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Exhibit 10.50
LEASE AGREEMENT
LANDLORD:
IRRADIO HOLDINGS, LTD.
a Florida limited partnership
TENANT:
SPANISH BROADCASTING SYSTEM, INC.
a Florida corporation
SUITE NO. PENTHOUSE II
DATE: _____________________, 2000
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IRRADIO HOLDINGS, LTD.
OFFICE BUILDING LEASE AGREEMENT
LESSEE: SPANISH BROADCASTING SYSTEM, INC.
TABLE OF CONTENTS
Contents Page
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1.01 Leased Premises 1
1.02 Use of Additional Areas 1
1.03 Term 2
2.01 Fixed Minimum Annual Rent 2
2.02 Additional Rent and Operating Expenses 3
2.03 Additional Rent 6
3.01 Control of Common Areas by Landlord 6
3.02 Licenses 7
4.01 Services 8
4.02 Directories 9
5.00 Use 9
6.01 Liability Insurance 9
6.02 Contents Insurance 9
6.03 Special Policy Provisions 9
6.04 Increase in Fire Insurance Premium 10
6.05 Indemnification 10
6.06 Mutual Waiver of Subrogation 10
7.01 Fire or Other Casualty 11
7.02 Condemnation 13
8.01 Events of Default 15
8.02 Landlord's Remedies and Obligations in
Event of Tenant's Default 15
8.03 Landlord's Lien 18
8.04 Waiver of Defenses and Jury Trial 18
8.05 Rights Cumulative 19
8.06 Attorneys' Fees 19
8.07 Notice of Default 19
8.08 Expenses of Enforcement 19
8.09 Surrender and Holding Over 20
9.00 Alterations 20
10.00 Trade Fixtures 21
11.00 Quiet Enjoyment 21
12.00 Maintenance 21
13.00 Signs 22
14.00 Parking 23
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Table of Contents
Page Two
15.01 Memorandum of Lease 23
15.02 Notices 24
15.03 Access to Leased Premises 25
15.04 Assignment and Subletting 25
15.05 Subordination and Attornment 26
15.06 Mechanic's Lien 27
15.07 Entire Agreement 28
15.08 No Partnership 28
15.09 Captions and Section Numbers 28
15.10 Partial Invalidity 28
15.11 Governing Law 28
15.12 Waiver 29
15.13 Accord and Satisfaction 29
15.14 Successors and Assigns 29
15.15 Brokerage Indemnity 29
15.16 Condition of Leased Premises 30
15.17 Taxes 30
15.18 Prior Occupancy 30
15.19 Time and Consent 30
15.20 Leasehold Improvements 30
15.21 Security Deposit 31
15.22 Hazardous Waste 32
15.23 Approval of Lender 32
15.24 Estoppel Statement 32
15.25 Rules and Regulations 33
15.26 Guaranty 33
15.27 Radon Gas Disclosure 33
Exh. A Floor Plan
Exh. B Legal Description
Exh. C Work Letter
Exh. D Rules and Regulations
Exh. E Guaranty
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OFFICE BUILDING LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 14 day of December, 2000, by and between
IRRADIO HOLDINGS, LTD., a Florida limited partnership, having its principal
place of business at 2601 South Bayshore Drive, 9th Floor, Miami, Florida 33133
("Landlord"), and SPANISH BROADCASTING SYSTEM, INC., a Florida corporation
("Tenant").
ARTICLE I
BASIC LEASE PROVISIONS
Section 1.01 Leased Premises:
Subject to and upon the terms, provisions, covenants and conditions
hereinafter set forth, and each in consideration of the duties, covenants and
obligations of the other hereunder, Landlord does hereby lease, demise and let
to Tenant and Tenant does hereby lease, demise and let from Landlord those
certain premises (hereinafter called the "Leased Premises") located in the
building known as the Terremark Centre (hereinafter called the "Building")
located at 2601 South Bayshore Drive, Miami, Florida, 33133, subject Leased
Premises being more particularly described as follows:
Penthouse II on the 20th Floor, the approximate boundaries and location of
which are shown on the floor plan attached hereto as Exhibit "A" and made a
part hereof.
The parties agree that the Leased Premises consist of Thirteen Thousand
Nine Hundred Fifty-three (13,953) square feet of leasable space. The Leased
Premises are located upon a portion of that real property legally described in
Exhibit "B", attached hereto and made a part hereof (hereinafter called the
"Land"). The Land also includes Townhouse improvements which are not part of
the Building (the "Townhouses"). The Building includes an adjoining garage but
the garage (the "Garage") is not included in Building leasable square footage.
Section 1.02 Use of Additional Areas:
The use and occupation by Tenant of the Leased Premises shall include the
non-exclusive use, in common with others entitled thereto, of the common areas,
employees' parking areas, service roads, loading facilities, sidewalks and
visitor car parking areas as such common areas now exist or as such common
areas may hereafter be altered, modified, reduced or constructed, and other
facilities as may be designated from time to time by Landlord, subject however
to the terms and conditions of this Lease and to the Rules and Regulations for
the use thereof as prescribed from time to time by Landlord and the
Please Initial:
/s/ [illegible]
Landlord: /s/ B /s/
_______ ______
Tenant: /s/ Jay /s/
_________ ______
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security rights of other tenants
Section 1.03 Term:
The term of this Lease shall be for ten years commencing on November 1,
2000 ("Commencement Date") and ending on October 31, 2010 hereinafter called
the "Lease Term" or "Term"). This Lease may be sooner terminated as provided
herein.
A R T I C L E II
RENT
Section 2.01 Fixed Minimum Annual Rent: (See Addendum to Lease)
(a) Tenant shall pay Landlord as Fixed Minimum Annual Rent the sum of Four
Hundred Eighteen Thousand Five Hundred Ninety and 00/100 Dollars ($418,590.00)
per annum, (subject to increases as provided in Section 2.01(b) hereof),
payable to Landlord in twelve (12) equal monthly installments initially, of,
Thirty Four Thousand Eight Hundred Eighty-two and 50/100 Dollars ($34,882.50)
(subject to increases as provided in Section 2.01(b) hereof), plus applicable
Florida Sales Tax, on or before the first (1st) day of each month in advance,
at the office of Landlord, above designated, or to such other recipient or
place as shall be designated by Landlord from time to time, without any prior
demand therefor, and without any deduction, offset or counterclaim whatsoever,
except as specifically herein permitted.
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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(c) Tenant shall pay the Fixed Minimum Annual Rent in twelve (12) equal
installments, due on the first (1st) day of each month. If the Fixed Minimum
Annual Rent and the Additional Rent under this Lease is due on a day other than
the first (1st) day of a month, Tenant shall pay such rent for the fractional
month on a per diem basis (calculated on the basis of a thirty (30) day month)
payable on the day Fixed Minimum Annual Rent is due under the terms of this
Lease. Any rental payment hereunder for any other fractional month shall
likewise be calculated and paid on a per diem basis.
Section 2.02 Additional Rent and Operating Expenses:
(a) Definitions: For purposes of this Section and other provisions of this
Lease:
(1) The term "Tenant's Proportionate Share" shall mean that fraction,
the denominator of which is the total number of leasable square feet in the
Building, which is deemed to be a total of Two Hundred Ninety Four Thousand
(294,000) square feet, and the numerator of which is (13,953) which is the total
number of square feet which is hereby deemed to be leased and allocated to
Tenant and which includes an allocation for common areas of the Building. 4.746
(2) The term "Additional Rent" shall include Tenant's Proportionate
Share of "Excess Operating Expenses" (as such term is defined is subparagraph
"(c)" hereof).
(b) For purposes of this Section, the Building's Operating Expenses shall
mean all expenses paid or incurred by Landlord or on Landlord's behalf with
respect to the repair, maintenance and operation of the Land and Building,
including, but not limited to, the following: (i) salaries, wages, medical,
surgical, union
Please Initial:
Landlord: Illegible
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Tenant: Illegible
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and general welfare benefits (including, without limitation, group life
insurance) and pension payments of full-time employees of Landlord engaged
exclusively in the repair, operation and maintenance of the Land or the
Building; (ii) payroll taxes, worker's compensation, uniforms and related
expenses for employees; (iii) the cost of all charges for security systems,
alarm systems, guard service, shuttle service, garbage collection, water, sewer,
gas, heat, ventilation, air-conditioning, electricity and other utilities,
including any taxes on such utilities; (iv) the cost of all charges for casualty
and liability insurance carried by Landlord with regard to the Land and Building
and maintenance or operation thereof; (v) the cost of supplies (including,
without limitation, cleaning supplies), tools, materials and equipment and sales
and other taxes thereon; (vi) depreciation of hand tools and other movable
equipment used in repair, maintenance or operation of the Building; (vii) the
cost of all charges for window and other cleaning and janitorial and security
services furnished by Landlord; (viii) amounts charged to Landlord by
contractors for services, materials and supplies furnished in connection with
the operation, maintenance or repair of any part of the Building or the heating,
air conditioning, ventilating, plumbing, electrical, elevator, and other systems
of the Building; (ix) non-capitalized repairs, replacements, alterations and
improvements to the Building or the Land in accordance with generally accepted
accounting principles; (x) management fees not to exceed four percent (4%) of
gross receipts; (xi) the cost of any capital improvements to the Building or of
any machinery or equipment installed in the Building which is made or becomes
operational, as the case may be, after the expiration of the first (1st) lease
year, to the extent of such cost, amortized over the useful life of the
improvement, machinery or equipment (as reasonably estimated by Landlord); (xii)
legal, accounting and other professional fees incurred in connection with the
operation, maintenance and management of the Land and Building; (xiii) painting,
refurbishing, recarpeting or redecorating any portion of the Building; (xiv)
Taxes; and (xv) all other charges allocable to the repair, replacement,
operation, maintenance and management of the Building or the Land in accordance
with generally accepted accounting principles.
(c) Notwithstanding the above, the following are excluded from the
definition of Operating Expenses: (i) depreciation (except as provided above);
(ii) interest on and amortization of debts; (iii) leasehold improvements made
for tenants of the Building; (iv) income taxes; (v) refinancing costs; (vi) the
cost of any work or services performed for or separately charged to any
tenant(s) of the Building (including Tenant); (vii) the cost of any repair or
replacement (other than those described in (ix) and (xi) above) which would be
required to be capitalized under generally accepted accounting principles;
(viii) salaries and fringe benefits for executives of Landlord; (ix) cost of
repair or replacement incurred by reason of fire or other casualty, or caused
by condemnation to the extent reimbursed by insurance or condemnation award;
(x) advertising and promotional expenditures; (xi) any cost or expense for
which Landlord is reimbursed by any other tenant or by insurance or condemnation
proceeds or otherwise; and (xii) leasing commissions. Notwithstanding anything
to the contrary contained herein, any cost of Landlord to make improvements in
tenants' spaces shall not be deemed to be an Operating Expense.
