EXHIBIT 10.11
COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT ("Lease Agreement") is made this 20th day
of February, 2002, by and between Commercial 100, L.L.C.; (hereinafter referred
to as "Lessor"), and First Bank, Inc., (hereinafter referred to as "Lessee").
W I T N E S S E T H:
1. Premises. In consideration of the rent and the Lessee's covenants
hereinafter contained, the Lessor leases to the Lessee the property and
improvements in Nashville, Indiana more particularly described in Exhibit "A"
attached hereto and commonly known as 000 Xxxxxxxxxx Xxxxx.
The premises leased hereunder include any parking lot adjacent to the
above-described building. Said premises as described above shall be hereinafter
referred to as "Leased Premises."
2. Original Term. The original term of this Lease shall be for a period
of five (5) years beginning on December 1, 2001 and ending on November 30, 2006.
3. Option & Option Term Rent.
a. Option. Provided Lessee is not in default hereunder, Lessee shall
have the right to extend the term hereof for one (1) period of five
(5) years, subject to the terms, covenants and provisions of this
Lease except for rent. The term of this Lease shall be extended if
notice is given by Lessee to Lessor of the exercise of the option at
least six (6) months prior to the expiration of the term of the Lease.
b. Option Term Rent. If the option is exercised, rent shall be
increased as determined by use of the U.S. Bureau of Labor Statistics,
Consumer Price Index for All Urban Consumers (CPI-U), U.S. City
Average, or a similar type index if the CPI-U is not maintained. The
increase shall be based on the index difference between the base year
(December 1, 2001) and the index as of the last year of the lease term
(November 30, 2006). For example, if the base year index is 180 and at
the end of the least term the index is 183, the increase in the index
is 3.0. Rent for the option term shall be calculated by multiplying
the base year rent ($4,250.00) by 103% or $4,377.50 per month. In no
event shall the rent decrease below $4,700.00 per month should the
index difference evidence a decrease.
4. Rent & Security Deposits.
a. Rent Payee. Rent checks shall be mailed to Lessor at X.X. Xxx 000,
Xxxxxxxxx, Xxxxxxx 00000-0000 until Lessee is otherwise notified in
writing.
1 of 15
b. Basic Rent - Original Term. The Lessee agrees to pay to the Lessor
rent for the Leased Premises of Four Thousand Two Hundred Fifty
Dollars ($4,250.00) per month. The rent shall be paid monthly in
advance on the first day of each calendar month during the term of
this Lease.
c. Security Deposit. Lessor acknowledges receipt of Four Thousand Two
Hundred Fifty Dollars ($4,250.00) as a security deposit for the
faithful performance by Lessee of Lessee's obligations under this
lease. The deposit shall not be considered payment of rent but shall
be applied to any loss, breakage, damage or cleaning expenses incurred
by Lessor, and the balance remaining, if any, shall be returned to
Lessee within forty-five (45) days of the termination of the lease,
provided that all other terms and conditions of this Lease have been
complied with and all rental has been paid. If all rental has not been
paid or if Lessee has not complied with the other terms and
conditions, Lessor may retain the security deposit and apply it
against accrued and unpaid rent or damages incurred or to be incurred
by Lessor.
d. Maintenance Fee. Lessee, in addition to the basic rent, shall pay
to Lessor Four Hundred Fifty Dollars ($450.00) per month for Lessor's
maintenance of the parking lot and grounds.
5. Inspection, Repairs and Casualty Loss.
a. Inspection. Lessor shall have the right to enter upon the Leased
Premises for the purpose of inspection or for making such
improvements, repairs, and alterations as it may deem expedient; but
the Lessor assumes no obligation to make any improvements, repairs or
alterations except to the extent elsewhere expressly provided in this
lease; Lessor shall accommodate the Lessee's use of the Leased
Premises in scheduling any inspections, repairs or improvements.
b. Maintenance by Lessee. Lessee, at Lessee's own cost and expense at
all times during the term of this Lease, agrees to keep and maintain
or cause to be kept and maintained, including any required pest
control, the interior of the improvements situated upon the Leased
Premises, including all equipment or appliances, in a good state of
appearance and repair, excepting casualty loss as defined herein, and
reasonable wear and tear. Lessee shall maintain all windows, doors,
and the interior to the Leased Premises, including but not limited to,
the plumbing, heating, air-conditioning, and sprinkler systems for the
Leased Premises, in the same good repair, order and condition as they
now are or as they may be put during the term of this Lease, excepting
casualty loss as defined in this Lease, reasonable use, ordinary wear
and tear and the effect of time. However, Lessee shall make no repairs
in excess of Five Hundred Dollars ($500.00) to the Leased Premises
without the express written approval of Lessor. Should Lessee fail to
make such repairs, improvements or alterations, replacements or
renewals, or any other item of reasonable maintenance, Lessor may make
them and the
2 of 15
amounts expended therefor shall be deemed additional rent due from
Lessee with the next monthly installment of rent accruing hereunder.
