EXHIBIT 10.1
LEASE AGREEMENT
between
ONE TURNBERRY PLACE ASSOCIATES,
a Florida general partnership
LANDLORD,
and
MEDICAL MAKEOVER CORP. OF AMERICA, INC.,
a Florida corporation,
TENANT
INDEX TO LEASE
Paragraph Caption Page
1. PREMISES AND TERM.......................................................4
2. BASE RENTAL ADJUSTMENT..................................................5
3. OPERATING EXPENSES......................................................5
4. ALL PAYMENTS DEEMED RENT...............................................11
5. USE....................................................................11
6. UNUSUAL EQUIPMENT......................................................12
7. TENANT TO TAKE GOOD CARE OF PREMISES...................................12
8. COMPLIANCE WITH DIRECTIVES OF AUTHORITIES..............................12
9. ALTERATIONS AND IMPROVEMENTS...........................................12
10. INSPECTION, EXAMINATION AND ENTRY......................................13
11. NO LIABILITY...........................................................13
12. DAMAGE BY FIRE OR OTHER CASUALTY.......................................13
13. CONDEMNATION...........................................................14
14. NO ABATEMENT...........................................................15
15. SERVICES...............................................................15
16. ABANDONMENT............................................................16
17. DEFAULT AND REMEDIES...................................................16
18. ASSIGNMENT OR SUB-LETTING OF TENANT'S INTEREST.........................19
19. COLLECTION OF RENT FROM OTHERS.........................................20
20. INFORMATION AS TO SUB-TENANTS..........................................20
21. RELOCATION.............................................................20
22. RIGHT OF LANDLORD TO USE ENTRANCES,....................................21
ETC. AND TO CHANGE SAME................................................21
23. ATTORNEYS' FEES........................................................21
24. EXAMINATION OF PREMISES AND............................................21
NO ORAL REPRESENTATION.................................................21
25. SUBORDINATION..........................................................21
26. HOLDING OVER...........................................................22
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27. CERTIFICATE BY TENANT..................................................22
28. REMEDIES CUMULATIVE....................................................22
29. NO WAIVER OF PERFORMANCE...............................................23
30. AGREEMENT TO INDEMNIFY.................................................23
31. NOTICES................................................................24
32. SURRENDER AT EXPIRATION OF THE TERM....................................24
33. RULES AND REGULATIONS..................................................24
34. SIGNS..................................................................24
35. IMPROVEMENTS BY TENANT.................................................25
36. IMPROVEMENT OF THE DEMISED PREMISES....................................25
37. LANDLORD'S INTEREST NOT SUBJECT TO.....................................25
MECHANICS LIENS AND REMOVAL OF LIENS...................................25
38. SECURITY...............................................................26
39. QUIET POSSESSION AND OTHER COVENANTS...................................27
40. COMMON AREAS...........................................................27
41. BROKER.................................................................27
42. TRANSFER BY LANDLORD...................................................28
43. TIME...................................................................28
44. COPIES OF LEASE........................................................28
45. SUCCESSORS.............................................................28
46. CONSTRUCTION, APPLICABLE LAW...........................................28
47. JOINDERS...............................................................28
48. ENTIRE AGREEMENT.......................................................28
49. TYPEWRITTEN AND HANDWRITTEN PROVISIONS.................................29
50. TENDER AND DELIVERY OF LEASE INSTRUMENT................................29
51. NO PARTNERSHIP.........................................................29
52. PARKING................................................................29
53. LEASE NOT TO BE RECORDED...............................................30
54. MISCELLANEOUS..........................................................30
55. EXHIBITS. . . . . .....................................................30
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EXHIBIT "A" - Net Rentable Area and Common Area Definitions
EXHIBIT "B" - Plans
EXHIBIT "C" - Rules and Regulations
Security Deposit Receipt
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made and entered into between One Turnberry
Place Associates, a Florida general partnership ("Landlord"), and Medical
Makeover Corp. of America, Inc., a Florida corporation ("Tenant").
W I T N E S S E T H:
1. PREMISES AND TERM
(a) Demised Premises. Landlord hereby demises and lets unto Tenant, and
Tenant hereby hires and takes from Landlord subject to the terms and conditions
hereof the premises outlined on the Plan(s) attached hereto as Exhibit "A" on
the 4th Floor, Suite 403 (the "Premises", "Demised Premises" or "Leased
Premises"), in the project known as One Turnberry Place located at 00000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000, Dade County, Florida (the
"Building") comprising of approximately 1,151 square feet of Net Rentable Area
(the rentable area of the Premises and the Building have been determined by
Landlord's architects based on the B.O.M.A. method, as described in Exhibit "B"
attached hereto and made a part hereof).
(b) Term. Subject to and upon the terms and conditions set forth herein, or
in any exhibit or addendum hereto, this Lease shall continue in force for a term
of thirty-six (36) months, beginning three (3) business days following the date
Landlord delivers the Demised Premises to Tenant(the "Commencement Date").
In the event the Leased Premises should not be ready for occupancy by the
Commencement Date, for any reason, Landlord shall not be liable or responsible
for any claims, damages or liabilities in connection therewith or by reason
thereof, and the term of the Lease shall commence at the time that the Leased
Premises are ready for occupancy by Tenant, as agreed upon by Landlord and
Tenant or as certified by Landlord's Architect in the absence of such agreement.
Landlord and Tenant will, at the written request of either, execute a
declaration specifying the specific beginning date of the term of this Lease and
the expiration date of the term of this Lease.
(c) Base Rent. Rent shall be payable annually in the amount of Twenty and
00/100 Dollars ($20.00), times the Net Rentable Area of the Premises in lawful
money of the United States (the "Base Rent" or "Base Rental") which Tenant
covenants to pay to Landlord at its principal office, or that of its agent, or
at any other place designated in writing by Landlord in equal monthly
installments of One Thousand Nine Hundred Eighteen and 33/100 Dollars
($1,918.33) in advance on the first day of each and every month during the said
term, as the same may be adjusted under the terms of Paragraph 2 of this Lease.
If the Commencement Date and the Tenant's obligation to pay Rent begin on a day
other than the first day of a month, then the term of the Lease shall commence
on the first day of the following month. The Tenant shall pay the Base Rent and
any Additional Rent (as defined herein) for the fractional month preceding the
first day of
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the month subsequent to the Commencement Date on a per diem basis (calculated on
the basis of a thirty day month) payable when the Tenant takes occupancy of the
Premises. Tenant shall pay the Rent herein provided without deduction,
diminution or setoff. Unpaid Rent and all other payments to be made by Tenant to
Landlord shall bear interest at the highest legal rate permitted under the Laws
of the State of Florida from the date due until paid. Tenant agrees to pay to
Landlord any sales or use tax or excise tax now or hereafter imposed or levied
against any Rent or any other charge or payment hereafter required to be made by
Tenant by any governmental agency having jurisdiction thereover simultaneously
with the payment of the Base Rent or adjusted Base Rent. The land on which the
Building is located is hereinafter referred to as the "Land" and which is leased
to Landlord pursuant to a ground lease as defined in Article 39 below. All
dimensions are approximate only. Landlord reserves the right to change the size,
layout and location of any buildings or common areas and facilities as well as
to reduce or expand the size of the Building and/or erect additional buildings
upon the Land.
(d) Late Charge. If Tenant shall fail to pay any installment of Base Rent,
as adjusted, or any item of additional rent within five (5) [1] days after the
date the same becomes due and payable, then Tenant shall pay to Landlord a late
payment service charge (hereinafter referred to as "Late Charge") covering
administrative and overhead expenses equal to the greater of (a) [2], or (b)
five cents ($.05) per each dollar so overdue. The provision herein for the
payment of the Late Charge shall not be construed to extend the date for payment
of any sums required to be paid by Tenant hereunder or to relieve Tenant of its
obligations to pay all such sums at the time or times herein stipulated.
(e) Bounced Check Charge. If Tenant submits any check for payment to
Landlord that is returned from the bank due to non sufficient funds in Tenant's
bank account, Tenant shall pay Landlord a bounced check service charge
(hereinafter referred to as the "Bounced Check Charge") covering Landlord's
administrative and overhead expenses equal to [3].
2. BASE RENTAL ADJUSTMENT
(a) The Base Rent provided for in Paragraph 1 shall, at the commencement of
the second lease year, as hereinafter defined, and each lease year thereafter,
increase as follows:
Period Annual Base Rent Monthly Base Rent
------------ ---------------- -----------------
Months 13-24 $24,171.00 $2,014.25
Months 25-36 $25,322.00 $2,110.17
(b) "Lease Year" as used in this Lease, shall mean, for the first lease
year, a period of twelve (12) consecutive calendar months from the Commencement
Date, except that if such Commencement Date shall be other than the first day of
a calendar month, the first lease year shall be the period from the Commencement
Date to the end of the calendar month in which it shall occur, plus the
following
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[1] business
[2] One Hundred Fifty and 00/100 Dollars ($150.00)
[3] One Hundred Fifty and 00/100 Dollars ($150.00)
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twelve (12) months. Each lease year after the first shall be a successive period
of twelve (12) months.
3. OPERATING EXPENSES
For the purposes of this Lease:
(a) The term "Tenant's Proportionate Share" shall be deemed to be 0.83%;
calculated by dividing the Net Rentable Area of the Premises by the Net Rentable
Area of the Building.
(b) The term "Operating Expenses" shall mean all costs of operation and
maintenance of the Land and Building (including Common Areas as defined in
Exhibit "B") and the Premises and appurtenances, as determined by standard
accounting practices and shall include the costs incurred by Landlord for wages
and salaries paid by Landlord to all persons engaged in the normal operation,
maintenance and repair of the Building and Land, including:
(i) Social Security taxes, Unemployment Insurance taxes, other
provisions imposed by law and so-called "fringe-benefits" incurred by
Landlord under the provisions of any collective bargaining agreement;
(ii) repairs to, replacement of and maintenance of the Land, the
Building and its equipment and appurtenances and additions and improvements
required by law to the extent they are capital expenditures which reduce
Operating Expenses; and the cost of supplies, materials, tools, and
property maintenance equipment used in connection therewith;
(iii) premiums, deductibles or casualty loss and other charges
incurred by Landlord with respect to insurance of all kinds which may be
reasonably necessary and which Landlord in good faith pays and incurs
relating the Land and Building;
(iv) costs incurred for fuel or other energy for heating and operating
the air conditioning system for the Building, for telephone, electricity,
steam, or power required in connection with the operation of the Building
and Land, including, but not limited to, costs incurred in supplying
electricity to the Common Areas of the Building, the Premises and the Land;
(v) costs incurred in connection with inspection and servicing of the
Land and Building, its appurtenances and equipment;
(vi) water charges and sewer rents not specifically paid for by the
Tenant or other tenants;
(vii) the cost or portion thereof properly allocable to the Building
(amortized over such reasonable period as Landlord shall determine together
with interest at two points over the published prime rate in effect at The
Bank of New York on December 31 of the then current year on the unamortized
balance) of any capital improvement or other alterations required by
government regulations or by law intended to reduce the energy consumption
or other Operating Expenses of the Building;
(viii) all real or personal property taxes (or payments in lieu of
such taxes), excises, levies, fees, or charges, general and special,
ordinary and extraordinary, unforeseen as well as
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foreseen, of any kind which are assessed, levied, charged, confirmed, or
imposed by any public authority upon the property, its operations or the
public authority upon the property, its operations or the Rent provided for
in this Lease. (It is agreed that Tenant will be responsible for ad valorem
taxes on its personal property and on the value of Tenant's leasehold
improvements). Property taxes (both real and personal) are generally not
known until October of each year. For budgeting purposes and determining
the proper amount of taxes for purposes of estimating the Operating
Expenses for the next calendar the Landlord shall use an estimated amount
based upon one hundred ten percent (110%) of the previous year's actual tax
bills or such other amount as Landlord may otherwise reasonably determine
appropriate. An adjustment from the estimated amount to the actual tax
bills shall be made in the month in which the actual tax bills are
received;
(ix) amounts reasonably required by Landlord necessary to repair or
replace the various components of the Common Areas (as hereinafter defined)
including without limitation pavement, machinery, equipment and other
capital components of the Common Areas;
(x) professional fees including without limitation, engineering, legal
and accounting fees; and
(xi) any other expenses, direct or indirect, incurred by Landlord in
connection with the operation, maintenance and repair of the Land and
Building or the Premises, its appurtenances and equipment and Landlord's
fulfilling of its obligations hereunder.
