1
Exhibit 10.6
[FIRST UNION LOGO]
LEASE
By and Between
FIRST UNION NATIONAL BANK
("Tenant")
and
XXXXXXXXX AND SEE PROPERTIES
("Landlord")
at
000 X. 0xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
2
TABLE OF CONTENTS
Section and Title Page
----------------- ----
1. Premises................................................... 1
2. Term....................................................... 1
3. Use........................................................ 1
4. Rent....................................................... 1
5. Landlord's Improvements and Warranty....................... 2
6. Access..................................................... 3
7. Operating Costs - Defined.................................. 5
8. Operating Costs - Payment.................................. 5
9. Care of the Premises....................................... 7
10. Entry by Landlord.......................................... 7
11. Signage and Graphics....................................... 7
12. Parking.................................................... 8
13. Tenant's Right to Terminate................................ 8
14. Renewal Terms.............................................. 8
45. Assignment and Subletting.................................. 9
16. Alterations, Improvements, Mechanic's Liens................ 9
17. Communications Equipment................................... 10
18. Automated Teller Machine(s); Night Depository(ies)......... 11
19. Tenant Improvements........................................ 11
20. Legal Use; Hazardous Materials............................. 11
21. Laws and Regulations; Rules of Project..................... 12
22. Nuisance................................................... 13
23. Quiet Enjoyment............................................ 13
24. Insurance.................................................. 13
25. Waiver of Subrogation...................................... 14
26. Casualty Damage............................................ 14
27. Condemnation............................................... 15
28. Subordination to Mortgage.................................. 16
29. Estoppel Certificate or Three-Party Agreement.............. 16
30. Default; Remedies.......................................... 16
31. Holding Over............................................... 17
32. Attorneys' Fees............................................ 17
33. Tenant's Set-Off Rights.................................... 18
34. Arbitration................................................ 18
35. Alteration................................................. 19
36. No Implied Waiver.......................................... 19
37. Severability............................................... 19
38. Time of Performance........................................ 19
39. Commissions................................................ 19
40. Assignment by Landlord..................................... 19
41. Tenant's and Landlord's Authority to Execute; Effect....... 19
42. Relationship of Parties.................................... 19
43. Governmental Regulation.................................... 20
44. Exhibits................................................... 20
45. Radon Gas.................................................. 20
46. Pronouns................................................... 20
47. Jurisdiction............................................... 20
48. Notices.................................................... 20
49. Miscellaneous.............................................. 21
50. Waiver of Landlord's Lien.................................. 21
51. Consent.................................................... 21
52. Limitation upon Indemnities................................ 21
53. Confidentiality............................................ 21
54. Memorandum of Lease........................................ 21
55. Amounts Accrued as of Termination.......................... 22
56. Waiver of the Right to Trial by Jury....................... 22
i
3
EXHIBIT A Legal Description
EXHIBIT X-0 Xxxxx Xxxx
XXXXXXX X-0 Site Plan
EXHIBIT C Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT D Holidays
EXHIBIT E Building Standard Janitorial Services
EXHIBIT F Signage and Graphics
EXHIBIT G Landlord and Tenant Construction Obligations Tenant Space
Plan and Tenant Working Drawings
EXHIBIT H Rules and Regulations
EXHIBIT I Memorandum of Lease
ii
4
FULL SERVICE OFFICE LEASE
THIS FULL SERVICE OFTICE LEASE ("Agreement"), dated the 1st day of
July, 1998, between XXXXXXXXX AND SEE PROPERTIES, a Florida general
partnership, whose address for purposes hereof is ____________________________,
("LANDLORD") and FTRST UNION NATIONAL BANK, a national banking association,
whose address for purposes hereof is 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 ("TENANT")
WITNESSETH:
LANDLORD leases to TENANT and TENANT leases from LANDLORD the premises
described below in SECTION 1 and located within a one story office building
consisting of 11,582 net rentable square feet and located at 000 X. 0xx Xxxxxx,
Xxxxxxxx, Xxxxxxx 00000 (the "BUILDING") situated on that certain real property
(the "PROPERTY") as described on Exhibit A attached hereto and made a part
hereof (the "LAND"). The BUILDING and the LAND being sometimes collectively
referred to herein as the "PROJECT". "NET RENTABLE AREA" is hereinafter
referred as the interior space of the premises within the portion of the
BUILDING leased by TENANT and shall be measured by Tenant's architect Prior to
Lease commencement and adjusted accordingly using the appropriate BOMA
standards (American National Standard 2651.1, approved July 31, 1980).
1. PREMISES. Approximately 6,878 square feet, more or less as designated
by TENANT, of NET RENTABLE AREA located on the first floor as shown on the
floor plan EXHIBIT B-1 attached hereto and made a part hereof and the land
constituting the drive-in banking facility, ATM facility ingress, egress,
parking and circulation related to same, as shown on EXHIBIT B-2 attached
hereto and made part hereof, all of which are sometimes collectively referred
to herein as the ("PREMISES").
2. TERM. Subject to the provisions of SECTION 13, the Lease Term shall be
Ten (10) years (the "TERM") commencing upon the acquisition of the Project by
Landlord (the "COMMENCEMENT DATE"). Prior to the Commencement Date Landlord
shall obtain the execution and delivery of the Subordination, Non-Disturbance
and Attornment Agreement EXHIBIT C attached hereto and made a part hereof to
the TENANT.
3. USE. The Premises may be used for general offices, including without
limitation, commercial banking, lending and related financial service
activities and operations. Landlord agrees that during the Term including any
Renewal Term(s), Landlord shall not lease or permit the occupancy of any
portion of the Building or Project to any bank, savings and loan association,
credit union, financial institution, mortgage banking, insurance or stock
brokerage firm. Landlord acknowledges that this restriction is a material
consideration for Tenant entering into this Lease with the Landlord, and this
provision shall be liberally construed. Landlord further agrees that this
restriction shall be effective and remain in existence whether or not the
Tenant is occupying the Premises, as long as the Tenant was occupying the
Premises during the Term or at the commencement of any Renewal Term and
continues to pay the rent to the Landlord pursuant to the terms of the Lease.
4. RENT. During the initial Ten (10) year Term of this Lease and subject
to the provisions of SECTION 13 herein, TENANT shall pay to the LANDLORD the
"NET RENTS" set forth below based upon the area actually leased by TENANT,
excluding the portion of the Premises located outside the Building, common
areas for elevators, stairwells utilized to serve as access to multiple tenant
areas, electrical, communications equipment and air conditioning equipment
rooms and areas, public restrooms, janitorial closets and lobbies and/or
corridors which serve more than one tenant and areas for communications
equipment, as described herein, (the "NET RENT") plus applicable sales tax. For
definition, "NET RENT" is the annual rent amount or rate exclusive of Operating
Costs, NET RENT and Operating Costs sometimes being collectively referred to as
"RENT". The annual NET RENT
5
amount shall mean an amount equal to the NET RENT Rate (identified below) for
the applicable lease year multiplied by the Net Rentable Area.
YEARS RATE MONTHLY ANNUALLY TOTAL
----- ---- ------- -------- -----
1 $10.50 rsf $6,018.25 $72,219.00 $72,219.00
2-10 The Net Rent shall be the prior year's Net Rent increased by the lesser
of five percent (5%) or the CPI, as hereinafter defined.
"CPI" - The percentage change of the United States Bureau of Labor
Statistics, Consumer Price Index, United States and Selected Areas,
1982-84 = 100, All Items.
Net Rent shall be based upon the actual square footage leased by
TENANT AT THE RATES SET FORTH ABOVE.
(a) SALES TAX. In addition to the NET RENT and Operating Costs,
TENANT agrees to pay the LANDLORD monthly all sales taxes levied by
the State of Florida or any other governmental body or agency against
any Rent or any other charge or payment required hereunder to be made
by TENANT to LANDLORD or otherwise due with respect to this LEASE.
Notwithstanding anything to the contrary, TENANT shall be allowed to
pay such sales taxes or other similar imposition directly to the
taxing authority if such direct payment would permit TENANT to obtain
discount from the obligation to pay such tax or imposition or obtain
any additional tax benefits thereby.
(b) TIME OF PAYMENT. All payments due under this LEASE shall be
paid monthly in advance on or before the first (1st) day of each month
(the "Due Date") without reduction, abatement or set-off (except when
and as specifically provided herein and SECTION 33 hereof) any payment
due and not paid within SEVEN (7) business days after written notice
of nonpayment shall bear interest retroactive from the Due Date at the
Prime Rate of First Union National Bank, plus TWO PER-CENT (2%) per
annum or the maximum lawful rate, whichever is less ("DEFAULT RATE")
until paid. Landlord's failure to provide timely written notice shall
not constitute a waiver of Default Rate Interest.
(c) PRORATION OF RENT. If the COMMENCEMENT DATE is other than on
the first day of a month, the Rent for the first month of the LEASE
shall be prorated from the COMMENCEMENT DATE to the last day of the
first month. Similarly, the Rent shall be prorated for the last month
of the LEASE, from the first day of the last month to the termination
date of the LEASE. The Rent for the first and last calendar year
months of the Lease Term shall be prorated on a daily basis as if each
were a THIRTY (30) day month.
5. LANDLORD'S IMPROVEMENTS AND WARRANTY. Immediately upon full execution
of this LEASE, at Landlord's sole cost and expense, Landlord shall commence to
make the repairs described in this Section 5:
(a) make any and all improvements, modifications, alterations or
replacements as may be necessary to cause the Project, excluding the interior
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, judgements, damages,
penalties, fines, costs (including reasonable attorney's fees), or costs
incurred to keep the Project, excluding the interior Premises, in compliance
after the Commencement Date of this LEASE; and
(b) make any and all necessary repairs, replacements,
modifications or improvements to the exterior of the Building, the structural
components (both interior and exterior), exterior windows, glass, glazing,
doors and roof of the Building, the utility lines serving the Building and the
Premises, the grounds, the parking areas, exterior lighting
2
6
fixtures and components thereof, the fencing and the Land, all collectively
hereinafter referred to as the "BUILDING COMPONENTS", to keep the Building
Components in good operating condition and repair; and
(c) make any and all necessary repairs, replacements,
modifications or improvements to the heating, air conditioning, ventilation,
electrical and plumbing systems, components,' controls, fixtures and equipment
serving the Premises, all collectively hereinafter referred to as the "BUILDING
SYSTEMS", to keep the Building Systems in good operating condition, repair and
to assure operation at their full rated capacity; and
(d) make any and all necessary repairs, replacements,
modifications or improvements to the fire alarm, fire sprinkler, emergency
lighting an any other life/health safety systems, components, controls,
fixtures and equipment serving the Premises, all collectively hereinafter
referred to as the "LIFE SAFETY SYSTEMS", to keep the Life Safety Systems in
good operating condition and repair and to assure all Life Safety Systems
continue to comply with all applicable codes, regulations and requirements in
effect at the time of Lease execution; and
(e) from and after the Commencement Date and throughout the Lease
Term, or any Renewal thereof, Landlord shall maintain and make any necessary
repairs to, or replacements of, any or all of the Building Components, Building
Systems and Life Safety Systems to assure and maintain good operating
condition, performance and compliance with all applicable codes and regulations
as herein provided in this SECTION 5 at all times during the Term and any
Renewal Terms thereof. Such maintenance and repairs for the Building Components
shall be at Landlord's sole cost and expense (except to the extent of damage
caused by Tenant, its agents, contractors and employees) and may not be
included as part of Operating Costs. In the event that Landlord fails to make
any necessary repairs or replacements as provided herein this SECTION 5, the
Tenant may do so and the Landlord shall reimburse the Tenant for all costs
associated with such changes within TEN (10) business days after demand. If the
Landlord shall fail to pay when due any sums owed by the Landlord to the
Tenant, Tenant shall have the right to set-off all amounts due in accordance
with the provisions of SECTION 33 hereof. Landlord shall indemnify, defend and
hold Tenant, its directors, heirs, successors, assignees, agents, contractors,
subcontractors, visitors and employees harmless from and against any suit,
damages, claim (including reasonable attorney's fees), loss, costs or repairs,
to the Building, Premises or Tenant's property located within the Premises, or
the Project, or to the Tenant's business operation conducted from the Premises,
or bodily injury, occasioned by Landlord's negligence, misconduct or breach of
the provisions contained herein this SECTION 5. Tenant accepts the Premises in
its AS IS condition.
