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EXHIBIT 10.90
LEASE AGREEMENT
J. DOUGLAS BRANHAM, LANDLORD
COLONIAL CLAIMS CORPORATION, TENANT
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INDEX
Page No.
1. DEFINITIONS................................................................1
2. PREMISES...................................................................2
3. TERM.......................................................................2
4. RENT.......................................................................3
5. TENANT'S SHARE OF OPERATING COSTS..........................................4
6. SECURITY DEPOSIT...........................................................6
7. ADDITIONS AND ALTERATIONS..................................................7
8. PERMITTED USE..............................................................7
9. UTILITIES..................................................................8
10. INDEMNIFICATION; INSURANCE ................................................9
11. ASSIGNMENT OR SUBLETTING...................................................11
12. SIGNS; ADVERTISING.........................................................12
13. MAINTENANCE OF INTERIOR OF PREMISES........................................12
14. DAMAGE OR DESTRUCTION......................................................13
15. DEFAULTS...................................................................13
16. REMEDIES...................................................................15
17. LANDLORD'S RIGHT OF ENTRY..................................................16
18. NOTICES....................................................................16
19. TAXES ON TENANT'S PERSONAL PROPERTY
AND TAXES ASSESSED ON RENTALS.........................................16
20. COSTS OF COLLECTION........................................................17
21. PRIOR AGREEMENTS...........................................................17
22. FLOOR PLANS................................................................17
23. NO AUTOMATIC RENEWAL.......................................................18
24. BUILDING STANDARDS MANUAL..................................................18
25. TERMS AND HEADING..........................................................18
26. CONDEMNATION...............................................................18
27. SUBORDINATION TO MORTGAGES.................................................19
28. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.............................19
29. QUIET ENJOYMENT............................................................20
30. PARKING SPACES.............................................................20
31. LANDLORD'S RIGHT TO ALTER COMMON AREAS.....................................20
32. EXCULPATION................................................................21
33. SUCCESSORS AND ASSIGNS.....................................................21
34. SECURITY AGREEMENT.........................................................21
35. ATTORNEY'S FEES............................................................21
36. MECHANICS LIEN.............................................................21
37. RECORDATION................................................................22
38. RADON GAS..................................................................22
39. REAL ESTATE BROKER.........................................................22
EXHIBIT "A"........................................................FLOOR PLAN
EXHIBIT "B"......................................BUILDING RULES & REGULATIONS
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COLONIAL CATASTROPHE CLAIMS CORPORATION
LEASE AGREEMENT
THIS LEASE, made as of the _______ day of ____________, 19 , by and
between J. DOUGLAS BRANHAM hereinafter called the "Landlord", and Colonial
Claims Corporation, hereinafter referred to as the "Tenant";
WITNESSETH:
For and in consideration of the rents, covenants, agreements and
conditions hereinafter reserved, made and entered into on the part of the
Tenant to be paid, performed, and observed, it is hereby stipulated, covenanted
and agreed by and between the Landlord and the Tenant as follows:
1. DEFINITIONS:
As used in this Lease Agreement, the terms enumerated below as items
1.1 to 1.19 inclusive shall have only the meaning set forth in this section
unless the same shall be expressly modified, limited or expanded elsewhere in
the Lease Agreement, in which event, such modification, limitation and/or
expansion shall supersede the applicable terms 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 Standards Manual
1.2 Building:
Dunedin, Florida 33701
Legal description:
according to the Public Records of Pinellas County, Florida
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1.3 Premises or Demised Premises: As outlined on Exhibit A
1.4 Term: 5 years
1.5 Commencement Date: _______________, 1998
1.6 Termination Date: ______________, 2004
1.7 Base Rent: $13.50 per square foot
______ per annum
______ per month
1.8 Prepaid Rent: N/A
1.9 Rentable Area of Demised Premises ("Net Rentable Area"):
__________ square feet, MOL with option to lease an additional _________ square
feet, MOL.
1.10 Tenant's Proportionate Share of Operating Costs ("Proportionate
Share"): __________%
1.11 Tenant Improvement Allowance: N/A
1.12 Number of Parking Spaces which Tenant shall have:______________
1.13 Monthly Rental for parking spaces: No Charge
1.14 Security Deposit: N/A
1.15 Permitted Use: Office Use
1.16 Tenant's Address: _____________________________________________
_____________________________________________
_____________________________________________
1.17 Landlord's Address: J. Douglas Branham
147 Edgewater Drive
Dunedin, FL 34698
1.18 Guarantor: N/A
1.19 Expense Stop: Building operating costs, as defined in Section
5.1(a) herein, for calendar year ending December 31, 1999.
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2. PREMISES:
2.1 The Landlord does hereby let, demise and lease the Premises
to the Tenant, and the Tenant does hereby hire and take the Premises from the
Landlord for the Term of this Lease.
