EXHIBIT 10.1
LEASE AGREEMENT
1. PARTIES. This Lease is made and entered into effective as of the 1st
day of November, 2001, by and between WILLIAMSBURG RETIREMENT INVESTORS, LTD.,
A FLORIDA LIMITED PARTNERSHIP (herein called "Landlord") and SFBC
INTERNATIONAL, INC., A DELAWARE CORPORATION (herein called "Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases from
Landlord, upon all of the conditions set forth herein, a portion of that
certain real property situated in Miami-Dade, County, Florida, commonly known
as the Williamsburg ACLF, having an address of 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxx 00000 ("Williamsburg"). The portion leased hereby to Tenant is
described as the South Tower of Williamsburg. Said real property is herein
called the "Property."
3. TERM AND POSSESSION.
3.1 TERM. The term hereof shall be for Three (3) years commencing
on November 1, 2001 ("Commencement Date") and ending on October 31, 2004,
unless sooner terminated pursuant to any provision hereof.
3.2 EARLY TERMINATION. In the event Tenant purchases the Property
from Landlord, then this Lease Agreement shall be automatically terminated and
cancelled and shall be of no further force or effect as of the effective date
of the title transfer, and rent shall be prorated through such date.
4. RENT.
4.1 RENT PAYMENT, PRORATION AND SALES TAXES. All rental payments
due hereunder shall be paid without notice or demand, and without abatement,
deduction or setoff for any reason unless specifically provided herein. Rent
for any period during the term hereof which is for less than one month shall be
a pro rata portion of the monthly rent installment based on the number of days
in such period and the number of days in the month in question. Rent shall be
payable in lawful money of the United States to Landlord at the address stated
herein or to such other persons or at such other places as Landlord may
designate in writing. In addition, Tenant shall pay to Landlord all sales and
use taxes imposed by the State of Florida or any other governmental authority
from time to time, upon said rent and any other charges hereunder upon which
sales and use taxes are imposed.
4.2 NO WAIVER. The acceptance by Landlord of monies from Tenant
as rent or other sums due shall not be an admission of the accuracy or the
sufficiency of the amount of such rent or other sums due nor shall it be deemed
a waiver by Landlord of any right or claim to additional or further rent or
other sums due.
4.3 RENT. Tenant shall pay to Landlord as rent for the Property
for the first eighteen months of the lease term, monthly payments of fixed rent
in the amount of Forty Thousand Dollars ($40,000.00) in advance, on or before
the first (1st) day of each month. For the second eighteen months of the lease
term, Tenant shall pay to Landlord as rent for the Property,
payments of fixed rent in the amount of Forty-five Thousand Dollars
($45,000.00) in advance, on or before the first (1st) day of each month.
5. [INTENTIONALLY OMITTED].
6. USE.
6.1 USE. The Property shall be used and occupied only for
Tenant's operation of its pharmaceutical testing business and for no other
purpose. Without limiting the foregoing, Tenant shall not use nor permit the
use of the Property in any manner that will tend to create waste or a nuisance
or, if there shall be more than one tenant in the building containing the
Property, shall tend to disturb or interfere with the rights of such other
tenants.
6.2 COMPLIANCE WITH LAWS AND RESTRICTIONS. Tenant shall, at
Tenant's expense, execute and comply with all statutes, ordinances, rules,
orders, regulations, codes and requirements of the federal, state, county and
city government, and of any and all of their departments and bureaus,
applicable to the Property, as well as all covenants and restrictions of
record, and other requirements in effect during the term or any part thereof,
which regulate the use by Tenant of the Property.
6.3 CONDITION OF PROPERTY. By taking possession of the Property,
Tenant shall be deemed to have accepted the Property, subject to all applicable
zoning, municipal, county and state laws, ordinances, codes and regulations
governing and regulating the use of the Property, and any covenants or
restrictions of record, as suitable for Tenant's intended purposes, and in
compliance with all terms and provisions hereof Tenant acknowledges that
neither Landlord nor Landlord's agent has made any representation or warranty
as to the present or future suitability of the Property for the conduct of
Tenant's business.
6.4 MULTIPLE TENANTS, COMMON AREA RULES AND REGULATIONS. Tenant
acknowledges that the Property is part of a group of buildings within the
Williamsburg complex, and that Tenant and others claiming by or under Landlord
shall have the right, in common with Landlord and all others to whom Landlord
may from time to time grant rights, to use the common areas of such buildings
(including but not limited to parking areas, driveways, passages, hallways,
walkways and sidewalks) for their intended purposes, subject to such uniform
and reasonable rules and regulations as Landlord may from time to time impose,
including without limitation the designation of specific areas in which cars
owned by Tenant, its concessionaires, officers, employees and agents must be
parked. Tenant shall upon request furnish to Landlord the license numbers of
cars operated by Tenant and its concessionaires, officers, employees and
agents. Tenant agrees that it will abide by, keep and observe all reasonable
rules and regulations which Landlord may make from time to time for the
management, safety, care, and cleanliness of the building(s) and grounds, the
parking of vehicles and the preservation of good order therein as well as for
the convenience of other occupants and Tenants of the building(s), and to use
its best efforts to cause its concessionaires, officers, employees, agents and
invitees to comply with same. Tenant acknowledges that the buildings are
designated as "NO SMOKING" areas. The violation of any of such rules and
regulations or failure of Tenant to use its best efforts to cause compliance
therewith by its concessionaires, officers, employees, agents and invitees
shall be deemed a material breach hereof by Tenant. Landlord shall not be
liable for the failure of any
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Tenant, its concessionaires, officers, employees, agents or invitees to conform
to the rules and regulations, provided that the rules and regulations are not
applied or enforced in a discriminatory manner by Landlord. Landlord shall not
be liable for damage to or loss of any vehicle stored or parked on the
premises, nor for any part or accessory of such vehicle, nor for any property
of any kind stored or left in said space or vehicle.
6.5 KITCHEN FACILITIES. Tenant shall have nonexclusive access to
and use of the kitchen facilities for food preparation purposes, subject in all
respects and at all times to Landlord's prior and preferred right of use of the
kitchen facilities, and to all rules and regulations as promulgated by
Landlord's Administrator, including but not limited to, hours of scheduled use,
storage of food and supplies, and cleaning standards. Tenant hereby
acknowledges that Landlord's operation of its business at Williamsburg,
including the operations of the kitchen facilities, is licensed by the State of
Florida and subject to periodic inspections, so that Tenant's strict compliance
with the rules, regulations and standards pertaining to the use of the kitchen
facilities a material inducement to Landlord entering into this Lease.
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7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 CASUALTY AND CONDEMNATION. The specific provisions hereof
relating to repairs after casualty or condemnation shall take precedence over
the terms of this Section 7, but only to the extent in conflict herewith.
