1
EXHIBIT 10.4
REAL PROPERTY LEASE
THIS REAL PROPERTY LEASE ("Lease") is made and entered into as of the last date
of execution by the parties hereto, by and between ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, husband and wife, as to an undivided one half interest and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, a single person, as to an undivided one quarter interest and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, a single person, as to an undivided one quarter interest, d/b/a GSB
Partnership, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord"), and LEHIGH ACRES FIRST NATIONAL BANK, of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the real property and all improvements thereupon, including but
not limited to all buildings, fixtures, equipment, furniture and all other
property of every kind and character owned by Landlord and located on, attached
to, or used in connection therewith ("Premises"), situated in Lehigh Acres,
Florida, and commonly referred to as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, and as more particularly described on Exhibit "A" attached hereto
and made a part hereof.
2. TRIPLE NET LEASE. This is a triple net Lease. Tenant, in addition to
the payment of "Rent" (as hereinafter defined) shall also pay and be responsible
for all taxes, insurance, repairs and maintenance relating to the Premises.
3. TERM, EFFECTIVE DATE, RENT COMMENCEMENT DATE.
a. Term. The term of this Lease ("Term") shall consist of the "Primary
Term" and may include one or more "Option Terms."
b. Primary Term. The primary term of this Lease ("Primary Term") shall
be ten (10) years from the "Rent Commencement Date" (as hereinafter defined).
The Primary Term shall commence on the Rent Commencement Date and shall end at
12:01 A.M. on the date which is ten (10) years after the Rent Commencement Date.
C. Option Terms. The Tenant shall have two (2) rights to extend the
Term of this Lease for two (2) separate five (5) year terms ("Option Term(s)").
Each Option Term must be exercised by the Tenant sending written notice of the
exercise of this option to the Landlord, not less than ninety (90) days prior to
the expiration of the preceding Term. These rights and options are wholly
conditioned and contingent upon (i) the Tenant not being in default beyond the
applicable cure periods under this Lease upon the exercise of an option, and
(ii) in addition to the condition above, the second Option Term is conditioned
and contingent upon the exercise of the preceding Option Term.
d. Effective Date. The term "Effective Date" shall mean the latest date
of execution of this Lease by the parties hereto.
Real Property Lease 05/26/99 Page 1 of 15
2
e. Lease Year. The term "Lease Year" shall mean any period of twelve
(12) calendar months commencing on the Rent Commencement Date or an anniversary
thereof and ending on the last day of the twelfth (12th) month thereafter.
f. Rent Commencement Date. The term "Rent Commencement Date" shall mean
June 1, 2005.
4. RENT
a. Triple Net Expenses. From and after the Rent Commencement Date,
triple net expenses will be payable by Tenant, including but not limited to, all
ad valorem taxes, all tangible property taxes and any other taxes relating to
the premises, assessments, all insurance relating to the premises as required
herein and all repairs and maintenance to the premises.
b. Primary Term Rent. During the Primary Term of this Lease and
commencing on the Rent Commencement Date, Tenant shall pay to Landlord as Rent
("Rent") for the Premises, plus triple net expenses, through and including the
last day of the sixtieth (60th) month after the Rent Commencement Date, the net
sum of SEVEN THOUSAND NINE HUNDRED SEVENTY SEVEN DOLLARS ($7,977.00) per month
plus applicable sales tax. Tenant shall pay to Landlord as Rent for the
Premises, plus triple net expenses, from the first day of the sixty-first (61st)
month through and including the last day of the one-hundred-twentieth (120th)
month after the Rent Commencement Date, the net sum of EIGHT THOUSAND SEVEN
HUNDRED SEVENTY FIVE DOLLARS ($8,775.00) per month, plus applicable sales tax.
If the Rent Commencement Date is a day other than the first day of a month, the
Rent for the first and last month of this period shall be prorated. In addition,
Tenant shall pay all triple net expenses, including but not limited to, all ad
valorem taxes, all tangible property taxes and any other taxes relating to the
premises, assessments, all insurance relating to the premises as required herein
and all repairs and maintenance to the premises.
