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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________________ to __________________
Commission file number: 0-21910
CONTINUCARE CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 59-2716023
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
100 SOUTHEAST SECOND STREET, 36TH FLOOR
MIAMI, FLORIDA 33131
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (305) 350-7515
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which registered
COMMON STOCK, AMERICAN STOCK EXCHANGE
$.0001 PAR VALUE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-KSB. [X]
Registrant's revenues for the fiscal year ended June 30, 1997 were
$13,916,385.
Aggregate market value of the voting stock of the registrant held by
non-affiliates of the registrant at September 15, 1997 (computed by reference to
the last reported sale price of the registrant's Common Stock on the American
Stock Exchange on such date): $49,125,950.
Number of shares outstanding of each of the registrant's classes of
Common Stock at June 30, 1997: 10,888,993 shares of Common Stock, $.0001 par
value per share.
Transactional Small Business Disclosure Format. Yes [ ] No [X]
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PART III
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The executive officers and directors of the Company are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Charles M. Fernandez 35 Chairman of the Board, Chief Executive Officer and President
Phillip Frost, M.D. 61 Vice Chairman of the Board
Susan Tarbe 41 Executive Vice President and General Counsel
Joseph P. Abood 43 Chief Financial Officer and Treasurer
Steven J. Baldwin 49 Senior Vice President of Physical Rehabilitation and
Ancillary Services
Norman B. Gaylis, M.D. 47 Senior Vice President, Chief Operating Officer of Physician
Practice Division
Carlis R. Sabinson 53 Vice President of Compliance and Security
Arthur M. Goldberg 55 Director
Richard B. Frost 48 Director
Mark J. Hanna 48 Director
Elias F. Ghanem, M.D. 58 Director
</TABLE>
CHARLES M. FERNANDEZ co-founded Continucare in February of 1996 and has
been involved in all aspects of its operations since that time serving as its
Chairman of the Board, President and Chief Executive Officer. Since 1985 and
prior to founding Continucare, Mr. Fernandez was the Executive Vice President
and Director of Heftel Broadcasting Corporation ("HBC"), a public company owning
a network of radio stations. At HBC, Mr. Fernandez was involved in the
acquisition of 17 broadcast companies and played an instrumental role in HBC's
growth in revenues from $4 million in 1985 to approximately $65 million in 1995.
Mr. Fernandez has also been an officer of Bally Entertainment Corporation since
January 1996, where he provides advice concerning growth and acquisitions for
Bally in Florida and Latin America.
PHILLIP FROST, M.D. has served as Vice Chairman of Continucare since
September 1996. Dr. Frost has served, since 1987, as Chairman of the Board and
Chief Executive Officer of IVAX Corporation, a Florida corporation ("IVAX"), the
world's largest generic pharmaceutical manufacturer. He served as IVAX's
President from July 1991 until January 1995. Dr. Frost also serves as Vice
Chairman of the Board of Pan American World Airways, Inc. He was the Chairman of
the Department of Dermatology at Mt. Sinai Medical Center of Greater Miami,
Miami Beach, Florida from 1970 to 1992. Dr. Frost was Chairman of the Board of
Directors of Key Pharmaceutical, Inc. from 1972 to 1986. He is Vice Chairman of
the Board of Directors of North American Vaccine, Inc. ("NAV"), and a Director
of American Exploration Company, which is engaged in oil and gas exploration and
production, NaPro BioTherapeutics, Inc., a biopharmaceutical research and
development firm ("NaPro"), Whitman Education Group, which is engaged in
proprietary education ("Whitman") and Northrup
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Grumman. He is a trustee of the University of Miami and a member of the Board of
Governors of the American Stock Exchange. Dr. Frost is the uncle of Richard B.
Frost.
SUSAN TARBE joined Continucare in September 1996 as Executive Vice
President and General Counsel. Prior to joining the Company, Ms. Tarbe was an
Assistant United States Attorney for the Southern District of Florida since
September 1985. During her employment with the United States Attorney's office,
Ms. Tarbe specialized in the area of white-collar criminal offenses, and since
May of 1994 was the Chief of the Economic Crimes Unit. From August 1984 to
August 1985, Ms. Tarbe was a law clerk to the Honorable William M. Hoeveler,
U.S. District Judge for the Southern District of Florida.
JOSEPH P. ABOOD joined Continucare as its Chief Financial Officer and
Treasurer in October 1997. Prior to joining the Company, Mr. Abood practiced as
an independent consultant since 1994 to various HMO's and hospitals. As a
consultant, Mr. Abood analyzed and implemented managed care financial systems.
Simultaneously, in 1995, Mr. Abood served as an adjunct professor in the area of
finance at the University of Miami School of Business. From 1991 to 1994, Mr.
Abood served as Secretary and Treasurer of Ramsay-HMO, Inc. and served as Chief
Financial Officer of its HMO Subsidiary from 1987 to 1994. Mr. Abood is a
certified public accountant and was previously employed by both Ernst & Young
and Deloitte & Touche.
STEVEN J. BALDWIN joined Continucare in September 1997 as Senior Vice
President of Physical Rehabilitation and Ancillary Services. From 1987 to 1995,
Mr. Baldwin served as Chief Operating Officer and later as President of Pro
Rehab, a significant contract service subsidiary of Continental Medical Systems
("CMS") which had acquired Pro Rehab. The sale of Pro Rehab to CMS included a
non-compete for Mr. Baldwin which expired June 30, 1997. From December, 1996 to
prior to joining Continucare, Mr. Baldwin served as a rehab consultant for the
Presbyterian Healthcare System in Charlotte, North Carolina. From 1985 to 1987,
Mr. Baldwin functioned in various senior management positions for Nova Care
during the period it completed its initial public offering. From 1983 to 1984,
Mr. Baldwin conducted speech therapy in a sole practice specializing in
geriatric care.
NORMAN B. GAYLIS, M.D. joined Continucare in April 1997 upon
consummation of the Arthritis Rehab Acquisition. Dr. Gaylis has been a
practicing rheumatologist in Florida for over twenty years. He is Board
certified in rheumatology, and is an Associate Professor of rheumatology at the
University of Miami School of Medicine.
CARLIS R. SABINSON joined Continucare in March 1997 as the Vice
President for Compliance and Security. Prior to joining the Company, Mr.
Sabinson served at the Federal Bureau of Investigation (the "FBI") for over
twenty-six years in various capacities, including serving as the head of the
Economic Crime Program in the FBI's Miami Division and as Supervisor of the
FBI's Civil Rights Program. Mr. Sabinson was also an instructor at the FBI
Academy and FBI liaison to the White House, U.S. Supreme Court, and the U. S.
Department of Justice.
ARTHUR M. GOLDBERG has served as a Director of Continucare since
September 1996. Mr. Goldberg for the past five years has been Chairman of the
Board of Directors, Chief Executive Officer and President of Bally Entertainment
Corp, Chairman of the Board of Directors, President and Chief Executive Officer
of Bally's Casino Holdings, Inc., Chairman of the Board of Directors and Chief
Executive Officer of Bally's Park Place, Inc., GNOC, CORP., Bally's Grand, Inc.
and Bally Total Fitness Holding Corporation. Mr. Goldberg is also the Chairman
of the Board of Directors, President and Chief Executive Officer of Di Giorgio
Corporation and Managing Partner of Arveron Investments L.P. Mr. Goldberg is
also a director of First Union Corporation, a financial services company.
RICHARD B. FROST has served as a Director of Continucare since
September 1996. Mr. Frost has been Chief Executive Officer and Chairman of the
Board of Directors of Frost Hanna Mergers Group, Inc. ("FH") since its formation
in October 1993. Mr. Frost also serves as a director of Pan American World
Airways, Inc. Mr. Frost was the Chief Executive Officer and Chairman of the
Board of Directors of Frost Hanna Acquisition from April 1993 until January
1996. From June 1992 to May 1994, Mr. Frost held similar positions at Frost
Hanna Halpryn until the merger of Sterling Healthcare, Inc. and Sterling
Healthcare Group, Inc. with and into a wholly-owned subsidiary of Frost Hanna
Halpryn (the "Sterling Merger"). From February 1992 through May 1992, Mr. Frost
was Regional
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Director of GKN Securities Corp., a broker-dealer ("GKN"). Mr. Frost was a Vice
President and Branch Manager of Dean Witter Reynolds.
MARK J. HANNA has served as a Director of Continucare since September
1996. Mr. Hanna also serves as a director of Pan American World Airways, Inc.
Mr. Hanna has been the President and a member of the Board of Directors of FH
since its formation on October 1993. Mr. Hanna was the President and a member of
the Board of Directors of Frost Hanna Acquisition from April 1993 until January
1996. Mr. Hanna held similar positions at Frost Hanna Halpryn from June 1992
until the Sterling Merger in May 1994. From February 1992 through May 1992, Mr.
Hanna was a registered representative with GKN. From January 1992 through
February 1992, Mr. Hanna was a registered representative with Barron Chase
Securities, Inc. From September 1990 through January 1992, Mr. Hanna was a
registered representative with Prudential Bache Securities, Inc.
ELIAS F. GHANEM, M.D. was appointed to the Board in December 1996. Dr.
Ghanem has been a practicing physician since 1971. Dr. Ghanem created a health
care system in Nevada in 1989. In 1994, Dr. Ghanem expanded his healthcare
products to include a health maintenance organization and a national healthcare
consulting firm.
The Company's directors do not currently receive any cash compensation
for service on the Board of Directors but may be reimbursed for certain expenses
in connection with attendance at Board of Directors meetings or other meetings
on the Company's behalf. The Company's directors are eligible to receive options
in the Company's Stock Option Plan.
ITEM 10. EXECUTIVE COMPENSATION
SUMMARY OF CASH AND CERTAIN OTHER COMPENSATION
The following table sets forth certain summary information concerning
compensation paid or accrued by the Company and its subsidiaries to or on behalf
of the Company's Chief Executive Officer and each of the most highly compensated
executive officers of the Company whose total annual salary and bonus,
determined as of the end of the fiscal year ended June 30, 1997, exceeded
$100,000 (the "Named Executive Officers"). No executive officer of the Company's
predecessor was paid in excess of $100,000 in fiscal years 1996 or 1995.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
------------
ANNUAL COMPENSATION NO. OF
------------------------------------- OTHER SECURITIES
NAME AND FISCAL ANNUAL UNDERLYING ALL OTHER
PRINCIPAL POSITION YEAR SALARY ($) BONUS ($) COMPENSATION OPTIONS COMPENSATION
------------------ ---- ---------- --------- ------------ ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Charles M. Fernandez,
President and Chief 1997 327,880 20,000 36,360(1) -0- -0-
Executive Officer.....
Susan Tarbe, Executive
Vice President and
General Counsel....... 1997 97,000 40,000(2) -0-(3) 100,000 1,118(4)
</TABLE>
- -------------------
(1) Includes $13,155 in car allowance and $20,205 in insurance benefits.
(2) Includes a signing bonus in the amount of $2,500 and a bonus paid in
September 1997 for services rendered in fiscal 1997.
(3) The total perquisites and other personal benefits provided is less than
10% of the total annual salary and bonus to such officer.
(4) Reflects matching contributions to the Company's 401(k) plan which is
earned during fiscal 1997 but not paid until December 31, 1997.
4
<PAGE> 5
The Company has entered into employment agreements with Charles M.
Fernandez, Susan Tarbe, Norman B. Gaylis and Joseph P. Abood. Mr. Fernandez's
employment agreement is for a term of three years plus one additional year for
each year of service and became effective on September 11, 1996, and provides
for an annual base salary of $350,000 and a bonus of $100,000 payable in 20
equal installments of $5,000 over the first five years of such agreement.
Pursuant to the terms of Mr. Fernandez's employment agreement, he may receive
additional bonuses at the discretion of the Board. Mr. Fernandez is prohibited
from competing with the Company for the duration of his employment agreement and
for a period of two years thereafter unless he is terminated without cause, and
he is additionally prohibited from disclosing confidential information.
Ms. Tarbe's employment agreement, as amended, is for a term of three
years commencing September 23, 1996, and provides for an annual base salary of
$180,000 and a bonus as may be determined by the Chairman and approved by the
Board. Under the terms of Ms. Tarbe's employment agreement, she received an
option to purchase 100,000 shares of the Company at $5.00 per share, of which
20,000 shares vested one year from the date of grant and the remaining 80,000
shares will vest pro rata on the second, third and fourth anniversary of the
dates of grant. The option vested 20% on the first anniversary of the date of
grant and the remaining 80,000 shares vest pro rata on the second, third and
fourth anniversaries of the grant. Upon a change in control of the Company, Ms.
Tarbe is entitled to an acceleration of the remainder of her employment
agreement and automatic vesting of any unvested portion of her aforementioned
warrant. Ms. Tarbe is prohibited from competing with the Company for the
duration of her employment agreement and for a period of ninety days thereafter
unless she is terminated without cause, and she is additionally prohibited from
disclosing confidential information.
Dr. Gaylis's employment agreement is for a period of four years
commencing April, 1997, and provides for an annual base salary of $450,000
renewable at the sole discretion of the Company, subject to adjustment upon
certain conditions. Under the terms of Dr. Gaylis' employment agreement, Dr.
Gaylis is entitled to annual incentive compensation of 50% of earnings before
interest, taxes, depreciation and amortization ("EBITDA") derived from his
professional services at designated offices where EBITDA is in excess of
$365,000. Dr. Gaylis is prohibited from competing with the Company and
soliciting any employee or contractor of the Company for the duration of his
employment agreement and for a period of two years thereafter. Additionally, Dr.
Gaylis is prohibited form disclosing confidential information.
Mr. Abood's employment agreement is for a period of two years
commencing October 20, 1997 and provides for (i) a base salary of $115,000 for
the first year and $120,000 for the second year and (ii) guaranteed bonus
payments of $10,000 annually with additional bonus as may be determined at the
sole discretion of the Chief Executive Officer or the Company's Board of
Directors. Under the terms of Mr. Abood's employment agreement, he received an
option to purchase 50,000 shares of the Company at $6.25 per share, of which
10,000 shares vested upon execution of the employment agreement and 15,000
shares vest on the first and second anniversaries of the date of grant. Mr.
Abood is prohibited from competing with the Company for the duration of his
employment agreement and for a period of six months, unless terminated without
cause, and he is prohibited form soliciting the Company's employees for a period
of one year following termination of employment. Additionally, Mr. Abood is
prohibited from disclosing confidential information.
OPTION GRANTS DURING FISCAL 1997
OPTION GRANTS TABLE. The following table sets forth certain information
concerning grants of stock options made during fiscal 1997 to each of the Named
Executive Officers. The Company did not grant any stock appreciation rights in
fiscal 1997.
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<TABLE>
<CAPTION>
INDIVIDUAL OPTION GRANTS IN 1997
- -----------------------------------------------------------------------------------------------------------------
SHARES OF COMMON
STOCK UNDERLYING % OF TOTAL GRANTED
NAME OPTIONS GRANTED TO EMPLOYEES OPTION PRICE ($) EXPIRATION DATE
---- --------------- ------------ ---------------- ---------------
<S> <C> <C> <C> <C>
Susan Tarbe 100,000 115,000 $5.00 9/23/06
</TABLE>
AGGREGATED OPTION EXERCISES IN 1997 AND YEAR END OPTION VALUES
The following table sets forth information with respect to (i) the
number of unexercised options held by the Names Executive Officers as of June
30, 1997, and (ii) the value as of June 30, 1997 of unexercised in-the-money
options. No options were exercised by any of the Named Executive Officers in
1997.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED OPTIONS IN-THE-MONEY OPTIONS
AT JUNE 30, 1997 AT JUNE 30, 1997 ($)(1)
---------------------------------- ------------------------------------
EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Susan Tarbe 0 100,000 0 87,500
</TABLE>
- -------------------
(1) Market value of shares covered by in-the-money options on June 30,
1997, less option exercise price. Options are in-the-money if the
market value of the shares covered thereby is greater than the option
exercise price.
COMPLIANCE WITH SECTION 16(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's directors and executive officers and persons who own more than ten
percent of the Company's outstanding Common Stock, to file with the Securities
and Exchange Commission (the "SEC") initial reports of ownership and reports of
changes in ownership of Common Stock. Such persons are required by SEC
regulation to furnish the Company with copies of all such reports they file.
To the Company's knowledge, based solely on a review of the copies of
such reports furnished to the Company and written representations that no other
reports were required, all Section 16(a) filing requirements applicable to its
officers, directors and greater than ten percent beneficial owners have been
satisfied.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of September 15,
1997 concerning the beneficial ownership of the Common Stock by (i) each person
known by the Company to be the beneficial owner of more than 5% of the
outstanding Common Stock, (ii) each of the directors of the Company, and (iii)
all executive officers and directors of the Company as a group. All holders
listed below have sole voting power and investment power over the shares
beneficially owned by them, except to the extent such power may be shared with
such person's spouse.
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<TABLE>
<CAPTION>
NAME AND ADDRESS AMOUNT AND NATURE OF PERCENT OF
OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP(1) COMMON STOCK(2)
- ------------------- ----------------------- ---------------
<S> <C> <C>
Charles M. Fernandez 1,616,667(3) 14.85%
100 S.E. Second Street
36th Floor
Miami, FL 33131
Susan Tarbe 20,000(4) *
100 S.E. Second Street
36th Floor
Miami, FL 33131
Arthur M. Goldberg 925,000(5) 8.49%
3930 Howard Hughes Parkway
Las Vegas, Nevada 89109
Dr. Phillip Frost 1,068,333(6) 9.81%
4400 Biscayne Boulevard
Miami, FL 33137
Richard B. Frost 306,000 2.81%
7700 W. Camino Real
Boca Raton, FL 33433
Mark J. Hanna 307,000 2.82%
7700 W. Camino Real
Boca Raton, FL 33433
Douglas Miller 955,666(7) 8.78%
303 Egret Lane
Fort Lauderdale, FL 33327
Barry Goldstein 940,666(7) 8.64%
1900 N.E. 211th Street
North Miami Beach, FL 33179
All directors and executive officers
as a group (10 persons) 4,243,000 38.97%
</TABLE>
- -----------------------------------
* Less than one percent.
(1) For purposes of this table, beneficial ownership is computed pursuant
to Rule 13d-3 under the Exchange Act; the inclusion of shares as
beneficially owned should not be construed as an admission that such
shares are beneficially owned for purposes of the Exchange Act. Under
the rules of the Securities and Exchange Commission, a person is deemed
to be a "beneficial owner" of a security he or she has or shares the
power to vote or direct the voting of such security or the power to
dispose of or direct the disposition of such security. Accordingly,
more than one person may be deemed to be a beneficial owner of the same
security.
(2) Based on 10,888,993 shares outstanding as of September 15, 1997.
(3) All of the shares of Common Stock are owned of record by the Fernandez
Family Limited Partnership.
(4) Represents shares of Common Stock underlying options granted which are
currently exercisable.
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(5) All of the shares of Common Stock owned beneficially by Arthur M.
Goldberg are owned of record by Sailfish Investments, LLC. The members
of Sailfish Investments, LLC are Mr. Goldberg and the Arthur M.
Goldberg Lifetime Trust.
(6) Includes (i) 1,058,333 shares owed beneficially by Frost Nevada Limited
Partnership and (ii) 10,000 shares owned by Dr. Frost individually.
(7) Messrs. Miller and Goldstein have each agreed not to sell more than
15,000 shares of Common Stock during any 30-day period.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During fiscal 1997, the Company was obligated to Charles M. Fernandez
for a note payable in the amount of $599,750 (the "Fernandez Note"). The
Fernandez Note was paid in full in August 1997. The Fernandez Note bore
interest at 10% per annum and matured on February 12, 1998. Accrued interest and
interest expense related to this note was $60,923 as of and for the period ended
June 30, 1997.
During the 1996 and 1997 fiscal years, the Company received management
fees of $344,000 and $878,000, respectively for managing four facilities owned
by a company that is controlled by Douglas Miller and Barry Goldstein, each of
whom own more than 5% of the Company's Common Stock. In addition, during the
1996 and 1997 fiscal years, the actual costs of expenses incurred by such
company for managerial and administrative services performed by it on behalf of
Continucare was $408,000 and $314,000, respectively. Also, at the time of the
Merger with Zanart, Continucare entered into consulting agreements with two
companies controlled by Messrs. Miller and Goldstein. Under such consulting
agreements, Messrs. Miller and Goldstein were paid consulting fees of $188,000
and $199,000, respectively, during fiscal 1997. All of these arrangements were
terminated during the 1997 fiscal year, at which time the Company redeemed an
aggregate of 1,262,000 shares of Common Stock from Messrs. Miller and Goldstein.
8
<PAGE> 9
PART IV
ITEM 13. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) Financial Statements
Reference is made to the Index set forth on page F-1 of this
Annual Report on Form 10-KSB.
(a)(2) Financial Statement Schedules
None
(a)(3) Exhibits
3.1 Restated Articles of Incorporation of Company, as amended. (4)
(Exhibit 3.1)
3.2 Restated Bylaws of Company. (4) (Exhibit 3.2)
4.1 Form of certificate evidencing shares of Common Stock. (4)
(Exhibit 4.1)
10.1 Employment Agreement between the Company and Charles M.
Fernandez dated as of September 11, 1996. (2) (Exhibit 10.36)
10.2 Employment Agreement between the Company and Susan Tarbe dated
as of September 23, 1996.(3)
10.3 Agreement and Plan of Merger by and among Continucare
Corporation, Zanart Entertainment Incorporated and Zanart
Subsidiary, Inc. dated August 9, 1996. (1) (Exhibit 2)
10.4 Stock Purchase Agreement dated April 10, 1997 by and among
Continucare Corporation, Continucare Physician Practice
Management, Inc., AARDS, Inc. and Sheridan Healthcorp. Inc.
(6) (Exhibit 10.1)
10.5 Stock Purchase Agreement dated April 10, 1997 by and among
Continucare Corporation, Continucare Physician Practice
Management, Inc., Rosenbaum, Weitz & Ritter, Inc. and Sheridan
Healthcorp, Inc. (6) (Exhibit 10.2)
10.6 Stock Purchase Agreement dated April 10, 1997 by and among
Continucare Corporation, Continucare Medical Management, Inc.,
Arthritis & Rheumatic Disease Specialties, Inc. and Sheridan
Healthcare, Inc. (6) (Exhibit 10.3)
10.7 Acquisition Facility ($3,000,000), Revolving Credit Facility
($2,000,000) and Security Agreement among Continucare
Corporation, Borrower, and First Union National Bank of
Florida, dated November 14, 1996, as amended on March 4, 1997.
(7) (Exhibit 10.7)
10.8 Lease Agreement, dated as of the 29th day of August 1996,
between Miami Tower Associates Limited Partnership and
Continucare Corporation, as amended (8)
10.9 Physician Employment Agreement, dated as of the 10th day of
April, 1997, by and between Arthritis and Rheumatic Disease
Specialties, Inc. and Norman Gaylis, M.D. (8)
10.10 First Amendment, dated as of the 17th day of September, 1997,
to Employment Agreement, dated August 23, 1996, between the
Company and Susan Tarbe. (8)
10.11 Employment Agreement, dated as of the 20th day of October,
1997, by and between Continucare Corporation and Joseph P.
Abood. (8)
11.1 Computation of Earnings Per Common Share. (7)
16.1 Acknowledgment letter from Arthur Andersen LLP regarding its
dismissal as the Company's independent public accountants. (5)
9
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21.1 Subsidiaries of the Company. (7)
27.1 Financial Data Schedule (7)
Documents incorporated by reference to the indicated exhibit to the following
filings by the Company under the Securities Act of 1933 or the Securities
Exchange Act of 1934
(1) Current Report Form 8-K dated August 9, 1996.
(2) Form 10-KSB filed with the Commission on September 30, 1996.
(3) Form 10-KSB filed with the Commission on October 21, 1996.
(4) Post Effective Amendment No. 1 to the Registration Statement
on SB-2 on Form S-3 Registration Statement filed on October
29, 1996.
(5) Form 8-K/A filed with the Commission on December 3, 1996.
(6) Form 8-K filed with the Commission on April 25, 1997.
(7) Form 10-KSB filed with the Commission on October 29, 1997.
(8) Filed herewith.
(b) There was one report on Form 8-K filed with the SEC in the fourth
quarter of fiscal 1997. The Form 8-K was filed on April 25, 1997 and
amended on Form 8-K/A filed on June 24, 1997 regarding the acquisition
of certain arthritis rehabilitation centers and affiliated physician
practices from Sheridan Healthcorp, Inc.
10
<PAGE> 11
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
CONTINUCARE CORPORATION
By: /s/ Charles M. Fernandez
--------------------------------------
Charles M. Fernandez
Chairman of the Board, Chief Executive
Officer, and President
Dated: October 28, 1997
<PAGE> 12
EXHIBIT INDEX
Exhibit Description
------- -----------
10.8 Lease Agreement, dated as of the 29th day of August 1996,
between Miami Tower Associates Limited Partnership and
Continucare Corporation, as amended.
10.9 Physician Employment Agreement, dated as of the 10th day of
April, 1997, by and between Arthritis and Rheumatic Disease
Specialties, Inc. and Norman Gaylis, M.D.
10.10 First Amendment, dated as of the 17th day of September, 1997,
to Employment Agreement, dated August 23, 1996, between the
Company and Susan Tarbe.
10.11 Employment Agreement, dated as of the 20th day of October, 1997,
by and between Continucare Corporation and Joseph P. Abood.
