EXHIBIT 10.2
To 8-K dated May 27,
2005
GROUND LEASE
COUSINS PROPERTIES
INCORPORATED,
a Georgia corporation,
LANDLORD
and
FIRST NATIONAL BANK &
TRUST
COMPANY OF THE TREASURE COAST,
a national banking association,
TENANT
June 30, 2005
__________________
1465190_4.DOC [Version 8
of Lease]
INDEX
GROUND LEASE
Page
Section 1.01.
Demise
Section 1.02. Appurtenant
Easements
ARTICLE II. TERM OF
LEASE
Section 2.01. Term of
Lease
Section 2.02. Options to
Extend Term
Section 2.03. Supplemental
Agreement
ARTICLE III. MINIMUM RENT AND
ADDITIONAL RENT
Section 3.01. Minimum
Rent
Section 3.02. Minimum Rent
Adjustments
Section 3.03. Intentionally
Deleted
Section 3.04. Intentionally
Deleted
Section 3.05. Intentionally
Deleted
Section 3.06. Intentionally
Deleted
Section 3.07.
Interest
Section 3.08. Shared Costs
Under Community Declaration
Section 3.09. Payments Under
Declaration Regarding Outparcels
ARTICLE IV. TAXES, ASSESSMENTS AND
CHARGES
Section 4.01. Taxes and
Assessments
Section 4.02.
Charges
Section 4.03.
General
Section 4.04. Impact
Fees
ARTICLE V. NET LEASE;
NON-TERMINATION
Section 5.01. Net
Lease
Section 5.02.
Non-Termination
ARTICLE VI. CONDITION, SUITABILITY
AND USE OF THE PREMISES
Section 6.01. Condition and
Suitability of the Premises
Section 6.02. Site Preparation
and Delivery of Site
Section 6.03. Permit
Contingency
Section 6.04. Construction of
the Improvements
Section 6.05. Use of the
Premises; No Abandonment
Section 6.06. Tenant's
Exclusive Use
Section 6.07.
Survey
ARTICLE VII. COMPLIANCE WITH LAW;
LIENS AND ENCUMBRANCES
Section 7.01. Compliance with
Laws
Section 7.02. Tenant's Agreement
Relating to Hazardous Substances
Section 7.03. Liens and
Encumbrances
ARTICLE VIII. REPAIRS AND
ALTERATIONS
Section 8.01. Maintenance and
Repair
Section 8.02.
Alterations
ARTICLE IX. DAMAGE AND
DESTRUCTION
Section 9.01.
Notice
Section 9.02.
Restoration
Section 9.03. Application of
Proceeds
ARTICLE X. INSURANCE
Section 10.01. Classes of
Insurance
Section 10.02.
Requirements
Section 10.03.
Certificates
ARTICLE XI.
INDEMNIFICATION
Section 11.01.
Indemnification
ARTICLE XII. OWNERSHIP OF
IMPROVEMENTS
Section 12.01. Title to
Improvements
Section 12.02.
Surrender
ARTICLE XIII. ASSIGNMENT AND
SUBLETTING; NON-SUBORDINATION TO LEASEHOLD MORTGAGING
Section 13.01. Assignment and
Subletting; Prior Consent
Section 13.02. Leasehold
Mortgaging
ARTICLE XIV. RIGHT TO
CONTEST
Section 14.01. Permitted
Contests
ARTICLE XV. DEFAULT
Section 15.01. Events of
Default
Section 15.02.
Remedies
Section 15.03. Reentry by
Landlord.
Section 15.04.
General.
Section 15.05. Landlord's Lien
on Personalty
ARTICLE XVI.
CONDEMNATION
Section 16.01. Total
Condemnation
Section 16.02. Partial
Condemnation
Section 16.03.
Awards
Section 16.04.
General
ARTICLE XVII. BROKERAGE
PROVISIONS
Section 17.01.
Brokers
ARTICLE XVIII.
MISCELLANEOUS
Section 18.01. No
Waiver
Section 18.02. Waiver of
Redemption
Section 18.03. Estoppel
Certificates
Section 18.04. No Merger of
Title
Section 18.05. Quiet
Enjoyment
Section 18.06. Transfer by
Landlord
Section 18.07. Limitation on
Landlord's Liability
Section 18.08. Mortgaging the
Fee
Section 18.09.
Separability
Section 18.10. Notices,
Demands and Other Instruments
Section 18.11. Successors and
Assigns
Section 18.12.
Headings
Section 18.13.
Counterparts
Section 18.14. Applicable
Law
Section 18.15. Entire
Agreement; Amendments
Section 18.16. All Genders and
Numbers Included
Section 18.17. Relationship of
the Parties
Section 18.18. Time is of
Essence
Section 18.19. Short Form
Lease
Section 18.20. Approval and
Inspection Rights
Section 18.21. Holding Over,
No Extension, Month-to-Month Tenancy and Double Rent
Section 18.22. Corporate
Authority
Section 18.23. Intentionally
Deleted
Section 18.24. Radon Gas
Section 18.25. Use of Service
Mark
Section 18.26. Earnest
Money
EXECUTION BY PARTIES
EXHIBIT "A"
- Drawing of the Site
EXHIBIT "B"
- Encumbrances on Site
EXHIBIT "C"
- Shopping Center Site
Plan
EXHIBIT "D"
- [Reserved]
EXHIBIT "E"
- Rules and Regulations
EXHIBIT "F"
- [Reserved]
EXHIBIT "G"
- Short Form Lease
EXHIBIT "H"
- Grading Plan
EXHIBIT "I"
- Exclusives
#
1465190_4.DOC [Version 8
of Lease]
GROUND LEASE
THIS GROUND LEASE (the "Lease") is made
and entered into this 30 th day of June,
2005, by and between COUSINS PROPERTIES INCORPORATED,
a Georgia corporation (hereinafter referred to as "Landlord"),
and FIRST NATIONAL BANK & TRUST COMPANY OF THE TREASURE COAST,
a national banking association (hereinafter referred to as
"Tenant").
ARTICLE I. DEMISE OF
PREMISES
Section 1.01. Demise .
For and in consideration of the rents, terms, covenants and
agreements hereinafter set forth on the part of Tenant and Landlord
to be paid, kept, observed and performed, Landlord does hereby
demise and lease to Tenant, and Tenant does hereby take and hire
from Landlord, upon and subject to the terms and conditions
contained herein, that certain tract of land lying and being in the
City of Viera, Brevard County, Florida, being approximately shown
on the drawing attached hereto as Exhibit "A" and by
reference incorporated herein (the "Site"), together with all
improvements now located thereon and all appurtenances thereunto
belonging (said Site, improvements and appurtenances
hereinafter collectively referred to as "Premises"), subject to the
encumbrances set forth on Exhibit "B" attached hereto
and by reference incorporated herein (the " Permitted
Encumbrances "). The Site is an outparcel fronting in the
shopping center commonly known as Viera Marketcenter, which is
depicted in the Site Plan (the "Shopping Center"). The term
"Site Plan" as used in this Lease shall mean the site plan
attached hereto as Exhibit "C" and by reference
incorporated herein. The term "Improvements" as used in this
Lease shall mean any and all structures and appurtenances thereto
of every type and kind on, at or under the Premises, including, but
not limited to, buildings, outbuildings, garages, sheds, trash
receptacles, patios, patio covers, awnings, additions, walkways,
bicycle trails, sprinkler systems or pipes, garages, roads,
curbing, paving, driveways, parking areas, fences, screening walls,
retaining walls, stairs, decks, fixtures, landscaping hedges,
windbreaks, poles, signs, exterior tanks, solar panels and
equipment, exterior evaporative coolers, air conditioning and water
softener fixtures, wind mills, exterior antennae, aerials and other
equipment for the reception or transmission of radio, television,
microwave, electromagnetic, or other similar or dissimilar
communication systems, and any thing or any device that alters the
natural flow of water from any property adjoining the Premises.
