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EXHIBIT 10.15
MEDICAL OFFICE SUB-LEASE
THIS SUB-LEASE made as of the this _____ day of _____________________,
19__ (the "Lease"), by and between ((CWMC_Name)), a ((State)) professional
corporation with offices at ((Address1)) (the "Lessee") and Complete Wellness
Centers, Inc., a Delaware corporation licensed to do business in the state of
((State)) (the Lessor").
W I T N E S S E T H:
WHEREAS the Lessor currently owns certain leasehold rights to office
space located at ((Address1)) (the "Premises or "Office") and
WHEREAS Lessee desires to let office space at the Premises in
connection with it's operation of a medical practice at the Premises; and
WHEREAS the Lessor desires to let such office space to the Lessee under
the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the parties hereto agree as
follows:
1. PREMISES. The Lessor hereby leases to Lessee and Lessee
hires from Lessor the Premises. Together with the Premises, Lessor hereby leases
to Lessee for the term hereof all fixtures, furnishings and furniture
appertaining thereto (but subject to any and all liens, financing statements,
conditional sales contracts, etc., and to the terms of any equipment leases
pertaining thereto). Further, Lessor agrees to provide to the Lessee the
management services, personnel, equipment and supplies (hereinafter called the
"CWC Services" described in the Management and Security Agreement of even date
herewith by and between Lessor as "Manager" and Lessee as "Medcorp" therein (the
"Management Agreement"), to which this Lease is annexed and made a part.
2. TERM. The term of this Lease shall be for a period to run
concurrent with the term of that certain Integrated Medical Center Management
and Security Agreement (the "Integrated Agreement") dated of even date herewith
by and among Lessor, ((CWMC_Name)) and (but in no event for a period of less
than one (1) year).
3. RENT. The rent to be paid by Lessee to Lessor for the
Premises during the term hereof shall be in the amount, and paid in the manner,
as follows:
a. From and as of the date hereof and until one year
from the date hereof (the "Anniversary Date"), the sum of ____________ dollars
($__________) per annum.
b. The parties hereto shall mutually agree upon a
revised rent on or before two months prior to the Anniversary Date of each Lease
year (the "Revision Date"). If the parties fail to reach an agreement with
regard to the revised rent before the Revision Date of any Lease year, then the
Lessor may, in its sole discretion, determine the revised rent by giving written
notice thereof to the Lessee on or before ten days prior to the Anniversary Date
of the Lease year. In the event that the Lessee is dissatisfied with such
revised rent, the Lessee's sole recourse shall be to notify the Lessor, within
ten days after receipt of notice of the revised rent, of the Lessee's intention
to terminate this Lease as of the sixtieth (60th) day from the date the notice
is sent. Failure to so notify the Lessor of its termination of this Lease shall
be deemed to be an acceptance by the Lessee of the revised rent, and the Lessee
shall thereupon be obligated to make timely payments of the revised rent to the
Lessor.
c. The rent shall be payable in monthly installments.
Payment of the rent shall be made by the Lessor, in its capacity as manager of
the Lessee's business pursuant to the Management Agreement, by drawing a check
or wire transfer or other bank transfer payable to the Lessor on the Lessee's
account maintained by the Management Company pursuant to Section 2b of the
Management Agreement.
d. The Lessor and Lessee agree that upon termination
or expiration of this Lease for any reason, the Lessor, as Manager, will
continue to collect as agent of the Lessee, (pursuant to Section 2b of the
Management Agreement) all of the Lessee's then outstanding accounts receivable
for professional and ancillary services rendered and will continue to be paid
from receipts therefrom any amounts outstanding from the Lessee pursuant to this
Lease and/or the Management Agreement until all such amounts then or
subsequently due the Lessor shall have been repaid in full.
