**Exhibit 10.4**
**LEASE AGREEMENT**
     **THISLEASE AGREEMENT**(the “Lease”) made effective the**10** day of **December, 2004**, between**MC WEENEY SMITH PARTNERSHIP, a Florida general partnership,**whose address is c/o Jack Smith, 320 Running Wind Lane, Maitland, Florida 32751, hereinafterreferred to as the “Landlord”, which term shall mean and include its successors and assigns,wherever the context hereinafter so requires or admits; and **CMS of Central Florida, Inc.,**whoseaddress is 751 Central Park Drive, Sanford, Florida 32771, hereinafter sometimes referred to as“Tenant”, which term shall mean and include the said Tenant and its successors and assignswherever the context hereinafter so requires or admits.
W I T N E S S E T H :
     That in consideration of the covenants and conditions herein contained and inconsideration of the rents herein reserved to be paid by the Tenant, the said Landlord doeshereby covenant, stipulate and agree to and with the Tenant as follows:
     1.     Description of Premises. Landlord leases to Tenant the premises located at 751Central Park Drive (determined by Postal Service), Sanford, Florida 32771 (“Premises” or “DemisedPremises”), which contain approximately 12,000 square feet, and which are depicted in Exhibit“A.” The Premises are located in the Building on the property more particularly described asfollows: Lot 33, Sanford Central Park Phase II, Plat Book 54, Page 8 thru 10, Seminole County,Florida (the “Property”).
 2.  Term. The term of this Lease is for five (5) years beginning July 1, 2000.Tenant has given notice that they have exercised the option to renew this lease for anadditional five (5) years, which would begin on July 1, 2005, with the same terms andconditions, except that at the commencement of the renewal term the rental shall beincreased by 3% and shall increase annually thereafter at the rate of 5% per annum.
 3.  Rent. The base rent due and payable by Tenant hereunder is as follows:           Period Annual Rent Monthly Rent Monthly CAM Sales Tax TotalYear 5 $74,280 $6,190 $1,355 $528 $8,073*Year 6 $76,510 $6,375 $1,355 $541 $8,272Year 7 $80,330 $6,695 TDA TDA TDAYear 8 $84,350 $7,029 TDA TDA TDAYear 9 $88,570 $7,380 TDA TDA TDAYear 10 $93,000 $7,750 TDA TDA TDA
 

 

     In addition to the base rent, Tenant shall pay real estate Taxes, Insurance premiumsand Common Expenses as described in Paragraph 12 of this Lease (CAM). The term of current leaseis through June 30, 2005. The CAM will change yearly depending on insurance cost or building andproperty tax. The base rental shall be based upon the actual rentable square footage of thePremises, which is approximately 12,000 square feet. Tenant shall pay Landlord the first month’srent upon execution of this Lease, and succeeding payments shall be due in advance on the firstday of each month thereafter during the term of the lease. Rent for any partial month at thebeginning or end of the term shall be prorated. All rental payments shall be made to Landlord atthe address specified above. Tenant shall pay the rent as specified herein and in paragraph 4hereof. In addition, Tenant shall pay any sales or use taxes that arise in connection with therental of the property.
     4. Additional Rent. All Taxes, Insurance premiums, Common Expenses, andexpenses that Tenant assumes or agrees to pay hereunder, together with all interest andpenaltiesthat may accrue thereon in the event of the failure of Tenant to pay those items, and allotherdamages, costs, expenses, and sums that Landlord may suffer or incur, or that may become due,by reason of any default of Tenant or failure by Tenant to comply with the terms andconditionsof this Lease, shall be deemed to be additional rent, and, in the event of nonpayment,Landlordshall have all the rights and remedies as herein provided for failure to pay rent.
     5. Security Deposit. Tenant shall be required to pay a deposit to the Landlord at thetime of the execution of this Lease.
     6. Use. The Tenant may use the premises for assembly and distribution andaccompanying office use.
     7. Restriction on Use. Tenant shall not use the premises in any manner that willresult in a cancellation of any insurance policy, even if such use may be in furtherance ofTenant’s business purposes. Tenant shall not keep, use, or sell anything prohibited by anypolicyof fire insurance covering the premises, and shall comply with all requirements of theinsurersapplicable to the premises necessary to keep in force the fire and liability insurance.
     8. Waste, Nuisance, or Unlawful Activity. Tenant shall not allow any waste ornuisance on the premises. Tenant shall neither use nor occupy the demised premises or anypartthereof for any unlawful, disreputable, or ultrahazardous business purpose nor operate orconductits business in a manner constituting a nuisance of any kind. Tenant shall immediately, ondiscovery of any unlawful, disreputable, or ultrahazardous use, take action to halt suchactivity.
     9. Compliance With Laws. The Tenant shall promptly and fully comply with alllaws, rules, ordinances and regulations of any and all duly constituted authorities havingjurisdiction, concerning or affecting the demised premises and the operations of theTenant’sbusiness thereon.
 

