LEASE AGREEMENT
THIS LEASE ("Lease") is entered into by and between XXXXXXXXXX PROPERTIES, INC.
with offices at 193 0X Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000
("Landlord") and American Glaucoma Institute of Florida -Clearwater, Inc., a
Florida Corporation, with offices at 0000 Xxxxxxxx Xxxx, Xxxxx 0, Xxxxx, Xxxxxxx
00000 ("Tenant").
1. PREMISES. Landlord leases to Tenant, and Tenant leases and rents from
Landlord, the space shown and identified on the schematic attached hereto as
Exhibit "A" and incorporated herein, comprising approximately 3,936 square feet
of rentable floor area known as Suite I ("Premises") in the building located at
0000 Xxxxxxxx Xxxx, Xxxxx, XX ("Building").
2. TERM. The term of this Lease shall be three (3) year(s) unless sooner
terminated or extended as provided herein. The term shall commence on October 1,
1998 ("Commencement Date") and shall end at 6:00 PM on September 30, 2001
("Expiration Date").
3. TENDER OF POSSESSION. In the event possession of the Premises is not tendered
by Landlord to Tenant on Commencement Date for any reason or cause, Landlord
shall not be liable or responsible for any claims, damages or liabilities in
connection with or by reason thereof nor shall the obligations of Tenant
hereunder be excused by reason of any such delay; provided, however, that Tenant
shall not be obligated to pay any rents and charges (other than deposits) until
Landlord has tendered possession of the Premises; and provided further, that if
Landlord shall not have tendered possession of the Premises within sixty (60)
days from the Commencement Date, Tenant may, at Tenants' option, by written
notice to Landlord within ten (10) days thereafter, cancel and terminate this
Lease. If Landlord shall not have tendered possession of the Premises within one
year from the Commencement Date, Landlord may by written notice to Tenant within
the (10) days thereafter cancel and terminate this Lease. If either party so
cancels this Lease, according to the provisions stated above, Landlord shall
return without interest any moneys previously deposited by Tenant, and the
parties shall be discharged from any and all further obligations hereunder.
4. RENTS. Tenant agrees to pay Landlord rental of ($10.75psf) $42,312.00 per
year plus sales and use tax, as adjusted annually pursuant to Section 6 ("Base
Rent").
The Base Rent shall be payable in equal and consecutive monthly installments of
$3,526.00 plus applicable sales tax in advance on the 1st day of each calendar
month during the term.
If the Commencement Date occurs on a date other than the first day of a calendar
month, rent shall be prorated (on daily basis) for the fractional month at the
beginning of the term and paid on the Commencement Date, and rent for the
fractional month at the end of the term shall similarly be prorated.
Tenant covenants and agrees to pay as additional rent a late fee equal to ten
(10%) percent of any Base Rent, additional rent or other charges or payments due
under this Lease that are not paid within five (5) days of their due date. Said
fee is intended to reimburse Landlord for the additional bookkeeping and
administrative costs resulting from Tenants late payment.
Upon execution of the Lease, Tenant shall pay first month's rent plus sales tax
equaling $3,772.82, and a security deposit in accordance with paragraph 7 herein
equaling $3,772.82, for a total of $7,545.64.
5. OPERATING COSTS. Tenant agrees to pay promptly before delinquency all charges
for electricity, gas, water, sewer, and other utilities supplied to the
Premises, whether determined by separate meter or otherwise. Such utilities
shall be paid within the prescribed time therefor set by the billing authority.
In the event such billing be made through a metering device whereby the charges
therefor may be billable to Landlord, then Landlord shall
deliver written notice, thereof to Tenant and Tenant shall pay its portion
thereof upon demand. Said amount Shall be for the purpose of determining a
default under this Lease and deemed rent pursuant to Section 4 hereof. Tenant
shall pay interest on any payments made by Landlord on behalf of Tenant pursuant
hereto at the maximum legal contract rate permitted by the laws of the State of
Florida. Notwithstanding same, Landlord shall not be obligated to tender any
such payments on behalf of Tenant.
6. ADJUSTMENT OF BASE RENT. The Base Rent shall be increased for the second and
each succeeding lease year by an amount equivalent to fifty cents per square
foot ($.50psf) over the Base Rent for the immediately preceding lease year.
7. SECURITY DEPOSIT. Tenant shall deposit with Landlord, upon execution hereof;
$3,772.82 as security for Tenant's faithful performance of Tenant's obligations
hereunder. If Tenant fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision hereof; Landlord may use, apply
or retain all or any portion of said deposits for the payment of any rent or
other charge in default or for the payment of any other sum to which Landlord
may become obligated by reason of Tenants default, or to compensate Landlord for
any loss or damage which Landlord may suffer thereby.
