Exhibit 10.48
FIFTH AMENDMENT
TO
LEASE AGREEMENT FOR OFFICE FACILITIES
This Fifth Amendment to Lease Agreement for Office Facilities ("Fifth
Amendment") is made this 29TH day of OCT, 2001 by WRC PROPERTIES, INC., a
Delaware corporation ("Landlord"), and AMERICAN PREPAID PROFESSIONAL SERVICES,
INC., a Florida corporation and COMPBENEFITS CORPORATION, a Delaware
corporation (jointly and severally "Tenant").
A. Landlord and ORAL HEALTH SERVICES, INC., formerly known as Oral Health
Services of Florida, Inc. ("Original Tenant"), entered into that certain Lease
Agreement for Office Facilities dated April 6, 1995 (the "Original Lease"),
pursuant to which Original Tenant leased the Premises known as Suites 400 and
325, containing approximately 15,969 square feet of Net Rentable Area (the
"Original Premises"), in the building known as 5775 Waterford, located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Building").
B. Landlord and Original Tenant entered into that certain First Amendment
to Office Lease Agreement dated as of September 6, 1995 (the "First Amendment")
for the purpose of expanding the Original Premises to include Suite 320
containing approximately 2,079 square feet of Net Rentable Area, Suite 330
containing approximately 1,970 square feet of Net Rentable Area, and Suite 137,
containing approximately 292 square feet of Net Rentable Area (together the
"First Amendment Expansion Space"), located in the Building, and for the other
purposes stated therein.
C. Landlord and Original Tenant entered into that certain Second Amendment
to Lease Agreement for Office Facilities dated February 11, 1997 (the "Second
Amendment") for the purpose of further expanding the Premises demised under the
Original Lease and the First Amendment to include an additional 1,056 square
feet of Net Rentable Area located on the third floor of the Building (the
"Second Amendment Expansion Space"), and for the other purposes stated therein.
D. Landlord and Original Tenant entered into that certain Third Amendment
to Lease Agreement for Office Facilities dated June 11, 1997 (the "Third
Amendment") for the purpose of further expanding the Premises demised under the
Original Lease, the First Amendment and the Second Amendment to include an
additional 1,155 square feet of Net Rentable Area located on the third floor of
the Building (the "Third Amendment Expansion Space"), and for the other purposes
stated therein.
E. Landlord and Original Tenant entered into that certain Fourth Amendment
to Lease Agreement for Office Facilities dated November 5, 1997 (the "Fourth
Amendment") for the purpose of further expanding the size of the Premises
demised under the Original Lease, the First Amendment, the Second Amendment and
the Third Amendment to include Suite 200 in the Building, containing
approximately 7,394 square feet of Net Rentable Area (the "Fourth Amendment
Expansion Space").
F. Landlord, Original Tenant and CompDent Corporation entered into that
certain Consent to Assignment dated July 11, 2000 ("Consent") for the purpose of
evidencing
Landlord's consent to the assignment of the Original Lease, the First Amendment,
the Second Amendment and the Third Amendment from Original Tenant to CompDent
Corporation, and for the other purposes set forth therein.
G. CompDent Corporation changed its name to CompBenefits Corporation my
amendment to its Certificate of Incorporation dated July 12, 2000 filed with the
Secretary of State of the State of Delaware on July 12, 2000.
H. The Original Lease, the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment and the Consent are referred to herein as the
"Lease". The Original Premises, the First Amendment Expansion Space, the Second
Amendment Expansion Space, the Third Amendment Expansion Space and the Fourth
Amendment Expansion Space are referred to herein as the "Existing Premises".
I. Tenant wishes to extend the Term of the Lease, and the reduce the size
of the Existing Premises. Accordingly, Landlord and Tenant are entering into
this Fifth Amendment.
TERMS
NOW, THEREFORE, for Ten Dollars ($10.00) and the covenants and conditions
of this Amendment, the receipt and sufficiency of which are hereby conclusively
acknowledged, Landlord and Tenant agree as follows:
1. Recitals. The above recitals are true and correct and are agreed to by
Landlord and Tenant as if such recitals were fully set forth herein.
2. Terms. All undefined capitalized terms herein shall have the same
meanings as defined in the Lease.
