Exhibit 6.3
AMENDED AND RESTATED
SHOPPING CENTER SPACE LEASE
THIS AMENDED AND RESTATED SHOPPING CENTER SPACE LEASE (this "Lease") is
made as of the 15th day of September 1998, by and between JACKS' SUNILAND
CENTER, LTD., a Florida limited partnership ("Landlord") and FLORIDA SAVINGS
BANK, a Florida banking corporation ("Tenant"). This Lease, together with an
Amended and Restated Shopping Center Space Lease for the "Retail Space" as shown
in Exhibit "A" described herein between Landlord and Florida Savings Bancorp,
Inc., replaces in its entirety that Shopping Center Space Lease between Landlord
and Florida Savings Bancorp dated June 11, 1998.
1. PREMISES: COMMON AREAS: Landlord leases to Tenant and Tenant
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leases from Landlord 6,734 square feet of enclosed space comprising the eastern
seventy-four feet (74') of the building located at 0000 X.X. 117th Street,
Village of Pinecrest, in Miami-Dade County, Florida, and more specifically shown
as "Bank Space" in the sketch attached as Exhibit "A" hereto and by these
references made a part hereof (the "Premises") which comprises a portion of
JACKS' SUNILAND CENTER, Pinecrest, Florida ("Suniland Center"), the legal
description of which is attached hereto as Exhibit "B", together with the right
to use, in common with others, the parking areas, and other ingress/egress at
Suniland Center.
2. LEASE TERM: LEASE DATE:
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A. General. The lease term ("Lease Term") is for 5
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years, commencing on September 15, 1998 (the "Lease Commencement Date").
Tenant's obligation to pay all rent, including Base Rent and Additional Rent,
(collectively, "Rent"), as such terms are hereafter defined, will commence on
the earlier of (x) ninety (90) days after the Lease Commencement Date, or (y)
the date the Tenant opens for business within the Premises (the "Rent
Commencement Date").
B. Default Prior to Rent Commencement Date. The parties
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agree that as long as Tenant shall have duly kept and performed all of the terms
and conditions to be kept and performed by Tenant under this Lease, Tenant may
occupy the Premises for the time period beginning on the Lease Commencement Date
and ending on the Rent Commencement Date (hereinafter referred to as the "Rent
Free Period"), for purposes of constructing the Tenant Improvements (hereafter
defined), without the payment of any "Base Rent" or "Additional Rent", provided,
however, that (i) all of the other terms and provisions of this Lease shall
apply during the Rent Free Period. The Rent Free Period shall terminate on the
Rent Commencement Date. From and after the Rent Commencement Date, Tenant shall
begin paying all rent due hereunder, that is, Base Rent and Additional Rent,
pursuant to all the terms of this Lease.
3. RENT:
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A. Base Rent. During the Lease Term, Tenant will pay as
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the base rent for the Premises and the Premises Building ("Base Rent") in the
amounts described in this Section 3, with same being payable without demand,
setoff or deduction, in advance, on or before the first day of each month, in
equal monthly installments, plus applicable sales and other similar taxes as
are now or later enacted.
(1) During the first Lease Year, Tenant shall
pay Base Rent of $151,515.00 in 12 monthly payments of $12,626.25 (calculated as
follows: 6,734 sq. ft. Premises x $22.50 sq. ft./year).
(2) Commencing on the first anniversary of the
Lease Commencement Date, and an every anniversary hereafter during the Lease
Term, and any Extension Terms (as hereinafter defined) as way be applicable.
Tenant's payments of annual Base Rent shall increase by an amount computed in
accordance with the following provisions:
(a) Landlord shall compute the increase of the
cost of living for each lease year based on the Consumer Price
Index - Urban Wage Earners and Clerical Workers (US, City
Average - all items) 1982-84 = 100, hereinafter called the
"Index," published by the Bureau of Labor Statistics of the
United States Department of Labor. The Index number indicated
in the Column for U.S. City Average entitled "All Items" in
September of each Lease Year shall be the "Current Index
Number,"
and the corresponding index number on September, 1998, shall
be the "Base Index Number." In the event the Index is
discontinued, the Consumer Price Index-Seasonally Adjusted
U.S. - City Average for All Items for Urban Wage Earners and
Clerical Workers (198284 - 100) published monthly in the
"Monthly Labor Review" by the Bureau of Labor Statistics of
the United States Department of Labor ("CPI-W") shall be used
for making the computations described below. In the event
CPI-W is discontinued, comparable statistics published by a
responsible financial periodical or recognized authority
selected by the Landlord shall be used for making the
computation described below. Once computed, Landlord shall not
be obligated to make any adjustments or recomputation,
retroactive or otherwise, by reason of any revision or
corrections which may later be made in the Index.
(b) The new payment of annual Base Rent for
each Year shall be arrived at by multiplication of the payment
of Base Rent for the preceding Lease Year by a fraction, the
numerator of which shall be the Current Index Number and the
denominator of which shall be the Base Index Number. The new
annual payment of Base Rent, divided into twelve monthly
installments, shall be due and payable to Landlord commencing
on the first day of each successive Lease Year.
Notwithstanding the preceding, in no event shall the increase
to annual Base Rent in any Lease Year be less than three
percent (3 %) or more than five percent (5 %) of the preceding
Lease Year's Base Rent.
(3) In consideration of the Tenant Improvements
to be constructed by Tenant at its expense, Landlord shall grant to Tenant a
credit against the foregoing Base Rent in consideration of the value of the
Tenant Improvements described in Section 10 in the sum of $91,200. The credit
shall be applied in sixty (60) equal installments against sixty (60) months of
Base Rent payable hereunder, beginning with the second month's Base Rent payable
hereunder.
B. Taxes. In addition to the Rent required by Section 3.A.
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hereof, and other charges required of Tenant, Tenant agrees to pay as Additional
Rent, during the Lease Term and say Extension Term thereof, a proportionate
share of the Taxes on Suniland Center, which, until the construction of
additional enclosed space as described later in this Section, shall be equal to
twenty-four and 67/100 percent (24.67%) of said Taxes attributable to the
unimproved land and eighty-two and 22/100 percent (82.22%) of the Taxes
attributable to the Building. At such time as the number of square feet of
enclosed rentable space at Suniland Center increases due to Landlord's
construction of additional space, Tenant's proportionate share of the Taxes,
without differentiation between land and improvements, shall be recalculated
based upon such increase of square feet as of the date upon which a certificate
of completion is issued therefor by dividing the number of rentable square feet
of enclosed space within the Premises by the total number of rentable square
feet of enclosed space at Suniland Center.
(1) Landlord shall provide to Tenant a copy of each
year's actual ad valorem tax xxxx for Suniland Center no later than November
10th of each year and Tenant shall pay to Landlord Tenant's proportionate share
of the November discounted amount shown thereon within fifteen (15) days of
receipt.
(2) For the Tax Year in which Lease Term commences or
terminates, the provision of this Section shall apply, but Tenant's liability
for its proportionate share of any Taxes for such year shall be subject to a
pro-rata adjustment based upon the number of days of such Tax Year falling
within the Lease period beginning with the Rent Commencement Date.
C. Definition of Material Terms.
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(1) The term "Taxes" shall mean the gross amount of all
impositions, taxes assessments (special or otherwise), water and sewer
assessments and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes therefor, including all taxes whatsoever (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
any inheritance, estate, succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payable by Landlord as a separate
tax-paying entity without regard to Landlord's income source as arising from or
out of Suniland
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Center) attributable in any manner to the Premises, Premises Building, the land
on which the Premises and/or the Premises Building are located or the rents
(however the term may be defined) receivable therefrom, or any part thereof, or
any use thereon, or any facility located therein or used in conjunction
therewith or any charge or other amount required to be paid to any governmental
authority, whether or not any of the foregoing shall be designated "real estate
Tax," "sales tax," "rental tax," "excise tax," "business tax," or designated in
any other manner. If at any time during the Lease Term, or any of the Extension
Periods, the methods of taxation prevailing on the date hereof shall be altered
so that in lieu of or on addition to or as a substitute of the whole or any part
of the taxes, assessments, levies, impositions or charges now levied, assessed
or imposed on real estate and the improvements thereon, there shall be levied,
assessed or imposed a tax assessment, or otherwise on the rents received
therefrom, or a tax, assessment, levy, imposition or charge measured by or based
in whole or in part upon the Premises or the Premises Building thereon, or the
land therein, or any of them, and imposed upon Landlord, or a license fee,
income, or similar tax based upon rents payable by Tenant to landlord, a
franchise, income or similar tax based upon rents and/or other income from real
estate and the improvements thereon, then all such taxes, assessments, levies,
impositions or charges so measured or based or imposed against the Premises
and/or the Premises Building or any other part thereof, or all of them, or the
Landlord, shall be deemed to be included within the term "Taxes" for the
purposes hereof.
