREMISES.
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The Premises hereby leased, let and demised by Lessor unto Lessee,
contain approximately 1,830 square feet of finished office space, together
with the right to use, on a non-exclusive basis with other occupants of the
Building, the common areas of the Building consisting of approximately 2,725
square feet of space. Lessee hereby acknowledges that it leases the
Premises in their current "as is" condition unless otherwise provided by a
separate agreement signed by the Lessor and Lessee. See Exhibit E
"Additional Space".
2. TERM.
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2.1 The term of this Lease and the accrual of rents hereunder
shall commence on 30 days following the date hereof (mutual acceptance) (the
"Commencement Date") and shall expire at 12:00 P.M. midnight of the last day
of the 37th month thereafter, including any partial month in accordance with
paragraph 3.2 hereof if this Lease commences on any date other than the
first (1st) day of a month (the "Term"), or the expiration of any option
period exercised in accordance with Paragraph 2.4 below, but in no event
shall the term of this Lease extend beyond / / 2000 (the "Expiration
Date").
2.2 At the Expiration Date, or upon the earlier termination of
this Lease, Lessee shall peaceably vacate and surrender the Premises to the
Lessor in accordance with this Lease and, except for conditions caused by a
casualty giving rise to termination under paragraph 11 hereof, the Premises
shall then be in a broom clean condition, reasonable wear and tear excepted.
2.3 If the Lessee retains, without Lessor's consent, possession
of the Premises or any part thereof after the Expiration Date, Lessee shall
pay Lessor per diem rent at double the rate payable in the month immediately
preceding said holdover, for the time Lessee thus remains in possession, but
acceptance of said payments by Lessor shall not operate to extend the term
of this Lease.
2.4 Provided Lessee is not in default hereunder, Lessee is
granted the option to extend the Lease term for 2 - 36 successive month
periods following the expiration of the initial term (the "Extended Term")
upon the same terms and conditions set forth herein except, rent payable
during the Extended Term shall be in the following amounts.
2.4.1 During the first Extended Term, which shall be
months 38 through 73, the total amount of one hundred seventeen thousand,
four hundred thirty-six and No/100 Dollars ($117,436.00), payable $ SEE
EXHIBIT D monthly;
2.4.2 During the second Extended Term, which shall be
months 74 through 109, the total amount of one hundred twenty-eight
thousand, three hundred twenty-five and No/100 Dollars ($128,325.00),
payable $ SEE EXHIBIT D monthly.
In addition, in the event this Lease provides for improvements to be made to
the Premises on or before Lessee's taking possession of the Premises, said
provisions shall not be applicable. This option to extend the term of this
Lease may only be exercised by Lessee's giving written notice of its
exercise thereof to Lessor not later than sixty (60) days prior to the
expiration of the current term of the Lease.
3. RENT.
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3.1 During the Term hereof, Lessee covenants and agrees to pay to
Lessor a fixed rent (subject to adjustment as set forth hereafter) ("Rent"),
in advance, in the total amount of one hundred seven thousand, four hundred
seventy & 59/100 Dollars ($107,470.59), payable as follows: (a) months 2
through 13, $2,897.50 monthly; (b) months 14 through 25, $2,984.43 monthly;
(c) months 26 through 37, $3,073.96 monthly. The Rent shall be due and
payable in monthly installments from the Commencement Date forward. (First
month rent - $0).
3.2 Each monthly installment of Rent shall be payable to Lessor
in advance on the first (1st) day of each calendar month of the term at
Lessor's address set forth above, or at such other place as Lessor may from
time to time designate in writing, without notice, demand or offset. If the
Commencement Date is not on the first (1st) day of a calendar month, the
Rent for the period between the Commencement Date and the first (1st) day of
the following month shall be apportioned on a per diem basis, at the monthly
rental rate provided and shall be payable on the Commencement Date. IN
ADDITION TO THE RENT PAYABLE DURING THE TERM OF THIS LEASE, LESSEE SHALL
ALSO PAY THE AMOUNT OF ANY USE OR SALES TAX ON SAID RENT IMPOSED BY THE
STATE OF FLORIDA.
