EXHIBIT 10.13
WAREHOUSE LEASE
THIS WAREHOUSE LEASE (herein this "Lease") is made and entered into as of
October 15, 1999, by and between Seneca G&H, L.L.C., a Florida limited liability
company, having an address at ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Landlord") and ALADDIN MANUFACTURING CORPORATION, a Delaware
corporation, with its home office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
ARTICLE I
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DEMISE OF PREMISES
1.1 Premises. For and in consideration of the covenants and agreements
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contained herein and other valuable consideration, Landlord hereby leases to
Tenant the hereinafter defined "Premises" being approximately 186,537 square
feet of gross leasable area, measured from the outside of exterior walls and
from the midpoint of demising walls, ("GLA") in a warehouse building to be
constructed containing approximately 256,592 square feet of GLA (the "Building")
located on a parcel of land located in Pembroke Park, Florida, and more fully
described and/or depicted on Exhibit "A-1" attached hereto and incorporated by
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reference herein ("Land"), together with the non-exclusive right to use the
easements and appurtenances thereto being Common Areas. The portion of the
Building and the Land being leased to Tenant hereunder is sometimes referred to
as the "Premises".) The Premises are depicted as the crosshatched area on
Exhibit "A-2" hereto (the "Site Plan"). The Premises shall include exclusive use
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of approximately 48 loading docks and associated truck aprons in the leased
Premises, parking spaces for Tenant's employees, customers, contractors, agents,
invitees and licensees as depicted in Exhibit "A-3", and non-exclusive rights
of access, ingress and egress over the driveways and other access ways on the
Land and Park. If the Premises constitute the entire Building, then references
to the Building shall be deemed to be the Premises, and Tenant shall have
exclusive use of any and all loading docks, truck ▇▇▇▇▇, compactor pads and
similar appurtenances to the Building and those other areas depicted on Exhibit
"A-2" as being for Tenant's exclusive use, as well as the non-exclusive use of
the Common Areas (hereinafter defined).
ARTICLE II
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APPROVALS; TENANT IMPROVEMENTS; SPECIFICATIONS/ACCESS
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2.1 Approvals. Landlord shall be solely responsible, at Landlord's cost and
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expense, for obtaining and maintaining all permits, approvals, zoning,
variances or other matters (collectively, the "Approvals") that may be required
by the applicable governmental agencies, bureau departments or any other
governmental entity (a "Governmental Authority") for the use and operation of
the Premises for warehouse, light industrial and freight movement use (excluding
occupational licenses and other licenses required for Tenant's particular use of
the Premises). Tenant shall cooperate with Landlord in Landlord's obtaining of
the Approvals. Landlord warrants and represents that such use is allowed by law
as of the date hereof.
2.2 Tenant Improvements. No later than the hereinafter defined Commencement
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Date, Landlord shall complete the work to the Premises described in Exhibit "B"
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hereto ("Landlord's Improvements") and shall deliver the Premises to Tenant on
the Commencement Date with all of the Tenant Improvements, as described therein,
substantially completed and with a permanent or temporary certificate of
occupancy for Tenant's use, operation and occupancy thereof. Landlord warrants
and represents that as of the Commencement Date, the Building will be in good
condition and repair and structurally sound [which condition includes, without
limitation, that the roof will be leak-free and not in need, or in imminent
need, of repair and that the plumbing, electrical, heating, ventilation and
air-conditioning ("HVAC") systems will be in good operating condition and repair
and not in need, or imminent need, of repair]. Landlord shall maintain the
Building and the Land as provided for in Article IX below.
2.3 Premises Specifications/Access. Landlord warrants and represents that
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(i) the Premises have a height clearance of no less than twenty four (24) feet,
(ii) the Premises have truck loading facilities as shown on the Site Plan and
including forty-eight (48) dock high doors, (iii) there is access to the
Premises over the Common Areas (hereinafter defined) to publicly dedicated (and
accepted) right-of-way, (iv) the office shown on the Site Plan shall be heated
and air conditioned pursuant to Landlord's Work, (v) the Premises shall include
men's and women's restrooms and (vi) the warehouse lighting shall be as set
forth in Exhibit "B" or, if not therein set forth, then as
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heretofore agreed to by Landlord and Tenant and shall be in good working order
and repair as of the Commencement Date.
ARTICLE III
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LEASE TERM
3.1 Initial Term. The initial term (herein sometimes referred to as the
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"Initial Term") of this Lease shall commence on the earlier of: (A) one hundred
and eighty (180) days following the latter of (i) the full execution and
delivery of this Lease, (ii) obtaining approval of all necessary plans and
specifications for the intended improvements, including the tenant improvements,
and (iii) obtaining of all necessary permits for the construction of the
intended improvements, including the tenant improvements, or (B) the date on
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which Landlord delivers to Tenant a certificate of substantial completion issued
by Landlord's architect, together with a permanent or temporary certificate of
occupancy confirming that the Premises are substantially complete and available
for occupancy, except only punchlist items that Landlord shall complete within
thirty days thereafter (subject to availability of materials) (the "Commencement
Date"). Notwithstanding anything herein to the contrary, the Commencement Date
shall not be prior to August 1, 2000. The Initial Term shall terminate at the
end of the last day of the tenth (10th) Lease Year.
For purposes of this Lease, the term "Lease Year" shall mean each 12-month
period commencing on the Commencement Date or the anniversary date thereof. If
the Commencement Date does not fall on the first day of a month, the first Lease
Year shall consist of the partial month in which the Commencement Date occurs
and the twelve (12) consecutive months immediately following said partial month.
If for any reason Landlord cannot deliver possession of the Premises to Tenant
on the Commencement Date, Landlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease, but in such
case Tenant shall not be obligated to pay rent or any other charges hereunder
until Landlord has delivered possession of the Premises to Tenant in accordance
with Section 2.2 above. In the event that Landlord has not delivered the
Premises to Tenant within thirty (30) days after the Commencement Date, the Base
Rent and CAM Costs that would otherwise be due from Tenant will ▇▇▇▇▇ for the
number of such delay day(s) after said thirty day period; Landlord shall deliver
the Premises to Tenant as required herein as expeditiously as reasonably
possible.
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Landlord agrees to provide Tenant with at least ten (10) business days advance
written notice of the date on which Landlord anticipates completion of the
Premises and the obtaining of the applicable certificate of occupancy. If the
Premises are ready for occupancy prior to the Commencement Date, then Tenant may
enter upon the Premises to install its trade fixtures, telephone systems,
computer systems and for other purposes allowed by this Lease other than the
operation of its business, subject to all of the terms and conditions hereof,
except that Tenant shall not, until the Commencement Date has occurred, have any
obligation to pay Base Rent or Tenant's Share of CAM Costs or Real Estate Taxes,
as hereinafter provided for.
Tenant shall have two (2) successive year options (each such option being
herein sometimes referred to as an "Extension Option") to extend the term of
this Lease for five (5) Lease Years (each such five (5) year term being herein
sometimes referred to as an "Extension Term"), exercisable by the delivery of
written notice to Landlord by Tenant not less than 9 months prior to the
expiration of the then-current Initial Term or Extension Term, as the case may
be; provided, however, that, if Tenant shall fail to give any such notice within
the aforesaid time limit, Tenant's right to exercise any Extension Option shall
nevertheless continue until thirty (30) days after Landlord shall have given
Tenant notice of Landlord's election to terminate such option, and Tenant may
exercise such option at any time until the expiration of said thirty (30) day
period, but under no circumstances may Tenant exercise any such option during
the last sixty (60) days of the then current Initial Term or Extension Term. If
the Extension Options (or any of them) are duly exercised, the term of this
Lease shall be automatically extended for the applicable Extension Term, upon
all of the same terms, conditions and covenants as set forth in Exhibit "C",
without the requirement of any further instrument to evidence such extension.
3.2 Reversion to Landlord. On or before the last day of the Term, Tenant
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shall peaceably surrender and yield up to Landlord the Premises. Tenant shall
have the express right to remove and to allow any subtenants to remove any of
their trade fixtures and personal property; provided, however, that the Premises
shall be left in the condition existing on the Commencement Date ordinary wear
and tear excepted.
ARTICLE IV
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RENT
4.1 Base Rent. Tenant covenants and agrees to pay Landlord at the above
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referenced address, or such other place as Landlord shall designate in writing,
Base Rent and all Florida Sales Taxes due under this Lease, in advance, without
demand, set off or deduction, except as expressly provided for herein, in equal
monthly installments, on the first day of each and every calendar month during
the Term from and after the Commencement Date, as is set forth on the Rent
Schedule attached as Exhibit "C" hereto. The parties acknowledge and agree that
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the initial Base Rent is based on five dollars and twenty cents ($5.20) per
square foot of GLA per year; the Base Rent, as adjusted during the Initial Term,
is set forth in Exhibit "C" hereto. Within the first ninety (90) days after the
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Commencement Date, Tenant may cause the Premises to be measured by a qualified
engineer or architect acceptable to Landlord and, if the GLA of the Premises as
properly calculated by such engineer or architect is less than 186,537 square
feet, then the Base Rent shall be adjusted accordingly. If Tenant does not cause
the Premises to be measured, pursuant to the foregoing, within the first ninety
90 days after the Commencement Date, then the Premises shall be deemed to
contain 186,537 square feet of GLA. Landlord covenants and agrees to make good
faith efforts to cause the Premises to contain 186,537 square feet of GLA.
4.2 Late Charges. If Tenant is delinquent in any monthly installment of
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Base Rent, Tenant shall pay to Landlord on demand a late charge equal to 5
percent of such delinquent sum. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as a penalty.
ARTICLE V
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TAXES
5.1 Real Estate Taxes
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(a) During each month of the Initial Term and any Extension Term(s), on
the same date that Base Rent is due, Tenant shall pay Landlord an amount equal
to 1/12 of the annual cost, as estimated by Landlord from time to time, of
Tenant's Share of real estate taxes and assessments for betterments and
improvements that are levied or assessed by any lawful authority
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on the Premises ("Real Estate Taxes"). Landlord shall pay all Real Estate Taxes
that are levied or assessed by any lawful authority on the Premises and
Landlord's other real property within the same tax parcel prior to the date same
become overdue. Landlord shall take the maximum benefit of any law allowing Real
Estate Taxes to be paid in installments, and in such event only the amount
actually paid by Landlord during the applicable tax year shall be included in
Real Estate Taxes for purposes of this Article. Landlord agrees to pay all Real
Estate Taxes prior to the last date that the same may be paid without penalty or
interest, or if a discount shall be available for early payment, prior to the
last day that such discount is available. Without cost to Tenant, Landlord shall
bear all interest, penalties, late charges and lost discount amounts incurred as
a result of Landlord's failure to timely pay any installment of Real Estate
Taxes. The Real Estate Taxes for any tax year shall mean such amounts as shall
be finally determined to be the Real Estate Taxes payable during such tax year
less any abatements, refunds or rebates made thereof. The parties shall make
appropriate adjustments to previous amounts received by Landlord from Tenant on
account of any abatements, refunds, rebates, or increases in Real Estate Taxes,
immediately following the determination of the amount of such abatements,
refunds, rebates, or increases. Prior to the Commencement Date, Landlord shall
pay all Real Estate Taxes before they become overdue.
