1
Exhibit 10.5
LEASE
THIS LEASE (hereafter referred to as the "Lease") is made and entered
into on this 8th day of April 1999, by and between XXXXXX X. XXXXXX whose
mailing address is 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx, as Landlord, and
BIG LAKE NATIONAL BANK, whose mailing address is X.X. Xxxxxx 0000, Xxxxxxxxxx,
Xxxxxxx 00000, as Tenant.
In consideration of the mutual promises contained herein, the parties
agree:
1. LEASE; DESCRIPTION OF PREMISES. Landlord does lease to Tenant,
and Tenant does lease from Landlord, the following described property located in
the Okeechobee County, Florida (which shall hereafter be referred to as the
"Premises"): 0000 Xxxxxxx 000 X.X., Xxxxxxxxxx, Xxxxxxx 00000 containing a
building of approximately 2,500 square feet and parking area as depicted on the
Site Plan of Xxxxxx and Associates, Inc. dated 6/2/93 and attached hereto as
Exhibit "A".
2. REQUIRED USES. The Premises shall be used for banking and
financial operations and for no other use, unless agreed to in writing by
Landlord. Tenant hereby accepts the Premises in the condition they are in at the
beginning of this Lease and agrees to maintain same in the manner as hereinafter
described.
3. TERM. The term of this Lease shall be for five years with the
Tenant's option to renew the lease for two additional five year terms beginning
on August 1, 1999, and terminating on July 31, 2004.
4. RENT. For the first three years of this Lease, Tenant shall
pay rent at the rate of $14,751.84 per year, payable monthly at the rate of
$1,229.32 per month. For the fourth and all succeeding years of this Lease, the
annual rental amount shall be the lower of either (a) the rental rate in effect
at the time of the adjustment multiplied by 1.03, or (b) rental rate in effect
at the time of the adjustment multiplied by a fraction, the numerator of which
shall be the index number (index number) indicated on the consumer price index
for urban wage earners and clerical workers (CPI - W)(1982-84=100)(revised)
issued by the Bureau of Labor Statistics of the United States Department of
Labor, under the United States Index Column for June of the year of adjustment
and the denominator of which shall be the Index Number for June of the previous
year. In the event the CPI is no longer available, then there shall be
substituted for the CPI a comparable price index as published by the U.S.
Government. For every successive year during the term of this Lease, the annual
rental amount shall be adjusted in a similar manner. The rent shall continue to
be paid monthly following such annual adjustments. Should there have been no CPI
rental rate adjustments within the initial term of this lease, the rental rate
shall none-the-less be increased by three (3%) percent beginning the sixth year.
Likewise, should there have been no CPI rental rate adjustments within the first
five year option term, the rental rate shall none-the-less be increased by three
(3%) percent beginning the eleventh year
2
5. SALES TAX. Tenant shall pay to Landlord with each rent payment
any sales tax levied upon the rental of property as a result of this Lease by
the State of Florida.
6. REAL ESTATE TAXES. The tenant shall pay all real estate and
tangible personal property taxes assessed as a result of this Lease.
7. PRORATIONS. All utilities shall be prorated as of the date of
possession.
8. LATE CHARGE. Tenant acknowledges that late payments by Tenant
to Landlord of rent or other sums due under this Lease will cause Landlord to
suffer costs and damages not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Accordingly, if any sum due from
Tenant is not actually received by Landlord on the tenth day of being due, then
Tenant shall pay a late charge of 5% of the amount due, in addition to any
attorneys' fees, collection expenses, or interest incurred by Tenant's failure
to make timely payments.
9. PROHIBITION AGAINST UNLAWFUL OR OFFENSIVE USE. Tenant will not
make or permit any use of the Premises which would be: (1) offensive so as to
constitute a nuisance; (2) unlawful under any federal, state or county code,
ordinance or regulation; or (3) injurious to any person or property.
10. FIRE HAZARDS. Tenant shall not keep, use, sell or offer for
sale in the Premises any article, or conduct any activity which may be
prohibited by the standard form of fire insurance policy. Further, Lessee shall
maintain a dry chemical fire extinguisher in each rental unit at all times
during the term of this Lease.