3. Lease Term. The Term of the Lease is hereby extended for a period of
five (5) years from the "Redefined Premises Commencement Date" as defined in
Exhibit "D" hereto.
4. Tenant to Temporarily Vacate Suite 400. Tenant shall, on or before
September 7, 2001, vacate Suite 400 and remove all of its personal property and
trade fixtures therefrom. Notwithstanding the foregoing, Tenant may leave the
systems installed in the "Existing Telephone and Security Equipment Room"
designated in Exhibit "A" hereto until it causes the relocation of such
equipment to the "New Telephone and Security Equipment Room", also designated on
Exhibit "A" hereto, in accordance with the procedures set forth in Exhibit "D"
hereto.
5. Interim Base Rental. For the period between May 16, 2001 and the date
that Tenant vacates Suite 400 in the condition required under Paragraph 4 above,
Tenant shall continue to pay Base Rent for the Premises as set forth in the
Lease, which is, as of March 1, 2001, the amount of $20.74 per square foot of
Net Rentable Area, as subsequently adjusted pursuant to Exhibit "C" to the
Original Lease. From and after the date that Tenant vacates Suite 400 in the
foregoing required condition until the "Redefined Premises Commencement Date" as
hereinafter defined, Tenant shall pay Base Rent for the Premises (but excluding
Suite 400)
as set forth in the Lease and in accordance with the amount per square foot set
forth in this Paragraph 5, as adjusted from time to time.
6. Interim Proportionate Share. For the period between May 16, 2001 and the
date that Tenant vacates Suite 400 in the condition required under the Paragraph
4 hereof, Tenant shall continue to pay its Proportionate Share of Operating
Expenses for the Premises as set forth in the Lease. From and after the date
that Tenant vacates Suite 400 in the condition required under Paragraph 4 hereof
until the Redefined Premises Commencement Date, Tenant's Proportionate Share of
Operating Expenses shall be 25.02264%. As set forth in the Lease, Tenant shall
pay its Proportionate Share of Operating Expenses for such period under this
Fifth Amendment to the extent Operating Expenses exceed the amount of $7.50 per
square foot per year.
7. Interim Premises. From the date that Tenant vacates Suite 400 in the
condition required under Paragraph 4 above until the Redefined Premises
Commencement Date, the Premises demised under the Lease shall consist of 14,647
square feet of Net Rentable Area, and shall include each portion of the Premises
except for Suite 400 (the "Interim Premises") Tenant shall vacate the Interim
Premises in the condition required under the Lease on or before five (5)
business days following the Redefined Premises Commencement Date, and Tenant
shall pay all sums due under the Lease for the Interim Premises until it so
timely vacates the Interim Premises.
8. Redefined Premises Commencement Date. The Redefined Premises
Commencement Date shall occur on the date that Landlord has substantially
completed the improvements to Suite 400 to be accomplished under the scope of
Exhibit "D" hereto. Notwithstanding the foregoing, in the event that Tenant
causes any delays as enumerated in Exhibit "D" hereto in the Redefined Premises
Commencement Date, it shall pay Base Rent and its Proportionate Share of
Operating Expenses for Suite 400 for each such day of Tenant delay.
9. Redefined Premises. From and after the Redefined Premises Commencement
Date, Tenant's Premises under the Lease shall consist of Suite 400 and Suite 325
consisting of 15,969 square feet of Net Rentable Area, (the "Redefined
Premises"). Tenant's Proportionate Share of Operating Expenses shall be
27.2811%. From and after the Redefined Premises Commencement Date, Tenant shall
pay its Proportionate Share of Operating Expenses to the extent Operating
Expenses exceed $8.62 per square foot of Net Rentable Area. Tenant has been in
occupancy of the Redefined Premises, and accepts it in AS-IS condition subject
to the work to be performed by Landlord under Exhibit "D" hereto.
10. Redefined Premises Base Rent. Tenant shall pay Base Rent for the
Redefined Premises in accordance with the following schedule, plus sales tax
thereon. Exhibit "C" to the Lease shall be deleted from and after the Redefined
Premises Commencement Date. "Year 1" in the following schedule shall commence on
the Redefined Premises Commencement Date.
