EXHIBIT 10.1
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered into as of the 4th
day of August 2004 (the "Effective Date") by and between CDB, LLC, a Florida
Limited Liability Company (the "Landlord"), and ORTHODONTIC CENTERS OF FLORIDA,
INC., a Delaware corporation (the "Tenant").
1. PREMISES. In consideration of the rents, mutual covenants and
agreements set forth herein, Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord those certain premises located in that certain building
located at 0000 Xxxx Xxxxx Xxxxxx. Xxxxx Xxxx. Xxxxxxx 00000 (herein called the
"Building"), which premises are 1,740 square feet (measured in accordance with
Building Owners and Managers Association International ("BOMA") American
National Standard ANSI 265.1 - 1996, for rentable area) as more particularly
shown on the floor plan attached hereto as EXHIBIT "A" (the "Leased Space"),
together with the non-exclusive right in common with the other tenants of the
Building, to use and occupy the "Common Areas" (as hereinafter defined) on and
subject to the terms and conditions hereinafter set forth (the Leased Space and
such rights to the Common Areas are hereinafter referred to as the "Premises").
As used herein the term "Common Areas" shall mean and include all entrances,
lobbies, corridors, stairways, stairwells, public restrooms, elevators, parking
areas, loading and unloading areas, trash areas, roadways, walkways, sidewalks,
driveways, and landscaped areas, located in, on, adjacent to or under the
Building. The Building and the Common Areas are collectively referred to herein
as the "Project."
2. TERM. The term of this Lease (the "Lease Term") shall commence on
August 15, 2004 (the "Lease Term Commencement Date") and shall continue for a
term of five (5) years plus any additional days as may be required for the Lease
Term to expire on the last day of a month.
3. RENT. Tenant shall pay to Landlord Rent in monthly installments as
follows:
PERIOD MONTHLY RENT
Year 1 $2,030.00
Year 2 $2,091.00
Year 3 $2,154.00
Year 4 $2,218.00
Year 5 $2,285.00
Rent shall be paid in advance in equal monthly installments on the first
day of each and every calendar month during the Lease Term; provided, however,
that in the event the Lease Term commences on a day other than the first day of
a calendar month, then upon the Lease Term Commencement Date Tenant shall pay to
Landlord a pro rata portion of
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Rent for that portion of the calendar month remaining from the Lease Term
Commencement Date to the first day of the next following calendar month. Each
twelve (12) month period commencing on the Lease Term Commencement Date or any
anniversary thereof is referred to herein as a "Lease Year".
4. OPTION TO RENEW.
(a) Following the initial Lease Term, Tenant shall have an option to
extend the Lease Term for two (2) consecutive additional terms of three (3)
years each (each such optional extended term is hereinafter called an "Extended
Lease Term"). Each Extended Lease Term shall be on and subject to all of the
same terms, covenants and conditions as herein contained except for the payment
of Rent as provided below. Each option for an Extended Lease Term shall be
exercised only by written notice from Tenant to Landlord given not less than one
hundred eighty (180) days prior to the expiration of the term then in effect.
The phrases "Lease Term," "term of this Lease," "Term" and similar phrases, as
used in this Lease shall mean the initial Lease Term and any exercised Extended
Lease Term, as appropriate. During any Extended Lease Term, Tenant shall pay
Rent calculated based on the prevailing Market Rental Rate (as hereinafter
defined) at the time the Renewal Term commences. Whenever used in this Lease,
the term "Market Rental Rate" shall mean the annual gross rental rate per square
foot of rentable area then being charged in similar buildings located in the
same submarket and city as the Building for space comparable to the Leased Space
in its condition prior to the date of this Lease (excluding from consideration
any alterations or improvements to the Leased Space made during the prior Term
by either Tenant or Landlord). Landlord and Tenant will negotiate in good faith
to determine the Market Rental Rate within Thirty (30) days after Tenant's
notice of tentative intent to exercise the renewal option.
(b) If Landlord and Tenant are unable to agree upon the Market Rental Rate
within such (30) thirty day period then Landlord and Tenant, at their own
respective cost, shall each appoint a reputable and locally licensed commercial
real estate appraiser with a minimum of five (5) years of local experience to
determine their opinion of Market Rental Rate. No later than one hundred twenty
(120) days prior to the expiration of the Lease, each appraiser will submit to
both Landlord and Tenant their determinations of Market Rental Rate. Upon such
submittals, the Market Rental Rate shall be the average of the finding of the
two appraisers. Landlord shall immediately submit to Tenant an amendment to this
Lease confirming such Rent for the Renewal Term and affirming the renewal option
has been exercised. In the event Tenant fails to execute and return said
amendment within thirty (30) days after submittal thereof from Landlord to
Tenant, the Option to Renew shall be considered not exercised and null and void
and the Lease Term will expire as of the date set forth in this Lease.
5. GROSS LEASE. The Rent as specified above is a "gross rate." Tenant
shall not be responsible for any other costs or expenses associated with the
occupancy of the Premises unless otherwise specifically provided for herein.
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6. USE OF PREMISES.
(a) During the Lease Term and any renewals or extensions of this Lease,
Tenant may use and occupy the Premises for the operation of an orthodontic
and/or dental services facility, offices incidental to the operation of such
facility or any other use permitted by applicable zoning ordinances. Landlord
acknowledges that Tenant presently intends to use the Premises for an
orthodontic and/or dental services facility, and in connection therewith, may
operate and maintain on the Premises such orthodontic, dental, surgical and
office equipment and other facilities for the use of its patients, personnel,
invitees and licensees, as the Tenant may deem necessary, desirable or
convenient for the conduct of its business or for the comfort, convenience or
well-being of its patients, personnel, invitees and licensees. Landlord
represents that Tenant's use of the Premises as an orthodontic and/or dental
services facility is permitted by current zoning ordinances and any other
comprehensive land use requirements. In the event such zoning ordinances or
comprehensive land use requirements are altered or revised such that the
Tenant's use of the Premises as an orthodontic and/or dental services facility
is no longer permitted, Tenant at its option, may terminate this Lease upon
sixty (60) days notice to Landlord. Upon such termination this Lease shall
become null and void and neither Landlord nor Tenant shall have any remaining
obligations hereunder.
