EXHIBIT 10.27
STANDARD INDUSTRIAL LEASE
THIS STANDARD INDUSTRIAL LEASE (the "Lease"), made this 20th day of
December, 2002, by and between MCMILLAN/MIAMI, LLC, a Florida limited liability
company, hereinafter referred to as "Landlord," and EGL EAGLE GLOBAL LOGISTICS,
LP a Delaware, Limited Partnership, hereinafter referred to as "Tenant," and
EGL, Inc. a Delaware corporation hereinafter referred to as "Guarantor."
WITNESSETH:
1. PREMISES
In consideration of the rents, covenants, agreements, and stipulations
herein set forth, Landlord hereby leases to Tenant and Tenant hereby takes from
Landlord (i) that certain tract of land, consisting of approximately 18.136
acres located at the southeast intersection of N.W. 72nd Avenue and N.W. 58th
Street in Miami-Dade County, Florida, as more particularly described on Exhibit
"A" attached hereto and made a part hereof (such tract of land being referred
to as the "Land"); and (ii) that certain building to be constructed by Landlord
on the Land, which will contain approximately 364,608 square feet (the
"Building") as shown on "Exhibit B" attached hereto and made a part hereof (the
Land and the Building are collectively referred to herein as the "Premises,"
and sometimes as the "Project"). The Building shall be constructed in
accordance with those certain plans and specifications, dated November 11,
2001, which have been permitted by the applicable governmental authorities of
Miami-Dade County, Florida (the "Plans").
Tenant shall have the right, within thirty days after completion of
the Building, to have the Building measured by Landlord's architect, who shall
be licensed in the state of Florida, to confirm the square footage is in
accordance with the same standards for measurement as used in the Plans. The
square footage measurement obtained by the architect shall control, and in the
event that the actual square footage differs by more than 1% from the estimated
square footage shown above, Landlord and Tenant covenant and agree to execute
an amendment hereto confirming the same with corresponding adjustments in rent.
2. TERM; CONDITIONS
The term of this Lease shall commence on the date (herein called the
"Commencement Date") which is the later of: (i) November 1, 2003; or (ii) the
date on which Substantial Completion (hereinafter defined) has occurred, and
shall expire (unless extended if any extension is provided herein) at 11:59
p.m. on the last day of the one hundred twentieth (120th) full calendar month
after the Rent Commencement Date (hereinafter defined); provided, that, if
Substantial Completion occurs prior to November 1, 2003, and if Tenant
thereupon takes possession of the Premises prior to November 1, 2003, the
Commencement Date shall be the date that Tenant takes possession of the
Premises. The initial term of this Lease and any extension thereof shall herein
be referred to as the "Lease Term." However, notwithstanding anything else to
the contrary in this Lease, this Lease shall be void and shall have no force or
effect unless and until Landlord (or any party to whom Landlord assigns its
right to purchase, lease, or otherwise occupy the Premises) has purchased,
leased, or entered into a written agreement allowing it to otherwise occupy all
of the Premises. If Landlord or its assigns has failed to purchase, lease, or
enter into an agreement allowing it to otherwise occupy the Premises by
December 31, 2002 (the "Purchase Date"), this Lease shall be null and void on
the Purchase Date and neither party shall have any further obligations to the
other and neither party shall have any right of recovery against the other on
account of the failure of Landlord or its assigns to purchase, lease, or enter
into an agreement allowing it to otherwise occupy the Premises by the Purchase
Date. If Landlord or its assigns has purchased, leased, or entered into a
written agreement allowing it to otherwise occupy and become the owner of the
Premises prior to the Purchase Date, then this condition precedent shall have
been satisfied, and this Lease shall be of full force and effect. Landlord may
assign this Lease to the entity that ultimately acquires fee title to the
Premises, and upon such assignment, Landlord shall be relieved from any further
liability under this Lease.
3. RENTAL.
Tenant agrees to pay to Landlord an annual base rental as set forth on
the Special Stipulations attached hereto, commencing on April 1, 2004
(hereinafter called the "Rent Commencement Date"), subject to extension as
provided in Section 6, below. However, notwithstanding the fact that Tenant's
base rental obligation shall not commence until the Rent Commencement Date,
Tenant's obligations for Taxes (hereinafter defined) and insurance premiums (as
set forth in Section 5, below), together with Tenant's obligations for
Operating Expenses (hereinafter defined), as set forth in Section 9 below,
shall commence as of the Commencement Date. Tenant shall also pay all taxes in
the nature of sales, use or similar taxes, now or hereafter assessed or levied
by any taxing authority upon this payment of base rental or additional rent,
and which the Landlord is required or permitted to collect from Tenant payable
simultaneously with the payment of base rent or additional rent, as applicable.
Other remedies for nonpayment of rent notwithstanding, if the monthly
rental payment (whether for base rental or other amounts [e.g., Taxes,
insurance premiums, and Operating Expenses]) is not received by Landlord on or
before the tenth (10th) day of the month for which rent is due, a service
charge of five percent (5%) per month on all past due amounts owed on such date
shall become due and payable in addition to the regular rent owed under this
Lease. Notwithstanding the foregoing sentence, Landlord will provide notice to
Tenant of any nonpayment of rent not more than one time per lease year and
Tenant shall then have five (5) business days from the receipt of notice to
make such payment prior to Landlord imposing the penalties as prescribed
herein.
Tenant's payment of Taxes, insurance premiums, Operating Costs, and
all other monetary sums under this Lease shall be subject to any and all of the
provisions within the Lease which govern Tenant's payment of base rental, all
to be paid to the Landlord without demand, deduction or setoff at its office or
such agent or such other place as Landlord may designate by notice to Tenant in
lawful money of the United States of America, except as set forth in Section
19.2. Rent shall be made payable to the following address (or to such other
address as Landlord shall specify to Tenant in writing):
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McMillan Investment Company
3003 W. Alabama
Houston, Texas 77099
Attn: Dan M. Moody, III
4. SECURITY DEPOSIT
INTENTIONALLY DELETED
5. REAL ESTATE TAXES AND INSURANCE
As used herein, the following terms wherever initially capitalized
shall have the following meanings:
(a) "Taxes" shall mean all real estate taxes and assessments
(e.g., ad valorem taxes), real estate rental receipt or gross receipts tax, or
rent sales tax, levied against or in respect of the Premises, or any other tax
levied against Landlord in substitution for or in lieu of any tax which would
otherwise constitute a real estate tax or a specific tax on rentals from the
Premises, plus the cost, including attorney's and appraiser's fees, of any
negotiation, contest or appeal pursued by Landlord in an effort to reduce the
tax or assessment on which any tax provided for in this Section is based.
(b) "Tax Year" shall mean each twelve (12) month period
established as the real estate tax year by the taxing authorities having lawful
jurisdiction over the Premises.
Tenant shall pay to Landlord all Taxes which shall be due and payable
in equal monthly payments, in advance, commencing with the Rent Commencement
Date, based upon estimated annual taxes, but subject to adjustment within 30
days after Landlord's final determination of the actual costs for such. Any
necessary adjustment shall be paid by Tenant to Landlord within ten (10) days
after delivery of statement reconciling collected taxes against actual taxes.
Any necessary adjustment shall be paid by Tenant to Landlord or refunded by
Landlord to Tenant, as applicable within ten days after delivery of copies of
all applicable final tax bills together with a detailed written statement
reconciling and invoicing estimated taxes against actual taxes, all of which
shall be provided to Tenant within thirty days after the issuance of final tax
bills. Landlord shall have the right to make demand or bill for Taxes after
receipt of the tax bills or upon the expiration or sooner termination of this
Lease. If the Lease Term shall commence or expire during a Tax Year, Tenant
shall be liable only for that portion of the Taxes for such Tax Year
represented by a fraction, the numerator of which is the number of days of the
Lease Term which fall within said Tax Year and the denominator of which is 365.
This provision shall survive expiration or termination of this lease for a
period of one year to permit the reconciliation of taxes for the last year of
the lease term.
Tenant shall be liable for all taxes assessed against and levied upon
the trade fixtures, furnishings, equipment and all other personal property of
Tenant contained in the Premises. If any such taxes are levied against Landlord
or Landlord's property and if Landlord elects to pay the same or if the
assessed value of Landlord's property is increased by inclusion of personal
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property and trade fixtures placed by Tenant in the Premises and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord,
within 30 days of Tenant's receipt of a detailed written statement and copies
of all tax bills setting forth the basis of such increase, that part of such
taxes for which Tenant is primarily liable hereunder.
(c) Tenant's Insurance.
(i) At its sole cost and expense, Tenant shall maintain in
full force and effect during the Term of the lease the following insurance
coverages insuring against claims which may arise from or in connection with
the Tenant's operation and use of the leased Premises.
(a) Commercial General Liability with minimum limits
of $1,000,000 per occurrence; $2,000,000 general aggregate
for bodily injury, personal injury and property damage. If
required by Landlord, liquor liability coverage will be
included.
(b) Workers' Compensation insurance with statutory
limits and Employers Liability with a $1,000,000 per
accident limit for bodily injury or disease.
(c) Automobile Liability covering all owned,
non-owned and hired vehicles with a $1,000,000 per accident
limit for bodily injury and property damage.
(d) Property insurance against all risks of loss to
any tenant improvements or betterments and business personal
property on a full replacement cost basis with no coinsurance
penalty provision.
(ii) Tenant shall deliver to Landlord certificates of all
insurance reflecting evidence of required coverages prior to initial occupancy;
and annually thereafter.
(iii) If, in the opinion of Landlord's insurance advisor, the
amount or scope of such coverage is deemed inadequate at any time during the
Term, and only if deemed necessary because of Tenant's substantial modification
of its use of Premises, Tenant shall increase such coverage to such reasonable
amounts or scope as Landlord's advisor deems adequate.
(iv) All insurance required under this Paragraph shall (i)
be primary; (ii) provide for severability of interests, (iii) be issued by
insurers, licensed to do business in the state in which the Premises are
located and acceptable to Landlord, (iv) be endorsed to include Landlord and
Landlord's Lenders and affiliated entities (as Landlord may request) as
additional insureds (Commercial General Liability only), and (v) be endorsed to
provide at least 30-days prior notification of cancellation or material change
in coverage to said additional insureds.
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(d) Landlord's Insurance. Landlord shall maintain all risk,
including earthquake and flood, insurance covering the buildings within the
Industrial Center, Commercial General Liability and such other insurance in
such amounts and covering such other liability or hazards as deemed appropriate
by Landlord. The amount and scope of coverage of Landlord's insurance shall be
determined by Landlord from time to time in its sole discretion and shall be
subject to such deductible amounts as Landlord may elect. Landlord shall have
the right to reduce any insurance or coverage. Premiums for any such insurance
shall be paid by Tenant to Landlord in equal monthly payments in advance
commencing on the first day of the Lease Term. Not later than 30 days after
Tenant's written request, Landlord shall provide to Tenant a copy of the
insurance certificate which verifies that Landlord has purchased the required
insurance.
6. COMPLETION
Landlord shall complete the Premises, including office space, pursuant
to the Plans. Provided that Landlord has substantially complied with the terms
contained in the "Build-to-Suit Addendum" attached hereto, then if Landlord,
for any reason whatsoever, cannot achieve Substantial Completion and deliver
possession of the Premises to Tenant on or before November 1, 2003, this Lease
shall not be void or voidable, nor shall the Lease terminate, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom, but in
that event the term of this Lease shall be extended by such delay for each day
beyond November 1, 2003 that Substantial Completion has not occurred.
"Substantial Completion" shall occur upon the later of: (i) Landlord's
architect's written certification that the Landlord's work is substantially
complete in accordance with the Plans and all change orders; and (ii) the
issuance of a temporary Certificate of Occupancy/and or Certificate of
Completion (or the equivalent applicable certification) and all other required
governmental approvals permitting Tenant to occupy the Premises for the
purposes intended hereby. Excluding delays as a result of (a) Tenant delay, (b)
change orders requested by Tenant, and (c) occurrences of force majeure which
cause construction delay, Landlord covenants and agrees to use all reasonable
efforts to cause Substantial Completion to occur on or before November 1, 2003.