PERIOD ANNUAL BASE RENT/SQ.FT. ANNUAL BASE RENT MONTHLY BASE RENT
------ ------------------------ ---------------- -----------------
1 $21.00 1/16/02 - 1/17/03 $335,349.00 $27,945.75
2 $21.50 1/16/03 - 1/17/04 $343,333.50 $28,611.12
3 $22.00 1/16/04 - 1/17/05 $351,318.00 $29,276.50
4 $22.50 1/16/05 - 1/17/06 $359,302.50 $29,941.88
5 $23.00 1/16/06 - 1/17/07 $367,287.00 $30,607.25
11. Payment of Rent. Paragraphs 5.2 and 23.1(a) of the Original Lease are
hereby modified to provide that Tenant shall, with respect to its payments of
rent or additional rent under the Lease, receive notice and a ten (10) day
period to cure following such notice two (2) times in each calendar year before
such payment shall be considered late and before late charges shall apply.
Furthermore, late fees shall not commence to accrue unless Tenant's payment is
not received by the fifth day of the month in which it is due.
12. Parking.
a. Other than the unreserved, allocated parking spaces under the
Lease, Tenant has no further parking rights under the Lease or
under any other agreements with Landlord and any other such
agreements, whether express or implied, are hereby revoked.
Without limitation of the foregoing, Tenant shall not be
permitted to park or use for parking the undeveloped land parcel
adjacent to and west of the building known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
b. From and after the Redefined Premises Commencement Date, the
second sentence of Paragraph 12.1 of the Original Lease shall
provide that Tenant's allocated share of parking shall be 70
spaces.
13. Brokers. Tenant hereby warrants that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Fifth
Amendment other than The ▇▇▇▇▇ Group, which has represented Landlord, and CB
▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., which has represented Tenant. Tenant agrees to and hereby
indemnifies Landlord from any claims for commission or expenses relating to any
claim by any other real estate broker or agent in connection with this Fifth
Amendment or otherwise relating to the Lease.
14. Lease in Full Force and Effect. Tenant represents, warrants and
acknowledges that the Lease is unmodified, other than pursuant to the terms of
this Fifth Amendment, and is in full force and effect as modified herein, that
rent has been paid through the date hereof and that Landlord is not in default
in the performance of any covenant, agreement or condition contained in the
Lease, as modified, and that Tenant has no defense to the payment of any amounts
due under the Lease, as modified.
15. Effect of Delivery. This Fifth Amendment shall not be effective, and
shall not be relied upon by either party, until such time as it has been
executed by a duly authorized officer of Landlord and a copy of this Fifth
Amendment, which has been fully executed by both Landlord and Tenant, is
delivered to Tenant.
(execution page follows)
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth Amendment
on this _____ day of __________________, 2001.
TENANT:
Witness as to AMERICAN PREPAID AMERICAN PREPAID PROFESSIONAL SERVICES,
PROFESSIONAL SERVICES, INC.: INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------- ------------------------------------
Signature Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & COO
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Print Name
Witness as to COMPBENEFITS
CORPORATION: COMPBENEFITS CORPORATION
/s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------- ------------------------------------
Signature Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & COO
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Print Name
Witness as to LANDLORD: LANDLORD:
WRC PROPERTIES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. Cairo By: /s/ ▇▇▇▇▇ ST. CLAIR
------------------------------------- ------------------------------------
Signature Name: ▇▇▇▇▇ ST. CLAIR
Title: ASSISTANT SECRETARY
▇▇▇▇▇▇▇ ▇. Cairo
Print Name
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
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Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
Print Name
EXHIBIT "A"
FLOOR PLAN OF THE REDEFINED PREMISES, SPECIFICALLY INDICATING THE LOCATION OF
THE "EXISTING TELEPHONE AND SECURITY EQUIPMENT ROOM" AND THE "NEW TELEPHONE AND
SECURITY EQUIPMENT ROOM"
EXHIBIT "D"
WORK LETTER AGREEMENT
This Work Letter agreement (this "Work Letter") is attached to and made
part of that certain FIFTH AMENDMENT TO LEASE AGREEMENT FOR OFFICE FACILITIES
(the "Fifth Amendment") dated the ____________ day of ____________, 2001 by and
between WRC PROPERTIES, INC. ("Landlord") and AMERICAN PREPAID PROFESSIONAL
SERVICES, INC., a Florida corporation and COMPBENEFITS CORPORATION, a Delaware
corporation (jointly and severally "Tenant"). The terms, definitions and other
provisions of the Lease as modified by the Fifth Amendment are hereby
incorporated into this Work Letter by reference. This Work Letter addresses work
to be performed by Landlord in the Redefined Premises as defined in the Fifth
Amendment in the period between the date that Tenant vacates Suite 400 and Suite
325 in the condition required under the Fifth Amendment. All references herein
to the "Premises" are references to the Redefined Premises only.
