Exhibit 10.45
ASSIGNMENT AND ASSUMPTION OF LEASE AND
THIRD AMENDMENT TO LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND THIRD AMENDMENT TO LEASE AGREEMENT
(the "Third Amendment") is made and entered into as of 30th day of November,
2004, by and between Highwoods Non-Orlando, LLC, as trustee under an unrecorded
land trust agreement, dated as of October 9, 2000, known as Tampa Properties
Trust, by Highwoods Realty Limited Partnership as property manager, having an
office at 0000 X. Xx. Xxxxxx Xxxxxx Xxxx, Xx. Xxxxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000, as successor in interest to Highwoods/Florida Holdings, L.P.
("Landlords") CompBenefits Corporation ("Assignor"), and CompBenefits Dental and
Vision Company, a Florida corporation ("Assignee" or "Tenant").
WITNESSETH
A. Landlord and Assignor entered into a Lease Agreement (the "Original Lease")
dated June 8, 1994, subsequently modified and amended by a certain First
Amendment to Lease Agreement dated December 3, 1998, and by a certain
Second Amendment to Lease Agreement dated August 31, 2001 (such documents
are collectively hereinafter referred to as the "Lease") and relating to
certain premises (the "Premises") in the building known as Tower Place,
having a street address of 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx
00000 (the "Building").
B. Assignor desires to amend the Lease to, among other things, extend the term
of the Lease until December 31, 2009, as to a portion of the Premises, and
to assign its interest in and to the Lease and the Premises to Assignee.
Landlord has agreed to consent to this amendment and assignment on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the following provisions and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth hereinabove are true and correct, and such
recitals and the Lease are incorporated herein by this reference.
2. Assignment and Assumption of Lease. (a) Assignor does hereby assign, transfer
and set over unto Assignee all of its right, title and interest in and to the
Lease and the Premises subject to the rental, terms, covenants and conditions
thereof. Assignor represents, warrants and covenants with respect to the Lease:
(i) that the Lease is valid and in full force and effect;
(ii) that Assignor has the full right, power and authority to assign
the Lease and has made no prior assignment thereof; and
(iii) that Assignor shall indemnify and hold Assignee harmless with
respect to the Lease insofar as any default, claim, liability, event or
occurrence taking place prior to the date hereof is concerned.
(b) Assignee does hereby acknowledge receipt of the Lease and does hereby
accept and assume full responsibility, including direct performance, of all of
Assignor's duties and obligations thereunder from and after the date hereof with
respect thereto, and Assignee agrees to indemnify and hold Assignor harmless
with respect thereto insofar as any default, claim, liability, event or
occurrence hereafter taking place is concerned. Simultaneously herewith,
Assignor has entered into that certain Guaranty whereby Assignor guarantees
Assignee's obligations under the Lease, and Landlord does hereby release
Assignor from all obligations under the Lease arising from and after the date of
this Third Amendment, but Assignor shall remain liable for any default, claim,
liability, event or occurrence arising prior to the date of this Third
Amendment.
3. Leased Premises. Assignor currently leases Suites 610 and 620 on the sixth
floor of the Building, Suite 870 on the eighth floor of the Building, and Suite
1000 on the tenth floor, consisting in the aggregate of 24,886 rentable square
feet. Effective April 1, 2005, Suites 610 and 620 will be reduced by 1,573
rentable square feet (the "Xxxxxx Space") by virtue of the exercise of an
option as to such space by Xxx X. Xxxxxx, an adjacent tenant ("Xxxxxx") as shown
on Exhibit A, Suites 610 and 620, as reconfigured and reduced, together with
Suite 1000 as shown on Exhibit A (con't), consist in the aggregate of 18,451
rentable square feet and are sometimes hereinafter referred to collectively as
the "Extension
(initials)
Premises." Suite 870, which is currently subleased to Xxxx Xxxxxxx Life
Insurance Company, consists of 4,862 rentable square feet. Landlord does hereby
ratify and affirm its consent to the sublease.
4. Term. The Lease Term for Suites 610, 620, and 1000 is currently scheduled to
terminate at midnight, December 31, 2004. The Lease Term for the Extension
Premises is hereby extended and shall expire at midnight, December 31, 2009 (the
"Extension Expiration Date"). Assignee shall continue to have the use of the
Xxxxxx Space until the earlier of March 31, 2005, or such time as the Work
defined in Lease Addendum Number One hereof has been completed and the Xxxxxx
Space delivered to Xxxxxx such use to be free of rent but otherwise subject to
the terms of the Lease. The period from January 1, 2005 (the "Extension
Commencement Date") to the Extension Expiration Date shall hereinafter be
referred to as the "Extended Term." The Lease Term for Suite 870 terminates at
midnight, February 28, 2007, and is unaffected by this Third Amendment.
5. Rent. Base Rent for the Extension Premises for the Extended Term shall total
$2,024,997.35, and has been determined as follows:
Area Rate per Monthly Annual
Period Leased Sq. Ft. Base Rent Base Rent
------ ------ -------- ---------- -------------
1/1/05 - 1/31/05 18,451 $ 0 $ 0 $ 0
2/1/05 - 12/31/05 18,451 $21.00 $32,289.25 $ 355,181.75
1/1/06 - 12/31/06 18,451 $21.63 $33,257.93 $ 399,095.16
1/1/07 - 12/31/07 18,451 $22.28 $34,257.36 $ 411,088.32
1/1/08 - 12/31/08 18,451 $22.95 $35,287.54 $ 423,450.48
1/1/09 - 12/31/09 18,451 $23.64 $36,348.47 $ 436,181.64
Total: $2,024,997.35
Base Rent for Suite 870 shall remain unchanged, and as of January 1, 2005, shall
be as follows:
Area Rate per Monthly Annual
Period Leased Sq. Ft. Base Rent Base Rent
------ ------ -------- ---------- -----------
1/1/05 - 2/28/05 4,862 $23.24 $ 9,416.07 $112,992.88
3/1/05 - 2/28/06 4,862 $24.04 $ 9,740.21 $116,882.48
3/1/06 - 2/28/07 4,862 $24.76 $10,031.93 $120,383.12
Total: $350,258.48
The above amounts do not include applicable Florida State sales and use taxes,
which taxes shall be paid by Assignee with each payment of Base Rent.
6. Tenant Improvements. Landlord shall provide Assignee with a tenant
improvement allowance of $13.00 per rentable square foot of the Extension
Premises (the "Allowance"). The Allowance and construction of tenant
improvements shall be governed by the terms of Lease Addendum Number One
attached hereto as a part hereof.
7. Additional Rent. During the Extended Term, Assignee's contribution toward
Real Estate Taxes, Operating Expenses and utilities as to the Extension Premises
shall be based upon Assignee's prorata share that exceeds the estimated tax and
Operating Expenses for the year 2005, and shall be governed by the provisions of
Lease Addendum Number Two attached hereto as a part hereof. Assignee's
contribution toward Real Estate Taxes, Operating Expenses and utilities as to
Suite 870 shall remain unchanged.
8. Renewal Option. Effective as of the end of the Extended Term, Assignee shall
have the right and option to renew the Lease as to the Extension Premises for
two additional periods of five (5) years each on the terms set forth in Lease
Addendum Number Three attached hereto as a part hereof. Assignee shall have no
right to extend the Lease Term as to Suite 870.
