EXHIBIT 10.7
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made as of this 6th day of
April, 2004, between 4035 INC., a Florida corporation, the address of which is
000 Xxxx Xxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as
"Lessor"), and POINTE BANK, a Florida banking corporation, the address of which
is 00000 Xxxxxxxxx Xxxx, Xxxx Xxxxx 00000 (hereinafter referred to as "Lessee").
WITNESSETH:
For and in consideration of the rental herein reserved, and of the
covenants, conditions, agreements, and stipulations of Lessee hereinafter
expressed, the parties agree as follows:
1. PREMISES. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, that property commonly known as 000 Xxxx Xxxx Xxxxx Xxxx, Xxxx
Xxxxx, Xxxxxxx 00000, as legally described on Exhibit "A" attached hereto,
together with all buildings and improvements located thereon and all rights
appurtenant thereto (the "Leased Premises").
2. TERM. The term of this Lease (the "Term") shall be for a period of
five (5) years commencing on March 1, 2004 (the "Commencement Date") and
terminating on February 28, 2009. Lessor shall give Lessee exclusive possession
of the Leased Premises thirty (30) days after the date of execution of this
Lease. Lessee shall have the right to extend the Term of this Lease for five (5)
additional terms of one (1) year each (the "Extension Terms" or individually, an
"Extension Term") in its sole discretion upon delivering written notice to
Lessor of its intent to exercise this option to extend not less than sixty (60)
days before the expiration date of the initial Term or any previously exercised
Extension Term of this Lease. All provisions of this Lease shall be applicable
to the Extension Terms.
3. RENTAL. Commencing on the Commencement Date, and continuing on the
same day of each month thereafter during the Term of this Lease, Lessee
covenants and agrees to pay to Lessor, at the address set forth above or at such
other address as Lessor may designate in writing, annual rent for the Leased
Premises, payable monthly in advance (the "Rent"). During the period commencing
on the Commencement Date and continuing through February 28, 2005, the Rent
shall be Six Thousand Dollars ($6,000.00) per month. Commencing March 1, 2005,
the monthly rent shall be equal to and not less than the monthly principal and
interest payment due under that promissory note executed by Lessor and delivered
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to Southern Community Bank ("Lender") in the original principal amount of One
Million Two Hundred Thirty-Two Thousand Dollars ($1,232,000.00) dated November
30, 2003 (the "Note"). Lessor shall provide Lessee with written evidence from
Lender as to the amount of the monthly payment under the Note on or before March
1, 2005, and at any time there is a change in the interest rate under the Note
and, until such evidence is provided, Lessee shall continue to pay monthly
installments of Rent at the rate then in effect. During the Term of this Lease,
notwithstanding anything to the contrary set forth in this paragraph, Rent shall
be calculated only on the non-default interest rate set forth in the Note and
Lessor shall not modify the terms of the Note without the consent of Lessee. At
the request of Lessee, Lessor agrees to refinance the then-existing principal
balance of the Note with a loan to be made by Lessee to Lessor which shall be
secured by a first mortgage on the Leased Premises. Upon the completion of such
refinancing, the monthly payment of Rent shall be equal to and not less than the
monthly principal and interest payment due under the promissory note payable to
Lessee. In addition, any fees or costs required by Lessee to be paid by Lessor
in connection with the refinance shall be amortized over balance of the
remaining Term and shall be reimbursed by Lessee to Lessor on a monthly basis as
additional rent.
The Rent for each Extension Term shall be adjusted to "Fair Market
Rent" prevailing at the commencement of each successive Extension Term. The term
"Fair Market Rent" shall mean the rent that a willing landlord and a willing
tenant would agree to pay for the Leased Premises in an "as is" condition
assuming a one (1) year lease term. Within fifteen (15) days after Lessee
provides notice of its exercise of an extension option to Lessor, Lessor shall
notify Lessee in writing of its determination of Fair Market Rent for the
Extension Term. Lessee shall have a period of fifteen (15) days from its receipt
of Lessor's written notice to object in writing to Lessor's determination of
Fair Market Rent, and in such written objection Lessee shall provide Lessor with
its determination of Fair Market Rent. If, within fifteen (15) days of Lessor's
receipt of Lessee's written notice setting forth Lessee's determination of Fair
Market Rent, Lessor and Lessee are unable to agree upon a Fair Market Rent, then
Lessor and Lessee shall each immediately appoint an appraiser or real estate
agent active in leasing office space in the Boca Raton, Florida area and those
two persons shall immediately appoint a third person with like qualifications.