If Landlord so uses or applies all or any portion of said deposit, Tenant shall,
within ten (10) days after written demand therefor, deposits cash with Landlord
in an amount sufficient to restore said deposit to the full amount hereinabove
stated, and Tenant's failure to do so shall be material breach hereof. Landlord
shall not be required to keep said deposit separate from its general accounts.
If Tenant performs all of Tenant's obligations hereunder, said deposit, or so
much thereof as has not therefore been applied by Landlord, shall be returned;
without payment Of interest or other increment for its use, to Tenant (or, at
Landlord's option, to the last assignee, if any, of Tenant's interest hereunder)
within thirty (30) days after the expiration of the term hereof, and after
Tenant has vacated the Property.
8. USE. The Premises shall be used for office and related purposes and no other
purpose. The Premises shall not be used for retail sales or for any illegal
purpose, nor in any manner that would create any nuisance or trespass or vitiate
any insurance on the Premises of the Building. Tenant agrees to comply with all
governmental rules' regulation, decrees, or requirements applicable to the use
and occupancy of the premises. If Tenant receives notice of any claim of
violation of any law, rule or regulation applicable to the Premises of Building,
Tenant shall promptly notify Landlord of such claim. Tenant shall not do or
permit anything to be done in or about the Premises which will interfere with
the rights of other Tenants in the Building or use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose. Tenant shall
not commit or suffer to be committed any waste in or upon the Premises.
9. LANDLORD'S INTEREST NOT SUBJECT TO LIENS. As provided in 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 the County in which the property
exists, in accordance with said statute, without Tenant's joinder or consent.
10. REPAIR AND MAINTENANCE.
a. Tenant accepts the Premises and the Building in their present condition as
suited for the use intended by Tenant. Tenant will, at its sole expense,
maintain the Premises in a clean, attractive condition and in good repair.
At the Expiration Date or other termination of the term, Tenant shall
surrender and deliver up the Premises (together with all keys to the
Premises) in like good order and condition as the same now are or shall be
at the Commencement Date, ordinary wear and tear, and damage by fire and
other unavoidable casualty not due to the negligence of Tenants, excepted.
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b. Landlord will repair and maintain the structural portions of the Building,
including the basic plumbing, air-conditioning. beating, and electrical
systems, installed or furnished by Landlord, unless such maintenance and
repairs are caused in part or whole by the act, neglect, fault or omission
of Tenant, Tenant's pests or invitees, or persons otherwise permitted on
the Premises by Tenant, in which case Tenant shall directly pay to Landlord
the reasonable cost of such maintenance or repairs. Landlord shall not be
liable for any failure to make any such repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time
after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Except as may be hereinafter provided, there shall be
no abatement of rent and no liability of Landlord by reason of any injury
to or interference with tenants business arising from the making of any
repairs, alterations, or improvements in or to any portion of the Building
or the premises or in or to fixtures, appurtenances, and equipment therein.
Tenant waives the right to make repairs at Landlord's expense under any
law, statute or ordinance now or hereafter in effect. Tenant will be
responsible for normal maintenance on plumbing, a/c, heating and electrical
systems up to $250.00 per occurrence.
11. ALTERATIONS, ADDITIONS, OR IMPROVEMENTS. Tenant shall not make any
alterations additions or improvements (structural or otherwise) in or upon the
Premises or the Building, without obtaining Landlord's prior written consent.
Any permitted additions or alterations shall conform to all building code
standards and other requirements of the federal, state and local governments;
and Tenant shall obtain all required governmental permits and approvals prior to
beginning any work at the Premises.
All additions, alterations, installations, changes, replacements or improvements
upon the Premises (including, but limited to, floor coverings, wall and ceiling
lighting fixtures, window blinds and coverings, drapes and drapery hardware),
whether made or installed by Tenant or by Landlord for Tenant's benefit, shall
remain upon the Premises, become the property of Landlord, and be surrendered
with the Premises and without disturbance or injury at the Expiration Date or
other termination of this Lease. Should Landlord elect that certain alterations,
installations, replacements, additions to or improvements upon the Premises be
removed upon the Expiration Date or other termination of this Lease, Tenant
shall cause the same to be removed at Tenant's sole cost and expense, and Tenant
shall repair any damage that may be caused by said removal.
No later than the Expiration Date, Tenant shall remove all its property from the
Premises and shall repair all injury done in connection with the installation or
removal of said property. All personal property of Tenant remaining on the
Premises after the Expiration Date shall be deemed abandoned and may, at the
election of Landlord, be removed and Tenant shall reimburse Landlord any costs
of removing the same.