 

     10. Easements, Agreements, or Encumbrances. The parties shall be bound by allexisting easements, agreements, and encumbrances of record relating to the demised premises,and Landlord shall not be liable to Tenant for any damages resulting from any action taken bya holder of an interest pursuant to the rights of that holder thereunder.
     11. Utilities. All applications and connections for necessary utility services onthe demised premises shall be made in the name of Tenant only, and Tenant shall be solely liablefor utility charges as they become due, including those for sewer, water, gas, electricity, andtelephone services.
     12. Common Expenses, Taxes and Insurance. Tenant shall pay Landlord, throughoutthe term of this Lease, in addition to the base rent and as additional rent due hereunder, allCommon Expenses, Taxes and Insurance as such terms are defined below. The Landlord may, atits option, estimate its annual costs of such Common Expenses, Taxes and Insurance and Tenantshall pay one-twelfth of Tenant’s Share of such estimated annual costs on the same datemonthlyrent is due. In such event, Landlord shall determine its actual annual costs of CommonExpenses, Taxes and Insurance at the end of each calendar year and shall notify Tenant of anyadjustments due, which shall be paid by or credited to Tenant, as the case may be, withinthirty(30) days after such notice. If Landlord does not elect to collect monthly estimated costs,theTenant shall pay to Landlord the Prorate Share of actual Common Expenses, Taxes andInsurance within thirty (30) days after Landlord’s billing thereof. Tenant shall also paysales taxdue on such additional rent. Such costs shall be prorated for any partial calendar year atthebeginning or end of the lease term.
          Common Expenses shall include the total cost of all maintenance, repair and replacementwhich Landlord performs or causes to be performed to or for the benefit of the common areaincluding the cost of water, sewer and other utilities used for the common area and the cost oflandscaping and grounds keeping and the cost of service contracts and other obligations relatedto the maintenance, repair and operation of the common area and the cost of water, sewer andtrash removal provided to the Premises and to all other rentable areas in the Building. CommonExpenses shall also include the cost of maintenance, repair and replacement which Landlordperforms or causes to be performed to or for the benefit of other amenities and improvements forthe common use or benefit of occupants of the Building including landscaping, irrigation andgrounds keeping of entrance medians and signs, roadways, drainage retention areas and the cost ofservice contracts and other obligations related to the maintenance, repair and operation of suchamenities and improvements. Landlord shall maintain accurate records concerning the CommonExpenses, which Tenant may examine during Landlord’s normal business hours at Landlord’s officeupon reasonable notice not more frequently than quarterly.
     Taxes shall include the total amount of all real estate taxes and assessments leviedor imposed upon the Property by any governmental authority having jurisdiction thereover. Tenantshall also pay personal property taxes assessed or imposed in connection with all personal
 

 

