This Lease
(“Lease”) is entered into as of October 25
th , 2006, by and between 7007 PALMETTO INVESTMENTS,
LLC. , a Florida limited liability company, whose post office
address is 1500 San Remo Avenue, Suite 251, Coral Gables,
Florida 33146 (“Landlord”), and SBS MIAMI BROADCAST
CENTER, INC., a Delaware corporation, whose post office address
is 2601 S. Bayshore Drive, PH 2, Miami, Florida 33133
(“Tenant”).
WHEREAS, Landlord,
as seller, and Spanish Broadcasting System, Inc.,
(“SBS”) as buyer, entered into that Agreement for
Purchase and Sale dated August 24, 2006, as the same has been
amended and assigned to Tenant by that Assignment and Assumption of
Agreement of even date herewith (collectively, the
“Agreement”), for the purchase and sale of the Property
(as such term is defined in Section 1.2 of the Agreement); the
parties acknowledge and agree that the term “Premises”
as used herein shall have the same meaning as the term
“Property” as set forth in the Agreement;
and
WHEREAS, the
Agreement provides that if it has not been terminated on or before
the expiration of the Due Diligence Period (as such term is defined
in the Agreement), and provided that certain other conditions have
been satisfied as described in the Agreement, then Landlord and
Tenant shall enter into a “triple net” lease to allow
Tenant to take possession and occupy the Premises upon the
expiration of the Due Diligence Period and prior to Closing (as
such tem is defined in the Agreement);
WHEREAS, the Due
Diligence Period is set to expire simultaneously with the execution
of this Lease, and all other conditions prerequisite to the
occupancy of the Premises before Closing as provided in the
Agreement have been satisfied or waived.
NOW, THEREFORE, in
consideration of the terms, conditions and mutual covenants set
forth herein, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions set forth in
the Agreement, Landlord and Tenant agree as follows:
1.
Recitals . The foregoing recitals are true and
complete and are by this reference incorporated herein.
2.
Definitions . The following terms used in this Lease
shall have the meanings set forth below. Initially capitalized
terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement.
(a)
Base Rent : $5,166.67 per month (calculated based
upon $1.00 per square foot of building space per year; i.e. 62,000
sq. feet) plus Florida sales tax.
(b)
Brokers : See Paragraph 20 below.
(c)
Commencement Date : October 25, 2006.
(d)
Rent Commencement Date : November 25,
2006
(e)
Expiration Date : The Closing Date (as such term is
defined in the Agreement), or the date of earlier termination if
sooner terminated pursuant to the terms of this Lease or the
Agreement.
(e)
Security Deposit : NONE.
3.
Lease . Landlord leases to Tenant the Premises, and
Tenant leases the Premises from Landlord, subject to the terms and
conditions of this Lease. Tenant accepts the Premises in their
“AS IS” condition, “with all faults,” and
otherwise as in the condition described in Section 19 of the
Agreement, which Agreement is by this reference incorporated
herein. The Lease term (“Lease Term”) shall begin on
the Commencement Date and end on the Expiration Date.
4.
Use . Tenant shall use the Premises only for office
purposes and any other lawful purposes. Tenant covenants that its
use and occupation of the Premises shall be in compliance with all
statutes, codes, rules, regulations, ordinances, orders, judgments,
decrees, writs, permits, certificates, licenses, or other
authorizations, directions or requirements of any federal, state,
county, municipal, or other government or governmental
instrumentality having jurisdiction or authority over Landlord,
Tenant, and/or all or any part of the Premises (“Legal
Requirements”). Tenant further covenants that it shall not
cause the Premises to be used to generate, manufacture, dispose,
transfer, produce, or process Hazardous Materials (as such term is
defined below), except in compliance with Legal Requirements, nor
cause a release of Hazardous Materials onto the Premises; Tenant
shall comply with all applicable Legal Requirements related to
Hazardous Materials. As used herein, “Hazardous
Materials” are defined as any flammable explosives,
radioactive materials, oil or petroleum products and their by
products, asbestos, polychlorobiphenyls, hazardous materials,
hazardous wastes, hazardous or toxic substances, or related
materials as defined under or regulated by any Legal Requirements,
including, without limitation, the following statutes and the
regulations promulgated under their authority: (a) the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.);
(b) the Hazardous Materials Transportation Act, as amended (49
U.S.C. §§ 1801 et seq.); and (c) the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C.