Tenant acknowledges and agrees that the Shopping Center is
adjacent to another shopping center commonly known as The Avenue
Viera ("The Avenue"). Tenant further acknowledges and agrees
(i) that Tenant has no rights and is not benefited by any
restrictions whatsoever with respect to The Avenue and (ii) that
except as may be expressly set forth in this Lease, Tenant has no
rights and is not benefited by any restrictions whatsoever with
respect to the Shopping Center.
Section 1.02. Appurtenant
Easements . The Premises are leased by Landlord to Tenant
subject to and together with the non-exclusive easements,
covenants, conditions and restrictions created and established (i)
by that certain Declaration Regarding Outparcels by Landlord to be
recorded in the Public Records of Brevard County, Florida (the
"Declaration Regarding Outparcels"), a copy of which will be
provided to Tenant by Landlord within thirty (30) days from the
date of this Lease, (ii) by that certain Access, Landscaping,
Lighting and Utility Easement by and among Landlord, The Viera
Company and EPT DownREIT, Inc. dated as of October 27, 2003,
recorded in Official Records Book 5103, page 0820, aforesaid
records, as amended by that certain First Amendment to
Access, Landscaping, Lighting and Utility Easement dated as of May
13, 2004, recorded in Official Records Book 5292, page 1958,
aforesaid records (as amended, the "Access Easement"); and (iii) by
that certain Joint Driveway Easement Agreement between Landlord and
The Viera Company dated as of October 27, 2003, recorded in
Official Records Book 5103, page 0644, aforesaid records (the
"Driveway Easement"). The Declaration Regarding Outparcels,
the Access Easement and the Driveway Easement shall all be deemed
"Permitted Encumbrances."
ARTICLE II. TERM OF
LEASE
Section 2.01. Term of
Lease . The term of this Lease (hereinafter referred to
as "Term") shall commence on the date which is one hundred eighty
(180) days after the full execution and delivery of this Lease
(hereinafter referred to as the "Commencement Date"), and unless
sooner terminated or extended under the terms and conditions
contained herein, shall continue thereafter for twenty (20) years
until 11:59 p.m. local Viera, Florida time on the day
preceding the twentieth (20 th ) anniversary of the
Commencement Date (if the Commencement Date occurs on the first day
of a month) or the last day of the month which is twenty (20) years
after the Commencement Date (if the Commencement Date occurs on a
day other than the first day of a month).
Section 2.02. Options to
Extend Term . Tenant is hereby granted options to extend
the Term of this Lease for four (4) successive additional periods
of five (5) years each (each such additional period being herein
referred to as an "Extended Term") by giving written notice of such
extension to Landlord at least nine (9) months prior to the
expiration of the initial Term of this Lease or the then current
Extended Term, as the case may be. Tenant shall have the
right to exercise these options to extend provided that on the date
of such exercise no Event of Default (as hereinafter defined) under
this Lease then exists. Each Extended Term shall be upon all
of the same terms, covenants and conditions of this Lease then
applicable except that the Rent (as hereinafter defined) during the
Extended Terms shall be as set forth in Sections 3.02 and 3.03
hereof. The term "Term" or the phrase "Term of this Lease" as
used in this Lease shall mean the initial Term and any Extended
Term which may become effective.
Section 2.03. Supplemental
Agreement . Landlord and Tenant shall, within twenty (20)
days after the occurrence of the Commencement Date, execute a
supplemental agreement setting forth the Commencement Date and the
expiration date of the Term of this Lease as determined pursuant to
Section 2.01 hereof and the dates for Minimum Rent adjustments
as determined pursuant to Section 3.02 of this Lease.
Such supplemental agreement, when executed and delivered by
Landlord and Tenant, shall be attached to and become a permanent
part of this Lease.
ARTICLE III. MINIMUM RENT AND
ADDITIONAL RENT
Section 3.01. Minimum
Rent . Tenant covenants and agrees to pay Landlord, in
lawful money of the United States of America, for the period from
the Commencement Date to and including the day immediately
preceding the fifth (5th) anniversary of the Commencement Date
(if the Commencement Date occurs on the first day of a month) or
the last day of the month during which the fifth (5th) anniversary
of the Commencement Date occurs (if the Commencement Date occurs on
a day other than the first day of a month), as rent hereunder, a
base annual minimum rent (hereinafter referred to as "Minimum
Rent") in the amount of One Hundred Ten Thousand and No/100 Dollars
($110,000.00), plus any and all additional sums and charges that
come due under the terms and conditions of this Lease (whether to
Landlord or to third parties) (any and all such sums and charges
being hereinafter referred to as "Additional Rent"). Minimum
Rent and Additional Rent are sometimes referred to herein
collectively as "Rent" or "rent." The Minimum Rent shall be
adjusted for the remainder of the Term as provided in
Section 3.02 hereof.
Minimum Rent shall be payable, in
advance, in twelve (12) equal monthly installments for each
Lease Year (as hereinafter defined), in time to be good funds for
Landlord's account on the first (1 st ) day of each
calendar month during the Term, at the office of Landlord, 2500
Windy Ridge Parkway, Suite 1600, Atlanta, Georgia 30339-5683, or at
such other address as Landlord may from time to time designate in
writing to Tenant. Landlord agrees that Tenant shall have the
right, if it elects, to pay Minimum Rent by means of a wire
transfer of immediately available federal funds to the account of
Landlord, and upon request by Tenant, Landlord agrees to provide
Tenant with Landlord's account information and wiring instructions
to enable Tenant to make payment of Minimum Rent by wire transfer
as aforesaid. Minimum Rent for the first and last months of
the Term shall be prorated on a daily basis if the Term shall begin
or end on a day other than the first or last day of a calendar
month.
Section 3.02. Minimum Rent
Adjustments . As used in this Lease, the term "Lease
Year" shall mean the twelve (12) month period commencing on
the Commencement Date and ending on the day immediately preceding
the first (1 st ) anniversary of the Commencement Date
(if the Commencement Date occurs on the first day of a month)
or the last day of the month during which the first anniversary of
the Commencement Date occurs (if the Commencement Date occurs on a
day other than the first day of a month), and each successive
twelve (12) month period thereafter during the Term. On the
first day of the sixth (6 th ), eleventh (11
th ) and sixteenth (16 th ) Lease Years (each
of such dates being herein referred to as an "Adjustment Date"),
the annual Minimum Rent shall be increased as follows:
For the sixth (6 th ) through
the tenth (10 th ) Lease Years, the sum of One Hundred
Twenty-One Thousand and No/100 Dollars ($121,000.00) per
annum;
For the eleventh (11 th )
through the fifteenth (15 th ) Lease Years, the sum of
One Hundred Thirty-Three Thousand One Hundred and No/100 Dollars
($133,100.00) per annum;
For the sixteenth (16 th )
through the twentieth (20 th ) Lease Years, the sum of
One Hundred Forty-Six Thousand Four Hundred Ten and No/100 Dollars
($146,410.00) per annum.
