<PAGE>
Exhibit 10.43
LEASE AGREEMENT
BY AND BETWEEN
1511 N. WESTSHORE PARTNERS, LTD. ("LESSOR")
AND
VISION CARE. INC. ("LESSEE")
1511 N. WESTSHORE BOULEVARD, SUITE 1000
TAMPA, FLORIDA 33607
TABLE OF CONTENTS
<TABLE>
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SECTION CAPTION
PAGE
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----
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<C>
1.
PREMISES.......................................................
1
2.
TERM...........................................................
1
3.
USE............................................................
2
4.
RENTAL.........................................................
2
5. BUILDING
SERVICES.............................................. 4
6. PEACEFUL
ENJOYMENT............................................. 5
7.
PAYMENTS.......................................................
5
8. REPAIRS AND
RE-ENTRY........................................... 5
9. ALTERATIONS AND
IMPROVEMENTS................................... 5
10. ASSIGNMENT OR
SUBLEASE......................................... 5
11. LEGAL USE AND
VIOLATIONS OF INSURANCE COVERAGE................. 7
12. INDEMNITY
LIABILITY............................................ 7
13. RULES OF
BUILDING.............................................. 7
14. ENTRY FOR
REPAIRS AND INSPECTION............................... 8
15. USE OF BUILDING
NAME........................................... 8
16.
GRAPHICS.......................................................
8
17. DEFACING
PREMISES AND OVERLOADING.............................. 8
18. LIABILITY
INSURANCE............................................ 9
19. CASUALTY
INSURANCE............................................. 9
20.
CONDEMNATION...................................................
9
21. LOSS OR
DAMAGE.................................................
9
22.
ABANDONMENT....................................................
9
</TABLE>
(initials)
<PAGE>
<TABLE>
<S>
<C>
<C>
23. HOLDING
OVER...................................................
10
24. LOSS BY FIRE OR
OTHER CAUSES................................... 10
25. WAIVER OF
SUBROGATION RIGHTS................................... 10
26. ATTORNEY'S
FEES................................................ 11
27. AMENDMENT OF
LEASE............................................. 11
28. TRANSFER OF
LESSOR'S RIGHTS.................................... 11
29. DEFAULT BY
LESSEE.............................................. 11
30. REMEDIES FOR
LESSEE'S DEFAULT.................................. 11
31. WAIVER OF
DEFAULT OR REMEDY.................................... 12
32. RIGHTS OF
MORTGAGEE............................................ 12
33. ESTOPPEL
CERTIFICATES.......................................... 13
34.
SUCCESSORS.....................................................
13
35. RENT
TAX.......................................................
13
36.
PARKING........................................................
13
37.
INTEREST.......................................................
13
38. CONTINUATION OF
LEASE AFTER TERMINATION........................ 13
39.
NOTICES........................................................
14
40. CHARGES FOR
SERVICES........................................... 14
41.
SCHEDULES......................................................
14
42.
SEPARABILITY...................................................
14
43. GOVERNING
LAWS................................................. 14
44.
CAPTIONS.......................................................
14
45. LESSOR'S
LIEN.................................................. 14
46. NO
LIENS.......................................................
15
47. SHOWING
PREMISES...............................................
15
48.
COMMISSIONS....................................................
15
49. LONG FORM
LEASE................................................ 15
50. TENANT
IMPROVEMENTS............................................
15
51. HAZARDOUS
MATERIALS............................................ 15
52. RADON
DISCLOSURE...............................................
16
53. NO
MERGER......................................................
17
</TABLE>
(initials)
<PAGE>
<TABLE>
<S>
<C>
<C>
54. EXTERIOR
BALCONIES............................................. 17
55. CONDITION OF
LEASE............................................. 17
56. OPTION TO
RENEW................................................ 17
SIGNATURE PAGE.................................................
18
</TABLE>
EXHIBITS
"A"
DEMISED PREMISES
"A-1" SCHEMATIC
SPACE PLAN
"B"
WORKLETTER
"C"
BUILDING RULES AND REGULATIONS
"C-1" FITNESS
CENTER RULES AND REGULATIONS
"C-2" EMPLOYER'S
RELEASE OF LIABILITY AND INDEMNITY AGREEMENT
"C-3" EMPLOYEE'S
RELEASE OF LIABILITY AND INDEMNITY AGREEMENT
"D"
RESERVED PARKING SPACES
(initials)
<PAGE>
TOWERMARC CORPORATION
LEASE AGREEMENT
BY AND BETWEEN
1511 N. WESTSHORE PARTNERS, LTD. ("LESSOR")
AND
VISION CARE, INC. ("LESSEE")
1511 N. WESTSHORE BOULEVARD, SUITE 1000
TAMPA, FLORIDA 33607
THIS
LEASE AGREEMENT, made and entered into as of the 8th day of
June,
1994, by and between 1511 N. Westshore Partners, Ltd. (hereinafter
referred to
as the "Lessor"), and Vision Care, Inc. (hereinafter referred to as
the
"Lessee").
1.
PREMISES. Lessor hereby leases to Lessee and Lessee hereby rents
from
Lessor, approximately twelve thousand six hundred seventy five
(12,675) square
feet of rentable area comprising the entire tenth floor of the
Building, as
defined herein and shown on Exhibit "A" attached hereto and made a
part hereof
by reference, (hereinafter referred to as the Premises) and known
as Suite 1000
in the Tower Place Building (hereinafter referred to as the
"Building") located
at 1511 N. Westshore Boulevard, Tampa, Florida, 33607. For the
purposes of this
Lease, rentable area shall be the area actually occupied and used
exclusively by
the Lessee plus a designated percentage of this area representing
an allocated
share of the common area(s) of the Building.
2.
TERM.
(a) The term of this Lease shall be for a period of sixty-two
(62)
months, commencing on the first (1st) day of September, 1994, or
the date on
which the Premises are available for occupancy, whichever last
occurs,
hereinafter referred to as the "Commencement Date", and expiring at
midnight on
the 31st day of October, 1999, hereinafter referred to as the
"Expiration Date".
(b) Notwithstanding Paragraph (a), above, if the Premises
require
improvements prior to occupancy thereof, and the completion of said
improvements
is delayed beyond the aforesaid Commencement Date of this Lease,
then the
Commencement and Expiration Dates of this Lease, respectively,
shall be deemed
to have been extended until the date the Premises are, in fact,
ready for
occupancy by Lessee, and shall terminate the aforesaid number of
months
thereafter, provided, however, should such delay be the result of
Lessee's
failure to (i) timely provide Lessor with the information necessary
to prepare
the Plans for Lessee's Improvements, (ii) timely approve the Plans
prepared by
Lessor for Lessee's Improvements or (iii) adhere to the approved
Plans by
requesting changes thereon or otherwise delaying construction of
Lessee's
Improvements, then, the term of this Lease shall commence as
provided for in
Paragraph (a), above, irrespective of whether or not for any reason
the
(initials)
1
<PAGE>
Premises are not ready for occupancy on or before the date
specified above.
