HomeMy WebLinkAboutR-94-0586J-94-610
7/15/94
RESOLUTION NO. 9 4 — 586
A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING
THE DOWNTOWN DEVELOPMENT AUTHORITY ("DDA") TO
EXECUTE IN SUBSTANTIALLY THE ATTACHED FORM, A
SUBLEASE AGREEMENT WITH INTRAEXPO, INC. FOR
THE FOURTH FLOOR OF THE FORMER JORDAN MARSH
BUILDING, LOCATED AT 1601 BISCAYNE BOULEVARD,
MIAMI, FLORIDA, AND AN OPERATING AGREEMENT IN
SUBSTANTIALLY THE ATTACHED FORM, WITH
INTRAEXPO, INC., BOTH DOCUMENTS RELATING TO
AND IN FURTHERANCE OF THE DEVELOPMENT AND
OPERATION OF AN INTERNATIONAL TRADE CENTER AT
SAID LOCATION.
WHEREAS, the Downtown Development Authority ("DDA") of the
City of Miami, Florida, is in receipt of a Two Million Five
Hundred Thousand Dollar ($2,500,000) grant from the Economic
Development Administration of the U.S. Department of Commerce;
and
WHEREAS, said grant is to be used for development of an
International Trade Center ("Center"); and
WHEREAS, the DDA has undergone and completed the Request For
Proposals process to select a developer/operator of said
International Trade Center (INTRAEXPO, Inc.); and
WHEREAS, the DDA now wishes to finalize a sublease agreement
with INTRAEXPO, Inc. for the fourth floor of the former Jordan
irff Gol0lassro
PrE 1:1VC111 or
J UN 71 (r 1,994
Rerohation No,
94- 586
i
Marsh Building located at 1601 Biscayne Boulevard, Miami,
Florida, and an operating agreement for the development and
operation of an International Trade Center for said space]
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The Downtown Development Authority is hereby
authorizedl1 to execute a sublease agreement, in substantially
the attached form, with INTRAEXPO, Inc. for the fourth floor of
the former Jordan Marsh Building located at 1601 Biscayne
Boulevard, Miami, Florida, in the Omni mall complex. Said
location is to be utilized as the operational site of an
International Trade Center.
Section 3. The Downtown Development Authority is also
hereby authorized to enter into an operating agreement, in
substantially the form attached, with INTRAEXPO, Inc., for the
development and operation of an International Trade Center for
the aforementioned space.
Section 4. This Resolution shall become effective
immediately upon its adoption.
1% The herein authorization is further subject to compliance
with all requirements that may be imposed by the City
Attorney, including but not limited to those prescribed by
applicable City Charter and Code provisions.
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INTERNATIONAL MERCHANDISE MART
SUBLEASE AND CONSENT TO SUBLEASE
THIS SUBLEASE AGREEMENT ("Lease") is made as of the
day of , 1994, by and between THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation
authorized to do business in the State of Florida ("Owner"),
DOWNTOWN DEVELOPMENT AUTHORITY, a Florida body corporate
("Sublessor"), and INTRAEXPO, INC., a Delaware corporation
authorized to do business in the State of Florida ("Sublessee").
RECITALS:
A. Sublessor and Owner have entered into a Lease Agreement
dated , 1994 (the "Master Lease") pursuant to
which Sublessor has leased from Owner the Premises described
therein and in paragraph 1 of this Lease. The Master Lease is
attached to this Lease as Attachment 1.
B. The Master Lease contemplates, and provides for the
subletting of the Premises to a third party, which shall be
responsible for the establishment and operation of an
international merchandise mart on the Premises (the "Project").
C. Sublessor and Sublessee are simultaneously herewith
executing an Operator Agreement which sets forth the agreement of
the parties with erspect to the establishment and operation of
the Project (the "Operator Agreement").
D. The leasing and improvement of the Premises and the
establishment and operation of the Project are all contemplated
by a Grant awarded by the United States Department of Commerce,
Economic Development Administration (EDA") to Sublessor for this
purpose (the "EDA Grant").
E. The execution of this Sublease is subject to Owner's
consent and Owner joins in its execution solely to evidence its
consent and its agreement to the provisions contained in Section
hereof.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
TERMS:
1. PREMISES; COMMON AREAS:
Sublessor leases to Sublessee and Sublessee leases from
Sublessor the premises in the Omni International Mall located at
1601 Biscayne Blvd., Miami, Florida 33132 (together with the
parking facilities, including those at the Garage, as hereinafter
defined, sometimes collectively referred to herein as the
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"Building") known by that certain floor number set forth in the
Basic Lease Information Rider (the "BLI Rider") attached to the
front of this Lease and incorporated into this Lease by this
reference, which space is more particularly shown on the floor
plan attached to the Master Lease as Exhibit "A" and by this
reference incorporated herein ("Premises"). The parties hereby
agree that the Premises contain the number of gross leasable
square feet set forth in the BLI Rider. In addition to the
Premises, Sublessee has the right to use, in common with others,
the common areas, as the same may be described from time to time,
but which shall always include the garage, the lobby, public
entrances, public stairways, public elevators and restrooms of
the Building. The common areas serving the Building, including
those referenced above, will at all times be subject to Owner's
exclusive control and management in accordance with the terms and
provisions of this Lease and the Master Lease.
2. LEASE TERM; LEASE DATE:
A. The lease term ("Lease Term") is for the period of
time set forth in the BLI Rider, commencing on the Lease
commencement date set forth in the BLI Rider ("Lease Commencement
Date") and ending on the Lease expiration date set forth in the
BLI Rider ("Expiration Date"). Sublessee's obligation to pay all
rent, including Base Rent, Overhead Rent and Additional Rent,
(collectively, "Rent"), as such terms are hereafter defined, will
commence on the rent commencement date set forth in the BLI Rider
("Rent Commencement Date").
3. RENT:
A. Base Rent. During the Lease Term, Sublessee will
pay as the base rent for the Premises ( "Base Rent") the amounts
set forth in the BLI Rider, with same being payable without
demand, setoff or deduction, in advance, on or before the first
day of each month, in equal monthly installments as set forth in
the BL•I Rider plus applicable sales taxes.
B. Overhead Rent. During the Lease Term, Sublessee
shall pay, as Overhead Rent ("OverRc6w-1q-Rent"), Tenant's share (as
hereinafter defined) of any increases in real estate taxes for
the Building over the amount of real estate taxes for the
Building for the Base Year.
Sublessee shall pay the Overhead Rent not later
than twenty (20) days following Sublessee's receipt of Owner's
statement, which shall contain a breakdown of the items included
therein and shall be accompanied by such documentation and
invoices as shall be reasonably necessary to document Owner's
calculations of Sublessee's obligation under this Section.
The amount of Overhead Rent shall be calculated on
the basis of the net amount of Real Estate Taxes shown in the
official Real Estate Tax bill, irrespective of the amount of
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94-- 5��
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actually paid by Owner for such year, whether as a result of a
protest or dispute or otherwise.
In the event the Real Estate Taxes for any year
are contested by Owner arid, as a result thereof, a different
amount is ultimately found to be payable, then the amount of
Overhead Rent shall be recalculated by and any deficiency or
overpayment of Overhead Rent shall be paid by Sublessee or
reimbursed by Owner, as the case may be, not later than twenty
(20) days following Sublessee's receipt of a revised statement
signed by Owner reflecting the deficiency or overpayment.
C. Additional Rent. Sublessee agrees to pay, as
Additional Rent, all charges relating to parking as set forth in
the BLI Rider (the "Parking Rent"), and all other sums payable by
Sublessee hereunder, including, specifically, the following:
(i) "Late Charges". Sublessee shall pay a
late charge on any payment of Rent, which is not received by
Owner within five (5) days following the date when same is due.
The Late Charge shall be an amount equal to interest accruing on
the outstanding payment at a rate equal to eighteen percent (18%)
per annum, from the date such payment is due until the date
payment is received by Owner.
(ii) "Sales or Use Tax". Sublessee shall pay to
Owner each month the amount of any sales tax, tax on rentals or
any other similar charges now existing or hereinafter imposed by
Florida law upon the privilege of leasing the Premises or based
upon the amount of Base Rent callected therefor.
D. Definition of Material Terms.
(a) The term "Real Estate Taxes" shall mean the
amount of the ad valorem taxes attributable to the Building as
shown in the official tax bill issued by the appropriate taxing
authority.
(b) The term "Tenant's Share" shall mean the
percentage set forth in the BLI Rider. The parties acknowledge
that Tenant's Share has been obtained by taking the gross
leasable area of the Premises, which is hereby stipulated for all
purposes to be the amount set forth in the BLI Rider, and
dividing such number by the total gross leasable area of the
Building, which is hereby stipulated for all purposes to be
square feet, and multiplying such quotient by 100.
In the event Tenant's Share is changed during a calendar year by
reason of a change in the net rentable area of the Premises,
Tenant's Share shall thereafter mean the result obtained by
dividing the new net rentable area of the Premises by
square feet and multiplying such quotient by 100
and for the purposes of paragraph 3B, Tenant's Share shall be
determined on the basis of the number, of days during such
calendar year applicable to each such Tenant's Share.
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(c) The term "Rent" shall mean the sum of the
Base Rent, the Overhead Rent, Additional Rent.
amt `d i C
F. Related Provisions; Payment of Rent.
(a) Unless otherwise directed by written notice
signed by Owner and Sublessor, all payments of Rent under this
Agreement shall be made directly to Owner.
(b) All sums due and payable pursuant to the
terms and provisions of this Lease shall be paid by Sublessee
without offset, demand or other credit, and shall be payable only
in lawful money of the United States of America which shall be
legal tender in payment of all debts and dues, public and
private, at the time of payment. All sums payable by Sublessee
hereunder by check shall be obtained against a financial
institution located in the United States of America. The Rent
shall be paid by Sublessee at the Building management office
located in the Building or elsewhere as designated by Owner
(subject to section (a) above) in writing to Sublessee.
(b) If Sublessee's possession of the Premises
commences on any day other than the first day of the month,
Sublessee shall occupy the Premises under the terms of this Lease
and the pro rata portion of the Rent shall be paid by Sublessee
to Sublessor; provided, however, that in such an event the Lease
Commencement Date, for the purposes of this Lease, shall be
deemed to be the first day of the month immediately following the
month in which possession is given.
(c) Sublessee hereby agrees that the Rent to the
extent it is, under the terms of this Lease, to be from time to
time computed by Owner shall be final and binding for all
purposes of this Lease unless, within twenty (20) days after
Owner provides Sublessee with written notice of the amount
thereof, Sublessee provides Owner and Sublessor with written
notice (i) disputing the mathematical accuracy of such amount
(the "Disputed Amount"), (ii) designating an attorney or
accountant, reasonably acceptable to Owner and Sublessor, and
appointed by Sublessee, at its sole cost and expense, to review
the mathematical accuracy of the Disputed Amount with Owner and
Sublessor and/or its designated representatives and (iii)
confirming that the Disputed Amount shall not be subject to
adjustment, and agreeing to pay all of Owner's costs and expenses
in connection with such review, including attorneys fees and
accountants fees, unless as a result thereof the Disputed Amount
is demonstrated to contain a mathematical error in excess of five
percent (5%) of the Disputed Amount. Sublessor hereby agrees, in
the event it receives such notice from Sublessee, to cooperate in
promptly completing areview of the disputed amount with Owner and
promptly refunding any excess portion of the Disputed Amount
received by Sublessor from Owner so long as such excess portion
exceeds five percent (5%) of the Disputed Amount. Nothing
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contained herein shall be deemed to excuse Sublessee's obligation
to pay Rent pending the resolution of a dispute.
4. USE:
Sublessee will use and occupy the Premises solely for
the operation of the business set forth in the BLI Rider and for
no other use whatsoever. Sublessee will not commit waste upon
the Premises nor suffer or permit the Premises or any part of
them to be used in any manner, or suffer or permit anything to be
done in or brought into or kept in the Premises or the Building,
which would: (i) violate any law or requirement of public
authorities, (ii) cause injury to the Building or any part
thereof, (iii) annoy or offend other tenants or their patrons or
interfere with the normal operations of HVAC, plumbing or other
mechanical or electrical. systems of the Building or the elevators
installed therein, (iv) constitute a public or private nuisance,
or (v) alter the appearance of the exterior of the Building or of
any portion of the interior other than the Premises pursuant to
the provisions of this Lease. Except as provided in Section 5
below and the Work Letter described herein Sublessee shall be
responsible for obtaining any special amendments to the
certificate of occupancy for the Premises and/or the Building and
any other governmental permits, authorizations or consents
required solely on account of Sublessee's use of the Premises.
