Exhibit 10.13
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
THIRTEENTH AMENDMENT TO LEASE
(Norwegian Cruise Line – The Landing
at MIA)
THIS THIRTEENTH AMENDMENT
TO LEASE ("Amendment") is dated effective and for identification purposes as of November 30, 2017 (“Effective Date”),
and is made by and between SPUS7 MIAMI ACC, LP, a Delaware limited partnership ("Landlord"), and NCL (BAHAMAS) LTD.,
a Bermuda company, d/b/a Norwegian Cruise Line ("Tenant").
RECITALS:
WHEREAS, Landlord’s
predecessor-in-interest (Xxxxx REIT Airport Corporate Center LLC) and Tenant entered into that certain Airport Corporate Center
Office Lease Agreement dated December 1, 2006 ("Original Lease"), as amended by that certain First Amendment to Airport
Corporate Center Office Lease dated November 27, 2006, Second Amendment to Airport Corporate Center Office Lease dated March 22,
2007, Third Amendment to Airport Corporate Center Office Lease dated July 31, 2007, Letter Agreement dated August 1, 0000, Xxxxxx
Xxxxxxxxx to Airport Corporate Center Office Lease dated December 10, 2007, Fifth Amendment to Airport Corporate Center Office
Lease dated February 2, 2010, Sixth Amendment to Airport Corporate Center Office Lease dated April 1, 2012, Seventh Amendment
to Airport Corporate Center Office Lease dated June 29, 2012, Eighth Amendment to Lease dated January 28, 2015, Ninth Amendment
to Lease dated June 30, 2015, Tenth Amendment to Lease dated Xxxxx 00, 0000, Xxxxxxxx Amendment to Lease dated February 8, 2017,
and Twelfth Amendment to Lease dated August 24, 2017 (collectively, the "Lease"), pertaining to the premises currently
comprised of a total of approximately 306,550 rentable square feet of space located at 0000 Xxxxxxxxx Xxxxxx Xxxxx (“Building
11”), 0000 Xxxxxxxxx Xxxxxx Xxxxx (“Building 10”), 0000 Xxxxxxxxx Xxxxxx Xxxxx (“Building 3”),
and 0000 Xxxxxxxxx Xxxxxx Xxxxx (“Building 8”) (collectively, the “Total Premises”), Miami, Florida;
WHEREAS, Landlord and
Tenant desire to enter into this Amendment to expand the Total Premises, and provide for certain other matters as more fully set
forth herein.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants contained herein, the parties agree that the Lease shall be amended in
accordance with the terms and conditions set forth below.
1. Definitions.
The capitalized terms used herein shall have the same definitions as set forth in the Lease, unless otherwise defined herein.
2. Expansion.
(a) Expansion
Premises. The term “Expansion Premises” is hereby defined to be and to mean that certain space located on the sixth
(6th) floor of Building 8 consisting of approximately 16,231 rentable square feet of space (which is the final agreement
of the parties and not subject to adjustment), as outlined on Exhibit A, attached hereto and incorporated herein
by this reference. Accordingly, effective as of the Thirteenth Amendment Commencement Date (defined below), the Total Premises,
as expanded, shall be deemed to consist of a collective total of approximately 322,781 rentable square feet of space.
(b) Thirteenth
Amendment Commencement Date. Landlord shall deliver the Expansion Premises to Tenant on April 1, 2018 (the “Thirteenth
Amendment Commencement Date”) in its present, as-is condition as of the Effective Date of this Amendment; provided the existing
tenant of the Expansion Premises surrenders the Premises on or before March 31, 2018. If Landlord is unable to deliver the Expansion
Premises in such condition on the Thirteenth Amendment Commencement Date solely as a result of the existing tenant holding over
beyond its current term which expires on March 31, 2018, Landlord shall use reasonable efforts at its sole cost to obtain exclusive
possession of the Expansion Premises and the Thirteenth Amendment Commencement Date shall be extended until such time as Landlord
obtains exclusive possession of the Expansion Premises (and Tenant shall have six (6) months from that date, as extended, to construct
the Tenant Improvements). However, if Landlord has obtained exclusive possession of the Expansion Premises before July 1, 2018
and the Thirteenth Amendment Commencement Date has not occurred by July 1, 2018, then Landlord shall pay Tenant [*] per day for
each day of delay, as liquidated damages for such delay. In addition, if Landlord has obtained exclusive possession of the Expansion
Premises before September 1, 2018 and the Thirteenth Amendment Commencement Date has not occurred by September 1, 2018, Tenant
shall have the right to terminate this Amendment by written notice to Landlord, whereupon this Amendment shall be deemed of no
further force and effect and Landlord shall reimburse Tenant for all of its actual out of pocket expenses incurred in connection
with this Amendment (but the Lease shall continue in full force and effect, unmodified by this Amendment). Tenant acknowledges
and agrees that the foregoing penalties shall only apply if Landlord has obtained exclusive possession of the Expansion Premises
by the above-mentioned dates and has failed to turn over possession to Tenant by the respective date.
