Exhibit 10.25
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LEASE
THIS LEASE AGREEMENT, dated 19 September 97 by and between KOALA Miami Realty
Holding Co., Inc., Corporation ("Landlord") with its principal office at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, and Radio Unica Corp., a Corporation
organized and existing under the laws of the State of Delaware, ("Tenant") with
its principal office at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. BASIC LEASE PROVISIONS
A. DESCRIPTION OF PREMISES:
Suite Number: 101
Building Name: Albany
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: Dade
City: ▇▇▇▇▇
▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Center: ▇▇▇▇▇ - Miami
B. PRINCIPAL LEASE TERMS:
Lease Term (Months) 85
Commencement Date: 01 October 97
Expiration Date: 31 October 04
Monthly Base Rent: $9,690.63
Sales or Use Taxes: $629.89
Total: $10,320.52
Security Deposit: $20,641.04
C. LEASED AREA
Approximately 9303 rentable square feet. (Includes - Tenant's
share of common area.)
D. MANAGER: ▇▇▇▇▇ Realty Services, Inc. is the designated agent of Landlord as
to all matters pertaining to this Lease, including its execution and
amendment and granting or withholding of consents, excluding any activities
prohibited by law.
E. ADDRESS FOR PAYMENT OF RENT AND SECURITY
DEPOSITS:
Payee: KOALA Miami Realty Holding Co., Inc.
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tenant Account#: 1093 (note on remittance)
F. ADDRESSES FOR NOTICES
Tenant: Radio Unica Corp.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ #▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant Fed. I.D./SSN: 65-0776004
Landlord: KOALA Miami Realty Holding Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Landlord Fed. I.D.: ▇▇-▇▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇ Realty Services, Inc.
Attn: President
▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The provisions contained in Sections 2 through 38, inclusive, which appear
after the signature lines below, are a part of this Lease and are incorporated
in this Lease by reference. The Tenant and the Landlord have executed or caused
to be executed this Lease on the dates shown below their signatures, to be
effective as of the date set forth above.
Tenant: Radio Unica Corp.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Seal)
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CFO
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Attest:
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Print Name:
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Title:
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(Corporate Seal)
Date:
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Signed and sealed in the presence of:
(1) /s/▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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(2) /s/J. ▇▇▇▇▇ ▇▇▇▇
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Print Name: J. ▇▇▇▇▇ ▇▇▇▇
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As to Tenant
Landlord: KOALA Miami Realty Holding Co., Inc.
By: ▇▇▇▇▇ Realty Services, Inc. as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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(Corporate Seal)
Date: September 30, 1997
signed and sealed in the presence of:
(1)
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Print Name:
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(2)
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Print Name:
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As to Landlord
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LEASE PROVISIONS INCORPORATED BY REFERENCE
2. LEASE OF PREMISES: The Landlord hereby leases to the Tenant and the Tenant
hereby takes from the Landlord the premises (the "Premises") which include the
Suite(s) shown and described on Exhibit "A", together with any other parts of
the Building used exclusively by Tenant, which Premises are or will be contained
in the office building (the "Building") located at the address stated in Section
1A, under the terms and conditions contained in this Lease. For the purposes of
this lease, "Property" shall mean the property referred to at the street address
in Section 1A which is more specifically described in the legal description
maintained in the Landlord's records. For the purposes of this lease, "Center"
shall mean The ▇▇▇▇▇ Center referred to in Section 1A.
3. TERM: The term of this Lease (the Term") shall commence on the date (the
"Commencement Date") which is the earlier to occur of the date stated in Section
1B, or the date the Tenant first occupies all or part of the Premises. The Term
shall expire on the date (the "Expiration Date") stated in Section 1B unless
sooner terminated as otherwise provided in this Lease or unless extended
pursuant to Section 27 or other extension provisions contained herein.
4. USE AND POSSESSION: The Tenant covenants and agrees that the Premises are
to be used by the Tenant for general office purposes "and radio broadcasting
transmissions and production," and for no other purposes without the prior
written consent of the Landlord. The Tenant shall not occupy or use the Premises
or permit the use or occupancy of the Premises for any purpose or in any manner
which: (a) is unlawful or is in violation of any applicable legal, governmental
or quasi-governmental requirement, ordinance, rule or code; (b) may be dangerous
to persons or property; (c) may invalidate any insurance policy held by the
Landlord or increase the amount of premiums for any insurance policy affecting
the Building or the Property (if any additional amounts of insurance premiums
are so incurred, the Tenant shall pay the Landlord the additional amounts on
demand as Additional Rent, provided that such payment shall not authorize such
use); (d) may create a nuisance or disturb any other tenant of the Building or
the occupants of neighboring Property or injure the reputation of the Building
or the Center; and (e) violates the "Rules and Regulations" of the Building as
may from time to time be adopted by Landlord, or any restriction of record. The
Tenant agrees that Tenant shall be responsible for any costs incurred by
Landlord by reason of Tenant's misuse of the Premises or the Building and common
areas, including without limitation any damages incurred by Tenant in moving
into or out of the Premises. If any costs are so incurred by Landlord, the
Tenant shall pay the Landlord such costs on demand as Additional Rent.* as
attached in Exhibit "C"
The Landlord agrees to have the Premises substantially completed and
ready for possession on or before the Commencement Date, subject to delays
caused or occasioned by strikes, insurrections, Acts of God, labor unrest,
shortage of materials, civil disturbances and other casualties or unforeseen
causes or events beyond the control of the Landlord ("Unforeseen Causes"). The
Tenant agrees to accept possession of the Premises within ten (10) days after
the receipt of notice from the Landlord of substantial completion (if after the
date specified in Section 1B).
5. RENT: Tenant agrees to pay to Landlord at the address specified in Section
1E, or at such other place designated in writing by Landlord, the Monthly Rent,
and any Additional Rent, plus any sales or use taxes (collectively called
"Rent"). "Monthly Rent" shall mean the initial monthly base rent stated in
Section 1B for the first twelve months following the Commencement Date of the
Term of this Lease ("First Lease Year"), and the Adjusted Monthly Rent as
adjusted in the lease rider. Rent shall be paid without any prior notice or
demand and without any deduction whatsoever. Monthly Rent shall be due in
advance on the first day of each month of the
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Term. The first installment of Monthly Rent shall be paid by Tenant to Landlord
upon execution of this Lease. Rent for any partial lease month shall be
prorated. Tenant's obligation to pay Rent to Landlord shall be independent of
every other covenant or obligation of Landlord under this Lease. All delinquent
Rent shall bear interest at the maximum rate permitted by applicable law or 18%
per annum, whichever is less, from the date due until paid. Rent shall be
considered delinquent after the 10th day following the date it is due. If Tenant
fails to pay Rent or any other charge when due under this Lease, then Tenant
shall pay and Landlord shall be entitled to receive a late payment service
charge, in addition to any interest charge due hereunder, covering
administrative and overhead expenses incurred by Landlord caused by such late
payment, which the parties stipulate and agree are hereby liquidated and shall
be equal to five percent of the overdue amount. Tenant shall pay a charge equal
to $25.00 per returned check or the amount to which Landlord is entitled under
State Law, whichever is greater, for any checks written to Landlord which are
returned for insufficient funds.
