SECOND AMENDMENT TO LEASE
EXHIBIT 10.2
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (“Second Amendment”) is made as of the 1st day of
December, 2004, between IRRADIO HOLDINGS, LTD., a Florida limited partnership, (“Landlord”)
and SPANISH BROADCASTING SYSTEM, INC., a Florida corporation (“Tenant”).
PRELIMINARY STATEMENTS
A. Landlord and Tenant entered into that certain Lease Agreement dated December 14, 2000 (the
“Original Lease”), under which Tenant leases certain premises known as Penthouse II,
stipulated to consist of 13,953 square feet of leasable space, and Storage Space No. 12
(“Storage Space No. 12”) (together the “Original Premises”) in the building located
at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (the “Building”). The Original Lease
incorporates that certain First Addendum to Lease, dated as of the date of the Original Lease
(“First Addendum”).
B. Landlord and Tenant entered into that certain Second Addendum to Lease dated August 16,
2001 (the “Second Addendum”) for the purpose of substituting the provisions set forth
therein with respect to storage space for the provisions with respect to storage space set forth in
the First Addendum.
C. Landlord and Tenant entered into that certain Amendment to Lease dated November, 2003 (the
“First Amendment”) for the purpose of expanding the Original Premises to include Suite 2010
in the Building, stipulated to consist of 725 rentable square feet (“Suite 2010”), and for
the other purposes set forth therein. The Original Lease, the First Addendum, the Second Addendum
and the First Amendment are together referred to herein as the “Lease”. The Lease currently
expires on October 31, 2010. The Original Premises and Suite 2010 are together referred to herein
as the “Existing Premises”, and are stipulated to consist of 14,678 square feet of leasable
area.
D. Landlord and Tenant wish to enter into this Second Amendment the purpose of expanding the
Existing Premises, for the purpose of extending the Lease Term, and for the other purposes set
forth herein.
TERMS
NOW, THEREFORE, for Ten Dollars ($10.00) and for the covenants and conditions of this First
Amendment, the receipt and sufficiency of which are hereby conclusively acknowledged, Landlord and
Tenant agree as follows:
1. Recitals. The above recitals are true and correct and are agreed to by Landlord
and Tenant as if such recitals were fully set forth herein.
2. Terms. All undefined capitalized terms herein shall have the same meanings as
defined in the Lease.
3. Lease Term. The Lease Term is hereby extended until April 30, 2015. The period
between November 1, 2010 and April 30, 2015 is referred to herein as the “Extension Term”.
4. Existing Premises Extension Term Fixed Minimum Annual Rent. Tenant shall pay Fixed
Minimum Annual Rent for the Existing Premises, for the Extension Term, on or before the first
calendar day of each month, without notice or demand, in the amounts set forth in the following
schedule, plus sales tax thereon:
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| Period | Fixed Minimum Annual | Fixed Minimum Annual | Fixed Minimum Annual | |||
| Rent/S.F. | Rent | Rent/Month | ||||
11/1/2010-10/31/2011
|
$39.50 | $579,781.00 | $48,315.08 | |||
11/1/2011-10/31/2012
|
$40.00 | $587,120.00 | $48,926.67 | |||
11/1/2012-10/31/2013
|
$40.50 | $594,459.00 | $49,538.25 | |||
11/1/2013-10/31/2014
|
$41.00 | $601,798.00 | $50,149.83 | |||
11/1/2014-04/30/2015
|
$41.50 | $304,568.52 (6 months) | $50,761.42 |
5. Existing Premises Extension Term Proportionate Share. As of the first day of the
Extension Term, Tenant’s obligation to pay its Proportionate Share of Operating Expenses with
respect to the Existing Premises shall be amended to provide that Tenant shall pay its
Proportionate Share of Operating Expenses to the extent that Landlord’s actual cost of Operating
Expenses exceed Landlord’s cost thereof in the calendar year 2011 (the “Existing Premises Base
Year”). Landlord agrees that increases in the Controllable Portion of Operating Expenses shall
not exceed five percent (5%) from the Existing Premises Base Year to the following calendar year
between other calendar years in the Extension Term, applied on a non-cumulative basis. For purposes
hereof, the “Controllable Portion of Operating Expenses” shall not include real estate
taxes and other governmental charges, utilities, insurance, increases in the wages of employees
actually performing work or services at the Building to the extent that such increases are
contractually or by law tied to increases in the minimum wage, and commercially reasonable costs
associated with any increased security provided by Landlord based upon responses to changes in
external factors. In the event that Tenant exercises the Option to Renew set forth herein, the
foregoing limitation on increases in the Controllable Portion of Operating Expenses shall not be
applicable to the increase in Operating Expenses between the last year of the Extension Term and
the first year of any renewal term, but shall instead first be applicable to the increase in the
Controllable Portion of Operating Costs between the first and second calendar years within the
renewal term and between calendar years thereafter.