If Tenant is allowed
to occupy, use, work in or otherwise enter the Expansion Premises prior to the Thirteenth Amendment Commencement Date, the terms
and conditions of the Lease as hereby amended shall apply, except that Tenant shall not be required to pay Rental for any period(s)
prior to the Thirteenth Amendment Rent Commencement Date (as defined below) for the Expansion Premises. Subject to the terms and
conditions of the Work Letter attached hereto as Exhibit B, Tenant shall be permitted entry onto the Expansion Premises
commencing on the Thirteenth Amendment Commencement Date for the purpose of conducting and performing (or causing to be performed)
the Tenant Improvements (as defined in the Work Letter), installing Tenant’s furniture, fixtures, and equipment, and upon
substantial completion of the Tenant Improvements, for all uses permitted by the Lease. The “Thirteenth Amendment Rent Commencement
Date” shall mean the date that is six (6) months after the Thirteenth Amendment Commencement Date, and accordingly, Tenant’s
obligation to pay Rental for the Expansion Premises commences on that date (even if Tenant obtains its certificate of occupancy
on an earlier date), subject to six (6) months of conditional abatement of Base Rental as further set forth in Section 3 below.
(c) Expansion
Term. The term “Expansion Term” is hereby defined to be and to mean that period of time commencing on the Thirteenth
Amendment Commencement Date and expiring contemporaneously with the Lease on the Expansion Expiration Date (i.e., January
31, 2028), as defined in Section 2(c) of the Ninth Amendment.
(d) Acceptance.
Effective on the Thirteenth Amendment Commencement Date, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
on the terms and conditions set forth in the Lease and herein, the Expansion Premises. Tenant shall accept the Expansion Premises
in its present “as is” condition as of the Effective Date of this Amendment. Tenant shall install the work set forth
in the Work Letter, attached hereto as Exhibit B and incorporated herein by this reference.
(e) Notwithstanding
anything herein to the contrary, if, in order for Tenant to receive a building permit for Tenant Improvements (as defined in Exhibit
B) or a certificate of occupancy or completion for the Tenant Improvements, any portion of the existing building systems
located outside of and serving any portion of the Expansion Premises or any portion of the existing common areas containing any
portion of the Expansion Premises are required by applicable governmental authority, to be made compliant with the currently applicable
building code or fire code or applicable requirements of the Americans with Disabilities Act (“ADA”), then Landlord
agrees that it is Landlord’s responsibility, at its cost, to perform the necessary work to make said portion of the existing
building systems and/or existing common areas compliant; however, Tenant acknowledges and agrees that Landlord is only responsible
for the building systems up to the point of common connection where the applicable portion of the Expansion Premises are located.
3. Base
Rental. Commencing on the Thirteenth Amendment Rent Commencement Date, Tenant shall pay to Landlord Base Rental for the
Expansion Premises (in addition to its Base Rental obligations for the original Premises), which shall be payable in monthly installments
as set forth below. As used in this Section 3, “Expansion Year” means the 12 month period commencing on the Thirteenth
Amendment Rent Commencement Date, and each consecutive 12 month period thereafter through the Expansion Expiration Date (and, therefore,
the final Expansion Year will contain less than 12 months).
EXPANSION PREMISES
| Expansion Year | |
Annual Rate/RSF | | |
Monthly Installment | |
1
(1st 6 months after the Thirteenth
Amendment Rent Commencement Date) | |
$ | [*] | | |
$ | [*] | * |
| 1 (2nd 6 months) | |
$ | [*] | | |
$ | [*] | |
| 2 | |
$ | [*] | | |
$ | [*] | |
| 3 | |
$ | [*] | | |
$ | [*] | |
| 4 | |
$ | [*] | | |
$ | [*] | |
| 5 | |
$ | [*] | | |
$ | [*] | |
| 6 | |
$ | [*] | | |
$ | [*] | |
| 7 | |
$ | [*] | | |
$ | [*] | |
| 8 | |
$ | [*] | | |
$ | [*] | |
| 9 | |
$ | [*] | | |
$ | [*] | |
| 10 | |
$ | [*] | | |
$ | [*] | |
* Such abatement shall apply solely to
payment of the monthly installments of Base Rental and shall not be applicable to any other charges, expenses or costs payable
by Tenant under the Lease or this Amendment, including but not limited to Tenant’s Percentage Share of Operating Expenses.
Landlord and Tenant agree that the abatement of Base Rental in this Section is conditional and is made by Landlord in reliance
upon Tenant’s faithful and continued performance of the terms, conditions and covenants of this Amendment and the Lease and
the payment of all monies due Landlord hereunder. In the event that Tenant defaults under the terms and conditions of the Lease
or this Amendment beyond any applicable notice and cure period resulting in the loss of Tenant’s right to possess the Total
Premises, Landlord shall have a claim for the unamortized portion of all conditionally abated rental (without limitation and in
addition to any and all other rights and remedies available to Landlord provided herein or at law and in equity).
Except as otherwise expressly set forth
herein, Base Rental shall be payable pursuant to the terms and conditions of Article 2 of the Original Lease.