In doing work of the nature described in this section, Tenant shall use only
contractors or workmen approved by Landlord. Tenant shall also remove or
appropriately bond off any lien for material or labor claimed to be furnished to
the Premises on Tenant's behalf within ten (10) business days of Tenant's notice
of the filing of such a lien.
Landlord, at Landlord's sole expense, shall recarpet the Leased Premises (carpet
samples shall be given to the Tenant for color selection) and repair and repaint
the existing front doors. Landlord, after full execution of the Lease and the
bank clearance of the first month's rent and security deposit checks, shall
allow the Tenant access to the Leased Premises to begin their Tenant
modifications. Tenant will abide by all stipulations, restrictions and covenants
of the Lease during this access period (to include, but not limited to,
insurance requirements).
12. FIXTURES AND EQUIPMENT: REPAIR OR DAMAGE. Landlord shall have the right to
prescribe the weight and position of all safes, computer facilities, and other
heavy equipment or fixtures on the Premises. Tenant shall not install or operate
any heavy equipment or electrically operated equipment or machinery (other than
typewriters, adding machines and other items normally used in modem offices)
without first obtaining the written consent of Landlord. Such consent may be
conditioned by Landlord upon the payment by Tenant of additional rent as
compensation for the excess consumption of water and/or electricity or the cost
of additional wiring occasioned by the operation of said equipment or machinery.
Tenant shall not install any other equipment of any kind which would necessitate
changes, replacements or additions to the water system, plumbing system, heating
system, air
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conditioning system, or electric system, the Premises or the Building, without
the prior written consent of Landlord, which consent may be conditioned upon the
payment by Tenant of the cost of any such changes, replacements or additions to
any of said systems.
The Landlord shall be given two (2) business days notice of all movement by
Tenant of furniture, equipment or other materials within the public or common
areas and the Landlord, shall not be responsible for any damages to or charges
for moving the same. Any injury to the Premises or the Building caused by moving
property of Tenant into or out of the Building, and all breakage caused by
Tenant or the agents, servants, employees and visitors of Tenant shall be
repaired by Tenant at its expense.
13. SIGNS AND ADVERTISING. No sign, advertising or notices shall be inscribed,
affixed or displayed on any part of the outside or the inside of the Building,
or on any part of the outside of the Premises, except as approved in writing in
advance by Landlord which approval shall not be unreasonably withheld. Landlord
shall have the right to prohibit any advertisement of Tenant which in Landlord's
opinion tends to impair the reputation of the Building or its desirability as a
high-quality office building. All such signs and advertising shall comply with
the applicable laws and ordinances.
14. INSURANCE. Landlord shall insure the Building against damage by fire and
casualty, including extended coverage, in any amount Landlord in its sole
discretion shall deem adequate, and shall maintain such insurance throughout the
term.
Tenant shall insure all of its property, including leasehold improvements, at
the Premises against damage by fire and casualty, including extended coverage,
in such amount as shall be approved by Landlord, and Tenant shall maintain such
insurance throughout the term. In addition, Tenant shall maintain with respect
to the premises, comprehensive public liability insurance, with minimum limits
of $1,000,000 for personal injury and $1,000,000 for property damage, such
insurance shall be for the joint benefit of Landlord and Tenant and shall name
Landlord and Managing Agent as additional insureds.
The insurance coverages required of Tenant shall be maintained with companies
qualified to do business in Florida and otherwise acceptable to Landlord. Tenant
shall deliver certificates of insurance indicating the above-specified coverages
to Landlord no later than the Commencement Date, and continuing evidence of such
coverages annually thereafter. Such insurance policies shall be in a form
reasonably satisfactory to the Landlord and Managing Agent and shall provide for
non-cancellation without at least ten (10) days prior written notice.
15. INSURANCE RATING. if any increase in rating of fire insurance or other
insurance as stated by any insurance company or by the applicable Insurance
Rating Bureau to be due to activity or equipment in or about the Premises, such
statement shall be evidence that the increase in such rate is due to such
activity or equipment and, as a result thereof Tenant shall be liable for such
increase and shall reimburse Landlord therefore.
16. MUTUAL WAIVERS OF SUBROGATION. Neither Landlord, nor Managing Agent shall be
liable (by way of subrogation or otherwise) to any party (or to pay insurance
company insuring another party) for any loss or damage to any property covered
by insurance, even though such loss or damage might have been occasioned by the
negligence of Landlord, Tenant or Managing Agent, or their respective agents,
employees invitees, or guests. This provision shall be in effect only so long as
the applicable insurance policies shall provide that the aforementioned waiver
shall not affect the right of the insured to recover under such policies, and
each party shall use its best efforts (including payment of additional premiums,
if necessary) to have its insurance policies contain the standard waiver of
subrogation clause. In the event landlord's or Tenant's insurance carrier
decline to accept a standard waiver of subrogation clause, Landlord or Tenant,
as the case may be, shall promptly notify the other party, in which event the
other party shall not be required to have its insurance policies contain waiver
of subrogation clause.
