INDUSTRIAL LEASE AGREEMENT BETWEEN INDUSTRIAL PROPERTY FUND III, L.P. AS LANDLORD AND NATIONSHEALTH, INC. and UNITED STATES PHARMACEUTICAL GROUP, LLC COLLECTIVELY AS TENANT
Exhibit 10.4
BETWEEN
INDUSTRIAL PROPERTY FUND III, L.P.
AS LANDLORD
AND
and
UNITED STATES PHARMACEUTICAL GROUP, LLC
COLLECTIVELY AS TENANT
| Section | Subject | |||||
| 1 | Basic Lease Provisions | |||||
| 2 | Demised Premises | |||||
| 3 | Term | |||||
| 4 | Base Rent | |||||
| 5 | Security Deposit | |||||
| 6 | Operating Expenses and Additional Rent | |||||
| 7 | Use of Demised Premises | |||||
| 8 | Insurance | |||||
| 9 | Utilities | |||||
| 10 | Maintenance and Repairs | |||||
| 11 | Tenant’s Personal Property; Indemnity | |||||
| 12 | Tenant’s Fixtures | |||||
| 13 | Signs | |||||
| 14 | Landlord’s Lien | |||||
| 15 | Governmental Regulations | |||||
| 16 | Environmental Matters | |||||
| 17 | AS-IS | |||||
| 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 | Relocation | |||||
| 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” Hazardous Materials Management Plan
Exhibit “C” Special Stipulations
Exhibit “D” Rules and Regulations
Exhibit “E” Certificate of Authority
Exhibit “B” Hazardous Materials Management Plan
Exhibit “C” Special Stipulations
Exhibit “D” Rules and Regulations
Exhibit “E” Certificate of Authority
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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 NATIONSHEALTH, INC., and UNITED STATES PHARMACEUTICAL GROUP, L.L.C., a Delaware
limited liability company (collectively “Tenant”) (the words “Landlord” and “Tenant” to include
their respective legal representatives, successors and permitted assigns where the context requires
or permits).
| 1. | Basic Lease Provisions. The following constitute the basic provisions of this
Lease: |
| (a) | Demised Premises Address: | 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxx | ||||
| Xxxxx 000 | ||||||
| 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 | $ | 205,190.00 | (plus the prorated amount for any Fractional Month per Section 3 hereof, if applicable) | |||||
| Lease Year 2 | $ | 211,345.68 | ||||||
| Lease Year 3 | $ | 217,686.12 | ||||||
| Lease Year 4 | $ | 224,216.64 | ||||||
| Lease Year 5 | $ | 230,943.12 |
| (e) | Monthly Base Rent Installments (exclusive of applicable sales taxes): | |||||
| Lease Year 1 | $ | 17,099.17 | (plus the prorated amount for any Fractional Month per Section 3 hereof, if applicable) | |||||
| Lease Year 2 | $ | 17,612.14 | ||||||
| Lease Year 3 | $ | 18,140.51 | ||||||
| Lease Year 4 | $ | 18,684.72 | ||||||
| Lease Year 5 | $ | 19,245.26 |
| (f) | Lease Commencement Date: | September 4, 2006 | ||||
| (g) | Base Rent Commencement Date: | September 4, 2006 | ||||
| (h) | Expiration Date: | September 30, 2011 |
| (i) | Primary Term: Sixty (60) months plus, in the event the Base Rent Commencement Date does not occur on the first (1st) day of a calendar month, the period from and including the Base Rent Commencement Date to and including the last day of the calendar month in which the Base Rent Commencement Date occurs (if applicable, the “Fractional Month”) | |||||
| (j) | Tenant’s Operating Expense Percentage: | 19.98% | ||||
| (k) | Security Deposit: | $34,198.34 |
| (l) | Permitted Use: | Storage and distribution of pharmaceutical supplies and office and administrative uses reasonably ancillary thereto, including without limitation sales and service for Tenant’s product lines. |
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| (m) | Address for notice: |
| 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: | United States Pharmaceutical Group, L.L.C. | |||||
| c/o NationsHealth, Inc. | ||||||
| 00000 XX 0xx Xxxxxx, Xxxxx 000 | ||||||
| Xxxxxxx, Xxxxxxx 00000 | ||||||
| Attn. Chief Operating Officer |
| (n) | Address for rental payments: |
| Industrial Property Fund III, L.P. | ||||||
| c/o IDI Services Group, LLC | ||||||
| X.X. Xxx 000000 | ||||||
| Xxxxxxx, Xxxxxxx 00000-0000 |
| (o) | Broker(s): | U.S. Realty |
2. Demised Premises. For and in consideration of the rent hereinafter reserved and
the mutual covenants hereinafter contained, Landlord does hereby lease and demise unto Tenant, and
Tenant does hereby hire, lease and accept, from Landlord all upon the terms and conditions
hereinafter set forth the following premises, referred to as the “Demised Premises”, as outlined on
Exhibit A attached hereto and incorporated herein: an agreed upon approximately 24,140
square 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
an agreed upon approximately 120,840 square feet and is located within Weston Business Center (the
“Project”), located in Broward County, Florida. The parties acknowledge that the number of square
feet recited above has been conclusively determined and is not subject to contest by either party.