(b) Real Estate Taxes to be paid by Tenant shall not include the following:
(i) income, intangible, franchise, capital stock, estate or inheritance taxes or
taxes substituted for or in lieu of the foregoing exclusions; (ii) any taxes or
any assessment for special improvements to the Land or the Building, including
but not limited to the widening of exterior roads, the installation of or hook
up to sewer lines, sanitary and storm drainage systems and other utility lines
and installations, provided that such assessment is made prior to the date
hereof and do not benefit Tenant; (iii) taxes gross receipts or revenues of
Landlord from the Premises or other portions of the Building, except for the
Florida Rent Sales Tax (which shall be paid by Tenant); or (iv) impact fees.
5.2 Proration of Taxes
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(a) Tenant shall pay Landlord, within fifteen (15) days following
Landlord's written request and invoicing, for any amount by which the Tenant's
Share of Real Estate Taxes actually
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exceeds the sum previously paid by Tenant to Landlord for the payment of such
Real Estate Taxes. Said invoice shall be accompanied by a computation of the
amount payable.
(b) If the term of this Lease shall terminate on any date other than the
last day of a tax fiscal period, the amount payable by Tenant during the tax
fiscal period in which such termination occurs shall be prorated on the basis
which the number of days from the commencement of said tax fiscal period to and
including said termination date bears to the number of days in the fiscal
period. A similar proration shall be made for the tax fiscal period in which the
Commencement Date occurs.
(c) As used in this Article V, the term Tenant's "Share" shall mean a
fraction, the numerator of which shall be the floor area of the Premises and the
denominator of which shall be equal to the aggregate of the floor area of all
buildings on the tax parcel on which the Building is located. Tenant shall pay
the estimated Tenant's Share of Real Estate Taxes monthly, together with its
payments of estimate CAM Costs (hereinafter defined), with adjustments to be
made promptly after actual Real Estate Tax Costs are known.
(d) The GLA of the Building will be approximately 256,592 square feet and
(B) the GLA of the Park will be approximately 1,520,000 square feet, therefore,
Tenant's Share of the Building will be approximately is 72.70% and Tenant's
Share of the Park will be approximately 12.27%.
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ARTICLE VI
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COMMON AREAS
6.1 Definition. "Common Areas" (or "Common Area") shall mean all
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exterior/outdoor areas, space, installations and equipment on the Land [and
elsewhere in the business park (the "Park") of which the Land is a part, if the
Land is part of a larger business park] for the common use and benefit of the
tenants of the Park, their employees, agents, licensees, customers and other
invitees, including without limitation parking areas, exits, entrances, access
roads, driveways, sidewalks, retaining walls, loading platforms and ramps, and
landscaped areas, as such Common Areas are depicted in the Site Plan (which Site
Plan may be amended by Landlord from time to time). The parties acknowledge
that, at this time, there are no indoor common areas on the Land or elsewhere in
the Park. If the Land is not part of a larger business park, then the term
"Park" shall refer only to the Land. Landlord shall be responsible, at
Landlord's sole cost and expense, be responsible for the initial construction
and installation of the Common Areas in good and workmanlike manner and in
compliance with all governmental requirements.
6.2 Use of Common Areas. Landlord hereby grants to Tenant, its licensees,
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subtenants, concessionaires, successors and assigns, and its and their
employees, agents, licensees, customers, and invitees the non-exclusive right
and privilege to use the Common Areas during the term hereof and any extensions
of same, continuously and without interruption, in common with other tenants of
the Park. Landlord shall make no material change to the Common Areas that would
have a materially adverse impact on Tenant's operations.
6.3 Parking. Landlord shall maintain on the Land at least the minimum
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number of parking spaces required by applicable governmental rules, regulations
and ordinances without variance (other than variances granted prior to the date
hereof). Landlord shall provide all parking without the imposition of any
parking charge.
6.4 Operation and Maintenance. Landlord, as a component of CAM Costs of
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which Tenant is responsible for Tenant's Share, agrees to be responsible for the
operation, maintenance, repair, and associated administration of the Common Area
in good
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condition and repair and in a clean condition, which responsibilities shall
include but not be limited to sweeping of the parking area and sidewalks;
arrangements for the limited removal of trash generated by the offices within
the Building and trash and obstructions caused by inclement weather, lighting of
the Common Area; retention of security personnel to the extent the Landlord and
Tenant reasonably agree such to be appropriate; limited fire protection; paving
of the parking area; and repair and maintenance of all Common Area improvements.
6.5 CAM Costs. Tenant shall be responsible to pay its CAM Share of all
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costs incurred by Landlord in operating and maintaining the Premises, the
Building, and the Common Area, which costs shall include, without limitation
those relating to management, administration, insurance, real estate taxes and
assessments, maintenance expenditures, etc. ("CAM Costs"). CAM Costs shall not
include any Capital Expenditure, except for the amortized portion of any Capital
Expenditure reasonably made for the general benefit of all tenants of the
Building, which amortization shall be made over the estimated actual useful life
of the improvement in question. As used herein, the term "Capital Expenditure"
shall mean those expenditures which in accordance with generally accepted
accounting principles are capitalized as opposed to being accounted for as
expenses. As used in this Article VI, the term "CAM Share" shall mean a
fraction, the numerator of which shall be the number of square feet of GLA
(which shall be measured from the outside of exterior walls and from the
midpoint of demising walls) in the Premises and the denominator of which shall
be equal to the aggregate of the GLA of all buildings then existing in the Park;
Tenant's CAM Share shall be published to Tenant periodically. CAM Costs shall be
billed monthly. Estimated CAM Costs for the first Lease Year shall be based on
Landlord's good faith estimate that Tenant's CAM Share of CAM Costs, together
with Tenant's Share of Real Estate Taxes, will total $1.20 per square foot of
GLA for the entire first Lease Year. Landlord has calculated said estimate in
good faith.
In addition to the foregoing, CAM Costs shall not include (i) expenses
incurred in leasing space, such as legal expenses, brokerage commissions or
advertising or promotional expenses, (ii) interest and amortization under
mortgages or any other secured or unsecured loan payable by Landlord, (iii)
expenses separately reimbursed by any other tenants of the Park
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(excluding reimbursements to Landlord for such tenants' prorata share of CAM
Costs), (iv) financing and refinancing costs, including fees paid by Landlord to
obtain financing or refinancing such as origination fees and brokerage
commissions, (v) non-cash depreciation, (vi) costs incurred in connection with
the enforcement of leases, including attorneys' fees or other costs and expenses
incurred in connection with summary proceedings to dispossess any other tenant
in the Park, (vii) any expenses associated with any special requirements of a
particular tenant other than Tenant, (viii) any costs attributable to the
original design or construction of the Premises, Building or Park (or any
portion thereof), (ix) any costs associated with Y2K computer (and related)
problems, (x) any Improvement except for a hereinafter defined Permitted
Expenditure, (xi) any costs, fines, interest, penalties, legal fees or other
expenses associated with violations by Landlord of any law, rule or other
governmental requirement or with respect to late payment for utilities, taxes or
any other service or product (except if caused by Tenant) or (xii) the cost of
maintaining, repairing or replacing the roof, foundation and/or structural walls
of the Premises (unless same have been damaged by Tenant's actions or
inactions), Building or any other Building in the Park. For the purposes of this
Lease, a "Permitted Expenditure" shall be Improvements made to the Building or
lift station which are (a) primarily for the purpose of reducing operating
expense costs or otherwise improving the operating efficiency of the Building or
(b) required to comply with (A) any laws, rules or regulations of any
governmental authority newly enacted after the date hereof or (B) any changes
after the date hereof in the interpretation or enforcement of the existing laws,
rules or regulations of any governmental authority. The cost of such
Improvements shall be amortized over a period of not less than the useful life
thereof and not more than ten (10) years and shall, at Landlord's option,
include interest at the lesser of (yy) ten percent (10%) per annum or (zz) two
percent over the prime rate of interest then in effect for NationsBank, N.A. The
portion of the annual amortized cost to be included in CAM Costs in any calendar
year with respect to a capital improvement which is intended to reduce expenses
or improve the operating efficiency of the Building shall equal such annual
amortized cost.
At least sixty (60) days prior to the commencement of the second Lease Year
and every Lease Year thereafter, Landlord shall deliver to Tenant a written
estimate of Landlord's
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projected CAM Costs for the forthcoming Lease Year. Within ninety (90) days
after the expiration of each calendar year Landlord shall furnish Tenant a
certified statement showing the CAM Costs broken down in reasonable detail,
showing the items included therein, and the manner of the computation of
Tenant's CAM Share for such payment and the payments made by Tenant with respect
to such year. If Tenant's aggregate payments for such costs with respect to such
year are greater than Tenant's CAM Share of such costs, Tenant shall receive a
credit for the excess against Base Rent and other payments from Tenant next
becoming due to Landlord (or refunded to Tenant, if the Term has expired); if
said payments are less than said CAM Share, Tenant shall pay to Landlord the
difference within thirty (30) days thereafter.
Landlord shall retain its records relating to the CAM Costs at Landlord's
principal office or that of the management company managing the Park, and upon
reasonable prior notice to Landlord and the management company, Tenant shall
have the right to inspect all of Landlord's records relating to such costs.
Appropriate adjustments shall be made for errors in the computation of such
costs revealed by such audit or inspection. If any audit by Tenant indicates an
overcharge in the amount of Tenant's CAM Share by more than five percent (5%),
the reasonable cost of such audit shall be paid on demand by Landlord to Tenant;
otherwise the expenses of Tenant's audit shall be borne by Tenant and Tenant
must reimburse Landlord for the costs charged by the management company with
respect to such audit. Landlord shall retain its CAM Costs records for at least
thirty-six (36) months after the expiration of each calendar year.
ARTICLE VII
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UTILITIES
7.1 Utilities. Landlord shall design the Building pursuant to the plans and
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specifications such that the applicable utility companies may provide
electricity, gas, telephone, sewerage and other utilities to the Premises, in
sufficient quantities to serve Tenant's needs for the use contemplated
hereunder. Landlord shall install, at Landlord's expense, all utility meters
necessary for measuring the consumption of utilities serving the Premises and
Tenant shall pay the applicable utility companies or governmental agencies for
all such utilities consumed on the Premises.
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ARTICLE VIII
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USE AND ASSIGNMENT
8.1 Use. The Premises may be used for warehousing, distribution, light
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industrial uses and uses incidental thereto and, with Landlord's consent (which
shall not be unreasonably withheld or delayed), any other lawful purpose.
8.2 Assignment and Subletting. Tenant shall have the right to assign this
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Lease, or to sublet all or any portion of the Premises to any party controlling,
controlled by or under common control with Tenant, any entity with which Tenant
is merged or consolidated or to any party that purchases all or substantially
all of Tenant's assets in the geographical region where the Premises are
located, provided that subsequent to such subletting or assignment Tenant
remains liable for the payment and performance of Tenant's obligations under
this Lease and, in the case of any assignment, the assignee assumes Tenant's
obligations under this Lease. Any other assignment or subletting shall require
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. Notwithstanding anything herein to the contrary, Tenant
shall not assign or sublet any, or all, of the Premises to any tenant (or
affiliate thereof) leasing space in the Park or to any entity (or affiliate
thereof) with which Landlord has discussed the prospect of leasing space in the
Park, unless Tenant obtains Landlord's prior written consent which shall be at
Landlord's sole and absolute discretion. No subletting or assignment shall
(i) release Tenant from liability hereunder or (ii) release the guarantor of
Tenant's performance under this Lease from liability under the applicable
guaranty agreement.
