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EXHIBIT 10.5
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") is entered into as of the 27th day
of October, 2000, by and between HUMANA MEDICAL PLAN, INC., a Florida
corporation ("Sublessor") and XXXXX.XXX, INC., a Florida corporation
("Subtenant").
W I T N E S S E T H:
WHEREAS, Sublessor is the tenant under a lease agreement dated August 31,
1993 (the "Lease" or "Master Lease"), wherein Xxxxxx Xxxxxxx Property Company
("Original Master Landlord") leased to Physicians Corporation of America
certain premises described as approximately 59,792 square feet comprising the
entire building (the "Building"), having an address of 0000 Xxxx Xxxxxx Xxxxx,
Xxxxx, Xxxxxxx, a copy of which is set forth on EXHIBIT "A" attached hereto and
incorporated herein by reference for all purposes;
WHEREAS, Sublessor is the successor in interest to Physicians Corporation
of America by virtue of an Assignment and Assumption of Lease dated March 31,
2000;
WHEREAS, Original Master Landlord transferred all of its rights and
interests to 5835 Blue Lagoon Partners, Ltd, ("Master Landlord") and Master
Landlord assumed the obligations under the Master Lease pursuant to that
certain Assignment and Assumption of Tenant Lease dated December 28th, 1995; and
WHEREAS, Sublessor desires to sublet to Subtenant approximately 32,621
rentable square feet on the second (2nd) floor and fourth (4th) floor as well
as the kitchen on the first (1st) floor of the Building, together with all
rights, privileges, easements, interests and appurtenances relating thereto
(collectively, the "Subleased Premises"), as such Subleased Premises are
further described and outlined on EXHIBIT "B", attached hereto and incorporated
herein by reference for all purposes.
NOW, THEREFORE, for 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 acknowledge, and in further consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. RECITALS. Sublessor represents and warrants that the above recitals are
true and correct and are incorporated herein by reference.
2. SUBLEASE. Sublessor hereby rents and sublets the Subleased Premises to
Subtenant, to have and to hold the same unto Subtenant, its successors and
assigns from the date hereof for the Term of this Sublease, subject to the terms
and provisions hereof. Sublessor and Subtenant each agree that it will not, by
its act or omission to act, cause a default under the Lease. In order to afford
Subtenant the benefits of this Sublease and of those provisions of the Lease
which by their nature are intended to benefit the party in possession of the
Subleased Premises, and in order to protect Sublessor and Subtenant against a
default by the other party which might cause a default or event of default under
the Lease, the parties agree to the following:
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A. Provided Subtenant shall timely pay all rent when and as due under
this Sublease, Sublessor shall pay, when and as due, all Base Rent, Additional
Rent and other charges payable by Sublessor under the Lease; and
B. Except as otherwise expressly provided herein, Subtenant shall
perform all affirmative covenants and shall refrain from performing any act
which is prohibited by the negative covenants of the Lease, where the
obligation to perform or refrain from performing is by its nature imposed upon
the party in possession of the Subleased Premises.
Except as otherwise set forth herein, all provisions of the Lease which inure to
the benefit of the Master Landlord and are by their nature imposed upon the
party in possession of the Subleased Premises shall inure to the benefit of and
be enforceable by Sublessor herein as against Subtenant. Except as otherwise set
forth herein and provided no event of default has occurred and is continuing
hereunder, Sublessor shall enforce on behalf of Subtenant, or at Sublessor's
option or as required hereunder, shall permit Subtenant to enforce, as against
the Master Landlord, all obligations of Master Landlord under the Lease. All
terms having their initial letters capitalized and not defined herein shall have
the meanings set forth in the Lease. Sublessor represents to Subtenant that the
copy of said Lease and Amendments thereto, which is attached hereto as EXHIBIT
"A", is a true and complete copy thereof, as the same now exists; that the Lease
is in full force and effect, and has not been modified or canceled, and will not
be canceled pursuant to the Cancellation Option set forth in Section 7 of the
Lease; that Sublessor has no knowledge of any material default by Master
Landlord or Sublessor thereunder and knows of no existing circumstances which,
with the passage of time, or giving of notice, or both, would give rise to a
default under the Lease and/or allow Master Landlord or Sublessor to terminate
the Lease; and that Sublessor has received no notices of Sublessor's default
thereunder from Master Landlord. During the Term of this Sublease, Sublessor
shall not terminate or cause to be terminated the Master Lease or commit any act
or omission that results, directly or indirectly, in a termination of this
Sublease or otherwise affects any rights of Subtenant under this Sublease. By
way of example, but without limiting the foregoing, Sublessor shall not (i)
default in the performance of any monetary or non-monetary obligation, covenant
or agreement in the Master Lease, (ii) surrender or abandon the premises of
which the Subleased Premises forms a part, (iii) petition for relief under or
otherwise seek the benefit of any bankruptcy reorganization, arrangement or
insolvency law, (iv) modify the Master Lease, or (v) assign, sublet or otherwise
transfer the Master Lease or Sublessor's rights and interests in and to the
Subleased Premises. It is further understood and agreed that, as long as
Subtenant is in compliance with all material provisions of this Sublease,
Subtenant shall be entitled to the peaceful and quiet possession of the
Subleased Premises free from any interference or disturbance by Sublessor and
anyone claiming by, through or under them. Notwithstanding any provision
contained in the Lease to the contrary, the following shall apply with respect
to the Subleased Premises:
(a) Term: Provided Master Landlord has executed and delivered its consent
to this Sublease in form and substance reasonably satisfactory to
Subtenant, and Sublessor has delivered the Subleased Premises to
Subtenant as contemplated by this Sublease, the term (the "Term") of
this Sublease shall commence thirty (30) days after the Lease
Commencement Date (as defined in Section
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19) (the "Rent Commencement Date," which date may be subject to
adjustment as provided herein) and shall expire on October 31, 2003,
unless earlier terminated by operation of law, the terms of the Lease
or this Sublease. The Term of this Sublease shall not be extended by,
nor shall Subtenant be entitled to the benefit of, any extension or
renewal of the Lease pursuant to the terms thereof; provided, however,
if Sublessor exercises its renewal rights or otherwise obtains a new
lease for the Building, Subtenant shall have a right of first refusal
with respect to the sublease of the Subleased Premises for such
renewal period or the term of such new lease to be exercised in
accordance with, and subject to the terms and provisions of, this
Sublease.