4. Tenant's
Percentage Share and Operating Expenses. Beginning on the Thirteenth Amendment Rent Commencement Date, Tenant’s
Percentage Share, as defined in Section 2.3(c) of the Original Lease, shall be increased based upon an amount determined by (a)
the fraction, the numerator of which is the total number of Rentable Square Feet then leased by Tenant in Building 8, and the denominator
of which is the greater of (i) ninety-five percent (95%) of the total Rentable Square Feet in Building 8, or (ii) the total Rentable
Square Feet in Building 8 actually leased or occupied by tenants. Operating Expenses applicable to Building 8 for calendar year
2017 are currently estimated to be $[*] per rentable square foot of space.
5. Tenant's
Parking Spaces. Beginning on the Thirteenth Amendment Commencement Date and throughout the Expansion Term, Tenant shall
have the right to use an additional sixty-five (65) parking spaces (i.e., 4 parking spaces per 1,000 RSF of space in the
Expansion Premises), to be allocated as follows:
| (a) | Twenty-eight (28) uncovered unreserved parking spaces in the parking area around Building 8 at
no charge; |
| (b) | Thirteen (13) covered parking spaces in the Building 8 Garage at no charge; and |
| (c) | Twenty-four (24) parking spaces, which shall at Tenant’s election be either: (i) covered
parking spaces in the Building 8 Garage (“Paid Garage Spaces”) at the rate of [*] per parking space per month (“Monthly
Parking Rent”); or (ii) uncovered unreserved parking spaces in the parking area around Building 8 at no charge. If Tenant
elects to use the Paid Garage Spaces, Tenant’s obligation to pay Monthly Parking Rent for the Paid Garage Spaces shall be
abated through March 31, 2019, pursuant to the same conditions set forth in Section 3 of this Amendment with respect to the abatement
of Base Rental, and, accordingly, Tenant’s first payment of Monthly Parking Rent for the Paid Garage Spaces shall be due
on April 1, 2019. Tenant shall provide written notice to Landlord of its election hereunder on or before the Thirteenth Amendment
Commencement Date. |
6. Brokers.
Tenant hereby represents and warrants to Landlord that Tenant has not dealt with any real estate brokers or leasing agents, and
Landlord hereby represents and warrants to Tenant that CBRE, Inc. is the sole real estate broker or leasing agent representing
Landlord (“Broker”). No commissions are payable to any party claiming through Landlord or Tenant as a result of the
consummation of the transaction contemplated by this Amendment, except to Broker, as applicable. Landlord and Tenant hereby agree
to indemnify and to hold each other harmless against any loss, expense, or liability with respect to any claims for commissions
or brokerage fees arising from or out of any breach of the foregoing representation and warranty. Landlord shall pay all brokerage
commissions due to the Broker pursuant to a separate agreement.
7. Counterparts;
Electronic Signatures. This Amendment may be executed in counterparts, including both counterparts that are executed
on paper and counterparts that are in the form of electronic records and are executed electronically. An electronic signature
means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party
with the intent to sign such record, including facsimile or e-mail electronic signatures. All executed counterparts shall
constitute one agreement, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that
electronic records and electronic signatures, as well as facsimile signatures, may be used in connection with the execution of
this Amendment and electronic signatures, facsimile signatures or signatures transmitted by electronic mail in so-called pdf format
shall be legal and binding and shall have the same full force and effect as if a paper original of this Amendment had been delivered
and had been signed using a handwritten signature. Landlord and Tenant (i) agree that an electronic signature, whether digital
or encrypted, of a party to this Amendment is intended to authenticate this writing and to have the same force and effect as a
manual signature, (ii) intend to be bound by the signatures (whether original, faxed or electronic) on any document sent or delivered
by facsimile or, electronic mail, or other electronic means, (iii) are aware that the other party will rely on such signatures,
and (iv) hereby waive any defenses to the enforcement of the terms of this Amendment based on the foregoing forms of signature.
If this Amendment has been executed by electronic signature, all parties executing this document are expressly consenting under
the Electronic Signatures in Global and National Commerce Act ("E-SIGN"), and Uniform Electronic Transactions Act ("UETA"),
that a signature by fax, email or other electronic means shall constitute an Electronic Signature to an Electronic Record under
both E-SIGN and UETA with respect to this specific transaction.
8. Miscellaneous.
With the exception of those matters set forth in this Amendment, Tenant's leasing of the Total Premises (including the Expansion
Premises set forth herein) shall be subject to all terms, covenants and conditions of the Lease. In the event of any express conflict
or inconsistency between the terms of this Amendment and the terms of the Lease, the terms of this Amendment shall control and
govern. Except as expressly modified by this Amendment, all other terms and conditions of the Lease are hereby ratified and affirmed.
The parties acknowledge that the Lease is a valid and enforceable agreement and that, as of the date hereof to the best of Tenant’s
actual knowledge, Tenant holds no claims against Landlord or its agents which might serve as the basis of any other set-off against
accruing rent and other charges or any other remedy at law or in equity.
9. Right
of Offer.