In consideration of the execution of the Lease and the mutual covenants and
conditions hereinafter set forth, Landlord and Tenant agree as follows:
1. IMPROVEMENTS:
(a) Tenant has previously been in occupancy of the Redefined Premises under
the Lease. This Work Letter sets forth the agreement with respect to the
construction of improvements to the Redefined Premises as defined in the Fifth
Amendment. All improvements to the Redefined Premises, whether constructed or
installed by Landlord or Tenant, shall be hereinafter referred to as the "Tenant
Improvements", which shall be comprised of materials at least equal to the
Building Grade as hereinafter defined.
(b) In accordance with and subject to the provisions of this Work Letter,
Landlord shall, at Tenant's expense (subject to offset by the Tenant Improvement
Allowance as hereinafter defined), construct and install the Tenant
Improvements. Unless otherwise agreed in writing, Landlord shall use the
following Building Grade construction methods and materials where appropriate or
some other substantially comparable construction method or material deemed by
Landlord (in its sole discretion) to the Building Grade:
(1) Interior Partitions: Taped, finished and painted (two coats of
flat latex, partitioning to be constructed with one layer of 1/2" drywall
mounted on each side of 3 5/8" metal studs, extending to the finished ceiling
height and having 2 1/2" vinyl base throughout.
(2) Interior Demising Walls: Separation between Tenants consisting of
one layer of 5/8" of fire-rated drywall mounted on each side of 3 5/8" metal
studs, running from floor slab to ceiling slab, with 3 5/8" layer of insulation
in the wall cavity; Tenant to be responsible only for one-half of the cost of
such tenant separation and corridor walls. Any other unfinished concrete
surfaces (walls to columns) to be wrapped with drywall; Tenant to bear full cost
of such wrapped concrete walls. All demising walls to be taped, finished and
painted (two coats) and vinyl base installed in the same manner prescribed for
the interior partitions.
(3) Building Exterior Wall: All window openings will have Landlord
specified horizontal mini-blinds.
(4) Entry Doors: Solid core wood veneer (8'6" height, 3' width) set in
metal frames. Maximum of two (2) entry doors per Tenant. Hardware to be lever
handle U.S. 32 polished stainless, hinges U.S. 26 polished chrome, closer and
U.S. 32 polished stainless floor stops.
(5) Interior Doors: Solid core wood veneer (8'6" height, 3' width) set
in metal frames. Hardware to match Entry Doors, with closers only as required by
building code.
(6) Carpeting: Minimum 32 ounce face weight, commercial grade, glue
down, throughout Premises.
(7) Heating, ventilation and air conditioning: Low pressure ductwork
and flex duct air distribution system throughout the Premises with air
diffusers, as required.
(8) Electrical: Wiring and conduit per code, as required for standard
wall-mounted duplex power outlets, switches and 2' x 4' parabolic lighting
fixtures with complete circuitry to electrical panels.
(9) Lighting: 2' x 4' parabolic lay-in fixtures with three fluorescent
tubes each, with wiring, conduit and circuitry.
(10) Telephone Outlets: Wall-mounted box with pull string or conduit
to top of partition for tenant telephone system.
(11) Ceiling: 2' x 2' reveal edge lay-in acoustical ceiling tile and
1" wide metal grid.
(12) Fire Protection and Security Equipment: Fully-recessed sprinkler
heads, centered in tile, exit lights, fire extinguishers and fire dampers as
required per code.
