<PAGE>
Exhibit 10.49
SIXTH AMENDMENT TO LEASE AGREEMENT FOR OFFICE FACILITIES
This
Sixth Amendment to Office Building Lease (hereinafter the
"Sixth
Amendment") is made this day of April 19, 2006, by and between
Metropolitan Life
Insurance Company, a New York corporation (as successor-in-interest
from WRC
Properties, Inc.) (the "Landlord") and CompBenefits Dental and
Vision, a Florida
Corporation (the "Tenant").
WITNESSETH:
WHEREAS, by lease dated April 6, 1995 (the "Lease"), Landlord
leased to
Tenant certain premises at 5775 Waterford at Blue Lagoon (the
"Building") 5775
Blue Lagoon Drive, Miami, Florida 33126 and being office space on
the third
(3rd) and fourth (4th) floors, known as Suite 325 and Suite 400
(the
"Premises"), consisting of 15,969 rentable square feet; and
WHEREAS, said Lease was amended by that certain First Amendment to
Office
Lease Agreement dated September 6, 1995 (the "First Amendment"),
Landlord and
Tenant agreed to expand the Original Premises by 4,341 rentable
square feet,
known as Suite 137, 320 and 330; and
WHEREAS, said Lease was further amended by that certain Second
Amendment to
Lease Agreement dated February 11, 1997 (the "Second Amendment"),
Landlord and
Tenant agreed to expand the Original Premises by 1,056 rentable
square feet,
known as Suite 310; and
WHEREAS, said Lease was further amended by that certain Third
Amendment to
Lease Agreement for Office Facilities dated June 11, 1997 (the
"Third
Amendment"), Landlord and Tenant agreed to expand the Original
Premises by 1,155
rentable square feet, known as Suite 340; and
WHEREAS, said Lease was further amended by that certain Fourth
Amendment to
Lease Agreement for Office Facilities dated November 5, 1997 (the
"Fourth
Amendment"), Landlord and Tenant agreed to expand the Original
Premises by 7,394
rentable square feet, known as Suite 200; and
WHEREAS, said Lease was further amended by that certain Fifth
Amendment to
Lease Agreement for Office Facilities dated October 29, 2001 (the
"Fifth
Amendment"), Tenant extended the Term of the Lease Agreement and
reduced the
size of the Original Premises (15,969 rentable square feet)(the
Lease, First
Amendment, Second Amendment, Third Amendment, Fourth Amendment and
Fifth
Amendment hereinafter collectively referred to as the "Lease
Agreement"); and
WHEREAS, Tenant desires to extend the term of the Lease in
accordance with
the terms hereinafter set forth; and
WHEREAS, Landlord and Tenant wish to document their agreement with
respect
thereto.
NOW,
THEREFORE, in consideration of the mutual covenants contained
herein
and in consideration of TEN AND NO/100 DOLLARS ($10.00) and other
good and
valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. INCORPORATION
OF RECITAL.
The
above recital is true and correct and is incorporated herein as if
set
forth in full.
2. GENERAL
PROVISIONS.
All
defined terms in this Sixth Amendment shall have the same meaning
as in
the
Lease Agreement, except as otherwise noted. Except as amended
and
modified by this Sixth Amendment, all the terms, covenants,
conditions and
agreement of the Lease Agreement shall remain in full force and
effect. In
the
event of any conflict, between the provisions of the Lease
Agreement
and
the provisions of this Sixth Amendment, this Sixth Amendment
shall
control.
SIXTH AMENDMENT TO LEASE AGREEMENT FOR OFFICE FACILITIES
CompBenefits Dental & Vision
Page 1 of 11
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3. BASE
RENTAL.
Effective January 1, 2006, the Base Rental, as stated in Paragraph
10 of
the
Fifth Amendment shall be deleted in its entirety and the
following
shall be substituted in lieu thereof:
<TABLE>
<CAPTION>
Annual Rent Rate Per
Rentable Square Feet Annualized
Monthly
From To
of the Premises Base Rental
Base Rental
----
--------
-------------------- ----------- -----------
<S>
<C>
<C>
<C>
<C>
01/01/06
12/31/06
$21.25
$339,341.25
$28,278.44
01/01/07
12/31/07
$21.89
$349,561.41
$29,130.12
01/01/08
12/31/08
$22.54
$359,941.26
$29,995.11
01/01/09
12/31/09
$23.22
$370,800.18
$30,900.02
01/01/10
12/31/10
$23.92
$381,978.48
$31,831.54
01/01/11
12/31/11
$24.63
$393,316.47
$32,776.37
01/01/12
12/31/12
$25.37
$405,133.53
$33,761.13
01/01/13
12/31/13
$26.13
$417,269.97
$34,772.50
01/01/14
12/31/14
$26.92
$429,885.48
$35,823.79
01/01/15
12/31/15
$27.73
$442,820.37
$36,901.70
</TABLE>
4. LEASE
TERM.
