0
XXXXXXX 00.0
XXXXXXX XXX, INC.
000 XXXX XXXXXX
XXXXX XXXXX, XXXXXXX 00000
OPTION TO LEASE
THIS AGREEMENT made and entered into as of the 16th day of November,
1998, by and between COASTAL BHC, INC., a Florida corporation on behalf of
Coastal Community Bank (in organization) (collectively, the "Bank") as
hereinafter provided and MCH PROPERTIES, INC., a Florida corporation
("Landlord").
W I T N E S S E T H:
WHEREAS, the Landlord is the owners of the developed commercial
property more particularly described on Exhibit "A" attached hereto (the
"Premises"), that it desires to lease; and
WHEREAS, Bank desires to secure an option to lease the Premises (the
"Option") under terms and conditions hereinafter generally set forth; and
NOW THEREFORE, in consideration of the mutual covenants contained in
this agreement and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto covenant and agree as follows:
1. RECITALS. The above recitals are true and correct.
2. OPTION TO LEASE. The Landlord to hereby grants Bank an option to
lease the Premises beginning on the date first above written and ending on the
lst day of June, 1999 (the "Option Period"). The Option is subject to the
following conditions:
A. That the Bank obtain the necessary federal and state regulatory
approvals to operate as a Florida state chartered commercial bank; and
B. That the lease between the Landlord and the current tenant of the
Premises, Health South, Inc. be terminated or, in the event that Health South,
Inc. retains its lease with the Landlord, that the execution of this Option to
Lease shall constitute consent by the landlord to the Bank as sublessee.
3. SUBJECT OF LEASE. Before the expiration of the Option Period, the
Landlord and the Bank shall enter into a written lease agreement in form, terms,
conditions and substance mutually satisfactory to Landlord and Bank whereby the
Landlord leases the Premises, which are to be used by the Bank for a banking
facility, to the Bank.
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4. TERM OF LEASE. The Premises shall be leased to the Bank for an
initial term of five (5) years beginning on existing Tenant move-out date. The
Lease shall be automatically renewable for one (1) successive five (5) year
option, unless the Bank gives written notice of, its intention not to exercise
said option at least 90 days prior to the end of the five (5) year term in
question.
5. MONTHLY RENTAL.
A. Bank shall pay FIVE HUNDRED THOUSAND DOLLARS AND 00/100
($500,000.00) plus sales tax, for the term of the Lease as rental with the first
monthly payment due on or before the first of the following month, or when the
Bank opens for business whichever is earlier in time. Subsequent monthly rental
payments shall be due on the 1st day of each succeeding month. Any occupancy
prior to the opening of the Bank shall be without charge.
B. The Monthly Rental Payment shall be subject to adjustment based
on the CPI Index.
6. LEASE PROVISIONS. The Landlord shall draw and submit the Lease to
Bank. The Lease shall contain INTER ALIA the following terms, conditions and
covenants, together with other usual and reasonable terms and conditions not
inconsistent with the following:
A. The Lease shall contain usual provisions providing for default,
notice of default and reasonable time to cure.
B. The Lease shall be drafted to comply with all local and state
requirements for leases and shall contain such provisions as are normally found
in long-term leases for commercial property located within Miami-Dade County,
Florida.
C. The Lease shall provide for leasehold improvements at lessee's
expense, provided, however, no structural alterations or modifications to the
structural portions of the Premises may be made without first securing prior
written consent of Lessor.
D. Subject to the provisions hereof, the form of the Lease shall be
generally that shown in Exhibit "B" attached.
7. GOVERNING LAW. This agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Florida.
8. ATTORNEY FEES. In the event that any action is filed in relation to
this agreement, the prevailing party shall be entitled to its attorney fees.
9. ENTIRE AGREEMENT. This agreement shall constitute the entire
agreement between
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the parties. Any prior understanding or representations of any kind preceding
the date of this agreement shall not be binding upon either party except to the
extent incorporated in this agreement.
10. BINDING EFFECT. This agreement shall bind and inure to the benefit
of the respective heirs, personal representatives, successors and assigns of the
parties.
11. PARAGRAPH HEADINGS. The titles to the paragraphs of this agreement
are solely for the convenience of the parties and shall not be used to explain,
modify, simplify, or aid in the interpretation of the provisions of this
agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
on the date and year first above written.
WITNESSES: COASTAL BHC, INC., on behalf of
COASTAL COMMUNITY BANK (in organization)
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
/s/ Xxxx X. Xxxxxxx
--------------------------------------- -----------------------------------
Xxxx X. Xxxxxxx, Chairman and Chief
Executive Officer
MCH PROPERTIES, INC.
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
/s/ Xxxxx Xxxxxxxxx
--------------------------------------- -----------------------------------
Xxxxx Xxxxxxxxx, President
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OFFICE LEASE
THIS LEASE ("Lease"), made and entered into as of this ____
day of __________, 199_ by and between Landlord and Tenant as specified in Items
1 and 2 of the Definitions in Section 1.1 hereof.
Landlord hereby demises and rents unto Tenant, and Tenant
hereby leases from Landlord, certain Premises now existing in Landlord's
Building ("Building") as described in Item 3 of the Definitions appearing in
Section 1.1 hereof, and upon the terms, covenants and conditions contained
herein.
ARTICLE I
EXHIBITS, PREMISES, USE OF PREMISES AND TERM
Section 1.0 Covenants of Landlord's Authority
Landlord represents and covenants that: a) prior to commencement of
the Lease term, it will have either good title to or a valid leasehold interest
in the land and building of which the Premises form a part; and b) upon
performing all of its obligations hereunder, Tenant shall peacefully and quietly
have, hold and enjoy the Premises for the term of this Lease.
Section 1.1 Definitions
The following Items shall be defined or be referred to as indicated
below for the purposes of this Lease and the Exhibits attached hereto:
Item 1 - Landlord: MCH MEDICAL CENTER LTD.
Item 2 - Tenant: COASTAL BHC, INC.
Item 3 - Building:
Lennar Center
8700, 8720, 0000 X. Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Premises (Section 1.3): Suite # ______ in Building 8700 having a gross
leasable area of approximately 4.000 square feet. including an add-on
factor of 4%.
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Item 4 - Use of Premises (Section 1.4): Banking facility.
Item 5 - Tenant's Trade Name: COASTAL BHC, INC.
Item 6 - Lease Term (Section 1.5): 5 year(s) and 0 month(s)
----- ------
Item 7 - Lease Commencement Date (Section 1.5): Upon existing Tenant move-out date.
Lease Expiration Date (Section 1.5): Five years from commencement date.
Item 8 - Rent Commencement Date (Section 1.6): Lease commencement date.
Item 9 - Total Fixed Minimum Rent (Section 2.1): $500,000.00
Payable as follows, plus all applicable taxes: $ 8,333.33 per month
-----------
Item 10 - Fixed Minimum Rent Increases(s) CPI (Section 2.2): Adjustment Dates:
Basic Standard: Three month from commencement date.
Item 11 - Security Deposit (Section 10.1): $ 16,666.66
-----------
Item 12 - Tenant's Participation in Operating Expenses (Section 4.1):
Base Operating Year: 1998
Monthly Estimated Amount.- $ 90.00
-------
Item 13 - Tenant's Participation in Real Estate Taxes (Section 5.2):
Base Tax Year: 1998
Item 14 - Notices (Section 12.1): Tenant: COASTAL BHC, INC.
0000 X. Xxxxxxx Xx.
Xxxxx
Xxxxx, XX 00000
Landlord: MCH MEDICAL CENTER LTD.
0000 X. Xxxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Item 15 - Additional Terms:
A. Commencing on ______________ and on the first day of each month
thereafter during each subsequent Lease Year or subsequent Partial
Lease Year, as defined in Section 1.7, during the term of this
Lease or any renewal thereof, Tenant shall pay to
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Landlord its monthly estimated pro rata share of Operating Expenses as
set forth in Item 12. At the end of each Lease Year or Partial Lease
Year, Tenant shall pay to Landlord its proportionate share, as
hereinafter defined, of the amount by which the annual Operating
Expenses, as defined in Section 4.2, exceed the Operating Expenses of
the Base Operating Year specified in Item 12. Tenant's proportionate
share for said Operating Expenses for each Lease Year or Partial Lease
Year of the term of this Lease or any renewal thereof shall be
determined by dividing the total number of square feet in the Premises
by the total number of square feet of all leasable space within the
Building. In the event Tenant's proportionate share of Operating
Expenses at the end of each Lease Year or Partial Lease Year exceed
the monthly estimated payments made by Tenant during the Lease Year or
Partial Lease Year in which such Operating Expenses are incurred,
Tenant shall pay to Landlord the excess on or before thirty (30) days
following receipt of Landlord's statement showing the amount due by
Tenant, and subsequent monthly payments shall be adjusted so that such
monthly payments for the next Lease Year of Partial Lease Year shall
be based on Landlord's actual Operating Expenses for each Lease Year
or Partial Lease Year. In no event shall Tenant's monthly payments
hereunder be less than the monthly pro rata amount as set forth in
Item 12.
B. Landlord shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, or leaks from any part of the Premises or
from the pipes, appliances, or plumbing works of from the roof,
street, or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature. All property of Tenant, including
merchandise and furnishings, kept or stored on the Premises shall be
so kept or stored at the risk of Tenant only and Tenant shall hold
Landlord harmless from any and all claims arising out of damage to
same. If Landlord is required to make repairs by reason of any act,
omission or negligence of Tenant, any permitted subtenants,
concessionaires or their respective employees, agents, invitees,
licensees, or contractors, the cost of such repairs shall be borne by
Tenant and shall be due and payable immediately upon receipt of
Landlord's notification of the amount due.
C. Tenant shall be solely responsible for removal and disposal of all
bio-medical wastes from the Premises, and under no circumstances shall
Tenant dispose of such wastes on the property of which the Premises is
a part nor in any manner that is illegal or hazardous. Tenant shall
defend, indemnify, and hold Landlord harmless from and against any and
all lawsuits, fines, claims, losses, liabilities, fees, actions, costs
and expenses, including but not limited to attorneys' fees, and all
other things or matters of any nature whatsoever in any way related to
Tenant's bio-medical wastes or its disposal of such wastes. A
violation of the foregoing by Tenant shall be a default of this Lease,
and Landlord shall have all the remedies available to it as set forth
in this Lease and provided by Law.
D. Radon Gas. Pursuant to F.S. 404.056(8)(1988), Tenant is hereby
notified that
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radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may
be obtained from your county public health unit. In no event shall
Landlord be liable for direct or indirect, consequential or incidental
damages arising form existence or discovery of radon in the Premises.
5. PARKING. Landlord has the unqualified right to charge a
parking fee to all persons using its parking facilities.
Notwithstanding, no parking fees shall be charged to the
Tenants or their bonafide employees. In case of the Tenant
being a Corporation or Partnership, only the principals
thereof will be except from the parking fee
6. OPTION TO RENEW. Provided that Tenant is not in default
of the Lease, then Tenant, by giving Landlord written
notice not less than ninety (90) days nor more than one
hundred eighty ( 180) days prior to the expiration of this
Lease term. shall have the right to renew the Lease for an
additional One (1) term of five (5) years upon the same
terms covenants and conditions, at the then prevailing
Market Rate.
