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<PAGE>
Exhibit 10.46
(WATERFORD LOGO)
AT BLUE LAGOON
MIAMI, FLORIDA
LEASE AGREEMENT
FOR
OFFICE FACILITIES
TENANT: ORAL HEALTH SERVICES OF FLORIDA, INC.
SUITE: 400 & 325
SQUARE FEET: 15,969
TERM: SIX (6) YEARS
LEASE EXECUTION DATE: April 6, 1995
LEASE COMMENCEMENT DATE: MAY 15, 1995
RENTAL COMMENCEMENT DATE: MAY 15, 1995
<PAGE>
LEASE INDEX
<TABLE>
<CAPTION>
NUMBER ITEM PAGE
------ ---- -----
<S> <C>
1 DEFINITIONS....................................................
1-2
2 LEASE GRANT....................................................
2
3 LEASE TERM.....................................................
2
4 USE............................................................
2-3
5 BASE RENTAL....................................................
3
6 SERVICES TO BE FURNISHED BY LANDLORD...........................
3-4
7 IMPROVEMENTS TO BE MADE BY LANDLORD............................
4
8 GRAPHICS.......................................................
5
9 CARE OF THE PREMISES BY TENANT.................................
5
10 REPAIRS AND ALTERATIONS BY TENANT..............................
5
11 USE OF ELECTRICAL SERVICES BY TENANT...........................
5
12 PARKING........................................................
5-6
13 LAWS, REGULATIONS AND RULES....................................
6
14 ENTRY BY LANDLORD..............................................
6
15 ASSIGNMENT AND SUBLETTING......................................
6-7
16 MECHANIC'S LIEN................................................
7
17 PROPERTY INSURANCE.............................................
7-8
18 LIABILITY INSURANCE............................................
8
19 ASSUMPTION OF RISK.............................................
8
20 CASUALTY DAMAGE................................................
8-9
21 CONDEMNATION...................................................
9-10
22 DAMAGES FROM CERTAIN CAUSES....................................
10
23 EVENTS OF DEFAULT/REMEDIES.....................................
10-11
24 OPERATING EXPENSES.............................................
11-14
25 PEACEFUL ENJOYMENT.............................................
14
26 RELOCATION.....................................................
14
27 HOLDING OVER...................................................
14
28 SUBORDINATION TO MORTGAGE......................................
15
29 LANDLORD'S LIEN................................................
15-16
30 ATTORNEY'S FEES................................................
16
31 NO IMPLIED WAIVER..............................................
16
32 PERSONAL LIABILITY.............................................
16
33 SECURITY DEPOSIT...............................................
16-17
34 FORCE MAJEURE..................................................
17
35 RELATIONSHIP OF PARTIES........................................
17
36 HAZARDOUS MATERIAL.............................................
17
37 RADON..........................................................
17
38 LIGHT AND VIEW.................................................
17
39 MISCELLANEOUS..................................................
17-19
40 WAIVER BY TENANT...............................................
19-20
SIGNATURE PAGE.................................................
21
</TABLE>
LEGAL DESCRIPTION........................................ EXHIBIT
"A"
FLOOR PLAN............................................... EXHIBIT
"B"
ANNUAL RENT ADJUSTMENT................................... EXHIBIT
"C"
WORK LETTER AGREEMENT.................................... EXHIBIT
"D"
RULES AND REGULATIONS.................................... EXHIBIT
"E"
(i)
<PAGE>
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into on the
6th day of
april, 1995, between WRC PROPERTIES, INC. ("Landlord") and Oral
Health Services
of Florida, Inc. ("Tenant").
WITNESSETH:
1. DEFINITIONS.
1.1 The "Building" means the office building and related parking
areas
known as 5775 Waterford, located at 5775 Blue Lagoon Drive, Miami,
Florida
33126. The legal description of the Building is attached as Exhibit
"A".
1.2 "Premises" means the suite of offices known as Suite 400 and
325
located within the Building. The Premises are depicted and outlined
on the floor
plan attached as Exhibit "B". The Premises are stipulated for all
purposes to
contain approximately 15,969 square feet of "Net Rentable Area" (as
defined
below). In addition to said 15,969 square feet "Premises", Landlord
will use
reasonable efforts to make available for Tenant's lease an
additional 1,970
square feet on the third floor of the Building (Suite 330) ninety
(90) days
after the present lease thereon expires (July 30, 1995) or sooner
of possible.
When Suite 330 is made available for Tenant's occupancy the same
shall become
part of the "Premises" as defined in the lease and subject to all
terms,
conditions, and covenants of the Lease.
1.3 "Base Rental" or "Base Rent" means the sum of two hundred
ninety
two thousand eight hundred seventy-one and 46/100 dollars
($292,871.46) per
annum, as adjusted pursuant to Exhibit "C" attached hereto. Tenant
shall be
entitled to a full abatement of Base Rent for Suite 400 (14,976
rentable square
feet) for the months of May, 2000, and the first fifteen (15) days
of June,
2000, subject to Tenant not being in default under the Lease.
The Base Rental for Suite 330, when the same is available for
Tenant's
occupancy, shall be at the rate of $18.34 per rentable square foot
subject to
adjustement pursuant to Exhibit "C" of the Lease.
1.4 "Additional Rental" or "Additional Rent" means Tenant's
Proportionate Share of the Operating Expenses that exceed $7.50,
per net
rentable square foot for any calendar year during the Lease Term as
further
defined and described in Paragraph 24 hereof. "Additional Rent" or
"Additional
Rental" may also refer to other costs including those referred to
in Paragraph.
7, Paragraph 10.2 and Paragraph 16.2, Paragraph 17 and Paragraph
18.
1.5 "Commencement Date" means the earlier of (i) May 15, 1995, or
(ii)
the date on which Tenant actually occupies the Premises, provided
however the
Commencement Date shall not occur until the improvements to Suite
325 have been
substantially completed and there has been the inssuance of a
Permanent
Certifiacte or Completion or final approval by the applicable
agencies of Dade
County for the Premises.