3. Term. To have and to hold the Demised Premises for a preliminary term (the
“Preliminary Term”) commencing on the Lease Date and ending on the day immediately preceding 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) (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 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 resulting Fractional Month 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 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 for the resulting Fractional Month (which pro rata payment shall be due and payable on
the Base Rent Commencement Date). No payment by Tenant or receipt by Landlord of rent hereunder
shall be deemed to be other than on account of the amount due, and no endorsement or statement on
any check or any letter accompanying any check or payment of rent shall be deemed an accord and
satisfaction, and Landlord may accept such check as payment without prejudice to Landlord’s right
to recover the balance of such installment or payment of rent or pursue any other remedies
available to Landlord.
5. Security Deposit. Upon Tenant’s execution of this Lease, Tenant will pay to
Landlord the sum set forth in Section 1(k) (the “Security Deposit”) as security for the full and
faithful performance by Tenant of each and every term, covenant and condition of this Lease. The
acceptance by Landlord of the Security Deposit paid by Tenant shall not render this Lease effective
unless and until Landlord shall have executed and delivered to Tenant a fully executed copy of this
Lease. The Security Deposit may be commingled with Landlord’s other funds or held by Landlord in a
separate interest bearing account, with interest paid to Landlord, as Landlord may elect. In the
event that Tenant is in default under this Lease, Landlord may retain the Security Deposit for the
payment of any sum due Landlord or which Landlord
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may expend or be required to expend by reason of Tenant’s default or failure to perform;
provided, however, that any such retention by Landlord shall not be or be deemed to
be an election of remedies by Landlord or viewed as liquidated damages, it being expressly
understood and agreed that Landlord shall have the right to pursue any and all other remedies
available to it under the terms of this Lease or otherwise. In the event all or any portion of the
Security Deposit is so retained by Landlord, Tenant shall, within five (5) days of demand therefor
from Landlord, replenish the Security Deposit to the full amount set forth in Section 1(k). In the
event that Tenant shall comply with all of the terms, covenants and conditions of this Lease, the
Security Deposit shall be returned to Tenant within thirty (30) days after the later of (a) the
Expiration Date or (b) the date that Tenant delivers possession of the Demised Premises to
Landlord. In the event of a sale of the Building, Landlord shall 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.
(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”) fully operational and 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 trash removal), roof,
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 (including, without limitation, commercially reasonable deductibles), and
costs of improvements to the Building and the Building Common Area required by any law, ordinance
or regulation applicable to the Building and the Building Common Area generally (and not because of
the particular use of the Building or the Building Common Area by a particular tenant), which cost
shall be amortized on a straight line basis over the useful life of such improvement, as reasonably
determined by Landlord. Operating Expenses shall not include expenses for the costs of any
maintenance and repair required to be performed by Landlord at its own expense under Section
(10)(b). Further, Operating Expenses shall not include the costs for capital improvements unless
such costs are incurred for the purpose of causing a material decrease in the Operating Expenses of
the Building or the Building Common Area or are 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)); provided that, as to management fees, Tenant shall pay Landlord the management fees
directly attributable to the Rent (as hereinafter defined) payable hereunder with respect to the
Demised Premises, and not Tenant’s Operating Expense Percentage of the management fees payable on
the entire Building. Notwithstanding the foregoing, Landlord shall, in Landlord’s reasonable
discretion, have the right to adjust Tenant’s proportionate share of individual components of
Operating Expenses if Tenant’s Operating Expense Percentage thereof would not equitably allocate to
Tenant its share of such component of Operating Expenses in light of Tenant’s particular use of,
manner of use of and/or level of tenant improvements in the Demised Premises. 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 (all such Base Rent and
Additional Rent sometimes being referred to collectively herein as “Rent”). 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.
