EXHIBIT - 10.41
LEASE AGREEMENT
THIS LEASE
AGREEMENT ("LEASE") is made as of the date upon which the
latter of the parties hereto executes the same as set forth on the
execution
page hereof, by and between FLAGLER DEVELOPMENT COMPANY, a Florida
corporation,
an address of which is 10505 N.W. 112th Avenue, Suite 14, Miami,
Florida 33178
("LANDLORD"), and FMI INTERNATIONAL LLC, a Delaware limited
liability company,
an address of which is 800 Federal Boulevard, Carteret, New Jersey
07008
("TENANT").
WITNESSETH:
1. TERM.
1.1
PROPERTY AND PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord Suite 5, which is deemed to contain 124,123 rentable
square feet of
space, and which constitutes all of the rentable square footage in
the building
known as Building #FLW5 located at 9901 N.W. 106th Street, Medley,
Florida 33178
(the "BUILDING"). The Building is included in a multiple-building
business and
industrial park known as Flagler Station (f/k/a Beacon Station)
("PARK"). The
Building and the location of the Premises are as shown on the Site
Plan attached
hereto as EXHIBIT A. The legal description of the land upon which
the Building
is situated is set forth in EXHIBIT A-1 attached hereto (the
"PROPERTY"). The
Building and the Property are collectively referred to herein as
the "PREMISES".
1.2 COMMON
AREAS.
Tenant and its employees and customers will have the
nonexclusive
right during the Term of this Lease to use the parking areas,
streets,
driveways, aisles, sidewalks, curbs, delivery passages, loading
areas, lighting
facilities, and all other areas situated on or in the Park which
are designated
by Landlord, from time to time, for use by all tenants of the
Building or the
Park (collectively, the "COMMON AREAS"), in common with Landlord,
other tenants
of the Park and other persons designated by Landlord, subject to
the Rules and
Regulations promulgated by Landlord from time to time. The Common
Areas do not
include any portion of the Premises. All of the yard space within
the fenced
area of the Premises shall be for the exclusive use of Tenant.
1.3 LEASE
TERM.
The term of this Lease (the "TERM") shall be 62 calendar months.
The
Term shall commence on the date of Substantial Completion of the
Landlord's
Work, as defined in the Work Letter attached hereto as EXHIBIT E
(the
"COMMENCEMENT DATE"), which is projected to be 30 days from and
after the
Delivery Date (as defined below) (the "PROJECTED COMPLETION DATE"),
and shall in
no event be earlier than January 1, 2007; provided, however, that
Tenant shall
have no right to possession of the Premises until the "Security
Deposit" (as
defined herein) has been delivered to Landlord (the Security
Deposit shall not
be deemed delivered to Landlord if it is in
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the form of a check until that check has cleared the bank and the
full amount of
the funds have been credited to Landlord's account) and Tenant has
provided
Landlord with a certificate of insurance evidencing the insurance
coverages that
Tenant is obligated to maintain pursuant to this Lease. Landlord
and Tenant
shall execute a Memorandum of Lease Commencement substantially in
accordance
with EXHIBIT C attached hereto establishing the Commencement Date
as soon as it
has been determined.
As of the date that Landlord Substantially Completes the
Landlord's
Work with respect to at least 50% of the warehouse area of the
Premises (the
"INITIAL SPACE"), and delivers the Initial Space to Tenant (the
"DELIVERY
DATE"), Tenant and its employees, agents and contractors may enter
into the
Initial Space (and such other portions of the warehouse area of the
Premises as
Landlord Substantially Completes Landlord's Work therein) for the
sole purpose
of installing Tenant's racking system; provided, however, that in
connection
with the access permitted hereunder, Tenant covenants (i) to comply
with all
reasonable standards and regulations established by Landlord and to
coordinate
its efforts with Landlord's contractor to ensure timely completion
of all work
in the Premises and the maintenance of the Premises in a safe
condition; (ii)
that prior to exercising such right, Tenant shall deliver to
Landlord a
certificate of insurance evidencing the insurance coverage that
Tenant is
obligated to maintain pursuant to this Lease; and (iii) that Tenant
shall
indemnify and hold Landlord harmless from and against any and all
claims arising
from, or claimed to arise from, or out of the performance of any
work by or on
behalf of Tenant in the Premises, or for any other reason
whatsoever arising out
of Tenant's access to or being in the Premises prior to the
Commencement Date.
If the Delivery Date does not occur on or before January 15, 2007
(as extended
by Force Majeure), then the Free Rent Period (as defined herein)
shall be
extended by one day for each day between January 15, 2007 and the
Delivery Date.