Section 1.2 Exhibits
The Exhibits listed hereunder and attached to this Lease are
incorporated and made a part hereof by reference:
Exhibit A-- Legal Description
Exhibit B-- Site Plan
Exhibit C-- Rules and Regulations
Exhibit D-- Covenant Running with the Land in Favor of
Metropolitan Dade County which prohibits the use.
generation, handling, disposal, storage, or
discharge of hazardous materials.
THIS SPACE LEFT BLANK INTENTIONALLY
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Section 1.3 Premises Leased by Tenant
A. The Premises leased by Tenant are located at the Building set forth
in Item 3 of the Definitions, which Premises are particularly described in Item
3 of the Definitions.
The boundaries and location of the Premises are outlined on tile Site
Plan diagram of the Building, (Exhibit "B"), which sets forth the general layout
of tile Building, but shall not be deemed to be a warranty, representation, or
agreement upon the part of tile Landlord that said Building will be exactly as
indicated on said diagram.
The Premises includes, for the purpose of this Lease, the Premises
within Landlord's Building leased to Tenant herein and shall extend to tile
exterior faces of all walls or to the building line where there is no wall, or
to the center line of those walls separating the Premises from other premises in
the Building, together with the appurtenances specifically granted in this
Lease, but reserving and excepting to Landlord the use of tile exterior walls
and the roof and the right to install, maintain, use, repair and replace pipes,
ducts, conduits, and wires leading through the Premises in locations which will
not materially interfere with Tenant's use thereof and serving other parts of
the Building.
Section 1.4 Use of Premises
The Premises shall be used and occupied only for the purpose as
specified in Item 4 of tile Definitions and for no other purpose or purposes
without Landlord's prior written consent. Tenant shall. at its own risk and
expense, obtain all governmental licenses and permits necessary for such use.
Section 1.5 Lease Term
The term of this Lease shall be for the period specified in Item 6 of
the Definitions commencing and expiring as provided in Item 7 of the
Definitions, unless sooner terminated or extended as hereinafter provided.
Section 1.6 Rent Commencement Date
Tenant shall commence payment of Rent at the earlier of (a) the date
specified in Item 8 of the Definitions, or (b) the date when the Tenant shall
occupy the Premises, which date shall be agreed to by both parties in writing no
later than five (5) days after Tenant opens for business. If the Rent
Commencement Date falls on a day other than the first day of a calendar month,
the Fixed Minimum Rent for such month shall be prorated on a per diem basis,
calculated on the basis of a Thirty (30) day month.
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Section 1.7 Lease Year
For purpose of this Lease, the term Lease Year is defined to mean a
calendar year (beginning January 1 and extending through December 31 of any
given year). Any portion of a year which is less than a Lease Year, that is,
from the Lease Commencement Date through the next December 31, and from the last
January 1 falling within the term of the Lease through the last day of the term,
shall be defined as a Partial Lease Year.
Section 1.8 Acceptance of Premises
Tenant acknowledges that it has fully inspected and accepts tile
Premises in their present condition and "as is", and that the same are suitable
for the use specified in Item 4 of the Definitions.
ARTICLE II
RENT
Section 2.1 Fixed Minimum Rent
The total Fixed Minimum Rent for the Lease Term as specified in Item 9
of the Definitions shall be payable by Tenant as specified in Item 9 of the
Definitions.
The phrase Fixed Minimum Rent shall be the Fixed Minimum Rent above
specified, payable monthly in advance on the first day of each month, without
prior demand therefor and without any deduction or setoff whatsoever. In
addition, Tenant covenants and agrees to pay Landlord all applicable sales or
other taxes which may be imposed on the above specified rents or payments
hereinafter provided for to be received by Landlord when each such payment is
made. Should Tenant fail to pay any installment of Rent when due and continuing
for a period of time constituting a default as further defined under the
provisions of this Lease, Section 9.1, Default, Landlord may, at its option,
require the total Fixed Minimum Rent remaining for the term of this Lease to
immediately become due and payable. If Tenant pays any installment of Fixed
Minimum Rent or any other sum by check and such check is returned for
insufficient funds or other reasons not the fault of Landlord, then Tenant shall
pay to Landlord on demand a processing fee of $25.00 per returned check.
Landlord, at its option, may subtract any such processing fee from any Security
Deposit held by Landlord, and, in such event, Tenant shall deposit a like amount
with Landlord in accordance with the terms of Section 10.1.
Section 2.2 Fixed Minimum Rent Increase
So as to afford Landlord with consistent purchasing power of its rental
income during future years of the Lease, the Fixed Minimum Rent described in
Item 9 of the Definitions shall be subject to adjustments from time to time as
provided for herein. Landlord and Tenant agree to adopt as a standard for
measuring fluctuations of the purchasing power of this rental income the
Consumer
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Price Index (for all urban consumers) - All items (1967 = 100) issued by the
Bureau of Labor Statistics of the U.S. Department of Labor ("CPI"). The Fixed
Minimum Rent shall be adjusted to reflect increases in the cost of living as set
forth by the CPI Figure or any successor or substituted index appropriately
adjusted. The CPI Figure for the month specified in Item 10 of the Definitions
shall be defined as the BASIC STANDARD. The CPI Figure for each anniversary date
of the Basic Standard shall be defined as the NEW INDEX FIGURE. Adjustments
shall be made annually on the dates as provided in Item 10 of the Definitions.
These adjustments shall be made and the adjusted monthly Fixed Minimum Rent (NEW
RENTAL) for tile ensuing period shall be arrived at by multiplying the monthly
Fixed Minimum Rent for the last full month of the first year of the initial
Lease term, as described in Item 9, by a fraction, the numerator of which shall
be the respective NEW INDEX FIGURE and the denominator of which shall be the
BASIC STANDARD.
Landlord shall notify Tenant in writing of the amount of the NEW RENTAL
and same shall be due on the first day of the month beginning that same
adjustment period and each month thereafter until adjusted again. However, in no
event shall the rental due and payable hereunder be less than the annual Fixed
Minimum Rent for each preceding year of the Lease, regardless of the value of
the dollar as reflected by said CPI Figure.
In the event the amount of the CPI Figure increase is not known until
after the first month of the period for which the adjustment is to be made, due
to delays in publications of the CPI Figure, or any other reason, then, upon
notification of the increase by Landlord, the Tenant shall pay the full amount
of the increase which is due for any prior months during the adjustment period,
within Fifteen (15) days following receipt of Landlord's written notice of the
amount due.
In the event of any controversy arising as to the proper adjustment for
rental payments as herein provided, the Tenant shall continue paying the rental
under the last preceding rental adjustment, as herein provided, until such time
as said controversy has been settled, at which time an adjustment will be made,
retroactive to the beginning of the adjustment period in which the controversy
arose.
Section 2.3 Late Payment
Should Tenant fail to pay when due any installment of Fixed Minimum
Rent or any other sum payable to Landlord under the terms of this Lease, then
Landlord shall assess a servicing fee of Fifty Dollars ($50.00) per month from
and after the Fifth (5th) day following the date on which any sum shall be due
and payable, until the required payments are made. Landlord, at its option, may
subtract any such amount that is not paid from any Security Deposit held by
Landlord and, in such event, Tenant shall deposit a like amount with Landlord in
accordance with the terms of Section 10.1 herein. Should Tenant remit a partial
payment for any outstanding Fixed Minimum Rent or Additional Rent due, Landlord
shall apply said partial payment to the outstanding Fixed Minimum Rent or
Additional Rent as Landlord deems necessary, in its sole discretion.
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Section 2.4 Additional Rent-Definition
In addition to the foregoing Fixed Minimum Rent and Fixed Minimum Rent
Increase, all payments to be made under this Lease by Tenant to Landlord shall
be deemed to be and shall become Additional Rent hereunder and, together with
Fixed Minimum Rent, shall be included in the term "Rent" whenever such term is
used herein. Unless another time shall be herein expressly provided for the
payment thereof, any Additional Rent shall be due and payable on demand or
together with the next succeeding installment of Fixed Minimum Rent, whichever
shall first occur, together with all applicable State taxes and interest thereon
at the then prevailing legal rate, and Landlord shall have the same remedies for
failure to pay the same as for non-payment of Fixed Minimum Rent. Landlord, at
its election, shall have the right to pay or do any act which requires the
expenditure of any sums of money by reason of the failure or neglect of Tenant
to perform any of the provisions of this Lease, and in the event Landlord elects
to pay such sums or do such acts requiring the expenditure of monies, all such
sums so paid by Landlord, together with interest thereon, shall be deemed to be
Additional Rent and payable as such by Tenant to Landlord upon demand.
ARTICLE III
SERVICES
Section 3.1 Services of Landlord
(a) Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, corridors and restrooms, the
windows in the Building, the mechanical, plumbing and electrical equipment
serving the Building, and the structure itself in reasonably good order and
condition except for damage occasioned by the act of the Tenant, which damage
shall be repaired by Landlord at Tenant's expense.
(b) Landlord shall furnish the Premises with (1) electricity for
lighting and the operation of office machines, (2) heat and air conditioning to
the extent reasonably required for the comfortable occupancy by Tenant in its
use of the Premises during the period from 8:00 a.m. to 6:00 p.m. on weekdays
and from 8:30 a.m. to 1:00 p.m. on Saturdays, except for holidays declared by
the Federal government, or such shorter period as may be prescribed by any
applicable policies or regulations adopted by any utility or governmental
agency, (3) elevator service, if applicable, (4) lighting replacement (for
building standard lights), (5) restroom supplies, (6) window washing with
reasonable frequency, (7) and daily janitor service five (5) days a week during
the times and in the manner that such services are customarily furnished in
comparable office buildings in the area. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting from,
nor shall the rental herein reserved be abated by reason of (i) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services (ii) failure to furnish or delay in
furnishing any such services when such failure or delay is caused by accident or
any condition beyond the reasonable control of Landlord or by the making of
necessary repairs or improvements to the Premises or to the Building, or (iii)
the limitation, curtailment, rationing or restrictions on use of water,
electricity, gas cir any other form of energy serving the Premises or the
Building. Landlord shall use reasonable efforts diligently to remedy any
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interruption in the furnishing of such services.
(c) Whenever heat generating equipment or lighting other than building
standard lights are used in the Premises by Tenant which affect the temperature
otherwise maintained by the air conditioning system, Landlord shall have the
right, after notice to Tenant, to install supplementary air conditioning
facilities in the Premises or otherwise modify the ventilating and air
conditioning systems serving the Premises, and the cost of such facilities and
modifications shall be borne by Tenant. Tenant shall also pay as Additional
Rent, the cost of providing all cooling energy to the Premises in excess of that
required for normal office use or during hours requested by Tenant when air
conditioning is not otherwise furnished by Landlord. If Tenant installs lighting
requiring power in excess of that required for normal office use in the
Building, or if Tenant installs equipment requiring power in excess of that
required for normal desk-top office equipment or normal copying equipment,
Tenant shall pay for the cost of such excess power as Additional Rent, together
with the cost of installing any additional risers or other facilities that may
be necessary to furnish such excess power to the Premises.
