EXHIBIT 10.13
COMMERCIAL OFFICE LEASE
BETWEEN
CENTERPOINTE PROPERTY, LLC
AND
NATIONAL HEALTH PARTNERS, INC.
Premises designated as Suite No. 501
Situated on Floor(s) No. 5
FOR TENANCY AT
CENTERPOINTE OFFICE BUILDING
Sarasota, Florida
TABLE OF CONTENTS
Page
1. DEFINITIONS AND TERMS....................................................................................1
2. PREMISES.................................................................................................2
3. TERM.....................................................................................................3
4. RENT.....................................................................................................4
5. TENANT'S SHARE OF EXPENSES...............................................................................5
6. SECURITY DEPOSIT.........................................................................................7
7. ADDITIONS AND ALTERATIONS................................................................................7
8. PERMITTED USE............................................................................................9
9. UTILITIES...............................................................................................10
10. INDEMNIFICATION; INSURANCE..............................................................................11
11. ASSIGNMENT OR SUBLETTING................................................................................13
12. SIGNS; ADVERTISING......................................................................................14
13. MAINTENANCE OF INTERIOR OF PREMISES.....................................................................14
14. DAMAGE OR DESTRUCTION...................................................................................14
15. DEFAULT.................................................................................................15
16. REMEDIES................................................................................................16
17. LANDLORD'S RIGHT OF ENTRY...............................................................................18
18. NOTICES.................................................................................................18
19. TAXES ON TENANT'S PERSONAL PROPERTY AND TAXES ASSESSED AGAINST RENTALS..................................18
20. ATTORNEY'S FEES AND COSTS OF COLLECTION.................................................................19
21. PRIOR AGREEMENTS........................................................................................19
22. FLOOR PLANS.............................................................................................19
23. NO AUTOMATIC RENEWAL....................................................................................19
24. CONDITIONS OF PREMISES; NO WARRANTIES...................................................................20
25. TERMS, HEADINGS AND JURISDICTION........................................................................20
26. CONDEMNATION............................................................................................20
27. SUBORDINATION TO MORTGAGES..............................................................................20
28. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS..........................................................21
29. QUIET ENJOYMENT.........................................................................................21
30. PARKING SPACES..........................................................................................22
31. LANDLORD'S RIGHT TO ALTER COMMON AREAS..................................................................22
32. EXCULPATION.............................................................................................22
33. SUCCESSORS AND ASSIGNS..................................................................................22
34. BUILDOUT ALLOWANCE......................................................................................22
35. REAL ESTATE COMMISSIONS.................................................................................22
36. RADON AND HAZARDOUS WASTE...............................................................................23
37. COMPLIANCE WITH LAWS INCLUDING THE AMERICANS WITH DISABILITIES ACT......................................23
38. BUILDING RULES AND REGULATIONS..........................................................................23
39. PERFORMANCE.............................................................................................24
40. SHORT FORM OF LEASE.....................................................................................24
41. RIGHT TO RELOCATE TENANT................................................................................24
EXHIBIT A: FLOOR PLAN OF PREMISES
EXHIBIT B: BUILDING RULES AND REGULATIONS
EXHIBIT C: SHORT FORM LEASE
EXHIBIT D: BUILDOUT ALLOWANCE
EXHIBIT E: LANDLORD'S WORK
GUARANTY
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______________________________________
SARASOTA, FLORIDA
COMMERCIAL LEASE AGREEMENT
THIS LEASE ("Lease") is entered into the 13th day of June, 2005 between
CENTERPOINTE PROPERTY, LLC, as the authorized agent for PMW HOSPITALITY, LLC and
RFW HOSPITALITY, LLC, hereinafter referred to as the "Landlord", and NATIONAL
HEALTH PARTNERS, INC, hereinafter referred to as the "Tenant";
WITNESSETH:
As mutual consideration for entering into this Lease the Landlord and
Tenant agree to the following covenants, terms and conditions:
1. DEFINITIONS AND TERMS
As Used in this Lease Agreement, the terms enumerated below as items
1.1 to 1.21 inclusive shall have only the meaning set forth in this
section unless expressly modified, limited or expanded elsewhere in the
Lease, in which event, such modification, limitation and/or expansion
shall supersede the meaning set forth below:
1.1 EXHIBITS: The following Exhibits attached to this Lease are
incorporated herein and made a part hereof:
Exhibit A: Floor Plan of Premises
Exhibit B: Building Rules and Regulations
Exhibit C: Short Form of Lease
Exhibit D: Buildout Allowance
Exhibit E: Landlord's Work
1.2 BUILDING: Centerpointe Office Building located at 2033 Main
Street, Sarasota, Florida 34237, containing approximately
97,207 rentable square feet.
1.3 PREMISES: Suite 501, see 1.12 Rentable Area of Premises.
1.4 TERM: The Term of this Lease commences on the Commencement
Date and expires on the Termination Date unless terminated
sooner or extended as provided in this Lease.
1.5 COMMENCEMENT DATE: July 1, 2005
1.6 TERMINATION DATE: June 30, 2010
1.7 ANNUAL BASE RENT: $13.02 per rentable square foot, plus
applicable taxes
1.8 INITIAL MONTHLY BASE RENT: $4328.07, plus applicable taxes
1.9 INITIAL ANNUAL CAM CHARGE: $ 9.68 per rentable square
foot, plus applicable taxes.
1.10 INITIAL MONTHLY CAM CHARGE: $3217.79, plus applicable taxes
1.11 INITIAL MONTHLY RENT (BASE RENT AND CAM CHARGE): $ 7545.86
plus applicable taxes
1.12 RENTABLE AREA OF PREMISES: 3989 square feet.
1.13 TENANT'S PROPORTIONATE SHARE ("PROPORTIONATE SHARE"): 4.10 %
1.14 SECURITY DEPOSIT: $ 18,000 - to be paid to landlord no later
than October 1, 2005.
1.15 PERMITTED USE: General Office
1.16 TENANT'S ADDRESS: 2033 Main Street, Suite 501
Sarasota, Florida 34237
1.17 LANDLORD'S ADDRESS: Centerpointe Property, LLC
2033 Main St, Suite 405
Sarasota, Florida 34237
1.18 GUARANTOR: N/A
1.19 OPTIONS TO RENEW: 1-5 year option to renew with 120 days
written notice provided to Landlord.
1.20 PARKING: Tenant is allocated ten (10) parking space(s) in the
attached parking garage at the rate of $35.00 per space, per
month plus applicable sales tax for the first year of the
initial term. Parking rate to be increased annually at the
rate of four percent (4%) per space per month, plus applicable
taxes.
1.21 PROPERTY: The real property commonly known as 2033 Main
Street, Sarasota, Florida 34237.
2. PREMISES
2.1 AGREEMENT TO LEASE: Landlord leases the Premises to the Tenant
and Tenant leases the Premises from the Landlord for the Term
of this Lease.
2.2 EXCEPTIONS: Tenant acknowledges that this lease is subject to
all existing liens, encumbrances, deeds of trust,
reservations, restrictions and other matters of record and to
zoning, building and fire ordinances and all governmental
statutes, rules and regulations relating to the use or
occupancy of the Premises, as they may hereafter be amended
from time to time.
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3. TERM
3.1 INITIAL TERM: The initial Term of this lease shall commence on
the Commencement Date and shall terminate on the Termination
Date, unless terminated sooner in accordance with the terms of
this Lease. As used herein, Term shall include any renewal
term for which Tenant duly exercises its option to renew in
accordance with Section 3.4 below.