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17. DEFAULT. The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
a. Tenant's failure to make payments of any Base Rent Additional Rents or
other rents and charges due hereunder, where such failure shall continue
for a period of five (5) days after rent or charges are due-,
b. Tenant's failure to perform or comply with any of its covenants, agreements
or obligations hereunder for a period of five (5) days after written notice
by Landlord;
c. The vacating or abandonment of the Premises;
d. The making by Tenant of any general assignment or general arrangement for
the benefit of creditors; or the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt, or a petition or reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant the same is dismissed within sixty (60) days
of the appointment or a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenants
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days or the attachment execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged in thirty (30)
days; or
e. The assignment or subletting of all or part of the Premises, either
voluntary or by operation of law, without the written consent of Landlord.
8. REMEDIES ON DEFAULT. In the event of any default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand:
a. Terminate Tenant's right to possession under the lease and reenter and
retake possession of the Premises and relet or attempt to relet the
Premises on behalf of Tenant at such rent and under such terms and
conditions as Landlord may deem best under the circumstances for the
purpose of reducing Tenant's liability. Landlord shall not be deemed to
have thereby accepted a surrender of the Premises, and Tenant shall remain
liable for all Rents and Charges due under this Lease and for all damages
suffered by Landlord because of Tenant's breach of any of the covenants of
the Lease.
b. Declare this Lease to be terminated, ended and null and void, and reenter
upon and take possession of the Premises whereupon all right, title and
interest of the Tenant in the Premises shall end.
c. Accelerate and declare the entire remaining unpaid Base Rent and Additional
Rent for the balance of this Lease to be immediately due and payable
forthwith, and may, at once, take legal action to recover and collect the
same.
All rights and remedies of Landlord herein enumerated shall be cumulative
and nothing herein contained shall exclude any other right or remedy
allowed by law.
No reentry or retaking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a
written notice of such intention be given to Tenant. Nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any Rents
and Charges due to Landlord hereunder or any damages accruing to Landlord
by reason of the violations 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. 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 violation or default.
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Legal options to recover for 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 repossession.
19. LANDLORD'S CURE OF DEFAULT BY TENANT. If Tenant fails to make any payment or
to promptly do any act or perform any obligation required of Tenant hereunder,
then Landlord at its option may make such payment or do such act or perform such
obligation. In such case, any charges or expenses paid, incurred or suffered by
Landlord, together with interest thereon at the rate of eighteen (18 %) percent
per annum, from the date paid by Landlord, shall constitute additional rent due
and payable by Tenant to Landlord along with the next monthly installment of
Rents and Charges after Landlord has sent a written invoice therefore; provided,
however, that any such payments, actions or performance by Landlord shall not
operate to cure such failure(s) by Tenant, or to estop Landlord from the pursuit
of any remedy to which Landlord would otherwise be entitled.
20. NO WAIVER. If under the provisions hereof any compromise or settlement shall
be made, or if Landlord or Tenant fails to insist upon strict performance by the
other party of any provision hereof-, it shall not be construed as a waiver or
relinquishment for the future of any such provision, but such provision shall
remain in fig force and effect. No waiver of any provision of this Lease shall
be deemed to have been made, unless in writing and signed by the party to be
charged therewith. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of Rents and Charges herein stipulated
shall be deemed to be other than on account of the earliest stipulated Rents and
Charges, nor shall any endorsement or statement on any check (or any letter
accompanying any check or payment) be deemed an accord and satisfaction, and
Landlord may accept any such check or payment without prejudice to Landlord's
right to recover the balance of such Rents and Charges or to pursue any other
remedy in this Lease. No reentry by Landlord, and no acceptance by Landlord of
keys from Tenant, shall be considered an implied acceptance of a surrender of
this Lease.
21. LANDLORD'S LIEN. Tenant hereby pledges and assigns to Landlord, and grants
to Landlord a security interest in and against (under the Uniform Commercial
Code as enacted in Florida) all goods, furniture, equipment fixtures, and other
personal property of Tenant which are presently or may hereafter be situated on
the Premises, and all proceeds therefrom, as security for payment of the Rents
and Charges hereunder. The lien and security interest hereby created may be
enforced and/or perfected, at the election of Landlord in any lawful manner.
22. INSPECTION. Tenant shall allow Landlord, its agents and employees, to enter
the Premises at all reasonable times without charge to examine or inspect the
Premises, or to prevent damage of injury to the same, or to make such
alterations and repairs as Landlord may deem necessary, or to exhibit the same
to prospective tenants during the last three months of the term.
