Exhibit 10.2
Agreement to Lease Real Property
Trails Shopping Center
THIS LEASE, (the "Lease") made and entered into as of the 18th day of
October , 1996, by and between Sterling Tequesta/Trails Limited Partnership
("Landlord") and The Commercial Bancorp, Inc. ("Tenant").
WITNESSETH:
ARTICLE I
REFERENCE PROVISIONS, AND ENUMERATION OF EXHIBITS
Section 1.1 REFERENCE PROVISIONS. Where used in this Lease, the
designated terms hereinafter set forth shall have the meanings ascribed by the
provisions of this Section 1.1:
(a) "SHOPPING CENTER" - that certain real property generally known as
Trails Shopping Center (the "Shopping Center") more particularly described in
Exhibit "A" attached hereto and by this reference incorporated herein together
with all improvements now located or hereafter erected thereon, less any
deletions pursuant to this Lease, plus such additions as the Landlord may from
time to time designate as comprising part of the Shopping Center.
(b) "LEASED PREMISES" - that certain space located in a building
erected or to be erected on the Shopping Center containing approximately 3,347
square feet as shown Exhibit "B" attached hereto; Bay 38 and 41.
(c) "TENANT'S TRADE NAME" - The Commercial Bank.
(d) 'TERM" - the period of time commencing as of the date hereof and
ending, unless extended or sooner terminated as herein provided, at 12 o'clock
(midnight) on the fifth (5th) annual anniversary of the Rental Commencement Date
as herein below defined.
(e) "LEASE YEAR" - each period (during the Term) of twelve (12)
calendar months which begins on the Rental Commencement Date or on any annual
anniversary thereof, or such shorter period (if any) which begins as aforesaid
and ends on the date of the termination of this Lease.
(f) "MINIMUM RENT" - the Minimum Rent shall be $35,082.00 per year
payable monthly in advance in equal installments of $2,923.50 each beginning on
the "Rental Commence Date." The Minimum Rent for each Lease Year commencing with
the second Lease Year shall be four percent (4%) more than the Minimum Rental
for the preceding Lease Year.
(g) "PERCENTAGE RENT. - There shall be no Percentage Rent due under
this Lease. All references to Percentage Rent are hereby deleted.
(h) "TENANT'S SHARE OF OPERATING EXPENSES" - this is a fully net lease
and Tenant shall pay its pro rata share of Operating Expenses as set forth in
Section 2.6. Initially, Tenant shall pay $962.26 monthly toward Tenant's share
of Operating Expenses.
(i) ANCHOR TENANT(S) - Publix, Eckerds.
(j) "USE" - Tenant shall use the Leased Premises solely for the purpose
of a bank.
(k) "COMMON AREA" - all areas and facilities in the Shopping Center
designated for the general use, in common, of occupants of the Shopping Center,
including the Tenant hereunder, its officers, agents, employees and customers.
Common Areas shall include the parking areas, sidewalks, canopies, roadways,
loading platforms, washrooms, ramps and landscaped areas.
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(l) "INITIAL DEPOSIT" - in the amount of $8,885.76 shall be paid to
Landlord upon Tenant's execution of this Lease of which $5,000.00 is to be a
"SECURITY DEPOSIT" applied as provided in Section 11.3 and the balance of
$3,885.76 represents the first Full Month's Minimum Rent, including Tenant's
Share of Operating Expenses and 6% Florida sales tax.
(m) "CONSTRUCTION OBLIGATIONS" - as specified in Article III and
Exhibit "C" attached hereto.
(n) "ADDRESSES FOR NOTICE" -
TO LANDLORD: Sterling Tequesta/Trails
Limited Partnership
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(▇▇▇) ▇▇▇-▇▇▇▇
TO TENANT: The Commercial Bancorp, Inc.
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Telephone ▇▇▇-▇▇▇-▇▇▇▇
(o) "ADDRESS FOR PAYMENTS"- Unless otherwise directed by Landlord, all
payments hereunder or required by this Lease shall be made to:
Trails Shopping Center
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▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(p) "MONTHLY MERCHANTS ASSOCIATION DUES" of $0.00 per month.
(q) "BROKERS" - Sterling Realty Services, LC.
Section 1.2 GRANTING OF THE LEASED PREMISES. Landlord hereby leases to
Tenant and Tenant hereby rents from Landlord the Leased Premises. Provided
Tenant is not in default hereunder, Tenant shall be entitled to use the Common
Areas in common with the Landlord and other tenants of the Shopping Center
throughout the Term of this Lease. Landlord may reduce or change the number,
dimensions or location of the improvements comprising the Shopping Center or any
of them in any manner whatsoever as Landlord shall deem proper. It is expressly
understood and agreed that nothing herein contained shall be construed as a
grant or rental of or a conveyance of any rights in the roof or exterior of the
building or buildings of which the Leased Premises constitute a part; the air
space (occupied or not) above a horizontal elevation plane coterminous with the
bottom edge of the structural steel framework supporting the roof of the Leased
Premises: the Common Areas (except as herein before specifically provided to the
contrary); the air space (occupied or not) below a horizontal elevation plane
coterminous with the finished floor level of the Leased Premises; or of the land
upon which the Leased Premises are located.
Section 1.3 FLOOR AREA. The term "Floor Area" as used in this Lease
shall mean the actual number of square feet of floor space within the Leased
Premises and any area outside the Leased Premises which is exclusively
appropriated for use by Tenant; subject, however, to the limitations of Section
1.2 hereof. The Floor Area of the Leased Premises shall be finally determined by
Landlord on or before the "Rental Commencement Date" (as herein below defined),
and shall be calculated by measuring from the center line of interior or party
walls and from the exterior faces of exterior walls.
Section 1.4 ACCEPTANCE OF LEASED PREMISES. By opening for business,
Tenant shall be deemed to have accepted the Leased Premises, to have
acknowledged that the same are in condition called for hereunder and to have
agreed that as of that date all of the obligations imposed upon Landlord under
this Lease have been fully performed.
Section 1.5 QUIET ENJOYMENT. Tenant, upon paying the rents herein
reserved and performing and observing all other terms, covenants and conditions
of this Lease on Tenant's part to be performed and observed, shall peaceable and
quietly have, hold and enjoy the Leased Premises during the Term, subject
nevertheless to the terms of this Lease and to any mortgages, ground or
underlying leases, agreements and encumbrances to which this Lease is or may be
subordinated.
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Section 1.6 RENTAL COMMENCEMENT DATE. Except as herein provided to the
contrary, the phrase "Rental Commencement Date" shall be 3/1/97.
ARTICLE II
RENT AND OTHER CHARGES
Section 2.1 MINIMUM RENT. Tenant shall pay to Landlord without previous
demand therefor and without any setoff or deduction whatsoever except as
expressly provided in this Lease, the Minimum Rent provided in Section 1.1(f),
as adjusted in 2.1 hereof, payable in equal monthly installments, in advance, on
the first day of each and every calendar month throughout the Term. The Minimum
Rent shall commence to accrue on the Rental Commencement Date. The first full
payment date hereunder shall be the first day of the first calendar month
following the Rental Commencement Date and on that date Tenant shall pay to
Landlord the Minimum rent set forth in Section 1.1(f) for the month beginning on
such date plus a proportionate amount thereof for the period, if any, beginning
on the Rental Commencement Date and ending on the day preceding such first full
rental payment date hereunder. Unless otherwise directed by Landlord, all
payments hereunder or required by this Lease shall be made to the address as set
forth in Section 1.1(o).
Section 2.2 OPERATING EXPENSES. In addition to the monthly Base Rent
due pursuant to Section 2.1, herein, Tenant agrees to pay as additional rent to
Lessor, Lessee's proportionate share of the Shopping Center's "Operating
Expenses." The term "Proportionate Share" shall mean that fraction, the
numerator of which is the total number of rentable square feet of space
contained within the Leased Premises and the denominator of which is the total
area of the Shopping Center less the area leased to the Anchor Tenants. The term
"Operating Expenses" shall mean all costs of operation, servicing, management
and maintenance of the Shopping Center containing the Leased Premises less the
sums paid for such costs by the Anchor Tenants, and more particularly but
without restricting the generality of the foregoing, shall include the cost of:
(a) Employees. Salaries, wages, medical, surgical and general
welfare benefits, group life insurance, pension payments,
payroll taxes, workmen's compensation and unemployment
insurance contributions and reimbursable expenses on behalf of
employees.
(b) Utilities. Water and sewer charges, common electric, common
power and fuel and other utilities.
(c) Insurance. Premiums paid by Landlord and attributable to the
fire insurance with standard extended coverage and any other
risks as Landlord may elect or be required to carry covering
all portions of the building or buildings in the Shopping
Center including all improvements, betterments, fixtures,
equipment and machinery installed in such building or
buildings either by Landlord or by the occupants of the
Shopping Center, but excluding the common areas therein and
any personal property, movable trade fixtures and contents
owned by the respective tenants occupying the Shopping Center
(d) Building Maintenance. General Building maintenance, including
any painting, repairs and replacements for the common areas,
roof, walls, upkeep and servicing of the equipment therein,
including all supplies, equipment, tools and materials
required.
(e) Management. The management fee paid to the management company
managing the Shopping Center for the Landlord.
(f) Taxes and Fees. All taxes and assessments and governmental
charges and fees imposed upon the Shopping Center, including
without limitation any occupancy, gross receipts or rental
taxes paid by Landlord, but no income or franchise tax or any
other taxes imposed or measured by Landlord's income or
profits unless the same is in lieu of real estate taxes.
(g) Maintenance of Open Space and Related Expenses. Landscape and
lawn care, sprinkler system service, maintenance of street
lights, power broom sweeping power lot surface and drives,
relining of and sealing of asphalt surface areas, maintenance
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of signs lake banks of lake and growth at waters edge, trash
structures and in general any and all items related to the
asphalt surface space, landscape, sodded areas, sidewalks and
lake and retention areas, including property adjoining or near
the Shopping Center that is maintained by the Shopping Center.
Prior to the commencement of this Lease and during each year
thereafter, Landlord shall furnish to Tenant a written estimate of the Operating
Expenses and Tenant's proportionate Share for the ensuing year or portion
thereof, the annual charge shall be completed on the basis of periods of twelve
( 12) consecutive months as designated by Landlord. Tenant shall pay such
estimated amount to Landlord in equal monthly installments with payments of
Minimum Annual Rent. After the end of each year, Landlord shall furnish to
Tenant a statement setting forth in reasonable detail the actual Operating
Expenses during such period and Landlord and Tenant shall within thirty (30)
days thereafter made such payment or allowance necessary to adjust estimated
payment to Tenant's actual share of Operating Expenses as shown on such
statement. Any amount due Tenant shall be credited against installments next
coming due pursuant to this Section 2.2 or by payment to Tenant when adjustment
is to be made in the last year of the Lease. The calculation of Operating
Expenses for less than a full calendar year shall be based upon the pro-rata
share of Operating Expenses for the calendar year in which the Lease commences
and expires. If at any time during any year of the Lease the rates of any
Operating Expenses items for the Shopping Center are increased to rate(s) or
amount(s) greater than that used in calculating the estimated Operating Expenses
for such year, Tenant's estimated share of such Operating Expenses shall be
increased for the month in which such increase becomes effective and for
succeeding months by increasing Tenant's proportionate Share of Operating
Expenses to reflect such increase as applicable. Upon receipt of notice of such
increase in rate or amount, Landlord shall give Tenant written notice of amount
or estimated amount of increase, the month in which it shall become effective
and Tenant's monthly share thereof: Tenant shall pay such increases to Landlord
as part of Tenant's monthly payments of estimated Operating Expenses as provided
in this Section 2.2 commencing with the month in which such increase shall be
effective. If Landlord shall eliminate the payment of any Operating Expense
item, as a result of the installation of labor-saving devices or by any other
means, the corresponding savings shall be deducted from that year's Operating
Expenses.