Provided that the dates prescribed in the Build to Suit Addendum are adhered to
and excluding (x) Tenant delay, and (y) delays caused by change orders
requested by Tenant (but expressly including delays caused by force majeure),
should Substantial Completion not occur on or before November 1, 2003 (such
date being referred to as the "Penalty Date"), then the Rent Commencement Date
shall be delayed for each day beyond the Penalty Date that Substantial
Completion has not occurred (the parties agreeing that said daily penalty
amount is a reasonable estimate of the damages which Tenant will suffer as a
result of such Landlord delay). Landlord agrees to give Tenant written notice
of Substantial Completion at least thirty (30) days prior to the date
Substantial Completion is estimated to occur. For purposes hereof, the term
"force majeure" shall mean and refer to reasons beyond Landlord's reasonable
control, such as strikes; unavailability or scarcity of materials; war; riot;
civil insurrection; acts of terrorism; accidents; floods, storms, hurricanes,
earthquakes and other acts of God; and governmental preemption in connection
with a national emergency, but force majeure shall not include a mere financial
inability to perform.
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7. REPAIRS AND MAINTENANCE OF PREMISES AND ALTERATIONS
Landlord at Landlord's sole cost and expense shall keep the foundation,
the roof, structural components of the Building, and the exterior walls of the
Building (except plate glass, windows, doors, door closure devices, window and
door frames, molding, locks and hardware) in good repair, except that Landlord
shall not be required to make any repairs occasioned by any act of negligence
of Tenant, its agents, employees, sub-tenant, invitees and licensees. In the
event the Building should become in need of repairs required to be made by
Landlord hereunder, Tenant must give immediate written notice to Landlord, and,
provided that Landlord is diligently and actively pursuing such repair,
Landlord shall not be responsible in any way for failure to make any such
repairs until a reasonable time shall have elapsed after delivery of such
written notice. Tenant shall be solely responsible for any additional damage
that occurs or any additional cost incurred in making such repairs as a result
of Tenant's failure to give timely notice to Landlord.
Tenant shall, at its own expense, enter into a regularly scheduled
preventative maintenance/service contract with a maintenance contractor for
servicing all hot water, heating and air conditioning systems and equipment
within the Building or elsewhere on the Premises. During the warranty period
for all hot water, heating, and air conditioning systems and equipment, Tenant
shall comply with all manufacturer's recommendations for preventative
maintenance/repairs during such applicable warranty period. The maintenance
contractor and the maintenance contract must be approved by Landlord, which
approval shall not be unreasonably delayed, withheld, or conditioned. The
maintenance contract must include all services suggested by the equipment
manufacturer within the operation/maintenance manual and must become effective
(and a copy thereof delivered to the Landlord) within thirty (30) days of the
date Tenant takes possession of the Premises. Landlord hereby represents and
warrants to Tenant that all HVAC systems and all components thereof within the
Building shall be new products and installed in a good workman-like manner.
Landlord further covenants and agrees to deliver to Tenant copies of any
warranties from the manufacturer of such units and/or systems (as well as any
other building systems or equipment) in favor of Landlord and/or Tenant, and to
pursue, to the extent Tenant is not permitted to pursue, or cooperate with
Tenant in pursuing claims pursuant to said warranties. Landlord shall also be
responsible, at Landlord's sole cost and expense, for any defect in the
materials or workmanship in the floor and dock slabs within the Premises,
except that Landlord shall not be required to make any repairs occasioned by
any act of negligence of Tenant, its agents, employees, sub-tenant, invitees
and licensees.
Tenant agrees throughout the Lease Term, at Tenant's sole cost and
expense (and except for those above listed items that Landlord is required to
keep and maintain with regard to the Building as set forth in this Section 7
herein), to keep and maintain the Building and the remainder of the Premises
and all fixtures and equipment therein, including all plumbing, heating,
air-conditioning, electrical, gas, water, sewage and like fixtures and
equipment, and also including the Building window glass, loading docks,
exterior steps, doors, door frames, locks and hardware, interior ceilings,
walls and floors and all signs of Tenant erected pursuant to Section 22 hereof
on the outside of the Building in good repair, order and condition, making all
repairs and replacements thereto as may be required; all repairs and
replacements to be of the same or better quality, design and class as the
original work and equipment. If any repairs
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required to be made by Tenant hereunder are not made within ten (10) days after
written notice delivered to Tenant by Landlord, Landlord may at its option make
such repairs without liability to Tenant for loss or damage which may result to
its equipment, fixtures, inventory or business by reason of such repairs, and
Tenant shall pay to Landlord upon demand as additional rent hereunder the
actual and reasonable cost of such repairs, together with interest at the rate
of ten percent (10%) per annum (the "Default Rate") from the date of payment by
Landlord until repaid by Tenant. At the expiration or termination of this
Lease, Tenant shall surrender the Premises in good condition, reasonable wear
and tear and loss by fire or other casualty excepted. Provided that Tenant and
Landlord determine that the replacement of any HVAC equipment is less costly
than the ongoing repair of same, the cost of the replacement shall be
apportioned such that Tenant's financial responsibility for such replacement is
the percentage calculated using the remaining lease term as the numerator and
the useful life of the replacement as the denominator (Tenant and Landlord
agree that ten (10) years shall be the typical useful life of HVAC equipment.)
Tenant's financial responsibility shall then be divided equally over the
remaining months of the Lease Term and paid to Landlord as part of Operating
Expense.
Notwithstanding the foregoing, repairs to Building or remainder of the
Premises occasioned by the act or negligence of Landlord or Landlord's agents,
employees, invitees or licensees shall be paid for by Landlord.
Tenant shall not make any alterations, additions, repairs,
improvements, or installations to the Premises without the prior written
consent of Landlord which consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing sentence, provided that the alteration,
addition, or installation is non-structural and does not penetrate or alter the
Building roof, floor slab, or exterior walls, Tenant shall be permitted to make
alterations, additions, or installations that are less than twenty-five
thousand dollars ($25,000.00). All alterations, additions, repairs,
improvements, installations, equipment (excluding Tenant's trade equipment) and
fixtures, by whomever installed or erected (except such business trade fixtures
belonging to Tenant as can be removed without damage to or leaving incomplete
the Premises or Building) shall remain upon and be surrendered with the
Premises and become the property of Landlord at the termination of this Lease
without credit or compensation to Tenant. Any linoleum, carpeting or other
floor coveting which may be cemented, nailed or otherwise affixed to the floor
of the Premises shall become the property of Landlord without credit or
compensation to Tenant.
All construction work done by Tenant on the Premises or within the
Building shall be performed in a good and workmanlike manner, in compliance
with all governmental requirements, and in such a manner as to cause a minimum
of interference with other construction in progress in the Building. Tenant
agrees to indemnify Landlord and hold Landlord harmless against any loss,
liability or damage resulting from such work, and Tenant shall, if requested by
Landlord, furnish a bond or other security satisfactory to Landlord against any
such loss, liability or damage.
Notwithstanding any provision of this Lease to the contrary Tenant
shall never, under any circumstances, have the power to subject the interest of
Landlord in the Premises to any mechanics' or materialmen's liens or liens of
any kind nor shall any provision in this Lease ever
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be construed as empowering Tenant to encumber or cause Tenant to encumber the
title or interest of Landlord in the Premises. In order to comply with the
provisions of Section 713.10 Florida Statutes it is specifically provided that
neither Tenant nor anyone claiming by through or under Tenant including but not
limited to contractors, subcontractors, materialmen mechanics and laborers
shall have any right to file or place any kind of lien whatsoever upon the
Premises or any improvement thereon, and any such liens are specifically
prohibited. All parties with whom Tenant may deal are put on notice that Tenant
has no power to subject Landlord's interest to any claim or lien of any kind or
character, and all such persons so dealing with Tenant must look solely to the
credit of Tenant, and not to Landlord's interest or assets. Tenant shall put
all such parties with whom Tenant may deal on notice of the terms of this
Section. If at anytime a lien or encumbrance is filed against the Premises as a
result of Tenant's work materials or obligations Tenant shall promptly
discharge (or transfer to bond in accordance with Chapter 713, Florida
Statutes) said lien or encumbrance, and if said lien or encumbrance has not
been discharged or transferred to bond within thirty (30) days from the date
Tenant has received notice that it is filed, then, in addition to any other
right or remedy of Landlord, Landlord may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by
procuring the discharge of such lien by a deposit in court or by posting a bond
Any amount paid by Landlord for any of the aforesaid purposes, or for the
satisfaction of any other lien not caused by Landlord, and all reasonable
expenses of Landlord in defending any such action or in procuring the discharge
of any such lien, shall be deemed additional rent hereunder and shall be repaid
by Tenant to Landlord on demand. Tenant also acknowledges its duty to disclose
to all of its contractors and materialmen the Lease provisions concerning
non-attachment liens and Tenant shall record a short form memorandum and notice
set forth in ss. 713.10(2)(a)-(f) of the Florida Statutes.
Under no circumstances shall Landlord be obliged to repair, or place
or maintain any plate glass or door or window glass. Tenant shall during the
entire term hereof keep in full force and effect a policy of insurance upon all
the plate glass in the building, on which policy both Landlord and Tenant shall
be named as parties covering their respective interest may appear. Tenant shall
furnish Landlord with a Certificate of Insurance or other acceptable evidence
of such insurance is in full force, and evidence that the premiums have been
paid by Tenant at least ten (10) days prior to the due date of same.
8. ACCEPTANCE OF PREMISES
Tenant, upon Substantial Completion of the Premises in accordance with
the Plans, and a joint walk-through by Landlord and Tenant (further subject to
any punch list items pursuant to the attached Build-to-Suit Addendum) shall
accept the Premises in their then condition as suited for the uses intended by
Tenant. If requested by Landlord, Tenant shall execute and deliver to Landlord
a written acceptance of the Premises. The date of completion of Premises shall
be defined as the date which Landlord achieves Substantial Completion as
defined in Paragraph 6 herein.
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9. COMMON AREAS AND OPERATING EXPENSES OF PREMISES
(a) The term "Common Area" is defined for all purposes of this
Lease as that part of the Premises which includes among other facilities,
parking areas, sidewalks, driveways, truckways, loading areas and landscaped
areas. The parties hereby agree that Tenant shall have access to the parking
areas, driveways, walks, landscaped areas and service areas appurtenant to the
Building. During the Lease Term, Tenant will have exclusive use of all parking
at the Building. Excepting only the provisions of 9(c) herein, Landlord shall
be responsible for the operation, management, and maintenance of the Common
Areas, the manner and the expenditures thereof to be consistent with those
customary for similar Class A, institutionally-owned industrial parks in the
Miami Airport industrial submarket, and Tenant agrees to pay on the first day
of each month during the Lease Term as additional rent as hereafter provided,
the cost of all Operating Expenses in accordance with the following:
(b) "Operating Expenses" are all costs incurred by Landlord
relating to the ownership and operation of the Building and Premises including,
but not limited to, the following:
(i) The operation, repair, maintenance and replacement in
neat, clean, good order and condition of the Common Areas,
including parking areas, loading and unloading areas, trash
areas, roadways, sidewalks, walkways, parkways, driveways,
landscaped areas, striping, bumpers, irrigation systems,
drainage systems, lighting facilities, fences and gates,
exterior signs and tenant directories.
(ii) Water, gas, electricity, telephone and other utilities
servicing the Common Areas.
(iii) Trash disposal, janitorial services, and life/safety
systems.
(iv) Management fees as follows: (a) if the Leased Premises
are operated and managed by Landlord, a partner of Landlord or
an affiliate or subsidiary of Landlord, a management fee not to
exceed three percent (3%) of Tenant's annual base rentals
obligation (provided, however, that for the purpose of
calculating or determining the "ceiling" on the management fee
for any year that includes all or any portion of that period of
time between the Commencement Date and the Rent Commencement
Date, Tenant shall be treated as if it were paying base rent at
the rate in effect as of the Rent Commencement Date during such
period of "free" rent); and (ii) if the Leased Premises are not
operated and managed by Landlord, a partner of Landlord, or an
affiliate or subsidiary of Landlord, but is instead managed by a
third party property manager a management fee equal to the
professional management fees (including legal, accounting,
inspection, and consultation fees) incurred by Landlord for the
Leased Premises.