The Minimum Rent for the twenty-first (21
st ) through the twenty-fifth (25 th ) Lease
Years (if the Term of this Lease is extended for the first Extended
Term) shall be One Hundred Sixty-One Thousand Fifty-One and No/100
Dollars ($161,051.00) per annum; the Minimum Rent for the
twenty-sixth (26 th ) through the thirtieth (30
th ) Lease Years (if the Term of this Lease is extended
for the second Extended Term) shall be One Hundred Seventy-Seven
Thousand One Hundred Fifty-Six and No/100 Dollars ($177,156.00) per
annum; the Minimum Rent for the thirty-first (31 st )
through the thirty-fifth (35 th ) Lease Years (if the
Term of this Lease is extended for the third Extended Term) shall
be One Hundred Ninety-Four Thousand Eight Hundred Seventy-Two and
No/100 Dollars ($194,872.00) per annum; and the Minimum Rent for
the thirty-sixth (36 th ) through the fortieth (40
th ) Lease Years (if the Term of this Lease is extended
for the fourth Extended Term) shall be Two Hundred Fourteen
Thousand Three Hundred Fifty-Nine and No/100 Dollars
($214,359.00).
Section 3.03.
Intentionally Deleted .
Section 3.04. Intentionally
Deleted.
Section 3.05. Intentionally
Deleted .
Section 3.06. Intentionally
Deleted .
Section 3.07. Interest
. Tenant covenants and agrees to pay to Landlord, from time
to time as provided in this Lease, interest (herein referred to as
"Interest" which for all purposes of this Lease shall equal the
lesser of eighteen percent (18%) per annum or the maximum interest
rate permitted by law) on all installments of Minimum Rent not paid
by the tenth (10th) day of the month for which such amount is due,
which Interest shall accrue from the due date through the date of
payment (provided, however, (A) such ten [10] day grace period
shall be applicable only four [4] times in any twelve [12] month
period, and with respect to any installment of Minimum Rent
thereafter coming due within said twelve [12] month period,
Interest shall accrue from the due date of such Minimum Rent
through the date of payment regardless of whether same is paid by
the tenth [10th] day of the month for which such amount is due; and
(B) with respect to any payment of Minimum Rent made by Tenant
after the tenth (10 th ) day of the month,
notwithstanding any grace period provided for in this Section 3.07,
Tenant shall owe Interest on such payment and such Interest shall
accrue from the due date through the date of payment), and Interest
on any Additional Rent not paid within ten (10) days after such
amounts are due, which Interest shall accrue from the due date
through the date of payment. Tenant agrees that the
obligations of Tenant to make all payments of Additional Rent,
including all payments of Interest provided in this Section 3.07,
shall survive any expiration or termination of this
Lease.
Section 3.08. Shared Costs
Under Community Declaration . Landlord and Tenant
acknowledge that the Premises are leased by Landlord to Tenant
subject to that certain Declaration of Covenants, Conditions,
Easements, Reservations and Restrictions for the Central Viera
Community dated July 21, 1994 recorded July 25, 1994 in Official
Records Book 3409, page 0624, in the Public Records of Brevard
County, Florida, as the same has heretofore and may hereafter be
amended (the "Community Declaration") relating to the real property
development known as the Central Viera Community (hereinafter
referred to as the "Development"). Tenant further
acknowledges and agrees that by virtue of this Lease, Tenant will
have the obligations and responsibilities of an "Owner" under the
Community Declaration. Tenant covenants and agrees to pay to
the Declarant (as defined in the Community Declaration) under the
Community Declaration the entire share attributable to the Site of
the "Assessments" as defined in the Community Declaration.
Tenant acknowledges and agrees that the share of the
Assessments which are attributable to the Site shall be determined
pursuant to the terms of the Community Declaration and that such
share of the Assessments attributable to the Site shall be paid by
Tenant to the Declarant under the Community Declaration before the
same become delinquent and before any interest may be added for
nonpayment. The Site's proportionate share, as determined by
the Community Declaration, of any such Assessments for the year in
which the Term commences and terminates or expires shall be
prorated on a daily basis between Landlord and Tenant. If
Tenant fails to pay the Site's proportionate share of any such
Assessments when due, Landlord, with or without declaring a default
hereunder and without relieving Tenant of any liability hereunder,
may, but shall not be obligated to, pay any such amount (or any
installment thereof) and any amount so paid by Landlord shall
constitute Additional Rent hereunder and shall be paid immediately
by Tenant to Landlord on demand with Interest thereon in the manner
provided in Section 3.07 hereof. Tenant's obligation to
pay the Site's share of such Assessments which accrue during the
Term shall survive any termination of this Lease. Tenant
agrees that the obligations of Tenant to make all payments of
Additional Rent, including all payments provided in this Section
3.08, shall survive any expiration or termination of this
Lease.
Section 3.09. Payments
Under Declaration Regarding Outparcels . Landlord and
Tenant acknowledge that the Premises are leased by Landlord to
Tenant subject to the Declaration Regarding Outparcels (as defined
in Section 1.02 hereof). Tenant further acknowledges and
agrees that by virtue of this Lease, Tenant is an "Owner" under the
Declaration Regarding Outparcels. Tenant further covenants
and agrees to pay the annual payments which are the obligation of
the "Owner" of the Site under the Declaration Regarding Outparcels.
Tenant agrees to make such payments under the Declaration
Regarding Outparcels before the same become delinquent and before
any interest may be added for nonpayment. Any such payment
under the Declaration Regarding Outparcels for the year in which
the Term of this Lease terminates or expires shall be prorated on a
daily basis between Landlord and Tenant. If Tenant fails to
pay any such payment under the Declaration Regarding Outparcels
when due, Landlord, with or without declaring a default hereunder
and without relieving Tenant of any liability hereunder, may, but
shall not be obligated to, pay any such amount and any amount so
paid by Landlord shall constitute Additional Rent hereunder and
shall be paid immediately by Tenant to Landlord on demand with
Interest thereon in the manner provided in Section 3.07
hereof. Tenant's obligation to pay any such payments under
the Declaration Regarding Outparcels which accrue during the Term
shall survive any termination of this Lease.
Landlord shall deliver to Tenant for
Tenant's review a draft of the Declaration Regarding Outparcels
within thirty (30) days following the date of this Lease.
Tenant shall not unreasonably withhold, condition or delay
its approval of the Declaration Regarding Outparcels. To the
extent Tenant has comments to the Declaration Regarding Outparcels,
it shall deliver such comments in writing to Landlord within ten
(10) days after Tenant's receipt of the proposed draft. If
Tenant fails to provide such written comments to Landlord within
such ten (10) day period, Tenant shall be deemed to have approved
the form of the Declaration Regarding Outparcels delivered by
Landlord. Tenant acknowledges and agrees that the Declaration
Regarding Outparcels shall provide for annual payments by the
"Owner" of the Site of $4,000.00 and that such annual payments
shall be subject to periodic increases of not less than four
percent (4%) per annum. Tenant agrees that it shall not
withhold approval to the Declaration Regarding Outparcels because
it provides for such annual payments and periodic increases.