3.2 EARLY COMMENCEMENT: Notwithstanding the Commencement Date, the
Term shall commence earlier than the Commencement Date if
Tenant occupies the Premises prior to the stated Commencement
Date. "Occupancy", "occupy" or "occupies" as used in this
lease shall mean use of the Premises for any reason by Tenant
or Tenant's agents, licensees, employees, directors, officers,
partners, trustees, and invitees (collectively, "Tenant's
Agents").
3.3 DELAYED COMMENCEMENT: Landlord shall deliver possession of the
Premises to Tenant on or within 30 days of the Commencement
Date. If Landlord, through no fault of Tenant, cannot deliver
possession of the Premises to Tenant on the Commencement Date,
such delay shall not affect the validity of this Lease, nor
shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, but there shall be a proportionate
reduction of rent covering the period between the Commencement
Date and the time when Landlord delivers possession of the
Premises to Tenant.
3.4 OPTION TO RENEW: Tenant shall have the option, exercisable by
written notice to Landlord, sent by certified mail or
recognized overnight mail delivery service, and received by
Landlord not later than one hundred twenty (120) days prior to
the expiration of the initial Term and/or any exercised
renewal term, to extend the Lease, for the renewal term(s) set
forth in Section 1.19 on the same terms and conditions as
provided in the Lease, except that;
a. Landlord shall have no obligations to make any
improvements to the Premises; and
b. There shall be no option to further extend the Term.
Notwithstanding the foregoing, the option to renew the lease
shall be deemed null and void if one more of the following has
occurred:
a. Tenant has been late in the payment of rent on three
(3) or more occasions within any twelve (12) month
period. For this purpose, a payment shall be deemed
to be late if it is received by Landlord after the
fifth day of the month in which such rent is due.
b. Tenant is or has been in default in the performance
of any of its other obligations under the Lease.
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c. Tenant has failed to give written notice by certified
or overnight mail to Landlord one hundred twenty
(120) days prior to the expiration of the Initial
Term, or any subsequent renewal term.
d. The Lease has been assigned.
4. RENT
4.1 RENT DETERMINATION: Tenant agrees to pay to Landlord each year
during the Term (as the Term may be adjusted pursuant to
Section 3.2 or 3.3) the Annual Rent (Annual Base Rent plus
applicable CAM charges) for the Premises. Annual Rent shall be
paid in monthly installments in advance, on or before the
first day of each calendar month during the Term; provided
that Tenant shall pay to the Landlord prior to Commencement
Date the prorated Monthly Rent attributable to the month in
which the Commencement Date occurs if other than the first day
of a month. The Monthly Rent shall include Florida State Sales
Tax thereon and any other tax applicable to said Monthly Rent.
Concurrently with the execution of this Lease, Tenant shall
pay to Landlord the Monthly Rent for the first month's rent.
All rent payable by Tenant to Landlord under this Lease shall
be paid to Landlord in lawful money of the United States of
America at Landlord's address on Page 1 herein, or to any
other person or at any place Landlord may designate in
writing. Unless otherwise specified, the term "rent" or "Rent"
as used in this Lease shall include Base Rent plus CAM charges
(as described in Section 5.1 below), and any other additional
rent payable hereunder, plus all applicable taxes. All rent
shall be paid without prior demand, deduction, setoff or
counterclaim.
4.2 ADDITIONAL SERVICES: Tenant agrees to pay to Landlord as
additional rent upon demand (but not more frequently than
monthly) all charges for any services, goods or materials
furnished by Landlord at Tenant's written request which are
not required to be furnished by Landlord under this Lease
without separate charge or reimbursement. Such charges are due
and payable in full, upon demand after the services, goods, or
materials are furnished.
4.3 PRORATIONS: Any rent for any fractional month shall be
prorated based on a thirty (30) day month, and for any
fractional year shall be prorated based on a three hundred
sixty (360) day year.
4.4 ANNUAL RENT INCREASE: The Monthly Base Rent shall be increased
beginning on the first anniversary of the Commencement Date
and on each anniversary thereafter by a sum equal to 4% of the
Monthly Base Rent for the last month of the previous year or
the increase in the CPI Index during the prior year, whichever
is greater. "CPI Index" means the "Consumer Price Index for
Urban Wage Earners and Clerical Workers, Revised Series, CPI-W
(all items 1982-1984=100) published by the Bureau of Labor
Statistics, United States Department of Labor, or any
successor to such agency for the standard metropolitan
statistical area in which the Premises are located. If the CPI
Index shall cease to be published, Landlord shall replace it
for purposes of this Lease with a reasonable substitute index.
If the CPI Index shall be reconstituted or the basis for its
calculation shall be changed, then the new index shall be
employed under this Lease.
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4.5 SALES TAX: Tenant shall pay to Landlord concurrently with the
payment of the Monthly Rent, any additional rent and other
sums, all Florida State sales tax and any other tax which is
applicable to such payment.
4.6 NO SET-OFF: Tenant waives all rights (whether statutory or
otherwise) to make repairs at the expense of Landlord, to cure
any alleged defaults by Landlord at the expense of Landlord,
or to deduct the cost thereof from rent or other sums due
Landlord hereunder.
4.7 LATE PAYMENT PENALTY: A late payment penalty shall be added to
any rent not received by Landlord within ten (10) days of the
due date. Such penalty shall be five percent (5%) of the
monthly rent or additional rent due.
4.8 LATE PAYMENT INTEREST: If any installment of Monthly Rent,
additional rent or other amount due hereunder is not paid
within ten (10) days after it is due, then such payment shall
bear interest at the lower rate of either eighteen percent
(18%) per annum or the maximum rate permitted by law, from the
date on which it was due until the date on which it is paid,
regardless of whether any notice has been given by Landlord to
Tenant. This provision shall not relieve Tenant from payment
of any Monthly Rent, additional rent or other amounts due
hereunder at the time and in the manner herein specified nor
waive any other right or remedy of Landlord hereunder.
4.9 ACCEPTANCE OF LATE PAYMENTS: The receipt and acceptance by
Landlord of delinquent Rent shall not constitute a waiver of
any other default. No payment by Tenant or receipt by Landlord
of a lesser amount than the Monthly Rent, Additional Rent or
other sums due shall be deemed to be other than on account of
the earliest stipulated amounts so due, nor shall any
endorsement or statement on any check or any letter or other
writing accompanying any check or payment as rent be deemed in
accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's rights to recover the
balance of such rent or to pursue any other right or remedy
provided herein or at law or in equity.
5. TENANT'S SHARE OF EXPENSES
5.1 ADDITIONAL RENT: Tenant shall pay, as additional rent
hereunder, Tenant's Proportionate Share of CAM costs (as
defined in 5.3 below) in monthly installments during the term
of this Lease. The initial estimated CAM cost is set forth in
Section 1.9 of this Lease. Tenant's share of the CAM costs
shall be an amount equal to the product obtained by
multiplying the total CAM costs paid or incurred by Landlord
during the year by Tenant's Proportionate Share. As soon as
practicable after December 31st of each year, Landlord shall
estimate the total of CAM costs for the succeeding year
("Calculation Period") and Tenant agrees to pay one twelfth
(1/12th) of Tenant's Proportionate Share thereof, together
with applicable tax thereon, concurrently with each monthly
rental payment. As soon as practicable after the end of each
Calculation Period, Landlord shall furnish to Tenant a
statement of Tenant's Proportionate Share of each year's
actual CAM costs. In the event that the actual CAM costs
exceed Landlord's estimate for that year, Tenant shall pay
Landlord such excess within 30 days of receipt of the
statement of actual CAM costs. In the event that the actual
CAM costs are less than the estimated CAM costs and Tenant has
paid all CAM costs installments, then Tenant shall be given a
credit for such overpayment applicable to the next year's CAM
charges.