6. ACCESS. Landlord shall at all times operate and maintain the Project
in accordance with standards consistent with the standards of a Wauchula,
Florida First Class Office Building. Landlord will furnish the Project and
Premises, as part of Operating Costs, all utilities, services, maintenance,
repairs, heating and air conditioning, repair, trash removal, bulb and ballast
replacement, pest control and other services as may be required to maintain the
Project and Premises in a First Class manner and for the comfortable use and
occupancy of the Premises.
(a) ACCESS. Access to the Building and the Premises shall be
provided by the Landlord, at all times and at no additional expense to
the Tenant, twenty four (24) hours a day, seven (7) days a week, three
hundred sixty five (365) days a year, with all utilities, elevators,
and other facilities and services necessary to provide said access.
Access to the Building and Premises at times other than normal
business hours and holidays (the Building Hours and Holidays are
described and fisted on EXHIBIT D attached hereto) shall be provided
by key, card access or other means acceptable to the Tenant. Landlord
shall provide the Tenant with a sufficient number of keys, access
cards or other devices as required to allow the Tenant and the
Tenant's employees access as provided herein. In the event the
Landlord changes, modifies or otherwise alters the means of access
after the
3
7
Commencement Date, then in such event the Landlord shall provide the Tenant
with replacement keys, access cards or other devices as required at no
additional cost to the Tenant.
(b) JANITORIAL SERVICE. Tenant shall provide its own janitorial
service for the Premises.
(c) GUARD SERVICE. N/A
(d) ADDITIONAL SERVICES. If Tenant shall require air
conditioning, heating, or trash removal outside of the Building's
normal business hours which are not included in its electrical and
janitorial service, Tenant will advise Landlord of such requirement
and shall pay to Landlord an amount equal to Landlord's direct cost
for such additional service. If more than one tenant requires this
additional service at the same time, Tenant shall be charged only the
Tenant's pro-rata share of Landlord's cost of such additional service.
(e) ELECTRICITY. Landlord may at its own expense install separate
electric meter(s) for the Tenant. If such separate meter(s) are
installed, Tenant shall pay its electric charges directly to the
company providing the service or in the case of submeter, to the
Landlord as additional rent. Upon the happening of such an event,
Operating Cost shall be modified so as to exclude any charge for
electrical services to Tenant's Premises, and shall exclude any charge
for electrical services provided to the Premises of any other tenants
of the Project.
(f) SERVICE INTERRUPTION. For purposes of this Lease, the term
"QUALIFIED SERVICE INTERRUPTION" shall mean an interruption of the
facilities, utilities, and services set forth above in this SECTION 6
which renders the Premises (or material portion thereof) untenantable
for the purposes for which it is then being used and which
interruption was not caused by any act or event beyond the reasonable
control of Landlord, or the act or omission of Tenant, its employees,
agents or contractors. Upon the occurrence of a Qualified Service
Interruption, the Tenant shall have the right to give written notice
as provided herein and in SECTION 49 ("Tenant's Notice") to Landlord
with copies to the party holding the first lien mortgage on the
Project at such mortgagee's address provided to Tenant and to the
Property Manager, which notice shall indicate the specific nature of
the problem and shall include the following language in bold-face
type; "IF LANDLORD SHALL FAIL, TO COMMENCE CURATIVE ACTION WITHIN
TWENTY FOUR (24) HOURS, TENANT AT ITS OPTION SHALL HAVE THE RIGHT TO
EXERCISE ITS REMEDIES UNDER THE LEASE, INCLUDING SELFHELP."
Notwithstanding anything else contained herein, for the purpose of the
Tenant's Notice in the event of and only in the event of a Qualified
Service Interruption, the curative period described herein shall not
commence until such time as the Tenant's Notice is given by the Tenant
to the Landlord and other parties designated herein during normal
business hours. If, within a period of TWENTY FOUR (24) hours after
Landlord's receipt of Tenant's Notice, Landlord fails to commence
action to correct such Qualified Service Interruption or thereafter
fails to diligently pursue such correction until such Qualified
Service Interruption is cured, then Tenant shall be entitled to the
following remedies and all other remedies at law or in equity; (i)
institute legal proceedings against Landlord for specific performance
of Landlord's obligations; or (ii) Tenant may commence and prosecute
such steps as may be necessary or proper to correct such Qualified
Service Interruption, in which case Landlord shall reimburse Tenant
within TEN (10) business days after receipt of demand and copies of
appropriate supporting documentation, all funds expended by Tenant in
curing such failure, and all of "TENANT'S RELOCATION COSTS", together
with interest thereon at the Default Rate until paid from the date of
expenditure by Tenant. As used herein "TENANT'S RELOCATION COSTS"
shall mean all funds expended by Tenant for relocation and moving
expenses (if any were necessary, including without limitation
furniture, data, telecommunications, etc.), and any excess rental paid
by the Tenant as a
4
8
result of such relocation. Landlord acknowledges that it is in the best
interest of Tenant to remain open for business, and Tenant in curing any
Qualified Service Interruption or relocating may be required to pay whatever is
necessary to expedite the curing of a Qualified Service Interruption or
relocating. If Landlord shall fail to pay such amounts to Tenant when due,
Tenant shall have the right of set-off as provided in SECTION 33 hereof. If the
Qualified Service Interruption continues for a period of THREE (3) or more
consecutive business days after Landlord's receipt of Tenant's Notice, Tenant
shall be entitled to abatement of Rent as to any portion or portions of the
Premises that are untenantable due to such Qualified Service Interruption until
such time as such portion or portions are again rendered tenantable. Such
abatement shall commence on the FOURTH (4TH) business day after Landlord's
receipt of Tenant's Notice and shall continue until the space is again
tenantable; and if the Qualified Service Interruption is of such a nature and
duration as to constitute constructive eviction under applicable law, Tenant
may terminate the Lease (and such right of termination shall exist even if
Tenant had the right to exercise self-help as provided herein but elected not
to do so); if Tenant is entitled to and does in fact terminate this Lease
pursuant to this option, Tenant shall be entitled to recover from Landlord all
amounts owed by Landlord pursuant to this Lease as of the date of termination
and Tenant's Relocation Costs, together with interest thereon at the Default
Rate from the date expended by Tenant. If the Qualified Service Interruption is
not within the Tenant's ability to correct; or the costs to correct the
Qualified Service Interruption, plus projected Tenant's Relocation Costs, would
exceed TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) and Tenant elects not to
expend such amount in pursuing its self-help remedy as herein provided, then in
any such event Tenant shall be entitled to recover from Landlord the Tenant's
Relocation Costs, together with interest thereon at the Default Rate from the
date expended by Tenant. If Landlord fails to pay Tenant's Relocation Costs as
required hereby within TEN (10) business days after receipt of request from
Tenant together with copies of appropriate supporting documentation, Tenant
shall be entitled to set-off pursuant to the provisions of SECTION 33 hereof.
7. OPERATING COSTS - DEFINED. The term "OPERATING COSTS" as used herein
shall only mean the cost of utilities for the Project unless separately
metered.
8. OPERATING COSTS -PAYMENT. During the initial Ten (10) year Term of
this Lease, and any Renewal Terms as defined in SECTION 14 thereof, Tenant
shall pay to the Landlord in addition to the Net Rents described in SECTION 4,
plus applicable sales tax, the Tenant's pro-rata share of the total Operating
Costs of the Project, as defined in paragraph seven. Tenant's pro-rata share is
approximately 59.40%. The term "INITIAL OPERATING COST" is defined as that
amount which shall be paid by Tenant toward Tenant's share of Operating Cost
during the FIRST (1ST) calendar year of occupancy. For purposes of this Lease,
INITIAL OPERATING COST PER SQUARE FOOT" is $___________ per square foot of net
rentable area for calendar year 1998. Landlord represents that such amount is a
reasonable and fair estimate. The term "FIRST CALENDAR YEAR OF OCCUPANCY" shall
mean the calendar year in which the Commencement Date occurs. The term "ACTUAL
OPERATING COST", as used herein with respect to any calendar year of the Term,
shall refer to the Operating Cost for such year, as computed pursuant to
SECTION 8-(A), the statement of which shall be prepared by an independent
certified public accountant.
(a) Landlord shall within the period of NINETY (90) days after
the close of the FIRST (1ST) calendar year of occupancy give Tenant a
statement of such year's Actual Operating Cost based on an audit
prepared by an independent certified public accountant, together with
a comparison of the same with the Initial Operating Cost. A lump sum
payment will be made from Landlord to Tenant or from Tenant to
Landlord, as appropriate, within THIRTY (30) business days after
delivery of the aforedescribed statement equal to the product obtained
by multiplying the difference between "ACTUAL OPERATING COST PER
SQUARE FOOT" and the Initial Operating Cost Per Square Foot of net
rentable area, as set forth in SECTION 8 herein, times the net
rentable area of the Premises. "ACTUAL OPERATING
5
9
COST PER SQUARE FOOT", as used herein, means Actual Operating Cost for
the Project divided by the total net rentable area in the Project. If
Landlord shall fail to pay when due any lump sum payment owed by
Landlord to Tenant, Tenant shall have the right to set-off the amount
due in accordance with the provisions of SECTION 35 hereof.
(b) The term "PROJECTED OPERATING COST PER SQUARE FOOT" as used
herein with respect to any calendar year after the FIRST (1ST)
calendar year of occupancy, shall refer to the estimate of Operating
Cost for such year computed on the basis of square footage of net
rentable area within the Project.
(c) For each year during the Term of this Lease following the
FIRST (1ST) calendar year of occupancy, Landlord shall, prior to
DECEMBER 1ST of such year, provide TENANT with the Projected Operating
Cost Per Square Foot for the next calendar year, which estimate shall
be prepared by Landlord utilizing the latest information available,
such amount shall not exceed the Actual Operating Cost Per Square Foot
for the prior calendar year by more than seven percent (7%).
Thereafter, Tenant shall pay the Projected Operating Cost for such
year, subject to the seven percent (7%) annual cap on increases,
computed on the basis of square footage of net rentable area within
the Premises, in the manner and at the times set forth above.
Notwithstanding the foregoing, Tenant's pro rata share of the Actual
Operating Cost Per Square Foot utilized herein may not increase more
than seven percent (7%) in excess of the amount for the prior calendar
year.
(d) For each year during the Term of this Lease following the
first calendar year of occupancy and within NINETY (90) days after the
close of each calendar year following the FIRST (1ST) calendar year of
occupancy, Landlord shall provide Tenant a statement of the Actual
Operating Cost for such year based on an audit prepared by an
independent certified public accountant, together with a comparison of
the same with the Projected Operating Cost of such year. A lump sum
payment will be made from Landlord to Tenant or from Tenant to
Landlord, as appropriate, within THIRTY (30) business days after
delivery of the aforedescribed statement. If Landlord shall fail to
pay when due any lump sum payment owed by Landlord to Tenant, Tenant
shall have the right to set-off the amounts due in accordance with the
provisions of SECTION 35 hereof. Notwithstanding any other provision
herein to the contrary, the Landlord's right to recover additional
Operating Costs as herein provided in this SECTION 8-(D), shall be
limited to a period of THREE (3) years after the close of the
applicable calendar year.