The aforesaid three appraisers/real estate agents shall make a determination as
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to the Fair Market Rent (the "Determination") and Lessor and Lessee shall split
all costs associated with making the Determination. Once the Determination has
been made, it shall be binding upon Lessor and Lessee, provided, however, Lessee
shall have until thirty (30) days after the Determination has been made to
notify Lessor that the Determination is not satisfactory to Lessee whereupon
this Lease shall terminate thirty (30) days after the date of such notice or
such longer period as may be set forth by Lessee in such notice.
Lessee shall also pay to Lessor, at the same time and in the same
manner as Rent, all sales and use taxes imposed or levied from time to time upon
all payments to be made by Lessee under this Lease.
4. OPERATING COSTS. Commencing on the Commencement Date, in addition to
the Rent, Lessee shall pay to Lessor as additional rent, one hundred percent
(100%) ("Lessee's Share") of all "Operating Costs." For purposes of this Lease,
the term "Operating Costs" shall mean: (i) all reasonable costs and expenses
actually paid or incurred by Lessor in operating, repair and maintaining the
parking areas, driveways, sidewalks, service areas, landscaped areas and other
exterior areas of the Leased Premises (collectively, the "Exterior Areas"),
including the maintenance, repair (exclusive of replacement or repaving) of all
paved areas on the Leased Premises, maintenance of and electrical service for
the Exterior Area lighting facilities, the maintenance of landscaping and trash
removal services, (ii) premiums for liability, property damage, fire and
extended recovery insurance for the Exterior Areas and the Leased Premises
(including the insurance that Lessor is required to maintain under this Lease);
and (iii) general ad valorem real estate taxes and assessments which become due
and payable with respect to the Leased Premises during the Term (prorated for
any partial tax year within the Term). The term "Operating Costs" shall not
include items such as the following: (I) capital expenditures or depreciation;
(ii) the cost of maintaining the foundation, roof and structure of the Leased
Premises; (iii) expenses incurred due to the negligence or willful misconduct of
Lessor or its respective agents, employees or contractors; (iv) interest, late
charges or penalties incurred as a result of Lessor's failure to pay bills
timely; (v) costs to comply with the requirements of any laws, codes or other
governmental regulations; and (vi) taxes imposed on Lessor other than ad valorem
real estate taxes and assessments. Commencing on the Commencement Date, Lessee
shall pay an amount equal to one-twelfth (1/12) of annual estimated Operating
Costs. Within sixty (60) days after the end of each twelve- (12) month period
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subsequent to the Commencement Date, Lessor shall furnish to Lessee a statement
showing actual Operating Costs incurred for the preceding twelve- (12) month
period. If the statement shows that the amounts paid by Lessee under this
section exceed Lessee's payment of Operating Costs, Lessee shall be entitled to
a credit for such excess against payments next to become due to Lessor for
Operating Costs or, upon the expiration of this Lease, Lessor shall refund such
excess to Lessee within thirty (30) days following the expiration or termination
of this Lease. If the statement shows that the amounts paid by Lessee were less
than the amount of Lessee's Share of Operating Costs, Lessee shall pay the
amount of the deficiency within ten (10) days after written request therefor.
5. REAL PROPERTY TAXES. Lessor shall be responsible for payment, prior
to delinquency, of all real property taxes and assessments levied against the
Leased Premises by any governmental or quasi-governmental authority.
6. USE. Lessee shall use the Leased Premises for a commercial banking
office (with an exterior walk-up ATM machine) or any other lawful purpose.
Lessee shall comply with all present and future laws or ordinances applicable to
its use of the Leased Premises and shall not commit or suffer waste on the
Leased Premises, or use or permit anything on the Leased Premises which may be
illegal or constitute a private or public nuisance.
7. REPAIRS AND MAINTENANCE. Lessor shall, at its sole cost and expense
(subject to reimbursement pursuant to paragraph 4 of this Lease), maintain and
make all necessary repairs to the exterior of the Leased Premises, including
parking areas, sidewalks, landscaping, roof, walls, foundation, utility systems
and lines (including plumbing and electrical), HVAC systems, windows, glass,
doors, walls and the fixtures used in connection therewith, which repairs shall
be in quality and class equal to the original work, in order to maintain the
Leased Premises in good condition and repair. Notwithstanding the foregoing,
Lessee shall reimburse Lessor for costs attributable to the repair of the roof
at the Leased Premises up to an amount not to exceed Two Thousand Five Hundred
Dollars ($2,500.00) per year within thirty (30) days after receipt of an invoice
from Lessor accompanied by documentation substantiating the cost and scope of
the roof repair that was performed. If Lessor fails to perform its obligations
of maintenance or repair hereunder, Lessee is authorized to make such repairs
and deduct the reasonable cost of such repairs from the Rent due hereunder.