<PAGE> 1
EXHIBIT 10.8
NATIONSBANK TOWER
OFFICE LEASE
BETWEEN
MIAMI TOWER ASSOCIATES
LIMITED PARTNERSHIP
LANDLORD
AND
CONTINUCARE CORPORATION
TENANT
PART OF THE THIRTY-SIXTH (36TH) FLOOR
100 SOUTHEAST SECOND STREET
MIAMI, FLORIDA
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION SUBJECT PAGE
- ------- ------- ----
<S> <C> <C>
1. DEFINED TERMS....................................................... 1
2. DEMISE.............................................................. 3
3. LEASE TERM.......................................................... 3
4. BASE RENT........................................................... 3
5. ADDITIONAL RENT..................................................... 4
6. SECURITY DEPOSIT.................................................... 9
7. USE................................................................. 11
8. COMPLIANCE WITH LAWS................................................ 12
9. QUIET ENJOYMENT..................................................... 12
10. COMMON AREAS........................................................ 13
11. RULES AND REGULATIONS............................................... 13
12. SERVICES............................................................ 14
13. LANDLORD'S INITIAL IMPROVEMENTS..................................... 17
14. NO REPRESENTATIONS BY LANDLORD...................................... 19
15. ACCEPTANCE OF PREMISES.............................................. 20
16. REPAIRS............................................................. 20
17. ALTERATIONS......................................................... 21
18. CONSTRUCTION LIENS.................................................. 23
19. INDEMNIFICATION..................................................... 23
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION SUBJECT PAGE
- ------- ------- ----
<S> <C> <C>
20. INSURANCE........................................................... 24
21. DAMAGE OR DESTRUCTION............................................... 26
22. EMINENT DOMAIN...................................................... 27
23. PARKING............................................................. 28
24. ESTOPPEL STATEMENT.................................................. 29
25. SUBORDINATION OF LEASE.............................................. 29
26. ATTORNMENT.......................................................... 30
27. ASSIGNMENT AND SUBLETTING........................................... 32
28. SUCCESSORS AND ASSIGNS.............................................. 39
29. INSOLVENCY, DEFAULT................................................. 39
30. ADDITIONAL LANDLORD RIGHTS; LATE FEES............................... 42
31. TENANT CLAIMS....................................................... 42
32. WAIVER OF DEFAULT................................................... 42
33. LIEN ON TENANT PROPERTY............................................. 43
34. RIGHT OF ENTRY...................................................... 43
35. NOTICES............................................................. 43
36. ATTORNEYS' AND ACCOUNTANTS' FEES.................................... 44
37. CONDITION OF PREMISES ON TERMINATION OF LEASE AND
HOLDING OVER........................................................ 44
38. OCCUPANCY AND PERSONAL PROPERTY TAX................................. 45
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION SUBJECT PAGE
- ------- ------- ----
<S> <C> <C>
39. SIGNS............................................................... 45
40. WAIVER OF TRIAL BY JURY............................................. 46
41. INTENTIONALLY DELETED............................................... 46
42. INVALIDITY OF PROVISION............................................. 46
43. MISCELLANEOUS....................................................... 47
44. INTENTIONALLY DELETED............................................... 49
45. RADON GAS NOTICE.................................................... 49
46. PARTNERSHIP TENANT.................................................. 49
47. ENTIRE AGREEMENT.................................................... 49
48. BROKERAGE........................................................... 50
49. FORCE MAJEURE....................................................... 50
50. SHORT FORM LEASE.................................................... 50
51. RELATIONSHIP OF PARTIES............................................. 50
52. DELIVERY OF LEASE INSTRUMENT........................................ 50
53. OPTION TO EXTEND.................................................... 51
54. ADDITIONAL SPACE.................................................... 52
55. TENANT'S RIGHT OF FIRST REFUSAL..................................... 55
</TABLE>
iii
<PAGE> 5
LIST OF EXHIBITS AND ATTACHMENTS
EXHIBIT A LOCATION OF PREMISES
EXHIBIT B FORM OF LETTER OF CREDIT
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D SCOPE OF THE WORK
EXHIBIT E GENERAL CONDITIONS FOR BUILD OUT
EXHIBIT F LOCATION OF ADDITIONAL SPACE
iv
<PAGE> 6
NATIONSBANK TOWER OFFICE LEASE
INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
TERM PAGE
---- ----
<S> <C>
Additional Rent...............................................................4
Additional Space.............................................................52
Adjustment Date..............................................................52
Alterations ................................................................21
Base Rent .................................................................1
Broker .................................................................2
Building Standard Hours......................................................14
City ................................................................31
Commencement Date.............................................................2
Common Areas ................................................................13
Costs of Possession and Reletting............................................40
DOSP ................................................................28
Expiration Date...............................................................2
Extension Term...............................................................51
Fair Market Rent.............................................................51
First Refusal Space..........................................................55
Force Majeure................................................................50
Landlord .................................................................1
Landlord's Consultant........................................................21
Landlord's Contribution.......................................................2
Landlord's Initial Improvements..............................................17
Landlord's Notice............................................................55
Lease .................................................................1
Lease Term .................................................................3
Lease Year .................................................................2
Letter of Credit.............................................................10
Market Rent ................................................................35
Miami Lease .................................................................2
Offer ................................................................55
Office Building...............................................................2
Operating Expense Base........................................................2
Operating Expenses............................................................4
Parking Garage................................................................2
Partnership Tenant...........................................................49
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
TERM PAGE
---- ----
<S> <C>
Permitted Use............................................................... 2
Premises.................................................................... 3
Project..................................................................... 3
Purchaser................................................................... 30
Rent Commencement Date...................................................... 3
Retail Area................................................................. 3
Revisions................................................................... 17
Rules and Regulations....................................................... 13
Scope of Work............................................................... 17
Security Deposit............................................................ 3
Space Reduction Date........................................................ 53
Space Reduction Notice...................................................... 53
Space Reduction Option...................................................... 53
Substantial Completion Date................................................. 17
Substitution Date........................................................... 10
Taxes....................................................................... 7
Tenant...................................................................... 1
Tenant Delay ............................................................... 17
Tenant's Extra Cost......................................................... 17
Tenant's Proportionate Share................................................ 3
Terminated Space............................................................ 53
Termination Payment......................................................... 53
Toxic Waste Regulations..................................................... 11
Transfer.................................................................... 32
Transferee.................................................................. 32
</TABLE>
vi
<PAGE> 8
NATIONSBANK TOWER OFFICE LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of this 29 day
of August, 1996 between MIAMI TOWER ASSOCIATES LIMITED PARTNERSHIP, a Florida
limited partnership ("Landlord"), whose address for the purpose of this Lease is
NationsBank Tower, 100 S.E. 2nd Street, Miami, Florida 33131, and CONTINUCARE
CORPORATION, a Florida corporation ("Tenant"), whose address is currently 3333
West Commercial Blvd., #105, Ft. Lauderdale, FL 33309. After the Commencement
Date (as hereinafter defined) of this Lease, Tenant's address for the purpose of
this Lease shall be the Premises (as hereinafter defined).
1. DEFINED TERMS The following terms, as used in this Lease, have the following
meanings.
1.1. "Base Rent":
(a) During the first (1st) Lease Year (as hereinafter
defined), One Hundred Seventy-Two Thousand One Hundred Sixteen and 00/100
($172,116.00) Dollars per annum, payable in equal monthly installments of
Fourteen Thousand Three Hundred Forty-Three and 00/100 ($14,343.00) Dollars
each, as the same may be increased pursuant to the provisions of Section 54
hereof;
(b) During the second (2nd) Lease Year, One Hundred
Seventy-Six Thousand Two Hundred Fourteen and 00/100 ($176,214.00) Dollars per
annum, payable in equal monthly installments of Fourteen Thousand Six Hundred
Eighty-Four and 50/100 ($14,684.50) Dollars each, as the same may be increased
pursuant to the provisions of Section 54 hereof;
(c) During the third (3rd) Lease Year, One Hundred Eighty
Thousand Three Hundred Twelve and 00/100 ($180,312.00) Dollars per annum,
payable in equal monthly installments of Fifteen Thousand Twenty-Six and 00/100
($15,026.00) Dollars each, as the same may be increased pursuant to the
provisions of Section 54 hereof;
(d) During the fourth (4th) Lease Year, One Hundred
Eighty-Four Thousand Four Hundred Ten and 00/100 ($184,410.00) Dollars per
annum, payable in equal monthly installments of Fifteen Thousand Three Hundred
Sixty-Seven and 50/100 ($15,367.50) Dollars each, as the same may be increased
pursuant to the provisions of Section 54 hereof; and
(e) During the fifth (5th) Lease Year, One Hundred
Eighty-Eight Thousand Five Hundred Eight and 00/100 ($188,508.00) Dollars per
annum, payable in equal monthly installments of Fifteen Thousand Seven Hundred
Nine and 00/100 ($15,709.00) Dollars each, as the same may be increased pursuant
to the provisions of Section 54 hereof. The Base Rent
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<PAGE> 9
shall be payable in the manner described in Section 4.
1.2. "Broker": collectively, Winthrop Management and Codina Bush Klein
o Oncor International.
1.3. "Commencement Date": the first day of the Lease Term (as
hereinafter defined), which is the earlier of (a) the Substantial Completion
Date (as defined and described in Sections 13.5 and 13.11), or (b) the day
Tenant first takes possession of the Premises for the purpose of receiving
delivery of its office furniture and equipment.
1.4. "Expiration Date": the last day of the calendar month in which
the fifth (5th) anniversary of the Commencement Date occurs.
1.5. "Landlord's Contribution": (a) with respect to the Premises only,
$72,534.60 and (b) with respect to the Space (as hereinafter defined) only,
$47,073.15.
1.6. "Lease Year": a twelve (12) calendar month period, the first of
which Lease Year commences on the Commencement Date; however, if the
Commencement Date does not fall on the first day of a calendar month then the
first Lease Year shall contain the remaining days in said month plus the
following eleven calendar months. Each subsequent Lease Year shall be twelve
full calendar months commencing with the first day of the calendar month
following the previous Lease Year.
1.7. "Miami Lease": that certain lease between The City of Miami and
Dade Savings and Loan Association dated July 1, 1980, as such lease has been and
may be modified and amended from time to time.
1.8. "Office Building": the thirty-seven (37) story office tower
presently known as NationsBank Tower with a street address of 100 Southeast
Second Street, Miami, Florida 33131, which office tower is part of the Project
and is constructed in the air space over the Parking Garage, and which is
conclusively deemed to consist of 567,572 rentable square feet, together with
all appurtenant rights granted to Landlord, as lessee under the Miami Lease in
and to other portions of the Project.
1.9. "Operating Expense Base": the actual amount of "Operating
Expenses" (as defined in Subsection 5.1.1 hereof) paid or incurred by Landlord
during the calendar year 1997.
1.10. "Parking Garage": the parking garage located immediately
underneath the Office Building and included in the Project at the time of this
Lease, which is presently owned by The City of Miami and operated by the
Department of Off Street Parking of The City of Miami.
1.11. "Permitted Use": executive and general offices solely in
connection with Tenant's business, subject to the provisions of Section 7.
2
<PAGE> 10
1.12. "Premises": the space located on the thirty-sixth (36th) floor in
the Office Building, which space is conclusively deemed to consist of 8,196
rentable square feet and is located substantially as shown shaded (or hatched)
on Exhibit "A" annexed hereto and made a part hereof.
1.13. "Project": a multipurpose project presently known as NationsBank
Tower, which includes (a) the Office Building, (b) the building which underlies
the Office Building that contains the Parking Garage and the Retail Area, (c)
the real property which underlies and is adjacent to such building and the
Office Building, (d) all air rights related to any of the foregoing, and (e) all
appurtenances, tenements and hereditaments related to, growing out of or arising
from any of the foregoing.
1.14. "Rent Commencement Date": the fifth (5th) business day following
the Commencement Date.
1.15. "Retail Area": the retail area on the ground floor of the
building which underlies the Office Building which is used for retail purposes.
1.16. "Security Deposit": $100,000.00, to be paid and held in
accordance with, and subject to reduction pursuant to, the provisions of Section
6.
1.17. "Tenant's Proportionate Share": one and forty-four hundredths
(1.44%) percent, as the same may be increased pursuant to the provisions of
Section 54 hereof.
2. DEMISE:
2.1. Subject to and upon the terms and conditions of this Lease,
Landlord leases to Tenant, and Tenant leases from Landlord the Premises.
2.2. This Lease does not grant any right to light, air or view over,
about or from the Premises, the Office Building or the Project.
3. LEASE TERM: This Lease shall be for a term (the "Lease Term") which commences
on the Commencement Date and ends on the Expiration Date, unless sooner
terminated or extended as provided in this Lease. Within ten (10) days of
Landlord's request, Tenant and Landlord shall join in the execution of an
agreement stipulating the Commencement Date and the Expiration Date of the Lease
Term.
4. BASE RENT:
4.1. Commencing as of the Rent Commencement Date, and continuing
throughout the
3
<PAGE> 11
Lease Term, Tenant shall pay Landlord an annual Base Rent as specified in
Subsection 1.1 payable without demand on or in advance of the first day of each
month in equal monthly installments, plus tax, without any offset or deduction
whatsoever, in lawful money (legal tender for public or private debts) of the
United States of America, at the office of Landlord's managing agent as follows:
Winthrop Management, NationsBank Tower, Suite 4600, Miami, Florida 33131; or
elsewhere as designated from time to time by Landlord's written notice to
Tenant. Upon Tenant's execution of this Lease, Tenant shall pay to Landlord the
amount of Base Rent due for the first full calendar month of the Lease Term. If
the Rent Commencement Date occurs on a date other than the first day of a
calendar month, Tenant shall pay to Landlord on or before the first day of the
next month the monthly installment of Base Rent for such partial month on a pro
rata basis (based on the actual number of days in the commencement month), and
the first month's rent paid by Tenant as described above shall be applied to the
first full calendar month of the Lease Term for which rent shall be due and
payable. Such payment, together with the sum paid by Tenant as first month's
rent upon the execution of this Lease, shall constitute payment of the Base Rent
for the period from the Rent Commencement Date to and including the last day of
the next succeeding calendar month.
4.2. Tenant shall pay to Landlord the amount of any sales or similar
tax imposed by the State of Florida or any subdivision thereof on the rents and
other charges payable by Tenant under this Lease. Such payments on account of
sales or similar taxes shall be paid together with the corresponding amounts due
under this Lease, and the obligation to pay same shall survive the expiration or
earlier termination of this Lease.
5. ADDITIONAL RENT:
5.1. In addition to the Base Rent, Tenant shall pay to Landlord all
rents, sums and charges other than Base Rent due Landlord under this Lease
("Additional Rent"). Additional Rent includes, but is not limited to, Tenant's
Proportionate Share of the increases in all "Operating Expenses" (as hereinafter
defined) described or anticipated in this Section, including "Taxes" (as defined
in Subsection 5.1.2) over the Operating Expense Base, which occur in each
calendar year during the Lease Term.
5.1.1. "Operating Expenses" means all expenses, costs and
disbursements, of every kind and nature, including Taxes, which Landlord may pay
or become obligated to pay because of or in connection with the ownership,
management, maintenance and/or operation of the Office Building (including
"Common Areas", as hereinafter defined), the Project, and the personal property
of Landlord used in the operation of the Office Building, as determined in
accordance with generally accepted accounting principles, which are properly
chargeable to the operation of the Office Building.
5.1.1.1. By way of explanation and clarification, but
not by way of limitation, Operating Expenses shall include the following:
4
<PAGE> 12
(a) wages and salaries of all employees
engaged in the operation, management, maintenance, and security of the Office
Building, employer's social security taxes, unemployment taxes or insurance, and
any other taxes which may be levied on such wages and salaries, the cost of
disability and hospitalization insurance, pension or retirement benefits, and
any other fringe benefits for such employees;
(b) cost of all supplies, tools, materials
and equipment, whether leased or owned, used in the operation, management and
maintenance of the Office Building;
(c) cost and fees of all utilities,
including water, sewer, electricity, gas and fuel oil used by the Office
Building and not collected directly from a tenant;
(d) reasonable cost and fees of the Office
Building management;
(e) janitorial services and trash and
garbage removal;
(f) service, maintenance and replacement of
all systems and equipment including, but not limited to, elevators, plumbing,
heating, air conditioning, ventilating, lighting, electrical, security and fire
alarms, fire pumps, fire extinguishers and hose cabinets, mail chutes, and those
related to guard service, painting, window cleaning, landscaping and gardening;
(g) reasonable legal, accounting and other
professional fees and expenses;
(h) cost and expense of providing and
maintaining security personnel and services;
(i) cost of supplying and cleaning
employees' uniforms and work clothes;
(j) reasonable dues and expenses for trade
and industry associations;
(k) reasonable administrative costs, such as
(but not limited to) postage, stationery, photocopy expenses and other
management office supplies;
(l) imputed cost equal to the loss of rent
by Landlord for space used for on-site management at an imputed cost which is
equal to the rental rate then charged by Landlord for comparable space in the
Office Building;
(m) cost of providing pest control for the
Office Building;
(n) cost of casualty, liability and other
insurance;
5
<PAGE> 13
(o) any and all occupancy, gross receipts or
rental taxes paid by Landlord in connection with the Office Building, but not
income or any other tax imposed or measured by Landlord's income or profits
(unless such tax is in lieu of real estate taxes or sales taxes);
(p) any and all Taxes and costs on or
related to the Office Building and the Miami Lease, including rental and other
payments thereunder, and any appurtenances, tenements and hereditaments charged
to the Office Building or leasehold interest by a taxing authority (if the
amount of Operating Expenses attributable to the Office Building and interests
under the Miami Lease cannot be separately ascertained, the amount of such
Operating Expenses shall be determined on an equitable basis and verified by
Landlord's accountant whose determination shall be reviewed, and adjusted if
appropriate, by Landlord, annually); and
(q) cost of capital expenditures made by
Landlord which are either (i) for labor or energy saving devices or materials or
are intended to reduce Operating Expenses or (ii) required by any governmental
or quasi-governmental authority, amortized on a straight line basis over the
useful life thereof as determined in accordance with generally accepted
accounting principles, together with interest on the unamortized cost of such
expenditure.
5.1.1.2. Operating Expenses will be deemed to
specifically exclude the following:
(a) leasing commissions;
(b) the cost of tenant installations and
decorations incurred in connection with preparing space for a new tenant or the
cost of renovating, painting or redecorating space of existing tenants;
(c) the cost to Landlord of repairs made, or
other work done, by Landlord as a result of fire, windstorm or other insurable
casualty or by the exercise of eminent domain, provided, however, that this
exclusion is limited to the amount of the insurance proceeds or condemnation
award received by Landlord for such repairs or other work;
(d) attorneys' fees and court costs and
other such expenses incurred by Landlord in connection with the negotiation of
disputes with existing or prospective tenants of the Office Building or in
enforcing remedies in the event of tenant defaults;
(e) amounts for which reimbursement has been
made to Landlord by tenants of the Office Building for "extra hours" services
rendered to them by Landlord;
(f) interest on debt or amortization
payments on any mortgages
6
<PAGE> 14
covering the Office Building;
(g) compensation paid by Landlord to persons
engaged in commercial concessions operated by Landlord (and not by a third
party) in the Office Building (e.g., sundries shop);
(h) expenses paid by Landlord for the
advertising and promotion of rental space in the Office Building;
(i) fines, penalties or other costs incurred
by Landlord due to its violation of any governmental rule or authority;
(j) salaries, wages and benefits of
Landlord's on-site employees above the level of "General Manager"; and
(k) depreciation expense on the Office
Building.
5.1.2. "Taxes" means all impositions, taxes, assessments
(special or otherwise), water and sewer charges and rents, impact fees and other
governmental liens and charges of any and every kind, and substitutes therefor,
and each and every installment thereof including any charges or interest on
amounts which may be or are paid in installments, and all costs incurred by
Landlord in contesting or negotiating such amounts with any governmental or
regulatory authority, attributable in any manner to the Office Building or the
rents (however the term may be defined) receivable from all or any part of the
Office Building, or any use of it, or any facility or personal property located
in or on it or used in conjunction with it or any charge or other payment
required to be paid to any governmental authority, however designated. Nothing
in this Section 5 shall be construed to include as a tax which shall be the
basis of Taxes any inheritance, estate, succession, transfer or gift taxes
imposed upon Landlord or any income taxes specifically payable by Landlord as a
separate tax-paying entity without regard to Landlord's income source
(irrespective of whether differing tax rates are applicable to different types
of income) as arising from or out of the Project or the Office Building or any
tax payable by Tenant pursuant to any other provisions of this Lease.
5.2. If during all or part of any calendar year during the Lease Term,
the Office Building is less than ninety-five percent (95%) occupied, or services
are delivered to less than ninety-five percent (95%) of the Office Building
rentable area, then, Operating Expenses shall be deemed to be increased by an
amount equal to the additional costs and expenses which would reasonably have
been incurred during such period if the Office Building had been ninety-five
percent (95%) occupied or Landlord had furnished full service to ninety-five
percent (95%) of the Office Building rentable area. The ninety-five (95%)
percent adjustment factor described in this Subsection 5.2 is not intended to
result in Landlord receiving any amount in excess of Landlord's actual Operating
Expenses in any Lease Year. Landlord hereby represents that the Operating
Expense Base will be based on the actual Operating Expenses for the Office
Building for the calendar year 1997 as "grossed-up" in accordance with the
provisions of this Subsection
7
<PAGE> 15
5.2.
5.3. Landlord agrees to maintain accounting books and records
reflecting the Operating Expenses in accordance with generally accepted
accounting principles. Notwithstanding anything to the contrary under this
Lease, including but not limited to the provisions of Subsection 5.4, Landlord's
rent payments under the Miami Lease or any other lease under which Landlord has
rights to possession of the Office Building shall be included in Operating
Expenses to the extent that the Miami Lease is not modified to increase rent
payments from those provided in the form of such Lease which exists on the date
of this Lease (in which event, for the purposes of this Section, the payments
under the Miami Lease shall be deemed to have been made in accordance with the
form of such lease which exists on such date).
5.4. Commencing on January 1, 1998, Tenant shall, on the first day of
each month in advance pay to Landlord pro rata monthly installments on account
of the amount reasonably projected by Landlord for Tenant's Proportionate Share
of increases in Operating Expenses over the Operating Expense Base, based upon
the most recent data available to Landlord, from time to time, for Operating
Expenses. Following the end of each calendar year during the Lease Term,
Landlord shall submit to Tenant a statement showing the actual amount which
should have been paid by Tenant with respect to increases in Operating Expenses
for the past calendar year, the amount of those expenses actually paid during
that year by Tenant and the amount of the resulting balance due on those
expenses, or overpayment of them, as the case may be. Said statement shall
become final and conclusive between the parties, their successors and assigns as
to the matters set forth in it unless Tenant, within sixty (60) days of receipt
by Tenant of such statement, sends a written notice to Landlord objecting to
such statement and specifying the respects in which such statement is claimed to
be incorrect. If such notice is sent, the parties recognize the unavailability
of Landlord's books and records because of the confidential nature thereof and
hence agree that either party may refer the decision of the issues raised to a
reputable independent firm of certified public accountants selected by Landlord
and reasonably acceptable to Tenant, and the decision of such accountants shall
be conclusively binding upon the parties. The fees and expenses involved in such
decision shall be borne by Tenant unless Landlord's charges are found to be in
error by more than four percent (4%). Any balance shown to be due pursuant to
said statement shall be paid by Tenant to Landlord within thirty (30) days
following Tenant's receipt of the statement and any overpayment shall be
immediately credited against Tenant's obligation to pay expected Additional Rent
in connection with anticipated increases in Operating Expenses or, if by reason
of any termination of this Lease no such future obligation exists, shall be
refunded to Tenant. Anything in this Lease to the contrary notwithstanding,
Tenant shall not delay or withhold payment of any balance shown to be due
pursuant to a statement rendered by Landlord to Tenant, pursuant to the terms of
this Lease, because of any objection which Tenant may raise with respect to the
statement. If at the time of the resolution of said objection the Lease Term has
expired, Landlord shall immediately refund to Tenant any overpayment found to be
owing to Tenant.
5.5. Additional Rent for the final months of this Lease is due and
payable even though it may not be calculated until subsequent to the Expiration
Date or earlier termination of this
8
<PAGE> 16
Lease. Increases in Operating Expenses over the Operating Expense Base for the
calendar years during which this Lease commences and terminates shall be
prorated according to that portion of said calendar year that this Lease shall
have actually been in effect.
5.6. Failure of Landlord to furnish in a timely manner a statement of
actual increases in Operating Expenses or to give notice of an adjustment to
rent under this Section 5 shall not prejudice or act as a waiver of Landlord's
right to furnish such statement or to give such notice at a subsequent time or
to collect any adjustment to the Additional Rent for any preceding period.
5.7. Tenant recognizes that Landlord's statements showing the estimate
of increases in Operating Expenses for any calendar year may be rendered at the
end of the previous calendar year or the beginning of such calendar year. If
Landlord's statement is rendered subsequent to the beginning of a calendar year,
Tenant shall continue to pay the increase in Operating Expenses for the prior
calendar year and, should a deficiency result by virtue of an increase in
Landlord's estimate of the Operating Expenses for the current year, Tenant shall
pay the amount of such deficiency, if any, in full, in addition to the next
monthly rent payment. Landlord shall have the right to adjust the estimate of
increases in Operating Expenses set forth in a prior Landlord's statement for
any Lease Year and bill Tenant for any deficiency. Any such deficiency payment
shall be due within fifteen (15) days of Tenant's receipt of such bill.
6. SECURITY DEPOSIT:
6.1 Tenant shall deposit with Landlord upon Tenant's execution of this
Lease the Security Deposit as security for the faithful performance and
observance by Tenant of the terms, conditions and provisions of this Lease,
including without limitation the surrender of possession of the Premises to
Landlord as provided in this Lease. In the event Tenant defaults in respect of
any of the terms, provisions or conditions of this Lease, including, but not
limited to, the payment of Base Rent and Additional Rent, Landlord may apply or
retain the whole or any part of the Security Deposit so deposited to the extent
required for the payment of any Base Rent and Additional Rent or any other sum
as to which Tenant is in default or for any sum which Landlord may expend or may
be required to expend by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this Lease, including but not limited to any
damages or deficiency in the reletting of the Premises, whether such damages or
deficiency accrue(s) before or after summary proceedings or other reentry by
Landlord. If Landlord applies or retains any part of the Security Deposit so
deposited, Tenant shall, within three (3) days after notice from Landlord,
deposit with Landlord the amount so applied or retained so that Landlord shall
have the full Security Deposit on hand at all times during the Lease Term. The
failure by Tenant to deposit such additional amount within the foregoing time
period shall be deemed a material default. Landlord will not be required to pay
Tenant any interest on the Security Deposit. If Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the Security Deposit shall be returned to Tenant after the
expiration of the Lease Term, after delivery of the entire possession of the
Premises and
9
<PAGE> 17
keys thereto to Landlord, and after the determination and payment of all amounts
due under this Lease. In the event of a sale, leasing or other transfer of the
Office Building or tenant's interest in the Miami Lease, Landlord shall have the
right to transfer the Security Deposit to the vendee or lessee and Landlord
shall thereupon automatically be released by Tenant from all liability for the
return of the Security Deposit. In such event, Tenant agrees to look solely to
the new landlord for the return of the Security Deposit and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the Security Deposit and
that neither Landlord nor its successors or assigns shall be bound by any such
actual or attempted assignment or encumbrance.
6.2 In lieu of a cash deposit by Tenant for the Security Deposit,
Tenant may deposit with Landlord a clean, irrevocable and unconditional letter
of credit ("Letter of Credit") issued by and drawn upon any commercial bank
reasonably acceptable to Landlord with offices for banking purposes in the City
of Miami and having a net worth of not less than One Hundred Million
($100,000,000) Dollars, which letter of credit shall be in the amount of the
Security Deposit in the form annexed hereto as Exhibit B. At any time that
Tenant is in default under this Lease beyond any applicable notice and grace
period, Landlord shall have the right to draw down the entire credit and hold
and apply the proceeds or any part thereof in accordance with the provision of
this Section 6 and such Letter of Credit or the proceeds thereof shall continue
to constitute the Security Deposit hereunder. Landlord shall also have the right
to draw down the entire amount of credit in the event that Landlord fails to
receive a replacement Letter of Credit on or prior to the thirtieth (30th) day
preceding the expiration date thereof. In no event shall the Letter of Credit
expire prior to the thirtieth (30th) day following the Expiration Date. If
Landlord shall have drawn down the Letter of Credit and applied all or a portion
thereof in accordance with the terms of this Section 6, then Tenant shall
deposit with Landlord, within three (3) days after notice from Landlord, a
sufficient amount of cash to bring the balance of the cash held by Landlord
under this Section 6 to the amount of the Security Deposit. The failure of
Tenant to deposit such additional amount within the foregoing time period shall
be deemed a material default pursuant to Section 29 of this Lease.
6.3 Provided this Lease shall be in full force and effect and Tenant
shall not be in default hereunder and Tenant shall have made all payments of
Base Rent and Additional Rent when due following the Rent Commencement Date, the
Security Deposit will be reduced by $25,000.00 on the first day of each of the
second (2nd), third (3rd), fourth (4th) and fifth (5th) Lease Years (each such
date is hereinafter individually referred to as a "Substitution Date"). In the
event Tenant shall have deposited with Landlord a Letter of Credit, Landlord
shall accept a substitute letter of credit in the reduced amount on each
respective Substitution Date and shall thereupon return to Tenant the original
Letter of Credit then being held by Landlord. In the event the Security Deposit
is cash, Landlord shall promptly return the reduced portion of the Security
Deposit to Tenant.
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7. USE:
7.1. Tenant shall use and occupy the Premises for the Permitted Use and
for no other use or purpose. The Premises shall not be used for retail sales or
temporary "executive office suites" or for any illegal purposes or in violation
of any regulation of any governmental body, or in any manner which creates any
nuisance or trespass, or vitiates any insurance or increases the rate of
insurance on the Premises or the Office Building.
7.2. Tenant shall not operate any coin or token operated vending
machine or similar device for the sale of any goods, wares, merchandise, food,
beverages or services, including but not limited to, pay telephones, pay
lockers, pay toilets, scales, amusement devices and machines for the sale of
beverages, foods, candy, cigarettes or other commodities, without Landlord's
prior written consent. Notwithstanding the foregoing, Tenant may install and
operate food and beverage vending machines within the Premises for use by Tenant
and Tenant's employees and invitees only.