6. REAL ESTATE TAX INCREASES: Tenant agrees to pay to Landlord as Additional
Rent, Tenant's pro rata share of any and all increases in real estate taxes and
assessments levied against the Property in which the Premises are located over
the real estate taxes and assessments due and payable on the Property at the
commencement of this Lease. Tenant's prorata share shall be based on the
rentable square footage in the Premises compared to the rentable square footage
in the Building or Buildings subject to the applicable assessment. Payment of
Tenant's pro rata share will be due to Landlord upon 30 days written notice from
Landlord specifying the amount of taxes for the initial year of this lease, the
amount of taxes for the current year, Tenant's rentable square footage, and the
rentable square footage within the Building or Buildings subject to the
applicable tax assessment. If, for any reason, the amount of rentable square
footage included within a tax assessment is reduced or increased, the Tenant's
pro rata share will be adjusted in like manner to reflect the rentable square
footage subject to assessment.
7. RENT ADJUSTMENT:
8. SALES AND USE TAX: In addition to the Rent and other amounts due to the
Landlord under this Lease, the Tenant shall pay to the Landlord and the Landlord
shall remit to the appropriate governmental authorities any sales, use, or other
tax, excluding Federal or State income taxes, now or hereafter imposed upon
rents and other amounts due to the Landlord under this Lease, notwithstanding
the fact that any statute, ordinance, enactment, or regulation may impose any of
those types of taxes on the Landlord.
9. NOTICES: For the purpose of any notice or demand under this Lease, the
respective parties shall be served by overnight delivery, personal delivery or
certified or registered mail, return receipt requested, addressed to the Tenant
at the address as set forth in Section 1F and to the Landlord at the addresses
set forth in Section 1F or other such addresses designated in writing by
Landlord. Any notice shall be effective when delivered.
10. ORDINANCES AND REGULATIONS: The Tenant shall comply promptly, at the
Tenant's sole cost and expense, with all present and future laws, codes,
ordinances, rules and regulations of any municipal, county, state, federal or
other governmental authority, including environmental laws, and any bureau or
department thereof, and of the Board of Fire Underwriters or any other body
exercising similar functions, which may be applicable to the Premises and
Tenant's use or occupancy of the Premises, and shall comply with the
requirements of all of Landlord's policies of insurance at any time in force
with respect to the Building in which the Premises are located. The Tenant
agrees for itself and for its subtenants, employees, agents, and invitees to
comply with the Rules and Regulations,
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promulgated from time to time with respect o the Premises, Building, Property
and Center, a copy of which is available in the management office in the Center.
Notwithstanding any other provision of this lease to the contrary,
Tenant shall comply with the Americans with Disabilities Act ("ADA"), as it now
exists and as it may hereafter be amended, with regard to the Premises and the
Tenant's use of the Premises, including, without limitation, the obligation to
make the Premises accessible and shall hold Landlord harmless with respect
thereto. Landlord shall not be responsible for compliance with the ADA with
respect to the Premises, including the design or construction thereof. Tenant
waives any right, claim, defense or set off which Tenant may have, now or
hereafter, based upon any responsibility Landlord may have under the ADA with
respect to the Premises, the Building, the Property or otherwise. Tenant agrees
that any and all steps taken or to be taken by Landlord, in Landlord's
judgement, now or hereafter, to comply with the ADA concerning the Building or
the Property are authorized and permitted under the Lease and shall not
constitute an interruption, disturbance or other breach of Tenant's rights under
this Lease. Nothing herein shall constitute an admission by Landlord that the
ADA governs any part of the Premises, Building or Property or any activities of
Landlord with respect thereto.
Tenant covenants and agrees that Tenant shall not at any time maintain
on, or dispose or discharge from, the Property or the Premises any "Hazardous
Materials", as defined below, except Tenant may use and store minor quantities
of Hazardous Materials for cleaning purposes only or in connection with the use
of office equipment so long as the quantities and use are exempt from applicable
governmental regulation and such Hazardous Materials are disposed of in
accordance with all applicable laws. The failure to comply with all applicable
laws regarding Hazardous Materials and this covenant shall constitute an Event
of Default by the Tenant under this Lease and shall entitle the Landlord to all
rights and remedies provided in this Lease, at law or in equity. The term
"Hazardous Materials" as used herein shall mean collectively, any hazardous
waste, any hazardous substances, any pollutant or contaminant, all as defined by
42 USC ss. 9601, and any toxic substances, petroleum products, other hazardous
materials, or other chemicals or substances regulated by any environmental laws
of any county, state or federal government or any other governmental entity.
Tenant's obligations as set forth in this paragraph shall survive the
termination of this Lease.
11. SIGNS: The Tenant shall not place any signs or other advertising matter or
materials on the exterior or on the interior of the Building or at any other
location on the Property or Center, without the prior written consent from the
Landlord. Any lettering or signs placed on the interior of the Common Areas of
the Building shall be for directional purposes only, and such signs and
lettering shall be of a type, kind, character, location and description which
have been approved by the Landlord in writing. Directional and identification
signage provided by the Landlord shall be limited to the tenant directory of the
Building.
12. SERVICES: The Landlord shall provide and maintain the following: apparatus
for heating and cooling of the Premises, during normal business hours to the
extent necessary for the comfortable occupancy of the Premises, according to
Landlord's standard, under normal business operations and in the absence of the
use of machines, equipment, or devices which affect the temperature otherwise
maintained in the Premises; water from the regular Building fixtures for
drinking, lavatory, and toilet purposes; customary cleaning and janitorial
services in the Premises five times per week Monday through Friday and excluding
national holidays; customary cleaning, mowing, grounds keeping, and trash
removal in the Common Areas; and Landlord's customary security services
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for the Property. The Landlord shall provide Landlord's standard amount of free
non-exclusive parking for the employees and visitors of the Tenant on the
parking areas adjacent to the Building.
The services to be provided by Landlord at its cost under the terms of
this Lease shall not include any maintenance or replacement of non-standard
building items such as kitchen or breakroom fixtures and appliances including
but not limited to sinks, disposals, dishwashers, water heaters, refrigerators,
icemakers, special air conditioning or heating units, and card access systems or
special facilities such as showers. All cost for maintenance or replacement of
such items shall be the obligation of the Tenant.
The Tenant agrees that the Landlord shall not be liable for damages for
failure to furnish or delay in furnishing any service if attributable to any of
the causes described in Sections 16 and 17 or as a result of unforeseen causes.
