Exhibit 10.21
LEASE AGREEMENT
BOCA RATON, FLORIDA
THIS LEASE AGREEMENT (this "Lease") is made as of this 22nd
day of November, 1999, by and between FAIRFAX BOCA 92, L.P., a Georgia limited
partnership ("Landlord"), and MEDICAL STAFFING NETWORK, INC., a Delaware
corporation ("Tenant");
W I T N E S S E T H :
1. PREMISES. In consideration of the rents, terms and covenants of this
Lease, Landlord hereby leases, lets and demises to Tenant those certain premises
(the "Premises") containing approximately 15,000 rentable square feet situated
on the first (1st) floor of Pod E in Building 235, 000 Xxxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000 (the "Building"), as shown outlined on EXHIBIT A, attached hereto
and made a part hereof. The land upon which the Building is located is more
particularly described on EXHIBIT B, attached hereto and made a part hereof (the
"Land"; the Building and the Land together with all improvements located thereon
are collectively referred to herein as the "Project"). All of the windows and
outside walls of the Premises, and any space in the Premises used for shafts,
pipes, conduits, ducts, telephone ducts and equipment, electric or other
utilities, or other Building facilities, and the use thereof and access thereto
through the Premises for the purposes of operation, maintenance, inspection,
display and repairs are hereby reserved to Landlord.
2. TERM. The Term (as hereinafter defined) of this Lease shall be for a
term of five (5) years and eight (8) months commencing on December 1, 1999 (the
"Commencement Date") and ending at 12:00 midnight on July 31, 2005 (the
"Expiration Date") (such term, taking into account any sooner termination or
renewal or extension, is hereinafter referred to as the "Term"). Tenant's
occupancy of all or any portion of the Premises prior to the Commencement Date
shall be subject to and Tenant agrees to comply with (as though the Term has
commenced) all of the provisions of this Lease. Landlord agrees to deliver
possession of the Premises to Tenant for purposes of construction on or before
November 15, 1999.
3. BASE RENT. (a) Tenant agrees to pay Base Rent in monthly
installments on the first day of each month, during the original Term of the
Lease in an amount equal to the product of the number of rentable square feet
contained in the Premises, multiplied by the annual rate per rentable square
foot set forth below:
The initial annual Base Rent shall be $11.75 per RSF and shall escalate
by three percent (3%) per annum beginning January 2001. Tenant shall be provided
rent abatement for a period of four months (December 1, 1999 - March 31, 2000)
on Base Rent only. However, if Tenant is not in occupancy during the month of
December 1999, then both Base Rent and Operating Expenses will be abated.
Tenant shall be provided access to the Premises effective November 15,
1999 for beginning improvements. Any occupancy during the period of November 15,
1999 through November 30, 1999 shall be completely rent-free.
Each monthly installment of Base Rent shall be payable to Landlord at the
address set forth in Section 32 below on the first day of each calendar month,
in legal tender of the United States of America, without abatement, demand,
reduction or offset whatsoever, except as may be expressly provided in this
Lease. The monthly installment of Base Rent shall be due and payable on or
before the first day of each calendar month following the Commencement Date
during the Term; provided, that if the Commencement Date should be a date other
than the first day of a calendar month, the monthly Base Rent shall be prorated
to the end of that calendar month. Tenant shall pay, as Additional Rent, all
other sums due from Tenant under this Lease, including, but not limited to, any
rent tax or other tax imposed upon Landlord based upon rent payments (other than
income taxes and impositions of like character) to the extent not included in
Operating Expenses (as hereinafter defined) (the term "Rent" means all Base
Rent, Additional Rent and all other amounts payable hereunder from Tenant to
Landlord).
(b) In addition to the Base Rent payable pursuant to Section
3(a) above, Tenant shall promptly pay to Landlord the cost of electric power
consumed in the Premises within any computer room, or for supplemental air
conditioning systems or any equipment installed which consumes electric current
in excess of the amounts specified in Section 9(c). Tenant shall, at Tenant's
sole cost and expense, install a submeter to measure all such electric power
consumed in the Premises by Tenant in such locations and Tenant shall pay the
cost of such electric power so consumed as determined by the submeter calculated
at the rate structure then existing of the utility company supplying electrical
energy to the Premises.
4. OPERATING EXPENSES. (a) COMPUTATION AND PAYMENT. Tenant agrees to
pay as Additional Rent, Tenant's pro rata share of such Operating Expenses (as
hereinafter defined) of the Project. The 2000 projected operating expenses are
$7.05 per SF. Landlord shall estimate the projected Operating Expenses for the
Project and Tenant's pro rata share of such projected Operating Expenses prior
to the commencement of each calendar year during the Term and shall notify
Tenant in writing of such estimate. The amount of Additional Rent specified in
such notification shall be paid by Tenant to Landlord in equal monthly
installments in advance on the first day of each month of such ensuing calendar
year, at the same time and in the same manner as Base Rent. Landlord shall,
within three (3) months following the close of each calendar year during the
Term, provide Tenant with a statement of the actual Operating Expenses for such
calendar year, in reasonable detail. If such statement shows an amount owing by
Tenant for the actual Operating Expenses during a calendar year that is less
than the sum of the monthly payments of Additional Rent made by Tenant for
projected Operating Expenses for such calendar year, the statement shall be
accompanied by a refund to Tenant of the overpayment. If such statement shows an
amount owing by Tenant for actual Operating Expenses during a calendar year
which is more than the sum of the monthly payments of Additional Rent made by
Tenant for projected Operating Expenses for such calendar year, Tenant shall pay
such deficiency to Landlord within sixty (60) days after receipt of such
statement. If the Term shall begin on a day other than January 1 or shall end on
a day other than December 31, the amount of any Additional Rent for Operating
Expenses payable by Tenant applicable to the year in which the Term begins or
ends, respectively, shall be prorated on the ratio that the actual number of
days of the Term and such year bears to 365. Landlord may invoice Tenant for
Tenant's pro rata share of actual Operating Expenses for the calendar year in
which the Term ends (if such amount is more than the sum of the monthly payments
of Additional Rent for projected Operating Expenses made by Tenant in such
calendar year) within thirty (30) days prior to the end of the
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Term or at any time thereafter. Notwithstanding any provision of this Lease to
the contrary, if occupancy of the Building at any time during the Term is less
than one hundred percent (100%), then actual variable Operating Expenses for the
Building for such calendar year shall be increased ("grossed up") to that amount
of Operating Expenses that, using reasonable estimates, would normally be
expected to be incurred during such calendar year if the Building was one
hundred percent (100%) occupied during such calendar year, as determined under
generally accepted accounting principles consistently applied. The term "grossed
up" as used in this Section shall mean and refer to the method of calculating
such variable Operating Expenses which is designed to reasonably estimate what
would be the cost of providing a variable Operating Expense service to the
rentable areas of the Building receiving such service. The gross-up treatment
shall be applied only with respect to the variable Operating Expenses, which are
those component expenses that are affected by variations in occupancy levels
arising from services provided to space in the Building being occupied by
tenants, in order to equitably allocate such variable Operating Expenses to the
tenants receiving the benefit thereof.