Lessee, at its sole cost and expense, shall be responsible for any painting and
carpeting within the Leased Premises, for any repairs necessitated by Lessee's
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negligent or intentional acts or omissions and for all maintenance and repair of
the interior of the Leased Premises to the extent same is not Lessor's
responsibility under this Lease. Upon the expiration of the Term of or prior
termination of this Lease, Lessee shall remove all property of Lessee from the
Leased Premises, except leasehold improvements which may have been installed by
Lessee and except as otherwise provided in this Lease, and surrender the Leased
Premises to Lessor "broom clean" in as good order and condition as they were
upon Lessee commencing business, or were placed by Lessee thereafter, ordinary
wear and tear and damage by casualty excepted. Any property left on the Leased
Premises after the expiration of the Term or other termination of this Lease may
be disposed of by Lessor in any manner and without any liability to Lessee.
8. ALTERATIONS. Lessee shall have the right to make interior,
non-structural alterations to the Leased Premises without Lessor's consent and
at Lessee's sole cost and expense. Lessee shall not make any structural
alterations in the Leased Premises without Lessor's prior written consent, which
consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, Lessor and Lessee acknowledge and agree that Lessee intends to remove
the carport which is attached to the northerly building comprising the Leased
Premises, which removal and alteration Lessor hereby consents to.
9. UTILITIES. Lessor shall pay for all electricity, water, sewerage,
fuel and other utilities and services supplied to the Leased Premises during the
Term of this Lease.
10. JANITORIAL SERVICES. During the Term of this Lease, Lessee shall
provide for all janitorial services required on the Leased Premises. Lessee
agrees to dispose of all rubbish and garbage removed from the Leased Premises in
containers provided by Lessor.
11. LESSOR'S LIABILITY FOR DAMAGE TO LESSEE'S PROPERTY. Lessor shall
not be liable in damages, by abatement in rent or otherwise, for any damage
either to the person or the property of Lessee, or for the loss of or damage to
any property of Lessee by theft or for any injury or damage to persons or
property, or loss or interruption to business resulting from fire, explosion,
falling plaster, steam, gas, electricity, water, rain, snow, or leaks from any
part of the building, or from the pipes, appliances, or plumbing works, or from
the roof, street, or subsurface, or from any other place, or by dampness, or by
any cause of whatsoever nature; nor shall Lessor be liable for any damage caused
by other tenants or persons on the Leased Premises, or caused by operations in
construction of any private or public or quasi-public work. None of the
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limitations of the liability of Lessor provided for in this paragraph shall
apply if such loss, injury, or damages are proximately caused by the negligent
or intentional acts or omissions of Lessor or its agents, employees or
independent contractors.
12. INDEMNITY. Lessee hereby indemnifies and agrees to hold Lessor
harmless from any liability for damages to any person or property in or on the
Leased Premises arising out of Lessee's use of the Leased Premises, except to
the extent caused by the negligent or intentional acts or omissions of Lessor or
its agents, employees or independent contractors, for which Lessor shall
indemnify Lessee.
13. PUBLIC LIABILITY INSURANCE. Lessee shall, during the Term of this
Lease and any renewal hereof, keep in full force and effect a policy of
comprehensive public liability insurance with respect to the Leased Premises and
the business operated on the Leased Premises by Lessee in an amount not less
than One Million Dollars ($1,000,000.00) combined bodily injury and property
damage liability and naming Lessor as an additional insured. Upon Lessor's
request, Lessee shall deliver to Lessor a certificate evidencing such coverage
and showing payment of the premium due thereon. Lessor shall, during the Term of
this Lease and any renewal hereof, keep in full force and effect a policy of
comprehensive public liability insurance with respect to the Leased Premises in
an amount not less than One Million Dollars ($1,000,000.00) combined bodily
injury and property damage liability and naming Lessee as an additional insured.