(d) The term "Taxes" shall mean: (i) the aggregate amount for which the
Building and the Land are
Please initial:
Landlord: [illegible]
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Tenant: [illegible]
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assessed by Miami-Dade County and/or the City of Miami for the purpose of
imposition of real estate taxes, and (ii) any expenses incurred by Landlord in
contesting such taxes or assessments, or the assessed value of the Building or
the Land, which expense shall be allocated to the calendar year to which such
expenses relate. Any special or other assessment or levy which is imposed upon
the Land or the Building shall be added to the amount so determined and shall be
deemed to be included within the term "Taxes" for the purposes hereof. If at any
time during the term of this Lease, the methods of taxation prevailing on the
date thereof shall be altered, such additional or substitute tax, assessment,
levy, imposition, or charge, shall be deemed to be included within the term
"Taxes" for the purposes hereof. To the extent that Landlord receives a tax
refund, thereby reducing the Operating Expenses for a year in which an increase
in Operating Expenses have been paid by Tenant, such refund shall be applied
against the next Fixed Minimum Annual Rent payment becoming due under this
Lease.
(e) Additional Rent - First Calendar Year -
(or fraction):
Within one hundred twenty (120) days after the end of the first (1st)
calendar year of the Term, Landlord will submit to Tenant an operating statement
(the "Operating Statement") showing actual Operating Expenses incurred for the
preceding year. Tenant shall, within ten (10) days after receipt of written
demand, pay to Landlord Tenant's Proportionate Share of Operating Expenses in
excess of "Base Year Operating Expenses," which term shall refer to the
Operating Expenses for the Building for the calendar year 2000, adjusted to
reflect 100% occupancy. The excess amount described in the preceding sentence
shall be referred to as the "Excess Operating Expenses".
(f) Future Additional Rent - Landlord's Estimate of Operating Expenses:
For all calendar years of the Term, Landlord shall, within one hundred
twenty (120) days after the end of each calendar year of the Term, furnish to
Tenant Landlord's Estimate of Operating Expenses for the coming year. Tenant
shall then pay to Landlord, on the first (1st) day of each calendar month as
Additional Rent, an amount equal to one-twelfth (1/12) of Tenant's Proportionate
Share of Landlord's good faith estimate of the Excess Operating Expenses of that
year. Until Landlord shall furnish such estimate to Tenant, Tenant shall pay to
Landlord, on the first (1st) day of each such month, an amount equal to the
Additional Rent payable in the preceding month, if any. If there shall be any
increase or decrease in the Operating Expenses for any year, whether during or
after such year, Landlord shall furnish to Tenant a revised estimate and the
Additional Rent (if any) shall be adjusted and paid, as the case may be. If the
calendar year for which such estimate is furnished ends after the termination of
this Lease, the Additional Rent payable hereunder shall be prorated to
correspond to that portion of the calendar year occurring within the Term of
this Lease. Provided, however, in no event shall Tenant receive a refund if the
Operating Expenses of the Building are less than the Base Year Operating
Expenses.
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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(g) Future Additional Rent - Statement of Actual Costs:
Landlord shall also furnish to Tenant within one hundred twenty (120) days
after the end of each calendar year, an Operating Statement showing actual
Operating Expenses incurred for the preceding year. If the Operating Statement
shows that the sums paid by Tenant pursuant to subparagraphs (e) & (f) above,
exceed Tenant's Proportionate Share of Excess Operating Expenses, Landlord shall
promptly permit Tenant to credit the amount thereof against subsequent payments
of Additional Rent under this Article; and if the Operating Statement shows that
the sums paid by Tenant were less than Tenant's Proportionate Share of Excess
Operating Expenses, Tenant shall pay the amount of such deficiency within ten
(10) days after receipt of written demand. Failure or delay of Landlord to
submit to Tenant the written statement referred to herein shall not be a waiver
of any rights of Landlord. Tenant shall have the right to verify each Operating
Statement furnished by Landlord by an examination and audit at Tenant's expense
at Landlord's main offices in Miami-Dade County, Florida, so long as Tenant
commences each audit within six (6) months of its receipt of the Operating
Statement. Failure to commence an audit within such six month period shall be
deemed a waiver of Tenant's right to challenge, object to or audit the Operating
Statement.
(h) Townhouses:
The expenses of maintaining, operating, repairing, replacing and managing
the Townhouses shall be separately accounted for by Landlord. If such expenses
are attributable to both the Townhouses and the Building and/or other property,
Landlord shall determine the appropriate allocation to the Townhouses or other
property (other than the Land and/or Building) by comparative square footage or
other reasonable method and exclude such share of the expenses from Operating
Expenses.
Section 2.03 Additional Rent.
Any and all sums of money or charges required to be paid by Tenant under
this Lease, whether or not the same be so designated, shall be considered
"Additional Rent". If such amounts or charges are not paid at the time provided
in this Lease, they shall, nevertheless, be collectible as Additional Rent with
the next installment of Fixed Minimum Annual Rent thereafter falling due
hereunder, but nothing herein contained shall be deemed to suspend or delay the
payment of any amount of money or charges as the same become due and payable
hereunder, or limit any other remedy of Landlord.
ARTICLE III
COMMON USE AREAS AND FACILITIES
Please Initial:
Landlord: Illegible
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Tenant: Illegible
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Section 3.01 Control of Common Areas by Landlord
All facilities furnished by Landlord in the Building and designated for the
general use in common of occupants of the Building, including Tenant hereunder,
its officers, agents, employees and invitees, including, but not limited to
parking areas, streets, sidewalks, canopies, roadways, loading platforms,
washrooms, shelters, ramps, landscaped areas, stairways, corridors, lobbies,
elevators, and other similar facilities, shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to change, improve, reduce or otherwise alter the area, level,
location and arrangement of such parking areas and other facilities above
referred to; and to make all Rules and Regulations pertaining to and necessary
for the proper operation and maintenance of the common facilities. Tenant
hereunder, and any other sub-tenants and licenses, shall comply with all Rules
and Regulations made by Landlord pertaining to the operation and maintenance of
said common facilities, including, but not limited to, such reasonable
requirements pertaining to sanitation; handling of trash and debris; loading and
unloading of trucks and other vehicles; and safety and security against fires,
theft, vandalism, personal injury or other hazards.
Landlord shall have the right to close all or any portion of said areas or
facilities to such extent as may, in the opinion of Landlord's counsel, be
legally sufficient to prevent a dedication thereof, or the accrual of any rights
to any person or the public therein; and to do and perform such other acts in
and to said areas and improvements as, in the use of good business judgment,
Landlord shall determine to be advisable. Landlord will cooperate and maintain
the common facilities referred to above in such manner as Landlord, in its
sole discretion, shall determine from time to time. Without limiting the scope
of such discretion, Landlord shall have the full right and authority to employ
all personnel and to make all Rules and Regulations pertaining to and necessary
for the first-class operation and maintenance of the common areas and
facilities.
Section 3.02 Licenses:
All common areas and facilities not within the Leased Premises, which
Tenant may be permitted to use and occupy, are to be used and occupied under a
revocable license, and if any such license is revoked, or if the amount of such
area is diminished, Landlord shall not be subject to any liability nor shall
Tenant be entitled to any compensation or diminution or abatement of Fixed
Minimum Annual Rent or Additional Rent, nor shall such revocation or diminution
of such area be deemed constructive or actual eviction.
ARTICLE IV
SERVICES
Section 4.01:
Landlord will furnish the following services to Tenant, at no additional
cost or expense to Tenant.
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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from Monday through Friday, except for legally recognized holidays.
Cleaning services, of standard office quality. No carpet shampooing shall
be included.
Heat and air conditioning from 8:00 A.M. to 6:00 P.M., on Monday through
Friday, and between the hours of 8:00 A.M. and 1:00 P.M. on Saturdays. Heat and
air-conditioning services for hours in excess of those described above will be
charged to Tenant, based on the actual cost of utilities and additional cost of
wages paid to personnel directly associated with the operation of the overtime
air-conditioning and/or ventilating system.
Landlord shall furnish extermination services from time to time and shall
furnish automatically operated elevator service, electrical current for normal
office use and water for normal drinking and lavatory use at all times and on
all days throughout the year.
No electric current shall be used except that furnished or approved by
Landlord, nor shall electric cable or wire be brought into the Leased Premises,
except upon the written consent and approval of Landlord. Tenant shall use only
office machines and equipment which do not overload the Building's circuits
from which tenant obtains electric current. The cost of any consumption of
electric current in excess of that considered by Landlord to be usual, normal
and customary for office use, or which requires special circuits or equipment
(the installation of which shall be at Tenant's expense after approval in
writing by Landlord), shall be paid for by Tenant to Landlord as Additional
Rent in an amount to be determined by Landlord based upon Landlord's estimated
cost of such excess electric current consumption or based upon the actual cost
thereof if such excess electric current consumption is separately metered.
Such services shall be provided as long as Tenant is not in default under
any of the terms, provisions, covenants and conditions of this Lease, subject
to interruption caused by repairs, renewals, improvements, changes of services,
alterations, strikes, lockouts, labor controversies, inability to obtain fuel
or power, accidents, breakdowns, catastrophes, national or local emergencies,
acts of God and conditions and causes beyond the control of Landlord and upon
such happening, no claim for damages or abatement of Fixed Minimum Annual Rent
or Additional Rent for failure to furnish any such services shall be made by
Tenant or allowed by Landlord.
Section 4.02 Directories:
Space shall be provided on the Building directory board in the lobby and on
any other general Building directory board for Tenant. Landlord shall pay the
cost of initial directory listings. At Tenant's request, Landlord shall make
changes in such directory listings and Tenant will reimburse Landlord for the
actual cost of such service if not included in the Building's Operating
Expenses. The number of spaces
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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requested by Tenant shall not be unreasonable and Landlord reserves the right to
promulgate such Rules and Regulations with respect to the allocation of such
spaces.
ARTICLE V
USE
Tenant shall not use, permit or suffer the use of the Leased Premises or
any part thereof, for any purpose other than as a business office and for no
other purpose. Tenant further agrees that the Leased Premises are leased
exclusively for business purposes and may never be used at any time for
residential or other purposes.
ARTICLE VI
INSURANCE AND INDEMNITY
Section 6.01 Liability Insurance:
Tenant shall, during the entire Term, keep in full force and effect, a
policy of public liability and property damage insurance with respect to the
Leased Premises and the business operated by Tenant, and any permitted
sub-tenant of Tenant in the Leased Premises, in which the limits of public
liability are a single limit for liability per incident, per person and property
damage of no less than One Million Dollars ($1,000,000.00) and such greater
amount from time to time determined by Landlord which is customary for tenancies
of comparable size, space and business use.