Notwithstanding the foregoing to the contrary, the Delivery Date
shall not be
deemed to have occurred unless and until Landlord has completed the
Landlord's
Work relating to (i) the repair or replacement of warehouse lights
and (ii) the
removal of any hazmat cage (including any Punch List Items related
to items (i)
and (ii) above) in the Initial Space. Landlord shall endeavor to
provide Tenant
with two weeks' prior notice of the projected Delivery Date.
Landlord will cause Substantial Completion of the Landlord's Work
on
or before the Projected Completion Date, as extended by Force
Majeure (as
defined in SECTION 11.10) and/or any delay caused by Tenant, its
agents,
employees or contractors ("TENANT DELAY"), in which case the
Projected
Completion Date, if adversely affected by Force Majeure and/or
Tenant Delay,
will be extended by one day for each day of such Force Majeure
and/or Tenant
Delay. If Substantial Completion of the Landlord's Work is not
achieved by
Landlord on or before the Projected Completion Date, as extended by
Force
Majeure and/or Tenant Delay (the "COMPLETION DEADLINE"), the Free
Rent Period
will be extended by one day for each day between the Completion
Deadline and the
Commencement Date ("TENANT'S DELAY DAMAGES"), which Tenant Delay
Damages are
deemed to be liquidated damages and shall constitute Tenant's sole
and exclusive
remedy for such delay (except as otherwise expressly set forth in
this SECTION
1.3), and not a penalty. Tenant's actual damages for late
Substantial Completion
of the Landlord's Work are difficult and impractical to ascertain,
and the
Tenant's Delay Damages are intended to be reasonable estimates for
the amounts
of damages that Tenant will suffer by reason of Landlord's
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delay in completing the Landlord's Work. Notwithstanding the
foregoing to the
contrary, for purposes of this SECTION 1.3 only, Force Majeure
shall not be
deemed to include any labor disputes or strikes.
Notwithstanding anything herein to the contrary, this Lease and
Landlord's obligations hereunder are contingent upon Landlord
securing
possession and control of the Premises from the existing tenant. If
Landlord
fails to secure possession and control of the Premises from the
existing tenant
on or before January 31, 2007, Tenant shall have the option to
terminate this
Lease by delivering written notice to Landlord any time after such
date, but
before Landlord notifies Tenant that Landlord has secured
possession and control
of the Premises, and if Tenant terminates this Lease, Landlord
shall refund to
Tenant, within 10 days of Tenant's delivery of Tenant's termination
notice, any
sums previously paid by Tenant to Landlord, and otherwise neither
Landlord nor
Tenant will have any liability to the other. In the event that
Tenant terminates
this Lease pursuant to the terms hereof, then Tenant shall be
deemed to have
waived any right to collect Tenant Delay Damages and any and all
other claims
against Landlord relating to Landlord's failure to secure
possession of the
Premises from the existing Tenant, it being agreed that Tenant's
sole remedies
as a result of Landlord's failure to secure possession of the
Premises and
timely achieve Substantial Completion shall be as provided in this
SECTION 1.3
and all other remedies of Tenant as a result of such failures are
deemed to be
waived by Tenant upon such election.
1.4 OPTION
TO RENEW.
Landlord hereby grants Tenant the option to renew (the "RENEWAL
OPTION") the initial Term (not to include, for purposes of this
SECTION 1.4
only, any Renewal Term, as hereinafter defined) for one (1)
additional term of
60 months (the "RENEWAL TERM"), commencing as of the date
immediately following
the expiration of the initial Term, such option to be subject to
the following
covenants and conditions:
(i) Tenant shall give Landlord notice (the "RENEWAL NOTICE") of
Tenant's election to exercise its Renewal Option not later than 180
days prior
to the expiration of the initial Term of the Lease; provided that
Tenant's
failure to give the Renewal Notice by said date, whether due to
Tenant's
oversight or failure to cure any existing defaults or otherwise,
shall render
the Renewal Option null and void.
(ii) Tenant shall not be permitted to exercise any Renewal Option
at
any time during which Tenant is in default under the Lease, subject
to
applicable notice and cure periods (if any). If Tenant fails to
cure any default
under the Lease prior to the commencement of the Renewal Term,
subject to
applicable notice and cure periods, the Renewal Term shall be
immediately
canceled, unless Landlord elects to waive such default, and Tenant
shall
forthwith deliver possession of the Premises to Landlord as of the
expiration or
earlier termination of the initial Term of the Lease.
(iii) Tenant shall be deemed to have accepted the Premises in
"as-is" condition as of the commencement of the Renewal Term,
subject to any
other repair and maintenance
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obligations of Landlord under the Lease, it being understood and
agreed that
Landlord shall have no additional obligation to renovate or remodel
the Premises
or any portion of the Building as a result of Tenant's renewal of
the Lease.
