Exhibit 10.4
LEASE AGREEMENT
FOR
Liquidgolf.com
Corporation
THIS LEASE, made as of this 2nd day
of May, 2002, by and between Victoria Plaza, Inc. and whose
principal address for purposes hereunder is 2113 Venetian Way,
Winter Park, FL 32789 (“LESSOR”), and Liquidgolf.com
Corporation , whose principal address is:
4185 W. Lake Mary Blvd Suite
#131
Lake Mary, FL 32746
LESSEE hereby leases from LESSOR
that certain space identified as Unit Number 20 (the
“Premises”), containing approximately 4,000 square feet
of leasable area, having an address listed as 1017 W. Orange
Blossom Trail, Apopka, Florida 32712, The Premises does not include
any space above the interior surface of the ceiling, nor any part
of the exterior walls of the building in which the Premises are
located, nor the walks or Common Areas, as the latter is defined
herein.
LESSEE covenants, as a material part
of the consideration for this LEASE, to keep and perform each and
all of the terms, covenants and conditions herein set
forth.
|
2.
|
LEASE TERM
AND COMMENCEMENT DATE
|
The term of this LEASE (the
“LEASE Term”) shall commence on May 02, 2002 (the
“Commencement Date”). LESSEE shall provide written
acknowledgment of the LEASE commencement and expiration dates to
LESSOR prior to LESSEE’s possession of the Premises. LESSEE
shall continuously operate its business in the entire Premises, as
required by this LEASE, during the entire LEASE term. See
Addendum.
|
3.
|
ACCEPTANCE
OF PREMISES
|
LESSEE acknowledges it has fully
inspected and accepts the Premises in its present “as
is” condition. The demising walls within the premise are to
code per the City of Apopka and Orange County for a general retail
use store.
In the event LESSEE shall fail to
open for business, fully fixtured, stocked and staffed within sixty
(60) days following the Commencement Date, LESSOR shall have, in
addition to any and all remedies provided herein, the sole option
to terminate this LEASE.
Subject to LESSEE observing and
performing all of the covenants, conditions and provisions required
of LESSEE herein, LESSEE should have quiet possession of the
Premises during the LEASE term.
This LEASE shall become a binding
and enforceable agreement upon the date executed by LESSOR and
LESSEE (the “Effective Date”).
LESSEE shall use and occupy the
Premises for a retail golf store and golf internet service
only and shall neither use nor occupy the Premises for any other
purposes, LESSEE shall not interfere with nor violate the use
rights of nor conduct any activity, which may injure or annoy other
lessees within the Shopping Center nor use or occupy the Premises
in violation of any law, ordinance, government regulation or
directive.
|
Lessee Initials
|
|
/s/ ADW
/
|
LESSEE shall pay to LESSOR, at the
office of LESSOR, without notice, demand, deduction or setoff
whatsoever, in lawful United States currency, the following rentals
as Base Rent, together with any sales, use or other taxes assessed
thereon, on or before the first day of each calendar month during
the LEASE Term: See Addendum.
|
Period
|
|
Cam
|
|
Annual
Base Rent
|
|
State Sales
Tax @ 6 %
|
|
Total Annual
Base Rent
|
|
From: May 02, 2002
To: July 31,
2002
|
|
|
|
$
|
0.00
|
|
$
|
0.00
|
|
$
|
0.00
|
|
|
|
|
|
|
|
From: August 01, 2002
To: July 31,
2003
|
|
.90
|
|
$
|
8.90
|
|
$
|
0.53
|
|
$
|
9.43
|
|
|
|
|
|
|
|
From: August 01, 2003
To: July 31,
2004
|
|
.95
|
|
$
|
9.35
|
|
$
|
0.56
|
|
$
|
9.91
|
|
|
|
|
|
|
|
From: August 01, 2004
To: July 31,
2005
|
|
.99
|
|
$
|
9.82
|
|
$
|
0.59
|
|
$
|
10.41
|
|
|
|
|
|
|
|
From; August 01, 2005
To: July 31,
2006
|
|
1.04
|
|
$
|
10.31
|
|
$
|
0.62
|
|
$
|
10.93
|
|
|
|
|
|
|
|
From: August 01, 2006
To: July 31,
2007
|
|
1.08
|
|
$
|
10.83
|
|
$
|
0.65
|
|
$
|
11.48
|
Unless provided for otherwise under separate
written agreement between the parties, the first scheduled payment
of Base Rent and Additional Rent, as the latter is herein defined,
shall be paid by LESSEE on or before September 01, 2002.