5. POSSESSION; ACCEPTANCE OF PREMISES; SUBLESSOR'S AND
SUBLESSEE'S WORK:
Sublessor shall be responsible for improving the
Premises to the level of a "vanilla box" in order that on
delivery of possession the Premises will be ready for interior
partitioning system, interior finishes and other tenant
improvements. Improvements to be made to the Premises by
Sublessor and Sublessee are described in, and shall be made in
accordance with the provisions of, the Work Letter, a copy of
which is attached hereto as Exhibit "B" and, by this referrence,
is made a part of this Lease.
Sublessor shall deliver possession of the Premises to
Sublessee and sublessee shall accept the Premises upon completion
of Sublessor's work, as described in the Work Letter. The
issuance by the appropriate governmental authority of a temporary
certificate of occupancy for the Premises shall be conclusive
evidence, for this purpose, that Sublessor has completed its work
and Sublessor's failure to complete minor or insubstantial
details of construction, decoration or mechanical adjustments
shall not be considered a delay in delivery of the Premises.
Nothing contained herein, however, shall be construed to modify,
or excuse performance of, any of Sublessor's obligations under
the Work Letter. All improvements made to the Premises, which
are attached to or incorporated into the Premises, whether such
improvements are made by Sublessor or Sublessee, will become the
property of Owner upon termination of this Lease. The
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commencement of tenant improvements as described in the Work
Letter of possession by Sublessee will be deemed conclusive
evidence that Sublessee has accepted the Premises.
6. EDA GRANT --COVENANT OF PURPOSEL USE AND OWNERSHIP.
Sublessee acknowledges that the Premises are being
improved by Sublessor with the funds of a grant (the "Grant), in
the amount of Two Million Five Hundred Thousand and no/100
Dollars ($2,500,000.00) awarded by the United States Department
of Commerce, Economic Development Administration ("EDA") to
Sublessor, to construct the improvements for the establishment of
an international merchandise and expo center on the Premises (the
"Project"). The terms and conditions of the Grant are described
in Special Terms and Conditions of SSED Implementation Grant,
Project No.: 04-59-03979 (the "Grant Agreement") a copy of which
has been delivered to Sublessee, and in the Code of Federal
Regulations, Title 13, Part 314 (the "Regulations").
Sublessee acknowledges that the Grant Agreement (a)
imposes certain restrictions on the use, ownership, encumbering
and disposition of the Premises; (b) imposes certain obligations
in the event of an "unauthorized use" of the Premises (as defined
therein), and (c) requires the execution and recordation of
certain documents to evidence the acknowledgment of, and
agreement to, the restrictions imposed thereby.
In consideration of Sublessor's improvement of the
Premises with the Grant funds and the creation of the Project,
Sublessee covenants and agrees as follows:
(a) During the term of this Lease Sublessee shall not (i)
sell, lease, transfer, convey or mortgage all or any part of its
interest in the Premises, without the prior written approval of
the Assistant Secretary of EDA, nor shall it (ii) use, or permit
the Premises to be used for any purpose other than the Project,
as more specifically described in the Grant Agreement and the
Operator Agreement between Sublessor and Sublessee.
(b) Simultaneous with the execution of this Lease, it shall
execute a Covenant of Purpose, Use, and Ownership, substantially
in the form of the instrument attached hereto as "Exhibit C,"
stating the substance of the condition described in this Section.
7. PARKING:
A. General. Subleassee shall have the right to use
unassigned, nonexclusive parking spaces in the parking garage
attached to the Omni International Mall Complex ("Garage") for
the number of parking spaces set forth in the BLI Rider. Such
parking spaces may be used only by principals, employees,
participants and members of Sublessee. Sublessee will, subject
to Section 7B below, pay as Additional Rent, the parking rent
(plus tax) each month, in the amount set forth in the BLI Rider
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with respect to the Sublessee's parking spaces in the Garage. In
the event Sublessee fails to pay Parking Rent with respect to one
or more parking spaces, then Sublessee shall forfeit the use of
the parking space(s) for which it has failed to pay rent.
Sublessee understands that the reinstatement of its rights with
respect to the parking space(s) forfeited for failure to pay
Parking Rent is subject to the availability of such space in
Owner's discretion. Sublessee acknowledges that its guests and
visitors will be charged for parking at then current rates
(Sublessee may pay for such guest and visitor parking if it
elects as specified below).
B. Rates. The rates charged for guest or visitor
parking shall be the rates established for all guests and
visitors of the building, as such rates may be changed from time
to time. Sublessee will be billed for monthly parking charges
along with normal Rent billing and Sublessee may elect, by giving
notice to Owner, to have guest and visitor parking billed to the
Sublessee, at the same time.
C. Reservations. Sublessee acknowledges that Owner
has reserved the right to alter the methods used to control
parking and the right to establish such controls and rules and
regulations (such as parking stickers to be affixed to vehicles)
regarding parking as it may deem desirable. In this connection,
Owner has the right to tow or otherwise remove vehicles
improperly parked, blocking ingress or egress lanes, or violating
parking rules, at the expense of the offending tenant and/or
owner of the vehicle.
D. Conditions. Sublessee's right to use, and its
right to permit its principals and guests to use, the parking
facilities pursuant to this Lease are subject to the following
conditions: (i) No representations or warranties have been made
by any parties with respect to the parking area, the number of
spaces located therein or access thereto; (ii) Owner has reserved
the right to reduce the number of spaces in the parking area by
not more than ten percent (10%) of the then number of parking
area spaces in the parking area and/or change access thereto,
provided that some manner of reasonable access to the parking
area remains after such change; and either of the foregoing shall
not entitle Sublessee to any claim against Sublessor or Owner or
to any abatement of Rent (or any part thereof); (iii) There
exists no obligation to provide security or a parking lot
attendant and neither Sublessor nor Owner shall have any
liability on account of any loss or damage to any vehicle or the
contents thereof, Sublessee hereby agreeing to bear the risk of
loss for same; (iv) Sublessee, its agents, employees and
invitees, shall park their automobiles and other vehicles only
where and as designated from time to time by Owner within the
parking area; (v) if and when so requested by Owner, Sublessee
shall furnish the license numbers of any vehicles of Sublessee,
its agents and employees; and (vi) Sublessee may be charged
(and/or its employees, invitees and visitors) directly for the
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parking fee established by Owner (or its operator) from time to
time for the use of such parking area.
8. BUILDING SERVICES:
A. General. In general, the services set forth below
which are -to be provided by Owner, shall be at a service level
set, defined and regulated by Owner consistent with shopping
malls of similar quality to and in the same immediate geographic
area as the Building. During the Lease Term, the services shall
be provided during the regular business hours of 8:00 a.m. to
9:00 p.m.; Monday through Friday, and on Saturday and Sunday,
Noon to 5:00 p.m., except holidays generally recognized by state
and federal governments. The Building will be accessible to
Sublessee, its agents, servants, employees, contractors,
invitees, licensees, members or participants (collectively,
"Tenant's Agents") at all times twenty four (24) hours per day,
seven (7) days a week, fifty two (52) week per year,
("Merchandise Mart Hours").
(1) Janitorial Service:
Sublessee shall provide its own janitorial
services for the Premises, provided, however, that if these
services are provided by a third party contractor, said
contractor shall be bonded.
(2) Electricit
Sublessee shall pay for its own electric
power for the Premises. Sublessor shall install, for Sublessee's
use, a separate meter for the electrical use of the Premises.
(3) Signage
Sublessee shall have the right to install
building standard signage on the two (2) entrances to the
Premises and two (2) on the exterior of the Building (one on
Biscayne Boulevard and one on 15th Street) at Sublessee's sole
cost and expense. The signage shall comply with all applicable
governmental requirements and shall be subject to Landlord's
reasonable approval.
(4) HVAC Services:
Heating, ventilating and air conditioning services
("HVAC Services") for the common areas shall be provided by the
Owner during Business Hours. Sublessor shall install an HVAC
system for the Premises, in accordance with the terms of the Work
Letter and Sublessee shall pay for the HVAC electrical power
consumption for the Premises, which shall be separately metered.
(5) Water and Sewer:
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Owner pays for the cost of municipally supplied cold
water and sewer services for lavatory purposes.
(6) Elevator Service:
Owner provides both freight and passenger elevator
service during Merchandise Mart Hours.
(7) Security:
Securitv for the Building and the Garage is provided by
the Owner. Sublessor does not make any representation with
regard to the continuity of the security services nor to its
quality. Sublessee shallk abide by all rules and regulations
promulgated by Owner or Sublessor in regard to the security
services.
B. Interruption of Services. It is understood and
agreed that neither Sublessor nor Owner warrant that any of the
services referred to above, or any other services to be provided
to Sublessee hereunder will be free from interruption. Sublessee
acknowledges that any one or more of such services may be
suspended by reason of accident or repairs, alterations or
improvements necessary to be made, or by strikes or lockouts, or
by reason of operation of law, or other causes beyond the control
of Owner or Sublessor. No such interruption or discontinuance of
service will be deemed an eviction or a disturbance of
Sublessee's use and possession of the' Premises or any part
thereof, or render Owner or Sublessor liable to Sublessee for
damages or abatement of Rent or relieve Sublessee from the
responsibility of performing any of Owner's or Sublessor's
obligations under this Lease.
9. REPAIRS AND MAINTENANCE:
During the Lease Term, Sublessee shall repair and
maintain (and, at Sublessee's option, replace) the following at
Sublessee's expense:
(1) The interior portion of the demising walls,
the interior partition walls of the Premises and their wall -
covering, and the entry door to the Premises.
(2) The electrical and mechanical systems which
have been installed for the exclusive use and benefit of
Sublessee, including the HVAC system that has been installed by
Sublessor for the Premises.
(3) The floor covering of the Premises, including
VAT flooring, ceramic tiles, marble, wood flooring, or similar
coverings.
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(4) All cabinets and millwork (regardless of
ownership) so long as said cabinets and millwork are for the
exclusive use and benefit of Sublessee.
(5) All other personal property, improvements or
fixtures in the Premises, including, but not limited to (a)
ceiling tiles and ceiling grid, (b) molding or other woodwork and
panelling, (c) light fixtures and bulbs, (d) draperies, blinds
and wallhangings, (e) glass partition walls, (f) water closets
and kitchen areas, (g) doors and locksets, and (h) vaults, safes,
or secured areas.
10. TENANT'S ALTERATIONS:
A. General. During the Lease Term, Sublessee will make
no structural nor any major alteration, addition or improvement
in or to the Premises, without the prior written consent of
Sublessor, which consent shall not be unreasonably withheld or
delayed. For this purpose a "major alteration" shall be any work
affecting the structural components of the Building, or any other
work involving an expenditure in excess of $10,000.00. Sublessee
agrees that "major alterations" are also subject to Owner's
approval and a denial of Owner's consent with regard to a
proposed alteration shall be binding on Sublessee.
B. Alterations in the Normal Course of Sublessee's
Business. Nothing contained herein shall prohibit purely
cosmetic alterations nor movable partitions in the normal course
of Sublessee's business.
11. OWNER'S ADDITIONS AND ALTERATIONS:
Owner has retained the right to make changes in and
about the Building, garages and parking areas, including, but not
limited to, signs, entrances, address or name of Building. Such
changes may include, but not be limited to, rehabilitation,
redecoration, refurbishment and re£ixturing of the Building and
expansion of or structural changes to the Building. The right of
Sublessee to quiet enjoyment and peaceful possession given under
the Lease will not be deemed breached or interfered with by
reason of Owner's actions pursuant to this paragraph so long as
such actions do not materially deprive Sublessee of its use and
enjoyment of the Premises nor materially affect Sublessee's
business.
12. ASSIGNMENT AND SUBLETTING:
The Premises are hereby leased to Sublessee only for
the purposes of the Project and the Sublessee has been selected
to occupy and operate the Premises, through a selection process,
based on Sublessee's experience and representations.
Accordingly, any assignemnt, transfer, or encumbrance of this
Lease or any interest therein or in the Premises or any part
thereof, whether intentionally or by operation of law is
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prohibited and any such transfer, assignment or encumbrance or
any attempt at same is a material default hereunder and is null,
void and of no force or effect whatsoever. Any change to the
management or ownership structure of Sublessee or any
disposition(s) of any of the interests in by sale, assignment,
operation of law or otherwise, or any change in the power to
vote the interests therein, will be treated as a prohibited
assignment of this Lease
Notwithstanding the foregoing, Sublessor acknowledges that
inherent in the operation of an International Merchandise,
Exposition and Trade Center is the rental or use or occupancy of
space within the Premises to the "members" or "participants" of
the Project (as more specifically described in the Operator's
Proposal) and such practice, in the usual course of Sublessee's
business shall not constitute a prohibited assignment.
