Contract
Exhibit 10.1
THIS LEASE (“Lease”) is made and
entered into as of this 28th day of August, 2008, by and between BANK RENTALS, LLC, an Indiana
limited liability company with an address of 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxxxxxxxx, Xxxxxxx 00000 (“Lessor”), and 1ST INDEPENDENCE BANK, INC., a
Kentucky corporation with an address of 0000 Xxxxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 (“Lessee”).
WITNESSETH:
WHEREAS, Lessor owns and operates a
building containing approximately 4,748 square feet of total gross building area
and 4,294 square feet of net rentable area located at 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxxxxxxx, Xxxxxxx (the “Building”);
WHEREAS, Lessor desires to lease to
Lessee, and Lessee desires to lease from Lessor, certain office space in the
Building (the “Premises”) consisting of approximately 2,147 square feet on the
first floor of the building and approximately 1,248 feet of shared
space on the second floor of the Building.
NOW, THEREFORE, in consideration of the
rents herein reserved, the other terms and conditions hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each of the parties hereto, Lessor and Lessee hereby
agree as follows:
SECTION
1. PREMISES
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1.1.
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Upon
the terms and conditions hereinafter set forth, Lessor does hereby lease
to Lessee, and Lessee does lease from Lessor, the Premises, together with
(a) all other improvements, furniture, fixtures and equipment presently
located in the Premises, (b) reasonable rights of ingress and egress to
the Premises by automobile and truck, (c) the nonexclusive use of the
common areas with other lessees of the Building, subject to (y) all rights
of way or use, servitudes, licenses, tenements, hereditaments,
appurtenances and easements now or hereafter belonging to or affecting the
Premises (the “Permitted Exceptions”), and (z) the other terms and
provisions of this Lease.
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1.2.
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Notwithstanding
anything contained herein to the contrary, Lessee acknowledges and agrees
that this Lease is subject to all of the terms and conditions set forth in
the Permitted Exceptions and Lessee shall comply with the Permitted
Exceptions as though Lessee is the fee owner of the
Premises.
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1.3.
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Except
as set forth herein, Lessee accepts possession of the Premises as of the
Commencement Date, in its condition “As is, where is, with all
faults”.
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SECTION
2. TERM
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2.1.
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Subject
to early termination as set forth herein, Lessee will have and hold the
Premises for an initial term of five (5) years commencing August 28, 2008
(the
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“Commencement
Date”) and ending on August 28, 2013 (the “Initial Term”), subject to the
renewal/extension provisions of Exhibit A attached
hereto and made a part hereof. The Initial Term and any renewal or
extension terms set forth herein shall collectively be referred to as the
“Term.”
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2.2.
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At
any time following the first eighteen (18) months of this Lease, either
party shall have the right to terminate this Lease upon at least twelve
(12) months prior written notice to the other
party.
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SECTION
3. RENT,
SURVIVAL OF OBLIGATIONS
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3.1.
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Lessee
covenants to pay to Lessor at its notice address, or at such place or to
such person as Lessor may designate in writing from time to time, base
rent for the Premises (“Base Rent”) as follows: from the Commencement Date
through the expiration of the Initial Term (as may be extended per Exhibit A
attached hereto and made a part hereof), Base Rent will be $18,000 per
year, payable in equal monthly installments of $1,500
each.
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3.2.
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Base
Rent shall be payable in advance on or before the first day of each
calendar month during the Term in lawful money of the United States of
America at the notice address of Lessor set forth herein or as may
otherwise directed by Lessor in writing, from time to time, without
demand, set off or counterclaim, except as otherwise specifically provided
herein.
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3.3.
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Lessee
also covenants to pay and discharge during the Term, when the same will
become due, any and all other amounts, liabilities and obligations which
Lessee assumes or agrees to pay or discharge pursuant to this Lease,
together with every fine, penalty, interest and cost which may be added
for non-payment or late payment thereof, and in the event of any failure
on the part of Lessee to pay or discharge any of the same, Lessor will
have all rights, powers and remedies provided herein or by law or equity
or otherwise in the case of non-payment of the Rent. Lessee
will also pay to Lessor on demand interest at the annual rate of four per
cent (4%) over the then existing prime rate of interest charged by
Citibank, N.A., New York, New York (but not to exceed the rate allowable
by law) (“Default Rate”) on all amounts of Additional Rent (as such term
is defined below) which are overdue for ten (10) days or more, from the
due date thereof until paid in
full.
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3.4.
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Lessor
may (upon written notice to Lessee and the expiration of the applicable
grace period) but shall not be obligated to, make any payment or perform
any act required hereunder to be made or performed by Lessee with the same
effect as if made or performed by Lessee, provided that no entry by Lessor
upon the Premises for such purpose shall constitute or be deemed to be an
eviction of Lessee and shall not waive or release Lessee from any
obligation or default hereunder. All sums so paid by Lessor and
all costs and expenses incurred by Lessor in connection with the
performance of any such act, together with interest thereon from the date
paid by Lessor at the Default Rate, shall be payable by Lessee promptly
upon demand..
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SECTION
4.
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ADDITIONAL
RENT
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In addition to the Base Rent provided
for above, Lessee shall pay its Pro Rata Share of Total Operating Expenses (as
defined hereinafter) for the Building for each calendar year (which shall be
deemed additional rent).
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4.1.
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Lessee’s
“Pro Rata Share of Total Operating Expenses” shall be 64.50%
(calculated as 2,147 + ½ of 1,248 / 4,294)
multiplied by the Total Operating Expenses (as hereinafter
defined). Any partial calendar year shall be
prorated.
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4.2.
