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WINGATE COMMONS BUSINESS PARK
NET LEASE
1. Parties.
THIS LEASE, dated, for reference purposes only, September 27, 1991, is
made between REYNOLDS METALS DEVELOPMENT COMPANY, a Delaware corporation
("Landlord") and LIFECARE INVESTMENTS, INC. a Delaware corporation ("Tenant").
2. Premises.
Landlord hereby leases to the Tenant and Tenant leases from Landlord
for the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the County of Broward, State of Florida,
commonly known as Building C of Wingate Commons Business park, 4517 N.W. 31st
Avenue, Ft. Lauderdale, Florida 33309, as indicated on Exhibit "A" attached
hereto and by reference made a part hereof (the "Premises").
3. Term.
3.1 Term. The term of this Lease is twenty (20) years commencing
on the date on which a certificate of occupancy for any portion of the Premises
is issued (the "Commencement Date") and ending at midnight, twenty (20) years
thereafter, unless sooner terminated pursuant to any provision hereof.
3.2 Delay in Completion of Improvements. Landlord will take all
steps reasonably necessary in order to ensure that the Improvements, as that
term is hereinafter defined, are completed no later than
, 1991; however, if the completion of the Improvements shall be delayed due to
(a) any act or omission of the Tenant or any of its employees, agents or
contractors (including, but not limited to (i) any delays due to changes in or
additions to the Improvements, or (ii) any delays by Tenant in the submission
of plans, drawings, specification, or other information or in approving
drawings or in giving any authorizations or approvals); (b) any delays beyond
control of Landlord including, but not limited to, strikes, lockouts, civil
commotion, warlike conditions, invasion, rebellion, hostility, inclement
weather, inability to obtain material or services and acts of God; or (c) any
delays caused by governmental regulations or controls, Landlord shall not be
subject to any liability therefore, nor shall such failure affect the validity
of the Lese or the obligations of Tenant hereunder, but in such case, Tenant
shall not be obligated to pay rent until possession of the Premises is tendered
to Tenant.
3.3 Early Possession. If Tenant occupies the Premises prior to
the Commencement Date, such occupancy shall be subject to all provisions
hereof, such occupancy shall not advance the
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termination date, and Tenant shall pay rent for such period at the initial
monthly rates set forth below.
4. Rent/Security Deposit.
4.1 Rent.
(a) Tenant shall pay to Landlord annual rent for the Premises
in the amounts set forth below under the heading "Annual Rent." As long as
Tenant is not in default hereunder, rent may be paid in equal monthly
installments in the amounts set forth below under the heading "Monthly Rent,"
as adjusted by Subsection 4.1(b), in advance, on the tenth day of each month of
each Lease Year, as herein defined, during the term hereof. Rent shall be
prorated if the term does not commence on the first day of a calendar month or
expire on the last day of a calendar month. Rent shall be paid to Reynolds
Metals Development Company, 4501 N.W. 31st Avenue, Ft. Lauderdale, Florida
33309.
Term Annual Rent Monthly Rent
First twelve months $ 99,698.75 $8,308.23
Second twelve months $103,941.25 $8,661.77
(b) The term "Lease Year", as used herein, (i) shall mean the
twelve (12) month period beginning with the Commencement Date as defined in
Section 3.1 hereof, and each twelve (12) month period thereafter occurring
during the term of this Lease, and (ii) in the event the Lease expires or
terminates on a date other than the date set forth herein, then the term "Lease
Year" shall also mean the period from the end of the preceding Lease Year to
the date of said expiration or termination of this Lease. Landlord and Tenant
agree that subsequent to the end of each and every Lease Year the Monthly Rent,
or Adjusted monthly Rent, as herein defined, if applicable, which was payable
for the immediately preceding Lease Year shall be adjusted for payment during
the current Lease Year by an amount equal to the product of (i) the Monthly
Rent or adjusted Monthly Rent, if applicable, for the immediately preceding
Lease Year multiplied by (ii) the difference expressed as a percentage between
the Consumer Price Index, as herein below defined, published for the last month
of the immediately preceding Lease year and the Consumer Price Index for the
corresponding month one year prior thereto (i.e., the percentage change in said
Index over said year); provide, however, that such new Monthly rent shall in no
event be less than the Monthly Rent, or Adjusted Monthly Rent for the preceding
year. The monthly rental payment so adjusted by the Consumer Price Index shall
become the adjusted monthly rent (the "Adjusted Monthly Rent"). The initial
annual adjustment shall be computed based on the Monthly Rent and the next
annual adjustment shall be computed based on the Adjusted Monthly Rent with
each annual adjustment thereafter based on the Adjusted Monthly Rent for the
immediately proceeding year. As
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soon as practicable after the end of each Lese Year, Landlord shall prepare and
submit to Tenant a statement (the "Statement") reflecting the Adjusted Monthly
Rent which shall be paid commencing with the next monthly installment of Rent
and shall remain in effect until the next annual adjustment is made. In
addition, within twenty (20) days following receipt of Landlord's Statement,
Tenant shall pay to Landlord a sum equal to the difference between the amount
of monthly rental payments Tenant has paid Landlord since the start of the
current Lease Year, if any, and an amount computed as follows: 1/12th of the
total Adjusted Monthly Rent for the entire current Lease Year multiplied by the
number of months which have fully or partially expired between the first day of
the current lease year and the date of the first payment of the Adjusted
Monthly Rent to be made subsequent to the date of the Statement.
Any Statement sent by Landlord to Tenant shall be conclusively
binding upon Tenant unless, within thirty (30) days after such Statement is
sent, Tenant shall send a written notice to Landlord objecting to such
Statement and specifying the respects in which such Statement is claimed to be
incorrect. If such notice is sent and the parties are unable to revolve the
issues, either party hereto may refer the matter to a reputable independent
firm of certified accountants selected by Landlord, and the decision of said
accountants shall be conclusively binding upon said parties. The fees and
expenses of the accountants shall be borne by the unsuccessful party unless
both parties are unsuccessful, then said expenses shall be apportioned between
the parties by the accountants based upon the degree of success of each party.
The term "Consumer Price Index," as used herein, shall be the
Consumer Price Index for All Urban Consumers based upon the U.S. City Average
(All Items Included, 1982-94 = 100) published by the Bureau of Labor Statistics
of the United States Department of Labor. If the Consumer Price Index shall
hereafter be converted to a different standard reference base or otherwise
revised, the determination of the percentage increase in the Consumer Price
Index shall be made with the use of such conversion factor, formula or table
for converting the Consumer Price Index as may be published by the Bureau of
Labor Statistics or, if said Bureau shall not publish the same, then with the
use of such conversion factor, formula or table as may be published by Prentice
Hall, Inc., or, failing such publication, by any other nationally recognized
publisher of statistical information. If the consumer Price Index shall become
unavailable to the public because publication is discontinued, or otherwise,
Landlord will substitute therefor a comparable index based upon changes in the
cost of living or purchasing power of the consumer dollar published by any
other governmental agency, or, if no such index shall be then available, a
comparable index published by a major bank or other financial institution or by
a university or a recognized financial publication, and the substituted index
shall
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be deemed the Consumer Price Index for the purposes of this Section.
(c) Tenant agrees that any adjustments to the base monthly
Rent and other sums due Landlord from Tenant under the tomboys of this Lease
shall be considered as additional rent from Tenant (the "Additional Rent"). As
used herein the term "Rent" shall include the Monthly Rent, Adjusted Monthly
Rent, Additional Rent and such other payments as are set forth herein.