7.2 MAINTENANCE. Tenant shall, at Tenant's sole cost and expense,
maintain the Property and all components thereof throughout the lease term, in
good, safe and clean order, condition and repair, including without limitation
all plumbing, heating, air conditioning, ventilation, elevator and electrical
facilities and all components thereof, serving the Property. If Tenant fails to
perform Tenant's obligations under this Section 7 or under any other section
hereof, Landlord may at Landlord's option enter upon the Property after ten
(10) days' prior written notice to Tenant (except in the case of emergency, in
which case no notice shall be required), perform such obligations on Tenant's
behalf, and put the Property in good, safe and clean order, condition and
repair, and the cost thereof together with interest thereon at the Default
Rate, shall be due and payable as additional rent to Landlord together with
Tenant's next rental installment. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford Tenant the
right to make repairs at Landlord's expense or to terminate this Lease because
of Landlord's failure to keep the Property in good order, condition and repair.
7.3 BUILDING SERVICES. Tenant shall permit Landlord, or its
agents or designees, to erect, use, maintain and repair pipes, cables,
conduits, plumbing, vents and wires into and through the Property, as and to
the extent Landlord may now or hereafter deem to be necessary or appropriate
for the proper operation or maintenance of the building in which the Property
is located, and Landlord shall have an easement through the Property for such
purposes. All such work shall be done so far as is practicable in such a manner
as to avoid interference with Tenant's use of the Property.
7.4 PLATE GLASS. Tenant shall maintain all plate glass, if any,
within or on the perimeter of the Property.
7.5 GROUNDS; PARKING AREAS. Landlord shall maintain all
landscaping, driveways, parking areas and sidewalks serving the Property, which
shall be available to Tenant, its employees, licensees and business invitees,
as well as to other tenants of the building or group of buildings in which the
Property is located, and their respective employees, licensees and invitees.
The use of such facilities shall at all times be subject to such reasonable
rules and regulations as Landlord may promulgate, as described herein, and to
all applicable governmental rules and regulations.
7.6 TERMINATION OF LEASE. On the last day of the term hereof, or
on any sooner termination, Tenant shall surrender the Property to Landlord in
the same condition as received, ordinary wear and tear excepted, clean and free
of debris. Tenant's moveable machinery, furniture, fixtures and equipment,
other than that which is affixed to the Property so that it cannot be removed
without damage to the Property and which Landlord does not require Tenant to
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remove, may be removed by Tenant upon expiration of the lease. Tenant shall
repair any damage to the Property occasioned by the installation or removal of
its trade fixtures, furnishings and equipment. Upon termination of this Lease
for any cause whatsoever, if Tenant fails to remove its effects, they shall be
deemed abandoned, and Landlord may, at its option, remove the same in any
manner that Landlord shall choose, store them without liability to Tenant for
loss thereof, and Tenant agrees to pay Landlord on demand any and all expenses
incurred in such removal, including court costs, attorney's fees and storage
charges for any length of time the same shall be in Landlord's possession, or
Landlord may, at its option, without notice, sell said effects or any part of
the same at a private sale and without legal process for such price as Landlord
may obtain, and apply the proceeds of such sale upon the amounts due under this
Lease from Tenant to Landlord and upon the expenses incident to the removal and
sale of said effects. Tenant shall deliver all keys and combinations to locks
within the Property to Landlord upon termination of this Lease for any reason.
Tenant's obligations to perform under this provision shall survive the end of
the lease term.
7.7 ALTERATIONS AND ADDITIONS.
(a) Landlord's consent to allowing Tenant to perform
alterations and additions to the Property shall be deemed conditioned upon
Tenant acquiring all necessary permits to do the work from appropriate
governmental agencies, and the compliance by Tenant with all conditions of said
permits in a prompt and expeditious manner, and, if applicable, Tenant's
conducting its work so as not to interfere with any other tenants of the
building in which the Property is located. Tenant agrees to indemnify and hold
harmless Landlord for and from, all claims, fines, or penalties arising from
Tenant's failure to acquire all necessary permits to do the work from
appropriate governmental agencies, and the compliance by Tenant with all
conditions of said permits.
(b) Tenant shall pay, when due, and hereby agrees to
indemnify and hold harmless Landlord for and from, all claims for labor or
materials furnished or alleged to have been furnished to or for Tenant, at or
for use in the Property, which claims are or may be secured by any construction
lien against the Property or any interest therein. Tenant shall give Landlord
not less than ten (10) days' notice prior to the commencement of any work on
the Property which might give rise to any such lien or claim of lien, and
Landlord shall have the right to post notices of nonresponsibility in or on the
Property as provided by law. If Tenant shall, in good faith, contest the
validity of any such lien, claim or demand, then Tenant shall, at its sole
expense, defend itself and Landlord against the same and shall pay and satisfy
any adverse judgment that may be rendered thereon before the enforcement
thereof against Landlord or the Property, upon the condition that if Landlord
shall require, Tenant shall furnish to Landlord a surety bond satisfactory to
Landlord in an amount equal to such contested lien, claim or demand
indemnifying Landlord against liability for the same and holding the Property
free from the effect of such lien, claim or demand. In addition, Landlord may
require Tenant to pay Landlord's attorney's fees and costs in participating in
such action if Landlord shall decide it is in its best interests to do so.
(c) Unless Landlord requires their removal, all
alterations, improvements, additions and Utility Installations made on the
Property shall become the property of Landlord
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and remain upon and be surrendered with the Property at the expiration of the
lease term without compensation to Tenant.
7.8 LANDLORD'S INTEREST NOT SUBJECT TO LIENS. As provided in ss.
713.10, Florida Statutes, the interest of Landlord shall not be subject to
liens for improvements made by Tenant, and Tenant shall notify any contractor
making such improvements of this provision. An appropriate notice of this
provision may be recorded by Landlord in the Public Records of Miami-Dade
County, Florida, in accordance with said statute, without Tenant's joinder or
consent.
8. INSURANCE; INDEMNITY.
8.1 PROPERTY INSURANCE - TENANT. Tenant shall at all times during
the term hereof, at its expense, maintain a policy or policies insuring the
Property against loss or damage by fire, explosion, and other hazards and
contingencies ("all risk," as such term is used in the insurance industry), and
plate glass insurance as required in the reasonable discretion of Landlord, in
an amount of not less than full insurable value.
8.2 LIABILITY INSURANCE - TENANT. Tenant shall, at Tenant's sole
expense, obtain and keep in force during the term hereof a policy of bodily
injury and property damage insurance, insuring Tenant and Landlord against any
liability arising out of the use, occupancy or maintenance of the Property and
the parking areas, walkways, driveways, landscaped areas and other areas
exterior to the Property and appurtenant thereto. Such insurance shall be in an
amount not less than One Million Dollars ($1,000,000) combined single limit,
Two Hundred Fifty Thousand ($250,000) per person, Two Hundred Fifty Thousand
($250,000) per accident for bodily injury and Two Hundred Fifty Thousand
($250,000) property damage. The policy shall insure performance by Tenant of
the indemnity provisions of this Section 8. The limits of said insurance shall
not, however, limit the liability of Tenant hereunder. Upon demand, Tenant
shall provide Landlord, at Landlord's expense, with such increased amounts of
insurance as Landlord may reasonably require to afford Landlord adequate
protection for risks insured under this Section. Tenant, as a material part of
the consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Property arising from any cause and
Tenant hereby waives all claims in respect thereof against Landlord.