(2) The term "Rent" shall mean the Base Rent and shall
also include Additional Rent. The term "Additional Rent" is sometimes used
herein to refer to any and all other sums payable by Tenant hereunder, including
but not limited to late fees, reasonable attorney's fees and expenses, interest
charges on past due payments and all other amounts paid by Landlord as a result
of Tenant's failure to abide by the terms of this Lease. Tenant agrees to pay
Additional Rent upon demand by Landlord and that Additional Rent is to be
treated in the same manner as Rent hereunder, both in terms of the lien for Rent
herein provided and in terms of the default provisions herein contained.
D. Related Provisions.
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(1) Tenant covenants and agrees to pay a late charge for
any payment of Rent not received by Landlord on or before the fifteenth (15th)
day of each month and for any other payment including, but not necessarily
limited to, Additional Rent, not received by Landlord on or before the date when
same is due. Said late charge shall be computed from the first day of the month
in the case of Rent and from the date when same is due in the case of any other
payment including, but not necessarily limited to, Additional Rent. The amount
of the late charge shall be an amount equal to the interest accruing on the
sum(s) outstanding, with such interest commencing on the dates aforesaid, ending
on the date of receipt of the sum(s) by Landlord and having a rate equal to
eighteen percent (18%) per annum. In the event any late charge is due to
Landlord, Landlord shall advise Tenant in writing and Tenant shall pay said late
charge to Landlord along with and in addition to the next payment of Rent.
(2) All sums due and payable pursuant to the terms and
provisions of this Lease shall be paid by Tenant without offset, demand or other
credit, and shall be payable only in lawful money of the United States of
America which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment. All sums payable by Tenant hereunder by check
shall be obtained against a financial institution located in the United States
of America. The Rent and Additional Rent shall be paid by Tenant at Suniland
Center management office located in Suniland Center or elsewhere as designated
by Landlord in writing to Tenant. Landlord hereby acknowledges payment by Tenant
of the amount of the first month's Base Rent and Florida State Sales Tax for the
first month of this Lease, plus an amount equal to the first month's Base Rent
to be held as an interest bearing Security Deposit.
(3) In addition to Base Rent and Additional Rent, Tenant
shall and hereby agrees to pay to Landlord each mouth a sum equal to any sales
tax on rentals and other similar charges now existing or hereafter imposed,
based upon the privilege of leasing the space leased hereunder or based upon the
amount of rent collected therefor.
(4) Additional Rent for the final months of this Lease
is due and payable even though it may not be calculated until subsequent to the
Expiration Date of this Lease.
(5) Tenant hereby agrees that the Base Rent and the
Additional Rent from time to time computed by Landlord shall be final and
binding for all purposes of this Lease unless, within thirty-five (35) days
after Landlord
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provides Tenant with written notice of the amount thereof, Tenant provides
Landlord with written notice disputing the accuracy of such Base Rent and/or
Additional Rent amounts ("Disputed Amounts"). Tenant shall have a period of
thirty (30) days after receipt of notice given by Landlord of the amount of any
revised amount of Base Rent and of any amount of Additional Rent to review
Landlord's books and records relating to the calculation thereof, including all
invoices and projections which may be used in the calculation of Common Area
Maintenance charges. Landlord shall provide access to such books and records
during normal business hours and if Landlord fails to allow such access, then
the time period for Tenant to dispute such amounts shall be extended by the
number of days that Landlord failed to allow access. The Disputed Amount shall
not be subject to adjustment unless the Disputed Amount is demonstrated to be in
error by an amount in excess of five percent (5%) of the Disputed Amount.
Landlord hereby agrees, in the event it receives such notice from Tenant, to
cooperate in promptly completing such review and promptly refunding any excess
portion of the Disputed Amount so long as such excess portion exceeds five
percent (5%) of the Disputed Amount. In the event the Disputed Amount is not in
error by more than five percent (5%) as set forth above, Tenant shall pay, as
Additional Rent hereunder, all of the Landlord's costs and expenses in
connection with such review, including attorneys' fees and accountants' fees. In
the event the Disputed Amount is determined to be in error by more than five
percent (5%), then Tenant shall have the right to offset against the next
payable Rent all of the Tenant's costs and expenses in connection with such
review, including attorneys' fees and accountants' fees.
4. EXTENSION OPTIONS:
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A. Extension Option. Provided that Tenant is not in
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default under any of the terms and conditions of this Lease on the date of
exercise and on the date of delivery of possession, Tenant shall have three (3)
options (the "First Extension Option," the "Second Extension Option," and the
"Third Extension Option," respectively) to extend this Lease (which shall
include, the entire Premises) for additional terms of three (3) years (the
"First Extension Term," the "Second Extension Term," and the "Third Extension
Term", respectively), with each of the Extension Terms commencing immediately
upon the expiration of the Lease Term, or the immediately preceding Extension
Term, if at all.
B. Exercise of Extension Option. Provided Tenant is
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eligible and permitted to exercise the Option, Tenant may exercise such
Extension Options by notifying Landlord in writing no later than six (6) months
prior to the expiration of the applicable Term, the parties hereby agreeing that
time is of the essence with respect to such notice. If Tenant does not timely
give such notice to Landlord as here provided, then the Lease shall terminate
at the end of the extant Term and the option to extend for any unexercised
Extension Terms shall be deemed terminated.
C. Terms of Extension Option. In the event Tenant
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exercises any Extension Option, all of the terms of this Lease shall continue
to be applicable to such Extension Term and/or Terms, including the terms
pertaining to the calculation of Base Rent and Additional Rent, except as
otherwise provided in this Lease.
5. USE.
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A. Permitted Use of the Premises. Tenant will undertake
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construction of the Tenant Improvements and may use and occupy the Premises for
any lawful purpose permitted under the laws of the Village of Pinecrest, Florida
and Miami-Dade County, Florida, provided that such use or uses do not exceed the
parking limits placed upon Suniland Center by those governmental authorities for
the existing parking spaces and any additional parking spaces approved and
expected to be completed by the time Tenant expects to open for business within
the Premises (hereinafter "Parking Limits"). Tenant will not commit waste upon
the Premises and/or Premises Building nor suffer or permit the Premises and/or
Premises Building or any part of them to be used in any manner, or suffer or
permit anything to be done in or brought into or kept in the Premises and/or
Premises Building or Suniland Center, or the common area thereof, or operate
Tenant's business at the Premises and/or Premises Building in a manner which
would: (i) violate any law or requirement of public authorities, (ii) cause
injury to Suniland Center or any part thereof, (iii) materially annoy or offend
other tenants or their patrons or interfere with the normal operations of
Suniland Center or plumbing or the ingress and egress to Suniland Center or the
parking areas serving Suniland Center, (iv) constitute a public or private
nuisance, or (v) alter the appearance of the exterior of Suniland Center or the
Premises and/or the Premises Building or of any portion of the parking areas,
other than as permitted in the construction of the Tenant Improvements at the
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Premises and/or Premises Building, pursuant to the provisions of this Lease.
Tenant agrees and acknowledges that Tenant shall be responsible for obtaining
any governmental permits, authorizations or consents required solely on account
of Tenant's construction of the Tenant Improvements and use of the Premises
and/or Premises Building.
B. Continuous Use. It shall be a default under this
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Lease if Tenant shall fail to continuously occupy the Premises as provided in
Section 5A, above, for a period equal to or greater than 60 business days during
any two consecutive Lease Years.
6. PRIOR OPTION PAYMENTS. The parties acknowledge that pursuant
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to the original Lease, Tenant paid to Landlord option payments totaling $25,000,
which the parties agree constitute full and complete payment for all obligations
of Tenant due and owing between the execution date of the original Lease and
September 14, 1998.
7. PARKING: Tenant shall be entitled to use, in common with other
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tenants, business invitees, vendors, customers and other visitors to Suniland
Center, the parking areas located at Suniland Center. The twenty (20) parking
spaces located most adjacent to the Premises shall be designated as being
available for use by business invitees, vendors, customers, and other visitors
to the Premises. The foregoing notwithstanding, the Landlord reserves the right
to designate employee parking areas and, upon such designation and notice
thereof to Tenant, Tenant shall instruct its employees to park only in such
designated parking areas.
8. SIGNS: Tenant shall have no right to install signs in, on or
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about the Premises and/or Premises Building without the express prior written
consent of the Landlord, which consent shall not be unreasonably withheld.