6. Condition of Existing Premises. Tenant accepts the Existing Premises in AS-IS
condition, except only, however, that Landlord shall reimburse Tenant in up to the amount of One
Hundred Thirty-Nine Thousand Five Hundred Thirty and 00/100 Dollars ($139,530.00) (“Existing
Premises Alterations Allowance”) for Alterations (as defined in Article IX of the Original
Lease) to the Original Premises, performed by Tenant in accordance with the requirements of the
Original Lease on or following January 1, 2010 (“Reimbursable Alterations”). Landlord shall
reimburse Tenant, up to the amount of the Existing Premises Alterations Allowance, within thirty
(30) days following Landlord’s receipt of Tenant’s submittal to Landlord of an invoice together
with paid invoices totaling the amount requested, together with final releases of lien and
contractor’s final payment affidavit in the form required under Florida Statute 713.06. In the
event that Tenant has not submitted invoices for Reimbursable Alterations up to the full amount of
the Existing Premises Reimbursement Allowance on or before October 31, 2011, that any such amount
shall be applied against Fixed Minimum Annual Rent due following the date of such request.
7. Expansion. The Existing Premises shall be expanded on December 1, 2004 to include
the following additional premises in the Building: (i) Suite 400 in the Building, depicted on
Exhibit “A-1” hereto and stipulated to consist of 16,744 square feet of leasable area (“Suite
400”), and (ii) Suite 500 in the Building, depicted on Exhibit “A-2” hereto and stipulated to
consist of 17,051 square feet of leasable area (“Suite 500”).
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Xxxxx 000 xxx Xxxxx 000 are together referred to herein as the “Second Amendment Expansion
Space” and are together stipulated to consist of 33,795 square feet of leasable area.
8. Condition of Second Amendment Expansion Space. Tenant has inspected the Second
Amendment Expansion Space and accepts the Second Amendment Expansion Space in AS-IS condition.
Landlord agrees that it shall not demolish or otherwise remove the tenant improvements existing in
the Second Amendment Expansion Space as of the date hereof. In the event that Tenant wishes to
construct additional improvements in the Second Amendment Expansion Space or modify the
improvements previously constructed therein, Tenant shall follow the requirements set forth in
Article IX of the Original Lease as affected by Paragraph I of the First Addendum. With respect to
the two (2) twenty (20) ton and one (1) ten (10) ton Liebert air conditioning units installed in
the Second Amendment Expansion Space and/or any replacement or new air conditioning units installed
to serve solely the Existing Premises or the Second Amendment Expansion Space, (i) Tenant shall,
within thirty (30) days following Landlord’s written request, be required to install separate
electrical submeters and pay the actual cost of electrical service as measured by such submeter or
meter to Landlord, and any other associated fees, taxes and charges imposed by the utility
supplier, as additional rent, but Landlord shall not impose its own fees or charges for such use;
(ii) Tenant shall cause such units to be duly maintained under the terms of a service agreement
with a duly licensed HVAC contractor; in the event that Tenant fails to provide evidence of such
contract within ten (10) business days following Landlord’s written request, then Landlord shall be
permitted to secure such maintenance contract, and Tenant shall reimburse Landlord, as additional
rent, for the commercially reasonable cost thereof. Tenant shall not be required to remove any such
units at the expiration or earlier termination of the Lease. In the event that any such unit has
reached the end of its useful life, however, Tenant shall either cease using such unit or, if it
desires to use such unit, be required to remove any such unit that has reached the end of its
useful life and replace such unit with a new one under plans and specifications reasonably approved
by Landlord.