1.6 "Lease Term" means a term commencing on the Commencement Date
and
continuing for a period of seventy-two (72) months thereafter. The
term of the
Lease as to Suite 330 (if the same becomes available) shall
commence on the
occupancy by the Tenant of such space and expire simultaneously
with the term of
the Lease.
<PAGE>
1.7 "Security Deposit" means the sum of $17,890.38, to be
deposited
with Landlord at the time of execution hereof.
1.8 "Common Areas" means those areas devoted to corridors,
elevator
foyers, restrooms, mechanical rooms, lobbies, janitorial closets,
electrical and
telephone closets, vending areas and other similar facilities
provided for the
common use or benefit of tenants generally and/or the public.
1.9 "Service Areas" means those areas within the outside walls
used
for elevator mechanical rooms, building stairs, fire towers,
elevator shafts,
flues, vents, stacks, pipe shafts and vertical ducts and other
penetrations (but
shall not include any such areas for the exclusive use of a
particular tenant).
1.10 "Net Rentable Area" of the Premises shall mean the gross
area
within the inside surface of the outer glass of the exterior walls,
to the
mid-point of any walls separating portions of the Premises from
those of
adjacent tenants and to the finished side of Common Area and
Service Areas walls
separating the premises, subject to the following:
Net Rentable Area shall not include any Service Areas. Net
Rentable
Area shall include Tenant's pro rata part of the Common Areas
within
the Building, based upon the ratio of the Net Rentable Area within
the
Premises to the total Net Rentable Area within the Building,
both
determined without regard to the Common Areas.
The Net Rentable Area in the Building is 58,535 square feet. The
above set forth
estimate of Net Rentable Area within the Premises may be revised,
at Landlord's
election, if an inspection reveals such estimate to be inaccurate
in any
material degree.
1.11 "Exterior Common Areas" means the portion of the property
(and
other tracts of real property comprising the multi-building project
in the event
the Building is located in such a project) which are not located
within the
Building (or other Building in a multi-building project) and which
are provided
and maintained for the common use and benefit of Landlord and
tenants of the
Building (or multi-building project) generally and the employees,
invitees and
licensees of Landlord and such tenants' including without
limitation, all
parking areas, enclosed or otherwise, and all streets, sidewalks
and landscaped
areas.
1.12 "Building Standard" means the quality, amount, level of
performance or standards, as the case may be, as established in the
Building
Rules and Regulations attached hereto as Exhibit "E".
1.13 "Building Standard Improvements" as defined in Exhibit "D"
means
those improvements (including the "Shell Improvements" and the
"Allowance
Items") to the Premises which Landlord shall agree to provide.
1.14 "Building Grade" means the type, brand and/or quality of
materials Landlord designates from time to time to be the minimum,
quality to be
used in the Building or the exclusive type, grade or quality of
material to be
used in the Building.
2. LEASE GRANT. Subject to and upon the terms herein set forth,
Landlord
leases to Tenant and Tenant leases from Landlord the Premises.
3. LEASE TERM.
3.1 This Lease shall continue in force during a period beginning
on
the Commencement Date and continuing until the expiration of the
Lease Term,
unless this Lease is sooner terminated or extended to a later date
under any
other term or provision of this Lease.
2
<PAGE>
3.2 If by the date specified in Paragraph 1.5 the Premises have
not
been substantially completed due to omission, delay or default by
Tenant or
anyone acting under or for Tenant, or due to any cause other than
Landlord's
default, Landlord shall have no liability, and the obligations of
this Lease
(including without limitation, the obligation to pay rent) shall
nonetheless
commence as of the Commencement Date as herein stated.
3.3 Tenant agrees to accept possession of the Premises when the
Premises have been substantially completed, with all facilities in
operating
order. If there are any finishing touches remaining to be done
which will not
interfere with the conduct of Tenant's business on the Premises,
Tenant will
nevertheless accept delivery of possession and allow Landlord to
complete such
finishing touches. Landlord shall construct Tenant improvements and
shall allow
Tenant an improvement allowance of up to but not exceeding
$85,000.00. (which
shall be used to cover all hard and soft costs in any way relating
to such
construction, including but not limited to all construction,
permitting,
architectural and design fees) on all space that Tenant shall
occupy at the
commencement Date of the Lease. Any unused portion of this
improvement allowance
will be held by Landlord as a credit for future improvements that
Tenant may
elect to make in the Premises.
When the suite 330 is made available and has become part of the
Premises as
described in Paragraph 1.2 above, Tenant shall be allowed an
improvement
allowance of up to but not exceeding $17,730.00 which shall be used
in the same
manner as set forth above.
3.4 Substantial competition as used herein means completion of
all
work required to be performed by Landlord according to the approved
Plans and
Specifications, except for mutual agreed punchlist items which do
not interfere
with the conduct of Tenant's business on the Premises, and the
issuance of a
Certificate of Completion on final approval by the applicable
agencies of Dade
County for the Premises.
4. USE.
4.1 Tenant will use and occupy the Premises for the following use
and
for no other use or purpose: General Office Use.
4.2 Notwithstanding the provisions of Section 4.1, Tenant agrees
not
to use or permit the use of the Premises for any purpose which is
illegal,
dangerous to life, limb or property or which, in Landlord's sole
opinion,
creates a nuisance or which would increase the cost of insurance
coverage with
respect to the Building.
5. BASE RENTAL.
5.1 Tenant promises to pay and shall pay to Landlord, during the
Lease
Term, without any setoff or deduction whatsoever, the Base Rental
and the
Additional Rental, all of which are sometimes herein collectively
called "rent".