(c) Notwithstanding Paragraph (a), above, if the Premises
require
improvements prior to occupancy thereof, and the Lessee (as opposed
to the
Lessor) employs a contractor to complete all or any part of the
improvements to
the Premises, it is agreed that the term of this Lease shall
commence as
provided for in Paragraph (a), above, irrespective of whether or
not for any
reason the Premises are not ready for occupancy on or before the
date specified
above.
3.
USE. Lessee covenants that the Premises will be continuously used
and
occupied during the full term of this Lease for the purpose(s) of
general office
use and will not use and occupy the Premises for any other purpose
without the
prior written consent of Lessor. In no event, however, shall the
Lessee be
allowed to use the Premises as a travel agency without the prior
written consent
of Lessor, which consent may be withheld in Lessor's sole
unfettered discretion.
4.
RENTAL.
(a) BASE RENT. In consideration for this Lease and subject to
the
adjustments hereinafter specified in this Lease, as rental for the
Premises, the
Lessee hereby agrees to pay to the Lessor, without deduction,
set-off, prior
notice or demand, Base Rent as follows:
<TABLE>
<CAPTION>
Lease Period
Annual Rent
Monthly Rent
------------
-----------
------------
<S>
<C>
<C>
September 1, 1994-August 31, 1995 $231,324
$19,277
September 1, 1995-August 31, 1996 $237,660
$19,805
September 1, 1996-August 31, 1997 $243,996
$20,333
September 1, 1997-August 31, 1998 $250,332
$20,861
September 1, 1998-August 31, 1999 $256,668
$21,389
September 1, 1999-October 31, 1999 $ 42,778
$21,389
</TABLE>
All
rental installments shall be payable on the first day of the month
in
advance by Lessee as herein provided to Lessor at their place of
business as
specified in Paragraph 39 herein until notice to the contrary is
given by
Lessor. The first such monthly installment shall be due and payable
at the time
of the execution of this Lease. If the beginning date of this Lease
commences on
any day of the month other than on the first day, the monthly Base
Rent for the
unexpired portion of said month shall be prorated and paid on a per
diem basis,
and the Lessor shall credit the difference, if any, toward the
payment of the
rent for the next calendar month. Other remedies for nonpayment of
rent
notwithstanding, if the monthly rental payment is not received by
Lessor on or
before the tenth day of the month for which rent is due, or if any
other payment
due Lessor by Lessee is not received by Lessor on or before the
tenth day of the
month next following the month in which Lessee was invoiced, a
service charge of
five per cent (5%) of such past due amount shall become due and
payable in
addition to such amounts owed under this Lease.
(b) ADDITIONAL RENTS. In the event the operating expenses (as
defined
below) of the Building of which the Premises are a part shall, in
any calendar
year during the term of this Lease, exceed the sum of $7.00 per
square foot of
rentable area (the "Expense Stop"),
(initials)
2
<PAGE>
Lessee agrees to pay as additional rental Lessee's pro rata share
of the excess
operating expenses. Notwithstanding the foregoing, Lessor hereby
acknowledges
and agrees that Lessee shall not be responsible for paying
operating expenses in
excess of the Expense Stop which are attributable to increases in
"controllable
operating expenses" (as defined below), which exceed five percent
(5%) of the
Expense Stop compounded annually. For the purposes hereof,
"controllable
operating expenses" shall mean all of those expenses identified as
"operating
expenses" below, excluding however, real estate taxes, insurance
premiums, and
utility costs and expenses. There shall be no limitation on the
amount of pass
through to Lessee for those excess operating expenses which are not
considered
controllable operating expenses. Lessor may, within nine (9) months
following
the close of any calendar year for which additional rental is due
under this
Paragraph, invoice Lessee for the excess operating expenses. The
invoice shall
include in reasonable detail the computations of the additional
rental, and
Lessee agrees to make payment of the additional rental to Lessor
within ten (10)
days following receipt of the invoice. In addition to Lessor's
right to invoice
Lessee for actual excess operating expenses, if any, at the end of
each calendar
year, Lessor shall have the right but not the obligation, at any
time during the
term of this Lease, to estimate excess operating expenses for the
coming
calendar year (or remaining part thereof) and invoice Lessee for
its pro rata
share of such estimated excess operating expenses. Lessee shall pay
monthly,
concurrent with each Base Rent payment due hereunder, an amount
equal to
one-twelfth (1/12) the estimated annual excess operating expenses,
such payment
being considered "Additional Rent". In the event of an overpayment
or
underpayment by Lessee, each party hereby agrees to an appropriate
adjustment to
be paid or credited, as the case may be, as determined by the
accounting of
actual operating expenses as provided herein, to the Additional
Rent payment
next becoming due from Lessee. Appropriate proration shall be made
for partial
periods. Lessee shall have the right, at its own expense and at a
reasonable
time, to inspect Lessor's books at the Lessor or its agent's place
of business,
relevant to the additional rentals due under this paragraph, or at
Lessor's
option, Lessor shall provide to Lessee a statement of operating
expenses in
reasonable detail. Lessee's obligation to pay this rent shall
survive the
termination of the Lease.
The
term "operating expenses", as used above, includes all expenses
incurred with respect to the maintenance, management and operation
of the
Building of which the Premises are a part, including, but not
limited to,
maintenance and repair costs, electricity, fuel, water, sewer, gas
and other
utility charges, security, window washing, janitorial services,
trash removal,
landscaping and pest control, wages and fringe benefits payable to
employees of
Lessor whose duties are connected with the operations and
maintenance of the
Building, amounts paid to contractors or subcontractors for work or
services
performed in connection with the operation, management and
maintenance of the
Building, all services, supplies, repairs, replacements or other
expenses for
maintaining, managing and operating the Building including common
area and
parking area maintenance. The term "operating expenses" also
includes all real
property taxes and installments of special assessments, all
insurance premiums
Lessor is required to pay or deems necessary to pay, including
public liability
insurance with respect to the Building. The term "operating
expenses" does not
include income and franchise taxes of Lessor, expenses incurred in
leasing to or
procuring of tenants, leasing commissions, advertising expenses,
expenses for
the renovating of space for new tenants, capital improvements,
interest or
principal payments on any mortgage or other indebtedness of Lessor,
nor
depreciation allowance or expense, provided however, there shall be
included as
an operating expense of the Building,
(initials)
3
<PAGE>
depreciation for capital expenditures made by Lessor to reduce
operating
expenses, if Lessor shall have reasonably determined that the
annual reduction
in operating expenses shall exceed depreciation therefor, such
depreciation to
be determined by dividing the original cost of such capital
expenditure by the
number of years of useful life to be reasonably determined by
Lessor in
accordance with generally accepted financial accounting principles
and practices
in effect at the time of acquisition of the capital item.