8.3 EMPLOYEES' COMPENSATION - TENANT. Tenant shall maintain and
keep in force all employees' compensation insurance required under the laws of
the State of Florida, and such other insurance as may be necessary to protect
Landlord against any other liability to person or property arising hereunder by
operation of law, whether such law is now in force or is adopted subsequent to
the execution hereof.
8.4 TENANT'S DEFAULT. Should Tenant fail to keep in effect and
pay for such insurance as it is in this section required to maintain, Landlord
may do so, in which event, the insurance premiums paid by Landlord, together
with interest thereon at the Default Rate from the date paid by Landlord, shall
become due and payable forthwith and failure of Tenant to pay same on demand
shall constitute a breach hereof.
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8.5 TENANT'S COMPLIANCE. Tenant shall properly and promptly
comply with and execute all rules, orders and regulations of the Southeastern
Underwriter's Association for fire and other casualties, at Tenant's own cost
and expense. Tenant shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in this Section 8. Tenant agrees
to pay any increase in the amount of insurance premiums over and above the rate
now in force that may be caused by Tenant's use or occupancy of the Property.
In the event any increase in premiums is caused by the act or omission of
Tenant in violation of the terms hereof, payment by Tenant of such increase
shall not release Tenant from liability for such violation.
8.6 INSURANCE POLICIES. Insurance required hereunder shall be
with good and solvent insurance companies satisfactory to Landlord; in the
absence of other specific directions, such companies shall hold a "General
Policyholders Rating" of at least B plus, or such other rating as may be
required by a lender having a lien on the Property, as set forth in the most
current issue of "Best's Insurance Guide". Tenant shall deliver to Landlord
copies of policies of insurance required to be provided by Tenant under this
Section 8 or certificates evidencing the existence and amounts of such
insurance and its compliance with the conditions set forth in this Section 8.
No such policy shall be cancelable or subject to reduction of coverage or other
modification except after thirty (30) days' prior written notice to Landlord,
and the interest of Landlord under such policies shall not be affected by any
default by Tenant under the provisions of such policies. Tenant shall, at least
thirty (30) days prior to the expiration of such policies, furnish Landlord
with renewals or "binders" thereof, or Landlord may order such insurance and
charge the cost thereof to Tenant, which amount shall be payable by Tenant upon
demand. If required by any mortgage encumbering the Property, the mortgagee
shall also be a named or additional insured and the terms of all insurance
policies shall comply with all other requirements of such mortgage.
8.7 WAIVER OF SUBROGATION. Tenant and Landlord each hereby
release and relieve the other, and waive their entire right of recovery against
the other, for loss or damage arising out of, or incident to, the perils
actually insured against under this Section 8, which perils occur in, on, or
about the Property, whether due to the negligence of Landlord or Tenant or
their agents, employees, contractors and/or invitees. Tenant and Landlord
shall, upon obtaining the policies of insurance required hereunder, give notice
to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
8.8 INDEMNITY. Tenant shall indemnify and hold harmless Landlord
from and against any and all injury, expense, damages and claims arising from
Tenant's use of the Property, whether due to damage to the Property, claims for
injury to the person or property of any other tenant of the building (if
applicable) or any other person rightfully in or about the Property, from the
conduct of Tenant's business or from any activity, work or things done,
permitted or suffered by Tenant or its agents, servants, employees, licensees,
customers, or invitees in or about the Property or elsewhere or consequent upon
or arising from Tenant's failure to comply with applicable laws, statutes,
ordinances or regulations, and Tenant shall further indemnify and hold harmless
Landlord from and against any and all such claims and from and against all
costs, attorney's fees, expenses and liabilities incurred in the investigation,
handling or defense of any such claim or any action or proceeding brought in
connection therewith by a third person or any governmental authority; and in
case any action or proceeding is brought against Landlord by reason of any such
claim, Tenant upon notice from Landlord, shall defend the same at Tenant's
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expense by counsel satisfactory to landlord. This indemnify shall not require
payment as a condition precedent to recovery.
8.9 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or any loss
of income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other
person in or about the property, whether such damage or injury is caused by or
results from fire, storm, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from latent defects or other
conditions arising upon the Property or upon other portions of the building(s)
of which the Property is a part, or from other sources or places and regardless
of whether the cause of such damage or injury or the means of repairing the
same is inaccessible to Tenant. Landlord shall not be liable for any damages
arising from any act or neglect of any other tenant of the building in which
the Property is located.
9. DAMAGE OR DESTRUCTION.
9.1 DAMAGE OR DESTRUCTION. In the event that the Property should
be totally destroyed by fire, tornado or other casualty or in the event the
Property should be so damaged that rebuilding or repairs cannot be completed
within ninety (90) days after the date of such damage, either Landlord or
Tenant may, at its option, by written notice to the other, given not more than
thirty (30) days after the date of such fire or other casualty, terminate this
Lease; in such event, the rent shall be abated during the unexpired portion
hereof effective with the date of such fire or other casualty. In the event the
Property should be damaged by fire, tornado or other casualty covered by
Landlord's insurance, but only to such extent that rebuilding or repairs can be
completed within ninety (90) days after the date of such damage, or if the
damage should be more serious, but neither Landlord or Tenant elects to
terminate this Lease, then Landlord shall, within forty-five (45) days after
the date of such damage, commence to rebuild or repair the Property to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Landlord shall not be required to
rebuild, repair or replace any part of the furniture, equipment, fixtures and
other improvements which may have been placed by Tenant or others within the
Property, and in any event Landlord's obligation to repair shall be limited to
the extent proceeds of insurance are available for such purpose. Landlord
shall, unless such damage is the result of any negligence or willful misconduct
of Tenant or Tenant's employees or invitees, allow Tenant a fair diminution of
rent during the time that the Property is unfit for occupancy. Notwithstanding
any of the foregoing, in the event any mortgagee, under a deed of trust,
security agreement or mortgage on the Property, should require that the
insurance proceeds be used to retire the mortgage debt, Landlord shall have no
obligation to rebuild and this Lease shall terminate upon notice to Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Property shall be for the sole benefit of Landlord and under its sole
control.
10. PROPERTY TAXES.
10.1 [INTENTIONALLY OMITTED].
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10.2 [INTENTIONALLY OMITTED].
10.3 PERSONAL PROPERTY TAXES. Tenant shall pay prior to
delinquency all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant contained on
the Property or elsewhere or on any leasehold improvements made to the Property
by Tenant, regardless of the validity thereof or whether title to such
improvements shall be in the name of Tenant or Landlord. When possible, Tenant
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord. If any of Tenant's personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord the taxes attributable to
Tenant's personal property within ten (10) days after receipt of a written
statement from Landlord setting forth the taxes applicable to Tenant's
property.
11. UTILITIES.
11.1 Tenant shall punctually pay for all water and sewer charges,
and for all gas, cooling, heat, electricity, telephone, garbage collection and
all other utilities and services consumed in connection with the Property,
together with any taxes thereon. If any such services are not separately
metered as to the Property, Tenant shall pay a reasonable proportion to be
determined by Landlord of all charges jointly metered with other premises. In
addition, Tenant shall pay for the cost of any security service which it may
elect to use.