(v) Reserves set aside for maintenance, repair and
replacement of the Common Areas and Building (which shall not
exceed $1,000.00 per calendar year).
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(vi) Environmental monitoring and insurance programs.
(vii) Monthly repayment of capital improvements to the Common
Areas and the Building. The monthly repayment of any given
capital improvement shall be the quotient obtained by dividing
the cost of the capital improvement by Landlord's estimate of
the number of months of useful life of such improvement.
(viii) Maintenance of the Building including, but not limited
to, painting, caulking and repair and replacement of Building
components, including, but not limited to, roof, elevators and
fire detection and sprinkler systems.
(ix) If Tenant fails to maintain the Premises, any reasonable
and verifiable expense incurred by Landlord for such
maintenance.
Tenant shall be responsible for providing its own trash dumpster and dumpster
service. Tenant's debris shall be of such volume as to not overburden Tenant's
trash dumpster. Tenant shall keep its trash dumpster area in a clean condition.
Tenant shall pay the Operating Expenses as follows; Tenant shall pay to
Landlord an "Estimated Annual Common Area and Operating Expense Charge" payable
in equal monthly payments in advance, commencing with the first day of the
Lease Term, based upon the estimated annual Operating Expenses, but subject to
adjustment after the end of each calendar year on the basis of the actual costs
for such year. Within ninety (90) days after the close of each calendar year,
upon request of Tenant, Landlord will furnish to Tenant a detailed statement of
Operating Expenses for such year, such statement to be prepared in accordance
with generally accepted accounting practices. Any necessary adjustment shall be
made within fifteen (15) days after delivery of such statement. Those Operating
Expenses which are directly controllable by Landlord ("Controllable Expenses")
should not increase more than 8.0% per annum on a non-cumulative basis during
the Lease Term. Controllable Expenses shall be defined as all operating
expenses, not including taxes, insurance, third party management fees, charges
determined by governmental authorities, force majeure, or snow removal, but
specifically Tenant shall have the right, at Tenant's sole cost and expense, to
examine Landlord's books and records to review all invoices (and supporting
documentation) in connection with the calculation of common area maintenance
costs, taxes, premiums and Tenant's proportionate share. Should any such
examination reveal overcharges in excess of 5%, the reasonable costs of such
examination shall be borne by Landlord. If the services detailed above are
stopped for any reason, Landlord shall diligently pursue the repair and
restoration of such Building services.
Landlord reserves the right to stop the supply of water, sewage, electrical
current and other services, without incurring any liability to Tenant, where
necessary by reason of accident or emergency, or for repairs, alterations,
replacements or improvements in the judgment of Landlord desirable or
necessary, or when prevented from supplying such services by strikes, lockouts,
difficulty of obtaining materials, accidents or any other cause beyond
Landlord's control, or by laws, orders or ability by exercise of reasonable
diligence to obtain electricity, water, steam, coal, oil or other suitable fuel
or power. However, in the case of repairs, alterations, replacements or
improvements which are under Landlord's control, Landlord agrees
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to give Tenant reasonable notice of repairs, alterations, replacements or
improvements. No diminution or abatement of rent or other compensation shall or
will be claimed by Tenant as a result of, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment or suspension, and provided, however that in the
event such interruption materially interferes with Tenant's use and occupancy
of the Premises or continues for more than ten (10) consecutive days, and is
caused by or within the reasonable control of the Landlord, then base rent and
common area maintenance costs shall be abated for such period in an equitable
manner.
(c) At any time prior to or during Tenant's possession of the
Building, Landlord and Tenant may elect for Tenant to be primarily responsible
for the Operating Expense items listed herein as 9(b)(i) and 9(b)(ii), and
9(b)(iii) (not to include property management). At the time of such election
Landlord and Tenant shall agree to eliminate the Tenant performed items from
the Operating Expenses. Tenant shall agree to perform the items at the same
standard as imposed on Landlord and Landlord reserves the right to reclaim the
responsibility if Tenant does not meet the institutional standard.
(d) Notwithstanding anything herein to the contrary, Operating
Expenses shall not include any cost or expense attributable to:
(i) Repairs or other work occasioned by fire, windstorm
or casualty of an insurable nature in excess of any
deductible feature or by the exercise of the right
of eminent domain;
(ii) Leasing commissions, attorney's fees, costs and
disbursements and other expenses incurred in
connection with negotiations or disputes with
tenants, other occupants (if any), or prospective
tenants;
(iii) Expenses incurred in renovating or otherwise
improving or decorating, or redecorating space for
Tenant or other tenants (if any) or other occupants
or vacant space;
(iv) Landlord's costs of electricity and other services
sold to tenants and for which Landlord is entitled
to be reimbursed by tenants as an additional charge
or rental over the basic rent payable or Operating
Expenses under the lease with such tenant;
(v) Except as otherwise provided herein (e.g., Section
9(b)(vi)), costs incurred by Landlord for
alterations or repairs to the Building or Project
which are considered capital improvements and/or
replacements;
(vi) Except as otherwise provided herein, depreciation
and amortization;
(vii) Except as otherwise provided herein (e.g., Section
9(b)(vi)), costs of a capital nature including, but
not limited to, capital improvements, capital
repairs, capital equipment, capital tools, capital
leases, alterations, sculpture, paintings and other
art work;
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(viii) Expenses in connection with services or other
benefits of a type which are not provided to Tenant
but which are provided to another tenant or
occupant;
(ix) Costs incurred due to violation by Landlord or any
tenant of the terms and conditions of any other
lease (if any);
(x) Overhead and profit increment paid to subsidiaries
or affiliates of Landlord for services on or to the
real property, to the extent only that the costs of
such services exceed competitive costs of such
services not so rendered by a subsidiary of an
affiliate;
(xi) Interest on debt or amortization payments on any
mortgage or mortgages, and rental under any ground
or underlying leases or lease;
(xii) Management fees relating directly to the management
of the Building in excess of the amount provided
herein;
(xiii) Any compensation paid to persons in commercial
concessions operated by Landlord;
(xiv) All items and services which are not generally
provided to all tenants or occupants and for which
Tenant or other tenants reimburse Landlord or pays
third persons;
(xv) Advertising and promotional expenditures;
(xvi) Any costs, fines or penalties incurred due to
violations by Landlord of any governmental rule or
authority (but such exclusion shall not include any
of same due to violations by Tenant);
(xvii) Except for the management fee herein provided,
Landlord's general partnership (or other entity)
overhead;
(xviii) Except for the management fee herein provided, any
portion of any wages, salaries, or other
compensation of any kind or nature paid to any
employees engaged in the marketing and leasing of
the Building or to employees or executives not
directly engaged in the daily operation of the
Building;
(xix) Costs incurred in connection with the original
construction of the Project and costs of correcting
defects in or inadequacy of the initial design or
construction of the Project, the Project equipment
or the Project parking areas, or for repairs or
maintenance covered by warranties and service
contracts;
(xx) Costs of installing, operating and maintaining any
specialty service, such as luncheon club, athletic
or recreational club, observatory, or broadcasting
facilities;
(xxi) Costs incurred in the operation of any garage or
other parking facility or concession other than the
parking facilities unless requested by Tenant;
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(xxii) Any cost or expenditure attributable to a breach by
Landlord of its covenants, conditions, obligations
and duties under this Lease that would not have been
incurred, but for such breach by Landlord;
(xxiii) Any cost of compliance with legal requirements
enacted on or before the Commencement Date;
(xxiv) Any cost relating to investigation, containment
and/or remediation of toxic and/or hazardous
materials (provided, that this exclusion shall not
in any way modify or limit the provisions of this
Lease pertaining to environmental matters [e.g.,
Sections 16 and 43], and in the event of any
conflict between the provisions of this exclusion,
and the provisions of any such provisions, the
provisions of such provisions shall govern and
control); and
(xxv) The cost of any utilities the service of which to
Tenant is separately metered.
If Landlord hereafter constructs any additional building(s) on land adjacent to
the Project and any of the costs or expenses described in Section 9(b) are
attributable to both the Project and such other building(s), then only such
portions thereof as are properly allocable (in Landlord's good faith business
judgment) to the Project shall be included in Operating Expenses.
10. UTILITIES AND SERVICES
Tenant shall pay directly gas, electricity, fuel, and any other
utilities for the Premises, or used by Tenant in connection therewith. If
Tenant does not pay said utilities, Landlord may pay the same and such payment
shall be deemed additional rent payable by Tenant upon demand by Landlord.
11. USE OF PREMISES
The Premises shall be used only for the purpose of freight forwarding,
receiving, storing, shipping and selling products, materials and merchandise
made and/or distributed by Tenant or other third parties and for such other
lawful purposes as may be incidental thereto and approved by Landlord. Tenant
shall, at its sole cost and expense (i) obtain any and all licenses and permits
necessary for any such use and (ii) comply with all governmental laws,
ordinances, regulations, orders and directives applicable to the use or misuse
of the Premises. Tenant shall not receive, store or otherwise handle any
product, material or merchandise which is explosive or highly flammable; or
permit the Premises to be used for any purpose which would render the insurance
thereon void or the insurance risk more hazardous. The Premises shall not be
used for any illegal purposes, in violation of any regulation of any
governmental body or in any manner to create any nuisance. If the insurance
premiums on the Building are increased due to Tenant's use of the Premises,
Tenant shall pay to Landlord the full amount of such increase in Premiums.
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12. ABANDONMENT OF PREMISES
Tenant agrees not to abandon or vacate the Premises during the Lease
Term, and Tenant agrees to use said Premises for the purpose herein leased
until the expiration hereof. However, Tenant may vacate provided that Landlord
shall have the right but not the obligation to market the property for lease to
a third party tenant and terminate Tenant's obligation for the purposes of
leasing Premises to any third party tenant. Landlord shall have complete access
to the Property for purposes of marketing.
13. DAMAGE BY CASUALTY
(a) If the Building should be damaged or destroyed by fire or other
peril, Tenant immediately shall give written notice to Landlord. If the
Building should be totally destroyed by any peril covered by the insurance to
be provided by Landlord under Paragraph 5(d) above, or if they should be so
damaged thereby that, in Landlord's estimation (which shall be delivered to
Tenant on or before the 75th day after the receipt by Landlord of Tenant's
notice of such casualty), rebuilding or repairs cannot be completed within one
hundred twenty (120) days after the date Landlord delivers its determination,
unless a qualified Florida-licensed architect determines that a period longer
than 120 days but less than 180 days is necessary for repair, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease effective upon the date of the occurrence of such damage.
(b) If the buildings situated upon the Premises or of which the
Premises are a part, should be damaged by any peril covered by the insurance to
be provided by Landlord under Paragraph 5(d) herein, and in Landlord's
estimation, rebuilding or repairs can be substantially completed within one
hundred twenty (120) days after the date Landlord makes its determination, as
set forth in the above paragraph, this Lease shall not terminate, and Landlord
shall restore the Premises to substantially its previous condition, except that
Landlord shall not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements that may have been
constructed, erected or installed in, or about the Premises or for the benefit
of, or by or for Tenant, and Landlord's obligation hereunder shall not exceed
in scope the work to be done by Landlord in originally constructing the
Building. In such event, rent shall abate hereunder for that portion of the
Premises which can not reasonably be expected to be used by Tenant, from the
date of such fire or peril until the date upon which such portion of Premises
is useable. If such repairs and rebuilding have not been substantially
completed within one hundred twenty (120) days after the date Landlord delivers
its determination as set forth herein (subject to delays outside of Landlord's
control), Tenant, as Tenant's exclusive remedy, may terminate this Lease by
delivering written notice of termination to Landlord in which event the rights
and obligations hereunder shall cease and terminate. In the event of any
insurance claim, Tenant shall not be liable for payment of any deductible under
any of Landlord's insurance policies with respect to the Premises.
