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EXHIBIT 10.8
LEASE
[Commercial Lease]
THIS LEASE, made and entered into this 12th day of April, 19__, by and
between X. XXXXXX and XXXXX X. XXXXXXXX (hereinafter called "Landlord") and
FIRST STATE BANK (hereinafter called "Tenant");
WHEREAS, both Landlord and Tenant represent they each have full right,
power and authority to make and perform the agreements herein set forth.
NOW, THEREFORE, in consideration of the rents and agreements of the
parties hereinafter set forth, Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord certain premises hereinafter referred to, all on the
terms and conditions as follows:
SECTION 1. LEASED PREMISES
The Landlord is the owner of a tract of land commonly known as THE
PRESTIGE SHOPPES (hereinafter called "Building"), located at 000 X. Xx. Xx. 000,
Xxxxxxxxx, Xxxxxxx Xxxxxx, Indiana, and being more particularly described in
Exhibit "A", attached hereto and made a part hereof. The Landlord hereby lets
and leases to the Tenant, and Tenant hereby leases from the Landlord, that
portion of Building as shown on the plot plan, marked Exhibit "B", attached
hereto and made a part hereof, such premises having a gross area of
approximately 5000 square feet. The gross area is measured from the outside of
the exterior walls and the center of interior walls. Building shall include the
entire building as shown on Exhibit "B" and the parking areas, walkways, lights
(if any), driveways and any other facilities located upon the Exhibit "A" real
estate.
The Landlord expressly reserves the right to change or modify the
facilities of the Building and any and all plans with respect to the location of
areas leased to other Tenants, but the general character of the Building shall
not be changed. The Tenant agreed that exercise of such reserved rights by the
Landlord shall not affect or change this Lease or invalidate the same so long as
the Leased Premises shall have the floor space contemplated by this agreement
and shall be the approximate location indicated by Exhibit "C" hereto. The
premises to be leased pursuant to this agreement are hereinafter referred to as
the "Leased Premises."
A. CONSTRUCTION
The Building and Leased Premises shall be constructed by Landlord in
substantial accordance with plans and specifications attached hereto and made a
part hereto and marked Exhibit "D". Landlord reserves the right to make changes
in Exhibit "D" or substitute comparable material and/or specifications so long
as Landlord does not materially reduce or affect its obligations to Tenant as
set forth in said Exhibit.
Tenant covenants and agrees to provide Landlord with finished plans and
specifications relative to Tenant's layout and design, ceiling height and
light(s) location, toilet location and size,
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color code, door(s) location, electrical and plumbing specifications and
location, and any applicable specification(s) within 30 days from the date of
this Lease. If, the Leased Premises are not ready for occupancy on or before
April 15, 1999 because of material non-performance of Landlord's obligations as
set forth in Exhibit "D" such that Tenant cannot do its own work and Landlord
has been given thirty (30) days advanced written notice stating precisely what
work needs to be completed and said claim by Tenant is valid and not corrected
within said thirty (30) days and Tenant is not in violation of the foregoing
covenants and agreement, Tenant shall have an option for a period of 15 days
thereafter to cancel and terminate this Lease by written notice to Landlord.
However, if the thirty (30) days, or any part thereof, following Tenant's Notice
to Landlord setting forth that act of material non-performance, go beyond April
15, 1999, then said date of cancellation shall be extended to coincide with that
portion of the thirty (30) days extending beyond the original date of
cancellation.
If, for any reason, Landlord is unable to deliver the Leased Premises
ready for occupancy on or before April 15, 1999 by reason of strikes, lockouts,
casualties, acts of God, shortages of labor or of materials, governmental
regulations or controls, or other similar or dissimilar causes beyond Landlord's
control, then for a period of 60 days thereafter, Landlord shall have an option
to cancel and terminate this Lease by written notice to Tenant. In the event
that either party shall have any liability in damage or otherwise to the other,
and any money deposited hereunder by Tenant shall be returned to Tenant. In the
even that neither Landlord nor Tenant shall cancel and terminate this Lease
within the respective time limit, the same shall continue in full force and
effect. Failure of the contractor or contractors to complete any buildings at
the time specified in such contract or contracts shall not give rise to any
claim by Tenant against such contractor.
Failure of Landlord to deliver possession of the Lease Premises at the
time and in the condition required by this Lease shall postpone the date of the
commencement of the term and extend the date of the expiration of the term. In
such event, for the purpose of computing the term of this Lease, the
commencement date shall be first day of the month following the first to occur
of (a) 60 days after delivery of possession, of (b) Tenant opens for business.
The parties shall affix to this lease the date reflected above which thereafter
shall be known as the Commencement Date.
B. CONDITION OF CONSTRUCTION FINANCING
This Lease and the obligation of the Landlord hereunder to construct
improvements on and to the N/A (of which the portion is the aforementioned
"Leased Premises") is conditional and dependent upon the Landlord's ability to
obtain a construction loan and mortgage commitment for the payment of the cost
of construction of said improvements. The terms and provisions of this Lease
must be approved by any such financial institution as may do such financing. If
any such financial institution should require as a condition of such financing
as Landlord may desire, any modification of the terms and provisions of this
Lease, and if Tenant should refuse to approve and execute any modifications that
are required, then the Landlord shall have the right by notice to the Tenant to
cancel this Lease. By that, such loan and mortgage commitment shall be in the
form and terms as are satisfactory to Landlord and Landlord shall have the
period of ninety (90) days from the
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date herein in which to secure such loan and mortgage commitment. However, upon
Landlord's failure to secure both of same, then and in that event, this Lease
shall become canceled and be of no force or effect and neither the Landlord nor
Tenant shall have any liability hereunder or to each other. Tenant agrees to
provide financial statements, or other information as required by Landlord's
Lender.
C. EARLY OCCUPANCY AND COMMENCEMENT DATE
1. Early Occupancy. Tenant may occupy the premises rent free for a
period of 90 days without payment of rent after Tenant is notified that the
premises are ready for occupancy for the sole purpose of performing Tenant's
work of making the installations of Tenant's trade fixtures provided that such
activities do not interfere with the completion of Landlord's construction work.
Landlord shall have no liability or responsibility for loss or damage to
Tenant's work, fixtures, equipment or other personal property installed or
placed on the premises by Tenant.
Occupancy by Tenant prior to the beginning date of the Lease term shall
be subject to the terms and conditions of this Lease during such period. By
occupying the Leased Premises and opening for business Tenant formally accepts
the same and acknowledges that they are in the condition called for hereunder.
2. Commencement Date. The Commencement Date of this Lease shall be (a)
the first day of the calendar month following thirty (30) days after the date
the premises are ready for occupancy or (b) the first day of the calendar month
following the day the Tenant shall open the Leased Premises for business,
whichever date shall occur first. The Landlord shall give a written notice to
the Tenant thirty (30) days or more prior to the date when the Leased Premises
will be ready for occupancy as hereinafter defined. During said thirty (30) days
or more prior to the Commencement Date, the Tenant shall commence and diligently
and expeditiously perform and complete the work to be performed by the Tenant as
set out and described in Exhibit "__" attached hereto. The Tenant shall open the
Leased Premises for business on or before the Commencement Date.
SECTION 2. TERM.
The Tenant shall have and hold the Leased Premises with the rights,
privileges, easements and appurtenances thereto attaching and belonging, for a
term of 5 (months)(years) beginning on the Commencement Date (hereinafter
defined) and extending for 5 (months)(years) from such date, unless sooner
terminated by the Landlord as herein provided.
SECTION 3. RENT.
Tenant shall pay to Landlord a minimum rental of Forty Seven Thousand
Five Hundred Dollars ($47,500) per year during the Term of this Lease, to be
paid in advance, in equal monthly
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installments of Three Thousand Nine Hundred Fifty Eight 33/100 Dollars
($3958.33) each, on the first day of each calendar month during the Term of this
Lease
The rental for any fraction of a month at the beginning or expiration
of this Lease shall be computed on a per diem basis, payable at the beginning of
such fractional period.