9. Right of First Offering. Subject to existing Tenant's rights, Assignee shall
have a continuing right of first offering to lease (at Assignee's option) all
adjacent space on the sixth floor of the Building when such space becomes
available for lease. Landlord shall provide written notice prior to offering for
lease such vacant space or space that will become available. Assignee shall then
have five (5) business days within which to accept such space and fifteen (15)
days within which to enter into a signed amendment to lease. Landlord's notice
will include the proposed rental terms for such space. Rental rate and other
Landlord concessions contained in the offering will be consistent with those
then
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offered on similar space in other Class A office buildings in the Westshore
Business District. Assignee and Landlord acknowledge that the existing tenant(s)
currently under lease on the sixth (6th) floor of the Building have renewal
rights and Assignee's rights under this Right of First Offering shall be subject
to those rights.
10. Assignment and Subletting.
a. Landlord Consent. Assignee may not assign or encumber this Lease or its
interest in the Premises or any portion thereof arising under this Lease, and
may not sublet all or any part of the Premises without first obtaining the
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Factors in addition to the ones contained in Section 10
of the Original Lease that Landlord may consider in deciding whether to consent
to an assignment or sublease include (without limitation), (i) the
creditworthiness of the assignee, (ii) the proposed use of the Premises, (iii)
whether the assignee or sublessee will vacate other space owned in the Building,
(iv) whether Landlord is negotiating with the proposed sublessee or assignee for
a lease of other space in the Building unless such negotiation does not result
in an executed lease within twelve (12) months after the date the space was
offered to the proposed sublessee or assignee (for purposes of this Section
10(a)(iv), the terms "negotiation" or "negotiating" shall mean that Landlord and
the proposed assignee or sublessee shall have exchanged at least one offer and
counteroffer regarding such leasing), and (v) any non-standard renovations to
the Premises or special services required by the assignee or sublessee. Landlord
will not consent to an assignment or sublease that might result in a use that
conflicts with the rights of any existing tenant. One consent shall not be the
basis for any further consent.
b. Definition of Assignment. For the purpose of this Section 10, the word
"assignment" shall be defined and deemed to include the following: (i) if
Assignee is a partnership, the withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning thirty percent (30%) or
more of the partnership, or the dissolution of the partnership; (ii) if Assignee
consists of more than one person, an assignment, whether voluntary, involuntary,
or by operation of law, by one person to one of the other persons that is an
Assignee; (iii) if Assignee is a corporation, any dissolution or reorganization
of Assignee, or the sale or other transfer of a controlling percentage
(hereafter defined) of capital stock of Assignee other than to an affiliate or
subsidiary or the sale of fifty-one percent (51%) in value of the assets of
Assignee; (iv) if Assignee is a limited liability company, the change of members
whose interest in the company is fifty percent (50%) or more. The phrase
"controlling percentage" means the ownership of, and the right to vote, stock
possessing at least fifty-one percent (51%) of the total combined voting power
of all classes of Assignee's capital stock issued, outstanding and entitled to
vote for the election of directors, or such lesser percentage as is required to
provide actual control over the affairs of the corporation; except that, if the
Assignee is a publicly traded company, public trades or sales of the Assignee's
stock on a national stock exchange shall not be considered an assignment
hereunder even if the aggregate of the trades of sales exceeds fifty percent
(50%) of the capital stock of the company.
c. Permitted Assignments/Subleases. Notwithstanding the foregoing, Assignee
may assign this Lease or sublease part or all of the Premises without Landlord's
consent to: (i) any corporation, limited liability company, or partnership that
controls, is controlled by, or is under common control with, Assignee as of the
date of this Third Amendment; or (ii) any corporation or limited liability
company resulting from the merger or consolidation with Assignee or to any
entity that acquires all of Assignee's assets as a going concern of the business
that is being conducted on the Premises; provided however, the assignor remains
liable under the Lease and the assignee or sublessee is a bona fide entity and
assumes the obligations of Assignee, is as creditworthy as the Assignee, and
continues the same Permitted Use as provided hereunder.
d. Notice to Landlord. Landlord must be given prior written notice of every
assignment or subletting, and failure to do so shall be a default hereunder.
e. Prohibited Assignments/Subleases. In no event shall this Lease be
assignable by operation of any law, and Assignee's rights hereunder may not
become, and shall not be listed by Assignee as an asset under any bankruptcy,
insolvency or reorganization proceedings. Acceptance of Rent by Landlord after
any non-permitted assignment or sublease shall not constitute approval thereof
by Landlord.
(initials)
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f. Limitation on Rights of Assignee/Sublessee. Any sublease for which
Landlord's consent is required shall not include the right to exercise any
options to renew the Lease Term, expand the Premises, cancel the Lease, or
similar options, unless specifically provided for in the consent.
g. Assignee. Not Released. No assignment or sublease shall release Assignee
of any of its obligations under this Lease.
h. Landlord's Right to Collect Sublease Rents upon Assignee Default. If the
Extension Premises (or any portion) is sublet and Assignee defaults under its
obligations to Landlord, then Landlord is authorized, at its option, to collect
all sublease rents directly from the sublessee. Assignee hereby assigns the
right to collect the sublease rents to Landlord in the event of Assignee
default. The collection of sublease rents by Landlord shall not relieve Assignee
of its obligations under this Lease, nor shall it create a contractual
relationship between sublessee and Landlord or give sublessee any greater estate
or right to the Premises than contained in its sublease.
i. Excess Rents. If Assignee, assigns this Lease or subleases all or part
of the Premises at a rental rate that exceeds the rentals paid to Landlord, then
one-half (1/2) of any such excess rent actually received by Assignee (net of
brokerage commissions, improvement allowances, rental abatements and other
incentives, and other transaction costs) shall be paid over to Landlord by
Assignee.
j. Landlord's Fees. Assignee shall pay Landlord an administration fee of
$500.00 per assignment or sublease transaction for which consent is required.
k. Unauthorized Assignment or Sublease. Any unauthorized assignment or
sublease shall constitute a default under the terms of this Lease and, at the
option of Landlord, shall be void.
11. Non-Disturbance. After this Third Amendment is fully executed, Landlord
agrees to use reasonable efforts to obtain a non-disturbance agreement from the
present mortgagee of the real property and/or the Building on such mortgagee's
standard form for such purposes, however, such efforts shall not require
Landlord to commence litigation nor to expend any costs or expenses, including
attorneys' fees in doing so, unless such costs and expenses are paid by
Assignee.
12. Signage. Except as expressly provided in this Section 12. Assignee may not
erect, install or display any sign or advertising material upon the exterior of
the Building or Premises (including any exterior doors, walls or windows)
without the prior written consent of Landlord, which consent may be withheld in
Landlord's sole discretion. All door, directory and other signage provided for
herein shall be provided and installed by the Landlord in accordance with
building standards at Assignee's expense. Notwithstanding the foregoing,
Assignee shall be entitled to signage on the exterior building monument sign,
lobby directory signage consistent with that serving other tenants of the
Building, and signage at the entrances of the Premises. The cost of such signage
will be paid from the Allowance.
13. Brokerage. Landlord and Assignee acknowledge and agree that Landlord will
pay a brokerage fee in connection with the Third Amendment to Summit Advisors
("Broker") pursuant to separate agreement. Each of Landlord and Assignee
represents and warrants to the other that it has not dealt with any other real
estate broker, finder or other person other than Broker with respect to this
Third Amendment. Each party shall indemnify and hold the other party harmless
from any and all damages resulting from claims that may be asserted against the
other party arising out of any breach by such indemnifying party of its
representation and warranty contained in this Section 13. The provisions of this
Paragraph 13 shall survive the termination of the Lease.
