Exhibit 10.1
Lease Agreement between Ingles Markets, Inc. and Chestatee State Bank, dated
April 16, 1998
BANK SPACE AGREEMENT
THIS BANK SPACE AGREEMENT (the "Agreement"), is made and entered into as of
this ___ day of _______________, 2001, between INGLES MARKETS, INCORPORATED, a
North Carolina corporation, whose address is X.X. Xxx 0000, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attn. Real Estate Department (the "Landlord"), and CHESTATEE
STATE BANK, whose address is 0000 Xxxxxxx 00 Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000,
Attn. President (the "Bank").
WITNESSETH:
WHEREAS, Landlord is or will be operating a supermarket located at 000
Xxxxx 000 Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000, presently known as Ingles
Store #441 (the "Store"); and
WHEREAS, the Bank desires to establish and operate a retail banking and
depository facility (the "Banking Facility") in the Store on the terms and
conditions hereinafter set forth; and
WHEREAS, Landlord is willing to permit the establishment and operation of
the Banking Facility in the Store on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises set forth above and the
mutual covenants set forth below, and other good and valuable consideration, the
receipt, adequacy, and sufficiency of which are hereby acknowledged, Landlord
and the Bank agree as follows:
1. Space. Subject to the terms and conditions of this Agreement, Landlord
hereby leases to the Bank, and the Bank hereby leases from Landlord, for the
purpose of establishing and operating the Banking Facility, that certain space
more particularly described on Exhibit "A" attached hereto and by this reference
made a part hereof (the "Space"). Except as may be explicitly provided in this
Agreement, the Bank agrees to accept the Space in an "AS-IS, WHERE-IS" condition
as tendered by Landlord, and the Bank agrees that no representations with
respect to the condition of the Space and no promises to decorate, alter,
repair, or improve, the Space have been made by Landlord. Promptly upon delivery
of possession of the Space by Landlord to the Bank, the Bank shall commence and
thereafter diligently pursue to completion all of the Bank's work in the Space
in strict accordance with plans and specifications approved by Landlord prior to
the commencement of the Bank's work in the Space.
Notwithstanding anything to the contrary contained in this Agreement,
Landlord hereby reserves and shall at all times have the right, in its sole and
absolute discretion, to change the size, arrangement, or configuration of all or
any portion of the Store. In furtherance of the foregoing, as a material
inducement for Landlord's agreement to enter into this Agreement with the Bank,
Landlord shall have the right, upon delivery of not less than thirty (30) days
prior written notice to the Bank at Landlord's expense to relocate the Space to
another location in the Store comparable in size to the Space and on the same
terms and conditions as contained herein. In the event the Bank Facility shall
be relocated as provided herein, the Bank shall at Landlord's expense remove all
of its leasehold improvements from the Space and promptly and with due diligence
relocate the Banking Facility to the new location in the Store. Landlord shall
tender the new location to the Bank in substantially the same condition as the
Pace was in when first tendered to the Bank. Landlord may at its option,
terminate this Agreement, if the Bank refuses to accept said new location. The
Bank hereby acknowledges and agrees that Landlord would not have entered into
this Agreement absent the Bank's agreement to relocate the Banking Facility as
provided above.
2. Term. This Agreement shall be effective as of the date first above
written, but the Bank's obligations to pay Rent, subject to the terms of
Paragraph 3 below, as applying to the Inducement Rent obligation of Tenant to
Landlord, shall commence effective April 1, 1998 (the "Rental
Commencement Date"). The term of this Agreement shall extend for a period of
five (5) years (i.e., sixty [60] full calendar months after the Rental
Commencement Date), unless earlier terminated or later extended as hereinafter
provided.
3. Rent. Effective the Rental Commencement Date, the Bank hereby covenants
to pay to Landlord fixed guaranteed rent in the principal amount of THIRTY
THOUSAND AND NO/100 DOLLARS ($30,000.00) per year, payable in advance on a
monthly basis on the first day of each calendar month during the five (5) year
term of this Agreement in equal installments of TWO THOUSAND FIVE HUNDRED AND
NO/100 DOLLARS ($2,500.00). In addition to the fixed guaranteed rent set forth
above, Tenant agrees to pay contemporaneously with the execution of this Lease
the sum of TWENTY-TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($22,500.00) as
"Inducement Rent" for Landlord's agreement to enter into this Lease with Tenant.