(b) Rent: During the Term hereof, and subject to the rent abatement
provided below and elsewhere in this Sublease, Subtenant shall pay to
Sublessor full service annual rental for the Subleased Premises as
follows:
Months 1-12: $19.00 per rentable square foot
Months 13-24: $19.76 per rentable square foot
Months 25-37: $20.55 per rentable square foot
The above amounts, together with Florida sales tax, shall be paid in
equal monthly installments in advance on the first day of every
calendar month through the Term without notice, setoff or demand,
except as otherwise set forth herein.
Rental Abatement: Notwithstanding anything contained herein or in the
Master Lease to the contrary, the initial three (3) months of rent
shall be abated except for the costs of services which are in excess
of Building Standard such as overtime air conditioning which shall be
billed to Subtenant at the actual cost thereof.
Subtenant shall pay to Sublessor on the date of execution hereof a
payment of base rent in the amount of $51,759.44 representing the
installment of base rent and sales tax for the first month in which
such base rent is due (taking into consideration the three month
abatement described above as well as any other abatement to which
Subtenant is entitled pursuant to the terms hereof). Subtenant shall
pay all such amounts to Sublessor at Sublessor's address noted in
Paragraph 14 hereof.
(c) Parking: Subtenant shall be entitled to use 3.4 parking spaces (the
"Minimum Parking Spaces"), per 1,000 rentable square feet leased at no
cost to Subtenant. Sublessor represents, warrants and covenants that
Sublessor will not utilize for its own purposes, offer to any other
tenant of the Building nor do any other act that would
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result in Subtenant not having the use of the Minimum Parking Spaces
on a daily basis.
(d) Operating Costs: Commencing on January 1, 2002, in addition to the
rental shown above in section 1(b), Subtenant also agrees to pay its
"Proportionate Share" (defined as the ratio of the rentable square
footage of the Subleased Premises to the total rentable square footage
of the Building) of the increases, if any, of operating and
maintenance costs, and of ad valorem taxes as defined in Section 5 of
the Master Lease, above the Base Year of 2001. Sublessor shall give
Subtenant written notice of such amounts due pursuant to Section 5 of
the Master Lease. Notwithstanding anything contained herein to the
contrary, Subtenant may exercise any and all rights that Sublessor has
under the Master Lease to audit and inspect the Master Landlord's
books and records relating to such operating and maintenance costs and
to seek reimbursement from Sublessor or Master Landlord, as applicable
in the event an overpayment or discrepancy is discovered.
(e) Signage: Subtenant shall have the right, throughout the Term, to have
its name appear on the directory in the first floor lobby of the
Building, and to affix its signage in the elevator lobby on the wall
across from the elevator doors on the floor of the Subleased Premises.
Furthermore, Sublessor hereby transfers, grants and assigns to
Subtenant any and all other signage rights it may have under the
Master Lease; provided, however, Sublessor shall retain, or grant to
another tenant of the Building, the right to place signage on the
bottom half of the monument located on the street in front of the
Building as provided in the Master Lease. Such rights may be exercised
exclusively by Subtenant, subject only to any consent or approval
rights that the Master Landlord may have under the Master Lease.
Subtenant shall be responsible for all costs of installation,
maintenance, insurance and removal of said signage and agrees to
indemnify Sublessor from all claims, liability and damages associated
with said signage.
(f) Enforcement of Master Lease: Sublessor covenants and agrees to enforce
the Master Lease against Master Landlord at Subtenant's request and,
if, in the good faith determination of Sublessor, the cause of the
enforcement action is of common interest to Subtenant and Sublessor,
Subtenant will pay its pro rata share of the expenses of enforcement
incurred by Sublessor. Should Sublessor fail to enforce the Master
Lease and such failure materially impairs Subtenant's ability to
conduct its business at the Subleased Premises or increases
Subtenant's obligations hereunder, Subtenant shall give notice to
Sublessor of such failure. If Sublessor does not
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enforce the Master Lease against Master Landlord within ten (10) days
of its receipt of notice from Subtenant (except in the event of an
emergency, in which case Subtenant may immediately proceed to enforce
the Master Lease against Master Landlord on its own behalf), Subtenant
shall be entitled to commence such enforcement on its own behalf and
seek reimbursement from Sublessor for its pro rata share (determined
in proportion to the portions of the Building benefited thereby) of
any expenses incurred by Subtenant in connection therewith.
