Exhibit 10.14 - Lease Agreement with Al Josam Dixieland, LLC
LEASE
This Lease, made effective February 26, 2003, is by and between AL
JOSAM DIXIELAND, L.L.C., a Kentucky limited liability company ("Lessor"),
and COMMUNITY BANK SHARES OF INDIANA, INC. AND/OR COMMUNITY BANK OF
KENTUCKY, INC. ("Lessee"), Lessor and Lessee hereby agree as follows:
1. Demised Premises:
Subject to the satisfaction of the conditions precedent set forth in
Sections 32 and 33 below, Lessor hereby demises and leases to Lessee, and
Lessee hereby leases from Lessor, the real property described on Exhibit
A, attached hereto and made a party hereof (the "Real Property"), which
includes that certain building containing approximately 2,630 square feet
of gross building area and all other improvements located thereon, all of
which is located at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxxxx (collectively, "Premises"), together with all right, title and
interest in those certain easements and rights appertaining thereto,
including without limitation the parking lot constituting a part of the
Premises. Lessee, its employees, agents, contractors, invitees, and
licensees shall have a non-exclusive easement for uninterrupted pedestrian
and vehicular passage over, and parking on, the common areas, if any, of
the Premises and Lessee is hereby granted the right to use all of the
rights and easements appurtenant if any, to the Premises (collectively the
"Common Areas") for so long as this Lease is in effect.
2. Term of Lease:
Lessee will have and hold the Premises for a term of Fifteen (15) years
beginning on July 1, 2003 (the "Commencement Date") and ending on June 30,
2018, with an option to renew for One (1) period of Fifteen (15) years as
more specifically provided in Section 6 below.
3. Rent:
Lessee covenants to pay to Lessor at its notice address, or at such place
or to such person as Lessor may designate in writing from time to time,
monthly rent in the amount described below for the Premises ("Rent"). Rent
will be paid no later than the first day of each calendar month and shall
be prorated for any partial month.
Year One: $ 6,500.00
Year Two: $ 6,750.00
Year Three: $ 7,000.00
Year Four: $ 7,250.00
Year Five: $ 7,500.00
Year Six $ 7,700.00
Year Seven: $ 7,700.00
Year Eight: $ 7,700.00
Year Nine: $ 7,700.00
Year Ten: $ 7,700.00
--------------------------------------------------------------------------------
82
Year Eleven: $ 8,470.00
Year Twelve $ 8,470.00
Year Thirteen: $ 8,470.00
Year Fourteen: $ 8,470.00
Year Fifteen: $ 8,470.00
Each year shall consist of a period of twelve (12) months, commencing on
July 1 of a particular year and ending on June 30 of the immediately
succeeding year calendar year.
4. Termination:
The Lease may be terminated by the Lessee any time after the 10th year of
the Lease and prior to June 30, 2018 for an amount equal to the then
unpaid principal balance of the First Mortgage Loan, as such term is
defined in Section 8.3 below. owed by Lessor to Lessee, any of its
affiliated banks, or to any other financial institution.
5. Triple Net Lease:
Lessor and Lessee expressly acknowledge and agree that this Lease is a
"triple net lease" and, accordingly, the rent payable to Lessor pursuant
to Section 3 and 6 of this Lease shall be an absolutely triple net return
to Lessor without reduction or abatement in any respect during the entire
term of this Lease, it being the intent of Lessor and Lessee that Lessee
shall be, for all purposes of this Section 5, the functional equivalent to
a fee simple owner of the Premises and Common Areas. Without in any way
limiting the generality of the foregoing, Lessor and Lessee expressly
acknowledge and agree that Lessee shall have the sole and exclusive
responsibility to pay during the entire term of this Lease, without
contribution by the Lessor in any respect and/or without any offset to or
reduction in the rent payable to Lessor pursuant to Section 3 and 6 of
this Lease, (a) all ad valorem real and personal property taxes now and
hereafter assessed against the Premises and the Common Area, (b) all
insurance premiums and other costs to obtain and maintain all of the
insurance required to be obtained and maintained by the Lessee pursuant to
Section 12 of this Lease, and (c) all costs and expenses to maintain,
repair and replace the Premises and the Common Areas including, without
limitation, all heating, ventilating and air conditioning and all other
mechanical systems now and hereafter located on the Real Property, all as
more specifically provided in Section 10 of the Lease.