ARTICLE IX
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MAINTENANCE; ALTERATIONS; FIXTURES
9.1 Landlord's Repairs. In addition to Landlord's obligations as set forth
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in Articles II and VI hereof, Landlord shall maintain in good repair the walls,
foundations, roof, gutters, downspouts, exterior and all structural portions of
the Building, and all plumbing, electrical, sewage and heating, ventilating and
air conditioning ("HVAC") lines and ducts in or passing through the Premises
that serve other tenants in the Building or that are located outside the
Premises but that serve the Premises. Landlord shall in addition make such
repairs,
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replacements or modifications of building structure or component systems as are
required by law as of the Commencement Date, regulation or ordinance pertaining
to the Premises which are not due or attributable to Tenant's specific manner
of operating in the Premises. In making any repairs hereunder, Landlord shall
not unreasonably interfere with Tenant's normal operations in the Premises.
9.2 Tenant's Repairs. Subject to the provisions of Section 9.1
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hereinabove and Landlord's warranty and representation that the Premises and all
the systems therein will be in good condition and repair as of the Commencement
Date, Tenant shall be responsible for interior, non-structural repairs to the
Premises including, without limitation, the repair of component systems serving
only the Premises, entries, doors, windows, fire sprinklers, fire protection
systems, etc., unless any such repairs or replacements are necessitated by
Landlord's failure to promptly perform its obligations hereunder, by damage
caused by the wrongful acts or negligence of Landlord, its employees, agents and
contractors, or by damage by fire or other casualty for which Landlord is
responsible for repairing pursuant to this Lease. In light of the substantial
costs of replacing any portions of the Premises' HVAC system, the parties hereby
agree that in the event such system requires any replacement during the last
five (5) years of the Initial Term, Landlord shall reimburse Tenant on the
expiration or earlier termination of this Lease for the unamortized portion of
such expense based on the date of installation of such equipment and the useful
life of such equipment, provided that such equipment is not user specific or
that such equipment is not replaced as a result of damage caused by Tenant's
actions or inactions.
9.3 Alterations. Tenant shall have the right to make such alterations to
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the Premises as Tenant shall from time to time deem necessary for the operation
of Tenant's business provided that (i) Tenant shall first obtain Landlord's
prior written consent, (ii) Tenant shall perform such work at Tenant's sole
expense, (iii) such alterations shall not impair the structural integrity or
diminish the value of the Premises, and (iv) Tenant provides Landlord with AS
Built plans for such alterations and agrees to remove same, at Landlord's
request, upon expiration or termination of this Lease. Landlord shall execute
all necessary instruments required to obtain licenses and permits to make such
alterations from the applicable governmental authorities. All
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alterations, additions and improvements made by Tenant to the Premises
("betterments and improvements") remaining in the Premises after the expiration
or other termination hereof shall become the property of Landlord upon the
termination of this Lease without any compensation to Tenant and shall be
surrendered at such time as a part of the Premises.
9.4 Liens. Each party hereto shall promptly pay when due the entire cost
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of all work done by it to the Premises and shall keep the Premises free of liens
for labor or materials. Should mechanics', materialmen's or other liens be filed
against the Premises by reason of the acts of either party hereto, such party
shall cause the lien to be canceled and discharged of record by bond or
otherwise within thirty (30) days of receiving actual notice of such lien.
9.5 Trade Fixtures. Any trade fixtures, furniture and equipment that
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Tenant installs in the Premises at its expense prior to or during the Term
hereof shall remain Tenant's property, and may be removed by Tenant, as long as
Tenant repairs any damage to the Premises caused by such removal and Tenant is
not in default under this Lease.
ARTICLE X
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INSURANCE
10.1 Landlord's Insurance. Landlord shall at all times maintain general
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commercial liability insurance covering the Park, including but not limited to
the Common Areas thereof against claims for personal injury and damage to
property naming Tenant as an additional insured under a policy, with minimum
limits of $1,000,000 for personal injury or death per person, $5,000,000 per
occurrence and not less than $500,000 for property damage or a single limit
policy in the minimum amount of $5,000,000. In addition, Landlord shall carry
and maintain all-risk (Special Form) property insurance, covering the Building
for the full replacement cost thereof. Landlord shall also maintain Workers'
Compensation or similar insurance to the extent required by law. Throughout
Landlord's construction and thereafter throughout the term of this Lease,
Landlord shall maintain liability insurance in amounts reasonably acceptable to
Tenant.
10.2 Tenant's Insurance. Tenant shall maintain a policy of general
------------------
commercial liability covering the Premises with minimum
16
limits of $1,000,000 for personal injury or death per person, $5,000,000 per
occurrence and not less than $500,000 for property damage or a single limit
policy in the minimum amount of $5,000,000. Tenant shall keep in force Workers'
Compensation or similar insurance to the extent required by law. Notwithstanding
anything to the contrary contained herein, as long as Tenant's net worth (or the
net worth of any party guaranteeing Tenant's obligations under this Section
10.2) is at least $100,000,000.00, Tenant shall have the right to self insure
part or all of any of the aforesaid insurance coverages in its sole discretion.
In the event that Tenant elects to self insure all or any part of any risk that
would be insured under the policies and limits described above, and an event
occurs where insurance proceeds would have been available but for the election
to self insure, Tenant shall make funds available to the same extent that they
would have been available had such insurance policy been carried by a third
party insurance company; in addition, Tenant shall indemnify Landlord and hold
Landlord harmless from any losses attributed to Tenant's failure to timely make
all such funds available. Notwithstanding the foregoing provisions permitting
Tenant's self insurance, in the event that, at any time, Landlord's lender(s)
and/or the Park insurance provider(s) require that Tenant obtain the requisite
insurance from a third party insurance company, Tenant shall do so.
10.3 Insurance Certificates. All of the foregoing insurance policies
----------------------
referred to or described in Sections 10.1 and 10.2 above shall be written with
companies licensed to do business in the state in which the Premises are located
with a financial rating of VIII or better and a policyholder's rating of A- or
better in the latest edition of Best's Rating Guide on Property and Casualty
--------------------------------------------
Insurance Companies and shall provide that the other party hereto shall be given
-------------------
a minimum of ten (10) days' written notice by any such insurance company prior
to the cancellation, termination or alteration of the terms or limits of such
coverage. Each party shall deliver to the other party hereto the foregoing
insurance policies or certificates thereof at or prior to the date that same are
required to be in effect and evidence of all renewals or replacements of same
not less than ten (10) days prior to the expiration date of such policies. All
such policies may be maintained under a blanket insurance policy of Landlord or
Tenant.
17
10.4 Mutual Release and Waiver of Subrogation. Landlord and Tenant hereby
----------------------------------------
release each other and anyone claiming through or under the other by way of
subrogation or otherwise from any and all liability for any loss of or damage to
property, whether caused by the negligence or fault of the other party to the
extent of the property insurance required to be carried by the waiving party
hereunder. In addition, Landlord and Tenant shall cause each insurance policy
carried by them insuring any of the improvements on the Land or the contents
thereof, to be written to provide that the insurer waives all rights of recovery
by way of subrogation against the other party hereto (and any mortgagee of such
party) in connection with any loss or damage covered by the policy. If no
responsible and qualified insurer will provide a waiver of subrogation without
extra charge or premium, then the insuring party shall inform the other party
that such additional charge or premium is required and said other party may
elect to (a) pay such extra charge or premium or (b) waive the requirement for
the waiver of subrogation (in which case the waivers of claim set forth herein
shall be ineffective to the extent that same would void, invalidate or otherwise
vitiate any insurance coverage). In case such waiver cannot be obtained, even at
an additional cost, then item (b) in the immediately preceding sentence shall
become effective. Any liability insurance coverage carried by either party
hereto shall name the other party and, upon request, any lender of such other
party as additional insured thereunder and each party hereby waives claims
arising from the other party's negligence to the extent of such insurance
coverage.
10.5 Mutual Indemnification. Tenant and Landlord agree to indemnify and
----------------------
hold each other harmless from and against any and all claims, damages or causes
of action for damages brought on account of injury to any person or persons or
property, or loss of life, arising out of (i) the failure to comply with its
obligations hereunder by Landlord or Tenant, respectively, or (ii) the use,
operation or maintenance of the Premises by Tenant or by the use, operation or
maintenance of the remainder of the Building and other improvements on the Land
by Landlord, except for matters arising from the gross negligence or willful
misconduct of the party seeking indemnification. Notwithstanding any other
provisions set forth herein, the parties hereby agree that in the event of any
damage to a party, including all personal and property damages and losses to a
party's employees or invitees, each party shall resort to any and all insurance
coverage available prior to asserting any
18
claim or demand against the other party or its assets. No insurer is meant to be
a third party or other beneficiary of any provision contained in this Lease.
ARTICLE XI
----------
DAMAGE OR DESTRUCTION
11.1 Damage and Destruction. Except as otherwise provided herein, if the
----------------------
Premises are damaged by fire or other casualty, the damage shall be promptly
repaired by Landlord to the extent of the insurance proceeds available therefor,
plus any deductible maintained with respect to Landlord's property insurance.
Until repairs to the Premises are completed by Landlord, rent and all other
amounts payable by Tenant hereunder shall be abated in proportion to the part of
the Premises, if any, which is unusable by Tenant in the conduct of its
business. If: (a) the Premises is damaged to the extent of more than fifty
percent (50%) of the replacement cost thereof; or (b) the Park or the Building
is damaged by fire or other insured casualty to the extent of thirty-five
percent (35%) or more of the replacement cost thereof; or (c) any damage to the
Premises cannot be repaired within one hundred twenty (120) days of the date of
such damage; or (d) the Premises is materially damaged or destroyed during the
last eighteen (18) months of the term hereof; then Landlord may terminate this
Lease by written notice to Tenant given within thirty (30) days after the
occurrence of the casualty, time being of the essence, subject to Tenant's right
to exercise an Extension Option as to item (d). Landlord's repair of the
Premises shall not include any of Tenant's trade fixtures or other personal
property or any of Tenant's betterments or improvements to the Premises.
If (a) the Premises is materially damaged or destroyed during the last
eighteen (18) months of the term hereof or (b) any damage to the Premises cannot
be repaired within one hundred twenty (120) days of the date of such damage;
then Landlord may terminate this Lease by written notice to Tenant, given within
thirty (30) days after the occurrence of the casualty, unless Tenant exercises
an Extension Option(s) the term of which is no less than 80% of the economic
life of the tenant improvements to be constructed. In addition, in the event
that the Premises is
19
materially damaged or destroyed during the last eighteen (18) months of the term
hereof and such damage cannot be repaired within one hundred twenty (120) days
of the date of such damage; then Tenant may terminate this Lease by written
notice to Landlord, given within thirty (30) days after the occurrence of the
casualty, provided, that (i) upon expiration of said one hundred twenty day
period and during the delay period, Landlord is unable to provide Tenant with
additional temporary space in the Park of approximately the same size as the
portion of the Premises that are being restored and (ii) Landlord is unable to
complete the restoration within a reasonable period of time following said one
hundred twenty day period.
11.3 Termination. In the event of any termination of this Lease as the
-----------
result of the provisions of this ARTICLE XI, the parties, effective as of such
termination, shall be released, each to the other, from all liability and
obligations thereafter arising under this Lease.
ARTICLE XII
-----------
EMINENT DOMAIN
12.1 Condemnation. If after the execution of this Lease and prior to the
------------
expiration of the term hereof, the whole (or substantially the whole) of the
Premises shall be taken under power of eminent domain by any public or private
authority, or conveyed by Landlord to said authority in lieu of such taking,
then this Lease and the term hereof shall cease and terminate as of the date of
such taking, subject, however, to the right of Tenant, at its election, to
continue to occupy the Premises, subject to the terms and provisions of this
Lease, for all or such part, as Tenant may determine, of the period between the
date of such taking and the date when possession of the Premises shall be taken
by the taking authority and any unearned rent or other charges, if any, paid in
advance, shall be refunded to Tenant.