(b) DEFINITION OF "OPERATING EXPENSES". The term "Operating Expenses"
includes all reasonable costs and expenses incurred with respect to the
maintenance and operation of the Building or Project (determined in accordance
with generally accepted accounting principles consistently applied), such as,
but not limited to, Building services, maintenance and repair costs, electricity
(exclusive of any charges made pursuant to Section 3(b) above), fuel, water,
sewer, gas and other utility charges, security, window washing, janitorial
services, trash and snow removal, landscaping, pest control, reasonable
management fees (not to exceed 5% of gross revenues), wages and fringe benefits
payable to employees of Landlord or of any management agent of Landlord whose
duties are directly connected with the operation and maintenance of the
Building, all services, supplies, repairs, replacements or other expenses for
maintaining and operating the Building, including, but not limited to lobby and
other common use areas, vehicular and pedestrian traffic areas and plaza areas;
all real property taxes (calculated utilizing the maximum discountable rate
irrespective of when actually paid) and installments of special assessments,
including special assessments due to recorded covenants or restrictions, if any,
which accrue against the Building during the Term, any and all reasonable costs
and expenses incurred by Landlord in seeking a reduction of any such taxes or
assessments, and all insurance premiums Landlord is required to pay or deems
necessary to pay, including public liability insurance, rent loss insurance, and
contractual liability insurance, with respect to the Building; the costs,
including interest, amortized over its useful life, of any capital improvement
made to the Building by or on behalf of Landlord after the date of this Lease
which is required under any governmental law or regulation that was not
applicable to the Building at the time of its construction, and of the
acquisition and installation of any device or equipment designed and reasonably
expected to reduce Operating Expenses or to improve the operating efficiency of
any system within the Building. The term "Operating Expenses" does not include
any depreciation allowance or expense, the cost of restoration occasioned by
casualty, income or franchise taxes of Landlord, expenses incurred in leasing to
or procuring of Tenants, leasing commissions or expenses for the renovating of
space for new Tenants.
(c) TENANT'S PRO RATA SHARE. Tenant's pro rata share of Operating
Expenses shall mean the proportion that the rentable square footage in the
Premises bears to the total rentable square footage of the Building.
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5. LATE PAYMENT CHARGE. Other remedies for nonpayment of Rent
notwithstanding, if any payment of Base Rent or Additional Rent is not received
by Landlord on or before the fifth (5th) day of the month for which such payment
of Rent is due, or if any other payment due Landlord by Tenant is not received
by Landlord on or before the tenth (10th) day of the month next following the
month in which Tenant is invoiced, a late payment charge of five percent (5%) of
such amount for each and every thirty (30) day period that said amount remains
unpaid (but in no event shall the amount of such late charge exceed an amount
based upon the highest legally permissible rate chargeable at any time by
Landlord under the circumstances) shall become due and payable in addition to
such amounts owed under this Lease. Should Tenant make a partial payment of past
due amounts, the amount of such partial payment shall be applied first to reduce
all accrued and unpaid late charges, in inverse order of their maturity.
6. TENANT ACCEPTANCE. Except as otherwise provided herein, Tenant shall
be deemed to have accepted the Premises from Landlord pursuant to this Lease on
an "as-is" basis, and each party acknowledges that, except as specifically
provided herein, Landlord has made, makes and shall make no representations or
warranties with respect to the Premises, express or implied. Tenant acknowledges
that Tenant has had the full and complete opportunity to inspect the Premises
(and to have engineering and other inspection reports prepared by professionals
with respect to the Premises). Without limiting the generality of the foregoing,
Tenant acknowledges and agrees that Landlord, except as specifically provided
herein, has made, makes and shall make (i) no representation or warranty of
tenantability or habitability with respect to the Premises, (ii) no
representation or warranty of fitness with respect to any personal property
contained therein, (iii) and no representation or warranty with respect to the
physical condition of the Premises or the operating order or condition of any
fixtures, equipment or systems of the Premises, save and except that Landlord
does represent and warrant to Tenant that all Building systems and equipment,
including HVAC (excluding, however, the Supplemental Air-Conditioning System, as
hereinafter defined) and all water and utility systems, and the roof and
structure of the Building and its parking areas are now and will on the
Commencement Date be in good working order and condition. Tenant agrees that,
except for the representations specifically made herein, Tenant is not relying
upon any representations or warranties of Landlord with respect to the
tenantability, habitability, fitness, physical condition or operating order of
the Premises or any of the personal property or fixtures, equipment or systems
contained therein.
7. SECURITY DEPOSIT. Tenant will deposit with Landlord, upon execution,
a check in the amount of $20,000.00 as security deposit.
8. USAGE. Tenant warrants and represents to Landlord that the Premises
shall be used and occupied only for the purpose of general offices (including
conference and computer facilities, employee kitchen and related facilities) and
for no other purpose.
9. BUILDING SERVICES. During the Term of this Lease, Landlord agrees to
operate and maintain the Building in a manner similar to and in accordance with
a standard of comparable buildings in the Boca Raton, Florida market area
("Comparable Buildings") and to provide to Tenant the following services, which
include, but are not limited to:
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(a) General cleaning and janitorial service required as a result of
normal, prudent use of the Premises in accordance with EXHIBIT C attached hereto
and made a part hereof and only on Mondays through Fridays, inclusive, with New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day (herein collectively called the "Holidays") excepted;
(b) Heating, ventilating and air-conditioning service daily on Mondays
through Fridays, inclusive, with Holidays excepted, from 8:00 A.M. to 6:00 P.M.
and on Saturdays, if not a Holiday, from 8:00 A.M. to 1:00 P.M. The range of
temperatures maintained in the Building shall be comparable to those maintained
in other like-kind office buildings in the City of Boca Raton, Florida as the
same may be regulated by governmental authority. Should Tenant desire either
heating or air conditioning at times when such services are not furnished by
Landlord under the terms of this Lease, such shall be provided upon not less
than twenty-four (24) hours prior notice to Landlord during Landlord's normal
business hours, and Tenant shall pay to Landlord actual costs for such services
(current charges presently are estimated at $35/hour for each 25,000 rentable
square feet or portion thereof within an individual pod). Tenant may, in
accordance with Section 12 hereof, install supplemental air conditioning systems
in the Premises at the sole cost and expense of Tenant, which systems shall be
separately metered (the installation cost of such meter to be Tenant's expense)
and all utility costs associated with such systems shall be Tenant's
responsibility;
(c) Electric current for lighting and reasonable facilities for
furnishing usual and normal electric power for office space. Tenant shall not,
without Landlord's prior written consent, use or install any equipment (i) which
consumes more than 30 Amps and 208 volts or (ii) uses electric current in excess
of the capacity of the feeders or lines to the Building or the risers or wiring
installation of the Building or the Premises;
(d) On-site property management services;
(e) Installation, as an Operating Expense subject to reimbursement as
provided in Section 4 hereof, of all replacement fluorescent lamps, light bulbs
and ballasts as needed in the Premises (including any non-standard, special or
upgraded lamps and ballasts within the Premises, provided Tenant shall pay to
Landlord upon demand as Additional Rent the incremental difference in the cost
of such non-standard lamps and ballasts over the building standard lights and
ballasts; and
(f) Passenger and freight elevators serving each of the floors of the
Premises in common with other tenants.