6. Options to Extend:
Lessor hereby grants Lessee, if Lessee shall not be in default in the
performance of any obligations under this Lease, an option to extend the
term of this Lease for One (1) period (s) of Fifteen (15) years. Such
extended term shall begin on July 1, 2018 and shall end on June 30, 2033.
All of the covenants, terms, and conditions of this Lease shall remain in
full force and effect during such the extended term of this Lease except
as expressly set forth herein. The annual rent due under this Lease for
the extended term shall be increased by ten percent (10%) in each five (5)
year period based on the previous period's rental rate, with each such
increase in the rent to be effective on July 1, 2018, July 1, 2023, and
July 1, 2028 and to remain effective during the five (5) year period from
and including such date. Lessee Shall be deemed to have automatically
exercised its option to extend the term of this Lease for the renewal term
of fifteen (15) years unless Lessee shall, not less than one hundred
twenty (120) days prior to the expiration of the original term of this
Lease, give written notice to Lessor confirming that this Lease shall
expire on the expiration date of the original term of this Lease. In no
event shall the original term and extended term of this Lease exceed
Thirty (30) years. In the event Lessee has exercised its option to extend
the term of this Lease for such fifteen (15) year period, a subsequent
default by Lessee prior to the expiration of the original term of this
Lease shall give Lessor, but not Lessee, the right to terminate this Lease
on or before the expiration date of the original term of this Lease.
--------------------------------------------------------------------------------
83
7. Commencement:
The Lease shall be executed no later than May 31, 2003 and
possession of the Premises shall occur no later than July 1, 2003 in its
"as is, where is" condition.
8. Taxes and Other Charges:
8.1 Lessee agrees to pay and discharge as punctually as and when the
same will become due and payable, without penalty or interest, all
real estate taxes and general assessments which accrue against the
Premises during the term of this Lease. At the expiration or
termination of the term of this Lease in accordance with its terms,
Lessee shall have no obligations for taxes or assessments thereafter
assessed, provided, nothing herein shall be construed to preclude
Lessor from seeking an award for damages that includes future ad
valorem taxes and assessments against the Premises in the event
Lessee defaults in the performance of its obligations under this
Lease.
8.2 It is expressly understood and agreed that, except for the
applicable rental tax under Kentucky law, Lessee will not be
required to pay, or reimburse Lessor for (i) any local, state or
federal capital levy, franchise tax, revenue tax, income tax or
profits tax of Lessor or any tax or impost charged or levied upon or
with respect to the Premises.
8.3 Lessee may contest any such tax, assessment, cost or expense,
imposition or charge in any manner permitted by law, in Lessee's
name, and whenever necessary, in Lessor's name, provided such tax or
assessment is only levied against the Premises and such contest dos
not result in the enforcement of the lien securing any such tax,
assessment, cost or expense including, without limitations, any tax
sale of the Premises.
9. Use of Premises:
9.1 Lessee (and its sublessees) may use the Premises for the operation
of any lawful purpose.
9.2 In addition to the foregoing, Lessee agrees, at its sole cost and
expense, to comply with all laws, orders, rules, regulations and
requirements of all governmental or other authorities having
jurisdiction over its conduct of business in the Premises.
Lessee shall keep the Premises clean and free of rubbish and trash
at all times and shall store all trash and garbage in leak-proof
containers and arrange for the regular pickup of such trash and
garbage at Lessee's expense. Lessee shall not burn or bury any trash
or garbage of any kind on or about the Premises.
10. Lessee's Obligations for Maintenance:
10.1 Lessee, at Lessee's sole cost and expense,, shall keep and maintain
in first-class appearance and in good order, condition and repair as
reasonably determined by Lessor (including replacement of parts and
equipment, if necessary) the Premises and every part thereof
including all buildings and
--------------------------------------------------------------------------------
84
improvements now or hereafter located on the Real Property and any
and all appurtenances thereto wherever located, and all other
repairs, replacements, renewals and restorations, interior and
exterior, ordinary and extraordinary, foreseen and unforeseen,
including, without limitation, all maintenance, replacements and
repairs of the heating and air conditioning and all electrical
systems, sprinkler systems, walls, floor slab, floors and ceilings
and all parking, landscaping, drives and other exterior portions of
the Premises. Lessee's duty to repair shall include the duty to
replace equipment, mechanical systems and other improvements on the
Real Property whenever necessary or appropriate.