12.2 Termination Right. If, after the execution of this Lease and prior to
-----------------
the expiration of the term hereof, any taking under the power of eminent domain
by a public or private authority or any conveyance by Landlord in lieu thereof,
shall result in a taking of more than 20% of the total square footage of the
Premises and Landlord is unable to deliver alternate space within the Park
similar in size to the portion of the Premises taken, then Tenant may, at its
election, terminate this
20
Lease by giving Landlord notice of the exercise of Tenant's election within
ninety (90) days after the date when possession of the Premises shall be taken
by the appropriating authority, time being of the essence
12.3 Rent Abatement. In the event of a taking in respect of which Tenant
--------------
shall not have the right to elect to terminate this Lease or, having such right,
shall not elect to terminate this Lease, this Lease and the term thereof shall
continue in full force and effect and Tenant shall be entitled to a
proportionate reduction of the rent and any other charges payable by Tenant
hereunder, based on the square footage of the Premises taken under the power of
eminent and the total square footage of the Premises prior to such taking.
12.4 Award. All compensation awarded for any taking, whether for the whole
-----
or a portion of the Premises, shall belong to Landlord; provided that Tenant
shall be entitled to any award made, whether to Landlord or to Tenant, for the
unamortized cost of Tenant's betterments and improvements installed at Tenant's
Cost, moving expenses and the value of Tenant's trade fixtures and further
provided that Tenant may apply for and receive an award for the loss of Tenant's
leasehold estate so long as such award in no way diminishes any award to
Landlord or to any mortgagee of Landlord with respect to Landlord's remainder.
12.5 Termination. In the event of any termination of this Lease as the
-----------
result of the provisions of this ARTICLE XII, the parties, effective as of such
termination, shall be released, each to the other, from all liability and
obligations thereafter arising under this Lease.
ARTICLE XIII
------------
ENVIRONMENTAL MATTERS
13.1 Environmental Remediation. To the best of Landlord's knowledge,
-------------------------
Landlord shall deliver the Premises to Tenant on the Commencement Date free of
all Hazardous Substances (hereinafter defined) to the extent necessary to be in
compliance with all environmental and other laws related to health and safety
and so as to allow Tenant to operate in the Premises for its intended use
hereunder without impairment, interruption, interference, liability or
additional cost or expense with respect to any Hazardous Substance.
21
"Hazardous Substances" for purposes of this Lease shall be interpreted
broadly to include, but not be limited to, any material or substance that is
defined or classified under federal, state, or local laws as: (a) a "hazardous
substance" pursuant to section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S)1321(14), section 311 of the
Federal Water Pollution Control Act, 33 U.S.C. (S)1321, as now or hereafter
amended; (b) a "hazardous waste" pursuant to section 1004 or section 3001 of the
Resource Conservation and Recovery Act, 42 U.S.C. (S)6903, 6921, as now or
hereafter amended; (c) a toxic pollutant under section 307(a)(1) of the Federal
Water Pollution Control Act, 33 U.S.C. (S)1317(a)(1); (d) a "hazardous air
pollutant" under section 112 of the Clean Air Act, 42 U.S.C. (S)7412, as now or
hereafter amended; (e) a "hazardous material" under the Hazardous Materials
Transportation Uniform Safety Act of 1990, 49 U.S.C. App. (S)1802(4), as now or
hereafter amended; (f) toxic or hazardous pursuant to regulations promulgated
now or hereafter under the aforementioned laws; or (g) presenting a risk to
human health or the environment under other applicable federal, state or local
laws, ordinances, or regulations, as now or as may be passed or promulgated in
the future (all of the foregoing laws, ordinances, regulations and other
governmental strictures and guidelines pertaining to the environment, health and
safety being herein sometimes referred to as the "Environmental Requirements").
"Hazardous Substances" specifically include, but are not limited to, asbestos,
polychlorinated biphenyls ("PCBs"), radioactive substances, petroleum and
petroleum-based derivatives, hydrocarbons and urea formaldehyde.
13.2 Tenant Covenant and Indemnity. Tenant shall not cause or permit the
-----------------------------
storage, use, escape, disposal or release of Hazardous Substances in any manner
not in compliance with the Environmental Requirements; provided, however, that
nothing herein shall prevent Hazardous Substances to be brought onto the
Premises in the ordinary course of Tenant's business, as long as such presence
is in compliance with the Environmental Requirements. Tenant shall indemnify and
hold harmless Landlord against and from any liability, claim of liability,
claims, suits, costs, expenses, causes of action, personal liability and
property damage (including without limitation Landlord's attorney's fees)
arising out of a breach by Tenant of its covenant in the preceding sentence. The
foregoing covenants and indemnities shall survive the expiration or earlier
termination of this Lease; provided, however, that Tenant shall not be
22
required to indemnify Landlord from any matter arising from Landlord's gross
negligence or willful misconduct.
13.3 Landlord Covenant and Indemnity. Landlord shall not cause or permit
-------------------------------
the storage, use, escape, disposal or release of Hazardous Substances in, on or
with respect to the Land in any manner not in compliance with the Environmental
Requirements provided, however, that nothing herein shall prevent Hazardous
Substances to be brought onto the Land in the ordinary course of Landlord's
business or the businesses of Landlord's other Tenants, as long as such presence
is in compliance with the Environmental Requirements. Landlord shall indemnify
and hold Tenant harmless against and from any liability, claim of liability,
claims, suits, costs, expenses, causes of action, personal liability and
property damage (including without limitation reasonable attorney's fees)
arising out of a breach by Landlord of its covenant in the preceding sentence.
Further, Landlord shall indemnify and hold Tenant harmless against and from any
liability, claim of liability, claims, suits, costs, expenses, causes of action,
personal liability and property damage (including without limitation reasonable
attorney's fees) arising out of a breach by Landlord of its representations,
warranties and covenants in Section 13.1 above. The foregoing covenants and
indemnities in this Section 13.3 shall survive the expiration or earlier
termination of this Lease; provided, however, that Landlord shall not be
required to indemnify Tenant from any matter arising from Tenant's gross
negligence or willful misconduct. Landlord shall not be liable to Tenant under
this Section 13.3 with respect to the acts of other tenants of Landlord, unless
same results from Landlord's gross negligence or willful misconduct; provided,
however, that if any Hazardous Substances brought onto the Land by such other
tenants materially adversely affects the ability to use the Premises for the use
contemplated hereunder, then Tenant may terminate this Lease by written notice
to Landlord, unless Landlord agrees to promptly ▇▇▇▇▇ such interference.
ARTICLE XIV
-----------
DEFAULT
14.1 Remedies Upon Tenant's Default. In the event Tenant shall at any time
------------------------------
be in default in the payment of rent or other charges herein required to be paid
by Tenant or in the observance or performance of any of the other covenants and
23
agreements required to be performed and observed by Tenant hereunder and any
such default shall continue for a period of ten (10) days following the date
such payment was due for monetary obligations and thirty (30) days after written
notice to Tenant for all other obligations (or if such default is incapable of
being cured in a reasonable manner within thirty (30) days then if Tenant has
not commenced to cure the same within said thirty (30) day period and thereafter
diligently prosecutes the same to completion), then Landlord shall be entitled
at its election, to exercise concurrently or successively, any one or more of
the following rights:
(a) to bring suit for the collection of the rent or other amounts for which
Tenant may be in default, or for the performance of any other covenant or
agreement devolving upon Tenant, all without entering into possession or
terminating this Lease;
(b) to re-enter the Premises with process of law and take possession
thereof, without thereby terminating this Lease, and thereupon Landlord may
expel all persons and remove all property therefrom, without becoming liable
to prosecution therefor, and relet the Premises and receive the rent
therefrom, applying the same first to the payment of the reasonable expenses
of such re-entry and the reasonable cost of such reletting, and then to the
payment of the monthly rental accruing hereunder, the balance, if any, to be
paid to Tenant. Tenant shall remain liable for any deficiency after such
application.
(c) to terminate this Lease, re-enter the Premises and take possession
thereof. In the event Landlord shall elect to terminate this Lease, as
aforesaid, all rights and obligations of Landlord, and of any permitted
successors or assigns, shall cease and terminate, except that Landlord shall
have and retain full right to ▇▇▇ for and collect all rents and other amounts
for the payment of which Tenant shall then be in default, and all damages to
Landlord by reason of any such breach, and Tenant shall surrender and deliver
up the Premises to Landlord and upon any default by Tenant in so doing,
Landlord shall have the right to recover possession by summary proceedings or
otherwise and to apply for the appointment of a receiver and for other
ancillary relief in such action, and Landlord shall again
24
have and enjoy the Premises, fully and completely, as if this Lease had never
been made.
In addition to Landlord's other remedies hereunder, if Tenant defaults in
the performance of any obligation imposed on it by this Lease and does not cure
such default within twenty (20) days after written notice from Landlord
specifying the default (or does not within said period commence and diligently
proceed to cure such default), Landlord, without waiver of or prejudice to any
other right or remedy it may have, shall have the right, at any time thereafter,
to cure such default for the account of the Tenant, and Tenant shall reimburse
Landlord upon invoice for any amount paid and any expense or contractual
liability so incurred. In the event of emergencies, or where necessary to
prevent injury to persons or damage to property or to mitigate damages, Landlord
may cure a default by Tenant before the expiration of the waiting period, but
after giving such written or oral notice to Tenant as is practical under all of
the circumstances. If Tenant fails to reimburse Landlord within ten (10) days
after receipt of invoice, then Tenant shall also pay to Landlord interest
thereon at the hereinafter defined Default Rate from date of disbursement.
14.2 Remedies Upon Landlord's Default. In the event that Landlord shall at
--------------------------------
any time be in default in the observance or performance of any of the covenants
and agreements required to be performed and observed by Landlord hereunder and
any such default shall continue for a period of thirty (30) calendar days after
written notice to Landlord (or if such default is incapable of being cured in a
reasonable manner within thirty (30) calendar days then if Landlord has not
commenced to cure the same within said thirty (30) calendar day period and
thereafter diligently prosecutes the same to completion) and Landlord shall not
thereafter cure such default, Tenant shall be entitled at its election, to bring
suit for the collection of any amounts for which Landlord may be in default, or
for the performance of any other covenant or agreement devolving upon Landlord,
in addition to all remedies otherwise provided in this Lease and otherwise
available in law or equity under the laws of the United States or the State or
Commonwealth in which the Premises are located.
In addition to all of Tenant's other remedies hereunder, if Landlord
defaults in the performance of any obligation imposed on it by this Lease
pertaining exclusively to the Premises and
25
not to any other part of the Park, and does not cure such default within twenty
(20) days after written notice from Tenant specifying the default (or does not
within said period commence and diligently proceed to cure such default),
Tenant, without waiver of or prejudice to any other right or remedy it may have,
shall have the right, at any time thereafter, to cure such default for the
account of the Landlord, and Landlord shall reimburse Tenant upon invoice for
any amount paid and any expense or contractual liability so incurred. If
Landlord fails to reimburse Tenant within ten (10) days after invoice, then
Tenant shall have the right to offset the amount due thereunder, together with
interest at the Default Rate (as defined in Section 14.3 hereinbelow) from the
date of disbursement against all rent and other charges due from Tenant to
Landlord under this Lease until Tenant has been completely reimbursed for its
expenses. In the event of emergencies, or where necessary to prevent injury to
persons or damage to property or to mitigate damages, Tenant may cure a default
by Landlord before the expiration of the waiting period, but after giving such
written or oral notice to Landlord as is practical under all of the
circumstances.