C. Option Term Rent. During the Option Terms of this Lease, Tenant
shall pay to Landlord, as Rent for the Premises, the sums as set forth below:
(1) During the first Option Term, Tenant shall pay to Landlord, as
Rent, the net sum of NINE THOUSAND SIX HUNDRED FIFTY TWO
DOLLARS ($9,652.00) per month, plus applicable sales tax. In
addition, Tenant shall pay all triple net expenses, including
but not limited to, all ad valorem taxes, all tangible
property taxes and any other taxes relating to the premises,
assessments, all insurance relating to the premises as
required herein and all repairs and maintenance to the
premises.
(2) During the second Option Term, Tenant shall pay to Landlord,
as Rent, the net sum of TEN THOUSAND SIX HUNDRED EIGHTEEN
DOLLARS ($10,618.00) per month, plus applicable
Real Property Lease 05/26/99 Page 2 of 15
3
sales tax. In addition, Tenant shall pay all triple net
expenses, including but not limited to, all ad valorem taxes,
all tangible property taxes and any other taxes relating to
the premises, assessments, all insurance relating to the
premises as required herein and all repairs and maintenance to
the premises.
d. Payment Date. Rent is payable in advance on or before the first
(1st) day of each and every calendar month, at the address of Landlord set forth
herein, without demand.
e. Sums Expended. In the event Tenant, at any time, does not strictly
comply with all of the terms, covenants and conditions of this lease, Landlord
may, without obligation, but following written notice to Tenant, elect to
perform on behalf of Tenant. In such event, any amounts expended by Landlord
shall be immediately due and payable by Tenant to Landlord as additional Rent
hereunder, and, in the event of nonpayment thereof, Landlord shall be entitled
to exercise all of its remedies for Tenant's failure to pay Rent as set forth
herein.
5. DEPOSIT and PRE-PAID RENT. On or before June 1, 2005, Tenant shall pay
to Landlord the sum of $7,977.00 as a prepayment of the first (1st) month's Rent
due under the Primary Term, as set forth in Section 4(b)(1) above.
On or before October 31, 1999 the Tenant shall pay the sum of
$15,000.00 as a prepayment of rent securing the performance of its obligations
under this lease. Tenant agrees that there shall be no restriction on the use of
these funds by Landlord and there shall be no requirement that the pre-payment
of rent be held in a separate or interest bearing account.
This prepayment of rent shall be held as a credit for the Tenant in
either the settlement of disputes between the Landlord and Tenant or for the
payment toward the final two (2) months rent due under the terms of this Lease.
6. "AS IS" CONDITION OF THE PREMISES. Tenant agrees that it has examined
and knows the condition of the Premises and every part thereof and improvements
thereon, and that no statements or representations as to the condition or repair
of the Premises have been made by or for Landlord prior to or contemporaneously
with the execution of this lease. TENANT ACCEPTS THE PREMISES AND IMPROVEMENTS
THEREON IN AN "AS IS, WHERE IS CONDITION, SUBJECT TO All FAULT."
7. QUIET ENJOYMENT: INSPECTION RIGHTS OF LANDLORD. Landlord agrees that if
Tenant is not in default hereunder, Tenant's quiet and peaceable enjoyment of
the Premises during the Term of this lease shall not be disturbed by Landlord.
Notwithstanding the above-stated language, during the Term of this lease,
Landlord shall have the right to enter the Premises after prior, reasonable
notice to Tenant, for the purpose of inspection, or for any other lawful
purpose.
8. USE. Tenant shall use and occupy the Premises for the operation of a
state or national bank or any other lawful business, which other lawful business
shall be subject
Real Property Lease 05/26/99 Page 3 of 15
4
to Landlord's consent, which shall not be unreasonably withheld or delayed.
9. LAWS AND STANDARDS. Tenant shall promptly comply with all laws,
ordinances, rules and regulations of all Federal, state, county and municipal
governments now in force or that may be enacted hereafter, with all directions,
rules and regulations of the fire marshal, health officer, building inspector or
other proper officers of the governmental agencies having jurisdiction and with
such standards established from time to time by the National Board of Fire
Underwriters of the National Fire Protective Association, or any similar bodies
which are applicable to Tenant's use and occupancy of the Premises.
10. UTILITIES AND OTHER COSTS. From and after the Rent Commencement Date
Tenant shall pay for all water, fuel, light, power, heat, telephone, sewer and
rubbish services or other utility services supplied to the Premises, as well as
any other similar costs and expenses which are customarily paid by tenants under
triple net leases. Landlord shall not be liable to Tenant if said utilities or
services are interrupted or terminated because of necessary repairs,
installations, improvements or any cause beyond Landlord's control.