(xii) management fees which shall be based upon fifteen percent of the
total Operating Expenses;
(xiii) janitorial service for the Common Areas and the Premises;
(xiv) costs associated with maintaining security for the building and
Common Areas;
(xv) costs of window cleaning, interior plant maintenance, security,
energy management, elevator and service agreements for the Land and
Building and the equipment and fixtures therein and thereon, and the cost
of all supplies, signs, directories, materials, tools and equipment used in
connection therewith;
(xvi) charges payable by Landlord in connection with any covenant,
declaration or reciprocal operating agreement affecting the Land or
Building; and
(xvii) costs associated with providing valet parking.
Operating Expenses shall be "net" only, and for that purpose shall be
deemed reduced by the amounts of any insurance reimbursement, other
reimbursement, recoupment, payment, discount, credit, reduction or allowance
received by Landlord in connection with such Operating Expenses.
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Notwithstanding anything contained herein and without limiting the
generality of the foregoing, the following costs shall not be included in
Operating Expenses;
(i) any leasing commissions;
(ii) payments of principal and interest on any mortgages or other
encumbrances upon the Building or Land;
(iii) capital improvements, additions or reconstructions other than
those intended to reduce the energy consumption or other Operating Expenses
of the Building or those required by governmental regulation or by law;
(iv) utilities furnished directly to Tenant and paid for directly by
Tenant or another tenant of the Building;
(v) additional suite maintenance or repairs directly billed and paid
for by Tenant or another tenant of the Building;
(vi) depreciation of the Building;
(vii) expense of operating and maintaining Landlord's own offices in
the Building;
(viii) other tenants personal property taxes;
(ix) costs incurred by Landlord with respect to goods and services
(including utilities sold and supplied to tenants and occupants of the
Building) to the extent that Landlord is entitled to reimbursement for such
costs other than through the Operating Expense pass-through provisions of
such tenant leases;
(x) costs incurred by Landlord for repairs, replacements and/or
restoration to or of the Building or Common Areas to the extent that
Landlord is reimbursed by insurance or condemnation proceeds or by tenants,
warrantors or other third persons;
(xi) costs, including cost of plans, construction, permit, license and
inspection costs, incurred with respect to the installation of tenant
improvements made for other tenants in the Building or incurred in
renovating or otherwise improving, decorating, painting or redecorating
vacant space for tenants or other occupants of the Building;
(xii) attorney's fees and other costs and expenses incurred in
connection with the negotiations or disputes with present or prospective
tenants or other occupants of the Building other than Tenant;
(xiii) costs of a capital nature, including, without limitation,
capital improvements, capital replacements, capital repairs, capital
equipment and capital tools, all as determined in accordance with generally
accepted accounting principles, consistently applied;
(xiv) brokerage commissions, tenant incentives, finders' fees,
attorneys fees, advertising expenses, entertainment and travel expenses and
other costs incurred by Landlord in leasing or attempting to lease space in
the Building;
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(xv) interest on debt or amortization on any mortgage or mortgages
encumbering the Building or common areas;
(xvi) Landlord's general corporate overhead;
(xvii) rental payments incurred in leasing air conditioning systems,
elevators or other equipment ordinarily considered to be of a capital
nature, except operating/maintenance equipment not affixed to the Building
or common areas which is used in providing janitorial or similar services;
(xviii) costs of installing the initial landscaping and the initial
sculpture, paintings and objects of art for the Building and Common Areas;
(xix) advertising and promotional expenditures;
(xx) costs incurred to correct any defect in the original construction
of the Building or Common Areas;
(xxi) repairs, alterations, additions, improvements or replacements
made to rectify or correct any defect in the design, materials or
workmanship of the Building or Common Areas;
(xxii) repairs or replacements covered by warranties or guaranties to
the extent of service or payment thereunder;
(xxiii) damage and repairs of a capital nature to the Common Areas
attributable to condemnation, fire or other casualty, and damage and
repairs of a non-capital nature to the Common Areas attributable to
condemnation, fire or other casualty to the extent of awards or insurance
proceeds received by Landlord;
(xxiv) damage and repairs necessitated by the negligence or willful
misconduct of Landlord or Landlord's employees, contractors or agents;
(xxv) executive salaries or salaries of service personnel (including
the Building superintendent) to the extent that such service personnel
perform services other than in connection with the management, operation,
repair or maintenance of the Building or Common Areas;
(xxvi) accountants' fees and other expenses associated with the
enforcement of any leases or defense of Landlord's title to or interest in
the Building;
(xxvii) services furnished to some tenants which are not furnished to
Tenant; and
(xxviii) any other expenses which would not be considered a normal
Operating Expense for similar owner-managed first-class high-rise office
buildings. There shall not be included in Operating Expenses any costs in
excess of those that would be reasonably incurred by prudent owners, and
their operators and managers, of similar first-class office buildings.
Landlord shall not collect in excess of one hundred percent (100%) of all
Operating Expenses.
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For each year during the term of this Lease, Tenant shall pay ("Tenant's
Operating Payment") to Landlord as Additional Rent a sum equal to Tenant's
Proportionate Share of Operating Expenses adjusted to reflect the greater of
ninety-five percent (95%) of the Net Rentable Area of the Building or the total
Net Rentable Area leased in the Building.
Landlord shall furnish to Tenant, prior to the commencement of each
calendar year a written statement setting forth Landlord's estimate of Tenant's
Operating Payment for such calendar year, and the method of calculation of
Tenant's Operating Payment for such calendar year. Tenant shall pay to Landlord
on the first day of each month during such calendar year an amount equal to
one-twelfth (1/12th) of Landlord's estimate of Tenant's Operating Payment for
such calendar year. If, however, Landlord shall furnish any such estimate for
any calendar year subsequent to the commencement thereof, then (a) until the
first day of the month following the month in which such estimate is furnished
to Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this Paragraph 3 in
respect of the last month of the preceding calendar year; (b) promptly after
such estimate is furnished to Tenant or together therewith, Landlord shall give
notice to Tenant stating whether the installments of Tenant's Operating Payment
previously made for such calendar year were greater or less than the
installments of the Tenant's Operating Payment to be made for such calendar year
in accordance with such estimate, and (i) if there shall be a deficiency, Tenant
shall pay the amount thereof within ten (10) days after demand thereof, or (ii)
if there shall have been an overpayment, Landlord, at Landlord's option, shall
either refund to Tenant the amount thereof or permit Tenant to credit the amount
thereof against subsequent payments under this Paragraph; and (c) on the first
day of the month following the month in which such estimate is furnished to
Tenant, and monthly thereafter throughout the remainder of such calendar year,
Tenant shall pay to Landlord an amount equal to one twelfth (1/12th) of Tenant's
Operating Payment shown on such estimate. Landlord may at any time or from time
to time furnish to Tenant a revised statement of Landlord's estimate of Tenant's
Operating Payment for such calendar year, and in such case, Tenant's Operating
Payment for such calendar year shall be adjusted and paid or refunded, as the
case may be, substantially in the same manner as provided in the preceding
sentence.
After the end of each calendar year Landlord shall furnish to Tenant a
Landlord's Statement for such calendar year. Each such year- end Landlord's
Statement shall set forth in reasonable detail and compute the Operating
Expenses as prepared by a certified public accountant or managing agent
designated by Landlord from which Landlord shall make the computation of
Operating Expenses hereunder. If the Landlord's Statement shall show that the
sums paid by Tenant under this Paragraph exceeded Tenant's Operating Payment
paid by Tenant for such calendar year, Landlord shall either refund to Tenant
the amount of such excess or permit Tenant to credit the amount of such excess
against subsequent payments under this Paragraph; and if the Landlord's
Statement for such Lease Year shall show that the sums so paid by Tenant were
less than Tenant's Operating Payment paid by Tenant for such calendar year,
Tenant shall pay the amount of such deficiency within thirty (30) days after
demand therefor. [4]
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[4] Notwithstanding the preceding, in no event shall the increase in Tenant's
Operating Payment (excluding insurance, real estate taxes and insurance)
for the second calendar year following the Commencement Date and any
subsequent calendar year exceed three percent (3%) of Tenant's Operating
Payment for the preceding calendar year (excluding insurance, real estate
taxes and insurance). Landlord estimates that Tenant's Operating Payment
for calendar year 2004 shall be Thirteen and 14/100 Dollars ($13.14) per
square foot of Net Rentable Area. This is only an estimate. It is not
intended, nor shall it be deemed a cap on Tenant's Operating Payment for
calendar year 2004.
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If the Commencement Date or the expiration Date shall occur on a date other
than January 1, or December 31, respectively, any Additional Rent under this
Paragraph 3 for the calendar year in which such Commencement Date or Expiration
Date shall occur shall be apportioned in that percentage which the number of
days in the period from the Commencement Date to December 31 or from January 1
to the Expiration Date, as the case may be, both inclusive, shall be to the
total number of days in such calendar year. In the event of a termination of
this Lease, any Operating Expenses due under this paragraph shall be paid or
adjusted within thirty (30) days after submission of a Landlord's Statement. In
no event shall Base Rent ever by reduced by operation of this paragraph and the
rights and obligations of Landlord and Tenant under the provisions of this
paragraph with respect to Operating Expenses shall survive the termination of
this Lease.
Landlord's failure to render Landlord's Statements with respect to any
calendar year shall not prejudice Landlord's right to thereafter render a
Landlord's Statement with respect thereto or with respect to any subsequent
calendar year.