3.3 Upon execution of this Lease, Lessee shall deposit with
Lessor a sum equal to $2,897.50 (1) month's rent (the "Deposit"). The
Deposit shall be held by Lessor without liability for interest thereon as
security for the faithful performance of all the terms and conditions of
this Lease by Lessee. If the rent herein reserved or any other sum payable
by Lessee to Lessor shall be overdue or unpaid, or should Lessor make
payments, or repairs to the Premises, on behalf of Lessee which Lessee is
required to make, or should Lessee fail to perform any of the terms of this
Lease, then Lessor may, at its option and without prejudice to any other
remedy to which Lessor may have on account thereof, appropriate and apply
the Deposit, or so much thereof as may be necessary to compensate Lessor
toward the payment of rent or loss or damage sustained by Lessor due to such
breach on the part of Lessee, and Lessee shall forthwith, upon demand by
Lessor, restore the Deposit to the original sum deposited. Should Lessee
comply with all of the terms of this Lease and promptly pay all of the rent
as it falls due, and all other sums payable by Lessee to Lessor, the Deposit
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shall be returned in full to Lessee within thirty (30) days following the
Expiration Date.
3.4 Tenant hereby acknowledges that late payment by Tenant of
Rent and other sums due hereunder will cause Landlord to incur costs, the
exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to processing and accounting charges and late
charges which may be imposed on Landlord by the terms of any mortgage or
trust deed covering the Demised Premises. Accordingly, if any Installment
of Rent or any other sum due from Tenant shall not be received by Landlord
within ten (10) days after such amount shall be due, Tenant shall pay to
Landlord a late charge equal to five percent (5%) of such overdue amount.
It is agreed that such late charge represents a fair and reasonable estimate
of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder, including but not limited to the collection of interest on such
late payment.
4. USE.
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Lessee shall use the premises solely for the purpose of office space in
connection with Lessee's software development, sales, and support business
and for no other purpose whatsoever. Lessee shall not make, suffer, or
permit any unlawful, improper, or offensive use of the Premises, or any part
thereof, or permit any nuisance thereon. Lessee acknowledges that its
business is not a general retail or public "walk-in" operation.
5. REPAIRS, MAINTENANCE, SURRENDER, AND OPERATIONAL COSTS.
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5.1 Subject to the obligation of Lessee to pay to Lessor a "pro
rata share" (as defined below) of the costs thereof, Lessor shall:
(a) make provisions for the maintenance of the exterior
walls, roof, building exterior, and structure of the Building in good
repair, and the roof of the Building water tight;
(b) make provisions for the maintenance of the exterior
glass, grounds, parking areas, and walks of the Building, and common areas
in good condition;
(c) make provisions for the maintenance of the interior of
the Premises (excluding floor, wall, and ceiling coverings, light bulbs and
fixtures, personal property owned or leased by Lessee or those claiming by,
through or under Lessee, telephone equipment and telephone lines, trade
fixtures, interior glass, and interior partitions), including plumbing,
wiring, piping, heating and cooling equipment, fixtures and equipment, in
good and substantial repair;
(d) make provisions for landscaping maintenance;
(e) make provisions for pest control service to the
Premises;
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(f) make provisions for electric, water and sewer services
and trash collection;
(g) make provisions for janitorial services to the common
areas of the Building;
(h) make provisions for the payment of all assessments,
taxes, and levies imposed on the Building, land or the associated common
areas including, without limitation, ad valorem taxes and association dues.
5.2 Lessee shall be liable for and required to make any repairs,
perform any maintenance, or satisfy any claims to or upon the Premises or
the Building, that are required by, related to, or which arise from or grow
out of negligence, fault, misfeasance, or malfeasance of or by Lessee, its
employees, agents, invitees, licensees, or customers.
