EXHIBIT 10.36
VERSION 4/98
INDUSTRIAL LEASE AGREEMENT
BETWEEN
INDUSTRIAL PROPERTY FUND II, L.P.
AS LANDLORD
AND
ANDA GENERICS, INC.
AS TENANT
LEASE INDEX
SECTION SUBJECT
------- -------
1 Basic Lease Provisions
2 Demised Premises
3 Term
4 Base Rent
5 Security Deposit
6 Operating Expenses and Additional Rent
7 Use of Demised Premises
8 Insurance
9 Utilities
10 Maintenance and Repairs
11 Tenant's Personal Property; Indemnity
12 Tenant's Fixtures
13 Signs
14 Landlord's Lien
15 Governmental Regulations
16 Environmental Matters
17 Construction of Demised Premises
18 Tenant Alterations and Additions
19 Services by Landlord
20 Fire and Other Casualty
21 Condemnation
22 Tenant's Default
23 Landlord's Right of Entry
24 Lender's Rights
25 Estoppel Certificate
26 Landlord's Liability
27 Notices
28 Brokers
29 Assignment and Subleasing
30 Termination or Expiration
31 Reserved
32 Late Payments
33 Rules and Regulations
34 Quiet Enjoyment
35 Miscellaneous
36 Special Stipulations
37 Lease Date
38 Authority
39 No Offer Until Executed
Exhibit "A" Demised Premises
Exhibit "B" Building Shell Specifications
Exhibit "C" Special Stipulations
Exhibit "D" Rules and Regulations
Exhibit "E" Certificate of Authority - Tenant
Exhibit "E-1" Certificate of Authority - Landlord
Exhibit "F" Form of Letter of Credit
Exhibit "G" Site Plan for Building E
Exhibit "H" First Union SNDA
Exhibit "I" Memorandum of Lease
Exhibit "J" Hazardous Materials Management Plan
INDUSTRIAL LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of the "Lease Date" (as
defined in Section 37 herein) by and between Industrial Property Fund II, L.P.,
a Georgia limited partnership ("Landlord"), and Anda Generics, Inc., a Florida
corporation ("Tenant") (the words "Landlord" and "Tenant" to include their
respective legal representatives, successors and permitted assigns where the
context requires or permits).
W I T N E S S E T H:
1. BASIC LEASE PROVISIONS. The following constitute the basic
provisions of this Lease:
(a) Demised Premises Address: 0000 Xxxxxx Xxxx Xxxxxx, Xxxxxxx
00000
(b) Demised Premises Square Footage: approximately 152,082 sq. ft.,
subject to remeasurement pursuant to Section 2.
(c) Building Square Footage: approximately 152,082 sq. ft., subject
to remeasurement pursuant to Section 2.
(d) Annual Base Rent (exclusive of applicable sales taxes):
Lease Year 1 $927,700.20 ($6.10 per sq. ft./yr.)
Lease Year 2 $959,637.42 ($6.31 per sq. ft./yr.)
Lease Year 3 $993,095.46 ($6.53 per sq. ft./yr.)
Lease Year 4 $1,028,074.32 ($6.76 per sq. ft./yr.)
Lease Year 5 $1,064,574.00 ($7.00 per sq. ft./yr.)
Lease Year 6 $1,102,594.50 ($7.25 per sq. ft./yr.)
Lease Year 7 $1,140,615.00 ($7.50 per sq. ft./yr.)
Lease Year 8 $1,180,156.32 ($7.76 per sq. ft./yr.)
Lease Year 9 $1,221,218.46 ($8.03 per sq. ft./yr.)
Lease Year 10 $1,263,801.48 ($8.31 per sq. ft./yr.)
(e) Monthly Base Rent Installments (exclusive of applicable sales
taxes):
Lease Year 1 $77,308.35 ($6.10 per sq. ft./yr.)
Lease Year 2 $79,969.79 ($6.31 per sq. ft./yr.)
Lease Year 3 $82,757.96 ($6.53 per sq. ft./yr.)
Lease Year 4 $85,672.86 ($6.76 per sq. ft./yr.)
Lease Year 5 $88,714.50 ($7.00 per sq. ft./yr.)
Lease Year 6 $91,882.88 ($7.25 per sq. ft./yr.)
Lease Year 7 $95,051.25 ($7.50 per sq. ft./yr.)
Lease Year 8 $98,346.36 ($7.76 per sq. ft./yr.)
Lease Year 9 $101,768.21 ($8.03 per sq. ft./yr.
Lease Year 10 $105,316.79 ($8.31 per sq. ft./yr.)
(f) Lease Commencement Date: The earlier of the date that (a)
Landlord achieves substantial completion of the Demised
Premises (excluding any improvements to be made by Tenant) or
(b) Tenant takes partial occupancy of the Demised Premises for
business purposes with proper approval by City of Weston.
(g) Base Rent Commencement Date: Lease Commencement Date
(h) Expiration Date: Ten (10) years after the Lease Commencement
Date
(i) Term: 10 years
(j) Tenant's Operating Expense Percentage: 100%
(k) Security Deposit: See Special Stipulation 1.
(l) Permitted Use: Office, light manufacturing and assembly,
research and development, telemarketing, warehousing and
distribution, and ancillary and related uses to Tenant's
business.
(m) Address for notice:
Landlord: Industrial Property Fund II, L.P.
c/o Industrial Developments
International, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President - Operations
Tenant: Anda Generics, Inc.
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
With copy to: Andrx Corporation
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
(n) Address for rental payments:
Industrial Property Fund II, L.P.
c/o IDI Services Group, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(o) Broker(s): CB/Xxxxxxx Xxxxx
Continental Real Estate Company
Capital Realty Services, Inc.
(p) Guarantor: Andrx Corporation
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
2. DEMISED PREMISES. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, Landlord does hereby
lease and demise unto Tenant, and Tenant does hereby hire, lease and accept,
from Landlord all upon the terms and conditions hereinafter set forth the
following premises, referred to as the "Demised Premises", as outlined on
EXHIBIT A attached hereto and incorporated herein: approximately 152,082 square
feet of space, approximately 50,000 square feet of which is office space, having
an address as set forth in Section 1(a), located within Building A (the
"Building"), which contains a total of approximately 152,082 square feet and is
located within Weston Business Center (the "Project"), located in Broward
County, Florida. Within thirty (30) calendar days after substantial completion
of the Demised Premises, Landlord shall deliver to Tenant a written
certification of an architect of the square footage contained in the Building
and in the Demised Premises, based on a measurement from the outside of the
exterior walls of the Building and the Demised Premises. The square footage so
certified by such architect shall conclusively determine the Building Square
Footage and the Demised Premises Square Footage for all purposes under this
Lease, including, without limitation, calculation of annual base rent and
monthly base rent installments. The Annual Base Rent and Monthly
-2-
Base Rent Installments shall be adjusted on the basis of the square footage of
the Building and the Demised Premises so certified by such architect, using the
following amounts for calculation:
Lease Year 1 $6.10 per sq. ft./yr. Lease Year 6 $7.24 per sq. ft./yr.
Lease Year 2 $6.31 per sq. ft./yr. Lease Year 7 $7.50 per sq. ft./yr.
Lease Year 3 $6.53 per sq. ft./yr. Lease Year 8 $7.76 per sq. ft./yr.
Lease Year 4 $6.76 per sq. ft./yr. Lease Year 9 $8.03 per sq. ft./yr.
Lease Year 5 $7.00 per sq. ft./yr. Lease Year 10 $8.31 per sq. ft./yr.
Notwithstanding the foregoing, if the square footage of the Demised Premises as
determined by Landlord's architect exceeds one hundred five (105%) percent of
the square footage of the Demised Premises as shown in the Plans and
Specifications, then Tenant shall not be responsible for any Base Rent that
would be payable with respect to the square footage in excess of such 105%
figure.
3. TERM. To have and to hold the Demised Premises for a preliminary
term (the "Preliminary Term") commencing on the Lease Date and ending on the
Lease Commencement Date as set forth in Section 1(f), and a primary term (the
"Term") commencing on the Lease Commencement Date and terminating on the
Expiration Date as set forth in Section 1(h), as the Lease Commencement Date and
the Expiration Date may be revised pursuant to Section 17. The term "Lease Year"
shall mean each one (1) year period of the Term (or portion thereof if the last
Lease Year of the Term is less than one (1) full year due to termination prior
to the Expiration Date) beginning on the Lease Commencement Date, and each
anniversary thereof, and ending on the day immediately prior to the next
succeeding anniversary of the Lease Commencement Date.
4. BASE RENT. Tenant shall pay to Landlord at the address set forth in
Section 1(n), as base rent for the Demised Premises, commencing on the Base Rent
Commencement Date and continuing throughout the Term in lawful money of the
United States, the annual amount set forth in Section 1(d) payable in equal
monthly installments as set forth in Section 1(e) (the "Base Rent"), payable in
advance, without demand and without abatement, reduction, set-off or deduction,
except as otherwise expressly set forth in this Lease, on the first day of each
calendar month during the Term. If the Base Rent Commencement Date shall fall on
a day other than the first day of a calendar month, the Base Rent shall be
apportioned pro rata on a per diem basis (i) for the period between the Base
Rent Commencement Date and the first day of the following calendar month (which
pro rata payment shall be due and payable on the Base Rent Commencement Date),
and (ii) for the last partial month of the Term, if applicable. No payment by
Tenant or receipt by Landlord of rent hereunder shall be deemed to be other than
on account of the amount due, and no endorsement or statement on any check or
any letter accompanying any check or payment of rent shall be deemed an accord
and satisfaction, and Landlord may accept such check as payment without
prejudice to Landlord's right to recover the balance of such installment or
payment of rent or pursue any other remedies available to Landlord.
5. SECURITY DEPOSIT. Upon Tenant's execution of this Lease, Tenant will
pay to Landlord the sum set forth in Section 1(k) (the "Security Deposit") as
security for the full and faithful performance by Tenant of each and every term,
covenant and condition of this Lease. The acceptance by Landlord of the Security
Deposit paid by Tenant shall not render this Lease effective unless and until
Landlord shall have executed and delivered to Tenant a fully executed copy of
this Lease. The Security Deposit may be commingled with Landlord's other funds
or held by Landlord in a separate interest bearing account, with interest paid
to Landlord, as Landlord may elect. In the event that Tenant is in default under
this Lease, Landlord may retain the security Deposit for the payment of any sum
due Landlord or which Landlord may expend or be required to expend by reason of
Tenant's default or failure to perform; PROVIDED, HOWEVER, that any such
retention by Landlord shall not be or be deemed to be an election of remedies by
Landlord or viewed as liquidated damages, it being expressly understood and
agreed that Landlord shall have the right to pursue any and all other remedies
available to it under the terms of this Lease or otherwise. In the event all or
any portion of the Security Deposit is so retained by Landlord, Tenant shall,
within five (5) days of demand therefor from Landlord, replenish the Security
Deposit to the full amount set forth in Section 1(k). In the event that Tenant
shall comply with all of the terms, covenants and conditions of this Lease, the
security deposit shall be returned to Tenant within thirty (30) days after the
later of (a) the Expiration Date or (b) the date that Tenant delivers possession
of the Demised Premises to Landlord. In the event of a sale of the Building,
Landlord shall transfer the security deposit to the purchaser, and upon
acceptance by such purchaser, Landlord shall be released from all liability for
the return of the security deposit. Tenant shall not assign or encumber the
money deposited as security, and neither Landlord nor its successors or assigns
shall be bound by any such assignment or encumbrance.
6. OPERATING EXPENSES AND ADDITIONAL RENT.
(a) Tenant agrees to pay as Additional Rent (as defined in Section
6(b) below) its proportionate share of Operating Expenses (as hereinafter
defined). "Operating Expenses" shall be defined as all reasonable expenses for
operation, repair, replacement and maintenance as necessary to keep the Building
and the common areas, driveways, and parking areas associated therewith
(collectively,
-3-
the "Building Common Area") in good order, condition and repair, including but
not limited to, utilities for the Building Common Area, expenses associated with
the driveways and parking areas (including sealing and restriping, and snow,
trash and ice removal), security systems, fire detection and prevention systems,
lighting facilities, landscaped areas, walkways, painting and caulking,
directional signage, curbs, drainage strips, sewer lines, all charges assessed
against or attributed to the Building pursuant to any applicable easements,
covenants, restrictions, agreements, declaration of protective covenants or
development standards, property management fees, all real property taxes and
special assessments imposed upon the Building, the Building Common Area and the
land on which the Building and the Building Common Area are constructed, all
costs of insurance paid by Landlord with respect to the Building and the
Building Common Area, and costs of improvements to the Building and the Building
Common Area required by any law, ordinance or regulation applicable to the
Building and the Building Common Area generally (and not because of the
particular use of the Building or the Building Common Area by a particular
tenant), which cost shall be amortized on a straight line basis over the useful
life of such improvement, as reasonably determined by Landlord. Operating
Expenses shall also include the operating expenses of the common areas of the
Project, if any, which expenses shall be proportionately allocated among the
completed buildings of the Project, based on the square footage of each building
or as otherwise provided by the applicable covenants, restrictions, agreements
or declaration of protective covenants for the Project. Operating Expenses shall
not include expenses for the costs of any maintenance and repair required to be
performed by Landlord at its own expense under Section (10)(b). Further,
Operating Expenses shall not include the costs for capital improvements unless
such costs are incurred for the purpose of causing a material decrease in the
Operating Expenses of the Building or the Building Common Area or are made with
respect to improvements made to comply with laws, ordinances or regulations as
described above. The proportionate share of Operating Expenses to be paid by
Tenant shall be a percentage of the Operating Expenses based upon the proportion
that the square footage of the Demised Premises bears to the total square
footage of the Building (such figure referred to as "Tenant's Operating Expense
Percentage" and set forth in Section 1(j)). Prior to or promptly after the
beginning of each calendar year during the Term, Landlord shall reasonably
estimate the total amount of Operating Expenses to be paid by Tenant during each
such calendar year and Tenant shall pay to Landlord one-twelfth (1/12) of such
sum on the first day of each calendar month during each such calendar year, or
part thereof, during the Term. Within a reasonable time after the end of each
calendar year (but in no event later than one year after the end of each
calendar year), Landlord shall submit to Tenant a statement of the actual amount
of Operating Expenses for such calendar year, and the actual amount owed by
Tenant, and within thirty (30) days after receipt of such statement, Tenant
shall pay any deficiency between the actual amount owed and the estimates paid
during such calendar year, or in the event of overpayment, Landlord shall remit
such overpayment to Tenant if no Event of Default exists hereunder. The
obligations in the immediately preceding sentence shall survive the expiration
or any earlier termination of this Lease. If the Lease Commencement Date shall
fall on other than the first day of the calendar year, and/or if the Expiration
Date shall fall on other than the last day of the calendar year, Tenant's
proportionate share of the Operating Expenses for such calendar year shall be
apportioned prorata.
(b) Any amounts required to be paid by Tenant hereunder (in addition
to Base Rent) and any charges or expenses incurred by Landlord on behalf of
Tenant under the terms of this Lease shall be considered "Additional Rent"
payable in the same manner and upon the same terms and conditions as the Base
Rent reserved hereunder except as set forth herein to the contrary. Any failure
on the part of Tenant to pay such Additional Rent when and as the same shall
become due shall entitle Landlord to the remedies available to it for
non-payment of Base Rent. Tenant's obligations for payment of Additional Rent
shall begin to accrue on the Lease Commencement Date.
(c) If applicable in the jurisdiction where the Demised Premises are
located, Tenant shall pay and be liable for all rental, sales, use and inventory
taxes or other similar taxes, if any, on the amounts payable by Tenant hereunder
levied or imposed by any city, state, county or other governmental body having
authority, such payments to be in addition to all other payments required to be
paid Landlord by Tenant under the terms of this Lease. Such payment shall be
made by Tenant directly to such governmental body if billed to Tenant, or if
billed to Landlord, such payment shall be paid concurrently with the payment of
the Base Rent, Additional Rent, or such other charge upon which the tax is
based, all as set forth herein.
7. USE OF DEMISED PREMISES.
(a) The Demised Premises shall be used for the Permitted Use set
forth in Section 1(l) and for no other purpose.
(b) Tenant will permit no liens to attach or exist against the
Demised Premises for work ordered or contracted by Tenant, and shall not commit
any waste, reasonable wear and tear excepted.
(c) The Demised Premises shall not be used for any illegal purposes,
and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light
or other effect to occur within or around the Demised Premises that constitutes
a nuisance or trespass. Upon notice by Landlord to Tenant that any of the
aforesaid prohibited uses are occurring, Tenant agrees to promptly remove or
control the same.
-4-
(d) Tenant shall not in any way violate any restrictive covenant in
effect as of the Lease Date, the Protective Covenant referred to in Special
Stipulation 13, or any law or ordinance affecting the Demised Premises, and
shall not in any manner use the Demised Premises so as to cause cancellation of,
or increase the rate of, the fire and extended coverage insurance policy
required hereunder. Landlord makes no (and does hereby expressly disclaim any)
covenant, representation or warranty as to the Permitted Use being allowed by or
being in compliance with any applicable laws, rules, ordinances or restrictive
covenants now or hereafter affecting the Demised Premises, and any zoning
letters, copies of zoning ordinances or other information from any governmental
agency or other third party provided to Tenant by Landlord or any of Landlord's
agents or employees shall be for informational purposes only, Tenant hereby
expressly acknowledging and agreeing that Tenant shall conduct and rely solely
on its own due diligence and investigation with respect to the compliance of the
Permitted Use with all such applicable laws, rules, ordinances and restrictive
covenants and not on any such information provided by Landlord or any of its
agents or employees. Landlord represents and warrants that, as of the Lease
Date, the Building and land on which it is situated is zoned Industrial under
PUD under the Weston Zoning Code.
(e) In the event insurance premiums pertaining to the Demised
Premises, the Building, or the Building Common Area, whether paid by Landlord or
Tenant, are increased over the least hazardous rate available due to the nature
of the specific use of the Demised Premises by Tenant, Tenant shall cease the
extra-hazardous use or pay such additional amount as Additional Rent.
8. INSURANCE.
(a) Tenant covenants and agrees that from and after the Lease
Commencement Date or any earlier date upon which Tenant enters or occupies the
Demised Premises or any portion thereof, Tenant will carry and maintain, at its
sole cost and expense, the following types of insurance, in the amounts
specified and in the form hereinafter provided for:
(i) Liability insurance in the Commercial General Liability form
(or reasonable equivalent thereto) covering the Demised Premises and Tenant's
use thereof against claims for bodily injury or death, property damage and
product liability occurring upon, in or about the Demised Premises, such
insurance to be written on an occurrence basis (not a claims made basis), to be
in combined single limits amounts not less than $3,000,000.00 and to have
general aggregate limits of not less than $5,000,000.00 for each policy year.
The insurance coverage required under this Section 8(a)(i) shall, in addition,
extend to any liability of Tenant arising out of the indemnities provided for in
Section 11 and, if necessary, the policy shall contain a contractual endorsement
to that effect.
