Exhibit 10.1
INDUSTRIAL LEASE AGREEMENT
BETWEEN
INDUSTRIAL PROPERTY FUND III, L.P.
AS LANDLORD
AND
D & K HEALTHCARE RESOURCES, INC.
AS TENANT
LEASE INDEX
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Section Subject
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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 and Financial Statement
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
40 Radon Disclosure
Exhibit "A" Demised Premises
Exhibit "B" Preliminary Plans and Specifications/Work
Exhibit "C" Special Stipulations
Exhibit "D" Rules and Regulations
Exhibit "E" Certificate of Authority
Exhibit "F" Subordination, Non-Disturbance and Attornment Agreement
Exhibit "G" Hazardous Materials Management Plan
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INDUSTRIAL LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease") is made as of the "Lease Date" (as
defined in Section 37 herein) by and between INDUSTRIAL PROPERTY FUND III, L.P.,
a Georgia limited partnership ("Landlord"), and D & K HEALTHCARE RESOURCES,
INC., a ____________ 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
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provisions of this Lease:
(a) Demised Premises Address: 0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx
00000
(b) Demised Premises Square Footage: approximately 24,140
sq. ft.
(c) Building Square Footage: approximately 120,840 sq. ft.
(d) Annual Base Rent (exclusive of applicable sales taxes):
Lease Year 1 $168,980.00
Lease Year 2 $174,049.40
Lease Year 3 $179,270.88
Lease Year 4 $184,649.01
Lease Year 5 $190,188.48
(e) Monthly Base Rent Installments (exclusive of applicable
sales taxes):
Lease Year 1 $14,081.67
Lease Year 2 $14,504.12
Lease Year 3 $14,939.24
Lease Year 4 $15,387.42
Lease Year 5 $15,849.04
(f) Lease Commencement Date: May 15, 2001
(g) Base Rent Commencement Date: May 15, 2001
(h) Expiration Date: May 14, 2006
(i) Primary Term: Five (5) years
(j) Tenant's Operating Expense Percentage: 20.00%
(k) Security Deposit: $14,081.67
(l) Permitted Use: Storage and distribution of
pharmaceutical products and office and
administrative uses reasonably ancillary
thereto and other lawful uses consistent
with the uses in the Project.
(m) Address for notice:
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Landlord: Industrial Property Fund III, L.P.
c/o IDI Services Group, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Manager - Lease Administration
Tenant: D & K Healthcare Resources, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
with a copy to (only in event of notice of Default to
Tenant):
Fleet Capital Corporation
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
(n) Address for rental payments:
Industrial Property Fund III, L.P.
c/o IDI Services Group, Inc.
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
(o) Broker(s): CB Xxxxxxx Xxxxx and U.S. Realty
2. Demised Premises. For and in consideration of the rent hereinafter
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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 24,140 square
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feet of space, approximately 2,000 square feet of which is office space, having
an address as set forth in Section 1(a), located within Building D (the
"Building"), which contains a total of approximately 120,840 square feet and is
located within Weston Business Center (the "Project"), located in Broward
County, Florida.
3. Term. To have and to hold the Demised Premises for a preliminary term
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(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 "Primary
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 Preliminary Term,
the Primary Term, and any and all extensions thereof, herein referred to as the
"Term"). The term "Lease Year", as used in this Lease, shall mean the 12-month
period commencing on the Base Rent Commencement Date, and each 12-month period
thereafter during the Term; provided, however, that (i) the first Lease Year
will include the period between the Lease Commencement Date and the Base Rent
Commencement Date, if applicable, and (ii) if the Base Rent Commencement Date is
a day other than the first day of a calendar month, the first Lease Year shall
include the period between the Base Rent Commencement Date and the end of the
calendar month in which the Base Rent Commencement Date occurs and shall extend
through the end of the twelfth (12th) full calendar month following the Base
Rent Commencement Date.
4. Base Rent. Tenant shall pay to Landlord at the address set forth in
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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,
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
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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
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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,
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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 have the right to 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.
