Exhibit 10.37
INDUSTRIAL LONG-TERM LEASE
THIS LEASE, made and entered into this 22nd day of February, 2005 ("EXECUTION
DATE"), by and between DEERWOOD COMMERCE CENTER, LLC, a Florida limited
liability company ("LANDLORD"), and NOVEN PHARMACEUTICALS, INC., a Delaware
corporation ("TENANT") (the terms "LANDLORD" and "TENANT" as used in this Lease
shall include the heirs, legal representatives, successors and assigns of the
parties hereto, wherever and whenever the context so requires or admits),
W I T N E S S E T H :
That Landlord and Tenant, for and in consideration of the mutual covenants
herein contained, and in consideration of the payments and undertakings herein
made and to be made, respectively promise unto, agree and covenant, each with
the other as follows:
ARTICLE 1
PROPERTY DEMISED
Upon the terms and conditions hereinafter set forth, and in consideration of the
payment by Tenant of the rents hereinafter provided, and in consideration of the
prompt performance continuously by Tenant of each and every of the covenants and
agreements hereinafter prescribed by Tenant to be kept and performed, the
performance of each and every one of which is declared to be an integral part of
the consideration to be furnished by Tenant, Landlord does hereby lease, let and
demise unto Tenant, and Tenant hereby leases of and from Landlord (1) all of the
parcel of land, legally described as follows:
▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ OF INDUSTRY, according to the Plat
thereof, as recorded in Plat Book 147, Page 56, of the Public Records
of Miami-Dade County, Florida (the "LAND"),
and (2) all improvements located on the Land, including the building known as
Building II (the "BUILDING"). The Land, Building and other improvements on the
Land are referred to collectively as the "DEMISED PREMISES." The Demised
Premises is situated within Deerwood Commerce Center (the "CENTER"). The site
plan of the Center is attached as EXHIBIT "A". The Building consists of
approximately 72,988 leasable square feet. Promptly after its completion, the
Building will be measured according to BOMA standards of measurement (as
evidenced by the Certification attached hereto as EXHIBIT "B", which Certificate
will be completed upon measurement). The common address of the Demised Premises
is ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
SUBJECT, NEVERTHELESS, TO THE FOLLOWING:
A. Conditions, restrictions, easements, reservations and limitations, if
any there be, now appearing of record;
B. Dedications for public utilities of easements granted or reserved prior
to the Execution Date;
C. Zoning ordinances of Miami-Dade County, Florida, now existing or which
may hereafter exist during the Term of this Lease; and
D. Real Estate Taxes for the year 2005 and subsequent years.
ARTICLE 2
SUBSTANTIAL COMPLETION
2.1 The Building shell will be substantially complete (as defined in
Section 2.2), according to Building specifications set forth in
Landlord's proposal of October 22, 2004, no later than February 1,
2005, at which time Tenant shall have uninterrupted possession of the
Demised Premises and may commence construction of the Tenant
Improvements, as defined in Section 11.1.
2.2 Inasmuch as the Certificate of Occupancy has been issued, "SUBSTANTIAL
COMPLETION" shall occur upon (i) completion of all detail work that is
the responsibility of Landlord; and (ii) approval by Landlord and
Tenant of a punch list that reflects less than five percent (5%) of the
total work that is the obligation or under the control of Landlord.
ARTICLE 3
COMMENCEMENT DATE; SECURITY DEPOSIT
3.1 This Lease shall be effective as of its date of execution ("EFFECTIVE
DATE"). The Term of this Lease (as defined in Article 4) shall commence
on May 22, 2005 ("COMMENCEMENT DATE").
3.2 There is no security deposit payable in connection with this Lease.
ARTICLE 4
TERM OF LEASE
The term of this Lease ("TERM") shall consist of the Initial Term and the Option
Periods (to the extent Tenant exercises its options to renew). The "INITIAL
TERM" shall be for a period of ten (10) years, commencing on the Commencement
Date as established in Article 3, unless this Lease is extended or terminated in
accordance with its terms. The "OPTION PERIODS" are described in Article 30.
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ARTICLE 5
RENT
5.1 TRIPLE NET LEASE. The parties acknowledge that this is a "TRIPLE NET"
Lease, and Tenant is responsible for 100% of all costs in connection
with the Building and the Demised Premises, such that this Lease shall,
except as hereinafter provided to the contrary, yield net to Landlord
the rent, as hereinabove provided, to be paid in each year during the
term of this Lease, and that all costs, expenses and obligations of
every kind or nature whatsoever relating to the Demised Premises, or
any improvements thereon, or as a direct result of Tenant's business
operations, including but not limited to maintenance, utilities, taxes,
documentary stamps (if any) and all risk property and other insurance
relating to the Demised Premises, shall be paid by Tenant, as set forth
more fully herein, and that Landlord shall be indemnified and saved
harmless by Tenant from and against the same. Notwithstanding the
foregoing, Landlord remains responsible for the maintenance of those
items as set forth in Section 14.4 and Section 27.
5.2 PAYMENT OF RENT. Upon execution of this Lease, Tenant shall pay to
Landlord Base Rent and Additional Rent for the first month of this
Lease. All rent shall be payable monthly in advance, in current legal
tender of the United States, as the same is constituted by law at the
time the said rent becomes due, commencing on the Commencement Date,
and on the first day of each and every month thereafter during the
Term. Each "LEASE YEAR" will consist of a 12-month period, commencing
on the Commencement Date and its anniversaries. Rent shall be payable
at such place within the State of Florida as Landlord may specify in
writing, and a place once specified as the place for the payment of
rent shall be such until it shall have been changed by written notice
given unto Tenant by Landlord in the manner hereinafter prescribed for
giving notice.
5.3 BASE RENT.
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5.3.1 Subject to the modification granted under Section 5.4, during
the first Lease Year, Tenant will pay as base rent ("BASE
RENT") for the Demised Premises the sum of $6.40 per square
foot, triple net, in twelve (12) monthly equal installments,
plus applicable sales tax and other rents payable as set forth
hereinbelow. By "TRIPLE NET" the parties intend that Tenant,
in addition to Base Rent and Additional Rent, shall be
responsible for payment of Taxes, insurance and maintenance
for the Demised Premises in accordance with the provision of
this Lease, except such maintenance as this Lease expressly
provides is the responsibility of Landlord.
5.3.2 During each subsequent Lease Year, Base Rent shall increase
annually by three percent (3%) over the Base Rent due for the
immediately preceding Lease Year, payable in twelve (12)
monthly equal installments, plus applicable sales tax and
other rents payable as set forth hereinbelow.
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5.4 ADDITIONAL RENT. In addition, Tenant agrees to pay to Landlord, in
monthly installments, a management fee in an amount equal to one and
one-half percent (1.5%) of the Base Rent ("ADDITIONAL RENT").
5.5 RENT AT DECREASED RATE. Provided this Lease is in good standing at all
times material hereto, Tenant's obligation to pay Base Rent is modified
such that Tenant shall pay Base Rent for the first Lease Year at the
rate of $3.20 per square foot.
ARTICLE 6
TAXES
6.1 Landlord represents that the Demised Premises are separately assessed.
Landlord and Tenant shall file such forms as needed so that, during the
Term, bills for Taxes due on the Demised Premises will be sent directly
to Tenant by the taxing authority. Tenant covenants and agrees with
Landlord that Tenant will promptly pay, during the Term, all taxes
levied or assessed at any or all times during the Term by any and all
taxing authorities, including not only ad valorem and real and personal
property taxes but also liens for public improvements and including, in
general, all taxes, tax liens or liens in the nature of taxes which may
be assessed or imposed against the Demised Premises, including the land
and all buildings, furniture, fixtures and improvements now or
hereafter thereon (collectively, "TAXES"). In the event any of said
taxes or assessments are payable according to their terms in
installments, then Tenant shall have the right to pay the same as such
installments fall due and shall only be obligated to pay such
installments as fall due during the Term.
6.2 The parties understand and agree that Tenant shall pay the Taxes, and
shall deliver to Landlord official receipts evidencing such payments at
the place at which rental payments are required to be made, which
payment of Taxes shall be made on or before the said Tax itself would
become delinquent in accordance with the law then in force, covering
the payment of such Tax or Taxes. Tenant shall have the right but not
the obligation to contest the validity of any Tax or Tax claim provided
that Tenant shall furnish a bond or other customary security to insure
that such contested Tax shall not become delinquent or result in the
imposition of a lien for delinquent Taxes. Tenant shall promptly
furnish Landlord with receipts evidencing the timely payment of Taxes
or the establishment of a bond or other security for payment of
contested taxes. Notwithstanding the foregoing, Tenant has option to
pay the Taxes directly to Landlord. In such case, Tenant shall so
notify Landlord on or before October 15 of each year, and Tenant shall
tender the full amount due on or before the date of payment, together
with sales tax thereon, not less than fourteen (14) days before
expiration of the payment amount. If Tenant pays the Taxes directly to
Landlord, Landlord is responsible for the payment of the Taxes.
6.3 Nothing in this Article 6 contained shall obligate Tenant to pay any
income, inheritance, estate or succession tax, or any tax in the nature
of any such described taxes, or any other tax which may be levied or
assessed against Landlord with respect to, or because of, the
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income derived from this Lease, nor shall Tenant be deemed obligated
hereby to pay any corporation, franchise or excise taxes which may be
assessed or levied against any corporate successor or transferee of, or
claiming under Landlord. Tenant shall be responsible for and shall pay
all of the Taxes assessed of Tenant's personal property and Tenant
Improvements.
6.4 In the event Tenant desires to contest the validity of any Tax or tax
claim, Tenant may do so provided Tenant has complied with the terms of
this Article 6. Further, should either Landlord or Tenant contest the
validity of any tax or tax claim, in compliance with the terms of this
Article, the other party agrees to cooperate fully toward such contest,
provided that the contesting party assumes all costs and other
obligations in connection therewith.