4. TERMINATION This Lease may be terminated upon the happening
of any of the following events:
a. This Lease shall terminate automatically in the
event that any ground lease, over lease or other lease (underlying lease") by
which Lessor has an interest in the Premises is canceled, terminated or
otherwise expires. Lessor shall give written notice to Lessee of the
cancellation, termination or expiration of any underlying lease and shall
specify therein the date of termination, which shall be the same as the date of
termination of said underlying lease.
b. This Lease shall terminate automatically upon the
termination of the Integrated Agreement and/or Management Agreement for any
reason whatsoever.
c. This Lease shall terminate automatically at such
time as the Lessee does not qualify for any reason as a professional
corporation, including but not limited to the death or disqualification to
practice medicine of every shareholder. For these and all other purposes, the
determination of a physician's qualification to practice medicine vel non shall
be made by the Lessee and/or by the applicable governmental and professional
regulatory agencies, and the Lessor shall in no way make or contribute to such a
determination.
d. The Lessor may, at its sole option, immediately
terminate this Lease:
(1) in the event that the Lessee shall fail
to make any payment or perform any duty or obligation imposed on it by this
Lease or by the Management Agreement, or shall otherwise default under this
Lease or under the Management Agreement, or shall otherwise give rise to a right
of the Lessor to terminate the Management Agreement pursuant to the provisions
thereof, and such default or occurrence shall continue for a period of ten (10)
days after notice thereof has been given to the Lessor by the Lessor; or
(2) upon the occurrence of a "change in
control" of either the Lessor or of the Lessee; for these purposes, a "change of
control" of a corporation shall have been deemed to have occurred (a) upon the
merger or consolidation of said corporation with or into another corporation or
entity, and irrespective of whether said corporation is the surviving entity;
(b) upon the sale, transfer or other disposition of a significant portion of the
assets of the corporation; (c) if any person or group of persons becomes the
beneficial owner, directly or indirectly, of securities of the corporation
representing fifty percent (50%) or more of the then outstanding securities of
the corporation (whether by purchase or acquisition of such securities or by
agreement to act in concert with respect to such securities or otherwise); or
(d) if any person or entity owning or controlling more than fifty percent (50%)
of the outstanding securities of the corporation at any time ceases to own of
record or beneficially at least fifty percent (50%) of the then outstanding
securities of the corporation; or
(3) if the license to practice medicine of
any physician who is a member of or is associated with the Lessee is suspended
or revoked by any administrative agency of the State of ((State)) or a petition
is filed by any administrative agency of the State of State seeking to suspend
or revoke such license on any grounds, including but not limited to improper
medical practice or improper conduct by such physician, unless such physician
is immediately terminated
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from any association with the Lessee and the Premises; or
(4) if any physician who is a member of or
is associated with the Lessee is convicted of a felony, unless such physician is
immediately terminated from any association with the Lessee and with the
Premises; or
(5) upon the filing of a petition in
voluntary bankruptcy or an assignment for the benefit of creditors by the
Lessee, or upon other action taken or suffered, voluntarily or involuntarily,
under any Federal or State law for the benefit of insolvents by the Lessee,
except for the filing of a petition in involuntary bankruptcy against the
Lessee, with the dismissal thereof within thirty (30) days thereafter;
(6) If Lessee defaults in fulfilling any of
the covenants of this Lease including the covenants for the payment of rent or
additional rent; or if the demised Premises become vacant or deserted; or if the
demised Premises are damaged by reason of negligence or carelessness of Lessee,
its agents, employees or invitees; or if any execution or attachment shall be
issued against Lessee or any of Lessee's property whereupon the demised Premises
shall be taken or occupied by someone other than Lessee; or if Lessee shall make
default with respect to any other agreement between Lessor and Lessee; or if
Lessee shall fail to move into or take possession of the Premises within fifteen
(15) days after the commencement of the term of this Lease, of which fact Lessor
shall be the sole judge; then, in any one or more of such events, upon Lessor
serving a written ten (10) days' notice upon Lessee specifying the nature of
said default and upon the expiration of said ten (10) days, if Lessee shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within the said ten (10) day period, and shall not thereafter with
reasonable diligence and in good faith proceed to remedy or cure such default,
then Lessor may serve a written three (3) days notice of cancellation of this
Lease upon Lessee, and upon the expiration of said three (3) days, this Lease
and the term thereunder shall end and expire as fully and completely as if the
expiration of the three (3) day period were the day herein definitely fixed for
the end and expiration of this Lease and the term thereof and Lessee shall then
quit and surrender the demised Premises to Lessor but Lessee shall remain liable
as hereinafter provided; or
(7) if the notice provided for in Paragraph
4d(7) hereof shall have been given, and the term shall expire as aforesaid; then
and in such event Lessor may without notice, re-enter the demised Premises
either by force or otherwise, and dispossess Lessee by summary proceedings or
otherwise, and the legal representative of Lessee or other occupant of demised
Premises and remove their effects and hold the Premises as if this Lease had not
been made, and Lessee hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Lessee shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this Lease, Lessor may cancel and terminate such renewal or
extension agreement by written notice.