The
term "common area(s)", as used in this Lease shall mean the
portions of
the Building, as well as all parking area(s), both covered and
uncovered and all
landscaped and recreational areas, provided and maintained by the
Lessor for the
common use and benefit of the tenants of the Building generally and
the
employees, invitees, and licensees of such tenants. Lessee's pro
rata share of
the operating expenses described above shall be determined by
multiplying the
amount of such operating and maintenance costs by a factor, the
numerator of
which shall be the rentable area of the Premises (as stated in
Paragraph 1 of
this Lease) and the denominator of which shall be the rentable area
of the
entire building. For the purpose of this Lease this factor shall be
.07.
5.
BUILDING SERVICES. Lessor agrees to provide in the Building:
(a)
restroom and drinking fountain facilities on each floor of the
Building; (b)
heated and refrigerated air-conditioning in season, and at such
temperatures and
in such amounts and at such hours as are specified by Lessor to be
standard
(such hours are specified in the Building Rules and Regulations),
above standard
or after hours services to be furnished only if so requested by
Lessee and
approved by Lessor, and Lessee shall bear the entire cost of such
service. The
air-conditioning system in the Building is based upon an occupancy
of not more
than one person per 150 square feet of usable area, and upon a
combined lighting
and standard electrical load not to exceed 2.5 watts per square
foot of the
usable area. In the event Lessee exceeds this condition or
introduces onto the
Premises equipment which overloads the system, and/or in any other
way causes
the system not to adequately perform its proper functions,
supplementary systems
may at Lessor's option be provided to the Premises by the Lessor at
the Lessee's
sole expense; (c) adequate elevator service; (d) janitorial service
after
standard business hours five (5) days a week; (e) electrical
current for
ordinary purposes connected with the aforesaid use of the Premises.
Lessor shall
provide electrical power to the Premises for up to 1.5 watts per
square foot of
usable area for lighting and 1.0 watts per square foot of usable
area for office
machines through standard receptacles for the typical office space.
Lessor shall
not bear the utility costs (including air-conditioning costs)
occasioned by
electronic data processing machines, computers and similar machines
of high
electrical consumption if such consumption exceeds the capacity
limits provided
for herein, provided however, Lessor shall provide 24 hour per day
electrical
service and supplemental HVAC to Lessee's Computer Room only, as
such room is
identified on EXHIBIT "A-1" attached hereto; and (f) electrical
lighting service
for all public areas and special service areas of the Building in
the manner and
to the extent deemed by Lessor to be standard. Provided, however,
that failure
by Lessor to any extent to furnish, or any stoppage of, these
defined services,
resulting from causes beyond the control of Lessor or not the fault
of Lessor
from any other cause (including without limitation, the
unavailability of fuel
or energy or any applicable laws, rules or regulations relating
thereto), shall
not render Lessor liable in any respect for damages to either
person or
property, nor be construed as an eviction of Lessee, nor work an
abatement of
rent, nor relieve Lessee from fulfillment of any covenant or
agreement
(initials)
4
<PAGE>
hereof. Should any equipment or machinery break down or for any
cause, cease to
function properly, Lessor shall use reasonable diligence to repair
the same
promptly, but Lessee shall have no claim for rebate of rent or
damages on
account of interruptions in service occasioned thereby or resulting
therefrom;
and Lessor shall incur no liability whatsoever for any loss, damage
or
interruption of services caused by a strike or labor stoppage
(whether such
shall involve employees of Lessor or others), interruptions of
transportation,
unavailability of materials, parts, machinery or supplies, acts of
God, or other
causes beyond Lessor's control.
6.
PEACEFUL ENJOYMENT. Lessee shall, and may peacefully, have, hold
and
enjoy the Premises subject to the other terms thereof, and provided
Lessee pays
the rentals herein recited and perform all of its covenants and
agreements
herein contained.
7.
PAYMENTS. Lessee will pay all rents and sums provided to be paid
Lessor
hereunder at the time and in the manner herein provided. Time is of
the essence
as regards all rents and other sums provided to be paid to
Lessor.
8.
REPAIRS AND RE-ENTRY. Lessee will, at Lessee's own cost and
expense,
repair or replace any damage or injury done to the Building, the
Premises, or
any part thereof, caused by Lessee or Lessee's agents, employees,
invitees or
visitors. If Lessee fails to make such repairs or replacements
promptly, or
within fifteen (15) days of occurrence, Lessor may, at its option,
make such
repairs or replacements, and Lessee shall repay the cost thereof to
Lessor on
demand. Lessee will not commit or allow any waste or damage to be
committed on
any portion of the Premises or the Building and shall at the
termination of this
Lease, by lapse of time or otherwise, deliver the Premises to
Lessor broom clean
and in as good condition as at date of possession of Lessee,
ordinary wear and
tear excepted, and upon such termination of Lease, Lessor shall
have the right
to re-enter and resume possession of the Premises.
9.
ALTERATIONS AND IMPROVEMENTS. Except as otherwise provided in the
Work
Letter attached hereto as EXHIBIT "B" all installations and
improvements now or
hereafter placed on the Premises other than Building Standard
Improvements shall
be for Lessee's account and at Lessee's cost (and Lessee shall pay
ad valorem
taxes and increased insurance thereon or attributable thereto),
which cost shall
be payable by Lessee to Lessor in advance. Lessee shall not make or
allow to be
made any alterations or physical additions in or to the Premises
without first
obtaining the written consent of Lessor. Any alterations, physical
additions or
improvements to the Premises made by Lessee shall at once become
the property of
the Lessor and shall be surrendered to Lessor upon the termination
of this
Lease. Lessor, at its option, may require Lessee to remove any
physical
additions and/or repair any alterations in order to restore the
Premises to the
condition existing prior to the time Lessee took possession, all
costs of
removal and/or alterations to be borne by Lessee. This clause shall
not apply to
movable equipment, furniture or trade fixtures owned by Lessee
which may be
removed by Lessee at the end of the term of this Lease if Lessee is
not then in
default and If such equipment and furniture is not then subject to
any other
rights, liens and interests of Lessor.
10.
ASSIGNMENT AND SUBLETTING. Lessee shall not assign, mortgage,
pledge,
or encumber this Lease, or permit all or any part of the Premises
to be
subleased
(initials)
5
<PAGE>
without the prior written consent of Lessor and Lessor's mortgagee,
if any,
which consent shall not be unreasonably withheld or delayed. Any
transfer of
this Lease by merger, consolidation, reorganization, or liquidation
of Lessee,
or by operation of law, or change in ownership of or power to vote
the majority
of the outstanding voting stock of a corporate Lessee, or by change
in ownership
of a controlling partnership interest in a partnership Lessee,
shall constitute
an assignment for the purposes of this paragraph. Notwithstanding
the foregoing,
Lessee shall have the right to assign or sublease part or all of
the Premises to
any of its subsidiaries, affiliates or any parent corporation of
Lessee with
prior written notice to Lessor, provided that: (i) Lessee continues
to be
primarily liable on its obligations as set forth herein; (ii) any
such assignee
or sublessee shall assume and be bound by all covenants and
obligations of
Lessee herewith; (iii) the proposed assignee or sublessee is, in
Lessor's good
faith judgement, compatible with other tenants in the Building and
seeks to use
the Premises only for the Permitted Lessee and for a use that is
not prohibited
under the terms of a lease with another tenant in the Building; and
(iv) such
use would not result in a material change in the number of
personnel working in,
or members of the general public visiting, the Premises.