11. REPAIR AND MAINTENANCE. Landlord shall have no obligation, express or
implied, for repair and maintenance other than as specifically provided for
hereinabove in paragraph 6. Tenant shall keep and maintain the Premises in a
clean and sanitary order and in good condition and repair. Tenant shall make
such structural and nonstructural repairs and replacements to the Premises as
may from time to time be necessary or required for the proper use thereof.
12. ALTERATIONS, SIGNS.
a. Tenant shall have the right to make structural and non-structural
changes or alterations to the building or improvements on the Premises. Prior to
the commencement of any construction for alterations, Tenant shall furnish to
Landlord, for its approval, which shall not be unreasonably withheld or delayed,
plans and specifications for such alterations. In the event Landlord fails to
approve or disapprove, as the case may be, such plans within fifteen (15) days
from the date of submission to Landlord, then Landlord shall be deemed to have
approved the same.
Notwithstanding the aforesaid, Tenant shall be able to make minor,
non-structural changes or alterations to the building or improvements on the
Premises without Landlord's prior approval, so long as the cost of the changes
or improvements do not exceed $5,000.00.
b. Tenant shall have the right, at Tenant's sole cost, to erect,
install, maintain, and operate on the Premises such equipment, trade and
business fixtures, and signs as Tenant may deem advisable for the operation of
Tenant's business. Such items shall not be deemed to be part of the Premises,
but shall remain the property of Tenant. All such installations shall be
effected in compliance with applicable governmental laws, ordinances and
regulations. At any time during the term of this lease, Tenant shall have
Real Property Lease 05/26/99 Page 4 of 15
5
the right to remove its equipment, trade or business fixtures, signs and other
personal property from the Premises provided that (i) Tenant is not then in
default, and (ii) Tenant shall repair any damage to the improvements and
building of the Premises resulting from such removal.
13. LIABILITY INSURANCE.
a. From and after the Rent Commencement Date, and continuing throughout
the Term, Tenant shall procure, maintain and keep in force, comprehensive
general liability insurance for claims for bodily injury, death or property
damage, occurring in or about the Premises, with a limit of two million
($2,000,000.00) each occurrence for bodily injury or death to any one person, or
property damage with a general policy aggregate of $2,000,000.00. Landlord shall
be named as an additional insured. Tenant shall provide certificates of such
insurance to Landlord on or prior to the Rent Commencement Date.
b. If Tenant shall not provide evidence of insurance, Landlord may, at
its option, cause such insurance to be issued, and Tenant shall pay the premiums
for such insurance, which shall be deemed additional Rent, promptly upon demand
by Landlord.
14. FIRE/EXTENDED COVERAGE INSURANCE.
a. From and after the Rent Commencement Date, Tenant shall procure at
its expense, a standard form policy or policies of insurance providing coverage
against loss by fire, extended coverage, vandalism and malicious mischief
insurance, including wind damage and hurricane coverage if available, on the
building and other improvements constructed upon the Premises in an amount equal
to one hundred percent (100%) of the full replacement value of the building
(exclusive of foundations) and improvements. Landlord shall be named as an
additional insured. Tenant shall provide certificates of such insurance to
Landlord on or prior to the Rent Commencement Date.
b. If Tenant shall not provide evidence of insurance, Landlord may, at
its option, cause such insurance to be issued, and Tenant shall pay the
premiums for such insurance, which shall be deemed additional Rent, promptly
upon demand by Landlord.
C. If the building or other improvements shall be damaged or destroyed
prior to or during the Term by fire or other casualty, either Landlord or Tenant
shall have the right, but not the obligation, to elect to cancel or terminate
this lease. Said right shall be exercised in writing and delivered to other
party within sixty (60) days after the date of such occurrence as set forth in
this Section. Upon such termination, Landlord shall be entitled to all insurance
proceeds covering the Premises (but not covering Tenant's equipment, trade or
business fixtures or personal property, furnishings or furniture) resulting from
such damage or destruction.
d. If the building or other improvements shall be damaged or destroyed
during the Term by fire or other casualty, and neither Landlord nor Tenant
elects to
Real Property Lease 05/26/99 Page 5 of 15
6
terminate the lease, as permitted above, then promptly after adjustment of the
insurance claim and the agreement of Landlord to make the proceeds available to
Tenant to restore the improvements, Tenant, using any and all available
insurance proceeds, shall repair and restore the building and improvements to
approximately the same condition as existed immediately prior to the date of
such damage or destruction. During the time of such repair and restoration, if
Tenant is unable to operate its business, there shall be an abatement of all
rental obligations hereunder.
e. The Tenant acknowledges that the insurance provided above insures
only the building and improvements and not its contents and Tenant will procure
renter's or other coverage as it deems necessary.