Landlord agrees to keep true and accurate records in accordance with
accepted accounting principles of Operating Expenses for each year. Each
Landlord's Operating Expense Statement shall set forth in reasonable sufficient
detail the Operating Expense for said year. Tenant shall have the right during
reasonable business hours and upon not less than five (5) business days prior
written notice to Landlord to such effect to examine and to audit any Landlord's
Operating Expense Statement within six (6) months after the receipt by Tenant of
any such Landlord's Expense Statement. Upon expiration of such six (6) month
audit period Landlord's Operating Expense Statement shall be deemed conclusive
by the Tenant.
Section 2.3 UTILITIES CHARGE. Tenant shall pay promptly, as additional
rents, as and when the same become due and payable all water rents rates and
charges, all sewer rents and all charges for electricity, gas heat, steam hot
and/or chilled water, air conditioning, ventilating, lighting systems, and other
utilities supplied to the Leased Premises. If any such utilities are not
separately metered or assessed or are only partially separately metered or
assessed and are used in common with other tenants in the Shopping Center.
Tenant will pay to Landlord a proportionate share of such charge for the
utilities used in common as set forth in Section 2.2 in addition to Tenant's
payments of the separately metered charges. In addition, Tenant shall pay all
"tap" and "impact" fees charged for connection of utilities to the Leased
Premises, as well as its proportionate share of any and all security deposits
charged by the providers of such utilities.
ARTICLE III
CONSTRUCTION OF LEASED PREMISES
The Leased premises shall be constructed by Landlord and Tenant in
accordance with the provisions of Exhibit "C" annexed hereto and made a part
hereof.
ARTICLE IV
USE OF LEASED PREMISES
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Section 4.1 USE OF LEASED PREMISES. Tenant agrees to use the Leased
Premises only for the permitted uses set forth in Section 1.1j and for no other
purpose. Tenant covenants that the Leased Premises shall during the Term of this
Lease, be used only and exclusively for lawful and moral purposes, and no part
of the Leased Premises or improvements thereon shall be used in any manner
whatsoever for any purposes in violation of the laws, ordinances, regulations,
or orders of the United States, or of the State, County and/or City where the
Leased Premises are located. Tenant shall comply with all such laws, ordinances
regulations or orders now in effect or hereafter enacted or passed during the
Term of this Lease insofar as the Leased Premises and any signs of the Tenant
are concerned, including, but not limited to zoning ordinances, building codes
and fire codes, and shall make it Tenant's own cost and expense all additions
and alterations to the Leased Premises ordered or required by such authorities,
whether in order to meet the special needs of tenant or by reason of the
occupancy of tenant, or otherwise; provided, however, Tenant shall not be
required to make structural alterations to the Leased Premises of the building
in which the Leased Premises are located unless made necessary by reason of the
nature of Tenant's business, work performed in the Leased Premises, or the
manner of operation thereof
Section 4.2 CONTINUOUS OPERATION BY TENANT. Tenant agrees that a
shopping center is an interdependent enterprise, that the Shopping Center's
success is dependent on the continued operation of Tenant's business for the
benefit of all involved, and that maintenance of the character and quality of
the Shopping Center is enhanced by the continued occupancy of the Leased
Premises and the regular conduct of Tenant's business therein. Accordingly,
Tenant agrees to open the Leased Premises for business on the commencement date
provided in Section 1.6 hereof and operate one hundred percent ( 100%) of the
Leased Premises during the entire Term under the name set forth in this Lease or
such other name as Landlord may approve in writing, with due diligence and
efficiency so as to produce all the Gross Sales which may be produced by such
manner of operation. Tenant shall carry at all times in said Leased Premises a
stock of merchandise of such size, character and quality as shall be reasonably
designed to produce maximum Gross Sales.
Section 4.3 ADDITIONAL COVENANTS OF TENANT. Tenant's use of the Leased
Premises and the common areas shall be subject at all times during the Term to
reasonable rules and regulations adopted by Landlord not in conflict with any of
the express provisions hereof governing the use of the parking areas, malls
walks, driveways, passageways, signs, exteriors of building, lighting and other
matters affected other tenants in and the general management and appearance of
the Shopping Center. Tenant agrees to comply with all such rules and regulations
upon notice to Tenant from Landlord Tenant expressly agrees as follows:
(a) All deliveries to or from the Leased Premises shall be done
only at such times, in the areas and through the entrances
designated for such purposes by Landlord.
(b) All garbage and refuse shall be kept inside the Leased
Premises in the kind of container specified by Landlord, and
shall be placed outside of the Leased Premises prepared for
collection in the manner and at the times and places specified
by Landlord. If Landlord shall provide or designate a service
for picking up refuse and garbage, Tenant shall use same at
Tenant's cost. Tenant shall pay the cost of removal of any of
Tenant's refuse and garbage and maintain all common loading
areas in a clean manner satisfactory to the Landlord. If any
part of the Tenant's business shall consist of the preparation
and/or sale of food, including without limitation the
operation of a restaurant, snack shop or food market, Tenant
shall provide refrigerated garbage containers at Tenant's
expenses for the disposal of food scraps and refuse. Tenant
shall use any trash compactor Landlord provides for the
general use of Tenant or tenants in a designated area of the
Shopping Center.
(c) No radio or television aerial or other device shall be erected
on the roof or exterior walls of the Leased Premises or the
building in which the Leased Premises are located without
first obtaining in each instance the Landlord's consent in
writing. Any aerial or device installed without such written
consent shall be subject to removal at Tenant's expense
without notice at any time.
(d) No loud speakers, televisions, phonographs, radios, tape
players or other devices shall be used in a manner so as to be
heard or seen outside of the Leased Premises without the prior
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written consent of Landlord, nor shall Tenant solicit business
or distribute advertising or promotional material in the
common areas.
(e) The plumbing facilities shall not be used for any other
purpose than that for which they are constructed; no foreign
substance of any kind shall be thrown therein, and the expense
of any breakage, stoppage, or damage resulting from a
violation of this provision shall be borne by Tenant. All
grease traps, if any, shall be installed and maintained in
accordance with applicable law and in accordance with
Landlord's requirements.
(f) Tenant at its expense shall contract for termite and pest
extermination services covering the Leased premises, to be
rendered semimonthly.
(g) Tenant shall not burn any trash or garbage of any kind in the
Leased Premises, the Shopping Center or within three (3) miles
of Shopping Center.
(h) Tenant shall keep and maintain the Leased Premises (including,
without limitation, exterior and interior portions of all
windows, doors and all other glass) in a neat and clean
condition.
(i) Tenant at its expense shall participate in any reasonable
window cleaning program that may be established by Landlord
for all or substantially all other stores in the Shopping
Center.
(j) Tenant shall take no action which would violate Landlord's
labor contracts, if any, affecting the Shopping Center, nor
create any work stoppage, picketing, labor disruptions or
dispute, or any interference with the business of Landlord or
any other Tenant or occupant in the Shopping Center or with
the rights and privileges of any customer or either person(s)
lawfully in and upon said Shopping Center, nor shall Tenant
cause any impairment or reduction of the good will of the
Shopping Center.
(k) Tenant shall pay before delinquency all license or permit fees
and charges of a similar nature for the conduct of any
business in the Leased Premises.
(m) Tenant shall store and/or stock in the Leased Premises only
such merchandise Tenant is permitted to offer for sale in the
Leased Premises pursuant to the Lease.
(n) Tenant shall not conduct or permit any fire, bankruptcy,
auction or "going out of business" sale (whether real or
fictitious) in the Leased Premises, or utilize any unethical
method of business operation.
(o) Tenant shall not perform any act or carry on any practice
which may damage mar or deface the Leased Premises or any
other part of the Shopping Center.
(p) Tenant shall not use any forklift truck, tow truck or any
other powered machine for handling freight in the Shopping
Center except in such manner and in those areas in the
Shopping Center as may be approved by Landlord in writing. All
such equipment shall have rubber wheels only.
(q) Tenant shall not place a load on any floor in the interior
delivery system, if any, or in the Leased Premises, or in any
area of the Shopping Center exceeding the floor load which
such floor was designed to carry, nor shall Tenant install,
operate or maintain therein any heave item or equipment except
in such manner as to achieve a proper distribution of weight.
(r) Tenant shall not install, operate or maintain in the Leased
Premises or in any other area of the Shopping Center any
electrical equipment which does not bear underwriter's
approval, or which would overload the electrical system or any
part hereof beyond its capacity for proper and safe operation
as determined by the Landlord.
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(s) Tenant shall not suffer, allow or permit any vibration, noise,
light, odor or other effect to emanate from the Leased
Premises, or from any machine or other installation therein,
or otherwise suffer, allow or permit the same to constitute a
nuisance or otherwise interfere with the safety, comfort and
convenience of Landlord or any of the other occupants of the
Shopping Center or their customers, agents or invitees or any
others lawfully in or upon the Shopping Center. Upon notice by
Landlord to Tenant that any of the aforesaid is occurring,
Tenant agrees to forthwith remove or control the same.
(t) Tenant shall not use or occupy the Leased Premises in any
manner or for any purpose which would injure the reputation or
impair the present or future value of the Leased Premises the
Shopping Center and/or the neighborhood in which the Shopping
Center is located.
(u) Tenant shall not store, display, sell or distribute any
alcoholic beverage or any dangerous materials (including
without limitation fireworks) unless specifically permitted in
this Lease.
(v) Tenant shall not use or occupy the Leased Premises or do or
permit anything to be done thereon in any manner which shall
prevent Landlord and/or Tenant from obtaining at standard
rates any insurance required or desired, or which would
invalidate or increase the cost to Landlord of any existing
insurance, or which might cause structural injury to any
building, or which would constitute a public or private
nuisance or which would violate any present or future laws,
regulations, ordinances or requirements (ordinary or
extraordinary foreseen or unforeseen) of the federal state or
municipal governments or of any department, subdivisions,
bureaus or of offices thereof, or of any other governmental
public or quasi-public authorities now existing or hereafter
created having jurisdiction in the Leased Premises or the
Shopping Center or which they form a part.
(w) Tenant shall not operate on the Leased Premises or in any part
of the Shopping Center any coin or token operated vending
machine or similar device (including, without limitation, pay
telephone, pay lockers, pay toilets, scales, amusement devices
and machines for the sale of beverages, foods, candy,
cigarettes or other merchandise and/or commodities), except
for the sole and exclusive use of Tenant's employees.
(x) Tenant shall conduct no business related activity in the
Common Area.
(y) Tenant and its employees shall park in the employee parking
areas as designated by Landlord.
Section 4.4 SIGNS, AWNINGS AND CANOPIES. Landlord shall erect and
maintain such suitable signs as in its sole discretion may deem appropriate in
the Shopping Center. Tenant shall erect and maintain only such sign as Landlord
may approve in accordance with the criteria set forth on Exhibit "D" attached
hereto. Tenant shall submit to Landlord detailed drawings of its sign for review
and approval by Landlord prior to erecting said sign on the Leased Premises.
Tenant shall keep insured and maintain such sign in good condition,
repair and operating order at all times. If any damage is done to Tenant's sign
Tenant shall commence to repair same within five (5) days or Landlord may at its
option repair same at Tenant's expense.
Tenant shall not place or permit to be placed or maintained on any
door, exterior wall or window of the Leased Premises any sign, awning, or canopy
or advertising matter or other thing of any kind, and shall not place or
maintain any decoration, lettering or advertising matter on the glass of any
window or door of the Leased Premises without first obtaining Landlord's written
consent. Tenant further agrees to maintain any such signs, awnings, canopies,
decorations, lettering, advertising matter or other things as may be approved by
Landlord in good condition, operating order and repair at all times. All signs
of tenant visible from the common areas of the Shopping Center shall be in good
taste and shall conform to the standards of design, motif, and decor from time
to the established by Landlord for the Shopping Center. No flashing signs shall
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be permitted. No credit card signs or advertisements nor any hand lettered signs
shall be visible from the common areas. Tenant shall install professionally
lettered name signs on its service doors.