In
addition to other reasonable bases, Lessee hereby agrees that
Lessor
shall be deemed to be reasonable in withholding its consent, if:
(a) such
proposed assignment or sublease is for a term less than the whole
of the
remaining Lease term; or (b) Lessee is in default under any of the
terms,
covenants, conditions, provisions and agreements of this lease at
the time of
request for consent or on the effective date of such subletting or
assignment;
or (c) the proposed subtenant or assignee is, in Lessor's good
faith judgement,
incompatible with other tenants in the Building, or seeks to use
any portion of
the Premises for a use not consistent with other uses in the
Building, or is
financially incapable of assuming the obligations of this Lease; or
(d) the
proposed assignee or sublessee or its business is subject to
compliance with
additional requirements of the law (including related regulation)
commonly known
as the "Americans With Disabilities Act" beyond those requirements
which are
applicable to the Lessee, unless the proposed assignee or sublessee
shall (i)
first deliver plans and specifications for complying with such
additional
requirements and obtain Lessors consent thereto, and (ii) comply
with all
Lessor's conditions for or contained in such consent, including
without
limitation, requirements for security to assure the lien-free
completion of such
improvements by and at the sole cost and expense of Lessee or its
sublessee or
assignee. Lessee shall submit to Lessor the name of the proposed
assignee or
subtenant, the terms of the proposed assignment or subletting, the
nature of the
proposed subtenant's or assignee's business and such information as
to the
assignee's or subtenant's financial responsibility and general
reputation as
Lessor may reasonably require.
No
subletting or assignment, even with the consent of Lessor, shall
relieve
Lessee of its primary obligation to pay the Rent and to perform all
of the other
obligations to be performed by Lessee hereunder. The acceptance of
Rent by
Lessor from any other person or entity shall not be deemed to be a
waiver by
Lessor of any provision of this Lease or to be a consent to any
assignment,
subletting or other transfer, or a novation. Consent to one
assignment,
subletting or other transfer shall not be deemed to constitute
consent to any
subsequent assignment, subletting or transfer.
In
the case of a proposed subletting of a portion of the Premises,
Lessor
may, at Lessor's
(initials)
6
<PAGE>
option, elect to terminate the Lease with respect to that portion
of the
Premises being proposed for subletting. The effective date of any
such
termination shall be thirty (30) days after the proposed effective
date of any
proposed assignment or subletting.
One-half of any proceeds in excess of Lessee's Base Rent and
Lessee's pro
rata share of excess operating expenses which is received by Lessee
pursuant to
an assignment or subletting consented to by Lessor, less reasonable
brokerage
commissions actually paid by Lessee, and less other reasonable
costs incurred by
Lessee in connection with making the space available for lease,
shall be
remitted to Lessor as additional Rent within ten (10) days of
receipt by Lessee.
For purposes of this Paragraph, all money or value in whatever form
received by
Lessee from or on account of any party as consideration for an
assignment or
subletting shall be deemed to be proceeds received by Lessee
pursuant to an
assignment or subletting.
11.
LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE. Lessee will not
occupy
or use, or permit any portion of the Premises to be occupied or
used, or do or
permit to be done anything in or about the Building, for any
business or purpose
which is unlawful or immoral, in part or in whole, or deemed to be
hazardous in
any manner, or which will be disreputable or harmful to be
character or
reputation of the Building or which will be bothersome to other
tenants of the
Building or visitors to the Building, or which will be a nuisance.
Lessee will
not do anything or permit anything to be done in or about the
Premises or
Building which will in any way increase the rate of insurance on
the Building
and/or its contents; and in the event that, by reason of acts or
omissions of
Lessee there shall be an increase in rate of any insurance on the
Building or
its contents, then Lessee hereby agrees to pay such increase in
full and to
remedy such condition upon five (5) days written demand by
Lessor.
12.
INDEMNITY LIABILITY. Lessee indemnifies and save harmless Lessor of
and
from any and all fines, suit, claims, demands and actions of any
kind (including
expenses and attorney's fees) by reason of any breach, violation,
or
nonperformance of any condition hereof, including failure to abide
by the rules
of the Building, or any act or omission on the part of Lessee, its
agents,
invitees, or employees. Lessee is familiar with the Premises and
acknowledges
that the same are received by Lessee in good state of repair and
accepted by
Lessee in the condition in which they are now or shall be when
ready for
occupancy. Lessor shall not be liable to Lessee or Lessee's agents,
employees,
invitees or visitors for any damage to persons or property due to
condition,
design, or defect in the Building, or its mechanical systems, or in
the
Premises, which may now exist or hereafter occur unless such damage
is due to
the negligence or wilful misconduct of Lessor. Upon completion of
the tenant
improvements to be installed in the Premises, Lessee accepts the
Premises as
suitable for the purposes for which the same are leased and assumes
all risks of
damage to persons or property, and agrees that no representations
except such as
are contained herein or endorsed hereon have been made to the
Lessee respecting
the condition of the Premises.
13.
RULES OF BUILDING. Lessee and Lessee's agents, employees, invitees
and
visitors shall comply fully with all requirements of the rules of
the Building
and of the Fitness Center (if applicable) which may be made by
Lessor. A copy of
such rules shall be furnished
(initials)
7
<PAGE>
to Lessee and such rules may be changed or amended by Lessor from
time to time.
If the present version of said rules shall be printed on a separate
schedule,
such schcdule(s) shall be attached to this Lease as Exhibit "C" and
made a part
hereof as fully and completely as though copied herein in
detail.
14.
ENTRY FOR REPAIRS AND INSPECTION. Lessee will permit Lessor or
its
officers, agents or representatives the right to enter into and
upon any and all
parts of the Premises, during normal business hours with advance
notice to
inspect same or clean or make repairs or alterations or additions
as Lessor may
deem necessary or desirable, and Lessee shall not be entitled to
any abatement
or reduction of rent by reason thereof; provided, however, that
nothing herein
requires Lessor to make any such repairs, alterations or additions.
Lessor shall
be entitled to enter upon the Premises at any time to make
emergency repairs.
15.
USE OF BUILDING NAME. The Lessee shall not, except to designate
the
Lessee's business address (and then only in a conventional manner
and without
emphasis or display) use the name of the Building or any simulation
or
abbreviation of such name for any purpose whatsoever. The Lessor
reserves the
right to change the name of the Building at any time. The Lessee
will
discontinue using such name, and any simulation or abbreviation
thereof for the
purpose of designating the Lessee's business address within thirty
(30) days
after the Lessor shall notify the Lessee that the Building is no
longer known by
such name.