Failure by Landlord to any extent to furnish these defined services or any other
services not enumerated or any cessation thereof, shall not render Landlord
liable in any respect for damages to either person or property, give rise to any
abatement of rent or relieve Tenant from fulfillment of any covenant contained
in this Lease. Should any of the equipment or machinery break down, or for any
cause cease to function properly, Landlord shall use reasonable diligence to
repair the same promptly, but Tenant shall have no claim for abatement or rebate
of rent on account of any interruption in service occasioned from the repairs,
except as specifically provided below.
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10. INTENTIONALLY OMITTED.
11. REPAIRS AND MAINTENANCE. (a) TENANT'S REPAIRS AND MAINTENANCE.
Tenant shall, at its own cost and expense, maintain the Premises in condition
existing on the date of this Lease, including all necessary repairs and
replacements. Tenant shall further, at its own costs and expense, repair or
restore any damage or injury to all or any part of the Building caused by Tenant
or Tenant's agents, employees, invitees, licensees, visitors or contractors,
including but not limited to any repairs or replacements necessitated by (i) the
construction or installation of improvements to the Premises by or on behalf of
Tenant, (ii) the installation, use or operation of Tenant's property, or (iii)
the moving of any property into or out of the Premises; provided, however, if
Tenant fails to make the repairs or replacements promptly, Landlord may, at its
option upon ten (10) business days written notice, make the repairs or
replacements and the costs of such repairs or replacements shall be charged to
Tenant as Additional Rent and shall become due and payable by Tenant with the
monthly installment of Base Rent next due hereunder.
(b) CONDITION AT END OF TERM. On the Expiration Date, Tenant shall
surrender the Premises to Landlord in the condition in which Premises were
originally received from Landlord, except for ordinary wear and tear and damage
by casualty or taking not required to be repaired by Tenant hereunder. So long
as Tenant is not in default hereunder, Tenant may remove from the Premises on or
prior to the Expiration Date all property situated therein which is not owned by
Landlord, and Tenant shall, on or prior to the Expiration Date, remove all of
Tenant's office equipment, trade fixtures and moveable furnishings from the
Premises. Property not so removed shall become the property of Landlord, and
Landlord may at Tenant's expense remove such property from the Premises and
dispose thereof without any liability of Landlord to Tenant.
(c) LANDLORD'S REPAIRS AND MAINTENANCE. Landlord shall during the Term
maintain the Building in a manner comparable to other Comparable Buildings,
including, but not limited to, public areas of the Building, landscaped areas of
the Land and Building, elevators, stairs, common restrooms and main lobby area
for the Building, heating, ventilating and air conditioning systems (exclusive
of any Tenant supplemental air conditioning systems that Tenant shall install),
other mechanical systems, plumbing, life safety systems, electrical systems and
the roof and structure.
12. ALTERATIONS AND IMPROVEMENTS. (a) No alteration, addition,
improvement or installation (hereinafter collectively "Alterations" or
individually referred to as an "Alteration") to the Premises shall be made or
permitted to be made by Tenant, except as provided in Section 12(b) below,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. As a condition of giving any consent under
this Section 12, Landlord may require, among other things, that Tenant (a)
deliver to Landlord and obtain Landlord's approval of final plans and
specifications for the Alterations, (b) obtain Landlord's approval of all
contractors and subcontractors performing Alterations, (c) obtain all permits,
approvals and certificates required by governmental or quasi-governmental
bodies, and upon completion, certificates of final approval and shall deliver
promptly duplicates of all such governmental permits, approvals and certificates
to Landlord, (d) carry and cause all contractors and subcontractors to carry,
worker's compensation, general liability, personal and property damage
insurance, (e) if notice is given by Landlord to Tenant concurrently with the
delivery of
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Landlord's approval of any Alteration that Landlord will require the removal of
an Alteration at the expiration or earlier termination of the term, Landlord
shall have the right to require Tenant, at its sole cost and expense, to remove
any "Non-Standard" (hereinafter defined) Alteration, at the expiration or
earlier termination of the Term, and (f) provide security reasonably
satisfactory to Landlord in order to insure that the Premises and Building shall
be kept free from mechanics' or materialmens' liens and that all approved
Alterations will be fully paid for. For purposes of this Section 12(a), a
"Non-Standard" Alteration shall be any Alteration (y) that shall in Landlord's
reasonable opinion require demolition costs on a per square foot basis
materially greater than the costs on a per square foot basis to demolish the
tenant improvements initially installed in the Premises and approved by Landlord
and (z) that is of a nature not generally found in comparable office space at
the time of the request for approval.
Notwithstanding the foregoing provisions of this Section 12(a), Tenant shall
have no right without Landlord's prior written consent, to make any Alterations
which would (i) adversely affect the load bearing structural components and
structural soundness of the Building, (ii) adversely affect the central
environmental systems (excluding ventilation ducts, diffusers and returns),
(iii) adversely affect the electrical, plumbing or other utility systems of the
Building or (iv) adversely affect the roofing systems, window glass, window
gaskets or glazing.
(b) Notwithstanding the foregoing, Tenant may, without Landlord's
consent, make Alterations that are non-structural in nature and do not adversely
affect the Building mechanical, plumbing or electrical systems; provided (i)
Tenant shall give Landlord fifteen (15) days advance notice of such Alterations
which notice shall include a description of such Alterations; (ii) all such
Alterations shall be installed or constructed in accordance with all laws; (iii)
Tenant shall obtain all necessary permits required by governmental or
quasi-governmental bodies; (iv) all contractors shall be approved by Landlord,
such approval not to be unreasonably withheld or delayed; (v) Tenant shall
deliver to Landlord upon completion thereof as-built plans therefor; (vi) if the
Alteration is a Non-Standard Alteration and if notice is given by Landlord to
Tenant within said fifteen (15) day period that Landlord requires the removal of
such Non-Standard Alteration at the expiration or earlier termination of the
Term; then Tenant shall, at its sole cost and expense, remove any Non-Standard
Alteration at the expiration or earlier termination of the Term; and (vii)
Tenant shall carry and cause its contractors to carry worker's compensation,
general liability, personal and property damage insurance.
(c) Notwithstanding any provision in this Section 12 or otherwise in
this Lease to the contrary, Tenant shall not make any Alteration that shall
affect the facade or exterior face of the Building or otherwise affect the
appearance of the Building from the exterior of the Building in any respect.
