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EXHIBIT 10.2
SUBLEASE
AGREEMENT OF SUBLEASE made this 3 day of September, 1998, by and between
NovaCare, Inc. with offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxx xx Xxxxxxx, XX
("Sublessor") and Florida Business BancGroup, a Florida corporation with offices
at 000 Xxxxx Xxxxxxxxx Xxxx. Xxxxx 0000, Xxxxx, Xxxxxxx
("Sublessee").
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W I T N E S S E T H :
WHEREAS, pursuant to a lease dated October 14, 1996, between Edgewood General
Partnership as landlord ("Prime Landlord") and Sublessor as tenant, attached
hereto as Exhibit "A" ("Prime Lease"), the Prime Landlord leased to Sublessor
approximately 3,041 square feet of office space known as Tower II, Austin Center
West located at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx; and
WHEREAS, Sublessee desires to sublease approximately 3,041 square feet of said
premises from Sublessor.
NOW THEREFORE, the parties hereto agree as follows:
1. SUBLEASE
Sublessor hereby subleases to Sublessee, and Sublessee hereby hires and
subleases from Sublessor, on the terms, covenants and conditions hereinafter
provided, the Subleased Premises which the parties acknowledge and agree
contains approximately 3,041 rentable square feet.
2. TERM
The term of this Sublease shall commence on November 1, 1998 (the "Commencement
Date") and shall expire on October 1, 1999 (the "Termination Date") unless
sooner terminated by reason of or pursuant to any provision set forth herein or
in the Prime Lease.
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3. RENT
Sublessee shall pay Sublessor as rent hereunder Sixteen Dollars ($16.00) per
square foot. Sublessee shall pay the rent in equal monthly installments of four
thousand fifty-four and 66/100 dollars ($4,054.66).
4. USE
The Subleased Premises shall be used only for purposes allowed for in
the Prime Lease.
5. ASSIGNMENT
Sublessee shall not assign this Sublease nor sublet the Subleased Premises in
whole or in part; and shall not permit Sublessee's interest in this Sublease to
be vested in any third party by operation of law or otherwise.
6. ESCALATION
Not Applicable.
7. PRIME LEASE
This lease is subject and subordinate to the Prime Lease. Except as may be
inconsistent with the terms hereof, all the terms covenants and conditions in
the Prime Lease contained shall be applicable to this Sublease with the same
force and effect as if Sublessor were the tenant thereunder; and in case of any
breach hereof by Sublessee, Sublessor shall have all the rights against
Sublessee as would be available to the landlord against the tenant under the
Prime Lease if such breach were by the tenant thereunder.
8. SERVICES PROVIDED BY PRIME LANDLORD
Notwithstanding anything herein contained, the only services or rights to which
Sublessee is entitled hereunder are those to which Sublessor is entitled under
the Prime Lease and for all such services and rights, Sublessee will look to the
Prime Landlord under the Prime Lease.
9. SUBLESSEE'S OBLIGATIONS AND SUBLESSOR'S RIGHT TO PERFORM SUBLESSEE'S
OBLIGATIONS
Sublessee, with respect to the Subleased Premises, will duly and faithfully
observe all the terms and restrictions and perform all the obligations imposed
on Sublessor as
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tenant under the Prime Lease. Sublessor shall have the right (but not the
obligation) to take at the sole expense of Sublessee, any and all actions
required to be taken by the Sublessee pursuant to the provisions hereof or the
Prime Lease, but not timely taken by Sublessee which may be necessary to prevent
a default under or to assure complete compliance with the terms of this Sublease
or the Prime Lease. All costs and expenses incurred by Sublessor, including, but
not limited to, counsel fees, for any actions taken pursuant to this. Article 9
shall be payable by Sublessee, as additional rent, within five (5) days after
delivery of a statement of any such costs to Sublessee.
10. SUBLESSOR NOT LIABLE FOR DEFAULTS OF PRIME LANDLORD
Sublessor shall not be responsible, answerable, or liable to Sublessee for or by
reason of any defaults by the Prime Landlord as the landlord under the Prime
Lease.
11. SUBLESSEE NOT TO CAUSE DEFAULT
Sublessee shall neither do nor permit anything to be done which would cause the
Prime Lease to be terminated or forfeited by reason of any right of termination
or forfeiture reserved or vested in the landlord under the Prime Lease.
12. INDEMNITY FOR SUBLESSEE'S BREACH
Sublessee shall indemnify and hold Sublessor harmless from and against all
claims of any kind whatsoever by reason of any breach or default of this
Sublease on the part of Sublessee.
13. SECURITY
Sublessee has paid Sublessor on the execution and delivery of this Sublease the
sum of four thousand fifty-four and 66/100 dollars ($4,054.66) as security for
the full and faithful performance of the terms, covenants and conditions of this
Sublease on Sublessee's part to be performed or observed, including but not
limited to payment of rent and additional rent in default of for any sum which
Sublessor may expend or to be required to expend by reason of Sublessee's
default, including any damages or deficiency in reletting the Subleased
premises, in whole or in part, whether such damages shall accrue before or after
summary proceedings or other re-entry by Sublessor. If Sublessee shall fully and
faithfully comply with all the terms, covenants and conditions of this Sublease
on Sublessee's part to be performed or observed, the security or any unapplied
balance thereof shall be returned to Sublessee after the time fixed as the
expiration of the demised term and after the removal of Sublessee and surrender
of possession of the Subleased Premises.
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14. CONDITION OF SUBLEASED PREMISES
Sublessee hereby accepts the Subleased Premises in their current "as is"
condition. Upon the expiration or termination of the term of this Sublease,
Sublessee shall quit and surrender the Subleased Premises "broom clean," in the
same condition as on the Commencement Date damage not the fault of Sublessee and
ordinary wear and tear excepted. Sublessor makes no representations or
warranties as to the condition of the premises including electrical, mechanical,
and any other systems serving the Premises.