ARTICLE V
INSURANCE REQUIRED OF TENANT
Section 5.1 INSURANCE REQUIRED OF TENANT.
(a) Tenant shall obtain and provide, on or before the earlier of
the commencement of the Term or Tenant's entering the Leased
Premises for any purpose, and keep in force at all times
thereafter the following insurance coverages with respect to
the Leased Premises:
(i) Comprehensive General Liability Insurance, with
contractual liability endorsement, relating to the
Leased Premises and its appurtenances on an
occurrence basis with a minimum single limit of One
Million Dollars ($ 1,000,000).
(ii) Fire and lightning, Extended Coverage, Vandalism and
Malicious Mischief, Flood (if "required by Landlord,
any mortgage or governmental authority) and War Risk
(if obtainable) Insurance in an amount adequate to
cover the replacement cost of all personal property,
decorations, trade fixtures, furnishings, equipment,
and all contents therein.
(iii) Boiler or Machinery Insurance covering all pressure
vessels, boilers, air conditioning equipment or
similar equipment, if any, in, on, adjoining. above
or beneath the Leased Premises, in an amount of One
Million Dollars ($1,000,000).
(iv) Plate Glass Insurance
(v) Workmen's Compensation Insurance covering all persons
employed, directly or indirectly, in connection with
any finish work performed by Tenant or any repair or
alteration authorization by this Lease or consented
to by Landlord, and all employees and agents of
Tenant with respect to whom death or bodily injury
claims could be asserted against Landlord or Tenant,
as required by the laws of the State where the Leased
Premises are located.
(vi) Rent Insurance covering those risks referred to in
(ii) in an amount equal to all Minimum Annual Rent
and other sums payable under this Lease for a period
of twenty-four (24) months commencing with the date
of loss.
(vii) Such other insurance as may be carried on the Leased
Premises and Tenant's operation thereof, as may be
reasonably determined by Landlord.
(b) Before undertaking any alterations, additions, improvements or
constructions, Tenant shall obtain at its expense a public
liability insurance policy insuring Tenant and Landlord
against any liability which may arise on account of such
proposed alterations, additions, improvements or construction
on an occurrence basis with the minimum limits set forth in
this Section 5.1.
(c) All of the aforesaid insurance except the Workmen's
Compensation Insurance required by subparagraph (a) (v) above
shall be written in the name of Landlord (and any designee(s)
of Landlord) and Tenant and shall be written by one or more
responsible insurance companies satisfactory to Landlord and
in form satisfactory to Landlord; all such insurance may be
carried under a blanket policy covering the Leased Premises
and any other of Tenant's stores; all such insurance shall
contain endorsements that: such insurance may not be canceled
or amended with respect to Landlord (and any such designees)
by the insurance company; Tenant shall be solely responsible
for payment of premiums and that Landlord (or its designees)
shall not be required to pay any premium for such insurance;
in the event of payment of any loss covered by such policy,
Landlord (or its designees) shall be paid first by the
insurance company for Landlord's loss. The minimum limits of
the comprehensive general liability policy of insurance shall
in no way limit or diminish Tenant's liability hereunder.
Tenant shall deliver to Landlord at least fifteen (15) days
prior to the time such insurance is first required to be
carried by Tenant, and thereafter at least fifteen ( 15) days
prior to the expiration of such policy, in compliance with its
obligations hereunder, together with evidence satisfactory to
Landlord of the payment of the premiums therefor. If Tenant
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fails to obtain and provide any or all of the aforesaid
insurance, then Landlord may, but shall not be required to,
purchase such insurance on behalf of Tenant and add the cost
of such insurance as additional rent payable with the next
installment of Minimum Annual rent.
(d) The minimum limits of the comprehensive general liability
policy of insurance shall be subject to increase at any time,
and from time to time, after the commencement of the fifth
(5th) full year of the Term if Landlord shall deem same
necessary for adequate protection. Within thirty (30) days
after demand therefor by Landlord, Tenant shall furnish
Landlord with evidence of Tenant's compliance with such
demand.
(e) Tenant agrees to notify Landlord in writing not less than
thirty (30) days prior to the date Tenant opens for business
in the Leased Premises of the actual cost of all permanent
leasehold improvements and betterments installed or to be
installed by tenant in the Leased Premises (whether same have
been paid for entirely or partially by Tenant), but exclusive
of Tenant's personal property, movable trade fixtures and
contents, in order that Landlord can insure said improvements
and betterments from and after the date Tenant opens for
business in the Leased Premises against fire, standard
extended coverage risks and such other risks as Landlord may
elect or be required to insure. Similar notifications shall be
given to Landlord not less than thirty (30) days prior to the
commencement of any proposed alterations, additions or
improvements to the Leased Premises by Tenant (it same are
permitted under the terms of this Lease) subsequent to the
initial construction of the Leased Premises. If on account of
the failure of Tenant to comply with the foregoing provisions,
Landlord is adjudged a co-insurer by its insurance carrier,
then any loss or damage Landlord shall sustain by reason
thereof shall be borne by Tenant and shall be immediately paid
by Tenant upon receipt of ▇▇▇▇ therefor and evidence of such
loss.
Section 5.2 FIRE INSURANCE RATE AND REQUIREMENTS
(a) Tenant agrees, at its own cost and expense, to comply with all
of the rules and regulations of the Fire Insurance Rating
Organization having jurisdiction and any similar body. If, at
any time and from time to time, as a result of or in
connection with any failure by Tenant to comply with the
forgoing sentence or any act of omission or commission by
Tenant, its employees, agents, contractors or licensees, or as
a result of or in connection with the use to which the Leased
Premises are put (notwithstanding that such use may be for the
purposes herein before permitted or that such use may have
been consented to by Landlord), the fire insurance rate(s)
applicable to the Leased Premises, or the building in which
same are located, or to any other premises in said building,
or to any adjacent property owned or controlled by Landlord,
or an affiliate of Landlord, and/or to the contents in any or
all of the aforesaid properties (including rent insurance
relating thereto) shall be higher than that which would be
applicable for the least hazardous type of' occupancy legally
permitted therein, Tenant agrees that it will pay to Landlord,
on demand, as additional rent, such portion of the premiums
for all fire insurance policies in force with respect to the
aforesaid properties (including rent insurance relating
thereto) shall be higher than that which would be applicable
for the least hazardous type of occupancy legally permitted
therein, Tenant agrees that it will pay to Landlord on demand
as additional rent such portion the premiums for all fire
insurance policies in force with respect to the aforesaid
properties (including rent insurance relating thereto) and the
contents of any occupant thereof as shall be attributable to
such higher rate(s). If Tenant installs any electrical
equipment that overloads the lines in the Leased Premises or
the building in which the Leased Premises are located, Tenant
shall, at its own cost and expenses, promptly make whatever
changes are necessary to remedy such condition and to comply
with all requirements of the Landlord and the Board of Fire
Insurance Underwriters and any similar body and any
governmental authority having jurisdiction thereof shall be
deemed to be conclusive.
(b) In the event that this Lease so permits and Tenant engages in
the preparation of food or packaged foods or engages in the
use, sale or storage of inflammable or combustible material,
Tenant shall install chemical extinguishing devices (such as
annul) approved by the Fire Insurance Rating Organization and
shall keep such devices under service as required by such
organization.
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(c) If gas is used in the Leased Premises Tenant shall install at
its expense gas cutoff devices (manual
and automatic).
Section 5.3 WAIVER OF SUBROGATION. Landlord shall not be liable to
Tenant for any damage by fire or other peril; whether or not included in the
coverage afforded by the standard form of fire insurance policy with extended
coverage endorsement attached (whether or not such coverage is in effect), no
matter how caused, it being understood that the Tenant will look solely to its
insurer for reimbursement. Tenant shall not be liable to Landlord for any damage
by fire or other peril, whether or not included in the coverage afforded by the
standard form of fire insurance policy with extended coverage endorsement
attached (whether or not such coverage is in effect), no matter how caused, it
being understood that Landlord will look solely to its insurer for
reimbursement. Any waiver of Landlord's rights against Tenant contained in this
Section shall be ineffective if such waiver shall cause Landlord's insurance to
be unobtainable, or result in an increase in the cost of Landlord's insurance,
unless Tenant shall pay such increase within ten (10) days after notice thereof.
ARTICLE Vl
REPAIRS AND MAINTENANCE
Section 6.1 REPAIRS BY LANDLORD. Within a reasonable period after
receipt of written notice from Tenant, Landlord shall make necessary structural
repairs to the exterior walls (excluding the exterior of and the frames
surrounding all window, doors, plate glass, store fronts and signs); necessary
repairs to the root foundations, load bearing items, plumbing, pipes, and
conduits located outside the Leased Premises and/or in the common areas, and
necessary repairs to sidewalks, malls, parking areas and curbs. Landlord shall
not be required to make any repairs where same were made necessary by any act or
omission or negligence of tenant, any subtenant or concessionaire, or by fire or
other casualty of condemnation, except as provided in Article VIII.
Section 6.2 REPAIRS AND MAINTENANCE BY TENANT. Tenant shall make and
pay for all repairs to the Leased Premises and all equipment and systems serving
the Leased Premises exclusively and shall replace all things which are necessary
to keep the same in good state of repair and operating order, such as (but not
limited to) all fixtures, furnishings, lighting and store signs of Tenant.
Tenant shall also maintain, replace and keep in good repair and operating order
all air conditioning, ventilating, plumbing, sprinkling, heating and electrical
installations, ceilings, inside walls and carpeting and floor surfaces serving
the Leased Premises whether located within or without the Leased Premises.
Tenant shall at all times keep the Leased Premises and all exterior entrances,
exterior walls, glass and show moldings, partitions, doors, floor surfaces,
fixtures,, equipment and appurtenances thereof in good order, condition and
repair and in a reasonable satisfactory condition of cleanliness, including
reasonably periodic painting of the Leased Premises, and Tenant shall make such
other necessary repairs in or to the Leased Premises not specified in Section
6.1 hereof as being the responsibility of Landlord. Tenant shall at its expense
replace all broken or damaged glass or substitutes therefor, as the case may be.
The provisions of this Section 6.2 shall not limit Landlord's obligation to
restore or repair under Article VIII hereof in the event of fire or other
casualty.
If (i) Tenant does not repair properly as required hereunder and to the
reasonable satisfaction of landlord, or (ii) Landlord, in the exercise of this
sole discretion, determines that emergency repairs are necessary or (iii)
repairs or replacements to the Shopping Center and/or common areas of the Leased
Premises are made necessary by any act or omission or negligence of Tenant, its
employees, subtenants, assignees, concessionaires, contractors invitees,
licensees or visitors, then in any of such events Landlord may make such repairs
without liability to Tenant for any loss or damage that may accrue to Tenant's
merchandise, fixtures, or other property or to Tenant's business by reason
thereof, and upon completion thereof, Tenant shall pay Landlord's costs for
making such repairs plus twenty percent (20%) for overhead, upon presentation of
a ▇▇▇▇ therefor, as additional rent. Said ▇▇▇▇ shall include interest from the
date such repairs were billed by the contractors making such repairs. Tenant
agrees to repair and maintain in good order and condition the non-structural
interior portions of the Leased Premises, including the store front, show
windows, doors, windows, plate and window glass, floor covering plumbing,
heating, air conditioning electrical and sewerage system, facilities and
appliances. Tenant at its sole cost, shall maintain the air conditioning
(including heating units(s) for the Leased Premises) in good condition and
repair throughout the term of this Lease. As a part of this air conditioning
maintenance obligation, Tenant shall enter into an annual contract with an air
conditioning repair from fully licensed to repair air conditioning units in the
State of Florida, which firm shall:
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(1) Regularly service the air conditioning unit(s) on the
Leased Premises on a monthly basis, changing belts,
filters and other parts as required;
(2) Perform emergency and extraordinary repairs on the
air conditioning unit(s);
(3) Keep a detailed record of all services performed on
the Leased Premises and prepare a yearly service
report to be furnished to the Tenant at the end of
each calendar year.