Each Landlord's Statement shall be conclusive and binding upon Tenant
unless within thirty (30) days after receipt of such Landlord's Statement Tenant
shall notify Landlord that it disputes the correctness of Landlord's Statement,
specifying the particular respects in which Landlord's Statement is claimed to
be incorrect. Landlord agrees to grant Tenant reasonable access to Landlord's
books and records for the purpose of verifying Operating Expenses incurred by
Landlord. Tenant agrees that such information from Landlord's book and records
will be kept confidential. If Tenant shall dispute the correctness of Landlord's
Statement as aforesaid, and the parties shall not be able to resolve such
dispute within ninety (90) days after the giving of such Landlord's Statement,
then either party may refer the matter or matters in dispute to Landlord's
independent certified public accountants and the decision of such accountants
shall be conclusive and binding upon the parties. The fees and expenses of said
accountants in determining such matter or matters shall be borne by the
unsuccessful party (and if both parties are partially unsuccessful, the
accountant shall apportion the fees and disbursements between the parties based
upon the degree of success of each party). Notwithstanding the foregoing, until
such determination by such accountants, Tenant shall pay all Operating Expenses
payable in accordance with this Paragraph 3. After such determination, the
parties shall make adjustments for any deficiency owed by Tenant or any overage
paid by Tenant.
In the event the actual Operating Expenses during any month in any calendar
year exceeds Landlord's projection for such month, and it becomes apparent to
Landlord that Tenant's Operating Payment will not pay Tenant's Proportionate
Share of Operating Expenses for such calendar year, Landlord may give written
notice to Tenant of any such expected deficiency and in such notice may increase
the monthly payments being made by Tenant to Landlord hereby to the extent of
such expected deficiency.
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4. ALL PAYMENTS DEEMED RENT
All sums which Tenant in any of the provisions of this Lease assumes or
agrees to pay, or which Tenant agrees are to be at the expense of Tenant which
may sometimes be referred to as Additional Rent, are deemed and considered to be
rent, and in the event of non- payment thereof, Landlord shall have all of the
rights and remedies provided for herein and by law, in the case of non-payment
of rent.
5. USE
Tenant shall use and occupy the Premises only for a medical and beauty
consultation and administration office and for no other purpose. 5 In the event
the Tenant uses the Premises for purposes not expressly permitted herein, the
Landlord may terminate the Lease, or without notice to Tenant, restrain said
improper use by injunction.
Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which is not within the permitted use of the
Premises which will in any way increase the existing rate of or affect any fire
or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering the Building or any part thereof
or any of its contents. Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere with the rights
of other Tenants or occupants of the Building or injure or annoy them or use or
allow the Premises to be used for any improper, immoral, unlawful or
objectionable purposes; nor shall Tenant cause, maintain or permit any nuisance
in or about the Premises. Tenant shall not commit or allow to be committed any
waste in or upon the Premises. In the event Tenant's permitted use of the
Premises increases the existing rate of or affects any fire or other insurance,
then and in that event Tenant agrees to pay said increase immediately upon
demand by Landlord.
By occupying the Premises as a Tenant, or by installing fixtures,
facilities, or equipment, or by performing finishing work, Tenant shall be
deemed to have accepted the same and to have acknowledged that the Premises are
conclusively in the condition required by the Lease. This Lease does not grant
Tenant any right of air and light over and about the Premises or the Building.
6. UNUSUAL EQUIPMENT
The Tenant will not install or maintain any electrically-operated equipment
or any heavy equipment of any kind including without limitation, safes, vaults,
or other machinery, except light office machinery normally used, without first
obtaining the consent in writing of the Landlord.
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[5] In no event shall Tenant perform medical procedures from the Demised
Premises.
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7. TENANT TO TAKE GOOD CARE OF PREMISES
Tenant shall keep the Premises in a clean, safe and sanitary condition. All
damage caused by Tenant's negligence, or that of his agents, servants, employees
or visitors, shall be repaired promptly by Tenant at his sole cost and expense,
so that the Premises are in at least as good condition as they were prior to
such damage. In the event that the Tenant fails to comply with the foregoing
provisions, the Landlord shall have the option to enter the Premises and make
all necessary repairs at Tenant's cost and expense, the same to be added to and
be payable with the next monthly installment of Rent.
8. COMPLIANCE WITH DIRECTIVES OF AUTHORITIES
Tenant shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the federal, state, county, and
municipal governments and any of their departments and agencies with
jurisdiction for the Premises, and for the correction, prevention and abatement
of nuisances or other grievances in, upon or connected with the Premises during
the term of this Lease; and shall promptly comply with and execute any rules,
orders and regulations of the Southeastern Underwriters Association for the
prevention of fires, all at Tenant's own cost and expense. If by reason of any
failure of Tenant to comply with the provisions of this paragraph, the rate of
fire insurance with extended coverage on the Building or equipment or other
property of Landlord which Landlord may have, but which Landlord is not required
to have, shall be higher than it otherwise would be, Tenant shall reimburse
Landlord, on demand, for that part of the premiums for fire insurance and
extended coverage paid by Landlord because of such failure on the part of
Tenant.
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9. ALTERATIONS AND IMPROVEMENTS
Tenant shall not cut, drill into, disfigure, deface or injure any part of
the Premises or Building, nor obstruct or permit any obstruction, alternation,
addition, improvement, decoration or installation in the Premises or Building.
All alterations, additions, improvements, decorations or installations,
including but not limited to partitions, railing, air conditioning ducts or
equipment (except movable furniture and fixtures put in at the expense of Tenant
and removable without defacing or injuring the Building or the Premises) shall
become the property of Landlord at the termination of this Lease. Landlord,
however, reserves the option to require Tenant, upon demand in writing, to
remove all fixtures and additions improvements, decoration or installations
(including those not removable without defacing or injuring the Premises) and to
restore the Premises and the Building to the same condition as when originally
leased to Tenant, reasonable wear and tear excepted; provided, however, Landlord
shall not have the right to require Tenant to remove any fixtures, additions,
improvements, decorations, and/or installations which are initially installed by
and for Tenant in order to prepare the Premises for occupancy by Tenant in a
manner which has been approved by Landlord. Tenant agrees to restore the
Premises immediately upon the receipt of the said demand in writing at its own
cost and expense and agrees in case of his failure to do so, that Landlord may
do so and collect the cost thereof from Tenant upon demand. Tenant will, at
Tenant's own expense, keep the Leased Premises in good repair and tenantable
condition during the lease term and will replace at its own expense any and all
broken glass caused by Tenant in and about the Premises. Tenant will make no
alterations, additions or improvements in or to the Premises without the written
consent of Landlord, which shall not be reasonably withheld insofar as
non-structural alterations are concerned.
10. INSPECTION, EXAMINATION AND ENTRY
Landlord and Landlord's agents shall have the right to enter the Premises
at all reasonable hours to examine the same, and workmen may enter at anytime in
the event of emergency and otherwise at reasonable times when authorized by
Landlord or Landlord's agents to make such repairs, alterations or improvements
in the Building as Landlord may in its sole discretion deem necessary or
desirable. If during the last month of the term, Tenant shall have removed all
or substantially all of Tenant's property, Landlord may immediately enter the
Premises and prepare them for any future tenant. Furthermore, the Landlord may
allow such future tenant to occupy the Premises. These acts shall have no effect
upon Tenant's obligation under this Lease and Tenant shall be entitled to no
abatement or diminution of Rent as a result thereof, except that in the event
such future Tenant makes any payment for the period up until the expiration of
this Lease, Tenant shall be entitled to any abatement of Rent for such period.
If Tenant shall not be personally present to open and permit entry into the
Premises, when entry thereto shall be necessary hereunder, Landlord may forcibly
enter same without rendering Landlord liable to any claim for damages and
without affecting the obligation and covenants of the Lease. Employees of
Landlord and Landlord's agents shall be permitted to enter the Premises by
passkey at all reasonable times.
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11. NO LIABILITY
Tenant will not hold Landlord liable for any latent defect in the Premises
or in the Building; however, it shall be Landlord's responsibility to correct
any latent defects within a reasonable time after such defects are detected.
Landlord shall not be liable for any failure of water supply, electric current,
communication service, heating or air conditioning, elevator service, or any
other service; nor for injury or damage to person or property caused by fire or
theft or by the elements or by other tenants or persons in the Building, or
resulting from the operation of elevators, heating or air conditioning or
lighting apparatus, or from falling plaster, or from steam, gas, electricity,
water, rain or dampness, which may leak or flow from any part of the Building,
or from the pipes, appliances, or plumbing work of the same, or from any other
place or for damages resulting from the acts or omissions of Tenant, Tenant's
agents, employees, invitees or other occupants of the Building. Nor shall
Landlord be liable for any loss or damage that Tenant may sustain by reason of
the closing or darkening of any of the windows in the Premises through the
erection of or any addition to a new building or otherwise, and the same shall
not constitute a constructive eviction. All goods or property or personal
effects stored or placed by the Tenant in or about the Building shall be at the
sole risk of the Tenant.
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12. DAMAGE BY FIRE OR OTHER CASUALTY
If, through no fault or negligence of Tenant, his visitors, agents or
servants, the Premises shall be partially damaged by fire or other casualty, the
damage shall be repaired by Landlord to the extent insurance proceeds are
available, and the Rent, until such repairs are made, shall be apportioned
according the portion of the Premises which are still usable. Landlord's
restoration obligation shall be limited to the returning of the Premises to
substantially the same condition as was required for delivery of the Premises
upon the Commencement Date. Landlord shall only be obligated to restore the
Landlord's work as provided in Article 36 hereof, to the extent of insurance
proceeds available, and Tenant shall be responsible for all costs of
improvements to the Premises above and beyond those supplied by Landlord at
Landlord's expense as part of the initial construction and equipping of the
Premises. If the damage shall be so extensive as to render the Premises wholly
untenantable, the Rent shall cease until such time as the Premises shall become
tenantable. However, if the damage is so extensive that the Premises cannot be
made tenantable within six (6) months from the date of the fire or other
casualty, either party shall have the right to terminate this Lease upon ten
(10) days' written notice to the other. In case the Building generally
throughout (though the Premises may not be affected) is so injured or destroyed
by fire or other casualty that Landlord shall decide not to rebuild or
reconstruct the Building, the term of this Lease shall cease upon ten (10) days'
written notice sent by Landlord and the Rent shall be paid up to the time of
such destruction or the date Tenant surrenders possession of the Premises,
whichever is later, and the Lease shall thereafter be of no further effect. In
the event that any questions shall arise between Landlord and Tenant as to
whether or not repairs shall have been made with reasonable dispatch, due
allowance shall be made for any delays which may arise in connection with the
adjustment of the fire insurance loss and for any delays arising out of what are
commonly known as "labor troubles" or "material troubles" or from any other
cause beyond Landlord's control. In any event Landlord shall not be liable to
Tenant by reason of fire or other damage to the Building or the Premises.
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13. CONDEMNATION
If the entire Premises shall be taken by any public authority under the
power of eminent domain, then the term of this Lease (or of any option period
exercised hereunder) shall cease as of the date possession shall be taken by
such public authority and the Rent shall be paid up to that day with a
proportionate refund by Landlord of any prepaid Rent. If any part of the
Premises material to the operations of Tenant shall be permanently taken under
eminent domain, either party to this Lease shall have the right to terminate the
Lease by notice in writing delivered to the other party within ten (10) days
after notice of such taking and, upon such election, this Lease shall terminate
as of the date when title vests in the taking authority and the Rent and all
other sums payable under this Lease shall be prorated and paid to the date of
termination. If neither party elects to terminate this Lease, Tenant shall
continue in possession of the remainder of the Premises and all of the terms of
this Lease shall continue in full force and effect, except that the Rent shall
be reduced in proportion to the extent of the Premises taken. All damages
awarded for any taking under the power of eminent domain, whether for the whole
or a part of the Premises, shall belong to and be the property of the Landlord,
whether such damages shall be awarded as compensation for diminution in value to
the leasehold or to the fee of the Premises; provided, however, that Landlord
shall not be entitled to any award made to Tenant for loss of business, or
depreciation to, damage to, or costs of removal of, or for the value of stock,
trade fixtures, furniture, and other personal property belonging to the Tenant.