(e) Should this Lease commence or terminate at any time other
than the first (1st) day of a calendar year, the adjustment of any
difference between Actual Operating Cost and either (i) Initial
Operating Cost, in the case of the year in which the Commencement Date
occurs, or (ii) the Projected Operating Cost, in the case of the year
of termination, as provided in SECTION 8-(A) and SECTIONS 8-(C) and
8-(D), respectively, shall be calculated by using in such calculations
a fraction, the numerator of which is the number of days of the Term
timing the commencement or termination year, as the case may be, and
the denominator of which is 365.
(f) N/A
(g) Tenant at its expense shall have the right at all reasonable
times to audit Landlord's books and records relating to items
affecting Operating Costs as to this Lease for any calendar year;
provided that (i) Tenant's right to audit with respect to any calendar
year shall expire THREE (3) years after Landlord has furnished to
Tenant a statement of Actual Operating Cost (except to the extent that
TENANT has sent a written request for such audit within the THREE (3)
year period); and (ii) any such audit must be commenced and completed
within NINETY (90) business days after Tenant has requested the audit
in writing and (iii) the audit must be conducted during normal
business hours and in a manner that will cause minimum disruption to
Landlord. If it is finally determined by agreement of the parties or
Arbitration,
6
10
as provided in SECTION 34, that in any statement Landlord delivered to
Tenant pursuant to this XXXXXXX 0, Xxxxxxxx overstated Tenant's share
of Operating Costs by more than FIVE PERCENT (5%) and Tenant paid such
overstated amount, Landlord shall reimburse Tenant for the reasonable
cost of the audit and the amount of the excess paid by Tenant toward
Operating Cost, within TWENTY (20) business days after demand by
Tenant, together with interest at the Default Rate from the date of
such demand by Tenant until the date when payment has been made. If
Landlord shall fail to pay such amount when due, Tenant shall have the
right of set-off in accordance with the provisions of SECTION 33
hereof.
9. CARE OF THE PREMISES. Tenant shall keep the Premises in good, clean
and sanitary condition during the Term, and any Renewal Terms(s) hereof,
however, Tenant shall provide itself with its own customary and usual
janitorial service. Tenant shall not commit or allow any waste or damage to be
committed on the Premises. Tenant shall promptly repair any damage done to
Premises and to the Building, or any part thereof, caused by Tenant or Tenant's
agents or employees. If Tenant fails to commence such repairs or replacements
within TEN (10) business days after notice from Landlord, Landlord may, at its
option, make the repairs or replacements, and Tenant shall pay the costs
thereof to the Landlord within TEN (10) business days of Landlord's demand
therefor. Tenant shall not make or allow to be made any structural alterations,
renovations or remodeling of the Premises, except as provided herein, without
the prior written consent of the Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. At the conclusion of the Term,
Tenant shall return the Premises to Landlord broom-clean and in as good
condition as when possession was delivered to Tenant, ordinary wear and tear
excepted. Tenant shall have the right, but not the obligation, upon termination
of the Lease, to remove Tenant's Property, as defined herein, provided that the
Premises are restored to as good an order and condition as at the Lease
commencement, subject to ordinary use and occupancy. For purposes of
definition, tenant's property, furniture and fixtures (Tenant's Property),
include, but are not limited to, office equipment, furniture, artwork, plants,
teller counters, under counters, pedestals, night depositories, shelving, vault
door(s), modular vault system(s), remote systems, security systems, closed
circuit or in-house television systems, monitoring equipment, lighting
fixtures, signs, surrounds, communication equipment, and ATM machines placed in
or on the Premises by Tenant or identified by Tenant prior to the Commencement
Date. Landlord, at Landlord's cost and expense, will make all repairs to, and
perform necessary maintenance in, to and upon the Land, parking area,
landscaping, sidewalks, curbs, exterior lighting and all other improvements
located thereon, structural, electrical and mechanical components and building
systems of the Project and Premises including, without limitation, the walls,
floors, corridors, lobbies, elevators, lighting, HVAC equipment and restrooms
which are required in the normal maintenance and operation thereof consistent
with the standards prevailing from time to time in other Wauchula Florida First
Class Buildings.
10. ENTRY BY LANDLORD. Subject to Tenant's customary security procedures
and subject to any laws or rules pertaining to or regulating banking operations
and with no less than a (24) hours notice, Landlord may enter into
and upon the Building or Premises at all reasonable business hours, an in
emergencies at all times, to make repairs, alterations, or additions to the
Building or Premises, or to show the Building or Premises to mortgagees,
insurers and prospective tenants, (But as to exhibition for leasing of the
Premises, only during the last TWELVE (12) months of the Term or after Tenant
shall fail, or elect not to exercise the Renewal Term(s) as hereinafter
defined) provided same shall not interfere with the conduct of Tenant's
business. If Landlord desires to enter into the Building or Premises other than
during normal operating hours for other than an emergency, Tenant shall have
the right to have a representative of Tenant Present at the time of entry and
the Landlord shall pay the cost thereof.
11. SIGNAGE AND GRAPHICS. Landlord and Tenant agree that throughout the
Term and any Renewal Terms of this Lease, Tenant and its permitted subtenants,
and assignees shall be provided with space on Building lobby directory(s) equal
to ONE LINE PER FIVE HUNDRED (500) square feet of net rentable area of the
Premises. Landlord shall not impose a charge or fee for future changes or
additions as may be reasonably required from time to time.
7
11
Tenant shall have the right to use its standard signs, graphics and logos
anywhere within the Premises, including the walls of the elevator lobbies where
Tenant is a full-floor tenant, and entrance doors, subject to Landlord's prior
approval as to size, esthetics, and location, which shall not unreasonably be
withheld. Landlord agrees to not disapprove any such graphics for a floor upon
which Tenant occupies the full floor if the graphics are the same as graphics
customarily used by Tenant. Any such signage will be at Tenant's expense. On any
floor of the Building on which Tenant leases less than the entire floor,
Tenant's graphics shall be consistent with the Building standard graphics.
Landlord agrees to name the Project "First Union Building", which name shall
remain in effect so long as Tenant is not in default under this Lease beyond any
applicable grace period. If Tenant changes its name from "First Union National
Bank" or in the event of a consolidation, merger, or acquisition of Tenant in
which Tenant is involved or approved sublease or assignment, Landlord agrees to
change the name of the Project to Tenant's or subtenant's or assignees new name
or the name of the surviving entity, whichever is applicable, provided, however,
that Tenant shall pay all reasonable costs associated therewith. During the
period that Tenant is entitled to have the Project identified as First Union
Building, or other name pursuant to the above provisions, the size and extent of
the signage on the exterior of the Building and on the site shall be located
approximately as shown on EXHIBIT F attached hereto, subject, however, to the
availability of all necessary governmental permits and authorizations, which
shall be Tenant's responsibility to obtain, and subject to any governmental
limitations, conditions, and requirements. The costs of signage, including
without limitation costs of designing, manufacturing, installing, and obtaining
permitting for signage shall be paid by Tenant. Tenant, at Tenant's sole cost,
shall at all times maintain all signage in good condition and repair and in
keeping with a Wauchula, Florida First Class Building.
During the period that Tenant is entitled to have the Project
identified as First Union National Bank or other name pursuant to the above
provisions, the Landlord shall not grant any other signage rights of any nature
to other tenants on the exterior of the Building or on the site or on the
exterior of any other building that may from time to time be constructed on the
Real Property of the Project.
12. PARKING. Landlord will, throughout the Term and any Renewal Term(s)
thereof, provide Tenant with twenty-five parking spaces in the parking lot. The
spaces will be located contiguous to the Building as follows: six (6) designated
and identified parking spaces for the exclusive use of Tenant's customers, with
the balance designated for the exclusive use of Tenant's employees to be located
as shown on the Site Plan (the "DESIGNATED EXCLUSIVE PARKING"). Landlord agrees
that it may not alter the parking plan, or the exclusive parking area designated
for Tenant's customers and employees, or ingress or egress to the Premises
without the prior written consent of Tenant, which such consent shall not be
unreasonably withheld. The Landlord shall use reasonable efforts to prevent the
utilization of the Designated Exclusive Parking areas by other tenants of the
Project, and/or their employees or guests, and by any other non-authorized
parties during Tenant's business hours.
13. TENANT'S RIGHT TO TERMINATE. N/A
14. RENEWAL TERMS. (a) The TENANT shall have the right to extend the Term
for up to one (1) additional term of Five (5) years (the "RENEWAL TERM(S)") upon
the terms and conditions as provided herein and upon notice to the Landlord in
writing at least six (6) months prior to the end of the Term or any subsequent
Renewal Term, as the case may be (the "RENEWAL NOTICE"). The Renewal Notice
shall serve as a renewal of this Lease for the applicable Five (5) year Renewal
Term, subject to the rentals set forth herein below. The annual Net Rent Rate
for each year of any Renewal Term shall be the Net Rent Rate for the prior year
increased by the lesser of (i) five percent (5%) or (ii) the percentage change
in the CPI for the prior year.
(b) REFURBISHMENT ALLOWANCE. In the event the Tenant elects to
renew the Lease, as herein provided in this SECTION 14, the Landlord shall
provide the Tenant with an allowance of one-half of the Net Rent for the initial
year of the Renewal Term (the
8
12
"REFURBISHMENT ALLOWANCE") which shall be used by the Tenant for redecorating,
renovations, or other improvements to the Premises as deemed necessary by the
Tenant. The Refurbishment Allowance shall be paid to the Tenant on the first day
of the first month of the Renewal Term. If Landlord fails to pay such amount as
and when requested, Tenant shall be entitled to a right of set-off in accordance
with SECTION 33 hereof.
15. ASSIGNMENT AND SUBLETTING. Except as otherwise permitted herein this
SECTION 15, TENANT shall not, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned, or delayed, (i)
assign or otherwise transfer this Lease or any interest hereunder, by operation
of law or otherwise, or (ii) sublet the Premises or any part thereof (all of the
foregoing are hereinafter sometimes referred to collectively as "TRANSFERS" and
any person or entity to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a "TRANSFEREE"). If Tenant shall desire
Landlord's consent to any Transfer, Tenant shall request Landlord's approval in
writing, which request shall include; (iii) the proposed effective date (which
shall not be less than THIRTY (30) business days after Tenant's Notice), (iv)
the portion of the Premises to be Transferred (hereinafter called the "SUBJECT
SPACE"), (v) the name and address of the proposed Transferee, and (vi) the
nature of such Transferee's business and proposed use of the Subject Space.
Landlord shall have a period of TEN (10) business days after receipt of Tenant's
request for approval of a Transfer and all information required herein within
which to advise Tenant in writing whether Landlord has granted or denied consent
to the Transfer. Any Transfer made without complying with this Subsection shall,
at Landlord's option, be null, void and of no effect.
(A) CONTROLLED PARTIES; MERGERS. Notwithstanding any provision
contained in this Lease to the contrary, 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 15, Landlord shall
recapture the proposed Divestiture Space not earlier than 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.
Notwithstanding any provision contained in this Lease to the contrary,
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 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.