(c) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering
written notice of termination to Tenant within fifteen (15)
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days after such requirement is made known by any such holder, whereupon all
rights and obligations hereunder shall cease and terminate.
(d) If the Premises are damaged by any peril not covered by the
insurance to be provided by Landlord under Paragraph 5(d) above and the cost to
repair such damage exceeds any amount Tenant may elect to contribute or
Landlord may elect to contribute (neither party being obligated to do so),
Landlord may elect either to commence to repair and restore the Premises, in
which event this Lease shall remaining full force and effect, or not to repair
and restore the Premises, in which event this Lease shall terminate.
14. INDEMNITY AND PUBLIC LIABILITY
Tenant covenants at all times to save Landlord harmless from all loss,
liability, cost, or damages that may occur or be claimed with respect to any
person or persons, corporation, property, or chattels on or about the Premises
or to the Building resulting from any act done or omission by or through
Tenant, its agents, employees, invitees, or any person on the Premises by
reason of Tenant's use or occupancy or resulting from Tenant's nonuse, or
possession of said Premises and any or all loss, cost, liability, or expense
resulting therefrom; and all times to maintain said Premises in a safe and
careful manner. Tenant further covenants and agrees to maintain at all times,
during the Lease Term, comprehensive public liability insurance with a
responsible insurance company, licensed to do business in the state in which
the Premises are located and meet or exceed the rating of A by Best's Key
Rating Guide, properly protecting and indemnifying Landlord in an amount of not
less than $1,000,000.00 for injury to or death of any one person, $1,000,000.00
for injury to or death of any two or more persons arising out of any one
occurrence, and not less than $1,000,000.00 for property damages. Such policy
or policies shall be noncancellable except after ten (10) day's notice in
writing to Landlord or Landlord's designees. Tenant shall furnish Landlord with
a certificate or certificates of insurance, covering such insurance so
maintained by Tenant, prior to beginning occupancy hereunder.
Landlord covenants at all times to save Tenant harmless from all loss,
liability, cost, or damages that may occur or be claimed with respect to any
person or persons, corporation, property, or chattels in or about the Common
Area resulting from any act done or omission by or through Landlord, its
agents, employees, invitees, or any person in the Common Area. Landlord further
covenants at all times to save Tenant harmless from all loss, liability, cost,
or damages that may occur or be claimed with respect to any person or persons,
corporation, property, or chattels in or about the Premises resulting from any
act done or omission by or through Landlord, its agents or employees occurring
while Landlord completes any repairs set forth in Section 7 hereinabove or due
to Landlord entry onto the Premises in accordance with Section 23 hereinbelow.
15. GOVERNMENTAL ORDERS
Tenant agrees, at its own expense, to promptly comply with all
requirements of any legally constituted public authority made necessary by
reason of Tenant's occupancy of said Premises. Landlord agrees to promptly
comply with any such requirements if not made necessary by reason of Tenant's
occupancy.
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16. ENVIRONMENTAL MATTERS
16.1 (a) Reportable Uses Require Consent. The term "Hazardous Substance" as
used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises,
is either: (i) potentially injurious to the public health, safety or welfare,
the environment, or the Premises; (ii) regulated or monitored by any
governmental authority; or (iii) a basis for potential liability of Landlord to
any governmental agency or third party under any applicable statute or common
law theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products or by-products
thereof. Tenant shall not engage in any activity in or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous Substances
without the express prior written consent of Landlord and compliance in a
timely manner (at Tenant's sole cost and expense) with all Applicable
Requirements (as defined in Paragraph 16.2, below). "Reportable Use" shall mean
(i) the installation or use of any above or below ground storage tank, (ii) the
generation, possession, storage, use, transportation, or disposal of a
Hazardous Substance that requires a permit from, or with respect to which a
report, notice, registration or business plan is required to be filed with, any
governmental authority, and (iii) the presence in, on or about the Premises of
a Hazardous Substance with respect to which any Applicable Requirements require
that a notice be given to persons entering or occupying the Premises or
neighboring properties. Notwithstanding the foregoing, Tenant may, without
Landlord's prior consent, but upon written notice to Landlord and in strict
compliance with all Applicable Requirements, use any ordinary and customary
materials reasonably required to be used by Tenant in the normal course of the
permitted use in Section 11, above, so long as such use is not a Reportable Use
and does not expose the Premises, or neighboring properties to any meaningful
risk of contamination or damage or expose Landlord to any liability therefor.
In addition, Landlord may (but without any obligation to do so) condition its
consent to any Reportable Use of any Hazardous Substance by Tenant upon
Tenant's giving Landlord such additional assurances as Landlord, in its
reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefore, including but not limited to the installation (and, at
Landlord's option, removal on or before Lease expiration or earlier
termination) of reasonably necessary protective modifications to the Premises
(such as concrete encasements) and/or the deposit of a security deposit and/or
the procurement of such additional insurance coverages as Landlord deems
necessary.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable cause
to believe, that a Hazardous Substance is located in, under or about the
Premises or the Building, Tenant shall immediately give Landlord written notice
thereof, together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party concerning
the presence, spill, release, discharge of, or exposure to, such Hazardous
Substance. Tenant shall not cause or permit any Hazardous Substance to be
spilled or released in, on, under or about the Premises (including, without
limitation, through the plumbing or sanitary sewer system).
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(c) Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord, and Landlord's officers, directors, agents, employees, and Lenders
(hereinafter defined) (collectively, "Landlord Entities") and the Premises,
harmless from and against any and all damages, liabilities, judgments, costs,
claims, liens, expenses, penalties, loss of permits and reasonable attorneys'
and consultants' fees arising out of or involving any Hazardous Substance
brought onto the Premises by or for Tenant or by any of Tenant's employees,
agents, contractors or invitees. Tenant's obligations under this Paragraph
16.1(c) shall include, but not be limited to, the effects of any contamination
or injury to person, property or the environment created or suffered by Tenant,
and the cost of investigation (including consultants' and attorneys' fees and
testing), removal, remediation, restoration and/or abatement thereof, or of any
contamination therein involved. Tenant's obligations under this Paragraph
16.1(c) shall survive the expiration or earlier termination of this Lease.
(d) Tenant shall be permitted to bring de minimis quantities of
Hazardous Substances upon the Premises in the ordinary course of Tenant's
business, so long as i) Tenant otherwise complies with the provisions of this
Section 16; ii) Tenant's business is not primarily or substantially focused on
the distribution or storage of Hazardous Substances; and iii) no such activity
of Tenant violates any rule or requirement of the Miami-Dade County, Florida
fire marshal or other applicable governing entity. The permission granted in
this section 16.1(d) shall be personal to Tenant and shall not be transferable
to any subtenant or assignee which does not own or is not owned or under common
control with Tenant.
16.2 Tenant's Compliance with Requirements. Tenant shall, at Tenant's
sole cost and expense, fully, diligently and in a timely manner, comply with
all "Applicable Requirements," which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, administrative decisions,
judicial rulings, and the like, of any governmental authority; all covenants,
easements and restrictions of record; all permits; all requirements of any
applicable fire insurance underwriter or rating bureau; and the recommendations
of Tenant's and/or Landlord's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters pertaining to (i)
industrial hygiene, (ii) environmental conditions on, in, under or about the
Premises, including soil and groundwater conditions, and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance), now in
effect or which may hereafter come into effect. Tenant shall, within 5 days
after receipt of Landlord's written request, provide Landlord with copies of
all documents and information evidencing Tenant's compliance with any
Applicable Requirements and shall immediately upon receipt, notify Landlord in
writing (with copies of any documents involved) of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to or
involving failure by Tenant or the Premises to comply with any Applicable
Requirements.
16.3 Inspection; Compliance with Law. In addition to Landlord's
environmental monitoring and insurance program, the cost of which is included
in Operating Expenses, Landlord and the holders of any mortgages, deeds of
trust or ground leases on the Premises ("Lenders") shall have the right to
enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times with 24 hours notice to Tenant, for the purpose of inspecting
the condition of the Premises and for verifying compliance by Tenant with this
Lease and all
17
Applicable Requirements. Landlord shall be entitled to employ experts and/or
consultants in connection therewith to advise Landlord with respect to Tenant's
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The cost and expenses of any such
inspections shall be paid by the party requesting same unless a violation of
Applicable Requirements exists or is imminent or the inspection is requested or
ordered by a governmental authority. In the event of a violation of the
Applicable Requirement by Tenant, Tenant shall upon request reimburse Landlord
or Landlord's Lender, as the case may be, for the costs and expenses of such
inspections.
16.4 Landlord's Activities. Subject to Section 43, Landlord represents
that all activities of Landlord on the Premises (which includes development and
construction of same) have and will be conducted in compliance with applicable
environmental laws. Landlord warrants that it is currently in material
compliance with all applicable environmental laws with respect to the Premises
and that there are no pending or, to the best of Landlord's knowledge,
threatened notices of deficiency, notices of violation, orders or judicial
administrative actions involving alleged violations by Landlord of any
environmental laws concerning the Premises. Landlord, at Landlord's sole cost
and expense, shall be responsible for obtaining all permits, licenses and
approvals under environmental laws necessary for Landlord's activities upon the
Premises and shall make all notifications and registrations required by any
applicable environmental law. Landlord at Landlord's sole cost and expense,
shall at all times comply with the terms and conditions of all such permits,
licenses, approvals, notifications and registrations and with any other
applicable environmental laws applicable to Landlord's activities upon the
project. Landlord shall and hereby does indemnify Tenant and hold Tenant
harmless from and against any and all expense, loss and liabilities suffered by
Tenant (with the exception of those expenses, lawsuits and liabilities rising
from Tenant's own use, negligence or willful act) by reason of Landlord's (or
anyone holding by or through Landlord) improper storage, generation, handling,
treatment, transportation, disposal or arrangement for transportation of
disposal of any Hazardous Substances (whether accidental, intentional or
negligent) or by reason of Landlord's breach of any of the provisions of this
Section 16. The indemnity contained herein shall survive the termination or
expiration of this Lease.
17. EMINENT DOMAIN
If the entirety of the Premises or any substantial part thereof (which
shall be defined as more than thirty three percent (33%) of the Building or
thirty three percent (33%) of the Land) shall be taken by any competent
authority under the power of eminent domain or be acquired for any public or
quasi-public use or purpose, the Lease Term shall cease and terminate upon the
date when the possession of said Premises or the part thereof so taken shall be
required for such use or purpose and without apportionment of the award, and
Tenant shall have no claim against Landlord for the value of the unexpired
Lease Term. If any condemnation proceeding shall be instituted in which it is
sought to take or damage any part of the Building or the Land under it or
contiguous thereto, or if the grade of any street or alley adjacent to the
Building is changed by any competent authority and such change of grade makes
it necessary or desirable to remodel the Building to conform to the changed
grade, Landlord shall have the right to cancel this Lease after having given
written notice of cancellation to Tenant not less than ninety (90) days prior
to the date of cancellation designated in the notice. In either of said
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events, rent at the then current rate shall be apportioned as of the date of
the termination. No money or other consideration shall be payable by Landlord
to Tenant for the right of cancellation and Tenant shall have no right to share
in the condemnation award or in any judgment for damages caused by the taking
or the change of grade. Nothing in this paragraph shall preclude an award being
made to Tenant by the condemning authority for loss of business or depreciation
to and cost of removal of equipment or fixtures, provided that any such award
to Tenant does not diminish or replace in any way the award payable to Landlord
hereunder. If this lease is not terminated, provided that repair, replacement,
or reconstruction is reasonable, Landlord shall promptly restore the Building
to a single architectural unit and restore that portion of the remaining
Premises as previously served the Premises, taking into consideration the full
effect of the condemnation, and to the extent of the condemnation proceeds made
available to Landlord. None of the costs, incurred by Landlord in connection
with any of the foregoing shall be included in Operating Expenses. All rentals
and tenants proportionate share shall be adjusted following such condemnation
to reflect any adjustments in the size or use of the Premises or Building.