property of Tenant maintained in, upon or about the Premises.
     Insurance shall include the total costs incurred by Landlord for casualty and liabilityinsurance regarding the Property including coverage against loss or damage by fire and suchother risks as of now or hereafter under so-called “all risk” insurance coverage in common usein the Central Florida Area and including, if Landlord deems necessary, coverage for loss ofrent, earthquake, flood and sink-hole damage.
     13. Fire Insurance. The Landlord shall, procure, and at all tunes during the term ofthis Lease and any renewal or extension thereof, maintain fire and extended coverage insuranceon the buildings and improvements located upon the demised premises in an amount not less thanone hundred percent (100%) of the full insurable value thereof, in a company or companiesacceptable to Landlord licensed and authorized to do insurance business in the State ofFlorida.The Tenant shall provide insurance for its personal property and trade fixtures brought ontothePremises.
     14. Licenses and Permits. The Tenant shall pay for all licenses and permits requiredby law for the operation by the Tenant of its business on the demised premises during thecontinuance of the term of this Lease or any renewal or extension thereof, and the Landlord shallnotbe liable or responsible for any part thereof.
     15. Alterations,Additions, and Improvements.
          (a) Tenantmay at any time during the lease term, subject to the conditions setforth below and at its own expense, make any alterations, additions or improvements in and tothe demised premises. Alterations shall be performed in a workmanlike manner and shall notweaken or impair the structural strength, or lessen the value, of the building on thepremises, orchange the purpose for which the building, or any part thereof, may be used.
          (b) Conditions with respect to alterations, additions or improvements are asfollows:
               (i) Before commencement of any work all plans and specifications shall be filed with andapproved by all governmental departments or authorities having jurisdiction and any publicutility company having an interest therein, and all work shall be done in accordance withrequirements of local regulations. The plans and specifications for any alteration, addition orimprovement shall be submitted to Landlord for approval prior to commencing work.
               (ii) Prior to the commencement of any work, Tenant shall pay the amount of any increase inpremiums on insurance policies provided for herein because of endorsements to be made coveringthe risk during the course of work.
          (c) All alterations, additions and improvements on or in the demised premises at thecommencement of the term, and that may be erected or installed during the term, shall
 

 

become part of the demised premises and the sole property of the Landlord, except that allmovable trade fixtures shall be and remain the property of Tenant.
     16. Repairs and Maintenance.  Tenant shall, at all times during the lease and at itsown cost and expense, maintain the demised premises (including the air conditioning, heating,plumbing and electrical systems) and keep them in good repair and shall use all reasonableprecautions to prevent waste, damage, or injury to the demised premises. Provided, however,that Landlord shall, at its own cost and expense, make all structural repairs and maintain andrepair the roof and the exterior of the demised premises (with the exception of plate glasswindowsand doors). Tenant shall be responsible for structural repairs necessitated by anyimprovementsor alterations made to the premises by the Tenant and for any repairs to the exterior causedbythe negligence or misuse by the Tenant, its agents, employees or invitees.
     17. Parking. Landlord shall provide, for the nonexclusive use of Landlord and Tenantherein and other tenants of the building, of which the said demised premises are a part, ifany,and their agents, employees and invitees, a parking area as shown and delineated upon theplansof said building by which said building has been built. Landlord reserves the right andprivilegeat any and all times to assign and reassign specific parking spaces in said parking area toTenantand to the other tenants in said Building. It is further mutually understood and agreed thatLandlord shall have the right, privilege and option at any time to alter all or any part ofsaidparking area.
     18. Acceptance of Premises. Landlord represents that the premises are in fitconditionfor use by Tenant. Acceptance of the premises by Tenant shall be construed as recognitionthatthe premises are in a good state of repair and in sanitary condition, and Tenant will acceptthepremises in their improved condition after a walk-through with punch list items perImprovementPlans as described in Paragraph 45(a) below.
     19. Quiet Enjoyment. The Landlord covenants and agrees that it has the full andunrestricted right and lawful authority to enter into this Lease. Tenant, upon paying saidrent andother charges herein and otherwise fully and punctually performing all the other terms andconditions imposed on Tenant, shall and may peaceably and quietly have, hold and enjoy thepremises hereby demised for the term aforesaid free from disturbance by the Landlord oranyoneclaiming by, through or under the Landlord.
     20. Access to Premises. Tenant shall permit Landlord or its agents to enter thedemised premises at all reasonable hours to inspect the premises to determine whether theTenantis complying with the provisions of this Lease, and for the purpose of doing any otherlawful actsnecessary to protect the Landlord’s interest in the premises.
     21. Insurance and Indemnity. The Tenant shall indemnify, save and hold harmless theLandlord from and against any and all claims, or liability for injury or damage to anyperson orproperty occurring in or about the premises occurring during the term of this Lease, whensuchinjury or damage shall be caused in whole or in part by the act, neglect, fault of oromission ofany duty of same by Tenant, its agents, servants, employees and invitees.
 