7.3. Tenant shall not permit the presence, handling, use, storage or
transportation of hazardous, toxic or otherwise dangerous materials in or about
the Premises, the Office Building or the Project, except (a) as an incidental,
customary office use such as the use of photocopier ink and (b) in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines,
related to all toxic, dangerous and hazardous materials, of all governmental and
regulatory authorities having jurisdiction, and of the Board of Insurance
Underwriters ("Toxic Waste Regulations"). In no event shall Tenant manufacture
or dispose of hazardous or toxic materials in or about the Premises, the Office
Building or the Project; Tenant shall cause them to be disposed of only by means
of a duly licensed hazardous waste disposal service and in accordance with Toxic
Waste Regulations. Tenant shall provide Landlord with copies of all pertinent
documentation establishing disposal in accordance with the foregoing including,
without limitation, manifests and receipts for materials. Tenant shall obtain
and maintain throughout the Lease Term and any extensions or renewals thereof
all licenses and permits required in connection with Tenant's activities which
may involve hazardous or toxic materials. Tenant shall allow access to the
Premises by Landlord, the Dade County Department of Environmental Resources
Management, and other applicable regulatory authorities so that such parties may
assure compliance with the requirements of this Subsection 7.3. Tenant
acknowledges that it is aware of the penalties for improper disposal of
hazardous waste as set forth in Section 403.727, Florida Statutes; Tenant
warrants and represents to and covenants with Landlord that Tenant shall comply
with all requirements of Toxic Waste Regulations including, without limitation,
the applicable requirements of Chapter 403, Florida Statutes. Tenant represents
and warrants that Tenant shall at all times during the Lease Term or any
extension or renewal thereof be in compliance with Toxic Waste Regulations, and
shall indemnify, defend and hold Landlord and Landlord's mortgagees harmless
from and against any and all claims, liabilities, injuries, damages, costs and
expenses (including attorneys' fees) arising from, growing out of or related to
any breach of the covenants, representations or warranties of this Subsection
7.3. The provisions of this Subsection 7.3 shall survive the termination of this
Lease.
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8. COMPLIANCE WITH LAWS: Tenant shall comply with all governmental and
applicable insurance underwriters' rules, regulations, decrees or requirements
applicable to the use and occupancy of the Premises, now or hereinafter in
effect, including, without limitation, the Americans with Disabilities Act. If,
as a result of any change in governmental laws, ordinances and regulations, the
Premises must be altered lawfully to accommodate Tenant's use and occupancy,
such alterations shall be made by Tenant at Tenant's sole cost and expense
subject to the prior consent of Landlord, which consent shall be granted or
denied pursuant to the terms of Section 17 hereof; the necessity of Landlord's
consent shall in no way create any liability against Landlord for failure of
Tenant to comply, or to alter the Premises to comply, with such laws, ordinances
and regulations. If Tenant receives notice of any claim of violation of any law,
rule or regulation applicable to the Premises, Tenant shall give prompt notice
of such notice to Landlord. Tenant shall not do or permit anything to be done in
or about the Premises which will obstruct or interfere with the rights of other
tenants in the Office Building. Tenant shall not overload the floors, nor shall
Tenant install any heavy business machines or any safes or heavy equipment of
any kind without Landlord's prior written consent which, if granted, may be
conditioned upon moving by skilled licensed handlers and installation and
maintenance at Tenant's expense of special reinforcings and settings adequate to
absorb and prevent noise and vibration.
9. QUIET ENJOYMENT:
9.1. Upon payment by Tenant of the rents provided in this Lease, and
upon the observance and performance by Tenant of all terms, provisions,
covenants and conditions on Tenant's part to be observed and performed by it,
Tenant shall peaceably and quietly hold and enjoy the Premises for the Lease
Term, subject to all of the terms, provisions, covenants and conditions of this
Lease and subject to the terms of any underlying leases and mortgages. Landlord
agrees to make reasonable efforts to protect Tenant from interference or
disturbance by other tenants or third persons; however, Landlord shall not be
liable for any such interference or disturbance, nor shall Tenant be released
from any of the obligations of this Lease because of such interference or
disturbance.
9.2. Notwithstanding anything to the contrary in this Lease, Tenant
acknowledges and agrees that Landlord shall have the right to create a
condominium affecting the Project and in such event this Lease shall be subject
and subordinate in all respects to any master deed hereafter recorded relating
to the Project and the provisions of such condominium established thereby;
provided, however, that such master deed shall provide that, so long as Tenant
is not in default of its obligations under this Lease, Tenant's leasehold
interest shall not be disturbed or terminated by reason of Landlord's failure to
pay common condominium charges. No further instrument shall be necessary to
effect such subordination, and Tenant shall, upon request of Landlord, confirm
such subordination in writing.
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10. COMMON AREAS:
10.1. "Common Areas" means all common areas and other facilities of the
Office Building and the Project furnished by Landlord, including (if any) all
public lobbies, parking areas, truck way or ways, loading areas and loading dock
facilities, pedestrian walkways and ramps, landscaped areas, stairways,
corridors, directory signs and equipment, mechanical rooms, utility lines and
the like up to the electrical distribution panel serving the occupant
exclusively and any of the foregoing areas or facilities which serve the Common
Areas; washrooms, drinking fountains, toilets and other public facilities;
exterior portions of the Premises, and of all premises leased to or held for
lease to tenants; those portions of the Premises and of all other premises
leased or held for lease used for the installation of utility lines and other
installations required to service tenants or occupants of the Office Building
and to maintain and repair them; areas used for building stairs, fire towers,
elevator shafts, flues, vents, pipes, stacks, pipe shafts, and ducts; areas of
the Office Building or the Project with respect to which easements have been
granted in favor of the Office Building or the Premises under any easement
agreements or which otherwise benefit the Premises or the Office Building; and
other areas and improvements, provided by Landlord for the general use, in
common, of tenants, their officers, agents, employees, servants, invitees,
licensees, visitors, patrons and customers. The Common Areas shall be at all
times subject to the exclusive control and management of Landlord (except for
washrooms, drinking fountains, toilets and similar facilities on single-tenant
floors), and Landlord shall have the right from time to time to establish,
modify and enforce rules and regulations with respect to all facilities and
areas and improvements; to police same; to close or relocate all or any portion
of the Common Areas or facilities to such extent as may in the opinion of
Landlord's counsel be legally sufficient to prevent a dedication of such areas
or facilities or the accrual of any rights to any person or the public in such
areas or facilities; to close temporarily all or any portion of the public
areas, the Common Areas or facilities; and to do and perform such other acts in
and to said areas and improvements as, in the sole judgment of Landlord,
Landlord shall determine. Landlord shall also have the right at any time,
without such action constituting an actual or constructive eviction and without
incurring any liability to Tenant for such action, to change the arrangement
and/or location of entrances or passageways, doors, corridors, elevators or
other facilities. Landlord shall not be liable to Tenant for any expense,
injury, loss or damage resulting from work done in or upon, or the use of, any
adjacent or nearby facility, building, land, street, alley or other area.
10.2. Landlord and Tenant each respectively covenant and agree that in
connection with its use of the Common Areas it will use reasonable efforts to
proceed expeditiously with any work which it does, so as to minimize any
disturbance to the Common Areas or to the ordinary and usual conduct of business
in the Office Building.
11. RULES AND REGULATIONS: Tenant agrees to comply with all the rules and
regulations which Landlord may adopt from time to time for the operation,
protection and welfare of the Office Building and the Project, their tenants,
visitors and occupants (the "Rules and Regulations"). The current Rules and
Regulations are attached as Exhibit "C". Future
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Rules and Regulations shall become a part of this Lease, and Tenant agrees to
comply with the same, provided such future Rules and Regulations do not
materially deprive Tenant of its rights established under this Lease. Nothing in
this Lease shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other
lease, or against any other tenant; Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees. If there is any conflict between the terms of this Lease
and the Rules and Regulations, the terms of this Lease shall control.
12. SERVICES:
12.1. Landlord will furnish the following services to Tenant:
12.1.1. cleaning and janitorial services as are normal and
usual in comparable office buildings in Dade County, Florida, on Monday through
Friday except for holidays described in Subsection 12.1.3. (provided, however,
shampooing and replacement of carpet as required by Tenant shall be at Tenant's
expense);
12.1.2. automatically operated passenger elevator service,
public stairs, electrical current for normal office use, and water at those
points of supply provided for general use of its tenants at all times and on all
days throughout the year;
12.1.3. air conditioning reasonably sufficient to cool the
Premises during Monday through Friday from 8:00 A.M. to 7:00 P.M., and on
Saturdays from 9:00 A.M. to 3:00 P.M., except New Year's Day, Memorial Day,
Fourth of July, Labor Day, Thanksgiving Day, Christmas Day and federal and
Florida state holidays of general application ("Building Standard Hours");
12.1.4. freight elevator service on an "as available" basis
for incidental use by Tenant. Any use beyond Building Standard Hours may be
arranged with Landlord's prior consent and Tenant shall pay as Additional Rent
Landlord's then-standard charges for such service;
12.1.5 all Building standard incandescent and florescent bulb
replacement, including ballast replacement; and
12.1.6 security in the form of limited access to the Office
Building during times other than Building Standard Hours.
12.2. In the event separate meters are installed for Tenant's use of
any utilities on the Premises, Landlord shall have no responsibility to provide
such utility service and Tenant shall pay the full cost of such utility service
directly to the appropriate utility, or to Landlord should Landlord so request.
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12.3. No electric current shall be used except that furnished or
approved by Landlord, nor shall electric cable or wire be brought into the
Premises, except upon the written consent and approval of Landlord. Tenant shall
use only office machines and equipment which operate on the Office Building's
standard electric circuits, but which in no event shall overload the Office
Building's standard electric circuits from which Tenant obtains electric
current. Any consumption of electric current in excess of that which is normal
and customary for all tenants, or requiring special circuits or equipment, such
as automatic data processing equipment or supplemental air conditioning units
(the installation of which shall be at Tenant's expense after approval in
writing by Landlord), shall be paid to Landlord by Tenant as Additional Rent in
an amount to be determined by Landlord based upon Landlord's estimated cost of
such excess electric current consumption or based upon the actual cost if such
excess electric current consumption is separately metered. Tenant shall pay its
equitable, proportionate share of the cost of equipment which may be installed
from time to time to service or provide such excess electricity for Tenant and,
if appropriate, one or more other tenants.
12.4. Such services shall be provided as long as this Lease is in full
force and effect and Tenant is not in default under any of its provisions,
subject to interruption caused by Force Majeure (as defined in Section 49), and
conditions and causes beyond the control of Landlord. Furthermore, Landlord
reserves the right to stop the service of the air-cooling, elevator, electrical,
plumbing or other mechanical systems or facilities in the Office Building when
necessary, by reason of accident or emergency, or for repairs, additions,
alterations, replacements, decorations or improvements desirable or necessary to
be made in the judgment of Landlord, until said repairs, alterations,
replacements or improvements shall have been completed. Landlord shall have no
responsibility or liability for interruption, curtailment or failure to supply
cooled or outside air, heat, elevator, plumbing or electricity when prevented by
exercising its right to stop service or by Force Majeure or by any cause
whatsoever reasonably beyond Landlord's control, or by failure of independent
contractors to perform, or by laws, orders, rules or regulations of any federal,
state, county or municipal authority. The exercise of such right or such failure
by Landlord shall not constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any compensation or to any abatement or diminution
of Base Rent or Additional Rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise.
12.5. If any governmental authority shall order mandatory energy
conservation or if Landlord elects voluntarily to cooperate in energy
conservation at the request of any governmental authority including, but not
limited to, a reduction in operating hours or lighting usage, then Tenant shall
comply with such requirements. Tenant's compliance with such requirements shall
not entitle Tenant to any abatement of rent or damages for any injury or
inconvenience occasioned thereby nor shall it be construed as an eviction or
disturbance of possession.
12.6. Services described in Subsection 12.1 for times or days other
than as prescribed in said subsection may be made available by Landlord for the
benefit of Tenant provided Tenant
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has given Landlord written notice at least twenty-four (24) hours in advance.
Tenant shall pay within five (5) days following written demand as Additional
Rent, Landlord's then-standard charge for such additional service(s).
12.7. Tenant shall pay to Landlord, as Additional Rent, a reasonable
charge for: (a) any extra cleaning of the Premises required because of the
carelessness or indifference of Tenant or because of the nature of Tenant's
business and (b) any cleaning done at the request of Tenant of any portions of
the Premises which may be used for storage, shipping room or other non-office
purposes. If the cost to Landlord for cleaning the Premises shall be increased
due to the installation in the Premises of any materials or finish, the nature
of which requires non-standard or special care, then Landlord may elect not to
provide such special service; however, if Landlord elects to provide such
service, Tenant shall pay to Landlord within five (5) days following written
demand as Additional Rent, an amount equal to such increase in cost. In
addition, Tenant shall pay to Landlord as Additional Rent the cost of removal of
any of Tenant's refuse and rubbish from the Premises and the Project to the
extent that the same (i) exceeds the refuse and rubbish usually attendant upon
the use of such Premises as offices or (ii) cannot be placed in fifty-five (55)
gallon drums.
12.8. Anything in this Section 12 to the contrary notwithstanding,
Landlord shall not be responsible if the normal operation of the Office Building
air-cooling system shall fail to provide cooled air at reasonable temperatures,
pressures or humidity or any reasonable volumes or velocities in any parts of
the Premises or the Office Building by reason of (a) human occupying factors,
(b) any machinery or equipment which produces excess heat and/or (c) any
rearrangement of partitioning or other improvements in the Premises. In the
event Tenant requires additional air conditioning equipment, whether units,
chillers, condensers, compressors, ducts, piping or other equipment, such
additional air conditioning equipment will be installed and maintained by
Landlord at Tenant's sole cost and expense, pursuant to a separate agreement to
be entered into between Landlord and Tenant but only if, in Landlord's
reasonable judgment, the same will not cause damage or injury to the Office
Building or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants. Tenant shall reimburse Landlord, as Additional Rent, in such an amount
as will compensate Landlord for the cost incurred by Landlord in operating such
additional air conditioning equipment, including, but not limited to,
electricity.
12.9. Landlord, through the Lease Term, shall have free access to any
and all mechanical installations of Tenant or of Landlord in the Premises,
including but not limited to air-cooling, fan, ventilating, machine rooms and
electrical closets.
12.10. If the sprinkler system installed in the Office Building or any
of its appliances shall be damaged or injured or not be in proper working order
by reason of any act or omission of Tenant, Tenant's agents, contractors,
employees, licensees or visitors, Landlord may restore the same to good working
condition at Tenant's sole cost and expense.
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13. LANDLORD'S INITIAL IMPROVEMENTS.
13.1. Landlord shall complete or cause the completion of the initial
buildout of the Premises and the Additional Space for Tenant as depicted or
described on the floor plan and scope of work annexed hereto as Exhibit D and
made a part hereof (the "Scope of Work") and as more fully described in this
Section ("Landlord's Initial Improvements").
13.2. Neither the recommendation or designation of an architect nor the
approval of the Scope of Work by Landlord shall be deemed to create any
liability on the part of Landlord with respect to the design, functionality or
specifications set forth in the Scope of Work.
13.3. Provided this Lease is in full force and effect and Tenant is not
in default hereunder, Landlord shall pay the cost of Landlord's Initial
Improvements made to the Premises and the Additional Space as depicted on the
Scope of Work, as approved by Landlord or Landlord's Consultant, or in such
change orders as are approved in writing by Landlord or Landlord's Consultant,
to the extent and only to the extent the cost of such work shall not exceed
Landlord's Contribution. Tenant shall be responsible for and pay all other
costs.
13.4. In the event the cost of Landlord's Initial Improvements exceeds
Landlord's Contribution ("Tenant's Extra Cost"), Tenant shall be responsible for
and pay for such extra cost in full on the date of the execution and delivery of
this Lease by Tenant. Time shall be of the essence with respect to Tenant's
obligations hereunder.
13.5. Landlord shall not be responsible or liable for any delay in
substantially completing Landlord's Initial Improvements as a result of any act,
neglect, failure or omission of Tenant, its agents, servants, employees,
contractors, or sub-contractors ("Tenant Delay"). Tenant Delay includes without
limitation any of the following:
13.5.1. Tenant's request for materials, finishes or
installations which are not readily available at the time Landlord is ready to
install same; or
13.5.2. Tenant's request for changes in the Scope of Work
("Revisions"); or
13.5.3. the performance of work by a person, firm or
corporation employed by Tenant and delays in the completion of the said work by
said person, firm or corporation; or
13.5.4. Tenant's failure to pay timely for Tenant's Extra Cost
or the cost of Revisions. If the anticipated date of substantial completion of
Landlord's Initial Improvements ("Substantial Completion Date"), as more
particularly described in Section 13.11, shall be delayed by reason of Tenant
Delay, the Premises shall be deemed substantially completed for the purposes of
the Commencement Date as of the date that the Premises would have been
substantially completed but for any such Tenant Delay as determined by Landlord
in
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its reasonable discretion.
13.6 Tenant shall pay to Landlord a sum equal to any additional cost to
Landlord in completing Landlord's Initial Improvements resulting from any Tenant
Delay. Any such sums shall be paid to Landlord within ten (10) days after
Landlord submits an invoice to Tenant therefor. Such costs shall be collectible
in the same manner as Additional Rent whether or not the Lease Term shall have
commenced, and if Tenant defaults in the payment of such cost, Landlord shall
have no obligation to continue the performance of Landlord's Initial
Improvements until Tenant shall have cured such default.
13.7. Except as hereinafter provided, neither Tenant nor its agents,
employees, invitees or independent contractors shall enter the Premises or the
Additional Space during the performance of Landlord's Initial Improvements.
Tenant shall have the right from time to time to inspect the Premises and the
Additional Space during the course of Landlord's Initial Improvements provided
Tenant shall make a prior appointment with Landlord and/or its contractor at a
mutually convenient time.
13.8. Upon the granting of consent by Landlord or Landlord's
Consultant, which shall not be unreasonably withheld, Tenant or its agents or
contractors may enter the Premises (but not the Additional Space) prior to the
Commencement Date to install Tenant's equipment and/or perform such decorative
or other tenant finishing work as it may desire provided that such work in no
way interferes with the performance of Landlord's Initial Improvements and such
entry shall be deemed under all the terms, covenants and conditions of this
Lease, except the covenant to pay Base Rent. In the event Landlord, in its sole
discretion, determines that the performance by Tenant or any of its agents of
any such installation or Tenant finish work is impeding or impairing in any way
the performance of Landlord's Initial Improvements, then, upon notice to Tenant,
Tenant shall cease or cause the cessation of all such work until the receipt of
notification from Landlord or Landlord's Consultant that Tenant may once again
enter the Premises in order to perform such work. In the event Tenant or
Tenant's agents or contractors shall enter upon the Premises, the Additional
Space or any other part of the Office Building, as may be permitted by Landlord
or Landlord's Consultant, Tenant shall indemnify and save Landlord harmless from
and against any and all loss, liability, damage, cost and expense, including
without limitation, reasonable attorneys' fees and disbursements, claimed or
actually arising from, growing out of or related to (a) any act, neglect or
failure to act of Tenant or anyone entering the Premises, the Additional Space
or Office Building with Tenant's permission, (b) the performance of such
installation or Tenant's finish work, or (c) any other reason whatsoever arising
out of said entry upon the Premises, the Additional Space or Office Building.
The provisions of this Subsection 13.8 shall survive the termination of this
Lease.
13.9. Tenant shall have the right to request Revisions. All Revisions
shall be subject to Landlord's prior written approval, which shall not be
unreasonably withheld provided the Revisions are non-structural in nature.
Landlord shall either approve or disapprove the Revisions within five (5)
business days after submission thereof by Tenant. Without limiting the
generality of the foregoing, no Revision will be approved unless (a) all changes
to and
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modifications from the Scope of Work are circled or highlighted as per standard
industry practices and (b) said Revisions conform with the Landlord's building
standard requirements for construction. Landlord and Landlord's Consultant shall
notify Tenant in writing of the cost of the Revisions, and any Tenant Delay that
the performance of the same may entail. If Tenant agrees with the cost and delay
of such Revisions, Tenant shall acknowledge Tenant's approval in writing within
three (3) business days after Landlord's notice thereof to Tenant. If Tenant
fails to approve of the cost of such Revisions within three (3) business days,
Landlord or Landlord's Consultant shall not make such Revisions. The cost of any
Revisions shall be borne solely by Tenant and shall be paid in full, together
with Tenant's written approval of the cost and delay of such Revisions.
13.10. Landlord shall, subject to Tenant Delays and any other cause
beyond Landlord's reasonable control, use due diligence to complete Landlord's
Initial Improvements as soon as may be reasonably practicable without additional
expense to Landlord, such as overtime construction expense, but Landlord shall
not be liable in any manner whatsoever for its failure to do so by any
particular date.
13.11. Landlord shall notify Tenant of the Substantial Completion Date
of the Premises at least five (5) days prior thereto. The phrase "substantial
completion" shall mean that, with the exception of punch-list items, Landlord's
Initial Improvements shall have been completed in accordance with the Scope of
Work and all mechanical systems serving or affecting the Premises shall then be
in working order. Landlord and Tenant shall thereupon set a mutually convenient
time for Tenant, Tenant's architect, and Landlord or Landlord's Consultant to
inspect the Premises, at which time Tenant's architect shall prepare and submit
to Landlord a punch list of items to be completed. Upon completion of the
inspection, Tenant's Construction Agent shall acknowledge in writing that
substantial completion has occurred, subject to any punch list items to be
completed. Landlord shall diligently complete the approved work on the punch
list items. In the event Tenant shall fail to confer with Landlord with respect
to the substantial completion of Landlord's Initial Improvements within five (5)
days of Landlord's notice setting forth the Substantial Completion Date, (a)
Landlord's Initial Improvements shall be deemed completed and satisfactory in
all respects, and (b) the Commencement Date shall be deemed to have occurred on
the date set forth in Landlord's notice as the Substantial Completion Date.
13.12. In the event of any dispute as to when and whether the work
performed or required to be performed by Landlord has been substantially
completed, the certificate of an A.I.A. registered architect or a temporary or
final certificate of occupancy or completion (as may be applicable) issued by
the local governmental authority shall be conclusive evidence of such
completion, effective on the date of the issuance of such certificate to Tenant.
14. NO REPRESENTATIONS BY LANDLORD: Tenant acknowledges that no representation
as to the condition of the Premises, Office Building or Project, or as to any
manner related to this Lease, have been made by Landlord, unless such are
expressly set forth
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in this Lease.
15. ACCEPTANCE OF PREMISES: Tenant accepts the Premises in its present "as is"
condition as of the date hereof subject only to the completion of Landlord's
Initial Improvements and Tenant acknowledges that the Premises are suited for
the Permitted Use. The taking of possession of the Premises for Tenant's use
shall be conclusive evidence as against Tenant that, at the time such possession
was so taken, the Premises and the Office Building were in good and satisfactory
condition and that Landlord's Initial Improvements were satisfactorily
completed.
16. REPAIRS:
16.1. Tenant shall, at Tenant's own expense, keep the Premises in good
condition and repair during the Lease Term, except only for reasonable wear and
tear and damage by fire or other casualty not caused by Tenant's negligence.
Tenant shall, at Tenant's expense but under the direction of Landlord, promptly
repair, and make replacements where necessary, any injury or damage to the
Office Building and the Project, including but not limited to, any and all
broken glass, caused by Tenant, Tenant's employees, agents, contractors, and
licensees. Landlord is not and shall not be required to make any improvements to
or repairs of any kind or character on the Premises or the Office Building
during the Lease Term, provided, however, Landlord shall perform such repairs as
are necessary for normal maintenance of the Office Building's structure, roof,
exterior windows, plumbing and air conditioning, electrical and mechanical
systems, including any such Office Building system located in, servicing or
passing through the Premises (except if any such repairs are necessitated as a
result of the negligence or misconduct of Tenant or its agents, employees,
contractors or invitees).
16.2. Tenant shall give Landlord prompt notice of any and all accidents
to or defects in any plumbing, electrical, air-cooling or heating system located
in, servicing or passing through the Premises, or in any part or appurtenance of
the Premises. There shall be no allowance to Tenant for a diminution of rental
value and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant or others making,
or failing to make, any repairs, alterations, additions or improvements in or to
any portion of the Office Building, or the Premises, or in or to fixtures,
appurtenances, or equipment thereof.
16.3. If the Premises are or become infested with vermin due to
Tenant's acts or omissions, Landlord, at Tenant's expense, shall cause the same
to be exterminated from time to time to the satisfaction of Landlord.
16.4. If Tenant fails after ten (10) days' notice to proceed with due
diligence to make repairs required to be made by Tenant, the same may be made by
Landlord, at the expense of Tenant, and the expenses thereof incurred by
Landlord shall be collectible by Landlord as Additional Rent within five (5)
days after rendition of a bill or statement therefor.
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17. ALTERATIONS:
17.1. Tenant shall make no alterations, additions, or improvements to
the Premises ("Alterations") without the written consent of Landlord. Landlord
agrees not to withhold unreasonably its consent to any Alterations which are
nonstructural and which do not affect the Office Building's mechanical systems
or services, proposed to be made by Tenant to adapt the Premises for the
Permitted Use, provided that (i) Tenant furnishes acceptable payment and
performance bonds, (ii) the plans and specifications showing such Alterations
are prepared by an engineer or architect reasonably approved by Landlord, (iii)
such Alterations are performed only by contractors or mechanics reasonably
approved by Landlord, (iv) such Alterations do not affect any part of the Office
Building other than the Premises, (v) such Alterations do not adversely affect
any service required to be furnished by Landlord to Tenant or to any other
tenant or occupant of the Office Building, and (vi) such Alterations do not
reduce the value or utility of the Office Building and are not visible from the
exterior of the Premises or the Common Areas. All Alterations shall be done at
Tenant's expense and at such times and in such manner as Landlord may from time
to time reasonably designate pursuant to the conditions for Alterations
prescribed by Landlord for the Premises. Tenant shall be required to obtain all
appropriate governmental permits and approvals at Tenant's expense prior to the
beginning of any such work in the Premises. All work by Tenant shall be
performed in a good and workmanlike manner, in compliance with all applicable
law, and the General Conditions for Buildout attached as Exhibit "E".
17.2. Prior to making any Alterations, Tenant, (i) shall submit to
Landlord or any person Landlord designates to act for it for the purposes
described in this Section 17 ("Landlord's Consultant") detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings stamped by a professional engineer or architect licensed in the State
of Florida and reasonably approved by Landlord) for each proposed Alteration and
shall not commence any such Alterations without first obtaining Landlord's
approval of such plans and specifications, (ii) shall pay to Landlord all costs
and expenses incurred by Landlord (including the cost of Landlord's Consultant)
in connection with Landlord's review of Tenant's plans and specifications, (iii)
shall, at Tenant's expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies, and (iv) shall
furnish to Landlord duplicate original policies of worker's compensation
insurance (covering all persons to be employed by Tenant, and Tenant's
contractors and subcontractors in connection with such Alterations) and
comprehensive public liability (including property damage coverage) insurance in
such form, with such companies, for such periods and in such amounts as Landlord
may reasonably require, naming Landlord and its agents as additional insureds.
Upon completion of such Alterations, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alterations required by any governmental
or quasi-governmental bodies and shall furnish Landlord with copies thereof. All
Alterations shall be made and performed in accordance with the Rules and
Regulations and in accordance with the Americans with Disabilities Act of 1990,
including but not limited to the accessibility provisions thereof; all materials
and equipment to be incorporated in the Premises as a result of all Alterations
shall be new and first quality; and
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no such materials or equipment shall be subject to any lien, encumbrance,
chattel mortgage or title retention or security agreement.
17.3. All contractors and technicians performing work for Tenant within
the Premises, Office Building or Project shall be referred to Landlord for
approval before performing such work. This provision shall apply to all work
including, but not limited to, installation of telephones, telegraph and telex
equipment, electrical devices and attachments, and all installations affecting
floors, walls, windows, doors, ceilings, equipment or any physical feature of
the Office Building, the Premises or the Project. None of this work shall be
done by Tenant without Landlord's prior written approval, which shall not be
unreasonably withheld.