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(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, 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
which law, ordinance or regulation becomes effective after the Lease
Commencement Date (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 not include (i) expenses for
the costs of any maintenance and repair required to be performed by Landlord at
its own expense under Section (10)(b) or (ii) costs associated with the
negotiation of other tenant leases or (iii) any item charged to Tenant elsewhere
in the Lease. 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 incurred 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 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, 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 credit the amount of such overpayment toward the
next installment of Operating Expenses owed by Tenant or remit such overpayment
to Tenant if the Term has expired or has been terminated and 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 regardless of the Base Rent
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
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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.
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(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, and shall not commit any waste.
(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 could
constitute a nuisance or trespass for Landlord or any occupant of the Building
or an adjoining building, its customers, agents, or invitees. Upon notice by
Landlord to Tenant that any of the aforesaid prohibited uses are occurring,
Tenant agrees to promptly remove or control the same.
(d) Tenant shall not in any way violate any law, ordinance or
restrictive covenant affecting the Demised Premises, and shall not in any manner
use the Demised Premises so as to cause cancellation of, prevent the use 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.
(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 use of the Demised Premises by Tenant, Tenant shall pay such additional
amount as Additional Rent.
8. Insurance.
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(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
(including Broad Form Property Damage and Contractual Liabilities 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 $10,000,000.00 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 in form reasonably acceptable to Landlord 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:
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(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 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 thirty (30) 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.
(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 in which event no such
notice shall be necessary) procure such policies of insurance and Tenant shall
promptly reimburse Landlord therefor.
(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
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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. To the extent reasonably possible, such utilities shall be separately
metered and billed to Tenant. In the event any such utilities are separately
metered, Tenant's obligation for payment of such utilities shall commence as of
the date of Tenant's actual occupancy of all or any portion of the Demised
Premises, including any period of occupancy prior to the Lease Commencement
Date, regardless of whether or not Tenant conducts business operations during
such period of occupancy. Any utilities which are not separately metered shall
be billed to Tenant by Landlord at Landlord's actual cost. In the event Tenant's
use of any utility not metered is in excess of the average use by other tenants,
Landlord shall have the right to install a meter for such utility, at Tenant's
expense, and xxxx Tenant for Tenant's actual use. 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.
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(a) Tenant shall, at its own cost and expense, maintain in good
condition and repair and replace as necessary 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, repair and replacement 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, repair and replacement required
because of the act or negligence of Landlord, its employees, contractors or
agents, which shall be the responsibility of Landlord.
(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 any of Tenant's or such subsidiaries' or affiliates' agents, contractors,
employees, licensees and invitees (collectively, "Tenant's Affiliates"), the
cost of which shall be the responsibility of Tenant.
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(c) Unless the same is caused solely by the negligent action or
inaction of Landlord, its 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
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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. 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, in the case of personal injury only, to the extent caused by the
negligence of Landlord, its agents, employees and contractors. Tenant further
agrees to indemnify and reimburse Landlord for any costs or expenses, including,
without limitation, 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 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
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Demised Premises trade fixtures required by Tenant or used by it in its
business, and if installed by Tenant, to remove any or all such trade fixtures
from time to time during and upon termination or expiration of this Lease,
provided no Event of Default, as defined in Section 22, then exists; provided,
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however, that Tenant shall repair and restore any damage or injury to the
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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.
13. Signs. No sign, advertisement or notice shall be inscribed, painted,
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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, 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. Landlord's Lien. Notwithstanding any other provision hereof to the
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contrary, Tenant does hereby grant to Landlord, and Landlord shall have at all
times, a security interest in and a valid first lien upon all of the personal
property and trade fixtures of Tenant situated in and upon the Demised Premises
to secure the obligations of Tenant for all Base Rent, Additional Rent and other
sums to become due hereunder and the performance by Tenant of each and all of
Tenant's other covenants and obligations hereunder. The security interest and
lien granted herein may be foreclosed in the manner and form provided by law for
the foreclosure of chattel mortgages or in any other manner provided or
permitted by law.
15. Governmental Regulations. Tenant shall promptly comply throughout
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the Term, at Tenant's sole cost and expense, with all present and future laws,
ordinances, orders, rules, regulations or requirements of all federal, state and
municipal governments and appropriate departments, commissions, boards and
officers thereof (collectively, "Governmental Requirements") relating to (a) all
or any part of the Demised Premises, and (b) the use or manner of use of the
Demised Premises and the Building Common Area. 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.