(a) Offer
Space. If at any time during the Expansion Term, all or any portion of Suite 602 comprising an agreed upon 4,021 rentable square
feet, or the hallway to be converted by Landlord to 490 rentable square feet (both as shown on Exhibit A), becomes
“available for lease” (i.e., Landlord desires to actively market such space), Landlord shall give Tenant written notice
(“Sixth Floor Offer Space Notice”) of such event. Such notice shall identify the location, configuration and size of
the space (“Sixth Floor Offer Space”). The applicable business terms under which Landlord will lease such space (such
as duration, commencement date, concessions, base rent, and additional rent), shall be the same terms applicable to the Expansion
Premises as set forth in this Amendment. Within ten (10) business days after the date that any Sixth Floor Offer Space Notice is
given to Tenant, Tenant shall give Landlord written notice (“Sixth Floor Offer Space Acceptance Notice”) of its election
to lease such Sixth Floor Offer Space and the parties shall thereafter execute an amendment to the Lease incorporating such Sixth
Floor Offer Space as part of the Total Premises. Space shall not be considered “available for lease” if it is leased
by another tenant. Notwithstanding the foregoing, Landlord shall keep Tenant apprised as to the status of all of the Sixth Floor
Offer Space so that Tenant has advance notice as to when all or any portion of the Sixth Floor Offer Space becomes “available
for lease.”
(b) Failure
to Exercise. In the event that Tenant fails to exercise its right as aforesaid within ten (10) business days of the date the
Sixth Floor Offer Space Notice is given to Tenant or, in the event Tenant shall have exercised its right and Tenant shall not have
executed an amendment of this Lease as aforesaid within ten (10) business days from the date the Tenant is given such an amendment,
Tenant shall be deemed to have waived its right under this Section for a period of one hundred eighty (180) days beginning on the
expiration of the applicable ten (10) business day period. Except for such waiver, Tenant’s rights under this Section are
continuous and, therefore, if the lease in favor of a third party of the Sixth Floor Offer Space expires or otherwise terminates,
and Landlord desires to accept an offer to lease such Sixth Floor Offer Space after the expiration of the above-referenced one
hundred eighty (180) day period, Landlord shall again give Tenant notice of its right to lease such Sixth Floor Offer Space.
(c) No
Default. Tenant shall be deemed to have waived its rights under this Section in the event that Tenant is in default under the
Lease beyond any applicable notice and grace period as of the date of either the Sixth Floor Offer Space Notice or Sixth Floor
Offer Space Acceptance Notice.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF,
this Amendment to Lease is dated effective as of the date and year first written above.
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WITNESS: |
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LANDLORD: |
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SPUS7 MIAMI ACC, LP, |
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a Delaware limited partnership |
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| By: |
/s/Xxxxx Xxxxxx |
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By: |
/s/Xxxx Xxxxxxx |
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| Name: |
Xxxxx Xxxxxx |
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Name: |
Xxxx Xxxxxxx |
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Title: |
Vice President |
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| By: |
/s/Xxxxxx Xxx |
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Date: |
12/4/2017 |
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| Name: |
Xxxxxx Xxx |
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| By: |
/s/Xxxxx Xxxxxx |
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By: |
/s/Xxxx Xxx |
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| Name: |
Xxxxx Xxxxxx |
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Name: |
Xxxx Xxx |
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Title: |
Vice President |
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| By: |
/s/Xxxxxx Xxx |
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Date: |
12/4/2017 |
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| Name: |
Xxxxxx Xxx |
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TENANT: |
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NCL (BAHAMAS) LTD., |
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a Bermuda company, d/b/a Norwegian Cruise Line |
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| By: |
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By: |
/s/Xxxxx Xxxx |
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| Name: |
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Name: |
Xxxxx Xxxx |
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Title: |
Executive Vice President and |
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| By: |
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Chief Financial Officer |
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| Name: |
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Date: |
12/4/2017 |
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CONSENT OF GUARANTOR
The undersigned Guarantor under the original
Guaranty of Lease dated November 27, 2006 (the "Guaranty"), does hereby consent to the foregoing Amendment. Guarantor
acknowledges and agrees that the Guaranty is in full force and effect and shall continue to apply to the Lease, as amended by this
Amendment.
NCL CORPORATION LTD.,
a Bermuda company
Name: Xxxxx Xxxx
Title: Executive Vice President and
Chief Financial Officer
EXHIBIT A
Floor Plan of 6th Floor of
Building 8
[Note: Expansion
Premises is indicated as “Available Premises” in below Plan.]
EXHIBIT B
WORK LETTER
This is the Work Letter
referred to in and specifically made a part of the Thirteenth Amendment to Lease (hereinafter, the “Amendment”) to
which this Exhibit B is annexed, covering the Expansion Premises, as more particularly described in the Amendment.
Landlord and Tenant agree as follows:
1. Defined
Terms. The following defined terms shall have the meaning set forth below and, unless provided to the contrary herein, the
remaining defined terms shall have the meaning set forth in the Amendment:
| Landlord's Representative: |
Xxxxxxx
Xxxxx and/or Xxx Xxxxxx. Landlord has designated Landlord's Representative as its sole representative with respect to the matters
set forth in this Work Letter, who shall have full authority and responsibility to act on behalf of Landlord as required in this
Work Letter. Landlord shall not change Landlord's Representative except upon prior written notice to Tenant’s Representative.