15. MECHANIC'S LIENS. Tenant agrees and covenants that it will not allow
any mechanic's liens, or other liens for any labor performed or materials
furnished which may cloud or impair title to the Premises, and that if any such
liens shall arise, within twenty (20) days after request from Landlord, Tenant
shall either discharge and cancel the lien of record or post a bond (in
connection with which Tenant may contest any claims of any persons who have
provided or alleged to have provided, work to the Premises) in favor of Tenant.
16. INDEMNITY. Except as set forth in Section 18 below, Landlord shall not
be liable for any damage or liability of any kind, for any injury or death of
persons, or damage to property of Tenant or any other person occurring from and
after the date of execution of this lease, from any cause whatsoever, by reason
of the use or occupancy of the Premises by Tenant or any person thereon or
holding under Tenant, unless such damage is caused by the negligent or willful
act or omission of Landlord, its employees or agents. Tenant shall indemnify and
save Landlord harmless from all liability whatsoever, on account of any such
real or claimed damage or injury and from all liens, claims and demands arising
out of the use or occupancy of the Premises and its facilities, or any repairs,
alterations or improvements which Tenant may make to the Premises, unless such
liability is caused by the negligent or wilful act or omission of Landlord, its
agents or employees.
17. WAIVER OF SUBROGATION. The parties release each other, and their
respective authorized representatives, from any claims for damage to any person
or property of either Landlord or Tenant in or on the Premises that are caused
by or result from risks insured against under any insurance policies carried by
the parties and in force at the time of any such damage. The parties further
agree neither party shall be liable to the other for any damage caused by fire
or any of the risks insured against under any insurance policy required by this
lease, and each party shall cause each insurance policy obtained by it to
provide that the insurance company waives all right of recovery by way of
subrogation against either party in connection with any covered damage.
18. PROPERTY TAXES.
a. Taxes. From and after the Rent Commencement Date, Tenant, in
Real Property Lease 05/26/99 Page 6 of 15
7
accordance with Section 19(d) below, shall pay all taxes, assessments, levies,
fees, water and sewer charges, sales and use taxes and all other governmental
charges, general and special, ordinary and extraordinary, together with any
interest and penalties thereon, which are, at any time, imposed or levied upon
or assessed against (i) the Premises, (ii) this lease; or (iii) any personal
property owned or leased by Tenant. Notwithstanding the foregoing, Tenant shall
not be required to pay any franchise, rent, corporate, estate, inheritance,
succession, transfer, income, profits or revenue taxes of Landlord, unless any
such tax is imposed or levied upon or assessed against Landlord in substitution
for or in place of any other tax, assessment, charge or levy referred to above.
b. Apportionment. All property taxes and assessments that shall become
due and payable during the first and last years of the Term of this lease, shall
be apportioned pro rata between Landlord and Tenant in accordance with the
respective number of months during which the Tenant occupies the Premises,
commencing with the Rent Commencement Date, and shall be based on the taxing
authority's year. For the first year of the Term of this lease, Tenant shall pay
Landlord its pro rata share of the taxes for the current year, within ten (10)
days of the presentation by Landlord to Tenant of the tax ▇▇▇▇ for the current
year.
C. Contesting Assessment. Tenant, at its expense, shall have the right
to contest the amount or validity of any tax or assessment imposed against the
Premises, but Landlord shall not be liable for any expenses, including
attorney's fees, in connection therewith. Landlord will cooperate with Tenant in
its contest of any tax or assessment imposed against the Premises.
d. Method of Payment. Tenant shall pay all taxes and assessments due at
least thirty (30) days prior to the date due and within fifteen (15) days of
payment provide written proof of payment to Landlord.