(b) Lessee shall keep and maintain the Premises in a clean, sanitary
and safe condition, well-lit and free of snow and ice, refuse,
nibble, debris, dirt and trash, and in accordance with the laws of
the Commonwealth of Kentucky and in accordance with all directions,
rules and regulations of the health officer, fire marshal, building
inspector, or other proper officials of the governmental agencies
having jurisdiction over the Premises, and Lessee shall comply with
all requirements of law, ordinances and otherwise, affecting the
Premises, all at the sole cost and expense of Lessee. At the time of
the expiration or sooner termination of the term of this Lease,
Lessee, shall surrender the Premises in good order, condition and
repair.
(c) Lessee shall not suffer or give cause for the filing of any lien
against the Premises. In the event a mechanic's lien shall be filed
against the Premises or Lessee's interest therein, Lessee shall
within thirty (30) days after receiving notice of such lien
discharge such lien either by payment of the indebtedness due to the
mechanic's lien claimant or by filing a bond (as provided by
statute) as security therefore. In the event Lessee shall fail to
discharge such lien, Lessor shall have the right to procure such
discharge by filing such bond, and Lessee shall pay the cost of such
bond to Lessor as additional rent upon the first day thereafter that
rent shall be due hereunder.
(d) Lessee, at its own expense, shall install and maintain such fire
extinguishers and other fire protection devices as may be required
from time to time by any agency having jurisdiction over the
Premises and/or by the insurance underwriters insuring the Premises.
(e) Lessee expressly waives all rights to make repairs at the
expense of Lessor as provided for in any statute or law in effect
during the term of this Lease.
(f) If Lessee does not maintain the Premises in accordance with the
terms set forth in this Section 10, Lessor shall have the right,
upon thirty (30) days prior written notice to Lessee (or such lesser
period of time, if, in Lessor's reasonable discretion, an emergency
situation exists) to enter upon the Premises and maintain such
buildings, improvements, parking, drive areas and landscaping
located on the Real Property, in accordance with the foregoing.
Lessee shall, within ten (10) days after written notice by Lessor to
Lessee, reimburse Lessor for any and all costs incurred in
connection therewith.
11. Alterations.
11.1 Lessee may make non-structural alterations and additions to the
Premises so long as the same are done in a good and workmanlike
manner and in compliance with all applicable laws.
--------------------------------------------------------------------------------
85
11.2 Title to any improvements or alterations made by Lessee will vest in
Lessor at the end of the term of this Lease,, and Lessee will
deliver such documents of conveyance, without recourse, thereof as
Lessor may reasonably request (including without limitation
assignments of any outstanding warranties), and Lessor agrees to
timely accept the Premises with such improvements and alterations.
Lessee may place such trade fixtures, personal property, machinery,
furniture, equipment and the like on the Premises as it may desire
at its own expense, all of which shall be removed by Lessee at its
sole cost and expense upon the expiration of the term of this Lease
with all damage to the Premises caused by such removal repaired and
restored to its prior condition a Lessee's sole cost and expense.
12. Insurance:.
Lessee shall maintain and procure casualty insurance with respect to the
improvements on the Premises insuring against fire, theft and extended
coverage risks (all hazards included within the term "all risks
coverage"), in an amount sufficient to prevent Lessor or Lessee from
becoming a co-insurer of any partial loss under applicable insurance
policies and in any event not less than one hundred percent (100%) of the
full replacement value (exclusive of the cost of excavation, footings,
foundations and underground utilities) of such improvements. Lessor shall
be named as an additional insured and loss payee as its interest may
appear under such casualty insurance.
Lessee shall obtain and keep in full force and effect commercial general
liability insurance against claims for bodily injury, death and/or
property damage arising out of the Premises or Common Areas, exclusive of
the personal property of the Lessee in or on the Premises, which shall
also contain contractual liability coverage, with a minimum single limit
of $1,000,000 and a combined bodily injury, death and property damage
limit per occurrence of $5,000,000.