Tenant acknowledges that neither Tenant's architect nor any contractor engaged by Tenant is Landlord's agent and neither entity
has authority to enter into agreements on Landlord's behalf or otherwise bind Landlord. |
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| Tenant's Representative: |
Xxxx
Xxxxx. Tenant has designated Tenant's Representative as its representative with respect to the matters set forth in this Work
Letter, who shall have full authority and responsibility to act on behalf of Tenant as required in this Work Letter. Tenant shall
not change Tenant's Representative except upon prior written notice to Landlord’s Representative.
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| Allowance: | [*] (i.e., $[*] per RSF in the Expansion Premises). Tenant may use the Allowance towards design,
architectural and engineering plans, specialty consultants, demolition, and permitting and expeditor fees. Tenant may use an amount
up to [*] (i.e., [*]%) of the Allowance) towards Tenant’s soft costs, including Tenant’s furniture, fixtures, and equipment,
data cabling and wiring, telecommunications systems, and relocation expenses. Additionally, Tenant shall be permitted to apply
up to a maximum of [*] (i.e., $[*] per RSF in the Expansion Premises) of the Allowance against the next payment(s) of Base Rental
and Tenant’s Percentage Share of Operating Expenses due, until such sum is exhausted. If Tenant elects to apply any amount
of the Allowance towards the payment of Base Rental and Operating Expenses, the amount of the Allowance available for the Tenant
Improvements shall be reduced by such amount. Any portion of the Allowance not used and a request therefor submitted in writing
to Landlord’s Representative on or before September 30, 2018 shall be deemed to be forfeited by Tenant. |
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| Construction
Management Fee: | None. |
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| General Contractor: | A
general contractor approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. |
2. Landlord’s
Work. Subject to Section 2(d) of the Amendment, Tenant accepts the Expansion Premises in its current “AS IS” condition
and acknowledges that Landlord shall have no obligation to do any work in or on the Expansion Premises to render it ready for Tenant's
use or occupancy.
3. Tenant
Improvements. The “Tenant Improvements” shall mean the interior walls, partitions, doors, door hardware, wall coverings,
wall base, counters, lighting fixtures, electrical and telephone wiring, cabling for computers, electrical outlets, ceilings, floor
and window coverings, that portion of the HVAC system located within any portion of the Expansion Premises, that portion of the
fire sprinklers system located within any portion of the Total Premises (including the Expansion Premises), and other items of
general applicability that Tenant desires to be installed in the interior of the Expansion Premises. Tenant shall promptly commence
and diligently prosecute to full completion Tenant Improvements in accordance with the Drawings. The parties agree that no demolition
work or other Tenant Improvements shall be commenced within the Expansion Premises until such time as Tenant’s Representative
has provided to Landlord’s Representative copies of the building permits required to be obtained from all applicable governmental
authorities. All materials, work, installations, equipment and decorations of any nature whatsoever brought on or installed in
the Expansion Premises before the commencement of the Expansion Term or during the Expansion Term shall be at Tenant's risk, and
neither Landlord nor any party acting on Landlord's behalf shall be responsible for any damage thereto or loss or destruction thereof
due to any reason or cause whatsoever, excluding by reason of Landlord's negligence or willful or criminal misconduct.
4. Drawings.
Tenant shall engage and pay for the services of a licensed architect to prepare a space layout, drawings and specifications for
all Tenant Improvements (“Drawings”), which architect shall be subject to Landlord’s Representative's reasonable
approval, not to be unreasonably withheld, conditioned or delayed (“Architect”). Tenant’s Representative shall
devote such time in consultation with the Architect as shall be necessary to enable the Architect to develop complete and detailed
architectural, mechanical and engineering drawings and specifications, as necessary, for the construction of Tenant Improvements,
showing thereon all Tenant Improvements. Tenant hereby acknowledges and agrees that it is Tenant's sole and exclusive responsibility
to cause the Expansion Premises and the Drawings to comply with all applicable laws, including the Americans with Disabilities
Act and other ordinances, orders, rules, regulations and requirements of all governmental authorities having jurisdiction thereof.
5. Landlord's
Approval. On or before the applicable Time Limit set forth below, Tenant’s Representative shall submit to
Landlord’s Representative an electronic PDF copy, electronic CAD copy and hard copy of the complete and final Drawings for
Tenant Improvements. The Drawings shall be subject to the approval of Landlord’s Representative, which approval shall not
be unreasonably withheld, conditioned or delayed. If Landlord’s Representative should disapprove such Drawings, Landlord’s
Representative shall specify to Tenant’s Representative in writing, the reasons for its disapproval and Tenant’s Representative
shall cause the same to be revised to meet the mutual reasonable satisfaction of Landlord’s Representative and Tenant’s
Representative and shall resubmit the same to Landlord’s Representative, as so revised, on or before the applicable Time
Limit set forth below.