11. UTILITIES. Tenant shall be responsible for all utilities
including but not limited to, telephone, electricity, pro rata share of refuse
removal, sewer and water, if any.
12. MAINTENANCE. That upon the occupancy of the Premises, Tenant
shall maintain the interior of the premises in good working condition and shall
suffer no waste or nuisance. In case of damage to the Premises, Tenant shall
repair with same kind, size, and quality as quickly as possible at Tenant's
expense. Landlord shall perform all structural, routine and preventative
maintenance and repair required to keep the heating, air-conditioning,
electrical, fire suppression and plumbing systems in Premises in working order
and the same condition as on the first day of the lease term as well as the
exterior structures of the premises, including but not limited to the roof,
parking and drainage. The Tenant shall be responsible for all lawn and
landscaping maintenance.
13. LIABILITY INSURANCE. LIABILITY INSURANCE.
a. Tenant shall, at its sole cost and expense, procure
and maintain during the term of this Lease
comprehensive public liability insurance with limits
of not less than one million dollars ($1,000,000.00)
in case of injury or damage to one person, and five
hundred thousand dollars ($500,000.00) in case of
injury or damage to more than one person in the same
accident or occurrence, and fifty thousand dollars
($50,000.00) in case of damage to property.
2
3
b. Tenant shall, at sole cost and expense, procure and
maintain during the term of this Lease and all
renewals, insurance coverage on Tenant's personal
property and contents, maintained in and about the
leased premises.
14. WORKER'S COMPENSATION INSURANCE. Tenant shall carry worker's
compensation insurance if required by Florida Law. Tenant shall hold Landlord
harmless from any claims by Tenant's employees for work related injuries
occurring on or about the Premises. Tenant shall provide Landlord with a copy of
proof of insurance within thirty (30) days after the date first written above,
and on each renewal date of the policy during the term of this Lease. Failure to
keep the policy in force during the term of this Lease or failure to provide
Landlord with a certificate of insurance shall be a material breach of this
Lease.
15. INDEMNITY. That to the extent permitted by law, the Tenant
shall protect, indemnify and save the Landlord harmless against all liability or
loss, and against all claims or actions based upon or arising out of damage or
injury (including death) to persons or property on, or about the Premises
arising out of or resulting in any way from any act or omission of the Tenant,
its agents, invitees, servants and employees, in the use of the Premises during
the term of this Lease or based upon any violation of any statute, ordinance,
building code, or regulation, and the defense of any such claims or actions
other than resulting from the act or negligence of the Landlord or its
employees. In the event that any claim in writing is asserted by any third party
which may entitle the Landlord to indemnification, the Landlord shall give
notice thereof to the Tenant, which notice shall be accompanied by a copy of the
statement of the claim. Following the notice, the Tenant shall have the right,
but not the obligation, to participate at its sole expense, in the defense,
compromise or settlement of such claim with counsel of its choice. If the Tenant
shall fail to timely defend, contest or otherwise protect against any suit,
action or other proceeding arising from such claim, the Landlord shall have the
right to defend, contest or otherwise protect itself against same and be
reimbursed for expenses and reasonable attorney fees, and upon not less than ten
(10) days notice to the Tenant, to make any reasonable compromise or settlement
thereof.
16. LIENS.
a. Tenant agrees to pay all liens of contractors,
subcontractors, mechanics, laborers, material men,
and other items of like character, and indemnify
Landlord against all expenses, costs and charges,
including bond premiums for release of liens and
reasonable attorneys' fees incurred in the defense of
any suit in discharging the Premises or any part
thereof from any liens, judgments or encumbrances
caused or suffered by Tenant.
b. Tenant shall not have any authority to create any
liens for labor or material in Landlord's interest in
the Premises by any persons contracting with Tenant
for the destruction or removal of any facilities or
other improvements or for the erection, installation,
alteration or repair of any facilities or other
improvements on or about the Premises. All
materialmen, contractors, mechanics and laborers, are
hereby charged with notice that they must look only
to Tenant and to Tenant's interests in the Premises
to secure the payment of any xxxx for work done or
materials furnished at the request or instruction of
Tenant.