c. Lessee's Alterations. Lessee may make at its sole expense such
alterations in and to the Leased Premises and the buildings thereon as
it may deem desirable for its own use, provided that Lessee first
receives written approval of the alterations from Lessor. All
alterations shall be of at least equal quality as the original
construction. Lessor agrees that upon termination of this Lease or any
renewal thereof Lessee shall leave such alterations.
d. Maintenance by Lessor. Lessor agrees to make all necessary repairs
to the roof, exterior of the improvements, and the foundation herein
leased at its own expense; however, such repairs as may be needed
shall first be called to the attention of Lessor in writing before
said obligation to repair shall be enforceable or effective. Lessor
shall be responsible for ice and snow from sidewalks and the parking
lot on the Leased Premises. Lessor shall maintain all landscaping and
green areas on the Lease Premises.
e. Signs. Lessee shall not affix anything to the exterior of the
building or install any additional signage on the premises without the
prior approval of the Lessor. All signage shall comply with local laws
and regulations.
f. Casualty Loss. If the Leased Premises, by fire, flood, explosion,
public enemy, riot, civil commotion, act of God, or other casualty
covered by insurance during the term, shall be damaged or destroyed,
Lessee shall restore promptly the Leased Premises, at its sole
expense, to the condition prior to such damage or destruction. In such
event, there shall be a proportionate abatement of the rent for so
much of the Leased Premises as may be untenantable during the period
of repair and restoration. All insurance proceeds received by Lessee
pursuant to the provision of this Lease, less the cost, if any, of
such recovery, shall be held in trust and applied by Lessee to the
payment of such restoration as such restoration progresses, subject to
the rights of any mortgagee to such proceeds. If the proceeds of
insurance are insufficient to pay the full costs of repair or
restoration, Lessee shall pay the deficiency. If the insurance
proceeds exceed such cost, the excess shall be paid to the Lessee.
If such casualty loss as defined in this section occurs and
renders the Leased Premises untenantable, rent shall xxxxx beginning
the first day of the month following the date the Leased Premises
become untenantable. Rent abatement shall continue until the Leased
Premises are restored and Lessee recommences business from the Leased
Premises. In the event the Leased Premises cannot be restored within
two hundred seventy (270) days, Lessor or Lessee may terminate the
Lease upon written notice given within two hundred seventy (270) days
after such occurrence; and in such event, the rent shall be
apportioned and abated to such date of termination. All insurance
proceeds
3 of 15
payable as a result of such casualty loss, and which would have been
available to rebuild or to repair the Leased Premises, shall be paid
to Lessor. The opinion of a registered architect or engineer selected
by Lessor and Lessee as to whether such damage can be repaired within
two hundred seventy (270) days after the date of the occurrence of
such damage shall be controlling.
6. Taxes and Utilities.
a. Taxes. Lessee agrees to pay all real property taxes on the Leased
Premises which become payable during the Lease term for the period of
Lessee's occupancy. Lessee agrees to pay all taxes on personal
property owned by Lessee and located on the Leased Premises, levied or
assessed during the lease year or any extension thereof. Special taxes
or assessments, including street improvement liens, if any, shall also
be paid by Lessee.
In the event any special tax or assessment is levied or assessed
on the Leased Premises which becomes due and payable during the Lease
term, or any extension, which tax or assessment may be legally paid in
installments (whether by subjecting the Leased Premises in bond or
otherwise), Lessee shall have the option to pay such tax or assessment
in installments. In the event of such election, Lessee shall be liable
only for those installments of such tax or assessment which become due
and payable during the Lease term, or any extension. Lessor agrees to
execute or join with Lessee in execution of any application or other
instrument that may be necessary to permit the payment of such special
tax or assessment in installments.
Lessee shall have the right to contest the amount or validity of
any such tax by appropriate legal proceedings. Lessor shall, upon
request, join in any such proceedings if Lessee determines that it
shall be necessary or convenient for Lessor to do so in order for
Lessee to prosecute such proceedings properly. If Lessor is joined,
Lessee agrees to pay all expenses incurred by Lessor's involvement in
such proceedings including reasonable attorney fees.
b. Utilities. Lessee agrees to pay for all utilities used upon or in
connection with the Leased Premises throughout the term of the Lease,
including any connection fees.