ARTICLE 7
COMMON AREAS
7.1 "COMMON AREAS" shall mean all areas, space, installations and equipment
in the Center, but not within the Demised Premises, which are intended
by Landlord for the common use and benefit of Landlord, as well as the
remaining tenants of the Center, their employees, agents, licensees,
customers and other invitees, including without limitation parking
areas, exits, signs, lighting, entrances, access roads, driveways,
sidewalks, utilities and landscaped areas (including but not limited to
irrigation). Landlord shall have exclusive control over the Common
Areas. Landlord represents and warrants that it has obtained and shall
maintain in effect all governmental permits for the construction and
operation of the Common Areas, including parking, ingress and egress,
drainage and water retention.
7.2 Tenant may erect a fence around the perimeter of the Demised Premises,
subject to governmental approvals and applicable set-back requirements.
7.3 Tenant is responsible for maintaining all portions of the Demised
Premises, including but not limited to parking areas, except as set
forth herein to the contrary herein.
7.4 Landlord hereby grants to Tenant, its licensees, subtenants,
concessionaires, successors and assigns, and its and their employees,
agents, licensees, customers, and invitees the non-exclusive right to
use the Common Areas during the Term and any extensions of same
continuously and without interruption, for access purposes (i.e.,
ingress and egress) only.
ARTICLE 8
MAINTENANCE OF COMMON AREAS
AND COMMON AREA COSTS
Landlord shall maintain the Common Areas in clean condition and repair,
including but not limited to: (i) maintaining all signs, landscaped areas, and
parking areas and access roads (including restriping, repairing and repaving
same when required, and removing any rubbish
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therefrom) in good condition and repair; (ii) adequately illuminating the
parking areas and other Common Areas during such hours as Landlord may deem
appropriate; (iii) replacing all parking surfaces and paving within the Common
Areas as and when reasonably required; and (iv) providing adequate security
lighting and fire protection as required by applicable code or ordinance or as
required by insurance underwriters.
ARTICLE 9
LANDLORD'S LIEN FOR RENT
Except as herein set forth to the contrary, Landlord shall have the first lien,
paramount to all others, on every right and interest of Tenant in and to this
Lease and on the improvements which may be placed upon the Demised Premises,
which lien is granted for the purpose of securing the payment of rents, taxes,
assessments, charges, liens, penalties and damages herein covenanted to be paid
by Tenant, and for the purpose of securing the performance of all and singular
the covenants, conditions and obligations of this Lease to be performed and
observed by Tenant. Landlord shall have no lien on trade fixtures or equipment
of any nature, whether attached or unattached, which is used by Tenant in the
conduct of its business, or on Tenant's inventories, supplies, furniture and
other personal property (collectively, "NOVEN PROPERTY").
ARTICLE 10
CONDITION OF DEMISED PREMISES
10.1 Subject to completion by Landlord of all punch list items, Tenant is
accepting the Demised Premises in "as is" condition, except as to
latent defects and warranted items. Tenant acknowledges that Landlord
makes no representations regarding the physical condition of the
Demised Premises, except as set forth in Section 10.2 or in Article 27
hereinbelow.
10.2 Upon acceptance of the Demised Premises by Tenant, Landlord shall
assign to Tenant the warranties from the various subcontractors as set
forth in EXHIBIT "C" attached hereto.
ARTICLE 11
TENANT IMPROVEMENTS; TI ALLOWANCE
11.1 All improvements to the Demised Premises performed by Tenant after the
Demised Premises are substantially complete (the "TENANT IMPROVEMENTS")
shall be performed by Tenant at Tenant's sole expense. Notwithstanding
the foregoing, Landlord shall provide to Tenant a tenant improvement
allowance ("TI ALLOWANCE") of $912,300.00 toward the construction of
the Tenant Improvements. The TI Allowance will be paid to Tenant in
installments as the Tenant Improvements are completed upon presentation
to Landlord of actual paid receipts for work in place as of the date of
Tenant's request for a progress payment. If Landlord sells or transfers
its interest in this Lease or in the Demised Premises before Tenant has
received the entirety of the TI Allowance, then, at the closing of such
sale or transfer Landlord shall deposit in escrow with a reputable
title company or other escrowee acceptable to Landlord and Tenant, an
amount equal to the
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undisbursed portion of the TI Allowance. Tenant shall be entitled to
draw upon such escrowed funds in the manner provided in this Section
11.1 for progress payments from Landlord.
11.2 Tenant has the right to specify the utilization of its designated
architect for all space planning, mechanical, electrical and plumbing
plans, construction documents and construction supervision of the
Demised Premises. Tenant also has the right to specify the utilization
of its designated general contractor for all construction on the
Demised Premises.
11.3 Tenant acknowledges that Tenant has obtained or shall obtain all
required permits to construct the Tenant Improvements and place all
signs permitted under the terms of this Lease. Tenant shall keep the
Building secure and shall provide that any of the Tenant Improvements
it performs shall be executed in a good and workmanlike manner.
Tenant's failure to commence and/or complete construction of the Tenant
Improvements for any reason shall not excuse or ▇▇▇▇▇ Tenant's
obligation to pay rent or other expenses due in connection with this
Lease, except if Tenant is prevented from commencing and/or completing
construction due to Landlord's acts or omissions. If Tenant believes
that Tenant cannot perform under this Section due to Landlord's act or
omission, Tenant shall give immediately notice to Landlord so that
Landlord may cure same.
11.4 Subject to Landlord's reasonable approval, Tenant shall have the
option, at its sole cost and expense, to install and operate up to four
satellite antenna dishes and other telecommunication equipment and
cables thereto on the roof of the Building at no additional charge.
Subject to the rights of other property owners, tenants, and
governmental authorities, and so long as, in Landlord's reasonable
judgment, Landlord's other property is not adversely affected, Landlord
agrees to grant Tenant easement rights, within existing easements, in
order for Tenant to run cabling between the Building and Tenant's other
location within the Deerwood Park of Industry.
11.5 Tenant acknowledges that all Tenant Improvements and other improvements
in the Building (other than Noven Property) shall be and become a part
of the real estate and upon the termination of this Lease, either by
reason of an Event of Default or by ordinary lapse of time, shall pass
to Landlord, without the necessity for Landlord to pay any compensation
therefor whatsoever. Provided Tenant is not in default of this Lease,
Tenant has the right to remove all Noven Property and to leave the
Demised Premises in their original condition, with all Tenant
Improvements, broom clean, upon the termination or expiration of this
Lease. Notwithstanding the foregoing, Tenant shall not under any
circumstances remove any HVAC equipment installed in the Building.
11.6 Subject to the criteria set forth herein, Tenant may, at Tenant's
expense, install identification signs on the main south facade of the
Building, on the east facade of the Building, and, subject to
Landlord's reasonable approval and governmental approvals, on a
monument sign. Tenant may also install such directional and safety
signs as reasonably necessary within the Demised Premises. Tenant
acknowledges that the Demised
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Premises are part of the Center, and Tenant therefore agrees that all
proposed signs to be installed on the exterior of the Building or on
any other exterior part of the Demised Premises must first be submitted
to Landlord for Landlord's consent, not to be unreasonably withheld, to
insure that such signage conforms to Landlord's requirements and meets
the standards established for the Center as set forth on EXHIBIT "D".
Landlord's consent shall not be unreasonably withheld. All signage on
the Demised Premises shall be installed at the sole expense of Tenant.
All such signs shall be in accordance with all applicable laws,
ordinances and governmental regulations. Landlord shall have fifteen
(15) days from receipt of such plans to approve or reject same. In the
event Landlord fails to notify Tenant that it does not approve such
plans, it shall be presumed that the plans are approved. In the event
Landlord rejects said plans, Landlord shall so notify Tenant of the
reason for the rejection, and Tenant shall have ten (10) days from
receipt of the notice of rejection in which to advise Landlord of its
intention to revise the proposed signs accordingly and an additional
thirty (30) days thereafter in which to deliver new plans to Landlord.
ARTICLE 12
UTILITIES
Landlord has brought all utilities (including water, sewer, electric and
telephone) to the Building. Landlord represents that it has paid all tap-in
fees, impact fees and other fees required to bring such utility service to the
Building and enable its occupant to use such service. Any fees in excess of
those already paid by Landlord for use of utilities shall be borne by Tenant.
Landlord has installed (or caused to be installed) at least one separate meter
for each utility serving the Demised Premises. If Tenant desires to obtain an
additional separate utility meter for any utility, then Tenant shall bear the
cost of installing such additional meters. Tenant shall be responsible to pay
directly the applicable utility companies or governmental agencies for all
utilities consumed by Tenant, including the FPL house meter installed in the
Building.
ARTICLE 13
INSURANCE
13.1 Tenant covenants and agrees to maintain flood insurance in the highest
amount available, as well as commercial general liability covering the
Demised Premises and naming Landlord and Landlord's mortgagee as
additional insureds with a minimum single limit of $1,000,000.00 with
not less than a $3,000,000.00 annual aggregate. Tenant shall keep in
force workers' compensation or similar insurance to the extent required
by law. Tenant shall maintain and carry all risk (Special Form)
casualty insurance on the Demised Premises and the Building for their
respective full replacement values including Tenant Improvements but
excluding footings and foundations, or $4,000,000.00, whichever is
greater, providing the protection provided above and naming Landlord
and Landlord's mortgagee as additional insureds as their interests may
appear. In addition, Tenant shall separately insure the replacement
cost of all Tenant Improvements, naming Landlord and Landlord's
mortgagee as additional insureds. Tenant shall also carry business
interruption insurance naming Landlord as a loss payee with respect to
any
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period of reconstruction following a casualty loss. Tenant shall
provide to Landlord evidence of continuous insurance coverage at all
times throughout the Term.
