Exhibit 10.1
COMMERCIAL LEASE
THE TWO SOUTH ORANGE AVENUE BUILDING
ORLANDO, FLORIDA
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LEASE TABLE OF CONTENTS
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ARTICLE
NUMBER
1. BASIC LEASE TERMS
2. GRANTING AND RENT PROVISIONS
3. OCCUPANCY, USE, OPERATIONS
4. UTILITIES
5. REPAIRS AND MAINTENANCE
6. ALTERATIONS AND IMPROVEMENT
7. CASUALTY AND INSURANCE
8. CONDEMNATION
9. ASSIGNMENT OR SUBLEASE
10. LIEN
11. DEFAULT AND REMEDIES
12. DEFINITIONS AND MISC. MATTERS
INDEX OF EXHIBITS
"A" LEGAL DESCRIPTION OF BUILDING
"B" FLOOR PLAN
"C" LEASEHOLD IMPROVEMENTS AGREEMENT
"D" GUARANTY OF LEASE
"E" RULES AND REGULATIONS
"F" ACCEPTANCE OF PREMISES
"G" RENT SCHEDULE
"H" ADDENDUM
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COMMERCIAL LEASE
THE TWO SOUTH ORANGE AVENUE BUILDING
ORLANDO, FLORIDA
THIS LEASE, made as of _______________________________, by and between
TWO SOUTH ORANGE STREET, LLC ("Landlord"), and ADMIRALTY BANK, a Florida banking
corporation ("Tenant").
ARTICLE 1 - BASIC LEASE TERMS
For the purpose of this Lease, the following terms shall have the meanings set
forth below:
1.1 Building. The Building (including the Leased Premises) known as The Two
South Orange Avenue Building, located on that tract of land (the
"Land") described on Exhibit A hereto, together with all other
buildings, structures, fixtures and other improvements located thereon
from time to time. The Building and the Land are collectively referred
to herein as the "Property".
1.2 Leased Premises. The floor space and interior wall and ceiling space of
that portion of the Building outlined in Exhibit B, together with the
nonexclusive right to use the Common Area as defined herein, resulting
in an aggregate of approximately 8,792 rentable square feet.
1.3 Lease Term. Ten (10) years and no months, beginning on the Commencement
Date.
Option Term: The term of the lease my be extended for two (2) five (5)
year terms (the "Option Terms"). Tenant shall exercise the options
granted herein providing written notice to Landlord at least ninety
(90) days prior to the end of the Lease Term.
1.4 Commencement Date. The "Commencement Date" shall be the earlier of
February 1, 2001, or the date upon which a Certificate of Occupancy for
the Leased Premises is issued. The Commencement Date shall constitute
the commencement of the term of this Lease for all purposes, whether or
not Tenant has actually taken possession.
1.5 Base Rent. The first year Base Rent is $14,653.33 per month, plus
applicable Florida sales tax. See Exhibit G for Rent Schedule for
succeeding years.
1.6 Security Deposit. The Security Deposit is $14,653,33.
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1.7 Addresses:
Landlord's Address Tenant's Address
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TWO SOUTH ORANGE STREET, LLC ADMIRALTY BANK
c/o Kuhn Managment, Inc. 4400 PGA Blvd.
Two South Orange Avenue, Suite 201 Palm Beach Gardens, Florida 33410
Orlando, Florida 32801
Attn: Cameron B. Kuhn
Copy to: Copy to:
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Stump, Storey & Callahan, P.A. James J. Wheeler, P.A.
Post Office Box 3388 Broad & Cassel
Orlando, Florida 32802-3388 7777 Glades Road, Ste. 300
Attn: D. Paul Dietrich, Esq. Boca Raton, FL 33434
Landlord and Tenant, by written notice to the other may change from time to time
the foregoing addresses, and Landlord, by written notice to Tenant, may notify
Tenant from time to time of the appointment of a Building Manager and such
Manager's address.
1.8 Permitted Use. General office space, including all banking purposes and
a retail bank operation.
1.9 Common Areas. Such areas, lobbies, elevators, staircases, aisles,
sidewalks, curbs, parking lots or spaces, delivery passages, loading
areas, lighting facilities, and all other areas situated on or in the
Property which are designated by Landlord, from time to time, for use
by all tenants of the Property in common.
1.10 Lease Year. Each succeeding twelve (12) month period commencing with
the first day of the first full calendar month of the Lease Term.
1.11 Intentionally Left Blank.
1.12 Intentionally Left Blank.
1.13 Guarantor. The guarantor of Tenant's obligations under this Lease
pursuant to the Guaranty of Lease, if any, executed for the benefit of
Landlord. Said Guarantor is, as of the date of execution hereof: None
1.14 Rules and Regulations. The Building shall be operated as set forth in
the rules and regulations for the Building, a copy of which are
attached hereto as Exhibit E.
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ARTICLE 2 - GRANTING AND RENT PROVISIONS
2.1 Grant of Premises. In consideration of the obligation of Tenant to pay
the rent and other charges as provided in this Lease and in
consideration of the performance by Tenant of the other terms and
provisions of this Lease, Landlord hereby leases the Leased Premises to
Tenant during the Lease Term, subject to the terms and provisions of
this Lease.
2.2 Base Rent. Tenant agrees to pay monthly as base rent during the term of
this Lease the sum of money set forth in Section 1.5 of this Lease,
which amount shall be payable to Landlord at the address shown above or
at such other address that Landlord in writing shall notify Tenant. A
monthly installment of base rent shall be due and payable on or before
the first day of each calendar month beginning February1, 2001, and
continuing monthly during the term of this Lease, without demand,
offset or deduction; provided, if the Commencement Date should be a
date other than the first day of a calendar month, the monthly rental
set forth above shall be prorated to the end of that calendar month,
and all succeeding installments of rent shall be payable on or before
the first day of each succeeding calendar month during the term of this
Lease. Tenant shall pay, as additional rent, all other sums due under
this Lease.
2.3 Additional Rental. In addition to the Base Rent, Tenant shall pay to
Landlord as "Additional Rent" the "Tenant's proportionate share" of
"Insurance" and "Taxes" (in excess of the "Base Year", as hereinafter
defined) and "Tenant's share of utility charges." As used herein the
term:
(1) "Tenant's proportionate share" shall mean sixteen and
nine-tenths percent (16.9%), which is the proportion that the
square footage of the Leased Premises bears to the Building's
net rentable square footage.
(2) "Insurance" shall mean Landlord's cost of casualty and
liability insurance applicable to the commercial portions of
the Building, the common areas of the Building or the rents
(however the term may be defined) receivable therefrom or any
part thereof, or any use thereof, or any facility located
therein or thereon or used in conjunction therewith .
(3) "Taxes" shall mean all impositions, taxes, assessments
(special or otherwise), water and sewer connection charges and
rents, and other governmental liens or charge of any and every
kind, nature and sort whatsoever, ordinary and extraordinary,
foreseen and unforeseen, including all taxes whatsoever
attributable in any manner to the commercial portion of the
Building, the common areas of the Building or the rents
(however the term may be defined) receivable therefrom or any
part thereof, or any use thereof, or any facility located
therein or thereon or used in conjunction therewith or any
charge or other payment required to be paid to any
governmental authority, whether or not any
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of the foregoing shall be designated "real estate tax", "sales
tax", "rental tax", "excise tax", "business tax", or
designated in any other manner.