ADDITIONAL RENTAL. Beginning on the 1st anniversary date of the
commencement date of this Lease, and on each anniversary date thereafter during
the term hereof, the rental reserved in Section 3 hereof shall be increased by
an amount which reflects any increase in the "Consumer's Price Index, United
States Average - All Items and Food", published by the U.S. Department of Labor,
Bureau of Statistics,. The amount of the increased rental for such year shall be
arrived at by multiplying the rental set forth in Section 3 by a fraction, the
numerator of which shall be the Index number for the month which precedes the
applicable anniversary date, and the denominator of which shall be the Index
number for the month preceding the Commencement Date. The increased monthly
rental shall be paid in advance, in equal monthly installments on the first day
of each calendar month during the applicable year. Notwithstanding anything
herein contained which may be construed to the contrary, at no time shall the
minimum rental be less than the minimum rent set forth in Section 3 above.
ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of
a lessor amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
LATE RENT PENALTY FEE. In the event rent should not arrive at
Landlord's designated office address on the due date as specified herein, as
evidenced by the United States Mail cancellation notice on the envelope, or if
delivered by any other means according to the date received by Landlord, Tenant
shall pay an amount equivalent to five percent (5%) of the monthly Rent as a
Late Rent Penalty Fee. Said Late Rent Penalty Fee shall be sent along with late
Rent accrued in accordance with Covenants, or separately as invoiced by Landlord
within five (5) days from receipt for said invoice and shall be treated as Rent
and be subject to the provisions herein.
DISHONORED CHECK PENALTY FEE. If Tenant pays Rent due, penalties or any
other charges due herein by check, and the check is returned for "Insufficient
Funds", or otherwise dishonored Tenant shall:
(a) pay a fifty dollar ($50.00) Dishonored Check Penalty Fee, for
each and every occurrence of a dishonored check;
(b) pay the Late Rent Penalty Fee, in accordance with Paragraph 3
above; and
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(c) pay Rent, to be accepted by Landlord, only by cashier's check,
money order or cash for the balance of the Term.
All aforementioned payments shall be treated as Rent and be subject to
the provision herein.
SECTION 4. USE AND CARE OF LEASED PREMISES
USE OF LEASED PREMISES. The Leased Premises shall be used and occupied
by Tenant for Banking Business and with the written consent of Landlord for such
other lawful purposes as do not conflict with the business of other Tenants,
which consent shall not be unreasonably withheld.
USE OF COMMON AREAS, WASTE AND CONFORMANCE WITH LAWS
(a) USE OF COMMON AREAS. Tenant, its agents, employees, customers and
invitees shall enjoy full use of the common areas and parking lot
adjoining the Leased Premises. Tenant agrees to comply with
published rules of Landlord as to the use of these common areas
as may now exist or may from time to time exist.
(b) WASTE. Tenant shall commit no waste or damage upon or to the
Leased Premises nor perform any acts or carry on any practices
which may injure the Leased Premises or be a nuisance or danger
to others. Tenant shall retain control over the Leased Premises
and keep same in a neat, clean, and orderly condition and shall
conduct its business therefrom in a careful and safe manner.
DUMPSTER REQUIRED - Each Tenant to maintain an 8 cu.yd. dumpster
at the site designated by Landlord.
(c) CONFORMANCE WITH LAWS. Tenant covenants and agrees that it will
not, nor permit any person to use the Leased Premises or any part
thereof for any purpose in violation of the laws, rules,
regulations and ordinances of the Federal, State and local
governments and any agencies or subdivisions thereof as well as
of any other competent authority relating to the use of the
Leased Premises, including without limitation, matters relating
to the Environment.
SECTION 5. SURRENDER AND HOLDOVER
Upon the expiration or sooner termination of this Lease, Tenant shall
surrender to Landlord the Leased Premises, together with all other property
affixed to the Leased Premises (excepting trade fixtures) broom clean and in the
same order and condition in which Tenant received the, the effects of ordinary
wear, acts of God, casualty, insurrection, riot or public disorder excepted.
Unless an event of default as hereinafter defined has occurred and remained
uncured, Tenant shall prior to the expiration of the term remove all of Tenant's
trade fixtures and personal property from the Leased Premises. Any damage to the
Leased Premises caused by such removal shall be repaired by Tenant prior to the
expiration of the term. At Landlord's option, if Tenant fails to remove such
trade fixtures and personal property then the same shall be deemed the property
of Landlord. If Tenant
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shall remain in possession of all or any part of the Leased Premises after the
expiration of the term of this Lease, with the consent of the Landlord, then the
Tenant shall be a Tenant from month to month at the same rental and subject to
all of the other applicable covenants, terms and conditions hereof.
All alterations, additions, improvements, and fixtures, including
lighting fixtures, ducts, controls diffusers, filters, or other equipment for
distribution of hearing or cooling, other than trade fixtures, which may be made
or installed by either of the parties hereto upon the Leased Premises, and which
in any manner are attached to the floors, walls or ceilings, shall become the
property of the Landlord at the termination of this Lease and shall remain upon
and be surrendered with the Leased Premises as a part thereof, without
disturbance, molestation or injury. Any linoleum or floor covering of similar
character, which may be cemented or otherwise adhesively affixed to the floor of
the Leased Premises shall be and become the property of the Landlord absolutely
upon the termination of this Lease. During the term of this Lease the Tenant
shall not remove or damage the above-describe improvements and fixtures without
the written consent of the Landlord.
SECTION 6. ASSIGNMENT AND SUBLETTING
(a) Assignment by Landlord. The Landlord may, at any time without
Tenant's consent, assign its interest in this Lease.
(b) Assignment and Subletting by Tenant.
(i) Consent Required. Tenant will not assign this Lease in
whole or in part nor sublet all or any part of the
premises, nor license concessions or lease departments
therein, without the written consent of landlord first
obtained. Consent by Landlord to any assignment or
subletting shall not constitute a waiver of the necessity
for such consent to any subsequent assignment or
subletting. This prohibition against assigning or
subletting shall be construed to include a prohibition
against the Leased Premises or any part thereof by underlet
or occupied by anybody other than Tenant, Landlord may
collect rent from the assignee, under Tenant or occupant,
and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy
or collection shall be deemed a waiver of this covenant, or
the acceptance of the assignee, under Tenant or occupancy
as Tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant
herein contained. Notwithstanding any assignment or
sublease, Tenant shall remain fully and primarily liable on
this Lease and shall not be released from performing any
part of the terms, covenants and conditions of this Lease.
(ii) Special Requirements When Tenant is a Corporation. If at
any time during the term of this Lease, Tenant is a
corporation (either as the named Tenant
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herein or by virtue of an assignment pursuant to the terms
and conditions of this Lease), no part or all of the
corporate shares of Tenant shall be transferred by sale,
assignment or operation of law so as to result in a change
of the existing effective voting control of Tenant by the
person or persons owning a majority of said corporate
shares without Landlord's consent.
SECTION 7. ALTERATIONS, SIGNS AND MAINTENANCE OF LEASED PREMISES
A. ALTERATIONS
No remodeling, additions, alterations, structural changes,
installations, nor any painting (hereinafter in this paragraph collectively
referred to as "WORK") shall be performed in or on Premises by Tenant without
Landlord's prior written consent. In the event said consent is given, all WORK
shall be performed in a workmanlike manner by licensed contractors or workmen.
Tenant shall carry and shall cause its contractors or workmen to carry such
worker's compensation, general liability, personal and property damage insurance
as Landlord xxx reasonably require. Tenant is responsible for securing any
necessary permits, and certificates of final approval thereof, and shall see
that all WORK so that it does not unreasonably interfere with the rights of
other Tenants.