7. Use of Premises. The Leased Premises shall be used and occupied by
Lessee for the a bank. No waste or damage shall be committed upon or to the
Leased Premises except for normal wear and tear.
Lessee of said Leased Premises must at all times keep the Leased Premises,
and the improvements and appurtenances therein, except as otherwise stated
herein, in a safe, clean, wholesome, and sanitary condition, and comply in all
respects with all government, health, and police requirements; and said Lessee
will remove or cause to be removed any rubbish of any
4 of 15
character whatsoever which may accumulate on said Leased Premises.
8. Mechanic's Liens. Lessee shall not suffer or permit any mechanic's liens
or any other liens to be filed against the fee of the Leased Premises, nor
against Lessee's interest in the land, nor any building or improvements on the
Leased Premises by reason of any work, labor, services, or materials supplied or
claimed to have been supplied to Lessee or anyone holding the Leased Premises or
any part thereof through or under Lessee. If any such mechanic's liens or
materialman's liens shall be recorded against the Leased Premises, or any
improvements thereof, Lessee shall cause the same to be removed or, and in the
alternative, if Lessee in good faith desires to contest the same, Lessee shall
be privileged to do so, but in such case Lessee hereby agrees to indemnify and
save Lessor harmless from all liability for damages occasioned thereby and
shall, in the event of a judgment of foreclosure upon said mechanic's liens,
cause the same to be discharged and removed prior to the execution of such
judgment.
9. Condemnation. In the event the Leased Premises or any part thereof shall
be taken for public purposes by condemnation as a result of any action or
proceeding in eminent domain, or shall be transferred in lieu of condemnation to
any authority entitled to exercise the power of eminent domain, the interests of
Lessor and Lessee in the award or consideration for such transfer and the effect
of the taking of the transfer upon this Lease shall be as provided by this
article.
In the event that twenty-five percent (25%) or more of the square footage
of the improvements constructed on the real estate, or in the event that
twenty-five percent (25%) or more of the area of the Leased Premises dedicated
for parking are taken or so transferred, this Lease and all the right, title,
and interest thereunder shall cease on the date title to such land so taken or
transferred vests in the condemning authority, and the proceeds of such
condemnation shall belong exclusively to the Lessor except those proceeds
specifically allocated by the condemning authority to Lessee's trade fixtures,
leasehold interest, or relocation expenses. In the event of condemnation of the
parking area as described herein, Lessor reserves the right to provide
substitute parking at other locations on the real estate comprising a part of
the Leased Premises or on lot or lots adjacent to the Leased Premises and
contiguous to the Leased Premises except for an intervening access road, and in
such event, this Lease shall not terminate but shall continue in full force and
effect subject to the modification as provided in this Section 9.
In the event of such taking or transfer of only a part of the Leased
Premises, leaving the remainder of the Leased Premises in such location and in
such form, shape, or size as to be used effectively and practicably for the
purpose of operation thereon of Lessee's business, this Lease shall terminate
and end as to the portion of the Leased Premises so taken or transferred only.
In the event there is a dispute or disagreement between Lessor and Lessee
whether the remainder of the Leased Premises can be effectively and practicably
used for the purpose of operation of Lessee's business, Lessor and Lessee agree
to submit this dispute to binding arbitration. Any awards made by any public
authority as a result of such partial taking shall belong to the Lessor, and
Lessor shall use such award to make necessary repairs and alterations to the
Leased Premises with reasonable promptness; provided, however, Lessor shall not
be obligated to expend more than the amount of the award on such repairs or
alterations. Lessor shall be entitled to any
5 of 15
proceeds in excess of those amounts required for repairs or alterations. From
and after the date of taking, the Rent specified in Section 4 required to be
paid by Lessee to the Lessor shall be reduced in the proportion to which the
area so taken or transferred bears to the total area of the Leased Premises.
A voluntary conveyance by Lessor to a public utility, agency, or authority
under threat of a taking under power of eminent domain in lieu of formal
proceedings shall be deemed a taking within the meaning of this Section.
Notwithstanding any other provision in this Section 9, in the event the
structure on the Leased Premises out of which Lessee operates a business is
condemned in whole or in part by appropriate public authority, Lessee, at its
option, may terminate the Lease agreement. Lessee must exercise the option to
terminate the Lease within ten (10) days after receipt of notice of the
condemnation decision by the public authority. Failure to provide such notice by
Lessee shall be deemed a waiver of the option to terminate the Lease.