3
4
17. EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute an event of default under this Lease:
a. Tenant abandons or vacates the Premises, and such
abandonment or vacancy continues for a period of
sixty (60) days; or
b. Tenant fails to pay any part or all the money due
Landlord under this Lease, and such non-payment
continues for a period of thirty (30) days; or
c. Tenant fails to perform or breaches any term,
covenant or provision of this Lease, except the
payment of money, and such non-performance or breach
is not cured within thirty (30) days after written
notice of the default from Landlord is delivered to
Tenant or posted on the Premises; or
d. Tenant is the subject a voluntary or involuntary
petition for bankruptcy protection, Tenant makes a
general or other assignment for the benefit of
creditors, or Tenant's assets or operations become
subject to the control of a court-appointed receiver.
18. REMEDIES ON DEFAULT BY TENANT. Upon the occurrence of any
event of default by Tenant under this Lease, Landlord shall have the option to
pursue any one or more of the following remedies, in addition or in place of the
remedies otherwise provided herein or by statute, without any notice or demand
whatsoever to Tenant or Guarantor, if any:
a. Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and
if Tenant fails to do so, Landlord may, without
prejudice to any other remedy for possession or
arrearage in rent, enter upon and take possession of
the Premises. Tenant agrees to pay Landlord on demand
the amount of all loss or damage which Landlord may
suffer by reason of such termination, including the
expenses of retaking, rerenting the Premises and loss
of rent through the inability to relet the Premises.
b. Enter upon and take possession of the Premises, and
relet the Premises and receive the rent therefor
without thereby terminating or avoiding this Lease.
Tenant agrees to pay Landlord on the due day of each
month thereafter sums equivalent to the monthly
rental payment under this Lease, less the avails of
reletting, if any.
c. Accelerate all rental payments due under this Lease
and declare them immediately due and payable, and to
recover the accelerated rent from Tenant in an action
at law, distress for rent or otherwise.
All of the foregoing rights, remedies, powers and elections of Landlord
are cumulative, and pursuit of any of the foregoing shall not preclude other
remedies provided by law, nor shall such pursuit constitute a forfeiture or
waiver of any rent due to Landlord or of any damages occurring to Landlord by
reason of the violation of any of the terms of this Lease. Forbearance by
Landlord to enforce one or more of the remedies upon an event of default, shall
not be deemed or construed to constitute a waiver of such default.
4
5
19. DESTRUCTION OF PREMISES. If, during the term of this Lease,
the Premises are totally or partially destroyed from any cause rendering them
totally or partially inaccessible or unusable, Landlord shall restore the
Premises to substantially the same condition as they were in immediately prior
to the destruction, provided the restoration can be made and permitted under
existing laws and can be completed within ninety (90) days after the date of the
destruction; under such circumstances, this Lease shall not terminate. Provided
however that expense for repair of non-insured improvements of Tenant shall be
born by Tenant. If the restoration cannot be made within ninety (90) days,
either party may terminate this Lease immediately by giving written notice to
the other not more than ninety (90) days after the destruction. In case of any
destruction, not caused by Tenant or its invitees, described in this paragraph,
there shall be an abatement or reduction of rent between the date of destruction
and the date of termination of the Lease or completion of restoration, as the
case may be, based upon the extent to which the destruction interferes with
Tenant's use of the Premises.