(4) "Base Year" shall mean calendar year 2001.
(5) "Tenant's share of utility charges" shall mean 16.9% of the
charges applicable to utilities consumption within the
Building.
Landlord shall notify Tenant within thirty (30) days of the date hereof
and within thirty (30) days after the end of each calendar year during
the lease Term of the amount which Landlord estimates (as evidenced by
budgets prepared by Landlord, based on past expenses and known charges)
will be the amount of Tenant's proportionate share of Insurance and
Taxes for the then current calendar year. Within ninety (90) days
following the end of each calendar year during the Term hereof,
Landlord shall submit to Tenant a statement showing the actual amount
due from Tenant with respect to Insurance and Taxes for the past
calendar year. Within thirty (30) days after receipt by Tenant of said
statement, Tenant shall have the right in person to inspect Landlord's
books and records, at Landlord's office, during normal business hours,
after four days prior written notice, as they pertain to the Insurance
and taxes for the commercial portion of Building for the calendar year
covered by said statement. Said statement shall become final and
conclusive between the parties as to the matters set forth therein
unless Landlord receives written objections with respect thereto within
said thirty (30) day period. Any balance shown to be due pursuant to
said statement shall be paid by Tenant to Landlord within thirty (30)
days following Tenant's receipt thereof. Anything herein to the
contrary notwithstanding, Tenant shall not delay or withhold payment of
any balance shown to be due pursuant to the statement rendered by
Landlord to Tenant because of any objection which Tenant may raise with
respect thereto and Landlord shall immediately credit any overpayment
found to be owing to Tenant against Tenant's proportionate share of
Insurance and Taxes for the then current calendar year (and future
calendar years, if necessary) upon the resolution of said objection or,
if at the time of the resolution of said objection of the Lease Term
has expired immediately refund to Tenant any overpayment found to be
owing to Tenant.
The Tenant agrees to pay monthly as additional rent the Tenant's share
of utility charges applicable to utilities consumption within the
Leased Premises. Landlord shall have the option to separately meter the
Lease Premises or any portion thereof and submit invoices directly to
Tenant therefor.
2.4 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if any monthly rental payment is not received by
Landlord on or before the fifteenth (15th) day of the month for which
the rent is due, or if any other payment hereunder due Landlord by
Tenant is not received by Landlord on or before the fifteenth (15th)
day of the month next following the month in which Tenant was invoiced,
a late payment charge of five percent (5%) of such past due amount
shall become due and payable in addition to such amounts owed under
this Lease.
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2.5 Security Deposits. Intentionally left blank.
2.6 Relocation Option. Intentionally left blank.
2.7 Holding Over. If Tenant does not vacate the Leased Premises upon the
expiration or earlier termination of this Lease, Tenant shall be a
tenant at sufferance for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period, except
that, if such holdover is without the express consent of Landlord,
Tenant shall pay Landlord on demand (in addition to additional rent and
any other sums payable under this Lease) as base rental for the period
of such holdover an amount equal to twice the base rent which would
have been payable by Tenant had the holdover period been a part of the
original term of this Lease (without waiver of Landlord's right to
recover damages as permitted by law). If such holdover is with the
express consent of Landlord, such Base Rent during the holding period
shall be an amount equal to 125% of the Base Rent which would have been
otherwise payable. Tenant shall indemnify Landlord against all claims
made by any tenant or prospective tenant against Landlord resulting
from delay by Landlord in delivering possession of the Leased Premises
to such other tenant or prospective tenant as a result of any
non-consensual holdover by Tenant.
ARTICLE 3 - OCCUPANCY, USE AND OPERATIONS
3.1 Use and Operation of Tenant's Business. Tenant warrants and represents
to Landlord that the Leased Premises shall be used and occupied only
for the purpose set forth in Section 1.8. Tenant shall occupy the
Leased Premises, conduct its business and control its agents,
employees, invitees and visitors in such a manner as is lawful,
reputable and will not create a nuisance to other tenants in the
Property. Tenant shall in good faith continuously throughout the Lease
Term conduct and carry on its business in the entire Leased Premises.
Tenant and its employees and customers shall have the nonexclusive
right to use the Common Areas in common with Landlord, other tenants of
the Property and other persons designated by Landlord, subject to
reasonable rules and regulations governing use that Landlord from time
to time prescribes. Tenant shall not solicit business, distribute
handbills or display merchandise within the Common Areas, or take any
action which would interfere with the rights of other persons to use
the Common Areas. Tenant shall not permit any operation which emits any
odor or matter which intrudes into other portions of the Property, use
any apparatus or machine which makes undue noise or causes vibration in
any portion of the Property or otherwise interfere with, annoy or
disturb any other tenant in its normal business operations or Landlord
in its management of the Property. Tenant shall neither permit any
waste on the Leased Premises nor allow the Leased Premises to be used
in any way which would, in the opinion of Landlord, be extra hazardous
on account of fire or
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which would in any way increase or render void the fire insurance on
the Property.
3.2 Signs. No signs of any type or description shall be erected, placed or
painted in or about the Leased Premises or the Property without the
Landlord's prior written consent. Notwithstanding the foregoing
Landlord hereby consents to either (1) unlit street level signs on the
northwest column of the Building facing Central Avenue and Orange
Avenue, or (2) lit letter signs between the first and second floors of
the Building exterior of the Leased Premises facing Central Avenue and
Orange Avenue, subject to permitability. All signage shall be designed,
manufactured, and installed and submitted for permitting at Tenant's
sole expense. Landlord shall allow signage free of charge.
3.3 Compliance with Laws, Rules and Regulations. Landlord represents, to
the best of its knowledge, that the Building is constructed to satisfy
all applicable local, state and federal codes and requirements,
including all requirements of the Americans with Disabilities Act, and
shall maintain said compliance during the term of this Lease. Tenant,
at Tenant's sole cost and expense, shall comply with all laws,
ordinances, orders, rules and regulations of state, federal, municipal
or other agencies or bodies having jurisdiction over the use, condition
or occupancy of the Leased Premises. Tenant shall procure at its own
expense all permits and licenses required for the transaction of its
business in the Leased Premises. Tenant will comply with the rules and
regulations of the Property as adopted by Landlord from time to time; a
copy of the current Rules and Regulations is set forth on a schedule
attached to this Lease. If Tenant is not complying with such rules and
regulations, if Tenant is in any way not complying with this Article 3,
then, notwithstanding anything to the contrary contained herein, after
written notice to Tenant and expiration of a five (5) day cure period,
Landlord may, at its election, enter the Leased Premises without
liability therefor and fulfill Tenant's obligations. Tenant shall
reimburse Landlord on demand for any expenses which Landlord may incur
in effecting compliance with Tenant's obligations and agrees that
Landlord shall not be liable for any damages resulting to Tenant from
such action. Landlord shall have the right at all times to change and
amend the rules and regulations in any reasonable manner as it may deem
advisable for the safety, care, cleanliness, preservation of good order
and operation or use of the Property or the Leased Premises. All
changes and amendment to the rules and regulations of the Property will
be subject to reasonable notice to Tenant forwarded by Landlord to
Tenant in writing and shall thereafter be carried out and observed by
Tenant.