3. POSSESSION OF SUBLEASED PREMISES. Subtenant acknowledges that Sublessor
will deliver the Subleased Premises to Subtenant in a broom-cleaned condition
upon the Lease Commencement Date.
4. CONDITION OF SUBLEASED PREMISES. Subject to the terms of this Sublease
and the Master Lease, Subtenant hereby accepts the Subleased Premises "as is"
and in its current condition as of the date hereof. As an inducement to
Subtenant to accept the Subleased Premises as described above, Sublessor hereby
represents and warrants that, to the best of Sublessor's knowledge: (i) the
Subleased Premises, Building and all equipment, machinery and facilities serving
the same, including, without limitation, HVAC, plumbing, electrical, water,
telephone, fire safety and other building systems (the "Building Systems")
comply with all laws, rules, regulations and requirements of all applicable
governmental authorities having jurisdiction over the same, including, without
limitation, all environmental laws, the Americans With Disabilities Act and any
and all amendments thereof and thereto (collectively, the "Applicable Laws"),
(ii) the Subleased Premises, Building and Building Systems are in good working
condition and there are no defects in the construction of the Subleased
Premises, Building or Building Systems and (iii) all necessary certificates of
occupancy and similar governmental approvals have been obtained for the Building
and Subleased Premises and permit, and will not be changed to prohibit, the use
of the Subleased Premises for general office use and (iv) no zoning rule,
regulation or law exists nor is the Building subject to any restrictive covenant
or similar encumbrance that would prevent Subtenant's intended use of the
Subleased Premises for general office use. Sublessor agrees to indemnify, defend
and hold harmless Subtenant from any costs, expenses or claims in connection
with a breach of the foregoing representations.
5. RIGHT OF ENTRY. Upon not less than twenty-four (24) hours advance
written notice to Subtenant, Sublessor and its agents, employees, and
contractors may enter the Subleased Premises at such reasonable times during
business hours as Sublessor deems reasonably necessary to inspect and examine
same, and to make any repairs needed. In the event of an emergency, or if
otherwise necessary to prevent injury to persons or damage to property, such
entry to the Subleased Premises may be made without such advance written notice.
In exercising its right of entry, Sublessor shall use its best efforts to do so
in such a manner and at such time as not to interfere with the conduct of
Subtenant's business, and if Sublessor shall so interfere with Subtenant's
operations so as to render it unreasonable for Subtenant to do business in the
Subleased Premises, then Subtenant's obligation to pay rent and all other
charges hereunder shall thereafter xxxxx until Subtenant is able to resume its
business in the Subleased Premises. In the case of any discrepancy between the
Lease and this Sublease on this matter, the Sublease will prevail.
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6. USE. Subtenant shall use the Subleased Premises only for general office
use purposes. Subtenant shall not do or suffer anything to be done upon the
Subleased Premises which shall cause material damage to the Subleased Premises,
or knowingly violate any Applicable Law in any material respect and, subject to
the terms and provisions hereof, Subtenant shall hold Sublessor harmless against
any and all costs, expenses, losses or damages incurred, suffered, or imposed on
Sublessor as a result of any use of the Subleased Premises for other than the
purposes permitted hereby and in the Master Lease. Notwithstanding anything
contained herein or in the Master Lease to the contrary, in no event shall
Subtenant be in any way responsible for or have any obligation to indemnify
Sublessor in connection with violations of Applicable Laws which existed on the
Lease Commencement Date or require structural repairs, alterations or
improvements, unless the same directly result from the use of the Subleased
Premises by Subtenant other than for purposes permitted by this Sublease and the
Master Lease. During the Term of this Sublease and any extension thereof,
Sublessor covenants and agrees not to permit occupancy of all or a portion of
the Building by an entity who is engaged in the business of providing business
to business e-commerce solutions to the marine industry.
7. MAINTENANCE BY SUBTENANT. Subtenant shall maintain and keep the
Subleased Premises in good repair and in a clean and orderly condition. Upon
expiration of the Term hereof, Subtenant shall deliver the Subleased Premises
to Sublessor, broom clean and in the same condition as at the Rent Commencement
Date, ordinary wear and tear and casualty damage excepted; provided, however,
that Subtenant need not remove any leasehold improvements or alterations,
structural or otherwise, which were installed by Subtenant and approved by
Sublessor for installation without notice that said improvements may be subject
to removal. Notwithstanding the foregoing, Subtenant shall have no obligation
to make repairs, replacements or improvements of any kind or nature whatsoever
to the extent that the same are of a nature required to be covered or actually
covered by insurance.
8. MAINTENANCE BY SUBLESSOR. Notwithstanding anything contained herein or
in the Master Lease to the contrary, and in addition to the obligations of
Sublessor or Master Landlord herein and therein, if any, Sublessor shall make
all repairs to the Subleased Premises occasioned by any negligent or willful
act or omission of Sublessor, its agents, employees, invitees, successor and
assigns (the "Sublessor Parties"). All repairs, improvements and alterations
required to be made by Sublessor under this Sublease with respect to the
Subleased Premises shall be timely made and done in such a manner as to cause
as little interruption to the use and occupancy of the Subleased Premises by
Subtenant, its employees, agents, invitees, licensees, customers, clients and
guests as practicable. All facilities, materials and work to be furnished,
installed and performed by Sublessor shall be completed in a good and
workmanlike manner, in accordance with all Applicable Laws and permits issued
in connection therewith and shall be at least of a character and quality
consistent with the work in similar buildings in the vicinity of the Building.