Notwithstanding the preceding, as a part of the initial Tenant improvements,
Tenant shall have the right to install a sign on the Premises Building. All
signs approved by the Landlord shall be installed, maintained and repaired at
Tenant's sole cost and expense and shall generally conform to Landlord's
requirements for Suniland Center. Landlord may remove any non-conforming signs
at Tenant"s expense. Tenant shall acquire, maintain and pay for all permits and
approvals necessary or appropriate for the installation and maintenance of such
signs.
9. INITIAL DEMOLITION: UTILITIES. REPAIRS AND MAINTENANCE:
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A. "As-Is" Condition of Premises. Prior to turning over
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possession of the Premises to Tenant for the construction of Tenant's
improvements, Landlord shall demolish certain specified interior improvements
currently existing within the Premises Building (pursuant to demolition
specifications to be agreed upon by the parties within fourteen days of
execution of this Lease by both parties), shall make the Premises Building
structurally sound and water- tight and shall cause electrical, water and
sewerage/septic service lines to be brought to the perimeter of the Premises,
all in accordance with applicable law and codes. Landlord also shall cause any
Hazardous Materials, as defined in paragraph 19, to be removed or encapsulated,
as required by law or code. Upon receipt of notification given by Landlord that
the Premises Building is ready for the commencement of Tenant's construction,
the Tenant shall have five (5) business days to cause the Premises to be
inspected for structural soundness, water-tight condition, availability of
utilities, environmental compliance and compliance with laws and code. Tenant
shall notify Landlord of any deficiencies therein, which landlord shall correct
promptly. If Landlord shall fail to do so, Tenant may: (i) terminate the Lease;
or (ii)undertake to correct the condition complained of and to deduct the cost
thereof from the next required payment(s) of Rent. After acceptance of the
Premises by Tenant, Tenant hereby confirms and agrees that it will be taking the
Premises in its "as-is; where-is" condition.
B. Tenant's Obligation to Repair and Maintain. After
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completion of Tenant's improvements as described in paragraph 10, and thereafter
throughout the Lease Tenn, Tenant, at its sole cost and expense shall take good
care of the Premises and shall keep the same in good order and condition, except
for reasonable wear and tear, and make all necessary repairs thereto, ordinary
and extraordinary, and foreseen and unforeseen, except for structural and roof
repairs, which shall be the responsibility of the Landlord. All renovations and
repairs made by Tenant shall be done in a workmanlike manner and all
construction materials shall be of first quality. Tenant shall keep and maintain
all portions of the Premises in a clean and orderly condition, free of dirt,
rubbish, and unlawful conditions.
C. Utilities. Landlord shall not be required to furnish
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to Tenant any utilities or services of any
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kind during the Lease Term. Tenant shall arrange and pay for all utility
services to the Premises, including water, hot water, electricity, light and
power. All such services shall be separately metered. Tenant shall, at its cost
and expense, arrange for the installation of meters for all utility service
which can be separately metered and shall maintain same. In the event any
utilities or services to the Premises need to be increased or expanded or
modified, Tenant shall pay for all costs and expenses related to such expansion,
modification or other alterations and the cost and expense of any permits,
approvals or consents therefor.
D. Delivery of Premises to Landlord. At the expiration
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of the Lease Term, or any Extension Term, Tenant shall deliver the Premises to
Landlord in good condition, reasonable wear and tear, loss by fire or other
unavoidable casualty excepted.
10. TENANT'S IMPROVEMENTS:
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A. Construction of the Tenant Improvements. Tenant
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shall, at least 45 days prior to the date Tenant expects to begin construction,
provide to Landlord, for Landlord's written approval, which shall not be
unreasonably withheld or delayed, plans and specifications or detailed
schematics, as may be necessary to commence and complete any portion of the
Tenant Improvements to be made to the exterior of the Premises Building and
showing the proposed Tenant Improvements to the interior of the Premises
Building such plans and specifications or schematics to be sufficiently detailed
so that Landlord can assess the nature and quality of the Tenant Improvements
(the "Plans"). Landlord shall, within 5 business days of receipt of the Plans,
notify Tenant in writing of its approval or disapproval. In the event that
Landlord disapproves of any aspect of the Plans, it shall provide Tenant with a
statement of such objections. Tenant shall have 14 days to submit revised Plans.
Landlord's failure to timely provide a written response to the Plans shall be
deemed an approval of same. Tenant shall obtain, and maintain in good standing,
all necessary site plan improvements and approvals, building permits, and other
governmental authority approvals and permits required to commence and complete
all of the Tenant Improvements, and shall send copies of such, specifically of
any late changes to plans to Landlord for approval, as soon as practicable,
prior to commencing work on the Premises and/or Premises Building. Upon the
occurrence of an Event of Default, any and all plans, and any modifications
thereto and all approvals, permits and other governmental authority approvals
and permits required to complete the Tenant Improvements, shall immediately
become and sole and exclusive property of Landlord. Tenant, promptly after
Landlord's and governmental approval of the final Plans, shall undertake and
complete, at its sole cost and expense, the construction of the Tenant
Improvements. Tenant agrees that it shall not, in the construction and
completion of the Tenant Improvements, (i) create a nuisance, (ii) conduct
construction activities or store machinery or equipment in such a way as to
either reduce parking at Suniland Center by more than ten spaces or interfere
with vehicular and/or pedestrian ingress and egress to Suniland Center; or (iii)
interfere with the normal day-to-day operations of Suniland Center or the uses
by other tenants of their respective premises at Suniland Center. Tenant further
agrees it shall commence and complete the construction of the Tenant
Improvements expeditiously and in a good and workmanlike fashion, employing
licensed Florida contractors, and otherwise in accordance with all laws,
regulations and legal requirements applicable to such construction, including
but not limited to the Americans With Disabilities Act of 1990 and all
amendments and modifications thereto. Prior to commencement of construction,
Tenant shall obtain and post a notice of commencement substantially in
compliance with Florida Statutes 713.
B. Structural Changes Prohibited. Notwithstanding any
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other term or provision herein, Tenant shall have no right, at any time to make
any structural changes to the Premises and/or Premises Building to increase or
decrease the height or the footprint of the Premises Building without the
express prior written consent of Landlord, which can be unreasonably withheld.
C. No Lien on Premises. Tenant may select its own
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contractors to perform the Tenant Improvements and any subsequent permitted
alterations to the Premises and/or Premises Building provided such contractors
are licensed by Miami-Dade County or the State of Florida. Tenant shall not have
any authority to create any liens for labor or material on or against the
Landlord's interest in the Premises and/or Premises Building or Suniland Center,
and the existence of any lien of any nature not discharged within thirty (30)
days after Tenant's receipt of notice thereof shall be a breach of this Lease.
All persons contracting with Tenant for the destruction or the removal of any
building or for the erection, installation, alteration, or repair of any
building or other Improvements in, on or to the
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Premises and/or Premises Building, and all materialmen, contractors,
subcontractors, sub-subcontractors, mechanics, and laborers are hereby charged
with notice that they must look solely and only to the Tenant's interests in the
Premises and/or Premises Building to ensure the payment of any xxxx for work
done or material furnished during the rental period created by this Lease and
specifically not to the Landlord or the Landlord's interest. Tenant agrees that
it will include the language in this section in any contract or agreement for
any Work done by Tenant in or on the Premises and/or Premises Building.
D. Alterations. Upon completion of the Tenant
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Improvements, and for the balance of the Lease Term, Tenant will make no
alterations, additions or improvements in or to the Premises and/or Premises
Building, of any kind or nature, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Should Landlord
consent to any proposed alterations by Tenant, such consent will be
conditioned upon continued compliance with the insurance provisions of Section
13 of this Lease. As stated herein, all alterations made hereunder will become
Landlord's property when incorporated into or affixed to the Premises and or
Premises Building. In the event Tenant shall, at the termination of the Lease
Term, remove specialized fixtures such as a bank vault which results in any
portion of the Premises being in an unfinished condition, Tenant shall restore
that portion of the Premises to a condition similar to the finished condition of
the remainder of the Premises.
E. Indemnity and Hold Harmless. Tenant shall indemnify
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Landlord and hold it harmless from and against all claims, liens, and costs
incurred an account of a claim or potential liability arising, caused by or in
connection with the Tenant Improvements or any subsequent alteration to the
Premises and/or Premises Building, and any reasonable out-of-pocket fees
incurred for review of the Plans and the drawings. In connection with the Tenant
Improvements and any subsequent alterations to the Premises and/or Premises
Building, Tenant shall carry and shall cause its contractors and subcontractors
to carry, during the course of any such work, worker's compensation insurance
and comprehensive general liability insurance, including coverage for completed
operations, broad-form liability and all-risk perils for personal property in
the amounts specified in Section 13 hereof. Tenant shall submit to Landlord a
certificate evidencing the existence of said policies of insurance prior to the
commencement of the work. The provisions of this Paragraph 10E are in addition
to and not in derogation of the insurance and indemnity provisions contained in
Paragraphs 13, 18, and 19 hereof. The provisions of this Paragraph 10E shall
survive the expiration or earlier termination of this Lease.