Payments of Base Rent and Additional
Rent not received by the fifth (5th) working days of the month
shall be subject to an administrative charge of 10%. In the event
Base Rent and Additional Rent have not been received by the
fifteenth (15th) day of the month, LESSEE’S account shall be
transferred to an attorney for collection, and in addition to the
costs and charges described above, LESSEE shall also be responsible
for the payment of all associated legal expenses incurred
therefrom. Should a check from LESSEE be dishonored or returned by
the bank for any reason, LESSOR shall be entitled to apply, in
addition to the above assessments, a service charge of fifty
dollars ($50) for each such occurrence.
It is the intent for the Base Rent
and all sales or use taxes imposed thereon payable to LESSOR to be
absolutely net of all annual expenses associated with the operation
of the Shopping Center. Therefore, in addition to Base Rent and
Percentage Rent, LESSEE shall pay, as Additional Rent, its Pro Rata
Share (as herein defined), plus any sales or use taxes assessed
thereon, of the following:
(a) TAXES: Representing the amount of all real
and personal property taxes or assessments, including without
limitation: sanitary taxes, solid waste fees, or special
assessments, and all costs and expenses incurred by LESSOR in
contesting the same, which are levied, imposed or assessed upon the
Shopping Center.
(b) INSURANCE: Representing the cost of all
fire, extended coverage, liability, workmen’s compensation
and other insurance coverage carried by LESSOR on the Shopping
Center. If LESSEE’S approved use or occupancy of the Premises
shall cause any increase in premiums for insurance coverage of the
Shopping Center, LESSEE shall be responsible for payment of the
entire premium increase.
LESSEE’S Pro Rata Share shall be
determined by dividing the approximate square footage of the
Premises by the approximate square footage of the total leasable
area of the Shopping Center. If any lessees of the Shopping Center
directly pay Taxes, Insurance, or Common Area Maintenance charges
to any taxing authority, insurance carrier, utility provider, or
service contractor, the square footage of those lessees shall be
excluded from the total leasable area of the Shopping Center in
computing LESSEE’S Pro Rata Share of those items.
|
Lessee Initials
|
|
/s/ ADW
/
|
|
10.
|
PAYMENT OF
ADDITIONAL RENT
|
LESSEE shall pay LESSOR, together
with Base Rent, monthly installments of Additional Rent on the
first day of each calendar month of the term in an amount estimated
by LESSOR as provided herein, LESSOR shall endeavor to deliver to
LESSEE a statement of the actual Additional Rent payable by LESSEE
within 30 days of the end of each calendar year. In the event
LESSOR has underestimated the amount of the Additional Rent payable
be LESSEE during the term it shall be payable in full 10 days from
issuance of statement to LESSEE. LESSOR may deduct such sums from
the LESSEE’S Security Deposit prior to return of same to
LESSEE but such deduction shall not remove LESSEE’S
obligation to pay it’s Pro Rata share of actual Additional
Rent.
If the first day of the LEASE
commences on any day other than the first day of a month, or if
this LEASE ends on any day other than the last day of a month, any
payment due LESSOR by reason of any Base Rent or Additional Rent
shall be justly and fairly prorated.
|
12.
|
APPLICATION
OF PAYMENTS FROM LESSEE
|
LESSOR shall apply payments from
LESSEE in the following order: First, toward interest charges
accrued against LESSEE’S account; Second, toward
administrative fees, late fees, service charges or legal expenses
assessed against LESSEE’S account; Third, toward
LESSOR’S reimbursable expenses, and then Fourth, toward Base
Rent.