Landlord shall have the right, but not the obligation, to
make changes to the Declaration Regarding Outparcels to address
Tenant's written comments. Landlord shall respond in writing
within thirty (30) days following receipt of Tenant's written
comments what if any changes Landlord is willing to make to the
Declaration Regarding Outparcels. Upon receipt of Landlord's
response, Tenant shall elect within five (5) business days
thereafter either (i) to terminate this Lease by giving written
notice to Landlord or (ii) accept the most recent draft of the
Declaration Regarding Outparcels delivered by Landlord. If
Tenant does not notify Landlord in writing within such five (5)
business day period of Tenant's election to terminate this Lease
under this Section 3.09, then this Lease shall remain in full force
and effect, and Tenant shall have no further right to terminate
this Lease under this Section 3.09. If Tenant shall
commence construction of any Improvements on the Site prior to the
expiration of such five (5) business day period, Tenant shall be
deemed to have waived Tenant's right to terminate this Lease under
this Section 3.09.
ARTICLE IV. TAXES, ASSESSMENTS
AND CHARGES
Section 4.01. Taxes and
Assessments . Subject to the provisions of
Section 14.01 hereof (concerning "Permitted Contests"), Tenant
covenants and agrees to discharge and pay before the same become
delinquent and before any fine, penalty, or interest may be added
for nonpayment, any and all taxes, assessments, license or permit
fees, special district or community improvement district
assessments, excises, imposts and charges of every nature and
classification (all or any one of which are hereinafter referred to
as "Taxes") that at any time during the Term (and during any period
prior to the commencement of the Term after possession of the
Premises has been tendered by Landlord to Tenant) are levied,
assessed, charged or imposed upon Landlord's fee simple and/or
reversionary interest in the Premises, the Premises themselves, the
Improvements, this Lease, the leasehold estate of Tenant created
hereby or any Rent or Additional Rent reserved or payable hereunder
(including any gross receipts or other taxes levied upon, assessed
against or measured by the Rent or Additional Rent); provided,
however, Tenant shall not be obligated to pay any municipal, state
or federal income tax imposed on Landlord, and Tenant shall not be
obligated to pay any amounts levied upon Landlord as a franchise,
estate, gift, inheritance, succession or capital levy tax. In
addition to any other amounts to be paid by Tenant pursuant to the
terms of the Lease, Tenant acknowledges that Tenant shall be
required to pay the State of Florida sales and use tax which is
measured by the Rent payable by Tenant under this Lease on a
monthly basis, which amount shall be reimbursed by Tenant to
Landlord on a monthly basis with payments of Rent and Landlord
shall thereupon remit the same to the State of Florida.
Landlord will determine the amount of such tax which is
payable by Tenant and will advise Tenant in writing of the same
during the Lease Term, as the same may be adjusted from time to
time as such tax is imposed by the State of Florida.
Notwithstanding the foregoing to the
contrary, if at any time after the execution of this Lease the
methods of taxation prevailing at the execution of this Lease shall
be altered so that any imposition, which at the date hereof or
during the Term is or shall be levied, assessed or imposed on real
estate and the improvements thereon, is thereafter levied, assessed
or imposed wholly or partially on the rents received from real
estate or the improvements thereon, or as a tax assessment, levy or
license fee (regardless of the form and regardless of the taxing
authority) upon Landlord measured by Rent payable under this Lease,
then all such substitute or additional taxes, assessments, levies
or license fees shall be deemed to be included within the meaning
of the term "Taxes" for purposes hereof. Tenant's obligations
to discharge and pay such Taxes shall commence on the date Landlord
tenders possession of the Premises for construction of
Improvements.
Landlord shall use reasonable efforts to
obtain from the taxing authorities a separate tax parcel assessment
for the Premises (and Improvements located thereon) and to cause
Tenant to be named as the party to whom all such bills and
assessments should be sent. If such separate assessment shall
be obtained, Tenant shall pay the Taxes directly to the taxing
authority. If such separate assessment shall not be obtained,
the valuation placed on the Premises and the Improvements by the
applicable taxing authority shall be used as the appropriate
standard for determining the Taxes payable by Tenant. If this
valuation is not available, Tenant shall pay a share of the Taxes
included in Landlord's tax bill, which share shall be determined in
a fair and equitable manner, giving consideration to the value of
the various improvements on the real property covered by such tax
bill. If the Premises are not separately assessed, Landlord
shall notify Tenant of Tenant's proportionate share of the Taxes
and will furnish Tenant with a copy of the tax bill within fifteen
(15) days after receipt by Landlord thereof. Tenant shall pay
its share of the Taxes as set forth above to Landlord not later
than ten (10) days before the taxing authority's delinquency date
or ten (10) days after receipt of a bill from Landlord, whichever
is later. In no event shall Tenant be liable for interest or
penalties for Landlord's failure to pay the Taxes prior to
delinquency, unless Tenant fails to timely pay its share of such
Taxes as provided above.
Section 4.02. Charges
. Subject to the provisions of Section 14.01 hereof
(concerning "Permitted Contests"), Tenant covenants and agrees that
it shall pay when due all charges for all public or private utility
services including, but not limited to, water, sewer, gas, light,
heat and air conditioning, telephone, electricity, cable television
(if and when available), trash removal, power and other utility and
communications services (all or any one of which hereinafter
referred to as "Charges") that are rendered or become due and
payable with respect to the Premises at any time during the Term
and during any period prior to the commencement of the Term after
Tenant takes possession of the Premises for the construction of
Improvements. Landlord and Tenant shall use reasonable
efforts to cause the applicable governmental authority providing
water service to the Premises to separately meter the water
consumption at the Premises and charge Tenant directly for such
water service (and associated sewer service). In the event
the governmental authority providing water service to the Premises
is unwilling to do so, Landlord agrees that Landlord will submeter
the water consumption at the Premises, and Tenant agrees to pay the
applicable Charge for such water (and associated sewer service) to
Landlord, based upon the submetered consumption of water at the
Premises and at the same rate that Tenant would pay if such water
service (and associated sewer service) were provided directly to
Tenant with respect to the Premises by the applicable governmental
authority. Tenant agrees to pay Landlord for such water
service (and associated sewer service) within fifteen (15) days
after receipt by Tenant of request for payment from Landlord (but
not more frequently than monthly), which request for payment shall
be accompanied by information regarding the submetered consumption
of water at the Premises and a copy of the most recent water and
sewer bill received by Landlord with respect to the Premises and
the other real property covered by such bill.
Section 4.03. General
. Tenant shall prepare and file all reports and returns
required by law and governmental regulations with respect to any
Taxes and, upon Landlord's request, shall furnish copies thereof to
Landlord. Tenant shall promptly forward to Landlord copies of
any bill or assessment respecting any Taxes upon Tenant's receipt
thereof from the taxing authority. Likewise, Landlord shall
promptly furnish to Tenant copies of any bill or assessment
respecting any Taxes upon Landlord's receipt thereof from the
taxing authority. Upon request of Landlord, Tenant agrees to
furnish and deliver to Landlord receipts evidencing the payment of
any Taxes and/or Charges payable by Tenant as provided in
Section 4.01 and Section 4.02 hereof. If the Taxes
shall include any special assessments for improvements which may be
paid in installments, Tenant shall be obligated to pay only such
installments as they become due and shall be obligated to pay only
such installments which are to become due and payable prior to the
expiration of the Term; provided, however, that in the event this
Lease is terminated prior to the scheduled expiration of the Term
as a result of Tenant's default, any and all installments which are
to become due and payable after the termination of this Lease but
prior to the scheduled expiration of the Term shall be due and
payable by Tenant upon such termination. Any Taxes for the
year in which the Term commences and terminates or expires shall be
prorated on a daily basis between Landlord and Tenant. If
Tenant fails to pay any Taxes and/or Charges (or any installment
thereof) when due, Landlord, without declaring a default hereunder
and without relieving Tenant of any liability hereunder, may, but
shall not be obligated to, pay any such Taxes and/or Charges (or
any installment thereof) and any amount so paid by Landlord,
together with all costs and expenses incurred by Landlord in
connection therewith, shall constitute Additional Rent hereunder
and shall be paid immediately by Tenant to Landlord on demand with
Interest thereon in the manner provided in Section 3.07
hereof. Tenant's obligation to pay Taxes and Charges which
accrue during the Term shall survive any termination of this
Lease.