At the other party's request, each shall furnish the other with a
certificate evidencing such insurance maintained under this Lease. All
coverages maintained by either Lessor or Lessee may include such
deductibles as either party reasonably may elect to maintain in the
ordinary course of its business.
13. Fire or Other Casualty:
Lessee covenants and agrees, except as provided herein, that in the event
of damage to any building or improvement on the Premises, or destruction
of the whole or any part thereof, by any cause whatsoever, Lessee will
proceed immediately and diligently to repair the building, improvements
and Premises. All insurance proceeds payable with respect to such damage
shall be made available to Lessee to pay the costs and expenses to repair
and restore the Premises. There shall be no abatement of Rent or
termination of this Lease not withstanding any damage to or destruction of
the Premises from any cause whatsoever.
14. Eminent Domain:
(a) In the event the Premises, or any part thereof or interest therein,
or any building or improvement thereon, is taken or condemned for a
public or quasi-public use, or is conveyed in lieu thereof (herein
referred to as a "condemnation"), the rights of the Lessor and
Lessee in respect of the
--------------------------------------------------------------------------------
86
condemnation proceeding shall be determined as provided herein. Any
condemnation allowance or award or judgment relating thereto,
allowed or awarded to the Lessor or Lessee and any interest thereon
("condemnation proceeds") will be paid as provided herein. If the
condemnation results in a non-material taking of a portion of the
Premises, the condemnation proceeds will be applied in the following
order: (i) to pay for the restoration of the affected areas of the
Premises and any personal or other property of Lessee, (ii) to
Lessor and Lessee in proportion of the fee simple interest and
leasehold interest taken or affected by the condemnation.
(b) In the event more than 25% or all of the Premises is taken in
condemnation proceedings, or any portion is taken and Lessee, in its
reasonable judgment, determines that it cannot continue to conduct
business in the Premises as contemplated under this Lease, then
Lessee may either terminate this Lease by notice to Lessor or, at
its option, retain the Premises. If the Lease is not terminated, the
condemnation proceeds for the partial taking will be payable as
provided in subsection (a) of this Section 14.. If this Lease is
terminated as a result of such condemnation, then condemnation
proceeds shall be used first to the payment of the loss of any
fixtures, personal property and moving expenses of Lessee in
connection with the condemnation and the balance to the Lessor;
provided, however, that Lessee shall be entitled to assert a claim
against the loss of its leasehold estate in the Lease as a result of
the condemnation.
(c) In the event that any portion of the Premises are taken or adversely
affected by a condemnation proceeding, then Lessee to the extent
reasonably practicable, and weather permitting, shall restore that
portion of the Premises taken or adversely affected by the
condemnation, unless Lessee elects to terminate this lease as
provided herein. All restoration work shall be done in a diligent
and good and workmanlike manner and shall be completed no later than
sixty (60) days after the occurrence of the condemnation.
15. Assignment and Subletting:
Upon Lessor's prior written consent, which shall not be unreasonably
withheld, Lessee shall be entitled to assign this Lease or to sublet all
or a portion of the Demised Premises with at least thirty (30) days prior
notice to Lessor of the name and address of the lease assignee or
sublessee, whichever the case maybe, and the nature of its business;
provided, however, that the proposed use of the Premises by the assignee
or sublessee complies with this Lease. Lessor shall not be obligated to
consent to any assignment of this Lease or sublease of the Premises if
Lessor in good faith determines that the proposed assignee or sublessee is
not a good credit risk comparable to Lessee. Notwithstanding anything
contained herein to the contrary, Lessee shall remain principally liable
for all of the obligations of Lessee under this Lease in respect of any
assignment of this Lease or sublease of the Premises or any part hereof.