16.
GRAPHICS. Lessor will furnish and install a suitable building
directory
and establish suite numbers to facilitate locating and identifying
Lessee's
Premises. In order to effect uniformity, to control graphics, and
to maintain
dignified aesthetics, Lessor will also furnish and install at the
entrance
door to Lessee's Premises a uniform suite number plate and a name
plate, at
Lessor's sole expense. All signs, letters, and numerals shall be in
the graphics
standard for the Building and no others shall be used or permitted
on the
Premises without Lessor's prior written consent.
17.
DEFACING PREMISES AND OVERLOADING. Lessee shall not place anything
or
allow anything to be placed on or near any door, partition, wall or
window which
may be unsightly from outside the Premises, and Lessee shall not
place or permit
to be placed any article of any kind on any window ledge or on the
exterior
walls, windows, blinds, shades, awnings or other forms of inside or
outside
window coverings. No inside or outside window coverings or window
ventilators,
or similar devices, shall be placed in or about the outside windows
in the
Premises except to the extent, if any, that the character, shape,
color,
material and make thereof is first approved by the Lessor, and
Lessee shall not
do any painting or decorating in the Premises or make, paint, cut
or drill into,
or in any way deface any part of the Premises or Building without
the prior
consent of Lessor. Lessee shall not overload any floor or part
thereof in the
Premises, or any facility in the Building or any public corridors
or elevators
therein, and shall not bring in or remove any large or heavy
articles, without
Lessor's prior written consent. Lessor may direct and control the
locations of
safes and all other heavy articles. Furniture and other large or
heavy articles,
may be brought into the Building, removed therefrom or moved from
place to place
within the Building only at times and in the manner designated by
Lessor. Lessee
agrees not to place any load on any portion of the Premises or
(initials)
8
<PAGE>
other portions of the Building or its equipment that would exceed
the allowable
load limits for the Building, as specified by Lessor.
18.
LIABILITY INSURANCE. Lessee and Lessor 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 with the premiums thereon fully paid on or before due
date, issued by
and binding upon an insurance company approved by Lessor, such
insurance to
afford minimum protection of not less than $1,000,000 per
occurrence combined
single limit coverage of bodily injury, property damage or
combination thereof.
Lessor shall not be required to maintain insurance against thefts
within the
Premises, or the Building. If requested by either party, the
requested party
shall promptly deliver to the other certificates or other
satisfactory evidence
of insurance indicating that all premiums have been paid and that
the policies
are in full force and effect.
19.
CASUALTY INSURANCE. Lessor shall at all times during the term of
this
Lease maintain a policy or policies of insurance with the premiums
paid in
advance, issued by and binding upon some solvent insurance company,
insuring the
Building against loss or damage by fire, explosion or other hazards
and
contingencies for the full insurable value; provided, that Lessor
shall not be
obligated in any way or manner to insure any personal property
(including, but
not limited to, any furniture, machinery, goods or supplies) of
Lessee or which
Lessee may have upon or within the Premises or any fixtures
installed by or paid
for by Lessee upon or within the Premises or any additional
improvements which
Lessee may construct on the Premises. Lessee shall maintain, at all
times during
the term of this Lease, adequate insurance on its personal property
and other
improvements within the Premises.
20.
CONDEMNATION. If the Premises, or any part thereof, or any
interest
therein, be taken by virtue of (or sold under threat of) eminent
domain or for
any public or quasi-public use or purpose, this Lease and the
estate hereby
granted, at the option of the Lessor, shall terminate as of the
date possession
transfers to the condemning authority. If any part of the Building
other than
the Premises be so taken, the Lessor shall have the right to
terminate this
Lease at the date of such taking or within six (6) months
thereafter by giving
the Lessee thirty (30) days prior written notice of the date of
such
termination. Any interest which Lessee may have or claim to have
against the
condemning authority in any award resulting from any condemnation
proceedings
shall be limited to removal and relocation expenses for Lessee's
furniture,
movable fixtures, and other personal property, and interruption to
business
expenses.
21.
LOSS OR DAMAGE. Lessor shall not be liable or responsible for any
loss
or damage to any property or person occasioned by theft, fire,
water, wind,
vandalism, rain, snow, leakage of Building, act of God, public
enemy,
injunction, riot, strike, insurrection, war, court order,
requisition or order
of governmental body or authority, unavailability of fuel or
energy, or other
matter beyond the control of Lessor, or for any damage or
inconvenience which
may arise through repair or alteration of any part of the Building,
or failure
to make such repairs, or from any cause, whatever unless caused
solely by
Lessor's negligence or wilful misconduct.
22.
ABANDONMENT. If the Premises are abandoned by Lessee, Lessor shall
have
(initials)
9
<PAGE>
the right, but not the obligation, to relet same for the remainder
of the period
covered hereby; and if the rent is not received through such
reletting at least
equal to the rent provided for hereunder, Lessee shall pay and
satisfy any
deficiencies between the amount of the rent called for and that
received through
reletting, and all expenses incurred by such other reletting
including but
not limited to the cost of renovating, altering and decorating for
a new
occupant. Nothing herein shall be construed as in any way denying
Lessor the
right, in case of abandonment of the Premises, or other breach of
this Contract
by Lessee, to treat the same as an entire breach of this Contract
and any and
all damages occasioned Lessor thereby, or pursue any other remedy
provided by
law or this Lease.
23.
HOLDING OVER. In case of holding over by Lessee after expiration
or
termination of this Lease without Lessor's prior written consent,
Lessee will
pay as rent for each month or part thereof, during such holdover
period, twice
the rent provided in Paragraph 4(a) above. No holding over by
Lessee after the
term of this Lease without consent and acquiescence of Lessor shall
operate to
extend the Lease for a longer period than one (1) month; and any
holding over
with the prior written consent of Lessor shall thereafter
constitute a rental
from month to month, at the rent specified in this Paragraph
23.
24.
LOSS BY FIRE OR OTHER CAUSES. Lessee shall, in case of fire, or
loss or
damage to the Premises from other causes, give immediate notice
thereof to
Lessor. In the event of damage to the Premises by fire or other
causes resulting
from fault or negligence of Lessee or Lessee's agents, employees,
invitees or
visitors, the same shall be repaired by and at the sole expense of
Lessee under
the direction and supervision of Lessor or if such damage is
covered by Lessor's
casualty insurance, Lessee shall be fully responsible for
satisfying any
deductible amount payable in connection with a claim made on its
behalf. Lessor
agrees, at its expense, to repair promptly any damage of the
Premises not
resulting from the fault or negligence of Lessee or Lessee's
agents, employees,
invitees or visitors, except that Lessee agrees to repair and
replace its own
furniture, furnishings, fixtures, personal property, and equipment,
and the
rent, until such repairs shall be made, shall be equitably
apportioned according
to the part of the Premises which is usable by Lessee, except that,
if such
damage be so extensive that the replacement of all or substantially
all of the
Building be required, then and in that event, at the option of
Lessor, this
Lease will be canceled and of no force and effect from after the
date of the
occurrence of such damage. No penalty shall accrue for reasonable
delay which
may arise by reason of adjustment of insurance on the part of
Lessor, and for
reasonable delay on account of causes beyond Lessor's control (such
as described
in Paragraphs 5 and 21 hereof).