If Sublessor fails to make repairs for which Sublessor is obligated hereunder,
and such failure materially impairs Subtenant's ability to conduct its business
at the Subleased Premises, all rent shall xxxxx until Sublessor accomplishes
such repairs or Subtenant may perform such repairs and deduct the cost thereof
from the rent.
9. TAXES. Subtenant shall pay as additional rent all taxes of any kind
whatsoever becoming due and assessed against Subtenant with respect to
Subtenant's personal property
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located in or about the Subleased Premises. Notwithstanding anything contained
herein or in the Master Lease to the contrary, Subtenant shall not be
responsible for any income, profit, capital, franchise, excise, corporate,
estate, levy, gift, inheritance or transfer tax of any kind relating to or
payable by Sublessor or Master Landlord or any late payment or fee imposed in
connection therewith, whether as base rent, additional rent or otherwise.
10. UTILITIES AND JANITORIAL SERVICES. If, at Subtenant's request, HVAC
services are provided to Subtenant during periods other than as specified in
the Lease and Sublessor is charged by Master Landlord, Subtenant shall pay
Sublessor as additional rent the cost of such services provided based upon
Master Landlord's costs in effect from time to time for all such services which
are being furnished. Notwithstanding anything contained herein or in the Master
Lease to the contrary, Sublessor shall, or shall cause Master Landlord to,
divide any and all bills for additional services in an equitable fashion
between all occupants of the Building requesting such services. Sublessor shall
not be released from liability to Subtenant for failure or inability to furnish
utilities to the extent that the same is a result of the gross negligence or
willful misconduct of Sublessor or the Sublessor Parties. If there occurs an
interruption of services or Building Systems which materially impairs
Subtenant's ability to conduct its business at the Subleased Premises and is
not cured within ten (10) days of Sublessor's receipt of notice from Subtenant,
all rent shall xxxxx until such interruption is corrected or, subject to the
terms and provisions of the Master Lease, Subtenant may correct such
interruption and deduct the cost thereof from the rent.
11. INSURANCE. Subtenant will insure the Subleased Premises to the same
extent that, and will procure and maintain such other insurance in connection
therewith as, Sublessor is required to maintain under the Lease with respect to
the Subleased Premises. Subtenant shall provide Sublessor with a copy of said
insurance policy. Subtenant's policy shall be endorsed to name Sublessor and
Master Landlord as additional insured. Any proceeds received under such
insurance shall be applied as provided in the Lease, except that Subtenant
shall be considered in the place of Sublessor as to the Subleased Premises. In
addition, Sublessor shall procure and maintain such insurance as Sublessor is
required to maintain under the Lease with respect to the Building. Sublessor
shall provide Subtenant with a copy of said insurance policy. Sublessor's
policy shall be endorsed to name Subtenant as additional insured. Sublessor
shall be deemed to be fully insured and shall look to its insurance for any
damages, claims or losses not covered or coverable by the insurance required to
be obtained by Subtenant hereunder. Sublessor hereby waives and releases all
rights of subrogation under Sublessor's insurance policies and Sublessor will
cause each such insurance policy to be properly endorsed to evidence such
waiver and release of subrogation in favor of Subtenant.
12. ASSIGNMENT AND SUBLETTING. Subtenant shall not assign or sublease all
or a portion of the Subleased Premises to any other party without obtaining the
prior written consent of Sublessor, which consent shall not be unreasonably
withheld, conditioned or delayed by Sublessor. Any sublease or assignment by
Subtenant shall be subject to obtaining any required consent of the Master
Landlord under the Master Lease. In the event that Subtenant attempts or
purports to assign or sublease all or a part of the Subleased Premises to any
other party in violation of the terms of this paragraph, such action shall
constitute a default under the terms of this Sublease, entitling Sublessor to
exercise all remedies provided at law, in equity or under the Lease.
Notwithstanding any assignment or subletting, Subtenant shall not be relieved
of its
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obligations hereunder and a consent to one assignment or subletting shall not
constitute a further waiver of the provisions of this Section. Notwithstanding
anything herein to the contrary, subject in all cases to the Master Lease,
Subtenant shall have the right to assign this Sublease or sublet all or any
part of the Subleased Premises, without the consent of Sublessor, to (a) any
subsidiary or affiliate of Subtenant, (b) any entity resulting from a merger or
consolidation with Subtenant, or (c) any entity succeeding to all or
substantially all of the business and assets of Subtenant, all without
relieving Subtenant of liability under this Sublease.