The fixed guaranteed rent and Inducement Rent shall be paid without demand,
deduction, or setoff whatsoever, it being specifically agreed and understood
that the covenant of the Bank to pay fixed guaranteed rent and any other changes
required to be paid by the Bank under this Agreement is a separate and distinct
covenant of the Bank, not contingent upon the performance of any other terms or
conditions of this Agreement. Fixed guaranteed rent for any partial calendar
month during the term of this Agreement shall be prorated on a per diem basis.
As used in this Agreement, the term "Rent" or "rent" shall included fixed
guaranteed rent, Inducement Rent, and any other additional charges or sums
payable to Landlord hereunder. All Rent shall be paid to Landlord, without
demand, deduction or setoff whatsoever, at Landlord's address first above
written.
4. Security Deposit. The Bank has contemporaneously with its execution of
this Agreement deposited with Landlord the principal sum of FIVE THOUSAND AND
NO/100 DOLLARS ($5,000.00) (the "Security Deposit") which Security Deposit shall
serve as security for the full performance of every term and provision of this
Agreement by the Bank. Landlord may apply all or any part of the Security
Deposit to cure any default by the Bank hereunder, and the Bank shall promptly
restore to the Security Deposit all amounts so applied upon invoice. If the Bank
shall fully perform each term and provision of this Agreement, any portion of
the Security Deposit which has not been appropriated by Landlord in accordance
with the provisions hereof shall be returned to the Bank, without interest,
within thirty (30) days after the expiration of the term of this Agreement.
5. Use and Occupancy. During the entire term of this Agreement, as
extended, the Bank shall continuously occupy and operate the Space solely as a
Banking Facility such services or products as are customarily offered by the
Bank at its other offices. The Bank shall throughout the term of this Agreement,
as extended, maintain banking hours in the Space which are consistent with the
banking hours maintained by the Bank or other banking institutions in the
community in which the Store is located; with a minimum operating time of 40
hours per week to include Saturdays and holiday schedules as set by Bank policy.
Notwithstanding the foregoing, the Bank shall not be required to be open on New
Year's Day, Independence Day, Memorial Day, Labor Day, thanksgiving, Christmas,
Xxxxxx Xxxxxx Xxxx'x Birthday, or any other day in which the Store is not open
for business. The Bank covenants to install, in accordance with the plans and
specifications to be approved by Landlord, and continuously maintain and operate
an automatic teller machine as part of the operation of the Banking Facility;
provided, however, the Bank shall not be required to operate an automatic teller
machine solely in the event, despite its good-faith best efforts of obtain
regulatory approval, the Bank is unable to secure regulatory approval for the
operating of an automatic teller machine in conjunction with its operation of
the Banking Facility in the Space. The Bank may, but is not required to, provide
loan or safe deposit services at the Banking Facility. So long as the Bank is
operating in the Space in accordance with the terms of this Agreement and is not
otherwise in default of this Agreement, the Bank shall have the exclusive right
to provide or promote retail banking or other depository services in the Store;
it being specifically agreed and understood that the foregoing exclusive shall
solely apply to the inside of the Store and shall not apply to any property
owned by Landlord or any other party located outside of the Store. The Bank's
exclusive right hereunder to provide retail banking and other depository
services inside the Store shall not limit or restrict the right of the Landlord,
or any other operator of the Store or any licensee, consessionaire, or subleasee
of the Store, to make change, cash checks, verify checks, arrange for check
verification, sell money orders, perform or transact credit or debit card
related transactions or the like, or to transact or conduct any other commercial
or financial activity or service which it typically transacted or conducted by
such parties in the customary conduct of their business operations. The Bank
shall maintain and conduct the operation of the Banking Facility in a
First-class and proper manner. Bank shall not block or restrict the aisles or
passageways of the Store in any manner. The Bank's operation of the Banking
Facility shall be subject to such reasonable rules, regulations, limitations and
restrictions as Landlord may from time to time impose, including, without
limitation, any rules or regulations restricting the Banking Facility's hours of
operation to the same hours in which the Store is open to the general public.
Subject to the Bank's covenants set forth above, nothing in this Agreement shall
be construed as requiring that the Banking Facility be open for business on all
days and at all hours that the Store is open for business.