13.2 From the inception of any construction as hereinafter referred to or as
hereinabove set forth which Tenant may effect on the Demised Premises,
Tenant will at all times carry or cause to be carried builder's risk
insurance policies in compliance with the various insurance provisions
of this Lease, or as may be reasonably required by Landlord.
13.3 In the event the Demised Premises are damaged by flood, fire, windstorm
or other casualty (the "Casualty"), Landlord shall repair such damage
and complete such repair within eighteen (18) months from the time when
the Casualty occurred, or the insurance proceeds are paid, whichever is
later, to base Building standards only, upon the same general plans and
dimension as before the Casualty, or other plan to be agreed upon, in
writing, by Landlord and Tenant, respectively, the reconstruction so
rebuilt and repaired to be of the same value as the Building on the
Demised Premises prior to such damage or destruction; provided,
however, that if construction is delayed because of changes, deletions,
or additions in construction requested by Tenant, strikes, lockouts,
casualties, acts of God, war, material or labor shortages, governmental
regulation or control or other causes beyond the control of Landlord,
the completion time shall be extended accordingly, and Landlord shall
not be liable for such delays. If Landlord elects to repair or rebuild
the Building, as set forth herein, then Landlord and Tenant shall
execute such documents as necessary to enable the use of insurance
proceeds for the costs of such repair or rebuilding. If the Casualty
shall render the Demised Premises untenantable, in whole or in part,
and such casualty was not caused by a negligent or willful act of
Tenant, an equitable abatement in rent shall be allowed from the date
when the damage occurred until the date when the Demised Premises are
substantially repaired by Landlord, and Tenant shall cause its rent
loss coverage benefits to inure to and be paid to Landlord. Upon notice
by Landlord that the Leased Premises are substantially repaired,
Tenant, at Tenant's cost and expense, shall diligently perform such
work required to restore the Leased Premises for Tenant's use as it
existed immediately prior to the Casualty. If such Casualty damages the
Building to the extent that 75% or more of the Building is damaged or
if the damage or destruction is not covered by insurance or if such
Casualty occurs during the last 12 months of the Lease Term, Landlord
may, in lieu of repairing, restoring or rebuilding the same, terminate
this Lease within sixty (60) days after occurrence of the event causing
the damage. In such event, the obligation of Tenant to pay Rent and
other charges hereunder shall end as of the latter of date of the
Casualty and the date Tenant vacates the Leased Premises. If such
Casualty damages the Building to the extent that 75% or more of the
Building is damaged and renders the Building untenantable and such
Casualty was not caused by a negligent or willful act of Tenant, and if
such Casualty occurs during the last 12 months of the Lease Term,
Tenant may terminate this Lease within sixty (60) days after such
occurrence and the obligation of Tenant to pay Rent and other charges
hereunder shall end as of the latter of such notification date and the
date Tenant vacates the Leased Premises.
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13.4 Even if Tenant is self-insured, all of the foregoing insurance policies
required pursuant to this Article shall be written with companies
having a Best Rating of A or better which are licensed to do business
in the state in which the Demised Premises are located and shall
provide that the other party hereto shall be given a minimum of thirty
(30) days' written notice by any such insurance company prior to the
cancellation, termination or alteration of the terms or limits of such
coverage. Each party shall deliver to the other party hereto the
foregoing insurance policies or certificates thereof prior to the
tender of possession of the Demised Premises to Tenant and evidence of
all renewals or replacements of same not less than thirty (30) days
prior to the expiration date of such policies. All such policies may be
maintained under a "blanket insurance policy" of Landlord or Tenant, in
which case the certificate of blanket insurance will be limited to this
location.
13.5 Tenant covenants and agrees with Landlord that Tenant will pay the
premiums for all of the insurance policies which Tenant is obligated to
carry under the terms of this Lease and will deliver to Landlord
evidence of such payment before the Commencement Date and before
payment of any such premiums become in default; and Tenant will cause
renewals of expiring policies to be written and certificates thereof,
as the Lease may require, to be delivered to Landlord.
13.6 Throughout the Term, Landlord shall maintain the following insurance
with respect to the Center and the Common Areas and shall furnish
Tenant from time to time with certificates of insurance evidencing such
coverage is continuously in effect:
13.6.1 A commercial general liability policy of insurance against
claims for bodily injury, personal injury and property damage
based upon, involving or arising out of the ownership, use,
occupancy or maintenance of the Common Areas and all areas
appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less
than $1,000,000.00 and a general aggregate coverage of
$2,000,000.00.
13.6.2 Fire insurance in the amount of $50,000.00.
13.7 Tenant and Landlord hereby release each other and anyone claiming
through or under the other by way of subrogation or otherwise from any
and all liability for any loss of or damage to property, whether caused
by the negligence or fault of the other, to the extent of any recovery
made by the parties hereto for such loss or damage under any casualty
or other insurance policy now or hereafter issued covering the
Building, the Demised Premises or the Center. In addition, Tenant and
Landlord shall cause each such insurance policy carried by them
insuring the Building, the Demised Premises or the Center or the
contents thereof, to be written to provide that the insurer waives all
rights of recovery by way of subrogation against the other party hereto
in connection with any loss or damage covered by the policy.
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ARTICLE 14
MAINTENANCE AND REPAIRS
14.1 Except for Landlord's obligations set forth in paragraph 14.4, Tenant
covenants and agrees that, during the Term, it will at all times, and
at its own expense, keep the Building and improvements situated on the
Demised Premises at any time, in good repair, order and condition, and
shall at all times, save and keep Landlord free and harmless from any
and all damage and liability occasioned by the use of the Demised
Premises and shall indemnify and hold harmless Landlord from and
against any loss, cost, damage and expense arising out of and in
connection with the Building and improvements upon the Demised
Premises, and out of any accident causing injury to any person or
property whomsoever or whatsoever and due directly or indirectly to the
use or occupancy of said premises. Tenant shall maintain, at its sole
expense, in good repair the interior walls and partitions, and all
non-structural portions of the Building, and all plumbing, electrical,
sewage and heating, ventilating and air conditioning ("HVAC")
equipment, lines and ducts in the Building. Without limiting Tenant's
obligations hereunder, Tenant shall, at its sole expense, be
responsible for interior, non-structural repairs to the Building,
including the replacement of plate glass and the repair of component
systems serving only the Building unless any such repairs or
replacements are necessitated by damage caused by the wrongful acts or
negligence of Landlord, its employees, agents and contractors. Except
as set forth in paragraph 14.4 below, Landlord shall have no repair
obligations unless any such repairs are necessitated by damage caused
by the wrongful acts or negligence of Landlord, its employees, agents
and contractors.
14.2 Tenant shall have the right to make from time to time, at its expense,
interior, non-structural alterations to the Building, including normal
roof penetrations for HVAC equipment, electrical and telecommunication
equipment, without obtaining Landlord's consent provided that such
alterations do not impair the structural integrity or diminish the
value of the Building. Prior to making any structural alterations to
the Demised Premises, Tenant shall obtain Landlord's prior written
consent, which consent shall not be unreasonably withheld as long as
the proposed alteration does not, in Landlord's reasonable judgment,
decrease the value or integrity of the Building. Landlord agrees to
notify Tenant of its decision regarding the approval of the plans
within seven (7) days from the receipt of same. All alterations,
additions and improvements made by Tenant to the Demised Premises
("BETTERMENTS AND IMPROVEMENTS") whether initially or a later date
shall comply with all applicable codes and ordinances and shall become
the property of Landlord upon the termination of this Lease without any
compensation to Tenant. Such betterments and improvements shall be
surrendered upon termination of this Lease as a part of the Demised
Premises. Tenant shall deliver as-built plans of all betterments and
improvements to Landlord promptly upon completion thereof. Tenant shall
deliver a blue line copy of remodel plans of all betterments and
improvements to Landlord upon completion thereof.
14.3 Any Noven Property that Tenant installs in the Demised Premises at its
expense prior to or during the Term shall remain Tenant's property and
may be removed by Tenant provided that Tenant repairs any material
damage to the Building and Demised Premises caused by such removal at
Tenant's sole cost and expense, ordinary wear and tear excepted.
11
14.4 Notwithstanding the foregoing, Landlord shall maintain at all times,
and at its own expense, the Common Areas and the roof (including
gutters and downspouts) and structure of the Building in good repair,
order and condition and shall indemnify and hold harmless Tenant from
and against any loss, cost, damage and expense arising out of the
failure to maintain such roof, Building structure or Common Areas in
good repair, order and conditions. Notwithstanding the provisions of
Paragraph 14.1 and 14.2, Tenant shall have the right to make emergency
repairs to prevent injury to persons or damage to property or where
required by law, governmental authority or insurance underwriter.
Tenant shall provide Landlord with such notice as is commercially
reasonable under the circumstance of such emergency.
ARTICLE 15
WARRANTY OF TITLE; LANDLORD'S AUTHORITY
Landlord hereby warrants, represents and covenants to Tenant that: (1) at the
time of the execution of this Lease and until this Lease or other instrument
giving constructive notice of this Lease is recorded, Landlord is the sole owner
in fee simple absolute of the Demised Premises; (2) at the time of the execution
by Tenant of this Lease and until this Lease or other instrument giving
constructive notice of this Lease is recorded, Landlord has good and marketable
fee simple title to the Demised Premises free and clear of all liens and
encumbrances subject only to the permitted exceptions set forth in EXHIBIT "E"
attached hereto; (3) Landlord does warrant and will defend the title to the
Demised Premises; and (4) Landlord has full right and power to execute this
Lease.
ARTICLE 16
MUTUAL INDEMNIFICATION AGAINST LIABILITY
16.1 Tenant covenants and agrees with Landlord that, during the entire Term,
Tenant will indemnify and save harmless Landlord against any and all
claims, debts, demands or obligations which may be against Landlord or
against Landlord's title in the Demised Premises, arising by reason of
or in connection with any alleged act or omission of Tenant or any
person claiming under, by or through Tenant; and if it becomes
necessary for Landlord to defend any action seeking to impose any such
liability, Tenant will pay Landlord all costs of court and attorney's
fees incurred by Landlord in effecting such defense in addition to any
other sums which Landlord may be called upon to pay by reason of the
entry of a judgment against Landlord in the litigation in which such
claim is asserted.