Section 6.02 Contents Insurance:
Tenant shall maintain fire insurance, naming Landlord and Tenant as
insured, in an amount adequate to cover the cost of replacement of all
decorations, fixtures, contents and Leasehold Improvements (as that term is
defined in Article VII) in the Leased Premises in the event of fire, windstorm,
vandalism, mischief, and/or casualties including special extended coverage, and
said insurance shall include but not be limited to, coverage against all water
damage to contents and/or personal property of Tenant and the Leasehold
Improvements.
Section 6.03 Special Policy Provisions:
All insurance policies which Tenant is required to secure and maintain
pursuant to this Article VI, shall be written by companies acceptable to the
Landlord, shall name Landlord, any persons, firms or
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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corporations designated by Landlord, and Tenant as insureds, and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving Landlord thirty (30) days prior written notice. Further, said policies
shall contain an express waiver of any right of subrogation against Landlord and
other named insureds, designated by Landlord. Tenant will further deposit the
policies, or certificates thereof, with Landlord together with evidence of
payment of the premium, at all times, commencing with the date Tenant first
enters upon the Leased Premises for any purpose. In no event shall the limits of
any insurance policies required herein be considered as limiting the liability
of Tenant under this Lease.
Section 6.04 Increase of Fire Insurance Premium:
In addition, Tenant agrees that it will not keep, use, sell or offer for
sale in or upon the Leased Premises any article which may be prohibited by the
standard form of fire insurance policy. Tenant agrees to pay any increase in
premiums for fire and extended coverage insurance that may be charged during the
Term of this Lease or the amount of such insurance which may be carried by
Landlord on the Leased Premises or the Building of which they are a part
resulting from any acts or omissions of Tenant or any change in use by Tenant.
In determining whether increased premiums are the result of Tenant's use of the
Leased Premises, a schedule, issued by the organization in making the insurance
rate on the Leased Premises, showing the various components of such rate, shall
be conclusive evidence of the several items and charges which make up the fire
insurance rate for the Leased Premises.
In the event that Tenant's occupancy causes any increase of the premium for
the fire and/or casualty rates on the Leased Premises or any part thereof above
the rate for the least hazardous type of occupancy legally permitted in the
Leased Premises, Tenant shall pay the additional premium on the fire and/or
casualty insurance policies by reason thereof. Tenant also shall pay in such
event any additional premium necessitated by the character of Tenant's use of
the Leased Premises on such rent insurance policy as may be carried by Landlord
for its protection against rent loss through fire. Bills for such additional
premiums shall be rendered by Landlord to Tenant at such times as Landlord may
elect, and shall be due from and payable by Tenant when rendered, and the amount
thereof shall be deemed to be, and shall be paid as Additional Rent.
Section 6.05 Indemnification:
Tenant will indemnify Landlord and save it harmless from and against any
and all claims, actions, damages, liability, and expense in connection with loss
of life, personal injury and/or damage to property occurring in or about, or
arising from or out of the Leased Premises and adjacent sidewalks and loading
platforms or other areas occasioned wholly or in part by any act or omission of
Tenant, its agents, contractors, invitees, or employees. In case Landlord shall,
without fault on its part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord harmless and shall
pay all costs, expenses and reasonable attorneys' fees incurred or paid by
Landlord in connection with such
Please Initial:
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Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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litigation at all levels and such fees incurred in enforcing this indemnity.
Section 6.06 Mutual Waiver of Subrogation:
Notwithstanding anything set forth in this Lease to the contrary, Landlord
and Tenant each hereby waive any and all right of recovery, claim, action or
cause of action against the other, their respective agents, officers and
employees (a) for any loss or damage that may occur to the Leased Premises, the
Building, or any of the improvements thereto, by reason of fire, the elements or
any other cause which could be insured against under the terms of a standard
fire and extended coverage insurance policy or policies, with vandalism,
malicious mischief and all-risk coverage, or (b) for which landlord or Tenant
may be reimbursed as a result of insurance coverage affecting any loss suffered
by either party, regardless of cause or origin, including the negligence of
Landlord or Tenant or their respective agents, officers and employees. In
addition, all insurance policies carried by either party covering the Leased
Premises, the Building or contents, shall expressly waive any right on the part
of the insurer against the other party for damage to or destruction of the
Leased Premises, the Building or contents, resulting from the acts, omissions or
negligence of the other party.
ARTICLE VII
DESTRUCTION AND CONDEMNATION
Section 7.01 Fire or Other Casualty:
(a) For purposes of this section and this Lease Agreement generally, the
following definitions are applicable:
"Leasehold Improvements" refers to those interior improvements, whether
made at Landlord's or Tenant's expense, made to that portion of the Building
which is included within the Leased Premises in order to make the Leased
Premises habitable, functional or in accordance with Tenant's needs or wants,
including but not limited to electrical fixtures, plumbing fixtures, HVAC,
interior walls and partitions, built-ins, doors, wall coverings, flooring and
carpet, window coverings, wiring for telephone, computer and similar systems,
ceilings, air handlers and appliances which are affixed to the Leased Premises.
Leasehold Improvements do not include Tenants furniture, equipment or trade
fixtures which are not "fixtures" to the real estate as defined by Florida
common law.
"Leased Premises" refers to the total of all space under lease by the
Tenant, including the Leasehold Improvements and that portion of the Building
which is within the boundaries of the Leased Premises as set forth in Section
1.01 of this Lease Agreement, but excluding all common areas.
Please Initial:
Landlord: [illegible]
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Tenant: [illegible]
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"Building" refers to the structure located at 2601 South Bayshore Drive,
including the parking garage and all common areas, but excluding the townhouses
and all Leasehold Improvements. In any particular Leased Premises, the Building
is that portion which is not included within the scope of the Leasehold
Improvements, including but not limited to the exterior walls, structural
supports, elevator shafts, common area restrooms and exterior windows.
"Casualty Loss" refers to any loss or damage to any property by windstorm,
fire, flood, theft, or other casualty normally covered by policies of fire and
extended coverage insurance.
"Original Condition" refers to substantially the same condition any
personal property, fixtures or real property was in immediately before any
Casualty Loss.
(b) In the event of a casualty loss to any part or all of the Leasehold
Improvements, Landlord shall be entitled to all insurance proceeds for such
loss, including those from the insurance required to be maintained by Tenant on
the Leasehold Improvements as set forth in section 6.02 of this Lease
Agreement. Other than the obligations with specifically imposed on Landlord in
this Article VII, Landlord shall have no duty to account to Tenant for the use
of such proceeds or in any way share or deliver any or all of such proceeds
with or to Tenant.
(c) In the event of a Casualty Loss to the Leased Premises which Casualty
Loss does not render the Leased Premises untenable in any significant part,
there shall be no rent abatement and the Landlord shall repair the Leased
Premises and restore the Leasehold Improvements to their Original Condition,
all within 180 days of the occurrence of the Casualty Loss.
(d) In the event of a Casualty Loss to the Leased Premises which Casualty
Loss does not render the Leased Premises more than 50% untenable, Landlord
shall have the following options, one of which must be exercised by delivery of
notice to Tenant no later than 120 days from the occurrence of the Casualty
Loss:
(i) Tenant shall receive an abatement of rent in proportion to that part
of the Leased Premises which is untenable retroactive to the date of such
Casualty Loss and Landlord shall restore the Leased Premises to their Original
Condition within 18 months of the date of the occurrence of the Casualty Loss,
or
(ii) Landlord may terminate this Lease Agreement and neither party shall
have any further obligation to the other, except that Tenant shall be entitled
to a refund of all rent paid from the date of the occurrence of the Casualty
Loss to the date of Landlord's notice of the exercise of this option and
Landlord shall still be entitled to collect and keep all insurance proceeds to
which it is entitled under this Lease Agreement.
Please initial:
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Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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(e) In the event of a Casualty Loss to the Leased Premises which Casualty
Loss renders the Leased Premises 50% or more untenable, Landlord shall have the
following options, one of which must be exercised by delivery of notice to
Tenant no later than 180 days from the occurrence of the Casualty Loss:
(i) If Landlord elects to rebuild the Leased Premises, Tenant shall receive
a complete abatement of all rent if it vacates the Leased Premises or an
abatement of rent in proportion to that amount of the Leased Premises it does
not vacate, for the time it takes Landlord to restore the Leased Premises to
their Original Condition, which restoration must be accomplished within 18
months of the date of the occurrence of the Casualty Loss, or
(ii) Landlord may terminate this Lease Agreement and neither party shall
have any further obligation to the other, except that Tenant shall be entitled
to a refund of all rent paid from the date of the occurrence of the Casualty
Loss to the date of Landlord's notice of the exercise of this option and
Landlord shall still be entitled to collect and keep all insurance proceeds to
which it is entitled under this Lease Agreement.
(f) For purposes of this Article VII, any determination of the portion of
the Leased Premises which are tenable shall be made, in the first instance, by a
licensed engineer retained by Landlord. The results of such determination shall
be provided to Tenant. In the event Tenant disagrees with such determination,
Tenant may retain its own licensed engineer who shall make his/her own
determination and provide the results to Landlord. If the assessments differ by
less than 5%, Landlord's assessment shall control. If the assessments differ by
more than 5%, Tenant may either accept Landlord's assessment or require the two
engineers to select a third engineer, whose assessment shall be binding and
whose costs and fees shall be paid by whichever party's assessment was closest
to that of the third engineer. If the first two engineers are incapable of
selecting a third, the chief judge of the Circuit Court shall be requested to do
so. All time frames set forth for Landlord to make any decision or take any
action in this Article VII shall be extended by the same amount of time that
elapses from the delivery of Landlord's assessment to Tenant until resolution of
the assessment issue in accordance with this subparagraph.
(g) In no event shall Landlord be obligated to spend more to repair any
Casualty Loss under this Article VII than is available to Landlord in insurance
proceeds for such Casualty Loss from policies of insurance maintained by
Landlord and Tenant. All time frames for Landlord to make any decision or take
any action under this Article VII shall be extended commensurate with any delays
Landlord encounters in its dealings with the various insurance companies, so
long as such delays are not the result of Landlord's lack of diligence or
Landlord's negligence.
(h) Tenant hereby waives any and all right of recovery which it might
otherwise have against Landlord, its agents and employees, for any loss or
damage to Tenant's contents, furniture, furnishings, fixtures and any other
property of the Tenant, regardless of whether such loss or damage was caused in
Please Initial:
Landlord: [Illegible]
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Tenant: [Illegible]
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whole or in part by the negligence or fault of Landlord or its agents in the
design or maintenance of the Building, the Leased Premises or the Leasehold
Improvements, or any other negligence or fault of Landlord or its agents.