2.2 Tenant acknowledges that this Lease is made 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 same may hereafter be amended from time to time.
2.3 Tenant shall have the option, on sixty (60) days' prior
written notice, to lease any additional unleased space at the Premises which it
does not lease in this original Lease. Such rental shall be under the same
terms and conditions as set forth in this Lease.
3. TERM:
3.1 The 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. The Tenant has an option to renew this
Lease for three additional one (1) year periods by providing the Landlord with
notice to do so no more than six (6) months nor less than three (3) months
prior to the termination date of this Lease. Tenant's right to exercise this
option is based upon agreeing to pay rent at the time of the renewal equal to
5% over the rent paid for the then current term.
3.2 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 Employee").
3.3 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. No such delay
shall operate to extend the Term.
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4. RENT:
4.1 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
for the Premises. Said Annual Rent shall be paid in monthly installments equal
to the Monthly Rent. The Monthly Rent shall be due and payable in advance, on
or before the first day of each calendar month during the entire Term,
commencing with the first full calendar month of the Term; provided that Tenant
shall pay to the Landlord on the Commencement Date the prorated Monthly Rent
attributable to the month in which the Commencement Date occurs if the
Commencement Date is other than the first day of a month.
4.2 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 request which are not
required to be furnished by Landlord under this Lease without separate charge
or reimbursement.
4.3 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-five (365) day year. 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 office located in the Building, or to
such other person or at such other place as Landlord may from time to time
designate in writing. All rent shall be paid without prior demand, deduction,
setoff or counterclaim.
4.4 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 equal to the interest that accrues on said amount from the date the payment
was due until the date on which Landlord receives said payment, computed at the
rate of eighteen percent (18%) per annum.
4.5 Tenant shall pay to Landlord concurrently with the payment of
the Monthly Rent and other sums all Florida State Sales Tax and any other tax
which is applicable to such payment.
4.6 If Tenant does not lease 100% of the Premises, it shall pay an
additional $_________ per square foot that it does lease in recognition of
expense payment for common areas.
5. TENANT'S SHARE OF OPERATING COSTS:
5.1 In addition to Base Rent, Tenant shall pay Tenant's
percentage share as specified in paragraph 5.2 (f) of the "Building Operating
Costs" (as hereinafter defined),
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paid or incurred by Landlord in such year in excess of the Building Operating
Cost for the Base Year ("Operating Expenses Rent") which shall be the calendar
year ending December 31, 1999.
(a) The term "Building Operating Costs" include:
(i) All taxes, assessments, water and sewer charges and
other similar governmental charges levied on or attributable to the Building,
the Land, and the roads walks, plazas, landscaped areas, garages and parking
areas, common areas, improvements, and facilities thereon (collectively, the
"Property"), or its operation, including, but not limited to, general and
special real property taxes and assessments levied or assessed against the
Property, personal property taxes or assessments levied or assessed against the
Property, and any tax measured by gross rentals received from the Property,
together with any costs incurred by Landlord (including attorney's fees) in
contesting any such taxes, assessments or charges; but excluding any net
income, capital stock, estate or inheritance taxes imposed by the State of
Federal Government or by any agency, branch or department thereof; provided
that if at any time during the Term there shall be levied, assessed or imposed
on Landlord or the Property by any governmental entity, any general or special,
ad valorem or specific, excise, capital levy or other tax, assessment, levy or
charge directly on the rent received under this Lease (except as separately
paid to Landlord in accordance with Paragraph 4.6, above) or other leases
affecting the Property and/or any license fee, excise or sales tax, assessment,
levy or charge measured by or based, in whole or in part, upon such rents,
and/or transfer, transaction, or similar tax, assessment, levy or charge based
directly or indirectly upon the transaction represented by this Lease or other
leases affecting the Property, and/or occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or the Property, then all such taxes, assessments,
levies and charges shall be deemed to be included in the term "Building
Operating Costs"; plus
(ii) Operating costs of the Property consisting of any and
all costs incurred by Landlord in repairing, maintaining, insuring, and
operating the Property and all personal property of Landlord used on connection
therewith, including (without limiting the generality of the foregoing) the
following: all costs of repairs; all costs of utilities and public services
(including but not limited to electricity, gas, light and light bulbs, heating
and air conditioning, water, fuel, refuse, sewer, and telephone); all costs of
supplies, materials; all insurance costs (including but not limited to public
liability, extended coverage property damage and casualty, business
interruption, loss of rents, flood, earthquake, workman's compensation, with
companies and in amounts as determined by Landlord); licenses, permits,
inspection fees; costs of striping and paving parking areas and driveways;
painting; repair, maintenance and replacement of plumbing, roofing, elevator,
HVAC, electrical and other systems; repair, maintenance and replacement
(including reasonable reserves for depreciation and replacements) of all
improvements, both structural and non-structural; any costs of services of
independent contractors, security personnel, trash
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removal exterminator, landscaping, parking operations, and maintenance
personnel and costs of compensation (including employment taxes and fringe
benefits) of all persons who perform management, operation, maintenance, repair
and overhaul of the Property and equipment thereon used in connection
therewith, including, without limitation, full or part time building staff,
janitors, foremen, window washers, security personnel and gardeners; any costs
for contract maintenance of any or all of the above; and all legal, accounting
and other professional expenses in connection with the operation of the
Property.