ARTICLE IV
OPERATING EXPENSES
Section 4.1 Tenant's Participation In Operating Expenses
Section 4.2 Definition Of Operating Expenses
The term "Operating Expenses" shall mean (1) all costs of management,
operation and maintenance of the Office Complex, including, without limitation,
wages, salaries and payroll burden of employees, janitorial, maintenance, guard
and other services, building management office rent or rental value, power,
fuel, water, waste disposal, landscaping care, premiums for liability, fire,
hazard and other property related insurance, parking area care, advertising and
promotion, fees for energy saving programs, administrative costs, including
management fee, and (2) the cost (amortized over such reasonable period as
Landlord shall determine) of any capital improvements made to the Building by
Landlord after the date of this Lease that reduce the Operating Expenses or made
to the Building by Landlord after the date of this Lease that are required under
any governmental law or regulation that was not applicable to the Building at
the time it was constructed; provided, however, that Operating Expenses shall
not include real property taxes, depreciation on the Building, costs of tenant
improvements, real estate brokers' commissions, interest and capital items other
than those referred to in clause (2) above.
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ARTICLE V
TAXES
Section 5.1 Tenant's Taxes
Tenant covenants and agrees to pay promptly when due all taxes imposed
upon its business operations and its personal property situated in the Premises.
Section 5.2 Tenant's Participation in Real Estate Taxes
Landlord will pay in the first instance all real property taxes,
including extraordinary and/or special assessments (and all costs and fees
incurred in contesting the same), hereinafter collectively referred to as Real
Estate Taxes, which may be levied or assessed by the lawful tax authorities
against the land, buildings, and all other improvements in the Building.
Tenant, for each Lease Year or Partial Lease Year, as defined in
Section 1.7, during the term of this Lease or any renewal thereof, shall pay to
Landlord its proportionate share, as hereinafter defined, of the amount by which
the annual Real Estate Taxes assessed or levied against the land and buildings
of the Building exceed the Real Estate Taxes for the Base Tax Year specified in
Item 13 of the Definitions.
Tenant's proportionate share for said Real Estate Taxes for each Lease
Year or Partial Lease Year of the term of this Lease or any renewal thereof
shall be determined by dividing the total number of square feet in the Premises
by the total number of square feet of all leasable building space within the
Building. Any payments due by Tenant hereunder shall be made during each Lease
Year or Partial Lease Year of the term of this Lease or any renewal thereof
within Thirty (30) days after Tenant's receipt of Landlord's written
certification of the amount due. Tenant's share shall be prorated in the event
Tenant is required to make such payment for a Partial Lease Year. In addition,
should the taxing authorities include in such Real Estate Taxes the value of any
improvements made by Tenant, or include machinery, equipment, fixtures,
inventory or other personal property or assets of the Tenant, then Tenant shall
also pay 100% of the Personal Property Taxes and Real Estate Taxes for such
items.
If the Lease expires during a Partial Lease Year, Landlord shall xxxx
Tenant, not more than Sixty (60) days prior to the expiration date of the Lease,
for its estimated pro rata share of Real Estate Taxes for the Partial Lease
Year. Tenant shall remit full payment to Landlord within Seven (7) days of such
xxxx. If Tenant fails to remit such full payment to Landlord, Landlord in its
sole discretion, may deduct the amount due from Tenant's Security Deposit and be
entitled to all other rights and remedies hereunder for Tenant's default.
Should any governmental taxing authority, acting under any present or
future law, ordinance, or regulation, levy, assess or impose a tax, excise
and/or assessment (other than income or franchise tax) upon or against or in any
way related to the land and buildings comprising the Building, either by way of
substitution or in addition to any existing tax on land and buildings or
otherwise, Tenant shall be responsible for and shall pay to Landlord its
proportionate share as set forth above of such tax, excise and/or assessment.
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ARTICLE VI
ADDITIONS, ALTERATIONS, REPLACEMENTS AND TRADE FIXTURES
Section 6.1 By Landlord
Landlord hereby reserves the right at any time to make alterations or
additions to the Building in which the Premises are contained and to build
additional stories thereon. Landlord also reserves the right to construct other
buildings or improvements in the Building or Common Areas from time to time and
to make alterations thereof or additions thereof and to build additional office
space on any such building or buildings so constructed.
Section 6.2 By Tenant
Upon receipt of Landlord's prior written approval, Tenant may from time
to time, at its own expense, alter, renovate or improve the interior of the
Premises provided the same be performed in a good and workmanlike manner, in
accordance with accepted building practices and so as not to weaken or impair
the strength or lessen the value of the Building in which the Premises are
located. No changes, alterations or improvements affecting the exterior of the
Premises shall be made by Tenant without the prior written approval of Landlord.
Any work done by Tenant under the provisions of this Section shall not interfere
with the use by the other tenants or their premises in the Building. Tenant also
agrees to pay 100% of any increase in the Real Estate Taxes or Landlord's
Personal Property Taxes resulting from such improvements.
All alterations, decorations, additions and improvements made by
Tenant, or made by Landlord on Tenant's behalf as provided in this Lease, shall
remain the property of the Tenant for the term of this Lease or any extension or
renewal thereof, but they shall. not be removed from the Premises without the
prior written consent of Landlord.
Upon obtaining the prior written consent of Landlord, Tenant shall
remove such alterations, decorations, additions and improvements and restore the
Premises as provided in Section 6.5, and if Tenant fails to do so and moves from
the Premises, all such alterations, decorations, additions and improvements
shall become the property of Landlord.
Section 6.3 Construction Insurance and Indemnity
Tenant shall indemnify and hold Landlord harmless from any and all
claims for loss or damages or otherwise based upon or in any manner growing out
of any alterations or construction undertaken by Tenant under the terms of this
Lease, including all costs, damages, expenses, court costs and attorneys' fees
incurred in or resulting from claims made by any person or persons, by other
tenants of premises in the Building, their subtenants, agents, employees,
customers and invitees.
Before undertaking any alterations or construction, Tenant shall obtain
and pay for a public
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liability policy insuring Landlord and Tenant against any liability which may
arise on account of such proposed alterations or construction work in limits of
not less than $1,000,000.00 for any one person, $1,000,000.00 for more than one
person in any one accident and $200,000.00 for property damage; and a copy of
such policy shall be delivered to Landlord prior to the commencement of such
proposed work. Tenant shall also maintain at all times fire insurance with
extended coverage in the name of Landlord and Tenant as their interests may
appear in an amount adequate to cover the cost of replacement of all
alterations, decorations, additions or improvements in and to the Premises and
all trade fixtures therein, in the event of fire or extended coverage loss.
Tenant shall deliver to Landlord copies of such fire insurance policies which
shall contain a clause requiring the insurer to give Landlord Ten (10) days
notice of cancellation of such policies.
Section 6.4 Mechanic's Liens and Additional Construction
If by reason of any alteration, repair, labor performed or materials
furnished to the Premises for or on behalf of Tenant any mechanic's or other
lien shall be filed, claimed, perfected or otherwise established or as provided
by law against the Premises, Tenant shall discharge or remove the lien by
bonding or otherwise, within Fifteen (15) days after the Tenant receives notice
of the filing of same. Notwithstanding any provision of this Lease seemingly to
the contrary, Tenant shall never, under any circumstances, have the power to
subject the interest of Landlord in the Premises to any mechanics' or
materialmen's liens or liens of any kind, nor shall any provision contained in
this Lease ever be construed as empowering the Tenant to encumber or cause the
Landlord to encumber the title or interest of Landlord in the Premises.
Tenant hereby expressly acknowledges and agrees that no alterations,
additions, repairs or improvements to the Premises of any kind are required or
contemplated to be performed as a prerequisite to the execution of this Lease
and the effectiveness thereof according to its terms or in order to place the
Premises in a condition necessary for use of the Premises for the purposes as
set forth in this Lease, that the Premises are presently complete and usable for
the purposes set forth in this Lease and that this Lease is in no way
conditioned on Tenant making or being able to make alterations, additions,
repairs or improvements to the Premises, unless otherwise specified under the
Special Provisions section of the Definitions, notwithstanding the fact that
alterations, repairs, additions or improvements may be made by Tenant, for
Tenant's convenience or for Tenant's purposes, subject to Landlord's prior
written consent, at Tenant's sole cost and expense.
Landlord and Tenant expressly acknowledge and agree that neither the
Tenant nor any one claiming by, through or under the Tenant, including without
limitation contractors, sub-contractors, materialmen, mechanics and laborers,
shall have any right to file or place any mechanics' or materialmen's liens of
any kind whatsoever upon the Premises nor upon any building or improvement
thereon; on the contrary, any such liens are specifically prohibited. All
parties with whom the Tenant may deal are hereby put on notice that the Tenant
has no power to subject the Landlord's interest in the Premises to any claim or
lien of any kind or character and any persons dealing with the Tenant must look
solely to the credit of the Tenant for payment and not to the Landlord's
interest in the Premises or otherwise.
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Any lien filed against the Premises in violation of this paragraph
shall be null and void and of no force or effect. In addition, Tenant shall
cause any lien filed against the Premises in violation of this paragraph to be
cancelled, released, discharged and extinguished within Fifteen (15) days after
Tenant receives notice of filing of the same and shall indemnify and hold the
Landlord harmless from and against any such lien and any costs, damages, charges
and expenses, including, but not limited to, attorney's fees, incurred in
connection with or with respect to any such lien.
Section 6.3 Trade Fixtures
All trade fixtures and equipment installed by Tenant in the Premises
shall be new or completely reconditioned and shall remain the property of
Tenant.
Provided Tenant is not in default hereunder, Tenant shall have the
right, at the termination of this Lease, to remove any and all trade fixtures,
equipment and other items of personal property not constituting a part of the
freehold which it may have stored or installed in the Premises including, but
not limited to, counters, shelving, showcases, chairs, and movable machinery
purchased or provided by Tenant and which are susceptible of being moved without
damage to the Building and the Premises, provided this right is exercised before
the Lease is terminated or during the Ten (10) day period immediately following
such termination and provided that Tenant, at its own cost and expense, shall
repair any damage to the Premises caused thereby. The right granted Tenant in
this Section shall not include the right to remove any plumbing or electrical
fixtures or equipment, heating or air conditioning equipment, floor-coverings
(including wall-to-wall carpeting) glued or fastened to the floors or any
paneling, tile or other materials fastened or attached to the walls or ceilings,
all of which shall be deemed to constitute a part of the freehold, and, as a
matter of course, shall not include the right to remove any fixtures or
machinery that were furnished or paid for by the Landlord. The Premises and the
immediate areas in front, behind and adjacent to it shall be left in a
broom-clean condition. Should Tenant fail to comply with this provision,
Landlord may deduct the cost of cleanup from Tenant's Security Deposit. If
Tenant shall fail to remove its trade fixtures or other property at the
termination of this Lease or within Ten (10) days thereafter, such fixtures and
other property not removed by Tenant shall be deemed abandoned by Tenant, and,
at the option of Landlord, shall become the property of Landlord.
All of the foregoing is subject to Section 10.2 of this Lease.