Section 4.04. Impact
Fees . Tenant shall be solely responsible for and shall
pay any charges in the nature of building permit fees and impact
fees attributable to the construction of Improvements on the Site.
Tenant, and not Landlord, shall also be responsible for all
connection charges, user fees, water meter fees, tap-on fees and/or
user charges and similar fees and charges imposed with respect to
any utilities serving the Premises, including any temporary utility
charges in connection with the construction of Improvements by
Tenant including, without limitation all Brevard County impact
fees, Brevard County sewer capacity reservation fees, Brevard
County commercial sewer connection charges, City of Cocoa water
impact fees, and City of Cocoa South Mainland connection charges.
ARTICLE V. NET LEASE;
NON-TERMINATION
Section 5.01. Net
Lease . This Lease is a net lease and Rent shall be paid
without notice, demand (except as expressly provided herein in the
case of certain Additional Rent), counterclaim, setoff, recoupment,
deduction or defense and, without abatement, suspension, deferment,
diminution or reduction. It is the purpose and intent of
Landlord and Tenant that Rent (where payable to Landlord) shall be
absolutely net to Landlord, so that this Lease shall yield, net, to
Landlord, Rent specified throughout the Term, and that all costs,
expenses and obligations of every kind and nature whatsoever
relating to the Premises (except the taxes of Landlord referred to
in Section 4.01 hereof) which may arise and become due as
specified herein during the Term shall be paid by Tenant, and that
Landlord shall be indemnified and saved harmless by Tenant from and
against the same.
Section 5.02.
Non-Termination . Except as otherwise expressly
provided in this Lease, this Lease shall not terminate nor shall
Tenant have any right to terminate this Lease or be entitled to the
abatement of any Rent hereunder or any reduction thereof, nor shall
the obligations of Tenant under this Lease be otherwise affected,
by reason of (a) any damage to or destruction of all or any
portion of the Premises from whatever cause, (b) the
prohibition, limitation or restriction of or interference with
Tenant's use of all or any portion of the Premises, (c) the
failure on the part of Landlord to perform or comply with any term,
provision or covenant of this Lease or any other agreement to which
Landlord and Tenant may be parties, (d) any claim which Tenant
has or might have against Landlord, or (e) for any other
cause, whether similar or dissimilar to the foregoing. Except
as otherwise expressly provided in this Lease, Tenant waives all
rights now or hereafter conferred by statute or otherwise to quit,
terminate or surrender this Lease or the leasehold estate in the
Premises or any part thereof, and to any abatement, recoupment,
suspension, deferment, diminution or reduction of Rent.
Notwithstanding the foregoing, upon the
default by Landlord of any obligation in this Lease that it is
required to perform or observe, then if (and only if) such default
materially and adversely affects the business operations conducted
by Tenant on the Premises (a "Qualifying Default"), Tenant shall
have the right to terminate this Lease, provided, however, that
before Tenant shall be entitled to exercise such right to
terminate, Tenant shall first give Landlord the opportunity to cure
such default as follows: (i) upon the occurrence of a default by
Landlord that is a Qualifying Default, Tenant shall provide
Landlord with written notice describing such Qualifying Default in
reasonable detail and the steps to be taken by Landlord to cure
such default (the "Initial Notice"); (ii) the Initial Notice shall
also contain the following legend on the first page thereof: "THIS
LETTER IS NOTICE UNDER SECTION 5.02 OF THE LEASE THAT A DEFAULT HAS
OCCURRED WHICH ENTITLES TENANT TO TERMINATE THE LEASE UNLESS SUCH
DEFAULT IS CURED"; (iii) Landlord shall have thirty (30) days
following Landlord's receipt of the Initial Notice to cure such
Qualifying Default, or if such Qualifying Default cannot be cured
within such 30-day period, then Landlord shall have such additional
time as shall be reasonably required to cure such Qualifying
Default, provided that Landlord commences the cure of such
Qualifying Default within the initial 30-day period and thereafter
diligently pursues such cure to completion; (iv) in the event
Landlord fails to cure such Qualifying Default within the time
periods set forth in (iii), then Tenant shall deliver a second
written notice to Landlord, which notice shall state that Tenant
has elected to terminate the Lease (the "Termination Notice") due
to Landlord's failure to cure the Qualifying Default identified in
the Initial Notice; (v) the Termination Notice shall also contain
the following legend on the first page thereof: "THIS LETTER IS
NOTICE UNDER SECTION 5.02 OF THE LEASE THAT A DEFAULT HAS OCCURRED
WHICH ENTITLES TENANT TO TERMINATE THE LEASE UNLESS SUCH DEFAULT IS
CURED"; and (v) such termination by Tenant shall be effective
ninety (90) days after Landlord has received the Termination Notice
unless Landlord shall have cured the Qualifying Default identified
in the Initial Notice by the end of such 90-day period, in which
case the termination by Tenant shall be null and void and the Lease
shall continue in full force and effect.
ARTICLE VI. CONDITION,
SUITABILITY AND USE OF THE PREMISES
Section 6.01. Condition
and Suitability of the Premises . TENANT AGREES THAT,
EXCEPT FOR LANDLORD'S SITE WORK AS PROVIDED IN SECTION 6.02 HEREOF,
TENANT IS LEASING THE PREMISES, INCLUDING, WITHOUT LIMITATION, THE
IMPROVEMENTS, "AS IS," AND LANDLORD MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, AS TO FITNESS, MERCHANTABILITY, USE OR CONDITION OF EITHER
OR BOTH THE PREMISES OR THE IMPROVEMENTS. Except as provided
in Section 6.02 below with respect to Landlord's Site Work, Tenant
leases the Premises without representation or warranty by Landlord,
express or implied, in fact or by law, and without recourse, with
respect to (a) the condition of the Premises, including, but
not limited to the soil and subsurface conditions thereof,
(b) the ability to use the Premises for any particular
purpose, (c) access to or from the Premises, and (d) the
existence or adequacy of present or future availability of any
utilities to service the Premises, including, but not limited to,
drainage and sewage facilities. Tenant acknowledges that as
of the date hereof cable television and telecommunications service
is not available to the Site and Tenant further acknowledges that
Landlord shall have no obligation to make such service available to
the Site. Tenant or its agents or employees shall have until
the date which is one hundred twenty (120) days after the full
execution and delivery of this Lease (the "Inspection Period") to
enter upon the Premises to inspect, test, examine, survey, make
test borings, soil bearing tests or other engineering tests,
surveys, observations, or studies as Tenant may deem necessary, and
to ascertain (i) the availability of necessary approvals of
Tenant's plans for its proposed Improvements and (ii) the
availability of utilities and services, zoning approvals for
Tenant's intended use, and all federal, state or other local
permits or licenses and approvals for the operation of Tenant's
intended use. Tenant shall be entitled to terminate this
Lease upon notice in writing to Landlord at any time prior to the
expiration of the Inspection Period, if Tenant shall determine that
the condition of the Premises is unsatisfactory for Tenant's
intended use or that any necessary utilities, services, licenses,
permits or approvals are unavailable. If Tenant does not
notify Landlord in writing prior to the expiration of the
Inspection Period of Tenant's election to terminate this Lease for
any of the foregoing reasons, then this Lease shall remain in full
force and effect, and Tenant shall have no further right to
terminate this Lease under this Section 6.01. Likewise, if
Tenant shall commence construction of any Improvements on the Site
prior to the expiration of the Inspection Period, Tenant shall be
deemed to have waived Tenant's right to terminate this Lease under
this Section 6.01.
