EXHIBIT 10.3 - Lease Agreement
LEASE AGREEMENT
The Lessor, UPCHURCH-SUTTON, AGREES TO LEASE TO Lessee, AMERITALKS.COM jointly
and severally and Lessee agrees to lease from the Lessor, the property and all
improvements in accordance and pursuant to the covenants, terms, conditions and
provisions as follows:
WITNESSETH:
1. PREMISES: Office space consisting of the second floor of approximately 4500
square feet, located at 1001 Kings Avenue, County of Duval, within the
building known as The King's Building.
2. TERM: The term of this lease will commence on the date of April 1, 2000 and
will continue through March 31, 2005, a term of 60 months.
3. RENT: Lessee agrees to pay the sum of 13.40 per sq. ft. a year escalating
@ .50 per sq. ft. per year for 4500 sq. ft., for the term of this Lease,
payable in the equal monthly installments of
YEAR ONE: $5025 + sales tax(6/1/2000 through 3/31/2001)**
YEAR TWO $5213 + sales tax (4/1/2001 through 3/31/2002)
YEAR THREE: $5400 + sales tax(4/1/2002 through 3/31/2003)
YEAR FOUR: $5588 + sales tax(4/1/2003 through 3/31/2004)
YEAR FIVE: $5775 + sales tax(4/1/2004 through 3/31/2005)
Payable in advance on or before the first day of each month, plus any additional
charges set forth in this Lease, plus applicable Florida Sales and Use Tax.
The Lessee, as long as not in default under this lease, has a 2-term renewal
option up to 90 days of lease expiration date in writing to lessor; rental rate
to be negotiated. The Lessee has first right of refusal to purchase The King's
Building property being "for sale". The option must accompany an acceptable
purchase agreement within 10 days of notification.
4. PAYMENT OF RENT: The Lease shall be for the term and the total rent payable
in periodic installments as set forth above. Each installment of rent shall
be paid in advance on the first day of each month specified, commencing on
April 1, 2000. Lessor and Lessee agree to the pre-payment of 2 months rent
due at lease signing. **(April though June 2000). The rent shall be paid to
UPCHURCH-SUTTON, 1001-3 Kings Ave. Jacksonville, A. 32207, or at other
address as Lessor may specify. Rent payments received after the 5th day of
each month shall be subject to an administrative charge of 2.5% of the late
rent. In the event that rent is received after the 1 0th day of the month
Lessee shall pay an additional late charge of 2.5% of the late rent.
Moreover, in the event that any check, bank draft, or negotiable instrument
given for any payment hereunder, shall be dishonored for any reason, Lessor
shall be entitled in addition to any other remedy available, to make an
extra administrative charge of $50.00.
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5. SECURITY DEPOSIT: Simultaneously, with the execution of this Lease, Lessee
has deposited the sum of $6000, which shall be retained by Lessor as
security for the faithful performance and observance by Lessee of the above
covenants, terms, conditions and provisions of the Lease. The said Security
Deposit shall be refunded to Lessee at the conclusion of this Lease
provided all of the above terms, conditions and provisions have been met.
Upon Event of Default, defined as described by term and conditions within
this lease, not cured within 3 days, in addition to all other remedies
available, Lessor may apply the whole or any part of such sum for payment
of any rent or other charges, or any expense incurred by Lessor by reason
of I lessee's default or Lessor may retain any or all of such sum in
liquidation of any or all of the damages suffered by lessor by reason of
such Event of Default, including but not limited to, any damages or
deficiency in the reletting of the Premises, whether such damages or
deficiency occurred before or after summary proceedings or other re-entry
by Lessor. Such sum shall not bear interest while being held by Lessor
hereunder. In the event of a sale of all or a part of the canter, Lessor
shall thereupon be released by Lessee from all liability for the return of
such Security Deposit; the provisions hereof shall apply to every other
subsequent transfer or assignment made of the Security Deposit to a new
Lessor.
6. ACCEPTANCE: The Lessee agrees that it is accepting the Property in an "as
is" condition, any exceptions are described an Exhibit "B".
7. SIGNS: Lessee will make no unlawful, Improper or offensive use of the
Property. Any signs placed on the building by the Lessee shall be mode with
the Lessor's prior written consent. A diagram of any signs to be placed on
the Property Is required to be submitted to the Lessor For approval, which
will not be unreasonably withheld. NO portable sign or advertisement
material shall be placed in the parking area or on the perimeter areas of
the Property. The Lessee will have the right, at it's own expense to place
panels or a panel on one-half of the present freestanding sign.