(iv) The covenants and conditions of the Lease in force during
the
initial Term, as the same may be modified from time to time, shall
continue to
be in effect during the Renewal Term, except that the "Base Rent"
for the
Renewal Term shall be at the rate then prevalent in Miami-Dade
County, Florida
for similar properties (the "FAIR MARKET RENTAL VALUE"), but in no
event shall
such rate be less than the Base Rent for the year immediately
preceding the
first year of such Renewal Term, and shall escalate annually at the
rate of
three percent (3%). Following receipt by Landlord of the Renewal
Notice,
Landlord shall notify Tenant of the "fair market rental value" of
the Premises
as of the commencement of the Renewal Term. If Tenant disputes
Landlord's
opinion, Tenant shall have the right, by written notice to Landlord
given within
20 days after receiving Landlord's notice of the "fair market
rental value", to
object to the amount thereof. Failure by Tenant to give notice of
objection
within such 20-day period (time being of the essence) shall
constitute an
acceptance by Tenant of the "fair market rental value" as
determined by
Landlord. If Tenant shall so object, Tenant shall, at its cost and
expense,
engage an appraiser who is a member of the Appraisal Institute and
who has at
least five (5) years experience in the appraisal of similar
buildings in the
Miami-Dade County, Florida area, to determine the "fair market
rental value" of
the Premises as of the commencement of the Renewal Term. Such
appraiser shall
render his or her report to Landlord and Tenant not later than 30
days after the
date of Tenant's notice of objection to the "fair market rental
value" as
determined by Landlord. If such appraiser shall fail to render such
report
within said 30-day period (time being of the essence), Tenant's
objection to the
"fair market rental value" as determined by Landlord shall
conclusively be
deemed to have been waived and the Base Rent for the Renewal Term
shall be as
determined by Landlord. If the appraiser shall render his or her
report within
such 30-day period and the "fair market rental value" so determined
shall not be
acceptable to Landlord, Landlord shall have the right, at its cost
and expense,
to so notify Tenant. Landlord shall then select an appraiser
(having the same
qualifications as those set forth above) to determine the "fair
market rental
value" of the Premises as of the commencement of the Renewal Term.
In the event
that the two appraisals shall determine a "fair market rental
value" which shall
not differ by more than 5% of the lower rent, the "fair market
rental value"
shall be deemed to be the average of the two appraisals. If the two
appraisals
shall differ by more than such 5% amount, then the two appraisers
shall select a
third appraiser, and the "fair market rental value" of the Premises
as
determined by such third appraiser shall be binding and conclusive
upon Landlord
and Tenant. The appraiser for Landlord and the appraiser for Tenant
shall select
such third appraiser within 10 days after Landlord notifies Tenant
that such
third appraisal is required. The said third appraiser shall be
instructed to
render his or her report to Landlord and Tenant not later than 30
days after the
date of his or her engagement.
(v) Tenant's Renewal Option shall not be transferable by
Tenant,
except in conjunction with a permissible transfer in accordance
with the
applicable provisions of the Lease. In no event shall a subtenant
have the right
to exercise a Renewal Option.
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2. RENT AND OTHER CHARGES.
2.1 BASE
RENT.
Tenant agrees to pay monthly rent ("BASE RENT") on the first day
of
each month of the Term, together with any and all rental, sales or
use taxes
levied by any governmental body for the use or occupancy of the
Premises and any
rent or other charges payable hereunder in accordance with the
following
schedule:
CALENDAR MONTHS MONTHLY
BASE RENT
---------------
-----------------
1-2
Abated
3-14
$44,580.84
15-26
$46,339.25
27-38
$48,201.10
39-50
$50,166.38
51-62
$52,131.66
If the Commencement Date should be a date other than the first
day
of a calendar month, then the first installment of Base Rent shall
be prorated
by multiplying the regular monthly installment of Base Rent by a
fraction, the
numerator of which is the number of days from the Commencement Date
through the
final day of the first calendar month of the Term and the
denominator of which
is the total number of days in the calendar month in which the
Commencement Date
occurs. In such event, Lease Month 1 would commence on the first
day of the
calendar month following the month in which the Commencement Date
occurs.
Base Rent shall be paid without demand, set off or deduction to
Landlord at P.O. Box 861945, Orlando, Florida 32886-1945 or such
other address
as Landlord directs in writing. Landlord shall endeavor to deliver
an invoice to
Tenant each month setting forth the amount of Rent to be paid by
Tenant;
provided, however, that Landlord's failure to deliver any such
invoice to Tenant
shall not excuse Tenant from its payment obligations under this
Lease.
Tenant shall deliver to Landlord, simultaneous with Tenant's
execution and delivery to Landlord of this Lease, the sum of
$71,939.62,
representing one month's prepaid Base Rent plus one month's prepaid
Operating
Expenses plus sales tax ("PREPAID RENT"), which sum shall be
applied to the
first full calendar month of the Term that Rent is due and payable.