Without limiting the foregoing, if as a result of one or more Governmental
Requirements it is necessary, from time to time during the Term, to perform an
alteration or modification of the Demised Premises or the Building Common Area
(a "Code Modification") which is made necessary as a result of the specific use
being made by Tenant of the Demised Premises, then such Code Modification shall
be the sole and exclusive responsibility of Tenant in all respects; any such
Code Modification shall be promptly performed by Tenant at its expense in
accordance with the applicable Governmental Requirement and with Section 18
hereof. If as a result of one or more Governmental Requirements it is necessary
from time to time during the Term to perform a Code Modification which (i) would
be characterized as a capital expenditure under generally accepted accounting
principles and (ii) is not made necessary as a result of the specific use being
made by Tenant of the Demised Premises (as distinguished from an alteration or
modification which would be required to be made by the owner of any
warehouse-office building comparable to the Building irrespective of the use
thereof by any particular occupant), then (a) Landlord shall have the obligation
to perform the Code Modification at its expense, (b) the cost of such Code
Modification shall be amortized on a straight-line basis over the useful life of
the item in question, as reasonably determined by Landlord, and (c) Tenant shall
be obligated to pay (as Additional Rent, payable in the same manner and upon the
same terms and conditions as the Base Rent reserved hereunder) for the portion
of such amortized costs attributable to the remainder of the Term, including any
extensions thereof. Tenant shall promptly send to Landlord a copy of any written
notice received by Tenant requiring a Code Modification.
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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, nor,
to Landlord's actual knowledge, has any predecessor owner of the Demised
Premises.
(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. 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 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
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shall not be required for the use at the Demised Premises of cleaning supplies,
toner for photocopying machines and other similar materials, 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. 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
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expenses, losses, and liabilities arise out of Landlord's own or Landlord's
agents' negligence or willful act), 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) Within thirty (30) days after the Lease Date, 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 plans and specifications and/or
preliminary floor plans set forth on Exhibit B attached hereto and incorporated
---------
herein, covering all work to be performed by Landlord in constructing the
Improvements (as defined in Section 8(a)(ii)). 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
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. 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, the Plans and specifications, as modified
by said revisions, shall be deemed to be final upon the submission of said
revisions to Tenant. 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 and, as a result thereof,
Substantial Completion (as hereinafter defined) of the Improvements is delayed,
then for purposes of establishing the Lease Commencement Date and any other date
tied to the date of Substantial Completion, Substantial Completion shall be
deemed to mean the date when Substantial Completion would have been achieved but
for such Tenant delay.
(b) Landlord shall use reasonable speed and diligence to
Substantially Complete the Improvements, at Landlord's sole cost and expense,
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 obligations of Tenant hereunder except that the Lease
Commencement Date, the Base Rent Commencement Date, and the Expiration Date
shall 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.
(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, not to exceed thirty
(30) days, 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 items of said work which
are not completed or do not conform to the Plans and Specifications and which
are included on the Punchlist.
(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
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
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remain as set forth in Section 1, or if revised pursuant to the terms hereof,
setting forth such dates as so revised.
(e) Landlord hereby warrants to Tenant, which warranty shall survive
for the one (1) year period following the Lease Commencement Date, that (i) the
materials and equipment furnished by Landlord's contractors in the completion of
the Improvements will be of good quality and new, and (ii) such materials and
equipment and the work of such contractors shall be free from defects not
inherent in the quality required or permitted hereunder. This warranty shall
exclude damages or defects caused by Tenant or Tenant's Affiliates, improper or
insufficient maintenance, improper operation, or normal wear and tear under
normal usage.
(f) For purposes of this Lease, the term "Substantial Completion" (or
any variation thereof) shall mean completion of construction of the Improvements
in accordance with the Plans and Specifications, subject only to Punchlist items
established pursuant to Section 17(c), which items in the aggregate do not
materially interfere with Tenant's use of the Demised Premises, so that Tenant
can lawfully occupy and conduct its business at the Demised Premises, as
established by the delivery by Landlord to Tenant of a certificate of occupancy
(or temporary certificate of occupancy or its equivalent) for the Demised
Premises issued by the appropriate governmental authority, if a certificate is
so required by a governmental authority. In the event Substantial Completion is
delayed because of a delay caused by Tenant, then for the purpose of
establishing the Lease Commencement Date and any other date tied to the date of
Substantial Completion, Substantial Completion shall be deemed to mean the date
when Substantial Completion would have been achieved but for such delay.