23. LIABILITY FOR DAMAGE TO PERSONAL PROPERTY AND PERSONS. Landlord shall not be
liable to Tenant for (i) any accident or damage caused by electric lights or
wires or the operation of elevators, heating, lighting or plumbing apparatus, or
any accident or injury occurring in the connection with the Building and its
services, (ii) losses of or damage to property of Tenant caused by rain, water
or steam that may leak into or flow from any part of the Building through any
defect in the roof or plumbing or from any other source, including but not
limited to acts or omissions on the part of other tenants of the Building or
person using or present at the Building, or (iii) thefts or losses of, or damage
to, any goods, cask personal effects or other personal property stored or placed
by Tenant (or its employees, agents visitors, licensees or invitees) in or about
the Premises or the Building, unless the losses or damages referred to in said
items (i) through (iii) are caused by negligence of Landlord and are covered by
casualty or liability insurance carried by Landlord.
24. INDEMNIFICATION. Tenant shall indemnify and save harmless Landlord and its
Managing Agent from and against any and all claims, actions, damages, liability
and expenses, including court costs and reasonable attorneys' fees, in
connection with the loss of life, personal injury and/or damages arising in
whole or in part from or out of any occurrence in, upon or at the Premises, (ii)
the occupancy or use by Tenant or any other party of the Premises, or (iii) any
act or omission of Tenant, its agents, servants, employees, assignees or
invitees.
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25. FIRE AND CASUALTY DAMAGE. If the portion of the Building of which the
Premises are a part Is damaged by fire or other casualty but remains tenable,
Landlord shall repair and restore said portion of the Building within one
hundred twenty (120) days (or such longer period of time as may be reasonably
necessary under the circumstances) thereafter and this Lease shall not be
terminated. In such event during the period that Tenant is deprived of the use
of the Premises, Tenant shall be required to utilize any of the Premises that
Tenant is able to occupy, the Rents and Charges for said remaining space shall
be that portion of the total Rents and Charges which the amount of square foot
area that can be occupied bears to the total square foot area of the entire
Premises.
If said portion of the Building shall be so damaged by fire or other casualty as
to be untenable, then unless said damage is repaired by Landlord within ninety
(90) days thereafter, either party hereto, upon written notice to the other
party given at any time following the expiration of said 90-day period, may
terminate this Lease, in which case all Rents and Charges shall be apportioned
and paid to the date of said fire or other casualty.
Notwithstanding the preceding provision, if the Building is so severely damaged
or destroyed by fire or other casualty (although the Premises may not be
affected) that Landlord shall decide within a reasonable time not to rebuild or
reconstruct the Building, then this Lease shall terminate. No compensation or
claim for diminution of Rents and Charges will be allowed or paid by Landlord,
by reasons of inconvenience, annoyance or injury to business, arising from the
necessity of repairing the Premises, or any portions of the Building. If the
Leasehold Improvements of the Premises are destroyed by fire or other casualty,
Tenant, at Tenant's sole expense, shall promptly restore the Leasehold
Improvements as nearly as possible to their condition prior to such damage or
destruction.
26. CONDEMNATION. If the Premises, or any part thereof, shall be taken or
condemned or sold for public or quasi-public use or purpose by or to any
government authority, this Lease shall fully cease and terminate as of the date
when possession is delivered to such authority. In such event, Tenant shall have
no claim against Landlord (for the value of the unexpired term, for leasehold
improvements, for goodwill or loss of business, or otherwise), and shall not
have any claim or right to any portion of the award or damages that may be paid
as a result of any such condemnation, and any rights of tenant to damages
therefore are hereby assigned by Tenant to Landlord.
27. ASSIGNMENT AND SUBLETTING. Tenant will not sublet the Premises or any part
thereof (or transfer possession or occupancy thereof) to any person, firm or
corporation, or transfer or assign this Lease, without the prior written consent
of Landlord, nor shall any subletting or assignment be effected by operation of
law or otherwise than by the prior written consent of Landlord. The consent by
Landlord to any assignment transfer or subletting shall not be construed as a
waiver or release of Tenant from the terms of any covenant or obligation under
this Lease, nor shall the collection or acceptance of Rents; and Charges from
any such assignee, transferee, subtenant or occupant constitute or be construed
as such a waiver or release of Tenant or Guarantor.
