LEASE
THIS LEASE, made this 6th day of September, 1997, by and
between J. Xxxx Xxxxx d/b/a J. Xxxx Xxxxx & Associates
("Landlord")and HEARTLAND BANCSHARES, INC. ("Tenant").
WITNESSETH:
ARTICLE I
LEASED PREMISES AND COMMON AREAS
Section 1.01. Leased Premises. Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord a portion of an
integrated shopping center building (the "Leased
Premises") commonly known as 000 X. X.X. 000, located at the
Xxxxxxxxx xxxxxx xx Xxxxx Xxxx 000 and Library Boulevard,
Greenwood, Indiana, on the real estate described in the attached
Exhibit A, incorporated herein by reference (the "Shopping
Center"). The portion of the Shopping Center hereby leased to
Tenant is outlined in red and designated as bank space, on the
attached Exhibit B, incorporated herein by reference (the
approximately 3,800 square feet ("Gross Leasable Area")).
Landlord shall be entitled to change or modify the Common Areas
(as defined in Section 5.01 hereof) or other improvements and
facilities of the Shopping Center provided that neither the
Leased Premises nor the general character of the Shopping Center
shall be changed.
Section 1.02. Use of Common Areas. Landlord grants to
Tenant, its agents, employees. invitees, licensees and
concessionaires, the non-exclusive right during the Term to use
the parking areas and ingress, egress and access roads and other
facilities in the Common Areas as shall be made available by
Landlord in its sole discretion. Tenant's use of the Common
Areas shall be in common with others entitled to the use thereof
and subject to the provisions of this Lease.
Section 1.03. Roof and Walls. Landlord shall have the
exclusive right to use all or any part of the roof and exterior
walls of the leased Premises for any purposes; to erect
additional stories or other structures over all or any part of
the Leased Premises, and to install, maintain, use, repair and
replace pipes, ducts, conduits, and wires leading through the
Leased Premises provided Landlord does so in a manner reasonably
calculated to minimize any interference with Tenant's use of the
Leased Premises.
ARTICLE II
LEASE TERM
Section 2.01. Term. The term of this Lease shall be for the
period commencing on the "Commencement Date" (as hereinafter
defined) and continuing for Ten (10) years from (i) the Rental
Commencement Date, if such date is the first day of a calendar
month, or (ii) the first day of the calendar month immediately
following the Rental Commencement Date, if such date is not the
first day of a calendar month ("Original Term"). The
"Commencement Date" shall be the date the improvements to be
constructed by Landlord as provided in Section 3.01 are
substantially completed, but in no event earlier than sixty (60)
days after the date the interior of the Leased Premises is
enclosed and ready to be built out (the "Build-Out Date"). The
"Rental Commencement Date" shall be the Commencement Date. As
used in this Lease, the term "Lease Year" shall mean a calendar
year, the first Lease Year commencing on the first day of January
following the Rental Commencement Date, and each succeeding Lease
Year commencing on the anniversary of the first Lease Year. A
"Fractional Lease Year" is defined to mean the period of the
Lease Term following the last full calendar Lease Year, whether
the Lease expires by its terms or otherwise. The Original term
and any renewal thereof are herein referred to as the "Leased
Term".
If Tenant is not in default hereunder, Tenant shall have the
option to renew the term of this Lease for one (1) additional
term of five (5) years each ("Option Period"). Such renewal
shall, be upon the same terms and conditions contained in the
Lease for the Original Term except for this provision giving the
renewal option and subject to an adjustment of the Minimum Annual
Rent (as hereinafter defined) as provided in Section 4.01 and
herein. Such option shall be exercised by the occurrence of each
of the following events: (i) Tenant's giving written notice to
Landlord of its intention to renew the Term of this Lease no
later than six (6) months prior to the expiration of the Lease
Term, and (ii) Tenant's giving written notice to landlord of its
acceptance of the Minimum Annual Rent as adjusted herein within
one hundred twenty days (120) prior to the expiration of the
Lease Term.
Section 2.02. Holding Over. If Tenant holds over and
remains in possession of the Leased Premises after the expiration
of the Lease Term, such holding over and continued possession
shall, if rent is paid by Tenant and accepted by Landlord, create
a tenancy from month to month upon the terms (other than length
of term) herein specified, which may at any time be terminated by
either party upon thirty (30) days written notice given to the
other party.
ARTICLE III
CONSTRUCTION OF IMPROVEMENT
Section 3.01. Landlord's Obligation for External Structure.
Landlord agrees that it will, at its own cost and expense,
construct the Leased Premises in substantial accordance with the
preliminary plans which have been submitted by Landlord to Tenant
for the construction of the "shell" of the Leased Premises.
Landlord shall provide Tenant with at least two weeks' written
notice of the Build-Out Date on which Tenant may commence its
interior work required under Section 3.02 hereof. Landlord shall
also construct, at Tenant's cost, Tenant's full service drive up
facility improvements. Notwithstanding anything herein to the
contrary, Tenant shall pay for, and shall not receive any
allowance from the Landlord with respect to, costs directly
related to the construction of a drive up facility, night
depository and ATM facilities, including canopy, curbing,
striping, drive up lanes, electrical, mechanical and drive up
hardware and variance costs with respect to the ATM facilities
(Tenant acknowledging that the location of the ATM machine may
have to be relocated if such variance is not granted): it is the
intention of the parties that the Landlord pay costs of
construction of the Leased Premises if the same was constructed
without a drive up facility, and that the Tenant pay all excess
costs caused by the construction of the drive up facility and ATM
facilities.
Section 3.02. Tenant's Obligations. Tenant shall undertake
completion of the Leased Premises, at Tenant's sole cost and
expense, except as provided herein, and by a contractor
satisfactory to Landlord, in accordance with (1) the outline
description set forth in the schedule entitled "Tenant's Work"
and attached hereto as Exhibit D and (ii) the plans and
specifications hereinafter referred to. Tenant agrees to submit
to Landlord for its approval, within thirty (30) days from the
date hereof, a bid price with complete plans and specifications
from a third party contractor including engineering, mechanical
and electrical work covering Tenant's Work as described in
Exhibit D in such detail as Landlord may reasonably require and
in compliance with all applicable statutes, ordinances,
regulations and codes, such plans and specifications shall be
paid for by the Tenant. If said plans and specifications are not
so submitted within said thirty (30) days, or if Landlord shall
determine that such plans and specifications are unacceptable and
Tenant does not satisfactorily resolve the deficiencies within 15
days after notice from Landlord, Landlord may terminate this
Lease. Unless extended by mutual agreement of the parties,
Tenant shall complete Tenant's work in a good and workmanlike
manner no later than sixty (60) days after the Build-Out Date.
In performing its work, Tenant shall not interfere with or delay
work performed by Landlord. Landlord shall have the right of
first refusal to perform the Tenant's Work by agreeing to do such
work at the same or less bid price provided by Tenant's third
party contractor, provided that Landlord may have additional
charges for any increased specifications or scope of work made by
Tenant. Landlord shall provide the Tenant with a Fifteen Dollar
($15.00) per square foot allowance to be paid by Landlord upon
completion of Tenant's Work, after inspection of such work by
Landlord and subject to completion of punchlist items as
determined by Landlord (in the event that Tenant's third party
contractor is used), and paid to the extent of the cost of such
work and Tenant shall pay Landlord for such work upon completion.
All of Tenant's trade fixtures and equipment installed in the
Leased Premises may be removed by Tenant upon expiration of the
term of this Lease, provided that (i) Tenant shall repair any
damage to the Leased Premises or the Shopping Center caused by
such removal, and (ii) all rents and other amounts then due and
payable hereunder are paid in full. After expiration of the
Lease Term, Landlord shall have the right to remove Tenant's
leasehold improvements, trade fixtures and equipment and to have
any damage from such removal repaired at Tenant's sole cost and
expense. Tenant's obligation to pay such expenses to Landlord
shall survive the expiration of the Lease Term.