16. ALTERATIONS, IMPROVEMENTS, MECHANIC'S LIENS. All additions,
alterations, improvements and fixtures (except Tenant's Property as described in
SECTION 9), in or upon the Premises, whether placed there by Tenant or by
Landlord, shall become
9
13
Landlord's property and shall remain upon the Premises at the termination of
this Lease by lapse of time, or otherwise, without compensation or allowance or
credit to Tenant. After the Commencement Date, Tenant shall not make additions,
changes, alterations or improvements to the Project other than alterations,
improvements and decorations costing more than ONE HUNDRED THOUSAND DOLLARS
($100,000) in the aggregate, without the prior written consent of Landlord. Even
if Landlord's consent is not required, Tenant shall give Landlord prior written
notice specifying any work to be done. If Landlord's consent is required,
Landlord shall not unreasonably withhold, condition or delay its consent if in
Landlord's reasonable opinion such changes; (i) will not materially and
adversely affect the Building systems or any structural components of the
Building and (ii) will not be visible from the exterior of the Building. If
Landlord grants its consent, which consent shall not be unreasonably withheld,
conditioned or delayed, Landlord may impose reasonable requirements as a
condition of such consent including without limitation the submission of plans
and specifications for Landlord's prior written approval, obtaining necessary
permits, obtaining insurance and prior approval of contractor. All work shall
be performed in a good and workmanlike manner and shall be in accordance with
plans and specifications (approved by Landlord if approval is required by the
above provisions). If any of such work may affect the structure of the Project
or interfere with building systems, Landlord may require that such work be
performed under Landlord's supervision, at Landlord's sole cost and expense. In
no event shall Tenant have the right to create, or permit there to be
established, any mechanic's, materialmen's or other lien or encumbrance of any
nature against Landlord's interest in the Project for improvements made by or
for Tenant. Any lien filed by any contractor, materialman or supplier performing
work by or for Tenant shall attach only to Tenant's interest in the Premises or
against the Project for work claimed to have been furnished by or for Tenant
shall duly be discharged or bound by Tenant within twenty (20) business days
after Tenant receives notice of the filing of the lien.
17. COMMUNICATIONS EQUIPMENT. Subject to Landlord's review and prior
written approval, which consent shall not be unreasonably withheld, conditioned
or delayed, TENANT shall at all times during the Term of this Lease and any
Renewals thereof, have the right to use the Building's shafts for conduits
between the Premises and the roof of the Building for the installation and
maintenance of conduits and cables to extend to communications equipment located
or to be located on the roof. Further, subject to Landlord's prior written
approval (not to be unreasonably withheld) of the size, location and the plans
and specifications therefor, Tenant shall have the right at all times, and at no
additional rental, to install and operate microwave or satellite dishes or other
antenna communications system on the roof of the Building. The use of such
conduits and roof for communications equipment by Tenant is included in the
definition of the Premises. No additional rent or expense may be charged to
Tenant for the use of such conduits and roof for communications purposes.
Landlord's approval rights may include without limitation, review and approval
of all plans and specifications for the equipment, procedures and personnel with
respect to installation, maintenance, and operation. Use of such roof space
shall be subject to Tenant's obtaining such insurance coverage as Landlord shall
reasonably require. At the expiration or earlier termination of the Lease,
Tenant, at its expense, shall remove the communications equipment. Any work
required to restore the roof or any other part of the Building from any damage
occasioned by the installation, maintenance or removal of the communications
equipment shall be borne by Tenant. Tenant shall indemnify and hold harmless
Landlord from all costs, damages expenses, liabilities, and suits, including
reasonable attorneys' fees, occasioned by Tenant's installation, maintenance,
removal or use of the communications equipment, including without limitation,
any damage to Property and/or injury or death to persons caused thereby from the
installation, maintenance, and operation. The installation, maintenance,
relocation, and removal of the communications equipment will be performed in
such a manner as not to interfere with the operation of the Project and in a
manner that will not cause interference with the use of other tenants in the
Project of their electronic devices that were installed prior to Tenant's
installation. Landlord agrees that Landlord will require other tenants who sign
leases after the date hereof and who install communications equipment after
Tenant's installation, to install, maintain and operate such equipment in a
manner that will not interfere with Tenant's use and operation of its
communications equipment. All
10
14
then installed communications equipment shall be maintained by the Tenant at
Tenant's sole cost and expense in good and safe condition. The communications
equipment shall be used solely by Tenant in the ordinary course of its business,
and Tenant shall not allow any parties other than Tenant and Tenant's Controlled
Parties to use such equipment. If any repair or maintenance to the Building
necessitates moving or relocating Tenant's communication equipment, Tenant
shall, at Landlord's sole cost and expense and not as part of Operating Cost,
relocate the equipment to a new location designated by Landlord, provided that
the new location will not adversely affect the manner in which such equipment
operates.
18. AUTOMATED TELLER MACHINE(S); NIGHT DEPOSITORY(IES). Tenant shall have
at all times during the Term and Renewals thereof, the right to install and
maintain at its expense an automated teller machine(s) ("ATM(S)") and night
depository(ies) within the Premises or other portion of the Project accessible
at all times by the public, and visible to the exterior of the Building at no
additional rental charge. Landlord agrees that during the Term, including any
Renewal Term(s), Landlord shall not lease, or permit the installation of, any
other ATM(s) and night depository(ies), by any party other than the Tenant in
any portion of the Building or Project. The location, appearance and lighting of
the ATM(s) and night depository(ies) shall be mutually agreed upon by Tenant and
Landlord, which such agreement shall not be unreasonably withheld, conditioned
or delayed. At the expiration or earlier termination of the Lease, Tenant, at
its expense, shall remove the ATM(s) and/or night depository(ies). Any work
required to restore the Building from any damage occasioned by the installation,
maintenance, relocation or removal of the ATM(s) and/or night depository(ies)
shall be borne by Tenant. Tenant shall indemnify and hold harmless Landlord from
all costs, damages, expenses, liabilities, and suits, including reasonable
attorneys' fees, occasioned by Tenant's installation, maintenance, relocation,
removal or use of the ATM(s) and/or night depository(ies), including without
limitation, any damage to Property and/or injury or death to persons caused
thereby from the installation, maintenance, and operation. Notwithstanding the
foregoing, the Landlord is responsible for maintenance of lighting, landscaping
and access to, from and around the ATM(s) and the Landlord shall at all times
comply with the requirements of Sections 655.960 through 655.965 of Florida
Statutes (1993) inclusive and shall indemnify and hold harmless the Tenant from
all costs, damages, expenses, liabilities, and suits, including reasonable
attorneys' fees, including without limitation, any damage to Property and/or
injury or death to persons caused by the Landlord failure to comply with said
Statutes, unless the loss resulted from modifications to the ATM made by Tenant.
19. TENANT IMPROVEMENTS. Except for those items of Landlord's
responsibility as provided in SECTION 5, Tenant shall be responsible for and pay
all costs thereof, any demolition of the Premises and for construction of any
tenant improvements deemed necessary by Tenant in accordance with the Tenant
Space Plan and Tenant Working Drawings as defined in EXHIBIT G attached hereto.
All currently existing tenant improvements as of the date of Lease execution
that are owned by Landlord and located in the Premises, including without
limitation, doors, lights, glass, HVAC duct work and equipment, built-in storage
and lateral files, banking equipment, vaults, vault doors, etc., may at Tenant's
option be used by Tenant during the entire Term and any Renewal(s) thereof,
without charge.
20. LEGAL USE; HAZARDOUS MATERIALS. Tenant agrees not to occupy or use, or
knowingly permit any portion of the Premises to be occupied or used for any
business or purpose which is unlawful or disreputable. Tenant shall not cause or
knowingly permit any Hazardous Material (as hereafter defined) to be brought
upon, kept, or used in or about the Project by Tenant, its agents, or employees
without the prior written consent of Landlord, except for items customary for
normal office use, which shall be used in compliance with all legal
requirements. As used herein, the term "HAZARDOUS MATERIAL" means any hazardous
or toxic substance, materials, and wastes listed in the United States Department
of Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as Hazardous substances (40 CFR Part 302) and
amendments thereto, or any other toxic, hazardous or potentially harmful
substances, materials and wastes that are or become regulated under any
applicable local, state or
11
15
federal law. If Tenant breaches the obligations stated in the preceding
sentence, or if the presence of Hazardous Material on the Project caused or
permitted by Tenant results in contamination of the Project, or if contamination
of the Project by Hazardous Material otherwise occurs for which Tenant is
legally liable to Landlord for damage resulting therefrom, then Tenant shall
indemnify and hold Landlord harmless from any and all claims, judgements,
damages, penalties, fines, costs, liabilities or losses which arise during the
Term, or any Renewal Term, of this Lease as a result of such contamination.
(A) LANDLORD'S COVENANT. Landlord represents that to the
Landlord's best knowledge, except as disclosed in writing by Tenant,
the former owner of the Project, 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, judgements, damages, penalties, fines,
costs (including reasonable attorneys' 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 after July 1, 1998, 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 responsibility and may not be
included as part of Operating Cost. 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. If the Landlord shall fail
to pay when due any sums owed by the Landlord to the Tenant, Tenant
shall have the right to set-off all amounts due in accordance with the
provisions of SECTION 33 hereof.
21. LAWS AND REGULATIONS; RULES OF PROJECT. Tenant agrees to comply with
all laws, ordinances, orders, rules and regulations (state, federal, municipal
and other agencies or bodies having any jurisdiction thereof) relating to the
use, condition or occupancy of the Premises by Tenant as a Tenant. Tenant will
comply with the initial rules and regulations of the Project which are attached
hereto as EXHIBIT H and, after receipt thereof, with such reasonable additional
rules and regulations as my be adopted or altered by Landlord from time to time
for the safety, care, reputation and cleanliness of the Premises and the Project
and for preservation of good order therein; provided, however, that to the
extent that any such additional rules and regulations contradict the express
provisions of this Lease, the Lease shall govern. All reasonable modifications
of the initial rules and regulations and all additional rules and regulations
adopted by Landlord will be non-discriminatory as to all space in the Project
and will be furnished by Landlord to Tenant in writing and shall thereafter be
carried out and observed by Tenant, provided the same shall not contradict the
terms of this Lease. Landlord shall enforce the rules and regulations of the
Project as to all tenants of the Project. Landlord agrees that if Landlord is in
material violation of any applicable governmental law, rule, or regulation and
such violation causes material interference with Tenant's use of the Premises,
Landlord shall cure such violation or otherwise eliminate the material
interferences, including contesting same with Tenant's use of the Premises.
Landlord shall indemnify and hold Tenant harmless from all claims, judgements,
damages, penalties, fines, costs (including reasonable attorney's fees), or
costs incurred to bring the
12
16
Project, excluding the interior of the Premises, into compliance with the
Americans with Disabilities Act of 1990 ("ADA") as of the Execution Date of this
Lease. The cost of any changes required will constitute Capital Improvements and
as such, may not be amortized and included as part of Operating Costs. To the
extent that changes in the ADA or interpretations thereof occur subsequent to
the Execution Date of this Lease, any changes mandated to the Project, excluding
the interior of the Premises, will be the responsibility of the Landlord. The
cost of changes will constitute capital improvements and as such may not be
amortized and included as part of Operating Costs.
22. NUISANCE. Tenant agrees to conduct its business and control its agents
and employees in such manner as not to create any nuisance, or interfere with,
annoy or disturb any other tenant or Landlord in its operation of the Project.
23. QUIET ENJOYMENT. Landlord covenants and agrees, provided Tenant pays
all Rent and performs the terms and conditions of this Lease as and when
required, to take all necessary steps to secure to Tenant and to maintain for
the benefit of Tenant the quiet and peaceful possession and enjoyment of the
Premises and parking rights on the Project, for the term hereof, without
hindrance or molestation by Landlord or any other person claiming title to the
Premises or the Project or any part thereof, and Landlord agrees to warrant and
forever defend Tenant's interest under this Lease against the claims of any and
all persons other than those claiming by, through or under Tenant.
24. INSURANCE. Landlord and Tenant may maintain such deductibles on their
respective insurance coverages applicable to the Premises and/or the Project as
each shall deem prudent in their reasonable business judgement. Further, Tenant
may satisfy some or all of such insurance coverage requirements by self
insurance. Landlord and Tenant shall each be provided by the other with
certificates from their respective insurers, evidencing the insurance coverages
required by this Lease (including a confirmation that waiver of subrogation
applies, if such is the case) prior to the Commencement Date, and at each policy
anniversary, and upon written request from time to time by either Landlord or
Tenant as applicable. In the event that Tenant or Landlord shall fail to procure
any contract of insurance required under the terms hereof or any renewal of or
replacement for any contract of insurance that is expiring or has been canceled,
Tenant or Landlord as the case may be, may, but shall not be obligated to,
procure such insurance on behalf of the Tenant or Landlord and the cost thereof
shall be payable to Landlord as an item of Additional Rent within FIVE (5)
business days following written demand therefor, or in the case of the Tenant
securing such insurance, deducted from Operating Costs paid by the Tenant.