18. Tenant Alterations and Additions.
--------------------------------
(a) Except for decorative furnishings or fixtures, 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 at Landlord's option 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. 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
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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 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
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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 or as otherwise specifically provided for herein, 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 one
hundred eighty (180) days after the date of such damage or two hundred forty
(240) days after the date of such damage in the event such damage is the result
of a hurricane; 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 sixty (60) days of such
casualty. Either Landlord or Tenant may terminate and cancel this Lease
effective as of the date of such casualty by giving written notice to the other
party within thirty (30) 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.
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
based on the actual loss of use of the Demised Premises suffered by Tenant from
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 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, 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) business days after Landlord gives written notice to Tenant
of such failure;
(ii) if Tenant fails to pay Base Rent or any Additional Rent on
time more than three (3) times in any period of twelve (12) months,
notwithstanding that such payments have been made within the applicable cure
period;
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(iii) if the Demised Premises become vacant, deserted, or
abandoned for more than ten (10) consecutive days or if Tenant fails to take
possession of the Demised Premises on the Lease Commencement Date or within
thirty (30) days 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 reasonably 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) business 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 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):
(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 (which excess, if any shall
be discounted to present value at the "Treasury Yield" as defined below for the
Remaining Term); plus (2) the reasonable out of pocket costs of recovering
----
possession of the Demised Premises and all other expenses reasonably 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
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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 likelihood of reletting the Demised Premises for a period of time equal
to the remainder of the Term, (d) 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, (e) the vacancy
levels in the general area in which the Building is located, (f) 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 (g)
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 (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. 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 Landlord's
negligence. 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 or without notice to
Tenant, peaceably 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; or
(vi) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same so
long as an Event of Default exists under this Lease; or
(vii) With or without terminating this Lease, allow the Demised
Premises to remain unoccupied and collect rent from Tenant as it comes due; or
(viii) 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
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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.
23. Landlord's Right of Entry. 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 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 to exhibit the Demised
Premises to any prospective purchaser, mortgagee or tenant thereof.
24. Lender's Rights.
---------------
(a) For purposes of this Lease:
(i) "Lender" as used herein means the 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. 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, Lender may, by written notice to
Tenant, make this Lease superior to the lien of its 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 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, (iii) the defaults of any prior landlord under this Lease, 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
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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) In the event there is a Mortgage at any time during the Term,
Landlord shall use reasonable efforts to cause the Lender to enter into a
subordination, nondisturbance and attornment agreement with Tenant reasonably
satisfactory to Tenant and consistent with this Section 24.
25. Estoppel Certificate and Financial Statement.
--------------------------------------------
(a) 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
unconditionally accepted the Demised Premises and is conducting its business
therein, and (v) and as to such additional matters as may be 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.
(b) If Landlord desires to finance, refinance, or sell the Building,
Tenant and all Guarantors shall deliver to any potential lender or purchaser
designated by Landlord such financial statements of Tenant and such Guarantors
as may be reasonably required by such lender or purchaser, including but not
limited to Tenant's financial statements for the past 3 years. All such
financial statements shall be received by Landlord and such lender or purchaser
in confidence and shall be used only for the purposes herein set forth.
26. Landlord Liability. No owner of the Demised Premises, whether or not
------------------
named herein, shall have liability hereunder arising after it ceases to hold
title to the Demised Premises. Neither Landlord nor any officer, director,
shareholder, partner or principal of Landlord, 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. 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.