19. BANKRUPTCY OR INSOLVENCY.
a. In the event of the filing or commencement of any proceeding by or
against Tenant under the Bankruptcy Code, the duly appointed Trustee, subject to
Court approval, shall have the right to assume this lease if the Trustee shall
(i) cure any default or provide adequate assurance that the Trustee will
promptly cure such default; (ii) compensate or provide adequate assurance that
the Trustee will promptly compensate the Landlord for any actual loss resulting
from such default; and (iii) provide adequate assurance of future performance of
the covenants, agreements and obligations of Tenant under the terms of this
lease.
b. The failure by the Trustee to assume or reject this lease within
sixty (60) days after the order for relief (Chapter 7), or within sixty (60)
days of confirmation of a plan (Chapter 11), shall, at Landlord's option, be
deemed a rejection.
Real Property Lease 05/26/99 Page 7 of 15
8
20. DEFAULT.
a. The default on the part of Tenant shall exist under this
lease when:
(1) Tenant fails to pay any monetary sum due hereunder, including
without limitation, Rent or any other charges as and when due,
and such failure continues for ten (10) days after written
notice thereof by Landlord to Tenant;
(2) Tenant fails to observe or perform any other provision,
covenant or condition of this lease to be observed or
performed by Tenant, and such failure continues for thirty
(30) days after written notice thereof by Landlord to Tenant;
provided if such default cannot reasonably be cured within
thirty (30) days, then Tenant shall have additional time to
cure such default as is reasonable and necessary; provided
that Tenant diligently, continuously and in good faith
prosecutes the cure of such default;
(3) A general assignment by Tenant for the benefit of creditors
occurs or the filing by or against Tenant of any proceeding
under any insolvency or bankruptcy law occurs, or the
appointment of a trustee or receiver to take possession of all
or substantially all of Tenant's assets located upon the
Premises or of Tenant's interest in this lease, unless such
seizure is discharged within sixty (60) days thereof for the
purpose of effecting a moratorium upon or composition of its
debts occurs within sixty (60) days.
b. In the event of a default, Landlord may treat same as a
breach of this lease, and, in addition to any or all other rights or remedies of
Landlord, and by the law provided and without being considered an election of
remedies, Landlord shall have the option without further notice or demand: (i)
to declare the Term hereof ended and to reenter the Premises and take possession
thereof and remove all persons therefrom, and Tenant shall have no further claim
thereon or hereunder; or (ii) without declaring this lease terminated, to
reenter the Premises and occupy the whole or any part thereof for and on account
of Tenant and to collect any unpaid rentals and any other charges which have
become payable or which may thereafter become payable; or (iii) even though
Landlord may have reentered the Premises, to thereafter elect to terminate this
lease and all of the rights of Tenant in or to the Premises.
c. Landlord shall not be deemed to have terminated this Lease or
the liability of Tenant to pay any rental or other charges thereafter accruing,
or to have terminated Tenant's liability for damages under any of the provisions
hereof, by any such reentry or by any action in unlawful detainee, or otherwise,
to obtain possession of the Premises, unless Landlord shall have notified Tenant
in writing that Landlord has so elected to terminate this lease. The service by
Landlord of any notice pursuant to the unlawful detainer statutes of the state
where the Premises are situated and the surrender of possession pursuant to such
notice shall not (unless Landlord elects to the contrary at the time of or at
any time subsequent to the serving of such notices and such election is
Real Property Lease 5/26/99 Page 8 of 15
9
evidenced by a written notice to Tenant) be deemed to be a termination of this
lease. In the event of any entry or taking possession of the Premises as
aforesaid, Landlord shall have the right, but not the obligation, to remove
therefrom all or any part of the personal property belonging to Tenant and
located therein and may place the same in storage at a public warehouse at the
expense and risk of Tenant.
d. Should Landlord elect to terminate this lease, Landlord may recover
from Tenant as damages: (i) the worth at the time of award of judgment of the
unpaid rent which had been earned at the time of termination; plus (ii) the
worth at the time of award of judgment of the amount by which the unpaid rent
for the balance of the term of the lease exceeds the fair rental value of the
Premises; plus (iii) any reasonable costs or expenses incurred by Landlord in,
(a) retaking possession of the Premises, including reasonable attorney's fees
therefor, (b) leasing commissions, and (c) any other reasonable costs necessary
or appropriate to relet the Premises; plus (d) such other reasonable amounts in
addition to or in lieu of the foregoing as may be permitted from time to time by
the laws of the state where the Premises are situated.
e. Efforts by the Landlord to mitigate the damages caused by the
Tenant's breach of the lease do not waive the Landlord's right to recover
damages.