16.2 Landlord covenants and agrees with Tenant that, during the entire Term,
Landlord will indemnify and save harmless Tenant against any and all
claims, debts, demands or obligations which may be against Tenant,
arising by reason of or in connection with any alleged act or omission
of Landlord or any person claiming under, by or through Landlord; and
if it becomes necessary for Tenant to defend any action seeking to
impose any such liability, Landlord will pay Tenant all costs of court
and attorney's fees incurred by Tenant in effecting such defense in
addition to any other sums which Tenant may be called upon to pay by
reason of the entry of a judgment against Tenant in the litigation in
which such claim is asserted.
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ARTICLE 17
PREMISES TO BE USED FOR LEGAL PURPOSES ONLY
17.1 Tenant covenants and agrees that during the Term, it will conform to
and observe all ordinances, rules, laws and regulations of the
municipality in which the Demised Premises are located, Miami-Dade
County, the State of Florida and the United States of America, and all
public authorities, boards or officers, relating to the Demised
Premises, or improvements upon the same (except as provided in Section
17.2), or use thereof, and will not during the Term permit the same to
be used for any illegal purpose, business or occupation.
17.2 Landlord covenants and agrees that during the Term, it will conform to
and observe all ordinances, rules, laws and regulations of the
municipality in which the Demised Premises are located, Miami-Dade
County, the State of Florida and the United States of America, and all
public authorities, boards or officers, relating to the roof, Building
structure and Common Areas, or use thereof, and will not during the
Term permit the same to be used for any illegal purpose, business or
occupation.
ARTICLE 18
USE AND ASSIGNMENT
18.1 Tenant shall use the Demised Premises for the purpose of a
pharmaceutical company or any other lawful uses or purposes.
18.2 Tenant may assign or transfer this Lease or enter into a sublease to a
creditworthy assignee. An assignee shall be deemed creditworthy if (A)
it is an affiliate of Tenant; or (B) it is a successor to Tenant by
merger, consolidation or acquisition; or (C) it has a net worth equal
to or greater than the net worth of Tenant as of the Execution Date. No
assignment or sublease shall release Tenant from its obligations under
this Lease. Any permitted assignment shall be subject and subordinate
to any mortgages on the Center.
ARTICLE 19
SUBORDINATION
19.1 Tenant shall, upon written request of Landlord, subordinate this Lease
to the lien of any future mortgage upon the Demised Premises or the
Center, provided that the holder of any such mortgage (the "MORTGAGEE")
shall enter into a written agreement ("SNDA"), in the form attached
hereto as EXHIBIT "F", with Tenant providing that (i) in the event of
foreclosure or other action taken under the mortgage by Mortgagee, this
Lease and all of the rights of Tenant hereunder, shall not be
disturbed, but shall continue in full force and effect so long as
Tenant complies in all material respects with the terms of this Lease;
(ii) such Mortgagee shall permit insurance proceeds and condemnation
awards to be used for any restoration and repair required by this
Lease. As used in this Lease, "MORTGAGE" shall include mortgages, deeds
of trust, deeds to secure debt or other similar instruments,
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and any modifications, extensions, renewals and/or replacements of
same. Notwithstanding the foregoing, this provision shall be
self-operative.
19.2 It is understood by Tenant that, in the event Tenant should place a
mortgage on its leasehold interest, then such mortgage shall be
subordinate and inferior to this Lease and Landlord's interest therein,
as well as to any mortgage encumbering Landlord's interest in the
Demised Premises or in any portion of the Center. However, nothing in
this Lease contained shall ever be construed as empowering Tenant to
encumber or cause Landlord to encumber the title or interest of
Landlord, except as herein expressly provided.
19.3 Should Landlord sell, convey or transfer its interest in the Demised
Premises or should any mortgagee of Landlord succeed to Landlord's
interest through foreclosure or deed in lieu thereof, then Tenant shall
attorn to such succeeding party as its Landlord under this Lease
promptly upon any such succession, provided that such succeeding party
assumes, in a written agreement reasonably acceptable to Tenant, all of
Landlord's duties and obligations under this Lease. This provision
shall be self-operative.
ARTICLE 20
LANDLORD'S INTEREST NOT SUBJECT TO MECHANIC'S LIENS
20.1 It is hereby stipulated and agreed by and between the parties hereof
that during the Term, there shall be no mechanic's lien upon Landlord's
interest in the Demised Property and in the buildings and improvements
which may be located thereon, arising through an act of Tenant, or any
person claiming under, by or through Tenant; and that no person who
furnishes labor, work, services or materials to the Demised Premises,
and claiming directly or indirectly through or under the Lease, or
through or under any act or omission of Tenant, shall ever become
entitled to a lien which is superior in rank and dignity to that of
this indenture reserved to Landlord upon the lands hereby demised, or
upon any improvements now or hereafter situate thereon, or upon any
insurance policies or insurance money aforesaid, for or on account of
any material or thing whatsoever, and nothing in this indenture
contained shall be construed in such a way as to contradict this
provision in this indenture. All persons furnishing any such labor or
materials to Tenant, or to the Demised Premises at Tenant's order, or
at the order of any person dealing directly or indirectly with Tenant,
as well as all persons whomsoever, shall be bound by this provision and
by notice thereof from and after the date of this indenture, and all
materialmen, contractors, mechanics and laborers are hereby charged
with notice that they must look to Tenant and Tenant's interest only in
the Demised Premises, and Tenant's interest in all buildings and
improvements thereon located, to acquire the payment for any bills for
work done or materials furnished or performed during the Term.
20.2 Tenant shall have no authority to create any lien for labor or material
upon Landlord's interest in the Demised Premises, and neither Tenant,
nor anyone claiming by, through or under Tenant, shall have any right
to file and place any labor or material lien of any kind or character
whatsoever upon the Demised Premises and the buildings and improvements
which may be located thereon so as to encumber or affect the title of
Landlord in said
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land, and the buildings and improvements thereon located, and all
persons contracting with Tenant, directly or indirectly, or with any
person who, in turn, in contracting with Tenant, for the erection,
construction, installation, alteration or repair of any building,
buildings or other improvements, or for the destruction or removal of
any building or buildings upon the Demised Premises, including
furnishings and fixtures, and all materialmen, contractors, mechanics
and laborers, as heretofore mentioned, are hereby charged with notice
that as and from the date of this instrument, they must look to Tenant
and Tenant's interest only in and to the Demised Premises, to secure
the payment of any ▇▇▇▇ for work done or materials furnished or
performed, during the Term.
20.3 The term "MECHANIC'S LIEN" as used herein, means any lien which might
otherwise be claimed by reason of, in connection with or under the
terms of the uniform mechanics' lien act of the State of Florida, as it
now exists, or as it may hereafter exists, or as it may be amended from
time to time.
20.4 The mere fact of the existence of a mechanic's lien or materialmen's
lien or other lien, attachment, judgment, execution, writ, charge or
encumbrances suffered or caused by Tenant, however, shall not, of
itself, constitute a default or operate as a forfeiture or termination
of this Lease, provided, however, that Tenant, within thirty (30) days
after receipt of written notice of lien from the lienor, shall cause
the same to be canceled, released and extinguished, or the Demised
Premises released therefrom by the posting of bond, or by any other
method prescribed by law or Tenant shall provide a title indemnity with
respect to such lien. Tenant shall furnish Landlord with proper
evidence of such extinguishments, bond or title indemnity. If Tenant
disputes the amount or validity of any mechanic's or materialmen's lien
claimed, or any other claim asserted, then Tenant shall, with all due
diligence, institute or defend an appropriate action of proceeding in a
court or courts of competent jurisdiction upon the cause of action, and
shall, by injunction, due defense of the suit, or otherwise, prevent
any sale or impairment of the title of Landlord, and shall prosecute or
defend such action or proceeding with reasonable diligence to a final
determination. Upon relieving the Demised Premises of such claim,
Tenant shall have the duty of furnishing the evidence thereof unto
Landlord. If Tenant is in default of its obligations under this
Paragraph 20.4, then Landlord, in addition to all other available
rights and remedies, and upon seven (7) days notice to Tenant, may
discharge the lien of record by payment, bonding or otherwise, as
Landlord may elect, and upon request Tenant will reimburse Landlord for
all costs and expenses so incurred by Landlord plus interest thereon at
the rate set forth in Section 32.3.
ARTICLE 21
LANDLORD'S RIGHT OF ENTRY
Landlord acknowledges that Tenant's business includes the manufacture, testing
and storage of pharmaceutical products which are subject to governmental
regulation, require strict protocols to insure the integrity and safety of the
manufacturing and storage processes, and in many cases involve valuable,
proprietary and confidential trade secrets. Landlord and its agents shall have
the right to enter upon the Demised Premises at all reasonable times to examine
the condition
15
and use thereof, subject to the following conditions: (i) Landlord shall not be
permitted more than two (2) such entries in any calendar year, provided that if
Landlord is in good faith attempting to refinance or sell the Demised Premises,
or to lease the Demised Premises during any period in which Tenant has failed to
exercise a renewal option or within six months prior to the termination of this
Lease, Landlord shall be entitled to a reasonable number of visits in connection
with such sale, refinancing or leasing; (ii) such entries shall be permitted
upon reasonable written notice of no less than one business day; (iii) such
entries shall be permitted only at reasonable times; (iv) all persons
participating in such entry shall be bound by a confidentially agreement--in
writing if required by Tenant--and shall take no photographs or other recordings
of the interior of the Building; (v) all persons participating in such entry
shall agree to be bound by Tenant's rules and regulations concerning visitors to
the site including those relating to safety and confidentiality; (vi) all
persons participating in such entry shall agree to be subject to rules and
regulations of any governmental authority having jurisdiction over the Demised
Premises or Tenant's business operations; and (vii) some designated areas within
the Demised Premises may not subject to entry by Landlord.