Section 7.02 Condemnation:
If the whole of the Leased Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose (a sale in lieu of
condemnation to be deemed a taking for the purposes of this paragraph), then the
Term of this Lease shall cease and terminate as of the date of possession being
required by the condemning authority and all Fixed Minimum Annual Rent and
Additional Rent shall be paid through that date.
If any part of the Leased Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, and in the event
that such partial taking or condemnation shall render the Leased Premises
reduced by thirty percent (30%) or more and Landlord cannot provide comparable
substitute space in the Building or shall render the Leased Premises unsuitable
for office use, then the Term of this Lease shall cease and terminate as of the
date of possession being required by the condemning authority.
In the event of a partial taking or condemnation, which is not extensive
enough to render the Lease terminable as provided above, then Landlord shall
promptly restore the Leased Premises to a condition comparable to the condition
at the time of such condemnation, less the portion lost in the taking, and this
Lease shall continue in full force and effect, except that the Fixed Minimum
Annual Rent and Tenant's Proportionate Share hereunder shall be equitably
adjusted.
If the whole or a substantial portion of the common parking areas in the
Building shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, then at Tenant's election the Term of this Lease
shall cease and terminate as of the date of possession being required by the
condemning authority unless Landlord shall take immediate steps to provide other
parking facilities substantially equal to the previously existing parking areas
and such substantially equal parking facilities shall be provided by Landlord at
its own expense. In the event that Landlord shall provide such other
substantially equal parking facilities, then this Lease shall continue in full
force and effect.
Although all damages in the event of any condemnation are to belong to
Landlord, whether such damages are awarded as compensation for diminution in the
value of the leasehold or the fee, Tenant shall have the right to claim and
recover from the condemning authority, but not from Landlord, such compensation
as may be separately awarded or recoverable by Tenant in Tenant's own right on
account of any and all damages to Tenant's business by reason of the
condemnation and for or on account of any cost or
Please Initial:
Landlord: [Illegible]
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Tenant: [Illegible]
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loss to which Tenant might be put in removing Tenant's merchandise, furniture,
fixtures, leasehold improvements and equipment to the extent any such awards do
not diminish the awards otherwise payable to Landlord.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01 Events of Default:
The occurrence of any of the following shall constitute an Event of
Default hereunder:
(a) The filing of a petition by or against Tenant for adjudication as a
bankrupt or insolvent, for its reorganization or for the appointment of a
receiver or trustee of Tenant's property, if not vacated within thirty (30)
days from the date of filing;
(b) An assignment by Tenant for the benefit of creditors; or the taking of
possession of the property of Tenant by any governmental officer or agency
pursuant to statutory authority for the dissolution or liquidation of Tenant;
(c) Failure of tenant to pay any installment of Fixed Minimum Annual Rent
or Additional Rent ("Rent"), due hereunder, or any other sum herein required to
be paid by Tenant, when due on the first of each month during the term of the
Lease, or as required hereunder;
(d) Tenant's failure to perform any other covenant or condition of this
Lease within ten (10) days after written notice and demand, unless the failure
is of such a character as to require more than ten (10) days to cure, in which
event Tenant's failure to proceed diligently to cure such failure and to
accomplish such cure within thirty (30) days after such notice and demand shall
constitute an Event of Default;
(e) Seizure under any levy, execution, attachment or other process of
court where the same shall not be promptly vacated or stayed on appeal or
otherwise or if Tenant's interest in the Leased Premises is sold by judicial
sale and the sale is not promptly vacated or stayed on appeal or otherwise;
(f) Tenant vacates or abandons substantially all of the Leased Premises;
and
(g) The occurrence of any Event of Default by Tenant prior to the
Commencement Date of the Term of this Lease.
Please initial:
Landlord: [illegible]
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Tenant: [illegible]
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Section 8.02 Landlord's Remedies and Obligations in Event of Tenant's
Default:
Landlord and Tenant, each having been advised by respective counsel as to
their respective rights and obligations under the existing statutory and
decisional law of the State of Florida, and each being desirous of obtaining
rights and obligations that might otherwise be unavailable under the existing
law, have bargained for, and do hereby mutually agree, to the following
remedies and procedures which shall apply in the event of an Event of Default.
(a) Landlord shall have the right to elect to terminate Tenant's right to
possession of the Leased Premises or to terminate this Lease. In the event
Landlord so elects, Landlord shall give Tenant three (3) days written notice of
Landlord's election and thereupon, at the expiration of said three (3) days
(unless such Event of Default has then been cured), Tenant's right to
possession of the Leased Premises shall terminate, whereupon Tenant shall
immediately quit and surrender the Leased Premises to Landlord and Tenant
further agrees that failure by Tenant to immediately surrender the Leased
Premises following an Event of Default and said three (3) day notice shall
render Tenant subject to the immediate issuance of a writ of possession by a
court of competent jurisdiction. In the event Landlord terminates Tenant's
right to possession or terminates this Lease as described in this Section
8.02(a), Tenant shall nonetheless remain liable for Rent under the terms of
this Lease as though Tenant's possession and/or this Lease had continued.
Landlord may, but shall have no obligation to relet the Leased Premises.
Landlord may make such alterations and repairs as may be necessary in order to
relet the Leased Premises, and relet said Leased Premises or any part thereof
for such term or terms (which may be for a term extending beyond the term of
this Lease) and at such rent and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable. Landlord, in attempting to
relet the Leased Premises, may grant concessions of free rent, and may, at
Landlord's option, make such alterations, repairs, replacements and/or
decorations in the Leased Premises, as Landlord, in Landlord's sole judgment,
considers advisable and necessary for the purposes of reletting the Leased
Premises; and the making of such alterations and/or decorations shall not
operate or be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way whatsoever for
failure to relet the Leased Premises, or in the event that the Leased Premises
are relet, for failure to collect the rent therefrom under such reletting. The
failure or unreasonable refusal of Landlord to relet the Leased Premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages or Rent for the balance of the stated Term. Upon each such reletting,
all rents received by Landlord from such reletting shall be applied, first, to
the payment of any costs and expenses of such reletting, including brokerage
fees and attorney's fees and costs of such alterations and repairs; second, to
the payment of Rent due and unpaid hereunder, and the residue, if any, shall be
held by Landlord and applied in payment of future Rent as the same may become
due and payable hereunder. If such rents received from such reletting during
any month shall be less than that to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly or may be accelerated and/or collected as
described in Section 8.02(d)(iii) hereof, at Landlord's sole election. No such
reentry or taking
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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possession of the Leased Premises by Landlord shall be construed as an election
on its part to terminate this Lease unless a written notice of such intention be
given to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease or pursue any
other remedy for such previous breach. Should Landlord at any time terminate
this Lease for any breach, in addition to any other remedies it may have, it may
recover from Tenant all damages it may incur by reason of such breach, including
the cost of recovering the Leased Premises, reasonable attorneys' fees, and
including an amount equivalent to the Rent reserved in this Lease for the
remainder of the stated Term, all of which amounts shall be immediately due and
payable from Tenant to Landlord.
(b) As an alternative to Landlord's rights and obligations set forth in
Section 8.02(a), Landlord shall have the option not to terminate Tenant's right
to possession or terminate this Lease upon an Event of Default, but rather to
take no action, with this Lease continuing in full force and effect, and to
enforce all of Landlord's rights under this Lease (exclusive of the rights and
obligations set forth above in Section 8.02(a)), including without limitation
the right to sue for and recover Rent as it become due, as well as the right to
terminate this Lease.
(c) In addition to the remedies available to Landlord as described above in
Section 8.02(a) and 8.02(b), Landlord shall also have the right to enforce any
other rights or remedies otherwise applicable by operation of law and Tenant
expressly waives any and all right to assert against Landlord any legal or
equitable defenses and/or doctrines (however, denominated) which would limit or
prohibit Landlord's right to sue for and obtain judgment against Tenant for
monies due by virtue of Landlord's having prosecuted a prior suit which did not
seek to collect the same monies (in whole or part) being sought in a subsequent
suit. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have the rights of injunction and
the right to invoke any remedy allowed at law or in equity as if reentry,
unlawful detainer proceedings and other remedies were not herein provided for.
(d) In the event of termination of this Lease or termination of Tenants'
right to possession (as a result of an uncured Event of Default or pursuant to
Section 8.02), Landlord shall have:
(i) The right to remove any and all persons and property from the Leased
Premises, with legal process, and pursuant to such rights and remedies as the
laws of the State of Florida shall then provide or permit, but Landlord shall
not be obligated to effect such removal. Said property may, at Landlord's
option, be stored or otherwise dealt with as provided within this Lease or as
such laws may then provide or permit, including but not limited to the right of
Landlord to sell or otherwise legally dispose of the same or to store the same,
or any part thereof, in a warehouse or elsewhere at the expense and risk of and
for the account of Tenant.
Please Initial:
Landlord: [Illegible]
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Tenant: [Illegible]
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(ii) The right to recover from Tenant upon termination of this Lease or
termination of Tenant's right to possession under the terms of this Lease the
unpaid Rent and other sums due to Landlord from Tenant which are unpaid, earned
or accrued as of the effective date of termination, plus interest upon such
sums as provided in Section 8.08, calculated from the due date of each such
unpaid, earned or accrued item to the date of payment of such item.
(iii) The right to recover from Tenant upon termination of Tenant's right
to possession under the terms of this Lease or on termination of this Lease:
(x) The amount by which Rent due to Landlord from Tenant under this Lease
for the balance of the stated Term (which is the Term had this Lease not been
terminated) exceeds the lesser of:
A. The amount of Rent loss that Tenant proves could reasonably have been
avoided by Landlord through commercially reasonable leasing activities for
such period (in accordance with the reletting standards described in Section
8.02(a) above); or
B. The net proceeds received or to be received by Landlord for such
period from reletting of the Leased Premises, if any, as provided in Section
8.02(a) if the Leased Premises are relet in whole or in part pursuant to
Section 8.02(a), during the portion of the Term to which Landlord's claim of
Rent pertains.