No failure or delay on the part of any party to
exercise its right of termination hereunder for any one or more causes shall be
considered to prejudice said party's right of termination for such or any other
subsequent cause. Termination or cancellation of this Lease for any reason
whatsoever shall in no way release any party from any payments, obligations or
liabilities arising prior to termination or arising from acts or failures to act
on or before the date of termination or otherwise due after termination pursuant
to the terms of either this Lease or the Management Agreement. Furthermore, no
termination of this Lease or of the Management Agreement shall in any way affect
the survival; of any right, duty, or obligation which is expressly stated
elsewhere in this Lease or in the Management Agreement to survive such
termination.
5. ASSIGNMENT\SUBLETTING. Lessee may not, without the prior
written consent of the Lessor, assign this Lease or any of the Lessee's interest
therein, directly or indirectly, in whole or in part; nor may Lessee underlet,
further sublet, or suffer or permit the Premises, or any part thereof, to be
used by others, without the prior written consent of Lessor in each instance.
For purposes of this paragraph 5, the term "assign" shall mean sell, assign,
mortgage, hypothecate, pledge, create a security interest in or lien upon,
encumber, give, place in trust, or otherwise voluntarily or involuntarily
transfer. Any assignment or subletting by Lessee in violation of this paragraph
shall be null and void and of no effect whatsoever.
6. LESSOR'S CONSENT. In any instance wherein Lessee requires
the prior written consent of the Lessor, the granting or withholding of such
consent shall be within the sole and absolute discretion of the Lessor, without
limitation.
7. ALTERATIONS. Lessee shall make no changes in or to the
demised Premises of any nature without Lessor's prior written consent. Subject
to the prior written consent of Lessor, and to the provisions of this paragraph,
Lessee at Lessee's expense, may make alterations, installations, additions or
improvements which are non-structural and which do not affect utility services
or plumbing and electrical lines, in or to the interior of the demised Premises
by using contractors or mechanics first approved by Lessor. All fixtures and all
panelling, partitions, railing and like installations, installed in the Premises
at any time, either by Lessee or Lessor on Lessee's behalf (including trade
fixtures), shall become the property of Lessee and shall remain upon and be
surrendered with the demised Premises unless Lessor, by notice to Lessee no
later than twenty (20) days prior to the date fixed as the termination of this
Lease, elects to have them removed by Lessee, in which event, the same shall be
removed from the Premises by Lessee forthwith, at Lessee's expense. Upon removal
from the Premises of any installations as may be required by Lessor, Lessee
shall immediately and at its expense, repair and restore the Premises to the
condition existing prior to installation and repair any damage to the demised
Premises or the building due to such removal. All property permitted or required
to be removed by Lessee at the end of the term remaining in the Premises after
Lessee's removal shall be deemed abandoned and may, at the election of the
Lessor, either be retained as Lessor's property or may be removed from the
Premises by Lessee at Lessee's expense. Lessee shall, before making any
alterations, additions, installations or improvements, at its expense, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Lessor and Lessee agrees to carry and will cause Lessee's
contractors and sub-contractors to carry such worker's compensation, general
liability, personal and property damage insurance as Lessor may require. Lessee
agrees to obtain and deliver to Lessor, written and unconditional waivers of
mechanic's liens upon the real property in which the demised Premises are
located, for all work, labor and services to be performed and materials to be
furnished in connection with such work, signed by all contractors,
sub-contractors, materialmen and laborers to become involved in such work.
Notwithstanding the foregoing, if any mechanic's lien is filed against the
demised Premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Lessee, whether or not
done pursuant to this paragraph, the same shall be discharged by Lessee within
ten (10) days thereafter, at Lessee's expense, by payment thereof or by filing
the bond required by law.
