LEASE AGREEMENT
1. PARTIES
THIS LEASE AGREEMENT made this 7h day of January, 1993, by and between STS
Buildings Associates, L.P., a Delaware limited partnership, whose address is 000
Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000, hereinafter referred to as
LANDLORD, and KOS PHARMACEUTICALS, INC., a Florida corporation whose address is
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, hereinafter
referred to as TENANT.
WITNESSETH
2. DEMISED PREMISES
LANDLORD hereby demises and leases unto TENANT, and TENANT hereby leases
from LANDLORD, those certain premises situated in the County of Broward, State
of Florida, identified as
Xxxxx 00
Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
(hereinafter referred to as either the "Demised Premises" or "Premises") of that
certain building known as Oakwood Business Center Building I, (the "Building")
located at Xxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, which Demised
premises are outlined in red on the plan attached hereto and marked Exhibit "A".
The "Rentable Area of the Premises" is hereby stipulated and mutually agreed to
by the parties to be FIVE THOUSAND SEVEN HUNDRED FIFTY (5,750) square feet,
whether the same should be more or less as a result of completion of the
Premises by Landlord for occupancy or for any other reason. The "Rentable Area
of the Building" in which the Premises are located is hereby stipulated and
mutually agreed to by the parties to be Sixty Three Thousand One Hundred Eighty
One (63,181) square feet.
3. TERM
Landlord will notify Tenant ten (10) days prior to completion of Demised
Premises and the Term of this Lease will commence ten (10) days after completion
of Demised Premises which completion shall be evident by a Certificate of
Occupancy and shall end (unless sooner terminated as hereinafter provided) four
(4) years after the last day of the first month of the term
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of this Lease. The parties hereto agree to execute, within thirty (30) days
after the COMMENCEMENT DATE hereof, Supplement I to this Lease, in the form
attached hereto, fixing the definite dates of commencement and expiration of the
term of this Lease. By occupying the Demised Premises as a TENANT, or by
installing fixtures or equipment or by performing finishing work, TENANT shall
be deemed to have accepted the Demised Premises "AS IS" and to have acknowledged
that the Demised Premises are in the condition required by this Lease, excepting
conditions that cannot be observed or known about prior to occupancy up to a
period of four (4) months after issuance of Certificate of Occupancy, latent
defects or omissions in LANDLORD'S construction.
4. TENANT'S PLANS AND SPECIFICATIONS:
TENANT agrees to cooperate with the LANDLORD in preparing plans and
specifications covering all work to be done by or for TENANT (as provided in
Exhibit "B" of this Lease captioned "Leasehold Improvements") in the Demised
Premises. Such plans and specifications shall be prepared at LANDLORD'S sole
expense by a duly licensed architect or engineer selected by LANDLORD, in such
detail as LANDLORD may reasonably require, and TENANT agrees that no work shall
commence on any of the aforesaid Leasehold Improvements until LANDLORD and
TENANT have approved such plans and specifications in writing, which plans and
specifications when so approved shall be designated Exhibit "C" and attached
hereto and made a part hereof by reference ("Plans and Specification"). TENANT
shall schedule and complete a meeting with LANDLORD'S architect for the purpose
of providing any information, including TENANT'S finish schedule, required by
LANDLORD'S architect in order for him to prepare the Plans and Specifications.
Such meeting shall be scheduled by TENANT not later than ten (10) days from the
date of such request by LANDLORD. TENANT also agrees to cause its review of the
Plans and Specifications provided by LANDLORD to be completed and any comments
thereon to be provided to LANDLORD within ten (10) days from delivery of same by
LANDLORD to TENANT. TENANT shall furnish TENANT's finishing specifications
within twenty (20) days from the date TENANT and LANDLORD agree upon final Plans
and Specifications for the Demised Premises. In the event that TENANT fails to
perform its obligations within the time period set forth herein, then TENANT
shall be deemed to have approved the Plans and Specifications submitted to
TENANT for review and TENANT shall have no further time to approve same.
LANDLORD and TENANT agree to cooperate with each other in good faith to finalize
the Plans and Specifications and finishing specifications for the
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Demised Premises, all of which shall be subject to the approval of both LANDLORD
and TENANT, which approval shall be granted in good faith and which shall not be
unreasonably withheld.
Any changes to TENANT's Plans and Specifications requested by TENANT, after
same have been approved in their final form by LANDLORD and TENANT, shall be
subject to LANDLORD's approval and, if LANDLORD so approves same, TENANT shall
pay any and all extra costs that my be incurred by LANDLORD as a result of such
change immediately upon LANDLORD'S request therefor.
In the event that TENANT fails to act promptly or in good faith with regard
to Plans and Specifications in accordance with the schedules set forth in this
paragraph, LANDLORD at its option may cancel this Lease by giving written notice
thereof to TENANT within ten (10) days of the expiration of any such schedule.
5. BASE RENT
The Annual Base Rent shall be THIRTY SEVEN THOUSAND THREE HUNDRED FOUR AND
96/100 DOLLARS ($37,374.96) and shall be paid by TENANT to LANDLORD at its
principal office or that of its agent or at any other place hereafter designated
in writing by LANDLORD, in equal monthly installments of Three Thousand One
Hundred Fourteen and 58/100 DOLLARS ($3,114.58), on or before the first day of
each month during the term hereof.
The first month's Base Rent shall be paid simultaneously with execution of
this Lease, receipt of which is hereby acknowledged by LANDLORD. On the
Commencement Date, TENANT shall pay a pro rata amount of rent, if any, for the
period from the Commencement Date to the first day of the next calendar month.
TENANT shall promptly pay any and all Rent due hereunder at the times and at the
address for LANDLORD stated above. TENANT shall promptly pay charges for work
performed on order of TENANT and any other charges that accrue under this Lease.
If any part of the Rent or other charges shall remain due and unpaid for five
(5) days after the same become due and payable, LANDLORD shall have the option
(in addition to all other rights and remedies available to it by law and in
equity) of assessing against TENANT a "late charge" equal to five (5) cents for
every dollar of Rent which is past due, which late charge assessment shall be
deemed to be Additional Rent. The term Annual Base Rent may hereinafter by
referred to as "Base Rent", "Annual Base Rent", or "Rent".
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LANDLORD shall have the option to assess a charge against TENANT, if any of
TENANT's payment checks shall be returned to LANDLORD marked "NSF" for
insufficient funds, in the amount of $25.00. Additionally, if at any time during
the Term of this Lease, including any extensions or option terms, LANDLORD shall
receive any two payment checks from TENANT returned to LANDLORD marked "NSF"
then LANDLORD may demand that TENANT make the balance of its rental payments by
cashier's check.
TENANT may be instructed by LANDLORD to make rental payments to a "lock
box", at Southeast Bank or such other institution as LANDLORD may designate. Due
to the nature of the handling of such payments, those which LANDLORD would
normally not accept under the below circumstances may be deposited in LANDLORD's
account anyway.
Therefore, in the event that the payment made by TENANT is in an amount
which is less than what is due or, in the event that TENANT has received a
statutory notice and failed to comply with its demands and/or litigation is
pending concerning TENANT's nonpayment of rent or as a result of other defaults
by TENANT under the Lease, then, notwithstanding the fact that the rental
payment received may be deposited in LANDLORD's "lockbox" at Southeast Bank or
such other institution utilized for this purpose by LANDLORD, same SHALL NOT BE
DEEMED ACCEPTED unless and until the default which is the subject of the above
actions is cured to the satisfaction of the LANDLORD and as provided under the
Lease and Florida law. Such DEPOSITED BUT UNACCEPTED RENTAL PAYMENT(S) will be
refunded to TENANT on a LANDLORD issued check within a reasonable time after
such deposit is made. Such deposit of TENANT's check, under the above
circumstances, shall in no way prejudice LANDLORD's rights under Florida law
and/or the Lease.
6. ADDITIONAL RENT
(A) In Addition to Base Rent, TENANT shall, for each calendar year or
portion thereof, pay to LANDLORD "Additional Rent" equal to "TENANT's
Proportionate Share" (as hereinafter defined) of the aggregate of "Operating
Expenses" (as hereinafter defined) for the Building and Premises, "Insurance"
(as hereinafter defined), and "Taxes" (as hereinafter defined) for the
applicable calendar year.
(i) "TENANT's Proportionate Share" shall mean the percentage which the
then current Rentable Area of the Premises bears to the total Rentable Area
of the Building, which share is hereby stipulated and agreed to be 9.1%.