(b) In the event any utilities or costs are separately metered
with respect to the Premises, Tenant shall pay monthly to Landlord the amount
of such separately metered utilities as reimbursement of these costs, and no
amounts representing the cost of separately metered utilities furnished to
Tenant shall be included in Building Operating Costs; provided, however, that
Tenant shall nevertheless pay its Proportionate Share of all other utilities
included under (a) hereinabove. If any other lessee of the Building so pays any
such separately metered utility or other costs or pays separately stated
personal property taxes, the amount so paid to Landlord shall be excluded from
Building Operating Costs.
5.2 The Rent Adjustment shall be payable by Tenant to Landlord in
accordance with the following:
(a) From time to time during the Term, Landlord shall notify
Tenant of Landlord's estimate of the Rent Adjustment for the twelve (12)
succeeding calendar months. Upon receipt of such notice, Tenant shall pay to
Landlord, during each of the succeeding twelve calendar months, one-twelfth
(1/12) of the estimated Rent Adjustment. If at any time during a year Landlord
determines that its estimate is incorrect by no less than 15%, Landlord may
notify Tenant of the revision of such estimate and thereafter for the remainder
of such twelve (12) months Tenant shall pay estimated Rent Adjustment based
upon such revision. On or before March 15th of each calendar year, Landlord
shall deliver to Tenant the actual statement of the amount of Building
Operating Costs for the preceding calendar year as well as Tenant's actual Rent
Adjustment based thereon. Any adjustments payable by Tenant, as shown on such
final statement, or any reduction in amount previously paid by Tenant, shall be
paid by, or reimbursed to Tenant, within fifteen (15) days from receipt of such
statement.
(b) Tenant shall have the right, at Tenant's expense, to perform
by May 15 of any year an audit of the Building Operating Costs of the preceding
calendar year as well as the calculations of Tenant's Proportionate Share
thereof. Alternatively, Landlord may at its sole discretion provide Tenant with
an audited statement of such expenses prepared by an independent Certified
Public Accountant.
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(c) In the event that Tenant shall fail to object prior to May 15
to any amounts set forth in the Statement of Rent Adjustment delivered by
Landlord, said statement shall be deemed binding, conclusive and final on all
parties.
(d) Notwithstanding anything to the contrary hereinabove,
Landlord's failure to timely deliver said notice and statements to Tenant shall
not constitute a waiver by Landlord nor a defense by Tenant toward payment of
amounts required to be paid to Landlord after receipt of written notice of said
amounts by Tenant. In the event Landlord delivers said statements after March
15, the May 15 objection date shall be extended by a like amount of time.
(e) If this Lease shall commence on any day other than the first
day of a month or terminate on a day other than the last day of a month, the
amount of any Rent Adjustment payable by Tenant for the month in which this
Lease commences or terminates shall be equitably prorated and shall be due and
payable within thirty (30) days of such commencement or termination.
(f) Tenant's Percentage Share of the Operating Expenses is the
proportion that the rentable square footage occupied by Tenant bears to the
total rentable square footage of the Building as determined by the Landlord.
6. SECURITY DEPOSIT: N/A
7. ADDITIONS AND ALTERATIONS:
No changes, alterations, improvements, or additions to the Premises
shall be made to or upon said Premises or any part thereof without the written
consent of the Landlord being first had and obtained. All changes, alterations,
additions and improvements made or placed in or upon the Premises by the
Landlord or 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. Any such changes, alterations, improvements, or
additions shall be done in conformity with the "Building Standards Manual"
furnished herewith as Exhibit "B", as well as with such other reasonable
requirements as Landlord may impose upon the granting of its written consent.
At Landlord's request at or prior to termination of the Term, Tenant shall
remove all or any part of any improvements made to the Premises.
8. PERMITTED USE:
8.1 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,
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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.
8.2 The Tenant 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 any way conflict with any law, ordinance, rule
or regulation now or hereafter in force or effect relating to the occupancy and
use of the Premises and said Property, or in any way obstruct or interfere with
the rights of other lessees 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, cooking therein, and nothing shall
be prepared, manufactured, or used in the Premises which might emit an odor
into the corridors of the building.