10. Assignment and Sublease.
a. Assignment. Without the prior written consent of Lessor, Lessee
shall not have the right to assign or transfer Lessee's interest in
this Lease, and the leasehold estate created hereby, except to a
financially responsible party, who is acceptable to Lessor. Lessee
shall secure from its proposed assignee such financial information as
Lessor may request to assist in determining whether the proposed
assignee is financially responsible. No assignment by Lessee shall
release Lessee from liability under this Lease.
b. Sublease. Lessee shall not have the right to sublease all or any
portion of the Leased Premises except with Lessor's prior written
consent. Any sublease shall not extend beyond the original term of
this Lease such that if, at the time of termination of the original
term of this Lease a sublessee is in possession of the Leased
Premises, said sublessee shall not have the right to extend the
sublease as provided in Section 3 of this Lease; and, provided further
that, excepting Section 3, any such sublease shall be subject to all
of the terms and conditions of this Lease.
c. The prohibitions against assignment or subleasing include any act,
voluntary or involuntary, which has the effect of an assignment or
which occurs by operation of law.
11. Default Provisions and Remedies. a. Lessee shall be in default if any
one or more of the following events (herein sometimes called "events of
default") shall happen:
1. If default shall be made in the due and punctual payment of
any
6 of 15
Rent payable under this Lease or any part thereof, and such
default continues for a period of ten (10) days after written
notice, provided, however, that Lessee shall be entitled to only
one (1) grace period per twelve-month period; or
2. If Lessee makes an assignment for the benefit of creditors, or
petitions for or enters into an arrangement, or if Lessee shall
abandon said Leased Premises, or suffer this Lease to be taken
under any writ of execution; or
3. If default shall be made by Lessee in the performance or
compliance with any of the agreements, terms, covenants, or
conditions provided for in this Lease (except terms related to
the punctual payment of rent) for a period of ten (10) days after
notice from Lessor to Lessee specifying the items in default, or
in the case of a default or a contingency which cannot with due
diligence be cured within ten (10) days, Lessee fails to proceed
within the ten (10) day period to cure the same and thereafter to
prosecute the curing of such default with due diligence (it being
intended in connection with a default not susceptible of being
cured with due diligence within ten (10) days that the time
within which to cure the same shall be extended for such period
as may be necessary to complete the same with all due diligence);
or
4. If Lessee shall file a voluntary petition in bankruptcy or
shall be adjudicated as bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar
relief under the present or any future federal bankruptcy act or
any other present or future federal, state or other bankruptcy or
insolvency statute or law, or shall seek or consent to or
acquiesce in the appointment of any bankruptcy or insolvency
trustee, receiver or liquidator of Lessee or of all or any
substantial part of its properties or of the Leased Premises; or
5. If within sixty (60) days after the commencement of any
proceeding against Lessee seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal
bankruptcy act or any other present or future federal, state or
other bankruptcy or insolvency statute or law, such proceeding
shall not have been dismissed; then and in any such event the
term hereby demised and all rights of Lessee under this Lease,
including any renewal privileges whether or not exercises, shall
expire and terminate, and Lessee shall remain liable as
hereinafter provided.
b. Upon any such expiration or termination of this Lease, Lessee shall
quit and peacefully surrender the Leased Premises to Lessor, and
Lessor, upon or at
7 of 15
any time after any such expiration or termination, may without further
notice, enter upon and re-enter the Leased Premises and possess and
repossess itself thereof, by force, summary proceedings, ejectment or
otherwise, and may dispossess Lessee and remove Lessee and all other
persons and property from the Leased Premises and may have, hold and
enjoy the Leased Premises and the right to receive all rental income
of and from the same.
c. At any time or from time to time after any such expiration or
termination, Lessor may relet the Leased Premises or any part thereof
for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the term of this
Lease) and on such conditions (which may include concessions or free
rent and alterations of the Leased Premises) as Lessor, in its
uncontrolled discretion, may determine and may collect and receive the
rents therefor. Lessor shall in no way be responsible or liable for
any failure to relet the Leased Premises or any part thereof, or for
any failure to collect any rent due upon any such reletting.
d. No such expiration or termination of this Lease shall relieve
Lessee of its liability and obligations under this Lease, and such
liability and obligations shall survive any such expiration or
termination. In the event of any such expiration or termination,
whether or not the Leased Premises or any part thereof shall have been
relet, Lessee shall pay to Lessor the rent and all other charges
required to be paid by Lessee up to the time of such expiration or
termination of this Lease, and thereafter Lessee, until the end of
what would have been the term of this Lease in the absence of such
expiration or termination, shall be liable to Lessor for, and shall
pay to Lessor, as and for liquidated and agreed current damages for
Lessee's default, the equivalent of the amount of the rent and charges
which would be payable under this Lease by Lessee if this Lease were
still in effect, less the net proceeds of any reletting effected
pursuant to the provisions of subsection c. hereof, after deducting
all Lessor's reasonable expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage and
management commissions, operating expenses, legal expenses, reasonable
attorney fees, alteration costs and expenses of preparation for such
reletting.