13. SUBLESSEE'S INSURANCE COVERAGE:
A. General. Sublessee agrees that, at all times during
the Lease Term (as well as prior and subsequent thereto if
Sublesseeor any of Sublessee's Agents should then use or occupy
any portion of the Premises), it will keep in force, with an
insurance company licensed to do business in the State of
Florida, and at least A -rated in the most current addition of
Best's Insurance Reports and otherwise acceptable to Sublessor
and Owner, (i) without deductible, comprehensive general
liability insurance, including coverage for bodily injury and
death, property damage and personal injury and contractual
liability as referred to below, in the amount of not less than
the amount set forth in the BLI Rider, combined single limit per
occurrence for injury (or death) and damages to property, (ii)
with deductible of not more than Five Thousand Dollars
($5,000.00), insurance on an "All Risk or Physical Loss" basis,
including sprinkler leakage, vandalism, malicious mischief, fire
and extended coverage, covering all improvements to the Premises,
fixtures, furnishings, removable floor coverings, equipment,
signs and all other decoration or stock in trade, in the amounts
of not less than the full replacement value thereof, and (iii)
workmen's compensation and employer's liability insurance, if
required by statute. Such policies will: (i) include Sublessor
and Owner and such other parties as each may reasonably designate
as additional insured s, (ii) be considered primary insurance,
and (iii) provide that it may not be cancelled or changed without
at least thirty (30) days prior written notice from the company
providing such insurance to each party insured thereunder.
Sublessee will also maintain throughout the Lease Term
worker's compensation insurance with not less than the maximum
statutory limits of coverage.
B. Evidence. The insurance coverages to be provided by
Sublessee will be for a period of not less than one year. At
least fifteen (15) days prior to the Lease Commencement Date,
Sublessee will deliver to Sublessor original certificates of all
-11- 94- 586
such paid up insurance; thereafter, at least. fifteen (15) days
prior to the expiration of any policy Sublessee will deliver to
Sublessor such original certificates as will evidence a paid up
renewal or new policy to take the place of the one expiring.
C. Subrogation. Sublessor agrees to look first to
any insurance in its favor before making any claim against
Sublessee for recovery for loss or damage resulting from fire or
other casualty.
D. Exclusions. Sublessee acknowledges that the
insurance policy or policies maintained by Owner do not insure
improvements, furniture, furnishings, trade fixtures, equipment
installed in or made to the Premises by or for Sublessee, and
Sublessee agrees that Sublessee will be obligated to promptly
repair any damage thereto or replace the same.
14. DAMAGE OR DESTRUCTION BY CASUALTY:
If Sublessor's rights under the Master Lease are
terminated as a result of damage or destruction by casualty, then
this Lease shall automatically terminate on the effective date of
termination of the Master Lease and Sublessee shall be entitled
to a refund of any unearned portion of Rent received by Sublessor
as a result of such termination.
In the event the Premises are restored by Owner and the
Master Lease is not terminated, then Rent during the period of
restoration shall be adjusted and/or abated to the extent, in the
amount and for the duration of any rent abatements or adjustments
applied to Sublessor under the Master Lease.
Neither Owner nor Sublessor shall be liable for any
damage to, or any inconvenience or interrupation of business of,
Sublessee or Sublessee's agents under this Section.
15. CONDEMNATION AND EMINENT DOMAIN.
If the Master Lease is terminated as a result of any
taking or the exercise of any powers of condemnation or eminent
domain, then this Lease shall automatically terminate on the
effective date of termination of the Master_ Lease.
In the event the Master Lease is not terminated and the
Owner restores the unaffected portion of the Building or Premises
in accordance with the terms of the Master Lease, then the Rent
payable hereunder shall be adjusted to the extent and in the same
1 amnner as Rent is adjusted under the Master Lease.
Sublessee agrees that it shall have no claim whatsoever
to the condemnation award.
16. COMPLIANCE WITH LAWS AND PROCEDURES: {
i
i
-12- 94- 586
A. Compliance. Sublessee, at its sole cost, will
promptly comply with all applicable laws, guidelines, rules,
regulations and requirements, whether of federal, state, or local
origin, applicable to the Premises and the Project, including,
but not limited to, the Americans with Disabilities Act, 42
U.S.C. Section 12101 et seq, and those for the correction,
.prevention and abatement of nuisance, unsafe conditions, or
other grievances arising from or pertaining to the use or
occupancy of the Premises. Sublessee acknowledges that (i) the
Premises and the parking facilities may contain potentially
hazardous substances, including, but not limited to, asbestos
containing materials, radon gas, mineral fibers, and other like
materials (all of such materials are referred to herein as
"Environmental Concerns"); (ii) Sublessee has been advised that
the Premises and the Building do contain asbestos containing
materials and (iii) Sublessor shall remove asbestos containing
materials as shown in the Work Letter. Accordingly, Sublessee
agrees that Sublessee and Sublessee's Agents shall comply with
all operation and maintenance programs and guidelines implemented
or promulgated from time to time by Owner or its consultants,
including, but not limited to, those matters set forth in
Subsections B and C below, in order to reduce the risk to
Sublessee, Sublessee's Agents or any other tenants of the
Building of injury from Environmental Concerns.
B. Notice Prior to Work. Sublessee shall provide
fifteen (15) days notice to Owner and Sublessor prior to the
performance by Sublessee, Sublessee's A ents or contractors of
any structural repairs, renovation and%or maintenance, to the
Premises. Such notice shall include a detailed description of
the work contemplated. Sublessee shall not perform, or cause to
be performed, any such repair, renovation and/or maintenance
without obtaining all required permits and governmental approvals
and without the written consent of Owner and Sublessor. All
repair, renovation and/or maintenance work must be performed in
accordance with the reasonable terms of Owner's consent.
C. Asbestos Removal. Prior to the Lease Commencement
Date, the asbestos located in the Premises shall have been
removed by Owner or by Sublessor at Sublessors' expense.
D. Radon. In accordance with Florida Law, the
following disclosure is hereby made:
RADON GAS: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present
health risk to persons who are exposed to it over
time. Levels of radon that exceed Federal and
State Guidelines have been found in buildings in
Florida. Additional information regarding radon
and radon testing may be obtained from your county
public health unit.
94- 586
-13-
CRAFT
17. RIGHT OF ENTRY:
Sublessor and their respective agents will have the
right to enter the Premises during reasonable hours, and after
reasonable notice, to make necessary repairs to the Premises. In
the event of an emergency, Owner or their respective agents may
enter the Premises at any time, without notice, to appraise and
correct the emergency condition. Said right of entry will, after
reasonable notice, likewise exist for the purpose of removing
placards, signs, fixtures, alterations, or additions which do not
conform to this Lease. Sublessor and their respective agents
will have the right, after reasonable notice, to exhibit the
Premises to prospective tenants within one hundred and eighty
days (180) before the Expiration Date of the Lease.
18. DEFAULT:
A. Events of Default: The occurrence of any one of
the following, shall constitute an Event of Default by Sublessee:
(1) The occurrence of a default under the Operator's
Agreement; or
(2) Sublessee's failure to make any payment of Rent (except
for failure to pay Parking Rent which shall not
constitute a default but will terminate Sublessee's
right to use the parking spaces for which Parking Rent
has not been paid) when due and such failure continues
for a period of five (5) days; or
(3) Sublessee vacates, abandons or surrenders all or any
part of the Premises prior to the Expiration Date; or
(4) Sublessee fails to perform or comply with a material
term or condition of this Lease; or
(5) The attachment, execution or other judicial seizure of
all or substantially all of Sublessee's assets located
at the Premises, or of Tenant's interest in this Lease
(6) Sublessee files a voluntary petition in bankruptcy,
reorganization or arrangement, is adjudicated bankrupt,
or makes an assignment for the benefit of creditors or
files any petition for similar relief under any present
or future statute, law or regulation relating to relief
of debtors; or
(7) Sublessee has an involuntary petition in bankruptcy,
reorganization or arrangement filed against it and such
proceeding if not dismissal within ninety (90) days
after the commencement of any such action; or
(8) Sublessee is dispossessed from the Premises (other than
by Sublessor) by process of law or otherwise; or
-14- 9A- 586
(9) Sublessee holds over the Premises after the Expiration
Date without Sublessor's prior written consent, which
may be withheld in Sublessor's sole discretion; or
(10) Sublessee violates any of the covenants or restrictions
set forth in the rules and regulations which may, from
time to time, be promulgated by Owner with reference to
the Premises, or any portion thereof, or to the
Building,
ems-- - -ee = - - - = -• 1 �_.
Qgan Agreement; or
(11) The use of the Premises for retail sales, or any other
prohibited use of the Premises; or
(12) The giving of notice by the guarantor of the rent
guaranty (described in paragraph 23 below) of its
intent not to renew the rent guaranty, unless, prior to
the termination of the guaranty Sublessee provides to
Sublessor a rent guaranty satisfactory to Sublessor, in
Sublessor's sole discretion.
� r .�)
'In the event of a default under this Lease, Sublessor may
pursue the remedies provided in Section 19 of this Lease.
B. Sublesser's Grace Period. Except for defaults
under subsection (2), (1g) and (13), sublessee shall have a
period of thirty (30) days to cure a default under this Lease
after receipt of notice from Sublessor or Owner specifying the
nature of such default. This grace period shall be extended (as
may be reasonably required) if the default is of a nature that it
cannot be completely cured within said thirty (30) period and
steps have been diligently commenced and continuously pursued in
good faith by Sublessee to cure or remedy the default within such
thirty (30) day period. If the default is not cured after the
expiration of the grace period, then Sublessor may pursue
remedies provided in Section 19 of this Lease. Sublessee agrees
that neither Sublessor nor Owner is required to give notice of,
and there shall be no grace period with respect to, default under
Sections 2, 1% and 13 above and accordingly, the occurence of any
such defaults will grant Sublessor all remedies provided in
Section 19 of this Lease.
C. Sublessor's Default. If Sublessee asserts that
Sublessor has failed to meet any of its obligations under this
Lease, Sublessee shall provide written notice to Sublessor and
Owner specifying t.ie alleged failure to perform ("Notice of
Default"). Sublessor shall have a period of thirty (30) days
after receipt of the Notice of Default in which to cure any non-
performance by Sublessor. This grace period shall be extended if
the non-performance is of a nature that it cannot be completely
cured within said thirty (30) day period and steps have been
diligently commenced and continuously pursued in good faith by
Sublessor or Owner to cure or remedy the non-performance within
-15- 94- 586
such thirty (30) day period. If the non-performance is not cured
after the grace period, then Subl(.;sor shall be in default under
this Lease.
19. SUBLESSOR'S REMEDIES FOR SUBL,ESSEE'S DEFAULT.
A. Termination of Lease. Sublessor may terminate this
Lease upon the occurrence of an event of default which is not
cured within the applicable grace period. Should Sublessor elect
to terminate this Lease it shall give Sublessee written notice of
its intent to terminate the Lease at a date not earlier than ten
(10) days after Sublessee's receipt of Sublessor's notice (the
"Effective Termination Date"). The Lease shall be deemed
terminated on the Effective Termination Date unless, prior to
that date, Sublessee has cured all of the defaults. Sublessor
shall have the right to immediately terminate the Lease, without
notice or opportunity to cure in the event that the Operator
Agreement or the Master Lease is terminated. Upon termination of
the Lease, Sublessee agrees that Sublessor shall have immediate
right of possession of the Premises.
C. Other Remedies. To the extent that there is no
conflict with any other provisions of this Lease, and in addition
to other remedies provided by law, Sublessor shall have, in the
event of a Bankruptcy related default, the additional remedies
described in Section 33 below.
20. LIENS:
A. General. In accordance with the applicable
provisions of the Florida Mechanic's Lien Law and specifically
Florida Statutes, Section 713.10, no interest of Owner or
Sublessor in the Premises, or in the underlying land or Building
of which the Premises are a part shall be subject to any liens
for improvements made by Sublessee or caused to be made by
Sublessee hereunder. Sublessee agrees to notify the contractor
making any improvements to the Premises of this provision
exculpating Owner's and Sublessor's liability for such liens
prior to the commencement of any work.