§§ 6901 et seq.).
5.
Rent . From and after the Rent Commencement Date,
Tenant shall pay the Base Rent and all sums payable under this
Lease when due, without notice or demand, with applicable taxes
thereon, to Landlord at 1500 San Remo Avenue, Suite 251, Coral
Gables, Florida 33146, or at such other address as Landlord shall
duly notify Tenant in writing. From and after December 1, 2006
(the “First Payment Date”), Base Rent is payable
monthly in advance on or before the first of each calendar month
during the Lease Term (prorated for partial months, if any). From
and after the Rent Commencement Date, all costs and expenses that
Tenant assumes or agrees to pay pursuant to this Lease shall be
treated as additional rent (“Additional Rent”) and, in
the event of nonpayment thereof, Landlord shall have all the rights
and remedies provided in this Lease or otherwise provide by law.
Except as expressly provided in this Lease or in the Agreement,
Tenant shall have no right of set-off, counterclaim, abatement or
reduction with respect to the payment of Rent, Additional Rent or
any other payments due hereunder. The payment due on the First
Payment Date shall include the Base Rent and Additional Rent
attributable to the period between the Rent Commencement Date and
the First Payment Date.
6. Net
Net Net Lease . This is a triple net Lease and from and
after the Rent Commencement Date, Landlord shall not be obligated
to pay any charge whatsoever relating to the Premises, except as
provided herein. From the Commencement Date through the
Rent
Commencement
Date, Tenant shall not be obligated to pay any charge whatsoever
relating to the Premises.
(a) Without
intending to limit the foregoing, and subject to subparagraphs
(b) and (c) below, Tenant hereby covenants to pay
directly and be responsible for the timely payment and discharge of
the following amounts from the Rent Commencement Date through the
expiration of the Lease Term: (i) all taxes and assessments imposed
or levied upon the Premises, or any portion thereof, (ii) all
operating expenses of the Premises (including, without limitation,
all charges for water, sewer, electricity and all other utilities,
as well as for janitorial, landscaping and other contracted
services), (iii) all maintenance expenses relating to the
Premises (including, without limitation, all charges for labor,
services and materials used in connection with any improvements,
repairs or replacements made or to be made to the Premises), and
(iv) all premium payments and other costs of insurance
required to be maintained by Tenant pursuant to this Lease
(including, without limitation, half of all deductibles payable
related to any claim for insurance proceeds, provided, however,
that Tenant shall be responsible for paying all the deductible
payable (on any claim) up to an amount equal to fifty percent (50%)
of the maximum deductible payable under Landlord’s insurance
coverage (that is, 50% of $337,150.00) before Landlord shall be
obligated to pay the balance, if any, of the deductible payable);
provided, however, that in no event shall Tenant be responsible for
making any debt service or other payments under the Existing Loan
or any capital repairs or improvements to the Premises. The
Landlord acknowledges and agrees that it shall be responsible for
the timely payment of all debt service or other payments under the
Existing Loan.
(b) Further,
however, and again without intending to limit the foregoing, from
the Rent Commencement date through the expiration of the Lease Term
Tenant shall pay a prorated share of the estimated 2006 real estate
taxes monthly, in an amount equal to one twelfth (1/12) of the 2005
taxes, taking into account the maximum allowable discount for early
payment, to be paid to Landlord together with the Base Rent. Within
ten (10) days following the date the Landlord receives the
2006 tax bill for the Premises, the Landlord shall calculate the
Tenant’s proportionate share of the 2006 taxes due from the
Rent Commencement Date through December 31, 2006 taking into
account the maximum allowable discount for early payment and the
monthly payments already made by Tenant in accordance with the
preceding sentence, and Landlord shall thereafter provide Tenant
with written notice thereof showing the excess amount, if any (the
“Reconciliation Amount”), due from Tenant and the
calculations used to come up with the Reconciliation Amount. Tenant
shall pay Landlord the Reconciliation Amount within ten
(10) days following its receipt of the written notice setting
forth such amount and Landlord shall thereafter pay the 2006 taxes
prior to its delinquency. Notwithstanding anything to the contrary
contained herein, the parties acknowledge and agree that following
the time that Tenant pays the Reconciliation Amount to Landlord,
Tenant shall no longer be responsible for paying any additional
amounts to Landlord in accordance with this paragraph
6(b).