(d) It is understood and agreed that Tenant's obligation
to pay the Additional Rent shall, for the purposes of the default provision
hereof, entitle Landlord to all remedies provided herein and at law or equity
on account of Tenant's failure to pay rent.
(e) In no event shall any adjustments made pursuant to Section
4.1(b) result in the Landlord receiving an amount less than the Monthly Rent or
Adjusted Monthly Rent,if applicable for the immediately preceding Lease Year.
(f) Any delay or failure of Landlord in computing or billing
for Additional Rent shall not constitute a waiver or in any way impair the
continuing obligation of the Tenant to pay such Additional Rent.
4.2 Security Deposit. Tenant shall deposit with Landlord on the
Commencement Date $8,308.23 as security for Tenant's faithful performance of
Tenant's obligations hereunder (the "Security Deposit"). If Tenant fails to
pay rent or other charges due hereunder, or otherwise defaults with respect to
any provision of this Lease, Landlord may use, apply or retain all or any
portion of the Security Deposit for the payment of any rent or other charge in
default or for the payment of any sum to which Landlord may become obligated by
reason of Tenant's 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 the Security deposit, Tenant shall within fifteen (15) days after
written demand therefore, deposit cause with Landlord in an amount sufficient
to restore the Security Deposit to the full amount hereinabove stated and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep said deposit separate from its general accounts.
If Tenant performs all of Tenant's obligations hereunder, the Security Deposit,
or so much thereof as has not theretofore 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) at the expiration of the term hereof, and after Tenant has vacated
the Premises. No trust relationship is created herein between Landlord and
Tenant with respect to the Security Deposit.
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5. Use.
5.1 Use. The Premises shall be used by Tenant for offices and for
no other purposes, and Tenant further agrees to use the entire Premises as
herein above provided. Tenant agrees not to store any material, waste or other
products outside the Premises in any adjoining area. Tenant further agrees
that it will not store or dispose of hazardous materials in or about the
Premises. For the purposes of this Lease, "hazardous materials" includes any
hazardous, toxic or dangerous waste, substance or material defined as such in
(or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called "superfund" of "superlien" law, or any other
federal, state or local statute, law ordinance, code,rule, regulation, consent
agreement or other requirement of any governmental authority regulating,
relating to, or imposing liability or standards of conduct concerning, any
hazardous or toxic or dangerous waste. Tenant shall defend, indemnify and save
Landlord harmless from all costs and expenses (including consequential damages)
asserted or proven against Landlord by any party as result of Tenant's use,
storage or disposal of hazardous materials (as defined above) on the Premises.
The foregoing indemnity shall be a recourse obligation of Tenant which shall
survive termination or expiration of this Lease. In the event that any
activity of the Tenant causes an increase in the insurance rate on the building
containing the Premises as a whole, then Tenant shall pay this additional cost
of insurance as assessed by Landlord's insurer, which determination shall be
conclusive and binding upon Tenant.
5.2 Compliance with Law. Tenant shall, at Tenant's expense,
comply promptly with all applicable statutes, ordinances, rules, regulations,
orders, permits, covenants and restrictions of record, and requirements in
effect during the term or any part of their term hereof, regulating the use or
condition of the Premises, including but not limited to, environmental matters
and employee health and safety. Tenant shall not use nor permit the use of the
Premises in any manner that will tend to create waste or a nuisance or, if
there shall be more than one tenant in the building containing the Premises,
shall tend to disturb such tenants.
5.3 Condition of Premises. Tenant hereby accepts the Premises in
their condition existing as of the Commencement Date of the Lease, subject to
all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use and condition of the Premises and
any covenants or restrictions of record, and accepts this Lease subject thereto
and to all matters disclosed thereby. Tenant acknowledges that neither
Landlord nor Landlord's agent has made any representation or warranty as to the
present or future suitability of the Premises for the conduct of Tenant's
business.
5.4 Common Areas. All areas and facilities that Landlord shall
from time to time designate as being for the mutual use of Tenant, its
customers, employees and other tenants,
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including but not limited to all parking areas, sidewalks, driveways, roads and
landscaped areas located in the business park of which the Premises are a part,
shall be known as the "Common Areas". Tenant and its employees, customers and
invites shall have the non-exclusive right to use Common Areas together with
Landlord and the other tenants of the park, their customers, employees and
guests and, subject to such reasonable rules and regulations governing the use
of the Common Areas as Landlord may from time to time prescribe, such rules
specifically to include but are not limited to parking rules. Tenant shall not
use the Common Areas for storage without the prior written consent of Landlord
or take any action which would interfere with the rights of other persons to
use the Common Areas. Landlord may temporarily close any part of the Common
Areas for such period of time as is reasonably necessary to make repairs or
alterations to the Common Areas.
6. Maintenance, Repairs and Alterations.
6.1 Tenant's Obligations.
(a) Tenant, at Tenant's expense, shall keep in good order,
condition and repair the nonstructural portions of the Premises and every part
thereof, including by way of illustration, all plumbing, heating, air
conditioning, ventilation, electrical and lighting facilities and equipment
located within the Premises, interior surfaces of exterior walls (including but
not limited to damage to such surfaces caused by etching or staining from
spilled or leaked materials), ceilings, windows, doors and plate glass and
Tenant's signs located on or about the Premises. Tenant shall be obligated to
make the repairs required hereunder whether or not such portion of the
'Premises requiring repair, or the means of repairing the same are reasonably
or readily accessible to Tenant, and whether or not the need for such repairs
occurs as a result of Tenant's use, any prior use, th elements, or the age of
such portion of the Premises. All glass, both interior and exterior, is the
sole risk of Tenant and Tenant agrees to replace at Tenant's own expense any
glass broken during the term of this Lease and Tenant agrees to insure and to
keep insured all plate glass in the Premises and to furnish the Landlord with
certification of said insurance. In the event replacement is necessary, Tenant
agrees to use such insurance for the replacement of any broken glass. The term
"repair" shall be deemed to include replacements. In addition to Tenant's
obligations set forth herein, Tenant shall, at its expense, repair and replace
any and all portions of them Premises, structural and onstructural, or any
landscaping, damaged by Tenant's acts of omissions or the acts or omissions of
Tenant's employees, agents, contractors or any others for whom Tenant may be
responsible.
(b) If Tenant fails to perform Tenant's obligations under this
Section 6.1 within a reasonable time after receipt of written notice of the
need for such repairs, Landlord
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may at Landlord's option enter upon the Premises (except in the case of
emergency, in which case no notice shall be required), perform such obligations
on Tenant's behalf and put the Premises in good order, condition and repair,
and the cost thereof shall be due and payable as additional rent to Landlord,
together with Tenant's next rental installment.
(c) On the last day of the term thereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in the same
condition as received, ordinary wear and tear excepted, and the Premises shall
be delivered to Landlord clean, uncontaminated and free of debris. Tenant
shall remove its trade fixtures, furnishings and equipment from the Premises
and shall repair any damage to the Premises occasioned by the installation or
removal of its trade fixtures, furnishings and equipment.
6.2 Landlord's Obligations. Landlord, at Landlord's expense,shall
keep in good order, condition and repair, all of the structural portions of the
Premises, including, without limiting the generality of the foregoing, the
roof, the exterior walls and the foundation of the Premises. Landlord shall
repair and replace if necessary any latent or other defects in the Premises
which arose during, or which are attributable to, construction of the Premises;
and Landlord shall maintain the Common Areas as described in Section 5.4.