Upon Lessee's request, Lessor shall deliver to Lessee a certificate evidencing
such coverage and showing payment of the premium due thereon.
14. CASUALTY INSURANCE. Lessor shall, at its sole cost and expense,
keep the Leased Premises and the improvements thereon insured against loss or
damage by fire or other risks insurable under standard fire and extended
coverage insurance in an amount not less than to the full current replacement
cost of said improvements. Upon Lessee's request, Lessor shall deliver to Lessee
a certificate evidencing such coverage and showing payment of the premium due
thereon.
15. SUBROGATION. Lessor and Lessee shall each obtain from their
respective insurers under all policies of fire, theft, public liability and
other insurance maintained by either of them at any time during the Term hereof
insuring or covering the Leased Premises, a waiver of all rights of subrogation
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which the insurer of the party might otherwise have, if at all, against the
other party.
16. DAMAGE OR DESTRUCTION TO THE LEASED PREMISES.
(a) If the Leased Premises, or any portion thereof, shall be
damaged by fire or other casualty and if the Leased Premises can be repaired and
restored within ninety (90) days of the date of such damage, Lessor shall repair
and/or restore the same as promptly as possible to the condition, character and
value that existed immediately prior to such damage. In such event, this Lease
shall not terminate, but shall remain in full force and effect, and a
proportionate abatement in the fixed monthly Rent shall be made from the time of
such fire or casualty until the Leased Premises are repaired or restored.
(b) Notwithstanding the extent of such damage or destruction, if
such damage or destruction cannot be repaired and restored within ninety (90)
days after the date of such damage, or if the cost of restoration of the Leased
Premises would exceed more than one-third (1/3) of the replacement value of the
Leased Premises, each as certified by a registered architect, then either Lessor
or Lessee shall have the right to cancel and terminate this Lease by giving
notice of same to the other at any time within thirty (30) days from the date
such damage or destruction, whereupon the Lease shall terminate ten (10) days
after such notice. If Lessor or Lessee does not elect to terminate this Lease,
Lessor shall repair and/or rebuild the Leased Premises as promptly as possible
to the condition, character and value that existed immediately prior to such
damage, and the Term shall continue in full force and effect, subject to a full
abatement in the monthly Rent from the time of said damage or destruction until
the Leased Premises are repaired or restored.
17. EMINENT DOMAIN. If any portion of the Leased Premises which
materially affects Lessee's ability to continue to use the Leased Premises for
the purposes set forth herein, or which renders the Leased Premises
untenantable, is taken by right of eminent domain or by condemnation, or is
conveyed in lieu of any such taking, then this Lease may be terminated at the
option of Lessee. Such option to terminate shall be exercised by Lessee giving
notice to Lessor of such termination within thirty (30) days after such taking
or conveyance whereupon this Lease shall terminate ten (10) days after such
notice is given and Rent shall be duly apportioned as of the date of such taking
or conveyance. All damages awarded for such taking shall belong to and be the
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property of Lessor. Lessee shall have no claim against Lessor by reason of such
taking or termination and shall not have any claim or right to any portion of
the amount that may be awarded or paid to Lessor as a result of any such taking,
except that Lessee shall have the right to make a claim against such public
authority for its loss of business and for any other relief available to Lessee.
18. ATTORNMENT AND SUBORDINATION.
(a) Lessee shall, in the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage covering the Leased Premises, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as Lessor, provided such
purchase recognizes and assumes all of Lessee's duties, obligations, rights, and
options under this Lease.
(b) Upon request by Lessor, Lessee shall subordinate its rights
hereunder to the lien of any mortgage or mortgages, or the lien resulting from
any other method of financing or refinancing, now or hereafter in force against
the Leased Premises and to all advances made or hereafter to be made upon the
security thereof; provided, however, that a condition precedent to Lessee's
requirement to subordinate hereunder shall be that Lessee, upon any default in
the terms of such financing by Lessor, shall have the right to pay the Rent due
hereunder directly to the mortgagee or other persons to whom Lessor may be
obligated under such financing and, so long as Lessee does so pay the Rents as
herein provided, this Lease and all Lessee's rights and options hereunder shall
remain in full force and effect as to such mortgagee or other financing obligee
of Lessor.