Lessee shall pay such current damages (herein called
"deficiency") to Lessor monthly on the days on which the Rent would
have been payable under this Lease if this Lease were still in effect,
and Lessor shall be entitled to recover from Lessee each monthly
deficiency as the same shall arise.
At any time after such expiration or termination, in lieu of
collecting any further monthly deficiencies as aforesaid, Lessor shall
be entitled to recover from Lessee, and Lessee shall pay to Lessor, on
demand, as and for liquidated and agreed final damages for Lessee's
default, an amount equal to the then fair value of the excess of the
Rent reserved hereunder for the unexpired portion of the term demised
over the then fair and reasonable rental value of the Leased Premises
for
8 of 15
the same period, minus any such monthly deficiencies previously
recovered from Lessee.
If the Leased Premises or any part thereof be relet by Lessor for
the unexpired term of this Lease, or any part thereof, before
presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such
reletting shall be considered as evidence of the fair and reasonable
rental value for the part or the whole of the Leased Premises so relet
during the term of the reletting if Lessor demonstrates due diligence
in reletting the leased premises. Nothing herein contained shall limit
or prejudice the right of Lessor to apply for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
e. Lessee hereby expressly waives, so far as permitted by law, the
service of any notice of intention to re-enter provided for in any
statute, and except as is herein otherwise provided, Lessee, for and
on behalf of itself and all persons claiming through or under Lessee
(including leasehold mortgagee or other creditor), also waives, any
and all right of redemption or re-entry or repossession in case lessee
shall be dispossessed by a judgment or by warrant of any court or
judge or in case of re-entry or repossession by Lessor or in case of
any expiration or termination of this Lease. The terms "enter,"
"re-enter," "entry," or "re-entry," as used in this Lease, are not
restricted to their technical legal meanings.
12. Termination and Surrender.
a. Termination. This Lease will terminate on the expiration of the
term hereof, including any extensions pursuant to Section 3 unless
sooner terminated by the provisions of this Lease.
b. Surrender. Unless otherwise mutually agreed by the parties, after
termination of the Lease term, Lessee agrees to deliver possession of
the Leased Premises to Lessor with all fixtures and appurtenances in
place, in as good condition as existed immediately prior to December
1, 2001, or as improved and altered during the term of the lease,
ordinary wear and tear, damage by the elements, acts of God, and the
effects of time excepted; provided that Lessee shall have the right to
remove its personal property and trade fixtures upon its vacation of
the property; and provided further that Lessee is responsible for
repairing any damage to the Leased Premises caused by the removal of
its personal property or trade fixtures. "Ordinary wear and tear",
"damage by the elements", "acts of God", and "the effects of time" are
not intended to include damages resulting from Lessee's failure to
maintain the Leased Premises as required in Paragraph 5b, or any other
provisions of this Lease.
9 of 15
c. Effect of Holding Over. In the event Lessee shall hold over after
the end of the Lease Term, no recognition of a continuing tenancy by
Lessor, by accepting rent or otherwise, shall be construed as creating
a tenancy from year to year, but the same shall be construed as
constituting a tenancy for one (1) month only; and, if recognized by
Lessor after the end of the first month, shall be deemed to create
successive tenancies for one (1) month only, governed at all times by
the terms of this Lease. In case Lessee shall hold over after the
termination of this Lease, Lessor shall, despite the acceptance of
rent from or on behalf of Lessee, be entitled as a separate remedy to
evict Lessee pursuant to any remedy of common or statutory law or in
equity which is available, and further be entitled to charge against
Lessee the reasonable costs, expenses, charges, attorney fees, and
rental or other business losses which may accrue to Lessor because of
such holding over by Lessee, and recover the same from Lessee as of
the date upon which Lessee was obligated to surrender possession of
the Leased Premises.
13. Indemnification. Lessee shall indemnify and hold harmless Lessor from
and against any and all claims arising from Lessee's use of the Premises, or
from the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises and shall further
indemnify and hold harmless Lessor from and against any and all claims arising
from any breach or default in the performance of any obligation on Lessee's part
to be performed under the terms of this Lease, or arising from any negligence of
Lessee, or any of Lessee's agents, contractors or employees, and from and
against all costs, attorneys' fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon; and in
case any action or proceeding be brought against Lessor by reason of any such
claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense
by counsel reasonably satisfactory to Lessor.