6. Changes.
Tenant’s Representative may request reasonable changes in the Drawings; provided, however, that (a) no change shall be made
to the Drawings without Landlord's Representative's prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed, (b) no such request shall effect any structural change in the Building or otherwise render any portion
of the Expansion Premises or the Building within which such portion is situated in violation of applicable laws, (c) Tenant
shall pay any additional costs required to implement such change, including, without limitation, architecture and other consultant
fees, and increases in construction costs, and (d) such requests shall constitute an agreement by Tenant to any delay in completion
caused by Landlord's reviewing and processing such change. If Tenant’s Representative requests or causes any change, addition
or deletion to the Expansion Premises to be necessary after approval of the Drawings, a request for the change shall be submitted
to Landlord's Representative, accompanied by revised plans prepared by the Architect, all at Tenant's sole expense.
7. Tenant's
Contractor’s Work. It is understood and agreed by the parties that, as hereinafter set forth, Tenant has elected
to retain a General Contractor and arrange for the construction and installation of Tenant Improvements itself in a good and workmanlike
manner by contractors and subcontractors. On or before the applicable Time Limit set forth below, Tenant’s Representative
shall submit to Landlord’s Representative the names of the General Contractor, electrical, ventilation, plumbing and heating
subcontractors (hereinafter “Major Subcontractors”), as applicable, for Landlord’s Representative's approval,
which approval shall not be unreasonably withheld, conditioned or delayed. If Landlord’s Representative shall reject any
Major Subcontractor, Landlord’s Representative shall advise Tenant’s Representative in writing of the reason(s) and
Tenant’s Representative shall choose another Major Subcontractor. Along with Tenant’s Representative's notice of its
Major Subcontractors, Tenant’s Representative shall notify Landlord’s Representative of its estimate of the total costs
for Tenant Improvements.
8. Tenant's
Construction of Tenant Improvements.
(a) Payment;
Liens. Tenant shall promptly pay any and all costs and expenses in connection with or arising out of the performance of Tenant
Improvements and shall furnish to Landlord’s Representative evidence of such payment upon request. In the event any lien
is filed against the Building within which any Tenant Improvements are performed by Tenant as set forth herein, or any portion
thereof or against Tenant's leasehold interest therein, the provisions of Article 5.1(g) of the Original Lease shall apply.
(b) Indemnity.
Tenant shall indemnify, defend (with counsel reasonably satisfactory to Landlord and Tenant) and hold Landlord harmless from and
against any and all suits, claims, actions, loss, cost or expense (including claims for workers' compensation, attorneys' fees
and costs) based on personal injury, property damage or contract claims (including, but not limited to claims for breach of warranty)
arising from Tenant Improvements. Tenant shall repair or replace (or, at Landlord's election, reimburse Landlord for the commercially
reasonable cost of repairing or replacing) any portion of the Building within which any Tenant Improvements are performed by Tenant
as set forth herein, or item of Landlord's equipment or any of Landlord's real or personal property damaged, lost or destroyed
by Tenant’s contractors during the construction of Tenant Improvements.
(c) Contractors.
The Major Subcontractors employed by Tenant and any subcontractors thereof shall be (i) duly licensed in the state in which
the Expansion Premises are located, and (ii) except as otherwise approved herein, subject to Landlord’s Representative's
prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. On or before ten (10) business
days prior to the commencement of any construction activity in the applicable portion of the Expansion Premises, Tenant and Tenant's
contractors shall obtain and provide Landlord’s Representative with certificates evidencing Workers' Compensation, public
liability and property damage insurance in amounts and forms and with companies reasonably satisfactory to Landlord’s Representative.
If Landlord’s Representative should disapprove such insurance, Landlord’s Representative shall specify to Tenant’s
Representative the reasons for its disapproval within five (5) business days after delivery of such certificates. Tenant's agreement
with its contractors shall require such contractors to provide daily clean up of the construction area to the extent such clean
up is necessitated by the construction of Tenant Improvements, and to take reasonable steps to minimize interference with other
tenants' use and occupancy of the Building. Nothing contained herein shall make or constitute Tenant as the agent of Landlord.
Tenant and Tenant's contractors shall comply with any other reasonable rules, regulations or requirements that Landlord’s
Representative may impose. Notwithstanding anything to the contrary, Tenant’s contractors shall not be charged for the use
of parking, utilities, elevators use or security costs. To the extent reasonably required by Tenant during construction of Tenant
Improvements, Landlord shall use commercially reasonable efforts to provide Tenant with space for a storage container, the exact
location and size of which shall be subject to Landlord’s reasonable approval and discretion. Tenant shall be responsible
to ensure that the storage container satisfies all applicable laws. The storage container may only be used for temporarily storing
building materials or equipment which will be incorporated into the Expansion Premises. All of the foregoing shall be maintained
by Tenant in a neat and orderly manner and shall not affect other tenants in the Project. Tenant shall be solely responsible for
all costs in connection with the foregoing and the same shall only be in place for a reasonable period of time as necessary to
facilitate the Tenant Improvements.
(d) Use
of Common Areas. During the construction period and installation of fixtures period, Tenant shall be allowed to use, at no
cost to Tenant, a freight elevator for the purpose of hoisting materials, equipment and personnel to the Expansion Premises. Also
during the construction period, Tenant shall ensure that the Building and all common areas and the Expansion Premises are kept
in a clean and safe condition at all times. Further, all construction activities shall be conducted so as to use reasonable efforts
to minimize interference with the use and occupancy of the Building by the tenants thereof. Such entry shall be deemed to be under
all the terms, covenants, provisions and conditions of the Lease, as amended.