8.3 The Tenant will not, without the written consent of the Landlord,
use any apparatus, machinery, or equipment or device in, on or about the
Premises which may cause 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 Manual, and further, the
Tenant shall not connect with water any apparatus, machinery, equipment or
devise without the prior written consent of the Landlord. The Tenant shall, at
the Tenant's sole cost and expense, comply with all of the requirements of all
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 all municipal ordinances and regulations and state and federal
statutes and regulations now or hereafter in force and effect.
8.4 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; JANITORIAL SERVICES:
Subject to Tenant's obligation to pay rent under this Lease and
perform Tenant's other obligations, the Landlord agrees to furnish in
connection with the Premises, the following: electricity (commensurate with the
Landlord's electrical system and wiring in the building of which the Premises
are a part, supplying approximately 110 volts) for lights and other usual and
ordinary office purposes; replacement of ceiling light bulbs and tubes in the
fixtures provided by the Landlord; 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 as specified in the
Building Standards Manual; and provide for use in common of the elevators,
restrooms, and other like facilities of the Building. All said costs
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shall be included in Building Operating Costs. Landlord reserves the right to
establish special charges to be paid by Tenant for additional non-standard
services provided. 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 or 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 of such
items or services, nor shall any such failure relieve the Tenant from the duty
to pay the full amount of rent and other sums of money 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 INDEMNITY. Tenant agrees to indemnify, defend and save harmless
Landlord, Bankers Insurance Company, any property manager(s) engaged by Landlord
or Bankers Insurance Company and each of their affiliated companies, partners,
shareholders, agents, directors, officers, and employees (collectively,
"Indemnitees") from and against any and all liabilities, damages, claims,
suits, injuries, costs (including court costs, attorneys' fees and costs of
investigation, and actions of any kind arising or alleged to arise by reason of
injury to or death of any person or damage to or loss of property occurring on,
in, or about the Leased Premises or by reason of any other claim whatsoever of
any person or party occasioned or alleged to be occasioned in whole or in part
by any act or omission on the part of Tenant or any invitee, licensee, agent,
employee, director, officer, contractor, subcontractor, or tenant of Tenant, or
by any breach, violation, or nonperformance of any covenant of Tenant under
this Lease (collectively "Liabilities") even if such Liabilities arise from or
are attributed to the concurrent negligence of any Indemnitee. The only
Liabilities with respect to which Tenant's obligation to indemnify the
Indemnitees does not apply is with respect to Liabilities resulting from the
sole negligence or willful misconduct of an Indemnitee. If any action or
proceeding is brought by or against any Indemnitee in connection with any such
Liabilities, Tenant shall defend such action or proceeding, at Tenant's
expense, by or through attorneys reasonable satisfactory to Landlord. The
provisions of this paragraph apply to all activities of Tenant with respect to
the Leased Premises or Building, whether occurring before or after the
Commencement Date of the Term and before or after the expiration or termination
of this Lease. Tenant's obligations under this paragraph are not limited to the
limits or coverage of insurance maintained or required to be maintained by
Tenant under this Lease.
10.2 TENANT'S INSURANCE. Tenant shall, at its sole expense, maintain
in effect at all times during the Term, insurance coverage with limits not less
than those set forth
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below with insurers reasonably acceptable to Landlord and which are licensed to
do business in the State in which the Building is located.
Insurance Minimum Limits
--------- --------------
A. Workers' Compensation
Workers' Compensation Statutory
Employer's Liability $500,000
This policy shall include a Waiver of Subrogation in favor of the
Indemnitees.
B. Commercial General Liability
Bodily Injury/ 1,000,000 each occurrence,
Property Damage or equivalent, subject to
(Occurrence Basis) a $1,000,000 aggregate
This policy shall be on a form acceptable to Landlord, endorsed to
include the Indemnitees as additional insured, contain cross-liability
and severability of interest endorsements, state that this insurance
is primary insurance as regards any other insurance carried by any
Indemnitee, and shall include the following coverages:
(1) Premises/Operations;
(2) Independent Contractors;
(3) Broad Form Contractual Liability specifically in support of,
but not limited to, the Indemnity sections of this Lease; and
(4) Personal Injury Liability with employee and contractual exclusions
removed.
Evidence of these coverages represented by Certificates of Insurance issued by
the insurance carrier must be furnished to the Landlord prior to Tenant moving
in. Certificates of Insurance shall specify the additional insured status
mentioned above as well as the Waivers of Subrogation. Such Certificate of
Insurance shall state that Landlord will be notified in writing thirty (30)
days prior to cancellation, material change, or non-renewal of insurance. If
Tenant does not procure insurance as required hereunder, Landlord may, upon
advance written notice to Tenant, cause such insurance to be issued, and Tenant
shall pay to Landlord the premium of such insurance within ten (10) days of
Landlord's demand, plus interest at the highest lawful rate for a loan of like
amount from the date of payment by Landlord until repaid by Tenant. Upon the
request of Landlord, Tenant shall provide Landlord with certified copies of any
and all applicable insurance policies.