9. Alterations. Article IX of the Original Lease is hereby modified to provide that
Tenant shall not be required, at the expiration or earlier termination of the Lease, to remove
Alterations to the Existing Premises or the Second Amendment Expansion Space. Landlord specifically
agrees that Tenant shall not be required to remove Alterations in connection with the Main Studio
Location, as hereafter defined, upon the expiration or earlier termination of the Lease. Tenant
agrees that, with respect to Alterations requiring a building permit to perform, it shall use an
architect and engineer approved by Landlord in writing. Landlord hereby approves Initial Engineers
as Tenant’s engineer with respect to such Alterations. Further, Tenant agrees that its general
contractor for Alterations to the Building shall be subject to Landlord’s prior written consent.
Tenant acknowledges and agrees that the obligation to comply with all laws, regulations and
ordinances of all public authorities set forth in Article IX of the Original Lease requires that it
complies with the Americans with Disabilities Act, as amended from time to time, with respect to
all Alterations.
10. Second Amendment Expansion Space Term. Tenant’s lease of the Second Amendment
Expansion Space shall commence on December 1, 2004 and shall expire on April 30, 2015. The period
between December 1, 2004 and April 30, 2015 is referred to herein as the “Second Amendment
Expansion Space Term”. The Second Amendment Expansion Space Term is, however, subject to the
termination right set forth in Paragraph 14 hereof.
11. Second Amendment Expansion Space Fixed Minimum Annual Rent. Section 2.01 of the
Original Lease, as modified by Paragraph O of the First Addendum and Paragraph G of the First
Amendment, are hereby modified to provide that, in addition to the sums set forth therein, Tenant
shall pay Fixed Minimum Annual Rent for the Second Amendment Expansion Space, on or before the
first calendar day of each month, without notice or demand, in the amounts set forth in the
following schedule, plus sales tax thereon. As set forth in the following schedule, however,
Tenant’s obligation to pay Fixed Minimum Annual Rent for the
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Second Amendment Expansion Space shall be abated for the period from December 1, 2004 until
April 30, 2005.
| Period | Fixed Minimum Annual | Fixed Minimum Annual | Fixed Minimum Annual | |||||||||
| Rent/S.F. | Rent | Rent/Month | ||||||||||
12/1/04-4/30/05
|
N/A | N/A | Abated | |||||||||
5/1/05-4/30/06
|
$ | 29.00 | $ | 980,055.00 | $ | 81,671.25 | ||||||
5/1/05-4/30/07
|
$ | 29.50 | $ | 996,952.50 | $ | 83,079.38 | ||||||
5/1/05-4/30/08
|
$ | 30.00 | $ | 1,013,850.00 | $ | 84,487.50 | ||||||
5/1/05-4/30/09
|
$ | 30.50 | $ | 1,030,747.50 | $ | 85,895.63 | ||||||
5/1/05-4/30/10
|
$ | 31.00 | $ | 1,047,645.00 | $ | 87,303.75 | ||||||
5/1/05-4/30/11
|
$ | 31.50 | $ | 1,064,542.50 | $ | 88,711.88 | ||||||
5/1/05-4/30/12
|
$ | 32.00 | $ | 1,081,440.00 | $ | 90,120.00 | ||||||
5/1/05-4/30/13
|
$ | 32.50 | $ | 1,098,337.50 | $ | 91,528.13 | ||||||
5/1/05-4/30/14
|
$ | 33.00 | $ | 1,115,235.00 | $ | 92,936.25 | ||||||
5/1/05-4/30/15
|
$ | 33.50 | $ | 1,132,132.50 | $ | 94,344.38 | ||||||
12. Second Amendment Expansion Space Proportionate Share. Commencing on January 1,
2007 and for the remainder of the Second Amendment Expansion Space Term, the Lease shall be revised
to provide that, in addition to paying its Proportionate Share for the Existing Premises, Tenant
shall pay its Proportionate Share for the Second Amendment Expansion Space to the extent that
Landlord’s actual cost of Operating Expenses exceed Landlord’s cost thereof in the calendar year
2006. Tenant’s Proportionate Share for the Second Amendment Expansion Space is 11.49489% of the
Building. The foregoing Proportionate Share has been calculated by dividing the 33,795 square feet
of leasable area within the Second Amendment Expansion Space by the 294,000 square feet within the
Building as set forth in Section 2.02(a)(1) of the Original Lease.
13. Signage. Paragraph P of the First Addendum is hereby deleted, and the following
replacement Section P shall be substituted in its place. It is the intention of this substitution
that the signage rights granted under Section P be confirmed, ratified and expanded as set forth in
the following Substitute Paragraph P. This substituted language shall in no respect be interpreted
to require Tenant to remove any Building signage installed as of the date hereof under the
authority of Paragraph P of the First Addendum, and Landlord hereby confirms its approval of all
signage installed as of the date hereof.