(ii) Insurance covering (A) all of the items included in the
leasehold improvements constructed in the Demised Premises by or at the expense
of Landlord (collectively, the "Improvements"), including but not limited to
demising walls and the heating, ventilating and air conditioning system and (B)
Tenant's trade fixtures, merchandise and personal property from time to time in,
on or upon the Demised Premises, in an amount not less than one hundred percent
(100%) of their full replacement value from time to time during the Term,
providing protection against perils included within the standard form of
"all-risks" fire and casualty insurance policy, together with insurance against
sprinkler damage, vandalism and malicious mischief. Any policy proceeds from
such insurance relating to the Improvements shall be used solely for the repair,
construction and restoration or replacement of the Improvements damaged or
destroyed unless this Lease shall cease and terminate under the provisions of
Section 20.
(b) All policies of the insurance provided for in Section 8(a) shall
be issued by insurance companies with a rating of not less than "A," and
financial size of not less than Class XII, in the most current available "Best's
Insurance Reports", and licensed to do business in the state in which the
Building is located. Each and every such policy:
(i) shall name Landlord, Lender (as defined in Section 24), and
any other party reasonably designated by Landlord, as an additional insured. In
addition, the coverage described in Section 8(a)(ii)(A) relating to the
Improvements shall also name Landlord as "loss payee";
(ii) shall be delivered to Landlord, in the form of an insurance
certificate reasonably acceptable to Landlord as evidence of such policy, prior
to the Lease Commencement Date and thereafter within thirty (30) days prior to
the expiration of each such policy, and, as often as any such policy shall
expire or terminate. Renewal or additional policies shall be procured and
maintained by Tenant in like manner and to like extent;
(iii) shall contain a provision that the insurer will give to
Landlord and such other parties in interest at least fifteen (15) days notice in
writing in advance of any material change, cancellation, termination or lapse,
or the effective date of any reduction in the amounts of insurance; and
(iv) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may carry.
-5-
(c) In the event that Tenant shall fail to carry and maintain the
insurance coverages set forth in this Section 8, Landlord may upon thirty (30)
days notice to Tenant (unless such coverages will lapse imminently, in which
event two (2) business days' notice shall be given) procure such policies of
insurance and Tenant shall promptly reimburse Landlord therefor, unless Tenant
establishes the lapsed coverage within such thirty (30) day (or two (2) business
day) period.
(d) Landlord and Tenant hereby waive any rights each may have
against the other on account of any loss or damage occasioned to Landlord or
Tenant, as the case may be, their respective property, the Demised Premises, its
contents or to the other portions of the Building, arising from any risk covered
by all risks fire and extended coverage insurance of the type and amount
required to be carried hereunder, provided that such waiver does not invalidate
such policies or prohibit recovery thereunder. The parties hereto shall cause
their respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, to waive any right of subrogation that such
insurers may have against Landlord or Tenant, as the case may be.
9. UTILITIES. During the Term, Tenant shall promptly pay as billed to
Tenant all rents and charges for water and sewer services and all costs and
charges for gas, steam, electricity, fuel, light, power, telephone, heat and any
other utility or service used or consumed in or servicing the Demised Premises
and all other costs and expenses involved in the care, management and use
thereof. Such utilities shall be separately metered and billed to Tenant.
Landlord, at its expense, shall be responsible for all initial metering costs,
hook-up fees and connection charges for such utilities. If Tenant fails to pay
any utility bills or charges, Landlord may, at its option and upon reasonable
notice to Tenant, pay the same and in such event, the amount of such payment,
together with interest thereon at the Interest Rate as defined in Section 32
from the date of such payment by Landlord, will be added to Tenant's next due
payment as Additional Rent.
10. MAINTENANCE AND REPAIRS.
(a) Tenant shall, at its own cost and expense, maintain in good
condition and repair the interior of the Demised Premises, including but not
limited to the heating, air conditioning and ventilation systems, glass, windows
and doors, sprinkler, all plumbing and sewage systems, fixtures, interior walls,
floors (including floor slabs), ceilings, storefronts, plate glass, skylights,
all electrical facilities and equipment including, without limitation, lighting
fixtures, lamps, fans and any exhaust equipment and systems, electrical motors,
and all other appliances and equipment (including, without limitation, dock
levelers, dock shelters, dock seals and dock lighting) of every kind and nature
located in, upon or about the Demised Premises, except as to such maintenance
and repair as is the obligation of Landlord pursuant to Section 10(b). During
the Term, Tenant shall maintain in full force and effect a service contract for
the maintenance of the heating, ventilation and air conditioning systems with an
entity reasonably acceptable to Landlord. Tenant shall deliver to Landlord (i) a
copy of said service contract prior to the Lease Commencement Date, and (ii)
thereafter, a copy of a renewal or substitute service contract within thirty
(30) days prior to the expiration of the existing service contract. Tenant's
obligation shall exclude any maintenance and repair required because of the act
or negligence of Landlord, its employees, contractors or agents, which shall be
the responsibility of Landlord. Landlord shall grant to Tenant, until the
expiration or earlier termination of the Term, without recourse or warranty, a
non-exclusive right during the Term to exercise Landlord's rights under any
warranties obtained with respect to the heating, ventilation and air
conditioning system, or any other portions of the improvements within the
Demised Premises required to be maintained or repaired by Tenant pursuant to
this Lease.
(b) Landlord shall, at its own cost and expense, maintain in good
condition and repair the roof, foundation (beneath the floor slab) and
structural frame of the Building. Landlord's obligation shall exclude the cost
of any maintenance or repair required because of the act or negligence of Tenant
or Tenant's agents, contractors, employees and invitees (collectively, "Tenant's
Affiliates"), the cost of which shall be the responsibility of Tenant.
(c) Except to the extent caused by the negligent action or inaction
or willful misconduct of Landlord, its contractors, employees or agents, and is
not covered by the insurance required to be carried by Tenant pursuant to the
terms of this Lease, Landlord shall not be liable to Tenant or to any other
person for any damage occasioned by failure in any utility system or by the
bursting or leaking of any vessel or pipe in or about the Demised Premises, or
for any damage occasioned by water coming into the Demised Premises or arising
from the acts or neglects of occupants of adjacent property or the public.
11. TENANT'S PERSONAL PROPERTY; INDEMNITY. All of Tenant's personal
property in the Demised Premises shall be and remain at Tenant's sole risk.
Landlord, its agents, employees and contractors, shall not be liable for, and
Tenant hereby releases Landlord from, any and all liability for theft thereof or
any damage thereto occasioned by any act of God or by any acts, omissions or
negligence of any persons, except to the extent caused by the negligence or
willful misconduct of Landlord, its agents, employees and contractors. Landlord,
its agents, employees and contractors, shall not be liable for any injury to the
person or property of Tenant or other persons in or about the Demised Premises,
Tenant expressly agreeing to indemnify and save Landlord, its agents, employees
and contractors, harmless, in all such cases, except to the extent caused by the
negligence or willful misconduct of Landlord, its agents, employees and
contractors. Tenant further agrees to indemnify and reimburse Landlord for any
costs or
-6-
expenses, including, without limitation, reasonable attorneys' fees, that
Landlord reasonably may incur in investigating, handling or litigating any such
claim against Landlord by a third person, unless such claim arose from the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. The provisions of this Section 11 shall survive the expiration or
earlier termination of this Lease with respect to any damage, injury or death
occurring before such expiration or termination.
12. TENANT'S FIXTURES. Tenant shall have the right to install in the
Demised Premises trade fixtures and equipment required by Tenant or used by it
in its business, and if installed by Tenant, to remove any or all such trade
fixtures and equipment from time to time during and upon termination or
expiration of this Lease; PROVIDED, HOWEVER, that Tenant shall repair and
restore any damage or injury to the Demised Premises (to the condition in which
the Demised Premises existed prior to such installation) caused by the
installation and/or removal of any such trade fixtures and equipment.
13. SIGNS. No sign, advertisement or notice shall be inscribed,
painted, affixed, or displayed on the windows or exterior walls of the Demised
Premises or on any public area of the Building, except in such places, numbers,
sizes, colors and styles as are approved in advance in writing by Landlord
(which approval shall not be unreasonably withheld, conditioned or delayed), and
which conform to all applicable laws, ordinances, or covenants affecting the
Demised Premises. Any and all signs installed or constructed by or on behalf of
Tenant pursuant hereto shall be installed, maintained and removed by Tenant at
Tenant's sole cost and expense.
14. WAIVER OF LANDLORD'S LIEN. Landlord hereby waives any statutory and
common law liens for rent (other than judgment liens). Although such waiver is
hereby deemed to be automatic and self-executing, Landlord agrees to execute
such instruments as may be reasonably required from time to time in order to
confirm such waiver.
15. GOVERNMENTAL REGULATIONS. Tenant shall promptly comply throughout
the Term, at Tenant's sole cost and expense, with all present and future laws,
ordinances and regulations of all applicable governing authorities relating to
(a) all or any part of the Demised Premises, and (b) to the use or manner of use
of the Demised Premises and the Building Common Area. In the event that such
law, ordinance or regulation requires a renovation, improvement or replacement
to the Demised Premises or the Building Common Area, then Tenant shall be
required to make such renovation, improvement or replacement at Tenant's sole
cost and expense and in compliance with Section 18 hereof only if such law,
ordinance or regulation is applicable because of Tenant's particular use of the
Demised Premises or the Building Common Area, and is not applicable to the
Project in general. In addition, if the renovation, improvement or replacement
is required to comply with a law, ordinance or regulation that was not in effect
or did not require compliance at the time the leasehold improvements were
constructed in the Demised Premises pursuant to Section 17 and is not related to
Tenant's particular use of the Demised Premises, then the cost of such
renovation, improvement or replacement shall be amortized on a straight-line
basis over the useful life of the item in question, as reasonably determined by
Landlord, and Tenant shall be obligated to pay for the portion of such costs
attributable to the remainder of the Term, including any extensions thereof.
Tenant shall also observe and comply with the requirements of all policies of
public liability, fire and other policies of insurance at any time in force with
respect to the Demised Premises.
16. ENVIRONMENTAL MATTERS.
(a) For purposes of this Lease:
(i) "Contamination" as used herein means the presence of or
release of Hazardous Substances (as hereinafter defined) into any environmental
media from, upon, within, below, into or on any portion of the Demised Premises,
the Building, the Building Common Area or the Project so as to require
remediation, cleanup or investigation under any applicable Environmental Law (as
hereinafter defined).
(ii) "Environmental Laws" as used herein means all federal,
state, and local laws, regulations, orders, permits, ordinances or other
requirements, which exist now or as may exist hereafter, concerning protection
of human health, safety and the environment, all as may be amended from time to
time.
(iii) "Hazardous Substances" as used herein means any hazardous
or toxic substance, material, chemical, pollutant, contaminant or waste as those
terms are defined by any applicable Environmental Laws (including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 et seq. ("CERCLA") and the Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq. ["RCRA"]) and any solid wastes,
polychlorinated biphenyls, urea formaldehyde, asbestos, radioactive materials,
radon, explosives, petroleum products and oil.
(b) Landlord represents that, except as revealed to Tenant in
writing by Landlord, to Landlord's actual knowledge, Landlord has not treated,
stored or disposed of any Hazardous Substances upon or within the Demised
Premises or the land on which the Building is constructed, nor, to Landlord's
-7-
actual knowledge, has any predecessor owner of the Demised Premises or the land
on which the Building is constructed.
(c) Tenant covenants that all its activities, and the activities of
Tenant's Affiliates (as defined in Section 10(b)), on the Demised Premises, the
Building, or the Project during the Term will be conducted in compliance with
Environmental Laws. As to the business of Tenant which Tenant intends to conduct
at the Demised Premises, Tenant warrants that it is currently in compliance with
all applicable Environmental Laws and that there are no pending or threatened
notices of deficiency, notices of violation, orders, or judicial or
administrative actions involving alleged violations by Tenant of any
Environmental Laws. Tenant, at Tenant's sole cost and expense, shall be
responsible for obtaining all permits or licenses or approvals under
Environmental Laws necessary for Tenant's operation of its business on the
Demised Premises and shall make all notifications and registrations required by
any applicable Environmental Laws. Tenant, at Tenant's sole cost and expense,
shall at all times comply with the terms and conditions of all such permits,
licenses, approvals, notifications and registrations and with any other
applicable Environmental Laws. Tenant warrants that it has obtained or will
obtain all such permits, licenses or approvals and made all such notifications
and registrations required by any applicable Environmental Laws necessary for
Tenant's operation of its business on the Demised Premises.
(d) Tenant shall not cause or permit any Hazardous Substances to be
brought upon, kept or used in or about the Demised Premises, the Building, or
the Project without the prior written consent of Landlord, which consent shall
not be unreasonably withheld; PROVIDED, HOWEVER, that the consent of Landlord
shall not be required for the use at the Demised Premises of cleaning supplies,
toner for photocopying machines and other similar materials, and
pharmaceutical-related products in containers and quantities reasonably
necessary for and consistent with normal and ordinary use by Tenant in the
routine operation or maintenance of Tenant's office equipment or in the routine
janitorial service, cleaning and maintenance for the Demised Premises and
operation of Tenant's business. For purposes of this Section 16, Landlord shall
be deemed to have reasonably withheld consent if Landlord determines that the
presence of such Hazardous Substance within the Demised Premises could result in
a risk of harm to person or property or otherwise negatively affect the value or
marketability of the Building or the Project.
(e) Tenant shall not cause or permit the release of any Hazardous
Substances by Tenant or Tenant's Affiliates into any environmental media such as
air, water or land, or into or on the Demised Premises, the Building or the
Project in any manner that violates any Environmental Laws. If such release
shall occur, Tenant shall (i) take all steps reasonably necessary to contain and
control such release and any associated Contamination, (ii) clean up or
otherwise remedy such release and any associated Contamination to the extent
required by, and take any and all other actions required under, applicable
Environmental Laws and (iii) notify and keep Landlord reasonably informed of
such release and response.
(f) Regardless of any consents granted by Landlord pursuant to
Section 16(d) allowing Hazardous Substances upon the Demised Premises, Tenant
shall under no circumstances whatsoever cause or permit (i) any activity on the
Demised Premises which would cause the Demised Premises to become subject to
regulation as a hazardous waste treatment, storage or disposal facility under
RCRA or the regulations promulgated thereunder, (ii) the discharge of Hazardous
Substances into the storm sewer system serving the Project or (iii) the
installation of any underground storage tank or underground piping on or under
the Demised Premises.
(g) Tenant shall and hereby does indemnify Landlord and hold
Landlord harmless from and against any and all expense, loss, and liability
suffered by Landlord (except to the extent that such expenses, losses, and
liabilities arise out of the negligence or willful act of Landlord, its agents,
employees or contractors), by reason of the storage, generation, release,
handling, treatment, transportation, disposal, or arrangement for transportation
or disposal, of any Hazardous Substances (whether accidental, intentional, or
negligent) by Tenant or Tenant's Affiliates or by reason of Tenant's breach of
any of the provisions of this Section 16. Such expenses, losses and liabilities
shall include, without limitation, (i) any and all expenses that Landlord may
incur to comply with any Environmental Laws; (ii) any and all costs that
Landlord may incur in studying or remedying any Contamination at or arising from
the Demised Premises, the Building, or the Project; (iii) any and all costs that
Landlord may incur in studying, removing, disposing or otherwise addressing any
Hazardous Substances; (iv) any and all fines, penalties or other sanctions
assessed upon Landlord; and (v) any and all legal and professional fees and
costs incurred by Landlord in connection with the foregoing. The indemnity
contained herein shall survive the expiration or earlier termination of this
Lease.
17. CONSTRUCTION OF DEMISED PREMISES.
(a) Landlord shall, at Landlord's sole cost and expense, construct
the shell of the Building in accordance with the specifications set forth on
EXHIBIT B attached hereto. Promptly after the Lease Date, Landlord and Tenant
shall meet to discuss the terms of preliminary space plans for the Demised
Premises (the "Preliminary Space Plans") and, within twenty one (21) days from
the Lease Date, Landlord and Tenant shall agree upon the Preliminary Space
Plans. Within thirty (30) days after the Preliminary Space Plans are agreed upon
by Landlord and Tenant, Landlord shall prepare, at Landlord's sole cost and
expense, and submit to Tenant a set of plans and specifications and/or
construction drawings (collectively, the "Plans and Specifications") based on
the Preliminary Space Plans, covering all work to
-8-
be performed by Landlord in constructing the Improvements (as defined in Section
8(a)(ii)) which will also incorporate Tenant provided work necessary for
permitting in the City of Weston (i.e. racking, conveying, power etc.). Tenant
shall have five (5) business days after receipt of the plans and specifications
in which to review and to give to Landlord written notice of its approval of the
plans and specifications or its requested changes to the Plans and
Specifications. Tenant shall have no right to request any changes to the plans
and specifications which would materially alter either the Demised Premises or
the exterior appearance or basic nature of the Building, as the same are
contemplated by the preliminary Space Plans. If Tenant fails to approve or
request changes to the Plans and Specifications by five (5) business days after
its receipt thereof, then Tenant shall be deemed to have approved the Plans and
Specifications and the same shall thereupon be final (subject to the following
paragraph). If Tenant requests any changes to the Plans and Specifications,
Landlord shall make those changes which are reasonably requested by Tenant and
shall within ten (10) days of its receipt of such request submit the revised
portion of the Plans and specifications to Tenant. Tenant may not thereafter
disapprove the revised portions of the Plans and specifications unless Landlord
has unreasonably failed to incorporate reasonable comments of Tenant and,
subject to the foregoing and subject to the following paragraph, the Plans and
specifications, as modified by said revisions, shall be deemed to be final upon
the submission of said revisions to Tenant.
Landlord shall retain Current Construction Company as its
general contractor for the Improvements. Within five (5) business days following
receipt of the final approved Plans and Specifications for the Demised Premises,
Landlord shall submit the major subcontracted portions of the final approved
Plans and Specifications for competitive bid to at least three (3)
subcontractors. Within five (5) business days after the opening of the bids,
Landlord shall submit to Tenant a proposed construction budget for the
Improvements (the "Construction Budget"), delineating the cost of the
Improvements and any excess thereof over the Tenant Allowance (as defined in
Special Stipulation 12). Landlord will make every reasonable effort to obtain
the best possible pricing in connection with the construction of the
Improvements. If the Construction Budget does not exceed the amount of the
Tenant Allowance, then Tenant shall acknowledge and approve the Construction
Budget simultaneously with Landlord's submission of the Construction Budget to
Tenant. If the Construction Budget exceeds the amount of the Tenant Allowance,
then, within five (5) business days from submission of the Construction Budget
by Landlord, Tenant shall either approve the Construction Budget as submitted or
provide Landlord with modifications to the Plans and Specifications to reduce
the Construction Budget. If Tenant fails to approve the Construction Budget or
submit modifications to the Plans and Specifications within such five (5)
business day period, then the Construction Budget shall be deemed approved as
submitted. If Tenant timely submits modifications to the Plans and
Specifications pursuant to the preceding sentence, Landlord shall, within seven
(7) business days, review and approve the modified Plans and Specifications (and
submit a revised Construction Budget), or disapprove the modified Plans and
Specifications (and give Tenant its reasons for disapproval). If the revised
Construction Budget does not exceed the amount of the Tenant Allowance, then
Tenant shall acknowledge and approve the revised Construction Budget
simultaneously with Landlord's submission of the Construction Budget to Tenant.
If the revised Construction Budget exceeds the amount of the Tenant Allowance
and Tenant elects to make further changes to the Plans and Specifications, the
time required to make such changes shall be a Tenant delay and the Term and
Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the
date Landlord would have achieved substantial completion, but for such Tenant's
delay.
Tenant shall at all times in its review of the plans and
specifications, and of any revisions thereto, act reasonably and in good faith.