11.2 If charges to be paid by Tenant hereunder are not paid when
due and Landlord elects to pay same, interest shall accrue thereon from the
date paid by Landlord at the Default Rate, and such charges and interest shall
be added to the subsequent month's rent and shall be collectible from Tenant in
the same manner as rent. Landlord shall not be liable for damage to Tenant's
business and/or inventory or for any other claim by Tenant resulting from an
interruption in utility services.
12. ASSIGNMENT AND SUBLETTING.
12.1 ACKNOWLEDGMENT OF MASTER LEASE. Landlord and Tenant
acknowledge the existence of that certain ninety-nine year ground Lease
Agreement dated January 21, 1947, filed for record on January 25, 1947,
recorded in Official Records Book 2809, Page 464, of the Public Records of Dade
County, Florida (the "Master Lease"), and agree that this Lease is and shall at
all time be subject and subordinate in all respects to the Master Lease. As
between Landlord and Tenant, the terms, conditions and obligations of each to
the other under this Lease shall be the terms, conditions and obligations set
forth in the Master Lease, except for those provisions of the Master Lease,
which are directly contradicted by this Lease, in which event, as between
Landlord and Tenant, the terms of this Lease shall control over the Master
Lease.
12.2 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or
by operation of law assign, mortgage, sublet, or otherwise transfer or encumber
all or any part of Tenant's interest in this Lease or in the Property or
Tenant's possession thereof without Landlord's prior written consent. Any
attempted assignment, transfer, mortgage, encumbrance or subletting without
Landlord's consent shall be void, and shall constitute a breach hereof. No term
or provision contained below in this Section 12 shall be deemed to limit
Landlord's absolute right
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to withhold consent to any proposed transfer or encumbrance of Tenant's
interest in Landlord's absolute discretion and for any reason whatsoever. If
Tenant desires to assign this Lease or to sublet the Property or any portion
thereof, it shall first notify Landlord of its desire to do so and shall submit
in writing to Landlord: (i) the name of the proposed assignee or subtenant;
(ii) the nature of the proposed assignee's or subtenant's business to be
conducted on the Property; (iii) the terms of the proposed assignment or
sublease; and (iv) such financial information as Landlord may reasonably
request concerning the proposed assignee or subtenant.
12.3 NO RELEASE OR WAIVER. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant from Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord
of any provision hereof Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Tenant or any successor of Tenant in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant
without the necessity of exhausting remedies against said assignee. Landlord
may consent to subsequent assignments or subletting hereof or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and such action shall not relieve Tenant of liability hereunder.
12.4 EFFECT OF TRANSFER. The voluntary or other surrender hereof
by Tenant or a mutual cancellation hereof shall not work a merger of the
interests of the parties hereunder, and shall at the option of Landlord
terminate any or all subleases or subtenancies or shall operate as an
assignment to Landlord of such subleases or subtenancies.
12.5 ATTORNEY'S FEES. In the event Tenant shall assign or sublet
the Property or request the consent of Landlord to any assignment or subletting
or if Tenant shall request the consent of Landlord for any act Tenant proposed
to do, then Tenant shall pay Landlord's reasonable attorney's fees and costs
incurred in connection with each such request.
12.6 RIGHT OF RECAPTURE. At any time within thirty (30) days after
Landlord's receipt of the information specified in Section 12.1 above, Landlord
may, by written notice to Tenant, elect (i) to sublease the Property or the
portion thereof proposed to be subleased by Tenant, or to take an assignment of
Tenant's estate hereunder or such part thereof as shall be specified in said
notice, on the same terms and conditions as those contained in said notice; or
(ii) to participate with Tenant in any payments (including but not limited to
rent, security deposit and operating expenses) received by Tenant from any
assignee or subtenant in excess of the payments made by Tenant to Landlord
hereunder, which election shall entitle Landlord to fifty percent (50%) of such
excess, which shall be paid to Landlord within five (5) days after receipt by
Tenant. If Landlord does not exercise either of the options set forth in this
Section 12.5 within said 30-day period, Tenant may within ninety (90) days
after the expiration of said 30-day period enter into a valid assignment or
sublease of the Property or portion thereof upon the terms and conditions set
forth in the notice furnished by Tenant to Landlord pursuant to Section 12.1
above, subject, however, in each instance, to Landlord's consent as set forth
in Section 12.1 above.
13. DEFAULTS; REMEDIES.
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13.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach hereof by Tenant:
(a) The vacating or abandonment of the Property by
Tenant;
(b) The failure by Tenant to make any payment of rent or
any other payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of three (3) days after written
notice thereof from Landlord to Tenant. In the event that Landlord serves
Tenant with a notice to pay rent or vacate pursuant to applicable unlawful
detainer or other statutes, such notice shall also constitute the notice
required by this subsection;
(c) The failure by Tenant to observe or perform any of
the covenants, conditions or provisions hereof to be observed or performed by
Tenant, other than described in Subsection (b) above, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Landlord to Tenant; provided, however, that if the nature of Tenant's default
is such that more than 30 days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure
within said 30-day period and thereafter diligently prosecutes such cure to
completion;
(d) The making by Tenant of any general arrangement or
assignment for the benefit of creditors; (ii) Tenant becomes a "debtor" as
defined under the Federal Bankruptcy Code or any successor statute thereto or
any other statute affording debtor relief, whether state or federal (unless, in
the case of a petition filed against Tenant, the same is dismissed within
thirty (30) days), or admits in writing its present or prospective insolvency
or inability to pay its debts as they mature, or is unable to or does not pay a
material portion (in numbers or dollar amount) of its debts as they mature,
(iii) the appointment of a trustee or receiver to take possession of all or a
substantial portion of Tenant's assets located at the Property or of Tenant's
interest in this Lease; (iv) the attachment, execution or other judicial
seizure of all or a substantial portion of Tenant's assets located at the
Property or of Tenant's interest in this Lease; or (v) the entry of a judgment
against Tenant which affects Tenant's ability to conduct its business in the
ordinary course; provided, however, to the extent that any provision of this
Subsection 13.1(d) is contrary to any applicable law, such provision shall be
of no force or effect to such extent only; and/or
(e) The discovery by Landlord that any financial
statement, warranty, representation or other information given to Landlord by
Tenant, any assignee of Tenant, any subtenant of Tenant, any successor in
interest of Tenant or any guarantor of Tenant's obligation hereunder, in
connection with this Lease, was materially false or misleading when made or
furnished.