5.2 The annual Base Rental for each calendar year or portion
thereof
during the Lease Term, together with any adjustments thereto as set
forth in
Exhibit "C", then in effect, shall be due and payable in twelve
(12) equal
installments on the first day of each calendar month during the
initial term of
this Lease and any extensions or renewals hereof. Tenant agrees to
pay all such
sums in advance, and without demand.
5.3 Tenant shall pay such Base Rental and any adjustments thereto
to
Landlord at Landlord's address provided herein (or such other
address as may be
designated by Landlord in writing from time to time). All rent
shall be payable
in lawful money of the United States of America, drawn on a
financial
institution with an office in the United States of America.
3
<PAGE>
5.4 If the term of this Lease commences on a day other than the
first
day of a month, or terminates on a day other than the last day of a
month, then
the installments of Base Rental and any adjustments thereto for
such month or
months shall be prorated, based on the number of days in such
month.
5.5 All installments of rent not paid when due shall bear interest
at
the maximum lawful contract rate in the State of Florida until
paid.
5.6 The Base Rental shall be adjusted upward from time to time
in
accordance with the provisions of Exhibit "C".
5.7 Tenant shall pay all sales and use taxes levied or assessed
against all rent payments due under this Lease simultaneously with
each rent
payment required.
6. SERVICES TO BE FURNISHED BY LANDLORD.
6.1 Landlord agrees to furnish Tenant the following services
(herein
called "defined services"):
(a) Hot and cold water at those points of supply provided for
general
use of tenants in the Building.
(b) Central heat and air conditioning at such temperatures and
in
such amounts are considered by Landlord to be standard or as
required by governmental authority; provided, however, heating
and air conditioning service at times other than for "Normal
Business Hours" for the Building (as established by the
Building
Rules) shall be furnished only upon the written request of
Tenant
delivered to Landlord in accordance with the Building Rules.
Tenant shall bear the entire cost of such additional service as
such costs are determined by Landlord from time to time.
(c) Landlord shall maintain the public and common areas of the
Office
Building, including lobbies, stairs, elevators, corridors and
restrooms, the windows in the Office Building, the mechanical,
plumbing and electrical equipment serving the Office Building,
and the structure itself in reasonably good order and condition
except for damage occasioned by the act of Tenant, which damage
shall be repaired by Landlord at Tenant's expense.
(d) Janitor service, Mondays through Fridays, exclusive of
normal
business holidays provided, however, if Tenant's floor covering
or other improvements require special treatment, Tenant shall
pay
the additional cleaning cost attributable thereto as additional
rent upon presentation of a statement therefore by Landlord.
(e) Subject to the provisions of Paragraph 11, provide all
electrical current required by Tenant in its use and occupancy
of the Premises.
(f) All Building Standard fluorescent bulb replacement in the
Premises and fluorescent and incandescent bulb replacement in
the Common Areas and Service Areas.
(g) Security in the form of limited access to the Building
during
other than Normal Business Hours shall be provided in such form
as Landlord deems appropriate. Landlord, however, shall have no
4
<PAGE>
liability to Tenant, its employees, agents, invitees or
licensees
for losses due to theft or burglary, or for damages done by
unauthorized persons on the Premises and neither shall Landlord
be required to insure against any such losses. Tenant shall
cooperate fully in Landlord's efforts to maintain security in
the
building and shall follow all regulations promulgated by
Landlord
with respect thereto.
6.2 The failure by Landlord to any extent to furnish, or the
interruption or termination of, the defined services in whole or in
part,
resulting from causes beyond the reasonable control of Landlord
shall not render
Landlord liable in any respect nor be construed as an eviction
(constructive or
otherwise) of Tenant, nor work an offset or abatement of rent, nor
relieve
Tenant from the obligation to fulfill any covenant or agreement of
this Lease.
Notwithstanding anything to the contrary above, should be defined
services be
interrupted rendering the premises untentable for more than five(5)
consecutive
business days and the resumption of such service or services is
within
landlord's control, Base Rent shall abate from the commencement of
such
untenantable condition until such services are restored.
6.3 Should any of the equipment or machinery used in the provision
of
defined services, for any cause, cease to function properly, Tenant
shall have
no claim for offset or abatement of rent or damages on account of
an
interruption in service occasioned thereby or resulting
therefrom.
6.4 Except as otherwise expressly provided herein, Landlord shall
not
be required to perform any maintenance on or make any repairs to
the Premises.
7. IMPROVEMENTS TO BE MADE BY LANDLORD. All installations and
improvements
now or hereafter placed on the Premises shall be for Tenant's
account and at
Tenant's cost, which cost shall be payable by Tenant to Landlord as
Additional
Rent. Tenant shall be required to pay ad valorem taxes and
increased insurance
thereon or attributable thereto.
8. GRAPHICS. Landlord shall provide and install, at Landlord's
cost, one
sign adjacent to the entry door to the Premises. All letters and
numerals shall
be in the standard graphics for the Building and no others shall be
used or
permitted on the Premises without Landlord's prior written consent.
Tenant will
also be listed on the lobby directory. Tenant shall have the right
to install a
sign containing Tenant's name on the parapet wall on the north side
of the
Building and on the granite monument at the entrance of the
Building. All costs
associated with making, installing, maintaining, lighting, removing
or otherwise
related to such signs shall be the sole responsibility of Tenant,
including
restoring the Building to the condition that existed prior to the
signage
installation. The design and placement of these signs must be
approved by
Landlord prior to such installation.
9. CARE OF THE PREMISES BY TENANT. Tenant shall maintain the
Premises in
good repair and in a clean, attractive, first-class condition.
Tenant shall not
commit or allow any waste to be committed on any portion of the
Premises, and at
the termination of this Lease, Tenant shall deliver the Premises to
Landlord in
as good condition as at the date of the commencement of the term of
this Lease,
ordinary wear and use excepted.