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(ii) "Taxes" shall mean all impositions, taxes, assessments (special or
otherwise) and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and
unforeseen, and substitutes therefor (except only LANDLORD's income taxes)
attributable in any manner to the Building and the land upon which it is
situated or which is used in conjunction with the Building (the "Land"), or
any part thereof, or any use thereof, or any equipment, fixtures or other
facility located therein or thereon or used in conjunction therewith, and
including all costs incurred by LANDLORD in contesting same and/or
negotiating with public authorities as to same. If the Building and/or Land
is for any reason included along with properties in a particular tax xxxx,
then LANDLORD shall equitably apportion the tax billed among all properties
covered by the particular tax xxxx.
(iii) "Insurance" shall mean the cost to LANDLORD of all casualty
(including all extended coverages), liability, flood, hazard, workmen's
compensation, rent loss, and other insurance maintained by LANDLORD, in
LANDLORD's sole discretion, on the Building and Land and/or LANDLORD's
personal property used in connection therewith.
(iv) "Operating Expenses" shall mean the total cost and expense
incurred in operating, repairing and maintaining the Building and Land,
excluding only Taxes and Insurance. Operating Expenses shall include,
without limitation, window cleaning, pest control, inspection and
maintenance of fire and alarm and protection systems, community association
fees (if any), gardening and landscaping, the cost of repairs and
maintenance of the Building, parking area surfacing and striping, lighting,
equipment, sanitary control, removal of trash, rubbish, garbage and other
refuse, sewerage facilities, utility lines and drainage facilities, water,
sewer, electric and other utilities not directly paid for by tenants of the
Building, painting, depreciation of machinery and equipment used in such
maintenance, the cost of management and administration and the cost of
personnel to implement services and to police the Building and Land.
Operating Expenses shall not include any cost or expense for which LANDLORD
is entitled to be reimbursed by an insurance company or any other tenant of
the Building.
Operating Expenses also shall not include any cost or expense for
replacement of elevators/escalators, initial cost of interior and exterior
landscaping, contributions to local civic organizations, income or
corporate taxes, capital gains taxes, inheritance
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taxes and any other taxes personally owned by the owner, structural repairs and
replacements (for example, exterior walls, roof, foundation), and repairs due to
faulty workmanship or inherent structural defects.
(v) On the Commencement Date, LANDLORD shall submit to TENANT a
statement of the estimated monthly Additional Rent for the calendar year in
which the Commencement Date occurs, and TENANT shall pay same on a monthly
basis in advance, together with payments of Base Rent. TENANT shall
continue to make said monthly payments of Additional Rent until notified by
LANDLORD of a change thereof. The estimated monthly Additional Rent billed
to TENANT may be changed from time to time by LANDLORD based upon the prior
year's actual statements or LANDLORD's anticipated costs. By April 1st of
each calendar year during the Term and by the April 1st immediately
following the expiration or earlier termination of the Term, LANDLORD shall
deliver to TENANT a statement showing the actual total of Taxes, Insurance
and Operating Expenses for the prior calendar year and TENANT's
Proportionate Share thereof. In the event the total of the monthly payments
of estimated Additional Rent which TENANT has made for the prior calendar
year shall be less than TENANT's actual Additional Rent due for said
calendar year, then TENANT shall pay the difference in a lump sum together
with the next installment of Base Rent, and TENANT shall concurrently pay
the difference between the aggregate of monthly payments made in the then
current calendar year and the amount of monthly payments which are then
calculated as monthly Additional Rent for the then current calendar year
based on the prior calendar year's actual amounts. Any overpayment by
TENANT shall be credited towards Additional Rent next coming due under this
Lease. Even though the Term has expired and TENANT has vacated the
Premises, when the final determination is made as to TENANT's Proportionate
Share of said Additional Rent for the year in which this Lease terminates,
TENANT shall, within ten (10) days following receipt of the annual
statement, pay any amount necessary based on such actual amounts for the
last calendar year, to the extent said amount is over $10,000.00 Tenant
shall have the right to pay said amount over a twelve (12) month period on
a monthly basis, and conversely, any overpayment made shall, together with
the rendering of the annual statement, be rebated by LANDLORD to TENANT.
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TENANT expressly agrees that LANDLORD, at LANDLORD's sole discretion,
may apply the Security Deposit (as hereinafter defined) in full of partial
satisfaction of any Additional Rent due for any part of the Term, including
the final months, which application may follow the termination of this
Lease. If said Security Deposit is greater than the amount of any such
Additional Rent and there are no other sums or amounts owed LANDLORD by
TENANT by reason of any other terms, provisions, covenants or conditions of
this Lease, then LANDLORD shall refund the balance of said Security Deposit
to TENANT as provided in Section 5 below. LANDLORD shall not be required to
first apply said Security Deposit to such Additional Rent if there are any
other sums or amounts owed LANDLORD by TENANT by reason of any other terms,
provision covenants or conditions of this Lease.
Additional Rent for the first calendar year and final calendar year
during the Term, if partial calendar years, shall be calculated as if
TENANT were occupying the Leased Premises for the entire calendar year, but
shall be due only in respect to those months included within the Term of
this Lease. Any Additional Rent for any partial month of occupancy at the
end of the Term of this Lease will be prorated, such proration to be based
on the actual number of days in said partial month.
TENANT shall have the right, within thirty (30) days after receipt by
TENANT of any annual statement, to inspect LANDLORD's books and records,
showing Operating Expenses, Insurance and Taxes for the calendar year
covered by said statement at LANDLORD's office, during normal business
hours, after five (5) days' prior written notice. Each annual statement
shall become final and conclusive between the parties, their successors and
assigns as to the matters set forth therein, unless LANDLORD receives
written objections with respect thereto within said thirty (30) day period.
Anything herein to the contrary notwithstanding, TENANT shall not delay or
withhold payments of any balance shown to be due pursuant to a statement
rendered by LANDLORD to TENANT because of any objection which TENANT may
raise with respect thereto.
Notwithstanding the fact that the Premises may only be used for the
purpose set forth in Section 8 (crossed out) hereof, if, due to TENANT's
use, LANDLORD's insurance premiums exceed standard premiums, then TENANT
shall, upon receipt of appropriate invoices from LANDLORD, reimburse
LANDLORD for such increase in
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premiums. It is understood and agreed between the parties hereto that any
such increase in premiums shall be considered as Rent due and shall be included
in any lien for Rent. TENANT shall comply with any and all requirements of
LANDLORD's insuror(s).
7. SALES TAX
TENANT also agrees to pay LANDLORD any sales or use tax or excise tax
imposed or levied against the Rent, Additional Rent, or any other charge or
payment required hereunder to be made by TENANT which has been imposed or levied
by any governmental body having jurisdiction thereover, payable with each
installment of rent. Such sales tax to be paid by TENANT shall be deemed to be
Additional Rent due and payable by TENANT hereunder.
8. (Omitted)
9. USE
TENANT shall use and occupy the Demised Premises only for general office
use and analytical and formulation laboratories and storage and for no other
purpose, under the name or style of Kos Pharmaceuticals, Inc. Such use shall be
in accordance with all applicable federal, state and local laws, ordinances,
rules and regulations.
10. SURRENDER AND HOLDOVER
TENANT agrees at the expiration of the term to surrender the Demised
Premises and everything belonging to or in connection therewith in good
condition, reasonable wear and tear excepted; and to remove all signs,
advertisements and rubbish from the said Demised Premises; and if TENANT fails
to do so, then TENANT hereby expressly authorizes LANDLORD, as agent of TENANT,
to remove such rubbish and make such repairs as may be necessary to restore the
Demised Premises to such condition, at the expense of TENANT.
IF TENANT retains possession of the Demised Premises or any part thereof
after the termination of this Lease, TENANT shall pay LANDLORD rent at double
the rate payable for the year immediately proceeding said holdover, computed on
a monthly basis, for the time TENANT thus remains in possession. The provisions
of this paragraph do not waive LANDLORD's rights of re-entry or any other right
hereunder. Any retention of the Demised Premises after termination of this Lease
or any extension thereof shall be considered as a month to month holdover unless
otherwise agreed to in writing by the parties hereto.