f. Even though Tenant has breached this lease and abandoned the
Premises, this lease shall remain in effect for so long as Landlord does not
terminate the lease, and the Landlord may enforce all its rights and remedies
under this lease, including the right to recover the Rent as it becomes due
under this lease. The following do not constitute a termination of Tenant's
right to possession: (i) acts of maintenance or preservation; (ii) efforts to
relet the Premises; or (iii) the appointment of a receiver on initiation by
Landlord to protect its interest under this lease. Should Landlord relet the
Premises on account of the Tenant, the Landlord shall not be obligated to
terminate this lease, and in addition to such other relief as may be allowed by
law, Landlord may recover from Tenant the past due Rent and unpaid Rent for the
balance of the Term of the lease, less the amount of rent collected under the
reletting of the Premises, plus (iii) any reasonable costs or expenses incurred
by Landlord in, (a) retaking possession of the Premises, including reasonable
attorneys fees therefor, (b) leasing commissions, and (c) any other reasonable
costs necessary or appropriate to relet the Premises. Landlord shall have no
obligation or duty to Tenant to relet the Premises.
g. The rights of Landlord are not exclusive and shall be cumulative to
all other rights or remedies now or hereafter given to Landlord by law or by the
terms; of this Lease. Nothing herein affects the right of Landlord to equitable
relief where such relief is appropriate. The bringing of an action as described
herein does not affect Landlord's right to bring a separate action for relief on
termination, or in equity but no relief shall be requested and no damages shall
be recovered in the subsequent action for any detriment for which a claim for
damages was made and determined on the merits in the previous action.
Real Property Lease 05/26/99 Page 9 of 15
10
21. CONDEMNATION.
a. If thirty percent (30%) or more of the rentable area of the Premises
including any dedicated parking areas or drive-thru banking lanes shall be
acquired or condemned by power of condemnation or eminent domain, or be sold in
lieu thereof, then Tenant, by written notice given within sixty (60) days after
notice of such taking or acquisition, may terminate this Lease effective on the
date that title vests in the condemning authority. In the event Tenant receives
any portion of the condemnation proceeds, Tenant shall first be entitled to
retain the amount of the proceeds equal to Tenant's compensation for reasonable
attorney's fees and relocation expenses associated with the condemnation event.
To the extent, but not exceeding the remaining condemnation proceeds received by
Tenant, Tenant shall pay to Landlord the amount representing the present value
of the remaining rent due under the Lease. Tenant, however, shall not reimburse
Landlord for the remaining payments under the Lease to the extent that Landlord
receives compensation from the condemning authority for the loss of its expected
income under the lease.
b. If all or any portion of the Premises shall be acquired by authority
of any governmental authority pursuant to the exercise of its power of eminent
domain or by deed in lieu thereof and the Lease is not terminated then,
commencing on the date of such acquisition, the Rent provided shall be reduced
in the same proportion that the fair rental value of the Premises immediately
after such acquisition and any restoration agreed to be performed by the parties
hereto bears to the fair rental value of the Premises immediately prior to such
acquisition. In addition, if Tenant shall restore the remaining portion of the
Premises to as close to its previously existing condition as possible, then
Tenant shall first be entitled to recover its expenses incurred in such
restoration out of any such award and the balance shall be allocated to
Landlord, as aforesaid. If the parties are unable to agree on such fair rental
values within ninety (90) days after the date of such acquisition, the same
shall be determined by appraisal. Until the new Rent shall have been determined,
Tenant shall continue to pay Rent at the rate in effect immediately prior to
such acquisition, and upon such determination, an appropriate adjustment shall
be made.
c. If the parties do not agree upon any fair rental value, then
Landlord shall within ten (10) days provide Tenant with the name of three (3)
appraisers. Tenant shall within ten (10) days select one of the named
appraisers, who shall determine the fair rental value. All appraisers appointed
shall be licensed by the State of Florida, shall be members of the Appraisal
Institute and shall be qualified by experience and ability to determine the
foregoing fair rental value, and the fees and other costs shall be shared
equally by both Landlord and Tenant.