Section 6.6 Right of Entry
Landlord or its representatives shall have the right to enter the
Premises at reasonable hours of any day during the Lease Term to: a) ascertain
if the Premises are in proper repair and condition, and further, Landlord or its
representatives shall have the right, without liability, to enter the Premises
for the purposes of making repairs, additions or alterations thereto or to the
Building in which the same are located, including the right to take the required
materials therefor into and upon the Premises without the same constituting an
eviction of Tenant in whole or in part, and the Rent shall not xxxxx while such
repairs, alterations, replacements or improvements are being made by
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reason of loss or interruption of Tenant's business due to the performance of
any such work; and b) show the Premises to prospective purchasers, lenders and
tenants. If Tenant shall not be personally present to permit an entry into said
Premises when for any reason an entry therein shall be permissible, Landlord may
enter the same by a master key or by the use of force without rendering Landlord
liable therefor and without in any manner affecting Tenant's obligations under
the Lease.
ARTICLE VII
INSURANCE AND INDEMNITY
Section 7.1 Tenant's Insurance
Tenant shall maintain, at its own cost and expense, in responsible
companies approved by Landlord, combined single limit public liability
insurance, insuring Landlord and Tenant, as their interests may appear, against
all claims, demands or actions for bodily injury, personal injury or death of
any one person in an amount of not less than $500,000.00; and for bodily injury,
personal injury or death of more than one person in any one accident in an
amount of not less than $500,000.00; and for damage to property in an amount of
not less than $500,000.00. Landlord shall have the right to direct Tenant to
increase such amounts whenever it considers them inadequate. Such liability
insurance shall also cover and include all exterior signs maintained by Tenant.
The policy of insurance may be in the form of a general coverage or floater
policy covering these and other premises, provided that Landlord is specifically
insured therein. Tenant shall carry like coverage against loss or damage by
boiler or compressor or internal explosion of boilers or compressors, if there
is a boiler or compressor in the Premises. Tenant shall maintain insurance
covering all glass forming a part of the Premises including plate glass in the
Premises and fire insurance against loss or damage by fire or windstorms, with
such endorsements for extended coverage, vandalism, malicious mischief and
special extended coverage as Landlord may require, covering 100% of the
replacement costs of any items of value, including but not limited to signs,
stock, inventory, fixtures, improvements, floor coverings and equipment. All of
said insurance shall be in form and in responsible companies satisfactory to
Landlord, and shall provide that it will not be subject to cancellation,
termination or change except after at least Thirty (30) days prior written
notice to Landlord. Any insurance procured by Tenant as herein required shall
contain an express waiver of any right of subrogation by the insurance company
against Landlord. The policies, together with satisfactory evidence of the
payment of the premiums thereon, shall be deposited with Landlord on the day
Tenant begins operations. Thereafter, Tenant shall provide Landlord with
evidence of proof of payment upon renewal of any such policy, not less than
Thirty (30) days prior to expiration of the term of such coverage. In the event
Tenant fails to obtain or maintain the insurance required hereunder, Landlord
may obtain same and any costs incurred by Landlord in connection therewith shall
be payable by Tenant upon demand. Landlord shall carry public liability
insurance covering the exterior of the Premises, including, but not limited to
the sidewalks, malls and parking lot.
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Section 7.2 Extra Hazard Insurance Premiums
Tenant agrees that it will not keep, use, sell or offer for sale in or
upon the Premises any article or permit any activity which may be prohibited by
the standard form of fire or public liability insurance policy. Tenant agrees to
pay any increase in premiums for fire and extended coverage or public insurance
which may be carried by Landlord on the Premises or the Building of which they
are a part, resulting from the type of merchandise sold or services rendered by
Tenant or activities in the Premises, whether or not Landlord has consented to
the same. In determining whether increased premiums are the result of Tenant's
use of the Premises, a schedule, issued by the organization making the insurance
rate on the Premises, showing various components of such rate, shall be
conclusive evidence of the several items and charges which make up the fire and
public liability insurance rate on the Premises.
Tenant shall not knowingly use or occupy the Premises or any part
thereof, or suffer or permit the same to be used or occupied for any business or
purpose deemed extra hazardous on account of fire or otherwise. In the event
Tenant's use and/or occupancy causes any increase of premium for the fire,
boiler and/or casualty rates on the Premises or any part thereof above the rate
for the least hazardous type of occupancy legally permitted in the Premises,
Tenant shall pay such additional premium on the fire, boiler and/or casualty
insurance policy that may be carried by Landlord for its protection against rent
loss through fire. Bills for such additional premiums shall be rendered by
Landlord to Tenant at such times as Landlord may elect, and shall be due from
and payable by Tenant when rendered in writing, but such increases in the rate
of insurance shall not be deemed a breach of this covenant by Tenant. Failure to
pay amounts due hereunder shall be a breach of the Lease.
Section 7.3 Indemnity
Tenant during the term hereof shall indemnify and save harmless
Landlord from and against any and all claims and demands whether for injuries to
persons or loss of life, or damage to property, occurring within the Premises
and immediately adjoining the Premises and arising out of the use and occupancy
of tile Premises by Tenant, or occasioned wholly or in part by any act or
omission of Tenant, its subtenants, agents, contractors, employees, servants,
lessees or concessionaires, excepting however such claims and demands, whether
for injuries to persons or loss of life or damage to property, caused by the
negligence of Landlord. If, however, any liability arises in the Common Areas
because of the negligence of Tenant, Tenant's subtenants, agents, employees,
contractors, invitees, customers or visitors, then in such event Tenant shall
hold Landlord harmless. In case Landlord shall, without fault on its part, be
made a party to any litigation commenced by or against Tenant, then Tenant shall
protect and hold Landlord harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by Landlord in connection with such
litigation. Tenant shall also pay all costs, expenses and reasonable attorneys'
fees that may be incurred or paid by Landlord in enforcing the covenants and
agreements of this Lease.
Section 7.4 Definition and Liability of Landlord
The term Landlord as used in this Lease means only the owner or the
mortgagee in possession
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for the time being of the Building in which the Premises are located or the
owner of a leasehold interest in the Building and/or the land thereunder so that
in the event of sale of the Building or an assignment of this Lease, or a demise
of the Building and/or land, Landlord shall be and hereby is entirely freed and
relieved of all obligations of Landlord hereunder and it shall be deemed without
further agreement between the parties and such purchaser(s), assignee(s) and
lessee(s) that the purchaser, assignee or lessee has assumed and agreed to
observe and perform all obligations of Landlord hereunder.
It is specifically understood and agreed that there shall be no
personal liability on Landlord in respect to any of the covenants, conditions or
provisions of this Lease; in the event of a breach or default by Landlord of any
of its obligations under this Lease, Tenant shall look solely to the equity of
Landlord in the Building for the satisfaction of Tenant's remedies.
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.1 Damage or Destruction by Fire or Other Casualty
A. Tenant shall give prompt notice to Landlord in case of fire or other
damage to the Premises or the Building containing the Premises. In the event the
Premises are damaged by fire, explosion, flood, tornado or by the elements, or
through any casualty, or otherwise, after the commencement of the term of this
Lease, the Lease shall continue in full force and effect. If the extent of the
damage is less than Fifty Percent (50%) of the cost of replacement of the
Premises, the damage shall promptly be repaired by Landlord at Landlord's
expense, provided that Landlord shall not be obligated to so repair if such
fire, explosion or other casualty is caused directly by the negligence of
Tenant, its subtenants, permitted concessionaires, or their agents, servants or
employees, and provided further that Landlord shall not be obligated to expend
for such repair an amount in excess of the insurance proceeds recovered or
recoverable as a result of such damage, and that in no event shall Landlord be
required to replace Tenant's stock in trade, fixtures, furniture, furnishings,
floor coverings and equipment. In the event of any such damage and (a) Landlord
is not required to repair as hereinabove provided, or (b) the Premises shall be
damaged to the extent of Fifty Percent (50%) or more of the cost of replacement,
or (c) the Building of which the Premises are a part is damaged to the extent of
Twenty-Five Percent (25%) or more of the cost of replacement, or (d) all
buildings (taken in the aggregate) in the Building shall be damaged to the
extent of more than Twenty-Five Percent (25%) of the aggregate cost of
replacement, Landlord may elect either to repair or rebuild the Premises or the
Building or buildings, or to terminate this Lease upon giving notice of such
election to Tenant within Ninety (90) days after the occurrence of the event
causing the damage.
B. If the casualty, repairing, or rebuilding shall render the Premises
untenantable, in whole or in part, and the damage shall not have been due to the
default or neglect of Tenant, a proportionate abatement of the Fixed Minimum
Rent shall be allowed from the date when the
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damage occurred until the date Landlord completes the repairing or rebuilding,
said proportion to be computed on the basis of the relation which the gross
square foot area of the space rendered untenantable bears to the floor area of
the Premises. If Landlord is required or elects to repair the Premises as herein
provided, Tenant shall repair or replace its stock in trade, fixtures,
furniture, furnishings, floor coverings and equipment, and if Tenant has closed
for business, Tenant shall promptly reopen for business upon the completion of
such repairs.
C. In the event the Premises or the Building or buildings shall be
damaged in whole or in substantial part within the last Twenty-Four (24) months
of the original term, or within the last Twenty-Four (24) months of the last
renewal term, if renewals are provided for herein, Landlord shall have the
option, exercisable within Ninety (90) days following such damage, of
terminating this Lease, effective as of the date of Tenant's receipt of notice
from Landlord. If any such termination occurs during the initial term, any
options for renewal shall automatically be of no further force or effect.
D. No damage or destruction of the Premises or the Building or
buildings shall allow Tenant to surrender possession of the Premises nor affect
Tenant's liability for the payment of Rent or any other covenant contained
herein, except as may be specifically provided in this Lease. Notwithstanding
any of the provisions herein to the contrary, Landlord shall have no obligation
to rebuild the Premises or the Building or buildings and may at its own option
cancel this Lease unless the damage or destruction is a result of a casualty
covered by Landlord's insurance policy.
Section 8.2 Condemnation
(a) Total: In the event the entire Premises shall be appropriated or
taken under the power of eminent domain by any public or quasi-public authority,
this Lease shall terminate and expire as of the date of title vesting in such
proceeding, and Landlord and Tenant shall thereupon be released from any further
liability hereunder. (b) Partial: If any part of the Premises shall be taken as
aforesaid, and such partial taking shall render that portion not so taken
unsuitable for the business of Tenant, as determined by Landlord, then this
Lease and the term herein shall cease and terminate as aforesaid. If such
partial taking is not extensive enough to render the Premises unsuitable for the
business of Tenant, then this Lease shall continue in effect, except that the
Fixed Minimum Rent shall be reduced in the same proportion that the floor area
of the Premises taken bears to the original floor area leased and Landlord
shall, upon receipt of the award in condemnation, make all necessary repairs or
alterations to the Building in which the Premises are located so as to
constitute the portion of the Building not taken a complete architectural unit,
but such work shall not exceed the scope of the work to be done by Landlord in
originally constructing said Building, nor shall Landlord, in any event, be
required to spend for such work an amount in excess of the amount received by
Landlord as damages for the part of the Premises so taken. "Amount received by
Landlord" shall mean that part of the award in condemnation which is free and
clear to Landlord of any collection by mortgagee for the value of the diminished
fee. (c) Termination: If more than Twenty Percent (20%) of the floor area of the
Building in which the Premises are located shall be taken as aforesaid, Landlord
may, by written notice to Tenant, terminate this Lease, such termination to be
effective as aforesaid. (d) Rent
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on Termination: If this Lease is terminated as provided in this paragraph, the
Rent shall be paid up to the date that possession is so taken by public
authority and Landlord shall make an equitable refund of any Rent paid by Tenant
in advance. (e) Award: Tenant shall not be entitled to and expressly waives all
claim to any condemnation award for any taking, whether whole or partial, and
whether for diminution in value of the leasehold or to the fee although Tenant
shall have the right, to the extent that the same shall not reduce Landlord's
award, to claim from the condemnor, but not from Landlord, such compensation as
may be recoverable by Tenant in its own right for damage to Tenant's business,
fixtures and improvements installed by Tenant at its expense.