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5.2 COMMON AREAS: The term "Common Areas" (as initially
constructed or as the same may at any time thereafter be
enlarged or reduced) shall mean all areas from time to time
made available by Landlord for the common and joint use and
benefit of Landlord, Tenant and other tenants and occupants of
the Building, and their respective employees, agents,
subtenants, licensees, customers and other invitees, which may
include as applicable (but shall not be deemed a
representation as to their availability) the sidewalks,
parking areas, driveways, landscaped areas, hallways,
stairways, lobbies, restrooms, courts, ramps, elevators,
electrical, sanitary, sewer and waterlines and facilities,
roof, foundation, and all other portions of the Premises and
the Property which is not otherwise maintained by Tenant. The
Landlord shall maintain and operate the Common Areas in a
manner consistent with the maintenance and operation of
similar office buildings within the community wherein the
Premises are located Landlord grants Tenant and its agents and
invitees a nonexclusive right to use, in common with others,
the Common Areas during the Term. Tenant's use of the Common
Areas is subject to whatever rules Landlord may establish from
time to time.
5.3 COMMON AREA MAINTENANCE AND OPERATING EXPENSES: Common Area
Maintenance and Operating Expense costs (referred to herein as
"CAM") shall mean the cost of electrical and water/sewer
service to the Building, including the Premises and other
tenant premises.
5.4 CAPITAL IMPROVEMENTS: N/A
5.5 LIMITATION OF LANDLORD LIABILITY: Landlord shall have no
liability to Tenant on account of any temporary failure,
modification or interruption of any service to the Building or
Premises which arises out of any act of God, which is required
by applicable law or is otherwise beyond Landlord's reasonable
control.
5.6 INSPECTION OF BOOKS: Tenant shall have the right, at Tenant's
sole expense, upon reasonable prior notice to Landlord and no
more often than once per year, to perform an audit of the CAM
costs for the preceding calendar year as well as the
calculations of Tenant's Proportionate Share thereof unless
Landlord has provided Tenant with an audited statement of such
expenses prepared by a certified public accountant.
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5.7 PRORATION: If this Lease shall commence on any day other than
the first day of the month or terminate on a day other than
the last day of the month, the amount of any additional rent
payable by Tenant for the month in which this lease commences
or terminates shall be prorated and payable in advance of that
prorated period.
6. SECURITY DEPOSIT
The Security Deposit specified in paragraph 1.14 shall be held by
Landlord as security for the full and faithful performance by Tenant of
each and every term, covenant and condition of this Lease on the part
of Tenant to be observed and performed, and Landlord shall have no
liability to pay interest thereon unless required by law. If any rent
or Additional Rent herein reserved or any other sums payable by Tenant
hereunder shall be overdue and unpaid or should Landlord make payments
on behalf of Tenant, or should Tenant fail to perform any of the terms
of this Lease, then Landlord may, at its option, and without prejudice
to any other remedy which Landlord may have on account thereof, apply
the Security Deposit or so much thereof as may be necessary to
compensate Landlord toward the payment of the rents or other sums due
from Tenant, or towards any loss, damage or expense sustained by
Landlord resulting from such default on the part of Tenant; and in such
event Tenant shall forthwith upon demand restore the Security Deposit
to its original amount, and the sum required to so restore the Security
Deposit shall be Additional Rent hereunder. In the event Tenant shall
have fully and faithfully complied with all of the terms, covenants and
conditions of this Lease, the Security Deposit shall be returned in
full to Tenant within thirty (30) days following the end of the Term or
earlier termination of this Lease. In the event that any bankruptcy,
insolvency, reorganization or other creditor/debtor proceedings shall
be instituted by or against Tenant or its successors or assigns,
Landlord may apply the Security Deposit first to the payment of any
rent, Additional Rent, and other amounts due Landlord hereunder, and
the balance, if any, of the Security Deposit may be retained by
Landlord in partial Liquidation of Landlord's damages. Landlord may
deliver the Security Deposit to the purchaser of Landlord's interest in
the Premises, in the event that such interest is sold, and Landlord
shall thereupon be discharged from any further liability with respect
to the Security Deposit.
7. ADDITIONS AND ALTERATIONS
7.1 ADDITIONS AND ALTERATIONS BY TENANT: No changes, alterations,
improvements or additions shall be made to the Premises or any
part thereof without first obtaining the written consent of
the Landlord. All changes, alterations, additions and
improvements made or placed in or upon the Premises by the
Tenant and which by operation of law would become a part of
the real estate, shall immediately upon being made or placed
thereon become the property of the Landlord and shall remain
upon and be surrendered with the Premises as a part thereof,
at the termination by lapse of time or otherwise, of the Term
herein granted provided, however, that, if Landlord so
requests in writing not later than 30 days prior to the
expiration of the Term, Tenant shall remove all or any part of
the improvements it made to the Premises and repair any damage
caused by the removal. Any such changes, alterations,
improvements, or additions shall be done in a good and
workmanlike manner, in conformity with any applicable
governmental laws, ordinances and regulations and any criteria
as set forth herein and with the prior written consent of the
Landlord, not to be unreasonably withheld.
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7.2 EQUIPMENT AND TRADE FIXTURES: Tenant may install or affix to
the Premises such equipment and trade fixtures as are
reasonably necessary for the conduct of Tenant's business
operations therein with Landlord's prior written consent; and,
upon termination of this lease for any reason other than
Tenants default, Tenant may remove the same provided that,
after such removal, Tenant restores the Premises at Tenants
expense to the same condition as existed prior to the
installation of such equipment or fixtures. It is understood
and agreed, however, that any floor and wall coverings or
other appurtenances attached to the floor or any part of the
Premises by Tenant shall at the termination of this lease or
any renewal hereof, remain the property of Landlord and shall
not be removed unless Landlord requests Tenant to remove the
same. Tenant shall promptly pay and discharge and shall
indemnify and hold landlord harmless of and from, all tangible
personal property taxes and assessments now or hereafter
taxed, assessed, imposed, or levied by any lawful authority
against or upon any trade fixtures, equipment, or personal
property located in the Premises during the Term of this
lease.
7.3 NO LIENS: Landlord's interest in the Premises shall not be
subject to liens for improvements made by Tenant. Tenant shall
notify all contractors making Tenant improvements of this
provision.
a. Tenant agrees that it shall not enter into any
contract for Tenant's Improvements unless the
following language is included in such contract:
"Notwithstanding anything herein contained to the
contrary, the contractor acknowledges that (Tenant)
holds only a leasehold interest in the property which
is the subject of this contract. (Tenant) is not the
agent of the owner of the property, and no lien
resulting from work performed under this contract
shall attach to the interest of such owner."
b. Tenant agrees that it will not permit any worn to be
commenced until such time as Tenant has provided
Landlord with a fully executed copy of the
construction contract evidencing incorporation of the
aforesaid language. In addition, prior to
commencement of the work, Tenant shall post the
following notice in a conspicuous place on the leased
premises, and shall assure that such notice is
maintained throughout the entire course of
construction:
"NOTICE TO CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN
AND LABORERS"
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Notice is hereby given that work on these premises is
being performed for (Tenant). (Tenant) is not the
agent of the owner of this property, and any lien
rights shall in no event attach to the interest of
the owner."