(c) Further,
however, and again without intending to limit the foregoing, Tenant
acknowledges and understands that Landlord has already obtained and
paid for a policy or policies of commercial liability,
casualty/property insurance coverage for the Premises. Accordingly,
from the Rent Commencement Date through the expiration of the Lease
Term, Tenant shall be responsible for paying to Landlord together
with Base Rent an amount equal to $10,160.00 per month, which is
the prorated share of the insurance premium paid by Landlord.
Further, in the event that the Tenant terminates any of the
insurance policies in accordance with the provisions of paragraph 8
below, Tenant shall be responsible for paying to Landlord at such
time as the same becomes due, a prorated share of the remaining
“minimum earned premium”, if any, due with respect to
such terminated insurance policies (by way of clarification only,
in the
event that the
policies contain a six month “minimum earned premium”
equal to $60,000, the Rent Commencement Date is two months into the
term of the insurance policy and Tenant terminates the insurance
policy two months later, the Tenant would owe Landlord the amount
by which $40,000 (representing four of the six months of the
minimum earned premium) exceeds the regular monthly installments of
insurance premium provided above).
Notwithstanding
anything contained in this Section 6 to the contrary, Landlord
shall be responsible for the payment of all sales taxes due and
payable on installments of real estate taxes and insurance premiums
paid to Landlord by Tenant during the Lease Term pursuant to this
Section 6. The provisions of the foregoing sentence shall
survive the expiration or earlier termination of this
Lease.
7.
Condition of Premises . Tenant shall be permitted to
make alterations, improvements, other physical changes which
materially alter the condition of the Premises, (collectively
“Alterations”) with (i) Landlord’s prior
consent, which Landlord shall not unreasonably withhold, condition
or delay, and (ii) the prior consent of Landlord’s
mortgage lender, Great Florida Bank (the “Bank”),
solely to the extent required under the Existing Loan Documents.
Notwithstanding anything to the contrary contained herein, neither
the Landlord nor the Bank shall be required to consent to any
alterations, improvements or other physical changes which do not
materially alter the condition of the Premises. All Alterations
shall be made with all applicable Legal Requirements, and Tenant
shall hold Landlord harmless from and shall indemnify Landlord and
Landlord’s employees and other agents against any and all
losses, liabilities, claims, damages or expenses (including
reasonable attorney’s fees) for any injury or damage to any
person or property (including damage to the environment) arising
directly or indirectly from construction undertaken at the Premises
without the appropriate governmental permit or authorization.
Landlord and Landlord’s employees and other agents shall have
the right, but not the obligation, upon reasonable prior written
notice to Tenant, and at reasonable times, to enter upon and pass
through the Premises from time to time in order to examine the
Premises. In the event of an emergency, Landlord and
Landlord’s agents shall have the right, but not the
obligation, without any notice to Tenant, to take such actions,
whether on or off the Premises, as Landlord shall deem appropriate
to respond to the emergency. Tenant shall maintain the Premises in
substantially the same condition as at the beginning of the Term,
and subject to any Alterations made pursuant to this paragraph 7,
ordinary wear and tear and casualty and condemnation
excepted.
8.
Insurance . Tenant and Landlord acknowledge and
understand that Landlord has already obtained and paid for a policy
or policies of commercial liability, casualty/windstorm/property
insurance coverage for the Premises, which policy shall name
Landlord, any mortgagee or fee owner, and Tenant as insureds as
their interests may appear, and shall otherwise comply with the
requirements of this paragraph 8, the Agreement, and the Existing
Loan Documents. In the event that Tenant notifies Landlord that it
desires to maintain its own insurance coverage, then, Tenant shall
obtain and maintain during the Lease Term, at its own cost and
expense, the same or, solely to the extent elected by Tenant in its
sole and absolute discretion, better insurance coverage, and shall
pay the costs of the initial and all renewal premiums therefor.
Such insurance shall name Landlord, any mortgagee or fee owner, and
Tenant as insureds as their interests may appear, shall otherwise
comply with the requirements of this paragraph 8 and the Agreement,
and shall be subject to the prior written approval of the
Bank.
Solely to the
extent Tenant obtains its own insurance in accordance with the
preceding paragraph, Tenant shall deliver to Landlord certificates
of the required insurance and thereafter copies of renewals as
required and the certificate shall provide that thirty
(30) days notice shall be given to Landlord and the Bank in
the event of cancellation, material change, alteration
or
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