EXHIBIT 10.10
SUBLEASE
THIS SUBLEASE is made as of January 6, 2004 between
TradeStation Securities, Inc. (f/k/a Online Trading, Inc.), a Florida
corporation ("Sublandlord") and JVB Financial, Inc., a Florida corporation
("Subtenant").
BACKGROUND
A. Sublandlord is the lessee of approximately 6,747
square feet within the office building ("Building") designated as Suite 200 in
the Fountain Square III office building f/k/a Highwoods Square III Building,
located at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Premises")
pursuant to a lease ("Prime Lease") dated August 13, 1998 and amended on March
31, 1999 and June 2nd 1999 between ACP Office I, LLC, successor in interest to
Highwoods/Florida Holdings, L.P., a Delaware limited partnership ("Prime
Landlord"), as landlord, and Sublandlord, as tenant. A copy of the Prime Lease
is attached to this Sublease as Exhibit A.
B. Subtenant desires to sublease from Sublandlord the
Premises.
C. Sublandlord is willing to sublease to Subtenant the
Premises pursuant to the terms provided herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties agree as follows:
1) DEFINED TERMS. All capitalized terms not defined herein shall have the
meanings assigned in the Prime Lease unless otherwise indicated herein.
2) PREMISES. Sublandlord lets and demises to Subtenant, and Subtenant
takes and hires, subject and subordinate to the Prime Lease, the Premises (as
defined in the Prime Lease), together with the rights of the Sublandlord, to the
extent provided in the Prime Lease, to use all common areas of the Building.
Subtenant has no rights under the Lease with respect to the Expansion Premises,
which is leased by Sublandlord under the Prime Lease.
3) TERM. The term of this Sublease ("Sublease Term") shall commence on the
date as of which: (a) this Sublease has been executed and delivered to all
parties; (b) the Prime Landlord's consent, pursuant to Section 10 below, has
been obtained; and (c) the initial installment of the Security Deposit in the
amount of $21,365.50 has been delivered to Sublandlord in cleared funds
("Commencement Date"), and shall end on February 28, 2007. Notwithstanding
anything in this Sublease to the contrary, the Sublease Term shall automatically
expire upon the expiration or termination of the term of the Prime Lease.
Sublandlord shall have no obligation whatsoever to exercise any rights
Sublandlord may have under the Prime Lease to extend the term thereof or any
other right provided in the Prime Lease.
If Sublandlord shall default beyond all applicable grace periods in the
payment of any Base Rent or Additional Rent which Sublandlord is required to pay
as tenant under the Prime Lease, Subtenant may cure such default by payment of
the required sums directly to Prime Landlord (although this provision shall not
be construed to impose an obligation on Prime Landlord to accept such tender).
Notwithstanding any of the foregoing to the contrary, Sublandlord shall provide
Subtenant, within three (3) business days of receipt by Sublandlord, any written
notice of default Sublandlord receives from the Prime Landlord, and shall use
reasonable efforts to keep Subtenant advised of the status of the alleged
default or dispute with the Prime Landlord. If Subtenant shall so cure any
obligation of Sublandlord under the Prime Lease, Sublandlord shall reimburse
Subtenant promptly following confirmation of such payment from Prime Landlord.
4) RENT.