14.3 Attorneys' Fees; Remedies. In the event that either Landlord or
-------------------------
Tenant commences any suit for the collection of any amounts for which the other
may be in default or for the performance of any other covenant or agreement
hereunder, the other party shall pay all reasonable attorneys' fees and other
expenses incurred by the prevailing party enforcing such obligations and/or
collecting such amounts, plus interest thereon at the highest legal rate not to
exceed eighteen (18%) percent per annum (the "Default Rate"). All remedies of
Landlord and/or Tenant herein created or remedies otherwise existing at law or
equity are cumulative and the exercise of one or more rights or remedies shall
not be taken to exclude or waive the right to the exercise of any other. All
such rights and remedies may be exercised and enforced concurrently and whenever
and as often as Landlord and/or Tenant shall, as applicable, deem necessary. In
addition, Tenant shall be responsible for all reasonable attorneys' fees and
other expenses incurred by Landlord in enforcing or seeking to enforce this
Lease as a result of a default hereunder by Tenant.
26
ARTICLE XV
----------
QUIET ENJOYMENT; LANDLORD'S AND TENANT'S REPRESENTATIONS AND WARRANTIES
15.1 Covenants and Warranties. Landlord covenants and warrants that
------------------------
Landlord has good right and full power to let and lease the Premises and to
enter into the agreements contained herein. Landlord agrees that, if and as long
as Tenant is not in default after the applicable grace periods and any notice
required under the terms hereof, Tenant shall quietly and peaceably hold,
possess and enjoy the Premises for the full term of this Lease without any
hindrance or molestation by Landlord or its agents or employees, and Landlord
shall defend the use and occupancy of the same by Tenant against the lawful
claims of all persons whomsoever, except with respect to such matters of title
as affect the Premises as of the date hereof, pursuant to the title search
attached hereto as Exhibit "D" (the "Permitted Exceptions"). Landlord shall
-----------
execute and deliver such affidavits, certificates and other documents as may be
reasonably requested by Tenant or Tenant's title insurance company to permit
Tenant to obtain a title policy issued by the Title Company insuring Tenant's
leasehold interest on the Premises in an amount reasonably satisfactory to
Tenant, subject only to the Permitted Exceptions. Landlord covenants, warrants
and represents that such matters of title, either individually or in the
aggregate, do not and shall not materially interfere with Tenant's use of the
Premises contemplated hereunder.
15.2 Landlord's Representations and Warranties. Landlord makes the
-----------------------------------------
following representations, warranties and covenants to Tenant:
(a) Landlord has complete and full authority to execute this Lease subject
to the provisions hereof.
(b) To Landlord's knowledge and belief, neither the entering into of this
Lease nor the consummation of the transaction contemplated hereby will
constitute or result in a violation or breach by Landlord of any judgment,
order, writ, injunction or decree issued against or imposed upon it, or will
result in a violation of any applicable law, order, rule or regulation of any
governmental authority.
27
(c) Landlord has no knowledge of, nor has Landlord received any notice of,
any actual or threatened action, litigation, or proceeding by any
organization, person, individual or governmental agency (including
governmental actions under condemnation authority or proceedings similar
thereto) against the Land, the Building or Landlord, nor has any such
organization, person, individual or governmental agency communicated to
Landlord anything which Landlord believes to be a threat of any such action,
litigation or proceeding.
(d) The parties executing this Lease on behalf of Landlord have the power
and authority to make the provisions hereof the legal, valid and binding
obligations of Landlord.
15.3 Tenant's Representations and Warranties. Tenant makes the following
---------------------------------------
representations, warranties and covenants to Landlord:
(a) Tenant has complete and full authority to execute this Lease subject to
the provisions hereof.
(b) To Tenant's knowledge and belief, neither the entering into of this
Lease nor the consummation of the transaction contemplated hereby will
constitute or result in a violation or breach by Tenant of any judgment,
order, writ, injunction or decree issued against or imposed upon it, or will
result in a violation of any applicable law, order, rule or regulation of any
governmental authority.
(c) The parties executing this Lease on behalf of Tenant have the power and
authority to make the provisions hereof the legal, valid and binding
obligations of Tenant.
28
ARTICLE XVI
-----------
SUBORDINATION
16.1 Subordination and Attornment. This Lease shall be subordinate to the
----------------------------
lien of any present or future mortgage upon the Premises; on the condition,
however, that the holder of any present or future mortgage upon the Premises
(the "Mortgagee") shall enter into a subordination, non-disturbance and
attornment agreement ("SNDA") with Tenant, on Mortgagee's form of SNDA
agreement, providing that in the event of foreclosure or other action or
exercise of rights taken under the mortgage by Mortgagee, this Lease and all of
the rights of Tenant hereunder shall not be disturbed, but shall continue in
full force and effect. As used herein, "mortgage" shall include mortgages, deeds
of trust, deeds to secure debt or other similar financing instruments. Landlord
shall provide Tenant with the SNDA for any mortgage now affecting the Premises
prior to the Commencement Date.
ARTICLE XVII
------------
TRANSFERS BY AND LIABILITY OF LANDLORD
17.1 Transfers of Landlord's Interest. No transfer or sale of Landlord's
--------------------------------
interest in the Premises or hereunder shall release Landlord from any of its
obligations or duties hereunder prior thereto. Notwithstanding the foregoing,
Landlord shall be released of any ongoing obligations hereunder from and after
the date of such transfer upon the assumption of all such obligations and duties
by the transferee of Landlord.
17.2 Landlord's Liability. Landlord's liability for its obligations
--------------------
hereunder with respect to any monetary payment shall be limited to Landlord's
interest in the Park and the Building and other buildings and improvements
thereon, including without limitation the rents, insurance proceeds, sales
proceeds and condemnation awards therefrom.
ARTICLE XVIII
-------------
MISCELLANEOUS
18.1 Holding Over. In the event of Tenant's continued occupancy of the
------------
Premises after the expiration of the term of this Lease or any renewal or
extension thereof, or any earlier termination provided or permitted by this
Lease, with the
29
consent of Landlord such tenancy shall be from month-to-month at double the Base
Rent in effect on the termination date, computed on a monthly basis for each
month or part thereof during such holding over, and such continued occupancy
shall not defeat Landlord's right to possession of the Premises. All other
covenants, provisions, obligations and conditions of this Lease shall remain in
full force and effect during such month-to-month tenancy, except that the legal
rights of the parties shall be governed by the principles of a month-to-month
tenancy, including without limitation termination or change in rent upon thirty
(30) days notice.
18.2 Non-Waiver of Default. No acquiescence by either party to any default
---------------------
by the other party hereunder shall operate as a waiver of its rights with
respect to any other breach or default, whether of the same or any other
covenant or condition.
18.3 Recording. Neither this Lease nor any memorandum thereof may be
---------
recorded in the public records of Broward County, Florida.
18.4 Notice. Any notice or consent required to be given by or on behalf of
------
any party hereto to any other party shall be in writing and sent by facsimile
with written confirmation of transmittal, mailed by registered or certified
mail/return receipt requested, or sent by air courier or expedited mail service
or personal delivery, addressed as follows:
If to Tenant: Aladdin Manufacturing Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇-▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Regional Manager
Aladdin Manufacturing Corporation
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Landlord: Seneca G&H, L.L.C.
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ Traurig, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be specified from time to time in writing. All
such notices hereunder shall be deemed to have been given on the date of
delivery or the date marked on the return receipt unless delivery is refused or
cannot be made, in which case the date of postmark shall be deemed the date
notice has been given.
18.5 Successors and Assigns. All covenants, promises, conditions,
----------------------
representations, and agreements herein contained shall be binding upon, apply,
and inure to the parties hereto and their respective heirs, executors,
administrators, successors, and permitted assigns.
18.6 Time is of the Essence. Time is of the essence hereof.
----------------------
18.7 Partial Invalidity. If any provision of this Lease or the application
------------------
thereof to any person or circumstance shall to any extent be held invalid, then
the remainder of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held invalid shall not be
affected thereby, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
18.8 Interpretation. In interpreting this Lease in its entirety, the
--------------
printed provisions of this Lease and any additions written or typed thereon
shall be given equal weight, and there shall be no inference, by operation of
law or otherwise, that any provision of this Lease shall be construed against
either party hereto. This Lease constitutes the complete agreement of Landlord
and Tenant with respect to the subject matter hereof. No representations,
inducements, promises or agreements, oral or
31
written, have been made by Landlord or Tenant, or anyone acting on behalf of
Landlord or Tenant, which are not contained herein, and any prior agreements,
promises, negotiations, or representations are superseded by this Lease. This
Lease may not be amended except by an instrument in writing signed by both
parties hereto.
18.9 Headings, Captions and References. The section captions contained in
---------------------------------
this Lease are for convenience only and do not in any way limit or amplify any
term or provision hereof. The use of the terms "hereof," "hereunder" and
"herein" shall refer to this Lease as a whole, inclusive of the Exhibits
(including the Agreement), except when noted otherwise. The use of the masculine
or neuter genders herein shall include the masculine, feminine and neuter
genders and the singular form shall include the plural when the context so
requires.
18.10 Brokerage Commissions. Landlord and Tenant each warrants and
---------------------
represents to the other that there are no brokers, finders fees or any real
estate commissions due to any broker, agent or other party in connection with
the negotiation or execution of this Lease or on behalf of either of them except
for ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, Inc. and ▇▇▇▇▇▇▇ & Wakefield of Florida, Inc.
(collectively "Broker"), which shall be paid a commission by Landlord pursuant
to a separate agreement. Under no circumstances shall Tenant be obliged to make
any payment to Broker. Landlord and Tenant hereby agree to indemnify and hold
the other harmless from and against any and all costs, expenses, liabilities,
causes of action, claims or suits by any party for compensation, commissions,
fees or other sums (including without limitation reasonable attorney's fees)
claimed to be due or owing with respect to the representation of Landlord or
Tenant as applicable, in effecting this Lease. ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates
represented Tenant. ▇▇▇▇▇▇▇ & Wakefield represented Landlord.
18.11 Time. Whenever the last day for the exercise of any privilege or the
----
discharge of any duty hereunder shall fall upon a Saturday, Sunday or any public
or legal holiday, the party having such privilege or duty shall have until 5:00
p.m. on the next succeeding business day to exercise such privilege or to
discharge such duty.
18.12 Estoppel Certificate. Either party agrees that within fifteen (15)
--------------------
days following request therefor by the other
32
party to execute and deliver to the requesting party a statement, certifying to
its actual knowledge (a) whether or not this Lease is in full force and effect,
(b) the date of commencement and termination of the term of this Lease, (c) the
date to which rental and all other charges hereunder are paid currently without
any offset or defense thereto (or stating any such offset or defense), (d) the
amount of rental and all other charges hereunder, if any, paid in advance, (e)
whether or not this Lease has been modified and, if so, identifying the
modifications, (f) that there are no uncured defaults by the other party or
describing the claimed defaults and (g) such other matters as the requesting
party shall reasonably request. Nothing in any such estoppel statement shall be
deemed to modify or amend this Lease.
18.13 Governing Law. This Lease shall be construed under the laws of the
-------------
State of Florida.