ARTICLE 22
CONDEMNATION CLAUSE
22.1 If after the execution of this Lease and prior to the expiration of the
term hereof, the whole of the Demised Premises shall be taken under
power of eminent domain by any public or private authority, or conveyed
by Landlord to said authority in lieu of such taking, then this Lease
and the Term shall cease and terminate as of the date of such taking.
22.2 If, after the execution of this Lease and prior to the expiration of
the Term, any taking under the power of eminent domain by a public or
private authority or any conveyance by Landlord in lieu thereof, shall
result in:
22.2.1 A taking of the Building, in whole or in part, on the Demised
Premises, or
22.2.2 A reduction of the parking area in the Demised Premises below
the amount required by governmental regulation, or
22.2.3 A partial taking which results in preventing access to any
part of the Demised Premises.
22.2.4 A partial taking which results in cutting off indirect access
from the Demised Premises to any public street or results in
the permanent closing or relocation of any street adjoining
the Demised Premises to which there is indirect access to and
from the Demised Premises; or
22.2.5 A taking which materially impairs or adversely affects
Tenant's use of the Demised Premises, and Landlord is unable
to promptly provide Tenant with a suitable alternate means of
access, in Landlord's reasonable opinion,
16
then Tenant may, at its election, terminate this Lease by giving
Landlord notice of the exercise of Tenant's election within ninety (90)
days after Tenant shall receive written notice from Landlord of such
taking. In the event of termination by Tenant under the provisions of
this Article, this Lease and the Term shall cease and terminate as of
the date of such taking, subject to the right of Tenant, at its
election, to continue to occupy the Demised Premises, subject to the
terms and provisions of this Lease, for all or such part, as Tenant may
determine, of the period between the date of such taking and the date
when possession of the Demised Premises shall be taken by the
appropriating authority, and any unearned rent or other charges, if
any, paid in advance by Tenant shall be refunded to Tenant.
22.3 In the event of a taking in respect of which Tenant shall not have the
right to elect to terminate this Lease or, having such right, shall not
elect to terminate this Lease, this Lease and the Term shall continue
in full force and effect and Landlord, shall to the extent of the
condemnation award restore the remaining portions of the Common Areas
and the Building, including any and all improvements made theretofore,
together with the remaining portions of the parking areas, to an
architectural whole in substantially the same condition that the same
were in prior to such taking. Should Landlord fail to promptly commence
and diligently proceed to so restore the remaining portions of the
Demised Premises, Tenant may at its option do so at Landlord's expense
with the right of offset set forth in Article 23 hereinbelow.
22.4 All compensation awarded or any taking, whether for the whole or a
portion of the Demised Premises including but not limited to Landlord's
remainder and future rent loss, shall belong to Landlord; provided that
Tenant shall be entitled to any award made, whether to Landlord or to
Tenant, for the unamortized cost of the Building, Tenant's moving
expenses and the value of Tenant's trade fixtures. Tenant may apply for
and receive an award for the loss of Tenant's leasehold estate so long
as such award in no way diminishes any award to Landlord or to any
mortgagee of Landlord with respect to Landlord's remainder. Any defense
of a condemnation claim with respect to either Landlord's or Tenant's
interest shall be subject to Tenant's control and approval.
22.5 In the event of any termination of this Lease as the result of the
provisions of this Article, the parties, effective as of such
termination, shall be released, each to the other, from all liability
and obligations thereafter arising under this Lease and the
improvements to the Demised Premises (but not the Noven Property) shall
be the property of Landlord.
ARTICLE 23
SELF HELP
If either party defaults in the performance of any non-monetary obligation
imposed on it by this Lease and does not cure such default within thirty (30)
days after written notice from the other party specifying the default (or does
not within said period commence and diligently proceed to cure such default),
the other party, without waiver of or prejudice to any other right or remedy it
may have, shall have the right at any time thereafter to cure such default for
the account of the
17
defaulting part, and the defaulting party shall reimburse the other party for
any reasonable amount paid and any expense or contractual liability so incurred
upon invoice. In the event Tenant is not reimbursed by Landlord as herein
required or should Tenant elect to cure a default by Landlord in the performance
of Landlord's obligations and is not reimbursed for its reasonable expenses upon
invoice, Tenant shall have the right, at its sole discretion, of offsetting any
payment(s) next due to Landlord, until which time Tenant has been completely
reimbursed for its expenses. The foregoing to the contrary notwithstanding,
Tenant shall have no right of offset for sums due or to cure any default
hereunder unless and until Tenant has given not less than thirty (30) days prior
written notice of such default to the holder of any mortgage or Mortgage on the
Demised Premises or the Center of which Tenant has received notice from Landlord
and such holder fails to cure or causes Landlord to cure said default. In the
event of emergencies, or where necessary to prevent injury to persons or damage
to property, either party may cure a default by the other before the expiration
of the waiting period but after giving such notice to the other party as may be
reasonable under the circumstances.
ARTICLE 24
MANNER OF NOTICE
Any notice or consent required to be given by or on behalf of either party to
the other shall be in writing and mailed by registered or certified mail, return
receipt requested or personally delivered or sent by confirmed fax, or reputable
air or land courier services (such as DHL, Fed Ex or UPS), addressed to the
other party as follows:
If to Tenant: Noven Pharmaceuticals, Inc.
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Landlord: Deerwood Commerce Center, LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address as may be specified from time to time in writing by
either party. All such notices hereunder shall be deemed to have been given on
the date of delivery or the date marked on the return receipt unless delivery is
refused or cannot be made, in which case the date of postmark (for mailed
notices) or attempted delivery (in all other cases) shall be deemed the date
notice has been given. Any notice delivered after 5 p.m. shall be deemed
delivered at 9 a.m. the following business day.
18
ARTICLE 25
LEASE NOT AFFECTED BY DAMAGE TO PROPERTY
Except as set forth in Section 13.3 to the contrary, no destruction or damage to
the Building or the Demised Premises by Casualty of any kind, character or
nature, shall be deemed to entitle Tenant to surrender possession of the Demised
Premises or to terminate this Lease, or to violate any of its provisions, or to
cause any rebate or abatement in rent then due, or thereafter becoming due under
the terms hereof.
ARTICLE 26
COVENANT OF QUIET ENJOYMENT BY LANDLORD
Landlord covenants and agrees with Tenant that so long as Tenant keeps and
performs all of the covenants and conditions to be performed by Tenant, Tenant
shall have quiet and undisturbed and continued possession of the Demised
Premises, free from any claims of Landlord and all persons claiming under, by or
through Landlord. Further, it is understood and agreed that Tenant will have
access to and use of the Demised Premises seven (7) days per week and
twenty-four (24) hours per day.
ARTICLE 27
HAZARDOUS WASTE
27.1 Landlord represents to Tenant as follows:
27.1.1 Landlord shall provide to Tenant copies of any Phase I
environmental reports in Landlord's possession which relate to
the presence or use of hazardous materials and/or toxic
substances on the Demised Premises.
27.1.2 To the best knowledge of Landlord, there are no hazardous
materials and/or toxic substances on the Demised Premises.
27.1.3 Should hazardous materials and/or toxic substances be found on
the Demised Premises prior to the Commencement Date of this
Lease, or if Landlord introduces or permits the introduction
of hazardous materials and/or toxic substances after the
Commencement Date, Landlord shall remove same at Landlord's
sole cost and expense and shall otherwise comply with all
federal, state and local rules, regulations, laws, statutes or
ordinances pertaining thereto, and shall indemnify Tenant and
hold Tenant harmless from all costs and expenses arising from
the presence of asbestos or other hazardous materials.
27.1.4 If Landlord breaches the obligations stated in the preceding
subparagraph 27.1.3, or if the presence of hazardous materials
or toxic substances on the Demised Premises caused or
permitted by Landlord results in contamination of the Demised
Property, then Landlord shall indemnify, defend and hold
Tenant harmless from any and all claims, judgments, damages,
penalties, fines, reasonable costs, liabilities or losses,
which arise during or after the Term as a
19
result of such contamination. This indemnification of Tenant
by Landlord includes, without limitation, reasonable costs
incurred in connection with any investigation of site
conditions, including regular inspections, or any clean-up,
remedial, removal or restoration work required or recommended
by any federal, state or local governmental agency or
political subdivision because of hazardous materials or toxic
substances present in the soil or ground water on or under the
Demised Premises and/or the Center.
27.2 Tenant agrees as follows with respect to the presence or use of
hazardous materials and/or toxic substances on or about the Demised
Premises:
27.2.1 Landlord acknowledges that due to the nature of Tenant's
pharmaceutical business, Tenant uses hazardous materials or
toxic substances in its operations at the Demised Premises.
However, Tenant shall not cause or permit any hazardous
materials or toxic substances to be brought upon, kept or used
in or about the Demised Premises by Tenant, its agents,
employees, contractors or invitees, other than in the ordinary
course of its business as disclosed to Landlord, without the
prior written consent of Landlord in all other instances.
Landlord shall not unreasonably withhold such consent as long
as Tenant demonstrates to Landlord's reasonable satisfaction
and covenants to Landlord that such hazardous materials or
toxic substances are necessary or useful to Tenant's business
and will be used, kept and stored in a manner that complies
with all laws relating to any such hazardous materials or
toxic substances so brought upon or used or kept in or about
the Demised Premises.
27.2.2 If Tenant breaches the obligations stated in the preceding
subparagraph, or if the presence of hazardous materials or
toxic substances on the Demised Premises caused or permitted
by Tenant results in contamination of the Demised Property,
then Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims, judgments, damages, penalties, fines,
reasonable costs, liabilities or losses, which arise during or
after the Terms as a result of such contamination. This
indemnification of Landlord by Tenant includes, without
limitation, reasonable costs incurred in connection with any
investigation of site conditions, including regular
inspections, or any clean-up, remedial, removal or restoration
work required or recommended by any federal, state or local
governmental agency or political subdivision because of
hazardous materials or toxic substances present in the soil or
ground water on or under the Demised Premises and/or the
Center.