(A) LANDLORD'S INSURANCE. Landlord shall maintain casualty
insurance coverage on the Project and leasehold improvements for their
full replacement value. Landlord shall also maintain commercial general
liability insurance, such insurance to insure against liability for
bodily injury and death and for property damage in such amount as may
from time to time be deemed appropriate by Landlord in its reasonable
judgement, but in any event not less than $5,000,000 combined single
limit on a per occurrence basis. Said insurance shall be maintained
with an insurance company licensed or authorized to do business in
Florida, and having a rating issued by an organization regularly
engaged in rating insurance companies (including specifically A.M. Best
and Company so long as such company is engaged in rating insurance
companies) of not less than a rating of A, VII of A.M. Best and Company
(or equivalent rating if another rating service is used). If there are
no insurance companies or only one insurance company that satisfy(ies)
the foregoing rating requirement, then the insurance company issuing
the insurance shall be a company having a rating equal to the next
highest rating classification in which at least two insurance companies
satisfy the rating requirement. Payments for losses thereunder shall be
made solely to Landlord and Mortgagee. All insurance contracts that
Landlord is required to maintain under this Lease shall contain a
provision that they shall not be subject to cancellation, non-renewal
or material reduction in coverage as to the Project unless Tenant shall
be served with a written notice not later than THIRTY (30) days prior
to cancellation,
13
17
non-renewal or material reduction in coverage." A "MATERIAL REDUCTION
IN COVERAGE" shall mean a change from "ALL-RISK" casualty insurance
coverage or a material increase in deductible.
(B) TENANT'S INSURANCE. At all times during the Term of this Lease
and any renewals thereof (and in the event Landlord grants permission
to Tenant to enter the Premises for any reason prior to the
Commencement Date including any period in which Tenant is constructing
leasehold improvements and other Tenant work, then from such earlier
date), Tenant shall provide and thereafter keep in full force and
effect (i) Commercial general liability insurance, such insurance to
insure against liability for bodily injury and death and for property
damage in an amount as may from time to time be reasonably required by
Landlord, but in any event not less than $5,000,000 combined single
limit on a per occurrence basis, provided, however, that Landlord may
never require Tenant to carry more than the amount which Landlord
maintains for such coverage, (ii) Workmen's compensation as required by
law providing statutory Florida State benefits for all persons employed
by Tenant in connection with the Premises and (iii) Builder's Risk
Insurance during all periods in which Tenant is constructing
alterations or Tenant work, in such amounts as Landlord and Tenant
mutually agree is reasonable. All insurance that Tenant shall be
required to effect pursuant to this SECTION 24 shall, to the extent
Tenant is not self insured, be underwritten by insurance companies that
are licensed or authorized to do business in the State of Florida,
shall be in good standing with the Florida State Insurance Department,
and shall have a rating issued by an organization regularly engaged in
rating insurance companies (including specifically A.M. Best & Company
so long as such company is engaged in rating insurance companies) or
not less than a rating of A, VII of A.M. Best and Company (or
equivalent rating if another rating service is used). If there are no
insurance companies or only one insurance company that satisfy(ies) the
foregoing requirement, then the insurance company issuing the insurance
shall be a company having a rating equal to the next highest rating
classification in which at least two insurance companies satisfy the
rating requirement. All insurance contracts that Tenant is required to
maintain under this Lease shall be issued for terms of not less than
one year and shall contain a provision that they shall not be subject
to cancellation, nonrenewal or material reduction in coverage as to the
Premises unless Landlord shall be served with a written notice not
later than THIRTY (30) days prior to cancellation, nonrenewal or
material reduction in coverage; for purposes of the foregoing,
"MATERIAL REDUCTION IN COVERAGE" shall mean change from "ALL-RISK"
casualty insurance coverage, or a material increase in deductible. With
respect to liability for which Tenant has indemnified Landlord
hereunder, all such policies shall be primary and shall be payable by
the insurers prior to payment by any insurers who have issued coverage
to Landlord for the same casualty or liability.
25. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives any and
all rights of recovery, claim, action or cause of action against the other, its
partners, agents, officers, or employees, for any loss or damage that may occur
to persons, property, the Premises or the Building by reason of fire, the
elements, or any other cause(s) which are insured against regardless of cause or
origin, to the extent of such insurance coverage. This waiver shall be
applicable only if the same does not violate the terms of the insurance policies
carried by each which insure against such loss or damage. Each party agrees to
use its best efforts to obtain a waiver of subrogation endorsement on its
insurance policies provided the same can be obtained without additional premium.
If such endorsement can only be obtained with the payment of an additional
premium, the party whom the endorsement benefits may at its option pay such
addition premium, in which event the endorsement shall be obtained
notwithstanding the additional premium.
26. CASUALTY DAMAGE. If the Project, the Building, or any systems serving
the Building or the Premises, are damaged by fire or other casualty
("Casualty"), then the Landlord shall within THIRTY (30) days of such casualty
notify the Tenant (the "LANDLORD'S NOTICE") whether or not in the reasonable
determination of the Landlord the damage can
14
18
be repaired within ONE HUNDRED EIGHTY (180) days of such notice (the
"RESTORATION PERIOD"). If repairs and restoration cannot be completed within the
Restoration Period, either party may at its option within THIRTY (30) days of
the receipt of the Landlord's Notice, terminate this Lease effective as of the
date of the casualty and all rents, Operating Costs or other sums due shall be
prorated as of that date. If the repairs and restoration can be accomplished
within the Restoration Period, or if the repairs cannot be done within the
Restoration Period and neither party chooses to terminate this Lease, the
Landlord shall within THIRTY (30) days from the date of the Landlord's notice,
commence the repairs and restoration and proceed with all due diligence to
restore the Project or the Building or the Premises to substantially the same
condition in which it was immediately prior to the happening of the Casualty. As
soon after the Landlord commences the repairs and restoration as is practical,
the Tenant shall commence and pursue to completion the repair and restoration or
replacement of Tenant's fixtures and personalty. Each party shall proceed with
their respective work in a timely and diligent manner using the same or better
quality materials as existing prior to the Casualty, and they shall use their
best efforts not to interfere with, annoy, or inconvenience the other party. For
such period of time as the Tenant cannot conduct its business from the Premises
in a reasonable, prudent and businesslike manner as a result of the condition of
the Project or the Premises, or the Building or the services to the Building, or
caused by an interruption thereof because of reconstruction activities, all Rent
shall xxxxx. To the extent and during the time that only a portion of the
Premises is tenantable and to the extent that the Tenant is able to conduct its
business therefrom in a reasonable, prudent and businesslike manner, the Tenant
shall receive a fair diminution of Rent based on an estimated percentage of
unusable space in the Premises. In the event the Landlord fails to deliver to
the Tenant a Landlord's Notice within the required THIRTY (30) day period as to
whether or not the damage can be repaired within the Restoration Period, the
Tenant shall have the right any time after the expiration of the THIRTY (30) day
notice period to terminate the Lease as of the date of the Casualty, or to
advise the Landlord of its intent to restore the Project or the Building or the
Premises (the "TENANT'S NOTICE") and may commence the repairs and restoration of
the Project or the Building or the Premises at the cost and expense of the
Landlord, whereupon the Landlord shall be deemed to have waived its right to
terminate this Lease as provided above. The Landlord shall reimburse Tenant
within TEN (10) business days of demand for all costs and expenses of any kind
incurred by the Tenant to make repairs or restorations. If the Landlord shall
fail to pay when due any sums owed by the Landlord to the Tenant, Tenant shall
have the right to set-off all amounts due in accordance with SECTION 33 thereof,
until the sums advanced by Tenant are paid in full, plus all costs of
collection, including but not limited to reasonable attorneys' fees and court
costs incurred.
27. CONDEMNATION. If all or a substantial portion of the Project or the
Premises should be taken, and/or if so much of the parking area of Land is taken
so as to reduce the parking spaces or Land available for parking to an amount
below an amount necessary to adequately serve the Tenant's needs, for any public
or quasi-public use by right of eminent domain or otherwise, or if it should be
sold in lieu of condemnation, such that the Tenant can no longer conduct its
business on a reasonable, prudent and profitable basis, the Tenant may terminate
this Lease by giving written notice of its termination to Landlord within NINETY
(90) days after such taking, in which event this Lease shall terminate as of the
date of such taking (but Tenant shall be afforded a reasonable period of time to
vacate the Premises). If any portion of the Premises shall be so taken and this
Lease is not terminated, Rent shall xxxxx as to the space so taken (i.e., the
net rentable area so taken shall be eliminated from the Premises and Tenant
shall have no obligation to pay Rent or Operating Coast as to the eliminated
space). Landlord shall thereafter commence and proceed with reasonable diligence
to restore all affected portions of the Project to a quality equal to that
existing immediately prior to such taking so as to have the restored Project
constitute an architecturally viable First Class Office Building. All proceeds
from any taking or condemnation of the Project and/or Premises shall belong to
and be paid to Landlord. Nothing contained herein, however, shall prevent Tenant
from seeking a separate award from the condemning authority for any loss of
Tenant's personal property and equipment, moving expenses, leasehold interests,
or other losses relating to Tenant's business so long as such separate award
shall not result in a reduction of proceeds payable to Landlord.
15
19
28. SUBORDINATION TO MORTGAGE. Tenant agrees that this Lease is subject and
subordinate to all mortgages which may now or hereafter affect or encumber all
or any portion of the Project and to all renewals, modifications,
consolidations, replacements and extensions thereof; provided, however, that the
foregoing provision shall only be applicable with respect to those mortgages to
which Tenant has been provided a Non-Disturbance, Subordination and Attornment
Agreement ("NON-DISTURBANCE AGREEMENT") substantially in the form of EXHIBIT C.
In confirmation of such subordination, Tenant shall join with any such mortgagee
in the execution of Non-Disturbance Agreements shall be applicable with respect
to all present and future mortgages to which Landlord requests Tenant's
execution of a Non-Disturbance Agreement. Landlord represents that the only
mortgage existing as of the date hereof is held by Wauchula State Bank. Landlord
agrees to procure and deliver to Tenant simultaneously with Landlord's execution
and delivery of this Lease a Non-Disturbance Agreement from Wauchula State Bank,
substantially in the form of EXHIBIT C hereto.
29. ESTOPPEL CERTIFICATE OR THREE-PARTY AGREEMENT. Landlord and Tenant
agree that they will from time to time upon request from each other, within
FIFTEEN (15) business days prior notice from the other, execute and deliver to
such persons as the requesting party shall request, a statement certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so modified),
stating the dates which Rent and other charges payable under this Lease have
been paid, stating that Landlord or Tenant, if applicable, is not in default
hereunder to the best of such party's knowledge after due inquiry (or if
Landlord or Tenant, if applicable have alleged a default stating the nature of
such alleged default), and further stating such other matters as the requesting
party shall reasonably require.
30. DEFAULT, REMEDIES. It shall be a default hereunder if; (i) Tenant shall
fail to pay any rent or any other sums of money within ten (10) business days
after written notice that the same is due; (H) Tenant shall fail to comply with
any other provision of this Lease and after receipt of written notice, proceed
to commence correction of any default within THIRTY (30) days after written
notice; (iii) the Premises shall be taken on execution or other process of law
in any action against Tenant; (iv) Tenant shall become insolvent or unable to
pay its debts as they become due, or Tenant notifies Landlord in writing that it
anticipates either condition; (v) Tenant takes any action to, or notifies
Landlord in writing that Tenant intends to file a petition under any section or
chapter of the National Bankruptcy Act as amended, or under any similar law or
statute of the United States or any State thereof; or a petition shall be filed
against Tenant under any such statute; or (vi) a receiver or trustee shall be
appointed for Tenant's leasehold interest in the Premises or for all or a
substantial part of the assets of Tenant and not discharged within sixty (60)
days after the appointment of a receiver or trustee. Landlord's failure to
provide timely written notice specified herein shall not constitute a waiver of
the event of default.