No failure or delay resulting from the foregoing reasons shall be considered to
be an eviction or disturbance of the Tenant's quiet enjoyment, use, or
possession of the Premises. If the Tenant shall require electrical current to
operate equipment or machines, including heating, refrigeration, computer(s),
data processing, or other machines or equipment using electrical current or
maintain office hours that will increase the amount of the electricity usually
furnished by the Landlord for use in general office space, the Tenant will
obtain the prior written approval of the Landlord and pay to the Landlord the
additional direct expense incurred, including any installation or maintenance
cost, as Additional Rent. Landlord reserves the right to install a submeter for
such service.
13. ALTERATIONS: The Tenant, by occupancy hereunder, accepts the Premises as
being in good repair and condition and suitable for Tenant's intended use of the
Premises subject to Tenant's punch list items not directly related to tenant
leasehold improvements. The Tenant shall maintain the Premises and every part
thereof in good repair and condition, reasonable use, wear and tear excepted.
The Tenant shall not make or suffer to be made any alterations, additions or
improvements excluding normal, reasonable painting and decorating to or of the
Premises or any part thereof without Landlord's prior written consent. The
Tenant shall not permit any lien or claim for lien of a mechanic, laborer, or
supplier or any other lien to be filed against the Center, the Property
containing the Building, the Premises, or any part of such property, arising out
of work performed, or alleged to have been performed by, or at the direction of,
or on behalf of the Tenant.
The interest of Landlord in the Property or any part thereof shall not
be subject to liens for improvements made by Tenant or by persons claiming by,
through or under Tenant, and Tenant agrees that Tenant shall notify any person
making any improvements on behalf of Tenant of this provision. Upon request of
Landlord, Tenant will execute a short form of this Lease which states that the
terms of this Lease expressly prohibits any liability to Landlord or the
Landlord's property for any improvements made by, through or under Tenant which
may be recorded by Landlord.
14. QUIET ENJOYMENT: Subject to the provisions of this Lease, the Tenant shall
be entitled to peaceful and quiet enjoyment of the Premises, so long as the
Tenant is not in default under this Lease.
15. LANDLORD'S RIGHTS: The Landlord and its agents shall have the right, at all
reasonable times during the Term of this Lease, to enter the Premises for the
purpose of inspecting the Premises and of making any repairs and alterations as
the Landlord shall deem necessary. Landlord will make a reasonable effort to
schedule entry so as not to interrupt broadcasting in such cases where
interruption is necessary. The Landlord and its agents shall also
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have the right to enter the Premises at all reasonable hours for the purpose of
displaying the Premises to prospective tenants during the ninety (90) day period
prior to the Expiration Date of this Lease. Landlord and its agents shall have
the right at all times to alter, renovate, and repair portions of the Building
which do not include the Premises, notwithstanding any temporary inconvenience
or disturbance to Tenant caused by such repairs, renovations, or alterations.
16. DESTRUCTION OF PREMISES: If the Premises, the Building, or the Property is
rendered substantially untenantable by fire or other casualty, the Landlord may
elect, by giving the Tenant written notice within sixty (60) days after the date
of the fire or casualty, either to: (a) terminate this Lease as of the date of
the fire or other casualty; or (b) proceed to repair or restore the Premises,
the Building, or the Property (other than the leasehold improvements and
personal property installed by the Tenant), to substantially the same condition
as existed immediately prior to fire or other casualty.
If the Landlord elects to proceed pursuant to 16(b) above, the
Landlord's notice shall contain the Landlord's reasonable estimate of the time
required to substantially complete the repair or restoration. If the estimate
indicates that the time so required will exceed one hundred twenty (120) days
from the date of the casualty and the Landlord does not make available to the
Tenant for its use and occupancy other office space, substantially similar to
the Premises and located in the Property or in the Center, if any, pursuant to
Section 23, then the Tenant shall have the right to terminate this Lease as of
the date of such casualty by giving written notice to the Landlord not later
than twenty (20) days after the date of the Landlord's notice. If the Landlord's
estimate indicates that the repair or restoration can be substantially completed
within one hundred eighty (180) days, or if the Tenant fails to exercise its
right to terminate this Lease, this Lease shall remain in force and effect.
If the Premises are damaged by fire or other casualty but the Premises
are not rendered substantially untenantable, then the Landlord shall diligently
proceed to repair and restore the damaged portions thereof (other than the
leasehold improvements and personal property installed by the Tenant), to
substantially the same condition as existed immediately prior to such fire or
other casualty, unless such damage occurs during the last twelve (12) months of
the Term, in which event the Landlord shall have the right to terminate this
Lease as of the date of such fire or other casualty by giving written notice to
the Tenant within thirty (30) days after the date of such fire or other
casualty.
If all or any part of the Premises are damaged by fire or other
casualty and this Lease is not terminated, the Rent shall ▇▇▇▇▇ for that part of
the Premises which are untenantable on a per diem and proportionate area basis
from three (3) days after the date of the fire or other casualty until the
Landlord has substantially completed the repair and restoration work in the
Premises which it is required to perform, provided, that as a result of such
fire or other casualty, the Tenant does not occupy the portion of the Premises
which are untenantable during such period.
17. CONDEMNATION: If all or part of the Premises, Building or Property is taken
or condemned by any authority for any public use or purpose (including a deed
given in lieu of condemnation), which renders the Premises substantially
untenantable, this Lease shall terminate as of the date title vests in such
authority, and the Rent shall be apportioned as of such date.
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If any part of the Premises, Building, or Property is taken or
condemned but the Premises are not rendered substantially untentable (including
a deed given in lieu of condemnation), this Lease shall not terminate. If the
taking reduces the rentable square feet in the Premises, Rent shall be equitably
reduced for the period of such taking by an amount which bears the same ratio to
the Rent then in effect as the number of square feet so taken or condemned bears
to the Leased Area set forth in Section 1C. The Landlord, upon receipt and to
the extent of the award in condemnation or proceeds of sale, shall make
necessary repairs and restorations (exclusive of leasehold improvements and
personal property installed by the Tenant) to restore the Premises remaining to
as near its former condition as circumstances will permit, and to the Building
and the Property to the extent necessary to constitute the portion of same not
so taken or condemned as complete.
The Landlord shall be entitled to receive the entire price or award
from any sale, taking or condemnation without any payment to the Tenant and the
Tenant hereby assigns to the Landlord the Tenant's interest, if any, in such
award. However, the Tenant shall have the right separately to pursue against the
condemning authority an award with respect to the loss, if any, to leasehold
improvements paid by the Tenant without any credit or allowance for the Landlord
and for any loss for injury, damage, or destruction of the Tenant's business
resulting from such taking. Under no circumstances shall the Tenant seek or be
entitled to any compensation for the value of its leasehold estate which Tenant
hereby assigns to Landlord.