22. ASSIGNMENT.
a. Tenant shall have the right to assign this Lease, or its rights
hereunder, or to sublet all or any part of the Premises to an entity owned or
controlled by Tenant without the prior written consent of the Landlord. In all
other cases, Tenant must obtain Landlord's prior written consent, which consent
shall not be unreasonably withheld or
Real Property Lease 05/26/99 Page 10 of 15
11
delayed. In the event of an assignment or sublease, Tenant shall remain
primarily liable for any and all obligations under this Lease. No assignment or
sublease shall alter, affect or modify any of the rights of Landlord under this
Lease. In the event of such assignment or sublet, and provided that the new use
is related to banking or any other financial service, Landlord agrees that such
use is permissible under the terms of this Lease.
b. Tenant may mortgage, pledge or otherwise encumber its interest in
this lease or in the Premises to any financial institution advancing
purchase-money financing for Tenant's operations on the Premises; provided,
however, that in the event of a foreclosure of the interest of such financial
institution, the Premises may be used only in the manner permitted by this
lease.
23. NOTICES. Any and all notices or demands by or from Landlord to Tenant,
or Tenant to Landlord shall be in writing. They shall be served either
personally, via messenger or overnight carrier, or by certified mail. If served
personally, service shall be conclusively deemed made at the time of service. If
served by certified mail, service shall be conclusively deemed made twenty-four
(24) hours after deposit thereof in the United States mail, postage prepaid.
Any notice or demand to Landlord may be given unto it at:
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any notice or demand to Tenant may be given unto it at:
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
First Union Plaza, Suite 1400
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Said addresses may be changed from time to time by notice given in accordance
with the provisions of this Section.
24. TERMINATION. On the last day of the Term of this Lease or sooner
termination as provided herein, Tenant shall peaceably and quietly leave the
Premises in good working order, condition and repair, damage by events or acts
beyond the reasonable control of Tenant and permitted alterations excepted. The
Premises shall be returned in a
Real Property Lease 05/26/99 Page 11 of 15
12
broom clean condition.
25. HOLDING OVER. Tenant shall not continue to conduct its business at the
Premises after the last day of the Term herein created. Any holding over shall
create no more than a month-to-month tenancy, subject to all of the terms and
conditions of this Lease provided herein.
26. HAZARDOUS SUBSTANCES.
a. Tenant shall not cause or permit to occur: (i) any violation of any
federal, state, or local law, ordinance, or regulation now or hereafter enacted,
related to environmental conditions on, under, or about the Premises; or (ii)
the use, generation, release, manufacture, refining, production, processing,
storage, or disposal of any hazardous substances on, under, or about the
Premises, other than used in Tenant's ordinary course of business.
b. Tenant shall comply with all laws regulating the use, generation,
storage, transportation, or disposal of hazardous substances.
c. If Tenant fails to fulfill any duty imposed under this provision,
then Landlord may take whatever actions are necessary to correct the situation,
and Tenant shall reimburse Landlord for all costs associated therewith
(including reasonable attorney's fees).
d. Tenant shall indemnify, defend, and hold harmless the Landlord from
all fines, suits, procedures, claims and actions of every kind, and all costs
associated therewith arising out of or in any way connected with any deposit,
spill, discharge, or other release of hazardous substances that occurs during
the Term of this Lease.
e. Landlord shall indemnify, defend and hold harmless the Tenant from
all fines, suits, procedures, claims and actions of every kind, and all costs
associated therewith arising out of or in any way connected with any deposit,
spill, discharge or other release of hazardous substances that occur before or
after the Term of this Lease.
27. LEASING COMMISSION. Landlord and Tenant each represent and warrant to
the other that there are no claims for broker's commissions or finder's fees in
connection with the execution and delivery of this Lease, and Landlord and
Tenant each agree to indemnify the other against and hold such party harmless
from all liabilities arising from a breach of the representation and warranty
made by such party herein, including, without limitation, reasonable attorney's
fees and related court costs.