Landlord reserves the right to unreasonably withhold its consent to any such
Alteration in Landlord's sole and absolute discretion.
(d) All Alterations which may be made to the Premises, shall become the
property of Landlord and remain and be surrendered with the Premises. Tenant
agrees to repair any damage to the Premises caused by or in connection with the
removal of any articles of personal property, business or trade fixtures,
including without limitation thereto, repairing the floor and patching and
painting the walls where damaged.
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(e) Landlord agrees to provide to Tenant, a build-out allowance equal
to $12.50 per RSF or $187,500 to be used toward the design and construction of
the Premises. Payment of such allowance will be made within thirty (30) days of
receipt of invoices from Tenant along with the appropriate lien waivers
certifying that such work is complete and free of liens. Landlord agrees to make
periodic payments (on a monthly basis) to assist Tenant in payment of build-out
costs. In the event Tenant does not utilize the entire build-out allowance, then
Landlord will agree to apply the unused portion as rental abatement for Base
Rent.
13. STANDARDS FOR WORK. (a) Whenever in this Lease Landlord or Tenant
is permitted or required to maintain and repair, or make additions, alterations,
substitutions or replacements, or reconstruct or restore the Building or the
Premises, such party shall cause such work (the "Work") to be done and completed
in a good, substantial and workmanlike manner, free from faults and defects, and
in compliance with all legal requirements, and shall utilize only new
first-class materials and supplies. The party performing such Work shall be
solely responsible for construction means, methods, techniques, sequences and
procedures, and for coordinating all activities related to the Work, and the
other party shall have no duty or obligation to inspect the Work, but shall have
the right to do so.
(b) Whenever Landlord or Tenant is required to perform any Work upon
the Building or the Premises, such party shall promptly commence the Work and,
once the Work is commenced, diligently and continually pursue the Work and
complete the Work within a reasonable time. The party performing such Work shall
supervise and direct the Work utilizing its best efforts and reasonable care,
and shall assign such qualified personnel to the Work as may be necessary to
cause the Work to be completed in an expeditious fashion.
(c) The party performing such Work shall (i) provide and pay for all
labor, materials, goods, supplies, equipment, appliances, tools, construction
equipment and machinery and other facilities and services necessary for the
proper execution and completion of the Work; (ii) promptly pay when due all
costs and expenses incurred in connection with the Work; (iii) pay all sales,
consumer, use and similar taxes required by law in connection with the Work;
(iv) secure and pay for all permits, fees and licenses necessary for the
performance of the Work; and (v) at all times maintain the Premises and the
Project free and clear from any and all liens, claims, security interests and
encumbrances arising from or in connection with the Work, including, without
limitation, liens for materials delivered, supplied or furnished, or for
services or labor performed or rendered. All materials, supplies, goods,
appliances and equipment incorporated in the Work shall be free from any liens,
security interests or title retention arrangements, other than the lien or
security interest (if any) of the holder of any Mortgage placed upon the
Premises by Landlord. However, nothing contained in this Section is intended to
restrict or affect any right the party performing such Work may otherwise have
under this Lease for reimbursement of any costs or expenses incurred in
connection with such Work.
(d) The party performing such Work shall (i) be responsible for the
acts and omissions of all of its employees and all other persons performing any
of the Work; (ii) be responsible for initiating, maintaining and supervising all
necessary safety precautions and programs in connection with the Work; (iii)
take all precautions for the safety of, and provide all reasonable protection to
prevent damage, injury or loss to, the Work, all persons performing the Work,
all other persons who may be involved in or affected by the Work, all materials
and
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equipment to be incorporated in the Work and all other property in the Building
or on the land or adjacent thereto; (iv) purchase and maintain in full force and
effect, and cause its contractors and subcontractors to purchase and maintain in
full force and effect, such insurance (if any) in addition to that otherwise
required of such party under this Lease as may be necessary to protect such
party from claims under worker's compensation acts and other employee benefit
acts, from claims for damages because of bodily injury, including death, and
from claims for damage to property which arise out of performance of the Work.
Such additional insurance policies, if any, shall meet the requirements set
forth elsewhere herein with respect to the insurance policies otherwise required
to be obtained and maintained by such party under this Lease. The party
performing such Work shall pay and shall indemnify and save the other party and
its officers, employees and agents harmless from all liabilities, damages,
losses, costs, expenses, causes of action, suits, claims, demands and judgments
of any nature arising out of, by reason of or in connection with the Work.
14. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's
expense, shall comply with all laws, ordinances, orders, rules and regulations
of state, federal, county, municipal or other agencies or bodies having
jurisdiction relating to the Premises. Tenant will comply with the Rules and
Regulations adopted by Landlord which are set forth on EXHIBIT D, attached
hereto and hereby made a part hereof. Landlord shall have the right at all times
to change the Rules and Regulations in any reasonable manner as Landlord may
deem necessary or advisable. All changes and amendments in the Rules and
Regulations will be sent by Landlord to Tenant in writing and shall thereafter
be carried out and observed by Tenant. Landlord shall not enforce the Rules and
Regulations in a discriminatory manner against Tenant. Landlord shall comply
with all laws, ordinances, orders, rules and regulations of state, federal,
county, municipal or other agencies or bodies having jurisdiction relating to
the Building other than the Premises and portions of the Project leased to other
tenants.
15. CONDEMNATION. (a) SUBSTANTIAL TAKING. If, during the Term, all or a
substantial part of the Premises is permanently taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by purchase or exchange in lieu thereof, and the
taking would prevent or materially interfere with the use of the Premises for
the purpose for which they are then being used, the Term shall terminate and the
Rent shall be abated during the otherwise unexpired portion of the Term
effective on the date physical possession of the condemned property is taken by
the condemning authority. The determination of whether such taking would prevent
or materially interfere with the use of the Premises shall be made by Landlord,
however Landlord shall act reasonably in making such determination.
LESS THAN SUBSTANTIAL TAKING. In the event a portion of the Premises
shall be taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain or by purchase or
exchange in lieu thereof, and the Term is not terminated as provided in
subsection (a) above, Landlord may, at Landlord's option and at Landlord's
expense, restore and reconstruct the Building and other improvements of which
the Premises are a part to the extent necessary to make them reasonably
tenantable, and the Rent for the remainder of the Term shall be abated to such
extent as may be fair and reasonable considering all the circumstances.
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16. FIRE AND CASUALTY. (a) SUBSTANTIAL DAMAGE. If the Premises should
be totally destroyed by fire or other casualty, or if the Premises should be so
damaged such that the rebuilding cannot reasonably be completed within one
hundred and eighty (180) days after the date of written notification by Tenant
to Landlord of the destruction, either Landlord or Tenant may terminate this
Lease and the Rent shall be abated for the otherwise unexpired portion of the
Term, effective as of the date of such casualty. The determination of whether
such rebuilding can reasonably be completed within such period shall be made by
Landlord within thirty (30) days after Landlord becomes aware of or receives
notice (whichever is earlier) of such casualty, however, Landlord shall act
reasonably in making such determination. If Landlord undertakes the rebuilding
of the Premises, the rent shall xxxxx during the time of rebuilding.