Notwithstanding anything to the contrary set forth, Lessee may, in its
sole and absolute discretion and without the prior written consent or
approval of Lessor, assign, sublease, transfer, or otherwise dispose of
any or all of its interest in, to or under this Lease or in, to or under
the Premises to an "Affiliate" (as such term is hereinafter defined). For
the purposes of this Lease, the
--------------------------------------------------------------------------------
87
term "Affiliate" shall mean and refer to: (i) any person or entity which
acquires all or substantially all of the assets or the issued and
outstanding capital stock of Lessee; (ii) any corporation or other entity
resulting from any reorganization, consolidation or merger of such
corporation into Lessee or with any other entity of Lessee; or (iii) any
parent, subsidiary or affiliate corporation or entity of Lessee; provided
that, in any such event, such affiliate has a net worth, an equity to debt
ratio and a current ratio as of the date of such assignment, sublease,
transfer or other disposition not less than the net worth, equity to debt
ratio and current ratio of Lessee as of the same date. As used in the
foregoing clause, the expression "affiliate corporation or entity" shall
mean and refer to a corporation or entity that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is
under the control of, Lessee. The term "control" as used in the foregoing
provision shall mean and refer to the right and power, direct or indirect,
to direct or cause the direction of the management and policies of such
corporation.
16. Default by Lessee:
16.1 If one or more of the following events (sometimes called "Events of
Default") shall occur and be continuing:
16.1.1 Lessee defaults in the payment of any Rent or any other sums
provided to be paid hereunder and such default continues for
ten (10) thereafter; or
16.1.2 Lessee defaults in the observance or performance of any other
covenant, condition, agreement or provision hereof and Lessee
fails to remedy such default within thirty (30) days after
notice thereof from Lessor to Lessee specifying the nature of
the default (or, in the event the default cannot be cured
within such period, Lessee fails to initiate action to remedy
such default within said period and to prosecute the same to
completion with due diligence); or
16.1.3 Lessee admits insolvency or bankruptcy or its inability to
pay its debts as they may mature, or makes an assignment for
the benefit of creditors or applies for or consents to the
appointment of a trustee or receiver for Lessee, or for the
major part of its property,
Then, Lessor may enforce the provisions of this Lease and
enforce and protect the right of Lessor hereunder by a suit or
suits in equity or at law for the specific performance of any
covenant or agreement contained herein or for the enforcement
of any other appropriate legal or equitable remedy; and Lessee
shall have the right in its sole and absolute discretion to
terminate this Lease and seek monetary damages in respect of
any and all defaults under this Lease committed by Lessee.
PROVIDED, HOWEVER, that Lessee shall have 120 days to continue
to possess the Premises under this Lease as a holdover lessee
pursuant to Section 19 hereof after receipt of notice from
Lessor of termination of this Lease, so long as Lessee pays
Lessor all accrued and past due Rent as well as all Rent
during such 120
--------------------------------------------------------------------------------
88
day period all Rent owed to Lessor. PROVIDED FURTHER, upon the
occurrence and during the continuation of an Event of Default,
Lessee shall have the right, for a period of thirty (30) days
after the date of occurrence of such Event of Default, to
terminate this Lease and be relived of all further liability
under this Lease upon payment to Lessor of an amount in "good
and collected funds" equal to the sum of (a) all installments
of Rent then due and thereafter coming due in accordance with
the terms and conditions of this Lease through and including
the installment of Rent due and payable on June 1, 2013, and
(b) the unpaid principal balance of the First Mortgage Loan,
as such term is defined in Section 33 hereof, that will exist
on July 2, 2013 assuming that all payment of principal and
interest on the First Mortgage Loan have been and are made
through July 1, 2013 in accordance with the terms and
conditions of the First Mortgage Loan and no prepayments of
the unpaid principal of the First Mortgage Loan have been or
are made through July 1, 2013.
16.2 No remedy herein conferred will be considered exclusive of any other
remedy conferred by this Lease or by law, but all such remedies will
be cumulative. Every power and remedy given by this Lease may be
exercised from time to time and as often as the occasion may arise.
No delay or omission of Lessor to exercise any power, right or
remedy will impair any such power, right or remedy. No waiver by
Lessor of any breach or any covenant, agreement or provision of this
Lease will be construed or held to be a waiver of any other breach,
covenant, agreement or provision by Lessor.
17. Indemnification:
Lessee covenants and agrees to indemnify, hold harmless and defend Lessor,
its member, managers, employees, agents, attorneys, affiliates, and
assigns from and against any and all suits, claims, demands, causes of
action, damages, losses, and expenses including, reasonable attorneys'
fees, and other expenses of litigation, caused by or resulting from the
acts or omissions of Lessee or any breach by Lessee of any provision of
this Lease.