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(c) If applicable in the jurisdiction where the Demised Premises are located, Tenant shall pay
and be liable for all rental, sales, use and inventory taxes or other similar taxes, if any, on the
amounts payable by Tenant hereunder levied or imposed by any city, state, county or other
governmental body having authority, such payments to be in addition to all other payments required
to be paid to Landlord by Tenant under the terms of this Lease. Such payment shall be made by
Tenant directly to such governmental body if billed to Tenant, or if billed to Landlord, such
payment shall be paid concurrently with the payment of the Base Rent, Additional Rent, or such
other charge upon which the tax is based, all as set forth herein.
7. Use of Demised Premises.
(a) The Demised Premises shall be used for the Permitted Use set forth in Section 1(l) and for
no other purpose.
(b) Tenant will permit no liens to attach or exist against the Demised Premises, 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.
(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 “Special Form” 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.
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(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:
(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) Notwithstanding anything to the contrary contained in this Lease, 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 “Special Form”
fire and extended coverage insurance of the type and amount required to be carried hereunder,
provided that such waiver does not invalidate such policies or prohibit recovery thereunder. The
parties hereto shall cause their respective insurance companies insuring the property of either
Landlord or Tenant against any such loss, to waive any right of subrogation that such insurers may
have against Landlord or Tenant, as the case may be.
9. Utilities. During the Term, Tenant shall promptly pay as billed to Tenant all rents
and charges for water and sewer services and all costs and charges for gas, steam, electricity,
fuel, light, power, telephone, heat and any other utility or service used or consumed in or
servicing the Demised Premises and all other costs and expenses involved in the care, management
and use thereof as charged by the applicable utility companies. All such utilities, except for
sewer and water, shall be separately metered and billed to Tenant, and Tenant shall establish an
account with the utility provider with respect to each such separately metered utility. Sewer and
water shall not be separately metered, and shall be billed to Tenant by Landlord, at Landlord’s
actual cost, in an amount equal to a reasonable estimation of such utilities actually used by
Tenant. Tenant’s obligation for payment of all utilities shall commence on the earlier of the
Lease Commencement Date or 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.
In the event Tenant’s use of any utility not separately 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 payment due
as Additional Rent.
10. Maintenance and Repairs.
(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; provided, however, that during the one
year
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period following the Lease Commencement Date, such service contract shall be maintained with
the contractor that installed the heating, ventilation and air conditioning systems and shall
provide for at least two preventive maintenance service calls during such one year period. 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
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 subsidiaries or affiliates, or any of Tenant’s or such subsidiaries’ or
affiliates’ agents, contractors, employees, licensees or invitees (collectively, “Tenant’s
Affiliates”), the cost of which shall be the responsibility of Tenant. Landlord shall never have
any obligation to repair, maintain or replace, pursuant to this subsection 10(b) or any other
provision of this Lease, any Tenant’s Change (as defined in Section 18 hereof).
(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 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 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, however, that Tenant shall repair and restore any damage or injury to the
Demised Premises (to the condition in which the Demised Premises existed prior to such
installation) caused by the installation and/or removal of any such trade fixtures.
13. Signs. No sign, advertisement or notice shall be inscribed, painted, affixed, or
displayed on the windows or exterior walls of the Demised Premises or on any public area of the
Building, except in such places, numbers, sizes, colors and styles as are approved in advance in
writing by Landlord, 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. Reserved
15. Governmental Regulations. Tenant shall promptly comply throughout 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, the Building 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 or a Tenant’s Change, 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)
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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) or a
Tenant’s Change, 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 (i) Tenant’s proportionate share (based on
Tenant’s Operating Expense Percentage) of the portion of such amortized costs attributable to the
remainder of the Term, including any extensions thereof, with respect to any Code Modification
respecting the Building or the Building Common Area, and (ii) the entire portion of such amortized
costs attributable to the remainder of the Term, including any extensions thereof, with respect to
any Code Modification respecting the Demised Premises. Tenant shall promptly send to Landlord a
copy of any written notice received by Tenant requiring a Code Modification.
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 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”).
(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 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 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
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such release shall occur, Tenant shall (i) take all steps reasonably necessary to contain and
control such release and any associated Contamination, (ii) clean up or otherwise remedy such
release and any associated Contamination to the extent required by, and take any and all other actions required under,
applicable Environmental Laws and (iii) notify and keep Landlord reasonably informed of such
release and response.
(f) Regardless of any consents granted by Landlord pursuant to Section 16(d) allowing
Hazardous Substances upon the Demised Premises, Tenant shall under no circumstances whatsoever
cause or permit (i) any activity on the Demised Premises which would cause the Demised Premises to
become subject to regulation as a hazardous waste treatment, storage or disposal facility under
RCRA or the regulations promulgated thereunder, (ii) the discharge of Hazardous Substances into the
storm sewer system serving the Project or (iii) the installation of any underground storage tank or
underground piping on or under the Demised Premises.