Tenant shall not permit any Statement of Intention to Hold Mechanic's
Lien, whether asserted under and pursuant to the Indiana Mechanic's Lien Laws or
otherwise, to become attached to or filed against the real estate or any part
hereof nor against any interest or estate therein by reason of any labor,
services, equipment or materials claims to have been performed or furnished to
or for Tenant in connection with any WORK whether with or without Landlord's
written approval. If such Statement of Intention to Hold Mechanic's Lien shall
be filed, Landlord shall:
(a) have the right to compel the prosecution of an action for the
foreclosure of such Mechanic's Lien by the lienor. If such
Statement of Intention to Hold a Mechanic's Lien shall be filed
and action commenced to foreclose the lien, Tenant upon demand by
Landlord, within ten (10) days of receiving notice, shall cause
the lien to be released by filing of a written undertaking with a
surety approved by the Court and by obtaining an Order from the
Court releasing the property from such a line; and/or
(b) have the right, but no obligation to pay the amount of such lien
to cause its release, and such amount shall be considered
additional Rent to be paid to it by Tenant on demand, and subject
to the provisions herein, with interest at eighteen percent (18%)
per year, or the maximum amount then allowed by any Indiana Usury
Laws, from the day of recording of lien.
Nothing in the Lease shall be deemed or construed to constitute a
consent to or request to any party for the performance of any labor or services
or the furnishing of any materials for WORK for
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Building or Premises nor to giving Tenant the right or authority to contract
for, authorize or permit the attaching of a valid Mechanic's Lien.
Tenant shall indemnify and hold Landlord harmless from ad against any
and all loss, damages, claims, liabilities, cost or expense, including without
limiting the generality of the foregoing, Legal Fees as described in Section
22(b) of the Lease, arising out of, or in connection with, Tenant's control or
use of the real estate, and resulting from any such liens which may be made or
filed, regardless of merit.
Any and all fixtures and equipment installed by Tenant may be removed
by it at the termination of Lease, or any extended Term thereof, provided that
Tenant shall repair any and all damage caused to Premises by the removal of any
such fixtures and equipment, restore the condition of Premises to the condition
in which it existed on Commencement Date, ordinary wear and tear excepted, and
provided that Tenant be no in default in the performance of any covenants
herein. All other improvements to Premises and all other fixtures attached
thereto shall be and become the property of Landlord, and remain on Premises
without compensation to Tenant.
B. MAINTENANCE AND REPAIRS
(a) Landlord's Responsibility. Landlord shall keep in good order,
condition and repair, the exterior foundations, exterior walls
(except the interior faces thereof), downspouts, gutters and roof
of the Premises, (but excluding the exterior and interior of all
windows, doors, and plate glass), excluding any damage thereto
caused by Tenant, its agents or invitees.
(b) Tenant's Responsibility. Tenant shall keep and maintain the
Premises and every part thereof, and the exterior and interior
portions of all doors, windows, and plate glass surrounding the
Premises and the store front in good order, condition and repair,
including, without limitation, all plumbing, and sewage
facilities, fixtures, interior walls, floors, ceilings, signs and
all interior building appliances and similar equipment, except
for reasonable use and wear and tear. Tenant shall also maintain,
repair, replace and be responsible for all fixtures, including
water, sewer, electrical, sprinkler (if any), heat and air
conditioning serving the Leased Premises. Tenant shall
immediately report to Landlord, in writing, any defective
condition known which the Landlord is required to repair and
failure to do so by Tenant shall make Tenant liable for the same.
C. COMMON AREA OF DEVELOPMENT
Landlord agrees to maintain parking areas, sidewalks, driveways and to
keep the common areas reasonably clear of snow and debris and to provide proper
supervision of such areas as necessary and adequately to illuminate the parking
and sidewalk areas during normal business hours. The manner in which such areas
and facilities shall be maintained and the expenditure therefor shall
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be at the sole discretion of the Landlord, and the use of such areas and
facilities shall be subject to such reasonable regulations as the Landlord shall
make from time to time.
Tenant shall not use the common area of the Development or walks
adjacent to the Leased Premises for any display or storage or merchandise or use
such common areas in any way that would interfere with the use of such areas by
the public or others without the express written consent of the Landlord.
Tenant agrees to pay upon demand, in addition to the rent set forth
herein, a proportionate share of the cost of the operation of the parking and
other common areas of the Development but excluding areas rented or occupied by
other Tenants. Such costs shall include, but not be limited to, costs for
lighting and other utilities, landscaping, cleaning, snow removal, insurance,
line painting, policing, supervision, maintenance, and repairs. Such costs of
operation and maintenance shall not include taxes, assessments or depreciation
of permanent improvements, but shall include payroll taxes of every nature paid
on account of payments made by Tenant pursuant to this Section. The
proportionate share to be paid by Tenant shall be computed on the basis of the
ratio that the gross area of the Leased Premises bears to the total gross area
of all buildings in Prestige Shoppes leased to Tenants. Tenant shall pay its
proportionate share monthly in advance (based upon a reasonable estimate of the
costs to be incurred subject to an annual adjustment when the exact costs of
Tenant's exact proportionate share are computed) but at a rate of not less than
$690.00 per month.
D. DESTRUCTION
If the Leased Premises should be damages or destroyed by fire or other
cause to such an extent that the cost of repair and restoration would exceed
thirty percent (30%) of the amount it would cost to replace the Leased Premises
in its entirety at the time such damage or destruction took place, then Landlord
shall have the right to cancel this Lease by giving Tenant notice of such
election within thirty (30) days after the occurrence of such damage or
destruction and this Lease shall terminate as of fifteen (15) days after the
date such notice is given. If Landlord fails to exercise this option to
terminate then Landlord shall at its expense promptly repair and restore the
Leased Premises to substantially the same condition they were in prior to the
damage or destruction.
If the Leased Premises should be damages or destroyed by fire or other
cause to such an extent that the costs of repair and restoration would be less
than thirty percent (30%) of the amount it would cost to replace the Leased
Premises in its entirety at the time such damage or destruction took place, then
this Lease shall not terminate and the Landlord shall at its expense promptly
repair and replace the Leased Premises to substantially the same condition they
were in prior to the damage or destruction.
If the Leased Premises are an integral part of a larger structure and
if the structure should be damaged or destroyed by fire or other cause to such
an extent that the cost of repair and restoration would exceed thirty percent
(30%) of the amount it would cost to replace the structure in its entirety at
the time such damage or destruction took place and notwithstanding that the
Leased Premises may
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be unaffected by such damage or destruction, then Landlord shall have the right
to cancel this Lease by giving Tenant notice of such election within thirty (30)
days after the occurrence of such damage or destruction and this Lease shall
terminate fifteen (15) days after the date such notice is given.
In the event the Leased Premises are damaged or destroyed the rents
herein provided, or a fair and equitable portion thereof, shall be abated until
such time as the Leased Premises are repaired and restored. The term of this
Lease shall be extended for a period equal to the period during which there has
been a complete abatement of rent. The opinion of an architect or registered
engineering appointed by Landlord as to the costs of repair, restoration or
replacement shall be controlling upon the parties. Landlord's obligation to
restore or repair does not include fixtures or improvements installed or owned
by Tenant. The provisions of this Section are not intended to limit, modify or
release Tenant from any liability it may have or for damage or destruction.
E. INDEMNIFICATION OF TENANT
In the event the Landlord elects not to rebuild under the conditions of
Sub-paragraph D(1) of this Section, then the Landlord shall indemnify the Tenant
for the unamortized cost of the Tenant's leasehold improvements by paying to the
Tenant a sum of money which shall be determined by either:
(i) The depreciated amount at which such leasehold improvements are
carried on the Tenant's books; or
(ii) The depreciated amount as determined by multiplying the original
capital cost by a fraction, the numerator of which shall be the
number of years of the Leased Term that shall not have been
expired at the time of such damage, and the denominator of which
shall be the number of years of the Leased Term of this Lease
which shall not have expired at the time of making such
expenditures:
whichever sum is the lesser, and further providing that from such sum of
indemnity shall deduct an amount equal to that which the Tenant shall have
received or be receivable from insurance carried by it on such leasehold
improvements.