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“Total
Operating Expenses” shall include, but are not limited, to the following
expenses incurred in the operation of the
Building:
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(a)
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All
real property taxes and assessments and other taxes and assessments of any
nature levied and assessed against the Building and the land on which it
is situated (“Real Estate”), or assessed against Lessor as a result of the
Building and Real Estate (but excluding personal property, estate,
inheritance and income taxes of Lessor) (collectively referred to herein
as “Real Estate Taxes”);
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(b)
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all
expenses incurred by Lessor in connection with the operation, maintenance
and repair of the Building and Real
Estate;
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(c)
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costs
of resurfacing, repainting, and restriping the parking
areas;
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(d)
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cleaning
and other janitorial services;
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(e)
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snow
and ice removal, and security
services;
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(f)
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landscaping;
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(g)
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directional
signs and other markers;
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(h)
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all
improvements, machinery, and equipment used in connection with the
Building and Real Estate, including the heating, ventilation and
air-conditioning system;
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(i)
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water,
sewer, electrical and other utility charges other than any separately
billed charges paid directly by Lessee;
and
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(j)
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premiums
on public liability and fire and extended coverage
insurance.
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4.3.
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From
time to time, Lessor shall reasonably estimate (or re-estimate) the amount
of the Total Operating Expenses payable by Lessee for any whole or partial
lease year during the Term. Lessee shall pay, as Additional
Rent, equal monthly installments of its Pro Rata Share of the Total
Operating Expenses during such whole or partial lease
year. Within ninety (90) days after the end of each lease year,
Lessor shall provide to Lessee a statement showing the actual Pro
Rata
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Share of
Total Operating Expenses for the preceding lease year. Within thirty
(30) days after Lessee’s receipt of such statement, Lessee shall pay to Lessor,
or Lessor shall credit against the next Base Rent payment(s) due (unless such
statement is for the last Lease Year of the Term, in which event Lessor shall
promptly return any over-payment to Lessee), as the case may be, the difference
between the actual amount of Lessee’s Pro Rata Share of the Total Operating
Expenses for the preceding calendar year and the estimated amount paid by Lessee
for said calendar year.
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4.4.
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Lessee
shall have the right to cause an audit to be performed at Lessee’s sole
cost and expense of Lessor’s operations and books and records pertaining
to the Total Operating Expenses and Lessee’s Pro Rata Share of Total
Operating Expenses, so long as: (a) Lessor is given reasonable notice; (b)
such audit is conducted during normal business hours at Lessor’s office
and (c) Lessor is reimbursed for reasonable costs of copies incurred in
the course of such audit. If Lessor has overstated any of those
items, within thirty (30) days after demand by Lessee accompanied by
Lessee's verification of such overcharges, Lessor shall reimburse Lessee
for all such overcharges. If such overcharges exceed 5%, Lessor
shall reimburse Lessee for such overcharges plus interest at the rate of
8% per annum and the reasonable cost of the
audit.
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SECTION
5. USE
OF PREMISES
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5.1.
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Lessee
may use the Premises for the conduct of all lawful business and activities
which it or any affiliate is authorized by law to engage in and conduct as
a financial institution, both directly and through its subsidiaries, and
for such other lawful use as may be approved by Lessor in writing, which
approval shall not be unreasonably withheld, conditioned or delayed;
provided, however, Lessee will not use, or permit any person to use, the
Premises for any use or purpose in violation of any applicable (i)
governmental law, rule or regulation, or (ii) the Permitted
Exceptions. Notwithstanding anything in Section 5.2 to
the contrary, Lessee and its subtenants may not use the Premises for the
storage, distribution, or manufacture of Contaminants, as that term is
defined in Exhibit B
attached hereto and made a part hereof. Lessee may not install
an underground storage tank or tanks on the Premises without the Lessor’s
prior written consent, which consent the Lessor may withhold in its sole
discretion.
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5.2.
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Lessee
agrees, at its sole cost and expense, to comply with all Environmental
Laws, as that term is defined in Exhibit B
attached hereto and made a part hereof, and all governmental notices,
orders and requirements pursuant to Environmental Laws that relate to
Lessee’s use or occupancy of the Premises; provided, however, that nothing
herein shall be construed to require Lessee to bear any expense or
liability arising solely out of Lessee’s status as a lessee or occupant of
the Premises. Lessee will not permit or cause any Contaminants
to be brought upon, placed, held, stored, located, or disposed of on,
under, from or at the Premises, other than in compliance with all
Environmental Laws. Lessee will (i) provide Lessor with copies
of all communications between Lessee and any
governmental
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agencies
or other authorities related to Contaminants brought upon, placed, held,
located, stored or disposed of on, under, from or at the Premises or related to
the violation or alleged violation of any Environmental Laws with respect to
Lessee’s use or occupancy of the Premises, (ii) permit Lessor, at Lessor’s
discretion, to participate in any proceeding brought by a government agency or
authority, or a third party, with respect to Contaminants brought upon, placed,
held, located, stored or disposed of on, under, from or at the Premises with
respect to Lessee’s use or occupancy of the Premises or the violation or alleged
violation of any Environmental Laws with respect to Lessee’s use or occupancy of
the Premises, and (iii) permit Lessor, from time to time at Lessor’s discretion,
to conduct tests, analyses and investigations of the environmental conditions
relative to Lessee’s use or occupancy of the Premises. The expense of
Lessor’s participating in a proceeding pursuant to the foregoing clause (ii)
will be borne by Lessee. The expense of tests, analyses and
investigations conducted pursuant to the foregoing clause (iii) will be borne by
Lessee, to the extent that Lessor requires any such tests, analyses or
investigations because of a reasonable concern by Lessor, based upon an
inspection of the Premises by Lessor or Lessor’s agents or contractors, with
respect to environmental conditions relative to Lessee’s use or occupancy of the
Premises; otherwise, the expense of such tests, analyses and investigations will
be borne by Lessor. Additionally, Lessor shall have the further right
to enter onto the Premises, in such a manner and at such times as necessary to
comply with Lessee’s reasonable security requirements and to avoid unreasonable
interference with Lessee’s business operations at the Premises, to perform any
necessary Clean-up (as defined on Exhibit B attached
hereto and made a part hereof).