After Tenant has approved the Plans and Specifications or the Plans and
Specifications have otherwise been finalized pursuant to the procedures set
forth hereinabove, any subsequent changes to the Plans and Specifications
requested by Tenant shall be at Tenant's sole cost and expense and subject to
Landlord's written approval, which approval shall not be unreasonably withheld,
conditioned or delayed. If after the Plans and specifications have been
finalized pursuant to the procedures set forth hereinabove Tenant requests any
further changes to the Plans and specifications, the time required to make such
changes shall be a Tenant delay and, the Term and Tenant's obligation to pay
Base Rent hereunder shall nevertheless begin on the date Landlord would have
achieved substantial completion, but for such Tenant's delay.
Additionally, within twenty one (21) days after the Lease Date,
Tenant shall prepare and submit to Landlord Tenant's furniture, fixture and
equipment plans (including, but not limited to, plans for racking and
conveyor/material handling systems) (the "FFE Plans") in form and detail
necessary to enable Landlord to obtain its permits and licenses to construct the
Demised Premises. Any delay in delivery to Landlord of the FFE Plans, or changes
to the FFE Plans, which delays Landlord in obtaining its permits and licenses to
construct the Demised Premises, shall be deemed a Tenant delay and the Term and
Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the
date Landlord would have achieved substantial completion, but for such Tenant's
delay.
(b) Landlord shall use reasonable speed and diligence to
substantially complete the Improvements, at Landlord's sole cost and expense
(including, without limitation, all architectural and engineering fees, all
impact fees and all permitting fees and costs related to the construction of the
Demised Premises), and have the Demised Premises ready for occupancy on or
before the Lease Commencement Date set forth in Section 1(f). If the Demised
Premises are not substantially complete on that date, such failure to complete
shall not in any way affect the obligation of Tenant hereunder except that the
Lease Commencement Date, the Base Rent Commencement Date, and the Expiration
Date shall
-9-
be postponed one day for each day substantial completion is delayed until the
Demised Premises are substantially complete, unless the delay is caused by
Tenant's failure to approve the Plans and Specifications as set forth in Section
17(a) or by change orders requested by Tenant after approval of the Plans and
Specifications. No liability whatsoever shall arise or accrue against Landlord
by reason of its failure to deliver or afford possession of the Demised
Premises, and Tenant hereby releases and discharges Landlord from and of any
claims for damage, loss, or injury of every kind whatsoever as if this Lease
were never executed. In no event shall substantial completion be deemed to have
occurred prior to the date that a conditional or non-conditional Certificate of
Occupancy (or other similar certificate allowing Tenant to occupy the Demised
Premises) has been obtained for the Demised Premises and the Landlord's
construction of the Demised Premises and the parking area for the Building is
sufficiently complete in accordance with the Plans and Specifications so as to
allow Tenant to occupy the Demised Premises for the use and purposes intended
without unreasonable disturbance or interruption, subject to Landlord's
completion of the Punchlist items.
(c) Upon substantial completion of the Demised Premises, a
representative of Landlord and a representative of Tenant together shall inspect
the Demised Premises and generate a punchlist of defective or uncompleted items
relating to the completion of construction of the Improvements (the
"Punchlist"). Landlord shall, within a reasonable time after the Punchlist is
prepared and agreed upon by Landlord and Tenant, complete such incomplete work
and remedy such defective work as is set forth on the Punchlist. All
construction work performed by Landlord shall be deemed approved by Tenant in
all respects except for (i) items of said work which are not completed or do not
conform to the Plans and Specifications and which are included on the Punchlist
or (ii) items warranted by or to be maintained by Landlord or (iii) latent
defects. Upon Landlord's completion of the Punchlist, Landlord shall prepare a
completion of punchlist agreement which Tenant shall promptly execute.
(d) Upon substantial completion of the Demised Premises and the
creation of the Punchlist, Tenant shall execute and deliver to Landlord a letter
of acceptance in which Tenant (i) accepts the Demised Premises subject only to
items listed in Section 17(c)(i) - (iii) above and Landlord's completion of the
items listed on the Punchlist and (ii) confirms that the Lease Commencement
Date, the Base Rent Commencement Date and the Expiration Date remain as set
forth in Section 1, or if revised pursuant to the terms hereof, setting forth
such dates as so revised and (iii) confirms the Building Square Footage, the
Demised Premises Square Footage and the Annual Base Rent and Monthly Base Rent
Installments in accordance with Section 2.
(e) Notwithstanding anything to the contrary contained in this
Lease, for the first (1st) Lease Year, Landlord hereby provides a warranty in
favor of Tenant to repair or replace (if needed) any defect in the Improvements
constructed by Landlord, so long as the need for such repair or replacement is
not caused by the negligence or willful misconduct of Tenant or its agents,
employees or contractors. The warranty contained herein is not intended to
derogate from Landlord's obligations expressly set forth in Section 10 of this
Lease.
(f) The Tenant shall have the right to retain, at Tenant's sole
cost and expense, a third party consultant to assist Tenant throughout the
entire construction process, including without limitation the space planning and
plans preparation process. In addition, in no event may Landlord charge Tenant
at any time for any supervisory or coordination or management fees regarding any
construction related to the initial construction of the Demised Premises.
(g) Tenant shall have the right to install, at Tenant's sole cost
and expense and risk, its furniture, trade fixtures and equipment prior to
substantial completion and Landlord shall cooperate regarding same; provided,
however, that no such pre-substantial completion installation may delay or
interfere with Landlord's work pursuant to this Section, and Tenant shall
arrange a meeting to coordinate with Landlord prior to any such pre-substantial
completion installation.
(h) Notwithstanding the provisions of Section 17(b) of this Lease,
in the event that Landlord is unable to substantially complete the Demised
Premises for occupancy by Tenant on or before October 1, 1999, as extended by
Delay as defined below, Tenant may, at its option and as its sole remedy,
terminate this Lease by written notice to Landlord given by November 1, 1999
(provided that substantial completion has not occurred prior to Landlord's
receipt of said termination notice), and thereafter neither Landlord nor Tenant
shall have any further obligation hereunder. For purposes of this Lease, "Delay"
shall mean delays incurred by reason of Tenant's failure to approve the Plans
and Specifications as set forth in Section 17(a) or changes requested by Tenant
in the Plans and Specifications after Tenant's approval thereof, and for such
additional time as is equal to the time lost by Landlord or Landlord's
contractors or suppliers in connection with the performance of Landlord's work
and/or the construction of the Building and related improvements due to strikes
or other labor troubles, governmental restrictions and limitations, war or other
national emergency, non-availability of materials or supplies, delay in
transportation, accidents, floods, fire, damage or other casualties, weather or
other conditions, acts or omissions of Tenant, or delays by utility companies in
bringing utility lines to the Demised Premises.
-10-
18. TENANT ALTERATIONS AND ADDITIONS.
(a) Except for interior, non-structural improvements costing less
than $50,000 each, and $100,000 in the aggregate, Tenant shall not make or
permit to be made any alterations, improvements, or additions to the Demised
Premises (a "Tenant's Change"), without first obtaining on each occasion
Landlord's prior written consent (which consent Landlord agrees not to
unreasonably withhold) and Lender's prior written consent (if such consent is
required). As part of its approval process, Landlord may require that Tenant
submit plans and specifications to Landlord, for Landlord's approval or
disapproval, which approval shall not be unreasonably withheld. All Tenant's
Changes shall be performed in accordance with all legal requirements applicable
thereto and in a good and workmanlike manner with first-class materials. Tenant
shall maintain insurance reasonably satisfactory to Landlord during the
construction of all Tenant's Changes. If Landlord at the time of giving its
approval to any Tenant's Change notifies Tenant in writing that approval is
conditioned upon restoration, then Tenant shall, at its sole cost and expense
and upon the termination or expiration of this Lease, remove the same and
restore the Demised Premises to its condition prior to such Tenant's Change.
Unless consented to in writing by Landlord, no Tenant's Change shall be
structural in nature or impair the structural strength of the Building or reduce
its value. Tenant shall pay the full cost of any Tenant's Change and shall give
Landlord such reasonable security as may be requested by Landlord to insure
payment of such cost. Except as otherwise provided herein and in Section 12, all
Tenant's Changes and all repairs and all other property attached to or installed
on the Demised Premises by or on behalf of Tenant shall immediately upon
completion or installation thereof be and become part of the Demised Premises
and the property of Landlord without payment therefor by Landlord and shall be
surrendered to Landlord upon the expiration or earlier termination of this
Lease.
(b) To the extent permitted by law, all of Tenant's contracts and
subcontracts for such Tenant's Changes shall provide that no lien shall attach
to or be claimed against the Demised Premises or any interest therein other than
Tenant's leasehold interest in the Demised Premises, and that all subcontracts
let thereunder shall contain the same provision. Whether or not Tenant furnishes
the foregoing, Tenant agrees to hold Landlord harmless against all liens, claims
and liabilities of every kind, nature and description which may arise out of or
in any way be connected with such work. Tenant shall not permit the Demised
Premises to become subject to any mechanics', laborers' or materialmen's lien on
account of labor, material or services furnished to Tenant or claimed to have
been furnished to Tenant in connection with work of any character performed or
claimed to have been performed for the Demised Premises by, or at the direction
or sufferance of Tenant and if any such liens are filed against the Demised
Premises, Tenant shall promptly discharge the same; PROVIDED, HOWEVER, that
Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall give to
Landlord, within fifteen days after demand, such security as may be reasonably
satisfactory to Landlord to assure payment thereof and to prevent any sale,
foreclosure, or forfeiture of Landlord's interest in the Demised Premises by
reason of non-payment thereof; provided further that on final determination of
the lien or claim for lien, Tenant shall immediately pay any judgment rendered,
with all proper costs and charges, and shall have the lien released and any
judgment satisfied. If Tenant fails to post such security or does not diligently
contest such lien, Landlord may, without investigation of the validity of the
lien claim, discharge such lien and Tenant shall reimburse Landlord upon demand
for all costs and expenses incurred in connection therewith, which expenses
shall include any reasonable attorneys' fees, paralegals' fees and any and all
costs associated therewith, including litigation through all trial and appellate
levels and any costs in posting bond to effect a discharge or release of the
lien. Nothing contained in this Lease shall be construed as a consent on the
part of Landlord to subject the Demised Premises to liability under any lien law
now or hereafter existing of the state in which the Demised Premises are
located, including, but not limited to the Construction Lien Law of the State of
Florida, for Demised Premises in the State of Florida. For Demised Premises
which are located in the State of Florida, Landlord hereby advises Tenant that
pursuant to the provisions of Chapter 713, Florida Statutes, Tenant has the
obligation to advise Tenant's contractors of the existence of this Section of
the Lease. If Tenant fails to so notify Tenant's contractors, it may render
Tenant's contract(s) with such contractors voidable at the option of Tenant's
contractors.
19. SERVICES BY LANDLORD. Landlord shall be responsible for providing
for maintenance of the Building Common Area, and, except as required by Section
10(b) hereof, Landlord shall be responsible for no other services whatsoever.
Tenant, by payment of Tenant's share of the Operating Expenses, shall pay
Tenant's pro rata share of the expenses incurred by Landlord hereunder.
20. FIRE AND OTHER CASUALTY. In the event the Demised Premises are
damaged by fire or other casualty insured by Landlord, Landlord agrees to
promptly restore and repair the Demised Premises at Landlord's expense,
including the Improvements to be insured by Tenant but only to the extent
Landlord receives insurance proceeds therefor, including the proceeds from the
insurance required to be carried by Tenant on the Improvements. Notwithstanding
the foregoing, in the event that the Demised Premises are (i) in the reasonable
opinion of Landlord, so destroyed that they cannot be repaired or rebuilt within
two hundred forty (240) days after the date of such damage; or (ii) destroyed by
a casualty which is not covered by Landlord's insurance, or if such casualty is
covered by Landlord's insurance but Lender or other party entitled to insurance
proceeds fails to make such proceeds available to Landlord in an amount
sufficient for restoration of the Demised Premises, then Landlord shall give
written notice to Tenant of such determination (the "Determination Notice")
within forty five (45) days of such casualty. Either Landlord or Tenant may
terminate and cancel this Lease effective as of the date of such casualty by
giving
-11-
written notice to the other party within fifteen (15) days after Tenant's
receipt of the Determination Notice. Upon the giving of such termination notice,
all obligations hereunder with respect to periods from and after the effective
date of termination shall thereupon cease and terminate. If no such termination
notice is given, Landlord shall, to the extent of the available insurance
proceeds, make such repair or restoration of the Demised Premises to the
approximate condition existing prior to such casualty, promptly and in such
manner as not to unreasonably interfere with Tenant's use and occupancy of the
Demised Premises (if Tenant is still occupying the Demised Premises). Base Rent
and Additional Rent shall proportionately xxxxx during the time that the Demised
Premises or any part thereof are unusable by reason of any such damage thereto.
In addition to the foregoing, if this Lease is not cancelled and the Landlord
undertakes such reconstruction or repair but does not complete the
reconstruction or repair within eight (8) months after the date of the fire or
other casualty, then the Tenant shall have the additional right to terminate
this Lease by written notice to the Landlord delivered within thirty (30) days
after the expiration of such eight (8) month period, provided that said notice
is received by Landlord prior to substantial completion of said reconstruction,
whereupon both parties shall be relieved of all further obligations hereunder,
except for those obligations which expressly survive a termination of this
Lease.
21. CONDEMNATION.
(a) If all of the Demised Premises is taken or condemned for a
public or quasi-public use, or if a material portion of the Demised Premises is
taken or condemned for a public or quasi-public use and the remaining portion
thereof is not usable by Tenant in the reasonable opinion of Tenant, this Lease
shall terminate as of the earlier of the date title to the condemned real estate
vests in the condemnor or the date on which Tenant is deprived of possession of
the Demised Premises. In such event, the Base Rent herein reserved and all
Additional Rent and other sums payable hereunder shall be apportioned and paid
in full by Tenant to Landlord to that date, all Base Rent, Additional Rent and
other sums payable hereunder prepaid for periods beyond that date shall
forthwith be repaid by Landlord to Tenant, and neither party shall thereafter
have any liability hereunder, except that any obligation or liability of either
party, actual or contingent, under this Lease which has accrued on or prior to
such termination date shall survive.
(b) If only part of the Demised Premises is taken or condemned for
a public or quasi-public use and this Lease does not terminate pursuant to
Section 21(a), Landlord shall, to the extent of the award it receives, restore
the Demised Premises to a condition and to a size as nearly comparable as
reasonably possible to the condition and size thereof immediately prior to the
taking, and there shall be an equitable adjustment to the Base Rent and
Additional Rent according to the value of the Demised Premises before and after
the taking.
(c) Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Section 21, without
deduction therefrom for any estate vested in Tenant by this Lease, and Tenant
shall receive no part of such award. Nothing herein contained (including the
termination of this Lease) shall be deemed to prohibit Tenant from making a
separate claim, against the condemnor, to the extent permitted by law, for the
value of Tenant's moveable trade fixtures, machinery and moving expenses the
unamortized value of any leasehold improvements paid for directly by Tenant and
any other compensable damages, provided that the making of such claim shall not
and does not adversely affect or diminish Landlord's award.
22. TENANT'S DEFAULT.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" of Tenant under this Lease:
(i) if Tenant fails to pay Base Rent or any Additional Rent
hereunder as and when such rent becomes due and such failure shall continue for
more than five (5) days after Landlord gives written notice to Tenant of such
failure;
(ii) Reserved
(iii) if Tenant fails to take possession of the Demised
Premises on the Lease Commencement Date or promptly thereafter;
(iv) if Tenant permits to be done anything which creates a lien
upon the Demised Premises and fails to discharge or bond such lien, or post
security with Landlord acceptable to Landlord within thirty (30) days after
receipt by Tenant of written notice thereof;
(v) if Tenant fails to maintain in force all policies of
insurance required by this Lease and such failure shall continue for more than
ten (10) days after Landlord gives Tenant written notice of such failure;
(vi) if any petition is filed by or against Tenant or any
guarantor of this Lease under any present or future section or chapter of the
Bankruptcy Code, or under any similar law or statute of the United States or any
state thereof (which, in the case of an involuntary proceeding, is not
permanently discharged, dismissed, stayed, or vacated, as the case may be,
within sixty (60) days of
-12-
commencement), or if any order for relief shall be entered against Tenant or any
guarantor of this Lease in any such proceedings;
(vii) if Tenant or any guarantor of this Lease becomes
insolvent or makes a transfer in fraud of creditors or makes an assignment for
the benefit of creditors;
(viii) if a receiver, custodian, or trustee is appointed for
the Demised Premises or for all or substantially all of the assets of Tenant or
of any guarantor of this Lease, which appointment is not vacated within sixty
(60) days following the date of such appointment; or
(ix) if Tenant fails to perform or observe any other term of
this Lease and such failure shall continue for more than thirty (30) days after
Landlord gives Tenant written notice of such failure, or, if such failure cannot
be corrected within such thirty (30) day period, if Tenant does not commence to
correct such default within said thirty (30) day period and thereafter
diligently prosecute the correction of same to completion within a reasonable
time.