13. ALTERATIONS. Subtenant shall not make any material alterations,
additions or improvements to the Subleased Premises without the prior written
consent of Sublessor, which consent shall not be unreasonably withheld,
conditioned or delayed. All alterations now or hereafter proposed to be made by
Subtenant shall be made in accordance with and shall be subject to the
provisions of the Lease. Subject to the consent of Master Landlord, (i)
carpeting, painting and the installation of computer equipment, telephone
lines, supplemental air conditioning units and such other items as
substantially set forth on EXHIBIT "C" hereto (the "Approved Alterations") and
(ii) Minor Alterations (as hereinafter defined) are expressly permitted herein
and shall not require any further consent of Sublessor. Notwithstanding
anything contained herein or in the Master Lease to the contrary, the Approved
Alterations (to the extent the same may be removed without damage to the
Subleased Premises) and Trade Fixtures (as hereinafter defined) shall remain
the property of Subtenant. For purposes hereof, (i) "Minor Alterations" shall
mean non-structural alterations or improvements in or to the Subleased Premises
that do not (a) require a permit, (b) materially and adversely affect the
structure of the Building or Building Systems nor (c) cost more than Fifty
Thousand Dollars ($50,000.00) and (ii) "Trade Fixtures" shall mean articles
placed in or attached to the Subleased Premises to facilitate the trade or
business of Subtenant or promote convenience and efficiency in conducting
Subtenant's business which may be removed without damage to the Subleased
Premises.
14. DEFAULT. The occurrence of any of the following events as a result of
Subtenant's acts or omissions shall constitute an event of default entitling
Sublessor to exercise any rights provided by law:
(a) failure to pay any installment of rent or any other payment due
hereunder as and when the same shall become due and payable; and
(b) material breach of any term, condition or covenant of this
Sublease.
provided, however, that with respect to any default described in subparagraph
(a) above, Sublessor shall not exercise any of its remedies for default unless
and until Subtenant shall fail to cure such default within ten (10) days after
receipt of written notice of default from Sublessor, and with respect to any
default described in subparagraph (b) above, Sublessor shall not exercise any of
its remedies for default unless and until Subtenant shall fail to cure any
default within thirty (30) days of receipt of written notice of default from
Sublessor (or such shorter period as may be provided in the Lease), provided
that, if Subtenant has, within said thirty (30) day period or such shorter
period as may be provided in the Lease, commenced and continued curative action
which requires a longer period, Subtenant shall be entitled to such longer
period as shall
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be required to cure such non-monetary default with diligence. Notwithstanding
the foregoing, in no event shall Sublessor be required to give notice of a
monetary default more than three (3) times during any twelve (12) month period.
Furthermore, no failure by Sublessor to send notice of default shall be deemed
or construed to operate as a waiver of such default or in any way relieve or
release Subtenant of any of its obligations under this Sublease.
15. SUBLESSOR'S RIGHT TO CURE DEFAULTS OF SUBTENANT. If Subtenant shall
fail to fulfill any of its obligations under this Sublease, after notice and
opportunity to cure as provided above, Sublessor may, but shall not be
obligated to, fulfill any obligations of Subtenant hereunder and if Sublessor
shall incur any reasonable costs in doing so, such reasonable costs shall be
additional rent due from Subtenant within ten (10) days of the written demand
therefore, together with interest at twelve percent (12%), but not to exceed
the rate, if any, stated in the Lease, from the date expended until the date
repaid.
16. INDEMNITY. Notwithstanding any provision of the Lease to the contrary,
and except as otherwise set forth herein, Sublessor shall not be liable to
Subtenant, or any of its agents, employees, servants, or invitees, and Subtenant
shall not be liable to Sublessor, or any of its agents, employees, servants, or
invitees for any damage to persons or property due to the condition, design, or
any defect in the building or its mechanical systems that may exists or
subsequently occur. Except as otherwise set forth herein or to the extent
attributable to the negligence or willful misconduct of Master Landlord,
Sublessor, or its or their agents, employees or contractors, Subtenant, with
respect to itself or its agents, employees, servants, and invitees, expressly
assumes all risk and damages to persons and property, either proximate or
remote, by reason of the present or further condition of the Subleased Premises.
Sublessor and Subtenant agree that they will indemnify and hold each other
harmless from and against all suits, claims and actions of every kind by reason
of any breach, violation, or non-performance of any term or condition on the
part of the other party under this Sublease. Additionally, Subtenant agrees to
indemnify and hold Sublessor harmless from all claims, actions, damages,
liabilities and expenses asserted against the Sublessor on account of injuries
to person or damage to property to the extent that any such damage or injury may
be caused solely (i.e., without negligence or willful misconduct on the part of
Master Landlord, Sublessor, or its or their agents, employees or contractors) by
any negligent act or omission of Subtenant or any of its agents, servants,
employees, contractors, patrons, or invitees (while such invitees are on the
Subleased Premises) or any other person entering upon the Subleased Premises
under or with the expressed or implied invitation of Subtenant, or if any such
injury or damage made any other way arise from or out of the occupancy or use
by Subtenant, its agents, employees and invitees of the Subleased Premises other
than as permitted in this Sublease. Notwithstanding anything contained herein or
in the Master Lease to the contrary, Subtenant's indemnification obligation
hereunder shall be limited to loss, damage or injury which is not required to be
covered or actually covered by the insurance required by the terms of this
Sublease or the Master Lease. In addition, Sublessor shall indemnify and hold
harmless Tenant from and against all claims, actions, damages, liability and
expense (including reasonable fees for attorneys, investigators and experts) in
connection with loss of life, personal injury or damage resulting from an act or
omission of Sublessor or a Sublessor Party and/or which is in excess of policy
limits of any insurance which Sublessor or Subtenant is obligated to obtain
pursuant to the terms of this Sublease or the Master Lease. Moreover,
notwithstanding anything contained herein or in the Master Lease to the
contrary,
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Subtenant and Sublessor shall not be responsible for any consequential or
punitive damages for any breach of the terms and provisions of this Sublease or
the Master Lease.