 

     The Tenant shall, at its own expense, procure, and at all times during the term of this Leasecontinue in force and effect:
         (a) Broadform comprehensive general liability insurance including: (i)premises/operations, (ii) products/completed operations hazard, (iii) broad form contractual,and(iv) personal injury, including death. This general liability insurance shall include limitsofliability of not less than One Million Dollars ($1,000,000.00) combined single limits forbodilyinjury and property damage.
         (b) Worker’scompensation insurance with statutory limits of liability.
         (c) Such additional insurance which Landlord may require, in its discretion,from time to time.
     Certificates of insurance in form acceptable to Landlord shall be provided to Landlord atthe commencement of the term. The insurance policies shall name the Landlord and Tenant asinsured and shall provide that the policies may not be canceled or materially altered until atleast thirty (30) days’ prior written notice has been given to the Landlord. The insurancecarriers providing such insurance shall have no less than “A” rating according to A. M. Best’srating and shall be authorized to do business in Florida. Nothing contained herein shall absolveLandlord for any injuries or damage caused by Landlord’s negligence or the negligence ofLandlord’s agents, servants or employees.
     22. Tenant’s Property. Any property brought onto the demised premises by theTenant shall be at the sole risk of the Tenant. By signing this Lease the Tenant agrees thatuponsurrender or abandonment of the demised premises, as defined by Florida Statutes, theLandlordshall not be liable or responsible for the storage or disposition of the Tenant’s personalproperty.
     23. Destruction of Premises. If the Premises shall be destroyed or damaged by fire orother casualty during the term of this Lease, to the extent so that said premises shall beunfit, inwhole or in part, for the occupancy thereof by Tenant, the Landlord shall have the right torebuild and repair within 120-days after casualty the leased premises to substantiallyconform tothe premises as were in existence prior to the damage or destruction, and to apply theproceeds ofinsurance provided by Tenant against the costs thereof; provided that in the event Landlordelectsnot to restore or rebuild said premises that Landlord shall furnish to Tenant written noticeof suchelection not to proceed within fifteen (15) days of the date of damage or destruction to saidpremises.
     If  Landlord elects not to restore or rebuild and has furnished the notice as providedherein, then Tenant shall have the right but not the obligation to restore or rebuild saidpremises and shall have full use of the total insurance proceeds available by virtue of thedamage or destruction to the premises.
     If  Tenant elects to restore or rebuild said premises, Tenant shall furnish toLandlord
 

 

notice in writing of such election within fifteen (15) days from date of receipt ofLandlord’s notice not to restore or rebuild. If Tenant rebuilds the rent shall continue asbefore.
     If  neither Landlord nor Tenant elects to restore or rebuild within the time provided forherein, then this Lease shall terminate and Tenant shall vacate the premises within thirty (30)days from date of such termination and the insurance proceeds shall be the Landlord’s.
     If such restoration or rebuilding shall be performed by Landlord or Tenant, such work shallbe commenced not later than thirty (30) days after the event of such damage or destruction ifperformed by Landlord, and within fifteen (15) days of the receipt of election not to restore orrebuild if performed by Tenant. The party performing such restoration or rebuilding shallthereafter prosecute the work with diligence to completion, the same in any event to becompleted within a reasonable time.
     In the event of total destruction of the building improvements or such damage thereto asshall render the same unfit for the carrying on of Tenant’s business on the demised premises, thepayment of rent shall cease until the building is rebuilt or until both parties elect not torebuild. Rental shall again commence in full if and when the improvements shall have beensubstantially completed.
     In the event of partial destruction or such damage that the business of Tenant may continueto be carried on without substantial interruption, and with or without temporary repair, therent shall continue and not be abated.
     In the event of the partial destruction or damage to the premises so that the business ofTenant may be carried on but with substantial impairment, the rent shall be adjusted pro rata toabate that part of the rent attributable to the unfit portion for that period of time.
     24. Condemnation. If the whole of the demised premises shall be taken for any publicor quasi public use under any statute by right of eminent domain, or if any part of the demisedpremises is so taken and the part not so taken is insufficient for the operation of Tenant’sbusiness, this Lease and the term granted by it shall cease and expire as respects the entiredemised premises on the date when possession shall be given by Tenant. All rents and othercharges shall be prorated and paid to that date, and Landlord shall refund to Tenant all rentsand other charges paid by Tenant in respect of any periods subsequent to such date. The Landlordshall be entitled to all proceeds of any condemnation; provided, however, that this provisionshall not prohibit Tenant from prosecuting by separate action against the condemning authorityany claim it may have for business damages.
     25. Construction Liens. The Tenant shall not do or suffer anything to be donewhereby the land and building of which the demised premises are a part may be encumbered by anyconstruction or mechanic’s lien, and shall, whenever and as often as any construction ormechanic’s lien is filed against the said land and building purporting to be for labor ormaterials furnished or to be furnished to the Tenant, discharge the same of record within ten(10) days after the date of filing. Notice is hereby given that the Landlord shall not be liablefor any labor or materials furnished or to be furnished to the Tenant upon credit, and that noconstruction or
 