Section 8.03 Landlord's Lien:
Landlord shall have a first lien and security interest, paramount to all
others, on every right and interest, of Tenant in and to this Lease, and upon
any improvements which may hereafter be placed on the Leased Premises, and on
any furnishings and equipment, including fixtures or personal property of every
kind thereon, which lien and security interest is granted for the purpose of
securing the performance of each and every of the covenants, conditions and
obligations of this Lease to be performed and observed by Tenant. Landlord
shall have at all times a valid lien for all Rent and other sums of money
becoming due hereunder from Tenant, upon all goods, wares, inventory,
equipment, fixtures, furniture and other personal property and effects of
Tenant situated on the Leased Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearage in Rent shall
first have been paid and discharged. Upon the occurrence of an Event of Default
by Tenant, Landlord may, in addition to any other remedies provided herein or
by law, enter upon the Leased Premises and take possession of any and all
goods, wares, equipment, fixtures, furniture and other personal property and
effects of Tenant situated on the Leased Premises without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, at which Landlord or his assigns may
purchase, and apply the proceeds thereof, less any and all expenses connected
with the taking of possession and sale of the property, as a credit against any
sums due by Tenant and Tenant agrees to pay any deficiency forthwith. Tenant
agrees
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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that the said lien and security interest may be enforced by distress,
foreclosure or otherwise, at the election of Landlord, that Landlord shall have
all of the remedies of a secured party under the Uniform Commercial Code, and
that Tenant shall execute such financing statements as shall be necessary to
perfect such interest. The statutory lien for rent, if any, is not hereby waived
and the express contractual lien herein granted is in addition thereto and
supplementary thereto.
Section 8.04 Waiver of Defenses and Jury Trial:
IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE
RESPECTIVE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE
OR OCCUPANCY OF THE LEASED PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE, AND
ANY EMERGENCY OR OTHER STATUTORY REMEDY. IT IS FURTHER AGREED THAT TENANT WAIVES
ANY AND ALL RIGHTS IT MAY HAVE TO ASSERT ANY COUNTERCLAIM, OTHER THAN ONE WHICH
IS COMPULSORY UNDER APPLICABLE LAW, AGAINST LANDLORD IN ANY LEGAL PROCEEDINGS
BROUGHT BY LANDLORD WHICH ARISE OUT OF OR ARE IN ANY WAY RELATED TO THIS LEASE.
Section 8.05 Rights Cumulative:
The rights and remedies given to Landlord in this Lease are distinct,
separate and cumulative remedies, and no one of them, whether or not exercised
by Landlord, shall be deemed to be in exclusion of any of the others.
Section 8.06 Attorneys' Fees:
Tenant further agrees that in the event its default in the performance of
any of the terms, conditions, or covenants of this Lease requires Landlord, in
the exercise of its sole discretion, to use the services of an attorney to
attempt to or successfully remedy such default, that Tenant will reimburse
Landlord for any and all reasonable expenses incurred in the use of such
attorney and in any action which said attorney may take, whether suit be
instituted or not. Such expenses shall include, but not be limited to legal
fees, court costs, costs of filing and serving summons and/or complaint, etc.
Please Initial:
Landlord: /s/ [Illegible]
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Tenant: /s/ [Illegible]
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Section 8.07 Notice of Default; Service of Three-Day Notice:
Tenant hereby agrees to designate , as its agent to
accept service of the statutory three (3) day notice. In addition, Tenant
hereby agrees that service of said notice upon any employee of Tenant within
the Leased Premises or by posting a copy of the same on the Leased Premises
shall constitute effective and binding service of the same, notwithstanding any
statutory requirements to the contrary.
Section 8.08 Expenses of Enforcement:
In the event any payment due Landlord under this Lease shall not be paid
on the due date, said payment shall bear interest at the rate of eighteen
percent (18%) per annum from the due date until paid, unless otherwise
specifically provided herein, but the payment of such interest shall not excuse
or cure any default by Tenant under this Lease. In the event that it shall be
necessary for Landlord to give more than one (1) written notice to Tenant
during the Term of this Lease of any violation of this Lease, Landlord shall be
entitled to make an administrative charge to Tenant of One Hundred Dollars
($100.00) for each such additional notice. Tenant recognizes and agrees that
the charges which Landlord is entitled to make upon the conditions stated in
this Section represent, at the time this Lease is made, a fair and reasonable
estimate and liquidation of the costs of Landlord in the administration of the
Building resulting from the events described which costs are not contemplated
or included in any Rent or other charges provided to be paid by Tenant to
Landlord in this Lease. Any charges becoming due under this Section of this
Lease shall be added and become due with the next ensuing monthly payment of
Fixed Minimum Annual Rent and shall be collectible as a part thereof.
Section 8.09 Surrender and Holding Over:
If Tenant or anyone claiming under Tenant shall remain in possession of
the Leased Premises or any part thereof after the expiration of the Term without
an agreement in writing between Landlord and Tenant with respect thereto, the
person remaining in possession shall be deemed a tenant at sufferance, and,
during such holding over, all Fixed Minimum Annual Rent and Additional Rent
payable under this Lease shall be payable at a rate twice the rate in effect
immediately prior to the expiration of the Term. In no event, however, shall
such holding over be deemed or construed to constitute an extension or renewal
of this Lease. Upon the expiration and termination of this Lease, either by
lapse of time or otherwise, Tenant shall surrender to Landlord the Leased
Premises in "broom clean" condition, and in good repair, reasonable wear and
tear excepted.
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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ARTICLE IX
ALTERATIONS
Tenant shall not make any alterations, improvements, repairs, installations
or removals or additions ("Alterations") to the Leased Premises during the Term
of this Lease or any extension or renewal thereof, without first obtaining the
written consent of Landlord, which will not be unreasonably withheld, and it
shall not cut or drill into, or secure any fixture, apparatus or equipment of
any kind to any part of the Leased Premises without first obtaining the written
consent of Landlord. All Alterations made by Tenant as aforesaid shall remain
upon the Leased Premises at the expiration or earlier termination of this Lease
and shall become the property of Landlord, unless Landlord shall, prior to the
expiration or termination of this Lease, have given written notice to Tenant to
remove the same, in which event Tenant shall remove such Alterations and restore
the Leased Premises to the same good order and condition in which it was at the
commencement of this Lease. Should Tenant fail to do so, Landlord may do so,
collecting, at Landlord's option, the cost and expense thereof from Tenant as
Additional Rent.
Tenant shall procure all necessary permits before making any Alterations.
Tenant agrees that all Alterations done by it at its request, or anyone claiming
under it, shall be done in a lien free and good and workmanlike manner of first
class institutional office building quality, that the same shall be done in
conformity with all laws, ordinances and regulations of all public authorities,
that the structure of the Leased Premises shall not be endangered or impaired
and that Tenant shall repair all damages caused by or resulting from any such
Alterations.
ARTICLE X
TRADE FIXTURES
All trade fixtures installed by Tenant in the Leased Premises shall be new
or completely reconditioned and may remain the property of Tenant and shall be
removable at the expiration or earlier termination of this Lease, provided
Tenant shall not at such time be in default under any covenant or agreement
contained in this Lease; provided further, that in the event of such removal,
Tenant shall promptly restore the Leased Premises to their original order and
condition. Any such trade fixtures not removed at or prior to such termination
shall be and become the property of Landlord. All improvements and fixtures
installed by Tenant, (other than trade fixtures) including, but not limited to
heating equipment, lighting fixtures, air-conditioning equipment, ceiling, wall
treatment, floor covering, plumbing and electrical systems and fixtures, whether
or not installed by Tenant, shall not be removable by Tenant and shall become
the property of Landlord without any compensation therefor to Tenant, upon the
termination of this Lease.
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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A R T I C L E XI
QUIET ENJOYMENT
Upon payment by Tenant of the Fixed Minimum Annual Rent and Additional
Rent herein provided, and upon the observance and the performance of all of the
covenants, terms and conditions on Tenant's part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the
Term hereby demised without hindrance or interruption by Landlord or any other
person or persons lawfully or equitably claiming by, through or under Landlord,
subject, nevertheless to the terms and conditions of this Lease.
A R T I C L E XII
MAINTENANCE
Tenant shall, at all times, keep the Leased Premises (including
maintenance of its entrances and all glass) and all interior partitions, doors,
fixtures and equipment in good order, condition and repair, except for the
structural portions and the lighting, (including replacement of standard lamps
and bulbs), heating, plumbing fixtures and air-conditioning system of the
Leased Premises, which shall be maintained by Landlord. Tenant further agrees
to replace promptly at its own expense with glass of a like kind and quality
any plate glass or window glass of the Leased Premises which may become cracked
or broken by reason of Tenant's negligence; not to place or maintain articles
in the vestibule or entry of the Leased Premises, in the hallway adjacent
thereto or elsewhere on the exterior thereof; not to permit accumulations of
garbage, trash, rubbish and other refuse, and to keep such refuse in proper
containers (or in trash room maintained by Tenant) in the interior of the
Leased Premises until removed; not to use or permit the use of any apparatus
for sound reproduction or transmission or of any musical instrument in such
manner that the sound so reproduced, transmitted or produced shall be audible
beyond the interior of the Leased Premises; to keep all mechanical apparatus
free of vibration and noise which may be transmitted beyond the confines of the
Leased Premises; not to cause or permit objectionable odors to emanate or be
dispelled from the Leased Premises; to comply with all laws and ordinances and
all valid rules and regulations of any Federal, State, Municipal or public
authority having jurisdiction over the Leased Premises and Landlord, and all
recommendations of any public or private agency having authority over insurance
rates with respect to the use or occupancy of the Leased Premises by Tenant;
and to conduct its business in the Leased Premises in all respects in a
dignified manner and in accordance with high standards of office operation. In
the event Landlord is required to make repairs to structural portions of the
Leased Premises by reason of Tenant's negligent acts or omissions to act,
Landlord may charge the actual cost of such repairs to Tenant and such cost
shall thereafter become due as Additional Rent.
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
----------------------
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ARTICLE XIII
SIGNS
Tenant hereby agrees that it will not place or suffer to be placed or
maintained on any exterior door, wall or window of the Leased Premises any
signs, awning, or canopy, or advertising matter or other thing of any kind, and
will not place or maintain any decoration, lettering or advertising matter on
the glass of any window or door of the Leased Premises which is not in
conformity with the Rules and Regulations of the Building as set forth by
Landlord without first obtaining Landlord's written approval and consent, which
shall not be unreasonably withheld. Landlord agrees and hereby consents to
Tenant placing Tenant's name on the entrance to the Leased Premises. Tenant
further agrees to maintain such sign, decoration, lettering, advertising matter
or other thing as may be approved or provided by Landlord in good condition and
repair at all times. Tenant further acknowledges that Landlord may regulate the
lettering, size, placement, color and design of Tenant's sign.
ARTICLE XVI
PARKING
(a) For a period of ninety (90) days after the Commencement Date of the
Lease, Tenant shall be given the opportunity to obtain from Landlord and/or the
Garage operator the right to park a maximum of one (1) automobile for each four
hundred (400) square feet of premises leased hereunder (rounded to the nearest
whole number of parking spaces) in the Garage at the prevailing monthly rates
established by Landlord from time to time. Once exercised within the said ninety
(90) day period, this right, with respect to each designated automobile, or
designated substitute therefor, shall continue in effect during the Term of this
Lease so long as the applicable monthly parking fee shall continue to be paid to
Landlord or the Garage operator as the case may be.