11. LANDLORD'S ADDITIONS AND ALTERATIONS: Landlord has the right
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to make Changes in and about Suniland Center and parking areas in Suniland
Center. Such changes may include, but not be limited to, rehabilitation,
redecoration, refurbishment and refixturing of the exterior of the Premises
building, Suniland Center and expansion of or structural changes to Suniland
Center. Landlord has disclosed to Tenant, and Tenant acknowledges having
received same, Landlord's present, but not final, site plan to at some future
time construct additional building(s) in Suniland Center. The right of Tenant to
quiet enjoyment and peaceful possession given under this Lease will not be
deemed breached or interfered with by reason of Landlord's actions pursuant to
this section so long as such actions do not materially deprive Tenant of its
use and enjoyment of the Premises and/or Premises Building. Landlord agrees that
it shall not, in the construction and completion of any such additions,
(i) create a nuisance, (ii) conduct construction activities or store machinery
or equipment in such a way as to either reduce parking at Suniland Center by
more than ten spaces or interfere with vehicular and/or pedestrian ingress and
egress to Suniland Center; or (iii) interfere with the normal day-to-day
operations of Suniland Center or the uses by other tenants of their respective
premises at Suniland Center.
12. ASSIGNMENT AND SUBLETTING: Tenant agrees not to assign,
-------------------------
mortgage, hypothecate, pledge or encumber this Lease, or any part thereof,
without Landlord's prior written consent, which shall not be unreasonably
withheld or delayed. Assignment of this Lease will not relieve Tenant of
its obligations or liabilities under this Lease. If Tenant is then an entity,
other than a corporation whose shares are traded on a nationally recognized
stock exchange, any change to the structure of such entity or any disposition(s)
of any of the interests therein will be treated as a prohibited assignment of
this Lease requiring Tenant to obtain Landlord's prior written consent.
Notwithstanding the preceding, in the event that (x) Tenant or the operation of
Tenant's banking business shall be taken over by any bank supervisory authority,
including but not limited to the Resolution Trust Corporation, the Federal
Deposit Insurance Corporation, the Comptroller of the State of Florida, or any
of their respective successors (collectively the "Bank
7
Supervisory Authority") and the Bank Supervisory Authority selects a successor
banking institution to take over the Tenant's Lease, or (y) in the event Tenant
is merged into or consolidated with or sold to another banking institution, then
this Lease way be assigned to the successor banking institution provided such
successor banking institution agrees to all of the terms and provisions of this
Lease and also provided that all defaults then occurring and not previously
cured shall be cured by such successor banking institution. For purposes of this
Lease, the term "Banking Institution" shall mean a bank, a savings and loan
association, a credit union, or similar financial institution. Tenant shall have
the unrestricted right to sublease the western thirty-six (36) feet of the
Premises or any portion thereof provided, however, Tenant may not sublease any
portion of the Premises to a sublessee for any use which would violate the terms
of a non-competition provision contained in the lease of any other tenant in
Suniland of which Tenant has been notified or for any use which would violate
the Parking Limits.
13. INDEMNITY AND INSURANCE:
-----------------------
A. Tenant's Indemnity. To the maximum extent permissible
------------------
by law, Tenant agrees to indemnify and save harmless Landlord and its partners,
agents, and employees from and against all claims of whatever nature arising
from: (a) the conduct or management of the Premises or any business thereon
and/or therein, (b) any work or thing whatsoever done, or any condition created
(other than by Landlord, its employees, agents or contractors) in or about the
Premises and/or Premises Building, and (c) any negligent or otherwise wrongful
act or omission by Tenant or any of its subtenants, licensees or invitees or its
or their employees, agents or contractors, whether resulting in injury or death
to persons or damage to property or otherwise. The foregoing indemnity and hold
harmless agreement shall include all costs, expenses and liabilities (including,
without limitation, reasonable attorneys' fees at all levels of court and
disbursements) incurred by Landlord, its partners, agents, and employees in or
in connection with any such claim or any action or proceeding brought thereon,
and the defense thereof. In case any action or proceeding shall be brought
against Landlord, its partners, agents, or employees by reason of any such
claim, Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding on behalf of Landlord, its partners, agents, or employees, by counsel
for the insurer (if such claim is covered by insurance) or otherwise by counsel
selected by Tenant and reasonably acceptable to Landlord. In no event shall
Tenant be obligated to indemnify or save harmless Landlord or its partners,
agents, or employees from or in respect of any claim or matter which results
from the negligence or otherwise wrongful act or omission of such party. The
provisions of this Paragraph 13 shall survive the expiration or earlier
termination of this lease.
B. Tenant's Insurance Requirements. Tenant agrees that,
-------------------------------
at all times during the Lease Term and any Extension Terms (as well as prior
and subsequent thereto if Tenant or any of Tenant's Agents should then use or
occupy any portion of the Premises), it will keep in force, with an insurance
company licensed to do business in the State of Florida, and reasonably
acceptable to Landlord:
(1) Insurance against liability, for bodily and
personal injury, death, and property damage, it being agreed that such insurance
shall be at least in the limits set forth below, with deductible of not more
than Five Thousand Dollars ($5,000.00).Such liability insurance coverage shall
be written on a comprehensive general public liability form (including, without
limitation, motor vehicle liability for all owned, non-owned and hired and
property damage coverage), and containing the so-called "occurrence clause,"
covering specifically all occurrences in, on or about the Premises and such
insurance policies shall contain an agreement by the insurer to indemnify and
hold Landlord and Tenant harmless from and against all cost, attorneys' fee at
all levels of court, expense and/or liability arising out of or based upon any
and all claims, accidents, injuries and damages in the indemnity provisions
contained in this Lease. The limits of insurance against liability for bodily
and personal injury and death shall be not less than One Million Dollars
($1,000,000) for any single occurrence for injury (or death) and damage to
property,
(2) Insurance on an "all risk or "physical loss"
basis covering the Premises including, without limitation, fire insurance and
insurance against loss or damage by lighting, windstorm, tornado, hail,
explosion, sprinkler leakage, vandalism, malicious mischief, and other hazards
of whatsoever kind now or hereafter covered by the usual "all risk" policy. All
such insurance shall be carried and maintained in an amount sufficient to
prevent Tenant from becoming a co-insurer under the provisions of any applicable
policies of insurance, but in any event in an amount not less than one hundred
percent (100%) of the full replacement value of the Premises without deduction
for depreciation
8
(including the cost of debris removal, but excluding the cost of excavations,
footings, and foundations).
(3) Insurance against loss or damage to the
Premises caused by flood, if the premises or any part thereof, are located in an
area identified by the Secretary of Housing and Urban Development, or any
successor thereto, as an area having special flood hazards and in which
insurance has been made available and to the maximum extent under the National
Flood Insurance Act, as amended.
(4) Worker's compensation and employer's
liability insurance if required by statute, with not less than the maximum
statutory limits of coverage.
C. Delivery of Policies; Renewals. The insurance
------------------------------
coverages to be provided by Tenant will be for a term of not less than one
year. At least fifteen (15) days prior to the Lease Commencement Date, Tenant
will deliver to Landlord original policies required by Section 10 and 13 of this
Lease, together with proof of payment thereof; thereafter, at least fifteen (15)
days prior to the expiration of any policy, Tenant will deliver to Landlord such
original certificates as will evidence a paid-up renewal or new policy to take
the place of the one expiring. Such policies shall at all times be written by
one or more responsible insurance companies rated Best A+ or better (or such
other companies as are acceptable to Landlord) and licensed to do business in
the State of Florida, in form reasonably acceptable to Landlord, and naming
Landlord, Landlord's beneficiaries, agents and employees as additional insureds,
and naming Landlord as the certificate holder. Such policies shall contain an
agreement whereby the insurer agrees that such policy may not be canceled
without at least 30 days prior written notice to Landlord and Tenant, and shall
further provide (i) that no act or omission of Tenant shall affect or limit the
obligations of the insurance company to pay the amount of any loss sustained,
(ii) include Landlord and such other parties as Landlord may reasonably
designate as additional insureds, (iii) be considered primary insurance, and
(iv) include within the terms of the policy or by contractual liability
endorsement coverage insuring Tenant's indemnity obligations under any
provisions contained in Sections 10, 18 and 19 hereof.