18. Quiet Possession:
Lessor covenants and agrees that Lessee, upon paying the Rent due under
this Lease and performing the other covenants herein agreed by it to be
performed, shall have the right to peacefully and quietly have, hold and
enjoy the Premises for the term of this Lease without any interference or
disruption by Lessor or any persons lawfully claiming under Lessor,
subject only to the other provisions of this Lease.
19. Holding Over:
If the Lessee remains in the Premises beyond the end of the term of this
Lease, whether the stated expiration date of this Lease or an earlier
termination of this Lease effected by Lessor upon the occurrence and
during the continuation of any Event of Default under this Lease, , such
holding over in itself will not constitute a renewal or extension of this
Lease or an exercise of any option to renew or extend the term of this
Lease or a revocation of a termination of the Lease, but in such event a
monthly periodic tenancy will arise upon the covenants and conditions
herein set forth, subject to payment of the twice the Rent by the Lessee
each month as that is payable on account of the last month of the term of
this Lease.
--------------------------------------------------------------------------------
89
20. Condition of Premises Upon Surrender:
At the expiration of the term of this Lease, Lessee will quit and
surrender the Premises, in as good a condition and repair as existed on
the Commencement Date of this Lease, reasonable wear and tear except
Lessee shall in addition be obligated to remove all of its personal
property and trade fixtures from the Premises, and, Lessee shall be
obligated to repair all damage caused by such removal.
21. Signs:
Lessee will have the right to install, alter, update or replace exterior
or interior signage on the Premises to be designed by Lessee and installed
by Lessee at its sole cost and expense. The design and installation of any
such signage will be subject to compliance with applicable laws.
22. Notices:
All notices, requests and other communications hereunder will be in
writing and will be sent by (a) personal delivery, (b) overnight courier
service that regularly maintains a record of its deliveries, charges
prepaid or (c) certified U.S. mail, postage prepaid, return receipt
requested, and addressed to the following addresses, or to such other
address of which Lessor or Lessee will have given notice to the other as
herein provided:
If to Lessor, to: Al Josam Dixieland, LLC
0000 Xxxxxxxxx Xxxx 0xx
Xxxxx
Xxxxxxxxxx, XX 00000
Attn: J. Xxxx Xxxxxxx
If to Lessee, to: Community Bank Shares of Indiana, Inc.
000 X. Xxxxxx Xx.
Xxx Xxxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxx
With a copy to: Community Bank
000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
All such notices, requests and other communications will be deemed to have
been sufficiently given for all purposes hereof on the date of delivery,
if sent by personal delivery, the day after deposit with the carrier, if
sent by overnight courier service, or upon receipt or rejection, if sent
by certified U.S. mail, return receipt requested.
23. Estoppel Certificates:
Each party hereto will, without charge and within ten (10) days after
written request, furnish to the other party hereto and to any proposed
mortgagee, purchaser, lease assignee, or sublessee, as the case may be, of
the Premises, an estoppel certificate in the form and substance reasonably
required by the requesting party. Each party hereto certifies that it has
the authority to execute this Lease and the same is binding and valid in
accordance with its terms upon each such party.
--------------------------------------------------------------------------------
90
24. Execution:
This Lease will not be binding and effective until a counterpart hereof
has been executed and delivered by the parties each to the other. This
Lease may not be modified, amended, or supplemted except by instrument in
writing.
25. Interpretation:
This Lease will bind and inure to the benefit of the parties hereto and
their respective successors or assigns. Except when the context otherwise
requires, the terms "Lessee" and "Lessor" as used herein will include any
permitted successor or assign of the original party so designated. It is
understood and agreed that this Lease has been made following negotiation
and revision by the parties and is, therefore, not to be construed against
either party because of draftsmanship. In the event of any dispute as to
the proper construction of any of the provisions of this Lease, the
provisions will be construed in accordance with the laws of the State of
Kentucky.