(b) The days on which and business hours during which Tenant elects to be
open for business to the public shall be at Tenant's sole discretion. Tenant, at
Tenant's option, may temporarily, or permanently, close for business to the
public so long as Tenant timely remits all payments due Landlord under this
Lease.
7. ENVIRONMENTAL COMPLIANCE.
(a) Landlord represents and warrants to Tenant that as of the date hereof
no "Hazardous Substances" (as hereafter defined) or any other toxic material or
medical waste are present on or in the Building, and Landlord shall indemnify
Tenant against any and all claims, demands, liabilities, losses and expenses,
including consultant fees, court costs and reasonable attorneys' fees, arising
out of any breach of the foregoing warranty.
(b) Except for Hazardous Substances or other toxic materials or medical
waste brought, kept or used in the Premises in commercial quantities similar to
those quantities usually kept on similar premises by others in the same
business, profession or dental specialty, and which are used and kept in full
compliance with applicable public health, safety and environmental laws, Tenant
shall not allow any Hazardous Substance, or other toxic material or medical
waste to be located in, on or under the Premises or allow the Premises to be
used for the manufacturing, handling, storage, distribution or disposal of any
Hazardous Substance or other toxic material.
(c) Tenant shall at all times and in all respects comply with all federal,
state or local laws, ordinances, regulations and orders applicable to the
Premises or the use thereof relating to industrial hygiene, the handling,
storage and disposal of medical waste, environmental protection, or the use,
analysis, generation, manufacture, storage, disposal or transportation of any
Hazardous Substance, toxic material or medical waste.
(d) If Tenant causes the presence of any Hazardous Substance in or on the
Premises (except for those Hazardous Substances or other toxic material or
medical waste brought, kept or used in the Premises by Tenant in commercial
quantities similar to those quantities usually kept on similar premises by
others in the same business, profession or dental specialty and which are used
and kept in compliance with applicable public health,
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safety and environmental laws) or if Tenant becomes subject to any order of any
federal, state or local agency to repair, close, detoxify, decontaminate or
otherwise remediate the Premises, Tenant shall, at its own cost and expense,
carry out and complete any repair, closure, detoxification, decontamination or
other cleanup of the Premises; provided that Tenant shall not be responsible for
any of the foregoing relating to any Hazardous Substance, or other toxic
materials or medical waste located on, in or under the Premises on the date of
this Lease, all of which shall be the responsibility of Landlord. If Tenant
fails to implement and diligently pursue any such repair, closure,
detoxification, decontamination other cleanup of the Premises, Landlord shall
have the right, but not the obligation, to carry out such action and to recover
all of the costs and expenses from Tenant.
(e) "Hazardous Substances" as such term is used in this Lease means any
hazardous or toxic substance, material or waste, regulated or listed pursuant to
any federal, state or local environmental law, including without limitation, the
Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Resource Conservation and Recovery Act, the Federal Insecticide, Fungicide,
Rodenticide Act, the Safe Drinking Water Act and the Occupational Safety and
Health Act as well as gasoline or any other petroleum product or byproduct,
poly-chlorinated byphenyls, asbestos and urea formaldehyde.
8. TAXES. Landlord shall pay and discharge prior to their delinquency, all
real estate taxes and assessments for public improvements, now or hereinafter
assessed or levied against the Premises during the term of this Lease, and all
penalties and interest thereon.
9. MAINTENANCE. Landlord shall maintain or cause to be maintained in good
repair and condition all of the Building (except the interior of the Leased
Space), and the Common Areas, including without limiting the generality of the
foregoing, all of the doors and the windows of the Leased Space, all other doors
of the Building, the roof, walls, floors, slab, foundations and other components
of the Building and all mechanical (heating, air conditioning, plumbing,
electrical) elements and components of the Building; and Landlord shall keep all
of the foregoing clean and free of all refuse and rubbish, dust and dirt and
otherwise in sightly first class condition and appearance. Tenant shall maintain
the interior of the Leased Space in good repair and condition. Landlord shall
make or cause to be made all repairs and replacements, whether foreseen or
unforeseen, ordinary or extraordinary, and do such other things as may be
required to maintain the Common Areas and the Building in the condition
specified in the preceding two sentences, and all of the foregoing shall be
performed in a good and xxxxxxx-like manner. Subject to the provisions of
Section 15(e), Tenant, however, shall promptly repair, in a good and workmanlike
manner, any damage to the Leased Space or other part of the Building caused by
any willful or negligent act or omission of Tenant, or of any employee, agent
of. Tenant.
10. COMPLIANCE WITH AUTHORITIES. Notwithstanding anything to the contrary
contained in this Lease, Landlord shall be responsible for compliance with any|
requirements of any board of fire underwriters or similar body relating to the
Leased Space and Building or any other law, rule, statute, regulation or
ordinance of any governmental agency or body having jurisdiction over the
Building including, but not limited to applicable codes and parking requirements
(collectively, "Laws") that apply to similar buildings in the city and state in
which the Building is located. Landlord hereby covenants and agrees at its
expense to maintain the Building and Common Areas in compliance with all
applicable Laws, including but not limited to, ADA (as hereinafter defined).
Landlord
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represents and warrants that the Leased Space, Building and Common Areas will be
in compliance with such applicable Laws, in effect as of the Lease Term
Commencement Date. Landlord hereby agrees that Tenant shall have no
responsibility for failure of the Leased Space, Building, or Common Areas to
comply with applicable laws, statutes, ordinances and regulations which are in
effect and applicable to the Leased Space, Building, or Common Areas as of the
Lease Term Commencement Date.
As used in this Section, the Americans with Disabilities Act shall mean the
Americans with Disabilities Act of 1991, 42 U.S.C. Section 12.101 et seq. and
all regulations applicable thereto promulgated as of the date hereof
(collectively, "ADA"). Tenant shall indemnify Landlord against claims arising
out of the failure of any Tenant Improvements completed by Tenant comply with
the requirements of the ADA. Landlord represents and warrants that the Leased
Space, Building and the Common Areas shall otherwise be in compliance with or
shall be made to comply with the requirements of ADA.