6. Employees. The Bank shall cause its employees to comply with all
reasonable rules and regulations from time to time designated by Landlord
pertaining to employee ingress, egress and parking. All persons employed by the
Bank in connection with the operation of the Banking Facility shall be and
remain the Banks' employees for all purposes, and the Bank shall, at its own
cost and expense, maintain workmen's compensation coverage, unemployment
compensation coverage and any other insurance which may be required by law with
respect to such employees. The Bank's employees, while working at the Banking
Facility, shall be entitled to use the toilet facilities provided by Landlord
for the convenience of Landlord's employees. The Bank shall be responsible or
all acts and omissions of its employees. The Bank's employees working in the
Space shall have the non-exclusive right to park their personal vehicles in the
general parking areas established for parking in the shopping center in which
the Store is located; provided, however, Landlord or the owner of the shopping
center shall have the right, from time to time, to designate reasonable employee
parking areas for use by the Bank's employees.
7. Non-Employee Services. It is contemplated that persons not employed by
the Bank may require access to the Banking Facility for the purpose of
servicing, maintaining and otherwise performing services in connection with the
Banking Facility and any such non-employee shall have access to the Store and
the Banking Facility during the Store's normal business hours as well as such
other times as may be mutually agreeable to Bank and Landlord.
8. Improvements. Subject to the plans and Specifications approved by
Landlord, the Bank, at its own cost and expense, will furnish all equipment and
furnishings which it deems necessary or desirable for the establishment and
operation of the Banking facility and shall pay all costs of modification of the
Space or the Store necessary for the installation of such items. Notwithstanding
any attachment or affixation, the Banking Facility and each part thereof will
be, and shall at all times continue to be, personal property, and shall not at
any time become or be deemed to be fixtures or in any other manner a part of the
Space or the Store.
9. Signs. Subject to applicable governmental approval, the Bank shall have
the right, during the term of this Agreement, as extended, to install and
display, at the Bank's sole cost and expense, those signs designated and
approved by Landlord as part of the Bank's plans and specifications for the
Space. Landlord will cooperate with the Bank, at no cost to Landlord, in the
Bank's efforts to secure all necessary approvals from third parties for the
installation and display of the Bank's signs permitted hereunder. The Bank shall
be liable for, and pay all costs associated with, the installation, maintenance,
repair, and illumination of the Bank's signs during the term of this Agreement,
as extended.
10. Maintenance. Bank shall, at its own cost and expense, take good care of
and maintain the Banking Facility in good order and repair, including without
limitation, telephone or other lines for computer/data processing and
transmission for the Banking Facility. Without limiting the generality of the
foregoing, the Bank shall, at its own cost and expense, obtain and maintain
janitorial services for the area within the Banking Facility.
11. Utilities. Landlord shall make available to the Bank, in accordance
with the plans and specifications for the Space, electrical service for hook-up
by the Bank at the Bank's sole costs and expense. The Bank shall likewise
furnish, at its sole cost and expense, all telephone and other transmission
lines required for the Banking Facility in accordance with the plans and
Specifications for the Space. All utility costs, and all maintenance and repair
costs associated therewith, shall be borne solely by the Bank.
12. Quiet Enjoyment. Landlord and the Bank each warrant to the other that
each has the requisite authority to enter into this Agreement. the Bank, by
paying the fixed guaranteed rent and other charges required to be paid
hereunder, and by performing and observing the other terms and conditions of
this Agreement, may peaceably hold and enjoy the Space with exclusive control
and possession thereof during the full term of this Agreement without
molestation by Landlord or any party claiming by or through Landlord. Except of
the Landlord's rights if termination contained herein, Landlord guarantees the
Bank quiet enjoyment of the space during the term hereof.
13. Insurance. The Bank shall maintain at its sole expense, commencing upon
the date the Bank takes possession of the Space, and continuing throughout the
term of the Agreement, as extended, commercial liability insurance covering the
Space in a combined single limit amount of not less than $1,000,000.00, naming
Landlord, the landlord and the mortgagee of the Store and the shopping center of
which the Store forms a part and any other designees of Landlord, as additional
insureds thereunder. The Bank shall also keep in force, at its sole expense,
fire and extended coverage insurance for the full replacement value of the
Bank's improvements and the Bank's property, including, but not limited to,
inventory, trade fixtures, furnishings and other personal property, naming
Landlord, the landlord and the mortgagee of the Store and the shopping center of
which the Store forms a part and any other designees of Landlord, as additional
insured thereunder. The fire and extended coverage insurance maintained by the
Bank shall be written so as to provide that the insurer waives all right of
recovery by way of subrogation against Landlord, and the landlord and the
mortgagee of the Store or shopping center of which the Store forms a part, in
connection with any loss or damage covered by the policy (the Bank for itself,
its successors and assigns, hereby waives any right of recovery against
Landlord, and the landlord and the mortgagee of the Store and the shopping
center of which the Store forms a part, and their respective successors and
assigns, by a virtue of any casualty to the Space, the Store or the shopping
center of which the Store forms a part). In addition, the Bank shall keep in
force xxxxxxx'x compensation or similar insurance to the extent required by law.