18. ASSIGNMENT AND SUBLEASE: Without the prior written consent of the Landlord
which will not be unreasonably withheld, the Tenant shall not sublease the
Premises, or assign, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of this Lease or the interest of the Tenant in this Lease,
in whole or in part, by operation of law, court decree or otherwise. Landlord
may grant, deny or withhold consent or impose conditions on the granting of
consent, in Landlord's sole discretion. If the Tenant desires to assign this
Lease or to enter into any sublease of the Premises, the Tenant shall deliver
written notice of such intent to the Landlord, together with a copy of the
proposed assignment or sublease at least thirty (30) days prior to the effective
date of the proposed assignment or commencement date of the term of the proposed
sublease. Any approved sublease shall be expressly subject to the terms and
conditions of this Lease. In the event of any approved sublease or assignment,
the Tenant shall not be released or discharged from any liability, whether past,
present or future, under this Lease, including any renewal term of this Lease,
and if the sublease or assignment provides for rent in excess of the Rent
payable to Landlord under the terms of this Lease, one-half (1/2) of the
difference between the rent payable by the assignee or subtenant and the Rent
payable to Landlord under the terms of this Lease shall be paid to Landlord in
consideration of its consent to the assignment or sublease. For purposes of this
Section 18, an assignment shall be considered to include a change in the
majority ownership or control of Tenant if Tenant is a corporation whose shares
of stock are not traded publicly, or if the Tenant is a partnership, a change in
the general partner of the partnership or a change in the persons holding more
than 50% interest in the partnership, or a change in majority ownership or
control of any general partner of the partnership.
19. HOLDING OVER: If the Tenant, or any assignee or sublessee of the Tenant,
shall continue to occupy the Premises after the termination or expiration of
this Lease (including a termination by notice under Section 24 or a termination
or expiration under Section 27), without the prior written consent of the
Landlord, such tenancy shall be a Tenancy at Sufferance. During the period of
any hold over tenancy by the Tenant, or any assignee or sublessee, the Landlord,
by notice to the Tenant, may adjust the Rent to an amount equal to one hundred
and fifty percent of the Rent of the last month of the Term in which Rent was
payable. Acceptance by the Landlord of any Rent after
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termination shall not constitute a renewal of this Lease or a consent to such
hold over occupancy nor shall it waive the Landlord's right of re-entry or any
other right contained in this Lease or provided by law.
20. SUBORDINATION AND ATTORNMENT: This Lease and the right of the Tenant
hereunder are expressly subject and subordinate to the lien and provisions of
any mortgage, deed of trust, deed to secure debt, ground lease, assignment of
leases, or other security instrument or operating agreement (collectively a
"Security Instrument") now or hereafter encumbering the Premises, the Building,
the Property, or any part thereof, and all amendments, renewals, modifications
and extensions of and to any such Security Instrument and to all advances made
or hereafter to be made upon such Security Instrument, provided, however, that
so long as the Tenant is not in default under the terms of this Lease, the
holder of any such instrument shall not disturb the Tenant's possession of the
Premises in the event of the exercise of such holder's rights under such
instrument. The Tenant agrees to execute and deliver such further instruments,
in such form as may be required by Landlord or any holder of a proposed or
existing Security Instrument, subordinating this Lease to the lien of any such
Security Instrument as may be requested in writing by the Landlord or holder
from time to time.
In the event of the foreclosure of any such Security Instrument by
voluntary agreement or otherwise, or the commencement of any judicial action
seeking such foreclosure, the Tenant, at the request of the then Landlord, shall
attorn to and recognize such mortgagee or purchaser in foreclosure as the
Tenant's landlord under this Lease. The Tenant agrees to execute and deliver at
any time upon request of such mortgagee, purchaser, or their successors, any
instrument to further evidence such attornment.
The Tenant shall from time to time, upon not less than ten (10) days'
prior written request by the Landlord, deliver to the Landlord a statement in
writing certifying that this Lease is unmodified and in full force and effect,
or, if there have been modifications, that this Lease, as modified, is in full
force and effect; providing a true, correct and complete copy of the Lease and
any and all modifications of the Lease; the amount of each item of the Rent then
payable under this Lease and the date to which the Rent has been paid; that the
Landlord is not in default under this Lease or, if in default, a detailed
description of such default; that the Tenant is or is not in possession of the
Premises, as the case may be; and containing such other information and
agreements as may be reasonably requested.
21. WAIVER AND INDEMNIFICATION: To the full extent permitted by law, the Tenant
hereby releases and waives all claims against the Landlord and its agents,
employees, officers, directors, and independent contractors, for injury or
damage to person, property or business sustained in or about the Property, the
Building, or the Premises by the Tenant, its agents or employees other than
damage proximately and solely caused by the gross negligence of the Landlord or
its agents and employees.
The Tenant agrees to indemnify and hold harmless the Landlord and its
agents and employees, from and against any and all liabilities, claims, demands,
costs, and expenses of every kind and nature, including those arising from any
injury or damage to any person (including death) or property sustained in the
Premises, or resulting from the failure of the Tenant to perform its obligations
under this Lease; provided, however, the Tenant's obligations under this section
shall not apply to injury or damage resulting from the negligence or willful act
of the Landlord or its agents or employees.
9
The Landlord agrees to indemnify and hold harmless the Tenant, and its
respective agents and employees, from and against any and all liabilities,
claims, demands, costs and expenses of every kind and nature, arising from any
injury or damage to any person (including death) or property sustained in or
about the Building proximately caused by the gross negligence or willful act or
omission of the Landlord; provided, however, the Landlord's obligations under
this section shall not apply to injury or damage resulting from the negligence
or willful act or omission of the Tenant, or its agents or employees.
The Landlord shall not be responsible or liable to the Tenant for any
event, act or omission to the extent covered by insurance and maintained or
required to be maintained by the Tenant with respect to the Premises and its use
and occupancy thereof (whether or not such insurance is actually obtained or
maintained). At the request of the Landlord, the Tenant shall from time to time
cause its insurers to provide effective waivers of subrogation for the benefit
of the Landlord, and its agents or employees and insurers, in a form
satisfactory to the Landlord.
22. SURRENDER OF PREMISES: Upon the expiration or termination of this Lease or
the termination of the Tenant's right of possession of the Premises, the Tenant
shall surrender and vacate the Premises immediately and deliver possession
thereof to the Landlord in a clean, good, and tenantable condition, except for
a) damages beyond the control of the Tenant; b) reasonable use; c) ordinary wear
and tear. Any movable trade fixtures and personal property that may be removed
from the Premises by the Tenant at the end of the Lease term, but which are not
so removed, shall be conclusively presumed to have been abandoned by the Tenant
and title to such property shall pass to the Landlord without any payment or
credit; or, the Landlord may, at its option, either store or dispose of such
trade fixtures and personal property at the Tenant's expense. Tenant agrees that
it shall not remove any of the personal property from the Premises without
Landlord's consent so long as any Rent or Additional Rent, or other sums owed to
Landlord, remain unpaid.