a) Base Rent. Base Rent shall mean the following:
PERIOD BASE RENT (annual) BASE RENT (monthly)
------- ---------------------------------- -------------------
Year 1 May 1, 2004 - December 31, $54,448.29 (based on $8.07 per rsf) $4,537.36
2004
Year 2 January 1, 2005 - December 31, $56,607.33 (based on $8.39 per rsf) $4,717.28
2005
Year 3 January 1, 2006 - December 31, $58,901.31 (based on $8.73 per rsf) $4,908.44
2006
Year 4 January 1, 2007 - February 28, $61,262.76 (based on $9.08 per rsf) $5,105.23
2007
b) Payment of Base Rent and Operating Expenses. Subtenant shall
pay to Sublandlord beginning on May 1, 2004 ("Rent Commencement Date") and
throughout the remainder of the Sublease Term, without setoff or deduction
whatsoever, the Base Rent, applicable taxes, and Operational Expense Pass
throughs which are passed through to Sublandlord (see Lease Addendum No. 1 to
Prime Lease) with respect to the Premises ("Operating Expenses") as Additional
Rent. Base Rent shall be due and payable in advance, without demand, in monthly
installments in the amounts provided in Column 3 of the Table in Section 4(a)
above on the first calendar day of each calendar month during the Sublease Term,
beginning on the Rent Commencement Date. Subtenant shall pay with each
installment of Base Rent, the following: (i) any sales, use or other tax, now or
hereafter, imposed on Sublandlord relating to lease of the Premises to Subtenant
or the payment of rent (including Base Rent and Additional Rent) under this
Sublease; and (ii) Actual Operating Expenses incurred.
c) Rent Abatement. Rent is abated for the period beginning with
the Commencement Date and ending on the day prior to the Rent Commencement Date.
d) Payment Location. Subtenant shall pay Base Rent, applicable
taxes, Operating Expenses and all amounts due hereunder, to Sublandlord at 0000
XX 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 or such other location designated by
Sublandlord.
e) Other Charges and Assessments; Additional Rent. Any charges or
assessments made or demanded by Prime Landlord under the Prime Lease that are
payable by Sublandlord other than as part of Sublandlord's monthly Base Rent and
Operating Expense obligations (e.g., adjustments for prior year Operating
Expenses) shall be paid by Subtenant to Sublandlord within the later of (i) five
(5) calendar days after written demand therefor and (ii) ten (10) days prior to
the date Sublandlord is to pay such amount to the Prime Landlord. All such
charges and assessments together with Operating Expenses payable by Subtenant
hereunder are collectively called "Additional Rent" and shall be deemed "rent"
for the purposes of this Sublease and Chapter 83 of the Florida Statutes. Upon
the written request of Subtenant, Sublandlord will provide a copy of any support
for the additional charge which Sublandlord receives from Prime Landlord.
f) Late Payments. Subtenant agrees to timely pay all Base Rent,
Additional Rent, Security Deposit payments and all other amounts provided to be
paid by Subtenant under this Sublease at the times and in the manner herein
provided. For any rent or other payment due hereunder which is not paid within
five (5) calendar days of its due date (or, if later, the third business day
prior to the date Sublandlord would incur late payment fees or interest under
the Prime Lease), Subtenant agrees to pay to Sublandlord a late payment fee as
per Section 4 of the Prime Lease.
5) USE. Subtenant shall use the Premises as a brokerage firm office and as
an accounting firm office, or other general office use as permitted by the Prime
Lease, and for no other purpose without the prior written consent of Sublandlord
and Prime Landlord. The following entities may occupy the Premises as licensees
of the Subtenant: (1) JVB Financial Group, L.L.C.; (2) JVB Financial Holdings,
L.L.C.; (3) JVB Financial Services, L.L.C.; and (4) Sherb and Company, LLP
(collectively, the "Occupants"). However, such occupancy shall not be construed
to allow Subtenant to sublet the Premises or permit the occupancy of any entity
or person other than the Occupants without obtaining consent of the Sublandlord
and Prime Landlord pursuant to the terms of the Prime Lease.
6) SECURITY DEPOSIT.
a) Payment of Security Deposit. The security deposit for the
Premises shall be $42,731.00 ("Security Deposit"). As an accommodation to the
Subtenant, Sublandlord shall accept payment of the Security Deposit, as follows:
i) Partial payment of $21,365.50 for the Security
Deposit shall be delivered to Sublandlord upon execution of this Sublease; and
ii) Subtenant shall make monthly payments to Sublandlord
for the balance of the Security Deposit in the amount of $5,341.38 on the 1st
day of the month for each of the first
four months after the execution of this Sublease, but in all events that entire
Security Deposit shall be paid to Sublandlord no later than April 30, 2004. This
payment shall be in addition to any and all other monies that may be due and
owing and non-payment for any reason constitutes a default of this Sublease.