13.2 REMEDIES. In the event of any default or breach hereof by
Tenant, Landlord may (but shall not be obligated) at any time thereafter, with
or without notice or demand and without limiting Landlord in the exercise of
any right or remedy which Landlord may have by reason of such default or
breach:
(a) Terminate Tenant's right to possession of the
Property by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Property to Landlord. In
such event, Landlord shall be entitled to recover from
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Tenant all damages incurred by Landlord by reason of Tenant's default,
including accrued rent, the cost of recovering possession of the Property,
expenses of reletting, including necessary renovation and alteration of the
Property, reasonable attorney's fees, and any real estate commission actually
paid;
(b) Reenter and take possession of the Property and
relet or attempt to relet same for Tenant's account, holding Tenant liable in
damages for all expenses incurred by Landlord in any such reletting and for any
difference between the amount of rents received from such reletting and those
due and payable under the terms hereof. In the event Landlord relets the
Property, Landlord shall have the right to lease the Property or portions
thereof for such periods of time and such rentals and for such use and upon
such covenants and conditions as Landlord, in its sole discretion, may elect,
and Landlord may make such repairs and improvements to the Property as Landlord
may deem necessary. Landlord shall be entitled to bring such actions or
proceedings for the recovery of any deficits due to Landlord as it may deem
advisable, without being obligated to wait until the end of the ten-n, and
commencement or maintenance of any one or more actions shall not bar Landlord
from bringing other or subsequent actions for further accruals, nor shall
anything done by Landlord pursuant to this Subsection 13.2(b) limit or prohibit
Landlord's right at any time to pursue other remedies of Landlord hereunder;
(c) Declare all rents and charges due hereunder
immediately due and payable, and thereupon all such rents and fixed charges to
the end of the term shall thereupon be accelerated, and Landlord may, at once,
take action to collect the same by distress or otherwise. In the event of
acceleration of rents and other charges due hereunder which cannot be exactly
determined as of the date of acceleration and/or judgment, the amount of said
rent and charges shall be as determined by Landlord in a reasonable manner
based on information such as previous fluctuations in the CPI and the like;
(d) Perform any of Tenant's obligations on behalf of
Tenant in such manner as Landlord shall deem reasonable, including payment of
any monies necessary to perform such obligation or obtain legal advice, and all
expenses incurred by Landlord in connection with the foregoing, as well as any
other amounts necessary to compensate Landlord for all detriment caused by
Tenant's failure to perform which in the ordinary course would be likely to
result therefrom, shall be immediately due and payable from Tenant to Landlord,
with interest at the Default Rate; such performance by Landlord shall not cure
the default of Tenant hereunder and Landlord may proceed to pursue any or all
remedies available to Landlord on account of Tenant's default; if necessary
Landlord may enter upon the Property after ten (10) days' prior written notice
to Tenant (except in the case of emergency, in which case no notice shall be
required), and perform any of Tenant's obligations of which Tenant is in
default; and/or
(e) Pursue any other remedy now or hereafter available
to Landlord under state or federal laws or judicial decisions. Unpaid
installments of rent and other unpaid monetary obligations of Tenant under the
terms hereof shall bear interest from the date due at the Default Rate.
13.3 NO WAIVER. No reentry or taking possession of the Property by
Landlord shall be construed as an election on its part to terminate this Lease,
accept a surrender of the Property or release Tenant from any obligations
hereunder, unless a written notice of such intention be given
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to Tenant. Notwithstanding any such reletting or reentry or taking possession,
Landlord may at any time thereafter elect to terminate this Lease for a
previous default. Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy herein provided constitute
forfeiture of waiver of any rent due to Landlord hereunder or of any damages
accruing to Landlord by reason of the violation of any of the terms, provisions
and covenants herein contained. Landlord's acceptance of rent or additional
rent following any event of default hereunder shall not be construed as
Landlord's waiver of such event of default. No waiver by Landlord of any
violation or breach of any of the terms, provisions, and covenants herein
contained shall be deemed or construed to constitute a waiver of any other or
subsequent violation or breach of any of the terms, provisions, and covenants
herein contained. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of any other or subsequent violation or
default. The loss or damage that Landlord may suffer by reason of termination
of this Lease or the deficiency from any reletting as provided for above shall
include the expense of repossession and any repairs or remodeling undertaken by
Landlord following possession. Should Landlord at any time terminate this Lease
for any default, in addition to any other remedy Landlord may have, Landlord
may recover from Tenant all damages Landlord may incur by reason of such
default, including the cost of recovering the Property and the loss of rent for
the remainder of the lease term. Landlord's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent
to or approval of any subsequent act by Tenant. The delivery of keys to any
employee or agent of Landlord shall not operate as a termination hereof or a
surrender of the Property.
13.4 LATE CHARGES. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amounts of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Property.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to six percent (6%) of such
overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount,
nor prevent Landlord from exercising any of the other rights and remedies
granted hereunder. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments of rent, then
rent shall automatically become due and payable quarterly in advance, rather
than monthly, notwithstanding any other provision hereof to the contrary. The
parties agree that the payment of late charges and the payment of interest as
provided elsewhere herein are distinct and separate from one another in that
the payment of interest is to compensate Landlord for the use of Landlord's
money by Tenant and the payment of late charges is to compensate Landlord for
administrative and other expenses incurred by Landlord.
13.5 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest at
the maximum rent then allowed
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by law (the "Default Rate") from the date due. Payment of such interest shall
not excuse or cure any default by Tenant under this Lease, provided, however,
that interest shall not be payable on late charges incurred by Tenant.
Notwithstanding any other term or provision hereof, in no event shall the total
of all amounts paid hereunder by Tenant and deemed to be interest exceed the
amounts permitted by applicable usury laws, and in the event of payment by
Tenant of interest in excess of such permitted amount, the excess shall be
applied towards damages incurred by Landlord or returned to Tenant, at
Landlord's option.
13.6 IMPOUNDS. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) installments of rent or
other monetary obligation which Tenant is late in paying, Tenant shall pay to
Landlord, if Landlord shall so request, in addition to any other payments
required under this Lease, monthly advance installments, payable at the same
time as the rent is paid for the month to which it applies, in amounts required
as estimated by Landlord to establish a fund for real property tax and
insurance expenses on the Property which are payable by Tenant under the terms
hereof. Such fund shall be established to insure payment when due, before
delinquency, of any or all such real property taxes and insurance premiums. If
the amounts paid to Landlord by Tenant under the provisions of this Section
13.6 are insufficient to discharge the obligations of Tenant to pay such real
property taxes and insurance premiums as the same become due, Tenant shall pay
to Landlord, upon Landlord's demand, additional sums necessary to pay such
obligations. All monies paid to Landlord under this Section 13.6 may be
intermingled with other monies of Landlord and shall not bear interest. In the
event of a default in the obligations of Tenant to perform under this Lease,
then any balance remaining from funds paid to Landlord under the provisions of
this Section 13.6 may, at the option of Landlord, be applied to the payment of
any monetary default of Tenant in lieu of being applied to the payment of real
property tax and insurance premiums.
13.7 DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than thirty (30) days after written notice by
Tenant to Landlord and to the holder of any first mortgage or deed of trust
covering the Property whose name and address shall have theretofore been
furnished to Tenant in writing, specifying the obligation that Landlord has
failed to perform; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performance within such 30-day period and thereafter diligently prosecutes the
same to completion. Notwithstanding any other provisions hereof, Landlord shall
not be in default hereunder for failure to perform any act required of Landlord
where such failure is due to inability to perform on account of strike, laws,
regulations or requirements of any governmental authority, or any other cause
whatsoever beyond Landlord's control, nor shall Tenant's rent be abated by
reason of such inability to perform.