Within thirty (30) days after the date Tenant opens the
Leased Premises for business, all costs and expenses of Tenant's
Work shall have been paid by Tenant (subject to Landlord's
reimbursement obligation), and Tenant shall have provided
Landlord with copies of executed lien waivers from all
contractors and suppliers furnishing labor or materials toward
the completion of Tenant's Work, provided, however, that Tenant
shall have the right to dispute any such costs and expenses
beyond the thirty (30) day period if Tenant furnishes Landlord or
any other entity designated by Landlord with a bond or other
assurances reasonably acceptable to Landlord that such costs and
expenses as finally determined will be paid by Tenant.
Section 3.O. Period Prior to Commencement Date. Except for
Landlord's gross negligence or willful misconduct, Landlord
shall have no responsibility or liability whatsoever for any loss
or damage to any of Tenant's leasehold improvements, fixtures,
equipment or merchandise installed or left in the Leased Premises
prior to the Commencement Date. Tenant's entry upon and
occupancy of the Leased Premises prior to the Commencement Date
shall be governed by and subject to the provisions, covenants and
conditions of this Lease with respect to insurance, indemnity,
remedies and mechanic's liens.
ARTICLE IV
RENT
Section 4.01. Minimum Rent. Tenant shall pay to Landlord as
minimum rent for the Leased Premises the following sums per year
("Minimum Annual Rent") in equal monthly installments ("Minimum
Monthly Rent"):
Period Following Rental Minimum Annual Minimum Monthly
Commencement Date Rent Rent
Year 1 $60,420 $5,035.00
Year 2 $60,420 $5,035.00
Year 3 $60,420 $5,035.00
Year 4 $62,320 $5,193.33
Year 5 $64,220 $5,351.66
Year 6 $66,120 $5,510.00
Year 7 $68,020 $5,668.33
Year 8 $69,920 $5,826.66
Year 9 $71,820 $5,985.00
Year 10 $73,720 $6,143.33
The Minimum Monthly Rent shall be payable in advance commencing
on the Rental Commencement Date and thereafter on the first day
of each calendar month during the Lease Term, without relief from
valuation or appraisement laws. If the Rental Commencement Date
is not the first day of a calendar month, Tenant shall pay on the
Rental Commencement Date a prorated portion of the Minimum
Monthly Rent for the first partial calendar month of the Lease
Term. Hereinafter, the term "Minimum Rent" shall refer to either
Minimum Annual Rent or Minimum Monthly Rent, as appropriate.
The Minimum Annual Rent for each Option Period shall
commence at the amount of the Minimum Annual Rent for the
immediately preceding Lease Year set forth in this Section 4.01,
plus $1,900 ($ .50 per square foot), and shall continue to be
increased at the rate of $1,900 per year. The Minimum Monthly
Rent shall be an amount equal to one-twelfth (1/12)
of the Minimum Annual Rent for the Option Period and shall be
paid at the same time and in the same manner as provided in the
Lease.
Section 4.02. Reimbursement of Expenses, etc. In addition
to the payment of Minimum Rent as provided in this Article IV,
Tenant shall pay to Landlord all other sums of money and charges
required to be paid by Tenant to Landlord under this Lease. If
any such sum or charge is not paid at the time provided in this
Lease, it shall nevertheless be collectible with the next
installment of Minimum Rent, provided that nothing contained
herein shall be deemed to suspend or delay the payment of such
sum or charge or to limit any remedy of Landlord in respect to
its nonpayment.
Section 4.03. Place of Payments. All payments required to
be paid and all statements or notices required to be rendered by
Tenant or Landlord shall be delivered to the other party at its
address set forth in Section 17.16 or to such other address as
Landlord or Tenant shall specify in accordance with such Section.
Section 4.04. Late Charges. In the event Tenant falls to
pay within ten (10) days after the same is due and payable any
installment of Minimum Annual Rent or any other sum or charge
required to be paid by Tenant to Landlord under this Lease,
Tenant shall pay a late charge of 10% of the unpaid amount. and
such unpaid amount shall bear interest from the due date thereof
to the date of payment at the rate of eighteen percent (18%) per
annum until paid. In the event such delinquency service charge
is due to Landlord, Tenant shall pay such charge to Landlord
along with and in addition to the next monthly payment of Rental.
ARTICLE V
COMMON AREAS
Section 5.01. Definition. As used in this Lease, "Common
Areas" are defined to mean all real estate shown in Exhibit A
together with improvements and other facilities located thereon
or appurtenant thereto designed for use in common by tenants of
the Shopping Center and their agents, employees, servants,
customers, invitees and licensees, with such facilities and
improvements including parking areas, ingress and egress access
roads, sanitary sewers and utility lines, walkways and sidewalks,
landscaped and planted areas and related facilities.
Section 5.02. Management of Common Areas. Landlord shall
operate, manage, equip, light, heat, cool, repair, clean,
maintain, and replace the Common Areas for their intended
purposes in such manner as Landlord in its reasonable discretion
shall determine, and the Common Areas shall at all times be
subject to the exclusive control and management of Landlord.
Landlord may at any time temporarily close all or any part of the
Common Areas to make repairs or changes and to perform such other
acts in or to the Common Areas as Landlord in its reasonable
discretion shall deem appropriate. Except as otherwise provided
herein if the amount or configuration of the Common Areas and any
other facilities not within the Leased Premises are changed or
diminished, Landlord shall not be subject to any liability; nor
shall Tenant be entitled to any compensation or diminution or
abatement of rent; nor shall such diminution of such areas be
deemed constructive or actual eviction. Landlord covenants that
Landlord shall maintain the Common Areas in a safe, clean and
orderly manner, and in a good state of repair, and shall keep the
Common Areas reasonably clear of snow and debris, and further,
Landlord shall provide proper supervision of the Common Areas, as
is necessary, and shall adequately illuminate the Common Areas
during business hours.
Section 5.03. Charges for Common Areas. Tenant shall pay to
Landlord Tenant's proportionate share of all costs and expenses
incurred by Landlord during the Lease Term in operating and
maintaining the Common Areas ('Common Areas Costs') as provided
in Article XIV. Subject to the limitations in Article XIV, the
Common Areas Costs shall include, but not be limited to, costs
and expenses paid or incurred for repairing, maintaining, and
operating improvements in the Common Areas such as paving, curbs,
walkways (including overhead walkways), storm and sanitary sewers
and lighting facilities, trash collection, utilities, security,
snow and ice removal, gardening and landscaping, striping of
parking areas, reasonable depreciation or amortization of, or
rents for, the improvement in or to the Common Areas and
equipment used in operation of Common Areas, wages, workmen's
compensation, unemployment taxes and Social Security taxes and a
management fee equal to five percent (5%) of gross rents due for
the Shopping Center.
Section 5.04. Employee Parking. If Landlord so designates,
Tenant and Tenant's employees shall park their cars only in those
portions of the parking areas designated for that purpose by
Landlord. Upon five (5) days prior written notice from Landlord,
Tenant shall provide Landlord with the automobile license numbers
of Tenant's employees.
ARTICLE VI
TAXES
Section 6.01. Taxes. Landlord will pay all Real Property
Taxes (as hereinafter defined) which may be levied or assessed by
any lawful authority against the land and improvements of the
Shopping Center. Tenant agrees to reimburse Landlord for its
proportionate share of such Real Property Taxes as provided in
Article XIV of this Lease. A tax xxxx submitted by Landlord to
Tenant shall be sufficient evidence of the amount of taxes
assessed or levied against the land and improvements of the
Shopping Center. For purposes of this Article, the term "Real
Property Taxes" shall include (i) the usual real property taxes;
(ii) any taxes which shall be levied in lieu of any such usual
real property taxes; (iii) any special assessments levied upon
the Shopping Center (except any payable in whole or in part
during the first year after the Shopping Center is completed and
assessed); and (iv) the expense of contesting the amount or
validity of any such taxes, charges or assessments, such expense
to be applicable to the period of the item contested.
Section 6.02. Substitute Tax. If due to a change in the
method of taxation, a tax and/or assessment upon or against the
rentals payable hereunder by Tenant to Landlord is imposed either
by way of substitution for the Real Property Taxes levied or
assessed against such land and such buildings, or in addition
thereto, or an income or franchise tax in substitution for the
Real Property Taxes levied against such land and buildings is
imposed, such taxes and/or assessments shall be deemed to
constitute a tax and/or assessment against such land and such
buildings and shall be included in the term Real Property Taxes
for the purpose of this Article VI.