3.4 Inspection. Landlord or its authorized agents shall at any and all
reasonable times during Tenant's regular business hours have the right
to enter the Leased Premises to inspect the same, to show the Leased
Premises to prospective mortgagees, purchasers or prospective tenants,
and to alter, improve or repair the Leased Premises or any other
portion of the Property if such alterations, improvements or repair are
reasonably
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required by any governmental entity or deemed reasonably necessary by
Landlord. Tenant hereby waives any claim for abatement or reduction of
rent or for any damages for injury or inconvenience to or interference
with Tenant's business, for any loss of occupancy or use of the Leased
Premises, and for any other loss occasioned thereby other than any loss
or damage occasioned by the gross negligence or willful misconduct of
Landlord or its agents. Tenant shall not change Landlord's lock system
or in any other manner prohibit Landlord from entering the Leased
Premises. Landlord shall have the right at all times to enter the
Leased Premises by any means in the event of an emergency without
liability therefor. In the event Landlord enters the Leased Premises at
a time other than Tenant's regular business hours Landlord shall notify
Tenant and endeavor to be accompanied by Tenant or Tenant's agent.
3.5 Personal Property and Rent Taxes. Tenant shall be liable for all
tangible personal property taxes levied against leasehold improvements,
merchandise, personal property, trade fixtures of Tenant and all other
taxable property located in the Leased Premises. If any such taxes for
which Tenant is liable are levied against Landlord or Landlord's
property, Tenant shall pay to Landlord, upon demand, that part of such
taxes for which Tenant is primarily liable pursuant to the terms.
Tenant shall pay when due any and all Florida sales taxes related to
Tenant's use and operation of its business in the Leased Premises.
3.6 Parking. Tenant shall have eight (8) non-exclusive parking spaces and
eight (8) dedicated parking spaces (on the ground floor) in the parking
lots associated with the Building, for use by Tenant, during the Terms
of this Lease. Tenant acknowledges however that after 7:00 p.m. each
night until 6:00 p.m. the following morning, upon entry to the parking
facility Tenant will be required to pay for parking at the posted rates
and shall not have exclusive or dedicated use of any spaces within the
facility.
ARTICLE 4 - UTILITIES AND SERVICE
Subject to reasonable Building rules and regulations, Landlord shall make
available for Tenant's use electricity, water and elevator service on a
twenty-four (24) hour basis, seven (7) days per week. Landlord shall provide or
cause to be provided the mains, conduits and other facilities necessary to
supply water, electricity, telephone service (specifically T-1 lines) and sewage
service to the Leased Premises. Tenant shall maintain plumbing and electrical
lighting fixtures in the Leased Premises. Landlord shall provide routine
maintenance, painting, plumbing and electric lighting service for all Common
Areas and special service areas of the Property in the manner and to the extent
deemed by the Landlord to be standard. Landlord may, in its sole discretion,
provide additional services not enumerated herein. Landlord shall not be liable
for any interruption whatsoever in utility services furnished by it which are
due to Acts of God or Force Majeure. Moreover, Landlord shall not be liable for
any interruption of such utility services which continues during any reasonable
period necessary to restore such
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service upon the occurrence of any of the foregoing conditions. Failure by
Landlord to any extent to provide any services of Landlord specified herein or
any other services not specified, or any cessation thereof, shall not render
Landlord liable in any respect for damages to either person or property (other
than if caused by the gross negligence or willful misconduct of Landlord, its
agents or employees), be construed as an eviction of Tenant, work an abatement
of rent or relieve Tenant from fulfillment of any covenant in this Lease. If any
of the equipment or machinery necessary or useful for provision of any utility
services, and for which Landlord is responsible, breaks down, or for any cause
ceases to function properly, Landlord shall use reasonable diligence to repair
the same promptly, but Tenant shall have no claim for rebate of rent or damages
on account of any interruption in service occasioned from the repairs.
Tenant shall provide janitorial service to the Premises at its own expense.
The air conditioning and heating service to be provided by Landlord pursuant to
the provisions of this Lease shall be adequate to maintain temperatures and
humidity in the Premises at levels reasonably acceptable to Landlord and Tenant,
and Landlord shall be responsible for any and all repairs, replacements, and/or
modifications required to assure such service.
Notwithstanding anything to the contrary stated hereinabove, Tenant shall be
responsible for payment of all expenses related to the use of utilities to the
Leased Premises, including, but not limited to, deposits, installation and
start-up fees and monthly invoices for electrical power and water utilized in
the Leased Premises. Landlord may, at its option, separately meter the Leased
Premises.
ARTICLE 5 - REPAIRS AND MAINTENANCE
Landlord shall not be required to make any improvements, replacements or repairs
of any kind or character to the Leased Premises during the term of this Lease
except as are set forth in this Article. Landlord shall maintain only the roof,
foundation, parking and Common Areas, including, without limitation, elevators
and bathroom areas, and the structural soundness of the exterior walls. Landlord
shall not be liable to Tenant, except as expressly provided in this Lease, for
any damage or inconvenience, and Tenant shall not be entitled to any damages nor
to any abatement or reduction of rent by reason of any repairs, alterations or
additions made by Landlord under this Lease (other than if caused by the gross
negligence or willful misconduct of Landlord, its agents or employees). At the
termination of this Lease, by lapse of time or otherwise, Tenant shall deliver
the Leased Premises to Landlord in as good condition as existed at the
Commencement Date of this Lease, ordinary wear and tear excepted. The cost and
expense of any repairs necessary to restore the condition of the Leased Premises
shall be borne by Tenant. Landlord shall exercise diligence to avoid disruptions
to Tenant's business.
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ARTICLE 6 - ALTERATIONS AND IMPROVEMENTS
6.1 Construction. If any construction of tenant improvements is necessary
for the initial occupancy of the Leased Premises, such construction
shall be accomplished and the cost of such construction shall be borne
by Tenant. Tenant shall be responsible for all work and will select its
own architect and contractor for the work. Upon the request of
Landlord, Tenant shall deliver to Landlord a completed acceptance of
premises memorandum in Landlord's prescribed form as set forth in
Exhibit F. See Exhibit "C".
6.2 Tenant Improvements. Tenant shall not make or allow to be made any
alterations, physical additions or improvements in or to the Leased
Premises without first obtaining the written consent of Landlord.