18.14 Force Majeure. In the event that either party shall be delayed or
-------------
hindered in, or prevented from, the performance of any work, service, or other
act required under this Lease to be performed by the party (other than monetary
obligations) and such delay or hindrance is due to strikes, lockouts, acts of
God, governmental restrictions, enemy act, civil commotion, unavoidable fire or
other casualty, or other causes of a like nature beyond the reasonable control
of the party so delayed or hindered (a "Force Majeure Event"), then performance
of such work, service, or other act shall be excused for the period of such
delay and the period for the performance of such work, service, or other act
shall be extended for a period equivalent to the period of such delay. Lack of
financial resources on the part of either party shall not be a Force Majeure
Event.
18.15 Radon Gas. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN
----------
IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH
RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED
FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL
INFORMATION REGARDING RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC
HEALTH UNIT. [NOTE: THIS PARAGRAPH IS PROVIDED FOR INFORMATIONAL PURPOSES
PURSUANT TO FLORIDA STATUTES.]
18.16 Special Stipulations. If any Schedule of Special Stipulations is
--------------------
attached hereto and if there is any conflict
33
with the provisions hereof, then the Special Stipulations shall govern and
control.
18.17 Guaranty. At the time that this Lease is executed by Tenant, Tenant
--------
shall procure that Tenant's parent company (Mohawk Industries, Inc.) executes
and delivers Landlord's form of unconditional guaranty in favor of Landlord,
unconditionally guarantying the payment and performance of all of Tenant's
obligations under this Lease, as same may be amended by mutual written agreement
executed by Landlord and Tenant.
18.18 Signs. Tenant shall not make any changes to the exterior of the
-----
Premises, install any exterior lights, decorations, balloons, flags, pennants,
banners, or painting, or erect or install any signs, windows or door lettering,
placards, decorations, or advertising media of any type which can be viewed from
the exterior of the Premises, without Landlord's prior written consent.
18.19 Access. Landlord and its agents, representatives, and contractors may
------
enter the Premises at any reasonable time to inspect the Premises and to make
such repairs as may be required or permitted pursuant to this Lease and for any
other business purpose. Landlord and Landlord's representatives may enter the
Premises during business hours for the purpose of showing the Premises to
prospective purchasers and, during the last year of the Initial Term or any
Extension Term, to prospective tenants, provided, that such showings do not
materially interfere with Tenant's business and further provided, that Landlord
gives Tenant at least 24 hours prior notice of such showings. Landlord may erect
a suitable sign on the Premises stating the Premises are available to let or
that the Project is available for sale. Landlord may grant easements, make
public dedications, designate common areas and create restrictions on or about
the Premises, provided that no such easement, dedication, designation or
restriction materially interferes with Tenant's use or occupancy of the
Premises. At Landlord's request, Tenant shall execute such instruments as may be
necessary for such easements, dedications or restrictions.
18.20 Waiver of Jury Trial. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY
--------------------
JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
34
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
18.21 Net Lease. Landlord and Tenant acknowledge and agree that this Lease
---------
is a net lease. In this regard, except as specifically provided herein, Tenant
shall be responsible and shall pay Base Rent, Florida Sales Taxes pertaining to
the Premises, and any and all costs, expenses and charges of any nature or kind
whatsoever relating to the operation, maintenance, repair, associated
administration of the Premises, or Tenant's use and occupation of the Premises.
In addition, Tenant shall be responsible for its proportionate share of said
charges with respect to the Common Areas.
18.22 Rules and Regulations. Tenant shall, at all times during the Initial
---------------------
Terms and any extensions thereof, comply with all reasonable rules and
regulations at any time or from time to time established by Landlord covering
use of the Premises, the Building, and the Park. The current rules and
regulations are attached hereto. In the event of any conflict between said
rules and regulations and other provisions of this Lease, the other terms and
provisions of this Lease shall control. Landlord shall not have any liability or
obligation for the breach of any rules or regulations by other tenants in the
Park. Landlord agrees not to establish and enforce any changes in the Rules and
Regulations of the Park that would have a materially adverse effect on Tenant's
operation of the Premises as anticipated under this Lease.
18.23 Constituent Documents. Within five (5) days following Tenant's
---------------------
execution of this Lease, Tenant shall provide Landlord with an original
certificate of good standing for Tenant and Guarantor from their State of
formation; said certificate to be dated within thirty days of the date on which
same is delivered to Landlord. In addition, within said five (5) days, Tenant
shall also provide Landlord with a copy of its corporate resolutions and that of
Guarantor authorizing Tenant to enter into the Lease and Guarantor to guarantee
Tenant's obligations hereunder respectively and authorizing the individual
signing the Lease and Guarantee on behalf of Tenant and Guarantor respectively
to do so.
18.24 First Offer of Adjacent Space. During the term of this Lease,
-----------------------------
provided that Tenant is not, and has not been, in default under the Lease,
Landlord shall provide Tenant with
35
written notice of any available space adjacent to the Premises in the Building.
Tenant shall have a right of first offer to lease such available adjacent
space on substantially the same terms and conditions provided in this Lease. The
terms and conditions of the new lease for such adjacent space shall be the same
as those of this Lease except that (i) base rent under such lease during the
first year thereof shall be equal to the rent then in effect under this Lease,
subject to annual adjustments pursuant to this Lease, (ii) the term of such
lease shall be for at least five years, (iii) Tenant shall accept delivery of
such space in its then AS IS condition, and (iv) such lease shall not provide
for a tenant improvement allowance. In the event that Tenant does not elect to
exercise said right of first offer, in writing, within fifteen (15) days
following Landlord's notice of such available adjacent space, Tenant shall be
deemed to have waived such right with regard to such available adjacent space at
that time, however, such waiver shall not affect Tenant's right of first offer
with regard to such adjacent space in the event that it subsequently becomes
available again during the term of this Lease. In addition, during the term of
this Lease, in the event that Tenant desires to lease all of the Building space
adjacent to the Premises (which adjacent space consists of an aggregate of
approximately 70,055 square feet), and such space is occupied by other
tenant(s), Landlord shall exercise diligent efforts to negotiate with such
tenant(s) to have same relocated to other available space in the Park, provided,
that same is at no cost to Landlord. Tenant shall bear all costs associated with
such relocation and shall accept such space in its then AS IS condition.
18.25 Rules and Regulations. With respect to this Lease, the following
---------------------
provision of paragraph 15 of the Rules and Regulations, shall be deemed to be
deleted:
"The Tenant shall furnish the Landlord, upon request, with the current license
numbers of all vehicles owned or used by the Tenant or its employees or agents
and the Tenant thereafter shall notify the Landlord of any changes in such
numbers within five (5) days after the occurrence thereof."
18.26 Credit for Unused Tenant Improvement Allowance: In the event that
----------------------------------------------
the TI Cost is less than the Tenant Improvement Allowance ($786,132.99),
Landlord agrees to reduce the Base Rent by 1 cent per square foot for each whole
increment of $11,000.00 in cost savings, however, in no event shall the
36
Base Rent ever be less than $5.00 per square foot. In the event that Tenant
elects to utilize all or part of the above credit, a new rent schedule which is
now exhibit "C" in the lease Agreement will be created and executed by the
parties at the time of the rent commencement.
IN WITNESS WHEREOF this Lease has been executed as a sealed instrument as
of the day and year first above written.
LANDLORD:
Witnesses: SENECA G&H, L.L.C.,
a Florida limited liability company
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ Roabele, Jr.
----------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ Roabele, Jr.
----------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III Title: Member
----------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III (SEAL)
TENANT:
Witnesses: ALADDIN MANUFACTURING CORPORATION,
a Delaware corporation
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇ Title: Senior Counsel
----------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ (CORPORATE SEAL)
37
LIST OF EXHIBITS
Exhibit "A-1" Legal Description of Land
-------------
Exhibit "A-2" Site Plan
-------------
Exhibit "A-3" Parking Area
-------------
Exhibit "B" Landlord's Improvements
-----------
Exhibit "C" Rent Schedule
-----------
Exhibit "D" Permitted Exceptions
-----------
38
EXHIBIT "A-l"
LEGAL DESCRIPTION OF LAND
[To be provided by Landlord]
EXHIBIT "A-1"
"SKETCH OF LAND"
[ARTWORK]
EXHIBIT "A-2"
"SITE PLAN"
[ARTWORK]
EXHIBIT "A-3"
"PARKING AREA AND PREMISES"
[ARTWORK]
EXHIBIT "B"
-----------
LANDLORD'S IMPROVEMENTS
(WORK LETTER)
Section B.1 Force and Effect. The provisions of this Exhibit: "B" shall
----------------
have the same force and effect as if this Exhibit "B" were within the body of
the Lease. However, in the event that there are any contradiction(s) between the
other terms or conditions of this Lease and this Exhibit "B", the terms of this
Exhibit "B" shall prevail.
Section B.2 Plans and Specifications. Landlord agrees, at Landlord's sole
------------------------
cost and expense (subject to reimbursement from Tenant as set forth below if
costs exceed the Tenant Allowance), to perform the work ("Landlord's Work")
required to complete the Tenant improvements described on Schedule B-1 hereto
-------------
(the "Tenant Improvements"). If the Tenant Improvements have not yet been agreed
to, then the plans and specifications (the "Plans and Specifications") therefor
shall be agreed upon as described on Schedule B-1. Landlord's Work shall be
------------
completed and the Tenant Improvements installed and constructed in a good and
workmanlike manner, with new materials, according to sound engineering practice
and in compliance with law.
Section B.3 Tenant Allowance and Tenant Contribution. The Tenant
----------------------------------------
Improvement Allowance shall be $786,132.99. In addition, for the purposes of
this Work Letter, Landlord's costs shall only include costs of the Tenant
Improvements and shall not include any costs for the base Building, the Common
Areas or other aspects of the Park, all of which shall be constructed by
Landlord at Landlord's sole cost and expense.
In the event that the cost for the Tenant Improvements (the "TI Cost") will
result in a cost in excess of the Tenant Improvement Allowance (such excess is
hereinafter defined as the "Tenant Costs"), then Tenant may elect to revise the
Plans and Specifications to reduce or eliminate such increase in costs;
nevertheless, Tenant shall be solely responsible for the Tenant Costs.
Notwithstanding anything herein to the contrary, to the extent Landlord incurs
costs and expenses for matters attributable to Landlord's negligence or
misconduct, Landlord shall pay all such costs, expenses and fees and all such
costs, expenses and fees shall be excluded from the cost of Landlord's Work for
the purposes of this Lease. Landlord shall also pay all of the following costs,
fees and expenses, which costs, fees
1
and expenses shall also be excluded from the cost of Landlord's Work for the
purposes of this Lease: (i) finance charges, (ii) architectural and engineering
fees (excluding revision fees) (iii) the costs of any studies and reports,
(including, but not limited to, soils and geology reports), (iv) the costs of
any work with respect to the Premises, Building or the Park, other than for the
Tenant Improvements, (v) any internal or direct administrative or supervisory
costs incurred by Landlord for Landlord's staff, (vi) the cost of any building
or other permit required for the base building, and (vii) costs and expenses of
any plan check or similar fee and standard building permits and fees attributed
to the base building, all of which Landlord shall pay at Landlord's cost and
expense (and not as part of the Tenant Allowance).
Section B.4 Commencement and Completion of Construction. Landlord shall
-------------------------------------------
commence and substantially complete construction of the Landlord's Work in
accordance with the Plans and Specifications with due diligence no later than
the date provided for in the construction schedule subject only to force
majeure.
"Substantial Completion" shall mean that a certificate of occupancy or a
temporary certificate of occupancy has been obtained for the Premises and that
Landlord's Work is sufficiently complete so as to allow Tenant to occupy the
Premises for the use and purposes intended without unreasonable disturbance or
interruption; provided that Landlord, its employees, agents, and contractors,
shall be allowed to enter upon the Premises at any reasonable time(s) following
substantial completion as necessary to complete any unfinished details pursuant
to a punchlist to be prepared by Tenant and delivered to Landlord within thirty
(30) days following the date of substantial completion.