27.2.3 The indemnity, defense and hold harmless obligations of Tenant
under this Article shall survive any termination of this
Lease. Without limiting the foregoing, if the presence of any
hazardous materials or toxic substances on the Demised
Premises or the Center caused or permitted by Tenant results
in any contamination of the Demised Premises or the Center,
Tenant shall promptly take all actions at its sole expense as
are necessary to return the Demised Premises and the Center to
the condition existing prior to the introduction of any such
hazardous materials or
20
toxic substances; provided that, Landlord's approval of such
actions shall first be obtained (unless such action is
required to be taken by law), which approval shall not be
unreasonably withheld so long as such actions, in Landlord's
sole and absolute discretion, would not potentially have any
material adverse long-term or short-term effect on the Demised
Premises or the Center.
27.3 Should Tenant violate the provisions as contained in Paragraph 27.2
herein, Landlord shall have the right, at any time upon reasonable
notice to Tenant, to cause testing ▇▇▇▇▇ to be installed on or about
the Demised Premises and/or the Center, and may, at its option, cause
the ground water, soil and air to be tested to detect the presence of
hazardous materials or toxic substances at least once every twelve (12)
months during the Term by the use of such tests as are then customarily
used for such purposes. Landlord shall supply Tenant with copies of
such test results. The commercially reasonable cost of such tests and
of the maintenance, repair and replacement of such ▇▇▇▇▇ shall be fully
paid for by Tenant within ten (10) days after receiving a statement of
charges from Landlord. Tenant shall have the right at any time during
the Term to conduct its own test of the ground water, soil and air and
may use such ▇▇▇▇▇ so long as each of the following conditions are
satisfied: (1) such tests are conducted by Tenant at its own expense;
(2) it repairs any damage to such ▇▇▇▇▇, the Demised Premises or the
Center caused by such tests; and (3) it delivers copies of the results
of such tests to Landlord.
27.4 In the event of a spill or mishandling of hazardous materials or toxic
substances which requires notice to applicable authorities, Tenant
shall immediately inform Landlord verbally and in writing. Such notice
shall identify the hazardous materials or toxic substances involved and
the emergency procedures taken.
27.5 As used herein, the terms "HAZARDOUS MATERIALS AND/OR TOXIC SUBSTANCES"
mean: (a) any hazardous or toxic substance, material or waste which is
or becomes regulated by any local, state or federal government or
special district; (b) designated as a "HAZARDOUS SUBSTANCE" pursuant
toss.1311 of the Federal Water Pollution Control Act (33 U.S.C.,
ss.1317; (c) defined as a "HAZARDOUS WASTE" pursuant toss.1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C., ss.6901 ET
SEQ. (42 U.S.C.ss.6903); (d) defined as a "HAZARDOUS SUBSTANCE"
pursuant to ss.101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C.,ss.9601 ET SEQ. (42 U.S.C.,
ss.9601); or (e) any infectious wastes or substances. References herein
to specific statutes or laws shall also be references to any amendments
of or applicable successor statutes or laws.
27.6 Tenant acknowledges that Tenant has certain reporting requirements to
governmental agencies and submits on a regular basis (a) a list of
regarding the hazardous materials and toxic substances that Tenant uses
in its business on the Demised Premises; (b) a plan for use, handling,
storage and disposal of hazardous materials and toxic substances on the
Demised Premise; (c) the name, address, telephone number and
qualifications of a licensed company that will handle emergency
clean-up for Tenant; and (d) a written contingency plan for any
emergency involving hazardous materials and toxic substances
21
on the Demised Premises. Tenant agrees to submit to Landlord copies of
all such reports when filed.
27.7 Landlord agrees that Tenant may use the hazardous materials and toxic
substances specifically consented to by Landlord as required by
Paragraph 27.6 above, subject to the terms of this Lease and this
Article.
27.8 It is the intent of the parties hereto that the provisions of this
Article regarding the use and handling of hazardous materials and toxic
substances shall also apply to Tenant's storage upon the Demised
Premises of any substances, including, but not limited to, gasoline and
diesel fuels, in above or below ground storage tanks.
27.9 Landlord warrants and represents to Tenant that the Demised Premises
have not previously been, and are not presently, used for the storage
or disposal of hazardous materials and/or toxic substances as defined
herein.
ARTICLE 28
MISCELLANEOUS PROVISIONS
It is mutually agreed by and between the parties as follows:
28.1 No waiver of a breach of any of the covenants in this Lease contained
shall be construed to be a waiver of any succeeding breach of the same
covenant.
28.2 Time is of the essence of this Lease, and in particular where the
obligation to pay money is involved.
28.3 No modification, release, discharge or waiver of any provisions hereof
shall be of any force, effect or value unless in writing and signed by
the parties who are then Landlord and Tenant.
28.4 All covenants, promises, conditions and obligations herein contained or
implied by law are covenants running with the land, and shall attach to
and be binding upon the heirs, executors, administrators and assigns of
each of the parties to this Lease.
28.5 This Lease contains the entire agreement between the parties as of this
date, and that the execution hereof has not been induced by either of
the parties by representations, promises or understandings whatsoever
between the respective parties in any way touching the subject matter
of this instrument which are not expressly contained in this
instrument.
28.6 All uses of pronouns in reference to Landlord and Tenant, respectively,
mean such Landlord and Tenant, respectively, whether the personal or
impersonal, singular or plural pronouns are used.
22
28.7 Whenever Landlord shall receive notice of the filing of a lien or claim
of lien against the subject property, Landlord shall, within ten (10)
days thereafter notify Tenant of the existence thereof.
28.8 A memorandum of this Lease, substantially in the form attached as
EXHIBIT "G", will be recorded among the Public Records of Miami-Dade
County, Florida, but not until after the Effective Date.
28.9 All covenants, promises, conditions, representations, and agreements
herein contained shall be binding upon, apply, and inure to the parties
hereto and their respective heirs, executors, administrators,
successors, grantees and permitted assigns.
28.10 If any provision of this Lease or the application thereof to any person
or circumstance shall to any extent be held invalid, then the remainder
of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held invalid shall not
be affected thereby, and each provision of this Lease shall be valid
and enforced to the fullest extent permitted by law.
28.11 In interpreting this Lease in its entirety, the printed provisions of
this Lease and any additions written or typed thereon shall be given
equal weight, and there shall be no inference, by operation of law or
otherwise, that any provision of this Lease shall be construed against
either party hereto.
28.12 The captions contained in this Lease are for convenience only and do
not in any way limit or amplify any term or provision hereof. The use
of the terms "HEREOF", "HEREUNDER" and "HEREIN" shall refer to this
Lease as a whole, inclusive of Exhibits, except when noted otherwise.
The use of the masculine or neuter genders herein shall include the
masculine, feminine and neuter genders and the singular form shall
include the plural when the context so requires.
28.13 Landlord and Tenant each warrants and represents to the other that,
other than ▇▇▇▇▇▇▇ ▇▇▇▇ Company and Resource Real Estate Group
(collectively, the "BROKERS"), there are no brokers' fees, finders'
fees or any real estate commissions due to any broker, agent or other
party in connection with this Lease or on behalf of either of them.
Landlord agrees to pay the Brokers a commission in an amount agreed
upon between Landlord and Brokers by separate letter. Except as to
commissions which may be payable to Brokers, Landlord and Tenant hereby
agree to indemnify and hold the other harmless from and against any and
all costs, expenses, liabilities, causes of action, claims or suits by
any party for compensation, commission, fees or other sums claimed to
be due or owing with respect to the representation of Landlord or
Tenant as applicable, in effecting this Lease, including the option to
purchase. In no event shall any commission be due and owing to the
Brokers unless all conditions precedent to this Agreement have been
fulfilled.
28.14 This Lease shall be construed under the laws of the State of Florida.
23
28.15 Each party acknowledges that it has relied upon its own examination of
this Lease and the provisions hereof, as well as the representations of
its own counsel. The parties acknowledge that this Lease has been
prepared by joint effort of both parties and therefore, there shall be
no presumption in favor of either Landlord or Tenant.
ARTICLE 29
RIGHT OF FIRST OFFER
29.1 Up until the end of the 7th Lease Year and for the first two (2) years
of each Option Period (as defined herein), and so long as this Lease is
in full force and effect and in good standing, Tenant has the Right of
First Offer on all vacant space becoming available in Building I. Base
Rent for such space shall be the same as the Base Rent then payable on
this Lease at the time of accepting such space. Additional Rent shall
be payable at the rate then in effect under the terms of this Lease,
based on the proportionate share of the space to the total leasable
space in the Center (not including the Demised Premises).
29.2 Landlord shall give Tenant notice in writing as spaces become
available. Tenant shall notify Landlord of its election to accept or
reject such space within fifteen (15) business days of receipt of offer
by Landlord. If Tenant fails to make such election timely, it shall be
conclusively presumed that Tenant is rejecting such space.
29.3 If Tenant elects to accept such space, Base Rent and Additional Rent
shall commence sixty (60) days after Landlord delivers the space to
Tenant clean, with all mechanical systems in good working order and
free of any encumbrances.
ARTICLE 30
TENANT'S OPTION TO RENEW
30.1 Subject in all respects to the provisions of this paragraph, and
provided that this Lease is in good standing, Tenant shall have four
(4) consecutive five-year options to renew the Lease (the "OPTION
PERIODS") for the Demised Premises upon twelve (12) months' prior
written notice. Tenant's exercise of any such option shall be subject
to withdrawal pursuant to paragraph 30.5 in the event Tenant does not
accept the arbitrator's determination of the Fair Market Rates.