The Bank shall deliver said insurance policies or certificates thereof to
Landlord on or before delivery of possession of the Space to the Bank. The Bank
shall only use insurance carriers licensed and in good standing in the State in
which the Store is located. Should the Bank fail to effect the insurance called
for herein, Landlord may, at its option, procure said insurance and pay the
requisite premiums, in which event, the Bank shall pay all sums so expended plus
fifteen percent (15.0%) as overhead to Landlord, as additional rent, immediately
upon demand. Each insurer under the policies required hereunder shall agree by
endorsement on the policy, or by independent instrument furnished to Landlord,
that it will give Landlord at least fifteen (15) days prior written notice
before any policy or policies affecting the Space shall be altered or cancelled.
Landlord shall maintain insurance on the remainder of the supermarket space
consistent with the same terms and conditions as apply to the Bank's obligations
to provide insurance covering the Space.
14. Taxes. The Bank shall pay only such taxes as are assessed by the taxing
authority on account of its ownership of the Banking Family or which are
assessed against the rent payable by the Bank under this Agreement. Landlord
shall pay all taxes assessed by any taxing authority on account of its ownership
or operation of the Store.
15. Default. In the event the Bank (i) fails to pay all or any portion of
any sum due from the Bank hereunder or pursuant to any exhibit hereto within ten
(10) days following the giving of written notice, (ii) fails to cease all
conduct prohibited hereby immediately upon receipt of written notice from
Landlord; (iii) fails to take action in accordance with the provisions of
written notice from Landlord to remedy the Bank's failure to perform any of the
terms, covenants and conditions of this Agreement; (iv) fails to conduct
business in the Space as herein required; (v) commits an act in violation of
this Agreement which Landlord has previously notified the Bank to cease more
than once in any twelve (12) month period; (vi) commits waste to the Space, or
(viii) is otherwise in breach of the Bank's obligations hereunder and shall not
have commenced to cure such default within ten (10) days following written
notice form Landlord; then the Bank shall be in default hereunder and Landlord
may, at its option and without further notice to the Banks, terminate the Bank's
right to possession of the Space and without terminating this Agreement,
re-enter and resume possession of the Space and/or declare this Agreement
terminated and may thereupon in either event remove all persons and property
from the Space, with or without resort to process of any court, either by force
or otherwise. Notwithstanding such re-entry by Landlord, the Bank hereby
indemnifies and holds Landlord harmless from any and all loss or damage which
the Bank may incur by reason of the termination of this Agreement and/or the
Bank's right to possession hereunder. In no event shall Landlord's termination
of the Agreement and/or the Bank's right to possession of the Space abrogate the
Bank's agreement to pay rent for the full term of this Agreement, as extended.
Following re-entry of the Space by Landlord, the Bank shall continue to pay all
Rent as it becomes due under the terms of this Agreement, or at Landlord's
option, all Rent for the balance of the term of the Agreement, or any extension
thereto, shall be deemed immediately due and payable by the Bank to Landlord,
together with all other expenses incurred by Landlord in regaining possession,
including, without limitation, reasonable attorney's fees and costs of
litigation. Nothing contained herein shall be construed to limit Landlord's
obligation under Georgia law or otherwise to mitigate damages.
The various rights and remedies herein granted to Landlord shall be
cumulative and in addition to any other rights or remedies which Landlord may be
entitled to at law or in equity. The exercise of one or more rights or remedies
of Landlord shall not impair Landlord's right to exercise any other right or
remedy. In all events, Landlord shall have the right, upon notice to the Bank,
to cure any breach by the Bank, at the Bank's sole cost and expense, and the
Bank shall reimburse Landlord for such costs and expenses plus fifteen percent
(15%) as overhead, immediately upon demand. The Bank hereby agrees to apply all
reasonable attorney's fees and costs of litigation associated with any
collection efforts or other enforcement actions required by Landlord under this
Agreement resulting from a default or other breach by the Bank hereunder.