Section 6.03. Taxes on Tenant's Business and Property.
Tenant shall pay and discharge when due all taxes and charges
imposed upon the conduct of its business in the Leased Premises
and all properly taxes imposed upon its fixtures, equipment,
merchandise, and other personal property on the Leased Premises.
ARTICLE VII
USE OF LEASED PREMISES
Section 7.01. Permissible Use. The Leased Premises shall
be continuously occupied and used solely for the purpose of
conducting the business of retail banking, of the same and for no
other purpose without Landlord's prior written consent.
Section 7.02. Opening for Business. Tenant shall proceed
with due diligence to open for business on the Leased Premises
within 30 days after the Rental Commencement Date, and shall
thereafter continuously, actively, and diligently operate its
business on the whole of the Leased Premises in a reputable
manner, maintaining in the Leased Premises a full staff of
employees during Regular Business Hours throughout the Lease Term
unless prevented from so doing by fire, strikes, or other
contingencies beyond Tenant's control. As used in this Lease,
the term "Regular Business Hours" shall mean the dates and hours
that Banks are customarily open for customer deposits and
withdrawals.
Section 7.03. Operation of Business. Tenant covenants and
agrees that:
(a) Tenant shall not conduct any auction, fire sale, or
bankruptcy sale on or about the Leased Premises without the
prior written consent of Landlord.
(b) Tenant shall not vacate or abandon the Leased Premises,
allow any waste, damage, floor overload or nuisance on the
Leased Premises, or use or permit the use of the Leased
Premises for any unlawful purpose;
(c) Tenant shall keep the Leased Premises in a careful, safe,
clean, and proper manner and condition in accordance with
all directions, rules, and regulations of the health, Fire,
building, and other offices and governmental agencies
having jurisdiction over the Leased Premises, and shall
comply with all laws, ordinances, rules, regulations,
orders, and decrees of any governmental entity or personnel
now or hereafter affecting or relating to the Leased
Premises or the use thereof.
(d) Tenant shall not display merchandise outside the Leased
Premises nor in any manner obstruct the sidewalks or other
areas adjacent to the Leased Premises nor burn or place
outside the Leased Premises garbage, trash, merchandise
containers, or other incidentals to Tenant's business;
(e) Tenant shall store all refuse in proper and fireproof
containers in areas which may be designated by Landlord.
(f) Tenant shall not use, or permit the use of loud speakers,
radios or other devices in a manner so as to be heard or
seen outside the Leased Premises without the prior written
consent of Landlord;
(g) Tenant shall load and unload all merchandise, supplies,
fixtures, equipment, and furniture and cause the collection
of rubbish only through such doors as may be designated by
Landlord:
(h) Tenant shall not place or permit to be placed or maintained
in or on any portion of the Shopping Center outside the
Leased Premises, including, but not limited to, any
exterior doors, walls, roof, or windows of the building
constituting part of the Leased Premises, any sign, awning,
or canopy or other advertising matter and shall not place
or permit to be placed or maintained any decoration,
lettering, or advertising maker on the glass or any window
or door of the Leased Premises without Landlord's prior
written approval, such approval being based on but not
limited to the items set forth in the Shopping Center Sign
Criteria set forth in the attached Exhibit "F" which is
incorporated herein by reference (the "Sign Criteria"); and
Tenant shall maintain any such approved signs, decorations,
lettering, or advertising matter in good condition,
appearance, and repair and in accordance with the Sign
Criteria at all times;
(i) Tenant shall refer to the Shopping Center building by name
in all advertising, stationery, and all other references to
its business location; and Tenant shall include the address
and identity of its business activity in the Leased
Premises in all advertisements made by Tenant in which the
address and identity of any other business activity of like
character conducted by Tenant within the Indianapolis
metropolitan area is mentioned;
Tenant shall comply with all other reasonable rules and
regulations established by Landlord from time to time with
regard to the operation of the Shopping Center;
(k) Tenant shall not use the plumbing facilities for any
purpose other than for which such facilities were
constructed, and no foreign substance of any kind shall be
placed therein, and the expense of any breakage, stoppage,
or damage resulting from a violation of this provision
shall be borne by Tenant;
(l) Tenant shall not make, paint, drill, or in any way deface any
walls, ceilings, partitions, floors, wood, stone, or
ironwork, without the written consent of the Landlord;
(m) Tenant shall not unreasonably interfere with the use of the
Common Areas by Landlord or others entitled to the use
thereof;
(n) Tenant shall neither solicit business in the Common Areas nor
distribute any handbills or other advertising matter in the
Common Areas;
(o) Tenant shall use its best efforts to cause its agents,
employees, customers, invitees, licensees, and
concessionaires to comply with the covenants and agreements
of this Section and with the reasonable rules and regulations
from time to time established by Landlord for the benefit of
the Shopping Center.
Section 7.04. Hazardous Substances. Tenant shall place no
underground storage tanks of any kind on the Leased Premises and
shall not place or use tanks, drums or other containers of any kind
on the Leased Premises, the contents of which are unknown to
Landlord and Tenant shall not engage in any activities involving
the use, treatment, transportation, generation, storage or disposal
of any Hazardous Substances in hazardous quantities and no
Hazardous Substances in hazardous quantities shall be released on
the Leased Premises by Tenant. The Term "Hazardous Substances"
means any hazardous or toxic substance regulated by any federal,
state or local statute or regulation, including but not limited to
the Comprehensive Environmental Response, Compensation and
Liability Act, the Resource Conservation and Recovery Act and the
Toxic Substance Control Act, or by any federal, state or local
governmental agencies having jurisdiction over the control of any
such substance including but not limited to the United States
Environmental Protection Agency.
ARTICLE VIII
UTILITIES, HEATING, AND COOLING
Section 8.01. Utilities. Utilities for the Leased Premises
shall be installed, maintained, and paid for as follows:
(a) Landlord shall bring to the Leased Premises utilities as
provided in Exhibit C attached hereto. Such installation
shall be at Landlord's sole cost and expense and in accordance
with Exhibit C. No later than five (5) days after the
Commencement Date, Tenant shall have utilities connected by
the applicable utility company and shall pay the usual and
customary activation fees for such utilities which shall be
separately metered to Tenant. Further, if Landlord determines
that Tenant is a substantial user of any utilities which are
not separately metered, Landlord may require Tenant to install
submeters for such utilities at its sole cost and expense.
(b) Landlord shall maintain all utility conduits, piping,
conductor, and the like which serve the Leased Premises and
which are located off the Leased Premises. Tenant shall pay
to Landlord Tenant's pro rata share of all costs and expenses,
except for the cost of installation, paid or incurred by
Landlord in maintaining such utilities off the Leased
Premises. as provided in Article XIV of this Lease.
(c) Commencing on the Commencement Date, Tenant, at Tenant's sole
cost and expense, shall maintain all utility conduits, piping,
conductors, and the like located on the Leased Premises and
shall pay for utilities as follows:
(i) Utilities which are metered or submetered at Leased
Premises shall be paid by Tenant on a usage basis
as metered, and
(ii) Utilities which are not metered or submetered at
the Leased Premises shall be paid by the Tenant on
a pro rata basis as specified in Article XIV of
this Lease.
Section 8.02. Discontinuance of Services. Landlord reserves
and shall at all times have the right to cut off and discontinue,
without notice to Tenant, water, electricity, heating and air
conditioning, or other utilities and services whenever Tenant has
failed to pay in accordance with the terms of this Lease any
amounts due by Tenant for rental or otherwise. Landlord shall
under no circumstances be liable to Tenant in damages or otherwise
for any interruption in service of water, electricity, heating, air
conditioning, or other utilities and services caused by an
unavoidable delay, by the making of any necessary repairs or
improvements, or by any cause beyond Landlord's reasonable control,
or by discontinuance as provided in the preceding sentence of this
Section.