SECTION 9. CONDEMNATION, DAMAGES AND COMPENSATION
(a) Condemnation. If the entire Leased Premises, or such portion
thereof as will make the remainder unsuitable for the use
permitted by this Lease, is condemned by any legally constituted
authority, or if a conveyance or other acquisition in lieu of
such condemnation is made, then this Lease shall terminate as of
the date possession is required by the condemnor. If a portion of
the Leased Premises is condemned but the remainder is still
suitable for the use permitted by this Lease, this Lease shall
not terminate but a portion of the rent for the rest of the term
shall be abated in proportion to the amount of the Leased
Premises taken.
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(b) Damages and Compensation. All compensation paid in connection
with the condemnation shall belong to and be the sole property of
Landlord, except Tenant shall be entitled to any compensation
awarded for Tenant's trade fixture, personal property, and for
moving expenses.
SECTION 10. LANDLORD'S LIEN
To secure the payment of rent and the other liabilities of Tenant
hereunder, Tenant hereby grants to Landlord a security interest in all of
Tenant's personal property and fixtures (including without limitation, Tenant's
inventory and equipment, whether now or hereinafter acquired) which is now or
hereinafter located at the Leased Premises and in the proceeds thereof,
including tort claims and insurance (all hereinafter collectively referred to as
"Collateral"). Tenant represents that the Collateral will be used primarily in
conducting a business at the Leased Premises. Tenant shall not permit the
removal of any collateral from the Leased Premises, except in the ordinary
course of Tenant's business. Tenant authorizes Landlord to file financing
statements relating to the Collateral signed only by the Landlord. Upon the
occurrence of an Event of Default, Landlord shall have all the remedies of a
secured party available under Indiana law. These remedies include, without
limitation, the right to take possession of the Collateral and for that purpose
Landlord may enter upon any premises on which the collateral, or any part of it,
may be situated and remove it and Tenant shall hold Landlord harmless from any
liability sustained thereby, except through wanton or willful misbehavior.
Landlord may require that Tenant make the Collateral available to Landlord at a
place to be designated by Landlord which is reasonably convenient to both
parties. Unless the Collateral threatens to decline speedily in value or is of a
type customarily sold on a recognized market, Landlord shall give Tenant at
least ten (10) days' prior written notice of the time and place of any public
sale thereof or of the time at which any private sale or any other intended
disposition thereof is to be made. Expenses of retaking, holding, preparing for
sale, selling and the like shall include Landlord's reasonably attorneys' fees
and legal expenses.
SECTION 11. MECHANIC'S LIEN
Tenant shall not permit any Statement of Intention to hold a Mechanic's
Lien to be filed against the Leased Premises or any part thereof nor against any
interest or estate therein by reason of labor, services or materials claimed to
have been performed or furnished to or for Tenant. If such Statement of
Intention to hold a Mechanic's Lien shall be filed, Landlord at its opinion, may
compel the prosecution of an action for the foreclosure of such Mechanic's Lien
by the lienor. If any Mechanic's Lien or notice of claim thereof is filed
against the premises with respect to work, labor, or material furnished or to be
furnished to Tenant or anyone claiming under Tenant, Tenant shall, within thirty
(30) days from the date of filing, cause the same to be withdrawn, discharged,
or removed by deposit, bonding proceedings or otherwise. If Tenant fails to do
so, Landlord may do so, and may pay any judgment received by any such lienor.
Tenant shall immediately reimburse Landlord for all amounts paid (including
expenses) pursuant to this paragraph, which amount shall be additional rent and
immediately due. Nothing in this Lease shall be deemed or construed to
constitute consent to or request to any party for the performance of any labor
or services or the
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furnishing of any materials for the improvement, alteration or repairing of the
Leased Premises; nor as giving Tenant the right or authority to contract for,
authorize or permit the performance of any labor or services or the furnishings
of any material that would permit the attaching of a valid Mechanic's Lien.
SECTION 12. INDEMNIFICATION AND RELEASE
Regardless of whether or not separate, several, joint or concurrent
liability may be imposed upon Landlord, Tenant shall indemnify and hold harmless
Landlord from and against all damages, claims and liability arising from or
connected with Tenant's control or use of the Leased Premises, including without
limitation, any damage or injury to person or property. This indemnification
shall not include any matter for which the Landlord is effectively protected
against by insurance. If Landlord shall, without fault, become a party to
litigation commenced by or against Tenant, then Tenant shall indemnify and hold
Landlord harmless. The indemnification provided by this Section shall include
Landlord's legal costs and fees in connection with any such claim, action or
proceeding. Tenant does hereby release Landlord from all liability for any
accident, damage or injury caused to person or property on or about the Leased
Premises, whether due to negligence on the part of Landlord and notwithstanding
whether such act or omissions be active or passive. Landlord and Tenant do each
hereby release the other from all liability for any accident, damage or injury
caused to person or property, provided, this release shall be effective only to
the extent that the injured or damaged party is insured against such injury or
damage and only if this release shall not adversely affect the right of the
injured or damaged party to recover under such insurance policy.
SECTION 13. INSURANCE
(a) Landlord's Improvements. Landlord, throughout the Leased Term and
any extensions thereof, shall keep the building in which the
Leased Premises are located insured against loss or damage by
fire and such other risks as are usually and customarily covered
by extended coverage endorsements for the reasonable insurable
value thereof. Landlord shall furnish to Tenant certificates
evidencing the existence of such insurance upon request. Landlord
agrees to keep in force during the term of this Lease, at its own
expense, insurance protecting against loss of building,
Landlord's rental income, sign light standards and comprehensive
general and automobile liability and personal injury coverage.
Such policy shall be a one (1) year policy commencing with the
Commencement Date. In the event the premiums are increased upon
expiration and renewal, through the original insuring company or
otherwise, for any reason whatsoever, including without
limitation, an increase in the insurable value of the
improvements, Tenant agrees to pay its pro-rata share of the
increase in such insurance. Such proration to be based on the
ratio of square footage of the Leased Premises in relation to the
total amount of leasable area.
(b) Landlord's Public Liability Insurance. Landlord agrees to procure
and maintain during the Leased Term, and any extension thereof, a
policy or policies of insurance
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written by a responsible insurance company or companies assuring
Landlord and Tenant from any and all losses, claims, demands or
actions for injury to or death of any one person to the limit of
not less that $250,000.00 and for injury to or death of more than
one person in any one accident or occurrence to the limit of not
less than $500,000.00 and for damage to property in the amount of
not less than $500,000.00, made by or on behalf of any person,
firm or corporation arising from, related to, or connected with
the conduct and operations of the Common Area, and to furnish to
Tenant, upon reasonable request, certificates evidencing the
existence thereof.
(c) Tenant's Insurance.
(i) General. This Tenant only will not do or suffer to be done,
or keep or suffer to be kept, anything in, upon or about
the Leased Premises which will contravene Landlord's
policies insuring against loss or damage by fire or other
hazards (including, but not limited to, public liability)
or which will prevent Landlord from procuring such policies
in companies acceptable to Landlord. If anything done,
omitted to be done, or suffered to be done by Tenant, or
kept or suffered by Tenant to be kept in, upon or about the
premises or other property of Landlord, in companies
acceptable to Landlord, to be increased beyond the minimum
rate from time to time applicable to the premises for the
use or uses made thereof. Tenant will pay the amount of
such increase promptly upon Landlord's demand. Tenant
agrees that nothing shall be done or suffered or any
substance kept on the premises which will operate to
increase the fire hazard or to cause insurance rates
thereon to be increased. This insurance policy shall
contain a provision requiring ten (10) days notice to
Landlord prior to cancellation.