Sublessee shall not make any alterations, changes, etc. without the prior
written consent of Sublessor (which is further subject to the Prime Landlord's
approval).
15. SURRENDER OF PREMISES
Sublessee agrees that time shall be of the essence with respect to Sublessee's
obligation to surrender possession of the Subleased Premises to Sublessor upon
the termination of the term of this Sublease, and further agrees that in the
event that Sublessee does not promptly surrender possession of the Subleased
Premises to Sublessor upon such termination, Sublessor, in addition to any other
rights and remedies Sublessor may have against Sublessee for such holding over,
shall be entitled to bring summary proceedings against Sublessee, and Sublessee
agrees to reimburse Sublessor for Sublessor's damages, consequential as well as
direct, sustained by Sublessor by reason of such holding over including without
limitation, Sublessor's reasonable attorney's fees and disbursements incurred in
connection with the exercise by Sublessor of its remedies against Sublessee.
Consequently damages shall include but not be limited to: (a) Sublessor's costs
incurred as a result of Sublessor's costs incurred as a result of Sublessor's
inability to occupy the Subleased Premises including additional moving expenses
and increased construction costs, if any, relating to any improvements to the
Subleased Premises planned by Sublessor upon termination of this Sublease; and
(b) any amounts owed to the Prime Landlord for failure to surrender the premises
leased under the Prime Lease upon termination of the Prime Lease.
16. ENTIRE AGREEMENT
This Sublease constitutes the entire agreement between the parties hereto and no
earlier statements or prior written matter shall have any force or effect.
Sublessee agrees that it is not relying on any representations or agreements of
the other, except those contained in this Sublease. This Sublease shall not be
modified or canceled or amended except by written instrument subscribed by both
parties.
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17. SUCCESSORS
The covenants, conditions and agreements contained in this Sublease shall bind
and inure to the benefit of Sublessor and Sublessee and their respective
successors and their assigns.
18. NOTICES
Any notice required or desired to be given to any party hereto shall be given by
certified mail, return receipt requested, and be addressed to the parties hereto
at their address as set forth below:
If to Sublessor:
Attention: NovaCare, Inc.
With a copy to: 0000 Xxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
If to Sublessee: Florida Business BancGroup, Inc.
(address)
(address)
Attention: Xxxxxxx X. XxXxxxx
Sublessee shall, at all times during the term of this Sublease, send Sublessor
copies of all notices it receives for the Prime Landlord and any government
entity in connection with the Demised Premises and Sublessee's occupancy thereof
promptly upon sublessee's receipt thereof.
19. PRIME LANDLORD'S CONSENT
This Sublease is conditioned upon Sublessor's obtaining the Prime Landlord's
written consent to this Sublease. Sublessor will seek the Prime Landlord's
consent pursuant to the Prime Lease. If such consent is refused or if the same
is not obtained in writing within thirty (30) days after the date hereof, this
Sublease shall be null and void, of no force or effect and all sums that
Sublessee shall have paid or delivered hereunder to Sublessor shall be promptly
returned to Sublessee.
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20. BROKERS
Sublessee covenants, warrants, and represents that is has not dealt with any
broker in connection with this Sublease other than CLW Realty and Sublessor
agrees to pay the commission of said broker in accordance with a separate
agreement. Sublessee agrees to indemnify and hold Sublessor harmless from any
and all liability, damage, costs, expenses and fees (including attorneys' fees)
which Sublessor may incur or be required to pay as a result of Sublessee's
dealings with any broker other than CLW Realty or sublessee's breach of the
foregoing representation and warranty.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be signed
and sealed as of the day and year first above written.
NOVACARE, INC.
--------------------------------
Sublessor
XXXX XXXXXX
--------------------------------
By: Xxxx Xxxxxx
Director of Real Estate
Date: 9/03/98
XXXXXXX X. XXXXXXX
--------------------------------
Sublessee
By: Xxxxxxx X. XxXxxxx
Date: 9/03/98
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Prime Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Prime Lease
concerning further assignment or subletting. Lessor certifies that as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Prime Lease and that the Prime Lease has not been
amended or modified, except as expressly set forth in the foregoing Sublease.
Lessee, NovaCare, Inc. shall continue to be primarily responsible under the
Prime Lease and shall perform all obligations as required under said Prime
Lease.
Date: 9-3-98
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Lessor: Edgewood General Partnership
---------------------------------------
By:
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Title: As Agent For Edgewood Gen. Partnership
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EXHIBIT A
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease hereby consents to the
foregoing Sublease without waiver of any restriction in the Master lease
concerning further assignment or subletting. Lessor certifies that as of the
date of Lessor's execution hereof Sublessor is not in default or breach of any
of the provisions of the Prime Lease has not been amended or modified except as
expressly set forth in the foregoing Sublease,
Date: ______________________________
Lessor:______________________________
By: ______________________________
Title: ______________________________
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FOR THE EXCLUSIVE USE OF THE AUSTIN COMPANIES
FOR
AUSTIN CENTER WEST PHASE II
LEASE AGREEMENT
THIS AGREEMENT, made and entered into at Tampa, Florida, on this 14 of
October, 1996 by and between EDGEWOOD GENERAL PARTNERSHIP party of the first
part, hereinafter called "Lessor", and NOVACARE, INC. party of the second part,
hereinafter called "Lessee."
WITNESSETH:
That Lessor, in consideration of the rentals hereinafter reserved and
the covenants, agreements, and conditions hereinafter undertaken by or imposed
upon Lessee, hereby leases, lets, and demises unto Lessee, and Lessee hereby
leases and hires from Lessor, that certain office space hereinafter described in
the building known as TOWER II, AUSTIN CENTER WEST located at 0000 Xxxxx
Xxxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx (the "Building"). Said office space has a
street address of 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx, is
more particularly described in Exhibit "A" attached hereto and made a part
hereof, and hereinafter is referred to as the "Premises." The real property of
which the building and the Premises constitute a part, together with all
appurtenances thereto, is hereinafter referred to as the "Land."