(c) Lessee, upon request of any party in interest, shall execute,
within ten (10) days of Lessee's receipt, such instruments or certificates to
carry out the intent of these paragraphs above as shall be requested by Lessor;
provided, however, that nothing contained in such instruments or certificates
required by Lessor shall be in derogation of any rights granted to Lessee
hereunder, nor expand Lessee's obligations hereunder, and if any such
instruments or certificates would have the effect of accomplishing one or both
of the foregoing, either explicitly or implicitly, then Lessee shall not be
obligated to execute the same.
19. DEFAULT BY LESSEE. If Lessee shall, at any time, be in default of
the payment of either rent or any payments required of Lessee hereunder or any
part thereof, for more than ten (10) days after the same shall be due hereunder,
regardless of whether demand has been made therefor, or if Lessee shall be in
default of any of the other covenants and conditions of this Lease to be kept,
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observed, and performed by Lessee for more than thirty (30) days after the
giving of written notice by Lessor to Lessee of such default or if Lessee shall
be adjudged a bankrupt, or if a receiver or trustee shall be appointed and shall
not be discharged within thirty (30) days from the date of such appointment,
then and in any such events Lessor may re-enter the Leased Premises by summary
proceedings or otherwise, and thereupon may expel all persons and remove all
property therefrom, without becoming liable to prosecution therefor, and may,
among other remedies, elect:
(a) To relet the Leased Premises as the agent of Lessee, and
reserve the rent therefrom, applying the same first to the payment of the
reasonable expense of such re-entry, and then to the payment of the rent
accruing hereunder; but whether or not the Leased Premises are relet, Lessee
shall remain liable for the equivalent of all rent and other charges provided
for under this Lease, plus the cost of reletting, if any, which said amount
shall be due and payable to Lessor as damages, or rent, as the case may be, on
the successive monthly rent days herein above provided; or
(b) To terminate this Lease and immediately resume possession of
the Leased Premises, wholly discharged from any obligations under the Term, and
may re-enter and repossess the Leased Premises, free from any and all claims on
the part of Lessee. Termination of this Lease does not discharge or in any way
affect Lessee's obligation to pay Lessor all the rents or other charges or
payments accruing under this Lease up to the date of termination.
20. DEFAULT BY LESSOR. Lessor shall not be in default unless it fails
to perform the obligations required of Lessor by this Lease within thirty (30)
days after written notice by Lessee to Lessor specifying which obligation(s)
Lessor has failed to perform; provided, however, that if the nature of the
specified obligation(s) is such that more than thirty (30) days are required for
performance, then Lessor shall not be in default if it commences performance
within such 30-day period and thereafter diligently prosecutes the same to
completion. If Lessor has not cured or commenced to cure the default set forth
in said notice within said 30-day period, Lessee may at its option either: (I)
cure such default and deduct the reasonable costs and expenses incurred from the
next and succeeding Rent payment(s); or (ii) terminate this Lease and, in such
event, this Lease shall thereupon cease, terminate, and come to an end with the
same force and effect as though the original Term had expired at that time.
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21. SUBLETTING AND ASSIGNING. Lessee shall not sublet any portion of
the Leased Premises nor assign this Lease in whole or in part without the
written consent of Lessor as to both the terms of such assignment or sublease
and the identity of such assignee or sublessee, which consent shall not
unreasonably be withheld or delayed, and in the event of a subletting so
approved by Lessor, Lessee shall nevertheless remain obligated to Lessor under
the terms of this Lease. Notwithstanding the foregoing, the consent of Lessor
shall not be required in connection with the assignment of this Lease to a
subsidiary of Lessee or entity controlled by Lessee or an unrelated entity
offering financial services and, upon such assignment, Lessee shall be released
from its obligations and liability hereunder.
22. SIGNS. Lessee shall have the exclusive right to install such
signage on the Leased Premises as Lessee, in its sole discretion, may deem
necessary and appropriate, subject to obtaining all necessary governmental
approvals. Lessor agrees to fully cooperate with Lessee in filing any required
applications, permits and/or variances for said signage or with respect to the
Leased Premises generally. At the time possession of the Leased Premises is
delivered to Lessee, Lessor shall remove all existing signage at the Leased
Premises at its sole cost and expense.
23. QUIET ENJOYMENT. Lessor covenants and agrees with Lessee that upon
Lessee paying the said Rent and performing all the covenants and conditions
contained in this Lease on Lessee's part to be observed and performed, Lessee
shall and may peaceably and quietly have, hold, and enjoy the Leased Premises
for the Term of this Lease.