14. CONDEMNATION. If the Property or any portion thereof is taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (either of which is herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than twenty percent (20%)
of the Property or such portion thereof as will make the Property unusable for
the purposes herein leased is taken by condemnation, either party may terminate
this Lease by notice to the other, in writing, only within ten (10) days after
Landlord shall have given Tenant written
14
notice of such condemnation or pending condemnation (or in the absence of such
notice, within ten (10) days after the condemning authority shall have taken
possession), such termination to take effect as of the date the condemning
authority takes possession. If neither party terminates this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Property remaining, except that the rent shall be
reduced in the proportion that the floor area taken bears to the total floor
area of the Property, and Tenant shall have no other rights or remedies as a
result of such condemnation. Any award or payment made in connection with a
condemnation shall be the property of Landlord, whether such award shall be
made in settlement of contemplated condemnation proceedings or as compensation
for diminution in value of the leasehold or for the taking of the fee, or as
severance or other damages; provided, however, that Tenant shall be entitled to
any separate award made to Tenant which does not diminish Landlord's award,
such as for loss of or damage to Tenant's trade fixtures and removable personal
property and Tenant's moving expenses. In the event that this Lease is not
terminated by reason of such condemnation, Landlord shall, to the extent of
severance damages received by Landlord in connection with such condemnation,
repair any damage to the Property caused by such condemnation except to the
extent that Tenant has been reimbursed therefor by the condemning authority.
Tenant shall pay any amount in excess of such severance damages required to
complete such repair. Landlord shall in no event be obligated to repair or
replace any items other than those installed by or at the expense of Landlord.
15. ESTOPPEL CERTIFICATE.
15.1 CERTIFICATE. Tenant shall at any time upon not less than ten
(10) days' prior written notice from Landlord execute, acknowledge and deliver
to Landlord and/or any lender or purchaser designated by Landlord a statement
in writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if applicable, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults
on the part of Landlord hereunder, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any purchaser or
encumbrancer of the Property.
15.2 FAILURE TO DELIVER CERTIFICATE. At Landlord's option,
Tenant's failure to deliver such statement within such time shall be a material
breach by Tenant under this Lease or shall be conclusive upon Tenant (i) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in Landlord's
performance, and (iii) that no rent has been paid in advance.
15.3 FINANCIAL STATEMENTS. If Landlord desires to finance,
refinance, or sell the Property, or any part thereof, Tenant hereby agrees to
deliver to any lender or purchaser designated by Landlord the past three (3)
years' financial statements of Tenant, in such detail as may be reasonably
required by such lender or purchaser. All such financial statements shall be
received by Landlord and such lender or purchaser in confidence and shall be
used only for the purposes of assessing the status of Tenant's tenancy and the
value of the Property.
16. SUBORDINATION.
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16.1 Tenant accepts this Lease subject to any deeds of trust,
master leases, security interests or mortgages which might now or hereafter
constitute a lien upon the Property and all renewals, extensions, modifications
and replacements thereof, and to recorded covenants and zoning ordinances and
other building and fire ordinances and governmental regulations relating to the
use of the Property. Tenant shall at any time hereafter, on demand, execute any
instrument, releases or other documents that may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such deed of trust, master lease, security interest or mortgage hereafter
constituting a lien on the Property. Tenant's failure to execute such documents
within ten (10) days after written demand shall constitute material default by
Tenant hereunder, or, at Landlord's option, Landlord shall execute such
documents on behalf of Tenant as Tenant's attorney-in-fact. Tenant does hereby
make, constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact
and in Tenant's name, place and stead, to execute such documents in accordance
with this Section 16. Landlord, at its sole option, shall have the right to
waive the applicability of this Section 16 so that this Lease will not be
subject and subordinate to any specific deed of trust, master lease, security
interest or mortgage.
16.2 This Lease and any modification hereof is subject to the
approval of any mortgagee of the Property from time to time. Any mortgagee
which did not have a mortgage affecting the Property at the time this Lease or
any modification hereof is made will be limited as to approval rights to the
extent that such mortgagee reserves the right to disclaim responsibility for
any capital improvements to the mortgaged premises which Landlord has agreed to
make, or covenants, contractual obligations or services which do not run with
the land. In order to further secure the indebtedness to any such mortgagee,
Landlord and Tenant hereby covenant for themselves and for the benefit of any
such mortgagee that this Lease shall be subject and subordinate to any mortgage
now or hereafter affecting the Property and all advances made or to be made
thereunder and all renewals, extensions, modifications, consolidations or
replacements thereof, including future advances thereunder or supplements
thereto, provided, however, that without limiting any of the foregoing, in the
event that by reason of any default on the part of Landlord the mortgagee
succeeds to the interest of Landlord, then, at the sole option of the
mortgagee, this Lease may nevertheless continue in full force and effect and
Tenant shall and does hereby agree to attorn to such mortgagee and to recognize
such mortgagee as Landlord in such event. Tenant hereby constitutes and
appoints Landlord and/or the mortgagee as Tenant's attorney-in-fact to execute
and deliver any such agreement of attornment for and on behalf of Tenant, and
it is further covenanted that (i) the provisions of said mortgage shall govern
with respect to the disposition of proceeds of insurance or condemnation or
eminent domain awards, and (ii) in the absence of the prior written consent of
the mortgagee, Tenant shall not prepay rent more than one (1) months in
advance, or enter into any agreement with Landlord to amend or modify this
Lease, or voluntarily surrender the Property or terminate the Lease without
cause, or surrender the Lease, or allow the release of the approved Tenant from
the obligations hereunder on assigning or subletting of the Property or any
part thereof. In the event of any act or omission by Landlord which would give
Tenant the right to terminate this Lease, Tenant shall not exercise any such
right until it shall have given thirty (30) days' written notice thereof to the
mortgagee at the address previously furnished to Tenant.
17. LANDLORD'S LIEN. In addition to the statutory landlord's lien,
Landlord shall have, at all times, a valid security interest to secure payments
of all rent, additional rent and other sums of money becoming due hereunder
from Tenant, and to secure payment of any damages or loss
16
which Landlord may suffer by reason of the breach by Tenant of any covenant,
agreement or condition contained herein, upon all goods, wares, equipment,
fixtures, furniture, improvements and other personal property of Tenant
presently or which may hereafter be situated in the Property, and all proceeds
therefrom, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord hereunder shall first have been paid and discharged
and all the covenants, agreements and conditions hereof have been fully
complied with and performed by Tenant. Upon the occurrence of an event of
default by Tenant, Landlord may, in addition to any other remedies provided
herein, enter upon the Property and take possession of any and all goods,
wares, equipment, fixtures, furniture, improvements and other personal property
of Tenant situated in the Property, without liability for trespass or
conversion, and sell the same at public or private sale, with or without having
such property at the sale, after giving Tenant reasonable notice of the time
and place of any public sale or of the time after which any private sale is to
be made, at which sale Landlord or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by law, and without intending to
exclude any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner prescribed
in this Lease at least five (5) days before the time of sale. The proceeds from
any such disposition, less any and all expenses connected with the taking of
possession, holding and selling of the Property (including reasonable
attorney's fees and other expenses), shall be applied as a credit against the
indebtedness secured by the security interest granted in this Section. Any
surplus shall be paid to Tenant or as otherwise required by law; and Tenant
shall pay any deficiencies forthwith. Upon request of Landlord, Tenant agrees
to execute and deliver to Tenant a financing statement in form sufficient to
perfect the security interest of Landlord in the aforementioned property and
proceeds thereof under the provisions of the Uniform Commercial Code in force
in the State of Florida. The statutory lien for rent is not hereby waived, the
security interest herein granted being in addition and supplementary thereto.