8. REPAIRS. Lessor shall, on behalf of Lessee, and at Lessee's
cost and expense, maintain and repair the public portions of the building, both
exterior and interior. The expense thereof incurred by Lessor shall be
collectable as additional rent from Lessee, after rendition of a xxxx or
statement therefor, and payable in the same manner as set forth herein for the
payment of rent. Lessee shall, throughout the term of this Lease, take good care
of the demised Premises and the fixtures and appurtenances therein and at
Lessee's sole cost and expense, make all non-structural repairs thereto as and
when needed to preserve them in good working order and condition, reasonable
wear and tear, obsolescence and damage from the elements, fire or other
casualty, excepted. Notwithstanding the foregoing, all damage or injury to the
demised Premises or to any other part of the building, or to its fixtures,
equipment and appurtenances, whether requiring structural or non-structural
repairs, caused by or resulting from carelessness, omission, neglect or improper
conduct of Lessee, Lessee's servants, agents, employees, invitees or licensees,
shall be repaired promptly by Lessee at its sole cost and expense, to the
satisfaction of Lessor reasonably exercised. Lessee shall also repair all damage
to the building and the demised Premises caused by the moving of Lessee's
fixtures, furniture or equipment. All the aforesaid repairs shall be of quality
or class equal to the original work or construction. If Lessee fails after ten
days notice to proceed with due diligence to make repairs required to be made by
Lessee, the same may be made by Lessor at the expense of Lessee and the expenses
thereof incurred by Lessor shall be collectible as additional rent after
rendition of a xxxx or statement therefor. Lessee shall give Lessor prompt
notice of any defective condition in any plumbing, heating system or electrical
lines located in, servicing or passing through the demised Premises and
following such notice, Lessor shall remedy the condition with due diligence, on
behalf of and at the expense of Lessee, which expense shall be collectible as
additional rent and shall be payable in the same manner as is rent hereunder, as
aforesaid. Except as is specifically provided for in Paragraph 11 or elsewhere
in this Lease, there shall be no allowance to Lessee for a diminution of rental
value and no liability on the part of Lessor by reason of inconvenience,
annoyance or injury to business arising from Lessor, Lessee or others making or
failing to make any repairs, alterations, additions or improvements in or to any
portion of the building or the demised Premises or in and to the fixtures,
appurtenances or equipment thereof. The provisions of this Paragraph 8 with
respect to the making of repairs shall not apply in the case of fire or other
casualty which is addressed in Paragraph 11 hereof.
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9. WINDOW CLEANING. Lessee will not clean, nor require,
permit, suffer or allow any window in the demised Premises to be cleaned, from
the outside in violation of Section 202 of the Labor Law or any other applicable
law or of the rules of any municipal or other governmental agency, board or body
having or asserting jurisdiction.
10. SUBORDINATION. This Lease is subject and subordinate to
all ground or underlying leases and to all mortgages which may now or hereafter
affect such leases or the real property of which demised Premises are a part and
to all renewals, modifications, consolidations, replacements and extensions of
any such underlying leases and mortgages. This clause shall be self-operative
and no further instrument of subordination shall be required by any ground or
underlying lessee or by any mortgagee, affecting any Lease or the real property
of which the demised Premises are a part. In confirmation of such subordination,
Lessee shall execute promptly any certificate that Lessor may request.
11. DESTRUCTION, FIRE AND OTHER CASUALTY. If the demised
Premises or any part thereof shall be damaged by fire or other casualty, Lessee
shall give immediate notice thereof to Lessor and this Lease shall continue in
full force and effect except as hereinafter set forth:
a. If the demised Premises are partially damaged or
rendered partially unusable by fire or other casualty, then the rent shall be
apportioned from the day following the casualty until such repair shall be
substantially completed, according to the part of the Premises which is usable,
subject to Lessor's right to elect not to repair the same as hereinafter
provided.
b. If the demised Premises are totally damaged or
rendered wholly unusable by fire or other casualty, then the rent shall be
proportionately paid up to the time of the casualty and shall thenceforth cease
until the date when the Premises shall have been repaired and restored by
Lessor, subject to Lessor's right to elect not to repair the same as hereinafter
provided.