(g) Tenant shall and hereby does indemnify Landlord and hold Landlord harmless from and
against any and all expense, loss, and liability suffered by Landlord (except to the extent that
such expenses, losses, and liabilities arise out of Landlord’s own 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. AS-IS. Tenant hereby accepts the Demised Premises AS IS, WHERE IS, and as
suitable for the purposes for which the same are leased hereby and hereby expressly acknowledges
and agrees that Landlord has no obligation to make any improvements to the Demised Premises.
18. Tenant Alterations and Additions.
(a) 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 from, and defend against (with
legal counsel acceptable to Landlord) all liens, claims and liabilities of every kind, nature and
description which may arise out of or in any way be connected with such work. Tenant shall not
permit the Demised Premises to become subject to any mechanics’, laborers’ or materialmen’s lien on
account of labor, material or services furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to have been performed for the
Demised Premises by, or at the direction or sufferance of Tenant and if any such liens are filed
against the Demised Premises, Tenant shall promptly discharge the same; provided,
however, that Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall give to Landlord, within
fifteen days after demand, such security as may be reasonably satisfactory to Landlord to assure
payment thereof and to prevent any sale, foreclosure, or forfeiture of Landlord’s interest in the
Demised Premises by reason of non-payment thereof; provided further that on final determination of
the lien or claim for lien, Tenant shall immediately pay any judgment rendered, with all proper
costs and charges, and shall have the lien released and any judgment satisfied. If Tenant fails to
post such security or does not diligently contest
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xxxx xxxx, Xxxxxxxx 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 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 two hundred seventy (270) days after the date of such damage;
or (ii) destroyed by a casualty which is not covered by Landlord’s insurance, or if such casualty
is covered by Landlord’s insurance but Lender or other party entitled to insurance proceeds fails
to make such proceeds available to Landlord in an amount sufficient for restoration of the Demised
Premises, then Landlord shall give written notice to Tenant of such determination (the
“Determination Notice”) within 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
Landlord, 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:
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(i) if Tenant fails to pay Base Rent or any Additional Rent hereunder as and when such rent
becomes due and such failure shall continue for more than five (5) days
after Landlord gives written notice to Tenant of such failure (provided, however, that if payment
of any Base Rent or Additional Rent required hereunder is by check, and following deposit thereof
such check is rejected or returned due to insufficient funds, then such event shall constitute an
immediate Event of Default and no such five (5) day notice and cure period shall be required);
(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;
(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 promptly thereafter;
(iv) if Tenant permits to be done anything which creates a lien upon the Demised Premises and
fails to discharge or bond such lien, or post security with Landlord acceptable to Landlord within
thirty (30) days after receipt by Tenant of written notice thereof;
(v) if Tenant fails to maintain in force all policies of insurance required by this Lease and
such failure shall continue for more than ten (10) days after Landlord gives Tenant written notice
of such failure;
(vi) if any petition is filed by or against Tenant or any guarantor of this Lease under any
present or future section or chapter of the Bankruptcy Code, or under any similar law or statute of
the United States or any state thereof (which, in the case of an involuntary proceeding, is not
permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days
of 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 costs of recovering possession of the Demised Premises
and all other expenses incurred by Landlord due to Tenant’s default, including, without limitation,
reasonable attorney’s fees; plus (3) the unpaid Base Rent and Additional Rent earned as of
the date of termination plus any interest and late fees due hereunder, plus other sums of money and
damages owing on the date of termination by Tenant to Landlord under this Lease or in connection
with the Demised Premises. The amount as calculated above shall be deemed immediately due and
payable. The payment of the amount calculated in subparagraph (ii)(1) shall not be deemed a
penalty but shall merely constitute payment of liquidated damages, it being understood and
acknowledged by Landlord and Tenant that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. “Treasury Yield” shall mean the rate of return in percent per annum of
Treasury Constant Maturities for the length of time specified as published in document H.15(519)
(presently
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published by the Board of Governors of the U.S. Federal Reserve System titled “Federal
Reserve Statistical Release”) for the calendar week immediately preceding the calendar week in
which the termination occurs. If the rate of return of Treasury Constant Maturities for the
calendar week in question is not published on or before the business
day preceding the date of the Treasury Yield in question is to become effective, then the Treasury
Yield shall be based upon the rate of return of Treasury Constant Maturities for the length of time
specified for the most recent calendar week for which such publication has occurred. If no rate of
return for Treasury Constant Maturities is published for the specific length of time specified, the
Treasury Yield for such length of time shall be the weighted average of the rates of return of
Treasury Constant Maturities most nearly corresponding to the length of the applicable period
specified. If the publishing of the rate of return of Treasury Constant Maturities is ever
discontinued, then the Treasury Yield shall be based upon the index which is published by the Board
of Governors of the U.S. Federal Reserve System in replacement thereof or, if no such replacement
index is published, the index which, in Landlord’s reasonable determination, most nearly
corresponds to the rate of return of Treasury Constant Maturities. In determining the aggregate
reasonable rental value pursuant to subparagraph (ii)(1)(B) above, the parties hereby agree that,
at the time Landlord seeks to enforce this remedy, all relevant factors should be considered,
including, but not limited to, (a) the length of time remaining in the Remaining 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 Remaining 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, 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
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(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 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.