18. ASSIGNMENT AND SUBLETTING
18.1 Landlord's Consent Required.
---------------------------
(a) Tenant shall not assign, transfer, mortgage or otherwise
transfer or encumber (which shall include an assignment by operation of law
other than as set forth in Section 18.1(d)(i)) (collectively, "assign") or
sublet all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent which consent shall not be
unreasonably withheld and shall be provided to Tenant within fifteen (15) days
of Landlord's receipt of the request provided that Tenant's criteria includes
the relevant criteria listed in the following sentence. Without limiting the
factors, criteria, or circumstances under which Landlord may "reasonably"
withhold its consent to a proposed assignment or sublease, and subject also to
remaining provisions of this Section 18.1, Landlord may withhold its consent to
any proposed assignment or sublease if any of the following facts or
circumstances exist: (a) in the good faith business judgment of Landlord, the
proposed assignee or subtenant would make an undesirable or inappropriate
change or intensification of use of the Premises or the Common Areas; (b)
Landlord has a good faith business reason for not having such proposed assignee
or subtenant as an occupant of the Premises (e.g., a prior negative
relationship between Landlord and such proposed assignee or subtenant and/or
the business principals of the proposed assignee or subtenant, or Landlord has
received negative references/comments from prior landlords and/or creditors of
such proposed assignee or subtenant); (c) Such proposed assignee or subtenant
does not have the financial strength and/or creditworthiness, in Landlord's
good faith business judgment, sufficient to satisfy and perform Tenant's
obligations under this Lease; or (d) leasing to such such proposed assignee or
subtenant would violate any limitations imposed by the Internal Revenue Code
and the Regulations promulgated thereunder relating to real estate investment
trusts. Assignment or subletting shall not release Tenant from its obligations
hereunder. Tenant shall not (i) sublet or assign or enter into other
arrangements such that the amounts to be paid by the sub-tenant or assignee
thereunder would be based, in whole or in part, on the income or profits
derived by the business activities of the sub-tenant or assignee; (ii) sublet
the Premises or assign this Lease to any person in which Landlord owns an
interest,
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directly or indirectly (by applying constructive ownership rules set forth in
Section 856(d)(5) of the Internal Revenue Code (the "Code"); or (iii) sublet
the Premises or assign this Lease in any other manner which could cause any
portion of the amounts received by Landlord pursuant to this Lease or any
sublease to fail to qualify as "rents from real property" within the meaning of
Section 856(d) of the Code, or which could cause any other income received by
Landlord to fail to qualify as income described in Section 856(c)(2) of the
Code. The requirements of this Section 18.1 shall apply to any further
subleasing by any subtenant.
(b) A change in the control of Tenant shall constitute an
assignment requiring Landlord's consent. The transfer, on a cumulative basis,
of 25% or mere of the voting or management control of Tenant or of the
beneficial ownership interest in Tenant, directly or indirectly, shall
constitute a change in control for this purpose.
(c) No acceptance by Landlord of any rent or any other sum of
money from any assignee, sub-tenant or other category of transferee shall be
deemed to constitute Landlord's consent to any assignment, sublease, or
transfer. Except as expressly provided below, no such assignment, subletting,
occupancy or collection shall be deemed the acceptance of the assignee, tenant
or occupant, as Tenant, or a release of Tenant or Guarantor from the further
performance by Tenant of Tenant's obligations under this Lease. However,
notwithstanding the immediately preceding sentence, upon an assignment of this
Lease to a third party that is unaffiliated with Tenant or Guarantor as to
which Landlord's written consent has been obtained as provided above in Section
18.1(a), Guarantor shall be released from any further liability under this
Lease or its guaranty as to those obligations of the Tenant under this Lease
that accrue from and after the effective date of such assignment. Any
assignment or sublease consented to by Landlord shall not relieve Tenant (or
its assignee) from obtaining Landlord's consent to any subsequent assignment or
sublease. Further, for any assignment or subletting after the initial term of
this Lease, in the event that the rental due and payable by a sub-tenant under
any such permitted sublease (or a combination of the rental payable under such
sublease plus any bonus or other consideration therefor or incident thereto)
exceeds the hereinabove provided rental payable under this Lease or if with
respect to a permitted assignment, permitted license or other transfer by
Tenant permitted by Landlord, the consideration payable to Tenant by the
assignee, licensee or other transferee exceeds the rental payable under this
Lease, Tenant shall pay Landlord 50% of any such excess rental amounts or other
consideration paid in connection with a sublease or assignment in within ten
(10) days following receipt thereof by Tenant from such subtenant, assigns,
licensee or other transferee, as the case might be.
(d) Notwithstanding the prohibition contained in Section 18.1(a)
hereof, Tenant, may at its sole discretion and upon prior written notice to
Landlord and compliance with the provisions of Section 18.1(e) hereof, assign
this Lease to: (i) to any person, corporation, partnership or other entity
which acquires all or substantially all of the business or assets of Tenant or
stock in Tenant; or (ii) to any person, corporation, partnership or other
entity which controls, is controlled by or is under common control with Tenant;
or (iii) to any affiliate (within the meaning of such term as set forth in Rule
501 of Regulation D under the Federal Securities Act of 1933) of Tenant.
Notwithstanding the foregoing provisions of this Section 18.1(d), other than
with respect to an assignment of this Lease that occurs in connection with a
transaction
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described in item (i) above of this Section 18.1(d), in no event shall Tenant
be permitted to use a series of more than one of the permitted assignments or
permitted transfers of this Lease or permitted sales or conveyances of the
capital stock or other equity interests in Tenant to "spin-off" or otherwise
transfer or assign this Lease to a third party unrelated to Tenant. As an
example, but not a limitation of the foregoing, Tenant shall not assign this
Lease to the parent corporation of Tenant or to any subsidiary of the parent
corporation of Tenant or other entity controlled or under common control
(directly or indirectly) with Tenant whose assets would consist primarily of
this Lease and the rights granted herein and thereafter sell the stock or the
equity interest of such assignee to a third party, the result of which would be
to transfer this Lease to such third party without obtaining Landlord's prior
written consent. Any such assignment, transfer, or conveyance shall be
prohibited by the terms of this Section 18.1.
(e) Any person who shall become an assignee of Tenant under this
Lease, or become vested with Tenant's leasehold interest hereunder, or a
portion thereof, shall be bound by and liable for all covenants and provisions
contained in this Lease, whether of the nature of covenants ordinarily running
with the land or not, but neither Tenant, nor Guarantor, nor any subsequent
tenant whose interest is assigned or divested, shall be relieved of liability
hereunder except by an express, written release from liability executed in
writing by Landlord. In case of any transfer or vesting of the leasehold
interest hereunder or any part thereof, including those permitted by Section
18.1(d) above, it shall be a condition of the validity of such transfer or
vesting of interest that, such purported assignee or transferee shall promptly
execute and deliver to Landlord a written assumption of the obligations of
Tenant hereunder, in such form that such person or persons shall thereupon be
bound by and liable for all covenants and provisions of this Lease on the part
of Tenant, to the same extent as was the original Tenant. If this Lease is
assigned, Landlord may and is hereby empowered to collect rent from the
assignee; if the Premises or any part thereof shall be sublet or occupied by
any person or corporation other than Tenant, Landlord, in the event of Tenant's
Default, may and is hereby empowered to collect rent from the sublessee or
occupant; in either of such events, Landlord may apply the net amount received
by it to the Rent herein reserved, and no such collection shall be deemed a
waiver of the covenant herein against assignment and subletting or the
acceptance of the assignee, sublessee, or occupant as tenant or a release of
Tenant from the further performance of the covenants herein contained on the
part of Tenant.
19. DEFAULT
(a) It is mutually agreed that the following events shall be deemed a
breach and default hereunder by Tenant: (i) Tenant shall default in the payment
of rent herein reserved, when due, and shall fail to cure said default within
ten (10) days after written notice thereof from Landlord (provided that
Landlord shall not be required to provide Tenant with notice of such failure to
pay rent more than two (2) times in any twelve (12) month period; any
subsequent failure timely pay rent in such twelve (12) month period shall
constitute a default by Tenant under this Lease, entitling Landlord to all of
its remedies provided for herein without any requirement of notice and/or
opportunity to cure), (ii) Tenant shall be in default in performing any of the
terms or provisions of this Lease other than the provision requiring the
payment of rent, and shall fail to cure such default within thirty (30) days
after the date of receipt of written notice of default from Landlord; or. if
such default cannot reasonably be cured within thirty (30) days, if Tenant
shall fail to commence such cure within ten (10) days
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and diligently prosecute such cure to completion; (iii) Tenant is adjudicated
bankrupt; (iv) a permanent receiver is appointed for Tenant's property and such
receiver is not removed within sixty (60) days after written notice from
Landlord to Tenant to obtain such removal; (v) whether voluntarily or
involuntarily, Tenant takes advantage of any debtor relief proceedings under
any present or future law, whereby the rent or any part thereof is, or is
proposed to be, reduced or payment thereof deferred; (vi) Tenant makes an
assignment for benefit of creditors; and (vii) Tenant's effects should be
levied upon or attached under process against Tenant, not satisfied or
dissolved within thirty (30) days after written notice from Landlord to Tenant
to obtain satisfaction thereof. In any of said events, Landlord at its option
may at once, or within six (6) months thereafter (but only during continuance
of such default or condition), terminate this Lease by written notice to
Tenant, whereupon this Lease shall terminate, and the parties hereto shall have
no further obligation to each other; provided, however that Tenant shall be
obligated to Landlord for all rent, including any additional rent, incurred
prior to such termination date. Any notice provided in this Section may be
given by Landlord, or its attorney. Upon such termination by Landlord, Tenant
will at once surrender possession of the Premises to Landlord and remove all of
Tenant's effects therefrom; and Landlord may forthwith reenter the Premises and
repossess itself thereof, and remove all persons and effects therefrom, using
such force as may be necessary (in accordance with applicable law) without
being guilty of trespass, forcible entry or detainer or other tort.
(b) As an alternative to Landlord's remedies under Section 19(a)
above, Landlord may, without terminating this Lease, reenter the Premises by
summary proceedings or otherwise, and in any event may dispossess Tenant,
removing all persons and property from the Premises and such property may be
removed and stored in public warehouse or elsewhere at the cost of, and for the
account of Tenant, all without service of notice or resort to legal process and
without being deemed guilty of trespass, or becoming liable for any loss or
damage which may be occasioned thereby. In the event of such reentry, Landlord
shall use commercially reasonable efforts to relet the Premises to such Tenant
or Tenants for such term or terms as Landlord may elect, without being
obligated to do so, and in the event of a reletting shall apply the rent
therefrom first to the payment of Landlord's expenses, including reasonable and
verifiable attorney's fees incurred by reason of Tenant's default, and the
expense of reletting including but not limited to the repairs, renovation or
alteration of the Premises, and then to the payment of rent and all other sums
due from Tenant hereunder. Tenant shall remain liable for any deficiency. Such
deficiency shall be calculated and paid monthly by Tenant.
Notwithstanding the foregoing provisions of Section 19(b), if, and only if, (i)
one or more Events of Default specified in subsection (iii)-(vii) of Section
19(a) (herein referred to as the "Limited Remedy Defaults") has occurred and is
continuing and has not been waived by Landlord, and (ii) no Event of Default
specified in subsection (i) or (ii) of Section 19(a) has occurred (hereinafter,
an "Unlimited Remedy Default"), and if Landlord elects to pursue its remedies
under the provisions of this Section 19(b), above, then the maximum amount of
any monthly deficiency amount that Landlord may recover from Tenant or that
Tenant shall be required to pay pursuant to the above provisions of this
Section 19(b) during the pendency of such default from and after the date of
the occurrence of such Limited Remedy Default (the "Occurrence Date") with
respect to rent, shall be limited to the amount of the monthly base rent to be
paid under the Lease after
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the Occurrence Date for the unexpired portion of the Term devised herein as if
this Lease had not expired or been terminated; provided however, that in the
event of a Limited Remedy Default (and in the absence of an Unlimited Remedy
Default, as aforesaid), Tenant shall not have (upon the expiration of the term
of the Lease) have paid Landlord an aggregate amount of monthly deficiency
payments from the commencement of monthly deficiency payments through the
expiration of the lease Term that exceeds an amount equal to the potential
amount resulting from an acceleration of all future rental payments that would
have been due and payable immediately from the Occurrence Date through the
expiration of the Lease term, discounted at a rate of 6.71%.