24. MEMORANDUM OF LEASE. Lessor and Lessee agree that it will not
record this Lease or otherwise make it a matter of public record unless required
in any litigation involving this Lease. If Lessee or Lessor request, the parties
will enter into a short form lease, describing the Leased Premises and the Term,
and including any other terms necessary to permit the recording of such short
form lease. Such recording shall be at its cost and expense of the requesting
party.
25. NOTICES. All notices, requests and consents hereunder to any party,
shall be deemed to be sufficient if in writing and (I) delivered in person, (ii)
duly sent by first class, registered or certified mail return receipt requested
and postage prepaid in which case notice will be deemed received three (3)
business days after deposit in the U.S. Mail, or (iii) duly sent by
nationally-recognized overnight courier service in which case it will be deemed
received one (1) business day after deposit with the courier service, addressed
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in each instance to such party at the address first set forth in this Lease (or
at such other addresses as shall be specified by like notice). The time period
in which a response to any such notice must be given shall commence on the date
of receipt thereof and any rejection or other refusal to accept or inability to
deliver because of changed address for which no notice has been received shall
also constitute receipt.
26. EXPENSE OF ENFORCEMENT. If either Lessor or Lessee should prevail
in any litigation by or against the other party related to this Lease, or if
either party should become a party to any litigation instituted by or against
the other with respect to any third party, then as between Lessor and Lessee,
the losing party shall indemnify and hold the prevailing party harmless from all
costs and reasonable attorneys' fees incurred by the prevailing party in
connection with such litigation.
27. INSPECTION. Subject to the provisions of this paragraph, Lessor and
its contractors, agents or representatives may enter into and upon any part of
the Leased Premises during reasonable hours as may be necessary to make repairs
or otherwise perform Lessor's obligations under this Lease and, upon reasonable
prior notice to Lessee, for the purpose of showing the Leased Premises to
existing or prospective purchasers or lenders and, upon reasonable prior notice
to Lessee, at any time during the last six (6) months of the Term (including any
Extension Terms which Lessee has exercised) to prospective tenants. With respect
to any of the aforementioned entries by Lessor into and upon any part of the
Leased Premises other than for emergencies or routine repairs, Lessee shall be
entitled to have a representative accompany Lessor. Lessor shall not interfere
with the operation of Lessee's business during any such entry and Lessor shall
use reasonable efforts to make any routine repairs requiring access to the
Leased Premise during non-business hours. Notwithstanding any of the foregoing,
unless otherwise instructed by Lessee in writing, Lessor shall not enter areas
designated by Lessee as high security areas unless an emergency situation
exists. All access by Lessor or any invitee of Lessor shall be subject to
applicable federal banking regulations.
28. NON-WAIVER. Lessor's or Lessee's failure to insist upon strict
performance of any covenant of this Lease or to exercise any option or right
herein contained shall not be a waiver or relinquishment for the future of such
covenant, right, or option, but the same shall remain in full force and effect.
29. CAPTIONS. The captions and headings herein are for convenience and
reference only and should not be used in interpreting any provision of this
Lease.
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30. APPLICABLE LAW. This Lease shall be governed by and construed under
the laws of the State of Florida. If any provision of this Lease, or portion
thereof, or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby, and each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law. Time is of the essence in
this Lease.
31. SUCCESSORS. This Lease and the covenants and conditions herein
contained shall inure to the benefit of and be binding upon Lessor and Lessee
and their respective successors, and assigns; and shall inure to the benefit of
Lessee and only such assigns of Lessee to whom the assignment by Lessee has been
consented to by Lessor.
32. FORCE MAJEURE. The time within which any of the parties hereto
shall be required to perform any act or acts under this Lease, including the
performance of Lessor's and Lessee's obligations hereunder, shall be extended to
the extent that the performance of such act or acts shall be delayed by acts of
God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor
disputes, delays or restrictions by governmental bodies, inability to obtain or
use necessary materials, or any cause beyond the reasonable control of such
party, other than lack of monies or inability to procure monies to fulfill its
commitment or obligation under this Lease; provided, however, that the party
entitled to such extension hereunder shall give prompt notice to the other party
of the occurrence causing such delay. The provisions of this paragraph shall not
operate to excuse Lessee from prompt payment of Rent or any other payments
required by the terms of this Lease.