In the event of a taking of the whole or any part of the Premises for
temporary use or occupancy, this Lease shall not terminate but shall remain in
full force and effect and Tenant shall continue to pay in full the Rent and
other charges payable under this Lease, without abatement, reduction or
suspension. Tenant shall be entitled to receive any compensatory award made for
such temporary use or occupancy provided, however, if such taking is to be for a
period in excess of ninety (90) days, the Tenant shall have the right to elect
to terminate this Lease.
14. NO ABATEMENT
No diminution or abatement of Rent, or other compensation, shall be allowed
for inconvenience or injury arising from the making of repairs, alterations, or
improvements to the Building nor for any space taken to comply with any law,
ordinance or order of government authority.
15. SERVICES
Landlord will furnish as part of the Operating Expenses the following
services to Tenant from Monday through Friday from 7:00 A.M. to 7:00 P.M. and on
Saturday from 7:00 A.M. to 1:00 P.M. except for Christmas Day, Memorial Day,
Labor Day, Thanksgiving Day, Fourth of July, and New Year's Day, or any
subsequent nationally recognized holiday:
(a) Cleaning services, deemed by Landlord to be normal and usual in a
first-class office building, except that shampooing and replacement of
carpet as required by Tenant shall be at Tenant's own expense.
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(b) Central heat and air conditioning in season, at such temperatures
and in such amounts as are considered by Landlord to be reasonable; such
services furnished to Tenant at times other than the hours set forth above,
and on Sundays and holidays shall not be an Operating Expense and will be
furnished to Tenant at its sole cost and expense.
(c) Routine maintenance and electric lighting service for all Common
Areas of the Building in the manner and to the extent deemed by Landlord to
be standard.
(d) Electricity and electrical facilities to furnish electrical
current for normal office use.
(e) Hot and cold water at those points of supply provided for general
use at all times and all day through the year.
(f) Initial and replacement bulbs and ballasts for building standard
lighting within the Leased Premises.
(g) Sufficient elevator service for the Leased Premises, weekdays and
on Saturdays and at least one elevator serving the Leased Premises 24 hours
a day, every day of the year.
(h) Twenty-four (24) hour security for the Building.
No electric current shall be used except that furnished or approved by the
Landlord, nor shall electric cable or wire be brought into the Premises, except
upon the written consent and approval of the Landlord. Tenant shall use only
office machines and equipment that operate on the Building's standard electric
circuits or equipment (the installation of which shall be at Tenant's expense
after approval in writing by the Landlord). Excess electrical current
consumption shall be paid for by the Tenant as Additional Rent to the Landlord
in an amount to be determined by the Landlord based upon Landlord's estimated
costs of such excess electric current consumption or based upon the actual cost
thereof if such excess electric current consumption is separately metered.
Such services and such other services as Landlord in its sole and absolute
discretion may elect to provide, shall be provided as long as the Tenant is not
in default of this Lease beyond any applicable cure periods, subject to
interruption caused by repairs, renewals, improvements, changes of service,
alterations, strikes, lockouts, labor controversies, inability to obtain fuel or
power, accidents, breakdowns, catastrophes, national or local emergencies, acts
of God and conditions and causes beyond the control of Landlord and upon such
happening, no claim for damages or abatement of Rent for failure to furnish any
such services shall be made by the Tenant or allowed by the Landlord.
It is understood and agreed between the parties hereto that any charges
against Tenant by Landlord for services or for work done on the Premises by
order of Tenant, or otherwise accruing under this Lease, shall be considered as
Additional Rent due and shall be included in any lien for Rent.
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16. ABANDONMENT
In case the Tenant shall fail to take possession upon the Commencement
Date, or in case the Premises or any part thereof shall be abandoned prior to
the expiration of the term of this Lease, Landlord shall have the right, but not
the obligation, to enter the Premises without instituting any proceeding either
by force or otherwise without being liable for damages therefor, and to relet
the same or any part thereof, for the unexpired portion of the term or longer
and to collect the Rent therefor, and to apply the rents so collected to the
payment of Rent and all other sums payable to Landlord. Tenant shall in such
case remain responsible to Landlord for any and all deficiency, loss and damage
suffered by Landlord, as provided for herein.
For the purpose of this Section the Premises shall be deemed to have been
vacated when Tenant shall have vacated the Premises and been away therefrom for
five (5) consecutive days, exclusive of holidays and any time period utilized
for renovations and repairs to the Premises, irrespective of whether the keys
have been delivered to Landlord or not.
17. DEFAULT AND REMEDIES
All rights and remedies of the Landlord herein enumerated shall be
cumulative, and none shall exclude another or any other right or remedy provided
by law.
(a) If Tenant or any guarantor of this Lease shall become bankrupt or
insolvent or unable to pay its debts as such become due, or file any debtor
proceedings or if Tenant or any guarantor shall take or have taken against
either party in any court pursuant to any statute either of the United
States or of any State, a petition in bankruptcy or insolvency which has
not been dismissed within one hundred twenty (120) days or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's or any such guarantor's property, or if Tenant or any
such guarantor makes an assignment for the benefit of creditors, or
petitions for or enters into an arrangement with its creditors, then this
Lease shall terminate and Landlord, in addition to any other rights or
remedies it may have, shall have the immediate right of reentry and may
remove all persons and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of and
for the account of Tenant, all without service of notice or resort to legal
process and without being deemed guilty of trespass, or becoming liable for
any loss or damage which may be occasioned thereby.
(b) If the Tenant defaults in the payment of Rent or in the prompt and
full performance of any provisions of this Lease, or if the leasehold
interest or the Tenant's business or fixtures of Tenant are levied upon
under execution or attached by process of law, or if the Tenant makes an
assignment for the benefit of creditors, or if a receiver is appointed for
any property of the Tenant, or if the Tenant abandons the Premises, or if
Tenant fails to cure a monetary or non-monetary default within five (5)
days after written notice thereof, or if said non-monetary default is of
such a nature that same cannot be cured within five (5) days, Tenant fails
to diligently commence to cure within that time and thereafter continues to
proceed to cure same, then Landlord at its option, may forthwith terminate
20
this Lease and the Tenant's right to possession of the Premises, or
terminate only Tenant's right to possession hereunder.
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise, the Tenant shall surrender possession and vacate the Premises
immediately, and deliver possession thereof to the Landlord, and hereby
grants to the Landlord full and free license to enter into and upon the
Premises in such event with process of law and to expel or remove the
Tenant and any others who may be occupying or within the Premises and to
remove any and all property therefrom, using such force as may be allowed
by law without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer, and without relinquishing the Landlord's rights
to Rent or another right given to Landlord hereunder or by operation of
law.
(d) If the Tenant abandons the Premises or otherwise entitles the
Landlord so to elect, and the Landlord does elect to terminate the Tenant's
rights to possession only, without terminating the Lease, the Landlord may,
at the Landlord's option, enter into the Premises, remove the Tenant's
signs and other evidence of tenancy, and to take and hold possession
thereof without such entry and possession terminating the Lease or
releasing the Tenant, in whole or in part, from the Tenant's obligation to
pay the Rent hereunder for the full term, and in any such case the Tenant
shall pay forthwith to the Landlord a sum equal to the entire amount of the
Rent reserved for the remainder of the stated term plus any other sums then
due hereunder. Upon and after entry into possession without termination of
the Lease, the Landlord may, but need not, relet the Premises or any part
thereof for the account of the Tenant to any person, firm or corporation
other than the Tenant for such Rent, for such time and upon such terms as
the Landlord, in the Landlord's sole discretion, shall determine; and the
Landlord shall not be required to accept any tenant offered by the Tenant
or to observe any instruction given by the Tenant about such reletting. In
any such case, the Landlord may make repairs, alteration and additions in
or to the Premises and redecorate the same to the extent deemed by the
Landlord necessary or desirable, and the Tenant shall, upon demand, pay the
cost thereof, together with all of Landlord's expenses of the reletting,
including by way of example, but not by way of limitation advertising
expenses, commissions, broker's fees, etc. If the consideration collected
by the Landlord upon any such reletting for the Tenant's account is not
sufficient to pay monthly the full amount of the Rent reserved in this
Lease, together with the costs of repairs, alterations, additions,
redecorating and the Landlord's expenses, the Tenant shall pay to the
Landlord the amount of each monthly deficiency upon demand.
(e) Any and all property which may be removed from the Premises by the
Landlord pursuant to the authority of this Lease or of law, to which the
Tenant is or may be entitled, may be handled, removed or stored by Landlord
at the risk, cost and expense of Tenant, and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant
shall pay to Landlord, upon demand, all expenses incurred in such removal
and all storage charges against such property so long as the same shall be
in the Landlord's possession or under Landlord's control. Landlord may
place such property in storage for the account of, and at the expense of
Tenant and if Tenant
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fails to pay the cost of storing such property after it has been stored for
a period of ninety (90) days or more, Landlord may sell any or all of such
property in such manner and at such times and places as Landlord, in its
sole discretion, may deem proper, without notice to or demand upon Tenant
for the payment of any part of such charges of the removal of any of such
property and shall apply the proceeds of such sale first to the cost of
expenses of such sale, including reasonable attorneys' fees; second, to the
payment of the costs and charges of storing any property; third, to the
payment of any other sums of money which may then or thereafter be due to
Landlord from Tenant under any of the terms hereof; and fourth, the
balance, if any, to Tenant. the removal and storage of Tenant's property as
above provided shall not constitute a waiver of Landlord's lien thereon.
(f) Tenant shall pay upon demand all of Landlord's costs, charges and
expenses, including the fees of counsel, agents and others retained by
Landlord, incurred in enforcing Tenant's obligations hereunder or incurred
by Landlord in any litigation, negotiation or transaction in which Tenant
causes Landlord, without Landlord's fault, to become involved or concerned.
Attorney's fees shall be awardable for all phases of litigation, trial, as
well as appellate.
(g) To perfect and assist in the implementation of certain of
Landlord's rights in and to the Tenant's personal property, Tenant hereby
pledges and assigns to Landlord and grants unto Landlord a lien upon all
furniture, fixtures, goods and chattels of Tenant which shall or may be
bought or put on the Premises as further security for the faithful
performance of the terms, provisions, conditions and covenants of this
Lease. Tenant specifically agrees that said lien may be enforced by
distress, foreclosure or otherwise at the election of the Landlord. Tenant
hereby expressly waives and renounces for himself and family any and all
homestead and exemption right he may have now hereafter, under or by virtue
of the Constitution or laws of the State of Florida, or of any other state,
or of the United States, as against the payment of Rent, Additional Rent or
any other charges payable by Tenant hereunder or any other obligation or
damage that may accrue under the terms of this Agreement.