Tenant shall furnish to Landlord, at the end of each calendar year, a
copy of said yearly service report. Not later than thirty (30) days prior to the
date of commencement of the term of this Lease and annually thereafter, Tenant
shall furnish to Landlord a copy of the air conditioning maintenance contract
described above, and proof that the annual premium for the maintenance contract
has been paid. Nothing stated herein above shall limit Tenant's obligation to
maintain the air conditioning unit(s) in good condition and repair throughout
the term of this Lease.
Section 6.3 INSPECTION. Landlord or its representative shall have the
right to enter the Leased Premises during any business day (and in emergency at
all times) during the Term.
Section 6.4 OBSTRUCTIONS. Tenant agrees to keep its loading facilities,
if any, and the sidewalks and mall areas immediately adjoining the Leased
Premises free from trash, litter or obstructions, and in addition, if the Leased
Premises open onto an outside area, to keep outside sidewalk area immediately
adjoining the Leased Premises free from ice and snow.
ARTICLE VII
ADDITIONS AND ALTERATIONS
Section 7.1 BY LANDLORD. Landlord hereby reserves the right at any time
and from time to time, providing visibility of an access to the Leased Premises
are not materially and adversely affected, to make alterations or addition to
the building in which the Leased Premises are contained, and to construct other
buildings adjoining the same. Landlord also reserves to construct other
buildings or improvements in the Shopping Center, provided, however, that such
construction or additions shall not unreasonably interfere with the operations
of Tenant's business whereunder except when such work is necessitated by
emergency.
If an excavation shall be made upon land adjacent to the Leased
Premises, Tenant shall permit the person authorized to cause such excavation a
license to enter upon the Leased Premises for the purpose of doing such work as
such person deems necessary to preserve the wall of the building of which the
Leased Premises form a part from damage and to support the same by proper
foundations and Tenant shall not be entitled to any claim for damages or
indemnification against Landlord.
Section 7.2 BY TENANT. Provided that tenant shall not then be in
default, Tenant may from time to time, at its own expense and upon compliance
with the requirements of the last paragraph of Section 6.2 hereof, alter,
renovate or improve the Leased Premises provided the same be performed in a good
and workmanlike manner, in accordance with accepted building practices and
applicable laws, including, but not limited to, building codes and zoning
ordinances; and so as not to weaken or impair the strength or lessen the value
of the building in which the Leased Premises are located. No changes,
alterations or improvements affecting the exterior of the Leased Premises or the
structure of the building within which the Leased Premises are located shall he
made by Tenant Prior to commencement of all the such work, Tenant shall obtain
Landlord's prior written approval of the plans and specifications thereof and
shall cause Landlord's requirements for bonding, insurance and other contractor
requirements to be satisfied. Any work done by Tenant under the provisions of
this Section 7.2 shall be so conducted so as not to interfere with the use by
other tenants of their premises in the Shopping Center.
ARTICLE VIII
DAMAGE, DESTRUCTION OR CONDEMNATION OF THE LEASED PREMISES
Section 8.1 DAMAGE OR DESTRUCTION. If all or any part of the Leased
Premises shall be damaged or destroyed by fire or other casualty, the Lease
shall continue in full Force and effect, unless terminated as hereinafter
provided, and landlord shall repair, restore or rebuild the Leased Premises to
their condition as initially constructed by Landlord in accordance with Exhibit
11
"B" hereof, provided, however, Landlord shall not be obligated to continence
such repair, restoration or rebuilding until insurance proceeds are received by
Landlord, and Landlord's obligation hereunder shall be limited to the proceeds
actually received by Landlord under any insurance policy or policies, if any
which have not been required to be applied towards the seduction of any
indebtedness secured by a mortgage covering the Shopping Center or any portion
thereof.
Landlord's obligations under this Article VIII to repair, replace
and/or rebuild the Leased Premises shall not apply to any permanent leasehold
improvements and betterments to be installed or to be installed by Tenant on the
Leased Premises (the same having been paid for entirely or partially by Tenant),
or Tenant's personal property, movable trade fixtures and contents.
Tenant covenants and agrees to reopen for business in the Leased
Premises within thirty (30) days after notice from Landlord that the Leased
Premises are ready for re occupancy. No damage or destruction to the Leased
Premises shall allow Tenant to surrender possession of the Leased Premises nor
affect Tenant's liability for the payment of rents or charges or any other
covenants herein contained except as may be specifically provided in this Lease
Notwithstanding anything to the contrary contained in this Section 8.1
or elsewhere in this Lease, Landlord, at its option, may decline to repair the
Leased Premises and terminate this Lease on thirty (30) days notice to Tenant
if:
(a) The Leased Premises or the building in which the Leased
Premises are located shall be damaged or destroyed as a result
of an occurrence which is not covered by Landlord's insurance;
or
(b) The Leased Premises shall be damaged or destroyed during the
last three (3) years of the Term or any renewals thereof; or
(c) Any or all of the Leased Premises, buildings or common areas
of the Shopping Center are damaged (whether or not the Leased
Premises are damaged) to such extent that the Landlord, in its
sole judgment decides it does not wish to continue operation
of the Shopping Center or that portion of which the Leased
Premises is a part.
If the Leased Premises shall be damaged or destroyed and in the event
that Landlord has elected to continue this Lease, Landlord and Tenant shall
commence their respective obligations under this Article as soon as is
reasonably possible and prosecute the same to completion with all due diligence.
In the event of any termination of this Lease under the Provisions of
this Section 8.1, this Lease shall terminate at the end of the calendar in which
such notice of termination is given.
The Minimum Rent shall be abated proportionately with the degree to
which Tenant's use of the Leased Premises is unpaired during the period of any
damage, repair or restoration provided for in this Article VIII provided further
that in the event Landlord elects to repair any damage as herein contemplated,
any abatement of Minimum Rent shall end fifteen (15) days after notice by
Landlord to Tenant that the Leased Premises during any such period to the extent
reasonably practicable from the standpoint of prudent business management, and
any obligation of Tenant under the Lease to pay Percentage Rent shall remain in
full force and nothing in this Section shall be construed to ▇▇▇▇▇ Percentage
Rent. Except for the abatement of Minimum Rent herein above provided, Tenant
shall not be entitled to any compensation or damage for loss in the use of the
whole or any part of the Leased Premises and/or any inconvenience or annoyance
occasioned by any damage, destruction, repair or restoration.
Unless this Lease is terminated by Landlord, Tenant shall repair and
refixture all parts of the Leased Premises not insured under any insurance
policies insuring Landlord in a manner and to a condition equal to that existing
prior to its destruction or damage, including, without limitation, all exterior
signs, trade fixtures, equipment, display cases, furniture furnishings and other
installations of personally of Tenant. The proceeds of all insurance carried by
Tenant on its property and improvements shall be held in trust by Tenant for the
purpose of said repair and replacement.
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Tenant shall give to Landlord prompt written notice of any damage to or
destruction of any portion of the Leased Premises resulting from fire or other
casualty.
Section 8.2 CONDEMNATION. In the event that the whole of the Leased
Premises shall be taken under the power of eminent domain, or proceedings in
lieu thereof, this Lease shall thereupon terminate as of the date possession
shall be so taken.
Anything in this Lease to the contrary notwithstanding, in the event
more than twenty percent (20%) of the Leased Premises or more than twenty-five
percent (25%) of the then existing paved parking spaces of the Shopping Center
shall be taken or conveyance made in lieu thereof either party shall have the
right to cancel and terminate this Lease as of the date of such taking upon
giving notice to the other of such election within thirty (30) days after the
date of such taking. In the event of such cancellation, the parties shall
thereupon be released from any further liability under this Lease, except for
obligations existing on the effective date of such termination; provided,
however, that if more than twenty-five percent (25%) of the then existing paved
parking spaces shall be appropriated or taken, or conveyance made in lieu
thereof, Landlord may at its option nullify and vacate Tenant's right to cancel
this Lease as herein before provided by giving Tenant notice within thirty (30)
days after the date of such taking that it will provide substitute parking on or
adjacent to the Shopping Center sufficient to equal to at least seventy-five
percent (75%) of the number of spaces prior to such taking, or conveyance made
in lieu thereof, in which event the Lease shall remain in full force and effect.
If a portion of the Leased Premises is taken, and if this Lease shall
not be terminated as provided in the preceding paragraph, then the provisions of
this Lease shall remain in full force and effect, except that the Minimum Rent
shall be reduced in the same proportion that the amount of Floor Area remaining
after such taking bears to the total Floor Area immediately prior to such
taking, and Landlord shall, upon receipt of the award in confirmation, or
proceedings in lieu thereof; make all necessary repairs or alterations to the
building in which the Leased Premises are located so as to constitute the
portion of the building not taken a complete architectural unit, but Landlord
shall not be required to spend for such work an amount in excess of the net
amount received by Landlord as damages for the part of the building within which
the Leased Premises are located so taken. "Amount received by Landlord" shall
mean that part of the award in condemnation or proceedings in lieu thereof,
which is free and clear to Landlord of any collection by mortgagees for the
value of the diminished fee. Tenant at its over cost and expense shall restore
and refixture such part of the Leased Premises as is not taken to as near its
former condition as the circumstances will permit, including, without
limitation, all exterior signs, trade fixtures, equipment, display cases,
furniture furnishings and other installations of personally of Tenant.
All compensation awarded or paid upon such a total or partial taking of
the Leased Premises or the building within which the Leased Premises are located
shall belong to and be the property of Landlord without any participation by
Tenant. Tenant shall, however, be entitled to claim, prove and receive in such
condemnation proceedings such award as may be allowed for relocation costs,
fixtures and other equipment installed by it but only to the extent that the
same shall not reduce Landlords award and only if such award shall be in
addition to the award for the land and building (or portion thereof) containing
the Leased Premises. To the extent that the Tenant has a claim in condemnation
proceedings, as aforesaid, Tenant may claim from condemnors, but not from
Landlord, such compensation as may be recoverable by Tenant.
It is mutually agreed that (i) any reduction in the parking lot area,
number of parking spaces in the Shopping Center, or the imposition of any
restriction on the number of motor vehicles that may enter the Shopping Center
by action or order of any governmental authority, quasi-governmental authority,
or by any court having jurisdiction in the premises (other than by actual
exercise of the power of eminent domain such that title passes to the condemning
agency) shall not constitute such a taking or condemnation under this Lease that
would entitle Tenant to terminate the Lease, (ii) any such environmental
condemnation or compliance by Landlord with any order, rule or regulation of any
such authority, with any such judicial decree, or any such existing or future
law shall not constitute a default under this Lease by Landlord so as to entitle
Tenant to terminate the Lease and the Lease shall remain in full force and
effect, and (iii) as between Landlord and Tenant, Landlord may but shall not be
obligated to comply with any such order, rule, regulation, judicial decree or
law.
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ARTICLE IX
SUBORDINATION, ESTOPPEL CERTIFICATES AND LANDLORD'S FINANCING REQUIREMENTS
Section 9.1 SUBORDINATION. This Lease is subordinate, junior and
inferior to all ground and underlying leases, all first mortgages and deeds of
trust and at the election of landlord to all junior mortgages and deeds of
trust, which now or hereafter affect the Premises and to any and all
advancements to be made thereunder and to all renewals, modification,
consolidations, replacements, and extensions thereof and Tenant, if requested by
Landlord, shall subordinate this Lease and all interest of Tenant to all ground
and underlying leases and mortgages and deeds of trust which may now or
hereafter effect the Premises and to any and all advances to be made thereunder
and all renewals, modification, consolidations, replacements and extensions
thereof.