(b) Upon the occurrence of any one or more Events of Default,
Landlord may, at Landlord's option, without any demand or notice whatsoever
(except as expressly required in this Section 22 or by applicable law):
(i) Terminate this Lease by giving Tenant notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination and all rights of Tenant under this
Lease and in and to the Demised Premises shall terminate. Tenant shall remain
liable for all obligations under this Lease arising up to the date of such
termination, and Tenant shall surrender the Demised Premises to Landlord on the
date specified in such notice; or
(ii) Terminate this Lease as provided in Section 22(b)(i)
hereof and recover from Tenant all damages Landlord may incur by reason of
Tenant's default, including, without limitation, an amount which, at the date of
such termination, is calculated as follows: (1) the value of the excess, if any,
of (A) the Base Rent, Additional Rent and all other sums which would have been
payable hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the Expiration Date had this Lease not
been terminated (the "Remaining Term"), over (B) the aggregate reasonable rental
value of the Demised Premises for the Remaining Term (including Additional Rent
and any other sums) (which excess, if any shall be discounted to present value
at the "Treasury Yield" as defined below for the Remaining Term); PLUS (2) the
costs of recovering possession of the Demised Premises and all other expenses
incurred by Landlord due to Tenant's default, including, without limitation,
reasonable attorney's fees; PLUS (3) the unpaid Base Rent and Additional Rent
earned as of the date of termination plus any interest and late fees due
hereunder, plus other sums of money and damages owing on the date of termination
by Tenant to Landlord under this Lease or in connection with the Demised
Premises. The amount as calculated above shall be deemed immediately due and
payable. The payment of the amount calculated in subparagraph (ii)(1) shall not
be deemed a penalty but shall merely constitute payment of liquidated damages,
it being understood and acknowledged by Landlord and Tenant that actual damages
to Landlord are extremely difficult, if not impossible, to ascertain. "Treasury
Yield" shall mean the rate of return in percent per annum of Treasury Constant
Maturities for the length of time specified as published in document H.15(519)
(presently published by the Board of Governors of the U.S. Federal Reserve
System titled "Federal Reserve Statistical Release") for the calendar week
immediately preceding the calendar week in which the termination occurs. If the
rate of return of Treasury Constant Maturities for the calendar week in question
is not published on or before the business day preceding the date of the
Treasury Yield in question is to become effective, then the Treasury Yield shall
be based upon the rate of return of Treasury Constant Maturities for the length
of time specified for the most recent calendar week for which such publication
has occurred. If no rate of return for Treasury Constant Maturities is published
for the specific length of time specified, the Treasury Yield for such length of
time shall be the weighted average of the rates of return of Treasury Constant
Maturities most nearly corresponding to the length of the applicable period
specified. If the publishing of the rate of return of Treasury Constant
Maturities is ever discontinued, then the Treasury Yield shall be based upon the
index which is published by the Board of Governors of the U.S. Federal Reserve
System in replacement thereof or, if no such replacement index is published, the
index which, in Landlord's reasonable determination, most nearly corresponds to
the rate of return of Treasury Constant Maturities. In determining the aggregate
reasonable rental value pursuant to subparagraph (ii)(1)(B) above, the parties
hereby agree that, at the time Landlord seeks to enforce this remedy, all
relevant factors should be considered, including, but not limited to, (a) the
length of time remaining in the Term, (b) the then current market conditions in
the general area in which the Building is located, (c) the net effective rental
rates then being obtained by landlords for similar type space of similar size in
similar type buildings in the general area in which the Building is located, (d)
the vacancy levels in the general area in which the Building is located, (e)
current levels of new construction that will be completed during the remainder
of the Term and how this construction will likely affect vacancy rates and
rental rates and (f) inflation; or
(iii) without terminating this Lease, declare immediately due
and payable the sum of the following: (1) the present value (calculated using
the "Treasury Yield") of all Base Rent and Additional Rent due and coming due
under this Lease for the entire remaining Term (as if by the terms of this Lease
they were payable in advance), plus (2) the cost of recovering and reletting the
Demised Premises and all other expenses incurred by Landlord in connection with
Tenant's default, plus
-13-
(3) any unpaid Base Rent, Additional Rent and other rentals, charges,
assessments and other sums owing by Tenant to Landlord under this Lease or in
connection with the Demised Premises as of the date this provision is invoked by
Landlord, plus (4) interest on all such amounts from the date due at the
Interest Rate, and Landlord may immediately proceed to distrain, collect, or
bring action for such sum, or may file a proof of claim in any bankruptcy or
insolvency proceedings to enforce payment thereof; provided, however, that such
payment shall not be deemed a penalty or liquidated damages, but shall merely
constitute payment in advance of all Base Rent and Additional Rent payable
hereunder throughout the Term, and provided further, however, that upon Landlord
receiving such payment, Tenant shall be entitled to receive from Landlord all
rents received by Landlord from other assignees, tenants and subtenants on
account of said Demised Premises during the remainder of the Term (provided that
the monies to which Tenant shall so become entitled shall in no event exceed the
entire amount actually paid by Tenant to Landlord pursuant to this subparagraph
(iii)), less all costs, expenses and attorneys' fees of Landlord incurred but
not yet reimbursed by Tenant in connection with recovering and reletting the
Demised Premises; or
(iv) Without terminating this Lease, in its own name but as
agent for Tenant, enter into and upon and take possession of the Demised
Premises or any part thereof to the extent permitted by law. Any property
remaining in the Demised Premises may be removed and stored in a warehouse or
elsewhere at the cost of, and for the account of, Tenant without Landlord being
deemed guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby unless caused by the negligence or willful misconduct of
Landlord, its agents, employees or contractors. Thereafter, Landlord may, but
shall not be obligated to, lease to a third party the Demised Premises or any
portion thereof as the agent of Tenant upon such terms and conditions as
Landlord may deem necessary or desirable in order to relet the Demised Premises.
The remainder of any rentals received by Landlord from such reletting, after the
payment of any indebtedness due hereunder from Tenant to Landlord, and the
payment of any costs and expenses of such reletting, shall be held by Landlord
to the extent of and for application in payment of future rent owed by Tenant,
if any, as the same may become due and payable hereunder. If such rentals
received from such reletting shall at any time or from time to time be less than
sufficient to pay to Landlord the entire sums then due from Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for any such previous default provided same has not been
cured; or
(v) Without terminating this Lease, and with notice to Tenant,
to the extent permitted by law, enter into and upon the Demised Premises and,
without being liable for prosecution or any claim for damages therefor, maintain
the Demised Premises and repair or replace any damage thereto or do anything or
make any payment for which Tenant is responsible hereunder. Tenant shall
reimburse Landlord immediately upon demand for any expenses which Landlord
incurs in thus effecting Tenant's compliance under this Lease and Landlord shall
not be liable to Tenant for any damages with respect thereto, except for the
negligence or willful misconduct of Landlord, its agents, employees or
contractors; or
(vi) With or without terminating this Lease, allow the Demised
Premises to remain unoccupied and collect rent from Tenant as it comes due; or
(vii) Pursue such other remedies as are available at law or
equity.
(c) If this Lease shall terminate as a result of or while there
exists an Event of Default hereunder, any funds of Tenant held by Landlord may
be applied by Landlord to any damages payable by Tenant (whether provided for
herein or by law) as a result of such termination or default.
(d) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a bar
to the maintenance of any subsequent actions or proceedings for the recovery of
such sum or sums so omitted.
(e) No agreement to accept a surrender of the Demised Premises and
no act or omission by Landlord or Landlord's agents during the Term shall
constitute an acceptance or surrender of the Demised Premises unless made in
writing and signed by Landlord. No re-entry or taking possession of the Demised
Premises by Landlord shall constitute an election by Landlord to terminate this
Lease unless a written notice of such intention is given to Tenant. No provision
of this Lease shall be deemed to have been waived by either party unless such
waiver is in writing and signed by the party making such waiver. Landlord's
acceptance of Base Rent or Additional Rent in full or in part following an Event
of Default hereunder shall not be construed as a waiver of such Event of
Default. No custom or practice which may grow up between the parties in
connection with the terms of this Lease shall be construed to waive or lessen
either party's right to insist upon strict performance of the terms of this
Lease, without a written notice thereof to the other party.
(f) If an Event of Default shall occur, Tenant shall pay to
Landlord, on demand, all expenses incurred by Landlord as a result thereof,
including reasonable attorneys' fees, court costs and expenses actually
incurred.
-14-
(g) Notwithstanding anything to the contrary contained in this
Lease, (i) Landlord's exercise of its rights and remedies upon an Event of
Default by Tenant shall be subject to the compliance by Landlord with applicable
Florida law, and (ii) in the event of any litigation between Landlord and Tenant
arising out of this Lease or Tenant's use and occupancy of the Demised Premises,
the prevailing party shall be entitled to recover its actual, third party costs
and expenses incurred in such litigation, including reasonable attorneys' fees,
at all levels, including appeals. In the event of an uncured default by
Landlord, Tenant shall have the right to exercise any available legal and
equitable remedies (except for the right to set-off rent, except as otherwise
set forth in this Lease), including, without limitation, that if a default by
Landlord renders the Demised Premises untenantable, and such default is not
cured by Landlord within the applicable cure period, then Tenant shall have the
right to terminate this Lease by written notice to Landlord delivered within
thirty (30) days after the expiration of such cure period, whereupon both
parties shall be relieved of all further obligations hereunder (but not from
accrued liabilities).
(h) Landlord shall not be deemed to be in default of this Lease
unless and until Landlord fails to cure any alleged default within thirty (30)
days after written notice from Tenant; provided, however, that if such default
reasonably requires more than thirty (30) days to cure, Landlord shall have a
reasonable time to cure such default, provided Landlord commences to cure within
such thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
23. LANDLORD'S RIGHT OF ENTRY. Subject to Tenant's right to have a
representative of Tenant accompany Landlord, and subject to Tenant's reasonable
security procedures, Tenant agrees to permit Landlord and the authorized
representatives of Landlord and of Lender to enter upon the Demised Premises at
all reasonable times for the purposes of inspecting the Demised Premises and
Tenant's compliance with this Lease, and making any necessary repairs thereto;
provided that, except in the case of an emergency, Landlord shall give Tenant
reasonable prior notice of Landlord's intended entry upon the Demised Premises.
Nothing herein shall imply any duty upon the part of Landlord to do any work
required of Tenant hereunder, and the performance thereof by Landlord shall not
constitute a waiver of Tenant's default in failing to perform it. Landlord shall
not be liable for inconvenience, annoyance, disturbance or other damage to
Tenant by reason of making such repairs or the performance of such work in the
Demised Premises or on account of bringing materials, supplies and equipment
into or through the Demised Premises during the course thereof, and the
obligations of Tenant under this Lease shall not thereby be affected; PROVIDED,
HOWEVER, that Landlord shall (and shall cause its agents, employees and
contractors to) use reasonable efforts not to disturb or otherwise interfere
with Tenant's operations in the Demised Premises in making such repairs or
performing such work. Landlord also shall have the right to enter the Demised
Premises at all reasonable times upon reasonable prior notice to exhibit the
Demised Premises to any prospective purchaser, mortgagee or, in the last six (6)
months of the Term, tenant thereof.
24. LENDER'S RIGHTS.
(a) For purposes of this Lease:
(i) "Lender" as used herein means the current holder of a
Mortgage; (ii) "Mortgage" as used herein means any or all mortgages, deeds to
secure debt, deeds of trust or other instruments in the nature thereof which may
now or hereafter affect or encumber Landlord's title to the Demised Premises,
and any amendments, modifications, extensions or renewals thereof.
(b) This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien and security title of any Mortgage, subject
to the provisions of this Section 24. Tenant recognizes and acknowledges the
right of Lender to foreclose or exercise the power of sale against the Demised
Premises under any Mortgage.
(c) Tenant shall, in confirmation of the subordination set forth in
Section 24(b) and notwithstanding the fact that such subordination is
self-operative, and no further instrument or subordination shall be necessary,
upon demand, at any time or times, execute, acknowledge, and deliver to Landlord
or to Lender any and all instruments requested by either of them to evidence
such subordination.
(d) At any time during the Term, Landlord may, by written notice to
Tenant, make this Lease superior to the lien of any Mortgage. If requested by
Lender, Tenant shall, upon demand, at any time or times, execute, acknowledge,
and deliver to Lender, any and all instruments that may be necessary to make
this Lease superior to the lien of any Mortgage.
(e) If Lender (or Lender's nominee, or other purchaser at
foreclosure) shall hereafter succeed to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of a new lease,
Tenant shall, if requested by such successor, attorn to and recognize such
successor as Tenant's landlord under this Lease without change in the terms and
provisions of this Lease and shall promptly execute and deliver any instrument
that may be necessary to evidence such attornment, provided that such successor
shall not be bound by (i) any payment of Base Rent or Additional Rent for
-15-
more than one month in advance, except prepayments in the nature of security for
the performance by Tenant of its obligations under this Lease, and then only if
such prepayments have been deposited with and are under the control of such
successor, (ii) any provision of any amendment to the Lease to which Lender has
not consented, which consent shall not be unreasonably withheld or delayed (and
it shall be Landlord's responsibility to request such consent) (iii) the
defaults of any prior landlord under this Lease, except as to continuing repair
and maintenance obligations of Landlord or (iv) any offset rights arising out of
the defaults of any prior landlord under this Lease. Upon such attornment, this
Lease shall continue in full force and effect as a direct lease between each
successor landlord and Tenant, subject to all of the terms, covenants and
conditions of this Lease.
(f) Landlord represents and warrants to Tenant that, as of the date
of this Lease, it is the fee simple owner of the Building, and that, as of the
date hereof, there are no (i) ground leases of all or any part of Landlord's
interest in the Building, or (ii) Mortgages with respect to the Building, except
for a Mortgage in favor of First Union. Simultaneously with the execution of
this Lease, Tenant shall execute a Subordination, Non-Disturbance and Attornment
Agreement ("First Union SNDA") in the form attached hereto as EXHIBIT H.
Landlord shall execute the First Union SNDA and, within fifteen (15) days after
the Lease date, Landlord shall cause First Union to execute the First Union SNDA
and shall be promptly returned to Tenant. After the Lease Date, any
subordination of this Lease to a Mortgage or any ground lease shall be
conditioned on the Lender (or ground lessor) and Tenant executing a
Subordination, Non-Disturbance and Attornment Agreement ("SNDA"), in which the
holder of said Mortgage agrees not to disturb Tenant's possession of the Demised
Premises so long as Tenant is not in default hereunder. The SNDA shall also
include (a) the conditions contained in Section 24(e) of this Lease, (b) a
requirement that said holder be given notice and opportunity to cure a landlord
default and (c) other provisions customarily required by lenders. Tenant shall
promptly execute such SNDA upon Landlord's request.
25. ESTOPPEL CERTIFICATE. Landlord and Tenant agree, at any time, and
from time to time, within fifteen (15) days after written request of the other,
to execute, acknowledge and deliver a statement in writing in recordable form to
the requesting party and/or its designee certifying that: (i) this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect, as modified), (ii) the dates to which
Base Rent, Additional Rent and other charges have been paid, (iii) whether or
not, to the best of its knowledge, there exists any failure by the requesting
party to perform any term, covenant or condition contained in this Lease, and,
if so, specifying each such failure, (iv) (if such be the case) Tenant has
accepted the Demised Premises and is conducting its business therein, and (v)
and as to such additional matters as may be reasonably requested, it being
intended that any such statement delivered pursuant hereto may be relied upon by
the requesting party and by any purchaser of title to the Demised Premises or by
any mortgagee or any assignee thereof or any party to any sale-leaseback of the
Demised Premises, or the landlord under a ground lease affecting the Demised
Premises, or any assignee, subtenant or lender of Tenant.
26. LANDLORD LIABILITY. No owner of the Demised Premises, whether or
not named herein, shall have liability hereunder after it ceases to hold title
to the Demised Premises except for accrued liabilities. Neither Landlord nor
Tenant nor any officer, director, shareholder, partner or principal of Landlord
or Tenant, whether disclosed or undisclosed, shall be under any personal
liability with respect to any of the provisions of this Lease. In the event
Landlord is in breach or default with respect to Landlord's obligations or
otherwise under this Lease, Tenant shall look solely to the equity of Landlord
in the Building for the satisfaction of Tenant's remedies, which includes,
without limitation, (a) net proceeds of sale actually received by Landlord and
(b) insurance and condemnation proceeds actually received by Landlord (net of
costs of collection and any transfer of such proceeds to any Lender) which have
not been used to restore the Building. It is expressly understood and agreed
that Landlord's liability under the terms, covenants, conditions, warranties and
obligations of this Lease shall in no event exceed the loss of Landlord's equity
interest in the Building (which equity interest shall be deemed to be the
greater of (y) Landlord's actual equity interest in the Building or (z) twenty
percent (20%) of the then fair market value of the Building) . However, if
Tenant has received a final judgment, not subject to appeal, for damages against
Landlord as a result of an uncured default by Landlord under this Lease, which
judgment exceeds Landlord's equity in the Building, and Landlord fails to pay
said amount within sixty (60) days from the date of the final judgment, then
Tenant will have the right to deduct the unpaid amount of such judgment against
the Base Rent and Additional Rent to become due under this Lease until fully
credited.
27. NOTICES. Any notice required or permitted to be given or served by
either party to this Lease shall be deemed given when made in writing, and
either (i) personally delivered, (ii) deposited with the United States Postal
Service, postage prepaid, by registered or certified mail, return receipt
requested, or (iii) delivered by licensed overnight delivery service providing
proof of delivery, properly addressed to the address set forth in Section 1(m)
(as the same may be changed by giving written notice of the aforesaid in
accordance with this Section 27). If any notice mailed is properly addressed
with appropriate postage but returned for any reason, such notice shall be
deemed to be effective notice and to be given on the date of mailing.
28. BROKERS. Landlord and Tenant represent and warrant to each other
that, except for those parties set forth in Section 1(o) (the "Brokers"), each
party has not engaged or had any conversations or negotiations with any broker,
finder or other third party concerning the leasing of the Demised Premises to
Tenant who would be entitled to any commission or fee based on the execution of
this Lease. Landlord and Tenant hereby further represent and warrant to each
other that they are not receiving and are not
-16-
entitled to receive any rebate, payment or other remuneration, either directly
or indirectly, from the Brokers, and that they are not otherwise sharing in or
entitled to share in any commission or fee paid to the Brokers by Landlord or
any other party in connection with the execution of this Lease, either directly
or indirectly. Landlord and Tenant hereby indemnify and hold harmless each other
against and from any claims for any brokerage commissions by any broker or agent
claiming to have dealt with, by or through the indemnifying party (except those
payable to the Brokers, all of which are payable by Landlord pursuant to a
separate agreement and against which Landlord shall indemnify and hold harmless
Tenant) and all costs, expenses and liabilities in connection therewith,
including, without limitation, reasonable attorneys' fees and expenses, for any
breach of the foregoing. The foregoing indemnification shall survive the
termination of this Lease for any reason.
29. ASSIGNMENT AND SUBLEASING.
(a) Tenant may not assign, mortgage, pledge, encumber or otherwise
transfer this Lease, or any interest hereunder, or sublet the Demised Premises,
in whole or in part, without on each occasion first obtaining the prior express
written consent of Landlord, which consent Landlord shall not unreasonably
withhold, delay or condition. Any change in control of Tenant resulting from a
merger, consolidation, stock transfer or asset sale shall be considered an
assignment or transfer which requires Landlord's prior written consent. For
purposes of this Section 29, by way of example and not limitation, Landlord
shall be deemed to have reasonably withheld consent if Landlord reasonably
determines (i) that there is a reasonable chance that the prospective assignee
does not have the financial strength to fulfill the obligations of the Lease,
(ii) that the prospective assignee or subtenant has a poor business reputation,
(iii) that the proposed use of the Demised Premises by such prospective assignee
or subtenant (including, without limitation, a use involving the use or handling
of Hazardous Substances) will negatively affect the value or marketability of
the Building or the Project or (iv) that the prospective assignee or subtenant
is a current tenant in the Project or is a bona-fide third-party prospective
tenant.
(b) If Tenant desires to assign this Lease or sublet the Demised
Premises or any part thereof, Tenant shall give Landlord written notice no later
than thirty (30) days in advance of the proposed effective date of any proposed
assignment or sublease, specifying (i) the name and business of the proposed
assignee or sublessee, (ii) the amount and location of the space within the
Demised Premises proposed to be subleased, (iii) the proposed effective date and
duration of the assignment or subletting and (iv) the proposed rent or
consideration to be paid to Tenant by such assignee or sublessee. Tenant shall
promptly supply Landlord with financial statements and other information as
Landlord may reasonably request to evaluate the proposed assignment or sublease.