23. RELOCATION OF TENANT:
24. EVENTS OF DEFAULT: Each of the following shall constitute an event of
default by the Tenant under this Lease: Landlord shall provide Tenant with
written notice of any monetary default and on the part of Tenant at Landlord's
first opportunity no more than once each (12) twelve month period. (1) the
Tenant fails to pay any installment of Rent or Additional Rent within ten (10)
days after the date on which the installment of Rent or Additional Rent first
becomes due; (2) the Tenant fails to observe or perform its obligations under
sub-section (d) of Section 4 above and such violation continues for more than 24
hours after such notice or Tenant fails to observe or perform any of the other
covenants, conditions or provisions of this Lease other than the payment of any
installment of Rent or Additional Rent, and fails to cure such default within
fifteen (15) days after written notice from the Landlord to the Tenant; (3) the
Tenant fails a second time to observe or perform any of the other covenants,
conditions or provisions of this Lease other than the payment of any installment
of Rent or Additional Rent after prior written notice of the failure; (4) a
petition is filed by or against the Tenant or any Guarantor to declare the
Tenant or the Guarantor, as the case may be, bankrupt or to seek relief for such
Tenant or Guarantor under any chapter of the Bankruptcy Code, as amended, or
under any other law imposing a moratorium on, or granting debtor's relief with
respect to, the rights of creditors; (5) the Tenant or any Guarantor becomes or
is declared insolvent by law or Tenant or any Guarantor makes an assignment for
the benefit of creditors; (6) a receiver is appointed for the
10
Tenant or the Tenant's property or for any Guarantor or any of Guarantor's
property; (7) the interest of the Tenant in this Lease is levied upon under
execution or other legal process.
Upon the occurrence of an event of default by the Tenant under this
Lease, the Landlord at its option, without further notice or demand to the
Tenant, may in addition to all other rights and remedies provided in this Lease
at law or in equity:
A. Terminate this Lease and Tenant's right of possession of the
Premises, and recover all damages to which the Landlord in entitled under this
Lease, at law and in equity, specifically including, without limitation, all the
Landlord's reasonable expenses of reletting (including repairs, alterations,
improvements, additions, decorations, legal fees and brokerage commissions).
B. Terminate the Tenant's right of possession of the Premises without
terminating this Lease, in which event the Landlord may, but shall not be
obligated to, relet the Premises, or any part thereof for the account of the
Tenant, for such rent and such term and upon such terms and conditions as are
acceptable to the Landlord. For purposes of any reletting of the Premises, the
Landlord is authorized to redecorate, repair, alter and improve the Premises to
the extent necessary or desirable in the Landlord's judgement. For any period
during which the Premises have not been relet, Tenant shall pay Landlord monthly
on the first day of each month during the period that Tenant's right of
possession is terminated, a sum equal to the amount of Rent due under this Lease
for such month. If and when the Premises are relet and a sufficient sum is not
realized from such reletting after payment of all the Landlord's expenses of
reletting (including repairs, alterations, improvements, additions, decorations,
legal fees and brokerage commissions) to satisfy the payment of Rent due under
this Lease for any month, the Tenant shall pay to the Landlord any such
deficiency monthly upon demand. The Tenant agrees that the Landlord may file
suit to recover any sums due to the Landlord under this section and that such
suit or recovery of any amount due the Landlord shall not be any defense to any
subsequent action brought for any amount not previously reduced by judgement in
favor of the Landlord. If the Landlord elects to terminate the Tenant's right to
possession only without terminating this Lease, the Landlord may, at its option,
enter into the Premises, removing the Tenant's signs and other evidences of
tenancy, and take and hold possession thereof; provided, however, that such
entry and possession shall not terminate this Lease or release the Tenant, in
whole or in part, from the Tenant's obligation to pay the Rent reserved
hereunder for the full Term or from any other obligation of the Tenant under
this Lease.
Tenant shall pay on demand or reimburse Landlord for payment of
Landlord's reasonable attorney's fees, expenses and court costs in negotiation,
at trial, and on appeal incurred by Landlord to enforce any obligation of Tenant
under this Lease or to defend any claim brought by Tenant against Landlord or by
any person claiming by, through or under Tenant, or in curing any default by
Tenant, or in connection with any action or proceeding arising out of or
occasioned by any lien or claim of lien on the Premises, the Building, or the
Center, or in defending or otherwise participating in any legal proceeding
initiated by Tenant or against Tenant, or in connection with the investigation
of a response to any request for consent or other amendments to the Lease by
Tenant.
25. SUCCESSOR AND ASSIGNS: This Lease shall bind and inure to the benefit of
the successors, assigns, heirs, executors, administrators, and legal
representatives of the parties hereto. In the event of the sale, assignment, or
transfer by the Landlord of its interest in the Building or in this Lease (other
than a collateral assignment to secure a debt of the Landlord prior to
enforcement) to a successor in interest who expressly assumes the obligations of
the
11
Landlord hereunder, the Landlord shall thereupon be released or discharged
from all of its covenants and obligations hereunder, except such obligations as
the Landlord shall have accrued prior to any such sale, assignment or transfer;
and the Tenant agrees to look solely to such successor of the Landlord for
performance of such obligations. Any securities or funds given by the Tenant to
the Landlord to secure performance by the Tenant of its obligations hereunder
may be assigned by the Landlord to such successor of the Landlord and, upon
acknowledgment by such successor or receipt of such security and its assumption
of the obligation to account for such security in accordance with the terms of
the Lease, the Landlord shall be discharged of any further obligation relating
thereto. The Landlord's assignment of the Lease or of any or all of its rights
herein shall in no manner affect the Tenant's obligations hereunder. The
Landlord shall have the right to freely sell, assign or otherwise transfer its
interest in the Building and/or this Lease.
26. NON-WAIVER: No waiver of any covenant or condition of this Lease by either
party shall be deemed to imply or constitute a further waiver of any other
covenant or condition of this Lease.
27. AUTOMATIC RENEWAL:
28. SECURITY DEPOSIT: As security for the performance of its obligations
under this Lease, the Tenant upon its execution of this Lease has paid to the
Landlord a security deposit (the "Security Deposit") in the amount stated in
Section 1B. The Security Deposit may be applied by the Landlord to cure or
partially cure any default of the Tenant under this Lease, and upon notice by
the Landlord of such application, the Tenant shall replenish the Security
Deposit in full by promptly paying to the Landlord the amount so applied. The
Landlord shall not pay any interest on the Security Deposit. The Security
Deposit shall not be deemed an advance payment of rent or a measure of damages
for any default by the Tenant under this Lease, nor shall it be a bar or defense
to any action which the Landlord may at any time commence against the Tenant.