20. ASSIGNMENT OR SUBLEASE BY TENANT. Tenant shall not, either
voluntarily or by operation of law, assign or transfer the leasehold interest
granted by this Lease or any interest therein, without first obtaining the
written consent of Landlord, which shall not be unreasonably withheld. A consent
to one assignment or subletting shall not be deemed to be a consent to any
subsequent assignment or subletting. Any such subsequent assignment or
subletting shall be void, and shall, at the option of Landlord, constitute a
default under the terms of this Lease. This paragraph shall not preclude the
Tenant from assigning the rights under this agreement to a corporation in which
the Tenant owns and retains a majority interest provided that no such assignment
shall relieve the Tenant of any obligation to the Landlord contained herein.
a. CONTROLLED PARTIES; MERGERS. Any provision contained
in this Lease to the contrary notwithstanding,
Tenant, after first having given prior written notice
to Landlord, shall have the right, without consent of
Landlord, to assign or sublet all or any part of the
Premises to any entity controlling, (either directly
or indirectly) the Tenant and to any entity into
which Tenant may be merged or consolidated
("Controlled Parties").
b. DIVESTITURE REQUIRED BY REGULATORY AGENCIES. If
Tenant is involved in a merger, acquisition, or
consolidation and in connection therewith the
regulatory agency having jurisdiction requires that
pursuant to an approved Plan of Divestiture Tenant
must divest itself of certain deposits and facilities
which may include the Premises, Tenant may request
that Landlord approve an assignment of all, or a
sublease of a portion, of the Premises, (The
"Divestiture Space") to the party that is to acquire
such deposits and facilities. If Landlord does not
approve the assignment or sublease to such proposed
Transferee in accordance with the terms of this
Section, Landlord shall recapture the proposed
Divestiture Space not earlier that thirty (30) days
nor later than sixty (60) days after the proposed
Divestiture Space is vacated by the Tenant. The
proposed Divestiture Space shall be eliminated upon
the date of recapture by the Landlord and Tenant
shall have no obligation with respect to the Proposed
Divestiture Space that accrues subsequent to such
recapture.
c. SALE OF DEPOSITS OR CHANGE IN BUSINESS LOCATION. Any
provision contained in this Lease to the contrary
notwithstanding, Tenant, after first having given
prior
5
6
written notice to Landlord, shall have the right
without consent of Landlord to assign or sublet all
or any part of the Premises to a creditworthy tenant
in the event Tenant sells its deposits located at the
Premises or determines that it no longer desires to
operate in the Premises. Upon such assignment and a
written assumption of Tenant's obligations hereunder
by the Assignee, Tenant shall be released from its
obligations hereunder. Landlord shall acknowledge its
consent to the assignment of this Lease and the
release of Tenant hereunder in writing within Ten
days of the request of Tenant.
21. RIGHT OF INSPECTION. Landlord shall have the right to make
reasonable inspections of the Premises between the hours of 9:00 a.m. and 4:00
p.m. on weekdays, exclusive of federal or banking holidays.
22. NOTICES. All notices to Landlord shall be sent or delivered to
XXXXXX X. XXXXXX
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx
All notices to Tenant shall be sent or delivered to:
BIG LAKE NATIONAL BANK
X.X. Xxxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
All notices shall be in writing and shall be delivered either by hand
with proof of delivery or by certified mail, return receipt requested, postage
prepaid. Notices sent or delivered by mail in accordance with this paragraph
shall be deemed to have been given five (5) business days after the date of
mailing, and all other notices delivered by any other means, such as hand
delivery or express delivery, shall be deemed to have been given when received.
23. WAIVER OF BREACH. Tenant agrees that no assent, express or
implied, by Landlord to any breach of this Lease by Tenant shall be deemed to be
a waiver of any succeeding breach by Tenant.
24. SURRENDER AT END OF LEASE. Tenant agrees upon termination of
this Lease for any reason to peaceably yield up to Landlord the Premises in neat
and clean condition, with all debris removed, and in good repair in all
respects, reasonable use and wear or damage by casualty excepted. Upon
termination of this Lease for any reason, Tenant shall remove from the Premises
all signs, trade fixtures, furnishings, personal property, equipment and
materials belonging to Tenant, and if Tenant fails to remove such items from the
Premises upon vacating the premises, then Landlord may remove the items and
Tenant shall promptly pay the costs and expenses of the removal or Landlord may
consider the property abandoned and retain same as additional rent without
further obligation to Tenant..