8. PROPERTY: The parking area is for customer use only. Any vehicles parked
overnight are subject to removal at owner's expense, No semi-trailers or
trailer parking except delivery and unloading purposes. Upon termination of
the Lease, Lessee shall deliver up the Property In proper operating
condition and In a condition or repair comparable to the condition at the
time of execution of this Lease, except For ordinary wear and tear, and in
a broom-clean condition and with all glass in all windows and doors intact.
9. ORDINANCES / REGULATIONS: Lessee covenants to comply with and execute all
laws, regulations and ordinances of the lawfully constituted governmental
authorities of the United States of America, or State, County, District or
Subdivision in which the Property is located; concerning and affecting the
use of Property at the Lessee's expense including those of utilities
serving the Property.
10. ALTERATIONS: The Lessee shall make no alterations, additions or structural
change on or to the Property without the prior written consent of Lessor.
The Lessor will not deny any reasonable request. All installations,
repairs, improvements, replacements and alterations to the premises made by
Lessee shall, upon being installed, become a part of the building and the
property of the Lessor.
11. UTILITIES AND COMMON AREA MAINTENANCE: Lessee shall pay all costs and
expenses For gas, electricity, heat and any other utilities furnished to or
used in connection with it's leased premise promptly as each thereof shall
become due and payable.
12. QUIET ENJOYMENT: The Lessee, upon payment of the rent herein reserved and
upon the performance of all terms of this Lease, shall at all times during
the Lease term peaceably and quietly enjoy the leased premises without any
disturbance From the Lessor.
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13. LESSOR'S RIGHT OF ENTRY: Lessor or Lessor's agents shall have the right at
any reasonable time to enter the Property for the purpose of inspection or
for the purpose of making or causing to be made any repairs or otherwise to
protect Lessor's interests, but the right of Lessor to enter, repair or do
anything else to protect Lessor's interest, or the exercise or failure to
exercise hereof, shall In no way diminish Lessee's obligations under this
lease or enlarge Lessor's obligations under this Lease or affect any right
of Lessor or create any duty or liability by Lessor to Lessee or any third
party. Lessor shall have the right to display on the outside of the
Property "For Rent" or "For Sale" signs provided however, that no "For
Rent" sign be placed In the leased premises prior to ninety (90) days
before the expiration or termination of this Lease.
14. REMEDIES IN DEFAULT: In the event Lessee shall, (a) fail to make any rental
or other payment due hereunder within ten (10) days after due date, or (b)
be adjudged bankrupt, or (c) make an assignment for the benefit of
creditors, or (d) have Lessee's leasehold estate taken an execution against
Lessee, or (e) abandon the Property during the term hereof or (f) breach or
Fail to perform any agreement herein other than the agreement to pay rent
and shall Fail to cure such breach or perform such agreements within (3)
three days after written notice From the Lessor, then the Lessor, in either
such event, shall have the option to:
(1) Terminate this Lease, resume possession of the Property For Lessor's
own account and recover immediately from the Lessee the difference
between the rent provided for in this Lease and the fair value of the
Property for the remainder of the Lease term, reduced to present
worth, together with any other damages occasioned by or resulting from
the abandonment or a breach or a monetary default or default other
then a default in payment of rent.
(2) If Lessee defaults in performance of any obligations hereunder and
such default is not corrected as provided in this Lease, Lessor may
perform the obligation and the Lessee shall pay all costs and expenses
of Lessor to perform Lessee's obligation. The remedies provided in
this paragraph shall not be exclusive and in addition thereto the
Lessor may pursue such other remedies as are provided by law in the
event of any breach default or abandonment by Lessee. In any event and
irrespective of any option exercised, Lessee agrees to pay and the
Lessor shall be entitled to recover all costs and expenses incurred by
the Lessor Including reasonable attorney's Fees, in connection with
collection of rental or damages or enforcing other rights of the
Lessor in the event of any breach or fault or abandonment by Lessee,
Irrespective of whether or not Lessor elects to terminate this Lease
by reason of such breach, default or abandonment. The Lessee hereby
expressly waives any and all rights of redemption, if any granted by
or under any present or Future law in the event the Lessee shall be
evicted or dispossessed for any cause, or, in the event the Lessor
shall obtain possession of the premises by virtue of the provisions of
this Lease or otherwise.