Landlord shall have no obligation to make repairs under this Subsection 6.2
until a reasonable time after receipt of written notice of the need for such
repairs.
6.3 Common Area Maintenance.
(a) Each month, Tenant shall pay to Landlord, in addition to
the rent due on the Premises, Tenant's Share (defined below) of the cost of
Common Area maintenance for the Premises or the business park of which the
Premises are a part. Common Area maintenance costs shall include all expenses
reasonably incurred and paid by Landlord in operating, managing and maintaining
the Common Areas of the Premises or the business park of which the Premises are
a part, including, without limiting the generality of the foregoing, painting
and cleaning of paved and unpaved surfaces, lighting, landscaping, signage,
trash collection and other similar items.
(b) Tenant's Share" shall be a fraction, the numerator of
which shall be Tenant's leased space in the building comprising a portion of
the Premises (8,485 square feet) and the denominator of which shall be the
total leasable space in the buildings in the business park of which the
Premises are a part (33,940 square feet) or twenty-five percent (25%).
(c) During the First Lease Year, the Tenant's Share of Common
area Maintenance and Real Property Tax, as the term is defined in Subsection
10.2 of this Lease, shall be $2.00
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per square foot of leased space in the building (8,485 square feet) comprising
a portion of the Premises, which sum shall be adjusted annually pursuant to
this Subsection 6.3(c). Landlord shall prepare and submit to Tenant a
statement reflecting the Common Area expenses incurred during the prior year
and the projected Common Area expenses expected to be incurred during the
subsequent year, at which time the monthly amount to be paid by Tenant
hereunder shall be adjusted accordingly in order to pay any deficiency for the
previous year together with any increase or decrease in the projected Common
Area expenses expected to be incurred during the subsequent year over that
which was expected to be incurred during the prior year.
(d) Landlord, at Landlord's option or upon Tenant's request,
amy provide Tenant with a monthly written statement of Tenant's Share of the
Common area Maintenance costs.
6.4 Alterations and Additions.
(a) Tenant shall not make any alterations, improvements or
additions in, on or about the Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld.
(b) Any alterations, improvements or additions in the Premises
that Tenant shall desire to make shall be presented to Landlord in written form
with proposed detailed plans prepared by a professional architect or engineer.
If Landlord shall give its consent, the consent shall be deemed conditioned
upon Tenant acquiring a permit to do so from appropriate governmental agencies,
if required, furnishing a copy thereof to Landlord prior to the commencement of
the work and complying with all conditions of said permit in a prompt and
expeditious manner.
(c) Tenant shall pay, when due, all claims for labor or
materials furnished to or for Tenant at or for use in the Premises, which
claims are or may be secured by any mechanics' or materialmen's lien against
the Premises or any interest therein. Tenant shall give Landlord not less than
ten (10) days' notice prior to the commencement of any such work in the Premise
and Landlord shall have the right to post notices of non-responsibility in or
on the Premises as provided by law. If Tenant shall, in good faith, contest
the validity of any such lien, claim or demand, then Tenant shall, at is sole
expense,defend itself and Landlord against the same and shall pay and satisfy
any such adverse judgement that my be rendered thereon before the enforcement
thereof against the Landlord or the Premises. Landlord may, at its option,
require Tenant to furnish to Landlord a surety bond satisfactory to Landlord in
an amount equal to 125% of the amount of such contested lien, claim or demand
indemnifying Landlord against liability for the same and holding the Premises
free from the effect of such lien or claim.
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(d) Unless Landlord requires their removal, all alterations,
improvements and additions which may be made on the Premises shall become the
property of Landlord and remain upon and be surrendered with the Premises at
the expiration of the term. Notwithstanding the provisions of this Section
6.4, Tenant's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
shall remain the property of Tenant and may be removed by Tenant subject to the
provisions of Subsection 6. (c).
7. Insurance; Indemnity.
7.1 Liability Insurance. Tenant shall, at Tenant's expense,obtain
and keep in force during the term of this Lease, comprehensive general
liability insurance with a combined single limit of not less than $1,000,000.00
per occurrence for bodily injury and property damage insuring both Landlord and
Tenant against liability arising out of Tenant's use, occupancy and maintenance
of the Premises and all other area appurtenant thereto. Tenant shall deliver
to Landlord a certificate of insurance required under this Subsection, which
policy shall expressly name Landlord as an insured. No such policy shall be
cancelable or subject to reduction in coverage except after thirty (30) days'
prior written notice to Landlord.
7.2 Property Insurance. Landlord agrees that it will keep in
force during the term of this Lease insurance covering loss or damage to the
Premises (but not to Tenant's trade fixtures, furnishings, personal property or
improvements) providing protection against all perils included within the
classification of fire, lightning and extended coverage. Tenant shall pay the
cost of such insurance.
7.3 Waiver of Subrogation. Insofar as the following provision may
be effective without invalidating insurance coverage, Tenant and Landlord each
hereby release and relieve the other, and waive their entire right of recovery
against the other for loss or damage arising out of or incident to the perils
insured against under this Section 7, which perils occur in, on or about the
Premises, whether due to the negligence of Landlord or Tenant or their agents,
employees, contractors and/or invitees, but only to the extent that such loss
or damage is actually covered by insurance, and only to the extent that the
insured party has received proceeds of insurance therefore.
7.4 Indemnity. Tenant agrees to pay, and to defend, indemnify and
save harmless Landlord from and against any and all liabilities, losses,
damages, costs, expenses (including reasonable attorneys fees) in connection
with any injury to, or the death of, any person in, on or about the Premises or
any damage to or loss of property on the Premises, except any such liabilities,
losses, damages, costs, or expenses arising out of Landlord's negligence or
willful act. If any action or
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proceeding is brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord shall defend the same at Tenant's expense by counsel
mutually satisfactory to Landlord and Tenant.
7.5 Exemption of Landlord From Liability. Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or any loss
of income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other
person in or about the Premises, not shall Landlord be liable for injury to the
person of Tenant, Tenant's employees, agents or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures,or from any other cause, whether the said damage or injury results
from conditions arising upon the Premises or upon other portions of the
building of which the premises are apart, or from other sources or places and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant except when such damage or injury
is caused by Landlord's negligence. Landlord shall not be liable for any
damages arising from any act or neglect of any other tenant, if any, of the
business park in which the Premises are located. Nothing contained herein
shall be construed as limiting the right of Tenant to proceed against other
third parties for any injury or damage caused to Tenant.
8. Damage or Destruction.
8.1 Definitions.
(a) "Partial Damage" means damage or destruction to the
Premises to the extent that the cost of repair is less than fifty percent (50%)
of the fair market value of the Premises immediately prior to such damage or
destruction.
(b) "Total Destruction" means damage or destruction to the
Premises to the extent that the cost of repair is fifty percent (50%) or more
of the fair market value of the Premises immediately prior to such damage or
destruction.
8.2 Partial Damage. If at any time during the term of this Lease
there is damage which falls within the classification of Partial Damage,
Landlord may, at Landlord's option, either (i) repair such damage, in which
event this Lease shall continue in full force and effect, or (ii) give written
notice to Tenant within thirty (30) days after the date of the occurrence of
such damage of Landlord's intention to terminate this Lease, which termination
shall be effective as of the date of the occurrence of such damage.