Landlord shall have a period of twenty one (21) days following receipt of such
notice and other information requested by Landlord within which to notify Tenant
in writing that Landlord elects: (i) to permit Tenant to assign or sublet such
space; PROVIDED, HOWEVER, that, if the rent rate agreed upon between Tenant and
its proposed subtenant is greater than the rent rate that Tenant must pay
Landlord hereunder for that portion of the Demised Premises, or if any
consideration shall be promised to or received by Tenant in connection with such
proposed assignment or sublease (in addition to rent), then one half (1/2) of
such excess rent and other consideration (other than goodwill) (after payment of
brokerage commissions, attorneys' fees, improvements and other disbursements
reasonably incurred by Tenant for such assignment and subletting if acceptable
evidence of such disbursements is delivered to Landlord) shall be considered
Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to
Landlord, in the case of excess rent, in the same manner that Tenant pays Base
Rent and, in the case of any other consideration, within ten (10) business days
after receipt thereof by Tenant; or (ii) to refuse, in Landlord's reasonable
discretion (taking into account all relevant reasonable factors including,
without limitation, the factors set forth in the Section 29(a) above), to
consent to Tenant's assignment or subleasing of such space and to continue this
Lease in full force and effect as to the entire Demised Premises. If (1)
Landlord fails to notify Tenant in writing of such election within the aforesaid
thirty (30) day period, and (2) after the expiration of said thirty (30) day
period, Tenant notifies Landlord in writing of said failure and, within five (5)
business days after receipt of Tenant's notice, Landlord fails to notify Tenant
in writing of Landlord's election, then Landlord shall be deemed to have elected
option (i) above. Tenant agrees to reimburse Landlord for reasonable and actual
legal fees (not to exceed $1,000.00 for each such transfer) and any other
reasonable costs incurred by Landlord in connection with any requested
assignment or subletting, and such payments shall not be deducted from the
Additional Rent owed to Landlord pursuant to subsection (ii) above. Tenant shall
deliver to Landlord copies of all documents executed in connection with any
permitted assignment or subletting, which documents shall be in form and
substance reasonably satisfactory to Landlord and which shall require such
assignee to assume performance of all terms of this Lease on Tenant's part to be
performed.
(c) No acceptance by Landlord of any rent or any other sum of money
from any assignee, sublessee or other category of transferee shall be deemed to
constitute Landlord's consent to any assignment, sublease, or transfer.
Permitted subtenants or assignees shall become liable directly to Landlord for
all obligations of Tenant hereunder, without, however, relieving Tenant of any
of its liability hereunder. No such assignment, subletting, occupancy or
collection shall be deemed the acceptance of the assignee, tenant or occupant,
as Tenant, or a release of Tenant from the further performance by Tenant of
Tenant's obligations under this Lease. Any assignment or sublease consented to
by Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord's
consent to any subsequent assignment or sublease.
-17-
(d) Notwithstanding anything to the contrary contained in this
Lease, Tenant may assign this Lease or sublet all or any portion of the Demised
Premises from time to time, without Landlord's consent, to any entity
controlling, controlled by or under common control with Tenant, or to any
successor of Tenant resulting from a merger or consolidation of Tenant, or as a
result of a sale by Tenant of all or substantially all of its assets or stock,
provided that no such transfer shall relieve Tenant from any liability under
this Lease, whether accrued to the date of such transfer or thereafter accruing.
In addition, any change in the controlling interest in the stock of Tenant as a
result of an initial public offering of Tenant's stock, and any transfer of the
capital stock of Tenant by persons or parties through the "over-the-counter
market" or through any recognized stock exchange, shall not be deemed to be a
transfer requiring Landlord's consent.
30. TERMINATION OR EXPIRATION.
(a) No termination of this Lease prior to the normal ending
thereof, by lapse of time or otherwise, shall affect Landlord's right to collect
rent for the period prior to termination thereof.
(b) At the expiration or earlier termination of the Term of this
Lease, Tenant shall surrender the Demised Premises and all improvements,
alterations and additions thereto, and keys therefor to Landlord, clean and
neat, and in the same condition as at the Lease Commencement Date, excepting
normal wear and tear, condemnation and casualty other than that required to be
insured against by Tenant hereunder.
(c) If Tenant remains in possession of the Demised Premises after
expiration of the Term, with or without Landlord's acquiescence and without any
express agreement of the parties, Tenant shall be a tenant-at-sufferance at one
hundred fifty percent (150%) of the Base Rent in effect at the end of the Term.
Tenant shall also continue to pay all other Additional Rent due hereunder, and
there shall be no renewal of this Lease by operation of law. In addition to the
foregoing, Tenant shall be liable for all damages, direct and consequential,
incurred by Landlord as a result of such holdover; provided, however, that in
order for Landlord to recover consequential damages resulting from the loss of a
replacement tenant for the Demised Premises, Landlord must notify Tenant that
Landlord has entered into negotiations with a bona fide replacement tenant for
all or a part of the Demised Premises and Tenant must not have vacated the
Demised Premises as required by this Lease by the later of (i) the Expiration
Date and (ii) thirty (30) days after receipt of Landlord's notice. No receipt of
money by Landlord from Tenant after the termination of this Lease or Tenant's
right of possession of the Demised Premises shall reinstate, continue or extend
the Term or Tenant's right of possession.
31. RESERVED.
32. LATE PAYMENTS. In the event any installment of rent, inclusive of
Base Rent, or Additional Rent or other sums due hereunder, if any, is not paid
(i) within five (5) days after Tenant's receipt of written notice of such
failure to pay on the first two (2) occasions during any twelve (12) month
period, or (ii) within five (5) days after the due date (exclusive of any cure
periods or notice requirements) with respect to any subsequent late payments in
any twelve (12) month period, Tenant shall pay an administrative fee equal to
$500.00, plus interest on the amount past due at the lesser of (i) the maximum
interest rate allowed by law or (ii) a rate of fifteen percent (15%) per annum
(the "Interest Rate") to defray the additional expenses incurred by Landlord in
processing such payment.
33. RULES AND REGULATIONS. Tenant agrees to abide by the rules and
regulations set forth on EXHIBIT D attached hereto, as well as other rules and
regulations reasonably promulgated by Landlord from time to time.
34. QUIET ENJOYMENT. So long as Tenant has not committed an Event of
Default hereunder, Landlord agrees that Tenant shall have the right to quietly
use and enjoy the Demised Premises for the Term.
35. MISCELLANEOUS.
(a) The parties hereto hereby covenant and agree that Landlord
shall receive the Base Rent, Additional Rent and all other sums payable by
Tenant hereinabove provided as net income from the Demised Premises, without any
abatement (except as set forth in Section 20 and Section 21), reduction,
set-off, counterclaim, defense or deduction whatsoever, except as otherwise
expressly set forth in this Lease.
(b) If any clause or provision of this Lease is determined to be
illegal, invalid or unenforceable under present or future laws effective during
the Term, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and that in lieu of
such illegal, invalid or unenforceable clause or provision there shall be
substituted a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
-18-
(c) All rights, powers, and privileges conferred hereunder upon the
parties hereto shall be cumulative, but not restrictive to those given by law.
(d) Time is of the essence of this Lease.
(e) No failure of Landlord or Tenant to exercise any power given
Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or
Tenant with its obligations hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Landlord's or
Tenant's rights to demand exact compliance with the terms hereof.
(f) This Lease contains the entire agreement of the parties hereto
as to the subject matter of this Lease and no representations, inducements,
promises or agreements, oral or otherwise, between the parties not embodied
herein shall be of any force and effect. The masculine (or neuter) pronoun,
singular number shall include the masculine, feminine and neuter gender and the
singular and plural number.
(g) This contract shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord; Tenant
has a usufruct, not subject to levy and sale, and not assignable by Tenant
except as expressly set forth herein.
(h) Under no circumstances shall Tenant or Landlord have the right
to record this Lease. Either party may require the other to execute a memorandum
of this Lease in recordable form as attached hereto as EXHIBIT B, and such party
may, at its expense, record such memorandum in the Public Records of Broward
County, Florida.
(i) The captions of this Lease are for convenience only and are not
a part of this Lease, and do not in any way define, limit, describe or amplify
the terms or provisions of this Lease or the scope or intent thereof.
(j) This Lease may be executed in multiple counterparts, each of
which shall constitute an original, but all of which taken together shall
constitute one and the same agreement.
(k) This Lease shall be interpreted under the laws of the State
where the Demised Premises are located.
(l) The parties acknowledge that this Lease is the result of
negotiations between the parties, and in construing any ambiguity hereunder no
presumption shall be made in favor of either party. No inference shall be made
from any item which has been stricken from this Lease other than the deletion of
such item.
36. SPECIAL STIPULATIONS. The Special Stipulations, if any, attached
hereto as EXHIBIT C, are incorporated herein and made a part hereof, and to the
extent of any conflict between the foregoing provisions and the Special
Stipulations, the Special Stipulations shall govern and control.
37. LEASE DATE. For purposes of this Lease, the term "Lease Date" shall
mean the later date upon which this Lease is signed by Landlord and Tenant.
38. AUTHORITY. Landlord and Tenant shall each cause its corporate
secretary to execute the certificate attached hereto as EXHIBITS E-1 AND E-2.
Landlord and Tenant are authorized by all required corporate action to enter
into this Lease and the individual(s) signing this Lease on behalf of Landlord
and Tenant are each authorized to bind Landlord and Tenant to its terms.
39. NO OFFER UNTIL EXECUTED. The submission of this Lease to Tenant for
examination or consideration does not constitute an offer to lease the Demised
Premises and this Lease shall become effective, if at all, only upon the
execution and delivery thereof by Landlord and Tenant.
40. RADON DISCLOSURE. Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities may present
health risks to persons who are exposed to it over a period of time. Levels of
radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
-19-
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
under seals, the day and year first above written.
LANDLORD:
Date: 9/23/98
Industrial PROPERTY FUND II, L.P.,
a Georgia limited partnership
By: XXX-XX XX, Inc.,
a Georgia corporation,
its sole general partner
/s/ XXXXXXXX XXXXXX
----------------------------------------
Witness (print name): Xxxxxxxx Xxxxxx
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXXX X. XXXXXX
Title: SECRETARY
/s/ XXXXX XXXXXXXXX
----------------------------------------
Witness (print name): Xxxxx Xxxxxxxxx
/s/ XXXXXXXX XXXXXX Attest: /s/ XXXXXXX X. XXXX
---------------------------------------- ---------------------------------
Witness (print name):Xxxxxxxx Xxxxxx Name: XXXXXXX X. XXXX
Title: ASSISTANT SECRETARY
/s/ XXXXX XXXXXXXXX [CORPORATE SEAL]
----------------------------------------
Witness (print name): Xxxxx Xxxxxxxxx
TENANT:
Date: 9/18/98
ANDA GENERICS, INC.,
a Florida corporation
/s/ XXXXX XXXXXXXX By: /s/ XXXXX XXXXX
---------------------------------------- ------------------------------------
Witness (print name): Xxxxx Xxxxxxxx Name: Xxxxx Xxxxx
Title: Vice President &
General Counsel
/s/ [ILLEGIBLE]
--------------------------------
Witness (print name): __________________
/s/ XXXXX XXXXXXXX Attest: /s/ XXXXXX X. [ILLEGIBLE]
---------------------------------------- ---------------------------------
Witness (print name):Xxxxx Xxxxxxxx Name: Xxxxxx X. [Illegible]
Title: V.P. & C.F.O.
/s/ XXXXXXX X. LICHTEE [CORPORATE SEAL]
----------------------------------------
Witness (print name): Xxxxxxx X. Lichtee
-20-
ATTESTATION
LANDLORD - PARTNERSHIP:
STATE OF Georgia
COUNTY OF Xxxxxx
BEFORE ME, a Notary Public in and for said County, personally appeared
Xxxxxxx X. Xxxxxx and Xxxx X. Xxxx, known to me to be the person(s) who, as
Secretary and Asst. Secretary of XXX-XX XX, Inc., a Georgia corporation, its
sole general partner, the corporation which executed the foregoing instrument in
its capacity as general partner of Tenant, signed the same, and acknowledged to
me that they did so sign said instrument in the name and upon behalf of said
partnership, that the same is their free act and deed and they were duly
authorized thereunto by the partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed
my official seal, this 23 day of September, 1998 .
/s/ XXXXXXXXX XXXXXXXX
----------------------------------------
Notary Public
My Commission Expires: 10-06-01
TENANT - CORPORATION:
STATE OF Florida
COUNTY OF Broward
BEFORE ME, a Notary Public in and for said County, personally appeared
Xxxxxx X. [Illegible] and Xxxxx Xxxxx, known to me to be the person(s) who, as
Vice President and CFO and V.P./General Counsel, respectively, of Anda Generics,
Inc., the corporation which executed the foregoing instrument in its capacity as
Tenant, signed the same, and acknowledged to me that they did so sign said
instrument in the name and upon behalf of said corporation as officers of said
corporation, that the same is their free act and deed as such officers,
respectively, and they were duly authorized thereunto by its board of directors;
and that the seal affixed to said instrument is the corporate seal of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed
my official seal, this 18 day of September, 1998 .
/s/ XXXXXXX X. XXXXXXX
----------------------------------------
Notary Public
My Commission Expires: 3/14/00
-21-
EXHIBIT A
FLOOR PLAN
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
BUILDING SHELL CRITERIA
WESTON BUSINESS CENTER
BUILDING 'A'
EXHIBIT "B"
XXXX XXXXXX-XXXXX
CONSULTING ENGINEERS, INC.
MEMORANDUM
EXHIBIT C
SPECIAL STIPULATIONS
The Special Stipulations set forth herein are hereby incorporated into
the body of the lease to which these Special Stipulations are attached (the
"Lease"), and to the extent of any conflict between these Special Stipulations
and the Lease, these Special Stipulations shall govern and control.
1. SECURITY DEPOSIT. Upon Tenant's execution of this Lease, Tenant will
deliver to Landlord an Irrevocable Letter of Credit in the amount of
$1,000,000.00 as additional security for the full and faithful performance by
Tenant of each and every term, covenant and condition of this Lease, in a form
attached hereto as EXHIBIT F and from a financial institution acceptable to
Landlord. The Letter of Credit shall dissolve and be returned to Tenant or the
issuing institution upon satisfaction of the following conditions: (a) Guarantor
shall have either (i) positive net income from operations in accordance with
GAAP and reported on Guarantor's Form 10-Q and/or Form 10-K filed with the SEC
for six (6) consecutive fiscal quarters from and after the Lease Commencement
Date or (ii) positive net income from operations in accordance with GAAP and
reported on Guarantor's Form 10-K filed with the SEC for two consecutive fiscal
years from and after the Lease Commencement Date, (b) Tenant shall have
deposited with Landlord in cash (or delivered to Landlord a Letter of Credit
acceptable to Landlord), an amount equal to one month's Base Rent as security
deposit, which cash deposit shall be governed by Section 5 of the Lease and (c)
Guarantor shall have a Tangible Net Worth of at least $50 million. For purposes
herein, "Tangible Net Worth" is defined as the excess of the value of tangible
assets (i.e. assets excluding those which are intangible such as goodwill,
patents and trademarks) over liabilities.
2. OPERATING EXPENSES.
(a) Notwithstanding anything to the contrary contained in Section
6, in addition to the exclusions described in Section 6, the following costs and
expenses shall be excluded from Operating Expenses:
(1) expenses relating to the leasing of space in the Project
(including tenant improvements and painting, decorating, Landlord construction
allowances or contributions, leasing commissions, rental concessions, and
advertising expenses incurred in connection with the listing of available space
in the Project);
(2) legal fees and disbursements incurred for negotiation of
leases or enforcement of leases;
(3) the cost of utilities in the Project to the extent paid for
directly by tenants;
(4) expenditures for financing and refinancing and for mortgage
debt service or any other cost incurred in respect of any mortgage or other
financing of the Building or Project;
(5) depreciation of the Building or Project and amortization;
(6) franchise, transfer, gains, inheritance, estate, mortgage
recording, and income taxes imposed upon Landlord;
(7) salaries or fringe benefits of personnel above the grade of
building manager;
(8) capital improvements or replacement of capital items except
as otherwise expressly permitted in the Lease;
(9) costs for which Landlord receives a credit against any
payment due from Landlord to Tenant or any third party costs and expenses
otherwise includible in Operating Expenses, to the extent that Landlord is
reimbursed from other sources for such costs and expenses;
(10) rent and additional rent payable under a ground lease or
any other superior lease affecting the Building or Project;
(11) costs for which Landlord is actually compensated by
insurance proceeds related to a specific Operating Expense item, exclusive of
deductibles and costs of collection;
(12) costs incurred in connection with a sale of all or a
portion of the Building or Project or the sale or transfer of any beneficial
ownership interest in and to the Landlord and/or the Building or Project or the
grant of a ground lease or any other superior lease affecting the Building or
Project;
c-1
(13) any fee or expenditure paid to a related party in excess
of the amount which would be paid in an arm's length transaction for materials
or services of comparable quality (but only to the extent of such excess);
(14) all costs or expenses (including fines, penalties and
legal fees) incurred due to any violation by Landlord, its employees, agents or
contractors, or any tenant or other occupant of the Project or noncompliance of
the Building or Project with, the terms and conditions of any lease or other
occupancy agreement pertaining to the Project, or any applicable code,
governmental rule, regulation or law;
(15) salaries or fringe benefits of personnel not employed
exclusively at the Project, to the extent such salaries and benefits relate to
work performed outside the Project, as determined on a pro rata basis;
(16) any expense fully reimbursed to Landlord by Tenant or any
other tenant of the Project, or any expense billed to and paid directly by same
for their own account or on Landlord's behalf;
(17) advertising and promotional expenditures, and costs of
signs in or at the Project identifying the Project, Landlord or any tenant of
the Project;
(18) any bad debt loss, rent loss, or reserves for bad debts or
rent loss;
(19) costs incurred by Landlord for repairs or replacements to
the extent that Landlord is reimbursed under warranties or guarantees;
(20) expenses resulting from the gross negligence or willful
misconduct of Landlord or its agents, employees or contractors; and
(21) all costs of correcting defects, including any allowances
for same, in the construction of the Building (including latent defects) or the
Building equipment (or the replacement of defective equipment).
(b) For the purpose of determining Tenant's pro rata share of
Operating Expenses, Tenant's share of property management fees for the Building
shall not exceed three percent (3.0%) per year of the Annual Base Rent and
annual Additional Rent due under the Lease.
3. Intentionally Omitted.
4. OPERATING EXPENSES.
(a) CONTESTING OF TAXES. If Landlord does not elect to contest real
estate taxes applicable to the Building and the Building Common Area for a
particular tax period during the Term, Tenant may request that Landlord contest
such taxes by written notice to Landlord given, if at all, within sixty (60)
days following Tenant's receipt of the statement required to be delivered by
Landlord pursuant to Section 6(a) of the Lease covering the tax period in
question. Landlord may then elect either to contest such taxes or to allow
Tenant to so contest such taxes subject to Landlord's reasonable approval of the
firm or individual hired to conduct such contest. In either case, Tenant shall
be responsible for all costs of contesting such taxes to the extent that said
costs exceed the savings realized by such contest. Any resulting savings over
and above the cost of such contest shall be distributed on a prorata basis
between Landlord, Tenant and the other tenants of the Building that contributed
toward payment of the applicable tax xxxx.
(b) OPERATING EXPENSES - CAP ON CONTROLLABLE EXPENSES. In the event
that the amount of Operating Expenses attributable to all items OTHER THAN
taxes, utilities, insurance and charges assessed against or attributed to the
Building pursuant to any applicable declaration of protective covenants
(Operating Expenses attributable to all such other items being referred to
collectively herein as "Controllable Expenses") in any calendar year exceeds the
amount attributable to Controllable Expenses during the immediately preceding
calendar year by more than eight (8%) (the "Cap"), after making adjustments for
any changes in the size of the Demised Premises due to expansions or
contractions, then the amount attributable to Controllable Expenses, for
purposes of determining the amount of Tenant's proportionate share of Operating
Expenses, shall be limited to the amount included in Tenant's proportionate
share of Operating Expenses during the immediately preceding calendar year
multiplied by the sum of one hundred percent (100%) and the Cap.