c. If the demised Premises are rendered wholly
unusable, or if Lessor shall elect not to repair partially damaged or partially
unusable portions of the Premises or (whether or not the demised premises are
damaged in whole or in part) if the building shall be so damaged that Lessor
shall decide to demolish it or to rebuild it, then, in any of such events,
Lessor may elect to terminate this Lease by written notice to Lessee given
within 90 days after such fire or casualty specifying a date for the expiration
of the Lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this Lease shall
expire as fully and completely as if such date were the date set forth above for
the termination of this Lease and Lessee shall forthwith quit, surrender and
vacate the Premises without prejudice however, to Lessor's rights and remedies
against Lessee under the Lease provisions in effect prior to such termination,
and any rent and additional rent owing shall be paid up to such date and any
payments of rent made by Lessee which were on account of any period subsequent
to such date shall be appropriately apportioned and/or returned to the Lessee.
Unless Lessor shall serve a termination notice as provided for herein, Lessor
shall make the repairs and restorations under the conditions of Paragraph 11 a.
and 11 b. hereof, with all reasonable expedition subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Lessor's
control.
d. In any such event wherein Lessor elects to restore
or repair damage to the Premises as aforesaid, Lessor may require, as a
prerequisite to its obligation to make such repairs and restoration, that Lessee
agrees to such adjustment(s) in the rent payable hereunder as would, in the sole
discretion of Lessor, reimburse Lessor for the actual, out-of-pocket cost and
expense to Lessor of the performance of such repairs or restoration.
e. Nothing contained hereinabove shall relieve Lessee
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Lessor
and Lessee each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance and also, provided that such a policy
can be obtained without additional premiums. Lessee acknowledges that Lessor
will not carry insurance on Lessee's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Lessee and
agrees that Lessor will not be obligated to repair any damage thereto or replace
the same.
12. EMINENT DOMAIN. If the whole or any part of the demised
Premises shall be acquired or condemned by eminent domain for any public or
quasi public use or purpose, then and in that event, the rent payable hereunder
shall be paid up to the time of such taking and the term of this Lease shall
cease and terminate from the date of title vesting in such proceeding and Lessee
shall have no claim for the value of any unexpired term of said Lease.
13. ACCESS TO PREMISES. Lessor or Lessor's agents shall have
the right (but shall not be obligated) to enter the demised Premises in any
emergency at any time, and, at other reasonable times, to examine the same and
to make such repairs, replacements and improvements as Lessor may deem necessary
and reasonably desirable to the demised Premises or to any other portion of the
building or which Lessor may elect to perform following Lessee's failure to make
repairs or perform any work which Lessee is obligated to perform under this
Lease, or for the purpose of complying with laws, regulations and other
directions of governmental authorities. Lessee shall permit Lessor to use and
maintain and replace pipes and conduits in and through the demised Premises and
to erect new pipes and conduits therein. Lessor may, during the progress of any
work in the demised Premises, take all necessary materials and equipment into
said Premises without the same constituting an eviction nor shall the Lessee be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Throughout
the term hereof Lessor shall have the right to enter the demised Premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgagees of the Premises or of the building of which same are a part and
during the last six months of the term for the purpose of showing same to
prospective tenants and may, during said six months period, place upon the
Premises the usual notice "To Let" and "For Sale" which notice Lessee shall
permit to remain thereon without molestation. If Lessee is not present to open
and permit an entry into the Premises, Lessor or Lessor's agents may enter the
same whenever such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard Lessee's
property and such entry shall not render Lessor or its agents liable therefor,
nor in any event shall the obligations of Lessee hereunder be affected.