29. LIMITATION OF THE LANDLORD'S LIABILITY: As used in this Lease, the term
"Landlord" shall mean the entity herein named as such, and its successors and
assigns. No person holding the Landlord's interest under the Lease (whether or
not such person is named as the "Landlord") shall have any liability hereunder
after such person ceases to hold such interest, except for any liability
accruing hereunder while such person held such interest. No principal, officer,
employee, or partner (general or limited) of the Landlord shall have any
personal liability under any provision of this Lease. If the Landlord defaults
in the performance of any of its obligations under this Lease or otherwise, the
Tenant shall look solely to the Landlord's interest in the Building and not to
the other assets of Landlord or the assets, interest, or rights of any
principal, officer, employee, or partner (general or limited) for satisfaction
of the Tenant's remedies on account thereof.
30. COMMON AREAS: For purposes of this Lease "Common Areas" shall mean all
areas, improvements, space, and equipment (owned or controlled by the Landlord)
in or at the Property, provided by the Landlord for the common or joint use and
benefit of tenants, customers and other invitees.
31. MISCELLANEOUS: This Lease, the Exhibits, the Riders and Addendums contained
herein or attached hereto contain the entire agreement between the Landlord and
the Tenant and there are no other agreements, either oral or written. This Lease
shall not be modified or amended except by a written document signed by the
Landlord and the Tenant which specifically refers to this Lease. The captions in
this Lease are for convenience only and in
12
no way define, limit, construe or describe the scope or intent of the provisions
of this Lease. This Lease shall be construed in accordance with the laws of the
state in which the Building is located. If any provision of this Lease or any
amendment hereof is invalid or unenforceable in any instance, such invalidity or
unenforceability shall not affect the validity or enforceability of any other
provision, or such provision in any circumstance not controlled by such
determination.
32. TENANT'S INSURANCE: Tenant shall obtain and keep in force during the Term
of this Lease, including any extension and renewal, comprehensive general
liability insurance, including contractual liability coverage, insuring Landlord
(as an additional insured) and Tenant against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises, and all areas
appurtenant thereto. Such policy shall provide minimum limits of $1,000,000 for
damage to property or for death or injury to any one person in any one accident.
Tenant shall deliver to Landlord, prior to occupancy of the Premises, a
certificate of insurance and evidence of payment of one year's premium, and
shall deliver a new certificate as and when the policy is renewed or replaced.
Said policy shall contain a waiver of subrogation clause in form and content
satisfactory to Landlord and provide that it will not be subject to
cancellation, non-renewal, reduction or other change except after at least
thirty (30) days prior written notice to Landlord. If Tenant fails to comply
with such requirements, Landlord may obtain such insurance and keep the same in
effect and Tenant shall pay Landlord, as Additional Rent due hereunder, the
premium cost thereof upon demand.
33. NO RECORDING: NEITHER THIS LEASE NOR ANY MEMORANDUM OF THIS LEASE MAY BE
RECORDED OR FILED FOR RECORD IN ANY PUBLIC RECORDS WITHOUT THE SEPARATE EXPRESS
WRITTEN CONSENT, IN RECORDABLE FORM, OF THE LANDLORD.
34. ENCUMBRANCES ON LANDLORD'S TITLE: Upon request of Landlord, Tenant will
promptly release or modify, or cause to be released or modified, any financing
statement given by Tenant to a third party, any notice of commencement filed by
Tenant with respect to work on the Premises, or any other recorded document
filed by or on account of Tenant ("Document"), which adversely affects, clouds,
or otherwise encumbers Landlord's title to the Center or any part thereof, so
that the Document shall not encumber any portion of the Center, Building, or
Property other than the Tenant's leasehold interest in the Premises. Tenant's
obligations as set forth in this Section 34 shall survive termination of this
Lease.
35. RADON DISCLOSURE FOR FLORIDA LEASES: Radon is a naturally occurring
radioactive gas which, 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. Tenant acknowledges this
disclosure by signing this Lease.
36. ERISA: (1) As used herein, the following terms have the following
meanings: (a) "Affiliate" means (1) any person directly or indirectly through
one or more intermediaries, controlling, controlled by, or under common control
with the person, (2) any officer, director, employee, relative of, or partner in
any such person, and (3) any corporation, partnership, trust or unincorporated
enterprise of which such person is an officer, director, partner or employee;
(b) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended; (c) "Code" means the Internal Revenue Code of 1986, as amended; (d)
"DOL" means the United States Department of Labor;
13
(e) "▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, a New York trust
company, (f) "Fund" means the Commingled Pension Trust Fund (Special Situation
Investments - Real Estate) of ▇▇▇▇▇▇; (g) "10% Plan " means any employee benefit
plan, other than a governmental or church plan, whose interest in the Fund,
together with the interests of any other employee benefit plans maintained by
the same employer or employee organization in the Fund, exceeds 10% of the total
of all assets in the Fund (10% Plans in the Fund as of the date hereof are
described in Exhibit attached hereto); (h) "employee benefit plan" is defined in
section 3 (3) of ERISA; and (i) "party in interest" is defined in section 3 (14)
of ERISA and includes the term "disqualified person" as defined in section 4975
(e)(2) of the Code.
(2) Tenant represents and covenants that either - (a) Tenant is not a party in
interest with respect to any 10% Plan or 10% Plans in the Fund; or (b) Tenant is
not ▇▇▇▇▇▇ or any Affiliate of ▇▇▇▇▇▇ or any other collective investment fund
maintained by ▇▇▇▇▇▇ and the annual amount involved in this Lease (including the
amount of any other lease or arrangement for the furnishing of goods in
connection with real property investments of the Fund with the Tenant or any
Affiliate thereof), determined on a calendar year basis, does not exceed
$7,500,000; or (c) Tenant is a party in interest with respect to a 10% Plan or
10% Plans in the Fund, but such party-in-interest relationship arises solely by
reason of providing services to such 10% Plan or 10% Plans (including services
as a fiduciary) and/or solely by reason of a relationship to a service provider
(including a fiduciary) described in section 3 (14)(F),(G), (H) or (I) of ERISA,
and Tenant (i) neither exercised nor has any discretionary authority, control,
responsibility or influence with respect to the investment of plan assets in, or
held by, the Fund, and (ii) is not an Affiliate of ▇▇▇▇▇▇; or (d) if Tenant
cannot make any of the representations and covenants described in either clause
(a), (b), or (c) of subparagraph (2), then Tenant has otherwise satisfied
Landlord, by providing such information as reasonably requested by Landlord,
including, if so requested, an opinion of counsel (satisfactory to Landlord in
content and scope) to the effect that Prohibited Transaction Class Exemption
84-14 promulgated by the U.S. Department of Labor will exempt the execution of
this Lease and the consummation of the transactions contemplated thereby from
the restrictions of sections 406(a)(1)(A) through (D) of ERISA and sections 4975
(c)(1)(A) through (D) of the Code.