B. Default. Notwithstanding the foregoing, if
any mechanic's lien or other lien, attachment, judgment,
execution, writ, charge or encumbrance is filed against the
Building or the Premises or this leasehold, or any fixtures or
improvements therein or thereto, as a result of any work, action
or inaction done by or at the direction of Sublessee or any of
Sublessee's Agents, Sublessee will discharge same of record
within thirty (30) days after the filing thereof, failing which
Sublessee will be in default under this Lease. In such event,
without waiving Sublessee's default, Sublessor, in addition to
all other available rights and remedies, without further notice,
may discharge the same of record by payment, bonding or
otherwise, as Sublessor may elect, and upon request Sublessee
will reimburse Sublessor for all costs and expenses so incurred
by Sublessor.
-16- 94-- 586
eAFT
21. NOTICES:
Notices to Sublessee under this Lease (as well as the
required copies thereof) will be addressed to Sublessee (and its
agents) and mailed or delivered to the address set forth for
Sublessee in the BLI Rider. Notices to Sublessor under this
Lease (as well as the required copies thereof) will be addressed
to Sublessor (and .its agents) and mailed or delivered to the
address set forth in the BLS Rider. Notices to Owner under this
Lease (which shall also be simultaneously mailed or delivered to
Sublessor) shall be mailed or delivered to the address set forth
in the BLI Rider. All notices under this Lease will be
personally delivered or given by registered or certified mail,
return receipt requested. Notices delivered personally will be
deemed to have been received as of the date of delivery and
notices given by mail will be deemed to have been received forty-
eight (48) hours after the date said properly addressed notice
is placed in the mail in accordance with the foregoing. Each
party may change its address from time to time by written notice
given to the other as specified above.
22. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION:
AND NON -DISTURBANCE.
Sublessee agrees, within five (5) days after receipt of
Sublessor's notice, to execute and deliver to Sublessor, Owner,
or its mortgagee or designee such instruments as Sublessor,
Owner, or its mortgagee may reasonably require, certifying the
amount of the security deposit, if any, and whether this Lease is
in full force and effect, and listing any modifications. The
estoppel certificate will also contain such other information as
Sublessor, Owner or its designee may reasonably request. This
Lease is and at all times will be subject and subordinate to the
Master Lease and all present and future mortgages or ground
leases which may affect the Building and/or the parking
garage(s), and to all recastings, renewals, modifications,
consolidations, replacements, and extensions of any such
mortgage(s), and to all increases and voluntary and involuntary
advances made thereunder. The foregoing will be self -operative
and no further instrument of subordination will be required.
23. SECURITY DEPOSIT.
Sublessor hereby acknowledges receipt of a Security
Deposit in the form of a Rent Guaranty (the "Guaranty"), copy of
which is attached hereto as Exhibit Sublessee hereby
consents to Sublessor's assignment of its rights under the
Guaranty to the Owner or to any other party and agrees, as
Sublessor'r request, to do all things and perform all acts
reasonably required to complete or perfect the assignment.
24.
SURRERNDER OF PREMISES: MOLDING OVER.
-17- 94- 586
A. Surrender. Sublessee agrees to surrender the
Premises to Sublessor on the Expiration Date (or sooner
termination of the Lease Term pursuant to other applicable
provisions hereof) in as good condition as they were at the
commencement of Sublessee's occupancy, ordinary wear and tear,
and damage by fire and windstorm excepted. At the expiration or
termination of the Lease Term, Sublessee shall deliver to
Sublessor all keys to the Premises and make known to Sublessor
the location and combination of all safes, locks and similar
items.
B. Restoration. In all events, Sublessee will
promptly restore all damage caused in connection with any removal
of Sublessee's personal property. Sublessee will pay to
Sublessor, upon request, all damages that Sublessor may suffer on
account of Sublessee's failure to surrender possession as and
when aforesaid.
C. Removal. Upon expiration of the Lease Term,
Sublessee will not be required to remove from the Premises
Building standard items installed by Sublessor or other
improvements or fixtures which are attached to the Premises or
which, if removed could damage the Premises.
D. Holdover. Without limiting Sublessor's rights and
remedies, if Sublessee holds over in possession of the Premises
beyond the end of the Lease Term, during the holdover period the
Rent will be double the amount of the Rent due and payable for
the last month of the Lease Term.
E. No Surrender. No offer of surrender of the
Premises, by delivery to Sublessor or its agent of keys to the
Premises or otherwise, will be binding on Sublessor unless
accepted by Sublessor, in writing, specifying the effective
surrender of the Premises. At the expiration or termination of
the Lease Term, Sublessee shall deliver to Sublessor all keys to
the Premises and make known to Sublessor the location and
combinations of all locks, safes and similar items. No receipt
of money by Sublessor from Sublessee after the Expiration Date
(or sooner termination) shall reinstate, continue or extend the
Lease Term, unless Sublessor specifically agrees to same in
writing signed by Sublessor at the time such payment is made by
Sublessee.
25. NO WAIVER; CUMULATIVE REMEDIES:
A. No Waiver. No waiver of any provision of this
Lease by either party will be deemed to imply or constitute a
further waiver by such party of the same or any other provision
hereof. The rights and remedies of Sublessor under this Lease or
otherwise are cumulative and are not intended to be exclusive and
the use of one will not be taken to exclude or waive the use of
another, and Landlord will be entitled to pursue all rights and
-18- 94- 586
remedies available to landlords under the laws of the State of
Florida.
26. WAIVER OF TRIAL BY JURY:
To the extent permitted by law, the Parties hereby
waive the right to a jury trial.
27. RULES AND REGULATIONS:
Sublessee agrees to abide by all rules and regulations
attached hereto as Exhibit "D" and incorporated herein by this
reference as they may be amended from time to time.
28. SUCCESSORS AND ASSIGNS:
This Lease will be binding upon and inure to the
benefit of the respective heirs, personal and legal
representatives successors and permitted assigns of the parties
hereto.
29. OUIET ENJOYMENT:
In accordance with and subject to the terms and
provisions of this Lease, Sublessor warrants that it has full
right to execute and to perform under this Lease and to grant the
estate demised and that Sublessee, upon Sublessee's payment of
the required Rent and performing of all of the terms, conditions,
covenants, and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises during
the full Lease Term.
30. ENTIRE AGREEMENT:
This Lease, together with the BLI Rider, exhibits,
schedules, addenda and guaranties (as the case may be) fully
incorporated into this Lease by this reference, contains the
entire agreement between the parties hereto regarding the subject
matters referenced herein and supersedes all prior oral and
written agreements between them regarding such matters. This
Lease may be modified only by an agreement in writing dated and
signed by Sublessor and Sublessee after the date hereof.
31. HAZARDOUS 14ATERIALS:
Sublessee shall, at its own expense, at all. times and
in all respects comply with all federal, state and local laws,
statutes, ordinances and regulations, rules, rulings, policies,
orders and administrative actions and orders ("Hazardous
Materials Laws"), including, without limitation, any Hazardous
Materials Laws relating to industrial hygiene, environmental
protection or the use, analysis, generation, manufacture,
-19- 94- 586
storage, disposal or transportation of any oil, flammable
explosives, asbestos, urea formaldehyde, radioactive materials
or waste, infectious waste, or other hazardous, toxic,
contaminated or polluting materials, substances or wastes,
including, without limitation, any "hazardous substances,"
"hazardous wastes," "hazardous materials" or "toxic substances"
under any such laws, ordinances or regulations (collectively,
"Hazardous Materials"). Sublessee shall, at its own expense,
procure, maintain in effect and comply with all conditions of any
and all permits, licenses and other governmental and regulatory
approvals relating to the presence of Hazardous Materials within,
on, under or about the Premises required for Sublessee's use of
any Hazardous Materials in or about the Premises in conformity
with all applicable Hazardous Materials Laws and prudent industry
practices regarding management of such Hazardous Materials.
Sublessor recognizes and agrees that Sublessee may use materials
in normal quantities that are applicable to general office use
and that such use by Sublc7,see shall not be deemed a violation of
this Section, so long as the levels are not in violation of any
Hazardous Materials Laws. Upon termination or expiration of the
Lease, Sublessee shall, at its own expense, cause all Hazardous
Materials placed in or about the Premises by Sublessee or at
Sublessee's direction to be removed from the Premises and
Building Common Area and transported for use storage or disposal
in accordance and compliance with all applicable Hazardous
Materials Laws. Sublessor acknowledges that it is not the intent
of this Article to prohibit Sublessee from operating its business
as described in this Lease. Sublessee may operate its business
according to the custom of the industry so long as the use or
presence of Hazardous Materials is strictly and properly
monitored according to all applicable governmental requirements.
32. BANKRUPTCY PROVISIONS.
A. Event of Bankruptcy. If this Lease is assigned to
any person or entity pursuant to the provisions of the United
States Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), any and all monies or other consideration
payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Sublessor, shall be and
remain the exclusive property of Sublessor, and shall not
constitute the property of Sublessee or of the estate of
Sublessee within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Sublessor's property
under this Section not paid or delivered to Sublessor shall be
held in trust for the benefit of Sublessor and shall be promptly
paid or delivered to Sublessor. Any person or entity to which
this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on
and after the date of such assignment.
B. Additional Remedies. In addition to any rights or
remedies herein before or hereinafter conferred upon Sublessor
-20- 9 a- 586
under the terms of this Lease, the following remedies and
provisions shall specifically apply in the event Sublessee
engages in any one or more of the acts contemplated by the
provisions of Section (4), (5), (6) or (7) of this Lease:
(1) In all events, any receiver or trustee in
bankruptcy shall either expressly assume or reject this Lease
within sixty (60) days following the entry of an "Order for
Relief" or within such earlier time as may be provided by
applicable law.
(2) In the event of an assumption of this Lease
by a debtor or by a trustee, such debtor or trustee shall within
fifteen (15) days after such assumption (i) cure any default or
provide adequate assurance that defaults will be promptly cured;
(ii) compensate Sublessor for actual pecuniary loss or provide
adequate assurance that compensation will be made for actual
monetary loss, including, but not limited to, all attorneys, fees
and costs incurred by Sublessor resulting from any such
proceedings; and (iii) provide adequate assurance of future
performance.
(3) Where a default exists under this Lease, the
trustee or debtor assuming this Lease may not require Sublessor
to provide services or supplies incidental to this Lease before
its assumption by such trustee or debtor, unless Sublessor is
compensated under the terms of this Lease for such services and
supplies provided before the assumption of such Lease.
(4) The debtor or trustee may only assign this
Lease if (i) it is assumed and the assignee agrees to be bound by
this Lease, (ii) adequate assurance of future performance by the
assignee is provided, whether or not there has been a default
under this Lease, and (i.ii) the debtor or trustee has received
Sublessor's prior written consent pursuant to the provisions of
this Lease. Any consideration paid by any assignee in excess of
the rental reserved in this Lease shall be the sole property of,
and paid to, Sublessor.
I
(5) Sublessor shall be entitled to the fair
{ market value for the Premises and the services provided by
i Sublessor (but in no event less than the rental reserved in this
( Lease) subsequent to the commencement of a bankruptcy event.
f (6) Any security deposit given by Sublessee to
Sublessor to secure the future performance by Sublessee of all or
any of the terms and conditions of this Lease shall be
automatically transferred to Sublessor upon the entry of an
"Order of Relief".
i (7) The parties agree that Sublessor is entitled
to adequate assurance of future performance of the terms and
provisions of this Lease in the event of an assignment under the
i provisions of the Bankruptcy Code. For purposes of any such
f
I -21- 94- 586
t ^' C ;'AFT
{ .
^1 5` i
assumption or assignment of this Lease, the parties agree that
the term "adequate assurance" shall include, without limitation,
at least the following: (i), any proposed assignee must have, as
demonstrated to Sublessor's satisfaction, a net worth (as defined
in accordance with generally accepted accounting principles
consistently applied) in an amount sufficient to assure that the
proposed assignee will have the resources to meet the financial
responsibilities under this Lease, including the payment of all
Rent; the financial condition and resources of Sublessee are
material inducements to Sublessor entering into this Lease; (ii)
any proposed assignee must have engaged in the permitted use
described in the BLI Rider for at least five (5) years prior to
any such proposed assignment, the parties hereby acknowledging
that in entering into this Lease, Sublessor considered
extensively Sublessee's permitted use and determined that such
permitted business would add substantially to the tenant balance
in the Project, and were t not for Sublessee's agreement to
operate only Sublessee's permitted business on the Premises,
Sublessor would not have entered into this Lease, and that
Sublessor's operation of the Project will be materially impaired
if a trustee in bankruptcy or any assignee of this Lease operates
any business other than Sublessee.'s permitted business; (iii) any
assumption of this .Lease by a proposed assignee shall not
adversely iffect Sublessor's relationship with any of the
remaining tenants in the Project taking into consideration any
and all other "use" clauses and/or "exclusivity" clauses which
may then exist under their leases with Sublessor; and (iv) any
proposed assignee must not be engaged in any business or activity
which it will conduct on the Premises and which will subject the
Premises to contamination by any Hazardous Materials.