(e) Coordination.
All work performed by Tenant shall be coordinated with Landlord’s Representative. Tenant’s Representative shall use
commercially reasonable efforts to timely notify and invite Landlord’s Representative to construction meetings (with contractors,
engineers, architects and others), and supply all documentation reasonably requested by Landlord’s Representative.
(f) Assumption
of Risk. All materials, work, installations, equipment and decorations of any nature whatsoever brought on or installed in
the Expansion Premises pursuant to the provisions of this Work Letter before the commencement of the Expansion Term or throughout
the Expansion Term shall be at Tenant's risk, and neither Landlord nor any party acting on Landlord's behalf shall be responsible
for any damage thereto or loss or destruction thereof due to any reason or cause whatsoever, excluding by reason of Landlord or
such other party's negligence or willful or criminal misconduct.
9. Time
Limits. The following maximum time limits and periods shall be allowed for the indicated matters:
| Action |
|
Time Limit |
| |
|
|
| Tenant’s Representative submits Drawings to Landlord’s
Representative for review and approval. |
|
On or before 60 days after the date of mutual execution
of the Amendment. |
| |
|
|
| Landlord’s Representative notifies Tenant’s
Representative and the Architect of its approval of the Drawings with any required changes in detail. |
|
On or before 10 business days after the date of Landlord’s
Representative's receipt of the Drawings. |
| |
|
|
| Tenant’s Representative notifies Landlord’s
Representative of its selection of major subcontractors. |
|
On or before 60 days after the date of mutual execution
of the Amendment. |
| |
|
|
| Landlord’s Representative approves/disapproves
Tenant's major subcontractors. |
|
On or before 7 business days after the date of Landlord’s
Representative's receipt of the list of major subcontractors. |
| |
|
|
| If applicable, Landlord’s Representative and
Tenant’s Representative mutually approve the final revised list of major subcontractors. |
|
On or before 3 business days after the date of Landlord’s
Representative's receipt of a revised list of major subcontractors. |
| |
|
|
| If applicable, Landlord’s Representative and
Tenant’s Representative mutually approve the final revised Drawings. |
|
On or before 5 business days after the date of Landlord’s
Representative's receipt of revised Drawings. |
| |
|
|
| Tenant’s Representative submits Drawings for
building permit, if applicable. |
|
On or after the date Tenant’s Representative
and Landlord’s Representative mutually approve the final, revised Drawings. |
| |
|
|
| Tenant allowed access to the applicable portion of
the Expansion Premises to commence construction of Tenant Improvements |
|
After providing copies of the building permit(s) and
the contractors meeting all of Landlord’s Representative’s insurance requirements. |
| |
|
|
| Allowance Expiration Deadline. |
|
September 30, 2018. |
Except as may be otherwise specifically
provided for herein, in all instances where either Tenant’s Representative's or Landlord’s Representative's approval
is required, if no written notice of disapproval is given within the applicable Time Limit, at the end of such period the applicable
party shall be deemed to have given its approval and the next succeeding time period shall commence. Any delay in any of the foregoing
dates (including any “re-do”, continuation or abatement of any item due to Tenant’s Representative's or Landlord’s
Representative's disapproval thereof) shall automatically delay all subsequent deadlines by a like amount of time.
10. Allowance.
Landlord shall contribute to the costs and expenses of all costs for the planning and design of Tenant Improvements, including
all permits, licenses and construction fees and constructing Tenant Improvements in an amount not to exceed the Allowance. If the
final costs for Tenant Improvements exceed the Allowance, Tenant shall be responsible for such excess costs. If the total cost
of performing Tenant Improvements is less than the Allowance, portions of the Allowance may be used towards Tenant's soft costs
and existing Lease or Amendment obligations in accordance with Section 1 of this Work Letter. Landlord shall pay the Allowance
to Tenant consistent with the terms and conditions of this Section. After Tenant Improvements are complete (as provided under Section 11
hereof), Tenant’s Representative may submit to Landlord’s Representative a request in writing (“Draw Request”)
for the Allowance which request shall include: (a) “as-built” drawings showing all of Tenant Improvements; (b)
a detailed breakdown of Tenant's final and total construction costs, together with receipted invoices showing payment thereof;
(c) a certified, written statement from the Architect that all of Tenant Improvements has been completed in accordance with the
Drawings; (d) all required AIA forms, supporting final lien waivers, and releases executed by the Architect, General Contractor,
the Major Subcontractors and all subcontractors and suppliers in connection with Tenant Improvements; (e) a copy of a certificate
of occupancy or amended certificate of occupancy required with respect to the Expansion Premises, if applicable, together with
all licenses, certificates, permits and other government authorizations necessary in connection with Tenant Improvements and the
operation of Tenant's business from the Expansion Premises; and (f) proof reasonably satisfactory to Landlord’s Representative
that Tenant has complied with all of the conditions set forth in this Work Letter and has satisfactorily completed Tenant Improvements.