(a) Landlord's obligation to construct any Non-Standard
Improvements requested by Tenant shall be subject to the provisions of
this Work Letter pertaining to (i) Landlord's review of the "Plans and
Specifications" (as hereinafter defined) and (ii) any delay in
"Substantial Completion" (as hereinafter defined) due to Tenant's
specification of construction or materials other than Building Grade.
2. TENANT IMPROVEMENT ALLOWANCE; TENANT'S COSTS:
(a) Landlord shall provide Tenant with an allowance (the "Tenant
Improvement Allowance") as a credit against the cost of the Tenant Improvements,
including the Non-Standard Improvements. The Tenant Improvement Allowance shall
be equal to Twenty Three and 00/100 Dollars ($23.00) per square foot of Rentable
Area of the Premises, which equates to the total amount of Three Hundred Sixty
Seventy Thousand Two Hundred Eighty Seven and 00/100 ($367,287.00). To the
extent that the total cost of the Tenant Improvements (including the cost of the
Non-Standard Improvements) exceeds the Tenant Improvement Allowance, Tenant
shall pay the full amount of such excess ("Tenant Costs") as follows:
(1) Prior to commencement of construction of the Tenant Improvements,
Tenant shall pay Landlord an amount equal to fifty percent (50%) of the Tenant's
Costs, as such amount is then determined by reference to the "Construction
Budget" (as hereinafter defined).
(2) Prior to taking occupancy of the Premises, Tenant shall pay
Landlord an amount equal to the remaining unpaid balance of Tenant's Costs, and
such amount can then be reasonably determined by Landlord based on available
information.
(3) Within ten (10) days following Landlord's submittal to Tenant of a
final accounting of Tenant's Costs, Tenant shall pay Landlord the then remaining
balance of Tenant's Costs, or Landlord shall reimburse Tenant as to any excess
amounts previously paid, as the case may be.
(4) Tenant's right to any undisbursed portion of the Tenant
Improvement Allowance shall expire one year following the Redefined Premises
Commencement Date.
(b) Tenant's Costs represent a reimbursement of monies expended by Landlord
on Tenant's behalf. Payment when due shall be a condition to Landlord's
continued performance under this Work Letter. Any delay in construction of the
Tenant's Improvements or in Tenant taking occupancy of this Premises, resulting
from Tenant's failure to make any Tenant's Costs payment when due shall be
Tenant's responsibility. Tenant's failure to pay any portion of Tenant's Costs
when due shall constitute a default under the Lease (subject to any applicable
notice requirements or grace periods), entitling Landlord to all of its remedies
thereunder.
(c) Tenant shall not receive any credit or payment for any unused portion
of the Tenant Improvement Allowance, and Tenant's right to any unused portion
shall expire one (1) year following the Redefined Premises Commencement Date as
defined in the Fifth Amendment.
3. PLANS AND SPECIFICATIONS; CONSTRUCTION BUDGET:
(a) The Tenant Improvements shall be completed in accordance with detailed
architectural and engineering working drawings and material specifications (the
"Plans and Specifications") which shall be prepared at Tenant's expense (subject
to offset by the Tenant Improvement Allowance) and shall be in a form and
content as necessary to allow Landlord's contractor(s) to obtain all required
building permits and approvals. The Plans and Specifications shall include the
following:
(1) fully dimensioned architectural plan;
(2) electric/telephone outlet diagram;
(3) reflective ceiling plan with light switches;
(4) mechanical plan;
(5) electric power circuitry diagram;
(6) schematic plumbing riser diagram (if any);
(7) all color and finish selections; and
(8) all special equipment and fixture specifications.
(b) Tenant may utilize either the space planner architect designated by
Landlord ("Landlord's architect"), or some other licensed architect or space
planner in preparation of items (1) through (3), (7) and (8) as provided in
subparagraph (a) of this Section; provided that if Tenant elects to use some
other licensed architect or space planner, that portion of the Plans and
Specifications must
be sealed as may be required for issuance of a building permit by an architect
duly licensed in the State of Florida. In any event, items (4), (5) and, if
necessary, item (6) must be prepared by the engineer(s) designated by Landlord
("Landlord's engineers"). Any charges to be paid to Landlord's architect and
engineers by Tenant in connection with the preparation of the Plans and
Specifications shall be deemed to be part of Tenant's costs.