 

mechanic’s or other lien for any such labor or materials shall attach to or affect thereversionary or other estate or interest of the Landlord in and to the land and building ofwhich the premises herein demised are a part.
     26. Landlord’s Lien. Except for purchase money liens and liens which are perfectedprior to the time the personal property comes onto the premises, the Landlord shall have thefirstlien paramount to all others on every right and interest of the Tenant in and to this Leaseand onthe buildings now or hereafter constructed on the premises, and on the personal property oftheTenant which may be contained within the premises, which lien is granted for the purpose ofsecuring the payment of rent, taxes, assessments, charges, liens, penalties and damages hereincovenanted to be paid by the Tenant, and for the purpose of securing the performance of anyandall of the covenants, conditions and obligations arising under this Lease, the same to beperformed and observed by the Tenant.
     27. Subordination. This Lease shall be subject and subordinate at all times to anyandall mortgages that now or may encumber the demised premises and to any renewal, modification,consolidation, replacement, and extension of any such mortgage; provided that the holder ofanysuch mortgage shall enter into a written agreement with Tenant to the effect that in theevent offoreclosure or other action taken under the mortgage by the holder of the mortgage, thisLeaseand the rights of the Tenant under it shall not be disturbed but shall continue in full forceandeffect so long as Tenant shall not be in default. The Tenant shall execute any instrumentsubordinating the interest of Tenant under this Lease to the lien of such mortgage thatLandlordor the mortgagee may at any time desire, and Tenant shall duly comply with all of theprovisionsof any mortgage to which this Lease is subordinate, except the payment of interest andprincipalthereunder.
     28. Assignment, Sublease, or License. Tenant shall not assign or sublease the premises,or any right or privilege connected therewith, or allow any other person except agents andemployees of Tenant to occupy the premises or any part thereof without first obtaining thewritten consent of Landlord. A consent by Landlord shall not be a consent to a subsequentassignment, sublease, or occupation by other persons. An unauthorized assignment, sublease, orlicense to occupy by Tenant shall be void and shall terminate the lease at the option ofLandlord. The interest of Tenant in this Lease is not assignable by operation of law withoutthe written consent of Landlord. Landlord agrees that written consent will not be unreasonablywithheld regarding assignment or subleasing of the premises provided that Tenant shall at alltimes remain primarily liable. For the purpose hereof, the transfer of a majority of the issuedand outstanding capital stock of any corporate Tenant, or of a majority of the total interestsof any partnership Tenant, however accomplished, shall be deemed to be an assignment of thisLease.
     29. HazardousSubstances.
           (a) Indemnification. Tenant hereby agrees to indemnify Landlord and holdLandlord harmless from and against any and all losses, liabilities, damages, injuries, expenses,and costs, including, without limitation, reasonable attorneys’ fees, of any settlement,judgment, or claims of any and every kind whatsoever paid, incurred, suffered by, or assertedagainst,
 

 