26. Brokerage:
Lessor and Lessee warrant, each to the other, that they have dealt with no
broker, other than Xxxxxxx X. Xxxxxxxxx, who is entitled to a commission
or fee by reason of the execution of this Lease. Lessor and Lessee will
indemnify each other from and against any and all claims for commissions
or fees by any other brokers claiming through them. Lessor agrees to pay a
commission to Xxxxxxx X. Xxxxxxxxx per a letter agreement dated February
10, 2003 unless Lessee fails to occupy the Premises, in which case no
commission shall be due.
27. Memorandum:
The parties will execute and cause to be recorded a Memorandum of this
Lease upon the written request of the other party, which memorandum will
contain only the minimum information required by law and will be
terminated of record by the parties upon the termination of this Lease,
irrespective of the reason for the termination of this Lease.
28. Access to Premises:
Lessor and its agents will have the right to enter the Premises after
seventy-two (72) hours notice to Lessee to examine the condition of same
or to show the Premises to prospective purchasers, ground lessors, or
mortgagees, except for secured areas designated by Lessee. Notwithstanding
the foregoing, Lessor shall not be required to furnish such seventy-two
(72) hours notice to Lessee in the case of an emergency situation of
impending peril to either person or property on or about the Premises.
29. No Joint Venture:
This Lease shall not be deemed or construed to create or establish any
relationship of partnership, agency, or joint venture (or any other
similar relationship or arrangement) between Lessor and Lessee.
30. Waiver:
No waiver of any of the covenants and agreements herein contained or of
any breach thereof will be taken to constitute a waiver of any other
subsequent breach of such covenants and agreements or to justify or
authorize the non-observance at any other time of the same or of any other
covenants and agreements hereof.
--------------------------------------------------------------------------------
91
31. Sever ability:
If any clause or provision of this Lease is determined by a court of
competent jurisdiction to be illegal, invalid or unenforceable, with all
appeals there from having been exhausted or waived, then and in that
event, it is the intention of the parties hereto that the remainder of
this Lease will not be affected thereby, and it is also the intention of
the parties to this Lease that in lieu of each clause or provision of this
Lease that is illegal, invalid or unenforceable, there be added as a part
of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
32. Lessee's Conditions Precedent :
The Lease shall be subject, solely to Lessee obtaining approval for the
operation of a branch bank on the Premises from the appropriate regulatory
agency (s) by May 31, 2003.
32.1 If Lessee does not receive the appropriate regulatory approvals by
May 31, 2003, then this Lease is null and void. If Lessee receives
the required regulatory approvals by May 31, 2003, this Lease shall
be automatically affective and fully enforced between Lessor and
Lessee in accordance with the terms and conditions set forth herein.
33. Lessor's Condition Precedent:
This Lease shall be subject to Lessee making to Lessor a first mortgage,
no-recourse loan in the original principal amount of Six Hundred Thousand
Dollars ($600,000.00), bearing interest at the fixed rate of 5.85%, with
level amortization of the principal and interest of such loan over a
period of Fifteen (15) years and with a stated maturity date of fifteen
(15) years from the date of such loan (the "First Mortgage Loan"). No
member or manager of Lessor shall be obligated to guarantee the payment of
all or any portion of the First Mortgage Loan. The mortgage documents to
be executed by Lessor in connection with the First Mortgage Loan shall be
commercially reasonable a and contain usual and customary terms and
conditions for a non-recourse first mortgage loan being made in connection
wit commercial real property located in Jefferson County, Kentucky.