(g) Tenant expressly waives all of the following: (i) the requirement under Chapter 83.12 of
the Florida Statutes that the plaintiff in his distress for rent action file a bond payable to the
Tenant in at least double the sum demanded by the plaintiff, it being understood that no bond shall
be required in any such action; (ii) the right of Tenant under Chapter 83.14 of the Florida
Statutes to replevy distrained property; (iii) in the event of suit by or against Landlord, then
the venue of such suit shall be in the County in which the Building is located, and the Tenant
hereby waives for itself whatever rights it may have in the selection of venue; (iv) trial by jury
in connection with the proceedings or claims brought by either of the parties against the other;
(v) the right of noncompulsory counterclaim in any action brought by Landlord against Tenant for
damages or for possession of the Demised Premises due to nonpayment of Base Rent or other sums
required of Tenant under this Lease; and (vi) the notice requirement set forth in section 83.20 of
the Florida Statutes.
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.
-14-
(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 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, at Tenant’s
request, 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
of Tenant’s obligations hereunder, if any, 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 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 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 a nationally recognized overnight delivery service
providing proof of delivery,
-15-
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. Any
notice required or permitted to be given or served by Landlord or Tenant to this Lease may be given
by either an agent, law firm or attorney acting on behalf of Landlord or Tenant.
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 (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 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. 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.
-16-
(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. Notwithstanding anything to the contrary contained herein, if this Lease is rejected in
any bankruptcy action or proceeding filed by or against Tenant, and the effective date of rejection
is on or after the date upon which that month’s Rent is due and owing, then the Rent owing under
this Lease for the month during which the effective date of such rejection occurs shall be due and
payable in full and shall not be prorated.
(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. Notwithstanding the foregoing, there shall be no renewal of this Lease by operation
of law or otherwise, and, in addition to and without limiting such rights and remedies as may be
available to Landlord at law or in equity as a result of Tenant’s holding over beyond the Term,
Landlord shall be entitled to exercise any and all rights and remedies available to Landlord in
respect of an Event of Default hereunder (it being agreed that any such holdover shall be deemed an
immediate Event of Default hereunder). 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. The provisions of this subsection 30(c) shall survive the expiration of the Term.
31. Relocation. Upon sixty (60) days advance written notice from Landlord to Tenant,
Tenant agrees to relocate to other space in the Building or Project designated by Landlord (the
“New Space”), provided: (i) the New Space is of similar size and similar configuration to the
Demised Premises; (ii) Landlord shall pay all reasonable out-of-pocket expenses in moving Tenant,
its property and equipment into the New Space; and (iii) Landlord shall, at its sole cost, renovate
or alter the New Space to conform substantially with the Demised Premises. If Landlord moves
Tenant to the New Space, every term and condition of this Lease shall remain in full force and
effect, except the Base Rent and Additional Rent shall be adjusted pro rata to reflect any decrease
or increase in the square footage of the Demised Premises, and the New Space shall thereafter be
deemed to be the Demised Premises as though Tenant had entered into an express written amendment of
this Lease with respect thereto.
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 within five (5) days after the due
date therefor, 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”), in order to defray the additional expenses incurred by Landlord as a result of
such late 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 other rules and regulations do not
materially and adversely affect the rights of Tenant hereunder.
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.
-17-
(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.
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.
41. Joint and Several Liability. Where more than one person or entity constitute a
party to this Lease the liability hereunder of such persons or entities shall be joint and several.