c. If, for whatever reason, any mechanic's or other lien
shall be filed against the premises, purporting to be
for labor or material furnished or to be furnished at
the request of Tenant, then Tenant shall, at its
expense, cause such lien to be discharged of record
by payment, bond or otherwise as allowed by law,
within ten (10) days after the filing thereof. If
Tenant shall fail to cause such lien to be discharged
of record within such ten (10) day period, Landlord,
in addition to any other rights and remedies, may,
but shall not be obligated to, cause such lien to be
discharged by payment, bond or otherwise, without
investigation as to the validity thereof or as to any
offsets or defenses thereto, and Tenant shall, upon
demand, promptly within ten (10) days, reimburse
Landlord for all amounts paid and costs incurred,
including attorneys' fees and interest thereon at the
maximum legal rate from the respective dates of
Landlord's payments therefor, in having such lien
discharged of record, and, further, Tenant also shall
otherwise indemnify, protect, defend and save
Landlord harmless from any claims, actions or damage
resulting therefrom.
d. The Landlord may require the Tenant and/or the
Tenant's contractor to post or deposit a performance
bond, a payment bond or other form of security to
ensure the timely and full completion of any
improvements to the Premises undertaken by Tenant,
the removal of any construction or other liens and
the timely and full payment of all costs and expenses
thereof.
e. The Tenant shall indemnify and hold the Landlord
harmless against all claims, actions, judgments,
damages, liabilities, payments, liens, costs and
expenses, including, but not limited to actual
attorney's fees, legal assistant fees and paralegal
fees and costs that the Landlord may suffer or Incur
and that result, directly or indirectly, from the
design or construction of the Tenant's Improvements.
f. Prior to commencement of the construction of any of
the Tenant's improvements, the Tenant's general
contractor shall secure Builders Risk Insurance (Fire
with Extended Coverage and Vandalism Endorsement) on
a Completed Value Form with Landlord and Tenant as
named insureds, in an amount not less than 100% of
the value of the work.
8. PERMITTED USE
8.1 PERMITTED USES: The Premises shall be used only for the
Permitted Use and for no other purpose. The Tenant, shall, at
its own cost and expense, obtain any and all licenses and
permits necessary for such use. The Tenant shall comply with
all governmental laws, ordinances and regulations applicable
from time to time to its use of the Premises, and shall
promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in
or upon, or connected with the Premises, all at the Tenant's
sole expense.
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8.2 USES NOT PERMITTED: Notwithstanding anything herein to the
contrary, Tenant shall not use the Premises, nor permit the
Premises to be used, for any of the following purposes: retail
securities brokerage; or a banking, trust company or savings
and loan business. The Tenant shall comply with the Building
Rules and Regulations attached as Exhibit B which are
incorporated herein and shall not do, suffer or permit
anything to be done in, on or about the Premises or the
Property, nor bring, nor keep anything therein which will in
any way affect fire or other insurance upon the Building or
any of its contents or which will in anyway conflict with any
law, ordinance, rule or regulation now or hereafter in force
or effect relating to the occupancy and use of the Premises or
the Property. Tenant shall not in any way obstruct or
interfere with the rights of other tenants or users of the
Property, or injure or annoy them, nor use, nor allow the
Premises or the Building to be used for any improper, immoral,
unlawful or objectionable purpose.
8.3 MACHINERY OPERATION: The Tenant will not, without the written
consent of the Landlord, use any apparatus, machinery,
equipment or devices in, on or about the Premises which may
cause, alone or in the aggregate, any excessive noise or may
set up any excessive vibration or excessive floor loads or
which in any way would increase the normal amount of
electricity agreed to be furnished or supplied under this
Lease, or as specified in the Building Standards Criteria, and
further, the Tenant shall not connect with water any
apparatus, machinery, equipment or device without the prior
written consent of the Landlord. The Tenant shall, at the
Tenants sole cost and expense, comply with all requirements of
municipal, state and federal authorities now or hereafter in
force, pertaining to said Premises, and shall faithfully
observe in the use of said Premises and Property such laws,
ordinances, regulations and other requirements now or
hereafter in force and effect
8.4 CHANGE IN LAW: Any change in law or otherwise which may make
Tenant's use of the Premises impracticable or impossible shall
not affect Tenant's obligations under this Lease
9. UTILITIES
9.1 GENERAL: Subject to Tenant's obligation to pay its
Proportionate Share of CAM expenses and perform Tenant's other
obligations, the Landlord agrees to furnish in connection with
the Premises: electricity for lights and other usual and
ordinary office purposes (commensurate with the Landlord's
electrical system and wiring in the Building of which the
Premises are a part, supplying approximately 120 volts) and
for heat and air conditioning, subject to government authority
regulations from time to time in effect, during normal
business hours; (8 A.M. to 6 P.M. Monday through Friday,
except holidays and from 8 A.M. to 1 P.M. on Saturdays);
janitorial services In the Common Areas as specified in the
Building Standards Criteria; and provide for use in common
with Landlord and other tenants of the elevators and other
like facilities of the Building. Landlord reserves the right
to establish special charges to be paid by Tenant for
additional non-standard services provided.
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9.2 ELECTRICAL SERVICE: If, in Landlord's reasonable judgment,
Tenant is using electrical service in a disproportionate
amount, for example, because of high electricity consumption
installations (other than the types and quantities of
equipment normally used in general office settings) or because
of use during nonbusiness hours, Landlord shall directly
charge Tenant for such excess use and exclude those charges
from CAM.
9.3 NO LANDLORD LIABILITY: The Landlord shall not be liable for
the failure to furnish any of the items or services herein
mentioned when such failure is caused by or results from
accidents, conditions or matters beyond the reasonable ability
of the Landlord to control, or caused by or resulting from
lack of utility services, breakdown of mechanical equipment,
repairs, labor disturbances, or labor disputes of any
character, whether resulting from or caused by acts of the
Landlord or otherwise, nor shall the Landlord be liable under
any circumstances for loss of or injury to property or
persons, however occurring, through or in connection with or
incidental to the furnishing of any such items or services,
nor shall any such failure relieve the Tenant from the duty to
pay the full amount of rent and other amounts herein provided
to be paid by the Tenant, or constitute or be construed as a
constructive or other eviction of the Tenant.
10. INDEMNIFICATION; INSURANCE
10.1 INDEMNIFICATION BY TENANT: Tenant does hereby indemnify and
agree to hold Landlord and Landlord's agents, contractors,
licensees, employees, directors, officers, partners, trustees
and invitees (collectively, "Landlord's Agents") harmless from
and against any and all damages, claims, losses, demands,
costs, expenses (including actual attorneys' fees and costs),
obligations, liens, liabilities, actions and causes of action,
threatened or actual, for bodily injury or property damage
which Landlord may suffer or incur arising out of or in
connection with this Lease, or Tenant's business, or any
activity, work or things done, permitted or suffered by Tenant
or Tenant's agents, contractors, licensees, employees,
directors, officers, partners, guests and invitees
(collectively, "Tenant's Agents") in or about the Premises or
the Property, Tenant's or Tenant's Agents' nonobservance or
non performance of any statute, law, ordinance, rule or
regulation, any negligence of the Tenant or Tenant's Agents,
or any other event on the Premises, whatever the cause.
Tenant's indemnification does not extend to liability for
damages resulting from the sole or gross negligence of
Landlord or for Landlord's intentional misconduct.
Tenant further agrees that if, in case of any claim, demand,
action or cause of action, threatened or actual, against
Landlord, as a result of action or inaction by Tenant or
Tenant's Agents, and Tenant does not provide a defense against
any and all such claims, demands, actions or causes of action
threatened or actual, the Tenant will, in addition to the
above, pay Landlord the actual attorney's fees, other legal
expenses and costs incurred by Landlord in providing or
preparing such defense, and Tenant agrees to cooperate with
Landlord in such defense, including, but not limited to, the
providing of affidavits and testimony upon request of
Landlord.