17. NOTICES.
(a) Any notices required or permitted to be delivered hereunder shall
be in writing and shall be deemed to have been received upon the
first to occur of: actual receipt; or three (3) days after
deposit in an official depository of the United States postal
service, postage prepaid, registered or certified mail, return
receipt requested, addressed to the parties as follows:
If to Sublessor: Mr. Xxxxxxxx Xxxxx
Director of Real Estate
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With Copy To: Xxxxxx Xxxxx
Humana Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Subtenant: Xxxxx.xxx.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
With Copy To: White & Case LLP
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Either party may change the address for notices by notice in
writing given to the other party in the manner hereinabove
described.
(b) Each party hereto shall promptly give the other party a copy
of each notice received from, or sent to, the Master Landlord and
relating to the Subleased Premises.
18. REAL ESTATE BROKER. Except for CRESA Partners LLC. and Xxxxxxx Xxxxxxx
Real Estate Corporation (collectively, the "Brokers") whose commissions shall be
paid pursuant to a separate agreement with Sublessor, the parties represent and
warrant to each other that no brokers or agents have been involved on behalf of
such party in connection with the consummation of the transactions contemplated
by this Sublease. Sublessor and Subtenant agree to indemnify, defend, and hold
harmless one another from any claims in connection with a breach of the
foregoing representation. Moreover, Sublessor agrees to pay the commissions to
Brokers pursuant to such
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separate agreement, indemnify, defend, and hold harmless Subtenant from any
claims in connection with same.
19. REQUIRED CONSENT AGREEMENTS. This Sublease shall not be effective
until Sublessor obtains the Consent Agreements (as hereinafter defined) from
Master Landlord and Master Landlord's mortgagee(s) (the date upon which such
Consent Agreements are obtained, the "Lease Commencement Date"). Sublessor
shall immediately begin, and diligently proceed, to obtain such Consent
Agreements. In this regard, Subtenant agrees to execute and deliver to
Sublessor within three (3) days of notice by Sublessor such documents and
information as are reasonably required to obtain such Consent Agreements.
Should Sublessor fail to obtain such Consent Agreements within ten (10) days of
the execution of this Sublease (the "Approval Date"), Subtenant shall have the
following options: (i) extend the Approval Date or (ii) terminate this
Sublease, in which case all obligations of the parties hereunder shall cease
and be of no further force and effect (except those which expressly survive
termination of this Sublease, including, without limitation, Sublessor's
obligation to return the Security Deposit). Within five (5) days of the
execution of this Sublease, Sublessor will cause to be prepared plans and
specifications for its intended improvement of the Subleased Premises,
including, without limitation, the creation of a server room and related
facilities (the "Plans") and will present the same to Sublessor and Master
Landlord for approval. If Subtenant does not receive Sublessor's and Master
Landlord's written approval of such Plans within five (5) days of delivering
the same to Sublessor and Master Landlord, Subtenant may terminate this
Sublease, in which case all obligations of the parties hereunder shall cease
and be of no further force and effect (except those which expressly survive
termination of this Sublease, including, without limitation, Sublessor's
obligation to return the Security Deposit).
20. SECURITY DEPOSIT. Subtenant has deposited with White & Case LLP or
Lawyers Title Insurance Company ("Escrow Agent") the sum of $150,000.00 (the
"Security Deposit") which shall be held in an interest-bearing escrow account
(the "Escrow Account") as security for the faithful performance by Subtenant of
all of the terms and covenants of this Sublease by Subtenant to be observed and
performed. The Escrow Account shall be maintained by Escrow Agent pursuant to
an escrow agreement executed by the parties (the "Escrow Agreement") and all
costs relating to the establishment and maintenance of such Escrow Account
shall be borne by Subtenant. If any of the rents herein reserved or any other
sum payable by Subtenant hereunder shall be overdue or unpaid, or should
Sublessor make any expenditure on behalf of Subtenant, or if Subtenant shall
fail to perform any of the terms or covenants of this Sublease and Subtenant
has failed to pay or cure same within the applicable cure periods set forth
herein, then Sublessor at its option and without prejudice to any other remedy
which Sublessor may have on account thereof, may, subject to the terms and
provisions hereof and the Escrow Agreement, receive a disbursement from the
Escrow Agent of the entire Security Deposit or so much thereof as may be
necessary to compensate Sublessor toward the payment of any rent or other sum
due hereunder or toward any loss or damage sustained by Sublessor or toward any
expenditure made by Sublessor due to such breach on the part of Subtenant; and
Subtenant shall forthwith upon demand restore the Security Deposit to the
original sum deposited. Should Subtenant comply with all of the terms and
covenants of this Sublease and promptly pay all of the rentals and all other
sums payable by Subtenant or Sublessor as they become due, the Escrow Account
shall be closed and the Security Deposit shall be returned in full to Subtenant
at the end of the term. Subtenant further covenants that it will not assign or
encumber the Security Deposit and that neither
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Sublessor nor its assigns shall be bound by any such assignments or
encumbrance. Sublessor covenants to give Subtenant written notice of any claim
Sublessor may have to all or any portion of the Security Deposit within ten
(10) days after the expiration or termination of this Sublease and, unless any
such claim is contested by Subtenant (in which case such Security Deposit or
remaining portion thereof, if applicable, will be returned promptly after
resolution of such claim), Escrow Agent will close the Escrow Account and
return the Security Deposit or remaining portion thereof, if applicable, to
Subtenant within thirty (30) days after the expiration or termination of this
Sublease. Notwithstanding anything contained herein to the contrary, should
Subtenant be required by the terms of its Consent Agreement with Master
Landlord to cure a default with respect to the Subleased Premises caused by or
for which Sublessor is responsible under this Sublease or the Master Lease,
then Subtenant may, at its option and without prejudice to any other remedy
which Subtenant may have on account thereof, receive a disbursement from the
Escrow Agent of the entire Security Deposit or so much thereof as may be
necessary to reimburse Subtenant for the cost of such cure.