14. Parking. For Suites 610,620 and 1000, Tenant shall be entitled to use five
(5) parking spaces per 1,000 rentable square feet leased pursuant to Exhibit D
of the Second Amendment.
15. Access to the Premises.
a. Assignee's Access. Assignee, its agents, employees, invitees, and
guests, shall have access to the Premises and reasonable ingress and egress to
common and public areas of the Building twenty-four hours a day, seven days a
week; provided, however, Landlord by reasonable regulation may control such
access for the comfort, convenience, safety and protection of all tenants in the
Building, or as needed for making repairs and alterations. Assignee shall be
responsible for providing access to
(initials)
4
the Premises to its agents, employees, invitees and guests after business hours
and on weekends and holidays, but in no event shall Assignee's use of and access
to the Premises during non-business hours compromise the security of the
Building.
b. Landlord's Access. Landlord shall have the right, at all reasonable
times and upon reasonable oral notice, either itself or through its authorized
agents, to enter the Premises (i) to make repairs, alterations or changes as
Landlord deems necessary, (ii) to inspect the Premises, mechanical systems and
electrical devices, and (iii) to show the Premises to prospective mortgagees and
purchasers. Within three hundred sixty five (365) days prior to the Extension
Expiration Date (as to the Extension Premises) or the Expiration Date (as to
Suite 870) Landlord shall have the right, either itself or through its
authorized agents, to enter the Premises at all reasonable times to show
prospective tenants.
c. Emergency Access. Landlord shall have the right to enter the Premises at
any time without notice in the event of an emergency.
16. Access Cards. In the event Assignee needs additional proximity cards, the
first ten (10) cards issued to Assignee shall be at a cost of $15.00 per card
and then $20.00 per additional card.
17. Radon Disclosure. The following is given to comply with Section 404.056(8),
Florida Statutes: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over a time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
18. No Smoking. Assignee shall not allow any smoking in the Premises except in
the rooms designed and constructed to accommodate smoking and to prevent smoke
from entering the plenum or any other portion of the Premises or the Building.
Landlord reserves the right to promulgate additional rules for the Building
which may include fines upon tenants of the building who do not cause their
employees and invitees to comply with rules prohibiting or limiting smoking in
the Premises, the Building and/or areas adjacent to the Building.
19. Other Lease Provisions. Except as amended by this Third Amendment, the Lease
and all of its terms and provisions shall remain in full force and effect. In
the event of any conflict between the provisions of this Third Amendment and
provision of the Lease, the provisions of this Third Amendment shall control.
All capitalized terms herein shall have the same meanings as they have in the
Lease, unless otherwise defined herein.
20. No Default by Landlord. Assignee hereby acknowledges that to the best of
Assignee's current actual knowledge, without investigation or inquiry, as of the
date of execution of this Third Amendment, there exists no defenses or offsets
to enforcement of the Lease by Landlord and Landlord is not in default in the
performance of the Lease. Landlord acknowledges that to the best of Landlord's
current actual knowledge, without investigation or inquiry, as of the date of
execution of this Third Amendment Assignee is not in default under the Lease.
21. Notice of Default. Notwithstanding any provision of the Lease to the
contrary. Assignee shall be in default under this Lease if Assignee fails to pay
when due any Base Rent, Additional rent, or any other sum of money which
Assignee is obligated to pay, as provided in this Lease, within five (5) days
after notice of such failure except that Landlord shall not be required to give
more than two (2) such notices in any calendar year, and after the giving of
such two notices in the same calendar year, Assignee's failure to pay when due
any such payment within the same calendar year shall be deemed to constitute a
default without the of notice.
22. Holding Over. Notwithstanding any provision of the Lease to the contrary, if
Assignee holds over after the Expiration Date or other termination of this
Lease, such holding over shall not be a renewal of this Lease but shall create a
tenancy-at-will. Assignee shall continue to be bound by all of the terms and
conditions of this Lease, except that during such tenancy-at-will Assignee shall
pay to Landlord (i) Base Rent at the rate equal to one hundred and fifty percent
150% of that provided for as of the expiration or termination date, and (ii) any
and all Operating Expenses and other forms of Additional Rent payable under this
Lease.
23. Florida Law. This Third Amendment and the Lease shall be construed and
interpreted under the laws of the State of Florida.
(initials)
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24. Effective Date. The submission of this Amendment to Assignee for review does
not constitute a reservation of or option for the Premises, and this Amendment
shall become effective as a contract only upon the execution and delivery by
both Landlord and Assignee. The date of execution shall be entered on the top of
the first page of this Amendment by Landlord, and shall be the date on which the
last party signed the Lease, or as otherwise may be specifically agreed by both
parties. Such date, once inserted, shall be established as the final day of
ratification by all parties to this Amendment, and shall be the date for use
throughout this Amendment as the "Effective Date".
IN WITNESS WHEREOF, this Third Amendment has been duly executed by the parties
hereto effective as of the Effective Date.
LANDLORD:
WITNESSES: Highwoods Non-Orlando, LLC, a Delaware
limited liability company, as trustee
under an unrecorded land trust agreement
dated October 9, 2000, known as Tampa
Properties Trust
/s/ Xxxxx Xxxxx By: Highwoods Realty Limited
------------------------------------- Partnership, A North Carolina
Xxxxx Xxxxx limited partnership, as Agent
Print Name
By: Highwoods Properties, Inc., a
Maryland corporation, its sole
general partner
/s/ Xxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
XXX XXXXXXX Xxxxxxx X. Xxxxxx
Print Name Title: Vice President - Tampa
Date: 11/30/04
ASSIGNOR:
CompBenefits Corporation
WITNESSES:
/s/ Xxxxxx Xxxxxxxx By: /s/ XXXXX X. XXXXXXXX
------------------------------------- ------------------------------------
Xxxxxx Xxxxxxxx XXXXX X. XXXXXXXX
Print Name Print Name
Title: EX VP
Date: 11/18/04
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx
Print Name
(initials)
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ASSIGNEE:
CompBenefits Dental and Vision Company
WITNESSES:
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
/s/ Xxxxxx Xxxxxxxx XXXXX X. XXXXXXXX
------------------------------------- Print Name
Xxxxxx Xxxxxxx Title: EX VP
Print Name Date: 11/18/04
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx
Print Name
(initials)
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EXHIBIT A
[PREMISES]
(FLOOR PLAN)
(initials)
8
EXHIBIT A (CON'T)
SUITE 1000
(FLOOR PLAN)
(initials)
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LEASE ADDENDUM NUMBER ONE
[WORK LETTER: ALLOWANCE]
WORK LETTER. This Lease Addendum Number One (the "First Addendum") sets forth
the rights and obligations of Landlord and Assignee with respect to space
planning, engineering, final workshop drawings, and the construction and
installation of any improvements to the Extension Premises ("Tenant
Improvements"). The performance of this work will proceed in four stages in
accordance with the following schedule: (i) preparation of a space plan; (ii)
final design and engineering and preparation of final plans and working
drawings; (iii) preparation by the Contractor (as hereinafter defined) of an
estimate of the additional cost of the initial Tenant Improvements; (iv)
submission and approval of plans by appropriate governmental authorities and
construction and installation of the Tenant Improvements. Assignee will continue
to occupy the Premises during construction of the Tenant Improvements, which
Landlord anticipates will be completed no later than March 31, 2005.