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10.2 INSURANCE:
a. Tenant shall, at Tenant's expense, obtain and keep in force
during the term of this Lease a policy of commercial general
liability insurance insuring Landlord and Tenant against any
liability arising out of Tenant's use, occupancy or
maintenance of the Premises and all Common Areas with a
combined single limit per occurrence of $1,000,000 exclusive
of defense costs and any deductible or self-insured retention,
or such other limits as Landlord may from time to time
reasonably require. The limit of such insurance shall not,
however, limit the liability of the Tenant hereunder. If
Tenant shall fail to procure and maintain such insurance,
Landlord may, but shall not be required to, procure and
maintain same, but at the expense of Tenant.
b. Tenant shall maintain a policy of insurance against risk of
loss from any cause whatsoever to all of its personal property
upon the Premises, to the full extent of replacement cost,
which policy of insurance shall contain a standard waiver of
subrogation clause or endorsement. Upon request, Tenant shall
provide evidence of its insurance coverage.
c. All insurance required hereunder shall be with companies
approved by Landlord, which approval shall not be unreasonably
withheld. Tenant shall deliver to Landlord, prior to occupancy
of the Premises, copies of any policy of liability insurance
required herein or certificates evidencing the existence and
amounts of such insurance with Landlord named as an additional
insured, and thereafter shall deliver any replacement policies
to Landlord prior to expiration of the current policy. No
policy shall be cancelable or subject to reduction of coverage
except after 30 days prior written notice to Landlord. If any
policy that Tenant is required to maintain is written on a
claims-made Insurance form, each policy must have a
retroactive date that is not later than the Commencement Date.
Furthermore, if insurance coverage is written on a claims-made
basis, Tenant's obligation to provide insurance will be
extended for an additional period equal to the statute of
limitations for such claims plus one year. Insurance may be
provided in the form of blanket insurance policies covering
properties in addition to the Premises or entities in addition
to Tenant. All blanket policies must provide that the overall
aggregate limit of liability that applies to Landlord or the
Premises is independent from any overall or annual aggregate
that applies to other entities or properties.
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10.3 ASSUMPTION OF RISK: 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
Premises from any cause, and Tenant hereby waives all claims
in respect thereof against Landlord. Landlord and Landlord's
Agents shall not be liable for any damage to property
entrusted to Landlord or Landlord's Agents, from any cause
whatsoever, unless caused by or due to the gross negligence of
Landlord or Landlord's Agents or Employees. Landlord and
Landlord's Agents shall not be liable for any latent defect in
the Premises or in the Building.
10.4 NOTICE TO LANDLORD: Tenant shall give prompt notice to
Landlord in case of fire or accidents, or needed repair in the
Premises or, if known by the Tenant, in other parts of the
Building.
10.5 CHATTEL PLEDGE: Tenant hereby pledges and assigns the Landlord
all furniture and fixtures, goods and chattels of the Tenant,
which may be brought or put on the Premises, as security for
the payment of Rent herein reserved, and agrees that the
Landlord's lien for the payment of Rent may be enforced by
distress, foreclosure or otherwise, at the option of the
Landlord, and Tenant agrees that such lien is granted to the
Landlord and vested in Landlord, and the Tenant further agrees
that in case of the failure of Tenant to pay the Rent herein
when the same shall become due, and it becomes necessary for
the Landlord to collect Rent by suit or through an attorney,
or should Landlord employ an attorney because of the breach of
any of the terms, covenants or agreements contained in this
lease, the Tenant will pay the Landlord its actual attorney's
fee together with all costs and charges incurred by, through
or in connection with such collection or in any other suit or
action or appeal which may be brought in any court because of
a breach of any terms, covenants or agreements contained in
this Lease.
10.6 MUTUAL WAIVER OF SUBROGATION: Landlord and Tenant hereby
mutually release and waive their respective rights of recovery
and subrogation against each other for any loss insured by
fire, extended coverage and other property insurance policies
existing for the benefit of the respective parties to the
extent such waiver is permitted by such policies or insurance
carriers. If either party fails to obtain insurance required
hereunder, it bears the full risk of its own loss.
11. ASSIGNMENT OR SUBLETTING
11.1 TENANT: The Tenant shall not sell, assign, transfer, mortgage,
hypothecate or otherwise encumber this Lease or the leasehold
interest granted hereby, or any other interest therein, or
permit the use of the Premises or any part thereof by any
person or persons other than the Tenant and Tenant's Agents
and business invitees, or sublet the Premises, or any part
thereof, without the prior written consent of the Landlord in
Landlord's sole discretion in each such case. Notwithstanding
any such assignment, mortgage, hypothecation, encumbrance or
subletting, the Tenant shall at all times remain fully
responsible and liable for the payment of the rent and
Additional Rent and (or compliance with all of the obligations
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of the Tenant under the terms, provisions and covenants of
this Lease. If Tenant is a corporation, unincorporated
association, trust or general or limited partnership, the
sale, new issue, assignment, transfer or hypothecation of any
stock or other ownership interest of such entity which from
time to time in the aggregate exceeds twenty-five percent
(25%) of such interest shall be deemed an assignment subject
to the provisions of this Section 11.1. If Tenant subleases or
assigns any portion of the Premises and whether or not such
sublease or assignment was consented to, and the rental
exceeds the amount of rent due hereunder, Tenant shall pay to
Landlord one-half (1/2) of all such excess rent as Additional
Rent. In no event shall Tenant be permitted to sublease or
assign any portion of the Premises at a rental amount less
than the amount due under the terms of this Lease. Any act
described in this Section 11.1 which is done without the
consent of the Landlord shall be null and void and shall be an
Event of Default.
11.2 LANDLORD: Landlord shall have the right to sell, transfer or
assign any of its rights and obligations under this Lease.
12. SIGNS; ADVERTISING
The Tenant shall not place or maintain or permit to be placed or
maintained any signs or advertising of any kind whatsoever on the
exterior of the Building (except as may be expressly provided for
herein), or on any exterior windows in the Building, or elsewhere
within the Premises so as to be visible from the public hallways or
other public areas of the Building except such numerals and lettering
on doorways as may be approved and permitted by the Landlord.
13. MAINTENANCE OF INTERIOR OF PREMISES
The Tenant shall take good care of the Premises and shall, at the
Tenant's own cost and expense, keep them in good and sanitary condition
and repair and shall promptly make all repairs to the same to the
satisfaction of the Landlord, and at the end, or earlier termination,
of the Term, shall deliver the Premises to Landlord in the same
condition as received, wear and tear by ordinary use thereof, fire and
other casually excepted. Landlord may, but shall not be obligated to,
make any repairs which are not promptly made by Tenant and charge
Tenant for the cost thereof as Additional Rent.
14. DAMAGE OR DESTRUCTION
If the Building is damaged by fire or other peril not caused in whole
or in part by Tenant, to the extent that the entire Premises are
rendered untenantable and cannot be reasonably rendered in as good a
condition as existed prior to the damage within ninety (90) days from
the date that Landlord secures permits for the reconstruction of the
Premises, the Term of this Lease may be terminated by the Landlord or
the Tenant by giving written notice to the other party; but if such
damage is not such as to permit termination of the Lease as above
provided, then if such damage is not caused by Tenant or Tenants
Agents, employees, or invitees, a proportionate reduction shall be made
in the rent corresponding to the time during which and to the portions
of the Premises of which the Tenant shall hereby be deprived of
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possession. Landlord shall use commercially reasonable efforts to
secure the requisite permits and governmental approvals to reconstruct
the Premises in a timely manner. If Landlord is unable to secure the
requisite permits and governmental approvals within six (6) months of
the date of the damage, then either Landlord or Tenant may elect to
terminate this Lease by giving written notice to the other party. The
Tenant agrees that Landlord shall not be responsible or liable for any
loss due to business interruption occasioned by such fire, casually or
other cause which renders the Premises untenantable nor shall Landlord
be liable for any damage to Tenants property or persons. Tenant may not
terminate this Lease on account of any damage caused by Tenant or
Tenant's agents, employees, guests or invitees.