21. FIRST RIGHT OF REFUSAL. Subtenant shall have the First Right of Refusal
to lease any space that becomes available for lease in the Building. Upon
receipt of an acceptable offer to lease available space (the "Acceptable
Offer"), Sublessor shall provide Subtenant with notice that it has received such
Acceptable Offer. In order to exercise this right, Subtenant must respond, in
writing, within fifteen (15) business days, confirming that it will lease said
space. Upon exercise, the parties will immediately execute a Sublease Amendment
incorporating the expanded space into the original Sublease at a rental rate
equal to the lesser of (i) the rate set forth in the Acceptable Offer or (ii)
the same rental rates as contained in this Sublease. In the event Subtenant
elects to not exercise the above rights with respect to the Acceptable Offer,
then Subtenant waives its First Right of Refusal with respect to said Acceptable
Offer for the ensuing ninety (90) days. However, after the ninety (90) days or
with respect to a different offer or a revision of the Acceptable Offer,
Subtenant's expansion rights pursuant to this section of the Sublease shall be
reinstated. Notwithstanding anything contained herein to the contrary,
Sublessor's negotiations with American Classic Voyagers ("ACV") for the western
half of the first floor (as more particularly described on EXHIBIT "D" hereto,
the "Exclusion Premises") are excluded from Subtenant's right of first refusal
for a period of sixty (60) days after the Lease Commencement Date. If a sublease
is not signed with ACV during said sixty (60) day period, any and all rights
Subtenant may have with respect to the Exclusion Premises will be reinstated.
22. NON-APPLICABILITY OF LEASE PROVISIONS. The following paragraphs of the
Lease do not apply herein: 2, 3, 4, 6, 7 and 8. All other provisions of the
Master Lease relating to the use and occupancy of the Subleased Premises apply
to the extent that they are not contradicted by the terms hereof.
23. SUBORDINATION. Notwithstanding anything contained herein or in the
Master Lease to the contrary, Sublessor hereby subordinates any statutory lien
rights it may have to any institutional financing whereby Subtenant has pledged
its equipment, fixtures, furniture, improvements, goods and other personal
property (the "Personal Property") and, with respect to any new item of
equipment or Personal Property, Sublessor shall subordinate said rights to any
purchase money financing. Sublessor agrees to execute reasonable documentation
necessary to evidence the foregoing. Also, notwithstanding anything contained
herein or in the Master Lease to the contrary, Subtenant hereby requests the
Sublessor shall use its best efforts to promptly
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obtain a Consent, Non-Disturbance and Attornment Agreement in favor of Subtenant
in substantially the same form as attached hereto from Master Landlord and all
existing mortgagees or other parties to whom Subtenant is subordinate hereunder
(collectively, the "Consent Agreements"). Moreover, Subtenant agrees to
subordinate and attorn only to those future first mortgagees from whom Subtenant
has received a similar Consent, Non-Disturbance and Attornment Agreement.
Sublessor represents that, as of the Lease Commencement Date, it does not have a
mortgagee with respect to its leasehold interest in the Building.
24. CASUALTY AND CONDEMNATION. Notwithstanding anything contained in this
Sublease or the Master Lease to the contrary, if there is a casualty or
condemnation that occurs in the final year of the Term of this Sublease,
Subtenant may terminate this Sublease and all obligations of the parties hereto
shall cease and be of no further force and effect (except those which expressly
survive termination of this Sublease, including, without limitation,
Sublessor's obligation to return the Security Deposit). If the casualty is the
fault of Sublessor or any Sublessor Party, Sublessor shall restore any and all
Approved Alterations, Personal Property and Trade Fixtures damaged thereby. If
restoration of the Subleased Premises and Building is not commenced within
thirty (30) days and completed within ninety (90) days after the casualty or
condemnation, Subtenant may terminate this Sublease by giving Sublessor written
notice, whereupon this Sublease shall be null and void (except those which
expressly survive termination of this Sublease, including, without limitation,
Sublessor's obligation to return the Security Deposit).