14. REMEDIES OF LANDLORD. In case of any default, re-entry,
expiration and/or dispossess by summary proceedings or otherwise, (a) the rent
shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, together with such expenses as Lessor may incur
for legal expenses, attorneys' fees, brokerage and/or putting the demised
Premises in good order, or for preparing the same for re-rental; Lessor may
re-let the Premises or any part or parts thereof, either in the name of Lessor
or otherwise, for a term or terms, which may at Lessor's option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this Lease and may grant concessions or free rent or charge a higher rental
than that in this Lease, and/or (c) Lessee or the legal representatives of the
Lessee shall also pay Lessor as liquidated damages for the failure of Lessee to
observe and perform said Lessee's covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the Lease for each month of
the period which would otherwise have constituted the balance of the term of
this Lease. The failure or refusal of Lessor to re-let the Premises or any part
or parts thereof shall not release or affect Lessee's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses as Lessor may incur in connection with re-letting such as legal
expenses, attorneys' fees, brokerage and/or putting the demised Premises in good
order, or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Lessee on the rent day specified in
this Lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Lessor to collect the
deficiency for any subsequent month by a similar proceeding. Lessor, in putting
the demised Premises in good order or preparing the same for re-rental may, at
Lessor's option, make such alterations, repairs, replacements and/or decorations
in the demised Premises as Lessor, in Lessor's sole judgment, considers
advisable and necessary for the purpose of re-letting the demised Premises, and
the making of such alterations, repairs, replacements and/or decorations shall
not operate or be construed to release Lessee from liability hereunder as
aforesaid. Lessor shall in no event be liable in any way whatsoever for failure
to re-let the demised Premises, or in the event that the demised Premises are
re-let, for failure to collect the rent thereof under
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such re-letting, and in no event shall Lessee be entitled to receive any excess,
if any, of such net rents collected over the sums payable by Lessee to Lessor
hereunder. In the event of a breach or a threatened breach by Lessee of any of
the covenants or provisions hereof, Lessor shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this Lease of any particular remedy, shall not preclude Lessor from any other
remedy, in law or in equity. Lessee hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Lessee being evicted or dispossessed for any cause, or in the event of Lessor
obtaining possession of the demised Premises, by reason of the violation by
Lessee of any of the covenants and conditions of this Lease, or otherwise.
15. NO REPRESENTATIONS BY LANDLORD. Neither Lessor nor
Lessor's agents have made any representations or promises with respect to the
physical condition of the building, the land upon which it is erected or the
demised Premises, the rents, leases, expenses of operation or any other matter
or thing affecting or related to the Premises except as herein expressly set
forth and no rights, easements or licenses are acquired by the Lessee by
implication or otherwise except as expressly set forth in the provisions of this
Lease. Lessee has inspected the building and the demised Premises and is
thoroughly acquainted with their condition, and agrees to take the same "as is"
and acknowledges that the taking of possession of the demised Premises by Lessee
shall be conclusive evidence that the said Premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this Lease,
and the Management Agreement to which it is annexed, which alone fully and
completely express the agreement between Lessor and Lessee and any executory
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of it in whole or in part, unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
16. END OF TERM. Upon the expiration or other termination of
the term of this Lease, Lessee shall quit and surrender to Lessor the demised
Premises, broom clean, in good order and condition, ordinary wear excepted, and
Lessee shall remove all its property. Lessee's obligation to observe or perform
this covenant shall survive the expiration or other termination of this Lease.
If the last day of this Lease or any renewal thereof, falls on Sunday, this
Lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
17. QUIET ENJOYMENT. Lessor covenants and agrees with Lessee
that upon Lessee paying the rent and additional rent and observing and
performing all the terms, covenants and conditions, on Lessee's part to be
observed and performed, and Lessee's observing and performing all the terms,
covenants and conditions on Lessee's part to be performed under the Management
Agreement, Lessee may peaceably and quietly enjoy the Premises hereby demised,
subject, nevertheless, to the terms and conditions of this Lease including, but
not limited to, Paragraph 16 hereof and to the ground leases, underlying leases
and mortgages herein before and hereinafter mentioned.
18. INABILITY TO PERFORM. This Lease and the obligation of
Lessee to pay rent hereunder and perform all of the other covenants and
agreements hereunder on the part of Lessee to be performed shall in no way be
affected, impaired or excused because Lessor is unable to fulfill any of its
obligations under this Lease or to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is delayed in
making any repair, additions, alterations or decorations 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 strike or labor troubles or any cause
whatsoever including, but not limited to, government preemption in connection
with a National Emergency or by reason of any rule, order or regulation of any
department or subdivision thereof or any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
19. SERVICES. Lessor shall provide all essential services to
the Premises (e.g. water, electricity, gas, heat, air conditioning, etc.) on
behalf of and at the expense of the Lessee, the cost of which services shall be
included within the rent payable by Lessee hereunder (and the increase in which
costs shall be included in any adjustments to the rent made pursuant to
Paragraph 3 hereof. Lessor may require Lessee, at any time, to arrange with the
utility companies supplying such services to have accounts therefor established
in the name of the Lessee, after which Lessee shall pay the charges therefor
directly to such utility companies.