No such reentry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant or unless the termination thereof
be decreed by a court of competent jurisdiction. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach. In addition, Landlord may, as
agent of Tenant, do whatever Tenant is obligated to do by the provisions of
this Lease and may enter the Premises in accordance with applicable law,
without being liable to prosecution or any claim for damages therefor, in order
to accomplish this purpose. Tenant agrees to reimburse Landlord immediately
upon demand for any expenses which Landlord may incur in thus effecting
compliance with this Lease on behalf of Tenant, and Tenant further agrees that
Landlord shall not be liable for any damages resulting to Tenant for such
action, unless caused by the negligence of Landlord.
(c) Subject to the terms and provisions hereinbelow, should Landlord
fail to perform any term or covenant under this Lease and if any such default
shall not be cured and shall accordingly be continuing thirty (30) days
following written notice by certified mail by Tenant to Landlord of such
default (in the event that such default consists of a breach or failure by
Landlord to pay any monetary amount due and payable by Landlord to Tenant) or
sixty (60) days following written notice by certified mail by Tenant to
Landlord of such default (in the event such default consists of a breach or
failure by Landlord to comply with any obligation of Landlord other than one
involving the payment of a monetary amount payable by Landlord to Tenant other
than one involving the payment of a monetary amount payable by Landlord to
Tenant hereunder), then, in either such event, Tenant shall have the option, in
Tenant's sole discretion, of remedying such default and, in connection
therewith, incurring reasonable and verifiable expenses for the account of
Landlord, and any and all such reasonable and verifiable sums expended or
obligations incurred by Tenant in connection therewith shall be paid by
Landlord to Tenant within fifteen (15) days after receipt by Landlord of
Tenant's invoice therefor (with supporting documentation) and if Landlord fails
to so reimburse and pay same to Tenant, Tenant may deduct such amount (together
with interest thereon at the Default Rate) from subsequent installments of Base
Rent and other charges (if any) that from time to time thereafter may become
due and payable by Tenant to Landlord hereunder up to a maximum amount per
month of fifty percent (50%) of Base Rent until the date of repayment of any
unpaid sums by Landlord to Tenant, or until such time as the amounts are fully
deducted, whichever occurs first. Any such abatement or deduction shall not
constitute a default by Tenant unless Tenant shall fail to pay the amount of
such abatement or deduction to Landlord within thirty (30) days after final
adjudication that such amount is owing to Landlord. Notwithstanding the
foregoing, in all events Tenant shall have the right to remedy any default
without prior notice in the event of an
23
emergency (so long as Tenant gives notice within a reasonable period of time
thereafter) and invoice Landlord and abate Rent (if necessary) in the manner
set forth in the preceding sentences of this Section 19. Except as expressly
set forth above in this Section 19(c), in no event shall Tenant have the right
to offset any sum owing, or allegedly owing, by Landlord to Tenant against any
sum otherwise owing by Tenant to Landlord. Further, except as expressly set
forth above in this Section 19(c), if Landlord should fail to perform any of
its obligations under this Lease, Tenant's exclusive remedy is the institution
of a suit for damages. Prior to instituting such a suit, Tenant must supply
Landlord with notice of such failure. Landlord shall then have a reasonable
period of time, but not less than thirty (30) days following Landlord's receipt
of Tenant's notice, in which to commence curative action. Tenant may not
institute such a suit during such thirty (30)-day period or thereafter during
the period in which Landlord is attempting to cure such default. In no event
shall Tenant have any right to terminate this Lease as a result of any default
by Landlord.
20. SUBROGATION
Neither Landlord nor Tenant shall be liable to the other for the loss
arising out of damage to or destruction of the Building, or the contents of any
part thereof, when such loss is caused by any of the perils which are or could
be included within or insured against by a standard form of fire insurance with
extended coverage, including sprinkler leakage insurance, if any. All such
claims for any and all loss, however caused, are hereby waived. Said absence of
liability shall exist whether or not the damage or destruction is caused by the
negligence of either Landlord or Tenant or by any of their respective agents,
servants or employees. It is the intention and agreement of Landlord and Tenant
that the rent reserved by this Lease have been fixed in contemplation that each
party shall fully provide its own insurance protection at its own expense, and
that each party shall look to its respective insurance carriers for
reimbursement of any such loss, and further, that the insurance carriers
involved shall not be entitled to subrogation under any circumstances against
any party to this Lease. Neither Landlord nor Tenant shall have any interest or
claim in the others insurance policy or policies, or the proceeds thereof
unless specifically covered therein as a joint insured.
21. MORTGAGE SUBORDINATION
(a) Subordination. This Lease shall be subject and subordinate to
any ground lease, mortgage, deed of trust, or other hypothecation or mortgage
(collectively, "Mortgage") now or hereafter placed by Landlord upon the real
property of which the Premises are a part, to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Tenant agrees that any person holding any
Mortgage shall have no duty, liability or obligation to perform any of the
obligations of Landlord under this Lease. In the event of Landlord's default
with respect to any such obligation, Tenant will give any Lender, whose name
and address have previously in writing been furnished Tenant, notice of a
default by Landlord. Tenant may not exercise any remedies for default by
Landlord unless and until Landlord and the Lender shall have received written
notice of such default and a reasonable time (not less than 90 days) shall
thereafter have elapsed without the default having been cured. If any Lender
shall elect to have this Lease superior to the lien of its Mortgage and shall
give written notice thereof to Tenant, this Lease shall be deemed prior to such
Mortgage. The provisions of a Mortgage relating to the
24
disposition of condemnation and insurance proceeds shall prevail over any
contrary provisions contained in this Lease.
(b) Attornment. Subject to the non-disturbance provisions of
subparagraph C of this Paragraph 21, Tenant agrees to attorn to a Lender or any
other party who acquires ownership of the Premises by reason of a foreclosure
of a Mortgage. In the event of such foreclosure, such new owner shall not: (i)
be liable for any act or omission of any prior landlord or with respect to
events occurring prior to acquisition of ownership, (ii) be subject to any
offsets or defenses which Tenant might have against any prior Landlord, or
(iii) be liable for security deposits or be bound by prepayment of more than
one month's rent.
(c) Non-Disturbance. With respect to Mortgage entered into by
Landlord concurrent with or after the execution of this Lease, Tenant's
subordination of this Lease shall be subject to receiving assurance (a
"non-disturbance agreement") from the Mortgage holder that Tenant's possession
and this Lease will not be disturbed so long as Tenant is not in default and
attorns to the record owner of the Premises.
(d) Self-Executing. The agreements contained in this Paragraph 21
shall be effective without the execution of any further documents; provided,
however, that upon written request from Landlord or a Lender in connection with
a sale, financing or refinancing of Premises, Tenant and Landlord shall execute
such further writings as may be reasonably required to separately document any
such subordination or non-subordination, attornment and/or non-disturbance
agreement as is provided for herein. Landlord is hereby irrevocably vested with
full power to subordinate this Lease to a Mortgage.
If Landlord shall notify Tenant of the placing of any mortgage against
the Premises, Tenant agrees that in the event of any act or omission by
Landlord or any other occurrence which would give Tenant the right to terminate
this Lease, to claim a partial or total eviction, or to reduce any rent
payments hereunder, Tenant shall not exercise any such right until (a) it has
notified in writing the holder of any mortgage which at the time shall be a
lien on the Premises and of which it has notice, of such act or omission, (b) a
reasonable period, not exceeding thirty (30) days, for commencing the remedying
of such act or omission shall have lapsed following the giving of such notice,
and (c) Tenant or such holder, with reasonable diligence, shall not have so
commenced and continue to remedy such act or omission or cause the same to be
remedied.
22. SIGNS AND ADVERTISEMENTS
Tenant shall have the right to install on the Building and on a street
level monument, at Tenant's sole cost and expense (for all amounts in excess of
the signage "upgrade" referenced in Section 49 of the Special Stipulations
attached hereto), subject to governmental approval, signage which has been
approved by Landlord in writing (provided, however, that Landlord's approval
shall not be unreasonably withheld) and in compliance with all applicable laws,
ordinances, regulations, and the like of every applicable governmental
authority, and in compliance with all recorded restrictions, agreements and/or
declarations of covenants and restrictions applicable to the Premises. If the
Premises have a rear service door (intended for deliveries or shipping), Tenant
shall have the right to install, at its sole cost and expense.
25
Tenant shall have the right to place lettering upon the plate glass entrance
doors or on the plate glass windows of the Premises, at Tenant's sole cost and
expense, provided, however, that the lettering will not exceed six (6) inches
in height. During the term of this Lease it shall be the obligation of the
Tenant to maintain its sign at all times in a first class condition, at its
sole cost and expense, other than repairs and/or maintenance that are
necessitated by the act or negligence of Landlord or Landlord's agents,
employees, or contractors, the cost of which shall be paid for by Landlord.
23. LANDLORD'S RIGHT OF ENTRY
Landlord or Landlord's agent may enter the Premises at reasonable hours
upon reasonable notice, to examine the same and to do anything Landlord may be
required to do hereunder or which Landlord may deem necessary for the good of
the Premises or the Building. Landlord is not required to give notice to Tenant
in the case of a bona fide emergency. During the last one-hundred eighty (180)
days of the Lease Term, Landlord may display signage on, and show the Premises.
24. EFFECT OF TERMINATION OF LEASE
No termination of this Lease prior to the stated termination date
thereof, by lapse of time or otherwise, shall affect Landlord's right to
collect rent for the period prior to termination hereof.
25. NO ESTATE IN LAND
This Lease shall create the relationship of landlord and tenant between
the parties hereto; no estate shall pass out of Landlord. Tenant has only a
usufruct, not subject to levy and sale, and not assignable by Tenant except by
Landlord's consent.
26. HOLDING OVER
Tenant has no right to retain possession of the Premises or any part
thereof beyond the expiration or earlier termination of this Lease. If Tenant
holds over with the consent of Landlord: (i) the Base Rent payable shall be
increased to 150% of the Base Rent applicable during the month immediately
preceding such expiration or earlier termination; (ii) Tenant's right to
possession shall terminate on 30 days notice from Landlord and (iii) all other
terms and conditions of this Lease shall continue to apply. Nothing contained
herein shall be construed as a consent by Landlord to any holding over by
Tenant. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, demands, actions, losses, damages, obligations,
costs and expenses, including, without limitation, attorneys' fees incurred or
suffered by Landlord by reason of Tenant's failure to surrender the Premises on
the expiration or earlier termination of this Lease in accordance with the
provisions of this Lease.
27. WAIVER
The rights and remedies of Landlord under this Lease as well as those
provided or accorded by law, shall be cumulative, and shall be exclusive of any
other rights or remedies hereunder or allowed by law. A waiver by Landlord of
any breach(s) or default(s) of Tenant hereunder shall not be deemed or
construed to be a continuing waiver of such breach(s) or
26
default(s) nor as a waiver of or permission, expressed or implied, for any
subsequent breach(s) or default(s), and it is agreed that the acceptance by
Landlord of any rent payment subsequent to the date the same should have been
paid hereunder, shall in no manner alter or affect the covenant and obligation
of Tenant to pay subsequent installments of rent promptly upon the due date
thereof. No receipt of money by Landlord after the termination of this Lease in
any manner shall reinstate, continue or extend the Lease Term or reinstate this
Lease in any manner.
28. NOTICES
Notice Requirements. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by messenger or
courier service) or may be sent by regular, certified or registered mail or
U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission during normal business hours with confirmation of receipt, and
shall be deemed sufficiently given if served in a manner specified in this
Paragraph 28. The addresses and facsimile numbers noted adjacent to a Party's
signature on this Lease shall be that Party's address for delivery, mailing or
facsimile transmission of notices. Either Party may by written notice to the
other specify a different address for notice purposes, except that upon
Tenant's taking possession of the Premises, the Premises shall constitute
Tenant's address for the purpose of mailing or delivering notices to Tenant. A
copy of all notices required or permitted to be given to Landlord hereunder
shall be concurrently transmitted to such party or parties at such addresses as
noted below Landlord's signature block or as Landlord may from time to time
hereafter designate by written:. notice to Tenant.