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5.3.
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In
addition to the foregoing, Lessee agrees, at its sole cost and expense, to
(i) comply with all laws, codes, orders, rules, regulations and
requirements of all governmental or other authorities having jurisdiction
over the Premises (collectively, “Laws”), and (ii) cause the Premises to
comply with all Laws.
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SECTION
6. UTILITIES
AND SERVICES
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6.1.
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Lessor
shall furnish the Premises with equipment and connections for all
utilities, including gas, electricity, telephone, water and sewer service,
and shall replace the same at its own expense, if necessary, unless such
replacement is caused by the intentional actions of Lessee (other than
normal wear and tear). Lessee’s occupancy and possession of the
Premises shall be evidence of Lessee’s determination that such equipment
and connections are of sufficient capacity to provide for the conduct of
Lessee’s business and the comfortable occupancy and use of the
Premises. Notwithstanding the foregoing, and subject to Section
4 hereinabove, Lessor shall provide and pay for all gas, electricity,
water and sewer charges and assessments with respect to the
Premises.
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6.2.
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Lessor
agrees to be diligent and to use commercially reasonable efforts to
restore any services which it is obligated to provide under the terms of
this Lease in the event that any temporary failures, stoppages,
interruptions, or discontinuances
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such
services occur. Should any utilities or services with respect to the
Premises fail, stop, or be interrupted or discontinued for any reason, then all
Base rent and additional rent payable hereunder shall xxxxx if any such failure,
stoppage, interruption or discontinuance continues for ten (10) business days
(until completely restored) and Lessee shall have the right to terminate this
Lease and all of its obligations hereunder if any such failure, stoppage,
interruption or discontinuance continues for thirty (30) days.
SECTION
7. INSURANCE
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7.1.
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During
the term of this Lease, Lessor shall maintain fire and extended coverage
insurance for the full replacement value of the Building, including all
personal property and equipment therein, and the Real Estate, but shall
not protect Lessee's property in the event of damage however
caused. Lessee shall be responsible for insuring its property
located on or at the Premises, and neither Lessor nor any other occupant
of the Building shall be liable to Lessee for damage to Lessee's property,
unless caused by the intentional act, negligence, or willful misconduct or
omission of Lessor or its agents or employees or any other
occupant. All insurance policies maintained by Lessor or Lessee
as required or permitted under this Lease 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. Lessor
and Lessee each hereby waives and releases any and all rights of recovery
which either might have against the other for any loss or damage, whether
or not caused by any alleged negligence of the other party, its agents,
licensees or invitees, to the extent that such loss or damage is covered
by any insurance required or permitted to be maintained under this
Lease.
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7.2.
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Lessor
shall not be liable to Lessee or any other person and Lessee shall
indemnify and save Lessor harmless from any and all liability, loss,
damage, injury (including death), cost or expense, including reasonable
attorneys' fees, arising or resulting from the condition of the Premises,
from any occurrence or happening in or about the Premises or from any act
or neglect of Lessee or its employees, agents, contractors, licenses or
invitees, unless such damage, injury or death is the direct result of the
negligence or intentional misconduct of Lessor or its employees or
agents. Lessee shall not be liable to Lessor or any other
person and Lessor shall indemnify and save Lessee harmless from any and
all liability, loss, damage, injury (including death), cost or expense,
including reasonable attorneys' fees, arising or resulting from the
condition of the Building (other than the Premises), from any occurrence
or happening in or about the Building (outside of the Premises) or from
any act or neglect of Lessor or its employees, agents, contractors,
licenses or invitees, unless such damage, injury or death is the direct
result of the negligence or intentional misconduct of Lessee or its
employees or agents.
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SECTION
8.
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LIENS
AND ENCUMBRANCES
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Lessee will not cause or permit to
stand, through any action taken by it, any mechanics’, laborer’s, materialman’s
or other lien against the Premises or building or improvement thereon in
connection with work of any character performed or material furnished to said
Premises. Nothing in this Lease may be construed as creating an agency
relationship between Lessor and Lessee for purposes of performing alterations,
improvements, or repairs. If Lessee in good faith desires to contest
the validity or amount of any such lien, Lessor agrees to cooperate in the
institution, defense and maintenance of any such action or proceeding, provided
that Lessee will indemnify and hold Lessor harmless from any and all expenses,
costs and liabilities in connection with any such contest. Any such
action or proceeding may be instituted and maintained by Lessee only if and so
long as the enforcement of any such lien, by sale or otherwise, will
be stayed by reason of such action or proceeding or by bond filed or a monetary
deposit paid into court as a part of such action or
proceeding. Promptly after the determination of any such contest
adverse to the Lessee and prior to the enforcement of any such lien, Lessee will
pay and discharge the amount of any such lien, together with any related
interest, costs and penalties.
SECTION
9. MAINTENANCE
AND REPAIR
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9.1.
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Except
as provided herein, Lessor shall, at its sole cost and expense, provide
all repairs, maintenance and replacements required to keep and maintain
the Building, the common areas, and the Premises, including, with respect
to the Premises and by way of limitation, the roof, subfloor and
structural components, doors, windows, locks and mechanical, electrical,
plumbing, and service elements serving the Premises, in a good condition
and in compliance with all governmental laws, rules and
regulations. In the event Lessor fails to timely provide such
repairs and maintenance, Lessee may, but shall not be obligated to, make
such repairs and maintenance after ten days’ prior written notice to
Lessor (except in the case of an emergency, in which case no notice shall
be required). If Lessor fails to commence any such repairs or
maintenance with due diligence following notice thereof from Lessee, and
if Lessee so elects to make such repairs or maintenance, all necessary
costs and expenses so incurred by Lessee in making such repairs or
maintenance shall promptly be paid by Lessor to Lessee upon
demand.