30.2 The rental rate for the first and third Option Periods shall be at the
lesser of the then current rental rate or 95% of the then current Fair
Market Rate for the Demised Premises. In determining the Fair Market
Rate, Landlord shall consider all elements affecting the lease
transaction, including, but not limited to Tenant's creditworthiness,
the improvement allowance or rental abatement being provided, and the
fact that Landlord will not lose rent because of any marketing or
construction time.
30.3 The rental rate for the second and fourth Option Periods will continue
at the then current rental rate, including annual increases negotiated
at the beginning of the first and third Option Periods.
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30.4 In addition to the Option Periods described above, Tenant shall have a
one (1) time right to extend any Term (Initial Term or Option Period)
by one (1) year with 12 months' prior written notice to Landlord. The
rental rate for such Term will continue at the annual increase for the
preceding Term. If Tenant exercises this one year extension, then all
subsequent options for Option Periods shall remain in effect, but shall
be postponed by one (1) year.
30.5 For the first and third Option Periods, Landlord and Tenant shall
negotiate the Fair Market Rate one (1) year prior to the expiration of
the then current Term. If Landlord and Tenant cannot agree upon a rate
within 30 days ("OUTSIDE AGREEMENT DATE"), each party, within five (5)
days of the Outside Agreement Date, shall submit to the other its
determination of Fair Market Rate, and, within fifteen (15) days of the
Outside Agreement Date, Landlord and Tenant shall each appoint one (1)
arbitrator who shall by profession be a real estate appraiser, having
been active over the five (5) year ending on the date of such
appointment in the valuation of properties similar to the Premises in
the Miami-Dade County, Florida area. The determination of the
arbitrators shall be limited solely to the issue of whether Landlord's
or Tenant's submitted Fair Market Rate for the Premises is the closest
to the actual Fair Market Rate for the Demised Premises as determined
by the arbitrators. The two (2) arbitrators so appointed shall, within
fifteen (15) days of the date of the appointment of the last of them,
meet and attempt to reach a decision as to whether the parties shall
use Landlord's or Tenant's submitted Fair Market Rate and shall notify
Landlord and Tenant of their decision, if any. If the two (2)
arbitrators are unable to reach a decision, they shall, within twenty
(20) days of the appointment of the last of them, agree upon and
appoint a third (3rd) arbitrator, who shall be an appraiser qualified
under the same criteria as set forth herein above for qualification of
the initial two (2) arbitrators. The three (3) arbitrators shall,
within fifteen (15) days of the appointment of the third (3rd)
arbitrator, reach a decision as to whether the party shall use
Landlord's or Tenant's submitted Fair Market Rate and shall notify
Landlord and Tenant thereof. Tenant shall upon the later of 30 days
from arbitrator's decision of the Fair Market Rate or six (6) months
prior to lease expiration, notify Landlord whether it intends to accept
the rent by exercising its option to renew.
30.6 At the beginning of each Option Period, the Landlord shall provide to
Tenant a $2.50 per square foot TI Allowance for the premises so leased,
payable to Tenant at the beginning of each Option period. Tenant may,
at Tenant's option, and upon advance written notice to Landlord, elect
to receive the TI Allowance in the form of a rental credit.
ARTICLE 31
OPTION TO PURCHASE
Subject in all respects to the provisions of this paragraph, and provided that
this Lease is in good standing, Tenant shall have the option to purchase both
the Demised Premises, as well as ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ OF INDUSTRY,
according to the Plat thereof, as recorded in Plat Book 147, Page 56, of the
Public Records of Miami-Dade County, Florida, which comprise both Buildings I
and II (as one package) (the "OPTION PROPERTY"), by providing written notice of
its
25
intention to do so on or before February 28, 2005 (the "PURCHASE OPTION
PERIOD"). Upon giving Landlord such written notice within the Purchase Option
Period, the parties shall negotiate in good faith to reach agreement on price
and terms. In the event the parties are able to reach agreement, the parties
shall enter into a contract for the purchase and sale of the Option Property
within thirty (30) days after the date of such written notice. Notwithstanding
the foregoing, the parties agree that the closing shall take place sixty (60)
days after the contract effective date, that state documentary stamps which are
required to be affixed to the deed, county surtaxes and any cost to cure defects
in title shall be paid by Landlord, including recording of corrective
instruments, and that the cost of title insurance, recording the deed, and any
costs related to financing the purchase shall be paid by Tenant. Each party
shall be responsible for their respective attorneys, professional fees and other
costs associated with the transaction. If Tenant fails to exercise timely its
rights under this paragraph, or if the parties fail to agree on the terms of the
contract within the 30-day period set forth herein, Tenant shall have no further
right to purchase the Option Property.
ARTICLE 32
DEFAULT PROVISIONS
32.1 EVENTS OF DEFAULT. Upon the happening of one or more of the events set
forth below (any of which is referred to hereinafter as an "EVENT OF
DEFAULT"), Landlord shall have any and all rights and remedies
hereinafter set forth:
32.1.1 Tenant fails to pay any one or more of said monthly
installments of Base Rent, Additional Rent or any other sums
required to be paid hereunder as and when the same become due
if such amounts remain unpaid within five (5) business days
thereafter;
32.1.2 A petition in bankruptcy (including Chapter VII and Chapter XI
bankruptcy proceedings or any other re-organization
proceedings under the Bankruptcy Act) be filed by or against
the Tenant and such petition is not dismissed within sixty
(60) days from the filing thereof, or in the event Tenant is
adjudged a bankrupt;
32.1.3 An assignment for the benefit of creditors is made by Tenant;
32.1.4 An appointment by any court of a receiver or other court
officer of Tenant's property and such receivership is not
dismissed within sixty (60) days from such appointment;
32.1.5 Tenant removes, attempts to remove, or permits to be removed
from the Demised Premises, any property or improvements in the
Building which are the property of Landlord other than as part
of repairs or replacements in the ordinary course of business
or in connection with Tenant's maintenance obligations under
this Lease;
32.1.6 An execution or other legal process is levied upon the goods,
furniture, effects or other property of Tenant brought on the
Demised Premises, or upon the interest of
26
Tenant in this Lease, and the same is not satisfied or
dismissed within ten (10) days from such levy;
32.1.7 A default occurs under the terms of a Tenant-created mortgage
on Tenant's interest in the Demised Premises which is not
cured within any applicable grace period under such mortgage;
32.1.8 Tenant violates, in any material adverse manner, any other
term, condition or covenant on the part of Tenant herein
contained, and fails to commence and proceed with diligence
and dispatch to remedy the same within ten (10) days after
written notice thereof is given by Landlord to Tenant.
32.2 REMEDIES OF LANDLORD.
32.2.1 If any Event of Default occurs, Landlord shall have all rights
and remedies available under applicable Florida law, including
but not limited to the right, at the option of the Landlord,
to terminate this Lease upon thirty (30) days' written notice
to Tenant, and to thereupon re-enter and take possession of
the Demised Premises with or without legal process.
32.2.2 If an Event of Default occurs in the payment of Base Rent
and/or Additional Rent, Landlord agrees to give Tenant written
notice of such non-payment not more often than two (2) times
during each Lease Year. Such notice shall specify the
non-payment and shall give Tenant five (5) calendar days from
receipt of the notice to cure same. If Tenant fails to cure
the Event of Default within such five-day period, then, in
addition to and not in limitation of Landlord's remedies
hereunder and under Florida law, Tenant covenants and agrees
to pay to Landlord a Late Charge, as set forth herein. If
Tenant fails to make a required payment on or before the first
(1st) business day of the month, more than twice during any
Lease Year, Landlord is under no obligation to give such
written notice, and Tenant covenants and agrees to pay to
Landlord a Late Charge, as set forth herein. The Late Charge
shall be in an amount equal to 5% of the amount outstanding
(including applicable tax thereon). In the event any Late
Charge is due to Landlord, Landlord shall advise Tenant in
writing and Tenant shall pay the Late Charge to Landlord along
with and in addition to the next payment of rent.
32.2.3 If at any time, Tenant shall fail to pay any of the taxes or
assessments herein provided for, or in case of the sale or
forfeiture of said Demised Premises or any part thereof during
the Term for non-payment of any tax or assessment, or if
Tenant shall fail to keep insured or maintain any buildings or
improvements which may, at any time hereinafter, be upon the
Demised Premises, as herein provided for, or shall fail to
expend insurance money, as herein provided for, or if Tenant
engage in any action with respect hereto without the prior
written consent of Landlord when such consent is required, or
shall fail to perform any of the covenants of this Lease by it
to be kept and performed, and such failure has a
27
material adverse effect, then Landlord may use and enforce any
remedies that Florida law and this instrument afford.
32.2.4 In the event Tenant is in default in making any payments or
performing any other act required by or under the terms of a
Tenant-created mortgage on Tenant's interest in the Demised
Premises, such default shall constitute a default under the
terms hereof. Should Tenant receive notice of a default from
the lender under Tenant-created mortgage, Tenant shall furnish
a copy of such notice to Landlord within five (5) days of
receipt of such notice.
32.2.5 Upon the occurrence of an Event of Default, Tenant pledges
with and assigns unto Landlord all of the rents, issues and
profits which might otherwise accrue to Tenant for the use,
enjoyment and operation of the Demised Premises, and in
connection with such pledging of such rents, Tenant covenants
and agrees with Landlord that if Landlord, upon the default of
Tenant, elects to file suit to enforce or cancel this Lease
and perfect Landlord's rights hereunder, then Landlord may, as
ancillary to such suit, apply to any court having jurisdiction
hereof for the appointment of a receiver of all and singular
the Demised Premises, and all additions and accessions
thereto, and thereupon, it is expressly covenanted and agreed
that the court shall forthwith appoint a receiver with the
usual powers and duties of receivers in like cases, and such
appointment shall be made by such court as a matter of strict
right to Landlord, and without reference to the adequacy or
inadequacy of the value of the property which is subject to
Landlord's lien, or to the solvency or insolvency of Tenant,
and without reference to the commission of waste.