Tenant and its employees shall park only in those spaces which are
designated by Landlord for the use of tenants of the Building. The use of the
Garage shall be governed by rules and regulations adopted from time to time by
Landlord or the Garage operator.
(b) Tenant shall furnish Landlord with a list of its employees' vehicle
license numbers within fifteen (15) days after taking possession of the Leased
Premises and Tenant shall thereafter notify Landlord of any change in such list
within five (5) days after such change occurs. Tenant agrees to assume
responsibility for compliance by its employees with the parking provisions
contained herein. Tenant further agrees that upon the second notice by Landlord
or its representative, that if any of Tenant's employees shall have parked its
vehicle in a portion of the parking area not designated for tenants of the
Building, then and in that event
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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Landlord shall have the power and the right to require Tenant to pay to
Landlord the sum of twenty-five ($25.00) Dollars per day, per incident, for
each day the violation continues.
(c) Landlord shall not be liable for any damage whatsoever to, or any
theft of, automobiles or other vehicles or the contents thereof, while in or
about the Building parking area.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Memorandum of Lease:
The parties hereto agree that neither this Lease nor any notice thereof or
reference thereto shall be recorded in any public records, except that Landlord
only may request a memorandum of the pertinent portions hereof be recorded in
the public records of Miami-Dade County, Florida. Such memorandum shall in all
events contain the provisions of this Lease giving notice that Landlord's
interest in the Leased Premises shall not be subject to any mechanic's liens as
a result of any contracts entered into between Tenant and any third party, or
arising out of or related to any improvements made to the Leased Premises or
materials or services applied thereto which may be ordered by Tenant. In the
event of such a request by Landlord, Tenant shall join in the execution of such
memorandum for the purpose of recordation.
Section 15.02 Notices:
Wherever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other,
such notice or demand shall not be deemed to have been duly given or served
unless in writing, and either personally delivered or delivered by overnight
mail or forwarded by Certified Mail, Return Receipt Requested, postage prepaid,
addressed as follows:
TO THE LANDLORD AT 2601 South Bayshore Dr.
Suite 900
Miami, Florida 33133
Attn: Brian K Goodkind
Senior Vice President
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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28
TO THE TENANT AT:
-------------------------------------------
-------------------------------------------
Such addresses may be changed from time to time by either party by serving
notices as above provided. No notice under this paragraph is effective until
actually delivered to the office of the addressee as listed above.
Section 15.03 Access to Leased Premises:
Landlord or Landlord's agents shall have the right to enter the Leased
Premises at all times to examine the same, and to show them to prospective
purchasers, mortgagees, or lessees of the Building, and to make such Alterations
as Landlord may deem necessary or desirable, and the Fixed Minimum Annual Rent
and Additional Rent reserved herein shall not abate while said Alterations are
being made by reason of loss or interruption of business of Tenant or otherwise.
However, nothing herein contained shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
maintenance, or repair of the Building or any part thereof, except as otherwise
herein specifically provided. In the event of an emergency, if Tenant shall not
be personally present to open and permit an entry into said Leased Premises,
Landlord or Landlord's agents may forcibly enter the same, without rendering
Landlord or Landlord's agents liable therefore, and without in any manner
affecting the obligations and covenants of this Lease.
Section 15.04 Assignment and Subletting:
(a) Tenant shall not assign, mortgage, pledge or encumber this Lease, in
whole or in part, nor sublet the whole or any part of the Leased Premises, nor
permit the use of the whole or any part of the Leased Premises, by any licensee,
without first obtaining the written consent of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed by Landlord, if (i) the
business to be conducted by such assignee and/or subtenant shall in all respects
be in accordance with the provisions of this Lease, including, without
limitation, the requirements relating to Tenant's permitted use of the Leased
Premises, (ii) such assignee and/or subtenant shall have a net worth which is
sufficient to fulfill all of Tenant's obligations under this Lease and an
operating history which is substantially similar to that of Tenant, and (iii)
such assignee and/or subtenant shall not be (x) an existing tenant of the Office
Building or other office buildings owned and/or managed by the Landlord, or (y)
an entity with which Landlord has engaged in negotiations for space in the
Office Building or other office buildings owned and/or managed by Landlord
within the previous twelve (12) months, or (z) any entity controlling,
controlled by, under common control with, or in
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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29
any way related to the entities described in (x) and (y) above. This
prohibition shall be construed to include a prohibition against any assignments
or subletting by operation of law. In the event of any such assignment,
subletting or licensing made with the written consent of Landlord, as
aforesaid, Tenant will nevertheless remain liable for the performance of all of
the terms, conditions and covenants of this Lease. Any permitted assignment,
subletting or license shall be by an agreement in form and content acceptable
to Landlord.
(b) If Landlord consents to any assignment, sublease or occupancy pursuant
to this Section, Tenant shall pay Landlord, as Additional Rent:
(i) in the case of each and every assignment, an amount equal to ALL
monies, property, and other consideration of every kind whatsoever paid or
payable to Tenant by the assignee for such assignment and for all property of
Tenant transferred to the assignee as part of the transaction (including, but
not limited to, fixtures, other leasehold improvements, furniture, equipment
and furnishings); and
(ii) in the case of each and every sublease or occupancy arrangement,
ALL rent, additional rent, and/or other monies, property, and consideration of
every kind whatsoever paid or payable to Tenant by the subtenant under the
sublease or occupant under occupancy arrangement, LESS all Rent under this
Lease accruing during the term of the sublease or occupancy arrangement in
respect of the subleased or occupied space (as reasonably determined by
Landlord, taking into account the useable area of the Leased Premises demised
under the sublease or occupancy arrangement).
(c) No such assignment, subletting or occupancy arrangement shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as Tenant, as a release of Tenant from the further performance by
Tenant of the covenants on the part of Tenant herein contained.
(d) If Tenant is a corporation, and if at any time during the Lease Term,
without the written consent of Landlord, the person or persons who own majority
of its voting shares at the time of the execution of this Lease cease to own a
majority of such shares (except as a result of transfers by bequest or
inheritance), Tenant shall so notify Landlord and Landlord may terminate this
Lease by notice to Tenant given within Ninety (90) days thereafter. Any consent
by Landlord to an assignment or subletting of this Lease or occupancy
arrangement shall not constitute a waiver of the necessity of such consent to
any subsequent assignment, subletting or occupancy arrangement.
Section 15.05 Subordination and Attornment:
a) This Lease and all rights of Tenant hereunder are and shall be subject
and subordinate to the lien of and all terms and conditions of any and all
mortgages entered into by Landlord which may now or hereafter encumber the
Leased Premises and/or any or all portions of the Building, and to all renewals,
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
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modifications, amendments, consolidations, replacements and extensions thereof
and to any and all ground lease(s) or master lease(s) of the Building or any
lien resulting from any method of financing or refinancing and all terms and
conditions thereunder, now or hereafter in force against the Land and Building
or upon any buildings hereafter placed upon the Land and to all advances made or
hereafter to be made upon the security thereof. This subordination shall be
self-operative and no further instrument of subordination shall be required for
its operation. Tenant agrees, however, upon demand, to execute promptly such
instruments, without expense to Landlord, as Landlord or a mortgagee may
reasonably request to further evidence the subordination of this Lease to any
existing or future mortgage or other security agreement, ground lease or master
lease.
(b) In the event any proceedings are brought for the foreclosure of, or in
the event of exercise of the power of sale under any mortgage made by Landlord
covering the Leased Premises, or in the event a deed is given in lieu of
foreclosure of any such mortgage, or upon the assignment of this Lease by
Landlord, Tenant shall attorn to the purchaser or grantee in lieu of
foreclosure, upon any such foreclosure or sale, and recognize such purchaser or
grantee in lieu of foreclosure, as Landlord under this Lease. Notwithstanding
anything contained in this Lease to the contrary, such Landlord, mortgagee or
purchaser at said foreclosure sale, shall not be:
(i) Liable for any act or omission of any prior Landlord;
(ii) Subject to any offsets or defenses which Tenant may have against any
prior Landlord;
(iii) Bound by any Fixed Minimum Annual Rent or Additional Rent which
Tenant may have paid to any prior Landlord for more than the current
month; or,
(iv) Bound by any amendment, termination or modification to Tenant's Lease
which was not approved by the then existing mortgagee.
(c) Tenant shall execute promptly any such instruments or certificates
required to carry out the intent of this Section as shall be requested by
Landlord and/or Landlord's mortgagee and to impose such other terms and
conditions requested by Landlord or Landlord's mortgagee. Tenant hereby
irrevocably appoints Landlord as attorney in fact for Tenant with full power and
authority to execute and deliver in the name of Tenant, any such instruments or
certificates required pursuant to this Section. If within ten (10) days after
the date of a written request by Landlord to execute such instrument, Tenant
shall not have executed same, Landlord may, at its option, cancel this Lease
without incurring any liability on account therefor.
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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Section 15.06 Mechanic's Liens:
Tenant shall not do any act, nor is Tenant authorized to make any contract
which may create or be the foundation for any lien or other encumbrance upon
any interest of Landlord or any ground or underlying landlord in any portion of
the Building. If, because of any act or omission (or alleged act or omission)
of Tenant, any mechanic's or other lien, charge or order for the payment of
money or other encumbrance shall be filed against Landlord, and/or any ground
or underlying landlord, and/or any mortgagee, and/or any portion of the
Building (whether or not such lien, charge, order or encumbrance is valid or
enforceable as such), Tenant shall, at its own cost and expense, cause the same
to be discharged of record or bonded within thirty (30) days after notice to
Tenant of the filing thereof; and Tenant shall indemnify and save harmless
Landlord, all ground and underlying landlord(s), and all mortgagees against and
from all costs, liabilities, suits, penalties, claims and demands, including
attorneys' fees and appellate attorneys' fees resulting therefrom. In the event
Tenant fails to comply with the foregoing provisions of this Section, Landlord
shall have the option of discharging or bonding any such lien, charge, order,
or encumbrance by payment or otherwise, and Tenant agrees to reimburse Landlord
for all costs, expenses and other sums of money in connection therewith (as
Additional Rent) with interest at the rate of eighteen percent (18%) per annum
promptly upon demand.
Section 15.07 Entire Agreement:
This Lease and the exhibits and addenda, if any, attached hereto and
forming a part hereof, set forth all the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the Leased
Premises, and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than as set forth
herein. Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by each.