Date of Notice. Any notice sent by registered or certified mail, return
receipt requested, shall be deemed given on the date of delivery shown on the
receipt card, or if no delivery date is shown, the postmark thereon. If sent by
regular mail, the notice shall be deemed given 48 hours after the same is
addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or overnight courier that guarantees next day
delivery shall be deemed given 24 hours after delivery of the same to the
United States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via hand or overnight
delivery or certified mail. If notice is received on a Saturday or a Sunday or
a legal holiday, it shall be deemed received on the next business day.
29. TIME OF ESSENCE
Time is of the essence in this Lease.
30. BANKRUPTCY
Neither this Lease nor any interest therein nor any estate hereby
created shall pass to any trustee or receiver in bankruptcy, or to any other
receiver or assignee for the benefit of creditors or otherwise by operation of
law during Lease Term or any renewal thereof.
31. SPECIAL STIPULATIONS
Insofar as the attached Special Stipulations #43-49 conflict with any
of the foregoing provisions, the Special Stipulations shall control.
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32. GOVERNING LAW
This Lease shall be governed in accordance with the laws of the State of
Florida.
33. ENTIRE AGREEMENT
This Lease contains the entire agreement between the parties, and no
modifications of this Lease shall be binding upon the parties unless evidenced
by an agreement in writing signed by Landlord and Tenant after the date hereof.
34. DEFINITIONS
"Landlord" or "Landlord" as used in this Lease shall include its heirs,
representatives, assigns and successors in title to the Premises. "Tenant" or
"Tenant" shall include its heirs and representatives, and if this Lease shall
be validly assigned or sublet, shall include also Tenant's assignees or
sub-Tenants, as to the Premises covered by such assignment or sublease.
"Landlord" or Landlord" and "Tenant" or "Tenant" shall include male and female,
singular and plural, corporation, partnership or individual, as may fit the
particular patties.
35. ATTORNEY'S FEES
The prevailing party in any dispute shall be entitled to recover
reasonable attorney's fees and costs in any action pursuant to the terms of the
Lease.
36. ESTOPPEL CERTIFICATES
Landlord and Tenant each agree to certify in writing the status of this
Lease and the rent payable hereunder, at any time, upon ten (10) business days
written notice. Such certificate shall be in a form reasonably satisfactory to
any governmental authority or public agency or to a prospective purchaser from,
or assignee or sub-tenant of, or holder of a security instrument executed by
Landlord or Tenant, as the case may be. In addition to any other matters
required, such certificate shall certify the Commencement Date of the Lease
Term and the anticipated termination date thereof, whether or not this Lease is
in full force and effect; whether or not this Lease has been amended or
modified, and if so, in what manner; the date through which rent payments have
been made; whether or not there are any known defaults under this Lease, and if
so, specifying the particulars of such default and the action required to
remedy it; and whether or not there are any setoffs against or defenses to the
enforcement of the terms and conditions of this Lease, and if so, specifying
the particulars of such setoffs or defenses.
37. RULES AND REGULATIONS
The rules and regulations, if any, attached to this Lease are hereby
made a part of this Lease, and Tenant agrees to comply with and observe the
same. Tenant's failure to keep and observe said rules and regulations shall
constitute a breach of the terms of this Lease in the manner as if the same
were contained herein as covenants. Landlord reserves the right from time to
time to amend or supplement said rules and regulations, if any, or (if none are
attached) to make rules and regulations, and to adopt and promulgate additional
rules and regulations applicable to the Premises, the Building, and the Park.
Notice of such additional rules and regulations, and amendments and
supplements, if any, shall be given to Tenant, and Tenant
28
agrees thereupon to comply with and observe all such rules and regulations, and
amendments thereto.
38. RELOCATION OF PREMISES
INTENTIONALLY DELETED
39. DELAY
If Landlord or Tenant is delayed or prevented from performing any of
its obligations under this Lease by reason of strike or labor troubles or any
outside cause whatsoever beyond Landlord's or Tenant's reasonable control, the
period of such delay or such prevention shall be deemed added to the time
herein provided for the performance of any such obligations by Landlord or
Tenant.
40. QUIET ENJOYMENT
Landlord warrants that it has full right to execute and to perform this
Lease and to grant the estate demised, and that Tenant, upon payment of the
required rents and performing the terms, conditions, covenants and agreements
contained in this Lease, shall peaceably and quietly have, hold and enjoy the
Premises during the Lease Tetra without hindrance by Landlord or its agents.
41. EXCULPATION
Tenant agrees that Tenant shall look solely to Landlord's interest in
the Building and Landlord's personal property used in connection therewith for
the satisfaction of any claim, judgment or decree requiring the payment of
money by Landlord based on any default hereunder, and no other property or
assets of Landlord, its affiliates, successors, partners, shareholders,
subsidiaries, or assigns, shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any such claim, judgment,
injunction or decree.
42. TENANT AUTHORITY
In the event Tenant is a corporation, Tenant represents and warrants
that this Lease has been duly authorized, executed and delivered by and on
behalf of the Corporation and constitutes the valid and binding agreement of
Tenant in accordance with the terms hereof. In the event Tenant is a
partnership, Tenant represents and warrants that all of the persons who are
general or managing partners in said partnership have executed this Lease on
behalf of the partnership, or that this Lease has been executed and delivered
pursuant to and in conformity with a valid and effective authorization therefor
by all of the general or managing partners of such partnership, and is and
constitutes the valid and binding agreement of the partnership and each and
every partner therein in accordance with its terms. It is further agreed that
each and every present and future partner in the partnership shall be and
remain at all times jointly and severally liable hereunder and that the death,
resignation or withdrawal or any partner shall not release the liability of
such partners under the terms of this Lease unless and until Landlord shall
have consented in writing to such release.
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43. OVERRIDING LIMITATION.
Landlord and Tenant acknowledge and agree that the Premises have
heretofore been owned by Tenant or by Guarantor or by some other affiliate of
Tenant (the "Prior Owner"). As such, and notwithstanding any provision to the
contrary contained in this Lease, in no event shall Landlord (or its assigns)
be liable or responsible to Tenant, Guarantor, or to any other third party or
governmental entity for or as a result of any loss, liability, cost, damages,
or expense of any kind or character that may be claimed with respect to or that
may arise out of or be related to the presence, existence, or release, of or
any contamination of the Property by any Hazardous Substances that occurred or
was in existence at any time prior to the date upon which Landlord (or its
assigns) acquires fee title to the Premises (hereinafter, "Prior Environmental
Conditions"). In this regard, and without limiting the generality of the
preceding, Tenant and Guarantor do hereby waive, release and relinquish
Landlord, and Landlord's officers, managers, directors, agents, members,
partners, affiliates, and its and their respective successors and its assigns
from any loss, liability, cost, damages, or expense of any kind or character
that may be suffered or claimed by them with respect to or that may arise out
of or be related to the Prior Environmental Conditions.
43. RESTRICTIVE COVENANTS
Tenant and Landlord acknowledge that the Premises are subject to the
following restrictive covenants: (i) Covenant Running with the Land in Favor of
Metropolitan Dade County, filed January 30, 1989 in Official Records Book
13979, Page 1221; and (ii) Covenant Running with the Land in Favor of
Miami-Dade County, filed July 18, 2002 in Official Records Book 20535, Page
4023 (the "Restrictive Covenants"). Tenant acknowledges receiving a copy of the
instruments referenced above creating the Restrictive Covenants and further
covenants that, without limiting the provisions of Section 11 of this Lease it
shall at all times comply Restrictive Covenants in connection with its use of
the Premises.
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals, in triplicate, the day and year first above written.
LANDLORD:
MCMILLAN/MIAMI, LLC, a Florida
Signed, sealed, and delivered as to limited liability company
Landlord in the presence of:
By:
------------------------------------
Name:
----------------------------------
_________________________________ Title:
----------------------------------
Witness Date:
----------------------------------
_________________________________ Address for Notice Purposes:
Date
3003 W. Alabama
Houston, Texas 77098
Attn: Mr. Dan M. Moody, III
TENANT:
EGL EAGLE GLOBAL LOGISTICS, LP
Signed, sealed and delivered as
to Tenant in the presence of:
By: EGL Management, LLC General
________________________________ Partner
Witness
By:
------------------------------
________________________________ Jon Kennedy, Senior Vice
Date President, Corporate
Administration
Address for Notice Purposes:
EGL Eagle Global Logistics, LP
15350 Vickery Drive
Houston, TX 77032
Attn: Sr. Vice Pres., Corp, Admin.
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GUARANTY
As a material inducement to Landlord to enter into the Lease with
Tenant, and for other good and valuable consideration, the receipt and
sufficiency of all of which are hereby acknowledged and confessed, the
undersigned (the "Guarantor") does hereby, irrevocably and unconditionally,
warrant and represent unto and covenant and agree with Landlord that,
throughout the duration of the Lease and all extensions, expansions, or
renewals Guarantor hereby unconditionally guarantees the full, faithful and
punctual payment of all rental and other amounts due to Landlord under the
Lease by Tenant and the full, faithful and punctual performance by Tenant of
all the terms, provisions and conditions of the Lease, together with interest
or late charges on all of the foregoing as provided in the Lease and all other
costs and expenses of collection.
This is a guaranty of payment not of collection. The
liability of Guarantor shall be joint and several and primary and direct, and
in any right of action accruing to Landlord under the Lease, Landlord shall
have the right to proceed against Guarantor without having commenced any action
or obtained any judgment against Tenant provided, however, that Guarantor shall
have the same cure provisions afforded Tenant under the Lease. Guarantor hereby
waives the procedural defenses of the law of guaranty or surety. This guaranty
is assignable by Landlord to any entity to whom Landlord may assign it rights
under the Lease, without any required consent or approval from Guarantor.
Guarantor:
EGL, Inc.
By:__________________________________________
Jon Kennedy, Senior Vice President,
Corporate Administration
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BUILDING RULES AND REGULATIONS
1) Additional locks may be placed on the doors of the Building by
Tenant, provided that Landlord is immediately furnished with two (2) keys
thereto, Landlord will without charge furnish Tenant with two (2) keys for each
lock existing upon the Building when Tenant assumes possession of the Building
with the understanding that at the termination of the Lease all keys shall be
returned to Landlord.
2) No person shall at any time occupy any part of the Premises as
sleeping or lodging quarters.
3) Tenant shall not place, install or operate on the Premises any
engine, stove or machinery, or conduct mechanical operations or cook thereon or
therein, or place or use in or about the Premises any explosives, gasoline,
kerosene, oil acids, caustics, or any flammable, explosive, or hazardous
material without the written consent of Landlord.
4) Landlord will not be responsible for lost or stolen personal
property, equipment, money or jewelry from the Premises or public rooms
regardless of whether such loss occurs when any such area is locked against
entry or not.
5) Tenant shall not at any time display a "For Rent" sign upon the
Premises without the prior written approval of Landlord.
6) None of the entries, passages, doors, or hallways shall be blocked
or obstructed, or any rubbish, litter, trash, or material of any nature placed,
emptied or thrown into these areas, including any alleyways to the rear of the
Premises, or such areas be used at any time except for ingress or egress by
Tenant, Tenant's agents, employees or invitees.
7) The bathrooms and other water fixtures shall not be used for any
purpose other than those for which they were constructed. No person shall waste
water by interfering with the faucets or otherwise.
8) No vehicles except for material handling equipment such as fork
lifts shall be brought into the Building or the Premises. No animals shall be
brought into the Building or the Premises except those animals providing
assistance to the disabled.
9) In the event Landlord should advance upon the request, or for the
account of the Tenant, any amount for labor, material, packing, shipping,
postage, freight or express for articles delivered to the Premises or for the
safety, care and cleanliness of the Premises, the amount so paid shall be
regarded as additional rent and shall be due and payable forthwith to Landlord
from Tenant.