Landlord, by any person, entity or governmental agency, for, with respect to, or as a direct orindirect result of, the presence on or under, or the escape, seepage, leakage, spillage,emission, discharge or release from the Premises of any Hazardous Substances.
     This indemnification shall specifically include, without limitation, any losses,liabilities, damage, injuries, expenses, and costs, including, without limitation, reasonableattorney’s fees, of any settlement or judgment or claims asserted or arising under theComprehensive Environmental Response, Compensation and Liability Act, the Superfund Amendmentand Reauthorization Act, the Resource Conservation Recovery Act, the Federal Water PollutionControl Act, the Federal Environmental Pesticides Act, the Clean Water Act, the Clean Air Act,any so called federal, state or local “Superfund” or “Superlien” statute, or any other Federalor State statute, law, ordinance, code, rule, regulation, order or decree (all as amended)regulating, relating to or imposing liability or standards of conduct concerning any HazardousSubstances.
     Provided, however, the indemnification herein, must arise out of (i) the presence orsuspected presence on or under the Premises of any Hazardous Substances, or any release ordischarge of any Hazardous Substances on, under or from the Premises, which condition existsduring the term of this Lease, as the same may be extended, and which are caused by the Tenant,its employees, agents or invitees, or (ii) any activity carried on or undertaken on or off thePremises during the term of the Lease, as the same may be extended, whether by Tenant or anyemployees, agents, contractors or subcontractors of Tenant, in connection with the handling,treatment, removal, storage, decontamination, clean-up, transport or disposal of any HazardousSubstances located in, on or under the Premises.
         (b) Definition of Hazardous Substances. For purposes of this Lease, the term“Hazardous Substances” shall mean and include those elements or compounds which arecontained in the list of hazardous substances adopted by the United States EnvironmentalProtection Agency (“EPA”) and the list of toxic pollutants designated by Congress or the EPAordefined by any other federal, state or local statute, law, ordinance, code, rule, regulation,orderor decree regulating, relating to, or imposing liability (including strict liability) orstandards ofconduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now orat any time hereinafter in effect.
         (c) Notification. If Tenant receives any notice or knowledge of (i) theoccurrence of any event involving the use, spill, release, leak, seepage, discharge orcleanup ofany Hazardous Substance, or (ii) any complaint, order, citation or other notice with regardto airemissions, water discharges, or any other environmental, health or safety matter affectingTenantor the Premises (an “Environmental Complaint”) from any person or entity (including, withoutlimitation, the EPA) then Tenant shall immediately notify Landlord orally and in writing ofanysuch notice, and, if the Environmental Complaint is in writing, shall immediately deliver acopyof the Environmental Complaint to Landlord.
         (d) Landlord’s Right to Act. Landlord shall have the right, but not theobligation, to enter onto the Premises or to take such other actions as it deems necessaryoradvisable to cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any
 

 

such Hazardous Substance or Environmental Complaint following receipt of any notice from anyperson or entity (including, without limitation, the EPA) asserting the existence of anyHazardous Substance or an Environmental Complaint pertaining to the Premises or any part thereofwhich, if true, could result in an order, suit or other action against Landlord and/or which, inthe sole opinion of Landlord, could have an adverse impact on the value of the Premises orotherwise jeopardize Landlord’s ownership of the Premises. Any funds of Landlord used for anypurpose referred to in this subparagraph shall become additional rent and shall be payable toLandlord on demand.
         (e) Survival. The provisions of this Section shall survive the terminationof this Lease.
     30. Default or Breach. Each of the following events shall constitute a defaultor breach of this Lease by Tenant:
         (a) If Tenant shall file a petition in bankruptcy or insolvency or forreorganization under any bankruptcy act, or shall voluntarily take advantage of any such actbyanswer or otherwise, or shall make an assignment for the benefit of creditors.
         (b) If involuntary proceedings under any bankruptcy law or insolvency actshall be instituted against Tenant, or if a receiver or trustee shall be appointed for all orsubstantially all of the property of Tenant, and such proceedings shall not be dismissed orthereceivership or trusteeship vacated within twenty (20) days after the institution orappointment.
         (c) If Tenant shall fail to pay Landlord any rent or additional rent when therent shall become due and shall not make the payment within five (5) days after the date saidrentshall be due.
         (d) If Tenant shall fail to perform or comply with any of the conditions of thisLease other than the nonpayment of rent and if the nonperformance shall continue for a periodoftwenty (20) days after notice thereof by Landlord to Tenant, or, if the performance cannot bereasonably had within the twenty (20) day period, Tenant shall not in good faith havecommencedperformance within the twenty (20) day period and shall not diligently proceed to completionofperformance.
         (e) If Tenant shall vacate or abandon the demised premises.
         (f) If this Lease or the estate of Tenant hereunder shall be transferred to orshall pass to or devolve on any other person or party, except in the manner herein permitted.
         (g) If Tenant fails to take possession of the demised premises on the termcommencement date.
     31. Remedies for Tenant’s Default. If the Tenant shall make any defaulthereunder, the Landlord shall have the following remedies in its sole discretion in addition toany other
 