The following expressed stipulations and conditions are made a part of
this Lease and are hereby assented to by Lessor and Lessee:
1. TERM. The initial term of this lease shall be for a period of Three
(3) years, commencing at midnight on *November 1, 1996, and ending at midnight
on October 1, 1999, both dates inclusive, for the agreed rental herein
stipulated, unless sooner terminated as hereinafter provided. Should the
Premises not be available for occupancy by the shown commencement date, the
lease term shall remain the same as shown with both the commencement and
expiration dates being adjusted as necessary. Lessee shall not be required to
pay rent for any period of time the Premises are not tenantable due to the
aforesaid delay. Lessor shall not be liable to Lessee for failure to have the
Premises ready for occupancy in a timely fashion.
* Lessee may take possession prior to November 1, 1996 and rent will be prorated
and billed accordingly.
2. RENTAL. Lessee promises and agrees to pay Lessor, at the offices of
the Lessor at X.X. Xxx 00000, Xxxxx, Xxxxxxx, or at such other address and to
such other person as Lessor may from time to time designate in writing, as
annual rental for the Premises during the initial term of this Lease the sum
of --- SEE RENTAL SCHEDULE, PAGE 1A ---
_______________________________________________________________________ Dollars
($______________________________), due and payable monthly in advance, without
the demand or setoff, in equal monthly installments of --- SEE RENTAL SCHEDULE,
PAGE 1A --- ___________________________________________________________ Dollars
($______________________________), on the first day of each and every
calendar month during the term of this Lease. Should the term of this Lease
commence on any other day than the first day of a calendar month, there shall
be an appropriate adjustment of the monthly rental payment for said partial
months. As additional rental, Lessee covenants and agrees to pay to Lessor the
sum of --- SEE RENTAL SCHEDULE, PAGE 1A ---
_______________________________________________________________________ Dollars
($______________________________). In the event any monthly installment of
rental is not received by Lessor on or before the due date of such installment.
Lessee further agrees to pay to Lessor all sales, excise, and use taxes imposed
by law on the rental and additional rental payments under this Lease, said
taxes to be paid together with the installments and rental due hereunder.
Lessor will xxxx Lessee for the prepayment of Lessee's first and last month's
rent.
November 1, 1996 and Waived __________________________, 19____.
3. DEFAULT AND REMEDIES. Upon the happening of any of the following
events:
(a) Lessee's continued default in the payment of any rental or
other money payments due hereunder or any other money payment due Lessor under
any other agreement or contract, for a period of ten (10) days; or after the
date of mailing of a written notice od delinquency.
(b) Lessee's continued default in the performance or observance of
any of the other covenants or agreements herein contained for a period of
ten (10) days after the date of mailing written notice thereof by Lessor to
Lessee; or
(d) Lessee's voluntary petitioning for relief under or otherwise
seeking benefit of any bankruptcy, reorganization or insolvency law; or
(e) A receiver or trustee being appointed for Lessee or its
property, or
(f) the filing of an involuntary bankruptcy, arrangement or
reorganization petition against Lessee; or
(g) Lessee making an assignment for the benefit of creditors; or
(i) Lessee's interest under this Lease being sold under execution
or other legal process; or,
(j) Any transfer or assignment of Lessee's interest under this
Lease or the Premises, by operation of law or otherwise, without the prior
written consent of Lessor, or
Lessor may, in addition to all other remedies provided by law, exercise any one
or more of the following options:
(b) Terminate Lessee's right to possession under this Lease and
reenter and take possession of the Premises, and relet or attempt to relet the
Premises, or any part thereof, on behalf of and as the agent of the Lessee, at
such rental and under such terms and conditions as Lessor may deem best under
the circumstances for the purpose of reducing Lessee's liability, and Lessor
shall not be deemed to have thereby accepted a surrender of the Premises, and
Lessee shall remain liable for all rental and additional rental due under this
Lease and for all damages suffered by Lessor because of Lessee's breach of any
of the covenants of this Lease. Lessor shall apply any rentals received from
such reletting first to the expenses of the Lessor, if any, incurred by
reentering and placing the Premises in condition for reletting, and then to the
payment of rentals due hereunder and other obligations of Lessee to the Lessor
arising under this Lease. At any time during such repossession or reletting.
Lessor may, by delivering written notice to the Lessee, elect to exercise its
option under the following subparagraph to accept a surrender of the Premises,
terminate and cancel this lease, and retake possession and occupancy of the
Premises on behalf of Lessor.
(c) Declare this Lease terminated, whereupon the term herein
granted and all right, title, and interest of Lessee in and to the Premises
shall end. Such termination shall be without prejudice to Lessor's right to
enforce the collection of any rental or additional rental due or accrued at the
termination thereof, and for such time as shall be required to evict Lessee,
together with all other damages suffered by Lessor as a result of Lessee's
default. Upon such termination Lessor shall have the right immediately to
reenter the Premises and take possession thereof, and the Lessee shall
thereupon surrender the Premises to the Lessor.
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RENTAL SCHEDULE
FOR LEASE BETWEEN
EDGEWOOD GENERAL PARTNERSHIP
(LESSOR)
AND
NOVACARE, INC.
(LESSEE)
XXXXX 000
XXXXX XX, XXXXXX XXXXXX XXXX
YEAR ANNUAL MONTHLY LATE FEE
-------------------------------------------------------------------------------
YEAR 1 $46,375.25 $3,864.60 $193.23
YEAR 2 47,895.75 3,991.31 199.57
YEAR 3 49,416.25 4,118.02 205.90
All the above amounts are subject to Florida State Sales Tax of 6.5%.