11. UTILITIES AND SERVICES. Landlord agrees to furnish the Premises with
heat and air conditioning, elevator services, if installed, water, sanitary
sewer, and electric current for lighting, ordinary orthodontic, dental and
medical equipment and business appliances. If any utilities provided to Tenant
are separately metered, Tenant shall pay all costs associated with the usage of
such utilities and all costs of telephone installations and service.
Notwithstanding anything contained in the Lease to the contrary, if any
interruption of utilities or services shall continue for more than three (3)
consecutive business days and shall render any portion of the Premises unusable
for the normal conduct of Tenant's business, and if Tenant does not in fact use
or occupy such portion of the Premises, then all rent payable hereunder with
respect to such portion of the Premises which Tenant does not occupy shall be
abated retroactively to the first (1st) business day of such interruption and
such abatement shall continue until full use of such portion of the Premises is
restored to Tenant. Provided that if such interruption continues for more than
twenty (20) consecutive business days, Tenant shall have the right to terminate
the Lease upon written notice to Landlord. Thereupon, this Lease shall terminate
and expire on the date set forth in such notice, which date shall not be more
than ninety (90) days after the date of such notice.
Except in the case of an emergency, the Landlord will give Tenant at least
five (5) business days prior notice if Landlord intends to interrupt any
services required to be furnished by the Landlord. Landlord shall insure that
any such interruptions are minimized to the extent possible.
12. ALTERATION OF PREMISES; SIGNAGE.
(a) Tenant may make alterations and improvements to the interior of the
Leased Space, and the mechanical or electrical components within the Leased
Space, without the prior consent of Landlord so long as such alterations and
improvements do not alter any structural components of the Building. In the
event Landlord's consent is required hereunder, such consent shall not be
unreasonably withheld or delayed following Tenant's submission of plans and
specifications for approval. All such alterations and improvements shall be
performed in a good and workmanlike manner by licensed contractors and in
compliance with all applicable laws, rules and regulations. At its sole expense
Tenant shall repair any damage to the Building or the Leased Space resulting
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from the removal from the Leased Space of any of Tenant's property or any such
alterations and improvements. In the case that Tenant removes any such
alterations or improvements, Tenant shall restore the Leased Space to
substantially its condition prior to the time such alterations and improvements
were made, unless Tenant makes further alterations or improvements in accordance
with this Lease. All alterations and improvements made by Tenant that remain in
the Leased Space at the expiration of this Lease shall become the property of
Landlord.
(b) Tenant may, without Landlord's consent, install temporary partitions,
shelves, bins, equipment, trade fixtures and other personal property in the
Premises. These items shall remain Tenant's property and may be removed by
Tenant prior to the expiration or earlier termination of this Lease. Tenant
shall repair any damage to the Premises caused by such removal.
(c) Tenant shall have the right to install signage on the exterior of the
Leased Space in a maximum size and configuration allowed by applicable Laws.
Furthermore, Tenant shall have the right to signage on the pylon or any other
major sign at any and all entrance points of the Building or on the front
entrance of the Project. All such signage rights shall be granted at no
additional costs or expense to Tenant.
13. PARKING. Tenant shall be entitled to use all available parking spaces
throughout the Term at no additional cost.
Notwithstanding anything to the contrary contained in this Lease, if any
event or action or omission by Landlord renders the parking areas for the
Project and/or Tenant's parking space allocation (including reserved spaces, if
any) for whatever reason inaccessible, unusable, unsafe, or which causes the
number of parking spaces for the Project and/or Tenant's parking space
allocation for the Premises to be reduced below applicable local code
requirements (which reasons may include but are not limited to repairs,
maintenance, casualty, condemnation, or displacement or dislocation caused by
future construction), Landlord shall immediately provide substitute parking
areas for Tenant's use and its invitees which areas shall (i) cause no net
reduction in Tenant's parking space allocation, (ii) be similarly convenient in
terms of location, quality and safety, and (iii) except in the case of an
emergency, be designated by prior written notice to Tenant with the exact
location of such substitute parking areas subject to Tenant's approval not to be
unreasonably withheld, conditioned or delayed.
14. MUTUAL INDEMNIFICATION.
(a) Subject to the provisions of Section 15(e), Tenant shall indemnify and
hold Landlord harmless from and against any and all claims of third parties
arising out of (i) any breach or default by Tenant in the performance of any of
its obligations under this Lease, or (ii) any negligent act or intentional
misconduct of Tenant, or any officer, agent, employee, contractor, servant,
invitee or guest of Tenant; and in each case from and against any and all
damages, losses, liabilities, lawsuits, costs and expenses (including reasonable
attorneys' fees at all tribunal levels) arising in connection with any such
claim or claims as described in (i) or (ii) above, or any action brought
thereon, provided that Tenant shall not be liable to indemnify Landlord with
respect to any of the foregoing arising out of the negligence or willful
misconduct of Landlord and any of its contractors, agents, employees, officers,
partners, or their invitees.
(b) Subject to the provisions of Section 15(e) Landlord shall indemnify
and hold
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Tenant harmless from and against any and all claims of third parties arising out
of (i) any breach or default by Landlord in the performance of any of its
obligations under this Lease or (ii) any negligent act or intentional misconduct
of Landlord, or any officer, agent, employee, contractor, servant, invitee or
guest of Landlord; and in each case from and against any and all damages,
losses, liabilities, lawsuits, costs and expenses (including reasonable
attorneys' fees at all tribunal levels) arising in connection with any such
claim or claims as described in the above (i) or (ii) of this sentence, or any
action brought thereon, provided that Landlord shall not be liable to indemnify
Tenant with respect to any of the foregoing arising out of the negligence or
willful misconduct of Tenant and any of its contractors, agents, employees,
officers, partners, or their invitees.