Section 15.08 No Partnership:
Landlord shall not, in any way or for any purpose, be deemed to become a
partner of Tenant, in the conduct of its business or otherwise, or joint
venturer or a member of a joint enterprise, with Tenant.
Section 15.09 Captions and Section Numbers:
The captions, section numbers, article numbers and table of contents
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of such Sections or
Articles of this Lease, nor in any way affect this Lease.
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
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Section 15.10 Partial Invalidity:
If any term, covenant or condition of this Lease, or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and each other
term, covenant and condition of this Lease shall be valid and be enforced, to
the fullest extent permitted by law.
Section 15.11 Governing Law:
This Lease has been made and executed in the State of Florida and shall be
construed and enforced in accordance with the laws of the State of Florida.
Section 15.12 Waiver:
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Rent hereunder by
Landlord shall not be deemed to be a waiver of any particular breach by Tenant
of any term, covenant or condition of this Lease, regardless of Landlord's
knowledge of such preceding breach at the time of the acceptance of such Rent.
No covenant, term or condition of this Lease shall be deemed to have been
waived by Landlord, unless such waiver be in writing by the Landlord.
Section 15.13 Accord and Satisfaction:
No payment by Tenant or receipt by Landlord of a lesser amount other than
the Rent herein stipulated shall be deemed to be other than on account of the
stipulated Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such Rent or pursue any other
remedy provided in this Lease.
Section 15.14 Successors and Assigns:
All rights, obligations and liabilities herein, given to, or imposed upon
the respective parties hereto shall extend to and bind the several and
respective heirs, executors, administrators, successors, sublessees and assigns
of said parties; provided, however, that the liability of Landlord hereunder
and any successor in interest and title to the Leased Premises shall be limited
to his or its interest in the Land and Building, and no other assets of
Landlord other than his or its interest in the Land and Building shall be
affected by reason of
Please Initial:
Landlord: /s/ [illegible]
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Tenant: /s/ [illegible]
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any liability which Landlord or its successor in interest may have under this
Lease. Any and all such liability imposed on Landlord shall terminate upon
Landlord's transfer, sale, assignment or hypothecation of his or its interest in
the Land and Building. If there shall be more than one Tenant, they shall all be
bound jointly and severally by the terms, covenants and agreements herein and
the word "Tenant" shall be deemed and taken to mean each and every person or
party mentioned as a Tenant herein, be the same one or more; and if there shall
be more than one Tenant, any notice required or permitted by the terms of this
Lease, may be given by or to any one thereof and shall have the same force and
effect as if given by or to all thereof. No rights, however, shall inure to the
benefit of any assignee of Tenant unless the assignment to such assignee has
been approved by Landlord in writing as aforesaid.
Section 15.15 Brokerage Indemnity:
Landlord and Tenant each hereby represent and warrant to the other that
they have dealt with no broker, finder or similar agent, in connection with this
Lease. In the event that any broker or agent claims a brokerage fee in
connection with this transaction, the party who procured the services of such
broker or on whose behalf such broker was working if the former cannot be
determined, agrees to pay said fee and to indemnify and hold harmless the other
party from and against any and all liability and expense in connection with any
commissions, compensation or otherwise for the bringing about of this
transaction or the consummation thereof, including reasonable attorneys' fees
(in an effort to defend the brokerage claim), for the non-responsible party
should it be joined in litigation.
Section 15.16 Condition of Leased Premises:
Taking possession of the Leased Premises by Tenant shall be conclusive
evidence as against Tenant that the Leased Premises were in good and
satisfactory condition when possession was so taken.
Section 15.17 Taxes:
Tenant shall be responsible for and shall pay before delinquency all
municipal county or state taxes assessed during the Term of this Lease against
any occupancy interest or personal property of any kind, owned by or placed in,
upon or about the Leased Premises by Tenant.
Tenant shall also pay to Landlord any sales, use or excise tax, or any
similar tax assessed or levied with respect to the Rent received by Landlord and
with respect to any amounts receivable by Landlord under this Lease or otherwise
as may be now or hereafter authorized by the laws of any governmental authority
having jurisdiction in the matter, whether federal, state, county or municipal.
Please Initial:
Landlord: /s/ [illegible]
------------------
Tenant: /s/ [illegible]
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Section 15.18 Prior Occupancy:
If Tenant, with Landlord's consent, shall occupy the Leased Premises prior
to the beginning of the Lease Term specified in Section 1.03 hereof, all
provisions of this Lease shall be in full force and effect commencing upon such
occupancy, and Rent for such period shall be paid by Tenant at the rate herein
specified.
Section 15.19 Time and Consent:
It is understood and agreed hereto that time is of the essence regarding
all the terms, provisions, covenants and conditions of this Lease. Unless
otherwise provided herein to the contrary, whenever the consent of either party
shall be required hereunder such consent shall not be unreasonably withheld or
delayed.
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
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Section 15.21 Security Deposit:
Tenant has deposited with Landlord the sum of $ None as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease. It is agreed that in the event tenant defaults in
respect of any of the terms, provisions and conditions of this Lease,
including, but not limited to, the payment of Rent, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent
required for the payment of any such Rent or any other sum as to which Tenant
is in default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this Lease, including but not limited to, any damages or
deficiency in the reletting of the Leased Promises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. In the event that Tenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Lease, the security
shall be returned to Tenant after the date fixed as the end of this Lease and
after delivery of entire possession of the Leased Premises to Landlord. In the
event of a sale of the Land and Building or lease thereof, Landlord shall have
the right to transfer the security to the vendee or Lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of such
security, and term agrees to look to the new Landlord solely for the return of
said security, and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
In the event Landlord uses, applies or retains the whole or any part of
the security deposited with Landlord in accordance with this Section 15.21,
Tenant shall, within three (3) days of Landlord's demand, pay to Landlord the
sum so used, applied or retained which shall be added to the security deposit
so that the same shall be replenished to its former amount.
Section 15.22 Hazardous Waste:
Tenant shall not use, handle, store, display or generate in the Leased
Premises any materials which are toxic, ignitable, corrosive or reactive or any
other hazardous materials without compliance with any and all applicable
federal, state or local laws and regulations.
Tenant shall indemnify, defend and hold harmless Landlord against and from
any and all liability, damages, judgments, costs, fees and expenses, including
without limitation thereto, reasonable attorneys' fees at all levels, which may
be incurred by Landlord in complying with, or curing a violation by Tenant of
this Section.
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
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Section 15.23 Approval of Lender:
The terms and conditions of this Lease are subject to prior written
approval of Landlord's mortgagee. Further, Landlord and Tenant shall not,
without the prior written consent of Landlord's mortgagee, to the extent such
consent is required under then existing loan documents, voluntarily by
agreement terminate, cancel or surrender this Lease or any part thereof, except
as provided herein, or modify this Lease or accept or pay rent of more than one
month in advance of its due date.
Section 15.24 Estoppel Statement:
Tenant shall at any time and from time to time upon not less than ten (10)
days' prior written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing certifying to Landlord or any current or
prospective purchaser, assignee, sublessees, mortgagee (or beneficiary under a
deed of trust) or underlying lessor: (a) that this Lease is unmodified and in
full force and effect (or, if modified, adequately identifying such modification
and certifying that this Lease as so modified is in full force and effect), (b)
the commencement and termination dates of the Lease Term and the dates on which
the Fixed Minimum Annual Rent, Additional Rent charges and other charges are
paid, (c) whether or not there is any default by Landlord or Tenant in the
performance of any term, covenant, condition, provision or agreement contained
in this Lease and further whether or not there are any setoffs, defenses or
counterclaims against enforcement of the obligations to be performed under this
Lease and, if there are, specifying each such default, setoff, defense or
counterclaim, and (d) such other matters as Landlord or Landlord's mortgagee may
reasonably request in writing. Any such statement may be conclusively relied
upon by any prospective purchaser, assignee, subtenant, landlord or encumbrancer
of this Lease or of all or any portion of the Building. Tenant's failure to
deliver such statement within such time shall be deemed a statement that this
Lease is in full force and effect, without modification except as may be
represented by Landlord in such request, that there are no uncured defaults in
Landlord's or Tenant's performance, and that not more than one month's Fixed
Minimum Annual Rent has been paid in advance. Furthermore, in the event Landlord
has agreed to make and has completed the Leasehold Improvements under the
applicable provisions of Sections 15.16 and 15.20 of the Leasehold Agreement,
the Tenant shall provide within the ten (10) day time period referred to above,
the Tenant Estoppel Certificate in the form attached hereto as Exhibit "C-1" or
as subsequently modified as required by Landlord's mortgagee.
Section 15.25 Rules and Regulations:
Tenant shall observe those Rules and Regulations reasonably promulgated by
Landlord the first of which are attached hereto as Exhibit "D" and made a part
hereof. Landlord agrees that it will not modify such Rules and Regulations so
as to in any way (a) reduce the obligations of Landlord under this Lease; (b)
interfere with Tenant's use or enjoyment of the Leased Premises for the uses
permitted hereunder or
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
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negate its rights given hereunder; (c) interfere with the conduct of Tenant's
normal business; or (d) create any new material obligations or burdens upon
Tenant New Rules or Regulations shall not be effective for a reasonable period
of notice consistent with the nature of the matter being regulated. Landlord
shall not be liable to Tenant for violation of any of said Rules and
Regulations, or the breach of any term, covenant, condition, provision or
agreement in any lease, by any other tenant or other party in the Building, but
Landlord shall operate, manage, maintain and repair the Building in accordance
with this Lease. The provisions of the Rules and Regulations provided for in
this Lease are qualified in the entirety by the provisions of this Lease and in
the event of conflict between this Lease and the Rules and Regulations, this
Lease shall govern.
Section 15.26 Guaranty:
Section 15.27 Radon Gas Disclosure:
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
Please Initial:
Landlord: /s/ [illegible]
--------------------
Tenant: /s/ [illegible]
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IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease
as of the date and year first above written.
Witnessed in the Presence of: LANDLORD:
IRRADIO HOLDINGS, LTD.
a Florida limited partnership
/s/ signature illegible By: Terremark Management Services, Inc.
- ---------------------------- a Florida corporation, Managing Agent
As to Landlord
/s/ signature illegible By /s/ William J. Biondi
- ---------------------------- -----------------------------
As to Landlord William J. Biondi, President
TENANT:
/s/ signature illegible SPANISH BROADCASTING SYSTEM, INC.
- ---------------------------- a Florida corporation
As to Landlord
/s/ signature illegible By /s/ signature illegible
- ---------------------------- -----------------------------
As to Tenant
Please Initial
Landlord: Initial illegible
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Tenant: Initial illegible
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EXHIBIT "B"
LEGAL DESCRIPTION
Lots 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and the
unnumbered Lot is also known as 32, in block 39, of the AMENDED PLAT OF NEW
BISCAYNE, according to the Plat thereof, as recorded in Plat Book "B", at Page
16, of the Public Records of Dade County, Florida.