25. PREMISES; COMMON AREAS. Sublessor covenants and agrees to exercise any
rights it may have under this Sublease or the Master Lease to enter, control,
repair, maintain, manage, alter, improve and/or operate the Subleased Premises,
Building and Building Systems, including, without limitation, the common areas
and parking facilities, in such a manner as to cause as little interruption to
the use and occupancy of the Building and the Subleased Premises by Subtenant,
its employees, agents, invitees, licensees, customers, clients and guests as
practicable. If Sublessor exercise such rights in a manner that decreases the
usable or accessible space in the Subleased Premises, Subtenant shall be
entitled to a proportionate adjustment in the rent, including, without
limitation, Tenant's share of operating expenses and maintenance
26. AUTHORITY. Sublessor represents, warrants and covenants that is has
legal authority to operate and do business in the State of Florida, to execute
this Sublease and to perform its duties and obligations hereunder and under the
Master Lease. Sublessor further represents, warrants and covenants that the
person or persons signing this Sublease for and on behalf of Sublessor have
authority to sign the same and by execution hereof obligates Sublessor to the
provisions hereof and thereof. Subtenant represents, warrants and covenants
that it has legal authority to operate and do business in the State of Florida,
to execute this Sublease and to perform its duties and obligations hereunder
and under the Master Lease. Subtenant further represents, warrants and
covenants that the person or persons signing this Sublease for and on behalf of
Subtenant have authority to sign the same and by execution hereof obligates
Sublessor to the provisions hereof and thereof.
27. RULES AND REGULATIONS. Sublessor covenants and agrees that it will not
exercise any rights it may have under this Sublease or the Master Lease to
enforce the rules and regulations relating to the Building and Subleased
Premises more stringently against Subtenant
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than any other occupant of the Building. Notwithstanding anything contained in
this Sublease or the Master Lease to the contrary, Sublessor will not enforce
any rules and regulations which increase Subtenant's obligations or materially
reduce Subtenant's rights under this Sublease or the Master Lease or which
prevent Subtenant from using the Subleased Premises for purposes permitted by
this Sublease or the Master Lease. Sublessor shall immediately give Subtenant
notice of any new rules and regulations promulgated by Master Landlord after
the date hereof.
28. KNOWLEDGE. For purposes of this Sublease, with respect to Sublessor,
"knowledge" means the actual knowledge, after conducting a commercially
reasonable investigation, of Xxxxxxxx X. Xxxxx, Director of Real Estate and
Xxxxxx Xxx, Building Manager.
29. MISCELLANEOUS. Sublessor and Subtenant waive their respective rights
to trial by jury in an action or proceeding relating to this Sublease, the
Master Lease or the Subleased Premises. This Sublease shall not be amended or
modified unless in writing duly executed by the parties hereto. This Sublease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This Sublease may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same document. This Sublease shall be
governed by and construed pursuant to the laws of the State of Florida. Subject
to the approval of Master Landlord, Subtenant may record a Memorandum of this
Sublease. This Sublease contains the entire and only agreement between the
parties concerning the subject matter hereof and supersedes and cancels any
preexisting agreements and understandings between the parties relating thereto.
30. CONSTRUCTION. Nothing contained in this Sublease shall be construed as
requiring Master Landlord to perform any duties or provide any services with
respect to the Subleased Premises in excess of that set forth in the Master
Lease.
EXECUTED as of the day and year first above written.
WITNESSED BY: SUBLESSOR:
HUMANA MEDICAL PLAN, INC., a Florida
corporation
By: /s/ XXXXXXX XXXXXX By: /s/ XXXXXXXX X. XXXXX
------------------------ ----------------------------------
NAME: XXXXXXX XXXXXX NAME: XXXXXXXX X. XXXXX
TITLE: DIRECTOR OF REAL ESTATE
11/1/2000
By: /s/ XXXXXX X. XXX
-------------------------
NAME: XXXXXX X. XXX
WITNESSED BY: SUBTENANT:
XXXXX.XXX, INC., a Florida corporation
By: /s/ XXXXXXX X. XXXXXX By: /s/ KENBIAN NG
------------------------ ----------------------------------
NAME: XXXXXXX X. XXXXXX NAME: KENBIAN NG
TITLE: CFO
By: /s/ XXXXXXX X. XXXXX
-------------------------
NAME: XXXXXXX X. XXXXX
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EXHIBIT "A"
Attach Copy of Master Lease
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EXHIBIT "B"
Description of Subleased Premises
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EXHIBIT "B"
2ND FLOOR PLAN
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EXHIBIT "B"
4TH FLOOR - AS BUILT FLOOR PLAN
RENOVATION TO OFFICES:
FPA MEDICAL MANAGEMENT
0000 XXXX XXXXXX XXXXX
XXXXX, XXXXXXX
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EXHIBIT "B"
1ST FLOOR - AS BUILT FLOOR PLAN
RENOVATION TO OFFICES:
FPA MEDICAL MANAGEMENT
0000 XXXX XXXXXX XXXXX
XXXXX, XXXXXXX
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EXHIBIT "C"
ALTERATIONS
1. Installation of computer and telephone lines.
2. Prepare an office as a server facility.
a. Supplemental air conditioner.
b. Raise ceiling.
c. Install appropriate electrical supply.
3. Removal or installation of partition.
4. Install electrical wiring, switches, receptacles and outlets.
5. Install doors, frames and hardware.
6. HVAC rerouting.
7. Installation of dedicated circuits.
8. Installation of telephone system and related equipment.
9. Installation of electronic door security system.
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EXHIBIT "D"
EXCLUSION PREMISES
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EXHIBIT "D"
EXCLUSION PREMISES
1ST FLOOR - AS BUILT FLOOR PLAN
RENOVATION TO OFFICES:
FPA MEDICAL MANAGEMENT
0000 XXXX XXXXXX XXXXX
XXXXX, XXXXXXX
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