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11. ASSIGNMENT AND SUBLETTING
TENANT shall not assign, transfer, mortgage, pledge, or otherwise encumber
or dispose of this Lease or sublet the Premises or any part thereof, or permit
the Premises to be occupied by other persons unless prior consent in writing is
given by LANDLORD which consent shall not be unreasonably withheld. In the event
of an approved assignment or sublease the assignee or sublessee shall not be
permitted to further sublet or assign without first obtaining LANDLORD'S prior
written consent thereto as above provided. Any rental payments or other
compensation received by TENANT from an assignee or sublessee which are in
excess of rental payments or other charges due from TENANT to LANDLORD under the
Lease (or any portion thereof on a prorata basis in the event of a sublease) for
the Demised Premises so sublet or assigned shall be due and shall be paid to
LANDLORD.
In the event of an assignment of sublease, the TENANT shall remain liable
for the performance of all the obligations on the part of Tenant to be performed
under this Lease Agreement.
12. SUCCESSORS AND ASSIGNS
All rights, obligations and liabilities herein given to, or imposed upon,
the respective parties hereto shall extend to and bind the several and
respective heirs, executors, administrators, successors, permitted subtenants
and permitted assigns of said parties, subject to the provisions of Paragraph
10, and if there shall be more than one TENANT, they shall all be bound jointly
and severally by the terms, covenants, and agreements herein and the word
"TENANT" shall be deemed and taken to mean each and every person or party
mentioned as a TENANT herein, be the same one or more; and if there shall be
more than one TENANT, any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. No rights, however, shall inure to the
benefit of any assignee of TENANT or sublessee of the Premises unless the
assignment to such assignee or sublet of the Premises has been consented to by
LANDLORD in writing as aforesaid.
13. SUBORDINATION, ATTORNMENT, & ESTOPPEL
If the Premises are at any time subject to a ground lease, underlying lease
or mortgage, and if TENANT has received written notice of same from the landlord
thereunder or the holder thereof, as the case may be (each of said landlord's
and mortgage holders being referred to hereinafter as a "LANDLORD's Mortgagee"),
in any instance in which TENANT gives notice to
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LANDLORD alleging default by LANDLORD hereunder, TENANT will also simultaneously
give a copy of such notice to each LANDLORD's Mortgagee, and each LANDLORD's
Mortgagee shall have the right (but not the obligation) to cure or remedy such
default during the period that is permitted to LANDLORD hereunder, plus an
additional period of forty-five (45) days, and TENANT shall accept such curative
or remedial action (if any) taken by LANDLORD's Mortgagee with the same effect
as if such action had been taken by LANDLORD.
This Lease is and shall be prior to any encumbrance recorded after the date
of this Lease affecting the Building, other improvements, and land of which the
Demised Premises are a part. If, however, a lender requires that this Lease
shall be subordinate to any encumbrance, this Lease shall be subordinate to such
encumbrance, if Landlord first obtains from the lender a written agreement that
provides substantially the following: "As long as Tenant is not in default under
this Lease no foreclose of, deed given in lieu of foreclosure of, or sale under
the encumbrance, and no steps or procedures taken under the encumbrance, shall
affect Tenant's rights under this Lease and the Lease shall remain in full force
and effect for the full Term thereof."
As of the date hereof, the current mortgagee is Citicorp Real Estate, Inc.
Unless otherwise notified by mortgagee, any and all such notices described under
this Paragraph shall be sent to: Citicorp, Real Estate, Inc., 000 Xxxxxxxxx
Xxxxxx Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
TENANT shall deliver to LANDLORD or to its mortgagee, auditors or
prospective purchaser, or the owner of the fee, when requested by LANDLORD, a
certificate stating the main provisions of this Lease and to the effect that
this Lease is in full force and effect and the LANDLORD is not in default
therein, and stating specifically any exceptions thereto. Failure to give such a
certificate within fifteen (15) days after written request shall be conclusive
evidence that the Lease is in full force and effect and LANDLORD is not in
default and TENANT shall be estopped from asserting any defaults known to TENANT
at that time.
14. DEFAULT BY TENANT
A. Any one or more of the following events shall be deemed to be a
default by
TENANT:
(1) Failure to pay any installment of Rent, Additional Rent, or
pay any other change or amount to be paid by TENANT under
this Lease when due,
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(2) Failure to comply with any term, provision or covenant of
this Lease other than the covenants to pay rent,
(3) If TENANT or Surety becomes insolvent, makes a transfer in
Fraud of Creditors, makes an Assignment for the Benefit of
Creditors, or a Receiver be appointed to take possession of
the Demised Premises, the assets of the TENANT or the
Surety,
(4) If TENANT does any act which creates a lien on the Demised
Premises or the land on which the Demised Premises are
located.
B. Prior to LANDLORD's availing itself of any of the remedies
hereinafter set forth, LANDLORD shall give the following written
notices:
(1) In the case of a default under subparagraph A (1) five (5)
days notice to cure said default, which period shall include
the three (3) day statutory notice. The giving of Statutory
Notice shall not be deemed an election of remedies.
(2) In the case of a default under subparagraphs A (2), A (3),
or A (4), ten (10) days notice to cure said default which
period shall include the three (3) day statutory notice.
C. In addition to any other remedies provided by law, the following
remedies are available to LANDLORD at its option and may be
applied cumulatively or individually:
(1) Terminate this Lease by notice in writing in which event
this Lease shall end automatically by its own limitation and
TENANT shall immediately surrender the Demised Premises. In
this case, TENANT shall pay LANDLORD all sums due as of the
date of termination. TENANT hereby waives any rights of
redemption TENANT may have in the Demised Premises.
(2) Re-enter and take possession of the Demised Premises holding
the same for the account of TENANT, in which case, the
entire amount of base rent for the term of this Lease, plus
other charges enumerated in this Lease for the remainder of
the term, plus any costs of reletting including
rehabilitation and brokerage costs, less an amount equal to
the base monthly rent multiplied by the number of months
remaining on the term of this Lease for which the Demised
Premises are relet, if any, shall be immediately due and
payable.
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TENANT hereby waives any claim TENANT may have to rent
obtained in reletting in excess of that required to be paid
by TENANT. Acceptance of surrender shall be by written
notice only and the acceptance of keys or changing of the
locks shall not be deemed an acceptance of surrender of the
Demised Premises.
(3) Without prejudice to any present or future right of
possession, bring an action in law or in equity to collect
rent and other charges due, for general or special damages,
to restrain any violation of any term, provision or covenant
of this Lease and/or to foreclose or protect any security
interest or lien arising out of this Lease, a separate
agreement between the parties covering property within the
Demised Premises, operation of law, or by statute.
(4) In any litigation arising out of TENANT's default under the
terms of this Lease, the prevailing party shall be entitled
to its costs and payment of a reasonable attorney's fee.
Delinquent rent shall bear interest at eighteen (18%)
percent per annum, or at the highest rate permitted by the
usury laws of the State of Florida, whichever rate is less.
15. (Omitted)
16. SEVERABILITY AND WAIVER
No waiver by LANDLORD of any provision hereof shall be deemed to have been
made unless such waiver be in writing signed by LANDLORD. The failure of
LANDLORD to insist upon the strict performance of any of the covenants or
conditions of this Lease, or to exercise any option herein conferred, shall not
be construed as waiving or relinquishing for the future any such covenants,
conditions or options, but the same shall continue and remain in full force and
effect. No payment by TENANT of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the stipulated rent.
If any clause or provision of this Lease is illegal or unenforceable under
present and future laws, then and in the event, the remainder of this Lease
shall not be affected thereby.
17. EMINENT DOMAIN
If the Demised Premises are totally taken, or partly taken so as to render
the Demised Premises totally untenantable for the purposes herein leased, by any
legally constituted authority for any public use or purpose, then, in either
event, this Lease shall terminate as of the date of
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said taking. If a part of the Demised Premises is taken, but the Demised
Premises are not rendered totally untenantable, then this Lease shall remain in
full force and effect, except that the rent hereunder shall be reduced in
proportion to the amount of the Demised Premises so taken.
Nothing contained herein shall be construed to prevent TENANT from making a
separate claim for damages against the condemning or taking authority for
damages suffered by TENANT based upon the taking of TENANT's leasehold
improvements which were installed at TENANT's cost, personal property,
interruption of business, moving expenses or any other damages available under
applicable law. Nothing contained herein shall diminish LANDLORD's award from
the condemning authority.