15. DEFAULT
The following shall constitute "Events of Default" and in any such
events, Tenant shall be deemed to be in default under the terms of this
Lease and shall be subject to Landlord's remedies as set forth herein:
a. Tenants failure to pay, when due, any rent or other
payments due hereunder, including without limitation
Additional Rent, taxes and sales tax or any other
payment due Landlord under any other agreement or
contract between Landlord and Tenant; or
b. Tenant's abandoning or vacating of the Premises
without prior written consent of Landlord, it being
agreed that non-occupation of the Premises for a
period often (10) consecutive days, without written
consent of Landlord, shall be conclusively deemed an
abandonment, notwithstanding anything contained in
Florida Statute Chapter 83 to the contrary; or
c. Tenant's voluntarily petitioning for relief under or
otherwise seeking the benefit of any bankruptcy,
reorganization or insolvency law; or
d. A receiver or trustee being appointed for Tenant or
its property; or
e. The filing of an involuntary bankruptcy, arrangement,
or reorganization petition against Tenant; or
f. Tenants making an assignment for the benefit of
creditors; or
g. Any of the goods, chattels, rights, credits, or
effects of Tenant used in or incident to the
occupation of the Premises being seized, sequestered,
or impounded by virtue of or under the authority of
any legal proceedings; or
h. Tenant's interest under this Lease being sold under
execution or other legal process; or
i. Any act or omission of Tenant which results in the
filing of a lien against the Premises; or
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j. Any transfer, assignment, subletting or encumbering
of Tenant's interest under this Lease or the
Premises, by operation of law or otherwise without
the prior written consent of Landlord, which consent
shall be in the sole and absolute discretion of
Landlord; or
k. Tenant's continued default in the performance or
observance of any of the other covenants or
agreements contained in this Lease and not
specifically set forth above for a period often (10)
days after the date of mailing written notice thereof
by Landlord to Tenant
l. Tenant's repeated violation of any covenant or
agreement contained in this Lease. "Repeated
Violation" shall mean violating any covenant or
agreement for which written notice of violation was
given by Landlord on more than two (2) occasions
within a twelve (12) month period
16. REMEDIES
Landlord may, at its option, in addition to all other remedies provided
by law, exercise anyone or more of the following remedies which are not
mutually exclusive and are consistent with the laws of the State of
Florida:
16.1 ACCELERATION: Declare the entire remaining unpaid rent
(whether monthly, Additional Rent or otherwise) for the
balance of the term of this Lease immediately due and payable
and take action to recover and collect the same either by
distress or otherwise, and/or,
16.2 TERMINATION OF POSSESSION: Terminate Tenant's right to
possession under this Lease and re-enter and take possession
of the Premises, and relet or attempt to relet the Premises,
or any part thereof, on behalf of and as the agent of Tenant,
at such rental and under such terms and conditions as Landlord
may, in the exercise of Landlord's sole and absolute
discretion, deem best under the circumstances for the purpose
of reducing Tenant's liability, and Landlord shall not be
deemed to have thereby accepted a surrender of the Premises,
and Tenant shall remain liable for all Rent, Additional Rent
and all other sums due under this Lease and for all damages
suffered by Landlord because of Tenant's breach of any of the
covenants of this Lease. Landlord shall apply any rent
received from such reletting first to the expenses of
Landlord, if any, incurred by re-entering and placing the
Premises in condition for reletting, and then to the payment
of Rent due hereunder and other obligations of Tenant to
Landlord arising under this Lease. In the event Landlord is
successful in reletting the Premises at a rental rate in
excess of that agreed to be paid by Tenant, Tenant shall not
be entitled, under any circumstances, to such excess rent, and
Tenant does hereby waive any claim to such excess rent. At any
time during such repossession or reletting, Landlord may, by
delivering written notice to Tenant, elect to exercise its
option under the following subparagraph to accept a surrender
of the Premises, terminate and cancel this Lease, and retake
possession and occupancy of the Premises
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16.3 TERMINATION AND POSSESSION: Declare this Lease terminated,
whereupon the Term herein granted and all right, title, and
interest of Tenant in and to the Premises shall end. Such
termination shall be without prejudice to Landlord's right to
enforce the collection of any Rent, Additional Rent or other
amounts due or accrued at the termination thereof, and for
such time as shall be required to evict Tenant, together with
all other damages suffered by Landlord as a result of Tenant's
default. Upon such termination Landlord shall have the right
to immediately re-enter the Premises and take possession
thereof, and Tenant shall thereupon be deemed to have
surrendered the Premises to Landlord.
16.4 TENANT'S ACCOUNT: Landlord may pay or perform any obligation
of Tenant for Tenant's account, without prejudice to any other
right or remedy of Landlord. All damages, costs and expenses
so incurred by Landlord, including any interest, penalties and
actual attorneys' fees, shall be due and payable to Landlord
on demand.
16.5 LANDLORD'S LIEN: Enforce by any means available by law or in
equity, a Landlord's lien upon any or all of Tenants
equipment, furnishings, furniture trade fixtures, inventory,
and other personal property of Tenant situated on, affixed to,
or kept on the Premises. Tenant hereby grants Landlord an
express Landlord's lien upon all such property and in
furtherance thereof, Tenant agrees to execute and record such
UCC-1 financing statements as Landlord may deem necessary to
perfect its Landlord's lien.
16.6 TRIAL WAIVER:
THE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS
WHATSOEVER ARISING OUT OF, OR IN ANYWAY CONNECTED WITH, THIS
LEASE, THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE.
Tenant hereby consents to the jurisdiction of any state court
whose jurisdiction includes the county in which the Premises
are located
16.7 SERVICE ADDRESS: In the event of any action or proceeding
arising from this Lease or any other agreement to which
Landlord and Tenant are a party, Tenant hereby stipulates that
service of process upon Tenant shall be effective at the
following address:
Sargon Capital, Inc.
2033 Main Street, Suite 400
Sarasota, FL 34237
Tenant covenants that it shall, within five (5) days of
change, notify Landlord of any new address for service of
process. In the event that the foregoing address shall
conflict with or otherwise be different from any address
designating a registered agent with the Secretary of State of
the State of Florida, then Landlord, at Landlord's election,
may elect to serve Tenant utilizing either address.
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16.8 CUMULATIVE REMEDIES: The remedies of Landlord herein are
cumulative and the election to proceed by forfeiture or
surrender or otherwise shall not preclude the exercise of any
other remedies herein described or otherwise provided by
statute or general law, including at law or in equity, at the
same time or in subsequent times or actions.
17. LANDLORD'S RIGHT OF ENTRY
The Tenant agrees that the Landlord, its agents and employees may enter
the Premises at any hour to protect the same against the elements,
accidents, or to effect repairs or replacements, and at any reasonable
hour for the purpose of examining the same, showing the same to
prospective purchasers or tenants, or for any other reasonable purpose.