33. RIGHT OF FIRST_
Provided that the Sublessee is not in default under
this Lease, the Sublessor hereby grants the Sublessee the right
of first offer to lease the fifth floor of the Building on the
same terms and conditions, and to the extent that such right is
available to Sublessor under the Master Lease.
34. MISCELLANEOUS:
A. If any term or condition of this Lease or the
application thereof to any person or circumstance is, to any
extent, invalid or unenforceable, the remainder of this Lease, or
the application of such term or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, is not to be affected thereby and each term and
condition of this Lease is to be valid and enforceable to the
fullest extent permitted by law. This Lease will be construed in
accordance with the laws of the State of Florida and the venue
for any litigation shall be Dade County, Florida.
B. In any litigation arising out of or in connection
with this Lease, the prevailing party shall be entitled to have
-22- 94- 586
' 'rig `1J►11�1
jI'T
its court costs and reasonable attorneys' fees paid through all
appellate levels.
C. Submission of this Lease to Sublessee does not
constitute an offer, and this Lease becomes effective only upon
execution and delivery by both Sublessor and Sublessee.
D. Sublessee acknowledges that it has not relied upon
any statement, representation, prior or contemporaneous written
or oral promises, agreements or warranties, except such as are
expressed herein.
E. Sublessee will pay before delinquency all taxes
assessed during the Lease Term against any occupancy interest in
the Premises or personal property of any kind owned by or placed
in, upon or about the Premises by Tenant.
F. If Sublessee, with Sublessor's consent, occupies
the Premises or any part thereof prior to the beginning of the
Lease Term, all provisions of this Lease will be in full force
and effect commencing upon such occupancy, except that the
payment of Base Rent shall nonetheless commence of the Rent
Commencement Date as specified in the BLI Rider.
G. Each party represents and warrants that it has not
dealt with any agent or broker in connection with this
transaction except for the agents or brokers specifically set
forth in the BLI Rider with respect to each Sublessor and
Sublessee. If either parties, representations and warranties
prove to be untrue, such party will indemnify the other party
against all resulting liabilities, costs, expenses, claims,
demands and causes of action, including reasonable attorneys,
fees and costs through all appellate actions and proceedings, if
any. The foregoing will survive the end of the Lease Term.
H. Nothing contained in this Lease shall be deemed by
the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer
or any association between Sublessor and Sublessee, it being
expressly understood and agreed that neither the method of
fcomputation of Rent nor any other provisions contained in this
Lease nor any act of the parties hereto shall be deemed to create
any relationship between Sublessor and Sublessee other than the
relationship of landlord and tenant.
I. Whenever in this Lease the context allows, the
word "including" will be deemed to mean "including without
limitation". The headings of articles, sections or paragraphs
are for convenience only and shall not be relevant for purposes
of interpretation of the provisions of this Lease.
J. This Lease does not create, nor will Sublessee
have any express or implied easement for or other rights to air,
light or view over or about the Building or any part thereof.
i
-23- 94- 586
�,-3AFT
K. Any acts to be performed by Sublessor under or in
connection with this Lease may be delegated by Sublessor to its
managing agent or other authorized person or firm.
L. It is acknowledged that each of the parties hereto
has been fully represented by legal counsel and that each of such
legal counsel has contributed substantially to the content of
this Lease. Accordingly, this Lease shall not be more strictly
construed against either party hereto by reason of the fact that
one party may have drafted or prepared any or all of the terms
and provisions hereof.
M. If more than one person or entity is named herein
as Sublessee, their liability hereunder will be joint and
several.
N. Sublessee (a) represents and warrants that this
Lease has been duly authorized, executed and delivered by and on
its behalf and constitutes its valid and binding agreement in
accordance with the terms hereof and (b) Sublessee shall deliver
to Sublessor, or its agent, concurrently with the delivery of
this Lease, certified resolutions of its board of directors (and
shareholders, if required) authorizing Sublessee's execution and
delivery of this Lease and the performance of the obligations
hereunder.
0. Notwithstanding anything to the contrary in this
Lease, if either Sublessee or Sublessee cannot perform its
obligations due to events beyond either party's control, the time
provided for performing such obligations shall be extended by a
period of time equal to the duration of such events. Events
beyond the parties' control include, but are not limited to
hurricanes and floods and other acts of God, war, civil
commotion, fire, and flood or other casualty. W.itih respect to
Sublessor's obligations it also includes events that are beyond
Sublessor's control..
35. SPECIAL PROVISIONS:
It is understood and agreed by and among Sublessor,
Sublessee and Owner that the execution of this Lease by Owner
will not in any manner create any obligations on the part of the
Owner towards Sublessor and Sublessee except as specifically
stated hereunder:
1. Owner consents to the subletting of the Premisees
by Sublessor to Sublesseee on the terms and conditions set forth
in this Lease.
2. Owner accepts the Security Deposit and agrees that
the Guaranty satisfies Owner's requirements in this regard.
94_ 586
- 'kAFT
t�
3. Whenever Owner is required, or wishes to, give any
notice to Sublessee hereunder, Owner agrees to simultaneously
deliver such notice to Sublessor, in the same manner as such
notice is required to be delivered to Sbulessee under Section
of this Lease.
4. Owner agrees to permit Sublessor to perform any
act required to be performed by Sublessee hereunder in order to
effect a cure of any default hereunder, under the same terms and
conditions, including time to cure, as apply to Sublessee's
performance.
5. At Sublessor's request, and provided Owner is
satisfied with the insurance protection to be provided by
Sublessee hereunder, Owner shall waive Sublessor's insurance
requirements under the Master Lease.
IN WITNESS WHEREOF, the parties have signed and delivered
this Lease as of the day and year first above written.
Witnesses: SUBLESSOR:
DOWNTOWN DEVELOPMENT AUTHORITY,
a Florida body corporate
By: [SEAL]
Its:
(As to TENANT)
Witnesses:
only)
(As to LANDLORD)
_25_
SUBLESSEE:
INTRAEXPO, INC., a Delaware
corporation authorized to do
business in Florida
By: [SEAL]
Its:
LANDLORD: (as to Paragraph 37
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
a New York corporation
By: [SEAL]
Its:
94- 586
DR
EXHIBIT "G"
14.
OPERATOR'S PROPOSAL
'DRAFT
OPERATOR AGREEMENT
FOR
INTERNATIONAL MERCHANDISE, EXPOSITION AND TRADE CENTER
THIS AGREEMENT is made and entered into this day of
, 1994, by and between DOWNTOWN DEVELOPMENT AUTHORITY,
a Florida body corporate having its principal offices at 330
Biscayne Boulevard, Penthouse, Miami, Florida 33132 ("DDA") and
INTRAEXPO, INC., a Delaware corporation, having its principal
offices at N.E. Corner 2nd St. & Girard Avenue, Philadelphia,
Pennsylvania 19122-4501 (the "Operator").
RECITALS
A. DDA is an entity created by
for the purpose of preserving, promoting and developing the
economic base of the Downtown area of the City of Miami
("Downtown Miami").
B. RDA has been awarded a ($2,500,000.00) Two Million Five
Hundred Thousand and no/100 Dollars grant (the "Grant") by the
United States Department of Commerce, Economic Development
Administration ("EDA") for the purpose of creating an
international merchandise, exposition and trade center in
Downtown Miami (the "Project"), in accordance with the provisions
set forth in the Special Terms and Conditions and General Terms
and Conditions for Economic Adjustment Assistance Grant, Project
No. 04-59-03989, (the "Grant Agreement"), a copy of which is
attached hereto as Exhibit "A".
C. The Operator is experienced in the development,
marketing, management and operation of international merchandise,
exposition and trade centers and has presented to DDA a detailed
proposal for the implementation of the Project, a copy of which
is attached hereto as Exhibit "B" (the "Operator's Proposal").
D. DDA has selected the Operator as the most responsible
and responsive proposer to the Request for Proposals (the "RFP")
issued by DDA for the Project, a copy of which is attached hereto
as Exhibit "C".
E. The RF'P and the Operator's Proposal contemplate the
location of the Project at the property known as Omni
International Mall, located in Downtown Miami (the "Property").
F. DDA has entered into a Master Lease Agreement (the
"Master Lease") with the Equitable Life Assurance Society of the
United States, as owner of the Property, for the leasing of the
(4th) Fourth Floor of the Property (the "Premises").
G. DDA and the Operator have executed a Sub -Lease
Agreement for the Premises, dated of even date herewith, a copy
of which is attached hereto as Exhibit "D" (the "Sub -Lease").
H. DDA and the Operator wish to set forth the terms and
conditions under which the Operator will establish, develop,
operate and manage the Project.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, DDA and Operator agree as follows:
-2 - 94- 586
TERMS
1. RECITALS. The Recitals and the Exhibits described
therein are hereby incorporated into the Agreement and are, by
this reference, made a part hereof.
2. TERM. The Term of this Agreement shall be of (20)
twenty years, unless sooner terminated in accordance with the
provisions of Section 18 below. The term shall commence on the
commencement date of the Sublease (the "Commencement Date").
3. SCOPE OF SERVICES. The Operator shall be responsible
for the development, marketing, management and operation of the
Project, and agrees to use its best efforts to perform the
services, with a view toward achieving the objectives, described
in the Operator's Proposal, as it may be amended from time to
time in accordance with Section 4 below. Without limiting the
generality of the foregoing, Operator agrees to:
(a) design and implement advertising and marketing
campaigns to attract to the Project manufacturers, importers,
distributors, wholesalers, retailers of importers goods and other
participants as described, or contemplated, in the Operator's
Proposal (the "Participants").
(b) provide, or cause to be provided at the Project,
financial, insurance, freight, shipping, telecommunications,
paperwork processing, customs and other services related to, or
designed to assist or promote, the business of the Participants
and the Project.
(c) select, organize and maintain a regular flow of
exhibits, seminars, cultural festivals, or other similar
-3 -
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activities designed to enhance and promote trade opportunities,
cultural exchange and better understanding among the people of
the world.
(d) maintain an adequate, well trained, in-house staff
to perform the services.
4. OPERATOR'S PROPOSAL, REVIEW AND COOPERATION. Operator
acknowledges that DDA is relying on Operator's expertise and the
representations and goals contained in the Operator's Proposal
for the establishment, development and operation of the Project.
Operator further acknowledges that the Premises will be improved
by DDA with the Grant funds, which Grant was awarded by EDA to
DDA for the express purpose of enhancing and promoting
international business and trade in the Miami area. Accordingly,
Operator agrees as follows:
(a) to periodically meet with DDA's designated
representatives to review, evaluate and, if necessary, revise
Operator's Proposal with a view toward maximizing the success of
the Project;
(b) to provide DDA with semi-annual written reports of
the operation of the Project, including specific financial
information documenting operating results; reports on members,
exhibitors and participants and other specific information
describing advertising and promotional programs, as well as the
Project's activities, accomplishments, goals and projections, to
enable DDA to provide its input with respect to the
implementation and development of the Project. From three (3) to
five (S) years following the Commencement Date the parties will
evaluate the need to continue to provide the reports required in
this section on a semi-annual basis, with the goal of extending
this requirement to annual reports;
(c) to maintain an open line of communication with DDA
and to keep itself informed of upcoming activities in the Miami
area in order to coordinate the Project's activities with the
City's activities to maximize the exposure of the Project and the
City to the international community.
5. COMPLIANCE WITH TERMS OF GRANT AGREEMENT. Operator
agrees, at all times, to comply with the obligations, and abide
by the restrictions, set forth in the Grant Agreement and in the
federal regulations and related laws described therein. Without
limiting the generality of the foregoing, Operator agrees to (a)
execute, at DDA's request, such documents as DDA may reasonably
require, to evidence Operator's agreement to abide by the
provisions of the Covenant of Purpose, Use and Ownership
described in the Grant Agreement; and (b) operate the Project at
all times as an international merchandise, exposition and trade
center, and to refrain from doing anything and not to permit
anything to be done on or about the Premises that would
constitute an "unauthorized use" of the Project under the Grant
Agreement.