Section 6.02. Site
Preparation and Delivery of Site . Subject to its right
to reimbursement as set forth below, Landlord agrees that Landlord
shall complete the following work in a good and workmanlike manner
and in compliance with all applicable governmental codes, laws,
ordinances, orders and regulations (collectively, "Landlord's Site
Work"):
(i)
On or before June 30, 2005, Landlord
shall clear and grade the Site substantially in accordance with
those certain plans and specifications described on
Exhibit "H" attached hereto and by reference made a
part hereof (the "Grading Work"). Landlord shall compact the
soil to a density of 95% standard proctor;
(ii)
On or before September 1, 2005, Landlord
shall construct and install a sidewalk and landscaping at the front
of the Site along Lake Andrew Drive in accordance with the
requirements of the Community Declaration (the "Landscape
Work");
(iii)
On or before September 1, 2005, Landlord
shall construct and install deceleration lanes serving the Site and
the adjacent Shopping Center in the right-of-way of Lake Andrew
Drive (the "Deceleration Lane");
(iv)
Prior to the date hereof, Landlord has
constructed and installed a curb cut, and approximately 40-foot
long driveway and related improvements (collectively, the "Lake
Andrew Drive Curb Cut"), which is located in the northwest corner
of the Site and which is designed to provide access to both the
Site and the adjacent Outparcel 3; and
(v)
On or before August 15, 2005, Landlord
shall cause water (six-inch diameter), sanitary sewer (six-inch
diameter lateral), telephone, electricity and gas utility lines to
be made available to the Site either within the right-of-way of
Lake Andrew Drive or within or along the driveway located east of
and adjacent to the Site and depicted in the Site Plan (the "Rear
Drive").
(vi)
On or before August 15, 2005, Landlord
shall provide stormwater drainage structures at the property line
of the Site connecting the Site to the off-site retention area
serving the Shopping Center.
(vii)
On or before August 15, 2005, Landlord
shall construct and install one (1) additional lane to the Rear
Drive (the "Additional Lane"). As part of the Additional Lane
work, Landlord will install curbs and gutters along the entire
length of the Rear Drive. Tenant acknowledges that Tenant
shall be responsible for any and all curb and gutter work necessary
to install the curb cuts and driveways providing access, ingress
and egress from the Premises onto the Rear Drive. Tenant
acknowledges that while the Additional Lane is under construction,
the Rear Drive will be temporarily closed and access, ingress and
egress to the Site will not be available from the Rear
Drive.
Landlord agrees that it shall deliver
possession of the Site to Tenant, and Tenant agrees that it shall
accept such delivery, on the date that the Landlord's Site Work
described in paragraphs (i), (v) and (vi) (collectively, the
"Pre-Delivery Work") is completed (the "Possession Date"), which
Possession Date shall not be later that the end of the Inspection
Period. Tenant hereby acknowledges that, except for the
Pre-Delivery Work, the remaining Landlord's Site Work may be
completed by Landlord after the Possession Date. Landlord
shall endeavor to provide notice to Tenant ten (10) business days
in advance of the anticipated Possession Date. Tenant shall
reimburse Landlord for the Grading Work, the Landscape Work, the
Deceleration Lane and the Lake Andrews Drive Curb Cut
(collectively, the "Reimbursable Site Work") on a per acre basis
(and which shall be prorated for any partial acre) as follows:
|
Work Description :
|
Reimbursement Per Acre
|
|
Grading Work
|
$ 11,000.00
|
|
Landscape Work
|
20,000.00
|
|
Deceleration Lane
|
6,667.00
|
|
Lake
Andrews Drive Curb Cut
|
1,500.00
|
|
|
|
|
TOTAL:
|
$ 39,167.00
|
Tenant's obligations hereunder for the
Reimbursable Site Work shall constitute Additional Rent under this
Lease and shall be an amount equal to the product of $39,167.00
multiplied by the number of acres (prorated for any partial acres)
contained in the Site. The payment to be made by Tenant for
the Reimbursable Site Work shall be due and payable by Tenant not
later than the Possession Date.
Section 6.03. Permit
Contingency . Tenant shall have until the expiration of
the Inspection Period (the "Permit Date") to obtain Tenant's
building permit for the construction of Tenant's Improvements on
the Site in accordance with Tenant's Plans (as hereinafter defined)
which have been approved by Landlord in accordance with the
provisions of Section 6.04 hereof. Tenant agrees to submit
its application for such building permit, together with such plans
and other materials required to be filed in connection with such
application, promptly following the approval of such Tenant's
Plans, and Tenant agrees to diligently prosecute efforts to obtain
such building permit. If Tenant shall timely submit Tenant's
Plans and shall timely file its application for such building
permit and shall fail to obtain such permit by the Permit Date,
despite diligent efforts by Tenant to obtain same, Tenant shall be
entitled to terminate this Lease upon notice in writing to Landlord
at any time within five (5) days after the Permit Date. If
Tenant does not notify Landlord in writing of its election to
terminate this Lease as provided herein prior to the expiration of
such five (5) day period, then this Lease shall remain in full
force and effect, and Tenant shall have no further right to
terminate this Lease under this Section 6.03. Likewise,
if Tenant shall commence construction of any Improvements on the
Site prior to the Permit Date, Tenant shall be deemed to have
waived Tenant's right to terminate this Lease under this
Section 6.03. Upon receipt of Tenant's notice of its
election to terminate this Lease under this Section 6.03, Landlord
shall have the right, but not the obligation, to notify Tenant in
writing within five (5) days after Landlord's receipt of Tenant's
notice terminating the Lease of its election to obtain Tenant's
building permit on Tenant's behalf and at Tenant's sole cost and
expense for the construction of Tenant's Improvements on the Site
in accordance with Tenant's Plans. If Landlord makes such
election, Landlord shall have the right to revise Tenant's Plans in
order to cause Tenant's Plans to comply with the requirements of
Brevard County, Florida and this Lease shall not terminate unless
Landlord notifies Tenant in writing of its election to no longer
attempt to obtain Tenant's building permit. If Landlord
obtains Tenant's building permit, Tenant shall have no further
right to terminate this Lease under this Section 6.03.
Section 6.04. Construction
of the Improvements . Subject to the terms and conditions
of this Lease, Tenant shall commence the construction of its
Improvements on the Premises within thirty (30) days of the
issuance of a building permit, provided that at all times Tenant
shall diligently and continuously pursue the issuance of such
building permit. Tenant covenants and agrees that it will
pursue such construction diligently until completion and that there
shall be no abandonment of said construction for any period
exceeding ten (10) business days, plus any extensions of said
period caused by strikes, lockouts, casualty or similar causes
beyond the reasonable control of Tenant.