Section 9.2 ESTOPPEL CERTIFICATE . Tenant shall, without charge, at any
time and from time to time, within ten (10) days after request by Landlord
deliver a written instrument to Landlord or any other person, firm or
corporation specified by Landlord, duly executed and acknowledged, certifying
that this Lease is unmodified, and is in full force and effect or if their has
been any modification, that the same is in full force and effect as so modified,
and identifying any such modifications, whether or not there are then existing
any set-offs or defenses in favor of Tenant against the enforcement of any of
the terms, covenants and conditions of this Lease by Landlord, and if so,
specifying the same, and also whether or not Landlord has observed and performed
all of the terms, covenants and conditions on the part of Landlord to be
observed and performed, and if not, specifying the same, the dates to which
Minimum Rent, Percentage Rent Additional Rent and all other charges hereunder
have been paid.
Section 9.3 LANDLORD'S FINANCING REQUIREMENT. Anything in this Lease to
the contrary notwithstanding, it is agreed that in the event the lender or
lenders which Landlord selects to provide construction financing, permanent
financing or any construction or permanent loan refinancing during the term
hereof of any renewal requests modifications of any of the provisions of this
Lease (except those concerning the size and location of the Premises, the term,
hereof; and the rental and other charges payable by Tenant under this Lease) and
Tenant shall refuse to approve in writing any such modification within fifteen
(15) days after Landlords request therefore, Landlord shall have the right to
terminate this Lease by written notice to Tenant. If Landlord's right to
terminate this Lease is exercised as aforesaid, this Lease shall be thereafter
null and void; any money or security deposited hereunder shall be resumed to
Tenant and neither party shall have any liability to the other by reason of such
cancellation.
Section 9.4 ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of said Premises, or in the event of exercise of
power of sale under any mortgage or deed of trust made by the Landlord covering
the Premises, or in the event of a sale by Landlord of its fee or leasehold
interest in the Shopping Center or its interest in this Lease, attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
Landlord under this Lease.
ARTICLE X
DEFAULT
Section 10.1 EVENTS OF DEFAULT. Any of the following shall constitute
an Event Default under this Lease:
(a) The failure of Tenant to pay any Minimum Rent or Percentage
Rent within 10 days of its due date;
(b) The failure of Tenant to make any other payment provided for
under this Lease within 10 days of its due date;
(c) Abandonment of the premises as defined in Section 10.4;
(d) The failure of Tenant to perform or observe any obligation,
covenant, or term required to be performed or observed by
Tenant under this Lease other than the payment of money;
(e) The insolvency of Tenant;
14
(f) Tenant is generally not paying Tenant's debts as such debts
become due;
(g) A receiver is appointed to take charge of Tenant's assets,
including the Leased Premises or the contents of the Leased
Premises, or both;
(h) Tenant makes an assignment for the benefit of Tenant's
creditors;
(i) A petition or other proceeding is filed by or against Tenant
under the Bankruptcy laws of the United States, or under the
insolvency laws of any state; and
(j) Except as otherwise expressly provided in this Lease, Tenant's
interest in this Lease, or right to possession of the Leased
Premises, or both, passes to or devolves upon, by operation of
law or otherwise, one other than Tenant.
Section 10.2 LANDLORD'S RIGHTS TO DEFAULT.
(a) Non monetary Default. Upon the occurrence of any Event of
Default itemized in Section 10.1 (other than (a), (b) and (c),
Landlord may give written notice of such Event of Default to
Tenant, and in such event, Tenant shall immediately upon the
giving of such written notice and continually and diligently
thereafter, pursue Tenant's obligations in question and seek
to cure such Event of Default, but in any event Tenant shall
have a maximum of ninety (90) days in which to cure the
complaint of Event or Events of Default. Upon of the failure
of Tenant to cure any Event of Default within the time herein
before provided, or if Tenant shall fail to diligently and
continually seek to remedy any complaint of Event of Default
(other than (a) or (b) or (c) of Section 10.1. Landlord may
declare the rights of Tenant under this Lease terminated and
at an end by giving written notice of such termination of
Tenant's rights to Tenant and Tenant shall thereupon
immediately quit and surrender the Leased Premises to
Landlord, remaining liable, nevertheless, to Landlord as
hereinafter provided Upon Landlord's termination of Tenant's
rights hereunder, landlord shall be entitled to apply the
security deposit specified in Section 1.1(n) hereof to its own
purposes without thereby diminishing or affecting any of
Tenant's obligations hereunder for the payment of Minimum Rent
or Percentage Rent or other charges, the Landlord may
immediately, or at any time thereafter, reenter the Leased
Premises and remove all persons and all or any property
therefrom, by any suitable action or proceeding at law, or
otherwise, without being liable for any prosecution therefor
or damages resulting therefrom, and repossess and enjoy the
Leased Premises, together with all additions, alterations and
improvements, to which remedies and acts Tenant specifically
consents. In the event of such reentry, Landlord may, at its
option, repair, alter, remodel and change the character of the
Leased Premises as it may deem fit, and at any time release
the Leased Premises or any part or parts thereof, as the agent
of Tenant or otherwise.
The exercise by Landlord of any right granted hereunder shall
not relieve Tenant from the obligation to make all payments of
Minimum Rent, Percentage Rent or other charges, and to fulfill
all other covenants required by this Lease, at the time and in
the manner provided herein Tenant throughout the remainder of
the Term hereof shall pay Landlord, no later than the last day
of each month during the Term, and then current excess, if
any, of the sum of the unpaid rentals and costs to Landlord
resulting from such default by Tenant over the proceeds, if
any, received by Landlord from a reletting of Leased Premises,
if any Landlord shall not be required to relet the Leased
Premises nor exercise any other right granted to Landlord
hereunder, nor shall Landlord be under any obligation to
minimize Tenant's loss as a result of Tenant's default. If
Landlord attempts to relet the Leased Premises, Landlord shall
be the sole judge as to whether or not a proposed tenant is
suitable and acceptable. Recovery of possession for the
account of Tenant shall not waive or impair Landlord's
absolute right to thereafter terminate this Lease at any time
without further notice to Tenant
In addition to the foregoing rights and remedies of
the Landlord upon termination of Tenant's rights under the
Lease the landlord shall have the option to accelerate all
15
current and future monetary obligations of the Tenant,
including remaining installments of rent, and such accelerated
amounts, less the fair rental value of the premises for the
residue of the term, shall be construed as liquidated damages
and shall constitute a debt provable in bankruptcy or
receivership. For purposes of this subparagraph, "fair rental
value" for the premises shall be deemed to be, at any time
during the term of this Lease, seventy-five Percent (75%) of
the minimum rent as provided in Article 1. Such accelerated
unpaid rent shall accrue interest at the highest rate allowed
by law until paid in full.
This section 10.2 shall apply to any renewal or
extension of this Lease; and if Tenant shall default hereunder
prior to the date fixed as the commencement of any renewal or
extension of this Lease, Landlord may cancel such renewal or
extension agreement by ten (10) days written notice to Tenant.
(b) Monetary Default. Upon Tenant's failure to pay the Minimum
Rent or Percentage Rent or any other payment provided under
the Lease (whether or not treated as additional rents) within
ten (10) days of its due date (i.e., Events of Default (a) and
(b) of Section 10.1, Landlord shall provide three (3) days
written notice to Tenant requiring payment in full of all sums
then due and owing or possession of the Leased Premises.
Unless payment of delinquent sums be forthcoming from Tenant
within said three-day period, in cash or cashier's check drawn
on local funds, Landlord shall have the absolute right to
immediately file legal proceedings to recover possession of
the Leased Premises as well as any unpaid rents or other sums
owing from Tenant. In any possessory action by landlord based
upon Tenant's nonpayment of rent or other charges as required
hereunder, Tenant expressly waives any defense other than
payment Tenant's obligation to pay rent is independent of any
duty or obligation of the Landlord under this Lease. In
addition, Landlord shall be entitled, as a matter of strict
legal right, to enforce his rights as Landlord under the
distress for rent proceedings provided by Florida Statutes,
Section 83.11 et. seq., and in furtherance thereof, Tenant
hereby expressly waives any right to personal service of the
writ of distress and consents and agrees that such writ shall
be binding and legally enforceable on Tenant if the same is
served upon Tenant by posting the writ of distress on the main
door of the Leased Premises or if the writ is served as
provided for in the manner of delivery of other notices under
Section 11.14, hereafter. The rights of Landlord under this
Subsection (b) of Section 10.2, including the right of rental
acceleration, and any other rights or remedies provided under
the law.
Section 10.3 NON-WAIVER OF PROVISIONS. The failure of Landlord to
insist upon strict performance of any of the terms, conditions and covenants
herein shall not be deemed to be a waiver of any right or remedies that Landlord
may have and shall not be deemed a waiver of any subsequent breach or default in
the terms and covenants herein contained except as may be expressly waived in
writing.
The maintenance of any action or proceeding to recover possession of
the Leased Premises, or any installment or installments of minimum Rent,
Percentage Rent or any other moneys that may be due or become due from Tenant to
Landlord, shall not preclude Landlord from thereafter instituting and
maintaining subsequent actions or proceedings for the recovery of possession of
the Leased Premises or of any other moneys that may be due or become due from
Tenant Any entry or reentry by Landlord shall not be deemed to absolve or
discharge Tenant from liability hereunder.
Section 10.4 ABANDONMENT OF PREMISES. "Abandonment" hereunder shall be
deemed to include but shall not be limited to either (a) any vacancy of the
Leased Premises by Tenant for ten (10) consecutive days without Landlord's
proper written consent, or (b) non-operation of the Tenant's business in the
Leased Premises for a period often (10) consecutive days without Landlord's
prior written consent.
In the event of Tenant's abandonment of the premises, as herein above
defined, Landlord shall provide Tenant with ten (10) days written notice of
Landlord's intention to reenter and repossess the premises, said notice to also
be conspicuously posted on the premises, without recourse to further legal
proceedings, unless Tenant objects within said ten (10) day period. Should
Tenant not object within the said ten (10) day period, Landlord shall have the
absolute right to reenter the Leased Premises without legal proceedings and
16
without being liable for any prosecution therefore or damage resulting
therefrom, and repossess and enjoy the Leased Premises, together will all
additions, alterations and improvements, to which remedies and acts the Tenant
specifically consents. Thereafter, Landlord shall he entitled to the same rights
and remedies as if said reentry and repossession had occurred pursuant to legal
action and as more specifically consents. Thereafter, Landlord shall be entitled
to the same rights and remedies as if said reentry and repossession had occurred
pursuant to legal action and as more specifically defined in Section 10.2(a).
Section 10.5 ABANDON OF PERSONAL PROPERTY. Should Tenant fail to remove
its personal property upon abandonment, expiration, termination or recovery of
possession by the Landlord, then upon such abandonment, expiration, termination
or recovery of possession and after ten (10) days written notice to Tenant to
remove its property, said notice to also be conspicuously posted on the
premises, all personal property of any nature then remaining on the premises
shall be deemed abandoned and title thereto shall best exclusively in the
Landlord. Landlord may thereafter remove and dispose of or liquidate said
personal property as Landlord may deem proper in its sole and absolute
discretion, provided, however, the proceeds of any sale or liquidation of such
property shall be applied first to reduce any sums owed by Tenant to Landlord,
including storage costs, attorney's fees and any other expenses incurred by
Landlord resulting from such abandonment and any sums remaining shall be resumed
to Tenant. Tenant hereby waives and agrees to and hold Landlord harmless from
any claim loss or damage arising from Landlord's dealing with Tenant's property
pursuant to the terms of this paragraph.
Section 10.6 INABILITY TO PERFORM. Landlord and/or Tenant shall be
excused for the period of any delay and shall not be deemed in default with
respect to the performance of any of the terms, covenants and conditions of this
Lease when prevented from so doing by cause or causes beyond the Landlord's
and/or Tenant's control, which shall include, without limitation, all labor
disputes, governmental regulations or controls, fire or other casually,
inability to obtain material or services, acts of God, or any other cause, not
within the reasonable control of the Landlord and/or Tenant.
Section 10.7 DEFAULT BY LANDLORD. Landlord shall in no event be in
default in the performance of any of its obligations contained in this Lease
unless and until Landlord shall have failed to perform such obligation within
thirty (30) days, or such additional time as is reasonably required to correct
any such default, after notice by Tenant to Landlord properly specifying wherein
Landlord has failed to perform any such obligation. Notwithstanding any default
by Landlord, Tenant shall not be excused from the obligation to pay all rents
and charges required under this Lease as the same become due.