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9.2.
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Notwithstanding
the foregoing Section 9.1, Lessor shall not be required to make any
repairs to the Premises made necessary primarily as a result of the acts,
omissions, or negligence of Lessee (or its employees or invitees), except
when such damage is covered by warranty or insurance and then only to the
extent of the proceeds of such warranty or insurance. Lessee
shall be responsible for all such damage caused by Lessee not covered
under warranty or by insurance. In addition, Lessee shall, at
its own cost and expense, replace any cracked or broken glass, including
plate glass, in the interior and exterior windows and doors of the
Premises, provided Lessor will replace any glass that is cracked or broken
by settling of the Building or Lessor’s or its employees’ or agents’
acts.
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SECTION
10. ALTERATIONS
Lessee shall not make or allow to be
made any alterations, installations, additions or improvements in or to the
Premises, or place safes, vaults, or other heavy furniture or equipment within
the Premises, without Lessor’s prior written consent, which consent shall not be
unreasonably withheld or delayed; provided, however, Lessee shall have the
right, without Lessor’s consent, to construct additional or alternate facilities
in the Premises for housing Lessee’s ATMs (whether now located in the Premises
or not), as deemed reasonably necessary by Lessee. Lessor consents to
the presence of all safes, vaults, heavy furniture and equipment which is
situated on or in the Premises on the Commencement Date. All
alterations, installations, additions, or improvements, other than movable
furniture, movable equipment (including, without limitation Lessee’s ATMs),
other personal property and movable trade fixtures, made by Lessee to the
Premises shall remain upon and be surrendered with the Premises and become the
property of Lessor at the expiration or termination of this Lease or the
termination of Lessee’s right to possession of the Premises. Lessee,
at its sole cost and, on or before the expiration or termination of this Lease,
shall remove all of Lessee’s property from the Premises and repair all damage
caused by such removal. All such removal of Lessee’s property shall
be completed promptly and in a good and workmanlike manner and shall be
performed in such a manner that no mechanic’s, materialman’s or other similar
liens shall attach to Lessee’s leasehold estate, and in no event shall Lessee
permit, or be authorized to permit, any such liens or other claims to be
asserted against Lessor or Lessor’s rights, estate, and interests with respect
to the Premises or this Lease. In the event Lessee fails to remove
Lessee’s property on or before the expiration or termination of this Lease, the
signs shall become the property of Lessor without any credit or compensation to
Lessee, and Lessor may, but is not obligated to, remove and store or dispose of
the signs and Lessee shall be liable to Lessor for all costs incurred by Lessor
in connection therewith. Lessee shall indemnify and hold Lessor harmless from
all loss, damage, cost, expense, and liability in connection with such removal,
storage, or disposal.
SECTION
11. SURRENDER
OF PREMISES
Upon the expiration or earlier
termination of this Lease (by lapse of time or otherwise), Lessee shall deliver
up and surrender the Premises to Lessor, in the same condition as when Lessee
took possession, except for (i) normal wear and tear, (ii) damage from casualty
and the elements, (iii) loss from condemnation, and (iv) repairs and maintenance
which Lessee is not specifically obligated under this Lease to repair, failing
which Lessor may restore the Premises to such condition, order and repair at
Lessee’s reasonable expense, payable by Lessee to Lessor within twenty (20) days
after the date upon which Lessee receives a xxxx from Lessor
therefor. Any such xxxx shall be provided to Lessee within thirty
(30) days of the expiration or earlier termination of this Lease. The
provisions of this Section 11 shall survive expiration or earlier termination of
this Lease during such thirty (30) day period and provided such xxxx is timely
submitted to Lessee during such period, until such xxxx is paid by Lessee or
otherwise until such issue is resolved by the parties.
SECTION
12. HOLDOVER
If Lessee remains in possession of the
Premises after the expiration of the Term hereof without having first extended
this Lease by written agreement with Lessor, Lessee shall be
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deemed to
be a tenant for month-to-month only, at a Base Rent equal to one hundred
twenty-five percent (125%) of the Base Rent payable during the last month of the
Term, and in all other respects, except for the duration of the Term, the
provisions of this Lease shall govern the rights and liabilities of Lessor and
Lessee.
SECTION
13. DEFAULT
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13.1.
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Any
of the following shall constitute an event of default by Lessee under this
Lease (an “Event of
Default”):
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(a)
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Lessee’s
failure to pay any amount(s) due hereunder to Lessor within ten (10) days
after Lessee receives notice from Lessor that such payment is due,
provided that Lessor shall only be obligated to provide such notice to
Lessee twice in any twelve (12) month period during the
Term;
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(b)
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Lessee’s
failure to perform or observe any other obligation or covenant of Lessee
hereunder after a period of thirty (30) days or the additional time, if
any, that is reasonably necessary to promptly and diligently cure the
failure, so long as such cure is commenced within such thirty (30) day
period and pursued to completion;
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(c)
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Lessee’s
failure to vacate or stay any of the following within ninety (90) days
after they occur:
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(i)
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a
petition in bankruptcy is filed by or against
Lessee;
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(ii)
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Lessee
is adjudicated as bankrupt or
insolvent;
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(iii)
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a
receiver, trustee, or liquidator is appointed for all or a substantial
part of Lessee’s property; or
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(iv)
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Lessee
makes an assignment for the benefit of
creditors.