Tenant shall furnish complete plans and specifications for any proposed
alteration, addition or improvement for review and approval by
Landlord. Any alterations, physical additions or improvements to the
Leased Premises made by or installed by either party hereto shall
remain upon and be surrendered with the Leased Premises and become the
property of Landlord upon the expiration or earlier termination of this
Lease without credit to Tenant, except equipment utilized by the Tenant
in its provision of banking services, specifically vault or any portion
thereof and safe deposits boxes.; provided, however, Landlord, at its
option, may require Tenant to repair any portion of the Leased Premises
damaged by the removal of said equipment, and to leave the Leased
Premises in a broom-clean condition. This clause shall not apply to
moveable equipment, furniture or moveable trade fixtures owned by
Tenant, which may be removed by Tenant at the end of the term of this
Lease if Tenant is not then in default and if such equipment and
furniture are not then subject to any other rights, liens and interests
of Landlord. Tenant shall have no authority or power, express or
implied, to create or cause any mechanic's or materialmen's lien,
charge or encumbrance of any kind against the Leased Premises, the
Property or any portion thereof and the interest of the Landlord shall
not be subject to liens for improvements made by the Tenant. Tenant
shall promptly cause any such liens that have arisen by reason or any
work claimed to have been undertaken by or through Tenant to be
released by payment, bonding or otherwise within thirty (30) days after
request by Landlord, and shall indemnify Landlord against losses
arising out of any such claim (including, without limitation, legal
fees and court costs).
6.3 Common and Service Areas. Landlord may close any part of the Common
Area to make repairs or alterations but shall maintain reasonable
access to the Leased Premises.
ARTICLE 7 - CASUALTY AND INSURANCE
7.1 Destruction. Tenant shall give Landlord immediate notice of any change
or destruction to the Leased Premises by fire or other casualty.
Following such damage or
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destruction to the Leased Premises, if the Leased Premises in whole are
untenantable in Landlord's reasonable discretion, and the damage or
destruction was not caused or contributed to by act or negligence of
Tenant, its agents, employees, invitees or those for whom Tenant is
responsible, Tenant shall have the option to terminate this Lease.
Otherwise, at Landlord's sole option, either (I) this Lease shall
terminate, and, in such case, the rent shall be abated for the
unexpired portion of the Lease, effective as of the date of the written
notification, if the damage to the Leased Premises is material and the
Leased Premises is substantially untenantable, or (ii) this Lease shall
not terminate, and Landlord shall proceed with reasonable diligence to
rebuild or repair the Building or other improvements to substantially
the same condition in which they existed prior to the damage. Landlord
agrees to provide Tenant written notice of its decision within 15 days
of Tenant's notice. If the Leased Premises are to be rebuilt or
repaired and are untenantable in whole or in part following the damage,
and the damage or destruction was not caused or contributed to by act
or negligence of Tenant, its agents, employees, invitees or those for
whom Tenant is responsible, the Base Rent payable under this Lease
during the period for which the Leased Premises are untenantable shall
be reduced to an amount determined by multiplying the Base Rent that
would otherwise by payable but for this provision by the ratio that the
portion of the Leased Premises not rendered untenantable bears to the
total net rentable area of the Leased Premises prior to the casualty,
until such time as the whole of the Leased Premises is restored, at
which time the Tenant's obligation to pay full rent shall resume.
Landlord's obligation to rebuild or restore under this Section shall be
limited to restoring the Leased Premises to substantially the condition
in which the same existed prior to the casualty, exclusive of
improvements for which Tenant is responsible under the terms of the
Leasehold Improvements Agreement, if any, described above in Section
6.1, and Tenant shall, promptly, after the completion of such work by
Landlord, proceed with reasonable diligence and at Tenant's sole cost
and expense to restore those improvements for which Tenant is
responsible under the terms of such Leasehold Improvements Agreement to
substantially the condition in which the same existed prior to the
casualty and to otherwise make the Leased Premises suitable for
Tenant's use. If Landlord fails to substantially complete the necessary
repairs or rebuilding within one hundred twenty (120) working days from
the date of Landlord's receipt of written notification by Tenant of the
destruction, Tenant may at its option, terminate this Lease by
delivering written notice of termination to Landlord, whereupon all
rights and obligations under this Lease shall cease to exist. For
purposes of this Lease, a "working" day means every week day, except
for holidays recognized as such by Landlord.
7.2 Property Insurance. Landlord shall insure loss or damage to the
Property and, at Tenant's request, shall provide to Tenant a
certificate of such insurance coverage. Tenant shall have no right in
or claim to the proceeds of any policy of insurance maintained by
Landlord. Landlord shall not be obligated in any way or manner to
insure any personal property (including, but not limited to, any
furniture, machinery,
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goods or supplies) of Tenant upon or within the Leased Premises, any
fixtures installed or paid for by Tenant upon or within the Leased
Premises, or any improvements which Tenant may construct on the Leased
Premises. Tenant at all times during the term of this Lease shall, at
its own expense, keep in full force and effect insurance against fire
and such other risks as are from time to time included in standard
all-risk insurance (including coverage against vandalism and malicious
mischief) for the full insurable value of Tenant's trade fixtures,
furniture, supplies and all items of personal property of Tenant
located on or within the Leased Premises. If an increase in any
insurance premiums paid by Landlord for the Property is caused by
Tenant's use of the Leased Premises in a manner other than as set forth
in Section 1.8, or if Tenant vacates the Leased Premises and causes an
increase in such premiums (and said vacating is deemed a default
hereunder), Tenant shall pay to Landlord within ten (10) days after
receipt of Landlord's invoice therefor, the amount of such increase,
which shall be additional rent hereunder.
7.3 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each
other of and from any and all right of recovery, claim, action or cause
of action, against each other, their agents, officers and employees,
for any loss or damage that may occur to the Leased Premises,
improvements to the Property, or personal property within the Property,
by reason of fire or the elements, regardless of cause or origin,
including negligence of Landlord or Tenant and their agents, officers
and employees, but only to the extent that such loss or damage is
actually covered by insurance and only to the extent that the insured
party has received insurance proceeds therefor. Landlord and Tenant
agree immediately to give their respective insurance companies which
have issued policies of insurance covering all risk of direct physical
loss, written notice of the terms of the mutual waivers contained in
this Section, and to have the insurance policies properly endorsed, if
necessary, to prevent the invalidation of the insurance coverages by
reason of the mutual waivers.
7.4 Hold Harmless. Landlord shall not be liable to Tenant or to Tenant's
customers, employees, agents, guests or invitees, or to any other
person whomsoever, for any injury to person or damage to property on or
about the Leased Premises or the Common Area, other than injury or
damage resulting from the gross negligence or willful misconduct or
Landlord or its agents and employees, including but not limited to,
consequential damage, (1) caused by any act or omission of Tenant, its
employees, subtenants, licensees and concessionaires or of any other
person entering the Property or the Leased Premises by express or
implied invitation of Tenant, or (2) arising out of the use of the
Leased Premises or the Property by Tenant, its employees, subtenants,
licensees, concessionaires or invitees, or (3) arising out of any
breach or default by Tenant in the performance of its obligations
hereunder, or (4) caused by the improvements located in the Leased
Premises becoming out of repair or by defect in or
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failure of equipment, pipes, or wiring, or by broken glass, or by the
backing up of drains, or by gas, water, steam, electricity or oil
leaking, escaping or flowing into the Leased Premises or Property, or
(5) arising out of the failure or cessation of any service provided by
Landlord (including security service and devices), and Tenant hereby
agrees to hold Landlord harmless from any liability, loss, expense or
claim (including, but not limited to reasonable attorneys' fees)
arising out of such damage or injury. Landlord shall not be liable to
Tenant for any loss or damage that may be occasioned by or through the
acts or omissions of other tenants of the Property or of any other
persons whomsoever, excepting only duly authorized employees and agents
of Landlord acting within the scope of their authority. Further, Tenant
specifically agrees to be responsible for and hold Landlord harmless
from any and all damages or expenses of whatever kind arising out of or
caused by a burglary, theft, vandalism, malicious mischief or other
illegal acts performed in, at or from the Leased Premises.