28. HOLDING OVER. In the event Tenant shall not immediately surrender the
Premises on the Expiration Date, Tenant shall become a tenant by the month at
twice the monthly Rents and Charges in effect during the month preceding the
Expiration Date. Tenant shall thereafter be subject to all conditions and
covenants of this Lease as though the same had originally been a monthly
tenancy. Thereafter, Tenant shall give Landlord at least thirty (30) days'
written notice of any intention to quit the Premises, and Tenant shall be
entitled to thirty (30) days' written notice from Landlord to quit the Premises
(except in the event of any failure or breach under Section 19, in which event
the provisions of Section 19 shall govern).
Notwithstanding the foregoing provisions, in the event that Tenant shall hold
over after the Expiration Date and Landlord shall desire to regain possession of
the Premises promptly at such time then at any time prior to Landlord's
acceptance of rents and charges from Tenant as a monthly tenant hereunder,
Landlord at its option may reenter and take possession of the Premises in any
manner permissible under the laws of the State of Florida.
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29. SUBORDINATION. This Lease is subject and subordinate to any mortgage which
may now or hereafter encumber or otherwise affect the real estate (including the
Building) of which the Premises form a part, and to all renewals, extensions,
modifications, consolidations, replacements, recastings and/or refinancing
thereof. This provision shall be self-operative, and no further instrument of
subordination shall be required by any mortgagee. In confirmation of such
subordination, upon Landlord's request, Tenant shall promptly execute any
requisite or appropriate certificate or document. Tenant hereby constitutes and
appoints Landlord as Tenant's attorney-in-fact to execute any such certificate
for or on behalf of Tenant. In the event that any proceedings are brought for
the foreclosure of any such mortgage, Tenant shall attorn to the purchaser at
such foreclosure sale and shall recognize such purchaser as the landlord under
this Lease, and Tenant waives the provisions of any statute or rule of law (now
or hereafter in effect) which may give or purport to give Tenant any right to
terminate or otherwise adversely affect this Lease and the obligations of Tenant
hereunder in the event that any such foreclosure proceeding is prosecuted or
completed. At the written request of the party secured by any such mortgage,
Tenant shall also execute, acknowledge and deliver any instrument that has for
its purpose and effect the confirmation of the above subordination of the Lease
to any mortgage.
30. ESTOPPEL CERTIFICATE. Tenant agrees, at any time and from time to time, upon
not less than ten (10) days' prior written notice by Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing (i) certifying that
this Lease is unmodified and in full force and effect or, if there have been
modifications, that this Lease is in full force and effect as modified and
stating any such modification; (ii) certifying that Tenant has accepted
possession of the Premises; (iii) stating that no rents and charges under this
Lease have been paid more than thirty (30) days in advance' (iv) stating the
address to which notices to Tenant should be sent; (v) certifying that Tenant,
as of the date of any such certification, has no charge, lien or claim of set
off under this Lease otherwise, against Rents and Charges; and (vi) stating
whether or not, to the best of Tenants knowledge, landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease,
and, if so, specifying each such default of which Tenant may have knowledge.
Any statement delivered pursuant hereto may be relied upon by any prospective
mortgagee of the Building or of Landlord's interest or any prospective assignee
of any such mortgage.
Tenant further agrees that it will not seek to terminate this Lease by reason of
any act or omission of Landlord until Tenant shall have given written notice of
such act or omission to any mortgagees of Landlord as may have been given to
Tenant by Landlord from time to time, at such address or addresses and until a
reasonable period of time shall have elapsed following the giving of such
notice, during which period of time Landlords mortgagees shall have the right,
but shall not be obligated, to remedy such act or omission.
31. NOTICES. All notices and communications required or desired to be given
hereunder by either party to the other shall be given either by personal
delivery or by certified or registered mail, postage prepaid, return receipt
requested, and shall be deemed to have been given upon the earlier of actual
receipt or three business days after posting. All such notices shall be
addressed as follows:
LANDLORD:
XXXXXXXXXX PROPERTIES, INC.
c/o Fox and Associates, Inc.
0000 Xxxxx Xxxx Xxxxx Xxxxxxx, #000
Xxxxx, Xxxxxxx 00000
TENANT:
American Glaucoma Institute of Florida - Clearwater, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxx, Xxxxxxx 00000
8
Either party may, by like written notice, designate a new address to which such
notices shall be directed, In addition, all Rents and Charges payable by Tenant
to Landlord shall be paid to the Managing Agent at his address set forth above.
32. NO PARTNERSHIP. Nothing contained in this Lease Shall be deemed or construed
to create a partnership or joint venture among Landlord, Managing Agent and/or
Tenant, or create any other relationship between the parties hereto other than
that of Landlord and Tenant.
33. NO REPRESENTATION BY LANDLORD. Neither Landlord nor any agent or employee of
Landlord, has made any representations or promises with respect to the Premises
or the Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are acquired by Tenant except as herein set forth.