(c) If a claim is made against the indemnitee which the indemnitee
believes to be covered by an indemnitor's indemnification obligations hereunder,
the indemnitee shall promptly notify the demnitor of the claim and, in such
notice shall offer to the indemnitor the opportunity to assume the defense of
the claim within ten (10) business days after receipt of the notice (with
counsel reasonably acceptable to the indemnitee). If the indemnitor timely
elects to assume the defense of the claim, the indemnitor shall have the right
to settle the claim on any terms it considers reasonable and without the
indemintee's prior written consent, as long as the settlement shall not require
the indemnitee to render any performance or pay any consideration, and the
indemnitee shall ot have the right to settle any such claim. If the indemnitor
fails timely to elect to assume he defense of the claim or fails to defend the
claim with diligence, then the indemnitee hall have the right to take over the
defense of the claim and to settle the claim on any terms the indemnitee
considers reasonable. Any such settlement shall be valid as against he
indemnitor. If the indemnitor assumes the defense of a claim, the indemnitee may
employ its own counsel but such employment shall be at the sole expense of the
indemnitee. If any claim arises out of the negligence of both Landlord and
Tenant,| responsibility for such claim shall be allocated between Landlord and
Tenant based on their respective degrees of negligence.
15. INSURANCE; WAIVER OF SUBROGATION.
(a) Throughout the Term, Tenant, at its sole cost and expense, shall
provide and keep in force, with responsible insurance companies, (i) commercial
general liability insurance with respect to this Lease and the Leased Space in
the following amounts for any one accident or occurrence: property damage not
less than $300,000 and personal injury or death not less than $1,000,000; and
(ii) property insurance insuring Tenant against loss or damage to its leasehold
improvements, equipment and other personal property in the Leased Space by fire
and all other casualties usually covered under an fire and extended coverage
policy of casualty insurance. In addition, Tenant shall maintain workers
compensation coverage to the extent required by law.
(b) Landlord shall keep the Premises, the Building and the Common Areas
insured against loss by fire, windstorm, sprinkler leakage, flood, earthquake,
water damage and all the risks and perils insured against in an "all risk" of
physical loss insurance policy, in an amount equal to not less than the full
replacement value thereof. Throughout the Term, Landlord shall also keep in
force, with responsible insurance companies commercial general liability
insurance in the following amounts for any one accident or occurrence: property
damage not less than $300,000 and personal injury or death not less than
$1,000,000.
(c) Every policy required by this Section (i) shall be provided by
insurance
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companies with an A.M. Best rating of at least (A-)(VII) and licensed to do
business in the State in which the Premises is located and (ii) shall contain an
agreement by the insurer that it will endeavor to provide Landlord and Tenant
with at least thirty (30) days written notice prior to the cancellation of such
policy.
(d) At the commencement of the term of this Lease, Landlord and Tenant
shall each deliver to the other certificates of the insurance required to be
maintained hereunder. Landlord and Tenant shall also deliver to each other at
least ten days prior to the expiration date of such policy or policies (or of
any renewal policy or policies), certificates for renewal policies of such
insurance. In the event either Landlord or Tenant receives notice of
cancellation or other material change in the insurance policies required
hereunder, such party shall immediately forward a copy of such notice to the
other party.
(e) Landlord and Tenant on behalf of themselves and all others claiming
under them, including any insurer, waive all claims against each other,
including all rights of subrogation, for loss or damage to their respective
property (including, but not limited to, the Premises) arising from fire, smoke
damage, windstorm, hail, vandalism, theft, malicious mischief and any of the
other perils normally insured against in an "all risk" of physical loss
insurance policy, regardless of whether insurance against those perils is in
effect with respect to such party's property and regardless of the negligence of
either party. Each party shall obtain from its respective insurer a written
waiver of all rights of subrogation that it may have against the other party.
This provision, however, shall not apply to the extent that it would render void
the insurance coverage obtained by Landlord or Tenant, but only if that party
(a) makes reasonable efforts to obtain insurance coverage that would not be
voided by this waiver of liability and (b) notifies the other party in writing
prior to any loss or damage that this waiver will not apply.
16. MECHANIC'S LIENS. Tenant shall not suffer or permit any mechanic's
liens or materialman's liens to be filed against the real property of which the
Premises form a part nor against the Tenant's leasehold interest in the Premises
with respect to work or services performed or materials furnished to Tenant or
the Premises, and, in case any such lien attaches, or claim of lien is asserted,
Tenant covenants and agrees at its sole option to do any one of the following:
(i) to cause such lien or claim of lien to be promptly released and removed of
record or cause Landlord's title insurer to insure over said lien, (ii) post a
surety bond in amount necessary to remove the lien of record pursuant to the
laws and regulations of the jurisdiction in which the Premises is located, or
(iii) deliver such other security or indemnity that Landlord may reasonably
require.
17. LANDLORD'S RIGHT OF ENTRY. At reasonable times during normal business
hours, Landlord or its agents shall have the right to enter the Premises in
order to examine it, to show it to prospective tenants, lenders, ground lessors,
and purchasers, or to make such repairs, alterations, improvements or additions
as Landlord shall reasonably deem necessary. Landlord, however, must provide
Tenant not less than 48 hours prior written notice and must conduct any such
work so as not to impair Tenant's use and enjoyment of the Premises.
18. CONDEMNATION, FIRE AND OTHER CASUALTY.
(a) If the Building, the Common Areas, the Leased Space or any material
part of any of them shall be taken by any authorized entity by eminent domain or
by negotiated purchase under threat thereof, and as a consequence thereof the
Premises shall become totally untenantable or the use of the Common Areas is
impaired, this Lease shall
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terminate as of the date when possession thereof is surrendered and all rights
and obligations of Tenant in and under this Lease shall immediately cease and
terminate. If a part of the Building or the Common Areas or a portion of the
Leased Space shall be so taken or purchased so that the Premises becomes only
partially untenantable or the suitability and use of the Premises or the Common
Areas are slightly impaired, Landlord at its expense shall promptly repair the
Premises and the Common Areas, and the Rent shall be equitably and
proportionately abated during the period of such partial untenantability. All
compensation awarded for any taking (or the proceeds of negotiated sale under
threat thereof) whether for the whole or a part of the Building or the Premises,
shall be the property of Landlord, whether such proceeds or award are
compensation for loss or damage to Landlord's or Tenant's property or their
respective interests in the Premises, except that the portion of such
compensation which is allocable to leasehold or other tenant improvements made
at Tenant's cost and expense shall be the property of Tenant. Tenant may also
make a separate claim for Tenant's relocation expenses. If less than all of the
Leased Space, Building or the Common Areas shall be taken as aforesaid and this
Lease does not terminate, Landlord, at its sole cost and expense, shall promptly
restore the Leased Space, Building or the Common Areas, as the case may be, to
such condition which is nearly as possible the same as prior to such taking.