-18-
| LANDLORD: | ||||||||
Date: Sept. 7, 2006 |
||||||||
| 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/ Xxxx Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||||||||
Witness (print name):
|
Xxxx Xxxxx | Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | President | |||||||||
/s/ Xxxx X. Hand |
||||||||||
Witness (print name):
|
Xxxx X. Hand | |||||||||
| /s/ Xxxx Xxxxx | Attest: | /s/ Xxxx X. Xxxx | ||||||||
Witness (print name):
|
Xxxx Xxxxx | Name: | Xxxx X. Xxxx | |||||||
| Title: | Assistant Secretary | |||||||||
| /s/ Xxxx X. Hand | [CORPORATE SEAL] | |||||||||
Witness (print name):
|
Xxxx X. Hand | |||||||||
-19-
| TENANT: | ||||||||||
Date: August 29, 2006 |
||||||||||
| NATIONSHEALTH, INC., a Delaware corporation | ||||||||||
/s/ Xxxxxxxx Xxxxxx |
||||||||||
| Witness (print name): | Xxxxxxxx Xxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxx | |||||||||
| Title: | COO | |||||||||
/s/ Xxxxxxx X. Xxxxxx |
||||||||||
Witness (print name):
|
Xxxxxxx X. Xxxxxx | |||||||||
/s/ Xxxxxxxx Xxxxxx |
||||||||||
Witness (print name):
|
Xxxxxxxx Xxxxxx | |||||||||
| Attest: | /s/ X. Xxxxxx | |||||||||
| Name: | X. Xxxxxx | |||||||||
/s/ Xxxxxxx X. Xxxxxx
|
Title: | V.P. Reg. Affairs | ||||||||
Witness (print name):
|
Xxxxxxx X. Xxxxxx | |||||||||
| [CORPORATE SEAL] | ||||||||||
| TENANT: | ||||||||||
Date: August 29, 0000 |
||||||||||
| XXXXXX XXXXXX PHARMACEUTICAL GROUP, L.L.C., | ||||||||||
| a Delaware limited liability company | ||||||||||
| /s/ Xxxxxxxx Xxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx | ||||||||
Witness (print name):
|
Xxxxxxxx Xxxxxx | Name: | Xxxxxx X. Xxxxxxx | |||||||
| Title: | COO | |||||||||
/s/ Xxxxxxx X. Xxxxxx |
||||||||||
Witness (print name):
|
Xxxxxxx X. Xxxxxx | |||||||||
/s/ Xxxxxxxx Xxxxxx |
||||||||||
Witness (print name):
|
Xxxxxxxx Xxxxxx | Attest: | /s/ X. Xxxxxx | |||||||
| Name: | X. Xxxxxx | |||||||||
| Title: | V.P. Reg. Affairs | |||||||||
/s/ Xxxxxxx X. Xxxxxx |
||||||||||
Witness (print name):
|
Xxxxxxx X. Xxxxxx | [CORPORATE SEAL] | ||||||||
-20-
ATTESTATION
Landlord — Partnership:
STATE OF Georgia
COUNTY OF DeKalb
BEFORE ME, a Notary Public in and for said County, personally appeared
Xxxxxxx X.
Xxxxxx and Xxxx X.
Xxxx , known to me to be the
person(s) who, as President and
Asst. Secretary , respectively, of
IDI-GP, Inc., a Georgia corporation, signed
the same, and acknowledged to me that they did so sign said instrument in the name and upon behalf
of said corporation, in its capacity as the managing member of Industrial Properties America-GP,
LLC, a Delaware limited liability company, in its capacity as the sole member of IPF-GP III, LLC, a
Delaware limited liability company, in its capacity as the sole general partner of Landlord, that
the same is their free act and deed and they were duly authorized thereunto by the corporation and
the partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my official seal, this
7th day of Sept. , 2006.
| /s/ Xxxxxxxxx Xxxxxxxx | ||||
| Notary Public |
||||
| My Commission Expires: [Notary Stamp] |
||||
-21-
ATTESTATION
Tenant — Corporation:
STATE OF Florida
COUNTY OF Broward
BEFORE ME, a Notary Public in and for said County, personally
appeared Xxxxxx
Xxxxxxx and Xxxxxx Xxxxxx , known to me to be the
person(s) who, as COO and V.P. Reg. Affairs , respectively,
of NationsHealth, Inc., the corporation which
executed the foregoing instrument in its capacity as Tenant, signed the same, and acknowledged to
me that they did so sign said instrument in the name and upon behalf of said corporation as
officers of said corporation, that the same is their free act and deed as such officers,
respectively, and they were duly authorized thereunto by its board of directors; and that the seal
affixed to said instrument is the corporate seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my official seal, this
29th day of August , 2006.