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13.2.
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If
an Event of Default shall have occurred and be continuing, then in such
event, Lessor may thereupon, to the extent permitted by applicable law,
(a) take possession of the Premises and relet the same without such action
being deemed an acceptance of a surrender of this Lease or in any way
terminating Lessee’s liability hereunder, and in such event of reletting
Lessee shall remain liable to pay the Base Rent and other amounts due
hereunder plus any reasonable expenses, including reasonable attorneys’
fees, incident to such repossession and reletting, less the net amount
realized for such reletting, or (b)Lessor may perform the obligations and
covenants of Lessee and collect the cost of such performance as additional
rent plus interest at the rate of eight percent (8%) per annum on such
expenditures, or (c) Lessor, at its option, may, with notice to Lessee,
terminate this Lease, or (d) Lessor, at its option, may exercise any other
remedy available to it at law or in equity. The remedies of
Lessor shall be cumulative, and no one of them shall be construed as
exclusive of any other or of any remedy provided by
law.
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13.3.
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Notwithstanding
the foregoing or anything to the contrary contained herein, Lessor
acknowledges and agrees that in the Event of a Default hereunder by
Lessee, Lessor will act in a commercially reasonable manner and use
reasonable efforts to mitigate any damages arising from such
default. Without limiting the generality of the foregoing,
Lessor shall mitigate its damage by making reasonable efforts to relet the
Premises on reasonable terms. Lessor may relet for a shorter or
longer period of time than the Term and make any necessary repairs or
alterations to prepare the Premises for reletting. Lessor may
relet on any reasonable terms, including a reasonable amount of free
rent. If Lessor relets for a period of time longer than the
current Term, then any special concessions given to the new Lessee shall
be allocated throughout the entire reletting Term so as to not unduly
reduce the amount of consideration received by Lessor during the remaining
period of Lessee’s
Term.
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13.4.
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If
Lessor fails to perform or observe any obligation or covenant of Lessor
hereunder within thirty (30) days of Lessor’s receipt of notice thereof
from Lessee (or if such failure is of such nature that it cannot be
completely cured within such thirty (30) day period, if Lessor does not
commence such curing within such thirty (30) day period and thereafter
proceed with reasonable diligence and in good faith to cure such failure),
then Lessee may immediately terminate this Lease and all of its
obligations hereunder and/or cure such failure at Lessor’s cost and
expense and/or pursue any other available remedy at law or in
equity. The remedies of Lessee shall be cumulative, and no one
of them shall be construed as exclusive of any other
remedy.
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SECTION
14. WAIVER
No consent or waiver, express or
implied, by either party hereto with respect to any breach or default by the
other party in the performance of any of the covenants or obligations of such
other party under this Lease shall be deemed or construed to be a consent to or
waiver of any other such breach or default.
SECTION
15. FIRE
AND CASUALTY
In the event the Premises are totally
or substantially destroyed by fire or other casualty and the same cannot
reasonably be repaired and fully restored within one hundred eighty (180) days
from the date of such casualty, Lessor or Lessee may terminate this Lease
effective as of the date of such casualty by written notice to the other party
at any time within sixty (60) days of the date of the casualty. If
the Premises should be damaged by fire or other casualty, but not totally
substantially destroyed, then such damaged part of the Premises shall be
reconstructed and restored, at Lessor's expense, to substantially the same
condition as it was prior to the casualty; provided, however, that if Lessee has
made any additional improvements, Lessee shall reimburse Lessor for the cost of
reconstructing the same. If such casualty damage prevents Lessee from
carrying on its normal business activity in the Premises to any extent, Base
Rent and additional rent shall be abated in the proportion which the approximate
area of the damaged part bears to the Leased Area from the date of the casualty
until completion of the reconstruction repairs, and this Lease shall continue in
full force and effect for the balance of the Term. Lessor shall
use
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reasonable
diligence in completing such reconstruction repairs, but in the event Lessor
fails to fully complete the same within one hundred eighty (180) days from the
date of the casualty, Lessee may, at its option, terminate this Lease by giving
Lessor written notice of such termination within thirty (30) days after such 180
day period, whereupon both parties shall be released from all further
obligations and liability hereunder, except for those that expressly survive the
expiration or earlier termination of this Lease.
SECTION
16. LESSOR’S
RIGHT OF ENTRY
Lessor reserves the right, subject to
the condition set forth below, to enter the Premises at reasonable times to
inspect same, to show the Premises to prospective purchasers or tenants and to
mortgagees, and to make such repairs, alterations, decorations, improvements and
additions as are required under the terms of this Lease or as Lessor deems
reasonably necessary or desirable for the safety, preservation, or improvement
of the Premises. Except in the case of an emergency or as otherwise
agreed by Lessee, (i) Lessor shall give Lessee at least twenty-four (24) hours’
notice of any such entry (which notice, in the case of conducting an inspection,
may be oral notice, provided that Lessee actually receives such notice), (ii)
such entries shall be made subject to Lessee’s normal and reasonable security
requirements, (iii) such entries shall be during Lessee’s normal business hours,
and (iv) Lessor shall use reasonable efforts to minimize any inconvenience to
Lessee and any interference with Lessee’s business operations in the
Premises.
SECTION
17. EMINENT
DOMAIN
In the event the Premises, or any part
thereof or interest therein, or any building or improvement thereon, is taken or
condemned for a public or quasi-public use, or is conveyed in lieu thereof
(herein referred to as a “condemnation”), the rights of the Lessor and Lessee in
respect of the condemnation proceeding and the condemnation proceeds and the
effect of such condemnation proceeds on the terms of this Lease will be as
follows:
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17.1.