Section 10.8 ATTORNEY'S FEES. If either party heretofore shall at any
time be in default hereunder, and if the other party hereto shall deem it
necessary to engage attorneys to enforce such other party's rights hereunder,
the determination of such necessity to be in the sole discretion of such other
party, the defaulting party will reimburse such other party for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
reasonable attorney's fees, including appellate proceedings.
ARTICLE Xl
OTHER PROVISIONS
Section 11.1 DEFINITION AND LIABILITY OF LANDLORD. The term "Landlord"
as used in this Lease shall mean only the owner or mortgage in possession for
the time being of the building in which the Leased Premises are located or the
owner of a leasehold interest in said building or the land thereunder so that in
the event of sale of said building or leasehold interest or an assignment of
this Lease, or a demise of said building or land Landlord shall be and in hereby
entirely freed and relieved of all obligations of Landlord subsequently
accruing. It is specifically understood and agreed that there shall be no
personal liability of Landlord in respect to any of the covenants, conditions or
provisions of this Lease; in the event of a breach or default by Landlord of any
of its obligations under this Lease, Tenant shall look solely to the equity of
the Landlord in the Shopping Center for the satisfaction of Tenant's remedies.
Section 11.2 RELATIONS OF THE PARTIES. Nothing contained in this Lease
shall be deemed or construed as creating the relationship of principal and agent
or a partnership or joint venture between the parties hereto, it being
understood and agreed that neither the method of computing rents nor any other
17
provision contained herein nor any acts of the parties hereto shall be deemed to
create any relationship between the parties other than that of Landlord and
Tenant.
Section 11.3 SECURITY DEPOSIT. Tenant has deposited with Landlord the
sums set forth in Paragraph 1.1 (l) as security for the performance by Tenant of
its obligations under this Lease. Landlord shall use, retain or apply all or any
part of such Security Deposit, without obligation for interest, to the extent
required to cure any default by Tenant under this Lease. If Tenant complies with
all of the terms and conditions of this Lease, the Security Deposit or balance
thereof; shall be resumed to Tenant at the expiration of the Term. In the event
of a sale of the Shopping Center or assignment of this Lease by Landlord to any
person other than a mortgagee, Landlord shall have the right to transfer the
security to its vendee or assignee, subject to the provisions of this Lease, and
thereupon Landlord shall be released from any liability with respect to such
security deposit, such vendee or assignee to be solely responsible to Tenant
therefore. Tenant shall not assign or encumber its interest in the security
deposit, and neither Landlord nor its successors and assigns shall be bound by
any attempted assignment or encumbrance.
Section 11.4 INDEMNITY. Tenant, during the Term, any extension or
renewal thereof, and any period in which Tenant occupies or uses the Leased
Premises, shall indemnify and save harmless Landlord, its agents, servants and
employees and Landlord's lessor, if any, from and against any and all claims and
demands whether for injuries to persons or loss of life, or damage to property,
related to or arising in any manner whatsoever out of the use and occupancy of
the Leased Premises by Tenant or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, lessees,
concessionaires, invitees, licensees and customers. In the event Landlord shall,
without fault on its part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord harmless and shall
pay all costs, expenses and attorney's fees incurred by Landlord in connection
with such litigation.
Section 11.5 DAMAGE TO PROPERTY OR PERSONS. Except with respect to the
gross negligence or the willful and wanton acts of Landlord, its agents and
employees, Landlord shall not be liable for any loss of or damage to property of
Tenant or of others located in the Leased Premises or the Shopping Center, by
theft or otherwise, nor for any loss or damage whatsoever to any property which
Tenant could remove at the end of the Term as provided in Section 11.7 hereof,
Landlord shall not be liable for any injury or damage to persons or property or
to the interior or the Leased Premises resulting from fire, explosion, failing
plaster, steam, gas, electricity, water, rain or snow or leaks from any part of
the Leased Premises or from the pipes, appliances or plumbing works or from the
roof; street or subsurface of from any other place or by dampness or by any
other cause of whatever nature; Landlord shall not be liable for any such injury
or damage caused by other tenants or any person(s) either in the Leased Premises
or elsewhere in the Shopping Center, or by occupants of property adjacent to the
Shopping Center, or by the Public, or by operations in the construction of any
private, public, or quasi-public work; Landlord shall not be liable for any
latent defect in construction except for a period of one (1) year from the date
of the general construction of the Leased Premises (the parties agree that any
liability of Landlord under the preceding clause shall be limited to cost of
repair only; Landlord shall not be responsible for damage or loss of property of
Tenant kept or stored on the Leased Premises.
Section 11.6 ASSIGN OR SUBLETTING . Tenant shall not assign this Lease
or sublet all or any part of the Leased Premises without the prior written
consent of Landlord and upon such terms and conditions as may be mutually agreed
upon by the parties. Any assignment or sublease by Tenant shall be only for the
purposes specified in Section 1.1 hereof and for no other purpose, and in no
event shall any assignment or sublease of the Leased Premises release or relieve
Tenant from any of its obligations under this Lease. Consent of Landlord to any
assignment or subletting shall be in Landlord's sole and absolute discretion.
In the event Tenant shall assign its interest in this Lease or sublet
the Leased Premises for rentals in excess of those rentals served thereunder,
Tenant shall pay all of such excess rent to Landlord as additional rent.
Any proposed assignee or subtenant of tenant shall assume Tenant's
obligations hereunder and deliver to Landlord an assumption agreement in form
satisfactory to Landlord within ten (10) days after the effective date of the
assignment.
18
Section 11.7 SURRENDER OF PREMISES. At the expiration or termination of
the tenancy hereby created, Tenant shall surrender the Leased Premises in good
condition and repair, reasonable wear and tear excepted, and Tenant shall
surrender all keys for the Leased Premises to Landlord at the place then fixed
for the payment of rent and shall inform Landlord of all combinations, on locks,
safes and vaults, if any, in the Leased Premises. Tenant's obligations to
observe or perform this covenant shall survive the expiration or other
termination of this Lease.
Prior to the expiration or sooner termination of this Lease, Tenant
shall remove any and all trade fixtures, equipment and other unattached items
which Tenant may have installed, in the Leased Premises, including, but not
limited to, counters, shelving, show cases, chairs and unattached movable
machinery purchased or provided by Tenant and which are susceptible of being
moved without damage to the building of which the Leased Premises are a part.
Tenant shall repair any, damage to the Leased Premises caused by its removal of
such fixtures and movable. In the event Tenant does not make such repairs,
Tenant shall be liable for and agrees to pay Landlord's cost and expenses in
making such repairs, together with a sum equal to twenty percent (20%) of such
costs and expense to cover Landlord's overhead in making such repairs for
Tenant. Tenant shall not remove any plumbing or electrical fixtures or
equipment, heating or air conditioning equipment, floor coverings (including but
not limited to wall-to-wall carpeting), walls or ceilings, all of which shall be
deemed to constitute a part of the interest and estate of Landlord nor shall
Tenant remove any fixtures or machinery that were furnished or paid for by
Landlord whether initially installed or replaced. The Leased Premises shall be
left in a broom-clean condition. If Tenant shall fail to remove its trade
fixtures or other property as provided in this Section 11.7, such fixtures and
other property not removed by Tenant shall be deemed abandoned by Tenant and at
the option of Landlord shall become the property of Landlord's option may be
removed by Landlord at Tenant's expense plus twenty percent (20%) as herein
before provided, or placed in storage at Tenant's expense, or sold or otherwise
disposed of, in which event the proceeds of such sale or other disposition shall
belong to Landlord.
Section 11.8 HOLDOVER BY TENANT. In the event that the Tenant shall
hold the Leased Premises after the expiration of the Term without the express
written consent of Landlord, and provided further that the Landlord has accepted
rental from the Tenant during the holdover period, such holding over shall he
deemed to have created a tenancy from month to month terminable on fifteen (15)
days written notice by either party to the other, upon a monthly rental basis,
and otherwise subject to all the terms and provisions of this Lease, except as
contemplated to the contrary in this Section 11.8. Such monthly rental shall be
computed on the basis of one-sixth (1/6) of the sum of all rents payable to
Tenant to Landlord during the preceding twelve (12) months of the Term
(including, but not limited to, Minimum Rent and Percentage Rent) and all other
additional charges provided by this Lease. During such monthly tenancy Landlord
shall have the right at any time to enter the Leased Premises to show the Leased
Premises to prospective tenants.
If Tenant fails to surrender the Leased Premises upon the expiration of
the Term, in addition to other liabilities to Landlord accruing therefrom,
Tenant shall indemnify and hold Landlord harmless from loss or liability
resulting from such failure, including without limitation, any claims made by
any succeeding tenant founded on such failure.
Section 11.9 LIEN OF LANDLORD FOR RENTS, TAXES AND OTHER SUMS. Landlord
shall have and Tenant hereby grants, a security interest in any furnishings,
equipment, fixtures, retail merchandise and other property of any kind belonging
to Tenant, or the equity of Tenant therein, located on or derived from
activities conducted in or upon the Leased Premises. The security interest is
granted for the purposes of securing the payment of Minimum Rent, Percentage
Rent, other charges, assessments, penalties and damages herein covenanted to be
paid by Tenant, and for the purposes of securing the performance of all other
obligations of Tenant hereunder. Upon Tenant's default or breach of any
covenants of this Lease, Landlord shall have all remedies available under the
law of the State of Florida, including, but not limited to, the right to enforce
this lien pursuant to distress proceedings as provided in Chapter 83, Florida
Statutes.
Section 11.10 LIENS. Tenant shall discharge any lien filed against the
Shopping Center or any part thereof for work done or materials furnished at
Tenant's request with respect to the Leased Premises within ten (10) days after
such lien is filed. If Tenant fails to keep this covenant, in addition to any
other remedies available to Landlord under this Lease or Tenant agrees to pay
Landlord a sum equal to the amount of the lien thus discharged by Landlord plus
19
all costs and expenses, including, without limitation, attorney's fees and court
costs, incurred by Landlord in discharging such lien.
Tenant shall never, under any circumstances, have the power to subject
the interest of the Landlord in the Premises to any construction, mechanics' or
materialmen's lien or liens of any kind, nor shall any provision in this Lease
ever by construed as empowering the Tenant to encumber or cause the Landlord to
encumber the title or interest of Landlord in the Premises. In order to comply
with the provisions of Section 713.10, Florida Statues, it is specifically
provided that neither the Tenant nor anyone claiming by, through or under the
Tenant, including but not limited to, contractors, subcontractors, materialmen,
mechanics and laborers, shall have any right to file or place any construction,
mechanics' or materialmen's liens of any kind whatsoever upon the Premises nor
upon any building or improvement thereon, nor upon the interest of the Landlord
in the Premises or any building or improvement thereon, and any such liens are
specifically prohibited. All parties with whom the Tenant may deal are put on
notice that the Tenant has no power to subject the Landlord's interest to any
claim or lien or any kind of character, and all such persons who are dealing
with the Tenant may look solely to the credit of the Tenant, and not to the
Landlord's interest or assets.
Section 11.11 LATE CHARGE. Tenant acknowledges that late payment by
Tenant to Landlord or rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount which would be
extremely difficult and impractical to ascertain. Such costs include, but are
not limited to, processing and accounting charges. Therefor, in the event Tenant
shall fail to pay any installment of rent or any sums due hereunder after such
amount is due Tenant shall pay to Landlord as additional rent a late charge
equal to 5% of all sums past due and said charge shall be due and payable
immediately as additional rent. In addition, any amounts due pursuant to the
terms of this Lease and any late charges not paid within thirty (30) days of the
due date shall incur interest at the rate of twelve percent (12%) per annum.