(c) AUDIT RIGHTS. During the Term or any extension thereof, but not
more than one (1) time per year, Tenant shall have the right to cause Landlord's
books and records with respect to Operating Expenses to be audited by an
independent certified public accountant or a lease auditing firm of Tenant's
choosing and reasonably acceptable to Landlord. Landlord shall cause such books
and records to be made available for such inspection during such normal business
hours and at such location where Landlord regularly keeps its books and records,
upon ten (10) days' prior notification to Landlord. Such audit shall be done in
accordance with generally accepted accounting principles, consistently applied.
If,
c-2
at the conclusion of such audit, Tenant's audit of such expenses for the
preceding year indicates that Tenant made an overpayment to Landlord for such
preceding year, Landlord shall remit the amount of such overpayment to Tenant
within thirty (30) days after receipt of notice from Tenant of the amount of
such overpayment in no Event of Default is then continuing. Should Landlord
disagree with the results of Tenant's audit, Landlord and Tenant shall refer the
matter to a mutually acceptable independent certified public accountant, who
shall work in good faith with Landlord and Tenant to resolve the discrepancy.
The fees and costs of such independent accountant to which such dispute is
referred shall be borne by the unsuccessful party and shall be shared pro rata
to the extent each party is unsuccessful as determined by such independent
certified public account, whose decision shall be final and binding. Landlord
shall pay the cost of Tenant's initial audit if Tenant's overpayment of such
expenses exceeded seven and one-half percent (7.5%) or more of the payment that
should properly have been made.
All of the information obtained through Tenant's inspection with
respect to financial matters (including, without limitation, costs, expenses,
income) and any other matters pertaining to Landlord, the Demised Premises, the
Building and/or the Project as well as any compromise, settlement, or adjustment
reached between Landlord and Tenant relative to the results of the inspection
shall be held in strict confidence by Tenant and its officers, agents, and
employees; and Tenant shall use its best efforts to cause its independent
professionals and any of its officers, agents or employees to be similarly
bound.
5. LANDLORD INSURANCE.
(a) Landlord shall maintain at all times during the Term of this
Lease, with such deductible as Landlord in its sole judgment determines
advisable, insurance on the "All-Risk" or equivalent form on a Replacement Cost
Basis against loss or damage to the Building. Such insurance shall be in the
amount of 100% of the replacement value of the Building (excluding all fixtures
and property required to be insured by Tenant under this Lease).
(b) Landlord shall maintain at all times during the Term commercial
liability insurance with limits at least equal to the amount as Tenant is
required to maintain pursuant to Section 8(a)(i) of this Lease.
6. LANDLORD INDEMNITY. Except for the negligence or willful misconduct
of Tenant, its agents, employees or contractors, Landlord will indemnify and
hold harmless Tenant of and from, all fines, suits, damages, claims, demands,
losses, actions, liabilities and expenses (including reasonable attorneys' fees
at all tribunal levels), for any injury to person or damage to or loss of
property on or about the Demised Premises and Building caused by the negligence
or willful misconduct of Landlord, its agents, employees or contractors.
7. COMPLIANCE WITH LAWS.
(a) BUILDING COMPLIANCE WITH LAWS. Landlord covenants to Tenant
that the design and construction of the Building shall materially comply with
all applicable federal, state, county and municipal laws, ordinances and codes
in effect as of the Lease Commencement Date, excepting therefrom any
requirements related to Tenant's specific use of the Demised Premises. If
Landlord or Tenant receives a notice of violation of any such federal, state and
local laws, ordinances, rules and regulations as in effect as of the Lease
Commencement Date (other than as a result of the negligence or willful
misconduct of Tenant or its agents, employees or contractors), then the work
required to bring the applicable item into compliance with such federal, state
and local laws, ordinances, rules and regulations as in effect as of the Lease
Commencement Date will be performed by Landlord, at its expense (and shall not
be included in Operating Expenses). Landlord agrees to indemnify and hold
harmless Tenant from and against any claims, liabilities, costs, fines, damages
and expenses (including reasonable attorneys' fees and costs at all tribunal
levels) (but excluding consequential damages) arising from Landlord's failure to
comply with the foregoing covenant.
(b) LANDLORD'S AND TENANT'S COMPLIANCE WITH ADA. Subject to the
last sentence hereof, Landlord, at its sole cost and expense, shall be
responsible for causing the Building to comply with Title III of the Americans
With Disabilities Act of 1990 (the "ADA"), or the regulations promulgated
thereunder, as said Title III is in effect and pertains to the general public as
of the Lease Commencement Date. During the Term, Tenant hereby agrees that it
shall be responsible, at its sole cost and expense, for (a) causing the
Building, the Building common Area and the Demised Premises to comply with Title
III of the ADA as a result of (i) any special requirements of the ADA relating
to accommodations for individual employees, invitees and/or guests of Tenant and
(ii) any alterations made to the Demised Premises by Tenant, and (b) complying
with all obligations of Tenant under Title I of the ADA.
8. INSTALLATION OF SATELLITE DISH. Tenant shall have the right to
install up to three (3) satellite dishes (collectively, the "Dish") on the roof
of the Building subject to the following:
(a) The installation, maintenance and removal shall be at Tenant's
sole cost and expense, including, but not limited to, the reasonable costs for
Landlord's roofing contractor to inspect and oversee said installation,
maintenance and removal.
c-3
(b) The installation and location shall be in compliance with all
applicable governmental regulations, laws and ordinances. Prior to installation,
Tenant shall provide Landlord with satisfactory evidence of compliance with law.
(c) The radius of the Dish shall be no greater than six (6) feet.
(d) The installation shall require Landlord's prior written
approval of installation plans, which approval shall not be unreasonably
withheld or delayed.
(e) Tenant hereby indemnifies Landlord against all costs, losses,
damages, fines, attorney and contractor fees and other expenses and fees
incurred by Landlord as a result of Tenant's installation, maintenance and
removal of the Dish, including, but not limited to, the loss of Landlord's roof
warranty as a result of Tenant's, or its agents, employees or contractors, acts
or omissions. This indemnity shall survive the expiration or earlier termination
of this Lease.
(f) The installation, maintenance and removal shall be completed
lien free, or, in the alternative, Tenant shall bond over any such lien.
(g) The plans for installation shall receive the prior written
approval of Landlord's roofing contractor, which approval must explicitly
confirm that the roof warranty shall not be affected in any way by said
installation and maintenance.
(h) The Dish shall be located at least fifty feet from all sides of
the Building.
(i) Tenant's access to the roof shall be provided by Landlord's
property management personnel, which personnel shall have the right to accompany
Tenant onto the roof.
9. PARKING. The Tenant shall have the exclusive use of the entire
parking area for the Building, which shall provide no less than three hundred
seventy five (375) automobile parking spaces as shown on EXHIBIT A. The parking
area shall be constructed by Landlord at its expense as part of Landlord's
obligation to achieve substantial completion of the Demised Premises in
accordance with Plans and Specifications, and in accordance with all applicable
laws, codes and ordinances.
10. OPTION TO EXTEND TERM.
(a) Landlord hereby grants to Tenant two (2) consecutive options to
extend the Term for a period of five (5) years each time, each option to be
exercised by Tenant giving written notice of its exercise to Landlord in the
manner provided in this Lease at least two hundred forty (240) days prior to
(but not more than three hundred sixty (360) days prior to) the expiration of
the Term, as it may have been previously extended. No extension option may be
exercised by Tenant if an Event of Default has occurred and is then continuing
either at the time of exercise of the option or at the time the applicable Term
would otherwise have expired if the applicable option had not been exercised.
(b) For the first extension option, the Base Rent shall be based on
95% of the Prevailing Market Rate for such space. For the second extension
option, the Base Rent shall be based on the Prevailing Market Rate for such
space. If Tenant exercises its option[s] to extend the Term, Landlord shall,
within thirty (30) days after the receipt of Tenant's notice of exercise, notify
Tenant in writing of Landlord's reasonable determination of the Base Rent for
the Demised Premises, based on Landlord's reasonable determination of the
Prevailing Market Rate as defined below. Tenant shall have thirty (30) days from
its receipt of Landlord's notice of Landlord's determination of the Base Rent to
notify Landlord in writing that Tenant does not agree with Landlord's
determination. Tenant shall then elect either (i) to determine the Prevailing
Market Rate (as defined and calculated below) or (ii) to retract its option to
extend the Term, in which case the Term, as it may have been previously
extended, shall expire on its scheduled expiration date and Tenant's option to
extend the Term shall be void and of no further force and effect. If Tenant does
not notify Landlord of such election within thirty (30) days of its receipt of
Landlord's notice, Base Rent for the Demised Premises for the applicable
extended term shall be the Base Rent set forth in Landlord's notice to Tenant.
The phrase "Prevailing Market Rate" shall mean the then prevailing market rate
for base minimum rental calculated on a per square foot basis for leases
covering buildings comparable to the Building (as adjusted for any variances
between such buildings and the Building) located in the area of West Broward
County (hereinafter referred to as the "Market Area"). The Prevailing Market
Rate shall be determined by an appraisal procedure as follows:
In the event that Tenant notifies Landlord that Tenant disagrees
with Landlord's determination of the market rate and that Tenant
elects to determine the Prevailing Market Rate, then Tenant shall
specify, in such notice to Landlord, Tenant's selection of a real
estate appraiser who shall act on Tenant's behalf in determining
the Prevailing Market Rate. Within twenty (20) days after
Landlord's receipt of Tenant's selection of a real estate
appraiser, Landlord, by written notice to Tenant, shall designate a
real estate appraiser, who shall act on Landlord's behalf in the
determination of the Prevailing Market Rate. Within twenty (20)
days of the selection of Landlord's appraiser, the two (2)
appraisers shall render a joint written determination of the
Prevailing Market Rate, which determination shall take into
consideration any differences between the Building and those
buildings comparable to the Building located in the Market Area,
including
c-4
without limitation age, location, setting and type of building. If
the two (2) appraisers are unable to agree upon a joint written
determination within said twenty (20) day period, the two
appraisers shall select a third appraiser within such twenty (20)
day period. Within twenty (20) days after the appointment of the
third appraiser, the third appraiser shall render a written
determination of the Prevailing Market Rate and such determination
shall be final, conclusive and binding. All appraisers selected in
accordance with this subparagraph shall have at least ten (10)
years prior experience in the commercial leasing market of the
Market Area and shall be members of the American Institute of Real
Estate Appraisers or similar professional organization. If either
Landlord or Tenant fails or refuses to select an appraiser, the
other appraiser shall alone determine the Prevailing Market Rate.
Landlord and Tenant agree that they shall be bound by the
determination of Prevailing Market Rate pursuant to this paragraph.
Landlord shall bear the fee and expenses of its appraiser; Tenant
shall bear the fee and expenses of its appraiser; and Landlord and
Tenant shall share equally the fee and expenses of the third
appraiser, if any.
(c) Except for the Base Rent, which shall be determined as set
forth in subparagraph (b) above, leasing of the Demised Premises by Tenant for
the applicable extended term shall be subject to all of the same terms and
conditions set forth in this Lease, including Tenant's obligation to pay
Tenant's share of Operating Expenses as provided in this Lease; provided,
however, that any improvement allowances, rent abatements or other concessions
applicable to the Demised Premises during the initial Term shall not be
applicable during any such extended term, nor shall Tenant have any additional
extension options unless expressly provided for in this Lease. Landlord and
Tenant shall enter into an amendment to this Lease to evidence Tenant's exercise
of its renewal option. If this Lease is guaranteed, it shall be a condition of
Landlord's granting the renewal that Tenant deliver to Landlord a reaffirmation
of the guaranty in which the guarantor acknowledges Tenant's exercise of its
renewal option and reaffirms that the guaranty is in full force and effect and
applies to said renewal.
11. RIGHT OF FIRST OFFER. So long as the Lease is in full force and
effect and no Event of Default has occurred and is then continuing, Landlord
hereby grants to Tenant a right of first offer (the "Right of First Offer") to
expand the Demised Premises to include space within proposed Building E of the
Project as shown on EXHIBIT G attached hereto which is currently contemplated to
be constructed by Landlord (the "Offer Space"), but only if Landlord (or an
entity controlling or controlled by Landlord (collectively, "Landlord's
Affiliate")) owns Building E (Landlord and Landlord's Affiliate having no
obligation, express or implied, to do so, and if Landlord or Landlord's
Affiliate does build Building E, Landlord and Landlord's Affiliate reserve the
right to change the configuration and size thereof) and only if and for so long
as Landlord or Landlord's Affiliate shall own Building E once constructed,
subject to the terms and conditions set forth herein.
(a) Reserved
(b) The term of the Right of First Offer shall commence on the
Lease Date and shall expire thirty-six (36) months thereafter, unless the Right
of First Offer is sooner terminated pursuant to the terms hereof.
(c) Subject to the other terms of this Right of First Offer, after
any part of the Offer Space has or will "become available" (as defined herein)
for leasing by Landlord, Landlord shall not, during the applicable term of the
Right of First Offer, lease to another tenant any portion of the Offer Space
which is greater than twenty-five percent (25%) of the total square footage of
Building E without first offering Tenant the right to lease the portion of the
Offer Space so offered to said other tenant as set forth herein.
(i) Space shall be deemed to "become available" when Landlord
desires to lease all or a portion of the Offer Space to a bona fide third party
that has manifested an intention to lease all or a portion of the Offer Space.
(ii) Notwithstanding subsection c(i) above, Offer Space shall
not be deemed to "become available" if the space is leased on a temporary basis
for a period of less than twelve (12) months without any right to extend.
(d) Consistent with subsection (c), Landlord shall not lease to
another tenant all or any portion of the Offer Space which is greater than
twenty-five percent (25%) of the total square footage of Building E unless and
until Landlord has first offered such portion of the Offer Space to Tenant in
writing (the "Offer"). The Offer shall contain (i) a description of the Offer
Space (which description shall include the square footage amount); (ii) the date
on which Landlord expects the Offer Space to become available and (iii) the Base
Rent and all other business terms and conditions (including, without limitation,
length of term and improvement allowance, if any) for the Offer Space. Upon
receipt of the Offer, Tenant shall have the right, for a period of five (5)
calendar days after receipt of the Offer, to exercise the Right of First Offer
by giving Landlord written notice that Tenant desires to lease the Offer Space
at the Base Rent and upon such other special terms and conditions as are
contained in the Offer.
(e) If, within such five (5)-day period, Tenant exercises the Right
of First Offer, then Landlord and Tenant shall amend the Lease (or execute a
separate lease) to include the Offer Space subject to the same terms and
conditions as the Lease, as modified by the terms and conditions of the
c-5
Offer. If the Lease is guaranteed now or at anytime in the future, Tenant
simultaneously shall deliver to Landlord an original, signed, and notarized
reaffirmation of each Guarantor's personal guaranty, in form and substance
reasonably acceptable to Landlord.
(f) If, within such five (5)-day period, Tenant declines or fails
to exercise the Right of First Offer, Landlord shall then have the right to
lease the Offer Space in portions or in its entirety to a third party, unrelated
to and unaffiliated with Landlord, at any time within six (6) months without
regard to the restrictions in this Right of First Offer and on whatever terms
and conditions Landlord may decide in its sole discretion, provided the Base
Rent, Additional Rent, Tenant Allowance, and any rent concessions applicable to
the Offer Space are not substantially more favorable to such tenant than those
set forth in the Offer, without again complying with all the provisions of this
Right of First Offer.
(g) If Landlord does lease all or any portion of the Offer Space to
such a third party within said six (6) months after complying with the terms and
conditions of this Right of First Offer, then the Right of First Offer shall
terminate, and Tenant shall have no further Right of First Offer on the portion
of the Offer Space so leased to said third party.
(h) If Landlord desires to lease the Offer Space at a base rent per
square foot that is substantially less than the base rent per square foot set
forth in the Offer, or if Landlord desires to materially alter or modify the
material terms and conditions of the Offer, if any, Landlord shall be required
to present the altered or modified Offer to Tenant pursuant to this Right of
First Offer, in the same manner that the original Offer was submitted to Tenant.
12. CONSTRUCTION OF DEMISED PREMISES.
(a) Notwithstanding the provisions of Section 17 of this Lease,
Landlord shall be responsible for the cost of the construction of the
Improvements (as defined in Section 8(a)(ii) of the Lease) only up to an amount
equal to $1,635,410.00 (the "Tenant Allowance"). Upon substantial completion of
the Improvements, Landlord shall deliver to Tenant a xxxx for all amounts in
excess of the Tenant Allowance. Tenant agrees to pay such xxxx in full to
Landlord within thirty (30) calendar days following receipt of such xxxx.
(b) For purposes of this Special Stipulation, the cost of the
construction of the Improvements shall be deemed to include, but not be limited
to, the cost of the Plans and Specifications, permits and all tenant buildout,
including, without limitation, demising walls, utilities, the heating,
ventilating and air conditioning system and lighting.
(c) Upon substantial completion of the Improvements and Tenant's
payment of all amounts due and owing, at Landlord's request, the parties shall
restate the Lease and delete this Special Stipulation 12 in its entirety.
13. ENVIRONMENTAL MATTERS - HAZARDOUS MATERIALS MANAGEMENT PLAN.
(a) The term "Environmental Laws", as defined in Section 16 of the
Lease shall be deemed to include that certain Hazardous Materials Management
Plan for Weston Park of Commerce, prepared by Xxxxxxx Engineering Inc., dated
August 1989 attached hereto as EXHIBIT J and incorporated herein (the "Plan").
(b) As of the Lease Date, Tenant believes that Tenant's use of the
Demised Premises would involve the use, storage or generation of hazardous
materials as described in the Plan. If, as of the Lease Date or at any time
during the Term, Tenant's use of the Demised Premises involves the use, storage
or generation of hazardous materials as described in the Plan, Tenant shall, at
Tenant's sole cost and expense, (i) within ten (10) days thereafter, designate a
Facility Safety Officer (as described in the Plan) and notify Landlord of the
name and address of such Facility Safety Officer and (ii) otherwise promptly
comply with all applicable provisions of the Plan, including, but not limited
to, management activities, design and operating standards and emergency response
provisions. Each Lease Year, Landlord or the Association (as defined in the
Plan) may deliver a questionnaire to Tenant to facilitate reporting requirements
under the Plan. Within twenty (20) days of delivery of the questionnaire to
Tenant, Tenant shall complete and execute the questionnaire and return the
questionnaire to Landlord or other party designated by Landlord.
(c) Landlord shall have the right to conduct such independent
auditing, monitoring and reporting to ensure Tenant's compliance with the Plan
(the "Inspections"), as Landlord may deem advisable from time to time. Tenant
shall be responsible for all reasonable and actual costs of the Inspections;
provided, however, that Tenant shall not be responsible for the cost and expense
of any Inspections performed more than once in any Lease Year. If possible, all
costs and expenses incurred as a result of the Inspections shall be billed
directly to Tenant and Tenant shall promptly pay such costs and expenses. Any
costs and expenses incurred as a result of the Inspections that are not billed
directly to Tenant shall be billed to Tenant by Landlord at Landlord's actual
cost. In the event any Inspection is performed to ensure not only Tenant's
compliance with the Plan, but any other tenant's compliance with the Plan, the
costs and expenses of such Inspection shall be borne equally by Tenant and such
other tenant. Regardless of whether Landlord inspects or audits Tenant's
operations, Landlord shall not be
c-6
liable for Tenant's violation of the Plan and Tenant's indemnity of Landlord in
Section 16 of the Lease shall apply to any claim or liability against Landlord
arising out of Tenant's failure to comply with the Plan.
c-7
EXHIBIT D
RULES AND REGULATIONS
These Rules and Regulations have been adopted by Landlord for the
mutual benefit and protection of all the tenants of the Building in order to
insure the safety, care and cleanliness of the Building and the preservation of
order therein.