18. DAMAGE AND DESTRUCTION
In the event the Premises shall be destroyed or so damaged or injured by
fire or other casualty during the Term whereby the same shall be rendered
untenantable, then LANDLORD shall have the right, but not the obligation, to
render such Premises tenantable by making repairs thereto within one hundred
eighty (180) days from receipt of insurance proceeds in the event of an insured
loss or from the date of the casualty in the event of an uninsured loss. If said
Premises are not rendered tenantable by LANDLORD within said one hundred twenty
(120) day period, it shall be optional with either party hereto to cancel this
Lease, and in the event of such cancellation, the Rent shall be paid only to the
date of such fire or casualty. The cancellation herein mentioned shall be
evidenced in writing. During any time that the Demised Premises are untenantable
due to causes set forth in the Section, a just and fair proportion of Base Rent
and Additional Rent shall be abated. Notwithstanding the foregoing, should the
cause of such damage, destruction or injury to the Premises originate from the
Premises or occur by reason of the misfeasance or negligence of TENANT or any
employee, agent, licensee, patron or invitee of TENANT ("TENANT Damage"), TENANT
shall not have the right to cancel this Lease, and no abatement of Base Rent
shall occur. In the event of said TENANT Damage, LANDLORD shall have the right,
but not the obligation, to render the Premises tenantable. If LANDLORD elects to
repair said TENANT Damage and render the Premises tenantable, all insurance
proceeds available pursuant to this Lease shall be paid to LANDLORD, and the
balance of the cost of such repairs shall be paid by TENANT within five (5) days
following demand therefor as Additional Rent. If LANDLORD elects not to repair
such TENANT Damage, TENANT shall make such repairs and shall be entitled to any
insurance proceeds received in respect to the cost thereof.
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19. INDEMNITY
TENANT agrees to hold LANDLORD harmless from and defend LANDLORD against
any and all claims or liability for any injury or damage to any person or
property whatsoever, occurring in the Demised Premises, the parking area and
grounds, or any public areas of the building of which the Demised Premises are a
part, when such injury or damage shall be caused in part or in whole by the
negligence of TENANT or TENANT'S, employees, agents, contractors or invitees.
LANDLORD agrees to hold TENANT harmless from and defend TENANT against any
and all claims or liability for any injury or damage to any person or property
whatsoever, occurring in the Demised Premises, the parking areas and grounds, or
any public areas of the building of which the Demised Premises are a part, when
such injury or damage shall be caused in part or in whole by the negligence of
LANDLORD, or LANDLORD'S employees, agents, contractors or invitees.
20. WAIVER OF CLAIMS AND SUBROGATION
Unless caused by their gross negligence, LANDLORD and LANDLORD's employees,
agents or invitees shall not be liable for, and TENANT hereby releases all
claims for, damage to person or property sustained by TENANT, or any person
claiming through TENANT or any person claiming directly, resulting from fire,
accident, or any cause whatsoever in or upon the Demised Premises or the
building of which the Demised Premises are a part. TENANT hereby agrees to give
LANDLORD prompt written notice of any accident, fire or damage occurring on or
to the Demised Premises.
LANDLORD and TENANT agree that in the event the Demised Premises or its
contents are damaged or destroyed by fire or other insured casualty, the rights,
if any, of either party against the other with respect to such damage or
destruction are waived; and that all policies of fire and/or extended coverage
or other insurance covering the Demised premises or its contents shall contain a
clause or endorsement providing in substance that the insurance shall not be
prejudiced if the assureds have waived right of recovery from any person or
persons prior to the date of loss or damage, if any.
21. ADDITIONAL CONSTRUCTION
LANDLORD hereby reserve the right at any time and from time to time to make
alterations or additions to, and to build additional stories on, the building of
which the Demised
14
Premises are a part, and to build adjoining the same. LANDLORD also reserves the
right to construct other buildings or to add to other buildings or to change the
configuration and location of landscaping, parking or other improvements and to
permit others to do so.
22. LANDLORD'S ENTRY FOR REPAIR AND TO RE-LET
TENANT will permit LANDLORD to erect, use and maintain pipes and conduits
in and through the Demised Premises. Upon giving reasonable notice to TENANT
except in case of emergency. LANDLORD or its agents shall at all reasonable
times have the right to enter upon the Demised Premises to examine the same and
to show them to prospective purchasers or tenants of the Building, and to make
such decorations, repairs, alterations, improvements or additions as LANDLORD
may deem necessary or desirable, and shall be allowed to take all material into
and upon said Demised Premises that my be required therefor, without the same
constituting an eviction of TENANT in whole or in part and the Rent reserved
shall in no wise xxxxx while said decorations, repairs, alterations,
improvements or additions are being made, by reason of loss or interruption of
the business of TENANT because of the prosecution of any such work. During the
six (6) months prior to the expiration of the term of this Lease, LANDLORD may
exhibit the Demised Premises to prospective tenants, and place upon same the
usual notices "To Let" or "For Sale", which notices TENANT shall permit to
remain thereon without molestation. LANDLORD shall have the right to change the
arrangement and/or location of the parking areas and ground and any public areas
of the building of which the Demised Premises are a part, and after reasonable
notice, to change the name, number of designation by which the building is
commonly known. Nothing herein contained, however, shall be deemed or construed
to impose upon LANDLORD any obligation, responsibility or liability whatsoever,
for the care, supervision or repair of the building or any part thereof, other
than as herein provided.
23. ALTERATIONS BY TENANT
TENANT shall make no alterations, decorations, additions or improvements in
or to the Demised Premises without LANDLORD's prior written consent, which
consent shall not be withheld unreasonably, and then only by contractors or
mechanics approved by LANDLORD. All alternation, additions or improvements upon
the Demised Premises made by either party shall, unless LANDLORD elects
otherwise, become its property, and shall remain upon and be surrendered with
said Demised premises as a part thereof, at the end of the term hereof, unless
LANDLORD, at its option, shall require its removal from the Demised Premises and
the restoration by TENANT of the said Demised Premises to its former condition.
15
24. REPAIRS BY TENANT
TENANT shall take good card of the Demised Premises and shall, at TENANT's
own cost and expense, make all repairs in the Demised Premises and, at the
termination of this Lease, shall surrender the Demised Premises in good
condition, reasonable wear and tear excepted. If TENANT fails to make such
repairs, LANDLORD may, at LANDLORD's option and at TENANT's expense, repair all
damage or injury to the Demised Premises caused by TENANT, or TENANT's
employees, agents, or invitees.
25. MECHANIC'S LIENS
TENANT is prohibited from subjecting the Demised Premises or the building
of which they are a part or the land upon which they are located, or any part
thereof or any interest of LANDLORD therein to any mechanic's lien.
If any mechanic's lien shall at any time be filed against the Demised
Premises or the building of which they are a part or the land upon which they
are located or any part thereof or any interest of LANDLORD therein, or any
encumbrance, charge, mortgage, conditional xxxx of sale, title retention, or
security agreement be filed against the Demised Premises or the building of
which they are a part of the land upon which they are located or any part
thereof or any interest of LANDLORD therein, by reason of any work, labor or
services, or materials or equipment furnished to or for TENANT, TENANT, within
ten (10) days after notice of the filing thereof, or such shorter period not
less than five (5) days as may be required by the holder of any mortgage to
which this Lease is subject and subordinate, will cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction, or otherwise. If TENANT shall fail to cause such encumbrance,
charge, etc., to be discharged within the period aforesaid then, in addition to
any other right or remedy, LANDLORD may, but shall not be obligated to,
discharge the same whether by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or by bonding proceedings, and
in any such event, LANDLORD shall be entitled, if LANDLORD so elects, to compel
the prosecution of an action for the foreclosure of such lien by the lienor and
to pay the amount of the judgment in favor of the lienor with interest, costs,
and allowances. Any amounts so paid by LANDLORD and all costs and expenses
incurred by LANDLORD in connection therewith, together with interest thereon at
the highest legal rate from the respective dates of LANDLORD's making of the
payment or incurring of the cost and expense, shall constitute Additional Rent
payable by
16
TENANT under this Lease and shall be paid to LANDLORD by TENANT on demand.
Nothing herein contained shall obligate TENANT to pay or discharge any lien
created LANDLORD.
Nothing in this Lease contained shall be deemed or construed in any way as
constituting the consent or request of LANDLORD, express or implied by inference
or otherwise, to any contractor, subcontractor, laborer, or materialman for the
performance of any labor or the furnishing of any labor or the furnishing of any
materials for any specific improvements, alteration to or repair of the Demised
Premises or any part thereof, nor as giving TENANT any right, power, or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any lien
against the Demised Premises or the building of which they are a part or the
land upon which they are located, or any part thereof or any interest of
LANDLORD therein.