Rent owed
for the initial partial calendar month of the Term, if any, will be
invoiced by
Landlord and paid by Tenant with Tenant's next rent payment.
Notwithstanding
anything to the contrary contained in this Lease, provided this
Lease is then in
good standing and Tenant is not in default, Base Rent and Operating
Expenses for
the first two (2) full calendar months of the Term (the "FREE RENT
PERIOD")
shall be abated. The foregoing shall not alter Tenant's obligation
to deliver
all agreed Prepaid Rent to Landlord upon execution of this Lease,
and such
Prepaid Rent shall be applied to the first full calendar month of
the Term
following the month for which Rent is abated.
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2.2 LATE
CHARGES.
If any Base Rent or other payment due under this Lease is not
received by Landlord within 10 days of the due date of such
payment, Tenant
shall pay, in addition to such payment a late charge equal to the
greater of 5%
of the payment which is past due or $250.00. If any payment due
from Tenant
shall remain overdue for more than 10 days, interest shall accrue
daily on the
past due amount from the date such amount was due until paid or
judgment is
entered at a rate equivalent to the lesser of 18% per annum and the
highest rate
permitted by law. Interest on the past due amount shall be in
addition to and
not in lieu of the 5% late charge or any other remedy available to
Landlord.
Notwithstanding the foregoing, no late charge or interest shall be
due and
payable on the first 2 instances of late payment in any calendar
year unless
such payment remains outstanding for more than 10 days after
Tenant's receipt of
written notice of the past due amount.
2.3
ADDITIONAL RENT.
All charges payable by Tenant under the terms of this Lease
other
than Base Rent are called "ADDITIONAL RENT." Unless this Lease
provides
otherwise, all Additional Rent shall be paid with the next monthly
installment
of Base Rent and shall include all applicable sales or use taxes.
The term
"RENT" shall mean Base Rent and Additional Rent.
2.4
OPERATING EXPENSES.
2.4.1 DEFINITIONS. For all purposes of this Lease, the
following
terms shall have the meanings ascribed to them herein.
2.4.1.1 "OPERATING EXPENSES" shall mean any expenses incurred
whether by Landlord or by others on behalf of Landlord, arising out
of
Landlord's maintenance, operation, repair, replacement (if such
replacement is
generally regarded in the industry as increasing operating
efficiency or is
required under any Applicable Law that was not in effect or not
applicable to
the Park on the Commencement Date) and administration of the Park,
Building,
Premises and Common Areas, including, without limitation: (i) all
real estate,
personal property and other ad valorem taxes, and any other levies,
charges,
local improvement rates, and assessments whatsoever assessed or
charged against
the Park, Building, Premises and Common Areas, the personal
property owned by
Landlord and used in the operation of the Park, Building or Common
Areas therein
contained, including any amounts assessed or charged in
substitution for or in
lieu of any such taxes, excluding only income, profits, franchise
or capital
gains taxes imposed upon Landlord, and including all fees and costs
associated
with the appeal of any assessment on taxes; (ii) insurance that
Landlord is
obligated or permitted to obtain under this Lease and any
deductible amount
applicable to any claim made by Landlord under such insurance;
(iii) security,
if any is provided by Landlord; (iv) landscaping and pest control,
(v) a
reasonable management fee; (vi) electricity, water, sewer, gas,
window washing,
janitorial services, trash and debris and other maintenance and
utility charges
(to the extent not paid directly by Tenant to the provider); (vii)
wages and
benefits, and all taxes thereon, payable to employees of Landlord
and Landlord's
property manager whose duties are directly connected
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with the operation and maintenance of the Premises, Building,
Common Areas or
Park (which amounts shall be prorated as to any employees whose
duties cover
other buildings so as to apply only to the Building); and (viii)
dues and
assessments under any applicable deed restrictions or declarations
of covenants
and restrictions. If the Park is a multi-building project and any
tax expense,
insurance expense, or other Operating Expense is not assessed
separately or
charged specifically to the Building, but is charged against the
Park as a
whole, Landlord shall reasonably determine the portion of such
Operating
Expenses chargeable to Tenant based upon a fraction in which the
numerator is
the square footage of the Premises and the denominator is the total
square
footage of all buildings in the Park (or applicable portion
thereof), as the
same may be expanded.