5.3 Except for Lessor's maintenance obligations provided above,
Lessee shall service, keep, repair, replace, and maintain the interior of
the Premises and the property owned or leased by Lessee clean and in good
condition and repair during the term of this Lease including, without
limitation, floor, wall and ceiling coverings; light bulbs and fixtures;
property owned or leased by Lessee or those claiming by, through or under
Lessee; telephone equipment and telephone lines; trade fixtures; interior
glass and interior partitions. Lessee agrees to make repairs promptly as
they may be needed at is own expense, and at the end of the term or upon
termination of this Lease, Lessee shall deliver up the Premises in good
condition and repair, reasonable wear and tear excepted, and in a broom
clean condition with all glass and all windows and doors intact except for
damage to such glass by fire or other casualty beyond the control of Lessee.
5.4 Lessee shall be responsible for placing its trash in the
trash receptacles provided by Lessor on the exterior of the Building.
Lessee shall be responsible for arranging and paying for all other utility
services, cleaning services, and maintenance services other than those which
Lessor is specifically required to furnish to Lessee under this Lease
including, without limitation, phone service, additional cooling and heating
systems, if necessary, daily cleaning services, and security services.
5.5 Lessor and Lessee acknowledge that a portion of the Rent is
allocated to Lessee's estimated "pro rata share" of all assessments and
taxes assessed against the Building, the common areas, and the real property
upon which the Building and common areas are located and all charges paid or
incurred by Lessor in maintaining, repairing, replacing, servicing and
insuring the Building, the Premises, and associated common areas and
providing electrical, water and sewer, and trash collection services to the
Building, the Premises and associated common areas (the "Operating Costs"),
as set forth on Exhibit B attached hereto. Lessee acknowledges that its
percentage of charges is based on the ratio of Lessee's total square footage
of the Premises plus the pro rata share of the common areas of the Building
(which pro rata share is equal to 17.21 percent (17.21%) of the total, or
2,145 square feet) to the total square footage of the Building. Within one
hundred twenty (120) days after the end of each annual accounting period
chosen by Lessor, Lessor shall furnish to Lessee a statement setting forth,
in reasonable detail, all charges incurred or paid by Lessor as Operating
Costs. In the event that portion of the Rent allocated to Operating Costs
and paid by Lessee to Lessor is less than Lessee's pro rata share of
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Operating Costs, Lessee agrees to pay to Lessor, within ten (10) days after
receipt of Lessor's statement, the amount of the underpayment, and the
monthly installments of Rent for the remainder of the term may be increased
accordingly, at Lessor's option. In the event Lessee has paid to Lessor
more than its pro rata share of the actual Operating Costs, no refund shall
be due Lessee.
5.6 Lessee acknowledges that the Premises are encumbered by and
subject time to the Restated Sawgrass Declaration of Covenants Re:
Assessments and the Articles of Incorporation and the Bylaws of the Sawgrass
Association, Inc. Lessee shall abide by all the rules, regulations, and
covenants that relate to Lessee and the Premises as of the date of this
Lease.
6. QUIET ENJOYMENT.
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Subject to the terms and provisions of this Lease, Lessor covenants
that it shall do nothing to disturb Lessee's quite enjoyment of the Premises
during the term of this Lease if Lessee shall observe and perform the
covenants and provisions of this Lease.
7. TAXES AND GOVERNMENTAL ASSESSMENTS.
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Lessee shall pay before delinquency all governmental assessments,
license and permit fees and other governmental levies and charges, general
and special, ordinary and extraordinary, unforeseen as well as foreseen, of
any kind and nature whatsoever which are assessed, levied, confirmed,
imposed or become a lien upon Lessee's property in the Premises and taxes
imposed by the terms of this Lease. The terms of this paragraph shall
include, without limitation, sales and use taxes imposed on the rents, fees,
and charges paid to Lessor under this Lease.
8. RIGHT OF ACCESS.
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Subject to Lessor's right to promulgate uniform rules for the use
thereof, Lessee shall have a non-exclusive license and right to the non-
exclusive use, in common with employees, and invitees, of automobile and
equipment parking and storage areas, driveways, and footways, the common
areas of the Building, and other facilities as may be designated from time
to time by Lessor, subject to the terms and conditions of this Lease.
