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 2901 SW 8th Street, Suite 204, Miami, Florida 33135 ("Landlord") and ALADDIN MANUFACTURING CORPORATION, a Delaware corporation, with its home office located at 160 South Industrial Boulevard, Calhoun, Georgia 30701 ("Tenant").
ARTICLE I
---------
DEMISE OF PREMISES
1.1 Premises. For and in consideration of the covenants and agreements
-------- 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
------------- 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 - ------------- 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 wells, 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
----------
APPROVALS; TENANT IMPROVEMENTS; SPECIFICATIONS/ACCESS
3
2.1 Approvals. Landlord shall be solely responsible, at Landlord's cost and
--------- 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
------------------- Date, Landlord shall complete the work to the Premises described in Exhibit "B"
----------- 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
------------------------------ (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
-----------
4
heretofore agreed to by Landlord and Tenant and shall be in good working order and repair as of the Commencement Date.
ARTICLE III
-----------
LEASE TERM
3.1 Initial Term. The initial term (herein sometimes referred to as the
------------ "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
-- 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 abate 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.
5
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
--------------------- 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
----------
6
RENT
4.1 Base Rent. Tenant covenants and agrees to pay Landlord at the above
--------- 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
----------- 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
----------- 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
------------ 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
---------
TAXES
5.1 Real Estate Taxes
-----------------
(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
7
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
------------------
(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
8
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%.
9
ARTICLE VI
----------
COMMON AREAS
6.1 Definition. "Common Areas" (or "Common Area") shall mean all
---------- 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,
------------------- 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
------- 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
------------------------- 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
10
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
--------- 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
11
(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
12
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
-----------
UTILITIES
7.1 Utilities. Landlord shall design the Building pursuant to the plans and
--------- 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.
13
ARTICLE VIII
------------
USE AND ASSIGNMENT
8.1 Use. The Premises may be used for warehousing, distribution, light
--- 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
------------------------- 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 unreasonab ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.