18. SIGNS. Tenant shall not place any sign on or about the Property
without Landlord's prior written consent. Upon reasonable notice thereof,
Landlord may change the name, number or designation by which the building or
project in which the Property in located is commonly known. Tenant shall not,
without the written consent of Landlord, use the name of the said building or
project other than as the address of Tenant's business in the Property, and in
no event shall Tenant acquire any rights in or to such name.
19. NOTICES.
19.1 Except as provided in subsection 19.2 below, any notice,
demand, request or other communication ("Notice") required or permitted to be
given hereunder shall be in writing and shall be deemed given when mailed by
certified or registered mail, postage prepaid, return receipt requested,
addressed to Tenant or to Landlord at the address noted below the signature of
such party. Notice given by any other means shall be deemed given when actually
received in writing. Either party may by notice to the other party specify a
different address for Notice purposes, which shall only be effective upon
receipt, except that upon Tenant's taking possession of the Property, the
Property shall constitute Tenant's address for Notice purposes. A copy of all
Notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereafter designate by notice to Tenant.
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19.2 Tenant hereby appoints as its agent to receive the service of
all dispossessory or distraint proceedings and legal notices the person in
charge of the Property at the time, or occupying the Property, and if there is
no person in charge or occupying the Property, then such service or notice may
be made by attaching the same on the main entrance of the Property.
20. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest
at the time of the modification. Except as otherwise stated in this Lease,
Tenant hereby acknowledges that neither Landlord nor any of its employees or
agents has made any oral or written warranties or representations to Tenant
relative to the condition or use by Tenant of said Property, and Tenant
acknowledges that Tenant assumes all responsibility regarding the Occupational
Safety Health Act, the legal use and adaptability of the Property, and the
compliance thereof with all applicable laws and regulations in effect during
the term hereof, except as otherwise specifically stated in this Lease.
21. ATTORNEY'S FEES. If Landlord brings an action to enforce the terms
hereof or declare rights hereunder, it shall be entitled to recover reasonable
attorney's and legal assistant's fees and costs incurred in connection
therewith, on appeal or otherwise, including those incurred in arbitration,
mediation, administrative or bankruptcy proceedings and in enforcing any right
to indemnity herein.
22. EASEMENTS. Landlord reserves to itself the right, from time to time,
to grant such easements, rights and dedications as Landlord deems necessary or
desirable, and to cause the recordation of plats and restrictions, so long as
such easements, rights, dedications, plats and restrictions do not unreasonably
interfere with the use of the Property by Tenant. Tenant shall promptly sign
any of the aforementioned documents upon request of Landlord and failure to do
so shall constitute a material breach hereof.
23. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not be liable or responsible
for, and there shall be excluded from the computation for any such period of
time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Landlord.
24. HOLDING OVER. If Tenant, with Landlord's consent, remains in
possession of the Property or any part thereof after the expiration of the term
hereof, such occupancy shall be a tenancy from month to month upon all the
provisions hereof pertaining to the obligations of Tenant, but all options and
rights of first refusal, if any, granted under the terms hereof shall be deemed
terminated and be of no further effect during said month to month tenancy. If
Tenant shall hold over without Landlord's express written consent, Tenant shall
become a tenant at sufferance and rental shall be due at the higher of (1) the
then prevailing market rate as determined by Landlord in its absolute
discretion; or (2) twice the rent payable immediately prior to the expiration
of the term. The foregoing provisions shall not limit Landlord's rights
hereunder or as provided by law in the event of Tenant's default.
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25. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the right
to enter the Property at reasonable times for the purpose of inspecting the
same, posting notices of non-responsibility, showing the same to prospective
purchasers, lenders, or tenants, performing any obligation of Tenant hereunder
of which Tenant is in default, and making such alterations, repairs,
improvements or additions to the Property or to the building of which it is a
part as Landlord may deem necessary or desirable, all without being deemed
guilty of an eviction of Tenant and without abatement of rent, and Landlord may
erect scaffolding and other necessary structures where reasonably required by
the character of any work performed, provided that the business of Tenant shall
be interfered with as little as reasonably practicable. Tenant hereby waives
any claims for damages for any injury to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Property, and any
other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon and about the Property, excluding Tenant's vaults and safes, if any,
and Landlord shall have the right to use any and all means which Landlord may
deem proper to open said doors in an emergency in order to obtain entry to the
Property, and any entry to the Property obtained by Landlord by any of said
means shall not under any circumstances be construed or deemed to be a forcible
or unlawful entry into, or a detainer of, the Property, or an eviction of
Tenant from the Property or any portion thereof. No provision hereof shall be
construed as obligating Landlord to perform any repairs, alterations or to take
any action not otherwise expressly agreed to be performed or taken by Landlord.
Landlord may at any time place on or about the Property any ordinary "For Sale"
signs and Landlord may at any time during the last 120 days of the term hereof
place on or about the Property any ordinary "For Lease" signs, all without
rebate of rent or liability to Tenant.
26. QUIET ENJOYMENT. Upon Tenant paying the rent for the Property and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Property for the entire term hereof subject to all of the
provisions hereof.
27. LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the fee title or a tenant's
interest in a ground lease of the Property, and in the event of any transfer of
such title or interest, Landlord herein named (and in case of any subsequent
transfers then the grantor) shall be relieved from and after the date of such
transfer of all liability as respects Landlord's obligations thereafter to be
performed, provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject to transfer of funds as aforesaid, be
binding on Landlord's successors and assigns only during their respective
periods of ownership. Tenant shall look solely to the equity of the then owner
of the Property in the Property for the satisfaction of any remedies of Tenant
in the event of a breach by Landlord of any of its obligations. Such
exculpation of liability shall be absolute and without any exception
whatsoever.
28. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions of
the foregoing Section, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of Florida.
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29. SEVERABILITY. The invalidity of any provision hereof under applicable
law shall in no way affect the validity of any other provision hereof.
30. TIME OF ESSENCE. Time is of the essence hereof.
31. ADDITIONAL RENT; SURVIVAL. Any and all monetary obligations of Tenant
under the terms hereof shall be deemed to be rent, shall be secured by any
available lien for rent, and to the extent accrued shall survive expiration or
termination of the term hereof.
32. COVENANTS AND CONDITIONS. Each provision hereof performable by Tenant
shall be deemed both a covenant and a condition.