ARTICLE IX
MAINTENANCE AND ALTERATIONS
Section 9.01. Landlord's Obligations. Landlord shall keep in
good repair the utility systems serving the Common Areas. Except
as provided in Section 8.01(b), Landlord shall not be responsible
for the maintenance, operation, or replacement of the heating and
air conditioning systems within the Leased Premises, the
maintenance, operation, and repair of which shall be the sole
responsibility of Tenant; provided, however, that if such systems
serve more than one tenant in the Shopping Center, Landlord shall
cause such maintenance, operation, and repair to occur and shall
xxxx each tenant served by such systems for their pro rata share of
the costs, which shall be paid as provided in Section 4.02.
Landlord shall also keep in good repair the foundation, structural
parts, outer walls (except the interior faces thereof), downspouts,
gutters, and roof of the building in which the Leased Premises are
located. Landlord shall not, however, be responsible for making
any such repairs occasioned by the willful or negligent act of
Tenant, its agent, employee, contractor, servant, customers,
invitee, licensee, assignee, lessee, or concessionaire, and Tenant
shall promptly make any such repairs at its sole cost and expense.
Landlord shall not be called upon to make any other improvements or
repairs of any kind upon the Leased Premises.
Section 9.02. Tenant's Obligations. Tenant shall not suffer
or permit any injury to the Leased Premises and, except as provided
in the foregoing Section 9.01, Tenant shall keep and
maintain the Leased Premises and every part therein (including, but
not limited to, the exterior and interior portions of all doors and
other entrances; door checks and closers; security gates; windows,
glass, signage, interior and exterior electrical, heating,
ventilating, air conditioning, plumbing, sewage, and other
mechanical and utility equipment and systems; fixtures; and
interior walls, floors and floor coverings, and ceiling) in good
order, condition, and repair. Without limiting the generality of
the foregoing, Tenant shall conduct a program of preventative
maintenance and repair of all electrical, heating, ventilating, air
conducting, plumbing, sewage, and other mechanical and utility
equipment and systems servicing the Leased Premises and shall be
responsible for any and all maintenance, replacement, or repairs to
such equipment and systems except as otherwise expressly provided
in foregoing Section 9.01. Tenant shall replace any glass and
windows and doors (including any frames, retaining members, and
appurtenances thereto) in the Leased Premises which may be broken
or damaged. Notwithstanding any provision herein to the contrary,
Tenant shall not be responsible for making any repairs occasioned
by any willful act or negligence of Landlord or its employees or
agents, which repairs shall be made by Landlord at its sole cost
and expense. Tenant shall immediately notify landlord of any
damage, injury, or disrepair of any part of the Leased Premises
known to Tenant.
Section 9.03. Alterations and Additions. Tenant shall make no
alterations or additions to any part of the Leased Premises without
the prior written consent of Landlord except the leasehold
improvements which Tenant is expressly entitled to make in
accordance with Section 3.02 herein. All such alterations and
additions to the Leased Premises shall be made in accordance with
all applicable laws, and shall remain for the benefit of Landlord,
provided, however, that Landlord may elect by written notice to
Tenant to require that Tenant, at its expense, remove on or before
fifteen (15) days after expiration or earlier termination of this
Lease all or a portion of the alternations or additions made by
Tenant and repair any damage to the Leased Premises caused by such
removal. Tenant's obligations under this Section shall survive the
expiration or earlier termination of this Lease.
Section 9.04. Mechanic's Liens. Tenant shall not suffer or
give cause for the filing of any mechanic's lien against the Leased
Premises. In the event any mechanic's lien is filed against the
Leased Premises or any part thereof for work claimed to have been
done for, or material claimed to have been furnished to the Tenant,
Tenant shall cause such mechanic's lien to be discharged of record
within forty (40) days after filing or, alternatively, Tenant shall
furnish to Landlord (or any other entity designated by Landlord)
within such forty (40) day period a bond or other assurances
reasonably acceptable to Landlord that such claimed indebtedness as
finally determined will be paid by Tenant. Tenant shall indemnify
and save harmless Landlord from all costs, losses, expenses, and
attorneys' fees in connection with any such mechanic's lien.
ARTICLE X
INDEMNIFICATION AND INSURANCE
Section 10.01. Indemnification. Subject to Section 10.07,
Tenant assumes all risks and responsibilities for accidents,
injuries, or damages to persons or property (other than as provided
in Section 10.02 with respect to damage by fire and casualty), and
agrees to indemnify and hold harmless Landlord from any and all
claims, liabilities, losses, costs, and expenses (including
attorneys' fees), arising from or in connection with the condition,
use or control by Tenant of the Leased Premises and any
improvements thereon during the Lease Term other than from causes
arising solely from Landlord's willful misconduct or gross
negligence. Subject to Section 10.07, Landlord agrees to indemnify
and hold Tenant harmless from any and all claims, liabilities,
losses, costs and expenses (including attorneys' fees), arising
from or in connection with the condition, use or control by the
Landlord of the Common Area during the Lease Term other than from
causes arising solely from Tenant's willful misconduct or gross
negligence.
Section 10.02. Insurance-Landlord. Landlord shall maintain
public liability insurance against damage to persons and property
in the Common Areas in amounts not less than Tenant is required to
maintain pursuant to Section 10.04 and shall agree to hold the
Tenant harmless for all liabilities covered by this insurance.
Landlord shall carry during the Lease Term fire and extended
coverage insurance on all buildings in the Shopping Center for at
least their full insurable value. Tenant shall not be liable to
Landlord for any damage by fire or other casualty with respect to
the Leased Premises and the Shopping Center, no matter how caused,
it being understood that Landlord will look solely to its insurers
for reimbursement of any losses required to be insured against
hereunder. Landlord shall also maintain business interruption
insurance and/or loss of "rental value" insurance in such amounts
as Landlord shall reasonably deem necessary. Tenant agrees to
reimburse Landlord for its proportionate share of the Insurance
Premiums for all such insurance, as provided in Article XIV.
Section 10.03. Increase in Insurance Rates. If Tenant uses or
permits the use of the Leased Premises or any part thereof in any
manner so as to increase the cost of insurance to Landlord over and
above the normal rates from time to time applicable to the Leased
Premises for use for the purpose permitted under this Lease, Tenant
shall pay to Landlord upon demand any such increase in the premiums
for such insurance whether or not Landlord has consented to such
use.
Section 10.04. Insurance-Tenant. Tenant shall, during the
Lease Term, keep in full force and effect policies of public
liability insurance (with contractual liability endorsement
covering the matters set forth in Section 10.01 above), in
companies and in a form acceptable to Landlord with respect to the
Leased Premises and the business operated by Tenant and/or any
subtenants of Tenant in the Leased Premises, in which both Landlord
and Tenant shall be named as parties covered thereby, and in which
limits of liability for injury or death to any one person shall be
in an amount of not less than One Million Dollars ($1,000,000.00),
and for injury or death of more than one person in any one accident
in an amount of not less than One Million Dollars ($1,000,000.00),
and for damage to property in an amount of not less than Two
Hundred Fifty Thousand Dollars ($250,000.00). Tenant shall, at its
own expense, also keep in full force and effect policies of plate
glass insurance, if plate glass is a part of Leased Premises, and
fire and extended coverage, vandalism, malicious mischief and
special extended coverage insurance in any amount adequate to cover
the cost or replacement of all alterations, changes, decorations,
additions, fixtures, and other improvements in the Leased Premises
in the event of a loss, in companies, and in form acceptable to
Landlord. The insurance which Tenant agrees to carry in this
Section shall insure the full insurable value of all such
improvements installed in the Leased Premises, on a reproduction
cost basis, whether the same have been paid for entirely or
partially by Tenant. Landlord and other tenants and occupants
shall not be liable for any damage by fire or other casualty with
respect to such improvements, no matter how caused, it being
understood that Tenant will look solely to its insurers for
reimbursement. All insurance provided by Tenant as required in
this Section 10.04 shall be carried in favor of Landlord and
Tenant, as their respective interests may appear. Tenant shall
upon request furnish Landlord with certificates of insurance, and
all such insurance shall carry a provision providing that it will
not be subject to cancellation, termination, or change except after
at least ten (10) days prior written notice to Landlord. If Tenant
fails to comply with the above requirements, Landlord may obtain
such insurance and keep same in effect, and Tenant shall pay
Landlord all premium costs thereof upon demand.