Operating Expenses shall, however, exclude: (i) interest
and principal amortization or other payments made by Landlord on
loans to
Landlord, including mortgage loans and other debt costs or ground
lease
payments, if any; (ii) depreciation of buildings and other
improvements (except
permitted amortization of certain capital expenditures); (iii)
legal fees in
connection with leasing, tenant disputes or enforcement of leases;
(iv) real
estate brokers' commissions or marketing costs; (v) improvements or
alterations
to tenant spaces not required by law or insurance underwriting
standards; (vi)
the cost of providing any service directly to, and paid or assumed
directly by,
any tenant; (vii) costs of any items to the extent Landlord
receives
reimbursement from insurance proceeds condemnation proceeds or from
a warranty
or other such third party (such proceeds to be deducted from
Operating Expenses
in the year in which received); (viii) costs of repairs required as
the result
of or arising from the negligent act or omission of Landlord or any
of its
agents, servants, employees, contractors, or sub-contractors; (ix)
any and all
judgments against Landlord, except to the extent that said
judgments represent
actual costs and expenses of the nature described in subparagraphs
(i) through
(viii) in the preceding paragraph; (x) costs of maintenance and
operation of,
and repairs, additions and replacements made to, buildings in the
Park other
than the Building; and (xi) capital expenditures, except those (a)
made
primarily to reduce Operating Expenses or increases therein, or to
comply with
laws or insurance requirements (excluding capital expenditures to
cure
violations of laws or insurance requirements that existed prior to
the date of
this Lease), or (b) for replacements (as opposed to additions or
new
improvements); provided, any such permitted capital expenditure
shall be
amortized (with interest at the prevailing loan rate available to
Landlord when
the cost was incurred) over: (x) the period during which the
reasonable
estimated savings in Operating Expenses equals the expenditure, if
applicable,
or (y) the useful life of the item as reasonably determined by
Landlord, but in
no event less than 5 years nor more than 10 years.
2.4.1.2 "TENANT'S SHARE" shall mean 100% of the annual
Operating Expenses of the Building. Notwithstanding anything to the
contrary
contained in this Section 2.4, for the purpose of determining
Tenant's Share of
Operating Expenses, the increases in Operating Expenses, other than
taxes and
assessments, property owners' association assessments, insurance,
utilities,
contracts which have obligations that increase based on increases
in the
Consumer Price Index (CP1) and other expenses that are outside the
Landlord's
immediate control, shall be capped at cumulative increases of five
percent (5%)
per year.
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2.4.2 PAYMENT OF OPERATING EXPENSES. In addition to the payment
of
Base Rent, Tenant shall pay Tenant's Share to Landlord during the
Term. On or
before March 31st of each year, Landlord shall provide an estimate
of the
Operating Expenses for the current calendar year and an estimate of
Tenant's
Share, if any (the "ESTIMATE STATEMENT"). Tenant shall remit
monthly one-twelfth
(l/12th) of Tenant's Share (the "ESTIMATED PAYMENT") as Additional
Rent together
with its payments of Base Rent; provided that Landlord may invoice
Tenant
retroactively for the months within the Term of January through the
month of
issuance of the Estimate Statement. On or before March 31st of each
calendar
year, Landlord shall send a statement to Tenant detailing all
Operating Expenses
for the prior year and setting forth the amount representing the
Tenant's Share,
as reconciled for the actual Operating Expenses of the prior year
(the
"OPERATING EXPENSE STATEMENT"). If the Operating Expense Statement
indicates
that the estimated Operating Expenses paid by Tenant during the
preceding year
exceeded Tenant's Share, then Tenant shall be given a credit in the
amount of
the difference between the Estimated Payments made in the preceding
year and the
Tenant's Share against its next due installments of Operating
Expenses. If the
Operating Expense Statement indicates that Tenant's Share exceeded
the Estimated
Payments, then Tenant shall remit the difference to Landlord as
Additional Rent
within 30 days following Tenant's receipt of the Operating Expense
Statement.
Landlord's failure to provide a statement shall not prejudice
Landlord's right
to collect a shortfall or Tenant's right to receive a credit for
over payments.
2.4.3 TENANT SPECIFIC OPERATING EXPENSES. If the nature of
Tenant's
business within the Premises is such that additional costs are
incurred by
Landlord for insurance, cleaning, utilities, sanitation, trash
removal, pest
control, disposal services or other Operating Expenses, Tenant
agrees to pay as
Additional Rent to Landlord on demand the amount of such additional
costs.
2.4.4. UTILITIES; JANITORIAL SERVICES.
2.4.4.1 UTILITIES AT THE PREMISES. Tenant shall be solely
responsible for and shall promptly pay directly to the service
provider all
charges for gas, heat, light, electricity, security, power,
telephone and any
other utility or service used in or servicing the Premises and all
other costs
and expenses involved in the care, maintenance, and use
thereof.
2.4.4.2 JANITORIAL SERVICES. Tenant shall be solely
responsible for and shall promptly pay for all window washing,
janitorial
service and trash and debris removal charges relating to the
Premises.