ARTICLE IX
DEFAULT
Section 9.1 Default
Landlord may, at its option, terminate this Lease, as provided below
and take the action outlined in Paragraph 9.2 hereof, IF:
A. Tenant defaults in the payment of any Rent or any other payments
when due, and such default shall continue for Five (5) days after notice from
Landlord to Tenant; OR
B. Tenant defaults in fulfilling any of the other covenants or
obligations of this Lease on Tenant's part to be performed hereunder, and such
default has not been cured within Five (5) days after written notice from
Landlord to Tenant specifying the nature of said default; OR
C. The default so specified shall be of such a nature that the same
cannot be reasonably cured or remedied within said Five (5) day period, if
Tenant shall not in good faith have commenced the curing or remedying of such
default within such Five (5) day period and shall not thereafter diligently
proceed therewith to completion, which completion shall in no event be more than
Thirty (30) days after notice from Landlord; OR
D. Tenant shall fail to occupy the Premises on the commencement date as
fixed herein, or anytime thereafter, or shall fail to remain open for business
throughout the term of this Lease, as hereinbefore provided; OR
E. At any time during the term should there be filed by or against
Tenant or against any successor tenant then in possession, in any court,
pursuant to any statute, either of the United States or any state. a petition;
(i) In bankruptcy,
(ii) Alleging insolvency,
(iii) For reorganization,
(iv) For the appointment of a receiver or trustee,
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(v) For an arrangement under the Bankruptcy Acts, or
(vi) If a similar type of proceeding shall be filed and any such
petition or filing against Tenant has not been dismissed within a period of
twenty (20) days; OR
F. Tenant makes or proposes to make an assignment for the benefit of
creditors, OR
G. Tenant does, or permits to be done, any act which creates a
mechanic's lien or claim therefor against the Premises or the Building; OR
H. Tenant fails to furnish Landlord with a copy of any insurance policy
required to be furnished by Tenant to Landlord when due, and such default shall
continue for Thirty (30) days after written notice from Landlord, Landlord may
elect.
(i) to terminate this Lease, or
(ii) to assess and collect an administrative fee of Five Dollars
($5.00) for each day said policy has not been received in the office of Landlord
at the close of each business day.
Then the Landlord may elect to declare the entire Rent for the balance
of the term, or any part thereof, due and payable forthwith, or at the option of
the Landlord, this Lease and the term thereunder shall terminate and come to an
end on the date specified in such notice of cancellation, and Tenant shall quit
and surrender the Premises to Landlord as if the term herein ended by the
expiration of the time fixed herein, but Tenant shall remain liable as
hereinafter provided.
Section 9.2 Landlord's Rights on Default
If the notice provided shall have been given and the term shall expire
as aforesaid, or should Landlord elect to terminate this Lease, Landlord shall
have the immediate right to re-entry and may remove all persons and property
from the Premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the account of Tenant, all
without service of notice or resort to legal process, all of which Tenant
expressly waives, and Landlord shall not be deemed guilty of trespass, or become
liable for any loss or damage which may be occasioned thereby. Landlord shall
have a lien for the payment of all sums agreed to be paid by Tenant herein upon
all Tenant's property, which is to be in addition to Landlord's lien now or that
may hereafter be provided by law.
Should Landlord elect to re-enter or should it take possession pursuant
to legal proceedings or pursuant to any notice provided for by law, it may make
such alterations and repairs as may be necessary in order to relet the Premises
or any part thereof, for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rentals and upon such other terms and
conditions as Landlord, in its sole discretion, may deem advisable. Upon each
such reletting, all rentals received by Landlord from such reletting shall be
applied, first, to the payment of any indebtedness, other than Rent due
hereunder, from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including brokerage fees and to costs of such
alterations
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and repairs; third, to the payment of Rent due and unpaid hereunder, the
residue, if any, shall be held by Landlord and applied in payment of future rent
as the same may become due and payable hereunder. If such rentals received from
such reletting during any month be less than that to be paid during that month
by Tenant as set forth herein, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. Landlord shall recover
from Tenant all damages it may incur by reason of Tenant's default, including
the cost of recovering the Premises and, including charges equivalent to Rent
reserved in this Lease for the remainder of the stated term, all of which
amounts shall be immediately due and payable from Tenant to Landlord.
The parties hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other or any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
and/or claim of injury or damage.
In the event of a breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have, in addition to any other remedies which
it may have, the right to invoke any remedy allowed at law or in equity,
including injunctive relief, to enforce Landlord's rights or any of them, as if
re-entry and other remedies were not herein provided for.
In the event of any litigation arising out of enforcement of this
Lease, the prevailing party in such litigation shall be entitled to recovery of
all costs, including reasonable attorneys' fees.
Notwithstanding anything in this Lease to the contrary, Landlord
reserves all rights which any state or local laws, rules, regulations or
ordinances confer upon a Landlord against a Tenant in default. This article
shall apply to any renewals or extensions of this Lease.
This agreement shall be deemed to have been made in Dade County,
Florida and shall be interpreted, and the rights and liabilities of the parties
here determined, in accordance with the laws of the State of Florida.
Section 9.3 Non-Waiver Provisions
The failure of Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein shall not be deemed to be a waiver of
any rights or remedies that Landlord may have and shall not be deemed a waiver
of any subsequent breach or default in the terms, conditions and covenants
herein contained except as may be expressly waived in writing.
The maintenance of any action or proceeding to recover possession of
the Premises or any installment or installments of Rent or any other monies that
may be due or become due from Tenant to Landlord shall not preclude Landlord
from thereafter instituting and maintaining subsequent actions or proceedings
for the recovery or possession of the Premises or of any other monies that may
be due or become due from Tenant including all expenses, court costs and
attorneys' fees and disbursements incurred by Landlord in recovering possession
of the Premises and all costs and
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charges for the care of the Premises while vacant. Any entry or re-entry by
Landlord shall not be deemed to absolve or discharge Tenant from liability
hereunder.
Section 9.4 Inability to Perform
If Landlord is delayed or prevented from performing any of its
obligations under this Lease by reason of strike, labor disputes, or any cause
whatsoever beyond Landlord's reasonable control, the period of such delay or
such prevention shall be deemed added to the time herein provided for the
performance of any obligation by Landlord.
ARTICLE X
SECURITY
Section 10.1 Security Deposit
A. Tenant has deposited with Landlord the sum specified in Item 11 of
the Definitions to be retained by Landlord without liability for interest, as
security for the payment of all Rent and other sums of money which shall or may
be payable for the full stated term of this Lease, and any extension or renewal
thereof, and for the faithful performance of all the terms of this Lease to be
observed and performed by Tenant.
B. The Security Deposit shall not be mortgaged, assigned, transferred
or encumbered by Tenant without the prior written consent of Landlord and any
such act on the part of Tenant shall be without force or effect and shall not be
binding upon Landlord. If any of the Rent herein reserved or any other sum
payable by Tenant to Landlord shall be overdue and unpaid or should Landlord
make payments on behalf of Tenant, or if Tenant shall fail to perform any of the
terms of this Lease, then Landlord may, at its option and without prejudice to
any other remedy which Landlord may have on account thereof, appropriate and
apply said entire deposit or so much thereof as may be necessary to compensate
Landlord toward the payment of Rent or Additional Rent or loss or damage
sustained by Landlord due to breach on the part of Tenant; and Tenant shall
promptly upon demand restore said security to the original sum deposited. If
Tenant should be overdue in the payment of monthly Rent or other sums payable to
Landlord on at least two or more occasions during a year, Landlord, at its
option, may require Tenant to increase the amount of Security Deposit now held
by Landlord by an amount sufficient to cover at least two months Rent or greater
amount to be determined at the sole discretion of Landlord. In this event, upon
receipt of the additional security sum, Landlord and Tenant shall evidence such
receipt by a letter signed and acknowledged by both Landlord and Tenant to be
incorporated as part of this Lease amending Section A. hereof, stating the "New
Total Amount" so held without liability for any interest. Within Sixty (60) days
after the expiration of the tenancy hereby created, whether by lapse of time or
otherwise, provided Tenant shall not be in default hereunder and shall have
complied with all the terms, covenants and conditions of this Lease, including
the yielding up of the immediate possession to Landlord, Landlord shall, upon
being furnished with affidavits and other satisfactory evidence by Tenant that
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Tenant has paid all bills incurred by it in connection with its performance of
the terms, covenants and conditions of this Lease, return to Tenant said sum on
deposit or such portion thereof then remaining on deposit with Landlord as set
forth herein. In the event Tenant has not complied with all the obligations
provided for hereunder, Landlord may appropriate a part or a of the Security
Deposit as liquidated damages to satisfy Tenant's obligations.
Section 10.2 Personal Property
As additional security for the performance of Tenant's obligations
hereunder, Tenant hereby pledges and assigns to Landlord all the furniture,
fixtures', goods, inventory, stock and chattels, and all other personal property
of Tenant which are now or may hereafter be brought or put in the Premises, and
further grants to Landlord a security interest therein under the Uniform
Commercial Code. Upon default of the payment of Rent, assessments, charges,
penalties and damages herein covenanted to be paid by Tenant, and for the
purpose of securing the performance of all other obligations of Tenant
hereunder, and at the request of Landlord, Tenant hereby agrees to execute and
deliver to Landlord all financing statements, amendments thereto or other
similar statements which Landlord may reasonably request. Nothing herein
contained shall be deemed to be a waiver by Landlord of its statutory lien to
Rent and remedies, rights and privileges of Landlord in the case of default of
Tenant as set forth above and shall not be exclusive and, in addition thereto,
Landlord may also exercise and enforce all its rights at law or in equity which
it may otherwise have as a result of Tenant's default hereunder. Landlord is
herein specifically granted all of the rights of a secured creditor under the
Uniform Commercial Code with respect to the property in which Landlord has been
granted a security interest by Tenant, including, but not limited to, the right
to take possession of the above mentioned property and dispose of it by sale in
a commercially reasonable manner.