6. COMPENSATION. In consideration of this Agreement and
Operator's use of the Premises, and in further consideration of
DDA's expenditure of the Grant funds to improve the Premises for
the establishment of the Project, Operator agrees as follows:
-5 -
94- 586
(a) commencing on the third anniversary of the
Commencement Date and thereafter on each anniversary of the
Commencement Date, Operator shall pay to DDA the greater of (i)
$100,000 or (ii) an amount equal to 6.5% of the "profits" from
the Project (as herein defined) for the immediately preceding
year. In the event the Commencement Date is a day other than
January 1, then the first payment under this section shall be due
on the third anniversary of the Commencement Date and a partial
payment based on $100,000.00 per year, prorated on the basis of
the number of days from the third anniversary through and
including December 31, shall be due on the next ensuing January
1. Thereafter payments under this section shall be due on January
1 of each year during the Lease Term. By way of example, if the
Commencement Date is September 1, 1994, the first payment under
this section shall be due on September 1, 1997, said payment
being in the amount of $100,000.00 or 6.5% of the "profits",
which ever is greater. On January 1, 1998, Operator shall pay
DDA the sum of $16,164.38, which represents payment of
$100,000.00 prorated for the period commencing on September 2,
1997 and ending December 31, 1997.
For purpose of this paragraph the term "profits" shall
mean: the total of all revenues, from all sources, received by
Operator from all activities relating to the operation of the
Project, reduced by the total of all amounts paid by Operator for
the operation of the Project and the performance of Operator's
services under this Agreement and the Sublease (the "Operating
Expenses"). The term "Operating Expenses" shall include (1)
-6 - 94- 586
�R
cooAA
n�
amounts paid or reserved for the payment of Rent under the
Sublease, including sales tax and Overhead Rent, as defined in
the Sublease and (2) the amounts to be paid by Operator to DDA
under paragraph (b) below. The term "Operating Expenses" shall
not include any amounts paid or reserved for the payment of
taxes, (except sales taxes in the operation of the Project or the
taxes described in item (1) above); or "Capital Expenditures",
which term means all expenditures for the purchase or leasing of
additional or replacement furniture, machinery or equipment, the
depreciable life of which, according to accepted accounting
principles, is in excess of one (1) year and expenditures for
building additions, alterations or improvements (except
alterations or improvements inherent in the operation of the
Project).
(b) Operator shall pay to DDA the sum of $2,500,000.00
in fifteen (15) consecutive annual installments of $166,666.66
each, commencing on the first day of the month which is the 18th
month following the month of the Commencement Date and ending as
fifteen (15) years thereafter (the "Repayment" of the public
interst).
(c) DDA and Operator agree that the first $500,000 of
the Repayment received by DDA shall be held by DDA in �eserve
(the "Reserve") throughout the first fifteen (15) years of the
term of this Agreement, to secure Operator's performance under
this Agreement and the Sublease Agreement, and may be used by
DDA, in its sole discretion, to pay any amounts required to be
paid by Operator, or to cure any defaults of Operator, under this
Agreement or the Sublease. Nothing contained herein, however,
shall require DDA to cure any default of Operator under any
agreement nor shall the use of the Reserve Fund by DDA to cure a
breach on the part of the Operator shall be deemed a waiver of
any other remedy of DDA under the agreements; it being understood
and agreed that the Repayment shall at all times belong to DDA.
The balance of the Repayment (the "Excess Funds") shall
be used for the following purposes, at DDA'a sole discretion:
(i) to finance, on terms acceptable to DDA and
Operator, the improvement or expansion of the Project;
(ii) activites undertaken by DDA for the
improvement or promotion of the Omni Neighborhood, including the
improvement 'of public areas, signage, promotional literature,
area advertising, and special events; and
(iii)the promotion and furtherance of
international trade and business, provided that no funds
aliocated to this purpose shall exceed one-third (1/3) of the
Excess Funds collected, nor shall they be used for activities that
would be in direct competition with the Project.
The restrictions contained in this section (c) shall
become null and void upon termination of this Agreement or the
Sublease Agreement.
7. BOOKS AND RECORDS; FISCAL RESPONSIBILITY: Operator
agrees as follows:
(a) On a date to be agreed upon by the parties, (but
in no event later than 120 days following the end of each
operator's fiscal year), Operator shall provide to DDA a complete
-s - 94- 586
financial report of the Project, prepared and audited by a
recognized accounting firm acceptable to the DDA and the
Operator.
(b) Operator agrees to keep and maintain, at its
office in the Property, separate and independent records in a
separate set of books devoted exclusively to the Project. Said
books, ledgers, journals, accounts, and records shall contain all
entries reflecting the business operations of the Operator under
this Agreement. Upon reasonable notice given by DDA to Operator,
all of the foregoing records shall be open for examination and
audit by DDA. DDA agrees to conduct such examinations and audits
at reasonable times and in a reasonable manner so that DDA's
activities will not interfere with the normal course of business
of the Project. Operator agrees that all documents, records and
reports maintained and generated pursuant to this contractual
relationship, shall be subject to the provisions of the Public
Records Law, Chapter 119, Florida Statutes.
8. INSURANCE. The Operator agrees to obtain insurance
coverage as specified below, and agrees to maintain such required
insu-ance in force, during the term of this Agreement. No
modification or change in insurance shall be made without ninety
(90) days written advance notice to DDA.
a. Workers' Compensation Insurance - as required by
Chapter 440, Florida Statutes.
b. Comprehensive General Liability Insurance - with
at least a combined single limit for bodily injury, and property
damage liability of $ per occurrence. The policy
shall be endorsed to include personal injury liability coverage.
-9 - 94_ 586
*s%Ar.r
M
C. Automobile Liability Insurance - covering all
owned, non -owned and hired vehicles used in connection with the
work, in amounts of $ per person - $ per
occurrence for bodily injury liability and $ per
occurrence for property damage liability.
d. DDA shall be named as additional insured, as its
1
interest may appear in the insurance policies described in
subsections b and c hereinabove.
All insurance policies required of the Operator shall
be issued in companies authorized to do business under the laws
of the State of Florida. As minimum qualifications as to
management and financial strength, the insurance company or
companies must be rated no less than "A" as to management, and no
less than "Class X" as to strength, by the latest edition of
i
4 Best's Insurance Guide, published by Alfred M. Best Company,
Inc., 75 Fulton Street, New York, New York.
Operator agrees to furnish Certificates of Insurance to
DDA prior to commencing any operations under this Agreement,
which Certificates shall clearly indicate that the Operator has
obtained insurance in the types, amount, and classifications in
compliance with this Section. DDA shall, upon receipt of
certificate of insurance, notify Operator within ten (10) days as
to the acceptance of such insurance as meeting all terms and
conditions of this Section and any other requirements contained
herein relating to insurance coverage.
j!{f Operator agrees to waive all insurance subrogation
f 1
rights.
1
-10 - 94- 586
11);;, Ar 0
9. HOLD HARMLESS. Operator agrees to defend, indemnify and
hold harmless DDA from and against any and all costs, liability,
damage or expenses, including legal services, claimed by anyone
by reason of injury or damage to person or property arising out
of the use or occupancy of the Premises by anybody whatsoever, or
in any way relating to this Agreement. Operator agrees also to
assume the defense of, and indemnify and hold harmless DDA
against and from, any and all liens and charges of every nature
and kind that may at any time be established against the
Premises, or any part thereof, as a consequence of any act or
omission of the Operator.
Operator and DDA, each agrees to give to the other
prompt and timely written notice of any claim made or suit
instituted within its knowledge that in any way, directly or
indirectly, contingently or otherwise, affects or might affect
the other party; and both DDA and the Operator shall have the
right to participate in the defense of the same to the extent of
their own interest.
10. CONFLICTS OF INTEREST
a. Operator is familiar with the provisions of the
Miami City Charter and Code, Dade Charter and Code, and Florida
Statutes, and agrees to fully comply with the terms thereof.
Operator certifies that no person under its employ, who presently
exercises any functions or responsibilities in connection with
this Agreement has any personal financial interest, direct or
indirect, with DDA or the City. Operator further agrees not to
employ, to perform this Agreement, any person having such
94- 586
interest Operator shall disclose any conflict to the City, in
writing, at any time during the term of this Agreement that such
facts become known to the Operator.
b. DDA recognizes that the Operator will enjoy
economic benefits from the operation of the Project. However,
Operator agrees that it will perform its obligation under this
Agreement in a manner consistent with the best interest of the
City of Miami.
11. COMPLIANCE WITH LAWS. Operator agrees to comply with
all applicable local, state, and federal ordinances, statutes,
rules and regulations, in the performance of its obligations
hereunder, including specifically, without limiting the
generality of the foregoing, all of the provisions of the Grant
Agreement, including all laws and regulations referenced therein,
and all applicable provision in the Code of the City of Miami,
Florida, including the provisions and sections referenced in the
RFP.
Operator agrees to obtain all permits necessary to
occupy and use the Premises and any local, state or national
licenses and permits to enable it to perform its obligations
hereunder. DDA agrees to cooperate with Operator in obtaining,
such permits, at Operator's expense.
12. NON DISCRIMINATION. Operator agrees that it shall
not discriminate as to race, color, religion, sex, national
origin, age, handicap or marital status in connection with its
performance under this Agreement and the operation of the
Project.
94- 586
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i
13. RESTRICTIVE COVENANT. During the term of this
Agreement, Operator agrees not to enter into any similar
agreement for the operation of an international merchandise mart
or similar project, in any other location within the City of
Miami unless the agreement is (a) with the City of Miami or DDA,
or (b) agreed to by the City of Miami or DDA.
14. RELATIONSHIP OF PARTIES. DDA and the Operator agree that the
only relationship to be created pursuant to this Agreement is one
for supplying the herein described services and that the Operator
is an independent contractor and not an agent, employee or
partner of DDA.
Operator shall have complete control over its employees
in the method of performing their work and shall retain the right
to exercise full control and supervision of the services and full
control of the employment, direction, compensation and discharge
of all its employees.
15. QUIET ENJOYMENT. DDA agrees that if, and as long as,
Operator keeps and performs each and every covenant, agreement,
term, provision and condition on the part and on behalf of the
Operator to be kept and performed under this Agreement and under
the Sub -Lease, the Operator shall quietly enjoy its rights under
this Agreement, without hindrance and molestation by DDA.
16. NON -WAIVER OF RIGHTS. In the event of any breach of
any representation, covenant, warranty or provision made in this
Agreement, or any of the Exhibits hereto, by either party,
failure by the non -breaching party to assert or exercise any
right, remedy or privilege shall not constitute a waiver of such
-13 - 94- 586
�"'Ytaalbtati
rights, remedy or privilege. No waiver shall be effective,
unless in writing, and then it shall be effective only in the
specific instance for which given. In no event shall any waiver
constitute a waiver of future rights, remedies, or privileges to
which a party may be entitled by virtue of any breach.
17. DEFAULT. The occurrence of any one of the following
shall constitute a default under this Agreement:
(i) Operator's failure to pay to DDA any payment due
hereunder within thirty (30) days following the date when same is
due.
(ii) Operator's failure to perform any of the covenants, or
Operator's breach of any of the terms of this Agreement which
failure or breach is not cured within thirty (30) days following
DDA's written notice thereof to Operator.
(iii) The occurrence of a default under the Sub Lease
Agreement or under any other existing or future agreement between
Operator and DDA, which is not cured within the applicable grace
period.
(iv) An unauthorized use of the Premises, as defined in the
Grant Agreement, which is not cured within thirty (30) days,
provided the Grant Agreement affords a period of time for cure.
18. DDA's REMEDIES; TERMINATION OF AGREEMENT
a. In the event of a monetary default, DDA shall have
the right, in addition to other remedies provided in this
Agreement, to collect interest on the past due amount from the
date payment was due until the date payment is received by DDA,
at the rate of twelve percent (12%) per annum.
-14 - 94- 586
b. In the event of a default under the Grant
Agreement that results in EDA's collection of any monies pursuant
to the terms thereof then, in addition to other remedies herein
provided, Operator shall be liable to DDA for all monies required
to be paid by DDA as a result of such default.
C. The occurrence of any default hereunder shall give
DDA the right to terminate this Agreement by written notice to
Operator of its intent to terminate ("Notice of Termination").
Except as provided in subsection (i) below, the Notice of
Termination shall set a date, which shall be not earlier than
thirty (30) days after the date of the notice, (the "Effective
Date of Termination"), by which all defaults must be cured.