In consideration of the mutual covenants hereinafter contained, Landlord
and Assignee do mutually agree to the following:
1. ALLOWANCE. Landlord agrees to provide an allowance of up to $13.00 per
rentable square foot of the Extension Premises, to design, engineer, install,
supply and otherwise to construct the Tenant Improvements in the Extension
Premises that will become a part of the Building (the "Allowance"). Assignee is
fully responsible for the payment of all costs in connection with the Tenant
Improvements in excess of the Allowance. Any portion of the Allowance not used
to complete the Tenant Improvements may be applied by Assignee to purchase of
Assignee's telecommunications equipment and facilities, voice and date cabling,
moving expenses, security systems and furniture, the cost of which, up to the
unused portion of the Allowance, will be reimbursed to Assignee upon
presentation by Assignee to Landlord of paid invoices therefor. This Allowance
is only available to Assignee for Assignee's use within three hundred sixty
(360) days of Extension Commencement Date ("Allowance Use Date"). Any portion of
the Allowance not used by Assignee by the Allowance Use Date shall automatically
terminate and be of no further use to Assignee.
2. SPACE PLANNING, DESIGN AND WORKING DRAWINGS. Assignee has selected
Xxxxxxxxx Xxxxxx, Inc. who shall coordinate with Xxxxxxx Architects and Xxxxx
and Anglin Engineers ("Architect"), who will do the following at Assignee's
expense (which expense may be deducted from the Allowance):
a. Attend a reasonable number of meetings with Assignee to define
Assignee's requirements.
b. Complete construction drawings for Assignee's partition layout,
reflected ceiling grid, telephone and electrical outlets, keying, and
finish schedule.
c. Complete building standard mechanical plans where necessary (for
installation of air conditioning system and duct work, and heating and
electrical facilities) for the work to be done in the Extension Premises.
d. All plans and working drawings for the construction and completion
of the Extension Premises (the "Plans") shall be subject to Landlord's
prior written approval. Any changes or modifications Assignee desires to
make to the Plans shall also be subject to Landlord's prior approval.
Landlord agrees that it will not unreasonably withhold its approval of the
Plans, or of any changes or modifications thereof; provided, however,
Landlord shall have sole and absolute discretion to approve or disapprove
any improvements that will be visible to the exterior of the Extension
Premises, or which may affect the structural integrity of the Building or
exceed the capacity of the Building mechanical, electrical or plumbing
systems. Any approval of the Plans by Landlord shall not constitute
approval of any Delays caused by Assignee and shall not be deemed a waiver
of any rights or remedies that may arise as a result of such Delays.
Landlord may condition its approval of the Plans if: (i) the estimated cost
for any improvements under the Plan is more than the Allowance.
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3. TENANT PLAN DELIVERY DATE.
a. Assignee shall work in good faith with Architect to complete an
approved space plan for the Extension Premises within thirty (30) business
days of execution of this Third Amendment.
b. Assignee covenants and agrees work with Architect so that final
Plans for the Tenant Improvements can be completed within sixty (60)
business days of execution of this Third Amendment (the "Tenant Plan
Delivery Date"). Time is of the essence in the delivery of the final Plans.
It is vital that the final Plans be delivered to Landlord by the Tenant
Plan Delivery Date in order to allow Landlord sufficient time to review
such Plans, to discuss with Assignee any changes therein which Landlord
believes to be necessary or desirable, to enable the Contractor to prepare
an estimate of the cost of the Tenant Improvements, to obtain required
permits, and to substantially complete the Tenant Improvements within the
time frame provided in this Third Amendment.
4. WORK AND MATERIALS AT ASSIGNEE'S EXPENSE. On Assignee's behalf and in
consultation with Assignee, Landlord shall select, from not less than three to
five qualified candidates in a closed bid process, a licensed general contractor
or contractors (the "Contractor") to construct and install the Tenant
Improvements in accordance with the Plans (the "Work") at Assignee's expense
(which expense may be deducted from the Allowance). Assignee agrees that the
Contractor may be an affiliate of Landlord. Landlord shall coordinate and
facilitate all communications between Assignee and the Contractor.
a. Prior to commencing Work, Landlord shall submit to Assignee in
writing the cost of the Work, which shall include (i) the Contractor's cost
for completing the Work (including the Contractor's general conditions,
overhead and profit). Assignee shall have five (5) business days to review
and approve the cost of the Work. Landlord shall not authorize the
Contractor to proceed with the work until the cost is mutually agreed upon
and approved in writing and delivered to Landlord.
b. Any changes in the approved cost of the Work shall be by written
change order signed by the Assignee. Assignee agrees to process change
orders in a timely fashion. Assignee acknowledges that the following items
may result in change orders:
i. Municipal or other governmental inspectors require changes to
the Extension Premises such as additional exit lights, fire damper or
whatever other changes they may require. In such event, Landlord will
notify the Assignee of the required changes, but the cost of such
changes and any delay associated with such changes shall be the
responsibility of the Assignee.
ii. Assignee makes changes to the Plans or requests additional
work. Assignee will be notified of the cost and any delays that would
result from the change by a change order signed by Assignee
before the changes are implemented. Any delays caused by such changes
shall not delay the Extension Commencement Date.
iii. Materials are not readily available, require quick ship
charges, or require substitution.
iv. The upfit schedule requires Express Review to get permits,
which will increase the costs of the permitting process.
c. All work performed in connection with the construction of the
Extension Premises shall be performed in a good and workmanlike manner and
in accordance with all applicable laws and regulations and with the final
approved Plans.
5. Intentionally omitted.
(initials)
11
6. ASSIGNEE DELAY.
The following shall be considered a Assignee delay:
i. Assignee's failure to approve the space plan within the time
specified;
ii. Assignee's failure to furnish to Landlord the final Plans on
or before the Tenant Plan Delivery Date;
iii. Assignee's failure to approve Landlord's cost estimates
within the time specified;
iv. Assignee's failure to timely respond to change orders;
v. Assignee's changes in the Tenant Improvements or the Plans
(notwithstanding Landlord's approval of any such changes);
vi. Assignee's request for changes in or modifications to the
Plans subsequent to the Tenant Plan Delivery Date;
vii. Inability to obtain materials, finishes or installations
requested by Assignee that are not part of the Building Standard
Improvements;
viii. The performance of any work by any person, firm or
corporation employed or retained by Assignee; or
ix. Any other act or omission by Assignee or its agents,
representatives, and/or employees;
7. ASSIGNEE IMPROVEMENT EXPENSES IN EXCESS OF THE ALLOWANCE. Assignee.
agrees to pay to Landlord, promptly upon being billed therefor, all costs and
expenses in excess of the Allowance incurred in connection with the Tenant
Improvements. Assignee will be billed for such costs and expenses as follows:
(i) FIFTY PERCENT (50%) of such costs and expenses shall be due and payable upon
Assignee's approval of the cost estimates for the Tenant Improvements; and (ii)
FIFTY PERCENT (50%) of such costs and expenses shall be due and payable when
such work is substantially completed.
8. REPAIRS AND CORRECTIONS. Landlord shall select a Contractor who will
provide Assignee a one-year warranty from the date of delivery of the Extension
Premises, transferable to Assignee, for defective workmanship and materials. All
manufacturers' and builders' warranties with respect to the Work shall be issued
to or transferred to Assignee, without recourse to the Landlord. Assignee
shall repair or correct any defective work or materials installed by Assignee or
any contractor other than the Contractor selected by Landlord, or any work or
materials that prove defective as a result of any act or omission of Assignee or
any of its employees, agents, invitees, licensees, subtenants, customers,
clients, or guests.