Section 10.3 Transfer of Deposit
In the event of a sale or transfer of the Building or any portion
thereof which includes the Premises, or in the event of the making of a lease of
the Building or of any portion, or in the event of a sale or transfer of the
leasehold estate under any such underlying lease, the grantor, transferror or
Landlord, as the case may be, shall thereafter be entirely relieved of all
terms, covenants and obligations thereafter to be performed by Landlord under
this Lease to the extent of the interest or portion so sold, transferred or
leased, and it shall be deemed and construed, without further agreement between
the parties and the purchaser, transferee or Tenant, as the case may be, has
assumed and agreed to carry out any and all covenants of Landlord hereunder;
provided that (i) any amount then due and payable to Tenant or for which
Landlord or the then grantor, transferor or Landlord would otherwise then be
liable to pay to Tenant (it being understood that the owner of an undivided
interest in the fee or any such lease shall be liable only for his or its
proportionate share of such amount) shall be paid to Tenant; (ii) the interest
of the grantor, transferor or Landlord, as Landlord, in any funds then in the
hands of Landlord or then grantor, transferor or Landlord in which Tenant has an
interest, shall be turned over, subject to such interest, to the then grantee,
transferee or Tenant; and (iii) notice of such sale, transfer or lease shall be
delivered to Tenant.
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ARTICLE XI
ADDITIONAL TENANT AGREEMENTS
Section 11.1 Mortgage Financing and Subordination
This Lease and all of Tenant's rights hereunder are and shall be
subordinate to the present mortgage upon the Building, as well as to any
existing ground lease, however, Tenant shall, upon request of either Landlord,
the holder of any mortgage or Deed of Trust now or hereafter placed upon the
Landlord's interest in the Premises or future additions thereto, and to any
ground lease now or hereafter affecting the Premises, execute and deliver upon
demand, such further instruments subordinating this Lease to the lien of any
such mortgage or mortgages, and such ground lease, provided such subordination
shall be upon the express condition that this Lease shall be recognized by the
mortgagees and ground lessors and that the rights of Tenant shall remain in full
force and effect during the term of this Lease and any extension thereof,
notwithstanding any default by the mortgagors with respect to the mortgages or
any foreclosure thereof, or any default by the ground lessee, so long as Tenant
shall perform all of the covenants and conditions of this Lease. Tenant agrees
to execute all agreements required by Landlord's mortgagee or ground lessor or
any purchaser at a foreclosure sale or sale in lieu of foreclosure by which
agreements Tenant will attorn to the mortgagee or purchaser or ground lessor.
Section 11.2 Assignment or Subletting
All assignments of this Lease or sublease or subleases of the Premises
by Tenant shall be subject to and in accordance with all of the provisions of
this Section.
Tenant may not assign this Lease or sublease the Premises, in whole or
in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to
a party other than a wholly-owned corporation or controlled subsidiary of Tenant
without first having obtained the written consent of Landlord, such consent not
to be unreasonably withheld.
Any assignment or sublease by Tenant shall be only for the purpose
specified in Section 1.4, Use of Premises, and for no other purpose, and in no
event shall any assignment or sublease of the Premises release or relieve Tenant
from any obligations of this Lease.
In the event that Tenant shall seek Landlord's permission to assign
this Lease or sublet the Premises, Tenant shall provide to Landlord the name,
address, financial statement and business experience resume for the immediately
preceding Ten (10) years of the proposed assignee or subtenant and such other
information concerning such proposed assignee or subtenant as Landlord may
require. This information shall be in writing and shall be received by Landlord
no less than Thirty (30) days prior to the effective date of the proposed
assignment or sublease. It shall be a condition to any consent by Landlord to an
assignment or sublease that Tenant shall pay to Landlord a processing fee in the
amount of $125.00 or One Percent (1%) of the annual current value of this
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Lease, whichever is greater, as reimbursement to Landlord for any and all
legally-related expenses in connection with the review and preparation of
assignment or sublease-related documents which may be incurred by Landlord in
connection therewith. Payment of such fee shall be submitted along with Tenant's
request for Landlord's consent. Any consent by Landlord to any assignment or
sublease, or to the operation of a concessionaire or licensee, shall not
constitute a waiver or the necessity for such consent to any subsequent
assignment or sublease, or operation by a concessionaire or licensee.
If Tenant is a corporation and any transfer, sale, pledge or other
disposition of more than Ten Percent (10%) of the common stock shall occur, or
voting control or power to vote the majority of the outstanding capital stock be
changed, such action shall be deemed an assignment under the terms of this Lease
and shall be subject to all the terms and conditions thereof. Any breach of the
assignment clause by Tenant will constitute a default under the terms of this
Lease and Landlord shall have all rights and remedies available to it as set
forth herein.
In the event Tenant shall sublease the entire Premises for rentals in
excess of those rentals payable hereunder, Tenant shall pay to Landlord, as
Additional Rent hereunder, all such excess rentals.
Any proposed assignee or subtenant of Tenant shall assume Tenant's
obligations hereunder and deliver to Landlord an assumption agreement in form
satisfactory to Landlord no less than Ten (10) days prior to the effective date
of the proposed assignment.
Notwithstanding any of the foregoing provisions, if Tenant is or has
been at any time in default under any of the terms of this Lease, Tenant may not
assign or sublet the Premises in whole or in part.
Section 11.3 Tenant's Notice to Landlord of Default
Should Landlord be in default under any of the terms of this Lease,
Tenant shall give Landlord prompt written notice thereof in the manner specified
in Section 12.1, Notices, and Tenant shall allow Landlord a reasonable length of
time in which to cure such default, which time shall not in any event be less
than Thirty (30) days from the date of receipt of such notice.
Section 11.4 Short Form Lease
Tenant agrees not to record this Lease without the express written
consent of Landlord.
Section 11.5 Surrender of Premises and Holding Over
A) Tenant shall give written notice to Landlord not less than One
Hundred and Eighty (180) days nor more than Two Hundred Forty (240) days prior
to the expiration of the Lease term and each extension or renewal thereof of
Tenant's intention to: (i) vacate the Premises at the end of
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the Lease term or extension or renewal; (ii) to enter into a new lease agreement
for the Premises at terms to be negotiated by Landlord and Tenant, if no such
renewal or extension rights remain. As to (ii) above, Tenant shall deliver to
Landlord an executed copy of the new lease agreement within Thirty (30) days
after receipt of said document from Landlord. In the event that Tenant 1) fails
to notify Landlord of Tenant's intention to vacate the Premises at the
expiration of the Lease term; or 2) fails to execute a new lease agreement as
specified above, Tenant shall be in default of this Lease and Landlord shall
have the right to appropriate the entire amount of the Security Deposit as
liquidated damages and to declare this Lease terminated.
B) At the expiration of the tenancy and subject to Paragraph 11.5A,
Tenant shall surrender the Premises in good condition, reasonable wear and tear
excepted, and damage by unavoidable casualty (except to the extent that the same
is covered by Landlord's fire insurance policy with extended coverage
endorsement), and Tenant shall surrender all keys for the Premises to Landlord
at the place then fixed for the payment of Rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Premises. Tenant shall
remove all its trade fixtures and any alterations or improvements, subject to
the provisions of Section 6.5, before surrendering the Premises, and shall
repair, at its own expense, any damage to the Premises caused thereby. Tenant's
obligations to observe or perform this covenant shall survive the expiration or
other termination of the term of this Lease. In the event Tenant remains in
possession of the Premises after the expiration of the tenancy created
hereunder, whether or not with the consent or acquiescence of Landlord, and
without the execution of a new lease, Tenant, at the option of Landlord, shall
be deemed to be occupying the Premises as a tenant at will on a week-to-week
tenancy and in no event on a month-to-month or on a year-to-year tenancy. The
rent during this week-to-week tenancy shall be payable weekly at twice the Fixed
Minimum Rent, and twice all other charges due hereunder, and it shall be subject
to all the other terms, conditions, covenants, provisions and obligations of
this Lease, and no extension or renewal of this Lease shall be deemed to have
occurred by such holding over. Tenant's obligations to observe or perform this
covenant shall survive the expiration or other termination of the term of this
Lease.
Section 11.6 Estoppel Certificate
Tenant agrees to provide at any time, within Ten (10) days of
Landlord's written request, a statement certifying that this Lease is unmodified
and in full force and effect or, if there have been modifications, that same are
in full force and effect as modified and stating the modifications, and the
dates to which the Fixed Minimum Rent and other charges have been paid in
advance, if any. It is intended that any such statement delivered pursuant to
this paragraph may be relied upon by any prospective purchaser or mortgagee of
the Premises.
Section 11.7 Delay of Possession
If the Landlord is unable to give possession of the Premises on the
date of the commencement of the aforesaid term by reason of the holding over of
any prior tenant or tenants or for any other reason; an abatement or diminution
of the rent to be paid hereunder shall be allowed Tenant under
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such circumstances, but nothing herein shall operate to extend the term of the
Lease beyond the agreed expiration date; and said abatement of rent shall be the
full extent of Landlord's liability to Tenant for any loss or damage to Tenant
on account of said delay in obtaining possession of the Premises.
Section 11.8 Compliance With Law, Waste And Quiet
Tenant shall comply with all governmental laws, ordinances and
regulations applicable to the use of the Premises and shall promptly comply with
all governmental orders and directives for the correction, prevention and
abatement of nuisances in, upon, or connected with the Premises, all at Tenant's
sole risk and expense. Tenant shall not commit, or suffer to be committed, any
waste upon the Premises or any nuisance, other act, or thing which may disturb
the quiet enjoyment of any other tenant in the Building in which the Premises
may be located.
Section 11.9 Rules and Regulations
Tenant's use of the Premises shall be subject, at all times during the
term of this Lease, to Landlord's right to adopt in writing, from time to time,
modify and/or rescind reasonable Rules and Regulations not in conflict with any
of the express provisions hereof governing the use of the parking areas, walks,
driveways, passageways, signs, exterior of Building, lighting and other matters
affecting other tenants in and the general management and appearance of the
Building of which the Premises are a part, but no such rule or regulation shall
discriminate against Tenant. The current Rules and Regulations are attached
hereto as Exhibit "C" and made a part hereof.
Section 11.10 Abandonment
Tenant shall not vacate or abandon the Premises at any time during the
term of this Lease, nor permit the Premises to remain unoccupied for a period
longer than Ten (10) consecutive days during the term of this Lease; and if
Tenant shall abandon, vacate or surrender the Premises, or be dispossessed by
process of law or otherwise, any personal property belonging to Tenant left on
the Premises shall, at the option of the Landlord be deemed abandoned.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Notices
Whenever notice shall or may be given to either of the parties by the
other, each such notice shall be either delivered in person or sent by
registered or certified mail, with return receipt requested.
Notice to Landlord shall be sent to the address specified in Item 14 of
the Definitions.
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Notice to Tenant shall be sent to the address specified in Item 14 of
the Definitions.
If by mail, any notice under this Lease shall be deemed to have been
given at the time it is received by the addressee.
Section 12.2 Entire and Binding Agreement
This Lease contains all of the agreements between the parties hereto,
and it may not be modified in any manner other than by agreement in writing
signed by all parties hereto or their successors in interest. Tenant shall pay
Landlord for any and all legally-related expenses which may be incurred by
Landlord in connection with the review or preparation of all lease-related
documents including, without limitation, consents, amendments, modifications and
assignments therewith. The terms, covenants and conditions contained herein
shall inure to the benefit of and be binding upon Landlord and Tenant and their
respective heirs, successors and as-signs, except as may be otherwise expressly
provided in this Lease.