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10.3 WAIVER OF LIABILITY. No Indemnitee will be liable in any manner
to Tenant or any other party claiming by through or under Tenant for any injury
to or death of persons unless caused by the sole negligence or willful
misconduct of an Indemnitee. In no event will any Indemnitee be liable in any
manner to Tenant or any other party as the result of the acts or omissions of
Tenant, its invitees, licensees, agents, employees, directors, officers,
contractors, subcontractors, or tenants of Tenant, or any other tenant of the
Building. All personal property upon the Leased Premises is at the risk of
Tenant only and no Indemnitees will be liable for any damage thereto or theft
thereof, regardless of whether such property is entrusted to employees of the
Building, or such loss or damage is occasioned by casualty, theft, or any other
cause of whatsoever nature, even if due in whole or in part to the negligence
of any Indemnitee.
10.4 WAIVER OF SUBROGATION. Notwithstanding anything herein to the
contrary, no party will have any right or claim against any Indemnitee for any
property damage (whether caused, in whole or in part, by negligence or the
condition of the Leased Premises or the Building or any part thereof) by way of
subrogation or assignment, Tenant hereby waiving and relinquishing any such
right. To the extent Tenant chooses to insure its property, Tenant shall
request its insurance carrier to endorse all applicable policies waiving the
carrier's right of recovery under subrogation or otherwise in favor of any
Indemnitee and provide Landlord with a certificate of insurance verifying this
waiver.
Landlord hereby waives and relinquishes any right or claim against Tenant for
damage to the Leased Premises or the Building by way of subrogation or
assignment, to the extent covered by insurance proceeds. Landlord shall request
its insurance carrier to endorse all applicable policies waiving the carrier's
right of recovery under subrogation or otherwise in favor of Tenant and a
certificate of insurance will be made available at the request of the Tenant.
11. ASSIGNMENT OR SUBLETTING:
11.1 The Tenant shall not sell, assign, transfer, mortgage,
hypothecate or otherwise encumber this Lease or the leasehold interest granted
hereby, or any 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 employees
and business invitees, or sublet the premises, or any part thereof, without the
written consent of the Landlord in Landlord's sole discretion in each such case
being first had and obtained; and 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 other
sums of money herein specified and for compliance with all of the obligations
of the Tenant under the terms, provisions and covenants of the Lease. If Tenant
is a corporation, unincorporated association, trust or general or limited
partnership, the sale, assignment, transfer or hypothecation of any stock or
other ownership interest of such entity which from
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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
Paragraph 11.1.
11.2 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.
11.3 Any act described in Section 11.1 which is done without the
consent of the Landlord shall be null and void and shall be an Event of
Default.
11.4 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, or on any exterior windows in said Building, or elsewhere within
the Premises so as to be visible from the exterior of said Building, or on the
interior walls or partitions, including doorways, of the Premises, 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 (and
the Landlord shall have the right to specify the size, design, content,
materials to be used and locations upon the door of any such materials and
letter); and the Tenant shall not place or maintain, nor permit the placing or
maintaining, and shall promptly remove any that may be placed by Tenant, of any
awnings or other structure or material or machinery or equipment of any kind
whatsoever on the exterior or extending to the exterior of the Building, or on
the outside (that is to say, the side not facing inward toward the interior of
the Premises) of any interior wall or partition separating the Premises from
other portions or areas of said Building.
13. MAINTENANCE OF INTERIOR OF PREMISES:
The Tenant shall take good care of the Premises and shall, at the
Tenant's own cost and expenses, keep in good sanitary condition and repair and
shall promptly make all repairs to the same to the satisfaction of the
Landlord, except for usual and ordinary wear and tear by reasonable use and
occupancy or fire or other casualty; and at the end or other
15
expiration of the Term, shall deliver up the Premises in the same condition as
received, ordinary wear and tear by ordinary use thereof, fire and other
casualty only 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 rent. 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.