9. INSPECTION OF EXTENSION PREMISES; POSSESSION BY ASSIGNEE. Prior to
taking possession of the Extension Premises, Assignee and Landlord shall inspect
the Extension Premises and Assignee shall give Landlord notice of any defects or
incomplete work ("Punchlist").
10. ASSIGNEE'S ACTIONS DURING CONSTRUCTION. Assignee shall coordinate with
Contractor the construction of the Tenant Improvements so as to minimize
Assignee's interference with the Work and to minimize to the extent practical
under the circumstances the disruption of Assignee's operations during
construction. Assignee shall not unreasonably interfere with or delay
construction work on the Extension Premises.
(initials)
12
LEASE ADDENDUM NUMBER TWO
[BASE YEAR]
ADDITIONAL RENT - OPERATING EXPENSE PASS THROUGHS. The provisions of this
Lease Addendum Number Three shall apply only to the Extension Premises during
the Extended Term, and shall not apply as to Suite 870, which shall continue to
be governed by the provisions of the Lease in effect as of the date of this
Third Amendment.
For the calendar year commencing on JANUARY 1, 2006, and for each calendar year
thereafter, Assignee shall pay to Landlord, as Additional Rent, Assignee's
Proportionate Share of any increase in Operating Expenses (as hereinafter
defined) incurred by Landlord's operation or maintenance of the Building above
the Operating Expenses Landlord incurred during the Base Year (as hereinafter
defined).
For purposes of calculating Assignee's Proportionate Share of real and
personal property taxes, Landlord shall use the Base Year 2005. Assignee's
Proportionate Share shall be calculated by dividing the approximately 18,451
rentable square feet of the Extension Premises by the approximately 182,214 net
rentable square feet of the Building, which equals 10.13%. If during any
calendar year the occupancy of the rentable area of the Building is less than
95% full, then Operating Expenses (as hereinafter defined) will be adjusted for
such calendar year at a rate of 95% occupancy. Assignee's annual increase in its
prorata share of Controllable Operating Expenses shall not exceed three percent
(3%) of the prior year actual Controllable Operating Expense. Controllable
Operating Expenses shall specifically exclude real estate taxes, assessments,
insurance, utilities, and events of force majeure.
For the calendar year commencing on JANUARY 1, 2006, and for each calendar
year thereafter during the Term, Landlord shall estimate the amount the
Operating Expenses shall increase for such calendar year above the Operating
Expenses incurred during the Base Year. Landlord shall send to Assignee a
written statement of the amount of Assignee's Proportionate Share of any
estimated increase in Operating Expenses and Assignee shall pay to Landlord,
monthly or annually, Assignee's Proportionate Share of such increase in
Operating Expenses. Within ninety (90) days after the end of each calendar year
or as soon as possible thereafter, Landlord shall send a copy of the Annual
Statement to Assignee. Pursuant to the Annual Statement, Assignee shall pay to
Landlord Additional Rent as owed or Landlord shall adjust Assignee's Rent
payments if Landlord owes Assignee a credit. After the Extension Expiration
Date, Landlord shall send Assignee the final Annual Statement for the Term, and
Assignee shall pay to Landlord Additional Rent as owed or if Landlord owes
Assignee a credit, then Landlord shall pay Assignee a refund. If there is a
decrease in Operating Expenses in any subsequent year below Operating Expenses
for the Base Year then no additional rent shall be due on account of Operating
Expenses, but Assignee shall not be entitled to any credit, refund or other
payment that would reduce the amount of other additional rent or Base Rent owed.
If this Lease expires or terminates on a day other than December 31, then
Additional Rent shall be prorated on a 365-day calendar year (or 366 if a leap
year). All payments or adjustments for Additional Rent shall be made within
thirty (30) days after the applicable Statement is sent to Assignee.
The term "Base Year" shall mean the twelve month period beginning on the
January 1, 2005, and ending on December 31, 2005.
The term "Operating Expenses" shall mean all direct costs incurred by
Landlord in the provision of services to tenants and in the operation, repair
and maintenance of the Building and Common Areas as determined by generally
accepted accounting principles, including, but not limited to ad valorem real
and personal property taxes, hazard and liability insurance premiums, utilities,
heat, air conditioning, janitorial service, labor, materials, supplies,
equipment and tools, permits, licenses, inspection fees, management fees, and
common area expenses; provided, however, the term "Operating Expenses" shall not
include depreciation on the Building or equipment therein, interest, executive
salaries, real estate brokers' commissions, or other expenses that do not relate
to the operation of the Building. The annual statement of Operating Expenses
shall be accounted for and reported in accordance with generally accepted
accounting principles (the "Annual Statement"). With reasonable prior written
notice to Landlord, Assignee, at Assignee's cost and expense, shall have the
right to audit the Operating Expenses once per year at Landlord's office in
Tampa, Florida, provided such audit is completed within ninety (90) days after
Assignee's receipt of the Annual Statement.
(initials)
13
LEASE ADDENDUM NUMBER THREE
OPTION TO RENEW LEASE TERM
1. Option to Extend. Assignee shall have the right and option to renew the
Lease as to the Extension Premises (the "Renewal Option") for two additional
periods of five (5) years each (the "Renewal Lease Terms") (a separate notice is
required for each Renewal Lease Term); provided, however, such Renewal Option is
contingent upon the following (i) Assignee is not in default at the time
Assignee gives Landlord notice of Assignee's intention to exercise the Renewal
Option; (ii) upon the Extension Expiration Date or the expiration of any Renewal
Lease Term, Assignee has no outstanding default; (iii) no event has occurred
that upon notice or the passage of time would constitute a default; and (iv)
Assignee or its assignee is occupying the Extension Premises. Following the
expiration of the Second Renewal Term, Assignee shall have no further right to
renew the Lease pursuant to this Addendum Number Three.
2. Exercise of Option. Assignee shall exercise each Renewal Option by
giving Landlord notice at least 270 days prior to the Expiration Date or the
last day of any Renewal Lease Term. If Assignee fails to give such notice to
Landlord prior to said SECTION 270 day period, then Assignee shall forfeit the
Renewal Option. If Assignee exercises the Renewal Option, then during any such
Renewal Lease Term, Landlord and Assignee's respective rights, duties and
obligations shall be governed by the terms and conditions of the Lease. Time is
of the essence in exercising the Renewal Option.
3. Term. If Assignee. exercises the Renewal Option, then during any such
Renewal Lease Term, all references to the term "Term", as used in the Lease,
shall mean the "Renewal Lease Term".
4. Termination of Renewal Option on Transfer by Assignee. If Landlord
consents to a sublease by Assignee, then the Renewal Option shall automatically
terminate unless otherwise agreed in writing by Landlord.
5. Base Rent for Renewal Lease Term. The Base Rent for the Renewal Lease
Term shall be the Fair Market Rental Rate, determined as follows:
Definition. The term "Fair Market Rental Rate" shall mean the market rental
rate for the time period such determination is being made for office space in
office buildings in the Tampa area ("AREA") of comparable condition for space of
equivalent quality, size, utility, and location. Such determination shall take
into account all relevant factors, including, without limitation, the following
matters: the credit standing of Assignee; the length of the term; expense stops;
the fact that Landlord will experience no vacancy period and that Assignee will
not suffer the costs and business interruption associated with moving its
offices and negotiating a new lease; construction allowances and other tenant
concessions that would be available to tenants comparable to Assignee in the
AREA (such as moving expense allowance, free rent periods, and lease assumptions
and take-over provisions, if any, but specifically excluding the value of
improvements installed in the Extension Premises at Assignee's cost), and
whether adjustments are then being made in determining the rental rates for
renewals in the AREA because of concessions being offered by Landlord to
Assignee (or the lack thereof for the Renewal Lease Term in question). For
purposes of such calculation, it will be assumed that Landlord is paying a
representative of Assignee a brokerage commission in connection with the Renewal
Lease Term in question, based on the then current market rates.