Section 10.05. Waiver of Claims. Landlord and Tenant shall
not be liable for, and each hereby waives all claims against the
other for, any injuries, damages (including, but not limited to,
consequential damages) or losses, of or to person, property, or
otherwise, sustained by Landlord and Tenant, provided, however,
that this shall not waive Landlord's or Tenant's claims for
contract damages resulting from breach of this Lease or pursuant to
their respective indemnifications of one another under Section
10.01 of this Article X.
Section 10.06. Tenant's Property. All property of Tenant kept
or stored in, upon, or about the Leased Premises shall be so kept
or stored at the sole risk of Tenant and Tenant shall hold Landlord
harmless from any claims, costs, or expenses, including attorney's
fees arising out of damage thereof, except for causes arising
solely from Landlord's willful misconduct or gross negligence.
Section 10.07. Waiver of Subrogation. In addition to any
other waiver herein, Landlord and Tenant each hereby waive any
claim against the other for any loss resulting from any cause,
including the negligence of the other, to the extent of the
insurance proceeds available therefore. All insurance policies
maintained by the Landlord or Tenant as provided in this Article X
shall contain an agreement by the insurer waiving the insurer's
right of subrogation against the other party to this Lease or
agreeing not to acquire any rights of recovery which the insured
has expressly waived prior to loss. Each of the parties hereto
agrees that if the provision waiving subrogation in any of such
policies of insurance requires that notice of such waiver be served
upon the insurer, such notice shall be promptly served by the party
obtaining such insurance.
ARTICLE XI
FIRE AND CASUALTY
If the Leased Premises become partially or totally destroyed
by fire or other casualty insurable under full standard extended
risk insurance, so as to become partially or totally untenantable,
the same shall be repaired or replaced at the expense of Landlord.
However, if more than fifty percent (50%) of the gross leasable
area of the building in which the Leased Premises are located shall
be destroyed or so damaged by fire or other casualty as to become
wholly untenantable, then Landlord may rebuild or put the building
in good condition and fit for occupancy within a reasonable time
after such destruction or damage, or it may give notice in writing
to Tenant terminating the Lease. Within sixty (60) days after such
casualty, Landlord shall either give Tenant notice of its intention
to repair or rebuild or shall give Tenant notice of its intention
to terminate the Lease. Any proceeds from the fire and extended
coverage insurance not utilized by Landlord in restoring the Leased
Premises shall be and remain the sole property of Landlord.
Minimum Rent shall proportionately xxxxx during the time that the
Leased Premises or any part are unusable by reason of any such
damage thereto.
ARTICLE XII
EMINENT DOMAIN
In the event that all or a part of the Leased Premises is
taken or condemned for public or quasi-public use under any statute
or by the right of eminent domain, or that, in lieu thereof, all or
a part of the Leased Premises is sold to a public or quasi-public
body under threat of condemnation, and such taking, condemnation,
or sale renders of the Leased Premises unsuitable for operation of
the Tenant's business therein, this Lease shall terminate on the
date possession of all or such part of the Leased Premises is
transferred to the condemning authority. All rent shall be paid up
to the date of transfer of possession to the condemning authority,
and all compensation awarded or paid for taking or sale in lieu
thereof shall belong to and be the sole property of Landlord, and
Tenant shall have no claim against Landlord for the value of any
unexpired portion of the Lease Term, provided, however, that Tenant
shall be entitled to any award expressly made to Tenant for
Tenant's interest in the Lease, loss of business, or depreciation
to and cost of removal of stock and fixtures so long as such award
shall not reduce the compensation paid or awarded to Landlord. In
the event that only a portion of the Leased Premises is taken or
condemned and such taking does not materially affect the business
of Tenant, Tenant shall be entitled to a proportionate abatement of
Minimum Rent but shall not be entitled to any award or payment made
for such taking.
ARTICLE XIII
DEFAULT AND REMEDIES
Section 13.01. Events of Default. Each of the following shall
be deemed a default by Tenant:
(a) Tenant's failure to pay rent (including Minimum Rent and
Additional Rent) as herein provided when due, and such failure
continues for more than five (5) days:
(b) Tenant's failure to perform or observe any other terms,
conditions, or covenants of this Lease to be performed or
observed by Tenant as and when performance or observance is
due, and such failure continues for more than thirty (30) days
after Landlord gives written notice thereof to Tenant;
(c) Any change or modification in the use of the Leased Premises
as set forth in Section 7.01 or any substantial change in the
quality or character of such use if such change adversely
affects the Shopping Center, as solely determined by Landlord
and such change or modification continues for a period of
thirty (30) days after Landlord gives written notice thereof
to Tenant;
(d) Tenant's vacation or abandonment of the Leased Premises or any
failure to keep the Leased Premises open for business as
provided in Section 7.02 (without limiting the meaning of the
terms "vacation or abandonment", the transfer of a substantial
part of the operations, business, and personnel of the Tenant
to some other location shall be deemed to be a breach of this
subsection, notwithstanding the fact that Tenant shall
thereafter continue to pay the rent due under this Lease) and
such vacation or abandonment continues for more than thirty
(30) days after Landlord gives written notice thereof to
Tenant;
(e) Tenant (i) files or consents by answer or otherwise to the
filing against it of a petition for relief or reorganization
or arrangement or any other petition in bankruptcy or
liquidation, or to take advantage of any bankruptcy or
insolvency law of any Jurisdiction, (ii) makes an assignment
of custodian, receiver, trustee or other officer with similar
powers of itself or of any substantial part of its property,
or (v) takes action for the purpose of any of the foregoing;
(f) A court or governmental authority of competent jurisdiction,
without consent by Tenant, enters an order appointing a
custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial
power of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other
petition in bankruptcy or insolvency law of any jurisdiction,
or ordering the dissolution, winding up or liquidation of
Tenant, or if any such petition is filed against Tenant and
such petition is not dismissed within sixty (60) days;
(g) This Lease or any estate of Tenant hereunder is levied upon
under any attachment or execution and such attachment or
execution is not vacated within sixty (60) days;
(h) Tenant assigns this Lease, except as otherwise permitted under
Article XVII, Section 17.02 of this Lease. Without Landlord's
prior written consent; or
(i) Dissolution or, if Tenant is a corporation. other termination
of Tenant's corporate or bank charter.
Section 13.02. Landlord's Rights Upon Tenant's Default. In
the event of any defaulted in the foregoing Section 13.01 without
any demand or notice, Landlord, in addition prove to any other
rights or remedies at law or in equity, may:
(a) elect to terminate this Lease;
(b) in the event that Tenant has failed to perform any of its
covenants under this Lease other than a covenant to pay rent,
perform the covenant or covenants of Tenant which are in
default (entering upon the Leased Premises for such purpose,
if necessary); and Landlord's performance of any such
covenant shall neither subject Landlord to liability for any
loss, inconvenience, or damage to Tenant nor be construed as
a waiver of Tenant's default or of any other right or remedy
of Landlord in respect of such default, or as waiver of any
covenant, term, or condition of this Lease; or
(c) immediately re-enter upon the Leased Premises, remove all
persons and property therefrom, and store such property in a
public warehouse or elsewhere at the sole cost and for the
account of Tenant, all without service of notice or resort to
legal process, without being deemed guilty of trespass or
becoming liable for any loss or damage which may be
occasioned thereby, and without such re-entry being deemed to
terminate this Lease.
Section 13.03. Re-Letting. In the event Landlord re-enters
upon the Leased Premises as provided in clause (c) or the foregoing
Section 13.02 or takes possession of the Leased Premises pursuant
to legal proceedings or pursuant to any notice provided for by law,
Landlord may either terminate this Lease, or from time to time
without terminating this Lease, make alternations and repairs
reasonably necessary for the purpose of re-letting the Leased
Premises and re-let the Leased Premises or any part thereof for
such term or terms (which may extend beyond the term of this Lease)
at such rental and upon such other terms and conditions as Landlord
in its reasonable discretion deems advisable. Upon each reletting,
all rentals received from such re-letting shall be applied first to
payment of costs of such alterations and repairs, second to the
payment of rent and any other indebtedness due and unpaid
hereunder; and the remainder, if any, shall be held by Landlord and
applied in payment of future rent as it becomes due and payable
hereunder. If the rentals received from such re-letting during any
month are less than amounts to be paid hereunder by Tenant during
that month, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No re-entry or
taking of possessions by Landlord of the Leased Premises shall be
construed as an election to terminate this Lease unless a written
notice of termination is given to Tenant. Notwithstanding any re-
letting without termination, Landlord may at any time thereafter
elect to terminate this Lease for Tenant's previous default.