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Any
condemnation allowance or award or judgment relating thereto, allowed or
awarded to the Lessor or Lessee and any interest thereon (“condemnation
proceeds”) will be paid to the Lessor to be held and dealt with as
provided in subparagraphs 17.2 through 17.5 of this Section, excluding any
special award for, or portion of award allowable and allocated to, the
Lessee for the taking of the Lessee’s personal property on the Premises
including trade fixtures (and not for Lessee’s interest in the Premises or
in the building and improvements located on the Premises) or as special
damages to the Lessee for disturbance of use, injury to business,
relocation, storage or the like.
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17.2.
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If
the condemnation results in a taking of all of the Premises, the
condemnation proceeds will be applied in the following
order:
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(a)
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In
satisfaction and discharge of all special assessments, if any, including
both principal and interest, levied on the Premises or any part thereof
for benefits resulting from the improvements for which or in conjunction
with which the condemnation was
effected.
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(b)
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In
reimbursement to Lessee of any amounts paid by it for real estate taxes or
special assessments and which are included in the award, plus a pro rata
portion of the interest, if any, constituting part of the
award.
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(c)
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To
the Lessor, up to and not exceeding the Premises
Value.
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(d)
|
The
balance, if any, to the Lessee as and for its own
property.
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17.3.
|
In
the event more than 25% of the Premises is taken in condemnation
proceedings, Lessee may either terminate this Lease by notice to Lessor
within 15 days of the effective date of such taking, or, at its option,
retain the Premises. In the event Lessee fails to notify Lessor of such
termination within such 15 day period, Lessee will be deemed to have
elected to retain the Premises. In the event (i) less than 25% of the
Premises is taken or (ii) more than 25% of the Premises is taken and
Lessee does not elect to terminate this Lease, Lessee will restore the
Premises to proper rentable condition forthwith, without abatement of
rent. If the Lease is terminated pursuant to this subsection,
all condemnation proceeds up to the Premises Value, will be payable to
Lessor, and any proceeds in excess of the Premises Value will be payable
to Lessee. If the Lease is not terminated, the condemnation
proceeds for the partial taking will be payable to Lessee. Any
award for taking of and/or damage to any part of the Premises which is not
spent for restoration will be for the account of
Lessee.
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17.4.
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If
the condemnation will result in a taking of all the Premises, this Lease
will terminate when the condemnor will take possession of the Premises,
and the rent hereunder will thereupon cease to accrue, but without
affecting the enforceability of any rights under this Section 17 or
any other accrued or contingent rights and obligations of the parties
under this Lease.
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17.5.
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The
foregoing provisions of this Section 17 will
not be construed so as to deny either the Lessee or the Lessor the right
to appeal or defend an appeal of the award allowed or covering its
interest in the Premises to the district court or any other court having
jurisdiction, whether or not the effect of the appeal will be to delay the
taking or the final determination of allocation of the
award. The amount of the award, as used in this Section 17,
refers to the award as finally determined in the condemnation proceedings
or as accepted by the Lessor and the
Lessee.
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SECTION
18. SIGNS
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18.1.
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Lessee
shall have exclusive signage rights on the Premises (including, without
limitation, the building located on the Premises) during the Term (and any
applicable renewal term).
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18.2.
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All signs,
banners, lettering, placards, decorations, and advertising media that can
be viewed from the exterior of the Premises shall conform in all respects
to the requirements, if any, of all applicable laws, codes, and
ordinances. All signs shall be kept in good condition and
in proper operating order at all times. On or before the
expiration or earlier termination of this Lease, Lessee shall have
the
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right to
remove all signs and in connection with any such removal shall restore the
surface to which the signs were attached to their original condition at Lessee’s
expense. In the event Lessee fails to remove all signs on or before
the expiration or termination of this Lease, the signs shall become the property
of Lessor without any credit or compensation to Lessee, and Lessor may, but is
not obligated to, remove and store or dispose of the signs and Lessee shall be
liable to Lessor for all costs incurred by Lessor in connection therewith.
Lessee shall indemnify and hold Lessor harmless from all loss, damage, cost,
expense, and liability in connection with such removal, storage, or
disposal. If Lessee changes its name at any time, Lessee shall have
the right to make such changes to its signage as are necessary to reflect the
changed name, and may modify or change existing signs to do so.
SECTION
19. COMPLIANCE WITH
LAW
Lessee shall not use the Premises for
any unlawful purpose or act; shall not commit or permit any waste or damage to
the Premises; shall comply with and obey all laws, regulations and orders of any
governmental authority or agency; shall comply with all reasonable directions of
Lessor, including any reasonable, non-discriminatory building rules and
regulations, as may be promulgated and/or modified from time to time by Lessor
on reasonable notice to Lessee; and, shall not do or permit anything to be done
in or about the Premises which will in any way unreasonably obstruct or
interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them. Lessor shall not be responsible to Lessee for
the nonperformance by any other tenant or occupant of the Building of any of
such building rules and regulations, but agrees to take reasonable measures to
assure such other tenants’ and occupants’ compliance.
SECTION
20. BROKERAGE
CLAIMS AND FEES
Lessor and Lessee each represents and
warrants that no broker has been involved in this leasing of the
Premises. Lessor and Lessee each covenant to indemnify and hold the
other harmless from and against any and all cost, expense or liability for any
compensation, commission or charge claimed by any broker, agent or person
claiming by or through such party with respect to this Lease or the negotiation
hereof, except as provided herein.
SECTION
21. SUCCESSORS
AND ASSIGNS
This Lease shall be binding upon and
shall inure to the benefit of Lessor and Lessee and their respective successors
and permitted assigns.
SECTION
22. THIRD
PARTY RIGHTS
Nothing herein, expressed or implied,
is intended to or shall be construed to confer upon or give to any person or
entity, other than the parties hereto, any right or remedy under or by reason of
this Lease.