Determination. Landlord shall deliver to Assignee notice of the Fair Market
Rental Rate (the "FMR Notice") for the Premises for the Renewal Lease Term in
question within thirty (30) days after Assignee exercises the option giving rise
for the need to determine the Fair Market Rental Rate. If Assignee disagrees
with Landlord's assessment of the Fair Market Rental Rate specified in a FMR
Notice, then it shall so notify Landlord in writing within ten (10) business
days after delivery of such FMR Notice; otherwise, the rate set forth in such
notice shall be the Fair Market Rental Rate. If Assignee timely delivers to
Landlord notice that Assignee disagrees with Landlord's assessment of the Fair
Market Rental Rate, then Landlord and Assignee shall meet to attempt to
determine the Fair Market Rental Rate. If Assignee and Landlord are unable to
agree on such Fair Market Rental Rate within ten (10) business days after
Assignee notifies Landlord of Assignee's disagreement with Landlord's assessment
thereof, then Landlord and Assignee shall each appoint an independent real
estate broker with at least five (5) years' commercial real estate experience in
the AREA market. The two
(initials)
14
brokers shall then, within ten (10) days after their designation, select an
independent third broker with like qualifications. If the two brokers are unable
to agree on the third broker within such ten (10) day period, either Landlord or
Assignee, by giving five (5) days prior notice thereof to the other, may apply
to the then presiding Clerk of Superior Court of Hillsborough County for
selection of a third broker who meets the qualifications stated above. Within
twenty (20) business days after the selection of the third broker, a majority of
the brokers shall determine the Fair Market Rental Rate. If a majority of the
brokers is unable to agree upon the Fair Market Rental Rate by such time, then
the two (2) closest evaluation shall be averaged and the average will be the
Fair Market Rental Rate. Assignee and Landlord shall each bear the entire cost
of the broker selected by it and shall share equally the cost of the third
broker.
Administration. If Assignee has exercised the Renewal Option and the Fair
Market Rental Rate for the Renewal Lease Term has not been determined in
accordance with this Lease Addendum Number Three by the time that Rent for the
Renewal Lease Term is to commence in accordance with the terms hereof, then
Assignee shall pay Rent for the Renewal Lease Term based on the Fair Market
Rental Rate proposed by Landlord pursuant to this Lease Addendum Number Three
until such time as the Fair Market Rental Rate has been so determined, at which
time appropriate cash adjustments shall be made between Landlord and Assignee
such that Assignee is charged Rent based on the Fair Market Rental Rate (as
finally determined pursuant to this Lease Addendum Number Three) for the Renewal
Lease Term during the interval in question.
(initials)
15
GUARANTY
This Guaranty is made as of the 18th day of November, 2004, by
CompBenefits Corporation, a Delaware corporation (the "Guarantor"), whose
address is 000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, in favor
of HIGHWOODS NON-ORLANDO, LLC ("Landlord"), whose address is 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Guaranty").
1. Lease. The "Lease" shall mean that certain Office Lease dated June 8,
1994, by and between Landlord and CompBenefits Corporation, subsequently
assigned to Dental and Vision Company ("Tenant") for the property located at
0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000 and all extensions, renewals,
amendments, supplements or modifications thereto.
2. Purpose and Consideration. The execution and delivery of this Guaranty
by Guarantor is a condition to Landlord's entering into the Lease with Tenant
and is made to induce Landlord to enter into the Lease. Tenant is a wholly-owned
subsidiary of Guarantor, and Guarantor will realize a direct or indirect
financial benefit by virtue of Tenant entering into the Lease.
3. Guaranty. Guarantor hereby absolutely, unconditionally and irrevocably,
guarantees the compliance with and performance by Tenant of each of the
provisions, covenants, agreements and conditions applicable to Tenant contained
in the Lease and guarantees the full and prompt payment by Tenant of the Base
Rent, Additional Rent and other amount payable by Tenant under the Lease, as and
when the same become due, whether by acceleration or otherwise. This is a
Guaranty of payment and not of collection.
4. Guaranty as Independent. The obligations of Guarantor hereunder are
independent of the obligations of Tenant, and Guarantor expressly agrees that a
separate action or actions may be brought and prosecuted against Guarantor
whether or not any action is brought against Tenant and whether or not Tenant is
joined in any action against Guarantor and that Landlord may pursue any rights
or remedies it has under the Lease and under this Guaranty in any order or
simultaneously or in any other manner.
5. Authorizations to Landlord. Guarantor authorizes Landlord, without
notice or demand and without affecting Guarantor's liability hereunder, from
time to time to (i) change, amend, modify or alter any of the terms, covenants,
agreements, or conditions contained in the Lease; (ii) extend or renew the
Lease; (iii) change, renew, compromise, extend, accelerate or otherwise change
the time for payment of any amounts payable under the Lease; (iv) consent to any
assignment, sublease, pledge or transfer of the Lease by Tenant or of Tenant's
interest in the Premises; (v) release Tenant and substitute any one or more
parties as Tenants or sublessees under the Lease; (vi) waive or fail to take
action with respect to any default by Tenant under the Lease; and (vii) waive or
fail to take action with respect to any remedy under the Lease.
6. Application of Payments Received by Landlord. Any sums of money that
Landlord receives from or on behalf of Tenant may be applied by Landlord to
reduce any indebtedness of Tenant to Landlord as Landlord, in its sole
discretion, deems appropriate.
7. Waiver by Guarantor. Guarantor hereby waives (i) any right to require
Landlord to proceed against, give notice to or make demand upon Tenant; (ii) any
right to require Landlord to pursue any remedy of Landlord; (iii) any right to
participate in or to direct the application of any security held by Landlord;
and (iv) any defense arising out of any disability or other defense of Tenant,
including cessation, impairment, modification, or limitation, from any cause, of
liability of Tenant or of any remedy for the enforcement of such liability.
8. Subordination by Guarantors. Guarantor hereby agrees that any
indebtedness of Tenant to Guarantor, whether now existing or hereafter created,
shall be subordinated to any indebtedness of Tenant to Landlord.
9. Notices and Demands. All notices and demands under this Guaranty shall
be in writing and shall be deemed properly given and received when actually
given and received three (3) business days after mailing, (i) if sent by
registered or certified United States mail, postage prepaid, return receipt
requested, addressed to the party to receive the notice or demand at the address
set forth for such party in the first paragraph of this Guaranty or at such
other address as either party may notify the other in writing or (ii) delivered
to a nationally recognized overnight courier service for next business day
delivery, to its addressee at such party's address as set forth above. A copy of
any notices given by Guarantor to Landlord shall be sent, to Highwoods
Properties, Inc., 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx
00000.
10. Payment of Costs of Enforcement. In the event any action or proceeding
is brought to enforce this Guaranty and if Landlord is held entitled to recovery
against Guarantor, Guarantor agrees to pay all costs and expenses of Landlord in
connection with such action or proceeding, including reasonable attorneys' fees.
(initials)
16
11. Binding Effect. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Landlord and its
successors and assigns.