9. ALTERATION TO THE PREMISES AND REMOVAL OF EQUIPMENT.
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Except for the installation of unattached trade fixtures, furnishings
and equipment, Lessee shall not make any alteration or addition to the
Premises without first obtaining the express prior written consent of
Lessor. Upon expiration and termination of this Lease, all attached
installations, fixtures, improvements, and alterations made or installed by
Lessee, including electric lighting fixtures, made by Lessee, and all
repairs, improvements, replacements, and alterations to the Premises made by
Lessee, shall remain a part of the Premises unless required to be removed by
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Lessor, in which event Lessee shall repair any damage caused by removal of
said improvements.
10. NO LIENS.
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Lessee agrees that it will make full and prompt payment of all sums
necessary to pay for the cost of repairs, alterations, improvements,
changes, or other work done by Lessee to the Premises. Lessor and Lessee
agree to indemnify and hold harmless one another from and against any and
all such costs and liabilities incurred by either party arising from or
growing out of such actions by the other, and against any and all
mechanics', materialmen's, or laborer's liens arising from or growing out of
such work or the cost thereof which may be asserted, claimed, or charged
against the Premises or the Building or site on which it is located.
Notwithstanding anything to the contrary in this Lease, the interest of
Lessor in the Premises shall not be subject to liens for improvements made
by or for Lessee, whether or not the same shall be made or done in
accordance with an agreement between Lessor, and it is specifically
understood and agreed that in no event shall Lessor, or the interest of
lessor in the Premises, be liable for or subjected to any mechanics',
materialmen's or laborer's liens for improvements or work made by or for
Lessee; and this Lease specifically prohibits the subjecting of Lessor's
interest in the Premises to any mechanics', materialmen's or laborer's liens
for improvements made by Lessee or for which Lessee is responsible for
payment under the terms of this Lease. All persons dealing with Lessee are
hereby placed on notice of this provision. If any notice or claim of lien
shall be asserted of record against the interest of Lessor in the Premises,
the Building in which the Premises are located, or any improvement or work
done by or for Lessee, or any person claiming by, through or under Lessee,
or for improvements or work the cost of which is the responsibility of
Lessee, Lessee agrees to have such notice of claim of lien cancelled and
discharged of record as a claim against the interest of Lessor in the
Premises, the Building in which the Premises are located, or the site on
which the Premises are located (either by payment or bond as permitted by
law) within ten (10) days after notice to Lessee by Lessor, and if Lessee
shall fail to do so, Lessee shall be considered in default under this Lease.
11. CASUALTY.
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In the event the Premises are rendered untenantable by fire or other
casualty which in the reasonable opinion of Lessee shall render the Premises
unfit for the continued operation of Lessee's business, Lessee shall have
the right to terminate this Lease. If Lessee elects to terminate this
Lease, the Rent shall be paid to and adjusted as of the date of such
termination by Lessee, and the term of this lease shall then expire, this
Lease shall be of no further force or effect, Lessor shall be entitled to
sole possession of the Premises, and Lessee shall assign to Lessor the right
to receive payment of any insurance proceeds payable with respect to said
casualty. Lessor shall have no obligation to Lessee to rebuild or repair
the Premises unless required pursuant to the terms of the Lease.
12. INSURANCE AND INDEMNITY.
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Lessee shall, at its expense, provide and maintain in force during the
entire term of this Lease, and any extension or renewal hereof, for its
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operations in the Premises, the Building and the common areas, public
liability insurance with limits of coverage of not less than Five Hundred
Thousand and No/100 Dollars ($500,000.00) per person, and not less than One
Million Dollars ($1,000,000.00) for each occurrence, and property damage
insurance with limits of coverage of not less than Five Hundred Thousand and
No/100 Dollars ($500,000.00) per occurrence, which may be incorporated into
blanket or umbrella coverage of Lessee. Lessee's coverage must name Lessor
as an additional insured.