SECTION
23. NOTICES
All notices, requests and other
communications hereunder will be in writing and will be
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sent by
(a) personal delivery, (b) overnight courier service that regularly maintains a
record of its deliveries, charges prepaid or (c) certified U.S. mail, postage
prepaid, return receipt requested, and addressed to the following addresses, or
to such other address of which Lessor or Lessee will have given notice to the
other as herein provided:
If to Lessor,
to: Bank
Rentals, LLC
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxxxxxx,
Xxxxxxx 00000
If to Lessee,
to: 1st
Independence Bank, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attn: N. Xxxxxxx
Xxxxx
With a copy
to: MainSource
Bank
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Attn: Xxxxx X.
Xxxxxxxx
All such
notices, requests and other communications will be deemed to have been
sufficiently given for all purposes hereof on the date of delivery, if sent by
personal delivery, the day after deposit with the carrier, if sent by overnight
courier service, or upon receipt or rejection, if sent by certified U.S. mail,
return receipt requested.
SECTION
24. ASSIGNMENT
AND SUBLETTING
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24.1.
|
Except
as is permitted by Section 25.2,
Lessee shall not voluntarily, by operation of law, or otherwise, assign,
transfer, mortgage, pledge, or encumber this Lease or suffer any person
other than Lessee, its employees, agents, servants, and invitees to occupy
or use the Premises or any portion thereof without the express prior
written consent of Lessor, not to be unreasonably withheld or delayed. Any
attempt to do any of the foregoing without such written consent shall be
null and void and of no effect, and shall further constitute a default
under this Lease. If Lessee so requests Lessor’s consent, said request
shall be in writing specifying the duration of said desired sublease or
assignment, the date same is to occur, the name of the assignee or
sublessee, the exact location of the space affected thereby, and the
proposed rentals on a square foot basis chargeable
thereunder. Lessee’s request shall be submitted to Lessor
at least thirty (30) days in advance of the date on which Lessee desires
to make such assignment or sublease or allow such occupancy or use. Within
fifteen (15) days following Lessor’s receipt of Lessee’s request, Lessor
shall either (a) give notice to Lessee of its withholding of its consent;
or (b) give notice of its election, in its sole discretion, to either (i)
grant such consent, or (ii) elect to terminate this Lease with respect to
the Premises or any portion thereof to be affected by such assignment,
sublease, or other event specified above in which event Lessee shall be
relieved of all of its obligations hereunder, or (iii) suspend this Lease
as to the space to be affected by such assignment, sublease, or other
event specified above for the
duration
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specified
by Lessee in its notice, in which event Lessee will be relieved of all
obligations hereunder as to such space during said suspension, including a
suspension of the Rent hereunder in proportion to the portion of the
Premises affected thereby (but after said suspension, if the suspension is
not for the full term hereof, Lessee shall once again become liable
hereunder as to the applicable
space).
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24.2.
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Notwithstanding
Section
25.1, Lessee may assign or sublet this Lease to any (i) state
or national banking association acquiring substantially all of the assets
of Lessee or (ii) any state or federal savings and loan association or
federal savings bank acquiring substantially all of the assets of Lessee
or (iii) any bank or corporation which Lessee wholly owns and controls or
which wholly owns and controls Lessee or which is wholly owned by and
controlled by a bank or corporation which wholly owns and controls
Lessee. Notwithstanding the foregoing, no such assignment shall
be effective until such time as the assignee or sublessee agrees in
writing (i) to be bound by all of the terms and conditions contained in
this Lease, including, but in no way limited to, the permitted use
hereunder, and (ii) to assume all of the obligations of Lessee under this
Lease first accruing or arising on and after the effective date of such
assignment.
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24.3.
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Subject
to the terms of Section
25.1(b)(iii), Lessee shall, despite any permitted assignment or
sublease, remain directly and primarily liable for the performance of all
of the covenants, duties, and obligations of Lessee hereunder, and Lessor
shall be permitted to enforce the provisions of this Lease against Lessee
or any assignee or sublessee without demand upon or proceeding in any way
against any other person.
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24.4.
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Consent
by Lessor to a particular assignment or sublease shall not be deemed a
consent to any other or subsequent transaction. If this Lease
is assigned without the permission of Lessor, then Lessor may nevertheless
collect Rent from the assignee or sublessee and apply the net
amount collected to the Rent payable hereunder, but no such transaction or
collection of Rent or application thereof by Lessor shall be deemed a
waiver of any provisions hereof or a release of Lessee from the
performance of the obligations of the Lessee
hereunder.
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SECTION
25. QUIET
ENJOYMENT
Lessee, upon paying the specified
rental and performing the other covenants herein agreed by it to be performed,
will peacefully and quietly have, hold and enjoy the Premises for the Term
without any let, hindrance, or molestation by Lessor or any persons lawfully
claiming under Lessor, subject only to the other provisions of this
Lease.
SECTION
26. SEVERABILITY
If any clause or provision of this
Lease is illegal, invalid or unenforceable, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease will not be
affected thereby, and it is also the intention of the parties to this Lease that
in lieu of each clause
-15-
or
provision of this Lease that is illegal, invalid or unenforceable, there be
added as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
SECTION
27. ENTIRE
AGREEMENT; NO ORAL MODIFICATIONS
Lessor and Lessee acknowledge and agree
that, as between them, there are no terms, conditions, covenants, obligations,
representations or warranties, express or implied, collateral or otherwise,
forming part of or in any way affecting or relating to this Lease, except as
expressly set forth herein, and that this Lease constitutes the entire agreement
between them. This Lease may not be modified, amended, or
supplemented, except by a subsequent agreement in writing, executed by both
Lessor and Lessee or their respective permitted successors or
assigns. Lessor and Lessee shall enter into and execute a written
amendment or supplement to this Lease prior to the Commencement Date which
identifies and sets forth the missing terms and provisions in this Lease,
including, but not limited to, those in the Recitals and Section 1.6 (Premises
Size), Section 1.5 (Allowance), Section 3.1 (leased area and monthly Base Rent),
Section 3.6 (leased area and monthly Base Rent for Option Periods), Section 4.1
(Lessee’s Proportionate Share of Total Operating Expenses), Exhibit A, and
Exhibit C.