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8.3 Total Destruction. If at any time during the term of this
Lease there is damage which falls into the classification of Total Destruction,
this Lease shall automatically terminate as of the date of such total
destruction.
8.4 Abatement of Rent. If Landlord repairs or restores the
Premises pursuant to the provisions of this Section 8, the rent payable
hereunder (including "Additional Rent") for the period during which such
damage, repair or restoration continues shall be abated in proportion to the
degree to which Tenant's use of the Premises is impaired. Except for abatement
of rent, if any, Tenant shall have no claim against Landlord as a result of any
such damage. Furthermore, notwithstanding anything above to the contrary,
Tenant shall not be entitled to any rent abatement if the Partial Damage is in
any way caused by Tenant.
9. Condemnation.
If the Premises or any portion thereof or other areas appurtenant to
the Premises are taken under the power of eminent domain, or sold under the
threat of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes title or possession, whichever first
occurs. If in the reasonable opinion of Tenant, the portion of the Premises
taken by condemnation materially adversely affects Tenant's operations on the
premises, Tenant may, at Tenant's option, to be exercised in writing only
within thirty (30) days after Landlord shall have given Tenant written notice
of such taking (or in the absence of such notice, within thirty (30) days after
the condemning authority shall have taken possession) terminate this Lease as
of the date the condemning authority takes such possession. Landlord shall
also have an option to terminate this Lease by notice to Tenant given within
the time limits set forth above if in Landlord's reasonable opinion, it would
not be economically feasible to continue leasing the Premises to Tenant as a
result of such condemnation. If this Lease is not terminated in accordance
with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the rent shall be reduced in the
proportion that the square feet of the Premises which is taken bears to the
total square feet of the Premises. Any award for the taking of all or any part
of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Landlord, whether
such award shall be made as compensation for diminution in value of the
leasehold, for the taking of the fee, or as severance damages; provided,
however, that Tenant shall be entitled to any award made specifically for loss
of or damage to Tenant's trade fixtures and removable personal property. In
the event that this Lease is not terminated by reason of such condemnation,
Landlord shall, at Landlord's expense, promptly repair any damage to the
Premises caused by such condemnation.
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10. Taxes.
10.1 Payment of Real Property Taxes. Each month, Tenant shall pay
Tenant's Share of the real property taxes applicable to the Premises during the
term of this Lease. "Tenant's Share" shall be calculated as set forth in
Section 6.3(b). All such payments shall be made within ten (10) days after
receipt of a written statement from Landlord setting forth Tenant's Share of
such taxes and a copy of the applicable real estate tax bill or bills. If any
real property taxes paid by Landlord covers any period of time prior to or
after the expiration of the term hereof, Tenant's Share of such taxes shall be
equitably prorated to cover only the period of time within the tax fiscal year
during which this Lease shall be in effect.
10.2 Definition of "Real Property Tax". As used herein, the term
"real property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Premises by any authority
having the direct or indirect power to tax, including any city, state or
federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, as against Landlord's right to rent or other income
therefore, and as against Landlord's business of leasing the Premises. The
term"real property tax" shall also include any tax, fee, levy, assessment or
charge (i) in substitution of, partially or totally, any tax, fee levy,
assessment or charge hereinabove included within the definition of "real
property tax", or (ii) the nature of which was hereinbefore included within the
definition of "real property tax", or (iii) which is imposed by reason of this
transaction or any modifications or changes hereto.
10.3 Joint Assessment. If the Premises are not separately
assessed, Tenant's liability shall be an equitable proportion of the real
property taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Landlord from the
respective valuations assigned in the assessor's work sheets or such other
information as may be reasonably available, and Landlord's reasonable
determination thereof, in good faith shall be conclusive.
10.4 Personal Property Taxes.
(a) Tenant shall pay, prior to delinquency, all taxes
assessed against and levied upon trade fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises. When possible,
Tenant shall cause said fixtures, furnishings, equipment and all other personal
13
property to be assessed and billed separately from the real property of
Landlord.
(b) If any of the Tenant's personal property shall be
assessed with the Landlord's real property, Tenant shall pay Landlord the taxes
attributable to Tenant within twenty (20) days after receipt of a written
statement setting forth the taxes applicable to Tenant's property.
10.5 Sales and Use Tax. In addition to the annual rent required
hereunder, Tenant shall also be solely responsible for all sales tax applicable
thereon, or applicable to any other charges or payments due hereunder.
11. Utilities and Services. Tenant shall pay for all water, gas, heat,
light, power, telephone and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such utilities are not
separately metered, Tenant shall pay a reasonable portion of the charges for
utilities jointly metered with other premises. Tenant shall provide, at its
expense, all janitorial and security services to the Premises.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily or
by operation of law assign, transfer, mortgage, sublet, o otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises,
without Landlord's prior written consent, which consent shall not be
unreasonably withheld provided (i) such assignment is to an
entity/individual(s) whose financial integrity is at lease equal to that of
Tenant; (ii) said assignee has demonstrated prior experience in the management
and operation of its business in a similar setting and of the same magnitude;
and (iii) proof thereof satisfactory to Landlord has been delivered to Landlord
at least ten (10) days prior to the effective date of any such transfer. Any
attempted assignment, transfer, mortgage, encumbrance or subletting without
such consent shall be void, and shall constitute a breach of this Lease. Any
sale, assignment or other transfer of controlling stock interest in Tenant
shall constitute an "assignment" for purposes hereof.
12.2 No Release of Tenant. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any person shall not be deemed to be a waiver by Landlord of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee of Tenant or any successor of Tenant, in the performance of any of
the terms hereof, Landlord may proceed directly against tenant without the
14
necessity of exhausting remedies against such successor. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant and without obtaining its or their consent thereto
and such action shall not relive Tenant of liability under this Lease.
12.3 Attorney's Fees. In the event Tenant shall assign or sublet
the Premises or request the consent of Landlord to any assignment or subletting
or if Tenant shall request the consent of Landlord for any act Tenant proposes
to do, then Tenant shall pay Landlord's reasonable attorney's fees incurred in
connection therewith, but Tenant shall be allowed to prepare all necessary
documents for the sublease at its own expense.
12.4 Landlord's Option to Terminate. Except as otherwise
specifically set forth herein, in the event that at any time during the term of
this Lease Tenant desire to assign this Lease or to sublet all or part of the
Premises, Tenant shall notify Landlord in writing of the terms of the proposed
assignment or subletting and the area so proposed to be sublet, and Landlord
shall have the option to terminate this Lease wholly in the event of a proposed
assignment or sublet of the whole Premises, or partially as to the portion of
the Premises proposed to be sublet, upon written notice to Tenant within 45
days after receipt of notice of Tenant's intention to assign or sublet. If
Landlord's election to terminate involves only a portion of the Premises, the
rent specified in this Lease shall be adjusted proportionately on the basis of
the number of square feet retained by Tenant and this Lease shall continue in
full force and effect in all other respects.
13. Defaults; Remedies.
13.1 Defaults. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and when due, where
such failure shall continue for a period of five (5) days after Tenant's
receipt of written notice thereof. In the event that Landlord serves Tenant
with a notice to pay rent or quit pursuant to applicable unlawful detainer
statues, such notice to pay rent or quit shall also constitute the notice
required by this Section.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Tenant, other than described in
15
Section 13.1(b) above, where such failure shall continue for a period of thirty
(30) days after written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant commenced such cure within the 30-day period and
thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Tenant of any general arrangement or
assignment for the benefit of creditors; (ii) Tenant becomes a "debtor" as
defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Tenant, the same is dismissed within 60
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days.