Page 1A
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(d) Pay or perform obligation of Lessee for Lessee's account,
without prejudice to any other right or remedy of Lessor. All damages, costs,
and expenses so incurred by Lessor, including any interests, penalties, and
attorney's fees, shall be due and payable to Lessor on demand.
(e) Enforce by any available procedure a landlord's lien upon any
or all of Lessee's equipment, furnishings, furniture trade fixtures, inventory,
and other personal property of Lessee situated on, affixed to, or kept on the
Premises, Lessee hereby granting Lessor an express landlord's lien upon all
such property for the full performance of each of the Lessee's obligations
hereunder.
(f) Exercise any and all rights and privileges that Lessor may have
under the laws of the state of Florida or of the United States of America.
The remedies of Lessor herein are cumulative and the election to proceed by
forfeiture or surrender or otherwise shall not operate as a bar to prosecution
of all provisions of this Lease or of law then in force. All of Lessee's
obligations under this Lease bear interest at the maximum rate from time to
time permitted by law; and all costs, including reasonable attorney's and
receiver's fees, if any, incurred in connection with the exercise of any of
Lessor's remedies (whether by legal proceedings or otherwise), constitutes
elements of Lessor's damages and shall be paid by Lessee to Lessor. In the
event it becomes necessary for the Lessor to institute legal proceedings to
enforce any term, condition, or covenant contained in this agreement, then in
such event, Lessee agrees to pay Lessor all costs and expenses of such
proceedings together with a reasonable attorney's fee through all proceedings,
trials, and appeals. In the event of default by Lessee, Lessor may discontinue
any and all services to the Premises without liability to Lessee for any
inconvenience, hardship, business or other losses, or damages of any nature
whatsoever.
4. USE. Lessee hereby covenants to use and occupy the Premises for the
sole and exclusive purpose of operating a GENERAL AND ADMINISTRATIVE office
therein and activities reasonably incidental thereto, and for no other uses or
purposes whatsoever without Lessor's prior written consent. Lessee covenants
not to use or maintain the Premises in any unlawful manner or for any unlawful
purposes, and shall promptly comply with any and all laws, ordinances, order,
and regulations of any and all municipal, county, state, federal, and other
governmental authorities that may pertain or apply to Lessee's occupancy, use,
or business operations on the Premises at Lessee's sole cost and expense,
including, but not limited to, any and all energy or fuel conservation orders
or regulations promulgated by any government authority. Lessee shall make no
use whatever of the Premises that would cause an increase in the fire insurance
rate applicable to the Building upon the commencement of the term of this
Lease, and shall not do or permit to be done any act or thing which might
subject Lessor to any liability or responsibility for injury to any person or
persons or to any property by reason of any business operation being conducted
on the Premises. Lessee shall not bring any articles of a dangerous nature or
any heating or cooking units into the Building or the Premises without the
prior written consent of the Lessor. Lessee agrees that nothing will be thrown
or dropped from the windows on the Premises. No safe or other heavy equipment
shall be allowed in the Building unless the weight, location, and handling of
the same is approved by the Lessor. Lessee shall not make any noise or odor
that is objectionable to the public, to other occupants of the Building, or to
Lessor, to emenate from the Premises and shall not create or maintain a
nuisance thereon, and shall not disturb, solicit, or canvas any occupant of the
Building, and shall not do any act lending to injure the reputation of the
Building or the Premises.
5. REPAIRS. Lessee agrees to prevent waste to and to take good care of
the Premises throughout the term of this Lease. Lessee, at Lessee's sole cost
and expense, shall maintain the Premises in good order and repair and in clean
condition throughout the term of this Lease. Lessee, at Lessee's sole cost and
expense, shall make when needed all repairs and alterations to the Premises,
the Building, and the Land whenever damage or injury to the same shall have
resulted from any willful or negligent act or omission by Lessee, its servants,
employees, agents, visitors, invitees, customers, or licensees. If Lessee
neglects or refuses promptly to make any repairs or maintenance required by
this Paragraph, Lessor may perform the same on Lessee's behalf, and Lessee
shall reimburse Lessor for all costs and expenses so incurred upon demand. Upon
termination of this Lease in any manner, Lessee shall peaceably and quietly
leave, surrender, and yield up unto Lessor the Premises broom-clean and as in
good order and repair as existed upon the commencement of the term of this
Lease, normal wear and tear excepted, and shall surrender all keys to the
Premises and the building to the Lessor.
6. ALTERATIONS: CONSTRUCTION LIEN PROHIBITION. Any interest of Lessor
in real property or related improvements shall not be subject to any lien,
mortgage or other encumbrance for improvements made by Lessee. Lessee shall not
make any alterations, modifications, improvements, or additions to the Premises
without Lessor's written consent, and if such consent be given, Lessee shall
comply strictly with all conditions contained in such content and shall
discharge and hold Lessor harmless of and from all charges for labor, services,
or materials in connection with such alterations, modifications, improvements,
or additions. Lessee shall not create or permit the continuation of any lien,
encumbrance, or charge to attach to any interest in the Premises, and Lessee
agrees to discharge any mechanic's lien which may be filed against the
Premises. Lessee shall not cause any telephone, telegraph, burglar alarm, fire
or smoke alarm, or other electrical or mechanical devices or attachments of any
nature to be placed upon the woodwork, walls, ceiling, or floor of the Premises
or the Building without the prior written consent of Lessor. Lessee shall not
install any electrical equipment in the Premises which in Lessor's reasonable
opinion will overload the wiring installations in the Building or interfere
with the reasonable use thereof by Lessor or other tenants in the Building.