2.4.5 TENANT'S REVIEW OF OPERATING EXPENSES. Tenant shall have
the
right to examine and review Landlord's books and records pertaining
to Operating
Expenses ("TENANT'S REVIEW"), at Tenant's expense, one time during
each calendar
year provided that (i) Tenant provides Landlord with written notice
of its
election to conduct Tenant's Review no later than three (3) months
following
Tenant's receipt of the Operating Expense Statement and completes
Tenant's
Review within 60 days after giving such notice; (ii) there is no
event of
default under the Lease as of the date that Tenant delivers such
notice or any
default that occurs during Tenant's Review after the giving of
notice and that
is not cured or in the process of being cured
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within any applicable cure periods, provided, however, that Tenant
shall lose
the right to perform Tenant's Review if such default is not cured
during the
applicable cure period; (iii) Tenant fully and promptly pays all
Rent, including
Tenant's Share of Operating Expenses as billed by Landlord pending
the outcome
of Tenant's Review; (iv) Tenant's Review is conducted by a
qualified employee of
Tenant or by an accounting firm engaged by Tenant on a
non-contingency fee
basis; (v) Tenant and the person(s) conducting Tenant's Review
agree that they
will not divulge the contents of Landlord's books and records or
the result of
their examination to any other person, including any other tenant
in the Park,
other than Tenant's attorneys, accountants, employees and
consultants who have
need of the information for purposes of administering this Lease
for Tenant or
as otherwise required by law. Tenant shall not be entitled to
challenge
Landlord's calculation of Operating Expenses in any year(s) prior
to the year
for which Tenant's Review is being conducted, all such Operating
Expenses to be
deemed final and binding on the parties once Tenant's Review for
that year has
been conducted or Tenant's right to conduct Tenant's Review for
such year has
elapsed. Tenant's Review shall be conducted at Landlord's office
where the
records are maintained during Landlord's normal business hours. In
the event
that Tenant's Review demonstrates that Landlord has overstated
Operating
Expenses, Landlord shall reimburse Tenant for any overpayment of
Tenant's Share
of such Operating Expenses within 30 days of Landlord's receipt of
reasonably
sufficient documentation of such overstatement from Tenant;
provided, however,
that Tenant's Review must be completed within the time frames set
forth in (i)
above or Landlord shall have no obligation to reimburse Tenant for
any
overstatement of Operating Expenses for that year then under
review. In the
event that Tenant's Review demonstrates that Landlord has
overstated the
Operating Expenses for the year reviewed by more than 5%, Landlord
shall
reimburse Tenant for its reasonable out-of-pocket expenses incurred
in
conducting Tenant's Review, provided that the amount of such
reimbursement shall
not exceed the amount of the overstatement of Operating Expenses,
in addition to
reimbursement of the overstated Operating Expense amount, within 30
days of
Landlord's receipt of documentation reasonably acceptable to
Landlord reflecting
the cost of Tenant's Review Tenant's Review. If Landlord has not
overstated
Operating Expenses or if any such overstatement is less than 5%,
then Tenant's
Review shall be conducted at Tenant's sole cost and expense.
3. USE OF PROPERTY.
3.1
PERMITTED USES.
Tenant may use the Premises only for the following Permitted
Use:
(i) warehouse and distribution of apparel and other general
merchandise, (ii)
sales and brokerage services for freight transportation, ocean
non-vessel
operators and foreign consolidation, (iii) office use related to
the uses
described in (i) and (ii), and, (iv) subject to the terms of the
Declaration (as
defined in SECTION 3.8 below), storage of ocean containers, storage
containers,
and tractor trailers outside the Building within the fenced area of
the
Premises. Tenant shall not stack any containers outside of the
Building. Tenant
shall observe all reasonable rules and regulations established by
Landlord from
time to time for the Building. The rules and regulations in effect
as of the
date hereof are attached to and made a part of this Lease as
EXHIBIT B. Landlord
will have the right at all times to change and amend the rules and
regulations
in any reasonable manner as
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it may deem advisable for the safety, care and operation or use of
the Park or
the Premises and shall notify Tenant thereof. Tenant shall not
create a nuisance
or use the Premises for any illegal or immoral purpose.
3.2
COMPLIANCE WITH LAWS.
3.2.1 LANDLORD'S COMPLIANCE. Except as set forth in SECTION
3.2.2
below, during the Term of this Lease, Landlord shall be responsible
for making
any modifications to the Building (including the Premises) and Park
or its
appurtenances, but including the parking lot, common areas, and
entrances
serving the Park and Building, required pursuant to any federal,
state or local
laws, common law, ordinances, building codes, and rules and
regulations of
governmental entities having jurisdiction over the Park and/or the
Building,
including but not limited to the Board of Fire Underwriters and the
Americans
with Disabilities Act (the "ADA") and all regulations and orders
promulgated
pursuant to the ADA (collectively, "APPLICABLE LAWS"). Any
modifications to the
Park and the Building made by Landlord pursuant to the provisions
of this
paragraph shall initially be at Landlord's expense, but the cost
thereof may be
included in Operating Expenses pursuant to SECTION 2.4, to the
extent expressly
permitted therein.