(b) LESS THAN SUBSTANTIAL DAMAGE. If the Premises should be partially
damaged by fire or other casualty, and the rebuilding or repairs can reasonably
be completed within one hundred and eighty (180) days after written notification
by Tenant to Landlord of the damage, or if Landlord or Tenant does not elect to
terminate the Lease as set forth in Section 16(a) above, Landlord shall proceed
with reasonable diligence to rebuild or repair the Building or other
improvements of which the Premises are a part to substantially the same
condition as existed prior to the damage. If the Premises are to be so rebuilt
or repaired and are untenantable in whole or in part following the damage, and
the damage was not caused or contributed to by the willful misconduct of Tenant,
its agents, employees, invitees, visitors, contractors, or those for whom Tenant
is responsible, the Rent payable hereunder during the period for which the
Premises are untenantable shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. In the event that Landlord fails to complete
the necessary repairs or rebuilding within one hundred and eighty (180) days
from the date of written notification by Tenant to Landlord of the damage, with
due allowance for any force majeure, Tenant may at its option terminate this
Lease effective as of the end of such period for repair or rebuilding, by
delivering written notice of such termination to Landlord.
17. INSURANCE. (a) LANDLORD'S INSURANCE. Landlord agrees to maintain
during the Term the following insurance (the cost of which is to be included as
an Operating Expense): (i) "all risk" coverage insurance on the Building and the
other improvements on the Property, exclusive of any improvements constructed
within the Premises by or on behalf of Tenant, in an amount equal to the full
replacement cost thereof; and (ii) a policy or policies of worker's compensation
and comprehensive general liability insurance, including personal injury and
property damage in the amount of One Million and No/100 Dollars ($1,000,000.00)
for property damage and One Million and No/100 Dollars ($1,000,000.00) per
occurrence for personal injuries or deaths of persons occurring in or about the
Property. Tenant shall not permit the Premises to be used in any way which
would, in the opinion of Landlord, be extra hazardous on account of fire or
other hazard or casualty or which would otherwise and in other ways increase the
premiums for or render void any insurance relating to the Building or the
contents thereof or any liability of Landlord. If Tenant's specific use and
occupancy of the Premises causes any increase in any insurance premiums paid by
Landlord with respect to the Building, or if Tenant abandons the Premises and
thereby causes an increase in such premiums, then Tenant shall pay the Landlord
upon demand as Additional Rent the amount of such increase. Landlord shall not
be obligated in any way or manner to insure any personal property (including but
not limited to any furniture, machinery, equipment, goods or supplies) of Tenant
or which Tenant may have
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upon or within the Premises or any fixtures installed by or paid for by Tenant
upon or within the Premises or any additional improvements which Tenant may
construct on the Premises.
(b) TENANT'S INSURANCE. Tenant shall, at its sole expense, at all times
during the Term of this Lease maintain in effect a policy or policies of
insurance (i) covering its personal property located in the Premises and tenant
improvements to the Premises paid for and installed by Tenant and Landlord other
than as set forth in (a) above, providing protection against any peril included
under insurance practices within the classification "all risk" and to the full
insurable value of such personal property and tenant improvements and (ii)
comprehensive public liability insurance with respect to the Premises and the
conduct or operation of Tenant's business therein, with limits of not less than
One Million and No/100 Dollars ($1,000,000.00) for death or bodily injury to any
one or more persons in a single occurrence and One Million and No/100 Dollars
($1,000,000.00) for property damage. Tenant hereby waives any and all rights of
recovery against Landlord for any insured loss or liability occurring to
Tenant's personal property and tenant improvements and the aforesaid policy or
policies shall contain appropriate provisions recognizing this release by Tenant
and waiving all rights of subrogation by the insurance carrier. Except for
Landlord's or Landlord's agents', employees', invitees', licensees' or
contractors' negligence or willful misconduct, Tenant hereby indemnifies and
holds Landlord harmless from all claims, demands, actions, damages, loss,
liabilities, judgments, costs and expenses, including, without limitation,
attorneys' fees and costs which are suffered by, recovered from or asserted
against Landlord and arise from or in connection with the use or occupancy of
the Premises and/or any accident, injury or damage occurring in the Premises.
Tenant shall maintain a policy or policies of insurance with the premiums paid
in advance issued by and binding upon a solvent insurance company, authorized to
transact business in Florida, insuring all personal property of tenant upon or
within the Premises in an amount equal to the full replacement cost of such
property. Tenant shall deliver certificates of such insurance to Landlord on or
before the Commencement Date, and thereafter from time to time upon request.
18. WAIVER OF SUBROGATION. Landlord and Tenant, to the fullest extent
permitted by law, each hereby waive all claims, causes of action and rights of
recovery against the other for and hereby release the other from liability for,
loss or damage to the extent such loss or damage is insured by valid and
collectible insurance in effect at* the time of such loss or damage.
19. LIABILITY AND INDEMNIFICATION. Landlord shall not be liable to
Tenant's employees, agents, invitees, licensees, contractors or visitors, or to
any other person, for any injury to person or damage to property on or about the
Premises caused by the negligence or misconduct of Tenant, its agents, servants,
or employees or of any other person entering upon the Premises under express or
implied invitation by Tenant. Except for Landlord's negligence or willful
misconduct, Tenant agrees to indemnify and hold harmless Landlord of and from
any loss, attorneys' fees, expenses or claims arising out of (i) any such damage
or injury, (ii) any and all defaults by Tenant hereunder, or otherwise by reason
of or resulting from the use or occupancy of the Premises.
Except for Tenant's negligence or willful misconduct, Landlord agrees to
indemnify and hold harmless Tenant from any loss, attorneys' fees, expenses or
claims arising out of Landlord's negligence or willful misconduct.
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20. QUIET ENJOYMENT. Landlord warrants that it has full right to
execute and to perform this Lease and that Tenant, upon payment in full of the
required Rent and full performance of the terms, conditions, covenants and
agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises during the Term, subject only to the matters set forth in
Section 21 below. Landlord shall not be responsible for the acts or omissions of
any other Tenant, lessee or third party that may interfere with Tenant's use and
enjoyment of the Premises.
21. LANDLORD'S RIGHT OF ENTRY. With reasonable notice (except in the
case of an emergency), Landlord or its authorized agent shall at any and all
reasonable times have the right to enter the Premises to inspect the same, to
supply janitorial service or any other service to be provided by Landlord, to
show the Premises to perspective purchasers or tenants (only during the last
twelve (12) months of the Term with respect to prospective tenants), and to
alter, improve or repair the Premises or any other portion of the Building.