17.4. Tenant shall not, at any time prior to or during the Lease Term,
directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer in the Premises, whether in connection with any Alteration
or otherwise, if, in Landlord's sole discretion, such employment will interfere
or cause any conflict with other contractors, mechanics, or laborers engaged in
the construction, maintenance or operation of the Office Building by Landlord,
Tenant or others. In the event of any such interference or conflict, Tenant,
upon demand of Landlord, shall cause all contractors, mechanics or laborers
causing such interference or conflict to leave the Office Building and the
Project immediately.
17.5. All Alterations made to or installed on the Premises by Tenant or
by Landlord for Tenant's benefit (including, but not limited to, floor covering,
wall covering, wall and ceiling lighting fixtures, carpets, drapes and drapery
hardware) shall, at Landlord's option, be deemed to be the property of Landlord
upon the Expiration Date or earlier termination of this Lease. No later than the
expiration of the Lease Term, Tenant shall, if Landlord so requests, remove all
of Tenant's personal property and Alterations and Tenant shall repair all injury
done by or in connection with the installation or removal of said property and
surrender the Premises (together with all keys to the Premises) in as good a
condition as they were at the beginning of the Lease Term, reasonable wear and
tear excepted, and Tenant shall restore the Premises to the condition existing
as of the date hereof (including finishes), unless Landlord expressly agrees to
the contrary. All property of Tenant, whether part of Alterations or otherwise,
remaining on the Premises after the expiration of the Lease Term shall be deemed
conclusively abandoned and may, at the election of Landlord, either be retained
as Landlord's property or be removed by Landlord, and Tenant shall reimburse
Landlord for the cost of removing the same, for the repair of damage caused by
such removal and for restoring the Premises as required hereunder, subject,
however, to Landlord's right to require Tenant to remove any Alterations
pursuant to this Section 17.
17.6. Landlord shall have the right and privilege to make and build
additions to the Office Building, and make such alterations and repairs to the
Office Building or to participate in or consent to any additions, alterations or
improvements on or to the Project, as it may deem wise and advisable without any
liability to Tenant arising from, growing out of or related to such additions,
alterations and repairs.
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18. CONSTRUCTION LIENS:
18.1. Tenant shall pay all liens of contractors, subcontractors,
mechanics, laborers, materialmen, and other items of like character, and shall
indemnify Landlord against all expenses, costs and charges, including bond
premiums for release of liens and attorneys' fees, disbursements and costs
reasonably incurred, at the trial or appellate level, in and about the defense
of any suit in discharging the Premises or the Office Building or any part of
them from any liens, judgments, or encumbrances caused or suffered by Tenant or
in any other way arising from, growing out of or related to any Alterations made
by or on behalf of Tenant to the Premises except if paid directly by Landlord,
and for payment of which Landlord is solely responsible. In the event any such
lien shall be made or filed, Tenant shall bond against or discharge the lien
within five (5) days after the date Tenant first becomes aware of the same. The
provisions of this Subsection 18.1 shall survive the termination of this Lease.
18.2. Tenant shall not have any authority to create any liens for labor
or material on Landlord's or other third party's interest in the Premises or the
Office Building or the Project and all persons contracting with Tenant for the
destruction or removal of any facilities or other improvements on or about the
Premises, and all materialmen, contractors, subcontractors, mechanics, and
laborers are hereby charged with notice that they must look only to Tenant and
to Tenant's interests in the Premises to secure the payment of any bill for work
done or material furnished at the request or instruction of Tenant. Tenant
shall, prior to any construction, provide such assurances to Landlord (including
but not limited to waivers of lien, surety company payment and performance bonds
and personal guarantees) as Landlord shall require to protect Landlord against
any loss from any mechanics', laborers' or materialmen's liens, or other liens
and, further, shall comply with Florida Statutes, Section 713.10, as amended
from time to time, by notifying all of its contractors that the interest of
Landlord shall not be subject to liens for improvements made by Tenant and shall
provide proof of such notices to Landlord in form satisfactory to Landlord.
19. INDEMNIFICATION:
19.1. In consideration of the Premises being leased to Tenant for the
above-described rent, Tenant covenants and agrees that (a) Tenant, at all times,
does and shall indemnify, defend and hold harmless Landlord from all losses,
claims, damages, injuries, liabilities, litigation and other expenses, and
attorneys' fees, disbursements and costs, including those for appellate matters,
which may arise or be claimed against Landlord and be in favor of any persons,
firms or corporations, for any injuries or damages to the person or property of
any persons, firms or corporations, consequent upon, arising from, growing out
of or related to (i) the use or occupancy of the Premises by Tenant, (ii) any
acts, omissions, neglect or fault of Tenant, its agents, contractors, employees,
licensees, visitors, customers, patrons or invitees, (iii) Tenant's failure to
comply with any laws, statutes, ordinances, codes or regulations as provided in
this Lease or (iv) any default by Tenant in the observance or performance of any
obligation set forth in this Lease to be observed or performed by Tenant; and
(b) Landlord shall not be liable to
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Tenant for any damages, losses or injuries to the persons or property of Tenant
which may be caused by the acts, neglect, omissions or faults of any persons,
firms or corporations, except when such injury, loss or damage results directly
from the gross negligence or willful malfeasance of Landlord, its agents,
servants or employees acting in the scope of their agency or employment.
19.2. In case Landlord shall be made a party to any litigation
commenced against Tenant, then Tenant shall protect and hold Landlord harmless
and shall pay all costs, expenses and reasonable attorneys' fees, disbursements
and costs incurred or paid by Landlord in connection with such litigation and
any appeal thereof.
19.3. Tenant agrees that all personal property brought into the
Premises, the Office Building or the Project by Tenant, its employees, servants,
agents, and licensees shall be at the sole risk of Tenant, such employees,
servants, agents and licensees. Landlord shall not be liable for theft of any
such property or of any money deposited in the Premises, the Office Building or
the Project, or for any damages to such property; such theft or damage shall be
the sole responsibility of Tenant, except when such theft or damage results
directly from the gross negligence or willful malfeasance of Landlord, or its
agents, servants or employees acting in the scope of their agency or employment.
Tenant shall not rely on Landlord nor hold Landlord responsible for provision of
security or maintenance of insurance of any kind. The provisions of this Section
19 shall survive the termination of this Lease.
20. INSURANCE:
20.1. Tenant shall not do or permit to be done any act or thing upon
the Premises or elsewhere in the Office Building which will invalidate or be in
conflict with any insurance policies covering the Office Building and the
fixtures and property therein. Tenant at its own expense shall comply with all
rules, orders, regulations, or requirements of the Board of Fire Underwriters,
or any other similar body having jurisdiction. If Landlord's insurance premiums
exceed the standard premium rates because the nature of Tenant's operations on
the Premises, then Tenant shall, upon receipt of appropriate invoices from
Landlord, reimburse Landlord for such increase in premiums as Additional Rent.
20.2. At all times during the Lease Term, Tenant shall keep all
Alterations, construction and other improvements furnished and installed in the
Premises, whether existing in the Premises on the date hereof or hereinafter
installed in the Premises by Landlord or Tenant, and all of the furniture,
fixtures, equipment and all other personal property and inventory of Tenant
located therein, and any other property in the care, custody and/or control of
Tenant (fixed or otherwise), including, but not limited to, all items on which
Landlord has a lien under the terms of this Lease, by statute, in law or in
equity, insured against loss or damage by fire or other casualty on an "all
risk" form, in an amount equal to not less than one hundred percent (100%) of
the full replacement value of such items, written by one or more responsible
insurance companies acceptable to Landlord and licensed to do business in the
State of Florida, naming
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Tenant as the insured, and Landlord as loss payee, as its interest may appear.
Each such policy shall contain a replacement cost endorsement and shall be
non-cancelable for any cause without first giving Landlord thirty (30) days'
prior written notice.
20.3. At all times during the Lease Term, Tenant shall maintain in
force a policy or policies of commercial general liability insurance, including,
without limitation, insurance covering Tenant's contractual obligations under
Section 21.2(i), written by one or more responsible insurance companies rated
Best A+ or better and naming a financial rating of at least "13", acceptable to
Landlord and licensed to do business in the State of Florida, in form acceptable
to Landlord, insuring Tenant and naming Landlord and Landlord's managing agent
as additional insureds and naming Landlord as the certificate holder, against
loss of life, bodily injury, personal injury and/or property damage with respect
to the Premises and the business operated by Tenant in the Premises, in which
the limit of general liability shall be not less than One Million and No/100
Dollars ($1,000,000.00) combined single limit bodily injury and property damage
liability on an occurrence basis with no policy aggregate or a general aggregate
that applies separately to the leased premises herein, or such amount as
Landlord may require from time to time in its reasonable discretion. Tenant
shall also maintain during the Term a policy of worker's compensation insurance
providing statutory benefits for Tenant's employees and employer's liability.
Each such policy shall be non-cancelable for any cause without first giving
Landlord thirty (30) days' prior written notice. Tenant's maintaining insurance
as required under the Lease shall not diminish Tenant's liability under this
Lease.
20.4. A copy of the insurance policies required in this Section 20 or
an acceptable certificate of such insurance shall be delivered to Landlord on or
before the Commencement Date. Any such certificate of insurance shall include
the named insured, additional insured, carrier, policy number, limits of
liability, effective date, the name of the insurance agent and its telephone
number. Evidence of renewal of such policies shall be delivered to Landlord no
later than thirty (30) days before the expiration of each policy. If such
evidence is not so delivered to Landlord, Landlord may, but shall not be
obligated to, obtain all or a portion of such insurance, all costs of which
shall be paid by Tenant to Landlord as Additional Rent promptly upon Landlord's
giving notice to Tenant of such costs.
20.5. The parties hereto shall procure an appropriate clause in, or
endorsement on, any "all-risk" property insurance covering the Premises and the
Office Building, including the Alterations, construction and other improvements
installed therein, as well as the furniture, fixtures, equipment and other
personal property and inventory located therein, pursuant to which the insurance
companies waive subrogation or consent to a waiver of right of recovery, and
each party hereby agrees that it will not make any claim against or seek to
recover from the other for any loss or damage to its property or the property of
others resulting from fire or other hazards covered by such "all-risk" property
insurance policies to the extent that such loss or damage is actually
recoverable under such policies, exclusive of any deductibles. Such waiver will
not apply should any loss or damage result from one of the parties' gross
negligence or willful misconduct. If the payment of an additional premium is
required for the inclusion of such waiver of subrogation provision, each party
shall advise the other of the amount of any such
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additional premiums and the other party shall pay the same. It is expressly
understood and agreed that Landlord will not carry insurance on the Alterations,
construction and other improvements presently existing or hereinafter installed
within the Premises or on Tenant's fixtures, furnishings, equipment, personal
property or inventory located in the Premises or insurance against interruption
of Tenant's business.
21. DAMAGE OR DESTRUCTION:
21.1. If the Premises or any part of the Office Building shall be
damaged by fire or other casualty, and if such damage does not render
twenty-five percent (25%) or more of the Premises untenantable, then Landlord
shall proceed to repair and restore the Premises to its condition preceding the
damage, subject to provisions of this Section 21. If the Premises is damaged by
fire or other casualty and twenty-five percent (25%) or more of the Premises is
rendered untenantable or if the Office Building shall be damaged by fire or
other casualty such that, in Landlord's opinion, substantial alteration or
construction of the Office Building shall be required, then Landlord shall,
within ninety (90) days from the date of such casualty and in good faith,
estimate the length of time required substantially to complete the repairs and
restoration of the damage and notify Tenant of such estimate. If the estimate is
for more than one hundred eighty (180) days from date of casualty, then Landlord
may terminate this Lease. If the estimate is for more than two hundred seventy
(270) days, and Tenant cannot make substantial use of the majority of the
balance of the Premises after such fire or other casualty, then either Landlord
or Tenant may terminate this Lease. In either event, the termination shall be
effective as of the later of the date of the notice of termination or the date
Tenant vacates the Premises and removes all of its property therefrom. Landlord
may give its notice of termination simultaneously with its estimate; Tenant
shall give its notice of termination within twenty (20) days of its receipt of
Landlord's estimate.
21.2. If this Lease is not terminated as provided in Subsection 21.1,
Landlord shall proceed with reasonable diligence to repair and restore the
Office Building and/or the Premises to their condition preceding the damage (or,
if Landlord elects, as of the Commencement Date), subject to the provisions of
this Section 21, to reasonable delays for insurance adjustments, to receipt of
insurance proceeds, to Force Majeure, and to then-applicable building and zoning
laws, codes and regulations. Landlord shall have no liability to Tenant, and
Tenant shall not be entitled to terminate this Lease, if such repairs and
restoration are not in fact completed within Landlord's estimated time period,
so long as Landlord shall have proceeded with reasonable due diligence.
Notwithstanding anything to the contrary in this Lease, (a) if any damage shall
occur during the last two (2) Lease Years, Landlord shall have the option to
terminate this Lease by written notice to Tenant and in such event this Lease
shall terminate on the later of the date of the notice of termination or the
date Tenant vacates the Premises and removes all of its property therefrom and
(b) Landlord shall not be obligated to repair or restore the Premises or the
Office Building if a holder of a mortgage or underlying leasehold applies
proceeds of insurance to the loan or lease payment balance, and the remaining
proceeds, if any, available to Landlord are insufficient to pay for such repair
or restoration. Wherever in this
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Section 21 reference is made to restoration of the Premises, (i) Tenant's
obligation shall be as to all property within the Premises, including Tenant's
furniture, fixtures, equipment and other personal property and inventory and any
and all Alterations, construction and other improvements presently existing or
hereinafter made to the Premises including Landlord's Initial Improvements and
(ii) Landlord's obligation, if any, shall be as to the shell, which constitutes
the structure of the Office Building, and the building-wide mechanical,
electrical, plumbing, air conditioning and other building systems up to the
point of connection into the Premises. Accordingly, it is expressly understood
and agreed by Tenant that Landlord shall not have any obligation to repair,
restore or replace any furniture, fixtures, equipment or other personal property
and inventory of Tenant, or any Alterations, construction or other improvements
presently existing or hereinafter made by on behalf of Tenant within the
Premises, including Landlord's Initial Improvements, all of which shall be
restored and replaced at Tenant's sole cost and expense.
21.3. During any time that the Premises is materially damaged due to
causes set forth in this Section 21, and as a result thereof Tenant is unable to
occupy or use the damaged portion of the Premises in its normal course of
business, the Base Rent and Additional Rent shall be abated in an amount bearing
the same ratio to the total of such rent for such period as the unusable portion
of the Premises bears to the entire Premises. Full Base Rent and Additional Rent
shall recommence upon substantial completion of Landlord's restoration
obligations under this Section 21. If Lease is terminated as set forth in this
Section 21, all Base Rent and Additional Rent under this Lease shall be
equitably adjusted, and all payments of Base Rent and Additional Rent made in
advance by Tenant shall be refunded to Tenant.
21.4. Landlord's obligation to repair or rebuild, and Tenant's right to
rent abatement, as described in this Section 21, are only effective provided the
damage or destruction is not due to the intentional or negligent act or omission
of Tenant, its agents, employees, licensees, or invitees. During any period of
Tenant's repair and restoration following substantial completion of Landlord's
repair and restoration work, Base Rent and Additional Rent shall be payable as
if said fire or other casualty had not occurred.
22. EMINENT DOMAIN:
22.1. If any part of the Premises, the Office Building or the Project,
other than a part not interfering with maintenance, operation or use of the
Premises or the Office Building, is taken by condemnation or eminent domain
(including purchase in lieu of condemnation) during the Lease Term, Landlord may
elect, by giving notice to Tenant within ninety (90) days of the date of such
taking, to terminate this Lease or to continue it in effect.
22.2. If fifty (50%) percent or more of the Premises is taken by
condemnation or eminent domain (including purchase in lieu of condemnation)
which renders the entire Premises unusable for its intended use, or if only part
of the Office Building or the Project is taken by condemnation or eminent domain
(including purchase in lieu of condemnation) during the Lease
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Term, such that the maintenance, operation or use of the Premises is materially
adversely affected thereby for the balance of the Lease Term or access to the
Office Building is permanently obstructed, Tenant may elect, by giving notice to
Landlord within thirty (30) days of Tenant's receiving notice of such taking
from either Landlord or the taking authority, to terminate this Lease. If all of
the Premises is taken by condemnation or eminent domain, this Lease shall
terminate on the date of taking.
22.3. If there is a taking as described in this Section 22 which does
not result in the Lease being terminated, but which renders a portion of the
Premises permanently unusable for its intended use, the Base Rent and Additional
Rent shall be reduced in the proportion of the area of the Premises rendered
unusable bears to the entire Premises. If this Lease is not terminated pursuant
to this Section 22, Landlord shall proceed with reasonable diligence to repair
and restore those portions of the Premises, the Office Building and the Project
that Landlord is required to maintain and repair under the Lease, to their
condition preceding such taking, subject to the provisions of this Section 22,
Force Majeure and to the then-applicable building and zoning laws, codes and
regulations and Tenant shall repair and restore those portions of the Premises
that Tenant is required to maintain and repair under this Lease. Notwithstanding
the foregoing, Landlord shall not be obligated to repair or restore the
Premises, the Office Building or the Project if a holder of a mortgage or
underlying leasehold applies the sums awarded for the taking to the loan or
lease payment balance, and the remaining award, if any, available to Landlord is
insufficient to pay for such repair or restoration. If this Lease should
terminate under any provisions of this Section 22, Base Rent and Additional Rent
shall be payable up to the date of termination and all payments of Base Rent or
Additional Rent made in advance by Tenant shall be refunded to Tenant.
22.4. All sums awarded (or agreed upon between Landlord and the
condemning authority) for the taking of the interest of Landlord or Tenant or
both of them, whether as damages or as compensation, and whether for partial or
total condemnation, will be the property of Landlord and Tenant hereby assigns
to Landlord, Tenant's claim for the value of its leasehold interest. Tenant may,
however, pursue any claim of business damages or cost of relocation against the
condemning authority, so long as such claim will not diminish Landlord's award.
23. PARKING: Landlord shall make arrangements for Tenant to be provided with
covered parking spaces in the Parking Garage at a ratio of one (1) parking space
for each 1,000 rentable square feet leased by Tenant from time to time under
this Lease. In addition, Landlord agrees to assist Tenant in obtaining
additional parking spaces in the Parking Garage from the DOSP (as hereinafter
defined) so that Tenant shall have a total of sixteen (16) parking spaces
available for Tenant's use so long as Tenant continues to lease a minimum of
8,196 rentable square feet in the Office Building; provided, however, Landlord
shall have no liability to Tenant hereunder if the DOSP fails to make such
additional parking spaces available for Tenant's use. Tenant shall pay the
Parking Garage operator rent for each such space at the designated rate, as such
rate may be adjusted from time to time. As of the date hereof, the Parking
Garage is operated by the Department of Offstreet Parking of the City of Miami
(the "DOSP"), and Tenant agrees to
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make such payments to the DOSP directly and to deal with the DOSP directly on
all matters relating to the Parking Garage. Landlord shall not be liable for any
loss or damage of any nature whatsoever, including, but not limited to, personal
injury or damage to, or theft of, automobiles or other vehicles or the contents
thereof, while in or about the Parking Garage, or resulting from the operation
thereof, nor shall Landlord be liable in the event such parking spaces are no
longer available for Tenant's use. If, at any time during the Lease Term, Tenant
shall notify Landlord or the DOSP (or its successor) that it requires fewer than
the number of parking spaces allocated to Tenant as hereinabove provided, Tenant
shall be conclusively deemed to have forfeited its rights to the unused parking
spaces and thereafter Landlord shall not be obligated to increase the number of
spaces to the original number so allocated.
24. ESTOPPEL STATEMENT: Tenant shall from time to time, upon not less than ten
(10) days' prior request by Landlord, a purchaser of Landlord's interest or any
mortgagee, deliver to Landlord or a party designated by Landlord or any
mortgagee, as the case may be a statement in writing certifying (a) that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease as modified is in full force and effect and
stating the modifications); (b) the dates to which the Base Rent, Additional
Rent and other charges have been paid; (c) that Landlord is not in default under
any provisions of this Lease (or, if in default, the nature of the default in
detail); (d) the Commencement and Expiration Dates of this Lease and the annual
Base Rent and current Additional Rent required to be paid by Tenant under this
Lease; (e) that Tenant accepts the Premises as being delivered in accordance
with the terms of this Lease, or if there are outstanding items or Landlord
obligations, Tenant will so enumerate those items or obligations in said
estoppel; and (f) any other accurate statements or certifications regarding the
status of this Lease reasonably required by Landlord or its mortgagee or
prospective mortgagee or other lender or purchaser.
25. SUBORDINATION OF LEASE:
25.1. This Lease is and shall be subject and subordinate to any
mortgage or lease now or hereafter encumbering or relating to the Office
Building or the Project, and to any amendment, modification, renewal or
extension of any such mortgage or lease. This provision shall be self-operative
without the execution of any further instruments. Notwithstanding the foregoing,
however, Tenant shall, within ten (10) days of request (oral or written) by
Landlord, execute any instruments which Landlord may deem desirable to evidence
the subordination of this Lease to any and all such mortgages and leases. If any
underlying lease or mortgage is terminated or foreclosed or if Landlord's
interest is transferred due to any matter related to such lease or mortgage,
this Lease shall not be terminable by Tenant by reason of such termination or
foreclosure or transfer.
25.2. In the event of any act or omission by Landlord, if any, which
would or may give Tenant the right to diminish, abate or suspend rent or
terminate this Lease or to claim a partial or total eviction, Tenant shall not
exercise any such right until:
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25.2.1. Tenant has given written notice of any such act or
omission to the holder of any leasehold mortgage or of any fee mortgage and to
any over landlord whose names and addresses have been furnished to Tenant by
notice in the manner described in Section 35; and
25.2.2. A reasonable period of time for remedying such act or
omission shall have elapsed following receipt of such notice during which the
parties to whom such notice has been given, or any of them, after the receipt of
such notice, has not commenced with reasonable diligence to remedy such act or
omission or to cause the same to be remedied.
25.3. If, in connection with obtaining temporary or permanent financing
for the Project or the Office Building or both or any part of them or of any
ground or underlying lease, any such lender shall request reasonable
modifications of this Lease as a condition to such financing, Tenant agrees that
Tenant will not unreasonably withhold, delay or defer the execution of an
agreement of modification of this Lease, provided such modifications do not
increase the financial obligations of Tenant under this Lease or materially
adversely affect Tenant's leasehold interest or Tenant's reasonable use and
enjoyment of the Premises.
25.4. Notwithstanding and in addition to all other provisions of this
Lease, Landlord and Tenant acknowledge that the Project, the Office Building and
the Premises are subject to the terms of the Miami Lease. Tenant agrees not to
do anything or fail to do anything which would be a violation of or breach the
Miami Lease. If at any time Landlord's obligations as lessee under the Miami
Lease require Landlord to modify any of its obligations under or any of the
terms of this Lease, then this Lease shall automatically be modified
accordingly. Landlord shall provide Tenant with a copy of the Miami Lease for
review at Landlord's office during regular business hours.
26. ATTORNMENT:
26.1. If the lessor of a superior lease or the holder of a superior
mortgage (or any nominee thereof) shall be the transferee of the rights of
Landlord under this Lease, or if the interests of Landlord under this Lease
shall be transferred to any person or entity in any way either voluntarily or by
reason of foreclosure or other proceedings for enforcement of any mortgage or
lease encumbering all or part of the Project, the Office Building or the
Premises, Tenant shall be bound to such transferee ("Purchaser") for the balance
of the Lease Term, and any extensions or renewals of this Lease which may be
effected in accordance with the terms and provisions of this Lease with the same
force and effect as if Purchaser were the landlord under this Lease; Tenant
agrees to attorn to Purchaser, including the mortgagee under any such mortgage
and the lessor under any such lease if it be Purchaser, as its landlord, said
attornment to be effective and self-operative without the execution of any
further instruments upon Purchaser succeeding to the interest of Landlord under
this Lease. Notwithstanding the provisions of the foregoing sentence, Tenant
shall, within ten (10) days of request of Landlord or the holder of any such
lease or mortgage, execute and deliver any instrument that such successor
landlord may request to evidence such attornment. Tenant specifically agrees
that
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upon a termination of the Miami Lease and upon request of the lessor under that
Lease (the "City"), Tenant shall attorn to the City and shall execute and
deliver such instrument as the City may require to confirm such attornment.
Tenant's agreement to attorn to the City is given in this Lease for the benefit
of, and shall be deemed an agreement with, the City, provided the City executes
an instrument, which may be the Miami Lease, in which the City agrees that, in
the event of a termination of the Miami Lease, the possession of Tenant and the
enjoyment of all rights and privileges by Tenant under this Lease shall not be
disturbed so long as Tenant agrees to attorn to the City.
26.2. In the event of any transfer of Landlord's interests, Landlord
shall be released and relieved from all liability and responsibility thereafter
accruing to Tenant under this Lease or otherwise and the Purchaser shall be
liable and responsible to Tenant in respect to all obligations of Landlord under
this Lease accruing from and after the date of such transfer.
26.3. The rights given to the Purchaser as successor landlord include
any successor landlords who derive title through a superior mortgagee's
foreclosure sale or deed in lieu of foreclosure. Upon attornment by Tenant to
such successor landlord, this Lease shall continue in full force and effect as
if it were a direct lease, for the balance of the Lease Term (including option
or extension terms, if any), between the successor landlord and Tenant upon all
of the terms, conditions and covenants as are set forth in this Lease except
that the successor landlord, directly or indirectly through foreclosure of a
superior mortgage or a deed in lieu thereof, shall not:
26.3.1. have any liability for refusal or failure to perform
or complete any Alterations, construction, or other improvements to the Premises
or other portions of the Office Building;
26.3.2. be obligated to repair, restore, replace, or rebuild
the Office Building or the Premises, in case of total or substantially total
damage or destruction, beyond such repair, restoration, and/or rebuilding as can
reasonably be accomplished with the net proceeds of insurance actually received
by, or made available to, the successor landlord;
26.3.3. be liable for any previous act or omission of Landlord
under this Lease; or
26.3.4. be bound by any previous modification of this Lease,
not expressly provided for in this Lease, or by any previous prepayment of more
than one month's rent, unless such modification or prepayment shall have been
expressly approved in writing by the lessor of the superior lease or the holder
of the superior mortgage through or by reason of which the successor shall have
succeeded to the rights of Landlord under this Lease.
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27. ASSIGNMENT AND SUBLETTING:
27.1. Tenant shall not make or permit an assignment, pledging,
mortgaging, encumbrance, subletting or use (whether for desk space, mailing
privileges or otherwise) by parties other than Tenant, of all or a portion of
the Premises or of Tenant's interest in this Lease (a "Transfer"), without the
prior written consent of Landlord in each instance. Landlord may unreasonably
withhold its consent if Landlord exercises its rights under Subsection 27.3 or
if the Transfer would create a mortgage or other lien on either the Premises or
Tenant's interest in this Lease. However, Landlord's consent to an assignment or
sublease or occupancy of a portion of the Premises by a third party shall not be
unreasonably withheld, provided that the requirements of Subsection 27.4 and
other subsections of this Section 27 are met. Any Transfer in contravention of
the provisions of this Section 27 shall be void.
27.2. If Tenant desires to Transfer this Lease or all or part of the
Premises, Tenant shall give notice thereof to Landlord, accompanied by (a) a
letter signed by the proposed assignee or sublessee setting forth all of the
material business terms of the proposed assignment or sublease, the effective or
commencement date of which shall be not more than one hundred and eighty (180)
days after the giving of such notice; (b) a statement setting forth in
reasonable detail the identity of the proposed assignee, subtenant, or an
occupant or user of the Premises other than Tenant (whether of desk space,
mailing privileges, or otherwise) or other transferee (a "Transferee"), the
nature of its business and its proposed use of the Premises and (c) current
financial information regarding the Transferee.