3.2.2 TENANT'S COMPLIANCE. Tenant shall comply with all
Applicable
Laws relating to its use or occupancy of the Premises, and shall
promptly comply
with all governmental orders and directives for the correction,
prevention, and
abatement of any violation of Applicable Laws in, upon, or
connected with the
Premises, all at Tenant's sole expense. Tenant warrants that all
improvements or
alterations of the Premises made by Tenant or Tenant's employees,
agents or
contractors, either prior to Tenant's occupancy of the Premises or
at any time
during the Term (excluding the Landlord's Work), will comply with
all Applicable
Laws. Tenant will procure at its own expense all permits and
licenses required
for the transaction of its business in the Premises. In addition,
Tenant
warrants that its use of the Premises will be in strict compliance
with all
Applicable Laws. In the event that (i) Tenant's specific use and
occupancy of
the Premises, or (ii) any alterations to the Premises performed by
or on behalf
of Tenant pursuant to this Lease (including, without limitation,
the
installation of Tenant's racking system), necessitates or triggers
any
modifications (including structural modifications) to the Premises
or Building
or alterations to the Building systems, the same shall be made by
Landlord
pursuant to a budget reasonably agreed upon by Landlord and Tenant
and promptly
reimbursed by Tenant within 30 days after written demand by
Landlord.
3.3
HAZARDOUS MATERIAL.
Throughout the Term, Tenant will prevent the presence, use,
generation, release, discharge, storage, disposal, or
transportation of any
Hazardous Materials (as hereinafter defined) on, under, in, above,
to, or from
the Premises except that Hazardous Materials may be used in the
Premises as
necessary for the customary maintenance of the Premises provided
that same are
used, stored and disposed of in strict compliance with Applicable
Laws. For
purposes of this provision, the term "HAZARDOUS MATERIALS" will
mean and refer
to any wastes, materials, or other substances of any kind or
character that are
or become regulated as hazardous or toxic waste or substances, or
which require
special handling or treatment, under any Applicable Laws.
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If Tenant's activities at the Premises or Tenant's use of the
Premises (a) results in a release of Hazardous Materials that is
not in
compliance with Applicable Laws or permits issued thereunder; (b)
gives rise to
any claim or requires a response under Applicable Laws or permits
issued
thereunder; (c) causes a significant public health effect; or (d)
creates a
nuisance, or (e) causes the presence at the Premises of Hazardous
Materials in
levels that violate Applicable Laws or permits issued thereunder,
then Tenant
shall, at its sole cost and expense: (i) immediately provide verbal
notice
thereof to Landlord as well as notice to Landlord in the manner
required by this
Lease, which notice shall identify the Hazardous Materials involved
and the
emergency procedures taken or to be taken; and (ii) promptly take
all action in
response to such situation required by Applicable Laws, provided
that Tenant
shall first obtain Landlord's approval of the non-emergency
remediation plan to
be undertaken. In the event of Hazardous Materials contamination at
the
Premises, other than as a result of Tenant's activities at the
Premises or
Tenant's use of the Premises, then the work required to bring the
Premises into
compliance with Applicable Laws will be performed by Landlord, at
its expense
(and shall not be passed through as Operating Expenses).
Tenant acknowledges that it has received and reviewed the
executive
summary from that certain Phase I Environmental Assessment dated
May 29, 2001,
prepared by Professional Service Industries, Inc. (the "PHASE
I").
Tenant shall at all times indemnify and hold harmless Landlord
against and from any and all claims, suits, actions, debts,
damages, costs,
losses, obligations, judgments, charges and expenses (including
reasonable
attorneys' fees) of any nature whatsoever suffered or incurred by
Landlord to
the extent they were caused by the following activities of Tenant
on the
Premises during the Term (and any other period when Tenant is in
possession of
the Premises) and arise from events or conditions which came into
existence
after the Commencement Date: (i) any release, threatened release,
or disposal of
any Hazardous Materials at the Premises, or (ii) the violation of
any Applicable
Laws at the Premises, pertaining to protection of the environment,
public health
and safety, air emissions, water discharges, hazardous or toxic
substances,
solid or hazardous wastes or occupational health and safety. The
foregoing
obligations of Tenant shall survive the expiration or earlier
termination of
this Lease.
Landlord shall at all times indemnify and hold harmless Tenant
against and from any and all claims, suits, actions, debts,
damages, costs,
losses, obligations, judgments, charges and expenses (including
reasonable
attorneys' fees) of any nature whatsoever suffered or incurred by
Tenant to the
extent they were caused by the following activities of Landlord at
the Premises:
(i) any release, threatened release, or disposal of any Hazardous
Materials at
the Premises, or (ii) the violation of any Applicable Laws at the
Premises,
pertaining to protection of the environment, public health and
safety, air
emissions, water discharges, hazardous or toxic substances, solid
or hazardous
wastes or occupational health and safety.