Lessee further agrees that no sign, advertising or awning shall be placed on,
attached to, or painted on the Land or the exterior or interior of the
Premises or the Building without the prior written consent of Lessor. Lessee
agrees that no boxes, plants, or other obstructions of any kind will be placed
or hung in the halls, stairways, or staircase landings of the Building, or in
the windows in the Premises or the Building. All windows, doors, and transoms
in the Premises that reflect light into passageways or any other place in the
Building shall be kept uncovered and unobstructed by Lessee; window coverings
or drapes of any sort whatsoever visible from the outside of the Premises or
Building, shall be placed only upon and in accordance with the prior written
approval from the Lessor, and any drapes on exterior windows shall be white.
Upon the termination of this Lease in any manner, all of Lessee's such
alterations, modifications, improvements, and additions to the Premises shall
become and remain the sole property of Lessor, or, at Lessor's sole option,
Lessor may require Lessee to remove the same and restore the Premises to the
same condition as existed upon the commencement of this Lease, all at Lessee's
sole cost and expense. If Lessee fails or refuses to make such removal and
restorations Lessor deems necessary without further notice to or consultation
with Lessee, and Lessee hereby agrees to pay for the same in full within
fifteen (15) days following the mailing of an invoice therefor by Lessor to
Lessee at Lessee's last known address.
7. BUILDING NAME. Lessor hereby reserves the right to change the name
of the Building at any time during the term of this Lease.
8. KEYS AND ENTRY. At all times during the term of this Lease, Lessor
may retain pass keys to the Premises, may enter the Premises at all reasonable
hours for reasonable purposes, may decorate or make repairs, alterations,
additions, or improvements, whether structural or otherwise in or about the
Premises or the Building or any part thereof, and during such alterations,
repairs, improvements or decorations may temporarily close doors, entry ways,
public spaces, and corridors in the Building and interrupt or temporarily
suspend Building services and facilities, all without abatement of rent or
affecting any of Lessee's obligations hereunder. Lessee agrees to permit Lessor
and its agents entry to the Premises at any reasonable time during the term of
this lease for the purpose of showing the Premises to prospective purchasers or
tenants.
9. CASUALTY. In the event the premises, or any part thereof, shall be
destroyed or damaged by fire or other casualty to the extent that the same
shall not be tenantable by Lessee, Lessor, at Lessor's sole option, either may
elect to cancel this Lease as of the time of the damage to or destruction of
the Premises, whereupon Lessee shall be relieved from any payment of rent
accruing thereafter, or Lessor may elect to restore the Premises by repairs or
reconstruction at Lessor's sole cost and expense, in which event the amount of
rents payable hereunder shall be abated for the period of repairs in proportion
to the amount of the Premises which shall be untenantable by Lessee. As used
herein, the term "casualty" means fire, hurricane, flood, tornado, rain, wind,
or other acts of God, regardless of whether the same reasonably could be
foreseen; riot, civil commotion, or other acts of a public enemy; and theft,
vandalism, or other criminal or tortious acts of third parties.
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10. INDEMNITY. Lessee shall defend, indemnify, and hold Lessor
harmless of and from any and all losses, damages, claims, costs and expenses,
including reasonable attorney's fees, arising out of any claim asserted by any
person against Lessor for loss of, or damage or injury to, person or property,
caused by an act, fault, omission, or neglect of Lessee or any person on or
about the Premises with Lessee's consent, actual or implied, including, without
limitation, any employee, agent, or invitee of Lessee. Lessor shall not be
liable to Lessee for any latent defect in the Premises or for any injuries to
person or damage to property sustained while in, on, or about the Premises from
any cause whatsoever other than the active negligence of Lessor, its agents or
employees; and Lessor will not be responsible for money, jewelry, or personal
property of any kind lost or stolen in the Premises, nor for damage to Lessee's
property caused by bursting and leaking pipes in the Premises or the Building,
unless Lessee shall have notified Lessor in writing of an existing defect in
said pipes and the Lessor shall have had a reasonable time in which to repair
the same.
11. ASSIGNMENT. Lessee shall not have the right to assign this Lease,
or any interest herein, nor to sublet the Premises, or any part thereof,
without the prior written consent of Lessor, which shall not be unreasonably
withheld.
12. QUIET ENJOYMENT. Lessee hereby covenants and agrees to pay all
rental reserved hereunder at the times and in the manner herein provided, and
to fully and faithfully comply, perform, and abide by each and every term
stipulation, and agreement herein contained; and upon the said faithful
compliance Lessee shall have peaceable and undisturbed possession of the
Premises during the term aforesaid without let or hindrance from any person
whomsoever lawfully claiming the same.
13. FIXTURES. Lessee may install or affix to the Premises such
equipment and trade fixtures as are reasonably necessary for the conduct of
Lessee's business operations therein with the Lessor's prior written consent;
and upon termination of this Lease for any reason other than Lessee's default,
Lessee may remove the same provided that after such removal Lessee restores the
Premises at Lessee's expense to the same condition as existed prior to the
installation of such equipment or fixtures. It is understood and agreed,
however, that any floor coverings, water fountain, stove, or other appurtenants
attached to the floor or any part of the Premises by Lessee shall at the
termination of this Lease or any renewal thereof, remain the property of Lessor
and shall not be removed unless Lessor requests Lessee to remove same to be
notified at initial approval. Lessee shall promptly pay and discharge and shall
indemnify and hold Lessor harmless of and from, all tangible personal property
taxes and assessments now or hereafter taxed, assessed, imposed, or levied by
any lawful authority against or upon any fixtures, equipment, or personal
property located in the Premises during the term of this Lease.