27.3. The notice pursuant to Subsection 27.2 shall be deemed an offer
from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its
option, (a) sublease the proposed transfer space from Tenant upon the terms and
conditions hereinafter set forth (if the proposed transaction is a sublease or
occupancy), or (b) take an assignment of or terminate this Lease if the proposed
transaction is an assignment of this Lease or a subletting of all or
substantially all of the Premises for the balance of the Lease Term. Said
options may be exercised by Landlord by notice to Tenant at any time within ten
(10) business days after the aforesaid notice has been given by Tenant to
Landlord; during such ten (10) day period Tenant shall not assign this Lease nor
sublet such space to any person. If Landlord exercises its option to take an
assignment of or terminate this Lease in the case where Tenant desires to either
assign this Lease or sublet all or substantially all of the Premises for the
balance of the Lease Term, then this Lease shall end and expire, on the date
contemplated in the proposed assignment or sublease and the Base Rent and
Additional Rent shall be paid and apportioned to such date. If Landlord fails to
exercise either of the options provided for in this Subsection 27.3 within such
ten (10) business day period, Landlord agrees to respond to Tenant's request for
consent of the proposed Transfer within such ten (10) business day period, but
in no event earlier than ten (10) business days after receipt by Landlord of all
of the documents required under Subsection 27.2 of this Lease.
27.3.1. If Landlord exercises its option to sublease the
transfer space or take an assignment of, or terminate this Lease, Landlord shall
be free to, and shall have no
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liability to Tenant if Landlord should, lease or sublease the Premises (or any
part thereof) to Tenant's prospective Transferee. If Landlord exercises its
option to sublet the transfer space, such sublease to Landlord or its designee
(as subtenant) shall be for the same term as that of the proposed subletting and
for the rentals set forth in the proposed sublease (but in no event at a rental
rate per rentable square foot greater than the Base Rent and Additional Rent
then payable pursuant to this Lease) and such sublease:
(a) shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease except
such as are irrelevant or inapplicable, and except as otherwise expressly set
forth to the contrary in this Section 27;
(b) shall be upon the same terms and conditions as
those contained in the proposed sublease (including the term thereof), except
such as are irrelevant or inapplicable and except as otherwise expressly set
forth to the contrary in this Section 27;
(c) shall give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the space covered by such sublease or any part
or parts of such space and to make any and all changes, alterations and
improvements in the space covered by such sublease; and
(d) shall also provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties, (ii)
any assignment or subletting by Landlord or its designee (as the subtenant) may
be for any purpose or purposes that Landlord, in Landlord's uncontrolled
discretion, shall deem suitable or appropriate, (iii) Tenant, at Tenant's
expense, shall and will at all times provide and permit appropriate means of
ingress to and egress from such space so sublet by Tenant to Landlord or its
designee, and (iv) that at the expiration of the term of such sublease, Tenant
will accept the space covered by such sublease in its then existing condition,
subject to the obligations of the sublessee to make such repairs thereto as may
be necessary to preserve the premises demised by such sublease in good order and
condition. If Landlord exercises its option to sublet the transfer space, (x)
Tenant shall be fully released from any and all obligations under this Lease
with respect to the transfer space during the term of the sublease; provided,
however, that, if the rent payable under the sublease is less than the Base Rent
and Additional Rent due under this Lease for the transfer space, Tenant shall be
responsible for such shortfall and (y) Landlord shall indemnify and save Tenant
harmless from all obligations under this Lease as to the transfer space during
the period of time it is so sublet to Landlord. If Landlord exercises its option
to sublet the proposed transfer space, and the construction of demising walls or
other alterations are required to physically separate the subleased space from
the balance of the Premises, Tenant shall make such Alterations at Tenant's
expense. Otherwise, Landlord may make such alterations as may be required or
deemed necessary by Landlord to physically separate the transfer space from the
balance of the Premises and to comply with any legal or insurance requirements
relating to such separation, at Tenant's expense.
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27.3.2. Performance by Landlord, or its designee, under a
sublease shall be deemed performance by Tenant of any similar obligation under
this Lease and any default under any such sublease shall not give rise to a
default under a similar obligation contained in this Lease nor shall Tenant be
liable for any default under this Lease or deemed to be in default hereunder if
such default is occasioned by or arises from any act or omission of the
subtenant under the sublease. Tenant shall have no obligation, at the Expiration
Date or earlier termination of the Lease Term, to remove any alteration,
installation or improvement made in the space subleased by Landlord (or its
designee).
27.4. In the event Landlord does not exercise either option provided to
it pursuant to Subsection 27.3 and providing that this Lease is in full force
and effect and that Tenant is not in default of any of Tenant's obligations
under this Lease (after notice and the expiration of any applicable grace
period) as of the time of Landlord's consent, and as of the effective date of
the proposed assignment or commencement date of the proposed sublease,
Landlord's consent (which must be in writing) to the proposed assignment or
sublease shall not be unreasonably withheld, provided and upon condition that:
27.4.1. Tenant shall have complied with the provisions of
Subsection 27.2 and Landlord shall not have exercised any of its options under
said Subsection 27.3;
27.4.2. In Landlord's reasonable judgment, the proposed
assignee or subtenant or occupant is engaged in a business or activity, which
(a) is in keeping with the then standards of the Office Building, (b) is limited
to the use of the Premises for the Permitted Use, (c) will not violate any
negative covenant as to use contained in any other lease of office space in the
Office Building, and (d) will be for purposes related directly or indirectly to
international banking, law, finance, insurance, transportation, communications,
technology, trade, tourism, import or export business or other business activity
so as to not disqualify Landlord from benefits Landlord may then be receiving
under the Miami Lease for rental for use for "Trade Purposes" (as defined in the
Miami Lease);
27.4.3. The proposed assignee or subtenant or occupant is a
reputable person of good character and with sufficient financial worth
considering the responsibility involved, and Landlord has been furnished with
current financial information, including without limitation, its most recent
financial report.
27.4.4. The form of the proposed sublease or instrument of
assignment or occupancy shall be reasonably satisfactory to Landlord, and shall
comply with the applicable provisions of this Section 27;
27.4.5. There shall not be more than a total of three (3)
occupants (including Tenant, subtenants, assignees or other persons or entities
using space under Tenant) of the Premises;
27.4.6. The proposed subtenant or assignee or occupant shall
not be
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entitled, directly or indirectly, to diplomatic or sovereign immunity and shall
be subject to the service of process in, and the jurisdiction of the courts of
the State of Florida;
27.4.7 Neither (a) the proposed assignee or sublessee nor (b)
any person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee, is then in
occupancy of any part of the Office Building;
27.4.8 The proposed assignee or sublessee is not a person with
whom Landlord has been or is then negotiating to lease space in the Office
Building;
27.4.9 The amount of the aggregate rent to be paid by any
proposed subtenant(s) of the Premises shall not be less than the then current
Market Rent (as hereinafter defined) per rentable square foot for the Premises
as though the Premises were vacant, and the rental and other terms and
conditions of any such sublease are the same as those contained in the proposed
sublease furnished to Landlord pursuant to this Article 27. For the purposes of
this Subsection 27.4.9, the "Market Rent" shall be deemed to mean the then
current and projected rents for spaces in the Office Building which are then for
rent (or, if none, those rented during the prior twelve (12) months) or
projected to be for rent during the applicable sublease term adjusted for any
special conditions applicable to such spaces and leases and for location, length
of term, amount of space and other factors Landlord deems relevant in computing
rent for spaces in the Office Building, including adjustments for anticipated
inflation, fluctuations in market rents and price conditions; and
27.4.10 The proposed occupancy shall not increase the office
cleaning or other requirements or impose an extra burden upon services to be
supplied by Landlord to Tenant.
27.5. Within five (5) days after receipt of a bill therefor, Tenant
shall reimburse Landlord for the reasonable costs that may be incurred by
Landlord in connection with said assignment or sublease, including without
limitation, the costs of making investigations as to the acceptability of the
proposed assignee or subtenant, an administrative fee, and attorneys' fees and
costs incurred in connection with the granting of any requested consent.
27.6. In the event of a Transfer of this Lease, Landlord may collect
rent from the Transferee and apply the net amount collected to the Base Rent or
Additional Rent reserved in this Lease, but no Transfer or collection shall be
deemed a waiver of the provisions of this Lease, the acceptance of the
Transferee as tenant, or a release of Tenant from the further performance by
Tenant of covenants and obligations on the part of Tenant contained in this
Lease. The consent by Landlord to a Transfer shall not in any way be construed
to relieve Tenant from obtaining the express consent in writing of Landlord to
any further Transfer. In no event shall any permitted Transferee transfer its
interest, without Landlord's prior written consent in each instance.
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27.7. If Landlord shall either agree or decline to give its consent to
any proposed Transfer, or if Landlord shall exercise either of its options under
Subsection 27.3, Tenant shall indemnify, defend and hold harmless Landlord
against and from any and all loss, liability, damages, costs, and expenses
(including reasonable attorneys' fees) resulting from any claims that may be
made against Landlord by the proposed Transferee or by any brokers or other
persons claiming compensation in connection with the proposed Transfer.
27.8. In the event that (a) Landlord fails to exercise either of its
options under Subsection 27.3 and consents to a proposed Transfer, and (b)
Tenant fails to execute and deliver the Transfer instrument to which Landlord
consented within ninety (90) days after the giving of such consent, then Tenant
shall again comply with all of the provisions and conditions of Subsection 27.2.
27.9. With respect to each and every Transfer authorized by Landlord
under the provisions of this Lease, it is further agreed that:
27.9.1. No subletting shall be for a term ending later than
one (1) day prior to the Expiration Date;
27.9.2. No Transfer instrument shall be delivered, and no
third party shall take possession of the Premises until an executed counterpart
of such instrument has been delivered to Landlord;
27.9.3. Each Transfer instrument shall provide that it is
subject and subordinate to this Lease and to the matters to which this Lease is
or shall be subordinate, and that in the event of termination, re-entry or
dispossession by Landlord under this Lease, Landlord may, at its option, take
over all of the right, title and interest of Tenant under any Transfer
instrument, and the Transferee shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such Transfer instrument, except
that Landlord shall not (a) be liable for any previous act or omission of Tenant
under such instrument, (b) be subject to any counterclaim, offset or defense,
not expressly provided in such instrument, which theretofore accrued to such
Transferee against Tenant, (c) be bound by any previous modification of such
instrument not expressly consented to in writing by Landlord or by any previous
prepayment of more than one (1) month's Base Rent and Additional Rent or (d) be
obligated to perform any work in the Premises or the Office Building or to
prepare them for occupancy beyond Landlord's obligations under this Lease. The
provisions of this Section 27 shall be self-operative and no further instrument
shall be required to give effect to this provision.
27.10. If Tenant is a corporation other than a corporation whose stock
is listed and traded on a nationally recognized stock exchange, the provisions
of Section 27 shall apply to a transfer (by one or more transfers) of a majority
of the stock of Tenant as if such transfer of a majority of the stock of Tenant
were an assignment of this Lease; but said provisions shall not apply to
transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred,
provided that in any of such
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events (a) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the greater of (1)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer, or (2) the net worth of Tenant herein named on the date of this Lease,
and (b) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction. If Tenant is a partnership, the provisions of Section 27 shall
apply to a transfer (by one or more transferees) of a majority interest in the
partnership, as if such transfer were an assignment of this Lease.
27.11. Any Transfer (other than a sublease) shall be made only if, and
shall not be effective until, the Transferee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance satisfactory to Landlord
whereby the Transferee shall assume the obligations of this Lease on the part of
Tenant to be performed or observed and whereby the Transferee shall agree that
the provisions in Section 27 shall, notwithstanding such Transfer, continue to
be binding upon it in respect of all future Transfers. The original named Tenant
covenants that, notwithstanding any Transfer, whether or not in violation of the
provisions of this Lease, and notwithstanding the acceptance of Base Rent and/or
Additional Rent by Landlord from a Transferee, or any other party, the original
named Tenant shall remain fully liable for the payment of the Base Rent and
Additional Rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed. Tenant shall not, however, be responsible
for defaults of Landlord if Landlord takes back all or a portion of the Premises
by sublease or assignment as described in Section 27.3.
27.12. The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed shall not be
discharged, released or impaired by any agreement made by Landlord extending the
time, or modifying any of the obligations, of this Lease, or by any waiver or
failure of Landlord to enforce any of the obligations of this Lease.
27.13. The listing of any name other than that of Tenant, whether on
the doors of the Premises or the Office Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any transfer.
27.14. If Landlord shall recover the Premises before the Expiration
Date or earlier termination of the Lease Term, Landlord shall have the right, at
its option, to take over any subleases or other occupancy agreements of the
Premises. Tenant expressly assigns and transfers to Landlord such of the
subleases and other occupancy agreements as Landlord may elect to take over at
the time of such recovery of possession, such assignment and transfer not to be
effective until the termination of this Lease or re-entry by Landlord or
successor by Landlord to Tenant's estate in the Premises, at which time Tenant
shall upon request of Landlord execute, acknowledge and deliver to Landlord such
further instruments as may be necessary to vest in Landlord the then existing
subleases. Every subletting and occupancy is subject to this condition and by
its acceptance of and entry into a sublease or other occupancy agreement, each
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subtenant and occupant shall be deemed conclusively to have thereby agreed that
from and after the termination of this Lease or re-entry by Landlord or of
Landlord's successor to Tenant's estate, that the subtenant or occupant shall
waive any right to surrender possession or to terminate the sublease or other
occupancy agreement and, at Landlord's election, such subtenant or occupant
shall be bound to Landlord for the balance of the term of such sublease or
occupancy agreement and shall attorn to and recognize Landlord as its landlord,
under all of the then executory terms of such sublease or other occupancy
agreement, except that Landlord shall not (a) be liable for any previous act,
omission or negligence of Tenant, (b) be subject to any counterclaim, defense or
offset not expressly provided for in such sublease or occupancy agreement, which
theretofore accrued to such subtenant or occupant against Tenant, (c) be bound
by any previous modification or amendment of such sublease or occupancy
agreement not expressly agreed to by Landlord or by any previous prepayment of
more than one (1) month's Base Rent and Additional Rent which shall be payable
as provided in the sublease or occupancy agreement, or (d) be obligated to
perform any work in the Office Building or the Premises (to prepare them for
occupancy) beyond Landlord's obligations under this Lease. The subtenant or
occupant shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such attornment.
27.15. If Landlord shall give its consent to any assignment of this
Lease or to any sublease or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall in consideration therefor, pay to
Landlord, as Additional Rent:
(a) in the case of an assignment, an amount equal to all sums
and other considerations paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less in the case of a sale thereof, the then net unamortized
or undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns), less all expenses reasonably and actually incurred by Tenant on
account of brokerage commissions and advertising costs in connection with such
assignment; and
(b) in the case of a sublease, any rents, additional charges
or other consideration payable under the sublease to Tenant by the subtenant
which is in excess of the Base Rent and Additional Rent accruing during the term
of the sublease in respect of the subleased space (at the rate per square foot
payable by Tenant hereunder) pursuant to the terms hereof (including, but not
limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in the case
of the sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns), less all
expenses reasonably and actually incurred by Tenant on account of brokerage
commissions, advertising costs and the cost of demising the premises so sublet
in connection with such sublease, which expenses shall be amortized over the
term of such sublease.
The sums payable under this Subsection 27.15 of this Section 27 shall
be paid to Landlord as and when paid by the assignee or subtenant to Tenant.
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28. SUCCESSORS AND ASSIGNS: All terms, provisions, covenants and conditions to
be observed and performed by Tenant shall be applicable to and binding upon
Tenant's respective heirs, administrators, executors, personal representatives,
successors and assigns, subject, however, to the restrictions as to Transfers by
Tenant as provided in this Lease. All covenants of this Lease shall be deemed to
be covenants running with the land.
29. INSOLVENCY, DEFAULT:
29.1. Landlord and Tenant agree that the following matters are defaults
under this Lease:
29.1.1. if Tenant, or any general partner of Tenant if Tenant
is a partnership, or any one of the persons or entities constituting Tenant if
Tenant is more than one person or entity, or any assignee or any person
primarily or secondarily liable for Tenant's obligations under this Lease, shall
be adjudicated a bankrupt or an insolvent or take the benefit of any federal or
state reorganization or composition proceeding or make a general assignment to
or for the benefit of creditors or take the benefit of any insolvency law; or
29.1.2. if Tenant's interest under this Lease shall be sold
under any execution or process of law; or
29.1.3. if a trustee in bankruptcy or a receiver be appointed
or elected or had for Tenant or any general partner of Tenant if Tenant is a
partnership or any one of the persons or entities constituting Tenant if Tenant
is more than one person or entity or any guarantor or assignee or any person
primarily or secondarily liable for Tenant's obligations under this Lease; or
29.1.4. if the Premises shall be abandoned; or
29.1.5. if Tenant shall default in the payment when due of any
installment of Base Rent, Additional Rent and/or any other sum due under this
Lease and such default shall continue for a period of three (3) business days
after notice by Landlord to Tenant of such default; or
29.1.6. if Tenant or any general partner of Tenant if Tenant
is a partnership, or any of the persons or entities constituting Tenant if
Tenant is more than one person or entity, or any guarantor or assignee or any
person primarily or secondarily liable for Tenant's obligations under this
Lease, shall fail to perform any of the terms, provisions, covenants or
conditions of this Lease on Tenant's part to be performed other than the
covenants for the payment of Base Rent and Additional Rent, and Tenant shall
fail to remedy such default within fifteen (15) days after notice by Landlord to
Tenant of such default, or if such notice is of such a nature that it cannot be
completely remedied within such fifteen (15) day period and
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Tenant shall not commence to cure within said period and shall not thereafter
diligently prosecute to completion all steps necessary to remedy such default;
or
29.1.7. if any event shall occur or any contingency shall
arise whereby this Lease, or the term or estate created thereby, would (by
death, operation of law or otherwise) devolve upon any persons, firms, officers
or corporations other than Tenant; or
29.1.8. if there be any lien, judgment, writ, assessment,
charge, attachment or execution on Landlord's or Tenant's interest in this Lease
or the Premises, or the fixtures, improvements and furnishings thereon which is
not removed within five (5) days of the date thereof.
29.2. Any monies received by Landlord from or on behalf of Tenant
during the pendency of any proceeding of the types referred to in Subsections
29.1.1, 29.1.2, and 29.1.3, shall be deemed paid as compensation for the use and
occupancy of the Premises and the acceptance of any such compensation by
Landlord shall not be deemed an acceptance of Base Rent and/or Additional Rent
or a waiver on the part of Landlord or any rights under said subsections.
29.3. In any such event described in Subsection 29.1, at the option of
Landlord, Landlord may:
29.3.1. terminate this Lease and the Lease Term shall expire
and end; or
29.3.2. terminate Tenant's right to possession only, without
termination of this Lease or the Lease Term; and/or
29.3.3. exercise any rights or use any remedies or procedures
available in law or equity, which may be cumulative with those in Subsections
29.3.1 or 29.3.2.
29.4. In connection with any of such events described in Subsection
29.3:
29.4.1. Tenant shall be responsible for all costs, direct and
indirect, of Landlord in retaking possession of and reletting the Premises
including but not limited to attorneys' fees, brokerage charges, court costs,
advertising costs, costs of removal, storage and disposition of property, costs
of refurbishing, repairing and rebuilding the Premises, costs of tenant
inducements in reletting, and unamortized (i.e., amortized over the initial
Lease Term on a straight-line basis and determined as of the first date on which
rent was due but not paid) portion of (a) the cost to Landlord of preparing the
Premises for Tenant's occupancy (including architectural, engineering and
construction costs), (b) attorneys' and brokerage fees and costs incurred by
Landlord in negotiation and execution of this Lease, (c) amount of payments or
other Tenant inducements given Tenant, (d) amount of free rent concessions given
Tenant (to the extent (a), (b), (c) or (d) have not been reimbursed by Tenant
pursuant to the provisions of this Lease ("Costs of Possession and Reletting");
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29.4.2. Tenant shall immediately, upon notice from Landlord
(which may have been included in a prior notice such as that given pursuant to
Subsection 29.1.5 or 29.1.6) surrender the Premises to Landlord;
29.4.3. Subject to applicable laws, Landlord may reenter the
Premises and remove all persons and property without being liable for trespass,
eviction, forcible detainer or entry or damages;
29.4.4. Landlord may enforce its lien on Tenant's property
and/or may treat Tenant's property as abandoned and do with it whatever Landlord
may elect without any accounting to Tenant;
29.4.5. Landlord may declare due and payable, and Tenant shall
then immediately pay, all remaining Base Rent and Additional Rent payable under
this Lease during the balance of the Lease Term calculated on projections
prepared by Landlord in good faith based on past history of increases in
Additional Rent, together with all Costs of Possession and Reletting; and/or
29.4.6. Landlord may relet (or attempt to relet) the Premises
in its own name or otherwise, in which event:
29.4.6.1. Tenant shall be responsible and immediately
pay Landlord for any deficiency in the net amount (less Costs of Possession and
Reletting) collected by Landlord during each payment period under any such lease
and the amount, if any, which is owed by Tenant but as yet unpaid attributable
to the equivalent payment period;
29.4.6.2. Landlord shall credit Tenant for net
amounts (less Costs of Possession and Reletting) actually received for each
payment period under the new lease against amounts owed by Tenant but as yet
unpaid attributable to the equivalent pay period;
29.4.6.3. If Tenant has actually paid Landlord the
Base Rent and/or Additional Rent for the equivalent pay period described in
Subsection 29.4.6.2, then the net amount actually received by Landlord for such
pay period (up to the amount paid by Tenant attributable to the equivalent pay
period) shall be credited against amounts owing by Tenant but unpaid as to other
payment periods or Costs of Possession and Reletting; if no such amounts remain,
the applicable sums collected by Landlord for the current payment period shall
be refunded to Tenant.
29.5. Landlord shall have no obligation to relet the Premises or any
part thereof and shall in no event be liable for refusal or failure to do so,
or, in the event of any such reletting, for refusal or failure to collect any
Base Rent and/or Additional Rent due upon any such reletting, and no such
refusal or failure shall operate to relieve Tenant of any liability under this
Lease or otherwise to affect any such liability. Landlord, at Landlord's option,
may make such repairs, replacements, alterations, additions, improvements,
decorations and other physical
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changes in and to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability. Landlord may relet on any terms Landlord
deems proper and may make such alterations, repairs, replacement and/or
decoration in and to the Premises as Landlord in its sole judgment may then
consider advisable. In no event will Tenant be entitled to receive the excess,
if any, of rents or other sums collected over the sums payable by Tenant to
Landlord under this Lease.
30. ADDITIONAL LANDLORD RIGHTS; LATE FEES:
30.1. If Tenant shall default in the observance or performance of any
term or covenant on Tenant's part to be observed or performed under or by virtue
of any of the terms or provisions of this Lease, Landlord may immediately or at
any time thereafter on five (5) days' notice perform the same for the account of
Tenant, and if Landlord makes any expenditures or incurs any obligations for the
payment of money in connection therewith including but not limited to reasonable
attorneys' fees and disbursements in instituting, prosecuting or defending any
action or proceeding, such sums paid or obligations incurred with interest and
costs shall be deemed to be Additional Rent and shall be paid by Tenant to
Landlord within five (5) days of rendition to Tenant of any bill or statement
therefor.
30.2. In the event Tenant fails to pay any installment of Base Rent,
Additional Rent or other sums payable under this Lease as and when such
installment or other charge is due, Tenant shall pay to Landlord on demand in
addition to such installment (a) an administrative fee of $100 to help defray
the additional cost to Landlord for processing such late payments, and (b) if
not cured within the cure period, if any, for a default, interest on the overdue
amount based on a rate equal to eighteen percent (18%) per annum or, if less,
the maximum rate permitted by applicable law, of the amount unpaid computed from
the date such payment was due and including the date of payment. The provisions
for such late charges shall be in addition to all of Landlord's other rights and
remedies under this Lease or at law or in equity and shall not be construed as
liquidated damages or as limiting Landlord's remedies in any manner.
31. TENANT CLAIMS: If at any time Tenant shall claim Landlord to be in default
or assert any defense to payment of Base Rent, Additional Rent or other sums due
under this Lease, other than the defense of complete previous payment, Tenant
may not withhold any payments under this Lease but must, as a condition
precedent to the making of any such claim or defense pay all sums to Landlord
without prejudice to Tenant's position. This provision is a material inducement
to Landlord to execute this Lease.
32. WAIVER OF DEFAULT: No waiver by either party of a default by the other party
shall be implied. No express waiver by either party shall affect any default
other than the default specified in such waiver and that only for the time and
extension stated in the waiver.
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No waiver of any term, provision, condition or covenant of this Lease by either
party shall be deemed to imply or constitute a further waiver by such party of
any other term, provision, condition or covenant of this Lease. Landlord's
acceptance of the payment of rental or other payments under this Lease after the
occurrence of an event of default shall not be construed as a waiver of such
default, unless Landlord shall have so notified Tenant in writing. In addition
to any rights and remedies specifically granted Landlord in this Lease, Landlord
shall be entitled to all rights and remedies available at law and in equity. All
rights and remedies granted to Landlord in this Lease, by law and in equity,
shall be cumulative and not mutually exclusive.
33. LIEN ON TENANT PROPERTY: In no event shall any material or equipment be
incorporated in or added by Tenant to the Premises so as to become a fixture or
otherwise part of the Office Building which is subject to any lien, charge,
mortgage or other encumbrance of any kind whatsoever or is subject to any
security agreement or any form of title retention agreement.
34. RIGHT OF ENTRY: Landlord, or any of its agents, shall have the right to
enter the Premises during all reasonable hours, upon reasonable prior notice
(except in the event of an emergency) which notice need not be in writing, (a)
to show the Premises to prospective purchasers, mortgagees, lessees or assignees
of all or part of the Office Building or any interest in it, (b) to examine the
Premises or to make such repairs, additions or alterations as may be deemed
necessary for the safety, comfort, or preservation of the Premises or the Office
Building, (c) to exhibit the Premises at any time within one hundred eighty
(180) days before the expiration of this Lease, or (d) to remove placards,
signs, fixtures, Alterations or additions which do not conform to this Lease.
Landlord shall have the right to take all necessary materials and equipment into
the Premises and to store them within the Premises during any repairs or
maintenance. Any entry and activity by Landlord which is permitted under this
Section 34 shall not entitle Tenant to any rent abatement, shall not constitute
an eviction of Tenant, and shall not in any way violate any provision of this
Lease. Landlord shall at all times have the right of entry by master key or, in
the event of emergency if Tenant is not present, by force, without incurring
liability therefor.
35. NOTICES: Any notice given Landlord as provided for in this Lease shall be in
writing and sent to Landlord by prepaid, registered or certified mail (return
receipt requested) or nationally recognized overnight delivery service addressed
to Landlord at Landlord's management office in the Office Building or personally
delivered to an officer or principal of Landlord at Landlord's management office
in the Office Building. All notices to Landlord must also be delivered to
Landlord's counsel at the following address: Younkins & Schecter LLP, 300 Park
Avenue South, New York, New York 10010, and to Landlord's mortgagee at such
address as it may designate to Tenant from time to time. Any notice to be given
Tenant under the terms of this Lease, unless stated otherwise in this Lease,
shall be in writing and shall be sent by prepaid, registered or certified mail
(return receipt requested) or nationally recognized overnight
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delivery service to the office of Tenant in the Office Building or personally
delivered to an agent or officer of Tenant. All bills, statements, demands,
notices, letters, requests or other communications by Landlord may be given by
Landlord's agent or attorney, on behalf of Landlord. Either party, from time to
time, by such notice, may specify another address within the continental United
States to which subsequent notice shall be sent or delivered. Notice shall be
deemed given on the date it is actually received or on the date receipt is
refused. If Tenant or any guarantor is no longer doing business or otherwise
available for delivery of mail at the last notice address on Landlord's records,
or if registered or certified mail or overnight delivery service is refused,
then notice may be given by posting on the Premises, in which event notice shall
be deemed given at time of posting. In order for any notice by Tenant to be an
effective exercise by Tenant of any right under this Lease, such notice must
identify the right which is intended to be exercised, and must specify that the
notice given is intended to be exercised.