(a) LANDLORD'S RIGHTS ON EVENT OF DEFAULT. On the occurrence of
any Event of default, and subject to terms and conditions provide
herein, Landlord may:
(i) Without terminating this Lease and without entering
into possession of the Premises, continue this Lease in effect
and enforce all rights of Landlord and obligations of Tenant
hereunder, including the filing of suit for the collection of
monthly rent, Operating Cost, and all other sums due hereunder
as they accrue (including attorneys' fees and other damages).
Acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver upon Landlord's
initiative to protect its interest under this Lease shall not
constitute a termination of this Lease or Tenant's right to
possession hereunder;
(ii) Re-enter and repossess the Premises subject to notice
to and the rights of the FDIC and any other regulatory or
governmental agency having regulatory authority over Tenant
and any and all improvements thereon and additions thereto and
remove all persons and property therefrom either by summary
dispossess proceedings or by a suitable action or proceeding
at
16
20
law or in equity. No re-entry by Landlord shall be deemed a
termination or an acceptance of a surrender of this Lease;
(iii) Terminate this Lease and xxx Tenant for damages
hereunder which damages shall be an amount equal to (A) the
sum of all amounts due hereunder to the date of termination;
plus (B) the aggregate Net Rent remaining over the unexpired
portion of the Term plus the reasonable cost to Landlord for
any repairs and other costs of reletting, all reduced to
present value using a discount rate equal to the interest rate
of a governmental security having a maturity closest to the
then current expiration of the Term; LESS (C) the aggregate
fair net rental value of the Premises over the remaining
portion of the Term (provided, however, a reasonable period of
time, not to exceed twenty-four (24) months, may be considered
as a leasing period by which the Premises would not be leased
and therefor no income would be realized for such period.)
reduced to present value; plus (D) Landlord's costs and
expenses incurred in the enforcement hereof including
reasonable attorneys fees as herein provided;
(iv) Relet any or all of the Premises for Tenant's account
for any or all of the remainder of the term or for a period
exceeding such remainder, in which event Tenant shall pay to
Landlord, at the times and in the manner specified by the
provisions herein the Net Rent accruing during such remainder,
less any Net Rent received by Landlord, with respect to such
remainder, from such subletting, as well as the cost to
Landlord of any attorneys' fees or for any repairs or costs of
reletting or other action (including those taken in exercising
Landlord's rights under any provision of this Lease) taken by
Landlord on account of such Event of default but in no event
shall Landlord be liable in any respect for failure to relet
the Premises or in the event of such reletting, for failure to
collect the Rent thereunder any sums received by Landlord on a
reletting in excess of the Net Rent reserved for this Lease
shall belong to the Landlord;
(v) Pursue any combination of such remedies and/or any
other remedy available to Landlord on account of such Event of
Default at law or in equity;
(vi) If legal proceedings are instituted hereunder, and a
compromise or settlement thereof shall be made, it shall not
be constituted as a waiver of any subsequent breach of any
covenant, condition or agreement herein contained; and
(vii) All such remedies of Landlord shall be cumulative,
and in addition, Landlord may pursue any other remedies that
may be permitted by law or in equity. Forbearance by Landlord
to enforce one or more of the remedies herein provided upon an
event of default shall not be deemed or construed to
constitute a waiver of such default.
31. HOLDING OVER. In the event of holding over by Tenant without Landlord's
written consent, Tenant shall pay rent equal to ONE HUNDRED TWENTY PERCENT
(120%) of the applicable Rent plus other sums due from time to time hereunder
(including tenant's Proportionate Share of Operating Expenses). Possession by
Tenant after the expiration of this Lease shall not be construed to extend its
Term.
32. ATTORNEY'S FEES. In the event Tenant or Landlord defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease or in the event Landlord places the enforcement of this Lease or
the collection of any Rent due or to become due, or the recovery of possession
of the Premises in the hands of an attorney, or in the event either party files
suit against the other, with respect to the enforcement of its rights under this
Lease, Tenant and Landlord agree that the prevailing party shall be entitled to
be reimbursed by the non-prevailing party for all reasonable attorneys' fees,
17
21
expert witness fees, paralegal fees and costs incurred by the prevailing party
or as otherwise may be determined by arbitration under Section 34 hereof.
33. TENANT'S SET-OFF RIGHTS. Tenant shall have the right of set-off with
respect to amounts owed by Landlord to Tenant only if Tenant is specifically
granted set-off rights pursuant to this Lease with specific reference to SECTION
33. Where set-off rights have been granted, if Landlord fails to pay when due
the sum(s) owed by Landlord to Tenant, or sums paid by the Tenant on the
Landlord's behalf, and such failure continues for more than TEN (10) business
days (or such other period as specifically provided herein) after Landlord's
receipt of written notice of demand sum(s) due, Tenant shall have the right to
credit any such unpaid amount (plus interest at the Default Rate from the Due
Date) against rent until such unpaid amount has been fully credited; provided,
however, within the aforesaid TEN (10) business day period (or such other period
as may be specifically provided herein) Landlord gives written notice to Tenant
stating the Landlord disputes Tenant's right to payment of the amount asserted
by Tenant or any portion thereof specified by Landlord (the "DISPUTED AMOUNT")
and indicating the reasons for the dispute, Tenant shall not be entitled to
set-off the Disputed Amount until TEN (10) business days after the dispute has
been resolved pursuant to written agreement executed by both parties or pursuant
to final Arbitration as provided in SECTION 34 herein. If, upon resolution of
the dispute of any such matter (through mutual agreement or Arbitration) it is
determined that Tenant was not entitled to a right of set-off or that the amount
set-off by Tenant was greater than the amount that Tenant was entitled to
set-off, Tenant shall pay to Landlord within TEN (10) business days after the
dispute is resolved all amounts owed to Landlord together with interest at the
Default Rate from the date when due until the date that payment has been made.
Notwithstanding anything else contained here in this SECTION 33, in the event
the remaining Term of the Lease is insufficient to amortize the costs expended
by the Tenant as provided by the set-off provision in this SECTION 33, then the
Term shall be extended at the same Terms and conditions in effect at the time of
the claim an adequate period of time to allow full amortization of the costs
expended by the Tenant.
34. ARBITRATION. If a dispute arises under this Lease relative to an issue
which this Lease provides should be arbitrated, including but not limited to
appointment, valuation, rental rates for options or extension periods and
set-off provisions, and the parties to this Lease are unable to reach a mutually
acceptable resolution, the parties shall proceed to resolve the dispute in the
manner herein provided. Either party shall notify the other in writing of its
position, in the case of a monetary dispute, the amount acceptable to it. Such
notification shall also include the names and addresses of THREE (3) persons
residing in the city in which the Building is situated, any one of which is
acceptable to the notifying party to serve as arbitrator. Within TEN (10)
business days following such notifications, the party notified shall advise the
other party, in writing, of its position, and in the case of a monetary dispute,
the amount acceptable to it. Such notification shall also include the names and
addresses of THREE (3) persons residing in the city in which the Building is
situated, any one of which is acceptable to the notifying party to serve as
arbitrator. Once the parties have notified each other as provided, the written
position submitted by each party cannot subsequently be revised by the
submitting party, nor can substitutions be made to the lists of names
accompanying the notifications. If within TEN (10) days after both parties have
been notified of their respective positions, the parties are unable to reach a
mutually acceptable resolution, then the parties shall select one person from
all of the names submitted who shall be appointed as the arbitrator. If, within
the time specified, the parties are unable to mutually agree on the person to
serve as arbitrator, either party may apply to the presiding judge of the
district Court of Xxxxxx County to select the arbitrator from the list of names
initially submitted to both parties. Within FIVE (5) days following selection of
the arbitrator, each party shall furnish the arbitrator with its written
position as set forth in the notification originally furnished. Each party may
also include at this time any information, data and/or reports, supportive of
its position. The arbitrator may request additional information, data or reports
from the parties or others if the arbitrator so desires. Within TEN (10)
business days following appointment, the arbitrator shall notify both parties in
writing of the arbitrator's decision which shall be the position of one of the
parties. Such decision shall not deviate in any way from the position initially
stated by the party whose position has been selected by the arbitrator, it being
the intent
18
22
that the arbitrator shall select the position of one of the parties. If either
of the parties shall fail to furnish the arbitrator its position within the time
and in the manner as herein specified, the arbitrator shall consider such
party's position to be identical to the position of the other. The decision of
the arbitrator shall be final and shall be binding upon the parties and
effective as of the date of notification to the parties of the arbitrator's
decision. The party whose position is not selected by the arbitrator as the
decision shall promptly pay to the arbitrator the total fees and expenses of the
arbitrator.
35. ALTERATION. This Agreement may not be altered, changed or amended,
except by an instrument in writing signed by both parties hereto.
36. NO IMPLIED WAIVER. The failure of Landlord or Tenant to insist at any
time upon the strict performance of any covenant or agreement or to exercise any
option, right, power or remedy contained in this Agreement shall not be
construed as a waiver or a relinquishment thereof for the future. No payment by
Tenant or receipt by Landlord of a lesser amount than the sums due under this
Lease shall be deemed to be other than on account of the earliest sum due
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice of Landlord's right
to recover the balance of such sums or pursue any other remedy provided in this
Lease.
37. SEVERABILITY. If any Term or provision of this Lease, or the
application thereof to any person or circumstance, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such Term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
Term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
38. TIME OF PERFORMANCE. Except as otherwise expressly provided herein,
with respect to all required acts of Tenant and Landlord, time is of the essence
of this Lease.
39. COMMISSIONS. Landlord and Tenant represent and warrant to the other
that they have not dealt with any real estate broker or salesman in connection
with this Lease. Each party agrees to indemnify and hold harmless the other from
any claim made by brokers or agents who claim to act for the party sought to be
charged for a commission, compensation, brokerage fees, or similar payment in
connection with this transaction and against any and all expense or liability
arising out of any such claim.
40. ASSIGNMENT BY LANDLORD. Landlord shall have the right to Transfer and
assign, in whole or in part, all of its rights and obligations hereunder and in
the Project, and in such event and upon such Transfer (any such Transferee to
have the benefit of, and be subject to, the provisions of this Lease). No
further liability or obligation shall thereafter accrue against the assigning
Landlord hereunder upon execution of a written agreement by the Transferee to
assume all future obligations. The Transferee shall thereafter be bound to
comply with all of Landlord's obligations under this Lease thereafter accruing.
41. TENANT'S AND LANDLORD'S AUTHORITY TO EXECUTE; EFFECT. Tenant 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. Landlord represents and warrants
that this Lease has been duly authorized, executed and delivered by and on
behalf of Landlord and constitutes the valid and binding agreement of Landlord
in accordance with the Terms hereof.
42. RELATIONSHIP OF PARTIES. Nothing in this Lease to the contrary
notwithstanding, it is agreed that Tenant shall in no event be deemed to be a
partner of or engaged in a joint venture with any Associate of Landlord in the
conduct of its business, nor shall Tenant be liable for any debts incurred by
Landlord in the conduct of its business of Landlord. The relationship of the
parties during the Term shall at all times be that of Landlord and Tenant.
19
23
43. GOVERNMENT REGULATION. Notwithstanding anything elsewhere contained
herein, in the event that Tenant, or Controlled Parties as defined in SECTION
15(A) herein to whom the Lease is assigned become insolvent, bankrupt or make an
assignment for the benefit of the creditors, or taken over by, the Comptroller
of the Currency, or other bank regulatory authority, Landlord may terminate the
Lease with the concurrence of said authority or other bank regulatory authority
and any such authority shall then have the election to either continue or
terminate the Lease with the damages for that termination being limited as
provided in the next sentence. In the event this Lease is so terminated, the
maximum claim of Landlord for damages or indemnity for injury resulting from the
rejection or abandonment of the unexpired Lease shall in no event exceed an
amount equal to the rent provided by the Lease, without acceleration, for the
year next succeeding either the date of the surrender of the Premises to the
Landlord or the date of re-entry of the Landlord, whichever first occurs,
whether before or after the closing of the bank, plus an amount equal to the
unpaid rent accrued, without acceleration to such date.