(h) Notwithstanding any contrary provision of this Lease, Tenant shall
look solely to the interest of Landlord or its successor (as Landlord
hereunder) in the real property of which the Leased Premises are a part for
the satisfaction of any judgment or judicial process requiring the payment
of money as a result of any negligence or breach of this Lease by Landlord
or such successor, and no other assets of Landlord or its successor shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies in any of such events. Tenant's sole
right and remedy in any action or proceeding concerning Landlord's
reasonableness (where the same is required under this Lease) shall be an
action for declaratory judgment and/or specific performance.
(i) If Tenant shall fail to observe or perform any term or condition
on Tenant's part to be observed or performed under this Lease, then
Landlord may, after providing the notice required in subparagraph (b)
above, perform the same for the account of Tenant, and if Landlord shall
make any expenditure or
22
incur any obligation for the payment of money in connection therewith
(including reasonable attorneys' fees in instituting, prosecuting and/of
defending any action or proceeding through appeal), the sums paid or
obligations incurred, with interest as specified in Paragraph 1 hereof, and
costs shall be deemed to be Additional Rent hereunder and shall be paid by
Tenant to Landlord within ten (10) days after rendition of a xxxx or
statement therefor.
18. ASSIGNMENT OR SUB-LETTING OF TENANT'S INTEREST
The Tenant's interest in this Lease or any security deposited thereunder
shall not be sold, transferred, mortgaged or assigned, nor shall the Premises,
or any part thereof, including desk space, be let or sublet without the prior
written consent of Landlord. Even though Landlord may consent to a sale,
transfer, mortgage, assignment or subletting thereof, the aforesaid restrictions
shall remain in full force and effect, and no further sale, transfer, mortgage,
assignment or subletting shall be made without Landlord's consent in writing.
Any sale or transfer, whether to one or more persons and whether at one or
different times, of a total of more than fifty percent (50%) of the shares of
capital stock of any corporation which is then the legal tenant under this
Lease, or the transfer of greater than a fifty percent (50%) partnership
interest if a partnership is the then legal tenant under this Lease, shall be
deemed an assignment within the meaning of this Section. Tenant agrees that
subject to the further provisions hereof, in the event Tenant should desire to
assign this Lease or sublet the Leased Premises or any part thereof, Tenant
shall give Landlord written notice of such desire at least sixty (60) days in
advance of the date on which Tenant desires to make such assignment or sublease.
Landlord shall then have a period of thirty (30) days following receipt of such
notice within which to notify Tenant in writing that Landlord elects either (1)
to terminate this Lease as to the space so affected as of the date so specified
by Tenant in which event Tenant will be relieved of all further obligations
hereunder as to such space, or (2) to permit Tenant to assign or sublet such
space, subject, however, to subsequent written approval of the proposed assignee
or sublessee by Landlord, or (3) to refuse to consent to Tenant's assignment or
subleasing such space and to continue this Lease in full force and effect as to
the entire Leased Premises. If Landlord should fail to notify Tenant in writing
of such election within said thirty (30) day period, Landlord shall be deemed to
have elected option (3) above. No assignment or subletting by Tenant shall
relieve Tenant of any obligation under this Lease. Any attempted assignment or
sublease by Tenant in violation of the terms and covenants of this Paragraph 18
shall be void.
In the event Landlord consents to any assignment of this Lease or any
sublease of all or any part of the Premises, Tenant shall pay the Landlord, on a
monthly basis, an amount equal to all Rent, property and other consideration
paid under said assignment or sublease during each month in excess of the Base
Rent as adjusted pursuant to this Lease for said month. In the event of a
sublease or assignment of any part of the Premises, Tenant shall pay such amount
as is in excess of that portion of the Base Rent which is reasonably allocated
by Landlord to such portion of the Premises.
Tenant shall pay to Landlord, Landlord's administrative fees, overhead and
fees of counsel in connection with any assignment or subletting by Tenant and in
connection with any other legal document which is prepared or reviewed by
Landlord for the benefit of Tenant , but not less than a minimum sum of One
Thousand and 00/100 Dollars ($1,000.00).
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19. COLLECTION OF RENT FROM OTHERS
If the Tenant's interest in this Lease is assigned, or if the Premises or
any part thereof is sublet, Landlord may, after default by Tenant, collect Rent
from the assignee or sub-tenant and apply the net amount collected to the Rent
due from Tenant. No such collection shall be deemed a waiver of the covenant
herein against sale, transfer, mortgage, assignment and subletting or a release
of Tenant from the performance of the covenants herein contained. In the event
of such default, Tenant hereby assigns the rent due from the sub- tenant or
assignee to Landlord, and hereby authorizes such sub-tenant or assignee to pay
the rent directly to Landlord.
20. INFORMATION AS TO SUB-TENANTS
If the Premises shall be sublet in whole or in part by Tenant, Tenant will,
on demand of Landlord, furnish and supply in writing, within three (3) days
after such demand, any and all information with regard to said sub-tenants which
Landlord may reasonably request. Nothing herein contained shall be construed to
be a consent to any sub-letting or a waiver of the covenant against sub-letting
contained therein.
21. RELOCATION
Landlord expressly reserves the right before possession or commencement and
during the term of this Lease, at its sole cost and expense, to remove the
Tenant from the Leased Premises and relocate the Tenant to some other space of
Landlord's choosing of approximately the same size within the Building, which
other space shall be decorated by Landlord at Landlord's expense and Landlord
may in its discretion use such decorations and materials from the existing
Leased Premises or other materials, so that the space in which Tenant is
relocated is comparable in its interior design and decoration to the Leased
Premises from which Tenant is removed; provided, however, that if Landlord
exercises its election to remove and relocate the Tenant to other space within
the Building and the new space is at that time leasing for a higher rate of Rent
per square foot of Net Rentable Area, then Tenant shall not be required to pay
the difference between the Rent per square foot of Net Rentable Area of the
Leased Premises and the higher Rent per square foot of Net Rentable Area of the
space to which Tenant is relocated; provided, further, that if Tenant is removed
and relocated to other space within the Building which is then leasing at a rate
of Rent per square foot of the Net Rentable area less than the rate of Rent per
square foot of the Net Rentable Area of the existing Leased Premises at that
time, Tenant's Rent per square foot shall be reduced to the Rent per square foot
of Net Rentable Area then being charged for the space in which Tenant has been
relocated. Tenant, by the execution of this Lease, acknowledges the foregoing
right of Landlord, and no rights granted in this Lease to Tenant, including, but
not limited to the right of peaceful and quiet enjoyment, shall be deemed to
have been breached or interfered with by reason of Landlord's exercise of the
right of relocation reserved in this Paragraph. Landlord's sole obligation for
costs and expenses of removal and relocation shall be the actual cost of
relocating and decorating the space in which tenant is relocated, and Tenant
agrees that Landlord's exercise of its election to remove and relocate Tenant
shall not terminate this Lease or release the Tenant, in whole or in part, from
the Tenant's
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obligation to pay the rents and perform the covenants and agreement hereunder
for the full term of this Lease. Landlord will endeavor to relocate Tenant with
a minimum of disturbance to Tenant's business, and for such period, if any, as
Tenant is unable to conduct its business during and because of such relocation,
Rent shall xxxxx.
22. RIGHT OF LANDLORD TO USE ENTRANCES, ETC. AND TO CHANGE SAME
For the purpose of making repairs or alterations in any portion of the
Building of which the Premises form a part, Landlord may use one or more of the
street entrances, halls, passageways and elevators of the said Building,
provided, however, that there be no unnecessary obstruction of the right of
entry to the Premises while the same are occupied. Landlord may at any time
change the name or number of the Building, remodel or alter the same, or the
location of any entrance thereto, or any other portion thereof not occupied by
Tenant, and the same shall not constitute a constructive or actual, total or
partial eviction.
23. ATTORNEYS' FEES
[6]
24. EXAMINATION OF PREMISES AND NO ORAL REPRESENTATION
The taking possession of the Premises by Tenant shall be conclusive
evidence that the Premises were in good and satisfactory condition at the time
such possession was taken, subject to "punch list" items and latent defects. No
representation, except those contained herein, have been made on the part of the
Landlord with respect to this undertaking, whether relating to the repair,
condition or otherwise of the Premises or the Building. Tenant will make no
claim on account of any representation whatsoever, whether made by any renting
agent, broker, offices or other representative of Landlord or which may be
contained in any circular, prospectus advertisement relating to the Premises, or
otherwise, unless the same is specifically set forth in this Lease.
--------
[6] In the event of litigation to enforce any of the terms or provisions of
this Lease, the prevailing party shall be entitled to be reimbursed by the
non- prevailing party for its reasonable attorney fees and court costs.
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25. SUBORDINATION
Tenant agrees that its rights hereunder are subordinate to the lien of any
mortgage, ground lease, or any other method of financing or refinancing now or
hereafter placed against the Land and/or the Premises and/or any/or all of the
Building now built or hereafter to be built on the Land by Landlord and to any
and all advances made or to be made thereunder and to the interest thereon and
to all renewals, replacements, modifications, consolidations and extension
thereof. This paragraph shall be self-operative and no further instrument of
subordination shall be required. Tenant further agrees that it will enter into
and execute all documents which any such mortgagee or any ground lessor may
reasonably request Tenant to enter into and execute, including a subordination
agreement. Tenant agrees that it will send copies of all notices to Landlord, to
Landlord's mortgagees or ground Lessors, provided that Tenant has been furnished
with the name and address of such mortgagees or ground lessors, and further
provided that Landlord or Landlord's mortgagee or ground lessor has requested
Tenant to send copies of such notices. Tenant agrees that Tenant will attorn to
any mortgagee or ground lessor or purchaser at a foreclosure sale, if requested
to do so.
The Tenant further covenants and agrees that if by reason of a default
under any underlying lease (*including an underlying lease through which the
Landlord derives its leasehold estate in the Premises), such underlying lease
and the leasehold estate of the Landlord in the Premises demises hereby is
terminated, the Tenant will attorn to the then holder of the reversionary
interest in the Premises demised by this Lease and will recognize such holder as
the Tenant's Landlord under this Lease. The Tenant agrees to execute and
deliver, at any time and from time to time, upon the request of the Landlord or
of the lessor under any such underlying lease any instrument which may be
necessary or appropriate to evidence such attornment. The Tenant further waives
the provision of any statute or rule of law now or hereafter in effect which may
give or purport to give the Tenant any right of election to terminate this Lease
or to surrender possession of the premises demised hereby in the event any
proceeding is brought by the lessor under any underlying lease to terminate the
same.
If a Mortgagee of Landlord's shall request reasonable modifications to this
Lease, Tenant shall execute, acknowledge, and deliver to the Mortgagee an
agreement, in form and substance satisfactory to the Mortgagee, evidencing such
modifications, provided that such modifications do not increase Tenant's
obligations under this Lease or materially adversely affect (a) the leasehold
interest created by this Lease, or (b) Tenant's use and occupancy or the Leased
Premises.