Section B.5 Bid List. Prior to commencement of Landlord's construction of
--------
the Tenant Improvements, Landlord and Tenant shall have agreed in writing to a
list of up to three general contractors who shall be designated as the parties
from whom bids will be sought to construct the Premises ("Bid List"), which list
shall be incorporated herein and attached hereto as Schedule "B-3" (the "Bid
--------------
List"). Each of such contractors shall be reasonably acceptable to both Landlord
and Tenant and shall have substantial experience in the general construction
industry in the area where the Park is located in connection with similar such
projects and shall base their bids on the form of
2
construction contract provided to such contractors. Upon agreement as to the
Plans and Specifications, Landlord shall submit same to the parties on the Bid
List for their respective bids, and upon receipt of such bids, Landlord shall
deliver to Tenant copies thereof. Unless Tenant shall otherwise designate, the
lowest bidder shall be awarded the construction contract for Landlord's Work.
Tenant shall have the right to designate the contractor to which the general
construction contract is to be awarded, however, in such event, Tenant shall
guaranty such contractor's timely completion and delivery of the work contracted
for. Tenant shall have access to all of the information available in connection
with the bids submitted in accordance with this Section B.5. Landlord shall
notify Tenant prior to opening sealed bids and Tenant shall have the right to be
present when such bids are opened. Notwithstanding anything herein to the
contrary, Landlord may provide the bid that Landlord and Tenant have otherwise
agreed to accept (the "Pending Approved Bid") to the base Building contractor
and, in the event that the Base building contractor bids or revises its prior
bid to match, or be less than the Pending Approved Bid, Landlord shall be
entitled to select the base Building contractor's bid, in lieu of the Pending
Approved Bid.
Section B.6 Delivery of Possession of the Premises. Landlord shall deliver
--------------------------------------
possession of the Premises to Tenant with the Tenant Improvements substantially
completed and a permanent or temporary Certificate of Occupancy for the
Premises no later than the Commencement Date. As of the Commencement Date,
Landlord shall have completed the Common Areas necessary for the operation of
the Premises for the use contemplated hereunder (i.e. roads providing access to
and from the Premises, parking for the Premises, and utilities to the Premises).
Section B.7 Delays. Notwithstanding anything herein to the contrary, the
------
Base Rent under the Lease shall be abated one day for each day the Commencement
Date is delayed (excluding force majeure delays) by Landlord's failure to
complete the Tenant Improvements (but not to the extent the delay is caused by
Tenant and not in the event that Tenant designates the contractor to which the
contract was awarded). This provision is not intended to limit Tenant's rights
and remedies specified in the Lease, including, without limitation, those rights
specified in this Work Letter.
Section B.8 Workmanlike Manner, Information to Tenant. Landlord agrees to
-----------------------------------------
ensure that all work to be done by Landlord
3
on the Premises is performed in a good and workmanlike manner. During the course
of Landlord's construction, Landlord shall keep Tenant apprised of the progress
of same, shall provide copies of existing reports and other documents relating
to same upon request and shall permit Tenant to make such inspections and audits
as Tenant may deem reasonably necessary or appropriate.
Section B.9 Tenant Delays. Tenant shall be responsible for any delay
-------------
(including associated costs) in the substantial completion of the Premises
resulting from any of the following causes:
(i) Tenant's failure to pay any portion of Tenant's Costs, as
hereinafter defined, when due; or
(ii) Tenant's specification of special materials or finishes, or
special installations, which special items cannot be delivered or completed
within Landlord's construction schedule (subject to Landlord's obligation to
give Tenant prior notice of same at the time of such specification); or
(iii) any change in the space plan and/or the plans and specifications
caused by Tenant, even though Landlord may approve such change (Landlord agrees
to estimate the delay to be caused by a change order, provided Tenant expressly
requests such estimate at the time it requests a change order); or
(iv) any other delay in substantial completion of the Tenant
Improvements directly attributable to the negligent or willful acts or omissions
of Tenant, its employees, or agents.
If any delay caused by Tenant results in or contributes to a delay in
substantial completion of the Premises, then substantial completion shall be
deemed to have occurred as of the date Landlord would have otherwise achieved
substantial completion, but for Tenant's delay. Landlord will specify in writing
to Tenant the Tenant delay(s) which resulted in or contributed to a delay in
substantial completion of the Premises.
Section B.10 Tenant Costs. To the extent that the plans and specifications
------------
reflect the scope of work described by the space plan, then Landlord, at its
expense not to exceed the Tenant Improvement Allowance set forth above, shall
cause the
4
construction of the Tenant Improvements, using Landlord's building-standard
methods and materials as modified by Tenant's pre-approved modifications to
plans and specifications. To the extent that the revised construction budget
exceeds the Tenant Improvement Allowance any such excess will be at Tenants
expense ("Tenant's Costs"). Tenant's Costs shall be paid to Landlord as follows:
(i) Prior to commencement of construction of the Tenant Improvements,
Tenant shall pay Landlord an amount equal to fifty (50%) percent of the Tenant's
Costs, as such amount is then determined by reference to the construction
budget.
(ii) When fifty (50%) of the Tenant Improvements are complete in
accordance with the plans and specifications (as verified in writing by
Landlord's architect), Tenant shall pay Landlord an amount equal to the
remaining unpaid balance of Tenant's Costs as such amount can then be reasonably
determined by Landlord based on available information.
(iii) Within ten (10) days following Landlord's submittal to Tenant
of a final accounting of Tenant's Costs, Tenant shall pay Landlord the then
remaining balance of Tenant's Costs, or Landlord shall reimburse Tenant as to
any excess amounts previously paid, as the case may be.
Tenant's Costs represent a reimbursement of monies expended by Landlord on
Tenant's behalf. Payment when due shall be a condition to Landlord's continued
performance under this Work Letter. Any delay in construction of the Tenant
Improvements or in Tenant taking occupancy of the Premises resulting from
Tenant's failure to make any Tenant's Costs payments when due shall be Tenant's
responsibility. Tenant's failure to pay any portion of Tenant's Costs when due
shall constitute a default under the Lease (subject to any applicable notice
requirements or grace periods).
5
EXHIBIT "C"
RENT SCHEDULE MOHAWK
TENANT MOHAWK INDUSTRIES
SQUARE FOOTAGE 186,537
ANNUAL INFLATOR ("A") 3.00%
ANNUAL INFLATOR ("B") 2.00%
ANNUAL INFLATOR ("C")
RATE PER SF $5.20
ANNUAL MONTHLY
BASE RENT BASE RENT
YEAR 1 $5.20 $ 969,992.40 $ 80,832.70
YEAR 2 $5.36 $ 999,092.17 $ 83,257.68
YEAR 3 $5.52 $l,029,064.94 $ 85,755.41
YEAR 4 $5.63 $1,049,646.24 $ 87,470.52
YEAR 5 $5.74 $1,070,639.16 $ 89,219.93
YEAR 6 $5.85 $1,092,051.94 $ 91,004.33
YEAR 7 $5.97 $1,113,892.98 $ 92,824.42
YEAR 8 $6.09 $1,136,170.84 $ 94,680.90
YEAR 9 $6.21 $1,158,894.26 $ 96,574.52
YEAR 10 $6.21 $1,158,894.26 $ 96,574.52
OPTION YEARS IF APPLICABLE
YEAR 11 6.21 $1,158,894.26 $ 96,574.52
YEAR 12 6.40 $1,193,661.09 $ 99,471.76
YEAR 13 6.59 $1,229,470.92 $102,455.91
YEAR 14 6.79 $1,266,355.05 $105,529.59
YEAR 15 6.79 $1,266,355.05 $105,529.59
YEAR 16 6.99 $1,304,345.70 $108,695.47
YEAR 17 7.20 $1,343,476.07 $111,956.34
YEAR 18 7.42 $1,383,780.35 $115,315.03
YEAR 19 7.64 $1,425,293.76 $118,774.48
YEAR 20 7.87 $1,468,052.58 $122,337.71
EXHIBIT "D"
PERMITTED EXCEPTIONS
[To be provided by Landlord]
SENECA INDUSTRIAL PARK
----------------------
RULES AND REGULATIONS
---------------------
1. Security. The Landlord may from time to time adopt appropriate systems
---------
and procedures for the security or safety of the Building, any persons
occupying, using, or entering the same, or any equipment, furnishings, or
contents thereof, and the Tenant shall comply with the Landlord's reasonable
requirements relative thereto.
2. Return of Keys. At the end of the Term, the Tenant shall promptly return
---------------
to the Landlord all keys for the Building and Premises which are in the
possession of the Tenant. In the event any Tenant fails to return keys, Landlord
may retain S50.00 of Tenant's security deposit for locksmith work and
administration.
3. Repair, Maintenance, Alterations, and Improvements. The Tenant shall
---------------------------------------------------
carry out Tenant's repair, maintenance, alterations, and improvements in the
Premises only during times agreed to in advance by the Landlord and in a manner
which will not interfere with the rights of other tenants in the Building.
4. Water Fixtures. The Tenant shall not use water fixtures for any purpose
---------------
for which they are not intended, nor shall water be wasted by tampering with
such fixtures. Any cost or damage resulting from such misuse by the Tenant shall
be paid for by the Tenant.
5. Personal Use of Premises. The Premises shall not be used or permitted
-------------------------
to be used for residential, lodging, or sleeping purposes or for the storage of
personal effects or property not required for business purposes.
6. Heavy Articles. The Tenant shall not place in or move about the Premises
---------------
without the Landlord's prior written consent any safe or other heavy article
which in the Landlord's reasonable opinion may damage the Building, and the
Landlord may designate the location of any such heavy articles in the Premises.
7. Bicyles, Animals. The Tenant shall not bring any animals or birds into
-----------------
the Building, and shall not permit bicycles or other vehicles inside or on the
sidewalks outside the Building except in areas designated from time to time by
the Landlord for such purposes.
8. Deliveries. The Tenant shall ensure that deliveries of supplies,
-----------
fixtures, equipment, furnishings, wares, and merchandise to the Premises are
made through such entrances, elevators, and corridors and at such times as may
from time to time be designated by the Landlord, and shall promptly pay or cause
to be paid to the Landlord the cost of repairing any damage in the Building
caused by any person making improper deliveries.
9. Solicitations. The Landlord reserves the right to restrict or prohibit
--------------
canvassing, soliciting, or peddling in the Building.
10. Food and Beverages. Only persons approved from time to time by the
-------------------
Landlord may prepare, solicit orders for, sell, serve, or distribute foods or
beverages in the Building, or use the Common Areas for any such purpose. Except
with the Landlord's prior written consent and in accordance with arrangements
approved by the Landlord, the Tenant shall not permit on the Premises the use of
equipment for dispensing food or beverages or for the preparation, solicitation
of orders for, sale, serving, or distribution of food or beverages.
11. Refuse. The Tenant shall place all refuse in proper receptacles
-------
provided by the Tenant at its expense in the Premises or in receptacles (if any)
provided by the Landlord for the Building, and shall keep sidewalks and
driveways outside the Building, and lobbies, corridors, stairwells, ducts, and
shafts of the Building, free of all refuse.
12. Obstructions. The Tenant shall not obstruct or place anything in or
------------
on the sidewalks or driveways outside the Building or in the lobbies, corridors,
stairwells, or other Common Areas, or use such locations for any purpose except
access to and exit from the Premises without the Landlord's prior written
consent. The Landlord may remove at the Tenants expense any such obstruction or
thing caused or placed by the Tenant (and unauthorized by the Landlord) without
notice or obligation to the Tenant.