(ii) Tenant's Contents. It is specifically understood and agreed
that Landlord shall not be liable to Tenant or to any other
person for damage, loss or injury to property resulting
from the condition of the building as existing from time to
time, fire, casualty, steam, gas, electricity, water
leakage, bursting pipes, or resulting from any and all
reasons and causes whatsoever; Landlord is hereby released
from any subrogation claims which might be asserted by
Tenant's insurance carrier with respect to loss, injury or
damage to Tenant's property or the property of other
persons, and contents on or about the Leased Premises.
(iii) Tenant's Public Liability. Tenant shall procure and
maintain during the Lease Term and any extension thereof a
policy or policies of insurance written by a responsible
insurance company or companies (which may be written to
include the Leased Premises in conjunction with other
premises owned or operated by Tenant), assuring Landlord
and Tenant from any and all losses, claims, demands or
actions for injury to or death of any one person
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to the limit of not less than $1,000,000.00, made by or on
behalf of any person, firm or corporation arising from
related to, or connected with the conduct and operation of
Tenant's business in the Leased Premises, and to furnish to
Landlord, upon reasonable request, certificates evidencing
the existence thereof. This insurance policy shall contain
a provision requiring ten (10) days written notice to
Landlord prior to cancellation.
SECTION 14. UTILITIES
(a) Utility Services to the Premises. Landlord will provide the
necessary mains and conduits to furnish water, gas, telephone,
electricity and sewer service to the premises, and Landlord shall
pay water service and sewer charges, and Tenant shall pay all
regular and ordinary charges for gas, telephone, electricity, and
other utility services used on the premises by Tenant.
The Landlord shall not be liable for damages or otherwise should
the furnishing of any service by it to the Leased Premises be
interrupted by fire, accident, riot, strike, acts of God or the
making of necessary repairs or improvements or other cause beyond
the control of the Landlord.
The Landlord shall further not be responsible or liable to the
Tenant for any loss or damage which may be occasioned by or
through the acts or admissions of persons occupying the adjoining
premises or any part of the premises adjacent to or connected
with the Leased Premises (if any) or any part of the building of
which the Leased Premises are a part or for any loss or damage
resulting to the Tenant or his property from surface water or
from burst, stopped or leaking water, gas sewer or steam pipes.
(b) Maintenance of Utility Equipment. All utility equipment including
heating plant, air conditioning, electric, gas, water and
plumbing equipment, whether installed by Landlord or Tenant,
shall be maintained and kept in proper working condition by
Tenant, except for defects in manufacture or installation of such
equipment as installed by Landlord, and also, excepting any
substantial replacement of any such equipment or units made
necessary or desirable because of deterioration, obsolescence or
inadequacy, such replacements being made by Landlord at the sole
cost and expense of Landlord. All new equipment installed by
Landlord shall be guaranteed for a period of at least one (1)
year from the commencement date of the Demised Term.
SECTION 15. TAXES
(a) Leased Premises. Landlord shall pay all real estate taxes and
special assessments levied against the building(s) and/or common
areas.
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(b) Leased Premises. Tenant agrees to pay ten (10) days before
delinquent, all taxes, general and special assessments and other
public charges levied upon or assessed against the Leased
Property and all buildings, structures, fixtures or improvements
thereon which become payable from and after April 15, 1999, until
the expiration of this Lease.
Tenant shall exhibit to Landlord from time to time, upon Landlord's
written request, official receipts evidencing payment of same prior to the
delinquent date. Any such taxes assessed against the Leased property for the tax
year in which this Lease terminated shall be equitably prorated between the
parties hereto if the end of the term of this Lease does not coincide with the
end of the tax year.
Tenant shall have the right to execute in the name of Landlords and as
their attorney-in-fact such agreement or agreements or other instrument which
may be required or permitted by law to permit the payment of such taxes or
assessments in installments. But Tenant shall not be liable to pay any
installments not due at the end of this original or any renewed term after
occupancy of the Tenant has closed.
If Tenant fails to pay any such taxes, assessments or other public
charges which it is obligated to pay as provided in this Article before the same
become delinquent, then and in such event, Landlord may pay the same, together
with any interest and penalties thereon, and the amount so paid shall be deemed
rent immediately due and payable by Tenant to Landlord on demand, together with
interest thereon at the rate of twelve percent (12%) per annum.
Anything in this Article to the contrary notwithstanding, Landlord
agrees that Tenant shall have the right, at Tenant's sole cost and expense, to
contest the legality or validity of any of the taxes, assessments or other
public charges provided to be paid by Tenant, but no such contest shall be
carried on or maintained by Tenant after such taxes, assessments or other public
charges become delinquent unless Tenant shall have duly paid the amount involved
under protest or shall procure and maintain a stay of all proceedings to enforce
any collection thereof and any forfeiture or sale of the Leased Property, and
shall also provide for payment thereof together with all penalties, interest,
costs and expenses by deposit of a sufficient sum of money or by a good and
sufficient undertaking as may be required by law to accomplish such stay.
Landlord agrees that it will, at the request of Tenant, execute or join in the
execution of any instrument or documents necessary in connection with any such
contest except bonds or undertakings.
In the event any such contest is made by Tenant, Tenant shall promptly,
upon final determination thereof adversely to Tenant, pay and discharge the
amount involved or affected by, any such contest, together with any penalties,
fines, interest, costs and expenses that may have accrued thereon.
(c) Tenant's Property. Tenant will pay before delinquent any and all
taxes, assessments, license fees and public charges levied,
assessed or imposed and which become
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payable during the term hereof, and any extension thereof, upon
Tenant's fixtures, furniture, appliances and personal property
installed or located in the Leased Premises.
(d) Other Taxes. Nothing contained in this Lease shall require Tenant
to pay any franchise, corporate, estate, inheritance, succession,
capital levy, or transfer tax of Landlord or any income, profits
or revenue tax, or any other tax, assessment, charge or levy upon
the rent payable by Tenant hereunder; provided however, that if
at any time during the term of this Lease, under the laws of the
State of Indiana or any political subdivision thereof, a tax on
rents is assessed against Landlord on the minimum rent as a
substitution in whole or in part for taxes assessed by such State
or political subdivision on land and buildings, such tax shall be
deemed to be included within the amount which Tenant is required
to pay under this Article.
(e) Taxes Escalator Clause. The parties recognize that it cannot
presently be stated or anticipated with certainty as to what tax
changes may be made in the future with respect to taxes on or
attributable to the real estate, rentals, use and occupancy, or
rights and liabilities in connection therewith, which taxes may
be payable by Landlord. It is further agreed by the parties that
it is their intention that such additional taxes shall be
Tenant's obligations to pay. It is therefore agreed that the real
estate taxes as referred to herein shall include taxes payable by
Landlord as presently imposed on real estate in Xxxxxx County,
Indiana, any addition to such taxes, any successor tax in whole
or in part on gross rental receipts or net rental receipts or any
tax attributable to rentals, or otherwise. This paragraph shall
be liberally construed in order to effectuate the intentions of
the parties hereunder.
Tenant shall reimburse Landlord for all of Tenant's proportionate share
of increased in real estate taxes on the aforesaid in the manner hereinafter set
forth. The basic tax on which no reimbursement shall be made shall be the tax
payable for the year 1998, which year shall hereinafter be referred to as the
"Base Year". Tenant's proportionate share of the increases in real estate taxes
shall be the same percentage of all such increases in real estate taxes over the
amount of taxes payable for the Base Year as the percentage of Tenant's Leased
Premises gross area bears to the total building gross area. In the event that
the increase in the amount of such tax payable is because of an increase in
assessed valuation, Tenant shall have the right to appeal or contest such
increased assessment if it should desire to do so. Landlord agrees to execute
any and all documents necessary to authorize lessee to take any such action to
appeal or contest the assessed valuation placed upon the Leased Premises in the
name of Landlord. Any cost or expense, or any penalties that may be incurred as
a result of any such appeal or contest of the amount of the assessed valuation
shall be borne by Tenant. Any reimbursement due shall be payable within thirty
(30) days after certification of Tenant by Landlord of the amount required with
sufficient date on the calculation thereof to permit verification of the amount
due by Tenant.