26. HOLDING OVER
If the Tenant retains possession of the Premises or any part thereof after
the termination of this Lease or any extension thereof, by lapse of time or
otherwise, the Tenant shall pay the Landlord Rent at double the rate payable for
the year immediately proceeding said holdover, computed on a per month basis,
for the time the Tenant thus remains in possession. The provisions of this
paragraph do not waive the Landlord's rights of re-entry or any other right
hereunder. Any retention of the Premises after the termination of this Lease or
any extension thereof shall be considered as a month-to-month holdover unless
otherwise agreed to in writing by both parties.
26
27. CERTIFICATE BY TENANT
Tenant shall deliver to Landlord or to its mortgagees, auditors, or
prospective purchaser, or to the owner of the fee, when requested by Landlord, a
certificate to the effect that this Lease is in full force and effect and that
Landlord is not in default therein or stating specifically any exceptions
thereto. Failure to give such a certificate within ten (10) days after written
request shall be conclusive evidence that the Lease is in full force and effect
and Landlord is not in default and Tenant shall be estopped from asserting any
defaults known to him at that time.
28. REMEDIES CUMULATIVE
The various rights, remedies, powers and elections of Landlord reserved,
expressed, or contained in this Lease, are cumulative and no one of them shall
be deemed to be exclusive to the others or of such other rights, remedies,
powers, options or elections as are now, or may hereafter be, conferred upon
Landlord by law.
29. NO WAIVER OF PERFORMANCE
No waiver of Landlord of any provision hereof shall be deemed to have been
made unless such waiver is in writing signed by Landlord. The failure of
Landlord to insist upon the strict performance of any of the covenants or
conditions of this Lease, or to exercise any option herein conferred, shall not
be construed as waiving or relinquishing for the future of any such covenants,
conditions or options, but the same shall continue and remain in full force and
effect. No act of Landlord or its agent during the term hereof shall be deemed
an acceptance or a surrender of the Premises unless made in writing and
personally subscribed by Landlord. Neither the delivery of the keys to the
Premises by Tenant to Landlord or its agents is to be deemed a surrender and
acceptance thereof. No payment by Tenant of a lesser amount than the monthly
Rent herein stipulated shall be deemed to be other than on account of the
stipulated Rent.
30. AGREEMENT TO INDEMNIFY
Tenant shall indemnify and save Landlord harmless, and does agree to
indemnify and save Landlord harmless, of and from all fines, claims, demands,
and causes of action of every nature whatsoever arising or growing out of any
manner connected with the occupation or use of the Premises and Building, and
every part thereof, by Tenant and the employees, agents, servants, guests and
invitees of Tenant, including without limiting the generality of the foregoing,
any claims, demands and causes of action for personal injury and/or property
damage, and said indemnification shall extend to any liens, claims, demands, and
causes of action of every nature whatsoever which may be made upon, sustained or
incurred by Landlord by reason of any breach, violation of non-performance of
any term, covenant, or condition hereof on the part of the Tenant, or by reason
of any act or omission on the part of Tenant and the employees, agents,
servants, guests and invitees of Tenant. In any such event, comparative
negligence on the part of the Landlord shall not in any way effect Tenant's
obligation under this indemnification. Tenant agrees that this indemnification
shall further extend to all costs incurred by Landlord, including reasonable
attorney's fees.
Tenant agrees that, at all times during the Term (as well as prior and
subsequent thereto, if Tenant or its agents shall then use
27
or occupy a portion of the Leased Premises), it shall keep in force, with a
responsible insurance company licensed to do business in the State of Florida
which shall have at least a Best's Rating of A and otherwise be reasonably
acceptable to Landlord, commercial general liability and property damage
liability insurance in a single limit of not less than $1,000,000.00 covering
death or injury to any person(s) as well as property damage. Such policy shall
(a) include Landlord, its managing agent (if any), and such other parties as
Landlord may designate as parties insured; (b) be considered primary insurance;
(c) include by endorsement an agreement insuring Tenant's indemnity and hold
harmless obligations under this paragraph; (d) provide that it may not be
cancelled or changed without at least twenty (20) days prior written notice from
the insurer to each party insured thereunder; and (e) provide that the insurance
company issuing the policy shall not have a right of subrogation against
Landlord or its insurer. Upon Landlord's request from time to time, Tenant shall
furnish Landlord with either the original policy, or at Tenant's option, a
certificate of the insurance so carried by Tenant.
In case Landlord shall be made a party to any litigation commenced against
Tenant, then Tenant shall protect and hold Landlord harmless and shall pay all
costs, expenses and reasonable attorney's fees incurred or paid by Landlord for
attorneys of its own choice in connection with such litigation.
31. NOTICES
All notices shall be in writing. Any notice by Landlord to Tenant shall be
deemed to be duly given if either delivered personally to Tenant, [7] days after
depositing into the United States mail system via registered or certified mail,
or via overnight mail (i.e., Federal Express), addressed to Tenant at the
Building in which the Premises are situated. Any notice of Tenant to Landlord
shall be deemed duly given if delivered personally to Landlord, [8] days after
depositing into the United States mail system via registered or certified mail,
or via overnight mail (i.e., Federal Express), addressed to Landlord, 00000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (or at such other address as may
hereafter be designated by Landlord), and also to the agent of Landlord, if any,
charged with the renting and management of the Building.
32. SURRENDER AT EXPIRATION OF THE TERM
Tenant agrees at the expiration of the term to quit and surrender the
Premises and everything belonging to or connected therewith in as good state and
condition as reasonable wear and use thereof will permit, and to remove all
signs, advertisements and rubbish from the said Premises; and Tenant hereby
expressly authorizes Landlord, as the agent of Tenant, to remove such rubbish
and make such changes and repairs as may be necessary to restore the Premises to
such condition at the expense of Tenant.
--------
[7] five (5) business
[8] five (5) business
28
33. RULES AND REGULATIONS
Tenant agrees to observe and comply with and Tenant agrees that his agents,
servants, employees and all persons visiting in the Premises will observe and
comply with rules and regulations (the "Rules and Regulations") annexed hereto
and such other and further Rules and Regulations as Landlord may from time to
time deem needful and prescribe for the reputation, safety, care and cleanliness
of the Building and Land and the preservation of good order therein and the
comfort, quiet, and convenience of other occupants of the Building, which Rules
and Regulations shall be liable to Tenant for the violation of any of the said
Rules and Regulations by any other Tenant or person. Landlord agrees that the
Rules and Regulations will be reasonable and will not interfere with Tenant's
quiet enjoyment of the Premises.
34. SIGNS
Tenant shall not construct any signs on the Premises or any other portion
of the Building. The Landlord will provide and install, at its sole expense, all
letters or numerals on doors entering the Premises and a Building standard
listing on the directory board located within the Building evidencing the name
of the Tenant only. All such letters and numerals shall be in the standard
graphics as approved in writing by Landlord for the Building and no others shall
be permitted on the Premises without the Landlord's prior written consent which
consent may be arbitrarily withheld. Any letters, names or numerals on the doors
entering the Premises or on the Building's directory board other than as set
forth above shall be provided for and installed by Landlord at Tenant's sole
expense.
35. IMPROVEMENTS BY TENANT
In making any alterations, decorations, additions, installations or
improvements to or in the Premises, Tenant shall employ only such labor as shall
have the same union affiliations as the workmen of Landlord's contractors, and
such as will not cause strikes or labor trouble with other employees in the
building employed by Landlord or Landlord's contractors; and all such work done
by Tenant shall be performed and installed in such a manner that the same shall
comply with all provisions of law, ordinances and all Rules and Regulations of
any and all agencies and authorities having jurisdiction over the Premises, and
at such time and in such manner as not to interfere with progress of any work
being performed by or on account of Landlord. Notwithstanding the foregoing, it
is understood that Tenant is not obliged by Landlord to make any improvement or
improvements, and in no event shall Tenant have the right to create or permit
there to be established, any lien or encumbrances of any nature against the
Premises or the Building for said improvement or improvements by Tenant, and
Tenant shall fully and promptly pay the cost of any improvement or improvements
made or improvements made or contracted by Tenant.
29
36. IMPROVEMENT OF THE DEMISED PREMISES
Tenant hereby agrees to accept the Premises in its "AS-IS" condition. [9]
37. LANDLORD'S INTEREST NOT SUBJECT TO MECHANICS LIENS AND REMOVAL OF LIENS
(a) Landlord's Interest Not Subject to Liens. All persons to whom these
presents may come are put upon notice of the fact that Tenant shall never, under
any circumstances have the power to subject the interest of Landlord in the
Premises or any portion of the Building to any mechanics' or materialmen's lien
or liens of any kind. All persons who may hereafter, during the continuance of
this Lease, furnish work, labor, services or materials to the Premises, or any
portion of the Building upon the request or order of Tenant, or any person
claiming under, by or through Tenant, must look wholly to the interest of Tenant
and not to that of Landlord.
(b) Tenant's Obligation to Remove Liens. Tenant shall not permit or suffer
to be filed or claimed against the Premises or any portion of the Building
during the continuance of this Lease any lien or liens of any kind arising out
of the action of Tenant, and if any such lien be claimed or filed, Tenant
covenants, within the time now about to be limited, to cause the lien ("Claim"),
either through the deposit into court pursuant to statute of the necessary sums
of money, or in any other way which is competent legally to effect the release
("Release") of the Premises and/or the Building from the Claim. The time within
which Tenant must effect such Release of the premises and/or the Building, as
aforesaid, is as follows:
(i) If the Claim shall have been evidenced through the giving of a
written notice of lien claim, and if such notice be filed amongst the
Public Records of Dade County, Florida, then Tenant shall effect such
Release from such Claim within thirty (30) days after the time when such
Claim shall have been filed amongst the Public Records.
(ii) If the Claim be evidenced, without notice having been given as
aforesaid, through the filing of a suit in any court having jurisdiction of
the subject matter, in which suit the Claim is asserted and sought to be
enforced, then Tenant must effect the Release within ten (10) days after
the time when service of process shall have been completed against Tenant
or Landlord in the suit.
In the event that the Tenant shall violate the terms and provisions of this
paragraph, such violations shall constitute an immediate default under this
Lease.
38. SECURITY
Tenant has deposited with Landlord the sum of Ten Thousand Two Hundred
Three and 56/100 Dollars ($10,203.56) representing the equivalent of three (3)
months' Rent including 7.0% sales tax, as security for the faithful performance
and observance by Tenant of the terms, provisions and conditions of this Lease.
It is agreed that,
--------
[9] Notwithstanding anything herein to the contrary, Landlord, at Landlord's
sole cost and expense, shall perform the following work in the Demised
Premises: (i) re-paint the Demised Premises; (ii) re-carpet the Demised
Premises; and (iii) create an entrance way between the two (2) existing
suites.