32.2.6 If any Event of Default occurs, Landlord shall have the right,
at its option, from time to time, without terminating this
Lease, to re-enter and relet the Demised Premises, or any part
thereof, with or without legal process, as the agent and for
the account of Tenant upon such terms and conditions as
Landlord may deem advisable or satisfactory, in which event
the rents received on such reletting shall be applied first to
the expenses of such reletting and collection including but
not limited to, necessary renovation and alterations of the
Demised Premises, reasonable attorney's fees, any real estate
commissions paid, and thereafter toward payment of all sums
due or to become due Landlord hereunder, and if a sufficient
sum shall not be thus realized or secured to pay such sums and
other charges, (i) at Landlord's option, Tenant shall pay
Landlord any deficiency monthly, notwithstanding Landlord may
have received rental in excess of the rental stipulated in
this Lease in previous or subsequent months, and Landlord may
bring an action therefor as such monthly deficiency shall
arise, but all such monthly deficiencies and excess payments
shall be subject to periodic reconciliation, not less
frequently than quarterly or (ii) at Landlord's option, the
entire deficiency, which is subject to ascertainment for the
remaining Term, shall be immediately due and payable by
Tenant. The foregoing amount shall be discounted to net
present value utilizing a discount rate equal to the weekly
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average yield on United States Treasury securities adjusted to
a constant maturity of the number of years then remaining
under this Lease, as made available by the Federal Reserve
Board. The rate to be applied shall be determined as of the
date of the Event of Default.
32.2.7 Nothing herein, however, shall be construed to require
Landlord to re-enter and relet in any event. Landlord shall
not, in any event, be required to pay Tenant any surplus of
any sums received by Landlord on a reletting of the Demised
Premises in excess of the rent provided in this Lease.
32.2.8 If any Event of Default occurs, the Landlord shall have the
right, at its option, to declare the rents for the entire
remaining Term and other indebtedness, if any, immediately due
and payable without regard to whether possession shall have
been surrendered to or taken from Landlord, and may commence
action immediately thereupon and recover judgment therefor.
32.2.9 If any Event of Default occurs, Landlord, in addition to other
rights and remedies it may have, shall have the right to
remove all or any part of the Tenant's property from the
Demised Premises and any property removed may be stored in any
public warehouse or elsewhere at the cost of, and for the
account of Tenant and the Landlord shall not be responsible
for the care of safekeeping thereof, and the Tenant hereby
waives any and all loss, destruction and/or damage or injury
which may be occasioned by any of the aforesaid acts unless
due to the negligent or intentional misconduct of Landlord.
32.2.10 No such reentry or taking possession of the Demised Premises
by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such
intention is given to Tenant. Notwithstanding any such
reletting without termination, Landlord may at all times
thereafter elect to terminate this Lease for such previous
default or breach. Any such reentry shall be allowed by Tenant
without hindrance, and Landlord shall not be liable in damages
for any such reentry, or guilty of trespass or forcible entry.
32.2.11 Any rental which may be due Landlord, whether by acceleration
or otherwise, as herein provided in this Article, shall
include other costs and expenses denominated as Additional
Rent in this Lease.
32.2.12 Any and all rights, remedies and options given in this Lease
to Landlord shall be cumulative and in addition to and without
waiver of, or in derogation of, any right or remedy given to
it under any law now or hereafter in effect.
32.3 EXPENSES OF ENFORCEMENT. In the event any payment due Landlord under
this Lease shall not be paid on the due date, said payment shall bear
interest at the rate of Prime plus three percent (P + 3%) per annum
from the due date until paid unless otherwise specifically provided
herein, but the payment of such interest shall not excuse or cure any
default by
29
Tenant under this Lease. In the event that it shall be necessary for
Landlord, acting reasonably and in good faith, to give more than two
(2) written notices to Tenant within any twelve (12) month period of
any violation of this Lease, then Landlord shall be entitled to make an
administrative charge to Tenant of One Hundred and 00/100 Dollars
($100.00) for the third and each subsequent notice given in that twelve
(12) month period. Tenant recognizes and agrees that the charges which
Landlord is entitled to make upon the conditions stated in this
paragraph represent, at the time this Lease is made, a fair and
reasonable estimate and liquidation of the costs of Landlord in the
administration of the Center resulting from the events described which
costs are not contemplated or included in any other rental or charges
provided to be paid by Tenant to Landlord in this Lease. Any charges
becoming due under this paragraph of this Lease shall be added and
become due with the next ensuing monthly payment of Base Rent and shall
be collectible as a part thereof. In the event that it shall be
necessary for Tenant, acting reasonably and in good faith, to give
Landlord more than two (2) written notices of any violation of this
Lease, then Tenant shall be entitled to make an administrative charge
to Landlord (or to offset from Base Rent) in the amount of $100 for the
third and each subsequent notice given in such twelve (12) month
period.
32.4 PRIME RATE. For purposes of this Lease, "Prime" shall mean and refer to
the prime commercial lending rate announced from time to time by the
Wall Street Journal.
ARTICLE 33
LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT
If Tenant fails to observe or perform any term or condition of this Lease within
the grace period, if any, applicable thereto, then Landlord, upon written notice
to Tenant, may perform the same for the account of Tenant. If Landlord makes any
expenditure or incurs any obligation for the payment of money in connection with
such performance for Tenant's account (including reasonable attorney's fees and
costs in instituting, prosecuting and/or defending any action or proceeding
through appeal), the sums paid or obligations incurred, with interest at the
rate of Prime plus three percent (P + 3%), will be paid by Tenant to Landlord
within ten (10) days after rendition of a ▇▇▇▇ or statement to Tenant. In the
event Tenant, in the performance or non-performance of any term or condition of
this Lease, should cause an emergency situation to occur or arise within the
Demised Premises posing an immediate threat of damage to property or injury to
persons, then, Landlord may exercise all rights set forth in this paragraph
immediately, providing Tenant with such notice as may be commercially reasonable
given the emergency.
30
ARTICLE 34
ESTOPPEL CERTIFICATE
If, at any time and from time to time, upon the written consent of either party
hereto or any mortgage lender (which includes any purchaser or assignee of a
mortgage), Landlord or Tenant shall, within seven (7) business days after
notice, deliver to the requesting party a certificate executed in recordable
form stating (i) whether or not the Lease is in full force and effect, (ii)
whether or not any rights to renew the Term have been exercised and the date on
which this Lease will terminate, (iii) whether or not this Lease has been
modified or amended in any way and attaching a copy of such modification or
amendment, (iv) whether or not there are any existing defaults under this Lease
to the knowledge of the party executing the certificate, and specifying the
nature of such default(s), (v) the status of rent payments, and (vi) any other
facts regarding the operation of the Lease which the mortgage lender may
reasonably request.
ARTICLE 35
RIGHT OF LANDLORD TO ALIENATE
35.1 Subject to the terms of this Lease, Landlord has the unrestricted right
to sell, assign and otherwise convey the Demised Premises, along with
other contiguous lands owned by Landlord, whether or not a part of the
Center. Landlord has the further unrestricted right to mortgage,
refinance, sell, assign and otherwise convey the Demised Premises,
alone or with other lands.
35.2 If Landlord's interest in the Demised Premises terminates by reason of
a bona fide sale or other transfer, Landlord will thereupon be released
from all further liability to Tenant under this Lease provided that the
successor landlord expressly assumes in writing all of Landlord's
obligations under this Lease.
ARTICLE 36
SURRENDER OF PREMISES; HOLDING OVER
36.1 Tenant covenants, stipulates and agrees that upon the termination of
this Lease, whether by lapse of time, default or otherwise, it will, at
once, peaceably and quietly deliver up to Landlord all of the Demised
Premises, including the building and improvements situated thereon, in
good condition, ordinary wear and tear, and damage by fire and
windstorm excepted, provided Landlord is entitled to and does receive
all insurance proceeds due in connection with such damage.
36.2 In all events, Tenant will promptly restore all damage caused in
connection with any removal of Noven Property.
36.3 Without limiting Landlord's rights and remedies, if Tenant holds over
in possession of the Demised Premises beyond the end of the Term,
during the holdover period, the rent for the first six (6) holdover
months will be one hundred fifty percent (150%) of the amount of the
rent due and payable for the last month of the Term and for any
subsequent
31
months of holding over, two hundred percent (200%) of the rent due for
the last month of the Term.
36.4 Other than at the expiration of the Term provided for in this
Agreement, no offer of surrender of the Demised Premises, by delivery
to Landlord or its agent of keys to the Demised Premises or otherwise,
will be binding on Landlord unless accepted by Landlord in writing,
specifying the effective surrender of the Demised Premises.
ARTICLE 37
COSTS AND ATTORNEY'S FEES
In connection with any litigation, including appellate proceedings,
arising out of this Lease, the prevailing party shall be entitled to recover
court costs and reasonable attorney's fees at both trial and all appellate
levels.
ARTICLE 38
RADON GAS
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your local health unit.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto affixed their
hands and seals, all on the day and year and at the place first above mentioned.
Witnesses: Landlord:
DEERWOOD COMMERCE CENTER, LLC,
a Florida limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------- Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Print Name: Title: Manager
---------------------------
--------------------------------------
Print Name:
---------------------------
Tenant:
NOVEN PHARMACEUTICALS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------- Title: VP & CFO
Print Name:
---------------------------
--------------------------------------
Print Name:
32
SCHEDULE OF EXHIBITS
Exhibit "A" Site Plan of Center
Exhibit "B" BOMA Certification
Exhibit "C" Schedule of Manufacturers' Warranties
Exhibit "D" Landlord's Requirements Regarding Signage
Exhibit "E" Permitted Exceptions
Exhibit "F" Subordination and Non-Disturbance Agreement
Exhibit "G" Form of Memorandum of Lease
33