10. REPAIRS AND ALTERATIONS BY TENANT.
10.1 Tenant shall, at Tenant's own cost and expense, repair any
damage
done to the Building, or any part thereof, including replacement of
damaged
portions or items, caused by Tenant or Tenant's agents, employees,
invitees, or
visitors, and
5
<PAGE>
Tenant covenants and agrees to make all such repairs as may be
required to
restore the Building to as good a condition as it was in prior to
such damage,
except if such damage is caused by unauthorized solicitors.
10.2 All such work or repairs by Tenant shall be effected in
compliance with all applicable laws; provided, however, if Tenant
fails to make
such repairs or replacements promptly, Landlord may, at its option,
make repairs
or replacements, and Tenant shall pay the cost thereof to the
Landlord within
ten (10) days of Landlord's demand therefor, as Additional
Rent.
10.3 Tenant agrees with Landlord not to make or allow to be made
any
alterations to the Premises, install any vending machines on the
Premises, or
place signs on the Premises which are visible from outside the
Premises, without
first obtaining the prior written consent of Landlord in each such
instance,
which consent may be given on such conditions as Landlord may
elect.
10.4 Any and all alterations to the Premises shall become the
property
of Landlord upon termination of this Lease (except for movable
equipment or
furniture owned by Tenant). Landlord may, nonetheless, require
Tenant to remove
any and all fixtures, equipment and other improvements installed on
the Premises
and restore the Premises to Building Standard. If Landlord so
requires and
Tenant fails to remove such improvements, Landlord may remove such
improvements
at Tenant's cost, and Tenant shall pay Landlord on demand the cost
of restoring
the Premises to Building Standard.
11. USE OF ELECTRICAL SERVICES BY TENANT. Tenant's use of
electrical
services furnished by Landlord shall not exceed, either in voltage,
rated
capacity, or overall load that which Landlord deems to be Building
Standard. The
electrical design parameters are two watts per square foot at 120
volts and 3.5
watts per square foot at 277 volts for lighting. If Tenant shall
request that it
be allowed to consume electrical services in excess of that deemed
by Landlord
to be Building Standard or the electrical service furnished to the
Premises as
of the date of this Lease, whichever is greater, Landlord may
refuse to consent
to usage or may consent upon such conditions as Landlord elects
(including the
requirement that submeters be installed at Tenant's expense) and
Tenant shall
pay all costs and expenses thereby incurred, including but not
limited to the
cost of electricity and the cost of upgrading the HVAC system to
handle the heat
caused by such additional usage. As of the date of this lease, a
meter has been
installed and Tenant is being separately metered for electrical
services in the
computer room and supplemental air conditioning associated with
this room.
12. PARKING.
12.1 During the term of this Lease, Tenant shall have the
non-exclusive use in common with Landlord, other tenants of the
Building (or the
project in which the Building is located, in a multi-building
project), their
guests and invitees, of the non-reserved common automobile parking
areas,
driveways and footways, subject to rules and regulations for the
use thereof as
prescribed from time to time by Landlord. Tenant's allocated share
of parking
shall be forty-eight (48) spaces. Tenant's employees will not be
permitted to
park in the designated visitor parking area and Tenant will use all
reasonable
efforts to adhere to this regulation.
12.2 No specific designated parking spaces shall be assigned to
Tenant
unless otherwise agreed by Landlord and Tenant in writing. Landlord
shall have
the right to reserve such parking spaces as it elects and condition
use thereof
on such terms as it elects.
6
<PAGE>
13. LAWS, REGULATIONS AND RULES.
13.1 Tenant shall comply with all applicable laws, ordinances,
rules
and regulations of any governmental entity, agency, or authority
having
jurisdiction of the Premises or Tenant's use of the Premises.
13.2 Tenant shall comply with the Building Rules and
Regulations
amended by Landlord from time to time and will cause all of its
agents,
employees, invitees and visitors to do so. All changes to such
rules will be
furnished by Landlord to Tenant in writing.
14. ENTRY BY LANDLORD. Tenant shall permit Landlord or its agents
or
representatives to enter into and upon any part of the Premises at
all
reasonable hours unless such entry deprives tenant of normal usage
for any
amount of time which would cause tenant to suffer economic loss
(and in
emergencies at all times) to inspect the condition, occupancy or
use; to show
the Premises to prospective purchasers, mortgagees, tenant or
insurers, or to
clean or make repairs, alterations or additions. Tenant shall not
be entitled to
any abatement or reduction of rent by reason of this right of
entry.
15. ASSIGNMENT AND SUBLETTING.
15.1 Tenant shall not assign, sublease, transfer, pledge, or
encumber
this Lease or any interest therein without Landlord's prior written
consent. Any
attempted assignment, sublease or other transfer or encumbrance by
Tenant in
violation of the terms and covenants of this paragraph will be
void. If Tenant
is a corporation or a partnership, the conveyance of the corporate
stock or the
assignment of such partnership interest, as the case may be, shall
be deemed an
assignment for the purposes hereof.
15.2 If Tenant shall desire Landlord's consent in the subletting
or
assignment, Tenant shall give Landlord ninety (90) days' prior
written notice
thereof. Such notice shall be deemed to be an offer by Tenant to
sublet the
premises to Landlord for the balance of the term upon all the same
terms,
covenants and conditions as are contained in this Lease or to
assign this Lease
to Landlord at Landlord's option.
15.3 If Landlord does not accept such offer in writing within
the
ninety (90) day notice period, then Landlord's right to sublease
the Premises or
acquire this Lease by assignment shall be deemed to be waived, but
nothing
herein contained shall be deemed to be a consent by Landlord to any
subletting
or assignment unless Landlord delivers to Tenant its written
consent.
15.4 Notwithstanding Landlord's consent on any one occasion, the
right
to recapture noted in Paragraph 15.2 shall apply to any further
subletting or
assignment.
15.5 The covenants in this paragraph concerning assignment shall
bind
Tenant and Tenant's heirs, personal representatives, successors and
assigns.