13.2 Remedies. In the event of any such material default or breach
by Tenant, Landlord may, at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of any right or remedy
which Landlord may otherwise have under Florida law by reason of such default
or breach:
(a) Terminate tenant's right to possession of the Premises by
any lawful means and terminate this Lease, in which case Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; the expense of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's fees
(including costs), and any real estate commission actually paid; the worth at
the time of award by the court having jurisdiction thereof of the amount by
which the unpaid rent for the balance of the term after the time of such award
exceeds the amount of such rental loss for the same period that Tenant proves
could be reasonably avoided; and that portion of the leasing commission paid by
Landlord pursuant to Section 14 applicable to the unexpired term of this Lease.
(b) Maintain Tenant's right to possession in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
the rent as it becomes due hereunder; provided, however, that Landlord shall
have the right to accelerate all amounts owed to Landlord by Tenant under this
Lease as due and payable immediately upon default.
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(c) Terminate Tenant's right to possession of the Premises
without terminating this Lease and re-enter and take possession of the
Premises, in which case Landlord shall use reasonable efforts to relet the
Premises to another party for Tenant's account and Tenant shall remain liable
for all rent and other amounts due under this Lease and not paid by such other
party; provided, however, that Landlord shall have the right to accelerate all
amounts owed to Landlord by Tenant under this Lease as due and payable
immediately upon default.
(d) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary obligations
of Tenant under the terms of this Lease shall bear interest from the date due
at the maximum rate then allowable by law.
13.3 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no even later than thirty (30) days after written notice by Tenant
to Landlord and to the holder of any first mortgage or deed or trust covering
the Premises whose name and address shall have theretofore been furnished to
Tenant in writing, specifying wherein Landlord has failed toper form such
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for performance, then
Landlord shall not be in default if Landlord commences performance within such
30-day period and thereafter diligently prosecutes the same to completion.
13.4 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to 5% of such overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the casts Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or
not collected, for three (3) consecutive installments of rent, then rent shall
automatically become due and payable quarterly in advance, rather
17
than monthly, notwithstanding Section 4 or any other provision of this Lease to
the contrary.
13.5 Impounds. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) consecutive installments of
rent, Tenant shall pay to Landlord, if Landlord shall so request, in addition
to any other payments required under this Lease, a monthly advance installment,
payable at the same time as the monthly rent, as estimated by Landlord, for
real property tax and insurance expenses on the Premises which are payable by
Tenant under the terms of this Lease. Such fund shall be established to insure
payment when due, before delinquency, of any or all such real property taxes
and insurance premiums. If the amounts paid to Landlord by Tenant under the
provisions of this section are insufficient to discharge the obligations of
Tenant to pay such real property taxes and insurance premiums as the same
become due, Tenant shall pay to Landlord, upon Landlord's demand, such
additional sums necessary to pay such obligations. All moneys paid to Landlord
under this section may be intermingled with other moneys of Landlord and shall
not bear interest. In the event of a default in the obligations of Tenant to
perform under this Lease, then any balance reaming from funds paid to Landlord
under the provisions of this section may, at the option of Landlord, be applied
to the payment of any monetary default of Tenant in lieu of being applied to
the payment of real property taxes and insurance premiums.
14. Broker's Fee.
Each party represents and warrants to the other that it has not dealt
with any broker, finder or similar agent in connection with any transaction
contemplated hereunder, other than Lehrer & Co. and In-Site Realty Associates,
Inc., whose fees shall be the sole responsibility of Landlord. Each party
hereto hereby covenants and agrees to defend, indemnify, hold harmless and
reimburse the other party for, from and against all claims of any kind of any
other broker, finder or similar agent purporting to represent the indemnifying
party in connection with any transaction contemplated hereunder.
15. Estoppel Certificate.
(a) Tenant shall at any time upon not less than ten (10) days' prior
notice from Landlord 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 modified, stating the nature of such modifications and
certifying that this Lease, as so modified, is in full force and effect) and
the date to which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if any
are claimed. Any
18
such statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises.
(b) At Landlord's option, Tenant's failure to deliver such statement
within such time shall be a material default under this Lease or shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than
month's rent has been paid in advance or such failure may be considered by
Landlord as a default by Tenant under this Lease.
(c) If Landlord desires to finance, refinance, or sell the Premises
or any part thereof, Tenant hereby agrees to deliver to any lender or purchaser
designated by Landlord such financial statements of Tenant as may be reasonably
required by such lender or purchaser. such statements shall include the past
three years financial statements of Tenant. all such financial statements
shall be received by Landlord and such lender or purchaser in confidence and
shall be used only for the purposes herein set forth.
16. Landlord's Liability.
The term "Landlord" as use herein shall mean only the owner or owners
at the time in questions of the fee title or a tenant's interest in a ground
lease of the Premises. In the event of any transfer of such title or interest,
Landlord herein named (and in case of any subsequent transfers, then the
grantor) shall be relieved from and after the date of such transfer of all
liability in respect of Landlord's obligations thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the
time of such transfer, in which Tenant has an interest, shall be delivered to
the grantee. The obligations contained in this Lease to be performed by
Landlord shall, subject as aforesaid, be binding on Landlord's successors and
assigns, only during their respective periods of ownership.
17. Severability.
The invalidity of any provision of this Lease as determined by a court
of competent jurisdiction shall in no way affect the validity of any other
provision hereof.
18. Interest on Past-Due Obligations.
Except as expressly herein provided, any amount due to Landlord not
paid when due shall bear interest at the maximum rate then allowable by law
from the date due. Payment of such interest shall not excuse or cure any
default by Tenant under this Lease; provided, however, that interest shall not
be payable on late charges incurred by Tenant nor on any amounts upon which
late charges are paid by Tenant.
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19. Additional Rent.
Any monetary obligations of Tenant to Landlord under the terms of this
Lease shall be deemed to be Additional Rent.
20. Incorporation of Prior Agreements; Amendments.
This Lease contains all agreements of the parties with
20
respect to any matter mentioned herein. No prior agreement or understanding
pertaining to any such matter shall be effective. This Lease may be modified
in writing only and signed by the parties in interest at the time of the
modification. Except as otherwise stated in this Lease, Tenant hereby
acknowledges that neither the real estate broker listed in section 14 hereof
nor any cooperating broker on this transaction nor the Landlord or any
employees or agents of any of said persons has made any oral or written
warranties or representations to Tenant relative to the condition or use by
Tenant or said Premises.
21. Notices.
Any notice required or permitted to be given hereunder shall be in
writing and may be given by express courier, personal delivery or by certified
mail, and shall be deemed sufficiently given if addressed to Tenant at the
address of the premises or to Landlord at the address noted next to the
signature of the Landlord. Either party may, by notice to the other, specify a
different address for notice purposes, except that upon Tenant's taking
possession of the Premises, the Premises shall constitute Tenant's address for
notice purposes. A copy of all notices required or permitted to be given to
Landlord hereunder shall be concurrently transmitted to such party or parties
at such addresses as Landlord may from time to time hereafter designate by
notice to Tenant.