The
Lease Term, as stated in Paragraph 3 of the Fifth Amendment, shall
be
extended such that the new expiration date shall become December
31, 2015.
5. OPERATING
EXPENSE ADJUSTMENTS.
Tenant shall continue to pay as additional rent Tenant's pro rata
share of
Operating Expenses applicable to the Premises in accordance with
the Lease
Agreement, with the exception that effective on January 1, 2006,
the
Expense Stop with regard to the Premises shall be the greater of
$10.07 per
square foot per year or the actual Operating Expense amount for
2006.
Effective January 1, 2006, Tenant's pro rata share is 27.28% which
is
calculated by dividing the agreed rentable area of the Premises
(15,969
RSF)
by the total agreed rentable area of the Building (58,119 RSF).
6. TENANT
IMPROVEMENT ALLOWANCE.
(a)
Tenant, at its election, will submit plans before the end of 2006
for
any
improvements which require a permit.
(b)
Tenant's Plans shall be subject to Landlord's review and
approval,
which shall not be unreasonably withheld. Landlord shall accept or
notify
Tenant of its objections to Tenant's Plans within five (5) days
after
receipt thereof. Should Tenant fail to submit Tenant's Plans within
the
time
period set forth in subsection (a) above, or fail to make any
modifications Landlord may reasonably require within ten (10) days
of
notice thereof, then every day subsequent to the tenth (10th) day
shall be
a
delay caused by Tenant and Paragraph 6 (g) of this Sixth Amendment
shall
apply. Notwithstanding Landlord's review and approval of Tenant's
Plans,
Landlord assumes no responsibility whatsoever, and shall not be
liable for
the
manufacturer's, architect's, or engineer's design or performance of
any
structural, mechanical, electrical, or plumbing systems or
equipment of
Tenant.
(c)
Once Landlord approves Tenant's Plans, Tenant shall, at
Tenant's
expense, provide Landlord with three (3) sets of Tenant's Plans,
which
shall be signed and dated by both parties. Changes to Tenant's
Plans shall
be
made thereafter only by written addendum signed by both
parties.
(d)
Within fifteen (15) days following receipt of the final
approved
Tenant's Plans, Landlord shall prepare an estimated budget (the
"Construction Budget") of the cost of the Tenant Improvements, and
shall
submit same to Tenant. The Construction Budget shall be in
reasonable
detail and shall reflect unit costs for all improvements which
are
reasonable and competitive in amount, given the then current
market
conditions pertinent to labor and material costs for such
SIXTH AMENDMENT TO LEASE AGREEMENT FOR OFFICE FACILITIES
CompBenefits Dental & Vision
Page 2 of 11
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construction. Tenant shall have five (5) business days from receipt
of the
Construction Budget to examine the Construction Budget and to
notify Landlord of
its objections thereto. The Construction Budget shall not be deemed
approved
until initialed by both parties. The Construction Budget shall be
used as a
basis for calculating Tenant's Costs, as hereinafter defined, if
any. Following
final completion of the Tenant Improvements, Landlord shall provide
Tenant with
a statement of actual costs thereof, including the costs of any
mutually
approved change orders.
Within fifteen (15) days following receipt of the final approved
Tenant's
Plans, Landlord shall also prepare a schedule (the "Work Schedule")
which will
set forth the time table for completion of the Tenant Improvements,
and shall
submit same to Tenant. Tenant shall then have five (5) business
days from
receipt of the Work Schedule to examine the Work Schedule and
notify the
Landlord of its objections thereto. The Work Schedule shall not be
deemed
approved until initialed by both parties. The Work Schedule will
set forth each
of the items of work to be done or approvals to be given by
Landlord and Tenant
in connection with the completion of the Tenant Improvements. All
Tenant
Improvements shall be performed in accordance with the Work
Schedule.