20. RULES AND REGULATIONS. Lessee and Lessee's servants
employees, agents, visitors, and licensees shall observe faithfully, and comply
strictly with, the Rules and Regulations of the building and such other
reasonable Rules and Regulations as Lessor or Lessor's agents may from time to
time adopt. Notice of any additional rules and regulations shall be given in
such manner as Lessor may elect. The right to dispute the reasonableness of any
additional Rule or Regulation upon Lessee's part shall be deemed waived unless
the same shall be asserted by service of a notice, in writing upon Lessor within
ten (10) days after the giving of notice thereof. Nothing in this Lease
contained shall be construed to impose upon Lessor any duty or obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other
Lease, as against any other tenant and Lessor shall not be liable to Lessee for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
21. SECURITY. Lessee has deposited with Lessor the sum of
twice the monthly rent as security for the faithful performance and observance
by Lessee of the terms, provisions and conditions of this Lease; it is agreed
that in the event Lessee defaults in respect of any of the terms, provisions and
conditions of this Lease, including, but not limited to, the payment of rental
and additional rent, Lessor may use, apply or retain the whole or any part of
the security so deposited to the extent required for payment of any rent and
additional rent or any other sum as to which Lessee is in default or for any sum
which Lessor may expend or may be required to expend by reason of Lessee's
default in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency accrued before or after
summary proceedings or other re-entry by Lessor. In the event that Lessee shall
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the security shall be returned to the Lessee after the
date fixed as the end of the Lease and after delivery of entire possession of
the demised Premises to Lessor. In the event of a sale of the land and building
or leasing of the building, of which the demised Premises form a part, Lessor
shall have the right to transfer the security to the vendee or lessee and Lessor
shall thereupon be released by Lessee from all liability for the return of such
security; and Lessee agrees to look to the new Lessor solely for the return of
such security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new lessor. Lessee further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Lessor nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
22. INSURANCE AND INDEMNITY.
a. Lessee, prior to commencing occupancy of the
Premises, shall obtain, and shall maintain throughout the term of this Lease and
any renewals thereof, a policy of comprehensive general liability insurance
covering the Premises, with minimum limits of One Million ($1,000,000.00)
dollars per occurrence for personal injury, death and/or property damage, and
Three Million ($3,000,000.00) dollars aggregate, written with a company licensed
to do business in the State of State and satisfactory to Lessor. Lessor shall be
named as an additional insured under said policy. Lessee shall provide Lessor
with a certificate evidencing such coverage prior to taking occupancy, which
certificate shall set forth on its face:
(1) that Lessor is an additional insured;
(2) that such policy may not be terminated
or canceled for any reason, shall not expire by its term and may not be altered
or modified in any way without Lessor receiving at least thirty (30) days prior
written notice of any of same; and
(3) that Lessee is covered for contractual
obligations, including specifically its obligations to indemnify Lessor, as set
forth hereinafter and in the Management Agreement.
b. Lessee hereby indemnifies, holds harmless and
agrees to defend Lessor from and against any and all liability, losses, damages,
claims, causes of action and expenses associated therewith (including reasonable
attorneys' fees), of whatsoever nature and by whomsoever asserted arising,
directly or
5
indirectly, out of any bodily injury, death or property damage occurring in, on
or about (or claimed to have been occurred in, on or about) the Premises, or the
Land, or the building of which the Premises are a part, or the sidewalks
adjacent thereto, during the term of this Lease or any renewal thereof. This
provision shall survive the expiration or sooner termination of this Lease.
23. SPECIFIC SUPERIOR INSTRUMENTS.
In addition to the subordination set forth in
Paragraph 10 hereof, and without in any way limiting the generality of the
foregoing, it is agreed and understood that this Lease is subject and
subordinate to those matters which are set forth in Exhibit "A" annexed hereto
and made a part hereof.