26. REPAIRS BY LANDLORD
LANDLORD shall have no duty to TENANT to make any repairs or improvements
to the Demised Premises except structural repairs necessary for safety and
tenantability, and then only if not brought about by any act or negligence, of
TENANT, or TENANT's employees, agents, or invitees. LANDLORD shall not be liable
to TENANT for any damage caused to TENANT or TENANT's property due to the
building or any part of appurtenances thereof being improperly constructed or
being or becoming out of repair so long as same are not caused by negligence of
Landlord, its agents, contractors or employees. TENANT agrees to report
immediately in writing to LANDLORD any defective condition in or about the
Demised Premises known to TENANT, and failure to so report shall make TENANT
liable to LANDLORD for any expense or damage to LANDLORD resulting from such
defective condition. Unless caused by Landlord's gross negligence, LANDLORD
shall not be liable for any damage to any property in said Demised Premises
which result from LANDLORD's failure to make said structural repairs. Structural
repairs are herein defined as being limited to foundation, supporting structure,
roof and floor slab.
27. TENANT PARKING
(A) NON-EXCLUSIVE RIGHT TO PARK AUTOMOBILES: Indicated by the shading on
Exhibit "A" are the "Parking Areas" of the Building which will be
available to LANDLORD, TENANT, other tenants of the Building, and their
respective employees, customers, guests and invitees for the parking of
vehicles. TENANT shall have the right to
17
park, in the Parking Areas only, no more the twenty (20) vehicles in
addition to the vehicles permitted under the Lease Agreement for Two
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000.
(B) LANDLORD'S REGULATION OF PARKING AT THE BUSINESS CENTER: The parking of
vehicles anywhere, except in strict accordance with Subsection 25(A)
above, and the parking of inoperable vehicles are strictly prohibited
and shall be deemed defaults of TENANT without the necessity of
LANDLORD's giving of notice to TENANT of such default. In addition to
all other rights and remedies reserved in this Lease and available at
law or in equity, LANDLORD shall have the right, in the event of such
default, to tow improperly parked vehicles without notice to TENANT or
the owner of said vehicle, and TENANT shall reimburse LANDLORD for the
cost thereof upon presentation of an invoice therefor. Tenant shall
indemnify and hold LANDLORD harmless against any loss, damage, claim or
action suffered by LANDLORD in connection with the towing of any
vehicle parked by any employee, agent, customer, invitee, licensee or
guest of TENANT. LANDLORD shall have the right to institute and
maintain whatever procedures LANDLORD deems necessary or desirable to
regulate the parking of vehicles. Such procedures may include, but are
not to be limited to, requiring TENANT and its employees, customers,
guests, and invitees to display parking decals on parked vehicles, or
requiring that TENANT supply LANDLORD with the license plate numbers of
parked vehicles, and the levying of fines against TENANT for improperly
parked vehicles. TENANT shall enforce LANDLORD's parking procedures
with respect to TENANT's employees, guests, customers and licensees.
28. COMPLIANCE WITH LAW BY TENANT
TENANT agrees not to do or permit anything to be done in or about the
Demised Premises, which might in any way conflict with any law, ordinance, rule
or regulation affecting the use and occupancy of the Demised Premises, which are
now in effect or may hereafter be enacted by any governmental agency or any
public authority, or in any way obstruct or interfere with the rights of other
tenants of the building, or injure or annoy them, nor use or allow the use of
the Demised Premises for any improper, immoral or objectionable purpose.
18
29. TIME OF THE ESSENCE
It is understood and agreed between the parties hereto that time is of the
essence of this Lease.
30. NOTICES
All notices required under this Lease shall be in writing. Any notice by
LANDLORD to TENANT shall be deemed to be duly given if either delivered
personally to TENANT at the Demised Premises or when mailed by certified mail,
addressed to TENANT at the Demised Premises. Any notice by TENANT to LANDLORD
shall be deemed duly given if sent by certified mail to LANDLORD at 000 Xxxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000 (or at such other address as may
hereafter be designated by LANDLORD).
31. SCOPE AND INTERPRETATION OF THE AGREEMENT
This Lease shall be considered to be the only agreement between the parties
hereto pertaining to the Demised Premises. All negotiations and oral agreements
acceptable to both parties are included herein. The laws of the State of Florida
shall govern the validity, interpretation, performance and enforcement of this
Lease.
32. CAPTIONS
Any heading preceding the text of the several paragraphs and subparagraphs
hereof are inserted solely for convenience of reference and shall not constitute
a part of this Lease, nor shall they affect its meaning or construction.
33. RECORDING
TENANT shall not record this Lease or a short form or memorandum thereof
without LANDLORD's prior written consent and joinder in such instrument,
provided, however, that TENANT shall, at LANDLORD's request, enter into the
Short Form Lease Agreement attached hereto as SUPPLEMENT I to this lease, which
Short Form Lease Agreement LANDLORD, but not TENANT, shall have the right to
record in the Public Records of the County in which the Demised Premises are
located.
34. INCREASED BASE RENT
Annually, the Base Rent shall be increased by five (5%) percent of the
preceding year's Base Rental.
19
35. INSURANCE
(A) COVERAGE: TENANT shall maintain, at its expense, throughout the Term,
for the benefit of LANDLORD and LANDLORD's Mortgagees, the following
insurance coverages:
(i) general liability insurance for bodily injury and property damage
to protect both LANDLORD and TENANT against damage, costs and
attorney's fees arising out of accidents of any kind occurring on
or about the Premises or the Building of not less than Three
Million and No/100 ($3,000,000.00);
(ii) fire and extended casualty insurance with sufficient coverage to
reimburse the loss of all the TENANT'S improvements to the
Premises, and all the TENANT'S fixtures, equipment, personal
property and inventory;
(iii) plate glass insurance to protect both LANDLORD and TENANT
covering the replacement value of all plate glass in or about the
Premises; and
(iv) appropriate worker's compensation and any and all other insurance
required by law.
(B) ADDITIONAL INSUREDS: All insurance, except the Worker's Compensation
coverage which shall include a waiver of subrogation against the
LANDLORD and LANDLORD'S Mortgagees, required by Subsection 33(A) above,
shall name LANDLORD and LANDLORD'S Mortgagees as additional insureds
and shall be written by a company or companies qualified to do business
in Florida and reasonably acceptable to LANDLORD. A certificate showing
such insurance in force and naming LANDLORD and LANDLORD'S Mortgagees
as additional insureds or waiver of subrogation for Worker's
Compensation shall be delivered to LANDLORD prior to the Commencement
Date, and such insurance and updated certificates or renewal policies
shall be delivered to LANDLORD no fewer than thirty (30) days prior to
the expiration of the then existing policies. No policy shall be
canceled or subject to reduction in coverage or other change without at
least 30 days' advance written notice to LANDLORD. No acceptance or
approval of any insurance by LANDLORD shall relieve or release TENANT
from any liability, duty or obligation under this Lease. Whenever any
part of the Premises shall have been damaged or destroyed by fire or
other casualty or any other incident or accident has accrued which
gives rise to a potential claim under an insurance policy to
20
be maintained by TENANT under this Section 33, TENANT shall promptly
make proof of loss in accordance with the terms of the applicable
insurance policies and shall promptly prosecute all valid claims which
may have arisen against the insurers based upon any such casualty,
incident or accident. TENANT SHALL give LANDLORD written notice of any
potential claim within five (5) days following the date TENANT acquires
actual notice thereof.
(C) WAIVER OF SUBROGATION: LANDLORD and TENANT each waive any right of
recovery against the other for any loss to the extent that such claim
is covered by valid and collectible insurance carried for the benefit
of the party entitled to make such claim and provided the insurer pays
such claim. The foregoing waiver shall not apply if the policy of
insurance covering such loss would be invalidated by the operation of
said waiver.
(D) TENANT shall not do or permit anything to be done or bring into or keep
on or permit anything to be brought into or kept on the Demised
Premises which shall increase the rate of insurance on the building of
which the Demised Premises are a part. If, by reason of the failure of
TENANT to comply with the terms of this Lease, or by reason of TENANT'S
occupancy (even though permitted or contemplated by this Lease), the
insurance rate shall at any time be higher than it would be otherwise,
TENANT shall reimburse LANDLORD for all increases in insurance premiums
charged because of such violation or occupancy by TENANT.
36. PUBLIC UTILITIES
TENANT shall pay for all utilities, used or consumed in or upon the Demised
Premises, and all sewer charges, as and when the charges therefor shall become
due and payable, and TENANT shall pay any garbage or trash collection fee
imposed by any governmental authority.