Notwithstanding any other provisions contained in this Lease,
in the event the depository institution then operating on the
Leased Premises is closed, or is taken over by any depository
institution supervisory authority ("Authority"), Landlord may, in
either such event, terminate this Lease only with the concurrence
of any Receiver or Liquidator appointed by such Authority;
provided, that in the event this Lease is so terminated by the
Receiver or Liquidator, the maximum claim of Landlord for rent,
damages or indemnity for injury resulting from the termination,
rejection or abandonment of the unexpired Lease shall by law
in no event be in an amount equal to all accrued and unpaid rent to
the date of termination.
Section 13.04. Damages Upon Termination. In the event that
Landlord at any time terminates this Lease for any default by
Tenant, in addition to any other remedies Landlord may have,
Landlord may recover from Tenant all damages Landlord may incur by
reason of such default, including costs of recovering the Leased
Premises, reasonable attorneys' fees, and the value at the time of
such termination of the excess, if any, of the amount if rent and
charges equivalent to rent reserved in this Lease for the remainder
of the Leased Term over the then reasonable rental value of the
Leased Premises for the remainder of the Lease Term. All such
amounts shall be immediately due and payable by Tenant to Landlord.
In determining the rent which would be payable by Tenant subsequent
to default, the annual rental for each year of the unexpired
portion of the Lease Term to the time of default, or during the
preceding two (2) full calendar years, whichever period is shorter,
shall be used; provided, however, that Tenant shall not be required
to pay such average rent if it is required to pay twice the Minimum
Rent pursuant to Section 7.02 hereof.
Section 13.05. Indemnification Upon Default. In the event of
any breach hereunder by either Landlord or Tenant, the other party
may, after sixty (60) days' written notice to the defaulting party,
cure such breach for the account and at the expense of the
defaulting party. Any money spent or cost or expense incurred by
either party in curing such a breach or default for the account of
the other party shall be reimbursed to either Tenant or Landlord,
as the case may be, by the defaulting party on the first day of the
month following the payment of such money or the incurring of such
costs and expenses. In the event that Landlord fails to reimburse
Tenant for any such expenditure as and when provided herein, Tenant
may deduct such amounts from the rental payment or payments
thereafter due. Upon any default by Landlord or Tenant hereunder,
the defaulting party shall be liable for and hereby agrees to apply
any and all liabilities, losses, costs and expenses including
attorneys' fees incurred by the non defaulting party as a result of
such default and in exercising the non defaulting party's rights
and remedies in connection with such default.
Section 13.06. Remedies Cumulative. The remedies of Landlord
and Tenant hereunder shall be cumulative, and no one of them shall
be construed as exclusive or any other or of any remedy provided by
law or in equity. The exercise of any one such right or remedy by
the Landlord or Tenant shall not impair its standing to exercise
any other such right or remedy.
ARTICLE XIV
TENANT'S PAYMENT OF PRO RATA SHARE
Section 14.01. Tenant's Pro Rata Share. Tenant shall pay as
additional rent to Landlord, in the manner provided in Section
14.02 herein, Tenant's pro rata share (as defined in Section 14.02
herein) of all charges, liabilities, costs, and expenses of every
kind and nature paid or incurred (including appropriate reserves)
by Landlord during the Lease Term for each Year or Fractional Lease
Year which are attributable to or relate to the Shopping Center for
the following:
(a) Common Areas Costs, as described in Section 5.03;
(b) Real Property Taxes, as described in Article VI;
(c) Utilities, as described in Section 8.01;
(d) Insurance Premiums, as described in Section 10.02; and
(e) Maintenance and Repairs, as described in Section 9.01,
except for repair and maintenance of the foundation,
structural parts, outer walls and HVAC, plumbing and
sewage systems outside of the Leased Premises which shall
be at the expense of Landlord.
(items (a) through (e) hereinafter referred to in the aggregate as
"Operating Costs").
Notwithstanding any provision contained in this Article XIV,
or in this Lease, to the contrary, Operating Costs shall not
include the following, or the following shall be credits against or
deductions from Operating Costs, as the case may be:
(a) depreciation on the Shopping Center or any Common Areas;
(b) costs of capital improvements, except those:
(i) made to the Shopping Center by Landlord, after the
Commencement Date of this Lease, that produce a net
reduction in Operating Costs; or
(ii) made to the Shopping Center by Landlord primarily
to comply with any governmental law or regulation
that was not in force at the Commencement Date,
(c) costs of space planning, tenant improvements, marketing
expenses, finders fees and real estate broker
commissions;
(d) any and all expenses for which Landlord is reimbursed
(either by an insurer, condemnor or other person or
entity), but only to the extent of such reimbursement,
and any and all expenses for which Landlord is reimbursed
by a tenant in the Shopping Center pursuant to a lease
provision in such tenant's lease or as a result of any
act, omission, default or negligence of a tenant or as
the result of a breach by a tenant of the provision of
such tenant's lease;
(e) executive salaries or compensation:
(f) costs in connection with services or benefits of a type
which are not provided to Tenant, but are provided to
another tenant or occupant;
(g) xxxx-ups on electricity and condenser cooler water for
heat pumps in excess of Landlord's costs therefore;
(h) Landlord's general overhead and administrative expenses
not directly allocable to the operation of the Shopping
Center other than the management fee permitted herein;
(i) cost of repair or other work necessitated by the gross
negligence or willful misconduct of Landlord or
Landlord's employees, contractors or agents;
(j) gross revenues from charges, if any, made for the use of
the parking areas and other Common Areas or common
facilities of the Shopping Center;
(k) costs of repairs to the Shopping Center, or any part
thereof, resulting from defects in or inadequacy of the
initial design or construction of same, or resulting from
code violations or the payment of fines or citations in
connection therewith;
(l) costs of providing or performing improvements, work or
repairs to or within any portion of the Shopping Center
occupied by other tenants, or to be occupied by other
tenants, or which is/are not part of the Common Areas;
(m) any interest on any financing for the Shopping Center, or
interest and penalties incurred as a result of Landlord's
late payment of any xxxx;
(n) any bad debt loss, rent loss or reserve for bad debt or
rent loss;
(o) legal or other fees, audit fees, leasing commissions,
advertising expenses and other costs incurred in
connection with the original development or original
leasing of the Shopping Center or future re-leasing of
the Shopping Center as well as all other advertising and
promotional costs, disputes with other tenants and third
parties;
(p) costs of repairing or restoring any portion of the
Shopping Center damaged or destroyed by any casualty or
peril whether insured, uninsured or uninsurable; or
(q) costs in connection with the clean-up or removal of
hazardous materials, unless the need for such clean-up or
removal is caused by Tenant.