Tenant shall make available a representative of Tenant during all reasonable
time periods (except in an emergency) during which Landlord shall access the
Premises. Except for Landlord's negligence or willful misconduct, Tenant hereby
waives any claim for damages for injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or use of the Premises, and any other
loss occasioned thereby. Landlord agrees to use good faith efforts to minimize
disruption to Tenant's business during any periods when Landlord requires access
to the Premises. Landlord shall at all times have and retain a key with which to
unlock all of the doors in, upon and about the Premises. Tenant shall not change
Landlord's lock system or in any other manner prohibit Landlord from entering
the Premises. Landlord shall have the right to use any and all means which
Landlord may deem proper to open any door in an emergency without liability
therefore.
22. ASSIGNMENT OR SUBLET. (a) Tenant shall not assign, in whole or in
part, this Lease, or allow it to be assigned, in whole or in part, by operation
of law or otherwise (including without limitation by transfer of a majority
interest in a partnership or a majority interest of stock, merger or
dissolution, which transfer of majority interest, merger or dissolution shall be
deemed an assignment) or mortgage or pledge the same, or sublet the Premises in
whole or in part, without the prior written consent of Landlord (which consent
shall not be unreasonably withheld or delayed) and in no event shall any such
assignment or sublease release Tenant or any guarantor from any obligation or
liability hereunder. The foregoing provision of this Section 22 shall not apply
to restrict any transfer of stock whenever Tenant is a corporation the
outstanding stock of which is listed on a recognized national stock exchange or
the National Association of Securities Dealers National Market System or in
connection with an initial public offering or a private placement of stock
pursuant to Section 3(a)(11), (4)(2) or Regulations D and S of the Securities
Act of 1933, as amended. No assignee or sublessee of the Premises or any portion
thereof may assign or sublet the Premises or any portion thereof.
(b) Any assignment or sublease made by Tenant without Landlord's
consent when Landlord's consent is required pursuant to the terms of this Lease
shall be void, and, at Landlord's option, constitute a default under the terms
and conditions of this Lease.
(c) Consent by Landlord to any assignment, transfer or subletting to
any party, shall not be construed as a waiver or a release of Tenant from the
terms of any covenant or obligation under this Lease, nor shall its consent to
one assignment, transfer or subletting to
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another person, partnership, firm or corporation be deemed to be a consent to
any subsequent assignment, transfer or subletting to another person,
partnership, firm or corporation.
(d) In the case of an approved subletting, Landlord shall have the
right to any and all sums or economic consideration in excess of the Base Rent
and Additional Rent payable hereunder from such subletting reasonably
attributable to the sublet portion of the Premises, as and when received. In the
case of an assignment of this Lease, Landlord shall have the right to any and
all sums or other economic consideration in excess of the Base Rent and
Additional Rent reasonably attributable to such assignment of this Lease, as and
when received.
(e) Notwithstanding the above provisions of this Section 22, Tenant
shall have the right to sublet or assign all or part of the Premises without the
prior consent of Landlord to: (i) any person, corporation, partnership or other
entity which shall control, be under the control of, or be under common control
with, Tenant and/or (ii) any corporation, partnership or other business entity
resulting from the merger, consolidation or other business combination with
Tenant to any person or entity that acquires all or substantially all of
Tenant's assets as a going concern of the business that is being conducted in
the Premises, as long as the assignee or sublessee assumes in full the
obligations of Tenant under this Lease, provided, however, that (1) such
assignee or subtenant must be a bona fide entity, (2) such assignee's or
subtenant's proposed use of the Premises must be consistent with the uses
permitted under this Lease, (3) the character, reputation, and business of the
proposed assignee or sublessee is consistent with the tenants then in the
Building, including Tenant and (4) Tenant shall nonetheless be required to
provide Landlord with at least fifteen (15) business days advance written notice
of any such assignment or subletting including with such notice the following
information, documentation and notice: (aa) the identity of such sublessee or
assignee, (bb) the planned use of the Premises and the business to be conducted
therefrom, and (cc) reasonable documentation to evidence that the proposed
sublessee or assignee shall in fact be an affiliate meeting the qualifications
of this section 22(e). Further, if requested by Landlord, Tenant shall provide
to Landlord such other information as may be reasonably requested by Landlord
during such fifteen (15) business day period to substantiate Tenant's right to
consummate said subleases or assignments as contemplated by this Section 22(e).
For purposes of this Section 22, the term "control" shall mean possession,
direct or indirect, of the power to direct, or cause the direction of, the
management and policies of any person or entity, if through the ownership of at
least twenty percent (20%) of the voting securities, partnership interests or
similar ownership rights. Landlord acknowledges that such information is
confidential information and may not be used, disclosed or acted upon for the
purpose of xxxxxxx xxxxxxx or otherwise in contravention of the Securities Act
of 1933, as amended, or the Exchange Act of 1934.
23. EVENTS OF DEFAULT. Each of the following shall be deemed to be an
Event of Default by Tenant under this Lease: (a) Tenant shall fail to pay any
installment of Base Rent and Additional Rent when due or any other amount
required pursuant to this Lease within five (5) business days after written
notice by Landlord to Tenant that such sum is due and unpaid; provided, however,
that notwithstanding the foregoing, Landlord shall have no obligation to notify
Tenant of the failure to pay any sum due from Tenant under this Lease on more
than two (2) occasions during any twelve (12) month period; (b) Tenant shall
fail to comply with any term, provision or covenant of this Lease, other than
payment of Base Rent, Additional Rent, or any other required amount, and the
failure is not cured within thirty (30) days after written notice
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to Tenant (or if such failure to comply on the part of Tenant would reasonably
require more than thirty (30) days to rectify, unless Tenant commences
rectification within the thirty (30) day notice period and thereafter promptly,
effectively and continuously proceeds with the rectification of the failure to
comply on the part of Tenant and, in all events, cures such failure to comply on
the part of Tenant no later than the time period reasonably required to
effectuate such cure; (c) Tenant shall file a petition for relief or be adjudged
bankrupt or insolvent under the Federal Bankruptcy Act, as amended, U.S.C.A.
Title 11 (entitled "Bankruptcy") Section 101 ET SEQ. as amended, or any similar
law or statute of the United States or any state; or a receiver or trustee shall
be appointed for all or substantially all of the assets of Tenant; or Tenant
shall make a transfer in fraud of creditors or shall make an assignment for the
benefit of creditors and fails to have such receiver or trustee dismissed within
ninety (90) days from the date of such appointment; or (d) Tenant shall do or
permit to be done any act which results in a lien being filed against the
Premises or the Building and fails to remove such lien by payment, bond or
otherwise within twenty (20) business days from receipt of Landlord's notice to
remove.
24. REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of any Event of
Default, Landlord may at its option pursue any one or more of the following
remedies, and any and all other rights or remedies accruing to Landlord by law
or otherwise, without any notice or demand: (a) commence dispossessory
proceedings with or without the termination of this Lease; (b) declare the
entire amount of Rent calculated on the current rate being paid by Tenant, and
other sums which in Landlord's reasonable determination would become due and
payable during the remainder of the Term (including, but not limited to,
increases in Rent pursuant to the terms hereof), discounted to present value by
using a reasonable discount rate selected by Landlord, to be due and payable
immediately. Upon such acceleration of such amounts, Tenant agrees to pay the
same at once, together with all Rent and other amounts theretofore due, at
Landlord's address as provided herein; provided however, that such payment shall
not constitute a penalty or forfeiture but shall constitute liquidated damages
for Tenant's failure to comply with the terms and provisions of this Lease
(Landlord and Tenant agreeing that Landlord's actual damages in such an event
are impossible to ascertain and that the amount set forth above is a reasonable
estimate thereof). Upon making such payment, Tenant shall receive from Landlord
all rents received by Landlord from other tenants renting the Premises during
the Term, provided that the monies to which Tenant shall so become entitled
shall in no event exceed the entire amount actually paid by Tenant to Landlord
pursuant to the preceding sentence, less all of Landlord's costs and expenses
(including, without limitation, reasonable brokerage and attorneys' fees and
expenses) incurred in connection with or in any way related to the reletting of
the Premises. The acceptance of such payment by Landlord shall not constitute a
waiver of rights or remedies to Landlord for any failure of Tenant thereafter
occurring to comply with any term, provision, condition or covenant of this
Lease; (c) commence proceedings against Tenant for all amounts owed by Tenant to
Landlord, whether as Base Rent, Additional Rent, damages or otherwise; (d)
terminate the Term, in which event Tenant shall immediately surrender the
Premises to Landlord and Tenant agrees to pay on demand the amount of all loss
and damage which Landlord may suffer by reason of the termination of the Term
under this subsection or otherwise; (e) with or without terminating this Lease,
relet the Premises on behalf of Tenant and receive directly the rent by reason
of the reletting in which event Tenant agrees to pay Landlord on demand any
deficiency that may arise by reason of any reletting of the Premises and to
reimburse Landlord upon demand for any expenditures made by it for remodeling or
repairing in order to relet the Premises and for all other expenses incurred in
connection with such reletting; Landlord
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shall not be liable for any failure to relet the Premises, in whole or in part,
nor for any failure to collect any rent due from any such reletting; rather,
Tenant shall remain liable for all Rent and for all such expenses; (f) enter
upon and take possession of the Premises, without being liable for prosecution
of any claim for damages or for trespass or other tort; (g) do or cause to be
done whatever Tenant is obligated to do under the terms of this Lease, in which
case Tenant agrees to reimburse Landlord on demand for any and all costs or
expenses which Landlord may thereby incur and Tenant agrees that Landlord shall
not be liable for any damages resulting to Tenant from effecting compliance with
Tenant's obligations under this subsection, whether caused by the negligence of
Landlord or otherwise; or (h) enforce the performance of Tenant's obligations
hereunder by injunction or other equitable relief (which remedy may be exercised
upon any breach or default or any threatened breach or default of Tenant's
obligations hereunder).
25. WAIVER OF DEFAULT OR REMEDY. Tenant understands and acknowledges
that no assent, express or implied, by Landlord to any breach of any one or more
of the terms, covenants or conditions hereof shall be deemed or taken to be a
waiver of any succeeding or other breach, whether of the same or any other term,
covenant or condition hereof.
26. FORCE MAJEURE. Landlord and Tenant (except with respect to the
payment of Base Rent, Additional Rent or any other monetary obligation under
this Lease) shall be excused for the period of any delay and shall not be deemed
in default with respect to the performance of any of the terms, covenants and
conditions of this Lease when prevented from so doing by a cause or causes
beyond the Landlord's or Tenant's (as the case may be) control, which shall
include, without limitation, all labor disputes, governmental regulations or
controls, fire or other casualty, inability to obtain any material or services,
acts of God, or any other cause not within the reasonable control of Landlord or
Tenant (as the case may be).
27. ATTORNEY'S FEES. In the event of any lawsuit or court action
between Landlord and Tenant arising out of or under this Lease or the terms and
conditions stated herein, the prevailing party in such lawsuit or court action
shall be entitled to and shall collect from the non-prevailing party the
reasonable attorney's fees and court costs actually incurred by the prevailing
party with respect to said lawsuit or court action. The prevailing party shall
be deemed to be that party who obtains substantially the same relief sought
whether by compromise, settlement or judgment.
28. HOLDING OVER. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession of the Premises to
Landlord. If Tenant retains possession of the Premises or any part thereof after
such termination, then such holding over shall create a tenancy at sufferance
upon the terms and conditions set forth in this Lease; provided however that the
Base Rent shall, in addition to all other sums which are to be paid by Tenant
hereunder, whether or not as Additional Rent, be equal to one hundred fifty
percent (150%) of the Base Rent being paid to Landlord under this Lease
immediately prior to such termination (prorated for each day Tenant remains in
possession); provided, however, that in the event Landlord has provided Tenant
notice of termination and Tenant retains possession the Base Rent shall be two
hundred percent (200%) of the Base Rent being paid to Landlord under this Lease
immediately prior to such termination (prorated for each day Tenant remains in
possession); and there shall be no renewal of this Lease by operation of law.
The provisions of this Section 28 shall not constitute a waiver of any right of
re-entry as herein set forth or as provided by law; nor shall receipt of any
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rent or other act in apparent affirmance of the tenancy operate as a waiver of
the right to terminate this Lease for a breach of any of the terms, covenants or
obligations herein on Tenant's part to be performed.
29. RIGHTS OF MORTGAGEES AND OTHERS. Tenant accepts this Lease subject
and subordinate to the lien or security title of any recorded mortgage, deed of
trust or deed to secure debt presently existing or hereafter created upon the
Premises and to all existing recorded restrictions, covenants, easements and
agreements with respect to the Building or any part thereof, and all amendments,
modifications and restatements thereof and all replacements and substitutions
therefor. Any provisions of this Lease requiring the approval or consent of
Landlord shall not be deemed to have been unreasonably withheld if any mortgagee
(which shall include the holder of any mortgage, deed of trust or deed to secure
debt) of the Premises or Building or any portion thereof shall refuse or
withhold its approval or consent thereto. Any requirement of Landlord pursuant
to this Lease which is imposed pursuant to the direction of any such mortgagee
shall be deemed to have been reasonably imposed by Landlord if made in good
faith. Landlord agrees to use good faith efforts to obtain a Subordination
Nondisturbance & Attornment Agreement from lender in a form reasonably
satisfactory to Tenant.