14. DAMAGE OR DESTRUCTION:
If the Building is, without fault of the Tenant, damaged by fire or
other peril to the extent that the entire Demised Premises are rendered
untenantable and cannot be reasonably rendered in as good a condition as
existed prior to the damage within one hundred eighty (180) days from the date
of such damage, 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 a termination of the Term of this Lease as above provided,
then if such damage is not caused by Tenant or Tenant's agents, employees,
guests or invitees, a proportionate reduction shall be made in the rent herein
reserved corresponding to the time during which and to the portions of the
Premises of which the Tenant shall hereby be deprived of possession. The Tenant
agrees that Landlord shall not be responsible or liable for any loss due to
business interruption occasioned by such fire, casualty or other cause which
renders the Premises untenantable nor shall Landlord be liable for any damage
to Tenant's 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. DEFAULTS:
15.1 Each and any of the following shall be deemed an "Event of
Default" by Tenant and a material breach of the Lease:
(a) Tenant's failure to pay the Monthly Rent or any other sum
payable by Tenant hereunder as and when such payment is due and such failure
shall continue for ten (10) days after written notice by Landlord to Tenant of
such failure;
(b) Tenant's failure to observe, keep or perform any of the
other terms, covenants, agreements or conditions under this Lease, including,
without limitation, the Building Standards Manual, that Tenant is obligated to
observe or perform and said failure continues for a period of ten (10) days
after written notice by Landlord; provided that if the nature of Tenant's
default is such that it cannot be cured solely by the payment of money and that
more than ten (10) days are reasonably required for its cure, then Tenant shall
not
16
be in default hereunder if it shall commence the correction of such default
within said ten (10) day period and shall diligently prosecute the same to
completion;
(c) Tenant's vacation or abandonment of the Premises;
(d) (i) Tenant's (or general partner of Tenant, if Tenant is a
partnership) making an assignment for the benefit of creditors; or
(ii) A custodian, trustee, receiver or agent being appointed
or taking possession of all or substantially all of property of Tenant (or a
general partner of Tenant); or
(iii) Tenant's failure to pay Tenant's debts as such debts
become due; or
(iv) Tenant's (or a general partner of Tenant) becoming
"insolvent" as that term is defined in Section 101(26) of the "Revised
Bankruptcy Act" (Title II of the United States Code; II U.S.C. &101 et seq.);
or
(v) Tenant's (or a general partner of Tenant (a) filing of a
petition with the bankruptcy court under the Revised Bankruptcy Act, or (b)
otherwise filing any petition or applying to any tribunal for appointment of a
custodian, trustee or receiver of Tenant (or of a general partner of Tenant) or
commencing any proceeding relating to Tenant (or a general partner of Tenant)
under any bankruptcy or reorganization statute or under any arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect; or
(vi) Any petition being filed against Tenant (or a general
partner of Tenant) under the Revised Bankruptcy Act and either (A) the
bankruptcy court orders relief against Tenant (or a general partner of Tenant)
under the chapter of the Revised Bankruptcy Act under which the petition was
filed, or (B) such petition is not dismissed by the bankruptcy court within
sixty (60) days of the date of filing; or
(vii) Any petition or application of the type described in
subparagraph (v)(b), above, filed against Tenant (or a general partner of
Tenant), or any proceeding of the type described in subparagraph (v)(b), above,
is commenced, and either (a) Tenant (or a general partner of Tenant) by any act
indicates its approval thereof, consent thereto, or acquiescence therein, or
(b) an order is entered appointing any such custodian, trustee, receiver or
agent, adjudicating Tenant (or a general partner of Tenant) bankrupt or
insolvent, or approving such petition or application in any such proceeding,
and any such order remains in effect for more than sixty (60) days; or
17
(e) Any guarantor of this Lease defaulting under any guaranty
of this Lease, or attempting to repudiate or revoke any such guaranty or any
obligation under such guaranty; or the occurrence of any event described in
Paragraph 15(d), above, with respect to any guarantor of this Lease (as if
Paragraph 15(d) referred to such guarantor in place of "Tenant"); or
(f) The liquidation, dissolution, failure to exist or
disqualification of Tenant.
15.2 Landlord shall have the right, but not the obligation, to cure
any of Tenant's defaults under this Lease, in which event Tenant shall
forthwith reimburse Landlord all costs thereof, including any attorneys' fees,
together with interest from the date expended until the date repaid at the rate
of eighteen percent (18%) per annum. No exercise of this right shall be deemed
to be an acceptance of such default or a waiver thereof.
