EXHIBIT 10.10
SECOND AMENDMENT TO LEASE AGREEMENT
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This SECOND AMENDMENT TO LEASE AGREEMENT ("Second Amendment")
is made this 1st day of January 1997, by and between BRICKELL
EQUITIES CORPORATION, LTD. ("Landlord"), and CAPITAL BANK
("Tenant").
W I T N E S S E T H:
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WHEREAS, Landlord's predecessor, AmeriSwiss Associates
("AmeriSwiss"), and Tenant entered into a certain Lease Agreement
dated October 23, 1986, as amended by a certain Rider to Lease
between AmeriSwiss and Tenant, and as further amended by two
Settlement Agreements, each dated June 30, 1989, among AmeriSwiss,
Tenant and ▇▇▇▇▇ Group, Inc. (collectively, the "Settlement
Agreements"), and as further amended by a certain First Amendment
dated December 6, 1993 between Landlord and Tenant (said Lease, as
so amended, is referred to herein as the "Lease") for certain
premises more particularly described in the Lease (the "Existing
Premises") consisting of a portion of the lobby, a portion of the
11th floor and all of the 2nd, 3rd, 4th, 6th and 12th floors of the
office building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, for a term
expiring February 14, 1999 with respect to the portion of the 11th
floor, and August 31, 1997 with respect to the remainder of the
Existing Space; and
WHEREAS, Tenant desires to surrender to Landlord the space
leased on the 3rd and 4th floors and a portion of the 11th floor of
the Building (the "Surrendered Space") on or prior to the Surrender
Date (as hereinafter defined);
WHEREAS, Landlord and Tenant also desire to extend the Term of
the Lease and modify the Lease upon the terms and conditions set
forth in this Second Amendment.
NOW, THEREFORE, in consideration of the sum of TEN and NO/100
DOLLARS ($10.00) paid by Tenant to Landlord, the mutual promises
contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Landlord and
Tenant do hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and
are hereby incorporated by this reference as if set forth in their
entirety.
2. DEFINED TERMS. Capitalized terms in this Second Amendment
shall have the same meaning as such terms have in the Lease, unless
otherwise defined in this Second Amendment.
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3. THE NEW PREMISES.
A. Commencing on January 1, 1997 (the "New Premises
Commencement Date"), the Leased Premises shall consist of a portion
of the lobby, the 2nd, 6th and 12th floors, and a portion of the
11th floor of the Building, all as more particularly set forth on
Exhibit A annexed hereto (collectively, the "New Premises").
Landlord and Tenant have agreed that the New Premises consists of
45,257 square feet of Rentable Area (including 5,392 square feet of
Rentable Area in the lobby) and that the same shall not be subject
to further measurement.
B. All accrued and unpaid Base Rent and Additional Rent
with respect to the Existing Premises shall be apportioned and paid
as of the New Premises Commencement Date.
C. Tenant shall surrender the Surrendered Space to
Landlord on the Surrender Date (as hereinafter defined) in
accordance with Article 34 of the Lease. The term "Surrender Date"
shall mean: (i) July 31, 1997, with respect to the 3rd floor; (ii)
May 31, 1997, with respect to the 4th floor; and (iii) June 30,
1997, with respect to the 11th floor. From and after the New
Premises Commencement Date, no Rent shall be charged for the
Surrendered Space; provided, however, that in the event Tenant
fails to surrender to Landlord the Surrendered Space in accordance
with this subparagraph C, the term "Rent" for purposes of said
Article 34 shall be deemed to mean an annual rate of $27.10 per
square foot of Rentable Area of the Surrendered Space occupied by
Tenant after the Surrender Date.
4. EXTENSION OF TERM OF LEASE.
The Term of the Lease is extended to expire on December
31, 2001 (the "Expiration Date"), unless sooner terminated in
accordance with the provisions of the Lease. Except as expressly
set forth in this Second Amendment, all terms, conditions,
covenants and agreements set forth in the Lease shall be applicable
to Tenant's occupancy of the Premises during the Term, as extended
hereby, and such terms, conditions, covenants and agreements are
expressly incorporated herein by this reference.
5. BUILD-OUT OF THE NEW PREMISES.
Upon execution of this Second Amendment by Landlord and
Tenant, Tenant shall build-out, improve or refurbish the New
Premises at Tenant's expense (subject to Tenant's Allowance as
defined in the Workletter annexed hereto as Exhibit B and
incorporated herein by reference), in accordance with the terms and
conditions of the Workletter. Article 3 of the Lease and Exhibit
B to the lease (including the Construction Contract) are hereby
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deleted in their entirety. Notwithstanding the foregoing Tenant
agrees, at Tenant's expense, to perform any additional work which
may be required at any time during Tenant's occupancy of New
Premises by any authority having jurisdiction over the New Premises
with respect to American's with Disabilities Act and the Florida
Accessability Act as a result of any alteration or improvement made
by Tenant or at the request of Tenant to the new Premises. Tenant
further agrees to indemnify and hold Landlord harmless from and
against any liability, cost, damage or expenses (including but not
limited to reasonable attorney fees) incurred by Landlord as a
result of Tenant's breech of the immediately preceding sentence.