(3) Tenant further represents and covenants that, notwithstanding anything to
the contrary herein, without the Landlord's written approval (a) Tenant shall
not (voluntarily, by operation of law or otherwise), sublease, assign or
otherwise transfer its interest under this Lease to any subtenant, assignee or
other transferee which could not satisfy the representations and covenants made
under either clause (a), (b) or (c) of subparagraph (2), and (b) throughout the
Term of this Lease and any extension or renewal thereof, Tenant shall not
(voluntarily, by operation of law or otherwise) enter into any agreement,
relationship or contract which would cause it to fail to satisfy the
representations and covenants under either clause (a), (b) or (c) of
subparagraph (2). The provisions of this subparagraph (3) are not intended to
expand or otherwise provide Tenant with rights to sublease, assign or transfer
its interest under this Lease beyond that provided herein.
(4) In the event Landlord gives a notice to Tenant identifying any additional
10% Plan or 10% Plans in the Fund and requests verification that Tenant is in
compliance with the representations and covenants of subparagraph (2)(a) above
with respect to such additional 10% Plan or 10% Plans, or in the event Landlord
otherwise requests that Tenant verify that Tenant is in compliance with said
subparagraph (2) generally, within ten (10) days after such request, Tenant
shall furnish to Landlord a certificate confirming whether or not Tenant is in
compliance with said subparagraph (2) and, in the event of its failure to
comply, the reason for such failure. In the event Tenant obtains
14
knowledge that it is not in compliance with said subparagraph (2), within the
ten (10) days after obtaining such knowledge, Tenant shall notify Landlord of
such failure to comply with said subparagraph (2) and the reason for such
failure.
(5) The failure of Tenant to comply with the provisions of subparagraph (3)
shall constitute an immediate Event of Default by Tenant under this Lease and
entitle Landlord, at Landlord's election, immediately to terminate this Lease
and pursue any and all other rights and remedies available to Landlord
hereunder, at law or in equity. In addition, in the event of any sublease,
assignment or other transfer by Tenant of, or any attempt by Tenant to sublease,
assign or otherwise transfer, Tenant's interest under this Lease contrary to the
provisions of said subparagraph (3), without limiting any other provision of
this Lease, Tenant hereby expressly covenants and agrees that Landlord shall be
entitled to a decree or order to rescind or restrain and enjoin such sublease,
assignment or other transfer and that Tenant shall not plead in defense thereof
that there may be an adequate remedy at law.
(6) If at any time, by reason of change in circumstance or otherwise, (i) the
exemptions from the prohibitions of section 406 of ERISA and section 4975 of the
Code specified in subparagraph (2) no longer apply to Tenant, or (ii) a
sublessee, assignee or transferee is no longer able to satisfy any of the
conditions set forth in clauses (a), (b) and (c) of subparagraph (2), and, in
either case, the Landlord determines that no other basis for exemption from the
prohibitions of section 406 of ERISA or section 4975 of the Code is reasonably
available, the Tenant shall take such action as is necessary to eliminate the
prohibition within ninety (90) days after the date on which Tenant obtains
knowledge that it is not in compliance with said subparagraph (2). If Tenant
fails to complete such cure within ninety (90) days after it obtains such
knowledge, Landlord shall be entitled to terminate this Lease without additional
penalty to Tenant.
37. UBTI: (A) Manager shall not enter into any lease, license or operating
agreement or consent to any sublease which (i) contains any provision for the
payment of rents based in whole or in part on the income, net revenues, net
receipts or profits derived by any person, including the tenant or subtenant,
from the lease premises, provided that any such lease or sublease may contain
provisions for rents based on a fixed percentage or percentages of gross
receipts or sales of the tenant or subtenant, or (ii) provides for or
contemplates rents attributable to personal property for any year in excess of
ten percent (10%) of the total rents under such lease or sublease for such year,
determined at the time the personal property is first placed in service by the
lessee, and redetermined subsequently if (a) additional or substitute personal
property is placed in service and the rents attributable to the personal
property leased under the lease increases by 100% or more or (b) there is a
modification of the lease which results in a change in the rent charged under
the lease.
(B) Manager may perform on behalf of owner only those services (including,
without limitation, construction management services) for tenants as provided in
the applicable lease and which are customarily provided by owners for tenants,
in the geographic area in which the leased property is located, in connection
with the rental of space in similar types of properties. For such services,
Manager may charge additional rent reasonably related to the cost of providing
such services, including associated overhead. Owner acknowledges that Manager's
affiliates may provide construction management services to tenants under
separate agreements provided Manager gives Owner written notice of such
agreements to perform such services.
15
(C) If, and only if, a prospective tenant (the "Prospective Tenant") informs
Manager that it is unable to make the representation set forth in subparagraph
(E)(3) below (which representation shall appear in each prospective tenant's
lease), Manager shall not enter into any lease with the Prospective Tenant,
until such time as Manager shall have received from the Prospective Tenant a
written statement (the "Related Party Statement") setting forth the name of each
Related Party (as defined in subparagraph (E)(3) below) of the Prospective
Tenant that is a tenant in the same Office Center as the Office Center in which
the leasable floor space to be covered by the Prospective Tenant's lease is
located. For purposes of this paragraph (C), the term "Office Center" shall mean
an office park which is managed by Manager and owned by Owner and which is
located in (i) Miami, Florida, (ii) Tampa, Florida, (iii) Raleigh-Crossroads,
North Carolina, (iv) Raleigh-Glenwood, North Carolina, (v) Norfolk, Virginia or
(vi) Richmond, Virginia.
(D) Before entering into any lease with a Prospective Tenant covering leasable
floor space in any office Center (the "Prospective Lease), Manager shall have
determined that, if the Manager were to enter into the Prospective Lease, the
aggregate amount of leasable floor space in such Office Center that would be
covered by the Prospective Lease and, if applicable, by any and all leases with
those tenants identified in any Related Party Statement submitted by the
Prospective Tenant to the Manager pursuant to paragraph (C) above, would not
constitute more than 15% of the total amount of leasable floor space in such
Office Center (the "15% Determination"). In the event that Manager is unable to
make the 15% Determination, Manager shall, before entering into the Prospective
Lease, (i) notify Owner that it is unable to make the 15% Determination in
respect of the Prospective Tenant, (ii) if applicable, forward a copy of the
Prospective Tenant's Related Party Statement to Owner and (iii) have received
written direction from Owner to enter into the Prospective Lease.