7.5 Liability Insurance. Tenant shall at its expense obtain and keep in
force during the term of this Lease comprehensive general liability
insurance with a combined single limit of not less than $1,000,000 per
occurrence for bodily injury and property damage, insuring both
Landlord and Tenant against liability arising out of Tenant's use or
occupancy of the Leased Premises, including without limitation the
Common Areas and any other areas appurtenant thereto. Such insurance
shall contain endorsements for the following coverages: (a) contractual
liability insurance relating to all obligations of Tenant pursuant to
this Lease, including its indemnification of Landlord; and (b) employee
liability.
7.6 Insurance Requirements. All insurance policies or duly executed
certificates for the same required to be carried by Tenant under this
Lease, together with satisfactory evidence of the payment of the
premium thereof, shall be deposited with Landlord on the date Tenant
first occupies the Leased premises and upon renewals of such policies
not less than fifteen (15) days prior to the expiration of the term of
such coverage. All insurance required to be carried by Tenant under
this Lease shall be in form and content, and written by insurers
acceptable to Landlord, in its sole discretion. All policies shall
provide that they may not be terminated without thirty (30) days' prior
written notice to Landlord. If Tenant shall fail to comply with any of
the requirements contained relating to insurance, Landlord may obtain
such insurance and Tenant shall pay to Landlord, on demand as
additional rent hereunder, the premium cost thereof.
7.7 Hazardous Material. Throughout the term of this Lease, Tenant shall not
cause the presence, use, generation, release, discharge, storage,
disposal, or transportation of any Hazardous Materials (as hereinafter
defined) on, under, in, above, to, or from the Leased Premises other
than in strict compliance with all applicable federal, state, and local
laws, rules, regulations, and orders. For purposes of this provision,
the term "Hazardous Materials" shall mean and refer to any wastes,
materials, or other
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substances of any kind or character that are or become regulated as
hazardous or toxic waste or substances, or which require special
handling or treatment, under any applicable local, state, or federal
law, rule, regulation, or order. Tenant shall indemnify, defend, and
hold harmless from and against (a) any loss, cost, expense, claim, or
liability arising out of any investigation, monitoring, clean-up,
containment, removal, storage, or restoration work of the Leased
Premises (herein referred to as "Remedial Work") required by, or
incurred by Landlord or any other person or party in a reasonable
belief that such Remedial Work is required by any applicable federal,
state or local law, rule, regulation or order, or by an governmental
agency, authority, political subdivision having jurisdiction over the
Leased Premises, and (b) any claims of third parties for loss, injury,
expense, or damage arising out of the presence, release, or discharge
of any Hazardous Materials on, under, in, above, to, or from the Leased
Premises and which arise out of the activities of the Tenant. In the
event any Remedial Work is so required under any applicable federal,
state, or local law, rule, regulation or order, Tenant shall promptly
perform or cause to be performed such Remedial Work in compliance with
such law, rule, regulation, or order. In the event Tenant shall fail to
commence the Remedial Work in a timely fashion, or shall fail to
prosecute diligently the Remedial Work to completion, such failure
shall constitute an event of default on the part of Tenant under the
terms of this Lease, and Landlord, in addition to any other rights or
remedies afforded it hereunder, may, but shall not be obligated to,
cause the Remedial Work to be performed, and Tenant shall promptly
reimburse Landlord for the cost and expense thereof upon demand.
ARTICLE 8 - CONDEMNATION
If all or a portion of the Leased Premises shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu
thereof, and the Leased Premises in whole is rendered untenantable in
the Landlord's reasonable discretion, Tenant, at its option may
terminate this Lease. Otherwise, this Lease shall at the option of
Landlord, either (I) terminate and the rent shall be abated during the
unexpired portion of this Lease effective on the date physical
possession is taken by the condemnation authority, if the damage to the
Leased Premises is material and the Leased Premises is substantially
untenantable, or (ii) this Lease shall not terminate and Landlord shall
restore and reconstruct, to the extent of condemnation proceeds
(excluding any proceeds for land) actually received after the exercise
by any mortgagee of the Property of an option to apply such proceeds
against Landlord's debt to such mortgagee, the Property and other
improvements on the Leased Premises to the extent necessary to make it
reasonably tenantable. The Base Rent payable under this Lease during
the unexpired portion of the term shall be reduced to an amount
determined by multiplying the Base Rent that would otherwise be payable
for this provision by the ratio that the portion of the Leased Premises
not
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rendered untenantable bears to the total net rentable area of the
Leased Premises prior to the casualty, until such time as the whole of
the Leased Premises is restored, at which time the Tenant's obligation
to pay full rent shall resume. If Landlord fails to substantially
complete such restoration and reconstruction within one hundred and
twenty (120) working days of the date of physical possession by the
condemning authority, Tenant may at its option terminate this lease by
delivering written notice of termination to Landlord, whereupon all
rights and obligations of this Lease shall cease to exist. All
compensation awarded for any taking (or the proceeds of private sale in
lieu thereof), whether for the whole or a part of the Leased Premises,
shall be the property of Landlord (whether such award is compensation
for damaged to Landlord's or Tenant's interest in the Leased Premises),
and Tenant hereby assigns all of its interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any
award made to Tenant for loss of business or for taking of Tenant's
fixtures and other property within the Leased Premises if a separate
award for such items is made to Tenant.
ARTICLE 9 - ASSIGNMENT OR SUBLEASE
9.1 Assignment by Tenant, Landlord. Tenant shall not assign, in whole or in
part, this Lease, or allow it to be assigned, in whole or in part, by
operation of law or otherwise or mortgage or pledge the same, or sublet
the Leased Premises, in whole or in part, without the prior written
consent of Landlord, which consent may not unreasonably withheld, and
in no event shall any such assignment or sublease ever release Tenant
or any Guarantor from any obligation or liability hereunder. No
assignee or sublessee of the Leased Premises or any portion thereof may
assign or sublet the Leased Premises or any portion thereof.
Notwithstanding the foregoing, Tenant may, without Landlord's approval,
assign or sublet the Lease Premises or any part thereof, to any
successor of Tenant resulting from a merger, consolidation, sale or
acquisition of Tenant. Landlord shall have the right to sell, transfer
or assign, in whole or in part, its rights and obligations under this
Lease and in the Property. Any such sale, transfer or assignment shall
operate to release Landlord from any and all liabilities under this
Lease arising after the date of such sale, assignment or transfer.
9.2 Rights of Mortgagee, Estoppel Letters. Tenant accepts this Lease
subject and subordinate to any recorded lease, mortgage or deed of
trust lien presently existing, if any, or hereafter encumbering the
Property and to all existing ordinances and recorded restrictions,
covenants, easements, and agreements with respect to the Property.