25.
WAIVER OR SUBROGATION RIGHTS. Anything in this Lease to the
contrary
notwithstanding, Lessor and Lessee each hereby waives any and all
rights of
recovery, claim, action, or cause of action, against the other, its
agents,
officers, or employees, for any loss or damage that may occur to
the Premises,
or any improvements thereto, or the Building of which the Premises
are a part,
or any improvements thereto, or any personal property of such party
therein, by
reason of fire, the elements, or any other cause(s) which are
insured against
policies referred to in Paragraphs 18 and 19 hereof, regardless of
cause or
origin, including negligence of the other party hereto, its agents,
officers, or
employees. Lessor and Lessee will
(initials)
10
<PAGE>
both exert their best efforts to cause all insurance policies to
include an
endorsement to effect the provision of this Section. '
26.
ATTORNEY'S FEES. In the event that either party defaults in the
performance of any of the terms, covenants, agreements or
conditions contained
in this Lease and the aggrieved party places the enforcement of
this Lease, or
any part thereof, or the collection of any rent or other sum due,
or to become
due hereunder, or recovery of the possession of the Premises, in
the hands of an
attorney, or files suit upon the same, the defaulting party agrees
to pay the
prevailing party's reasonable attorney's fees and all reasonable
costs and
expenses, and payment of the same shall be secured in like manner
as is herein
provided, as to security for rent.
27.
AMENDMENT OF LEASE. This agreement may not be altered, changed,
or
amended, except by an instrument in writing, signed by all parties
hereto.
28.
TRANSFER OF LESSOR'S RIGHTS. Lessor shall have the right to
transfer
and assign in whole or in part all and every feature of its rights
and
obligations hereunder and in the Building and property referred to
herein. Such
transfers or assignments may be made either to a corporation,
partnership,
trust, individual or group of individuals, and, howsoever made, are
to be in all
things respected and recognized by Lessee.
29.
DEFAULT BY LESSEE. The following shall be deemed to be events
of
default under this Lease:
(a) Lessee shall fail to pay within ten (10) days of when due
any
installment of rent or any other payment required pursuant to this
Lease;
(b) Lessee shall abandon any substantial portion of the
Premises;
(c) Lessee shall fail to comply with any term, provision or
covenant
of this Lease, other than the payment of rent, and the failure is
not cured
within twenty (20) days after written notice to Lessee;
(d) Lessee shall file a petition or be adjudged bankrupt or
insolvent
under the National Bankruptcy Act, as amended or any similar law or
statute of
the United States or any state; or a receiver or trustee shall be
appointed for
all or substantially all of the assets of Lessee; or Lessee shall
make a
transfer in fraud of creditors or shall make an assignment for the
benefit of
creditors;
(e) Lessee shall do or permit to be done any act which results in
a
lien being filed against the Premises; or
(f) There shall occur, during any twelve (12) month period during
the
term of this Lease, more than two (2) events of default, as
specified in
subsections (a) through (e) above, regardless of whether such
defaults have been
cured by Lessee within the allowed grace periods.
30.
REMEDIES FOR LESSEE'S DEFAULT. Upon the occurrence of any event
of
default set forth in this Lease Agreement, Lessor shall have the
option to
pursue any one or more of the following remedies without any notice
or demand:
(a) Terminate this Lease, in which event Lessee shall
immediately
surrender
(initials)
11
<PAGE>
the Premises to Lessor, and if Lessee fails to surrender the
Premises, Lessor
may, without prejudice to any other remedy which it may have for
possession or
arrearages in rent, enter upon and take possession of the Premises,
and lock
out, expel or remove Lessee and any other person who may be
occupying all or any
part of the Premises without being liable for prosecution of any
claim for
damages. Lessee agrees to pay on demand the amount of all loss and
damage which
Lessor may suffer by reason of the termination of the Lease under
this
subparagraph, whether through inability to relet the Premises on
satisfactory
terms or otherwise;
(b) Enter upon and take possession of the Premises, and lock
out,
expel or remove Lessee and any other person who may be occupying
all or any part
of the Premises without being liable for any claim for damages, and
relet the
Premises on behalf of Lessee and receive directly the rent by
reason of the
reletting. Lessee agrees to pay Lessor on demand any deficiency
that may arise
by reason of any reletting of the Premises; further Lessee agrees
to reimburse
Lessor for any expenditures made by it for remodeling or repairing
in order to
relet the Premises;
(c) Enter upon the Premises, without being liable for prosecution
of
any claim for damages, and do whatever Lessee is obligated to do
under the terms
of this Lease. Lessee agrees to reimburse Lessor on demand for any
expenses
which Lessor may incur in effecting compliance with Lessee's
obligations under
this Lease; further, Lessee agrees that Lessor shall not be liable
for any
damages resulting to Lessee from effecting compliance with Lessee's
obligations
under this subparagraph caused by the negligence of Lessor or
otherwise.
31.
WAIVER OF DEFAULT OR REMEDY. Failure of Lessor to declare an event
of
default immediately upon its occurrence, or delay in taking any
action in
connection with an event of default, shall not constitute a waiver
of the
default, but Lessor shall have the right to declare the default at
any time and
take such action as is lawful or authorized under this Lease,
Pursuit of any one
or more of the remedies set forth in Paragraph 30 above shall not
preclude
pursuit of any one or more of the other remedies provided elsewhere
in this
Lease or provided by law, nor shall pursuit of any remedy provided
constitute a
forfeiture or waiver of any rent or damages accruing to Lessor by
reason of the
violation of any of the terms, provisions or covenants of this
Lease. Failure by
Lessor to enforce one or more of the remedies provided upon an
event of default
shall not be deemed or construed to constitute a waiver of the
default or of any
violation or breach of any of the terms, provisions and covenants
contained in
this Lease.
32.