(b) If the Premises or the Building shall be damaged by fire or other
casualty and (i) the Premises are thereby rendered wholly unsuitable for its
intended use, or (ii) the cost of repair or restoration as estimated by a
contractor, architect or other construction consultant selected by Landlord and
Tenant, exceeds 1/3 of the full replacement cost of the Building and/or the
Premises (whichever is applicable); then in either such event either party may
terminate this Lease. In addition, if the contractor, engineer or other
construction consultant estimates that the required repair or restoration work
cannot be completed within 180 days of the occurrence of such damage, either
Landlord or Tenant may terminate this Lease. If either party is entitled to
terminate this Lease and desires to do so, it shall give the other party written
notice of termination within thirty (30) days of the occurrence of such damage,
and upon the giving of such notice, this Lease shall terminate as of the date of
the casualty, and any prepaid Rent shall be refunded to Tenant. If the Premises
shall be damaged by any casualty as described in the first sentence of this
Section 18(b), but are rendered only partially untenantable, Landlord shall
promptly repair the same at its expense, and the Rent shall proportionately
xxxxx during the period of such partial untenantability.
19. REMEDIES IN THE EVENT OF DEFAULT.
(a) The following shall constitute an "Event of Default" hereunder: (i)
Tenant fails to make payment of any installment of Rent or any Additional Rent
or other sum payable by Tenant hereunder within ten (10) days after receipt of
written notice of non-payment or (ii) Tenant fails to promptly or fully perform
any other provision of this Lease on Tenant's part to be performed and fails to
cure such failure within thirty (30) days after receipt of written notice, or if
such breach cannot be cured within such thirty (30) day period, such longer
period of time as may be reasonably required. Upon the occurrence of an Event of
Default, Landlord shall have the option to pursue any one of the following
remedies:
(i) Terminate this Lease and re-enter and retake possession by
legal process, and declare immediately due and payable the
entire amount of the Rent then remaining to be paid under this
Lease for the balance of the lease term, adjusted to
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present value at six percent (6%) per annum, less the fair
rentable value of the Premises for the balance of the term
also adjusted to present value at the rate of six percent (6%)
per annum; or
(ii) Terminate Tenant's right of possession without terminating
this Lease and re-enter and retake possession by legal
process, expel Tenant and remove all property therefrom and
re-let the Premises for the Tenant's account and receive the
rent therefrom. Landlord shall make reasonable efforts to
re-let the premises to a responsible tenant at the best
possible rent. Tenant shall thereafter be obligated to pay to
Landlord an amount equal to the rent due under this Lease for
the remaining term, less the amount of any rent from any
substitute tenant, together with the Landlord's costs of
re-letting including, without limitation, the alterations,
redecorating and reasonable and customary real estate broker's
fees and commissions. For purposes of this remedy, the parties
agree that the statute of limitations for the Landlord's
recovery of rent from Tenant shall not begin to run until the
expiration of the original term of this Lease.
No waiver by Landlord of any violation or breach of any of the terms,
provisions and covenants of this Lease shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained. Forbearance by Landlord to enforce
one or more of the foregoing remedies provided upon an event of default by
Tenant shall not be deemed or construed to constitute a waiver of such default
or the ability to select which remedy Landlord desires. If landlord incurs
reasonable expense, including court costs and attorney fees, as a result of a
default by Tenant under this Lease, and pursues one of the remedies set forth
above, then such expenses shall be reimbursed by Tenant as Additional Rent,
whether or not such default is subsequently cured.
(b) If Tenant shall fail to make any payment or perform any act required
to be made or performed under this Lease, Landlord, without waiving or releasing
any obligation or default, may (but shall be under no obligation to), at any
time, and upon reasonable notice to Tenant, make the payment or perform the act
for the account of and at the expense of Tenant, and may enter upon the Premises
for that purpose and take all actions as may be necessary to correct Tenant's
breach. No such entry shall be deemed an eviction of Tenant. All sums so paid by
Landlord and all costs and expenses (including, but not limited to, reasonable
attorneys' fees and expenses) so incurred, together with interest at the rate of
2% per annum in excess of the prime rate of interest as announced from time to
time by The Wall Street Journal from the date of payment, shall constitute
additional rent and shall be paid by Tenant to Landlord on demand.
(c) In the event Landlord is in default under the terms of this Lease,
Tenant may provide written notice of such default to Landlord. Upon the
expiration of thirty (30) days following the giving of such notice, if Landlord
(i) has failed to cure such default or (ii) in the case of a default (other than
the payment of money) which by its nature cannot be completely cured within such
thirty (30) day period, Landlord does not within such period commence to cure
the default, and diligently pursue and complete the cure in a reasonable period
of time, then in either such event Tenant may do all things necessary or
desirable to remedy such default and perform the obligations of Landlord which
have not been fully or
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properly performed. Landlord shall immediately upon demand reimburse Tenant for
all costs and expenses incurred by Tenant in connection with the foregoing plus
interest at the rate set forth in Section 19(b) above and, in addition, if
Landlord fails to make such payment within thirty (30) days of Tenant's written
demand, Tenant may set off the amount of all costs and expenses incurred by
Tenant in connection with the foregoing, plus interest at the rate defined in
this Section against rent payment coming due under this Lease, and if at the end
of the Term, extend the Lease for a period sufficient to recover such amount.