P. Provided that Tenant is not in default of any term, condition or covenant of the
Lease beyond all applicable notice and grace periods, Tenant shall have the right,
at its sole cost and expense, to install the following signs. The permission granted
herein is subject to Tenant having obtained and provided to Landlord all required
building permits and municipal approvals, and to maintaining such permits and
approvals and permits in full force and effect throughout the Lease Term. Tenant
shall be required, throughout the Lease Term, to maintain such signage in first
class condition. In addition, if Landlord gives Tenant written notice of such
request, Tenant shall remove all such signage at the expiration or earlier
termination of the Lease and restore the Building from the effects of such removal:
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(1) Tenant shall be permitted to install a sign panel bearing its name in the top
position of the Building’s multi-tenant monument sign; the design and materials for
such panel shall be subject to Landlord’s approval, which shall not be unreasonably
withheld or delayed.
(2) Tenant shall be permitted to install rooftop signage on the south and north
faces of the Building. Prior to installation, Tenant shall submit its proposed
signage plans (including design, content, location and electrical plans) for
Landlord’s approval, which approval Landlord may withhold in its sole and absolute
discretion.
(3) Tenant shall be permitted to install one (1) sign above the valet entrance
portico to the Building.
(4) Landlord shall install, at its cost and expense, Building standard signage
outside of the entrance to Xxxxx 000 xxx Xxxxx 000, and shall reflect Tenant’s
occupancy of Suite 400 and Suite 500 in the Building’s lobby directory.
13. Right of First Offer. Tenant shall have the Right of First Offer set forth in
Exhibit “B” hereof.
14. Main Studio Location. Provided that all required municipal and regulatory
approvals for such use are first obtained, Landlord hereby consents to Tenant’s use of a portion of
the Premises consisting of up to twenty percent (20%) of the Second Amendment Expansion Space for
Tenant’s radio station studios, which shall operate in accordance with all required codes, laws,
ordinances and applicable regulations (the “Main Studio Location”). Tenant shall not use
the Building as a transmission station for the Main Studio Location, as its transmission station is
not appurtenant to the Building. Landlord will reasonably consent to Alterations to the Premises
required to conduct the Main Studio Location. Landlord and Tenant have previously agreed upon
counsel and a Miami zoning consultant (together the “Radio Programming Consultants”) to
provide services in connection with applying and obtaining permits required under the zoning and
building code of the City of Miami, if any, that may be applicable to the Building and Premises in
order to operate the Main Studio Location (“Required Municipal Approvals”).Any such
application and parts thereof shall be subject to the prior written approval of Landlord and
Tenant, whose approval shall not be unreasonably withheld. Landlord and Tenant each agree to sign
any reasonable and necessary owner consent forms of the City of Miami that are required in order to
apply for and obtain the Required Municipal Approvals. Landlord shall pay for all commercially
reasonable fees and commercially reasonable costs associated with the application fees for the
Required Municipal Approvals and the Radio Programming Consultants to prepare any application for
and to obtain the Required Municipal Approvals provided, however, that Tenant shall reimburse
Landlord, as additional rent, for fifty percent (50%) of the fees and expenses of the Radio
Programming Consultants and associated permitting, application, and other related third party fees
and expenses and costs within thirty (30) days following Landlord’s submittal of its invoices for
such third-party fees and costs to Tenant. Landlord agrees, within thirty (30) days following the
date hereof, to give Tenant written notice of its determination of the Required Municipal Approvals
necessary for the Main Studio Location, and, thereafter, to promptly respond to Tenant’s inquiries
with respect to the status of the Required Municipal Approvals. Landlord’s obligation to seek the
Required Municipal Approvals shall include, without limitation, the obligation to seek and
diligently pursue any applicable zoning and building code approvals that may be required to conduct
the business of the Main Studio Location. In the event that Landlord receives a final,
non-appealable denial of the Required Municipal Approvals (the “Denial”) within a period of
six (6) months has elapsed from the date this Second Amendment has been executed by Landlord and
Tenant (the “Application Period”) it shall promptly provide Tenant with notice thereof.