25. TENANT'S PERSONAL PROPERTY. All personal property placed or
moved onto the Premises shall be at the risk of Tenant or owner thereof, and
Landlord shall not be liable for any damage to personal property, or to Tenant,
arising from any act of negligence of any tenant or occupants of the building or
of any other person whomsoever.
6
7
26. ATTORNEYS' FEES. It is understood and agreed between the
parties hereto that in the event of any litigation between the parties, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
court costs from the losing party at both the trial and appellate levels.
27. ENCUMBRANCE OF TENANT'S INTEREST. Tenant shall not be entitled
to borrow against this Premises or encumber it in any manner. If Tenant should
violate this provision against encumbrances upon the Premises, that encumbrance
shall be deemed to be a material breach of this Lease.
28. IMPROVEMENTS. The Tenant shall make no modification or
additions to the Premises without the written consent of the Landlord, which
consent shall not be unreasonably withheld. All permanent improvements which
would constitute real property under the common law of the State of Florida
shall become the property of Landlord when erected, subject to the terms of this
Lease, and Tenant is not entitled to any claim for reimbursement from Landlord
for such improvements either during or after the term of this Lease or any
extensions thereof. All other improvements made to the Premises may be removed
by Tenant after the termination of this Lease so long as the Lease is not
terminated as a result of a default in payment or performance by Tenant.
29. ENVIRONMENTAL INDEMNITY. Tenant shall not permit the Premises
to be contaminated with any environmental hazard. Tenant shall indemnify,
protect and hold harmless Landlord from any environmental damage and if such
environmental damage is discovered, resulting from Tenant's use of the Premises,
Tenant shall promptly undertake and pursue diligently appropriate steps to
repair the damage and shall notify Landlord of such environmental damage within
twenty-four (24) hours after Tenant's discovery of such environmental damage.
a. LANDLORD'S COVENANT. Landlord represents that to the
Landlord's best knowledge, there exists no Hazardous
Materials, on, in, under or about the Project, in violation of
any applicable laws, rules or regulations. Landlord agrees to
indemnify and hold Tenant harmless from all claims, judgments,
damages, penalties, fines, costs (including reasonable
attorney's fees), liabilities, or losses incurred by Tenant,
its employees, guests or invitees, resulting from any
Hazardous Materials found on the Project which were brought on
the Project before August 1, 1999, except as brought onto the
Project by Tenant, its employees, contractors, or
subcontractors, in violation of applicable laws, rules, and
regulations. The foregoing indemnity shall survive the
expiration or earlier termination of the Lease. Furthermore,
in the event Hazardous Materials are found to be located
within the Project at any time during the Term or Renewal
thereof, the landlord shall upon written demand by the Tenant,
promptly remove such Hazardous Materials and restore the
Project to the same condition as existing prior to removal.
All such removal shall be done in a manner which shall not
prevent or materially disrupt the Tenant's business operations
and shall comply with all applicable codes, rules and
regulations which exist at the time relating to such removal.
All plans and schedules relating to removal and restoration,
shall be subject to the approval of the Tenant prior to
commencement of the work, which approval shall not be
unreasonably withheld. The cost of all removal and restoration
shall be the Landlord's responsibility. In the event that
Landlord fails to remove Hazardous Materials and restore the
Project, the Tenant may conduct such removal and restoration,
and the Landlord shall reimburse the Tenant for all costs
associated with such removal and restoration within ten (10)
business days after demand.
7
8
30. COMPLIANCE WITH PERMIT REQUIREMENTS. Tenant shall be
responsible for obtaining and complying with all governmental permits required
for Tenant's use and occupancy of the premises. Failure by Tenant to comply with
this paragraph shall be deemed to be a material breach of the terms of this
Lease.
31. AMERICAN'S WITH DISABILITIES ACT. Landlord shall make any and
all improvements, modifications, alterations or replacements as may be necessary
to cause the Premises, to fully comply with all aspects of the American's with
Disabilities Act of 1990 (the "ADA") and shall indemnify and hold Tenant, its
directors, heirs, successors and assignees harmless from all claims, judgments,
damages, penalties, fines, costs (including reasonable attorney's fees), or
costs incurred to keep the Premises, in compliance after the Commencement Date
of this Lease.