22. Waivers.
No waiver by Landlord of any provision hereof shall be deemed a waiver
of any other provision hereof or of any subsequent breach by Tenant of the same
or any other provision. landlord's consent to, or approval of, any act shall
not be deemed to render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent
so accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
23. Holding Over.
If Tenant, with Landlord's consent, remains in possession of the
Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month. Al provisions of this Lease
shall apply to the holdover period. Al options and rights of first refusal, if
any, granted under the terms of this Lease shall be deemed terminated and be of
no further effect during said month-to-month tenancy.
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24. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
25. Covenants and Conditions.
Each provision of this Lease performable by Tenant or Landlord shall
be deemed both a covenant and condition.
26. Binding Effect; Choice of Law.
Subject to any provisions hereof restricting assignment or subletting
by Tenant, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
wherein the Premises are located.
27. Subordination.
(a) This Lease, at Landlord's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation or security
now or hereafter placed upon the real property of which the Premises are a part
and to any advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof. If any
mortgagee, trustee or ground landlord shall elect to have this Lease prior to
the lien of its mortgage, deed of trust or ground lease, and shall be deemed
prior to such mortgage, deed of trust, or ground lease, whether this Lease is
dated prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof.
28. Attorney's Fees.
If either party named herein brings an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action, on
trial or appeal, shall be entitled to his costs and reasonable attorney's fees,
including all appeals, to be paid by the losing party as fixed by the court.
22
29. Landlord's Access.
Landlord and Landlord's agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting the same, showing
the same to prospective purchasers, lenders or tenants, and making such
alterations, repairs, improvements or additions to the Premises as Landlord may
deem necessary or desirable. Landlord's right to inspect the Premises
includes, but is not limited to, the right to take samples and make such
environmental tests as Landlord may deem appropriate from time to time.
Landlord may at any time, place on or about the premises any ordinary "For
Sale" signs and Landlord may at any time during the last 120 days of the term
hereof place on or about the Premises any ordinary "For Lease" signs, all
without rebate of rent or liability to Tenant.
30. Auctions.
Tenant shall not conduct, nor permit to be conducted, whether
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Landlord's prior written consent. Notwithstanding anything to
the contrary in this Lease, Landlord shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
31. Signs.
Any and all signs placed on the exterior of the Premises, including
loading and unloading signs, name signs and number signs, shall be provided by
the Landlord at the Landlord's sole cost and expense and shall be in such form,
style and color as to conform to the standard used throughout the business park
of which the Premises are a part. Tenant is expressly prohibited from
displaying any signage not authorized by Landlord.
32. Merger.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, or a termination by Landlord, shall not work a merger,
and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
landlord of any or all such subtenancies.
33. Quite Possession.
Upon Tenant paying the rent for the Premises and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises subject to all of the provisions of this Lease. Landlord represents
and warrants to Tenant that the individuals executing this Lease on behalf of
Landlord are fully authorized and legally capable of executing
23
this lease on behalf of Landlord and that such execution is binding upon all
parties holding an ownership interest in the Premises.
34. Multiple Tenant Business Park.
Tenant agrees that it will abide by, keep and observe all reasonable
rules and regulations which Landlord may make from time to time for the
management, safety, care and cleanliness of the business park in which the
Premises are located, the parking of vehicles and the preservation of good order
therein as well as for the convenience of other occupants and tenants of the
business park in which the Premises are located.
35. Security Measures.
Tenant hereby acknowledges that the rental payable to Landlord
hereunder does not include the cost of guard service or other security measures,
and that Landlord shall have no obligation whatsoever to provide same. Tenant
assumes all responsibility for the protection of Tenant, its agents and invitees
from acts of third parties.
36. Easements.
Landlord reserves to itself the right, from time to time, to grant such
easements, rights, and decisions that Landlord deems necessary or desirable, and
to cause the recordation of site plans, parcel maps, restrictions and similar
instruments so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
24
Tenant. Tenant shall sign any of the aforementioned documents upon request of
Landlord and failure to do so shall constitute a material breach of this Lease.
37. Performance' Under Protest.
If at any time a dispute shall arise as to any amount or sum of money to be paid
by one party to the other under the provisions hereof, the party against whom
the obligation to pay the money is asserted shall have the right to make payment
"under protest" and such payment shall not be regarded as voluntary payment, and
there shall survive the right on the part to institute a suit for recovery of
such sum. If it shall be adjudged that there was no legal obligation on the part
of said party to pay such sum or any part thereof, said party shall be entitle
to recover such sum or so much thereof as it was not legally required to pay
under the provision of this Lease, plus court costs and reasonably attorney's
fees, which shall not exceed five percent (5%) of the sum in dispute.
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38. Authority.
If Tenant is a corporation, trust or general or limited partnership,
each individual executing this Lease on behalf of such entity represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said entity. If Tenant is a corporation, trust or partnership, tenant
shall, within thirty (30) days after execution of this Lease, deliver to
Landlord evidence of such authority satisfactory to Landlord.
39. Survival.
Each term, agreement, obligation or provision of this Lease to be
performed by Tenant shall be construed to be both a covenant and a condition,
all of which shall survive the expiration or termination of this Lease and any
renewals or extensions of this Lease.
40. Conflict.
Any conflict between the typewritten provisions of this Lease and the
handwritten provisions shall be controlled by the handwritten provisions.
41. Abandonment.
If Tenant shall abandon or vacate the premises before the end of the
term of this lease, Landlord may, at its option, cancel this Lease, or Landlord
may enter said Premises as the agent of Tenant, by force or otherwise, with or
without notice, without being liable in any way therefore, and relet the
26
Premises with or without any furniture or equipment that maybe therein, as the
agent of Tenant, at such price and upon such terms and for such duration of time
as Landlord may in its reasonable discretion determine, and receive the rent
therefore, applying the same to the payment of the rent due by these presents,
and if the full rental herein provided shall not be realized by Landlord over
and above the expenses to Landlord in such reletting, Tenant shall pay any
deficiency.
42. Assignment of Chattels.
Tenant hereby pledges and assigns to Landlord all of Tenant's rights in
the furniture, fixtures, goods and chattels of Tenant which shall or may be
brought or put on the Premises as security for the payment of said rent, and
Tenant agrees that said lien may be enforced by distress, foreclosure or
otherwise, at the election of Landlord. It is understood and agreed that any
merchandise, fixtures, furniture or equipment left in the Premises when Tenant
vacates shall be deemed to have been abandoned by Tenant and by such abandonment
Tenant automatically relinquishes any right or interest therein. Landlord is
authorized to sell, dispose of or destroy same. Tenant hereby irrevocably
appoints Landlord its agent for this purpose.
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43. Tenant's Improvements.
(a) Within five (5) days after the date hereof, Landlord will
deliver the Premises including a shell building, containing 8,485 square feet
(the "Building"), comprising a portion of the Premises, which shall be fully
enclosed with all required doors and windows in exterior walls, together with
exterior painting, roof tiles, electrical main service with capacity to handle
required load, parking, landscaping and irrigation and front walkways. Landlord
will also provide Tenant with architectural plans for the interior Improvements
(the "Improvements") to the Building, which plans will be attached hereto within
five (5) days from date hereof as Exhibit B.
(b) Tenant agrees that, upon taking possession of the Premises, it
shall cause its contractor (the "Contractor") to immediately apply for all
necessary permits and approvals for construction of the Improvements. Within
three (3) days after receipt of such permits and approvals, Tenant shall cause
the Contractor to commence construction of the Improvements.