Tenant may, not later than thirty (30) days following its receipt of the Denial or the end of the
Application Period, whichever is earlier (the “Termination Deadline”), elect to terminate
the modifications to the Lease accomplished by this Second Amendment by tendering written notice
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of such election to Landlord (“Termination Notice”), together with a termination fee
(the “Termination Fee”) which shall be the amount of the Fixed Minimum Annual Rent for the
Temporary Premises for the period of Tenant’s occupancy thereof (and double such rate for any
holdover period under Paragraph 18 hereof) at Landlord’s then current market rate for premises in
the Building such as the Temporary Premises (“Temporary Premises Termination Rent”). In
computing the Termination Fee, however, Tenant shall receive a credit against the Temporary
Premises Termination Rent in the amount of any Fixed Minimum Annual Rent that had been paid by
Tenant for the Second Amendment Expansion Space prior to Tenant’s delivery to Landlord of the
Termination Notice.
15. Option to Renew. The Lease as amended herein is scheduled to expire on April 30,
2015. Landlord and Tenant agree that the Option to Renew set forth in Paragraph N. of the First
Addendum shall be applicable to Tenant’s option to renew following the foregoing expiration date
provide, however, that Paragraph N. of the First Addendum is hereby modified as follows: (i) such
option shall be for one (1) additional five (5) year period; and (ii) Tenant’s written notice to
Landlord of its irrevocable election to exercise the option to renew shall be given to Landlord not
later than 5:00 p.m. on July 31, 2014. The Fixed Minimum Rent for Tenant’s then existing Premises
under the Lease as amended herein, including the Existing Premises, the Second Amendment Expansion
Space, and any subsequent premises leased by Tenant (whether under the Right of First Offer or
otherwise) shall be established under the procedures set forth in Paragraph N. of the First
Addendum.
16. Parking. For a period expiring on March 31, 2006, Tenant shall be given the
opportunity to obtain from Landlord and/or the Garage operator the right to park a maximum of one
hundred fifteen (115) unassigned parking spaces in the Garage under the terms set forth in Article
XIV of the Original Lease, and, in addition, the right to ten (10) assigned parking spaces in the
Garage under the terms set forth in Article XIV of the Original Lease. In addition, Tenant shall be
permitted to use twenty-five (25) additional unassigned parking spaces, under the terms set forth
in Article XIV of the Original Lease, but such additional parking spaces shall be on a
month-to-month basis, and Landlord reserves the right to cancel Tenant’s right to use any or all
such additional parking spaces on thirty (30) days prior written notice to Tenant. Further, Tenant
shall be permitted to park up to three (3) passenger vans, at no additional cost to Tenant, in a
location appurtenant to the Building determined from time to time by Landlord. Landlord
acknowledges that such passenger vans will not be accommodated by a standard size passenger vehicle
parking space.
17. Roof Rights. Tenant, at its sole cost and expense, shall have the non-exclusive
right (it being understood that Landlord may grant, extend or renew similar rights to others) to
install, maintain, and from time to time replace satellite dish(s) and or antennae (the
“Rooftop Equipment”) on the roof of the Building, provided that prior to commencing any
installation or maintenance, Tenant shall (i) obtain Landlord’s prior approval of the proposed
size, weight and location of the Rooftop Equipment and method for fastening the Rooftop Equipment
to the roof, which approval Landlord shall not unreasonably withhold provided that the Rooftop
Equipment will not damage the Building or the Building’s roof and is not of such size or weight
that it can be reasonably deemed unsuitable for the Building’s roof, (ii) such installation and/or
replacement shall comply strictly with all Laws and the conditions of any bond or warranty
maintained by Landlord on the roof, (iii) use the Rooftop Equipment solely for its internal use,
(iv) not grant any right to use of the Rooftop Equipment to any other party, and (v) obtain, at
Tenant’s sole cost and expense, any necessary federal, state, and municipal permits, licenses and
approvals, and deliver copies thereof to Landlord. Landlord may supervise or perform any roof
penetration related to the installation of Rooftop Equipment and Landlord may charge the
commercially reasonable cost thereof to Tenant. Tenant agrees that all installation, construction
and maintenance shall be performed in a neat, responsible, and workmanlike manner, using generally
acceptable construction standards, consistent with such reasonable requirements as shall be imposed
by Landlord. Tenant further agrees to label each cable or wire placed by Tenant in the
telecommunications pathways of the
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Building, with identification information as required by Landlord. Tenant shall repair any
damage to the Building caused by Tenant’s installation, maintenance, replacement, use or removal of
the Rooftop Equipment. The Rooftop Equipment shall remain the property of Tenant, and Tenant may
remove the Rooftop Equipment at its cost at any time during the Term. Tenant shall remove the
Rooftop Equipment at Tenant’s cost and expense upon the expiration or termination of this Lease.