37. SIGNS
TENANT will not exhibit, inscribe, paint, or affix any sign, advertisement,
notice or other lettering on any part of the outside of the Demised Premises or
of the Building of which the Demised Premises are a part, or inside the Demised
Premises if visible from the outside, without first obtaining LANDLORD's written
approval thereof; and TENANT further agrees to maintain such sign, lettering,
etc., as may be approved in good condition and repair at all times. TENANT will
not attach any awning, antenna or other projection to the roof or the outside
wall of the Demised Premises or the building of which the Demised Premises are a
part.
21
TENANT shall not install any drapes, curtains, blinds or any other window
covering, or overlay of any type, texture, fiber, material or the like on any
window, door or other aperture located at or within the Demised Premises,
without the express written consent of LANDLORD.
38. CONSTRUCTION
Subject to delays caused by Tenant, Landlord will within ninety (90) days
after Landlord's receipt and Landlord's and Tenant's approval of the Plans and
Specifications described in Section 4 hereof, cause the construction of TENANT'S
improvements to commence and be built in substantial compliance with the Plans
and Specifications, incorporating in such construction all items of work
described in EXHIBIT B, B-1, and B-2 and C. Landlord shall grant Tenant one (1)
day's base rental credit for each day after the expiration of the above ninety
(90) day period (or as same may be adjusted due to Tenant-caused delays) until
the Landlord's Work in the Demised Premises is substantially complete as
provided in this Lease.
LANDLORD agrees that it will provide, install or construct, at no expense
to TENANT, those standard building items described in Exhibit C attached hereto
and made a part hereof. Any and all expense for building items which are in
addition to or are in substitution for the standard building items specifically
enumerated in Exhibit C, which LANDLORD is to provide, install or construct in
the Demised Premises on TENANT'S behalf, shall be paid for by TENANT within
thirty (30) days after receipt of an invoice(s) therefor from LANDLORD. Payment
from TENANT of such costs shall not operate, expressly or impliedly, to create
in TENANT any interest in the Demised Premises beyond the leasehold interest
granted hereby.
Should the work performed by LANDLORD for TENANT at TENANT'S sole cost and
expense including any change orders exceed the lesser of the equivalent of
one-month Base Rent or the sum of $3,000.00, then TENANT shall pay to LANDLORD
said cost within fifteen (15) days of receipt of invoice for same but in any
event prior to TENANT taking possession of the Demised Premises. In no event,
however, shall the Commencement Date of the Lease be adjusted by reason of
non-payment of said cost.
39. 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
22
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
40. INTEREST ON PAST DUE AMOUNTS
All Rent payable hereunder shall bear interest at the highest rate
permitted by law from the due date until the date actually paid.
41. EXCULPATION
Neither LANDLORD nor any general or limited partner of LANDLORD (nor any
direct or indirect partner, incorporator, shareholder, trustee, officer or
director, disclosed or undisclosed, past present or future of a partner of
LANDLORD) shall be personally liable for any liability or obligation of LANDLORD
to TENANT in connection with this Lease. TENANT will look solely to the interest
of LANDLORD in the Premises to satisfy any claims TENANT may have against
LANDLORD with respect to such liabilities and obligations.
42. HAZARDOUS AND TOXIC SUBSTANCES
In addition to, and not by way of limitation of the provisions of Section
26 above, TENANT hereby covenants with LANDLORD and represents and warrants to
LANDLORD as follows:
(A) TENANT, at its sole cost and expense, will strictly comply with any and
all applicable federal, state and local environmental laws, rules, regulations,
permits and orders affecting Demised Premises and/or the business operation of
TENANT conducted on the Demised Premises and/or the business operation of TENANT
conducted on the Demised Premises, relating to the generation, recycling, reuse,
sale, storage, handling, transport, or presence of any "Hazardous Materials" (as
hereinafter defined) on the Demised Premises whether now in effect or as may be
promulgated or amended from time to time (collectively, the "Environmental
Laws"). Tenant will not permit or allow the generation, manufacture, recycling,
reuse, sale, storage, handling, transport, or presence of any Hazardous
Materials on the Premises without LANDLORD'S express prior written consent,
which consent LANDLORD may exercise in its sole discretion. As used in this
Section, the term "Hazardous Material(s)" shall mean any substances defined as
or included in the definition of "hazardous substances," hazardous wastes,"
"hazardous materials," "toxic substances," "contaminants" or other pollution
under any applicable Environmental Laws. Notwithstanding anything to the
contrary contained herein, LANDLORD'S consent to any action by TENANT shall not
operate to relieve TENANT of the
23
obligation to comply with all the provisions of this Section 40. TENANT will not
permit or allow, and will take all actions necessary to avoid, the occurrence of
any spills of Hazardous Materials on or off the Demised Premises as a result of
any construction on, or use of, the Demised Premises. TENANT shall promptly
advise LANDLORD in writing immediately upon becoming aware of (i) the existence
of any spills, releases or discharges of Hazardous Materials that occur on or
onto the Demised Premises, or off the Demised Premises, and of any existing or
threatened violation of this Section 40; (ii) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or
threatened by any governmental authority with respect to the Demised Premises
from time to time under any applicable Environmental Laws; (iii) any and all
claims made or threatened by any non-governmental party against TENANT or the
Demised Premises relating to damage, contribution, cost recovery, compensation,
loss or injury resulting from any Hazardous Materials or any violation of
applicable Environmental Laws; and (iv) TENANT'S discovery of any occurrence of
condition on any real property adjoining or in the immediate vicinity of the
Demised Premises that could cause the Demised Premises or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of the Demised Premises under any Environmental Laws.
(B) Without LANDLORD's prior written consent, TENANT shall not enter into
any settlement, consent or compromise with respect to any "Environmental
Claim(s)" (as hereinafter defined); provided, however, that LANDLORD'S prior
consent shall not be necessary for TENANT to take any remedial action if ordered
by a court of competent jurisdiction or if the presence of Hazardous Materials
at the Demised Premises poses an immediate, significant threat to the health,
safety or welfare of any individual or otherwise requires an immediate remedial
response. As used in this Section, "Environmental Claim(s)," shall mean any
claim(s) or cause(s) of action resulting from the failure of TENANT or the
Demised Premises to comply with any Environmental Law relating to Hazardous
Materials, industrial hygiene or environmental conditions. In any event, TENANT
shall promptly notify LANDLORD of any action so taken.
(C) At all times during the Term of this Lease and any renewals or
extensions hereof, TENANT, at its sole cost and expense, shall comply with any
and all applicable laws, regulations, ordinances, permits and orders regulating
the type and quantity of waste that may be discharged into the sanitary sewer
system serving the Demised Premises, including, but not
24
limited to, all rules, regulations, permits, and orders of any governmental
agency or authority having jurisdiction, or its successor. TENANT agrees to
limit its discharges of waste into the sanitary sewer system to "Domestic Waste
Water", as such terms defined by Rule 17-6.030 (22) of the Florida
Administrative Code, as amended from time to time, or as the term may be defined
by other laws, regulations, ordinances, permits or orders presently in effect or
hereafter enacted, as such laws, regulations, ordinances, permits or orders may
be amended from time to time. In no event, however, shall Domestic Waste Water
be construed to mean or include any "Non-Domestic Waste Water" that has
undergone "Pre-treatment" as the latter term is defined in Rule 17-6.030 (63) of
the Florida Administrative Code or as defined by other laws, regulations,
ordinances, orders or permits presently in effect or hereafter enacted, as such
laws, regulations, ordinances, orders or permits may be amended from time to
time.
(D) TENANT agrees that LANDLORD and LANDLORD'S agents and independent
contractors may enter and inspect the Demised Premises at any reasonable time,
and from time to time, to verify that TENANT's operations on the Demised
Premises do not violate any of the provisions of this Section 40 and that they
comply with any and all applicable Environmental Laws. At LANDLORD'S option,
LANDLORD may obtain, from time to time, reports from licensed professional
engineers or other environmental scientists with experience in environmental
investigations and may require TENANT to permit such licensed professional
engineers or other environmental scientists to conduct complete and thorough
on-site inspections of the Demised Premises, including, without limitation,
sampling and analysis of the soil surface water, groundwater and air, to
determine whether TENANT is in compliance with the provisions of the Section and
all Environmental Laws. TENANT and its agents shall cooperate with LANDLORD and
its agents in connection with the conduct of such investigations. In the event,
an inspection from a licensed environmental engineer or other environmental
scientist indicates that TENANT is in default under this Section 40, TENANT
shall, immediately upon demand, reimburse LANDLORD for all costs and expenses of
such investigations; moreover, LANDLORD may, at its option, undertake such steps
as it deems necessary to cure such default and to bring the Demised Premises
into compliance with the terms of this Section, and TENANT shall, immediately
upon demand, reimburse LANDLORD for all costs and expenses incurred in curing
such default and bringing the Demised Premises into compliance with the terms of
this Section.