16. Termination. Landlord shall have the absolute and unilateral right to
terminate this Agreement, upon thirty (30) days prior written notice to the
Bank, if the Store is no longer to be utilized as a supermarket or in the event
Landlord shall no longer operate in the Store. Upon any termination of this
Agreement, the Bank shall immediately, at its sole cost and expense, (i) remove
any and all alterations, additions or improvements made to the Space and broom
clean the Space, (ii) restore the Space to as good a condition as it received
same from Landlord, loss or damage by fire and ordinary wear and tear for
reasonable use excepted, and (iii) surrender peaceful possession of the Space to
Landlord.
17. Damage. Landlord shall have the right, upon thirty (30) days prior
written notice to the Bank, to terminate this Agreement in the even the Store is
damaged by fire or other casualty and Landlord elects not to repair and restore
the Store for use as a supermarket. If Landlord should elect to repair or
restore the Store for use as a supermarket, then upon delivery of the Space to
the Bank in the condition in which the Space was first delivered to the Bank for
the Bank's work therein, in accordance with the approved plans and specification
(subject, however, to applicable governmental requirements), the Bank shall
replace all work and improvements originally installed or performed by the Bank
(subject, however, to all applicable governmental requirements) at the Bank's
sole costs and expense. Rent shall xxxxx from the date of casualty until the
earlier to occur of forty-five (45) days after the Space is delivered to the
Bank for the Bank's work therein, or the date the Bank reopens for business in
the Space. No Rent shall xxxxx and no action shall be required to be taken by
Landlord or the Bank in the event the Bank is not required to close in the
Space.
18. Condemnation. If any portion of the Space, or any portion of the Store
or the shopping center is taken by condemnation to the extent that the Store
shall no longer be used as a supermarket, then this Agreement shall
automatically terminate as of the date possession is taken by the condemning
authority. No award for any total or partial taking shall be apportioned, and
the Bank hereby unconditionally assigns to Landlord any award which may be made
in such taking or condemnation. Rent shall not be reduced in connection with a
taking by condemnation which does not result in a termination of this Agreement
as provided above.
19. Lease or Mortgage. This Agreement is and shall be subject to any lease
or mortgage now upon the Store or to any lease or mortgage hereinafter entered
into respecting other Store. The Bank shall, upon request of the Landlord,
execute and all instruments necessary to evidence this subordination of this
Agreement to any such lease or mortgage, but any such instrument shall not
constitute, subject to the termination rights of Landlord set forth in Section
17 above, a waiver of any rights or obligations flowing form Landlord to the
Bank under this Agreement. Attached to this Agreement as Exhibit "b" are assents
to this agreement executed by all owners, mortgagees, or others having an
interest in the space superior to the Bank.
20. Renewals. So long as at the time of its election to renew the term of
this Agreement or at the commencement of the renewal term the Bank is operating
in the Space in accordance with the terms of this Agreement and is not otherwise
in default of any of the terms of this Agreement to be performed by the Bank,
the Bank may renew the term of this Agreement, by delivery of not less than one
hundred eighty (180) days written notice prior to the end of the initial term
and any renewal term to Landlord (time being of the essence), for two (2)
additional periods of five (5) years each upon the same terms and conditions as
the initial five (5) year terms and conditions as the initial five (5) year term
of this Agreement, except (i) the fixed guaranteed rent payable by the Bank
during: (yy) the first five (5) year renewal period shall be THIRTY-SIX THOUSAND
AND NO/100 DOLLARS ($36,000.00) per year payable in equal monthly installments
of THREE THOUSAND AND NO/100 DOLLARS ($3,000.00) and (zz) the second five (5)
year renewal period shall be FORTY-TWO THOUSAND AND NO/100 DOLLARS ($42,000.00)
per year payable in equal monthly installments of THREE THOUSAND FIVE HUNDRED
AND NO/100 DOLLARS (3,500.00), and *ii) the Bank shall not have the right to
renew the term for the second five (5) year renewal period if the Bank had not
previously exercised it renewal right for the first five (5) year renewal period
as provided above, and other than as set forth above, the Bank shall have no
further right to renew or extend the term of this Agreement.