14. UTILITIES. Lessor agrees, while Lessee is not in default under
this Lease, to furnish the Premises with air conditioning and heat during the
appropriate seasons (not to exceed temperatures prescribed by any energy
conservation regulations or orders of any governmental authority having
jurisdiction thereof), a reasonable supply of water for lavatory and drinking
purposes, reasonable electrical service for standard office use and machines,
and elevator service for passengers. All of the foregoing shall be furnished
only during the hours from 8:00 a.m. to 6:00 p.m., Monday through Friday,
except legal holidays. Lessor agrees to furnish reasonable janitorial service
for the Premises five days per week. Lessor, however, shall not be liable for
failure to furnish any of the foregoing, whether such failure is caused by
conditions beyond the control of Lessor or by accidents, repairs, or strikes,
or otherwise; nor shall such failure constitute a breach of the terms of this
Lease on the part of Lessor; nor shall Lessor be liable under any circumstances
for loss of or injury to person or property, however occurring through or in
connection with or incidental to the furnishing of any of the foregoing. In
connection with the furnishing of said services, Lessee shall permit Lessor and
his agents to enter into or upon the Premises at all times in connection with
said services and for the purpose of inspecting the Premises or to make
repairs, alterations, or additions. Lessee shall pay, discharge, defend,
indemnify, and hold Lessor harmless of and from all charges for telephone
service, electrical service for computers and similar machines, gas, and all
other utilities used in connection with the Premises not provided by the Lessor.
15. EXPENSE. (a) As additional rental, Lessee hereby covenants and
agrees to pay to Lessor on January 1 of the calendar year immediately following
the year during which the initial term of this Lease commences, Lessee's pro
rata share of the sum of the following:*
(1) The amount by which the Taxes, as hereinafter defined, for
the calendar year in which the initial term of the Lease commences exceed
$ 1996 Base Year grossed up to reflect 90% occupancy (hereinafter called
the "Base Annual Tax Rate"). As used in this Paragraph, the term "Taxes" means
the aggregate amount of real property taxes and assessments taxed, assessed,
imposed, or levied by any lawful authority upon the Land and the Building in any
calendar year during the term of this Lease.
(2) The amount by which the Operating Expenses, as hereinafter
defined, for the calendar year in which the initial term of this Lease
commences exceeds $ 1996 Base Year grossed up to reflect 90% occupancy
(hereinafter called "the Base Annual Operating Expense Rate"). See Exhibit "C".
SEE ALSO ADDENDUM.
(b) Commencing on January 1 of the calendar year following the
year during which the initial term of this Lease commences, and continuing on
the first day of each calendar month thereafter until the expiration or other
termination of this Lease, Lessee shall pay to Lessor as additional monthly
rental an amount equal to one-twelfth of the Lessee's pro rata share of the sum
of: (1) The excess of the Taxes for the Preceding calendar year over the Base
Annual Tax Rate; and (2) the excess of Operating Expenses for the preceding
calendar year over the Base Annual Operating Expense Rate. In the event that
Lessor has not advised Lessee on or before January 1 of any calendar year of
such pro rata share, as hereinafter provided. Lessee shall continue to make
monthly payments to Lessor in any amount equal to one-twelfth of Lessee's pro
rata share for the last year in which Lessee has been so advised. At the end of
each calendar year following the year in which the initial term of this Lease
commences, through and including the end of the calendar year in which the
expiration or other termination of this Lease occurs. Lessor shall calculate
the actual excesses of Taxes and Operating Expenses for such year over the Base
Annual Tax Rate and the Base Annual Operating Expense Rate, respectively and
shall advise Lessee in writing of the Lessee's pro rata share of such excesses.
In the event that the amount of additional monthly rental collected under this
Paragraph 15 for the preceding twelve-month period is less than such actual
excesses for said year. Lessee shall remit the balance thereof to the Lessor
within ten (10) days after the receipt of such notice. In the event that the
amount of additional monthly rental collection hereunder for the preceding
twelve-month period is greater than the actual excesses for such year, Lessor
shall remit the difference to the Lessee along with said notice within ten (10)
days.
* Should the closing of Lessor's books not allow the presentation of Lessee's
pro rata share by January 1, Lessee agrees that Lessor may present Lessee's pro
rata share retroactive to January 1 upon closing of the books. Lessor will use
all diligence to prepare xxxxxxxx in a timely fashion.
14
15. LESSOR'S WORK. Lessor agrees to furnish and install as per Lesser's
drawings in the Premises those items described in the schedule attached hereto
as in Exhibit "B" and made a part hereof:
Landlord agrees to perform the following at Landlord expense:
a) Remove all wallcovering
b) Paint suite
c) Install new mini blinds in executive office and remove overhead
lighting fixture
d) Install lower cabinet with formica counter and cold water sink
e) Install VCT in supply room
f) Install magnetic keypad entrance system with intercom
g) Install three (3) dedicated duplex outlets
h) Make ceiling tile uniform
i) Keep existing chair railing and wood base and add wood base for
new walls only
j) Install vinyl base in storage area
k) Remove upper cabinet in training area
l) Install water line for refrigerator
m) Buildout per layout
17. MOVING No furniture may be moved in or out of the building without
prior consent of Lessor. Arrangements for moving must be made with Lessor's
office and must be supervised by Lessor's representative. Lessee agrees to pay
for any and all damages to any part of the Building or Premises because if such
moving, by either Lessee, his agents or movers. No moving shall be permitted
between the hours at 8:00 a.m. and 5:00 p.m., Monday through Friday.
18. INSURANCE TO BE MAINTAINED BY LESSEE. Lessee shall Insure all its
properly in the demised premises against damage by fire, including extended
coverage, in any amount as determined by Lessor in consultation with Lessee. The
Lessee shall also maintain at its expense, throughout the Term. Insurance
against loss of liability in connection with bodily injury, death, property
damage and destruction occurring within the Premises or arising out or the use
thereof by the Lessee or its agents, employees, officers, or invitees, visitors
and guests under one or more policies or general public liability insurance
having such limits as to each as are reasonably required by the Lessor from time
to time (but in no event loss than (a) One Million Dollars (1,000,0000.00) for
injury to or death of any one or more persons during any one occurrence and
(b) Five Hundred Thousand Dollars ($500,000.00) for property damage or
destruction during any one occurrence. Such policies shall provide that they
shall not be cancellable without at least thirty (30) days prior written notice
to the Lessor (and, at the request of Lessor, any mortgagee), and shall be
issued by Insurers of recognized responsibility licensed to do business in
Florida.