b) Use of Security Deposit. Upon the occurrence of any default,
or upon the failure by Subtenant to timely pay any sum it is obligated to pay
hereunder, Sublandlord may, from time to time, without prejudice to any other
remedy, and without prior notice to Subtenant, execute upon any funds then held
by Sublandlord and apply such proceeds to the curing of such default or the
payment of such sums.
c) Replenishment of Security Deposit. Notwithstanding anything
herein to the contrary, in the event Sublandlord executes upon the Security
Deposit or any portion thereof, Subtenant shall replenish the Security Deposit
by delivery to Sublandlord of the total amount drawn to cure the default of the
Subtenant in immediately available funds within five (5) business days after
Sublandlord's demand therefor. Subtenant shall have no right to interest on such
Security Deposit and Sublandlord may commingle such amount with its other funds.
d) Prime Landlord Security Deposit. Subtenant shall have no
rights with respect to Sublandlord's security deposit with Prime Landlord. In
the event Prime Landlord applies any of Sublandlord's security deposit for
matters caused by Subtenant or arising during the Sublease Term, Subtenant shall
reimburse Sublandlord for such amounts within five (5) business days after
demand therefore, upon showing support for the demand.
e) Return of Security Deposit. To the extent that the Security
Deposit has not been applied to the curing of any default of Subtenant or to the
payment of any sum owed by Subtenant pursuant to this Sublease and provided no
event has occurred that with the passage of time or giving of notice would
constitute a default, release of the Security Deposit to the Subtenant shall be
as follows:
i) On December 31, 2005, Sublandlord shall release
$10,682.75;
ii) On December 31, 2006, Sublandlord shall release
$10,682.75; and
iii) Thirty days after the later of the termination or
expiration of this Sublease or the return of Sublandlord's security deposit with
Prime Landlord, the remaining balance of the Security Deposit shall be returned
to Subtenant, provided that the Sublandlord shall not have been denied, by Prime
Landlord or Subtenant, access or an opportunity upon termination or expiration
of the Sublease Term to conduct a satisfactory inspection of the Premises.
7) TERMS AND CONDITIONS OF SUBLEASE.
a) Prime Lease Terms and Conditions. Other than the obligations
for rent, Operating Expenses, Security Deposit and other matters which are
expressly addressed in this Sublease as between Sublandlord and Subtenant,
Subtenant assumes and shall perform all obligations
and comply with all covenants and agreements of Sublandlord as "Tenant" under
the Prime Lease with respect to the Premises throughout the Sublease Term, and
shall tender such performance directly to Prime Landlord, so that the obligation
of Sublandlord as Tenant under the Prime Lease relating to the Premises during
the Sublease Term shall be fully satisfied and discharged by Subtenant.
Subtenant agrees that each and every covenant and agreement of the Prime Lease
is agreed to be a term, condition, covenant and agreement of this Sublease as
applicable to the Premises, and "Landlord" in the Prime Lease shall mean
Sublandlord in this Sublease and "Tenant" in the Prime Lease shall mean the
Subtenant in this Sublease, except where such construction would clearly be
inapplicable, in which event the original meaning shall apply. Subtenant shall
have the right to negotiate directly with Prime Landlord concerning leasing the
Premises after the expiration of the Sublease Term, however, Subtenant shall not
request from Prime Landlord, and shall not have any authority to approve or
effect, any change or modification to the Prime Lease except with the prior
written consent of Sublandlord.