1. The sidewalks shall not be obstructed or used for any purpose other
than ingress and egress. No tenant and no employees of any tenant shall go upon
the roof of the Building without the consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building.
3. The plumbing fixtures shall not be used for any purpose other than
those for which they were constructed, and no sweepings, rubbish, rags or other
substances, including Hazardous Substances, shall be thrown therein.
4. No tenant shall cause or permit any objectionable or offensive odors
to be emitted from the Demised Premises.
5. The Demised Premises shall not be used for lodging or sleeping or
for any immoral or illegal purposes.
6. No tenant shall make, or permit to be made any unseemly or
disturbing noises, sounds or vibrations or disturb or interfere with tenants of
this or neighboring buildings or premises or those having business with them.
7. Each tenant must, upon the termination of this tenancy, return to
the Landlord all keys of stores, offices, and rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to the Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change.
8. Canvassing, soliciting and peddling in the Building and the Project
are prohibited and each tenant shall cooperate to prevent such activity.
9. Landlord will direct electricians as to where and how telephone or
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Demised Premises shall be subject to the approval of Landlord.
10. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord. Trucks and tractor trailers
may only be parked at designated areas of the Building. Trucks and tractor
trailers shall not block access to the Building.
11. No tenant shall use any area within the Project for storage
purposes other than the interior of the Demised Premises.
12. In the event of conflict between these Rules and Regulations and
the Lease, the Lease shall control.
d-1
EXHIBIT E
CERTIFICATE OF AUTHORITY
CORPORATION
(TENANT)
The undersigned, Secretary of Anda Generics, Inc., a Florida
corporation ("Tenant"), hereby certifies as follows to Industrial Property Fund
II, L.P., a Georgia limited partnership ("Landlord"), in connection with
Tenant's proposed lease of premises in Building A, at Weston Business Center,
Broward County, Florida (the "Premises"):
1. Tenant is duly organized, validly existing and in good standing
under the laws of the State of Florida, and duly qualified to do business in the
State of Florida.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of Tenant, a lease
of the Premises and that the signature opposite the name of each individual is
an authentic signature:
Vice President &
Xxxxx Xxxxx General Counsel /s/ XXXXX XXXXX
-------------------- -------------------- ---------------------
(name) (title) (signature)
Vice President &
Xxxxxx X. [Illegible] Chief Financial Officer /s/ XXXXXX X. [ILLEGIBLE]
-------------------- -------------------- ---------------------
(name) (title) (signature)
-------------------- -------------------- ---------------------
(name) (title) (signature)
3. That the foregoing authority was conferred upon the person(s) named
above by the Board of Directors of Tenant, at a duly convened meeting held
_____________, 19___.
/s/ [ILLEGIBLE]
---------------------------
Secretary
[CORPORATE SEAL]
e-1
EXHIBIT E-1
CERTIFICATE OF AUTHORITY
PARTNERSHIP
(LANDLORD)
The undersigned, Secretary of Industrial Property Fund II, L.P., a
Georgia limited partnership ("Landlord"), hereby certifies as follows to Anda
Generics, Inc., a Florida corporation ("Tenant"), in connection with Tenant's
proposed lease of premises in Building A, at Weston Business Center, Broward
County, Florida (the "Premises"):
1. Landlord is duly formed, validly existing and in good standing under
the laws of the State of Georgia, and duly qualified to do business in the State
of Florida. XXX-XX XX, Inc. is duly formed, validly existing and in good
standing under the laws of the State of Georgia.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of XXX-XX XX, Inc.,
as general partner of Tenant, a lease of the Premises and that the signature
opposite the name of each individual is an authentic signature:
Xxxxxxx X. Xxxxxx Secretary /s/ XXXXXXX X. XXXXXX
-------------------- -------------------- ---------------------
(name) (title) (signature)
Xxxx X. Xxxx Asst. Secretary /s/ XXXX X. XXXX
-------------------- -------------------- ---------------------
(name) (title) (signature)
-------------------- -------------------- ---------------------
(name) (title) (signature)
3. Landlord has obtained all requisite partnership consent to enter
into the lease of the Premises and XXX-XX XX, Inc. is authorized to execute the
lease on behalf of Tenant.
/s/ [ILLEGIBLE]
-------------------------------
Secretary of XXX-XX XX, Inc.
[CORPORATE SEAL]
f-1
EXHIBIT F
IRREVOCABLE LETTER OF CREDIT
Industrial Property Fund II, L.P.
c/o Industrial Developments International, Inc.
0000 Xxxxxxxxx Xxxx X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Ladies and Gentlemen:
At the request and on the instructions of our customer, Anda Generics,
Inc. (the "Applicant"), we hereby establish this Irrevocable Letter of Credit
No. ______________ (the "Letter of Credit") in the amount of $__________________
in your favor. This Letter of Credit is effective immediately and shall have a
minimum term of one year from the date hereof (the "Initial Term"). This Letter
of Credit shall automatically renew for successive one year periods (each, a
"Successive Term") unless we notify you in writing at least thirty (30) days
prior to the expiration of the applicable Successive Term that the Letter of
Credit will not be renewed by us. Notwithstanding anyting to the contrary
contained herein, this Letter of Credit will not be renewed after [eleven years
from date of this Letter].
Funds under this Letter of Credit will be made available to you against
receipt by us of (1) a sight draft in the form of Annex A attached hereto and
(2) your drawing certificate in the form of Annex B attached hereto, in each
case appropriately completed and purportedly signed by one of your authorized
officers.
Presentation of any such sight draft and drawing certificate shall be
made at our office located at [PRESENTATION OFFICE ADDRESS], Attention:
________________, during our banking hours of ____ a.m., Eastern Standard Time
to ____ p.m., Eastern Standard Time.
If a sight draft and drawing certificate are presented hereunder by
sight as permitted hereunder, by 11:00 a.m., Eastern Standard Time, and provided
that such sight draft and drawing certificate conform to the terms and
conditions of this Letter of Credit, payment shall be made to you, or to your
designee, of the amount specified, in immediately available funds, not later
than 2:00 p.m., Eastern Standard Time, on the same day. If a sight draft and a
drawing certificate are presented by you hereunder after the time specified
above, and provided that such sight draft and drawing certificate conform to the
terms and conditions of this Letter of Credit, payment shall be made to you, or
to your designee, of the amount specified, in immediately available funds, not
later than 2:00 p.m., Eastern Standard Time, on the next business day. If a
demand for payment made by you hereunder does not, in any instance, conform to
the terms and conditions of this Letter of Credit, we shall give you notice
within one business day that the demand for payment was not effected in
accordance with the terms and conditions of this Letter of Credit, stating the
reasons therefor and that we will upon your instructions hold any documents at
your disposal or return the same to you. Upon being notified that the demand for
payment was not effected in conformity with this Letter of Credit, you may
attempt to correct any such non-conforming demand for payment to the extent that
you are entitled to do so and within the validity of this Letter of Credit.
Partial drawings are allowed under this Letter of Credit. Any drawing
under this Letter of Credit will be paid from our general funds and not directly
or indirectly from funds or collateral deposited with or for our account by the
Applicant, or pledged with or for our account by the Applicant.
This Letter of Credit is transferable and notwithstanding Article 48 of
the Uniform Customs (as defined below), this Letter of Credit may be
successively transferred. Transfer of this Letter of Credit to a transferee
shall be effected only upon the presentation to us of the original of this
Letter of Credit accompanied by a certificate in the form of Annex C. Upon such
presentation we shall transfer the same to your transferee or, if so requested
by your transferee, issue a letter of credit to your transferee with provisions
consistent with, and substantially the same as, this Letter of Credit.
This Letter of Credit shall be subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (the "Uniform Customs"), which is incorporated into
the text of this Letter of Credit by this reference.
Very truly yours,
[ISSUING BANK]
By:_____________________________________
Name:________________________________
Title:_______________________________
f-1
ANNEX A
SIGHT DRAFT
[Date]
At Sight
Pay to the order of Industrial Property Fund II, L.P. the sum of
_________________________ and ____/100 Dollars ($_________) drawn on [ISSUING
BANK], as issuer of its Irrevocable Letter of Credit No. __________ dated
_____________, 199__.
Industrial PROPERTY FUND II, L.P.,
a Georgia limited partnership
By: XXX-XX XX, Inc.,
a Georgia corporation,
its sole general partner
By:_________________________________
Name:____________________________
Title:___________________________
f-2
ANNEX B
DRAWING CERTIFICATE
[Date]
[ISSUING BANK]
[ADDRESS]
Attention: ______________________
Re: Irrevocable Letter of Credit No. _____________ (the "Letter of
Credit") For the Account of Anda Generics, Inc. (the "Applicant")
Ladies and Gentlemen:
The undersigned, Industrial Property Fund II, L.P. (the "Beneficiary")
hereby certifies that:
1)_______The Beneficiary is the lessor under that certain Industrial
Lease Agreement dated ___________, 199__, as amended, between the Beneficiary,
as lessor, and the Applicant, as lessee (the "Lease").
2)_______The Beneficiary is entitled to payment under the Letter of
Credit in the amount of $______________ by reason of the following condition
(xxxx only one):
___ The Applicant has defaulted under the Lease.
___ The Beneficiary has received notice from you that the Letter
of Credit will not be renewed for an additional one year term
and Applicant has failed to provide a replacement Letter of
Credit within five (5) business days after written notice from
Beneficiary to Applicant.
___ The Letter of Credit will expire pursuant to its terms within
thirty (30) days from the date of this Certificate, the
Applicant is not entitled to a release of the Letter of Credit
under the Lease and Applicant has failed to provide a
replacement Letter of Credit within five (5) business days
after written notice from Beneficiary to Applicant.
3)_______Please direct payment under the Letter of Credit by wire
transfer to:
[Depository Bank]
[Depository Bank Address]
ABA No. _________________
Acct. No. _________________
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate.
Industrial PROPERTY FUND II, L.P.,
a Georgia limited partnership
By: XXX-XX XX, Inc.,
a Georgia corporation,
its sole general partner
By:_________________________________
Name:____________________________
Title:___________________________
f-3
ANNEX C
NOTICE OF TRANSFER
[Date]
[ISSUING BANK]
[ADDRESS]
Attention: ______________________
Re: Irrevocable Letter of Credit No. _____________ (the "Letter of
Credit") For the Account of Anda Generics, Inc.
Ladies and Gentlemen:
You are hereby directed to transfer and endorse the Letter of Credit to
__________________ (the "Transferee") or to issue in accordance with the terms
of the Letter of Credit, a new letter of credit to the Transferee having the
same terms as the Letter of Credit.
We submit herewith for endorsement or cancellation the original of the
Letter of Credit.
Very truly yours,
Industrial PROPERTY FUND II, L.P.,
a Georgia limited partnership
By: XXX-XX XX, Inc.,
a Georgia corporation,
its sole general partner
By:_________________________________
Name:____________________________
Title:___________________________
f-4
Exhibit "G"
Site Plan for Building E
EXHIBIT H
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of the day of , 199_, by and among FIRST
UNION NATIONAL BANK ("Lender"), ANDA GENERICS, INC., a Florida corporation
("Tenant"), and Industrial Property Fund II, L.P., a Georgia corporation
("Landlord").
W I T N E S S E T H:
A. Landlord is the owner of those certain premises commonly known as
__________, as more particularly described in EXHIBIT "A" attached hereto (the
"Real Estate");
B. Lender is now the owner and holder of a certain Promissory Note (the
"Note"), dated _______, and a Mortgage and Security Agreement (the "Mortgage"),
dated ____________________, to be recorded in the BROWARD County, Florida
Records;
C. The Mortgage constitutes a first lien upon the Real Estate and the
improvements (the "Improvements") to be developed thereon (collectively, the
"Property");
D. Under the terms of a certain Industrial Lease Agreement (the
"Lease"), dated August __, 1998, Landlord leased to Tenant the Improvements, as
more particularly described in the Lease; and
E. The parties hereto desire to establish additional rights of quiet
and peaceful possession for the benefit of Tenant under the Lease and further to
define the terms, covenants and conditions precedent for such additional rights;
NOW, THEREFORE, in consideration of the respective covenants made
herein and of the sum of TEN DOLLARS ($10.00) and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, it is
hereby mutually covenanted and agreed as follows:
1. SUBORDINATION. The Lease is and at all times shall be subordinate to
the Mortgage and to all renewals, modifications and amendments thereof and
thereto.
2. NO AMENDMENT. Landlord and Tenant each agree not to amend or modify
the Lease without the prior written consent of Lender, which shall not be
unreasonably withheld or delayed. It is Landlord's responsibility to apply for
and obtain the consent from Lender.
3. NON-DISTURBANCE. In the event of foreclosure of the Mortgage or
conveyance in lieu of foreclosure, which foreclosure or conveyance occurs prior
to the expiration date of the Lease, including any extensions and renewals of
the Lease now provided thereunder, and so long as Tenant is not in default under
any of the terms, covenants, and conditions of the Lease beyond any applicable
grace or cure period, Lender agrees on behalf of itself, its successors and
assigns, and on behalf of any purchaser at such foreclosure ("Purchaser") that
Tenant shall not be disturbed in the quiet and peaceful possession of the
premises demised, and Tenant's rights, under the Lease.
4. ATTORNMENT. In the event of foreclosure of the Mortgage or
conveyance in lieu of foreclosure, which foreclosure or conveyance occurs prior
to the expiration date of the Lease, including any extensions and renewals of
the Lease now provided
-1-
thereunder, Tenant shall attorn to Lender or Purchaser and recognize Lender or
Purchaser as its landlord under the Lease, and Lender and Purchaser shall
recognize and accept Tenant as its tenant thereunder, whereupon the Lease shall
continue, without further agreement, in full force and effect as a direct lease
between Lender or Purchaser and Tenant for the full term thereof, together with
all extensions and renewals now provided thereunder, upon the same terms,
covenants and conditions as therein provided, and Lender or Purchaser shall
thereafter assume and perform all of Landlord's obligations, as landlord under
the Lease, with the same force and effect as if Lender or Purchaser were
originally named therein as Landlord and Tenant shall thereafter make all rent
payments directly to either Lender or Purchaser, as the case may be, subject to
limitations contained in paragraph 5 below. Tenant acknowledges that Lender has
a claim superior to Tenant's claim for Landlord's separate insurance or
condemnation proceeds, if any, received with respect to the Improvements or the
Property.
5. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
contained herein or in the Lease, in the event of foreclosure of the Mortgage or
conveyance in lieu of foreclosure, which foreclosure or conveyance occurs prior
to the expiration date of the Lease, including any extensions and renewals of
the Lease now provided thereunder, the liability of Lender, its successors and
assigns, or Purchaser, as the case may be, shall be limited to its interest in
the Property as described in the third and fourth sentences of Section 26 of the
Lease; provided, however, that Lender, its successors and assigns, or Purchaser,
as the case may be, shall in no event or to any extent:
(a) be liable to Tenant for any past act, omission, or default
on the part of the original or any prior landlord under the Lease, and
Tenant shall have no right to assert the same or any damages arising
therefrom as an offset, defense or deficiency against Lender except for
defaults under the Lease which continue due to the act or omission of
Lender or Purchaser after such party acquires title to the Property;
(b) be liable to Tenant for any payment of Base Rent or
Additional Rent for more than one month in advance, except prepayments
in the nature of security for the performance by Tenant of its
obligations under the Lease, and then only if such prepayments have
been deposited with and are under the control of Lender or Purchaser;
(c) be bound by any amendment or modification of the Lease not
consented to by Lender, which consent shall not be unreasonably
withheld or delayed. It is Landlord's responsibility to apply for and
obtain the consent from Lender;
(d) be bound by any warranty or representation of Landlord
relating to work performed by Landlord under the Lease; or
(e) be liable to Tenant for construction of the Improvements
or the portion thereof leased to Tenant.
The parties acknowledge that, if Lender, its successors and assigns, or
Purchaser (collectively, "Successor Landlord") acquires the Property as
contemplated by this Section 5, then Successor landlord shall not be required to
perform any construction or restoration of the Improvements or be bound by any
warranty or representation of Landlord relating to Landlord's construction of
the Improvements (collectively, the "Construction Obligations"). If a
Construction Obligation should arise and Successor Landlord does not perform
such Construction Obligation in accordance with the terms of the Lease, then
Tenant shall have the right to terminate this Lease subject to the following
conditions:
-2-
(x) Tenant notifies Successor Landlord of the Construction
Obligation and Successor Landlord fails to confirm within thirty (30)
days of such notice that Successor Landlord will perform the
Construction Obligation; and
(y) The failure to perform the Construction Obligation
constitutes a material detriment to Tenant's ability to conduct its
business (as contemplated by the Lease) in the Improvements.
Tenant's notice in (x) above shall specify the effective termination
date (of the Lease) which shall be at least forty-five (45) days, but not more
than sixty (60) days, after the date of such notice.
6. FURTHER DOCUMENTS. The foregoing provisions shall be self-operative
and effective without the execution of any further instrument on the part of any
party hereto. Tenant agrees, however, to execute and deliver to Lender, or to
any person to whom Tenant herein agrees to attorn, such other instruments as
either shall reasonably request in order to effectuate said provisions.
7. LEASE. Tenant certifies that, as of the date hereof and to the best
of Tenant's knowledge, there are no defaults on the part of the Tenant under the
Lease and, there are no defaults on the part of Landlord under the Lease except
as follows: __________________________________________________ [If none, state
"None"]; the Lease has not been amended and is a complete statement of the
agreement of the parties thereto with respect to the letting of the demised
premises; and all the agreements and provisions therein contained are in full
force and effect on the date of this Agreement.
8. NOTICE AND CURE. Tenant agrees that if there occurs a default by
Landlord under the Lease:
(a) a copy of each notice given to Landlord pursuant to the
Lease shall also be given to Lender, and no such notice shall be
effective as to Lender for any purpose under the Lease unless so given
to Lender; and
(b) If Landlord shall fail to cure any default within the time
prescribed by the Lease, Tenant shall give further notice of such fact
to Lender. Lender shall be allowed thirty (30) days from the later of
(i) receipt of Tenant's notice of Landlord's failure to cure or (ii)
the expiration of any Landlord cure period, to cure such default or
commence to cure and diligently pursue such cure to completion, and so
long as Lender shall cure or be proceeding diligently to cure the
defaults that are not susceptible of cure within said thirty (30) day
period, no such default shall operate or permit Tenant to terminate
this Lease.
9. OPTIONS. Tenant hereby acknowledges and agrees that notwithstanding
anything to the contrary herein or in the Lease, any interest of the Tenant in
an option to purchase or a right of first refusal to purchase with respect to
all or a part of the Property, shall not apply to, and may not be exercised or
utilized in connection with (a) any sale or other conveyance of the Property in
connection with an exercise by Lender of any of Lender's remedies under the
Mortgage, including by way of illustration but not limitation, a foreclosure or
a deed or conveyance in lieu of foreclosure; or (b) any sale or other conveyance
of the Property by Lender or any affiliate or subsidiary of Lender or other
party related to Lender, which has taken title to the Property in connection
with any action described in Paragraph 9(a) above, to a third-party.