15.6 Anything, contained in the foregoing provisions of this
section
to the contrary notwithstanding, neither Tenant nor any other
person having an
interest in the possession, use, occupancy or utilization of the
Premises shall
enter into any lease, sublease, license, concession or other
agreement for use,
occupancy or utilization of space in the Premises which provides
for rental or
other payment for such use, occupancy or utilization based, in
whole or in part,
on the net income or profits derived by any person from the
Premises leased,
used, occupied or utilized (other than an amount based on a fixed
percentage or
percentages of receipts of sales), and any such proposed lease,
sublease,
license, concession or other agreement shall be absolutely void
and
7
<PAGE>
ineffective as a conveyance or any right or interest in the
possession, use,
occupancy or utilization of any part of the Premises.
15.7 All cash or other consideration received by Tenant as the
proceeds of any assignment, sale or sublease, of Tenant's interest
in this
Lease, whether consented to by Landlord or not, shall be paid to
Landlord,
notwithstanding the fact that such proceeds exceed the rentals
called for
hereunder, and Tenant hereby assigns all rights it might have or
ever acquire in
any such proceeds to Landlord.
15.8 All reasonable legal costs incurred by Landlord in
approving,
reviewing and processing any assignment or sublease shall be paid
by Tenant
within thirty (30) days of presentation of an invoice for services
rendered by
Landlord's attorney.
16. MECHANIC'S LIENS.
16.1 Tenants will not permit any mechanic's lien or liens to be
placed upon the Premises or the Building. Nothing in this Lease
shall be deemed
or construed in any way as constituting the consent or request of
Landlord,
express or implied, to any person for the performance of any labor
or the
furnishing of any materials to all or part of the Premises, nor as
giving Tenant
any right, power, or authority to contract for or permit the
rendering of any
services or the furnishing thereof that would or might give rise to
any
mechanic's or other liens against the Premises.
16.2 If any such lien is claimed against the Premises, then
Tenant
shall be required to discharge said lien within ten (10) days of
filing, and in
addition to any other right or remedy of Landlord, Landlord may,
but shall not
be obligated to, discharge the same. Any amount paid by Landlord
for such
purposes shall be paid by Tenant to Landlord as additional rent
within ten (10)
days of Landlord's demand therefor.
17. PROPERTY INSURANCE.
17.1 Landlord shall maintain and pay for fire and extended
coverage
insurance on the Building and the Premises in such amounts as
Landlord or
Landlord's mortgagees shall require. Landlord reserves the right to
self-insure
the Building so long as it is a financial institution having a net
worth of at
least $500 million. Payments for losses thereunder shall be made
solely to
Landlord or the mortgagees of Landlord as their interests shall
appear.
17.2 Tenant shall maintain at its expense, in an amount equal to
full
replacement cost, fire and extended coverage insurance on all of
its personal
property, including removable trade fixtures, located in the
Premises and in
such additional amounts as are required to meet Tenant's
obligations pursuant to
Paragraph 20 hereof.
17.3 Tenant shall, at Landlord's request from time to time,
provide
Landlord with current certificates of insurance evidencing Tenant's
compliance
with this Paragraph 17 and Paragraph 18.
17.4 Tenant shall obtain the agreement of Tenant's insurers to
notify
Landlord at least thirty (30) days prior to cancellation or
expiration of any
such insurance coverage by Tenant.
17.5 Notwithstanding anything in this Lease to the contrary and
provided the various policies of insurance required under Paragraph
17 contain a
waiver of subrogation clause, both Landlord and Tenant hereby waive
any and all
rights of recovery, claim, action, or cause of action, against the
other party,
its respective agents, officers and employees, for any loss or
damage
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that may occur to the Premises, or any improvements thereto, or
personal
property located therein, or the Building of which the Premises are
a part or
any improvements thereto, by reason of fire, the elements, or any
other cause
which could be insured against under the terms of standard fire and
extended
coverage insurance policies, regardless of cause or origin,
including negligence
of the parties hereto, their agents, officers and employees.
18. LIABILITY INSURANCE.
18.1 Tenant and Landlord shall, each at its own expense, maintain
a
policy or policies of comprehensive general liability insurance
with respect to
the respective activities of each in the Building, and on the
Property (or
within the project if the Building is located in a multi-building
project) with
the premiums thereon fully paid on or before due date, issued by
and binding
upon an insurance company approved by Landlord, such insurance to
afford minimum
protection of not less than $1,000,000 combined single limit
coverage of bodily
injury, property damage or combination thereof.
18.2 Landlord shall not be required to maintain insurance
against
thefts within the Premises, the Building or any project within
which the
Building is located.
19. ASSUMPTION OF RISK.
19.1 Except for Landlord's gross negligence and/or willful
misconduct,
Landlord shall not be liable to Tenant or Tenant's customers,
licensees, agents,
guests or employees for any injury or damages to its, his of their
persons or
property by any cause whatsoever, including, but not limited to
acts or
omissions of any other tenant in the Building, construction
defects, water,
rain, sleet, fire, storms, negligence and accidents, breakage,
stoppage, or
leaks of gas, water heating, sewer pipes, boilers, wiring or
plumbing or any
other defect in, on or about the Premises.
19.2 Tenant expressly assumes all liability for or on account of
any
such injury, loss or damage, and will at all times, indemnify and
save Landlord
harmless from and against all liability, damage or expense caused
by or arising
out of any such injury, loss or damage to persons or property upon
the Premises
other than the result of landlord's gross negligence and/or willful
misconduct.
20. CASUALTY DAMAGE.
20.1 If the Premises or any part thereof shall be damaged by fire
or
other casualty, Tenant shall give prompt written notice thereof to
Landlord.