(c) Tenant shall pay the full cost (subject to offset by the Tenant
Improvement Allowance), as reasonably determined by Landlord, of the Plans and
Specifications prepared in connection with any Non-Standard Improvements.
(d) Landlord shall cause the Plans and Specifications to be prepared and
submitted to the Tenant no later than September 12, 2001. Tenant shall then have
a period of not more than ten (10) days following such submittal in which to
review and approve the Plans and Specifications or state any objections to same
in writing. Tenant's approval shall not be unreasonably withheld, and any
objections shall be reasonable in nature and stated in sufficient detail so as
to allow necessary modification by Landlord. Landlord shall have a period of not
more than ten (10) days following receipt of Tenant's objection(s), if any, to
make necessary modifications to the Plans and Specifications and resubmit same
to Tenant in final form. Once accepted by Tenant in final form, the Plans and
Specifications may be modified only with Landlord's and Tenant's written
approval, and Tenant shall be liable for any additional costs incurred as a
result of any such change. Tenant's written approval can only be granted in
writing signed either by the President or Facilities Manager of CompBenefits
Corporation or by a representative of GS Consulting, Inc., Tenant's project
consultant, which approval shall include the cost of and delay associated with
the subject change.
(e) Any delay by Tenant in approving the Plans and Specifications (or
granting detailed comments with respect to items which require modification) or
in responding to other Landlord submittals with the time periods set forth in
this Work Letter, in delaying Tenant payments as required herein, or in
relocating the contents of the Existing Telephone and Security Equipment Room
(as defined in the Fifth Amendment) to the New Telephone and Security Equipment
Room (as defined in the Fifth Amendment) shall be Tenant delay under this Work
Letter.
(f) Within fifteen (15) days following receipt of the final approved Plans
and Specifications, Landlord shall have its contractor(s) prepare an estimated
budget of the cost of the Non-Standard Improvements, and shall submit same to
Tenant. The budget shall be in reasonable detail and shall reflect a unit cost
for all Non-Standard Improvements which is reasonable in amount, given the then
current market conditions pertinent to labor and material costs for such
construction. The cost of the Non-Standard Improvements, as set forth in the
budget shall also include the cost of all utilities, air-conditioning, elevator,
and security services provided during after hours construction. The budget shall
be used as a basis for calculating Tenant's Costs, if any. Following final
completion of the Tenant Improvements, Landlord shall provide Tenant with a
statement of actual costs of the Non-Standard Improvements including the cost of
any approved change orders.
4. CONTRACTOR(S); PERMITS; PERFORMANCE BOND:
(a) Landlord shall use its own contractor(s) and shall obtain all building
permits necessary to complete all Building Standard Improvements and any
Non-Standard Improvements, with the exception of any item(s), (whether or not
shown in the Plans and Specifications) which may be agreed in writing to be
constructed or installed by Tenant or Tenant's contractor(s).
(b) In the event that the parties hereto have agreed that Tenant will
undertake to provide some portion of the Tenant Improvements, Tenant shall use
licensed contractors, approved by Landlord, and shall be responsible for
obtaining all necessary permits and approvals at Tenant's sole expense. Tenant
shall advise its contractor(s), subcontractor(s) and material supplier(s) that
no interest of Landlord in the Premises, the Building or the Property shall be
subject to liens to secure payment of any amount due for work performed or
materials installed in the Premises and that Landlord has recorded a notice to
that effect in the public records of Miami-Dade County, Florida. Landlord shall
permit Tenant and Tenant's contractor(s) to enter the Premises prior to the
Commencement Date to accomplish any work as agreed, however Tenant agrees to
make diligent and commercially reasonable efforts to insure that its
contractor(s) does (do) not impede Landlord's contractor(s) in performance of
their respective tasks, and any interference by such contractors that results in
delay shall be Tenant delay hereunder. Landlord shall not be liable in any way
for any injury, loss, damage or delay which may be caused by or arise from such
entry by Tenant, its employees or contractor(s).