b) Subtenant Rights. Subtenant shall have all the rights and
privileges of "Tenant" under the Prime Lease except as limited or modified by
this Sublease, and Subtenant may exercise the same without further consent or
approval of Sublandlord, except that Subtenant shall have no right to modify or
amend the Prime Lease, take any action inconsistent with the terms of this
Sublease or take any action or fail to take any action that would alone, or with
the passage of time, constitute a default under the Prime Lease or this
Sublease. Sublandlord shall have no obligation to provide any of the services,
or fulfill any of the obligations, of Prime Landlord under the Prime Lease and
if Prime Landlord fails to do so, Sublandlord's obligation with respect to such
failure to perform shall be limited to using reasonable efforts (which shall not
include the initiation or prosecution of litigation) to obtain performance by
Prime Landlord, provided that the expenses incurred by Sublandlord in connection
therewith shall be reimbursed by Subtenant upon demand; provided, however, that
if the Prime Landlord's failure to perform results in conditions that render the
Premises uninhabitable, create serious risks of health or personal injury, or
oppressive conditions (such as total failure of operation of the HVAC for an
extended time period), then, solely at Subtenant's cost and expense, and using
counsel reasonably acceptable to Sublandlord, Subtenant may, by and through and
in the name of Sublandlord, initiate litigation, the subject matter of which is
limited solely to Prime Landlord's failure to perform (as further described
above). Further, in this situation, Sublandlord must agree, exercising good
faith in making its decision, that Prime Landlord is in default. Sublandlord
shall have the right to review all pleadings, motions and other papers before
filed, and, if in Sublandlord's opinion, a conflict of interest between
Sublandlord and Subtenant arises, Sublandlord shall be entitled, at solely
Subtenant's cost and expense, to engage separate counsel to represent
Sublandlord's interest in the dispute. In no event shall Sublandlord have a duty
to perform any obligations of Prime Landlord that are, by their nature, the
obligation of an owner or manager of real property. For example, Sublandlord
shall not be required to provide the services or repairs that the Prime Landlord
is required to provide under the Prime Lease. Sublandlord shall have no
responsibility for or be liable to Subtenant for any default, failure or delay
on the part of Prime Landlord in the performance or observance by Prime Landlord
of any of its obligations under the Prime Lease.
c) Indemnity and Insurance. Any of Subtenant's indemnity
obligations arising under the Prime Lease (through this Sublease) shall inure to
the benefit of both Sublandlord and Prime Landlord. In addition, Subtenant shall
obtain all insurance policies that are required to be obtained by the Tenant
under the Prime Lease and include Sublandlord as a named or additional insured.
8) CONSTRUCTION AND CONDITION OF PROPERTY. Subtenant takes the Premises
and the personal property contained within the Premises in "as is" "where is"
condition. Subtenant shall submit to Sublandlord for approval all plans and
specifications for any construction, renovation or alteration to be performed by
Subtenant in the Premises prior to submission of such plans and specifications
to the Prime Landlord in accordance with the Prime Lease, and shall not submit
any such plans and specifications to the Prime Landlord unless and until
Sublandlord has approved the same in writing. Subtenant shall perform all
construction work in the Premises at its sole cost and expense, and in
conformance with the procedures set forth in the Prime Lease. Subtenant will
hold Sublandlord harmless for same and will indemnify Sublandlord should there
be any injury to person or property caused by any construction, renovation or
alteration. Upon the expiration of the lease or earlier termination, Subtenant
shall deliver the Premises "Broom Clean" and, except to the extent Prime
Landlord has, in writing, otherwise approved, in substantially the same
condition as it was on the Commencement Date. Sublandlord acknowledges that
Subtenant intends to submit certain alterations to Sublandlord and Prime
Landlord for approval, including: (a) installation of carpeting; (b) cleaning,
repairing or stripping the wallpaper; (c) demolition of the walls separating the
two northernmost offices; and (d) installation of a door at the entry hallway
leading to the trading floor. Notwithstanding this acknowledgement, Subtenant
may not commence such alterations until Subtenant receives the required
approval.