36. ATTORNEYS' AND ACCOUNTANTS' FEES: If Tenant defaults in the performance of
any of the terms, provisions, covenants and conditions of this Lease and by
reason of such default Landlord employs the services of an attorney or
accountant to enforce performance of the covenants, or to perform any service
based upon defaults, then in any of said events Landlord shall be entitled to
reasonable attorneys' fees incurred by Landlord pertaining to such matters and
in enforcement of any remedy. Wherever in this Lease reference is made to
attorneys' fees, such fees shall be deemed to include attorneys' fees (including
paralegals' and similar support personnel's) and accountants' fees and all
expenses, disbursements and costs (including disbursements, costs and fees
relating to any appeal).
37. CONDITION OF PREMISES ON TERMINATION OF LEASE AND HOLDING OVER:
37.1. Tenant shall surrender to Landlord, on the Expiration Date or
upon the earlier termination of this Lease, the Premises in as good condition as
the Premises were at the time Tenant first occupied the Office Building after
Landlord's Initial Improvements were completed, ordinary wear and tear, and
damage by fire or other casualty not caused by Tenant's negligence, only
excepted. If Tenant does not immediately surrender the Premises to Landlord at
the end of the Lease Term, then Tenant shall pay to Landlord double the amount
of the Base Rent and Additional Rent paid by Tenant for the last month of the
Lease Term for each month or portion thereof that Tenant holds over plus all
damages that Landlord may suffer on account of Tenant's failure so to surrender
to Landlord possession of the Premises, and shall indemnify and save Landlord
harmless from and against all claims made by any succeeding tenant of the
Premises or broker procuring such tenant, against Landlord arising from, growing
out of or related to delay of Landlord in delivering possession of the Premises
to said succeeding tenant, so far as such delay is occasioned by failure of
Tenant so to surrender the Premises in accordance with this Lease or otherwise.
37.2. No receipt of money by Landlord from Tenant after termination of
this Lease or
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the service of any notice of commencement of any suit or final judgment for
possession shall reinstate, continue or extend the Lease Term or affect any such
notice, demand, suit or judgment.
37.3. No act or thing done by Landlord or its agents, including
acceptance of keys to the Premises, during the Lease Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it be made in writing and
subscribed by a duly authorized officer or agent of Landlord.
37.4. At Landlord's request (which may be made in person or by
telephone), Tenant shall arrange to meet with Landlord for a joint inspection of
the Premises prior to Tenant vacating the Premises. In the event of Tenant's
failure to agree to such joint inspection, Landlord's inspection at or after
Tenant's vacating the Premises shall be conclusively deemed correct for purposes
of determining Tenant's responsibility for repairs and restoration in accordance
with Section 17. Landlord shall provide Tenant with written notice of any
required repairs or restoration within twenty (20) days business days following
Landlord's inspection, which notice shall set forth in reasonable detail the
nature of such repairs or restoration and the estimated cost thereof.
37.5. All obligations of Tenant under this Lease not fully performed as
of the Expiration Date or earlier termination of the Lease Term shall survive
the Lease Term, including without limitation all payment obligations with
respect to taxes and insurance, all obligations concerning the condition of the
Premises, and all indemnification obligations. Upon the inspection of the
Premises described in Subsection 37.4, Tenant shall also, prior to vacating the
Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation under this Lease for unpaid Additional Rent. All such amounts shall
be used and held by Landlord for payment of such obligations of Tenant under
this Lease, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied, as the case may be. Any Security
Deposit held by Landlord shall be credited against the amount payable by Tenant
under this subsection 37.5.
38. OCCUPANCY AND PERSONAL PROPERTY TAX: Tenant shall be responsible for and
shall pay before delinquency all municipal, county or state taxes assessed
during the Lease Term against any occupancy interest or personal property of any
kind, owned by or place in, upon or about the Premises by Tenant.
39. SIGNS:
39.1. Landlord shall have the right to install signs on the Office
Building and exterior and entry door of the Premises and to change the Office
Building's name and street address. Landlord shall install signage identifying
Tenant on the entry door of the Premises, as part of Landlord's Initial
Improvements, the cost of which shall be deducted from Landlord's
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Contribution. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant, visible from, or on any part
of, the outside of the Premises without Landlord's prior written consent which
may, in Landlord's sole discretion, be unreasonably withheld. In any event,
Tenant acknowledges that Landlord may have a sign or graphics program for
multi-tenanted floors and, if applicable, Tenant will at all times conform its
signage with such program. Tenant shall not, except to designate Tenant's
business address (and then only in a reasonably conventional manner and without
emphasis or display), use the name NationsBank Tower or any variation of it for
any purpose whatsoever.
39.2. Landlord agrees to provide Tenant, at Landlord's cost and
expense, with a listing of Tenant's name and the name of each corporate officer
of Tenant having offices at the Office Building on the electronic lobby
directory in the Office Building. In the event such electronic directory is
hereinafter replaced with a "manual" directory, Tenant shall be entitled to
Tenant's Proportionate Share of the listings available on such directory. If
Tenant requests in writing, Landlord agrees to provide Tenant, to the extent
spaces are then available, with additional listings on the directory, at
Tenant's sole cost and expense provided such spaces shall be used by Tenant on a
"space available" basis.
40. WAIVER OF TRIAL BY JURY: Landlord and Tenant mutually agree that the
respective parties to this Lease shall and do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties against the other on
any matters arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Premises. This waiver is knowingly and voluntarily given; Tenant acknowledges
that this provision is a material inducement to Landlord to enter into this
Lease. Tenant further agrees that it shall not interpose any counterclaim in a
summary proceeding or in any action based upon non-payment of rent or any other
payment required of Tenant under this Lease.
41. INTENTIONALLY DELETED.
42. INVALIDITY OF PROVISION: If any term, provision, covenant or condition of
this Lease or the application of it to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term, provision, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each other provision, covenant or condition of
this Lease shall be valid and enforceable to the fullest extent permitted by
law. This Lease shall be construed in accordance with the laws of the State of
Florida, excluding its conflict of law principles. The venue for any lawsuit
arising out of this Lease shall be Dade County, Florida.
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43. MISCELLANEOUS:
43.1. The terms "Landlord" and "Tenant" as contained in this Lease
shall include singular and plural, masculine, feminine and neuter, heirs,
successors, executors, administrators, personal representatives and assigns,
wherever the context so requires or admits. The terms, provisions, covenants and
conditions of this Lease are expressed in the total language of this Lease
Agreement. The section headings are inserted solely for the convenience of the
reader and shall not be deemed to limit or expand any of the provisions of this
Lease. Any reference to exhibits, schedules or riders to this Lease refers to
those exhibits, schedules, riders or other documents attached to this Lease,
which are incorporated in and made a part of this Lease. Any formally executed
addendum to or modification of this Lease, including modifications described in
Section 25, shall be expressly deemed incorporated in this Lease by reference
unless a contrary intention is clearly stated in such addendum or modification.
The term "first-class" as used in this Lease shall refer to type, construction
and condition of the Office Building as of the date of this Lease, subject to
adjustments over time due to such type, construction or passage of time.
43.2. Nothing in this Lease shall prevent Landlord from selling,
transferring or conveying or in any way affect Landlord's right to sell,
transfer or convey, to one or more parties all or any part of the Office
Building or Landlord's interest in the Project, or in any underlying lease. If
any such sale, transfer or conveyance includes the Premises, Tenant shall pay
all rents and other amounts due under this Lease to the party acquiring such
interest upon receipt of notice from Landlord of such sale, transfer or
conveyance. If Landlord's interest in the Project, the Office Building, the
Premises or this Lease is sold or transferred, the seller or transferor shall be
automatically and entirely released of and from all covenants and obligations
under this Lease from and after the date of such conveyance or transfer,
provided the purchaser or transferee has assumed and agreed to carry out all
covenants and obligations of Landlord under this Lease, it being intended that
the covenants and obligations contained in this Lease to be performed on the
part of Landlord shall be binding upon Landlord, its successors and assigns,
only with respect to matters arising during their respective successive periods
of ownership. Tenant shall neither assert nor seek to enforce any claim for
breach of this Lease against any of Landlord's other assets other than
Landlord's interest in the Office Building and in the uncollected rents, issues
and profits thereof, and Tenant agrees to look solely to such interest for the
satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall Landlord (or any of the officers,
trustees, directors, partners, beneficiaries, joint venturers, members,
stockholders or other principals or representatives, and the like, disclosed or
undisclosed, thereof) ever be personally liable for any such liability. This
subsection shall not limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or to take any other action which shall not
involve the personal liability of Landlord to respond in monetary damages from
Landlord's assets other than Landlord's interest in said property, as aforesaid.
In no event shall Landlord (or any of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives and the like, disclosed or undisclosed, thereof)
ever be liable for incidental or consequential damages.
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43.3. Whenever in this Lease Tenant has agreed to indemnify, protect,
defend or hold harmless Landlord for any matter or from anything, whatsoever, or
to release Landlord from any liability under this Lease, the term "Landlord"
shall also be deemed to include Landlord's beneficiaries, its agents,
contractors, employees, successors and assigns.
43.4. Nothing shown on Exhibit "A" attached to this Lease shall be
deemed to be a representation by Landlord as to any matter respecting the
tenants who will occupy the Retail Area or Office Building or as a condition of
this Lease, unless such representation or condition is expressly set forth in
this Lease, Exhibit "A" being attached only for the purpose of showing the
approximate location of the Premises.
43.5. No payment by Tenant or receipt of payment by Landlord of an
amount less than the full amount then due Landlord under this Lease shall be
construed as anything other than a partial payment of such sum then due and
owing. No endorsement or statement on any check or letter or any form of payment
or accompanying document shall be deemed to be an accord and satisfaction or
other form of settlement; Landlord may accept any such payment without prejudice
to its rights to recover the balance of sums due and owing under this Lease or
to pursue any other remedy permitted under this Lease.
43.6. In those instances in this Lease where a specific time period is
given for Landlord's performance, and in which notice is waived or in which a
time period is stated which includes a provision for notice from Tenant and
opportunity to cure, such provisions shall apply. In all other instances in
which Landlord may be in default under this Lease, Landlord shall not be deemed
in default unless Tenant has given Landlord notice and fifteen (15) days'
opportunity to cure Landlord's breach (or, if such breach is not susceptible of
cure in such time, Landlord shall begin such cure and diligently pursue it to
substantial completion). Wherever in this Lease, if at all, Tenant is given a
"grace period" or other opportunity to cure a breach or default, such provision
shall be deemed to apply only if the breach or default is in fact ultimately
curable; if the breach or default is not ultimately curable, then no such time
to cure shall be deemed to have been given. Further, wherever, if at all, Tenant
is given a "grace period" or other opportunity to cure a breach or default under
this Lease, Tenant shall be responsible for any costs incurred by Landlord
arising from, growing out of, or related to such breach or default, even if the
breach or default is cured within the designated time period.
43.7. Whenever under this Lease Landlord's consent or approval is
required, it may be arbitrarily withheld except as otherwise specified herein.
If Tenant requests Landlord's consent or approval, and if in connection with
such request Landlord seeks the advice of its attorneys, architect and/or other
adviser or expert, then Tenant shall pay such persons' costs and fees reasonable
to such request and the preparation of related documents.
43.8. Tenant shall furnish Landlord, within five (5) business days
after Landlord's request therefor, but not more frequently than once annually
(unless Tenant is in default under this Lease), an updated, current financial
statement of Tenant.
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44. INTENTIONALLY DELETED.
45. RADON GAS NOTICE: Pursuant to Florida Statutes Section 404.056(8), Landlord
hereby makes, and Tenant hereby acknowledges, the following notification:
RADON GAS: 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 time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
46. PARTNERSHIP TENANT: If Tenant's interest in this Lease shall be assigned to
a partnership or an entity is comprised of two (2) or more persons, individually
or as copartners of a partnership (a "Partnership Tenant"), the following
provisions of this Section 46 shall apply to such Partnership Tenant: (a) the
liability of each of the parties comprising a Partnership Tenant shall be joint
and several, and (b) each of the parties comprising a Partnership Tenant
consents in advance to, and agrees to be bound by, any written instrument which
may hereafter be executed, changing, modifying or discharging this Lease, in
whole or in part, or surrendering all or any part of the Premises to Landlord,
and by any notices, demands, requests or other communications which may
hereafter be given by a Partnership Tenant or by any of the parties comprising a
Partnership Tenant, and (c) any bills, statements, notices, demands, requests or
other communications given or rendered to a Partnership Tenant or to all such
parties as have been identified to Landlord by Tenant shall be binding upon a
Partnership Tenant and all such parties, and (d) if a Partnership Tenant shall
admit new partners, all of such new partners shall, by their admission to a
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, and (e) a Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new partners, and upon demand of Landlord, shall cause
each such new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume performance
of all the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of item (d) of this Section
46).
47. ENTIRE AGREEMENT: This Lease contains the entire agreement between the
parties to this Lease and all previous negotiations are merged in this Lease.
This Lease may be modified only by an agreement in writing signed and sealed by
Landlord and Tenant. Tenant acknowledges and agrees that Tenant has not relied
upon any statement, representation, prior written or contemporaneous oral
promises, agreements or warranties except such as are expressed in this Lease.
The parties acknowledge that both are sophisticated and knowledgeable
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in the subject matter of this Lease, both are represented by counsel, and both
have contributed substantially to the content of this Lease. No surrender of the
Premises, or of the remainder of the Lease Term, shall be valid unless accepted
by Landlord in writing. This Lease shall not be more strictly construed against
either party to it by reason of one party's preparing all or a portion of it.
48. BROKERAGE: Tenant represents and warrants that it has dealt with no broker,
agent, salesperson, finder or other person in connection with this transaction
and that no broker, agent or other person brought about this transaction, other
than the broker(s) listed in Subsection 1.2. Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by and any other broker, agent,
salesperson, finder or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction. The provisions of this Section 48 shall survive the termination of
this Lease.
49. FORCE MAJEURE: Neither Landlord nor Tenant shall be required to perform any
term, condition, or covenant in this Lease so long as such performance is
delayed or prevented by "Force Majeure", which shall mean labor controversies,
strikes and lockouts (whether lawful or not) either industry-wide or with third
parties other than Landlord and Tenant, respectively, acts of God, material or
labor unavailability, inability to obtain fuel or power, catastrophes, national
or local emergencies, restrictions by any governmental authority, civil riots,
floods, and any other causes not reasonably within the control of Landlord or
Tenant and which by the exercise of due diligence Landlord or Tenant,
respectively, is unable, wholly or in part, to prevent or overcome. Lack of
money shall not be deemed Force Majeure.
50. SHORT FORM LEASE: Upon request by Landlord, Tenant shall execute a short
form lease in recordable form setting forth the name of the parties, the Lease
Term, the provisions of this Lease, and the description of the Premises. Tenant
shall not record this Lease, or a memorandum or short form of this Lease,
without Landlord's prior written consent.
51. RELATIONSHIP OF PARTIES: Nothing contained in this Lease or any act of
Landlord or Tenant shall be deemed or construed by Landlord, Tenant or any third
party to create the relationship of principal and agent, partnership, joint
venture or any association whatsoever between Landlord and Tenant, other than
the relationship of landlord and tenant.
52. DELIVERY OF LEASE INSTRUMENT: Submission of this Lease for examination does
not constitute an offer, right of first refusal, reservation of or option for
the Premises or any other space or premises in, on or about the Office Building.
This Lease becomes effective as a lease only upon execution and delivery by both
Landlord and Tenant. If Tenant is a corporation, then Tenant warrants to
Landlord that (a) the execution and delivery
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of this Lease has been duly authorized by the Board of Directors of Tenant, (b)
either (i) the making of this Lease does not require any vote or consent of
shareholders or (ii) all required votes or consents have been duly taken or
obtained and (c) that Tenant is duly organized and validly existing under the
laws of the State of Florida, with full legal power and authority to perform its
obligations as contemplated by this Lease. If Tenant is a partnership, then
Tenant and its general partners warrant to Landlord that (a) the execution and
delivery of this Lease is within the powers and authority of the party doing so
on behalf of Tenant, (b) either (i) the making of this Lease does not require
any vote or consent of partners, or (ii) all required votes or consents have
been duly taken and obtained and (c) that Tenant is duly organized and validly
existing under the laws of the State of Florida, with full legal power and
authority to perform its obligations as contemplated by this Lease. Landlord is
a partnership and warrants to Tenant that (a) the execution and delivery of this
Lease is within the powers and authority of the party doing so on behalf of
Landlord, (b) either (i) the making of this Lease does not require any vote or
consent of partners, or (ii) all required votes or consents have been duly taken
and obtained and (c) that Landlord is duly organized and validly existing under
the laws of the State of Florida, with full legal power and authority to perform
its obligations as contemplated by this Lease.
53. OPTION TO EXTEND:
53.1 Tenant shall have the right, at its option, to extend the Lease
Term for one (1) period of five (5) years (the "Extension Term"); provided and
upon the condition that at all times within the twelve (12) month period
immediately preceding the exercise of such option through the original
Expiration Date, this Lease shall be in full force and effect and Tenant shall
not be in default thereunder (and no condition exists which with notice and/or
the passage of time would constitute a default), this Lease shall not have been
assigned and Tenant shall personally be in use and occupancy of, and not
subleasing, at least eighty percent (80%) of the Premises. The Extension Term
shall commence on the day after the Expiration Date and shall expire on the
fifth (5th) anniversary thereof unless the Extension Term shall sooner end
pursuant to any of the terms, covenants or conditions of this Lease or pursuant
to law. Tenant shall give Landlord written notice of Tenant's intention to
exercise such option on or before the end of the ninth (9th) month prior to the
Expiration Date, but not earlier than the end of the fourteenth (14th) month
prior to the Expiration Date, the time of exercise being of the essence. All of
the terms, covenants and conditions of this Lease shall continue in full force
and effect during the Extension Term (including, without limitation, the
Operating Expense Base for the determining escalations), except that the Base
Rent shall be as determined in accordance with Subsection 53.2 and Tenant shall
have no further right to extend the Lease Term pursuant to this Section 53.
53.2 Within sixty (60) days following Landlord's receipt of notice of
Tenant's written request therefor (but not earlier than the fourteenth (14th)
month prior to the Expiration Date), Landlord shall give Tenant notice of its
determination of the Base Rent which will be appropriate for the Extension Term
(the "Fair Market Rent"), it being agreed that Landlord shall base its
determination, as Landlord deems appropriate, upon the then current and
projected rents for
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spaces in the Office Building which are then for rent (or, if none, those rented
during the prior twelve (12) months) or projected to be for rent during the
Extension Term, adjusted for any special conditions applicable to such spaces
and leases and for location, length of term, amount of space and other factors
Landlord deems relevant in computing rent for spaces in the Office Building,
including adjustments for anticipated inflation, fluctuations in market rents
and price conditions.
53.3 Tenant shall accept or reject Landlord's determination of the Fair
Market Rent for the Extension Term within fifteen (15) days of Tenant's receipt
of the Landlord's notice setting forth the Fair Market Rent. If accepted by
Tenant, this Lease and the Lease Term shall be extended without execution or
delivery of any other or further documents, with the same force and effect as if
the Extension Term had originally been included in the Lease Term and the
Expiration Date shall thereupon be deemed to be the last day of the Extension
Term; provided, however, at Landlord's request, Tenant shall execute an
amendment to this Lease confirming such extension and the terms thereof.
Otherwise, if Tenant rejects Landlord's determination of the Fair Market Rent,
Tenant shall be deemed to have revoked its option to extend and the Lease Term
shall expire on the original Expiration Date.
54. ADDITIONAL SPACE:
54.1 Commencing as of the Adjustment Date (as such term is hereinafter
defined) and for the entire Lease Term, there shall be added to and included in
the Premises the following additional space in the Office Building, to wit:
The balance of the thirty-sixth (36th) floor of the Office
Building, substantially as shown shaded (or hatched) on the
floor plan annexed hereto as Exhibit F and made a part hereof
(the "Additional Space"),
and from and after the Adjustment Date, the term "Premises" as defined in this
Lease shall be deemed to mean the entire thirty-sixth (36th) floor of the Office
Building, including the thirty-sixth (36th) floor elevator lobby and the men's
and women's restrooms located on such floor. Landlord shall lease to Tenant and
Tenant shall hire from Landlord the Additional Space upon and subject to all of
the covenants, agreements, terms and conditions of this Lease, except as
otherwise set forth in this Section 54. The Adjustment Date shall be deemed to
mean the earlier of (a) the date on which the first (1st) anniversary of the
Commencement Date shall occur or (b) the date on which Tenant elects to take
possession of the Additional Space (or any portion thereof) pursuant to a
written notice to Landlord given not less than sixty (60) days prior to the date
set forth in Tenant's notice to Landlord. In the event Tenant elects to take
possession of the Additional Space in intervals prior to the first (1st)
anniversary of the Commencement Date, for the purposes of this Section 54, the
term "Adjustment Date" shall be deemed to mean each date that Tenant takes
possession of a portion of the Additional Space.
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54.2 Notwithstanding the foregoing provisions of this Section 54 to the
contrary, prior to the first (1st) anniversary of the Commencement Date, Tenant
shall have the option (the "Space Reduction Option") to terminate its obligation
to lease all or any part of the Additional Space (the "Terminated Space"). The
Space Reduction Option is granted subject to the following terms and conditions:
(a) Tenant shall give Landlord a written notice of Tenant's election to exercise
the Space Reduction Option (a "Space Reduction Notice") on or before the
sixtieth (60th) day prior to the first (1st) anniversary of the Commencement
Date (time being of the essence), (b) if Tenant desires to terminate its
obligation with respect to a portion of the Additional Space only, Tenant may
only terminate its obligation with respect to non-contiguous portion(s) of the
Additional Space which Landlord in its sole but reasonable discretion approves
(taking into account, among other things, the marketability and accessibility of
the Terminated Space), and (c) Tenant shall not be in default under this Lease
beyond the giving of notice and expiration of applicable grace periods, if any,
on the date that Tenant exercises the Space Reduction Option (the "Space
Reduction Date"). In addition, the effectiveness of the Space Reduction Notice
shall be subject to and conditioned upon Landlord's receipt, together with the
Space Reduction Notice, of a cash payment from Tenant (a "Termination Payment")
equal to the product of (i) the rentable square footage of the Terminated Space
multiplied by (ii) Six and 58/100 ($6.58) Dollars. In the event of the giving of
a Space Reduction Notice and the making of a Termination Payment, (x) the
provisions of this Section 54 shall be deemed inapplicable with respect to the
Terminated Space, (y) neither party shall have any rights, estates, liabilities
or obligations under this Lease with respect to the Terminated Space for the
period accruing after the Space Reduction Date and (z) Landlord may construct a
common corridor to provide access between the thirty-sixth (36th) floor elevator
lobby and the men's and women's restrooms located on the thirty-sixth (36th)
floor (comparable to the common corridor located on the thirty-seventh (37th)
floor of the Office Building), and Tenant shall not be entitled to any reduction
or abatement of Rent or Additional Rent in connection with the construction of
such common corridor or any retaking of possession of a portion of the Premises
for such purpose.
54.3 Provided Tenant has not exercised the Space Reduction Option with
respect to the entire Additional Space, effective as of the Adjustment Date:
(a) The Base Rent set forth in Subsection 1.1 of this Lease
shall be increased by the following amounts:
(i) During the first (1st) Lease Year, by the
product of (y) Twenty-One and 45/100 ($21.45) Dollars multiplied by (z) the
rentable square footage of the Additional Space, or portion thereof leased by
Tenant;
(ii) During the second (2nd) Lease Year, by the
product of (y) Twenty-One and 95/100 ($21.95) Dollars multiplied by (z) the
rentable square footage of the Additional Space, or portion thereof leased by
Tenant;
(iii) During the third (3rd) Lease Year, by the
product of (y) Twenty-Two and 45/100 ($22.45) Dollars multiplied by (z) the
rentable square footage of the Additional
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Space, or portion thereof leased by Tenant;
(iv) During the fourth (4th) Lease Year, by the
product of (y) Twenty-Two and 95/100 ($22.95) Dollars multiplied by (z) the
rentable square footage of the Additional Space, or portion thereof leased by
Tenant; and
(v) During the fifth (5th) Lease Year, by the product
of (y) Twenty-Three and 45/100 ($23.45) Dollars multiplied by (z) the rentable
square footage of the Additional Space, or portion thereof leased by Tenant.
In accordance with the foregoing, if Tenant elects to take early
possession of one (1) or more portions of the Additional Space prior to the
first (1st) anniversary of the Commencement Date, in addition to the Base Rent
payable pursuant to Section 1 hereof, Tenant will only be obligated to pay Base
Rent with respect to those portions of the Additional Space Tenant takes early
occupancy of until the balance of the Additional Space is included within the
Premises pursuant to the terms of this Section 54. The parties hereto
acknowledge that the Additional Space is conclusively deemed to consist of 5,319
rentable square feet. The determination of the rentable square footage of any
portion of the Additional Space leased by Tenant shall be made by Landlord in
the exercise of its sole but reasonable discretion.
(b) On the Adjustment Date, the definition of Tenant's
Proportionate Share set forth in Subsection 1.17 of this Lease shall be modified
to accurately represent the percentage that the rentable square footage of the
Premises, together with the rentable square footage of the Additional Space, or
portion thereof leased by Tenant, bears to the total rentable square footage of
the Office Building.
54.4 The Additional Space shall be completed and prepared for Tenant's
occupancy in the same manner as, and contemporaneously with, the preparation of
the Premises for Tenant's occupancy pursuant to the provisions of this Lease, as
described in the Scope of Work annexed hereto as Exhibit D. The taking of
possession of the Additional Space by Tenant shall be conclusive evidence as
against Tenant that, at the time such possession was so taken, the Additional
Space and the Office Building were in good and satisfactory condition and that
Landlord's Initial Improvements to the Additional Space were satisfactorily
completed.
54.5 Promptly following the Adjustment Date and at Landlord's request,
the parties hereto shall enter into one or more supplemental agreements setting
forth the Adjustment Date, the Additional Space, or portion thereof leased by
Tenant pursuant to the provisions of this Section 54, the increase in the Base
Rent and Tenant's Proportionate Share resulting therefrom and such other matters
as Landlord shall reasonably designate, provided however, the failure of
Landlord and Tenant to enter into any such agreement shall not affect the
validity or enforceability of the provisions of this Section 54.
54.6 In the event Landlord shall fail to deliver the Additional Space
(or any portion thereof leased by Tenant) on or before the date on which the
first (1st) anniversary of the
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Commencement Date shall occur, then in such event, this Lease and the provisions
of this Section 54 shall not be effected and Landlord shall not be subject to
any liability therefor, but Landlord shall continue to use reasonable efforts to
obtain and deliver to Tenant vacant, exclusive possession of all or any portion
of such space.
55. TENANT'S RIGHT OF FIRST REFUSAL:
55.1. In the event Tenant exercises the Space Reduction Option pursuant
to Section 54 of this Lease, and Landlord shall thereafter at any time during
the Lease Term receive an offer satisfactory to Landlord in its sole discretion
(the "Offer") to lease all or any portion of such Terminated Space (the "First
Refusal Space"), other than to any existing tenant or occupant in the Office
Building then having existing rights in such space, then provided and upon the
condition that at all times within the immediately preceding twelve (12) month
period this Lease shall be in full force and effect and Tenant shall not be in
default hereunder, this Lease shall not have been assigned and Tenant shall be
physically occupying at least eighty (80%) percent of the Premises, Landlord
shall offer the First Refusal Space to Tenant by written notice to Tenant
("Landlord's Notice") upon the same terms and conditions set forth in the Offer
(except as otherwise provided herein). Tenant shall have the right, exercisable
by written notice to Landlord within five (5) days of the date of Landlord's
Notice, time being of the essence, to lease such portion of the First Refusal
Space upon the terms and conditions set forth in the Offer (except as otherwise
provided herein), in which event, Landlord and Tenant shall enter into an
amendment of this Lease acceptable to Landlord to provide for (a) the inclusion
of such portion of the First Refusal Space in the Premises, (b) an increase in
the Base Rent with respect to the First Refusal Space by the amount set forth in
the Offer, and (c) a modification of the definition of Tenant's Proportionate
Share to accurately represent the percentage that the rentable area of the
Premises, together with the rentable area of the portion of the First Refusal
Space identified in the Offer, bears to the total rentable area of the Office
Building. In all other respects, the terms and conditions contained in this
Lease (including, without limitation, the Operating Expense Base for determining
escalations and the length of the Lease Term) shall remain unmodified. In the
event that Tenant fails to exercise its right as aforesaid within five (5) days
of the date of Landlord's Notice, Tenant shall be deemed to have waived its
rights under this Section with respect to such portion of the First Refusal
Space described in the Offer, Landlord shall have the absolute right to lease
such portion of the First Refusal Space specified in the Offer to any other
person or entity and Tenant shall have no further rights with respect to such
portion of the First Refusal Space. In the event that Tenant shall have
exercised its right as aforesaid but Landlord and Tenant fail to mutually
execute an amendment of this Lease as aforesaid within thirty (30) days of the
date Landlord first delivers an initial draft of such proposed amendment to
Tenant, such portion of the First Refusal Space shall be deemed to be included
within the Premises without such written amendment or further act or instrument
of any kind upon the terms, conditions and provisions contained in the Offer
(except as otherwise provided in this Lease).