21. Assignment. This Agreement and the rights granted hereunder shall not
be assigned, or the Space sublet, in whole or in part by the Bank, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Landlord hereby consents to any corporate reorganization, merger or
consolidation to which the Bank may be a party in the future and acknowledges
that the resulting banking corporation after any such reorganization, merger or
consolidation, whether having Bank's charter or not, shall be entitled to all of
the rights of Bank under this Agreement. In connection with any assignment or
subletting permitted under this Agreement, (i) the Bank shall in all events
remain principally and primarily liable for the full and prompt performance of
each and every term of this Agreement to be performed by the Bank, (ii) any
permitted assignee or subleasee shall assume, in a writing acceptable to
Landlord in its reasonable judgment, all of the obligations of the Bank under
this Agreement, and (iii) no consent to any assignment or subletting by Landlord
shall be deemed to consent to any other assignment or subletting proposed in
connection with the Space, nor shall the acceptance of Rent by Landlord be
deemed a waiver of any right or remedy of Landlord hereunder.
22. Security. The Bank shall be solely responsible for providing security
for the Banking Facility and the Bank acknowledges that Landlord is not an
insurer of the Banking Facility and that Landlord does not undertake to provide
any security for the Banking Facility. Subject to reasonable rules and
regulations of Landlord, the Bank shall have the right to have a security guard
in the Store at all times and any such security guard shall be and remain an
employee or contractor of the Bank only.
23. Entire Agreement. The parties hereto agree that this Agreement sets
forth all the premises agreements and understanding between them with respect to
the Bank's leasing of the Space and its establishment and operation of the
Banking Facility. There are no other promises, agreements or understandings,
either oral or written between the Bank and Landlord regarding such matters. Any
amendment of or modification to this Agreement shall not be binding unless such
amendment or modification is reduced to writing and signed by both parties.
24. Sharing. Bank shall have the right, at its option to permit one or more
other banking or depository institutions, including savings and loan
associations or credit unions, to share the use of any automated teller machine
installed by the Bank in the Banking Facility in accordance with the terms of
this Agreement; provided, however, that any such sharing shall not relieve the
Bank of any of its duties or obligations under this Agreement.
25. Headings. Section headings used in this Agreement are for convenience
of reference only and do not constitute a substantive part of this Agreement.
26. Severability. Each provision contained in this Agreement shall be
independent and severable from all other provisions contained herein and the
invalidity of any one provisions shall in no way affect the enforceability of
the other provisions of this Agreement.
27. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State in which the Store is located.
28. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective transferees, successors and assigns of the Bank and
Landlord, including without limitation, any banking corporation that succeeds to
the rights of Bank as a result of any merger, consolidation or other corporate
reorganization.
29. Notices. All notices required hereunder shall be deemed given when
delivered personally or when deposited in the United States mail, registered,
return receipt requested, postage prepaid, and addressed to the party to whom it
is directed at its respective address first above written.
30. Terminology. All singular terms used in this Agreement shall include
the plural, and vice versa, and all pronouns used herein shall be deemed to
include all genders.
31. Consultant. During the term of this Agreement, the Bank may retain the
services of an outside consultant reasonable acceptable to Landlord to assist
the Bank in establishing, operating and marketing the Banking Facility in a
manner which is compatible with the operation and marketing of the Store.
32. Bankruptcy.
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(a) For the purpose of this Agreement, bankruptcy of theBank shall mean and
include any one or more of the following events or conditions:
(i) The Bank is adjudicated a bankrupt;
(ii) the Bank is found to be insolvent in and proceedings other than
bankruptcy;
(iii) A receiver is appointed for Bank or a major part of the Bank's
property and such receivership is not vacated and discharged
within sixty (60) days;
(iv) the Bank makes an assignment for the benefit of its creditors;
(v) the Bank shall seek any reorganization, arrangement, composition,
readjustment, compromise, or similar debtor relief with respect
to its debts or obligations under any federal or state
bankruptcy, insolvency, or debtor relief statute;
(vi) the Bank's interest hereunder shall belevied upon or sold under
execution or other legal process;
(vii) the Bank is closed or taken over by a Regulatory Agency; or
(viii)the Bank, whether voluntarily or involuntarily, takes advantage
of any debtor relief proceedings under any present or future law.
(b) Subject to the terms and conditions of subsection (c) of this Section
of the Agreement, in the event of the bankruptcy of the Bank, Landlord, at any
time after the occurrence of the bankruptcy and during the continuation of the
bankruptcy and on thirty (30) days notice to Bank and to Bank's legal
representative (which shall include a trustee in bankruptcy, receiver, or other
like officer), if any, may terminate this Agreement and retake possession of the
Space.