(1) Landlord shall instruct its contractor not to commence any work in
the Existing Telephone and Security Equipment Room until Tenant's contractors
shall have first caused the relocation of the equipment located therein to the
New Telephone and Security Equipment Room or, in the alternative, to propose
safeguards to Tenant so that such contractor may protect such equipment in the
course of its installation of a new ceiling in the Existing Telephone and
Security Equipment Room in the event that such contractor finds such safeguards
to be practicable. Tenant shall be responsible, as an offset against the Tenant
Improvement Allowance, for the costs of any such safeguards. Tenant agrees that
Landlord shall not be required to complete the work to the Existing Telephone
and Equipment Room specified in the Plans and Specifications to be completed as
a condition of the Redefined Premises Commencement Date, and Landlord shall, if
such Room has not been completed before the Redefined Premises Commencement
Date, require its contractor to promptly complete such work following the
Redefined Premises Date and Tenant's written notice to Landlord that it has
removed the telephone and security equipment previously located therein.
Landlord shall instruct its contractor not to enter the Existing Telephone and
Security Equipment Room until Tenant has given notice to Landlord and its
contractor that it has completed the relocation referred to herein, or, in the
alternative, until Tenant has approved the safeguards to be proposed under this
subparagraph. Any additional costs associated with the phased completion of the
Existing Telephone and Security Equipment Room shall be Tenant's costs as offset
against the Tenant Improvement Allowance.
(c) Landlord shall have the right to disapprove any of Tenant's contractors
or subcontractors if Landlord has reason to believe that such contractors or
subcontractors are: (i) not licensed as required by any governmental agency;
(ii) not technically qualified or sufficiently staffed to do the work; (iii) not
financially capable of undertaking the work; and/or (iv) incompatible with any
of Landlord's contractors or subcontractors working on the Building (such
incompatibility to include possible conflicts with any union contractors
employed by Landlord).
(d) If the Non-Standard Improvements to be constructed and installed by
Landlord exceeds $100,000.00, Landlord, at its option, may require its
contractor(s) to provide a performance and payment bond(s) covering such
construction, the cost of which may be offset against the Tenant Improvement
Allowance. Should Tenant undertake construction of a portion of the Tenant
Improvements costing in excess of $100,000.00, then Tenant shall require its
contractor(s) to provide performance and payment bond(s) covering the total
value of such work. In any case, the cost of the
performance and payment bond premiums shall be borne by Tenant, the cost of
which may be offset against the Tenant Improvement Allowance.
(e) In the event that the total cost of the Tenant Improvements (including
the Non-Standard Improvements) to be constructed and installed by Landlord
exceeds $100,000.00, Landlord, at its option, may require its contractor(s) to
provide a performance and payment bond(s) covering such construction. Should
Tenant undertake construction of a portion of the Tenant Improvements costing in
excess of $100,000.00, then Tenant shall require its contractor(s) to provide
performance and payment bond(s) covering the total value of such work. In any
case, the cost of the performance and payment bond premiums shall be borne by
Tenant subject to Offset by the Tenant Improvement Allowance.
5. CONSTRUCTION OF THE IMPROVEMENTS:
(a) Landlord shall substantially complete the Building Standard
Improvements, and the Non-Standard Improvements, if any, in accordance with the
Plans and Specifications not later than one hundred twenty (120) days following
Tenant's approval of the Plans and Specifications, subject to delay for Tenant
Delay, force majeure, and other delays not subject to Landlord's reasonable
control. "Substantial Completion" shall mean that the Building Standard
Improvements and the, Non-Standard Improvements are sufficiently complete so as
to allow Tenant to occupy the Premises for the use and purposes intended without
unreasonable disturbance or interruption; provided that Landlord, its employees,
agents and contractors, shall be allowed to enter upon the Premises at any
reasonable time(s) following the Commencement Date as necessary to complete any
unfinished details, and such entry shall not constitute an actual or
constructive eviction of Tenant, in whole or in part, nor shall it entitle
Tenant to any abatement or diminution of rent or relieve Tenant from any
obligation under the Lease.