Section 12.3 Provisions Severable
If any term or provision of this Lease or the application thereof to
any person or circumstance shall, to any extent, be illegal, invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those to which it is held
illegal, invalid or unenforceable shall not be affected hereby and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
Section 12.4 Captions
The captions contained herein are for convenience and reference only
and shall not be deemed as part of this Lease or construed as in any manner
limiting or amplifying the terms and provisions of this Lease to which they
relate.
Section 12.5 Relationship of the Parties
Nothing herein contained shall be deemed or construed as creating the
relationship of principal and agent or of partnership or joint venture between
the parties hereto; it being understood and agreed that neither, the method of
computing rent nor any other provision contained herein nor any acts of the
parties hereto shall be deemed to create any relationship between the parties
other than that of Landlord and Tenant.
Section 12.6 Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated Rent nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent
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be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy provided for in this Lease or available at law
or in equity.
Section 12.7 Broker's Commission
Tenant warrants that there are no claims for broker's commissions or
finder's fees in connection with its execution of this Lease and agrees to
indemnify and save Landlord harmless from any liability that may arise from such
claim, including reasonable attorneys' fees.
Section 12.8 Corporate Status
If Tenant is a corporation, Tenant's corporate status shall
continuously be in good standing and active and current with the state of its
incorporation and the state in which the Building is located at the time of
execution of the Lease and at all times thereafter and Tenant shall keep its
corporate status active and current throughout the term of the Lease or any
extensions or renewals. Tenant shall annually file with Landlord a current copy
of the Certificate of Good Standing under Seal. Failure of Tenant to keep its
corporate status active and current shall constitute a default under the terms
of the Lease. In the event this Lease is signed on behalf of Tenant by a person
in a representative capacity, each of the person or persons signing in such
capacity represents and warrants to the Landlord and its successors and assigns
that:
a. Their execution and delivery of this Lease has been duly and
validly authorized and all requisite actions have been taken
to make it valid and binding on the entity they represent.
THIS SPACE LEFT BLANK INTENTIONALLY
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b. The entity they represent will, on the date of the
commencement of this Lease. be duly organized, validly
existing and in good standing in the state of its organization
and entitled to conduct its business in the state where the
Premises is located.
In the event of a breach of the foregoing representations and
warranties, the person or persons signing this Lease on behalf of the Tenant
shall be personally responsible for the Tenant's obligations under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant above duly executed this Lease
as of the day and year first above written, each acknowledging receipt of an
executed copy hereof.
WITNESSES: LANDLORD:
MCH MEDICAL CENTER, LTD.
By: MCH PROPERTIES, INC.,
as SOLE GENERAL PARTNER
By:
------------------------------- ------------------------------
XXXXX X. XXXXXXXXX,
President
------------------------------
WITNESSES: TENANT:
COASTAL BHC, INC.
By:
------------------------------- ------------------------------
XXXX X. XXXXXXX,
Chief Executive Officer
------------------------------
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL C:
A portion of the North 3/4 of the NW 1/4 of the NW 1/4 of the NW 1/4 of Section
3, Township 55 South, Range 40 East, Dade County, Florida, being more
particularly described as follows:
Commencing at the Northwest corner of the NW 1/4 of said Section 3; thence run
South 0(0)26'35" West along the West line of the said NW 1/4 of Section 3 for a
distance of 55.00 feet to a point on the South right-of-way line of S.W. 00xx
xxxxxx (Xxxxx Xxxxxxx Xxxxx); thence run East along the said South right-of-way
line of X.X. 00xx Xxxxxx (Xxxxx Xxxxxxx Xxxxx), said right-of-way line being
parallel to the North line of the said NW 1/4 of Section 3, for a distance of
422.83 feet to the point of beginning of the parcel of land herein described;
thence from the above established point of beginning run South 0(0)26'35" West
for a distance of 276.42 feet; thence run West for a distance of 122.32 feet;
thence run South 0(0)26'35" West for a distance of 158.40 feet to a point of
intersection with the South line of the aforesaid North 3/4 of the NW 1/4 of the
NW 1/4 of the NW 1/4 of Section 3; thence run South 89(0)44'09" East along the
said line of the North 3/4 of the NW 1/4 of the NW 1/4 of the NW 1/4 of Section
3 for a distance of 138.98 feet to a point of intersection with the
northwesterly right-of-way line of X.X. 00xx Xxxxxx, said point lying on a
circular curve concave to the northwest, said point bearing South 49(0)58'28"
East from the center of said curve; thence run Northwesterly along the said
Northwesterly right-of-way line of X.X. 00xx Xxxxxx and along the arc of said
circular curve to the left having for its elements a radius of 914.93 feet and a
central angle of 28(0)29'24" for an arc distance of 454.94 feet to a point of
compound curvature with a circular curve to the left; thence to the left along
said curve having for its elements a radius of 25.00 feet and a central angle of
101(0)32'08" for an arc distance of 44.30 feet to the point of tangency, said
point lying on the aforesaid South right-of-way line of X.X. 00xx Xxxxxx (Xxxxx
Xxxxxxx Xxxxx); thence run West along the said right-of-way line of X.X. 00xx
Xxxxxx (Xxxxx Xxxxxxx Xxxxx) for a distance of 184.63 feet to the point of
beginning.
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EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, or halls shall not be obstructed or encumbered by any
TENANT or used for any purpose other than ingress and egress to and from the
demised premises.
2. No awnings or other projections shall be attached to the outside
walls of the building without the prior written consent of the LANDLORD. No
curtains, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the demised premises, without the prior
written consent of the LANDLORD. Such awnings, projections, curtains, blinds,
shades, screens, or other fixtures must be of a quality, type, design, and
color, and attached in the manner approved by the LANDLORD.
3. No sign, advertisement, notice, or other lettering shall be
exhibited, inscribed, painted, or affixed by any TENANT on any part of the
outside or inside or the demised premises or building without the prior written
consent of the LANDLORD. In the event of the violation of the foregoing by any
TENANT, LANDLORD may remove same without any liability, and may charge the
expense incurred by such removal to the TENANT or TENANTS violating this rule.
Interior signs on doors and directory tablet shall be inscribed, painted, or
affixed at the expense of the TENANT, and shall be of a size, color, and style
acceptable to the LANDLORD.
4. The sashes, sash door, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways, or other public places in the
building shall not be covered or obstructed by any TENANT, nor shall any
bottles, parcels or other articles be placed on the windowsills.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the TENANT
who, or whose servants, employees, agents, visitors, or licensees shall have
caused the same.
6. No TENANT shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting, or stringing of wires shall be permitted, except with the prior
written consent of the LANDLORD, and as it may direct.
7. No bicycles, vehicles, or animals of any kind shall be brought into
or kept in or about the premises, and no cooking shall be done or permitted by
any TENANT on said premises. No TENANT shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the demised premises.
8. No TENANT shall make, or permit to be made, any unseemly or
disturbing noises
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or disturb or interfere with occupants of this or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, talking machine, unmusical noise, whistling, singing, or in
any other way. No TENANT shall throw anything out of the doors, windows, or
skylights, or down the passageways.
9. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any TENANT, nor shall any changes he made in existing
locks or the mechanism thereof. Each TENANT must, upon termination of his
tenancy, restore to the LANDLORD all keys of offices and toilet rooms, either
furnished to, or otherwise procured by, such TENANT and in the event of the loss
of any keys so furnished, such TENANT shall pay to the LANDLORD the cost
thereof.
10. All removals, or the carrying in or out of any safes, freight,
furniture, bulky matter of any description must take place during the hours
which the LANDLORD or its agent may determine from time to time. The LANDLORD
reserves the right to prescribe the weight and position of all safes, which must
be placed upon 2-inch thick plank strips to distribute the weight. The moving of
safes or other fixtures or bulky matter of any kind must be made after previous
notice to the Manager of the building. Any damage done to the building or to the
tenants or to other persons in bringing in or removing safes, furniture or other
bulky or heavy articles shall be paid for by TENANT.
11. No TENANT shall occupy or permit any portion of the premises
demised to him to be used for manufacturing or for the possession, storage,
manufacture, or sale of liquor or narcotics or as a xxxxxx or manicure shop, or
as an employment bureau, unless lease so provides. No TENANT shall engage or pay
any employees on the demised premises, except those actually working for such
TENANT on said premises, nor advertise for laborers giving and address at said
premises.
12. Each TENANT, before closing and leaving the said premises at any
time, shall see that all windows are closed. All tenants and occupants must
observe strict care not to leave their windows open when it rains, and for any
default or carelessness in these respects, or any of them, shall make good any
injury sustained by other tenants, and to the LANDLORD for damage to paint,
plastering or other parts of the building, resulting from default or
carelessness.
13. The premises shall not be used for gambling, lodging or sleeping or
for any immoral or illegal purposes.
14. The requirements of TENANTS will be attended to only upon
application at the office of the building. Employees shall not perform any work
or do anything outside of the regular duties, unless under special instructions
from the office of the LANDLORD.
15. Canvassing, soliciting, and peddling in the building is prohibited
and each TENANT shall cooperate to prevent the same.
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16. TENANT shall have the free use of the mail chutes installed in the
building, but the LANDLORD in no way guarantees the efficiency of the said mail
chutes and shall be in no way responsible for any damage or delay which may
arise from the use thereof.
17. The LANDLORD specifically reserves the right to refuse admittance
to the building after 7 p.m. daily, or on Sundays or on legal holidays, to any
person or persons who cannot furnish satisfactory identification, or to any
person or persons who, for any other reason in the LANDLORD'S judgment, should
be denied access to the premises. The LANDLORD, for the protection of the
TENANTS and their effects may prescribe hours and intervals during the night, on
Sundays and Holidays, when all persons entering and departing the Building may
be required to enter their names, the offices to which they are going or from
which they are leaving, and the time of entrance or departure in a Register
provided for that purpose by the LANDLORD.
18. The LANDLORD may retain a pass key to the leased premises, and be
allowed admittance thereto at all times to enable its representative to examine
the said premises.
19. The LANDLORD reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
needful for the safety, care and cleanliness of the premises, and for the
preservation of good order therein, and any such other or further rules and
regulations shall be binding upon the parties hereto with the same force and
effect as if they had been inserted herein at the time of the execution hereof.
20. No TENANT, nor any of the TENANT'S servants, employees, agents,
visitors, or licensees, shall at any time bring or keep upon the demised
premises any inflammable, combustible, or explosive fluid, chemical or
substance.
21. PARKING. The TENANT agrees to observe all parking rules and
regulations as established by the LANDLORD, or his Agent, also, the TENANT
agrees to cooperate to see that. all employees, clients, customers, or
suppliers, also observe the parking arrangements on all parking areas controlled
by ownership or leased by the LANDLORD.