(c) Prior to the commencement of construction of the Improvements,
Tenant shall record a Notice of Commencement in accordance with Section 713.13
of the Florida Statutes in the Clerk's Office of Broward County and post a
certified copy of such Notice of Commencement at the Premises. Tenant will
provide Landlord with a copy of the agreement between Tenant and Contractor for
the construction of the Improvements. Tenant will cause the Contractor to
provide Landlord with copies of the following: (a) all plans and specifications
approved by the necessary governmental authorities, (b) all permits and
approvals necessary for construction of the Improvements, (c) all
28
contracts between the Contractor and subcontractors, and (d) all other documents
as Landlord may reasonably request.
(d) Tenant shall cause Contractor to procure and maintain, at its
expense, during the construction of the Improvements, at least the following
insurance:
COVERAGE LIMITS
(a) Worker's Compensation Statutory
(a) Employer's Liability $1,000,000 each
occurrence
(a) Comprehensive General Liability $1,000,000 limit
combined single
(a) Comprehensive Automobile Liability $1,000,000 limit
combined single
Contractor shall not commence construction of
29
Improvements until it has presented Landlord with certificates of insurance
certifying that the above insurance policies are in effect at the required
limits and will remain in effect during the construction of the Improvements.
Landlord shall be named as an additional insured in all of the above liability
policies with a statement to that effect set forth in the certificates of
insurance.
(e) Tenant shall cause the Contractor to proceed diligently with the
construction of the Improvements and complete such construction in a timely and
good and workmanlike manner no later than ninety (90) days after the issuance of
a building permit for interior improvements by the Broward County Building
Department.
(f) Landlord agrees that it will pay the Contractor on behalf of Tenant for
the construction of the Improvements an amount not to exceed $32 per square foot
for such construction as hereinafter set forth. Tenant acknowledges that
improvements to only 7,111 square feet of the Building will be constructed
initially and that the amount of payment for such improvements by Landlord shall
be limited to $32 per square foot plus an additional amount of not to exceed
$16,488 (calculated on the basis of $12 per square foot for the remaining 1,374
square feet in the Building), or a total amount not to exceed $244,040 for such
improvements. The amount of payment by Landlord for construction of improvements
to the remaining 1,374 square feet in the Building shall be limited to $20 per
square foot or a total amount not to exceed $27,480. Tenant shall cause the
Contractor to provide Landlord with invoices for those completed portions of the
Improvements by the 25th day of each month. Following Landlord's inspection and
acceptance of that portion of the work for which payment is sought, Landlord
agrees to make payment to the
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Contractor, less a ten percent (10%) retainage, by the 15th day of the following
month. The Contractor shall provide Landlord with good and sufficient lien
waivers from the Contractor and, if Landlord requests, from any and all
subcontractors and sub-subcontractors, and every person, firm or corporation
furnishing labor or materials to the Contractor, any subcontractor, sub-
subcontractor. However, Landlord shall have not liability for the payment of any
amounts to any subcontractor, sub-subcontractor or anyone furnishing materials.
At the time of the issuance of a Certificate of Occupancy for any portion of the
Improvements, Landlord shall pay the Contractor any balance due, plus the ten
percent (10%) retainage, not to exceed the amounts set forth in this Section
43(f). In addition, the Contractor shall furnish Landlord with a complete final
waiver and release of its lien rights, and, if Landlord requests, with final
lien waivers and releases for all subcontractors, sub-subcontractors and every
person, firm or corporation furnishing labor or materials to the Contractor,
subcontractors or sub- subcontractors on account of any work done or materials
furnished, together with an affidavit complying with Section 713.06(d)(l) of the
Florida Statutes providing that the releases include all labor, materials,
supplies and services for which a lien can be filed and which affidavit
31
will show that all lienors have been paid in full, if that is the fact, or else
shall provide the name of each lienor who has not been paid in full and the
amount due or to become due to each lienor for labor, services or materials
furnished, in which event, Landlord may, after giving the Contractor ten (10)
days written notice, pay such outstanding bills for labor, services or materials
in full, jointly to the Contractor and the supplier of such. If there should
remain minor items to be completed, the Contractor and Landlord shall list such
items and the Contractor shall deliver in writing, his guarantee to complete
said items within time limits established by the Contractor and Landlord.
Landlord may retain a sum equal to 120% of the estimated cost of completing any
unfinished items, provided that said unfinished items are listed separately and
the estimated cost of completing any unfinished items are likewise listed.
44. Radon Gas.
Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
WITNESS, the parties hereto have executed this Lease on the
dates specified immediately below their respective signatures.
Notice Address: Landlord:
32
4501 N.W. 31st Avenue
Ft. Lauderdale, Florida 33309 REYNOLDS METAL
DEVELOPMENT
COMPANY
With a copy to:
6601 West Broad Street
By:_______________________________
P.O. Box 27003 D. Paul Bonevac
Richmond, Virginia 23261 Executive Vice President
Attention: Corporate Secretary
Date:______________________________
______________________________
Witness
______________________________
Witness
33
______________________________ By:
Witness
Title:
_________________________
______________________________ Date:
Witness
_________________________
jld
prop/dev
wingate
lease/final
34
FIRST ADDENDUM TO WINGATE COMMONS
BUSINESS PARK NET LEASE
This First Addendum to that certain Wingate Commons Business Park Net
Lease (the "Lease") dated September 27, 1991 by and between REYNOLDS METALS
DEVELOPMENT COMPANY, a Delaware corporation ("Landlord"), and LIFECARE
INVESTMENTS, INC., a Delaware corporation ("Tenant"), hereby modifies and
amends the lease to include the following:
1. Notwithstanding anything to the contrary contained in Section 3.1 of
the Lease, Tenant shall have the option of terminating this Lease at
the end of the tenth and the fifteenth Lease Year by giving Landlord
not less than ninety (90) days' prior written notice.
2. Sections 3.2 and 4.2 of the Lease are hereby deleted.
3. Notwithstanding anything to the contrary contained in Section 3.3 of
the Lease, Tenant shall not be required to pay Rent until the
Commencement Date.
4. Tenant shall have the option of purchasing the Premises during the
first five (5) Lease Years of the Lease at the purchase price set
forth below opposite the Lease Year in which the purchase is made (the
"Option Price"):
Lease Year 1 $ 1,185,150.00
Lease Year 2 $ 1,223,443.00
Lease Year 3 $ 1,284,700.00
Lease Year 4 $ 1,347,975.00
Lease Year 5 $ 1,351,241.00
Tenant shall exercise such option by giving written notice thereof to
Landlord. If Tenant exercises its option, closing shall occur within
sixty (60) days after the date of the exercise by Tenant of its option
and time is of the essence. Upon payment of the Option Price,
Landlord will convey the Premises to Tenant by warranty deed, subject
to any leases, easements, conditions and restrictions of record
affecting the Premises existing on the date of the exercise by Tenant
of its option. If Tenant does not exercise its option to purchase the
Premises or Tenant does not close the purchase within sixty (60) days
after the exercise by Tenant of its option to purchase the Premises
because of the fault of Tenant, Tenant's option to purchase the
Premises pursuant to this paragraph 4 shall expire and be of no
further force and effect.