Tenant agrees that the Rooftop Equipment, and any wires, cables or connections relating thereto,
and the installation, maintenance and operation thereof shall in no way interfere with the use and
enjoyment of the Building, or the operation of communications (including, without limitation, other
satellite dishes) or computer devices by Landlord or by other tenants or occupants of the Project
installed under written agreement with Landlord prior to the date hereof. If such interference
shall occur, Landlord shall give Tenant written notice thereof and Tenant shall commence to correct
the same within twenty-four (24) hours of receipt of such notice and diligently and continuously
pursue such correction to completion with all possible dispatch. Landlord makes no warranty or
representation that the Building or any portions thereof are suitable for the use of Rooftop
Equipment, it being assumed that Tenant has satisfied itself thereof. Tenant shall protect,
defend, indemnify and hold harmless Landlord and Landlord’s Agents from and against claims,
damages, liabilities, costs and expenses of every kind and nature, including attorneys’ fees,
incurred by or asserted against Landlord arising out of Tenant’s installation, maintenance,
replacement, use or removal of the Rooftop Equipment. Landlord hereby ratifies and confirms its
consent to the Rooftop Equipment installed by Tenant prior to the date hereof. Landlord agrees that
it shall, with respect to any rooftop equipment installed subsequent to the date hereof, include
the covenant against interference against Tenant’s Rooftop Equipment set forth in this Paragraph
13.
18. Temporary Premises. Tenant shall occupy the following “Temporary Premises” under
the terms and conditions set forth in this Paragraph 14. For this purpose, “Temporary
Premises” shall mean the following premises: Suite 625 in the Building, stipulated to contain
3,057 square feet of leasable area (“Suite 625”); Xxxxx 000 in the Building, stipulated to
consist of 1,655 square feet of leasable area (“Suite 865”); and Suite 2000 in the
Building, stipulated to contain 9,664 leasable square feet (“Suite 2000”). Tenant has
inspected the Temporary Premises and accepts the Temporary Premises in AS-IS condition. Tenant
shall be permitted to occupy the Temporary Premises under all of the terms and conditions of the
Lease as amended herein. In the event that Tenant does not timely exercise the termination right
set forth in Paragraph 14 hereof, Tenant shall not be required to pay Fixed Annual Rent or its
Proportionate Share for the Temporary Premises unless Tenant fails to vacate the Temporary Premises
on or before the “Temporary Premises Expiration Date”, namely nine (9) months following
receipt of the Required Municipal Approvals or, if Tenant has delivered the Termination Notice to
Landlord, then ten (10) business days following Tenant’s delivery to Landlord of the Termination
Notice. In the event that Landlord enters into a lease with a third party tenant for Xxxxx 000 xx
Xxxxx 000, then Landlord may relocate Tenant’s temporary use for such portion (s) of the Temporary
Premises to other comparable vacant premises in the Building. Landlord shall not, however, be
permitted to relocate Tenant’s use of Suite 2000 as a portion of the Temporary Premises. In the
event that Tenant requires additional temporary premises prior to Tenant’s occupancy of the Second
Amendment Expansion Space and has not tendered the Termination Notice, Landlord will reasonably
endeavor to accommodate such requirement.
19. Suite 2000 Condition. In anticipation of Landlord’s and Tenant’s entry into this
Second Amendment, Landlord has previously spent approximately $48,230.00 in recarpeting and
repainting Suite 2000 and in conforming Suite 2000 to the premises plan set forth as Exhibit “C”.
Tenant accepts Suite 2000 in AS-IS condition. For so long as Tenant occupies Suite 2000, it shall
have the right to use the furniture and furnishings listed in Exhibit “D” hereto (the “Suite
2000 Furnishings”), which Landlord makes available to Tenant whereis, as-is, and without any
warranty with respect to serviceability or fitness. Tenant bears all risks of use of the Suite 2000
Furnishings to the same extent that the Suite 2000 Furnishings were Tenant’s property. In the event
that Tenant assigns the Lease as amended herein or subleases Suite 2000, however, its right to use
the Suite 2000 Furnishings shall be deemed to have expired on the effective date of such assignment
or
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sublease, and Landlord shall be permitted to remove the Suite 2000 Furnishings from Suite
2000. On the Temporary Premises Expiration Date, or on the expiration or earlier termination of
Tenant’s lease of the Second Amendment Premises if Tenant exercises the option to include Suite
2000 part of the Second Amendment Premises, or on the date of any assignment of the Lease or
sublease of Suite 2000, Tenant shall return the Suite 2000 Furnishings to Landlord in their
condition as of the date hereof, reasonable wear and tear only excepted.