6. BASE RENT. Commencing on the New Premises Commencement
Date and continuing throughout the Lease Term, Tenant shall pay
Base Rent for the New Premises at the rate of $649,532.80 per
annum ($54,127.73 per month) plus applicable sales tax with respect
to the 2nd, 6th and 11th floors, and $446,705.70 per annum
($37,225.48 per month) plus applicable sales tax with respect to
the 12th floor (it being understood that no Base Rent shall be
charged for the Lobby Space during the Term except as provided in
paragraph 12 hereof). Base Rent shall be payable at the times and
in the manner and subject to the provisions of Article 4 of the
Lease except that (i) the first paragraph of said Article 4 shall
not apply and (ii) there shall be no abatement of Base Rent.
7. ADDITIONAL RENT. From and after the New Premises
Commencement Date, Tenant shall pay Additional Rent on the New
Premises in accordance with and as calculated in Paragraph 5 of the
Lease, except that (i) the Base Year shall be calendar year 1997;
and (ii) Tenant's Proportionate Share shall be 10.0823%. Tenant
shall also pay to Landlord annually commencing on the New Premises
Commencement Date as Additional Rent, in lieu of Base Rent, for the
Lobby Space an amount ("Tenant's Lobby Share") equal to Landlord's
estimate of Operating Expenses and Real Estate Taxes for the Lobby
Space for the then calendar year (Landlord's estimate of Operating
Expenses and Real Estate Taxes for the Lobby Space for calendar
year 1997 is $56,616 per annum ($4,718 per month)). Tenant's Lobby
Share shall be adjusted after the end of each year upon
determination of the actual Operating Expenses and Real Estate
Taxes, in the same manner as Tenant's Proportionate Share is
adjusted).
8. USE. Supplementing Article 8 of the Lease, the term
"banking" for purposes of the lobby area shall be shall be deemed
to refer only to those activities customarily conducted by a retail
branch facility of a Florida chartered bank.
9. SUBORDINATION. Supplementing Articles 19 and 20 of the
Lease, Landlord and Tenant acknowledge that the Building is
presently encumbered by a mortgage held by the Gotthard Bank, and
the partied agree to execute and deliver the Subordination,
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Non-Disturbance and Attornment Agreement annexed hereto as Exhibit
C and Landlord agrees to cause Landlord's mortgagee to execute and
deliver the same.
10. PARKING. On and after the New Premises Commencement
Date, the number of parking spaces allotted in the Parking Facility
as provided in Article 17 of the Lease shall be a total of one
hundred and ten (110). All other terms and provisions of Article
17 of the Lease shall continue to apply after the date hereof.
11. MODIFICATIONS. Landlord and Tenant agree that the Lease
is hereby modified as follows:
A. The provisions of paragraphs 1 and 5 of the Rider to
Lease shall not apply to the New Premises from and after the New
Premises Commencement Date and that paragraph 2 of the Rider shall
be deleted in its entirety and the following language shall be
substituted in lieu thereof:
B. Restrictions on Other Tenants and Other Uses:
Landlord shall not lease any portion of the lobby
space of the Building to any banking facility other than that of
Tenant, nor shall any automated teller facility or night depository
be permitted on the lobby floor other than that of Tenant. In
addition, other than Tenant no "commercial banking institution"
(i.e. any financial institution that is allowed to take domestic
deposits) whatsoever shall be permitted to occupy any portion of
the Building except for Delta National Bank and Trust Company of
Florida ("Delta"). With respect to Delta, Landlord represents to
Tenant that Delta's lease prohibits Delta from operating teller
facilities in the Building except for than one (1) "courtesy
teller" within its premises and Landlord agrees to enforce such
restriction.
C. In addition, Landlord and Tenant agree that the
Settlement Agreements shall not apply to the New Premises from and
after the New Premises Commencement Date.
12. RENEWAL OPTION.
A. Tenant shall have the right to extend the Term of
this Lease for one (1) period of five (5) years (hereinafter called
the "Extended Term"), provided Tenant shall notify Landlord in
writing not less than nine (9) months prior to the Expiration Date
that Tenant elects to extend the term of this Lease and provided
further that if Tenant is in default (after the expiration of any
applicable grace period) on the date of giving the option notice
the option notice shall be ineffective or if Tenant is in default
(after the expiration of any applicable grace period) on the date
the Extended Term is to commence, the Extended Term shall not
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commence, and this Lease shall expire at the end of the then
current term. If the lease term is extended as aforesaid this
Lease, as extended, shall be upon the same terms, covenants and
conditions as are set forth therein except that: (i) Base Rent
shall be payable at the rate set forth in paragraph B below plus
applicable sales tax; (ii) the Base Year during the Extended Term
shall be calendar year 2002; (iii) Landlord shall have no
obligation to contribute to or make or pay for any alterations or
improvements to the Premises; (iv) Tenant shall have no further
option to renew or extend the term; and (v) Tenant's Lobby Share
shall be payable during the Extended Term. Failure to comply with
the provisions of this Paragraph A shall be deemed a complete
waiver of the option set forth herein.