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COVENANT RUNNING WITH THE LAND IN FAVOR OF
METROPOLITAN DADE COUNTY
The undersigned. I.R.E. Real Estate Income Fund, Ltd. as the owner(s)
of the following described real property (hereinafter called "the Property"):
SEE ATTACHED EXHIBIT "A"
Located at 0000 XXXXX XXXXXXX XXXXX, XXXXX, XXXXXXX, pursuant to Section
24-12.1(5)(a) of the Code of Metropolitan Dade County, hereby submit(s) this
executed covenant running with the liquid in favor of Metropolitan Dade County:
The undersigned agree(s) and covenant(s) to the following:
1. Hazardous materials, shall not be used, generated, handled, disposed
of, discharged or stored on that portion of the Property within the Northwest
Wellfield protection area or within the West Wellfield Interim Protection Area
or within the basic wellfield protection area of any public utility potable
water supply well and hazardous wastes shall not be used, generated, handled,
disposed of, discharged or stored on that portion of the Property within the
average day pumpage wellfield protection area but not within the basic wellfield
protection area of the Xxxxxxxxx Xxx Wellfield, Snapper Creek Wellfield,
Southwest Wellfield, Miami Springs Lower Wellfield, Miami Springs Upper
Wellfield, Xxxx X. Xxxxxxx Wellfield or Hialeah Wellfield unless a variance is
granted by the Environmental Quality Control Board, pursuant to Chapter 24 of
the Code of Metropolitan Dade County, and if so granted; said hazardous
materials or hazardous wastes may be used, handled, generated, disposed of,
discharged or stored on the property only to the extent permitted by any such
variance from the Environmental Quality Control Board of Metropolitan Dade
County.
2. Fuels and lubricants required for rockmining operations (lake
excavations, concrete batch plants, rock crushing and aggregate plants) within
the Northwest Wellfield protection area or within the West Wellfield interim
protection area; electrical transformers serving non-residential land uses;
small quantity generators of hazardous wastes as defined in Chapter 24 of the
Metropolitan Dade County Code within the average day pumpage wellfield
protection area but not within the basic wellfield protection area of the
Xxxxxxxxx Xxx Wellfield, Snapper Creek Wellfield, Southwest Wellfield, Miami
Springs Lower Wellfield, Miami Springs Upper Wellfield, Xxxx X. Xxxxxxx
Wellfield or Hialeah Wellfield; and existing land uses required by the director
or his designee to correct violations of this chapter; shall not be prohibited
when the following water pollution prevention and abatement measures and
practices will be provided:
(i) Monitoring and detection of water pollution caused by
hazardous materials, and
(ii) Secondary containment of water pollution caused by hazardous
materials, and
(iii) Inventory control and record-keeping of hazardous materials,
and
38
(iv) Stormwater management of water pollution caused by hazardous
materials, and
(v) Protection and security of facilities utilized for the
generation, storage, usage, handling, disposal or discharge of
hazardous materials.
Said water pollution prevention and abatement measures and practices shall be
subject to the approval of the director of the department of environmental
resources management or his designee.
3. The use, handling or storage of factory pre-packaged products
intended primarily for domestic use or consumption determined by the director of
the department of environmental resources management or his designee to be
hazardous materials shall not be prohibited, provided however, that:
(i) The use, handling or storage of said factory pre-packaged
products occurs only within a building, and
(ii) The non-residential land use is an office building use (or
equivalent municipal land use) or a business district use (or
equivalent municipal land use) engaged exclusively in retail
sales of factory pre-packaged products intended primarily for
domestic use or consumption, and
(iii) The non-residential land use is served or is to be served by
an operable public water main and an operable public sanitary
sewer, and
(iv) Said building is located more than thirty (30) days' travel
time from any public utility potable water supply well.
4. Prior to the entry into a landlord-tenant relationship with respect
to the Property, the undersigned agree(s) to notify in writing all proposed
tenants of the Property of the existence and contents of this Covenant.
5. The undersigned agree(s) and covenant(s) that this Covenant and the
provisions contained herein may be enforced by the Director of the Department of
Environmental Resources Management by preliminary and permanent. prohibitory and
mandatory injunctions as well as otherwise provided for by law or ordinance.
6. This agreement and Covenant shall be recorded in the Public Records
of Dade County, Florida and the provisions hereof shall constitute a Covenant
Running With the Land and shall remain in full force and effect and be binding
upon the undersigned. their heirs, legal representatives, estates, successors,
grantees and assigns.
7. This agreement and Covenant shall upon request by the undersigned be
released by the director of the Department of Environmental Resources Management
or his designee when the
-2-
39
director or his designee determines that the Property is neither within the
Northwest Wellfield protection area nor within the West Wellfield interim
protection area nor within the average day pumpage wellfield protection area of
the Xxxxxxxxx Xxx Wellfield, Snapper Creek Wellfield, Southwest Wellfield, Miami
Springs Lower Wellfield, Miami Springs Upper Wellfield, Xxxx X. Xxxxxxx
Wellfield or Hialeah Wellfield nor within the basic wellfield protection area of
any public utility potable water supply well.
IN WITNESS WHEREOF, the undersigned have caused this Covenant to be
executed this____ day of ______________, 19__.
OWNER(S) I.R.E. REAL ESTATE INCOME FUND,
LTD. a dissolved Florida
limited partnership acting by
and through I.R.E. Income
Advisors, Corp., a Florida
corporation, its Managing
General Partner
------------------------------
By:
------------------------------ ------------------------------
Xxxx X. Xxxxxxx
Title (if any) Senior Vice President
------------------------------ ------------------------------
Witnesses As to Owner(s) Title (if any)
STATE OF FLORIDA
COUNTY OF DADE
BEFORE ME, personally appeared XXXX X. XXXXXXX, SENIOR, VICE PRESIDENT
to me well known to be the person(s) described in and who executed the foregoing
instrument, and acknowledge to and before me that they executed said instrument
under oath, and for the purposes therein expressed.
WITNESS my hand and official seal this ____ day of ___________, 19__.
--------------------------------------------
Notary Public, State of Florida at Large
-3-
40
EXHIBIT "A"
A portion of the North 3/4 of the NW 1/4 of the NW 1/4 of the NW 1/4 of Section
3, Township 55 South, Range 40 East, Dade County, Florida, being more
particularly described as follows:
Commencing at the Northwest corner of the NW 1/4 of said Section 3; thence run
South 0 degrees 26 minutes 35 seconds West along the West line of the said NW
1/4 of Section 3 for a distance of 55.00 feet to a point on the South
right-of-way line of X.X. 00xx Xxxxxx (Xxxxx Xxxxxxx Xxxxx); thence run East
along the said South right-of-way line of X.X. 00xx Xxxxxx (Xxxxx Xxxxxxx
Xxxxx), said right-of-way line being parallel to the North line of the said NW
1/4 of Section 3, for a distance of 422.83 feet to the point of beginning of the
parcel of land herein described; thence from the above established point of
beginning run South 0 degrees 26 minutes 35 seconds West for a distance of
276.42 feet; thence run West for a distance of 122.32 feet; thence run South 0
degrees 26 minutes 35 Seconds West for a distance of 158.40 feet to a point of
intersection with the South line of the aforesaid North 3/4 of the NW 1/4 of the
NW 1/4 of the NW 1/4 of Section 3; thence run South 89 degrees 44 minutes 09
seconds East along the said line of the North 3/4 of the NW 1/4 of the NW 1/4 of
the NW 1/4 of Section 3 for a distance of 138.98 feet to a point of intersection
with the northwesterly right-of-way line of X.X. 00xx Xxxxxx, said point lying
on a circular curve concave to the northwest, said point bearing South 49
degrees 58 minutes 28 seconds East from the center of said curve; thence run
Northwesterly along the said Northwesterly right-of-way line of X.X. 00xx Xxxxxx
and along the arc of said circular curve to the left having for its elements a
radius of 914.93 feet and a central angle of 28 degrees 29 minutes 24 Seconds
for an are distance of 454.94 feet to a point of compound curvature with a
circular curve to the left; thence to the left along said curve having for its
elements a radius of 25.0 feet and a central angle of 101 degrees 32 minutes 08
seconds for an arc distance of 44.0 feet to the point of tangency, said point
lying on the aforesaid South right-of-way line of X.X. 00xx Xxxxxx (Xxxxx
Xxxxxxx Xxxxx); thence run Xxx along the said right-of-way line of X.X. 00xx
Xxxxxx (Xxxxx Xxxxxxx Xxxxx) for a distance of 184.63 feet to the point of
beginning.
(0000 Xxxxx Xxxxxxx Xxxxx)
41
EXHIBIT "B"
SITE PLAN - OFFICE BUILDINGS FOR LENNAR CORP.
MAP
ADDENDUM TO LEASE ("LEASE")
BETWEEN MCH PROPERTIES, INC. ("LANDLORD")
AND COASTAL BHC, INC. ON BEHALF OF COASTAL COMMUNITY BANK (IN ORGANIZATION)
("TENANT")
This Addendum is hereby made a part of the referenced Lease executed on
even date hereto for property known as 4,000 square feet on the first floor of
the North end of Building C of Lennar Medical Center, 8700 North Xxxxxxx Drive,
Miami, Florida.
LANDLORD and TENANT agree that the following provisions be added to the
Lease:
1) An additional section to Article 9 of the Lease which refers to
certain requirements of the Florida Department of Banking and Finance and the
Federal Deposit Insurance Corporation with respect to regulatory takeover and
receivership:
Section 9.5 REGULATORY TAKEOVER; APPOINTMENT OF RECEIVER OR
LIQUIDATOR BY REGULATOR
Notwithstanding any other provisions contained in this lease,
in the event the Lessee is (a) closed or taken over by the banking
authority of the State of Florida, or other financial institution
supervisory authority, or (b) Lessee or its successors or assignees
shall become insolvent or bankrupt, or if it or their interests under
this lease shall be levied upon or sold under execution or other legal
process, the Lessor may terminate the lease only with the concurrence
of such banking authority or other bank supervisory authority or any
receiver or liquidator appointed by such authority, and any such
authority shall in any event have the election either to continue or to
terminate the lease: Provided, that in the event this lease is
terminated, the maximum claim of Lessor for damages or indemnity for
injury resulting from the rejection or abandonment of the Unexpired
term of the lease shall in no event be in an amount exceeding the rent
reserved by the lease, without acceleration, for the year next
succeeding the date of the surrender of the premises to the Lessor, or
the date of re-entry of the Lessor, whichever first occurs, whether
before or after the closing of the institution, plus an amount equal to
the unpaid rent accrued, without acceleration up to such date.
2) An additional section regarding signage:
Tenant shall have the right to install an illuminated,
detached sign at the entrance to the leased premises of a size no
larger than the sign currently in use by the present tenant. Such sign
will be installed at Tenant's sole expense after approval of Landlord
of the sign, its design and placement.
3) An additional section regarding parking:
Tenant shall be entitled to the exclusive use of seven (7)
parking spaces located in a separate,
42
gated lot immediately adjacent to the leased premises. Tenant shall pay
Landlord, in addition to the monthly rent, the sum of $65.00 per space, per
month for a yearly total of $5,460.00
43
Except as modified in this instrument the Lease remains in full force
and effect as of the day first executed.
Dated this __ day of _____________, 1998.
WITNESSES LANDLORD:
MCH PROPERTIES, INC., a Florida Corporation
By:
------------------------------ ---------------------------------------
Xxxxx Xxxxxxxxx, President
TENANT:
COASTAL BHC, INC., a Florida corporation
on behalf of COASTAL COMMUNITY BANK
(in organization)
------------------------------
By:
------------------------------ ----------------------------------------
Xxxx X. Xxxxxxx, Chief Executive Officer