(e) Following approval of the Construction Budget and Work Schedule
and Tenant's
payment of Tenant's Costs, if any, Landlord shall commence and
diligently pursue
construction of the Tenant Improvements in accordance with Tenant's
Plans and
the Work Schedule. Landlord shall be paid a construction
supervision fee in
consideration for its services hereunder equal to three percent
(3%) of the
amount over the Tenant Improvement Allowance set forth in Paragraph
6 (i). Such
fee shall be payable by Tenant to Landlord one hundred percent
(100%) upon
commencement of construction.
(f) Landlord shall obtain all building permits necessary to
complete all Tenant
Improvements. Tenant shall bear the cost of all building
permits.
(g) In connection with Landlord's review of Tenant's Plans and
preparation of
the Construction Budget, Landlord shall advise Tenant in writing of
any special
material, finish, or fixture requested by Tenant that will result
in a delay in
Landlord's compliance with the Work Schedule. In such event, Tenant
shall either
modify its specifications so as not to delay construction or be
deemed to have
accepted responsibility for any resulting delay.
(h) Landlord shall provide Tenant with an allowance (the "Tenant
Improvement
Allowance") as a credit against the cost of the Tenant
Improvements.
Notwithstanding anything contained in the Lease to the contrary,
the Tenant
Improvement Allowance shall be equal to TEN DOLLARS AND NO/100
($10.00) per
square foot of Rentable Area of the Premises, which equates to the
total amount
of ONE HUNDRED FIFTY NINE THOUSAND SIX HUNDRED NINETY AND 00/100
($159,690.00).
To the extent that the total actual (as opposed to budgeted) costs
of the Tenant
Improvements exceeds the Tenant Improvement Allowance, and Tenant
has approved
all of such costs in writing in the Construction Budget or in
change orders,
Tenant shall pay the full amount of such excess ("Tenant's Costs")
as follows:
(i)
Prior to commencement
of construction of the Tenant Improvements,
Tenant shall pay Landlord an amount equal to one hundred
percent
(100%) of Tenant's Costs, as such amount is then determined by
reference to the Construction Budget.
(ii)
Within thirty (30) days following Landlord's submittal to Tenant of
a
final accounting of Tenant's Costs, Tenant shall pay Landlord the
then
remaining balance of Tenant's Costs, or Landlord shall
reimburse
Tenant any excess amounts previously paid, as the case may be.
(i) Tenant's Costs represent a reimbursement of monies expended by
Landlord on
Tenant's behalf. Payment when due shall be a condition to
Landlord's continued
performance under this Sixth Amendment. Any delay in construction
of the Tenant
Improvements resulting from Tenant's failure to make any Tenant's
Costs payments
when due shall be Tenant's responsibility. Tenant's failure to pay
any portion
of Tenant's Costs when due shall constitute a default under the
Lease (subject
to any applicable notice requirements or grace periods), entitling
Landlord to
all of its remedies thereunder.
SIXTH AMENDMENT TO LEASE AGREEMENT FOR OFFICE FACILITIES
CompBenefits Dental & Vision
Page 3 of 11
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(j)
In the event the total cost of the Tenant Improvements is less than
the
Tenant Improvement Allowance, Tenant shall not receive any credit
or
payment for any such unused portion of said Tenant Improvement
Allowance.
The
Tenant Improvement Allowance is available for use anytime during
2006,
including any work completed in 2007 based on any plans submitted
by the
end
of 2006. The Allowance may be used for some additional costs
including,
but
not limited to construction, the actual cost to move the furniture
and
boxes, low voltage cabling, phone and computer installation, or
signage.
7. BROKERS.
Landlord and Tenant each represent and warrant one to the other
that except
as
may be hereinafter set forth, neither of them has employed any
broker in
connection with the negotiations of the terms of this Sixth
Amendment or
the
execution thereof. Landlord and Tenant hereby agree to indemnify
and to
hold
each other harmless against any loss, expense or liability with
respect to any claims for commissions or brokerage fees arising
from or out
of
any breach of the foregoing representation and warranty.
Landlord
recognizes Taylor & Mathis of Florida, LLC and ICON Commercial
Interests,
L.L.C., as the sole brokers with whom Landlord has dealt in
this
transaction. ICON Commercial Interests, L.L.C shall be compensated
in
accordance with the terms and provisions of that certain
Co-Brokerage
Agreement dated March 22, 2006 attached hereto as Exhibit "B".