19. WAIVER OF SUBROGATION. If either party hereto is paid any proceeds
under any policy of Insurance naming any party as an Insured, on account of such
loss, damage or liability, then such party hereby releases, the other party
hereto, to and only the extent of the amount of such proceeds, from any and all
liability for such loss, damage or liability, notwithstanding that such loss,
damage or liability, xxx arise out of negligent or intentionally tortious act or
omission of the other party, its agents or employees, provided that such release
shall be effective only with respect to loss or damage occurring during such
times as the appropriate policy of insurance of the releasing party provides
that such releases shall not impair the effectiveness of such policy or the
Insured's ability to recover thereunder. Each party shall use the reasonable
efforts to have a clause to such effect included in its said policies, and shall
promptly notify the other in writing if such clause cannot be included in any
policy.
20. PARKING AREAS. Lessor agrees to provide and maintain for the use of
Lessee, In common with others, the parking area adjacent to the leased
premises. The lessor reserves the right to, exclusively for the use of the
tenants, promulgate reasonable rules and regulations relating to the use of
such parking area, including assignment of specific parking areas exclusively
for the use of certain tenant, and such limitations as may in the opinion of
the Lessor be necessary and desirable. Lessee and Lessee's employees shall park
their cars only in those portions of the parking area designated for that
purpose by the Lessor. Further, Lessee and its employees are expressly
prohibited from parking in any portion of the parking area designated or marked
for visitors parking only. Anything in this paragraph to the contrary,
notwithstanding, Lessee shall not be entitled to use any covered parking area
without first entering into a separate parking agreement with respect thereto
and paying fees required thereby.
21. ESTOPPEL CERTIFICATES. Lessee agrees, at any time and from time to
time, upon not five (5) days prior written notice by Lessor, to execute,
acknowledge and deliver to the Lessor or its designatee a statement in writing
certifying (i) that this lease is unmodified and in full force and effect or
if modified, that the lease is in full force and effect and stating date of
such modifications, (ii) the dates to which rent and other changes hereunder
have been paid by the Lessee, (ii) the amount of any prepaid rent or credit due
to the Lessee hereunder (iv) that the Lessee has accepted possession of the
leased premises and the date on which the Term commenced, (v) whether, to the
best knowledge of the Lessee, the Lessor is ten in default in the performance
or any of its obligations, hereunder, and, if so, specifying the nature of each
default, and (vi) as to any other fact or condition reasonably requested by the
Lessor or first mortgagee or prospective first mortgagee or purchaser of any
or all Lessor's interests, or any assignee or prospective assignee of any
interest of Lessor under this Lease.
22. HOLDING OVER. The Lessee shall not continue to occupy the Premises
after the expiration or earlier termination of the term or any renewal thereof,
unless the Lessor consents in writing to such continuation of occupancy, in
which event (i) such occupancy shall unless the parties hereto otherwise agree
in writing (be deemed to be under a month-to-month tenancy, which shall
continue until either party hereto notifies the other in writing, by at least
fifteen (15) days before the end of any rent paying period. In which event
such tenancy shall so terminate, (ii) anything contained in the foregoing
provisions of this section to the contrary, notwithstanding, the rental payment
with respect to each such monthly period shall equal one twelfth (1/12) of the
base rent and the additional rent payable under the provision of Section 15
(calculated in accordance of such of Section 15 as if this lease had been
renewed for a period of twelve (12) full calendar months after such expiration
or earlier termination of the Term or such renewal), and (iii) such
month-to-month tenancy shall be upon the same terms and subject to the same
conditions as those set forth in the provision of this Lease; provided that if
Lessor gives to the Lessee, by at least fifteen (15) days before the end of any
rent paying period during such month to month tenancy, written notice that such
terms and conditions (including any thereof relating to the amount and payment
of rent) shall, after such month, be modified in any manner specified in such
notice, then tenancy shall, after such period, be upon the terms and subject to
the said conditions as so modified.
23. APPLICABLE LAW. This lease shall be given effect and construed by
application of the law of Florida, and any action or proceeding arising
hereunder shall be brought in the courts of Florida: provided that if any such
action or proceeding arises under the constitution, laws or treaties of the
United States of America, or if there is a diversity of citizenship between the
parties hereto, so that it may be brought in the, United States District Court,
it may be brought in the United States District Court for the District of
Florida.
24. SEVERABILITY. No determination by any court governmental body or
otherwise that any provision of this Lease or any amendment hereof is invalid
or enforceability of a) any other such provision, or b) such provision in any
circumstance not controlled by such determination. Each such provision shall be
valid and enforceable to the fullest extent allowed by, and shall be construed
wherever possible as being consistent with applicable law.
15
25. NO JOINT VENTURE. Any intention to create a joint venture or a
partnership relation between the parties hereto is hereby expressly disclaimed.
26. LESSOR'S REVERSION. Lessee agrees that this Lease shall at all
times be subject to a subordinate to the lien of any and all first mortgages
now or hereinafter placed by Lessor on the Premises, the Building, or the Land;
and Lessee agrees from the time to time to execute, to acknowledge, and deliver
any instrument of subordination required by any first mortgagee of the
Premises, the Building or the land. Upon the transfer of any or all of the
Lessor's interest in this Lease, or any or all of the Lessor's interest in the
Land, or both, regardless of whether such transfer is characterized as
voluntary or by operation of law, conditional or unconditional, absolute or as
security for performance of an obligation, Lessee agrees to execute,
acknowledge, and deliver to such a transferee, upon demand, any and all
instruments of attornment required by such transferee. Lessee additionally
agrees to execute and deliver to such transferee, either prior to or
simultaneously with such transfer, a signed writing acknowledging the status of
this Lease. Upon the absolute transfer of the reversion to any party the person
executing this Lease as Lessor shall thereupon be relieved of any and all
further obligation to Lessee hereunder.