Section 14.02. Calculation and Payment. Tenant's pro-rata
share of the Operating Costs shall be that portion of such
Operating Costs which the Gross Leasable Area of the Leased
Premises bears to the total gross leasable area in the Shopping
Center. Tenant shall pay on a monthly basis its pro rata share of
the Operating Costs for each Lease Year or Fractional Lease Year
during, the calendar month, in advance, in any amount estimated by
the Landlord as provided in this Section. Landlord's estimate
shall be made on the basis of the most recent Annual Operating Cost
Statement, if available, adjusted to reflect reasonably anticipated
increases or decreases of Operating Costs. An Annual Operation
Cost Statement prepared by Landlord in accordance with generally
accepted accounting principles shall be provided by Landlord to
Tenant not later than March 1 of each calendar year setting forth
in reasonable detail the actual Operating Costs paid or incurred by
Landlord in the next preceding twelve-month period ending December
31 and thereupon there shall be an adjustment between Landlord and
Tenant with Tenant's payment to Landlord or repayment by Landlord
as may be required to the end that Landlord shall receive the
entire amount of Tenant's pro rata share of such Operating Costs
and not more. The dates of any such statements may, at the option
of the Landlord, be subject to change. If Tenant does not agree
with Landlord's statement of Additional Rent, then Tenant shall
have the right, if written notice of the nature and extent of such
disagreement is given to Landlord not later than thirty (30) days
following receipt of such statement by Tenant, and Landlord and
Tenant are unable to resolve such disagreement by negotiation, to
cause an audit to be made of Landlord's records concerning
Operating Expenses by an independent certified public accountant
designated by Landlord from a list of not less than three (3) such
accountants provided by Tenant, as the expense of Tenant, unless
such audit discloses an error in excess of ten percent (10%) in the
computation of Additional Rent, in which event such audit shall be
at the expense of Landlord. The results of such audit shall be
binding upon Landlord and Tenant. If no such notice is received by
Landlord within thirty (30) days following receipt of a statement
of Additional Rent by Tenant, then such statement shall be
conclusively deemed to have been approved and accepted by Tenant.
Pending resolution of any dispute with respect to statements and,
if it shall be finally determined that any portion of such sums was
not properly due, Landlord shall immediately refund the appropriate
sum to Tenant.
ARTICLE XV
ACCESS TO LEASED PREMISES
Tenant shall permit Landlord, or Landlord's agents, to enter
upon the Leased Premises at reasonable times during Tenant's
business hours and upon reasonable advance notice of at least
twenty-four (24) hours for purposes of inspecting the Leased
Premises or performing any services required of Landlord hereunder
or for purposes of showing the Leased Premises to potential and/or
existing mortgagees, purchasers and prospective tenants. The
foregoing notwithstanding, Landlord is not required to give notice
to Tenant in the event Landlord must enter the Leased Premises
because of emergency circumstances. In the exercise of its rights
hereunder, Landlord shall (i) minimize disruption to or
interference with Tenant's permitted use of the Leased Premises and
(ii) maintain the confidentiality of Tenant's books. records and
information located on or within the Leased Premises and Tenant's
relationship with Tenant's employees, clients and customers.
Landlord, or Landlord's agents, shall exercise Landlord's rights
hereunder only when accompanied by an agent of Tenant.
ARTICLE XVI
LIMITATION OF LANDLORD'S LIABILITY
Tenant agrees that Tenant shall look solely to Landlord's
interests in and to the Shopping Center, subject to prior rights of
any mortgagee of the Shopping Center, for solicitation of any
judgment (or other judicial process) requiring payment of money by
Landlord in the event of default or breach by Landlord of any of
the covenants, terms or conditions of this Lease to be observed or
performed by Landlord, and that no other assets of Landlord shall
be subject to levy, execution, or of the process for satisfaction
of Tenant's remedies. The term "Landlord", as used in this Lease
in relation to covenants, agreements, and conditions to be observed
and performed by Landlord, shall be limited to mean and include
only the owner or owners from time to time of Landlord's interest
in this Lease. In the event of any transfer or transfers of such
interest (except a transfer for security), Landlord named herein
(or the transferor, in the case of a subsequent transfer) shall,
after the date of such transfer, be released from all personal
liability for performance of any covenant, agreement, and
conditions shall bind Landlord, its successors and assigns, only
during and in respect of their respective successive periods of
ownership.
ARTICLE XVII
MISCELLANEOUS
Section 17.01. Security Deposit and Security Interest. Tenant
shall, upon execution of this Lease, deposit with Landlord a
security deposit of $5,035. Landlord shall not be liable for any
interest on the Security Deposit which is made to secure the
performance by Tenant of the terms and covenants of their Lease.
Landlord may apply this security deposit in whole or in part to any
past due rent or to defray any moving damage or loss sustained by
Landlord as a result of a breach of this Lease by Tenant. To the
extent used the security deposit must be replenished by Tenant upon
demand. To the extent not used by Landlord the security deposit
will be returned to Tenant following termination of the Lease.
Landlord may deliver the security deposit to any purchaser or other
transferor of the Shopping Center thereupon shall be released from
further obligations with respects to such deposit. Landlord shall
not be required to hold the security deposit in a separate account
but may coincide it with Landlord's other funds.
Section 17.02. Assignment and Subletting. Tenant shall not
assign this Lease or sublet the whole or any part of the Leased
Premises, or permit any other persons. including concessionaires or
licensees, to occupy the same without the prior written consent of
Landlord. Such consent shall not be implied from references in
this Lease to assignees, sublessees, concessionaires, or licensees.
The consent by Landlord to any assignment or subletting shall not
constitute a waiver of the requirement for such consent to any
subsequent assignment or subletting. Any such assignment or
subletting, even with the consent of Landlord, shall not relieve
Tenant from liability for payment of rent or other sums herein
provided or from the performance of any other obligations under
this Lease. The acceptance of rent from any other person shall not
be deemed to be a waiver of any of the provisions of this Lease or
to be a consent to the assignment of this Lease or the subletting
of the Leased Premises. Any transfer of this Lease by operation of
law (including, but not limited to, a transfer as a result of a
merger, consolidation, or liquidation of Tenant if Tenant is a
corporation) shall constitute an assignment for purposes of this
Lease. Notwithstanding the foregoing, Tenant shall be entitled to
transfer and assign this Lease to its wholly-owned subsidiary,
Heartland Community Bank, so long as such bank has a minimum
capital of $7,500,000 and executes assumption documents acceptable
to Landlord. In such event, Heartland Bancshares, Inc. shall be
released from this Lease.
An assignment, in the case of a corporation. shall be deemed
to include any sale or transfer, whether by operation of law or
otherwise, of greater than thirty percent (30%) of the outstanding
shares of the corporation or in the event the present shareholder
shall, singly or collectively, cease to own, directly or
indirectly, the controlling interest in the voting shares of
Tenant. An assignment in the case of a partnership shall be deemed
to include any sale, transfer, assignment, or pledge which has the
effect that the present partners shall, singly or collectively,
cease to own, directly or indirectly, the controlling interest or
a majority of the partnership Interests in Tenant.
Without in any way limiting Landlord's right to refuse to give
consent to any assignment of subletting of this Lease, Landlord
reserves the right to refuse to give such consent if in Landlord's
discretion and opinion the proposed use of the Leased Premises or
quality of merchandising operation in the Leased Premises is or may
be in any way adversely affected, or if the financial worth of the
proposed next occupant is less than that of Tenant. Tenant agrees
to reimburse Landlord for reasonable accounting and attorneys' fees
incurred in conjunction with the processing and documentation of
any such requested transfer, assignment, subletting, licensing, or
concession agreement, change of ownership or hypothecation of this
Lease or Tenant's interest in and to the Leased Premises.
Section 17.03. Estoppel Certificates. Prior to opening the
Leased Premises for business, Tenant shall deliver to Landlord a
written statement in recordable form certifying (if such is the
case) that Landlord has completed construction of the improvements
constituting part of the Leased Premises in accordance with its
obligations contained herein, that Tenant has accepted possession
of the Leased Premises, that this Lease is in full force and effect
and has not been assigned, modified, supplemented, or amended, and
indicating the Commencement Date and the dates to which the Minimum
Rent and other charges have been paid in advance, if any. At any
time and from time to time, Tenant agrees, within ten (10)
days of any request in writing from Landlord, to execute,
acknowledge, and deliver to Landlord a statement in writing
certifying, if this be the fact, that this lease is unmodified, in
full force and effect, and there are no defenses or offsets thereto
(or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications) and the
dates to which the Minimum Rent and any other additional rentals
have been paid.