15. PERFORMANCE: The failure of Lessor to Insist, In any one or more instances,
upon a strict performance of any of the covenants or agreements in this
Lease, or to exercise any option herein contained shall not be construed me
a waiver or a relinquishment for the future of such covenant, or option,
but the some shall continue and remain in full force and effect. The
receipt by lessor rent, with knowledge of the breach of any covenant or
agreement thereof shall not be deemed a waiver of such breach end no waiver
by Lessor if any provision hereof shall be deemed to have been made unless
expressed in writing and signed by Lessor.
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16. CONDEMNATION. Lessor reserves to itself and Lessee assigns to Lessor, all
rights to damages occurring on account of any taking or condemnation of any
part of the Property hereby leased, or by reason of any act of any public
or quasi-public authority 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 proceeding. Lessor does not reserve to itself and
Lessee does not assign to Lessor any damages payable for trade fixtures
Installed by Lessor at Lessee's own cost and expense which are not part of
the Property. In the event of a condemnation or taking of the Property
hereby leased, Lessor may terminate this Lease upon thirty (30) days
written notice to Lessee; in the event of a condemnation or taking In which
more than twenty-Five (25%) percent of the property is taken, either party
may elect to terminate this Lease upon thirty (30) days prior to written
notice to the other party.
17. SUBORDINATION. All rights and interests or Lessee hereunder are and shall
be and remain subject, subordinate and inferior to all bona Fide mortgages
heretofore or hereafter given and encumbering the Property, or any, part
thereof, and shall likewise be subordinate and inferior to all renewals,
modifications, consolidations, replacements and extensions of any such
mortgage shall at all times be and remain prior and superior to all rights
and interests of Lessee. The provisions of this paragraph shall operate as
a subordination agreement with respect to all such mortgages and all
renewals, modifications, consolidations, replacements and extensions
thereof. IF the holder of any such mortgage or any person, firm or
corporation agreeing to make a loan secured by a mortgage on the property
shall require confirmation of' any subordination for which provision in
herein made or separate subordination agreement with respect to any
mortgage transaction, Lessee shall execute such confirmation or
subordination agreement in form as required by such mortgage holder or such
person, firm or corporation agreeing to make a loan secured by a mortgage
on the Property, and the execution of same shall not diminish or affect the
liability of the Lessee hereunder or of any party responsible for or
guaranteeing the obligations of said Lessee under this Lease.
18. NOTICES. Any notices demand required or permitted by law, or any provision
of this Lease, shall be in writing, and It the same is to be served upon
the Lessor, may be personally delivered to Lessor, or may be deposited in
the United States mail, registered or certified, with return receipt
requested, postage prepaid, and addressed to Lessor at address net forth by
Lessor.
19. INDEMNIFICATION. Lessee agrees that It will make full and prompt payment
of, all sums necessary to pay for the cost of all repairs, alterations,
Improvements, changes or other work done by the Lessee to the leased
building or premises and further agrees to indemnify and save harmless the
Lessor from and against any and all costs and liabilities incurred by
Lessee and against any and all mechanics', material man's or laborers'
liens arising out of or from such work or the coat hereof which may be
asserted, claimed or charged against the leased building and premise.
Notwithstanding anything appearing In this Lease, the Interest of the
Lessor In the leased premises shall not be subject to liens for
Improvements or work made or done by the Lessee whether or not same shall
be made or done in accordance with an agreement between Lessor and Lessee,
and It In agreed that In no event shall the Lessor or the interest of the
Lessor In any of the Leased premises be liable for or subjected to any
mechanics, material-man's, or laborer's liens for improvement or work done
or made by the Lessee and the Lease expressly prohibits the subjecting of
the interest of the Lessor in the leased premises to any liens for
improvements made by the Lessee or for which the Lessee is responsible for
payment under the terms of this Lease, and all persons dealing with Lessee
are put on notice of these provisions. In the event any notice or claim of
lien shall be asserted of record against the interest of the Lessor in the
leased Property, on account of or growing out of any improvement or work
made or done by the Lessee, or any person claiming by, through or under the
Lessee, or for improvement or work the cost of which is the responsibility
of the Lessee, then Lessee agrees to have such notice or claim of lien
cancelled and discharged of record as a claim against the interest of
Lessor in the lease premises; either by payment and satisfaction or by
removal by transfer to bond or deposit as permitted by law, within ten (10)
days after notice to Lessee by Lessor, and In the event Lessee fails to do
so Lessee shall be considered to be in default under this Lease with like
affect as if Lessee should have failed to pay a rental payment when due and
within any applicable grace period provided for payment of same.