12. Severability. If any provision of this Guaranty shall be held invalid
or unenforceable, the remainder of this Guaranty shall not be affected thereby
and there shall be deemed substituted for the affected provision, a valid and
enforceable provision as similar as possible to the affected provision.
13. Governing Law. This Guaranty shall be interpreted under and enforced
according to the laws of the State in which the Premises are located.
14. Captions for Convenience. The headings and captions hereof are for
convenience only and shall be not considered in interpreting the provisions
hereof.
15. Unless otherwise defined herein, all capitalized terms shall have the
same meaning as set forth in the Lease.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed under
seal the day and year first above written.
COMPBENEFITS CORPORATION, Guarantor's address:
a Delaware corporation 000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Name: XXXXX X. XXXXXXXX
Title: EX VP
Dated: 11/18, 0000
XXXXX XX XXXXXXX
) ss:
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me this 18th day of
November, 2004, by Xxxxx X. Xxxxxxxx, as Ex. Vice President of CompBenefits
Corporation, a Delaware corporation, on behalf of the corporation. Such officer
is personally known to me or who has produced a valid driver's license as
identification.
OFFICIAL NOTARIAL SEAL: /s/ Xxxxxx X. Xxxxxxxx
(SEAL) ----------------------------------------
Xxxxxx X. Xxxxxxxx
(type, print, or stamp name)
Notary Public
My commission expires: January 27, 2006
Commission No. N/A
(initials)
17
FOURTH AMENDMENT TO LEASE AGREEMENT
THIS FOURTH AMENDMENT TO LEASE AGREEMENT (the "Fourth Amendment") is made and
entered into as of the 31st day of January, 2005 by and between Highwoods
Non-Oriando, LLC, a Delaware limited liability company, as trustee under an
unrecorded land trust agreement dated October 9, 2000, known as Tampa Properties
Trust, having an office at 0000 X. Xx. Xxxxxx Xxxxxx Xxxx, Xx. Boulevard, Suite
300, Tampa, Florida 33607, ("Landlord") and CompBenefits Dental and Vision
Company, as successor-in-interest to CompBenefits Corporation ("Tenant").
WITNESSETH
A. Landlord and Tenant entered into a Lease Agreement (the "Original Lease")
dated June 8, 1994, subsequently modified and amended by a certain First
Amendment to Lease Agreement dated December 3, 1998, and by a certain
Second Amendment to Lease Agreement dated August 31, 2001, and a certain
Assignment and Assumption of Lease and Third Amendment to Lease Agreement,
(such documents are collectively hereinafter referred to as the "Lease")
and relating to certain premises (the "Premises") in the building known as
Tower Place, having a street address of 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxx,
Xxxxxxx 00000 (the "Building").
B. Landlord and Tenant desire to amend the Lease to, among other things,
correct the base rent for Suite 870, and related matters.
NOW, THEREFORE, in consideration of the following provisions and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth hereinabove are true and correct, and such
recitals and the Lease are incorporated herein by this reference.
2. Rent. Article 5, entitled "Rent" of the Assignment and Assumption of Lease
and Third Amendment to Lease Agreement is hereby revised with the
following:
Base Rent for Suite 870 shall remain unchanged, and as of January 1, 2005,
shall be as follows:
Area Rate per Monthly Period
Period Leased Sq. Ft. Base Rent Base Rent
------ ------ -------- ---------- -----------
1/1/05-2/28/05 4,862 $23.34 $ 9,456.59 $ 18,913.18
3/1/05-2/28/06 4,862 $24.04 $ 9,740.21 $116,882.48
3/1/06-2/28/07 4,862 $24.76 $10,031.93 $120,383.12
-----------
Total: $256,178.78
===========
The above amounts do not include applicable Florida State sales and use
taxes, which taxes shall be paid by Tenant with each payment of Base
Monthly Rent.
3. Other Lease Provisions: Tenant Affirmation of Lease. Except as amended by
this Amendment, the Lease and all of its terms and provisions shall remain
in full force and effect. In the event of any conflict between the
provisions of this Amendment and provision of the Lease, the provisions of
the Fourth Amendment shall control. All capitalized terms herein shall have
the same meanings as they have in the Lease, unless otherwise defined
herein. Tenant hereby affirms and ratifies the Lease, and agrees to be
bound by the terms of the Lease, as amended hereby.
4. No Default by Landlord. Tenant hereby acknowledges that to the best of
Tenant's current actual knowledge, without investigation or inquiry, as of
the date of execution of this Fourth
(initials)
1
Amendment, there exists no defenses or offsets to enforcement of the Lease
by Landlord and Landlord is not in default in the performance of the Lease.
Landlord acknowledges that to the best of Landlord's current actual
knowledge, without investigation or inquiry, as of the date of execution of
this Fourth Amendment Tenant is not in default under the Lease.
5. Florida Law. This Fourth Amendment and the Lease shall be construed and
interpreted under the laws of the State of Florida.
6. Effective Date. The submission of this Amendment to Tenant for review does
not constitute a reservation of or option for the Premises, and this
Amendment shall become effective as a contract only upon the execution and
delivery by both Landlord and Tenant. The date of execution shall be
entered on the top of the first page of this Amendment by Landlord, and
shall be the date on which the last party signed the Lease, or as otherwise
may be specifically agreed by both parties. Such date, once inserted, shall
be established as the final day of ratification by all parties to this
Amendment, and shall be the date for use throughout this Amendment as the
"Effective Date".
7. Interlineation. Whenever in this Lease any printed portion has been
stricken, whether or not any related provision has been added, Landlord and
Tenant specifically agree that this Lease shall be construed as if the
provisions or material so stricken were never included herein, and that no
inference shall be drawn from the provisions or material so stricken that
would be inconsistent in any way with the construction or interpretation of
this Lease which would be appropriate if such provisions or material had
never been contained herein. Landlord and Tenant further agree that no
inference shall be drawn from any provisions or material added that would
be inconsistent in any way with the construction or interpretation of this
Lease that would be appropriate if such provisions or material had been
included in the original version of the Lease.
8. Joinder of Guarantor. By signature below, Guarantor does hereby agree to
this modification of the Lease.
[SIGNATURE PAGE TO FOLLOW]
(initials)
2
IN WITNESS WHEREOF, this Fourth Amendment has been duly executed by the parties
hereto effective as of the Effective Date.
WITNESSES: "LANDLORD":
Highwoods Non-Orlando, LLC, a Delaware
limited liability company, as trustee
under an unrecorded land trust agreement
dated October 9, 2000, known as Tampa
Properties Trust
/s/ Xxxxx Xxxxx By: Highwoods Realty Limited
------------------------------------- Partnership, A North Carolina
Xxxxx Xxxxx limited partnership, as Agent
Print Name
By: Highwoods Properties, Inc., a
Maryland corporation, its sole
general partner
/s/ Xxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
Xxx Xxxxxxx Xxxxxxx X. Xxxxxx
Print Name Title: Vice President - Tampa
Date: 1/31/05
"TENANT":
COMPBENEFITS DENTAL AND VISION
COMPANY
WITNESSES:
/s/ XXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx ----------------------------------------
------------------------------------ Signature Line
Xxxxxx X. Xxxxxxxx By: XXXXX X. XXXXXXXX
Print Name Print Name
Title: Ex VP
Date: 1/13/05
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx
Print Name
(initials)
3
"GUARANTOR":
COMPBENEFITS CORPORATION
WITNESSES:
/s/ XXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx ----------------------------------------
------------------------------------- Signature Line
Xxxxxx X. Xxxxxxxx By: XXXXX X. XXXXXXXX
Print Name Print Name
Title: Ex VP
Date: 1/13/05
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx
Print Name
(initials)
4
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (the "Fifth Amendment") is made and
entered into as of the 22nd day of May, 2006 by and between Highwoods
Properties, Inc., a Maryland corporation, as trustee under an unrecorded trust
agreement dated October 9, 2000, known as Tampa Properties Trust, having an
office at 0000 X. Xx. Xxxxxx Xxxxxx Xxxx, Xx. Boulevard, Suite 300, Tampa,
Florida 33607, ("Landlord") and CompBenefits Dental and Vision Company, a
Florida corporation ("Tenant").