20. Suite 2000 Expansion. With respect to Suite 2000 in the Building, Tenant may, by
written notice to Landlord not later than the Temporary Premises Expiration Date, elect to make
Suite 2000 a part of its Premises under the Lease. In the event of such timely written notice to
Landlord, Tenant shall commence paying Fixed Minimum Annual Rent for Suite 2000 on the date
following the Temporary Premises Expiration Date at the rate per square foot (as adjusted from time
to time) applicable to the Existing Premises under the Lease , and Tenant’s Proportionate Share
and allocated parking spaces shall be proportionately adjusted to reflect the addition of Suite
2000 to the Second Amendment Expansion Space; in the event Tenant elects to include Suite 2000 in
the Second Amendment Expansion Space Landlord and Tenant shall, within thirty (30) days following
the Temporary Premises Expiration Date, enter into an amendment to the Lease confirming the matters
set forth in this paragraph and confirming the date that Tenant’s lease of Suite 2000 has
commenced.
21. Storage Space No. 12. Tenant’s lease of Storage Space No. 12 shall be extended
until April 30, 2015 under the terms and conditions set forth in the Original Lease.
22. Access to Premises. With respect to any portion of the Existing Premises or the
Second Amendment Expansion Space that comprises a full floor in the Building Landlord shall, at its
sole cost and expense, install card readers in the Building’s elevators that limit access to such
full floors so that employees of the other tenants in the Building shall not have access to such
full floors.
23. Holdover. Section 8.09 of the Original Lease is hereby modified to provide that,
in the event that Tenant holds over following the expiration or earlier termination of the Lease,
it shall, for the first month of any such holdover period, pay Fixed Minimum Annual Rent and its
Proportionate Share of Operating Expenses in an amount equal to one hundred twenty-five percent
(125%) of the amounts due for the last month prior to the expiration date, for the second month one
hundred fifty percent (150%) of the amounts due for the last month prior to the expiration date
and, thereafter, holdover rent equal to two hundred percent (200%) of the last month prior to the
expiration date.
24. Subordination and Attornment. Landlord shall use its best efforts, following the
date hereof, to obtain in favor of Tenant a subordination, nondisturbance and attornment agreement
in favor of Tenant on the standard form of the mortgagee of the Building.
25. Assignment and Subletting. Section 15.04(d) of the Original Lease is hereby
deleted, and the following replacement Section 15.04(d) shall be substituted in its place:
15.04(d) Notwithstanding anything to the contrary contained herein, Tenant,
without Landlord’s prior consent, but upon notice to Landlord including
evidence that such transferee has obtained the insurance required of Tenant
herein and that such entity qualifies under the terms of this Section
15.04(d), may (i) assign this Lease to, or sublet all or part of the
Premises to, or permit a portion of the Premises to be occupied by, any
corporation or other business entity which controls, is controlled by, or is
under common control with Tenant (herein referred to as a “Related
Entity”). Any assignment, subletting or occupancy by a Related Entity
of Tenant shall not be deemed to relieve, release, impair or discharge any
of Tenant’s obligations hereunder.