55.2 In the event that Landlord and Tenant have entered into an
amendment with respect to the portion of the First Refusal Space described in
the Offer and Landlord shall
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thereafter fail to deliver all or any portion of such space on or before the
date(s) set forth in Landlord's Notice, then in such event, this Lease and the
provisions of this Section 55 shall not be effected and Landlord shall not be
subject to any liability therefor, but Landlord shall continue to use reasonable
efforts to obtain and deliver to Tenant vacant, exclusive possession of all or
any portion of such space.
55.3 Tenant agrees to accept the portion of the First Refusal Space
identified in the Offer "as is" and understands and agrees that Landlord shall
perform no work in connection with the preparation of such portion of the First
Refusal Space for Tenant's occupancy.
LANDLORD AND TENANT have signed, sealed and delivered this Lease in
multiple counterparts, all of which constitute but one Lease, at Dade County,
Florida, as of the day and year first above written.
TENANT:
CONTINUCARE CORPORATION
By: /s/ Charles. M. Fernandez
----------------------------------------------
Name: Charles M. Fernandez
---------------------------------------
Title: C.E.O.
----------------------------------------
65-0643602
------------------------------------------------------
Tenant's Tax Identification Number
LANDLORD:
MIAMI TOWER ASSOCIATES LIMITED PARTNERSHIP
By: Winthrop Miami Associates Limited Partnership,
its managing general partner
By: One International Associates Limited Partnership,
its sole general partner
By: One International, Inc.,
its sole general partner
By: /s/ Mark W. Smith
------------------------------------------
Mark W. Smith, Vice President
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FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE (this "Amendment") made as of the 31 day
of July, 1997 between MIAMI TOWER ASSOCIATES LIMITED PARTNERSHIP, a Florida
limited partnership with its office c/o Winthrop Management, NationsBank Tower,
100 Southeast Second Street, Miami, Florida 33131 ("Landlord") and CONTINUCARE
CORPORATION, a Florida corporation with its office at NationsBank Tower, 100
Southeast Second Street, Miami, Florida 33131 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore entered into a certain Office
Lease dated as of August 29, 1996 (the "Lease") with respect to a portion of the
thirty-sixth (36th) floor (the "Existing Premises") in the building known as
NationsBank Tower, 100 Southeast Second Street, Miami, Florida (the "Office
Building"), upon and subject to all of the terms, conditions and provisions set
forth in the Lease; and
WHEREAS, the parties hereto desire to modify the Lease in certain
respects to reflect the inclusion of additional space in the Premises, upon the
terms, provisions and conditions as are more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Recitals; Defined Terms. The recitals set forth above are true and
correct and by this reference are incorporated herein in their entirety. All
capitalized terms contained in this Amendment which are not otherwise defined
herein shall, for the purposes hereof, have the same respective meanings
ascribed to them in the Lease.
2. Additional Space.
(a) First Phase Additional Space. Effective as of July 1, 1997
(the "First Adjustment Date") and for the entire Lease Term, there shall be
added to and included in the Existing Premises the following additional space in
the Office Building, to wit:
A portion of the thirty-sixth (36th) floor of the Office
<PAGE> 65
Building substantially as shown hatched on the floor plan
annexed hereto as Exhibit A and made a part hereof (the "First
Phase Additional Space"), which space is designated as Areas
"A", "B" and "C" thereon,
and from and after the First Adjustment Date, the term "Premises" as defined in
the Lease shall mean collectively, the Existing Premises and the First Phase
Additional Space.
(b) Second Phase Additional Space. Effective as of October 14,
1997 (the "Second Adjustment Date") and for the entire Lease Term, there shall
be added to and included in the Existing Premises and the First Phase Additional
Space the following additional space in the Office Building, to wit:
The balance of the thirty-sixth (36th) floor of the Office
Building substantially as shown hatched on the floor plan
annexed hereto as Exhibit B and made a part hereof (the
"Second Phase Additional Space"), which space is designated as
Area "D" thereon,
and from and after the Second Adjustment Date, the term "Premises" as defined in
the Lease shall mean collectively, the Existing Premises, the First Phase
Additional Space and the Second Phase Additional Space.
(c) Subordination. Landlord does hereby lease to Tenant and
Tenant does hereby hire from Landlord, the First Phase Additional Space and the
Second Phase Additional Space subject and subordinate to all superior leases and
superior mortgages as provided in the Lease and upon and subject to all the
covenants, agreements, terms and conditions of the Lease, as supplemented by
this Amendment.
3. Amendments to Lease.
(a) First Phase Additional Space Amendments. Effective as of
the First Adjustment Date and ending on the day immediately prior to the Second
Adjustment Date:
(i) The Base Rent set forth in Subsection 1.1 of
the Lease shall be increased by Four Thousand Eight Hundred Seventy-Eight and
09/100 ($4,878.09) Dollars per month; and
(ii) 'Tenant's Proportionate Share' as defined in
subsection 1.17 of the Lease shall be deemed to mean one and ninety-three
hundredths
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(1.93%) percent.
(b) Second Phase Additional Space Amendments. Effective as of
the Second Adjustment Date through the balance of the Lease Term:
(i) The Base Rent set forth in Subsection 1.1 of
the Lease shall be increased as follows:
1. During the second Lease Year, by One
Hundred Sixteen Thousand Seven Hundred Fifty-Two and 05/100 ($116,752.05)
Dollars per annum, payable in equal monthly installments of Nine Thousand Seven
Hundred Twenty-Nine and 34/100 ($9,729.34) Dollars each;
2. During the third Lease Year, by One
Hundred Nineteen Thousand Four Hundred Eleven and 55/100 ($119,411.55) Dollars
per annum, payable in equal monthly installments of Nine Thousand Nine Hundred
Fifty and 96/100 ($9,950.96) Dollars each;
3. During the fourth Lease Year, by One
Hundred Twenty-Two Thousand Seventy-One and 05/100 ($122,071.05) Dollars per
annum, payable in equal monthly installments of Ten Thousand One Hundred
Seventy-Two and 59/100 ($10,172.59) Dollars each; and
4. During the fifth Lease Year, by One
Hundred Twenty-Four Thousand Seven Hundred Thirty and 55/100 ($124,730.55)
Dollars per annum, payable in equal monthly installments of Ten Thousand Three
Hundred Ninety-Four and 21/100 ($10,394.21) Dollars each.
(ii) 'Tenant's Proportionate Share' as defined in
Subsection 1.17 of the Lease shall be deemed to mean two and thirty-eight
hundredths (2.38%) percent.
4. Condition of the Additional Space. Tenant has inspected, and agrees
to accept possession of, the First Phase Additional Space and the Second Phase
Additional Space in the condition existing on the date hereof "as-is", and
further agrees that Landlord shall have no obligation to perform any work or
make any installations in order to prepare the First Phase Additional Space or
the Second Phase Additional Space for Tenant's occupancy. The taking of
possession of each of the First Phase Additional Space and the Second Phase
Additional Space by Tenant shall be conclusive evidence as against Tenant that
at the time such possession was so taken, the First Phase Additional Space and
the Second Phase Additional Space, respectively, were in good and satisfactory
condition.
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5. Broker. Tenant covenants, represents and warrants to Landlord that
Tenant neither consulted nor has had any dealings or communications with any
broker or agent with regard to the First Phase Additional Space, the Second
Phase Additional Space or this Amendment other than Winthrop Management and
Condina Bush Kleino Oncor International (collectively, the "Broker"). Tenant
agrees to indemnify, defend and save Landlord harmless from and against any and
all cost, expense (including attorneys' fees and disbursements) or liability for
any compensation, commissions or charges claimed by any broker or agent other
than the Broker with whom Tenant has dealt in connection with the First Phase
Additional Space, the Second Phase Additional Space or this Amendment.
6. Notices: Effective as of the date hereof, Section 35 of the Lease
shall be modified in part to provide that a copy of any notice sent to Landlord
shall be similarly forwarded to Landlord's counsel at the following address:
Younkins & Schecter LLP, 545 Fifth Avenue, New York, New York 10017.
7. Radon Gas Notice: Pursuant to Florida statutes section 404.056(8),
Landlord makes, and Tenant acknowledges, the following notification:
RADON GAS: 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 time. Levels of
radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional
information regarding radon and radon testing may be
obtained from your county public health unit.
8. Miscellaneous.
(a) Except as modified by this Amendment, the Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and are hereby in all respects ratified and confirmed. Tenant hereby
confirms that Landlord is not in default under any provisions of the Lease, that
there are no presently existing claims, counterclaims or defenses with respect
to the Lease and, to the extent any such claims, counterclaims and/or defenses
may exist or may have existed, Tenant hereby agrees to waive the same.
(b) The covenants, agreements, terms and conditions contained
in this Amendment shall bind and inure to the benefit of the parties hereto and
except as otherwise provided in the Lease as hereby supplemented, their
respective legal successors and assigns.
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(c) This Amendment may not be changed orally but only by a
writing signed by the party against whom enforcement thereof is sought.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
MIAMI TOWER ASSOCIATES LIMITED PARTNERSHIP, Landlord
By: Winthrop Miami Associates Limited Partnership,
its managing general partner
By: One International Associates Limited
Partnership, its sole general partner
By: One International, Inc.,
its sole general partner
By: /s/ Mark W. Smith
------------------------------------
Mark W. Smith, Vice President
CONTINUCARE CORPORATION, Tenant
By: /s/ Susan Tarbe
-----------------------------------------------------
Name: Susan Tarbe
------------------------------------------
Title: Executive Vice President and
-----------------------------------------
General Counsel
5
<PAGE> 1
EXHIBIT 10.9
PHYSICIAN EMPLOYMENT AGREEMENT
------------------------------
THIS PHYSICIAN EMPLOYMENT AGREEMENT (the "Agreement") dated as of
April 10, 1997 (the "Execution Date"), is entered into by and between ARTHRITIS
AND RHEUMATIC DISEASE SPECIALITIES, INC., a Florida corporation and its
successors and assigns (the "Company") and NORMAN GAYLIS, M.D. (the
"Physician").
PRELIMINARY STATEMENTS
1. Simultaneous with the execution and delivery of this
Agreement, ContinuCare Corporation, a Florida corporation and Sheridan
Healthcorp, Inc., a Florida corporation closed the transactions memorialized by
two Stock Purchase Agreements, dated as of April 10, 1997 (the "Stock Purchase
Agreements") whereby ContinuCare acquired all of the issued and outstanding
stock of Norman Gaylis, Inc. and Arthritis and Rheumatic Disease Specialties,
Inc. All capitalized terms not defined in this Agreement shall have the meanings
given them in the Stock Purchase Agreements.
2. Physician is currently employed by Arthritis and Rheumatic
Disease Specialties, Inc. pursuant to an Employment Agreement dated January 4,
1996. The Physician desires to terminate such Employment Agreement and to enter
this Employment Agreement.
3. The Company desires to employ the Physician and the Physician
desires to serve the Company, on the terms and subject to the conditions
contained in this Agreement.
In consideration of the parties' promises and mutual covenants in
this Agreement, the Company and the Physician agree as follows:
AGREEMENT
1. EMPLOYMENT. The Company employs the Physician and the
Physician accepts the employment upon this Agreement's terms and conditions.
2. TERM OF EMPLOYMENT. Unless terminated earlier under the
provisions of this Agreement, the initial term of employment of the Physician
shall be for a period of four (4) years (the "Term"), commencing on April 10,
1997 (the "Commencement Date") and expiring on March 31, 2001 (the "Expiration
Date"). One Hundred Eighty (180) days prior to the expiration of the Term, the
Company may elect, in its sole discretion, to extend the term for a period of
three years (the "First Renewal Term") by sending a written notice to the
Physician. One Hundred Eighty (180) days prior to the expiration of the First
Renewal Term and any Additional Renewal Terms (as defined below), the Company
may elect, in its sole discretion, to extend the term for consecutive three-year
periods (the "Additional Renewal Terms") by sending a written notice to
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<PAGE> 2
the Physician. The First Renewal Term and the Additional Renewal Terms shall be
collectively the "Renewal Terms" and shall be upon the same terms and conditions
as contained in this Agreement (except where otherwise specified in this
Agreement). Any written notice from the Company to the Physician notifying
Physician of the Company's intent to extend the Term or any Renewal Terms shall
be a "Renewal Notice".
The Physician, in his sole discretion, may reject the Company's
election for any Renewal Terms, by sending a notice to the Company within twenty
(20) days of the Renewal Notice (a "Rejection Notice"). If the Physician rejects
an extension of the Term or any Renewal Terms, then this Agreement shall
terminate upon the Expiration Date of the Term or Renewal Term then in effect.
If the Physician fails to timely send the Company a Rejection Notice, then this
Agreement shall be extended for the First Renewal Term or any Additional Renewal
Term, as applicable.
3. COMPENSATION. During the Term and all Renewal Terms, the
Physician shall be compensated as follows:
(a) SALARY COMPENSATION.
(i) BASE COMPENSATION. Provided that this Agreement has not been
terminated, the Company shall pay to the Physician as compensation for the
performance of his duties under this Agreement, base compensation at an annual
rate of: (i) Four Hundred Fifty Thousand Dollars ($450,000.00) during the Term;
and, (ii) Five Hundred Thousand Dollars ($500,000.00) during any Renewal Terms.
The Physician shall be paid Base Compensation bi weekly in substantially equal
installments, or at more frequent intervals as the Board of Directors may
determine, subject to all applicable withholdings, set offs, and taxes.
(ii) REDUCTION OF BASE COMPENSATION. The Company acknowledges
that Physician serves, on the Company's behalf, as Medical Director of various
inpatient and outpatient hospital programs throughout the North Dade and South
Dade areas. In the event that all of these programs are terminated and a
replacement program or programs are not implemented by the Company within six
(6) months of the termination of all of these programs which generate at least
Two Hundred Thousand Dollars ($200,000.00) of revenue, Physician's current base
salary at the time the six (6) month period has elapsed shall be reduced an
amount equal such reduction but in no event shall such reduction be more than
Two Hundred Thousand Dollars ($200,000.00).
(iii) INCENTIVE COMPENSATION. Provided that this Agreement has
not been terminated, during each year of the Term and any Renewal Term, the
Physician shall be entitled to receive fifty percent (50%) of earnings before
interest, taxes, depreciation and amortization ("EBITDA") derived from the
Physician's provision of professional services (the "Physician Services") at the
PA Offices listed on Schedule 3(a)(ii) which EBITDA is in excess of Three
Hundred Sixty Five Thousand Dollars ($365,000.00) derived from the Physician
Services at
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those PA Offices or any future offices opened by the Company where Physician
provides Physician Services. All Incentive Compensation payable pursuant to this
Agreement shall be paid to Physician annually within ninety (90) days of the end
of each calendar year during the Term and all Renewal Terms, subject to
applicable withholdings, insurance copayments and other taxes. The Physician
shall be entitled, upon reasonable request to the Company, to be given access to
records directly related to the EBITDA from the Physician Services..
(b) EMPLOYEE BENEFIT PLANS. The Physician shall be entitled to
participate in or benefit from the benefits that are afforded to other Company
employees. The Company retains the right to terminate or alter in its sole and
absolute discretion, any plans or policies from time to time. The Company's
existing benefit plans are described on Schedule 3(b), which benefits may be
altered or terminated by the Company at any time.
(c) VACATION AND SICK DAYS. The Physician shall accrue six (6) weeks
paid vacation time during each 12 month calendar year commencing April 10, 1997.
The Physician shall also accrue ten (10) paid sick days the contract year he is
employed under this Agreement. Vacation and sick days shall be used within the
contract year, and vacation days shall only be used at the times and intervals
mutually agreed upon between Physician and the Company. The Physician shall not
be entitled to any additional compensation for unused vacation and sick days.
Additionally, any time spent by Physician on education, through the attendance
of lectures, seminars or other educational activities, when Physician would
otherwise be providing services to the Company shall be considered vacation
time.
(d) LICENSES, STAFF FEES AND PROFESSIONAL FEES. During the Term and all
Renewal Terms, the Company shall pay PhyBician's applicable hospital medical
staff fees and professional license fees which enable Physician to fulfill his
obligations under this Agreement.
(e) PROFESSIONAL LIABILITY INSURANCE. During the Term and all Renewal
Terms, the following will apply:
(i) the Company shall insure, at its cost, the Physician under
the Company's current professional liability policy written by Zurich-American
Insurance Company ("Physicians' Insurance") in the amount of $1,000,000.00 for
each claim and $3,000,000.00 annual aggregate limit and the costs for such
insurance shall be borne by the Company;
(ii) in the event the Company determines to provide professional
liability insurance for the Physician from other than Physicians, Insurance, at
its costs, the Company agrees to provide coverage limits no less than as
specified in subsection (i) above;
(iii) subject to Section 3(e)(vi), the Company may, in its
absolute sole discretion, at any time during the Term and all Renewal Terms,
continue, modify, change or substitute the malpractice insurance policy coverage
for Physician and/or the Company for Physician's provision of medical services
while acting in the scope of his employment pursuant to the terms and conditions
of this Agreement which was obtained pursuant to Company's
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obligations under this Agreement;
(iv) Physician shall immediately execute and deliver, in strict
accordance with Company's written instructions, all documents and instruments
necessary to effectuate the provisions of this Section; and,
(v) Physician agrees to act in full accordance with the terms and
conditions of any and all malpractice insurance policies, copies of which shall
be provided to the Physician.
(vi) subject to Section 3(e)(i) and (ii), Company will obtain a
continuous claims made professional liability insurance policy to cover
Physician pursuant to the terms of this Agreement. The Company shall, at the
Company's expense, continue to cover Physician for medical malpractice claims
arising out of his employment under this Agreement through a date four (4) years
from the date of termination by: (i) continuing the continuous claims made
professional liability insurance policy; (ii) purchasing a replacement
continuous claims made professional liability insurance policy with retroactive
coverage which does not create any lapse in coverage; or, (iii) purchasing
appropriate tail coverage to meet its obligation under this subparagraph.
(f) WITHHOLDINGS. The Company may withhold from any compensation or
other benefits payable under this Agreement, or arrange for the payment of, any
federal, state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
4. EMPLOYMENT DUTIES.
(a) The Physician agrees during his employment under this
Agreement to: (i) serve, at the pleasure of the Company's Board of Directors, as
the Company's President; (ii) provide medical services on behalf of the Company
as a duly licensed physician under the laws of the State of Florida; (iii)
provide the Physician Services; and, (iv) perform any other duties and
assignments relating to the business of the Company, its affiliates and
subsidiaries, as the Company's Board of Directors or its delegatees directs,
provided further that those duties or assignments shall be reasonably related to
the Physician's expertise and experience ((i), (ii), (iii) and (iv) shall be
collectively, the "Physician Duties"). During the Term and any Renewal Terms,
the Physician shall, except during vacation periods, approved leaves and periods
of illness, devote his entire business time and attention to the performance of
the Physician Duties under this Agreement and shall use his best efforts, skills
and abilities to perform his duties in accordance with applicable laws which are
brought to his attention by the Company and to promote the Company's best
interests.
(b) CALL. The Physician agrees and acknowledges that his services
may be necessary on evenings and weekends, and shall be available for weekday
and weekend call in accordance with the Company's reasonable call policies and
schedules.
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(c) ACCESS TO RECORDS. Upon written request, and in accordance
with Title 42 of the United States Code, Section 1395(x)(v)(1)(I), as amended,
Physician agrees to make available to the Secretary of the United States
Department of Health and Human Services or the Comptroller General of the United
States, or any of their duly authorized representatives, this Agreement, all
documents and records necessary to certify the nature and extent of services
provided by Physician under this Agreement.
(d) ACTIVITIES. The Company agrees to pay for or reimburse
Physician for any reasonable business expenses including, without limited to a
car allowance of five hundred dollars ($500) per month, cellular phone, beeper
and other normal business expenses incurred by the Physician and approved by the
Company.
(e) MISCELLANEOUS. The Physician further agrees and acknowledges
that he shall comply with and follow all written policies, standards, rules and
regulations established by the Company in performing the Physician Duties under
this Agreement, and agrees to be bound by and comply with the terms and
conditions of other agreements to which the Company is a party to, or to which
it may become a party to, with hospitals, ambulatory surgical centers, insurance
companies, third party payors and other providers of medical services in
connection with the provision of medical services.
(i) Without the Company's prior written consent (which consent
shall not be unreasonably withheld), the Physician shall not, during his
employment under this Agreement, render medical services, or any other related
services, for any other person or entity as an employee, agent, independent
contractor or otherwise.
(ii) Except as described in Schedule 4(e)(ii) (the "Outside
Services"), without the Company's prior written consent (which shall not be
unreasonably withheld), the Physician shall not, during his employment under
this Agreement, devote any time to consulting, lecturing, or engaging in any
other self employment or employment activities. The Company consents to the
Physician's participation in the Outside Services, provided that: (a) the
Outside Services are not provided during the time period when the Physician's
services are required pursuant to this Agreement; and, (b) the Outside Services
do not affect, in any manner whatsoever, the Employee's ability to perform the
services required pursuant to this Agreement.
(iii) The Physician shall immediately notify the Company of any
and all incidents, unfavorable occurrences, notices or claims made arising out
of his services as soon as he becomes aware of this information and shall
cooperate in any investigation and in the defense of any incidents, unfavorable
occurrences, notices and claims.
5. DUTY TO ACCOUNT.
(a) Physician shall assign, account, and pay to the Company all
accounts receivable, compensation and any other form of remuneration due from or
paid by any source other than the Company attributable to medical services he
has rendered in his professional
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capacity on behalf of the Company under this Agreement or sums which come into
his possession which are attributable to the services of other employees of the
Company, (collectively the "Company Receivables"), except as Company may
otherwise agree in writing. Physician appoints the Company as his attorney in
fact to execute, deliver and/or endorse checks, applications for payments,
insurance claim forms or other instruments or documents, convenient or required
in the exclusive discretion of the Company to fully collect, secure and realize
all sums due to the Company in respect to services provided under this
Agreement. The power of attorney is coupled with an interest, is irrevocable and
shall survive the expiration or termination of this Agreement for a time period
without limitation. Disability insurance benefits and medical expense
reimbursements received by Physician pursuant to any formal plan of the Company
shall not be considered a Company Receivable for purposes of this Section.
(b) All Company Receivables shall be the sole property of the
Company. In no event shall Physician be entitled to any portion of the Company
Receivables, or the proceeds from Company Receivables, during the Term, any
Renewal Terms or after the termination of this Agreement, whether or not Company
Receivables may have been derived in any way from the performance of Physician
pursuant to the terms of this Agreement.
6. REPRESENTATIONS AND WARRANTIES. The Physician represents and
warrants to the Company as follows:
(a) Physician is a physician duly licensed to practice medicine
under the laws of the State of Florida;
(b) Physician has complied with all laws, rules and regulations
relating to the practice of medicine and is able to enter into and perform all
duties under this Agreement;
(c) Physician is not a party to or bound by any other agreement
or commitment, or subject to any restriction or agreement related to previous
employment or consultation containing confidentiality or non-compete covenants
or other relevant restrictions which may have a possible present or future
adverse affect on the Company or the Physician in the performance of his duties
under this Agreement; and,
(d) to his knowledge, Physician is in good physical and mental
health and does not suffer from any illness or disability which could prevent
him from fulfilling his responsibilities under this Agreement; and,
(e) the Physician has never: (i) had his professional license,
Drug Enforcement Agency number, Medicare provider status or staff privileges at
any hospital or medical facility suspended, relinquished, terminated or revoked;
(ii) been reprimanded, sanctioned or disciplined by any licensing board or any
federal, state, or local society or agency, governmental body, hospital, third
party payor or specialty board; or, (iii) had a final judgment or settlement
without judgment entered against him in connection with a malpractice or similar
action for an amount in excess of Five Thousand Dollars ($5,000.00).
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The Physician agrees to immediately notify the Company of any
fact or circumstance which occurs or is discovered during the Term and any
Renewal Terms, which in itself or with the passage of time and/or the
combination with other reasonably anticipated factors does render or will render
any of these representations and warranties to be untrue.
7. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. The Physician acknowledges that as
a result of the Physician's employment with the Company, the Physician has and
will necessarily become informed of, and have access to, certain valuable and
confidential information of the Company, including, without limitation, trade
secrets, technical information plans, lists of patients, data, records, fee
schedules, computer programs, manuals, processes, methods, intangible rights,
contracts, agreements, licenses, personnel information and the identity of
health care providers (collectively, the "Confidential Information"), and that
the Confidential Information, even though it may be contributed, developed or
acquired in whole or in part by the Physician, is the Company's exclusive
property to be held by the Physician in trust and solely for the Company's
benefit. Accordingly, except as required by law, the Physician shall not, at any
time, either during or subsequent to the Term and any Renewal Terms, use,
reveal, report, publish, copy, transcribe, transfer or otherwise disclose to any
person, corporation or other entity, any of the Confidential Information without
the prior written consent of the Company, except to officers and employees of
the Company and except for information which legally and legitimately is or
becomes of general public knowledge from authorized sources other than the
Physician.
(b) RETURN OF CONFIDENTIAL INFORMATION. Upon the termination of
this Agreement, the Physician shall promptly deliver to the Company all Company
property and possessions including all drawings, manuals, letters, notes,
notebooks, reports, copies, deliverable Confidential Information and all other
materials relating to the Company's business which are in the Physician's
possession or control.
8. NON-COMPETITION. Without the Company's prior written consent,
which may be withheld in its absolute sole discretion, Physician agrees that he
will not: (i) during the Term and any Renewal Terms of his employment under this
Agreement and at any time within a two-year period from the date of termination
of employment pursuant to Section 10 of this Agreement anywhere within
twenty-five (25) miles from any location where the Physician provided medical
services (the "Restricted Area"); on his own behalf or as a principal, partner,
stockholder, officer, employee, agent, consultant, independent contractor,
director or trustee of any person, partnership, entity, firm or corporation :
(a) own, manage, operate, control or otherwise engage in a
Competing Business (as defined below), or receive any compensation in any
capacity from any Competing Business;
(b) other than as a patient himself or as the Company directs,
have any
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<PAGE> 8
business relationship, in any capacity whatsoever, with any IPA, PHO, or any
other form of an integrated delivery system, competing medical practice or
medical services delivery system which is operated in or affiliated in any
manner with medical practices in the Restricted Area;
(c) attempt to solicit or solicit the patients or facilities
serviced by the Company to terminate, curtail or restrict their relationship
with the Company or attempt to provide or provide those patients or facilities
with medical services previously furnished to them by the Physician while
employed by the Company during the Term and any Renewal Terms;
(d) otherwise divert or attempt to divert from the Company any
business or business opportunity whatsoever; or,
(e) attempt to solicit or solicit any person employed or
contracted by the Company, or any of their affiliates, to leave their employment
or not fulfill their contractual responsibility, whether or not the employment
or contracting is full-time or temporary, pursuant to a written or oral
agreement, or for a determined period or at will.