44. EXHIBITS. The Exhibits attached hereto are incorporated herein and made
a part of this Lease for all purposes.
45. 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.
46. PRONOUNS. This Lease shall be binding upon and inure to the benefit of
the successors and assigns of Landlord, and shall be binding upon and inure to
the benefit of Tenant and its successors and any permitted assignee to Tenant's
interest in this Lease. The pronouns of any gender shall include the other
genders, and either the singular or the plural shall include the other.
47. JURISDICTION. This Lease is declared to be a Florida contract, and all
of the Terms hereof shall be construed according to the laws of the State of
Florida (without regard to conflicts of law).
48. NOTICES. All notices, demands, consents and approvals which may be or
are required to be given by either party to the other hereunder shall be in
writing and shall be deemed to have been fully given and received upon actual
delivery (or refusal to accept delivery) to the address of all parties
designated to receive notice as set forth below or to such other place as the
party to be notified may from time to time designate at least TEN (10) business
days notice to the other parties. Notices, demands, consents and approvals shall
be deemed properly given only by: (a) personal delivery; or (b) sent by Federal
Express or other nationally-recognized overnight delivery service; or (c)
deposit in the United States mail certified, return receipt requested with
postage prepaid. Until changed in the manner set forth above, the addresses for
notice are as follows:
IF TO LANDLORD: /s/ Xxxxx X. See
000 X. 0xx Xxx.
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
If to Mortgagee: Wauchula State Bank
000 X. Xxxx Xx.
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
20
24
IF TO TENANT: First Union National Bank
Attn: Corporate Real Estate - Property
Services Manager
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
000-000-0000 FAX 000-000-0000
with copy to: First Union National Bank
Attn: Legal Division
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000-0000
000-000-0000 FAX 000-000-0000
49. MISCELLANEOUS. This Lease contains the entire Agreement between the
parties hereto and all previous negotiations leading thereto. Tenant
acknowledges and agrees that Tenant has not relied upon any representations or
any prior written or oral promises, warranties or agreements except as such are
provided herein. The headings of this lease are for purposes of reference only
and shall not limit or define the meaning hereof. This lease may be executed in
any number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. If it is determined that any provision of this
Lease is unenforceable, the remaining provisions shall remain in full force and
effect. Wherever the word "INCLUDING" appears in this Lease, it shall mean
"INCLUDING BUT NOT LIMITED TO." Wherever the words "GRACE PERIOD" or "CURE
PERIOD" appear, they shall mean "GRACE NOTICE AND CURE PERIOD." Wherever the
words "BUSINESS DAYS" appear, Business Day shall be any calendar day excluding
Saturdays, Sundays, and legal holidays.
50. WAIVER OF LANDLORD'S LIEN. Landlord waives all common law lien rights,
if any, and all statutory lien rights that Landlord may have pursuant to Florida
Statute 83.03 with respect to all property now or hereafter placed in or upon
the Premises by Tenant, successors, or any Controlled Parties, subleases or
assignees.
51. CONSENT. Whenever under this Lease either Landlord's or Tenant's
consent or approval is expressly required, unless specifically set forth to the
contrary herein, such consent or approval shall be in writing. Should such
consent or approval be denied, the party denying such consent or approval shall,
in the notice denying same, provide reasons constituting the basis of denial. If
either party shall fail to respond in writing to any written request for consent
or approval within any time period specified herein, the party requesting the
consent or approval may send a second notice stating that no response has been
received within the required time period and that failure to respond within
THREE (3) business days thereafter shall be deemed approval. If in fact no
response is given within THREE (3) business days thereafter, the consent or
approval shall be deemed to have been given.
52. LIMITATION UPON INDEMNITIES. In the event Landlord or Tenant is liable
to the other pursuant to any indemnity provision contained in the Lease, such
liability shall be reduced by the amount of any insurance proceeds received by
the indemnified party.
53. CONFIDENTIALITY. Each party hereto agrees not to disclose the economic
terms of this Lease except as each party respectively determines to be necessary
for the conduct of its business. Neither party shall issue any press releases
pertaining to this Lease or containing the economic terms of this lease without
the prior written consent of the other party.
54. MEMORANDUM OF LEASE. Landlord and Tenant shall simultaneously with the
execution of this Lease, execute and deliver for recordation in the public
records of Xxxxxx County, Florida, a memorandum of lease in the form of the
"MEMORANDUM OF LEASE" set forth as EXHIBIT I of this Lease and made a part
hereof. In no event shall Landlord or Tenant record this Lease or any portion
hereof.
21
25
55. AMOUNTS ACCRUED AS OF TERMINATION. Upon any termination of this Lease,
any amounts owed by Landlord to Tenant (including abatement amounts and set-off
amounts) or by Tenant to Landlord which have accrued as of the termination date
shall be paid within TEN (10) business days after written demand.
56. WAIVER OF THE RIGHT TO TRIAL BY JURY. Landlord and Tenant hereby
knowingly and intentionally waive the right to trial by jury in any action or
proceeding that Landlord or Tenant may hereinafter institute against each other
with respect to any matter arising out of or related to this Lease or the
Premises.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of the date
aforesaid.
Signed, Sealed and Delivered
in the Presence of AS TO LANDLORD
WITNESSES: XXXXXXXXX AND SEE PROPERTIES,
a Florida general partnership
/s/ Xxxxx X. Xxxxxxxxx, Xx.
----------------------------------- -----------------------------------
Xxxxx X. Xxxxxxxxx, Xx., Partner
-----------------------------------
/s/ /s/ Xxxxx X. See, Partner
----------------------------------- -----------------------------------
Xxxxx X. See, Parnter
/s/ Xxxxxxx X. Page
----------------------------------- DATE SIGNED July 1, 1998
------------------------
Signed, Sealed and Delivered
in the Presence of AS TO THE TENANT
WITNESSES: FIRST UNION NATIONAL BANK
/s/ By /s/
----------------------------------- ---------------------------------
/s/ Its Assistant Vice President
----------------------------------- --------------------------------
DATE SIGNED June 30, 1998
------------------------
22
26
EXHIBIT "A"
TRACT 1:
Lots 6, 7, and the North 5 feet of Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxx of the City
of Wauchula; Xxxxxx County, Florida, per plat thereof as recorded in Plat Book 1
pages 1 through 29(b), less the road right of way.
TRACT 2:
Lots 16 through 20, inclusive, Block 8, Original Survey of the City of
Wauchula, Xxxxxx County, Florida, per plat thereof recorded in Plat Book 1
pages 1 through 29(b); less the road right of way.
27
EXHIBIT "C"
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of July 1998, by and
among Wauchula State Bank (herein "MORTGAGEE"), First Union National Bank, a
national banking association (herein "TENANT") and Xxxxxxxxx and See Properties,
a Florida General Partnership (herein "Owner").
RECITALS
WHEREAS Mortgagee is the owner and holder of a mortgage loan in the
amount of Four Hundred Seventy-Five Thousand and No/100 Dollars ($475,000.00)
(the "MORTGAGE") to Owner, secured by a first mortgage lien on the fee simple
title to certain premises (the "PROJECT") owned by Xxxxxxxxx and See Properties
located at 000 X. 0xx Xxxxxx, Xxxxxxxx, Xxxxxxx, as more fully described in that
Mortgage and Security Agreement dated as of July 1, 1998 and recorded in
Official Records Book 551 page 747; and
WHEREAS Tenant has entered into a certain Lease (the "FIRST UNION
LEASE") dated as of July 1, 1998 with Owner, as lessor, covering certain
premises (the "PREMISES") in the Project, contingent upon the execution and
delivery of this Agreement; and
WHEREAS The parties hereto desire to set forth their agreement herein.
NOW, THEREFORE, in consideration of the Premises and of the sum of ONE DOLLAR
($1.00) by each party in hand paid to the other, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. Mortgagee hereby consents to and approves the First Union
Lease.
2. Tenant agrees that, subject to the provisions of this
Agreement, the First Union Lease is and shall be subject and subordinate to the
Mortgage insofar as it affects the real property of which the Premises form a
part, and to all renewals, modifications, and extensions thereof, to the full
extent of amounts now or hereafter secured thereby and interest thereon,
provided, however that Mortgagee hereby agrees that the rights of possession,
use and peaceful and quiet enjoyment of the Premises (subject to the other terms
of this Agreement) and all other rights and benefits of Tenant under the First
Union Lease, shall not be altered, reduced, affected or disturbed by Mortgagee
in the exercise of any of its rights under the Mortgage, or otherwise.
3. If Mortgagee or any other entity or individual acquires title
to the Project pursuant to foreclosure, deed in lieu of foreclosure, or the
exercise of any other remedy provided in the mortgage, or otherwise (such
acquiring party and its successors and assigns being collectively referred to
herein as "NEW OWNER"), the First Union Lease shall continue in full force and
effect as a binding and direct lease between Tenant and the New Owner upon all
of the terms, covenants, conditions and agreements set forth in the First Union
Lease (subject to the other terms of this Agreement). In such event Tenant
agrees that it will attorn to and recognize the New Owner as its Landlord for
the unexpired balance of the Term of the First Union Lease upon the same terms
and conditions as set forth in the First Union Lease.
4. If it becomes necessary to foreclose the Mortgage and provided
Tenant is not then in default under the First Union Lease beyond any applicable
grace, notice or cure period, Mortgagee will not name or join Tenant as a party
defendant in any suit, action or proceeding (including summary or foreclosure
proceedings) to enforce any rights given to Mortgagee pursuant to the terms,
covenants and conditions contained in the Mortgage,
28
except as may be necessary for purposes of giving notice, or protecting and/or
enforcing Mortgagee's liens, security interest, rights and remedies against
Owner. Further, so long as Tenant is not in default under any of the terms,
covenants or conditions of the First Union Lease beyond any applicable grace,
notice or cure period, the First Union Lease shall not be terminated as a result
of any default under the Mortgage, and Tenant's use, occupancy and possession of
the Premises shall not be disturbed by the New Owner.
5. The New Owner shall not be liable for any act or omission of
any prior landlord (including Owner) subject to the provisions of PARAGRAPH 6
below; or bound by any amendment or modification of the First Union Lease made
without its consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
6. New Owner shall be subject to all of Tenant's rights to
set-off against rents as specifically set forth in the First Union Lease.
7. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their successors and assigns.
8. Tenant agrees to give Mortgagee a copy of any notice of
default served by Tenant upon the Owner, which notice shall be sent (a) by
registered or certified mail, return receipt requested postage prepaid, or and
(b) by Federal Express or other reputable overnight contract carrier sent to the
following address (or such other address as Mortgagee may hereafter specify by
written notice to Tenant): 000 X. Xxxx Xx., X.X. Xxx 000, Xxxxxxxx, Xxxxxxx
00000 with a copy to _______________(attorney). Tenant shall send a courtesy
copy of any such notice to Mortgagee by facsimile to (__) _____________________,
attention _________________________ . All notices to Tenant shall be at the
notice address set forth in the First Union Lease given in the same manner as
above set forth. All notices shall be deemed given upon receipt. Tenant further
agrees that (a) Mortgagee shall have the right (but not the obligation) to cure
any default of Owner under the First Union Lease within the same grace, notice
or cure period afforded to Owner thereunder.