Landlord hereby is irrevocably vested with full power and authority to
subordinate Tenant's interest under this Lease to any mortgage or deed
of trust lien hereafter placed on the Property. Upon any foreclosure of
any such mortgage, or the sale or conveyance of the Property in lieu of
foreclosure, or any other transfer of Landlord's interest in the
Property, whether or not in connection with a mortgage, Tenant hereby
does, and hereafter agrees to attorn to the purchaser at such
foreclosure sale or to the grantee under any deed in lieu of
foreclosure or to any other transferee of Landlord's interest, and
shall recognize the purchaser, grantee, or other transferee as Landlord
under this Lease, and no further attornment or other agreement
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shall be required to effect or evidence Tenant's attornment to and
recognition of such purchaser or grantee as Landlord hereunder. Such
agreement of Tenant to attorn shall survive any such foreclosure sale,
trustee's sale, conveyance in lieu thereof, or any other transfer of
Landlord's interest in the Property. Tenant, upon written request, at
any time, before or after any such foreclosure sale, trustee's sale,
conveyance in lieu thereof, or other transfer shall execute,
acknowledge, and deliver to prospective transferee or mortgagee a Lease
Subordination, Non-Disturbance and Attornment Agreement and any
additional written instruments and certificates evidencing such
attornment as mortgagee or other prospective transferee may reasonably
require. Tenant hereby irrevocably appoints Landlord as Tenant's agent
and attorney-in-fact for the purpose of executing, acknowledging, and
delivering any such instruments and certificates. Notwithstanding
anything to the contrary implied in this Section, any mortgagee under
any mortgage shall have the right at any time to subordinate any such
mortgage to this Lease on such terms and subject to such conditions as
mortgagee in its discretion may consider appropriate. Tenant agrees to
furnish, from time to time, within twenty (20) days after receipt of a
written request from Landlord or Landlord's mortgagee, (a) a statement
certifying, if applicable, all or some of the following: Tenant is in
possession of Leased Premises; this Lease is in full force and effect;
this Lease is unmodified (except as disclosed in such statement);
Tenant claims no present charge, lien, or claim of offset against rent;
the rent is paid for the current month, but is not prepaid for more
than one (1) month and will not be prepaid for more than one (1) month
in advance; there is no existing default by reason of some act or
omission by Landlord; Landlord has performed all inducements required
of Landlord in connection with this Lease, including construction
obligations, and Tenant accepts the Leased Premises as constructed; and
(b) the following items: an acknowledgment of the assignment of rentals
and other sums due hereunder to the mortgagee and agreement to be bound
thereby; an agreement requiring Tenant to advise the mortgagee of
damage to or destruction of the Leased Premises by fire or other
casualty requiring reconstruction; an agreement by Tenant to give the
mortgagee written notice of Landlord's default hereunder and to permit
the mortgagee to cure such default within a reasonable time after such
notice before exercising any remedy Tenant might possess as result of
such default; and such other matters as may be reasonably required by
Landlord or Landlord's mortgagee. Tenant's failure to deliver such
statement, in addition to being a default under this Lease shall be
deemed to establish conclusively that this Lease is in full force and
effect except as declared by Landlord, that Landlord is not in default
of any of its obligations under this Lease, and that Landlord has not
received more than one (1) month's rent in advance.
ARTICLE 10 - LANDLORD'S LIEN
Intentionally left blank
ARTICLE 11 - DEFAULT AND REMEDIES
11.1 Default by Tenant. The following shall be deemed to be events of
default by Tenant under this Lease: (a) Tenant shall fail to pay when
due any installment of rent or any other
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payment required pursuant to this Lease and fails to cure after fifteen
(15) business days written notice; (b) Tenant shall abandon any
substantial portion of the Leased Premises for more than thirty (30)
business days; (c) Tenant or any guarantor of Tenant's obligations
hereunder shall file a petition or be adjudged bankrupt or insolvent
under any applicable federal or state bankruptcy or insolvency law or
admit that it cannot meet its financial obligations as they become due,
or a receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligations
hereunder; (d) Tenant or any guarantor of Tenant's obligations
hereunder shall make a transfer in fraud of creditors or shall make an
assignment for the benefit of creditors; (e) Tenant shall do or permit
to be done any act which results in a lien being filed against the
Leased Premises or the property and the lien is not satisfied within
fifteen (15) days of filing; (f) the liquidation, termination,
dissolution or (if the Tenant is a natural person) the death of Tenant
or any guarantor of Tenant's obligations hereunder; or (g) Tenant shall
be in default of any other term, provision or covenant of this Lease,
and, other than specified in clause (a) above, such default is not
cured within thirty (30) days after written notice thereof to Tenant.
Said cure period shall however be extended so long as the Tenant is
diligently pursuing cure of the default and the default is of nature
that it cannot be cured within the thirty (30) day time period.
11.2 Remedies for Tenant's Default. Upon the occurrence of any event of
default set forth in this Lease, Landlord shall, in addition to any
other rights or remedies available to Landlord under this Lease and
under the laws of the State of Florida, have the option to pursue any
one or more of the remedies set forth in this Section without any
additional notice or demand:
(1) The Landlord may elect to declare the amount equal to 12
months of Base Rent or any part thereof, due and payable
immediately.
(2) Landlord may elect, at any time subsequent to such default, by
written notice to the Tenant, to terminate this Lease on the
date specified in such notice of termination, and Tenant shall
quit and surrender the Leased 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.
Further, upon such default, whether or not Landlord shall
elect to terminate this Lease, Landlord shall have the
immediate right to re-enter the Leased Premises and may remove
all persons and property from the Leased 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, and
Landlord shall not be deemed guilty of trespass, or become
liable for any loss or damage which may be occasioned thereby.
(3) Landlord may retake possession of the Leased Premises for the
account of Tenant and may re-enter the Leased Premises, by
summary proceedings or otherwise, and attempt to re-let the
Leased Premises, or any part thereof, as Tenant's agent, in
the name of Landlord, or otherwise to any tenant and upon such
terms and conditions
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and for any use or purpose and for a term shorter or longer
than the balance of the term of this Lease, all as Landlord
may deem appropriate. 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 re-let
the Leased Premises or any part thereof. Upon each such
re-letting, all rentals received by Landlord from such
re-letting 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 re-letting including brokerage fees and to costs of such
alterations 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 re-letting 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, but to the extent
permitted by law, Tenant shall not be entitled to any
surpluses from such re-letting. Landlord shall recover from
Tenant all damages it may incur by reason of Tenant's default,
including the cost of recovering the Leased 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.
Landlord shall have no such obligation to re-let the Leased
Premises, and its failure or refusal to do so, or failure to
collect rent on re-letting, shall not affect Tenant's
liability hereunder. In computing the net amount of rents
collected through such re-letting, Landlord may deduct all
expenses incurred in obtaining possession of and re-letting
the Leased Premises, including legal expenses, attorneys' fees
through the appellate level, brokerage fees, the cost of
restoring the Leased Premises to good order, and the cost of
all alterations and decorations deemed necessary by Landlord
to effect re-letting.