Tenant hereby covenants and agrees that
construction of the Improvements (including without limitation any
future replacements, alterations, additions or modifications) shall
commence only when Tenant has obtained the unqualified and
unconditional approval by Landlord, pursuant to the Declaration
Regarding Outparcels, and by the Declarant under the Community
Declaration (which plan approval from the Declarant under the
Community Declaration shall be governed by the terms of the
Declaration Regarding Outparcels), of any and all preliminary and
final plans and specifications (the "Tenant's Plans") relating to
construction of the Improvements. Tenant hereby agrees that
it will cause Tenant's Plans to be prepared and submitted to
Landlord on or before the day that is the forty-fifth (45
th ) day prior to the expiration of the Inspection
Period. Tenant further agrees that only one (1) building
shall be constructed on the Site, the total floor area of which
shall not exceed 6,000 square feet, and no building on the Site,
including all architectural features of such building, shall exceed
twenty-eight (28) feet in height above finished floor elevation.
Tenant further agrees that the Tenant's Plans will provide
for, and Tenant will cause to be constructed and installed, as part
of the Tenant Improvements, (i) one (1) driveway connection with
each outparcel adjoining the Site, such driveway(s) to be located
approximately eighteen (18) feet in front of the sidewalk and
landscape easement along Lake Andrew Drive, and (ii) one (1) five
(5) foot wide sidewalk the full width of the Site along the Rear
Drive. Upon approval of Tenant's Plans, Landlord will
allocate and convey to Tenant the actual number of square feet of
retail development rights required to so construct the building
contemplated by Tenant's Plans pursuant to the process required
therefor in Brevard County. In no event shall Tenant be
permitted to construct a building in excess of the number of square
feet of retail development rights so allocated to the Site.
The Premises shall contain not less than the number of
parking spaces required by applicable laws, codes, ordinances and
regulations, without reduction in such number by virtue of the
granting of a variance or special exception to such laws, codes,
ordinances or regulations by the governmental authority having
jurisdiction thereof. All of the Improvements to be
constructed by Tenant shall be installed in compliance with all
applicable governmental codes, laws, ordinances, orders and
regulations. Tenant shall insure that all work shall be done
in a good and workmanlike manner with first-class materials and in
accordance with the Tenant's Plans. Prior to the commencement
of construction of the Improvements, Tenant shall furnish to
Landlord assurance satisfactory to Landlord, that the Improvements
will be completed and that all bills for work, labor and materials
incurred therefor will be paid, including, in the event Landlord
shall so request, payment, performance and/or completion bonds
fully and properly executed in an amount not less than the total
cost of construction of the Improvements.
During the course of construction of the
Improvements, Tenant shall not alter, modify or amend the Tenant's
Plans (except in an immaterial manner not affecting the exterior
appearance of the Improvements) and shall not permit the
construction to progress other than in accordance with the Tenant's
Plans without first obtaining Landlord's written approval and the
approval of the Declarant under the Community Declaration.
Landlord shall have the right, during the construction
period, to have its representative monitor construction and report
on its progress and compliance with the Tenant's Plans. If
such report shows deviations from the approved Tenant's Plans,
Tenant, upon notice, shall take immediate steps, at its expense, to
conform the construction to the previously approved Tenant's Plans.
Within thirty (30) days after completion of the
Improvements, Tenant shall deliver to Landlord, at Tenant's
expense, copies of the following items: (a) an
"as-built" survey of the Site and Improvements, certified by a
registered land surveyor licensed by the State of Florida, showing
the Improvements and utilities in place in relation to the
boundaries of the Site; (b) an A.I.A. form architect's
certificate of completion, certifying that the Improvements have
been constructed and completed, specifying the particularities of
any variation therefrom; (c) a final contractor's affidavit
prepared in accordance with subsection 713.06(3), Florida Statutes,
setting forth all unpaid bills for labor and materials furnished in
connection with the work performed in connection with the
Improvements and stating that all other bills for labor and
materials have been paid by the contractor in full and that no lien
or claim of lien may be filed, recorded or enforced for the same
against Landlord or the Premises; (d) if requested by Landlord,
waivers of liens with respect to the Premises executed by all
subcontractors and materialmen performing work or supplying labor
or materials in connection with the Improvements; and (e) a
certificate of occupancy for the Premises issued by the appropriate
governmental authorities.
Section 6.05. Use of the
Premises; No Abandonment . Subject to the terms and
conditions hereof, Tenant, its successors or assigns (as permitted
hereunder), shall use and occupy the Premises during the
first (1 st ) year of the Term for conducting the
business of a full service banking facility with drive-through
service; and after the first (1 st ) year of the Term
for any other lawful retail purpose (i) that is consistent
with a first-class shopping center and is approved by Landlord,
such approval not to be unreasonably withheld and (ii) that does
not violate any (x) recorded restrictive covenants affecting the
Premises as of the effective date of the desired change in use, (y)
exclusive uses and prohibited uses set forth on
Exhibit "I" attached hereto and made a part hereof, and
(z) any then existing exclusive uses and prohibited uses imposed
upon the Premises pursuant to any leases of other tenants or
imposed by another occupant of the Shopping Center as of the date
of the desired change in use (hereinafter referred to as the
"Permitted Business"). Tenant agrees to open for the conduct
of a full service banking facility with drive-through service on
the Premises promptly upon completion of construction of its
facility for conducting the Permitted Business, and in no event
later than the earlier of (i) the date that is the one
hundred eightieth (180 th ) day after the commencement
by Tenant of construction of the Improvements and (ii) the date
that is the three hundred thirtieth (330 th ) day after
the date of this Lease, and to thereafter continuously, actively
and diligently operate the Permitted Business in the Premises
during the Term. Tenant also agrees to comply with the Rules
and Regulations set forth in Exhibit "E" attached
hereto.
Section 6.06.
Tenant's Exclusive Use
. Landlord covenants and agrees
during the Term (subject to other provisions of this Section 6.06)
Landlord shall not enter into any lease with a tenant that permits
such tenant to use any portion of the property identified as
Outparcel 1 in the Site Plan for a full service bank.
Landlord further covenants and agrees that Landlord will not
sell Outparcel 1 to any purchaser whose primary business is the
operation of a full service bank. Notwithstanding anything
contained in this Section 6.06 to the contrary, the restrictions
contained in this Section 6.06 shall terminate and be null and void
upon the occurrence of any of the following events: (i)
Tenant ceases to operate the Premises as a full service bank and
such cessation of operations continues for a period in excess of
ninety (90) days, subject to closures due to a remodeling (not to
exceed 90 days) or a casualty or condemnation (not to exceed 270
days for restoration); (iii) the assignment of this Lease by Tenant
or the subletting by Tenant of all or a portion of the Premises; or
(iv) the termination or expiration of this Lease in accordance with
the terms hereof.
Section 6.07.
Survey Landlord shall cause a survey to be made of the
Site and all permanent improvements located thereon by a Florida
Registered Land Surveyor, which survey (the " Survey ")
shall be certified in favor of both Landlord and Tenant and which
Survey shall, on or before the date that is thirty (30) days after
the date of this Lease, be submitted to Tenant. Tenant shall
reimburse Landlord for the actual costs and expenses of the Survey.
Such costs and expenses shall be deemed Additional Rent under
this Lease and shall be payable by Tenant within ten (10) days
following demand for payment thereof.