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SECTION 16. EVENTS OF DEFAULT BY TENANT
(a) Any of the following shall be deemed an Event of Default.
(1) Failure of Tenant to pay any rental due hereunder within
five (5) days after the same shall be due;
(2) Any failure to perform any other of the terms, conditions
or covenants of this Lease to be observed or performed by
Tenant for more than thirty (30) days after written notice
of such default shall have been given to Tenant;
(3) If Tenant or any agent of Tenant, shall falsify any report
required to be furnished to Landlord pursuant to the term
of this Lease;
(4) If Tenant or any guarantor of this Lease shall become
bankrupt or insolvent, or file any debtor proceedings or
take or have taken against Tenant or any guarantor of this
Lease in any court pursuant to any statute either of the
United States or of any State, a petition in bankruptcy or
insolvency or for reorganization or for the appointment of
a receiver or trustee of all or a portion of Tenant's or
any such guarantor's property.
(5) If Tenant or any such guarantor makes an assignment for the
benefit of creditors, or petitions for or entered into an
arrangement;
(6) If Tenant shall abandon said premises; and
(7) If Tenant suffer this Lease to be taken under any writ of
execution.
(b) Default by Landlord. If Landlord shall default in the performance
of any of the covenants, duties or services herein agrees to be
observed or performed by Landlord and fails to cure such default
within thirty (30) days of written notice thereof from Tenant to
Landlord specifying the nature of said default, Tenant may, but
shall not be obligated to, perform or engage other to perform
same and may deduct reasonable costs from the lease rentals,
including penalties imposed by law and paid by Tenant, incurred
by Tenant in curing Landlord's default.
Limitation of Landlord Liability. Anything to the contrary herein
contained notwithstanding, if Landlord, its successors and
assigns, is a mortgagee, an individual, a joint venture, a
tenancy in common, a firm or partnership, general or limited, it
is specifically understood and agreed that there shall be
absolutely no personal liability on the part of the members of
such firm, partnership or joint venture with respect to any of
the terms, covenants, conditions and provisions of this Lease,
and Tenant shall look solely to the equity of Landlord, its
successors and assigns in
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the Exhibit "A:" for the satisfaction of each and every remedy of
Tenant in the event of any breach of Landlord, its successors and
assigns, or any of the terms, covenants, conditions and
provisions of this Lease to be performed by Landlord, such
exculpation of personal liability to be absolute and without any
exception whatever.
(c) Landlord's Remedies - Tenant Defaults
(1) Upon the occurrence of any Event of Default Landlord may,
at its option, in addition to any other remedy or right it
has hereunder or by law:
(i) Re-enter the Leased Premises, without demand or
notice, and resume possession by action in law or
equity or by force or otherwise and without being
liable in trespass or for any damages and without
terminating this Lease. Landlord may remove all
persons and property from the Leased Premises and
such property may be removed and stored at the cost
of Tenant.
(ii) Terminate this Lease at any time upon the date
specified in a notice to Tenant. Tenant's liability
for damages shall survive such termination. Upon
termination such damages recoverable by Landlord from
Tenant shall, at Landlord's option, be either an
amount equal to "Liquidated Damages" or an amount
equal to "Indemnity Payments".
"Liquidated Damages" means an amount equal to the
excess of the rentals provided for in this Lease
which would have been payable hereunder by Tenant,
had this Lease not so terminated, for the period
commencing with such termination and ending with the
date set for the expiration of the original term
granted (hereinafter referred to as "Unexpired
Term"), over the reasonable rental value of the
Leased Premises for such Unexpired Term.
"Indemnity Payments" means an amount equal to the
rent and other payments provided for in this Lease
which would have become due and owing thereunder from
time to time during the Unexpired Term plus the cost
and expenses paid or incurred by Landlord from time
to time in connection with:
(a) Obtaining possession of the Leased Premises;
(b) Removal and storage of Tenant's or other
occupant's property;
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(c) Care, maintenance and repair of the Leased
Premises while vacant;
(d) Reletting the whole or any part of the Leased
Premises;
(e) Repairing, altering, renovating, partitioning,
enlarging, remodeling or otherwise putting the
Leased Premises, either separately or as part
of larger premises, into condition acceptable
to, and reasonably necessary to obtain new
lessees; and
(f) Making all repairs, alterations and
improvements required to be made by Tenant
hereunder and of performing all covenants of
the Tenant relating to the condition of the
Leased Premises, less the rent and other
payments, if any, actually collected and
allocable to the Leased Premises or to the
portion thereof relet by Landlord. Tenant shall
on demand make Indemnity Payments monthly and
Landlord can xxx for all Indemnity Payments as
they accrue.
(iii) Without terminating this Lease, relet the Leased
Premises without the same being deemed an
acceptance of a surrender of this Lease or a waiver
of Landlord's rights or remedies and Landlord shall
be entitled to Indemnity Payments, as heretofore
defined, from Tenant. Any reletting by Landlord may
be for a period equal to or less than, or extending
beyond the remainder of the original term, or for
the whole or any part of the Leased Premises,
separately or with other premises or for any sum,
or to any lessee or for any use Landlord deems
appropriate.
(2) Upon the occurrence of any of the following:
(i) The filing of a voluntary petition in bankruptcy
Tenant.
(ii) The filing of a petition or answer by Tenant seeking
a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or other
relief of the same or different kind under any
provision of the Bankruptcy Act.
(iii) An adjudication of Tenant as a bankrupt or insolvent.
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(iv) The appointment of a trustee, receiver, guardian,
conservator or liquidator of Tenant with respect to
all or substantially all of its property.
This Lease shall terminate ipso facto as of such occurrence and
the Leased Premises shall be surrendered as required by Section
5. Tenant's liability for damages shall survive such termination
and Landlord shall be entitled to recover an amount equal to
Liquidated Damages as defined above or 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 amount is
sought, whichever is less.
(d) Cumulative Remedies. All remedies herein are cumulative, and
given without impairing any other rights or remedies of Landlord,
and Tenant shall pay and discharge all costs, expenses, and Legal
Fees as contained in Lease that shall arise from enforcing
Covenants by Landlord.
SECTION 17. WAIVER.
The waiver by either party of any term, covenant or condition herein
contained shall be in writing, and a waiver in one instance shall not be deemed
to be a waiver of such term, covenant or condition in the future, or any
subsequent breach of the same or any other term, covenant or condition herein
contained. The subsequent payment or acceptance of rent or other performance
hereunder by Landlord or Tenant, as the case may be, shall not be deemed to be a
waiver of any preceding breach at the time of such payment or acceptance of such
rent or other performance, unless the party against whom the waiver is sought to
be enforced shall have specifically so stated in writing. No payment by Tenant
or receipt by Landlord of a different amount than the actual rent due shall be
other than on account of the earliest payments actually due, nor shall any
endorsement or statement on any check or receipt or in any letter accompanying
any check or other payment or any receipt thereafter give rise to an accord and
satisfaction and Tenant may tender or pay, and Landlord may accept and deposit
such check or payment without prejudice to either party's right to recover any
overpayment or the balance of such rent, or any damages by way of offset,
counterclaim or otherwise, or to pursue any other remedy under this Lease.
SECTION 18. QUIET ENJOYMENT
Upon payment by the Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Leased Premises for the term hereby leased without hindrance
or interruption of Landlord or any other person or persons lawfully or equitably
claiming by, through or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease.