RIGHTS OF MORTGAGEE. Lessee accepts this Lease subject and
subordinate
to any recorded mortgage, deed of trust or other lien presently
existing upon
the Premises. Lessor is hereby irrevocably vested with full power
and authority
to subordinate Lessee's interest under this Lease to any mortgage,
deed of trust
or other lien hereafter placed on the Premises, and Lessee agrees
upon demand to
execute additional instruments subordinating this Lease as Lessor
or its
Mortgagee may require. If the interests of Lessor under this Lease
shall be
transferred by reason of foreclosure or other proceedings for
enforcement of any
mortgage on the Premises, Lessee shall be bound to the transferee
(sometimes
called the "Purchaser") under the terms, covenants and conditions
of this Lease
for the balance of the term remaining, and any extensions or
renewals, with the
same force and effect as if the Purchaser were Lessor under this
Lease, and
Lessee agrees to attorn to the Purchaser, including the mortgagee
under any such
(initials)
12
<PAGE>
mortgage if it be the Purchaser, as its Lessor, the attornment to
be effective
and self-operative without the execution of any further instruments
upon the
Purchaser succeeding to the interest of Lessor under this Lease.
The respective
rights and obligations of Lessee and the Purchaser upon the
attornment, to the
extent of the then remaining balance of the term of this Lease, and
any
extensions and renewals, shall be and are the same as those set
forth in this
Lease and Lessor agrees to use its best reasonable efforts to
obtain a
Subordination and Non-Disturbance Agreement from its mortgagee to
this effect.
33.
ESTOPPEL CERTIFICATES. Lessee agrees to furnish promptly, from time
to
time, upon request of Lessor or Lessor's mortgagee, a statement
certifying that,
to the extent that such is true and correct, Lessee is in
possession of the
Premises; the Premises are acceptable; the Lease is in full force
and effect;
the Lease is unmodified; Lessee claims no present charge, lien, or
claim of
offset against rent; the rent is paid for the current month, but is
not paid and
will not be paid for more than one (1) month in advance; there is
no existing
default by reason of some act or omission by Lessor; and such other
matters as
may be reasonably required by Lessor or Lessor's mortgagee.
34.
SUCCESSORS. This Lease shall be binding upon and inure to the
benefit
of Lessor and Lessee and their respective heirs, personal
representatives,
successors and assigns. It is hereby covenanted and agreed that
should Lessor's
interest in the Premises cease to exist for any reason during the
term of this
Lease, then notwithstanding the happening of such event this Lease
nevertheless
shall remain unimpaired and in full force and effect and Lessee
hereunder agrees
to attorn to the then owner of the Premises.
35.
RENT TAX. Lessee shall pay and be liable for all rental, sales and
use
taxes or other similar taxes, if any, levied or imposed by any
city, state,
county or other governmental body having authority, such payments
to be in
addition to all other payments required to be paid to Lessor by
Lessee under the
terms of this Lease. Any such payment shall be paid concurrently
with the
payment of the rent upon which the tax is based as set forth
above.
36.
PARKING. During the term of this Lease, Lessee shall have the
nonexclusive use in common with Lessor, other tenants of the
Building, their
guests and invitees, of the nonreserved common automobile parking
areas,
driveways, and footways, subject to rules and regulations for the
use thereof as
prescribed from time to time by Lessor. Lessor shall have the right
to reserve
parking spaces as it elects and condition use thereof on such terms
as it
elects. Lessor hereby grants to Lessee the exclusive right to use
three (3)
reserved parking spaces in the Building's parking garage as shown
on EXHIBIT "D"
attached hereto at no charge to Lessee during the initial term of
this Lease.
37.
INTEREST. Monies owed by Lessee to the Lessor shall, after due
date,
bear interest rate at the maximum legal rate.
38.
CONTINUATION OF LEASE AFTER TERMINATION. No receipt of money by
Lessor
from Lessee after the termination of this Lease, or after the
service of any
notice, or after commencement of any suit, or after final judgment
for
possession of the Premises shall
(initials)
13
<PAGE>
reinstate, continue or extend the term of this Lease or affect any
such notice,
demand or suit.
39.
NOTICES. Any notice or document required or permitted to be
delivered
hereunder shall be deemed to be delivered or given when (a)
actually received
or (b) signed for or "refused" as indicated on the postal service
return
receipt. Delivery may be by personal delivery or by United States
mail, postage
prepaid, certified or registered mail, or by deposit with a
nationally
recognized express courier addressed to the parties hereto at the
respective
addresses set out opposite their names below, or at such other
address as they
may hereafter specify by written notice delivered in accordance
herewith:
LESSOR: 1511 N. Westshore Partners, Ltd., c/o Towermarc
Corporation,
1511 N. Westshore Boulevard, Suite 200, Tampa, Florida 33607.
LESSEE: Vision Care, Inc., 1511 N. Westshore Boulevard, Suite
1000,
Tampa, Florida 33607.
40.
CHARGES FOR SERVICES. It is further understood and agreed that
any
expenses Lessor may incur for any materials, supplies, services, or
for work
done on the Premises by order of the Lessee other than the initial
tenant
improvements being installed by Lessor pursuant to Paragraph 51
hereof,
including an amount equal to ten percent (10%) of such expenses for
Lessor's
administration and performance of such service or charges, shall be
promptly
paid by Lessee to Lessor, and shall be included in any lien for
rent due and
unpaid.
41.
SCHEDULES. All schedules initialed by both parties hereto and
attached
to this Lease shall be a part of this Contract whether or not said
schedules are
specifically referred to in the Lease.
42.
SEPARABILITY. In the event that any provisions or part of a
provision
of this Lease is held invalid, the other provisions and parts of
provisions
shall remain in full force and effect,
43.
GOVERNING LAWS. This Lease shall be governed by and construed
according
to the laws of the State of Florida.
44.
CAPTIONS. Captions are inserted for convenience only, and shall
not
affect or limit the construction of this Lease.
45.
LESSOR'S LIEN. A first lien and security interest is hereby
expressly
reserved by Lessor and granted by Lessee upon the terms of this
Lease Agreement
and in and to all interest in this Leasehold for the payment of
rent for the
performance of any other obligations, and for the satisfaction of
any cause of
action which may accrue to the Lessor by the provisions of this
Lease Agreement.
A first lien and security interest is also expressly reserved by
Lessor and
granted by Lessee in and to all personal property, furniture,
fixtures,
improvements, and all other property which Lessee may have, bring,
use, erect,
or put in place or that may be had, bought, used, erected, or put
in place upon
the Premises by or through Lessee or other persons
(initials)
14
<PAGE>
for the payment of rent and also for the satisfaction of any causes
of action
which may accrue to Lessor by the provisions of this Lease
Agreement. Lessee
hereby agrees to execute any instrument required by the Lessor in
order to
perfect its security interest hereunder. Notwithstanding anything
to the
contrary contained herein, if Lessee is not in default under the
terms and
conditions of this Lease, Lessor agrees to subordinate its first
lien and
security interest granted herein in all personal property,
furniture, fixtures
and improvements of Lessee in the Premises to the lien and security
interest of
a bona fide third party providing financing or equipment leasing to
Lessee.
Lessor agrees to execute such documents reasonably required to
affect such
subordination, provided such documents are reasonable in Lessor's
sole
discretion.
46.