13. Proper Conduct. The Tenant shall not conduct itself in any manner which
--------------
is inconsistent with the character of the Building as a first quality building
or which will impair the comfort and convenience of other tenants in the
Building.
14. Employees, Agents and Invitees. In these Rules and Regulations,
------------------------------
"Tenant" includes the employees, agents, invitees and licensees of the Tenant
and others permitted by the Tenant to use or occupy the Premises.
15. Parking. If the Landlord designates tenant parking areas for the
-------
Building, the Tenant shall park its vehicles and cause its employees and agents
to park their vehicles only in such designated parking areas. The Tenant shall
furnish the Landlord, upon request, with the current license numbers of all
vehicles owned or used by the Tenant or its employees or agents and the Tenant
thereafter shall notify the Landlord of any changes in such numbers within five
(5) days after the occurrence thereof. In the event of failure of the Tenant or
its employees or agents to park their vehicles in such designated parking areas,
the Tenant shall forthwith on demand pay to the Landlord the sum of Twenty and
No/100 ($20.00) Dollars per day per each car so parked. Landlord may itself or
through any agent designated for such purpose, make, administer, and enforce
additional rules and regulations regarding parking by tenants and by their
employees or agents, including, without limitation, rules and regulations
permitting the Landlord or such agent to move any vehicles improperly parked to
the designated tenant or employee parking areas. No disabled vehicle shall be
left in the parking areas of the Building for more than 24 hours.
GUARANTY OF LEASE
THIS GUARANTY OF LEASE is made as of October 15, 1999, by Mohawk
Industries, Inc., a Delaware corporation (the "Guarantor") in favor of Seneca
G&H, L.L.C., a Florida limited liability company (the "Landlord").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Aladdin Manufacturing Corporation, a Delaware corporation (the
"Tenant"), desires to lease from Landlord the premises more particularly
described in Exhibit "A" attached hereto (the "Premises");
WHEREAS, Guarantor and Tenant have requested Landlord as lessor to enter
into a lease agreement with Tenant as lessee dated as of the date hereof (the
"Lease") for the demise of the Premises to Tenant for a term of years more
particularly described therein; and
WHEREAS, Landlord has declined to enter into the Lease unless Guarantor
unconditionally guarantees the Lease in the manner hereinafter set forth.
NOW, THEREFORE, to induce Landlord to enter into the Lease, the undersigned
Guarantor hereby agrees as follows:
1. Guarantor unconditionally guarantees to Landlord the Tenant's full and
punctual performance and observance of all terms, covenants and conditions
contained in the Lease on Tenant's part to be kept, performed or observed.
Guarantor waives notice of any breach or default by Tenant. If, at any time,
default shall be made by Tenant in the performance or observance of any of the
terms, covenants or conditions contained in the Lease on Tenant's part to be
kept, performed or observed, Guarantor will keep, perform and observe the same,
as the case may be, in place and stead of Tenant.
2. Landlord may waive any of the terms or conditions of the Lease, or give
any consent to any manner or thing relating to the Lease, or grant any
indulgences or extensions of time to Tenant, all without notice to Guarantor and
without releasing the obligations of Guarantor hereunder.
3. The obligations of Guarantor hereunder shall not be released or
diminished by: (a) Landlord's receipt, application or release of security given
for the performance and observance of covenants and conditions contained in the
Lease on Tenant's part to be performed or observed; nor (b) any reletting of the
Premises or any related action taken by Landlord in accordance with the terms of
the Lease; nor (c) any modification or renewal or extension of the Lease or any
change in the size or location of the Premises agreed to by Tenant, but in case
of any such modification or change, the liability of Guarantor shall be deemed
modified in accordance with the terms of any such modification of the Lease or
change in the Premises.
4. The liability of Guarantor hereunder shall not be affected in any way
by: (a) the release or discharge of Tenant in any insolvency, receivership,
bankruptcy or other proceedings; nor (b) the impairment, limitation or
modification of the liability of Tenant or the estate of Tenant in bankruptcy,
or of any remedy for the enforcement of Tenant's liability under the Lease,
resulting from the operation of any present or future provision of the United
States Bankruptcy Code or other statute or from any decision in any court; nor
(c) the rejection or disaffirmance of the Lease in any
such proceedings; nor (d) the assignment or transfer of the Lease by Tenant; nor
(e) any subletting of all or any part of the Premises, with or without the
consent of Landlord; or (f) any disability or other defense of Tenant; nor (g)
the cessation of the liability of Tenant from any cause whatsoever.
5. No payments or acts of performance by Guarantor under this Guaranty
shall in any way or at any time entitle Guarantor to any right, claim or cause
of action against Tenant, or to any right, title or interest in or to Tenant's
rights under the Lease or any rights of Landlord, and Guarantor hereby waives,
for the benefit of Landlord and Tenant, any and all such rights which Guarantor
might otherwise have had in the absence of this waiver and which would have
otherwise entitled Guarantor to be a "creditor" of Tenant under the provisions
of the U.S. Bankruptcy Code (Title 11, U.S. Code) or any other bankruptcy or
insolvency law.
6. Guarantor and Landlord hereby voluntarily, knowingly and intentionally
WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY in any legal action or proceeding
arising under or in connection with this Guaranty or the Lease or concerning the
Premises or pertaining to any transaction related to or contemplated in the
Lease, regardless of whether such action or proceeding concerns any contractual
or tortious or other claim. Guarantor acknowledges that this waiver of jury
trial is a material inducement to Landlord in accepting this Guaranty, that
Landlord would not have accepted this Guaranty without this jury trial waiver,
and that Guarantor has been represented by an attorney or has had an opportunity
to consult with an attorney regarding this Guaranty and understands the legal
effect of this jury trial waiver.
7. In any action or proceeding brought in connection with the Lease or this
instrument: (a) Landlord shall be entitled to recover Landlord's costs and
expenses, including reasonable attorney's fees; (b) Guarantor submits to the
jurisdiction of the state and federal courts in the State of Florida; (c) the
venue of any such action or proceeding may at Landlord's option be laid in
Miami-Dade County, Florida or the county in which the Premises are located, and
Guarantor waives any claim that the same is an inconvenient forum; (d) Guarantor
agrees that service of process may be made by delivery of the same to ▇▇▇▇▇▇
▇▇▇▇▇▇, Regional Manager, Mohawk Industries, Inc., ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (with copy to Mohawk Industries, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Tel. 1-800-
▇▇▇-▇▇▇▇ Ext. 2660 Fax ▇-▇▇▇-▇▇▇-▇▇▇▇), or such other agent as Guarantor may
designate from time to time by written notice to Landlord; and (e) Guarantor
waives the right to interpose any set-off or non-compulsory counterclaim, or to
plead laches or any statute of limitation as a defense, or (to the extent the
same may be lawfully waived). The foregoing shall not be deemed to limit
Landlord's right to effect service of process in any other lawful manner or to
bring any such action or proceeding in any other forum permitted by law.
8. This instrument is a continuing guaranty and shall apply to the Lease,
to any extension or renewal thereof and to any holdover term following the
original term or any such extension or renewal.
9. This instrument may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by
Guarantor and Landlord.
10. This instrument shall be binding upon Guarantor and Guarantor's heirs,
personal representatives, successors and assigns, and this instrument shall
inure to the benefit of Landlord and Landlord's successors and assigns.
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WITNESS the due execution hereof as of the date first written above.
Signed, sealed and delivered in the GUARANTOR:
presence of:
MOHAWK INDUSTRIES, INC., a Delaware
/s/ ▇▇▇▇▇ ▇▇▇▇▇ corporation
-----------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Print Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇ Title: General Counsel
-----------------------
Print name: ▇▇▇ ▇▇▇▇▇▇ [CORPORATE SEAL]
STATE OF GEORGIA )
) SS:
COUNTY OF ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this 18th day of
October, 1999 by ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as general counsel of Mohawk Industries,
Inc., a Delaware corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Notary Public, State of Georgia
[NOTARIAL SEAL]
My commission expires:
Notary Public, Paulding County, Georgia
My Commission Expires Nov. 3, 2001
-3-
ADDENDUM TO LEASE AGREEMENT
---------------------------
THIS ADDENDUM (this "Addendum") is made as of the 15th day of October,
1999, by and between Seneca G&H, L.L.C., a Florida limited liability company,
having an address at ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord") and ALADDIN MANUFACTURING - CORPORATION, a Delaware corporation,
with its home office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Tenant").
W H E R E A S:
- - - - - - -
A. Landlord and Tenant are the parties to that certain Warehouse Lease
dated of even date herewith (the "Lease"), with respect to certain real
property located in Broward County, Florida, more particularly described in the
Lease.
B. The parties desire to amend the Lease in certain respects as more
particularly set forth below.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Miscellaneous.
-------------
(a) This Addendum shall be deemed part of, but shall take precedence
over and supersede any provisions to the contrary contained in the Lease.
(b) All initial capitalized terms used in this Addendum shall have the
same meaning as set forth in the Lease unless otherwise provided.
(c) Except as specifically modified hereby, all of the provisions of
the Lease which are not in conflict with the terms of this Addendum shall remain
in full force and effect.
2. Within thirty (30) days following the effective date of this Addendum
(the first day on which both of the parties hereto have executed this Addendum),
Tenant shall have the right to increase the square footage of the Premises, by
written notice of its General Counsel, up to a maximum of 256,592 square feet of
GLA on the terms and conditions contained in the Lease, provided that: (i) the
Premises either (a) represent an expansion within the currently proposed
Building or (b) constitute the entire floor area of a newly designed Building,
(ii) during said thirty (30) days, Tenant provides Landlord with written notice
of its exercise of such right containing Tenant's desired square footage for the
Premises, (iii) the Base Rent, as subjected to increases over the Initial Term
and any Extension Term(s), is increased to reflect the additional square footage
desired by Tenant, (iv) Tenant's Proportionate Share of the Project is increased
to reflect the additional square footage desired by Tenant and Tenant's
Proportionate share of the Building is increased to reflect the additional
square footage desired by Tenant, (v) the design/dimensions of any new Building
desired by Tenant is
-1-
such that, in Landlord's sole and absolute discretion, said Building as designed
can be feasibly utilized and marketed as a multi-tenant Building upon reversion
of Tenant's leasehold interest to Landlord, (vi) Tenant executes an addendum to
the Lease specifically setting forth the foregoing (i.e. the adjusted square
footage of the Premises, the adjusted Base Rent, the adjusted Tenant's
Proportionate Share of the Project, and the adjusted Tenant's Proportionate
Share of the Building), and (vii) Tenant procures the Guarantor's execution of
an addendum to the Guaranty, whereby the Guarantor acknowledges and agrees with
Tenant's execution of said Lease addendum.
IN WITNESS WHEREOF this Addendum has been executed as a sealed instrument
as of the day and year first above written.
LANDLORD:
---------
Witnesses: SENECA G&H, L.L.C.,
a Florida limited liability company
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ Roabele, Jr.
----------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ Roabele, Jr.
----------------------------------
Title: Member
---------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III Date: October 19, 1999
----------------------------- ----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III (SEAL)
TENANT:
-------
ALLADIN MANUFACTURING CORPORATION,
a Delaware corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
/s/ ▇▇▇ ▇▇▇▇▇▇ Title: Senior Counsel
----------------------------- ---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇ Date: October 19, 1999
----------------------------------
(CORPORATE SEAL)
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