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Notary Public | ||||
| [Notary Stamp] |
-22-
EXHIBIT A
Demised Premises
a-1
EXHIBIT B
Hazardous Materials Management Plan
b-1
Exhibit 10.4
EXHIBIT C
Special Stipulations
The Special Stipulations set forth herein are hereby incorporated into the body of the lease
to which these Special Stipulations are attached (the “Lease”), and to the extent of any conflict
between these Special Stipulations and the preceding language, these Special Stipulations shall
govern and control.
1. Environmental Matters — Hazardous Materials Management Plan.
(a) The term “Environmental Laws”, as defined in Section 16 of the Lease shall be deemed to
include that certain Hazardous Materials Management Plan for Weston Park of Commerce, prepared by
Xxxxxxx Engineering Inc., dated August 1989 attached hereto as Exhibit B and incorporated
herein (the “Plan”).
(b) As of the Lease Date, Tenant [CHOOSE ONE: believes/does not believe] that Tenant’s use of
the Demised Premises would involve the use, storage or generation of hazardous materials as
described in the Plan. If, as of the Lease Date or at any time during the Term, Tenant’s use of
the Demised Premises involves the use, storage or generation of hazardous materials as described in
the Plan, Tenant shall, at Tenant’s sole cost and expense, (i) within ten (10) days thereafter,
designate a Facility Safety Officer (as described in the Plan) and notify Landlord of the name and
address of such Facility Safety Officer and (ii) otherwise promptly comply with all applicable
provisions of the Plan, including, but not limited to, management activities, design and operating
standards and emergency response provisions. Each year, Landlord or the Association (as defined in
the Plan) may deliver a questionnaire to Tenant to facilitate reporting requirements under the
Plan. Within twenty (20) days of delivery of the questionnaire to Tenant, Tenant shall complete
and execute the questionnaire and return the questionnaire to Landlord or other party designated by
Landlord.
(c) Landlord shall have the right, at Tenant’s sole cost and expense, to conduct such
independent auditing, monitoring and reporting to ensure Tenant’s compliance with the Plan, as
Landlord may deem advisable from time to time. If possible, all costs and expenses incurred as a
result of such independent auditing, monitoring and reporting shall be billed directly to Tenant
and Tenant shall promptly pay such costs and expenses. Any costs and expenses incurred as a result
of such independent auditing, monitoring and reporting that are not billed directly to Tenant shall
be billed to Tenant by Landlord at Landlord’s actual cost. In the event any independent auditing,
monitoring or reporting is performed to ensure not only Tenant’s compliance with the Plan, but any
other tenant’s compliance with the Plan, the costs and expenses of such independent auditing,
monitoring or reporting shall be borne equally by Tenant and such other tenant. Regardless of
whether Landlord inspects or audits Tenant’s operations, Landlord shall not be liable for Tenant’s
violation of the Plan and Tenant’s indemnity of Landlord in Section 16 of the Lease shall apply to
any claim or liability against Landlord arising out of Tenant’s failure to comply with the Plan.
2. Parking: During the Term, Landlord shall make available to Tenant, it’s employees, customers
and visitors forty (40) automobile parking spaces (on an unassigned, non- exclusive basis) in the
parking areas of the Building. Such parking shall be at no additional cost to Tenant.
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EXHIBIT D
Rules and Regulations
These Rules and Regulations have been adopted by Landlord for the mutual benefit and protection of
all the tenants of the Building in order to insure the safety, care and cleanliness of the Building
and the preservation of order therein.
1. The sidewalks shall not be obstructed or used for any purpose other than ingress and
egress. No tenant and no employees of any tenant shall go upon the roof of the Building without
the consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls of the Building.
3. The plumbing fixtures shall not be used for any purpose other than those for which they
were constructed, and no sweepings, rubbish, rags or other substances, including Hazardous
Substances, shall be thrown therein.
4. No tenant shall cause or permit any objectionable or offensive odors to be emitted from the
Demised Premises.
5. The Demised Premises shall not be used for (i) an auction, “fire sale”, “liquidation sale”,
“going out of business sale” or any similar such sale or activity, (ii) lodging or sleeping, or
(iii) any immoral or illegal purposes.
6. No tenant shall make, or permit to be made any unseemly or disturbing noises, sounds or
vibrations or disturb or interfere with tenants of this or neighboring buildings or premises or
those having business with them.
7. Each tenant must, upon the termination of this tenancy, return to the Landlord all keys of
stores, offices, and rooms, either furnished to, or otherwise procured by, such tenant, and in the
event of the loss of any keys so furnished, such tenant shall pay to the Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change.