SECTION
28. APPLICABLE
LAW
This Lease shall be governed by and
construed in accordance with the internal laws of the State of Indiana, without
regard to its conflict of law provisions. The parties hereto (a)
irrevocably consent to the exclusive jurisdiction and venue of the courts of the
State of Indiana, Xxxxx County, and the United States District Court for the
Southern District of the State of Indiana, and (b) irrevocably waive any and all
objections to such consents.
SECTION
29. ATTORNEYS’
FEES
Each
party shall bear its own costs and attorneys’ fees in connection with the
negotiation and execution of this Lease. However, in the event litigation is
needed to enforce this Lease, the prevailing party, whether by lawsuit or
whether by settlement before or after any lawsuit is filed, shall be entitled to
recover its costs, expenses, and reasonable attorneys’ fees incurred in the
enforcement of this Lease, including enforcing it as a defense.
SECTION
30. ESTOPPEL,
SUBORDINATION AND NON-DISTURBANCE; MEMORANDUM
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30.1.
|
Lessee
hereby subordinates this Lease, and the rights of Lessee hereunder, to the
title and lien of any Real Estate Mortgage, Assignments of Leases, and
Security Agreement, or the like, of record as of the date hereof and/or
hereafter placed of record (hereinafter referred to as a “Mortgage”), and
to any renewal substitution, extension, or replacement thereof; provided,
however, that so long as Lessee shall not be in default under the
provisions of this Lease, this Lease shall not be terminated nor shall any
of Lessee’s rights and obligations under this Lease be disturbed by any
steps or proceedings taken by any lender in the exercise of any of its
rights under any Mortgage.
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30.2.
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In
the event of foreclosure of any Mortgage or execution of a deed in lieu
thereof, Lessee agrees to attorn to and accept the purchaser at any such
sale or grantee under a deed in lieu thereof as Lessor under this Lease
for the remaining balance of the Term of this Lease, subject to all of the
terms and conditions of this Lease. Such purchaser or grantee
shall likewise be bound to Lessee under this Lease, but in not event shall
such purchaser or grantee be liable for any act or omission of any prior
Lessor, be subject to any off-sets or defenses which Lessee might have
against any prior Lessor, or be bound by any rent which Lessee might have
paid to any prior Lessor for more than the current
month.
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30.3.
|
Upon
request of either party, a memorandum of this Lease shall be prepared and
placed of record. The requesting party shall be responsible for
all recording costs.
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SECTION
34. INTERPRETATION;
INCORPORATION
The paragraph headings herein are
solely for the convenience of reference and shall be given no effect in the
construction or interpretation of this Lease. The parties acknowledge
that each has been represented by counsel in this matter, and, for purposes of
the rule of contract interpretation that construes a document against its
drafter, the parties agree that neither party nor its counsel shall be
considered the drafter hereof. All recitals herein and exhibits,
schedules and related agreements attached hereto are incorporated herein by this
reference and expressly made a part of this Lease.
SECTION
35. APPROVALS
In the
event the approval or consent of any party is required hereunder, such approval
or consent shall not be unreasonably withheld, conditioned or delayed, unless
this Lease specifically provides otherwise.
[The
remainder of this page intentionally left blank.]
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Signed on August___, 2008 to be
effective as of August 28, 2008.
LANDLORD:
Bank
Rentals, LLC
By: /s/ Xxxxxxx X.
Xxxxx,
III
Xxxxxxx
X. Xxxxx, XX, President
TENANT:
1st
Independence Bank
By: /s/ N.
Xxxxxxx
Xxxxx
N.
Xxxxxxx Xxxxx, President/CEO
STATE OF
INDIANA )
) SS:
COUNTY OF
XXXXX )
The foregoing instrument was
acknowledged before me, a notary public, this 28th day of August,
2008, by Xxxxxxx X. Xxxxx, XX, President of the company.
Commission
Expires: 02-20-2011
/s/
Berachah Xxxxxx
Notary Public
Berachah Xxxxxx
Resident of Xxxxx County,
IN
STATE OF
INDIANA )
) SS:
COUNTY OF
XXXXX )
The foregoing instrument was
acknowledged before me, a notary public, this 28th day of August,
2008, by N. Xxxxxxx Xxxxx, President & CEO of 1ST INDEPENDENCE BANK, A
KENTUCKY BANK, on behalf of the bank.
Commission
expires: 02-20-2011
/s/
Berachah Xxxxxx
Notary Public
Berachah Xxxxxx
Resident of Xxxxx County,
IN
-18-
EXHIBIT
A
RENEWALS
The Term
of this Lease shall be extended for an additional 5 years, with automatic
renewals thereafter for additional 5 year terms unless this Lease is terminated
as provided herein. In the event of automatic renewal, the terms of
the Lease, except as specifically provided in this Exhibit B, shall remain in
full force and effect unchanged.
At any
time following the expiration of the Initial Term, either party shall have the
right to terminate this Lease upon at least six (6) months prior written notice
to the other party. In the event of a termination pursuant to this
provision, Lessee shall remove its property and signage in accordance with the
terms of Sections 14 and 19 of this Lease.
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EXHIBIT
B
INDEMNITY
AGREEMENT