12.1 Lessee acknowledges that Lessor is required under the terms
of the Lease to maintain throughout the term of the Lease, casualty
insurance and general comprehensive and extended coverage insurance for the
Premises equal to the full insurable replacement value of the Building and
all improvements thereon. Lessee acknowledges that no policy of insurance
maintained by Lessor provides coverage for the property of Lessee and is
advised to obtain insurance coverage for said property.
12.2 Lessor shall provide evidence of Lessor's insurance coverage,
and Lessee shall provide evidence of its insurance coverage, as required
herein, upon execution of this Lease and thereafter within thirty (30) days
of the anniversary date of such policies of insurance. Lessee's and
Lessor's policies of insurance shall name each other as additional insureds.
If at any time Lessor or Lessee shall receive a distribution of insurance
proceeds which is properly allocable to the interest of the other party,
then the party receiving such distribution shall immediately distribute such
proceeds to the party entitled to same.
12.3 Lessee will indemnify Lessor and save Lessor harmless from
and against any and all claims, actions, damages, liability and expense
(including, without limitation, reasonable fees of attorneys, investigators
and experts) in connection with loss of life, personal injury or damage or
damage to property arising out of the occupancy or use by Lessee of the
Premises or any part thereof or occasioned wholly or in part by any act or
omission of Lessor, its agents, contractors, employees, licensees or
invitees, or by breach of Lessor's obligations under the terms of this
Lease.
13. INSPECTION AND REPAIR.
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Lessor or its respective representatives shall have the right at all
reasonable times and without advance notice, to enter upon the Premises for
the purpose of inspection or for the purpose of making or causing to be made
any repairs or otherwise to protect its interests.
14. DEFAULT.
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14.1 If Lessee shall (a) fail to make any rental or other payment
due hereunder within five (5) days after the same shall become due, or (b)
file a voluntary petition in bankruptcy or shall be adjudicated bankrupt or
insolvent or shall file any petition or answer seeking any reorganization,
arrangement or composition, readjustment, liquidation, dissolution or
similar relief for itself under the present or any future federal bankruptcy
act, or (c) make an assignment for the benefit of its creditors, or (d) have
its leasehold estate taken upon execution against Lessee, or (e) abandon the
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Premises during the terms thereof, or (f) breach or fail to perform any of
the agreements made in this Lease other than the agreement to pay rent, and
shall fail to cure or to commence and diligently pursue such cure of any
non-monetary default within fifteen (15) days after written notice from
Lessor, then Lessor, in any such event(s), shall have the option to:
(a) Xxx for rents as they may become due; or
(b) Accelerate all rents due hereunder and xxx Lessee for
same; or
(c) Terminate this Lease, resume possession of the Premises
for the account of Lessee, and recover immediately from Lessee the
difference between the total rent for which provision is made in this Lease
and the fair rental value of the Premises for the remainder of the Lease
term, together with any other damage arising from or growing out of
abandonment or a breach or default under this Lease.
14.2 The remedies for which provision is made in this paragraph
14. shall not be exclusive, and in addition Lessor may pursue such other
remedies as are provided by law in the event of any breach or default of
Lessee. Lessee agrees to pay all costs and expenses incurred by Lessor,
including reasonable attorney's fees arising from, or growing out of, the
collection of rent or damages or enforcing other rights of Lessor in the
event of a breach or default by Lessee, irrespective of whether Lessor
elects to terminate this Lease by reason of such a breach or default.
15. SUBORDINATION.
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All rights and interests of Lessee hereunder are and shall be and
remain subject, subordinate, and inferior to any and all mortgages, leases
and ground leases heretofore or hereafter given and encumbering the
Premises, or any part thereof, and shall likewise be subordinate and
inferior to all renewals, modifications, consolidations, replacements, and
extensions of any such instruments.
16. ASSIGNMENT AND SUBLETTING.
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Lessee shall not, without the prior written consent of Lessor, assign
the Lease, sublet the Premises in whole or in part or permit its interest in
this Lease to be vested in any third party by operation of law or otherwise.
Any consent to subletting or assignment or a transfer of Lessee's interest
in this Lease shall be conditioned upon compliance with the terms of this
Lease with respect to assignment and subletting. Lessor shall have the
right to freely assign this Lease to any party.