27. NOTICES. Any notices or demand required under this Lease or by law
shall be in writing and shall be deemed to have been delivered when mailed by
registered or certified mail, return receipt requested, with sufficient postage
affixed and addressed to Lessee at the Premises and to Lessor at X.X. Xxx 00000
Xxxxx, Xxxxxxx 00000. Such addresses may be changed by written notice as
provided in this Paragraph. Lessee hereby waives the giving of any and all
statutory notices that may be required under the laws of the State of Florida.
28. CONDEMNATION. If all or any portion of the Premises is condemned
for any public use or purpose by any legally constituted authority with the
result that the same are no longer reasonably suitable for Lessee's continued
use thereof, then Lessee shall have the option of cancelling this Lease, and
rent shall be accounted for between Lessor and Lessee of the date of taking.
In the event of condemnation of the Premises, the Building, or the Land, or any
portion thereof, Lessor shall be entitled to all compensation to be paid by the
condemning authority, Lessee may pursue any claim Lessee may have for business
interruption or moving expenses, provided said claim does not diminish the
Lessor's award.
29. RENEWAL. Provided that no default is then existing or continuing
in the performance of any of the terms or covenants of this Lease, Lessor
hereby grants Lessee the option of renewing and extending the term of this
Lease for one additional term of three years, commencing at midnight on the
expiration of the initial term of the Lease, upon such terms and conditions as
are mutually agreed upon in writing by the parties hereto. In the event Lessor
and Lessee are unable to reach a mutual written agreement as to all such terms
and conditions prior to the expiration of the initial term of this Lease, the
Option herein granted shall be deemed null and void. The renewal option herein
granted shall be exercised by notifying Lessor in writing at least ninety (90)
days prior to the expiration of the initial term of this Lease.
30. INTEGRATION, MODIFICATION, AND WAIVER. This instrument contains
all the agreements and conditions made between the parties hereto and may not
be modified, changed, or terminated, in whole or in part, orally, or in any
other manner than by an agreement in writing, signed by all parties hereto or
their respective successors in interest. The receipt of rent by Lessor with
knowledge of any breach of this Lease by Lessee or of any default on the part
of Lessee in the observance or performance of any of the conditions or
covenants of this Lease, shall not be deemed to be a waiver of any provision of
this Lease. No waiver of any default on the part of Lessee nor any extension of
time by Lessor to Lessee for any purpose whatsoever shall be held or deemed to
be a waiver of any of the terms of this Lease or any default thereafter
occurring, and no termination of this Lease in any manner shall affect the
rights of the parties against each other as of the time of such termination. If
Lessee makes any payment of any amount less than that due hereunder Lessor
without notice may accept the same as a payment on account; the Lessor shall
not be bound by any notation on any check involving such payment nor any
statement in any accompanying letter. No failure on the part of Lessor to
enforce any covenant or provision herein contained, nor any waiver of any right
hereunder by the Lessor, unless in writing, shall discharge or invalidate such
covenant or provision or affect the right of Lessor to enforce the same in the
event of subsequent breach or default. The receipt by Lessor of any rent or
other sum of money or any other consideration hereunder paid by Lessee after
the termination, in any manner, of the term herein demised, or after the giving
by Lessor of any notice hereunder to effectuate such termination, shall not
reinstate, continue, or extend the term herein demised, or destroy, or in any
manner impair the efficacy of any such notice or termination as may have been
given hereunder by Lessor to Lessee prior to the receipt of any such sum of
money or other consideration, unless so agreed to in writing and signed by the
Lessor. Neither the acceptance of keys nor any other act or thing done by
Lessor, its agents or employees, during the term herein demised shall be deemed
to be an acceptance of a surrender of the Premises, excepting only an agreement
in writing signed by the Lessor accepting or agreeing to accept such a
surrender. Any right herein granted to the Lessor to terminate this Lease shall
apply to any extension or renewal of the term herein demised, and the exercise
of any such right during the term herein demised shall terminate any extension
or renewal of the term herein demised, and any right on the part of Lessee
thereto. No act or conduct of any nature or character on the part of Lessor,
its agents or employees, other than an agreement in writing signed by the
Lessor, shall be construed as a waiver of the provision of this paragraph
irrespective of any circumstances existing at the time of such act or conduct.
Regardless of any other understanding this Lease is not to be considered
effective until fully executed by both Lessor and Lessee.
31. INTERPRETATION. The covenants herein contained shall bind, and the
benefits hereof inure to, the respective heirs, personal representatives,
successors, and assigns of all parties hereto, jointly and severally. Unless
the context requires otherwise, the singular shall be construed to include the
plural and vice versa. The paragraph headings used herein are for indexing
purposes only and are not to be used in interpreting or construing the terms of
this Lease.
32. RIGHT TO RELOCATE. See Exhibit "F".
IN WITNESS WHEREOF, Lessor and Lessee have caused this instrument to
be duly executed as of the date first hereinabove set forth.
Signed, sealed, and delivered
in the presence of:
XXXXXXXX BEELLS By: EDGEWOOD GENERAL PARTNERSHIP (SEAL)
----------------------------------- -------------------------------------
XXXXXX XXXXXXX Attest: XXXXXX X. ??????
----------------------------------- --------------------------------
Witnesses as to Lessor "LESSOR"
XXXXXX X. XXXXXX NOVACARE, INC. (SEAL)
----------------------------------- -------------------------------------
XXXXX BRUMLACH By: ?????????????????
----------------------------------- -------------------------------------
Witnesses as to Lessor "LESSEE"
NAME TYPED: Xxxxxx X. Xxxxx, Xx.
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TITLE: CEO
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