Lessee acknowledges receipt of true and complete
copies of each and every document or instrument relative to the matters set
forth herein and represents that it is aware of the terms and provisions of each
of same and that this Lease is subordinate thereto.
Although this clause is self-operative and no further
instruments are necessary to confirm same, Lessee will deliver to Lessor, upon
request, such instruments as may be required by Lessor or the holders of any of
the instruments set forth in Exhibit "B" to evidence the subordination of this
Lease thereto. If Lessee shall fail to execute any such instrument provided by
Lessor within five (5) business days after request by Lessor, Lessor may execute
same as attorney-in-fact for Lessee and Lessee hereby appoints Lessor as same.
24. ENTIRE AGREEMENT; NO MODIFICATION. This Lease (including
the Management Agreement to which it is attached and which is incorporated
herein by reference) and the Exhibits annexed hereto and made a part hereof, if
any, constitute the entire agreement between the parties hereto with respect to
the subject matter hereof, there being no representation, warranty or other
agreement not herein expressly set forth or provided for. No change,
modification, or amendment of or addition to this Agreement shall be valid
unless in writing and executed by all of the parties hereto.
25. NOTICES. Any and all notices, designations, consents,
offers, acceptances or any other communication provided for herein shall be
given in writing by registered or certified mail to the parties at the addresses
shown above. Each such communication shall be deemed to have been given at the
time it is mailed at any regularly maintained post office.
26. NO WAIVER. No course of dealing nor any delay on the part
of any party in exercising any rights hereunder or under the Management
Agreement shall operate as a waiver of any of such rights. No waiver of any
default or breach of this Lease or of the Management Agreement shall be deemed a
continuing waiver or waiver of any other breach or default hereunder or under
the Management Agreement.
27. SEVERABILITY. If any provision of this Lease or the
application of any such provision to any party or in any circumstances shall be
determined by any court or regulatory authority of competent jurisdiction to be
invalid and unenforceable to any extent, the remainder of this Lease or the
application of such provision or provisions to such entity or circumstances
other than those to which it is so determined to be invalid and unenforceable,
shall not be affected thereby and shall be valid and enforceable to the fullest
extent of the law.
28. BINDING EFFECT. This Lease shall inure to the benefit of
the parties hereto and, except as otherwise provided herein, their respective
successors and assigns as permitted herein. Nothing in this Lease, express or
implied, is intended to or shall confer on any person other than the parties
hereto, or (to the extent not prohibited) their respective successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Lease.
29. GOVERNING LAW. This Lease shall be interpreted and given
effect in accordance with the laws of the State of State without giving effect
to the conflict of laws provisions thereof.
30. CONFLICT WITH MANAGEMENT AGREEMENT. This Lease being
attached to and made a part of the Management Agreement, is intended to
complement and not to conflict with or in any way limit the terms and provisions
of the Management Agreement. Accordingly, in the event of any conflict or
inconsistency between the terms and provisions hereof and those of the
Management Agreement, those of the Management Agreement will control.
32. SECTION HEADINGS. The section headings in this Lease are
for convenience only, and are not to be construed as part of this Lease.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands the
day and year first above written.
WITNESS:
((CWMC_Name))
----------------- by:
-----------------------
, President
Complete Wellness Centers, Inc.
----------------- by:
-----------------------
E. Xxxxxx Xxxxxx, President
State of ((State))
County of ((County))
On this ____ day of ______________, 19__ before me personally came, to
me known, who being by me duly sworn, did depose and say that he resides at;
that he is the president of ((CWMC_Name)), the corporation described in, and
which executed the foregoing instrument as Lessee; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
---------------------------------
NOTARY PUBLIC
State of Maryland
County of Xxxxxxxxxx
On this ____ day of ________, 19__ before me personally came E. Xxxxxx
Xxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000; that he is the president
of Complete Wellness Centers, Inc., the corporation described in, and which
executed, the foregoing instrument, as Lessor; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors and said corporation,
and that he signed his name thereto by like order.
---------------------------------
NOTARY PUBLIC