8. PARKING.
(a)
During the Lease Term, Tenant shall have the non-exclusive use
in
common with Landlord, other Building Tenants, and their respective
guests
and
invitees, of the non-reserved vehicle parking areas, driveways
and
pedestrian access to same located in the parking lot, subject to
the rules
and
regulations promulgated by Landlord from time to time. Landlord
shall
provide for the use of Tenant and its employees three and a half
spaces per
one
thousand rentable square feet leased (3.5/1000), unassigned
parking
spaces at all times (the "Spaces") in the parking lot, at no cost
to
Tenant.
(b)
Landlord shall have a right to designate the location of
Tenant's
parking and alter such designation upon reasonable notice to
Tenant.
Landlord shall also have the right to establish or modify the
methods used
to
control parking in the parking lot, including without limitation
the
installation of certain control devices or the hiring of parking
attendants
or a
managing agent.
(c)
Landlord shall have no liability whatsoever for any property damage
or
personal injury which might occur as a result of or in connection
with the
use
of the Spaces by Tenant, its employees, agents, invitees and
licensees,
and
Tenant hereby agrees to indemnify and hold Landlord harmless from
and
against any and all costs, claims, expenses, or causes of action
which
Landlord may incur in connection with or arising out of Tenant's
use of the
Spaces.
9. PARAGRAPH
39.13 OF THE LEASE REVISED (NOTICES).
Paragraph 39.13 of the Lease is amended to include overnight
delivery
service and to change the addresses set forth therein for Landlord
and
Tenant to the following:
As
to Landlord:
Metropolitan Life Insurance Company
c/o Taylor & Mathis of Florida, LLC
5775 Blue Lagoon Drive, Suite 102
Miami, Florida 33126
Attn: Property Manager
With
a Required Copy to:
Metropolitan Life Insurance Company
101 East
Kennedy Boulevard, Suite 2330
Tampa, Florida 33602
Attn: Regional Director
SIXTH AMENDMENT TO LEASE AGREEMENT FOR OFFICE FACILITIES
CompBenefits Dental & Vision
Page 4 of 11
<PAGE>
As
to Tenant:
CompBenefits Dental and Vision
5757 Blue Lagoon Drive Suite 400
Miami, Florida 33126
Attn: Office Manager
With
a Required Copy to
CompBenefits Dental and Vision
100 Mansell Court, East
Suite 400
Roswell, GA 30076
Attn: General Counsel
10. OPTION TO
RENEW.
A.
Landlord hereby grants Tenant the option to renew ("Renewal
Option") the
term
of this Lease for two (2) additional term of sixty (60) months
each
(the "Renewal Term"), commencing as of the date immediately
following
the
expiration of the Lease Term, such option to be subject to the
covenants and conditions hereinafter set forth in this
Paragraph.
B.
Tenant shall give Landlord written notice (the "Renewal Notice")
of
Tenant's election to exercise its Renewal Option not later than one
hundred
eighty (180) days prior to the expiration of the then current term
of this
Lease: provided that Tenant's failure to give the Renewal Notice by
said
date, whether due to Tenant's oversight or failure to cure any
existing
defaults or otherwise, shall render this Renewal Option null and
void.
Within twenty (20) days of receipt of such notice, Landlord shall
advise
Tenant of the new "Base Rental" for the Renewal Term, which Base
Rental
shall be calculated in accordance with Paragraph E(2) below. Tenant
shall
have
twenty (20) days from the date of receipt of Landlord's
determination
of
the Base Rental for the Renewal Term to elect to extend the term of
the
Lease. The failure of Tenant to respond within the twenty (20) day
period
shall be deemed the election of Tenant not to extend the term of
the Lease.
C.
Tenant shall not be permitted to exercise this Renewal Option at
any
time
during which Tenant is in default under this Lease, subject to
applicable notice and grace periods (if any). In the event Tenant
commits
an
event of Default following exercise of this Renewal Option but
before
commencement of the Renewal Term and fails to cure any default
under this
Lease prior to the commencement of any Renewal Term, subject to
applicable
notice and grace periods, such Renewal Term may be immediately
canceled by
Landlord or Landlord may elect to waive such default or Landlord
may
consider the Renewal Term to have been pa