30
in the event Tenant defaults in respect of any of the terms, provisions and
conditions of this Lease, including, but not limited to, the payment of Base
Rent and Additional Rent, Landlord may use, apply or retain the whole or any
part of the security deposited to the extent required for the payment of any
Rent for any sum which Landlord may expend or may be required to expend by
reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including, but not limited to, any damages or
deficiency in the re-letting of the Premises, whether such damage accrued before
or after summary proceedings or other re-entry by Landlord. In the event the
Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the security shall be returned to Tenant
after the date fixed at the end of the Lease, and after delivery of the entire
possession of the Premises to Landlord. In the event of a sale of the Land and
Building, of which the Premises form a part, Landlord shall have the right to
transfer the security to the vendee, and Landlord shall thereupon be released by
Tenant from all liability for the return of such security and Tenant agrees to
look solely to the new Landlord for the return of said security. It is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Landlord. Tenant further covenants that it will not assign
or encumber the monies deposited herein as security and that neither Landlord
nor its assigns shall be bound by any such assignment or encumbrance. Landlord
shall not be required to keep the security in a segregated account and the
security may be commingled with other funds of Landlord, and in no event shall
Tenant be entitled to any interest on the security. The mortgagee holding a
mortgage encumbering the Building shall not be responsible to Tenant for the
security deposit in the event such mortgagee becomes the owner of the Building
through foreclosure or by reason of a deed in lieu thereof. Tenant agrees not to
look to any Mortgagee or Purchaser at any foreclosure sale or Grantee in a Deed
given in lieu of foreclosure for the return of any Security Deposit given to
Landlord unless Landlord has given such Deposit to any such entity.
39. QUIET POSSESSION AND OTHER COVENANTS
(a) Landlord covenants that if and so long as Tenant pays the Base Rent and
Additional Rent reserved by this Lease and performs and observes all of the
covenants, conditions, and Rules and Regulations hereof, Tenant shall quietly
enjoy the Premises, subject, however, to the terms of this Lease. Tenant
expressly agrees for it, its executors, administrators, personal
representatives, successors and assigns that the covenant of quiet enjoyment
(express or implied) and all other covenants in this Lease on the part of the
Landlord to be performed shall be binding upon the Landlord as long as Landlord
remains the ground lessee of the Land on which the Premises are located.
(b) Landlord's Warranty of Title. Landlord hereby represents and warrants
to Tenant as follows:
(i) Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx, as trustees under Land Trust
No. SR-1 ("Master Lessor") is the owner of the land underlying the
Premises.
(ii) Master Lessor has leased the land underlying the Premises to
Landlord via a ground lease (the "Master Lease"). The Master Lease is in
full force and effect. No default exists under the Master Lease with
respect to the obligations of either Master Lessor or Landlord.
31
(iii) Landlord has full right and authority to enter into this Lease.
(iv) No joinder or approval of any other person is required with
respect to Landlord's right and authority to enter into this Lease.
40. COMMON AREAS
So long as this Lease is in good standing, Tenant and Tenant's employees,
agents, servants, customers and invitees shall have a nonexclusive right to use
the Common Areas in common with the other occupants of the Building, employees,
agents, servants, customers and other invitees, subject to the Rules and
Regulations promulgated by Landlord from time to time.
41. BROKER
Tenant covenants, warrants and represents that no broker was instrumental
in consummating this Lease [10] and that no conversations or negotiations were
had with any broker [11] concerning the renting of the Premises. Tenant agrees
to hold Landlord harmless from and against, and agrees to defend at its own
expense, any and all claims for a brokerage commission by Tenant with any
brokers. [12]
42. TRANSFER BY LANDLORD
In the event that the interest or estate of Landlord in the Land or
Building shall terminate by operation of law or by bona fide sale or by
execution or foreclosure sale, or for any other reason, then and in any such
event Landlord shall be released and relieved from all liability and
responsibility as to obligations to be performed by Landlord hereunder or
otherwise. In such event, Landlord's successor, by acceptance of Rent from
Tenant hereunder, shall become liable and responsible to Tenant in respect to
all such obligations of landlord under this Lease.
43. TIME
The parties hereto agree that time is of the essence of this Lease and
applies to all terms and conditions contained herein.
44. COPIES OF LEASE
This Lease may be executed by the parties hereto in one or more
counterparts each of which shall be an original and all of which constitute one
and the same agreement. Copies of this Lease or any amendment hereto certified
by the parties to be true and correct shall be satisfactory evidence thereof for
all purposes.
45. SUCCESSORS
The terms and conditions of this Lease shall inure to the benefit of and be
binding upon any successor hereunder, as well as upon the personal
representatives, heirs, assigns (where permitted) and all other successors in
interest of the parties.
--------
[10] , other than EWR,
[11] , other than EWR,
[12] , other than EWR
32
46. CONSTRUCTION, APPLICABLE LAW
The words "Landlord" and "Tenant" as used herein shall include the plural
as well as the singular. Words used in masculine gender include the gender and
neuter. If there be more than one Landlord or Tenant, the obligations imposed
hereunder upon the Landlord or Tenant shall be joint or several. The section
headings or titles in this Lease are not a part hereof and shall have no effect
upon the construction of interpretation of any part hereof. This Lease shall be
construed and enforced under the laws of the State of Florida. Should any
provisions of this Lease be illegal or unenforceable under such laws, it or they
shall be considered severable and this Lease and its conditions shall remain in
force and be binding upon the parties hereto just as though the illegal or
unenforceable provisions had never been included herein.
47. JOINDERS
The Tenant hereby agrees to join in any and all documents pertaining the
Land and/or Building, which are requested by Landlord including, but not limited
to, land use plan amendments, zoning applications, development of regional
impact applications and all other permits, applications and/or documents, to be
filed with any governmental and/or quasi-governmental authorities with respect
to the development of all or any portion of the Building and/or property
adjacent to the Building which may now or in the future be owned by Landlord
provided that such joinder shall not unreasonably materially affect Tenant's
ability to occupy the Premises.
48. ENTIRE AGREEMENT
This Lease contains the entire agreement between the parties hereto and all
previous negotiations leading thereto, and it may be modified only by an
agreement in writing signed and sealed by Landlord and Tenant. No surrender of
the Leased Premises, or of the remainder of the terms of this Lease, shall be
valid unless accepted by landlord in writing. Tenant acknowledges and agrees
that Tenant has not relied upon any statement, representation, prior written or
prior or contemporaneous oral promises, agreements or warranties except such as
are expressed herein.
49. TYPEWRITTEN AND HANDWRITTEN PROVISIONS
To the extent that any portions of the handwritten provisions, or
amendments to this Lease conflict with the typewritten provisions, or amendments
to this Lease conflict with the typewritten provisions, then in all events, the
handwritten provisions shall prevail.
50. TENDER AND DELIVERY OF LEASE INSTRUMENT
Submission of this instrument for examination does not constitute an offer,
right of first refusal, reservation of or option for the Leased Premises or any
other space or premises in, on or about the Building. This instrument becomes
effective as a Lease upon execution and delivery by both Landlord and Tenant.
51. NO PARTNERSHIP
Nothing contained in this Lease shall be deemed or construed to create any
other relationship between the parties hereto other than that of Landlord and
Tenant.
33
52. PARKING
Tenant shall be entitled to rent one (1) parking space in the enclosed
parking garage for each 500 square feet of Net Rentable Area leased to Tenant;
accordingly, Tenant is entitled to two (2) parking spaces in the enclosed garage
at the initial cost of $75.00 per space per month for unassigned parking spaces
or $150.00 per space per month for assigned parking spaces. Assigned parking
spaces shall be designated as Tenant's spaces. Landlord shall determine any
increase in such per space cost on an annual basis based upon the following
described formula:
The parking space fee provided above shall, at the commencement of the
second Lease Year and each year thereafter (the "Rental Adjustment Date"),
increase (such new fee is referred to as the "Adjusted Parking Space Fee") at
the same rate as increases in the Consumer Price Index, all cities, all urban
consumers, all items, 1982-84 = 100, published by the United State Department of
Labor, Bureau of Labor Statistics ("Index"). The Index which is published for
the month of the Commencement Date is the beginning index ("Beginning Index").
The Parking Space Fee increase adjustment is to be calculated as follows: If the
Index published for the month Rental Adjustment Date ("Extension Index") has
increased over the Beginning Index, the Parking Space Fee for the following year
(until the next rent adjustment) shall be set by multiplying the Parking Space
Fee for the Commencement Date by a fraction, the numerator of which is the
Extension Index and the denominator of which is the Index for the previous Lease
year.
Notwithstanding anything herein to the contrary, in no event shall the
parking space fee increase in an amount less than four percent (4%) per Lease
Year.
It is understood that the Index is now being published by the Bureau of
Labor Statistics. Should said Bureau change the manner of computing the Index,
the Bureau shall be requested to furnish a conversion factor designed to adjust
the new index to the one previously in use and the adjustment to the new index
shall be made on the basis of such conversion factor. Should the publication of
the Index be discontinued by said Bureau, then such other Index as may be
published by such bureau most nearly approaching said discontinued Index shall
be used in making the adjustments herein provided. Should said Bureau
discontinue the publication of any Index herein contemplated, then such Index as
may be published by another United States Governmental Agency as most nearly
approximates the Index first above referred to shall govern and be substituted
as the Index to be used, subject to the application of an appropriate conversion
factor to be furnished by the governmental agency publishing the adopted Index.
If such governmental agency will not furnish such conversion factor, then
Landlord shall choose a conversion factor or a new Index which most nearly
approximates the Index. The decision of the Landlord in this regard shall be
final.
Parking areas for Tenant and Tenant's employees that do not park in the
enclosed parking garage shall be entitled to park in an open air surface parking
area designated by Landlord. Landlord may redesignate the open air surface
parking area from time to time in its sole and absolute discretion.
34
53. LEASE NOT TO BE RECORDED
The Tenant shall not record this Lease or any memorandum of its terms. In
addition to all other rights and remedies available to Landlord, the parties
agree that the recording of this Lease may create a cloud upon Title of the
Building and the Tenant does hereby indemnify and hold the Landlord harmless for
all loss, expenses including but not limited to attorneys' fees and court costs
through all trial and appellate levels which may be incurred by Landlord as a
result of Tenant's breach of the terms and provisions of this paragraph. In
addition to any and all other rights or remedies available at law or in equity,
Landlord shall specifically have the right to injunctive relief to cause any
memorandum in violation of this provision to be vacated of record. Landlord
reserves the right (but not the obligation) to record this Lease or any
memorandum of its terms.
54. MISCELLANEOUS
(a) All of the parties have participated fully in the negotiation and
preparation hereof; and, accordingly, this Lease shall not be more strictly
construed against any one of the parties hereto.
(b) Neither Landlord nor Tenant shall divulge the contents of this Lease to
any other party except as required by Law.
55. EXHIBITS
The following Exhibits, which are attached hereto, are incorporated into
this Lease by reference and constitute a part hereof:
(a) Exhibit "A" - Plans
(b) Exhibit "B" - Net Rentable Area and Common Area Definitions
(c) Exhibit "C" - Rules and Regulations
(d) Security Deposit Receipt
35
IN WITNESS WHEREOF, the respective parties have hereunto set their hands
and seals and caused these presents to be executed by their duly authorized
officers the date set forth below.