D. Tenant's Use. Tenant will not do or permit anything
------------
to be done upon or bring or keep or permit anything to be brought or kept upon
the Premises, Premises Building, and/or Suniland Center which will cause a
reduction or loss of insurance coverage.
14. SUBROGATION:
-----------
A. Each party will look first to any insurance its favor
before making any claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such insurance is
in force and to the extent permitted by Law, Tenant hereby waives and releases
all rights of subrogation under Tenant's insurance policies discussed in
Sections 10 and 13 or in any other part of this Lease, and Tenant will
diligently attempt to cause each such insurance policy to be properly endorsed
to evidence such waiver and release of subrogation in favor of Landlord,
provided however that failure to effect such endorsement shall not be an event
of default hereunder.
B. Tenant acknowledges that Landlord will not carry
insurance on the on the Tenant Improvements, furniture, furnishings, trade
fixtures, equipment installed in or made to the Premises by or for Tenant, and
Tenant agrees that Tenant, and not Landlord, will be obligated to promptly
repair any damage thereto or replace the same.
15. DAMAGE OR DESTRUCTION BY CASUALTY. In the event that the
---------------------------------
Premises and/or the Tenant Improvements at the Promises and/or the Premises
Building are damaged or destroyed by fire, windstorm or other casualty, such
that the damage constitutes fifty percent (50%) or greater loss, then either
party hereto may terminate this Lease. In the event such loss shall constitute
less than a fifty percent (50%) loss, then the Landlord shall reconstruct the
Premises Building within ninety (90) days after receipt of insurance proceeds
therefor (or within ninety (90) days of the occurrence of the damage if Landlord
shall be self insured) and Tenant shall have a period of ninety (90) days after
delivery of the reconstructed Premises Building to reconstruct the Tenant
Improvements. All Rent hereunder shall be abated until Tenant's Improvements are
reconstructed. In the event that reconstruction is delayed due to any acceptable
force majeure, Tenant agrees that it shall forthwith clear any rubble or other
destroyed or demolished Tenant
9
Improvements and maintain the Premises in a clean and safe fashion.
16. CONDEMNATION AND EMINENT DOMAIN:
-------------------------------
A. If all or a substantial part of the Premises and/or
the Premises Building are taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain or by
purchase in lieu thereof, and the taking would prevent or materially interfere
with the use of the Premises and/or the Premises Building for the purpose for
which they are then being used, this Lease will terminate and the Rent and
Additional Rent will be abated during the unexpired portion of the Lease
effective on the date physical possession is taken by the condemning authority.
Tenant will have no claim to the condemnation award, except for the value of the
Tenant Improvements, which shall be brought in a separate action by Tenant, at
Tenant's sole cost and expense.
B. In the event a portion of the Premises and/or the
Premises Building is taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain or by
purchase in lieu thereof, and this Lease is not terminated as provided in
Section 16.A above, Landlord may, at Landlord's expense, restore the Premises
and/or the Premises Building to the extent necessary to make them reasonably
tenantable. The Rent and Additional Rent payable under this Lease during the
unexpired portion of the Lease Term shall be adjusted to such an extent as way
be fair and reasonable under the circumstances. Tenant shall have no claim to
the condemnation award with respect to the leasehold estate but, in a
subsequent, separate proceeding, may make a separate claim for the Tenant
Improvements, trade fixtures and other personal property installed at the
Premises by and at the expense of Tenant and Tenant's moving expense. In no
event will Tenant have any claim for the value of the unexpired Lease Term.
C. Notwithstanding the foregoing, even if the Premises
and/or the Premises Building are not affected in whole or in party by a taking,
Landlord will have the right but not the obligation to terminate this Lease upon
one hundred twenty (120) days prior written notice to Tenant if more than fifty
percent (50%) of the land area of Suniland Center is taken by condemnation or
eminent domain proceedings. Upon any such termination, Landlord and Tenant will
each be released from all further liability under this Lease.
17. LIMITATION OF LANDLORD'S LIABILITY: INDEMNIFICATION:
---------------------------------------------------
A. All Tenant Improvements and/or personal property
placed or moved onto the Premises and/or Premises Budding will be at the sole
risk of Tenant or other owner. Landlord will not be liable to Tenant or others
for any damage to person or property arising from theft, vandalism, any act or
omission of any co-tenant or occupant of Suniland Center or of any other person,
or otherwise, unless caused by the act or omission of Landlord or any of
Landlord's agents or employees.
B. Notwithstanding any contrary provision of this Lease:
(i) Tenant will look solely (to the extent insurance coverage is not applicable
or available) to the interest of Landlord (or its successor as Landlord
hereunder) in the Suniland Center for the satisfaction of any judgment or other
judicial process requiring the payment of money as a result of any negligence or
breach of this Lease by Landlord or its successor or of Landlord's managing
agent (including any beneficial owners, partners, corporations and/or others
affiliated or in any way related to Landlord or such successor or managing
agent) and Landlord has no personal liability hereunder of any kind, and (ii)
Tenant's sole right and remedy in any action or proceeding concerning Landlord's
reasonableness (where the same is required under this Lease) will be an action
for declaratory judgment and/or specific performance.
C. Each party agrees to indemnify, defend and hold
harmless the other party and their respective agents from and against all
claims, causes of actions, liabilities, judgments, damages, losses, costs and
expenses, including reasonable attorneys' fees and costs through all appeals,
incurred or suffered by the indemnified party and arising from or in any way
connected with the Premises and/or Premises Building or the use thereof and
caused by any acts, omissions, neglect or fault of the indemnifying party or
its agents, including, but not limited to, any breach of this Lease or any
death, personal injury or property damage occurring in or about the Premises
and/or Premises Building or Suniland Center.
10
18. LAWS AND PROCEDURES:
-------------------
A. Tenant will promptly comply with all applicable laws,
guidelines, rules, regulations and requirements, whether of federal, state, or
local origin, applicable to the Premises, Premises Building and Suniland Center
(the "Legal Requirements"), including, but not limited to the Parking Limits and
those for the correction, prevention and abatement of nuisance, unsafe
conditions, or other grievances arising from or pertaining to the use of
occupancy of the Premises and/or Premises Building (including but not limited to
Environmental Laws as hereafter defined) and those pertaining to the operation
and use of the Premises and/or Premises Building (including but not limited to,
the Americans With Disabilities Act of 1990, and all amendments thereto). Tenant
shall not do or permit any act or thing to be done in or to the Premises and/or
Premises Building which will conflict with (i) public liability, fire, extended
coverage and other policies of insurance carried by or for the benefit of
Landlord or the Premises and/or Premises Building or which subjects Landlord to
any liability or responsibility for damages of any kind to persons or property
or which subjects the Premises and/or Premises Building to forfeiture.
B. In accordance with Florida Law, the following
disclosure is hereby made:
RADON GAS: Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in
sufficient quantities, may present health risk to
persons who are exposed to it over time. Levels of
radon that exceed Federal and State Guidelines have
been found in buildings in Florida. Additional
information regarding radon and radon testing may be
obtained from your county public health unit.
19. ENVIRONMENTAL COMPLIANCE:
-------------------------
A. Tenant hereby covenants and agrees that, following
delivery of the Premises to Tenant in a condition free of Hazardous Materials
(as hereafter defined) Tenant shall keep or cause the Premises free of Hazardous
Materials (as hereafter defined). Without limiting the foregoing, Tenant shall
not cause or permit the Premises to be used to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce or process Hazardous
Materials, except in compliance with all applicable federal, state and local
laws or regulations, nor shall the Tenant cause or permit, as a result of any
intentional or unintentional act or omission on the part of the Tenant, a
release of Hazardous Materials onto the Premises or onto any other property, and
Tenant shall not use any Hazardous Materials in any manner which violates
federal, state or local laws, ordinances, rules, regulations or policies
governing the use, storage, treatment, transportation, manufacture, refinement,
handling, production, or disposal of Hazardous Materials. For purposes of this
Lease, "Hazardous Materials" includes, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (42 U.S.C. Sections 1801, et seq.), the Resource Conversation and
Recovery Act of 1976, as amended (42 U.S.C. Sections 2901, et seq.), and in the
regulations adopted and publications promulgated pursuant thereto, or any other
federal, state or local environmental laws, ordinances, rules or regulations.
For purposes of this Section, the term "Tenant" shall mean Tenant, any officer,
director, shareholder, employee, representative or agent of the Tenant or any
subtenant of Tenant.
B. Tenant shall notify Landlord immediately upon receipt
of any summons, citation, directive, letter or other communication, written or
oral, from any agents, whether local, state or federal concerning (i)
intentional or unintentional action or omission which has resulted in the
releasing, spilling, leaking, pumping, pouring, admitting, emptying or dumping
of Hazardous Materials into any water or land at the Premises and/or Premises
Building.