14. Insurance. Lessee shall, at its own cost and expense, secure and
maintain during the entire term of this Lease and any renewals or extensions of
such term:
a. A broad form comprehensive coverage policy of public liability
insurance issued by an insurance company acceptable to Lessor and
insuring Lessor against loss or liability caused by or connected with
Lessee's occupation and use of the Leased Premises, in amounts not
less than:
i. $1,000,000.00 for injury to or death of one person, and not
less than $2,000,000.00 for injury to or death of two or
more persons as a result of any one accident or incident;
and,
ii. $500,000.00 for damage to or destruction of any property of
others.
10 of 15
b. Fire and extended coverage insurance, and earthquake coverage
insurance for loss or damage to the building and improvements in an
amount not less than one hundred percent (100%) of the full
replacement value at the time of loss. The property and casualty
insurance shall provide for a deductible amount from coverage of not
greater than $500.00 per occurrence.
c. Lessee agrees to maintain and pay for during the term of this Lease
and any extension thereof insurance for any plate glass breakage
within, on, or about the Leased Premises, which insurance may be
provided as part of any other coverage required in this lease.
d. Lessee shall name Lessor as additional insureds on each of the
policies required herein.
x. Xxxxxx and Lessee hereby expressly waive any and all claims against
each other for loss or damage due to fire or the perils, risks or
hazards ordinarily insured against in the State of Indiana standard
form of Fire Insurance Policy with Extended Coverage Endorsement and
which are, in fact, covered by such insurance, regardless of the cause
of such loss or damage, including without limitation, loss or damage
resulting from the negligence of the respective parties, their agents,
servants, employees, or invitees.
f. Said policies or proper certificates of insurance, duly executed by
the insurance company or the general agency writing said policies
effective not later than the first day of the initial term of this
Lease and providing for at least ten (10) days written notice to
Lessor and any mortgagee of the Leased Premises prior to cancellation
of said policies, shall be deposited with Lessor and held by Lessor at
all times throughout the duration of this Lease, or any extension
thereof.
g. The policy or policies of insurance shall be placed in such company
or companies as may be acceptable to Lessor and any mortgagee of
Lessor, who agree not to arbitrarily object to such insurance being
placed with any reputable company.
h. All insurance shall name Lessor, Lessee, and any mortgagee of the
Leased Premises as the insureds as their interests may appear. At the
request of Lessor, any such insurance shall be made payable to the
holders of any mortgage upon the Leased Premises, as the interest of
such holders may appear, pursuant to a standard clause for holders of
mortgages.
i. If Lessee shall refuse or fail to procure, apply for or keep in
force the policies of insurance above set forth, or to deliver the
policies or certificates showing the existence of the insurance
hereinabove set forth, Lessor may, at its
11 of 15
election, procure, pay for, keep in force and from time to time renew
such insurance, and the amounts expended therefor shall be so much
additional rent due from Lessee with the next monthly installment of
rent accruing hereunder. Nothing contained in this Section shall
impose any obligation upon the Lessor to obtain or maintain insurance
on the Leased Premises.
15. General Provisions.
a. All of the provisions of this Lease shall be deemed as running with
the land and construed to be "conditions" as well as "covenants" as
though the words specifically expressing or imparting covenants and
conditions were used in each separate provision.
b. No failure by Lessor to insist upon the strict performance by
Lessee of any covenant, agreement, term or condition of this Lease or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or of such covenant, agreement,
term or condition. No waiver of any breach shall affect or alter this
Lease, but each and every covenant, condition, agreement and term of
this Lease shall continue in full force and effect with respect to any
other then existing or subsequent breach.
c. Time is of the essence of this Lease and of each provision.
d. The time in which any act provided by this Lease is to be done is
computed by excluding the first day and including the last, unless the
last day is a Saturday, Sunday or legal holiday, and then it is also
excluded.
e. If either party shall be delayed or prevented from the performance
of any act required by this Lease by reason of acts of God, strikes,
walk-outs, labor troubles, inability to procure materials, restrictive
governmental laws, or regulations, or other cause, without fault
beyond the reasonable control of the party obligated (financial
inability excepted), performance of such act shall be excused for the
period of the delay; and the period for the performance of any such
act shall be extended for a period equivalent to the period of such
delay, provided, however, nothing in this section shall excuse Lessee
from the prompt payment of any rental or other charge required of
Lessee except as may be expressly provided elsewhere in this Lease.