8. Canvassing, soliciting and peddling in the Building and the Project are prohibited and each
tenant shall cooperate to prevent such activity.
9. Landlord will direct electricians as to where and how telephone or telegraph wires are to
be introduced. No boring or cutting for wires or stringing of wires will be allowed without
written consent of Landlord. The location of telephones, call boxes and other office equipment
affixed to the Demised Premises shall be subject to the approval of Landlord.
10. Parking spaces associated with the Building are intended for the exclusive use of
passenger automobiles. Except for intermittent deliveries, no vehicles other than passenger
automobiles may be parked in a parking space (other than spaces expressly designated on the Plans
for truck parking) without the express written permission of Landlord. Trucks may be parked only
in truck dock positions and in other paved areas expressly designated for such purpose in the
Plans. Trailers may be parked only in paved areas expressly designated for such purpose in the
Plans. Neither trucks nor trailers may be parked or staged in (i) areas adjacent to truck docks,
serving any portion of the Building, which are intended by Landlord for truck maneuvering or (ii)
any driveway, drive aisle or other paved area which provides ingress or egress for cars or trucks
to or from any portion of the Building or any street adjoining the Building.
11. No tenant shall use any area within the Project for storage purposes other than the
interior of the Demised Premises.
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Exhibit 10.4
EXHIBIT E
CERTIFICATE OF AUTHORITY
CORPORATION
CORPORATION
The undersigned, Secretary of NationsHealth, Inc., a Delaware corporation (“Tenant”), hereby
certifies as follows to Industrial Property Fund III, L.P., a Georgia limited partnership
(“Landlord”), in connection with Tenant’s proposed lease of premises in Building D, at Weston
Business Center, Broward County, Florida (the “Premises”):
1. Tenant is duly organized, validly existing and in good standing under the laws of the State
of Delaware, and duly qualified to do business in the State of Florida.
2. That the following named persons, acting individually, are each authorized and empowered to
negotiate and execute, on behalf of Tenant, a lease of the Premises and that the signature opposite
the name of each individual is an authentic signature:
| XXXXX X. XXXXXX | CHIEF EXECUTIVE OFFICER | /s/ Xxxxx X. Xxxxxx | ||
| (name) | (title) | (signature) | ||
| XXXXXXX XXXXXXXXX | CHIEF FINANCIAL OFFICER | /s/ Xxxxxxx Xxxxxxxxx | ||
| (name) | (title) | (signature) | ||
| XXXXXX X. XXXXXXX | CHIEF OPERATING OFFICER | /s/ Xxxxxx X. Xxxxxxx | ||
| (name) | (title) | (signature) |
3. That the foregoing authority was conferred upon the person(s) named above by the Board of
Directors of Tenant, at a duly convened meeting held 8-31 , 2004.
| /s/ Xxxxxxx Xxxxxxxxx | ||||
| Secretary | ||||
| [CORPORATE SEAL] | ||||
CERTIFICATE OF AUTHORITY
COMPANY
COMPANY
The undersigned, Secretary of NationsHealth, Inc., a Delaware corporation (“Tenant”), hereby
certifies as follows to Industrial Property Fund III, L.P., a Georgia limited partnership
(“Landlord”), in connection with Tenant’s proposed lease of premises in Building D, at Weston
Business Center, Broward County, Florida (the “Premises”):
1. Tenant is duly organized, validly existing and in good standing under the laws of the State
of Delaware, and duly qualified to do business in the State of Florida.
2. That the following named persons, acting individually, are each authorized and empowered to
negotiate and execute, on behalf of Tenant, a lease of the Premises and that the signature opposite
the name of each individual is an authentic signature:
| XXXXX X. XXXXXX | CHIEF EXECUTIVE OFFICER | /s/ Xxxxx X. Xxxxxx | ||
| (name) | (title) | (signature) | ||
| XXXXXXX XXXXXXXXX | CHIEF FINANCIAL OFFICER | /s/ Xxxxxxx Xxxxxxxxx | ||
| (name) | (title) | (signature) | ||
| XXXXXX X. XXXXXXX | CHIEF OPERATING OFFICER | /s/ Xxxxxx X. Xxxxxxx | ||
| (name) | (title) | (signature) |
3. That the foregoing authority was conferred upon the person(s) named above by the Board of
Directors of Tenant, at a duly convened meeting held 8-31 , 2004.
| /s/ Xxxxxxx Xxxxxxxxx | ||||
| Secretary | ||||
| [CORPORATE SEAL] | ||||
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