LESSEE, concurrently with its
execution of this LEASE, has remitted to, deposited with, LESSOR, a
Security Deposit in the amount of $3,356.67 as a partial
security for its full and faithful performance of this LEASE and
will submit ($3,356.67) for August’s rent. In addition,
the LESSEE shall submit and additional $10,000 to be paid in three
payments of $3,333.33 due the first day of May, June, and July. The
total security deposit shall be $13,356.67. If LESSEE Defaults with
respect to the payment of Base Rent, Percentage Rent or Additional
Rent due under this LEASE, LESSOR, in its sole discretion, may
elect to use, apply or retain all, or any part of the Security
Deposit for the payment of any moneys due LESSOR, and LESSEE shall,
on demand, restore the Security Deposit to its full amount. LESSOR
shall not be required to keep the Security Deposit separate from
its general funds and LESSEE shall not be entitled to interest on
such deposit. If LESSEE fully performs each provision of this
LEASE, the Security Deposit shall be returned to LESSEE within
thirty (30) days following LEASE expiration and LESSEE’S
vacating the Premises. See Addendum.
|
14.
|
CONTRACTUAL
SECURITY INTEREST
|
In addition to any security or lien
interest arising out of operation of law or statute, LESSEE grants
LESSOR a valid Security Interest upon all of LESSEE’S
equipment, fixtures, furniture, improvements and any other personal
property presently in or which may hereafter be situated within the
Premises, and all proceeds from sale therefrom.
The use and occupancy by LESSEE of
the Premises shall include the use in common with others entitled
to the use of the common areas, employee parking areas, service
roads, loading facilities, sidewalks and customer parking areas
located from time to time within the Shopping Center (collectively
referred to as the “Common Areas”) provided however,
the use of the Common Areas by LESSEE shall be subject at all times
to the regulations adopted therefor by LESSOR.
|
16.
|
IMPROVEMENTS
AND ALTERATIONS OF SHOPPING CENTER BY LESSOR
|
LESSOR may increase, reduce or
change the number, dimensions or location of the walks, buildings
and parking areas in any manner whatsoever LESSOR shall deem
proper, and LESSOR reserves the right to make alterations or
additions to the building in which the Premises are located, and to
add buildings to the Shopping Center.
|
Lessee Initials
|
|
/s/ ADW
/
|
|
18.
|
IMPROVEMENTS
AND ALTERATIONS OF PREMISES BY LESSEE
|
LESSEE, upon obtaining the written
consent of LESSOR, which consent may not be arbitrarily withheld,
may make improvements or alterations to the Premises as LESSEE may
from time to time deem necessary or desirable, provided however,
LESSEE shall not have the right to make any improvements or
alterations that affect the structure, or outward appearance of the
Premises or the Shopping Center. LESSEE shall submit to LESSOR
complete plans and specifications for such work at the time
LESSOR’S approval for same is requested. Any improvements or
alterations made to the Premises shall be in compliance with all
insurance requirements and regulations and ordinances of
governmental authorities, and shall, upon the expiration or sooner
termination of this LEASE, become the property of LESSOR provided
however, LESSOR may require LESSEE, at LESSEE’S sole cost and
expense, to remove any such improvements or alterations and to
repair any damages to the Premises caused by such removal.
Furthermore, in the event LESSEE makes any improvements or
alterations to the Premises, LESSEE shall cause all of
LESSEE’S construction debris to be removed from the Premises
and be disposed of outside the boundaries of the Shopping Center.
The construction of any improvements shall be undertaken and
maintained in a neat and orderly condition at all times with
construction materials and equipment, if any, stored so as to be
screened from view to the greatest extent possible.