Signed, sealed and delivered in the presence of:
Witness: Landlord:
ONE TURNBERRY PLACE
ASSOCIATES, a Florida general
partnership
By: /s/ Illegible Signature
---------------------------------- ---------------------------------
Title: Agent
----------------------------------
(as to Landlord)
Date: May 7, 2004
---------------------------------
Tenant:
MEDICAL MAKEOVER CORP. OF
AMERICA, INC., a Florida
corporation
By: /s/ Xx. Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xx. Xxxxxxx X. Xxxxxxxxx
Title: President
----------------------------------
(as to Tenant)
Date: April 27, 2004
----------------------------------
36
EXHIBIT "A"
PLANS
37
EXHIBIT "B"
The term "Net Rentable Area", as used in this Lease, refers to (i) in the
case of a single tenancy floor, all space measured from the inside surface of
the outer glass or finished column walls of the Building to the inside surface
of the opposite outer glass or finished column wall, excluding only the areas
(the "Service Areas") within the outside walls used for building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical ducts,
but including any such areas which are for the specific use of the particular
tenant such as special stairs or elevators, and (ii) in the case of a multi-
tenancy floor, all space within the inside surface of the outer glass or
finished column walls enclosing the Tenant occupied portion of the floor and
measured to the inside surface of the walls separating areas leased by or held
for lease to other tenants or from areas devoted to corridors, elevator foyers,
rest rooms, service areas and other similar facilities of the use of all tenants
on the particular floor (which facilities are included in the "Common Areas")
which are more particularly described below, but including a proportionate part
of the Common Areas located on such floor and, in the cases of both (i) and
(ii), including a proportionate part of the Common Areas located in the
Building. No deductions from Net Rentable Area are made for columns or
projections necessary to the Building. The Net Rentable Area in the Premises and
in the Building have been calculated on the basis of the foregoing definition
and are stipulated for all purposes of this Lease to be 1,151 square feet as to
the Premises, and 139,179 square feet as to the Building, whether either
designated square footage should be more or less as a result of minor variations
resulting from actual construction and completion of the Premises for occupancy,
so long as such work is done substantially in accordance with the plans for
construction of the Building which are being used as of the date of this Lease.
"Common Areas" shall mean the following area (as initially constructed or
as the same may be enlarged or reduced at any time hereinafter): (i) any areas
devoted to lobbies, hallways, elevators, restrooms, janitorial closets, vending
areas and other similar facilities provided for the common use or benefit of
tenants generally and/of for the public located in the Building; (ii) within the
exterior walls of the Building used for mechanical rooms, electrical facilities,
telephone closets, building stairs, fire towers, elevator shafts, vents, stacks,
pipe shafts and vertical ducts (but shall not include any such areas designated
for the exclusive use or benefit of the Tenant); (iii) those portions of the
Land which are provided and maintained for the common use and benefit of
Landlord and tenants of the Building generally and employees and invitees and
licensees of Landlord and such tenants; including without limitation all parking
areas (other than the parking garage) and all streets, sidewalks and landscaped
areas comprising the Land; and (iv) those portions of other property which may
be adjacent to the Building which areas are maintained and used for the common
use and benefit of Landlord, tenants in the Building generally and/or tenant
leasing portions of the property adjacent to the Building, i.e., in the event
there was an access drive which was located on the Land and other property
adjacent to the Building over which Tenant and other tenants in the Building
were permitted to have access, such area(s) would be considered Common Areas for
purposes of this Lease.
38
EXHIBIT "C"
RULES AND REGULATIONS
1. Tenant, its officers, agents, servants and employees shall not block or
obstruct any of the entries, passages, doors, elevators, elevator doors,
hallways or stairways of Building or place, empty or throw any rubbish,
litter, trash or material of any nature into such areas, or permit such
areas to be used at anytime except for ingress and egress of Tenant, its
officers, agents, servants, employees, patrons, licensees, customers,
visitors or invitees.
2. No sign, door plaque, advertisement or notice shall be displayed, painted
or affixed by Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors or invitees in or on any part of the outside
or inside of Building, or Leased Premises without prior written consent of
Landlord and then only of such color, size, character, style and material
and in such places as shall be approved and designated by Landlord. Signs
on doors and entrances to Leased premises shall be placed thereon by a
contractor designated by Landlord and paid for by Tenant.
3. Landlord will not be responsible for lost or stolen property, equipment,
money or any article taken from Leased Premises, Building or common
facilities regardless of how or when loss occurs.
4. Tenant, its officers, agents, servants, and employees shall not install or
operate any refrigerating, heating or air conditioning apparatus or carry
on any mechanical operation or bring into Leased Premises, Building or
common facilities any inflammable fluids or explosives without written
permission of Landlord.
5. Tenant, its officers, agents, servants or employees shal not use Leased
Premises, Building or common facilities for housing, lodging or sleeping
purposes or for the cooking or preparation of food without the prior
written consent of Landlord.
6. No additional locks shall be placed on any door in Building without the
prior written consent of Landlord. Landlord will furnish two keys to each
lock on doors in the Leased Premises and Landlord, upon request of Tenant,
shall provide additional duplicate keys at Tenant's expense. Landlord may
at all times keep a pass key to the Leased Premises. All keys shall be
returned to Landlord promptly upon termination of this Lease.
7. Landlord reserves the right to close Building at 7:00 P.M., subject,
however, to Tenant's right to admittance under regulations prescribed by
Landlord, and to require that persons entering the Building identify
themselves and establish their right to enter or to leave the Building.
8. All plate and other glass now in Leased Premises or Building which is
broken through cause attributable to Tenant, its officers, agents,
servants, employees, patrons, licensees, customers, visitors or invitees
shall be replaced by and at expense of Tenant under the direction of
Landlord.
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9. Tenant shall give Landlord prompt notice of all accident to or defects in
air conditioning equipment, plumbing electric facilities or any part or
appurtenance of Leased Premises.
10. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of these provisions shall be borne by Tenant,
who shall, or whose officers, employees, agents, servants, patrons,
customers, licensees, visitors or invitees shall have caused it.
11. All contractors and/or technicians performing work for Tenant within the
Leased Premises or Building shall be referred to Landlord for approval
before performing such work. This shall apply to all work including, but
not limited to, installation of telephones, telegraph equipment, electrical
devices and attachments, and all installation affecting floors, walls,
windows, doors , ceilings, equipment or any other physical feature of the
Building or Leased Premises. None of this work shall be done by Tenant
without Landlord's prior written approval.
12. Glass panel doors that reflect or admit light into the passageways or into
any place in the Building shall not be covered or obstructed by the Tenant
and Tenant shall not permit, erect and/or place drapes, furniture,
fixtures, shelving, display cases or tables, lights or signs, any
advertising devices in front of or in proximity of interior and exterior
windows, glass panels or glass doors providing a view into the interior of
the Leased Premises unless same shall have first been approved in writing
by Landlord.
13. No space in the Building shall, without the prior writte consent of the
Landlord, be used for manufacturing, public sales, or for the storage of
merchandise, or for the sale of merchandise, goods or property of any kind,
or auction.
14. Canvassing, soliciting, and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same. In this respect, Tenant shall
promptly report such activities to the building Manager's office.
15. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers of others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
16. Neither Tenant nor any officer, agent, employee, servant patron, customer,
visitor, licensee or invitee of any tenant shall go upon the roof of the
Building without the written consent of the Landlord.
17. The Landlord's janitors or cleaning personnel shall not be hindered by
Tenant after 5:30 P.M., and such work may be done at any time when the
offices are vacant. The windows, doors and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles,
cabinets, bookcases, map cases, etc., necessary to prevent unreasonable
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hardship to Landlord in discharging its obligations regarding cleaning
service. In this regard, Tenant shall also empty all glasses, cups and
other containers holding any type of liquid whatsoever.
18. In the event Tenant must dispose of crates, boxes, etc., which will not fit
into office wastepaper baskets, it will be the responsibility of Tenant to
dispose of same. In no event shall Tenant set such items in the public
hallways or other areas of the Building, excepting Tenant's own Premises,
for disposal.
19. Tenant will be responsible for any damage to the Leased Premises, including
carpeting and flooring, as a result of: rust or corrosion of file cabinets;
roller chairs, metal objects; or, spills of any type of liquid.
20. If the Premises demised to any Tenant become infested with vermin, such
Tenant, at its sole cost and expense, shall cause its premises to be
exterminated from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
21. Tenant shall not install any antenna or aerial wires, or radio or
television equipment, or any other type of equipment, inside or outside of
the Building, without Landlord's prior approval in writing, and upon such
terms and conditions as may be specified by Landlord in each and every
instance.
22. Landlord shall have the power to prescribe the weight an position of iron
safes and machinery, and they shall in all cases stand on two-inch thick
planks to distribute the weight, and the expense of repairing any damage
done to the Building by installing or removing a safe or machinery, or by
the same while on the premises, shall be borne by Tenant. Safes and
machinery shall not be moved into or out of the Building except by persons
approved of and at times fixed by the Superintendent. No freight,
furniture, packages or bulky matter of any description will be received in
the Building, or carried up or down in the elevators, except during the
hours designated by Landlord, Tenant agrees that all machines or machinery
placed in the Premises by Tenant will be erected and placed so as to
prevent any vibration or annoyance to any other of the tenants in the
Building of which the premises are a part, and it is agreed that upon
written request of the Landlord, Tenant will, within ten (10) days after
the mailing of such notice, provide approved settings for the absorbing,
preventing, or decreasing of noise from any or all machines or machinery
placed in the premises.
23. Tenant shall not obtain any towel supply or ice service except from persons
designated by Landlord, nor obtain drinking water for delivery on the
premises from any source not approved by Landlord.
24. In case Landlord shall, in the exercise of any right herein granted, store
any personal property, belonging to Tenant, Landlord shall have the further
right to dispose of such
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property by sale or otherwise upon two weeks' notice in writing for that
purpose. If Landlord shall sell any such property, Landlord shall be
entitled to retain from the proceeds thereof the expenses of the sale and
cost of storage.
25. Landlord shall have the right to prohibit any advertisin by Tenant which in
Landlord's opinion is harmful to the Building, its reputation or its
desirability as an office Building. Tenant shall discontinue such
advertising immediately upon written notification by Landlord.
26. Tenant, its officers, agents, servants, and employees shall not be
permitted to bring dogs into the Leased Premises, Building or common
facilities for any reason other than to assist the blind or physically
handicapped.
27. Landlord reserves the right to modify the foregoing rule and regulations,
or any of the them, and to make such other and further rules and
regulations as in its absolute judgment may from time to time be needful
for the reputation, safety, care and cleanliness of the Building, and for
the preservation of good order therein, and any such other and further
rules and regulations shall be binding upon the parties hereto with the
same force and effect as if they had been inserted at the time of the
execution hereof.
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RIDER - SECURITY DEPOSIT RECEIPT
Date: April 27, 2004
RECEIPT is acknowledged of the sum of:
as security for the faithful performance of the lease (the "Lease") executed on
April 27, 2004 , between ONE TURNBERRY PLACE ASSOCIATES, as Landlord, and
MEDICAL MAKEOVER CORP. OF AMERICA, INC. as Tenant, for premises located on the
__ floor of ONE TURNBERRY PLACE, which deposit is subject to the terms and
conditions set forth in said Lease.
RECEIVED BY:
ONE TURNBERRY PLACE ASSOCIATES,
a Florida general partnership
BY:
Owner's Agent