f. If Lessee shall first perform all the covenants and conditions of
this Lease, Lessor covenants to provide Lessee quiet enjoyment and use
of the Leased Premises.
g. Each and all of the covenants, conditions, and restrictions in this
Lease shall inure to the benefit of and shall be binding upon the
successors in interest of Lessor, and the authorized encumbrances,
assignees, transferees, sublessee,
12 of 15
licensees, and other successors in interest of Lessee.
h. This Lease contains the entire agreement of the parties with
respect to the matters covered by this Lease, and no other agreement,
statement or promise made by any party, or to any employee, officer,
or agent of any party, which is not contained in this Lease shall be
binding or valid.
i. If any term, covenant, condition or provision of this Lease is held
by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the provisions shall remain in full
force and effect and shall in no way be affected, impaired, or
invalidated.
j. Except as specifically provided herein, nothing contained in this
Lease shall be deemed or construed by the parties or by any third
person to create the relationship of principal and agent of a
partnership or of a joint venture or of any association between Lessor
and Lessee, and neither the provisions contained in this Lease, nor
any acts of the parties shall be deemed to create any relationship
between Lessor and Lessee, other than the relationship of Lessor and
Lessee.
k. The language in all parts of this Lease shall in all cases be
simply construed according to its fair meaning and not strictly for or
against Lessor or Lessee. Unless otherwise provided in this Lease or
unless the context otherwise requires, the following definitions and
rules of construction shall apply to this Lease:
i. In this Lease, the neuter gender includes the feminine and
masculine, and the singular number includes the plural, the
word "person" includes a corporation, partnership, firm or
association wherever the context so requires.
ii. "Shall," "will," and "agrees," are mandatory; "may" is
permissive.
l. Captions of the articles, sections and paragraphs of this Lease are
for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction, or meaning of the provisions of this
Lease.
m. All references to the term of this Lease or to the lease term shall
include any extensions of such term.
n. Leased land, land, Leased Premises, and premises shall include the
improvements to the land.
o. "Parties" include the Lessor and the Lessee named in this Lease.
13 of 15
p. The invalidity of any provision of this Lease, as determined by a
court of competent jurisdiction, shall in no way affect the validity
of any other provision hereof.
16. Attorney's Fees. In the event either party shall bring any action or
proceeding for damages for an alleged breach of any provision of this Lease, to
recover rents, or to enforce, protect, or establish any right or remedy, the
prevailing party shall be entitled to recover as part of such action or
proceeding reasonable attorney fees, expenses and court costs.
17. Modification of Lease. This Lease is not subject to modification
except in writing.
18. Notices. All notices, demands, or requests from one party to another
may be personally delivered or sent by mail, certified or registered, postage
prepaid, to the addresses stated in this Section 19.
All notices, demands, or requests from Lessee to Lessor shall be given to Lessor
at:
X.X. Xxx 000 With Copy to: Xxxxxx X. Xxxx
Xxxxxxxxx, Xxxxxxx 00000-0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxx & Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxx 00000
All notices, demands, or requests from Lessor to Lessee shall be given to Lessee
at:
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Each party shall have the right, from time to time, to designate a
different address by notice given in conformity with this article.
19. Jurisdiction. In the event Lessor and Lessee cannot agree on any point
in this Lease, the parties agree that the proper venue for any legal action
shall be Xxxxx County, Indiana.
20. Memorandum of Lease. Lessor and Lessee agree to execute a Memorandum of
Lease sufficient for recording in the office of the Recorder of Xxxxx County,
Indiana.
Lessor: Commercial 100, L.L.C. Lessee: First Bank, Inc.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx, President
Xxxxx X. Xxxxxx - Member
14 of 15
STATE OF INDIANA )
) SS:
COUNTY OF XXXXX )
Before me, a Notary Public, in and for said County and State, personally
appeared Xxxxx X. Xxxxxx, a Member of Commercial 100, L.L.C. and acknowledged
that he executed the foregoing Lease Agreement, as Lessor, to be his true and
voluntary act and deed.
WITNESS my hand and Notarial Seal this 20th day of February, 2002.
/s/ Xxxxxx Xxxx
Notary Public
My Commission Expires:
April 4, 2007 Printed Name: Xxxxxx Xxxx
Resident of Xxxxxxxxxxx County, Indiana
STATE OF INDIANA )
) SS:
COUNTY OF XXXXX )
Before me, a Notary Public, in and for said County and State, personally
appeared Xxxxx X. Xxxxx, and acknowledged that he executed the foregoing Lease
Agreement, as Lessee, to be his true and voluntary act and deed.