Lot 1, Block 39, of NEW BISCAYNE, according to the Plat thereof, as
recorded in Plat Book "B", at Page 16, of the Public Records of Dade County,
Florida, LESS a triangular strip of land described as follows:
Beginning at the NE corner of said Lot 1, Block 39, running thence
Southwesterly along the South side of Tiger Trail Avenue, also known as Tiger
Tail Avenue, 40 feet for POINT OF BEGINNING, running thence Northeasterly along
the South side of Tiger Trail Avenue, also known as Tiger Tail Avenue, 40 feet
to the corner of Tiger Trail Avenue, also known as Tiger Tail Avenue and Trade
Street, thence running Southeasterly along the Westerly side of Trade Street 7
1/2 feet; thence Southwesterly to POINT OF BEGINNING.
and
All of the Lots 23, 24, 25, 26, 27, 28, 29, 30 and 31, Block 39, of NEW
BISCAYNE, according to the Plat thereof, as recorded in Plat Book "B", at Page
16, of the Public Records of Dade County, Florida.
Lots 2, 3, and 4 Block 39, of AMENDED MAP OF NEW BISCAYNE, according to
the Plat thereof, as recorded in Plat Book "B", at Page 16, of the Public
Records of Dade County, Florida, together with improvements thereon.
All of the foregoing parcel being particularly described as follows:
BEGIN at the most southerly corner of Lot 4, Block 39, AMENDED PLAT OF NEW
BISCAYNE, according to the Plat thereof, as recorded in Plat Book "B," at Page
16, of the Public Records of Dade County, Florida; thence run North 24 20'44"
West along the Southwesterly boundary of said Lot 4 for a distance of 574.27
feet to the most Westerly corner thereof, thence run North 65 27'14" East along
the Northwesterly boundary of a portion of Lot 1 and Lots 2, 3 and 4 of Block
39, of said AMENDED PLAT OF NEW BISCAYNE for a distance of 209.57 feet to a
point of deflection; thence run North 76 04'31" East for a distance of 40.69
feet to the point of intersection with the Northeasterly boundary of said Lot
1, said point being on the Southwesterly Right-Of-Way Boundary of Aviation
Avenue (formerly known as Trade Avenue); thence run South 24 24'16" East along
the last described line, being also the Northeasterly boundary of portion of
Lot 1, Lots 7 through 31, both inclusive and the unnumbered Lot, Block 39, of
said AMENDED PLAT OF NEW BISCAYNE, for a distance of 577.62 feet to the most
Easterly corner of the unnumbered Lot, said corner being on the Northwesterly
Right-Of-Way boundary of South Bayshore Drive, thence run South 67 56'14" West
along the last described line, being also the Southeasterly boundary of said
unnumbered Lot and said Lots 2, 3 and 4, for a distance of 250.38 feet to the
POINT OF BEGINNING, containing an area of 144,683.72 square feet, more or less,
or 3.32 Acres, more or less.
40
EXHIBIT D - RULES AND REGULATIONS
1. Tenant will refer all contractors, contractors' representatives and
installation technicians rendering any service for Tenant, to Landlord for
Landlord's supervision and/or approval before performance of any such
contractual services. This shall apply to all work performed in the Building
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and installations of any and every nature
affecting floors, walls, woodwork trim, windows, ceilings, equipment or any
other physical portion of the Building. None of this work will be done by
Tenant without Landlord's written approval first had and obtained.
2. The work of the janitor or cleaning personnel shall not be hindered
by Tenant after 5:30 p.m., and such work may be done at any time when the
offices are vacant. The windows, doors, and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles, cabinets,
book cases, map cases, etc., necessary to prevent unreasonable hardship to
Landlord in discharging its obligation regarding cleaning service.
3. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators or stairways, or movement through the Building entrances or
lobby shall be restricted to the hours designated by Landlord from time to time.
All such movement shall be as directed by Landlord and in a manner to be agreed
upon between Tenant and Landlord by prearrangement before performance. Such
prearrangement initiated by Tenant shall include determination by Landlord and
subject to its decision and control for the time, method, and routing of
movement, limitations imposed by safety or other concerns which may prohibit any
article, equipment or any other item from being brought into the Building.
Tenant expressly assumes all risk of damage to any and all articles so moved, as
well as injury to any person or persons or the public engaged in or not engaged
in such movement, including equipment, property, and personnel of Landlord, if
damaged or injured as a result of any acts in connection with the performance of
this service for Tenant, from the time of entering the Building until completion
of the work, and Landlord shall not be liable for the act or acts of any person
or persons so engaged, or any damage or loss to any property or persons
resulting, directly or indirectly, from any act in connection with such service
performed by or for Tenant.
No sign or signs will be allowed in any form on the exterior of the
Building or on any window or windows inside or outside of the Building and
no sign or signs, except in uniform location and uniform style fixed by
Landlord, will be permitted in the public corridors or on corridor doors or
entrance to Tenant's space. All sign will be contracted for by Landlord for
Tenant at the rate fixed by Landlord from time to time, and Tenant will be
billed and pay for such service accordingly. Written consent from Landlord is
an absolute prerequisite for any such sign or signs any Tenant may be so
permitted to use.
41
5. Tenant shall not place, install or operate on the Leased Premises or
in any part of the Building, any engine, stove, machinery, or conduit
mechanical operation or cook thereon or therein, or place or use in or about
the Leased Premises any explosives, gasoline, kerosene, oil, acids, caustics,
or any other inflammable, explosive or hazardous material without the written
consent of Landlord first had and obtained. Landlord grants into Tenant the
right to utilize a microwave oven in the kitchen of the Leased Premises.
6. Landlord will not be responsible for any lost or stolen personal
property, equipment, money, or jewelry from Tenant's area or public rooms
regardless of whether or not such loss occurs when the area is locked against
entry.
7. No birds, animals, bicycles or vehicles shall be brought into or kept
in or about the Building.
8. No additional locks shall be placed upon any doors of the Leased
Premises and Tenant shall not permit any duplicate keys to be made, but if more
than two keys for any door or lock shall be desired, the additional number must
be obtained from Landlord and be paid for by Tenant; each Tenant must, upon the
termination of this Lease, leave the windows and doors in the Leased Premises in
like condition as of the date of said Lease, and must then surrender all keys to
Landlord. Landlord may permit entrance to Tenant's offices by use of passkeys
controlled by Landlord or employees, contractors, or service personnel
supervised or employed by Landlord.
9. None of the entries, passages, doors, elevators, elevator doors,
hallways or stairways shall be blocked or obstructed, nor shall any rubbish,
litter, trash, or material of any nature placed, emptied or thrown into these
areas, nor may such areas be used at any time except for access or egress by
Tenant, Tenant's agents, employees or invitees. Nothing shall be placed on the
outside of the Building, the windows, window-sills or projections.
10. Landlord shall have the right to determine and prescribe the weight
and proper position of any unusually heavy equipment, including safes, large
files, etc., that are to be placed in the Leased Premises, and only those which
in the opinion of Landlord might, without reasonable probability, damage to the
floors, structure and/or elevators may be moved into said Leased Premises or
the existence of same in the Leased Premises.
11. No portion of Tenant's area or any other part of the Building shall
at any time be used or occupied as sleeping or lodging quarters.
12. Without the prior written consent of Landlord, Tenant shall not sell
or permit the sale, at retail, of newspapers, magazines, lottery tickets,
periodicals or theater tickets, in or from its Leased Premises, nor shall
Tenant carry on or permit or allow any employee or other person to carry on the
business of stenography, typewriting or any similar business in or from its
Leased Premises for the service or accommodation of the occupants of any other
portion of the Building, or the business of a public barber shop or a
manicuring or chiropodist business or any business other than specifically
provided for in Tenant's Lease.
13. The sashes, sash-doors, windows, glass doors and any lights or
skylights that reflect or admit light
42
into the halls or other places of the Building shall not be covered or
obstructed, nor shall anything be placed upon or hung from the window sills.
The water and wash closets and urinals shall not be used for any other purpose
than the purposes for which they were respectively constructed, and the expense
of any breakage, stoppage, or damage resulting from a violation of this rule
shall be borne by Tenant whose clerks, agents, servants or licensees shall have
caused it. Tenant shall not mark, paint, drill into or in any way deface the
walls, ceilings, partitions, floors, wood, stone or iron work. Tenant shall not
make or permit any improper noises in the Building.
14. Only persons authorized by Landlord will be permitted to furnish ice,
drinking water, towels and other similar services to Tenant, and only at hours
and under regulations fixed by Landlord. Tenant shall not employ any person or
persons, other than Landlord's janitor for the purpose of cleaning, or taking
charge of the Leased Premises. It is understood and agreed that Landlord shall
in no way be responsible to Tenant for any damage done to the furniture or
other effects of Tenant by the janitor or any of his employees, or any other
person, or for any loss of property of any kind whatsoever within the Leased
Premises, however occurring Tenant will see each day that the windows are
closed and the doors securely locked before leaving the Building.
15. No window shades will be placed on any of the windows, excepting the
shades approved by Landlord. No awnings will be allowed on any of the windows.
16. Landlord shall have the right to prohibit any advertising by Tenant,
which, in its opinion, tends to impair the reputation of the Building or its
desirability as a Building for offices or for financial, insurance or other
institutions and businesses of like nature; and upon written notice from the
Landlord, Tenant shall refrain from or discontinue such advertising.
17. Tenant shall have access to the halls, corridors, elevators and
stairways in the Building, and to the offices leased by it twenty four (24)
hours a day, seven (7) days a week. Regular access shall be available between
the hours of 8:00 A.M. and 6:00 P.M., Monday through Friday. Access during
other than the hours and/or days herein set forth may, however, be refused
unless the person seeking admission has a pass, is properly identified or has
otherwise been granted clearance by Landlord. Landlord shall in no case be
liable in damages for the admission or exclusion of any person from the
Building. In case of invasion, mob riot, public excitement or other commotion,
Landlord reserves the right to prevent access to the Building during the
continuance of the same by closing the doors or otherwise for the safety of the
tenants and protection of property in the Building.
18. Tenant agrees not to install food or drink vending machines, or any
other food service equipment.
19. Landlord reserves the right to designate parking spaces to be
assigned to Tenant and to control all of the parking areas with meters, gates,
patrolmen, or any other method at Landlord's sole discretion and to levy for
any space not allocated to Tenant.
Landlord desires to maintain high standards of environment, comfort and
convenience for its tenants. It will be appreciated if any undesirable
conditions or lack of courtesy or attention by any of Landlord's employees is
reported directly to Landlord.