NO LIENS. Anything to the contrary, herein notwithstanding, if
Lessee
makes any repairs or alterations to the Premises, whether or not
with Lessor's
prior consent, the Lessor's interest in the Building and Premises
shall not be
subject to liens for improvements made by the Lessee.
47.
SHOWING PREMISES. Lessor shall have the right during normal
business
hours, and upon reasonable notice to Lessee, to show the Premises
to prospective
purchasers or mortgagees of the Building and during the last twelve
(12) months
of the Lease term to show the Premises to prospective tenants.
48.
COMMISSIONS. Lessor and Lessee hereby indemnify and agree to hold
each
other harmless against any loss, claim, expense or liability with
respect to any
commissions or brokerage fees claimed on account of the execution
and/or renewal
of this Lease due to any action of the indemnifying party.
49.
LONG FORM LEASE. This "Long Form Lease" shall not be recorded, but
it
is agreed that the parties hereto may, at the option of either
party, be
required to execute a short form of this "Long Form Lease" and that
the short
form may be recorded. It is agreed that this "Long Form Lease"
shall prevail in
the event that any of the provisions of the "Short Form Lease"
conflict with the
provisions of this "Long Form Lease."
50.
TENANT IMPROVEMENTS. Lessor hereby agrees to provide certain
tenant
improvements in the Premises, at no charge to Lessee, generally in
accordance
with the Schematic Space Plan attached hereto as EXHIBIT "A-l" and
in accordance
with the Workletter attached hereto as EXHIBIT "B". In the event
that the Lessee
shall make or direct any changes to be made to the tenant
improvements which do
not conform to EXHIBIT "A-l" or the Workletter, which changes
result in an
increase in the cost of the tenant improvements to Lessor, such
excess costs
shall be the sole responsibility of Lessee.
51.
HAZARDOUS MATERIALS. Lessee hereby agrees that it will not cause
or
permit the storage, use, generation or disposition of any Hazardous
Materials
(as defined below) in, on, or about the Premises or the Property,
by Lessee, its
agents, employees or contractors. Lessee will not permit the
Premises to be used
or operated in a manner that may cause the Premises or the Property
to be
contaminated by any Hazardous Materials in violation of any
Hazardous Materials
Laws. Lessee will immediately advise Lessor in writing of (i) any
and all
(initials)
15
<PAGE>
enforcement, cleanup, remedial, removal, or any other governmental
or regulatory
actions instituted, completed or threatened pursuant to any
Hazardous Materials
Laws relating to any Hazardous Materials affecting the Premises,
and (ii) all
claims made or threatened by any third party Lessee, Lessor or the
Premises,
relating to damage, contribution, cost recovery, compensation, loss
or injury
resulting from any Hazardous Materials on or about the Premises.
Without
Lessor's prior written consent, Lessee will not take any remedial
action or
enter into any agreements for settlements in response to the
presence of any
Hazardous Materials in, on or about the Premises.
Lessee will be solely
responsible for and will defend, indemnify and hold
Lessor, its agent and employees harmless from and against any and
all claims,
costs and liabilities, including attorneys fees and costs, arising
out of or in
connection with Lessee's breach of its obligations in this
Paragraph 51. Lessee
will be solely responsible for and will defend, indemnify, and hold
Lessor, its
agents, and employees, harmless from and against any and all
claims, costs, and
liabilities, including attorneys fees and costs, arising out of or
in connection
with the removal, cleanup, and restoration work and materials
necessary to
return the Premises and any other property of whatever nature
located on the
Property to their condition existing prior to the appearance of
Lessee's
Hazardous Materials on the Premises. Lessee's obligations under
this Paragraph
51 will survive the expiration or other termination of this
Lease.
For
the purpose of this Section of the Lease, "Hazardous Materials"
means
any explosives, radioactive materials, hazardous wastes, or
hazardous
substances, including without limitation substances defined as
"Hazardous
Substances" in the Comprehensive Environmental Response
Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601-9657; the
Hazardous
Materials Transportation Act of 1975, 49 U.S.C. Sec. 1801-1812; the
Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sec. 6901-6987; or
any other
federal, state, or local statute, law, ordinance, code, rule,
regulation, order,
or decree, regulating, relating to or imposing liability or
standards of conduct
concerning hazardous materials, wastes or substances now or at any
time
hereinafter in effect (collectively, "Hazardous Materials
Laws").
Notwithstanding anything to the contrary contained herein, Lessee
hereby
disavows and disclaims any knowledge, responsibility, or liability
whatsoever as
to the presence of any Hazardous Materials which may be present on
the Premises,
the Building, or the Property, on or before the date Lessee has
occupied the
Premises. Lessor hereby agrees that it shall defend, indemnify, and
hold Lessee,
its agents and employees harmless from and against any and all
claims, costs,
and liabilities, including attorneys fees and costs arising out of
or in
connection with any Hazardous Materials which may be present on the
Premises,
the Building, or the Property prior to Lessee's date of occupancy
of the
Premises.
52.
RADON DISCLOSURE. Radon is a naturally occurring radioactive gas
that,
when it has accumulated in a structure in sufficient quantities,
may present
health risks to persons who are exposed to it. Levels of radon that
exceed
federal and state guidelines have been found in structures in the
State of
Florida. Additional information regarding radon and radon testing
may be
acquired from the county Public Health Unit. Lessor makes no
representations to
Lessee concerning the presence or absence of radon gas in the
Premises or
(initials)
16
<PAGE>
the Building at any time or in any quantity. By executing this
Lease, Lessee
expressly releases Lessor from any loss, claim, liability or damage
now or
hereafter arising from or relating to the presence at any time of
such
substances in the Premises or the Building.
53.
NO MERGER. The voluntary or other surrender of this Lease by Lessee
for
the cancellation of this Lease by mutual agreement of Lessee and
Lessor or the
termination of this Lease on account of Lessee's default, will not
constitute a
merger, and will, at Lessor's option (a) terminate all or any
subleases and
subtenancies, or (b) operate as an assignment to Lessor of all or
any subleases
or subtenancies. Lessor's option under this Paragraph 42 will be
exercised by
written notice to Lessee and all known sublessee's or subtenants in
the Premises
or any part of the Premises.
54.
EXTERIOR BALCONIES. In addition to the use of the Premises,
Lessor
hereby grants to Lessee the right to use each of the four (4)
exterior balconies
accessed from the Premises on the tenth floor of the Building.
Lessee hereby
acknowledges that it assumes all risk for the safety and welfare of
its
employees, contractors, agents, guests, and invitees in the use of
said
balconies and Lessee hereby agrees to release, indemnify, and hold
harmless
Lessor, its agents, contractors, officers, directors, and
affiliates from and
against any and all liability, and claims or causes of action
resulting from
Lessee's use of said balconies, including without limitation,
bodily injury,
death, or property damage. Lessee hereby agrees to use the
balconies in a safe
and proper manner at all times during the term of this Lease.
55.
CONDITION OF LEASE. This Lease Agree