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20. AGREEMENT. This Lease Agreement constitutes the entire agreement of the
parties and may not be modified except by written instrument signed by the
party against whom such modification is sought to be enforced. This
Agreement shall be binding upon the parties, the legal representatives,
successors and assigns and shall be construed and enforced pursuant to the
laws of the State of Florida. All terms herein shall mean and refer to the
singular or plural, the masculine or feminine and to natural persons and to
entities as required by the context.
21. ASSIGNMENT OR SUBLETTING. Lessee shall not mortgage, pledge, assign, or
otherwise encumber its interest in the Property or in this Lease nor shall
it permit any other person or entity to occupy any or all of the Property
without first obtaining Lessor's written consent thereto. Such consent will
not be unreasonably withheld but may be conditioned upon the receipt by the
Lessor of the following: (a) A recent financial statement of the proposed
assignee or subleases; (b) a statement of the nature of the business
intended to be conducted in the Property, the name of the officers and the
number of employees expected to be located at the Property; and (c) an
unequivocal assumption of liability by the assignee or subleases of the
Lease with the rental adjusted to reflect the then fair market rental value
of the Property; but, in no event shall the rent be decreased, provided,
however Lessor in its sole discretion shall be entitled to, and may require
Lessee to remain primarily liable under the Lease, and not as a surety or
guarantor subsequent to any such assignment. Lessor shall have thirty (30)
days from the receipt of items (a) through (c), in which to notify Lessee
of Lessor's acceptance or rejection of the offer to terminate. Assignment
and subletting shall include any transfers to Lessee's interest in this
Lease, whether voluntary or involuntary, including any lien upon Lessee's
or subleases or assignees, or any receiver or trustee with jurisdiction
over Lessee, or by a transfer by any persons or person controlling the
lessee on the date hereof of the control of Lessee to a person not
controlling Lessee on the date thereof.
22. HOLD HARMLESS. Lessee agrees to pay, and to protect, Indemnify and save
harmless Lessor from and against any and all liabilities, obligations,
losses, damages, costs, penalties, expenses (including all attorney's fees
and expenses of Lessee and of Lessor), causes of action, suits, claims,
demands or judgments of any nature whatsoever arising from (1) any accident
or injury to, or the death of, any person or damage to property on the
Lessor's premises, or upon immediately adjoining sidewalks, streets or
ways; (2) violation of any agreements or condition of this Lease and of the
contracts, agreements, restrictions, statutes, laws, ordinances or
regulations or other documents ( whether or not recorded) affecting the
property or any part thereof, or the ownership, occupancy or use thereof,
or (3) any tortuous act or omission on the part of Lessee or of any of its
agents, contractors, subleases, licensers, or invitees. In case or suit or
proceeding is brought against Lessor by reason of any occurrence herein
described, Lessee will at Its own expense defend such action, suit or
proceeding with council satisfactory to Lessor.
23. INSURANCE. Tenant agrees to maintain In full force and effect, at all times
during the term of this Lease, policies of insurance, affording the
Following coverage's: (a) comprehensive general liability for personal
injury or property damage In or about the premises resulting from the use,
occupation or operation of the Premises in an amount not less than
$300,000.00 of combined single limit (b) Fire and extended coverage,
vandalism and malicious mischief and, where applicable Lessee
stock-in-trade, fixtures, furniture, furnishings, trade equipment, signs,
and any other property owned by Lessee and kept on the premises, In amounts
not less then the full insurable value, i.e. actual replacement value of
such contents and personal property; (c) workman's compensation, as
required by Florida Statues. Except for the worker's compensation
insurance, all policies shall name Lessor, as additional insured and
provide that the interest of same shall not be affected by any negligence
or breach of any Lease or policy provisions by Lessor, Lessee, Mortgages,
sub lessee or occupant of the premises. Lessee shall furnish Lessor a
certificate of its insurance evidencing such insurance and providing that
the coverage thereby shall not be cancelled or terminated unless the
insurer first gives Lessor not less than thirty (30) days prior written
notice. Failure to provide such insurance coverage shall constitute an
event of default of this Lease, and notwithstanding any of the forgoing,
Lessee shall not do or permit to be done any act or thing which may result
In the suspension or cancellation of any insurance policy or for which the
insurance risk wouldn't be increased. In the event Lessee's activities
result in an increase in insurance premiums to any policy held by Lessor
for the property, Lessee shall reimburse Lessor for such increase. Tenant
shall provide such evidence of coverage prior to opening for business.