(4) Landlord may retake possession of the Premises, or any part
thereof, on its own behalf, without thereby relieving Tenant
from any liability for damages accruing prior to such
retaking. Or, Landlord may elect not to seek to re-enter any
portion of the Leased Premises, without waiving its right to
do so at any future time or its right to collect the rent due
hereunder as and when the same shall become due and to
continue to hold Tenant fully liable for all if its
obligations hereunder.
(5) Landlord may treat the default as an anticipatory breach of
this Lease and, in addition to retaking possession, may bring
an action immediately for all damages resulting therefrom.
(6) In the event of a breach or threatened breach of any of the
covenants or provisions hereof, Landlord shall have the
further right to seek an injunction.
(7) Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit
or suits in equity or at law for specific performance of any
covenant or agreement contained herein, or for the enforcement
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of any other legal or equitable remedy, including recovery of
all monies due or to become due from Tenant under any of the
provisions of this Lease.
(8) If Landlord exercises any of the remedies provided for in
subparagraphs (1) through (6) hereinabove, Tenant shall
surrender possession and vacate the Premises immediately and
deliver possession thereof to Landlord, and Landlord may then
or at any time thereafter re-enter and take complete and
peaceful possession of the Premises, with or without process
of law, full or complete license to do so being hereby granted
by Tenant to Landlord, and Landlord may remove all occupants
and property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without
relinquishing Landlord's right to Rent or any other right
given to Landlord hereunder or by operation of law.
(9) Upon an event of default resulting from Tenant's failure to
pay Base Rent, additional rent or any other amount due
hereunder, all sums past due shall bear interest at the
highest legal rate of interest permitted under the laws of the
State of Florida. Neither the accrual nor the payment of such
interest shall be deemed to excuse or cure any breach, default
or event of default hereunder. In the event that any interest
paid or charged hereunder shall exceed the maximum legal rate
then applicable then such rate so charged by Landlord shall be
automatically reduced to the current maximum legal rate of
interest, and Landlord shall promptly refund to Tenant the
excess amount of interest paid over such maximum legal rate of
interest.
(10) The rights, privileges, elections and remedies of Landlord
under this Lease shall be cumulative, and Landlord shall have
the right to exercise such remedies at any time and from time
to time singularly or in combination. No termination of this
Lease (whether upon an event of default or otherwise) shall be
deemed to limit or negate Landlord's rights hereunder to
indemnification from Tenant (or Tenant's insurance carriers)
for any claim or liability asserted against or imposed upon
Landlord, whether before or after the termination of this
Lease, which is directly or indirectly based upon death,
personal injury, property damage or other matters occurring
prior to the termination hereof.
(11) The pursuit by Landlord of any particular remedy, whether
specified herein or otherwise, shall, to the extent permitted
by law, not preclude Landlord from pursuing any other remedy
or remedies available to it at law in equity, all of which
shall be deemed to be cumulative. If Landlord's re-entry is
the result of Tenant's bankruptcy, insolvency, or
reorganization, Landlord shall recover as liquidated damages,
in addition to accrued rent and other charges, the full rental
for the maximum period allowed by any act relating to
bankruptcy, insolvency or reorganization. If Tenant abandons
or vacates the Premises, or if Landlord re-enters the Premises
pursuant to court order, any property left in the Premises by
Tenant shall be deemed to have been abandoned by Tenant, and
Landlord shall have the right to retain or dispose of such
property in any manner without any obligation
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to account therefor to Tenant. Tenant, for itself and for all
persons claiming through or under it, hereby waives any and
all rights which are or may be conferred upon Tenant by any
present or future law to redeem the Leased Premises after a
warrant to dispossess shall have been issued or after judgment
in an action for ejectment shall have been made and entered.
The parties hereby waive trial by jury in an 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. 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 the State of
Florida and shall be interpreted, and the rights and
liabilities of the parties herein determined, in accordance
with the laws of the State of Florida.
(12) Notwithstanding the foregoing, Landlord's right to retake the
possession of the Leased Premises shall be qualified to permit
the Tenant at all times to enter the Leased Premises in order
to obtain funds or monies, certificates of deposit, stock
certificates and other documentation in the bank vault, safe
deposit boxes and other secured locations within the Leased
Premises.
Notwithstanding any other remedy set forth in this Lease, if Landlord has made
rent concessions of any type or character, or waived any Base Rent, and Tenant
fails to take possession of the Leased Premises on the Commencement Date or
otherwise defaults at any time during the term of this Lease, the rent
concessions, including any waived base rent, shall be canceled and the amount of
the base rent or other rent concessions shall be due and payable immediately as
if no rent concessions or waiver of any base rent had ever been granted. A rent
concession or waiver of the Base Rent shall not relieve Tenant of any obligation
to pay any other charge due and payable under this Lease, including, without
limitation, any sum due under Section 2.3 of this Lease. Notwithstanding
anything contained in this Lease to the contrary, this Lease may be terminated
by Landlord only by written notice of such termination to Tenant given in
accordance with Section 12.7 below, and no other act or omission of Landlord
shall be construed as a termination of this Lease.
11.3 Default by Landlord. If Landlord defaults in the performance of any
term, covenant or condition required to be performed by Landlord under
this Lease, Landlord shall have thirty (30) days following the receipt
of written notice from Tenant specifying such default to cure such
default, provided that if Landlord has commenced actions to cure such
default within said thirty (30) day period, Landlord shall have all
reasonable and necessary time to complete such cure.
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11.4 Remedies for Landlord's Default. Upon the occurrence of any default set
forth in this Lease and subsequent failure by Landlord to cure or
commence actions to cure as provided in Section 11.3, Tenant shall, as
Tenant's sole remedies, have the right to maintain an action against
Landlord for specific performance or injunctive relief, or to cure said
default at its expense and obtain reimbursement for expense related to
such cure from the Landlord.
11.5 Intentionally Left Blank.
ARTICLE 12 - DEFINITIONS AND MISCELLANEOUS MATTERS
12.1 Abandon. "Abandon" means the vacating of all or a substantial portion
of the Leased Premises by Tenant, whether or not Tenant is in default
of the rental or other payments due under this Lease.
12.2 Act of God or Force Majeure. An "Act of God" or "Force Majeure" is
defined for purposes of this Lease as strikes, lockouts, sitdowns,
material or labor restrictions by any governmental authority, unusual
transportation delays, riots, floods, washouts, explosions,
earthquakes, fire storms, weather (including wet grounds or inclement
weather which prevents construction), acts of the public enemy, wars,
insurrections, and/or any other cause not reasonably within the control
of Landlord or which by the exercise of due diligence Landlord is
unable wholly or in part, to prevent or overcome. Landlord shall not be
required to perform any covenant or obligation in this Lease, or be
liable in damages to Tenant, so long as the performance or
non-performance of the covenant or obligation is delayed or prevented
by an "Act of God", "Force Majeure" or by Tenant. Tenant shall not be
required to perform any covenant or obligation in this Lease, or be
liable to Landlord, so long as the performance or non-performance of
the covenant or obligation is delayed or prevented by an "Act of God"
or "Force Majeure," no longer than three (3) days.