20.2 If the Building shall be so damaged that substantial
alteration
or reconstruction of the Building shall, in Landlord's sole
opinion, be required
(whether or not the Premises shall have been damaged by casualty)
or in the
event any mortgagee of Landlord's should require that the insurance
proceeds
payable as a result of a casualty be applied to the payment of the
mortgage debt
or in the event of any material uninsured loss to the Building,
Landlord may, at
its option, terminate this Lease by notifying Tenant in writing of
such
termination within ninety (90) days after the date of such
damage.
20.3 If Landlord does not thus elect to terminate this Lease,
Landlord
shall commence and proceed with reasonable diligence to restore the
Building to
substantially the same condition in which it was immediately prior
to the
happening of the casualty, except that Landlord's obligation to
restore shall
not exceed the scope of the work required to be done by Landlord in
originally
constructing the Building and installing Building
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Standard Improvements in the Premises, nor shall Landlord be
required to spend
for such work an amount in excess of the insurance proceeds
actually received by
Landlord as a result of the casualty.
20.4 When Landlord has restored the Premises to Landlord's
Building
Standard Improvements, Tenant shall be obligated to pay for the
completion of
restoration including the restoration of Tenant's furniture and
equipment.
20.5 Except for the reconstruction by Landlord to Landlord's
Building
Standard Improvements all costs and expenses for reconstruction
shall be borne
by Tenant.
20.6 Landlord shall not be liable for any inconvenience or
annoyance
to Tenant or injury to the business of Tenant resulting in any way
from such
damage on the repair thereof, except that, subject to the
provisions of
Paragraph 20.7, Landlord shall allow Tenant a fair diminution of
rent during the
time and to the extent the Premises are unfit for occupancy.
20.7 If the Premises or any portion of the Building be damaged by
fire
or other casualty resulting from the fault or negligence of Tenant
or any of
Tenant's agents, employees, or invitees, the rent hereunder shall
not be
diminished, offsetted, or abated during the repair of such damage
and Tenant
shall be liable to Landlord for the cost of the repair and
restoration of the
Building caused thereby, as well as any other cost and expense
thereby incurred
by Landlord.
21. CONDEMNATION.
21.1 If the whole or substantially the whole of the Building or
the
Premises should be taken for any public or quasi-public use, by
right of eminent
domain or otherwise, or if it should be sold in lieu of
condemnation, then this
Lease shall terminate as of the date when physical possession of
the Building or
the Premises is taken by the condemning authority.
21.2 If less than the whole or substantially the whole of the
Building
or the Premises is thus taken or sold, Landlord (whether or not the
Premises are
affected thereby) may terminate this Lease by giving written notice
thereof to
Tenant, in which event this Lease shall terminate as of the date
when physical
possession of such portion of the Building or Premises is taken by
the
condemning authority.
21.3 If this Lease is not so terminated upon any such taking or
sale,
and Landlord shall, to the extent Landlord deems feasible, restore
the Building
and the Premises to substantially their former condition, but such
work shall
not exceed the scope of the work done by Landlord in originally
constructing the
Building and installing Building Standard Improvements in the
Premises, nor
shall Landlord in any event be required to spend for such work an
amount in
excess of the amount received by Landlord as compensation for such
damage. If
the Premises are reduced by such condemnation the Base rent and
Tenant's
proportionate share of the Operating Expenses will be
proportionately reduced by
the percentage reduction of the Premises, In the event the Premises
after
condemnation is insufficient to operate, then Tenant will be moved
to comparable
space in the office park if available. If such space is not
available, Tenant
will have the right to cancel the Lease by giving Landloard written
notice
thereof.
21.4 All amounts awarded upon a taking of any part or all of
the
Building or the Premises shall belong to Landlord, and Tenant shall
not be
entitled to and expressly waives all claim to any such
compensation.
21.5 Tenant shall be entitled to claim independently against
condemning authority any damages expressly referable to Tenant's
business as the
same may be permitted by law provided that such claim shall not
reduce any
award payable to Landlord.
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22. DAMAGES FROM CERTAIN CAUSES. Landlord shall not be liable to
Tenant for
any loss or damage to any property or person occasioned by theft,
fire, act of
God, public enemy, injunction, riot, strike, insurrection, war,
court order,
requisition, or order of governmental body or authority or by any
other cause
beyond the control of Landlord, including but not limited to delays
from the
foregoing. Nor shall Landlord be liable for any damage or
inconvenience which
may arise through repair or alterations of any part of the Building
or Premises
except if such damage is caused by landlord's gross negligence or
willful act.
23. EVENTS OF DEFAULT/REMEDIES.
23.1 Event of Default by Tenant. The happening of any one or more
of
the following listed events (Events of Default) shall constitute a
breach of
this Lease by Tenant:
(a) The failure of Tenant to pay any rent or any other sums of
money
due hereunder;
(b) The failure of Tenant to comply with the provisions of this
Lease
or any addendums between Landlord and Tenant, all of which
terms,
provisions, and covenants shall be deemed material;
(c) The taking of the leasehold on execution or other process of
law
in any action against Tenant;
(d) The failure of Tenant to accept the Premises, to move into,
to
take possession of, and to operate its business on the Premises
when the Premises are substantially complete, or if Tenant
ceases
to do business in or abandons any substantial portion of the
Premises and fails to pay rent as required hereunder;
(e) Tenant becoming insolvent or unable to pay its debts to
Landlord
as they become due, or Tenant's notification to Landlord that
it
anticipates either condition;
(f) Tenant taking any action to, or notifying Landlord that
Tenant
intends to, file a petition under the United States Bankruptcy
Code, as amended, or any similar law or statute of the United
States, or any state; or, the filing of a Petition against
Tenant
under any such statute or law, or, any other creditor of Tenant
notifying Landlord that it knows such a petition will be filed;
or the Tenant's notification to Landlord that it expects such a
Petition to be filed;
(g) The appointment of a receiver or trustee for Tenant's
leasehold
interest in the Premises or for all or a substantial part of
the
assets of Tenant; or
(h) Tenant defaulting pursuant to subparagraphs (a) through (g)
hereof three (3) or more times during any twelve-month period
under the Lease.