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3.4
SIGNS.
Tenant shall not place any signs on the Premises, Building or
Park
except with the prior written consent of Landlord, including
consent as to
location and design, which may be withheld in Landlord's sole
discretion,
provided that Tenant may place exterior signs on the exterior of
and in front of
the Building in locations approved in advance by Landlord, provided
that any and
all such signs shall be installed and shall be maintained by
Tenant, at its sole
cost and expense and shall be in compliance with Landlord's sign
criteria (a
copy of which is attached hereto as EXHIBIT D), the Rules and
Regulations and
all Applicable Laws. Tenant shall be responsible to Landlord for
the
installation, use, or maintenance of said signs and any damage
caused thereby.
Tenant agrees to remove all of its signs prior to termination of
the Lease and
upon such removal to repair all damage incident to such
removal.
3.5
LANDLORD'S ACCESS.
Landlord shall be entitled during normal business hours and
upon
reasonable notice to Tenant (but no notice is required in
emergencies) to enter
the Premises to examine them and to make such repairs, alterations,
or
improvements thereto as Landlord is required by this Lease to make
or which
Landlord considers necessary or desirable. Tenant shall not unduly
obstruct any
pipes, conduits, or mechanical or other electrical equipment so as
to prevent
reasonable access thereto. Landlord shall exercise its rights under
this
section, to the extent possible in the circumstances, in such
manner so as to
reduce, if practical, interference with Tenant's use and enjoyment
of the
Premises. Landlord and its agents have the right to enter the
Premises during
normal business hours and upon reasonable notice to show them to
prospective
purchasers, lenders, or anyone having a prospective interest in the
Building,
and, during the last six months of the Term or any renewal thereof,
to show them
to prospective tenants. Landlord may place customary "For Sale" or
"For Lease"
signs on the Premises, Building or Park as Landlord deems
necessary. Landlord
will have the right at all times to enter the Premises in the event
of an
emergency affecting the Premises.
3.6 QUIET
POSSESSION.
If Tenant pays all Rent and fully performs all of its
obligations
under this Lease, Tenant shall be entitled to peaceful and quiet
enjoyment of
the Premises for the full Term without interruption or interference
by Landlord
or any person claiming through Landlord.
3.7
[Intentionally Deleted].
3.8
COVENANTS AND RESTRICTIONS.
Tenant hereby acknowledges and agrees that the Building, and
Tenant's occupancy thereof, is subject to certain declarations and
agreements
(the "DECLARATION"), which Declaration has been recorded among the
Public
Records of Miami-Dade County, Florida.
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3.9
PARKING.
Tenant shall have the exclusive use of all of the parking
spaces
associated with the Building, including, but not limited to, the
car and truck
trailer spaces depicted on the Site Plan attached hereto as EXHIBIT
A. All motor
vehicles (including all contents thereof) shall be parked in such
spaces at the
sole risk of Tenant, its employees, agents, invitees and licensees,
it being
expressly agreed and understood that Landlord has no duty to insure
any of said
motor vehicles (including the contents thereof), and that Landlord
is not
responsible for the protection and security of such vehicles, or
the contents
thereof. Nothing in this SECTION 3.9 shall exonerate Landlord for
damage to any
such vehicles or the contents thereof caused by Landlord or any of
it employees
or agents.
3.10
TENANT'S ACCESS.
Tenant shall have access to the Premises twenty-four (24) hours
per
day, seven (7) days per week, 365 days per year, subject to
reasonable security
measures and except in the event of an emergency, casualty, force
majeure or
similar event which causes Landlord to limit access to tenants.
4. TENANT ALTERATIONS AND IMPROVEMENTS.
4.1 TENANT
IMPROVEMENTS.
If any construction of tenant improvements is necessary for the
initial occupancy of the Premises, such construction will be
accomplished and
the cost of such construction will be borne by Landlord and/or
Tenant in
accordance with EXHIBIT E attached hereto (the "WORK LETTER").
Except as
expressly provided in this Lease, and except for any Punch List
Items (as
defined in the Work Letter), Tenant acknowledges and agrees that
Landlord has
not undertaken to perform any modification, alteration or
improvements to the
Premises, and, subject to Tenant's right to inspect the Premises
prior to taking
possession thereof and note any material defects in the Premises
(which defects
shall be repaired by Landlord within a reasonable period of time
thereafter),
Tenant further waives any defects (excluding latent defects) in the
Premises and
acknowledges and accepts (1) the Premises in their "AS IS"
condition, and as
suitable for the purpose for which they are leased, and (2) the
Park and every
part and appurtenance thereof as being in good and satisfactory
condition. If
any improvements, modifications or alterations, beyond those
specified in the
Work Letter are required for Tenant's initial occupancy of the
Premises,