9. Nothing herein contained shall subordinate the First Union
Lease to any mortgage hereafter placed upon the Project by Owner or any New
Owner, provided, that Tenant agrees to subordinate the First Union Lease to the
lien of any such future mortgage if such mortgagee and owner or New Owner (as
applicable) shall execute and deliver to Tenant an agreement in form and content
substantially similar to this Agreement.
10. This Agreement contains the entire agreement between the
parties hereto and cannot be changed, modified, waived or canceled, except by an
agreement in writing executed by the party against whom enforcement of such
modification, change, waiver or cancellation is sought.
11. This Agreement, upon execution by Mortgagee, Landlord and
Tenant, shall be recorded in the Public Records of Xxxxxx County, Florida.
12. The terms of this Agreement shall be governed by the
substantive and procedural laws of the State of Florida.
13. If any term of this Agreement or the application thereof to
any person or circumstances shall to any extent be judicially determined to be
invalid or unenforceable, the remainder of this Agreement or the application of
such term to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
14. In the event of any dispute hereunder, the prevailing party
shall be entitled to reasonable attorney's fees and costs.
15. Time is of the essence in the performance of all obligations
hereunder.
2
29
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
AS TO THE MORTGAGEE
Signed, sealed and delivered WAUCHULA STATE BANK
in the Presence of
WITNESS By /s/
--------------------------------
Its: Vice President
-------------------------------
/s/ Xxxxxxx X. Page
------------------------------------
/s/
------------------------------------
Signed, Sealed and Delivered
in the Presence of AS TO THE TENANT
WITNESS FIRST UNION NATIONAL BANK
/s/ By /s/
------------------------------------ ---------------------------------
/s/ Its: Assistant Vice President
------------------------------------ --------------------------------
Signed, sealed and delivered
in the Presence of AS TO THE OWNER
XXXXXXXXX AND SEE PROPERTIES
WITNESS
/s/ /s/ Xxxxx X. Xxxxxxxxx, Xx.
------------------------------------ -----------------------------------
Xxxxx X. Xxxxxxxxx, Xx., Partner
/s/ Xxxxxxx X. Page /s/ Xxxxx X. See
------------------------------------ -----------------------------------
Xxxxx X. See, Partner
------------------------------------
3
30
EXHIBIT "I"
MEMORANDUM OF LEASE
Xxxxxxxxx and See Properties ("LANDLORD"), a Florida general
partnership having an office at 000 X. 0xx Xxxxxx, Xxxxxxxx, Xxxxxxx, and First
Union National Bank, a national banking association ("TENANT") having an office
at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, do hereby declare
this Memorandum of Lease:
1. Pursuant to that certain Lease Agreement dated July 1, 1998 ("LEASE"),
Landlord has granted and demised unto Tenant, and Tenant has hired and
taken from Landlord 6,828 square feet of net rentable area consisting
of one floor of the Building and adjacent land for Drive-Ins, (as such
terms are defined in the Lease) (collectively, the "PREMISES"), all as
more particularly described in the Lease and reflected on EXHIBITS B-1
AND B-2 hereto, located upon the following described property (the
"LAND"), lying and situated in the County of Xxxxxx, State of Florida,
described in Exhibit A attached hereto, on and subject to the terms,
covenants and conditions contained in the Lease.
2. The initial Term of the Lease, not including any renewal periods, is
for a period ending on June 30, 2008.
3. Tenant has the options to renew the Term of the lease for one (1)
period of five (5) years, by giving notice to Landlord in accordance
with the provisions of the Lease.
4. The lease provides that Tenant shall not have any authority to create
any liens for labor or material on the Land or Landlord's interest
therein, and all persons contracting with Tenant for the erection,
installation, alteration or repair of any building or other
improvements in or on the Land, and all materialmen, contractors,
mechanics and laborers, are hereby charged with notice that they must
look only to Tenant and to Tenant's interest under the Lease to secure
the payment of any sums due for work done or materials furnished to
Tenant during the Term of the Lease and during any Renewal Term
thereunder.
5. This memorandum of Lease is intended only to provide notice of certain
of the terms and conditions contained in the Lease, and is not to be
construed as a complete summary of the terms and conditions thereof. In
the event the terms contained herein shall conflict with the terms and
conditions of the Lease, the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this
Memorandum of Lease as of the 1st day of July, 1998.
AS TO THE LANDLORD
Signed, sealed and deliv- XXXXXXXXX AND SEE PROPERTIES
ered in the presence of:
WITNESS /s/ Xxxxx X. Xxxxxxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxxxxxx, Xx., Partner
/s/
-----------------------------------
/s/ Xxxxx X. See
/s/ Xxxxxxx X. Page -----------------------------------
----------------------------------- Xxxxx X. See, Partner
31
AS TO THE TENANT
Signed, sealed and deliv- FIRST UNION NATIONAL BANK
ered in the presence of:
WITNESS By /s/
----------------------------------------
/s/
-------------------------------- Its: Assistant Vice President
---------------------------------------
/s/
--------------------------------
STATE OF FLORIDA
COUNTY OF XXXXXX
The foregoing Memorandum of Lease was acknowledged before me this 1st
day of July 1998, by Xxxxx X. Xxxxxxxxx, Xx., partner of Xxxxxxxxx and See
Properties, a Florida general partnership, on behalf of the partnership. He/she
is personally known to me, or has produced sufficient identification and did
(did not) take an oath.
/s/ Xxxx X. XxXxxxxx
------------------------------------------
Signature of Notary
XXXX X. XXXXXXXX
------------------------------------------
Name of Notary Typed, Printed or Stamped
Commission Expires: October 3, 2000
Commission Number: CC 590625
STATE OF FLORIDA
COUNTY OF XXXXXX
The foregoing Memorandum of Lease was acknowledged before me this 1st
day of July 1998, by Xxxxx X. See, partner of Xxxxxxxxx and See Properties, a
Florida general partnership, on behalf of the partnership. He/she is personally
known to me, or has produced sufficient identification and (did not) take an
oath.
/s/ Xxxx X. XxXxxxxx
------------------------------------------
Signature of Notary
XXXX X. XXXXXXXX
------------------------------------------
Name of Notary Typed, Printed or Stamped
Commission Expires: October 3, 2000
Commission Number: CC 590625
2
32
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing Memorandum of Lease was acknowledged before me this 30th
day of June , 1998, by Xxxxx X. Xxxxxxxx, as a Assistant Vice of First Union
National Bank, a national banking association. He/she is personally known to me,
or has produced sufficient identification and did (did not) take an oath.
/s/ Xxxxx X. Xxxxxx
-------------------------------------------
Signature of Notary
Xxxxx X. Xxxxxx
-------------------------------------------
Name of Notary, Typed, Printed or Stamped
Commission Expires: February 12, 2001
Commission Number: CC621111
33
November 18, 1998
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of the 19th
day of November, 1998 between FIRST UNION NATIONAL BANK, a national banking
association, whose address for purposes hereof is c/o Corporate Real Estate, 000
Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000 ("Assignor"), and BIG LAKE
NATIONAL BANK, a national banking association, whose address for purposes hereof
is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx, 00000 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has agreed to assign, transfer and convey and
Assignee has agreed to acquire and accept the interest of the Assignor as tenant
under the Lease hereinafter described; and
WHEREAS, Assignor has agreed to discharge all obligations of the
Assignor as tenant under the Lease accruing prior to the date of this
Assignment, and Assignee has agreed to assume and discharge all obligations of
the tenant under the Lease which arise from and after the date hereof.
NOW THEREFORE, in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. RECITALS. The foregoing recitations of fact are true and
correct and are incorporated herein by this reference.
2. ASSIGNMENT. Assignor does hereby assign, transfer and convey
to Assignee all of its right, title and interest as tenant (including, without
limitation, all rights, title and interest in and to security deposits and
prepaid rents, if any) under that certain Lease dated July 1, 1998 (the "Lease")
by and between XXXXXXXXX AND SEE PROPERTIES, a Florida general partnership
("Landlord"), and Assignor demising office space in a building located at 000
Xxxxx 0xx Xxxxxx, Xxxxxxxx, Xxxxxxx, more particularly described in the Lease
(the "Demised Premises"). A true and correct copy of the Lease, including all
amendments and supplements thereto, modifications thereof and other related
documents has previously been delivered by Assignor to Assignee are included in
the term "Lease".
3. REPRESENTATIONS BY ASSIGNOR. Assignor represents and warrants
to the Assignee that Assignor knows of no default which exists under the Lease
and knows of no condition or state of facts which, with the passage of time or
the giving of notice, or both, would constitute a default under the Lease.
34
4. ASSUMPTION. Assignee hereby accepts the foregoing Assignment
and hereby assumes and agrees to perform, to pay or discharge any and all
obligations of the tenant under the Lease arising or accruing from and after the
date hereof.
5. INDEMNITY BY ASSIGNOR. Assignor hereby agrees to defend,
indemnify and save harmless the Assignee from and against any and all claims,
demands, suits, judgments, losses and other damages which it may suffer on
account of or arising out of any obligation of the tenant under the Lease
accruing or arising on or prior to the date hereof. This indemnity by the
Assignor shall survive the execution and delivery of the Assignment.
6. BROKERAGE COMMISSIONS. Each party hereto warrants and
represents to the other that it has employed the services of no broker and owes
no commission or other payment in connection herewith to any person, and agrees
to indemnify and hold the other harmless against the claims of any third person
claiming by or through it for any such commission or fee.
7. ASSIGNMENT ALLOWED BY LEASE. Paragraph 15(c) of the Lease
provides that Assignor shall have the right, after first giving notice to the
Landlord, to assign this Lease without the prior written consent of the Landlord
in the event that the Tenant sells its deposits located at the Premises.
Assignor is selling its deposits to the Assignee simultaneously with the
execution of this Assignment and, having given notice to the Landlord, is
therefore permitted under the Lease to make this assignment without the
Landlord's consent.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Assignment and Assumption Agreement to be duly executed and delivered as of the
date first above written.
Signed, sealed and delivered in the presence of: FIRST UNION NATIONAL BANK
/s/ Xxxxxx X. Xxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------ -----------------------
Witness
XXXXXX X. XXX Name: XXXXXXX X. XXXXX
------------------------------------------------ ---------------------
Name (please print) (please print)
/s/ Xxxx Xxx Its: VICE PRESIDENT
------------------------------------------------ ----------------------
Witness "ASSIGNOR"
XXXX XXX
------------------------------------------------
Name (please print)
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this 18 day of
November, 1998 by XXXXXXX X. XXXXX, as VICE PRESIDENT of FIRST UNION
-2-
35
NATIONAL BANK, a national banking association, on behalf of the association.
He/She is personally known to me.
Xxxxxx X Xxxxxx /s/ Xxxxxx X. Xxxxxx
[SEAL] My Commission CC738234 ----------------------------------------
Expires April 29, 2002 Notary Public, State of Florida
(Type, stamp or print name of notary,
commission number and date commission
expires).
Signed, sealed and delivered in the BIG LAKE NATIONAL BANK
presence of:
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Witness
Xxxxxxx Xxxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------------------- -------------------------------------
Name (please print)
Name:
-----------------------------------
(please print)
/s/ Xxxxxx X. Xxxxx Its:
----------------------------------- ------------------------------------
Witness "ASSIGNEE"
Xxxxxx X. Xxxxx
-----------------------------------
Name (please print)
STATE OF FLORIDA
COUNTY OF OKEE
The foregoing instrument was acknowledged before me this 18th day of
December, 1998 by Xxx Xxxxxxx, as President of BIG LAKE NATIONAL BANK, a
national banking association, on behalf of the association. He is personally
known to me or has produced __________________________ as identification.
/s/ Xxxxx Xxxxx
----------------------------------------
Notary Public, State of Florida
(Type, stamp or print name of notary,
commission number and date commission
expires).
NOTARY PUBLIC - STATE OF FLORIDA
XXXXX XXXXX
COMMISSION #CC639289
EXPIRES 7/13/2001
BONDED THRU ASA 1-888-NOTARY1
- 3 -