Upon Landlord's Representatives receipt and approval of the Draw Request, Landlord shall pay the balance of the Allowance. Payment
by Landlord shall be made within thirty (30) days, unless Landlord’s Representative notifies Tenant’s Representative,
in writing, of its rejection (and the reasons therefor) of any or all of the Draw Request. To the extent Landlord does not so reject
any portion of said Draw Request, Landlord shall timely pay the Draw Request. Notwithstanding the foregoing to the contrary, but
subject to Section 1 of this Work Letter, Landlord will pay the amount of the Allowance to Tenant in progress payments (not more
often than monthly). Such progress payments will be made not later than thirty (30) days after receipt by Landlord’s Representative
from Tenant’s Representative of copies of Tenant’s invoices from its Architect or General Contractor together with
a certificate from Tenant’s Representative indicating that the work to which such invoices relate has been substantially
completed and/or the materials to which such invoices relate have been installed in, or delivered to, the applicable portion of
the Expansion Premises. Such progress payments will be made payable to Tenant and will be for the undisputed amount of the submitted
invoices, less a ten percent (10%) retainage (which shall not be released until such time as Landlord’s Representative has
received the Draw Request). As a condition precedent to Landlord’s issuing any such progress payment subsequent to the first
such progress payment, Tenant’s Representative will deliver to Landlord’s Representative an original lien waiver from
its General Contractor waiving any claim for a mechanic’s or materialman’s lien with respect to the labor and materials
reflected in the invoices submitted for the immediately preceding progress payment.
11. Substantial
Completion. Tenant Improvements shall be deemed substantially complete when all work called for by the Drawings has been finished
and the Expansion Premises is ready to be used and occupied by Tenant, even though minor items may remain to be installed, finished
or corrected (“Substantial Completion Date” or the “Date of Substantial Completion”). Tenant shall cause
the contractors to diligently complete any items of work not completed when the Expansion Premises are substantially complete.
Substantial completion shall have occurred notwithstanding punch list items. Promptly after the Substantial Completion Date, the
parties will execute an instrument in the form attached hereto as Exhibit C, setting forth the applicable Thirteenth
Amendment Commencement Date, so that said date is certain and such instrument, when executed, is hereby made a part of this Amendment
and incorporated herein by reference.
12. No
Representations or Warranties. Notwithstanding anything to the contrary contained in the Lease, as amended, or herein, Landlord's
participation in the preparation of the Drawings, the cost estimates for Tenant and the construction of Tenant Improvements shall
not constitute any representation or warranty, express or implied, that (i) the Drawings are in conformity with applicable
governmental codes, regulations or rules or (ii) Tenant Improvements, if built in accordance with the Drawings, will be suitable
for Tenant's intended purpose. Landlord's obligations shall be to review the Drawings; and any additional cost or expense required
for the modification thereof to more adequately meet Tenant's use, whether during or after construction thereof, shall be borne
entirely by Tenant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
EXHIBIT C
CONFIRMATION OF LEASE TERMS AND DATES
| Re: | Thirteenth Amendment to Lease dated November 30, 2017
(“Amendment”), between SPUS7 MIAMI ACC, LP, a Delaware limited partnership (“Landlord”), and NCL (BAHAMAS)
LTD., a Bermuda company, d/b/a Norwegian Cruise Line (“Tenant”) for the premises located at 0000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxx, Xxxxxxx 00000 (“Expansion Premises”) |
The undersigned, as Tenant, hereby confirms
as of this _____ day of _________, 20___, the following:
| 1. | The Substantial Completion Date is hereby deemed to be
_______________________. |
| 2. | The Thirteenth Amendment Commencement Date is hereby
deemed to be _____________. |
| 3. | The Thirteenth Amendment Rent Commencement Date is hereby
deemed to be _______________. |
| 4. | The Expansion Expiration Date is hereby deemed to be
January 31, 2028. |
| 5. | The schedule of Base Rental is: |
EXPANSION PREMISES
| Dates | |
Annual Rate/RSF | | |
Monthly Installment | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | * |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
| ________ - ________ | |
$ | [*] | | |
$ | [*] | |
* Abatement subject to conditions set forth
in the Amendment.
6. Tenant
has the right to use ____ parking spaces associated with the Expansion Premises. Of which, _____ are located in the covered portion
of the parking garage adjacent to Building 8, _____ are uncovered parking spaces in the parking lot associated with Building 8
and ____ are located at ____________________________________.
7. All
alterations and improvements required to be performed by Landlord pursuant to the terms of the Amendment to prepare the Expansion
Premises for Tenant’s initial occupancy have been satisfactorily completed. There are no offsets or credits against Rent
or other amounts owed by Tenant to Landlord, except: ____________________________________________________. As of the date hereof,
Landlord has fulfilled all of its obligations under the Lease, as amended. The Lease, as amended, is in full force and effect and
has not been modified, altered, or amended. There are no defaults by Landlord.
[SIGNATURE ON FOLLOWING PAGE.]
TENANT:
NCL (BAHAMAS) LTD.,
a Bermuda company, d/b/a Norwegian Cruise
Line