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. Tenant represents and warrants to Landlord that, except for
-------
those parties set forth in Section 1(o) (the "Brokers"), Tenant 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. Tenant
hereby further represents and warrants to Landlord that Tenant is not receiving
and is not entitled to receive any rebate, payment or other remuneration, either
directly or indirectly, from the Brokers, and that it is 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. Tenant hereby indemnifies Landlord against and from any
claims for any brokerage commissions by parties allegedly acting on Tenant's
behalf or retained by Tenant (except those payable to the Brokers, all of which
are payable by Landlord pursuant to a separate agreement) 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. 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 determines (i) that the prospective
assignee or subtenant is not of a financial strength similar to Tenant as of the
Lease Date, (ii) that the prospective assignee or subtenant has a poor business
reputation, (iii) that the proposed use of the Demised Premises by such
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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 forty-five (45) 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 thirty (30) days following receipt of such
notice and other information requested by Landlord within which to notify Tenant
in writing that Landlord elects: (i) to terminate this Lease as to the space so
affected as of the proposed effective date set forth in Tenant's notice, in
which event Tenant shall be relieved of all further obligations hereunder as to
such space, except for obligations under Sections 11 and 28 and all other
provisions of this Lease which expressly survive the termination hereof; or (ii)
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 (after
payment of brokerage commissions, attorneys' fees 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 (iii) to refuse, in Landlord's reasonable
discretion (taking into account all relevant 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 Landlord should fail
to notify Tenant in writing of such election within the aforesaid thirty (30)
day period, Landlord shall be deemed to have elected option (iii) above. Tenant
agrees to reimburse Landlord for reasonable legal fees 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, up to a maximum of $1,000
per request. 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.
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 the
greater of (i) two hundred percent (200%) of the then current fair market base
rental value of the Demised Premises or (ii) two hundred percent (200%) 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. 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.
--------
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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 occasion during any twelve (12) month period, or (ii) as and
when due with respect to any subsequent late payments in any twelve (12) month
period, Tenant shall pay an administrative fee (the "Administrative Fee") equal
to five percent (5%) of such past due amount, 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. The
Administrative Fee is in addition to, and not in lieu of, any of the Landlord's
remedies hereunder.
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, so long as
such rules and regulations are uniformly enforced against all tenants of
Landlord in the Building.
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.
(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.
(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 prior representations, inducements,
letters of intent, promises or agreements, oral or otherwise, between the
parties not embodied herein shall be of any force and effect. Any future
amendment to this Lease must be in writing and signed by the parties hereto. 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 have the right to record this
Lease or a memorandum thereof.
(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.
a-18
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. If Tenant is not a natural person, Tenant shall cause
---------
its corporate secretary or general partner, as applicable, to execute the
certificate attached hereto as Exhibit E. Tenant is authorized by all required
---------
corporate or partnership action to enter into this Lease and the individual(s)
signing this Lease on behalf of Tenant are each authorized to bind Tenant to its
terms.
39. No Offer Until Executed. The submission of this Lease by Landlord
-----------------------
to Tenant for examination or consideration does not constitute an offer by
Landlord 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.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Demised Premises on the terms contained herein. The offer by Tenant
will be irrevocable until 6:00 p.m. Eastern time for fifteen (15) days after the
date of execution of this Lease by Tenant and delivery to Landlord.
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.
a-19
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
under seals, the day and year first above written.
LANDLORD:
Date: February 6, 2001
INDUSTRIAL PROPERTY FUND III, L.P., a
Georgia limited partnership
By: IPF-GP III, LLC, a Delaware limited
liability company, its sole general
partner
By: Industrial Properties America -
GP, LLC, a Delaware limited
liability company, its sole
member
By: IDI-GP, Inc., a Georgia
corporation, its managing
member
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------ ------------------
Witness (print name): Xxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxx
--------------
Title: Secretary
/s/ Xxxx X. Xxxxxx
------------------
Witness (print name): Xxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxxx Attest: /s/ Xxxxxxx X. Xxxx
------------------ -------------------
Witness (print name): Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary
/s/ Xxxx X. Xxxxxx [CORPORATE SEAL]
------------------
Witness (print name): Xxxx X. Xxxxxx
TENANT:
Date: February 7, 2001 D & K HEALTHCARE RESOURCES, Inc., a
Delaware corporation
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Witness (print name): Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President and COO
/s/ Xxxxxxx X. Xxxxx
--------------------
Witness (print name): Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx Attest: /s/ Xxxxxxx X. Xxxxxxxx
------------------ -----------------------
Witness (print name): Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
/s/ Xxxxxxx X. Xxxxx [CORPORATE SEAL]
--------------------
Witness (print name): Xxxxxxx X. Xxxx
a-20