(c) In the event Bank is closed or taken over by any Regulatory Agency or
bank supervisory authority, Landlord may terminate this Agreement only with the
consent of such agency or authority and any such agency or authority shall in
any event have the election either to continue or terminate this Agreement.
Provided, that in the event this Agreement is terminated, the maximum claim of
Landlord for damages or indemnity for injury resulting from the rejection or
abandonment of the unexpired term of the Agreement shall in no event be in an
amount exceeding the Rent reserved by this Agreement, without acceleration, for
the year next succeeding the date of the surrender of the Space to Landlord, or
the date of re-entry of the Landlord, whichever first occurs, whether before or
after the closing of the Bank, plus an amount equal to the unpaid Rent accrued,
without acceleration up to such date.
33. Late Charges. All Rent not paid when due shall bear interest at the
highest legal rate not to exceed eighteen percent (18%) per annum calculated
from the due date of such Rent. The Bank shall, in addition, pay as additional
rent a fee of $50,000 for processing of late payments.
34. Accord and Satisfaction. No payment by the Bank or receipt by Landlord
of a lesser amount that the charges herein stipulated shall be deemed to be
other than on account of the earliest stipulated charges, nor shall any
endorsement or statement on any check or letter accompanying any check or
payment 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 any
amounts due hereunder or to pursue any other remedy provided herein.
35. Time of Essence. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
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36. Holding Over. If the Bank holds over the end of the term of this
Agreement without the written consent of Landlord, the Bank shall be deemed a
tenant-at-sufferance and the Bank shall pay to Landlord, during each month such
holdover period, as liquidated damages, a sum equal to double the highest amount
of Rent paid by the Bank to Landlord during any month of the Agreement;
provided, however, acceptance of Rent by Landlord shall not be interpreted as a
grant of permission for the Bank to continue in possession of the Space.
37. Brokers. The Bank hereby agrees to indemnify and hold Landlord harmless
from and against any and all claims for brokerage commissions by any party
claiming to have acted on behalf of the Bank in connection with this Agreement.
Landlord hereby agrees to indemnify and hold the Bank harmless from and against
any and all claims for brokerage commissions by any party claiming to have acted
on behalf of the Landlord in connection with this Agreement.
38. Relationships of Parties. Nothing contained in this Agreement shall be
deemed or construed by the parties hereto, nor by any other party, as creating
the relationship of principal and agent or of partnership or of joint venture
between the parties hereto. No estate shall pass from Landlord to the Bank, and
this Agreement shall not be subject to levy or sale.
39. Landlord's Liability. In the event of any alleged default or Landlord,
the Bank shall not seek to secure any claim for damages or indemnification by
any attachment, levy, judgment, garnishment or other security proceedings
against any property of the Landlord other than Landlord's equity in the Store.
Landlord as used herein, shall include any assignee or other successor of the
original Landlord or its successors or assigns.
40. Exhibits and Addenda. All exhibits and addenda attached to this
Agreement are by this reference incorporated into this Agreement. Insofar as
such exhibits or addenda conflict with any of the terms or provisions contained
in the text of this Agreement, the terms and provisions of such exhibit or
addenda shall govern and control.
41. This Agreement shall be executed in duplicate each of which duplicates
considered to be an original.
42. Depository account and all other banking services to Store established
with _______________ State Bank.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Agreement and affix their respective seals hereto all as of the
date and year first above set forth.
LANDLORD:
INGLES MARKETS, INCORPORATED
By:_____________________________
Xxxxxx X. Xxxxx, Chairman
Signed, Sealed, and Delivered in Attest:_________________________
our Presence this ______ day of Xxxxxxx Xxxxxxxx,
_________________________, 1998. Assistant Secretary
(Corporate Seal)
--------------------------------
Witness
--------------------------------
Notary Public
My Commission Expires __________
(Signatures Continued from Previous Page)
BANK:
CHESTATEE STATE BANK
By: /s/Xxxxxx X. Xxxxx
--------------------------
(Vice) President
Attest: Xxxxxx Xxxxxx
----------------------
(Asst.) Secretary
(BANK SEAL)
Signed, Sealed and Delivered in our presence this 16th day of April, 1998.
---------------------------------
Witness
---------------------------------
Notary Public
My Commission Expires_____________