33. MERGER. The voluntary or other surrender hereof by Tenant, or a mutual
cancellation thereof, or a termination by Landlord, shall not work a merger,
and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
Landlord of any or all of such subtenancies.
34. GUARANTOR. In the event that there is a guarantor hereof, said
guarantor shall have the same obligations as Tenant under this Lease.
35. SECURITY MEASURES. Tenant hereby acknowledges that the rental payable
to Landlord hereunder does not include the cost of guard service or other
security measures, and that Landlord shall have no obligation whatsoever to
provide same. Tenant assumes all responsibility for the protection of Tenant,
its agents and invitees from acts of third parties.
36. AUTHORITY. If Tenant is a corporation, trust, or general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity, and Tenant shall, within fifteen
(15) days after execution hereof, deliver to Landlord evidence of such
authority satisfactory to Landlord.
37. CONSTRUCTION. Any conflict between the printed provisions hereof and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions. Headings used herein shall not affect
the interpretation hereof, being merely for convenience. The terms "Landlord"
and "Tenant" shall include the plural and the singular and all grammar shall be
deemed to conform thereto. If more than one person executes this Lease, their
obligations shall be joint and several. The use of the words "include,"
"includes" and "including" shall be without limitation to the items which may
follow.
38. AUCTIONS. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Property, without first
having obtained Landlord's prior written consent.
39. CAPTIONS. The parties mutually agree that the headings and captions
contained in this Lease are inserted for convenience or reference only, and are
not to be deemed part of or used in construing this Lease.
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40. ARBITRATION. In the event of any dispute between Landlord and Tenant
with respect to any issue specifically mentioned in this Lease as a matter to
be decided by arbitration, such dispute shall be determined by arbitration in
accordance with the laws of the State of Florida dealing with arbitration, or
in the absence of such laws, the rules of the American Arbitration Association.
The decision resulting from the arbitration shall be binding, final and
conclusive on the parties, and a decision thereon may be entered by a court
having jurisdiction.
41. RADON GAS DISCLOSURE. The following language is required by law in any
contract involving the sale or lease of any building within the State of
Florida:
"RADON GAS: 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 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."
42. ENVIRONMENTAL COMPLIANCE.
42.1 Tenant shall not use, generate, manufacture, produce, store,
release, discharge or dispose of, on, under or about the Property, or transport
to or from the Property, any Hazardous Substance (as defined below), or allow
any other person or entity to do so. Tenant shall keep and maintain the
Property in compliance with, and shall not cause or permit the Property to be
in violation of, any Environmental Laws (as defined below).
42.2 Tenant shall give prompt notice to Landlord of (i) any
proceeding or inquiry by any governmental authority (including without
limitation the Florida Environmental Protection Agency or Florida Department of
Health and Rehabilitative Services) with respect to the presence of any
Hazardous Substance on the Property or the migration thereof from or to other
property; (ii) all claims made or threatened by any third party against Tenant,
Landlord or the Property relating to any loss or injury resulting from any
Hazardous Substance; and (iii) Tenant's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of the
Property under any Environmental Law or any regulation adopted in accordance
therewith.
42.3 Tenant shall protect, indemnify and hold harmless Landlord,
its directors, officers, employees, agents, successors and assigns from and
against any and all loss, damage, cost, expense or liability (including
attorneys' fees and costs) directly or indirectly arising out of or
attributable to the use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal, transport or presence of a Hazardous
Substance on, under, about, to or from the Property, including without
limitation, all foreseeable consequential damages and the costs of any
necessary repair, cleanup or detoxification of the Property, in any way arising
from the acts of Tenant.
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42.4 "Environmental Laws" shall mean any federal, state or local
law, statute, ordinance or regulation pertaining to health, industrial hygiene,
or the environmental conditions on, under or about the property, including
without limitation the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended from time to time ("CERCLA"), 42 U.S.C.
xx.xx. 9601 et seq., and the Resource Conservation and Recovery Act of 1976, as
amended from time to time ("RCRA"), 42 U.S.C. xx.xx. 6901 et seq. The term
"Hazardous Substance" shall including without limitation: (i) those substances
included within the definition of "hazardous substances," "hazardous
materials," "toxic substances," or "solid waste" in CERCLA, RCRA, and the
Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 1801 et seq., and in
the regulations promulgated pursuant to said laws; (ii) those substances
defined as "hazardous wastes" in any Florida Statute and in the regulations
promulgated pursuant to any Florida Statute; (iii) those substances listed in
the United States Department of Transportation Table (49 CFR 172.101 and
amendments thereto) or by the Environmental Protection Agency (or any successor
agency) as hazardous substances (40 CFR Part 302 and amendments thereto); (iv)
such other substances, materials and wastes which are or become regulated under
applicable local, state or federal law, or which are classified as hazardous or
toxic under federal, state or local laws or regulations; and (v) any material,
waste or substance which is (1) petroleum, (2) asbestos, (3) polychlorinated
byphenyls, (4) designated as a "hazardous substance" pursuant to Section 311 of
the Clean Water Act, 33 U.S.C. ss.ss.1251 et seq., or listed pursuant to
Section 307 of the Clean Water Act, (5) flammable explosive, or (6) radioactive
materials.
42.5 Landlord shall have the right to inspect the Property and
audit Tenant's operations thereon to ascertain Tenant's compliance with the
provisions of this Lease at any reasonable time, and Tenant shall provide
periodic certifications to Landlord, upon request, that Tenant is in compliance
with the environmental restrictions contained herein. Landlord shall have the
right, but not the obligation, to enter upon the Property and perform any
obligation of Tenant hereunder of which Tenant is in default, including without
limitation, any remediation necessary due to environmental impact of Tenant's
operations on the Property, without waiving or reducing Tenant's liability for
Tenant's default hereunder.
42.6 All of the terms and provisions of this Section shall survive
expiration or termination of this Lease for any reason whatsoever.
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH
RESPECT TO THE PROPERTY.
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WITNESSES: LANDLORD:
WILLIAMSBURG RETIREMENT INVESTORS, LTD., A
FLORIDA LIMITED PARTNERSHIP
By: WILLIAMSBURG RETIREMENT LIVING, INC.,
------------------------------ A FLORIDA CORPORATION, GENERAL PARTNER
Print Name: Xxxxxxx Xxxxxx
------------------- By: /s/ Xxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxx ----------------------------------------
------------------------------ Xxxxxx Xxxxxxxx, Director of Finance
Print Name: Address: 00000 Xxxxxxxx Xxxxxxxxx
------------------- Xxxxx, Xxxxxxx 00000
Date: 11-1-01
---------------------------------------
WITNESSES: TENANT:
SFBC INTERNATIONAL, INC., A DELAWARE
CORPORATION
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------------
(Signature) Name: Xxxxxx Xxxxxxx
Print Name: Xxxxxxx Xxxxxx --------------------------------------
------------------- Title: CEO
-------------------------------------
------------------------------
Print Name: Address: 00000 Xxxxxxxx Xxxx.
------------------- Xxxxx, Xxxxxxx 00000
-----------------------------------
Date: 11-1-01
--------------------------------------
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