16. REMEDIES:
16.1 Upon the occurrence of an Event of Default hereunder, Landlord
may at any time thereafter, without notice or demand except as stated hereafter
and without limiting Landlord in the exercise of any other right or remedy
which Landlord may have by reason of such default or breach:
(a) Enter upon and take possession of the Premises. In such
event, Landlord shall have the right to remove all persons and property from
the Premises and store such property in a public warehouse or elsewhere at the
cost and risk of and for the account of Tenant, and all such persons shall quit
and surrender possession of the Premises to Landlord. Tenant hereby waives all
claims for damages which may be caused by the entry of Landlord and taking
possession of the Premises or removing and storing the furniture and property
and hereby agrees to indemnify and save Landlord harmless from any loss, costs,
damages or liability occasioned thereby, and no such entry shall be considered
or construed to be forcible entry or construed to be a termination of the Lease
unless Landlord expressly elects to terminate this Lease. Should Landlord elect
to enter, as hereby provided, or should Landlord take possession pursuant to
legal proceedings or pursuant to any notice provided by law, Landlord may then
or at any time thereafter terminate this Lease pursuant to Paragraph 16.1(c),
below:
(b) Tenant and each and every subtenant and assignee of Tenant
shall remain and continue liable for the equivalent of the rent and other
charges herein reserved and required by the Tenant to be paid and met until the
expiration of this Lease and for any and all loss or damage, including all fees
and expenses and attorneys' fees which the Landlord may sustain or incur by
reason of any such event, and the Landlord may relet all or any part of the
Premises at such price and upon such terms and for such duration of time as the
Landlord may determine in the name of the Landlord or as agent of the Tenant,
or otherwise, and receive the rent therefor and apply the same first to the
payment of such
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expenses and fees as the Landlord may have incurred in entering, dispossessing
and in letting, including among others all expenses of the Landlord reasonably
incurred in putting the Premises in proper condition (including tenant
improvements) and then to the payment of the rent and other charges reserved
hereunder and the fulfillment of the Tenant's covenants hereunder, the Tenant
and any subtenant of the Tenant and assignee of the Tenant shall remain liable
for any deficiency. Acts of maintenance, efforts to relet the Premises, or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of this Lease,
unless and until Landlord expressly elects in writing to terminate this Lease;
(c) Terminate this Lease and all rights of Tenant therein and
recover from Tenant in an action of all of the damages suffered or to be
suffered by Landlord, including the damages and costs described in subparagraph
(b) above; and
(d) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the State of Florida.
16.2 Acceptance by the Landlord of any rent after the same has become
due an payable shall not constitute a waiver by the Landlord of any rights
which the Landlord may have under the terms of this Lease in the event of a
default with respect to any other payment of rent.
16.3 The Landlord's rights and remedies under this Lease shall be
cumulative, and shall not be exhausted by one exercise thereof, and shall not
exclude any other rights and remedies authorized, provided or permitted by law.
No failure or omission on the part of the Landlord promptly to exercise or
insist upon any of its rights hereunder shall operate as a waiver of any such
rights; and no waiver on the part of the Landlord of any breach or default or
lack of prompt or full and complete performance or compliance by the Tenant
hereunder shall operate as a waiver of any subsequent breach or default or lack
of prompt and full performance or compliance.
17. LANDLORD'S RIGHT OF ENTRY:
The Tenant agrees that the Landlord, or its officers, agents,
servants, and employees, may enter said Premises at any hour to protect the
same against the elements, or 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.
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18. NOTICES:
Any bill, statement, notice or communication which the Landlord may
desire or be required to give to the Tenant shall be deemed sufficiently given
and rendered if, in writing, delivered to the Tenant personally, or sent by
registered or certified mail addressed to the Tenant at the Building or left at
the Premises addressed to the Tenant, and the time of the rendition of such
bill, statement, or notice shall be deemed to be the time when the same is
mailed to the Tenant, or delivered, or left at the Premises 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 U.S. mail, postage prepaid, certified return receipt
requested.
19. TAXES ON TENANT'S PERSONAL PROPERTY AND TAXES ASSESSED ON RENTALS:
19.1 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 said 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 In addition to the rent hereinabove provided for, 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.
20. COSTS OF COLLECTION:
The Tenant shall promptly pay to the Landlord all costs and expenses
of enforcement of this Lease and of collection, including a reasonable
attorney's fee, including on appeal, 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 thereof, becomes due; and the Tenant further agrees to pay all
reasonable costs and expenses, including a reasonable attorney's fee including
on appeal, 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.
20
21. PRIOR AGREEMENTS:
This agreement 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 the Lease or any
terms or provisions of the 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 the 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, such as Exhibit "A", 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 shall be subordinate to any specific terms contained in this
Lease. Attached to the construction plans for the tenant improvements shall be
a specification sheet stating in detail the finishes to be used in the demised
premises. Both Landlord and Tenant shall initial the construction plans and
specifications indicating this approval of the terms contained therein.
Construction of the tenant improvements by contract shall be the responsibility
of the Landlord and any cost in excess of the Tenant Improvement Allowance
shall be the Tenant's responsibility. If Tenant requests any Change Orders that
create cost over and above the original scope of work then Tenant shall be
responsible for that additional cost. Tenant has inspected the Premises and the
Building and has verified the dimensions thereof to the satisfaction of the
Tenant; and the Tenant has inspected and is familiar with the condition of the
elevators, stairways, halls, air conditioning system and facilities; and
sanitary facilities of the Building and the Tenant agrees to accept the
Premises.
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 and, if Tenant does so with Landlord's consent, same
shall be a tenancy from month-to-month terminable at will by either Landlord or
Tenant.