WITNESSETH
A. Landlord's and Tenant's respective predecessors in interest entered into a
Lease Agreement dated June 8, 1994 (the "Original Lease"); as amended by
that certain First Amendment to Lease Agreement dated December 3, 1998
("First Amendment"); as further amended by that certain Second Amendment to
Lease Agreement dated August 31, 2001 ("Second Amendment"), as assigned and
further amended by that certain Assignment and Assumption of Lease and
Third Amendment to Lease Agreement dated November 30, 2004 ("Third
Amendment"); and as further amended by that certain Fourth Amendment to
Lease Agreement dated January 31, 2005 ("Fourth Amendment"); the Original
Lease, First Amendment, Second Amendment, Third Amendment and Fourth
Amendment hereinafter collectively referred to as the "Lease"; for those
certain premises (the "Premises") in the building known as Tower Place,
having a street address of 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx
00000 (the "Building").
B. Landlord and Tenant desire to amend the Lease to, among other things,
extend the Term of the Lease with respect to a certain portion of the
Premises until August 31, 2010.
NOW, THEREFORE, in consideration of the following provisions and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth hereinabove are true and correct, and such
recitals and the Lease are incorporated herein by this reference.
2. Leased Premises. The term "Leased Premises" or "Premises" is hereby stated
to be that portion of the Building known as Suites 610, 620 and 1000,
collectively consisting of 18,451 rentable square feet; and that portion of
the Building known as Suite 870, consisting of 4,862 rentable square feet,
which Tenant currently subleases to Xxxx Xxxxxxx Life Insurance Company;
for a total of 23,313 rentable square feet.
3. Term. The Lease Term for Suites 610, 620 and 1000, which is due to expire
at midnight of December 31, 2009, is hereby changed and extended to, and
shall now expire at, midnight of August 31, 2010. The period beginning on
January 1, 2010, and ending on August 31, 2010, shall hereinafter be
referred to as the "Third Renewal Term". The Lease Term for Suite 870 is
due to expire at midnight of February 28, 2007, and is unaffected by this
Fifth Amendment.
4. Rent. Base Rent for Suites 610, 620 and 1000 during the Third Renewal Term
shall be as follows:
Area Rate per Monthly Period
Period Leased Sq. Ft. Base Rent Base Rent
------ ------ -------- ---------- -----------
1/1/10 - 8/31/10 18,451 $23.64 $36,348.47 $290,787.76
The above amounts do not include applicable Florida State sales and use
taxes, which taxes shall be paid by Tenant with each payment of monthly
Base Rent.
(initials)
1
5. Landlord's Work. In connection with the extension of the Term for the Third
Renewal Term, Landlord, at its sole cost and expense, will install a
corridor on the 10th floor of the Building, as shown on the plan attached
as Exhibit "A" to this Fifth Amendment.
6. Other Lease Provisions; Tenant Affirmation of Lease. Except as amended by
this Fifth Amendment, the Lease and all of its terms and provisions shall
remain in full force and effect. In the event of any conflict between the
provisions of this Fifth Amendment and provision of the Lease, the
provisions of the Fifth Amendment shall control. All capitalized terms
herein shall have the same meanings as they have in the Lease, unless
otherwise defined herein. Tenant hereby affirms and ratifies the Lease, and
agrees to be bound by the terms of the Lease, as amended hereby.
4. No Default. Tenant hereby acknowledges that to the best of Tenant's current
actual knowledge, without investigation or inquiry, as of the date of
execution of this Fifth Amendment, there exists no defenses or offsets to
enforcement of the Lease by Landlord and that Landlord is not in default in
the performance of the Lease. Landlord acknowledges that to the best of
Landlord's current actual knowledge, without investigation or inquiry, as
of the date of execution of this Fifth Amendment, Tenant is not in default
under the Lease.
5. Florida Law. This Fifth Amendment and the Lease shall be construed and
interpreted under the laws of the State of Florida.
6. Effective Date. The submission of this Fifth Amendment to Tenant for review
does not constitute a reservation of or option for the Premises, and this
Fifth Amendment shall become effective as a contract only upon the
execution and delivery by both Landlord and Tenant. The date of execution
shall be entered on the top of the first page of this Fifth Amendment by
Landlord, and shall be the date on which the last party signed the Lease,
or as otherwise may be specifically agreed by both parties. Such date, once
inserted, shall be established as the final day of ratification by all
parties to this Fifth Amendment, and shall be the date for use throughout
this Fifth Amendment as the "Effective Date".
7. Interlineation. Whenever in this Fifth Amendment any printed portion has
been stricken, whether or not any related provision has been added,
Landlord and Tenant specifically agree that this Fifth Amendment shall be
construed as if the provisions or material so stricken were never included
herein, and that no inference shall be drawn from the provisions or
material so stricken that would be inconsistent in any way with the
construction or interpretation of this Fifth Amendment which would be
appropriate if such provisions or material had never been contained herein.
Landlord and Tenant further agree that no inference shall be drawn from any
provisions or material added that would be inconsistent in any way with the
construction or interpretation of this Fifth Amendment that would be
appropriate if such provisions or material had been included in the
original version of the Lease.
8. Joinder of Guarantor. By signature below, Guarantor does hereby agree to
this modification of the Lease.
[SIGNATURE PAGE TO FOLLOW]
(initials)
2
IN WITNESS WHEREOF, this Fifth Amendment has been duly executed by the parties
hereto effective as of the Effective Date.
WITNESSES: "LANDLORD":
HIGHWOODS PROPERTIES, INC., a Maryland
corporation, as trustee under an
unrecorded trust agreement dated October
9, 2000, known as Tampa Properties Trust
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
Print Name
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Title: Vice President-Tampa
Date: 5/22/06
/s/ illegible
-------------------------------------
-------------------------------------
Print Name
"TENANT":
COMPBENEFITS DENTAL AND VISION
COMPANY
WITNESSES:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------------- ----------------------------------------
Xxxxxx X. Xxxxxxxx Signature Line
Print Name By: Xxxxx X. Xxxxxxxx
Print Name
Title: Executive Vice President
/s/ Xxxxx X. Xxxxxxx Date: 4/21/2006
-------------------------------------
Xxxxx X. Xxxxxxx
Print Name
(initials)
3
"GUARANTOR":
WITNESSES: COMPBENEFITS CORPORATION
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
/s/ Xxxxxx X. Xxxxxxxx Signature Line
------------------------------------- By: Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx Print Name
Print Name Title: Executive Vice President
Date: 4/21/2006
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Print Name
(initials)
4
(FLOOR PLAN)
A1
1 of 1
01/30/06
CompBenefits at Tower Place - Suite 1000
0000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxx 00000
Xxxxxxx Architects
INTERIORS
0000 Xxxx 0xx Xxxxxx Xxxxx, Xxxxxxx 00000
Phone: 000 000 0000 Fax: 000 000 0000