34. Right to First Option to Provide Refinancing:
Lessor hereby grants to Lessee the first option to provide a subsequent
first mortgage loan (the"Subsequent First Mortgage Loan") to Lessor with
respect to the Premises up the stated maturity date of the First Mortgage
Loan. Lessor and Lessee shall attempt to agree upon the terms and
conditions of the Subsequent First Mortgage Loan on or before ninety (90)
days before the stated maturity date of the First Mortgage Loan. In the
event Lessor and Lessee cannot in good faith agree upon the terms and
conditions of the Subsequent First Mortgage Loan on or before ninety (90)
days before the stated maturity date of the First Mortgage, Lessor shall
have the right to solicit proposals from other financial institutions to
provide the Subsequent First Mortgage Loan to Lessor. Lessor shall give
Lessee written notice of the terms and conditions of any proposal to
provide the Subsequent First Mortgage Loan received by Lessor from any
other financial institution and which Lessor desires to accept. Lessee
shall have the right, for a period of fifteen (15) days after receipt by
Lessee of written notice of the terms and conditions of any such proposal
to provide the Subsequent First Mortgage Loan received by Lessor, to match
or improve (from Lessor's perspective) the terms and conditions of any
such proposal to provide the Subsequent First Mortgage Loan received by
Lessor. In the event Lessee fails, within such fifteen (15) day period, to
deliver to Lessor a written proposal
--------------------------------------------------------------------------------
92
to provide the Subsequent First Mortgage Loan to Lessor on the same of
better ( from Lessor's perspective) terms and conditions as set forth in
any one or more of the proposals to provide the Subsequent First Mortgage
Loan received by Lessor from other financial institutions and forwarded to
Lessee, Lessor shall have the right to obtain the Subsequent First
Mortgage Loan upon the terms and conditions set forth in any one or more
of such proposals received by Lessor and forwarded to Lessee, In such
event, Lessee shall have no claims against, or any basis to asset any
claims against, Lessor pursuant to this Section 34. In the event Lessee
delivers to Lessor, within such fifteen (15) day period, a written
proposal to provide the Subsequent First Mortgage Loan to Lessor on the
same or better (from Lessor's perspective) terms and conditions as set
forth in any or more of the proposals to provide the Subsequent First
Mortgage Loan received by Lessor from other financial institutions and
forwarded to Lessee, Lessor shall be obligated to accept such proposal
from Lessee, and in such event Lessor and Lessee shall proceed in good
faith to close the Subsequent First Mortgage Loan upon the terms and
conditions offered by Lessee on or before the stated maturity date of the
First Mortgage Loan.
35. Parking:
The Lessor shall provide the Lessee with a minimum of three (3) additional
parking spots located on the Lessor's adjacent property that will be more
fully described in the Lease Agreement.
36. Entire Agreement.
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter of this Lease and supersedes all prior
agreements between the parties relating to the subject matter of this
Lease.
--------------------------------------------------------------------------------
93
Signed effective the 21st day of APRIL, 2003.
Signed and acknowledged in the presence of: LESSOR:
/s/ XxXxx X. Xxxxxx XX XXXXX DIXIELAND, L.L.C.
-------------------------------
WITNESS
Printed Name: XxXxx X. Xxxxxx /s/ J. Xxxx Xxxxxxx
------------------ --------------------------------
Printed Name: J. Xxxx Xxxxxxx
-------------------
Title: Member
-------------------------
-------------------------------
WITNESS
Printed Name:
------------------
STATE OF:_________________________) SS:
COUNTY OF:________________________)
The foregoing instrument was sworn to and acknowledged before me, a notary
public, this __ day of __________, by _________________, __________ of AL JOSAM
DIXIELAND, L.L.C., a Kentucky limited liability company, on behalf of such
entity.
________________________________
Notary Public
--------------------------------------------------------------------------------
94
/s/ XxXxx X. Xxxxxx COMMUNITY BANK SHARES OF
------------------------------- INDIANA, INC. AND/OR COMMUNITY
WITNESS BANK OF KENTUCKY, INC. ("Lessee")
Printed Name: XxXxx X. Xxxxxx /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------ -------------------------------------
Printed Name: Xxxxxxxxxxx X. Xxxxxxxx
------------------------
Title: President/Sr. V.P.
------------------------------
/s/ Xxxxx X. Xxxxxx
-------------------------------
WITNESS
Printed Name: Xxxxx X. Xxxxxx
------------------
STATE OF: Kentucky ) SS:
-------------------------
COUNTY OF: Jefferson )
-------------------------
The foregoing instrument was sworn to and acknowledged before me, a notary
public, this 28th day of April, by Xxxxxxxxxxx Xxxxxxxx, President/Sr. V.P. of
COMMUNITY BANK SHARES OF INDIANA, INC. AND/OR COMMUNITY BANK OF KENTUCKY, INC.
("Lessee"), a Kentucky limited liability company, on behalf of such entity.
/s/ Xxxxxxx Hendrecs
--------------------------------
Notary Public
95