24. BUILDING STANDARDS MANUAL:
By the execution of this Lease, the Tenant accepts and agrees to abide
by, and to instruct the Tenant's employees to abide by all provisions of the
"Building Standards
21
Manual" and any modifications or additions made thereto from time to time
during the term of this Lease. The initial set of these regulations is attached
as the "Building Standards Manual" (Exhibit "B").
25. TERMS AND HEADING:
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 nave no effect upon the construction of 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 and 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 therewith.
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 therefore 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
such mortgages, deeds of trust, ground or underlying leases and in the event
that the Tenant shall refuse, after reasonable notice, 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 and in the event that the Tenant shall
refuse, after reasonable notice, to execute such instrument or instruments, 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 Lessor'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 Tenant hereunder.
22
28. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS:
28.1 Within fifteen (15) days after request of Landlord, Tenant shall
deliver to Landlord a duly executed certificate stating the Termination Date,
the Monthly Rent, the amount of any prepaid rent and security deposits, 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 be conclusive evidence that the
Termination Date and Monthly Rent are as set forth herein, no rent has been
paid in advance, there is no security deposit, and that there are no
modifications or Landlord's defaults. Such certificate will be relied on by
Landlord, prospective lenders or prospective purchasers.
28.2 During the term of Lease and any extensions thereto, Tenant 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. If Tenant's corporate parent is a company which is
required to make periodic reports to the Securities and Exchange Commission, a
copy of Tenant's corporate parent most recent publicly disclosed financial
statements 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 of this Lease.
30. PARKING SPACES:
Landlord shall provide Tenant at no additional charge ____ parking
spaces for every 1,000 square feet, or fraction thereof, rented.
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 location of entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets, or other
common areas of the Building or the complex without liability to Tenant.
23
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 on the part of the partners of
Landlord with respect to any of the terms, covenants and conditions of this
Lease, and Tenant shall look solely to the equity of Landlord 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.
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 assigns.
34. SECURITY AGREEMENT:
Tenant hereby grants to the Landlord a security interest under the
uniform commercial code as adopted by the State of Florida in all the furniture
and fixtures, goods and chattels of the said Tenant now owned or hereafter
required, which may be brought or put on said premises, as security for the
payment of rent herein reserved, and agrees that said security interest as well
as the Florida Statutory Landlord's lien for the payment of said rent may be
enforced by distress, foreclosure or otherwise, at the option of the said
Landlord, and Tenant agrees that such lien is granted to the Landlord and
vested in said Landlord.
35. ATTORNEY'S FEES:
Tenant further agrees that in case of the failure of said Tenant to
pay the rent herein reserved when the same shall become due, and it becomes
necessary for the Landlord to collect said 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 a reasonable 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.
36. MECHANICS LIEN:
24
The Tenant shall have no authority to incur, create or permit, and
shall not incur, create, permit or suffer, any lien for labor or materials or
services to attach to the interest or estate of either the Landlord or the
Tenant in the Demised Premises or in the building or other real estate of which
the Demised Premises form a part; and neither the Tenant nor anyone claiming
by, through or under the Tenant, shall have any right to file or place any
labor or material lien of any kind or character whatsoever or any mechanics
lien or other lien of any kind, upon the Demised Premises or the building or
other real estate of which the Demised Premises form a part, so as to encumber
or affect the title of the Landlord, and all persons contracting with the
Tenant directly or indirectly, or with any person who in turn is contracting
with the Tenant, for the erection, construction, installation, alteration or
repair of the demised premises or any improvements therein or thereon,
including fixtures and equipment, and all material-men, contractors, mechanics,
laborers, architects, from the date of this instrument, they and each of them
must look to the Tenant only to secure the payment of any bills or charges or
claims for work done, or materials furnished, or services rendered or performed
during the term hereby demised.
37. RECORDATION:
This Lease shall not be recorded.
38. RADON GAS:
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risk to
persons who are exposed to it over time. Levels or radon that exceed Federal
and State Guidelines have been found in buildings in Florida. Additional
information may be obtained from your county public health unit.
39. REAL ESTATE BROKER:
Tenant represents and warrants to Landlord that no broker, agent,
commission salesman or other person has represented Tenant in the negotiations
for or procurement of this Lease and of the Premises and Tenant does and shall
agree to indemnify and hold Landlord harmless from and against any and all
loss, cost, damage, claim and demand, meritorious or otherwise, for or from any
fees, commissions, payments or expenses due or alleged to be due to any broker,
agent, commission salesman or other person purporting to represent Tenant in
connection with this Lease, the premises, or the negotiations therefore.
25
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease
as of the day and year first above written.
WITNESS: LANDLORD:
- -----------------------------------
- ----------------------------------- ----------------------------------
J. DOUGLAS BRANHAM
Date:
--------------------------------
WITNESS: TENANT:
COLONIAL CLAIMS CORPORATION
- -----------------------------------
By:
- ----------------------------------- ----------------------------------
Date:
--------------------------------