11
C. At Landlord's request, Tenant shall perform or cause
to be performed such inspections, tests or studies as are, in Landlord's
reasonable estimate, necessary to determine whether or not Hazardous Substances
are located on or affecting the Premises and/or the Premises Building. If no
significant levels of such Hazardous Materials are found by reason of such
inspections, tests or studies, Landlord shall bear the full cost thereof. If
such levels of Hazardous Materials are discovered such that a remediation
thereof is required, then the cost of the inspections, tests or studies shall be
borne by Tenant.
D. If Tenant shall fail or refuse to perform the
inspections, tests or studies requested by Landlord in subparagraph C, then
Landlord shall have the right, on reasonable notice during normal business
hours, to enter the Premises for the purposes of making or undertaking any
investigation, environmental study, sampling, remediation, clean- up or other
action necessary or appropriate in connection with Hazardous Materials and
satisfaction of Tenant's obligations therein.
20. RIGHT OF ENTRY. Landlord and Landlord's agents and designees
--------------
shall have the right (but not the obligation) to enter upon the Premises, at any
time during an emergency (but Landlord shall, if reasonably possible, endeavor
to give Tenant's manager, executive vice president or president telephonic
notice thereof.) In other cases not involving an emergency, Landlord and
Landlord's agents and designees shall have the right to (i) enter the Premises
Building only during Tenant's business hours, on 3 days notice to Tenant and
upon receipt of oral authorization from the manager, the executive vice
president or the president of Tenant (which authorization shall not be
unreasonably denied) for purposes of examining same and/or making such repairs,
replacements, improvements, tests, studies and examinations as Landlord deems
reasonably necessary or desirable provided that at all times Landlord shall use
reasonable efforts to minimize its interference with Tenant's business operation
(but in no event shall Landlord be required to use overtime labor or services
unless Tenant agrees to and does pay for same) and shall use such precautions
and care as is reasonably required given the nature of Tenant's business and the
Tenant's regulatory requirements. Without limiting the generality of the
foregoing, Tenant shall permit Landlord to undertake environmental studies,
maintain well or other water sampling devices, install and maintain additional
pipes, ducts and conduits in and through the Premises and/or Premises Building
(provided such pipes, ducts and conduits are installed adjacent to or concealed
behind wall and ceiling) and are installed by such methods and at such locations
as will not unreasonably interfere with Tenant's use of the Premises and/or
Premises Building. Landlord or its agents will have the right to exhibit the
Premises during business hours to prospective tenants within ninety days (90)
before the Expiration Date of this Lease or any applicable Extension Terms.
21. DEFAULT:
-------
A. Events of Default. If: (1) Tenant vacates or abandons
-----------------
the Premises prior to the Expiration Date in contravention of the terms and
provisions of this Lease; or (2) Tenant fails to fulfill any of the terms or
conditions of this Lease; (3) any execution or attachment is issued against
Tenant or taken or occupied by someone other than Tenant which is not discharged
within thirty (30) days; or (4) Tenant or any of its successors or assigns or
any guarantor of this Lease ("Guarantor") should file any voluntary petition in
bankruptcy, reorganization or arrangement, or an assignment for the benefit of
creditors, or for similar relief under any present or future statute, law or
regulation relating to relief of debtors; or (5) Tenant or any of its successors
or assigns or any Guarantor should be adjudicated bankrupt or have an
involuntary petition in bankruptcy filed against it; or (6) Tenant shall permit,
allow or suffer to exist any lien, judgment, writ, assessment, charge,
attachment or execution upon Landlord's or Tenant's interest in this Lease or to
the Premises and/or Premises Building, and/or the fixtures, improvements and
furnishings located thereon which is not discharged within thirty (30) days
after Tenant's receipt of notice thereof; then, Tenant shall be in default
hereunder.
B. Tenant's Grace Periods. If: (1) Tenant fails to pay
----------------------
Rent or Additional Rent within fifteen (15) days of the date due; or (2) Tenant
fails to cure any other default within ten (10) days after notice from Landlord
specifying the nature of such default (unless such default is of a nature that
it cannot be completely cured within said ten (10) day period and steps have
been diligently commenced to cure or remedy it within said ten (10) day period
and are thereafter pursued with reasonable diligence and in good faith), then
Landlord shall have such remedies as are provided under this Lease and/or under
the laws of the State of Florida.
12
22. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT:
----------------------------------------
A. Landlord's Options. If Tenant is in default of this
------------------
Lease, Landlord may, at its option, in addition to such other remedies as may be
available under Florida law:
(1) terminate this Lease and Tenant's right of
possession; or
(2) terminate Tenant's right to possession but
not this Lease and/or proceed in accordance with any and all provisions of
Section 22.B below.
B. Landlord's Remedies.
-------------------
(1) All Rent and all Additional Rent for the
balance of the Term will, at the election of Landlord, be accelerated and the
present worth of same for the balance of the Lease Term, net of amounts actually
collected by Landlord, shall become immediately due thereupon and be paid,
together with all expenses of every nature which Landlord may incur such as (by
way of illustration and not limitation) those for attorneys' fees, brokerage,
advertising, and refurbishing the Premises and/or Premises Building in good
order or preparing them for re-rental; and/or at Landlord's option,
(2) Landlord may re-let the Premises and/or
Premises Building or any part thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be less than or
exceed the period which would otherwise have constituted the balance of the
Lease Term, and may grant concessions or free rent or charge a higher rental
than that reserved in this Lease; and/or at Landlord's option, and
(3) Tenant or its legal representative(s) will
also pay to Landlord as liquidated damages any deficiency between the Rent and
all Additional Rent hereby reserved and/or agreed to be paid and the not amount,
if any, of the rents collected on account of the lease or leases of the Premises
and/or Premises Building for each mouth of the period which would otherwise have
constituted the balance of the Lease Term.
23. RIGHT TO PERFORM FOR DEFAULTING PARTY'S ACCOUNT: If either
-----------------------------------------------
party hereto fails to observe or perform any term or condition of this Lease
within the grace period, if any, applicable thereto, then the other party may
immediately or at any time thereafter perform the same for the account of the
non-performing party. If the performing party makes any expenditure or incurs
any obligation for the payment of money in connection with such performance for
the non-performing party's account (including reasonable attorneys' fees and
costs in instituting, prosecuting and/or defending any action or proceeding
through appeal), the sums paid or obligations incurred, with interest at
eighteen percent (18 %) per annum will be paid by the nonperforming party to the
performing party within ten (10) days after rendition of a xxxx or statement
therefor. If Landlord is the non-performing party, Tenant shall have the right
to offset the cost of performing on Landlord's account against the next due
payment(s) of Rent. In the event either party in the performance or
nonperformance of any term or condition of this Lease should cause an emergency
situation to occur or arise within the Premises or the Premises Building or in
Suniland Center, the other party will have all rights set forth in this section
immediately without the necessity of providing the first party any advance
notice.
24. LIENS:
-----
A. In accordance with the applicable provisions of the
Florida Construction Lien Law and specifically Florida Statutes 713. 10, no
interest of Landlord, whether personally or in the Premises and/or the Premises
Building or in the underlying land or the leasehold interest aforesaid, shall be
subject to liens for improvements made by Tenant or caused to be made by Tenant
hereunder. Further, Tenant acknowledges that Tenant, with respect to
improvements or alterations made by Tenant or caused to be made by Tenant
hereunder, shall promptly notify the contractor making such improvements to the
Premises and/or the Premises Building of this provision exculpating Landlord's
liability for such liens.
13
B. Notwithstanding the foregoing, if any mechanic's lien
or other attachment, judgment, execution, writ, charge or encumbrance is filed
against the Premises or the Premises Building or this leasehold, or any
alterations, fixtures or improvements therein or thereto, as a result of any
work action or inaction done by or at the direction of Tenant or any of Tenant's
Agents, Tenant will discharge same of record within thirty (30) days after
Tenant's receipt of notice thereof, failing which Tenant will be in default
under this Lease. In such event, without waiving Tenant's default, Landlord, in
addition to all other available rights and remedies, without further notice, may
discharge the same of record by payment, bonding or otherwise, as Landlord may
elect, and upon request Tenant will reimburse Landlord for all costs and
expenses so incurred by Landlord plus interest thereon at the rate of eighteen
percent (18%) per annum.
25. NOTICES: Any notices required to be given pursuant to this
-------
Lease shall be deemed received upon (i) delivery if sent by United States
Registered Mail or United States Certified Mail, or (ii) delivery and/or
delivery and refusal, and/or return upon second delivery attempt if sent by a
nationally recognized courier service (such as Federal Express or Xxxxx), or
(iii) upon delivery and/or delivery and refusal if sent by hand delivery, or
(iv) delivery, by facsimile, with a hard copy mailed promptly thereafter to the
parties by regular mail, at the following addresses or at such other addresses
as any of the parties may hereafter specify in the same manner:
Landlord: JACKS' SUNILAND CENTER, LTD.