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SECTION 19. SECURITY DEPOSIT
Tenant has deposited with Landlord the sum of One Thousand Dollars
($1,000.00), receipt of which is hereby acknowledged by Landlord. Said deposit
shall be held by Landlord, without liability for interest, as security and
conditions of this Lease to be kept and performed by Tenant during the Term. If
at any time during the Term of this Lease any of the rent shall be past due and
unpaid, or any other sum payable by Tenant to Landlord hereunder shall be past
due and unpaid, or in the event of the failure of Tenant to keep and perform any
of the other terms, covenants and conditions of this Lease to be kept and
performed by Tenant, then the Landlord at its option may appropriate and apply
the entire deposit, or so much thereof as may be necessary, to pay such past due
rent or other sums or to compensate the Landlord for loss or damage sustained or
suffered by Landlord due to such breach on the part of Tenant. Should the entire
deposit, or any portion thereof, be appropriated and applied by Landlord for the
payment of overdue rent or other sums due and payable to Landlord by Tenant
hereunder, then Tenant shall, upon the written demand of Landlord forthwith
remit to Landlord a sufficient amount in cash to restore said security to the
original sum deposited, and Tenant's failure to do so within five (5) days after
receipt of such demand shall constitute a breach of this Lease. Should Tenant
comply with all of said terms, covenants and conditions and promptly pay all of
the rent herein provided for as it falls due, and all other sums payable Tenant
to Landlord hereunder, the said deposit shall be returned in full to Tenant at
the end of the Term of this Lease, or upon the earlier termination hereof.
Landlord may deliver the funds deposited hereunder by Tenant to any purchaser of
Landlord's interest in the Leased Premises, in the event that such interest be
sold, and thereupon, Landlord shall be discharged from any further liability
with respect to such deposit.
SECTION 20. SUBORDINATION AND TENANT'S RIGHT OF NON-DISTURBANCE. RE:
MORTGAGES This Lease shall be subject and subordinate to all renewals,
modification, consolidations, replacements and extensions of any mortgages now
affecting, or any new mortgages hereafter placed upon the Demised Premises, or
any subsequent renewals, modifications, consolidations, replacements or
extensions of said mortgages; and to any purchase money mortgage which Landlord
may take back as part of the consideration for any bona fide sale by Landlord of
the Demised Premises, and to all renewals, modifications, replacements,
consolidations or extensions thereof; provided, however, all such mortgages
shall recognize this Lease and shall leave Tenant's right of possession, use and
occupancy undisturbed if Tenant is not then in default under this Lease. Subject
to Tenant's right of non-disturbance, no instrument or act on the part of Tenant
shall be necessary to effectuate the subordination herein provided for. Tenant
will, nevertheless, execute and deliver such further instruments subordinating
this Lease to the lien of any such mortgages as may be desired by the mortgagee,
subject to the foregoing right of non-disturbance. Notwithstanding Tenant's
obligation to execute appropriate instruments under this paragraph, Landlord is
hereby irrevocably appointed the attorney-in-fact for Tenant to execute such
instruments.
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SECTION 21. ACCESS TO LEASED PREMISES.
Landlord's Right to Entry. Landlord or Landlord's agents shall have the
right to enter the Leased Premises at all times to examine the same, and to show
them to prospective purchasers or Tenants of the building, and to make such
repairs, alterations, improvements or additions as Landlord may deem necessary
or desirable, and Landlord shall be allowed to take all material into and upon
said premises that may be required therefore without the same constituting an
eviction of Tenant in whole or in part and the rent reserved shall in no way
xxxxx while said repairs, alterations, improvements or additions are being made,
by reason of loss of interruption of business of Tenant, or otherwise. During
the three (3) months prior to the expiration of the term of this Lease, or any
renewal thereof, Landlord may exhibit the premises to prospective Tenants or
purchasers, and place upon the premises the usual notices "To Let" or "For
Sale", which notices Tenant shall permit to remain thereon without molestation.
Nothing herein contained, however, shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
maintenance or repair of the building or any part thereof, except as otherwise
herein specifically provided.
SECTION 22. GENERAL AGREEMENT OF PARTIES
1. Captions and Article Numbers. The captions and article numbers
appearing in this Lease are inserted only as a matter of convenience and are not
intended to define, limit, construe or describe the scope or intent of such
provisions. Whenever herein the singular number is used, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders.
2. Relationship of Parties. Nothing contained herein shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent, or of partnership, or of joint venture,
between the parties hereto, it being agreed that neither the method of
computation of rents nor any other provisions named herein, nor any acts of the
parties herein, shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
3. Time of Essence. It is understood and agreed between the parties
hereto, that time is of the essence in this contract and this applies to all
terms and conditions contained herein.
4. Fees and Commissions. The Tenant warrants that the Tenant has not
had any dealings with any realtor, broker or agent, in connection with the
negotiation of this Lease excepting only NONE and agrees to pay and hold the
Landlord harmless from any cost, expense or liability for any compensation,
commissions or charges claimed by any realtor, broker or agent (including, but
not limited to, those name above) with respect to this Lease and/or the
negotiation thereof.
5. Consents. Whenever provision is made in this Lease for either party
to secure the consent or approval of the other, such consent or approval shall
not be unreasonably withheld.
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6. Legal Fees and Expenses. If any legal action or proceeding is
brought for the enforcement of Lease or because of any alleged dispute,
negligence, breach, default or misrepresentation in connection with any
Covenants hereof, the successful or prevailing party shall be entitled to
recover all costs and expenses (hereinafter referred to as "Legal Fees")
incurred by it in such action or proceedings, including reasonable attorney's
fees, court costs and all expenses of investigation or otherwise, in addition to
any other relief to which such party may be entitled.
7. Advances and Interest. Upon the occurrence of any Event of Default,
Landlord may, if such default has not been cured, cure that default for the
account and at the expense of Tenant. If Landlord is curing such default is
compelled to pay or elects to pay any sum of money or do any acts which will
require the payment of any sum of money, the sum so paid or incurred shall be
reimbursed by Tenant upon demand by Landlord. All sums as to which Tenant is in
default of payment shall bear interest at the rate of Twelve percent (12%) per
annum until paid.
8. Law of Indiana Governs. The laws of the State of Indiana govern the
validity, performance and enforcement of this Lease. The invalidity or
unenforceability of any provisions of this Lease shall not affect or impair any
other provision.
9. Obligation to Execute Short Form Memorandum of Lease and other
Documents. Each party to Lease shall, from time to time, upon request by other
party, execute any additional documents within ten (10) days which may
reasonably be required to effectuate the purposes of Lease. This shall include,
but not be limited to:
(a) a recordable instrument in the form of a memorandum of Lease
which shall set forth the location or description of Premises,
Term, the Options, Commencement Date, Expiration Date and other
covenants hereof;
(b) an estoppel certificate wherein either party shall provide the
other with a signed statement indicating Lease is unmodified and
in full force and effect, or modified and in full force and
effect with modifications noted. Failure to provide this estoppel
certificate gives rise to a conclusive presumption that Lease is
in force and effect, and has or has not been modified only as
described by the party requesting the letter;
(c) any and all legal documents pertaining to transfer, assignment,
sublease, or other transfer of title or rights, in whole or part,
by Landlord to another party.
Cost of document preparation and recording, if required shall be borne
by party requesting such action.
10. Complete Agreement. This Lease represents the entire agreement
between Landlord and Tenant, unless expressly stated to the contrary in writing
and signed by both parties, and supersedes all prior negotiations,
representations or agreements, either written or oral. This Lease
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may be modified, amended or supplemented only by a written instrument signed and
dated by both Landlord and Tenant.