(d) The aforementioned thirty (30) day period of time permitted for
Landlord to cure its default and the periods of time permitted for Tenant to
cure defaults hereunder shall be extended if the default cannot be cured within
the time period allowed herein, so long as such party is diligently and
continuously attempting to cure. The cure periods shall also be extended for any
period of time during which the defaulting party is delayed in, or prevented
from, curing due to fire or other casualty, or acts of God, strikes, lockouts,
power shortages or outages, enactment, adoption, or promulgation of new laws, or
the application or enforcement of laws. Notwithstanding the foregoing, there
shall be no extended period in which to cure a monetary default.
20. NOTICES. All notices, demands and requests which may be given or which
are required to be given by either party to the other must be in writing. All
notices, demands and requests by Landlord or Tenant shall be addressed as
follows (or to such other address as a party may specify by duly given notice):
RENT PAYMENT CDB. LLC
ADDRESS: 000 Xxxxx Xxxx Xxxx. X.
Xxxxx Xxxxx Xxxxx. XX 00000
TaxID# 00-0000000
LEGAL NOTICE CDB. LLC
ADDRESS FOR 000 Xxxxx Xxxx Xxxx. X.
XXXXXXXX Xxxxx Vedra Beach. FL 32082
WITH A COPY TO:
______________________________
______________________________
TENANT: Orthodontic Centers of Florida. Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxxxx. Xxxxx 000
Xxxxxxxx. XX 00000
WITH A COPY TO:
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Notices, demands or requests which Landlord or Tenant are required or
desire to give the other hereunder shall be deemed to have been properly given
for all purposes if (i) delivered against a written receipt of delivery, (ii)
mailed by express, registered or certified mail of the United States Postal
Service, return receipt requested, postage prepaid, or (iii) delivered to a
nationally recognized overnight courier service for next business day delivery,
to its addressee at such party's address as set forth above. Each such notice,
demand or request shall be deemed to have been received upon the earlier of the
actual receipt or refusal by the addressee. The parties shall notify the other
of any change in address, which notification must be at least fifteen (15) days
in advance of it being effective. Notices may be given on behalf of any party by
such party's legal counsel.
21. ASSIGNMENT AND SUBLETTING. With Landlord's prior consent, which
consent shall not be unreasonably withheld or delayed, Tenant shall have the
right to sublet all or any portion of the Premises. Landlord hereby
affirmatively consents to the sublease of all or any portion of the Premises to
Xx. Xxxx Xxxxxxx. Each such sublease shall be subject and subordinate to this
Lease and Tenant shall remain liable for the performance of all of its covenants
and agreements under this Lease. Notwithstanding the
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foregoing, Tenant shall not assign this Lease in whole or in part without the
consent of Landlord, which consent shall not be unreasonably withheld; provided
that, without the consent of Landlord, Tenant may assign this Lease to (i)
Orthodontic Centers of America, Inc. ("OCA") or any subsidiary or other entity
owned at least 51%, directly or indirectly, by Tenant or OCA, or (ii) to any
person, firm or corporation who is the purchaser of all or substantially all of
the assets of Tenant or is the successor to substantially all the assets and
business of Tenant by virtue of a corporate merger or consolidation of, with or
into Tenant. No such assignment without the consent of Landlord, as described in
clauses (i) or (ii) shall be effective unless each such assignee by written
instrument or operation of law, shall assume and become bound to perform and
observe all of the covenants and agreements of Tenant under this Lease but upon
the effectiveness of any such assignment, Tenant and OCA shall be released of
all further liability for the payment of rent and for the performance and
observance of all of the other covenants and agreements of Tenant under the
Lease.
22. ATTORNEY'S FEES. In the event of any legal or equitable action arising
out of this Lease, the prevailing party shall be entitled to recover all fees,
costs and expenses, together with reasonable attorneys' fees incurred in
connection with such action. 23. GOVERNING LAW. This Lease shall be governed by
the laws of the state in which the Premises are located.
24. QUIET ENJOYMENT. Landlord represents and covenants that Landlord owns
the Project in fee simple, and has full right, power and authority to enter into
this Lease for the term herein granted and Landlord covenants and agrees with
Tenant that upon Tenant paying the Rent and Additional Rent and observing and
performing all the terms, covenants and conditions on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy the Demised
Premises, free from any interference or molestation.
25. HOLDING OVER AND SURRENDER OF PREMISES. A hold over beyond the
expiration of the Term shall operate as an extension of this Lease from month to
month on the same terms and conditions as herein provided, except for duration
and that the monthly rental shall be 125% of the amount of the monthly
installment due and payable hereunder for the last full month of the Term. Such
extended term may be terminated either by Landlord or Tenant by giving 30 days'
prior written notice to the other. This Section shall in no way constitute a
consent by Landlord to any holding over by Tenant upon the expiration or earlier
termination of this Lease, provided, however, Landlord's monetary remedies for
such holdover shall be limited to collection of holdover rental as specified
above. At the expiration of the Term or any holdover, Tenant shall yield the
Leased Space to Landlord in as good order and repair as when delivered to
Tenant, ordinary wear and tear and damage by fire and extended coverage perils
and other causes beyond the reasonable control of Tenant, excepted.
26. SUBORDINATION TO MORTGAGES. Landlord hereby guarantees to Tenant as a
condition to the performance of Tenant's other obligations under this Lease,
that this Lease shall be senior to and shall at all times have priority over all
liens and encumbrances, now existing or hereafter affecting the Project. In the
event that in connection with the financing or refinancing of the Project,
Landlord shall have obtained or
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shall hereafter obtain a mortgage loan from an institutional lender and such
lender requires that this Lease be subordinated to the hen of the mortgage or
deed of trust securing repayment of such loan (the "Mortgage"). Tenant agrees to
subordinate its interest under this Lease to such Mortgage; provided that the
holder of such mortgage shall execute and deliver to Tenant a non-disturbance
and attornment agreement which provides that so long as no default has occurred
and is continuing beyond the period of time allowed for the remedy thereof under
the terms of this Lease, the holder of the Mortgage (i) shall not disturb
Tenant's leasehold interest in or possession of the Premises in accordance with
the terms hereof, (ii) shall permit application of all proceeds of insurance and
all awards and payments in connection with the exercise or threatened exercise
of the power of eminent domain in accordance with the provisions of this Lease,
and (iii) waives all rights or interests in any trade fixtures of either Tenant
or any of its subtenants. It shall be a condition to the effectiveness of this
Lease that Landlord deliver to Tenant a subordination, nondisturbance and
attornment agreement in accordance with the terms of the preceding sentence and
in the form reasonably satisfactory to Tenant, with respect to each Mortgage
which now constitutes a lien against the Project.