18. NOTICES
Any bill, statement, notice or communication which the Landlord may
desire or be required to give to Tenant shall be deemed sufficiently
given and rendered if, in writing, personally delivered or sent by
first class mail, postage prepaid, certified return receipt requested
or by recognized overnight carrier addressed to the Tenant, at the
address set forth in paragraph 1.16 (or such different address as
Tenant may notify Landlord), and the time of the rendition of such
bill, statement, or notice shall be deemed to be the time when the same
is mailed or sent by overnight carrier to the Tenant, or delivered as
herein provided. Any notice to Landlord shall be in writing, addressed
to Landlord at Landlord's Address (or such different address as
Landlord may notify Tenant) and shall be sent first class mail, postage
prepaid, certified return receipt requested or by recognized overnight
carrier and the time of the rendition of such bill, statement, or
notice shall be deemed to be the time when the same is mailed or sent
overnight carrier to the Landlord.
19. TAXES ON TENANT'S PERSONAL PROPERTY AND TAXES ASSESSED AGAINST RENTALS
19.1 PERSONAL PROPERTY TAXES: The Tenant shall pay promptly when
due any and all taxes and assessments that may be levied or
assessed against Tenant's personal property located in, on or
about the Premises and will cause such personal property to be
assessed directly to the Tenant. If for any reason such
personal property cannot, or is not assessed separately and is
included with the Landlord's real or personal property tax
assessments, the Tenant will upon demand pay to the Landlord
the amount of taxes levied or assessed against the personal
property, using for such purpose the valuation and rate of tax
placed thereon by the taxing authority, if the same can be
determined and if not, using a reasonable valuation.
19.2 SALES TAX: In addition to the rent provided for above, the
Tenant shall pay to the Landlord, promptly as and when due,
all sales, use or excise taxes, levied, assessed or payable on
or on account of the leasing or renting provided for
hereunder, or on account for the rent payable hereunder.
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20. ATTORNEY'S FEES AND COSTS OF COLLECTION
The Tenant shall promptly pay to the Landlord all actual costs and
expenses of enforcement of this Lease and of collection, including
appeals, including without limitation attorneys' fees, paralegal fees,
and costs, with respect to any part of said Rent and other charges and
sums of money herein reserved or required by the Tenant to be paid and
met, which may be sustained or incurred by the Landlord after the date
the same, or any portion thereof, becomes due; and the Tenant further
agrees to pay all costs and expenses, including attorneys' fees and
paralegal fees, (prior to suit, during suit, and on appeal, if
applicable), which may be sustained or incurred by the Landlord in or
about the enforcement or declaration of any of the rights or remedies
of the Landlord or obligations of the Tenant, whether arising under
this Lease or granted, permitted or imposed by law or otherwise.
21. PRIOR AGREEMENTS
This Lease supersedes and revokes any and all prior written agreements
between the parties relating to the Premises, and all oral agreements
between the parties relating to the Premises are hereby merged into
this Lease; and no amendment, modification or variation of this Lease
or of any terms or provisions of this Lease, shall be effectual,
binding or valid unless and until the same is reduced to writing and
signed by the party to be charged thereby. No notice, request or demand
in this Lease provided for may be waived except by written waiver
thereof signed by the party waiving the same. Submission of this Lease
to or by Tenant shall not create any rights in favor of Tenant until
this Lease has been executed by both Landlord and Tenant.
22. FLOOR PLANS
Any floor plan or other plan, drawing or sketch which is attached to or
made part of this Lease is used solely for the purpose of a reasonable
approximate identification and location of the demised Premises, and
any markings, measurements, dimensions or notes of any kind contained
therein (other than the outline of the Premises as an approximate
identification and location thereof) have no bearing with respect to
the terms and conditions of this Lease. The design, layout, materials,
structure or other aspects of the Building and Property may be altered
hereafter without affecting Tenants obligations hereunder.
23. NO AUTOMATIC RENEWAL
There shall be no extension or automatic renewal of the terms of this
Lease unless otherwise agreed in writing by the parties hereto. Tenant
shall have no right to hold over, but if Tenant does so with Landlord's
written consent, the holdover shall be a tenancy from month-to-month
terminable at will by either Landlord or Tenant, and monthly Rent shall
be five (5) percent higher than the amount due in the last month
preceding the holdover period (unless Landlord specifies a higher or
lower rent in the written consent). If Tenant holds over without
Landlord's written consent, then Tenant shall be a tenant-at
sufferance. Tenant shall pay by the first day of each month during the
holdover period twice the amount of Monthly Rent due in the last full
month immediately preceding the holdover period and shall be liable for
any damages suffered by Landlord because of Tenant's holdover. Landlord
shall also retain its remedies if Tenant holds over without written
consent.
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24. CONDITIONS OF PREMISES; NO WARRANTIES
Except as otherwise expressly provided in this Lease, the Premises is
leased in "as is" condition without any modification or fit out
required of the Landlord Tenant acknowledges that neither Landlord nor
any agent or employee of Landlord has made any representation or
warranty with respect to the Premises, the Building or the Property or
with respect to the suitability of the Premises for Tenant's intended
use unless such are expressly set forth in this Lease. Tenant further
acknowledges that no representations or warranties as to the state of
construction or repair of the Premises, nor promises to alter, remodel,
improve, repair decorate or paint the Premises, have been made by
Landlord.
25. TERMS, HEADINGS AND JURISDICTION
As used herein the singular shall include the plural, the plural shall
include the singular, and each gender shall include the other where the
context shall so require. The headings in this Lease are not a part of
this Lease and shall have no effect upon the construction or
interpretation of any part hereof. This Lease shall be governed by the
laws of the State of Florida.
26. CONDEMNATION
In the event the whole or any part of the Building of which the
Premises are a part, other than a part not interfering with the
maintenance or operation thereof shall be taken or condemned for any
public or quasi-public use or purpose, the Landlord may, at its option,
terminate this Lease from the time title to or right to possession
shall vest in or be taken for such public or quasi-public use or
purpose. The Landlord shall be entitled to any and all income, rent,
awards or any interest therein whatsoever which may be paid or made in
connection with the condemnation or threat of condemnation of all or
any part of the Building.
27. SUBORDINATION TO MORTGAGES
This Lease is hereby made expressly subject and subordinate at all
times to any and all mortgages, deeds of trust, ground or underlying
leases affecting the Premises which have been executed and delivered or
which will hereafter be executed and delivered and any and all
extensions and renewals thereof and substitutions therefor and to any
and all advances made or to be made under or upon said mortgages, deeds
of trust, ground or underlying leases. Tenant agrees to execute any
instrument or instruments which the Landlord may deem necessary or
desirable to effect the subordination of this lease to any or all such
mortgages, deeds of trust, ground or underlying leases within 10 days
of Landlord's request. In the event that the Tenant shall refuse, after
10 days following Landlord's request, to execute such instrument or
instruments which the Landlord may deem necessary or desirable to
effect the subordination of the Lease to any or all such mortgages,
deeds of trust, ground or underlying leases, the Landlord may, in
addition to any right or remedy accruing hereunder, terminate this
Lease without incurring any liability whatsoever and the estate hereby
granted is expressly limited accordingly. The Tenant hereby agrees to
attorn to any future owner of the Landlord's interest in the Premises
under this Lease, whether such occurs by reason of the dispossession of
the Landlord or otherwise, and such shall not constitute a default by
Landlord hereunder.
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28. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
28.1 Within ten (10) days after request of Landlord, Tenant shall
deliver to Landlord a duly executed certificate stating the
Termination Date, the Monthly Rent and Additional Rent, the
amount of any prepaid rent and security deposit, the fact that
this Lease is in full force and effect, the fact that this
Lease is unmodified (or if modified, the date of the
modification), and the fact that Landlord is not in default
(or if a default exists, the nature thereof). Failure to
timely deliver same shall constitute a default under the terms
of this Lease. Such certificate may be relied on by Landlord,
prospective lenders or prospective purchasers.