30. ESTOPPEL CERTIFICATES. Within ten (10) business days following any
written request which a party may make from time to time (but not more often
that four (4) times in any calendar year), the other party shall execute,
acknowledge and deliver to the requesting party a certificate stating that this
Lease is unmodified and in full effect (or, if there have been modifications,
that this Lease is in full effect as modified, and setting forth such
modifications); the amounts and dates to which Base Rent, Additional Rent and
other sums payable hereunder have been paid; such other reasonable information
pertaining to the Lease as may be requested by Landlord or Tenant, as the case
may be; and either that to the knowledge of the signer of such certificate no
default exists hereunder or specifying each such default of which the signer has
knowledge. Landlord and Tenant intend that any statement delivered pursuant to
this Section 30 may be relied upon by the requesting party and any individual or
entity named by the requesting party in the request therefor.
31. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure
to the benefit of Landlord and Tenant and their respective heirs,
representatives and assigns, subject, however, to the provisions of Section 23
above. It is hereby covenanted and agreed that should Landlord's interest in the
Premises cease to exist for any reason during the Term, then notwithstanding the
happening of such event this Lease nevertheless shall remain unimpaired and in
full force and effect and Tenant hereby agrees to be bound and obligated
hereunder to the then owner of the Premises as landlord provided the new owner
accepts the obligations of landlord hereunder.
32. NOTICE. (a) Except for legal process, which may also be served as
by law provided or as provided below, all notices required or desired to be
given with respect to this Lease shall be in writing and shall be deemed to be
given to and received by the party intended to receive such notice when
delivered by overnight courier; hand delivered or three (3) days after such
notice shall have been deposited, postage prepaid, in the United States mail,
certified, return receipt requested, properly addressed to the addresses
specified below. In the event of a change of address by either party, such party
shall give written notice thereof in accordance with the foregoing.
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Landlord's Address for Notices: Tenant's Address for Notices:
------------------------------ ----------------------------
Fairfax Boca 92, L.P. Medical Staffing Network, Inc.
c/o Flagship Group, Inc. 000 Xxxxxx Xxxx, Xxxxx 000
2300 Xxxxx Xxxxx Xxxxxxx, Xxxxx 00 Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx, XX 00000-0000 Attention: Xxxxx Xxxxxx, CFO
Attention: X. Xxxxx Germany
33. BROKERAGE CLAIMS. Tenant and Landlord hereby warrant and represent
to the other that Tenant or Landlord, as the case may be, has not dealt with any
broker, agent or finder in connection with this Agreement other than CB Xxxxxxx
Xxxxx. Both Landlord and Tenant covenant and agree to hold each other harmless
from and against any and all loss, liability, damage, claim, judgment, cost or
expense (including but not limited to attorneys' fees and expenses and court
costs) that may be incurred or suffered by the other party because of any claim
for any fee, commission or similar compensation with respect to this Agreement,
made by any other broker, agent or finder claiming to have dealt with such
party, whether or not such claim is meritorious. Landlord agrees to pay CB
Xxxxxxx Xxxxx pursuant to a separate agreement.
34. SIGNS. Tenant shall not install, paint, display, inscribe, place or
affix any sign, picture, advertisement, notice, lettering, or direction
(hereinafter collectively called "Signs") on the exterior of the Premises, the
common areas of the Building, the interior surface of glass or any other
location which could be visible from outside of the Premises without first
securing written consent from Landlord therefor. Any Sign permitted by Landlord
shall at all times conform with all municipal ordinances or other laws,
regulations, deed restrictions and protective covenants applicable thereto.
Tenant shall remove all Signs at the expiration or other termination of this
Lease, at Tenant's sole risk and expense, and shall in a good and workmanlike
manner properly repair any damage caused by the installation, existence, or
removal of Tenant's Signs.
35. ENTIRE AGREEMENT, AMENDMENT AND LIMITATION OF WARRANTIES. IT IS
EXPRESSLY AGREED BY TENANT, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF
THIS LEASE, THAT THIS LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC
DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE, AND WERE NO
VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS
NOT INCORPORATED IN WRITING IN THIS LEASE. LANDLORD AND TENANT EXPRESSLY AGREE
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, THERE ARE AND SHALL BE NO
IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR USE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE AND THERE ARE NO
WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE. IT IS
LIKEWISE AGREED THAT THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY BOTH LANDLORD AND TENANT.
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36. LIMITATION OF LIABILITY. Landlord's obligations and liability with
respect to this Lease shall be limited solely to Landlord's interest in the
Building, as such interest is constituted from time to time, and neither
Landlord nor any officer, director, shareholder or partner of Landlord, or of
any partner of Landlord, shall have any personal liability whatsoever with
respect to this Lease.
37. SUBMISSION OF AGREEMENT. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to acquire a
right of entry. This Lease is not binding or effective until execution by and
delivery to both Landlord and Tenant.
38. CORPORATE AUTHORITY. (a) If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant does
hereby represent and warrant that Tenant is a duly organized and validly
existing corporation, that Tenant is qualified to do business in the State in
which the Building is located, that Tenant has full right, power and authority
to enter into this Lease, and that each person signing on behalf of Tenant is
authorized to do so and Tenant shall provide Landlord evidence reasonably
acceptable to Landlord of such authority. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Tenant confirming the
foregoing representations and warranties.
(b) If Landlord executes this Lease as a corporation, each of the
persons executing this Lease on behalf of Landlord does hereby represent and
warrant that Landlord is a duly organized and validly existing corporation, that
Landlord is qualified to do business in the State in which the Building is
located, that Landlord has full right, power and authority to enter into this
Lease, and that each person signing on behalf of Landlord is authorized to do so
and Landlord shall provide Tenant evidence reasonably to Tenant of such
authority. Upon Tenant's request, Landlord shall provide Tenant with evidence
reasonably satisfactory to Tenant confirming the foregoing representations and
warranties.
39. MISCELLANEOUS. The captions appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any provision hereof. If any provision of this
Lease shall ever be held to be invalid or unenforceable in any circumstance or
as to any person, such invalidity or unenforceability shall not affect such
provision in any other circumstance or as to any other person or any other
provision of this Lease. This Lease, or any portion hereof, shall not be
recorded unless both parties hereto agreed to the recording.
40. GOVERNING LAW. This Lease shall be governed and construed in
accordance with the laws of the State in which the Building is located.
41. COUNTERPARTS. This Lease may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall constitute one
agreement, and the signatures of any party to any counterpart shall be deemed to
be a signature to, and may be appended to, any other counterpart.
42. RADON DISCLOSURE. Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over a time. Levels of
radon that exceed federal and state guidelines have been
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found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from the County Public Health Unit.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Lease under seal as of the day and year first above written.
LANDLORD:
FAIRFAX BOCA 92, L.P., a Georgia limited
partnership
By: Fairfax Properties, Inc.
Its duly authorized general partner
Witness: By:
---------------------------- -----------------------------------
Its:
----------------------------------
TENANT:
MEDICAL STAFFING NETWORK, INC.
Witness: By:
---------------------------- ---------------------------------------
Its:
--------------------------------------
[CORPORATE SEAL]
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