Failure to cure the default on or before the Effective Date of
Termination shall result in the immediate and automatic
termination of Operator's rights under this Agreement.
d. Upon termination of this Agreement, Operator shall
immediately vacate the premises.
e. The termination of this Agreement as a result of
Operator's default or pursuant to subsection (i) below shall not
release the Operator from its obligation to reimburse DDA for the
principal of the Grant, as set forth in paragraph 6(b) above.
f. Upon termination of this Agreement by DDA the
Operator shall pay DDA all sums due and owing through the date of
termination, plus all costs to DDA for removing or replacing
Operator, including fees paid to firm(s) hired to replace the
Operator.
-15 - 94- 586
g. On the Effective Date of Termination, the Operator
shall (unless otherwise agreed) promptly discontinue all
services, and deliver or otherwise make available to the DDA all
data, documents, procedures, reports, estimates, summaries, and
other such information and materials as may have been accumulated
by the Operator in performing its obligations hereunder, whether
completed or in process.
h. Upon termination DDA may take over the work and
see that the same is completed by agreement with another party or
otherwise, all without liability to the Operator.
i. Notwithstanding anything herein to the contrary,
the occurrence of any one of following events shall cause the
immediate, automatic termination of this Agreement without the
need of any action or notice on the part of DDA:
(1) Termination of Operator's rights, or
occupancy, under the Sub Lease Agreement.
(2) The occurrence of any act or omission on the
part of the Operator that deprives it of the rights, powers,
licenses, permits and authorizations necessary for the lawful and
proper conduct and operation of the services and activities
authorized.
(3) The filing by the Operator of any petitions
in bankruptcy or the making by the Operator of any assignment for
the benefit of creditors, either of which actions shall
automatically be basis for termination and bar the passing of any
benefits to creditors, assignees, or transferees of the Operator.
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94- 586
(4) The filing of any bankruptcy petition against
the Operator which is not dismissed within ninety (90) days from
the date of said filing.
19. NON-ASSIGNAEILIT'Y. DDA is entering into this Agreement
in recognition of and in reliance on the expertise, reliability
and competence of the Operator in matters pertinent hereto. The
performance of the obligations imposed upon the Operator under
this Agreement will not be assignable by it to any other party
without the written consent of DDA. Any purported assignment in
contravention of this Section shall be void.
n � A
20. PERSONNEL
a. The Operator's President, Alejandro J. Gallard-
Prio, (the "Principal"), shall be primarily responsible for the
Operator's operation of the Project. The Principal shall devote
his best efforts to the Project.
b. The Principal is considered by DDA as the key to
the successful operation of the Project. Should the Operator
seek to substitute the Principal for any reason other than the
death or serious illness of the Principal, the Operator agrees to
seek and receive approval by DDA of the individual to serve in
the Principal's position and DDA reserves the right to approve
all replacements for this position. DDA shall not unreasonably
withhold such approval.
C. All personnel employed at the Project shall be
employees of the Operator and shall not be deemed employees of
DDA. The employees and agents of the Operator shall attain no
rights or benefits under the Civil Service or Pension Ordinances
of the CITY, nor the rights generally afforded classified or
unclassified employees of the CITY, nor shall the Operator or its
employees be entitled to Florida Workers' Compensation benefits
as employees of the CITY. The Operator agrees to make every
reasonable effort to recruit employees who reside in Miami. The
Operator agrees to be responsible for the hiring and direct
remuneration of all permanent personnel necessary for the
operation of the Project, as well as other temporary personnel,
and any other persons required to perform the services
undertaken.
94- 586
nn ^ ra M
21. NOTICE. All notices required or permitted to be given
pursuant to this Agreement shall be in writing and delivered
personally or sent by registered or certified mail, return
receipt requested. All such notices to either party shall be
deemed to have been received when delivered, if delivered
personally, or five (5) days after depositing the same, postage
prepaid, with the United States Postal Service, addressed as
follows:
To DDA: 330 Biscayne Boulevard
Penthouse
Miami, Florida 33131
Attn: Executive Director
with copies to:
City of Miami Law Dept.
300 Biscayne Blvd. Way, Suite 300
Miami,Florida 33131
Attn: City Attorney
To the Operator: N.E. Corner 2nd Street & Girard
Ave.
Philadelphia, P.A. 19122-4501
with copies to:
Angel A. Cortinas, Esq.
Lehtinen, Cortinas, Vargas &
Reiner, P.A.
7700 N. Kendall Drive, Suite 303
Miami, Florida 33156
22. THE AGREEMENT: GOVERNING LAW. This Agreement,
together with the Exhibits attached hereto, (a) constitute one
document; (b) comprise the entire understanding between the
parties; (c) supersede all prior agreements; and (d) shall be
governed by the laws of the State of Florida.
23. AMENDMENTS TO AGREEMENT. No alteration or
variation of terms shall be valid unless made in writing and
_19
94- 586
DRAFT
signed by both parties, and no oral understanding or agreement
not incorporated therein shall be binding on any of the parties.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be executed by the respective officials thereunto
duly authorized, this the day and year first above written.
Attest: Operator
By:
Secretary, President
Alejandro J. Gallard-Prio
[CORPORATE SEAL]
DDA
Corporation of the State of
Florida
i
i
By • ---
City Clerk City Manager
t
APPROVED AS TO FORM AND CORRECTNESS:
A. QUINN JONES, III
CITY ATTORNEY
RISK MANAGEMENT
M490C/ORS/amr 9:38 AM @ 7/20/94
INDEX TO
INTERNATIONAL
MERCHANDISE EXHIBITION & TRADE CENTER
Basic Lease Information Rider........................I,II,III
1. Premises; Common Areas ......................1
2. Lease Term; Lease Dates .............................. 1
3. Rent ................................................. 2
4. Security Deposit ..................................... 5
5. Use .................................................. 6
6. Delay of Possession .................................. 6
7. Acceptance of Premises; Landlord's Work; Covenant of
Purpose, Use and Ownership ........................... 6
8. Parking .............................................. 7
9. Building Services. 8
10. Security ............................................. 9
11. Repairs and Maintenance .............................. 10
12. Tenant's Alterations ................................. 11
13. Landlord's Additions and Alterations ................. 11
14. Assignment and Subletting ............................ 12
15. Tenant's Insurance Coverage .......................... 12
16. 'Landlord's Insurance Coverage ........................ 13
17. Subrogation .......................................... 13
18. Damage or Destruction By Casualty... ................. 13
19. Condemnation and Eminent Domain ...................... 14
20. Compliance With Laws and Procedures .................. 14
21. Right of Entry ....................................... 15
22. Default .............................................. 15
23. Landlord's Remedies for Tenant's Default ............. 16
24. Liens ................................................ 16
25. Notices .............................................. 17
26. Mortgage; Estoppel Certificate; Subordination........ 17
27. Attornment and Mortgagee's Request ................... 17
28. Transfer by Landlord ................................. 18
29. Surrender of Premises; Holding Over .................. 18
30. No Waiver; Cumulative Remedies ....................... 18
31. Waiver ............................................... 18
32. Rules and Regulations ................................ 18
33. Successors and Assigns ............................... 19
34. Quiet Enjoyment ...................................... 19
35. Entire Agreement ..................................... 19
36. Hazardous Materials .................................. 19
37. Bankruptcy Provisions ................................ 20
38. Right of Expansion ................................... 21
39. Right of Last Refusal ................................ 21
40. Miscellaneous ........................................ 21
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EXHIBIT(S):
Exhibit "A" Floor Plan
Exhibit "B" Work Letter
Exhibit "C" Covenant of Purpose, Use and Ownership
Exhibit "D" Rules and Regulations
Exhibit "E"
Exhibit "F" Project Description and Budget
i
JKAFI
INTERNATIONAL MERCHANDISE MART SUBLEASE
BASIC LEASE INFORMATION RIDER
DATE OF LEASE: 11994.......................pg 1
OWNER: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
a New York corporation qualified
to do business in the State
ofFlorida..............................pg
SUBLESSOR: DOWNTOWN DEVELOPMENT AUTHORITY,
a Florida body corporate................pg
SUBLESSEE: INTRAEXPO, INC., a Delaware corporation
authorized to do business in the State
ofFlorida..............................pg
PREMISES: Fourth Floor of the former Jordan
Marsh of Omni International Mall,
1601 Biscayne Blvd., Miami,
Florida 33132 ..........................pg
GROSS LEASABLE
AREA OF PREMISES: 65,000 square feet .....................pg
LEASE COMMENCEMENT
DATE: The date the Sublessor's
improvements are completed and
a certificate of occupancy is
obtained for the Premises...............pg
EXPIRATION DATE: Twenty (20) years after
the Lease Commencement
Date....................................pg
LEASE TERM: Twenty (20) years.......................pg
RENT COMMENCEMENT
DATE: The Lease Commencement Date.............pg
BASE RENT: $5.00 per square foot. On the
fifth (5th) anniversary of the
Lease Commencement Date and every
five (5) years thereafter during
the Lease Term, the Base Rent
shall be increased by $.50 per
squarefoot .............................pg
94- 586
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OVERHEAD RENT: Tenant's Share of increases in Meal Estate
taxes...................................Pg
ADDITIONAL RENT: Parking Rent and all other
charges due under the Lease.............pg
TENANT'S SHARE:%.................................pg
BASE YEAR FOR
CALCULATION OF
OVERHEAD RENT: 1995....................................pg
SECURITY DEPOSIT
RECEIVED: Rent Guaranty in the form
attached hereto as
Exhibit............................Pg
USE OF PREMISES: International Merchandise, Exposition
and Trade Center, including permanent
and semi -permanent showrooms,
conference and exhibition space,
for trade shows and other
office uses and auxiliary services,
including financial, translating,
paperwork processing, regulatory
and freight and shipping services ... .... pg
Noretail use ...........................pg
PROHIBITED USE: No retail use ...........................pg
SUBLESSOR'S ADDRESS
FOR NOTICES: Downtown Development Authority
330 Biscayne Boulevard
Penthouse
Miami, Florida 33131
Fax No. (305) 371-2423
Attn: Executive Director
with copies to:
City of Miami Law Dept.
300 Biscayne Blvd. Way
Suite 300
Miami, Florida 33131
Fax No. (305) 579-3399
Attn: City Attorney
94- 586
I.
SUBLESSEE'S ADDRESS
FOR NOTICES: Intraexpo, Inc.
Fax No. ( )
Attention:
with copies to:
Fax No. ( )
OWNER'S ADDRESS
FOR NOTICES: The Equitable Life Assurance Society of the
United States
Fax No. ( )
Attention:
with copies to:
Summa Properties
9200 S. Dadeland Boulevard- Miami Center
Suite 100
Miami, Florida 33156
Fax No. ( )
Attention: Mr. Jack Lowell
and to:
Mastriana & Christiansen
2750 N. Fedreal Highway
Ft. Lauderdale, Florida 33306
Fax No. (305) 566-1596
Attention: Mr. F Ronald Mastriana
PROJECT: An International Merchandise, Exposition and
Trade Center to be established by Sublessee
on the Premises.
P- RAFT
i
PARKING: Number of Parking Spaces in Garage ......pg
Parking Spaces for Sublessee's Use �50. ......pg
Monthly Rate per Parking Space ......pg
the rate normally charged to non -
retail Tenants in the Building
(currently $25.00 per month)
INSURANCE: Amount of General Comprehensive Liability $1,000,000
EXHIBITS:
Attachment 1 [Master Lease]
Exhibit A .....[Premises]
Exhibit B .....[Work Letter]
Exhibit C .....(Covenant of purpose, Use and Ownership)
Exhibit D .....[ )
Certain of the information relating to this Sublease,
including many of the principal economic terms, are set forth in
the foreign Basic Sublease Information Rider (the "BLI Rider").
The BLI Rider and the Sublease are, by this reference, herby
incorporate into one another. In the event of any direct
conflict between the terms of the BLI Rider and the terms of the
Sublease, the BLI Rider shall control. Where the Sublease simply
supplements the BLI Rider and does not conflict directly
therewith, the Sublease shall control.
{
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1
1
94- 586
I.
' JRAFT
IN WITNESS WHEREOF, Sublessor, Sublessee and Owner have
signed this BLI Rider as of the day of , 1994.
"SUBLESSOR"
DOWNTOWN DEVELOPMENT AUTHORITY,
a Florida body corporate
By
Its:
ATTESTED BY: "SUBLESSEE"
i
INTRAEXPO, INC.,
a Delaware corporation
Carlos A. Acosta
Secretary
By:
Alejandro Gallard-Prio
Its: President
By:
"Owner"
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM 16
The Honobable Mayor and DATE Jill I Q ino�! FILE
TO Members of the City Commission
Sublease and Operating
SUBJECT Agreements between DDA
and INTRAEXPO, Inc.