(E) (1) Notwithstanding anything to the contrary herein, Tenant shall not
(voluntarily, by operation of law of otherwise) sublease, assign or otherwise
transfer its interest under this Lease to any subtenant, assignee or other
transferee under a sublease, assignment or other agreement which contains any
provision for the payment of rents based in whole or in part on the income, net
revenues, net receipts or profits derived by any person, including the assignee,
subtenant or other transferee, from the leased premises, provided that any such
assignment, sublease or other agreement may contain provisions for rents based
on a fixed percentage or percentages of gross receipts or sales of the assignee,
subtenant or other transferee. (2) The failure of Tenant to comply with the
provisions of the foregoing clause (1) shall constitute an immediate Event of
Default by Tenant under this Lease and entitle Landlord, at Landlord's election,
immediately to terminate this Lease and pursue any and all other rights and
remedies available to Landlord hereunder, at law or in equity. In addition, in
the event of any sublease, assignment or other transfer by Tenant of, or any
attempt by Tenant to sublease, assign or otherwise transfer, Tenant's interest
under this Lease contrary to the provisions of the foregoing clause (1), without
limiting any other provision of this Lease, tenant hereby expressly covenants
and agrees that Landlord shall be entitled to a decree or order to rescind or
restrain and enjoin such sublease, assignment or other transfer and that Tenant
shall not plead in defense thereof that there may be an adequate remedy at law.
(3) Tenant represents that no Related Party (as defined below) is a tenant in
the same Office Center (as defined below) as the Office Center in which the
leasable floor space covered by this lease is located. For purposes of this
representation, the terms "Related Party" and "Office Center" shall have the
following meanings:
Related Party shall mean, as to any tenant, any person who bears a relationship
to such tenant that is described in section 267(b) or section 707(b) of the
Internal Revenue Code of 1986, as amended.
16
Office Center shall mean, The ▇▇▇▇▇ Center referred to in Section 1A.
38. RIDERS & ADDENDA: All riders and addenda contained herein or attached
hereto shall be deemed to be a part hereof and hereby incorporated in this Lease
by reference.
17
KROGER
LEASE RIDER
This Rider is attached to and made a part of the Lease dated September 19, 1997,
by and between KOALA Miami Realty Holding Co., Inc., a Delaware Corporation
("Landlord") with its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and Radio Unica Corp., a Corporation organized and existing under the
laws of the State of Florida ("Tenant") with its principal office at ▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. Tenant, at its sole expense, agrees to provide tenant improvements to
the premise as noted in the attached Exhibit "B", consisting of
finishes stated such improvements will be performed in accordance with
local building code requirements. Landlord will be furnished, at
tenant's expense, a complete set of "as built" plans upon substantial
completion of improvements.
2. Rent Schedule. Monthly rental payments for the term of the Lease will
be according to the following schedule plus applicable sales tax:
From To Monthly
01-Oct-97 31-Oct-97 $0.00
01-Nov-97 31-Oct-98 $9,690.63
01-Nov-98 01-Nov-99 $10,175.16
01-Nov-99 31-Oct-2000 $10,683.91
01-Nov-2000 31-Oct-2001 $11,218.11
01-Nov-2001 31-Oct-2002 $11,779.02
01-Nov-2002 31-Oct-2003 $12,367.97
01-Nov-2003 31-Oct-2004 $12,986.36
3. Tenant shall have the right to install three (3) antennas (which may be
satellite dish or tower antennas, both of which are referred to as antennas in
this paragraph), on the Common Areas. All costs related to the installation,
maintenance, and operation of such antennas shall be borne by Tenant. Landlord
shall have the right to approve the size and location of the antennas. At
18
Landlord's option and Tenant's cost, the antennas will be screened from view of
the surrounding area by fencing and landscaping acceptable to Landlord. Tenant
shall be responsible, at Tenant's sole cost, for the repair and maintenance of
the antennas and any wall or roof penetrations created to accommodate such
antennas, including but limited to, the water tightness of the roof and walls at
the locations of such penetrations. Tenant shall remove the antennas at the
termination of this Lease and repair any damage to or penetrations of the roof
or walls, all at Tenant's cost. Upon demand, Tenant shall reimburse Landlord for
any increase in Landlord's insurance resulting from the presence of the antennas
of the Common Areas. Tenant shall indemnify and hold Landlord harmless from any
loss, cost, claim or liability arising out of or related to the installation,
use and removal of any such antennas. Tenant will promptly resolve any technical
interference problems with other equipment located within the Center on the
Commencement Date, or caused by changes in Tenant's equipment or transmission
after the Commencement Date.
4. Tenant shall have the right to install additional air conditioning units to
serve the Premises at Tenant's sole cost and expense as to installation,
operation , and maintenance. Landlord shall have the right to approve the size
and location of the air conditioning units and the design of any related
facilities which approval shall not be unreasonably withheld. Tenant shall have
a separate electric meter installed for the additional air conditioning units.
Tenant shall be responsible, at Tenant's sole cost, for the repair and
maintenance of the air conditioning units and related facilities, and any wall
or roof penetrations created to accommodate such facilities, including, but not
limited to, the water tightness of the roof and walls at the locations of such
penetrations. Tenant shall remove the air conditioning units and related
facilities at the termination of this Lease and repair any damage to or
penetrations of the Building, including, but not limited to, the roof and walls,
all at Tenant's cost. Tenant shall indemnify and hold Landlord harmless from any
loss, cost, claim or liability arising out of or related to the installation,
use and removal of any such air conditioning units and related facilities.
5 Tenant shall have the right at Tenant's sole cost to install, operate and
maintain a backup diesel-powered generator and uninterrupted power supply
("UPS") on the Common Areas. Landlord shall have the right to approve the
location of the generator and the design of any modifications to the Building to
accommodate the UPS which shall not be unreasonably withheld. The generator and
UPS will be screened from view by fencing and landscaping which are acceptable
to Landlord. Tenant shall provide any sound barriers or noise reducing apparatus
reasonably required by Landlord to prevent the generator from creating an
nuisance to other tenants. The size and type of generator and UPS shall be
subject to Landlord's prior, reasonable approval. Tenant shall be responsible at
Tenant's sole cost for the repair and maintenance of the generator, the UPS and
connections to the Building's power supply. Tenant shall remove the generator
and UPS at the termination of this Lease and repair any damage to the Premises,
Building and Common Areas, all at Tenant's cost. Upon demand, Tenant shall
reimburse Landlord for any increase in Landlord's insurance resulting from the
presence of the generator and UPS. Tenant shall indemnify and hold Landlord
harmless from any loss, cost, claim or liability arising out of or related to
the installation, use and removal of the generator and UPS. The type and
location of
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any fuel tanks for the generator shall be subject to Landlord's reasonable
approval. If required by Landlord, Tenant shall provide a policy or policies of
insurance insuring against risks associated with the generator and the UPS,
including, but not limited to liability and casualty insurance, and insurance
against releases of petroleum products.
6. Electrical utility service will be separately metered and paid for by the
tenant for lights, air conditioning, heating and general office use.
7. Renewal Option: Tenant shall have one three-year option to renew at the then
monthly rent plus five percent (5%) or the then asking rate of the building,
whichever is less escalated annually by four percent (4%).
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