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For the purposes hereof, “control” shall be deemed to mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such corporation or other business entity,
through the ownership of voting securities; and (ii) assign this Lease and
the leasehold estate hereby created to a Successor Entity of Tenant (as
hereinafter defined). A “Successor Entity,” as used herein shall
mean (x) a corporation or other business entity into which or with which
Tenant, its successors or assigns, is merged or consolidated, in accordance
with applicable statutory provisions for the merger or consolidation of
corporations, provided that by operation of law or by effective provisions
contained in the instruments of merger or consolidation, the liabilities of
the corporations or other business entities participating in such merger or
consolidation are assumed by the corporation or other business entity
surviving such merger or consolidation, or (y) a corporation or other
business entity acquiring all or substantially all of the assets or
outstanding shares of stock of Tenant, its corporate successors or assigns,
including the leasehold estate created by this Lease, and assuming the
obligations of Tenant under this Lease, or (z) any corporate successor or
other business entity successor to a successor entity becoming such by
either of the methods described in subdivisions (x) and (y) above; provided
that (1) such merger or consolidation, or such acquisition and assumption,
as the case may be, is not principally for the purpose of transferring the
leasehold estate created hereby, and (2) immediately after giving effect to
any such merger or consolidation, or such acquisition and assumption, as the
case may be, the successor corporation surviving such merger or created by
such consolidation or acquiring such assets and assuming such liabilities,
as the case may be, shall have a net worth, as determined in accordance with
generally accepted accounting principles consistently applied, equal to or
greater than the net worth of Tenant as of the date of this Second
Amendment, as determined by Tenant’s audited financial statements for the
year ended December 31, 2004. The transfer of the outstanding capital stock
of any corporate tenant (including but not limited to Tenant) shall not be
deemed an assignment of this Lease if such transfer shall be affected by the
sale of stock through the “over-the-counter-market” or through any
recognized domestic or foreign stock exchange.
26. Security Deposit. Section 15.21 of the Original Lease is hereby modified to
provide that Tenant shall deposit upon its execution hereof, a cash security deposit in the amount
of $174,776.48.
27. Brokers. Landlord and Tenant each hereby warrants that they have had no dealings
with any real estate broker or agent in connection with the negotiation of this Second Amendment
other than CB Xxxxxxx Xxxxx, Inc., which has represented Landlord (“Landlord’s Broker”),
and MK Real Estate Group, which has represented Tenant (“Tenant’s Broker”). Tenant shall be
responsible for the compensation of Tenant’s Broker. Landlord and Tenant further warrant that they
know of no other real estate broker or agent, other than that named above, who is entitled to a
real estate commission in connection with this Second Amendment, and Tenant agrees to indemnify
Landlord against any claims for commission and expenses created by such claim by any other real
estate broker or agent with whom the Tenant may have dealt or communicated.
28. Effect of Delivery. Landlord has delivered a copy of this Second Amendment to
Tenant for Tenant’s review only and the delivery hereof does not constitute an offer to Tenant or
an option to lease. This Second Amendment shall not be effective until a copy executed by Landlord
and Tenant, is returned to Tenant.
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29. Ratification of Lease. Unless expressly modified herein, all terms and conditions
of the Lease are hereby ratified and reaffirmed in their entirety.
30. Lease in Full Force and Effect. Tenant represents, warrants and acknowledges that
the Lease is unmodified, other than pursuant to the terms of this Second Amendment, and is in full
force and effect as modified herein; that all rent has been paid through the date hereof; that
Landlord is not in default in the performance of any covenant, agreement or condition contained in
the Lease, as modified; and that Tenant has no defense to the payment of any amounts due under the
Lease, as modified.
31. Confidentiality. Landlord and Tenant will maintain the confidentiality of this
Second Amendment and will not divulge the economic or other terms of this Second Amendment to any
persons, other than their officers, directors, partners or shareholders; attorneys, accountants and
other professional consultants (all of which parties shall be bound by this confidentiality
obligation); any governmental agencies; pursuant to subpoena or other legal process, or in
accordance with their legal or regulatory financial reporting requirements.
(Execution page follows)
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IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the day and year
first written above.
Signed, sealed and delivered
in the presence of:
in the presence of:
Tenant:
SPANISH BROADCASTING SYSTEM, INC., a Florida corporation
| /s/ Xxxxxxx Xxxxxx | ||
Print Name:
|
Xxxxxxx Xxxxxx | |
| /s/ Xxxxx Xxxxxxxx | ||
Print Name:
|
Xxxxx Xxxxxxxx | |
By:
|
/s/ Xxxxxx X. Xxxxxx | |
Name:
|
Xxxxxx X. Xxxxxx | |
Title:
|
CFO | |
Landlord:
IRRADIO HOLDINGS, LTD., a Florida limited partnership
By: IRRADIO INVESTMENTS, INC., its sole general partner
| /s/ Xxxx X. Xxxxxx | ||
Print Name:
|
Xxxx X. Xxxxxx | |
| /s/ Xxxxx Xxxxxxxx | ||
Print Name:
|
Xxxxx Xxxxxxxx | |
By:
|
/s/ Xxxx Xxxxxxx, Xx. | |
Name:
|
Xxxx Xxxxxxx, Xx. | |
Title:
|
President | |
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