WITNESS my hand and Notarial Seal this 20th day of February, 2002.
/s/ Xxxxx X. Xxxxx
Notary Public
My Commission Expires:
1/22/09 Printed Name: Xxxxx X. Xxxxx
Resident of Xxxxxxx County, Indiana
This instrument prepared by Xxxxxx X. Xxxx, ANDREWS, HARRELL, XXXX, XXXXXX &
XXXXXX, 000 X. 0xx Xx., Xxxxx 000, X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxxxx,
00000-0000.
15 of 15
EXHIBIT A
PART OF THE NORTHWEST QUARTER OF SECTION 19 TOWNSHIP 9 NORTH, RANGE 3 EAST,
WASHINGTON TOWNSHIP, XXXXX COUNTY, INDIANA DESCRIBED AS FOLLOWS: COMMENCING AT
THE NORTHWEST CORNER OF LOT NUMBER 2 IN XXXXX ADDITION TO THE TOWN OF NASHVILLE,
XXXXX COUNTY, INDIANA ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT CABINET
1, SLEEVE 251A IN THE OFFICE OF THE RECORDER OF XXXXX COUNTY, INDIANA, ALSO THE
XXXXXXXXX XXXXXX XX X XXXXX XXXXXXXXX XX XXX XXXXXX XXXXXX POSTAL SERVICE IN
DEED RECORD NUMBER 141, PAGE 505 IN THE OFFICE OF THE RECORDER OF XXXXX COUNTY,
INDIANA; THENCE NORTH 69 DEGREES 56 MINUTES 26 SECONDS WEST (BEARING FROM DEED)
329.91 FEET TO AN IRON PIPE FOUND MARKING THE NORTHWEST CORNER OF SAID UNITED
STATES POSTAL SERVICE TRACT; THENCE SOUTH 05 DEGREES 46 MINUTES 00 SECONDS EAST
306.80 FEET TO A CAPPED REBAR FOUND MARKING THE SOUTHWEST CORNER OF SAID UNITED
STATES POSTAL SERVICE TRACT AND THE BEGINNING; THENCE SOUTH 72 DEGREES 01
MINUTES 00 SECONDS EAST WITH THE SOUTH LINE OF SAID UNITED STATES POSTAL SERVICE
TRACT 137.10 FEET TO A CAPPED REBAR FOUND ON THE WESTERLY RIGHT OF WAY OF
COMMERCIAL STREET; THENCE SOUTH 05 DEGREES 52 MINUTES 40 SECONDS WEST WITH SAID
WESTERLY RIGHT OF WAY 221.67 FEET TO A CAPPED REBAR SET; THENCE THE FOLLOWING
TWO (2) COURSES ARE THROUGH THE LANDS OF XXXXXX DESCRIBED IN DEED RECORD NUMBER
133, PAGES 106-108 IN THE OFFICE OF THE RECORDER OF XXXXX COUNTY, INDIANA; NORTH
73 DEGREES 01 MINUTES 42 SECONDS WEST 146.09 FEET TO A CAPPED REBAR SET AND
NORTH 08 DEGREES 23 MINUTES 17 SECONDS EAST 219.67 FEET TO A CAPPED REBAR FOUND
MARKING THE SOUTHEAST CORNER OF A TRACT DESCRIBED TO XXXXXXXXXX IN DEED RECORD
NUMBER 144, PAGE 239 IN THE OFFICE OF THE RECORDER OF XXXXX COUNTY, INDIANA;
THENCE NORTH 00 DEGREES 23 MINUTES 58 SECONDS WEST WITH THE EASTERLY LINE OF
XXXXXXXXXX 2.87 FEET TO THE BEGINNING, CONTAINING 0.709 ACRE MORE OR LESS.
SUBJECT TO ALL LEGAL RIGHTS OF WAY AND EASEMENTS EXISTING OR OF RECORD AFFECTING
SAID REAL ESTATE.
I CERTIFY THAT THE ABOVE DESCRIPTION REPRESENTS A SURVEY COMPLETED UNDER MY
DIRECTION NOVEMBER 5, 2001 AND TO THE BEST OF MY KNOWLEDGE AND BELIEF CONFORMS
WITH THE SURVEY REQUIREMENTS IN TITLE 865 ARTICLE 1.1, CHAPTER 12, SECTIONS 1
THROUGH 29 OF THE INDIANA ADMINISTRATIVE CODE.
/s/ XXXXXX XXXXX
R.L.S. #S0078
X.X. XXX 0000
XXXXXXXXX, XXXXXXX 00000
SURVEY FILE NUMBER 2001-071 [SEAL]