Xxxx Xxxxxxxxxx - Pres. of JACKS' SUNILAND CENTER, INC.
00000 X.X. 000 Xxxxxx
Xxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxx Xxxxxxx - V.P. of JACKS' SUNILAND CENTER, INC.
0000 X.X. 000 Xxxxxx - Xxxxx 000
Xxxxx, XX 00000
Fax: (000) 000-0000
Tenant: FLORIDA SAVINGS BANK
Attention: Xxxxxx X. Xxxxxx, President
0000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esquire
000 Xxxxxxxxxxx Xxxxxx
000 Xxxxxxxx Xxx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
26. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION: Landlord has
---------------------------------------------
the unrestricted right to convey, mortgage and refinance the Premises, or any
part thereof. Tenant agrees, within seven (7) days after notice, to execute and
deliver to Landlord or its mortgagee or designee such instruments as Landlord or
its mortgagee or designee may require, certifying the amount of the Security
Deposit, if any, and whether this Lease is in full force and effect, and listing
any modifications. This estoppel certificate is intended to be for the benefit
of Landlord, any purchaser or mortgagee of Landlord, or any purchaser or
assignee of Landlord's mortgage. The estoppel certificate will also contain such
other information as Landlord or its designee may reasonably request. This Lease
is and at all times will be subject and subordinate to all present and future
mortgages or ground leases which may affect the Premises and/or Premises
Building and/or the parking areas and to all recastings, renewals,
modifications, consolidations, replacements, and extensions of any such
mortgage(s), and to all increases and voluntary and involuntary advances made
thereunder. The foregoing will be self-operative and no further instrument of
subordination will be required. Landlord hereby agrees that upon request of the
Tenant it shall use its best efforts to attempt to obtain and deliver to Tenant
a non-disturbance agreement from the first mortgage holder. Tenant hereby agrees
to give any bolder of any first mortgage on the Premises and/or Premises
Building, by registered or certified mail, a copy of any default notice served
upon Landlord by Tenant
14
provided Tenant has been provided advance written notice of the name and address
of such first mortgage holder. Tenant shall not be required to execute any
document which contains a waiver of any of Tenant's rights under the Lease or
which varies the business terms and conditions of the Lease.
27. ATTORNMENT AND MORTGAGEE'S REQUEST:
----------------------------------
A. If any mortgagee of the Premises and/or Premises
Building comes into possession or ownership of the Premises and/or Premises
Building, or acquires Landlord's interest by foreclosure of the mortgage or
otherwise, upon the mortgagee's request Tenant will attorn to the mortgagee.
B. If a mortgagee of the Premises and/or the Premises
Building requests modifications to this Lease as a condition to disbursing any
monies to be secured by the mortgage, Tenant agrees that within seven (7) days
after request by the mortgagee, Tenant will excuse, acknowledge and deliver to
the mortgagee an agreement, in form and substance satisfactory to the mortgagee,
evidencing such modifications, provided the terms of such an agreement do not
increase Tenant's obligations under this Lease, materially adversely affect the
leasehold interest created by this Lease or constitute a waiver of any of
Tenant's rights under the Lease.
C. Tenant agrees that within seven (7) days after
request by any mortgagee of the Premises and/or Premises Building, Tenant will
execute, acknowledge and deliver to the mortgagee a notice in form and substance
satisfactory to the mortgagee, setting forth such information as the mortgagee
may reasonably require with respect to this Lease and/or the Premises. If for
any reason Tenant does not timely comply with the provisions of this section,
Tenant will be deemed to have confirmed that this Lease is in full force and
effect with no defaults on the part of either party and without any right of
Tenant to offset, deduct or withhold any Rent or Additional Rent.
28. TRANSFER BY LANDLORD: If Landlord's interest in the Premises
--------------------
and/or Premises Building terminates by reason of a bona fide sale or transfer,
Landlord will, upon transfer of the Security Deposit to the new owner, thereupon
be released from all further liability to Tenant under this Lease.
29. SURRENDER OF PREMISES; HOLDING OVER:
-----------------------------------
A. Tenant agrees to surrender the Premises and the
Premises Building to Landlord on the Expiration Date (or sooner termination of
the Lease Term pursuant to other applicable provisions hereof) in as good
condition as they were at the completion of construction of Tenant's
Improvements, ordinary wear and tear, and damage by fire and windstorm excepted.
Tenant may remove any of Tenant's personal property and any special bank
fixtures installed by the Tenant, provided that Tenant shall repair any damage
to the Premises Building caused thereby.
B. Tenant will pay to Landlord, upon request, all
damages that Landlord may suffer on account of Tenant's failure to surrender
possession as and when aforesaid and will indemnify Landlord against all
liabilities, costs and expenses (including all reasonable attorneys' fees and
costs if any) arising out of Tenant's delay in so delivering possession,
including claims of any succeeding tenant.
C. Upon expiration or termination of the Lease Term,
Tenant will not be required to remove from the Premises and the Premises
Building standard items, all of such Premises and the Premises Building standard
items are the property of Landlord. However, should Tenant, prior to the
expiration or termination of the Lease Term or during the Lease Term, install or
cause to be installed fixtures or any tenant improvements in excess of Premises
and the Premises Building standard, Landlord shall have the option of retaining
same or requiring Tenant to remove same. Landlord has no obligation to
compensate Tenant for any items which are required hereunder to remain on or
with the Premises and the Premises Building.
D. Without limiting Landlord's rights and remedies, if
Tenant holds over in possession of the Premises and/or Premises Building without
the Landlord's consent, beyond the end of the Lease Term, or any extended Term,
during the holdover period the Rent will be double the amount of the Rent due
and payable for the last month of the Lease Term or any Extended Term.
15
E. No offer of surrender of the Premises and/or Premises
Building, by delivery to Landlord or its agent of keys to the Premises Building
or otherwise, will be binding on Landlord unless accepted by Landlord, in
writing, specifying the effective surrender of the Premises Building. At the
expiration or termination of the Lease Term, Tenant shall deliver to Landlord
all keys to the Premises Building and make known to Landlord the location and
combinations of all locks, safes and similar items.
30. NO WAIVER; CUMULATIVE REMEDIES: No waiver of any provision of
------------------------------
this Lease by either party will be deemed to imply or constitute a further
waiver by such party of the same or any other provision hereof. The rights and
remedies of the parties under this Lease or otherwise are cumulative and are not
intended to be exclusive and the use of one will not be taken to exclude or
waive the use of another, and the parties will be entitled to pursue all rights
and remedies available to landlords under the laws of the State of Florida.
31. WAIVER OF JURY TRIAL: To the extent permitted by law, the
--------------------
parties hereby waive jury trial in any action or proceeding regarding this
Lease.
32. CONSENTS AND APPROVALS: If Tenant requests Landlord's consent
----------------------
or approval under this Lease, and if in connection with such requests Landlord
deems it necessary to seek the advice of its attorneys, architects and/or other
experts, then Tenant shall pay the reasonable fee of landlord's attorneys,
architects and/or other experts in connection with the consideration of such
request and/or the preparation of any documents pertaining thereto. If Landlord
requests Tenant's consent, approval or acknowledgment concerning any matter
under this Lease, including requests for estoppel, subordination and attornment
documents, and if in connection with such requests Tenant deems it necessary to
seek the advice of its attorneys, architects and/or other experts, then Landlord
shall pay the reasonable fees of Tenant's attorneys, architects and/or other
experts in connection with the consideration of such request and/or the
preparation of any documents pertaining thereto
33. RULES AND REGULATIONS: Tenant agrees to abide by all rules
---------------------
and regulations to be enacted in conjunction with the development and completion
of Suniland Center, and reasonably amended and supplemented from time to time by
Landlord, including the Parking Limits. Landlord will not be liable to Tenant
for violation of the same or any other act or omission by any other tenant. Any
such rules shall not affect: (i) the amount of Rent payable hereunder or the
time for payment; (ii) the term of the Lease or the effect of any options to
extend the Lease Term; (iii) the uses to which the Premises can be put; or (iv)
any other material obligations or rights of the parties under the Lease.
34. SUCCESSOR AND ASSIGNS: This Lease will be binding upon and
---------------------
inure to the benefit of the respective heirs, personal and legal
representatives, successors and permitted assigns of the parties hereto.