(b) Tenant shall be responsible for any delay in Substantial Completion
past the scheduled date of substantial completion resulting from any of the
following causes:
(1) Tenant's failure to submit and/or approve the Plans and
Specifications (or any necessary modifications or additions
thereto) within the time periods specified in this Work Letter;
or
(2) Tenant's failure to pay any portion of Tenant's Costs when due;
or
(3) Tenant's specification of special materials or finishes, or
special installations other than as may be specified by Landlord
as Building Grade, which special items cannot be delivered or
completed within Landlord's construction schedule (subject to
Landlord's obligation to give Tenant notice of same as
hereinafter provided); or
(4) any change in the Plans and Specifications caused and approved by
Tenant, once finally approved and accepted by Landlord, even
though Landlord may approve such change; as set forth in
Subparagraph 3(d) above, such changes can be approved by Tenant
only in writing signed either by the President or Facilities
Manager of CompBenefits Corporation or by a representative of GS
Consulting, Inc., Tenant's project consultant, which approval
shall include the cost of and delay associated with the subject
change.
(5) the performance of or failure to perform any special work or
installation by any person or firm employed by Tenant to do any
work on the Premises; or
(6) any work stoppage or delay due to Tenant's failure to use union
contractors or labor as required by Landlord; or
(7) any other delay in Substantial Completion directly attributable
to the negligent or willful acts or omissions of Tenant, its
employees, agents or contractor(s).
(c) In the event that any delay caused by Tenant results in a delay in
Substantial Completion past the scheduled Redefined Premises
Commencement Date as provided in the Fifth Amendment, then the
Redefined Premises Commencement Date shall be adjusted on a day for
day basis to correspond the number of delay days caused by Tenant, and
the Redefined Premises Commencement Date will be deemed to have
occurred and Tenant's rental obligations shall commence as of the date
Landlord would have otherwise achieved Substantial Completion but for
such Tenant's delay.
(d) All electrical permits and installations required as part of the
systems furniture final installation are the responsibility of the
Tenant and/or the system furniture installer.
(e) In conjunction with Landlord's review of the Plans and Specifications
and preparation of the Construction Budget, Landlord shall advise
Tenant of any special material, finish or fixture (other than Building
Grade) requested by Tenant that will result in a delay in Landlord's
construction schedule beyond the scheduled Commencement Date. In such
event, Tenant shall either modify its specifications so as not to
delay construction or be deemed to have accepted responsibility for
any resulting delay.
6. LOW VOLTAGE; PERMITS:
The Tenant shall be responsible for providing their own telephone,
computer, and security cable and/or wiring for the Premises. This work as it
relates to low voltage wiring, requires permitting and inspections by Miami-Dade
County. Failure of Tenant's vendors or contractors to obtain required permits
and associated inspections will result in a Tenant-caused delay in occupying the
space. Landlord shall provide such assistance as Tenant may reasonably request
in association with permits, and Tenant shall reimburse Landlord for any
out-of-pocket expenses in connection with such assistance, the cost thereof
being a permissible offset against the Tenant Improvement Allowance.
7. TENANT'S AS-BUILT VERIFICATION.
In no event shall Tenant or any contractor, subcontractor, supplier or any
party acting by, through or under Tenant rely on the Plans and Specifications or
any Building plans submitted by Landlord for the purpose of determining final
measurements for any systems, furnishings, cabinets, electrical, mechanical or
plumbing installations or any other type of installation by Tenant whatsoever,
it being clearly understood that Tenant shall obtain field as-built measurements
and as-built plans for such purposes.
(signature page follows)
EXECUTED BY the parties hereto simultaneously with the Fifth Amendment to
Lease and attached thereto as Exhibit "D".
Executed in the Presence of: AMERICAN PREPAID PROFESSIONAL SERVICES,
INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Signature Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & COO
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Print Name
Witness as to COMPBENEFITS
CORPORATION: COMPBENEFITS CORPORATION
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Signature Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & COO
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Print Name
WRC PROPERTIES INC.
/s/ ▇▇▇▇▇▇▇ ▇. Cairo Signature: /s/ ▇▇▇▇▇ St. Clair
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Signature Name: ▇▇▇▇▇ ST. CLAIR
Title: ASSISTANT SECRETARY
▇▇▇▇▇▇▇ ▇. Cairo Date: 10/29/01
Print Name
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
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Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
Print Name