33. AMENDMENTS IN WRITING. This Lease and the Exhibits attached hereto
and forming a part hereof set forth all the covenants, promises, agreements,
conditions, and understandings between Lessor and Lessee concerning the Leased
Premises, and there are no covenants, promises, agreements, conditions, or
understandings, oral or written, between them other than are herein set forth.
Except as herein otherwise provided, no subsequent alteration, amendment,
change, or addition to this Lease shall be binding upon Lessor and Lessee unless
reduced to writing and signed by both parties.
34. RADON. Radon is a naturally occurring radioactive gas that when
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 buildings in Florida. Additional information
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regarding Radon or Radon testing may be obtained from your County Public Health
Unit.
35. LEASE CONTINGENCY. Lessor and Lessee hereby acknowledge that as of
the date of this Lease, Lessee has not yet had an opportunity to obtain all
necessary permits, approvals and authorizations for its intended use of the
Leased Premises, for the signage it intends to install on the Leased Premises
and for an ATM to be placed on the Leased Premises (the "Approvals"). Lessee
shall have a period commencing from the date of execution this Lease and
continuing through May 31, 2004 (the "Approval Period") within which to pursue
obtaining all Approvals. If Lessee, for any reason, determines that Lessee will
be unable to obtain all Approvals, on terms and conditions acceptable to Lessee,
then Lessee may, at any time prior to the expiration of the Approval Period,
terminate this Lease by giving written notice to Lessor. If Lessee terminates
this Lease pursuant to this paragraph, then this Lease shall be null and void,
the parties hereto shall have no further obligations under this Lease and Lessor
shall be entitled to retain all Rent and other amounts paid by Lessee to Lessor
prior to such termination.
36. TERMINATION RIGHT. Notwithstanding anything herein to the contrary,
subsequent to the twenty-sixth (26th) month of the Term, in the event Lessor
intends to undertake the redevelopment of the Leased Premises, Lessor shall have
the right to terminate this Lease upon six (6) months prior written notice to
Lessee. At the time the written notice of termination is provided to Lessee,
Lessor shall also provide Lessee with a copy of its request for a development
order submitted to the City of Boca Raton, Florida (the "Development Order
Request"). In the event the Development Order Request is not concurrently
provided to Lessee with the notice of termination, then such notice shall be
null and void and of no force or effect. In the event the notice of termination
and Development Order Request are concurrently provided to Lessee, then this
Lease shall terminate six (6) months after delivery of same to Lessee and, upon
such termination, Lessor and Lessee shall have no further obligations hereunder.
37. ASSIGNMENT BY LESSOR. Lessor may sell its interest in the Leased
Premises or assign this Lease at any time, either absolutely or as security for
a loan, without the necessity of obtaining Lessee's consent or permission, but
any such sale or assignment shall be at all times subject to this Lease and the
rights of Lessee hereunder. In the event of the sale of the Leased Premises,
Lessor shall be released from all liability in connection with Lessor's
13
obligations to be performed from and after the date of such transfer only if
such transferee agrees in writing to perform Lessor's obligations and assume
Lessor's liabilities under this Lease as of the date of such transfer.
38. RELATED LEASE. Lessor is owned and/or controlled by Xxxxxx X.
Xxxxxxxxxx ("Xxxxxxxxxx"). Xxxxxxxxxx also owns and/or controls Firehouse, LLC,
a Florida limited liability company ("Firehouse"). Firehouse owns certain
commercial real estate adjacent to and east of the Leased Premises (the
"Adjacent Property"), which Adjacent Property includes a parking area. As an
inducement and in consideration for entering into this Lease, concurrent with
the execution of this Lease, Lessee and Firehouse have entered into a lease for
six (6) parking spaces on the Adjacent Property and this Lease shall not be
effective without the execution of such lease or cross parking agreement as
needed to meet city requirements for use of premises.
IN WITNESS WHEREOF, the parties have hereto executed this Lease on the
day and year first written above.
4035 INC., a Florida corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Its: President
"LESSOR"
POINTE BANK, a Florida banking corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President and
Chief Financial Officer
"LESSEE"
14
EXHIBIT "A"
LEGAL DESCRIPTION
The following described land, situate, lying and being in Palm Beach County,
Florida, to wit:
Lot 20 Less the south 10 feet and less the north 3 feet and Lot 21,
less the south 10 feet and less the north 3 feet thereof, J.R.
Campbells Subdivision, according to the Plat thereof, as recorded in
Plat Book 5, Page 61, of the Public Records of Palm Beach County,
Florida.
A-1