35. QUIET ENJOYMENT: In accordance with and subject to the terms
---------------
and provisions of this Lease, Landlord warrants that it has full right to
execute and to perform under this Lease and to grant the estate demised and that
Tenant, upon Tenant's payment of the required Rent and Additional Rent and
performing of all of the terms, conditions, covenants, and agreements contained
in this Lease, shall peaceably and quietly have, hold and enjoy the Premises and
the Premises Building during the full Lease Term.
36. ENTIRE AGREEMENT: This Lease, together with the exhibits,
----------------
schedules, and addenda (as the case may be) fully incorporated into this Lease
by this reference, contains the entire agreement between the parties hereto
regarding the subject matters referenced herein and supersedes all prior oral
and written agreements between them regarding such matters. This Lease may be
modified only by an agreement in writing dated and signed by Landlord and Tenant
on or after the date hereof.
37. BROKERS: The parties agree and that no brokers other than
-------
Xxxx Xxxxxxxxx, (the 'Broker") participated as broker(s) in the negotiation of
this Lease. Each party agrees to indemnify and hold harmless the other from and
against any and all claims, damages, liability and expense, including but not
limited to attorneys' fees, including any appellate proceedings, that may arise
from any claims or demands of any other broker, brokers or finder for any
commission alleged to be due by such in connection with its participating in the
negotiation and execution of this Lease between Landlord and Tenant. Landlord
and Tenant each shall pay, upon execution of this Lease by both parties, fifty
16
percent (50%) of the Broker's commission of Eight Thousand, Two Hundred
Twenty-two Dollars ($8,222) in connection with this transaction.
38. MISCELLANEOUS:
-------------
A. If any term or condition of this Lease or the
application thereof to any person or circumstance is, to any extent, invalid or
unenforceable, the remainder of this Lease, or the application of such term or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, is not to be affected thereby and each term and
condition of this Lease is to be valid and enforceable to the fullest extent
permitted by law. This Lease will be construed in accordance with the laws of
the State of Florida.
B. Submission of this Lease to Tenant does not
constitute an offer, and this Lease becomes effective only upon execution and
delivery, by both Landlord and Tenant.
C. Tenant acknowledges that it has not relied upon any
statement, representation, prior or contemporaneous written or oral promises,
agreements or warranties, except such as are expressed herein.
D. Tenant will pay, before delinquency, all taxes
assessed during the Lease Term against any occupancy interest in the Premises or
personal property of any kind owned by or placed in, upon or about the Premises
and/or Premises Building by Tenant.
E. Neither this Lease nor any memorandum hereof will be
recorded by Tenant.
F. Nothing contained in this Lease should be deemed by
the parties hereto or by any third party to create the relationship of principal
and agent, partnership, joint venturer or any association between landlord and
tenant, it being expressly understood and agreed that neither the method of
computation of Rent nor any other provisions contained in this Lease nor any act
of the parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant.
G. Whenever in this Lease the context allows, the word
"including" will be deemed to mean "including without limitation." The headings
articles, sections or paragraphs are for convenience only and shall not be
relevant for purposes on interpretation of this lease.
H. This Lease does not create, nor will Tenant have, any
express or implied easement for other rights to air, light or view over or about
the Premises and/or Premises Building or any part thereof.
I. Tenant shall construct no improvement or other
installation at the Premises that would interfere with drainage, storm water run
off or other such matters between the Premises and the adjacent Suniland Center
and any parking areas.
J. Any acts to be performed by Landlord under or in
connection with this Lease may be delegated by Landlord to its managing agent or
other authorized person or firm.
K. This Lease shall not be more strictly constructed
against either party hereto by reason of the fact that one party may have
drafted any or all of the terms and provisions hereof. It is acknowledged that
each of the parties hereto has been fully represented by legal counsel and that
each of such legal counsel has contributed substantially to the content of this
Lease.
L. Landlord and Tenant acknowledge that the terms and
provisions of this Lease have been negotiated based upon a variety of factors,
occurring at a coincident point in time, including, but not limited to: (i) the
individual principals involved and the financial strength of Tenant, (ii) the
nature of Tenant's business and use of the Premises and/or Premises, (iii) the
prior relationship between the parties and (iv) the economic conditions
affecting the rental rates. Therefore, recognizing the totality, uniqueness,
complexity and interrelation of the aforementioned factors,
17
the Tenant agrees to use its best efforts not to disseminate in any manner
whatsoever, (whether by word of mouth, mechanical reproduction, physical tender
or by any manner of visual or aural transmission or review) the terms and
conditions of this Lease to third parties who could in any way be considered
presently or in the future as prospective tenants for this or any other
leasehold property with which Landlord may be involved.
M. If more than one entity is named herein Tenant, their
liability hereunder will be joint and several. In case Tenant is a corporation,
Tenant (a) represents and warrants that this Lease has been duly authorized,
executed and delivered by and on behalf of Tenant and constitutes the valid and
binding agreement of Tenant in accordance with the terms hereof, and (b) Tenant
shall deliver the Landlord or its agent, concurrently with the delivery of this
Lease, executed by Tenant, certified resolutions of the board of directors (and
shareholders, if required) authorizing Tenant's execution and delivery of this
Lease and the performance of Tenant's obligations hereunder. In case Tenants is
a partnership, tenant represents and warrants that all of the persons who are
general or managing partners in said partnership have executed this Lease on
behalf of Tenant, or that this Lease has been executed and delivered pursuant to
and in conformity with a valid and effective authorization thereof by all of the
general or managing partnership, and is and constitutes the valid and binding
agreement of the partnership and each and every partner therein in accordance
with its terms. It is agreed that each and every present and future partner in
Tenant shall be and remain at all times jointly and severally liable hereunder
and that neither the death, resignation or withdrawal of any partner, nor the
subsequent modification or waiver of any of the terms and provisions of this
Lease, shall release the liability of such partner under the terms of this Lease
unless and until Landlord shall have consented in writing to such release.
N. Landlord has made no inquiries about and makes no
representation (express or implied) concerning whether Tenant's proposed use of
premises and/or Premises Building is permitted under applicable law, including
zoning law, should tenant's proposed use be prohibited, Tenant shall be
obligated to comply with applicable law and this Lease shall nevertheless remain
in full force and effect.
O. In connection with any dispute involving the
interpretation and enforcement of any provisions of this Lease and/or the
collection of any sums due under this Lease regardless of whether litigation is
commenced, and through all appellate actions and proceedings if litigation is
commenced, the prevailing party shall be entitled to recover its reasonable
attorneys fees and costs.
39. LANDLORD'S ASSIGNMENT OF LEASE: The term "Landlord" as used in
------------------------------
this Lease shall mean JACKS' SUNILAND CENTER, LTD., or any assignee, designed or
successor in interest to the same. In the event of any assignment of Landlord's
interest in the Lease, landlord shall be released and discharged from all
covenants, conditions and agreements of Landlord hereunder accruing with respect
to the Lease from and after the date such assignment, but such covenants,
conditions and agreements shall be in binding on the assignee until there after
further assigned. In addition, Tenant understands and acknowledges that the
Premises/or Premises Building shall be, from time to time, subject to one or
more mortgages, management, operations and easement agreements as Landlord shall
deem necessary or appropriate or which are necessary to effectuate the terms of
this Lease.
18
IN WITNESS WHEREOF, the parties have signed and delivered this
Lease as of the day and year first above written.
Witnesses: "LANDLORD"
----------
JACKS' SUNILAND CENTER, LTD.
JACKS' SUNILAND CENTER, INC. - General Parner
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name Xxxxxx X. Xxxxxx
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
/s/ Xxxxxx X. Xxxxxx Xxxx Xxxxxxxxxx, President
-------------------------------------
Print Name Xxxxxx X. Xxxxxx
By: /s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx, Vice President
"TENANT"
--------
FLORIDA SAVINGS BANK,
a Florida corporation
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx,
its Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name Xxxxxx X. Xxxxxx
19
EXHIBIT A
[DIAGRAM OF FLOOR PLAN]
Exhibit B
---------
Legal Description of the Premises
Leased to Florida Savings Bank and Florida Savings Bancorp
The Southwesterly one hundred seven (107) feet of the Southeasterly one hundred
sixteen (116) feet of Xxx 00X xxx Xxx 00X; and the Southeasterly one hundred
sixteen (116) feet of the Southwesterly one half (1/2) of Lot 22A; the foregoing
being in Block 1 of SUNILAND CENTER THIRD AMENDED PLAT, according to the Plat
thereof, as recorded in Plat Book 77 at Page 24 of the Public Records of
Miami-Dade County, Florida, a/k/a 0000 Xxxxxxxxx 000xx Xxxxxx, Xxxxxxx xx
Xxxxxxxxx, Xxxxxxx. Tax Folio #00-0000-0000.