25
(E) TENANT hereby indemnifies and holds LANDLORD harmless from and against
any and all claims, demand, damages, losses, liens, liabilities, penalties,
fines, lawsuits and other proceedings, costs, and expenses (including, without
limitation, reasonable attorneys' fees and costs at trial and all appellate
levels), arising directly or indirectly from, or in any way connected with: (i)
the presence, or use, generation, treatment or storage on, under or about the
Demised Premises of any Hazardous Materials on the Demised Premises, or the
disposal or release of Hazardous Materials on the Demised Premises, whether or
not expressly approved by LANDLORD in writing, (ii) the presence of any
Hazardous Materials off the Demised Premises, whether or not expressly approved
by LANDLORD in writing, (iii) the presence of any Hazardous Materials off the
Demised Premises as the result of any use of the Demised Premises, (iv) any
violation or alleged violation of any Environmental Law, including, but not
limited to, violations of the Federal Comprehensive Environmental Response
Compensation and Liability Act of 1980 and regulations promulgated thereunder,
as the same may be amended from time to time, (v) the costs of any necessary
inspection, audit, cleanup or detoxification of the Demised Premises under any
Environmental Laws, and the preparation and implementation of any closure,
remedial or other required plans, consent orders, license applications or the
like, or (vi) any default by TENANT under this Section 40. All sums paid and
costs incurred by LANDLORD with respect to any Environmental Claim or any other
matter indemnified against hereunder shall be due and payable by TENANT
immediately upon demand. If, after demand, TENANT fails to pay any sums due
pursuant to this indemnification, such sums shall bear interest at the highest
rate then permitted by applicable law, from the date so paid or incurred by
LANDLORD until LANDLORD is reimbursed by TENANT. The indemnification contained
herein shall survive the termination of the leasehold estate created hereby and
any assignment by LANDLORD of its rights under this Lease.
(F) The foregoing Subsections 40(A) through 40(E) and this Subsection 40(F)
shall apply with equal force and effect to TENANT's use and occupancy of the
Building. Any provision of this Lease to the contrary notwithstanding, any
breach of the covenants, representations or warranties contained in this Section
40 shall constitute a default under this Lease and shall entitle LANDLORD, in
addition to LANDLORD'S other rights and remedies available at law, in equity or
under this Lease, to immediately terminate this Lease.
In additional to the foregoing, Tenant is hereby given notice that
Section 403.727, Florida Statues provides for penalties for improper disposal of
Hazardous Materials.
26
43. RELOCATION OF TENANT
LANDLORD expressly reserves the right at LANDLORD'S sole cost and expense
to remove TENANT from the Demised Premises and to relocate TENANT in some other
space of LANDLORD'S choosing of approximately the same dimensions and size
within the Oakwood Business Center, which other space shall be improved and
decorated by LANDLORD, at LANDLORD'S expense, to the same degree as the Demised
Premises are improved immediately prior to the relocation. LANDLORD shall have
the right, in LANDLORD'S sole discretion, to use such decorations and materials
from the existing Demised Premises, or other materials so that the space in
which TENANT is relocated shall be comparable in its interior design and
decoration to the Demised Premises from which TENANT is removed. Nothing herein
contained shall be construed to relieve TENANT or imply that TENANT is relieved
of the liability for, or obligation to pay, any Additional Rent due by reason of
the provisions of Section 6 of this Lease, the provisions of which Section shall
be applied to the space in which TENANT is relocated on the same basis as said
provisions of which Section shall be applied to the space in which TENANT is
relocated on the same basis as said provisions were applied to the Demised
Premises from which TENANT is removed. TENANT agrees that LANDLORD'S exercise of
its election to remove and relocate TENANT shall not terminate this Lease or
release TENANT, in whole or in part, from TENANT'S obligations to pay Rent and
perform the covenants and agreements hereunder for the full Term. In the case
Landlord exercised its rights under this paragraph, Tenant may at its option
cancel this Lease upon thirty (30) days written notice to Landlord, instead of
relocating as provided herein.
44. OWNER'S/TENANTS' ASSOCIATION
TENANT agrees that in the event an owner's and/or tenants' association (the
"Association") is formed for the Oakwood Business Center, then TENANT shall
become a member and shall maintain a membership therein, and TENANT agrees that
it shall be responsible for its share of the expenses thereof based on the
amount per square foot of rentable area in the Demised Premises, as same may be
determined from time to time by a majority vote of the members of the
Association, and TENANT agrees that it shall comply with such determination. In
the event the Association is formed, TENANT agrees that it shall abide by its
charter, by-laws and rules and regulations, same being subject to reasonable
approval by Tenant.
Additionally, TENANT hereby agrees to fully comply with the Rules and
Regulations of the Building attached hereto and incorporated herein by this
reference as Exhibit "E".
27
45. EMPLOYMENT OPTION CREDIT: TENANT may, at its option, receive a credit
against their Base Rent if, for any calendar year by January 30 of the
applicable calendar year, TENANT shall have employed one or more full-time (30
hours or more per week) residents of the subdivision of Liberia for said
calendar year. The credit received shall be equal to a reduction in the Base
rent of $.50 per square foot of the Demised Premises per full-time Liberia
employee, in no event, however, shall the total credit exceed $3,000 per
calendar year ("Employment Option Credit"). TENANT shall be eligible for the
Employment Option Credit only at the end of the applicable calendar year and
shall not be entitled to any Base Rent reductions during the applicable calendar
year. TENANT shall also not be entitled to any of the Employment Option Credit
for employment of less than a full calendar year (except for employment in
January thereof). TENANT must provide to LANDLORD proof of full-time employment
(for example, in the form of a W-2 form for each said employee) for each Liberia
resident for the entire calendar year (except for the period up to January 30)
as well as proof of residency for each Liberia employee. Upon satisfactory proof
of same to LANDLORD, LANDLORD shall allow TENANT the Employment Option Credit
which shall be applied Against the next calendar year's Base Rent, on a monthly
pro rata basis, with the applicable Employment Option Credit amount divided into
twelve equal reduction amounts and applied against each monthly installment of
the subsequent calendar year's Base Rent.
Tenant may elect eligibility for the Employment Option Credit for
subsequent calendar years or may elect not to pursue eligibility, at TENANT'S
sole option. TENANT'S failure to pursue eligibility for any given calendar year
shall not prejudice TENANT from pursuing eligibility in any subsequent calendar
year. The Employment Option Credit shall run through the term of this Lease and
any extensions, option, renewals, and modification thereto.
46. ADDITIONAL PROVISIONS
Insofar as the following additional provisions, if any, conflict with any
of the foregoing provisions, the following additional provisions, if any, shall
prevail:
A. DELETIONS: To the extent that any provision in this Lease has been
deleted by strike out or otherwise crossing out such preprinted
provision, such deleted provision shall be construed to have never
been included in the Lease or to have been a part thereof ab
initio.
B. HEATING, VENTILATION AND AIR CONDITIONING MAINTENANCE: Tenant
shall be responsible for the preventative and routine maintenance
of the heating, ventilation and air conditioning systems and the
cost thereof. Tenant agrees to enter into a Preventative
Maintenance Agreement with a reputable service firm to provide
said maintenance during the term of the Lease.
28
IN WITTNESS WHEREOF, the parties hereto have duly executed this
Lease the day and year hereinafter set forth.
Executed this 7th day of January 1993.
Signed, sealed and delivered in the LANDLORD
in the presence of:
STS BUILDING ASSOCIATES, L.P.,
a Delaware limited partnership
By: Hollywood STS Associates, L.P.,
Its: General Partner
By: Hollywood, Inc. (Del.)
Its: General Partner
By: /s/ XXXXX XXXXXXX
-------------------- ----------------------------------
Xxxxx XxXxxxx, Sr. Vice President
By: /s/ XXXXXXXX X. XXXXXXX
-------------------- ----------------------------------
As to Landlord Xxxxxxxx X. Xxxxxxx, Secretary
Executed this 5th day of January 1993.