12.3 Waiver. Failure of Landlord to declare an event of default immediately
upon its occurrence, or delay in taking any action in connection with
an event of default, shall not constitute a waiver of the default, but
Landlord shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit
of any one or more of the remedies set forth in Article 11 above shall
not preclude pursuit of any one or more of the other remedies provided
elsewhere in this Lease or provided by law, nor shall pursuit of any
remedy hereunder or at law constitute forfeiture or waiver of any rent
or damages accruing to Landlord by reason of the violation of any of
the terms, provisions or covenants of this Lease. Failure by Landlord
to enforce one or more of the remedies provided hereunder or at law
upon any event of default shall not be deemed or construed to
constitute a waiver of the default or of any other violation or breach
of any of the terms, provisions and covenants contained in this Lease.
Landlord may collect and receive rent due from tenant without waiving
or affecting any rights or remedies that Landlord may have at law or in
equity or by virtue of this Lease at the time of such
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payment. Institution of any action to re-enter the Leased Premises
shall not be construed to be an election by Landlord to terminate this
Lease.
12.4 Attorneys' Fees. If a party hereto defaults in the performance of any
of the terms, covenants, agreements or conditions contained in this
Lease and places in the hands of an attorney the enforcement of all or
any part of this Lease, the collection of any rent or other sums due or
to become due or recovery of the possession of the Leased Premises, the
prevailing party agrees to pay the other party's costs of collection,
including reasonable attorneys' fees, whether suit is actually filed or
not.
12.5 Successors. This Lease shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns.
12.6 Interpretations: Severability. The captions appearing in this Lease are
for convenience only and in no way define, limit, construe or describe
the scope or intent of any Section. Grammatical changes required to
make the provisions of this Lease apply (a) in the plural sense where
there is more than one tenant and (b) to either corporations,
associations, partnerships or individuals, males or females, shall in
all instances be assumed as though in each case fully expressed. The
Laws of the State of Florida shall govern the validity, performance and
enforcement of this Lease. This Lease shall not be construed more or
less favorably with respect to either party as a consequence of the
Lease or various provisions hereof having been drafted by one of the
parties hereto. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Lease and the
application of such provisions to other persons or circumstances shall
not be affected thereby and shall be enforced to the greatest extent
permitted by law. Each covenant and agreement contained in this Lease
shall be construed to be a separate and independent covenant and
agreement, and the breach of any such covenant or agreement by Landlord
shall not discharge or relieve Tenant from Tenant's obligation to
perform each and every covenant and agreement of this Lease to be
performed by Tenant.
12.7 Notices. All rent and other payments required to be made by Tenant
shall be payable to Landlord at the following address: Two South Orange
Street, LLC, Two South Orange Avenue, Suite #201, Orlando, Florida
32801. All payments required to be made by Landlord to Tenant shall be
payable to Tenant at Tenant's address set forth in Section 1.7. Any
notice or document (other than rent) required or permitted to be
delivered by the terms of this Lease shall be deemed to be delivered
(whether or not actually received) when deposited in the United States
Mail, postage prepaid, certified mail, return receipt requested, with a
commercial overnight courier, or by facsimile (with confirmation), and
addressed to the parties at the respective addresses set forth in
Section 1.7 (or, in the case of Tenant, at the Leased Premises).
12.8 Multiple Tenants. If this Lease is executed by more than one person or
entity as "Tenant", each such person or entity shall be jointly and
severally liable hereunder. It is expressly understood that any one of
the named Tenants shall be empowered to execute any
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modification, amendment, exhibit, floor plan, or other document herein
referred to and bind all of the named Tenants thereto; and Landlord
shall be entitle to rely on same to the extent as if all of the named
Tenants had executed same.
12.9 Landlord's Liability. If Landlord shall be in default under this Lease
and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of
the right, title, and interest of Landlord in the Property as the same
may then be encumbered and neither Landlord nor any person or entity
comprising Landlord shall be liable for any deficiency. In no event
shall Tenant have the right to levy execution against any property of
Landlord nor any person or entity comprising Landlord other than its
interest in the Property as herein expressly provided.
12.10 Time is of the Essence. The time of the performance of all of the
covenants, conditions and agreements of this Lease is of the essence.
12.11 Entire Agreement. It is expressly agreed by Tenant, as a material
consideration for the execution of this Lease, that this Lease, with
the specific references to extrinsic documents, is the entire agreement
of the parties, that there are, and were, no verbal representations,
warranties, understandings, stipulations, agreement or promises
pertaining to the subject matter of this Lease or of any expressly
mentioned extrinsic documents that are not incorporated in writing in
this Lease or in such documents. This Lease may executed in
counterparts.
12.12 Amendment. This Lease may not be altered, waived, amended or extended
except by an instrument in writing signed by Landlord and Tenant.
12.13 Limitation of Warranties. Landlord and Tenant expressly agree that
there are and shall be no implied warranties of merchantability,
habitability, suitability, fitness for a particular purpose of or of
any other kind arising out of this Lease, and there are no warranties
which extend beyond those expressly set forth in this Lease. Without
limiting the generality of the foregoing, Tenant expressly acknowledges
that Landlord has made no warranties or representations concerning any
hazardous substances or other environmental matters affecting any part
of the Property, and Landlord hereby expressly disclaims and Tenant
waives any express or implied warranties with respect to any such
matters.
12.14 Waiver and Releases. Tenant shall not have the right to withhold or to
offset rent or to terminate this Lease except as expressly provided
herein. Tenant waives and releases any and all statutory liens and
offset rights.
12.15 Radon Gas Disclosure. RADON GAS: 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 the
Orange County, Florida, public health unit.
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12.16 Exhibits. The Exhibits attached hereto are incorporated herein by
reference. Tenant acknowledges that the terms of the agreements set
forth in the exhibits are acceptable to Tenant.
12.17 Real Estate Broker. Except for Carter & Associates - ONCOR, Tenant and
Landlord represent and warrant that neither they nor any of their
representatives, employees, or agents have dealt with or consulted any
other real estate broker in connection with this Lease. Without
limiting the effect of the foregoing, the Tenant and Landlord agree to
indemnify and hold the other harmless against any claim or demand made
by any other real estate broker or agents claiming to have dealt or
consulted with them or any of their representatives, employees or
agents contrary to the foregoing representations and warranty. Tenant
agrees that at the execution hereof it shall pay over to Carter &
Associates - ONCOR a commission in the amount of $50,000.00.
(Signatures on next page)
EXECUTED effective as of the first day written herein.
LANDLORD
WITNESSES: TWO SOUTH ORANGE STREET, LLC
/s/ Tom Cook By: /s/ Cameron B. Kuhn
--------------------------------- --------------------------------
Print Name: Tom Cook Name: Cameron B. Kuhn
---------------------- Its: Manager
/s/ D. Paul Dietrich
---------------------------------
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Print Name: D. Paul Dietrich II
----------------------
TENANT
WITNESSES: ADMIRALTY BANK
/s/ Tom Cook By: /s/ Ward Kellogg
--------------------------------- --------------------------------
Print Name: Tom Cook Name: Ward Kellogg
----------------------- ------------------------------
Its: President and CEO
/s/ D. Paul Dietrich -------------------------------
----------------------------------
Print Name: D. Paul Dietrich II
-----------------------
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