 

remedies permitted at law or in equity:
         (a) Bring suit for the breach, which has occurred without affecting theobligations of the parties to perform the balance of the lease.
         (b) Declare the entire rental for the balance of the term of this Lease due andpayable.
         (c) Reenter the premises without being liable for damage therefor, and reletthe property, or any part thereof, or operate the same, with or without the Tenant’sfurnishings,for the balance of the term and receive rents therefor and apply the same first to the paymentofexpenses of reasonable redecorating and making necessary repairs to the premises, attorneys’fees, brokers’ commissions, advertising and all other reasonable expenses of the Landlord inreentering the premises and reletting the premises; and second, to the payment of the renthereunder.
         (d) Terminate this Lease by giving the Tenant written notice of termination which shall not excuse breaches of this Lease which have already occurred. Terminationmayoccur only by written notice.
     32. Landlord’s Right to Perform. Except as otherwise provided herein, if the Tenantfails to perform any of the covenants required to be performed by Tenant, and such failurecontinues after notice as provided in paragraph 31 herein, then Landlord may, but shall notberequired to perform such act or thing with respect to which Tenant is in default, at theexpense ofTenant. Tenant shall repay such expense to Landlord. Any act or thing done by Landlordpursuant to the provisions hereof shall not be construed a waiver of any such default byTenant orwaiver of any covenant, term, or condition of this lease, or of any other right or remedy ofLandlord. Notice to Tenant shall not be required if the period for notice provided inparagraph31 or any other paragraph of this lease will jeopardize the premises or the rights of theLandlord.
     33. Force Majeure. If any part of the demised premises is destroyed or damaged byfire or any other cause, or if any other casualty or unforeseen occurrence renders thefulfillmentof this Lease by the Landlord impossible, then this Lease shall be terminated, the Tenantshall beliable for rent, charges for support personnel and services, additional utility charges whichhaveaccrued only as of the time of termination; provided, however, if such impossibility ofperformance shall be due to the act or omissions of Tenant, its agents, employees, members,licensees or invitees, then Tenant shall be liable for the entire rent charged hereunder aswell asall accrued charges in addition to such other damages as may result from such acts oromissions.Tenant hereby waives any claim for damages or compensation from Landlord on account of suchtermination.
     34. Late Fee and Interest on Overdue Rent. Tenant shall pay a late fee of $75.00 foreach installment of rent that is more than ten (10) days overdue. Such late fee shall compensateLandlord for additional processing fees involved. All rent overdue shall bear interest at therate of twelve percent (12%) per annum, after it has been due and payable for ten (10) days.
 

 

     35. Attorneys’ Fees. In the case of the failure of either party hereto to perform andcomply with any of the covenants and conditions hereof within the time herein specified, andthesaid rent, or damages for the breach of any covenant or condition, is enforced or collected bysuitor through an attorney at law, whether suit be brought or not, the party so failing to performandcomply hereby agrees to pay to the other party hereto a reasonable sum of money for attorneys’fees, together with the costs, charges, and expenses of such collection or other enforcementofrights in any suit, or otherwise. The prevailing party in any such litigation shall beentitled toattorneys’ fees from the non-prevailing party.
     36. Waiver. The failure of either of the parties hereto in one or more instances toinsist upon strict performance or observance of one or more of the covenants or conditionshereof, or to exercise any remedy, privilege, or option herein conferred upon or reserved tosuchparty, shall not operate and not be construed as a relinquishment or waiver for the future ofsuchcovenant or condition or of the right to enforce the same or to exercise such privilege,option, orremedy, but the same shall continue in full force and effect.
     37. Surrender of Possession. Tenant shall, on the last day of the term, or onearliertermination and forfeiture of the lease, peaceably and quietly surrender and deliver thedemisedpremises to Landlord free of subtenancies, including all buildings, additions, andimprovementsconstructed or placed thereon by Tenant, except movable trade fixtures, all in good conditionandrepair. Tenant shall, if not in default hereunder, remove its equipment, goods, tradefixtures andeffects and those of all persons claiming by, through or under it, provided that such removaldoesnot cause irreparable damage to the premises. Any trade fixtures or personal property notusedin connection with the operation of the demised premises and belonging to Tenant, if notremoved at the termination, and if Landlord shall so elect, shall be deemed abandoned andbecome the property of Landlord without any payment or offset therefor. Landlord may removesuch fixtures or property from the demised premises and store them at the risk and expense ofTenant if Landlord shall not so elect. Tenant shall repair and restore all damage to thedemisedpremises caused by the removal of equipment, trade fixtures, and personal property. Tenant,ifrequested by Landlord, shall remove all business signs placed on the premises by Tenant andrestore the portion of the premises on which they were placed in the same condition as whenreceived.
     38. Holding Over. The failure of Tenant to surrender the demised premises on thetermination of the lease term, or any renewals thereof, and the subsequent holding over byTenant, with or without the consent of Landlord, shall result in the creation of a tenancy atwill at a monthly rental of the last monthly rental due under the terms of this Lease payableon the first day of each month in which the Tenant holds over. Should a tenancy at will becreated under the provisions of this section, the tenancy may subsequently be terminated byeither party hereto by that party giving thirty (30) days’ written notice of the intention toterminate the tenancy to the other party to this Lease. This provision does not give Tenant anyright to hold over at the expiration of this term, and all other terms and conditions of thisLease shall remain in force during any tenancy at will created by any holding over by Tenant.
 