'Me taking of possession of the Premises by Tenant shall be conclusive evidence
that the Premises and the Building are in good and satisfactory condition as of
the Commencement Date, except as herein expressly set forth the taking of
possession of the Premises by Tenant shall be conclusive evidence that the
Premises, and the Building are in good and satisfactory condition as of the
Commencement Date.
34. BROKERAGE. Each party represents that it has not had dealing with any real
estate broker, finder or other person with respect to this Lease, except FOX AND
ASSOCIATES, INC. Each party shall indemnify and hold harmless the other party
from all damages resulting from claims asserted against the other party by any
other broker, finder or persons with whom the party has or purportedly has
dealt, and Landlord shall pay any commissions or fees that are payable to the
aforesaid named broker or finder with respect to the Lease, in accordance with
the provisions of a separate commission contract.
35. QUIET ENJOYMENT. Tenant shall have the peaceful and quiet use of the
Premises for the term of this Lease, without hindrance or interruption by
Landlord or any other person lawfully claiming by, through or under Landlord,
subject to Tenant's observance and performance of all terms and conditions of
this Lease, and to any and/or Landlord's interest in the Premises and the
Building, may be subordinate. Landlord warrants that he has full right and
authority to enter into this Lease for the full term.
36. RULES AND REGULATIONS. Tenant will observe and comply with any reasonable
rules and regulations that Landlord may prescribe (by written notice to Tenant)
for the safety, care and cleanliness of the Building and the Parking Area, and
the comfort, quiet and convenience of other occupants of the Building.
37. RENTABLE FLOOR AREA. As used in this Lease, the term "rentable floor area"
shall mean (i) the number of usable square feet of floor area within die
Premises, plus (ii) Tenant's deemed pro rata share of the square footage within
the common areas of the Xxxxxxxx,
00. LENDER'S MODIFICATION. If in connection with securing financing for the
Building, an institutional lender shall request reasonable modifications in this
Lease as a condition to such financing, Tenant will not unreasonably withhold or
delay its consent, provided that such modifications do not increase the
obligations of Tenant hereunder or materially adversely affect Tenants leasehold
interest or Tenant's use and enjoyment of the Premises.
39. APPLICABLE LAW. Florida Law shall govern the validity, performance and
enforcement of this Lease. If any provisions of this Lease shall at any time be
deemed to be invalid or illegal by any court of competent jurisdiction, this
Lease shall not be invalidated thereby. In such event, THIS Lease shall be
construed as if such invalid or illegal provisions had not been contained
herein, thereby preserving all of the other terms, conditions, and provisions of
this Lease.
9
40. ATTORNEY'S FEES, ETC. Should either party employ an attorney or attorneys to
enforce any of the provisions hereof or to protect its interest in any matter
arising hereunder, or to recover damages for the breach
hereof the party prevailing shall be entitled to recover from the other party
all reasonable costs, charges and expenses, including attorneys' fees, the value
of time charged by paralegal and/or other staff members operating under the
supervision of an attorney, and other legal costs expended or incurred in
connection therewith, before, during and subsequent to any litigation, including
arbitration and appellate proceedings, bankruptcy or similar debtor/creditor
proceedings, and proceedings to enforce any indemnity agreement herein
contained.
41. ENTIRE AGREEMENT. This Lease, together with the Exhibits incorporated
herein, contains the entire and only agreement between the parties, and no oral
statements or representations or prior written matter not contained or referred
to in this instrument shall have any force or effect. This Lease shall not be
modified in any way except in writing subscribed by both Landlord and Tenant.
42. HEIRS AND ASSIGNS: MISCELLANEOUS. The provisions of this Lease shall inure
to the benefit of and be binding upon Landlord and Tenant, and their respective
successors, heirs, executors, administrators, legal representatives and assigns.
Landlord may freely and fully assign its interest hereunder, and the term
"Landlord" as used in this Lease means only the then owner of the Building and
the Premises.
Accordingly, in the event of any sale or lease of the Building and the Premises,
Landlord shall be entirely relieved of all covenants and obligations of Landlord
accruing thereafter, and it shall be deemed without further agreement that the
purchaser of the lease, as the case may be, have assumed and agreed to carry out
all covenants and obligations of Landlord hereunder during the period such party
has ownership and/or possession of the Building and the Premises. Neither the
shareholders, nor the officers nor the directors of Landlord shall be liable for
the performance of Landlord's obligations under this Lease. Tenant further
agrees that the liability of Landlord for its obligations under this Lease is
specifically limited to Landlord's interest in the Building and the Premises,
and Landlord shall never be personally liable with respect to any of the terms,
covenants and conditions of this Lease.
43. 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 arc 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."