11. Notices. Any notices to be given hereunder shall be deemed
sufficiently given when in writing and (a) actually served on the party to be
notified or (b) placed in an envelope directed to the party to be notified at
the following addresses and deposited in the United States mail by certified or
registered mail, postage prepaid:
1. If to Landlord at: 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
2. If to Tenant at:
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Such addresses may be changed by either party by written advise as to the new
address given as above provided. If there is more than one Tenant, their
obligation shall be joint and several.
12. Agreement Binding. The covenants, agreements and obligations herein
contained shall extend to, bind and inure to the benefit not only of the parties
hereto, but their respective personal representatives, heirs, successors and
assigns.
13. No Option. Submission of this Lease for examination or signature by
Tenant does not constitute a reservation or option for the Premises. This
instrument becomes effective as a Lease only upon execution and delivery by both
Landlord and Tenant.
14. Licenses, Easements. Tenant hereby grants Landlord the right to
exercise such licenses or easements in or over Premises or any portion or
portions thereof as shall be reasonably required for the installation of
maintenance of mains, conduits, pipers or other facilities to serve Building or
any part thereof, including, but not limited to, the premises of any other
Tenant thereof or to provide access to adjoining property(ies); provided,
however, that Landlord shall pay for the alteration required on Premises as a
result of any such exercise, and provided further that no such exercise shall
result in any unreasonable interference with Tenant's use, occupancy or
enjoyment of Premises as defined by Lease.
15. Keys and Locks. No additional locks shall be placed upon any door
of Premises, and Tenant shall not permit any duplicate keys to be made. If more
than two keys for any door are desired, the additional number must be procured
from Landlord and paid for by Tenant. Upon termination of Lease, Tenant shall
surrender all original and duplicate keys of the several doors and such other
things as pertain to Premises.
16. Force Majeure. If, after construction of the Premises, in the event
that either party hereto shall be delayed or hindered in or prevented from the
performance of any act required hereunder by reason of strikes, lock-outs, labor
troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war or other reason of a
like nature not the fault of the party delayed in performing work or doing acts
required under the terms
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of this Lease, then performance of such act shall be excused for the period of
the delay, and the period equivalent to the period of such delay. The provisions
of this paragraph shall not operate to excuse Tenant from prompt payment of
rent, percentage rent, additional rent or any other payments required by the
terms of this Lease, subject to rent abatement provisions of this Lease.
17. Title. Landlord warrants that they have a merchantable fee simple
title in and to the Demised Premises free and clear of all liens, easements,
restrictions and encumbrances and that they will provide Tenant, upon request,
the title proof to verify same.
18. Arbitration. In the event of difference or dispute arising between
Landlord and Tenant as to the construction of any portion of this lease, or as
to the rights or obligations of either of the parties, all such questions,
differences and disputes shall be determined by arbitration; and pending
arbitration between the parties, there shall be no cancellation or forfeiture of
this Lease.
In the event of such differences or disputes, either party may, by
written notice to the other, appoint an arbitrator. Within seven (7) days of the
sending of such notice, the other party must appoint its arbitrator. When the
two arbitrators have been appointed, they shall select a third arbitrator within
five (5) days, provided, however, that if no third arbitrator has been appointed
or agreed upon within a period of seven (7) days from the date of the
appointment of the second arbitrator, the third arbitrator may be appointed upon
application of either Landlord or Tenant by the presiding Judge of the Circuit
Court of Indiana and for the County of Xxxxxxx. Within ten (10) days after the
appointment of the third arbitrator, as provided herein, the arbitrators shall
meet and give each party hereto an opportunity to present their case, produce
witnesses and argument. The award of the majority of the arbitrators shall be
binding upon the parties hereto, and judgment may be entered thereon in any
Court having jurisdiction. Such award shall include the fixing of expense of the
arbitration and assessment of same against either or both of the parties.
19. Rules and Regulations. Attached hereto and by this reference
incorporated herein are Building Rules and Regulations which includes, but is
not limited to, exterior sign detail and limitations. Landlord shall have the
right, at any time or time hereafter, to adopt other or additional rules and
regulations as Landlord deems reasonably necessary for the safety and good order
of the Premises and in like manner Landlord shall give written notice to Tenant
of the adoption of any additional rules and regulations or amendments to any of
the Rules and Regulations attached. Tenant agrees that by the execution of this
lease to accept and agree to abide by the Building Rules and Regulations or
reasonable modifications or additions thereto during the Term of this Lease.
It is Landlord's desire to maintain within the property the highest
standard of dignity and good taste consistent with comfort and convenience for
Tenants. Any action or condition not meeting this high standard should be
reported directly to Landlord. Your cooperation will be mutually beneficial and
sincerely appreciated. The Landlord reserves the right to make such other and
further reasonable rules and regulations as in its judgment may from time to
time be needful, for the safety, care and cleanliness of the Leased Premises,
and for the preservation of good order therein.
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SECTION 23. OPTION TO RENEW. If Tenant shall comply with each of the
terms, provisions and conditions of the Lease, then Tenant shall have an option
to extend this Lease for two (2) additional consecutive terms of five years each
commencing at the expiration of the Leased Term or any extended term, subject to
the terms, covenants and conditions contained in this Lease, all of which shall
be applicable to such extension. Notice of intention to exercise any extension
above described shall be given by Tenant to Landlord in writing at least sixty
(60) days before expiration of the Leased Term or any extended term, and in
default thereof, all subsequent options to extend shall expire and shall be of
no effect.
The rent in the first year of the first year term shall be Forty-Seven
Thousand Five Hundred Dollars ($47,500) payable monthly in advance of the 1st of
each month at the rate of $3958.33 per month.
(Cost of Living Escalator)
Beginning on the 2nd anniversary date of the commencement date of this
Lease, and on each anniversary date thereafter during the renewal of the term
hereof, the rental reserved in this Lease shall be increased by an amount which
reflects any increase in the "Consumer's Price Index, United A/States Average -
All Items and Food", published by the U.S. Department of Labor, Bureau of
Statistics. The amount of the increased rental for such year shall be arrived at
by multiplying the rental set forth in introduction of this Lease by a fraction,
the numerator of which shall be the Index number for the month which precedes
the applicable anniversary date, and the denominator of which shall be the Index
number for the month preceding the Commencement Date. The increased monthly
rental shall be paid in advance, in equal monthly installments on the first day
of each calendar month during the applicable year. Notwithstanding anything
herein contained which may be construed to the contrary, at no time shall the
minimum rental be less than the minimum rent set forth in the introduction of
this Lease.
IN WITNESS WHEREOF, the parties have executed this Indenture of Lease
in several counterparts on the day and of the year first above written.
Landlord Tenant
/s/ M. Xxxxxx Xxxxxxxx FIRST STATE BANK
--------------------------------------
M. Xxxxxx Xxxxxxxx
By: /s/ Xxxxx X. Xxxxx
/s/ Xxxxx Xxxxxxxx ---------------------------------
-------------------------------------- Xxxxx X. Xxxxx, President and CEO
Xxxxx Xxxxxxxx
ATTEST:
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STATE OF INDIANA )
) SS:
COUNTY OF )
Before me a Notary Public in and for said County and State, personally
appeared _____________________________________, who acknowledged the execution
of the foregoing Lease.
Witness my hand and Notarial Seal this ____ day of ________________,
199__.
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Notary Public
My Commission Expires:
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-------------------------- Printed
County of Residence:
--------------------------
Subject to Xxxxxxx Co. Planning Comm. Approval of site Plan.
Subject to State and F.D.I.C. Branch approval.
/s/ Xxxxx X. Xxxxx, Pres. & C.E.O.
/s/ M. Xxxxxx Xxxxxxxx
This Instrument Prepared by:
Xxxxxxx Good, 7201-49
XXXXXXX, GOOD & SCAHILL
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
317/264-3636
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Exhibit "B"
[Drawing of leased space]
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