ARTICLE VII. COMPLIANCE WITH
LAW; LIENS AND ENCUMBRANCES
Section 7.01. Compliance
with Laws . Subject to the provisions of
Section 14.01 hereof (concerning "Permitted Contests"),
Tenant, at its sole cost and expense, shall comply with and cause
the Premises and any and all Improvements located thereon, to
comply with (a) all federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations,
ordinances or recommendations affecting the Premises or any part
thereof, or the use thereof, including those which require
"Repairs", as that term is defined in Section 8.01 hereof, or
any structural changes in the Improvements whether or not any such
statutes, laws, rules, orders, regulations, ordinances or
recommendations which may hereafter be enacted involve a change of
policy on the part of the governmental body enacting the same,
(b) all rules, orders and regulations of the National Board of
Fire Underwriters or other bodies exercising similar functions and
responsibilities in connection with the prevention of fire or the
correction of hazardous conditions which apply to the Premises, and
(c) the requirements of all policies of public liability, fire
and other insurance which at any time may be in force with respect
to the Premises (all or any one of the items enumerated in this
Section 7.01 hereinafter referred to as
"Regulation").
Section 7.02. Tenant's
Agreement Relating to Hazardous Substances . Tenant
hereby covenants that Tenant and its agents, employees and
contractors will not generate, store, use, treat or dispose of any
"Hazardous Substances" (as hereinafter defined) in, on or at the
Premises or any part of the Improvements, except for Hazardous
Substances as are commonly legally used or stored (and in such
amounts as are commonly legally used or stored) as a consequence of
using the Premises for the Permitted Business, but only so long as
the quantities thereof do not pose a threat to public health or to
the environment or would necessitate a "response action", as that
term is defined in CERCLA (as hereinafter defined), and so long as
Tenant strictly complies or causes compliance with all laws,
statutes, rules, orders, regulations, ordinances and decrees
concerning the use or storage of such Hazardous Substances.
Tenant further covenants that neither the Premises nor any
part of the Improvements shall ever be used by Tenant or its
agents, contractors or employees as a dump site or storage site
(whether permanent or temporary) for any Hazardous Substances
during the Term.
Tenant hereby agrees to indemnify
Landlord and hold Landlord harmless from and against any and all
losses, liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, costs of any
settlement or judgment and claims of any and every kind whatsoever
paid, incurred or suffered by, or asserted against, Landlord by any
person or entity or governmental agency for, with respect to, or as
a direct or indirect result of, the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission,
discharging or release on or from, the Premises or the Improvements
of any Hazardous Substance [including, without limitation, any
losses, liabilities, including without limitation strict liability,
damages, injuries, expenses, including without limitation
reasonable attorneys' fees, costs of any settlement or judgment or
claims asserted or arising under the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), any so called
federal, state or local "Superfund" or "Superlien" laws, or any
federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing
liability, including strict liability, or standards of conduct
concerning any Hazardous Substance].
For purposes of this Lease, "Hazardous
Substances" shall mean and include those elements or compounds
which are contained in the lists of hazardous substances or wastes
now or hereafter adopted by the United States Environmental
Protection Agency (the "EPA") or the lists of toxic pollutants
designated now or hereafter by Congress or the EPA or which are
defined as hazardous, toxic, pollutant, infectious or radioactive
by CERCLA or any Superfund law or any Superlien law or any other
Federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time
hereafter in effect.
Landlord shall have the right but not the
obligation, and without limitation of Landlord's rights under this
Lease, to enter onto the Premises or to take such other actions as
it deems necessary or advisable to clean up, remove, resolve or
minimize the impact of, or otherwise deal with, any Hazardous
Substance following receipt of any notice from any person or entity
(including without limitation the EPA) asserting the existence of
any Hazardous Substance in, on or at the Premises or any part
thereof which, if true, could result in an order, suit or other
action against Tenant and/or Landlord; provided, however, Landlord
agrees that, except in the case of an emergency, Landlord will take
such action only after written notice to Tenant of the alleged
existence of Hazardous Substances and the failure by Tenant within
a reasonable period of time following receipt of such notice to
commence, or the failure by Tenant to thereafter diligently pursue
to completion, the appropriate action to clean-up, remove, resolve
or minimize the impact of such Hazardous Substances. All
reasonable costs and expenses incurred by Landlord in the exercise
of any such rights, which costs and expenses result from the
violation of the covenants and agreements of Tenant contained in
the first paragraph of this Section 7.02, shall be deemed
Additional Rent under this Lease and shall be payable by Tenant
upon demand.
This Section 7.02 shall survive
cancellation, termination or expiration of this Lease.
Section 7.03. Liens and
Encumbrances . Subject to the provisions of
Section 14.01 hereof (concerning "Permitted Contests"), Tenant
shall not create or permit to be created or to remain, and, shall
promptly discharge, at its sole cost and expense, any lien,
encumbrance or charge (all or any one of which hereinafter referred
to as "Lien") upon the Premises, or any part thereof or upon
Tenant's leasehold estate created hereby that arises from the use
or occupancy of the Premises by Tenant or by reason of any labor,
service or material furnished or claimed to have been furnished to
or for the benefit of Tenant or by reason of any construction,
Repairs or demolition by or at the direction of Tenant of all or
any part of the Improvements, or by reason of any Permitted Contest
under Section 14.01 hereof.
Notice is hereby given that Landlord
shall not be liable for the cost and expense of any labor, services
or materials furnished or to be furnished with respect to the
Premises at or by the direction of Tenant or anyone holding the
Premises or any part thereof by, through or under Tenant and that
no laborer's, mechanic's or materialman's or other lien for any
such labor, service or materials shall attach to or affect the
interest of Landlord in and to the Premises. Nothing
contained in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, express or
implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any improvements or
Repairs to or of the Premises or any part thereof, nor as giving
Tenant any right, power or authority on behalf of Landlord to
contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of
any Lien against the Premises or any part thereof.
If Tenant fails to discharge any Lien
created or established in violation of Tenant's covenant herein or
to comply with any Regulation as hereinabove provided, and if such
failure continues for a period of fifteen (15) days after receipt
by Tenant of notice of the existence of the Lien or twenty (20)
days after receipt by Tenant of notice of noncompliance with any
Regulation, and provided such Lien or Regulation is not being
contested by Tenant pursuant to Section 14.01 hereof,
Landlord, without declaring a default hereunder and without
relieving Tenant of any liability hereunder, may, but shall not be
obligated to, discharge or pay such Lien (either by paying the
amount claimed to be due or by procuring the discharge of such Lien
by deposit or by bonding proceedings) or cause compliance with such
Regulation, and any amount so paid by Landlord and all costs and
expenses incurred by Landlord in connection therewith shall
constitute Additional Rent hereunder and shall be paid immediately
by Tenant to Landlord upon demand by Landlord, with Interest
thereon from the date of demand by Landlord.
ARTICLE VIII. REPAIRS AND
ALTERATIONS
Section 8.01. Tenant's
Maintenance and Repair . Tenant, at all times during the
Term, at its expense, shall keep the Premises, including, without
limitation, the Improvements, in good order, condition and repair
and in substantially the condition on the completion of
construction, ordinary wear and tear excepted, and in compliance
with the maintenance standards set forth in the Community
Declaration and the Declaration Regarding Outparcels. Tenant
further agrees to be responsible for maintaining the landscaping
surrounding Tenant's building and parking area in accordance with
first-class landscape maintenance standards, including the
sidewalks and all landscaping