10. NOTICES. All notices, demands and requests given or required to be
given hereunder shall be in writing and shall be deemed to have been properly
given when personally served, sent by nationally recognized commercial courier,
or sent by U.S. registered or certified mail, postage prepaid, addressed as
follows:
-3-
Lender: First Union National Bank
Mail Code GA 9068
Post Office Xxx 000000
Xxxxxxx, Xxxxxxx 00000
Attn: Real Estate Portfolio Management
with copy to: XxXxxxxxxx Xxxxxxxx, LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Xx., Esq.
Tenant: Anda Generics, Inc.
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
with copy to: Andrx Corporation
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
Landlord: Industrial Property Fund II, L.P.
c/o Industrial Developments
International, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: M. Xxxxxx Xxxxxxxx
with copy to: Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
11. BINDING EFFECT. The terms, covenants, and conditions hereof shall
inure to the benefit of and be binding upon the parties hereto, and their
respective heirs, executors, administrators, successors and assigns.
12. MODIFICATION. This Agreement may not be modified orally or in a
manner other than by an agreement signed by the parties hereto or their
respective successors in interest.
13. CHOICE OF LAW. This Agreement shall be governed by the internal law
(and not the law of conflicts) of the State of Florida.
-4-
WITNESS the due execution of this instrument under seal by the parties
hereto the day and year first above written.
"LENDER":
FIRST UNION NATIONAL BANK,
_____________________________ a national banking association
Signature
_____________________________
Print Name By:_____________________________________
Name:___________________________________
Title:__________________________________
_____________________________
Signature
[BANK SEAL]
_____________________________
Print Name
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-5-
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
"TENANT":
ANDA GENERICS, a Florida corporation
___________________________
Signature By:_____________________________________
Name:________________________________
Title:_______________________________
___________________________
Print Name
___________________________
Signature
___________________________
Print Name
Attest:_________________________________
Name:____________________________
Title:___________________________
___________________________
Signature [CORPORATE SEAL]
___________________________
Print Name
___________________________
Signature
___________________________
Print Name
-6-
"LANDLORD":
Industrial PROPERTY FUND II, L.P.,
a Georgia limited partnership
By: XXX-XX XX, Inc.,
a Georgia corporation,
its sole general partner
___________________________
Signature By:_____________________________________
Name:________________________________
Title:_______________________________
___________________________
Print Name
___________________________
Signature
___________________________
Print Name
Attest:_________________________________
Name:____________________________
Title:___________________________
___________________________
Signature [CORPORATE SEAL]
___________________________
Print Name
___________________________
Signature
___________________________
Print Name
-7-
CORPORATE ACKNOWLEDGMENT
STATE OF )
) SS
COUNTY OF )
I hereby certify that on this day, before me, an officer duly
authorized to administer oaths and take acknowledgments, personally appeared ,
of FIRST UNION NATIONAL BANK, a national banking association, named as Lender in
the foregoing Subordination, Non-Disturbance and Attornment Agreement, and that
he acknowledged executing the same in the presence of two subscribing witnesses
freely and voluntarily under authority duly vested in him by said association.
Witness my hand and official seal in the County and State last
aforesaid this __ day of _____ , 1998..
________________________________________
Notary Public
My commission expires
__________________________
[NOTARIAL SEAL]
-8-
CORPORATE ACKNOWLEDGMENT
TENANT
STATE OF )
) SS
COUNTY OF )
I hereby certify that on this day, before me, an officer duly
authorized to administer oaths and take acknowledgments, personally appeared AND
_____________________________ known to me to be the ________________________ and
______________________________ of _________________________________________, a
____________________, named as Tenant in the foregoing Subordination,
Non-Disturbance and Attornment Agreement, and that he acknowledged executing the
same in the presence of two subscribing witnesses freely and voluntarily under
authority duly vested in them by said
---------------------------.
Witness my hand and official seal in the County and State last
aforesaid this __ day of _____ , 1998..
________________________________________
Notary Public
My commission expires
__________________________
[NOTARIAL SEAL]
-9-
CORPORATE ACKNOWLEDGMENT
LANDLORD
STATE OF )
) SS
COUNTY OF )
I hereby certify that on this day, before me, an officer duly
authorized to administer oaths and take acknowledgments, personally appeared AND
_______________________________________known to me to be the
_____________________ and ____________________________________ of
_____________________________________, a ______________________________, the
general partner of Landlord in the foregoing Subordination, Non-Disturbance and
Attornment Agreement, and that he acknowledged executing the same in the
presence of two subscribing witnesses freely and voluntarily under authority
duly vested in him by said corporation.
Witness my hand and official seal in the County and State last
aforesaid this __ day of _____ , 1998..
________________________________________
Notary Public
My commission expires
__________________________
[NOTARIAL SEAL]
-10-
EXHIBIT I
PREPARED BY, RECORD, AND RETURN TO:
XXXX X. XXXXXX, ESQ.
XXXXXX XXXXXXX & XXXX LLP
000 XXXXX XXXXXXXX XXXXXXXXX, XXXXX 0000
XXXXX, XXXXXXX 00000
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, made as of the _____ day of
__________, 1998 between INDUSTRIAL PROPERTY FUND II, L.P., a Georgia limited
partnership (the "Landlord"), and ANDA GENERICS, INC., a Florida corporation
(the "Tenant").
W I T N E S S E T H:
1. Landlord is the owner of that certain real property, as more
particularly described in Exhibit "A," attached to and made a part of this
Memorandum.
2. Landlord and Tenant have entered into an Industrial Lease Agreement
of even date herewith (the "Lease") whereby Landlord leased to Tenant, and
Tenant leased from Landlord, a building to be constructed on the real property,
consisting of approximately 152,082 square feet (the "Demised Premises"). The
Demised Premises is located within an industrial development being constructed
by Landlord known as Weston Business Center, Broward County, Florida (the
"Project").
3. The term of the Lease will commence as set forth in the Lease and
will be for ten (10) years, unless earlier terminated in accordance with the
terms of the Lease. The Lease also contains an option for Tenant to renew the
term of the Lease for two (2) terms of sixty (60) months each, subject to the
terms and conditions set forth in the Lease.
4. The Lease contains substantially the following language:
To the extent permitted by law, all of Tenant's contracts and
subcontracts for alterations, improvements, or additions to the Demised Premises
shall provide that no lien shall attach to or be claimed against the Demised
Premises or any interest therein other than Tenant's leasehold interest in the
Demised Premises, and that all subcontracts let thereunder shall contain the
same provision.
5. This Memorandum does not set forth the entire Lease, and is solely
intended to give notice thereof. This Memorandum is subject to all of the
covenants, conditions, and terms set forth in the Lease, which is incorporated
herein and made a part hereof by reference, to the same extent as if all of the
covenants, conditions, and terms thereof were set forth in full herein. If any
conflict exists between the provisions of this Memorandum and the provisions of
the Lease, the provisions of the Lease shall control.
[signatures on next page]
-1-
IN WITNESS WHEREOF, Landlord and Tenant have caused this
Memorandum to be executed as of the day and year first above written.
LANDLORD:
Date:______________________
INDUSTRIAL PROPERTY FUND II, L.P.,
a Georgia limited partnership
________________________________ By: XXX-XX XX, Inc.,
Witness (print name): ________________ a Georgia corporation
its sole general partner
________________________________ By:____________________________________
Witness (print name): ________________ Name:_______________________________
Title:______________________________
_______________________________
Witness (print name): ________________
Attest:________________________________
_______________________________ Name:___________________________
Witness (print name): ________________ Title:__________________________
[CORPORATE SEAL]
TENANT:
Date:________________________
ANDA GENERICS, INC.,
a Florida Corporation
________________________________ By:_____________________________________
Witness (print name): ________________ Name:________________________________
Title:_______________________________
--------------------------------
Witness (print name): ________________
________________________________ Attest:_________________________________
Witness (print name): ________________ Name:____________________________
Title:___________________________
________________________________ [CORPORATE SEAL]
Witness (print name): ________________
-2-
STATE OF _____________)
)ss:
COUNTY OF ____________)
The foregoing instrument was acknowledged before me this _____ day of
___________, 1998, by ___________________________________ and _______________,
as _________________ and ________________________ of XXX-XX XX, Inc., a Georgia
corporation, the general partner of Industrial Property Fund II, L.P., on behalf
of such corporation. He/she is personally known to me or produced a valid
__________ driver's license as identification.
Notary Public, State of________________
Print Name:___________________________________
My commission expires:
STATE OF FLORIDA )
)ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this _____ day of
___________, 1998, by ___________________________________ and _________________,
as _________________ and ___________________________, of ANDA GENERICS, INC., a
Florida corporation, on behalf of such corporation. He/she is personally known
to me or produced a valid __________ driver's license as identification.
Notary Public, State of Florida
Print Name:__________________________
My commission expires:
-3-
EXHIBIT "A"
LEGAL DESCRIPTION
-4-
EXHIBIT J
HAZARDOUS MATERIALS MANAGEMENT PLAN
FOR
WESTON PARK OF COMMERCE
GUARANTY
THIS GUARANTY (this "Guaranty"), made and entered into this ___ day of
September, 198, by Andrx Corporation, a Florida corporation (hereinafter
referred to as "Guarantor") in favor of Industrial Property Fund II, L.P., a
Georgia limited partnership (hereinafter called "Landlord") and any subsequent
owner or holder of the Lease (as hereinafter defined).
R E C I T A L S :
Landlord has entered into an Industrial Lease Agreement ("Lease") with
Anda Generics, Inc., a Florida corporation ("Tenant"), in which
Guarantor has a direct or indirect financial interest or affiliation,
which Lease was executed by Tenant on September 18, 1998, and provides
for the leasing to Tenant of approximately 152,082 square feet of space
in a building located in Weston Business Center, in Broward County,
Florida; and
Landlord will not enter into the Lease unless Guarantor guarantees the
obligations of Tenant under the Lease as set forth herein; and
Guarantor derives benefits from the Lease to Tenant.
NOW THEREFORE, as a material inducement to Landlord to enter into the
Lease with Tenant, and for other good and valuable consideration, the receipt
and sufficiency of all of which are hereby acknowledged and confessed, Guarantor
does hereby, irrevocably and unconditionally covenant and agree with Landlord as
follows:
1. GUARANTY - Guarantor hereby unconditionally guarantees the full,
faithful and punctual payment of all rent, additional rent and other amounts due
to Landlord under the Lease by Tenant and the full, faithful and punctual
performance by Tenant of all the terms, provisions and conditions of the Lease,
together with interest or late charges on all of the foregoing as provided in
the Lease and all other reasonable costs and expenses of collection as provided
in the Lease and herein (all of the foregoing sometimes hereinafter referred to
as the "Obligations").
2. NO DISCHARGE - This Guaranty by Guarantor shall continue for the
benefit of Landlord notwithstanding (a) any extension, modification, amendment
or alteration of the Lease entered into with Anda Generics, Inc. or any related
entity thereto, (b) any assignment of the Lease, with or without the consent of
Landlord, (c) any bankruptcy, reorganization, or insolvency of Tenant or any
successor or assignee thereof, or (d) any release, extension or modification of
the liability of Tenant or any other party liable under the Lease or any other
guaranty of the Lease. This Guaranty shall in all respects be a continuing,
absolute and unconditional guaranty of payment and performance and shall remain
in full force and effect notwithstanding, without limitation, the death or
incompetency of Guarantor or Tenant, or any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Guarantor or Tenant or by any defense which Tenant
may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
3. PRIMARILY LIABLE - This Guaranty is a guaranty of payment and not of
collection. The liability of Guarantor under this Guaranty shall be joint and
several and primary and direct and in any right of action which shall accrue to
Landlord under the Lease. Landlord shall have the right, at its option, to
proceed against Guarantor (or any one or more parties constituting Guarantor)
without having commenced any action, or having obtained any judgment, against
Tenant or any other party liable under the Lease or any other guaranty of the
Lease.
-1-
4. DEFAULT - In the event of an Event of Default by Tenant under the
Lease, Landlord shall have the right to enforce its rights, powers and remedies
under the Lease, any other guaranty of the Lease, and under this Guaranty and
all rights, powers and remedies available to Landlord shall be non-exclusive and
cumulative of all other rights, powers and remedies under the Lease, any other
guaranty of the Lease or under this Guaranty or by law or in equity. The
obligations of Guarantor hereunder are independent of the obligations of Tenant
or any other guarantor, and Landlord may proceed directly to enforce all rights
under this Guaranty without proceeding against or joining Tenant, any other
guarantor or any other person or entity. Until all of the Obligations have been
performed and paid in full, Guarantor shall have no right of subrogation to
Landlord, and Guarantor hereby waives any rights to enforce any remedy which
Landlord may have against Tenant.
5. WAIVERS - Guarantor expressly waives and agrees not to assert or
take advantage of: (a) any defense that may arise by reason of the failure of
the Landlord to file or enforce a claim against Guarantor or Tenant in
bankruptcy or in any other proceeding, (b) any defense based on the failure of
Landlord to give notice of the creation, existence or incurring of any new
obligations or on the action or non-action of any person or entity in connection
with the Obligations so long as Anda Generics, Inc. or any related entity is the
Tenant under the Lease, (c) any duty on the part of Landlord to disclose to
Guarantor any facts it may know or may hereafter acquire regarding Tenant, (d)
any defense based on lack of diligence on the part of Landlord in the collection
of any and all of the Obligations, or (e) any demand for payment, presentment,
notice of protest or dishonor, notice of acceptance of this Guaranty and any and
all other notices or demands except for notices and demands to which Guarantor
might otherwise be entitled by law and notices or demands required to be given
to Guarantor or Tenant under the Lease.
6. SUBORDINATION; WAIVER OF SUBROGATION; PREFERENCE AND FRAUDULENT
TRANSFER INDEMNITY. Any indebtedness (including, without limitation, interest
obligations) of Tenant to Guarantor now or hereafter existing shall be, and such
indebtedness hereby is, deferred, postponed and subordinated to the Obligations.
Guarantor hereby unconditionally and irrevocably agrees that (a) Guarantor will
not at any time assert against Tenant (or Tenant's estate in the event Tenant
becomes bankrupt or becomes the subject of any case or proceeding under the
bankruptcy laws of the United States of America) any right or claim to
indemnification, reimbursement, contribution or payment for or with respect to
any and all amounts Guarantor may pay or be obligated to pay Landlord,
including, without limitation, any and all Obligations which Guarantor may
perform, satisfy or discharge, under or with respect to this Guaranty; (b)
Guarantor waives and releases all such rights and claims and any other rights
and claims to indemnification, reimbursement, contribution or payment which
Guarantor, or any of them, may have now or at any time against Tenant (or
Tenant's estate in the event Tenant becomes bankrupt or becomes the subject of
any case or proceeding under any bankruptcy laws); (c) Guarantor shall have no
right of subrogation, and Guarantor waives any right to enforce any remedy which
Landlord now has or may hereafter have against Tenant; (d) Guarantor waives any
benefit of, and any right to participate in, any security now or hereafter held
by Landlord; and (e) Guarantor waives any defense based upon an election of
remedies by Landlord which destroys or otherwise impairs any subrogation rights
of Guarantor or the right of Guarantor to proceed against Tenant for
reimbursement. The waivers hereunder shall continue and survive after the
payment and satisfaction of the Obligations, and the termination or discharge of
Guarantor's obligations under this Guaranty. Guarantor further hereby
unconditionally and irrevocably agrees and guarantees (on a joint and several
basis) to make full and prompt payment to Landlord of any of the Obligations or
other sums paid by Tenant to Landlord pursuant to the Lease which Landlord is
subsequently ordered or required to pay or disgorge on the grounds that such
payments constituted an avoidable preference or a fraudulent transfer under
applicable bankruptcy, insolvency or fraudulent transfer laws; and Guarantor
shall fully and promptly indemnify Landlord for all reasonable costs (including,
without limitation, reasonable attorney's fees) incurred by Landlord in defense
of such claims of avoidable preference or fraudulent transfer.
-2-
7. CHOICE OF LAW - This Guaranty is to be performed in the State of
Florida and shall be governed by and construed in accordance with the laws of
the State of Florida, without regard to its conflicts laws or choice of law
rules.
8. TIME OF ESSENCE - Time is of the essence of this Guaranty.
9. NOTICES - Wherever any notice or other communication is required or
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by hand, or by nationally-recognized overnight express
delivery service, by U. S. registered or certified mail, return receipt
requested, postage prepaid to the addresses set out below or at such other
addresses as are specified by written notice delivered in accordance herewith:
Landlord: Industrial Property Fund II, L.P.
c/o Industrial Developments
International, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President - Operations
Guarantor: Andrx Corporation
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given (a) on the date of delivery, if delivered by hand; or (b) on
the date mailed if sent by overnight express delivery or if sent by U.S. mail.
Such notices shall be deemed received (a) on the date of delivery, if delivered
by hand or overnight express delivery service; or (b) on the date indicated on
the return receipt if mailed. If any notice mailed is properly addressed but
returned for any reason, such notice shall be deemed to be effective notice and
to be given on the date of mailing.
10. AUTHORITY - If Guarantor is not a natural person,
Guarantor shall cause its corporate secretary or general partner, as applicable,
to execute the certificate attached hereto as EXHIBIT A. Guarantor is authorized
by all required corporate or partnership action to enter into this Guaranty and
the individual(s) signing this Guaranty on behalf of Guarantor are each
authorized to bind Guarantor to its terms.
11. SUCCESSORS AND ASSIGNS - This Guaranty shall be binding
upon and inure to the benefit of the parties hereto and their heirs, legal
representatives, successors and assigns.
-3-
IN WITNESS WHEREOF, Guarantor has executed under seal and
delivered this Guaranty to Landlord on the date and year above first written.
GUARANTOR:
ANDRX CORPORATION, a Florida corporation
By: /s/ XXXXXX X. [ILLEGIBLE]
-------------------------------------
Name: Xxxxxx X. [Illegible]
Title: Vice President and CFO
Attest: /s/ XXXXX XXXXX
-------------------------------------
Name: Xxxxx Xxxxx
Title: V.P./General Counsel
[CORPORATE SEAL]
-4-
EXHIBIT A
CERTIFICATE OF AUTHORITY
CORPORATION
The undersigned, Secretary of Andrx Corporation, a Florida corporation
("Guarantor"), hereby certifies as follows to Industrial Property Fund II, L.P.,
a Georgia limited partnership ("Landlord"), in connection with the execution of
a Guaranty by Guarantor (the "Guaranty) of that certain Industrial Lease
Agreement dated _____, 1998 between Landlord and Anda Generics, Inc. ("Tenant")
(the "Lease") relating to the lease of approximately 152,082 square feet within
Building A, at Weston Business Center, Broward County, Florida (the "Premises"):
1. Guarantor is duly organized, validly existing and in good standing
under the laws of the State of Florida, and duly qualified to do business in the
State of Florida.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of Guarantor, a
Guaranty of the Lease and that the signature opposite the name of each
individual is an authentic signature:
-------------------- -------------------- ---------------------
(name) (title) (signature)
-------------------- -------------------- ---------------------
(name) (title) (signature)
-------------------- -------------------- ---------------------
(name) (title) (signature)
3. That the foregoing authority was conferred upon the person(s) named
above by the Board of Directors of Guarantor, at a duly convened meeting held
_____________, 19___.
--------------------------------
Secretary
[CORPORATE SEAL]