23.2 Landlord's Remedies for Tenant Default. Upon the occurrence
of
any event or events of default by Tenant, whether enumerated in
Paragraph 23.1
or not, if Tenant fails to cure any such default within ten (10)
days of written
notice from Landlord, except with regard to a default pursuant to
paragraph
23.1(a) as to which default Tenant expressly waives any right to
notice from
the Landlord and paragraph 23.1(h) as to which default Tenant has
no right to
cure, Landlord shall have the option, at Landlord's election, to
pursue any one
or more of the following remedies:
(a) Landlord may cancel and terminate this Lease and dispossess
Tenant;
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(b) Landlord may without terminating or canceling this Lease
declare
all amounts and rents due under this Lease for the remainder of
the existing lease term (or any applicable extension or renewal
thereof) to be immediately due and payable, and thereupon all
rents and other charges due hereunder to the end of the initial
term or any renewal term, if applicable, shall be accelerated;
(c) Landlord may elect to enter and repossess the Premises and
relet
the Premises for Tenant's account, holding Tenant liable in
damages for all expenses incurred in such reletting and for any
difference between the amount of rent received from such
reletting and the amount due and payable under the terms of
this
Lease;
(d) Landlord may enter upon the Premises and do whatever Tenant
is
obligated to do under the terms of this Lease (and Tenant shall
reimburse Landlord on demand for any reasonable expenses which
Landlord may incur in effecting compliance with Tenant's
obligations under this Lease, and Landlord shall not be liable
for any damages resulting to the Tenant from such action).
23.3 Landlord's Remedies are Cumulative. All the remedies of
Landlord in
the event of Tenant default shall be cumulative and in addition,
Landlord may
pursue any other remedies permitted by law or in equity,
forbearance by Landlord
to enforce one or more of the remedies upon an event of default,
shall not
constitute a waiver of such default.
24. OPERATING EXPENSES.
24.1 For the purposes of this paragraph, the following
definitions
apply:
(a) "Base Year" means the calendar year in which this lease
commences.
(b) "Utilities" means water, sewer, electricity, fuel oil, gas
and
refuse removal.
(c) "Operating Expenses" means all expenses, costs and
disbursements
of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership
and/or operation of the Building including common areas within
the office park, but shall not include the replacement of
capital
investment items and new capital improvements. By way of
explanation and clarification, but not by way of limitation,
these Operating Expenses will include the following:
1. Wages and salaries of all employees engaged in operation and
maintenance of the Building and common areas of the office
park; employer's social security taxes, unemployment taxes
or insurance, and any other taxes which may be levied on
such wages and salaries; the cost of disability and
hospitalization insurance, pension or retirement benefits,
and any other fringe benefits for such employees.
2. All supplies and materials used in operation and maintenance
of the Building and common areas of the office park.
3. Cost of utilities including electricity, fuel oil, gas,
sewer and water used by the Building and not charged
directly to another tenant.
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4. Cost of customary Building management and office park
management; janitorial services; trash and garbage removal;
service and maintenance of all systems and equipment,
including, but not limited to, elevators, plumbing, heating,
air-conditioning, ventilating, lighting, electrical,
security, fire alarms, fire pumps, fire extinguishers, hose
cabinets, mail chute, and lawn sprinklers; guard service;
painting; caulking; pressure or steam cleaning of Building
exterior; roof repairs; window cleaning; and landscaping and
gardening.
5. Cost of casualty and liability insurance applicable to the
Building and office park and Landlord's personal property
used in connection therewith.
6. All taxes and assessments and governmental charges whether
federal, state, county or municipal, and whether they be by
taxing districts or otherwise, and any other taxes and
assessments attributable to the Building or its operation
excluding, however, federal and state taxes on income.
7. All charges assessed against the Building or against the
underlying land by any property owners association common
to the area or subdivision.
8. Expenditures for capital improvements which, under generally
accepted accounting principles, are regarded as deferred
expenses and for capital expenditures required by law, in
either of which cases the cost thereof shall be included in
Operating Expenses for the calendar year in which the costs
are incurred or subsequent years, appropriately allocated to
such years on a straight-line basis to the extent that such
items are amortized over a useful life or over an
appropriate period, but in no event, more than ten years,
with the addition of a reasonable interest factor to
compensate Landlord for having initially incurred said
expenditure;
9. If Landlord shall purchase any item of capital equipment or
make any capital expenditure designed to result in savings
or reductions in any of the elements of Operating Expenses,
then the costs for such capital equipment or capital
expenditure are to be included within the definition of
"Operating Expenses" for the year in which the costs are
incurred or subsequent years, appropriately allocated to
such years on a straight-line basis to the extent that such
items are amortized over such period of time as reasonably
can be estimated as the time in which such savings or
reductions in Operating Expenses are expected to equal
Landlord's costs for such capital equipment or capital
expenditure, with the addition of a reasonable interest
factor to compensate Landlord for having initially incurred
said expenditure. If Landlord shall lease any such item of
capital equipment designed to result in savings or
reductions in Operating Expenses, then the rentals and other
costs paid pursuant to such leasing shall be included in
Operating Expenses for the year in which they are incurred.
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(d) "Tenant's Proportionate Share" means the ratio that the Net
Rentable Area of the Premises bears to the Net Rentable Area of
the Building. For the purpose of this Lease, Tenant's
proportionate share is 27.2 8.11%.
(e) "Expense Statement" means a statement from the Landlord
setting
forth the Operating Expenses.
24.2 Tenant shall pay as Additional Rent Tenant's Proportionate
Share
of the Operating Expenses that exceed $7.50 per net rentable square
foot for any
calendar year during the Lease Term.