27. WAIVER OF LANDLORD'S LIEN; LEASEHOLD MORTGAGE
(a) Landlord hereby waives any lien rights which it may otherwise have
concerning Tenant's property, which shall include furniture, fixtures,
equipment, any and all equipment and/or supplies utilized by Tenant in its
business operations ("Tenant's Property"), and Tenant shall have the right to
remove the same at any time without Landlord's consent.
(b) Landlord acknowledges that Tenant has financed or may finance some or
all of Tenant's Property through financing arrangements including promissory
notes and a financial and security agreement for the financing of Tenant's
Property with a third party or parties (collectively, "Leasehold Mortgagee"). In
connection therewith, Landlord (i) consents to this installation of Tenant's
Property, (ii) hereby disclaims any interest in Tenant's Property, as fixtures
or otherwise, and (iii) hereby agrees that Tenant's Property shall be exempt
from execution, foreclosure, sale, levy, attachment or distress for any rent due
or to become due and that such collateral may be removed at any time in
accordance with the conditions and limitations of the Lease, without recourse to
legal proceeding.
(c) Landlord hereby consents to the assignment by Tenant of this Lease to
Leasehold Mortgagee as security for the payment of all indebtedness and
performance of obligations under the financing referred to in clause (b) above
(collectively, the "Leasehold Mortgage Documents"). Landlord agrees that so long
as any such Leasehold Mortgage Documents shall remain unsatisfied, the following
provisions shall apply:
(i) Landlord shall, upon serving Tenant with any notice of
default, promptly serve a copy of such notice upon Leasehold
Mortgagee. Leasehold Mortgagee shall thereupon have the same
period as is allowed to Tenant, to remedy or cause to be
remedied the defaults specified by Landlord, and Landlord
shall accept such performance by or at the instigation of
Leasehold Mortgagee in response to any such notice of default
as if the same had been performed by Tenant;
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(ii) Should Tenant be in default under the terms of such Leasehold
Mortgage Documents, Leasehold Mortgagee shall have the right,
but not the obligation, to receive an assignment of this Lease
for the remainder of its term and assume all of Tenant's
rights, duties and obligations under the Lease, provided that
as a condition to such assignment and assumption Leasehold
Mortgagee shall have remedied or caused to be remedied
defaults, if any, under this Lease of which Leasehold
Mortgagee shall have been given written notice prior to such
assignment and assumption, and provided further that the use
of the Premises by any such Leasehold Mortgagee shall be
substantially similar to that of Tenant immediately prior to
the assumption; and
(iii) If Landlord shall elect to terminate this Lease by reason of
the default of Tenant and the Leasehold Mortgagee assumes the
obligations of Tenant as provided above, Leasehold Mortgagee
shall have the right to take possession of the Premises for a
period of not more than 30 days after the date of termination
for the sole and exclusive purpose of liquidating and/or
removing Tenant's Property; provided, however, that as a
condition to taking such possession Leasehold Mortgagee shall
prepay the rent and all other charges and comply with and
perform all of the other terms, conditions and provisions of
this Lease on Tenant's part to be complied with and performed
during such period of possession, had this Lease not been
terminated, and provided further that if it is impractical for
Leasehold Mortgagee to so liquidate and/or remove Tenant's
Property within the thirty (30) day period prescribed above,
Leasehold Mortgagee may, subject to prepayment of rent and
compliance with the other terms of the Lease, extend its right
to take possession for up to an additional sixty (60) days.
28. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 21, this
Lease shall bind and inure to the benefit of the respective heirs, personal
representatives, successors and assigns of Landlord and Tenant.
29. BROKERS. Landlord and Tenant agree that no brokerage commissions or
similar compensation is due in connection with this transaction. Each party
agrees to indemnify the other against all claims for brokerage commissions or
other compensation for services rendered at its instance in connection with this
transaction.
30. PARTIAL INVALIDITY. If any provision of this Lease or its application
to any person or circumstances shall to any extent be invalid or unenforceable,
the remainder of this Lease, or the application of that provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected, and each provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
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31. MEMORANDUM OF LEASE. Upon the written request of either party hereto,
the parties shall execute a memorandum of lease in recordable form, which in
addition to the matters which may be required by applicable law shall also
include a description of all of Tenant's purchase options and purchase rights
hereunder.
32. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties and cannot be amended unless the amendment is in writing and executed by
the party against whom the enforcement of the amendment is sought.
33. COUNTERPARTS. This Lease may be executed in one or more counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute one and the same document.
34. GUARANTY OF LEASE. Notwithstanding anything herein to the contrary,
Landlord's obligations under this Lease are conditioned on OCA executing and
delivering to Landlord a Guaranty of Lease in the form attached hereto as
Exhibit "34".
35. TERMINATION. Upon the expiration or earlier termination of that
certain Business Service Agreement by and between Tenant and Xx. Xxxx Xxxxxxx,
Tenant may elect to terminate this Lease effective immediately upon notice to
Landlord. Upon such termination this Lease shall become null and void and
neither Landlord, Tenant, nor OCA shall have any remaining obligations
hereunder.
39. OPTION TO TERMINATE FOR DEATH OR DISABILITY. Provided an Event of
Default shall not have occurred and be ongoing hereunder, if Tenant's Occupant
Orthodontist (hereinafter defined) dies or becomes totally and permanently
disabled (physically or mentally), Tenant may terminate this Lease following
such death or onset of disability upon providing Landlord written notice of
termination at least sixty (60) days prior to the desired termination date. For
purposes of this Lease, Tenant's Occupant Orthodontist shall mean the
orthodontist operating within the Leased Space under either a sublease from
Tenant or a business services agreement with Tenant.