B. BASE RENT. Tenant shall pay Base Rent during the
Extended Term as follows: (i) Base Rent for first Lease Year (as
hereinafter defined) of the Extended Term shall be payable at the
rate of $1,324,872.50 per annum ($110,406.04 per month) and (ii)
Base Rent for each of the second, third, fourth and fifth Lease
Years of the Extended Term shall be payable by Tenant at an annual
rate equal to the Base Rent in effect for the immediately preceding
Lease Year, increased by 30% of the Annual CPI Percentage Increase
(as hereinafter defined).
In computing the annual increase for any Lease Year, the
full Base Rent for the previous Lease Year shall be used,
notwithstanding any abatements, concessions or reductions provided
for in the Lease or otherwise applicable during such Lease Year.
For purposes of this Lease, the term "Lease Year" shall
mean each twelve (12) month period falling wholly or partly within
the Extended Term and commencing on the first day of the Extended
Term or any anniversary of said date.
For purposes of this Lease, the term "Annual CPI
Percentage Increase" shall mean the increase, if any, expressed as
a percentage, in the Consumer Price Index for the month of November
immediately preceding each Lease Year over the Consumer Price Index
for the previous November. As used herein "The Consumer Price
Index" shall mean and refer to The Consumer Price Index for all
Urban Consumers, Miami - Ft. Lauderdale, Fla., All Items,
(1982-4=100)", issued by the Bureau of Labor Statistics of the
United States Department of Labor or the generally accepted
successor thereto should such publication be discontinued.
C. The foregoing option to extend the Term of this Lease
shall apply to all of the New Premises leased by Tenant in the
Building (it being understood that Tenant shall not have the option
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to extend the term of this Lease with respect to less than the
total Rentable Area of the New Premises then leased by Tenant in
the Building.
13. BROKERS.
A. Tenant represents and warrants that it has dealt only
with Landlord's agent, AFA Real Estate Services, Inc. (the
"Broker") and Tenant's consultant, The Amend Group, in negotiating
and executing this Second Amendment. Tenant covenants and agrees
to pay, hold harmless and indemnify Landlord from and against any
and all costs, expenses (including reasonable attorneys' fees
before trial, at trial and on appeal) or liability for any
compensation, commissions, or charges claimed by the Amend Group or
any other broker, agent or consultant other than Broker with
respect to this Second Amendment or the negotiation thereof.
B. At any time after the Commencement Date, Landlord
shall, upon Tenant's written request, reimburse Tenant for up to
$82,341.56 of the fees paid by Tenant to The Amend Group with
respect to this Second Amendment. In addition, in the event Tenant
elects to extend the Term upon the terms and conditions set forth
herein, Landlord shall, upon Tenant's written request (given at any
time after Landlord receives the first monthly installment of Base
Rent due during the Renewal Term), reimburse to Tenant up to
$116,347.51 of the fees paid by Tenant to The Amend Group with
respect to this Second Amendment.
14. CANCELLATION OPTION.
Provided Tenant shall keep, observe and perform all of
the terms, covenants and conditions of this Lease on Tenant's part
to be kept, observed and performed, Tenant shall have the right to
cancel this Lease at any time after the New Premises Commencement
Date and prior to the Expiration Date, provided Tenant shall notify
Landlord in writing not less than six (6) months prior to the date
set forth in said notice as the effective date of cancellation (the
"Cancellation Date") that Tenant irrevocably elects to cancel this
Lease as of the Cancellation Date; provided, however, that: (i)
together with the delivery of such notice, Tenant shall pay to
Landlord a cancellation fee, in immediately available funds, in the
amount set forth on EXHIBIT D annexed hereto; (ii) if requested
Tenant shall execute a termination agreement in a form reasonably
acceptable to Landlord; (iii) all Base Rent and Additional Rent
shall be apportioned and paid as of the Cancellation Date; (iv)
Tenant shall pay all sales taxes applicable to the cancellation;
and (v) the New Premises will be surrendered on or before the
Cancellation Date in the condition required by the Lease. The
obligations set forth in this paragraph 15 shall survive the
cancellation of the Lease. The provisions of this paragraph 16
shall not be applicable during the Extended Renewal Term.
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15. RATIFICATION. In the event of any conflict or ambiguity
between this Second Amendment and the Lease, this Second Amendment
shall control. The parties hereby ratify and confirm their rights
and obligations under the Lease as modified by this Second
Amendment. Landlord and Tenant each represent and warrant to the
other (i) that the execution and delivery of the Second Amendment
has been fully authorized by all necessary corporate action, (ii)
that this document is valid, binding and legally enforceable in
accordance with its terms.
IN WITNESS WHEREOF, Landlord and Tenant have each executed
this Second Amendment as of the day and year first above written.
WITNESSES: LANDLORD:
BRICKELL EQUITIES CORPORATION,
LTD.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
WITNESSES: TENANT:
CAPITAL BANK
/s/ Jacky Portal /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Jacky Portal Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
/s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: M. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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