9) SUBLANDLORD'S REMEDIES. Sublandlord's rights and remedies shall be
subject to the same notice and cure periods as are applicable under the Prime
Lease, except that, where necessary to prevent a default by Sublandlord under
the Prime Lease, Subtenant shall have no greater time period to cure a breach
under the Sublease than the last day available to cure a breach under the Prime
Lease. Notwithstanding the foregoing, in the event Sublandlord determines in its
sole discretion that Subtenant will not or cannot cure a default under the Prime
Lease caused by Subtenant, Sublandlord may, but is not obligated to, cure such
default, after which, Subtenant shall reimburse and make whole Sublandlord for
all costs and expenses (including reasonable attorney's' fees) incurred by
Sublandlord in connection therewith within five (5) business days after written
demand for reimbursement is made. In the event Subtenant shall be in default
hereunder (or under the Prime Lease by extension of this Sublease), Sublandlord
shall have all rights and remedies of the Prime Landlord under the Prime Lease
against Subtenant concerning remedies for default, in addition to all other
rights and remedies at law or in equity.
10) PRIME LANDLORD'S CONSENT. This Sublease and the obligations of the
parties hereunder are expressly conditioned upon the Prime Landlord executing
this Sublease in the space provided on the signature page or in another form
reasonably acceptable to Sublandlord. Sublandlord and Subtenant hereby agree,
for the benefit of Prime Landlord, that this Sublease
and Prime Landlord's consent hereto shall not (a) create privity of contract
between Prime Landlord and Subtenant; (b) be deemed to have amended the Prime
Lease in any regard (except as provided in this paragraph); and (c) be construed
as a waiver of Prime Landlord's right to consent to any assignment of the Prime
Lease by Sublandlord or any further subletting of the Premises, or as a waiver
of Prime Landlord's right to consent to any assignment by Subtenant of the
Sublease or any subletting of the Premises or any part thereof.
11) SIGNAGE. Subtenant may utilize two separate spaces for signage
identification both at the entry to the Premises and in the lobby directory if
approved by the Prime Landlord pursuant to the terms of the Prime Lease.
12) FURNITURE. Sublandlord transfers any ownership interest it may have in
the personal property contained within the Premises to the Subtenant on the
Commencement Date at no additional charge.
13) MISCELLANEOUS.
a) Brokers. Subtenant and Sublandlord represent and warrant that
neither has dealt with any real estate broker regarding this transaction other
than Commercial Property Realty Advisors, which has represented Sublandlord in
this transaction, and Xxxxxx Brothers, which has represented the Subtenant in
this transaction. Sublandlord and Subtenant shall each pay the costs of its own
broker and shall hold harmless and indemnify the other for any commission
claimed by any broker not representing it.
b) Notices. Notices shall be sent as provided for in the Prime
Lease to the following address:
i) If to Sublandlord:
TradeStation Securities, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
xx) If to Subtenant:
JVB Financial, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
iii) If to Prime Landlord, in accordance with the Prime
Lease.
c) Exhibits. All exhibits attached to this Sublease are
incorporated into and made a part of this Sublease.
d) Time of the Essence. Time, wherever stated, is declared to be
of the essence of the Sublease.
e) Modifications. No modification or amendment of this Sublease
shall be enforceable unless it is in writing and signed by Sublandlord and
Subtenant and is approved by Prime Landlord.
f) Headings. Headings herein are for convenience only and have no
bearing on the construction of this Sublease or the intent of the parties.
g) Parking. Subtenant shall be entitled to use of three of
Sublandlord's covered parking spaces allocated to the Premises at no additional
charge.
h) Lease Addendum No. 2. The provisions of Lease Addendum No. 2
shall not be applicable to the Subtenant.
i) Conflict. In the event of a conflict between the terms of the
Prime Lease and those contained in this Sublease, this Sublease shall govern.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Sublease is executed as of the day and year
first written above.
Witnesses: SUBLANDLORD:
/s/ Xxxxx Xxxxxxxxxx TradeStation Securities, Inc.
-------------------------------------
Print Name: Xxxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------------- ----------------------------------
Print Name: Xxxxxxx Xxxxxx Print Name: Xxxx Xxxxx
Title: VP
Witnesses: SUBTENANT:
/s/ Xxxxxx XxXxxxxxx JVB Financial, Inc.
------------------------------------
Print Name: Xxxxxx XxXxxxxxx
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------------ -----------------------------------
Print Name: Xxxxx Xxxxxx Print Name:
----------------------------
Title:
---------------------------------