17. CONDEMNATION.
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Lessor reserves unto itself, and Lessee assigns to Lessor, all right to
damages accruing on account of any taking or condemnation of any part of the
Premises, or by reason of any act of any public or quasi-public authority
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for which damages are payable. Lessee agrees to execute such instruments of
assignment as may be required by Lessor, to join with Lessor in any petition
for the recovery of damages, if requested by Lessor, and to turn over to
Lessor any such damages that may be recovered in any such proceedings.
Lessor does not reserve to itself, and Lessee does not assign to Lessor, any
damages payable for trade fixtures installed by Lessee at its cost and
expense and which are not part of the realty nor any damages payable to
Lessee for loss of business opportunity related to the Premises or Lessee's
leasehold estate therein.
18. DEPOSITS AND ADVANCES.
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Any funds paid by Lessee to Lessor as a deposit or advance pursuant to
the terms of this Lease, or any exhibit, addendum, or modification thereto,
may be commingled with other funds of Lessor and need not be placed in
trust, deposited in escrow, or otherwise held in a segregated account. In
addition, if any sum or sums of money shall become payable by Lessee to
Lessor pursuant to the terms of this Lease, or any exhibit, addendum, or
modification hereto, or by any law, ordinance, or regulation affecting this
Lease, Lessor shall have the right to apply such deposits or advances
theretofore made by Lessee against such sums due by Lessee to Lessor.
19. NOTICES.
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Unless otherwise specifically provided herein, all notices required or
contemplated by this Lease shall be in writing and shall be delivered in
person or by United States Certified Mail, Return Receipt Requested,
addressed to the party to whom such notice is directed at the address set
forth in the first paragraph of this Lease. By giving at least two (2) days
prior written notice to the other party, either party may change its address
for notices hereunder.
20. BROKERAGE.
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Lessee and Lessor acknowledge that it has not dealt, consulted, or
negotiated with any real estate broker, agent, or salesperson. Each party
hereby agrees to indemnify and hold harmless the other from and against any
and all loss and liability resulting from or arising out of any claim that
the other party has dealt or negotiated with any real estate broker,
salesperson, or agent, in connection with the transaction which is the
subject of this Lease other than Xxxxxxxxx Properties (Landlord's Agent) &
Xxxxxxxx, Xxxxxxx & Xxxxxxxxx (Tenant's Agent). All commissions to be split
50%/50%.
21. ENTIRE AGREEMENT.
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This Lease sets forth the entire understanding between Lessor and
Lessee, and shall not be changed, modified, or amended except by an
instrument in writing signed by the party against whom the enforcement of
any such change, modification, or amendment is sought. The covenants and
agreements herein contained shall bind, and the benefit and advantages
hereof shall inure to, the respective heirs, legal representatives,
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successors, and assigns of Lessor and Lessee. Whenever used, the singular
number shall include the plural and the plural the singular, and the use of
any gender shall include all genders. The headings set forth in this Lease
are for ease of reference only, and shall not be interpreted to modify or
limit the provisions hereof. This Lease shall be governed by and construed
in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, Lessor and Lessee have caused this lease to be
executed the day and year first above written.
LESSOR:
Signed, sealed, and delivered XXXXXXX PARTNERSHIP II, LTD.
in the presence of: A Florida Limited partnership
By: INVICTUS INCORPORATED
----------------------------- A Florida Corporation, the General Partner
/s/ Xxxxx X. Xxxx By: /s/ Xxx X. Xxxxxxxx, Xx.
----------------------------- --------------------------------------
(As to Lessor) Xxx X. Xxxxxxxx, Xx., President
LESSEE:
ACCESS POWER, INC.
A Florida corporation
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By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Its President
July 17, 1997
/s/ Xxx Xxxxxxx
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(As to Lessee)
EXHIBITS
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Exhibit A - Plan of Building with Premises
Exhibit B - Base Operating Costs
Exhibit C - Landlord and Tenant Improvements
Exhibit D - Annual/Monthly Rent Schedule
Exhibit E - Additional Space