44. ENVIRONMENTAL COMPLIANCE.
a. 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 Environment Laws (as defined below), except those
substances properly permitted for by all governmental agencies.
b. Tenant shall give prompt notice to Landlord of (i) any proceeding or
inquiring 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.
10
c. Tenant shall protect, indemnify and hold harmless Landlord, its directors,
officers, employees, agents, successors and assigns 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 Tenants.
d. "Environmental Laws" shall mean any federal, state or local law, statute,
ordinance or regulation pertaining to health, industrial hygiene, or
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.
Sections 9601 et seq. and the Resource Conservation and Recovery Act of
1976, as amended from time to time ("RCRA"), 42 U.S.C. Sections 6901 et
seq.
The term "Hazardous Substance's shall include without limitation: (i) those
substances included within the definitions of "hazardous substances,"
"hazardous materials," "toxic substances," or "solid waste" in CERCLA,
RCRA, and the Hazardous Materials Transportation, Act, 49 U.S.C. Sections
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 CER 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); (vi) such other substances, materials and wastes
which are or become regulated under applicable local, state or federal law,
or which arc - 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 biphenyl, (4) designed
as a "hazardous substance" pursuant to Section 311 of the Clean Water Act,
33 U. S. C. Sections 1251 et seq., or listed pursuant to Section 307 of the
Clean Water Act, (5) flammable explosive, or (6) radioactive materials.
e. Landlord shall have the right to inspect the Property and audit Tenant's
operations thereon to ascertain Tenants 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 the 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.
f. All of the terms and provisions of the Section shall survive expiration or
termination of this Lease for any reason whatsoever.
45. AMERICANS WITH DISABILITIES ACT OF 1990 ("ADA"). Within five (5) days after
receipt, Tenant shall advise Landlord in writing, and provide Landlord with
copies of (as applicable), any notices alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of the Premises; any
claims made or threatened in writing regarding noncompliance with the ADA and
relating to any portion of the Premises; or any governmental, or regulatory
actions or investigations instituted or threatened regarding noncompliance with
the ADA and relating to any portion or the Premises.
11
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.
NEITHER LANDLORD NOR TENANT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LEGATION PROCEEDING BASED UPON OR ARISING OUT OF THIS
LEASE, ANY RELATED AGREEMENT OR INSTRUMENT OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN LANDLORD AND TENANT. NEITHER LANDLORD NOR TENANT WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.
THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY TENANT AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER LANDLORD NOR TENANT HAS IN
ANY WAY AGREED WITH OR REPRESENTED THAT THE PARAGRAPH WILL NOT BE FULLY ENFORCED
IN ALL INSTANCES.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
Signed, sealed and delivered LANDLORD:
in the presence of:
XXXXXXXXXX PROPERTIES, INC.
/s/ Signature Illegible By: /s/ Signature Illegible
----------------------- --------------------------
/s/ Signature Illegible Date: 8/10/98
----------------------- -------------------------
XXXXXXX:
By: /s/ G. Xxxxxxx Xxxxx, President/Director
----------------------------------------
G. Xxxxxxx Xxxxx, President/Director
--------------------------------------
Its:
---------------------------------------
Date: 8/8/98
---------------------------------------
12
EXHIBIT "A"
0000 XXXXXXXX XXXX
XX. XXXXXXXXXX, XXXXXXX
XXXXX 0
XXXXX 0X
XXXXX 0X
XXXXX 0X
XXXXX 0X
00
NOTICE TO
OWNERS, PROSPECTIVE TENANTS AND BUYERS OF REAL PROPERTY
REGARDING THE "AMERICAN WITH DISABILITIES ACT"
Please be advised that an owner or tenant of real Property may be subject to the
Americans with Disabilities Act (the ADA), a Federal law codified at 42 USC
Section 12101 et seq. Among other requirements of the ADA that could apply to
your property, Title III of the ADA requires owners and tenants of "public
accommodations" to remove barriers to allow access by disabled persons and
provide auxiliary aids and services for hearing, vision or speech impaired
persons by January 26, 1992. The regulations under Title III of the ADA are
codified at 28 CFR Part 36.
We recommend that you and your attorney review the ADA and the regulations, and,
if appropriate, your proposed lease or purchase agreement, to determine if this
law could apply to you, and the nature of the requirements. These are legal
issues. You are responsible for conducting your own independent investigation of
these issues. Fox and Associates, Inc. cannot give you legal advice on these
issues.
Please acknowledge your receipt of this notice by signing and dating it below.
Received on: 8-8, 1998
Signature: /s/ G. Xxxxxxx Xxxxx
--------------------
Printed Name G. Xxxxxxx Xxxxx
--------------------
14