Signed, sealed and delivered in the TENANT
in the presence of:
KOS PHARMACEUTICALS, INC.,
a Florida corporation
/s/ XXXXX XXXXXXX By: /s/ XXXXXX X. XXXX
----------------------- ---------------------------------
Its President
/s/ XXXXXX XXXXXXX Attest:
----------------------- --------------------------------
As to Tenant
(Corporate Seal)
1
SUPPLEMENT I to LEASE Dated ___________________________________- Between
________________________________________________________________________
__________________________________________________________, (LANDLORD)
and ____________________________________________________________________
_________________________________________________________, (TENANT).
PURSUANT to the provisons of the above-referenced Lease, LANDLORD and
TENANT, intending to be legally bound hereby, agree that the tem of the said
Lease commenced on the ____ day of _______________, 199__, shall end on the ____
day of __________________, 199__, at Midnight, unless sooner terminated or
extended as therein provided.
IN WITTNESS WHEREOF, the parties hereto have duly executed this
SUPPLEMENT I the day and year hereinafter set forth.
Executed this ____ day of ______ 199__.
Signed, sealed and delivered in the LANDLORD
in the presence of:
STS BUILDING ASSOCIATES, L.P.,
a Delaware limited partnership
By: Hollywood STS Associates, L.P.,
Its: General Partner
By: Hollywood, Inc. (Del.)
Its: General Partner
By:
------------------------------------
Its
By:
------------------------------------
As to Landlord Its
Executed this ___ day of _______ 199__.
Signed, sealed and delivered in the TENANT (If Corporation)
in the presence of:
By:
------------------------------------
Its President
Attest: /s/_______________________
As to Tenant Its Secretary
(Corporate Seal)
Executed this ___ day of _______ 199__.
Signed, sealed and delivered in the TENANT
in the presence of: (If Individuals or an Unincorporated
Identity)
___________________________
___________________________
___________________________ By: ________________________
____________________________
As to TENANT
SUPPLEMENT 1
THIS IS A FORM ONLY - NOT TO BE EXECUTIED
-----------------------------------------
EXHIBIT A
DEMISED PREMISES (DRAWING)
EXHIBIT "B"
LEASEHOLD IMPROVEMENTS
Landlord shall build Tenant's interior improvements in the Demised
Premises in accordance with final plans and specifications to be prepared by
Landlord's architect and approved by Landlord and Tenant. Said final plans and
specifications shall be made a part of this Lease as Exhibit C. Said final plans
and specifications shall be prepared in accordance with the space plan attached
hereto as Exhibit B-1 and Exhibit B-2 "Construction Items. "Substantial
Completion" of said improvements shall be evidenced by Landlord's written
notification to Tenant that said improvements have been substantially completed.
By taking possession of the Premises following said notification, Tenant shall
be deemed to have acknowledged and agreed that Landlord's improvements to the
Premises were made in accordance with this Exhibit "B" and that improvements
required by this Exhibit "B" have been substantially completed. All other
improvements to be made to the Premises which are necessary for the conduct of
Tenant's business in the Premises shall be made by Tenant, at Tenant's sole cost
and expense, subject to Tenant's obligation to obtain prior written consent of
Landlord to said improvements, which consent shall not be unreasonably withheld.
EXHIBIT B-1
SPACE PLANS (DRAWING)
EXHIBIT B-2
CONSTRUCTION MATERIALS
FLOORING TREATMENT:
1) Existing carpet at office area will be vacuumed, but shall otherwise
remain in "As-Is" condition.
2) Warehouse/Storage Area floors will be broom swept.
3) Bathrooms will receive new vinyl tile flooring of Tenant's choice from
Landlord's samples.
WINDOW TREATMENT:
1) Exterior storefront windows with existing horizontal mini-blinds to b
cleaned but otherwise will remain "As-Is".
ELECTRICAL SERVICE:
1) 600 AMP disconnect with a separate meter to be installed at warehouse
area
2) Existing electrical outlets and switches to remain "As-Is". Existing
electrical conduit to be connected to existing 200 AMP subpanel at
warehouse area.
3) Emergency lights and exit lights to be installed as required by code.
AIR CONDITIONING:
1) Existing air conditioning units will be serviced and delivered in
operational condition but otherwise will be in "As-Is" condition.
Existing ducting and diffusors will remain "As-Is".
PLUMBING:
1) Two (2) bathrooms installed as required by code as shown on Exhibit
B-1.
CEILING TREATMENT:
1) Existing 2' x 4' acoustical tile ceiling to remain in "As-Is"
condition.
PAINTING:
1) There will be no painting in the Premises. All new construction will be
delivered taped and ready for paint. All existing walls to remain in
"As-Is" condition.
LIGHTING:
1) Existing lighting to remain in "As-Is" condition.
PARTITIONS:
1) A new demising wall to be constructed as indicated on Exhibit B-1.
SUITE ENTRY:
1) To be installed by LANDLORD as shown on Exhibit B-1.
EXHIBIT C
PLANS AND SPECIFICATIONS
(Intentionally Left Page)
EXHIBIT E
RULES OF THE BUSINESS CENTER
In addition to the terms, covenants, and conditions of the Lease,
Tenant shall comply, and Tenant shall cause the Premises to comply with the
following:
A. PARKING: Parking of automobiles, trucks and other vehicles shall be
restricted to areas designated for such purpose by Landlord.
Landlord reserves the right to remove by towing any vehicle which is
obstructing any door or driveway, obstructing other parked vehicles, parked in a
restricted area, or is otherwise improperly parked. All towing expenses shall be
paid by Tenant or the vehicle owner.
Each vehicle owner shall be responsible for any damage to Landlord's or
any third party's property caused by the operation or parking of such vehicle.
Parking both during and after normal business hours shall conform and
comply with all laws, ordinances and regulations of any agency or any regulatory
authority.
Repairs to, and maintenance of, vehicles on any part of the Business
Center visible outside Tenant's Premises (including washing and waxing) is
prohibited.
B. OUTDOOR STORAGE: Tenant shall not store any materials, supplies,
equipment or other property outside the Premises or in trailers, whether
attached to or detached from a driving unit, nor shall any such tractor/trailer
be parked within the Business Center for more than twenty-four (24) continuous
hours.
C. HAZARDOUS WASTE: Tenant shall not generate, store, handle or use any
hazardous effluent, material or substances in excess of lawful standards, or
prohibited by code, anywhere in the Business Center.
D. Tenant, it's officers, agents, servants, guests, invitees, licensees
and employees shall not block or obstruct any of the entries, passages, doors or
hallways in the Business Center nor place, empty or throw any rubbish, litter,
trash or material of any nature into such areas, or permit such areas to be used
at any time except for the ingress or egress of Tenant, its agents, employees,
visitors or invitees.
E. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from the Premises or any other part of the
Business Center, regardless of how or when such loss occurs.
F. Tenant, its officers, agents, servants or employees shall not use any
part of the Premises or the Business Center for housing, lodging or sleeping
purposes without the prior written consent of Landlord.
G. Tenant shall not permit the operation of any musical or sound-producing
instruments or devices which may be heard outside the Premises.
H. The plumbing facilities shall not be used for any purpose other than
that for which they are constructed, and no foreign substances of any kind shall
be thrown therein, and the expense of any breakage, stoppage or damage resulting
from a violation of this provision shall be borne by Tenant.
I. All contractors and/or technicians performing work for Tenant within
the Premises shall be approved by Landlord before commencing work. This shall
apply to, but shall not be limited to, installation of telephones, telegraph
equipment, electrical devices and attachments, and all installations affecting
floors, walls, windows, doors, ceilings, equipment or any other physical feature
of the Premises.
J. Canvassing, soliciting and peddling in the Industrial Park, including,
without limitation, the distribution of any handbills or other advertising
matter in automobiles parked in the Business Center, is prohibited, and each
Tenant shall cooperate to prevent the same. In this respect, Tenant shall
promptly report any such activities to Landlord.
E-1
K. In the event Tenant must dispose of crates, boxes or other refuse which
will not fit into office wastepaper baskets, it will be the responsibility of
Tenant to dispose of same in the waste dumpsters provided by Landlord, broken
down into the smallest and most reasonably compact components. In no event shall
Tenant set such items in areas of the Industrial Park other than within Tenant's
own Premises for disposal.
L. If the Premises should become invested with vermin, Tenant at its sole
cost and expense, shall cause the Premises to be exterminated at such time, and
from time to time, to the satisfaction of Landlord.
M. Tenant shall not install any antenna or aerial wires, radio or
television equipment, inside or outside of the Premises without Landlord's prior
written approval and upon such reasonable terms and conditions as may be
specified by Landlord in each and every instance.