(Remainder of Page intentionally left blank)
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THE PARTIES HERETO have executed this Lease as of the Effective Date.
LANDLORD:
CDB, LLC
By: /s/ Xxxxxx X. X. Xxxxxxx
Name: Xxxxxx X. X. Xxxxxxx
Title: Manager
TENANT:
ORTHODONTIC CENTERS OF FLORIDA, INC.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President of Real Estate
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EXHIBIT "1(A)"
Floor Plan of Premises
18
EXHIBIT "34"
GUARANTY OF LEASE
GUARANTY
Forming a part of that certain lease ("Lease"), dated August 4, 2004
between CDB, LLC, a Florida Limited Liability Company the "Landlord"), and
ORTHODONTIC CENTERS OF FLORIDA, INC., a Delaware corporation (the "Tenant") for
space located at 0000 Xxxx Xxxxx Xxxxxx. Xxxxx Xxxx, XX, 00000. For the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned: ORTHODONTIC
CENTERS OF AMERICA, INC. (hereinafter referred to as the "Guarantor"), hereby
guarantees to Landlord, its successors and assigns, the full and prompt payment
of Rent, Additional Rent, and any and all other sums and charges payable under
the Lease by Tenant, its successors and assigns, and hereby further guarantees
the full and timely performance and observance of all of the covenants, terms,
conditions and agreements under the Lease provided to be performed and observed
by Tenant, its successors and assigns.
Guarantor hereby covenants and agrees to and with Landlord, its successors
and assigns, that if Tenant shall at any time be in default, or if Tenant should
fail to pay any other sums and charges required of Tenant under the Lease, or
default in the performance and observance of any of the terms, covenants,
conditions or agreements contained in the Lease, Guarantor shall and will
immediately pay such sums and charges to Landlord, its successors and assigns,
and any arrears thereof, and shall and will immediately perform and fulfill all
of such terms, covenants, conditions and agreements, and will immediately pay to
Landlord all damages that may arise as a consequence of any default by Tenant,
its successors and assigns, under the Lease, including, without limitation, all
reasonable attorneys' fees and costs incurred by Landlord or caused by any such
default and/or by the enforcement of this Guaranty.
This Guaranty is an absolute and unconditional Guaranty of payment and
performance. The obligations of Guarantor hereunder are independent of the
obligations of Tenant and shall be enforceable against Guarantor, and
Guarantor's heirs, administrators, executors, successors and assigns, without
the necessity for any suit or proceedings on Landlord's part of any kind or
nature whatsoever against Tenant, its successors and assigns, and without the
necessity of any notice of nonpayment, non-performance or non-observance or of
any notice of acceptance of this Guaranty or of any other notice or demand to
which Guarantor might otherwise be entitled, all of which Guarantor hereby
expressly waives.
This Guaranty shall be a continuing Guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of any assignment, renewal, modification or extension of the Lease or by
reason of any modification or waiver of or change in any of the terms,
covenants, conditions or provisions of the Lease, or by reason of any extension
of time that may be granted by Landlord to Tenant, its successors or assigns, or
by reason of any dealings or
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transactions or matter or thing occurring between Landlord and Tenant, its
successors or assigns, whether or not notice thereof is given to Guarantor.
Guarantor hereby expressly agrees that (i) the validity of this Guaranty
and the obligations of Guarantor hereunder shall not be terminated, affected,
diminished or impaired by reason of the assertion or the failure to assert by
Landlord against Tenant, or its successors and assigns, of any of the rights or
remedies reserved to Landlord pursuant to the provisions of the Lease, (ii) no
delay on the part of Landlord in enforcing any of its rights and remedies or
insisting thereupon shall in any way limit, affect or impair the liability of
Guarantor hereunder, and (iii) that all rights and remedies of Landlord under
the Lease and hereunder shall survive any discharge, moratorium or other relief
granted any person primarily or secondarily liable in any proceeding under
federal or state law relating to bankruptcy, insolvency or the relief or
rehabilitation of debtors, and any consent by Landlord to or participation by
Landlord in the proceeds of, any assignment, trust or mortgage for the benefit
of creditors or any composition or arrangement of debts, may be made without
Guarantor being discharged or affected in any way thereby.
The obligations of Guarantor shall not be affected by any insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition, dissolution,
winding-up or similar proceeding involving or affecting Tenant (whether or not
Guarantor shall have notice or knowledge thereof).
This Guaranty shall in no event terminate until the expiration of the
period during which the final payment hereunder or in connection herewith may be
subject to rescission, restoration or return under any bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar law of general
applicability relating to or affecting creditor's rights and shall continue to
be effective if at any time payment, or any part thereof, or any of the
obligations guaranteed hereby is rescinded or must otherwise be restored or
returned by Landlord upon the insolvency, bankruptcy or reorganization of Tenant
or other circumstances affecting Tenant, all as though such payment has not been
made.
Guarantor further represents and warrants to Landlord, as an inducement
for it to execute the Lease, that Guarantor has a financial interest in Tenant,
and, if Guarantor is a corporation, that the execution and delivery of this
Guaranty is not in contravention of its charter or by-laws and has been duly
authorized by its board of directors.
All of Landlord's rights and remedies under the Lease and under this
Guaranty are intended to be distinct, separate and cumulative and no such right
or remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
This Guaranty shall be governed by and construed in accordance with the
laws of the State in which the Premises are located. By execution and delivery
of this Guaranty, Guarantor submits to and accepts, with regard to any such
action or proceeding related hereto, the jurisdiction of those courts.
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Wherever possible, each provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under applicable law, said
provision shall be ineffective only to the extent of such provision and shall
not affect the remaining provisions of this Guaranty.
All terms used herein shall have the same meaning herein provided in the Lease.
Dated this 4th day of August, 2004.
ORTHODONTIC CENTERS OF AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Vice President of Real Estate
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