The interest of LESSOR in the
Premises and the Shopping Center is not subject to liens for
improvements or alterations made by LESSEE. LESSEE shall comply
with the Mechanic’s Lien Law of the State of Florida as set
forth in Florida Statutes, Chapter 713. LESSEE will not create, nor
permit to be created, nor allow to remain as a result of any action
or work done or contracted for by LESSEE, any lien, encumbrance or
charge levied on account of any imposition, or any
mechanic’s, laborer’s or materialman’s lien which
might be, or become a lien, encumbrance or charge upon the Premises
or the Shopping Center. Any mechanic’s, laborer’s or
materialman’s lien shall be discharged in accordance with the
following:
If any mechanic’s,
laborer’s or materialman’s lien shall at any time be
filed against the Premises, or the Shopping Center, as a result of
any action or work done on behalf of, or contracted for by LESSEE,
LESSEE, within fifteen (15) days after notice of the filing
thereof, shall cause it to be discharged of record by payment,
deposit, bond, or order of a court of competent jurisdiction. If
LESSEE shall fail to cause such lien to be so discharged within the
period aforesaid, then in addition to any other right or remedy
available to LESSOR, LESSOR may, but shall not be obligated to,
discharge such lien either by paying the amount claimed to be due
or by transferring same to security, and in any such event, LESSOR
shall be entitled, if LESSOR so elects, to compel the prosecution
of any action for the foreclosure of such lien by the lienor and to
pay the amount of any judgment in favor of the lienor with
interest, costs and allowances. Any amount so paid by LESSOR, and
all costs, expenses, and fees, including without limitation
attorneys’ fees incurred by LESSOR in connection with any
mechanic’s, laborer’s or materialman’s lien,
whether or not the same has been discharged of record, together
with interest thereon at one and one-half percent (1+1/2%) per
month from the respective dates of LESSOR’s making of the
payments and incurring of the costs and expenses, shall constitute
Additional Rent payable by LESSEE to LESSOR upon demand.
Nothing contained in this LEASE
shall be deemed or construed in any way as constituting the consent
or request of LESSOR to any contractor, subcontractor, laborer or
materialman for the performance of any labor, or the furnishing of
any materials, for any alteration, addition, improvement or repair
to the Premises or the Shopping Center, or as giving LESSEE any
right, power or authority to contract for or permit the rendering
of any services, or the furnishing of any materials that would give
rise to the filing of any lien against the Premises, or the
Shopping Center, nor to subject LESSOR’S estate in the
Premises or the Shopping Center to liability under the
Mechanic’s Lien Law of the State of Florida in any
way.
LESSOR agrees to keep and maintain
in good order and repair the roof, and the structural components of
the exterior walls (exclusive of all signs, doors, windows and
glass, including plate glass) of the Premises. If any such
maintenance and repairs are caused in part or in whole by the act,
neglect, fault or omission by LESSEE, its agents, servants, or
employees, or by breaking and entering, LESSEE shall pay to LESSOR
the actual cost of such maintenance and repairs. LESSEE shall at
once report in writing to LESSOR any known
|
Lessee Initials
|
|
/s/ ADW
/
|
defective condition which LESSOR is required to
repair pursuant to this Paragraph and LESSEE’S failure to
report to LESSOR any such condition or defect shall make LESSEE
responsible to LESSOR for any liabilities, costs, expenses, and
attorneys’ fees incurred by LESSOR as a result of such
defect. LESSOR shall not be liable for failure to make such repairs
or to perform any maintenance unless such failure shall persist for
a period in excess of sixty (60) days following written notice to
LESSOR of the need for such repair or maintenance. Except as herein
provided regarding casualty loss, there shall be no abatement of
rent, and no liability of LESSOR by reason of any injury to or
interference with LESSEE’S business arising from the making
of any repairs, alterations or improvements in or to any portion of
the Shopping Center or the Premises, or in or to fixtures and
equipment therein. LESSEE waives the right to make repairs at
LESSOR’s expense under any law, statute or ordinance now or
hereafter in effect.