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24. OTHER. Lessee agrees to keep condition of the leased space in sanitary
standards acceptable to Lessor, and to adhere to any rules and regulations
submitted to Lessee by Lessor pertaining to the property.
25. HOLDING OVER. If the Lessee or any approved assignee or sub lessee, shall
continue to occupy the property after the termination of the Lease, without
the prior written consent of Lessor, such tenancy shall be a tenancy
sufferance. Any term at sufferance will be at a monthly rental twice that
of the last full month's rental. Acceptance by Lessor of any rental after
termination shall not constitute a renewal of the Lease nor consent to such
occupancy, nor shall it constitute a waiver of Lessor's right to re-entry
or any other right contained herein.
26. MAINTENANCE. Lessor shall guarantee on commencement date of this Lease,
proper operating condition of: plumbing lines and fixtures; lighting
Fixtures and wiring; air conditioning equipment. Lessor will also be
responsible during the term of this Lease for maintaining the structural
components, the exterior walls, doors and roof, unless Lessee's negligence
or fault thereto shall cause damage. Lessor will be responsible for
replacement of major components of AC unit. Lessee shall be responsible for
servicing and maintaining in proper operating condition, the interior of
the leased premises including all plumbing, mechanical systems, air
conditioning equipment, and lighting fixtures. And the Lessee agrees to
make repairs promptly for problems caused by Lessee's neglect, as they may
be needed and at Lessee's own expense. At the end of the Lessee term, or
termination, Lessee shall deliver up the property in clean and proper
operating condition except ordinary wear and tear. Lessee shall keep all
common areas such as sidewalks and back alley free of debris or objects
caused by the Lessee. Refuse to be deposited at curb for city pick up.
27. RESTRICTIONS: 1001 Kings Ave. Building parking not included with the
following exception; the Lessee has the option to rent up to seven
designated spaces at designated Kings Building Parking. The parking spaces
will be subject to the conditions and payment terms of this lease. Under
this lease period each space is $50 per month + any applicable tax with an
annual 10% increase for the lease term. Whenever Radisson or comparable
parking becomes available at a competitive rate either party may waive this
option.
ADDITIONAL PROVISIONS:
**Lessee agrees to pre-pay the first two months of rent. Lessor allows Lessee to
occupy 400 sq. ft. of office space rent-free until April 1, 2000. Referenced in
paragraph 3 & 4 page 1, Lessor grants pursuant to paragraph 21 page 5 consent
for subletting to Maige, Matthews & Co. P. A.
The lessor will provide per the attached build-out preliminary plans.
o Complete preparation and repair of floors;
o Cleaning and finishing interior perimeter walls to brick;
o Ceiling finishing with adequate lightning per plans;
o Repair & replace where needed HVAC vents and ductwork;
o Existing electric outlets repaired;
o Demolition of 3 walls;
o Wall construction per preliminary design finished & painted; 150'full
walls & 60' half walls;
o Provide & install new carpet at 28 oz. Nylon;
o 11 additional standard interior doors.
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Lessee will provide:
o Completed set of plans signed & sealed for permits with the approval
of the lessor within 7 days;
o Install, stain and provide the crown molding and base trim for the 2nd
floor build-out per Lessee's design;
o Increase expenses for any upgrades, changes or items not included in
Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this agreement this 28
day of February 2000.
Signed, sealed and delivered In the presence of:
/s/ Marc J. Krug LESSOR:
--------------------------
/s/ Robert L. Upchurch
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Robert L. Upchurch \President
UPCHURCH-SUTTON, Inc.
1001 Kings Ave., Jacksonville, FL 32207
LESSEE:
/s/ Marc J. Krug /s/ Timothy J. Murtaugh
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Timothy Murtaugh, CEO
AMERITALKS.COM\Ridethepipe.com
8129 W. Jose Circle, Jacksonville, FL 32217
Personal guarantee:
/s/ Timothy Murtaugh
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Timothy Murtaugh\President & CEO
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