24.3 For each calendar year after the Base Year, Landlord shall
furnish Tenant with an Expense Statement showing in reasonable
detail the
Operating Expenses incurred by the Landlord for the prior calendar
year.
24.4 Within thirty (30) days following receipt by Tenant of the
Expense Statement for the prior calendar year, Tenant shall pay in
full,
Tenant's Proportionate Share of the portion of Operating Expenses
for the prior
calendar year for which Tenant is liable hereunder.
24.5 As part of the Expense Statement, Landlord may include an
amount
representing Tenant's Proportionate Share of the estimated
Operating Expense to
be incurred for the then current calendar year. If the Building did
not exist
for the full calendar year immediately preceding a prior calendar
year, Landlord
may estimate the increase in Direct Expenses for the current
calendar year.
24.6 Upon receipt of the estimate showing Tenant's
Proportionate
Share, the amount thereof shall be divided into twelve (12) equal
monthly
installments, and Tenant shall pay Landlord, at the same time that
the next
regular monthly rental payment is due, the number of installments
necessary to
bring the Tenant current for the calendar year. Credit will be
given for any
payment of estimated increases already paid for those months.
Subsequent
installments shall be payable together with the regular rent
payments for the
balance of the calendar year and shall continue until payments
begin under the
following calendar year's Expense Statement.
24.7 If Tenant's Proportionate Share of Operating Expenses for a
prior
calendar year as shown on the Expense Statement is greater than the
estimated
payments made by the Tenant for that year, then within thirty (30)
days
following receipt by Tenant of the Expense Statement, Tenant shall
pay in full
an amount equal to such excess. If Tenant's Proportionate Share of
Operating
Expenses actually incurred for prior calendar year as shown on the
Expense
Statement is less than the estimated payments made by the Tenant
for that year,
then the amount of such overpayment shall be credited against the
next Operating
Expense Payments falling due.
24.8 If this Lease terminates before the end of a calendar
year,
payment will be based on the percentage of the year in which Tenant
occupied the
Premises.
24.9 Tenant or its agent, at its expense, shall have the right no
more
frequently than once in each calendar year, within sixty (60) days
following its
receipt of the Expense Statement, following prior written notice to
Landlord, to
audit Landlord's books and records relating to Operating Expenses;
or at
Landlord's sole discretion, Landlord will provide an audit prepared
by a
certified public accountant. Tenant or its agent shall have a right
to observe
the preparation of audit provided Tenant does not interfere with
such audit. Any
objections to the Expense Statement must be made, if at all, during
such sixty
(60) day period.
24.10 Notwithstanding any language in the Lease seemingly to
the
contrary, if the Building is not fully occupied during any calendar
year of the
Lease Term, actual "Operating Expenses" and
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the excess for purposes of the referenced above shall be determined
as if the
Building had been fully occupied during such year. For the purpose
of the Lease
"fully occupied" shall mean occupancy of 95% of the Net Rentable
Area in the
Building.
25. PEACEFUL ENJOYMENT.
25.1 Tenant shall, and may peacefully enjoy the Premises against
all
persons claiming by, through or under Landlord, subject to the
other terms
hereof, provided that Tenant pays the rent and other sums herein
recited to be
paid by Tenant and performs all of Tenant's covenants and
agreements in this
Lease.
25.2 The foregoing covenant and any and all other covenants of
the
Landlord shall be binding upon Landlord and its successors only
with respect to
breaches occurring during its or their respective periods of
ownership of the
Tenant's interest hereunder.
27. HOLDING OVER.
27.1 If Tenant holds over without Landlord's written consent
after
expiration or other termination of this Lease, or if Tenant
continues to occupy
the Premises after termination of Tenant's right of possession
pursuant to the
provisions of Paragraph 23.2(c), Tenant shall throughout the entire
holdover
period pay rent equal to one hundred fifty percent (150%) the Base
Rental and
Additional Rent which would have been applicable had the term of
this Lease
continued through the period of such holding over by Tenant.
Landlord and Tenant
maintain the right to terminate this month to month tenancy with
thirty (30)
days following written notification to the other party.
27.2 No possession by Tenant after the expiration of the term of
this
Lease shall be construed to extend the term of this Lease unless
Landlord has
consented to such possession in writing.
28. SUBORDINATION TO MORTGAGE.
28.1 This Lease is and shall be subject and subordinate only to
a
first mortgage, whether presently existing or hereafter arising
upon the
Premises or upon the Building and to any renewals, modifications,
refinancings
or extensions thereof, but Tenant agrees that any such first
mortgagee shall
have the right to subordinate such first mortgage to this Lease on
such terms
and subject to such conditions as such first mortgagee may deem
appropriate in
its discretion.
28.2 Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any first mortgage, now
existing or
hereafter placed upon the Premises or the Building as a whole, and
Tenant agrees
upon demand to execute such further instruments subordinating the
Lease or
attorning to holder of any such first lien as Landlord may request.
Landlord
represents that on the date of execution of this Lease there is no
mortgage
encumbering the Building or the property. Any subordination by
Tenant to any
first mortgage hereinafter placed upon the Premises or the Building
shall be
contingent upon the holder thereof having first given Tenant a
non-disturbance
agreement.
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28.3 The terms of this Lease are subject to approval by the
Landlord's
permanent first lender, and such approval is a condition precedent
to Landlord's
obligations hereunder. In addition, all leases of portions of the
Building will
be subordinate to such permanent first lender's mortgage.
28.4 If Tenant should fail to execute any subordination or
other
agreement required by this paragraph, promptly as requested, Tenant
hereby
irrevocably constitutes Landlord as its attorney-in-fact to execute
such
instrument in Tenant's name, place and stead, it being agreed that
such power is
one coupled with an interest.
28.5 Tenant agrees that it will from time to time upon request
by
Landlord execute and deliver to such persons as Landlord shall
request a
statement in recordable form certifying that this Lease is
unmodified and in
full force and effect (or if there have been m
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