10) There shall not be any outside storage of goods, materials or
equipment in the side or front of the Premises. Tenant agrees to keep the area
immediately in front of and behind the Premises clean and free of all trash and
debris.
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SPECIAL STIPULATIONS
Attached to and Made a Part of Standard Industrial Lease
Dated December 2, 2002
By and Between
McMillan Investment Company, Ltd.
And
EGL Eagle Global Logistics, LP.
44. Commencing on the Commencement Date, base rentals shall be due and payable
pursuant to Section 3 as follows:
Months Rate P.S.F. Yearly Rate Monthly Rate
------ ----------- ----------- ------------
1-5 $0.00 $0.00 $0.00
6-30 $5.89 $2,147,541.12 $168,471.76
31-65 $6.45 $2,351,721.60 $195,976.80
66-100 $7.15 $2,606,947.20 $217,245.60
101-125 $7.65 $2,789,251.20 $232,437.60
44.a Commencing on the Commencement Date, and on the first day of each and
every calendar month thereafter, Tenant shall pay the following respective
amounts each month as Landlord's estimate of Tenant's obligation for Operating
Expenses (with a separate line item amount for property management fees,
pursuant to Section 9(b)(iii)), Taxes, and insurance premiums (but Tenant
agrees that such amounts shall be estimates only, and shall be subject to
reconciliation and adjustment, as more particularly provided in the relevant
provisions of the Lease):
Operating Expenses: $4,252.50
Taxes: $25,818.75
Insurance: $2,430.00
Property Management Fee: $3,037.50
---------
Estimated Monthly Payment (other than Base Rent): $35,838.75
However, after the first full calendar year of the Lease, Landlord and Tenant
agree that they shall re-evaluate both the Operating Expenses as a whole, and
the management fee component of the Operating Expenses, each party agreeing to
act in good faith.
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45. Landlord shall build the Building as per the Plans, as more particularly
set forth in the Build to Suit Addendum attached hereto. The Plans detail a
commercial building whose specifications are outlined by Exhibit "C" attached.
Landlord shall "turn-key" and be fully responsible for the construction of the
Building, excepting only those items marked as "Tenant Allowance" or
"Allowance" on Exhibit "C," and except as also provided in the Build to Suit
Addendum, below. For the sole purpose of constructing the improvements itemized
in Exhibit "D" (the "Leasehold Improvements"), Landlord shall provide to Tenant
a "Construction Allowance" of $1,167,000. Other than for cost overruns that are
not due to changes, modifications, and the like that are requested by Tenant
(Landlord agreeing that it will be responsible for all cost overruns that are
not due to changes, modifications, and the like that are requested by Tenant),
the Construction Allowance shall represent all of Landlord's financial
obligation to Tenant for the construction of the items listed in Exhibit "C"
(e.g., Landlord shall not be responsible for the cost of any changes or
modifications to any of such items listed on Exhibit "C" requested by Tenant
that cause the aggregate cost for the construction of such items listed on
Exhibit "C" to exceed the Construction Allowance).
Tenant shall reimburse Landlord for all costs for the construction of the
items listed in Exhibit "C" in excess of the Construction Allowance as a result
of any changes or modifications to any of such items listed on Exhibit "C"
requested by Tenant within ten (10) days after the receipt by Tenant of invoice
from Landlord for such overruns. Landlord shall be solely responsible for
selecting architects, engineers, designers, and contractors necessary for the
construction of Building. Landlord shall be solely responsible for managing the
construction of Building.
46. Landlord does hereby does hereby waive, release and relinquish Tenant,
Krystal Capital Management, L.P., James R. Crane, and Guarantor, and each of
their respective officers, directors, shareholders, agents, affiliates, and
their respective successors and assigns (hereinafter, the "Tenant Released
Parties") from any loss, liability, cost, damages, or expense of any kind or
character that may be suffered or claimed by Landlord with respect to or that
may arise out of or be related to, directly or indirectly, any contract,
agreement, understanding, negotiation, discussion, or transaction relating to
the Property, and involving or pertaining to Tenant, Guarantor, or any of their
respective affiliates, on the one hand, and Seefried Industrial Properties,
Inc. ("Seefried"), Cushman & Wakefield ("Cushman") and/or any of their
respective affiliates, on the other hand, that was or is in existence or that
transpired from the beginning of the world through the date of this Lease (the
"Prior Matters"). Without limiting the generality of the foregoing, Landlord
does hereby waive and release any right to seek any contribution or indemnity
from any of the Tenant Released Parties in the event Landlord suffers any loss,
liability, cost, damages, or expense of any kind or character as a result of a
claim or cause of action brought against Landlord by a third party (other than
a Tenant Released Party) arising out of or relating to any of the Prior Matters
other than with respect to , claims or allegations against any Tenant
Indemnified Party by Seefried, Cushman or their respective affiliates that are
"independent" of and are unrelated to the transactions contemplated by the
Lease and/or by the Purchase and Sale Agreement executed in connection herewith
(e.g., and only by way of illustration, an allegation that a Tenant Indemnified
Party committed fraud in the inducement in entering into the one or more of the
agreements with Seefried Agreements and/or Cushman, or a claim by Seefried or
Cushman for any sums payable to Seefried or Cushman that are already accrued
and owing by a Tenant Indemnified Party prior to the date of this Lease).
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47. While this Lease is in full force and effect, provided Tenant is not in
default of the terms, covenants and conditions thereof, Tenant shall have the
sole right or option to extend the original term of this Lease Agreement for
two (2) further consecutive terms of sixty (60) months each. Such extensions or
renewals of the original term shall be on the same terms, covenants and
conditions as the original term except that the rental during the extended
periods shall be the then current net market rental rate in the Miami Airport
submarket for properties comparable in size, location, age, and functionality.
Notice of Tenant's intention to exercise this right or option must be given in
writing to Landlord nine (9) months prior to the expiration of the then current
lease term or the option contained in this provision shall become null and void
and of no effect. The right or option to extend the original term of this Lease
Agreement provided to Tenant herein shall be for the exclusive benefit of the
Tenant and shall terminate upon the subletting of all or any part of the
Premises or assignment of this Lease unless the Lease is assigned to an
affiliate of Tenant. For purposes of providing notice and negotiating the
extension contemplated herein, Landlord agrees to work with only such
authorized persons designated in writing by the Senior Vice President of
Corporate Administration.
48. Tenant acknowledges that Landlord has provided Tenant with a copy of that
certain Covenant Running With the Land In Favor of Metropolitan Miami-Dade
County, dated January 11, 1989, recorded in Book 13979, page 1221, in the
public records of Miami-Miami-Dade County, Florida, which sets forth covenants
which are binding upon the property and the activities of Tenant thereon.
49. Landlord agrees to provide Tenant with the following additional "upgrades"
to the Building at Landlord's cost and expense, in addition to the Tenant
Allowance: (i) an amount from $15,000.00 not to exceed $35,000.00 to upgrade
Tenant's signage at the Premises; (ii) $75,000 to upgrade the concrete truck
apron.
36
BUILD-TO-SUIT ADDENDUM
1. Landlord shall use reasonable efforts to cause the Building to be
constructed in accordance with the provisions of this Paragraph 1 on or before
November 1, 2003.
1.1 Landlord and Tenant have agreed upon the Plans (which cover both
the Building shell and the interior office space of the Building).
1.2. Selection of Architect and Contractor. Landlord has selected or
plans to select an architect ("Architect") and contractor ("Contractor").
Tenant shall promptly submit to the Architect and/or Contractor any and all
information reasonably requested by Architect and/or Contractor with respect to
the Building and Premises.
1.3. County Approval. Landlord shall cause the Architect and/or
Contractor to deliver the Plans to Miami-Dade County for approval. Any changes
required by Miami-Dade County shall require Tenant's approval, provided that
Tenant shall not unreasonably withhold such consent so long as the changes do
not require a material or substantial change or modification to the Plans
approved by Tenant. Decreasing the length of the truck court, any change in the
size of the Building or number of vehicle or equipment parking positions shall
be deemed, without limitation, a material or substantial change or
modification. If Tenant's approval is required, Landlord shall submit such
plans reflecting such changes or modifications required by Miami-Dade County
(collectively, "Modifications") to Tenant and within five (5) business days
after Tenant receives the Modifications, Tenant shall either approve or
disapprove the Modifications for reasonable and substantial or material reasons
(each, a "Design Problem"). Landlord shall make such changes as are necessary
in order to correct any Design Problem and shall resubmit the corrected
Modifications to Tenant. Within five (5) business days after Tenant receives
the revised Modifications, Tenant shall approve or disapprove the
Modifications. This procedure shall be repeated until the Modifications are
finally approved by Tenant. In the event that Tenant fails to provide written
notice of disapproval within the required time period, the Modifications shall
be deemed approved. In the event Landlord is required to seek Tenant approval,
Landlord shall deliver four copies of documents at the address required for
notices under the Lease (or to such separate addresses as Tenant may provide in
writing). In the event that Landlord, Tenant, and Miami-Dade County are unable
to agree as to the resolution of a Design Problem or Modification within twenty
one (21) days after the initial submission of such Modification to Tenant by
Landlord, then Landlord may, at Landlord's option, cancel and terminate the
Lease by notice to Tenant given at any time thereafter (provided an agreement
has not been reached by such time by Landlord, Tenant, and Miami-Dade County).
Upon any such cancellation and termination, the parties shall each respectively
be released from all further liability under the Lease, irrespective of what
costs or expenses either of such parties shall have incurred prior to any such
cancellation and termination.
2. Punch List. Tenant shall submit to Landlord, within thirty (30) days after
Tenant's occupancy of the Premises, a list of items which Tenant requests that
Landlord repair or complete ("Punch List"). Punch list items shall not include
damage or wear and tear caused by Tenant. Landlord hereby agrees to repair or
complete all such items set forth on Tenant's Punch List within a period of no
more than forty-five (45) days following Landlord's receipt of Tenant's Punch
List.
37
3. Plan Modifications; Change Orders. Landlord and Tenant each recognize that
changes in the Construction Plans may be necessary as construction proceeds on
the Building. However, any modification to the Plans shall be mutually approved
in writing by Tenant and Landlord. For any changes to the Plans hereafter
requested by Tenant ("Tenant Change Orders"), Landlord, as soon as reasonably
practicable, will advise Tenant of its or its Contractor's best estimate, which
estimates are not binding on Landlord or the Contractor, of the number of days
of delay that will be caused by such changes requested in such Tenant Change
Order, any increase in cost associated with the implementation of such changes
and any additional requirements necessary to accommodate the noted changes.
Provided Tenant notifies Landlord to in writing proceed with such changes
within five (5) business days of Tenant's receipt of Landlord's notice as
provided below, and Tenant agrees in writing: (A) to reimburse Landlord for
Landlord's costs and expenses associated with such Building modification
including, without limitation, the actual costs incurred by Landlord to
construct such Building modifications and changes pursuant to such Tenant
Change Order, and reasonable additional architectural and engineering fees, and
(B) if applicable, to comply with Landlord's additional reasonable requirements
(such as changes in penetration locations necessary because of the structure),
then Landlord will proceed to make such requested modifications to the
Building; provided, however, that all such added costs and expenses shall be
Tenant's sole obligation and responsibility, and Tenant shall promptly
reimburse Landlord for all such additional costs and expenses upon substantial
completion of such requested modifications. Notwithstanding the foregoing,
Landlord shall not be obligated to proceed with any requested modifications to
the Building contained in a Tenant Change Order if Landlord in good faith
determines that any such modification will adversely impact or jeopardize the
Building (including without limitation, the marketability thereof) or which
would unreasonably delay the Substantial Completion of the Building. Further,
also as set forth above in the Lease, all delays in Substantial Completion that
are the result of a Tenant Change Order shall not operate to extend the Rent
Commencement Date. Further, all Tenant approvals as well as all Tenant Change
Orders shall be made by only the officers of Tenant of the level of Vice
President or higher, or the same shall not be binding upon or effective as
against Landlord.
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