28. MISCELLANEOUS PROVISIONS.
a. Nothing contained in this Lease shall be deemed or construed by the
parties hereto, or any third party, to create the relationship of principal and
agent, or of partnership or of joint venture, or of trustee and beneficiary, or
of any other association between the parties hereto, and neither the method of
payment of any monies hereunder,
Real Property Lease 05/26/99 Page 12 of 15
13
nor any other provisions in this Lease, nor any acts of the parties hereto,
shall be deemed to create any relationship set forth hereinabove.
b. No waiver of default by the party or parties hereunder shall be
implied from any omission by a party or parties to take action on account of
such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the express waiver,
and that only for the time and to the extent therein stated. One or more waivers
of any covenant, term or condition of this Lease by a party or parties shall not
be deemed to waive or render unnecessary the consent to or approval of said
party or parties of any subsequent or similar acts by a party or parties.
c. This Lease may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but such
counterparts together shall constitute but one Lease.
d. This lease shall be construed according to the laws of the State of
Florida.
e. Time is of the essence of this lease.
f. Should any portion of this lease be declared invalid and
unenforceable, then such portion shall be deemed to be severable from this lease
and shall not affect the remainder thereof.
g. It is expressly understood that this lease contains all terms,
covenants, conditions and agreements between the parties hereto relating to the
subject matter of this lease, and that no prior agreements or understandings,
either oral or written, pertaining to the same, shall be valid or of any force
or effect, and that the terms, covenants, conditions and provisions of this
lease cannot be altered, changed, modified or added to except in writing by all
the parties hereto.
h. Should any party or parties hereto institute any action or
proceeding in Court or by arbitration to enforce any provision or provisions
hereof, or for damages by reason of any default under this lease, or for a
declaration of such party's or parties' rights or obligations hereunder, or for
any other judicial remedies, the prevailing party or parties shall be entitled
to receive from the losing party or parties such amount as the Court may find to
be reasonable and actual attorney's fees and costs incurred for the services
rendered the party or parties prevailing in any such action or proceeding or on
appeal therefrom.
i. This lease shall be binding upon and inure to the benefit of the
personal and legal representatives, successors and assigns of the parties.
j. The time for the completion of any alterations, repairs or
improvements shall be deemed extended by time lost due to delays resulting from
acts of God, strikes, unavailability of materials, civil riots, floods, other
unusually inclement weather (but not including seasonally inclement weather),
national or labor restrictions by governmental
Real Property Lease 05/26/99 Page 13 of 15
14
authority, and any other cause not within the control of such party.
k. Landlord hereby permits Tenant to retain, during the Term of this
lease, all warranties and guarantees pertaining to improvements and equipment
erected or installed upon the Premises. In the event of termination of this
lease when any warranties or guarantees are still applicable, Tenant hereby
assigns to Landlord, effective as of the date of termination, all such
warranties and guarantees pertaining to the improvements (including, without
limitation, all heating and air conditioning equipment installed upon the
Premises, but not including Tenant's kitchen equipment, furniture, personal
property or inventory).
l. Tenant accepts this lease subject and subordinate to any mortgage,
deed of trust or other lien presently now existing upon the Premises and to any
renewals and extensions thereof. Landlord is hereby irrevocably vested with full
power and authority to subordinate this lease to any mortgage, deed of trust or
other lien hereafter placed upon the Premises, and Tenant agrees upon demand to
execute such further instruments subordinating the lease upon the express
condition that this lease shall be recognized by the mortgagee by the execution
of a non-disturbance agreement and that the rights of Tenant shall remain in
full force and effect during the term of this Lease so long as Tenant shall
continue to perform all of the covenants and conditions of this Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Signatures, Date and Witness for ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________________________________________________
Date May 26, 1999 Landlord
-----------------------------
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- --------------------------------
Witness ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Typed or Printed Name of Witness
(Two Required)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- --------------------------------
Witness ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Typed or Printed Name of Witness
(Two Required)
Real Property Lease 05/26/99 Page 14 of 15
15
Signature, Date and Witness for ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------------------------------------
Dated 6/7/99 Landlord
------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------ --------------------------
Witness ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Typed or Printed Name of Witness (Two Required)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Witness
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Typed or Printed Name of Witness (Two Required)
Signature, Date and Witness of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------------------------------------
Dated 6/7/99 Landlord
------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------ --------------------------
Witness ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Typed or Printed Name of Witness (Two Required)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Witness
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Typed or Printed Name of Witness (Two Required)
Signature, Date and Witness for First National Bank of Lehigh Acres
------------------------------------------------------------------------------
Tenant
First National Bank of
Dated 6/15/99 Lehigh Acres
------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------ --------------------------
Witness
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------ ---------------------------
Typed or Printed Name of Witness (Two Required) Typed or Printed Name of
Officer
Its: Chairperson
----------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Witness
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Typed or Printed Name of Witness (Two Required)
Real Property Lease 05/26/99 Page 15 of 15