32. MISCELLANEOUS PROVISIONS:
a. BINDING EFFECT. All of the covenants, conditions and
obligations of this Lease shall be binding upon and
inure to the benefit of the respective heirs,
administrators, successors and assigns of the
parties.
b. CONSTRUCTION OF LEASE. Words of any gender used in
this Lease shall be construed to include any other
gender, and words in singular number shall be held to
include the plural, when the sense requires. If any
provision of this Lease becomes subject to judicial
interpretation, then the parties agree that the court
interpreting or considering such provision will not
apply the presumption or rule of construction that
the terms of this Lease will be more strictly
construed against the party which itself or through
its counsel or other agent prepared this Lease
because both parties have equally negotiated the
terms of this Lease and have equally participated in
the preparation of the final form of this Lease, and
therefore, the application of such presumption or
rule of construction would be inappropriate and
contrary to the intent of the parties.
c. RELATIONSHIP OF PARTIES. Nothing contained in this
Lease shall be deemed or construed by the parties or
by any third person to create the relationship of
principal and agent or of partnership or of joint
venture or of any association between Lessors and
Lessee, and neither the method of computation of rent
nor any other provisions contained in the Lease nor
any acts of the parties shall be deemed to create any
relationship between Lessors and Lessee, other than
the relationship of landlord and tenant.
d. SEVERABILITY. In the event that any provision of this
Lease is determined to be invalid, illegal, or
unenforceable for any reason, then the parties shall
negotiate in good faith and agree on such amendments
or modifications to this Lease, or such other
appropriate actions, that will to the maximum extent
practicable in light of such determination, give
effect to the intentions of the parties as reflected
in this Lease, and all other provisions of this
Lease, as amended, modified, or otherwise, shall
remain in full force and effect, but if, after good
faith negotiations, the parties fail to reach an
agreement regarding the invalid, illegal, or
unenforceable provisions,
8
9
then the parties agree that such provisions shall be
severed from this Lease and such severance shall not
invalidate any other provision of this Lease or this
Lease itself.
e. ENTIRE AGREEMENT. This Lease states the entire
understanding between the parties and supersedes any
written or oral representations, statements,
negotiations, or agreements to the contrary.
f. BINDING AGREEMENT. No provision of this Lease may be
changed or modified except by an agreement in writing
signed by all of the parties or their successors in
interest. This Lease shall not be effective or
binding on any party until fully executed.
g. CAPTIONS. The captions and paragraphs or letters
appearing in this lease are inserted only as a matter
of convenience and in no way define, limit, construe,
or describe the scope or intent of the sections or
articles of this lease or affect this lease in any
way.
h. COMPUTATION OF TIME. The time within which any act
provided for by this Lease is to be done is computed
by excluding the first day and including the last,
unless the last day is a Saturday, Sunday, or holiday
and then it is also excluded. The term "holiday"
shall mean all holidays officially recognized by the
federal government and the government of the state in
which the premises are located.
m. REGISTRY DEPOSIT. In the event of any action in which
section 83.232, Florida Statutes would apply, the
term "rent" as used in that section shall be deemed
to include all escrows, insurance payments, option
payments and any other monetary obligation required
by this agreement.
IN WITNESS WHEREOF, the parties have executed this Lease on the date
first written above.
WITNESSES as to LANDLORD: LANDLORD:
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
---------------------------------- -----------------------------------
(Signature) XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
----------------------------------
(Print name)
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
(Signature)
Xxxxxxx X. Xxxxxxx
----------------------------------
(Print name)
9
10
WITNESSES as to TENANT: TENANT: BIG LAKE NATIONAL BANK
/s/ Xxxxxx X. Xxxxxx
----------------------------------
(Signature)
Xxxxxx X. Xxxxxx
----------------------------------
(Print name)
By /s/ Xxx X. Xxxxxxx
-------------------------------
XXX X. XXXXXXX, PRESIDENT
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
(Signature)
Xxxxxxx X. Xxxxxxx
----------------------------------
(Print name)
10