Section 17.04. Subordination and Attornment. Tenant shall
upon Landlord's request subordinate this Lease to the lien of any
mortgage now or hereafter placed upon Landlord's interest in the
Leased Premises are a pan or upon any buildings hereafter placed
upon the land of which the Leased Premises form a pan. In
addition, upon the request of Landlord, Tenant will subordinate its
rights hereunder to the lien of any mortgage or mortgages or the
lien or security interest from any other method of financing or
refinancing (hereafter collectively referred to as "Mortgage") now
or hereafter against the land, Landlord's interest therein, or the
Leased Premises and the buildings now or thereafter built or to be
built in the Shopping Center, and to all renewals, modifications,
replacements, consolidations, and extensions thereof. Tenant shall
execute and deliver, upon demand, such further instrument or
instruments subordinating this Lease to the lien of any such
Mortgage provided any subordinating shall be upon the express
condition that this Lease and any extension or renewal thereof
shall remain in full force and effect during the term of the Lease,
notwithstanding any default in the payment and performance of such
mortgage and notwithstanding any foreclosure proceedings with
respects hereto, providing however, that Tenant shall perform all
of the terms, covenants, and conditions of this Lease by it
undertaken to be performed. Tenant shall, in the event that any
proceedings are brought for the foreclosure of any Mortgage made by
Landlord covering that Leased Premises, attorn to the purchaser
upon such foreclosure and recognize such purchaser as landlord
under this Lease; provided, however, notwithstanding the foregoing
language in this Section 17.04, if the holder of any such
mortgage(s) shall take title to the Leased Premises through
foreclosure of any such mortgage(s) or deed in lieu of foreclosure,
Tenant's use, possession and enjoyment of the premises shall not be
disturbed, and this Lease shall continue in full force and effect
as long as Tenant is not in default, and this I.ease shall
automatically become a lease directly between any successor to
Landlord's interest, as landlord and tenant.
Section 17.05. Covenant of Quiet Enjoyment. Landlord agrees
that if Tenant performs all the covenants and agreements herein
provided to be performed by Tenant, Tenant shall, at all times
during the Lease Term, have the peaceable and quiet enjoyment of
possession of the Leased Premises without any manner of hindrance
from Landlord or any persons claiming under Landlord. This Lease
does not guarantee a continuance of light and air over the Leased
Premises or any property adjoining the Leased Premises.
Section 17.06. Accord and Satisfaction. No payment by Tenant
or receipt by Landlord of a lesser amount than the rent herein
stipulated shall be deemed to be other than on account of the
earliest stipulated rent; nor shall any endorsement or statement on
the check or letter accompanying any check or payment as rent be
deemed an accord and satisfaction, and Landlord may accept any such
check or payment without prejudice to Landlord's right to recover
the balance of such rent or to pursue any other remedy provided in
this Lease.
Section 17.07. No Option. The submission of this Lease for
examination by Tenant shall not constitute a reservation of or
option for the Leased Premises. This Lease shall become effective
as Lease only upon execution and delivery thereof by Landlord and
Tenant.
Section 17.08. Memorandum of Lease. All parties hereto shall
not record this Lease, but each party shall execute upon request of
the other a "Memorandum of Lease" suitable for recording.
Section 17.09. Relationship of Parties. Nothing contained
herein, including, but not limited to, the method of computing
rent, shall be deemed or construed by the parties hereto, or by any
third party, as creating between the parties hereto the
relationship of principal an agent, partnership, joint venture, or
any relationship other than the relationship of landlord and
tenant.
Section 17.10. Waivers. No waivers of any covenant or
condition or the breach of any covenant or condition of this Lease
shall be deemed to constitute a waiver of any subsequent breach of
such covenant or condition, nor justify or authorize a non-
observance upon any occasion of such covenant or condition or any
other covenant or condition, nor shall the acceptance of rent by
Landlord at any time when Tenant is in default of any covenant or
condition be construed as a waiver of such default or Landlord's
right to terminate this Lease on account of such default.
Section 17.11. Severability. The invalidity or
unenforceability of any particular provision of this Lease shall
not affect the other provisions, and this Lease shall be construed
in all respects as if such invalid or unenforceable provision had
not been contained herein.
Section 17.12. Benefit of Persons Affected. This Lease and
all of the terms and provisions hereof shall inure to the benefit
of and be binding upon, the respective heirs, executors,
administrators, successors and assigns of Landlord and Tenant
except as otherwise expressly provided herein.
Section 17.13. Construction. This Lease shall be governed in
accordance with the laws of the State of Indiana. Whenever in this
Lease a singular word is used, it shall also include the plural
wherever required by the contract and vice versa. All references
in this Lease to periods of days shall be construed to refer to
calendar, not business, days. The captions in this Lease are for
convenience only and do not in any way limit or amplify the terms
and provisions of this Lease. Any exhibits hereto are incorporated
by reference and made a part hereof with the same effect as if set
out in full herein.
Section 17.14. Entire Agreement, Amendments. This instrument
contains the entire agreement between the parties hereto with
respect to the subject matter hereof. All representations,
promises and prior or contemporaneous undertakings between such
parties are merged into and expressed in this instrument, and any
and all prior agreements between such parties are hereby canceled.
The agreements contained in this instrument shall not be amended,
modified, or supplemented except by a written agreement duly
executed by both Landlord and Tenant.
Section 17.15. Notices. Any notice, demand, consent or waiver
required or permitted to be given or served by either party to this
Lease shall be in writing and shall be deemed to have been duly
cloven if delivered in person or sent by United States certified or
registered mail, return receipt requested, addressed to the other
party as follows:
Landlord: Xxxx Xxxxx and Associates
0000 Xxxx Xxxxx Xxxxxx Xx. Xxxxx X-0
Xxxxxxxxx, XX 00000
Tenant: Heartland Bancshares, Inc.
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Any party may change its address for notice from time to time by
serving notice on the other party as provided above. The date of
service of any notice served by mail shall be the date upon which
such notice is deposited in a post office of the United States
Postal Service.
Section 17.16. Counterparts. This Lease may be executed in
separate counterparts, each of which when so executed shall be an
original, but all of such counterparts shall together constitute
one and the same instrument.
Section 17.17. Broker. Tenant covenants, warrants and
represents that no broker, was instrumental in bringing about or
consummating this Lease and that Tenant had no conversations or
negotiations with any broker, except concerning the leasing of the
Leased Premises. Tenant agrees to indemnify and hold harmless
Landlord against and from any claims for any brokerage commissions
and all costs, expenses and liabilities in connection therewith
including, without limitation, attorneys' fees and expenses arising
out of any conversations or negotiations had by Tenant with any
broker
Section 17.18. Canopy Sign. Tenant shall install a sign
acceptable to Landlord on the front of the Leased Premises and the
south side of the Leased Premises, neither sign to exceed 26 feet
in length, prior to opening for business. Tenant will not erect
any signs except in conformity with the Shopping Center Sign
Criteria set forth in the attached Exhibit "_____".
IN WITNESS WHEREOF, the parties have executed this Lease as of
the day and year first above written.
J. XXXX XXXXX d/b/a/
J. XXXX XXXXX & ASSOC.
BY: /s/ J. Xxxxx Xxxxx
J. XXXX XXXXX
'Landlord"
HEARTLAND BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
"Tenant"
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXXX )
Before me, a Notary Public in and for said County and State,
personally appeared J. Xxxx Xxxxx, d/b/a Xxxx Xxxxx & Assoc., who
acknowledged the execution of the foregoing Lease, and who, having
been duly sworn, stated that any representations contained therein
are true.
Witness my hand and Notarial Seal this 6th day of Sept., 1997.
My Commission Expires: /s/ Xxxxxxx X. Xxxxxxx
Notary Public
Printed: XXXXXXX X. XXXXXXX
10-28-97 Resident of Xxxxxxx County
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXXX )
Before me, a Notary Public in and for said County and State,
personally appeared Xxxxxx X. Xxxxxxx, the President of Heartland
Bancshares, who acknowledged the execution of the foregoing Lease
for and on behalf of said Heartland Bancshares, and who, having
been duly sworn, stated that any representations contained therein
are true.
Witness my hand and Notarial Seal this 6th day of Sept., 1997.
My Commission Expires: /s/ Xxxxxxx X. Xxxxxxx
Notary Public
Printed: XXXXXXX X. XXXXXXX
10-28-97 Resident of Xxxxxxx County
[EXHIBITS OMITTED]
3035\XXXXX\LEASE10.5