LESSEE shall at all times, and at
its own cost and expense, be responsible for the maintenance and
repair of all portions of the Premises not maintained by LESSOR,
including all heating and air-conditioning equipment (including
compressors, fans and ventilation ducts), and the water, sewer,
electrical and fire sprinkler systems specifically serving the
Premises. The LESSEE shall have a HVAC service contract which will
provide for an annual inspection and monthly filter changes, LESSEE
shall provide the LESSOR with a copy of the contract and/or
inspection reports upon written request. To the extent any
contractor warranties on said equipment or system are in effect at
the time of LESSEE’s occupancy and use of the Premises,
LESSOR shall assign or otherwise make available to LESSEE such
warranties for LESSEE’S use. In the event the equipment or
building contractor’s warranty on any of the referenced
equipment or system has expired, LESSOR shall be responsible for
the repair and maintenance of this item during LESSEE’S first
ninety (90) day occupancy period of the Premises, LESSEE shall
return the Premises to LESSOR at the termination of this LEASE in
as good condition and repair as when first received, reasonable
wear and tear excepted. Following the termination of this LEASE,
and prior to return of LESSEE’s security deposit, LESSEE
shall furnish LESSOR with an inspection report from an HVAC
maintenance company acceptable to LESSOR that states the
Premise’s heating, ventilation and air conditioning systems
are operating properly and have not suffered from neglect. Failure
by LESSEE to provide LESSOR with an HVAC inspection report, or for
the report to state that the Premise’s heating, ventilation
and air conditioning systems have been damaged as a result of
neglect, shall result in LESSOR applying part or all of
LESSEE’s security deposit to obtain the inspection report or
repair or replace any damaged equipment. All damage or injury to
the Shopping Center, Premises, or the Common Areas caused by the
act or negligence of LESSEE, its agents, employees, or licensees
shall be promptly repaired by LESSEE at its sole cost and expense
and to the reasonable satisfaction of LESSOR. LESSOR may make such
repairs which are not promptly made by LESSEE and charge LESSEE for
the cost thereof as Additional Rent.
LESSEE shall keep the Premises
clean, both inside and outside, and will remove all refuse from the
Premises in accordance with rules and regulations established by
LESSOR for same. LESSEE shall not burn any materials or rubbish of
any description upon the Premises or Common Areas. The LESSEE
shall, at its expense, contract with a solid waste disposal company
to provide a dumpster and. pick-up services as needed by the
LESSEE. The dumpster shall be located in a spot designated by the
LESSOR.
LESSEE shall neither encumber nor
obstruct the sidewalks adjoining the Premises nor allow the same to
be obstructed or encumbered in any manner. LESSEE shall not place,
nor cause to be placed, any merchandise, signs, vending machines or
anything else on the sidewalk or exterior of the Premises without
the prior written consent of LESSOR
LESSEE shall pay the cost of water
and sewer, gas, electricity, fuel, light, heat, power, telephone,
cable, and all other utilities furnished to the Premises, or the
Shopping Center, and used by LESSEE, whether such utility costs are
determined by separate metering or are billed by LESSOR. LESSEE
shall not install any equipment nor use the Premises in a manner
that will exceed or overload the capacity of any utility
facilities. If LESSEE’S use of the
|
Lessee Initials
|
|
/s/ ADW
/
|
Premises shall require additional utility
facilities , the same shall be installed only after
obtaining LESSOR’s written approval, and such cost shall be
at LESSEE’S expense and in accordance with plans and
specifications approved in writing by LESSOR. If LESSEE’S use
or occupancy of the Premises results in an increase to LESSOR of
any utility expense, or connection or user fees, or charges for
increased usage or capacity, or assessments of any kind whatsoever,
LESSEE shall pay the entire amount thereof within thirty (30) days
of LESSOR’S written statement for same. In no event shall
LESSOR be liable for any interruption or failure in the supply of
utilities to the Premises.
|
24.
|
PERSONAL
PROPERTY AND LEASEHOLD IMPROVEMENT TAXES
|
LESSEE shall pay all real property
taxes separately assessed against any permanently constructed
improvements to the Premises made by LESSEE, and all personal
property taxes assessed against or levied upon LESSEE’s
fixtures, signs, furnishings, equipment, and all other
pe