Section 11.12 CONSENTS. With respect to any provisions of this Lease
which either provides or is held to provide that Landlord shall not unreasonably
withhold or unreasonably delay any consent or approval Tenant shall not be
entitled to make any claim for, and Tenant hereby expressly waives any claim for
damages incurred by Tenant by reason of Landlord's failure to comply therewith,
it being understood and agreed that Tenant's sold remedy therefor shall be an
action for specific performance.
Section 11.13 WAIVER OF RIGHT OF REDEMPTION. Tenant hereby expressly
waives any and all rights of redemption conferred by statute or otherwise.
Section 11.14 NOTICES. Unless specified to the contrary elsewhere in
the Lease, whenever notice or any other communication shall or may he given or
served to either of the parties by the other, each such notice or communication
shall be sent by registered or certified mail with return receipt requested to
the respective addresses of the parties as contained herein or to such other
address as either party may from time to designate in writing to the other. Any
notice or communication under this Lease shall be deemed to have been given or
served at the time it is placed in the mails with sufficient postage prepaid and
shall he valid and binding, regardless of whether such notice is resumed
undeliverable or the receipt of such notice is otherwise unacknowledged.
Section 11.15 RECORDING AND SHORT FORM LEASE. Tenant agrees not to
record this Lease without the express prior written consent of Landlord and
further agrees to execute, acknowledge and deliver at any time after the date of
this Lease, at the request of landlord, "Short Form Lease" for recording. All
recording costs, fees or charges due and payable upon the recording of such Form
Lease (including, without limitation, any and all taxes due or collectible upon
such recording) shall be payable in full by the party recording same.
Section 11.16 ENTIRE AND BINDING AGREEMENT: APPLICABLE LAW. This Lease
contains all of the agreements between the parties hereto, and it may not be
modified in any manner other than by agreement in writing, signed by all the
parties hereto or their successors in interest The terms, covenants and
conditions contained herein shall inure to the benefit of an be binding upon
Landlord and Tenant and their respective successors and assigns, except as may
be otherwise expressly provided in this Lease. This Lease and the rights and
duties of the parties hereunder, shall be construed in accordance with the laws
of the State of Florida.
20
Section 11.17 PROVISIONS SEVERAL. If any term or provisions of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be held to be invalid or unenforceable by a court of competent
jurisdiction, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is invalid
or unenforceable shall not be affected thereby and each term and provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
Section 11.18. CAPTIONS. The captions contained herein are for
convenience and reference only and shall not be deemed a part of this Lease or
construed as in any manner limiting or exemplifying the terms and provisions of
this Lease to which they relate.
Section 11.19 RADON GAS. Florida Statute 404.056(8). Radon gas is a
naturally occurring radioactive gas that when it is accumulated in a building in
sufficient quantities may present health risks to persons who are exposed to it
over time. Levels of Radon that exceed federal and state guidelines have been
found in building in Florida. Additional information regarding radon and radon
testing may be obtained from your county health unit.
Section 11.20 NO OPTION. The submission by Landlord to Tenant of this
Lease shall be deemed solely for Tenant's consideration and not for acceptance.
Such submission shall have no binding force or effect, shall not constitute any
rights or impose any obligations upon either party. The execution and return of
this Lease by Tenant to Landlord shall be deemed Tenant's offer to lease the
Leased Premises. This Lease shall have no binding force and effect unless and
until Tenant and Landlord have executed this Lease and a duplicate executed
original hereof shall have been returned by Landlord to Tenant.
Section 11.21 BROKERS COMMISSION. The Tenant represents and warrants to
Landlord that there are not claims for brokerage commissions or finders fees in
connection with the execution of this Lease, except as listed below, and agrees
to indemnify, defend and save the Landlord harmless from all liabilities arising
from any such claim (including, without limitation, the cost of counsel fees in
connection therewith) except as set forth in Section 1.1(q).
21
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written, each acknowledging receipt of any
executed counterpart hereof.
Signed, Sealed and Delivered in the Presence Of:
LANDLORD: Sterling Tequesta/Trails
Limited Partnership
Sterling I Florida, L.C.,
Its General Partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- --------------------------------
ITS: Member
DATE: 10/18/96
------------------------------
TENANT:The Commercial Bancorp, Inc.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- --------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ITS: President
DATE: 10/18/96
------------------------------
22
LEASE RIDER
LANDLORD: Sterling Tequesta/Trails, Limited Partnership
TENANT: The Commercial Bancorp, Inc.
DATE OF LEASE: October 18, 1986
The provisions of this Rider shall take precedence over any conflict between the
provisions of this Rider and the provisions of the Lease attached hereto:
SECTION 1. OPTION TO RENEW: Provided Tenant is not in default under any of the
terms and conditions of this Lease agreement or Rider section, Landlord grants
to Tenant One ( I ) option to extend the term of this Lease agreement for Five
(5) years, which options shall be exercised by Tenant giving written notice to
Landlord at least one hundred eighty ( 180) days prior to the expiration of the
original Lease Term, and if applicable, any extended term. Time is of the
essence with respect to Tenant's delivery of said written notice to Landlord.
The terms during the option period shall be the same as the terms of the Lease,
except that the Minimum Rent will equal the then adjusted annual rent as
provided for in this Lease and there will be no Rental Credit.
SECTION 2. TERMINATION OF EXISTING LEASE: If Landlord is unable to terminate the
Lease with the existing Tenant, First State Bank, by November I, l 996 this
Lease shall become null and void.
SECTION 3. TENANT'S RIGHT TO TERMINATE: Notwithstanding the date herein
definitely fixed for the end and expiration of the term of this Lease, at the
end of the third (3rd) anniversary of the Rent Commencement Date, Tenant will
have the absolute and unconditional right to terminate the Lease as modified
hereby, and end the term hereof, provided Tenant give Landlord not fewer than
one hundred and twenty ( 120) days' prior written notice of said termination,
which notice will set forth the termination date; on such date the Lease as
modified hereby, and the term hereof will end and expire as fully and completely
as if such date were the day herein definitely fixed for the end and expiration
of the Lease as modified hereby, and Tenant will then vacate and surrender the
Premises to Landlord in the condition required by the Lease as modified hereby.
If the date of termination is not the last day of a calendar month, Minimum
Annual Rent and additional rent for the month in which such date occurs will be
appropriately apportioned. Tenant acknowledges that if it does exercise its one
time right to terminate as set forth above on the termination of the Lease as
modified hereby, Landlord will be paid within thirty days of the Termination
Date an amount which will be equal to one year's payment of Minimum Rent as
described in Section l .1 (f) and all operating expenses as described in Section
2.6 for one year being the fourth (4th) year of the primary term. Accordingly,
if Tenant holds over after the termination of the Lease as modified hereby,
Tenant will pay to Landlord, in addition to the aforementioned sum commencing
the day after the termination a charge for use and occupancy of the Premises as
outlined in the Lease. Tenant's payment for such use and occupancy is not be
construed as giving Tenant the right to occupy all or any part of the Premises
after the termination of the Lease as modified hereby.
SECTION 4. REGULATORY AUTHORITY APPROVAL AND TAKEOVER: Notwithstanding any other
provisions contained in this lease, in the event the Lessee is closed or taken
over by the banking authority of the State of Florida, or other bank or
association supervisory authority, the Lessor may terminate the lease only with
the concurrence of such banking authority or other bank supervisory authority
and any such authority shall in any event have the election either to continue
or to terminate the lease: Provided, that in the event this lease is terminated,
the maximum claim of Lessor for damages or indemnity for injury resulting from
the rejection or abandonment of the unexpired term of the lease shall in no
event be in an amount exceeding the rent reserved by the lease, without
acceleration, for the year next succeeding the date of reentry of the Lessor,
whichever first occurs whether before or after the closing of the bank or
association, plus an amount equal to the unpaid rent accrued, without
acceleration up to such date.
23
Signed this 18th day of October , 1996.
WITNESS: LANDLORD: STERLING TEQUESTA/
TRAILS LIMITED PARTNERSHIP
Sterling I Florida, L.C.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ General Partner
------------------------------
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ ----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ITS: Member
Date: 10/18/96
--------------------------------
WITNESS: TENANT: THE COMMERCIAL
BANCORP, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ ----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ITS: President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ DATE: 10/18/96
------------------------------ ----------------------------------
24
EXHIBIT "A"
LEGAL DESCRIPTION
THE TRAILS SHOPPING CENTER
PARCEL 1
Part of Government ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 32 East;
part of the ▇▇▇▇▇ ▇▇▇▇▇ Grant, Section 41, T14S, I 32E and part of Lots 3 and 4,
THE TRAILS SUBDIVISION, UNIT 3, as shown on map in Map Book 33, Page 156 of the
Public Records of Volusia County, Florida, and being more particularly described
as follows: Beginning at the Southeast corner of ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ of beginning being also the Southwesterly corner of
Government ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇; thence N. 89 14'52" E 172.33 feet
along the said Government Lot 3 Southerly line to the Westerly Right-of Way line
of NOVA ROAD, a 100-foot R/W road; thence NO 40'50" E 50.10 feet along the said
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇/▇ line; thence S 89 14'52" W 174.75 feet to the said
Government Lot 3 Westerly line; thence N 0 04'53" W 100 feet along the said
Government Lot 3 Westerly line; thence N 89 14'52" E 179.58 feet to the Westerly
R/W line of said NOVA ROAD: thence NO 40'50" E 67.70 feet along the said ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇/▇ line to a S.D. concrete monument marking the point of
curvature of a curve concave to the West with a central angle of 28 22'14" and a
radius of 1860.08 feet thence Northerly along the said curve and ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇/▇ line for an arc distance of 921.04 feet to a SRD concrete monument
marking the point of tangency thereof; thence ▇▇▇ ▇▇'▇▇" W 223.56 feet along the
said ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇/▇ line to its intersection with the Southerly Right-of
Way line of THE TRAIL, as shown on map of THE TRAILS SUBDIVISION, UNIT 3 PARTIAL
REPLAT, recorded in Map Book 33, page 189 of the Public Records of Volusia
County, Florida; thence ▇▇▇ ▇▇'▇▇" W119.53 feet along the said TRAIL Southerly
R/W line; thence ▇▇▇ ▇▇'▇▇" W 253.75 feet along the said TRAIL Southerly R/W
line to the point of curvature of a curve concave to the South with a central
angle of 16 18'37" and a radius of 614.81 feet; thence Westerly along the said
curve and TRAIL Southerly R/W line for an arc distance of 175.02 feet to the
point of compound curvature of a curve concave to the Southeast with a central
angle of 76 07'55" and a radius of 15 feel, the said point also being the point
of intersection of the Easterly Right of Way line of STONEHAVEN TRAIL, as shown
on map of THE TRAILS SUBDIVISION, UNIT 7, recorded in map Book 34, Page 90 of
the Public Records of Volusia County, Florida; thence Southerly along the said
curve and STONEHAVEN TRAIL Easterly R/W line for an arc distance of 19.93 feet
to the point of compound curvature of a curve concave to the East with a central
angle of 25 29'49" and a radius of 409.23 feet; thence Southerly along the said
curve and STONEHAVEN TRAIL Easterly R/W line for an arc distance of 182.11 feet
to the point of tangency thereof; thence S 27 29'38" E 474.31 feet along the
said STONEHAVEN TRAIL Easterly R/W line to the point of curvature of a curve
concave to the Southwest with a central angle of 5 24' 29" and a radius of 275
feet; thence Southerly along the said curve and STONEHAVEN TRAIL Easterly R/W
line for an arc distance of 25.96 feet; thence N 62 30' 22" E 31 feet; thence S
27 29'38" E 30 feet; thence S 62 30'22" W 35.52 feet to a point on a non tangent
curve concave to the West with a central angle of 1 59'56" and a radius of 275
feet, said point also being on the said STONEHAVEN TRAIL Easterly R/W line;
thence Southerly along the said curve and STONEHAVEN TRAIL Easterly R/W line for
an arc distance of 9.59 feet to a point on a non tangent curve concave to the
West with a central angle of 17 28'07" and a radius of 1360.08 feet; thence
Southerly along the said curve for a arc distance of 414.67 feet to the point of
tangency thereof; thence S 2 40'50" W 250.79 feet to the Southerly line of said
▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇; thence N 88 45' 46" E 328.45 feet along said Lot 4
Southerly line to the point of beginning. Less and except that parcel for
Security First Federal described below. Exception for Security First Federal
Savings and Loan. Being a part of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 32 East
(▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇), U.S. Gov't. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 32
East and U.S. Gov't ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 32 East and
being more particularly described as follows; Commence at the Intersection of
the Westerly right of way of Nova Road (SR415) a 100 foot right-of-way and the
Southerly line of U.S. Govt. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 32
East; thence along the Westerly right of way of Nova Road N 02 40'50" E, 218.00
feet to a point of curvature, thence continue on said right of way by a curve
concave to the Southwest having a radius of 1860.08 feet a central angle of 14
27'06", an arc length of 469.16 feet, said arc being subtended by a chord
bearing of North 04 32'43" West 467.92 feet for the point of beginning, thence
South 78 13'44" West, 40.65 feet, thence North 59'15'58" West 138.22 feet;
thence North 19 30'12" East, 61.36 feet; thence North 68 30'12" East 105.00 feet
to a point in the Westerly right ▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇; thence along said Westerly
right of way being a curve concaye to the Southwest having a radius of 1860
25
feet, a central angle of 5'02'42", for a arc length of 163.78 feet, said arc
being subtended by a chord bearing of South 14 17'37" East, 163.73 feet to the
point of beginning.