FROM : C e s a i o REFERENCES
City ger For July 26, 1994
ENCLOSURES :City Commission Meeting
Recommendation
It is respectfully requested that the City Commission approve the
attached Sublease and Operating Agreements between the DDA and
INTRAEXPO, Inc. The sublease agreement provides for INTRAEXPO,
Inc. to assume DDA's liabilities under its lease with Equitable
Life Assurance Society of the United States; the approval of
which is the subject of a companion resolution. The operating
agreement covers matters related to the leasing and subleasing of
space; necessary to obligate INTRAEXPO to operate the facility in
accordance with its proposal to the DDA.
Background
INTRAEXPO, Inc., a Spanish backed Philadelphia based company, was
selected by the DDA Board of Directors as the preferred developer
of an international trade center as the result of an
internationally advertised Request For Proposals (RFP) and due
diligence conducted by a Committee of the Board.
Last Fall, the DDA issued a Request For Proposals for a developer
and operator of an international trade center at the Omni. In
January of 1994, the three proposals received were rejected and
the decision was made to reissue the RFP giving respondents the
option of proposing an alternative site with the intent of
identifying all possible alternatives and enabling the DDA to
select the best project; overall.
An international advertising and notification campaign was
implemented to alert individuals and organizations involved in
the development of trade marts and centers and in trade promotion
generally; to the RFP. Six proposals were received of which the
Board of Directors accepted five for review on April 4th. These
five proposals were reviewed by a special committee convened for
this purpose: and chaired by Wally Lee. The committee's report to
the DDA Board of Directors recommending INTRAEXPO, Inc, as the
preferred proposal is attached.
/6/-/
94- 586
IN
The Honorable Mayor and
Members of the City Commission
page 2
The DDA Board of Directors subsequently appointed a Committee of
Board Members to complete due diligence with respect to the first
and second ranked proposers. Based on the report of the Due
Diligence Committee (attached), the Board of Directors concluded
that INTRAEXPO, Inc. had the experience and financial capability
to implement their proposal and affirmed them as the selected
developer of the international trade center.
INTRAEXPO, Inc. is proposing an innovative concept combining the
intensive marketing of a trade show with the permanence of a
trade mart. For the Omni complex and Downtown, it will be
comparable to having a trade show going on 365 days a year. The
65,000 square feet of space occupied by INTRAEXPO, Inc. will be
supplemented by the conference facilities of the Crowne Plaza
Hotel for special seminars and events. The trade center is
expected to create a flow of visitors who will stay at nearby
hotels and use the other facilities of the Omni Mall. INTRAEXPO,
Inc. will work through approximately forty export promotion
associations from different countries who will be the "anchor"
members of the facility. These organizations will be the conduit
for individual businesses to participate in a host of activities
and services aimed at providing them with a continuing presence
in Miami as part of a comprehensive marketing program. Cultural
festivals featuring the culture, music, fashion, food and
beverage of member countries will bring additional interest and
activity.
The three way transaction between the DDA, INTRAEXPO, Inc. and
Equitable is structured so that INTRAEXPO, Inc. and Equitable
bear all financial obligations. The DDA's obligation is limited
to improving the space in accordance with pre -approved plans;
utilizing the proceeds from the EDA Grant. The DDA will lease
the space from Equitable on an exculpatory basis, improve it to
suit INTRAEXPO, Inc.'s planned operation and in turn sublease it
to INTRAEXPO, Inc. who will assume the DDA's responsibilities
under the lease. Equitable has agreed to assume the DDA's
obligation, under the terms of the EDA Grant, to reimburse the
EDA for the value of the improvements should the facility cease
to be used as an international trade center before expiration of
the 20 year lease; required by EDA.
CHO/MDS/jt
encl
MEMORANDUM
April 26, 1994
TO: DDA Board of Directors
FR: Wally Lee, Chairman
f Downtown Miami International Trade Center
1 Proposal Evaluation Committee
Members: Annette Eisenberg
Carlos Garcia
Bill Klein
Luli Landis
Miriam Lopez
Larry Perl
RE: Final Committee Recommendations
Committee Recommendations:
R
After reviewing the proposals, the response to Addendum No. 2, and hearing
presentations from four of the proposers, the Proposal Evaluation Committee has
ranked four proposals in the order listed below, with the understanding that if an
agreement between DDA and the first -ranked proposer cannot be consummated, then
DDA will negotiate with the No. 2 ranked proposer. In order of preference, the
4'
Proposals were ranked:
#1 IntraExpo, Inc.
y
#2 Alfred I DuPont Proposal
#3 Broadway Financial, Inc.
#4 FTZ - Central Florida U.S.A.
The ranking given by each committee member who was present at the final meeting is
attached. Trammell Crow International was found to be unresponsive because they did
not respond to Addendums No. 2 and No. 3. The committee recommends that it be
removed from further consideration under this process.
Several Committee members requested that the Board of Directors be made aware that
no independent verification of financial capability ryas been undertaken as part of the
review process and that the Board should undertake such measures as it deems
appropriate early in the process of negotiating an agreement.
94- 586
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Proposal Review Committee Recommendations
April 26, 1994
Page Two
Committee Report:
The Committee was convened on Friday, March 18th, to open the proposals, as
instructed by the Board of Directors. For lack of a quorum, the proposals were logged
in, but not distributed, to permit the committee to formulate the evaluation methodology
before reviewing the proposals.
The Committee reconvened on March 22nd without Lee Taylor who had tendered his
resignation to DDA Board Chairman, J. L. Plummer to avoid the possible appearance of
a conflict of interest; and without Sergio Pena, who had not attended previous meetings
or responded to telephone calls and faxed communications and was assumed to be
unable to participate. On the advice of counsel, the Committee recommended that the
proposal from Alcantara Machado Feiras not be accepted and that minor irregularities
pertaining to the other five proposals be waived. The review methodology was
formulated including the approval of a "Responsiveness Checklist" and the assignment
of weights to the review criteria found in the Request for Proposals.
Following the acceptance of five of the Proposals by the Board of Directors on April 4th,
the committee met on April 8th for a preliminary review of the proposals based on the
Responsiveness Checklist. At that time, the Committee found that all five proposals
required clarification in two respects considered of crucial importance by the committee,
and that requesting clarification would not give any of the Proposers an unfair
advantage since the response would need to be consistent with what had already been
submitted and none of them had adequately addressed the matters being clarified.
Addendum No. 2 was issued on April 11th requesting clarification of (1) documentation
evidencing that Proposer possesses the financial resources required to implement the
Proposal and (2) the terms of the Agreement between DDA and the Operator/Proposer.
Addendum No. 3 specified that an original and twelve copies of the response to
Addendum No. 2 were required.
On April 22nd, the four proposers who responded to Addendums Nos. 2 and 3 made
presentations to the Committee and responded to questions from Committee members.
Trammell Crow international did not respond or make a presentation. The Committee
voted to remove Trammell Crow from further consideration. The remaining four
Proposals were graded and ranked by each member of the Committee. The individual
rankings were combined as shown on the attached chart, Ranking of Proposals.
With the submission of these recommendations, the committee concludes its charge
and respectfully requests to be dismissed.
04-- 586
Downtown Miami International Trade Center
Proposal Review Committee Meeting
April 22,, 1994
Ranking ofProposals
Downtown Development Authority
Due Diligence Committee for IntraExpo
J
Purpose:
To complete the due diligence on IntraExpo as the developer of the
International Trade and Exhibition Center ("ITEC").
Summary of the facts:
1. DDA will_obtain a $2.5MM grant from EDA, the proceeds of
which will be used to improve the 4th floor of the former Jordan
Marsh store at Omni Mall. The terms of the grant require that the
space be used as a Trade and Exhibition Center for 20 years. If it
ceases to be used as such, the DDA is obligated to reimburse the
EDA based on a reducing scale as time elapses.
2. Equitable, the owner of the Omni Mall, has agreed to lease
DDA the space on an exculpatory basis if it approves the sub-
lessee of the space, i.e., the DDA has no financial obligation to
Equitable as a result of the lease, other than to improve the space
in accordance with pre -approved plans, to be funded from the
proceeds of the EDA grant. Equitable has also agreed to assume
financial responsibility for DDA's obligations under the terms of
the EDA grant should the facility not continue to be used as an
International Trade and Exhibition Center.
3. IntraExpo, in response to our RFP has agreed to sub -lease the
p � P � �'
Omni facility and operate it as an ITEC.
4. IntraExpo is a newly formed corporation established for the
purpose of operating the ITEC.
94 -- 58.6
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5. We have the opening, audited balance sheet of IntraExpo as of
March 31, 1994. The company's Balance Sheet showed:
$ 5,000 Cash
$350,000 Promissory Note from Mario Caliari,
purportedly a shareholder, payable at
$50,000/month starting May 1st, 1994.
This note results from his purchase of
3.5MM shares of $0.10/share par value
stock of IntraExpo.
$835,000 Investment in shares of Iberia Pavilions
("Iberia"), the company that purportedly
owns the building in Philadelphia that the
principals of IntraExpo were trying to
develop. We do not have financial
statements for Iberia but understand that the
IntraExpo statements that were submitted
with the original response to the R FP were
in reality those of Iberia. Assuming this is
correct, and that those statements are
correct, Iberia's major asset is a building
valued at approximately $1MM. We have
no independent verification of any of these
representations.
6. The owners of IntraExpo include:
Mr. Jose Manuel Triana Souto
Mr. Hipolito Pena Fernandez -Pena
Mr. Manuel Casanueva Camins
Mr. Julio San Martin Abad
We were also informed that there are other investors, but have not
been provided with a list of all the investors. The committee did
34- 586
not deem it essential that we obtain a list of all the investors,
because they were not providing any financial assurances or
statements, and they can change the stockholdersat any time.
7. Banco Urquijo, a reputable and strong Spanish bank, provided
a reference on the individuals mentioned in 6 above. The
reference states that they are well known and reputable
businessmen with the financial capacity to perform under the
terms of their agreement with the DDA. This is not an unusual
letter of reference from a Spanish bank and indicates that at least
one of these individuals is indeed well known to the bank and has
the financial capacity to perform. The bank also stated that a
$250,000 deposit had been made in the name of IntraExpo as of
May 9th, but we have no assurance that this deposit remains there
today.
8. IntraExpo has obtained a commitment from Allianz, AG, a
German insurance company, to guarantee their rent to Equitable at
$350MIyear for 2 years or a total of $700M. This is a reducing
guarantee as time elapses. The commitment to issue the guarantee
was provided by Falcos Service, purportedly an Italian agent of
Allianz. We have reviewed statements for Allianz, and consider
them to be fully capable of this undertaking. Allianz is an
insurance conglomerate, one of the largest and most reputable in
Europe. Our investigation resulted in very satisfactory references -
on this very reputable and financially strong entity. We requested
assurance that Falcos was indeed a fully authorized agent, but have
not yet received it.
9. We asked for financial Statements on all the partners, but these
were respectfully refused with the observation that they are not
customarily provided in Europe and that all of the direct
obligations of the partners are being met through the Allianz
94- IND �
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guarantee. We are therefore unable to provide any further
assurances on the financial capacity of the partners.
10. IntraExpo is committing to operate the ITEC. 'Financially, it
is only committing to insure the payment of rent to Equitable for
two years. They have made no further financial commitment to
this project outside of the resources of the company today, which
are $5,000 in cash and receivables and investments which we are
unable to verify. Their commitment to reimburse ILA for the
$2.5MM in grant moneys, will only be made if cash flow from the
project is available.
11. The principals did offer to secure any additional bank
references we would want. The committee requested a further
reference from Banco Sabatel and no others. As of this writing,
that reference had not been obtained.
12. Based on the foregoing facts, the guarantee of Allianz clearly
supports the only true financial obligation the developers have to
this project, which is the payment of rent for two years. Based on
the references received, we also believe the principals have the
financial capacity to fund the costs of marketing this project,
should they choose to do so. Although we have been unable to
independently verify this information, we believe that *e can rely
on the representations of the two Spanish banks for the amount.
involved which is estimated at $250M to $500M.
Conclusion:
Equitable has the financial capacity to meet their obligation with
regards to the potential reimbursement of the EDA grant. The
developers' financial commitment to the pr:..,let is limited to
paying rent for two years and this can be meL with the Allianz
guarantee.
94- 586