The term "Competing Business" shall mean any business which is
competitive with the Company, which is specifically agreed to by the parties to
be the management, provision and operation of hospital-based medical services,
including pathology and rheumatology services for hospitals, ambulatory surgical
facilities and similar organizations; the management and organization of any
rheumatology networks; the provision of rheumatology services; the operation and
management of a management services organization ("MSO") available for contract
to physicians, hospitals, healthcare facilities, integrated delivery systems,
PHOS, IPAs and physician networks; and, the acquisition and operation of primary
care and specialty physician offices.
In the event that the Company commits a breach of a material term
of this Agreement (after the Company has received at least thirty (30) days
written notice of that material breach and the Company has failed to remedy that
breach within the thirty day period) then Sections 8(a), (b), (c) and (d) shall
not apply.
Notwithstanding anything contained in this Section 8, should the Company not
elect to extend the Term or any Renewal Term by sending Physician a Renewal
Notice as described in Section 2, then Sections B(a), (b), (c) and (d) shall not
apply.
9. REMEDIES. The Physician and the Company each acknowledge that:
(i) the services Physician will render under this Agreement are special and
unique and cannot be replaced by the Company; (ii) the event of a breach by the
Physician of the provisions of Sections 4(c), 5, 7, 8 or 11(a) will cause the
Company irreparable harm; and, (iii) monetary damages in an action at law would
not provide an adequate remedy in the event of a breach. Accordingly, the
Physician agrees that, in addition to any other remedies (legal, equitable or
otherwise) available to the Company, the Company may seek and obtain injunctive
relief against the breach or threatened breach of the provisions of Sections
4(c), 5, 7, 8 or 11(a) as well as all other rights and remedies
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available at law and equity including, without limitation, the right to be
indemnified by Physician for all claims, damages, actions, suits whatsoever for
a breach of Sections 4(c), 5, 7, 8 or 11(a) and if the Company prevails in
litigation against the Physician, its reasonable attorneys' fees, expenses and
costs incurred in enforcing any provisions of Sections 4(c), 5, 7, 8 or 11(a),
whether or not litigation is instituted, and if instituted, at pre-trial, trial
and appellate levels. Nothing contained in this Section 9 shall be construed as
prohibiting the Company and all other injured parties from pursuing all other
remedies available to them for a breach or threatened breach of the provisions
of Sections 4(c), 5, 7, 8 or 11(a), including the recovery of compensatory and
punitive damages from Physician. Physician further acknowledges and agrees that
the covenants contained in Sections 4(c), 5, 7, 8 or 11(a) are necessary for the
protection of the Company's legitimate business and professional duties, ethical
obligations and interests, and are reasonable in scope and content.
10. TERMINATION. This Agreement may be terminated prior to the
expiration of the Term described in Section 2, upon the occurrence of any of the
following events:
(a) DEATH. This Agreement will automatically terminate upon the
death of the Physician. The Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Physician's
beneficiary or beneficiaries from and after the date of the Physician's death,
other than as provided in Section 10(e).
(b) DISABILITY. This Agreement may be terminated at the Company's
option, exercisable in its absolute sole discretion, if the Physician shall
suffer a permanent disability. For the purposes of this Agreement, the term
"permanent disability" means the Physician's inability to perform his duties
under this Agreement for a period of any six (6) consecutive months due to
illness, accident or any other physical or mental incapacity. The Company shall
have no further obligation under this Agreement to make any payments to, or
bestow any benefits on, the Physician from and after the date of termination
under this provision, other than as provided in Section 10(e).
(c) CAUSE. This Agreement may be terminated for cause at the
Company's option, at any time. Cause shall mean, for purposes of this Agreement,
the Physicianls: (i) material breach of any provision of this Agreement; (ii)
willful refusal to perform any duty directed by the Company's Board of Directors
or a supervising officer, an executive of the Company or any authorized
delegates, which is reasonably within the scope of the Physician's duties; (iii)
misappropriation of assets or business opportunities of the Company for personal
or non-Company use; (iv) conviction of any criminal act except for a minor
traffic offense; (v) commission of fraud, embezzlement, or breach of trust
relating to or arising out of his relationship with the Company, its
subsidiaries and affiliates; (vi) revocation or suspension of Physician's
license to practice medicine under the laws of the State of Florida after appeal
rights have been exhausted (provided that a good faith and probable appeal has
been made); (vii) inability to obtain adequate professional liability coverage
in accordance with Section 3(e) of this Agreement due to the Physician's claims
history or fault; (viii) failure or inability to competently and adequately
perform his duties under this Agreement as determined by the Company's Board of
Directors,
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exercisable in its reasonable discretion; or, (ix) Physician's breach of his
obligations contained in Section 11(a) of this Agreement. Prior to the Company's
termination of this Agreement for cause under Section 10(c)(ii, vi or viii), the
Company shall first have provided Physician with at least thirty (30) days prior
written notice and Physician shall have not, within that thirty (30) days
remedied, to the Company's reasonable satisfaction, the basis of that
termination. The Company shall have no further obligation under this Agreement
to make any payments to, or bestow any benefits on, the Physician from and after
the date of the Physician's termination under this provision, other than as
provided in Section 10(e).
This Agreement may be terminated for cause at the Physician's
option, for the Company's failure to materially perform its obligations to the
Physician under this Agreement after the Company has received at least thirty
(30) days prior written notice of that material failure and the Company has
failed within that thirty (30) day period to remedy that substantial failure to
the Physician's reasonable satisfaction.
(d) VOLUNTARY. This Agreement may be terminated by either party,
without cause, upon the following events: (i) by the Company by not electing to
extend the Term or any Renewal Terms as described in Section 2; or, (ii) by the
Physician by sending a Rejection Notice. The Company shall have no further
obligation under this Agreement to make any payments to, or bestow any benefits
on, the Physician from and after the date of termination of this Agreement under
this provision, other than as provided in Section 10(e).
(e) OBLIGATIONS. In the event of a termination under Sections
10(a), (b), (c) or (d), the Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Physician from
and after the date of termination, other than payments or benefits accrued and
due and payable to Physician prior to the date of the termination. Physician
shall, upon Company's request and immediately upon notice, vacate all premises,
including all facilities serviced by the Company. Physician shall return all of
the property of the Company and its affiliates that is in his possession or
control.
11. MISCELLANEOUS.
(a) SUBSTANCE ABUSE POLICY. It is the Company's policy (the
"Policy") that none of its employees shall use or abuse any controlled
substances at any time (other than those medications lawfully prescribed by a
medical doctor in a reasonable diagnosis and which do not interfere with the
Employee's capacity to perform his or her obligations under this Agreement) or
be under the influence of alcohol or be affected by the Use of alcohol during
the time period required to perform their duties and obligations under any
employment agreements. Company and Physician both acknowledge and agree that the
purpose of this Policy is for the benefit of the Company, the Physician and the
individuals whom they serve.
In compliance with this Policy, during the Term and any Renewal
Terms Physician agrees to submit to random drug testing immediately upon the
Company's request. Testing may include, but shall not be limited to, the taking
of blood and urine samples
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and utilization of gas chromatography. In the event that a positive test result
is reached indicating a violation of the Company's Policy, the Physician may, at
his own expense and subject to the supervision and approval of the Company of
the manner and testing facilities utilized, elect to have a second drug test
performed, at a time which is no longer than two days after the initial positive
results were received by the Company and the Employee. The Company may, in its
sole and absolute discretion, terminate the Physician for cause pursuant to
Section 10(c) of this Agreement in the event either: (i) a positive test result
is received in the initial drug test and the Physician fails to exercise his
option for a second test in the manner provided for in this Section; or, (ii)
positive test results are received from both tests. In the event that the second
test result is negative, the Company may, at any time, retest the Physician
pursuant to the terms of this Section.
(b) SURVIVAL. The provisions of Sections 6, 7, 8, 9, 10(d) and 11
shall survive the termination of this Agreement for a time period without
limitation.
(c) ENTIRE AGREEMENT; WAIVER. This Agreement contains the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties relating to this Agreement's
subject matter. This Agreement may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions shall be
binding unless in writing and signed by the party against whom it is sought to
be enforced; provided however, that Physician's compensation may be increased at
any time by the Company without in any way affecting any of the other terms and
conditions of this Agreement, which in all other respects shall remain in full
force and effect. Failure of a party to enforce one or more of the provisions of
this Agreement or to require at any time performance of any of the obligations
under this Agreement shall not be construed to be a waiver of any provisions by
a party nor to in any way affect the validity of this Agreement or a party's
right to enforce any provision of this Agreement, nor to preclude a party from
taking any other action at any time which it would legally be entitled to take.
(d) MERGERS AND CONSOLIDATION; SUCCESSORS AND ASSIGNS. Physician
shall not have the right to assign or delegate this personal service Agreement,
or any of his rights or obligations under this Agreement, without the Company's
consent. The preceding sentence shall not hinder the Physician's estate from
being entitled to receive all accrued and unpaid compensation and benefits due
to Physician at the time of his death. The Company may freely assign and
delegate all of its rights and duties under this Agreement. Additionally, the
parties each agree that upon the sale of all or substantially all of the assets,
business and goodwill of the Company to another company or any other entity, or
upon the merger or consolidation of the Company with another company or any
other entity, this Agreement shall inure to the benefit of, and be binding upon,
both Physician and the Company and any entity purchasing the assets, business
and goodwill, or surviving merger or consolidation.
(e) ADDITIONAL ACTS. The Physician and the Company each agrees to
execute, acknowledge and deliver all further instruments, agreements or
documents and do all further acts that are necessary or expedient to carry out
this Agreement's intended purposes.
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Each party recognizes that time is of the essence with respect to each of their
obligations in this Agreement. Each party agrees to act as soon as practicable
in light of the particular circumstances and use their best efforts in as timely
a fashion as possible to maximize the intended benefits of this Agreement.
(f) NOTICES. Whenever any notice, demand or request is required or
permitted under this Agreement, that notice, demand or request shall be either
hand-delivered in person or sent by United States Mail, registered or certified,
postage prepaid, or delivered via overnight courier to the addresses below or to
any other address that either party may specify by notice to the other party.
Neither party shall be obligated to send more than one notice to the other party
and no notice of a change of address shall be effective until received by the
other party. A notice shall be deemed received upon hand delivery, two business
days after posting in United States Mail or one business day after dispatch by
overnight courier.
To the Company: Arthritis and Rheumatic Disease Specialities, Inc.
100 SE 2nd Street, 36th Floor
Miami, FL 33131
Attn: Susan Tarbe, General Counsel
To the Physician: Norman Gaylis, M.D.
100 NW 170th Street, Suite 105
North Miami Beach, FL 33169
(g) HEADINGS. The headings of the paragraphs of this Agreement
have been inserted for convenience of reference only and shall in no way
restrict or otherwise affect the construction of the terms or provisions of this
Agreement. References in this Agreement to Sections are to the sections of this
Agreement.
(h) CONSTRUCTION. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted, including any presumption of superior
knowledge or responsibility based upon a party's business or profession or any
professional training, experience, education or degrees of any member, agent,
officer or employee of any party. If any words in this Agreement have been
stricken out or otherwise eliminated (whether or not any other words or phrases
have been added) and the stricken words initialed by the party against whom the
words are construed, this Agreement shall be construed as if the words so
stricken out or otherwise eliminated were never included in this Agreement and
no implication or inference shall be drawn from the fact that those words were
stricken out or otherwise eliminated.
(i) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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(j) SEVERABILITY. The invalidity or unenforceability of any one
or more of the words, phrases, sentences, clauses, or sections contained in this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement or any part of any provision, all of which are
inserted conditionally on their being valid in law, and in the event that any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid or unenforceable, this Agreement shall
be construed as if such invalid or unenforceable word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted or shall be enforced as nearly as possible according to their
original terms and intent to eliminate any invalidity or unenforceability. If
any invalidity or unenforceability is caused by the length of any period of time
or the size of any area set forth in any part of this Agreement, the period of
time or area, or both, shall be considered to be reduced to a period or area
which would cure the invalidity or unenforceability.
(k) GOVERNING LAW. This Agreement is made and executed and shall
be governed by the laws of the State of Florida, without regard to its conflicts
of laws principles.
(1) NO THIRD PARTY BENEFICIARIES. All obligations of the Company
under this Agreement are imposed solely and exclusively for the benefit of
Physician, and no other person will have standing to enforce, be entitled to or
be deemed to be the beneficiary of any of these obligations.
(m) LITIGATION; PREVAILING PARTY. In the event of any arbitration
or litigation, including appeals, with regard to this Agreement, the prevailing
party shall be entitled to recover from the non-prevailing party all reasonable
FEES, COSTS, AND expenses of counsel (at pre-trial, trial and appellate
levels).
(n) JURISDICTION; VENUE; INCONVENIENT FORUM; JURY TRIAL. ANY
SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY JUDGMENT
ENTERED BY ANY COURT IN RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS
OF THE STATE OF FLORIDA OR IN THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA IN DADE COUNTY, AND THE PARTIES ACCEPT THE EXCLUSIVE PERSONAL
JURISDICTION OF THOSE COURTS FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING.
IN ADDITION, THE PARTIES KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY NOW OR LATER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED BY ANY COURT BROUGHT IN THE
STATE OF FLORIDA, AND FURTHER, KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE
ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE STATE OF FLORIDA
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY WAIVES ALL RIGHTS TO ANY
TRIAL BY JURY IN ALL LITIGATION RELATING TO OR ARISING OUT OF THIS AGREEMENT.
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Each of the parties have duly executed this Agreement as of the
Execution Date.
COMPANY:
ARTHRITIS AND RHEUMATIC
DISEASE SPECIALITIES, INC.,
a Florida corporation
By: /s/ Susan Tarbe
-------------------------------------
Susan Tarbe, Executive Vice President
PHYSICIAN:
NORMAN GAYLIS, M.D.
/s/ Norman Gaylis
------------------------------
Norman Gaylis, M.D.
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<PAGE> 1
EXHIBIT 10.10
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is entered into as of this
17th day of September, 1997 between Continucare Corporation (the "Company") and
Susan Tarbe (the "Employee").
WHEREAS, on August 23, 1996, the Company and Employee entered into an
Employment Agreement (the "Agreement") whereby Employee agreed to serve the
Company subject to the terms and conditions set forth in such Agreement;
WHEREAS, the Company and Employee desire to amend the Agreement in
consideration of the premises and mutual covenants set forth herein the
sufficiency of which is hereby acknowledged;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
---------
1.1 AMENDMENT TO SECTION 3.1. Section 3.1 of the Agreement is hereby
amended in its entirety and replaced with the following:
Base Salary. The Employee shall receive a base salary at the
annual rate of One Hundred and Eighty Thousand Dollars ($180,000) (the
"Base Salary") during the Term of this Agreement, with such Base Salary
payable in installments consistent with the Company's normal payroll
schedule, subject to applicable withholding and other taxes.
1.2 AMENDMENT TO SECTION 3.2. Section 3.2 of the Agreement is hereby
amended to reflect the following:
BONUS. The Employee shall be eligible to receive an annual
bonus in an amount determined by the President and CEO of the Company
and approved by the Board of Directors.
1.3 AMENDMENT TO SECTION 3.4. Section 3.4 of the Agreement is hereby
amended to delete the last sentence of such section and replace it with the
following:
The warrant for the remaining 80,000 shall vest gradually over a three
year period at a rate of 33.34% per year.
1.4 AMENDMENT TO SECTION 3.5. Section 3.5 of the Agreement is hereby
amended in its entirety and replaced with the following:
Change of Control. Upon a change of control in the Company,
the Employee shall be entitled to a lump sum payment equal to the Employee's
aggregate Base Salary for the remainder of this Agreement, which in no event
shall be deemed to be a period of less than one year. In addition, upon a change
of control, any remaining unvested portion of the warrant for 100,000 shares of
the Company shall automatically vest.
<PAGE> 2
1.5 AMENDMENT TO SECTION 4.2. Section 4.2 of the Agreement is hereby
amended in its entirety and replaced with the following:
Other Benefits. The Company shall pay life insurance premiums
for the Employee in an amount equal to $250.00 per month. The Employee
and the Employee's immediate family shall be entitled to participate in
all medical and hospitalization, group life insurance, and any and all
other plans as are presently and hereinafter provided by the Company to
its executives. The Employee shall also be entitled to three weeks
vacation in accordance with the Company's prevailing policy for its
executives, with any additional vacation time to be determined by the
Company's Chief Executive Officer.
1.6 AMENDMENT TO SECTION 4.4. Section 4.4 of the Agreement is hereby
amended in its entirety and replaced with the following:
Automobile Allowance. The Employee shall be entitled to an
automobile allowance of $750 per month, which amount is intended to
compensate Employee for wear and tear and other expenses incurred by
Employee by reason of the use of Employee's automobile for Company
business from time to time.
ARTICLE II
2.1 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
2.2 GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Florida without giving
effect to principles of conflicts of laws.
2.3 NO OTHER MODIFICATIONS. Except as modified by this Amendment, the
terms of the Agreement shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, each party has executed this Amendment on the date
first set forth above.
CONTINUCARE CORPORATION
By: /s/ CHARLES M. FERNANDEZ
---------------------------------------------
Charles M. Fernandez, Chief Executive Officer
and President
/s/ SUSAN TARBE
--------------------------------------------------
Susan Tarbe
-2-
<PAGE> 1
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
20th day of October, 1997, by and between CONTINUCARE CORPORATION, a Florida
corporation, (hereinafter referred to as "the Company"), and Joseph P.
Abood, (hereinafter called "Executive").
1. EMPLOYMENT:
1.1 EMPLOYMENT AND TERM. The Company shall employ Executive and the
Executive shall serve the Company in accordance with terms and conditions set
forth herein, for the period of time (hereinafter referred to as the "Term")
commencing October 20, 1997 (the "Effective Date") and expiring on the second
anniversary thereof, unless sooner terminated as hereinafter set forth.
1.2 DUTIES OF EXECUTIVE. The Executive shall serve as the Chief
Financial Officer and Treasurer of the Company and shall perform the duties of
an executive commensurate with such position, shall diligently perform all
services as may be reasonably assigned to him by the Chief Executive Officer
(hereinafter referred to as the "CEO") and shall exercise such power and
authority as may, from time to time, be assigned to him by the CEO of the
Company. The Executive shall devote his full time and attention to the business
and affairs of the Company, render such services to the best of his ability, and
use his best efforts to promote the interests of the Company.
1.3 PLACE OF PERFORMANCE. In connection with his employment by the
Company, the Executive shall be placed the Company's principal executive offices
in Dade County, Florida, except for required travel on the Company's business.
2. COMPENSATION.
2.1 SALARY AND BONUS. During the Term, the Executive shall receive (a)
a base salary at the annual rate of $115,000.00 for the first year and $120,000
for the second year (the "Base Salary"), such base salary to be payable in
substantially equal installments consistent with the Company's normal payroll
schedule, subject to applicable withholding and other taxes and (b) guaranteed
bonus payments of $10,000.00 at the end of the first year of the Term, and
$10,000.00 at the end of the second year of the Term. Any additional bonuses to
the Executive shall be granted at the sole discretion of the CEO, or the
Company's Board of Directors.
2.2 STOCK OPTION GRANT. The Executive shall be granted an option (the
"Option") to purchase Fifty Thousand (50,000) shares of the Company common
stock, par value $.001 per share (the "Common Stock"), at a purchase price of
$6.25 per share (such price per share representing the fair market value of the
common stock at the time the offer of employment was made to the Executive).
Twenty percent [20%] of the
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<PAGE> 2
Option shall vest and become exercisable immediately upon the execution of this
Agreement; the remaining eighty percent [80%] shall vest and become exercisable
in forty percent [40%] increments on each anniversary date of this Agreement.
Notwithstanding any of the foregoing, the Option shall expire ninety [90] days
after the date of termination of this Agreement. All other terms of the Option
not inconsistent with the foregoing, shall be as set forth in an option
agreement signed by the Company.
3. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
3.1 EXPENSE ALLOWANCE. During the Term, the Executive shall receive an
expense allowance of Three Hundred Dollars [$300.00] per month (exclusive of
meals and out of town travel reimbursements), subject to applicable withholding
and other taxes, to be used at the discretion of the Executive.
3.2 EXPENSE REIMBURSEMENT. During the Term, the Company, upon the
submission of supporting documentation by the Executive, shall reimburse the
Executive for all reasonable expenses actually paid or incurred by the Executive
in the course of and pursuant to the business of the Company, including expenses
for travel and entertainment.
3.3 OTHER BENEFITS. The Executive shall be entitled to participate in
all medical, hospitalization, dental plan, group life insurance, dental and any
and all other plans as are presently and hereinafter offered by the Company to
its employees and other top executives.
3.4 WORKING FACILITIES. The Company shall furnish the Executive with an
office, a secretary and such other facilities and services suitable to his
position and adequate for the performance of his duties hereunder.
4. TERMINATION:
4.1 TERMINATION FOR CAUSE. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Executive's
employment hereunder for cause. For purposes of this Agreement, the term "Cause"
shall mean (i) a material breach of this Agreement which is not cured within 15
days after receipt by the Executive of written notice of same; (ii) fraud,
embezzlement, misappropriation of funds or breach of trust; (iii) the charging
or indictment of the Executive with the any criminal act which is a felony; (v)
material, willful or knowing failure or refusal by the Executive to perform his
duties hereunder; (vi) disability of the Executive which prohibits the Executive
from performing his duties hereunder for a period of 60 consecutive days; and/or
(vii) the failure of the Executive to adhere to the Company's Compliance
Program. Any termination for Cause shall be made in writing to the Executive
which notice shall set forth in detail all acts or omissions upon which the
company is relying for such termination. Upon any termination pursuant to this
Section 4.1, the Executive shall be entitled to be paid his Base Salary accrued
through the date of termination and any unpaid bonus previously awarded
2
<PAGE> 3
by the Compensation Committee and the Company shall have no further liability
hereunder, except for unexercised vested options.
4.2 TERMINATION WITHOUT CAUSE. At any time the Company shall have the
right to terminate the Executive's employment hereunder by written notice to the
Executive. In the event the Executive is terminated without Cause, this
Agreement shall be terminated and the Executive shall be entitled to continue to
receive his monthly Base Salary compensation for a period of one year from the
date of such termination and any unpaid bonus previously awarded by the
Compensation Committee. Except as provided in this Section 4.2, the Company
shall have no further liability hereunder, (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination, subject,
however, to the provisions of Sections 3.1 and 3.2 hereof). Notwithstanding the
foregoing, the Executive shall have the right to exercise his vested stock
options pursuant to Section 2.2 above and shall be obligated to use his best
efforts to seek employment (subject to the restrictions set forth in Section 6
hereof) following such termination on terms comparable to those provided
hereunder and to mitigate to the fullest extent possible any and all amounts due
and payable hereunder.
4.3 DEATH. In the event of the death of the Executive during the term
of employment hereunder, the Company shall pay to the Personal Representative of
the Estate of the deceased Executive any unpaid base salary accrued through the
date of death and any unpaid bonus previously awarded by the Compensation
Committee, and said Personal Representative shall have the right to exercise any
stock option the Executive has under Section 2.2. Except as provided in this
Section 4.3, the Company shall have no further liability hereunder (other than
for reimbursement for reasonable business expenses incurred prior to the date of
the Executive's death, subject, however, to the provisions of Sections 3.1 and
3.2 hereof).
4.4 RESIGNATION BY EXECUTIVE. The Executive shall at all times have the
right, upon 90 days written notice to the Company, to terminate the Executive's
employment hereunder. Upon any termination pursuant to this Section 4.4, the
Executive shall be entitled to be paid his accrued Base Salary and any unpaid
bonus previously awarded by the Compensation Committee and the Company shall
have no further liability hereunder. Upon resignation, the Company has the
option to waive the notice requirements and to terminate the Executive
immediately.
5. FULL SETTLEMENT. The Company's obligation to make payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or others.
6. RESTRICTIVE COVENANTS.
6.1 NON-COMPETITION. During the Term and for a period of six months
following the termination (other than without Cause, as defined in Section 4.1)
of the Executive's employment by the Company (not
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<PAGE> 4
including Executive's voluntary resignation or expiration of the Term), the
Executive shall not directly or indirectly engage in or have any interest in,
directly or indirectly any sole proprietorship, partnership, corporation,
business or any other person or entity (whether as an employee, officer,
director, partner, agent, security holder, creditor, consultant or otherwise)
that, directly or indirectly engages in competition with the Company in any and
all states in which the Company and/or any of its subsidiary conducts its
business during the Term or at the time Executive's employment with the Company
is terminated; provided, however, this non-competition covenant shall be
restricted in geographical scope to Dade County, Florida and other locations in
which the Company maintains operations and further provided that Executive may
continue to hold company securities and/or acquire, solely as an investment,
shares of capital stock or other equity securities of any company which are
traded on any national securities exchange or are regularly quoted in the
over-the-counter market, so long as Executive does not control, acquire a
controlling interest in or became a member of a group which exercises direct or
indirect control of more than 5% of any class of capital stock of such
corporation.
6.2 NONDISCLOSURE. During the Term and following termination of the
Executive's employment with the Company, Executive shall not divulge,
communicate, use to the detriment of the Company or for the benefit of any other
person or persons, or misuse in any way, any Confidential Information (as
hereinafter defined) pertaining to the business of the Company, any Confidential
Information or data now or hereafter acquired by the Executive with respect to
the business of the Company (which shall include, but not be limited to,
information concerning the Company's financial condition, prospects, technology,
customers, suppliers, partners, methods of doing business and marketing and
promotion of the Company's services) shall be deemed a valuable, special and
unique asset of the Company that is received by the Executive in confidence and
as a fiduciary, and Executive shall remain a fiduciary to the Company with
respect to all such information. For purposes of this Agreement "Confidential
Information" means information disclosed to the Executive or known by the
Executive as a consequence of or through his employment by the Company
(including information conceived, originated, discovered or developed by the
Executive) prior to or after the date hereof and not generally discovered or
developed by the Executive) prior to or after the date hereof, and not generally
known about the Company or its business. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Executive from disclosing Confidential
Information to the extent required by law.
6.3 NONSOLICITATION OF EMPLOYEES. During the Term and for a period of
one year following termination of the Executive's employment with the Company,
Executive shall not directly or indirectly for himself or for any other person,
firm, corporation, partnership, association or other entity, attempt to employ
or enter into any contractual arrangement with any employee or former employee
of the Company, unless such employee or former employee has not been employed by
the company for a period in excess of six months.
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<PAGE> 5
6.4 BOOKS AND RECORDS. All books, records, accounts and similar
repositories of Confidential Information of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company upon termination of this Agreement or on the Board's request at any
time.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Section 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Section 6 of this Agreement by the Executive or any of his affiliats,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
9. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company: Continucare Corporation
c/o Charles M. Fernandez
Chief Executive Officer
100 S.E. 2 Street
36th Floor
Miami, Florida 33131
If to the Executive:
Joseph P. Abood
201 Crandon Boulevard
#824
Key Biscayne, FL 33149
or to such other address as either party hereto may, from time to time, give
written notice to the other.
10. BENEFITS: BINDING EFFECT. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, Personal
Representatives, legal representatives, successors and, where applicable,
assigns. Notwithstanding the foregoing, neither party may assign its rights or
benefits, or delegate any of its duties, hereunder without the prior written
consent of the other party hereto.
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<PAGE> 6
11. SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portion of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses or sections
contained in this Ageement shall be declared invalid, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted. If
such invalidity is caused by duration, geographic scope or both, the otherwise
invalid provision will be considered to be reduced to a period or area which
would cure such invalidity.
12. WAIVERS. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
13. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of a breach, by either or both
of them, of any term or provision of this Agreement. In the event that either
party hereto brings suit for the collection of any damages resulting from or the
injunction of any action constituting a breach of any of the terms or provision
of this Agreement, then the party found to be at fault shall pay all reasonable
court costs and attorneys' fees of the other.
14. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
(other than the parties hereto and, in the case of Executive, his heirs,
Personal Representative and/or legal representative) any rights or remedies
under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CONTINUCARE CORPORATION
By /s/ Charles M. Fernandez
-------------------------------
Charles M. Fernandez
Chief Executive Officer
President and Chairman of
the Board.
By /s/ Joseph P. Abood
-------------------------------
-------------------------------
Joseph P. Abood
6