PARCEL 2
LAKE AREA
---------
Lying in U.S. Government ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇; Range 32 East,
and being a part of ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇, as shown on map in
Map Book 33, Page 156 of the Public Records of Volusia County, Florida. Lying
Westerly of Stonehaven Trail and Easterly of Woodridge as shown on map in Map
Book 35, Pages 159 and 160 of the Public Records of Volusia County Florida.
Begin at the Southeast corner of Woodridge as previously described said point
being on the Northerly right-of' way of Stonehaven Trail a 50 foot right-of way
as per plat The Trails Subdivision, Unit 7, as shown on map in Map Book 34, Page
90 of the Public Records of Volusia County, Florida: thence along said right
of-way of Stonehaven Trail for the (3) following courses and distances: (1)
Thence N 80 44'11" E 58.33 feet to a point of curvature of a curve being concave
to the Northwest; (2) Thence along said curve having a radius of 225.00 feet, a
central angle of 108 13'49" for an arc length of 425.02 feet said arc being
subtended by a chord bearing of N 26 37'] 6" E a distance of 364.59 feet to the
point of tangency of said curve; (3) Thence along the tangent of the previously
described curve N 27 29'38" W - 332.91 feet; Thence along the easterly boundary
of Woodridge for the (10) following courses and distances; (4) Thence S 62
30'22" W 121 feet; (5) Thence S 18 30'22" W - 80.00 feet; (6) Thence S 30 29'38"
E 77.37 feet; (7) Thence S 04 29'37" W - 63.97 feet; (8) Thence S 00 45 '49" E
45.00 feet; (9) Thence S 10 45'49" E 113.00 feet; (10) Thence S 18 14'11" W
36.00 feet; (11) Thence S 01 45'49: E 105.00 feet; (12) Thence S 42 15'49" E -
27 feet; (13) Thence S 09 15'49" E - 22.00 feet to the POINT OF BEGINNING.
PARCEL 3
LEGAL FOR SHOPPING CENTER ACCESS INGRESS AND EGRESS FOR VEHICLE STORAGE AREA .
A part of The Trails Subdivision, Unit No. 3, per Map Book 33, Page 156 of the
Public Records of Volusia County, Florida. A part of U.S. Government ▇▇▇ ▇,
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇. Range 32 East and being more particularly
described as follows:Commence at the Southeast corner of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ 32 East; Thence S 88 45'46" W along the southline of Section 17, a
distance of 328.45 feet; Thence N 02 40'50" E 250.79 feet for the point of
beginning; Thence N 80 42'39" W 25.79 feet; Thence N 67 51'18" W 108.52 feet;
Thence N 02 44'03" W 92.94 feet to a point in the Southerly right of way of
Stonehaven Trail a 50 foot right-of-way; Thence along said right of way by a
non-tangent curve being concave to the Northwest having a radius of 275 feet a
central angle of 62 43'~ 3", for an arc length of 301.04 feet, said arc being
subtended by a chord bearing of N 17 35'52" a distance of 286.24 fee'; Thence
leaving said last described line by a non radial curve, said arc being concave
to the West having a radius of 1360.08 feet a central angle of 17 28'07" for an
arc length of 414.67 feet, said arc being subtended by a chord bearing of S 06
05'40 E a distance of 413.08 feet.
26
EXHIBIT "C"
CONSTRUCTION OF LEASED PREMISES
SECTION "A": INITIAL CONDITION OF THE PREMISES
------------------------------------------------
Tenant has inspected the leased Premises and by executing this Lease Tenant
shall be deemed to have accepted the Leased Premises, in an "as is" condition,
and Landlord shall have no other obligations hereunder.
SECTION "B": WORK BY TENANT IN PREMISES AT TENANT'S EXPENSE
-----------------------------------------------------------
All work by Tenant in the Premises shall be performed by Contractors approved in
advance by Landlord per the plans submitted by Tenant and approved by the
Landlord.
1. Utilities: Tenant shall directly arrange for utilities at the Tenant's
expense shall include, but are not limited to the following:
(a) All building, plumbing, occupancy and other required permits,
and furnish copies to the Landlord.
(b) Telephone outlet hook-up throughout bay.
(c) All required utility meters and fees.
2. Non-Combustible Construction: All Tenant construction shall be
non-combustible.
3. Discipline: Tenant shall enforce strict discipline and good order among the
employees of Tenant's contractors and subcontractors.
4. Tenant's Work: Tenant shall commence Tenant's Work and diligently and
continually proceed to complete the Premises in accordance with the approved
Final Plans and permits.
5. Permits: Tenant shall obtain all necessary permits from the jurisdictional
authority and forward a copy of the permits to the Landlord prior to the start
of any work in the Premises.
6. Certificate of Occupancy: Tenant shall secure an occupancy permit from the
jurisdictional authorities, and provide a copy to Landlord upon receipt.
7. Sub-Contractors: Tenant shall provide Landlord with a list of all
contractors, suppliers and sub-contractors, prior to commencing any
improvements.
8. Insurance: Tenant shall provide Landlord with copies of Certificate of
insurance and Competency from all contractors and sub-contractors.
9. Release of Liens: Tenant shall provide Landlord with releases of lien in a
form acceptable to Landlord naming Landlord and others as designated by Landlord
as progress payments are made.
Upon completion of the work Tenant shall obtain Final Release of Liens from
all sub-contractors and contractors within ten (10) working days of completion
of work prior to final acceptance by Landlord.
SECTION "C": WORK BY LANDLORD IN PREMISES AT TENANT'S EXPENSE:
--------------------------------------------------------------
1. Roof Openings Any roof opening required, will be performed by l Landlords
roofing contractor, at Tenant's expense. Such openings will include supporting
27
structures, angles, curies, flashing, ducts, vents and grills. I Landlord may
refuse to approve any openings which, in Landlord's judgment exceed the
capability of the structural system.
SECTION "D": PROCEDURE
----------------------
1. Tenant Coordinator: Landlord's Tenant Coordinator shall be responsible for
the review of each Tenant's Design Drawings and Final Plans. All questions
pertaining to the design and construction of Tenant's Premises and all plans
submittals shall be directed to the Tenant Coordinator at the following address:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE STERLING COMPANIES
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
2. Plans: Tenant shall supply Landlord with two (2) sets of plans and
specifications for Landlord's approval. These plans should include reflected
ceiling plan, interior layout and finishes, plumbing, mechanical and electrical
plans. If Landlord does not approve the plans Landlord shall note their reasons
for such disapproval and Tenant shall, within ten (10) days after receipt of
such "disapproval" Plans, correct any deficiencies noted by Landlord and
re-submit the revised Plans to Landlord, for Landlord's approval. Tenant's work
shall be performed only in accordance with the approved plans.
3. Cleaning of Premises: Tenant shall maintain the Premises and surrounding
areas in a clean and orderly condition during construction and merchandising.
Tenant shall promptly remove all unused construction materials, equipment,
shipping containers, packaging, debris, and flammable waste, resulting from
Tenant's construction at Tenant's Expense.
4. Violations: In the event the Tenant is notified of any violations of codes,
ordinance regulations, requirements or guidelines, either by Jurisdictional
authorities or by the Landlord, Tenant shall immediately notify Landlord and, at
its expense, correct such violations within ten (10) calendar days after such
notification or within a reasonable period of time.
28
TRAILS SHOPPING CENTER
EXHIBIT "D
SIGN CRITERIA
A. SIGN CRITERIA
-------------
1. All signs shall be positioned over the storefront as directed in these
sign criteria.
2. All wording of signs shall not include the product sold unless it is in
the company name.
3. No animated, flashing, audible or smoke emitting signs will be
permitted.
4. No exposed lamps or tubing will be permitted.
5. No signs shall bear the UL label, and their installation shall comply
with all local building and electrical codes.
6. No exposed raceways, crossovers or conduits will be permitted.
7. All cabinets, conductors, transformers and other equipment shall be
concealed. Visible fasteners will not be permitted.
8. Electrical service to all signs shall be on Tenant's meter.
9. Tenant shall remove all previous signs and shall patch and paint fascia
to match existing building color prior to installation of Tenant's
signage.
B. SIGN SIZES
----------
1. The overall length of the sign shall not exceed 2/3 of the width of the
storefront. Maximum height shall be 18 inches.
2. Major Tenant signage: Size will be at Landlord's discretion and subject
to its approval, and will be mounted as directed by these sign
criteria.
C. SIGN TYPES
----------
1. Tenant shall provide the following sign types at Tenant's expense prior
to opening for business:
(a) One (1) Individual illuminated channel letter canopy sign with
bronze metal returns to be placed on the canopy above the
storefront. Color of faces to be subject to prior approval of
Landlord. Color of faces must be requested by Tenant as part
of Tenant's Sign Plans submission.
(b) One (1) under canopy hanging sign with the Tenant's same name
identification and script as the Tenant's canopy sign per
Landlord's design specifications.
29
(c) One (1) storefront identification sign at the entrance to the
Leased Premises with the Tenant's same name identification and
script as the Tenant's canopy sign per Landlord's design
specifications.
D. CONSTRUCTION REQUIREMENTS
-------------------------
1. All signs, cabinets, fastenings and clips shall be of enameling iron
with porcelain enamel finish, stainless steel, aluminum, brass or
bronze, or carbon-bearing steel with factory painted finish. No black
iron material or any type will be permitted.
2. All letters and/or cabinets shall be fabricated using full welded
construction.
3. All penetrations of the building structure required for sign
installation shall be neatly sealed.
4. No labels will be permitted on the exposed surface of signs except
those required by local ordinance, which shall be applied in an
inconspicuous location.
5. Tenant's sign contractor shall repair and/or replace any damage caused
by his work.
6. Tenant shall be fully responsible for work performed by Tenant's sign
contractor.
7. Corrosion resistant threaded rods or anchor bolts with sleeves shall be
used to mount letters. Angle clips attached to sides of letters will
not be permitted.
E. APPROVALS
---------
1. All permits for signs and their installation shall be obtained by
Tenant or its representative, if required.
2. Tenant shall submit to Landlord for approval, before fabrication, one
(1) sepia and four (4) prints of detail drawings indicating the
location, size, layout, design and color of the proposed sign,
including all lettering.
3. Tenant shall be responsible for the fulfillment of all requirements of
these sign criteria, and shall submit samples of sign materials if
requested by Landlord.
30
Exhibit 23.1
Consent of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A.,
(Included in the Opinion Letter)
31