28.2 During the Term of this Lease and any extensions thereto,
Tenant (and Tenants Guarantor) shall produce current financial
statements as requested by Landlord, any prospective purchaser
or lender or any lender of record within thirty (30) days of
written notification from Landlord, together with an opinion
of an independent certified public accountant of recognized
standing to the effect that such financial statements have
been prepared in conformity with generally accepted accounting
methods consistently applied and fairly present the financial
condition and results of operations of Tenant as of and for
the periods covered. Landlord agrees to limit any such
requests for the production of internal financial statements
from the Tenant to a maximum of one request in each twelve
month period of the Lease Term. Tenant acknowledges that this
provision is a material element of the Lease without which
Landlord would not have entered into this Lease. If Tenant (or
Tenant's Guarantor) is a company which is required to make
periodic reports to the Securities and Exchange Commission, a
copy of Tenant's (or Tenant's Guarantor) most recent publicly
disclosed financial statement shall be sufficient for purposes
of this Lease.
29. QUIET ENJOYMENT
Landlord agrees that Tenant, upon paying the Monthly Rent, all
Additional Rent, and all other sums and charges then due and upon
performing the covenants and conditions of this Lease to be performed
by the Tenant, may enjoy peaceful and quiet possession of the Premises
during the Term.
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30. PARKING SPACES
Tenant shall be entitled to such parking spaces located in the attached
parking garage as are provided for in Section 1.20.
31. LANDLORD'S RIGHT TO ALTER COMMON AREAS
Without abatement or diminution in rent, Landlord reserves and shall
have the right to change the street address and/or the name of the
Building and/or the arrangement and/or location of entrances,
passageways, doors, doorways, corridors, elevators, stairs, or other
Common Areas of the Building or the complex without liability to
Tenant.
32. EXCULPATION
Notwithstanding anything to the contrary set forth in this Lease, it is
specifically understood and agreed by Tenant that there shall be
absolutely no personal liability on the part of Landlord, or Landlord's
successors or assigns with respect to any of the terms, covenants and
conditions of this Lease, and Tenant shall look solely to the equity of
the current or future owner in the Property for the satisfaction of
each and every remedy of Tenant in the event of any breach by Landlord
of any of the terms, covenants and conditions of this Lease to be
performed by Landlord. This exculpation of personal liability is
absolute and without any exception whatsoever. The covenants and
obligations contained in this Lease on the part of Landlord shall be
binding on the Landlord, its successors and assigns only during and in
respect to their respective successive periods of ownership.
33. SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns.
34. BUILDOUT ALLOWANCE
N/A
35. REAL ESTATE COMMISSIONS
Tenant states affirmatively that it has not had dealings of any nature
with any real estate broker or salesperson with respect to this Lease
other than _________ N/A ______________, for whose commission _______
N/A __________ is solely responsible. Tenant agrees to hold Landlord
harmless and indemnify Landlord from and against any claim for
commission, fees, or expenses of any other party, including but not
limited to, any real estate brokers or salespersons in regard to the
obtaining of the Lease. Landlord shall not be responsible for any
claims for commission, fees or other expenses of any broker or
salesperson in connection with Tenant's exercise of any option to renew
or extend this Lease, unless Landlord has otherwise agreed in writing.
-22-
36. RADON AND HAZARDOUS WASTE
36.1 RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT
IS 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 HEALTH DEPARTMENT. THE FOREGOING NOTICE IS
PROVIDED PURSUANT TO SS. 404.056(6), FLORIDA STATUTES (2001),
WHICH REQUIRES THAT SUCH NOTICE BE INCLUDED IN CERTAIN REAL
ESTATE DOCUMENTS.
36.2 Tenant shall not place in nor store on or about the Premises
or Building nor discharge, emit, dispose or release from on or
about the Premises or Building, nor allow to be placed onto,
stored on or about, or be discharged, emitted, disposed or
released from on or about the Premises or Building, any
pollutants, hazardous substances or hazardous waste; (as
defined by and/or as prohibited by any common law or any
federal, state or local statute, regulation, ordinance or
other regulatory requirement including without limitation, any
so-called "Superfund" or "Super Lien" legislation, relating to
the presence of hazardous waste on, in or about the Premises)
and shall indemnify and hold Landlord harmless from and
against any and all expense, damage, loss or liability
incurred by Landlord as a result of Tenants breach of this
covenant, including, without limitation, any response costs,
cleanup costs, environmental investigation and/or feasibility
costs, and any and all fines or penalties imposed as a result
thereof. Tenant further agrees that, upon request, it shall
furnish Landlord with such estoppel or other written
information as Landlord may reasonably request with regard to
Tenant's compliance with this representation and Tenant
acknowledges that the covenants in this Section comprise a
material inducement for Landlord to enter into this Lease
without which Landlord would not have done so.
37. COMPLIANCE WITH LAWS INCLUDING THE AMERICANS WITH DISABILITIES ACT
The Tenant, at Tenant's sole cost and expense, shall comply with the
requirements of all municipal, state and federal authorities now or
hereafter in force, pertaining to the Premises, and shall faithfully
observe in the use of the Premises and Common Areas all municipal
ordinances and regulations and state and federal statutes and
regulations now or hereafter in force and effect, including but not
limited to The Americans With Disabilities Act, 28 CFR Part 36. Such
compliance shall be at the expense of the Tenant.
38. BUILDING RULES AND REGULATIONS
Tenant agrees that it shall at all times abide with the Building Rules
and Regulations attached hereto as "Exhibit B" as they may be modified
by Landlord from time to time.
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39. PERFORMANCE
TIME IS OF THE ESSENCE OF THIS LEASE.
40. SHORT FORM OF LEASE
This Lease shall not be recorded. However, the Landlord may record a
Short Form of this Lease, the form of which is attached hereto as
Exhibit C.
41. RIGHT TO RELOCATE TENANT
Landlord reserves the right to relocate any Tenant whose Premises is
less than 3,000 square feet of rentable area during the term of this
Lease or any renewal thereof, to similar quality office space within
the Building; if Landlord shall exercise this right to relocate Tenant,
then any and all costs incident to said relocation shall be the
responsibility of the Tenant. Landlord shall provide Tenant at least
sixty (60) days written notice of Landlord's intention to relocate the
Premises; the physical relocation shall take place on a weekend and
shall be completely accomplished before Monday following the weekend in
which the relocation takes place. If the relocated Premises are smaller
than the original Premises as they existed before the relocation, the
annual base rent shall be reduced pro rata.
-24-
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease as
of the day and year first above written.
WITNESS: Landlord:
CENTERPOINTE PROPERTY, LLC, as agent
for PMW Hospitality and RFW Hospitality LLC
- ----------------------------------------------------
/s/ Robert Hillier By: /s/ Don Wilson
- ---------------------------------------------------- --------------------------------------------
Robert Hillier Print Name: Don Wilson
Its: Manager
WITNESS: Tenant:
National Health Care, Inc.
- ----------------------------------------------------
/s/ Robert Hillier By: /s/ David Daniels
- ---------------------------------------------------- -------------------------------------------
Robert Hillier Print Name: David Daniels
-----------------------------------
Its: CEO
------------------------------------------
-25-
Omitted Exhibits
The following exhibits to the Commercial Office Lease have been
omitted:
Exhibit Exhibit Description
------- --------------------
A Floor Plan of Premises
B Building Rules and Regulations
C Short Form Lease
D Buildout Allowance
E Landlord's Work
The Company agrees to furnish supplementally a copy of the foregoing
omitted exhibits to the Securities and Exchange Commission upon request.