 

     39. Notices. All notices to be given with respect to this Lease shall be in writing.Notices may be hand delivered, may be sent by registered or certified mail, postage prepaid andreturn receipt requested, or may be sent by overnight delivery by a commercial delivery serviceto the party to be notified at the address set forth herein or at such other address as eitherparty may from time to time designate in writing.
     Notices shall be deemed given when actually received; provided, however, notice if notsooner received shall be deemed to have been given three (3) days after it is deposited in theUnited States mails if deposited in the manner prescribed herein. Nothing herein shall beconstrued to preclude personal service of any notice in the manner prescribed for personalservice of a summons or other legal process.
     40. Total Agreement; Applicable to Successors. This Lease contains the entireagreement between the parties and cannot be changed or terminated except by a writteninstrument subsequently executed by the parties hereto. This Lease and the terms andconditionshereof apply to and are binding upon the successors and assigns of both parties.
     41. ApplicableLaw. This Lease shall be governed by and construed in accordancewith the laws of the State of Florida.
     42. Time of the Essence. Time is of the essence and in all provisions of thisLease.
     43. Severability. If any term or provision of this Lease shall to any extent be heldtobe invalid or unenforceable under the applicable law, the remaining provisions of this Leaseshallnot be affected thereby but shall remain in full force and effect.
     44. Brokerage. None.
     45. SpecialClauses.
           (a) Tenant Improvements. Landlord shall prepare plans and specifications forimprovements to the Premises (the “Tenant Improvements”) which plans and specifications shall beapproved by Landlord and Tenant within fifteen (15) days from execution of this Lease (the“Improvement Plans”). Landlord shall cause the Premises to be improved in accordance with theImprovement Plans. Landlord shall pay for the cost of such Tenant Improvements up to an allowanceof $150,000. Should the cost of improving the Premises in accordance with the Improvement Plansexceed such allowance or should Tenant make changes to the Improvement Plans, which increases thecost of Tenant Improvements, Tenant shall pay such excess costs at or prior to Tenant’s occupancyof the Premises. Landlord shall be responsible for increase or excess costs of TenantImprovements to the extent caused by changes to the Improvement Plans required by governmentalauthority and not initially included in the design prepared by Landlord’s contractor.
           (b) Rules and Regulations. Tenant shall abide by all rules and regulationsgoverning the Property, which rules and regulations shall be established by Landlord.
 

 

     IN WITNESS WHEREOF, the Landlord and Tenant have hereunto set their hands and seals,all as of the day and year first above written.       Witnesses: **LANDLORD:**         **MC WEENEY SMITHPARTNERSHIP**/s/                   /s/       BY: /s/  Jack Smith      Jack Smith, General Partner         **TENANT:**       /s/ CMS of Central Florida,Inc.       /s/       By: /s/ Adam Blumenfeld             Printed Name:  Adam Blumenfeld        Title: President