5. Notwithstanding the provisions of paragraph 4 above, if Landlord,
during the first five (5) Lease Years, receives a bona fide offer to
purchase the Premises
35
from a third party (the "Third Party Offer"), Landlord shall so advise
Tenant by notice in writing setting forth the terms and conditions of
the Third Party Offer. For a period of ten (10) days after receipt of
said notice, Tenant shall have the option of purchasing the Premises
at the higher of the Option Price or the price specified in the Third
Party Offer by giving written notice thereof to Landlord. If Tenant
exercises its option under this paragraph 5, closing shall occur
within sixty (60) days after the date of the exercise by Tenant of its
option contained in this paragraph 5 and time is of the essence. Upon
payment of the Option Price or the price set forth in the Third Party
Offer, whichever is applicable, Landlord will convey the Premises to
Tenant by warranty deed, subject to any leases, easements, conditions
and restrictions of record affecting the Premises existing on the date
of the exercise by Tenant of its option to purchase the Premises
pursuant to this paragraph 5. If Tenant does not exercise its option
to purchase the Premises pursuant to this paragraph 5 within such ten
(10) day period by written notice to Landlord or Tenant does not close
the purchase within sixty (60) days after the exercise by Tenant of
its option to purchase the Premises pursuant to this paragraph 5
because of the fault of Tenant, Tenant's option to purchase the
Premises pursuant to paragraph 4 above or this paragraph 5 shall
expire and shall be of no further force and effect and Landlord may
proceed to sell the Premises to such third party on the terms and
conditions set forth in the Third Party Offer.
6. Notwithstanding anything to the contrary contained in Section 4 of the
Lease, the following shall be applicable to the payment of Monthly
Rent and Additional Rent during the periods set forth below:
(a) During the first two (2) months of the term of the Lease,
Tenant shall not be required to pay Monthly Rent. From the
third month through the tenth month of the term of the Lease,
the Monthly Rent payable by Tenant shall be reduced by fifty
percent (50%).
(b) The Monthly Rent shall not be adjusted pursuant to the
provisions of Section 4.1(b) of the Lease until after the
second Lease Year. Thereafter the provisions of Section 4.1(b)
of the Lease shall be applicable; provided, however, that the
Adjusted Monthly Rent shall not be increased (i) by more than
twenty percent (20%) during the first five (5) Lease Years,
using the Monthly Rent of $8,308.23 for the first Lease Year
as the base, (ii) by more than twenty percent (20%) during the
36
second five (5) Lease Years, using the Adjusted Monthly Rent
for the sixth Lease Year as the base, (iii) by more than
twenty percent (20%) during the third five (5) Lease Years
using the Adjusted Monthly Rent for the eleventh Lease Year as
the base, and (iv) by more than twenty percent (20%) during
the last five (5) Lease Years, using the Adjusted Monthly Rent
for the sixteenth Lease Year as the base.
7. It is hereby understood and acknowledged by Tenant that the Premises
is part of a business park known as Wingate Commons Business Park and
that the other tenants of the said business park together with their
customers, employees and invitees have mutual use of the Common Areas
including but not limited to all parking areas, driveways and roads
located in the park of which the Premises are a part and that Landlord
has the right to temporarily close any part of said Common Areas for
such period of time as is reasonably necessary to make repairs or
alterations to the Common Areas or to the buildings located adjacent
thereto. Accordingly, Tenant agrees to indemnify and save Landlord
harmless from and against any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees) in connection
with any injury to, or the death of, any person or any damage to or
loss of property resulting from the use of the aforesaid Common Areas
by others or the temporary closure of same by Landlord. Landlord will
give Tenant five (5) days' notice of any non-emergency repairs,
alterations or improvements and reasonable notice of emergency
repairs, alterations or improvements to be made to the Common Areas or
to the buildings located adjacent thereto which could restrict ingress
or egress to the Premises.
8. Notwithstanding anything to the contrary contained in Section 12 of
the Lease, Tenant shall have the right at the inception of the Lease
to sublease twenty-five percent (25%) of the Building to another third
party for use as executive offices. It is agreed that such third
party subleasing a portion of the Building for use as executive
offices may enter into additional subleases of parts of such portion
with others. Any other subleases not covered by this paragraph B
shall be subject to all the terms and provisions of Section 12 of the
Lease.
9. For purposes of Section 18 of the Lease, the term "maximum rate then
allowable by law" shall mean eighteen percent (18%) per annum.
37
Except as otherwise modified herein, the terms and conditions
contained in the Lease are in full force and effect.
Capitalized term when used herein and not otherwise defined herein
shall have the meanings assigned to them in the Lease.
38
Except as otherwise modified herein, the terms and conditions contained
in the Lease, as amended, are hereby ratified, confirmed and approved.
Capitalized terms when used herein and not otherwise defined herein
shall have the meanings assigned to them in the Lease.
IN WITNESS WHEREOF the parties have executed this Second Addendum on
the dates specified immediately below their respective signatures.
Landlord:
WITNESS: REYNOLDS METALS DEVELOPMENT
COMPANY
By:
D. Paul Bohevac
Executive Vice President
Date:
WITNESS: Tenant:
LIFECARE INVESTMENTS, INC.
By:
Title:
Date:
39
SECOND ADDENDUM TOWINGATE COMMONS
BUSINESS PARK NET LEASE
This Second Addendum to that certain Wingate Commons Business
Park Net Lease, dated September 27, 1991 (the "Lease"), by and between REYNOLDS
METALS DEVELOPMENT COMPANY, a Delaware corporation ("Landlord), and LIFECARE
INVESTMENTS, INC., a Delaware corporation ("Tenant), as amended by the First
Addendum to the Lease, hereby modifies and amends the Lease, as amended, as
follows:
1. Notwithstanding anything to the contrary contained in
Paragraph 6 of the First Addendum to the Lease, as amended
hereby, Tenant shall be required to pay to Landlord Tenant's
Share of Common Area maintenance charges and Real Property
Taxes and any other payments constituting Additional Rent
payable by Tenant under the Lease beginning with the
Commencement Date.
2. Section 4.1(a) of the Lease is hereby amended by increasing
the Annual Rent for the second twelve months of the term of
the Lease from $103,941.25 to $106,062.50 and the Monthly Rent
from $8,661.77 to $8,838.54.
3. Paragraph 6(a) of the First Addendum to the Lease is hereby
amended to read as follows:
"(a) During the first two (2) months of the term of the
Lease, Tenant shall not be required to pay Monthly
Rent. During the third and fourth months of the term
of the Lease, the Monthly Rent payable by Tenant
shall be reduced by fifty percent (50%)."
4. Section 43(f) of the Lease is hereby amended by adding the
following two sentences at the end thereof:
"Upon final completion of the Improvements, occupancy of the
Premises by Tenant and full compliance with the conditions set
forth above, if the amount paid by Landlord to Contractor
and/or any lienor on behalf of Tenant is less than $271,520,
Landlord shall pay to Tenant an amount equal to the difference
between $271,520 and the amount previously paid by Landlord
pursuant to this Section 43(f), which amount shall be used by
Tenant to pay for other business expenditures of Tenant. In
no event shall Landlord be required to
40
pay more than $271,520 pursuant to this Section 43(f)."
IN WITNESS WHEREOF, the parties have executed this First Addendum on
the dates specified immediately below their respective signatures.
Landlord:
REYNOLDS METALS DEVELOPMENT COMPANY
By:
------------------------------------
Witness D. Paul Bonevac
Executive Vice President
Date:
Witness
Tenant:
LIFECARE INVESTMENTS, INC.
By:
------------------------------------
Witness
Title:
Date: